Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F06904044-5, Gary D. Hoff, Judge.
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Ardaiz, P.J., Vartabedian, J. and Wiseman, J.
Following his conviction of receiving stolen property (Pen. Code, § 496, subd. (a)) and first degree burglary (§§ 459, 460, subd. (a)), appellant David William Remillard contends that the trial court erroneously denied his various requests for self-representation. For the reasons that follow, we disagree and, accordingly, affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
The facts underlying the convictions are not germane to the issues on appeal, and therefore a recitation of facts is omitted from this opinion.
On July 11, 2006, information No. F06904044-5 was filed in Fresno County Superior Court, charging appellant with various offenses committed on or about May 12, 2006. Appellant subsequently pled not guilty and denied all allegations.
On July 20, 2006, information No. F06902420-9 was filed in Fresno County Superior Court, charging appellant with various offenses committed on or about March 31, 2006. Appellant pled not guilty.
On August 29, 2006, information No. F06905587 was filed in Fresno County Superior Court, charging appellant with offenses committed on or about May 12 and May 23, 2006. Again, appellant pled not guilty.
On January 10, 2007, the court granted the People’s motion to consolidate the cases, and a first amended information was subsequently filed. Appellant pled not guilty, but on February 9, 2007, he withdrew his not guilty plea, pled no contest to all counts, and admitted the allegations pursuant to a plea agreement, which included an indicated maximum state prison term of six years.
On March 19, 2007, the court rejected the indicated sentence, and appellant withdrew his not guilty plea, pled not guilty to all counts, and denied the allegations.
On May 3, 2007, appellant made a motion for substitution of counsel. After the motion was denied, appellant made a motion for self-representation. This motion was also denied, and the trial was confirmed for May 7, 2007.
On May 7, 2007, a second amended information was filed, charging appellant with first degree burglary (§§ 459, 460, subd. (a); counts 1, 3, 7, and 10); receiving stolen property (§ 496, subd. (a); count 2); vehicle theft (Veh. Code, § 10851, subd. (a); count 4); receiving a stolen vehicle (§ 496d, subd. (a); count 5); reckless driving (Veh. Code, § 23103, subd. (a); count 6); and second degree burglary (§§ 459, 460, subd. (b); counts 8 and 9). It was alleged as to counts 3 through 5 and 7 through 10 appellant was on-bail when he committed the crimes (§ 12022.1). Appellant pled not guilty and denied the allegations.
On the same day, jury selection began. Appellant made a motion for substitute counsel. After the court denied the motion, appellant made a motion for self-representation. This motion likewise was denied.
On May 8, 2007, jury selection continued. During the morning session, appellant made a motion for substitute counsel. The court responded it would address that issue at a later time in order to avoid a delay in jury selection. During the afternoon session, appellant requested to represent himself. Initially, the court denied this request, but then decided to review the transcripts and hold a hearing the following morning.
On May 9, 2007, a jury was impaneled to try the case. Outside the presence of the jury, a hearing for substitute counsel took place. The court denied this motion. Appellant’s request for self-representation was denied on the basis of untimeliness.
On May 22, 2007, the jury found appellant guilty of counts 2 and 10, but not guilty of the remaining counts. As to count 10, the jury found the burglary was of the first degree. Appellant admitted the on-bail allegation as to count 10.
On June 20, 2007, appellant was sentenced to state prison for a total term of eight years eight months, calculated as six years on count 10, two years on the on-bail enhancement of count 10, and eight months on count 2.
On July 13, 2007, appellant timely filed a notice of appeal.
DISCUSSION
The United States Supreme Court has held that the Sixth and Fourteenth Amendments to the United States Constitution grant a defendant two mutually exclusive rights: the right to counsel and the right to represent himself or herself. (Faretta v. California (1975) 422 U.S. 806, 807, 819 (Faretta).) Courts must draw every inference against supposing that the defendant wishes to waive the right to counsel. (Brewer v. Williams (1977) 430 U.S. 387, 404.) In order to protect the fundamental constitutional right to counsel, one of the trial court's tasks when confronted with a motion for self-representation is to determine whether the defendant truly desires to represent himself or herself. (People v. Marshall (1997) 15 Cal.4th 1, 22-23 (Marshall).)
A court faced with a motion for self-representation should evaluate whether the request satisfies the following three factors: 1) the defendant knowingly and intelligently makes the request; 2) the request is unequivocal; and 3) the request is timely. (Faretta, supra, 422 U.S. at pp. 835-836; People v. Welch (1999) 20 Cal.4th 701, 729; Marshall, supra, 15 Cal.4th at p. 20; People v. Windham (1977)19 Cal.3d 121, 128.) Because the court should draw every reasonable inference against waiver of the right to counsel, 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. (Marshall, supra, at p. 23.)
