Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 07CM7312. Thomas DeSantos, Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne LeMon, and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Poochigian, J. and Franson, J.
A jury convicted Michael Anthony Gonzales of two counts of battery by gassing upon two correctional officers. (Pen. Code, § 4501.1, subd. (a).) Gonzales admitted he had several prior serious or violent felonies, which were charged under the three strikes law. (§§ 667, 1170.12.) He was sentenced to two consecutive 25-years-to-life terms on each count, to be served consecutive to the sentence he was serving. On appeal, Gonzales contends the trial court abused its discretion when it revoked his in propria persona (pro per) status before trial. We conclude there was no abuse of discretion and therefore affirm.
All further statutory references are to the Penal Code unless otherwise stated.
PROCEDURAL BACKGROUND
2007 Arraignment and Pretrial Hearing
Gonzales was arraigned on June 7, 2007 before Judge Peter M. Schultz, who granted Gonzales’s motion to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta) and appointed standby counsel. Gonzales invoked his right to have the preliminary hearing held within ten days, so a pretrial hearing was set for June 14, 2007 and preliminary hearing for June 21, 2007.
At the June 14 hearing before Judge Lynn C. Atkinson, Gonzales requested a continuance “due to a motion” he claimed he could not file because he had not been given a date for the next hearing. Judge Atkinson pointed out that Gonzales was present in court when the two hearing dates were set. Gonzales submitted for filing a Pitchess motion for discovery concerning the correctional officers. Judge Atkinson advised Gonzales he was “doing it wrong, ” but could not give him legal advice. A hearing on the motion was set for June 28. The prosecutor requested a continuance of the preliminary hearing when Gonzales and his standby counsel verified he had not received police reports. Judge Atkinson granted the request after Gonzales agreed to waive his speedy trial rights and continued the preliminary hearing to July 12, 2007.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
Suspension of Criminal Proceedings for Competency Determination
On June 22, 2007, Gonzales filed seven motions for appointment of an investigator to assist in discovery, to exclude evidence of prior convictions, to dismiss the charges, for discovery, to obtain testing of his hair and a medical examination of his lungs to show prison staff made him sleep on a mattress full of pepper spray, to obtain testing of his blood to show prison staff had been poisoning his food, and a Pitchess motion.
At the June 28, 2007 hearing Judge James T. LaPorte declared a doubt as to Gonzales’s mental competency and suspended criminal proceedings after confirming Gonzales sought testing of his blood, hair and lungs to determine whether he was being given anti-psychotic medications in his food. Judge LaPorte set a hearing for appointment of counsel and a psychiatrist. Gonzales requested time to file a complaint on the judge, and asked for his name “because I am filing a conspiracy claim on you.” Judge LaPorte responded: “That’s fine.”
Reinstatement of Criminal Proceedings
Criminal proceedings were reinstated on January 2, 2008, after Judge Atkinson found Gonzales competent based on the reports of two doctors, both of whom opined he was competent. A hearing in the criminal proceeding was held before Judge LaPorte the following day. Gonzales confirmed that before proceedings were suspended, he had been representing himself in pro per, he had filed several motions and subpoenas, and he “wanted to know if the ones I already sent in got here...”. Gonzales wanted to continue to proceed in pro per. The court clerk noted that a Pitchess motion had been tendered to the court on June 14, 2007, but it was returned because it was incomplete. Gonzales responded that he had a copy of the motion now; the clerk, however, noted “improper service.” The prosecutor confirmed the People had not received a motion for discovery, blood tests, testing of hair samples, or the Pitchess motion. Judge LaPorte asked Gonzales if he wanted those matters set for a hearing after the district attorney had an opportunity to respond; Gonzales said “Yes.” The prosecutor reviewed the stack of motions that had been filed and stated he would need at least three weeks to respond.
A hearing on Gonzales’s motions, as well as on pretrial matters, was set for February 14, 2008. Judge LaPorte told Gonzales he needed to make sure everyone was served appropriately. Gonzales confirmed he was waiving time. Gonzales said he would re-file all the motions he sent in while competency proceedings were ongoing. Judge LaPorte warned Gonzales he needed to have all of the parties served so they could appear. Gonzales said he would serve the district attorney’s office with a copy of everything, but he would have to re-write everything because he was “being denied copies” and would have them at least ten days before the court date. The prosecutor said ten days would not be sufficient time to review all of the motions. Gonzales said he would try his best to have the motions served by January 14. Judge LaPorte again advised Gonzales that with reference to other motions, he needed to make sure he served the necessary parties with the paperwork, and set the preliminary hearing for February 21.
