P. v. MacDonald

Filed 6/20/06 P. v. MacDonald CA4/1

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California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Jan Goldsmith, John M. Thompson and Herbert J. Exharos, Judges. Affirmed.

In superior court case No. SCD166075, on May 10, 2002, James M. MacDonald entered a negotiated guilty plea to selling/transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), admitted a prior strike (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, 668),^[1] and serving a prior prison term (§§ 667.5, subd. (b), 668). On June 12, the court struck the prior strike, suspended imposition of sentence, and placed him on three years' probation, including conditions he serve 365 days in custody and violate no laws. On July 21, 2004, MacDonald was arraigned in case No. SCE242019, on the charge he unlawfully entered jail grounds. The court appointed the public defender to represent him. On August 4, the court held MacDonald to answer after holding a preliminary hearing in case No. SCE242019, and formally revoked probation in case No. SCD166075. On August 23, the court denied a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118) in case No. SCE242019 and authorized MacDonald to proceed in propria persona. After the court denied motions for a continuance on September 20 and September 27, and ultimately reappointed the public defender to represent MacDonald, on October 26 he entered a negotiated guilty plea in case no. SCE242019 to unlawfully entering Las Colinas Jail grounds while he was an ex-felon (§ 4571), and admitted a prior strike. The court denied a motion to strike the prior strike in Case No. SCE242019 and sentence him in case No. SCE242019 to prison for 32 months: double the 16-month lower term. It imposed a concurrent two-year lower term in case No. SCD166075. The court struck the prior prison term enhancement in each case. The court issued a certificate of probable cause. (Cal. Rules of Court, rule 30(b).)

DISCUSSION

Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues: (1) whether the trial court properly revoked probation in case No. SCD166075; (2) whether the trial court properly denied MacDonald's request for substitute counsel; (3) whether the trial court coerced MacDonald into relinquishing his right to represent himself; (4) whether the record affirmatively reflects that MacDonald's guilty pleas were voluntary and intelligent; and (5) whether the trial court abused its discretion in refusing to strike the prior strike.^[2]

We granted MacDonald permission to file a brief on his own behalf. He has not responded.

We requested additional briefing on the issue of whether MacDonald's rights under Faretta v. California (1975) 422 U.S. 806 were violated. We asked this question because it appeared that the trial court was abrupt and possibly arbitrary in denying the request for a continuance shortly before MacDonald requested termination of the right to represent himself. Having reviewed the record carefully, we conclude the court did not violate Faretta v. California.

On August 23, 2004, when the court authorized MacDonald to proceed in propria persona, it told him that the trial was presently set for September 20, but if he wanted to continue it, "I will give you a trial date of October 25." On September 7, in a sealed hearing, MacDonald told the court he needed 60 days in a law library to research whether Los Colinas Jail is run by the Department of Corrections, he had not received discovery, and because he was facing 32 months in prison. MacDonald also told the court he wanted to file a motion for a change of venue. The court deferred ruling on the motion for a continuance and the People provided MacDonald with discovery. MacDonald decided not to file the motion for a change of venue. At the readiness conference on September 14, MacDonald told the court he needed a continuance of trial because he had not received discovery until seven days earlier. The court deferred a ruling on the request until the date set for trial, September 20, and advised MacDonald that the request had to be in writing. When the case was called for trial on September 20, MacDonald told the court he was not ready to proceed because his investigator had not found witnesses. He told the court he had not subpoenaed witnesses because he thought the matter would settle before trial. After the court trailed trial until the following Monday, MacDonald told the court he had only had discovery for nine days. The court told him the case appeared simple and denied the motion for a continuance. MacDonald told the court there was an additional reason he wanted the continuance, so he could look for a paid attorney. On September 27, the court trailed trial until September 30 after the People agreed they were looking into information MacDonald provided, but they thought trial would proceed on September 30. MacDonald told the court he would be ready and rejected an offer for appointment of substitute counsel. On September 30, the court appointed the public defender to represent MacDonald for the limited purpose of plea negotiations. MacDonald told the court he was considering entering a guilty plea but needed a two-week continuance to talk with his family because it was a "major decision." The court told the parties it was referring the case to department 11 to rule on the motion. MacDonald responded that he no longer wanted to represent himself. The court told MacDonald that his request for appointment of counsel together with the request for a continuance would be decided by the presiding judge. After MacDonald appeared before the presiding judge, who denied a continuance and denied appointment of counsel as untimely, MacDonald returned to the trial court. When the court began to consider motions in limine, MacDonald said he could not continue without an attorney. He told the court, "I know what I have to do, but, I don't know -- I know where I want to go, but I don't know how to get there. So I do not have the expertise to defend myself properly." The court appointed the public defender to represent MacDonald. The court considered a continuance of the matter and the parties discussed scheduling difficulties. Ultimately, MacDonald waived time and the court scheduled trial to begin on October 28. On October 26, MacDonald told the court, "I should have stuck with her [the appointed public defender], and going pro per was -- it helped a little bit, gave me the feeling I was doing something for myself, but, actually, I went around in a circle." MacDonald entered the negotiated guilty plea.

While arguing the trial court denied him the right to represent himself through denial of his requests for a continuance, Macdonald acknowledges that, "determination whether to grant or deny a request for a continuance is normally entrusted to the sound discretion of the trial court." (See People v. Michaels (2002) 28 Cal.4th486, 525.) He argues the trial court here abused its discretion in denying his requests for a continuance because of the difficulties he was having representing himself as a defendant in custody. In People v. Lopez (1977) 71 Cal.App.3d 568, the reviewing court said, "self representation is almost always unwise and that [a defendant ] may conduct a defense 'ultimately to his own detriment.' " (Id. at p. 572, quoting Faretta v. California, supra, 422 U.S. at p. 834.) "That he is entitled to and will receive no special indulgences by the court . . . . It should be made crystal clear that the same rules that govern an attorney will govern, control and restrict him -- and that he will get no help from the judge. He will have to abide by the same rules that it took years for a lawyer to learn." (Lopez, supra, 71 Cal.App.3 at pp. 572-574.) We believe that when faced with the difficulty of proceeding in propria persona, MacDonald ultimately requested reappointment of counsel to represent him. As we noted, ante, careful review of the record reveals that MacDonald was not denied his right to represent himself as expressed in Faretta v. California. He was not coerced into waiving the right to represent himself through denial of his request for a continuance but chose to have counsel reappointed because he realized that he did not have the expertise to represent himself.

A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented MacDonald on this appeal.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

McDONALD, J.

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^[1] All further statutory references are to the Penal Code.

^[2] Because MacDonald entered guilty pleas, he cannot challenge the facts underlying the convictions. (§ 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts.