Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA346602 Fred Wapner, Judge.
Rita Swenor, 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, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
After engaging in a drug transaction, defendant Roberto Rodriquez was convicted of selling cocaine base. On appeal, defendant contends the trial court committed reversible error by denying as untimely his request to represent himself (Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562]). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Charges
Defendant was charged on October 17, 2008, with one count of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)), with two prior drug-related convictions (Health & Saf. Code, § 11370.2, subd. (a)). The information also specially alleged defendant was subject to sentencing under the “Three Strikes” law for two prior serious or violent felony convictions for robbery (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), and he had served four separate prison terms for felonies (Pen. Code, § 667.5, subd. (b)). Defendant, represented by appointed counsel, Arthur Lindars, pleaded not guilty and denied the special allegations.
B. The Denial of Defendant’s Request for Self-Representation
On December 17, 2008, the trial court heard and denied defendant’s motion for pretrial discovery of police personnel records (Pitchess v. Superior Court (1974) 11 Cal.3d 531) and set a trial date of January 12, 2009. Defendant expressed a desire to replace appointed counsel, and the court agreed to hear his Marsden motion (People v. Marsden (1970) 2 Cal.3d 118) the following day. After the December 18, 2008 hearing on the Marsden motion, the court relieved attorney Lindars as counsel of record, “not pursuant to the Marsden motion, but pursuant to [attorney Lindars] stating that there is an attorney/client conflict.” The court appointed attorney Betsy Mogul to represent defendant, vacated the January 12, 2009 trial date, and scheduled a pretrial conference for February 5, 2009.
We are quoting the minute order; the transcript of the December 18, 2008 Marsden hearing is not part of the record on appeal.
At the February 5, 2009 pretrial conference, attorney Mogul indicated she might file another Pitchess motion, which the trial court agreed to hear at the next pretrial conference on March 3, 2009. On that date, the pretrial conference was continued to April 6, 2009, when the court heard and denied the second Pitchess motion. Trial was set for April 15, 2009.
The parties appeared in court on April 15, 2009, and the trial was continued to May 27, 2009. On that date, the parties appeared in court and trial was continued to June 1, 2009.
The record on appeal does not contain a transcript or otherwise reflect either the party requesting the continuances or why they were granted.
On Friday, June 1, 2009, attorney Mogul informed the trial court that defendant wanted new appointed counsel. The court properly conducted a Marsden hearing. Near the conclusion of the hearing, the court inquired of defendant, “Okay, Mr. Rodriguez, I’ve heard you – well, is there anything else you want to tell me?” Defendant replied, “Then I don’t want an attorney. I want to defend my own case. I want to go pro per.” Thereafter, the court denied the Marsden motion, but told defendant his request to represent himself would be considered in open court, once proceedings resumed.
The remainder of the hearing was conducted in the presence of the prosecutor. After the prosecutor and attorney Mogul answered ready for trial, the court asked defendant, “[I]f I let you represent yourself, you’re going to be ready to start selecting a jury three days from now [Monday, June 4, 2009]?” Defendant replied, “No;” and the court stated, “Then your request to represent yourself is untimely, and it is denied; and the matter’s [sic] transferred to Department 100 for trial as eight of ten on June the 4th....” On Monday, June 4, 2009, the case was transferred from Department 100 to a new department for trial, and jury selection commenced.
C. Summary of Trial Evidence
According to the prosecution evidence, on the afternoon of September 17, 2008, undercover narcotics officers were parked in a van, monitoring narcotics activity at an intersection in Los Angeles. The officers saw defendant standing on the sidewalk, about 70 feet away. Defendant was approached by several men, with whom he conversed briefly, before waving them away. A woman, later identified as Yvonne Defoyer (Defoyer), came up and spoke with defendant. Defendant produced a plastic baggie, which contained several off-white solid objects resembling rock cocaine. He removed some of the objects and handed them to Defoyer. She looked at the objects before putting them in her pants pocket and walked away. Officers detained Defoyer and recovered several off-white solid objects from her pants pocket, which were later determined to be a usable quantity of cocaine base. Defendant was arrested and searched. A wallet found in defendant’s pants pocket contained $20.
