Filed 2/5/18 P. v. Lupu CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

FLORIN LUPU,

Defendant and Appellant.


E067284

(Super.Ct.No. 16CR-032277)

OPINION


APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson, Jr., Judge. Affirmed.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Seth Friedman and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
The trial court placed defendant and appellant Florin Lupu on formal probation after a jury convicted him of dissuading a witness and two counts of misdemeanor assault. In this appeal, defendant argues the trial court erred when it failed to hold a hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) after he indicated at a pretrial hearing on his Faretta motion that he either wanted to represent himself or, “if not, then I would like to be represented by that attorney right there that’s sitting down.” We conclude that the trial court had no duty to hold a Marsden hearing because defendant never complained about his counsel or clearly indicated that he wanted to replace his counsel.
FACTS AND PROCEDURE
On April 12, 2016, defendant became angry with his wife as she was cooking dinner because she would not give him money for gambling. Defendant grabbed his wife from behind by her hair and forced her head down to within six inches of a frying pan containing hot oil over an open flame. He threatened to blind her if she did not give him money. Defendant’s wife got away from the kitchen. Defendant pushed his wife against a couch and stated he would kill her, just as a friend had killed his wife. She attempted to use the residence phone to call police, but defendant took it out of her hand. Defendant’s wife grabbed a cell phone and defendant threatened to kill her if she called the police. She ran to the front yard and was able to call the police.
Police interviewed defendant, his wife, and two of their five adult children. The adult children indicated defendant had a very bad temper and had badly abused his wife for many years. Their son indicated he does not let his children see defendant because he wants to protect them from him. Police had been called to the residence in 2015 for a domestic dispute, and California Highway Patrol had intervened later that year when defendant choked his wife and threatened to kill her while they were driving home from church.
Defendant required the use of a Romanian interpreter throughout these proceedings. At his arraignment on August 2, 2016, defendant made a motion to represent himself. The court set a hearing for August 10, 2016.
At the hearing held on August 10, 2016, the court asked defending if he still wished to represent himself. Defendant answered, “Yes.” The court stated it would give defendant a Faretta waiver form to read. The court stated it would go over the form with defendant, and that if he agreed with the form he could initial and sign it. Defendant stated, “I already signed it.” After an off-the-record discussion, the court stated on the record that defendant was still undecided about whether to represent himself, and offered to give defendant more time to think about it. The court stated they could discuss the matter again at the pretrial hearing set for August 16, 2016.
At the hearing on August 16, 2016, the court concluded that defendant did not make an “unequivocal request” to represent himself, and so denied the Faretta motion. Defendant’s statements at this hearing form the basis for this appeal, and are set forth in more detail post.
On October 5, 2016, the People filed a first amended information charging defendant with four felonies: attempted mayhem (Pen. Code, §§ 664, 203, count 1), assault with a deadly weapon (§ 245, subd. (a)(1), count 2), making criminal threats (§ 422, count 3), and dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1), count 4).
On October 13, 2016, the jury convicted defendant in counts 1 and 2 of the lesser included offense of misdemeanor assault (§ 240), acquitted him of count 3, and convicted him of count 4.
On November 15, 2016, the court suspended imposition of judgment and placed defendant on formal probation for three years. The court ordered defendant to serve 223 days in jail, with credit for 222 days served, and ordered him released to Steps for Life Community Services.
This appeal followed.
DISCUSSION
The Issue
Defendant argues the trial court erred when it failed to conduct a Marsden hearing when defendant stated at a pretrial hearing that he wanted another attorney who was present in the courtroom. The People counter that the court had no duty to hold a Marsden hearing because defendant never complained about counsel or clearly indicated that he was asking to replace counsel.
The Facts
The relevant proceedings on August 16, 2016, are set forth here in pertinent part:
“THE COURT: All right. Counsel, [Defendant], we have had this on calendar today. Last week [Defendant] was indicating he might want to represent himself.
“Counsel, have you had an opportunity to speak with your client this morning?
“[DEFENSE COUNSEL]: I did, I briefly spoke with [Defendant]. I asked him several times whether he was going to represent himself or stay with the Public Defender’s office and he would not give me an answer.
