Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Richard R. Romero, Judge. Affirmed. Los Angeles County Super. Ct. No. NA 069406
Bruce G. Finebaum, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Following a jury trial, appellant was convicted of petty theft with a prior, in violation of Penal Code section 666. She was sentenced to state prison for the upper term of three years. Appellant timely appeals, contending her Sixth Amendment rights were violated when (1) the trial court denied her Faretta motion to represent herself after the conclusion of the prosecution’s case-in-chief; (2) the court failed to conduct a Windham inquiry; and (3) the trial court refused to permit her to retain private counsel after her second Marsden hearing. We affirm.
Faretta v. California (1975) 422 U.S. 806 (Faretta), People v. Windham (1977) 19 Cal.3d 121 (Windham), People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
FACTS
1. Prosecution Evidence
Victim Juan Rojas was at the front of a security line to enter the Long Beach courthouse the morning of March 3, 2006. He had already placed his wallet in a security box for screening when he realized that he had left a piece of paper in his car. He turned around, intending to return to this car, but then remembered he had the piece of paper in his back pocket. When he returned to the security area about 25 seconds later, he noticed his wallet was gone.
Rojas told a female security guard his wallet was missing. He waited at the security area about 20 minutes until his wallet was returned to him by Long Beach Police Officer Richard Chen. Rojas had not given appellant permission to take his wallet.
Appellant was right behind Rojas when he was in the security line the first time. Appellant failed to empty her pockets, set off the detector and was screened with a wand by security assistant Ms. Bryant. After being screened, appellant picked up an umbrella and walked into the lobby. Bryant continued to screen people, then heard someone state that a wallet had been left in a tray. Bryant called out, “Someone left their belongings. Someone left their wallet.” She resumed screening people. Appellant came back, looked into the tray and said, “That’s mine.” Appellant took the wallet and went toward the elevators.
As Bryant continued working, Rojas came up to her saying, “My wallet is gone.” He described the wallet as “yellowish-tan with about five dollars and change in it.” Bryant notified a deputy about what had happened. The deputy asked Bryant to search for appellant, since Bryant was the only one who had seen what happened. Bryant searched all six floors of the courthouse and found appellant in the third floor hallway. Bryant asked appellant to hand over the wallet, and appellant complied. Bryant called for backup and appellant was arrested.
Officer Chen advised appellant of her rights under Miranda, and appellant agreed to speak with him without an attorney present. Appellant admitted that she took the wallet knowing it did not belong to her. The wallet was returned to Rojas.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
2. Defense Evidence
Appellant testified she had accompanied a friend to the courthouse. They both went through the security checkpoint, but appellant’s friend left an umbrella and a lighter in the security tray. Appellant picked up the umbrella and lighter for her friend. A man standing behind appellant in the security line then asked if she had forgotten a wallet. Appellant said the wallet did not belong to her, and the man said, “Well, it must be your friend’s.” The man handed the wallet to appellant when she was on the elevator. Appellant took the wallet and put it in her pocket as appellant’s friend was with the security guards. A security guard later approached appellant and searched the umbrella. Appellant gave the security guard the wallet, umbrella and lighter, saying the items belonged to her friend.
DISCUSSION
1. Faretta Motion
The United States Supreme Court held in Faretta that a criminal defendant not only has the right to the assistance of counsel, but also “a constitutional right to proceed without counsel when he [or she] voluntarily and intelligently elects to do so.” (Faretta, supra, 422 U.S. at p. 807.) Appellant contends she invoked her right to represent herself in a timely fashion, and the trial court’s denial of her Faretta motion is reversible per se. We disagree.
“Unlike the right to be represented by counsel, the right of self-representation is not self-executing. In Faretta, . . . the court held that a knowing, voluntary, and unequivocal assertion of the right of self-representation, made weeks before trial by a competent, literate defendant, should have been recognized [citation]; subsequent decisions of lower courts have required expressly that the defendant make a timely and unequivocal assertion of the right of self-representation. [Citations.] As one court observed: ‘[T]he right of self-representation is waived unless defendants articulately and unmistakably demand to proceed pro se.’ [Citation.]” (People v. Marshall (1997) 15 Cal.4th 1, 20-21.) Therefore, to invoke an unconditional right of self-representation, the defendant must unequivocally assert the right within a reasonable time prior to the commencement of trial. (People v. Scott (2001) 91 Cal.App.4th 1197, 1203.)
Once a trial against a defendant has begun with the defendant represented by counsel, a Faretta motion for self-representation is addressed to the sound discretion of the trial court, which 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.” (Windham, supra, 19 Cal.3d at p. 128.) A motion for self-representation that is made in passing anger or frustration, an ambivalent motion, or a motion made for the purpose of delay or to frustrate the orderly administration of justice may be denied. (People v. Marshall, supra, 15 Cal.4th at pp. 22-23.) Courts have cautioned that “[e]quivocation of the right of self-representation may occur where the defendant tries to manipulate the proceedings by switching between requests for counsel and for self-representation, or where such actions are the product of whim or frustration.” (People v. Lewis (2006) 39 Cal.4th 970, 1002.)
