Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA086954, George Genesta, Judge.
Linn Davis, 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, Jaime L. Fuster and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
Defendant and appellant Tyrone Roshawn Ramsey was convicted by jury in count 1 of second degree robbery (Pen. Code, § 211), in count 2 of misdemeanor assault (§ 240), and in count 3 of assault with a deadly weapon (§ 245, subd. (a)(1)). The jury further found defendant had suffered four serious felony prior convictions for robbery pursuant to sections 1170.12, subdivisions (a)-(d), 667, subdivisions (b)-(i), and 667, subdivision (a), and that defendant served five prior prison terms (§ 667.5, subd. (b)).
All statutory references are to the Penal Code, unless otherwise stated.
The trial court sentenced defendant to consecutive terms of 25 years to life in state prison in counts 1 and 3. Enhancements of 21 years in state prison were imposed for defendant’s four prior convictions pursuant to section 667, subdivision (a) and prior prison term under section 667.5, subdivision (b).
In his timely appeal, defendant contends he did not knowingly and intelligently waive his Sixth Amendment right of self-representation. He further asks this court to conduct an independent review of the in camera hearing held pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We affirm.
FACTS
One of the owners of the Kokho Aquarium in El Monte found defendant sitting at the owner’s desk on December 17, 2008. When questioned as to his purpose of being at the desk, defendant claimed to be looking for a job. He put money belonging to the aquarium into his pocket, pushed the owner aside, ran from the store, and entered a truck. A customer from the store attempted to pull defendant from the truck, but defendant placed the car in reverse, causing the customer to throw himself out of the way of the vehicle. The owner, who was standing behind the truck, was hit and knocked to the ground. The license number of the truck was recorded and provided to police. Defendant had rented the truck one day before the robbery. The robbery was captured on video cameras at the store. The prosecution also presented evidence of two prior robberies committed by defendant at businesses under circumstances similar to the Kokho Aquarium robbery. Defendant called a psychologist to explain to the jury how memory operates and the factors that go into the reliability of eyewitness identification.
DISCUSSION
The charges against defendant were the subject of an earlier filing which resulted in dismissal without trial. The refiled charges are the subject of the instant appeal. Defendant represented himself on both filings, up until the scheduled day of his trial, at which point the trial court found defendant had voluntarily waived his right to self-representation and requested the appointment of counsel. Defendant argues he did not knowingly, voluntarily, and intelligently give up his Sixth Amendment right to self-representation. Because of the nature of defendant’s contention, we set forth the events leading up to the appointment of counsel in detail.
Background
Charges stemming from the December 17, 2008 robbery at the Kokho Aquarium were refiled under the current case number. Defendant represented himself at his preliminary hearing on June 29, 2009, appearing before Judge Robert M. Martinez. After being held to answer at the preliminary hearing, the three-count felony information was filed on July 14, 2009.
Defendant, appearing in pro. per., was arraigned on the information on July 14, 2009. Additional motions were scheduled or deferred to the trial court. Trial was set for August 21, 2009, as day 42 of the 60-day statutory period. Defendant and the court discussed the appointment of experts. The court approved appointment of an investigator for defendant. In what became a recurring theme of pretrial hearings, defendant asserted that a DVD recording of the 2008 robbery incident had been altered in 2009. The prosecutor explained defendant had been provided a copy of the DVD.
Defendant appeared on July 31, 2009, before Judge Daniel Buckley, on the filing of the amended information. The prosecutor explained there were two DVDs of the robbery incident—the original, which was not playable because of a virus, and a second copy that was playable. Defendant insisted there had been tampering with the evidence. Judge Buckley explained that defendant’s motion under section 995 would be heard by the trial judge. Fingerprint evidence was ordered disclosed at defendant’s request and an additional $40 in ancillary funds was granted. Defendant made additional court appearances before Judge Buckley on August 26 and September 8, 2009.
