Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. BA294725 Patricia M. Schnegg, Judge.
Mark Yanis, 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, Scott A. Taryle and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Marcos Florez appeals from the judgment of conviction suffered upon his conviction of two narcotics offenses with enhancements, including prior conviction enhancements. He raises a single issue on appeal: trial court error in not granting his request to represent himself at the sentencing hearing. We find no error, and affirm.
FACTUAL AND PROCEDURAL SUMMARY
Since the only issue raised on appeal is a claim of Faretta error (see Faretta v. California (1975) 422 U.S. 806), it is not necessary to recount the evidence supporting the guilty verdicts and the true findings on enhancements. (People v. White (1997) 55 Cal.App.4th 914, 916, fn. 2.) He was convicted of violating Health and Safety Code sections 11352, subdivision (a) (sale of a controlled substance) and 11351 (possession of a controlled substance for sale), with a quantity enhancement (Health & Saf. Code, § 11370.4, subd. (a)(1)) and enhancements for two prior narcotics convictions (Health & Saf. Code, § 11370.2, subd. (a)). The prior conviction allegations were bifurcated, and defendant was convicted of the other charges by jury verdict. He subsequently waived jury trial on the prior conviction allegations, which were tried to the court and found true. He was sentenced accordingly, and filed a timely notice of appeal.
Defendant was initially represented by appointed counsel. He was represented by retained counsel during most of the pretrial proceedings and during the jury trial. The jury returned its verdicts on June 12, 2006. The case came on for trial of the prior conviction allegations and sentencing on July 7, 2006. At that time, defendant’s retained counsel informed the court that defendant was dissatisfied with his services, that he had questions about evidentiary issues and the verdicts, and that he wanted to terminate the attorney’s representation. Responding to the court’s question as to what defendant wanted to do, counsel suggested that it was necessary to inquire of defendant who, of course, was present in court. Responding to the court’s question (“[W]hat’s your desire in this case?”) defendant complained that his retained attorney had done almost nothing to defend the case, and that defendant wanted “an attorney, a state attorney” to review the case. He also complained that he was not allowed to testify. His attorney stated that he had made it clear to defendant that it was defendant’s right to testify even if counsel did not think it was in his best interest to do so.
The court then asked defendant, “So what [you] want me to do is get you an appointed attorney. Is that right?” Defendant answered, “Yes, please.” Defendant waived time for sentencing and the court put the matter over until July 28, 2006.
By that date, the public defender had commenced representation of defendant. The deputy public defender standing in for the assigned attorney explained that a substantial continuance would be necessary for preparation of a transcript of proceedings that new counsel could review in order to represent defendant at the further proceedings. Defendant again waived time for sentencing. The matter was put over until September 27, 2006. It was subsequently continued several times until a hearing on January 16, 2007.
The matter was before the court on that date to select a date for trial of the prior conviction allegations and for sentencing. On that occasion, defendant asked to talk to the judge, who said that she would listen to whatever he wanted to say on January 24, 2007, the time for sentencing. Apparently defendant had written a note, which the judge said she would read by that date. Later in the proceeding, the date of further proceedings was advanced to Friday of that week, January 19, 2007. The following colloquy then occurred:
“MS. GUPTA [Deputy Public Defender]: I will come on Friday.
“THE COURT: We start doing two calendars on the 19th. It’s absolutely the same if you want to come on Friday, that’s fine.
“MS. VODNOY [Deputy District Attorney]: Thank you.
“THE COURT: All right. So sentencing 1-19-07. That’s this Friday. Thank you.
“THE DEFENDANT: I don’t want her to represent me anymore.
“THE COURT: Well, he had a private attorney; right?
“MS. GUPTA: Yes.
“THE COURT: Then after trial, something happened. I don’t know what, but that private attorney wasn’t representing you anymore because you took issue with what he did in the trial, as I recall. So now we have the office of the public defender representing you.
“THE DEFENDANT: So you see, it’s not a state appointed attorney.
