Opinion
LUCAS, J.
The principal issue presented by this case is whether the trial judge improperly denied defendant’s motions for continuance. Defendant asserts that (1) he had insufficient time to examine California Jury Instructions, Criminal (CALJIC), and (2) he had not had the opportunity for eight hours of sleep the night before trial.
I. Facts
On January 17, 1982, at approximately 8 p.m., Gregory Leverich was playing cards in his home in Fullerton when he heard the sound of breaking glass. He opened his front door and saw a man enter through a window of the Smart & Final store across the street. While Leverich’s wife telephoned the police, Leverich watched the man crawl out of the window, grab a bundle from inside the building, run across the street, and drive off in a six- or seven-year-old red Camaro. Although Leverich did not see the man’s face, he was able to describe his clothes and car to the police. In a matter of minutes, an officer of the Fullerton Police Department stopped defendant, who was driving a red Camaro matching Leverich’s description, five or six blocks from the Smart & Final store. Leverich identified the car and driver at the scene of defendant’s arrest. During the few minutes that passed between the time the police stopped defendant and Leverich’s field identification, the police officers engaged defendant in general conversation. Defendant carried no identification and gave an improbable explanation for his presence. He then stated, “You got me. What more do you want?” In plain view in the car was a box containing 30 cartons of cigarettes later determined to have been stolen from the Smart & Final store. Defendant had been released on parole less than two weeks earlier.
II. Procedure
What ought to have been a simple prosecution for burglary (a violation of Pen. Code, § 459) tested the patience of a number of superior court judges before a verdict was finally returned. To fully appreciate the heroic responses of these trial judges to defendant’s tactics, it is necessary to detail the procedural aspects of this case.
[949]*949Defendant appeared in court three times represented by the public defender, but two weeks before trial, and two and a half months after his first court appearance, he requested that the entire public defender’s office be relieved. After inquiring as to the reasons for that request, Judge Dickey denied the motion. Defendant then requested that his trial be postponed for several months while he attempted to obtain money from his father to retain private counsel. He explained his delay in requesting such action by saying that he did not realize the seriousness of the charges pending against him. Judge Dickey, after a long colloquy with defendant, put the request over for several days and asked the public defender to contact both defendant’s parents to determine whether retaining private counsel would be possible.
At the next hearing, defendant again requested more time to obtain private counsel or to represent himself, and Judge Dickey again continued the matter for one week, until June 1, 1982. At the June 1 hearing, one week before the scheduled trial, the public defender filed an affidavit under Code of Civil Procedure section 170.6 disqualifying Judge Dickey. The case was reassigned to Judge Fitzgerald who first faced defendant on June 7, 1982, the date scheduled for trial. By this time, defendant admitted that his chances for obtaining private counsel were small and the court trailed the matter for a day to allow defendant even more time to reflect upon his request for in propria persona (pro. per.) status.
At the hearing on June 8, 1982, when defendant renewed his request to proceed in pro. per., Judge Fitzgerald entered into an extended colloquy with defendant aimed at discovering whether defendant appreciated the seriousness of the crime charged against him, whether he understood the consequences of appearing in pro. per., and whether his decision was voluntary. Upon being satisfied, Judge Fitzgerald granted defendant’s motion as required under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525], and reset the trial date. The public defender, in open court, gave defendant his case files, discovery motion, and a “pro. per. package.”
In the five months that elapsed between that June 8 hearing and trial, defendant appeared before Judge Fitzgerald ten times. During these appearances defendant moved (1) for the appointment of a private investigator, (2) to submit handwritten motions, (3) for additional pretrial discovery, (4) for more pencils, (5) to have a legal research firm appointed, (6) for the appointment of a “runner,” and (7) to continue the trial date for 91 days. Judge Fitzgerald denied the motions for additional discovery and for the appointment of a legal research firm and refused, after having continued the trial date twice, to continue it for an additional 91 days. Otherwise, the court granted defendant’s motions. The court also held, at defendant’s request, an in camera proceeding and a full length evidentiary hearing both [950]*950aimed at resolving defendant’s claim that he was being denied access to law books.
At last, defendant was brought to trial on November 8, 1982. At trial, defendant requested continuances on the grounds that he was too tired to proceed and that he had not had the opportunity to examine CALJIC. The trial judge, Judge Lee, after lengthy discussions with defendant and the prosecutor, denied those motions. Voir dire consumed about half a day, the trial itself took a day, and the jury returned a guilty verdict in less than an hour and a half.
