Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA265742, Amy D. Hogue, Judge. Affirmed.
Richard M. Doctoroff, 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, Assistant Attorney General, Lance E. Winters and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Bert Morgan appeals the judgment (order granting probation) entered following his conviction by jury of possession of a controlled substance and possession of a smoking device, a misdemeanor. (Health & Saf. Code, §§ 11350, 11364.) We reject Morgan’s claim the trial court erroneously permitted Morgan to represent himself and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
1. The underlying offense.
On May 25, 2004, at approximately 1:10 a.m, Los Angeles Police Officer Luis Mota observed Morgan preparing to smoke rock cocaine in a glass pipe in an area of Hollywood known for narcotics abuse. As Mota approached Morgan on foot, Morgan placed the pipe in his pocket and dropped a rock of cocaine with a net weight of 0.03 grams to the ground. During booking, Mota saw a rock of cocaine with a net weight of 0.13 grams fall from Morgan’s shoe.
2. Morgan’s request for self representation.
At Morgan’s first court appearance in this matter on May 27, 2004, Morgan asked to represent himself. The trial court advised Morgan such a choice is almost always unwise and noted Morgan would be opposed by a trained prosecutor. The trial court indicated Morgan would not receive preferential treatment because he was representing himself and, if Morgan failed to follow the rules of procedure, any evidence Morgan had at his disposal might be excluded. The trial court also noted Morgan presently was in a wheelchair and thus would face limitations in addition to those that normally accompany self-representation. Further, Morgan could not seek reversal on appeal because he did not effectively represent himself. The trial court indicated it would appoint an attorney to represent Morgan or the matter could be continued to permit Morgan to hire an attorney. The trial court concluded by stating its belief a lawyer would be helpful to Morgan and suggested that Morgan speak with the public defender.
Morgan responded, “That’s what I’m saying, your Honor. If you could give me another attorney, I would get one. He’s not – when I first met this attorney – like he’s not here now – we had a problem.” The trial court then asked another attorney, Mr. Hentell, to speak to Morgan. The trial court indicated it intended no disrespect to the public defender but observed Mr. Hentell had “an amenable style.”
When the trial court again called Morgan’s case, the trial court indicated Morgan had completed a Faretta waiver form. (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562].) The trial court found Morgan voluntarily and intelligently had chosen to represent himself and that Morgan knowingly, intelligently, understandingly and explicitly had waived the right to counsel.
3. Pre-trial procedures.
Morgan represented himself at the preliminary hearing conducted on June 11, 2004, and thereafter filed a motion to suppress evidence, which was heard on August 4, 2004. Before the trial court addressed the merits of Morgan’s motion to suppress, Arlene Binder, standby counsel appointed by the trial court to assist Morgan in the event he chose to relinquish pro per status, confirmed that Morgan had “chosen to be pro per.”
The trial court then reviewed the record relative to Morgan’s exercise of the right of self-representation and noted Morgan had completed a Faretta waiver form and that Morgan had been admonished about the dangers of self representation. However, Morgan’s motion to suppress evidence was so lacking in merit that Morgan’s ability to represent himself had to be viewed as suspect. The trial court stated: “Your arguments are so far removed from the reality of a trial, of a prosecution that I believe that as a lawyer representing yourself, you might have some question of your client’s ability to cooperate in the prosecution or defense of your case.”
The trial court asked Morgan if he would not prefer to have Binder represent him, explaining Binder was an experienced and capable attorney. Morgan responded that, based on what he had learned during the time he had been representing himself, he believed the amount of evidence recovered in the case was insufficient to support a conviction. Morgan indicated it was his duty to represent himself “in order to prove that this is a fabrication and a direct violation of my civil rights.” The trial court asked if Morgan meant to say that he believed he had to represent himself and did not want an attorney. Morgan responded, “Of course, sir.” Morgan thereafter proceeded to argue his motion to suppress evidence.
4. Trial and subsequent proceedings.
Morgan represented himself at jury trial. Morgan defended on the grounds that the 0.13 grams of cocaine found during booking had not been shown to belong to him and the 0.03 grams of cocaine recovered in the field did not constitute a useable quantity. Morgan cross-examined Mota, the arresting officer, about the arrest and about statements Mota made at the time of the arrest. Morgan also attempted to impeach Mota with Mota’s preliminary hearing testimony. Further, Morgan cross-examined the criminalist with respect to the weight of the item recovered in the field, suggesting it was not a usable quantity.
