P. v. Penarojas

Filed 7/24/07 P. v. Penarojas CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Mark S. Arnold, Judge. Affirmed.

Catherine Campbell, under appointment by the Court of Appeal for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________

Defendant Smith DeJesus Penarojas appeals his conviction on one count of second degree robbery (Pen. Code,  211) with a true finding he personally used a firearm (Pen. Code,  12022.53, subd. (b).) On appeal he contends that the trial court erred in failing to order a competency evaluation pursuant to Penal Code sections 1368 and 1369;[1] in finding he was not incompetent based upon ex parte statements; in putting him in a stealth belt without cause, which forced defendant to absent himself from the courtroom; and in denying his motion to represent himself and failing to continue the matter to accommodate his request. Defendant further contends his counsel was ineffective for failing to object to the ex parte statements. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On September 3, 2005, at approximately 2:45 a.m., Nicholas Casillas was near Yukon Avenue and 196th Street in Torrance walking home from work. He saw defendant, who was wearing black jeans, a white T-shirt and black jacket, walking the other way on the opposite side of the street. Defendant, who was carrying a red toolbox, shouted, Excuse me. Casillas crossed the street to see if he could help defendant. Defendant told Casillas his car was broken. Casillas lent defendant his cell phone so he could call a tow truck. Defendant said no one was answering and handed the phone back. Casillas gave defendant 45 cents so he could use the pay phone at the 7-Eleven down the street. Defendant pulled out a gun from the left side of his coat and pointed it at Casillas, saying give me everything you got. Casillas emptied his pockets and threw everything on the sidewalk. Defendant picked up his wallet and began to go through it, and asked for credit cards. After he was through looking through Casillass wallet, defendant let him go. Casillas picked up his belongings, left, and when he got home called 911 and gave a description of defendant. Police came to his home, and he described defendant to them. Casillas identified defendant shortly afterwards at a field showup, and identified him again in court.

Officer Marc Sandoval of the Torrance police received a radio call at approximately 3:30 a.m. on September 3, 2005, that a robbery had taken place. As he and his partner drove to the location of the robbery, they noticed a car on the east side of Yukon about one-quarter mile from the robbery scene with its lights on. They saw that the driver fit the description of the perpetrator of the robbery, followed the car, and conducted a traffic stop. In searching defendants car, they found a red toolbox and a hand gun in the trunk of the car. The gun was later identified as a semi-automatic assault weapon.

Rudilania Ruiz testified for the defense that defendant is her boyfriend and the father of her baby. Defendant had never been violent to her, nor had she seen him steal. They were not having financial problems, and were able to pay their bills. At the time of the robbery, defendant was employed at Superior Supermarket.

The jury found defendant guilty of second degree robbery and found true the personal use of a firearm allegation.[2] The trial court sentenced defendant to the low term of two years, plus a consecutive 10-year enhancement for the firearm use pursuant to section 12022.53, subdivision (b).

DISCUSSION

I. ARGUMENTS RELATING TO DEFENDANTS COMPETENCE.

Defendant argues the trial court erred in failing to order a competency hearing pursuant to sections 1368.1 and 1369, and in basing its factual findings on ex parte communications; he also asserts that counsel was ineffective for failing to object to the courts use of ex parte statements.

A. Factual Background.

On Monday, December 19, 2005, as the case was called for trial, the trial court asked defendant for his name. Defendant could not remember his middle name. Defense counsel advised the court that she had had the case since September 21 and defendant had previously been communicating with her about the case without any problem. Earlier today he indicated that he didnt know why he was here. Initially I did not declare a doubt. I wanted to be sure whether he wasnt malingering to delay trial proceedings or not. [] When we did get sent to this court, his behavior dramatically changed, [he was] talking to cell walls or doors; he began to say demons are after him and his son; that hes going to kill him and his son. Counsel advised the court this behavior had never occurred before, and she did not believe defendant had previously received psychiatric treatment. The court requested defense counsel to inquire at the jail to see if defendant had displayed unusual conduct.

