Opinion
B164303.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. NIJAI REED, Defendant and Appellant.
Patricia Winters, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Nijai Reed appeals from her conviction by jury trial of identity theft (Pen. Code, § 530.5, subd. (a), count 1) and grand theft (§ 484e, subd. (d), count 2). She was sentenced to the upper term of three years as to count 1, plus one year for a prior prison term enhancement, which she admitted. Appellant contends that the trial court erred in denying her request for self-representation.
All further statutory references are to the Penal Code, unless otherwise indicated.
The sentence on count 2 was stayed pursuant to section 654.
Appellant appeared with counsel, Richard Kim, at her preliminary hearing on September 23, 2002. She was charged by information with identity theft and grand theft (acquisition of access card information without consent and with the intent to use it fraudulently). The information also alleged that appellant had served a prior prison term (§ 667.5, subd. (b)). Appellant pleaded not guilty and denied the special allegation on October 7.
Appellant appeared with Kim at a pretrial hearing on November 6, 2002, but failed to appear at a pretrial hearing on November 25. At the readiness hearing on December 5, the day before the trial date, Kim explained that appellant had failed to appear at her last court date because she had been arrested and jailed on November 21 as a result of mis-identification. Kim stated that appellant had announced in court on November 6 that she wished to hire private counsel and that appellant had called a private attorney named James Hodges on December 4. Hodgess secretary had informed Kim that appellant had not retained Hodges, however. Counsel for appellants codefendant, Phillip Lane, noted that "this is the third time that [appellant] has come saying she wanted to get private counsel. The court stated that it did "not intend to accommodate" appellant.
The codefendant was subsequently dismissed from the case in the interest of justice, and remained as a prosecution witness.
On the day of trial, December 6, 2002, the trial court conducted a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) at appellants request. After the other parties had been excluded from the courtroom, appellant stated that she did not want to replace Kim with another public defender, but rather requested "at least one to two weeks to get private counsel." The court commented that the request did not sound like a Marsden motion, but rather a renewal of appellants request for a continuance. The in camera proceedings were concluded.
After the other parties returned to the courtroom, Kim requested a one- to two-week continuance to allow appellant to retain private counsel. The trial court denied the motion. Appellant conferred with Kim, and then Kim informed the court that "[n]ow, it does sound like a Marsden motion. [She] does not want to go to trial with me." The other parties again left the courtroom.
Appellant then stated that Kim had not visited her since she had been in custody, and that she had only talked to Kim just before entering the courtroom. She said that "[t]hat does not give me enough time nor him enough time to prepare for this case." Appellant also complained that Kim had not provided her with "a copy of the case against" her, as she had requested. She stated, "he just has not give — things that I ask him to do for me is he just not have done them for me. And I dont think that Mr. Kim would be in my best interest to be my lawyer for this case. [¶] And if you cannot grant me the — the time that allow — that I need in order to get my own attorney, then I will — I would really want you to grant me the option to be pro per on my own case."
Kim stated that he had not seen appellant in jail because he did not know that she was there until December 5, 2002. He said he did not provide appellant with the police report because she failed to appear in court on November 25. Kim reported that he had gone through the case in detail with appellant, and that he did not believe she had a very strong case because appellants position required her to "call everybody including the co-defendant a liar." Kim stated that appellants defense did not make sense, and that he had told her so. He also stated that the codefendant was "going to call my client a criminal." That meant that they had, "in essence, two adversaries, co-counsel and the D.A. And I made this information known to [appellant] not just on November 6th but before then, September 23rd. [¶] . . . [¶] [Appellant] told me her defense. I listened to it. I told her that it didnt make sense. And I thought that with that defense we would lose."
Appellant then stated that Kim had told her that if he were a juror, he "would convict your ass." She continued, "[b]eing my lawyer that is not something that Im — that I should hear." She conceded that Kim was a good attorney, but said that she did not feel that he was good for her in this case.
The trial court then asked appellant why she had failed to retain private counsel in October, when the information was filed. Appellant responded that she decided she needed private counsel on November 6, 2002. She was unable to get the money together to hire private counsel before she was erroneously arrested, but that "fair is fair, Your Honor, on the — I do have the right to have private counsel represent me." The trial court stated, "You dont have the right, however, to delay these proceedings or be dilatory. [¶] Your request to relieve Mr. Kim is denied. Your request to go pro per is denied as also being untimely." The courts minute order for December 6 indicates that "[d]efendants motion to proceed in pro per is denied as a delaying tactic."
Trial commenced, and appellant was convicted and sentenced. This appeal followed.
DISCUSSION
If a defendant timely requests to proceed pro se, a trial court must permit the defendant to represent himself upon ascertaining that he has voluntarily, intelligently, and unequivocally elected to do so. (People v. Marshall (1997) 15 Cal.4th 1, 20-21; People v. Windham (1977) 19 Cal.3d 121, 127-128 (Windham), citing Faretta v. California (1975) 422 U.S. 806, 836 (Faretta).) A timely request is one made "within a reasonable time prior to the commencement of trial." (Windham, supra, 19 Cal.3d at p. 128.) Erroneous denial of a timely Faretta motion is reversible per se. (People v. Dent (2003) 30 Cal.4th 213, 217.)
