Filed 7/28/26 P. v. Orduno CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B340740
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA486690
v.
SANTOS ORDUNO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark Hanasono, Judge. Affirmed.
Judith Kahn, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Wyatt E. Bloomfield and Chelsea
Zaragoza, Deputy Attorneys General, for Plaintiff and
Respondent.
Appellant Santos Orduno retained private counsel to
defend him against murder, attempted murder, and burglary
charges. Over two years later, immediately before jury selection
and the beginning of trial, Orduno requested to discharge private
counsel and represent himself. The following day, Orduno
clarified that he wished to discharge his private counsel and be
defended by court-appointed counsel. The trial court denied
these requests as untimely, and the jury convicted Orduno of the
charged offenses. On appeal, Orduno argues the trial court erred
by denying his requests. We affirm.
PROCEDURAL BACKGROUND
In February 2023, the jury convicted Orduno of murder
(Pen. Code, § 187, subd. (a))1, attempted murder (§§ 187, subd.
(a), 664), and first degree burglary. The jury found not true
allegations that Orduno personally and intentionally discharged
a firearm causing great bodily injury in the commission of the
murder and attempted murder. (§ 12022.53, subd. (d).) The trial
court sentenced Orduno to an indeterminate term of 32 years to
life plus a determinate term of 2 years in state prison. Orduno
timely appealed.
FACTUAL BACKGROUND
Prosecution case
Michigan Criminal Force and Primera Flats are rival gangs
whose territories border each other. Orduno had ties to the
Primera Flats gang. Three of his brothers are Primera Flats
gang members, and he lived within the gang’s territory a couple
blocks from where the shooting that gave rise to this case
occurred. In 2019, he acted as a lookout while another individual
1 Future statutory references are to the Penal Code.
2
tagged “Primera Flats.” Orduno’s gang moniker was “Roz,” and
that moniker had been tagged near his home.
Around 11:00 p.m. on April 15, 2020, Leopoldo Monarrez
and Jesus “Jesse” Martinez, Michigan Criminal Force gang
members, were barbequing at a Boyle Heights apartment. Two
men wearing face masks walked toward Monarrez and Martinez.
One of the men was armed with a firearm, and he started
shooting. Monarrez was shot once in the buttocks, and Martinez
was shot through his torso and out his back. After receiving
medical treatment, Martinez died from the gunshot wound to his
torso.
Two Los Angeles Police Department officers were driving
nearby and heard the gunshots. As the officers approached the
intersection of the shooting, they saw two individuals wearing
face masks running in their direction, one of whom was holding a
handgun. The officers fired at the men, but the men kept
running. The officers also saw two other men on the ground who
appeared to have been shot. The officers could not positively
identify Orduno because he and the other suspect were wearing
facemasks.
After the shooting, Orduno broke into Elvis Hernandez’s
apartment while Hernandez was asleep. Orduno left his shoes
and hat and took Hernandez’s pants, jacket, wallet, and work
boots.
Officers immediately canvassed the area for video footage.
A homeowner shared video surveillance footage that depicted one
suspect jumping a wall next to the homeowner’s residence and
walking along the side of his property. A gang officer who had
interacted with Orduno a year prior saw a still photo of the
suspect in the video and believed it was Orduno.
3
During a search of the area, a K-9 dog located Orduno on
the roof of a parking structure. Once he was located, Orduno
jumped from the parking structure to a shipping container and
onto a roof. An officer talked to Orduno for about 30 to 35
minutes, then Orduno came down and was arrested around 3:00
a.m. Orduno had Hernandez’s identification cards and a “COVID
mask.”
Officers found a Springfield Armory semiautomatic
nine-millimeter Luger behind a folding table in the yard of the
home Orduno had jumped from. The firearm contained an empty
magazine. The DNA on the firearm and magazine produced
low-level samples, which were unsuitable for interpretation.
Near the area of the shooting, officers found 10 nine-millimeter
cartridge cases, a pair of black latex gloves, and three discharged
cartridge cases.2 The Springfield firearm had fired the 10
cartridge cases found at the crime scene. The black gloves had
gunshot residue on them.