The February 14, 2008 Pretrial Hearing
Judge Schultz presided over the February 14 hearing. Gonzales stated that he was “having problems getting my motions to the Court.” Judge Schultz began with a settlement conference. After the prosecutor stated he did not have an offer to make at that time, Judge Schultz asked Gonzales if he wanted to make any settlement offers. The following exchange occurred:
“THE DEFENDANT: I don’t really know what you are talking about, what do you mean offer of settlement?
“THE COURT: An offer that if you plea[d] guilty to something that they dismiss something that the case would settle.
“THE DEFENDANT: Is this a criminal case?
“THE COURT: Yes, Mr. Gonzales, this is a criminal case.
“THE DEFENDANT: What case is this, is this 077320?
“THE COURT: That’s the case.
“THE DEFENDANT: So what are they saying that I plead to?
“THE COURT: They are not making any offers of settlement to you, but you could make an offer of settlement to them if you want to.
“THE DEFENDANT: What do you mean? I don’t understand this part.
“THE COURT: Well, that’s probably another good reason why you should have a lawyer to help you in the case, Mr. Gonzales, so he can help you.
“THE DEFENDANT: I guess we just proceed with the proceedings, your Honor. I really don’t know what this is about.”
Judge Schultz stated that Gonzales had a number of motions on calendar that day. Gonzales interrupted and said he “was supposed to be on calendar for the 21st.” Judge Schultz admonished Gonzales not to interrupt him and asked the prosecutor whether the People had received copies of the motions. The prosecutor said a packet was received on February 6. Gonzales said he filed motions “to supplement” the prior motions “plus civil motions pursuant to 527.6 and 422.6 of the Penal Code and Code of Civil Procedure and they are just not letting me get my motions in court and all of that’s relevant, the same motions are relevant to that civil part is relevant to the criminal part.” Gonzales claimed he had the motions and even had “the envelopes that they took, ” as well as “the note that the CO gave me.”
Judge Schultz received the motions, which he described as two stacks of papers, one about an inch thick and the other about an inch and a quarter thick. Gonzales complained he was being denied access to the court in a civil case he had filed, so he was bringing that matter up here to “get it on the record.” Gonzales recited various complaints about his incarceration and claimed he was being denied access to the law library. After reviewing the papers, Judge Schultz stated they were mostly unintelligible. When Judge Schultz admonished Gonzales for once again interrupting him, Gonzales asked for “a continuance, man.” Judge Schultz told Gonzales to sit down and remain quiet so a record could be made.
Judge Schultz reviewed the motions on the record. Gonzales stood up and said he knew Judge Schultz was prejudiced against him, and requested “a continuance with another judge” so he could file a lawsuit against the state, file a “170.6 motion” and re-file his motions with another judge. After confirming Gonzales had not filed a prior motion to disqualify a judge, Judge Schultz asked Gonzales if he wanted to disqualify him; Gonzales responded that he did. Gonzales made a motion under Code of Civil Procedure section 170.6 to disqualify Judge Schultz, which Judge Schultz granted. The motions Gonzales tendered that day were returned to him after he requested them back, with the exception of a writ of habeas corpus Judge Schultz gave to the clerk for filing.
The Preliminary Hearing
The preliminary hearing was held on February 21, 2008, before Judge Atkinson, who began by ruling on the motions that had been filed in June 2007, denying without prejudice: (1) the motion described as a Pitchess motion as not properly noticed or before the court, (2) the motion to dismiss the charges as not properly before the court, (3) the motion to exclude priors as not an issue currently before the magistrate, and (4) the motions for appointment of an investigator and for testing of blood and hair samples, as they needed to be brought ex parte and Gonzales needed to be more specific in his requests. With respect to discovery issues, Judge Atkinson ordered the district attorney to comply with all discovery statutes.
