Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA293492, Anita H. Dymant, Judge.
Meredith J. Watts, under appointment by the Court of Appeal, for Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Kevin Marquis Price appeals from the judgment entered after his conviction by a jury for second degree robbery (Pen. Code, § 211) with special findings by the court in a bifurcated proceeding he had suffered three prior serious or violent felony convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1). After the trial was completed, Price asserted his Sixth and Fourteenth Amendment right under Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562] (Faretta) to represent himself and thereafter was sentenced to an aggregate state prison term of 35 years to life. He now argues the trial court erred by failing, sua sponte, to terminate his self-represented status and to consider the Romero motion filed by his previous counsel, but withdrawn by Price, to strike one or more of his prior convictions. We affirm.
Statutory references are to the Penal Code.
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) the Supreme Court held section 1385, subdivision (a), vests a trial court with discretion to dismiss a prior conviction, including a qualifying Three Strikes conviction, “in furtherance of justice.” (Romero, at pp. 529-530.)
FACTUAL AND PROCEDURAL BACKGROUND
Price was arrested in the evening of March 25, 2005 after police officers saw him running on the street away from the scene of a robbery. Although he was initially represented by the public defender’s office, Price retained his own counsel for the trial. He was convicted of second degree robbery on February 27, 2006 and waived his right to a jury trial on the prior serious or violent felony allegations. At the request of his counsel, the bench trial on the prior conviction allegations was continued to allow the filing of a motion for new trial and a Romero motion to dismiss one or more of the prior strike convictions. The motions were filed, but further proceedings were twice continued at the request of Price’s counsel. At a hearing on May 2, 2006 the court granted the request of Price’s counsel to withdraw and re-appointed Price’s previous public defender to represent him during posttrial proceedings. The court granted further continuances to allow Price’s new counsel to prepare and refile the motions previously noticed by Price’s former counsel.
The facts underlying Price’s conviction are not relevant to this appeal. In brief, the victim of the robbery, Sergio Flores testified an African-American man robbed him at gunpoint of $21 while he was walking in a residential neighborhood in south Los Angeles; the perpetrator then ran around the corner from the scene of the robbery. Two police officers inside a squad car stopped when they saw a Black man jogging past and hailed him. The man did not stop; and the officers drove around the corner where they discovered the robbery victim, who told them, “The Black man just robbed me.” The officers gave chase in their car and ultimately forcibly stopped Price and arrested him. Price had $21 in one pocket of his pants and a different sum in another pocket. Although Price was unarmed, the officers later recovered a plastic toy gun in one of the yards on the street where the robbery occurred. Price was identified by Flores and the officers at trial, and Flores also identified the toy gun as the one used in the robbery.
At a hearing on December 4, 2006, before proceeding with the trial on the prior conviction allegations, Price, through his counsel, made a motion under People v. Marsden (1970) 2 Cal.3d 118 to discharge his appointed counsel. After a closed hearing the motion was denied, and the court commenced the trial on the prior serious or violent felony allegations. The court found the allegations to be true and continued the hearing on the posttrial motions until January 9, 2007.
At the rescheduled hearing Price’s public defender advised the court Price had that morning informed him of his wish to represent himself. Price, plainly convinced neither of his lawyers had adequately represented him, indicated his intent to challenge the evidence used against him at trial. Before accepting Price’s Faretta waiver, the trial court advised him forcefully and explicitly of the consequences of his action, including the fact he was sacrificing any opportunity he might have had to allege on appeal his representation in posttrial proceedings was incompetent. Price stated he understood and asked for adequate time to prepare his own motion. After warning Price his sentencing had been pending for nearly a year, the court granted his request, ordered the public defender to turn over his files and postponed ruling on the posttrial motions.
