Filed 10/20/15 P. v. Williams 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F067227
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F11904102)
                   v.

ANDRE WILLIAMS,                                                                          OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. James
Petrucelli, Judge.

         Candace Hale, 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, Brian G. Smiley and Michael A.
Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                       INTRODUCTION
       Andre Williams, also known as Andre Leon Williams, was convicted at the
conclusion of a jury trial of two counts of assault with a deadly weapon (Pen. Code,1
§ 245, subd. (a)(1), count 1 [samurai sword], count 3 [club]), and making a criminal
threat (§ 422, count 2). In a bifurcated proceeding, the jury found true allegations that
defendant was subject to a prior prison term enhancement (§ 667.5, subd. (b)) and two
prior serious felony convictions within the meaning of the three strikes law (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)).
       The trial court denied defendant’s motions for a new trial and his invitation to
strike the prior serious felony allegations pursuant to People v. Superior Court (Romero)
(1996) 13 Cal.4th 497. The court sentenced defendant to prison for terms of 25 years to
life on each count, ordering counts 1 and 3 to be served concurrently and count 2 to be
served consecutively to count 1.
       On appeal, defendant contends the trial court erred in sustaining the prosecutor’s
objections to defense counsel’s closing argument on the following matters: (1) defense
counsel’s paraphrasing the reasonable doubt instruction as a high level of certainty; (2)
defense counsel’s argument appealing to the jurors’ common sense concerning the
victim’s conduct; (3) defense counsel’s argument concerning how defendant came into
possession of the sword; and (4) defense counsel’s argument that defendant did not
assault the victim with a sword or a club. Defendant also contends the trial court
improperly denied his motion to represent himself. We affirm the judgment.
                                             FACTS
Prosecution Evidence
       Troy Agueros lived in the Shady Acres trailer park in Fresno in July 2011.
Defendant and his wife also lived in the trailer park across from Agueros. Agueros and

       1Unless   otherwise designated, all statutory references are to the Penal Code.


                                                 2.
defendant had been friends for about two years and worked together doing maintenance
projects around the trailer park, as well as work together on defendant’s boat.
       Agueros was outside his trailer when he saw defendant walking past late on the
evening of July 13, 2011. Defendant was agitated as he approached Agueros. Agueros
understood defendant was not supposed to be there that evening and asked defendant
what he was doing there. Defendant opened his jacket, exposing a large samurai sword.
Defendant said he was there “to fucking kill the neighbor and his wife” because they had
been in a fight earlier that day.
       Agueros told defendant to calm down because he was already in trouble and to let
the authorities handle the situation. Defendant, however, was beside himself with anger
and there was no reasoning with him. Defendant pulled out the sword, which appeared
real and dangerous. Although defendant had problems in the past with other tenants in
the trailer park, defendant had never directed anger toward Agueros. In a moment,
however, defendant turned on Agueros and Agueros did not recognize defendant.
       Defendant cussed at Agueros, telling him he was also part of the problem
defendant was having, and he started swinging the three-foot long sword. Agueros was
standing by a small fenced area with shrubbery that was between him and defendant.
Agueros kept moving back and forth around this area to keep his distance from
defendant, who was still swinging the sword. At one point defendant swung the sword so
close to Agueros that it “scared the hell out of [him].”
       Defendant continued swinging the sword so hard that Agueros “could hear the air
coming off of it.” Agueros was afraid to extend his arm for fear he would lose his hand
or fingers. Agueros was doing some “high stepping” to evade defendant. Agueros
estimated he was running away from defendant for 10 minutes. Agueros threw a
barbeque in defendant’s path and jumped over a small picnic table. The two were eight
to nine feet apart. Agueros continued to plead with defendant to stop, but defendant
seemed deranged.

