P. v. Gomez
Filed 3/1/12 P. v. Gomez CA2/3
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
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE ABEL GOMEZ,
Defendant and Appellant.
B225356
(Los Angeles
County
Super. Ct.
No. BA357198)
APPEAL from
a judgment of the Superior Court
of
County, John Fisher, Judge.
Affirmed.
California
Appellate Project and Suzan E. Hier, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lawrence M. Daniels and Colleen M. Tiedemann, Deputy Attorneys General, for
Plaintiff and Respondent.
Defendant and appellant Jose Abel Gomez appeals from the judgment entered
following his plea of no contest to four counts of committing a lewd act upon a
child (Pen. Code, § 288, subds. (a), (c)(1)). Pursuant to a
sentenced to five years in prison. He
contends the trial court violated his Sixth
Amendment rights by denying his requests to represent himself. We affirm.
PROCEDURAL BACKGROUND
1.
Charges, plea, and appeal.
An information filed on November
19, 2009, charged Gomez with one count of continuous sexual abuse of a child
under the age of 14 years (§ 288.5, subd. (a)) and seven counts of
committing a lewd act upon a child (§ 288, subds. (a), (c)(1)).
2010,
pursuant to a plea agreement, Gomez pleaded no contest to four counts of
committing a lewd act, and the remaining counts were dismissed. The trial court sentenced Gomez to five years
in prison. It imposed a restitution
fine, a suspended parole restitution fine, court security assessments, criminal
conviction assessments, and a sex offender fine.
As discussed in more detail post, between July 2009 and May 28, 2010 Gomez made five
purported Faretta requests
things, that the trial court erred by denying his Faretta motions. The trial
court granted a certificate of probable cause.
2.
below.
On July 9, 2009, prior to the
held a Marsden hearing after Gomez’s
counsel informed the court that Gomez so desired. Gomez complained that his attorney had waived
time for the preliminary hearing contrary to his wishes. He opined that his attorney was not acting
“in the best interest for my case to help me.”
He also complained that he did not like the way in which counsel
interacted with him. The trial court observed
that it had found good cause for a continuance of the preliminary hearing and
that counsel was working diligently on Gomez’s case. After discussing the issues with Gomez and
counsel, the trial court denied the motion.
On September 21, 2009, the trial court entertained a
second Marsden motion. Among other
things, Gomez complained that he did not believe counsel was acting in his best
interests; the case was not moving forward at a suitable pace; and counsel had
not provided him with transcripts of all court proceedings, to which he
believed he was entitled. The trial
court explained that transcripts were not available without justification,
which Gomez had not provided. After
discussing the matters raised with counsel, the court denied the motion. The court advised Gomez that he had the right
to retain a private lawyer. Gomez said
he would do so.
On October 7, 2010, the trial court heard a third
if I get a state-[ap]pointed lawyer. Since
the first day we started we’ve been in disagreement with everything. We always have arguments over the video
conferences every time we meet there’s always something we’re in disagreement
with. And I know he’s not in my best
interest in my case . . . .” After
discussing the issues raised with counsel and Gomez, the trial court opined
that counsel’s investigation of the case and strategy sounded “more than
reasonable.” The court observed that
Gomez did not “have to like your lawyer but you should listen to him.” It then denied the motion. Gomez then stated, “Thank you. Sir, could I say one thing I want to go pro per. I want to relieve him of his duties.” The court responded, “I understand that
you’re upset. This is the second time you’ve
made this motion.” Gomez interjected,
“Not for pro per.” The court continued,
“And just because of the fact that you’re upset is not reason enough to allow
you to represent yourself. I’m finding
that because of your emotional state and because of the fact that you don’t
like my ruling you’re now mak[ing] this motion, it’s not good enough cause to
represent yourself [and] your motion to represent yourself is denied.”
Subsequent to the preliminary hearing, the court held
another Marsden hearing on March 16,
2010. Gomez stated, “I tried to get rid
of [counsel] twice already. I don’t know
if you’re aware of that. I did two
everything I ask him or we talk about, we argue [about] everything. We never come to an agreement. [¶]
And there’s a conflict of interest, Your Honor, between me and [counsel]
and I no longer recognize him as my attorney.”
When the court queried what Gomez and counsel disagreed about, Gomez
complained that at his last video conference with counsel, the video screen had
gone blank in the middle of the conference.
Gomez complained that counsel was “[p]laying games like that.” Counsel explained that he had accidentally
pushed the wrong button on the video system.
Gomez stated, “If he doesn’t take my life serious then I don’t want this
guy defending me. I no longer recognize
him as my attorney.” Gomez did not
request self-representation. After
addressing the issues raised with counsel and Gomez, the trial court denied the
motion.
On May 28, 2010, day “zero of 12,” the court heard
another Marsden motion. Gomez gave the court a letter that apparently
detailed his concerns, which the court sealed.