Judge Atkinson initially declined to receive additional documents Gonzales wanted to submit to the court, explaining that while he did not have the reporter’s transcript of the last hearing, the minute order stated that Judge Schultz had rejected them as untimely filed. Gonzales asked to leave a copy anyway for the file, claiming they were not timely filed because of “prison interference with the mail.” Gonzales also claimed they were timely filed because he filed them on the 14th; the court, however, did not have a record of it in its file. The following exchange occurred:
“THE COURT: Well, what you are handing the Court is a very voluminous stack of unstapled matters, looks like a — well over 100 pages. They are — do not contain any file stamp from the Court so
“MR. GONZALES: That’s because the Court is not going to recognize
“THE COURT: You know, Mr. Gonzales, you could talk and I could talk and that’s fine, but we can’t talk at the same time because when you are talking and I’m talking, neither one of us is listening to the other and the court reporter is having a dickens of a time putting down what is being said so if you want a record so that this matter would be properly appealed.
“MR. GONZALES: Yes.
“THE COURT: Then you need to keep your mouth shut while I’m talking and you need to talk when nobody else is speaking. [¶] Do you understand that? It’s courteous, number one, and allows for the court reporter to take down everything that is being said.
“MR. GONZALES: I got a complaint too.
“THE COURT: If you don’t want to do that, then I will revoke your privilege to serve as your own attorney because you are not acting as an attorney is expected to act. Now, if you want to continue to operate as your own attorney, then you need to comply with common courtesy and the Court’s instructions. [¶] Any question about what I’m telling you you have to do?
“MR. GONZALES: All right. Do what you got to do, I’m just saying I wanted to file these motions. I didn’t ask — I didn’t say nothing about you.
“THE COURT: I was in the process of accepting these papers when you were talking. Now, do you want to let me conduct this courtroom and act as your own counsel, then you need to operate like any other attorney’s expected to operate. If you don’t want to do that and you want an attorney, you could either get an attorney by telling me you want an attorney or you could get an attorney by being disruptive.
“MR. GONZALES: I don’t want no attorneys, they are always underestimating the case.
“THE COURT: If you are disruptive, you are going to get an attorney.
“MR. GONZALES: I see you are looking for reasons to do that, but you don’t got no reason. I’m not doing nothing but answering you about the motions that you say are not valid. I know I filed them, I filed them timely, but the prison is interfering with this. I’m trying to show you proof that they are interfering with it and you don’t even want to listen. [¶] If you got a problem with my race or because I’m an inmate, you should disqualify yourself under 170.6. I’m not doing nothing that I’m not supposed to, I’m trying to defend myself.
“THE COURT: I’ll — for the record, I will ignore Mr. Gonzales’s insulting comments. I will accept the documents that have been tendered and those will be part of the record... ”.
The remainder of the preliminary hearing proceeded without any apparent problem. The two correctional officers named in the complaint testified about the incident and were cross-examined by Gonzales. After their testimony was completed, Judge Atkinson asked Gonzales if he wished to present anything further. Gonzales responded that he wanted to “file these motions for court order because they are not letting me mail my stuff.” Judge Atkinson stated that was different and asked if he had any evidence he wanted to present for the preliminary hearing. Gonzales said the motions had to do with his discovery for the trial. Judge Atkinson said that was a different issue, which they would take up later. Gonzales confirmed he did not have anything further he wanted to present and Judge Atkinson ordered Gonzales held to answer to the charges in the complaint.
Judge Atkinson then accepted Gonzales’s motions for filing. Gonzales requested “a court order for interference with civil rights because I can’t get my motions out.... ” Judge Atkinson responded that he would have to do that in front of a different court, and read the captions of the motions: (1) notice of motion for court order and temporary restraining order pursuant to section 422.6, interference with civil rights and section 422.6; (2) supplemental briefing for motion of court order and temporary restraining order request pursuant to section 422.6, interference with civil rights; (3) supplemental brief in support of motion for court order and temporary restraining order; (4) notification of further ongoing retaliation; and (5) notice of objections and notice of inability to get copies of supplies to file motions and subpoenas in violation of section 422.6.
The March 7, 2008 Arraignment
At Gonzales’s March 7, 2008 arraignment, he filled out another Faretta waiver after the court advised him he needed to complete a new application to represent himself. The court accepted the waiver and ordered Gonzales’s current standby counsel remain on standby. Gonzales pled not guilty to the charges and trial was set for April 21, 2008.
