Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Nos. SWF016524 & RIF120279, Michael S. Hider (Retired judge of the Merced Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), and John G. O’Rourke (Retired judge of the Kings Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Judges.
Kurt David Hermansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr. and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant’s sole contention on appeal is that the trial court prejudicially erred in denying his request for self-representation. We reject this contention and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
After pleading guilty to possession of marijuana for sale in violation of Health and Safety Code section 11359, defendant was granted 36 months of probation (case No. RIF120279 or the marijuana possession case). However, a new felony complaint was filed against defendant on June 1, 2005, alleging that he threatened an executive officer in violation of Penal Code section 69 and was under the influence of a controlled substance in violation of Health and Safety Code section 11550, subdivision (a) (case No. RIF123994). As a result of these new charges, defendant’s probation was summarily revoked in the marijuana possession case, and he was retained in custody. While defendant was in custody at the Southwest Detention Center, he was charged on May 24, 2006, in a third case—unlawful possession of “pruno” while in custody in violation of Penal Code section 4573.8 (case No. SWF016524 or the pruno case). It was also alleged defendant had one prior conviction for domestic violence within the meaning of Penal Code section 667.5, subdivision (b).
According to defendant, “pruno” is a term used for a mixture of substances, such as bread, water, fruit, and sugar, which can produce ethyl alcohol when allowed to ferment.
The present appeal involves only the revocation of probation in the marijuana possession case and the pruno case. These two matters proceeded on the same track. The third case, RIF123994, progressed separately and ahead of the other two. A jury convicted defendant on both counts alleged in case No. RIF123994, and the trial court sentenced defendant to a term of three years in state prison. Defendant appealed. In a separate opinion, we considered the appeal and affirmed the judgment. (People v. Rich (Feb. 8, 2008, E042095) [nonpub. opn.].)
The pruno case was tried to a jury beginning March 7, 2007. On March 9, 2007, the jury found defendant guilty as charged. Based on the evidence presented at trial, the court also found defendant violated his probation in the marijuana possession case. The court sentenced defendant to two years in state prison in the marijuana possession case. In the pruno case, the court imposed eight months, plus a consecutive term of one year as a result of the prison prior, for a total of one year eight months in state prison, to be served consecutively to the sentence imposed in the marijuana possession case.
DISCUSSION
Defendant contends the trial court abused its discretion because it denied his request for self-representation on an impermissible ground without considering relevant factors and without making an adequate record for review. Defendant believes the record shows the trial court denied his request solely because it concluded he was not intelligent or trained enough to represent himself adequately. He also argues there was no legitimate reason for denying his request. As a result, he claims prejudicial error and argues we should reverse his conviction in the pruno case, as well as the revocation of his probation in the marijuana possession case.
Under the federal Constitution, a criminal defendant has an absolute right to represent himself at trial if he voluntarily and intelligently decides to do so. (Faretta v. California (1975) 422 U.S. 806, 835-836 (Faretta).) However, “ ‘ “[w]hen a motion for self-representation is not made in a timely fashion prior to trial, self-representation no longer is a matter of right but is subject to the trial court’s discretion.” ’ ” (People v. Valdez (2004) 32 Cal.4th 73, 103.) “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.)
The purpose of the timeliness requirement is to prevent a defendant from misusing a request for self-representation “to unjustifiably delay a scheduled trial or to obstruct the orderly administration of justice.” (People v. Windham (1977) 19 Cal.3d 121, 128, fn. 5 (Windham).) In determining whether to grant or deny an untimely motion, the court should consider such factors 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.” (Id. at p. 128.) A trial court may consider any prior disruptive conduct by the defendant, such as a failure to control emotions or a refusal to come to court, as indicative he is likely to act in a disruptive manner during future proceedings if the motion is granted. (People v. Jenkins (2000) 22 Cal.4th 900, 962-963.)