The following discussion transpired:
“The Court: . .
. Anything further verbally you’d like to say
“[Gomez]:
Yes. That if you don’t grant me
this I’m going into this case and it’s ready to go to trial. I understand that. [¶]
But I really would like somebody else to come in and evaluate my case,
another lawyer that I know will have a better outlook than [existing counsel]
has. And I know he can help me and
maybe––
“The Court: Do
you have another lawyer in mind that you’re going to hire
“[Gomez]: No,
sir. I would like the court to appoint
me one.
“The Court: I
see.
“[Gomez]: If possible,
Your Honor, please. He would look at it
in a different
way . . . that would be more helpful to me than what [counsel] has been. [¶]
And he won’t push me to be taking deals, you know, forcing me to taking
deals and misleading me . . . . [¶] And
if you don’t grant it, Your Honor, I want to exercise my Faretta rights and go pro per and take this case and this deal that
I’m about to take on my own, not with [current] counsel. [¶]
And I’d also like to ask the court that you––if you can please give me
paperwork so I can appeal this case because I know I have grounds to appeal for
due process being violated and also for my pro per status being violated in
Judge Mavis’s court as pro per the second time and it was denied. So that’s another grounds. [¶]
And I have other grounds that––that I know I can appeal this case, Your
Honor, after I take the deal, sir.
“The Court:
Okay.
“[Gomez]: So if
you please could arrange that for me”
The
trial court denied the Marsden motion. It also denied Gomez’s self-representation
request “as untimely and not unequivocal.”
The court and parties then turned to
the question of a plea agreement. The
prosecutor indicated that the “last and final offer” was five years, which had
been substantially reduced from earlier offers.
The court asked Gomez, “Do you want that or not” Gomez replied affirmatively but indicated he
wished “to appeal it.” The court agreed
to issue a certificate of probable cause.
Gomez then pleaded no contest as detailed ante.
DISCUSSION
The
trial court did not err by denying Gomez’s self-representation requests.
A criminal defendant has a constitutional right to counsel at
all critical stages of a criminal prosecution.
(People v. Doolin (2009) 45
Cal.4th 390, 453; People v. Tena (2007)
156 Cal.App.4th 598, 604.) The right to
counsel may be waived by a criminal defendant who elects to represent himself
at trial. (Faretta v. California, supra, 422 U.S. at pp. 807, 834-835;
453.) “The right of self-representation
is absolute, but only if a request to do so is knowingly and voluntarily made
and if asserted a reasonable time before trial begins. Otherwise, requests for self-representation
are addressed to the trial court’s sound discretion.” (People
v. Doolin, supra, at p. 453; People
v. Lynch (2010) 50 Cal.4th 693, 721-723; People v. Windham (1977) 19 Cal.3d 121, 128-129;
request for self-representation must be unequivocal.” (People
v. Doolin, supra, at
p. 453; People v. Marshall (1997) 15
Cal.4th 1, 22-23.) A motion 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.)
Courts “must indulge every reasonable inference against waiver of the
right to counsel.” (Id. at p. 20;
On review, we independently examine
the entire record to determine whether a defendant knowingly and intelligently
invoked his or her right to self-representation. (People
v. Doolin, supra, 45 Cal.4th at
p. 453; People v. Stanley (2006) 39
Cal.4th 913, 932.) The erroneous denial
of a timely, unequivocal Faretta motion
made by a competent defendant is constitutional error and requires reversal per
se. (People
v. Nicholson (1994) 24 Cal.App.4th 584, 594.)
a. Neither
self-representation request was unequivocal.
Both Gomez’s Faretta requests were properly denied because, considering the
totality of the circumstances, neither was unequivocal. “ ‘ “ ‘[T]he right of self-representation is
waived unless defendants articulately and unmistakably demand to proceed
v. Stanley, supra, 39 Cal.4th at p. 932.)
When determining whether a
must determine ‘whether the defendant truly desires to represent himself or
herself.’ [Citation.] Thus, ‘an insincere request or one
made under the cloud of emotion may be denied.’ [Citation.]”
(People v. Tena, supra, 156
Cal.App.4th at p. 607; People v.
Marshall, supra, 15 Cal.4th at pp. 21, 23.) “Equivocation of the
where the defendant tries to manipulate the proceedings by switching between
requests for counsel and for self-representation[.]” (People
v. Lewis and Oliver (2006) 39 Cal.4th 970, 1002.) “[T]he court’s duty goes beyond determining
that some of [the] defendant’s words amount to a motion for self-representation. The court should evaluate all of a
defendant’s words and conduct to decide whether he or she truly wishes to give
up the right to counsel and represent himself or herself and unequivocally has
made that clear.” (People v. Marshall, supra, at pp. 25-26; People v. Tena, supra, at p. 607.)
