P. v. Bates

Filed 10/24/06 P. v. Bates CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Tomson T. Ong, Judge. Affirmed.

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

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez, Lawrence M. Daniels, and Kathy Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

Dustin Jay Bates appeals from his conviction of possession of methamphetamine for sale. He argues the trial court erred by summarily denying Faretta[1] and Marsden[2] motions. We find no error and affirm.

FACTUAL AND PROCEDURAL SUMMARY

On May 3, 2005, Bates’s parole officer contacted the Los Angeles Police Department and requested that Bates be arrested for violating parole. As a result, police searched a motel room which had been rented by Bates and found three bags of methamphetamine and 11 empty bags. The bags had images of fruit printed on them. Police later apprehended Bates and recovered four more fruit-printed bags of methamphetamine. Bates was charged with possession of methamphetamine for sale, in violation of Health and Safety Code section 11378.

Before trial, Bates made a Marsden motion requesting substitution of counsel. After a hearing, the court denied the motion, finding that the showing made was premature and insufficient.

At trial, Bates’s parole officer was expected to be called as one of the prosecution’s rebuttal witnesses. Just before the defense rested, Bates’s attorney informed the court that Bates wanted counsel to ask the parole officer questions which, in counsel’s view, were outside the expected scope of the prosecution’s direct examination of the parole officer. Bates’s attorney explained that the questions went to whether the parole officer thought Bates was a member of the Aryan Brotherhood, whether he believed Bates was an “animal,” and whether Bates had ever told him that he was being framed by police.

The court found that bias questions regarding whether the parole officer thought Bates was a member of the Aryan Brotherhood and an “animal” were irrelevant to the charge. The court explained that the parole officer was only being called to confirm that he had directed the police to arrest Bates. As a result, the court said it would not allow the bias questions. With respect to whether Bates had told his parole officer that he was framed by police, the court ruled that the question could not be asked because it called for hearsay and did not satisfy any exception to that rule.[3] The following colloquy then occurred:

“[Defense Counsel]: These are rules of evidence.

“The Defendant: I never had an attorney go over question asked witness before.

“[Defense Counsel]: This is called an offer of proof that the court has asked me.

“The Defendant: I never had attorney do that in all the trials -

“The Court: Thank you. That being the case have a seat counsel let’s bring in the jurors?

“The Defendant: Can I ask to go pro per?

“The Court: No pro per status is requested.

“The Defendant: A Marsden hearing.

“The Court: We are in the middle of trial, sir, you cannot. Thank you.”

At the conclusion of the trial, the jury found Bates guilty of the charge and found that he had sustained the two priors alleged. He was sentenced to prison, and now appeals.

DISCUSSION

I

Bates argues the trial court erred by summarily denying his Faretta motion for self-representation. “[I]n order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial.” (People v. Windham (1977) 19 Cal.3d 121, 127-128 (Windham).) A Faretta motion brought after trial has begun is untimely and the decision to grant or deny it is left to the discretion of the court. (Windham, supra, at p. 128.) Since Bates’s motion was untimely, we review the trial court’s ruling for abuse of discretion. (See People v. Roldan (2005) 35 Cal.4th 646, 688.)

A Faretta motion must be unequivocal; this one was not. “This rule ‘is necessary in order to protect the courts against clever defendants who attempt to build reversible error into the record by making an equivocal request for self-representation.’” (People v. Roldan, supra, 35 Cal.4th at p. 683, quoting People v. Marshall (1997) 15 Cal.4th 1, 22.) “Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant’s conduct or words reflecting ambivalence about self-representation may support the court’s decision to deny the defendant’s motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied.” (People v. Marshall, supra, at p. 23.)

When Bates’s attorney explained the substance of potential questions to be asked of the parole officer, the court ruled that the questions would not be allowed based on irrelevance and hearsay. At this point, it is not clear from the reporter’s transcript what Bates was saying, but Bates’s attorney responded, “These are rules of evidence.” Bates then stated, “I never had an attorney go over question asked witness before . . . I never had attorney do that in all the trials.” He then asked, “Can I ask to go pro per?” This was a request for information, not an unequivocal Faretta motion. (See People v. Marlow (2004) 34 Cal.4th 131, 147.) Thus, the trial court correctly observed, “No pro per status is requested.” Bates did not follow up with a claim that he was seeking to represent himself.

