Opinion
B229182
11-29-2011
THE PEOPLE, Plaintiff and Respondent, v. RICHARD LAWRENCE PAGE, Defendant and Appellant.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Jaime L. Fuster, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VA111507)
APPEAL from a judgment of the Superior Court of Los Angeles County, Roger Ito, Judge. Affirmed.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
Richard Lawrence Page appeals from the judgment entered after a jury convicted him of the attempted murder of his former wife, Leisa Washington, and two related domestic violence counts. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Evidence at Trial Page and Washington lived together off and on for approximately 20 years and were married for four years. Although they had regularly experienced problems in their relationship, the difficulties intensified in 2006. Page's financial dependence on Washington and his drug use were the principal causes of friction in their relationship, and Page became physically and emotionally abusive to Washington. In November 2006, after Washington refused to give Page money, he grabbed and choked her and then threw her down on the patio of the home they shared. Washington made a police report and obtained a restraining order against Page. In early August 2007 Page approached Washington at a park near their house where Washington was exercising her dogs. Page asked her to give him money in exchange for a check he had been unable to cash. Washington refused, and Page grabbed her backpack. When Washington resisted, Page punched her in the eye, choked her and threw her to the ground. Washington suffered a black eye and bruises around her neck. She obtained another restraining order against Page.
Three weeks later, in late August 2007, Page violated the restraining order and approached Washington as she drove into the garage of their home. He became angry, attempted to grab her purse, grabbed her instead by the shirt and tried to pull her out of the car. He spit in her face and left.
Nearly a year later, in July 2008, Washington was cooking in her kitchen when she heard water running. She looked outside and saw Page spraying water with a hose through an open window of the den. When he saw Washington, he ran away.
In the late evening of July 22, 2009, Washington went to the nearby park to walk her dogs. While walking to the park, Washington spoke on her cell phone with a friend, Sharon Square, using a wireless earpiece. Once there, she sat at a picnic table and let the dogs play. Someone she assumed was "a bum" sat at a nearby table. The person stood up and began picking trash off the ground and putting it in a plastic bag. As the person got closer to her, Washington pointed her flashlight at him. Still speaking on her cell phone with Square, Washington told Square she thought the person might be Page, even though the man walked with a limp. As he turned toward her, Washington realized it was Page and told Square to call the police emergency hotline if she heard her scream. Washington began to collect her belongings, while Page petted the dogs. Page looked up at Washington and then lunged at her with closed fists. He hit her on the temple, knocking off her earpiece. Washington lost consciousness for a few moments. Meanwhile, Square called the police emergency hotline.
When Washington regained consciousness, she was lying face down on the ground with a bag tightly covering her head. She felt pressure around her neck and had trouble breathing. As Page continued to punch and kick her, she lost consciousness again. When she again regained consciousness, there was no longer a bag on her head; but Page kicked her, and she passed out. When she revived, the bag was back over her head; and she felt pressure as if Page were holding her down. She thought she was dying and lost consciousness yet again. This time, when she came to, the bag was gone; and she saw Page riding away on a bicycle.
At 11:19 p.m. Washington called the police emergency hotline and reported her ex-husband had just beaten her up. Five minutes later, Los Angeles County Sheriff's Deputy Silvia Moreno arrived at the park and found Washington, who was conscious but covered in blood and had several lacerations. Her eyes were swollen shut. After Washington described the attack by Page, Deputy Moreno found a black trash bag in the picnic area.
Washington spent four days in the hospital. She received stitches on her forehead, right eyebrow and upper lip. Three of her teeth were cracked, and one of her thumbs was sprained. She later required surgery to raise her left eyebrow because a nerve had been damaged in the attack. Page was arrested the next day. When he arrived at the station, the investigating deputy observed bloodstains on his tennis shoes. DNA testing confirmed the blood on the shoes belonged to Washington. Page did not testify on his own behalf, and the defense rested without calling any witnesses.
2. Page's Pretrial Motions Relating to His Representation
On November 12, 2009 Page, who had previously been represented by appointed counsel, waived his right to counsel and asked to represent himself. As directed by the court, Page executed a written advisement and waiver form pursuant to Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562] (Faretta). After orally advising Page about the disadvantages of self-representation and the charges against him, including attempted murder, the court granted Page's request.