                                             3.
       Defendant threatened to mutilate Jake, Agueros’s elderly dog, and to kill
Agueros’s mother. Agueros ran away from defendant to the back of his own trailer and
stood by his large Bronco truck for about 10 minutes. Agueros then went into his trailer
and locked the door. From inside his trailer, Agueros saw defendant enter into a nearby
trailer owned by Richard Martin. For the first time in his life, Agueros called the police.
When deputies from the Fresno County Sheriff’s Office arrived, defendant was still
inside Martin’s trailer.
       On cross-examination, Agueros said he saw three neighbors come out of their
trailers during the incident. Martin was one of those. When Martin came out of his
trailer, everyone looked at each other and defendant dropped the sword to his side and
stopped hollering for a moment. Agueros did not call out for help from Martin because
he thought the situation was “obvious.” Martin turned away and was gone.
       Sheriff’s deputies arrived at the trailer park at 11:20 p.m. After taking a statement
from Agueros, deputies contacted defendant and found him belligerent, profane, and
uncooperative. Defendant smelled of alcohol. When one of the deputies shouted out that
she could not find the sword, defendant replied there was not a sword. Martin also told
deputies there was no sword. Deputies followed Martin to the back of his trailer where
he lifted a piece of carpet and uncovered the sword. The sword was 20 to 24 inches long
and had a plastic sheath.
       Three days after the sword incident, during the early morning hours of July 16,
2011, Agueros was asleep inside his trailer when he was awakened by the loud noise of
something beating on the outside of his trailer. It sounded like a tree had fallen on his
trailer. After four or five strikes, Agueros heard screaming. Agueros recognized
defendant’s voice. Agueros called 911, heard the dial tone, but then tossed his phone on
the bed. Agueros opened the door to his trailer to tell defendant to get out of there and
leave him alone. Agueros was concerned because the area defendant was beating on was



                                             4.
close to a window and Agueros was concerned defendant was going to break it out. Prior
to this incident, the trailer had only one dent on it from a tree.
       As Agueros opened the door, defendant pulled the door open and reached into the
trailer with a two-inch round, two-foot long bat, swinging the bat at Agueros’s head.
Agueros raised his hand to deflect the bat, which then hit Agueros’s hand. Defendant
“busted” Agueros’s hand. Agueros believed the bat would have knocked him “clean out”
if defendant had caught Agueros in the head with the bat. Defendant was agitated and
appeared to Agueros to be out of control. Defendant ran away from the trailer and out of
sight. Agueros called 911 to report the incident.
       Defendant was later arrested in the trailer of a neighbor. He appeared to be
sleeping or passed out on the couch. Defendant was aggressive, belligerent, and smelled
of alcohol. The bat or club was not found.
Defense Evidence
       Defendant testified that on the evening of July 13, 2011, he was visiting in the
trailer park with his neighbor, Jerry Hernandez. Defendant accepted an offer by
Hernandez to take one of Hernandez’s swords, a samurai sword. When defendant left
Hernandez’s trailer, he placed the sword in the waistband of his shorts. As defendant was
walking through the trailer park, Agueros asked defendant what he was doing there.
Defendant said he accused Agueros of spreading rumors about him and he began to cuss
at Agueros. The two argued.
       Defendant lifted his shirt because of what Agueros said to him and then put his
shirt back down. Defendant admitted he showed the sword and the scabbard to Agueros,
but denied removing the sword from the scabbard.
       Martin testified he heard an argument between defendant and Agueros. Martin
invited defendant into his trailer to calm down. Martin did not hear defendant threaten
Agueros. Martin did not notice defendant was carrying a sword until he had been inside
his trailer for a few minutes. Defendant told Martin he was angry at Agueros for