In the present case, after the conclusion of the prosecution’s case-in-chief, the following interchange took place outside the jury’s presence:
“The Court: [¶] . . . [¶] I heard ‘pro per’ earlier this morning. [¶] Ms. Sperber [appellant’s counsel]?
“Ms. Sperber: Actually, Miss Howard told me she wanted to go pro bono.
“The Court: I heard that, also.
“Ms. Sperber: I explained that meant she would work for free. She said she wanted to do that and be her own lawyer, too. She wants to finish the trial by representing herself. [¶] I have no objection to that, Your Honor.
“The Court: I do. [¶] Even if you were the best recognized attorney in all of California or the United States, once a trial begins, it’s too late for an attorney to substitute in. [¶] But I’ll hear you.
“[Appellant]: Okay. Excuse me. Yesterday I told her that I wanted to go pro per. She ignored me. She turned her back. She had me write down questions. What was done at the preliminary hearing was not done yesterday.
“The Court: Let’s stop, ma’am. Do stop. We’re not talking about the preliminary hearing. We’re asking -- inquiring about you representing yourself. If you made this request yesterday
“[Appellant]: I wasn’t granted from her. You saw me kept raising my hand, okay? I been asking for transcripts.
“The Court: Stop about the transcripts. We are not talking about transcripts. [¶] When did you ask Ms. Sperber to be able to go pro per?
“[Appellant]: Yesterday when she and I was disputing.
“The Court: And what part of the day was that? The morning or the afternoon?
“[Appellant]: The morning portion. From the time I got in here, okay? She is not representing me.
“The Court: Let me stop you for a second. [¶] You and I talked a lot yesterday. You said a lot that I had to cut you off on. We were talking about a lot of things under the sun. Not once, not once, did you mention you wanted to be your own lawyer to me.
“[Appellant]: Okay. Yesterday -- every time that I come here since I been
“The Court: We’re not talking about -- stop. We’re talking about you talking with me yesterday. Why didn’t you ask to go pro per yesterday when you and I were talking?
“[Appellant]: You hushed me before and told me to talk to her, everything had to come through her after I stated that I didn’t want her from the get-go. I been telling you I don’t want her. She is conflict of interest. She knows the security guard. She’s been -- they switched up the whole thing, the questions and everything from prelim. This is not in my best interest. [¶] And I asked her yesterday can I buy an attorney? You both said ‘no.’ And I have that right, just like I had the right to have my transcripts prior to trial. I read the Code books. And I been in here on hearsay over my time and everything. And you got me playing like I’m ignorant or something, and I’m not. [¶] Another judge said they had 10 days to come up with the victims. You guys
“The Court: We’re not talking about
“[Appellant]: I wasn’t able to give her my questions. She pushed them back to me. So I have that right.
“The Court: The reason I have to stop you is you are talking about unrelated things. [¶] The request to go pro per is untimely today or yesterday.
“[Appellant]: Yesterday
“The Court: We will proceed with the trial.” (Italics added.)
Appellant concedes that she made her motion midtrial, after the conclusion of the prosecution’s case-in-chief. At that point, denial of a request for self-representation is not per se reversible: “once a defendant has chosen to proceed to trial represented by counsel, demands by such defendant that he be permitted to discharge his attorney and assume the defense himself [are] addressed to the sound discretion of the court.” (Windham, supra, 19 Cal.3d at p. 128.)
Appellant acknowledges she did not explicitly state that she was ready to proceed to trial on her own without delay. However, she argues that she should have been given the benefit of a doubt regarding the timeliness of her motion because she did not request a continuance at the time of the request. Appellant relies on People v. Tyner (1977) 76 Cal.App.3d 352 and People v. Herrera (1980) 104 Cal.App.3d 167, for this contention.
In People v. Tyner, the court, with limited discussion, held the defendant’s Faretta motion made prior to the jury’s empanelment on the day of trial was timely, and its grant “would not have obstructed the orderly administration of justice.” (People v. Tyner, supra, 76 Cal.App.3d. at p. 355.) At the time defendant made his request, he also indicated he had questions already prepared and could “proceed forthwith” without the necessity of a continuance. (Id. at p. 354.) In People v. Herrera, the defendant made a Faretta motion at his “earliest opportunity,” which was on the day of, but before the commencement of, trial. The appellate court held the Faretta motion was “not untimely” because it was not accompanied by a request for a continuance; it reversed the judgment of conviction finding among other things that the trial court had failed to inquire into the Windham factors underlying the request for self-representation. (People v. Herrera, supra, 104 Cal.App.3d at pp. 174-175.) The appellate court noted, “Without such a record we can only speculate that a consideration of these factors may well have demonstrated to the trial judge reasons to exercise his discretion to allow Herrera to proceed in propria persona.” (Id. at p. 174.)