Defendant appeared before Judge Mike Camacho for a hearing on defendant’s motion pursuant to Pitchess, supra, 11 Cal.3d 531 on September 14, 2009. Well after the hearing commenced, defendant said he believed he had disqualified Judge Camacho under Code of Civil Procedure section 170.6 (hereafter “section 170.6 challenge”) in the previous filing of this case. Judge Camacho completed the hearing and denied the Pitchess motion without conducting an in camera hearing.
Defendant appeared again before Judge Buckley on January 19, 2010. Defendant had filed a Code of Civil Procedure section 170.3 challenge for cause against Judge Camacho based on his earlier section 170.6 challenge. Judge Buckley took the challenge to Judge Camacho off calendar, ruling that the prior section 170.6 challenge carried over to the refiled case. Defendant stated he had obtained new information to support a Pitchess motion through discovery, again relating to the DVD of the incident. Judge Buckley reaffirmed the denial of defendant’s Pitchess motion. With both sides moving for a continuance of trial, defendant waived time to February 25, 2010, as day 0 of 30 for trial.
Judge Buckley granted defendant an additional $100 in ancillary funds. The prosecutor represented that no fingerprints were recovered after investigation, another topic that would repeatedly resurface before trial. A fingerprint expert and eyewitness identification expert were appointed for defendant.
On March 24, 2010, defendant’s renewed Pitchess motion was referred to Judge Tia Fisher. Judge Fisher granted an in camera hearing of the personnel records of Detective Arthur Valenzuela for prior instances of dishonesty. After the in camera hearing, Judge Fisher ruled that there was no discoverable information in the detective’s personnel file.
Defendant appeared before Judge Thomas Falls on April 9, 2010. Judge Falls expressed the intent to send the case to a courtroom for trial. Defendant made a motion for standby counsel, but Judge Falls advised defendant that standby counsel “is not something you get to ask for.” The People announced ready for trial and produced additional discovery. Defendant told the court he had been in the hospital and did not have his legal files, having been discharged the night before. Noting the age of the case, Judge Falls said the case was “so far out of standard... it’s making me wince.” Defendant’s motion to continue the case was denied.
Defendant told Judge Falls he was “being strong-armed from my pro. per. status.” Judge Falls advised defendant his right to self-representation had been honored, and if he wished to withdraw his waiver of counsel, he would have to do so voluntarily. Defendant repeated that his case was “zero of 30” and he was being “strong-armed.” Judge Falls said defendant was not getting a lawyer and he was not being strong-armed. Judge Falls transferred the case to Department T, without identifying the judge. Defendant asked for the judge’s name in Department T because he “got a [section] 170.6 [challenge], ” but Judge Falls took the position defendant had already used his section 170.6 challenge on Judge Camacho in the first filing of the action.
Defendant appeared in Department T for trial on Friday, April 9, 2010, before Judge George Genesta. The prosecution indicated it was ready for trial, with a five- or six-day time estimate. Defendant said he was not ready for trial as he had been in the hospital all week, had just been discharged, and did not have possession of his legal files. He said he needed to speak with his investigator about subpoenaing witnesses and communicating with experts. Defendant made arguments relating to the allegedly altered DVD and the fingerprint evidence. Judge Genesta stated that the first order of business was for the sheriff to locate defendant’s legal files and then defendant should speak with his investigator about witnesses. Defendant again raised the issue of standby counsel, noting it had been denied by Judge Falls. He said his Faretta rights were “being wrestled away from [him].”
Faretta v. California (1975) 422 U.S. 806.
Judge Genesta explained that the issue was whether defendant wished to continue to represent himself, considering his medical condition and the stress of trial. The court would honor a request for counsel and attempted to clarify what defendant was requesting. Defendant said there were things going on he had never seen before, complaining about the handling of his challenges to Judge Camacho and how he was being told he had no section 170.6 challenge to use in the refiled case. Judge Genesta ruled defendant had an available section 170.6 challenge and pointedly asked if defendant wished to use it against him. Defendant said he would have to go to the library because he had not heard of the judge. Judge Genesta advised defendant he had to decide at that time whether to use the challenge because the case had been assigned to that court for all purposes. Judge Genesta repeated that defendant had an available section 170.6 challenge and would honor it if used now. Defendant refused to directly answer the court, choosing instead to discuss his health, hospital stay, and standby counsel, all of which caused him to feel his pro. per. status was being wrestled away.
