Opinion
B227254
12-06-2011
THE PEOPLE, Plaintiff and Respondent, v. THOMAS C. SAWYER, Defendant and Appellant.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, James William Bilderback II , Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA359499)
APPEAL from a judgment of the Superior Court of Los Angeles County. John S. Fisher, Judge. Affirmed.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, James William Bilderback II , Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Thomas Sawyer, on probation for a previous offense, was charged with new offenses and with a violation of his probation. After the court found him in violation, the prosecution dismissed the new charges and Sawyer was sentenced for the probation violation. He appeals, alleging that the court wrongly deprived him of his right to represent himself. Finding no error, we affirm.
PROCEDURAL SUMMARY
Sawyer pled guilty in 2009 to a violation of Health and Safety Code section 11352, subdivision (a). Execution of his sentence was suspended, and he was placed on probation with the condition that he participate in drug treatment. In March 2010, he was arrested for the sale of cocaine. He was held to answer on the new charges, and his probation in the prior proceeding was revoked on March 9, 2010. All hearings were held jointly in both matters.
On April 14, 2010, the court granted his request to represent himself in the new case, and appointed stand-by counsel. Sawyer also filed a motion to disqualify the trial judge pursuant to Code of Civil Procedure section 170.6 on April 14, which the court granted. On April 28, before a new judge, he waived preliminary hearing on the new charges.
On May 24, 2010, Sawyer was in court for arraignment, and the prosecution indicated its intent to set the probation violation hearing before the trial on the new charges, to which defendant objected. Defendant filed a motion under Code of Civil Procedure section 170.1, subdivision (a)(2), which the court denied on May 28, 2010. As during previous hearings, Sawyer raised various motions and requests, but interrupted the court several times, causing the court to warn him of the potential loss of his right to represent himself. The prosecution indicated again that the violation hearing would proceed first, in lieu of the new charges. Defendant objected again to this proceeding and sought to disqualify the judge under Code of Civil Procedure section 170.6. The court denied the motion, because Sawyer had previously used his challenge.
On June 9, 2010, Sawyer filed a motion under Code of Civil Procedure section 170.3, subdivision (c), which the court struck. Sawyer also objected to the court hearing the probation violation, asking that it be returned to the judge who had taken the plea. After the court overruled that objection, Sawyer requested counsel for the violation hearing, stating he had not waived his right to counsel for that hearing. The court asked: "Do you want a lawyer at this time to represent you on the P.V. hearing?" to which Sawyer responded: "Absolutely."
The case was called again on June 11, 2010, at which time counsel who had been appointed as stand-by counsel on the new charges was present. Sawyer stated again that he had not waived his right to counsel on the probation violation matter, and the court inquired again as to whether he wanted to be represented by counsel on that matter. After some colloquy with counsel, the court asked again: "I'm asking you , sir. The D.A.'s saying they're going to try the P.V. first. If you want a lawyer representing you on that, fine. If you don't, just tell me. What is your decision?" Sawyer responded: "Yes. On my probation revocation hearing I want an attorney." The court indicated the matter was concluded, but defendant continued to ask to be heard. He was removed by the bailiff, but then, when the matter was recalled, refused to come into the courtroom. The court terminated his pro per status, "based on his in-court disruptive behavior, both with respect to verbal to the court by interrupting the court after the court had previously on an earlier occasion told him not to do that, calling the clerk a racist off the record and his physical resistance to the bailiff when the bailiff asked him to, at my direction, leave the court." The court relieved prior stand-by counsel, to appoint new counsel in the matter. Two additional hearings were conducted after that date, with defendant represented by counsel at each.
On August 3, 2010, the parties appeared for the probation violation hearing; Sawyer was represented by counsel. Counsel objected to the violation hearing preceding the trial, indicated that Sawyer wanted the case transferred to the judge before whom he had entered the plea, or to withdraw his plea, and stated that Sawyer was asking to have his pro per status reinstated. The court denied all of the motions without further hearing. After hearing testimony and argument from counsel, the court found Sawyer had violated his probation, and proceeded to sentence him. The court granted the prosecution's motion to dismiss the new charges. Sawyer timely appealed, challenging only the denial of his right to represent himself.
DISCUSSION
A defendant has a federal constitutional right to represent himself at trial when he properly elects to do so. (Faretta v. California (1975) 422 U.S. 806.) "When 'a motion to proceed pro se is timely interposed, a trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be.'" (People v. Dent (2003) 30 Cal.4th 213, 217, quoting People v. Windham (1977) 19 Cal.3d 121, 128 (Windham).) Sawyer, having specifically requested counsel for the probation violation hearing, did not have an unequivocal right to ask to represent himself on the morning of that hearing. Rather, the determination whether to grant that request was within the discretion of the trial court. (Windham, supra, 19 Cal.3d. at p. 128.)
