Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA273205, Curtis B. Rappe, Judge.
Susan K. Keiser, 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 Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant and a codefendant, Fred Brown, were charged with the murder of Byron Lee (count 1), the attempted premeditated murder of Glover H. (count 2), and the attempted murder of Kerry P. (count 3), plus firearms and criminal street gang allegations.
Appellant and Brown had separate jury trials. Brown was tried first. He was convicted of all charges. We affirmed his conviction in a nonpublished opinion. (People v. Brown (Aug. 29, 2008, B201909).)
Appellant’s jury found him guilty on count 1 of the second degree murder of Lee with true findings on the gang and firearms allegations. On count 3, he was convicted of attempted murder with true findings on the gang and firearms allegations and on premeditation. The jury deadlocked on count 2, which was later dismissed on the People’s motion. Appellant was sentenced on counts 1 and 3 to a total of 55 years to life in prison, plus 20 years.
Appellant’s sole contention is that the trial court erred when it denied his motion under Faretta v. California (1975) 422 U.S. 806 (Faretta). The Faretta motion was made on the day of trial during a hearing on appellant’s motion to substitute counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The trial court denied the motion on the ground it was untimely. We find no abuse of discretion in that denial and affirm.
FACTS
Many of the same witnesses testified at appellant’s trial and at Brown’s trial. Appellant and Brown both were members of a street gang called the Hard Time Hustler Crips. The shootings occurred during incursions into the territory of a rival gang, the Family Swan Bloods. Committing such crimes would enhance appellant’s and Brown’s status within their gang and benefit their gang by increasing fear in the community.
On October 7, 2004, Kerry was driving in his car when shots were fired at him from a small green car in which two African-American males were sitting. The green car belonged to Brown’s girlfriend. When a search warrant was later executed at appellant’s home, the police found the gun that was used against Kerry hidden between mattresses in a bedroom. Appellant told his mother during a jailhouse visit that he hid the gun there.
On October 9, 2004, appellant was driving the green car when Brown and a third gang member left it to kill Lee, a boy on a bicycle. Later that afternoon an uncharged crime occurred, during which appellant, Brown, and a third man fired shots from the green car at Michael J.’s car. That night, Porter stood near Brown as Brown told a friend, “We made the news, We went through, and We got ’em.”
Brown returned the green car to his girlfriend the day after Lee was shot. He picked it up again several days later. Firefighters soon found it in an isolated area, engulfed in flames.
The evidence at appellant’s trial included his confession to the police regarding Lee’s murder. Appellant said he was driving the green car, with Brown and a third gang member inside, when they saw the boy on the bicycle. Brown swung the car’s door in an effort to knock the boy off the bicycle. Brown and the other gang member then left the car, chased the boy down an alley, shot him, and drove off with appellant in the car.
DISCUSSION
Appellant contends that the trial court erred when it denied his motion to proceed in propria persona under Faretta, supra, 422 U.S. 806.
1. The Record
On April 15, 2005, appellant was represented at the preliminary hearing by a deputy public defender, John Myers. Myers continued to represent appellant throughout various pretrial proceedings until the public defender’s office declared a conflict of interest on July 10, 2006. The alternate public defender’s office was appointed. That office declared a conflict of interest on July 14, 2006. That same day, the court appointed a bar panel attorney, Lawrence Sperber. Sperber was appellant’s counsel throughout the remaining pretrial proceedings and the trial.
When the case was called for trial on July 30, 2007, appellant requested a substitution of counsel under Marsden, supra, 2 Cal.3d 118. The prosecutor left the courtroom, and the court questioned appellant and his counsel regarding the reasons for the request. When it appeared that the court was preparing to deny the Marsden motion, appellant suddenly made a Faretta motion. The pertinent portion of the hearing shows this discussion:
Pages 16 through 18 of appellant’s opening brief quote the portion of the confidential transcript of the Marsden hearing that is relevant to the Faretta issue. Appellant requested that respondent receive only the pertinent portion of the transcript. (Cal. Rules of Court, rule 8.328(d).) Respondent applied for a copy of the entire confidential transcript. We previously ordered our clerk’s office to give respondent a redacted copy of the confidential transcript, to consist of only the specific portion that is relevant to the Faretta issue.
“THE COURT: And, if need be, just subpoena him in here and we can deal with it here. [¶] All right. I’m going to -- with that proviso deny the motion subject to what I hear further on the matter
“THE DEFENDANT: I would like to go pro per.
“THE COURT: I’m sorry?
“THE DEFENDANT: I would like to go pro per.
“THE COURT: Are you ready to proceed today?
“THE DEFENDANT: I’m not ready to proceed at this moment. No, I’m not.
“THE COURT: Okay. You understand that -- I take it you don’t have discovery in this case; is that correct?
