P. v. Ellis
Filed 9/23/13 P. v. Ellis CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT LEE ELLIS,
Defendant and Appellant.
B243116
(Los Angeles
County
Super. Ct.
No. TA122496)
APPEAL from
a judgment of the Superior Court
of
County, Tammy Chung Ryu, Judge. Affirmed.
Jonathan E.
Demson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Linda C. Johnson,
Supervising Deputy Attorney General, Michael Katz, Deputy Attorney General, for
Plaintiff and Respondent.
>
INTRODUCTION
A jury
convicted defendant and appellant Robert Lee Ellis of
Code, § 236
title="">[1]),
criminal threats (§ 422, subd. (a)), assault by means likely to produce great
bodily injury (§ 245, subd. (a)(4)), and dissuading a witness from prosecuting
a crime (§ 136.1, subd. (b)(2)). The
jury found true the allegations that defendant personally inflicted great
bodily injury in the commission of the false imprisonment, criminal threats,
and assault. (§ 12022.7, subd.
(a).) The trial court found true the
allegations that defendant suffered a prior conviction within the meaning of
sections 667, subdivisions (a)(1) and (b) through (i), and 1170.12,
subdivisions (a) through (d). The trial
court sentenced defendant to 21 years, four months in state prison. On appeal, defendant contends that the trial
court violated his constitutional right
of self-representation when it denied his Faretta
We affirm.
FACTS
title="">[3]
Defendant
was charged with physical abuse and
criminal threats directed at his girlfriend.
After he was arrested he called her and told her to testify that someone
else had inflicted the injuries.
DISCUSSION
Defendant
contends that the trial court violated his constitutional right of self-representation
when it denied his Faretta
motion. He asserts that because his
motion was timely and not made for the purpose of delaying or disrupting the
trial, the trial court violated his constitutionally mandated unconditional
right to represent himself and the trial court’s error was reversible per
se. We hold that defendant’s motion was
not timely, having been made after jury selection commenced. Thus, defendant’s motion was subject to the
trial court’s discretion. Defendant does
not argue in the alternative that the trial court prejudicially abused its
discretion in denying his motion if untimely.
A. Background
On July 2,
2012, a panel of prospective jurors was called and voir dire commenced. The next day, prospective juror number four
informed the trial court that he had overheard a conversation outside the
courtroom that may have been about the case against defendant. Because the prospective juror thus had become
a potential witness, the trial court granted the defense motion for a “mistrialâ€
On July 5,
before jury selection resumed, and as a new jury panel was checking in, defense
counsel informed the trial court that defendant wanted to represent
himself. Defendant also told the trial
court that he wanted to represent himself for the trial, stating, “I just would
like my Faretta rights.†The trial court acknowledged a defendant’s
right to represent himself, but added, “At this late in the process where we
already actually started the jury trial and we’re now going to start to impanel
a new set of jurors in this case, it does seem kind of late for you to be
asking the court.â€
The trial
court confirmed that defendant had not previously requested to represent
himself and asked him, “[C]an you tell me why you want to represent yourself
and how long you thought of doing this?â€
Defendant replied, “Your Honor, I been thinking about representing
myself. I think I could represent myself
better than the public defender here with all due respect. I have just, like, received my case and
everything. I could represent myself
better because I have—I have law experience.
I have no law experience.†Defendant
had not previously represented himself, but had studied criminal law by reading
books while in prison from the age of 16 to the age of 24. Defendant understood that the charges against
him carried a sentence of life in prison.
The trial
court asked defendant if he would be ready to start the trial that day if the
trial court granted his request to represent himself or if he would need time
to prepare. Defendant replied, “Time to
prepare because I don’t know my case and I never really discussed my case with
the deputy public defender here. I
barely finding out things in my case from Friday, things that I can prove and
all kinds of things, so—†Defendant said
that he would need “60, 90 days from today†to prepare.