The present case is distinguishable from People v. Tyner and People v. Herrera. Unlike in People v. Tyner and People v. Herrera, appellant did not make her Faretta motion at the earliest apparent opportunity: She made two Marsden motions prior to her Faretta motion, attended multiple pretrial hearings but remained silent on the issue of self-representation and waited until the conclusion of the prosecution’s case-in-chief before bringing her Faretta motion. That appellant did not ask for a trial continuance when she made her motion is not alone determinative since delay is only one of the Windham factors. (People v. Barnett (1998) 17 Cal.4th 1044, 1106.) The trial court must consider the totality of the circumstances in exercising its discretion, only one of which is the likelihood that the granting of the motion would cause delay. (People v. Lawley (2002) 27 Cal.4th 102, 149-151.) Under all the circumstances reflected in the record, the trial court could reasonably conclude appellant’s request was equivocal and merely a product of appellant’s frustration. Appellant fails to show the court abused its discretion in denying her request.
Alternatively, appellant contends the trial court committed reversible error by not conducting a review pursuant to Windham, supra, 19 Cal.3d 121. The transcript of the proceedings, however, indicates the court made an appropriate inquiry into the basis for appellant’s wish for self-representation. The court afforded appellant a lengthy opportunity to express her reasons for desiring to represent herself, including appellant’s claims that “[w]hat was done at the preliminary hearing was not done” at trial and a belief that her court-appointed attorney had a “conflict of interest” because the attorney knew the security guard and appellant believed they “switched up the whole thing.” The trial court listened to appellant’s reasons before concluding appellant had failed to assert her right to self-representation at her earliest opportunity and the Faretta motion was untimely. After reviewing the record, we find the trial court did not err in denying appellant’s request. (See People v. Halvorsen (2007) 42 Cal.4th 379, 433 [“the timeliness of one’s assertion of Faretta rights is critical”].) The court could reasonably conclude that counsel’s representation was of a high caliber despite appellant’s complaints, and it could reasonably find the length and stage of the proceedings (the second day of an anticipated three-day trial and after conclusion of the prosecution’s case-in-chief), together with the potential for disruption and appellant’s past complaints about her representation in the Marsden hearings, favored denial of the motion for self-representation.
2. Right To Retain Private Counsel
Appellant further contends that the trial court violated her rights under the Sixth and Fourteenth Amendments when it failed to question appellant about her ability to pay for private counsel after appellant stated at the conclusion of her second Marsden hearing, “How come I can’t pay for an attorney?” She argues that if the trial court had properly examined her when she expressed a desire to retain private counsel, the court may have elicited information that would have compelled a continuance to permit appellant to retain her own attorney.
The facts concerning appellant’s contention are these. At the second Marsden hearing held outside the jury’s and the prosecution’s presence and just before the jury panel was summoned to the courtroom, appellant complained to the court that her counsel, Ms. Sperber, had spoken to an inmate and three other witnesses about appellant’s case and purportedly told appellant that she would not represent appellant. Upon the court’s inquiry, however, Ms. Sperber stated to the court that she did not know what witnesses appellant was talking about and she was “a quarter of an inch away” from declaring doubt about appellant’s competency. Ms. Sperber stated that she never told anyone she was going to “not do anything.” She informed the court that she had been through the entire file with appellant, appellant had prior convictions, appellant’s statements to the police were “Mirandized” and there were eyewitnesses to the crime. Although appellant had an absolute right to testify, Ms. Sperber stated she was hesitant to have appellant take the witness stand because appellant had told two or three different versions about the incident.
The court asked appellant about the identities of the witnesses, and appellant gave a rambling response referring to a witness named “Sandra,” another witness named “Myisha Howard” and a third witness whose name was inside a folder. The court attempted to question appellant about what matters “Sandra” could testify to that would help appellant, but appellant only gave a nonresponsive answer. The court then asked appellant if she understood the charge of “petty theft” and eventually elicited that she understood the petty theft charge to be a complaint “[t]hat I took something from someone.” When the court questioned appellant further about what the other witnesses would say in her favor, appellant only replied that her case “should be confidential” and the witnesses “know my case.” Appellant ultimately admitted that none of the three witnesses was present when the alleged petty theft occurred.
Appellant then continued to address the court, saying: “But I’m asking another question. How is my attorney able to talk to another inmate about me and tell her she -- this is why it is a conflict of interest, prejudicial, or whatever the case may be. And then I’m chose to deal with this, and you are not helping me because you allowing certain stuff to go on, too. [¶] How come I can’t pay for an attorney?”
