Opinion
B319674
09-18-2023
THE PEOPLE, Plaintiff and Respondent, v. MELISSA BURANASOMBATI, Defendant and Appellant.
Maxine Weksler, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. MA076063 Kathleen Blanchard, Judge. Affirmed.
Maxine Weksler, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
BENDIX, J.
A jury convicted defendant Melissa Buranasombati of the second degree murder of Edward Cole and found true she used a knife in the killing. Defendant challenges the conviction arguing that, after the People finished their case, she "moved" to discharge her retained counsel and the trial court erred in not allowing her to represent herself, not appointing the public defender (her prior counsel), or not permitting her to retain new counsel. Defendant's challenges lack merit because she never requested self-representation or new counsel, whether appointed or retained. We affirm the judgment.
BACKGROUND
On March 6, 2020, the People charged defendant with one count of murder and further alleged she personally used a deadly weapon. The victim, Edward Cole, died of a stab wound to the chest. A public defender represented defendant at the preliminary hearing. On November 17, 2020, private counsel, Vicken Hagopian, substituted in as counsel for defendant.
A jury trial commenced on November 8, 2021. At trial, defendant's friend testified that on April 9, 2019, he lived with defendant and Cole, who were in a romantic relationship. On that day, defendant and Cole argued and defendant shoved Cole while both were in their bedroom. Cole pushed defendant onto the bed and then walked to the garage. Defendant went to the kitchen and then followed Cole to the garage. Defendant's friend saw defendant "swing" at Cole causing Cole to bleed from his chest. Defendant's son testified that he saw defendant take a knife from the kitchen before going to the garage. Defendant's former boyfriend testified that in the past, defendant had attacked him multiple times, including with a knife, gun, scissors, fork, or baseball bat.
After the People rested, defense counsel informed the trial court, "[W]e're still contemplating whether she [defendant] is going to testify or not." After the court gave counsel an opportunity to confer with his client, defense counsel stated, "We're having a debate whether she should testify or not. We're undecided right now." Counsel then clarified that defendant was "undecided" and that counsel believed she should not testify.
The court told defendant, "[T]his choice [whether to testify] is yours and yours alone." The court added, "You have the absolute right to testify on your own behalf if you choose to do so." The court further informed defendant, "You also have the right to remain silent; meaning nobody could force you to testify against yourself."
The court continued, "I have given you some[ ]time today, but quite frankly, this case has been in the superior court now for over two years, so I definitely feel like the two of you have had enough time to discuss the pros and cons of whether or not you want to testify. And the bottom line is, now is the time for the defense case. The People have rested."
The court asked defendant, "Do you understand both of your rights; your right to remain silent and your right to testify . . .," and defendant answered affirmatively. Defendant then indicated she was choosing to testify.
The next day, counsel informed the court, "[M]y client wants to address the court ....She is indicating she wants to fire me. And I told her the court has to decide; that it's too late; we're at trial." The following colloquy ensued:
"THE COURT: Ms. Buranasombati, we are at the close of the People's case. Either you are going to take the stand or we're going into jury instructions in a trial.
"If you were to fire your attorney right now, that would leave you unrepresented in this trial. So he is privately retained. I don't have the authority to even do a [People v. Marsden (1970) 2 Cal.3d 118] motion to find out what your complaints are.
"But I am not in a position in a case like this, to leave you unrepresented at this point in the proceedings.
"And although, I will ask you this directly, I can't imagine that you have found another attorney who is willing to take over the case at this point in the proceedings; have you?
"THE DEFENDANT: No, Your Honor.
"THE COURT: Okay. [¶] It is not in your best interest for you to fire your attorney and be unrepresented. Do you understand that?
"THE DEFENDANT: I understand.
"THE COURT: Okay. [¶] Whatever issues you're having, you have got to work it out with him."
Later that day, the court asked defendant whether she wanted to testify. Defendant responded, "I haven't had time to decide, Your Honor."
The following colloquy ensued.
"THE COURT: Ms. Buranasombati, I feel like [I did] this morning, you're really just trying to delay proceedings.
"This case has been around now for two and a half years. The People have concluded their case. There is no more time bringing up things like, I want to fire my lawyer right now, or I want more time to make this decision. Now is the time. Yesterday was the time, quite frankly.
