P. v. Mitchell

Filed 1/25/10 P. v. Mitchell CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Appellant Paul Mitchell (Mitchell) was charged with multiple felony counts of sexual assault. After discharge of a series of retained or appointed counsel, he successfully sought to exercise his right of self-representation. Several months later, at the time of trial, his request for reappointment of counsel was denied, although he was provided advisory counsel during part of the trial. He was convicted by a jury of eight counts of sexual penetration by a foreign object (Pen. Code,  289, subd. (a)(1)),[1] three counts of forcible oral copulation ( 288a, subd. (c)(2)), and one count of forcible rape ( 261, subd. (a)(2)). Mitchell appeals, contending that the trial court violated his federal constitutional rights in that it: (1) abused its discretion by denying his request at the time of trial for the reappointment of counsel, and by refusing to further continue the trial; (2) erred in allowing advisory counsel to interfere with his control of the case; (3) improperly ordered him restrained and removed from the courtroom; (4) erred by failing to properly instruct the jury concerning his restraints; and (5) committed cumulative errors requiring reversal. We find no prejudicial error and will affirm.

I. Factual and Procedural Background

Mitchell does not challenge the sufficiency of the evidence supporting his convictions. We recite the operative facts to give context to his claims of prejudicial error.

Elizabeth Doe testified that, in 1997, she lived alone in an apartment in Berkeley. Sometime shortly after midnight on May 18, 1997, Elizabeth returned to her apartment, which was located on the floor above a carport, after having dinner at a friends house. She undressed, got into bed, and fell asleep. She was awoken from a deep sleep when someone pounced on her, landing on her midsection. The assailant pulled the covers over her head and clamped a hand over her mouth. Elizabeth could not move because the weight of his body was on top of her. She was not able to see anything, but she detected a strong smell of body odor, dirt, and cigarette smoke. The assailant pressed a hard and cold object against her body and told her: Be quiet, be quiet. Do as I say and I wont hurt you. Elizabeth Doe decided that [her] best chance for surviving this was to do what he said.

The assailant asked [w]hat time is your boyfriend coming home? After telling him no one was coming home, the assailant placed a pillowcase over her head, stuffed a wad of paper towels in her mouth, and tightened the pillowcase around her neck. The assailant then began massaging Elizabeths body, manually stimulating her, and penetrated both her vagina and anus with his finger. He then orally copulated Elizabeth. Next, the assailant told Elizabeth to get up and led her, by the arm, into her living room. He removed the gag from Elizabeths mouth, asked her to show him where she kept liquor, loosened the pillowcase, handed her a bottle of liquor, and told her to drink. After he was not satisfied with the few, small sips Elizabeth took, she feigned swallowing more alcohol. He then led Elizabeth to a chair, where he again penetrated her vagina and anus with his fingers.

The assailant then moved Elizabeth to the other side of her living room, sat her on a wooden chair, and began massaging her again. At one point, Elizabeth lost her balance and reached out to catch her fall. Her hand landed on the assailants thigh, which she described as hairy and [not] very big around. The assailant commenced touching and penetrating her vagina and anus with his fingers once more. The assailant then took Elizabeth by the arm and led her back to her bedroom. He asked her to drink and she complied by pretending to swallow from the liquor bottle he handed her. He then again penetrated Elizabeths vagina and anus. He told Elizabeth: Youre a really wonderful lover. Im really enjoying your body very much.

The assailant then ordered Elizabeth to get on her hands and knees. He laid on the bed and pulled Elizabeth down on top of him so that they were lying chest to chest. He loosened the pillowcase, raised it just enough to expose Elizabeths mouth, and began kissing her on the lips. The assailant reminded her that he had a weapon and made it clear that he wanted her to open her mouth. Elizabeth could tell that her assailant had very full lips and some facial hair both on his upper lip and his chin. Next, the assailant pushed Elizabeths head down towards his groin, saying, Dont worry. Im clean. No STDs. The assailant placed his penis in Elizabeths mouth and, when she remained motionless, he began thrusting until he ejaculated.

The assailant led Elizabeth back to the sofa in the living room where he orally copulated her. He then led her back to the bedroom, ordered her to lie on the bed face down, massaged and spanked her buttocks, rubbed his penis on her, ordered her to turn over, and then penetrated her vagina with his penis. He ordered her to lie next to him, took her arm and draped it over his torso, and said I hope youre enjoying loving me as much as Im enjoying loving you. After he rested, the assailant became talkative. Elizabeth testified: I cant give you examples of like exact things that he said but I remember the tone of it. It was very, very rambling and very philosophical. . . . [I]t sounded like he somewhat considered himself quite an intellectual and quite a philosopher. The assailant also told her that he was sorry they had to meet as they had and that he would have liked to have enjoyed [her] mind and [her] spirituality, rather than just [her] body.

Elizabeth told the assailant, in an effort to get him to leave, that she was running the Bay to Breakers the next day with friends and that they were coming to pick her up very early in the morning. Elizabeth testified to hearing the assailant put his clothes on, open and close her drawers, and pop the battery out of her cordless phone. Elizabeth also heard what sounded like the assailant wiping surfaces down. He led her to the bathroom, where she heard him splashing and running water. He next led her to the kitchen, where she heard the refrigerator open, a bottle cap unscrewed, and liquor bottles clinking. The assailant asked her for money and she told him she had some in a tote bag, which he led her to retrieve. After Elizabeth removed the bills inside, the assailant asked for postage stamps, which she removed from her tote bag and gave to him. The assailant asked to see her student identification card and told her she was a real cutie when she produced a card with her photo on it. He encouraged Elizabeths studies, told her he was hiding the battery and cords to her phones outside,[2] and then told her Im going to leave now. Make sure that you lock the door behind me. And from now on you should be more careful and make sure you lock your door.

