gno.law

P. v. Chestang CA4/1

California Court of Appeal · D061320 · 2013-05-31 · Unpublished

Proceeding
appeal from a judgment
Trial court
Superior Court of San Diego County · No. SCD235702
Trial judge
Louis R. Hanoian
Outcome
modified — Affirmed as modified.
Area
criminal
Panel
McINTYRE (author), O'Rourke, Cynthia Aaron

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:54Z · confidence high

The trial court denied the defendant's motion to represent himself and imposed a one-third term for a firearm enhancement attached to a subordinate count. The Court of Appeal affirmed the denial of the self-representation motion but modified the sentence to impose the full ten-year term for the enhancement.

Ruling reviewedStandardThe courtThe model
Denial of Faretta motion to represent himself
“Because Chestang's request to represent himself was untimely and equivocal, the court acted well within its discretion when it denied the motion.”
abuse of discretioncorrectagree with court
The appellate court correctly applied the abuse of discretion standard and relied on established California authority (People v. Marshall, People v. Lynch) to determine that a request made on the first day of trial was untimely and the defendant's conduct was equivocal, thus supporting the trial court's denial.
Imposition of one-third term for firearm enhancement on subordinate count
“Where, as here, a firearm use enhancement is appended to a crime in which an indeterminate term is imposed, it must be applied at full strength because the fact that the enhancement is determinate does not render it subordinate within the meaning of section 1170.1.”
de novoerroragree with court
The appellate court correctly identified that the trial court erred in applying the one-third rule to an enhancement attached to an indeterminate life term, as the consecutive sentencing scheme of section 1170.1 does not apply to indeterminate terms under the Three Strikes Law.

Authorities

  • relied: Faretta v. California (1975) 422 U.S. 806 — Establishes the Sixth Amendment right to self-representation.
  • relied: People v. Marshall (1996) 13 Cal.4th 799 — Sets forth factors for evaluating the timeliness and validity of a Faretta motion, including the stage of proceedings and potential disruption.
  • relied: People v. Lynch (2010) 50 Cal.4th 693 — Holds that Faretta motions made on the eve of trial are generally untimely.
  • relied: People v. Williams (2004) 34 Cal.4th 397 — Holds that the consecutive sentencing scheme of section 1170.1 does not apply to indeterminate life terms for three strikes defendants.
  • relied: People v. Lyons (1999) 72 Cal.App.4th 1224 — Holds that conduct-based enhancements appended to a crime with an indeterminate term must be applied at full strength.

The appellate opinion: sound — The opinion is sound because it correctly applies the abuse of discretion standard to the Faretta issue using controlling precedent and correctly identifies the legal error regarding the sentencing enhancement for indeterminate terms. The reasoning is clear and supported by the cited authorities.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

The trial court denied Chestang's first-day-of-trial request for self-representation as untimely after denying his Marsden motion, and sentenced him under the Three Strikes law to 50 years to life plus 23 years four months, imposing only one-third (three years four months) of the section 12022.53, subdivision (b) firearm enhancement on count 2. The Court of Appeal held the Faretta denial was within the trial court's discretion because the request was untimely and equivocal, agreed with the Attorney General that the one-third enhancement term was an unauthorized sentence, modified the judgment to impose the full consecutive ten-year term on count 2, and affirmed as modified.

