THE PEOPLE v. ANTHONY GRANDBERRY (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Defendant and appellant Anthony Grandberry (defendant) was convicted of attempted first degree burglary (Pen.Code, §§ 664 and 459 1).  The trial court sentenced defendant to five years in state prison.   On appeal, defendant contends that the trial court violated his due process rights and effectively denied him his right to self-representation under the Sixth Amendment to the United States Constitution.   Defendant, who was in custody prior to and during trial, contends that his rights were violated because the trial court refused to hold a hearing to address restrictions placed on his inmate propria persona (pro.per.) privileges by the Los Angeles County Sheriff's Department (Sheriff's Department).   Defendant also contends that the trial court erred in sentencing him.   We affirm the judgment, but modify defendant's sentence and remand to amend the abstract of judgment accordingly.

BACKGROUND

A. Factual Background

On December 14, 2008, Manette Wesley arrived home to find her front door open and her house in disarray.   Wesley found defendant standing in her bedroom, facing away from her, and wearing a hood over his head.   Wesley initially thought defendant was her son and she asked him what he was looking for.   Defendant eventually said that he was looking for money and turned to face Wesley.   Wesley realized defendant was not her son.   Unafraid, Wesley escorted defendant out of the house without incident.

At 11:30 p.m. on December 22, 2008, Wesley and her daughter, Candace Wesley, arrived home to find that the security door had been tampered with and would not open.²  Candace sat in the car while they waited for a friend to arrive to remove the lock so they could open the security door.   As Candice waited, she saw a man peer inside her car, but she did not believe the man saw her.   Candace then saw the man put what looked like a screwdriver on the fence.   The man eventually left the area.

Later that night Wesley and Candace heard someone shake the security door to their house.   Wesley looked out a window and saw defendant outside and recognized him as the man who had been in her house on December 14, 2008.   Wesley called 911 and reported the incident.   Sheriff's Department deputies responded to Wesley's home and found defendant walking out of Wesley's backyard.   The deputies took defendant into custody.   A deputy found a screwdriver in defendant's pocket.   Wesley and Candace identified defendant as the man they saw at their house that evening.

Defendant testified at trial.   Defendant denied being inside Wesley's house on December 14, 2008.   Defendant admitted that he was in Wesley's backyard on December 22, 2008, but testified he was there because he was hiding from gang members.   Defendant denied possessing the screwdriver that was found in his pants pocket.

B. Procedural Background

On January 23, 2009, defendant was charged with first degree burglary in violation of section 459 and attempted first degree burglary in violation of sections 664 and 459.   The information also alleged that defendant had served three prior prison terms within the meaning of section 667.5, subdivision (b).  Defendant, represented by the Office of the Public Defender, pleaded not guilty to the charges and denied the special allegation.

The matter was tried before a jury.   Defendant was convicted of attempted first degree burglary.   The jury could not reach a verdict on the charge of first degree burglary, and the trial court declared a mistrial as to that count.   The trial court also found true the prior prison term allegation.

The trial court denied probation and sentenced defendant to a total state prison term of five years.   The trial court ordered defendant to pay a $200 restitution fine, and imposed and stayed a parole revocation fine.   Defendant was credited with 325 days in custody consisting of 283 days actual custody credits and 42 days conduct credit.   The trial court limited the amount of conduct credit to 15 percent of defendant's custody credits pursuant to section 2933.1.

DISCUSSION

A. Self-representation

Defendant contends that his due process rights were violated because the trial court refused to hold a hearing under Wilson v. Superior Court (1978) 21 Cal.3d 816 to address restrictions placed on his pro. per. privileges by the Sheriff's Department in denying him access to the law library.   Because as a result he then had to give up his pro. per. status and utilized counsel, defendant argues he was effectively denied his Sixth Amendment right to self-representation under the United States Constitution.   We disagree.

