Opinion
B296688
04-24-2020
THE PEOPLE, Plaintiff and Respondent, v. VANTRAE GREGORY, Defendant and Appellant.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael C. Keller and David E. Madeo, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 8PH07555) APPEAL from an order of the Superior Court of Los Angeles County, Robert M. Kawahara, Commissioner. Affirmed. Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael C. Keller and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
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Several years after being released on parole following a prison term for first degree murder, defendant Vantrae Gregory was alleged to have violated the terms of his parole by among other things committing an assault with a deadly weapon. Following an evidentiary hearing, the trial court found true the allegation Gregory had committed the assault, and remanded Gregory to the custody of the California Department of Corrections and Rehabilitation (CDCR).
Gregory now appeals, contending the trial court erred in refusing to permit Gregory to represent himself during the parole revocation proceeding. We find no error, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
On January 2, 1986, Gregory was convicted of first degree murder (Pen. Code, § 187, subd. (a)(1).) He was sentenced to 27 years to life in state prison; on January 29, 2015, he was released on parole supervision.
On November 27, 2018, Gregory assaulted a woman (including slashing her with a knife) at the Weingart Center for the Homeless in Los Angeles, where he was staying. Gregory called his parole agent on November 28, 2018 to report a woman had accused him of stabbing her.
Gregory denied using a knife, and asserted he acted in self-defense.
The author of this opinion is not related to the family behind the Weingart Center.
B. Procedural Background
Gregory was arrested on December 3, 2018; he remained in custody thereafter. On December 10, 2018, Gregory was charged in a petition for parole revocation with absconding from supervision (count 1) and assault with a deadly weapon (count 2). At a December 12, 2018 arraignment on the petition, the court set the revocation hearing for January 10, 2019, with a progress report hearing to take place December 21, 2018.
1. December 21 , 2018 Hearing
At the December 21, 2018 hearing, defense counsel requested to continue the parole revocation hearing from January 10 to January 23, 2019, to have adequate time to investigate the facts and prepare. Gregory objected to the continuance. When the court (Commissioner Jerry Marshak) granted the continuance over Gregory's objection, Gregory said "I want to go pro per." When the court asked why, Gregory said "Everything needs to be done on the time period. Everything they have, they should have." Gregory also began to protest his innocence before the court said it would not allow him "to talk about the facts of the case for your own protection." The court explained the seriousness of the case, and the need for counsel to prepare a defense. Gregory said he did not believe there was a need to continue the hearing because there was a camera that showed the incident, and if counsel wanted two extra weeks to prepare he wanted to go pro. per.
The court responded "I am not going to allow that based on this decision, sir. If you want to go pro per, that has to be a whole other inquiry based on other issues other than a disagreement with your lawyer about a potential two weeks continuance, especially when that is obviously not in your best interest." Gregory protested that he had lost his job and was in custody again. The court concluded by saying "I am going to tell you [that] any request to represent yourself must by law be made unequivocally and with the true desire on your part and not out of any ancillary frustration or emotion or any other issue than the desire from the get go to represent yourself. I am not finding that is the case here. You expressed a desire to represent yourself in a reactionary way. That's clearly born out of frustration in the moment and is not, to me, evidence [of] a true desire. I will not allow you pro per status at this time."
2. January 23 , 2019 Hearing
On January 23, 2019, the parties appeared for a hearing setting before Commissioner Kawahara. After discussing the status of discovery, including technical difficulties with viewing surveillance video from the Weingart Center, defense counsel requested a further continuance. Gregory then said he did not want to keep his present counsel. The court said that because counsel was appointed, Gregory did not get to choose his lawyer. Gregory then said "May I go pro per and turn over the discovery to me?" The court said it understood Gregory's frustration with the delay, "but you are a lifer. The potential is you can go back to state prison indefinitely." Gregory said he understood, "[b]ut at the same time, I am the provider for my family. . . . I'm the one losing everything here. I will end up losing my family. My family going to be sleeping on the streets."
Over multiple interruptions by Gregory, the court explained it would hear Gregory out "if you don't feel these attorneys are working for you competently," and that if necessary it would hold a hearing about allowing Gregory to represent himself. After the court clarified his requests would also cause delay, Gregory said "Either way, I have to wait. It don't matter." After expressing further frustration with the delay, Gregory again requested to represent himself. The court initially ordered Gregory be provided with necessary paperwork regarding self-representation; it then looked at the court file and saw Gregory's request for pro. per. status was denied at the December 21, 2018 hearing. The court stated "[u]nless there is new evidence, I am not going to go over that again. . . . [It] sounds like this is sort of a continuing situation. So I don't see any new information to grant that request."
The court then asked Gregory "[I]s there anything different between the last court date and today's date, sir, as far as a reason for representing yourself other than you don't like the attorneys, how they are doing this?" Gregory answered he could not communicate with his attorney. The court replied that if Gregory had new information, it would pause the hearing and bring Commissioner Marshak into the courtroom when he was available to determine if there was new evidence warranting reconsideration of the pro. per. request. Gregory again expressed frustration with the delay in the commencement of the parole revocation hearing, and repeatedly interrupted the court while it attempted to speak. The court then stated "I am denying pro per status right now. You are continually interrupting the court for whatever basis or whatever reason."
The court then held an in camera hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118, after which it denied Gregory's request for new counsel. The court proceeded to set further dates, and asked Gregory if he understood the new dates. After Gregory continued to say he did not understand despite multiple explanations of what was occurring, the court found Gregory was being deliberately evasive in saying he did not understand, and continued the hearing over Gregory's objection to February 20, 2019 as a zero of 20 date.
3. February 22 , 2019 Hearing
On February 22, 2019, discovery was still not complete. Defense counsel explained the need for various outstanding items pertinent to the defense, and indicated she wanted to waive time over Gregory's objection. The court then set the revocation hearing for March 15, 2019. Gregory responded by saying "Let me go pro per." After the court indicated that issue was already addressed at the December 21, 2018 hearing, Gregory said "[m]y constitutional and procedural rights [have] already been denied because you keep putting my case off without my acceptance in that. I objected to that on several occasions." After saying "I don't exist here so nothing I say means anything," Gregory absented himself from the courtroom before the hearing concluded by walking out of the holding box.
4. March 8 , 2019 Hearing
On March 8, 2019, the court held a status conference, at which it ordered that "March 15th remains as the contested hearing date." No further continuance was requested, and Gregory did not request to represent himself.
5. March 15-18 , 2019 Revocation Hearing
On March 15, 2019, the revocation hearing commenced. At the conclusion of the hearing, the court found insufficient evidence that Gregory absconded from supervision, and found true the assault with a deadly weapon allegation. Gregory was ordered remanded to the custody of the CDCR.
DISCUSSION
"California law provides no statutory or constitutional right of self-representation" and therefore denial of self-representation "does not violate a state right." (People v. Johnson (2012) 53 Cal.4th 519, 528, italics omitted.) Instead, the right of self-representation flows from the Sixth Amendment to the United States Constitution. (Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562].) The Sixth Amendment right as defined in Faretta is "confined to the right to defend oneself at trial." (Martinez v. Court of Appeal of California (2000) 528 U.S. 152, 154 [120 S.Ct. 684, 145 L.Ed.2d 597].) While the United States and California Supreme Courts have not addressed the question, one federal court has found "[t]he Sixth Amendment does not apply to parole revocation proceedings." (U.S. v. Spangle (9th Cir. 2010) 626 F.3d 488, 494.)
Although there is a significant question as to whether the constitutional right of self-representation under the Sixth Amendment applies to a parole revocation proceeding, and thus whether structural as opposed to harmless error analysis applies here, we need not resolve that question. Assuming without deciding that Gregory had a constitutional right to self-representation, the court properly denied his request to proceed in pro. per.
A motion for self-representation must be timely, knowing and intelligent, and unequivocal. (People v. Stanley (2006) 39 Cal.4th 913, 931-932.) To determine if a request is unequivocal, "courts must determine 'whether the defendant truly desires to represent himself or herself.' [Citation.]" (People v. Tena (2007) 156 Cal.App.4th 598, 607.) "[A]n insincere request or one made under the cloud of emotion may be denied." (People v. Marshall (1997) 15 Cal.4th 1, 21.) When faced with a request for self-representation, "the court's duty goes beyond determining that some of [the] defendant's words amount to a motion for self-representation. The court should evaluate all of a defendant's words and conduct to decide whether he or she truly wishes to give up the right to counsel and represent himself or herself and unequivocally has made that clear." (Id. at pp. 25-26.)
"Applying these principles, courts have concluded that under some circumstances, remarks facially resembling requests for self-representation were equivocal, insincere, or the transitory product of emotion." (People v. Tena, supra, 156 Cal.App.4th at p. 607.) A request for self-representation made "out of annoyance or frustration, is not unequivocal—even if the defendant has said he or she seeks self-representation." (People v. Marshall, supra, 15 Cal.4th at p. 21.)
Here, the record supports the court's conclusion that Gregory's requests for self-representation were borne out of frustration and annoyance with delays in the commencement of the parole revocation hearing, and not a true desire to represent himself. While Gregory requested to represent himself at multiple hearings, each time he did so only after the court indicated it was going to grant a continuance of the hearing. His request to represent himself was based on further delay posing potential hardships to his family, and not an unequivocal desire to act as his own advocate. Indeed, when the court explained that changing counsel or having a Faretta hearing would also delay the proceeding, Gregory realized that "[e]ither way, I have to wait," and therefore "It don't matter." On another occasion, Gregory responded to a denial of his request to proceed in pro. per. by saying his rights were being denied not because he was not permitted to represent himself, but "because you keep putting my case off without my acceptance in that. I objected to that on several occasions." Once the hearing was in fact ready to proceed, and it was clear there would be no further continuances, Gregory did not make any request to represent himself.
In short, the record here confirms the trial court's conclusion that Gregory's requests for self-representation were borne out of annoyance and frustration over the pace of the proceedings, and not from an unequivocal desire to represent himself. There accordingly was no error in denying the requests for self-representation.
The court was further permitted to deny the request for self-representation based on Gregory's in-court conduct, as Commissioner Kawahara indicated the court was doing at the January 23, 2019 hearing. Gregory continually interrupted Commissioner Kawahara during the January 23, 2019 hearing, pretended not to understand clear explanations from the court at that same hearing, and walked out of a later hearing on February 22, 2019, before it concluded when the court overruled his objections. A trial court does not abuse its discretion in denying a Faretta motion where a reasonable basis exists for the court's conclusion that self-representation would be unacceptably disruptive. (People v. Welch (1999) 20 Cal.4th 701, 736.) The record here demonstrates the requisite basis to support the court's conclusion that self-representation would be unacceptably disruptive.
DISPOSITION
The order revoking Gregory's parole is affirmed.
NOT TO BE PUBLISHED
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
ROTHSCHILD, P. J.
CHANEY, J.