On May 6, 2010 the court set trial for May 27 and asked Page if he still wanted to represent himself. Page answered yes. On the first day of trial, however, Page stated he was not ready because he had not been given certain arrest reports and had not been able to subpoena certain witnesses. He also filed a motion to disqualify the trial judge. On June 8, 2010 the trial court found the prosecution had complied with its discovery obligations and denied Page's motion for a continuance. Page again complained his witnesses had not responded to his subpoenas. The court trailed the trial to June 4, 2010 and told Page trial would not be further continued. On June 14, 2010 the court denied Page's motion for a continuance and ordered a jury panel for the next day. On June 15, 2010 Page filed a written motion for continuance, which the court denied; and jury selection began.
At the commencement of proceedings on June 17, 2010, Page asked the court to take "judicial notice" that he had been diagnosed with a serious medical condition and had been denied his medication. Consequently, he was in serious pain, was unable to attend the trial and wanted a continuance. Under questioning by the trial court, Page declined to identify either his condition or the pain medication he was missing. After a recess, the court stated for the record it had investigated Page's claim and learned that Page had received all prescribed medications and the medication he was now requesting was a common over-the-counter pain reliever. The court stated for the record Page did not appear impaired and seemed to have made a full recovery.
Jury selection continued. After its completion, Page stood in front of the jury and announced he wanted to rescind his propria persona status and have counsel appointed. The court excused the jury and informed Page his request was not timely. At the next court session, Page again requested counsel and argued his discovery rights had been violated. Although the court characterized Page's conduct as "game-playing," it excused the jurors until the following Monday. On Monday, June 21, 2010, after a brief exchange Page admitted to the court he was requesting counsel because he could not adequately represent himself. Over the People's objection, the court re-appointed Page's previous counsel. Page stipulated that jeopardy had not attached, and the court declared a mistrial. In doing so, the court stated, "In the event [Page] is ever to change his mind again, this particular record would be something that this court would consider at any further date. . . . In my estimation, what his manipulation is at this point . . . this court or any appellate court would recognize whether or not he would have a right to once again request [a] Faretta waiver."
On August 18, 2010 Page made a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden)requesting appointment of new counsel on the ground his current counsel had not met with him to discuss the case and had not prepared a defense. After hearing from defense counsel, the court denied the motion.
On October 15, 2010, the day scheduled for trial, Page refused to dress in civilian clothing and announced his desire to represent himself. When asked whether he was ready to proceed to trial, Page requested a continuance because of outstanding discovery issues. The court denied the request as untimely and referred to Page's previous admission he was unable to represent himself. Page stated he did not want to participate in the proceedings and requested "an extraction order." After a prolonged discussion, Page remained in court while jury selection proceeded. Later that day he brought another Marsden motion seeking to replace his appointed counsel. When that motion was denied, he refused to attend the remainder of jury selection.
3. Conviction and Sentencing
The jury found Page guilty of attempted willful, premeditated and deliberate murder (Pen. Code, §§ 664, 187, subd. (a)), corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)) and disobeying a domestic relations court order (Pen. Code, § 273.6, subd. (a)). The jury found Page had used a deadly weapon (Pen. Code, § 12022, subd. (b)(1)) and had caused great bodily injury to the victim (Pen. Code, § 12022.7, subd. (e)). Page was sentenced to state prison for an indeterminate life term with the possibility of parole on the attempted murder count, plus a one-year enhancement for the use of a deadly weapon and a five-year enhancement for inflicting great bodily injury, for an aggregate term of life plus six years. The court stayed the sentence on both the corporal injury to a spouse count and the violation of a domestic court order count under Penal Code section 654.
CONTENTIONS
Page contends there was insufficient evidence to support the finding of intent to commit murder and the trial court erred by failing to instruct on the lesser related offense of assault with a deadly weapon and improperly admitted evidence of prior incidents of domestic violence under Evidence Code section 1109 (section 1109). Page also argues the trial court erred in denying his Marsden motions for new counsel and his second Faretta request to represent himself.
DISCUSSION
1. The Attempted Murder Conviction Is Supported by Substantial Evidence To assess a claim of insufficient evidence in a criminal case, "we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
"'The mental state required for attempted murder has long differed from that required for murder itself. Murder does not require the intent to kill. Implied malice—a conscious disregard for life—suffices. [Citation.]' [Citation.] In contrast, '[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.'" (People v. Smith (2005) 37 Cal.4th 733, 739; see also People v. Bland (2002) 28 Cal.4th 313, 327-328.) Stated somewhat differently, in order to be found guilty of attempted murder, the jury must find the defendant acted with express malice, that is, the defendant intended to cause the death of a particular victim or knew to a substantial certainty that that result would occur. (Smith, at p. 739 ["[e]xpress malice requires a showing that the assailant '"'either desires the result, i.e., death or knows to a substantial certainty that the result will occur'"'"], internal brackets in original omitted; Bland, at p. 328.) "[I]t is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant's acts and the circumstances of the crime." (Smith, at p. 741.)