The March 24, 2008 Hearing
At a March 24 hearing before Judge Thomas DeSantos, Gonzales advised the court he was provided with all judicial council forms he had requested previously with the exception of criminal and civil subpoenas. Judge DeSantos told Gonzales that if he submitted a declaration with the names and locations of persons he wished to subpoena, the clerk’s office would prepare the necessary forms and issue the subpoenas. On March 26, Gonzales filed a request for subpoena duces tecum, stating he had “important documents” to file in this case and requesting section 422.6 “interference with civil rights forms” and “forms for Code of Civil Procedure 527.6 Harassment.” He also filed a motion for continuance of the April 1 trial readiness hearing because he did not have enough time to rewrite the motions for discovery, research case law, send for legal copies and serve the prosecution.
The April 1, 2008 Trial Readiness Hearing
At the April 1 trial readiness hearing before Judge DeSantos, Gonzales said he was not ready to proceed to trial because the prison was not picking up his mail. The prosecutor did not object to the continuance. Gonzales agreed to continue the trial to July 14, which was the earliest date the prosecutor was available. Judge DeSantos stated it would take under submission Gonzales’s motion for an investigator, as well as his request for subpoenas duces tecum. Gonzales said he had two petitions requesting orders to stop harassment. Judge DeSantos responded that was a civil action, which he would not deal with unless they were properly filed and noticed. Gonzales said he could not file with the court because his mail was not being picked up. Judge DeSantos refused to rule on the petitions, explaining Gonzales would have to first exhaust his administrative remedies. Gonzales stated he was going to have to ask Judge DeSantos to “disqualify yourself under 170.6 because you’re obviously not going to grant me any of my rights.” Judge DeSantos denied the motion as untimely. Gonzales replied that he would “be filing another lawsuit for that.”
Judge DeSantos subsequently issued a written order directing the clerk’s office to process Gonzales’s requests for subpoenas duces tecum if he had requested them properly and met all procedural requirements. Noting that Gonzales had requested ten subpoena duces tecum forms to file in the criminal case, Judge DeSantos advised Gonzales that if he informed the court to whom the subpoenas are to be addressed, the reason for the document, and how the information is relevant to the criminal case, the court would direct the clerk’s office to issue subpoenas if the court found the information sought relevant.
The June 6, 2008 Hearing on Gonzales’s Motions
On May 6, Gonzales filed three motions: a motion for injunction prohibiting harassment pursuant to Code of Civil Procedure section 577.6, claiming that correctional officers had been harassing and torturing him; a motion for discovery; and a motion to disqualify Judge DeSantos under Code of Civil Procedure section 170.6. At a May 7 hearing, Judge DeSantos denied the motion to disqualify as Gonzales had already exercised his right to disqualify Judge Schultz. After discussion, Gonzales withdrew the motion for injunction as it was civil, not criminal, in nature. Judge DeSantos, however, ordered a hearing set for June 6 on the discovery motion.
The prosecutor filed a written opposition to Gonzales’s motions, in which he requested that the court make further inquiries into Gonzales’s ability to represent himself, as his discovery motion was comprised of unfocused requests and arguments unrelated to the facts of the current case. The prosecutor pointed out that while it appeared Gonzales understood the proceedings and could assist an attorney in preparing his case, his statements show he is extremely paranoid and under the belief the prison is out to get him.
At the June 6 hearing before Judge DeSantos, Gonzales requested another continuance because the Sheriff’s Department returned his discovery motion to him saying it could not be served. Judge DeSantos thought Gonzales was mistaken because at the last hearing, the discovery motion was before the court and a copy was given to the prosecutor so he would respond. Gonzales had a list of exhibits he claimed were relevant to the legal issues and a Pitchess motion that he wanted to give to the court. Judge DeSantos responded that the Pitchess motion was not before the court as that motion was dealt with at the last hearing. Gonzales asked for the ruling on that; Judge DeSantos responded it had been improperly filed and he was to file it properly. The prosecutor reviewed the exhibits, which he described as a “fairly extensive packet” that would take some time to read, although they appeared similar to “ones we have already received on numerous occasions” from Gonzales. Judge DeSantos, noting there were over 30 pages of information which appeared redundant to Gonzales’s claims, returned the documents to Gonzales.