1. Factual Background

On February 24, 2009, defendant requested self-representation and executed a Farretta ³ waiver of his right to counsel.   The trial court advised defendant of the dangers of self-representation, that defendant would be provided restricted access to the law library, and that the trial court could terminate defendant's right to self-representation if he engaged in disruptive behavior.   Defendant asked if by having pro. per. status he would have access to the law library because of where he is housed.⁴  The trial court responded that, “Well, that depends on the Sheriff's Department.   I don't know what your restrictions are in jail;  whether or not for security purposes you're being housed in a particular area, or particular section or module.”   The trial court granted defendant's request to represent himself.   The trial court advised defendant that he would be provided with a pen or pencil and pads of paper and authorized providing defendant with $40 pro. per. funds.   The deputy public defender confirmed that he provided defendant with redacted copies of all discovery in the case.

On March 12, 2009, defendant appeared on his own behalf at a pretrial hearing.   The trial court stated that it was in receipt of a facsimile from the Sheriff's Department questioning whether “defendant should be in the pro per module,” but the trial court stated that the facsimile “does not cause the court to question [defendant's] competency at this point.”   The facsimile was from the Sheriff's Department Twin Towers Correctional Facility attaching e-mails, including e-mails from personnel identified as Della Cruz, Andrea Solis, and Joseph Mirkovich.

The e-mail from Cruz was sent to various individuals, including Solis, advising that the trial court ordered that defendant is representing himself, and questioned whether defendant's pro. per. privileges, including having access to the law library for two hours per day, were “compatible with” his current housing and mental condition.   Cruz requested a response.   Solis responded to Cruz, stating in her e-mail that defendant was on her caseload, and that defendant was hostile and uncooperative, and verbally abused the staff.   Solis explained that she did not believe defendant belonged in mental health housing, and that defendant had “been sent to [housing in the general population section] on several occasions․  Rather than moving [defendant] back and forth from [housing in the general population section] to high observation housing, we have decided as a team to keep him in 162AC.   [Defendant is] requesting transfer to [county jail].   Unfortunately, due to his 8 security level, he can only be housed in tower II.”

In responding to Cruz's e-mail, Mirkovich stated that he had evaluated defendant, and that defendant had “acted out,” had “constant arguments with custody [staff],” and “can be manipulative with mental health staff.”   Mirkovich explained to defendant “the chance ․ of being housed in Pro Per housing.”   Defendant told Mirkovich that he “wanted to wait until March 12, 2009 [sic ] before he makes a decision to be Pro Per, and that he is comfortable being in 162 and not being a Pro Per.” Mirkovich stated that, “At this time, I recommend he continue to be housed in 162 A/B/C until he makes a more serious commitment to being Pro Per.” The facsimile from the Sheriff's Department does not state that defendant's pro. per. privileges were being restricted or, if so, what restrictions were being imposed.

During the March 12, 2009, pretrial hearing, defendant stated that since he had been granted pro. per. status, the Sheriff's Department had never allowed him access to the law library.   The trial court continued the trial date from April 6, 2009, to April 21, 2009.   The trial court also told defendant that he “can certainly bring a motion to the court;  then if necessary, I can conduct a hearing.”   Defendant inquired whether he can “have a Wilson hearing.”   The trial court stated that, “You can have a Wilson hearing eventually.   But you have enough time, you need to be able to convince the Sheriff's Department that you are cooperative, and that you will follow the rules, and that you need access to the pro per privileges.”   The trial court scheduled another pretrial hearing for April 2, 2009.   The trial court told defendant, “I think it's in your own best interests to have another pretrial.   That way, if you have any motions that you want to file and have them heard, we can do it before your trial date on the 21st.”

On April 2, 2009, defendant was present at the pretrial hearing.   The trial court continued the pretrial hearing to the following day because of its schedule.   Also on April 2, 2009, the Sheriff's Department issued an “Inmate Discipline Report – Narrative,” reporting that while waiting to go to court defendant attempted to hit a trustee with defendant's breakfast and yelled, “Gimme double ups asshole!”   The report did not state that defendant had been denied access to the law library.