We will evaluate each of appellant’s Faretta motions separately.
A. The May 3, 2007 Motion
1. Background
On May 3, 2007, the trial court held a hearing to “consider the defendant’s request for substitution of counsel.” The following ensued:
“[THE COURT:] Sir, what are you asking the Court to do?
“THE DEFENDANT: Well, I asked for Faretta hearing, but I don’t know if I am competent enough to represent myself. If I have to, I mean, I guess I will go about it, but really, I -- I can’t work with Mr. Criego.… [¶]…[¶]
“[THE COURT:] Now, just to clarify, you said two things. You said you were really not comfortable representing yourself, so -- but then you also said you don’t want Mr. Criego as your attorney. Those are two different types of hearings.
“THE DEFENDANT: I understand.
“THE COURT: There is Faretta and Marsden. I understand you to be saying now that [you] are not asking to represent yourself, but you are asking the Court to appoint a new attorney; is that correct?
“THE DEFENDANT: Yes.
“THE COURT: So if you had previously asked to represent yourself, you are withdrawing that request?
“THE DEFENDANT: You have to go one before the other, right?
“THE COURT: No. You are right. You have the right to represent yourself or have an attorney, but I can consider appointing another attorney if you want a new attorney.
“THE DEFENDANT: Yes.
“THE COURT: So you do want an attorney to represent you?
“THE DEFENDANT: Yes. [¶]…[¶]
“THE COURT: … So the Court has had an opportunity to talk to [defendant] and is interpreting [defendant’s] comments that he does not want to represent himself. That’s correct, sir?
“THE DEFENDANT: Yes, your Honor.”
The court then conducted a Marsden hearing. Both appellant and his counsel, Mr. Criego, were heard. The court exercised its discretion by listening to appellant’s reasons for requesting a change of attorneys, and thereby becoming cognizant of the grounds which prompted the request. (See Marsden, supra, 2 Cal.3d at p. 123.) The court determined that Mr. Criego adequately investigated the facts and the law, adequately prepared for trial, and pursued what he (Mr. Criego) considered the best strategy to represent appellant. The court did not find that appellant and Mr. Criego demonstrated such an irreconcilable conflict that ineffective representation would result. (See People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.) This appeal does not question the court’s denial of the Marsden motion.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
After the court ruled, the following colloquy took place:
“THE DEFENDANT: I would rather have a Faretti [sic] hearing.
“THE COURT: We have already had a Faretta hearing, and you had indicated that you are not comfortable representing yourself. You have already established that to this Court, so now
“THE DEFENDANT: I changed my mind.
“THE COURT: At this point, it appears to the Court that your tactics are becoming dilatory.…”
Trial was then confirmed for May 7, 2007.
2. Discussion
To invoke the constitutional right to self-representation, a criminal defendant must make an unequivocal assertion of that right in a timely manner. (People v. Hines (1997) 15 Cal.4th 997, 1028.) “The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant's 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.” (Marshall, supra, 15 Cal.4th at p. 23.) In determining whether a motion for self-representation is unequivocal, a reviewing court is not bound by the trial court’s apparent understanding that the defendant was making a motion for self-representation. (Id. at pp. 23-25.) In People v. Barnett (1998)17 Cal.4th 1044, 1087-1088, the California Supreme Court found a self-representation request made immediately after denial of a Marsden motion not unequivocal, but rather an emotional reaction to the trial court’s denial of a motion for substitute counsel.
We conclude that this Faretta request was not unequivocal, and therefore was properly denied. At the beginning of the May 3, 2007, hearing, appellant stated, “Well, I asked for Faretta hearing, but I don’t know if I am competent enough to represent myself. If I have to, I mean, I guess I will go about it, but really, I -- I can’t work with Mr. Criego.” It is not sufficiently clear if appellant truly desired to both discharge Mr. Criego and represent himself. However, even assuming this statement could be construed as an unequivocal Faretta motion, appellant withdrew the request. The court stated, “So the Court has had an opportunity to talk to [defendant] and is interpreting [defendant’s] comments that he does not want to represent himself. That’s correct, sir?” Appellant responded, “Yes, your Honor.” Appellant decided against a Faretta hearing and pursued only a Marsden hearing.
Only after the court denied the Marsden motion did appellant make a Faretta request. We find that this was an “impulsive response” to the trial court’s refusal to grant appellant’s Marsden request. The Faretta request was made out of anger and frustration in regard to the denied Marsden request. (Marshall, supra, 15Cal.4th at pp. 22-23.) As such, it does not constitute an unequivocal assertion of the right to self-representation. (People v. Barnett, supra, 17 Cal.4th at p. 1087; Jackson v. Ylst (9th Cir. 1990) 921 F.2d 882, 888 [self-representation request deemed an equivocal, emotional reaction to the trial court’s denial of a motion for substitute counsel].) Accordingly, the trial court’s May 3, 2007, denial of a Faretta hearing was proper.
