Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Nos. NA078941, NA073139. Richard R. Romero, Judge.
James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Appellant Idris Brady (“Brady”) appeals his conviction for one count of corporal injury on a spouse, cohabitant or child’s parent (Pen. Code, § 273.5, subd. (a)) and one count of criminal threats (§ 422). Brady contends that the trial court violated his constitutional rights when it denied his requests for self-representation under Faretta v. California (1975) 422 U.S. 806 (Faretta). Brady also argues that the trial court erred in imposing a consecutive sentence on the criminal threats conviction. We affirm.
All further statutory references are to the Penal Code.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. The Charges
In an August 11, 2008 information, the Los Angeles County District Attorney charged Brady with one count of inflicting corporal injury on the mother of his children, Maleena Bland (“Bland”) (§ 273.5, subd. (a)), one count of making criminal threats against Bland (§ 422), and one count of making criminal threats against his mother, Cynthia Carter (“Carter”) (§ 422). The Information also alleged that Brady had suffered one prior serious or violent felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), one prior serious felony conviction within the meaning of section 667, subdivision (a)(1), and one prior prison term within the meaning of section 667.5, subdivision (b). Brady pled not guilty to all charges and denied the prior conviction allegations.
II. The Prosecution’s Case
As of July 2008, Brady and Bland had been in a romantic relationship for 11 years. They had a nine-year-old daughter, K.B., and a two-year-old son, Z.B. Bland also had a 10-year-old son, J.L. On or about July 2, 2008, Bland decided to separate from Brady, and she and the children began staying at a motel. During the day, Bland and the children spent time at the home of Brady’s mother, Carter, in Long Beach. On the evening of July 8, 2008, Bland and the children arrived at Carter’s home where Brady was waiting. While in Carter’s home, Brady and Bland had a physical altercation during which Brady assaulted Bland. Brady then fled the home on foot with the child, K.B. Shortly thereafter, the police arrived to investigate an incomplete 911 call made by Carter during the incident.
Long Beach Police Officer Sovanna Ly was one of the first officers to respond. Officer Ly observed that Bland was hysterical, crying and shouting that “someone took [her] baby.” The officer also noticed that Bland had a cut on her nose and was bleeding. After ascertaining that K.B. had been taken by her father, Officer Ly drove around the area and saw a young girl walking with Brady. Brady ran away as soon as he saw the officer, and K.B. was safely returned to Bland. A police dog later located Brady hiding under a nearby house. Prior to deploying the dog, an officer from the K-9 unit used his patrol car’s public address system to announce that the area was about to be searched by police dogs and the suspect should surrender. The officer also repeatedly called to Brady to come out with his hands up and warned that a dog would be deployed if he did not comply. When Brady refused to surrender, a police dog was sent in and pulled him out from under the house.
Long Beach Police Officer Marc Hawkins interviewed Bland approximately 30 to 40 minutes after the incident. Officer Hawkins observed that Bland was visibly shaken and had swelling on the left side of her face and a large contusion on her nose. During the interview, Bland told Officer Hawkins that Brady had hit her numerous times in the past, but she never called the police because he had threatened to kill her. Bland also reported that Brady had forced her into prostitution and that she recently had left him because she no longer was willing to prostitute herself. When Bland arrived at Carter’s home on July 8, 2008, she went into the bathroom to avoid Brady. Brady began screaming at Bland and said, “Bitch, you better come outside. You’re getting your ass kicked.” Brady then pushed his way into the bathroom and told Bland, “I’m going to beat the hell out of you so bad, you’re gonna be damn near dead before someone finds your ass.” Bland ran into the family room followed by Brady. Brady demanded that Bland go outside with him because he did not want to fight in his mother’s home. When Bland refused, Brady punched her in the face with a closed fist, kicked her when she fell to the ground, hit her face repeatedly with both hands, and stomped on her stomach with his foot. According to Bland, Carter initially tried to intervene and then called 911.
Later that night, Long Beach Police Officer Leticia Gamboa interviewed Carter at her home. In her interview, Carter recounted that Brady told Bland to go outside because “he was gonna kick her ass.” When Bland did not comply, Brady threw a small object at her striking her arm. Carter tried to help Bland, but Brady warned his mother that if she did not move aside, he would hurt her. She then dialed 911, but decided to hang up the phone when Brady threatened to kill Bland if Carter called the police. Carter saw Brady punch, kick and slap Bland. That same night, Officer Gamboa separately interviewed K.B. and J.L. about the incident. Both children reported that they saw Brady punch and kick their mother several times in her face and stomach.
Long Beach Police Detective Araceli Torres was assigned the domestic violence investigation. On July 9, 2008, one day after the incident, Detective Torres conducted a tape recorded interview with Bland at her brother’s home. The detective also took photographs of her injuries. During the interview, Bland recounted that Brady previously had threatened to break her jaw, tie her up, and place her in the trunk of a car if she refused to prostitute herself. Bland had engaged in prostitution for Brady on two occasions and was desperate to escape from him. Brady also threatened to kill Bland on the day she left him, causing Bland to fear for her and her children’s lives. During the July 8, 2008 incident, Brady again threatened Bland, warning her, “I’m going to beat your ass so bad, you’re going to be on your last breath before somebody finds you tonight.” When Bland refused to go outside with Brady, he told her, “You act like you’re not gonna get your jaw broke up in here. I’m trying not to disrespect my momma’s house, but you’re gonna get your ass beat.” During the assault, Brady struck Bland in the face with his fist causing her to fall and then hit her approximately 10 to 15 times while she was on the ground. He also stomped on her chest. As Brady was beating Bland, he said, “This bitch is going to pay for leaving me. This bitch is going to pay for taking away my kids and disappearing on me.... This bitch jaw is gonna be broke.” Bland noted that Brady had physically assaulted her in the past, but she never filed a police report because she was afraid he would harm her and her family.
