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People v. West

Court of Appeals of California, Second Appellate District, Division Three.
Nov 20, 2003
No. B163482 (Cal. Ct. App. Nov. 20, 2003)

Opinion

B163482.

11-20-2003

THE PEOPLE, Plaintiff and Respondent, v. CHASE WEST, Defendant and Appellant.

David R. Garcia, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, and Timothy M. Weiner, Deputy Attorney General, for Plaintiff and Respondent.


Chase West appeals from the judgment entered following his conviction by jury of attempted second degree robbery (Pen. Code, §§ 211, 664) with an admission that he suffered a prior felony conviction for which he served a separate prison term (Pen. Code, § 667.5, subd. (b)). He was sentenced to prison for four years.

In this case, we hold the trial court properly denied appellants motion to represent himself.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on April 29, 2002, appellant committed the above offense on Fifth and Main. A Los Angeles police officer, driving by, saw appellant attacking the victim. The officer stopped, appellant tried to leave, but he was immediately arrested. The victim and officer identified appellant as the assailant. Appellant presented no defense evidence.

CONTENTION

Appellant contends "[t]he trial court abused its discretion by denying appellants Faretta motion to represent himself at trial."

DISCUSSION

The Denial Of Appellants Motion To Represent Himself Was Proper.

1. Pertinent Facts.

The record reflects appellant was represented by counsel from May 13, 2002, to July 22, 2002, inclusive. During this period the following occurred: appellants May 13, 2002 preliminary hearing, his May 28, 2002 arraignment in superior court, and a June 24, 2002 pretrial and trial setting conference. On June 24, 2002, the case was scheduled for jury trial on July 22, 2002 as "day 55 of 60."

Appellant remained in custody from May 13, 2002, to July 22, 2002, inclusive.

On July 22, 2002, the court in Department 116 called the case. Appellants counsel, a public defender, represented that he believed appellant had a motion. Appellant personally told the court that "there been" a conflict of interest between appellant and counsel, and appellants family was trying to retain an attorney for appellant. The court inquired if appellant was asking for a short continuance to see if his family could retain counsel for appellant. Appellant replied in the affirmative.

The court asked if there was anything else appellant wanted to say. Appellant indicated he wanted a named attorney. The court asked why it would want to get another attorney involved if appellant was trying to retain private counsel. Appellants response was inaudible. The court observed that appellant was indicating he wanted to retain private counsel or obtain another public defender as substitute counsel. Appellant confirmed that the named attorney was a public defender. The court asked appellants counsel if appellant wished to be heard further on "a request for change in attorneys[]" and appellants counsel submitted the matter.

The court indicated it could not select the public defender who represented appellant. Appellant acknowledged he understood. The court asked if appellants family was trying to retain counsel for appellant. Appellant replied, "Yeah, I am trying to work on getting an attorney." The court asked what steps appellant had taken. Appellant replied ". . . I got a phone number and, . . . my girlfriend flying in from Japan toward the end of the month, end of August, trying to get some money together for a private counsel."

The court commented that "it seems the attempts to get an attorney are a bit tenuous at this point, iffy, . . ." The court indicated that if appellant were able to retain counsel who came to court and moved to substitute in as counsel, that would "be up to [appellant][,]" but "[i]n the meantime, we are 55 of 60 today." The court asked appellant what he wanted, and appellants counsel indicated he would not oppose a continuance, noting appellant had cast doubt on appellants counsels interest in representing appellant.

The prosecutor represented that the victim was available for the rest of the week but, after that, he was going on a five-week vacation. The prosecutor represented that if a "four-week [sic] continuance" occurred, "we would be all right because the victim would be back, or if we tried the case this week, wed be all right."

The court asked appellants counsel if he were ready for trial. Appellants counsel replied in the affirmative. Appellants counsel suggested that the relationship between himself and appellant was an issue "that might change favorably by the next court date." The court observed that it would schedule the matter for July 25, 2002, in Department 100. The court indicated it was improbable that appellant would retain counsel. The court observed, "His girlfriends coming from Japan. They are trying to get some money together. They dont have an attorney in mind."

Appellant later indicated he did not want "to go to speedy trial," he was willing to waive his right to a speedy trial, and he wanted to retain private counsel. The court observed that the present offense was committed on April 29, 2002. The court also observed that "we are closing in on July 29th , . . . Thats been three months. And on the eve of trial, . . . now youre getting a private lawyer." The court ordered the matter transferred to Department 100. The parties agreed it would take about three days to try the case.

Appellant personally stated he did not understand why he was not being given time to retain an attorney. The court replied that the People had a witness who was leaving town, and appellants counsel was ready for trial. Appellant stated he did not want his present counsel to represent him any more, and that appellant wanted to fire him.

The court conducted a Marsden hearing and asked appellant what he wished to tell the court. Appellant replied, "In the first place, . . . I dont want to start trial tomorrow." The court replied it was trying only to determine if there was a problem with appellants counsels representation of appellant. Appellant replied, "Yeah. I have decided that I am not representing myself. I am going to hire a private attorney." The court asked if there was anything more, and appellant replied, "I know [appellants counsel is] not representing me any more. I dont believe he has my best interests at heart."

People v. Marsden (1970) 2 Cal.3d 118.

The court asked why, and appellant replied he had been "in discipline" about two months and just recently "came off from discipline." Appellant stated he had been in contact with his family and they decided that "we are going to hire a private attorney by end of July or first week of August." Appellant had asked appellants counsel to send appellant "the whole case and the case work, everything[,]" but appellants counsel had not complied. Appellants counsel had not come to jail to see appellant. Appellant did not want to put his life in appellants counsels hands. Appellant stated, "if I am convicted, I am the one thats going to do the time. So Id rather do pro per or get a private attorney."