After a recess, defense counsel advised the court she was informed that defendant had been housed in the general population and not been admitted to the mental health ward. Counsel was unable to reach either the supervising deputies who had direct contact with defendant or defendants girlfriend. Counsel had spoken to defendant while in custody and he did not know why he was at the courthouse, and did not seem to be familiar with the facts of the case or the police report. He seems to be virtually unable to assist me with the case at this point. . . . He keeps indicating the demons are going to kill him and his son. [] At this point, he cant help me with this case.

The trial court stated it had spoken with the judge who had engaged in a lengthy discussion with defendant four days earlier at the readiness conference. Defense counsel advised that defendant had been feeling poorly since that time. The court stated, Well, its my experience that mental illness incompetency does not come on like a headache or like one gets a cold. Its long-standing and its usually a result of some significant trauma or long-lasting mental illness. I do not have a doubt as to your clients competence. I think hes malingering. The trial court refused to suspend the proceedings, finding that there was no reason to believe defendant was incompetent or unable to understand the proceedings, in light of the fact that today is the first day that you or, for that matter, anyone else that we know about has observed any of these symptoms.

Outside the presence of both defendant and the jury, the court indicated that it was concerned defendant would engage in some conduct that might upset the trial, and therefore, for security purposes, it was going to put a stealth belt on the defendant. While the belt would not be visible, it would impede defendants movement. Defense counsel did not oppose the use of the stealth belt at that time.

Defense counsel advised the court that the prosecution had agreed to a court trial with a 15-year lid, and that she had tried to communicate this offer to defendant, but was unable to do so. Counsel again expressed concern with defendants ability to assist her with the case. The court indicated that because there was no evidence of physical injury to defendant, nor a history of psychiatric problems, it would not entertain a doubt.

Counsel for the defense then declared doubt as to defendants mental competency pursuant to section 1368, subdivision (b). After hearing argument, the court declared no doubt.

After satisfying itself that defendant was wearing the stealth belt and that it was not visible to the jury, the court inquired whether there were civilian clothes available to defendant. Defendant indicated he wished to wear civilian clothes and asked the court to call his mother for him. After jury selection, defendant told the court that he wanted to kill himself, and that he would do so if anything happened to his son. The demons were telling him that something might happen to his son.

That afternoon, Deputy Rojasadvised the court that when defendant was in lockup on Monday December 19, defendant was sitting among the other inmates and interacting, talking and laughing. The Deputy could not hear what was being said, and it appeared defendant was participating in the conversation.

After the conclusion of the presentation of evidence, defendant refused to come into court and remained in lockup. Defense counsel advised the court she had attempted to speak to defendant, but that he had his fingers in his ears and was not responding. The court went into lockup and held proceedings. Defendant had his hands in his ears. The court found defendant was willfully absenting himself from court.

Back in the courtroom, defense counsel requested that the proceedings not continue in defendants absence. The court advised counsel that it would instruct the jury not to consider his absence for any purpose. Im not going to keep this jury in limbo until such time as your client decides to take his fingers out of his ears and come into courtroom and proceed. [] This is just further evidence to me that he is procrastinating and hes malingering. . . . [H]es just being uncooperative and hes been uncooperative ever since the start of the trial, while hes been feigning his mental impairment. The court made a finding that defendant was offered the opportunity to be present, and that he was voluntarily absenting himself from the courtroom.

Later in the proceedings, defense counsel requested another opportunity to see if she could talk defendant out of lockup. Defendant refused to talk to her. The court instructed the jury on defendants absence.

After the jury indicated it had reached a verdict, counsel spoke to defendant, who told her he did not want to be present in court for the verdict but wanted to go back to jail. The court found defendant had voluntarily absented himself from court.

At the sentencing hearing, defense counsel indicated that she had defendant evaluated by a doctor, who concluded that during trial defendant was depressed and had a breakdown, but was now competent.