It also appears that Bates made the Faretta motion out of frustration and to express dissatisfaction with counsel’s choice to share the substance of the questions with the court and the prosecution prior to asking them. The motion was equivocal. Bates’s Marsden motion requesting substitute counsel, made immediately afterwards, is further evidence that he did not want to represent himself. Because Bates did not “‘”articulately and unmistakably”’” request self-representation, he did not invoke his Faretta right. (People v. Valdez (2004) 32 Cal.4th 73, 99; Cf. Moon v. Superior Court (2005) 134 Cal.App.4th 1521.)

Even if Bates’s Faretta motion had been unequivocal, the motion was properly denied. When ruling on a Faretta motion, a court should consider “the quality of counsel’s representation of the defendant, the defendant’s 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.” (Windham, supra, 19 Cal.3d at p. 128.) A reviewing court must give “‘considerable weight’” to a trial court’s exercise of discretion in denying an untimely Faretta motion. (People v. Howze (2001) 85 Cal.App.4th 1380, 1397-1398.)

Bates argues the trial court failed to properly consider the Windham factors. The record shows first that Bates’s reason for making the request was disagreement over trial tactics; that is an “‘insufficient reason to grant an untimely Faretta request.’” (People v. Scott (2001) 91 Cal.App.4th 1197, 1206.) Second, disruption and delay obviously would have resulted from allowing Bates to proceed in propria persona because the request came on the last day of trial. Bates certainly would have needed time to prepare for cross-examination, closing argument, and the prior convictions hearing. “That defendant did not seek a continuance is not determinative.” (People v. Barnett (1998) 17 Cal.4th 1044, 1106.) Third, Bates demonstrates some prior proclivity to substitute counsel as he had made a prior Marsden motion, and fourth, the trial court was aware of the quality of Bates’s representation because of the previous Marsden hearing and the colloquy preceding the Faretta motion. “[W]hile the trial court may not have explicitly considered each of the Windham factors, there were sufficient reasons on the record to constitute an implicit consideration of these factors.” (People v. Scott, supra, 91 Cal.App.4th at p. 1206.)

Under these circumstances, we find no abuse of discretion.

II

Bates contends the trial court erred by failing to allow him to present the factual basis for his Marsden motion, failing to inquire into the reasons for his Marsden motion, and failing to hold a Marsden hearing. As a result, he claims that his conviction should be reversed.

After Bates asked if he could make a Faretta motion, the court stated that “No pro per status is requested.” Bates then stated, “A Marsden hearing.” Construing this language generously, we will assume that this was a question although no question mark appears in the reporter’s transcript. Following that assumption, we will make another: that Bates made a Marsden motion, and thus we do not regard the issue as forfeited as respondent suggests.

The California Supreme Court has explained the Marsden rule as follows: “When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation - i.e., makes what is commonly called a Marsden motion [citation] - the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Substitution of counsel lies within the court’s discretion.” (People v. Smith (2003) 30 Cal.4th 581, 604.)

The court has a duty to inquire into the defendant’s claim “only when the defendant asserts directly or by implication that his counsel’s performance has been so inadequate as to deny him his constitutional right to effective counsel.” (People v. Molina (1977) 74 Cal.App.3d 544, 549.) “The mere fact that there appears to be a difference of opinion between a defendant and his attorney over trial tactics does not place a court under a duty to hold a Marsden hearing.” (People v. Lucky (1988) 45 Cal.3d 259, 281.) A trial court’s denial of a Marsden motion is reviewed for abuse of discretion. (People v. Earp (1999) 20 Cal.4th 826, 876.)

Bates explained the basis of his Marsden motion in the colloquy immediately preceding his request for a Marsden hearing; it was a disagreement with his attorney over trial tactics. Bates was displeased that his attorney shared potential questions Bates wanted asked with the court and in front of the prosecutor. Counsel’s decision was a tactical one aimed at preserving the questions. She inquired into the admissibility of the questions before resting so that she did not lose the opportunity to ask them when the parole officer was called as a prosecution rebuttal witness. Tactical disagreements alone do not constitute “‘”irreconcilable conflict.”’” (People v. Roldan, supra, 35 Cal.4th at p. 682.) Further, Bates did not offer to relate specific instances of inadequate performance. (See Marsden, supra, 2 Cal.3d at p. 124.) Nor did he assert that his counsel was ineffective (and the record does not disclose any basis to believe that she was). Thus, in the context of the colloquy, Bates’s request for a Marsden hearing was based merely on a disagreement over trial tactics. Under these circumstances, the court was under no duty to make a Marsden inquiry or hold a Marsden hearing.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

SUZUKAWA, J.

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[1] Faretta v. California (1975) 422 U.S. 806.

[2] People v. Marsden (1970) 2 Cal.3d 118.

[3] No issue was raised as to the correctness of these evidentiary rulings.