Defoyer, a codefendant, was also referred to as Yvonne Tafoya at trial. She is not a party to this appeal.
Defendant neither testified nor presented other evidence in his defense.
D. Verdict and Sentencing
The jury convicted defendant of selling cocaine base.
In a bifurcated proceeding, the prosecutor elected to proceed only on one of the prior strike allegations. Following a bench trial, the trial court found true the two prior drug-related conviction allegations (Health and Saf. Code, § 11370.2, subd. (a)), the remaining prior strike allegation and two of the prior prison term allegations.
Attorney Mogul moved to dismiss defendant’s remaining prior strike allegation (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), which the trial court granted. The court then sentenced defendant to an aggregate state prison term of eight years, consisting of the upper term of five years for selling cocaine base, enhanced by three years for the prior drug-related conviction. The court dismissed the remaining special allegations for purposes of sentencing in the interests of justice.
DISCUSSION
Defendant contends the trial court violated his Sixth Amendment right to self-representation by summarily denying his Faretta motion as untimely, without evaluating the factors required under People v. Windham (1977) 19 Cal.3d 121, 128.
A. Absolute Right to Self-Representation for Timely Request
A right to self-representation is implied in the Sixth Amendment to the United States Constitution. (Faretta v. California, supra, 422 U.S. at p. 819.) The right to counsel guarantees a defendant the assistance of counsel if the defendant wants it. It does not require a defendant to use an attorney. “[I]n 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.” (People v. Windham, supra, 19 Cal.3d at pp. 127-128, fn. omitted.) This right is absolute and unconditional if the motion is timely made and if the defendant is competent to waive counsel. (People v. Valdez (2004) 32 Cal.4th 73, 97-98.)
B. Discretion to Grant Self-Representation for Untimely Request
A defendant’s right to self-representation, however, is absolute only if he or she invokes that constitutional right a reasonable time prior to the start of trial. (People v. Windham, supra, 19 Cal.3d at pp. 127-128, fn. omitted [“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”]; accord, People v. Lynch (2010) 50 Cal.4th 693, 722.) 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, supra, 32 Cal.4th at pp. 102-103 [Faretta motion made moments before jury selection was set to begin was untimely and properly denied by the trial court]; People v. Horton (1995) 11 Cal.4th 1068, 1110 [Faretta motion made on date set for trial was untimely]; 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. Scott (2001) 91 Cal.App.4th 1197, 1204-1205 [Faretta motion made four days before trial was set to begin was untimely]; People v. Howze (2001) 85 Cal.App.4th 1380, 1397 [Faretta motion made two days prior to trial was untimely]; 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].)
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....” (People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5.)
C. Defendant’s Faretta Motion was Untimely
Defendant’s Faretta motion was untimely as it was made on the eve of trial. As a result, the trial court had discretion in deciding whether or not to grant the motion. However, given the importance of the right to self-representation, the trial court may not simply deny an untimely motion for self-representation. Rather, “trial courts confronted with nonconstitutionally based motions for self-representation [must] inquire sua sponte into the reasons behind the request” (People v. Windham, supra, 19 Cal.3d at p. 129, fn. 6) and exercise their sound discretion after considering several factors, including “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.” (Id. at p. 128; see People v. Wilkins (1990) 225 Cal.App.3d 299, 303 [grant or denial of request made on the eve of trial “is within the sound discretion of the trial court after it has inquired sua sponte into the specific factors underlying the request”]; see generally People v. Burton (1989) 48 Cal.3d 843, 852 [trial court’s discretion to deny an untimely motion exists “to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice”].)
Most recently, the California Supreme Court concluded in determining the timeliness of a defendant’s pretrial Faretta motion, the trial court “may consider the totality of circumstances.” (People v. Lynch, supra, 50 Cal.4th at p. 726.) “Thus, a trial court properly considers not only the time between the motion and the scheduled trial date, but also such factors as whether trial counsel is ready to proceed to trial, the number of witnesses and the reluctance or availability of crucial trial witnesses, the complexity of the case, any ongoing pretrial proceedings, and whether the defendant had earlier opportunities to assert his right of self-representation.” (Ibid.)