“Applying these principles, courts have concluded that under some
circumstances, remarks facially resembling requests for self-representation
were equivocal, insincere, or the transitory product of emotion.” (People
v. Tena, supra, at p. 607.)
People
v. Scott (2001) 91 Cal.App.4th 1197 and People
v. Tena, supra, 156 Cal.App.4th 598, are instructive. In Scott,
the defendant made a Marsden motion
before trial. When it was denied, he
stated, “ ‘If that’s the case, I hereby move the court to let me go pro
se.’ ” (People v. Scott, supra,
defendant was sure he wished to represent himself, the defendant replied,
“ ‘Yes. I do, judge. I don’t want [appointed defense counsel] to
represent me.’ ” (
a new appointed attorney, he would represent himself. He reiterated that he did not want his
currently appointed attorney representing him.
(Id. at p. 1205.) Scott concluded
that these remarks, viewed in context, were too equivocal to constitute a
frustration at the denial of the Marsden motion. (Id. at
p. 1205.)
In People v. Tena, supra, 156 Cal.App.4th 598, the defendant
complained that his court-appointed attorney had failed to subpoena witnesses
for the preliminary hearing, and asked to “ ‘go pro per.’ ” (Id. at
p. 605.) The court denied his request
without further explanation.
Approximately one month later the trial court conducted a
defendant stated he wished to “fire” his court appointed attorney and hire a
private attorney to represent him. (
defendant could hire a private attorney only after the preliminary hearing
transpired, the defendant became agitated.
The defendant then requested self-representation, a request the court
denied. (Id. at p. 606.) The
defendant did not renew his request to proceed in propria persona
thereafter. (Ibid.) Tena concluded the defendant’s self-representation requests were
equivocal. (Id. at pp. 607-609.) The
defendant did not make a self-representation request at his next court appearance. (Id. at
p. 609; see also People v. Marshall,
supra, 15 Cal.4th at pp. 15-19, 25, 27 [Faretta
request was not sincere where the defendant represented himself during
certain pretrial proceedings, then requested and received a court-appointed
attorney, and subsequently sought self-representation; request was an emotional
response to his attorney’s conduct and an insincere ploy to disrupt the
proceedings]; People v. Danks (2004)
32 Cal.4th 269, 295-297 [defendant’s statements that he wanted to defend himself
were “born primarily of frustration” about counsel’s requests for continuances
and a desire to avoid further psychiatric analysis].)
Much as in the foregoing cases,
Gomez’s requests came only upon the heels of the court’s denial of his
v. Tena, supra, 156 Cal.App.4th at p. 609 [where Faretta requests were made only after denial of
stem solely from defendant’s frustrated desire for representation by private
counsel, denial was proper].) His
comments to the court readily revealed that his real goal was not
self-representation, but appointment of a different attorney. His request, in both instances, was an emotional
response made out of frustration at the denial of his Marsden requests. (See
impulsive reactions to his frustrated attempts to secure an attorney” who would
conduct the defense as he wished]; People
v. Scott, supra, 91 Cal.App.4th at p. 1206; People v. Valdez (2004) 32 Cal.4th 73, 98-99.) Gomez also indicated to the court at the
September 21, 2009 hearing that he intended to hire private counsel,
further suggesting his desire was not genuinely for
attorney. His repeated switching between
requests for self-representation and a new attorney indicates, on the facts
here, that the Faretta requests were
equivocal. (See People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1002.) We recognize, of course, that the mere fact a
defendant requests self-representation after a Marsden denial does not demonstrate the request is necessarily
equivocal. (See People v. Michaels (2002) 28 Cal.4th 486, 524 [“Defendant confuses
an ‘equivocal’ request with a ‘conditional’ request. There is nothing equivocal in a request that
counsel be removed and, if not removed, that the defendant wants to represent
himself”].) Reviewing the record in its
totality, however, we conclude Gomez’s requests were manifestations of his
frustration and anger, not genuine, unequivocal expressions of a desire for
self-representation.
Contrary to Gomez’s argument, the
trial court’s finding that he made his first Faretta request out of frustration and anger was not tantamount to
imposition of a “good cause” requirement for the grant of the motion. It is clear that the court simply concluded,
as a factual matter, that Gomez’s request was not born of a sincere desire to
represent himself, but was merely an impulsive comment made due to his anger
and frustration about the court’s denial of his Marsden motion. As noted, a
court should draw every inference against waiver of the
of passing anger or frustration is properly denied. (People
v. Stanley, supra, 39 Cal.4th at p. 932; People v. Marshall, supra, 15 Cal.4th at pp. 22-23.)
b.
was untimely and properly denied; any error was harmless.
