Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Amalia Meza, Judge, Super. Ct. No. SCN173370
AARON, J.
In June 2005, Robert Taylor entered a negotiated guilty plea to assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and admitted having suffered a prior strike conviction (§§ 667 subds. (b)-(i), 1170.12, 668). In March 2006, the court sentenced Taylor to a stipulated term of four years in prison (twice the lower term), to be served consecutively to his sentence in another case. Taylor appeals, contending that the court erred by denying his June 2004 motion to represent himself. We affirm.
All statutory references are to the Penal Code unless otherwise specified.
BACKGROUND
At the February 11, 2004 preliminary hearing, Taylor interrupted the proceedings twice. The first time, he told the court, "You're wrong" after the court sustained an objection by the prosecutor. The court said, "Mr. Taylor —," but Taylor continued speaking. The second time, Taylor said, "Excuse me" while defense counsel was conducting cross-examination. The court told Taylor not to communicate with the court. Taylor responded that he was speaking to defense counsel. The court then said, "Let your lawyer do the lawyering," and Taylor replied that he wanted to ask a question.
The information filed on February 27, 2004, charged Taylor with one count of corporal injury to a cohabitant (§ 273.5, subd. (a)) and one count of assault by means likely to produce great bodily injury, and alleged one prior strike conviction. On April 27, the court denied Taylor's first Marsden motion (People v. Marsden (1970) 2 Cal.3d 118). After the court set a June 28 trial date, Taylor said, "You just mother fucking probation to me this three, four fucking times."
On June 28, 2004, Taylor brought a second Marsden motion. During the course of the Marsden hearing, Taylor admitted that he had called "everybody . . . in the courtroom names" and acknowledged, "I called the D.A. a bitch." He also said, "No offense to Ms. Brenner [defense counsel], but you and the D.A. got some kind of bullshit ass game going on." Although Taylor complained about his counsel, he said, "I think we can work together."
The court asked defense counsel whether there was an irreconcilable problem that prevented her from adequately representing Taylor, and she replied in the affirmative. Counsel further stated, "With wanting to represent himself he has to understand, and a lot of times you will see that in a divorce where the husband or the wife knows so much about the case and is so emotionally involved, they don't think the attorney can do a good job, and he doesn't give me the faith that I can do a good job because he's so emotionally involved in it."
The court asked Taylor whether he would "rather have an attorney that you feel you can communicate with better because it's the only way you think you will get a fair trial. Is that what it comes down to?" Taylor replied, "It comes down to wanting her to communicate with me," and resumed complaining about his attorney. The following colloquy then occurred:
"THE COURT: Mr. Taylor, you do want a different attorney than Ms. Brenner. That's why you are here to ask me to do that.
"[TAYLOR]: I say things out of, you know, sometimes I say things because I was mad. If she don't want to represent me, I can represent myself. I feel I can represent myself just as well as she could represent me. I could sell myself down the river for 14 years. I don't need help getting 14 years. If I would get 14 years, let me get myself 14 years. Let me do it. Let me give myself 14 years. That's real. I need no attorney.
"THE COURT: Mr. Taylor, you are not asking me to right now to relieve your attorney and represent yourself, are you?
"[TAYLOR]: I want no attorney. If she will be my attorney, I want no attorney. And, you know, it's like this here. I know she's good. She's hard-headed like me. I don't need no help to get 14 years. I can do that myself."
The court granted the Marsden motion, finding that counsel had "done everything that she is supposed to do," but that there was "a total lack of communication" and that there were "irreconcilable differences" that precluded adequate representation. The court also said that it would continue the trial. The following then occurred:
"[TAYLOR]: I don't want an attorney.
"THE COURT: I will deny your motion.
"[TAYLOR]: No. If you will deny the motion, I rather have her. That's what I am saying.
"THE COURT: You just told me.
"[TAYLOR]: I said if she ain't going to be my attorney, I will go pro per. I need no help.
"THE COURT: You told me.
"[TAYLOR]: I know what I said. If she ain't going to be my attorney, I need no help. I can go pro per myself.
"THE COURT: Mr. Taylor, I will deny your motion to represent yourself --
"[TAYLOR]: You -- no.
"THE COURT: -- on the simple ground from what I heard this morning, you -- what did you call Judge Casserly this morning?
"[TAYLOR]: A racist.
"THE COURT: All right. And in here you don't listen. I try to listen to you, and you interrupt me and stuff.
"I will deny without prejudice to bring[ing] a motion to represent yourself. You can try that again later on, if you want. I will appoint an attorney to represent you, and we'll set a readiness conference in front of Judge Casserly. All right.