                                               5.
“running his mouth about things.” Martin thought defendant was cooperative when
deputies arrived.
       Defendant testified he arrived at Shady Acres on foot in the early morning on
July 16, 2011. Defendant walked by Agueros’s trailer, but never saw him. Hernandez
invited defendant into his trailer for coffee and defendant fell asleep on the couch. The
next thing defendant knew, he was awakened by deputies and taken to a patrol car in
handcuffs. Defendant denied having a bat or club that morning and swinging it at
Agueros.
                                      DISCUSSION
1.     Reasonable Doubt Argument
       During closing argument to the jury, defense counsel described reasonable doubt
as the highest proof our justice system recognizes and added it required the People to
prove their case by “a high level of certainty.” The trial court sustained the prosecutor’s
objection and instructed the jury to disregard the statement of counsel because it “is not
the law” and the jury would “be instructed on the law by the [c]ourt.” Defendant argues
his trial counsel’s argument was an accurate legal statement and the prosecutor’s
objection to an accurate statement of the law lowered the prosecution’s burden of proof.
Defendant argues this denied him his Fourteenth Amendment rights to due process and a
fair trial. We disagree.
       California law imposes a duty on the trial court to instruct the jury on the
presumption of innocence in favor of the defendant and the prosecution’s duty of proving
the defendant’s guilt beyond a reasonable doubt. (§ 1096; People v. Aranda (2012) 55
Cal.4th 342, 352-354.) The trial court’s statutory obligation to instruct the jury on these
principles is satisfied by instructing the jury with CALJIC No. 2.90 or CALCRIM
No. 220. The failure to give the instruction does not necessarily constitute state law
error. Although it is preferred, the standard instruction is not mandatory. (People v.



                                             6.
Aranda, supra, at p. 354.) The federal due process clause does not require a trial court to
use any particular phrase or form of words when instructing the jury on this principle.
The dictates of due process are satisfied so long as the trial court’s instructions to the jury
express the substance of the presumption of innocence. (Id. at p. 355; Taylor v. Kentucky
(1978) 436 U.S. 478, 485.)
       The constitutionality of the standard reasonable doubt instruction under the due
process clause has been upheld by the California and United States Supreme Courts.
(People v. Freeman (1994) 8 Cal.4th 450, 501-504; Victor v. Nebraska (1994) 511 U.S.
1, 5-10.) Our high court has cautioned that modifying the standard instruction is perilous
and generally should not be done. (People v. Freeman, supra, at p. 504.) As this court
noted over a decade ago, innovative and well-intentioned efforts by trial courts to explain
the concept of reasonable doubt have created confusion, uncertainty, and have led to
reversals on appeal. (People v. Johnson (2004) 119 Cal.App.4th 976, 986.) Defense
counsel’s interpretation of the phrase “reasonable doubt” during closing argument was
itself subject to the kind of confusion and uncertainty that can lead to error.
       The trial court instructed the jury with CALCRIM No. 220,2 one of the standard
instructions on reasonable doubt. On appeal, we presume the jurors understand,
correlate, and follow the court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834,


       2The trial   court instructed the jury with CALCRIM No. 220 as follows:
        “A defendant in a criminal case is presumed to be innocent. This presumption requires
that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you that the
People must prove something, I mean they must prove it beyond a reasonable doubt.
        “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that
the charge is true. The evidence need not eliminate all possible doubt, because everything in life
is open to some possible or imaginary doubt.
        “In deciding whether the People have proved their case beyond a reasonable doubt, you
must impartially compare and consider all the evidence that was received throughout the entire
trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled
to an acquittal and you must find him not guilty.”


                                                7.
852; People v. Hernandez (2010) 181 Cal.App.4th 1494, 1502; People v. Ibarra (2007)
156 Cal.App.4th 1174, 1181.)
         The jury is presumed to have followed what is unquestionably a correct statement
of the prosecution’s burden of proof. Under these circumstances, there was no way the
jury could have applied a lower burden of proof on the prosecution even if, as defendant
argues, his counsel fashioned an accurate interpretation of the reasonable doubt
instruction; the jury was instructed to follow the trial court’s legally accurate instruction.
         We conclude defendant’s counsel was not precluded from arguing, from the
evidence adduced at trial, why the jury should harbor reasonable doubt. The defendant
was not deprived of due process and the prosecution did not have a lower burden of
proof.
2.       Prosecutor’s Objections During Closing Argument
         Defendant argues the trial court improperly sustained objections by the prosecutor
and advised the jury to disregard what defense counsel said because counsel made
accurate and appropriate factual and legal arguments in his closing statement. Defendant
contends the trial court violated his Sixth and Fourteenth Amendment rights to effective
assistance of counsel, a fair trial, and due process by improperly limiting defense
counsel’s closing argument. We disagree.
         A.     Reasonable Doubt Instruction
         Defendant reiterates his contention the court erred in sustaining the prosecutor’s
objection to defense counsel’s depiction of reasonable doubt as a “high level of
certainty,” arguing that in addition to lowering the prosecution’s burden of proof, it also
“encouraged the jury to disregard all [of] counsel’s arguments.”
         After the trial court sustained the prosecutor’s objection, defense counsel
extensively argued the jury had to believe beyond a reasonable doubt that Agueros was
telling the truth and determine whether he was a credible witness. In doing so, defense