As defendant contends, a trial court should inquire sua sponte into the factors underlying a defendant’s untimely request for self-representation in order to insure an adequate record. (Windham, supra, 19 Cal.3d at p. 128.) Here, the trial court did not specifically cite the Windham factors or state its reason for denying defendant’s request on the record. However, it is not mandatory for the court to “state the reasons underlying a decision to deny a motion for self-representation which is based on non constitutional grounds.” (Id. at p. 129, fn. 6.) The denial of an untimely request for self-representation is reviewed for abuse of discretion. (Id. at p. 129.) Even if the trial court denied the motion “for an improper reason,” we will uphold the ruling if the record as a whole establishes defendant’s request could properly be denied on other grounds. (People v. Dent (2003) 30 Cal.4th 213, 218.) “Where . . . the reasons for the denial of the motion are absolutely clear on the record, . . . there will be no detrimental effect on the justice system for the appellate court to draw the inferences necessarily implied by the court’s ruling.” (People v. Perez (1992) 4 Cal.App.4th 893, 905, fn. 10.)
Defendant believes the record shows he was seeking self-representation after the commencement of trial for legitimate reasons because he was dissatisfied with counsel’s representation. Because he did not seek a continuance and felt he was prepared and able to handle his own representation, he argues there is no evidence suggesting he was attempting to disrupt or delay the trial. If he wanted to disrupt the proceedings, defendant contends he would have simply chosen to remain in the courtroom after the court denied his request. We disagree.
In our view, defendant’s request for self-representation, made after the commencement of trial, was properly denied because the record clearly demonstrates defendant’s request was part of an ongoing attempt to unreasonably disrupt and delay the proceedings. Trial began on March 7, 2007, with the probation revocation matter set to follow. On this first day of trial, defendant made it clear he was angry, frustrated, and more interested in disrupting and delaying the proceedings than he was in protecting his rights and presenting a defense. When the case was ready to be called, the court was advised defendant had refused to put on civilian clothing and to attend his trial. Noting the number of prior continuances, the court stated there would be no more extensions absent a showing of “good cause” and sent defendant’s attorney to talk to him. The attorney returned and stated defendant was refusing to dress, to attend trial, to plead guilty, or to accept any sort of plea bargain. In response, the court said defendant “is going to have to come into court right now and tell me that himself.” When defendant arrived in the courtroom, he claimed he “never talked to [his attorney] about starting trial.” He wanted to know why “[a]ll of a sudden they are bringing clothes to me” and stated, “[w]e’re not ready to go to jury trial. We’re not even ready. I didn’t even agree to it.”
By contrast, when asked for their respective positions, both the prosecutor and defendant’s trial attorney stated they were ready to proceed and confirmed defendant was well aware of the date set for trial based on prior hearings and discussions with counsel. The court called for the jury to be brought in, and defendant stated, “Take me out. I don’t want to stay here.” Counsel objected to having the jury impaneled while defendant was wearing prison garb and shackles, but defendant said, “I’m staying in them. Dude, the clothes you brought me, I didn’t ask for it.” The court explained, “We give you clothes so you don’t look like you’re in custody.” Defendant responded, “I know how this goes. I’ve been through it already.” Counsel indicated defendant’s family could be contacted to make arrangements for defendant to have his own clothes for the next day, and the court told counsel to “contact them tonight.” Defendant decided to remain in prison garb and shackles while the jury was impaneled, and the court concluded defendant’s waiver was knowing and intelligent. Jury selection began and was completed.
When trial resumed the next day, March 8, 2007, it was once again apparent defendant was still angry and was looking for ways to disrupt and delay the proceedings. Before the jury was seated, the court was advised defendant was once again refusing to dress in civilian clothes and to attend trial. Counsel indicated she had spoken with defendant and he was unhappy because she called his mother to get his clothing as the court had directed. Defendant also stated he wanted to address the court. When he was brought into the courtroom, defendant expressed anger because counsel had contacted his mother, who was sick, in order to obtain defendant’s own clothing for court. The court apologized, explained why it directed counsel to contact his family about his clothing, and asked defendant “what do you want to do today?” Defendant said, “If you want to continue without me, don’t you have to have the psych evaluation, whether I’m competent, incompetent . . . .” When the court stated it did not believe defendant was incompetent, defendant said, “I can’t sit here and deal with this. If you want to go on without me, go on without me; but I can’t deal with it.”