The trial
court asked defendant if he was requesting additional time so that he could
share information with defense counsel or if he was saying that he was not
speaking with defense counsel. Defendant
responded, “I would like to take the case into my own hands. I never—I never—me and him did never talk
about the case. This is the most I
talked to him. There are things in my
case that I never knew about until I got my paperwork Friday. He told me that he sent my paperwork three
months ago. I never received my
paperwork.â€
Defendant
clarified that the “paperwork†to which he referred was his preliminary hearing
transcript. The trial court said, “You
were there during the preliminary hearing so you heard what everybody
said.†Defendant replied, “Yeah, but we
never discussed the case. It was never
discussed and I just thought there were certain things that we talked
about. But when I looked into the case,
there is a whole lot of stuff and the case was handled wrong. So I would like to take the matter into my
own hands.â€
The trial
court asked defendant if he wanted time to talk to defense counsel about some
of the questions he might have. Defendant said, “No, ma’am.†The trial court asked if defendant had tried
to talk with defense counsel about his questions. Defendant said that he had. The trial court asked, “And so what came
up?†Defendant responded, “Nothing came
up at all. Nothing came up.†The trial court inquired if defendant was
asking that new defense counsel be appointed.
Defendant replied that he was not seeking new counsel. The trial court took a brief recess to
consider defendant’s Faretta
motion.
When the
trial court returned, it asked defendant a series of questions concerning his
first motion to represent himself, he was aware of the maximum sentence he was
facing, the only legal training he had was reading law books in prison, and he
understood that he would be at a disadvantage because he would be facing a
prosecutor with years of experience who had been trained in law school and in
the District Attorney’s Office and who had tried numerous jury trials. Defendant said that he further understood
that the trial court would not help him, he would not be entitled to special
privileges because he was representing himself, he would have to conduct
himself in court as professionally as an attorney, and he might not have access
to the types of research and other resources available to the District
Attorney’s Office.
The trial
court noted that there had been two days of jury selection and that 35
prospective jurors were waiting outside the courtroom. It again acknowledged that a defendant had
the right to represent himself, but explained that the right was limited by the
time in the proceedings the request for self-representation was made. The trial court then provided a chronology of
events in defendant’s case: on March 20,
defendant was arraigned; at least as of April 4, defense counsel had been
appointed to represent defendant; on April 18, defense counsel represented
defendant at the preliminary hearing and succeeded in having one count
dismissed; on May 2, defendant was arraigned on the information and, the trial
court observed, it appeared that “there was no time waiver entered at all
requesting any additional time to investigate or get discoveryâ€; trial was set
for June 29, as day 57 of 60; pretrial hearings were held on May 30 and June
14, at which hearings defendant was present and represented by defense counsel;
the trial was trailed from June 29 to July 2 at the prosecutor’s request due to
witness unavailability; on July 2, the case was sent to the trial court for
trial; and on July 2 and 3, jury selection was conducted and, the trial court
observed, may have been completed had the trial court not required a new jury
panel due to the issue with prospective juror number four.
The trial
court stated that defendant had not requested to represent himself or expressed
dissatisfaction with defense counsel at any time during the chronicled
events. It stated that defendant’s
and that it was inclined to deny it. In
addition, the trial court noted, defendant had said that he needed 60 to 90
days to prepare to prepare for trial if his motion was granted.
The trial
court then denied defendant’s Faretta
motion. It asked defendant if he wanted
to “say anything else.†Defendant stated
his belief that because the trial court had declared a mistrial, he should
receive a new trial date 60 days from the date of the declared mistrial.
is the case since we were in jury selection.
I believe both sides have announced that they were ready to proceed to
start the trial with the jury today.
