P. v. Lee

Filed 9/24/09 P. v. Lee CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Albert T. Harutunian III, Judge. Affirmed.

Anthony Bernard Lee appeals a judgment following his jury convictions of one count of transporting cocaine base (Health & Saf. Code,  11352, subd. (a)) and one count of possessing cocaine base for sale (Health & Saf. Code,  11351.5). The jury also found true allegations he had five prison prior convictions (Pen. Code,  667.5, subd. (b), 668).[1] On appeal, Lee contends: (1) the trial court erred by denying his request to represent himself; (2) there is insufficient evidence to support a finding he served prison time for one of the section 667.5, subdivision (b), prison prior allegations; and (3) the trial court erred by instructing with a version of CALCRIM No. 220 because it did not instruct that the People must prove each element of the charged offenses beyond a reasonable doubt.

FACTUAL AND PROCEDURAL BACKGROUND

On September 5, 2007, police stopped a car driven by Lee. As an officer attempted to handcuff him, Lee threw something on the floorboard behind his seat. Lee then struggled with officers, who were able to remove a plastic baggie from his hand. Lee was handcuffed.

Officers found a plastic baggie Lee had thrown onto the floorboard. It contained 4.48 grams of cocaine base. The plastic baggie removed from Lee's hand contained 0.36 grams of cocaine base. Lee had empty plastic baggies, $70 in cash, and a cellular telephone in his possession.

An information charged Lee with one count of transporting cocaine base (Health & Saf. Code,  11352, subd. (a)) and one count of possessing cocaine base for sale (Health & Saf. Code,  11351.5). It also alleged he had seven no-probation prior felony convictions ( 1203, subd. (e)(4)), five prison prior convictions ( 667.5, subd. (b), 668), and one prior strike conviction ( 667, subds. (b)-(i)). The jury found Lee guilty of both offenses and found true the enhancement allegations. The trial court imposed an eight-year prison term for transporting cocaine base, imposed but stayed an eight-year term for possessing cocaine base for sale, and imposed five consecutive one-year enhancements for Lee's prison prior convictions, a total term of 13 years.

Lee timely filed two notices of appeal.

DISCUSSION

I

Trial Court's Denial of Lee's Faretta Request to Represent Himself

Lee contends the trial court erred by denying his Faretta[2] request to represent himself.

A

On November 7, 2007, Lee made a Marsden[3] motion for appointment of new counsel to replace his then current counsel, Ronald Brahms. At the Marsden hearing, Lee complained his counsel was ineffective and had not investigated his case, communicated with him, or given him transcripts of prior proceedings that he requested. Lee also complained his counsel did not contact former President Clinton, who had told him he would loan him $25,000 to bail him out of jail. Lee claimed to have spoken with former President Clinton two to three weeks earlier. The trial court apparently denied Lee's Marsden motion, suspended the criminal proceedings against him, and ordered that he undergo a section 1368 mental competency examination.

On December 5, 2007, Lee was found incompetent to stand trial and was committed to a psychiatric hospital. On February 11, 2008, based on a psychiatric reevaluation, the court found Lee was competent to stand trial.

Also on February 11, 2008, Lee filed a motion to "recuse" Brahms as his counsel "for cause" because of a purported conflict of interest. Lee also sought removal of his case to South Africa on the ground he was not a party to the United States Constitution. On February 19, Lee filed a similar motion to recuse Brahms as his counsel. On that date, the trial court ordered that Lee undergo another competency examination.

On March 27, 2008, a San Diego County forensic psychiatrist reported Lee was competent to stand trial, concluding he was malingering or faking his mental illness to avoid trial. The report conveyed Lee's claim to the psychiatrist that he had no reason to fake his illness to delay his trial because: " 'I [Lee] can avoid trial . . . who's going to represent me . . . I can't go to trial until I get a lawyer!' " The report stated Lee then "hinted that he would just continue to refuse to have a lawyer, resulting in a failure to have a trial since he would not have legal representation."