After hearing the assailant leave and waiting several minutes, Elizabeth walked around the apartment to ensure she was alone, removed the pillowcase from her head, and locked her door. Elizabeth then used her computer to phone the police. The police arrived, took Elizabeth to the emergency room where samples were collected for a sexual assault kit,[3] and took her statement at the police station. Elizabeth described the assailant to police as likely an African-American male, with facial hair, who was of average height and medium build, and who wore a band around his wrist.[4] She also indicated that he had a slight Caribbean accent. The police dusted for fingerprints at Elizabeths apartment, collected evidence, including several pieces of black-colored hair, and took photographs.[5] A fresh, latent fingerprint was found on a vase in Elizabeths bedroom.[6] None of Elizabeths fingerprints were found at the scene.

Sperm was found on both the vaginal and rectal swabs from the sexual assault kit. DNA evidence from the sperm on the vaginal swab was extracted and analyzed. A genetic profile for the sperm on the vaginal swab was generated and placed into the Combined DNA Index System (CODIS), a national computerized database of both evidentiary and known DNA profiles. Several years later, in 2005, there was a cold hit on the evidentiary DNA profile, indicating a match with a database known DNA profile for Mitchell. The Berkeley police department was informed of the match.

The latent fingerprint lifted from the vase was also matched to fingerprint exemplars for Mitchell. The comparison revealed that the latent was made by the subject Paul Mitchell and that it probably was made shortly before [police] came and processed the scene. Mitchell was arrested on July 1, 2005.

After Mitchells arrest in 2005, the Berkeley police department obtained an additional DNA sample from Mitchell to confirm the cold hit from the database. The 2005 sample matched the profile from the sperm found on the vaginal swab. In 2006, another sample was obtained from Mitchell. Again, the DNA matched that from both the vaginal swab and the 2005 sample. The criminalist who analyzed the DNA evidence, and who qualified as an expert in DNA analysis and interpretation, testified: Unless there is an identical twin, in my opinion . . . Mitchell was the source of the DNA on the vaginal swab.[7] She further testified that the probability that a random unrepresented individual who by chance possessed the DNA profile in the vaginal swab is estimated to be one in 2 quintillion for African-Americans . . . .

As discussed post, Mitchell proceeded pro per at trial. The defense presented the testimony of four witnesses: Henry Wellington, Thomas Graber, Rosalind Berger, and Barbara Thomas. Wellington testified that he arrested Mitchell, on July 1, 2005, on two minor vehicle code warrants. Wellington knew at the time that Mitchell was a person of interest in an ongoing investigation. Graber, who was a neighbor of Elizabeths, testified that, on the night of the attack, he heard noises of metal on metal and metal on wood. He then saw an unidentified person walk into view at the bottom of the apartment driveway. Graber did not know who attacked Elizabeth. Berger, an acquaintance of Mitchells, testified that, in 2005, she had allowed Mitchell to sleep in a camper she had parked close to a city maintenance yard where Berkeley police cars parked. She testified that the lock on the camper did not work and she probably would not have noticed if an intruder had entered the camper. Barbara Thomas, who represented Mitchell at his preliminary hearing, confirmed that Elizabeth Doe could not identify Mitchell as the assailant at that time. Mitchell did not testify.

After less than one full day of deliberation, the jury found Mitchell guilty of eight counts of sexual penetration by a foreign object, three counts of forcible oral copulation, and one count of forcible rape. The jury also found enhancement allegations under section 667.61, subdivisions (c), (d)(4), and (e)(6), to be true. Mitchell was sentenced to imprisonment for a total term of 55 years to life. This timely appeal followed.

II. Discussion

Mitchell contends that the trial court: (1) abused its discretion by denying his request for the reappointment of counsel at the time of trial, and by refusing to continue trial; (2) allowed appointed advisory counsel to interfere with his control of the case; (3) improperly ordered him restrained and removed from the courtroom; (4) erred by failing to properly instruct the jury concerning his restraints; and (5) committed cumulative errors requiring reversal. We address each of these arguments in order.

A. Reappointment of Counsel

First, Mitchell contends that the trial court abused its discretion in denying his requests to terminate his previously requested self-representation and to reassert his right to counsel. We find no abuse of discretion.

1. Procedural Background

Pre-trial Motions

A felony complaint, charging Mitchell with the sexual assaults on Elizabeth Doe, was filed on July 5, 2005. On August 15, 2005, the court granted the motion of Mitchells retained counsel, John Taylor, to withdraw on the basis of conflict with his client. Mitchell then indicated that he did not wish to represent himself or to be represented by the public defender, but would seek to retain another attorney. It appears that Mitchell was unsuccessful in this attempt, and on a date not reflected in the record before us, the public defender was appointed to represent Mitchell.[8] On May 16, 2006, Mitchell made a Marsden[9] motion, asking the court to discharge the deputy public defender, and either appoint new counsel, or permit him to represent himself. The motion was granted and Mitchells case was referred to conflicts counsel. On May 22, 2006, after two attorneys declined to accept the appointment, Mitchell moved to represent himself, under Faretta v. California (1975) 422 U.S. 806 (Faretta). The court advised Mitchell on the record of the consequences of self-representation, found a knowing and intelligent waiver of the right to counsel, and granted the motion.

Although the record is again incomplete on this issue, it appears that Mitchell nonetheless accepted the appointment of attorney Barbara Thomas at some time in May 2006. On November 3, 2006, Thomas represented Mitchell at his preliminary hearing, after his Marsden motion to relieve her was denied.