“THE COURT: Yes, she is. Actually, she is.
“THE DEFENDANT: No.
“THE COURT: Well, she is.
“THE DEFENDANT: It says public defender.
“THE COURT: That’s right. And she is a state appointed attorney.
“THE DEFENDANT: Well I don’t need her.
“THE COURT: Well, you know what? If you want to represent yourself, you’re going to have to make that motion on Friday. And we’ll deal with it then. I strongly think you should think about that. So you’ve been tried. You were convicted by a jury. I didn’t convict you. She didn’t convict you, but a jury convicted you. So that’s what [sic] we’re at in this case.
“THE DEFENDANT: I understand.
“THE COURT: Okay. All right. We’ll see you on Friday.”
At the January 19 hearing, the court announced that it had read defendant’s letter, which was made a part of the record. In it, he said:
“Your Honor, [¶] I am making a motion to set aside the conviction based on the total lack of evidence against me. My trial conviction has been erroneous. I no longer need this public defender, there’s a conflict of interest. I want a state attorney, or I want to defend myself. The only evidence found against me is based on false testimony (fabrication). I have asked for my manuscript a number of times and have not gotten them. There was no substantial evidence against me, and further more, I don’t feel I received a fair trial in this courtroom. On that note, I would like a new trial at a different venue. My conviction is not fair to the justice system. [¶] Your Honor, please honor my request, because I am truly innocent. [¶] Thank you. [¶] Marcos Florez.”
Defendant waived jury trial with respect to the prior conviction allegations, which were tried to the court. The court found the allegations to be true. The court then pronounced sentence.
Defendant argues that his letter to the court and his oral statements to the court amounted to a request to represent himself at sentencing, which the trial court erroneously failed to honor. The Attorney General argues that defendant failed to make an unequivocal request for self-representation, that his request came too late, and that the court properly exercised its discretion in declining to honor the late request. The first argument has merit, making it unnecessary to decide the others.
There is little authority on the right and requirements for exercise of the right to self-representation at sentencing following a trial at which the defendant was represented by counsel. As defendant argues, People v. Miller (2007) 153 Cal.App.4th 1015, is directly on point. The case holds that the defendant in a criminal case has a right to self-representation in this situation, and his or her request is not late simply because it was not made during the guilt trial. The court also concludes that improper denial of the request is per se reversible error. (Id. at p. 1024.) But the only case cited for that proposition, People v. Welch (1999) 20 Cal.4th 701, 729, involved improper denial of a pretrial request to self-represent. We need not decide whether error in this situation is per se reversible, because we find no error.
As both sides recognize, a defendant’s request or motion to represent himself or herself must be unequivocal. (People v. Marlow (2004) 34 Cal.4th 131, 147.) As we have seen, when defendant expressed dissatisfaction with his retained attorney, the court asked if he wanted it to appoint counsel, defendant said that he did, and that was done. Later, when the court recounted those proceedings, defendant said that appointed counsel, the public defender, was “not a state appointed attorney,” and the court correctly pointed out that she was. Replying to the Attorney General’s argument that his requests were equivocal, defendant’s appellate counsel quoted defendant’s letter to the court, as follows: “I want a state attorney or I want to defend myself,” which emphasizes the portion of the sentencing following the disjunctive “or.” But the “or” is telling: defendant wanted a state attorney “or” if not, he wanted to defend himself. As the trial court pointed out, the public defender is a “state attorney.” Defendant’s later statement that he did not want the public defender and did not need her again falls short of an unequivocal request, or demand, that the court relieve that officer and allow defendant to proceed pro se. The trial court had told him that if he wanted to represent himself, he needed to make that motion at the sentencing hearing. He did not do so. Instead, he was represented at the hearing by the deputy public defender, who cross-examined the People’s fingerprint expert on the prior conviction issue, and then at sentencing, with no motion or protest by defendant.
On this record, we conclude that defendant did not make an unequivocal request or motion to represent himself at sentencing.
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J.,,SUZUKAWA, J.