At trial, Bland initially refused to testify on the ground that she was “plead[ing] the Fifth.” After the trial court instructed Bland that she could not invoke a Fifth Amendment privilege in this case, she testified that she had a physical altercation with Brady on July 8, 2008, at Carter’s home. Bland denied that Brady threatened to kill her that night, but admitted that he told her, “I’m gonna beat the hell out of you so bad, you gonna be damn near dead before someone finds your ass.” She further admitted that Brady said something to the effect of “I’m gonna beat your ass so bad, you’re gonna be on your last breath before somebody finds you tonight.” Bland stated that she was disappointed in Brady during their altercation, but was not afraid of him and did not believe he would kill her. She also recounted that she had a separate altercation with Brady’s sister later that same night which resulted in her injuries. Bland denied that she made many of the statements that were recorded in her interview with Detective Torres. Bland testified that she was angry with herself because she had provoked the altercation with Brady by abandoning him and taking his children.
Carter was also called to testify at trial. Like Bland, Carter initially tried to invoke the Fifth Amendment privilege before being ordered by the trial court to respond to the prosecutor’s questions. Carter testified that she called the police on July 8, 2008, because Brady and Bland were fighting. She acknowledged that the fight was physical, but did not know whether Brady hit Bland. She denied that Brady threatened to kill Bland or to harm Carter when she dialed 911. She also denied telling the police that Brady had threatened her or that he had punched, kicked and slapped Bland. Carter was not sure why she terminated the 911 call before talking to the police, but stated that she was in a state of panic and overreacted to the situation. Carter testified that she believed it was a family matter.
The prosecution called the children, K.B. and J.L., to testify. Shortly before their testimony, Detective Torres and the prosecutor met with the children to prepare them for trial. K.B. told Detective Torres that she saw her father kick and hit her mother. J.L. shared with the detective that he saw his stepfather hit his mother several times and stomp on her stomach. At the start of her testimony, however, K.B. stated that she wanted to “bribe the Fifth” because she was concerned about her father. K.B. reluctantly testified that she saw her father hit, kick and punch her mother several times in the face and arms. She also recounted that, when her grandmother tried to call the police, her father threatened to kill her mother so her grandmother hung up the phone. During his testimony, J.L. similarly asserted that he wanted to “plead the Fifth,” but acknowledged that he did not know the meaning of that statement. J.L. ultimately testified that he was telling the truth when he told the police that his stepfather punched and kicked his mother several times in her face and stomach. Both children denied that their mother ever hit Brady.
III. The Defense Case
Brady testified on his own behalf. According to Brady, he went to his mother’s home on July 8, 2008, for a meeting with Bland. After a few hours, Bland and the children arrived. Upon returning from a short walk with K.B., Brady tried to talk to Bland about their relationship, but Bland refused. Brady and Bland then began arguing about their financial troubles. Brady tried to convince Bland to go outside with him to talk, but she would not agree. Instead, Bland berated Brady for losing his job. When Brady attempted to leave the house with K.B., Bland grabbed Brady by the shoulder, burned him with a cigarette, and spit in his face. Brady became “a little angry” and slapped Bland one time with his open hand. He denied that he kicked Bland or threatened to hurt her. He also denied that he had any history of domestic violence or ever forced Bland to engage in prostitution. Brady stated that he was not acting in self-defense when he hit Bland, but he believed he had been “pushed to that point.”
Brady testified that he did not flee from the police. He saw Bland’s father and brother arriving at Carter’s house and ran to get away from them. Once in hiding, Brady did not hear officers from the K-9 unit call for him to come out. He assumed the dog that attacked him belonged to the owners of the house. Brady previously had been convicted of commercial burglary in 2004 and making criminal threats in 2007. He testified that he took a plea deal in both cases and did not believe that doing so constituted a conviction.
IV. Verdict and Sentencing
The jury found Brady guilty of one count of inflicting corporal injury on Bland and one count of making criminal threats against her. Brady was found not guilty of making criminal threats against Carter. In a bifurcated proceeding, the jury found true the allegations that Brady had suffered a prior conviction for criminal threats in 2007 and had served a prior prison term for a second degree burglary conviction in 2004. Following the jury verdicts, the trial court sentenced Brady to state prison for a total term of 16 years. Brady now appeals.
Brady’s 16-year sentence included an eight-month term for violating his probation in another criminal threats case, Case No. NA073139. In his appeal, Brady initially challenged the trial court’s calculation of his pre-sentence custody credits, arguing that he was entitled to an additional credit of 365 days for a jail sentence he served as a condition of his probation in Case No. NA073139. However, following the filing of his appeal, Brady requested that the superior court correct the alleged error in his custody credits. On June 18, 2009, the superior court granted Brady’s request and thereafter issued an amended abstract of judgment.
