Opinion
C040203.
7-9-2003
THE PEOPLE, Plaintiff and Respondent, v. DON ARBY DANIEL, Defendant and Appellant.
Defendant Don Arby Daniel appeals his conviction following a plea of no contest to selling cocaine base. (Health & Saf. Code, § 11352, subd. (a).) He contends the trial court erred in denying his Marsden and Faretta motions. We disagree and shall affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118, 84 Cal. Rptr. 156, 465 P.2d 44 (Marsden).
Faretta v. California (1975) 422 U.S. 806 [45 L. Ed. 2d 562, 95 S. Ct. 2525] (Faretta).
STATEMENT
OF CASE
On May 2, 2001, defendant sold cocaine base to an undercover detective.
On May 8, 2001, defendants motion to represent himself was granted. During the course of representing himself, defendant made numerous pretrial motions. These motions included a request for appointment of an expert and independent defense testing of physical evidence, several motions for discovery to determine discriminatory prosecution, and four motions for the assistance of counsel. He also complained that the sheriffs department was opening his legal mail and intercepting material protected by the attorney-client privilege. Finally, he complained that he had been denied access to the courts. As to these claims, he filed a petition for writ of habeas corpus and a motion to dismiss.
On August 1, 2001, the trial court held a hearing on defendants motions regarding his complaints about the sheriffs department and his petition for writ of habeas corpus. The hearing revealed that the mail being opened was directed to the federal courts, the California Supreme Court and was apparently related to appeals of other matters. The court denied the petition for writ of habeas corpus and deferred the motion to dismiss.
On August 2, 2001, defendants pro per privileges were revoked because he had stolen materials from the law library. Because his privileges were revoked, defendant relinquished his pro per status.
On December 10, 2001, defendant pleaded no contest to selling cocaine base and admitted four prior convictions. The negotiated disposition included an agreement that defendant would be sentenced to the low term of three years in state prison and sentence on the four prior convictions would be stayed.
On December 31, 2001, defendant attempted to file another motion to dismiss, based on constitutional and statutory violations. In this motion, he reiterated his complaints that the sheriffs department was opening his legal mail and intercepting material protected by the attorney-client privilege, and complained again that he had been denied access to the courts.
At the January 11, 2002, sentencing hearing, the trial court refused to accept defendants December 31, 2001, motion and refused to consider the motion, as defendant was "represented by counsel [and] only counsel can file motions." Defendant then indicated that he wanted to withdraw his plea, claiming that he had been assured the constitutional issues he sought to raise would be addressed, but were not. The court stated that the issues raised in defendants motion did not affect or relate to the validity of his plea.
Defendant then made a Marsden motion. Defendant informed the court that his attorney, Mr. Last, had told defendant that "he was not hired to defend [defendants] constitutional rights," and that Last had never discussed those constitutional issues with him. Last explained that he had met with defendant on December 21, 2001, and was advised by defendant that he "still had concerns regarding issues regarding his legal mail, issues involving his access to the courts and his access to investigators prior to my appointment on this case. [P] I explained to him that as to the matters that took place in this case prior to my appointment[,] essentially those matters had been resolved by way of the plea. That as regards to the other pending cases, specifically, legal mail involving, I believe he has a case thats pending before the California Supreme Court, I believe that he has a writ pending in front of one of the appellate courts, these matters, he was concerned regarding his access to legal research and his access to legal mail." Defendant disagreed that those were his concerns and accused Last of lying about having discussed the matters with him. Counsel went on, "This was my understanding of what his concerns were when he discussed his constitutional issues and I attempted to explain to [defendant] the scope of my representation . . . related to his arrest and prosecution for the 11352 currently before this Court and that any collateral matters[,] anything involving his attorneys or his access to the courts in other pending cases were not within the scope of my representation. It did not affect this plea or this trial or anything else having [to] do with this case. [P] [Defendant] here believed that anything involving him was relevant, anything that involved him while he was in custody on this case was something that should be brought [before] this Court and I attempted to explain to him that that was not my understanding of the law. We disagreed."
The court denied defendants Marsden motion, finding "you have had a legal dispute over the law. And none of the items you raised, in my opinion, represent any failure of Mr. Last to properly represent you. And the Marsden motion is denied."
Immediately following the denial of his Marsden motion, defendant requested that he be allowed to represent himself and indicated he wanted to withdraw his plea because of improper representation. The court denied the Faretta motion as untimely and without any valid basis.
DISCUSSION
I
Because defendant entered a plea and did not obtain a certificate of probable cause (Pen. Code, § 1237.5), we directed the parties to brief whether his appeal was cognizable. Both parties agree that, in this case, defendants postplea Marsden and Faretta motions would not affect the validity of his plea and his claims now do not go to the validity of that plea. We agree.
Penal Code section 1237.5 provides, "No appeal shall be taken by the defendant from a judgment of conviction [in the superior court] upon a plea of guilty or nolo contendere . . . except where both of the following are met: [P] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury[,] showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [P] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court." The second paragraph of California Rules of Court, rule 31, subdivision (d), provides an exception to the requirements of Penal Code section 1237.5 where "the appeal from a judgment of conviction entered upon a plea of guilty . . . is based solely upon grounds . . . occurring after entry of the plea which do not challenge its validity." (Italics added.) "In determining the applicability of section 1237.5, the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made." (People v. Ribero (1971) 4 Cal.3d 55, 63, 92 Cal. Rptr. 692, 480 P.2d 308.)
