P. v. Nichols
Filed
6/25/13 P. v. Nichols CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ERIC LAVELLE NICHOLS,
Defendant and
Appellant.
F063374
(Super.
Ct. No. BF132222A)
APPEAL from
a judgment of the Superior Court of
Carol A.
Navone, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J.
Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant
appeals his conviction of evading a police
officer, contending he was improperly denied a continuance to prepare for
trial after his motion to represent himself was granted. He argues the failure to grant a continuance
violated his right to due process of law.
We disagree and affirm.
At about
11:30 p.m., a California Highway Patrol (CHP) officer in a marked patrol car
observed a black SUV speeding down a city street. He saw only one occupant in the SUV, and had
the impression it was a man. The officer
followed the SUV, which continued at high speed even after the officer turned
on the patrol vehicle’s red lights and siren.
The SUV went through the parking lot of an apartment complex, then back
out onto the street, where it ran a stop sign and a red traffic light. The officer lost sight of the vehicle for a
few seconds when it went around a corner; when he turned the same corner, he
spotted the disabled SUV where it had crashed into the curb and the wheel had
buckled under. The driver’s door was
open, but there was no one inside and the CHP officer saw no one in the
vicinity. Inside the SUV, the officer
found a cell phone displaying defendant’s first name and a digital camera
containing pictures of defendant and the SUV.
About the same time, residents in the area were on their front porch
when defendant came from the side of the house and seated himself on a chair on
the porch. The residents called the
police over and they arrested defendant.
Defendant was charged with one
felony count of evading a peace officer by driving in willful or wanton
disregard for the safety of persons or property, in violation of Vehicle Code
section 2800.2. Defendant pled not
guilty, and trial was set for August 9, 2010.
On the trial date, defendant indicated he intended to call as a witness
Lajena Bolton, who would take responsibility for driving the vehicle on the
night in issue. The court appointed
counsel to advise her and Bolton chose to invoke her Fifth Amendment right
against self-incrimination. While the
court was still hearing motions in limine, it granted a continuance because of
a dispute about production of recordings of phone calls defendant made to
Bolton while he was in jail, which defendant asserted contained exculpatory
information.
On September 23, 2010, the trial
court granted defendant’s motion for appointment of a new attorney to represent
him. (Marsden
title="">[1] motion.)
The trial was continued twice, and then trailed to March 21, 2011. On that date, the trial court denied defense
counsel’s motion to withdraw as counsel based on an asserted conflict of
interest. On March 23, 2011, defendant
made another Marsden motion, which
the trial court denied. On March 24,
2011, after defense counsel indicated he was withdrawing a motion in limine to
be permitted to present Bolton’s statements through the testimony of a defense
investigator because Bolton was unavailable as a witness, defendant asserted he
wished to make a motion to represent himself at trial. (Faretta
Defendant assured the court that he was ready to proceed with trial that
day. The trial court explained the
hazards of self-representation and warned that defendant would not be allowed
to change his mind and obtain a continuance to obtain an attorney in the middle
of trial.
Later, when the trial court asked
what witnesses defendant would present and explained they would need to be
ready when the prosecution rested, defendant protested that he “just got this
case today.†The court reminded
defendant he had said he was ready to go forward, and advised that he would not
be granted a continuance because he was unprepared. The People played some of the recordings of
defendant’s telephone conversations with Bolton for the jury. In the excerpts presented, defendant seemed
to be coaching Bolton to tell a fabricated story, first that “Felicia†had been
driving the vehicle that evaded police, with defendant as a passenger, and
later that Bolton herself had been driving.
At one point in the recordings, Bolton reported she had spoken with
defendant’s attorney and had told him what they had “been rehearsing.†Apparently, Bolton contacted the
investigating CHP officer and the deputy district attorney and admitted driving
the vehicle at the time it evaded the pursuing officer.
The court granted the People’s
motion to exclude as hearsay evidence of Bolton’s statements to the defense
investigator, in which she claimed she had been driving. Bolton did not appear for trial and did not
testify; defendant presented no defense evidence and was convicted. He appeals, contending the trial court
violated his constitutional right to due process by failing to grant him a
reasonable continuance to prepare his case for trial.
“The Sixth
and Fourteenth Amendments of our Constitution guarantee that a person brought
to trial in any state or federal court must be afforded the right to the
assistance of counsel before he can be validly convicted and punished by
imprisonment.†(Faretta, supra, 422 U.S. at p. 807.) A criminal defendant also has a right to
refuse such assistance and conduct his or her own defense, “providing he or she
knowingly and intelligently waives the right to counsel [citation] and ‘is able
and willing to abide by the rules of procedure and courtroom protocol.’ [Citation.]â€
(People v. Bradford (1997)
15 Cal.4th 1229, 1363-1364 (Bradford).) “Although a defendant need not himself have
the skill and experience of a lawyer in order competently and intelligently to
choose self-representation, he should be made aware of the dangers and
disadvantages of self-representation, so that the record will establish that
‘he knows what he is doing and his choice is made with eyes open.’ [Citation.]â€
(Faretta, supra, at
p. 835.)