On April 3, 2009, the trial court ordered that “[d]efendant is to serve the Sheriff's Department with a ‘Wilson' motion” and continued the matter to April 29, 2009, for a “Wilson hearing.”   The trial court also continued the trial date from April 21, 2009, to May 12, 2009.   On April 29, 2009, defendant could not appear in court because of a “[p]lumbing emergency,” and the trial court continued the matter to May 1, 2009.

On May 1, 2009, defendant appeared in court.   The trial court stated that it received a facsimile from the Sheriff's Department indicating that “as recently as April the 8th” defendant had expressed a desire to give up his pro. per. status.   Defendant stated that the facsimile was accurate.   The trial court asked defendant if he wanted the trial court to appoint a lawyer for him.   Defendant stated that he wanted an attorney because the Sheriff's Department would not allow him to go to the law library.   The trial court stated, “Well here's the bottom line.   With regards to what's commonly referred to as a Wilson hearing, I indicated to you that you needed to first address this with the Sheriff's Department.  [¶] And if you were unable to resolve it, that you would be entitled to a Wilson hearing before the court, that you would need to subpoena witnesses.  [¶] None of that occurred.”   The trial court reappointed a public defender to represent defendant stating, “In this matter, since you're asking for counsel, my inclination is to appoint a lawyer to represent you, and to have that lawyer appear for you this afternoon.  [¶] And if the lawyer needs additional time beyond the [trial] date of May 12th, and that's agreeable with you, my inclination is to grant a continuance for the lawyer to be able to get up to speed in order to prepare your case.”   Defendant stated, “I appreciate that.”

2. Analysis

The Sixth Amendment gives a defendant in a criminal case the right to represent himself or herself at trial.  (Farretta v. California, supra, 422 U.S. 806.)   Restrictions on pro. per. privileges in custody are not unusual.   (Wilson v. Superior Court, supra, 21 Cal.3d at pp. 824–826.)  “Restrictions of a defendant's pro. per. privileges [however] is ․ a matter of considerable importance to the exercise of his constitutional right of self-representation.”  (Id. at p. 823.)

When an inmate is afforded pro. per. privileges, “the nature of a defendant's interest in exercising those privileges is such that except in emergency situations, they may be restricted only after notice and hearing.   Restrictions that are an incidental result of disciplinary sanctions should therefore follow only after a disciplinary proceeding;  nonpunitive restrictions flowing from the sheriff's determination that institutional security requires segregation or other limitation on the movement of the defendant may be imposed only after a classification hearing to establish the existence of cause for the restriction.   Although a court order is affected by restriction of pro. per. privileges, we do not think that due process requires the disciplinary and classification hearings to be held in court so long as provision is made for court review of the matter and for the defendant to appear and be heard at the time of such court review on the sheriff's application for modification of the order granting pro. per. privileges.”  (Wilson v. Superior Court, supra, 21 Cal.3d at p. 822.)

Los Angeles County Superior Court Rules, rule 6.41, “govern[s] defendants acting in Pro Per in Los Angeles County criminal proceedings and delineate the privileges granted to those defendants acting in Pro Per in Los Angeles County.  [¶] These rules have the force and effect of procedural statutes and will be strictly followed.”  (Super.  Ct. L.A. County, Local Rules, rule 6.41, subd. (a)(1) and (2).)  Rule 6.41 provides for, among other things, a defendant's right to access the law library.⁵  (Id. at subd. (c)(1).)

