Opinion
B294146
03-02-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT LOPEZ, Defendant and Appellant.
Moaddel Law Firm, Daniel Moaddel; Jeff Lewis Law, Jeffrey Lewis, Sean C. Rotstan, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Roberta L. Davis, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. PA088488) APPEAL from an order of the Superior Court of Los Angeles County, Cynthia L. Ulfig, Judge. Affirmed. Moaddel Law Firm, Daniel Moaddel; Jeff Lewis Law, Jeffrey Lewis, Sean C. Rotstan, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Roberta L. Davis, Deputy Attorney General, for Plaintiff and Respondent.
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The jury found defendant and appellant Robert Lopez guilty of four counts of identifying information theft with a prior conviction (§ 530.5, subd. (c)(2) [counts 2-3, 7-8]); second degree robbery (§ 211 [count 4]); grand theft of personal property (§ 487, subd. (a) [count 5]); first degree residential burglary (§ 459 [count 6]); two counts of driving or taking a vehicle without consent after a prior conviction (Veh. Code, § 10851 [counts 9, 12]); fleeing a pursuing peace officer's motor vehicle while driving recklessly (Veh. Code, § 2800.2 [count 10]); multiple identifying information theft (§ 530.5, subd. (c)(3) [count 11]); felony evading without injury (Veh. Code, § 2800.2) [count 13]); and three counts of misdemeanor hit and run driving resulting in property damage (Veh. Code, § 20002, subd. (a) [counts 14-16]). The jury found true the allegation that counts 2 through 13 were gang-related (§ 186.22, subds. (b)(1)(A), (b)(1)(C)).
All further statutory references are to the Penal Code unless otherwise indicated.
The jury was unable to reach a verdict as to count 1, first degree burglary with a person present (§ 459). The court declared a mistrial as to count 1, and it was dismissed.
In a bifurcated trial, the trial court found true the allegations that, as to counts 2-13, Lopez had served five prior prison convictions that resulted in three prior prison terms within the meaning of section 667.5, subdivision (b).
Lopez was sentenced to a total of 37 years in state prison. In count 4, the trial court imposed the upper term of 5 years, plus 10 years for the gang enhancement. In counts 2, 3, 7, 8, 10, and 11, the court imposed terms of eight months each, plus one year each for the attached gang enhancements (one-third the middle term). In count 6, the court imposed a term of 16 months, plus 20 months for the gang enhancement (one-third the middle term). In counts 9, 12, and 13, the court imposed terms of one year each, plus one year each for the related gang enhancements. Lopez was sentenced to one year each for the three prior prison term enhancements. The trial court imposed and stayed a term of one year eight months in count 5 pursuant to section 654. In counts 14 through 16, it imposed concurrent terms of 180 days in county jail.
On appeal, Lopez contends that the trial court abused its discretion by denying his motion to represent himself, and that the court operations and conviction assessments, restitution and probation revocation fines, and direct victim restitution imposed must be reversed or their execution stayed because the court made no assessment of his ability to pay them.
DISCUSSION
Motion for Self-Representation
Lopez argues that the trial court abused its discretion by denying his motion to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta) by focusing on the potential for delay to the exclusion of other factors. The contention lacks merit.
Legal Principles
"In Faretta, supra, 422 U.S. 806, the United States Supreme Court held that the Sixth Amendment to the United States Constitution gives criminal defendants the right to represent themselves. Following Faretta, in People v. Windham (1977) 19 Cal.3d 121 (Windham), [our Supreme Court] considered questions concerning the timing of a defendant's self-representation request. [The court] held that 'in order 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.' (Id. at pp. 127-128.) Otherwise, 'once a defendant has chosen to proceed to trial represented by counsel, demands by such defendant that he be permitted to discharge his attorney and assume the defense himself shall be addressed to the sound discretion of the court.' (Id. at p. 128; accord, e.g., People v. Bradford (1997) 15 Cal.4th 1229, 1365 ['[A]lthough in a criminal trial a defendant has a federal constitutional, unconditional right of self-representation, in order to invoke that right, he or she must make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial.'].)