DISCUSSION
I. Denial of Requests for Self-Representation
On appeal, Brady contends that the trial court committed reversible error when it denied his repeated requests for self-representation. We conclude that the trial court did not abuse its discretion in denying Brady’s untimely Faretta requests, and even assuming there was any error in the trial court’s rulings, such error was harmless.
a. Relevant Proceedings
On August 11, 2008, Brady appeared for arraignment. He had represented himself at the preliminary hearing in the instant case and in a probation violation proceeding in another case. The trial court asked Brady if he wanted to continue to represent himself and Brady responded that he did. The court inquired whether Brady would consider new appointed counsel, noting that “if the new lawyer, not the one you had before, this new lawyer and you don’t get along or there is some kind of problem, as long as you don’t wait until the trial date, I’ll let you represent yourself again.” In response, Brady stated that “what [he] wanted to request is a 90-day continuance” because he had not received any pro. per. funds or access to the law library to research and prepare his case. Brady added, “So I just wanted to see if I could get a continuance and do some research first, and then if I find that I can’t handle it, then maybe I’ll go to a lawyer.”
The trial court explained that if it permitted Brady to proceed in pro. per., he would not be entitled to appointed counsel at a later date absent “extreme circumstances.” The court asked Brady, “So what’s the harm in getting a new lawyer, and then if it doesn’t work out, I’ll let you go pro per within a reasonable time.” Brady responded, “That’s fine.” Due to a conflict with the public defender’s office, an attorney from the Indigent Criminal Defense Appointments (ICDA) program was appointed to represent Brady at the arraignment. The court set a pretrial hearing for September 8, 2008, and a trial for October 6, 2008, which was day 56 of 60.
On September 8, 2008, the trial court appointed a different ICDA attorney to represent Brady. At that hearing, newly appointed counsel advised the court that Brady was representing himself in another case and wanted “to request a two-month continuance with a time waiver.” Counsel also explained that he needed time to meet with Brady to prepare for trial and to evaluate his client’s proposed list of 31 witnesses. The court indicated that it intended to set a pretrial hearing date and the parties could discuss a continuance at that time. The prosecutor requested a pretrial date in September, noting that he was unavailable the first week of October and that a pretrial hearing was necessary to touch base with defense counsel about his readiness for trial. Defense counsel, however, related that Brady was asking not to return to court on any date in September because of his other case. According to defense counsel, Brady was “adamant about not coming back in September” and “want[ed] to keep it on the calendar for [October] 6th as the trial date.” The court responded, “Very well. [¶] I expect, then, there will be no motions to continue the case. Mr. Brady wants his trial October 6th, we’ll have a trial October 6th.” The court then ruled that the case would remain on calendar for an October 6, 2008 trial date without a pretrial hearing.
On Monday, October 6, 2008, the case was called for trial. At the start of the hearing, defense counsel informed the trial court that Brady “wants to exercise his Faretta rights.” In response to the court’s inquiry, Brady indicated that he initially had “wanted to try to go pro per so that I could see what I could do, and then if I couldn’t handle it, to get a lawyer.” When the court explained that it “doesn’t work” that way, Brady replied, “Yeah, you told me not to do it that way so I’m exercising my right now to go pro per.” The prosecutor objected to Brady’s request, arguing “[t]he defendant was pro per at the preliminary hearing after firing his attorney there. At the arraignment in this case, we discussed this, and [defense counsel] was appointed. And we made it clear to the defendant that it’s gonna go to trial on the day and whether he wants a pretrial to consider these issues, the Faretta waivers, et cetera. [¶] He wanted no court appearances, he would bring it up to the court if he had any motions at all, and we’re now here at 56 of 60 addressing the very thing we had concerns over. It’s up to the court, but if that is the case, then we are announcing ready.” The prosecutor noted that the parties had agreed to continue the trial date to October 14, 2008, because defense counsel was in trial on another case, but if Brady was representing himself, then the prosecutor was ready to proceed.
The trial court asked Brady whether he was ready to begin trial that day. Brady responded, “No, sir, I’m not. In fact, I need a 90-day continuance and pro per funds for materials, and I also need a private investigator so that I could locate any witnesses....” When asked why he waited until the trial date, Brady answered, “You told me, sir, to wait. You told me to wait on [August] 11th, not to try it pro per first. You told me to take a lawyer first and that if I didn’t agree with that, that you would allow me to go pro per then.” After reviewing the transcript from the August 11, 2008 hearing, the court reminded Brady that it had advised him that he could represent himself “unless [he] waited until the trial date.” The court asserted, “You waited until the trial date. So if you’re going to go pro per and it is appropriate, then you would be going to trial today or within the [trailing] period, which is by Friday.” There was some discussion about how the sheriff’s department would handle security if Brady were allowed to act in pro. per. because, according to the bailiff, Brady had been uncooperative with the deputies. The bailiff indicated that Brady would have the same rights as anyone else if he represented himself, but two or three deputies would be assigned to the courtroom “just to stand by.” Brady noted that he was currently in pro. per. in another case and had not posed any security problems in those proceedings.
Addressing the trial court, Brady stated that “[i]f you will allow me to go pro per, Your Honor, basically, give me the right to do the research and find out what I am up against here, and maybe get [the prosecutor] to give me an offer, something that I could handle, or perhaps maybe I could go to trial and prove to a jury that I am pretty innocent of these charges. I just would like a fair opportunity to go pro per, sir.” The court noted that Brady could “have a fair opportunity and fair trial,” but his trial would commence that day or within the trailing period. The court again asked Brady whether he wanted to proceed in pro. per. Brady answered, “How is it I can do any research today or by Friday when the Sheriff[’s] Department needs a minute order from you saying that I am pro per? Then I need funds to have phone calls. I need a detective to locate -- subpoena my witnesses. You know, I mean, to be realistic, I can’t go to trial today.”