When a motion for self-representation is made just before trial, the defendant must show reasonable cause for the lateness of the request. (Windham, supra, 19 Cal.3d at p. 128, fn. 5; People v. Hernandez (1985) 163 Cal.App.3d 645, 654; People v. Ruiz (1983) 142 Cal.App.3d 780, 788.) "The `reasonable time requirement is intended to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice." (People v. Burton (1989) 48 Cal.3d 843, 852.) "[A] defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request. In such a case the motion for self-representation is addressed to the sound discretion of the trial court which should consider relevant factors such as whether or not defense counsel has himself indicated that he is not ready for trial and needs further time for preparation." (Windham, supra, 19 Cal.3d at p. 128, fn. 5.)
A motion for self-representation that is not timely is addressed to the sound discretion of the trial court. (People v. Clark (1992) 3 Cal.4th 41, 98.) In exercising its discretion, the trial court is required to consider such factors as the quality of counsels representation of the defendant, the defendants prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay expected to follow the granting of the motion. (Windham, supra, 19 Cal.3d at p. 128.) The trial court may deny a request for self-representation that is made for the purpose of frustrating the orderly administration of justice. (See People v. Marshall, supra, 15 Cal.4th at p. 23 ["The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendants conduct and other words. . . . A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied"]; and see People v. Howze (2001) 85 Cal.App.4th 1380, 1398 [motion for self-representation made two days before trial was untimely and properly denied on grounds that motion was manipulative and created a risk that the proceedings would be disrupted].) An appellate court reviewing a trial courts denial of a motion for self-representation as untimely must give considerable weight to the trial courts exercise of its discretion and must consider the total circumstances confronting the trial court when the decision was made. (People v. Howze , supra, 85 Cal.App.4th at pp. 1397-1398; People v. Ruiz, supra, 142 Cal.App.3d at p. 792.)
Here, appellants motion for self-representation was made on the day of trial in connection with her second Marsden hearing of the morning. The jury panel was assembled in the hallway outside the courtroom and defense counsel was ready to proceed. Appellant avers that the request is timely because it was made at her earliest opportunity: the disagreement with Kim which led her to seek private counsel and then propria persona status did not arise until November 6, 2002; appellant was wrongly incarcerated November 21; and she unsuccessfully requested a continuance to obtain private counsel December 5. We disagree.
The trial courts denial of appellants request for self-representation as untimely is supported by the record. Kim stated that he had advised appellant that her defense was weak as early as September 23, 2002. Appellant had previously stated her intention to obtain private counsel on November 6. Had she sincerely desired to represent herself, appellant could have made the request for self-representation earlier, even bearing in mind that she was incarcerated beginning November 21. Moreover, "[i]mplicit in the requirement the defendant show reasonable cause for the lateness of the request is that the event(s) which brought about the defendants current request for propria persona status must not only be recent in origin but must also provide a reasonable basis for his dissatisfaction with his attorneys representation. A defendant cannot latch onto any event that happens to occur in close proximity to trial and attempt to use that event to justify the late request." (People v. Hernandez , supra, 163 Cal.App.3d at p. 654.) The fact that Kim gave an honest assessment of the likelihood of an acquittal in advising appellant regarding her defense strategy is not a reasonable ground for appellant to seek self-representation. Nor is appellants frustration over the denial of her motion for a continuance. The last-minute request for self-representation appears to be a tactic for delay.
The trial court, moreover, heard evidence sufficient to constitute implicit consideration of the Windham factors. (See People v. Marshall (1996) 13 Cal.4th 799, 828; People v. Perez (1992) 4 Cal.App.4th 893, 904; People v. Scott (2001) 91 Cal.App.4th 1197, 1206.) Appellant conceded that Kim was competent counsel; appellant had a proclivity to request substitution of counsel (she had made three requests to substitute counsel before the day of trial); appellant requested self-representation out of frustration with her lack of success in obtaining private counsel; the request was made on the day of trial; and while appellant did not request a continuance, she had earlier stated she did not have "enough time . . . to prepare for this case" even with Kim representing her (see People v. Hill (1983) 148 Cal.App.3d 744, 760 ["where the sole consideration supporting granting the untimely Faretta motion is the defendants willingness to forego a continuance (despite his representations that he considers one necessary) the most prudent course would be to deny the Faretta motion rather than condition its grant upon denial of the continuance"]). The trial court could reasonably conclude that the request was made as a delaying tactic. It did not abuse its discretion in denying appellants request.
People v. Herrera (1980) 104 Cal.App.3d 167 and People v. Tyner (1977) 76 Cal.App.3d 352, relied upon by appellant, are distinguishable. In People v. Herrera, supra, the trial court failed to inquire into the factors underlying the request for self-representation. The appellate court stated: "Without such a record we can only speculate that a consideration of these factors may well have demonstrated to the trial judge reasons to exercise his discretion to allow Herrera to proceed in propria persona." (104 Cal.App.3d at p. 174.) The court concluded that the motion was made by the defendant at his earliest opportunity in that he had just been made aware that the public defender would not call witnesses the defendant felt were important to his case. (Id. at p. 173.) In People v. Tyner, supra, the defendant was dissatisfied with his public defender. He told the court on the day of trial, prior to impanelment of the jury, that he wanted to represent himself and was ready to proceed. Defendant explained his theory of defense involving mistaken identification, was ready to cross-examine adverse witnesses, and had prepared 50 questions to that end. (76 Cal.App.3d at p. 354.) The court held that the grant of the request for self-representation would not have obstructed the orderly administration of justice, and that the defendant was denied his constitutional right of self-representation. (Id. at p. 355.) Here, by contrast, appellant made no showing that she was ready to proceed and appeared to be acting out of frustration and with an intent to delay the proceedings.
DISPOSITION
The judgment appealed from is affirmed.
We concur: P. J. BOREN J. & DOI TODD.