"[Our Supreme Court has] held that 'timeliness for purposes of Faretta is based not on a fixed and arbitrary point in time, but upon consideration of the totality of the circumstances that exist in the case at the time the self-representation motion is made. An analysis based on these considerations is in accord with the purpose of the timeliness requirement, which is "to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice."' (People v. Lynch [(2010)] 50 Cal.4th [693,] 724.) In exercising its discretion to grant or deny an untimely self-representation request, [the Supreme Court has] held the trial court should consider, among other factors, '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.' (Windham, supra, 19 Cal.3d at p. 128.) When a court denies an untimely request, its ruling is reviewed for abuse of discretion. (See People v. Valdez (2004) 32 Cal.4th 73, 103.)" (People v. Buenrostro (2018) 6 Cal.5th 367, 425-426, fn. omitted.)
Our Supreme Court has "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, 19 Cal.3d at p. 129, fn. 6.) Where a trial court has not explicitly considered all of the Windham factors, the record may be sufficient to demonstrate an implicit consideration of the factors. (People v. Scott (2001) 91 Cal.App.4th 1197, 1206.)
Proceedings
At the preliminary hearing on October 24, 2017, Lopez was represented by an appointed bar panel attorney, Frank Bazadier. The court asked if Lopez was ready to proceed, and Bazadier responded that Lopez wished to represent himself because he was unhappy with Bazadier's "communication with him." The trial court noted that it was the last day for preliminary hearing by statute, and that the People had announced ready. The court stated that it would entertain the request and asked if Lopez was ready to proceed. Lopez replied that he was not ready, and requested a continuance of four to six weeks. The prosecutor opposed the continuance, noting that the People had eight witnesses present. The court denied Lopez's Faretta motion without prejudice, on the grounds that it was the last day for preliminary hearing, the prosecution's witnesses were present, and Lopez was not ready to proceed.
During the preliminary hearing, Lopez moved to have counsel removed under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The court heard the motion and denied it.
On January 17, 2018, the trial court heard and granted Lopez's motion to substitute counsel. Private counsel filed for appointment of counsel or conflict of interest on July 24, 2018. The trial court denied the motion on July 26, 2018, and re-appointed bar panel attorney Bazadier.
The court set a final readiness conference for September 28, 2018, and set jury selection for October 1, 2018.
On September 19, 2018, Lopez again moved to have Bazadier removed as counsel. The court heard and denied his Marsden motion.
On September 21, 2018, the parties announced ready for trial. Lopez made another Marsden motion, which the trial court heard and denied.
On October 1, 2018, the day that jury selection was to commence, Lopez moved to represent himself. The court responded:
"No. That's denied, sir. The People have -- I don't even know how many witnesses, huge witness list. I've got 62 jurors waiting downstairs. This is a case from January of -- actually, March of 2017 you were arraigned. Mr. Bazadier had announced ready. You were here with him when he announced ready . . . so your request is not timely."
The trial court asked if Lopez could proceed that day if the Faretta motion was granted. Lopez said that he could not.
The court reiterated that the request was untimely, and noted that although Lopez had been in her courtroom for almost a year, he had never requested to represent himself before. His private counsel had been relieved in July. Both sides had announced ready to proceed, witnesses were available, and the jurors were on their way to the courtroom.
The trial court had not presided over Lopez's preliminary hearing.
Analysis
Lopez does not dispute that the trial court had discretion to deny his Faretta motion as untimely; he argues instead that the court abused its discretion by failing to ask him why he was requesting to represent himself and inquire specifically regarding the quality of counsel's representation. We conclude that, taken together, the trial court's ruling and the record sufficiently demonstrate that the trial court properly considered the Windham factors.
First, it is clear from the Marsden motions heard in this case, that the trial court was aware of Lopez's concerns regarding counsel's representation. In the September 19, 2018 Marsden hearing, Lopez complained that counsel had not conveyed a plea deal to him. The record demonstrated that the deal was presented to Lopez and he refused it. In the September 21, 2018 Marsden hearing, Lopez complained that counsel had only visited him a few times, and although he was a "good guy," Lopez was not comfortable "going to trial" with him. He was also still uncomfortable about the situation with the plea deal. The trial court advised Lopez that, regardless of how many times he had visited, counsel had been working hard on his behalf, and the trial court was satisfied with the quality of his representation.
