P. v. Greenwood

Filed 11/22/06 P. v. Greenwood CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
LEROY J. GREENWOOD,
Defendant and Appellant.
B182924
(Los Angeles County
Super. Ct. No. YA056661)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Mark S. Arnold, Judge. Affirmed in part; reversed in part and remanded.
Law Offices of John F. Schuck and John F. Schuck, under appointment by the
Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and
David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
______________________________________________

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Defendant and appellant Leroy Greenwood was charged with crimes arising out
of three armed robberies and one attempted armed robbery. He was ultimately found
guilty of three counts of robbery (Pen. Code, § 211), one count of attempted robbery
(Pen. Code, §§ 664, 211), three counts of kidnapping for robbery (Pen. Code, § 209,
subd. (b)(1)), and eleven counts of assault with a firearm (Pen. Code, § 245,
subd. (a)(2)). A firearm enhancement was found to be true with respect to each count
(Pen. Code, §§ 12022.5, 12022.53, subd. (b)). Additionally, defendant was found to
have suffered six prior serious felony convictions, within the meaning of Penal Code
section 667, subdivision (a)(1) and the Three Strikes law (Pen. Code, § 667,
subds. (b)-(i)). Defendant was sentenced to a lengthy term of imprisonment. On
appeal, defendant contends: (1) the photographic displays from which the witnesses
identified him were unduly suggestive; (2) the trial court erred in denying his motion for
self-representation made during voir dire; (3) the evidence is insufficient to support the
assault with a firearm convictions and firearm enhancements as there is insufficient
evidence he used a real, loaded gun; (4) his right to due process was violated when the
jury found true two sentence enhancements that were not charged in the information;
and (5) his sentence is unconstitutional under Blakely v. Washington (2004) 542 U.S.
296. We reverse the convictions arising from a single suggestive photographic display
and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The charges against defendant arose out of four separate incidents: a robbery at a
Hometown Buffet in Hawthorne; a robbery at an El Torito Grill in Torrance; a robbery

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at a Hometown Buffet in Westchester; and an attempted robbery at a Houston’s in
Manhattan Beach.
1. The Hawthorne Hometown Buffet Robbery
On May 27, 2003, at approximately 7:45 a.m., some employees were at the
restaurant to prepare for opening. Employee Ana Maria Garrido arrived at work and
knocked on the restaurant’s window to be let in. She was approached on the sidewalk
by defendant, who wore a chef’s coat, a dark baseball cap, and dark sunglasses.
Defendant asked to speak to the manager to get a job application. Garrido told him to
come back later. Another employee opened the door for her, so she entered the
restaurant. As she tried to close the door behind her, defendant put his hand in the door,
preventing her from doing so. Defendant then pulled a gun from his waistband and
pointed it through the partially open door. Garrido saw only the gun’s black barrel.
Defendant told her, “Be quiet and I don’t do nothing to you.” He ordered Garrido and
the other employee to turn around and not look at him. He placed the gun to Garrido’s
back.
Defendant told the other employee to call for the manager; he did so. There were
seven employees in the restaurant at this time. Defendant ordered them all to lie on the
floor and not move. One employee, Idovac Decoline, thought it was a joke, and did not
drop. Defendant stated, “I said get down.” Decoline still remained standing.
Defendant said, “You don’t hear me?” and pointed his gun at Decoline. Decoline
complied, as did the others. Defendant then told them to stand up. He walked all of the
employees, at gunpoint, over to a storage room. He checked them all for cellular

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telephones. Then he told them to walk to the office, stating, “Whoever runs, I’m gonna
shoot your head.” The employees did as they were told. Upon reaching the office,
defendant again directed them to lie on the floor. Defendant then ordered manager
Victor Arizmendi to open the safe at gunpoint, and put the money therein in a trash bag.
Arizmendi did so, and gave defendant the money. The amount was less than $1000.
Thereafter, defendant ordered all of the employees into the walk-in refrigerator.
Once they were inside the refrigerator, the doorbell rang on the back door, signifying
the arrival of the cleaning crew. The Hometown Buffet was cleaned by a group of
adults with developmental disabilities, who were supervised by a job coach, Jimme Lee
Tyler, and his assistant, Tamika Brown. When nobody responded to their doorbell, they
went around to the front of the restaurant. Defendant opened the front door for them.
The group entered the restaurant and began working. Tyler brought up the rear, and
defendant came up behind him, pointing a dark revolver at him. Defendant started
screaming at Brown and the others to stop working and follow his instructions. Eddie
McKnight, the lowest-functioning member of the crew, had sat down on a bench,
unaware of what was happening. Defendant shouted an obscenity at him and struck him
on the head with the butt of his gun, causing bleeding. Tyler immediately ran over to
McKnight and tried to explain to defendant that McKnight had a developmental
handicap. He helped McKnight up and attempted to comply with defendant’s demands.
Defendant put the gun to the back of one of the other members of the cleaning crew,
Vinicio Lopez, and led the group to the walk-in refrigerator. Lopez described the gun
as a .38 caliber handgun. Brown testified that it was a black revolver.