Ruling reviewedStandardThe courtThe model
Denial of defendant's request to represent himself (Faretta motion) made on the first day of trial after denial of a Marsden motion
“Because Chestang's request to represent himself was untimely and equivocal, the court acted well within its discretion when it denied the motion.”
abuse of discretioncorrectagree with court
A Faretta request made on the first day of trial is untimely under Windham and Lynch, so the trial court had discretion to deny it after weighing the Marshall/Windham factors. Although the trial court denied the request summarily after asking only whether Chestang was ready 'right now,' the appellate court reasonably looked to the full Marsden record, which showed competent representation, a request motivated by frustration with counsel's candid assessment, and inevitable delay. The request was also tentative ('he may request a pro per status'), supporting the equivocation finding under Marshall (1997). The result is supported by the cited authorities, though the court did not cite authority for curing the trial court's lack of inquiry by reference to the record.
Imposition of one-third of the ten-year section 12022.53, subdivision (b) firearm enhancement (three years four months) on count 2, a Three Strikes indeterminate term
“Where, as here, a firearm use enhancement is appended to a crime in which an indeterminate term is imposed, it must be applied at full strength because the fact that the enhancement is determinate does not render it subordinate within the meaning of section 1170.1.”
de novoerror (law misapplied)agree with court
Section 1170.1's principal/subordinate one-third scheme applies only to determinate terms; Williams and Nguyen hold it has no application to Three Strikes indeterminate sentences, and Lyons holds that a conduct enhancement attached to an indeterminate count must be imposed in full. Section 12022.53, subdivision (b) mandates an 'additional and consecutive' ten-year term. The one-third term was therefore unauthorized and correctable on appeal at the People's request under Dotson. The appellate court's correction is legally correct.

Authorities

  • relied: Faretta v. California (1975) 422 U.S. 806 — A criminal defendant has a Sixth Amendment right to conduct his own defense.
  • relied: People v. Windham (1977) 19 Cal.3d 121 — A timely, unequivocal, voluntary and intelligent Faretta request must be granted; untimely requests are addressed to the trial court's discretion, considering specified factors.
  • relied: People v. Marshall (1996) 13 Cal.4th 799 — Factors for evaluating an untimely Faretta request: quality of counsel's representation, defendant's proclivity to substitute counsel, reasons for the request, stage of proceedings, and likely disruption or delay.
  • relied: People v. Marshall (1997) 15 Cal.4th 1 — An equivocal or ambivalent request for self-representation may be denied.
  • relied: People v. Lynch (2010) 50 Cal.4th 693 — Faretta motions made on the eve of trial are untimely.
  • relied: People v. Jenkins (2000) 22 Cal.4th 900 — Recognizes the constitutional right of self-representation.
  • relied: People v. Williams (2004) 34 Cal.4th 397 — The consecutive sentencing scheme of section 1170.1 does not apply to indeterminate life terms or to Three Strikes sentencing calculations.
  • relied: People v. Nguyen (1999) 21 Cal.4th 197 — Section 1170.1 has no application to indeterminate three strikes terms.
  • relied: People v. Lyons (1999) 72 Cal.App.4th 1224 — A determinate conduct enhancement attached to an indeterminate Three Strikes term must be imposed at full strength, not one-third.
  • relied: People v. Dotson (1997) 16 Cal.4th 547 — An unauthorized sentence may be corrected at any time, including on appeal.
  • missed: People v. Dent (2003) 30 Cal.4th 213 — When a trial court denies a Faretta request on an improper or inadequately stated basis, the reviewing court may uphold the ruling only if the record as a whole establishes the request was properly denied on other grounds; relevant to the appellate court's reliance on the Marsden record to supply the inquiry the trial court did not conduct.

The appellate opinion: sound with gaps — The court correctly applied Windham, Marshall and Lynch to a first-day-of-trial request that counsel described only tentatively, and correctly applied Williams, Nguyen and Lyons to require a full ten-year firearm enhancement on an indeterminate Three Strikes term. It did not cite authority (such as Dent) for affirming a summary Faretta denial by looking to the whole record when the trial court made no inquiry, and its treatment of the equivocation point is brief.

How this analysis was made · dispute it

Opinion

Filed 5/31/13 P. v. Chestang 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

THE PEOPLE, D061320

Plaintiff and Respondent, v. (Super. Ct. No. SCD235702)

TYRECE RENE CHESTANG,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Louis R.

Hanoian, Judge. Affirmed as modified.

Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Ronald A.

Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

Tyrece Rene Chestang and a cohort robbed and beat two individuals while Chestang was armed with a handgun and his cohort brandished a knife. An information charged the men with two counts of first degree robbery (counts 1 and 2) and one count of attempting to dissuade a witness (count 3). It was alleged that Chestang personally used a firearm in the commission of both robberies and that his cohort personally used a knife for the crimes. The information further alleged that Chestang was previously convicted of two felonies that qualified as prison priors, serious felonies and strike priors.

A jury found both men guilty as charged on all counts and enhancements.

Chestang admitted all prior conviction allegations. The trial court sentenced Chestang to a total of 50 years to life, plus 23 years and four months in prison.

Chestang timely appealed from the judgment claiming the trial court erred in denying his pretrial motion to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta). The Attorney General asserts the trial court did not abuse its discretion in denying the motion and that Chestang received an unauthorized sentence because the trial court did not impose a full strength term on the firearm use enhancement attached to count 2. We agree with the Attorney General.

DISCUSSION

I. Denial of Faretta Motion A. Facts On the first day of trial, defense counsel informed the court that Chestang wished to bring a motion for substitution of appointed counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The trial court conducted a Marsden hearing outside the presence of the prosecutor. Chestang complained that defense counsel continuously told him that he had "a no-win case." He stated that counsel had a "nonchalant attitude to questions"

2 he posed regarding the case, telling him, "[H]ow does that help[?] I don't see it, a jury won't buy it, the jury won't agree to it." Chestang complained that counsel failed to obtain photographs and fingerprint evidence. Chestang did not feel that counsel had conducted a thorough investigation or that he had "an effective defense strategy."

Chestang believed that counsel had not "aggressively pursued anything as far as just trying to get [him] off" and just pressured him to "take a deal" in the case.

Defense counsel responded to Chestang's allegations, explaining that he visited Chestang a couple of times, discussed the case with him, inquired about witnesses to investigate, subpoenaed a witness that Chestang had asked about and canvassed the crime scene. Counsel recently gave Chestang an opportunity to talk to him, but Chestang hung up on him and refused to talk to him anymore. Counsel claimed he told Chestang about deals and never pressured Chestang to take any deal, but was honest with Chestang about the evidence and the chances of success at trial, which upset Chestang. After Chestang reiterated his complaints, defense counsel told the court that he had possession of the photographs and that to the best of his knowledge, the prosecutor never sought any fingerprint analysis which was "advantageous to . . . Chestang at this point."

The trial court denied the Marsden motion, explaining that counsel had obtained discovery, investigated the case and followed up on Chestang's leads, but that strategy and trial tactics were counsel's decisions to make. Defense counsel then indicated that Chestang had told him earlier that "he may request a pro per status." The trial court asked if Chestang was ready for trial "right now." Chestang replied, "Not just this moment, no." The trial court replied, "Then it's not timely."

3 B. Analysis A criminal defendant has the right under the Sixth Amendment of the federal Constitution to conduct his or her own defense. (Faretta, supra, 422 U.S. at p. 819;

People v. Jenkins (2000) 22 Cal.4th 900, 959.) Accordingly, when a defendant voluntarily and intelligently makes a timely, unequivocal assertion of the right to proceed pro se, the court must honor that request regardless of how unwise the decision may seem. (People v. Windham (1977) 19 Cal.3d 121, 127–128.) The right to self- representation must be invoked within a reasonable time before the commencement of trial and the trial court should consider the quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay that might reasonably be expected to follow the granting of such a motion. (People v. Marshall (1996) 13 Cal.4th 799, 827.)

Chestang contends the trial court abused its discretion in denying his Faretta motion without any inquiry into the circumstances behind the request solely because it was brought on the first day of trial. Although the trial court could have conducted a more thorough inquiry regarding Chestang's request, review of the entire record shows that the request was untimely and equivocal. Accordingly, the court acted within its discretion in denying it.

On the first day of trial, Chestang moved to replace his counsel under Marsden.