At a March 28, 2008, hearing to set a competency trial date, Lee stated he refused to let Brahms represent him, asserting he provided ineffective assistance and had not filed any motions in his case. Lee asserted Brahms was "high" or "drunk." The court then held a Marsden hearing on Lee's request for appointment of new counsel. Lee told the court he wanted new counsel because Brahms "is on drugs" and he thought Brahms "is sleeping with my wife." Also, Lee claimed Brahms was doing nothing for him and, in particular, had not filed any motions, talked to him outside of court, or contacted any witnesses. Brahms replied to the assertions, stating he had repeatedly met with Lee, was not sleeping with Lee's wife, and was not on drugs. The court denied Lee's motion for new counsel to represent him in his competency case, instructing Lee that he could renew his request for new counsel in his criminal case if and when it was reinstated.

On May 13, 2008, a jury trial on Lee's mental competency was conducted. The jury found Lee was competent to stand trial. The trial court reinstated the criminal proceedings against Lee.

On June 11, 2008, a readiness conference was held. Although the court's minutes show Lee was present at the conference, at a subsequent hearing his counsel confirmed that Lee had been present, but was returned to jail without seeing the judge.

On June 24 and June 25, 2008, further hearings were held at which Lee was not present. The court minutes for those hearings state Lee "refuses to come to court and also refuses to get dressed."

On July 16, 2008, Lee appeared before the court and filed a "Wendy" [sic] motion for appointment of new counsel based on Brahms's purported ineffective assistance. The court held a Marsden hearing during which Lee reasserted his previous claims and added a claim that Brahms was trying to "steal [his] thoughts." The court denied Lee's Marsden motion. Lee then stated: "I would like to go pro per." The court informed him that his request would have to be made in open court.

When the proceedings reconvened in open court, Lee confirmed that he was requesting to appear in propria persona and represent himself at trial (scheduled to begin that day). Lee stated he had not made the request before because he had not seen the judge since he had been found competent to stand trial on May 13, 2008. When the court noted Lee had recently requested appointment of new counsel, he replied that if he were forced to have Brahms as his attorney he would rather "fight [his] own case." The court asked Lee whether he would be prepared to begin the trial that day if the court granted his self-representation motion or whether he would need more time to prepare. Lee answered that he would need at least 45 days to prepare his case. The court denied Lee's motion as untimely. It found that a panel of prospective jurors was waiting to begin jury selection and Lee had prior opportunities to request self-representation. The court also found Lee's request for self-representation was "strictly in reaction" to the court's denial of his Marsden motion.

B

In Faretta, the United States Supreme Court held the right to self-representation is necessarily implied in the Sixth Amendment of the United States Constitution.[4] (Faretta, supra, 422 U.S. at p. 819.) A waiver of the right to counsel and election of self-representation must be intelligent and voluntary. (Id. at pp. 819, 835.)

In People v. Windham (1977) 19 Cal.3d 121, at page 128 (Windham), the court noted that Faretta applies to California criminal proceedings:

"[W]hen a motion to proceed pro se is timely interposed, a trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be." (Original italics.)

A defendant's motion for self-representation is timely if it is unequivocally asserted "within a reasonable time prior to the commencement of trial." (Windham, at p. 128, fn. omitted.) The court noted:

"For example, a defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request." (Id. at p. 128, fn. 5, italics added.)

If a self-representation request is untimely, a trial court has discretion to grant or deny that request and "shall inquire sua sponte into the specific factors underlying the request," including: "[1] the quality of counsel's representation of the defendant, [2] the defendant's prior proclivity to substitute counsel, [3] the reasons for the request, [4] the length and stage of the proceedings, and [5] the disruption or delay which might reasonably be expected to follow the granting of such a motion." (Windham, at p. 128.) In People v. Burton (1989) 48 Cal.3d 843, the court stated: "The 'reasonable time' requirement is intended to prevent the defendant from misusing the [self-representation] motion to unjustifiably delay trial or obstruct the orderly administration of justice." (Id. at p. 852, italics added.)

