Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. LA057137, Michael A. Latin, Judge.
Michele A. Douglass, 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, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, and Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, P. J.
Raul Rodriguez appeals from the judgment entered following a jury trial in which he was convicted of one count each of sale of cocaine base, possession of cocaine base for the purpose of sale, possession of cocaine for the purpose of sale, and possession of methamphetamine for the purpose of sale. The convictions arose out of an October 18, 2007 incident in which defendant and Fernando Gomez sold rock cocaine to an undercover police officer, following which other narcotics were found in defendant’s residence. Following the verdicts, defendant admitted having suffered a prior conviction on which he had served a prison term and which also qualified under the “Three Strikes” law. Defendant contends that the trial court erred in denying his request for self-representation. We affirm.
Gomez was tried jointly with defendant and convicted of a single count of sale of cocaine base. He is not a party to this appeal.
BACKGROUND
At a pretrial hearing conducted on December 5, 2007, the prosecutor noted that defendant had been charged with two strike prior convictions but that a plea offer had been made in which only one of the strike allegations would be pursued and defendant would be sentenced to six years in state prison. A plea offer had also been made to Gomez. Both defendants declined the respective offers and the matter was put over to January 9, 2008. Defendant, who was being represented by Los Angeles County Deputy Public Defender Anna Brief, stated that he wanted a different lawyer. Upon this request, a hearing was conducted under People v. Marsden (1970) 2 Cal.3d 118.
At the Marsden hearing, defendant complained that Attorney Brief had not spent sufficient time with him and that the offer of six years was too high inasmuch as he had been told his maximum exposure was three to five years. Defendant asserted that he had been an outstanding citizen since his release from prison 10 years earlier and had fallen back into trouble only when his family moved to Palm Springs and he could not get a job there. Brief told the court that she had mentioned the possibility of a three to five year term if she could get both strike allegations dismissed but that the prosecutor was unwilling to do this. Defendant asked if he could get a private lawyer. The court told defendant that he could but ruled that defendant had not provided a sufficient reason to replace appointed counsel. The court also reminded defendant that the case was set for trial on January 9, 2008. Defendant asked if he could get more time, and the court responded, “No, because you’ve got a co-defendant here, and that complicates it. You’ve got a month to see if that’s what you want to do.” Brief stated that if she were contacted by a new lawyer, she would file a request for a continuance.
The case was called on January 9, 2008, which was day 55 of 60 for defendant and day 56 of 60 for Gomez. The court stated that trial would start in a day or two, and reminded both defendants of the favorable plea offers the prosecutor had made. Defendant said that he wanted to “present some evidence that might shed a little light in the circumstances that led to [his] arrest.” The court responded that it could give a day or two and asked if the evidence went to guilt or sentencing. Defendant replied that his evidence went to sentencing. The court again noted the lenient plea offer made to defendant in the face of the possibility of a sentence of 25 years to life and advised defendant to talk over any further plea offers with his lawyer. Defendant responded that he had been looking for a new lawyer and needed more time to raise money. The court said that it would give defendant 45 days to hire new counsel.
Following a recess, the court again asked defendant if he was willing to accept the prosecutor’s plea offer, and the following colloquy ensued:
THE COURT: “You are being offered six years in the state prison. You’ve already been in for several months on this case. [¶] Are you rejecting that offer?
“DEFENDANT RODRIGUEZ: I’d like to get something clear, Your Honor.
“THE COURT: Answer my question first.
“DEFENDANT RODRIGUEZ: Oh.
“THE COURT: Are you rejecting that offer?
“DEFENDANT RODRIGUEZ: I’d like to plead guilty with an explanation representing myself pro per. I’m not sure of the legal proceedings here, but I would like to present
“THE COURT: I need to know first from you — I’ll deal with all that stuff afterwards. Are you accepting the offer or rejecting the offer?
“DEFENDANT RODRIGUEZ: Rejecting the offer.”
The court next confirmed that codefendant Gomez was also rejecting the prosecutor’s offer. The court then asked defendant, “Mr. Rodriguez, were you requesting to go pro per — did you want to represent yourself through the trial?” Defendant responded that he would go to trial with codefendant Gomez’s lawyer. The court said that that was not possible and added, “I just want to make sure that you are not asking to represent yourself.” Defendant responded, “No.” The discussion next turned to defendant’s statements that although he did not deny guilt, he wanted time to marshal evidence in mitigation of sentence. The court once again referred to the prosecution’s favorable plea offer. Defendant said he wanted another opinion on the plea offer, and Attorney Brief offered to let defendant speak to someone else from her office. A recess for lunch was then taken.
