Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. LA051198
PERREN, J.
Dawnisse Smith appeals the judgment entered after a jury convicted her of petty theft with a prior conviction (Pen. Code, § 666). Smith admitted suffering a prior strike conviction within the meaning of section 667, subdivisions (b) through (i). She was sentenced to four years in state prison, consisting of the midterm of two years doubled for the strike prior. Smith's probation was revoked in another case, and she was sentenced to an additional eight months in state prison, for a total state prison term of four years eight months. She contends the trial court violated her constitutional right to self-representation. We affirm.
Further statutory references are to the Penal Code.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On the afternoon of January 9, 2006, a loss prevention officer at Marshalls department store in Encino observed Smith remove the price tag from a leather jacket, place the tag in her pocket, and fold the coat over her arm as if it belonged to her. After a few minutes, Smith left the store with the jacket. The loss prevention officer approached Smith as she was walking toward her car and asked her if she had any unpaid merchandise. She responded, "Okay. This is what I have" and handed him the jacket. She was detained in the store's loss prevention office, and the police were called. Smith volunteered that she had a small amount of marijuana in her right front pocket, and the arresting officer confiscated it during a patdown search. After arriving at the police station, Smith asked to use the rest room. As she stood up from the toilet, a price tag from Marshall's fell from her body to the ground. The tag was retrieved and booked into evidence.
At trial, the jury viewed a videotape from the store's surveillance camera showing all of Smith's actions.
DISCUSSION
On March 15, 2006, Smith appeared in court with her attorney, Deputy Public Defender Lisa Strassner, and stated, "I would like Ms. Strassner to step down. [¶] Today is my fifth court date. I've had four different attorneys. Nobody is interested in my life. [¶] She—she just had the nerve to come out and tell me she just ended a trial and she's starting another one. [¶] She won't look at me in my face. She's talking through glass. [¶] I would like to go pro per." Ms. Strassner responded, "[t]his is a Marsden." After the prosecutor left the courtroom, Smith began speaking rapidly, and the court had to tell her to slow down. Smith complained that her attorney was not prepared to proceed with the trial, and believed she had misrepresented to her that the delay was necessary to obtain a copy of the video surveillance tape of the incident. She also complained that counsel had refused to give her a copy of the police report and the preliminary hearing transcript, and stated, "I don't feel like—I'm a very spiritual woman. And I feel very—I don't get a good feeling from her at all. I don't feel like my freedom is at all important to her. [¶] She tells me today, she has just ended a trial, and she's beginning another one. My life is just as important as that." She added: "This is my life. This is my fourth attorney. I asked her when I came here—when we came February 14th, I looked her in the eyes, and I said, 'Please, I need to know you're for me.' [¶] I don't get that feeling. I don’t feel comfortable with her." The court asked Smith if there was anything else she wanted to say, and she responded, "That I would like to go pro per."
People v. Marsden (1970) 2 Cal.3d 118.
The court responded: "We're going to get to that. The two issues can't be related. I don't want you to tell me 'I want to be my own attorney because I don't like her.' [¶] If you're going to be your own attorney, I want you to be your own attorney, because it doesn't matter if you had Johnny Cochran, may he rest in peace, or the greatest lawyer who you respect sitting next to you, and you still want to be your own lawyer. That's one thing. [¶] But saying, 'I want to be my own lawyer because I don't like the one the public defender's office has assigned to me,' that's something different. [¶] Which is it? 'I want to be my own lawyer' or 'I want to be my own lawyer because I don't like Ms. Strassner being my lawyer'?" Smith replied: "I want to be my own lawyer because the county has assigned me four attorneys, and none of them has done absolutely one thing." Based on that response, the court denied Smith's request "because that doesn't show me that you really want to be your own lawyer."
The court then asked Ms. Strassner to explain what she was doing on the case. Ms. Strassner responded that she was Smith's third attorney, not her fourth. The case was originally assigned to one deputy public defender for the preliminary hearing, then assigned another deputy who was subsequently transferred. Ms. Strassner was assigned to the case on February 14th. She had just received a copy of the surveillance tape, and had yet to view it. She also related a telephone conversation in which Smith had told her that there were discrepancies between the witnesses' testimony at the preliminary hearing and what was depicted on the tape. When Ms. Strassner told Smith she needed at least two weeks to view the tape and prepare for trial, "she indicated that she didn't believe I was working in her best interest and that she wanted a Marsden motion."
The court then stated: "Ms. Smith, I will give you the last word. [¶] You just heard she just got the videotape today. She said she's going to look at it and see if there's those discrepancies you pointed out. [¶] Why won't you trust her over the next two weeks she'll do that?" Smith responded that she did not understand why Ms. Strassner needed two weeks to view the videotape. The court reminded her that she had already given up her right to a speedy trial, and asked, "Now that you heard what she had to say about the videotape, are you a little more trusting of Ms. Strassner?" Smith responded, "I'm just emotionally upset. I have an eight-year-old daughter that asks me constantly when I'm coming home." The court thereafter denied Smith's request to relieve Ms. Strassner as her attorney.