At his arraignment on the information, Mitchell again made a Faretta motion for self-representation. The motion was denied on the basis that Mitchell had accepted, if not requested, appointment of counsel after his prior Faretta motion had been granted. Attorney Thomas then declared a doubt as to Mitchells mental competence and proceedings were suspended, pursuant to section 1368.

Mitchell was found competent to stand trial, and when proceedings were reinstated on January 26, 2007, Mitchell renewed his motion to represent himself before Judge Kenneth Kingsbury. Mitchell completed and signed a Petition to Proceed in Propria Persona, whereby he acknowledged, in relevant part: I understand that I have the right to be represented by a lawyer at all stages of the proceedings and, if I do not have funds to employ counsel, one will be appointed for me by the court. If the Court grants my Petition to Proceed in Propria Persona, and if I am permitted to represent myself, I understand I will have to conduct my own defense without the aid of counsel, unless the court grants a motion by me for advisory counsel. [] Understanding all of the constitutional rights set forth above, it is my personal desire that I be granted permission by the Court to proceed in propria persona (acting as my own attorney) and that by making this request, I am giving up the right to be represented by a lawyer appointed by the Court.

Mitchell was further advised: [I]f you wish to change this, make sure that you do so well in advance of a trial date if a trial date has been set because one of the major triggers here is if a trial date has been set and a lawyer comes in to try to enter into your case, which has to be done by motion or approved by the court, and the first words out of the lawyers mouth or nearly the first words are: By the way, I cant go to trial on this date. I need a continuance of six weeks, two months, three months to do independent investigation. [] . . . [] Thats probably going to be frowned upon. So I cant advise you, but I will tell you that if you are going to turn away from Faretta, if youare satisfied thats the wrong thing to do in the future, its much more likely to be granted if no trial date has been set. Mitchells motion was granted.

In March of 2007, Mitchell made several requests, to both Judge C. Don Clay and Judge Kingsbury, for the appointment of advisory counsel. These requests were denied. Mitchells motion for the assistance of an investigator was granted and several different investigators were appointed. In November 2007, another request for advisory counsel was denied by Judge Clay.

Trial Motions

On January 28, 2008,[10] the case was assigned to Judge Cartwright for jury trial. Mitchell again requested advisory counsel, standby counsel, or cocounsel.[11] Judge Cartwright noted that a prior judge had denied similar requests and [she was] not going to re-rule on that.

Mitchell did not, however, indicate that he wished to terminate his self-representation. Instead he made it clear that he still wished to represent himself, but wanted advisory counsel appointed to assist him. On February 4, Mitchell told Judge Cartwright that he had elected self-representation because I had a plan. My plan was to go pro per and then get advisory counsel. I messed up in that I got the pro per but I didnt get the advisory counsel.[12] On the following day, he said It may seem that Ive wanted to represent myself. Ive only used that as a vehicle so that I could get to represent myself with either co-counsel or represent myself with advisory counsel. On February 6, the trial court conducted a hearing to ensure that Mitchell was receiving adequate propria persona services. The court also appointed a new investigator.

On February 20, after a jury panel was sworn, Mitchell informed the trial court: I have a problem with not having an attorney. The trial court did not respond. Later that same day, Mitchell learned that Dr. Blake, a DNA expert that Mitchell had sought to engage, declined to work with self-represented defendants. Mitchell stated: I need an attorney. Again, the record does not reflect any response from the court.

On February 21, before opening statements were made, the record reflects the following discussion:

MR. MITCHELL: And the other thing Id like to state for the record before we begin is that my participation in these proceedings are not in any way to reflect that I am still not asking for an attorney.

THE COURT: Weve gone through that and I told you I dont want to hear another word about it. Weve already decided. You said you wanted to go pro per. Thats what youre doing. Youre not going to stand up here every single day and put that on the record.

MR. MITCHELL: I said it was everyday I was going to say I wanted an attorney.

THE COURT: We dont need to hear it everyday.

MR. MITCHELL: The other thing is I do intend on cooperating with the Court. But like I said, I want to state for the record I am doing this under duress and I do want an attorney.

THE COURT: Have a seat. Thats enough of that.

MR. MITCHELL: Im telling the truth.

THE COURT: Weve heard that 50 times.

MR. MITCHELL: Youre going to hear it 100 times.

THE COURT: We understand it. And youre proceeding pro per.

[THE PROSECUTOR]: I would like to make a clarification, because the request today is [a] little bit different, which is just an attorney where in the past its been other co-counsel or advisory attorney which is different. And I do think that the defendant should make a clarification for the record if hes requesting an attorney or if hes requesting advisory counsel or to be co-counsel. Those are different.

THE COURT: Weve already gone through all of these. He asked for and was given attorneys twice. He got rid of them.

MR. MITCHELL: The judge got rid of them.

THE COURT: After you requested that they do so.

MR. MITCHELL: Which they dont do unless they see its valid to do so.

THE COURT: You asked for them to be released. Were not going over that.

MR. MITCHELL: Judges dont release because they ask for --

THE COURT: Excuse me. Excuse me. They released them. You got another one. You could have had another. You could have had a third one, and you decided you wanted to go pro per. And thats where we are today. [] Advisory counsel, Judge Clay ruled on that. Co-counsel is not available because youre not a lawyer. And --

MR. MITCHELL: But Im performing as a lawyer.

THE COURT: Exactly. Youre going pro per.