With respect to the May 6 discovery motion, Judge DeSantos ordered the prosecutor to provide information, as well as any videotapes, declined to hear the Pitchess motion until Gonzales filed an appropriate motion, and determined that all other requests appeared to be either Pitchess-related requests or nonsensical and without any explanation as to their relevance. Judge DeSantos also declined Gonzales’s request to order prison officials to assist him in making copies of exhibits, since the exhibits are nonsensical.
Judge DeSantos noted Gonzales had submitted to the court seven other filings on this matter since the May 7 hearing. Judge DeSantos declined to set a hearing on his request for injunctive forms, as it had nothing to do with the criminal case, and his notice of the sheriff’s department’s refusal of service. Judge DeSantos denied Gonzales’s motion for injunction prohibiting harassment, explaining it had already been addressed and was not properly filed, and took under submission a motion for fees or waiver of fees to serve the prison with civil and criminal discovery and a motion for court-ordered investigative services.
On June 16, Judge DeSantos signed and filed an order granting Gonzales’s application for waiver of additional court fees and costs. Judge DeSantos also filed a written order on the submitted matters, in which he ruled on Gonzales’s request for additional funds for his investigator to assist him. Judge DeSantos noted that Gonzales had requested the investigator perform numerous tasks, not all of which were relevant or possible to perform. While Judge DeSantos found there was insufficient evidence to grant Gonzales’s request for evidence of a continuing course of conduct related to his incarceration, he granted Gonzales’s request for investigation of the injuries he suffered on the day in question, including obtaining any reports on those injuries and any statements of percipient witnesses.
The June 2008 Trial Readiness Hearing
On June 23, Gonzales filed a document entitled “Objections to Discrimination and Bias by Judge Thomas DeSantos and District Attorney.” At the June 25 trial readiness hearing, the prosecutor stated the People were ready for trial; Gonzales, however, was not ready. The hearing was continued to June 26. At the continued hearing, held before Judge DeSantos, the court treated the June 23 motion as a Code of Civil Procedure section 170.1 affidavit, which it summarily denied. Gonzales stated he was not prepared for trial and requested a continuance, to which the prosecutor objected. The court denied the continuance and set trial confirmation for July 11.
The July 11, 2008 Trial Confirmation Hearing
At the July 11 trial confirmation hearing, Judge DeSantos noted that since the June 26 hearing, Gonzales had filed twelve motions or memorandum. The court reviewed and denied the Pitchess motion as untimely and failing to comply with the Evidence Code, the amended discovery motion as irrelevant and untimely filed, the requests for subpoena duces tecum, as it was up to Gonzales to subpoena documents on his behalf, the motion to dismiss as untimely, the motions for experts as untimely, and the motion for additional funds for the investigator because there did not appear to be a sufficient declaration to grant the motion. The court treated the motion to exclude priors as a request for a bifurcated trial and granted the request.
During the court’s ruling on the motions, Gonzales interrupted the court to request a continuance so he could serve his own subpoenas. After the ruling, he asked for the subpoenas back so he could try to serve them before trial “since you didn’t give me no time[.]” Judge DeSantos refused to return them, as Gonzales had asked that they be filed. Gonzales then asked to file some documents for the record for appeal, which he claimed showed the relevance of the motions. Judge DeSantos agreed to mark them as received, describing them as copies of annotated code sections and CALJIC instructions, and noting they were irrelevant at that time and untimely. Gonzales did not have jury instructions prepared. Although the rules of court required Gonzales to file them that day, Judge DeSantos gave Gonzales until the following court session to file them.
Gonzales again requested a continuance to file the subpoenas, get evidence on witnesses and finish investigation. Gonzales said that when his investigator visited him at the prison about two weeks before the hearing, he told Gonzales he ran out of funds and time, and the investigator stopped the investigation as soon as he used all the money the court had authorized. Judge DeSantos denied the untimely request for continuance, stating he believed he had authorized sufficient funds for investigation purposes.
The prosecutor stated he was ready for trial and had provided the court and Gonzales a copy of the proposed witness list, verdict form, and jury instructions, noting that he had not received any witness list or proposed jury instructions from Gonzales. Judge DeSantos denied Gonzales’s request for a 30-day continuance to file a witness list and subpoenas. Gonzales responded that “[t]his is manipulating the court process. I would also like to object to your bias in this case that I already filed on.” Judge DeSantos responded that it had already ruled on that and concluded the hearing.