The trial court indicated that it was inclined to allow Brady to represent himself provided that the trial began that day or within the trailing period. The prosecutor reiterated his concerns about any delay, reminding the court that the parties had attempted to set a pretrial date and Brady had refused to have any date set apart from the trial date. The court stated, “Yes, I believe the evidence supports the conclusion that Mr. Brady is attempting to postpone the trial and that’s why his delay --.” Brady interrupted the court, arguing that he could not go to trial without reviewing the case file or conducting any research. The court again asked Brady whether he wanted to represent himself, and Brady responded in the affirmative. The court advised Brady that he would have to begin trial that day or within the trailing period and asked whether he understood. Brady replied, “I understand I am being forced to not have a legal -- I am not getting a fair chance at all right here being forced to trial today. How can I possibly be ready, Your Honor? [¶] If it please the court, I want to go pro per, sir, and that’s it.”
The trial court then began to take Brady’s Faretta waiver. As part of its inquiry, the court asked Brady whether he had taken any psychiatric medications in the past and whether his mind was now clear. When Brady answered, “I would assume so,” the court noted that “[y]ou can’t assume anything.” Brady asserted, “You didn’t assume. I did, sir.” The court explained that it could not find Brady competent to represent himself without a definitive response. Brady then said, “I’m clear, sir. [¶] Seems like a bunch of threats to me, your honor, but --.” At that point, the court stated that Brady’s “last couple [of] comments and his answer to my question indicate to me he is engaging in gamesmanship with the court.” Brady tried to interrupt, but was warned that it was not his turn to speak. When Brady again interrupted, the court instructed, “Last warning. Just answer when I ask a question to you, okay?” Brady agreed to comply and the court continued to take his Faretta waiver.
Among other inquiries, the trial court asked Brady whether he was waiving his right to assistance of counsel. Brady tried to interject his answer, and the court admonished him to wait until it completed the question. The court again asked whether Brady was waiving his right to assistance of counsel. Brady answered, “Assistance of counsel? Can you explain that in detail, what that means?” In response, the court remarked that it “would be an indication to me that you are not competent to represent yourself if you do not know --.” When Brady again interrupted, the court stated, “You are interrupting me again. [¶] Your request is denied. [¶] I am making a factual finding that Mr. Brady is playing gamesmanship with the court and is not going to cooperate.” As Brady attempted to interrupt, the court advised defense counsel, “[y]ou are counsel, whether Mr. Brady wants you or not.” While the court was addressing the attorneys, Brady interjected with such comments as “Sounds fair to me” and “You got to be kidding me.” Based on defense counsel’s unavailability, the court continued the trial to October 14, 2008, as day eight of 10.
On October 15, 2008, jury selection was set to begin. Shortly before the trial court called in the jury pool, defense counsel informed the court that Brady was renewing his request to represent himself. According to defense counsel, Brady was asserting that if he were allowed to proceed in pro. per., he would call Bland, who had not appeared in court under subpoena, and attempt to settle the case. The court responded that it had “ruled on that previously,” and commenced jury selection.
On October 16, 2008, during the second day of jury selection, defense counsel advised the trial court that Brady was again insisting that he be allowed to act in pro. per. Defense counsel related Brady’s argument that he was representing himself in the probation violation proceeding without any problems and was cooperating with the court in that case. In response, the court stated, “Again, the reason is Mr. Brady lied to the court. He pretended he didn’t understand the term ‘ineffective assistance of counsel’ just to obstruct the proceedings. We could not engage in a trial where an attorney, whether it’s pro per or attorney of record -- for example, if [defense counsel] were to pretend he didn’t understand the terms I was using, the trial is disrupted. That would be contemptuous conduct by him -- just be quiet, sir.” Brady apparently tried to interrupt the court, asserting “I didn’t lie about anything.” The court went on, “And this is another example why you could not represent yourself, because you speak out of turn and you won’t stop talking when I ask you to.” Brady commented that if he had an attorney that would speak for him, he would not speak for himself. The court admonished Brady to be quiet, and then continued with jury selection.
Later that afternoon, the court advised counsel that it had learned that Brady had a verbal dispute with one of the bailiffs when the bailiff removed staples from some documents. The bailiff also reported that Brady was repeatedly turning around in court and talking to persons in the audience. Defense counsel acknowledged that he had observed some of the conduct, and agreed that Brady was becoming “volatile.” The court stated that it would be on alert, but believed that admonishing Brady at that point would probably “feed the fire.” Defense counsel indicated that he could deal with his client.
On October 20, 2008, during the second day of testimony, the trial court warned Brady outside the presence of the jury that he was not to directly address any of the witnesses. The court noted that Brady had spoken to Bland a few times while she was on the stand. The court also recounted that, at the preliminary hearing, Brady had violated an order not to make any comments to the testifying witnesses “in a rather egregious manner in front of the jury.” In response, Brady asserted, “And you lied to everybody in front of the jury.” Later that afternoon, Brady renewed his request to represent himself. The court stated that the request was “not appropriate under the court’s prior rulings.”
b. Applicable Law
A criminal defendant has a right to represent himself or herself at trial under the Sixth Amendment to the United States Constitution. (Faretta, supra, 422 U.S. at pp. 835-836.) “‘A trial court must grant a defendant’s request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial. [Citations.]’” (People v. Stanley (2006) 39 Cal.4th 913, 931-932.) An erroneous denial of a timely Faretta request is reversible per se. (People v. Butler (2009) 47 Cal.4th 814, 824.)