Courts have applied this timeliness requirement to deny Faretta motions made shortly before trial with requests for continuances. In People v. Frierson (1991) 53 Cal.3d 730, at page 740 (Frierson), the defendant made a Faretta motion two days before trial and also requested a 60-day continuance. The court concluded the self-representation motion was untimely because it was not made within a reasonable period before commencement of the trial. (Frierson, at p. 742.) In People v. Ruiz (1983) 142 Cal.App.3d 780, at pages 784 to 791, the court concluded a Faretta motion made six days before a scheduled trial date[5] was untimely because the motion was conditioned on a trial continuance. After the trial court informed the defendant that it would deny his request for a continuance, the defendant withdrew his Faretta motion and requested representation by counsel. (People v. Ruiz, supra, 142 Cal.App.3d at pp. 786, 789.) The court concluded the trial court's refusal to grant a continuance was in effect a denial of the Faretta motion. (Ruiz, at p. 789.) However, because the motion was necessarily conditioned on the granting of a continuance, the court concluded the motion was untimely. (Id. at p. 791.) In People v. Moore (1988) 47 Cal.3d 63, at pages 78 to 79, the court concluded a Faretta motion made on the Friday before a trial scheduled to begin the following Monday was untimely because the defendant also requested a continuance to prepare for trial. In People v. Clark (1992) 3 Cal.4th 41, at pages 99 to 100, the court concluded the trial court had discretion to deny a Faretta motion because it was made when the trial date was being continued on a day-to-day basis and was in effect made on the eve of trial and untimely. In People v. Rudd (1998) 63 Cal.App.4th 620, at pages 625 to 626, the court concluded a Faretta motion made on the Friday before a trial scheduled to begin the following Monday was untimely.

A trial court has broad discretion in determining whether to grant or deny an untimely self-representation motion. (People v. Hardy (1992) 2 Cal.4th 86, 196-197 (Hardy).) "When a trial court exercises its discretion to deny a motion for self-representation on the grounds it is untimely, a reviewing court must give 'considerable weight' to the court's exercise of discretion and must examine the total circumstances confronting the court when the decision is made. [Citation.]" (People v. Howze (2001) 85 Cal.App.4th 1380, 1397-1398.)

C

Based on the record in this case, Lee's motion for self-representation was untimely because it was not made "within a reasonable time prior to the commencement of trial." (Windham, supra, 19 Cal.3d at p. 128, fn. omitted.) Furthermore, the record supports the trial court's implied finding that Lee did not make a "showing of reasonable cause for the lateness of the request." (Id. at p. 128, fn. 5, italics added.) The court found Lee had prior opportunities to request self-representation. At the June 11, 2008, conference Lee was initially present, but apparently was returned to jail before seeing the judge (presumably based on his actions or request). Similarly, Lee did not appear at the June 24 and 25 hearings because he voluntarily chose not to get dressed and attend those hearings. Therefore, Lee had previous opportunities to request self-representation, but chose not to avail himself of those opportunities. Because his Faretta motion was made on the first day of trial without reasonable cause for its lateness, his motion was untimely and the trial court then had discretion to grant or deny it.[6] (Windham, supra, 19 Cal.3d at p. 128, fn. 5; People v. Clark, supra, 3 Cal.4th at pp. 99-100; People v. Rudd, supra, 63 Cal.App.4th at pp. 625-626.)

Furthermore, reading the record as a whole, it appears Lee's motion to represent himself was not unconditional, but was implicitly, if not explicitly, conditioned on the grant of a continuance of the trial (e.g., at least 45 days). When the court asked Lee whether he would be prepared to begin the trial that day if the court granted his self-representation motion or whether he would need more time to prepare, he answered that he would need at least 45 days to prepare his case. Based on the record, Lee's Faretta motion was in effect conditioned on a continuance of the trial. This case is similar to those cases discussed above in which Faretta motions were deemed untimely because they were made shortly before trial with a request or condition that the trial be continued. (See, e.g., Frierson, supra, 53 Cal.3d at p. 740 [motion made two days before trial with request for 60-day continuance]; People v. Ruiz, supra, 142 Cal.App.3d at pp. 784-791 [motion made six days before trial on condition trial be continued]; People v. Moore, supra, 47 Cal.3d at pp. 78-79 [motion made on Friday before a trial scheduled to begin the following Monday was untimely because the defendant also requested a continuance to prepare for trial].)