Judge Genesta noted that defendant was lucid, responsive, and more than competent to exercise judgment. Rather than respond to the court’s inquiry, defendant referred to the ten-day rule for a section 170.6 challenge. The court reiterated that it would honor a section 170.6 challenge now if filed. Defendant said he would not file it but would object.
Discussion then turned to defendant’s section 995 motion. Judge Genesta explained he would handle all pretrial motions and trial, if defendant wanted him to be the judge. Defendant pressed an argument about when his 995 should be heard. Judge Genesta again noted that defendant was fully competent to decide if he wanted to use his section 170.6 challenge. Defendant said he wanted “to exercise my right to counsel. That’s what I’d like to do. I’d like to exercise my right to counsel.” Judge Genesta asked if defendant was giving up his pro. per. status and asserting his right to counsel. Defendant said he was being forced to give up his pro. per. status and that he asserted his right to counsel because he was in no medical condition to go to trial. Judge Genesta found defendant’s statement too ambiguous to constitute a voluntary relinquishment of his right to self-representation. When again asked by the court as to his intent, defendant said he was exercising his right to counsel because he had just been given discovery and had not received ancillary funds that had been ordered. Defendant objected that he was in no condition for trial and he was being “strong armed.”
Having exhausted the discussion, Judge Genesta ruled defendant understood the proceedings, he had not exercised his section 170.6 challenge when given the opportunity to do so in a timely manner, and the case would go forward on all outstanding motions and jury trial. The court believed defendant should have his legal file before trial so the case was put over to the following Monday, April 12, 2010. When asked again if he wished to voluntarily give up his right to self-representation, defendant said he wanted to exercise his section 170.6 challenge to Judge Genesta. Judge Genesta found the challenge untimely, concluding that when defendant did not get his way, he pulls “out his little magic card... saying, I’m in control here.” Defendant’s repeated attempt to use his section 170.6 challenge was rejected by Judge Genesta.
Judge Genesta again asked defendant if he wanted to continue to represent himself. Defendant objected. The court asked defendant if he was representing himself, but defendant did not answer, which the court took to mean defendant still wished self-representation. Judge Genesta found there had not been a voluntary waiver of defendant’s right to proceed in pro. per. Defendant again tried to assert his untimely section 170.6 challenge. There was further discussion of pending motions, the timing of trial, and complaints by defendant about recent discovery. Judge Genesta ordered the sheriff to look into the status of the location of defendant’s legal file and obtain the materials for defendant.
On April 12, 2010, defendant appeared in court with his legal files. He filed a Code of Civil Procedure section 170.3 challenge with the court, which was summarily denied by Judge Genesta for failure to state legal grounds for disqualification and because it was directed at a judge who had no connection to the case. Defendant’s investigator was present in court and discussed witness coordination. Judge Genesta said he could start trial on April 28 as day 19 of 30 with motions to be heard on April 16. Defendant tried unsuccessfully to revisit the issue of his failed section170.6 challenge from the previous hearing. The court approved another 20 hours of payment for defendant’s investigator.