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Once the cleaning crew had joined the employees in the cooler, defendant asked
them if any of the new arrivals had cellular phones; none did. Then he told them to
count to 120, closed the refrigerator door, and left. The group eventually escaped via an
opening used to pass food out of the refrigerator.
In November 2003, after police identified defendant as a possible suspect in this
robbery, they prepared a “six-pack” photographic display to show the victims. In each
such photographic display used in this case, an identification number was printed on the
bottom center of the six-pack, directly beneath photo number five. Defendant contends
on appeal that the use of a photographic display with an identification number is unduly
suggestive, in that it makes photo number five stand out from the other photographs in
the display. In the display used with respect to this robbery, defendant’s picture was in
position five. Garrido, Decoline, Tyler and Brown identified defendant from the
photographic display and at trial.1
Lopez identified defendant from the photographic
display, but stated defendant was not the robber at trial.
With respect to this robbery, defendant was charged with, and convicted of:
robbery of Arizmendi with a Penal Code section 12022.53 enhancement found to be
true (count fourteen); and assaults with a firearm of Garrido, Decoline, Brown, Lopez,
1
Garrido was unsure of her in-court identification of defendant.

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Tyler and McKnight with Penal Code section 12022.5 firearm enhancements found to
be true (counts fifteen through twenty2
).
2. The El Torito Grill Robbery
On August 4, 2003, at 7:30 a.m., manager Ray Rojas and his chef were at the
El Torito Grill, prior to opening. Defendant rang the doorbell at the back door. Rojas
asked who was there. Defendant said, “Delivery.” Rojas opened the door. Defendant
was wearing a chef’s coat, a hat, and shaded glasses. Defendant was carrying a
briefcase in front of him. He pulled a gun out of the briefcase, stating, “This is a
robbery,” and pointed the gun at Rojas. Rojas testified the gun was a “grayish”
medium-sized revolver, a .38 caliber or .357. Rojas is familiar with weapons and can
identify one. He testified the gun looked real.
Defendant asked if anyone else was in the restaurant. Rojas responded that the
chef was in the walk-in cooler, conducting inventory. Defendant stated, “If you don’t
want me to hurt you, do as I say.” At gunpoint, defendant directed Rojas to take him to
the office, where he then directed Rojas to open the safe. At defendant’s command,
Rojas took money out of the safe and placed it in defendant’s briefcase. There was
nearly $9000. Defendant then ordered Rojas into the walk-in cooler. He ordered Rojas
to turn around, and then ran out the back door.
2
With respect to count twenty, the assault with a firearm of McKnight, a great
bodily injury enhancement had been alleged (Pen. Code, § 12022.7). Although
evidence of great bodily injury was presented to the jury, the question of the truth of the
enhancement was not submitted to them, apparently by oversight.

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When defendant was subsequently identified by police as a suspect in this
robbery, police compiled a photographic display which included defendant’s
photograph. In the photographic display showed to Rojas, defendant’s photograph was
in position four, not position five, under which the identification number appeared.
Rojas positively identified defendant from the photographic display and at trial.
With respect to this robbery, defendant was charged with, and convicted of:
kidnapping for robbery of Rojas, with a Penal Code section 12022.53 enhancement
found to be true (count one); robbery of Rojas, with a Penal Code section 12022.53
enhancement found to be true (count two); and assault with a firearm of Rojas, with a
Penal Code section 12022.5 firearm enhancement found to be true (count three).
3. The Westchester Hometown Buffet Robbery
On September 29, 2003, in the morning before the restaurant opened for
business, several employees were preparing the restaurant for opening. Defendant
approached the front door and waved to the employees inside, seeking entry. The
outside door enters onto a small foyer, where one must enter a second, inner set of doors
in order to enter the restaurant itself. Employee Emille Delrey went through the inner
set of doors, stood in the foyer, and opened the outer door slightly to speak to defendant.
Employee Rhyon Taylor joined Delrey. Defendant wore a dark baseball cap and
sunglasses. He carried a briefcase. He claimed to be looking for work; Taylor told him
to return during business hours. Taylor turned to leave. Defendant said, “Hold on, man.
Check it out.” He pulled a gun out of his briefcase and told Delrey to open the door all

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the way. Taylor turned to see the gun; it was black, and may have been a revolver,
perhaps .38 caliber. Delrey opened the door.
Defendant had Delrey and Taylor walk into the restaurant. He walked behind
them, placing the gun against Taylor’s back. He warned, “I don’t want to hurt nobody,
especially not no black man.” He demanded to be taken to the manager. Delrey
pleaded not to be killed. Defendant told Delrey to stop looking at him. He stated, “I’m
not going to hurt anybody. I’m not going to kill nobody. I just want you all to take me
to the manager.” Taylor and Delrey brought defendant to the manager’s office, but
there was no response to their knock on the door. Defendant told them to stop “playing
with” him. Taylor and Delrey continued walking through the restaurant, at gunpoint, in
search of a manager. Eventually, they spotted Ramiro Pedroza, their manager.
Defendant put his gun to Pedroza’s head and ordered Pedroza to take him to the
office. Pedroza complied; Delrey and Taylor went as well. Defendant ordered Delrey
and Taylor to face the wall and directed Pedroza to take the money out of the safe and
put it in his briefcase. Pedroza complied, giving defendant $900. After receiving the
money, defendant told the three men not to leave until they had counted to a particular
number, and then left.
When defendant was identified as a suspect in this robbery, police compiled a
photographic display. Defendant’s photograph was placed in position three, a position
that did not have the identification number under it. Taylor and Pedroza identified
defendant from the photographic display and at trial. Additionally, an employee at a

