Opinion
F040660.
7-22-2003
THE PEOPLE, Plaintiff and Respondent, v. MARK WILSON, Defendant and Appellant.
James F. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, David A. Rhodes and Netania E. Melamed Moore, Deputy Attorneys General, for Plaintiff and Respondent.
On July 23, 2000, by amended information, Mark Wilson (defendant) was charged with stalking (count 1; Pen. Code, § 646.9, subd. (a) ), terrorist threats (count 2; § 422), and battery (count 3; § 243, subd. (e)(1)). It was further alleged that defendant served a prior prison term within the meaning of section 667.5, subdivision (b). Defendant pled no contest to the three counts and admitted the enhancement. On January 26, 2001, the court stayed a three-year prison term pending successful completion of five years of probation.
All statutory references are to the Penal Code unless otherwise indicated.
Approximately one year later, defendant was charged, by information filed January 28, 2002, with possession of methamphetamine (count 1; Health & Saf. Code, § 11377, subd. (a)) and unauthorized possession of a hypodermic needle or syringe (count 2; Bus. & Prof. Code, § 4140). It was also alleged that defendant had a prior strike conviction pursuant to section 667, subdivisions (b) through (i), and section 1170.12, subdivisions (a) through (d), and served a prior prison term within the meaning of section 667.5, subdivision (b). Defendant pled no contest to count 1 and admitted the enhancements. Defendant also admitted he violated the terms of his probation. The remaining count was dismissed. Defendant was sentenced to a four-year prison term, along with a concurrent four-year term on his prior case. The court again stayed the sentence and granted defendant five years of probation.
Defendant appeals, contending the trial court erred in denying his motion to represent himself. We find no error and affirm the judgment.
DISCUSSION
The underlying facts are not relevant to the issue on appeal. We therefore omit the traditional factual history.
Defendant argues he was denied his constitutional right to self-representation. The People maintain that defendant abandoned any purported request for self-representation and has therefore waived the contention on appeal. We agree with the People.
I. Background facts
The following exchange took place on October 26, 2001, ten months after defendant was sentenced on his original case, in connection with a probation violation hearing:
"THE COURT: All right. On that newest case well enter not guilty plea, set the matter for jury trial Monday, December the 10th, year 2001, that will be 9:00 in the Department of the presiding judge. [P] And [defendant] on the violation of probation do you waive time so that matter can trail behind the new felony?
"THE DEFENDANT: No.
"[DEFENSE COUNSEL]: You want to be sentenced to state prison three years [defendant]?
"THE DEFENDANT: No, I didnt violation of probation.
"THE COURT: Heres the thing, sir, right now you have the right to have a hearing on the violation of probation. What your attorney is recommending is that you waive time on the violation so it can trail behind the new case. The reason being, sir, if you were sentenced on the violation of probation youd become a sentenced prisoner. Youd stop earning time credits on the new case. [P] Hes suggesting you keep both cases together so that youre earning time credits at the exact same rate, youre not admitting anything at this point. Hes protecting you from that at this point.
"THE DEFENDANT: Your Honor could you read this please.
"THE COURT: I read a letter from you.
"THE DEFENDANT: This is, I think this is important, please.
"THE COURT: All right. Sir what is the request? What is the letter requesting for? Let me look.
"[DEFENSE COUNSEL]: No, Your Honor, it has facts about the case before us today.
"THE DEFENDANT: Please.
"THE COURT: Sir, heres the thing. Youve got an attorney. At this point his job is to protect you.
"THE DEFENDANT: Please read this.
"THE COURT: If thats got anything about the new case in it or anything about your
"THE DEFENDANT: No.
"THE COURT: — let me finish sir. Ive got another letter from you, too, sir. You have to understand when you give things to me those [may be] subject to discovery that the People could get them as well. And could use them against you.
"THE DEFENDANT: Im going to fire him. I need — Im going pro per right now.
"THE COURT: Heres the thing. At this point you dont have that option right this second. What you want to do, you want to take a look into that sir. What Im going to do, sir, you can think about that, what I want to do I want to continue this or weve set this matter already, the new case over for trial confirmation on November 29th. Im going to continue the violation until the same date so you keep all your cases together. So you can look at any resources that you want to between now and then. [P] All right. You agree to that?
"THE DEFENDANT: Yeah."
II. Request for self-representation
A criminal defendant has a constitutional right to self-representation at trial, so long as the decision to act as ones own counsel is made competently and intelligently. (Faretta v. California (1975) 422 U.S. 806, 832-835, 45 L. Ed. 2d 562, 95 S. Ct. 2525.) In order to invoke the constitutional right to self-representation, a defendants request must be unequivocal, asserted within a reasonable time prior to commencement of trial, and voluntarily made with knowledge of the risks involved. (People v. Bloom (1989) 48 Cal.3d 1194, 1219, 259 Cal. Rptr. 669, 774 P.2d 698; People v. Windham (1977) 19 Cal.3d 121, 127-128, 137 Cal. Rptr. 8, 560 P.2d 1187.) If the request meets these criteria, a trial court has no discretion to deny it. (People v. Bloom, supra, 48 Cal.3d at p. 1219; People v. Wilks (1978) 21 Cal.3d 460, 467-468, 146 Cal. Rptr. 364, 578 P.2d 1369.)
In this case, defendant stated he was "going to fire" his attorney and was "going pro per right now." In response, the trial judge indicated that he wanted to continue the case and give defendant the opportunity to think about the matter and look at any resources he might want to between now and then. The trial judge specifically asked defendant if he agreed to the proposal, and defendant responded in the affirmative. Defendant never raised the issue again. A defendants conduct may indicate an abandonment or withdrawal of a request for a hearing on a motion for self-representation. (People v. Kenner (1990) 223 Cal. App. 3d 56, 59-62, 272 Cal. Rptr. 551; see also People v. Skaggs (1996) 44 Cal.App.4th 1, 8 [defendants failure to request a ruling on his purported Faretta motion or to raise the issue again and his silent acceptance of defense counsels assistance for the remainder of proceedings constituted a waiver or abandonment of any right of self-representation he arguably asserted].)
On this record, we find defendant abandoned any purported motion for self-representation. "Our view of these facts is simply that [defendant] had second thoughts about the wisdom of representing himself and abandoned the idea." (People v. Kenner, supra, 223 Cal. App. 3d at p. 62.) Moreover, even assuming defendant did not abandon his motion, we nonetheless find he failed to make an unequivocal request. (See People v. Scott (2001) 91 Cal.App.4th 1197, 1205 [Faretta motion made only to rid oneself of appointed counsel is not unequivocal request for self-representation].)
DISPOSITION
The judgment is affirmed.