Again, on February 25, after opening statements had been made, two witnesses had testified, and a third had begun his testimony, Mitchell again requested counsel. The court denied the request. Additional testimony was taken on February 26 and February 27. On February 28, trial was recessed due to medical issues Mitchell was experiencing. Trial resumed on April 15, when Mitchell was medically cleared following surgery on March 7. During the recess, the court reconsidered its ruling on appointment of counsel, apparently on its own motion, and on March 10 appointed advisory counsel.

2. Analysis

A defendant in a criminal case possesses two constitutional rights with respect to representation that are mutually exclusive. A defendant has the right to be represented by counsel at all critical stages of a criminal prosecution. (United States v. Wade (1967) 388 U.S. 218, 223227; Gideon v. Wainwright (1963) 372 U.S. 335, 339345; Powell v. Alabama (1932) 287 U.S. 45, 71.) At the same time, the United States Supreme Court has held that because the Sixth Amendment grants to the accused personally the right to present a defense, a defendant possesses the right to represent himself or herself. (Faretta v. California, supra, 422 U.S. 806, 819 (Faretta).) (People v. Marshall (1997) 15 Cal.4th 1, 20, parallel citations omitted.)

There is, however, no constitutionally guaranteed right to the assistance of cocounsel, or of advisory counsel. (People v. Blair, supra, 36 Cal.4th at p. 723.) [A] self-represented defendant who wishes to obtain the assistance of an attorney in an advisory or other limited capacity, but without surrendering effective control over presentation of the defense case, may do so only with the courts permission and upon a proper showing. [Citation.] (People v. Stewart (2004) 33 Cal.4th 425, 518, only citation omission added.) A trial court may, in its discretion, appoint counsel to render . . . advisory services to a defendant who wishes to represent himself, in order to promote orderly, prompt and just disposition of the cause. (People v. Garcia (2000) 78 Cal.App.4th 1422, 1430.) The court also has discretion to deny as well as to grant [a motion for advisory counsel]. . . .  [Citations.] [A]s with other matters requiring the exercise of discretion, as long as there exists a reasonable or even fairly debatable justification, under the law, for the action taken, such action will not be here set aside . . . . [Citations.] [Citation.] [Citation.] (People v. Sullivan (2007) 151 Cal.App.4th 524, 554, only first and last citation omissions added.)

While Mitchells self-stated plan to represent himself with the assistance of advisory counsel may have failed, it does not follow that the court abused its discretion in denying such assistance, and he appears to make no such argument here.

Assuming that Mitchell at some point during the trial unequivocally asked for reappointment of trial counsel, the focus then is whether the trial court abused its discretion in denying that request. Once a defendant has commenced trial representing himself, it is within the sound discretion of the trial court to determine whether he may change his mind and assert the right to appointment of counsel. (People v. Gallego (1990) 52 Cal.3d 115, 163164; People v. Elliott (1977) 70 Cal.App.3d 984, 993 (Elliott).) In exercising that discretion, the trial court may consider: (1) defendants prior history in the substitution of counsel and in the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendants effectiveness in defending against the charges if required to continue to act as his own attorney. (Elliott, supra, at pp. 993994; accord, People v. Lawrence (2009) 46 Cal.4th 186, 192 (Lawrence).) A court may also consider the defendants motive in asking to withdraw a Faretta waiver. (People v. Ngaue (1991) 229 Cal.App.3d 1115, 1126.) However, it is the totality of the facts and circumstances which the trial court must consider in determining whether to permit a defendant to again change his mind regarding representation. (Lawrence, supra, 46 Cal.4that pp. 192193; People v. Gallego, supra, 52 Cal.3d at p. 164.)

Mitchell challenges the trial courts response to his February 20, 21, and 25 requests. Mitchell claims on appeal that on each of these days he made unequivocal requests to withdraw his Faretta waiver and reassert his right to counsel in this case. We disagree that Mitchells colloquies with the court were unequivocal assertions that he wished to withdraw his repeatedly asserted right to self-representation. With respect to his request on February 20, we agree with the People that [t]he trial court should not be faulted for thinking that [Mitchell] was merely renewing for yet another time his variously phrased requests for advisory counsel, particularly when Mitchell repeatedly advised the court that this had been his plan from the outset in requesting self-representation. (See Lawrence, supra, 46 Cal.4th at pp. 193194.) Thus, on February 20, the trial court did not abuse its discretion in proceeding without further comment.

With respect to February 21 and 25, even if we were to assume that Mitchell then unequivocally requested a new trial attorney, we still reject Mitchells argument that the trial court necessarily abused its discretion by failing to mention all of the above factors on the record each time Mitchell requested reappointment of counsel. Mitchell relies on the Elliott courts statement that the trial court must establish a record based upon the relevant factors involved and then exercise [its] discretion and rule on defendants request for a change from self-representation to counsel-representation. (Elliott, supra, 70 Cal.App.3d at p. 994.) The Supreme Court has explicitly rejected similar arguments, stating: [W]e do not agree with the arguments premises that the trial court must review on the record each factor mentioned in Elliott or that any one factor is necessarily determinative. The standard is whether the courts decision was an abuse of its discretion under the totality of the circumstances (People v. Gallego, supra, 52 Cal.3d at p. 164), not whether the court correctly listed factors or whether any one factor should have been weighed more heavily in the balance. (Lawrence, supra, 46 Cal.4th at p. 196, italics added.)

That the trial courts response, on February 21 and February 25, was abbreviated does suggest that the trial courts patience with Mitchell was wearing thin. But, the record surrounding Mitchells prior, repeated requests for advisory counsel is highly relevant to the totality of the circumstances. In fact, on February 21 and 25, the trial court explicitly referred back to these prior discussions. Accordingly, we view the trial courts response in context. (See Lawrence, supra, 46 Cal.4th at p. 196; U.S. v. Leveto (3d Cir. 2008) 540 F.3d 200, 208209.)