After the recess, Brief stated that another deputy public defender in her office had spoken with defendant and “we have gotten so far as to reach the understanding that [defendant] is getting everything he wants, however, he is still insisting on a trial.” Defendant next stated that he wanted to hire private counsel. The court engaged defendant in an extensive discussion about the benefits of accepting the plea offer. Defendant again stated that he did not deny his guilt but emphasized that he was not a young man and wanted to be able to give an explanation that might affect his sentence.
Attention next returned to defendant’s pending request to represent himself, and the following colloquy ensued:
THE COURT: “Mr. Rodriguez, give me your best pitch. Why do you want to go pro per?
“DEFENDANT RODRIGUEZ: Your Honor, like I said, I always admitted my guilt, but I don’t feel the time is appropriate — my sentence is appropriate for the crime I’ve committed.
“THE COURT: But you want to do a jury trial on the question of guilt, and in a case where you’ve already told me where you don’t contest that you are guilty, and now you want to represent yourself at that trial. Explain how you would defend yourself.
“DEFENDANT RODRIGUEZ: To be honest, I don’t know what the procedures are here. I’d like to investigate a little bit about that, see what my rights are, see what I can do to help my case, and just put myself on the mercy of the court. I just want to see if like — the second opinion.
“THE COURT: Isn’t that what you just got?
“DEFENDANT RODRIGUEZ: But it’s from the same personnel that are here. I’d like
“THE COURT: Have you ever met Mr. Gottlieb before?
“DEFENDANT RODRIGUEZ: No, no.
“THE COURT: And he’s done nothing on this case other than come talk to you, give you a — review it and give you an opinion. He has
“DEFENDANT RODRIGUEZ: Right.
“THE COURT: He has no interest in how it’s resolved, and believe me, he’s an aggressive attorney. If he disagreed with your attorney, and thought that this was a good case to take the [sic] trial, he would have let you know. He would fight it. He’s a fighter.
“DEFENDANT RODRIGUEZ: Yes, he is a — he is very aggressive.
“THE COURT: And probably has been fighting you because he knows you’re doing the wrong thing.
“DEFENDANT RODRIGUEZ: Yeah. I just want — I just
“THE COURT: I’m not
“DEFENDANT RODRIGUEZ: I just want to do the best I can for myself.
“THE COURT: Well, you seem to be — so far, you’re your own worst enemy. You do have people who are working for you. I’m not going to allow that — the reason is this, and let me articulate it.
“I don’t think you understand the sufficient degree of sophistication, what the issues are in a jury trial. And you don’t — you have said to me repeatedly, that you don’t really contest guilt, but you want me to know the circumstances. And yet, when it comes time to get you to acknowledge your guilt, you don’t do it.
“And you want your trial. I’ve
“DEFENDANT RODRIGUEZ: Basically what I want is to obtain second opinion from somebody or from a law library anywhere, to see if I have any option.
“THE COURT: The second opinion means two people. And you’ve had two people. You got that second opinion. You keep saying that you want
“DEFENDANT RODRIGUEZ: But somebody from a private sector, Your Honor.
“THE COURT: Well, you know, I’m going to set it for trial. I’m not going to let you go pro per because I don’t think you’re prepared to try the case right now.
“DEFENDANT RODRIGUEZ: No.
“THE COURT: You agree with that, right?
“DEFENDANT RODRIGUEZ: (Nodding head.)
“THE COURT: Right?
“DEFENDANT RODRIGUEZ: Yes, I’m not prepared.
“THE COURT: Okay. So I’m going to keep you with your attorney. Look, the case starts tomorrow at 1:30.
“DEFENDANT RODRIGUEZ: I definitely don’t want that attorney, Your Honor. I don’t want either attorneys.
“THE COURT: Well, that’s the one you have.
“DEFENDANT RODRIGUEZ: I’d like to go pro per, then.
“THE COURT: I know, but you’re not ready. You just told me that, and I can’t let you represent yourself if you’re not ready to represent yourself. You’re not able to proceed. And you can’t use it as a stalling tactic.
“DEFENDANT RODRIGUEZ: I’m not trying to stall, Your Honor. I’m not trying to take up any more
“THE COURT: What you can do is this, if you have private counsel that you want to retain and bring in tomorrow morning
“Let me finish.
“DEFENDANT RODRIGUEZ: I want
“THE COURT: — then
“Let me finish.
