Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County No. 2003023417 of Ventura, James P. Cloninger, Judge
A. William Bartz, Jr. for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, G. Tracey Letteau, David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
COFFEE, J.
Alek Fidanian appeals from the judgment entered following conviction by a jury of manufacturing or distributing deceptive identification documents, conspiring to manufacture or distribute deceptive identification documents, and making false or misleading statements. (Pen. Code, §§ 483.5, subd. (a), 182, subd. (a)(1); Bus. & Prof. Code, § 17500.) The same jury convicted appellant's corporate codefendant, United States Identification Cards, Inc. (USIC), of those offenses. USIC did not appeal its conviction. The court suspended imposition of appellant's sentence, placed him on probation for three years, and assessed a $700 restitution fine. The court stayed appellant's service of 180 days in county jail pending appeal. Appellant contends that the court erred by denying his request to represent himself and denying the request of USIC to substitute counsel for its trial attorney. We reject his first contention and decline to review the second, as USIC is not a party to this appeal. We affirm.
All further statutory references are to the Penal Code.
BACKGROUND
The USIC Identification Cards
Appellant and his wife, Cheryl Fidanian, formed USIC in 1996. USIC manufactured identification cards and sold them through distributors, including travel agencies, immigration offices, photo businesses, and mobile and cellular phone dealers. USIC also marketed the cards through its website.
USIC provided promotional posters and displays for distributors' offices or stores. The identification cards issued by USIC and shown in their promotional material display data in a format similar to that on government-issued identification cards, such as drivers' licenses. The data includes a seal, an expiration date, the bearer's name, address, photograph, height, weight, hair color, eye color and birth date, and a number preceded by a single capital letter. Some cards reference federal agencies and/or indicate they have been issued pursuant to certified documents and meet federal requirements. Some of the cards include a small, faint disclaimer, stating, "Not a Government Document." The phrase "legal identification card" is sometimes printed under the disclaimer. The identification number is sometimes printed over or under the disclaimer on the card.
In 1999, a deputy district attorney in Ventura telephoned appellant and sent USIC a letter to warn them that their cards and promotional material did not comply with the law governing identification cards. Appellant told the deputy that if the card's disclaimer were darker, it would be more difficult to read other parts of the card. He also explained that most airlines and some banks accepted USIC cards.
In 2002, Oxnard police officers retrieved a USIC card from a suspect. The card did not bear the suspect's true name.
Procedural History
The prosecution filed a felony complaint charging USIC, appellant and others with several felonies involving the manufacture and distribution of deceptive documents. After the other defendants pleaded nolo contendre to misdemeanors, the prosecution filed a felony information charging appellant and USIC with manufacturing or distributing deceptive documents, conspiring to manufacture or distribute deceptive documents, and making false or misleading statements.
Attorney R. Dennis Rentzer represented appellant from August 2003 through July 20, 2004, when the court permitted attorney Leonard Levine to substitute in as counsel for appellant. On September 16, 2005, the court granted Levine's motion to withdraw as appellant's counsel because of a conflict. Thereafter, several attorneys from the Criminal Defense Associates law firm (CDA) appeared on behalf of appellant, including Arthur Greenspan (on November 7, 2005) and Tera A. Harden (on several subsequent dates). The record reflects that Rentzer, and thereafter CDA, represented both appellant and USIC. Several pleadings in the record are signed by CDA as "Attorney for Defendant Alek Fidanian."
According to Levine, "events and actions by [appellant had] caused [an] irreconcilable conflict," which he did not disclose because doing so "would violate the attorney-client privilege, and [might] also work to the prejudice of the defendant . . . ."
On Monday, May 15, 2006, the case was assigned to a courtroom for trial. Some time during the week of May 15, appellant, Harden and attorney Keith Bregman reportedly discussed the preference of USIC officers (appellant and Cheryl Fidanian) to retain Bregman to represent USIC. On May 17, Bregman informed the court that he was "their civil counsel and may be involved in the criminal case depending [on] some assistance [from] Miss Harden." Harden presented appellant's section 995 motion on May 17. The court denied the motion and continued the case to May 18 for trial.
Bregman was not in court on May 18. Harden appeared on behalf of appellant and USIC during settlement discussions and jury selection. The court ordered jurors to return on Monday, May 22, at 8:30 a.m., "sharp," for trial. The court then discussed jury instructions with Harden and the prosecutor.