A defendant’s right to self-representation, however, is absolute only if he or she invokes the right within a reasonable time prior to the start of trial. (People v. Windham (1977) 19 Cal.3d 121, 127-128 (Windham) [“to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial”].) “The ‘reasonable time’ requirement is intended to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice.” (People v. Burton (1989) 48 Cal.3d 843, 852.) “‘When a motion for self-representation is not made in a timely fashion prior to trial, self-representation no longer is a matter of right but is subject to the trial court’s discretion.’ [Citation.]” (People v. Jenkins (2000) 22 Cal.4th 900, 959.) “Even when the trial court does not state it is denying a Faretta motion on the ground of untimeliness, we independently review the record to determine whether the motion would properly have been denied on this ground. [Citation.]” (People v. Halvorsen (2007) 42 Cal.4th 379, 433, fn. 15.)
When a defendant makes an untimely Faretta motion, the trial court must inquire sua sponte into the reasons behind the request. (Windham, supra, 19 Cal.3d at p. 128.) “[T]he trial court should consider factors such as ‘“the quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.”’ [Citation.]” (People v. Jenkins, supra, 22 Cal.4th at p. 959, quoting Windham, supra, at p. 128.) In reviewing the trial court’s denial of a request for self-representation, “a reviewing court must give ‘considerable weight’ to the court’s exercise of discretion and must examine the total circumstances confronting the court when the decision is made.” (People v. Howze (2001) 85 Cal.App.4th 1380, 1397-1398.)
In this case, Brady’s October 6, 2008 request to represent himself was untimely because he waited until the date that trial was set to commence to make his motion. It is well-established that when a defendant asserts the right to self-representation on the eve of trial or the day of trial, the court has discretion to deny the request. (See, e.g., People v. Valdez (2004) 32 Cal.4th 73, 102-103 [Faretta motion made moments before jury selection was set to begin was untimely and properly denied by the trial court]; People v. Clark (1992) 3 Cal.4th 41, 99-100 [Faretta motion made when trial was being continued on a day-to-day basis, in effect on the eve of trial, was subject to the trial court’s discretion as untimely]; People v. Frierson (1991) 53 Cal.3d 730, 742 [Faretta motion made on the eve of trial was untimely and its denial was within the trial court’s discretion]; People v. Rudd (1998) 63 Cal.App.4th 620, 625-626 [Faretta motion made on the Friday before a trial scheduled to begin the following Monday did not give rise to an unqualified right to self-representation].) Appellate courts also have upheld denials of Faretta motions made days before the trial date. (See, e.g., People v. Howze, supra, 85 Cal.App.4th at p. 1397 [Faretta motion made two days prior to trial was untimely]; People v. Scott (2001) 91 Cal.App.4th 1197, 1204-1205 [Faretta motion made four days before trial was set to begin was untimely]; People v. Ruiz (1983) 142 Cal.App.3d 780, 790-791 [Faretta motion made six days before the trial date was untimely].) As our Supreme Court reasoned in Windham, “a defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request. In such a case the motion for self-representation is addressed to the sound discretion of the trial court....” (Windham, supra, 19 Cal.3d at p. 128, fn. 5.) Because Brady’s request for self- representation was not made until the date that trial was scheduled to begin, the trial court had discretion in deciding whether to deny the request.
Brady argues that his October 6 Faretta request was in fact timely because he previously had asked to remain in pro. per. at the August 8 arraignment and the trial court assured him that he could renew his request later in the proceedings. Undoubtedly, Brady’s August 8 request for self-representation was timely brought, but he abandoned that request at the arraignment when he agreed to the appointment of counsel. (People v. Butler, supra, 47 Cal.4th at p. 825 [“Faretta right may be waived by... abandonment and acquiescence in representation by counsel”]; People v. Stanley, supra, 39 Cal.4th at p. 929 [defendant abandoned his asserted right of self-representation by his “subsequent acceptance of several appointed counsel to represent him”]; People v. Tena (2007) 156 Cal.App.4th 598, 609-610 [“after a defendant invokes the right to self-representation, a waiver may be found if it reasonably appears that the defendant abandoned the request”].) Although the trial court advised Brady at the arraignment that he could renew his request at a later time, the court also made clear that he would have to do so “within a reasonable time” and could not “wait until the trial date.” Brady reasons that the October 6 trial date was his first opportunity to make a Faretta motion because no court hearings were scheduled between September 8 when new counsel was appointed and October 6 when trial was set to begin. However, it was Brady who opposed the setting of any hearing dates in September. Despite the prosecution’s request for a pretrial conference to discuss defense counsel’s readiness for trial and the possibility of a continuance, Brady insisted that the case remain on calendar for an October 6 trial date.