After he was convicted, Morgan relinquished pro per status and was represented in post-trial proceedings by Binder.
CONTENTIONS
Morgan contends the trial court failed to follow the procedures required by Marsden (People v. Marsden (1970) 2 Cal.3d 118) and Faretta in failing to appoint substitute counsel and in allowing Morgan to represent himself.
DISCUSSION
1. The trial court committed no Marsden error.
Morgan contends the trial court erred in failing to conduct a Marsden hearing. Morgan asserts the primary reason Morgan insisted on self-representation was because he was not provided a lawyer with whom he had a positive relationship. Morgan notes that, at the outset of the hearing at which he requested self-representation, he told the trial court he “had a problem” with appointed counsel. Although the trial court suggested Morgan consult with another attorney, it failed to conduct an inquiry into the nature of Morgan’s complaints with appointed counsel. Morgan claims that because the trial court permitted Morgan to represent himself without first conducting a Marsden inquiry, the order granting Morgan’s Faretta request was fatally flawed. (People v. Hill (1983) 148 Cal.App.3d 744, 755.)
Morgan’s argument is not persuasive. Under Marsden, when a defendant in some manner moves for substitution of appointed counsel, the trial court has a duty to inquire as to the reasons for the defendant’s dissatisfaction with counsel. (People v. Lucky (1988) 45 Cal.3d 259, 281; People v. Marsden, supra, 2 Cal.3d at p. 124.) If the record shows appointed counsel is not providing adequate representation or that the defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result, the defendant is entitled to relief. (People v. Smith (2003) 30 Cal.4th 581, 604.)
However, the trial court has a duty to inquire into the defendant’s claim “only when the defendant asserts directly or by implication that his counsel’s performance has been so inadequate as to deny him his constitutional right to effective counsel.” (People v. Molina (1977) 74 Cal.App.3d 544, 549.) “The mere fact that there appears to be a difference of opinion between a defendant and his attorney over trial tactics does not place a court under a duty to hold a Marsdenhearing.” (People v. Lucky, supra, 45 Cal.3d at p. 281.)
Here, Morgan did not seek substitution of counsel. Rather, Morgan unequivocally requested self-representation. Moreover, the record reflects the trial court was willing to appoint substitute counsel to represent Morgan even without a showing by Morgan that there had been a break-down in the relationship between Morgan and the first appointed attorney. The trial court asked a second attorney who was not a member of the public defender’s office to speak to Morgan, apparently anticipating the second attorney might have better rapport with Morgan. However, even after consulting with the second attorney, Morgan continued to insist on his rights under Faretta. Under these circumstances, the trial court was not required to conduct a Marsden hearing.
Morgan’s reliance on Hill is misplaced. In Hill, the defendant specifically requested substitution of counsel and, after the trial court denied the request based on an off-the-record discussion with the various defense attorneys with whom the defendant had consulted, the defendant requested self representation only because the trial court refused to appoint substitute counsel. No similar state of affairs obtained here. Consequently, Morgan fails to demonstrate Marsden error.
2. The trial court properly granted Morgan’s request for self-representation.
Morgan contends the Faretta waiver form he signed was defective in that Morgan failed to mark either yes or no in the boxes that followed questions 5, 6, and 7, which asked if Morgan knew the elements of the charged offense, whether the charged offense required a specific intent and what legal defenses Morgan might interpose. Further, the trial court failed to advise Morgan he faced penal consequences that included a prison term of three years and six months and the trial court did not inquire of Morgan to determine if he knew the elements of the charged offense. Morgan asserts the error is reversible per se and, even if prejudice is required, the trial court’s remarks regarding the quality of Morgan’s motion to suppress evidence and Morgan’s failure to offer any defense at trial demonstrate that Morgan was incompetent to represent himself.
Morgan’s claim under Faretta fares no better than his Marsden claim.