At defendant’s sentencing hearing, he moved to continue the proceedings until he had studied the probation report, and moved to call as a witness the probation officer who had prepared the report. Both motions were denied and , defendant was sentenced to the upper base term of three years with a one-year enhancement for a prior felony.
III. Major Contentions
Defendant raises two issues for our consideration.
A. Access to Legal Materials. About three weeks before trial, defendant moved to continue the trial date on the ground that he had not had adequate access to law books. He had first raised the question of access to legal materials a month earlier when the court denied his motion for the appointment of a legal research firm. Defendant claims that his lack of access to law books prevented him from preparing a defense and denied him due process. As the record makes markedly clear, however, defendant had access to a law library, including CALJIC; due process does not require more.
We note that defendant had been using the jail law library and the Orange County law library almost daily for three months before raising this issue. During those three months, defendant appeared in court at least five times. Defendant’s actions suggest that he delayed raising this issue until it appeared that his trial was at hand.
After defendant moved to continue the trial date, Judge Fitzgerald, in an admirable display of concern for the possible limitations placed on defendant, held an evidentiary hearing and an in camera proceeding to determine defendant’s access to legal materials.
Those hearings, reflected in some 46 pages of transcript, featured the testimony of 3 sheriff’s deputies called by defendant and numerous exhibits [951]*951such as lists of books and book request slips. The stack of defendant’s request slips for books he actually received was approximately three inches high. The testimony showed that books circulated from the jail library several times a day and that a deputy made a daily run to the Orange County law library. Defendant requested approximately two or three books per day, five days a week from the time he first assumed pro. per. status. Defendant could copy any noncirculating book through his “runner.”
Defendant, in camera, requested the judge to subpoena certain inmates who resided near defendant’s cell to testify as to the availability of books. He also sought the testimony of lawyers: “The Defendant: I plan to call a couple of attorneys, any attorney, that’s in the building that day and a couple of district attorneys, any district attorneys that are in the building that day and the reason why I want two of each of them is because I want one that specializes in trial and I want one that specializes in research on both attorneys for defense and district attorneys. And I’m going to ask them if they could pursue their cases with diligence and competency without the assets of ... a CALJIC fourth edition with supplements.” Defendant also stated that he would need CALJIC “for at least 30 days before I went to trial, access to it for three or four hours a day . . .,” to which the judge responded that the average attorney “probably doesn’t spend more than 15 minutes on jury instructions.” Finally, defendant requested the court to convene in the jail library to view the conditions there. The judge denied those requests.
At the conclusion of the hearing and in camera proceeding, the judge specifically found that the library facilities were fully available to defendant either through the daily runs or his runner and, more particularly, that defendant had access to all law books necessary to any defense.
Faretta simply requires that a pro. per. defendant be given the same treatment as an attorney. The judge here made that clear at defendant’s Faretta hearing:
“The Court: You understand that during the course of a trial, if you represent yourself, you have to conduct yourself as a lawyer by all the standards of a person who is schooled in the law? [1] The Court does not have a responsibility to school you in the law ....
“The defendant: In general, it’s just cut and dry, if I just wanted to go pro per just for the sake of representing myself, because I think that I can, at my best, I think I can do a better job than my public defender at his best.”
In fact, defendant was specifically aware of the difficulties in obtaining law books at his Faretta hearing:
[952]*952“Mr. Smith: . . . [S]ometimes there’s problems in getting law books from the Orange County Law Library insofar as rules of jury trials, because the law library at the County jail is a little bit incomplete .... [1] It’s pretty good for motions and as far as that . . . .”
Defendant does not assert that he was treated any differently from an attorney. The materials he requested but did not receive were either checked out or did not circulate. Defendant’s mother was appointed as his “runner” to photocopy noncirculating materials from the county law library. Defendant had exactly the same access to all materials as any member of the bar or the public and never claimed that he had been forbidden to obtain or copy any book. Neither Faretta, nor any case we have found, requires more.
At the end of his trial, defendant renewed his motion to continue based on inadequate access to books. Specifically, defendant claimed that he had not had an opportunity to examine CALJIC and so had not had a chance to prepare jury instructions. The trial ended sooner than the prosecutor expected, because defendant did not cross-examine any prosecution witnesses and did not call any witnesses of his own. For that reason, a two-hour recess was called while the prosecutor finished preparing her jury instructions. When court reconvened, defendant and Judge Lee first saw the proposed jury instructions. The judge loaned defendant his copy of CALJIC and proceeded to consider the instructions. The court refused certain instructions and made modifications in other proposed instructions. At no time did defendant object to, or question the propriety of, particular instructions, or suggest additional ones.