Rule 6.41 provides that an inmate “may file a motion or writ with the court complaining of conditions of confinement or alleging violations of jail rules (including alleged violations of [rule 6.41] ).”  (Super.   Ct. L.A. County, Local Rules, rule 6.41, subd. (b)(3).)   Before an inmate may file a motion with the court, however, he or she “must first file a written complaint with the facility commander, unless it can be shown that substantial prejudice would result.   The facility commander shall investigate such inmate complaints and within ten (10) calendar days provide the inmate with a written response.  [¶] If the complaint is not resolved by the facility commander's written response and if the inmate chooses to file a motion or writ, the inmate must attach to any papers filed with the court a copy of the inmate's complaint and the response of the facility commander.   If an inmate claims that substantial prejudice would result from following the facility complaint procedure, the inmate shall submit a detailed statement setting forth the basis for the claim of substantial prejudice.  [¶] The court may calendar a hearing date;  direct that subpoenas be served upon necessary witnesses;  direct the inmate's complaint to the Commander in charge of the facility where the inmate is housed for further consideration;  or direct the Office of the County Counsel to file an answer.   The answer may include recommendations concerning possible resolutions.   If County Counsel files an answer, the Defendant shall have an opportunity to file a response.   After considering all documents, the court may issue orders without further hearing.”  (Id. at subd. (b)(3).)

When defendant complained to the trial court that the Sheriff's Department was denying him access to the law library, consistent with Los Angeles County Superior Court Rules, rule 6.41, the trial court advised defendant that defendant would have to file a motion to have a hearing on his complaints.   The trial court also advised defendant that before filing a motion with the court he should first attempt to resolve his concerns with the Sheriff's Department.   In addition, the trial court advised defendant that if his attempts to resolve his concerns with the Sheriff's Department failed, his motion had to be supported by evidence, and the motion had to be served the Sheriff's Department.   The trial court reserved a hearing date for defendant's prospective motion.   Defendant failed to file a motion under rule 6.41.   The trial court did not violate defendant's due process rights or deny his Sixth Amendment right to self-representation by requiring him to comply with Los Angeles County Superior Court Rules, rule 6.41.

Defendant argues that, “It is illogical and unreasonable to require and inmate who is complaining that he has no access to the law library to file a formal motion, the drafting of which requires access to the law library.”   Defendant's complaint concerned the denial of certain pro. per. privileges.   Defendant did not need to access a law library to bring such a factual complaint before the trial court.   He could have written out the petition with the facts of his alleged deprivation of library access.   This he did not do.

Defendant's due process rights were not violated and he was not denied his Sixth Amendment right to self-representation.   We affirm defendant's conviction.

B. Presentence Conduct Credit

Defendant contends that the trial court erred in calculating his presentence conduct credit.   The trial court applied the 15 percent limitation in section 2933.1 in calculating defendant's presentence conduct credit.   Defendant contends this was improper because his attempted first degree burglary conviction is not subject to the 15 percent limitation in section 2933.1, as that offense is not listed as a violent felony in section 667.5, subdivision (c).  Defendant requests that we modify the judgment to reflect the proper credits and direct the trial court to amend the abstract of judgment accordingly.   Respondent agrees.

Section 2933.1, subdivision (a) states that, “Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.”   Section 667.5, subdivision (c) does not list attempted first degree burglary as a violent felony.   Accordingly, the trial court erred in applying a 15 percent limitation to defendant's custody credits pursuant to section 2933.1.

Section 4019 ⁶ governs the calculation of defendant's presentence custody credits.  “Under Penal Code section 4019, a defendant receives two days of conduct credit for each four-day block of time served.  ‘The proper method of calculating presentence custody credits is to divide by four the number of actual presentence days in custody, discounting any remainder.   That whole-number quotient is then multiplied by two to arrive at the number of good/work credits.   Those credits are then added to the number of actual presentence days spent in custody, to arrive at the total number of presentence custody credits.  [Citations.]’  [Citation.]”  (People v. Kimbell (2008) 168 Cal.App.4th 904, 908–909.)   Having spent 283 days in custody, defendant is entitled to 140 additional days of conduct credit.   Defendant, therefore, is entitled to a total of 423 days of presentence credit.   The judgment is so modified, and the matter is remanded for the trial court to amend the abstract of judgment consistent with this opinion.