The jury in this case was presented ample evidence to conclude Page intended to kill Washington. Photographs of Washington's face taken after the attack and introduced into evidence were accurately described as "gruesome." As Washington detailed the attack, Page first hit her on the side of her head with sufficient force to knock her out. When she was on the ground, he kicked her so hard her blood was left on his shoes. He also used force to pin her down with a plastic bag covering her face to prevent her from breathing. Washington believed she was going to die. Viewed in the context of Page's previous attacks, the jury's conclusion he intended to cause her death was unquestionably reasonable. Indeed, the trial court, given an opportunity to grant Page a new trial after the verdict, agreed, finding "overwhelming evidence of a willful, premeditated attempted murder."
2. The Prosecutor Did Not Provide the Necessary Consent To Instruct on a Lesser Related Offense
A trial court in a criminal case has a duty to instruct on general principles of law applicable to the case (People v. Blair (2005) 36 Cal.4th 686, 745), that is, "'"'those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.'"'" (People v. Valdez (2004) 32 Cal.4th 73, 115.) This obligation includes the duty to instruct on a lesser included offense if the evidence raises a question as to whether the elements of the lesser included offense, but not the greater offense, are present. (Ibid.; People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Birks (1998) 19 Cal.4th 108, 118 (Birks).)
A particular offense is considered a "lesser included" offense and, therefore, subject to the duty to instruct, if it satisfies one of two tests. The "elements" test is satisfied if the statutory elements of the greater offense include all the elements of the lesser, so that the greater cannot be committed without committing the lesser; the "accusatory pleading" test is satisfied if the facts actually alleged in the accusatory pleading include all the elements of the lesser offense such that the greater offense charged cannot be committed without committing the lesser offense. (People v. Sloan (2007) 42 Cal.4th 110, 117; accord, People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.)
It is undisputed the crime of aggravated assault (Pen. Code, § 245, subd. (a)) is not a lesser included offense of attempted murder. (See People v. Bragg (2008) 161 Cal.App.4th 1385, 1397-1398.)
The Supreme Court has held, however, absent agreement from the prosecution, a criminal defendant has no right to instructions on lesser offenses that are related to, but not necessarily included in, the charges actually filed. (Birks, supra, 19 Cal.4th at p. 136; see Hopkins v. Reeves (1998) 524 U.S. 88 [118 S.Ct. 1895, 141 L.Ed.2d 76] [instructions on uncharged lesser related offenses not required as matter of federal due process].) In a recent decision, People v. Hall (Nov. 7, 2011, B224359) ___ Cal.App.4th ___, ___ (Hall), our colleagues in Division Five of this court extended the reasoning of the Supreme Court in Birks and held the decision whether to instruct on a lesser related offense ultimately rests with the court, regardless of the agreement of the prosecution with the defense request. As the Hall Court explained, Birks approved the proposition a defendant may not "unilaterally require the instruction on an uncharged lesser related offense because such a requirement would be unfair to the prosecution and interfere with its charging determination." (Hall, at pp. [16254-16255].) Birks also observed, "'there can be no clear standards for determining when a lesser offense, though not necessarily included in the charge, is nonetheless related for instructional purposes. This leaves an accused potentially infinite latitude to argue a sufficient link.' [Citation.] . . . 'The resolution of requests for instructions on lesser related offenses thus involves nuanced "'questions of degree and judgment.'"'" (Hall, at p. 16255.) Division Five rejected the defendant's assertion the trial court had erred in rejecting the requested instruction notwithstanding the agreement of the defense and the prosecutor the instruction was proper. (Ibid.)
Here, Page's counsel requested the jury be instructed with CALCRIM No. 875 (assault with a deadly weapon or force likely to produce great bodily injury) as a lesser related offense to the attempted murder count. The trial court denied the request. Page contends the prosecutor's failure to object to a lesser related offense instruction should have been construed by the trial court as consent to the instruction on the lesser related charge.
Even absent the recent decision in Hall, the record is quite clear neither the prosecutor nor the court approved the requested instruction. Defense counsel requested the lesser related instruction relating to aggravated assault (Pen. Code, § 245, subd. (a)), and the court, relying on Birks, denied the request. Defense counsel submitted on the argument, eliminating any requirement for the prosecutor to advise the court of a contrary position. This abbreviated discussion followed a more extensive colloquy in which defense counsel requested the court not instruct on lesser included offenses of simple assault and battery on the felony count of infliction of corporal injury on a spouse. The court made an express finding defense counsel was making a strategic decision with respect to the lesser included counts. There was no ambiguity on the part of the court or either counsel as to the contemplated instructions. We will not construe the prosecutor's silence as an accession to defense counsel's request for an aggravated assault instruction, particularly in light of Hall.
