Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 162406
NEEDHAM, J.
Alexander Lorenzo Gee appeals from a judgment of conviction and sentence after a jury found him guilty of second degree robbery. Gee contends the trial court erred in denying his motion for a change in appointed counsel, denying his motion during jury selection to continue the trial so he could retain private counsel, and denying his subsequent motion to represent himself. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
A criminal complaint was filed against Gee on November 24, 2009. Represented by court-appointed counsel John McDougall, Gee was held to answer after a preliminary hearing.
An information charged Gee with second degree robbery (Pen. Code, § 211) and charged Deandre Devereaux as an accessory after the fact. The information also alleged two prior strike convictions against Gee. (§§ 1170.12, subd. (a); 667, subd. (e)(2).) Gee was arraigned on the information in December 2009, while represented by McDougall.
Unless otherwise indicated, all statutory references are to the Penal Code.
A. Gee’s Motions
At the heart of this appeal are several motions Gee brought before or during trial. We mention them briefly here and discuss them further post.
On January 8, 2010, the court conducted a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). After considering Gee’s concerns about his attorney McDougall, the court denied Gee’s motion for new counsel. A trial date was set for February 8, 2010.
On February 8, 2010, co-defendant Devereaux entered a plea of guilty to the charge of receiving stolen property, pursuant to a plea agreement by which he promised to give truthful testimony in the trial of Gee. Devereaux was required to remain in custody until he testified.
On February 9, 2010, after the date set for trial, defense counsel McDougall moved for a two-week continuance on Gee’s behalf so that Gee might retain private counsel. The court denied the motion as untimely.
Jury selection began on February 11, 2010, and continued on February 22 and 23. On February 23, McDougall informed the court that Gee wanted to “go pro per at this time, ” noting that he and Gee had “a number of disagreements.” Gee personally confirmed that he wanted to represent himself. After hearing Gee’s concerns, the court denied the request.
Jury selection was completed on February 24, 2010. After the jury and alternates were sworn and the jury was dismissed for the afternoon, the court stated for the record that McDougall had informed the court that Gee wanted to make a motion based on ineffective assistance of counsel. Gee clarified that he wanted McDougall to move for a mistrial based on ineffective assistance because McDougall had not told Gee that Gee could object to prospective jurors during voir dire. Gee also wanted a mistrial because his Marsden motions had been denied. The court denied Gee’s motion for a mistrial and, to the extent it could be characterized as another Marsden motion, denied the Marsden motion as well.
The matter proceeded to a trial by jury.
B. Evidence at Trial
Victim Jalita Johnson testified that she was working as a manager at the McDonalds restaurant on 98th and International Streets on November 19, 2009. At approximately 6:20 a.m., a black male in his 40s, wearing black jeans with a recognizable beige design, a black hooded sweatshirt, a baseball cap, a black pea coat, and black and gray gloves, entered the restaurant and approached Johnson’s register.
The man placed an order for breakfast. Then he removed a black gun from his pocket and placed it on the counter, telling Johnson to “give [him] everything.” When Johnson saw the gun, she became frightened and ran out the back door, telling a co-worker, “he got a gun.” Johnson ran around the side of the restaurant to the drive-through windows, where she observed the robber leave the restaurant.
Returning inside the restaurant, Johnson locked the door and called the police. She noticed an empty cash register drawer and change on the floor.
At trial, the jury was shown a videotape of the incident, recorded by surveillance cameras. The video showed the robber jumping over the counter and pulling out a till of money from the cash register. Johnson identified Gee as the robber in court and further identified the jeans, gloves, and pea coat as the ones worn by the robber.
Devereaux testified that he knew Gee from a drug program. Around 5:00 a.m. on the morning of the robbery, Devereaux had returned to Gee a black BB-gun that Devereaux had borrowed. Later that morning, between 6:30 a.m. and 7:00 a.m., Gee showed Devereaux a “bunch of money” and told Devereaux that he had robbed the McDonalds restaurant. Devereaux observed numerous police officers at the McDonalds. A couple of hours later, Gee explained to Devereaux that he had entered McDonalds with a gun, pointed the gun at the manager who took off running to the back of the restaurant, jumped over the counter, took the money out of the register, and left.
Devereaux acknowledged at trial that he had been charged as an accomplice to the robbery, but he pled guilty to receipt of stolen property and would not receive additional jail time if he testified truthfully at Gee’s trial. Devereaux also acknowledged that he had several prior felony convictions.
Oakland Police Officer Kasiske testified that he arrived at the McDonalds around 6:20 a.m. on the day of the robbery. He watched a videotape that did not show the robber’s face, but showed a white spiral pattern on the robber’s pants, which he added to the broadcast description of the robber that had been provided by the victim.