Brady also contends that his October 6 Faretta request must be considered timely given that his appointed counsel was not ready to commence trial on that date. As Brady points out, by the time he made his October 6 motion, the parties had agreed to an eight-day continuance because defense counsel was currently in another trial and would not be available until October 14. However, the fact that appointed counsel required a short continuance due to a scheduling conflict does not explain why Brady waited until the date set for trial to reassert his right to self-representation. Moreover, in making his Faretta motion, Brady did not ask for the same eight-day continuance sought by his counsel, but instead insisted that he needed a 90-day continuance to properly prepare his case.
This case is thus distinguishable from the decisions cited by Brady. In People v. Dent (2003) 30 Cal.4th 213, 221-222, the defendant made his Faretta motion only after the trial court had announced that the trial would be continued for a considerable length of time because it was sua sponte appointing new counsel. In People v. White (1992) 9 Cal.App.4th 1062, 1073-1074, the defendant made his Faretta motion four weeks before the scheduled trial date and after the trial court expressly contemplated a continuance due to the possibility that co-defense counsel would need to be replaced.
Brady insists that, although he initially asked for a 90-day continuance with his October 6motion, he agreed to proceed to trial without a continuance on the scheduled trial date. The Attorney General, on the other hand, asserts that Brady was adamant that he would require another 90 days to prepare his defense and never announced that he was ready to start trial that day. While Brady’s statements on this point are somewhat ambiguous, it appears the trial court interpreted his assertion that he “want[ed] to go pro per, sir, and that’s it,” as a concession that Brady was willing to proceed to trial without a continuance if allowed to represent himself. Nevertheless, in deciding whether a request for self-representation is untimely, “[t]he circumstance that defendant did not seek a continuance is not determinative.” (People v. Jenkins, supra, 22 Cal.4th at p. 963 [trial court did not abuse its discretion denying Faretta motion made after the start of trial even though the defendant did not seek a continuance]; see also People v. Howze, supra, 85 Cal.App.4th at p. 1397 [trial court had discretion to deny Faretta motion unaccompanied by a request to continue when made two days prior to the trial date].)
Here, the trial court reasonably could have concluded that Brady’s last minute request to represent himself at trial was made for the purpose of delaying the proceedings. Notably, the October 6 Faretta motion followed two unsuccessful attempts by Brady to postpone the trial date, as he originally sought a 90-day continuance on August 11 and a two-month continuance on September 8. Brady’s October 6 motion also came after he refused to appear for any pretrial hearing dates in September and insisted that the case remain scheduled for an October 6 trial date. Based on the totality of the circumstances, Brady’s request to represent himself on the date set for trial was not timely brought, and was therefore subject to the sound discretion of the trial court.
Brady argues that both his October 6 and October 15 Faretta motions were timely under the federal standard articulated by the Ninth Circuit because they were made before the jury was impaneled. However, “this is not, and never has been, the law in California.” (People v. Jackson (2009) 45 Cal.4th 662, 690.) In People v. Burton, supra, 48 Cal.3d at p. 854, the California Supreme Court declined to follow the federal rule that a motion for self-representation is timely as a matter of law if made before the jury is impaneled, finding “the federal rule too rigid in circumscribing the discretion of the trial court.” The law in California remains that a trial court has the discretion to deny a request for self-representation that is not made within “a reasonable time” before trial. (People v. Jackson, supra, at p. 689; People v. Stanley, supra, 39 Cal.4th at p. 932.)
Notwithstanding the untimeliness of Brady’s October 6 Faretta request, the trial court appeared willing to grant the request without a continuance and allow Brady to represent himself at trial. However, during the taking of Brady’s Faretta waiver, the court apparently reconsidered its initial ruling based on Brady’s disruptive behavior. A trial court has discretion to deny a defendant’s Faretta motion in the first instance if it has “a reasonable basis for believing that his self-representation will create disruption.” (People v. Welch (1999) 20 Cal.4th 701, 734; see also People v. Jenkins, supra, 22 Cal.4th at p. 963 [no abuse of discretion in denying Faretta motion where defendant’s conduct “demonstrated a likelihood... that the proceedings would be disrupted”].) “‘The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.’ [Citation.]” (People v. Welch, supra, at p. 734.) Accordingly, “a trial court must undertake the task of deciding whether a defendant is and will remain so disruptive, obstreperous, disobedient, disrespectful or obstructionist in his or her actions or words as to preclude the exercise of the right to self-representation.” (Id. at p. 735.) The denial of a Faretta motion based on a defendant’s disruptive behavior “‘will not be disturbed in the absence of a strong showing of clear abuse.’” (Ibid.)
Based on the record before us, we cannot conclude that the trial court abused its discretion in denying Brady’s October 6 Faretta request. During the colloquy concerning his motion, Brady was at times uncooperative and argumentative. He interrupted the trial court several times when he disagreed with the court’s comments despite a specific admonishment that he was not to speak out of turn. At one point, Brady sarcastically accused the court of making threats against him after being told he could not be found competent to represent himself unless he provided definitive answers to the court’s questions. Contrary to Brady’s claim, these instances of disruptive behavior preceded the trial court’s decision to reconsider its initial ruling and to find that Brady was engaging in “gamesmanship” with the court. Furthermore, as our Supreme Court has cautioned, “the extent of a defendant’s disruptive behavior may not be fully evident from the cold record, and... one reason for according deference to the trial court is that it is in the best position to judge defendant’s demeanor.” (People v. Welch, supra, 20 Cal.4th at p. 735.) The trial court had ample opportunity to observe Brady’s demeanor at the October 6 hearing, and reasonably could have concluded that he would not conform his conduct to courtroom protocol and would disrupt the proceedings if he were allowed to represent himself. (See People v. Watts (2009) 173 Cal.App.4th 621, 630 [trial court properly denied Faretta motion based on “defendant’s demonstrated inability to conform his behavior to the rules of procedure and courtroom protocol”]; People v. Howze, supra, 85 Cal.App.4th at p. 1397 [trial court did not abuse its discretion in denying Faretta motion “based on its findings that the motion was manipulative and that defendant was obstreperous and created a risk of disrupting the proceedings”].)