3. The Propensity Evidence Was Properly Admitted Under Section 1109
In a criminal trial involving charges of domestic violence, section 1109 permits the introduction of evidence of the defendant's commission of other acts of domestic violence unless, pursuant to Evidence Code section 352, "its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." The Legislature enacted section 1109 because of "the special nature of domestic violence crime . . . : 'The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any one battering episode is part of a larger scheme of dominance and control, that scheme usually escalates in frequency and severity. Without the propensity inference, the escalating nature of domestic violence is likewise masked. . . .' (Assem. Com. Rep. on Public Safety (June 25, 1996) pp. 3-4.)" (People v. Johnson (2000) 77 Cal.App.4th 410, 419.)
Section 1109, subdivision (a)(1), states, "[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352."
a. Section 1109 does not violate a defendant's right to due process Page initially contends section 1109 violates principles of due process. However, section 1109 is substantively identical to Evidence Code section 1108, which authorizes the use of propensity evidence when the defendant is charged with an enumerated sexual offense. In People v. Falsetta (1999) 21 Cal.4th 903, 911, 916-917 the Supreme Court held Evidence Code section 1108 does not violate due process principles— notwithstanding the general rule that propensity evidence is unduly prejudicial—in large part because trial courts "must engage in a careful weighing process under [Evidence Code] section 352" before admitting such evidence: "Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." Evaluating the evidence under the standards of Evidence Code section 352 is the "safeguard" that ensures admission of evidence of uncharged sexual offenses will not result in a fundamentally unfair trial and thus "strongly supports the constitutionality of [Evidence Code] section 1108." (Falsetta, at p. 916.)
Evidence Code section 1108, subdivision (a), states, "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
As Page concedes, even though the Supreme Court has not addressed the constitutionality of section 1109, every Court of Appeal that has considered the issue has applied the reasoning of Falsetta, supra, 21 Cal.4th 903 and held section 1109 does not violate due process. (See e.g., People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People v. James (2000) 81 Cal.App.4th 1343, 1353; People v. Brown (2000) 77 Cal.App.4th 1324, 1335; People v. Hoover (2000) 77 Cal.App.4th 1020, 1027-1028; People v. Johnson, supra, 77 Cal.App.4th at pp. 417-420.) We see no reason to depart from the reasoning of these decisions.
b. Evidence of Page's prior abuse of Washington was relevant and not unduly prejudicial
In determining whether to admit prior acts of domestic violence, the trial court must consider whether the prior acts are more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, the closeness in time of the prior acts, and whether the defendant has already been convicted of and punished for the prior acts. (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
Contrary to Page's contention, evidence of the four prior incidents admitted here had substantial probative value under Evidence Code section 352 because of their similarity to the present incident. Page typically approached Washington when she was alone in a place he knew she frequented. He had previously attacked her in the same park. Although two of the previous incidents (the episodes involving the water hose and spitting) were more childish than dangerous, the other incidents displayed a potential for brutality that prefigured the July 2009 attack in the park. (See People v. Johnson, supra, 77 Cal.App.4th at p. 419. [discussing Legislature's concern with escalating severity of violence].) Indeed, the evidence of Page's prior acts of domestic violence was markedly less inflammatory than the charged offense, yet another factor weighing in favor of its admission. (People v. Rucker, supra, 126 Cal.App.4th at p. 1119 ["[r]elevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct"].) We have no doubt the evidence was damaging to Page's defense. But it was not prejudicial in the sense that it "'uniquely tend[ed] to evoke an emotional bias against the defendant as an individual and which ha[d] very little effect on the issues.'" (People v. Karis (1988) 46 Cal.3d 612, 638.)
4. The Trial Court Did Not Improperly Deny Page's Motions for Appointment of New Counsel
When a criminal defendant seeks replacement of appointed counsel because of inadequate representation, a trial court must give the defendant a hearing and an opportunity to explain the reasons for the request. (Marsden, supra, 2 Cal.3d at p. 120; accord, People v. Chavez (1980) 26 Cal.3d 334, 347 ["'A trial judge is unable to intelligently deal with a defendant's request for substitution of attorneys unless he [or she] is cognizant of the grounds which prompted the request. The defendant may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four corners of the courtroom. . . . A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention "is lacking in all the attributes of a judicial determination."'"].)