Appellant apparently was accusing Ms. Sperber of discussing appellant’s case with other inmates, an allegation the court found specious.
After a brief pause off the record, the court ruled that “[t]his Marsden matter is resolved. There is no issue here involving anything of Ms. Sperber that she should do or has done that she shouldn’t have done.”
Appellant asserts the trial court erred in “not inquir[ing] as to whether appellant had the funds to retain private counsel, had already made arrangements with private counsel, whether any continuance would be required to obtain counsel and, if so, how much of a continuance.” Appellant asserts that, absent a record on this issue, her constitutional right to counsel of her choice was violated and the denial of that right is reversible per se. We disagree.
Appellant’s question about a private attorney apparently was asked out of frustration, when the second of her Marsden motions was about to be denied and it was evident she had no basis for contending there were witnesses who could support her version of the events. Appellant’s equivocal question, “How come I can’t pay for an attorney?” was obviously raised solely to delay proceedings. There was no showing that appellant had spoken to private counsel, had counsel available to undertake her case without a trial continuance or that appellant could even afford to retain counsel. The probation report, of which we assume the trial court was aware, reflects that appellant was an unemployed student receiving about $800 per month in supplemental security income. Such payments are intended for the truly indigent, and we will presume appellant would not qualify for such entitlements if she had any means to retain a private attorney. Appellant’s reference to paying for an attorney, therefore, was merely an attempt to postpone the imminent trial and to “build reversible error into the record.” (People v. Marshall, supra, 15 Cal.4th at p. 22.) Even if appellant’s rhetorical question could be construed as a request to retain counsel, the trial court did not err in failing to explore the matter further given the circumstances.
Appellant’s reliance on People v. Ortiz (1990) 51 Cal.3d 975, 982-983, is misplaced. Ortiz held that a criminal defendant’s indigence cannot prevent him from discharging in a timely manner a retained counsel that the defendant no longer wishes to represent him. (Id. at pp. 983, 987.) The court explained that “when an indigent criminal defendant is forced to proceed with a retained attorney whom he has consistently, and in a timely manner, sought to discharge in favor of the public defender or other court-appointed counsel,” prejudice is presumed. (Id. at p. 988, italics added.)
However, the same rule does not apply when a criminal defendant seeks to discharge an appointed counsel. When a defendant is represented by court-appointed counsel, “even a timely request for substitution need not be honored unless it appears that denial would substantially impair the defendant’s right to the assistance of counsel.” (People v. Turner (1992) 7 Cal.App.4th 913, 917.) That is because substitution of appointed counsel threatens to waste public resources by creating “ ‘duplicative representation and repetitive investigation at taxpayer expense.’ ” (Ibid.)
In the present case, appellant was being represented by an appointed counsel, and her question about paying for counsel was not timely. Counsel and the witnesses were already assembled, and the jury panel was about to be summoned to the courtroom. Appellant’s belated effort to replace Ms. Sperber on the day of the commencement of trial came too late; replacement of counsel on the day of trial would inevitably have required a continuance. Appellant has not shown any facts establishing the trial court abused its discretion in failing to follow up on her vague reference to private counsel. (People v. Blake (1980) 105 Cal.App.3d 619, 623-624.)
Moreover, neither People v. Crovedi (1966) 65 Cal.2d 199 nor People v. Courts (1985) 37 Cal.3d 784 requires us to reverse the judgment in this case. In Courts, the defendant engaged in a good faith and diligent effort to retain a private attorney two months before the scheduled trial date. He first sought to move for a continuance at the earliest opportunity, over a week before trial, so that he could retain private counsel. By the date of trial, he had already located such counsel and had paid counsel a retainer. (Courts, at pp. 791-793.) Unlike the present case, there was neither a lack of diligence in seeking to replace appointed counsel nor an undue delay in informing the trial court of a desire to retain counsel of the defendant’s own choosing. (Id. at pp. 795-796.)
In Crovedi, the defendant was already represented by private counsel, but counsel suffered a heart attack a few days after trial commenced. (People v. Crovedi, supra, 65 Cal.2d at p. 201.) The trial court continued the trial for two weeks so that defendant could make alternate arrangements. Defendant was unable to obtain experienced substitute counsel despite his diligent efforts to locate one. The trial court refused defendant’s request to declare a mistrial or to continue the trial further to allow existing counsel to recover from his illness. (Id. at p. 202.) Under those circumstances, the Supreme Court held it was a denial of due process for the court not to allow defendant to be represented by the counsel of his choice. (Id. at p. 208.) No such exigent circumstances or diligent efforts are present here.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J., RUBIN, J.