“THE DEFENDANT: No, I don’t -- I have very limited paperwork.
“THE COURT: I’m sorry?
“THE DEFENDANT: All I have is my preliminary hearing transcript.
“THE COURT: Well, how are you going to proceed to defend yourself without even discovery in your possession?
“THE DEFENDANT: As far as [that] we can work on it, can’t we?
“THE COURT: What’s that?
“THE DEFENDANT: Can’t that be something we can work on?
“THE COURT: What do you mean[,] work on? [¶] We’ve got the jury panel out there right now and you’ve indicated you’re ready to proceed to trial right now.
“THE DEFENDANT: No, I didn’t indicate to that [sic].
“THE COURT: That’s what I asked you and you said yes.
“THE DEFENDANT: No. I’m not ready.
“THE COURT: Okay. Well, I’m going to find your request untimely at this point. The panel has been prescreened. We’ve put this trial off a couple of times so that Mr. Sperber could finish other matters and we could begin this case. And, as I say, to the extent that Mr. [H.]’s brother needs to be spoken to that can be done within the time period. The People’s case is going to take a number of days. I can always grant them an in-trial continuance if it’s necessary to get a hold of him. [¶] With respect to the witnesses that you talked about I’ve heard them in the Brown trial and certainly Mr. Sperber is possessed of that testimony, whether they can be impeached, and that can be brought out through their testimony so I don’t think that’s something that would indicate to me that Mr. Sperber has not done his job. [¶] He’s a very qualified --”
After further discussion regarding appellant’s reasons for wanting to substitute counsel, the court denied the Marsden motion, and jury voir dire commenced.
2. Analysis
Appellant contends that, even though he was not ready to proceed that day as his own counsel, the trial court should not have ruled that his request to represent himself was untimely, as there was no showing that he made the request for the purpose of delay, or that granting the request would have interfered with the administration of justice or prejudiced the prosecution’s case. He points out that his request was made after a long series of pretrial delays and two changes of counsel. He also maintains that there was no risk of lost witnesses, as “virtually the same lineup of witnesses” had already testified at Brown’s trial. We reject appellant’s arguments, based on well-established precedent.
“[I]n order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial.” (People v. Windham (1977) 19 Cal.3d 121, 127-128; see also People v. Welch (1999) 20 Cal.4th 701, 729.)
If the motion for self-representation is asserted at a later point in the proceedings, the motion is addressed to the sound discretion of the trial court. (People v. Windham, supra, 19 Cal.3d at p. 128; see also People v. Burton (1989) 48 Cal.3d 843, 852.)
“[A] defendant should not be allowed to misuse the Faretta mandate as a means to unjustifiably delay a scheduled trial or to obstruct the orderly administration of justice. For example, a defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request.” (People v. Windham, supra, 19 Cal.3d at p. 129, fn. 5.) No such showing of reasonable cause was made here.
Appellant asks us to apply the Ninth Circuit’s “bright-line rule for the timeliness of Faretta requests,” which is that “a request is timely if made before the jury is empaneled, unless it is shown to be a tactic to secure delay.” (Moore v. Calderon (9th Cir. 1997) 108 F.3d 261, 264, abrogation on other grounds as recognized by Baker v. City of Blaine (9th Cir. 2000) 221 F.3d 1108, 1110, fn. 2.)
We do not follow the Ninth Circuit rule, as the California Supreme Court declined to do so in People v. Burton, supra, 48 Cal.3d at pages 853-854, and we must follow the holdings of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Moreover, a more recent decision by the Ninth Circuit, Marshall v. Taylor (9th Cir. 2005) 395 F.3d 1058, 1060-1061, held that a California defendant’s Faretta request on the morning of trial was properly denied as untimely, as California’s standard for untimeliness is not contrary to clear United States Supreme Court precedent.
Appellant emphasizes that the prosecutor did not object to his Faretta motion. We give no weight to the lack of an objection, as the prosecutor was not in the courtroom when the Faretta motion was made.
Significantly, in Faretta, supra, 422 U.S. at page 835, and in Moore v. Calderon, supra, 108 F.3d at page 265, the defendants made their requests for self-representation “weeks before trial.” In contrast, in such cases as People v. Burton, supra, 48 Cal.3d at pages 853-854, and People v. Horton (1995) 11 Cal.4th 1068, 1110, no abuse of discretion was found in denial of Faretta motions that were made on the date scheduled for trial. “When California Supreme Court authority has been applied, motions for self-representation made on the day preceding or on the trial date have been considered untimely.” (People v. Rudd (1998) 63 Cal.App.4th 620, 626.) We therefore conclude that there was no abuse of discretion in the denial of appellant’s Faretta motion.
DISPOSITION
The judgment is affirmed.
We concur:
COOPER, P. J., BIGELOW, J.