Because Lee's motion for self-representation was untimely, the trial court had discretion to grant or deny it. (Hardy, supra, 2 Cal.4th at pp. 196-197.) In exercising that discretion, the trial court was required to consider "the specific factors underlying the request," including: "[1] the quality of counsel's representation of the defendant, [2] the defendant's prior proclivity to substitute counsel, [3] the reasons for the request, [4] the length and stage of the proceedings, and [5] the disruption or delay which might reasonably be expected to follow the granting of such a motion." (Windham, supra, 19 Cal.3d at p. 128.) Based on the record in this case, it appears the trial court, in denying Lee's Faretta motion conditioned on a continuance of trial, implicitly, if not explicitly, considered those factors. (People v. Marshall (1996) 13 Cal.4th 799, 828 [explicit or implicit consideration of Windham factors was sufficient]; People v. Scott (2001) 91 Cal.App.4th 1197, 1206 [implicit consideration of Windham factors was sufficient]; People v. Perez (1992) 4 Cal.App.4th 893, 904-905.)

In conducting the Marsden hearing immediately preceding Lee's Faretta motion, the court expressly considered the quality of representation by Lee's counsel and concluded there was no basis on which to relieve his counsel.[7] That consideration presumably carried over into the court's consideration of Lee's subsequent Faretta motion. The record also supports an implicit finding by the trial court that Lee had a prior proclivity in repeatedly attempting to substitute counsel. Lee made three or four Marsden motions before July 16, 2008 (i.e., the date of his Faretta motion). (Cf. People v. Scott, supra, 91 Cal.App.4th at p. 1206 [defendant's two Marsden motions showed he "had a proclivity for trying to substitute counsel"].) The record supports an implied finding by the trial court that Lee's self-representation request was made solely for the purpose of delaying the trial. The People argued Lee's request was made solely to delay the criminal proceedings against him. Lee stated he would require at least 45 days to prepare for trial. The court found Lee's request for self-representation was "strictly in reaction" to the court's denial of his Marsden motion. The court implicitly found Lee's request for self-representation was made for the purpose of delaying his trial.

The court also was aware of the length and stage of the proceedings at that point (i.e., the first day of trial following many months of pretrial proceedings). Finally, the court presumably considered "the disruption or delay which might reasonably be expected to follow the granting of [the] motion." (Windham, supra, 19 Cal.3d at p. 128.) In requesting self-representation, Lee stated he would need at least 45 days to prepare for trial were his request granted. Therefore, the court could reasonably conclude a grant of Lee's untimely Faretta motion would delay the trial by at least 45 days. Based on its consideration of those factors and its finding that Lee's motion for self-representation was made for purposes of delay, we conclude the trial court did not abuse its discretion by denying that untimely motion. (Windham, at p. 128; Hardy, supra, 2 Cal.4th at p. 196; People v. Perez, supra, 4 Cal.App.4th at pp. 904-905; People v. Scott, supra, 91 Cal.App.4th at p. 1206.)

II

Section 667.5, Subdivision (b), Enhancement

Lee contends there is insufficient evidence to support a finding he served prison time for one of the prison prior convictions under the section 667.5, subdivision (b), enhancement allegations.

A

The information alleged Lee had served a separate prison term for a section 4573.8 felony conviction on April 20, 2004, in San Diego County Superior Court Case No. SCS176178 and had not remained free of prison custody and free of commission of a felony conviction for five years subsequent to his release from prison for that section 4573.8 felony conviction within the meaning of sections 667.5, subdivision (b), and 668. At trial, the jury was instructed on that allegation: "To prove this allegation, the People must prove that: [] 1. [Lee] served a separate prison term for . . . [] . . . [] [a] violation of Penal Code section 4573.8, SCS176178 . . . [] . . . AND [] 2. [Lee] did not remain out of prison custody for [five] years after he was no longer in prison custody for that crime."