Judge Genesta considered numerous issues on April 16, 2010. Defendant’s section 995 motion was argued and denied. Defendant attempted unsuccessfully to turn the discussion back to his earlier untimely section 170.6 challenge against Judge Genesta and complained he had not been allowed to argue his section 995 motion. Defendant’s motion for an evidentiary hearing on a nonstatutory motion to dismiss was denied after an inadequate offer of proof. Further consideration was given to defendant’s complaints about fingerprint evidence and other discovery issues, with Judge Genesta finding no violation of due process of law. Defendant withdrew a motion for dismissal for failure to preserve evidence, erroneously claiming it had been previously granted. A motion to dismiss for vindictive prosecution was denied. The prosecution intended to attempt to introduce evidence of prior robberies committed by defendant. Defendant accused Judge Genesta of favoring the prosecution. The court rejected the contention as baseless, explaining that it ordered the prosecutor to file a written motion under Evidence Code section 1101, subdivision (b). Defendant again returned to the subject of his failed section 170.6 challenge to Judge Genesta. Further issues discussed included defendant’s claim evidence was redacted, discovery of the sheriff’s policy and procedures manual, and a request to take judicial notice.
After discussion of this multitude of issues and topics, defendant told the court, “Let’s go to trial.” The prosecution represented it had no exculpatory evidence that had not been disclosed. Judge Genesta reviewed each of defendant’s discovery requests. Discussion was held on what evidence defendant wanted to suppress in his motion under section 1538.5.
At the April 28, 2010 hearing before Judge Genesta, the prosecution announced ready for trial. Judge Genesta indicated that once he completed instructing a jury his court would be open for trial, and he planned to pick defendant’s jury the following Friday. Judge Genesta asked defendant for an explanation of the theory behind his motion to suppress evidence under section 1538.5, ultimately denying the motion without a hearing after concluding defendant was not actually challenging a search or seizure and a section 1538.5 motion did not lie. Defendant stated he did not understand what the court was saying.
The April 28 hearing also included a lengthy discussion between defendant, the prosecutor, and Judge Genesta regarding the handling of the video recording of the incident. The report of defendant’s appointed video expert found no indication of altered or missing video. Defendant’s argument then changed course, asserting that the handling of the video evidence raised a chain of custody issue. After discussion regarding the various ways to authenticate a video recording, the prosecutor stated she did not intend to introduce evidence of the photographic identification.
The prosecution presented a written motion to introduce evidence of other robberies by defendant under Evidence Code section 1101, subdivision (b). Defendant argued for a Trombetta motion regarding fingerprint evidence, but the prosecutor pointed out there were no readable fingerprints in the case. The court explained to defendant that because there were no fingerprints recovered for comparison, there was no evidence to suppress under Trombetta, but defendant was free to present testimony at trial regarding the absence of fingerprint evidence.
Trombetta v. California (1984) 467 U.S. 479.
Judge Genesta stated that defendant had violated the ground rules of conduct, but the court had been respectful and patient. Defendant disagreed, complaining the court had pointed a finger at him; Judge Genesta stated that occurred only after defendant repeatedly interrupted. Judge Genesta explained that he expected defendant not to interrupt the court. Defendant said he was “not accepting” anything, the court was biased, and he was not getting fair rulings. Defendant said the court denied everything, including his timely section 170.6 challenge, and claimed the court had directed the prosecution to bring in evidence of defendant’s other robberies.
Defendant told the bailiff to take him out of the courtroom as he did not wish to be there. Judge Genesta attempted to determine whether defendant was giving up pro. per. status, because defendant had to be in court for rulings. Defendant complained that the prosecutor had only mentioned one uncharged robbery case, but the court had suggested the prosecutor also introduce evidence of other robbery cases, a characterization with which Judge Genesta disagreed. The court granted defendant time to read the People’s motion to admit evidence of three uncharged robberies. When defendant again accused the court of having suggested the prosecution bring in more than one of defendant’s other robberies as evidence, Judge Genesta explained that did not happen as he was not even aware of defendant’s other cases, and no one had ever accused him of acting as a second prosecutor. The prosecutor was ordered to provide copies of discovery on the uncharged cases. After considering defendant’s objections to the uncharged offenses pursuant to Evidence Code section 352 and listening to defendant read a long quotation from a California Supreme Court opinion, the court found the uncharged robberies admissible on the issue of intent.