As the court found at the elaborate hearing, defendant had access to CALJIC through his runner from the moment he assumed pro. per. status. Defendant himself admitted in open court six weeks before trial that he knew of CALJIC’s existence and that he desired to use it. Defendant knew that CALJIC did not circulate (and would have to be photocopied) no later than three weeks before trial. Defendant’s claim that he was denied access to CALJIC is simply without foundation.
Even if we were to accept defendant’s contention that he was denied the opportunity to examine CALJIC until the conference on jury instructions, he has not shown any prejudice to his case. The trial judge did not simply accept the instructions proffered by the prosecution. Instead, he independently evaluated the proposed instructions, modifying or refusing almost one-quarter of those proposed. During this process, which took place on the record, defendant had a copy of the proposed instructions. The charge against defendant was quite simple and straightforward. Defendant pre[953]*953seated no witnesses nor did he suggest or present any defense. Accordingly, the trial judge did not need to consider or craft instructions that would accurately instruct the jury on any defenses. Significantly, defendant is unable to point to any error in the instructions as given, nor does he assert that, had he studied CALJIC, he would have proposed proper instructions that were not given. In sum, the trial judge’s instructions were complete and appropriate in light of the simple nature of the charges and the overwhelming evidence of defendant’s guilt.
B. Lack of Opportunity for Sleep. On the morning of trial, defendant requested a continuance on the ground that he had not been allowed eight hours of sleep and was too tired to present a case. He asserts that the trial judge erred by refusing to hold a hearing as to whether he had the opportunity for eight hours of sleep and that his due process rights were violated because he could not adequately defend himself due to lack of sleep. Defendant’s position is unsupported both factually and legally.
Factually, the record reflects that defendant was attentive, lucid, and articulate throughout his trial. He renewed, at some length, his motion for continuance based upon denial of access to law books and registered other desultory complaints about his treatment, all before the veniremen were present. Defendant also presented a lengthy argument in which he asserted that the law required the opportunity for eight hours of sleep. Defendant fully participated in voir dire, exercising five peremptory challenges and stipulating to the exclusion of two other veniremen for cause. Although Judge Lee refused to hold a separate hearing on the morning of trial, he entered an order requiring the sheriff’s department to allow defendant the opportunity for eight hours of sleep. Judge Lee also asked the prosecutor to investigate and report on the opportunity for sleep given to Orange County jail inmates the night before court appearances. She did so. Her oral report, although hearsay, was that defendant was given the opportunity for approximately seven hours of sleep.
The flavor of the proceedings is captured by this exchange:
“The Court: Mr. Smith, would you like to make an opening statement?
“Mr. Smith: No.
“The Court: There was [a] cough, and I didn’t hear the defendant’s answer.
“Mr. Smith: I’m too tired.” After the prosecution’s direct examination of its first witness defendant declined to cross-examine. The trial judge, in [954]*954what can only be considered an act of supererogation, offered five times to have the witness return the next day for cross-examination. The defendant’s responses were argumentative and nonresponsive but in no way support his allegation that he was too tired to proceed.1 After the prosecution’s second witness testified on direct examination the following exchange took place:
“The Court: Mr. Smith, do you have any questions?
“Mr. Smith: Do you want me to tell you some more about my constitutional rights?
“The Court: I’m going to give you plenty of time to talk about your constitutional rights when the jury isn’t here.
[955]*955“Mr. Smith: That’s all I’m going to talk to you about.
“The Court: Do you want to ask any questions?
“Mr. Smith: You don’t want me to tell you some more about my constitutional rights.
“The Court: The witness may step down.”
The next morning, when trial continued, defendant moved to replace the investigator that had been appointed for him and again complained about his lack of sleep. Specifically, he claimed that he had gotten more than five, but less than six hours of sleep. Defendant also requested the court to call seven other prisoners as witnesses to the fact that inmates were being denied the opportunity for eight hours of sleep. Those motions were denied. Defendant again refused to cross-examine the final prosecution witness. When the prosecution rested, defendant moved to subpoena an inmate from San Quentin. The court noted that the request was untimely and denied it. Defendant presented a rambling closing statement in which he admitted making the statement, “You got me, what more do you want?” and characterized that as a confession.