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nearby store who had seen defendant that morning identified defendant’s photograph as
one of two in the six-pack that looked “extremely similar” to the man she had seen.
With respect to this robbery, defendant was charged with, and convicted of:
kidnapping for robbery of Delrey and Taylor, with Penal Code section 12022.53
enhancements found to be true (counts four and seven);3
robbery of Pedroza, with a
Penal Code section 12022.53 enhancement found to be true (count nine); and assaults
with a firearm of Pedroza, Delrey, and Taylor (counts six, eight, and ten). A Penal
Code section 12022.5 firearm enhancement was charged only with respect to the assault
with a firearm of Pedroza, yet was submitted to the jury, and found to be true, with
respect to all three assaults with a firearm.
4. The Houston’s Attempted Robbery
On October 31, 2003, at 6:30 a.m., before the restaurant opened for business,
employees were preparing the restaurant. Defendant knocked on the side door, which
was for deliveries. Employee Armando Moreno told him to go around to the main door,
which was open. Defendant entered the restaurant. He wore a chef’s coat, a dark
baseball cap, and dark sunglasses. He also wore denim pants with a distinctive logo on
them. He carried a briefcase. Defendant asked to see the manager. Moreno escorted
defendant to the walk-in cooler, where the assistant kitchen manager, Phillip Mitchell
Hughes, was working. Defendant pulled a black .38 caliber revolver from his briefcase
3
Defendant was also charged with the kidnapping for robbery of Pedroza (count
five); the jury found him not guilty.

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and pointed it at Hughes. Hughes ran inside the cooler, and exited through the back.
Defendant followed. Moreno left through the front of the restaurant to get help.
Moreno and Hughes ended up at neighboring businesses and both asked the people
there to call 911.
Defendant returned to the parking lot, entered a black Corvette with no license
plates, and drove off. Police officers had been in the area, and gave chase. Defendant
led police on a high-speed chase, during which he ran red lights, wove in and out of
traffic, and drove the wrong way on a one-way street. A video camera in the police car
recorded the chase. Defendant would eventually contend that the recorded chase was
staged. Defendant believed that the police faked a chase after defendant was arrested,
with an officer driving defendant’s Corvette.
During the chase, defendant threw a chef’s jacket and a baseball cap from the
car. Ultimately, defendant stopped his car, exited, and continued on foot. A briefcase
was found on the seat of the Corvette, and sunglasses were found on the floorboard.
The car was registered to defendant. Police set up a containment perimeter and
searched for defendant. Several hours later, he was found hiding under a pile of debris.
A field show-up was conducted. Hughes identified defendant, who was wearing
the same distinctive pants he wore during the attempted robbery. Both Hughes and
Moreno identified defendant at trial.4
4
When defendant had abandoned the Corvette, police found that it was registered
to defendant. Police immediately compiled a six-pack containing defendant’s DMV

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With respect to this incident, defendant was charged with, and convicted of:
attempted robbery of Hughes with a Penal Code section 12022.53 enhancement found
to be true (count eleven); and assault with a firearm of Hughes with a Penal Code
section 12022.5 firearm enhancement found to be true (count twelve).5
5. Defendant’s Admission and Other Evidence
Once in police custody, defendant was hospitalized where he was treated for a
heart condition. Manhattan Beach Police Department Officer Steve Kitsios was
guarding him. After a few hours, Officer Kitsios saw defendant’s heart monitor racing,
and tried to calm him, telling him to relax. Defendant responded, “I’m not worried
about this case. All I need me is one little, black old lady on the jury and I’m going to
win this trial.”
Defendant had previously lived with his brother. Defendant’s brother had been a
cook, and still possessed several chef’s jackets. No weapon was ever recovered.
6. The Defense
Although defendant was represented by counsel at trial, he exercised his right to
represent himself for much of the pretrial proceedings. Before trial, when defendant
was representing himself, defendant argued the photographic displays should be
excluded as unduly suggestive. Relying on the six-pack used in the Hawthorne
registration photograph. Neither Hughes nor Moreno was able to make any
identification from that display.
5
There was no count thirteen in the operative information.