When Hernandez woke up later that day, he noticed Nike
shoes, a black hat, and a light blue long-sleeved shirt that did not
belong to him or his roommate. He also noticed that his boots,
jacket, T-shirt, hat, pants, wallet, and gold necklace were
missing. Later that night, Hernandez saw a story on the news
involving a man who was wearing his jacket and pants. Orduno’s
DNA was found on the hat, shirt, and left shoe that he left in
Hernandez’s apartment, and gunshot residue was found on the
shoes he left.
2 These three discharged cases were from the officers’
firearms.
4
A few days after Orduno was arrested, he called his mother
while in custody. During the call, Orduno’s mother mentioned
potentially asking a detective to retrieve a surveillance video
from a laundromat across the street from the shooting. Orduno
instructed his mother not to do so. When his mother asked why,
Orduno answered, “you already know.” Orduno’s mother never
spoke to the detective about the video.
Defense case
Daniel Walters, a crisis intervention worker at the Gang
Reduction Youth Development, testified on Orduno’s behalf.
Walters met Orduno when he was 13 years old and enrolled him
in their program. Walters opined that Orduno is not a gang
member. He also testified that many people who tag are not gang
members.
DISCUSSION
I. The trial court did not abuse its discretion in
concluding Orduno’s motion to discharge retained
counsel was untimely
A. Applicable Law and Standard of Review
The Sixth Amendment guarantees a defendant’s right to
retain counsel of their choice. (People v. Maciel (2013) 57 Cal.4th
482, 512 (Maciel).) This right “reflects not only a defendant’s
choice of a particular attorney, but also his decision to discharge
an attorney whom he hired but no longer wishes to retain.”
(People v. Ortiz (1990) 51 Cal.3d 975, 983 (Ortiz).)
The right to discharge counsel, however, is not absolute.
(Maciel, supra, 57 Cal.4th at p. 512.) A trial court has wide
discretion to deny a motion to discharge counsel if discharge
would prejudice the defendant or is untimely. (Ortiz, supra, 51
Cal.3d at p. 983.) Such a motion is untimely if discharge would
5
unreasonably disrupt “the orderly processes of justice.” (Id. at p.
983.) A defendant seeking to discharge retained counsel—as
opposed to appointed counsel—is not required to demonstrate
that counsel is providing inadequate representation or that they
are “embroiled in irreconcilable conflict.” (Id. at p. 984.) The
trial court must consider the totality of the circumstances in
deciding whether the defendant’s motion is timely, which can
include the absence of these factors. (Maciel, at p. 513.)
A defendant’s right to choose a particular attorney is
limited by the countervailing state interest in “ ‘proceeding with
prosecutions on an orderly and expeditious basis, taking into
account the practical difficulties of “assembling the witnesses,
lawyers, and jurors at the same place at the same time.” ’ ”
(Ortiz, supra, 51 Cal.3d at pp. 983–984.) The trial court “must
balance the defendant’s interest in new counsel against the
disruption, if any, flowing from the substitution.” (People v. Lara
(2001) 86 Cal.App.4th 139, 153.)
We review a trial court’s denial of a request to discharge
retained counsel for abuse of discretion. (People v. Lopez (2018)
22 Cal.App.5th 40, 47 (Lopez).) A trial court abuses its discretion
when it exercises that discretion in an arbitrary or absurd
manner, resulting in a miscarriage of justice. (People v. Johnson
(2022) 12 Cal.5th 544, 605–606 (Johnson).) “The erroneous
denial of a defendant’s right to discharge retained counsel is
presumptively prejudicial and automatically requires reversal.”
(Lopez, at p. 47.)
6
B. Trial Court Proceedings
1. Proceedings that preceded Orduno’s request to
discharge retained counsel
In April 2020, Orduno, who was represented by the public
defender’s office at the time, pleaded not guilty to all counts.
Four months later, on August 26, 2020, Orduno retained
Louisa Pensanti to represent him. In 2021, Pensanti represented
Orduno at his preliminary hearing.