Nobody said that they wanted a continuance to prepare anything more.â€
The trial
court asked defendant if he had anything else to say. Defendant said, “[T]he case is a sloppy case
how it’s been done. There are motions
and things that haven’t been—there’s a lot of information that I gave to him
and he have not, you know, moved forward to use it or anything of that
nature.†The trial court said that it
appeared that defendant was dissatisfied with defense counsel’s representation
and asked defendant if he was asking the court to relieve defense counsel and
appoint new counsel. The trial court
informed defendant that it could hold a confidential hearing at which he could
state the reasons he was dissatisfied with defense counsel, and asked him if he
wanted it to consider appointing new counsel.
Defendant
replied, “That’s not the case. It’s not
that I’m dissatisfied with him. It has
nothing to do with it. I can handle my
case to the best of my ability—to the best for me. That’s why, you know, I want to take it into
my own hands because I know what I’m doing.
I know what I’m doing so—†The
trial court stated, “So it’s not because you are not satisfied with the way
[defense counsel]’s been handling your case.
You just want to represent yourself.â€
Defendant responded, “Yes, ma’am.
I think it would be best for me.
I’m sure about that.
The trial
court observed that when it declared a mistrial, both sides indicated that they
were ready to proceed and neither side stated that the “mistrial†started a new
60-day period to bring the case to trial or indicated that it needed more time
to prepare.
title="">[7] The only reason there had been a delay was
because there were no available jurors when the “mistrial†was declared. Any request for a further delay, the trial
court stated, would be untimely.
Defendant said that he did not have an opportunity at the time the
“mistrial†was declared to speak with defense counsel—apparently about
receiving an additional 60 days to prepare due to the “mistrial.†Defendant again stated his belief that once
the trial court declared a “mistrial†he had the right to proceed in “pro per
because from that time forward, it is 60 days.
It is 0 to 60 days from that moment of mistrial. Right or wrong?†The trial court stated that
defense counsel had not requested that the 60-day trial period start anew and
reiterated that both parties indicated that they wanted to proceed immediately.
Because it
was almost noon, the trial court stated that it would resume defendant’s matter
at 1:30 p.m. The trial court told
defendant, “So I want you to reconsider what you had asked the court, if you
want to add anything else. I will give
you time to think about it. I will also
give you time to talk to [defense counsel] further between now and 1:30.â€
After the
recess, defense counsel stated, “Your Honor, I believe that [defendant] wants
to go pro per and is ready to go forward from this moment.†The trial court addressed defendant’s
contention that the 60-day period to bring him to trial started again when the
trial court declared a “mistrial.†The
trial court explained that although defense counsel had moved for a “mistrial,â€
and therefore the trial court had referred to “it†as a “mistrial,†“jeopardy
did not attach because we did not swear in the 12 jurors. We are still in jury selection, so it’s not a
“mistrial†where it triggers new time and all of that. [¶] It
is actually just a—just, you know, proceeding forward with jury selection and
we are just getting a new panel. We are
getting a new panel, so it was not legally a mistrial. I just asked for a new panel, so the new time
period was not started. [¶] Regardless of that—well, especially in light
of that, the court is not inclined to grant the Faretta request. It is not
only a further delay of the case in which the court can deny a motion to
represent oneself, but as I stated earlier, we’re in the middle of jury
selection. We started the trial.â€
The trial
court said to defendant, “I’m understanding what [defense counsel] is saying
that you are not asking for a continuance.
Are you saying even if I grant it you, you are ready to go forward?†Defendant responded, “Yes, I’m ready to
go.†Defendant said, “If you can give me
a court order to get to the pro per provider to get the resources that I
need.†The trial court responded, “I
would do that if I granted a Faretta,
but I am not going to do that, okay. It
is—this is a very serious case. We’re in
the middle of jury selection. We already
started the trial and you’re asking to represent yourself. The court can deny it. [Defense counsel] is going to remain in the
trial.â€
Defendant
asked, “So I lose my right to go pro per; right?†The trial court responded, “You do have a
right to go pro per, but the court also has some discretion in determining when
is the right time to grant the pro per status.