B. The Trial Court Did Not Abuse its Discretion In Refusing to Conduct a Competency Hearing.

Defendant contends the trial court violated his due process rights by failing to conduct a competency hearing pursuant to section 1368.1 and 1369. Although he admits he had no prior documented history of psychiatric illness, his counsel at trial repeatedly advised the court of her inability to communicate with him and defendants inability to participate in his own defense. Here, after being told he faced a sentence of 22 years, defendant suffered a mental breakdown and was thereafter unable to communicate with counsel. This, he contends, was sufficient to trigger the trial courts obligation to hold a competency hearing. We disagree.

Consistent with the due process clause of the Fourteenth Amendment, the state may not try or convict a mentally incompetent defendant. (Godinez v. Moran (1993) 509 U.S. 389, 396; Pate v. Robinson (1966) 383 U.S. 375, 378; People v. Ramos (2004) 34 Cal.4th 494, 507.) A defendant who is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner is incompetent to stand trial. ( 1367.) The burden is on the defendant to establish he or she is not competent to stand trial. ( 1369, subd. (f); People v. Marshall (1997) 15 Cal.4th 1, 31.)

If during the proceedings, a doubt arises in the mind of the judge concerning the defendants competence, the judge shall so state in the record and inquire of defense counsel whether in counsels opinion the defendant is competent. ( 1368, subd. (a); People v. Ramos, supra, 34 Cal.4th at p. 507.) Further, the trial court is required to conduct a competency hearing pursuant to section 1368 where the defendant has introduced substantial evidence of his or her incompetence. (People v. Frye (1998) 18 Cal.4th 894, 951.) Substantial evidence is evidence that raises a reasonable doubt about the defendants competence to stand trial. (Id. at p. 952.) In determining whether substantial evidence of incompetence exists, the trial court must consider all of the relevant circumstances. (People v. Howard (1992) 1 Cal.4th 1132, 1164.) [T]he inexactness and uncertainty that characterize competency proceedings may make it difficult to determine whether a defendant is incompetent or malingering. (Cooper v. Oklahoma (1996) 517 U.S. 348, 365.) However, more is required to raise a doubt than mere bizarre actions [citation] or bizarre statements [citation] or statements of defense counsel that defendant is incapable of cooperating in his [or her] defense [citation] or psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendants ability to assist in his own defense [citation]. (People v. Laudermilk (1967) 67 Cal.2d 272, 285.)

We give the trial judges ruling whether a competency hearing is required great deference. (People v. Ramos, supra, 34 Cal.4th at p. 507.) An appellate court is in no position to appraise a defendants conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper. (People v. Merkouris (1959) 52 Cal.2d 672, 679.)

In People v. Koontz (2002) 27 Cal.4th 1041 (Koontz), the defendant discharged appointed counsel and represented himself. Prior to trial, defendant fired several investigators because he contended he was unable to interact with them in a rational manner. At trial, defendant rambled incoherently and presented an irrational defense based on a non-existent knife. Koontz rejected defendants contention of incompetence because the record simply does not show that he lacked an understanding of the nature of the proceedings or the ability to assist in his defense. (Id. at p. 1064.)

Here, the trial court did not err in refusing to order a competency hearing. The record does not establish that defendant was incapable of understanding the proceedings; rather, the trial court was within its discretion in concluding that defendant was refusing to participate in a meaningful fashion. The trial court had the opportunity to observe defendants demeanor first-hand, and on that basis concluded that defendants conduct, which came on suddenly and without explanation and which appeared to vanish outside the courtroom, amounted to no more than bizarre statements and behavior designed to delay the proceedings.

C. There Was No Error in The Trial Courts Reliance on Ex Parte Statements and Counsel Was Not Ineffective for Failure to Object.

Defendant contends the trial court erred in relying on unsworn, ex parte statements from Deputy Rojas concerning defendants behavior in lockup that was incompetent and inadmissible. He contends the trial court may not, consistent with due process, base its decision on information not disclosed to parties, and may not act as a witness against the defendant. Defendant further contends that counsels failure to object to these statements constituted ineffective assistance of counsel because reasonably competent counsel would not have opened the door to consideration of ex parte communications, counsel had no strategic purpose in doing so, and defendant was prejudiced by the trial courts wrongful consideration of the statements. We do not agree.