The following year, Pensanti requested continuances at
three pretrial conferences in August, October, and November. At
the November 2022 pretrial conference, Pensanti advised the
trial court that all discovery was complete, and specifically, that
“all videos [had been] provided to their expert for a review.” The
court warned that no further continuances would be granted. At
Pensanti’s request, the matter was set for a jury trial readiness
hearing on January 24, 2023, “as day 0 of 10 with a final time
waiver.”
At the trial readiness hearing, Pensanti requested another
continuance, citing a discovery issue. Pensanti was seeking an
original, unaltered version of a residential surveillance video that
identified Orduno. This video was introduced at the preliminary
hearing. Pensanti suggested the video had been “compromised.”
The trial court denied the request, noting Pensanti had confirmed
that all discovery was completed two months prior and set the
matter for trial assignment for January 30, 2023 “as day 6 of 10.”
On January 30, 2023, Pensanti filed a supplemental motion
to continue, asking the trial court to afford her “an adequate
amount of time in which to have the video evidence properly
processed and prepare for trial.” The People countered:
7
As of last week, we were here for 0 of 10. The motion to
continue was denied. We started serving civilian
witness[es] to come to court, expending money and time to
prepare for the witnesses that we subpoenaed. As far as
the civilians and law enforcement, they are now under
subpoena, and we are ready for trial.
After hearing from both parties, the trial court denied Pensanti’s
motion to continue.
2. Orduno’s request to discharge retained counsel
Later that same day, the trial court granted Orduno’s
request for a Marsden3 hearing and excused the prosecutor.
During the closed proceeding, the trial court denied Orduno’s
request to discharge Pensanti. After the Marsden hearing, in
open court, Orduno indicated he wished to represent himself, but
that he would need a continuance in order to do so. Noting that
the case had been on a no further continuances status for several
months, the trial court denied Orduno’s request to represent
himself without prejudice, concluding it was untimely.
The next day, the trial court clarified that a Marsden
hearing is “not the traditional way to have private counsel
relieved.” The court then asked Orduno whether he was seeking
to discharge Pensanti in exchange for a public defender or private
attorney or whether he wanted to represent himself. Orduno
answered that he wished to discharge Pensanti and be given a
court-appointed attorney. He also stated that he had not
previously sought to discharge Pensanti, seek different counsel,
or represent himself. When asked why he had not done so,
Orduno explained that he did not know trial was “going to start
3 People v. Marsden (1970) 2 Cal.3d 118.
8
any time soon.” He also stated he was not agreeing to go to trial.
He further explained that he wanted to have new counsel
appointed because he was “hoping . . . there might be something
different going on except [him] going to trial.” He stated that he
was aware if his request was granted, a new attorney would need
time to prepare for trial. He did not make the request sooner
because trial had not started yet.
The trial court noted that no further continuances would be
granted as of November 7, 2022. Additionally, approximately 17
witnesses would be called in this case (15 prosecution witnesses
and two potential defense witnesses), a panel of 72 potential
jurors were already waiting at the court, and the trial was
anticipated to last 12 court days. The People also explained that
they had been ready for trial “for quite some time,” and although
the defense had requested numerous extensions, the People had
requested none. The trial court reiterated its denial as follows:
I’m going to stand by my previous denial of your request to
discharge Ms. Pensanti. The court is finding that the
request is untimely and would result in a disruption of the
orderly processes of justice under these circumstances.
Specifically, it would cause undue delay at significant
public expense. And these are the findings made according
to People versus Ortiz, 51 Cal.3[d 975] . . . at page 983. So,
again, [Orduno]’s request is denied.
Later that afternoon, jury selection began, and a jury was
empaneled to try the case. Trial began the next day on
February 1, 2023. Twenty witnesses testified at trial, including
19 prosecution witnesses and one defense witness.