In order to invoke the constitutional right of self-representation, the
defendant “must make an unequivocal assertion of that right within a reasonable
time prior to the commencement of trial.
[Citations.] When a motion for
self-representation is not made in a timely fashion prior to trial,
self-representation no longer is a matter of right but is subject to the trial
court’s discretion. [Citations.]†(Bradford,
supra, 15 Cal.4th at p. 1365.)
In exercising that discretion, the court should consider such factors as
“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.†(People
v. Windham (1977) 19 Cal.3d 121, 128 (Windham).)
Whether to grant a continuance of trial is a matter within the broad
discretion of the trial court. (
1037 (Jenkins).) It is within the trial court’s discretion to
deny a continuance when it reasonably believes the request for a continuance is
based on a desire to delay the proceedings for the defendant’s benefit. (Id.
at p. 1039.)
There is no violation of a defendant’s rights when his
trial and he is given the choice to proceed with counsel or to proceed without
counsel on condition he proceed immediately.
In People v. Clark (1992)
3 Cal.4th 41, the defendant was convicted of six counts of first degree murder
with special circumstances and was sentenced to death. While the court was hearing the final
pretrial motions, the defendant purported to discharge one of his two
attorneys. (Id. at p. 90.)
Subsequently, he made an oral Faretta
motion, which was denied as untimely. (Clark,
at pp. 91-92.) On the day set
for opening statements, the defendant renewed his Faretta motion, asking to represent himself with his second
attorney as co-counsel, but stating he was not ready for trial. (Clark,
at p. 92.) Because he was not
ready, the trial court denied the motion.
(Ibid.) Twice more in the next few days, the
defendant renewed his motion, but sought appointment of new co-counsel. (Id.
at p. 93.) The trial court stated
it would consider the Faretta motion,
but, if granted, the defendant would represent himself without the assistance
of counsel. (Clark, at p. 93.) The
defendant stated he “‘absolutely’†wanted to represent himself. (Ibid.) The trial court advised the defendant of the
rights, responsibilities, and risks involved in self-representation, then found
a knowing and intelligent waiver and permitted the defendant to represent
himself; it kept his appointed attorneys as standby counsel. (Ibid.) Later, due to his disruptive conduct during
trial, the trial court revoked the defendant’s in propria persona status and
reappointed counsel. (
On appeal, the defendant challenged the granting of his
not be heard to argue on appeal that his own motion should not have been
granted†(Clark, supra, 3 Cal.4th at
pp. 109, 110), the court rejected the defendant’s contention “that the
trial court improperly conditioned its grant of his Faretta motion on
waiver of any necessary continuance.†(
The court distinguished earlier cases indicating a defendant whose
motion for self-representation is granted should be given a reasonable time to
prepare.
“Although a necessary continuance must be granted if a
motion for self-representation is granted, it is also established that a
midtrial Faretta motion may be denied on the ground that delay or a
continuance would be required.
[Citations.] Unlike the trial
court in Bigelow, supra, 37 Cal.3d
731, this trial court made clear its intent to deny the Faretta motion
as untimely if a continuance would be necessary. It had in fact denied other Faretta
motions on this basis. The Faretta
motion was ultimately granted only when defendant expressly represented he was
able to proceed without a continuance.â€
(Clark, supra, 3 Cal.4th at
p. 110.)
In
after being convicted of first degree murder and other offenses. On appeal, he contended his request for a
continuance during the penalty phase should have been granted after he was
permitted to represent himself with the help of advisory counsel. (Jenkins,
supra, 22 Cal.4th at pp. 1037-1038.)
When he sought self-representation, the defendant “angrily rejected
counsel’s claim that he was unprepared.â€
(Id. at p. 1038.) The trial court warned the defendant a
request for a continuance would constitute grounds for denying
self-representation, and the “defendant accepted pro se status on the
understanding that no additional time would be granted.†(Ibid.) The trial court “was within its discretion in
denying the requested continuances on the ground the court reasonably believed
the requests were based upon a desire to delay the proceedings in an effort to
affect the composition of the jury or to cause a mistrial.†(Ibid.)
The court
rejected the defendant’s contention that, once he was permitted to represent
himself, the denial of a continuance to prepare for trial deprived him of due
process. The court stated:
“We observed in
if a motion for self-representation is granted.’ [Citation.]