"[TAYLOR]: No. That ain't all right.
"THE COURT: That's the law then.
"[TAYLOR]: Why can't I represent myself?
"THE COURT: You can bring that motion in front of Judge Casserly.
"I am denying the motion to represent yourself without prejudice to rebring[sic] it. You need to talk to somebody else that you will have some more confidence in than you have in Ms. Brenner. And you can decide.
"[TAYLOR]: I decided what I want.
"THE COURT: I decided you can't have it at this time. Thank you very much.
"[TAYLOR]: And fuck you too.
"THE COURT: That's one of the reasons that you can't represent yourself."
The court set a readiness conference for July 6 and then said, "As soon as something goes against [Taylor], he starts to swear. Reality of the law business is that it goes against the D.A. and sometimes against the defense. If you start swearing, you can't operate as an attorney."
After several continuances over the course of nearly a year, trial was set to begin on June 6, 2005. Taylor entered his guilty plea that day. More than nine months later, on March 23, 2006, the court denied Taylor's motion to withdraw his guilty plea and sentenced him.
Taylor never renewed his motion to represent himself. On August 5, 2005, Taylor again requested new counsel, claiming that his current attorney was ineffective. The court granted the request.
DISCUSSION
Taylor claims that the court erred by denying his timely and unequivocal motion to represent himself, and that the court failed to make the required inquiries to determine that Taylor's waiver of his right to counsel was knowing and intelligent. He claims that the reasons the court cited for denying the motion; i.e. that Taylor called another judge "racist" and swore at and interrupted the court, did not provide a proper basis for denying the motion. We apply de novo review to Taylor's claims of error. (People v. Dent (2003) 30 Cal.4th 213, 218, 222.)
When a defendant makes an unequivocal request to represent himself within a reasonable time before trial, the trial court must grant the request if it is knowingly and intelligently made. (People v. Stanley (2006) 39 Cal.4th 913, 932; Faretta v. California (1975) 422 U.S. 806, 835-836; People v. Marshall (1997) 15 Cal.4th 1, 20-21.) "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." (People v. Marshall, supra, 15 Cal.4that p. 23.) When the request is not timely, "self-representation no longer is a matter of right but is subject to the trial court's discretion." (People v. Bradford (1997) 15 Cal.4th 1229, 1365.) "In exercising this discretion, the trial court should consider factors such as '"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 such a motion."' [Citations.]" (People v. Jenkins (2000) 22 Cal.4th 900, 959.)
Taylor argues that because the trial court "granted a continuance in connection with the Marsden motion, . . . timeliness was not an issue." We disagree. In view of Taylor's complaints that his counsel had not subpoenaed two witnesses who Taylor wanted her to subpoena, and that his counsel had failed to file several motions Taylor wanted to file, and Taylor's admitted slowness in his ability to process information, granting the motion would clearly have necessitated a delay of the trial. This delay would likely have been appreciably longer than the eight-day delay the granting of the Marsden motion necessitated. Taylor's Faretta motion, made on the day of trial, was untimely. (People v. Clark (1992) 3 Cal.4th 41, 99-100.)
As noted above, the trial in this case was subsequently continued several times. The reasons for the continuances are not entirely clear, although one continuance was apparently due to Taylor's failure to appear, one was apparently due to a Pitchess motion (Pitchess v. Superior Court of Los Angeles County (1974) 11 Cal.3d 531), and one was at the prosecutor's request.
Further, viewed in context, the Faretta motion was equivocal. Taylor's request to represent himself was an impromptu request, made during the second of Taylor's three Marsden motions, just after the court had explained that a Marsden motion was a request for a new attorney. When the trial court granted Taylor's Marsden motion, Taylor said that he would rather keep his current counsel. Taylor's statements to the trial court during this hearing were inconsistent, and his conduct was obstreperous. Taylor's Faretta motion appears to have been just one more example of his admitted propensity to say things out of anger. Taylor seemed to have wanted to keep his current attorney, yet also to decide himself how to try the case. Taylor's comments reflect ambivalence about representing himself and appear to have been made out of anger or frustration.
The trial court patiently tried to ascertain what Taylor wanted and why. The court denied the Faretta motion without prejudice to allow Taylor time to decide what he wanted to do. Taylor never renewed the motion in the many months before he entered his guilty plea. This is a further indication of his ambivalence. Under all of these circumstances, the trial court did not err in denying Taylor's request to represent himself.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, Acting P. J., O'ROURKE, J.