If you had asked for it earlier before we started the trial, that would
have—that may have been different, but—â€
Defendant asked, “What is the reason for it? Because there is not handicaps on my
end. So I don’t understand why we can’t
proceed me being my own counsel with such experience that I have.†The trial court responded, “As I stated, you
do have the right, but the court has the right to deem under certain
circumstances that it is not appropriate.â€
B. Application of Relevant Principles
“A trial court must grant a
defendant’s request for self-representation if the defendant unequivocally
asserts that right within a reasonable time prior to the commencement of trial,
and makes his request voluntarily, knowingly, and intelligently. (People v. Welch (1999) 20 Cal.4th
701, 729 [85 Cal.Rptr.2d 203, 976 P.2d 754]; People v. Windham (1977) 19
Cal.3d 121, 127-128 [137 Cal.Rptr. 8, 560 P.2d 1187] (Windham).) As the high court has stated, however, ‘
have made clear that the right of self-representation is not absolute.’ (Indiana v. Edwards (2008) 554 U.S.
164, 171 [171 L.Ed.2d 345, 128 S.Ct. 2379, 2384]; see Jones v. Barnes
(1983) 463 U.S. 745, 751 [77 L.Ed.2d 987, 103 S.Ct. 3308], citing
supra, 422 U.S. 806 [‘we have held that, with some limitations, a defendant
may elect to act as his or her own advocate . . .’].) Thus, a Faretta motion may be denied if
the defendant is not competent to represent himself (Indiana v. Edwards,
at p. 178 [128 S.Ct. at p. 2388]), is disruptive in the courtroom or engages in
misconduct outside the courtroom that ‘seriously threatens the core integrity
of the trial’ (People v. Carson (2005) 35 Cal.4th 1, 6 [23 Cal.Rptr.3d
482, 104 P.3d 837]; see id. at p. 8; Faretta, at p. 834, fn. 46), or
the motion is made for purpose of delay (People v. Marshall (1997) 15 Cal.4th
1, 23 [61 Cal.Rptr.2d 84, 931 P.2d 262] (Marshall )).†(People v. Lynch, supra 50 Cal.4th at
pp. 721-722.) A trial court has no
discretion to deny a valid, timely Faretta
motion. (Id. at p. 726.) The
erroneous denial of a timely motion for self-representation is reversible per
se. (People
v. Butler (2009) 47 Cal.4th 814, 824.)
The
California Supreme court has “long held that a self-representation motion may
be denied if untimely. (Windham,
supra, 19 Cal.3d at pp. 127-128.)†(People
v. Lynch, supra, 50 Cal.4th at p. 722.)
“In order to invoke the constitutionally mandated unconditional right of
self-representation, a defendant must assert that right within a reasonable
time prior to trial. The latter requirement serves to prevent a
defendant from misusing the motion to delay unjustifiably the trial or to
obstruct the orderly administration of justice.
[Citation.] If the motion is
untimely—i.e., not asserted within a reasonable time prior to trial—the defendant has the burden of justifying the
delay. [Citation.]†(People
v. Horton (1995) 11 Cal.4th 1068, 1110 [motion made on the day of trial was
scheduled to start was untimely] (italics added).) “‘[O]nce a defendant has chosen to proceed to
trial represented by counsel,’ a defendant’s motion for self-representation is
‘addressed to the sound discretion of the court.’ (Fn. omitted.) (Windham, at p. 128.)†(People v. Lynch, supra, 50 Cal.4th at
p. 722.) The erroneous denial of an
untimely Faretta motion is reviewed
under the harmless error test of People
v. Watson (1956) 46 Cal.2d 818, 836.
(People v. Nicholson (1994) 24
Cal.App.4th 584, 594-595.)