"But we're at that stage in the proceedings, where it's the defense case. If you want to take the stand, you have to tell me now. If you want to remain silent, that's fine.
"Like I said, you have both of those rights. I have given you plenty of time to talk to your lawyer about your decision. Again, we have been in superior court now for years and you just have to make a decision. I understand that it may be a difficult one, but you need to decide whether you want to take the stand or whether you want to remain silent."
"THE DEFENDANT: Your Honor, it's not that I was trying to delay or put off; I'm ready. I am. It's just we're not agreeing."
"THE COURT: And here's the thing. You have an attorney who is giving you advi[c]e. He's a very good, very experienced attorney. If I were to give you advi[c]e, it would be to understand that he's a very good, very experienced attorney.
"And sometimes, when we're very involved in a case, we might feel that things are coming off differently than an attorney knows that they come off in court.
"So the fact that you have a disagreement with him about trial strategy, that's not unusual.
"Ultimately this decision is up to you. You have the right to remain silent; you have the right to testify on your own behalf. No matter what choice you make, I am quite certain that Mr. Hagopian will do an excellent job defending you, no matter what the state of the evidence is.
"But ultimately, it is your decision. If your attorney is advising you to do something different, I would hope that you would take that advi[c]e into account; but ultimately, the decision is yours. So you have to tell me what your decision is.
"I understand you have had some extensive talks with your attorney. I would hope that in making that decision, that you would keep all of that advice in mind; but ultimately, it is absolutely your decision, even if it's a decision that your attorney would make differently."
"THE DEFENDANT: We haven't had extensive talks. And I was under the impression that I was going to testify. I thought we were in agreement."
"THE COURT: Again, it is your decision. If you want to testify, then you can take the stand. I'm not going to go into the discussions that you have had with your lawyer. Those are covered by the attorney/client privilege.
"But to act like this is coming out of the blue and you haven't had any time to talk to your lawyer, I think is disingenuous.
"Again, this . . . case is over 2-years-old. I know you've had extensive conversations with him; maybe not this morning, but over the course of the case, numerous times. You knew you were coming to trial. This is one of the decisions that one has to make when going to trial.
"So we have your jurors waiting outside. I have the Sheriff's Department here on standby, and I just need a decision from you. And it is your decision."
"THE DEFENDANT: Can I speak to him right here?
"THE COURT: Absolutely."
After a pause, the following discussion occurred:
"THE COURT: All right. After discussing it with your attorney, Ms. Buranasombati, do you want to take the stand and testify on your own behalf, or do you want to remain silent?
"THE DEFENDANT: I will remain silent, Your Honor.
"THE COURT: Do you understand that you do have the right to testify on your own behalf if you chose to do so?
"THE DEFENDANT: Yes, I do.
"THE COURT: At this time, are you giving up that right, instead choosing to remain silent?
"THE DEFENDANT: Yes, I am, Your Honor."
No witness testified for the defense and as noted above, the jury convicted defendant of second but not first degree murder and found true the allegation that she personally used a deadly weapon.
DISCUSSION
Without citation to the record, defendant asserts, "During her jury trial, appellant moved to discharge her retained counsel." Without citation to the record, defendant states that the court "denied the motion." Based on the purported motion and denial of that motion, defendant argues, "The trial court abused its discretion by denying appellant's request to discharge her retained attorney and refusing to let her represent herself" and this error was not harmless. (Boldface &capitalization omitted.)
Respondent argues defendant did not request to discharge her retained attorney or to represent herself. We agree with respondent.
A. Defendant Did Not Request To Represent Herself
"When a defendant makes a timely and unequivocal request for self-representation, and does so knowingly, voluntarily, and intelligently, a trial court must grant the defendant's request." (People v. Thomas (2023) 14 Cal.5th 327, 397.) A request is timely when it is made "a reasonable time prior to the commencement of trial." (People v. Windham (1977) 19 Cal.3d 121, 128.) The right to self-representation" 'is forfeited unless the defendant" 'articulately and unmistakably'" demands to proceed in propria persona.' [Citation.]" (People v. Boyce (2014) 59 Cal.4th 672, 703.)" '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....' [Citation.] (People v. Barnett (1998) 17 Cal.4th 1044, 1087.) We examine the record de novo to determine whether a defendant requested the right to self-representation. (People v. Dent (2003) 30 Cal.4th 213, 218.)