Defendant repeated that he did not want to be part of the proceedings. Judge Genesta asked if defendant meant he did not wish to be part of the pretrial proceedings or trial, and defendant said his statement applied to both. Judge Genesta asked if defendant was giving up pro. per. status and defendant said, “Yeah, giving it up.” When asked if defendant no longer wanted to represent himself, defendant said, “Yeah, give it up because I see I’m not getting no fair trial. So, yeah.” Judge Genesta again asked if he was voluntarily giving up his pro. per. status, defendant interrupted and said, “No. I’m getting strong-armed for it.” Judge Genesta rejected defendant’s interpretation, stating defendant merely did not like the court’s rulings. Defendant complained that not one thing he has brought up has been granted. Judge Genesta said that was defendant’s opinion, but the court needed to know if defendant was voluntarily giving up the right to be pro. per. in this case. Defendant said, “I’m being—I’m being robbed of it.” The court asked if defendant wished to have a lawyer appointed to represent him. Defendant replied, “Let me see what attorney you appoint.” The court explained that defendant did not get to choose what attorney was appointed for him. Defendant said, “Okay. Yeah.”
Judge Genesta again asked if defendant was requesting the court to appoint a lawyer and giving up his pro. per. status, which the court described as a simple yes or no question. Instead of answering, defendant made reference to the timeliness of his section 170.6 challenge to Judge Genesta, stating he was not getting a “fair or partial trial” because the court told the prosecutor to bring in additional evidence of uncharged crimes. After admonishing defendant for repeating himself, the court again asked if defendant wanted the court to appoint a lawyer to represent him, and by doing so, give up his pro. per. status. Defendant said, “Yeah. You say—yeah. Yeah.” The court accused defendant of playing a game, which defendant denied. Judge Genesta stated defendant was interrupting the court, and the court believed defendant was attempting to taunt the court so that he could claim prejudice. Defendant replied, “It is being prejudiced. I’m not taunting—I already put it on paper. I put it in a declaration.”
Defendant continued to interrupt the court. Judge Genesta decided he would continue with the proceedings as defendant did not want to answer the question. As the court started to return to the issues pending, defendant said, “I give it up—I give it up, the pro. per. status.” Judge Genesta again asked if defendant wished to have the court appoint a lawyer for him, but defendant did not answer. Judge Genesta stated he would let defendant’s words speak for themselves. Defendant said he was “not giving it up to no public defender. But, yeah, giving up my pro. per. status. Yeah.” The court appointed private counsel Charles Uhalley to represent defendant.
The prosecutor asked if the court found defendant voluntarily waived his pro. per. rights. The court made that finding, noting that defendant requested counsel, and although he did not wish to address the issue specifically, defendant had said he wanted a lawyer. Judge Genesta asked if he correctly understood that defendant was voluntarily giving up his pro. per. status, and defendant said, “No.” At this point, Judge Genesta found that defendant was continuing to play a game. Defendant disagreed, stating “I’m not playing no games.” The court replied that defendant is “like a moving target.” For example, defendant was given an opportunity to file a section 170.6 challenge to Judge Genesta, he would not answer whether he wished to do so, but five minutes later he wanted to disqualify the court. The court noted that defendant had again said he wanted to give up his pro. per. status. Instead of discussing the issue before the court, defendant asked why his section 170.6 challenge was not timely. Judge Genesta advised defendant he would not argue law with him and defendant was free to seek a writ. The court again asked, “Do you wish to continue to represent yourself?” Defendant remained silent, which the court described as “more of the back and forth.” Defendant denied playing games, claiming he had been treated unfairly. Judge Genesta stated that the reason defendant wanted to leave the court was because he did not get his way. Defendant said that was not correct, that he had meritorious issues and not one had been granted. The court again explained defendant’s view was not accurate. Defendant responded, “Yeah. Maybe the attorney will get a fair shake than I would here.”
