>P. v. Evans















Filed 8/15/12 P. v. Evans CA4/1











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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT



DIVISION
ONE



STATE
OF CALIFORNIA






>

THE PEOPLE, Plaintiff and Respondent, v. WAYNE TRUVOLL EVANS, Defendant and Appellant.

D060227 (Super. Ct. No. SCD229300)

APPEAL from an order of the Superior
Court of San Diego
County, Michael T. Smyth, Judge. Affirmed.



Defendant William Evans pleaded
guilty to forging a financial document
unlawfully and with the intent to defraud (Pen. Code, § 475, subd.
(a)). On appeal, Evans contends his pretrial
request to represent himself was erroneously denied and that the denial was
constitutional error requiring reversal of his conviction without analysis of
prejudice.[1] We reject this contention and affirm the
judgment.

FACTUAL
AND PROCEDURAL BACKGROUND

Evans was originally represented by the Public Defender's
Office. On September 28, 2010, Evans requested a >Marsden[2]
hearing. The court granted Evans's
motion and appointed the Alternate Public Defender (APD) to replace the Public
Defender's Office as Evans's counsel.

On November 2,
2010, Evans made a Marsden
motion to replace counsel appointed from the APD. The court held a hearing on the request, but
denied the motion.

On December 14,
2010, Evans made another Marsden
motion to replace his appointed counsel from the APD. After a hearing, the court again denied the
motion. Evans then immediately requested
to represent himself. Evans filled out
and signed an "Acknowledgement Regarding Self-Representation and Waiver of
Right to Counsel (Faretta/Lopez
waiver)" and the court granted Evans's request.

On December 22,
2010, Evans indicated he wanted to give up his pro per status and
have an attorney from the Office of Assigned Counsel (OAC) appointed to
represent him. Evans told the court,
"I believe last time you was going to appoint me OAC because I think
MacNeil [the prosecutor] said I had a problem with the last." The court agreed, stating "I think we
agreed if the attorney -- if counsel is going to be appointed then it either
goes through OAC, because we thought both the Public Defender and the Alternate
Public Defender would be conflicted."
The court granted Evans's request for counsel and scheduled a hearing
for December 28 "to affirm the appointment of counsel through the
[OAC]."

On December 28,
2010, representatives of both the OAC and the APD appeared on
behalf of Evans before a different judge than the week before. To clarify who should represent Evans, the
parties were sent back to the judge who presided over the December 22
proceedings. The court concluded that
appointing the OAC was a mistake and that the APD would be the appropriate
agency at that stage. The court
confirmed counsel from the APD as the correctly appointed counsel for
Evans. Evans immediately objected,
stating that he would rather represent himself.
The court denied Evans's request, stating that it was "too
late" and that Evans was "gaming the system." Evans argued that he only gave up his pro per
status "on the grounds [he] get OAC," to which the court responded
that Evans relinquished his pro per status and did not have the right to choose
who the court appointed to represent him.

Evans proceeded through the rest of the litigation
process, including at least four more court appearances, represented by counsel
from the APD's office. During that time,
Evans did not bring a Marsden motion
or make a request to discharge his counsel and proceed pro se. On July
7, 2011, while being represented by the APD's office, Evans pleaded
guilty to forging a financial document unlawfully and with the intent to
defraud and was sentenced to three years in prison, concurrent with his
sentence in a related case.

On appeal, Evans insists that his
request to try his case pro se was not untimely, equivocal, made for the
purpose of delay, or otherwise improper.
Though Evans's request, made a month before trial was scheduled to begin
and without an accompanying request for a continuance, was timely, a thorough
examination of the record shows it was not unequivocal.

DISCUSSION

The Sixth Amendment to the United
States Constitution gives a criminal defendant the right to represent
himself or herself without the assistance of counsel. (Faretta
v. California (1975) 422 U.S. 806, 819.)
Because a criminal defendant also has a constitutional right to
effective assistance of counsel, a right that secures the protection of many
other constitutional rights,
"courts must draw every inference against supposing that the defendant
wishes to waive the right to counsel."
(People v. Marshall (1997) 15
Cal.4th 1, 23 (Marshall).) When a defendant voluntarily and
intelligently makes a timely, unequivocal assertion of the right to proceed pro
se, however, the court must honor that request regardless of how unwise the
decision may seem. (People v. Windham (1977) 19 Cal.3d 121, 127-128 (>Windham).)

The
requirement that a Faretta motion be
timely is meant to prevent a defendant from unjustifiably delaying trial or
obstructing the orderly administration of justice, not to limit the defendant's
constitutional right to
self-representation. (>Windham, supra, 19 Cal.3d at p. 128, fn.
5.) For that reason, courts have
generally found Faretta motions to be
timely when made before the start of trial and without an accompanying request
for a continuance. (People v. Nicholson (1994) 24 Cal.App.4th 584, 593 (>Nicholson) [finding only two reported
decisions denying Faretta motions as
untimely when unaccompanied by requests for continuances and noting that both
decisions were reversed].)

