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Name: People v. Scott
Case #: B112469
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 08/28/2001
Subsequent History: Rev. denied 11/28/01
Summary

Four days before his trial for assault was to begin, appellant made a Marsden motion for substitution of appointed counsel. Following the denial of his motion, he requested that he be allowed to represent himself, and asked the court for a continuance. The court denied both the motions. On appeal, appellant argued that the court erred when it denied his Faretta motion. The appellate court here affirmed. Motions made just prior to the start of trial are not timely. Further, the motion was not unequivocal: appellant alternately argued that he wanted to represent himself, and that he wanted representation by a different lawyer. He claimed the court was “coercing” him into representing himself by refusing to replace his lawyer. Since the Faretta motion was made out of frustration at having the Marsden motion denied, rather than a genuine desire for self-representation, it was properly denied. The trial court erred when it allowed the jury to make a finding on the firearm use enhancement without defining the elements of the enhancement. However, Apprendi v. New Jersey (2000) 530 U.S. 466, does not mandate that such an error is reversible per se. The trial court’s failure to instruct properly in this case was harmless error because the facts supporting appellant’s conviction for assault with a firearm necessarily included a finding of firearm use. The imposition of a ten year firearm use enhancement under Penal Code section 12022.5, subdivision (a)(1) was not improper because the court reconvened the jury after they announced their verdicts on the substantive offense. The verdict was not “complete” within the meaning of Penal Code section 1164 because the jury had not been discharged, but merely sent back into the jury room after it was discovered that they had neglected to make a determination on the enhancement. Since the error could be corrected before the trial court lost control of the jurors, the jury was properly reconvened and the enhancement was therefore properly imposed. It was not a double jeopardy violation to impose the enhancement for firearm use in addition to the sentence for assault with a firearm. It is clear that the Legislature intended to impose additional punishment for firearm use even where the use is an element of the underlying offense.