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People v. Licea5/30/2002
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Hugo Cesar Licea appeals from the judgment entered upon his conviction by jury of petty theft with a finding by the trial court that he had suffered two prior qualifying convictions (Pen. Code, § 666), with further findings that he had sustained a prior serious felony conviction within the meaning of the three strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and three prior felony convictions for which he served separate prison terms (§ 667.5, subd. (b)). The trial court struck the prison term allegations and sentenced him to six years in prison.
Appellant contends that (1) the trial court erred in denying his motion for self-representation; (2) the trial court erred in refusing to call a new jury panel and in admonishing the jury; (3) the trial court improperly penalized him for exercising his right to trial; (4) the trial court abused its discretion in selecting the upper term; (5) the trial court abused its discretion in denying his motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497; (6) he was denied his constitutional rights to due process and jury trial when the trial court, rather than the jury, determined identity and the serious nature of the prior conviction with respect to the prior conviction allegations; and (7) the trial court violated his constitutional rights by instructing the jury in accordance with CALJIC No. 17.41.1. We affirm.
FACTS
The evidence established that on October 8, 2000, a loss prevention officer at a Boyle Heights market saw appellant place four jars of coffee inside his waistband and leave the store without paying for them. The jars of coffee cost $3.95 each. Appellant was confronted outside the store. Although he denied having taken anything, he ultimately handed over two jars and was found in possession of the other two jars when searched by police.
DISCUSSION
I. The trial court was not required to call a new jury panel.
After appellant expressed dissatisfaction with his appointed trial counsel, a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118) was conducted and his request for substitute counsel was denied. Later, in the presence of the jury panel at the beginning of jury selection, appellant repeatedly complained about his counsel's representation. The trial court informed appellant, "We'll be dealing with that during recess," and admonished the jury, "Ladies and gentlemen, if at any time Mr. Licea and I should have any conversations, I don't want you in any way, shape, or form to hold it against the defendant --" Appellant interrupted, "Yes, hold it against me --" The court continued, "-- Or be prejudiced against him --" Appellant interjected, "I don't give a fuck and fuck you, too, huh?" The court stated, "Let's just hold on for --" Appellant interrupted, "Fuck the system. You're fucking full of shit. Why don't you say the fucking truth?" The trial court called a recess and asked the jury panel to step outside. Appellant stated, "Fucking judge is full of shit."
Outside the presence of the prospective jurors, the trial court admonished appellant that if he continued to engage in disruptive, obscene, disorderly and disrespectful behavior, he would not be permitted to remain in the courtroom. Appellant retorted that he wanted the court to try the case without his presence and indicate
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