9
C. Analysis
1. The trial court applied the correct standard in
denying Orduno’s request to discharge retained
counsel as untimely, and the ruling was not an
abuse of discretion
Orduno’s argument is premised on the following assertion:
“Cases uniformly hold that a motion to discharge [retained
counsel] is timely if made before jury selection and there is no
evidence the defendant made the motion for an improper motive,
namely to disrupt the proceeding.” None of the cases Orduno
cites for this proposition contain any such bright line rule. The
test is broader and more malleable than Orduno asserts—courts
have discretion to deny motions to discharge retained counsel as
untimely based on the totality of the circumstances. (See Ortiz,
supra, 51 Cal.3d at pp. 983–984; Lopez, supra, 22 Cal.App.5th at
p. 47; Maciel, supra, 57 Cal.4th at p. 513.) That is what the trial
court did here, and it did so properly based on legitimate
concerns that granting the motion would unreasonably disrupt
the orderly process of justice. (Ortiz, at p. 979.)
Those legitimate concerns included the fact that Orduno
made his request on the eve of trial, when the case had been
pending for over two years, and several months after the court
ordered no further continuances. The court emphasized that a
panel of 72 potential jurors were awaiting jury selection, the jury
would soon be empaneled, the People’s witnesses had already
been subpoenaed, and the trial was anticipated to last 12 court
days. Moreover, because any new appointed or retained lawyer
would need to learn about the case from scratch and Orduno was
not seeking to represent himself, he was effectively seeking an
indefinite continuance.
10
Orduno only articulated two reasons why he wanted to
discharge his lawyer. He first explained that he sought to
discharge his counsel so that “there might be something different
going on except [him] going to trial.” His desire not to go to trial
was not a legitimate reason to grant his request to discharge his
lawyer on the eve of trial.
Orduna also complained that his retained counsel was
unprepared and incompetent because she did not prepare an
expert to review residential video surveillance. About a week
before trial, counsel attempted to assert the residential video
surveillance evidence was somehow “compromised.” She also
sought a continuance of the trial on the ground she needed more
time for her video expert to review the raw “uncompromised”
footage.
In response to this request for a continuance, the trial court
reviewed the relevant history of the case, including past
discussions about the video. The court explained that it
understood Orduno’s claim the video was “compromised” to mean
that the prosecution was using the video in a converted format
rather than the “raw” video.
The prosecutor explained how and why the video was
converted—so that it could be played on different devices with
different software—and that he had directly shared the video
with the defense expert via an evidence-sharing platform. The
prosecutor made clear that the conversion process did not entail
the editing or changing of the raw material contained in the
video. The prosecutor further noted that the video in question
had already been introduced at the preliminary hearing a year
prior without issue. Nothing in the record contradicts the
11
prosecutor’s assertions; Orduno’s concern about the integrity of
the video was speculative.
The trial court’s decision to not discharge retained counsel
a week before trial due to her alleged incompetence was not
arbitrary or absurd. The video had already been admitted at the
preliminary hearing, and the prosecution clarified how and why
the video had been converted, noting that the conversion process
did not alter the contents of the video. Balancing Orduno’s desire
to discharge allegedly incompetent counsel and the disruption of
the orderly process of justice, the court rejected Orduno’s request
to discharge his counsel. We discern no abuse of discretion under
these circumstances.
In arguing the trial court abused its discretion, Orduno
relies heavily on People v. Hernandez (2006) 139 Cal.App.4th 101
(Hernandez). In his reply brief, he asserts “Hernandez is
controlling and reversal is required pursuant to that opinion.”
Hernandez, however, is of no assistance to Orduno. In
Hernandez, a different panel of this court reversed the judgment,
concluding the trial court erred in denying Hernandez’s request
to discharge retained counsel prior to trial, and the error required
automatic reversal. (Id. at pp. 104, 109.) The Hernandez court
reversed based on two errors by the trial court, neither of which
are present in Orduno’s case. First, the trial court in Hernandez
incorrectly applied a Marsden analysis, which was inapplicable
because Hernandez was requesting to discharge retained counsel.
(Hernandez, at pp. 108–109.) Second, the trial court in
Hernandez did not adequately address the issue of delay.
(Hernandez, at p. 109.) As we explain in the following two
sections, the trial court did not make the same errors here.