Around 3:00 a.m. on the day after the robbery, police detained Gee and Devereaux on an unrelated matter. Gee was wearing a black beanie, black hoodie sweatshirt, black pea coat, and blue jeans. Devereaux was wearing jeans with a distinctive design. The police found a black BB gun nearby. Officer Kasiske was called to the scene and confirmed that the pants Devereaux was wearing looked like the pants in the surveillance video of the robbery, although he noticed that it was Gee who was wearing the black pea coat and black hoodie. While other officers went to the McDonalds to view the surveillance video for themselves, Officer Kasiske remained in a patrol car with Devereaux. Devereaux spontaneously volunteered to Kasiske that the pants he was wearing did not belong to him, but to Gee. The officers returned from the McDonalds with another video of the robbery, which showed the robber’s face to be Gee, not Devereaux. Devereaux explained at trial that he was wearing Gee’s jeans that day because his own pants were dirty and he had nothing else to wear.
A few days after the robbery, the police showed victim Johnson a “six-pack” photographic lineup. She identified the photographs of Gee and another individual as possible suspects. At the preliminary hearing, Johnson positively identified Gee as the robber.
C. Verdict and Sentence
The jury found Gee guilty of second degree robbery. In a bifurcated proceeding, the jury also found true the prior strike allegations.
The court sentenced Gee to state prison for 35 years to life, comprised of 25 years to life on the robbery count under the Three Strikes Law, plus two consecutive five-year terms under section 667, subdivision (a)(1)).
This appeal followed.
II. DISCUSSION
Gee contends the trial court erred in denying his Marsden motions, denying his motion to represent himself at trial, and denying his request for a continuance of the trial. We address each of his contentions, albeit in a different order.
A. Marsden Motions for Change of Appointed Counsel
“[A] Marsden hearing is not a full-blown adversarial proceeding, but an informal hearing in which the court ascertains the nature of the defendant’s allegations regarding the defects in counsel’s representation and decides whether the allegations have sufficient substance to warrant counsel’s replacement.” (People v. Hines (1997) 15 Cal.4th 997, 1025 (Hines).) The motion should be granted “only when the defendant has made ‘a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation’ [citation], or stated slightly differently, ‘if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result’ [citation].” (Id. at pp. 1025-1026.)
In short, the defendant must demonstrate that the “failure to replace counsel would substantially impair the defendant’s right to assistance of counsel.” (People v. Taylor (2010) 48 Cal.4th 574, 599 (Taylor).) “The mere ‘ “lack of trust in, or ability to get along with, ” ’ counsel is not sufficient grounds for substitution.” (Id. at p. 600.) We review for an abuse of discretion. (Id. at p. 599.)
1. January 8 Marsden Hearing
At the Marsden hearing on January 8, 2010, Gee complained that he had seen defense counsel McDougall only once outside of court appearances and McDougall did not accept telephone calls. Gee further asserted that McDougall failed to look into “certain things” such as the issue of identification, McDougall was “more of a dealmaker” and was not competent to take the matter to trial, and Gee was not “comfortable” with going to trial with McDougall as his attorney.
McDougall responded that he had practiced law since 1972, was a certified criminal law specialist since 1995, and was a veteran of many felony trials, including homicide cases and Three Strikes cases. He recounted his pretrial investigations in Gee’s case, including with respect to the identification issues Gee had noted. McDougall also hired an investigator when Gee claimed to have been with his girlfriend at the time of the robbery; the investigator spoke with the girlfriend, who contradicted Gee’s story. McDougall explained at length his further preparation of the case, his cross-examination of the victim at the preliminary hearing, and his attempt to negotiate a better plea offer for Gee. By his cross-examination at the preliminary hearing, McDougall noted, he had elicited evidence relating to the victim’s inability to make a positive identification of Gee from the photographic lineup.
The trial court found that McDougall had been “acting more than reasonably” and was “doing as good a job as anybody could do under the circumstances.” The court denied Gee’s motion.
The court did not abuse its discretion. There was no evidence that defense counsel was providing ineffective assistance or that he and Gee had irreconcilable differences that would lead to a lack of effective assistance. Substantial evidence supported the court’s conclusion that McDougall was “doing as good a job as anybody could do under the circumstances” based on the evidence presented at the hearing, including counsel’s attempts to investigate and prepare the case and address his client’s concerns. The fact that Gee’s girlfriend would not support Gee’s alibi does not establish ineffectiveness on counsel’s part.