The
requirement that a Faretta motion be
unequivocal "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. Williams (2003) 110 Cal.App.4th 1577, 1586 quoting Marshall, supra, 15 Cal.4th at p. 22.) To determine whether a request was unequivocal,
a reviewing court should examine a defendant's words and conduct to decide
whether that defendant truly desired to give up counsel and represent himself
or herself. (Marshall, supra, at pp. 25-26.)
"Equivocation of the right of self-representation may occur where
the defendant tries to manipulate the proceedings by switching between requests
for counsel and for self-representation, or where such actions are the product
of whim or frustration." (>People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1002 (Lewis).) A >Faretta motion made "in passing
anger or frustration" or "to frustrate the orderly administration of
justice" is not unequivocal and may be denied. (Marshall,
supra, at p. 23.) A >Faretta motion made immediately
following an unsuccessful Marsden
motion may be seen as equivocal if the circumstances show the defendant's true
desire was actually different representation and not self-representation. (See People
v. Valdez (2004) 32 Cal.4th 73, 99 [defendant's single reference to right
of self-representation, made immediately following denial of >Marsden motion, supports conclusion that
defendant did not make an unequivocal Faretta
motion]; People v. Scott (2001) 91
Cal.App.4th 1197, 1203-1206 [request was equivocal where defendant made clear
he did not want to be represented by his current counsel and was requesting
self-representation because the court would not replace his attorney with a
different public defender].)

To
determine whether the defendant invoked the right to self-representation, we review
the entire record, including facts following the Faretta ruling, de novo.
Even if the trial court denied the request for an improper reason, if
the record as a whole establishes the request would properly be denied on other
grounds we will nonetheless affirm the judgment. (People
v. Dent (2003) 30 Cal.4th 213, 218.)

The court's stated grounds for denying Evans's >Faretta request were that it was
"too late" and made for the purpose of "gaming the
system." If by stating the request
was "too late" the court meant that it was "untimely," that
basis for rejecting the request was improper.
Evans did not indicate that he would require a continuance if his
request was granted, nor is there any other sign that the request was made for
the purpose of delay. The California
Supreme Court in Windham, supra, 19
Cal.3d 121, made clear that the requirement of a timely request should not
limit a defendant's right to self-representation where it does not delay a
trial or obstruct justice, and the Nicholson
court emphasized that a Faretta
request unaccompanied by a continuance request should be accepted. (Nicholson,
supra, 24 Cal.App.4th 584 at p. 593.)
Here, the record does not show any delay would have resulted had Evans
been permitted to represent himself, so we conclude that his request was not
untimely.

Viewing Evans's request in light of his actions and the
court's rulings, rejection of his motion on the basis that Evans was attempting
to manipulate the system makes sense. In
the preceding months, Evans had difficulties with attorneys appointed for him
from the Public Defender's Office and the APD's office. After successfully dismissing the attorney
from the Public Defender's Office through a Marsden
hearing, Evans twice brought unsuccessful Marsden
motions against the attorney from the APD before requesting permission to
represent himself. Eight days later,
Evans changed his mind, requesting an attorney be appointed for him. The next week, when Evans was appointed an
attorney from the APD rather than from the OAC, he changed his mind again and
requested to proceed pro se.

Evans's actions indicate that he was frustrated with his
counsel and the court and that he was not unequivocal in his request to
represent himself. Rather, as the court
implied by stating that Evans did not have the right to choose his
court-appointed representation, the record strongly suggests that Evans did not
want to represent himself, he wanted the court to appoint counsel from the
OAC. Since the California Supreme Court
indicated in Lewis, supra, 39 Cal.4th
970, that switching between requests for counsel and for self-representation
could be a sign of equivocation and that a request made out of frustration
could be equivocal, we conclude the trial court was correct in finding that Evans's
renewed request for self-representation, made immediately after being denied
the appointed attorney he wanted, was not unequivocal. This interpretation of Evans's actions is
strengthened by the fact that he did not renew his Faretta motion at a later date or otherwise show dissatisfaction
with his appointed attorney despite his proclivity to do so with his previously
appointed attorneys.

Examined as a whole, Evans's
statements and actions did not represent a sincere invocation of the right to
self-representation. Rather, they were
made out of frustration and in an attempt to "game the system" to
secure appointed counsel of his choice.
Accordingly, we conclude that the Faretta
request was not unequivocal and was properly denied.

DISPOSITION

The judgment is affirmed.





HUFFMAN,
Acting P. J.



WE CONCUR:







McINTYRE, J.





O'ROURKE, J.