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Hometown Buffet identifications as representative, defendant argued the displays were
suggestive both because he was the only clean-shaven individual in the pictures and
because the identification number appeared beneath his photograph. The court
determined that several individuals shown in the Hawthorne Hometown Buffet
six-pack, including defendant, appeared to have a small amount of facial hair, and
concluded the display was not unduly suggestive for that reason. The court also
concluded the identification number was not unduly suggestive, and indicated that both
of these issues would be potential areas for cross-examination.
At trial, defendant’s defense consisted in large part of the testimony of Professor
Edward Geiselman, an expert in eyewitness psychology, who testified that the
photographic displays used in this case were suggestive. However, he did not suggest
that the presence of the identification number underneath defendant’s photograph in the
Hawthorne Hometown Buffet display was suggestive. Indeed, although prosecution
witnesses were cross-examined on their identifications from the six-packs, they were
never cross-examined on whether the presence of the identification number had
influenced them.6
6
There appears to be a solid strategic reason for this. If counsel had made the
argument that the presence of the identification number beneath photograph number
five suggested that the witness should select number five, it would have made the
identifications in the El Torito Grill robbery and the Westminster Hometown Buffet
robbery more persuasive, as defendant’s photograph had been identified in those
instances when his photograph was not in position five.

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Defendant also introduced evidence that fingerprints had been taken from the
crime scenes, but none of the fingerprints matched him. Defendant also introduced
evidence that, when he was arrested, he had a small quantity of drugs in his possession,
suggesting that this was the reason he fled police and made the incriminating statement.
7. Sentencing
The jury found true the allegations of six prior serious felony convictions.
Defendant’s motion to dismiss strike priors was denied. Defendant was sentenced as
follows: The three kidnapping for robbery convictions were dismissed. For each of the
four robbery (and attempted robbery) counts, defendant was sentenced to a consecutive
term of 25 years to life (pursuant to the Three Strikes law) plus 10 years for the firearm
enhancement (Pen. Code, § 12022.53, subd. (b)), plus 5 years for the prior serious
felony conviction enhancement (Pen. Code, § 667, subd. (a)(1)), for a total term of
100 years to life consecutive to 60 years. Defendant had also been convicted of assault
with a firearm on three of the robbery (or attempted robbery) victims (Rojas (El Torito
Grill); Pedroza (Westminster Hometown Buffet) and Hughes (Houston’s)); sentence on
these counts was stayed pursuant to Penal Code section 654. For each of the remaining
eight counts of assault with a firearm, defendant was sentenced to a consecutive term of
25 years to life (pursuant to the Three Strikes law) plus the middle term of 4 years for
the firearm enhancement (Pen. Code, § 12022.5), plus 5 years for the prior serious
felony conviction enhancement (Pen. Code, § 667, subd. (a)(1)) for a total term of
200 years to life consecutive to 72 years. In total, defendant was sentenced to 300 years

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to life in prison, consecutive to a determinate term of 132 years. Defendant filed a
timely notice of appeal.
ISSUES ON APPEAL
Defendant contends the photographic displays from which he was identified were
unduly suggestive. We agree that the Hawthorne Hometown Buffet photographic
display was unduly suggestive and therefore reverse the convictions arising from that
incident. Defendant contends the trial court erred in denying his motion for
self-representation made during voir dire; we conclude the motion was untimely and
that the trial court was within its discretion to deny the motion, given defendant’s
proclivity to assert and waive his right to self-representation. Defendant contends the
evidence is insufficient to support the assault with a firearm convictions and firearm
enhancements as there is insufficient evidence that he used a real, loaded gun; we
conclude the evidence is sufficient, based on the observances of the witnesses and
defendant’s own statements. Defendant contends he should not have been sentenced on
two sentence enhancements that were not charged in the information; we conclude the
information put him on sufficient notice. Finally, defendant contends his sentence is
unconstitutional under Blakely v. Washington (2004) 542 U.S. 296; we disagree.
DISCUSSION
1. Unduly Suggestive Photographic Display
Defendant contends the Hawthorne Hometown Buffet photographic display was
unduly suggestive because his photograph was placed in position five, directly above

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the identification number. He argues the remaining photographic displays were unduly
suggestive because he was the only individual in the displays to appear clean shaven.
“In order to determine whether the admission of identification evidence violates
a defendant’s right to due process of law, we consider (1) whether the identification
procedure was unduly suggestive and unnecessary, and, if so, (2) whether the
identification itself was nevertheless reliable under the totality of the circumstances,
taking into account such factors as the opportunity of the witness to view the suspect at
the time of the offense, the witness’s degree of attention at the time of the offense, the
accuracy of his or her prior description of the suspect, the level of certainty
demonstrated at the time of the identification, and the lapse of time between the offense
and the identification.” (People v. Cunningham (2001) 25 Cal.4th 926, 989.) In
determining whether the identification procedure was unduly suggestive, “ ‘[t]he
question is whether anything caused defendant to “stand out” from the others in a way
that would suggest the witness should select him.’ [Citation.]” (Id. at p. 990.) Once it is
determined that a pretrial identification procedure was impermissibly suggestive, the
prosecution has the burden of establishing, by clear and convincing evidence, that a
subsequent in-court identification is not thereby tainted. (People v. Citrino (1970)
11 Cal.App.3d 778, 783.) If an error has been established, we must determine whether,
beyond a reasonable doubt, a jury presented solely with the remaining, untainted
evidence would have convicted the defendant. (People v. Carlos (2006)
138 Cal.App.4th 907, 912.) We review the issue de novo. (Ibid.)