Defendant points to his failure to cross-examine and failure to present a defense as evidence that he was too tired to conduct his case. Given an eyewitness identification, defendant’s arrest in the getaway car with the stolen property, and his own admission that he made an incriminating statement (which he himself characterized as a confession), we must conclude that defendant failed to present a defense because none was available. The record abundantly reflects that defendant fully participated in the proceedings to the extent he desired.
Defendant at trial relied on Stewart v. Gates (C.D.Cal. 1978) 450 F.Supp. 583 (remanded (9th Cir.) 618 F.2d 117), and Rutherford v. Pitchess (C.D.Cal. 1978) 457 F.Supp. 104. Both cases involved challenges to certain jail conditions (Stewart involved the Orange County jail, where defendant was held) and resulted in orders requiring, among other things, that prisoners be given the opportunity for eight hours of sleep before court appearances. Neither case required the trial judge here to hold a hearing or to suspend trial. No evidence suggests that Orange County jail officials were deliberately flouting the orders in Stewart. The concern of the district judge in both Stewart and Rutherford was not with affording prisoners the opportunity for eight hours of sleep, but ensuring that no defendant “is so worn out . . . that he lacks the alertness to help his attorney or to try to ‘put his best foot forward’ in the presence of the trier of fact.” (Rutherford, supra, [956]*956457 F.Supp. at p. 114.) It is clear that defendant was awake, capable of participating in the proceedings and that he did so. Accordingly, the trial judge did not err in denying defendant’s motion for a continuance.
IV. Other Contentions
Defendant raises a raft of other issues, none of which has merit. We briefly discuss each issue.
A. Marsden Hearing. Defendant asserts that the court failed to inquire sufficiently into his reasons for wishing to have the public defender relieved and that such failure violates People v. Marsden (1970) 2 Cal.3d 118, 123-124 [84 Cal.Rptr. 156, 465 P.2d 44]. In People v. Carr (1972) 8 Cal.3d 287 [104 Cal.Rptr. 705, 502 P.2d 513], we held that the decision to allow a substitution of attorney is within the discretion of the trial judge “unless there is a sufficient showing that the defendant’s right to the assistance of counsel would be substantially impaired if his present request was denied. [Citations.]” (8 Cal.3d at p. 299.)
At a pretrial hearing, defendant informed the judge that “[T]here is a conflict between myself and the public defender’s office. I would have declared it before except I didn’t think this charge was that serious . . . . [1f] I would like to be appointed an attorney not affiliated with the public defender’s office in any way.” Defendant then launched a discussion of whether he would be able to retain private counsel. The trial judge inquired, “As far as the conflict of interest is concerned, Mr. Smith, you haven’t stated any reasons. It is not enough just to say that it is a conflict of interest or there is a conflict between you.” Defendant indicated that he had been dissatisfied with the performance of another public defender in a prior case. That public defender appeared as cocounsel at defendant’s preliminary hearing, but did not appear as his counsel in any subsequent proceedings. Defendant then rambled on about extraneous matters until the court inquired as to defendant’s objection to his present public defender. Defendant simply stated “I don’t want anybody with the public defender’s office on my case because of [the former public defender].”
The trial court repeatedly asked defendant to articulate concrete reasons for his dissatisfaction with his present public defender or the public defender’s office as a whole. Defendant’s only reason was his dissatisfaction with his former public defender who apparently was not assigned to this case. Such a reason is not sufficient and the trial judge committed no error in denying the motion, particularly because, as the judge noted, defendant was aware that the public defender had represented him approximately two months before he made the motion to replace his counsel.
[957]*957B. Faretta Hearing. Building on his assertion that the court improperly denied his Marsden, supra, 2 Cal.3d 118, right, defendant claims that his choice was between representing himself or accepting representation from counsel who should have been relieved. Thus defendant argues that his waiver was not voluntary as required under Faretta, supra, 422 U.S. 806. As set forth above, the trial judge’s ruling on the Marsden issue was correct. Accordingly each of the alternatives facing defendant was proper. Defendant does not claim that the Faretta hearing was improperly conducted, simply that the alternative to waiving his right to counsel was impermissible under Marsden. As noted above, the Marsden argument is not persuasive and his Faretta argument fails for the same reason.
