P. v. Evans

Filed 5/16/06 P. v. Evans CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

I. INTRODUCTION

Defendant Pride Tracy Evans was charged with 19 felony counts after he allegedly defrauded 11 victims by retaining over $145,000 that he had collected from them through either a debt consolidation scheme or a real estate investment scheme. As part of a plea agreement, defendant pleaded no contest to all 19 counts, admitted a prior prison term allegation, and was sentenced to a prison term of six years. He appeals his conviction after receiving a certificate of probable cause. (Pen. Code, § 1237.5.)[1]

On appeal, defendant contends that the trial court committed reversible error when it denied his timely motion for self-representation under Faretta v. California (1975) 422 U.S. 806. For reasons that we will explain, we find that the motion for self-representation, made six days before trial, was untimely. We further find the trial court did not abuse its discretion in denying the motion and therefore we will affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Background

According to the probation report, defendant misrepresented himself as a legitimate debt consolidator between May 2001 and August 2002. He obtained money from eight victims after promising that he would use their funds to pay off their outstanding credit card balances. Defendant, who was not licensed or bonded, failed make any credit card payments and instead absconded with the funds. In 2002, defendant defrauded three additional victims who gave him money to invest in commercial real state. Defendant invested only half of the funds in real estate and spent the rest of the money. He also ceased communicating with the victims. The total amount of money taken from the 11 victims was $145,584.

On May 26, 2004, a second amended felony complaint was filed that charged defendant with 11 counts of theft of personal property valued over $400 (§§ 484, 487, subd. (a); counts 1, 3, 5, 7, 9, 11, 13, 15, 17, 18, 19), seven counts of engaging in business without a license (Fin. Code, §§ 12102, 12000; counts 2, 4, 6, 8, 10, 12, 14); and one count of first degree burglary (§§ 459, 460, subd. (a); count 16). The complaint further alleged that defendant had served one prior prison term (§ 667.5, subd. (b).)

Defendant was arrested on June 25, 2003. At all relevant times, he remained in custody with bail set at $3 million. The public defender was appointed to represent him and on May 27, 2004, defendant waived his right to a preliminary examination. After the information was filed on June 3, 2004, defendant pleaded not guilty and the matter was set on the master trial calendar for July 26, 2004.

On July 22, 2004, defendant waived time and the matter was set on the master trial calendar for October 18, 2004. Defendant appeared in court on July 28, 2004, the date originally set for the hearing on his motion to reduce bail. The trial court denied defendant's motion to reduce bail on July 29, 2004. Defendant did not appear in court again until October 12, 2004.

B. The October 12, 2004, Motion for Self-Representation

On October 12, 2004, defendant filed a written motion for self-representation pursuant to Faretta v. California, supra, 422 U.S. 806 (Faretta.) The trial court held a hearing on the motion on the same day. During the hearing, the following colloquy between the trial court, defendant and defense counsel took place regarding the imminent trial date:

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