Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. YA070441, John V. Meigs, Judge, Edward B. Moreton, Jr., Judge.
Christina G. Lechman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, Acting P.J.
Rena Baptise Pryor appeals from the judgment entered following a jury trial in which he was convicted of second degree robbery (Pen. Code, § 211) with the finding that he personally used a deadly and dangerous weapon within the meaning of Penal Code section 12022, subdivision (b)(1), and following a court trial in which he was found to have suffered a prior conviction of a serious or violent felony within the meaning of the “Three Strikes” law (Pen. Code, §§ 1170.12, subds. (a)-(d); 667, subd. (b)-(i)), a serious felony within the meaning of Penal Code section 667, subdivision (a)(1), and served six prior prison terms within the meaning of Penal Code section 667.5. He was sentenced to prison for 14 years and contends the trial court erred when it denied him his Sixth Amendment right to represent himself for sentencing purposes. For reasons stated in the opinion, we affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On October 5, 2007, Mohammed Khan was working the graveyard shift as a cashier at a 7-Eleven store on La Brea Avenue in Inglewood when appellant entered the store. Appellant walked behind Mr. Khan and, while holding a screwdriver, ordered him to “open the drawers.” Mr. Khan gave appellant between $15 and $20 from the first cash register and $50 to $60 from a second register. After receiving the money, appellant fled.
Mr. Khan called 911 and, while speaking to the operator, saw a police car outside the store. Mr. Khan left the store and signaled the police to follow appellant, who was running away. Mr. Khan returned to the 911 operator and reported that appellant had entered a blue Jeep Cherokee automobile. Appellant was subsequently apprehended after being chased by the police. Several days after the robbery, Mr. Khan was shown a photographic lineup and identified appellant as the robber.
DISCUSSION
Appellant contends the trial court violated his rights when it denied his request to represent himself. He asserts that he made the request unequivocally and voluntarily at the first opportunity he had to do so, which was on the day of the priors trial and two months before the sentencing hearing.
On April 28, 2008, the time set for trial on the prior conviction allegations, the court stated it had received a form entitled “advisement and waiver of right to counsel.” When the court asked if appellant wished to represent himself “from here on out” defense counsel stated appellant not only wished to represent himself, he also “wished to at some point... file a motion for a new trial.... [Counsel indicated appellant] would also request... permission to represent himself on the trial on the priors as well, and for sentencing purposes as well.”
In response to the court’s question whether appellant was ready to proceed that day on the trial of the prior convictions, defense counsel stated, “I don’t know. I don’t think so. I think... before actually proceeding with that he would like to do some research and, you know, one, know how to deal with that representing himself, but also I think he’s just looking into trying to prepare the proper moving papers to file the motion for a new trial as well, and so I believe [appellant] is going to ask the court for a continuance on the trial on the priors as well.” Based on that statement, the court responded that it seemed that the motion for self-representation was untimely if it required a continuance of a proceeding.
The prosecutor argued that appellant had ample opportunity to weigh his options, that the verdict had come back six days before, and that the prosecution was ready to proceed with the trial on the prior convictions. Defense counsel argued that appellant was in custody, had been ordered to return on April 28, and could not have come to court earlier to ask to represent himself. Appellant had informed defense counsel he wanted to represent himself the “first thing this morning....”
When the court inquired of appellant why he wanted to represent himself, appellant stated he did not feel that he “was effectively represented by [defense counsel] in the process. There were some ongoing issues that [they] had that [he] felt... weren’t addressed before coming to trial....” When the court asked appellant why he thought he “would do a better job representing [himself] than a lawyer at this point given where [they were] in these proceedings... [appellant responded] [i]t’s not a point of [him] doing a better job. It’s just the things that were left out that... could have had an effect on the trial....”
Thereafter, the trial court denied appellant’s request to represent himself. The court observed it was within its discretion to deny the request because of the timing of the motion. The court stated it believed the request was “untimely. Depending on how you look at it. We’re really in the middle of the trial in this case, although we’ve completed the guilt phase. We were set to begin the priors phase today, but the defendant indicated that he’s not prepared to proceed today. It would cause delay and disruption if [the court] granted the motion. [The court believes] it is a factor that [it] observed [defense counsel], and certainly think[s]... the quality of defense representation has been good and will continue to be good. [The court doesn’t] believe that the reasons asserted by the defendant justify... disrupting the proceedings, and the trial at this point, but the defendant may renew his motion following the trial if he wishes.”
“A criminal defendant has a right to represent himself at trial under the Sixth Amendment to the United States Constitution. [Citations.] A trial court must grant a defendant’s request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial. [Citations.] Faretta error is reversible per se. [Citations.]” (People v. Welch (1999) 20 Cal.4th 701, 729.) “[W]hen a defendant has elected to proceed to trial represented by counsel and the trial has commenced, it is thereafter within the sound discretion of the trial court to determine whether such a defendant may dismiss counsel and proceed pro se.” (People v. Windham (1977) 19 Cal.3d 121,124.) “When such a midtrial request for self-representation is presented the trial court shall inquire sua sponte into the specific factors underlying the request... Among other factors to be considered by the court in assessing such requests made after the commencement of trial are 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 the motion.” (Id. at p. 128.)
Faretta v. California (1975) 422 U.S. 806.
“[A]ppellate courts have concluded that a motion for self-representation made after the jury returns its verdict on a primary offense but prior to commencement of a bifurcated trial on prior convictions is untimely and subject to the trial court’s discretion because proceedings on the priors are merely part of the trial. [Citations.] In each of these decisions, the courts concluded that the motions were actually made during trial, even though they were brought prior to the start of a second phase or stage of the trial. [Citations.]” (People v. Miller (2007) 153 Cal.App.4th 1015, 1023.)
Appellant here moved to represent himself on the day set for the trial of the prior felony conviction allegations. Contrary to appellant’s claim, appellant was not requesting that he be allowed to represent himself at sentencing, which was held two months later, but rather was making the request with regard to the proceeding, the trial on the prior convictions, which was to occur that day. In denying the motion for self-representation, the court advised appellant that he was free to renew his motion following the trial if he wished. Appellant did not do so. While appellant argues the granting of the motion to proceed in pro se would have avoided a conflict of interest with regard to the filing of a motion for new trial based on ineffective assistance of counsel, had appellant made the motion to represent himself following trial, there would have been no conflict.
Further, there was no abuse of discretion when the trial court denied appellant’s midtrial motion for self-representation. The trial court considered the quality of counsel’s representation, listened to the reasons for appellant’s request, considered the stage of the proceedings, and considered the disruption and delay which would follow the granting of such a motion.
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.