2. February 23 Marsden Hearing
On February 23, 2010, McDougall informed the court that Gee desired to “go pro per at this time, ” noting their disagreements and inability to get along, and Gee confirmed that he desired to represent himself. The court interpreted the request to constitute a Marsden motion. Upon further inquiry by the court in the prosecutor’s absence, Gee asserted that he had “never been happy with Mr. McDougall as [his] counsel, ” they did not share the same “tactical” views, he had not received copies of Devereaux’s “confession, ” and he wondered why the other person identified in the photographic lineup as the potential robber had not been “pursued.” Gee believed that McDougall was “more than capable” but was not looking sufficiently into the issue of the victim’s identification of him as the robber. Gee acknowledged that he was not prepared to represent himself without a continuance.
McDougall advised the court of the steps he had taken to prepare for trial, including his prompt hiring of an investigator to check a potential alibi witness that Gee had suggested, and his attempt to obtain a background check on the complaining witness as Gee requested. He had already procured a transcript of Devereaux’s statement, and his assistant was working on converting the statement into the.mp3 format that Gee wanted.
The trial court denied Gee’s motion, ruling that the motion was untimely. As relevant to Marsden, the court found that the quality of McDougall’s representation was adequate and the personal differences between Gee and McDougall were insufficient to require substitution of appointed counsel.
The court did not abuse its discretion. Substantial evidence supported the conclusion that McDougall was providing effective assistance, based on the statements made at the hearing. The differences between McDougall and Gee were not shown to be so serious as to result in ineffective representation. The mere lack of trust in counsel, or inability to get along with counsel, is insufficient. (Taylor, supra, 48 Cal.4th at pp. 599-600.)
3. February 24 Hearing
On February 24, 2010, Gee moved for a mistrial based on ineffective assistance of counsel (in that McDougall had failed to advise that he could object during jury selection) and the denial of his Marsden motions. When asked whether his motion was for a mistrial or for substitution of new counsel under Marsden, Gee said it was not a Marsden motion but a motion for a mistrial.
Gee was given yet another opportunity to explain his concerns about McDougall (in the prosecutor’s absence, due to the court’s understanding that Gee’s request was based on Marsden). The court pointed out that McDougall had been effective during voir dire in making a Wheeler/Batson motion at the earliest appropriate opportunity and getting a potential juror to “talk about the believability of police testimony in a way that was likely to benefit [Gee] with the entire [venire].” Gee acknowledged that McDougall was a diligent attorney and did not dispute his intellect or his abilities. He just thought that McDougall was not “the attorney for this case, ” although he was not making a motion to relieve or substitute counsel.
People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79.
The court denied the motion, both to the extent it was a Marsden motion and to the extent it was a motion for a mistrial. Gee does not challenge the denial of his request for a mistrial, but contends the court erred under Marsden.
The trial court did not abuse its discretion in denying the motion to the extent it was premised on Marsden. Gee argues that the level of his persistent disagreement with McDougall reflected a complete breakdown in the attorney-client relationship, because Gee had raised the issue with the court several times and McDougall acknowledged they had disagreed and had been unable to get along for weeks before trial. Gee is incorrect.
In the first place, the disagreements between Gee and McDougall pertained to matters of investigation and tactics, and were not shown to be so serious as to result in ineffective assistance. Mere disagreement with counsel over trial tactics does not entitle a defendant to substitution of counsel. (People v. Hart (1999) 20 Cal.4th 546, 604.) Furthermore, the fact that Gee kept raising the same issue with the court does not mean that it had any merit. Finally, in connection with Gee’s last motion on February 24, he repeatedly stated that he did not want new counsel but instead wanted a mistrial, suggesting that he was not challenging the effectiveness of his attorney but simply wanted to avoid facing the charge against him.
Gee has not shown that the trial court acted so arbitrarily or irrationally as to demonstrate an abuse of discretion.
B. Motion to Continue Trial to Retain Private Counsel
On February 9, 2010, McDougall requested a two-week continuance on Gee’s behalf, in the midst of jury selection, in order for Gee to retain private counsel. McDougall asserted that, according to Gee, Gee had been unable to complete negotiations with attorneys for private representation because the Sheriff’s Department refused to allow his court-ordered telephone calls.
The trial court denied the motion on the ground it was untimely, since Gee’s motion came on the second day of trial. The court also noted that witness Devereaux would be prejudiced by a continuance because he had to remain in custody until he testified in compliance with his plea agreement.
1. Law
A continuance in a criminal trial may only be granted for good cause. (§ 1050, subd. (e).) A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence. (People v. Jenkins (2000) 22 Cal.4th 900, 1037 (Jenkins).) We review for an abuse of discretion, based on the circumstances in the case and particularly the reasons presented to the trial court when the continuance is requested. (People v. Mungia (2008) 44 Cal.4th 1101, 1118.)
2. Application
Gee argues that his proposed continuance would have caused little prejudice, because he made his request before prospective jurors were summoned to the courtroom and well before any witnesses were sworn. He is incorrect. If the continuance had been granted, it would have delayed the summoning of jurors and presentation of witnesses for two more weeks, while Devereaux remained incarcerated pending his testimony. These circumstances indicate prejudice.