At successive hearings in January 2007 case files were turned over to Price, and the court appointed an investigator to assist him in preparing his motion for a new trial. At a hearing on February 2, 2007 Price requested the appointment of experts to rebut the veracity of certain photographs he contended had been doctored; the court denied those requests based on Price’s failure to demonstrate the photographs had been admitted as exhibits at trial or otherwise contributed to his conviction. The court cautioned Price, who seemed confused about the difference between discovery in preparation for a new trial and the need to proceed with the hearing on his motion for a new trial, to focus solely on sentencing issues and relevant posttrial motions. Setting the next hearing for March 2, 2007 the court instructed Price, if he failed to submit his new trial motion by that date, the court would proceed with sentencing.
Price failed to file his motion for a new trial before the March 2, 2007 hearing. The court announced the matter had been set for sentencing and twice inquired whether Price wanted to proceed with the Romero motion filed on his behalf by previous counsel. Each time, Price answered, “No.” Price instead told the court he wanted to file a motion for a continuance and a motion to compel further discovery. After questioning Price, the court determined he had identified no grounds in support of his motion for a new trial and was instead still focused on proving his innocence in a new trial. After a further exchange in which the court expressed its frustration with the continuing delays and Price asserted he needed more time to gather evidence, the court concluded Price had failed to demonstrate good cause for a continuance and imposed the statutorily directed 35 years-to-life aggregate prison term.
The sentence consisted of a Three Strikes term of 25 years to life on the second degree robbery conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), plus 10 years, five years each, for the two allegations found to be true pursuant to section 667, subdivision (a)(1).
CONTENTIONS
Price does not challenge his conviction or the validity of his waiver of the right to counsel under Faretta. Instead, Price contends, after it became clear he was incapable of protecting his own rights and was not adequately preparing his case for sentencing, the trial court should have sua sponte terminated his self-representedstatus and considered the Romero motion he had withdrawn.
DISCUSSION
A criminal defendant has the right under the Sixth and Fourteenth Amendments to waive the right to counsel and to represent himself or herself. (Faretta, supra, 422 U.S. at p. 819 [“[t]he Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense”].) “‘A defendant in a criminal case possesses two constitutional rights with respect to representation that are mutually exclusive. A defendant has the right to be represented by counsel at all critical stages of a criminal prosecution. [Citations.] At the same time, . . . because the Sixth Amendment grants to the accused personally the right to present a defense, a defendant possesses the right to represent himself or herself.’” (People v. Koontz (2002) 27 Cal.4th 1041, 1069.)
If the defendant is mentally competent and, within a reasonable time before trial, makes an unequivocal request knowingly and voluntarily after having been advised by the court of the dangers of self-representation, the request must be granted. (Faretta, supra, 422 U.S. at p. 835; People v. Valdez (2004) 32 Cal.4th 73, 97-98; People v. Welch (1999) 20 Cal.4th 701, 729.) However, once granted, the trial court is not powerless to revoke the defendant’s self-represented status in certain limited circumstances: “‘The 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, 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.” (Welch, at p. 734.)
A court may terminate a defendant’s right to self-representation if the defendant engages in “‘deliberate dilatory or obstructive behavior’ [that] threatens to subvert ‘the core concept of a trial’ [citation] 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 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, 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.) Each case must be evaluated in its own context and on its own facts (id. at p. 10), and we review a trial court’s decision to revoke a defendant’s right of self-representation for abuse of discretion, giving deference to the court’s “judgment call.” (People v. Clark (1992) 3 Cal.4th 41, 116.) “[T]he extent of a defendant’s disruptive behavior may not be fully evident from the cold record, and . . . one reason for according deference to the trial court is that it is in the best position to judge defendant’s demeanor.” (People v. Welch, supra, 20 Cal.4th at p. 735.)
Citing no authority for his position, Price argues the trial court’s inherent authority to terminate a defendant’s Faretta status gave rise to a duty to do so when he sought yet another continuance and attempted to derail the court’s planned timetable for sentencing him. Relying on the Supreme Court’s instruction that courts should “interpret Faretta in a reasonable fashion to vindicate the legitimate rights of defendants while at the same time avoiding turning the trial into a charade” (People v. Clark, supra, 3 Cal.4th at p. 116), Price asserts he had a “legitimate right” to have his posttrial motions heard and that, when asked by the court to state the grounds for his proposed new trial motion, his colloquy with the judge “displayed that he had no real grasp of what kind of evidence is exculpatory and what is not, what evidence is ‘newly discovered’ and what is not.”