On the other hand, in the Clark case we also stated that ‘it also
is established that a midtrial Faretta motion may be denied on the
ground that delay or a continuance would be required,’ and sanctioned the trial
court’s decision to condition the granting of the right of self-representation
on defendant’s waiver of a continuance.… [¶] … [¶]
“No denial of due process
appears in the court’s refusal to grant defendant’s motions for continuance. ‘[I]t is not every denial of a request for
more time that violates due process even if the party fails to offer evidence
or is compelled to defend without counsel.’
[Citation.] Instead, ‘[t]he
answer must be found in the circumstances present in every case, particularly
in the reasons presented to the trial judge ....’ [Citation.]
Even in a capital case, if the defendant cannot show he or she has been
diligent in securing the attendance of witnesses, or that specific witnesses
exist who would present material evidence, ‘[g]iven the deference necessarily
due a state trial judge in regard to the denial or granting of continuances,’
the court’s ruling denying a continuance does not support a claim of error
under the federal Constitution.
[Citations.]†(
pp. 1039-1040.)
In People v. Valdez (2004) 32 Cal.4th 73 (Valdez), the defendant was convicted of murder and other offenses,
and was sentenced to death. Prior to
trial, he made two Marsden motions
and two Faretta motions, all of which
were denied. On appeal, he contended the
denial of his Faretta motions
violated his constitutional right to represent himself. The defendant’s second Faretta motion was made immediately prior to jury selection. (Valdez,
supra, 32 Cal.4th at p. 101.)
The defendant expressed his belief that he could do a better job if he
did some investigation and stated he would like to “go pro per.†(Ibid.) He told the court he would not be prepared to
go to trial that day if his request were granted. (Ibid.) The trial court indicated it would not grant
the request, because it was made to delay the trial; however, it told the
defendant he could proceed in propria persona that day, with standby counsel. (Id.
at pp. 101-102.) On appeal, the
defendant argued the motion was timely because it was made at the first
available opportunity. The court
concluded it was untimely because it was made moments before jury selection was
set to begin and there were earlier opportunities to make it. (Id.
at p. 102.) The unconditional right
of self-representation is required to be invoked within a reasonable time prior
to trial, in order to prevent misuse of the motion to unjustifiably delay the
trial or obstruct the orderly administration of justice. (Ibid.) “‘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.]†(
When a Faretta motion is
untimely, self-representation is not a matter of right, but is subject to the
trial court’s discretion. (
in exercising its discretion. The court
concluded:
“The trial court found the Faretta
motion was not made in good faith, but made ‘merely for the purposes of
obtaining a continuance’ and denied the motion.
It is clear from the record that the trial court made an appropriate
inquiry, and based on that inquiry denied defendant’s Faretta
motion. But in response to defendant’s
insistence that he had a constitutional right to proceed in propria persona,
the court indicated that it would allow defendant to represent himself if he
was able to proceed with the trial without delay. It did not, however, actually grant the Faretta
motion.
“‘Although a necessary continuance
must be granted if a motion for self-representation is granted, it is also
established that a midtrial Faretta motion may be denied on the ground
that delay or a continuance would be required.’
[Citation.] Thus, the court acted
within its discretion in concluding that defendant could represent himself only
if he was ready to proceed to trial without delay.†(Valdez,
supra, 32 Cal.4th at p. 103.)
Thus, in
recent cases,
title="">[3] the California Supreme Court has found it is
not a violation of due process to grant a motion for self-representation made
during or on the eve of trial without granting defendant a continuance to
prepare for trial. The trial court may
deny such a motion if it would require a continuance, or it may grant the
motion only if the defendant represents he is ready to proceed to trial as
scheduled.
Defendant made a successful
resulted in several months’ delay of the trial while the new attorney
prepared. On March 10, 2011, 11 days
before trial was scheduled to begin, defendant’s second attorney filed a motion
to withdraw as counsel, citing a conflict of interest. That motion was heard on March 21, 2011, the
day set for trial; defendant assured the court then that he still wanted his
attorney to represent him, in spite of the conflict cited by counsel as the
basis for the motion. The motion to
withdraw was denied. Two days later,
defendant requested a Marsden
hearing; the hearing was held and the motion was denied. The trial court considered it a rehash of
defense counsel’s motion to withdraw.
The next day, when the court began hearing the motions in limine,
defendant made a Faretta motion. After initially stating he wanted to make a
not doing what he asked him to do, defendant stated he was claiming ineffective
assistance of counsel. The trial court
stated that would be a Marsden
motion, and reminded defendant his Marsden
motion had been heard and denied the previous day. The court proceeded to warn defendant of the
dangers of self-representation and to try to demonstrate to him that he did not
understand the legal procedures and concepts necessary to conduct his own
defense. It advised defendant that the
evidence he wished to put on was unlikely to be allowed in.