The court later told appellants counsel that appellant was raising Marsden issues and asked if appellants counsel wanted to respond. Appellants counsel replied that he had subpoenaed the manual data transmissions (MDT) of the Los Angeles police cars in question. He took the information concerning those police cars and made numerous telephone calls to the Los Angeles Police Department, "trying to follow up and determine if they were in the same place as indicated." Appellants counsel had reviewed the preliminary hearing transcript and had prepared questions for the officers based on inconsistencies between the transcript and MDTs. Appellants counsel had just returned from a two-week vacation and had not seen appellant in jail. However, appellants counsel was ready for trial, and he urged that appellant was innocent. The court denied the Marsden motion, noting that appellants counsels representation of appellant was "more than adequate."

Appellant then stated, "I dont think its adequate because I want to represent myself. I have a constitutional right to do that." The court noted that it was "three days before trial," but appellant stated, "The trial can be waived." The court ruled that appellants request for self-representation was not timely and the request was denied. The court ordered the matter transferred to "Department 100, . . . for jury trial[]" on July 25, 2002. Ultimately, on September 17, 2002, the case was called for jury trial, and a jury was sworn.

The July 22, 2002 minute order reflects, "Out of the presence of the deputy district attorney: Defense motions for pro per status is heard and denied as untimely; Marsden motion is heard and denied . . . ."

Appellant later complained that he had not seen appellants counsel since the last time appellant was in court, there had been no communication between appellant and appellants counsel, and appellant had not been allowed to make phone calls. Appellant indicated he wanted to represent himself, he did not want a speedy trial, and he "did law two years NYU."
On July 25, 2002, in Department 100, the case was transferred to Department 116 for a hearing on a continuance motion. After the transfer, the motion was granted and the case was continued to September 5, 2002. On that date, both parties announced ready and the matter was ordered transferred to Department 100 for jury trial on September 13, 2002. On September 13, 2002, the case was called for trial in Department 100 and ultimately transferred to Department 124 for jury trial. On September 13, 2002, the matter was trailed in Department 124 to September 17, 2002, as "day 10 of 10." On September 17, 2002, the case was called for jury trial in Department 124, and a jury was sworn.

2. Analysis.

Appellant claims the trial court erroneously denied his July 22, 2002 request to represent himself. We disagree. Appellant made his request on July 22, 2002, the originally scheduled trial date. On that date, the parties counsel indicated they were ready for trial. Appellant did not, at the time of his request, announce that he was personally ready for trial. Indeed, during his Marsden motion, he stated, ". . . I dont want to start trial tomorrow." Appellant also had indicated his interest in obtaining "the whole case and the case work, everything." The trial court reasonably could have concluded that granting appellants request would have necessitated a continuance. Accordingly, the request for self-representation was untimely and, contrary to appellants suggestion that it was constitutionally-based, it was simply addressed to the wide discretion of the court. (Cf. People v. Clark (1992) 3 Cal.4th 41, 99-100; People v. Windham (1997) 19 Cal.3d 121, 128, fn. 5.)

Moreover, in light of the five factors required to be considered in the exercise of that discretion (People v. Windham, supra, 19 Cal.3d at p. 128), the courts denial of the request for self-representation was proper. First, the record prior to the request reflects that appointed counsel was providing effective representation, and appointed counsel was ready for trial on July 22, 2002. (People v. Clark, supra, 3 Cal.4th at p. 100.) Second, appellant demonstrated his proclivity to substitute counsel by his previous baseless Marsden motion, which was denied. (Ibid.) Third, appellant wanted to represent himself only if the court would not substitute counsel, that is, appellant was playing the "Faretta game." (People v. Williams (1990) 220 Cal.App.3d 1165, 1170; see People v. Clark, supra, 3 Cal.4th at p. 100.)

Fourth, as to the length and stage of the proceedings, despite repeated continuances, appellant waited until the originally scheduled trial date of July 22, 2002, to request self-representation. Fifth, substantial delay would have followed the granting of appellants request, since appellant had indicated he did not want to "start trial tomorrow[]" and wanted to obtain "the whole case and the case work, everything."

We conclude the court did not abuse its discretion by denying appellants request for self-representation. (Cf. People v. Marshall (1997) 15 Cal.4th 1, 20-27; People v. Clark, supra, 3 Cal.4th at pp. 99-100; People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5; People v. Perez (1992) 4 Cal.App.4th 893, 903; see People v. Burton (1989) 48 Cal.3d 843, 853-854; People v. Moore (1988) 47 Cal.3d 63, 80.) Finally, in light of the strength of the evidence of appellants guilt, any error in denying appellants untimely motion to represent himself was not prejudicial. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836; People v. Nicholson (1994) 24 Cal.App.4th 584, 594.)

DISPOSITION

The judgment is affirmed.

We concur: KITCHING, J. ALDRICH, J.


Summaries of

People v. West

Court of Appeals of California, Second Appellate District, Division Three.
Nov 20, 2003
No. B163482 (Cal. Ct. App. Nov. 20, 2003)
Case details for

People v. West

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CHASE WEST, Defendant and…

Court:Court of Appeals of California, Second Appellate District, Division Three.

Date published: Nov 20, 2003

Citations

No. B163482 (Cal. Ct. App. Nov. 20, 2003)