12
We reject Orduno’s contention that reversal is required under
Hernandez.4
Nor are we persuaded by Orduno’s argument that reversal
is warranted under Lopez. There, the Court of Appeal reversed
the denial of the defendant’s motion to discharge retained counsel
in part because the trial court did not adequately analyze
whether discharge would unduly disrupt the orderly process of
justice. (Lopez, supra, 22 Cal.App.5th at pp. 49–50.) “[T]he only
inquiry the trial court made was into how long [retained counsel]
had represented Lopez and whether [retained counsel] had been
retained for trial, and it did not explicitly weigh any concerns
about the case’s progress against Lopez’s right to discharge his
retained attorney.” (Id. at p. 49.) Lopez is inapplicable here
because the trial court made no such error in denying Orduno’s
motion to discharge counsel. The court properly asked Orduno
and the prosecution questions that were relevant to assessing the
timeliness of Orduno’s request, then reasonably denied the
request as untimely under the circumstances.
Lastly, in arguing the trial court erred by denying his
request to discharge retained counsel, Orduno points out that she
has a history of being disciplined by the State Bar. Orduno
concedes, however, that the trial court was never made aware of
counsel’s disciplinary record. Orduno cites no authority
suggesting that a trial court has a sua sponte duty to investigate
a private attorney’s disciplinary history when a criminal
4 Citing Hernandez at page 109, Orduno asserts: “Unless
there is evidence the defendant made the motion to discharge his
retained attorney based on improper motive, to delay or disrupt
proceedings, the motion must be granted.” Nothing in Hernandez
supports Orduno’s position.
13
defendant makes a motion to discharge that attorney. We reject
Orduno’s argument that the trial court erred by not considering
counsel’s undisclosed disciplinary history.5
2. The trial court’s inquiry into the timeliness of
Orduno’s request was sufficient
Orduno also argues the trial court “made [an] insufficient
inquiry” into whether discharging retained counsel would disrupt
the orderly process of justice. Relatedly, he contends the court
failed to balance Orduno’s interest in discharging counsel against
whether the request would unreasonably disrupt the orderly
processes of justice. These claims are belied by the record.
After allowing Orduno to express his concerns over the
video evidence, the court sufficiently inquired into the timeliness
of Orduno’s request to relieve counsel. The court confirmed with
both Orduno and his attorney that she had represented him since
August 2020, and confirmed with Orduno that he had not
previously attempted to discharge counsel, find different counsel,
or request to represent himself. The court also noted the
procedural history of the case, explaining that Orduno had been
arraigned in December 2021, and that no further continuances
would be granted as of November 7, 2022. The court then
reviewed in detail the number of witnesses prepared and jurors
summoned and confirmed with the prosecution that it had
announced it was ready for trial in January. The court also
asked Orduno why he wished to discharge his counsel at that
time and why he had not requested to discharge his counsel
earlier.
5 Although this has no impact on our analysis, it bears
noting that Orduno does not make any assertions on appeal that
his private attorney rendered ineffective assistance.
14
On these facts, we conclude the trial court made adequate
inquiries into Orduno’s request and properly balanced his
interest in discharging counsel against the concern that granting
the request would unreasonably disrupt the orderly processes of
justice. (Ortiz, supra, 51 Cal.3d at p. 983.)
3. The trial court did not erroneously conduct a
Marsden analysis
Orduno argues the trial court erroneously conducted a
Marsden analysis. In Marsden, our Supreme Court held that a
defendant is deprived of effective assistance of counsel when the
trial court denies his motion to substitute one appointed counsel
for another without giving him an opportunity to state the
reasons for his request. (Marsden, supra, 2 Cal.3d at p. 123.)
Subsequent cases have held that a defendant cannot substitute
one appointed counsel for another unless he either demonstrates
inadequate representation by his appointed attorney or identifies
an irreconcilable conflict with counsel. (Ortiz, supra, 51 Cal.3d at
p. 984.) In Ortiz, the high court held that a different analysis
applies when the defendant seeks to discharge retained counsel.
