Opinion
NOT TO BE PUBLISHED
Santa Barbara County Super. Ct. No. 1206732, George C. Eskin, Judge
Lyn A. Woodward, 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, Lawrence M. Daniels, Supervising Deputy Attorney General, William H. Shin, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Anthony Carrasco appeals from a judgment following his conviction, after a jury trial, of first degree burglary and possession of methamphetamine. (Pen. Code, § 459; Health & Saf. Code, § 11377, subd. (a).) Following trial, the court found allegations of two prior strikes, two prior serious felonies, and two prior prison terms to be true. (§§ 667, subd. (e)(2)(A), 667.5, subd. (c)(9), 1170.12, subd. (c)(2)(A), 1192.7, subd. (c)(19)(28).) The court granted appellant's motion to strike one prior strike and sentenced him to 18 years in state prison (an eight-year term for burglary [double the midterm]; two five-year consecutive terms for prior serious felony convictions; two stayed one-year prior prison terms; and a concurrent four-year term for possession of methamphetamine [double the midterm]). Appellant contends that the court erred in denying his motion for self-representation. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
In dismissing appellant's prior strike, the court discussed his 1993 crimes. It noted that the 1993 robbery was a "technical" 211, which had involved no violence; that neither the current crime nor his "pattern of recidivism" involved violence; and that 18 years was a "more than adequate" penalty for the current offense and his criminal history.
FACTUAL AND PROCEDURAL BACKGROUND
On October 29, 2005, the victim was away when a neighbor noticed a prowler at her residence. Within an hour, police apprehended appellant nearby, with a backpack containing the victim's laptop computer. He had one small piece of broken glass in his shirt and another on his glove. The victim returned to her residence and noticed that her laptop computer was gone from a room with a newly broken window.
On the date scheduled for his arraignment, appellant asked the court to dismiss his appointed counsel and appoint new counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. The court conducted a hearing and indicated its inclination to deny the Marsden motion. Appellant then requested permission to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806. The court immediately and unequivocally denied his Faretta request, referred back to the Marsden issue, and denied the Marsden motion.
DISCUSSION
Appellant contends that the trial court denied his constitutional right to represent himself. (Faretta v. California, supra, 422 U.S. 806, 835.) We disagree. "A trial court must grant a defendant's request for self-representation if the defendant knowingly and intelligently makes an unequivocal and timely request after having been apprised of its dangers. (Faretta, supra, 422 U.S. at p. 835; [citations].) Faretta error is reversible per se." (People v. Valdez (2004) 32 Cal.4th 73, 97-98.)
Appellant's arraignment was scheduled for January 12, 2006. He appeared in court and made a motion pursuant to People v. Marsden, supra, 2 Cal.3d 118 for the dismissal of appointed counsel and the appointment of another attorney. The court stated it was "about to rule that there [was] no . . . legal basis for [appointed counsel] to be relieved." Their colloquy continued as follows:
"THE DEFENDANT: I feel he's against me. Everything I just told you I didn't just say. I really feel like that. I feel he's against me. If I can't have another lawyer, hopefully, the Court would give me [the] opportunity to go pro. per.
"THE COURT: I won't do that.
"THE DEFENDANT: No.
"THE COURT: I wouldn't let [you do] that because I really think that . . . would make your situation even worse. You against Mr. Dozer, not a chance. Not a chance. That would be a huge mistake on my part and a huge mistake on your part because he would show no mercy.
"THE DEFENDANT: He's showing no mercy right now. At least I can
"THE COURT: I'm sorry.
"THE DEFENDANT: At least I feel I can get up to say whatever I have to say, you know.
"THE COURT: Well, there's no reason for me to believe that if Mr. Chambliss feels that's going to be in your best interests he wouldn't allow you to do that.
"THE DEFENDANT: There's no other channels I can take to get rid of him?
"THE COURT: Get rid of Mr. Chambliss?
"THE DEFENDANT: As I sit right here.
"THE COURT: Yeah, if you had access to resources that would enable you to hire a lawyer.