Furthermore, the following exchange took place on February 25, albeit after the court had denied Mitchells motion:

MR. MITCHELL: How come I have a Penal Code book and it says in the book that the defendant has a right to counsel at all, at every process of trial?

THE COURT: Unless that person says they want to represent themselves, and thats what you did. And thats where we are. [] . . . []

MR. MITCHELL: How do I countermand that?

THE COURT: You cant now. Its already been decided. You asked for pro per status. Then you asked for an attorney. You were given an attorney. Two -- or excuse me -- two or three things happened. You were given another attorney. Something else happened. You wanted pro per status again. You were given an investigator. You didnt want that investigator. Something happened with another investigator. You were given another investigator. Youve been to court all these times. You have pro per status. You are not going to be able to have an attorney to represent you on this because you have chosen to represent yourself.

MR. MITCHELL: And Im countermanding that choice.

THE COURT: You cannot come in the middle of the trial, be assigned out to trial, and then all of a sudden say, Yeah, but I want an attorney. Thats just playing games and were not going to allow you to play games with this system.

The above excerpt, along with our review of the entire record, shows that the court explicitly addressed the majority of the Elliott factors and the record amply supports the courts implied findings on other factors. The court explicitly discussed the late stage of the long delayed proceedings and Mitchells history of gamesmanship with respect to representation. The trial court reasonably inferred from the timing of Mitchells requests an attempt to further delay the trial. The court explicitly noted that any appointment of counsel after Mitchells lengthy self-representation would certainly have necessitated substantial delay and jeopardized the jurys continued availability. The court had previously said: [Advisory counsel] cannot jump into a case like this and be prepared to proceed on the 14th. Furthermore, the court reasonably concluded that Mitchells history of representation suggested gamesmanship, and his own statements to the court about his plan indicated manipulation.

Elliott does not compel us to conclude that the trial court abused its discretion. In Elliott, supra, the reviewing court concluded that the trial court abused its discretion by refusing to reappoint counsel for a self-represented defendant who made such a request after the jury had been selected, but before opening statements. (Elliott, supra, 70 Cal.App.3d at pp. 994, 997998.) However, in Elliott, the public defender, who had been released from representation only when the case had been called for trial, stated that he would be able to commence trial representing the defendant in ten days. (Id. at pp. 987988, 994995, 998.) The defendant gave a valid reason for requesting termination of his self-representation, the trial was not lengthy, but the trial judge would only consider granting defendants request if counsel was prepared to proceed at once. (Id. at pp. 995998.)

Elliott is distinguishable on the facts presented here.[13] Although Mitchells February 21 request for reappointment of counsel was made at the same stage of proceedings, Elliott involved a potential delay of only 10 days because the public defender had been released only on call of the case for trial. (Elliott, supra, 70 Cal.App.3d at pp. 991, 998.) Here, on the other hand, Mitchell did not seek reappointment of any of his prior attorneys who might have had some familiarity with the caseand with whom he had asserted conflicts. New counsel would have obviously required a more substantial continuance to be prepared to meaningfully assist Mitchell. Significantly, the court did decide to appoint advisory counsel when the trial was otherwise delayed by Mitchells medical emergency, providing that attorney with over a month to prepare.

Moreover, Mitchell did not make clear the reasons for his late request to terminate self-representation. Mitchell asserts on appeal that he was in way over his head, which is consistent with some of his statements to the trial court. It was not the courts obligation, however, to rescue Mitchell from the consequences of what he termed his own strategic decision. On February 20, Mitchells request seems to have been motivated by the fact that a potential defense DNA expert, Dr. Blake, declined to work with him as a self-represented defendant. At other times, Mitchell asserted that his request to terminate self-representation was motivated by the fact that he had been unsuccessful in obtaining advisory counsel. But, he also acknowledged that advisory counsel had never been guaranteed. These ever-shifting justifications, combined with Mitchells history of Faretta and Marsden motions, could well have reinforced the trial courts view that Mitchell was simply attempting to manipulate the system. A request to terminate self-representation may properly be denied when the court determines it is merely an attempt to manipulate the court system. (People v. Trujillo (1984) 154 Cal.App.3d 1077, 1087.)

Mitchell may certainly have been more effectively represented if counsel had been reappointed. However, if that fact were determinative, virtually all self-representing defendants would have the right to revoke their counsel waivers at any time during trial. That is not the law. [Citations.] (Lawrence, supra, 46 Cal.4th at p. 196.) Mitchell insisted that he had graduate and undergraduate degrees. The trial court had previously noted: it sounds like youre a very intelligent person and I dont know any reason why you could not be pro per at this time. Given the totality of the circumstances, we conclude that the trial court did not abuse its discretion in denying Mitchells requests to terminate his self-representation.

B. Continuance of Trial

Next, Mitchell argues that the trial court abused its discretion, and violated his federal constitutional rights to due process and to counsel, by refusing to continue trial on February 14 and April 15. Specifically, he claims that when a defendant acts as his own lawyer[,] forcing him to proceed with trial when he is unable not only is an abuse of discretion but is also a violation of his rights to effective assistance of counsel and due process.

1. Background

The record reflects that Mitchell had previously been granted a continuance of trial from October 2007 until January 28. On January 7, Mitchell submitted pretrial motions, again requesting a continuance. At the time the matter was assigned for trial, however, he advised the court that the purpose for the requested continuance had been to allow him to locate another attorney, and he then asked that the request be stricken.