Sawyer argues on appeal that he did not understand that the probation violation hearing would be tried prior to the new case until the morning of the violation hearing, and therefore asserts his request was timely. The record does not support that assertion.
In Windham, defendant sought to represent himself on the third day of trial, a request denied by the court as untimely. On review, the Supreme Court held that a defendant seeking to represent himself must make such a request, in an unequivocal manner, prior to the start of the trial for that request to be unconditionally granted. Where the request is presented later, the court has discretion to deny the request, but is obligated to make a sua sponte inquiry as to the specific reasons for the request prior to exercising its discretion to grant or deny the motion. (Windham, supra, 19 Cal.3d. at p. 128.) The court must consider such factors such as the quality of counsel's representation, whether there is a pattern of substitution of counsel, the defendant's reasons, the state of the proceedings, and the disruption or delay that could result from the grant of the request. (Ibid.)
Although, unlike Windham, this request was not made during the trial, but on the day trial was to begin, a number of cases have held such motions made on the eve of trial are untimely. Windham concluded that even a motion made the day before trial was left to the discretion of the court. (Windham, supra, 19 Cal.3d at p. 128, fn.5.) (See also People v. Lynch (2010) 50 Cal.4th 693, 722-723, disapproved on other grounds in People v. McKinnon (2011) 52 Cal.4th 610.) The timeliness requirement is intended to, among other things, prevent "'obstruct[tion of] the orderly administration of justice.'" (People v. Lynch, supra, at p. 722.) Presented with such a decision, the trial court must consider the totality of the circumstances, including whether the defendant had an earlier opportunity to request self-representation. (Id. at p. 726.)
Here, defendant made his request on the day of the hearing, having previously not only had the opportunity to request self-representation, but instead having unequivocally demanded the appointment of counsel. While the request was not midtrial, it was nonetheless untimely. Thus, the court appropriately considered the question as one within its discretion.
The court denied the motion without any discussion and without the required sua sponte inquiry. That failure, however, is not the end of the analysis. Where the reasons that would support a denial are clear on the record, this court can infer the basis for the trial court's conclusion and affirm the decision.
In People v. Perez (1992) 4 Cal.App.4th 893, defendant made a Faretta motion on the day of trial; the trial court denied it without permitting argument and without a Windham inquiry. On appeal, the court concluded that the record demonstrated sufficient basis for the denial, in light of the prior proceedings in the case. (Id. at p. 904.) The court, however, cautioned that "[o]ur conclusion does not reflect our belief a court is relieved from complying with Windham merely because the reasons for the court's exercise of discretion may later be gleaned from the record. Windham mandates a court provide the defendant an opportunity to show the specific facts weighing in favor of granting an untimely motion. 'A trial court should 'establish[] a record based on [the] relevant considerations' to facilitate appellate review. (People v. Windham, supra, 19 Cal.3d 121, 128-129.)' (People v. Hill [(1983)] 148 Cal.App.3d [744,] 759; accord People v. Hernandez [(1983)] 163 Cal.App.3d 645, 650-653.) Where, as here, however, the reasons for the denial of the motion are absolutely clear on the record, we conclude there will be no detrimental effect on the justice system for the appellate court to draw the inferences necessarily implied by the court's ruling." (Id. at p. 905, fn.10.)
The Perez court concluded that the facts there justified the implied findings by the trial court that the request was a device intended for disruption. In this case, the record also supports such implied findings. Sawyer made a number of attempts to remove the judge to whom the matter was assigned, apparently in an attempt to return to the court where his plea had been taken. Sawyer had also, on two separate occasions, insisted after questioning by the court that he wished to be represented by counsel in these proceedings and had never, until the moment of trial, indicated that he wished to represent himself. Moreover, with respect to the new case in which he had requested and received the right to represent himself, he had lost that right through his own inability to comply with the rules of the courtroom. As the same judge presided over all of these proceedings, he had ample knowledge of the history of the case and the tendency of the defendant to disrupt the proceedings. The reasons were clear to the judge, and they are clear on the record before us. We give great weight to the exercise of discretion by the trial court, and base our determination on the totality of the circumstances at the time of the decision. (People v. Howze (2001) 85 Cal.App.4th 1380, 1397-98.) Doing so, we find no abuse of discretion in this case.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
ZELON, J.
We concur:
PERLUSS, P.J.
JACKSON, J.