Smith's sole contention on appeal is that the trial court violated her right to self-representation pursuant to Faretta v. California (1975) 422 U.S. 806. We disagree. The record demonstrates that Smith's request to represent herself was merely an emotional response borne of her frustration with the pace of the proceedings, and was therefore equivocal. Moreover, Smith effectively abandoned her request by failing to reassert it after receiving assurances from the court that Ms. Strassner was acting in her best interests by seeking to continue the matter.
Criminal defendants have a constitutional right to represent themselves. (Faretta v. California, supra, 422 U.S. at pp. 818-836; People v. Marshall (1997) 15 Cal.4th 1, 20.) "To invoke the constitutional right to self-representation, a criminal defendant must make an unequivocal assertion of that right in a timely manner. [Citation.] '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. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant's conduct or words reflecting ambivalence about self-representation may support the court's decision to deny the defendant's motion. 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.' [Citation.] A reviewing court, in determining whether a motion for self-representation is unequivocal, is not bound by the trial court's apparent understanding that the defendant was making a motion for self-representation. [Citation.]" (People v. Barnett (1998) 17 Cal.4th 1044, 1087.) In evaluating whether a defendant's request for self-representation is unequivocal, "[c]ourts must indulge every reasonable inference against waiver of the right to counsel. [Citation.]" (Marshall, supra, at p. 20.)
A request for self-representation "made under the cloud of emotion" may be denied, even if the defendant has plainly stated that he or she seeks to proceed pro se. (People v. Marshall, supra, 15 Cal.4th at p. 21.) Reviewing courts consider the entire record de novo in making this determination. (Id., at pp. 21-22; People v. Stanley (2006) 39 Cal.4th 913, 932.) "[S]ubsequent events and circumstances may shed light on the question whether a defendant's interjection of a brief and impulsive request to proceed pro se actually represents a knowing, voluntary, and unequivocal request for self-representation or, instead, a temporary reaction to an adverse circumstance." (Marshall, supra, at pp. 24-25, fn. 2.) A defendant's failure to renew a request for self-representation may be considered as evidence that the request was either equivocal or has been abandoned. (Id., at p. 26, fn. 3; Stanley, supra, at p. 933.)
A review of Smith's comments compel the conclusion that her request was made under a cloud of emotion created by her frustration with her predicament, and was not motivated by any sincere desire to proceed without an attorney. Indeed, when the court asked if Smith would trust Ms. Strassner after hearing her explain why she wanted to continue the matter, Smith responded, "I'm just emotionally upset. I have an eight-year-old daughter that asks me constantly when I'm coming home." Although Smith made this statement after the court had denied her request, the statement is nevertheless relevant in evaluating whether Smith's request to represent herself was equivocal. (People v. Marshall, supra, 15 Cal.4th at pp. 24-25, fn. 2.) Moreover, in adjudicating a facial request for self-representation, the court must evaluate not only what the defendant said, but also how it was said. (People v. Barnett, supra, 17 Cal.4th at p. 1087.) While we have no occasion to review Smith's demeanor at the time of the hearing, the fact that the court had to tell Smith to "slow down" because she was talking too fast supports the inference that her request was motivated by anger and emotion, as opposed to a reasoned and rational response to the situation. It is also noteworthy that instead of renewing her request after receiving assurances regarding the progress of the case, Smith lamented that she was "emotionally upset" about the fact that she was separated from her daughter. Viewed in context, this comment indicates that Smith's request to represent herself was not only equivocal, but that she had abandoned it after further reflection. (Marshall, supra, at p. 26, fn. 3; People v. Stanley, supra, 39 Cal.4th at p. 933.)
In challenging the denial of her request, Smith also complains that the court construed her remarks as a combined request for self-representation and substitution of counsel. In reviewing the propriety of the court's ruling, however, we are not bound by the court's understanding of the nature of the request. (People v. Barnett, supra, 17 Cal.4th at p. 1087.) In any event, the court was obligated to conduct a Marsden hearing. Smith told Ms. Strassner that she wanted to replace her with a different attorney, not that she wanted to proceed without one. Contrary to Smith's claim, the record does not indicate that counsel "misunderstood" the nature her request. There is no basis for us to reject Ms. Strassner's representations regarding a conversation with her client that took place off the record.
Smith also cites a number of federal cases standing for the proposition that a motion for self-representation is not rendered equivocal merely by the fact that it is motivated by the defendant's dissatisfaction with her attorney. (See, e.g., Buhl v. Cooksey (3d Cir. 2000) 233 F.3d 783; United States v. Hernandez (9th Cir. 2000) 203 F.3d 614.) Even if we were bound by this authority, which we are not (People v. Zapien (1993) 4 Cal.4th 929, 989), it is inapposite. Drawing all reasonable inferences against the waiver of the right to counsel, Smith's comments demonstrate that her request to proceed without an attorney was made under a passing cloud of emotion, as opposed to a dispassionate, unequivocal statement of dissatisfaction with the public defender office's representation.
The judgment is affirmed.
We concur:
YEGAN, Acting P.J.
COFFEE, J.
Martin L. Herscovitz, Judge, Superior Court County of Los Angeles
Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.