The court explained it might be prejudicial to defendant if he was not there and asked defendant if he had anything else to say. Defendant responded, “No. I’m not going to trial with her as my attorney. [¶] She can be fired. I need new counsel.” The court stated, “It’s too late now. Can’t do that today.” Defendant told the court he “just talked to somebody downstairs” and “you’re supposed to do, have a psych evaluation.” The court advised there was no reason for an evaluation. At this point, defense counsel interjected, stating “I believe [defendant] has a right to represent himself if that’s what he’s choosing to do. [¶] We have to close the courtroom and do that if the Court wants to do that.” Tellingly, defendant retorted, “I can do that.” Thus, it is clear defendant was determined to disrupt the proceedings in any way possible by attempting to force the need for a psychological evaluation. When that did not work, he demanded a new attorney. He did not even hint at self-representation until the option was suggested by his attorney’s extemporaneous remark. At this point, the trial court could reasonably conclude defendant’s request for self-representation was not a sincere one, but another attempt at disruption and delay. Nor was defendant’s request for self-representation a clear and unequivocal one in that he had just stated, “I need new counsel.”
Thereafter, the court asked defendant, “What would you like to do?” Defendant said, “I’ll represent myself before I’ll have her represent me. I can do that. I don’t care.” The court then cleared the courtroom for a closed hearing on self-representation. During the closed hearing, the trial court first asked defendant whether he had ever represented himself before, and whether he knew the court rules or had access to the books containing the rules of court. Defendant responded in the negative as to each of the court’s questions, thereby suggesting a present inability to abide by courtroom rules. The court went on to ask defendant questions about his background and education, whether he knew what a hearsay objection was, and whether he knew how to request jury instructions.
During the closed hearing, the court also encouraged defendant to work with his “qualified” attorney and told defendant he was not qualified to represent himself. In defendant’s view, the court’s comments and this line of questioning indicate the court improperly decided to deny his request for self-representation solely because it did not believe he was “intelligent or trained enough to adequately represent himself.” As defendant contends, a defendant’s ability to competently represent himself is not a proper factor for a court to consider when deciding whether to grant or deny a timely request for self-representation. (People v. Welch (1999) 20 Cal.4th 701, 732-734.) However, it is also true that a defendant seeking self-representation “ ‘should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” ’ ” (Id. at p. 733, quoting Faretta, supra, 422 U.S. at p. 835.) In our view, the court’s comments and line of questioning were intended to elicit whether defendant really understood the serious consequences of a decision to waive representation by counsel and to attempt to convince defendant it would be in his best interest to withdraw his request and to continue with his present counsel who was “ready for trial” and who knew how to proceed in putting forth his best defense.
Although defendant did not request a continuance during the closed hearing and stated he knew his case “front and back,” his responses to the court’s questions suggested he would need additional time to prepare and to become familiar with the rules of court if permitted to represent himself, which would have caused a further delay of a trial already in progress. In a confusing twist of tactics, defendant also told the court during the closed hearing that his father was going to send him “private counsel,” as well as books through the mail, which had not yet arrived. At this stage of the proceedings and in light of the defendant’s prior disruptive behavior, “[t]he circumstance that defendant did not seek a continuance is not determinative.” (Jenkins, supra, 22 Cal.4th at p. 963.) This is because the trial court had a reasonable basis for concluding defendant would persist in his attempts to disrupt and delay the proceedings, particularly if he was allowed self-representation. In other words, based on defendant’s prior behavior, the trial court was entitled to anticipate how defendant would conduct himself in the courtroom if his request for self-representation was granted. Based on defendant’s prior behavior, the trial court had reason to believe defendant’s next step could very well be to seek a continuance, and then perhaps to request a new attorney or to substitute private for appointed counsel, or to refuse to sit in the courtroom whenever the court displeased or ruled against him, and so forth. Understandably, the court denied the request and told defendant there was no time to substitute another attorney “since we have already selected a jury.” Tellingly, defendant decided not to remain in the courtroom for his trial after the court ruled against him.
Defendant’s appellate counsel represented during oral argument that the right to self-representation was so important to defendant that he decided not to attend trial after the court declined to let him exercise his right. In our view, defendant’s decision not to remain in the courtroom for trial after the court ruled against him is simply confirmation that the trial court was justified in denying defendant’s request to represent himself because, once again, it is predictive of future behavior. By refusing to appear in the courtroom whenever the court displeased him or ruled against him, a defendant representing himself would have the ability to bring his trial to a standstill. “The judges of our courts are entitled to conduct their proceedings in an orderly and just fashion, and are not required to place their dockets and courtrooms at the mercy of obstreperous and unruly defendants . . . .” (People v. Howze (2001) 85 Cal.App.4th 1380, 1398.)