“Then bring somebody in, by all means, and get another opinion. But when you talk to that person tomorrow morning, you’ll be talking about an eight-year offer and not a six-year offer, so let them know that your offer is eight and not six, and I’m sure they will urge you to take the eight, I have no doubt.
“DEFENDANT RODRIGUEZ: Okay.
“THE COURT: But sure, go ahead.
“DEFENDANT RODRIGUEZ: That’s all I want to do is ask somebody.
“THE COURT: Sure. Hire somebody to come talk to you in the morning, and I’ll bring you in in the afternoon, and after talking to that person, if you want to change your plea, and take the eight, I’ll be happy to address that with you tomorrow.
“DEFENDANT RODRIGUEZ: One question, Your Honor, what if I weren’t able to get somebody as quickly as tomorrow?
“THE COURT: Then you’re sort of out of luck. This — this case didn’t just drop out of the sky yesterday.
“DEFENDANT RODRIGUEZ: No.
“THE COURT” And you’ve been in custody since middle third of last year. You had time. It’s now time for you to make that decision.
“DEFENDANT RODRIGUEZ: Okay.
“THE COURT: And go for it. And get somebody here to represent you.
“DEFENDANT RODRIGUEZ: Well, I’d like to go pro per because I don’t think I can get somebody that quick, because my communication — I don’t have no funds to call my family or anything.
“THE COURT: Remember, we talked yesterday about you repeating yourself? You’re repeating yourself again.
“DEFENDANT RODRIGUEZ: Sorry.
“THE COURT: It’s okay.
“DEFENDANT RODRIGUEZ: I’m very nervous. I don’t know what the proceedings are, and I’d like to go pro per.
“THE COURT: You’re repeating yourself. That’s already been — once I deny it, that’s it.
“DEFENDANT RODRIGUEZ: Okay.
“THE COURT: All right. Well, I’ll trail this matter to tomorrow at 1:30 for jury selection, and order a panel, and I’ll see you here.
“DEFENDANT RODRIGUEZ: Thank you, Your Honor.
“THE COURT: Okay.”
Defendant did not again raise the issue of new counsel, and the trial proceeded with defendant represented by Deputy Public Defender Brief. At sentencing, it was agreed that defendant would admit only one of the two alleged prior convictions under the Three Strikes law. Defendant was sentenced to a total term of 10 years 4 months in state prison.
DISCUSSION
“[T]he United States Supreme Court has held that a defendant in a state criminal trial has a federal constitutional right to represent himself without counsel if he voluntarily and intelligently elects to do so. (Faretta v. California (1975) 422 U.S. 806, [45 L.Ed.2d 562, 95 S.Ct. 2525].)” (People v. Windham (1977) 19 Cal.3d 121, 124.) Defendant contends that his right to self-representation was violated in this case. We disagree.
“To invoke the constitutional right to self-representation, a criminal defendant must make an unequivocal assertion of that right in a timely manner. [Citation.] ‘The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant’s conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant’s conduct or words reflecting ambivalence about self-representation may support the court’s decision to deny the defendant's motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied. [Citation.]” (People v. Barnett (1998) 17 Cal.4th 1044, 1087.)
“In order to invoke an unconditional right of self-representation, the defendant must assert the right ‘within a reasonable time prior to the commencement of trial.’ [Citations.] A motion made after this period is addressed to the sound discretion of the trial court. [Citations.]” (People v. Burton (1989) 48 Cal.3d 843, 852.) The Supreme Court further explained: “Our imposition of a ‘reasonable time’ requirement should not be and, indeed, must not be used as a means of limiting a defendant’s constitutional right of self-representation. We intend only that 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 . . . .” (People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5.)
Here, defendant repeatedly conceded his guilt and sought to represent himself based solely on dissatisfaction with the prosecutor’s plea offer and some misguided sense that, if represented by different counsel or by himself, he could gain a lower sentence. In addition, defendant’s request to represent himself was not made in a timely manner. Trial was about to start, and in response to a question of how he would defend himself, defendant admitted he did not know what the procedures were but would “like to investigate a little bit about that, see what my rights are, see what I can do to help my case, and just put myself on the mercy of the court.” Indeed, what defendant was most focused on was getting another opinion from a “private sector” attorney. As such, defendant’s request for self-representation, made on the eve of trial, could hardly have been more equivocal, and there is nothing in the record to support defendant’s assertion that the trial court abused its discretion in denying self-representation. The trial court did not err in denying defendant’s request for self-representation.
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, J., WEISBERG, J.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.