Although at the sentencing hearing defendant sought to withdraw his plea "to enable the motion to dismiss on constitutional grounds to be heard," defendants claims on appeal do not go to his guilt or innocence or the validity of his plea. Thus, his claims are cognizable without a certificate of probable cause. Accordingly, we will consider the merits of defendants claims.
II
Defendant contends the trial court erred in denying his Marsden motion "without sufficient inquiry to resolve the issues he raised." We disagree.
In Marsden, the California Supreme Court held that a trial court must provide a defendant seeking substitution of counsel an opportunity to present argument or evidence in support of his request. (Marsden, supra, 2 Cal.3d at p. 124.) When such a request is made, the trial court is required to permit the defendant to specify the reasons and then exercise judicial discretion. (People v. Barnes (1983) 146 Cal. App. 3d 663, 667, 194 Cal. Rptr. 317.) After the court has permitted the defendant to explain his reasons for requesting substitution, the courts exercise of discretion in ruling on the motion will not be disturbed on appeal unless it is shown by the defendant that his right to assistance of counsel was "substantially impaired" by the continued representation of counsel. (People v. Lindsey (1978) 84 Cal. App. 3d 851, 859, 149 Cal. Rptr. 47.)
In this case, the court permitted defendant to explain the reasons underlying his dissatisfaction, sought a response from counsel and considered the information in reaching its decision. Accordingly, the court satisfied its duty under Marsden to fully consider defendants complaints about counsel. (People v. Williamson (1985) 172 Cal. App. 3d 737, 745, 218 Cal. Rptr. 550.)
Our review discloses no abuse of discretion. The trial court gave defendant the opportunity to establish that his right to counsel would be substantially impaired if he did not receive substitute counsel, but his showing was insufficient. Defendants counsel, Last, responded to all of defendants complaints, either denying them or providing a rational and viable explanation. The court was entitled to accept counsels explanation over defendants complaints and was not obliged in this case to inquire further. (See People v. Webster (1991) 54 Cal.3d 411, 435-436, 285 Cal. Rptr. 31, 814 P.2d 1273.)
Our conclusion is bolstered by the fact that defendant has not argued on appeal that defense counsel was ineffective or incompetent. Based on this lack of argument, "we can infer his Marsden motion lacked substance because ineffective assistance of counsel is the foundation which supports the Marsden rule." (People v. Brown (1988) 46 Cal.3d 432, 461, 250 Cal. Rptr. 604, 758 P.2d 1135.) "Accordingly, we find no basis for concluding that the trial court either failed to conduct a proper Marsden inquiry or abused its discretion in declining to substitute counsel." (People v. Fierro (1991) 1 Cal.4th 173, 206-207, 821 P.2d 1302.)
III
Defendant also contends that, when he made his Faretta motion, the trial court "failed fully to inquire as to the bases for the request, failed fully to consider the controlling factors, and ultimately abused its discretion in denying the motion." Again, we are not persuaded.
A defendant has a right under the Sixth Amendment to represent himself at trial if he voluntarily and intelligently elects to do so. (Faretta, supra, 422 U.S. at pp. 834-836.) However, defendant must assert the right of self-representation "within a reasonable time prior to the commencement of trial." (People v. Cummings (1993) 4 Cal.4th 1233, 1320, 850 P.2d 1.)
Where a defendants motion is untimely, it is addressed to the sound discretion of the trial court. (People v. Windham (1977) 19 Cal.3d 121, 128-129, 137 Cal. Rptr. 8, 560 P.2d 1187 (Windham).) In ruling on an untimely Faretta motion, the trial court should consider factors such as whether or not defense counsel has indicated he is not ready for trial and needs further time for preparation, the quality of counsels representation, the defendants 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 .)
Here, defendant concedes his motion was untimely, but argues the trial court should have inquired more fully into his complaints and fully considered the Windham factors.
The trial court has a sua sponte duty to inquire into the reasons behind a request for self-representation. (Windham, supra, 19 Cal.3d at p. 129, fn. 6.) Here, the defendant volunteered the reasons behind his request. He sought to represent himself because he was dissatisfied with Mr. Lasts representation and, since the court had denied his Marsden motion, defendant wanted to represent himself. The reasons underlying defendants dissatisfaction with Mr. Last had just been fully laid out in his Marsden motion. Thus, although the court did not expressly inquire about the reasons behind the request, it had those reasons before it.
In addition, we do not agree that the court did not appropriately consider the Windham factors. The trial court is not required, in all cases, to state on the record the reasons for denial of an untimely Faretta motion. (Windham, supra, 19 Cal.3d at p. 129, fn. 6.) Again, the immediately preceding Marsden motion gave the trial court ample opportunity to evaluate defense counsels performance and the reasons underlying defendants request. Defendants prior proclivity to substitute counsel was well documented. He had previously represented himself, sought assistance of counsel on four separate occasions, abused his pro per privileges to such a degree that they were revoked, had counsel appointed, sought to have counsel relieved and then sought to represent himself. On this record, there was no abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., and HULL, J.