On February 14, after the trial court indicated its readiness to call for the jury, the record reflects the following colloquy:

DEFENDANT MITCHELL: Good morning to the court officers. Theres been some new developments. I went to the hospital yesterday, as you may or may not be aware, and I dont have the paperwork with me and I cant confirm it, of course, but the diagnosis was that I have a critical heart disease and I may need, I may need an operation.

THE COURT: Well, Im sure if that was something that happened yesterday, they would have kept you in there. If you needed it urgently, they would have kept you in the hospital.

DEFENDANT MITCHELL: Well, the evaluation was made and the examination was made and the information has to be further reviewed by a cardiologist to see how imminent the operation would be.

THE COURT: All right. Well, you let me know when they say that. [] Who is the doctor?

DEFENDANT MITCHELL: The doctor at the institution?

THE COURT: Who examined you?

DEFENDANT MITCHELL: Two technicians that ran this big machine, what do you call it, echocardiogram machine.

THE COURT: I dont know.

DEFENDANT MITCHELL: I saw them write the information on the form. They have to send it back to the institution. Then the doctor at the institution, Dr. Orr, has to confer with a cardiologist and I dont know who that will be.

THE COURT: I can assure you if it was a critical thing with your heart, they would have not let you leave the hospital. They would have done it immediately.

DEFENDANT MITCHELL: All Im saying is I saw them write critical.

THE COURT: Well, they didnt tell us critical. [] All right. We will continue.

Mitchell submitted a declaration with his written motion papers, which provided: Defendant was apprised that he has critical heart disease complications by staff at Highland Hospital. ECG exam and evaluation results will establish how imminent is surgery to correct the problem. The trial court denied the motion for a continuance, stating: Im not going to continue a case at this point when we have all of these jurors out here. I am not. Okay? You are not in the hospital. I got a note dated December -- Im sorry -- February 1, from the staff doctor, Dr. Wilson, and he said you had seen him for a number of complaints and I have a report here that theres nothing urgently wrong with you right now. Mitchell then indicated that he was going to ask his investigator to go to the hospital and get the documentation [so that he could] submit that as soon as possible. The court indicated: All right. Thats fine. You can do whatever you need to do. . . . [] . . . [] In the meantime, were calling for the jury now.

When Mitchell asked for clarification, the court confirmed that Mitchells motion for a continuance was denied: Im not saying you concocted anything. Im just saying its been my experience if someone has a serious heart problem and they are in the hospital, they would keep them in the hospital, they wont let you go home and meander around. [] Plus a technician is not equipped to say you have a serious heart problem. Thats for the heart doctor, who is a thoracic surgeon. . . . [] . . . [] . . . [I]f I hear from a heart doctor, they are probably telling me that you need to be in the hospital, which I will honor if they tell me you need to be in the hospital. But a technician doesnt know, all they do is run those machines. [] Okay. Lets go. Those people are standing outside and were not going to delay this proceeding any further.

Two weeks later, on February 28, the court stated on the record, outside the presence of the jury: [W]e received a call this morning from our deputy, who informed us that [Mitchell] had gone in for an Echo exam the other day. And then they called him and said he had to come back immediately because he had a critical valve, heart valve condition. So hes scheduled for an appointment today, and its possible that he may have to have surgery. [] . . . [] So what we want to do is just make a record . . . that we cant proceed today because of Mr. Mitchells medical condition. On March 3, proceedings were continued to March 10 because Mitchell was scheduled for surgery the next day.

On March 10, the trial was continued to April 16. The trial court stated on the record: I spoke with the doctor, Dr. Coyness Ennix, who performed the surgery on [Mitchell] last Friday. That would have been March 7th. Dr. Ennix informed me that the defendant is doing very well. He replaced the aortic valve. He said that valve had to be replaced and its something that needed to be done then. It wasnt anything that could have waited. He was in the down stages so it was a[n] open heart surgery. And he was in intensive care for a few days but now hes . . . on a regular floor. Hes sitting up. He should be back to Santa Rita by this Friday. And he said he needed about a month to totally recover. Thats why I was looking at the 15th of April.

On April 15, approximately five weeks after his surgery, Mitchell appeared in court and the court noted: I did speak with Dr. Harold Orr, who is the doctor who is in charge of the medical facility at Santa Rita. Dr. Orr indicated to me that Mr. Mitchell was medically stable and that he was clear for trial.[[14]] . . . [] . . . [B]ased on your medical situation, the Court appointed . . . advisory counsel. Later that day, Mitchell did not explicitly request a continuance, but told the court: Your Honor, Im incapable of proceeding with these proceedings because I dont understand whats going on. . . . [] . . . [] I just said that I am not prepared. Im not functioning to be able to proceed with these proceedings. Mitchell also complained that his chest hurt. Mitchell asserted that Dr. Ennix, who performed the heart surgery and had not seen Mitchell since, had recommended Mitchell not proceed with trial until after April 30.[15] Proceedings resumed, over Mitchells objection.

2. Analysis

Continuances shall be granted only upon a showing of good cause. ( 1050, subd. (e).) [T]he decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court. [Citations.] The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked. [Citation.] [] Under this state law standard, discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered. [Citations.]  Moreover, the denial of a continuance may be so arbitrary as to deny due process. [Citation.] However, not every denial of a request for more time can be said to violate due process, even if the party seeking the continuance thereby fails to offer evidence. [Citation.] Although a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality[,] . . . [t]here are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. [Citation.] Instead, [t]he answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. [Citations.] (People v. Beames (2007) 40 Cal.4th 907, 920921, only citation and paragraph formatting omissions added; accord, Ungar v. Sarafite (1964) 376 U.S. 575, 589.)