On May 22, minutes before counsel were to start opening statements, Bregman appeared to request permission to substitute in as counsel for USIC. Before announcing a ruling on Bregman's request, the court indicated that Harden had alerted it to a matter that required an in camera proceeding. The prosecutor advised the court that "two previous counsel [had] . . . conflicts with [appellant]"; "[Levine] also declared a conflict with [appellant] after plea negotiations broke down"; and that "a third attorney, who did not file . . . documents, . . . with . . . Harden's firm, . . . advised [the prosecutor] and [he] believe[d] advised the Court in chambers . . . that he, too, had a conflict with [appellant] and . . . in that regard, this [was] not a blank slate . . . ." Addressing Harden, the court stated it did not think it could "require under the law that [Harden] articulate the basis for the conflict," but asked if she would be willing to do so. She requested an in camera review with the court and appellant present.
During the in camera proceeding, Harden described several disagreements between appellant and herself concerning the relevancy of evidence and witness selection. She also indicated that appellant had been recording their telephone conversations, and that he had repeatedly threatened to fire her firm and to file state bar complaints against her.
The court indicated that such disagreements between a defendant and counsel did not "shake [it] up a whole lot" and asked about any other basis for the conflict. Harden responded that Bregman's "interjecting himself at the proceeding at this late hour, [had] made it quite difficult . . . to maintain any attorney-client relationship with [appellant] as [he] substitute[d] Bregman's advice" for hers. She stated that there had been "a complete and total breakdown of the attorney-client relationship." When the court inquired if she could continue if appellant "were willing to communicate with [her] . . . and engage in the usual back-and-forth that takes place during a trial," she said she had "a serious concern about that." The court inquired whether appellant would be "willing to communicate with [Harden], as any client should with his counsel, and work with [her] during the trial to assist in his defense, [and whether there was] any reason that [she] would be unable to or unwilling to so communicate with him." Harden commented on the difficulty of communicating and continuing an attorney-client relationship while receiving threats of state bar complaints, but added she was not saying she would not be willing to try.
The court then asked appellant if he was "asking [it] to relieve . . . Harden as [his] lawyer," and he responded: "At this point, if she's not willing to help this defense with . . . Bregman, who is familiar with the corporation from day one, 1996, . . . and has already also spoken with the prosecutor of . . . Ventura, . . . my choices are limited. If she refuses to accept . . . Bregman--" The court explained that it had nothing to do with Bregman. "It has to do with you being represented as an individual person." Appellant replied, "I'll be glad to do so." The court asked: "To do what?" Appellant answered: "To act as pro per, if it comes to that." The court explained that was not its question, and appellant replied, "I'm sorry. I am not understanding perhaps." The court asked if appellant was requesting that it relieve his attorney as his attorney of record. Appellant answered, "If the Court will . . . allow me to act on my own, as my own attorney, yes, I'm ready, 100 percent." The court concluded the in camera proceedings.
The court denied Bregman's request to substitute in as counsel for USIC and also ruled that it was not necessary to relieve Harden as counsel for appellant. It advised appellant that "it seem[ed] to [the court that it was] within [appellant's] voluntary control whether [he chose] to communicate with [his] lawyer or whether [he chose] to do things or not do things that interfere[d] with [their] relationship . . . . And if [he chose] to do such things, [that was] up to [appellant] but [that this was] not a situation where [he could] indulge in self help, [and ] . . . make representing [him] so onerous for a lawyer that the court ultimately [would become] unable to function in [his] case because people [would not] represent [him]." It further explained that appellant "had an obligation to work cooperatively with [his] counsel to assist in [his] own defense"; and that if he chose not to do that, "so be it," but that was not the "smart choice."
After appellant further addressed the court, it indicated its understanding that appellant had "more or less indicated conditionally that . . . [he] would like to represent [himself]," if Harden "were to be relieved." Appellant then stated, "Yes." The court further explained that appellant had not "made [an unconditional] request to [represent himself]"; but that, if he had done so "at this point," it would be denied as untimely. Reiterating that it would not grant Harden's request to be relieved as counsel, the court stated that "the conflict at this point [did not rise] to the level where it [made Harden] incapable of providing [appellant] with constitutionally adequate representation."
Harden represented appellant and USIC during trial. Following the verdicts, Harden submitted a joint motion seeking a new trial for appellant and USIC, on multiple grounds, including "the ongoing and declared attorney-client conflict" and the court's refusal to permit Bregman, appellant's "civil attorney," to substitute in as counsel for USIC.