Judge Genesta told defendant that the magic words are, “I wish to voluntarily give up my right to self-representation, and I wish the court to appoint a lawyer for me. Those are the magic words. You can have your way with that. Do you wish to use those magic words, I voluntarily give up my right to represent myself and the court will provide and appoint a private attorney to represent [me].” Defendant answered, “I think—I think that, from what me and the court will be going through, the back-and-forth as far as me being—the way my rulings been going or whatever, it might be in my best interest to let private counsel take over.”
The court continued the inquiry by stating, “First question, do you wish to voluntarily give up your right to represent yourself based upon your personal assessment of your situation and legal predicament?” Defendant answered, “Yeah.” The court asked if defendant wished the court to appoint private counsel to represent him, to which defendant replied, “Yes.” The court asked defendant to state if he was having second thoughts. Defendant was concerned the attorney would be going to trial right away without preparation. Judge Genesta explained the question of whether the attorney was ready to represent defendant was secondary and would not arise unless defendant gave up his pro. per. status and counsel was appointed. After that was accomplished, the court would consider whether counsel was ready and if defendant wanted to waive time.
Defendant said he was not trying to stall, but if the attorney had to go to trial unprepared, defendant would rather represent himself. Judge Genesta told defendant he would not force an unprepared attorney to trial, but the first issue remained whether defendant wanted to give up his pro. per. status and have private counsel appointed. The court was not going to force defendant into waiving his pro. per. right. Defendant again expressed his concern if counsel were unprepared for trial. The court said it would decide trial readiness once counsel met with defendant. The court could not answer defendant’s concern until the issue of appointment of counsel was resolved.
Defendant repeated that he was not trying “to play no game with the court” and he was not trying to stall, but he was familiar with the case and did not want someone stepping in and announcing ready for trial without preparation. Judge Genesta said he was “not appointing [him] a dump truck.” The court indicated it understood defendant’s concern, but it needed to know whether defendant felt it was in his best interest to give up his pro. per. status and have private counsel appointed. When specifically asked, “You voluntarily give up your self-representation at this time, ” defendant answered, “Yeah.” The court then asked if defendant wanted counsel appointed, to which he also said, “Yeah.”
The court told defendant he could not change his mind “tomorrow or the day after.” Defendant said he understood the court was not forcing this on him, but if the attorney comes in Monday and wants to start trial, defendant feels he would be more prepared than the attorney. Defendant would not need a continuance for trial at that point, but he was not prepared to turn the case over to an attorney who said he was ready for trial on Monday. Judge Genesta said they would take up that issue when it arises. The attorney would have to competently represent defendant, which included preparing the case and meeting with defendant. At that point, the court would hear defendant on whether the attorney was ready or how much time was needed for preparation.
The court was satisfied defendant knowingly, intelligently, and voluntarily gave up his pro. per. status and defendant had stated it was in his best interest to have counsel appointed. Uhalley was appointed as counsel for defendant. Defendant was advised that Uhalley had been appointed as standby counsel on the case before it was transferred to Judge Genesta and he already was in possession of the discovery. Defendant stated that Uhalley had never appeared with him, and the court explained he was not supposed to. Defendant responded, “I’m just saying, I’m talking about stand-by. You say–that’s crazy.” The matter was continued to the following day, and trial was ultimately heard with Uhalley serving as defense counsel.
Invalid Conditional Waiver
Defendant first argues the waiver of his right to self-representation was conditional and therefore invalid. Defendant cites to his statement to Judge Genesta that, when told he would not be able to come back and change his mind, “I can’t commit to that, Your Honor.” Citing People v. Marshall (1997) 15 Cal.4th 1, 20, defendant argues he had the constitutional right to counsel or self-representation, a point not in dispute. (Gideon v. Wainwright (1963) 372 U.S. 335, 343-345 [right to counsel]; Faretta v. California (1975) 422 U.S. 806, 835-836 [right to self-representation]; see People v. Crayton (2002) 28 Cal.4th 346, 362 [acknowledging federal constitutional rights to counsel and self-representation].) Relying on People v. Carter (1967) 66 Cal.2d 666, 670, defendant argues a conditional waiver of counsel is not effective unless the court accepts the condition. Without citation of authority, defendant claims the same rule applies to a waiver of self-representation.