“ ‘When confronted with a request’ for self-representation, ‘a trial court must make the defendant “aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” [Citation.] . . . [Citation.]’ ” (People v. Stanley (2006) 39 Cal.4th 913, 932.) “No particular form of words, however, is required in admonishing a defendant who seeks to forgo the right to counsel and engage in self-representation. ‘ “The test of a valid waiver of counsel is . . . whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.” ’ [Citations.]” (People v. Lawley (2002) 27 Cal.4th 102, 140.) Even when the trial court has failed to conduct a full and complete inquiry regarding a defendant’s assertion of the right of self-representation, on appeal we examine the entire record to determine whether the invocation of the right of self-representation and waiver of the right to counsel was knowing and voluntary. (People v. Stanley, supra, 39 Cal.4th at p. 932; People v. Koontz (2002) 27 Cal.4th 1041, 1070; People v. Marshall (1997) 15 Cal.4th 1, 24.) “ The burden is on the defendant to demonstrate he did not knowingly and intelligently waive his right to counsel.” (People v. McArthur (1992) 11 Cal.App.4th 619, 627.)
In this case, the trial court repeatedly advised Morgan of the dangers and disadvantages of self-representation. The trial court advised Morgan that self-representation is almost always unwise and Morgan would be opposed by an experienced prosecutor with training and education that was superior to Morgan’s. Further, the trial court advised Morgan he would not receive preferential treatment because he was acting in propria persona and if Morgan conducted his own defense ineffectively, Morgan could not appeal his conviction on the grounds of ineffective assistance of counsel. These admonitions parallel those suggested in cases addressing Faretta waivers. (See, e.g., People v. Sullivan (2007) 151 Cal.App.4th 524, 545-546; People v. Phillips (2006) 135 Cal.App.4th 422, 428.)
Notwithstanding these admonitions, Morgan insisted on exercising his rights under Faretta. Although Morgan did not check the boxes on the waiver form that would have reflected Morgan knew the nature of the charge, whether it was a general or specific intent crime, the facts that had to be proved before he could be convicted or the legal defenses to the crime charged, nonetheless, Morgan wrote on the form that he understood he was charged with a violation of Health and Safety Code section 11350, indicated he was 55 years of age, had graduated from high school, had attended CSUN and had represented himself on at least one previous occasion which had resulted in a not guilty finding. Based on these representations, the trial court properly could conclude Morgan was entitled to exercise his Sixth Amendment right of self-representation. (See People v. Mosby (2004) 33 Cal.4th 353, 365.)
Regarding the trial court’s asserted failure to advise Morgan of the penal consequences of conviction, we note Morgan was charged in this case with simple possession of a controlled substance, a felony, and possession of a smoking device, a misdemeanor. The penal consequences of these offenses, although serious, are not unusual or difficult to understand. Indeed, the felony offense of possession of a controlled substance subjected Morgan to the de facto range of prison terms for all felony offenses, 16 months, 2 years or 3 years, and the misdemeanor charge subjected Morgan to the standard jail term for a misdemeanor of 6 months. (See Pen. Code, §§ 17, 18.)
Regarding Morgan’s knowledge of the defenses available, when the trial court attempted to dissuade Morgan from appearing in propria persona prior to trial, Morgan indicated he felt compelled to represent himself to present his defense that the amount of contraband involved in this case was insufficient to establish the offense charged. This remark indicates Morgan was aware of the possible defenses to the offense.
With respect to Morgan’s assertion his failure to offer an affirmative defense demonstrates his incompetence to act as his own attorney, it is well settled that a defendant who appears in propria persona may not thereafter complain about the quality of the legal representation the defendant provided. (Faretta v. California, supra, 422 U.S. at p. 843, fn. 46.) In any event, Morgan vigorously defended the case on the theory the 0.13 grams of cocaine that allegedly fell from his shoe during booking had not been shown to belong to him and the 0.03 grams of cocaine recovered in the field did not constitute a useable quantity. The trial court’s denigration of the merits of Morgan’s motion to suppress evidence do not convince us that Morgan was incompetent to represent himself. Even when motions to suppress are filed by counsel, they are frequently bereft of merit. Rather, it appears the trial court’s comments were designed to persuade Morgan to relinquish pro per status and accept the assistance of standby counsel.
In sum, upon review of the entire record, we confidently conclude Morgan’s waiver of the right to counsel was voluntary and intelligent under the totality of the circumstances. (Faretta v. California, supra, 422 U.S. at p. 835.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., ALDRICH, J.