In addition, Gomez’s second
when a motion is timely: “[T]he high
court has never delineated when a motion may be denied as untimely. Nor has [the California Supreme Court] fixed
any definitive time before trial at which a motion for self-representation is
considered untimely, or articulated factors a trial court may consider in
determining whether a self-representation motion was filed a reasonable time
before trial.” (People v. Lynch, supra, 50 Cal.4th at p. 722.) It has repeatedly been held that
are untimely. (People v Lynch, supra, at pp. 722-723, and authorities cited
therein.) Conversely, motions made
months before trial have been considered timely. (Id. at
p. 723.) “[O]utside these two extreme
time periods, pertinent considerations may extend beyond a mere counting of the
days between the motion and the scheduled trial date.” (Ibid.) Thus, “timeliness 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. An analysis based on these considerations is
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.’ ”
(People v. Lynch, supra, at p.
724.)
Here, trial was scheduled to begin
within the 12 days following Gomez’s second Faretta
request. The parties agreed to
return to court the following week on day “four or six of [ten].” The prosecutor had advised the court that the
People were ready to proceed; defense counsel indicated he had subpoenaed
witnesses. While the question is close,
we conclude the trial court did not err by concluding Gomez’s request was
untimely. (See People v. Clark (1992) 3 Cal.4th 41, 99-100 [Faretta request untimely where the case had been continued
day-to-day in the expectation motions would be concluded and jury selection
would begin]; People v. Burton (1989)
48 Cal.3d 843, 852-853 [Faretta motion
was untimely where it was made after the case had been called for trial,
counsel had answered ready, and case had been transferred for pretrial motions
and jury selection].)
A defendant has the burden of
justifying an untimely motion, which is
addressed to the sound discretion of the trial court. (People
v. Marshall (1996) 13 Cal.4th
799, 827; People v. Horton (1995) 11
Cal.4th 1068, 1110; People v. Lynch,
supra, 50 Cal.4th at
p. 722; People v. Windham, supra, 19
Cal.3d at pp. 127-128.) In
assessing an untimely self-representation motion, the trial court considers
such factors as the quality of counsel’s representation, 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 the motion.
(People v. Lynch, supra, at p. 722,
fn. 10; People v. Windham, supra, at
p. 128.) Here the Windham factors, although not expressly discussed by the trial
court, favored denial of the motion.
(See People v. Windham, supra, at
p. 129, fn. 6 [there is no requirement that a trial court must, in
all cases, state the reasons underlying its denial of a self-representation
motion]; People v. Bradford (2010)
187 Cal.App.4th 1345, 1354-1355; People
v. Scott, supra, 91 Cal.App.4th at p. 1206 [although trial court may
not have explicitly considered each of the Windham
factors, the record was sufficient to show an implicit consideration of the
relevant factors]; People v. Perez (1992)
4 Cal.App.4th 893, 904.)
Gomez clearly had a proclivity to
attempt to substitute counsel, as demonstrated by his repeated
v. Scott, supra, 91 Cal.App.4th at p. 1206.) His complaints were either petty or involved
trial tactics, an insufficient basis upon which to grant an untimely
counsel was adequately representing Gomez.
Contrary to Gomez’s argument that he was “stuck with an attorney who was
not ‘representing’ him as he desired,” the record suggests counsel was doing a
superior job. Further, the second
period immediately preceding trial.
Although Gomez did not move for a continuance, the trial was expected to
involve expert testimony, medical evidence, and DNA evidence, among other things. Had the case proceeded to trial, it seems
inevitable that Gomez would have required more time to prepare, resulting in a
delay of trial. If Gomez intended to
accept the plea offer, the reasons for his Faretta
request were not compelling. Gomez
offered no reason for his request except that he did not agree with his
attorney. He indicated he intended to
accept the People’s plea offer, the same action he would have taken if
represented by counsel. Under these
circumstances, we cannot say the denial of the second Faretta request was an abuse of discretion.
Additionally, the denial of an untimely Faretta request is not automatically reversible, but is
reviewed for harmless error under the Watson
standard. (People v. Rivers (1993) 20 Cal.App.4th 1040, 1050;
836.) Here, Gomez informed the trial
court that he intended to accept the People’s plea offer “on [his] own.” Given that he accepted the plea offer while represented
by counsel––the same action he stated he wished to take if representing
himself––the record reveals no possible prejudice flowing from the trial
court’s denial of the May 28, 2010 Faretta
request.
DISPOSITION
The
judgment is affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS
ALDRICH,
J.
We concur:
CROSKEY,
Acting P. J.
KITCHING,
J.
name="_ftn1" title="">[1] Because the facts relating to the
charged crimes are not relevant to the issues presented on appeal, we do not
recite them here. (People v. White (1997) 55 Cal.App.4th 914, 916, fn. 2.)
name="_ftn2" title="">[2]