The evidence presented by the People to prove that section 667.5, subdivision (b), allegation included Lee's plea form in which he pleaded guilty on April 20, 2004, to the section 4573.8 offense. That plea form included the stipulation that Lee receive credit for all time served in local and state custody since April 2, 2003 (i.e., the date on which the  4573.8 offense was committed). The People's evidence also included the trial court's April 20, 2004, minutes reflecting Lee's guilty plea and the court's imposition of a sentence of 16 months, with credit for time served in local custody of 356 days and an additional 168 days under section 4019 for a total of 524 days of credit. The minutes stated: "Per [section] 1170[, subdivision (a),] the defendant is released to report to the parole officer in Chula Vista." The People also presented two abstracts of judgment reflecting Lee's conviction of the section 4573.8 offense, sentence of 16 months, and credit of 524 days for actual days served in local custody and related conduct credits. The abstracts also stated: "Per [section] 1170[, subdivision (a)(3)], the defendant is released to report to the parole office in Chula Vista."

The jury found true the section 667.5, subdivision (b), allegation regarding Lee's section 4573.8 conviction and that he "served a separate prison term for such offense." Based on that true finding, the trial court imposed a one-year enhancement consecutive to Lee's eight-year prison term for transportation of cocaine base (along with consecutive one-year enhancements for Lee's four other prison priors).

B

Section 667.5 provides: "Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: [] . . . [] (b) . . . [W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction. [] . . . [] (e) The additional penalties provided for prior prison terms shall not be imposed for any felony for which the defendant did not serve a prior separate term in state prison." (Italics added.) The People must prove the following elements for a section 667.5, subdivision (b), enhancement: "[T]hat the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. [Citation.]" (People v. Tenner (1993) 6 Cal.4th 559, 563.)

Generally, under California's statutory sentencing scheme, a "prison 'term' is the actual time served in prison before release on parole . . . ." (People v. Jefferson (1999) 21 Cal.4th 86, 95, italics omitted.) However, in the context of section 667.5, the Legislature has specifically provided when presentencing or preimprisonment local or state custody credits awarded to a defendant exceed the sentence imposed, "the entire sentence shall be deemed to have been served" and the sentence "shall be deemed a separate prior prison term underSection 667.5." ( 1170, subd. (a)(3).)

Section 1170.3, subdivision (a)(3), provides in pertinent part: "In any case in which the amount of preimprisonment credit under Section 2900.5 or any other provision of law is equal to or exceeds any sentence imposed pursuant to this chapter, the entire sentence shall be deemed to have been served and the defendant shall not be actually delivered to the custody of the secretary. The court shall advise the defendant that he or she shall serve a period of parole and order the defendant to report to the parole office closest to the defendant's last legal residence, unless the in-custody credits equal the total sentence, including both confinement time and the period of parole. The sentence shall be deemed a separate prior prison term under Section 667.5, and a copy of the judgment and other necessary documentation shall be forwarded to the secretary." (Italics added.) Likewise, section 2900.5, subdivision (a), provides in pertinent part: "In all felony and misdemeanor convictions, . . . when the defendant has been in custody, including . . . any time spent in a jail . . . , all days of custody of the defendant, . . . including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment . . . . If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served. . . ."[8] (Italics added.)

Accordingly, in People v. White (1987) 196 Cal.App.3d 967, we concluded:

"[S]ection 667.5 unambiguously encompasses prison terms of at least one continuous year of custody even though the actual time spent in a state penitentiary is less than one year. To exempt recidivists who compile extensive presentence credits because of delays in prior judicial proceedings while enhancing repeat offenders whose early prior pleas to identical crimes with identical prison sentences is irrational." (Id. at pp. 972-973.)

People v. Hayes (1992) 3 Cal.App.4th 1238 agreed with our reasoning in White and concluded the 12-month period spent in jail by the defendant before entering prison for eight months constituted service of a prison term. (Hayes, at pp. 1249-1250.) Accordingly, Hayes held that the defendant "served a total of over 20 months in prison" for purposes of section 667.5. (Hayes, at p. 1249, italics added.)

C

Lee asserts there is insufficient evidence to support a true finding on the section 667.5, subdivision (b), allegation regarding his section 4573.8 conviction because there is no evidence he actually served any prison time for that conviction. He argues that because he received credit of 524 days (i.e., over 17 months) for presentencing local custody served toward his prison term of 16 months and therefore was released without serving any actual time in prison, he cannot be subject to a one-year enhancement for a prior prison felony conviction under section 667.5, subdivision (b).