The trial court did not abuse its discretion in denying Mitchells February 14 continuance motion. There was simply no evidence at that time substantiating the need for a continuance. ( 1050, subds. (b) [continuances in criminal proceedings require filing written notice with affidavits or declarations detailing specific facts demonstrating necessity], (i) [continuances granted only for period of time evidence shows is necessary]; Cal. Rules of Court, rule 4.113 [criminal trial continuances disfavored; moving party must present affirmative proof in open court that the ends of justice require a continuance].) Mitchell was present in court and not in the hospital. He presented no evidence from a medical doctor showing he was unable to proceed. Mitchell had obtained an order for a medical evaluation of his heart condition two years earlier, on March 22, 2006, and the court could reasonably have expected that medical evidence would have been submitted had it supported Mitchells request. Mitchell said he would submit such evidence, but then failed to do so. Further, Mitchell himself conceded that it was unknown when surgery might occur. Mitchells declaration did not indicate that he was in any physical pain or suffering any impairment. That Mitchell was eventually hospitalized and underwent surgery, does not mean that the trial court abused its discretion when it denied Mitchells February 14 motion on the basis of the evidence then before it.

Nor did the trial court abuse its discretion by resuming proceedings on April 15, rather than on April 30. The trial court did continue the trial so that Mitchell could recover from surgery. Even assuming that Mitchell properly raised the issue of a further continuance, the trial court was not required by anything contained in Dr. Ennixs letter to continue trial until April 30. (People v. Medina (1995) 11 Cal.4th 694, 739 [trial court had no sua sponte obligation to continue trial absent request]; People v. Mazoros (1977) 76 Cal.App.3d 32, 41 [medical reports are not determinative but only a factor considered by the court].) The trial court reasonably relied on Dr. Orrs opinion because Dr. Orr had more recent contact with Mitchell. Furthermore, the trial court indicated its understanding that Dr. Ennixs letter was based upon the general ways things generally go, that it did not indicate any unusual situation, and that Dr. Ennix had not seen [Mitchell] since the surgery. The record does not contain any evidence, beyond Mitchells vague complaints, that specifically supports his current assertion that he was required to proceed to trial with an attorney who was ill and did not possess the cognitive abilities necessary to adequately defend [himself]. The trial court in fact observed otherwise.[16] We cannot say that the trial court abused its discretion. Having found no abuse of discretion, we also reject Mitchells constitutional claims.

C. Role of Advisory Counsel

Notwithstanding his repeated requests for advisory counsel, and his insistence here that he unequivocally sought to terminate his pro per status, Mitchell complains that the advisory counsel who was ultimately appointed interfered with his Faretta right to present his own defense.

1. Background

After advisory counsels appointment, Mitchell asked for counsel to play a greater role, stating: Im not going to do anything . . . . Im going to let him handle the case. The trial court explained: Hes only going to be assisting you. Later, Mitchell asked that the trial court allow advisory counsel to cross-examine witnesses. The court denied these requests, explaining: Thats not allowed. . . . [] . . . [] [H]es not here to ask questions. Hes just here to advise you. [] . . . [] Thats not the role of advisory counsel, no. Hes not co-counsel. Hes not counsel. Hes only here in a limited capacity to advise . . . you on certain legal issues. The trial court allowed advisory counsel to suggest questions for Mitchells cross-examination.

Mitchells complaint here relates to advisory counsels involvement with Dr. Ford, a DNA expert engaged for the defense. On the day Dr. Ford was expected to testify, the record reflects the following discussion outside the presence of the jury:

THE COURT: All right. The next thing that I wanted to say is that we had allocated $2,000 for a DNA expert. And [advisory counsel] has just presented me with a bill that came to $3,344, and that was from DNA expert Simon Ford, Ph.D., who is writing a report and has his record of the work that he did in this case. [] And [advisory counsel], did you have a chance to speak with Dr. Ford about testifying in court?

[ADVISORY COUNSEL]: Yes. He is still involved in the San Mateo thing. He is on standby. He has to be there. If hes not there today, hes supposed to be there tomorrow. And --

THE COURT: He couldnt come in here today for a little while?

[ADVISORY COUNSEL]: Hes on standby. He has to be within an hour away. He has to be there within an hour from the phone call.

THE COURT: So he would not come in today and testify if we asked him to?

[ADVISORY COUNSEL]: No. The reason is that hes, you know, if they called him, hes got to go.

THE COURT: All right. And did you have a chance to talk to him about what he would say if he were to testify?

MR. MITCHELL: Your Honor, thats hearsay.

THE COURT: Were not in front of the jury. This is for my records.

[ADVISORY COUNSEL]: Yes, Your Honor. I believe earlier I had indicated to the Court what he would say if he were called to testify. The biggest thing he would say is that he -- and Im not sure if I should do this in front of the prosecutor or not. If the Court wants me to I will.

THE COURT: Yeah, I do want you to.

[ADVISORY COUNSEL]: The biggest thing is he would disagree with the statistics for two reasons. The first reason being since its from a database, he thinks the statistics should be adjusted in the defendants favor, No. 1. [] No. 2, he classifies the male profile that was obtained from the sperm fraction as being a mixture as opposed to a single source. And because of that, he would again adjust the statistics in favor of the defendant. His adjustment out of 18 zeros, if you get rid of three, four, five zeroes, you still have a big number. And it would not be very --

THE COURT: He would get rid of three to five zeroes, and instead of it being one in one quadrillion, it would be one in --

[ADVISORY COUNSEL]: A couple hundred million or something like that.