1. Factual Background.

At the December 21, 2005 hearing, defense counsel was present when the trial court advised that it had learned that defendant was exhibiting conduct inconsistent with his behavior in front of counsel. The court stated such conduct appeared to substantiate its belief that defendant was malingering. The court questioned Deputy Rojas concerning the deputys observations of defendants conversation with other inmates, and the deputy advised the court that although the deputy could not hear what defendant said, he was talking and laughing with the other inmates.

The trial court gave defense counsel an opportunity to question Deputy Rojas concerning his observations. Counsel asked several questions, and then advised the court that defendant was still claiming his sons life was in danger. Counsel argued that [b]ecause the deputy didnt really hear the substance of the conversation, its hard for me to conclude that [defendant] was actually coherent and knowing what he was saying, what was actually going on. He could have been saying something crazy. . . . Maybe the inmates responded to that by laughing. . . . [] But based on his behavior with me, hes just been completely unable to help me with the case as [long] as Ive been in this trial.

2. The Trial Courts Consideration of Deputy Rojass Statements To Evaluate Defendants Competency Was Not Prejudicial.

Evidence Code section 710 provides: Every witness before testifying shall take an oath or make an affirmation or declaration in the form provided by law. Testimony given without taking an oath or affirmation, or promising to tell the truth, is not evidence within the meaning of Evidence Code 140.[3] (In re Heather H. (1988) 200 Cal.App.3d 91, 95; see also In re Zeth S. (2003) 31 Cal.4th 396, 414, fn.11.) The deputys statements were not evidence.

However, the trial courts consideration of the deputys unsworn statements did not prejudice defendant. As the courts comments indicate, the trial court had reached its conclusion defendant was malingering before Deputy Rojass observations were brought to its attention, and the deputys observations did no more than substantiate the courts opinion. Thus, the exclusion of the deputys statements would not likely have changed the courts conclusion. (People v. Watson (1956) 46 Cal.2d 818, 836.)

3. Counsel Was Not Ineffective for Failing to Object to Deputy Rojass Statements.

The right to effective assistance of counsel derives from the Sixth Amendment right to assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686-694; see also Cal. Const., art. I, 15.) To obtain a reversal of his conviction based upon ineffective assistance of counsel, defendant must show (1) counsels conduct was deficient when measured against the standards of a reasonably competent attorney, and (2) prejudice resulting from counsels performance so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (People v. Mayfield (1997) 14 Cal.4th 668, 784 [quoting Strickland v. Washington].) Prejudice is shown where there is a reasonable probability, but for counsels errors, that the result of the proceeding would have been different. (In re Harris (1993) 5 Cal.4th 813, 832-833.)

Our review of counsels performance is deferential, and strategic choices made after a thorough investigation of the law and facts are virtually unchallengeable. (In re Cudjo (1999) 20 Cal.4th 673, 692; People v. Shoals (1992) 8 Cal.App.4th 475, 501 [ineffective assistance occurs only when counsels acts cannot be explained on the basis of any knowledgeable choice of tactics].) We defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel, and there is a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. Where counsels trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsels acts or omissions. (People v. Jones (2003) 29 Cal.4th 1229, 1254.) In some cases, however, the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal. (People v. Pope (1979) 23 Cal.3d 412, 426, fn. omitted; disapproved on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) The failure to object rarely constitutes constitutionally ineffective assistance of counsel. (People v. Huggins (2006) 38 Cal.4th 175, 252.)

Here, we find no record demonstrating inadequate assistance or prejudice. Counsel was relentless in her efforts concerning defendants incompetence, bringing the matter to the courts attention at every opportunity where it was warranted. Her conduct with respect to Deputy Rojass statements, including her questioning of him, indicates she was trying to flesh out the issue further in defendants favor and likely viewed objection as inappropriate. This approach constituted a reasonable tactical decision. Finally, even assuming it was ineffective assistance for her to fail to object, no prejudice resulted because, as discussed above, exclusion of the statements would not likely have changed the result of the trial courts ruling on defendants entitlement to a competence hearing.

