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Name: People v. Percelle
Case #: H026115
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 01/31/2005
Subsequent History: Revw. den. 4/27/05

Where a defendant moved mid-trial to represent himself because he was unhappy with counsel’s performance, the court did not err in requiring the defendant to make a Marsden showing even though defendant made an unequivocal Faretta request. An untimely motion for self-representation is subject to the trial court’s discretion, and although the court improperly structured the inquiry as a Marsden proceeding, the procedure resulted in an adequate record on which the appellate court could determine that there was no abuse of discretion. Second, where the prosecution improperly alleged as a prior prison term a count that had been stayed, rather than the count from the same proceeding on which the defendant had actually served a prison sentence, the appellate court was required to strike the prior prison term enhancement. Third, a defendant sentenced to prison cannot be ordered to pay victim restitution in connection with a count on which he has been acquitted. Fourth, the court’s failure to give a unanimity instruction is not error when the acts alleged are so closely connected as to form part of one continuing transaction or course of criminal conduct. Here the defendant had entered the same store twice in about an hour to attempt to use the same counterfeit access card to make a purchase, and the court concluded that this constituted one course of conduct. Finally, any error in admitting documents under the business records exception was harmless given the extremely strong evidence presented at trial.