“THE COURT: [Defendant], the state of the law is, unless you make a clear, unequivocal request of the Court to represent yourself, the Court will take no action.
“Sir, what I’m going to do is ask you a yes-or-no question, very specific. At this time, are you requesting to represent yourself in pro. per., meaning without counsel? That’s a yes-or-no question. Before you answer, sir, anything but a ‘yes,’ the Court is going to deem that as not a request for pro. per. or self-representation. Again, do you wish to represent yourself in pro. per. status, yes or no?
“THE DEFENDANT: I want to represent myself with you, ma’am (indicating).
“THE INTERPRETER: Referring to interpreter.
“THE DEFENDANT: Or, if not, then I would like to be represented by that attorney right there that’s sitting down.
“THE COURT: All right. [Defendant], I am going to do this one more time. I only want to hear a ‘yes’ or a ‘no’ answer. Anything but a ‘yes,’ I’m going to take that as not a request for self-representation. Again, do you want to represent yourself in pro. per. status?
“THE DEFENDANT: (In English) The question is very wrong, your Honor. I’m sorry. I respect you. I respect the Court —
“THE COURT: [Defendant], let me stop you, sir. [Defendant], the Court has certain guidelines or rules the Court must follow when dealing with the issues of self-representation, meaning you representing yourself in pro. per. status. Because you have not answered the questions appropriately in a way that the Court deems is an affirmative and unequivocal request for self-representation, the Court is going to deny that request at this time.
“So, [defense counsel], how do you wish to proceed, sir?
“[DEFENSE COUNSEL]: If there is no request to represent himself, our office will continue to represent [Defendant].
“THE COURT: Okay. [Defendant], what the Court has done, the Court is going to find that you have not made an unequivocal request to represent yourself so you’ll continue with representation by the Public Defender’s Office.
“[Defense Counsel], date?
“THE DEFENDANT: (Through the Interpreter) Yes, but I want to be with the other attorney.
“THE COURT: There’s no question pending and there is no need for you to discuss any matters with the Court at this time. Conversation will be through counsel.”
The remainder of the hearing concerned calendaring and issues defendant was having in custody with medical problems and other inmates.
The Law
“When a criminal defendant seeks substitution of counsel on the ground that appointed counsel is providing inadequate representation, a trial court must give the defendant an opportunity to explain the reasons for the request. [Citations.] Although no formal motion is necessary, there must be ‘at least some clear indication by defendant that he wants a substitute attorney.’ [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 156-157.)
Here, one purpose of the hearing on August 16, 2016, was to allow defendant to finally decide whether he wanted to formally ask to represent himself. After speaking with defendant, the court denied defendant’s informal request under Faretta on the ground that, despite repeated questioning from the court, defendant would not make an “unequivocal request” to represent himself. Similarly for purposes of a Marsden request, defendant did not actually seek substitution of counsel or make any “clear indication” that he wanted a substitute attorney. Defendant stated at the hearing that he wanted to represent himself with the help of the interpreter, but later backed off from making the unequivocal request required at a Faretta hearing. After making that statement, defendant then asserted an alternative request, if he could not represent himself, to be with an attorney to which he pointed in the courtroom: “Or, if not, then I would like to be represented by that attorney right there that’s sitting down.” A few moments later, after the court found defendant was not unequivocal enough about wanting to represent himself, defendant stated: “Yes, but I want to be with the other attorney.” Neither of these statements is a clear indication that defendant wanted to have his current attorney dismissed. Rather, he expressed, without explaining why, that he would like the other, unidentified attorney as an alternative if he could not represent himself. We point out that whether defendant could represent himself was within his own power—he had merely to stop equivocating and consistently tell the court that he wanted to represent himself.
Further, even if we were to conclude that defendant was asking for another attorney, defendant simply did not explain why. Maybe he liked the way the other attorney looked or spoke. Maybe he picked the other attorney at random or because he or she had just obtained a positive result for their client in court. We just do not know because defendant did not say. To trigger the requirement for a Marsden hearing, defendant was required to assert inadequate representation by or other material dissatisfaction with his appointed attorney. Defendant at no point in the record expressed dissatisfaction with his attorney up to and including the August 16, 2016 hearing. For this reason alone, we reject defendant’s contention on appeal that the court erred when it did not hold a Marsden hearing.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.


We concur:


CODRINGTON
J.


FIELDS
J.