Opinion
C087020
09-19-2019
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL BRADLEY RITTENHOUSE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MANCRFE20170009503)
A jury found defendant Michael Bradley Rittenhouse guilty of second degree commercial burglary and vandalism of $400 or more and found true the special allegations that defendant had prior strike convictions for assault with a firearm and first degree burglary. The trial court sentenced defendant to state prison for an aggregate term of six years.
Defendant's sole contention on appeal is that the trial court abused its discretion in denying his postverdict request to represent himself. We find defendant's unequivocal motion was timely made, and thus, vacate the sentence and remand for further proceedings consistent with this opinion.
PROCEDURAL BACKGROUND
We focus this description given defendant's narrow appellate challenge.
Following motions in limine and on the day scheduled for jury selection, defendant's first public defender told the court that defendant had informed him that morning of previously undisclosed and potentially exculpatory evidence necessitating a continuance of the trial, which was granted over the People's objection. A few months later, during the rearguing of the in limine motions, defendant brought his first Marsden motion to replace his counsel complaining of discovery issues, including that his counsel had failed to secure video footage of the Taco Bell safe being locked on the evening preceding the charged burglary. During the course of the Marsden hearing, it became clear that there was no video of the safe being locked. There was further discussion of the discovery issues, which alleviated defendant's concerns, and the motion was denied.
People v. Marsden (1970) 2 Cal.3d 118.
Defendant's trial began soon thereafter. During a break in the testimony of the fourth prosecution witness, defendant requested removal from the courtroom. The court counseled defendant against absenting himself from the proceedings, but following an advisement of defendant's rights and execution of the appropriate waiver form, the court allowed defendant to be excused. Shortly thereafter, the People rested. The court denied defendant's Penal Code section 1118.1 motion to dismiss, and defendant continued to waive his presence following consultation with his attorney. He did not present a defense case.
Undesignated statutory references are to the Penal Code.
The evidence that was presented at trial may be fairly summarized as showing that defendant was identified as being on surveillance video entering a broken window of a Taco Bell, opening the registers, taking the money, and then leaving. The recording of the break-in was played for the jury and admitted into evidence. Officer Lisa Lewis reviewed the video and confirmed that defendant's distinctive walk, neck tattoo, and shoes were all consistent with the person recorded in the video. Officer Garret Morrison also testified regarding defendant's neck tattoo, shoes, and further confirmed that defendant and the person in the video both walked with their right foot canted out.
On March 1, 2018, the jury convicted defendant as charged and the matter was set for sentencing. At the first sentencing hearing on March 29, 2018, defendant announced he wanted to make a motion for "ineffective counsel, new trial." The court cleared the courtroom and started to inquire regarding defendant's request, but then stated: "Under these circumstances, I think I'm required to relieve [the defense attorney], so I will relieve her." When appointing defendant's next attorney on April 2, 2018, the court explained that it had relieved the public defender at the sentencing hearing because defendant wanted to file a motion for a new trial.
On April 23, 2018, at defendant's next hearing for purposes of scheduling the new trial motion and sentencing, defendant made another Marsden motion. At the Marsden hearing, defendant asserted he had "a conflict of interest" with his new attorney, complaining that attorney was stuck on the probation report and was not listening to his desire to file a motion for a new trial. Defendant alleged the new attorney had yelled at him, causing him to leave the room. Defendant's attorney explained he had seen defendant twice, that defendant had been uncooperative, but he had nonetheless investigated the possible bases for a new trial and concluded there were no issues warranting a new trial motion. Defendant was given a chance to respond and said, "Well, I want to fire him because I don't want him as my attorney. If nothing else, I'll go pro per." Ultimately, the court denied the Marsden motion, noting defendant was difficult to work with and his conflict amounted to a disagreement with his attorney's assessment that there was no basis to file a new trial motion. In response, defendant asked to file a Faretta motion.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
Once back on the record in open court, defendant reiterated, "I'd like to file a Faretta motion." The court counseled defendant against representing himself, explaining he would not get special consideration or be able to argue his competency on appeal. The court elicited that defendant had a high school education and then asked defendant how long it would take him to prepare his motion for a new trial and sentencing. Defendant indicated he needed to get copies of the probation report, sentencing brief, and trial transcripts. The court stated it would not order the trial transcripts because defendant was present. The court and defendant then discussed defendant's desire to have a transcript from a pretrial hearing, which the court refused. Defendant then stated, "No, the motion for the new trial is for the -- I have that right here. . . . Do I just need to argue why I want the new trial now then?" The court responded that it was still considering defendant's request to represent himself, advised defendant of his maximum exposure, and provided him the Faretta waiver form to complete.