[THE PROSECUTOR]: Theres 18 zeroes. If you get only rid of three of them, youve still got 15 zeroes.

[ADVISORY COUNSEL]: Maybe you get it down to 12 zeroes.

THE COURT: If youre down to 12 zeroes, what is that? A billion?

[ADVISORY COUNSEL]: No, its more than a billion.

THE COURT: A trillion. So a one followed by 12 zeroes as opposed to a one followed by 18 zeroes?

[ADVISORY COUNSEL]: 18.

THE COURT: So in your opinion as an attorney, would you call such a witness?

[ADVISORY COUNSEL]: No.

THE COURT: Why not?

[ADVISORY COUNSEL]: He cant help me. We sought through cross-examination to bring out, flush out those points, and what you would have is ultimately Mr. Ford would not be disagreeing. He would just be making adjustments.

THE COURT: Okay. And he is not available until when?

[ADVISORY COUNSEL]: Next week. Next Monday. Hes still involved in a murder case in San Mateo County.

THE COURT: Now, if this were some testimony that would be beneficial to Mr. Mitchell, we would consider waiting. But in this situation where its not going to benefit him in any way to have this witness testify --

MR. MITCHELL: Your Honor, you dont know that.

THE COURT: -- then the Court is not willing to continue this matter until next Monday. Therefore, were going to proceed. [] And do you have any further witnesses that you wish to call?

MR. MITCHELL: (Shaking head from side to side.)

THE COURT: Are you going to testify on your own behalf?

MR. MITCHELL: My testimony is contingent upon examining the witness, the witness that [advisory counsel] --

THE COURT: How could that be? Theres a lot of stuff other than the DNA stuff. Theres a lot of things that if you wanted to testify, you have the opportunity now.

A few pages later in the record, Mitchell asked [h]ow in the hell am I acting like an attorney when hes doing every fucking thing[?] The record then reflects the following discussion:

THE COURT: All right. Im not going to have this conversation with you. Are you going to testify?

MR. MITCHELL: I want to testify after this witness, after this witness.

THE COURT: You are not going to have this witness. We do not have another $2,000 for this witness, No. 1. [] No. 2, the witness cannot help you in any way.

MR. MITCHELL: You dont know that.

THE COURT: Ive just talked to [advisory counsel].

MR. MITCHELL: Hes not the attorney.

THE COURT: He has talked to that man.

MR. MITCHELL: What man?

THE COURT: Dr. Simon Ford.

MR. MITCHELL: Thats hearsay.

Later that same day, Mitchell stated: I want my DNA witness here. [] . . . [] Why cant he be here if the Court paid the bill? The court responded: Because he was not available.

2. Analysis

Mitchell asserts that the trial court violated his right to self-representation by allowing advisory counsel to assume too great a role, including engaging a DNA expert and then determin[ing] that the expert would not be needed for testimony. Accordingly, he argues that advisory counsel usurped Mitchells exclusive right, as counsel, to make tactical decisions. The record fails to support Mitchells position.

Where advisory counsel is appointed, the court retains authority to exercise its judgment regarding the extent to which such counsel may participate in trial proceedings. (People v. Bradford (1997) 15 Cal.4th 1229, 1368; accord, McKaskle v. Wiggins (1984) 465 U.S. 168, 174, 177179, 183 (McKaskle).) In McKaskle, the United States Supreme Court addressed whether a defendants right to self-representation had been violated by the participation of standby counsel, who were present at trial over the defendants objection. The defendant in that case, at times, requested that counsel not be allowed to interfere with his presentations in court. Nonetheless, outside the presence of the jury, standby counsel explained their views, including disagreement with the defendant, to the trial court, made motions, proposed strategies on the record, and suggested questions for the defendant to ask. When the defendant complained on appeal that standby counsels participation had impaired his right to represent himself, the reviewing court concluded: [N]o absolute bar on standby counsels unsolicited participation is appropriate or was intended. The right to appear [pro per] exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at least occasionally, be the accuseds best possible defense. Both of these objectives can be achieved without categorically silencing standby counsel. (McKaskle, supra, 465 U.S. at pp. 170, 172173, 176177, 180.)

The court imposed limits, however: First, the [pro per] defendant is entitled to preserve actual control over the case he chooses to present to the jury. This is the core of the Faretta right. If standby counsels participation over the defendants objection effectively allows counsel to make or substantially interfere with any significant tactical decisions, or to control the questioning of witnesses, or to speak instead of the defendant on any matter of importance, the Faretta right is eroded. [] Second, participation by standby counsel without the defendants consent should not be allowed to destroy the jurys perception that the defendant is representing himself. (McKaskle, supra, 465 U.S. at p. 178.) The court further stated: Faretta rights are adequately vindicated in proceedings outside the presence of the jury if the [pro per] defendant is allowed to address the court freely on his own behalf and if disagreements between counsel and the [pro per] defendant are resolved in the defendants favor whenever the matter is one that would normally be left to the discretion of counsel. (Id. at p. 179, fn. omitted.) The Supreme Court concluded that standby counsels participation outside the presence of the jury did not violate these limits because the defendant was given ample opportunity to present his own views and all conflicts were resolved in his favor. (Id. at p. 181.)

Here, Mitchell complains of advisory counsels participation in matters occurring outside the presence of the jury. First, we reject any argument that it was improper for advisory counsel to engage a DNA expert, Dr. Simon Ford, whose original purpose was to advise counsel regarding DNA issues so that he could in tu