Defendant relies on the wrong standard of review. Our Supreme Court has held that the deferential abuse of discretion standard of review applies to a claim that the trial court erred in ruling on a motion to abandon the right of self-representation. (People v. Lawrence (2009) 46 Cal.4th 186, 191-192 (Lawrence); People v. Gallego (1990) 52 Cal.3d 115, 163–164 (Gallego); People v.Elliott (1977) 70 Cal.App.3d 984, 993 (Elliott).) Among the factors a court may consider are “(1) defendant’s prior history in the substitution of counsel and in the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendant’s effectiveness in defending against the charges if required to continue to act as his own attorney.” (Elliott, supra, at pp. 993–994.) In the final analysis, however, “the trial court’s discretion is to be exercised on the totality of the circumstances, not strictly on the listed factors.” (Lawrence, supra, at p. 192; Gallego, supra, at p. 164; People v. Smith (1980) 109 Cal.App.3d 476, 483-484.)
Reviewing the totality of circumstances, the record suggests no abuse of discretion in the trial court’s ruling. Defendant vacillated on the issue of abandoning self-representation, suggesting that was his intent, but then backing off. At various points, he told the trial court he did not want to participate in the proceedings and he wished to give up his right to self-representation. Defendant wanted an attorney appointed but also wanted to know in advance the identity of the attorney. Ultimately, however, he told Judge Genesta he desired the appointment of counsel, while expressing the concern that he did not want counsel who would announce ready for trial before adequate preparation. Judge Genesta assured defendant that would not happen, and no contention is raised on appeal that trial counsel was not fully ready for trial.
Given this record, Judge Genesta could reasonably conclude defendant did, in fact, wish to terminate self-representation and have an attorney appointed, with the understanding the trial court would not force an unprepared attorney to trial. Moreover, even if the premise of defendant’s argument—that a conditional waiver of the right of self representation is invalid—his contention still fails. Judge Genesta’s assured defendant that appointed counsel would not be forced into trial unprepared, and no appellate issue has been tendered claiming counsel was given inadequate preparation time. Defendant’s surrender of his pro. per. rights was not invalid on the basis it was conditional.
Claim of Involuntary Waiver and Coercion
Defendant argues a series of rulings spread over a variety of hearings resulted in a coerced, and therefore involuntary, waiver of defendant’s right to self-representation. The claim of coercion fails.
Defendant argues that judicial coercion commenced at the hearing before Judge Falls on April 9, 2010, when the case was sent to Judge Genesta for trial at a time defendant appeared without his legal materials after having recently been released from the hospital, on what should have been a trial readiness date. According to defendant, Judge Falls also improperly denied his request for standby counsel by telling defendant that was not a motion he gets to make. Defendant protested that he was being “strong-armed” into giving up his pro. per. rights.
Once in Judge Genesta’s court on April 9, defendant argues, the problems mounted that lead to his involuntary relinquishment of his right to self-representation. When Judge Genesta focused on whether defendant wished to represent himself or have counsel appointed, defendant again claimed he was forced to give up his rights. Discovery issues remained. On April 16, defendant argues Judge Genesta denied all defendant’s motions and invited the prosecutor to add prior Evidence code section 1101, subdivision (b) convictions.
On April 28, the day of trial, Judge Genesta denied defendant’s section 1538.5 motion. The trial court became irritated when defendant kept arguing the merits of his motion after the court had ruled. The trial court erroneously denied defendant’s allegations of unfairness as untrue. Judge Genesta ruled that a prior robbery would be admissible at trial.