II. THE USE OF A STEALTH BELT DID NOT PREJUDICE DEFENDANT, NOR DID THE COURT ERR IN CONCLUDING DEFENDANTS ABSENCE FROM THE COURTROOM WAS VOLUNTARY.

Defendant contends that the facts weighed against the use of a stealth belt because he had not disrupted the courtroom, threatened violence, or shouted or engaged in angry outbursts; furthermore, the trial court never explained its reasons for having him shackled. Defendant also argues that the use of the restraints caused him to absent himself from the courtroom, and may have been the reason he did not choose to testify.

A. Factual Background.

The record indicates that the court ordered the belt during the first days proceedings, after the issue of defendants competency was raised. The record does not disclose any evidence of disruption, or physical action by defendant. At the end of the first days proceedings, defense counsel asked the court to reconsider the use of the stealth belt. The court reiterated its concern that the defendant might engage in conduct to upset the trial, and declined to order its removal. Counsel renewed the request the following morning; counsel continued to express concern about defendants competency and inability to assist her with his case. The trial court reiterated that it believed defendant was malingering.

On Thursday December 22, 2005, the bailiff was attempting to attach the stealth belt to defendant, who was not cooperating. Counsel for defendant reminded the court that she had asked whether the court would reconsider the restraints. The court refused because defendant was not cooperating. The court directed that defendant either wear the belt or be removed from the courtroom. The court stated, Regarding the courts order that the [stealth belt] link be placed, the link be connected, the court finds there is a manifest need, in light of the defendants bizarre behavior, which the court feels is malingering because he wants to avoid any progress of the trial. At that point, defendant began to cooperate.

B. The Imposition of Restraints Did Not Prejudice Defendant.

While in court, the defendant may not be physically restrained absent a showing of manifest need for such restraints.[4] (People v. Duran (1976) 16 Cal.3d 282, 290-291 (Duran).) The courts have always recognized that unnecessary show of restraint of an accused in the presence of jurors is prejudicial. Ordinarily, the defendant should not be manacled or unduly restrained. (People v. Burnett (1967) 251 Cal.App.2d 651, 655.) When a defendant is charged with any crime, and particularly if he is accused of a violent crime, his appearance before the jury in shackles is likely to lead the jurors to infer that he is a violent person disposed to commit crimes of the type alleged. (Duran, supra, 16 Cal.3d at p. 290.) Further, the use of restraints is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold. (Illinois v. Allen (1970) 397 U.S. 337, 344.)

Duran established the rule that [i]n the interest of minimizing the likelihood of courtroom violence or other disruption the trial court is vested, upon a proper showing, with discretion to order the physical restraint most suitable for a particular defendant in view of the attendant circumstances. The showing of nonconforming behavior in support of the courts determination to impose physical restraints must appear as a matter of record and, except where the defendant engages in threatening or violent conduct in the presence of the jurors, must otherwise be made out of the jurys presence. The imposition of physical restraints in the absence of a record showing of violence or a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion. (Duran, supra, 16 Cal.3d at p. 291.) Where, as here, there is no record of violence, threat of violence, or other conduct sufficient to establish good cause, the use of the restraints was an abuse of discretion. (Solomon v. Superior Court (1981) 122 Cal.App.3d 532, 536.)

Ultimately, however, the decision to shackle the defendant is subject to harmless error analysis. (People v. Combs (2004) 34 Cal.4th 821, 838.) [W]e have consistently held that courtroom shackling, even if error, was harmless if there is no evidence that the jury saw the restraints, or that the shackles impaired or prejudiced the defendants right to testify or participate in his defense. (People v. Anderson (2001) 25 Cal.4th 543, 596.)

There is no evidence in the record that the jury saw the restraints or that they prejudiced defendants right to testify; speculation by counsel as to what defendant might have done is insufficient. Nor as discussed below, does the record show that the belt interfered with defendants right to participate in his defense. Accordingly, the error was harmless.