Second, Lopez's problems with counsel were either unsupported by the record or were related to his decision to devote less time visiting with Lopez than Lopez would have liked, which is not a sufficient reason to grant an untimely Faretta request. (See People v. Wilkins (1990) 225 Cal.App.3d 299, 309, fn. 4 [disagreement with counsel's trial tactics insufficient reason to grant untimely Faretta motion].)
Third, Lopez made the motion on the day trial was to commence. He had been arraigned a year and a half before. He made two Marsden motions in the 10 days prior to trial, and had not requested to represent himself on either occasion.
Finally, when Lopez requested to represent himself at the time of the preliminary hearing, he asked for a continuance of four to six weeks to prepare. He would presumably need a similar amount of time to prepare for the trial, which involved 16 charged offenses, expert testimony, and many witnesses. The parties had announced ready for trial, the prosecution had multiple witnesses ready, and the jurors were ready and waiting for selection. The disruption that would flow from granting the Faretta motion would be significant.
The trial court did not abuse its discretion in denying Lopez's motion to represent himself as untimely. Assessments , Fines , and Direct Victim Restitution
In light of our ruling that the trial court did not abuse its discretion in denying Lopez's Faretta motion, we do not address respondent's alternative argument that any error in denying the motion was harmless under the applicable test set forth in People v. Watson (1956) 46 Cal.2d 818. (People v. Rogers (1995) 37 Cal.App.4th 1053, 1058 [applying Watson harmless error standard to erroneous denial of an untimely Faretta motion].) We note, however, that Lopez advances no arguments to meet his burden that it was reasonably probable he would have achieved a more favorable result absent the alleged error.
The trial court imposed court operations assessments in the amount of $600 (§ 1465.8), conviction assessments in the amount of $450 (Gov. Code, § 70373), a restitution fine of $300 (§ 1202.4, subd. (b)) with a corresponding suspended parole revocation fine of $300 (§ 1202.45), and direct victim restitution in the amount of $3117 (§ 1202.4, subd. (f)).
Relying on the recent opinion in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Lopez argues imposition of the court operations and conviction assessments, and restitution and probation revocation fines, was unconstitutional because the trial court did not consider his ability to pay the financial obligations. Our Supreme Court has granted review to decide whether, as Dueñas holds, a court must consider a defendant's ability to pay before imposing or executing fines, fees, and assessments. (People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.) Even if the Supreme Court concludes consideration of ability to pay is required, that would not warrant reversal for Dueñas reasons here. Any error by the trial court in failing to consider, sua sponte, Lopez's ability to pay the fines and assessments is harmless in light of the long custodial sentence imposed. (People v. Johnson (2019) 35 Cal.App.5th 134, 139-140; People v. Jones (2019) 36 Cal.App.5th 1028, 1035.)
Lopez further argues that the imposition of direct victim restitution is unconstitutional pursuant to Dueñas, supra, 30 Cal.App.5th 1157. Even if Dueñas was correctly decided, the opinion did not address direct victim compensation imposed under section 1202.4, subdivision (f). There are significant differences between the purposes behind the assessments and restitution fine at issue in Dueñas and direct victim restitution. The assessments raise funds for the court, and the restitution fine paid to the state is intended to be punitive. (Id. at p. 1169.) In contrast, direct victim restitution compensates victims for economic losses they have suffered because of the defendant's crime. (Ibid.) Victims have a right to restitution under the California constitution. (Cal. Const., art. I, § 28, subd. (b)(13)(A).) In light of the competing constitutional interests of innocent victims, appellate courts have declined to extend its application to victim restitution. (People v. Evans (2019) 39 Cal.App.5th 771; People v. Allen (2019) 41 Cal.App.5th 312.) We share our sister courts' view that Dueñas is inapplicable to victim restitution.
DISPOSITION
The trial court's judgment is affirmed.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.