Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa Chung, Judge, Los Angeles County Super. Ct. No. MA033365
Cheryl Barnes Johnson, 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, Keith H. Borjon and John R. Gorey, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Tramel J. Oliver faced life in prison if he went to trial. He pleaded no contest to serious charges, was sentenced, and now appeals. He argues the trial court refused to let him represent himself, thus violating Faretta v. California (1975) 422 U.S. 806 (Faretta). We affirm.
To invoke the constitutional right of self-representation, a criminal defendant must unequivocally assert it within a reasonable time before trial. (People v. Marshall (1996) 13 Cal.4th 799, 827.) Our Supreme Court has “emphasized the importance of an unequivocal request for self-representation. . . . [T]he court should draw every reasonable inference against waiver of the right to counsel . . . .” (People v. Valdez (2004) 32 Cal.4th 73, 98 [italics added]; see also People v. Tena (2007) 156 Cal.App.4th 598, 604-609.)
Oliver never asserted his right to self-representation unequivocally.
Oliver says he first made the demand on September 8, 2006. But the transcript from that day shows that Oliver withdrew this request.
Oliver next claims he made his Faretta request in writing on September 21, 2006. But this two-page document is captioned “MOTION REQUESTING A MARSDEN HEARING” (People v. Marsden (1970) 2 Cal.3d 118) and mentions nothing about self-representation until the last line of the last sentence. This passing mention of self-representation is brief and conditional. It is not unequivocal. At the hearing on this motion, moreover, the court conducted the Marsden hearing. Oliver said nothing about self-representation. Saying nothing is not an unequivocal demand.
Oliver finally claims he asked to represent himself on October 17, 2006. On that date, however, Oliver again said “I would like a Marsden hearing.” The court cleared the room and said, “Mr. Oliver, you’ve made several Marsden hearings. This is another one.” Oliver replied, “Yes.” Oliver then gave reasons why he wanted a new lawyer. He finished with a request for “my federal rights to go pro per with co-counsel. I would like to sign the papers right now.” The court replied, “I will handle the Marsden hearing first. If at that point you wish to make a motion pro per, that’s a separate hearing with the prosecutor after you’ve filled out waiver forms.”
The trial court conducted the Marsden hearing outside the presence of the prosecutor. The court denied Oliver’s Marsden motion and said, “Let’s buzz [the prosecutor], and we’ll address the pro per issue.” Oliver’s immediate reply was, “Can I go for a plea bargain?” The trial judge replied that “[t]he rest we need to do in open court, but we’ll talk about it.” At the court’s request, the prosecutor entered the courtroom.
The court said to Oliver, “You were saying?” Oliver did not say “Pro per.” Rather he said, “Plea bargain.” There follows an eight-page discussion among the judge, Oliver, Oliver’s lawyer, and the prosecutor about the terms of the bargain. Oliver never returned to the topic of representing himself.
The transcript shows that Oliver and his lawyer interrupted this recorded negotiation to confer privately seven different times. Finally Oliver’s lawyer announced, “We’re ready to proceed, Your Honor.” The court said, “To proceed with what?” Oliver’s lawyer said, “The plea.” Oliver then entered his no contest plea.
Oliver never was unequivocal when he mentioned self-representation. Rather, he equivocated, and understandably so. A hard decision stared at him: plead to a long sentence, or risk life at trial. It is only human to look away and hope for some way out. One urge is to fire the lawyer bearing the bad news. But the judge repeatedly had denied Oliver’s Marsden motions, which are not on appeal.
So Oliver was stuck with that lawyer. What about being his own lawyer? Oliver toyed with this idea, thought the better of it, and dropped the topic of self-representation. The trial court did not err by following Oliver’s lead.
The judgment is affirmed.
We concur: WOODS, Acting P. J., ZELON, J.