C. Absence from Trial.

Defendant contends that his absence from trial, which stretched from the moment the prosecution and defense rested until the jury returned its verdict, prejudiced him because he was unable to confer with his attorney, assist with her closing argument, involve himself with jury instruction issues, and be present when the jury returned its verdict.

Broadly stated, a criminal defendant has a right to be personally present at certain pretrial proceedings and at trial under various provisions of law, including the confrontation clause of the Sixth Amendment to the United States Constitution, the due process clause of the Fourteenth Amendment to the United States Constitution, section 15 of article I of the California Constitution, and sections 977 and 1043.[5] (People v. Cole (2004) 33 Cal.4th 1158, 1230; see also  1043, subd. (a).) This requirement extends to any stage of the criminal proceedings that is critical to its outcome if the defendants presence would contribute to the fairness of the procedure. (People v. Bradford (1997) 15 Cal.4th 1229, 1356-1357.)

Section 1043, subdivision (b) specifies grounds on which a defendant may be excluded from his or her trial after its commencement. Subdivision (b)(2) provides the Sixth Amendment right to be present at trial may be surrendered voluntarily. (People v. Lewis (1983) 144 Cal.App.3d 267, 276.) A defendant may not frustrate the orderly processes of the court by refusing to appear. We balance a felony defendants constitutional and statutory right to be present at trial with the societys interest in the orderly process of court. [Citation.] (People v. Pigage (2003) 112 Cal.App.4th 1359, 1369 (Pigage).) In determining whether the defendants absence was voluntarily, we review the totality of the record. (Ibid.)

In Pigage, the defendant was initially released on bail, but several times the court vacated bail and issued a bench warrant, only to reinstate bail. (Pigage at pp. 1366-1367.) The defendant failed to appear for the second day of trial, and advised the court through his girlfriend he was afraid to appear because he feared he would be taken into custody. She claimed the defendant had been threatened and had sought medical treatment for stress syndrome. After the defendant failed to appear on the courts order, the trial court declared that defendant had voluntarily absented himself. (Id. at p. 1368.) Pigage concluded that because defendant had many options to ensure his safety, his fears were insufficient justification for his refusal to appear. (Id. at p. 1369.)

Here, defendant refused to appear despite reasonable efforts by court and his counsel to persuade him to remain in the courtroom for the remaining proceedings. Defendant did not wish to listen; refused the entreaties, and indicated at the time of the verdict that he wished to return to jail. These circumstances support the trial courts conclusion defendants absence was voluntary.

III. THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANTS FARETTA MOTION.

Defendant contends that his request to proceed in pro per, made four days before trial at the time of the December 15, 2005 readiness hearing, was erroneously denied as untimely. (See, e.g., People v. Windham (1977) 19 Cal.3d 121, 126.) Defendant complains of the fact the court did not inquire about the adequacy of appointed counsel; further, he contends there was no indication he was playing the Faretta game in order to delay proceedings; there was no history of multiple motions; the reasons for his request are not on the record because the court did not inquire; although a continuance would have been necessary, no jury was empaneled; and the case went to trial only two months after filing of the information. Finally, he argues, although no express request for a continuance was made, because a request was implicit in his statement that he needed time to prepare for trial if he would be representing himself, it was clear a continuance was necessary to permit him to prepare his own defense, and the court erred in failing to grant a continuance.

A. Factual Background.

At the trial readiness conference, the court inquired whether defendant had read the preliminary hearing transcript and the police reports; although defendant had read the police reports, he informed the court he was not ready to proceed to trial on the following Monday. The court thereupon denied defendants motion.

B. Defendants Motion was Untimely.

A trial court must grant a defendants request for self-representation if such request is made knowingly, intelligently, unequivocally and in a timely manner. (Faretta v. California (1975) 422 U.S. 806, 835 (Faretta); People v. Valdez (2004) 32 Cal.4th 73, 97-98.) There is no fixed time before trial when a Faretta motion must be made. The motion is untimely, however, if made on the eve of trial, or when the case is being continued on a day-to-day basis. (People v. Clark (1992) 3 Cal.4th 41, 99-100.) An untimely Faretta motion is addressed to the sound discretion of the trial court. (People v. Barnett (1998) 17 Cal.4th 1044, 1104.) The trial courts discretion to deny an untimely motion exists to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice. (People v. Burton (1989) 48 Cal.3d 843, 852.)