Furthermore, Gee did not establish good cause for the continuance. He showed no substantial need to delay the proceedings to retain private counsel, in light of the court’s finding of the adequacy of McDougall’s representation. He did not pursue the matter diligently, waiting until the day after the scheduled trial date – about a month after the denial of his Marsden motion on January 8 – to seek the continuance. Under the totality of the circumstances, the court did not abuse its discretion.
C. Faretta Motion for Self-Representation
As mentioned ante, on February 23, 2010, McDougall informed the court that Gee desired to proceed in pro per, they had “a number of disagreements, ” and they had not gotten along well “for a number of weeks.” Gee confirmed that he desired to represent himself, reiterating his unhappiness with McDougall’s investigation and preparation for the case. Because his Marsden motions and request for a continuance to retain private counsel had been denied, Gee believed he had no choice but to represent himself. He acknowledged, however, that he was not ready to represent himself without a continuance. McDougall advised the court of the steps he had taken to prepare for trial.
The court denied the motion, finding that although Gee’s request was unequivocal and he did not appear incompetent, his motion was untimely, the quality of McDougall’s representation was adequate, the degree of differences between Gee and McDougall did not require substitution of appointed counsel, Gee had requested a change in counsel before, Gee was not prepared to represent himself without a continuance, and indeed he did not even know the facts the prosecutor would have to prove to get a conviction. Although the trial court treated Gee’s request as a Marsden motion for a change of counsel, Gee also contends the court’s ruling violated his right to represent himself.
1. Law
A criminal defendant has a constitutional right to self-representation. (Faretta v. California (1975) 422 U.S. 806, 835.) In order to invoke this constitutional right, the defendant must make an unequivocal assertion of the right within a reasonable time before the trial begins. (People v. Skaggs (1996) 44 Cal.App.4th 1, 5.) If a timely motion to proceed pro se has been made, the trial court “must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be.” (People v. Dent (2003) 30 Cal.4th 213, 217; see People v. Welch (1999) 20 Cal.4th 701, 729 [defendant’s request for self-representation must be granted if the defendant: is mentally competent and made his request knowingly and intelligently after being apprised of the dangers of self-representation; made his request unequivocally; and made his request within a reasonable time before trial].)
If the motion is untimely, however, self-representation is no longer a matter of right but is subject to the court’s discretion. (Jenkins, supra, 22 Cal.4th at p. 959.) In exercising this discretion, the court “ ‘should consider such factors as 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. ’ ” ’ ” ” (People v. Clark (1992) 3 Cal.4th 41, 98-99.)
2. Application
Gee’s motion to represent himself was made on February 23, 2010, the third day of jury selection, and about two weeks after the date scheduled for trial and on which proceedings commenced. Substantial evidence supports the trial court’s finding that Gee’s motion was untimely. (People v. Horton (1995) 11 Cal.4th 1068, 1110 [motion brought on the day of trial, before proceedings commenced, was untimely]; People v. Burton (1989) 48 Cal.3d 843, 853 [motion brought on date case called for trial was untimely]; People v. Moore (1988) 47 Cal.3d 63, 78-81 [motion was untimely where brought on a scheduled trial date]; People v. Perez (1992) 4 Cal.App.4th 893, 903-904 [motion untimely where brought on first day of trial, before jury selection was set to begin].)
The trial court did not abuse its discretion in denying Gee’s request to represent himself. Substantial evidence supports the court’s conclusion that McDougall’s representation was adequate, in light of McDougall’s account of the investigation he conducted and the work he performed. Gee’s reasons for requesting self-representation centered on his conflicts with McDougall, but there was no evidence that those conflicts were so severe as to warrant self-representation. Gee had tried to change counsel previously, without success, and his motion to represent himself was based on essentially the same complaints raised before. Furthermore, Gee requested not only to represent himself, but also to obtain a continuance of the trial after jury selection had commenced, which would disrupt and delay the proceedings.
Gee argues that, although jury selection had already begun when he requested self-representation, and he told the court he would not be ready to represent himself without a continuance, the disruption would have been minimal because the case was going to be recessed after jury selection anyway, which would have given Gee time to prepare for trial. (As it turned out, the trial was continued until March 3, 2010 after the jury was sworn on February 24, 2010.) However, there was no clear indication that Gee would have become ready to represent himself within the two weeks he requested, particularly since – as the court noted – Gee was not even able to articulate the facts that the prosecutor would have to prove to gain a conviction. In the final analysis, it cannot be said that the court’s decision was arbitrary or irrational so as to constitute an abuse of discretion.
III. DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P. J., BRUINIERS, J.