We reject the contention that defendant did not knowingly and intelligently waive his right to self-representation in favor of the appointment of counsel. The record unmistakably established that defendant knew and understood both his right to counsel and his right to self-representation. Defendant had long asserted his right to self-representation in both the current and prior filings of the case. Defendant was well versed on the law, as demonstrated by the numerous motions he persistently asserted. Judge Genesta repeatedly explained to defendant that if he wanted counsel appointed, he would have to voluntarily decide to give up self-representation.
Similarly without merit is defendant’s claim of coercion. A fair reading of the thorough colloquy between defendant and Judge Genesta belies any inference of coercion. Judge Genesta went to great lengths to satisfy himself that defendant’s decision to accept the appointment of counsel was voluntary. That determination was well within the reasonable discretion of the trial court.
We reject as inaccurate defendant’s claim that Judge Genesta directed the prosecution to file a motion to admit more than one of defendant’s uncharged robberies as evidence of guilt or for impeachment. The record is clear that the court did no more than order the prosecutor to file a written motion on “whatever prior convictions” the prosecutor intended to use. Specifically, Judge Genesta stated, “Well, I am requiring the People to file [a written motion] so I can be prepared for motions in terms of whether [the prosecutor] intend on using any of your prior convictions in addition to [the charged] incident, either for purpose of [Evidence Code section] 1101[, subdivision] (b) or, if you decide to testify, what, if any, of your prior convictions I will allow her to use to impeach you.”
Finally, we reject the argument that defendant’s relinquishment of his right to self-representation was coerced by the rulings made in the court below. While defendant complains about the manner in which various rulings were made, including issues of appointment of standby counsel and admission of uncharged offenses to prove guilt, none of those rulings are raised as substantive error on appeal, and understandably so. Rulings that are not even arguable for appellate purposes do not rise to the level of coercion in defendant’s ultimate decision to accept the appointment of counsel.
Involuntary Waiver Because of Treatment of Standby Counsel Issue
In his final attack on the waiver of his right to self-representation, defendant argues that Judges Falls and Genesta both erroneously told defendant he had no right to move for appointment of standby counsel. Defendant further contends the court hid the fact standby counsel had already been appointed. In defendant’s view, these two factors render his abandonment of the right to self-representation neither knowing nor intelligent.
A defendant who elects self-representation has no constitutional right to standby counsel. (McKaskle v. Wiggins (1984) 465 U.S. 168, 183 [Faretta does not require a trial judge to permit “hybrid” representation]; People v. Blair (2005) 36 Cal.4th 686, 723 [quoting McKaskle and holding there is no constitutional right to standby counsel].) With this understanding of constitutional law, we find nothing improper in the statements of Judges Falls and Genesta regarding defendant’s request for appointment of standby counsel, as he had no such right.
Defendant’s claim that the court “hid” the appointment of standby counsel is of no moment. It has been recommended that when a defendant exercises his right to self-representation, the court should appoint standby counsel “at the time propria persona status is granted.” (People v. Soukomlane (2008) 162 Cal.App.4th 214, 235 (conc. opn. of Cornell, J.).) The record in this case reflects Uhalley was appointed early in the proceedings and had received the discovery. The role of standby counsel is not to assist a defendant. Instead, “his or her task is to wait in readiness to play a role should the occasion arise. Standing by is not defending.” (Littlefield v. Superior Court (1993) 18 Cal.App.4th 856, 860; Dreiling v. Superior Court (2000) 86 Cal.App.4th 380, 382.)
The reality is that defendant received what he wanted in this case—standby counsel was appointed, received the discovery, and was ready to begin trial shortly after defendant gave up his right to self-representation. Nothing in this procedure rendered involuntary defendant’s decision to accept appointed counsel.
Pitchess
Defendant asks this court to independently review the in camera hearing held in response to his motion to disclose confidential peace officer personnel files under Pitchess, supra, 11 Cal.3d 531. (See People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229.) We have completed our review of the in camera hearing and conclude the trial court did not abuse its discretion in ruling there was no discoverable evidence.
DISPOSITION
The judgment is affirmed.
We concur: ARMSTRONG, Acting P.J., MOSK, J.