In exercising its discretion, the court should consider certain factors, including the quality of counsels representation, the defendants 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. (People v. Windham, supra, 19 Cal.3d at p. 128; see also People v. Jenkins (2000) 22 Cal.4th 900, 959.) The trial court must consider the Windham factors; it may not summarily deny the motion. (People v. Rivers (1993) 20 Cal.App.4th 1040, 1050.) However, the record may reflect the trial court implicitly considered these factors. (People v. Marshal (1996) 13 Cal.4th 799, 828.) In reviewing the trial courts denial of a Faretta motion, we give considerable weight to the trial courts exercise of its discretion. (People v. Howze (2001) 85 Cal.App.4th 1380, 1397-1398.) Ultimately, the denial of a Faretta motion is subject to harmless error analysis. (People v. Rogers (1995) 37 Cal.App.4th 1053, 1058.)

Here, although the trial court did not expressly address the Windham factors in making its ruling, we find no error and no prejudice on the record presented. The record does not indicate counsels performance was deficient; further, the motion was made four days before trial. Given that defendant was minimally prepared (he had only read the police report), the delay and disruption to the proceedings would not have been trivial. In any event, defendant cannot demonstrate prejudice on this record because it is not reasonably likely the result would have been more favorable had he represented himself. (See People v. Rivers, supra, 20 Cal.App.4th at pp. 1051-1052.)

C. No Error In Trial Courts Failure to Grant A Continuance.

The trial courts refusal to grant a motion for a continuance is reviewed for abuse of discretion, and will not be disturbed on appeal absent a showing the trial court acted arbitrarily or exceeded the bounds of reason, all circumstances being considered. (People v. Froehlig (1991) 1 Cal.App.4th 260, 265.) Continuances will be granted during trial only upon a showing of good cause; a significant factor to consider is whether granting the continuance would be useful. (Pen. Code 1050, subd. (e); People v. Beeler (1995) 9 Cal.4th 953, 1003-1004.) The trial judge, in granting or denying a motion for a continuance, must consider the benefit expected by the moving party, the likelihood such a benefit will materialize, the burden on other witnesses, jurors, and the court, and whether substantial justice will be accomplished or defeated by a granting of the motion. (People v. Zapien (1993) 4 Cal.4th 929, 972.)

Aside from the fact that defendant never requested a continuance in the trial court, the record does not demonstrate any error from the lack of a continuance. It is not reasonably likely, on this record, that any benefit of a continuance, namely, defendants representation of himself superior to that of appointed counsel, would have materialized.

DISPOSITION

The judgment of the superior court is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

JOHNSON, Acting P. J.

WOODS, J.

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[1] All statutory references herein are to the Penal Code unless otherwise noted.

[2] During trial, the trial court granted the prosecutions motion to dismiss count two of the information, which had charged defendant with assault with an assault weapon in violation of section 245, subdivision (a)(3).

[3] Evidence Code section 140 provides that [e]vidence means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.

[4] In California, this long-standing common law rule was set forth by our Supreme Court in 1871. [A]ny order or action of the Court which, without evident necessity, imposes physical burdens, pains and restraints upon a prisoner during the progress of his trial, inevitably tends to confuse and embarrass his mental faculties, and thereby materially to abridge and prejudicially affect his constitutional rights of defense; and especially would such physical bonds and restraints in like manner materially impair and prejudicially affect his statutory privilege of becoming a competent witness and testifying in his own behalf. (People v. Harrington (1871) 42 Cal. 165, 168.)

[5] Penal Code section 1043, subdivision (a), requires the personal presence at trial of a felony defendant. Penal Code section 977, subdivision (b)(1), requires the personal presence of the defendant at the time of [the] plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present . . . .