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In People v. Carlos, supra, 138 Cal.App.4th 907, Division One of the Second
Appellate District considered whether a photographic display with an identification
number directly beneath the defendant’s photograph (in position five) was unduly
suggestive.7
The court concluded that it was. “The problem with the six-pack is
obvious – it is not just that [defendant]’s name and an identification number are printed
on the front of the form, it is that they are printed directly below his picture. The
prosecutor’s representation that all six-packs are similarly labeled may be correct, but
whether by chance or design the problem here is that the suspect’s photograph is
directly above the name and number. Although the name placement is not quite an
arrow pointing to [defendant], it is plainly suggestive.” (Id. at p. 912.)
We first consider the photographic display used in connection with the
Hawthorne Hometown Buffet robbery. Here, an identification number, and a second
number indicating defendant’s name,8
appear on the photographic display directly
beneath photograph five, defendant’s picture. As in People v. Carlos, the presence of
the numbers beneath defendant’s photograph is plainly suggestive. We therefore
consider whether the identifications were nevertheless reliable under the totality of the
circumstances. The Hawthorne Hometown Buffet robbery took place on May 27, 2003.
The suggestive photographic display was not shown to the witnesses until over five
7
The opinion in People v. Carlos was first raised by defendant in his reply brief.
We invited additional letter briefs on the impact of the decision.
8
The notation reads: “ID:70552 Name:03-8105#3”

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months later. The witnesses – particularly the cleaning crew witnesses who arrived
during the robbery – did not have a lengthy opportunity to observe the robber. The
witnesses’ descriptions of the robber were not so detailed as to give rise to an inference
that they would have selected defendant’s photograph regardless of the suggestiveness
of the display. While it is true that the witnesses were admonished not to consider any
markings or writings that may have appeared on the photographs, one witness,
Decoline, clearly ignored the admonition – putting circles around both defendant’s
photograph and the number that appeared beneath it. We therefore conclude that, with
respect to the pretrial identifications made from the photographic display, there was a
substantial likelihood of irreparable misidentification.
Next, we consider whether the in-court identifications of Garrido, Decoline,
Tyler and Brown were tainted by the improper pretrial identifications. Each of these
four witnesses made an in-court identification of defendant only after being reshown the
suggestive photographic display and being reminded of their selection of defendant’s
photograph. Moreover, although Garrido identified defendant at trial, she was uncertain
of the identification. On these facts, we cannot conclude that the in-court identifications
of defendant were nevertheless reliable, despite the unduly suggestive six-pack.
As such, we are not convinced that the error was harmless beyond a reasonable
doubt. In the absence of the improper photographic identifications, and the in-court
identifications they likely tainted, the evidence linking defendant to the Hawthorne
Hometown Buffet robbery is, while sufficient to support a conviction, not so
overwhelming that we can conclude the jury would have reached the same result. We

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note that one witness, Lopez, testified at trial that defendant was not the robber.9
There
was no physical evidence linking defendant to the robbery. While a jury might
conclude that the similarity between the four different events proves that the same man
committed all of them (for example, the perpetrator of the Hawthorne Hometown Buffet
robbery wore a chef’s coat, as did the perpetrator of the El Torito Grill robbery and the
Houston’s attempted robbery), the jury might also conclude that differences between the
events raise a reasonable doubt (for example, the Hawthorne Hometown Buffet robbery
was the only one in which the perpetrator did not carry a briefcase). The convictions
arising out of the Hawthorne Hometown Buffet robbery cannot stand.10
Defendant next argues that the photographic displays used with respect to the
other crimes were also unduly suggestive, in that he was the only clean-shaven
individual appearing in the displays. We disagree. We have reviewed each of the
photographic displays, and do not find the differences in facial hair to be unduly
suggestive. With respect to the El Torito Grill robbery, Rojas identified defendant’s
photograph from Exhibit 3. In that display, defendant appears to have the small hint of
a mustache, as do three other individuals in that display (those in positions two, three
9
Although Lopez was developmentally disabled, there was no evidence
introduced as to whether his disability might affect his ability to make an identification.
10
As the court noted in People v. Carlos, supra, 138 Cal.App.4th at p. 912. “This
problem can be avoided in the future by labeling the six-packs on the back or, if they
must be labeled on the front, by placing the name and identification number so they do
not highlight any of the photographs.” Alternatively, the six-pack can be placed in a
windowed folder which hides from view everything except the six images.