However, as discussed above, section 667.5, subdivision (b), does not require a defendant actually serve at least one year in prison for its sentence enhancement to apply. Rather, in cases in which the defendant receives credit for service of presentencing or preimprisonment time in local or state custody (e.g., 17 months) in excess of the prison term imposed (e.g., 16 months), that presentencing time served is deemed to be service of the prison term for purposes of section 667.5, subdivision (b). ( 667.5, subd. (b), 1170, subd. (a)(3), 2900.5, subd. (a); People v. White, supra, 196 Cal.App.3d at pp. 972-973; People v. Hayes, supra, 3 Cal.App.4th at pp. 1249-1250.) Based on the record in this case, Lee was credited with over 17 months served in local custody against his 16-month prison term imposed for his prior section 4573.8 conviction and was therefore released without serving any actual time in prison for that conviction. Nevertheless, he is deemed to have served time in prison for that 16-month term based on the local custody credit he received against that term. We conclude Lee has not carried his burden on appeal to show there is insufficient evidence to support the one-year enhancement imposed by the trial court for his prior section 4573.8 conviction.

III

CALCRIM No. 220

Lee contends the trial court erred by instructing with a version of CALCRIM No. 220 that did not instruct the People must prove each element of the charged offenses beyond a reasonable doubt.

A

The trial court instructed with the August 2006 version of CALCRIM No. 220 in pertinent part: "A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise."[9]

The court also instructed on each element of the charged crimes, including instruction that the People must prove each of those elements for the defendant to be found guilty. The court instructed with CALCRIM No. 2300: "The defendant is charged in Count One with transporting Cocaine Base, a controlled substance. [] To prove that the defendant is guilty of this crime, the People must prove that: [] 1. The defendant transported a controlled substance; [] 2. The defendant knew of its presence; [] 3. The defendant knew of the substance's nature or character as a controlled substance; [] AND [] 4. The controlled substance was cocaine base[;] [] AND [] 5. The controlled substance was in a usable amount." The court also instructed with CALCRIM No. 2302: "The defendant is charged in Count Two with possession for sale of Cocaine Base, a controlled substance. [] To prove that the defendant is guilty of this crime, the People must prove that: [] 1. The defendant unlawfully possessed a controlled substance; [] 2. The defendant knew of its presence; [] 3. The defendant knew of the substance's nature or character as a controlled substance; [] 4. When the defendant possessed the controlled substance, he intended to sell it; [] 5. The controlled substance was Cocaine Base; [] AND [] 6. The controlled substance was in a usable amount."

B

"Under the United States Constitution and California law, the government must prove each element of a charged offense beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5 (Victor); People v. Cole (2004) 33 Cal.4th 1158, 1208;  1096.) Whether an instruction correctly conveys this standard must be determined by examining the instruction in the context of all the instructions given the jury. [Citations.]" (People v. Wyatt (2008) 165 Cal.App.4th 1592, 1601(Wyatt).) In reviewing the correctness of reasonable doubt instructions, the proper inquiry is "whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the [In re Winship (1970) 397 U.S. 358, 364] standard [requiring proof of each element beyond a reasonable doubt]." (Victor, at p. 6.)

"We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. [Citation.] Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.] ' "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." [Citation.]' [Citation.] 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088 (Ramos).)

C

Lee asserts the trial court erred by instructing with the August 2006 version of CALCRIM No. 220 because that instruction omitted the requirement that the People prove each element of the charged offense beyond a reasonable doubt.[10] He notes the prior version of CALCRIM No. 220 included language expressly requiring such proof of each element.[11] Lee argues: "With the instructions given in this case, the jury could have applied a gestalt approach to the concept of reasonable doubt, and decided that because most elements had been proven beyond a reasonable doubt, and others by a lesser standard, the totality was proof beyond a reasonable doubt. The jury could therefore return a verdict of guilty without a finding of beyond a reasonable doubt as to every [] material element."

We are unpersuaded by Lee's argument because it ignores the requirement that jury instructions be considered as a whole. (Ramos, supra, 163 Cal.App.4th at p. 1088.) "Whether an instruction correctly conveys [the proof of each element beyond a reasonable doubt] standard must be determined by examining the instruction in the context of all the instructions given the jury. [Citations.]" (Wyatt, supra, 165 Cal.App.4th at p. 1601.) Considering all of the instructions as a whole, we conclude the jury was adequately instructed that the People were required to prove each element of a charged offense beyond a reasonable doubt. CALCRIM No. 220, as given by the trial court, instructed the jury: "Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise." (Italics added.)