Brady claims that the trial court did not deny his October 6 Faretta request based solely on his disruptive behavior, but also on an improper legal finding of incompetence. He relies on the trial court’s comment that if he did not understand the term “assistance of counsel,” then that would be an indication to the court that he was “not competent to represent” himself. It is true that a defendant’s lack of technical legal knowledge is not an appropriate basis for denying a Faretta motion. (See Windham, supra, 19 Cal.3d at p. 128 [“defendant’s ‘technical legal knowledge’ is irrelevant to the court’s assessment of the defendant’s knowing exercise of the right to defend himself”].) However, a review of the record reflects that the trial court did not deny Brady’s request based on a finding that he lacked legal knowledge or was incompetent to represent himself. Rather, the court’s comment about Brady’s understanding of the concept of assistance of counsel was related to its concern that Brady was feigning ignorance of the law in order to play “gamesmanship” with the court. The court found that such conduct by Brady evidenced an unwillingness to cooperate with courtroom protocol, and therefore was a basis to deny his request for self-representation.
Brady asserts that the trial court also erred in summarily denying his three subsequent Faretta requests without evaluating the factors required by Windham, supra, 19 Cal.3d 121. The Supreme Court in Windham, however, “decline[d] to mandate a rule that a trial court must, in all cases, state the reasons underlying a decision to deny a motion for self-representation which is based on nonconstitutional grounds.” (Windham, supra, at p. 129, fn. 6.) Instead, the trial court’s exercise of discretion in denying an untimely Faretta motion is properly affirmed if substantial evidence in the record supports the inference that the court had those factors in mind when it ruled. (See People v. Scott, supra, 91 Cal.App.4th at p. 1206 [“[W]hile the trial court may not have explicitly considered each of the Windham factors, there were sufficient reasons on the record to constitute an implicit consideration of these factors.”]; People v. Perez (1992) 4 Cal.App.4th 893, 904 [“While the court did not specifically make [a Windham] inquiry, we conclude there were sufficient reasons on the record for the court to exercise its discretion to deny the request.”].) As with the October 6 Faretta motion, Brady’s three subsequent requests for self-representation were subject to the discretion of the trial court because they were untimely. The record also reflects that each of the requests was denied for the same reasons as the first Faretta motion -- Brady’s lack of cooperation with the court likely would cause a delay or disruption in the proceedings if he were permitted to represent himself. In fact, in denying Brady’s October 16 Faretta request, the trial court explained on the record that Brady’s feigned ignorance of the law and frequent interruptions had led the court to find that he was purposely obstructing the proceedings. Because the trial court reasonably could have concluded that Brady’s late requests for self-representation were part of an ongoing attempt to delay or disrupt the proceedings, the court did not abuse its discretion in denying the requests.
Even assuming there was any error in the trial court’s Faretta rulings, Brady is not entitled to relief unless he can show that such error was not harmless under the standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Rivers (1993) 20 Cal.App.4th 1040, 1050 [although the trial court erred in ruling on an untimely request for self-representation, “this error is not automatically reversible, but is reviewed under the ‘harmless error’ test of Watson”]; People v. Rogers (1995) 37 Cal.App.4th 1053, 1058 [“erroneous denial of an untimely Faretta motion is reviewed under the [Watson] harmless error test”].) In considering whether it is reasonably probable that a result more favorable to Brady would have been achieved in the absence of the claimed error, we cannot ignore that a defendant who represents himself or herself rarely, if ever, could achieve a better result than competent counsel could obtain. (Faretta, supra, 422 U.S. at p. 834 [“It is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts.”]; People v. Rivers, supra, at p. 1051 [“It is candidly recognized that a defendant who represents himself virtually never improves his situation or achieves a better result than would trained counsel.”].) Here, Brady does not dispute that he was represented by competent counsel, and through his attorney’s representation, the jury acquitted Brady of one of the two counts of making criminal threats. Additionally, Brady testified on his own behalf at trial and was able to tell his side of the story to the jury. We see no reason to believe that Brady could have mounted a stronger defense by becoming his own attorney.
The evidence against Brady was also compelling. It is clear from the record that each family member who was called as a witness at trial was reluctant to testify against Brady and even attempted to assert a Fifth Amendment privilege to avoid testifying. Yet despite their lack of cooperation, these witnesses confirmed that Brady threatened and then assaulted Bland. While Bland attempted to minimize the nature of the physical assault in her testimony, she admitted at trial that Brady made a number of threatening statements to her during their altercation. Brady’s children recounted at trial that Brady repeatedly hit, kicked and punched their mother and also threatened to kill her. The jury heard a recording of Bland’s detailed interview with the police one day after the incident in which she described Brady’s threatening and assaultive conduct. The jury also heard the investigating officers’ testimony of their interviews with Carter and the children which corroborated Bland’s initial account of the altercation. In light of this evidence, any error in denying Brady’s requests for self-representation was clearly harmless.