                                               8.
counsel marshalled the evidence he believed undermined Agueros’s credibility and
argued it to the jury in the light most favorable for defendant. Defense counsel had the
opportunity to argue all of the inferences that could be drawn from the testimony and had
the last clear chance to persuade the jury “that there may be reasonable doubt of the
defendant’s guilt.” (Herring v. New York (1975) 422 U.S. 853, 862.) We reject this
contention.
       B.      Defense Counsel’s Invitation to the Jury to Apply Common Sense to
               Victim’s Account
       During his closing argument, defense counsel questioned whether the People’s
case made sense and appealed to the jury to use its common sense in evaluating the
evidence. The trial court sustained an objection by the prosecutor that this statement
misstated the law and instructed the jury to disregard counsel’s comment. Defendant
contends this was error. We disagree.
       In closing argument, defense counsel noted that during the alleged incident with
the sword, Agueros was ducking, running, high stepping, and jumping over picnic tables.
Defense counsel asked the jury whether this account sounded reasonable and appealed to
their common sense. Defense counsel added that at this time, Martin walked out of his
trailer and looked at Agueros without exchanging words. Although Agueros said he was
being attacked with a sword, he did not yell out to Martin for help.
       Defense counsel described this as a “weird experience.” Defense counsel asked
the jury whether under the circumstances of an attack it was reasonable to believe Martin
would turn around and go back into his trailer after merely staring at Agueros. Counsel
asked the jurors whether this appealed to their common sense. Counsel then referred to
another tenant named Bill coming out of his trailer and again argued that Agueros failed
to call out for help.
       A third time, defense counsel asked the jurors whether this appealed to their
common sense. On this occasion, the prosecutor objected that counsel misstated the law,


                                            9.
the trial court sustained the objection and advised the jury to disregard counsel’s
statement.
       The People point out that defense counsel asked jurors whether Agueros’s account
appealed to the jurors’ common sense multiple times during closing argument before,
during, and after the portion of oral argument reviewed above. There were over a dozen
such references by defense counsel during oral argument and only one objection was
brought by the prosecutor and sustained by the trial court after defense counsel appealed
to the jury to use common sense. Defense counsel was not foreclosed from asking the
jurors to apply their common sense to the evidence presented at trial. Even if the trial
court erred in sustaining the single objection by the prosecutor, the error was harmless
beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
       C.     Instruction to Disregard Counsel’s Reference to Defendant’s Choice to
              Testify
       During closing argument, defense counsel argued defendant could have hidden
behind his Fifth Amendment right not to testify but instead testified. The trial court
sustained objections by the prosecutor to these statements and advised the jury to
disregard counsel’s statements. Defendant contends the trial court was confusing defense
counsel’s argument with the error caused when a prosecutor improperly comments on the
defendant’s failure to testify in violation of Griffin v. California (1965) 380 U.S. 609
(Griffin). Defendant argues Griffin does not limit defense counsel’s commentary on a
defendant’s choice to testify, and it was error for the trial court to sustain the prosecutor’s
objection.
       We disagree with defendant’s characterization of his counsel’s statement, which
appeared to be leading toward an argument that defendant’s testimony was more reliable
because he testified rather than remaining silent. In effect, defense counsel was
attempting to turn the Griffin rule, which acts as prophylactic shield to protect a
defendant from improper prosecutorial commentary on his or her exercise of the Fifth