The Motion to Revoke Gonzales’s Pro Per Status
On July 14, the first day of trial, Gonzales again requested a continuance and stated he had motions. The prosecutor objected to the continuance, arguing there was no good cause shown, the motions were untimely, the matter had been continued more than once, and he had six witnesses being paid overtime. The prosecutor also asserted that Gonzales did nothing but “file motion after motion after motion, ” none of which was relevant to the issues, and Gonzales, by filing a Faretta form, was held to the standard of a reasonable attorney to use due diligence to prepare for trial. The prosecutor pointed out that since Gonzales began representing himself in June 2007, there had been 19 appearances in the case, it had been set for trial more than once, and any attorney on this type of case would have been ready for trial after a year. The prosecutor further argued that Gonzales had not done what he should to get ready for trial and there was no good cause to continue it.
Gonzales responded: “With regard to the Pitchess Motion that I sent in, I got this paper back and they said that I had errors, that I didn’t include an address and the name of who I wanted to serve and I did. I have it right here. I have a copy of it right here. That was the Sheriff’s Office error right there. [¶] And, then, as long as postponing the case, for about three — for about three months, this case was postponed over and over again for the mental competency hearings and I didn’t have nothing — I couldn’t say nothing. I couldn’t really say nothing. [¶] And then some of the other motions that I asked for are relevant if you look at the jury instructions that I want to provide and my defense in the case. What he’s saying is not relevant is not relevant to the prosecution but it is relevant to the defense.”
Judge DeSantos continued the trial due to court congestion. The prosecutor then asked the court to revoke Gonzales’s pro per status, asserting that Gonzales had abused the court’s discretion and dignity by filing motions which, in his opinion, were “flat-out lies as to what occurred during the course of this hearing” and were frivolous.
Judge DeSantos agreed to take the motion under submission and set a hearing for July 22 to give Gonzales an opportunity to argue the motion intelligently then. Gonzales responded that he still had “some motions that are crucial to this case because they might postpone it even longer.” The court stated: “You’re not understanding what the Court is saying. I’ll set it for the 22nd. The Court will actually even consider that statement in its decision on the 22nd....” Gonzales asked if the court still wanted jury instructions. The court responded, “Not at this point in time. Thank you.” Gonzales then said, “How about the motions in limine that I got right here. I need to file them because they have to do with competency.” The court concluded the hearing without further comment.
The July 22 hearing was continued to July 24. At the hearing, Judge DeSantos noted that Gonzales had filed more motions, including a Pitchess motion for discovery, a “notice of motion concerning correctional officers’ Pitchess Motion supplemental motion for discovery, ” a “motion in limine for videotape camera and showing of videotape of injury or incident, ” and a witness list. Judge DeSantos began with the determination of whether Gonzales should continue to represent himself, stating he intended to terminate his pro per status because (1) Gonzales continued to file inappropriate motions despite the court having advised him they were done inappropriately, which appeared to be obstruction, (2) throughout the entire proceedings, Gonzales continued to be insulting to the judges, and (3) Gonzales had not brought the case to a timely end.
Gonzales had some written arguments, which he submitted to the court. He also stated his investigator had “not even finished the process, ” and the prison kept interfering with his attempts to process the motions. Gonzales asked that his written arguments be filed; he also wanted to file “those exhibits for appeal, ” explaining that he could not file his Pitchess motion because of obstruction from the prison. Judge DeSantos reviewed the written arguments, summarized as follows: (1) he had a constitutional right to represent himself; (2) it was not his fault the prison and certain officers were conspiring to keep him from serving paperwork; (3) the law library was conspiring against him; (4) the district attorney “is conspiring against him because ‘the District Attorney’s office believes that the defendant does not deserve a proper defense and he wants to prevent me from bringing up evidence of misconduct against the officers who set me up for false charges and he knows standby counsel and that he would give me basic representation and try to create his own strategy without including any evidence of misconduct by the officers who have falsely charged me.’”; (5) his investigation was wrong, as he was trying to obtain motions to get blood tests taken so he can show his food has been tampered with by the officers in this matter; and (6) he was concerned he did not get the paperwork with respect to filing restraining orders against the prison guards. Judge DeSantos also noted that while Gonzales correctly stated that the district attorney was not supposed to have a say in the Pitchess motions, he did not know who he was supposed to serve on these matters and even after being told he served the wrong parties, he kept trying to serve the prison and court.