C. Appointment of Experts. Defendant cites two instances of the judge’s refusal to appoint an expert and argues that those refusals were abuses of discretion. Defendant bases his claims of error on Evidence Code section 730 which provides in relevant part, “When it appears to the court, . . . that expert evidence is or may be required ... the court . . . may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert . . . relative to the fact or matter as to which such expert evidence is or may be required.” First, defendant moved for the appointment of a legal research firm to assist him in preparing his legal arguments, which request the court properly denied. As we noted in People v. Redmond (1969) 71 Cal.2d 745, 758 [79 Cal.Rptr. 529, 457 P.2d 321]; “[A defendant] is not entitled to special privileges not given an attorney, and the judge ordinarily is not required to assist or advise him on matters of law, evidence or trial practice. [Citations.]” Further, it is clear from the language of Evidence Code section 730 that a legal research firm would not be an expert. Section 730 speaks to the situation where expert evidence is or may be required and where the expert may testify regarding such evidence. No amount of legal research would produce evidence—that is, “testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.” (Evid. Code, § 140.) Accordingly, defendant’s reliance on Evidence Code section 730 is misplaced.
Second, defendant claims that the court abused its discretion when it refused to replace the court-appointed investigator. Defendant first moved for the appointment of an investigator some six months after his arrest. The first investigator declined to serve and the court then appointed Harry Block in late September 1982. At a hearing on October 1, 1982, defendant stated “[Tjhere’s a possible conflict between myself and the private investigator. If I declare a conflict of interest, I’ll state the reasons [at a hearing to be held in two weeks].” (Italics added.) Defendant did not mention this matter at that subsequent hearing but raised the issue again at a hearing on October [958]*95822, 1982, before Judge Fitzgerald, two and a half weeks before trial and a month after Block’s appointment.2 Defendant never filed a written motion to replace Block.
Defendant alleged during trial that Block had been working for the district attorney, and that Block had worked in defendant’s neighborhood “approximately ten years ago.” The court refused to hold a hearing and denied a motion for a mistrial. Only during trial did defendant assert that Block knew defendant’s family. These allegations at trial, apparently intended to persuade a judge who was unfamiliar with defendant’s tactics, did not succeed.
Defendant’s reliance on Evidence Code section 730 is again misplaced for the reason that Block would not have been able to testify competently to any facts. More to the point, the court appointed an investigator as soon as defendant requested one. Defendant never flatly requested a replacement for Block until trial, well over six weeks after Block’s appointment and more than a month after defendant indicated that he knew Block might be unacceptable. Such conduct precludes a finding of error.
D. Refusal to Subpoena Witnesses. Defendant claims that the trial court violated his constitutional right to compel witnesses for his defense. As a related matter, defendant seems to assign as error the court’s failure to hold evidentiary hearings on defendant’s requests for witnesses. As the Court of Appeal stated in People v. Fernandez (1963) 222 Cal.App.2d 760 [35 Cal.Rptr. 370]: “Obviously, the right to subpoena witnesses which is given to every defendant by the Constitution and laws of this state [citations] does not authorize the indiscriminate use of the process of the court to call witnesses whose testimony could not possibly be received or which is grossly cumulative .... Anyone who has had anything to do with the adminis[959]*959tration of criminal law knows that defendants occasionally express a wish to call many witnesses from all parts of the state who cannot possibly add a single relevant fact to the complex of factors applying to the crime charged; the courts do have inherent power to control the issuance of their own process and they should not permit an abuse of the constitutional right to subpoena witnesses. ...” (222 Cal.App.2d at pp. 768-769.)
Defendant attempted to secure witnesses on at least three occasions. First, during the hearing on his access to law books, he sought to subpoena “Anthony Amato AKA Johnny Apollo, who is housed in the same (jail] area as me. [1] (0]r generally anybody that’s in the same area as me, but somebody in the same area.” The judge properly denied the request, after conducting the in camera hearing, on the ground that the witnesses would not add testimony relevant to the issue of defendant’s access to law books.
Second, defendant during trial sought to compel the testimony of any one of seven fellow inmates on the issue of the opportunity for sleep. The judge, noting that trial was underway, denied the motion. None of these witnesses could have testified to any matter relevant to the burglary with which defendant was charged. As the judge acted properly in denying defendant’s motion based on lack of opportunity for sleep (see, ante, pp. 953-956), he was within his discretion in refusing to subpoena those inmates.