As this argument shows, Price fundamentally misunderstood the concept of self-representation and misses the point of a Faretta waiver. Trial courts are required to fully advise a defendant of the dangers and disadvantages of self-representation and to warn the defendant no appeal will lie from his or her ineffectiveness during the trial (or, as here, posttrial proceedings) precisely because it is almost inevitable a self-represented defendant will fail to understand the benefit of various trial tactics, inadequately present his or her defense and compromise potentially meritorious legal positions. (See generally People v. Blair (2005) 36 Cal.4th 686, 708.) Were we to require courts to interfere and sua sponte terminate a defendant’s Faretta status whenever the defendant, in the course of making his or her own defense, failed to perform as well as experienced counsel, we would effectively eviscerate a defendant’s constitutional right to self-representation.
Price does not suggest he was mentally incompetent to represent himself or that his Faretta waiver was somehow ineffective. The record makes clear Price was frustrated with his appointed counsel and, following the denial of his Marsden motion, elected to undertake his own defense. In taking Price’s waiver of his right to counsel, the trial court repeatedly and pointedly warned him of the folly of his decision and the consequences of it, particularly that which came to pass, the inability to claim he represented himself incompetently. The court twice granted Price’s request for additional time to prepare his own motion for a new trial and appointed an investigator to assist him. Price also had ample warning of the court’s intention to proceed with sentencing if he did not file his motion before the rescheduled hearing. Price’s failure to meet that deadline was no doubt precipitated by his failure to understand what was required of him, but he did not reverse course and ask for counsel to be reappointed. Although he continued to request more time to prepare his motion when the court had already indicated it would not grant a further continuance, he did not become obstreperous or otherwise subvert the court’s effort to complete the proceeding. Under these circumstances, had the trial court intervened and terminated Price’s Faretta status, it would have risked outright reversal. (See, e.g., People v. Poplawski (1994) 25 Cal.App.4th 881 [reversing trial court’s unilateral termination of defendant’s Faretta status based on defendant’s language difficulty and lack of familiarity with legal process]; People v. Clark (1985) 168 Cal.App.3d 91, 95-96 [court not required to reconsider pro se status when defendant’s conduct at trial did not suggest he lacked mental capacity to waive counsel].)
Price does not appeal the denial of his Marsden motion. In any event, there is no indication in the record his appointed counsel was in any way ineffective or failed to diligently represent Price. To the contrary, the trial court expressly commented on the comprehensive preparation of the case by Price’s appointed counsel.
Moreover, although Price’s Romero motion does not on its face appear to be frivolous, the trial court did not abuse its discretion by respecting Price’s decision to withdraw the motion. Asked not once, but twice, if he wished the court to consider his Romero motion, Price answered, “No.” It was not error for the court to accept that waiver.
As Price points out, his two previous serious felony convictions had occurred 12 and 20 years earlier, respectively, and he was gainfully employed for several years preceding his arrest on the robbery charge. He was not on parole, and he had recently married and fathered a child. (See People v. Williams (1998) 17 Cal.4th 148, 161 [directing courts to “consider whether, in light of the nature and circumstances of [a defendant’s] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies”].)
As the Supreme Court explained in People v. Carmony (2004) 33 Cal.4th 367, 375, “A defendant has no right to make a motion, and the trial court has no obligation to make a ruling, under section 1385. But he or she does have the right to ‘invite the court to exercise its power by an application to strike a count or allegation of an accusatory pleading, and the court must consider evidence offered by the defendant in support of his assertion that the dismissal would be in furtherance of justice.’ [Citation.] . . . Nonetheless, any failure on the part of a defendant to invite the court to dismiss under section 1385 following Romero waives or forfeits his or her right to raise the issue on appeal.”
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., ZELON, J.