B. The May 7, 2007 Motion
1. Background
During jury selection and outside the presence of the prospective jurors, the court held a Marsden hearing at appellant’s request. This appeal does not question the court’s denial of the Marsden motion.
After the court ruled, the following occurred:
“[THE DEFENDANT:] So it was denied?
“THE COURT: Denied.
“[THE DEFENDANT:] Your Honor.
“THE COURT: Yes.
“[THE DEFENDANT:] That’s the third one that I’ve had and I’d rather represent myself than go to trial with Mr. Criego, so I’ll request a Faretta [sic] hearing.
“THE COURT: That request is being denied. I’m finding that it is, one, not timely raised. In reviewing the records it has been raised and the court’s made some specific findings relative to that, and your request to represent yourself is denied.”
2. Discussion
We determine that this Faretta request was not unequivocal, and therefore was properly denied. Only after the court denied the Marsden motion did appellant reveal his frustration of three denied Marsden requests and proceeded to a Faretta request. We conclude that this was an “impulsive response” to the trial court’s refusal to grant appellant’s Marsden request. The Faretta request was made out of anger and frustration in regard to the denied Marsden request. (Marshall, supra, 15Cal.4th at pp. 22-23.) As such, it does not constitute an unequivocal assertion of the right to self-representation. (People v. Barnett, supra, 17 Cal.4th at p. 1087; Jackson v. Ylst, supra, 921 F.2d at p. 888.) Accordingly, the trial court’s May 7, 2007, denial of a Faretta hearing was proper.
Although the trial court cited timeliness as a basis for its denial of the motion, we need not make a determination with respect to timeliness because we have already ruled the Faretta motion was not unequivocal.
C. The May 8-9, 2007Motion
1. Background
At the end of the May 8, 2007, voir dire procedures, appellant requested that the court grant a Faretta hearing. Appellant claimed that he was never given such a hearing. The court stated that it believed the record indicated a Faretta hearing had taken place, but would review the record and hold a hearing the next morning. The court gave appellant a copy of a “Petition and Order to Proceed in Propria Persona Advisement, Waiver of Rights, Consequences of Waiver” form, which was dated May 3, 2007, signed by appellant, and filed on May 22, 2007. The court advised appellant that if it were to grant the Faretta motion, no delay in the trial proceedings would be permitted. When the court asked if appellant would be prepared for trial, appellant responded, “I don’t see how I could, but I mean, if you’re forcing me to, then yeah.” The following morning, May 9, the court inquired whether appellant still felt as though he would need time to prepare for trial if he were to represent himself. Appellant responded that he would need time to prepare.
The court reviewed the transcript from the May 3, 2007, hearing, as well as various motions and requests appellant made after the case was assigned for trial. The court denied the Faretta request on the basis that the request was untimely and if granted, would result in an unnecessary delay in the trial. In making its determination, the court noted this request was made on the third day of jury selection in a trial estimated to last a week and a half, found Mr. Criego’s preparation and strategy were of sufficient quality to represent appellant, and noted appellant had had an extension to retain private counsel but failed to do so. (See People v. Windham, supra, 19 Cal.3d at p. 128.)
2. Discussion
In order to invoke the constitutionally mandated unconditional right of self-representation, a defendant must assert that right within a reasonable time prior to trial. This requirement serves to prevent a defendant from misusing the motion to delay unjustifiably the trial or to obstruct the orderly administration of justice. (People v. Valdez (2004) 32 Cal.4th 73, 102.) If the motion is untimely—i.e., not asserted within a reasonable time prior to trial—the defendant has the burden of justifying the delay. (People v. Horton (1995) 11 Cal.4th 1068, 1110.)
If a motion for self-representation is not timely made prior to trial, self-representation is no longer a matter of right but is subject to the trial court’s discretion. (People v. Jenkins (2000) 22 Cal.4th 900, 959.) In exercising this discretion, the 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.”’” (Ibid., quoting People v. Windham, supra, 19 Cal.3d at p. 128.)
The trial court’s denial of appellant’s request to represent himself was proper due to the untimeliness of the request. The Faretta request was made on the third day of jury selection and after an extension of the trial date. The determination of timeliness became a matter of discretion for the trial court because trial proceedings had commenced. The trial court considered the pertinent factors, and its determination that the request was untimely constituted a proper exercise of its discretion.
DISPOSITION
The judgment is affirmed.