"THE DEFENDANT: I tried to this week, but I couldn't.
"THE COURT: At this point in time based on the information that I've obtained here, I can't think of any other – any other recourse. I mean, I suppose there's also the possibility, but I wouldn't bank on it because Mr. Chambliss thinks that he can represent you effectively, but if Mr. Chambliss felt that your – if Mr. Chambliss felt that your – what you just said here at the – at the conclusion he might want to inquire in his own office whether there's somebody else. But that's the only other option, and I don't think he feels that way.
"So at this point in time without prejudice to raising the issue again, the request for substitution of counsel is denied.
"We can invite Mr. Dozer to come in."
In determining whether the defendant invoked the right to self-representation, we examine the entire record de novo. (People v. Stanley (2006) 39 Cal.4th 913, 932.) In People v. Marshall (1997) 15 Cal.4th 1, 23, our state Supreme Court recognized that "the court should draw every reasonable inference against waiver of the right to counsel"; that "the defendant's conduct or words reflecting ambivalence about self-representation may support the court's decision to deny the defendant's motion"; and that a trial court may properly deny 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." The Marshall court concluded that the defendant's request for self-representation was made for purposes of delay and "to avoid being required to supply . . . samples [of blood and body tissue] rather than out of a sincere desire to forego counsel and represent himself." (Id. at p. 25.) Here, appellant made his Faretta motion in passing anger or frustration about the apparent imminent denial of his Marsden motion.
Respondent argues that the trial court properly denied appellant's Faretta request because it was equivocal and relies in large part on People v. Scott (2001) 91 Cal.App.4th 1197. "[Defendant] Scott made his Faretta motion immediately after the trial court denied his Marsden motion, and [his] subsequent comments suggest he made the Faretta motion only because he wanted to rid himself of appointed counsel. When the trial court gave [him] a waiver of rights form in response to his Faretta request, [it] said: 'For the record, let me repeat it. Mr. Scott, are you sure you want to represent yourself?' Scott replied, 'Yes. I do, judge. I don't want [appointed defense counsel] to represent me.' Scott also said: '[I]f I can't get a [new] state appointed attorney, then I represent myself,' and, 'For the record, I don't want this attorney representing me. You the court is coercing me.'" (Id. at p. 1205.)
Citing People v. Valdez, supra, 32 Cal.4th 73, respondent points to appellant's failure to renew his Faretta request as further evidence of its equivocal nature. The Valdez court relied on a similar failure in dismissing a Faretta request as equivocal. It rejected the defendant's argument that a renewed request would have been futile where the court had stated it "wouldn't let [him] go pro. per." (Valdez, at p. 98.) Here, despite his multiple opportunities to renew the motion between its denial on January 12, 2006, and his trial in May 2006, appellant failed to do so. Further, the record does not suggest that appellant should have assumed that the trial court would not entertain a renewed Faretta motion. To the contrary, in denying appellant's Marsden motion, the court indicated that it did so without prejudice and essentially invited a renewal of that motion. In addition, during the Marsden proceedings, appellant acknowledged the court's patient reception of his Marsden motion: "But, see, you took the time right now. You sat here and you really explained to me, you said no matter--I mean, I'm sure you have other cases whatever." Later, he added, "But you made the time," and "But still you . . . answered a lot of my questions today."
The Valdez court also stressed the equivocal nature of the words in defendant's Faretta request: "'[I]f I want to go pro. per. in this case I could do that.' Defendant's use of the conditional 'if' shows that his statement was ambivalent and equivocal." (People v. Valdez, supra, 32 Cal.4th 73, 99, italics added.) Similarly, here, appellant asked to represent himself only after he learned that the court was not inclined to grant his Marsden motion: "'If I can't have another lawyer, hopefully, the Court would give me [the] opportunity to go pro. per.'" (Italics added.)
Appellant made an ambivalent, equivocal Faretta request in passing anger or frustration regarding the anticipated denial of his Marsden motion. The court properly denied his request. (People v. Marshall, supra, 15 Cal.4th 1, 23.)
The judgment is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.