Here, defendant never requested to represent herself. Defendant's only reference to self-representation was when she agreed with the trial court that it was not in her interest to represent herself. In her reply brief, defendant appears to acknowledge that she never requested self-representation because she states that "she was never allowed to even consider self-representation." The record does not support the premise of defendant's opening brief that she requested to represent herself. She did not"' "articulately and unmistakably" demand[ ] to proceed in propria persona.' [Citation.]" (People v. Boyce, supra, 59 Cal.4th at p. 703.)
B. Defendant Did Not Request the Court Appoint Her New Counsel
In her opening brief, defendant refers to her "motion to relieve retained counsel," but the record contains no such motion. Defendant also argues that the trial court could have appointed the public defender, who represented defendant prior to Hagopian. In her opening brief, she further asserts that the trial court "summarily denied the motion" to discharge retained counsel. In contrast, in her reply brief, defendant admits that she "never asked to retain other counsel."
The record supports defendant's concession in her reply; defendant never asked to be allowed to retain other counsel. She also never asked the court to appoint a public defender in lieu of her privately retained counsel. Although the trial court asked defendant if she had retained new counsel, in response, defendant did not request to hire new counsel or seek a continuance to find counsel. Instead, she responded only that she did not have other counsel. Defendant's statement that she did not have other counsel is not equivalent to a request for permission to hire new counsel and identifies no good cause to do so in the middle of trial. Finally, we do not interpret Hagopian's statement that defendant wanted to "fire him" as a request for new counsel because a disagreement over a defendant's decision whether to testify constitutes a "difference of opinion over trial tactics" not a "request for new counsel based on specific facts showing a deterioration of the attorney-client relationship." (People v. Nakahara (2003) 30 Cal.4th 705, 719.)
C. Defendant's Remaining Arguments Lack Merit
Defendant makes numerous statements unsupported by the record. For example, she states that she was "shut down before she had a chance to make any decisions or motions regarding her representation by anyone other than Hagopian." Defendant does not cite to the record for this assertion, and the record does not support that the trial court precluded defendant from making motions regarding her representation
Defendant's statement that she was concerned "about testifying while represented by an attorney who might not ask the questions she believed supported her defense" also is not supported by citation to the record or by any evidence in the record. Defendant's statement that she "presumably believed that Hagopian's opposition to her testifying would adversely affect her defense" is not supported by the record.
Although there was evidence defense counsel advised defendant against testifying, there was no evidence he would torpedo her defense if she chose to testify. The only view of Hagopian's representation was the trial court's statement that "I am quite certain that Mr. Hagopian will do an excellent job defending you, no matter what the state of the evidence is."
Defendant believes the court should have considered many "factors" to assess whether those factors "militated in favor or against her self-representation." We need not address this contention because as explained, defendant did not request to represent herself and the trial court did not err in failing to consider factors regarding a request defendant never made.
Defendant argues that under the People v. Watson (1956) 46 Cal.2d 818, 836 standard of prejudice, she suffered prejudice based on the trial court's erroneous denial of her request to represent herself. (People v. Rogers (1995) 37 Cal.App.4th 1053, 1058 ["The erroneous denial of an untimely Faretta [v. California (1975) 422 U.S. 806] motion is reviewed under the harmless error test of People v. Watson"].) According to defendant, if she had testified, she could have bolstered a heat of passion manslaughter defense or "possibly support[ed] a claim of actual or imperfect self-defense...."
Putting aside the fact that defendant did not request to represent herself, she demonstrates no prejudice from the court's purported denial of that request. Defendant's claim of prejudice rests exclusively on her right to testify, which she held regardless of whether she was represented by counsel or proceeded pro se. A defendant has a right to testify "even if contrary to counsel's advice." (People v. Nakahara, supra, 30 Cal.4th at p. 719.) The court asked defendant, "Do you understand that you do have the right to testify on your own behalf if you chose to do so?" Defendant responded, "Yes, I do." The only prejudice defendant has attempted to support flows from her decision not to testify and not from any alleged error made by the trial court in denying a purported motion to proceed pro se.
DISPOSITION
The judgment is affirmed.
WE CONCUR: ROTHSCHILD, P. J., CHANEY, J.