The court also instructed with CALCRIM Nos. 2300 and 2302 on each of the elementsthe People must prove to prove Lee is guilty of the charged offenses of transporting cocaine base and possessing cocaine base for sale. The court did not specifically instruct the jury that the People's burden to prove each element of those charged offenses could be by proof other than proof beyond a reasonable doubt. Therefore, the possible exception to the standard burden of proof set forth in CALCRIM No. 220 did not apply and the jury was required to apply the proof beyond a reasonable doubt standard to each element of the charged crimes required to be proved by the People. Considering the court's instructions together, there is no reasonable likelihood the jury understood the instructions to allow Lee to be convicted of those offenses on less than proof of each element beyond a reasonable doubt.[12] (Victor, supra, 511 U.S. at p. 6.) We conclude the trial court adequately instructed the jury that each element of the charged crimes must be proved by the People beyond a reasonable doubt. (Ramos, supra, 163 Cal.App.4th at pp. 1087-1090; Wyatt, supra, 165 Cal.App.4th at pp. 1600-1601.)

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

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[1] All further statutory references are to the Penal Code unless otherwise specified.

[2]Faretta v. California (1975) 422 U.S. 806 (Faretta).

[3]People v. Marsden (1970) 2 Cal.3d 118.

[4] The rights set forth in the Sixth Amendment apply to defendants in state criminal trials through the Fourteenth Amendment's due process clause. (Faretta, supra, 422 U.S. at p. 818.)

[5] The defendant moved to represent himself on the Friday before a Thursday scheduled trial date. (People v. Ruiz, supra, 142 Cal.App.3d at p. 784.)

[6] For purposes of this opinion, we assume arguendo that Lee's Faretta motion was unequivocal.

[7] The trial court stated: "Mr. Brahms is an experienced attorney. He is able to analyze what the facts are that are being presented in this case to determine whether there is any appropriate, valid, helpful, motion that could be brought. In fact, he has brought a motion, a very significant motion to exclude the priors . . . . [] And Mr. Brahms asked for and got a ruling that all of that will be reserved until the jury first makes a decision whether or not the current charge is one that you are guilty of or not. So, that is a very significant benefit to you as a result of a request from the defense attorney. [] . . . [H]e has all the discovery in the case in terms of who the People's witnesses are, what they're going to be saying, familiar with the preliminary hearing . . . ." The court concluded: "I think that what has been described is quality representation and . . . any problems that exist are as a result of [Lee's] unwillingness . . . to work with [Brahms] and is not because of [Brahms's] unwillingness or inability to work with [Lee]. And therefore, the [Marsden] motion is denied." (Italics added.)

[8] Section 4019, subdivision (f), provides: "It is the intent of the Legislature that if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody." (Italics added.)

[9] CALCRIM No. 220, as given by the trial court, states in its entirety: "The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime or brought to trial. [] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise. [] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. [] Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."

[10] We are not persuaded by the People's argument that Lee forfeited this contention by not objecting to the instruction at trial. Lee is asserting the purported error affected his substantial rights. Accordingly, we may review the adequacy of the challenged instruction whether or not Lee objected at trial. ( 1259; Ramos, supra, 163 Cal.App.4th at p. 1087.)

[11] Before August 2006, CALCRIM No. 220 instructed in pertinent part: " This presumption requires that the People prove each element of a crime . . . beyond a reasonable doubt.' " (Ramos, supra, 163 Cal.App.4th at p. 1088, fn. 3.)

[12] The trial court's instruction with CALCRIM No. 224 on circumstantial evidence did not confuse the jury or otherwise allow it to apply a lower standard of proof regarding each element of the charged offenses. CALCRIM No. 224 stated in part: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt." There is no reasonable likelihood the jury understood that instruction, when considered with the instructions as a whole, to allow facts proved by direct testimony (and therefore Lee's guilt of the charged offenses) to be proved by a standard lower than proof beyond a reasonable doubt.