D. Trial Court’s Failure to Make a Sua Sponte Inquiry
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.” (People v. Windham, supra, 19 Cal.3d at p. 129, fn. 6.) The court’s exercise of discretion in denying the untimely motion is properly affirmed if substantial evidence in the record otherwise supports the inference the court had those factors in mind when it ruled. (People v. Scott, supra, 91 Cal.App.4th at p. 1206.) This is true even if the trial court failed not only to state the reasons for its decision to deny the motion but also to make the sua sponte inquiry generally required. Thus, in People v. Dent (2003) 30 Cal.4th 213, a request for self-representation was denied without a sua sponte inquiry solely because it was a death penalty case, an improper reason. The Supreme Court stated, “Even though the trial court denied the request for an improper reason, if the record as a whole establishes defendant’s request was nonetheless properly denied on other grounds, we would uphold the trial court’s ruling.” (Id. at p. 218.) Ultimately the Supreme Court concluded the record in Dent did not otherwise support denial of the motion. Nevertheless, Dent sanctions appellate review of the entire record to determine whether the trial court abused its discretion in denying a motion for self-representation, even when the trial court based its denial of self-representation on an improper ground and without a sua sponte inquiry.
In this case, the trial court made no sua sponte inquiry, apparently basing the decision to deny the untimely Faretta motion on defendant’s statement that he would not be ready for trial within three days. While the exchange between the court and defendant on the Faretta motion was brief, under the circumstances, it supported the trial court’s exercise of discretion. The court was aware defendant’s motion was precipitated by his dissatisfaction with his current appointed counsel, whom he had unsuccessfully attempted to replace with the Marsden motion. Thus, the record shows the court considered the quality of defense counsel’s representation, defendant’s reason for the request, and defendant’s implied request for a continuance after telling the court on Friday, June 1, 2009, that he would not be ready for trial on Monday, June 4, 2009. The record also shows this was defendant’s second attempt to replace his appointed counsel, although attorney Lindars was apparently relieved for reasons other than those urged by defendant in his Marsden motion. While this was not a complex case, and there was no suggestion of witness reluctance or unavailability, both attorney Mogul and the prosecutor were ready to proceed with trial, eight months had elapsed since the preliminary hearing in October 2008, and over five months had elapsed since the appointment of attorney Mogul, during which defendant had ample opportunities to assert his right to self-representation. The trial court did not abuse its discretion in denying defendant’s Faretta motion. (See People v. Perez (1992) 4 Cal.App.4th 893, 904.)
The cases upon which defendant relies are readily distinguishable: In People v. Tyner (1977) 76 Cal.App.3d 352, 355, the appellate court found the trial court improperly denied the defendant’s Faretta motion to represent himself after the matter was called for jury trial but before the jury was impaneled because he did not request to seek a continuance. The defendant stated his displeasure with the quality of the deputy public defender’s representation, said he wanted to “‘dismiss counsel’” and represent himself, was aware he was facing a sentence of ten years to life, and stated “he was ready to proceed forthwith.” (Tyner, supra, at p. 354.) He further stated that “his theory of defense was ‘mistaken identification’ and that he was ready to cross-examine adverse witnesses and had prepared ‘fifty questions in which to cross-examine the witnesses.’” (Ibid.)
In People v. Herrera (1980) 104 Cal.App.3d 167, 171, the trial court denied the defendant’s Faretta motion, which he made on the morning of trial before the jury was selected, and indicated “how he intended to defend his case and appeared ready to proceed.” The appellate court found, based on the circumstances, there was reasonable cause for the lateness of the defendant’s Faretta motion in that he made it at his earliest opportunity, which just happened to be shortly before trial. (Herrera, supra, at p. 174.)
In People v. Nicholson (1994) 24 Cal.App.4th 584, the motions for self-representation at issue were made nine calendar days before jury selection was due to begin. (Id. at p. 587.) Although the appellate court chose to treat the defendants’ motions for self-representation as nonconstitutional, its discussion of the abuse of discretion standard must be considered dictum because the motions were in fact brought in a reasonable time before the trial actually commenced. Nicholson states that where self-representation is requested for a legitimate reason, and there is no request for a continuance or reason to believe there would be any delay or disruption, it is an abuse of discretion for the court to deny a Faretta motion. (Nicholson, supra, at p. 593.)
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.