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and five; defendant’s photograph is in position four). With respect to the Westchester
Hometown Buffet robbery, the witnesses identified defendant’s photograph from
Exhibit 7. Each individual represented in the array appears to have a slightly different
quantity of facial hair. Defendant, in position three, appears to have more of a mustache
than the individual in position four, but less than the individual in position one. While
no other individual pictured has precisely the same amount of facial hair as defendant, it
is clear that defendant’s image does not in any way stand out from the others due to the
amount of facial hair present. We therefore conclude the photographic displays were
not unduly suggestive.11
2. Request for Self-Representation
Defendant contends the trial court erred in denying his motion for self-
representation, made after jury selection had commenced. A defendant has a
constitutional, unconditional right to represent himself or herself if a timely unequivocal
request for self-representation is made. (Faretta v. California (1975) 422 U.S. 806,
834-836; People v. Webster (1991) 54 Cal.3d 411, 436 [no unequivocal request]; People
v. Wright (1990) 52 Cal.3d 367, 409 [same].) A timely request is one made a
reasonable time prior to the commencement of trial. (People v. Windham (1977)
19 Cal.3d 121, 124, 127-128.) When a defendant makes an untimely request for
self-representation, the trial court has discretion to decide whether or not to grant the
11
We also note that the admonition given to witnesses before viewing the
photographic displays includes the warning, “Keep in mind that hair styles, beards, and
mustaches may be easily changed.”

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request. (People v. Cummings (1993) 4 Cal.4th 1233, 1320-1321.) The fact that a
defendant making an untimely request for self-representation does not seek a
continuance does not deprive the court of discretion to deny the motion. (People v.
Jenkins (2000) 22 Cal.4th 900, 963.)
In exercising its discretion, the trial court should take into consideration the
following factors: (1) the quality of defense counsel’s representation; (2) the
defendant’s prior requests to substitute counsel; (3) the reasons for the request; (4) the
length and stage of the proceedings; and (5) the disruption or delay which would be
caused by granting the motion. (People v. Windham, supra, 19 Cal.3d at pp. 127-128.)
The court need not explicitly consider each of the factors when the record indicates
sufficient reasons to constitute an implicit consideration thereof. (People v. Scott (2001)
91 Cal.App.4th 1197, 1206.) The trial court’s exercise of discretion will not be
overturned except upon a showing of abuse. (People v. Clark (1992) 3 Cal.4th 41, 101.)
We set forth, at length, the history of defendant’s assertions and subsequent
waivers of the right to self-representation. On January 27, 2004, defendant was charged
by information with the crimes arising out of the incidents set forth above. He entered a
plea of not guilty. On February 18, 2004, he requested a Marsden12
hearing to replace
trial counsel. The trial court concluded defendant actually wanted to proceed in pro per.
The trial court gave defendant the necessary forms to request self-representation. On
March 2, 2004, defendant’s motion for self-representation was granted.
12
People v. Marsden (1970) 2 Cal.3d 118.

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On July 2, 2004, defendant requested co-counsel. His request was denied. On
August 24, 2004, defendant requested a continuance. His request was denied.
Defendant responded, “In pushing me -- well, you guys are going to have the trial pretty
much without me, because I’m not picking a jury, I’m not giving up my status, and
I refuse to be railroaded.” The trial court determined defendant was ready for trial over
his objection. Defendant responded, “You’re going to have it without me.” The trial
court warned defendant he risked a finding of contempt.
On August 21, 2004, defendant gave up his pro per status for the first time. The
court reappointed Deputy Public Defender Richard Kim, who had represented defendant
when he had first sought self-representation. Defendant believed Attorney Kim had
been involved in the alleged forgery of the pursuit videotape. As Attorney Kim had
been reappointed and defendant claimed a conflict with Attorney Kim, the court cleared
the courtroom to conduct a Marsden hearing. Defendant refused the Marsden hearing.
Defendant again objected to proceeding with Attorney Kim as his counsel, but when
asked why he did not want a Marsden hearing, defendant claimed that he did not need
one, saying, “I see how this is going.” After defendant repeated that he wanted an
attorney other than Attorney Kim but refused a Marsden hearing, the court gave
defendant a choice of Attorney Kim or proceeding in pro per. Defendant again rejected
Attorney Kim, so his pro per status was reinstated.
On September 7, 2004, defendant successfully filed a peremptory challenge
against Judge Eric Taylor, the trial judge. The case was transferred to the courtroom of
Judge Andrew C. Kauffman. Before this new judge, defendant explained that he was

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“overwhelmed” by preparing for trial and that he really needed legal counsel, but that he
did not want to be represented by Attorney Kim. When the court explained that the trial
would proceed, defendant stated he would not participate, promising to just sit quietly
and not disturb the proceedings. At this point, the court suggested appointing standby
counsel; defendant agreed. Attorney David Herriford was appointed standby counsel.
The court then explained to defendant that if he wanted to give up his pro per
status, Attorney Herriford would be appointed as counsel. The court cautioned, “once
you give up your pro per status, it’s gone. You won’t get it back.” After meeting
briefly with Attorney Herriford, and being assured that Attorney Herriford would be
granted all necessary continuances, defendant agreed to accept Attorney Herriford as
counsel. The court again indicated that if defendant waived his right to proceed in pro
per, he could not get it back. Defendant agreed and gave up his pro per status for a
second time. Attorney Herriford was appointed counsel for defendant.
On January 24, 2005, the day set for trial, defendant filed a handwritten Marsden
motion. At the hearing, defendant explained that he had previously shown the allegedly
falsified police chase video to Attorney Herriford, and had pointed out all of the places
on the video which demonstrated the tape had been falsified. Defendant alleged that,
subsequent to the time he showed the tape to Attorney Herriford, the video had been
changed to redact all of the questionable frames he had identified for Attorney
Herriford. Arguing that Attorney Herriford had conspired with the prosecution to
tamper with the evidence against him, defendant sought new counsel. The trial court
agreed to compare the current, allegedly edited, version of the chase video with the