The prosecutor submitted on the matter after stating that the court was aware of the People’s position and the People had responded to at least one of Gonzales’s discovery requests “illustrating we are not the right people to serve.” Gonzales responded that the delay occurred when the court had asked him to waive time and postpone the case, and the investigator had not completed his investigation, had not given him anything, and would not do anything else until the court gave him more funds.
Judge DeSantos stated he had reviewed the entire file from “the 07 matter through the 1368, ” including the documentation and the preliminary hearing transcripts. Judge DeSantos summarized Gonzales’s conduct throughout the case: (1) starting in 2007, initially Gonzales was not waiving time, then he was waiving time and then he made numerous motions, including a motion to dismiss; (2) although Gonzales’s motions generally were not filed in a timely manner, Judge Atkinson bent over backwards to accept or receive them and then to deal with them; (3) Gonzales had been advised throughout the case what the protocol was, whether the motions were properly served, and what needed to be done within the limits of the court trying to maintain control of the courtroom; (4) at one time, Gonzales used insulting language and behavior toward Judge Atkinson, who admonished Gonzales and moved forward; (5) at another point, Gonzales was insulting toward Judge LaPorte, who “found his actions might have been excused by perhaps mental misconduct” and brought the section 1368 motion; and (6) both Judge Atkinson and Judge LaPorte ruled on numerous motions, as did he, and either granted or denied them.
Judge DeSantos noted that, while a defendant has the right to move forward to trial even if he does not know what he is doing, when a defendant is an obstructionist and does not engage in proper rules of procedure and protocol, the court may terminate his self-representation. Accordingly, the court did so, appointing Gonzales’s standby counsel as his attorney. The court held in abeyance ruling on the motions filed on July 18, depending on what Gonzales’s attorney wished to do. The court continued the trial setting hearing to August 1.
DISCUSSION
A trial court must allow a defendant to represent himself if he knowingly and intelligently makes an unequivocal and timely request. (Faretta, supra, 422 U.S. at p. 821; People v. Valdez (2004) 32 Cal.4th 73, 97-98.) Once granted, however, “‘[t]he right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.’” (People v. Carson (2005) 35 Cal.4th 1, 8 (Carson), quoting Faretta, supra, 422 U.S. at p. 834, fn. 46.) A defendant who represents himself must be “‘able and willing to abide by rules of procedure and courtroom protocol.’ [Citation.] This rule is obviously critical to the viable functioning of the courtroom. A constantly disruptive defendant who represents himself, and who therefore cannot be removed from the trial proceedings as a sanction against disruption, would have the capacity to bring his trial to a standstill.” (People v. Welch (1999) 20 Cal.4th 701, 734 (Welch).)
The right of self-representation may be terminated if a defendant engages in “‘deliberate dilatory or obstructive behavior’ [that] threatens to subvert ‘the core concept of a trial’... or to compromise the court’s ability to conduct a fair trial....” (Carson, supra, 35 Cal.4th. at p. 10; see also Faretta, supra, 422 U.S. at pp. 834-835, fn. 46 [court may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct].) When determining whether termination is appropriate, the trial court should consider such factors as the nature of the misconduct, its impact on the trial proceedings, the availability of alternative sanctions, whether the defendant was warned that particular misconduct would result in termination, and whether the defendant intentionally sought to disrupt or delay the trial. (Carson, supra, 35 Cal.4th. at p. 10.) The defendant’s intent to disrupt is not a “necessary condition”; instead, “the relevance inheres in the effect of the misconduct on the trial proceedings, not the defendant’s purpose.” (Id. at p. 11, italics added.) Each case must be evaluated in its own context and on its own facts. (Id. at p. 10.)
We review the revocation of a defendant’s pro per status for abuse of discretion (Welch, supra, 20 Cal.4th at p. 735), giving deference to the trial court’s “judgment call” (People v. Clark (1992) 3 Cal.4th 41, 116). “[A] trial court must undertake the task of deciding whether a defendant is and will remain so disruptive, obstreperous, disobedient, disrespectful or obstructionist in his or her actions or words as to preclude the exercise of the right to self-representation. The trial court possesses much discretion when it comes to terminating a defendant’s right to self-representation and the exercise of that discretion ‘will not be disturbed in the absence of a strong showing of clear abuse.’” (Welch, supra, 20 Cal.4th at p. 735.) “We are also aware that the extent of a defendant’s disruptive behavior may not be fully evident from the cold record, and that one reason for according deference to the trial court is that it is in the best position to judge defendant’s demeanor.” (Ibid.)
