Filed 7/21/17 P. v. Keyes 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,
Plaintiff and Respondent,
v.
JOSHUA REID KEYES,
Defendant and Appellant.

A149473

(Humboldt County
Super. Ct. No. CR1601038)


Appellant Joshua Reid Keyes appeals from the trial court’s judgment following his guilty plea to robbery and attempted robbery and admission to a prior strike conviction. He contends the trial court erred in its response to his request to represent himself at an earlier point in the criminal proceeding. (See Faretta v. California (1975) 422 U.S. 806 (Faretta).) We affirm.
In May 2016, appellant was charged by information with first degree residential robbery (Pen. Code, § 211), attempted second degree robbery (§§ 664, 211), and two counts of possession of a firearm by a felon (§ 29800, subd. (a)). The information alleged appellant personally used a firearm in the commission of the attempted robbery (§ 12022.53, subd. (b)), and that he had suffered five prison priors (§ 667.5(b)) and one strike prior (§ 667(b)–(i)). The robbery charge arose out of a February 18 home invasion robbery, and the attempted robbery charge arose out of a February 10 attempted robbery of the victim outside his home.
On May 6, 2016, prior to the filing of the information, the trial court conducted a motion regarding appellant’s request for substitution of counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. The court denied the Marsden motion and appellant stated, “Can I go pro per?” The court responded, “Well, we’re not going talk about that today. The reality is, is that you have a right to represent yourself, but you have to be able to – in fact, we’ll give you the form. You can fill it out if you want to address that in regards to it.” A bit later in the hearing the trial court told appellant “it would not seem to me to make sense” for appellant to represent himself because “I would doubt you would do a better job for yourself” than appointed counsel, “who is an experienced felony deputy, who has been successful in a number of cases and has represented people vigorously in these courts.” At the end of the May 6 hearing the court told appellant, “[y]ou can have that Faretta [form] filled out, and we will talk about that” at the next hearing.
At the start of the next hearing, on May 11, 2016, the trial court stated, “When we were last here I did hand you, Mr. Keyes, the Faretta waiver that would be required since you did make a comment that you may wish to represent yourself. [¶] Is that still your desire?” Appellant responded, “I don’t know how,” and the court asked “So you understand that you have counsel in regards to the case, correct?” Appellant responded in the affirmative; the court said “All right” and then proceeded to discuss the need to continue the preliminary hearing. The court minutes for the hearing state, “Def. refuses to fill out Faretta paperwork/Elvine-Kreis will remain as his attorney.” Appellant cites to no place in the record below where he again brought up his request to represent himself. On July 19, appellant pled guilty to the robbery and attempted robbery charges, admitted the prior strike conviction, and was sentenced to prison for 9 years and 4 months. Appellant obtained a certificate of probable cause, and this appeal followed.
In Faretta, supra, 422 U.S. 806, the United States Supreme Court held that a defendant in a criminal case has a federal constitutional right to represent himself. (Id. at p. 807.) “ ‘When “a motion to proceed pro se is timely interposed, a trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be.” ’ ” (People v. Butler (2009) 47 Cal.4th 814, 824.) However, “A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied.” (People v. Marshall (1997) 15 Cal.4th 1, 23.)
In the present case, appellant argues the trial court refused to determine whether he voluntarily and intelligently elected to represent himself and instead “summarily dismissed the request because [appellant] had not filled out the court’s Faretta form.” The record does not support appellant’s contention. When appellant requested to represent himself immediately after denial of his Marsden motion on May 6, 2016, the trial court told him it would not be a good idea and the matter would not be addressed in that hearing. But the court also told appellant he had the right to represent himself and provided appellant a form for him to review and complete. At the start of the next hearing, the trial court on its own initiative brought up appellant’s request to represent himself, asking whether that was still appellant’s desire. Appellant gave a negative, albeit somewhat ambiguous response (“I don’t know how.”), acknowledged he presently had counsel, and made no further effort to obtain a ruling on his request to represent himself. Assuming appellant’s comments at the May 6 hearing were sufficiently clear to constitute a request for self-representation under Faretta, the trial court did not rule on the motion because appellant abandoned it. (See People v. Tena (2007) 156 Cal.App.4th 598, 609–610 [“Numerous courts have held that after a defendant invokes the right to self-representation, a waiver may be found if it reasonably appears that the defendant abandoned the request.”]; People v. Skaggs (1996) 44 Cal.App.4th 1, 7–8 [“If a Faretta motion was made, it was not ruled upon. By failing to request such a ruling and never raising the issue again, [defendant] abandoned the motion he now claims he made.”].)
Appellant asserts he “did not need to repeat his request, as the court’s actions and words proved that a repeat request would have been a futile act.” We disagree. The trial court did require appellant to fill out a form and did discourage him from representing himself, but appellant cites no authority that it was improper for the court to do so. (See People v. Silfa (2001) 88 Cal.App.4th 1311, 1322 [Faretta form may properly be used as “a means by which the judge and the defendant seeking self-representation may have a meaningful dialogue concerning the dangers and responsibilities of self-representation”]; cf. People v. Dent (2003) 30 Cal.4th 213, 219 [defendant need not renew Faretta motion that was unequivocally denied].) The trial court did not err in its handling of appellant’s request to represent himself.
DISPOSITION
The trial court’s judgment is affirmed.









SIMONS, J.



We concur.




JONES, P.J.




BRUINIERS, J.