DISCUSSION
Appellant contends that the court committed reversible error when it denied his request to represent himself. We disagree. A defendant has a right to represent himself under the federal Constitution if he voluntarily and intelligently elects to do so. (Faretta v. California (1975) 422 U.S. 806, 819 (Faretta); 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." (People v. Barnett (1998) 17 Cal.4th 1044, 1087; Marshall, at pp. 21-22.) Here, appellant confirmed the trial court's perception that his request for self-representation had been "conditional[]," in that he wanted "to represent [himself]" if Harden "were to be relieved." Appellant thus did not make an unequivocal assertion of his right to self-representation, and the court properly denied his request. (Barnett, at p. 1087.)
Even assuming that the request was unequivocal, the court properly denied it as untimely. In the context of a Faretta request, "timely" means "within a reasonable time prior to the commencement of trial." (People v. Windham (1977) 19 Cal.3d 121, 128; see also ibid., fn. 5.) The timeliness requirement precludes a defendant from abusing the request to unjustifiably postpone trial or frustrate the orderly administration of justice. A request for self-representation that is made during trial is "addressed to the sound discretion of the [trial] court." (Id. at p. 128; People v. Roldan (2005) 35 Cal.4th 646, 688.) The court must "inquire sua sponte into the specific factors regarding a mid-trial request for self-representation," including "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." (Windham, at p. 128; see also People v. Jenkins (2000) 22 Cal.4th 900, 959; People v. Barnett, supra, 17 Cal.4th 1044, 1104-1105.)
The factors articulated in Windham support the trial court's denial of appellant's untimely request to represent himself. First, the evidence did not suggest that counsel's representation of appellant was lacking. Moreover, appellant concedes that "[t]here is no indication up to the point that the Faretta request was made that trial counsel provided inadequate representation."
Second, appellant had a prior proclivity to substitute counsel. (People v. Windham, supra, 19 Cal.3d 121, 128.) He had retained two other lawyers before retaining Harden's firm. One of those lawyers, Levine, was relieved after advising the court that "events and actions by [appellant had] caused [an] irreconcilable conflict." The court learned some of this history from the prosecutor who was assigned to the case before the appearance of Harden and before the trial court received the case.
Third, the court recognized that counsel and appellant disagreed about trial tactics. Such disagreement is "an insufficient reason to grant an untimely Faretta request." (People v. Wilkins (1990) 225 Cal.App.3d 299, 309, fn. 4.)
Fourth, the length and stage of the proceedings rendered appellant's request unrealistic. Appellant sought self-representation after Harden had decided what evidence to present and advised the court how long it would take to present the case; after the court had represented to the jury that the case would be presented within a specific time frame; immediately before opening statements; and while jurors were waiting for trial to begin. Further, the court knew from Harden that appellant disagreed with her assessment of relevant evidence and necessary witnesses. The court reasonably expected that a delay would follow the granting of appellant's request. (People v. Windham, supra, 19 Cal.3d 121, 128.)
"[W]hile the trial court may not have explicitly considered each of the Windham factors, there were sufficient reasons on the record to constitute an implicit consideration of these factors." (People v. Scott (2001) 91 Cal.App.4th 1197, 1206; People v. Perez (1992) 4 Cal.App.4th 893, 905, fn. 10.) The court did not abuse its discretion in denying appellant's untimely, conditional request for self-representation. (People v. Howze (2001) 85 Cal.App.4th 1380, 1397-1398.) Moreover, given the overwhelming evidence of appellant's guilt, it is not reasonably probable that he would have received a more favorable result if the court had granted his untimely Faretta request. (People v. Rivers (1993) 20 Cal.App.4th 1040, 1050-1052.)
Appellant further contends that the court's denial of USIC's request to permit Bregman to substitute in as its counsel mandates an automatic reversal of his convictions. USIC did not file a notice of appeal and it is not a party to this appeal.
Appellant argues that because "there was such a unity of interest and identity between [him] and [USIC], that to say that [he] does not have standing to contest the . . . denial of codefendant corporation's request for substitute counsel is surely exalting form over substance and the claim should be addressed by this Court." He also argues that because he filed the notice of appeal in this case, acting as his own attorney, on August 11, 2006, "[i]t would be extremely unfair to hold [him] responsible to the technical rules of pleading by not including the name of the corporate defendant on the notice of appeal." However, Bregman stated in explicit terms that he sought to substitute in as counsel for USIC. Following trial, on August 11, appellant's counsel of record, CDA, filed a notice of appeal on his behalf. CDA, who also represented USIC, indicated that USIC had not appealed from the judgment. There is no basis for reviewing the denial of the substitution motion brought by a codefendant who is not a party to this appeal.
The judgment is affirmed. The stay of appellant's 180-day jail sentence is vacated.
We concur: GILBERT, P.J., YEGAN, J.