(Ibid.)
Here, it is true the trial court granted Orduno’s request for
a “Marsden hearing.” But the following day, in open court, the
court clarified that a Marsden hearing is “not the traditional way
to have private counsel relieved.” The court then cited Ortiz and
conducted its analysis under that case. Contrary to Orduno’s
assertion, the trial court did not erroneously conduct a Marsden
analysis.
15
II. The trial court’s denial of Orduno’s request to
represent himself is not a basis for reversal of the
judgment
Orduno next argues the trial court committed reversible
error when it denied his Faretta v. California (1975) 422 U.S. 806
(Faretta) motion to represent himself. We disagree for several
reasons.
First, although Orduno initially made a Faretta motion in
the trial court, he abandoned that motion the following day when
he clarified that he wished to be represented by appointed
counsel rather than represent himself. By withdrawing his
Faretta motion in the trial court, Orduno forfeited the right to
challenge the denial of that motion on appeal. (See People v.
Skaggs (1996) 44 Cal.App.4th 1, 8 (Skaggs) [defendant’s failure to
thoroughly pursue his Faretta motion in the trial court
constituted abandonment and forfeiture of his right to self-
representation]; People v. Kenner (1990) 223 Cal.App.3d 56, 62
(Kenner) [“[W]here [a defendant] had both time and opportunity
to follow up on his request for a hearing on his Faretta motion,
and failed to do so, he must be deemed to have abandoned or
withdrawn that motion”]; People v. Dunkle (2005) 36 Cal.4th 861,
909 [citing Skaggs and Kenner with approval].) We reject
Orduno’s Faretta argument on that basis.
Second, even assuming Orduno had not abandoned his
Faretta motion, the trial court acted within its discretion when it
denied Orduno’s Faretta motion as untimely. “Although a
defendant has a federal constitutional right to represent himself
[citation], in order to invoke an unconditional right he must
assert it ‘ “within a reasonable time prior to the commencement
of trial.” ’ ” (People v. Frierson (1991) 53 Cal.3d 730, 742
16
(Frierson).) “A motion made after this period is addressed to the
sound discretion of the trial court.” (Ibid.) 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.
Burton (1989) 48 Cal.3d 843, 853.)
Upon reviewing the trial court’s analysis of these factors,
we conclude the trial court acted within its “sound discretion”
(Frierson, supra, 53 Cal.3d at p. 742) to deem Orduno’s Faretta
motion untimely. Orduno made his Faretta motion right before
trial and he was unprepared to take over his trial when he made
his motion. Orduno would have needed an indefinite continuance
to represent himself. Appellate courts have consistently held
Faretta motions made under analogous circumstances may
reasonably be deemed untimely. (See, e.g., People v. Lynch (2010)
50 Cal.4th 693, 722 [“[W]e have held on numerous occasions that
Faretta motions made on the eve of trial are untimely”]; People v.
Frierson, supra,53 Cal.3d 742 [Faretta motion untimely when
made two days before trial]; People v. Scott (2001) 91 Cal.App.4th
1197, 1204–1205 [Faretta motion untimely when made four days
before trial was set to begin].)
Finally, assuming Orduno had not abandoned his Faretta
motion, any purported error in denying the untimely motion
would have been harmless. Whereas the erroneous denial of a
timely Faretta motion is reversible per se (People v. Joseph (1983)
34 Cal.3d 936, 948), the erroneous denial of an untimely Faretta
motion is reviewed for harmless error under People v. Watson
(1956) 46 Cal.2d 818, 836 (Watson). (People v. Rogers (1995) 37
17
Cal.App.4th 1053, 1058.) Applying the Watson standard, we
conclude Orduno cannot satisfy his burden of demonstrating it is
reasonably probable he would have obtained a more favorable
outcome at trial had he represented himself. We reach this
conclusion in light of the very strong evidence of Orduno’s guilt
presented at trial.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TAMZARIAN, J.
We concur:
ZUKIN, P. J.
COGLIATI, J.*
* Judge of the Santa Cruz Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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