The court then ruled on the Faretta motion, stating: "During the last trial, the defendant made a Marsden motion. It was denied. And then in the middle of the trial, the defendant voluntarily absented himself from the courtroom, did not wish to participate. He filled out a form acknowledging his request to remain out of the trial. I brought him in and advised him he could remain if he wished. I asked him if he wanted to come back. He said he did not want to. And the trial proceeded without him. I warned him that that would not be a good thing for him because even though I advised the jury, and I told him I'd advise the jury not to hold that against him, that there was a good possibility that the jury nevertheless would hold it against him for not being present. In any case, I instructed them not to. He was then found guilty of all charges.
"So now, today we had another Marsden motion, which was denied. And now the defendant wants to represent himself. However, the law is that the trial court can deny a request for self-representation when the defendant is unwilling to abide by rules of procedure and courtroom protocol. Also, even this morning, we've had interruptions, not on this record,[] but nevertheless, they occurred by the defendant. I don't believe the defendant is able to comply with courtroom protocol on his own and I don't think that -- I think this is an exception to the Faretta rule. I don't think that he should be allowed to represent himself, especially since we are -- we have finished the trial. The only remaining issue is a motion for new trial and sentencing. So the motion to represent himself will be denied."
It appears that the court may have been referring to defendant interrupting the court during the Marsden hearing that day, the record of which was sealed. These interruptions were minor.
Given that defense counsel was not going to file a motion for a new trial, the court proceeded to conduct the sentencing hearing that day with defendant's consent. The court sentenced defendant for the burglary in count one to the upper term of three years, doubled to six years because of the serious felony priors, and imposed the same sentence for the vandalism in count two concurrent, which it then stayed pursuant to section 654. The court also imposed a $300 restitution fine (§ 1202.4, subd. (b)), a $300 suspended parole revocation fine (§ 1202.45), a $40 security fee (§ 1465.8), and a $30 criminal conviction fee (Gov. Code, § 70373). Defendant timely appealed.
DISCUSSION
"A criminal defendant has a constitutional right to counsel at all critical stages of a criminal prosecution, including sentencing. (Mempa v. Rhay (1967) 389 U.S. 128, 134-137 ; [citation].) The right to counsel may be waived by a criminal defendant who elects to represent himself at trial. (Faretta v. California, supra, 422 U.S. at pp. 807, 834-835.) The right of self-representation is absolute, but only if a request to do so is knowingly and voluntarily made and if asserted a reasonable time before trial begins. Otherwise, requests for self-representation are addressed to the trial court's sound discretion. [Citation.] Moreover, whether timely or untimely, a request for self-representation must be unequivocal. [Citation.] [¶] On appeal, a reviewing court independently examines the entire record to determine whether the defendant knowingly and intelligently invoked his right to self-representation." (People v. Doolin (2009) 45 Cal.4th 390, 453 (Doolin).)