II. Consecutive Sentence on the Criminal Threats Count
On appeal, Brady also challenges the trial court’s imposition of a consecutive sentence on the criminal threats conviction. Specifically, he argues that the trial court should have stayed the sentence on the criminal threats count under section 654 because the threats were based upon the same course of conduct as the corporal injury and were committed with the same intent. Brady also asserts that the evidence was insufficient to support the trial court’s finding that there was a passage of time between the two acts. We conclude, however, that the trial court did not err in imposing consecutive sentences.
Section 654 provides that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).) The statute thus prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Whether a course of conduct constitutes a single act within the meaning of section 654 depends upon the “intent and objective” of the actor. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) If all of the offenses were incidental to, or were the means of accomplishing or facilitating one objective, the defendant may receive only one punishment. (Ibid.) If, on the other hand, the defendant is found to have harbored separate and multiple criminal objectives, he or she may be punished for each offense even though the crimes shared common acts or were part of an otherwise indivisible course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639.)
The question of whether the defendant harbored a “single intent” for purposes of section 654 is a factual determination to be made by the sentencing court. (People v. Harrison (1989) 48 Cal.3d 321, 335.) On appeal, we must sustain the trial court’s factual determinations if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730.) Substantial evidence 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.’ [Citation.]” (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) A judgment will not be reversed for insufficient evidence unless “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
In this case, there was substantial evidence to support the trial court’s implied finding that the criminal threats count was a separate and distinct offense from the corporal injury count. In her interviews with the police, Bland indicated that Brady first threatened to harm her as she was hiding in the bathroom of Carter’s home. While Bland was in the bathroom, Brady warned her that she “better come outside” and would be “getting [her] ass kicked.” Brady also threatened to beat Bland “so bad” that she would be “damn near dead” and on her “last breath” before anyone found her. Bland eventually fled the bathroom and ran into the living room followed by Brady. Once in the living room, Brady again demanded that Bland go outside with him because he did not want to “disrespect” his mother’s house. When Bland refused, Brady began his physical assault, punching Bland in the face and then repeatedly kicking her after she fell to the ground.
Under these circumstances, the trial court reasonably could have concluded that Brady had more than one criminal objective when he verbally threatened and then physically assaulted Bland. By threatening to beat Bland while she was hiding in the bathroom, Brady evinced an intent to so intimidate and frighten Bland that she would follow his orders to go outside with him. By subsequently assaulting Bland after she ran into the living room and refused to leave the house, Brady evinced a separate intent to physically harm her. (See People v. Solis (2001) 90 Cal.App.4th 1002, 1022 [trial court did not violate section 654 in imposing separate sentences on arson and criminal threats counts because “in making the terrorist threats, the defendant intended to frighten whereas in committing arson... the defendant intended to burn”].) Because the evidence was sufficient to support a conclusion that Brady committed multiple divisible acts with distinct objectives, the trial court did not violate section 654 in imposing separate sentences on the criminal threats and corporal injury convictions.
Brady contends that even if separate sentences were permissible under section 654, the trial court abused its discretion when it imposed a consecutive sentence on the criminal threats count based on an erroneous finding of fact. In support of this claim, Brady points to the trial court’s comment at the sentencing hearing that there was a “passage of time” between the criminal threats and the corporal injury. However, based on the evidence presented at trial, the trial court reasonably could have concluded that there was some separation in time and place between the two crimes. As discussed, Brady repeatedly threatened Bland while she was in the bathroom. At some point, Bland fled the bathroom and ran into the living room. When Bland still refused to comply with Brady’s orders to leave the house with him, Brady proceeded to physically assault her. The evidence therefore supports that during the time that Bland remained in the bathroom, Brady had time to reflect on his actions and to decide whether or not to pursue his threats to physically assault her. A defendant should not be rewarded with a concurrent sentence “‘where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his... assaultive behavior.’” (People v. Trotter (1992) 7 Cal.App.4th 363, 368.) The trial court did not abuse its discretion in imposing consecutive sentences on the corporal injury and criminal threats convictions.
III. Sentencing Fees and Fines
The Attorney General asserts that the trial court erred in imposing only one $20 court security fee under section 1465.8 even though Brady suffered two convictions. We agree. Section 1465.8 provides that a court security fee shall be imposed “on every conviction for a criminal offense.” (§ 1465.8, subd. (a)(1); see also People v. Schoeb (2005) 132 Cal.App.4th 861, 865 [“section 1465.8 unambiguously requires a fee to be imposed for each of defendant’s convictions”].) Because Brady was convicted of two offenses, he should have had two $20 court security fees imposed. The abstract of judgment must be modified accordingly.
The Attorney General also correctly notes that, at the sentencing hearing, Brady was ordered to pay a $200 restitution fine pursuant to section 1202.4 and a $200 parole revocation fine pursuant to section 1202.45. The parole revocation fine was stayed pending the successful completion of parole. However, the abstract of judgment failed to reflect these two fines and must also be modified accordingly.
DISPOSITION
The judgment is modified to reflect a court security fee of $20 for each of Brady’s two convictions for a total of $40, a restitution fine of $200, and a stayed parole revocation fine of $200. As so modified, the judgment is affirmed. The clerk of the court is directed to prepare a corrected abstract of judgment, and to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: PERLUSS, P. J. JACKSON, J.