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purportedly unaltered version in the possession of defendant’s expert. After viewing
both tapes, the court concluded they were exactly the same. Finding no merit to
defendant’s contention that Attorney Herriford had tampered with the evidence, the
court denied defendant’s Marsden motion. At this point, defendant requested to
proceed in pro per, and indicated he was ready for trial. The court granted defendant
pro per status for the third time. Attorney Herriford remained standby counsel.
The case was eventually transferred to the courtroom of Judge Mark S. Arnold
for trial. On February 2, 2005, the trial court advised defendant of the difficulties of
self-representation. Defendant indicated he wanted to retain his pro per status.
Defendant sought a continuance to subpoena expert witnesses who would allegedly
show the pursuit video had been falsified; the request was denied.
On February 3, 2005, defendant waived his pro per status for the third time. The
court explained to defendant that the trial was about to commence. The court warned
that if defendant gave up his pro per status, it would be for the entire case, and that he
would not get it back. Defendant agreed. Attorney Herriford was reappointed counsel
for defendant. Jury selection commenced.
The next day, jury selection continued during the morning session. During the
afternoon session, defendant requested to represent himself for a fourth time. The court
denied defendant’s motion, and the case proceeded with Attorney Herriford
representing defendant.
On appeal, defendant contends the trial court erred in denying his fourth request
for self-representation. As the request was made partway through jury selection, it was

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untimely and the trial court therefore possessed discretion to deny the motion.
Considering the five factors that should go into a trial court’s exercise of discretion, it is
apparent that the court’s discretion was not abused. First, the quality of defense
counsel’s representation was not subject to question. Second, the defendant’s prior
requests to substitute counsel were plentiful. This was not defendant’s first request, but
his fourth request to proceed in pro per, after he had previously been granted
self-representation three times, and had thereafter waived such status. Third, the
reasons for the request were unpersuasive. Defendant sought to replace Attorney
Herriford because he believed that Attorney Herriford had conspired with the
prosecution to alter the videotape, a charge which had already been investigated and
determined to be untrue. Fourth, the length and stage of the proceedings did not weigh
in favor of granting defendant’s request; this promised to be a lengthy trial with many
witnesses, and jury selection had already commenced. As to the fifth factor, the
disruption or delay that may be caused by granting the motion, it is true that defendant
did not request a continuance.13
This factor alone is not controlling and, on balance, the
trial court did not abuse its discretion in denying the motion.
13
We note that defendant previously expressed an intention to not participate in the
proceedings when he did not get his way when representing himself. The possibility
that defendant might attempt to bring the trial to a halt by absenting himself may also
have been a consideration of the trial court.

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3. Sufficiency of the Evidence that the Defendant Used a Real, Loaded Gun
Defendant contends that, as no gun was ever found and there is no suggestion
that he ever fired his weapon, there is insufficient evidence that he used a real, loaded
gun.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to
review the whole record in the light most favorable to the judgment to determine
whether it discloses substantial evidence—that is, evidence which is reasonable,
credible, and of solid value—such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The
federal standard of review is to the same effect: Under principles of federal due
process, review for sufficiency of evidence entails not the determination whether the
reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable
doubt, but, instead, whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)
The standard of review is the same in cases in which the prosecution relies mainly on
circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) ‘ “Although it
is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is
susceptible of two interpretations, one of which suggests guilt and the other innocence
[citations], it is the jury, not the appellate court[,] which must be convinced of the
defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify
the trier of fact’s findings, the opinion of the reviewing court that the circumstances

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might also reasonably be reconciled with a contrary finding does not warrant a reversal
of the judgment.” ’ [Citations.]” ’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th
1, 11.)
To establish that a defendant used a firearm within the meaning of the firearm
enhancements, there must be evidence of a firearm designed to shoot and which gives
the appearance of shooting capability. (People v. Nelums (1982) 31 Cal.3d 355,
358-359.) To establish the offense of assault with a firearm, committed by threatening
someone with a gun, there must be evidence the gun was loaded.14
(People v. Schwartz
(1992) 2 Cal.App.4th 1319, 1325.)
“The character of the weapon may be shown by circumstantial evidence.
[Citation.] From testimonial descriptions of the weapon and its role in the commission
of the crime, a jury may draw a reasonable inference of guilt. [The r]easonableness of
the inference depends upon [the] adequacy of the descriptions.” (People v. Hayden
(1973) 30 Cal.App.3d 446, 451-452.) When robbery victims “testified that the robber
pointed and threatened them with a weapon which they variously described as a gun,
revolver and small caliber revolver,” and that he ordered them to place their valuables in
14
Defendant was convicted of assault with a firearm on McKnight because he
struck McKnight on the head with his gun. An assault with a firearm conviction on the
basis that the gun was used as a club or bludgeon need not be supported by evidence the
gun was loaded. However, the remaining counts of assault with a firearm were based
on defendant pointing his gun at the victims with an intent to shoot; such threats do not
constitute assaults unless the gun was loaded.