During oral argument, defendant’s appellate counsel argued that the standard for denying a request for self-representation based on disruptive conduct is extremely high, and defendant’s conduct could not be considered disruptive enough under this very high standard to justify denying his request for self-representation. To support his argument, defendant’s appellate counsel referred us to Welch, supra, 20 Cal.4th 701 and In re Angel W. (2001) 93 Cal.App.4th 1074. Both of these cases are procedurally and factually distinguishable. Neither of these cases involved an untimely request for self-representation after the start of a criminal trial.
In re Angel W. was an appeal by a mother from orders issued in a dependency proceeding terminating her parental rights and denying her request for self-representation. The appellate court concluded the mother’s right to counsel and to self-representation were statutorily rather than constitutionally based and also stated the mother could “waive counsel at any point.” (Id. at pp. 1082-1083.) The appellate court in In re Angel W. stated that, “The possibility of disruption or delay . . . exists to some degree with virtually all pro se litigants and the mere possibility alone is not a sufficient ground to deny self-representation.” (In re Angel W., supra, 93 Cal.App.4th at p. 1085.) Drawing on constitutional principles as set forth in Welch and applying them in a statutory setting, the appellate court in Angel W. stated the juvenile court could only exercise its discretion to deny self-representation “when the pro se litigant ‘is and will remain’ so disruptive as to significantly delay the proceedings or render them meaningless and negatively impact the rights of the minor in a prompt and fair hearing.” (Ibid.) Applying this very high standard, the appellate court in In re Angel W. concluded the mother’s conduct was not disruptive enough to justify the court’s denial of her timely request for self-representation. (Ibid.) The record indicated the mother had been attending court hearings for two years without being disruptive but had a single emotional outburst during the permanency hearing. She regained her composure following a brief recess, recognized her conduct was inappropriate and apologized, and was respectful and cooperative thereafter. (Ibid.) Here, the court denied an untimely request for self-representation after a jury had already been selected in a criminal trial and after two days of disruptive behavior which indicated defendant was highly likely to continue to be disruptive if the court granted his request to proceed without counsel.
In Welch, the defendant’s request for self-representation was made “some three and one-half months before the start of jury selection.” (Welch, supra, 20 Cal.4th at p. 729.) In deciding whether to deny a timely request for self-representation, our Supreme Court stated that “a trial court must undertake the task of deciding whether a defendant is and will remain so disruptive, obstreperous, disobedient, disrespectful or obstructionist in his or her actions or words as to preclude the exercise of the right to self-representation.” (Welch, supra, 20 Cal.4th at p. 735.) The Supreme Court concluded that the defendant’s timely motion for self-representation was properly denied, because the defendant had a long history of disruptive behavior before the motion was made. (Ibid.) It is true that the behavior exhibited by the defendant in Welch was comparatively worse and occurred over a greater period of time than that displayed by defendant in this case. However, as we read Windham, the defendant’s constitutional right to invoke his right to self-representation is qualified by a timeliness requirement, so a trial court has broader discretion to deny an untimely request for self-representation than one made in a timely manner. “[W]hen a motion to proceed pro se is timely interposed, a trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be. . . . [Citation.] However, once a defendant has chosen to proceed to trial represented by counsel, demands by such defendant that he be permitted to discharge his attorney and assume the defendant himself shall be addressed to the sound discretion of the court.” (Windham, supra, 19 Cal.3d at p. 128 (italics added).)
Based on the record before us, we conclude defendant’s conduct on the first and second days of trial provide a reasonable basis for the trial court’s decision to deny defendant’s request for self-representation. The record contains more than enough evidence to show defendant was unwilling and/or unable to conform to the rules of court or courtroom protocol and would have continued to delay and to be unacceptably disruptive if permitted to proceed unrepresented by counsel. We therefore conclude the trial court did not abuse its discretion in denying defendant’s request for self-representation.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, J. GAUT, J.