Finally, on the morning of trial, when asked by the trial judge whether he admitted or denied the allegation of a prior conviction, defendant replied that he wished to subpoena a San Quentin inmate named Carlos Negron: “As soon as I interview him, I will be able to ascertain whether or not to plead guilty or not plead guilty to the prior, [f] Also I need that particular witness for the purposes of a defense.” Despite numerous and substantial contacts with with the criminal justice system,3 a knowledge for eight months of the very simple charges against him, and the demonstrated ability to articulate his desires in court, defendant’s first mention of this witness or indeed, any competent witness, came on the morning of his trial. Defendant explained his failure to seek Negron’s subpoena earlier by stating “That is because I could hardly believe that I was going to be denied my [Faretta] rights, because I have access to hardly no books at all.” The court denied the request on the grounds that it was untimely and that defendant had made no showing, or even a suggestion, that Negron’s testimony would be relevant. The judge also refused defendant’s request for an in camera hearing on Negron’s possible testimony. Defendant’s renewed request for Negron, made after the prosecution’s case-in-chief, was likewise denied.
[960]*960The trial judge was well within his discretion. Penal Code section 2621 specifically gives discretion to the court to grant or deny a subpoena for a witness who is a prisoner outside the county of trial. Untimeliness is a valid reason for exercising that discretion against issuing a subpoena. (People v. Dillinger (1968) 268 Cal.App.2d 140 [73 Cal.Rptr. 720].)
E. Sufficiency of the Evidence. Defendant claims that the evidence is insufficient to support the verdict. Defendant’s contention is without merit in light of the facts previously discussed (see, ante, pp. 948-950).
F. Motion for a New Trial. At his sentencing, approximately one month after the verdict, defendant stated that he desired a two-month continuance to make a motion for a new trial. The trial judge again indulged a tirade in which defendant canvassed the arguments and complaints he had been making throughout his incarceration. The trial judge denied defendant’s motion for a lengthy continuance and stated that “[T]o the extent that the defendant’s remarks are consistent for a motion for new trial, the Court denies that motion.” Under Penal Code section 1181, the burden is on the defendant to move for a new trial. Defendant filed no written motion or notice of motion but simply informed the court at his sentencing hearing that he wanted to make such a motion. He did not specify the grounds upon which he sought a new trial.
If defendant’s statements at his sentencing are considered to be a request for a continuance in order to move for a new trial, the trial judge properly denied that request. This hearing was held about four weeks after trial and defendant did not present any valid reason why he had not previously submitted a motion for a new trial, or requested a postponement of his sentencing. To the extent that defendant’s assertions were considered by the judge as a motion for a new trial, he was correct in finding that no new arguments were raised, and that all defendant’s arguments had been considered and resolved against him. Therefore, no ground for a new trial existed and no error appears from the judge’s actions.
G. Request to Cross-examine Probation Officer. Defendant, at his sentencing, requested that the court call as a witness the probation officer who prepared the probation report. Defendant has no right to cross-examine such a witness for the reasons stated in People v. Arbuckle (1978) 22 Cal.3d 749 [150 Cal.Rptr. 778, 587 P.2d 220, 3 A.L.R.4th 1171], The reasoning behind Arbuckle was that, although a defendant is not precluded from presenting any affirmative evidence of his own, neither the Sixth Amendment nor the Penal Code requires that he be permitted to cross-examine the person who, pursuant to statutory mandate, prepares a proba[961]*961tion report. Accordingly, the trial judge did not err and defendant’s argument is without merit.
H. Dual Use of Prior Prison Term. Defendant contends that the sentencing judge used his prior felony prison term both to enhance his sentence and to impose the upper term, a violation of Penal Code section 1170, subdivision (b). The record reflects that the sentencing judge and the prosecutor discussed enhancement and aggravation and that, when pronouncing sentence, the judge carefully avoided using the prior prison felony as a fact in aggravation when imposing the upper term. In any event, the record reflects other factors in aggravation (such as planning and sophistication) and no factors in mitigation, so that a remand for resentencing would not benefit the defendant.
V. Conclusion
This case presents a classic example of a street-wise defendant doing everything possible to delay his conviction and to induce error into every phase of the proceeding. It is a credit to the various judges involved that they showed such deference, consideration, and courtesy to this defendant. Despite his best efforts, defendant was unable to prevent his conviction and no ground appears for reversal.
The judgment is affirmed.
Mosk, J., Kaus, J., Broussard, J., Reynoso, J., and Grodin, J., concurred.