The trial court conducted a thorough hearing on the issue, finding that defense counsel had provided effective assistance of counsel, and explaining to Chestang that counsel was 4 not required to discuss trial strategy with him and that "tactics change as the case moves on" requiring counsel to "adjust on the fly." After the court denied Chestang's Marsden motion, defense counsel indicated that Chestang "may request a pro per status."

Chestang, however, never formally made a Faretta motion. Chestang's conduct reflected ambivalence about self-representation and supported the trial court's decision to deny the motion. (People v. Marshall (1997) 15 Cal.4th 1, 23.)

Moreover, the record created during the Marsden hearing indicated that Chestang was frustrated with defense counsel because counsel rejected Chestang's suggestions regarding how to defend the case and honestly communicated with Chestang regarding his chances of success at trial. The record does not establish any deficiency in the quality of counsel's representation. Additionally, the timing of the request would reasonably cause disruption or delay in the proceedings. (People v. Marshall, supra, 13 Cal.4th at p.

827.) Our high court has "held on numerous occasions that Faretta motions made on the eve of trial are untimely." (People v. Lynch (2010) 50 Cal.4th 693, 722.) Because Chestang's request to represent himself was untimely and equivocal, the court acted well within its discretion when it denied the motion.

II. Unauthorized Sentence A. Facts The trial court sentenced Chestang to consecutive terms of 25 years to life for the two robberies under the Three Strikes Law. (Pen. Code, §§ 667, subds. (b)–(i), 1170.12, undesignated statutory references are to this code.) For the firearm use enhancement (§ 12022.53, subd. (b)) attached to count 1, the court imposed an additional ten-year 5 term. For the same firearm use enhancement attached to count 2, the prosecutor argued that Chestang should receive a consecutive "full force" sentence. The trial court disagreed. It imposed three years and four months, which constituted one-third of the ten-year term specified under subdivision (b) of section 12022.53.

B. Analysis The Attorney General claims that Chestang received an unauthorized sentence subject to correction on appeal for the firearm use enhancement attached to count 2. She asserts that the firearm use enhancement required the imposition of "an additional and consecutive term of imprisonment in the state prison for ten years." (§ 12022.53, subd. (b).) We agree.

When a defendant is convicted of multiple offenses carrying determinate terms and the trial court imposes consecutive sentences, the count carrying the longest sentence is the "principal term" and the remaining counts are "subordinate." (§ 1170.1, subd. (a).)

Generally, the trial court may impose only one-third of the middle term on a subordinate count and one-third of the term of any enhancement attached to a subordinate count.

(Ibid.) However, " '[t]he consecutive sentencing scheme of section 1170.1 does not apply to indeterminate life terms, and therefore it has no application to sentencing calculations for three strikes defendants' " such as Chestang. (People v. Williams (2004) 34 Cal.4th 397, 402, quoting People v. Nguyen (1999) 21 Cal.4th 197, 205.) Additionally, conduct- based enhancements cannot exist separately from the underlying offense. (People v. Lyons (1999) 72 Cal.App.4th 1224, 1228–1229 (Lyons).)

6 Where, as here, a firearm use enhancement is appended to a crime in which an indeterminate term is imposed, it must be applied at full strength because the fact that the enhancement is determinate does not render it subordinate within the meaning of section 1170.1. (Lyons, supra, 72 Cal.App.4th at p. 1229.) Accordingly, the abstract of judgment must be amended to add a full-term firearm use enhancement to Chestang's indeterminate term under the Three Strikes Law. (Id. at p. 1226; People v. Dotson (1997)

16 Cal.4th 547, 554, fn. 6 [unauthorized sentence may be corrected at any time].)

DISPOSITION

The judgment is modified to reflect a consecutive ten-year term for the Penal Code section 12022.53, subdivision (b) allegation attached to count 2. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting this modification and forward it to the Department of Corrections and Rehabilitation.

MCINTYRE, Acting P. J.

WE CONCUR:

O'ROURKE, J.

AARON, J.

Cites, in this corpus