Thus, we determine whether defendant's Faretta motion was both unequivocal and timely. First, we are unpersuaded that defendant's request was equivocal. Defendant's first mention of representing himself was equivocal, stating: "Well, I want to fire him because I don't want him as my attorney. If nothing else, I'll go pro per." However, defendant then unequivocally stated he wanted to make a Faretta motion when it became clear that the court was not going to grant his Marsden motion, and then reiterated that he was making a Faretta motion following the closed hearing. While defendant wanted to get copies of certain documents and transcripts, he stated he was prepared to argue his motion for a new trial that very day, and it appeared that he had such a drafted motion with him in court. Defendant also completed the Faretta waiver form provided by the court. Thus, defendant's words and actions support the conclusion that he unequivocally invoked his right to represent himself. (See People v. Marshall (1997) 15 Cal.4th 1, 23 [in evaluating equivocation, a court should consider whether defendant clearly stated his request, as well as defendant's conduct and words].)
Second, we must decide whether defendant's motion was timely. The California Supreme Court has not expressly decided whether a Faretta motion made after completion of trial but prior to sentencing may be considered timely. (Doolin, supra, 45 Cal.4th at p. 454.) However, our review of the relevant authorities leads to the conclusion that it could be.
In People v. Miller (2007) 153 Cal.App.4th 1015, 1023-1024 (Miller), the court determined that a Faretta motion brought two months before the sentencing hearing was timely and thus a matter of right. It reasoned the potential concerns militating against self-representation requests made during a trial do not apply to a sentencing hearing, which is separate and occurs after the completion of trial. (Miller, at p. 1024.) "Much as a request to represent oneself at trial must be made a reasonable time before trial commences, the request for self-representation at sentencing must be made within a reasonable time prior to commencement of the sentencing hearing." (Ibid.)
A year later, the California Supreme Court in Doolin acknowledged the Miller opinion but declined to decide "the timeliness of a request for self-representation made after the penalty phase verdict" because that defendant's request was "manifestly untimely" having been brought the day of the sentencing hearing and without any plan for proceeding pro per. (Doolin, supra, 45 Cal.4th at pp. 454-455, fn. 39.)
The possibility that a postverdict, presentencing Faretta motion may be timely if brought a reasonable time before sentencing appears to have its genesis in People v. Mayfield (1997) 14 Cal.4th 668, 810. There, the court assumed for purposes of argument "that a postverdict self-representation motion may be timely if made a reasonable time before sentencing." (Ibid.) However, it found the defendant's request untimely because (1) "[i]n determining what constitutes a 'reasonable time' before sentencing, a trial court must necessarily consider the delay that would be occasioned by granting the motion"; and (2) there the defendant was seeking a delay of at least six months. (Ibid.)
In light of these authorities, we conclude a defendant who brings a Faretta motion within a reasonable time prior to the sentencing hearing has timely requested self-representation. We further find that defendant here did make a timely request. First, defendant made the request at a hearing that was set for the scheduling of his new trial motion and sentencing, not for the merits of either of these proceedings. Further, defendant was prepared to proceed that day on the new trial motion, such that allowing defendant to represent himself would not have caused a delay. (See People v. Braxton (2004) 34 Cal.4th 798, 807, fn. 2 [trial court must entertain new trial motion even when not made in advance of a scheduled sentencing hearing and not made in writing].) Under these circumstances, it is apparent that defendant made his request within a reasonable time.
Because defendant's request was unequivocal and timely, the trial court was required to grant this request "as long as he was mentally competent and the request was made 'knowingly and intelligently, having been apprised of the dangers of self-representation.' (People v. Welch (1999) 20 Cal.4th 701, 729.)" (Miller, supra, 153 Cal.App.4th at p. 1024.) The trial court did not conduct this inquiry, and thus, we must reverse defendant's sentence and remand for further proceedings. (Miller, at p. 1024.)
DISPOSITION
The judgment is vacated and the matter remanded for further proceedings consistent with this opinion. We also note that should the court impose the same sentence following remand, that any new abstract of judgment must be amended to reflect the six-year term imposed but stayed on count two, and should eliminate a $30 "Surcharge" listed under No. 13, unless the court at the new sentencing hearing separately imposes this surcharge.
This surcharge was listed on the minute order from the sentencing hearing but was not actually imposed by the court at sentencing. --------
/s/_________
Butz, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Murray, J.