A Marsden hearing is not a full-blown adversarial proceeding but rather an informal hearing in which the court determines the nature of the defendant's concerns about his or her counsel's representation and decides whether the allegations have sufficient substance to warrant counsel's replacement. (People v. Gutierrez (2009) 45 Cal.4th 789, 803.) "Replacing counsel lies within the court's discretion. 'The court does not abuse its discretion in denying [a Marsden ] motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel.'" (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1003; accord, People v. Smith (2003) 30 Cal.4th 581, 604.) Page challenges the denial of two of the motions he made for replacement counsel—one made on August 18, 2010, and the other made on October 15, 2010. In each instance Page complained his counsel was not responsive to him and had failed to interview witnesses or prepare an adequate defense. Both times the court questioned counsel about the allegations and concluded Page's concerns were not justified and his counsel's representation did not fall below the standard of care. In addition, the court found Page was repeatedly engaging in tactics to delay the trial and had not cooperated with his counsel. Although Page contends his behavior arose from his irreconcilable conflict with his counsel, the court found there had been no fundamental breakdown of communication. All these findings are amply supported by the record and more than adequate to support the denial of Page's Marsden motions.
5. The Trial Court Did Not Err in Denying Page's Request To Represent Himself
A criminal defendant has the right under the Sixth and Fourteenth Amendments to the United States Constitution to waive his or her right to counsel and to represent himself or herself. (Faretta, supra, 422 U.S. at p. 819 ["[t]he Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense"]; People v. Koontz (2002) 27 Cal.4th 1041, 1069 ["'A defendant in a criminal case possesses two constitutional rights with respect to representation that are mutually exclusive. A defendant has the right to be represented by counsel at all critical stages of a criminal prosecution. [Citations.] At the same time . . . because the Sixth Amendment grants to the accused personally the right to present a defense, a defendant possesses the right to represent himself or herself.'"].) The right to represent oneself, however, is not absolute. "Faretta motions must be both timely and unequivocal. Otherwise, defendants could plant reversible error in the record. [Citation.] Equivocation of the right of self-representation may occur where the defendant tries to manipulate the proceedings by switching between requests for counsel and for self-representation, or where such actions are the product of whim or frustration." (People v. Lewis and Oliver, supra, 39 Cal.4th at pp. 1001-1002.)
A trial court properly considers the totality of the circumstances in ruling on the timeliness of a Faretta motion. (People v. Lynch (2010) 50 Cal.4th 693, 726.) Relevant factors include "the time between the motion and the scheduled trial date," "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.; see also People v. Valdez (2004) 32 Cal.4th 73, 103 [trial court should consider factors such as "'"'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'"'"].)
The ruling challenged here—made at the commencement of jury selection on the second attempt to try Page—was preceded by Page's previous stint of self-representation. That effort culminated in a mistrial after Page acknowledged he was unable to represent himself on such complex charges. In granting Page's request to withdraw his pro per status in June 2010, the court presciently observed, "In the event [Page] is ever to change his mind again, this particular record would be something that this court would consider at any further date. . . . In my estimation, what his manipulation is at this point . . . this court or any appellate court would recognize whether or not he would have a right to once again request [a] Faretta waiver."
Sure enough, dissatisfied with his counsel and the court's rulings on his Marsden motions, Page made another request to represent himself under Faretta. The court properly concluded the motion was untimely. (See, e.g., People v. Valdez, supra, 32 Cal.4th at pp. 102-103 [Faretta motion made moments before jury selection set to begin was untimely]; People v. Frierson (1991) 53 Cal.3d 730, 742 [motion for self-representation made on the eve of trial is untimely and is thus addressed to sound discretion of the trial court]; People v. Clark (1992) 3 Cal.4th 41, 99-100 [trial court had discretion to deny motion for self-representation because it was made when the trial date was being continued on a day-to-day basis, in effect on the eve of trial]; see People v. Howze (2001) 85 Cal.App.4th 1380, 1397 [motion made immediately before or on day of trial is generally considered untimely]; People v. Rudd (1998) 63 Cal.App.4th 620, 625-626 [motion made on the Friday before a trial scheduled to begin the following Monday was untimely].) Faced with an untimely Faretta request, the court had broad discretion to consider whether granting of the motion would cause undue disruption and delay of the proceedings. (People v. Burton (1989) 48 Cal.3d 843, 852; see People v. Jackson (2009) 45 Cal.4th 662, 689 [no abuse of discretion in denying Faretta request made during voir dire because granting motion would have caused undue delay].) Having determined counsel was present and ready for trial and that the request for self-representation was essentially a delay tactic to continue the trial, the court denied the motion. That decision was well within the court's discretion.
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J. We concur:
WOODS, J.
JACKSON, J.