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a bag, the evidence was held sufficient to sustain a finding that the defendant used a
firearm. (People v. Hayden, supra, 30 Cal.App.3d at pp. 452-453.)
Similarly, a “defendant’s own words and conduct in the course of an offense may
support a rational fact finder’s determination that he used a loaded weapon.” (People v.
Rodriguez, supra, 20 Cal.4th at p. 13.) A threat to shoot someone can reasonably be
interpreted “as an admission by [the] defendant of his present ability” to do so. (Id. at
pp. 7, 12.) Indeed, simply pointing a gun at someone and saying, “Don’t” may be
sufficient evidence from which a jury can infer that the gun was loaded. (Id. at
pp. 13-14.)
In this case, there was sufficient evidence from which the jury could determine
that defendant used a real, loaded gun. Witnesses in each of the four incidents
described defendant’s weapon as a revolver. Indeed, in each incident, at least one
witness described defendant’s weapon as being a .38 caliber handgun. Moreover,
defendant’s words and conduct were sufficient for the jury to infer the revolver was
loaded. At the El Torito Grill, defendant, when pointing his gun at Rojas, threatened to
“hurt” him if he did not comply. At the Hawthorne Hometown Buffet, defendant
threatened to shoot in the head anyone who ran. At the Westchester Hometown Buffet,
defendant told Taylor he did not want to “hurt” him, while pushing the gun to Taylor’s
back. As such, defendant’s own words are implied admissions that his gun was loaded.
Defendant’s conduct was to similar effect. At each of the three robbery locations,
defendant obtained compliance with his demands by pointing his gun at his victims,
implicitly threatening to shoot them if they did not comply, and therefore implying the

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ability to do so.15
While the employees at Houston’s ran after defendant pulled his gun,
the jury could infer that if defendant used a loaded gun in his first three robberies, he
continued to do so in his next attempt. The evidence is therefore sufficient.
4. Uncharged Sentence Enhancements
In two counts, with respect to victims Delrey and Taylor, defendant was charged
with assault with a firearm, but the personal use of a firearm enhancement (Pen. Code,
§ 12022.5) was not alleged. The enhancement allegations were nonetheless submitted
to the jury, without objection. The jury found them true, and defendant’s sentence was
duly enhanced. Defendant again did not object. On appeal, defendant contends his
sentence on these enhancements constitutes a violation of due process as the
enhancements were not charged with respect to those counts in the information.
Recent authority is to the contrary. The statutory pleading requirements (Pen.
Code, § 1170.1, subd. (e)) and constitutional due process are satisfied if an enhancement
is simply pleaded in other counts of the information. (People v. Riva (2003)
112 Cal.App.4th 981, 1002.) As the enhancement was pleaded in several counts in the
information, it is apparent defendant was on notice that he had to defend against the
firearm enhancement allegation.16
There was no error.
15
Particularly illustrative was defendant’s conduct with respect to Decoline, the
Hawthorne Hometown Buffet employee who did not drop to the floor at defendant’s
initial command. Defendant repeated his command saying, “You don’t hear me?” while
pointing the gun at Decoline. The implied threat is apparent.
16
Obviously, the better practice would be to allege the enhancements with each
count.

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5. Blakely Is Not A Bar
Defendant contends the imposition of consecutive sentences is barred by Blakely.
The California Supreme Court has held the imposition of consecutive terms is not
unconstitutional under the rationale of Blakely (People v. Black (2005) 35 Cal.4th 1238,
1244) and we are bound by the Supreme Court’s holding. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)17
6. Conclusion
We reverse the convictions related to the Hawthorne Hometown Buffet robbery,
counts 14-20, and remand for a new trial. We note that defendant’s sentence on the
remaining counts is an indeterminate term of 125 years to life consecutive to a
determinate term of 63 years.18
17
Defendant received consecutive sentences pursuant to the Three Strikes law.
(Pen. Code, § 667, subd. (c)(6).) In other words, consecutive sentences were imposed
due to his prior convictions, not based on any other aggravating factor. Even if
California’s determinate sentencing scheme were invalidated under Blakely, it is not
apparent that defendant would be entitled to any relief.
18
We court sought additional briefing on whether defendant’s sentence
enhancements under Penal Code section 667, subdivision (a) were properly calculated.
As the prior convictions were not brought and tried separately, the trial court properly
imposed a single enhancement on each count.

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DISPOSITION
The convictions on counts 14-20 are reversed and the matter is remanded for a
new trial on those counts only. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, J.
WE CONCUR:
KLEIN, P. J.
ALDRICH, J.

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