“[T]imeliness
for purposes of Faretta is based not
on a fixed and arbitrary point in time, but upon consideration of the totality
of the circumstances that exist in the case at the time the self-representation
motion is made.†(People v. Lynch, supra, 50
Cal.4th at p. 724.) “[A] trial court may
consider the totality of the circumstances in determining whether a defendant’s
pretrial motion for self-representation
is timely. Thus, a trial court properly
considers not only the time between the motion and the scheduled trial date,
but also such factors as whether trial counsel is ready to proceed to trial, the
number of witnesses and the reluctance or availability of crucial trial
witnesses, the complexity of the case, any ongoing pretrial proceedings, and
whether the defendant had earlier opportunities to assert his right of
self-representation.†(
in accord with the purpose of the timeliness requirement, which is ‘to prevent
the defendant from misusing the motion to unjustifiably delay trial or obstruct
the orderly administration of justice.’ [Citation.]†(Id.
at p. 724.)
Defendant’s
Faretta motion was unequivocal,
voluntary, knowing, and intelligent. (People
v. Lynch, 50 Cal.4th at p. 721.) It
was not, however, timely. Defendant made
his Faretta motion on the third day
of jury selection. The Supreme Court has
held untimely a Faretta motion made
on the day trial was scheduled to commence.
(People v. Horton, supra, 11
Cal.4th at p. 1110.) Defendant contends
that his motion was timely because it was brought before the commencement of
jury selection on July 5, 2012, and it was not accompanied by a request for a
continuance. He asserts that the trial
court’s characterization of the timing of his motion as “in the middle of jury
selection†was disingenuous as the trial court excused the jury panel on July
3, having declared a mistrial. He notes
that he brought his motion on July 5, before a new panel of prospective jurors
had entered the courtroom. Thus,
defendant reasons, July 5 was “tantamount in every conceivable way to the first
day of trial, and since jury selection had yet to begin, [he] effectively
brought his motion before his actual
trial began.â€
We disagree with defendant’s
analysis that July 5 was the first day of jury selection. Jury selection commenced on July 2, the jury
panel was excused on July 3 due to the issue with prospective juror number
four, and a new jury panel was present on July 5 for jury selection to
continue. Moreover, under
page 1110, even if July 5 was the first day of jury selection, defendant’s
was made on the day set for trial.
Further, defendant acknowledged he was not ready and needed a
continuance. Only when he observed that
the trial court considered this as a basis to now allow self representation did
he reverse course. Accordingly, the
trial court did not err in denying defendant’s Faretta motion. Defendant
does not argue alternatively that if his motion was untimely, the trial court
prejudicially abused its discretion in denying it.
Defendant
contends that the circumstances of his Faretta
motion were like those in People v. Tyner
(1977) 76 Cal.App.3d 352 where error was found.
There, on the day the defendant’s matter was called for jury trial, but
before the jury was impaneled, the defendant expressed his
displeasure with defense counsel’s representation, and told the trial court,
“(1) he wanted to ‘dismiss counsel,’ (2) he wanted to represent himself, (3) he
was aware that he was facing ‘ten years to life,’ and (4) he
was ready to proceed forthwith.†(
it is undisputable that appellant’s motion for self-representation was made
prior to trial and was not accompanied by any request for a continuance, its
grant would not have obstructed the orderly administration of justice. Therefore, we can only conclude appellant was denied his otherwise unconditional
constitutional right of self-representation.â€
(Id. at p. 355.)
People v. Tyner, supra, 76 Cal.App.3d 352 is distinguishable. In that case, the defendant’s request to
represent himself was made on the day the matter was called for jury trial and
was viewed as having been made prior to trial.
Here, defendant did not
request to represent himself on the first day of trial. Instead, he made the request on the third day
of jury selection. Moreover, as stated
above, the Supreme Court has held untimely a Faretta motion made on the day trial was scheduled to
commence. (People v. Horton, supra, 11 Cal.4th at p. 1110.)
DISPOSITION
The
judgment is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.
MOSK,
Acting P. J.
We concur:
KRIEGLER,
J.
KUMAR,
J.
name="_ftn1" title="">
noted.
name="_ftn2" title="">
(1975) 422 U.S. 806 (Faretta).