DISPOSITION

Defendant's judgment is modified to provide that he is entitled to a total of 423 days of presentence credit consisting of 283 days of actual custody credit and 140 days of conduct credit.   The matter is remanded for the trial court to amend the abstract of judgment accordingly and to strike the section 2933.1 designation in the abstract of judgment.   In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

We concur:

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise stated..  FN1. All statutory references are to the Penal Code unless otherwise stated.

FN2. Because Manette Wesley and Candace Wesley share the same surname, Candace Wesley is referred by her first name..  FN2. Because Manette Wesley and Candace Wesley share the same surname, Candace Wesley is referred by her first name.

FN3. Farretta v. California (1975) 422 U.S. 806..  FN3. Farretta v. California (1975) 422 U.S. 806.

FN4. Defendant asked, “I would like to know, like as far as—where I'm at, where I'm housed at in County jail, like we don't come out of our cells for like nothing.   So I would like to know if—me having this status, would I have access to the law library.”.  FN4. Defendant asked, “I would like to know, like as far as—where I'm at, where I'm housed at in County jail, like we don't come out of our cells for like nothing.   So I would like to know if—me having this status, would I have access to the law library.”

FN5. Los Angeles County Superior Court Rules, rule 6.41, subdivision (c)(1) provides in part that, “The Sheriff shall provide and maintain a law library for use by inmates granted Pro Per status.   All Pro Per inmates shall be entitled to a maximum of two (2) hours per day of law library access.   The law library shall operate seven days per week.  [¶]․  The Sheriff may designate the time and place of an inmate's law library access, and may assign inmates into groups based upon safety, security, and efficient use of available facilities.  [¶]․  All inmates exercising Pro Per privileges have an affirmative duty to exercise the privileges in such a manner as not to infringe upon the exercise of Pro Per privileges by other inmates.”.  FN5. Los Angeles County Superior Court Rules, rule 6.41, subdivision (c)(1) provides in part that, “The Sheriff shall provide and maintain a law library for use by inmates granted Pro Per status.   All Pro Per inmates shall be entitled to a maximum of two (2) hours per day of law library access.   The law library shall operate seven days per week.  [¶]․  The Sheriff may designate the time and place of an inmate's law library access, and may assign inmates into groups based upon safety, security, and efficient use of available facilities.  [¶]․  All inmates exercising Pro Per privileges have an affirmative duty to exercise the privileges in such a manner as not to infringe upon the exercise of Pro Per privileges by other inmates.”

FN6. Penal Code section 4019 in effect at the time of defendant's sentencing on September 30, 2009, stated in pertinent part, “(a) The provisions of this section apply ․ [¶] ․ [¶] (4)[w]hen a prisoner is confined in a county jail ․ following arrest and prior to the imposition of sentence for a felony conviction. [¶] (b) [F]or each six-day period in which a prisoner is confined in or committed to a [county jail], one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned ․ [¶] (c) For each six-day period in which a prisoner is confined in or committed to a [county jail], one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established ․ [¶] ․ (e) No deduction may be made under this section unless the person is committed for a period of six days or longer. [¶] (f) 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.”.  FN6. Penal Code section 4019 in effect at the time of defendant's sentencing on September 30, 2009, stated in pertinent part, “(a) The provisions of this section apply ․ [¶] ․ [¶] (4)[w]hen a prisoner is confined in a county jail ․ following arrest and prior to the imposition of sentence for a felony conviction. [¶] (b) [F]or each six-day period in which a prisoner is confined in or committed to a [county jail], one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned ․ [¶] (c) For each six-day period in which a prisoner is confined in or committed to a [county jail], one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established ․ [¶] ․ (e) No deduction may be made under this section unless the person is committed for a period of six days or longer. [¶] (f) 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.”

ARMSTRONG, Acting P. J. KRIEGLER, J.