Here, Gonzales contends the court did not have good cause to terminate his Sixth Amendment right to represent himself because his behavior was not the type that warranted such a sanction. While Gonzales admits he filed repetitive motions, he asserts the court only needed to deny them, and there was no other reason he could not represent himself at trial, as he was not disruptive in the courtroom. Gonzales contends the reasons the court gave for revoking his right to self-representation, which he characterizes as failing to properly file motions or filing meritless ones coupled with past rude behavior, do not meet the requirements stated in Carson for warranting revocation of his constitutional rights.
The trial court found that Gonzales’s obstructionist conduct and his failure to engage in the proper rules of procedure and protocol justified the revocation of his right to self-representation. The evidence, discussed thoroughly above, leaves no doubt the trial court acted well within its discretion in so doing. Gonzales filed numerous improper motions which wasted court time. Gonzales interrupted the judges and did not listen to their orders. When a judge refused to accept his filings, or denied his motions, he often moved to disqualify him. Gonzales was warned at the preliminary hearing in February 2008 that if he wanted to continue to act as his own attorney, he needed to comply with common courtesy and the court’s instructions, and to conduct himself like any other attorney. Gonzales, however, failed to follow the court’s instructions. When his motions were denied, he was told they were improper. Despite this, Gonzales continued to file them. The court instructed Gonzales on how to obtain subpoenas, yet Gonzales failed to follow those instructions and instead continued to file motions for subpoenas. Even after the prosecutor requested the court consider revoking Gonzales’s right to represent himself due to his filing of numerous irrelevant and irrational motions, Gonzales wanted to file more motions at the hearing on that request.
No attorney would be permitted to act as Gonzales did throughout these proceedings. (See People v. Harris (1977) 65 Cal.App.3d 978, 985-987 [defendant knowingly and intelligently waived right to counsel after he was “warned of pitfalls of self-representation and that he would be bound by the same rules that attorneys are bound by during the conduct of the proceedings”]; People v. Elliott (1977) 70 Cal.App.3d 984, 990 [defendant knowingly and intelligently waived right to counsel; court had warned defendant he “would be required to follow the ground rules of trial procedure and make the appropriate motions and utilize the procedural rules that an attorney would make and utilize”].)
Gonzales asserts that the trial court should have denied his motions and proceeded with the case instead of revoking his right to self-representation. In support of this assertion, Gonzales points to an unpublished opinion of this court, People v. Gonzales (Sept. 3, 2004, F042129), in which we affirmed his felony conviction for battery by gassing after rejecting, among other things, his claim that, after the trial court granted Gonzales’s request to represent himself after it found him competent to stand trial, the trial court should have held a second competency hearing due to his irrational conduct that included filing numerous motions. Gonzales contends that because the trial court in that case apparently was able to deal with his penchant for filing numerous frivolous motions and allowed him to proceed in pro per through trial, the court in this case could also have done so.
While the trial court here certainly had the option of merely denying Gonzales’s motions and proceeding with the case, its failure to do so does not show an abuse of discretion given the totality of Gonzales’s behavior outlined above. The abuse of discretion standard measures whether, given the established evidence, the act of the lower court falls within the permissible range of options set by the legal criteria. (Dorman v. DWCL Corp. (1995) 35 Cal.App.4th 1808, 1815.) Based on Gonzales’s conduct, the trial court reasonably could conclude that, even if it denied the motions, he would continue to find ways to disrupt the proceedings through the legal process. Gonzales asserts that he did not intend to disrupt or delay the legal process by filing his motions, but instead was trying to elicit information that was part of his mental illness. Even so, the trial court reasonably could conclude that Gonzales was unable to continue to represent himself because he could not act like an attorney and would continue to delay the proceedings. The fact that the trial did not occur until a year later does not establish that an alternative sanction should have been imposed
In short, Gonzales abused the dignity of the courtroom and ignored the rules of procedural and substantive law. On this record, no abuse of discretion is shown.
DISPOSITION
The judgment is affirmed.