Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA304554, George G. Lomeli, Judge.
Jolene Larimore, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for Defendant and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Defendant Willie Hill appeals from a judgment of conviction entered after a jury found him guilty of the sale of heroin (Health & Saf. Code, § 11352, subd. (a)). The trial court found true the allegation defendant suffered a prior conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a). It sentenced defendant to seven years in state prison.
On appeal, defendant challenges the trial court’s denial of his request for self-representation. We affirm.
FACTS
A. Prosecution Evidence
On June 16, 2006, Hector Diaz, an undercover narcotics officer for the Los Angeles Police Department, was walking near the intersection of 6th Street and Broadway in Los Angeles when Isaac Jacko (Jacko) asked what he was looking for. In response, Officer Diaz asked Jacko if he had “chiva,” which is street vernacular for heroin. Jacko told Officer Diaz to follow him. Jacko then walked Officer Diaz to the corner of 6th and Spring Streets, pointed at defendant, and said, “He’s got it.” Defendant approached. Jacko told defendant that the man wanted “chiva.” Defendant directed them towards Spring Street. Defendant asked Officer Diaz how much he needed. Officer Diaz said, “four for 20,” which is street vernacular for four balloons of heroin for $20. Defendant responded, “three for 20.” Officer Diaz pulled out a prerecorded twenty dollar bill. Jacko said to give him the money. Defendant spat out three balloons from his mouth and gave them to Jacko. Jacko then handed the balloons to Officer Diaz. As Officer Diaz walked away, he saw Jacko give the $20 bill to defendant. Officer Diaz then gave a signal to other nearby officers, who arrested both defendant and Jacko. As the officers approached him, defendant put the prerecorded $20 bill in his mouth but then spit it out. The parties stipulated that the three balloons contained 0.22 grams of heroin.
Jacko was a codefendant below.
B. Defense Evidence
Defendant testified in his own behalf. He denied having three balloons of heroin with him on June 16 or selling balloons of heroin on that day. He denied selling any heroin to Officer Diaz.
PROCEDURAL BACKGROUND
Defendant was arrested on June 16, 2006. Los Angeles County Deputy Public Defender Robert Hill (Mr. Hill) represented defendant during the preliminary hearing held on July 5. Defendant was in custody throughout the proceedings. After the preliminary hearing, an information was filed and defendant was arraigned on July 19.
After three continuances, trial was set for October 17, 2006. On October 17, both sides announced ready for trial and the case was sent out for a trial to begin the following day as “day 8 of 10.”
On October 18, 2006, the trial court made a plea offer to defendant for less time than that offered by the prosecution. The court offered a four-year sentence at half-time to defendant. Defendant responded that they were not prepared to proceed in front of a jury. He said, “We haven’t had a discovery motion; I have not made any kind of motion.” Defendant then asked the court to be granted drug treatment pursuant to Proposition 36. Defendant also told the court he had been discriminated against because he is a dark-complected Black man. Defendant denied he committed the charged offense. The court responded that his statements indicated he wanted a trial.
Defendant then requested to go pro. per. In response, the trial court advised defendant that his request to represent himself was untimely. The court informed defendant that pro. per. status would only be granted if defendant was prepared to begin the trial that day. Defendant replied that he was not prepared. He did not have the police report or preliminary hearing transcript. He informed the court that he had not been expecting a trial; that they had been discussing other resolutions. After defendant indicated that he was not ready, the court denied the motion.
Defendant then stated that he did not want his court-appointed attorney to represent him. After a Marsden hearing, the court denied defendant’s request. Voir dire commenced mid-afternoon on October 18, 2006.
People v. Marsden (1970) 2 Cal.3d 118.
DISCUSSION
Defendant contends that his request for self-representation should have been granted because it was timely and not made for the purpose of delay. We disagree.
To invoke the unconditional right of self-representation, a defendant must unequivocally assert the right within a reasonable time prior to the commencement of trial. Motions made on a whim or out of annoyance or frustration are not unequivocal. (People v. Marshall (1997) 15 Cal.4th 1, 20-23.) The reasonable time requirement is intended to prevent the defendant from misusing the motion to delay the trial unjustifiably or otherwise obstruct justice. (People v. Burton (1989) 48 Cal.3d 843, 852; People v. Scott (2001) 91 Cal.App.4th 1197, 1203.)
Faretta v. California (1975) 422 U.S. 806, 807 established that an accused’s request to conduct one’s own defense, made several weeks before trial, had to be granted if clearly and voluntarily made with knowledge of the dangers of self-representation. (Id. at p. 835.) However, a Faretta motion made on the eve of trial is deemed untimely. (See, e.g., People v. Valdez (2004) 32 Cal.4th 73, 102-103 [Faretta motion made on the day jury trial set to begin deemed untimely]; People v. Frierson (1991) 53 Cal.3d 730, 742 [Faretta motion made after counsel answered ready and case was sent to trial department was untimely]; People v. Rudd (1998) 63 Cal.App.4th 620, 625-626.)
When the motion is untimely, self-representation is not a matter of right but is subject to the trial court’s discretion. (People v. Bradford (1997) 15 Cal.4th 1229, 1365.) Relevant factors include “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. Windham (1977) 19 Cal.3d 121, 128.)
Noting that the Ninth Circuit has previously found that Faretta motions are timely when made before a jury is impaneled unless the motion was designed for purposes of delay, defendant asserts that we must follow the Ninth Circuit rules because the right of self-representation implicates a federal constitutional question. However, “[d]ecisions of the lower federal courts interpreting federal law, although persuasive, are not binding on state courts.” (People v. Zapien (1993) 4 Cal.4th 929, 989.) Rather, we are bound to follow the California Supreme Court decisions in Valdez and Burton regarding the timeliness of Faretta motions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Here, defendant first made his request to represent himself on the day set for trial after both sides announced they were ready for trial. He also indicated that he would need a continuance to prepare for trial. At that point, the request was untimely. (See, e.g., People v. Valdez, supra, 32 Cal.4th at pp. 102-103; People v. Burton, supra, 48 Cal.3d at p. 853.) Additionally, the trial court acted well within its discretion in denying the untimely Faretta motion, since it was conditioned upon a continuance. (See, e.g., People v. Scott, supra, 91 Cal.App.4th at p. 1206; People v. Ruiz (1983) 142 Cal.App.3d 780, 791-792.)
Although defendant complains that the court did not expressly indicate on the record that it was considering the Windham factors, no such requirement exists. The record need not establish that the trial court explicitly considered each of the Windham factors but only that there were sufficient reasons for the court to exercise its discretion to deny the untimely request. (People v. Scott, supra, 91 Cal.App.4th at p. 1206; People v. Perez (1992) 4 Cal.App.4th 893, 904-905.)
Defendant initially contended that the trial court erred by summarily denying his request for a referral to the California Rehabilitation Center (CRC) without any statement of reasons. However, after a more thorough reading of Welfare and Institutions Code section 3052, subdivision (a)(2), defendant agreed with the People that he was not eligible for CRC commitment. Defendant had been sentenced to seven years in state prison, and section 3052 provides that the commitment procedures do not apply if a defendant has been sentenced to more than six years imprisonment in the state prison. Defendant therefore withdrew his contention.
DISPOSITION
The judgment is affirmed.
We concur: VOGEL, Acting P. J., ROTHSCHILD, J.