Defendant complained that his attorney had told him the previous day that
the attorney would not put on any witnesses, would not present defendant’s
evidence, and believed defendant was guilty.
Defendant also complained that his attorney had withdrawn defendant’s
motion in limine No. 20, which sought admission of Bolton’s statements to a
defense investigator, because Bolton was unavailable as a witness, having
indicated she would invoke her Fifth Amendment right against
self-incrimination. Further, defendant
stated he was not comfortable in the courtroom where the judge had heard his
attorney’s motion to withdraw and his own Marsden
motion and had denied both; he asserted he felt he would not be treated fairly
and he had asked his attorney to find another courtroom.
Defendant assured the court he was
prepared to defend himself that day, but the trial court expressed doubt. The trial court gave defendant a
still wished to represent himself. When
defendant returned the form, he had answered “no†to this question: “You have stated to the Court that you do not
wish to be represented by an attorney, even though one would be provided to you
at no expense if you cannot afford one, and that you wish to represent
yourself. In making this decision to act
as your own attorney, you have considered and understand the following.…†Defendant indicated he understood the
following 15 items, but he did not agree that he did not want an attorney to
represent him. He asserted he did want
an attorney, just not the one currently appointed to him. The trial court again reminded defendant his
stated it would not be relitigated. It
then gave defendant a choice:
“THE COURT: …
Now, do you want to proceed with him as your lawyer or do you want to represent
yourself? [¶] If you do want to represent yourself, you
need to tell me that you understand all those 1 through 15, and I’ll get [the
attorney] off the case, and you can represent yourself. I’ll get a [jury] panel over here and we can
get started. [¶] If you don’t want to represent yourself, you
tell me. We’ll leave [the
attorney]. We’ll get a panel over here,
and we’ll get started. Either way, I
need a decision.â€
Defendant
stated he wished to represent himself.
He asked further questions about filling out the waiver form, and the
court expressed its opinion defendant was “fooling around and messing with the
Court and … wasting the Court’s time.â€
The trial court relieved defendant’s attorney. After the attorney turned over his materials
to defendant, the trial court proceeded to hear the motions in limine.
In
subsequent discussions with the trial court, defendant indicated he wished to
play some of the CD recordings of his jailhouse telephone conversations for the
jury, because he believed they contained exculpatory information. He did not have the CDs or transcripts of
them in his possession, however, and he had not yet listened to them.
represent himself that the CDs were part of the defense he wished to present;
he also knew he had not listened to the CDs.
Nonetheless he assured the trial court he was ready to proceed with
trial that day, and chose self-representation knowing the trial would not be
delayed if he was unprepared.
The cases
indicate a trial court has discretion to grant or deny a motion for
self-representation that is untimely or made for purposes of delay. Defendant’s motion was made three days after
the date set for trial, while the court was addressing motions in limine. Defendant argues his motion was not untimely
because he made it at the first opportunity after he learned his attorney would
not present the evidence he wished to present in his defense. Defendant, however, gave multiple reasons for
not wishing to have his attorney represent him.
His motion to have new counsel appointed had been heard and denied the
previous day. Defendant vacillated
between asserting he wished to represent himself and stating he wished to be
represented by counsel, but not the counsel assigned to him. Defendant seemed more interested in
relitigating his unsuccessful Marsden
motion and trying to maneuver the trial court into appointing a different
attorney, than in exercising his right to represent himself at trial. The circumstances justified the trial court’s
conclusion defendant was attempting to obstruct and delay trial.
Defendant
also contends the trial court did not expressly condition the grant of the
without a continuance. The choice the
trial court gave defendant was clear, however:
He could represent himself and proceed to trial that day, or he could
continue to be represented by his appointed attorney and proceed to trial that
day. This was the same choice given to
the defendants in Clark,
trial court intended to proceed with the trial that day regardless of
defendant’s choice. Defendant stated
multiple times that he was prepared and ready to begin trial that day. He chose to represent himself. Defendant cannot now complain because he
regrets the choice he made.
The trial
court did not abuse its discretion when it granted defendant’s motion for
self-representation only on condition he proceed without delay. After granting the motion based on
defendant’s representation he was ready for trial and that he wished to
represent himself and go forward that day, the trial court did not abuse its
discretion by requiring defendant to proceed without a continuance. Under the circumstances, proceeding without
granting defendant a continuance was not a violation of
The judgment is affirmed.
_____________________
HILL,
P. J.
WE CONCUR:
_____________________
WISEMAN, J.
_____________________
LEVY, J.
name="_ftn1" title="">[1] People
v. Marsden (1970) 2 Cal.3d 118 (Marsden).
name="_ftn2" title="">[2] Faretta
v. California (1975) 422 U.S. 806 (Faretta).