                                              10.
Amendment right to not testify, into a sword to heighten the defendant’s credibility for
testifying. To do so would undermine over a century of jurisprudence concerning how
triers of fact evaluate the credibility of witnesses.
       The People note it has long been the case that a trial court may instruct on matters
affecting the credibility of a testifying defendant in the same manner that it instructs a
jury to consider any other witness. A 19th century decision by the United States Supreme
Court set forth the basis for the Griffin rule and noted that a testifying defendant’s
credibility is to be challenged and weighed in the same manner “as any other witness.”
(Reagan v. United States (1895) 157 U.S. 301, 305-306, 308.) The People argue the jury
fairly evaluated defendant’s credibility because the court instructed the jury with
CALCRIM No. 226, the instruction guiding the jury on how to evaluate the testimony of
all witnesses, which included defendant. We agree with the People.
       The People cite to an opinion of a sister jurisdiction that reviewed a criminal
defendant’s assertion of error because the trial court denied his request for an instruction
to the jury stating that although he testified, he was not required to do so. In State v.
Walden (1984) 311 N.C. 667, 676-677, the Supreme Court of North Carolina rejected this
suggested corollary to the Griffin rule. The Walden court noted the public policy served
by instructing the jury pursuant to General Statutes of North Carolina section 8-54 (G.S.
8-54)—that no negative presumption can be used against a defendant who has not
testified—and reasoned as follows in holding a defendant does not have a right to an
instruction highlighting the fact he or she did testify:

       “The policy served by instructing the jury upon defendant’s request
       concerning G.S. 8-54, when he does not testify, is an attempt to ensure that
       the jury will not draw a negative or unfavorable inference from the
       defendant’s failure to testify. However, if the defendant chooses to testify
       in his own behalf, as the defendant did here, there exists no reason to
       instruct the jury on defendant’s decision to testify since the jury does not
       have any reason to draw a negative or unfavorable inference from that
       circumstance. Defendant, however, is not entitled to an instruction the


                                              11.
       inference of which would be to insure that the jury look favorably upon his
       willingness to testify. Therefore, we hold that when the defendant testifies,
       the trial court is not required to instruct the jury, upon request or otherwise,
       that the defendant cannot be compelled to testify.” (State v. Walden, supra,
       311 N.C. at p. 677.)
       Although Walden analyzed a proposed jury instruction by a criminal defendant,
we find its reasoning equally persuasive to oral argument by defense counsel. We agree
with the People that defense counsel was not entitled to use the fact his client testified to
establish his credibility simply because he had a right not to testify under the Fifth
Amendment. The trial court instructed the jury with CALCRIM No. 226, which set forth
all the criteria jurors are to employ in evaluating every witness’s credibility, including
testifying defendants. The trial court did not err in sustaining the prosecutor’s objection
to this portion of defense counsel’s closing argument.
       D.     Objection to “Speculative” Statement by Defense Counsel
       Defense counsel also argued defendant went to Jerry Hernandez’s home and
Hernandez offered defendant a sword. In recollecting the trial testimony, defense counsel
stated defendant “saw that Mr. Hernandez had several swords, relics, whatnot, on his
shelf. And he asked, I believe, Mr. Hernandez, the testimony is going to show that
Mr. Hernandez said, hey, look, take one.” The trial court sustained the prosecutor’s
objection that this statement was speculative and told the jury to disregard it. Defendant
argues this was error. Even if this was error, it was necessarily harmless because defense
counsel was permitted to continue with the gist of his argument on this point.
       Immediately after the objection was sustained, defense counsel argued defendant
took a sword from Hernandez and this was how he was in possession of a sword.
Counsel continued that defendant walked from Hernandez’s trailer to his own trailer,
which was across from Agueros’s trailer, and had an intense verbal confrontation with
Agueros. Counsel argued this was why defendant was upset but, even so, Martin never
heard defendant threaten Agueros, Agueros’s mother, or Agueros’s dog.



                                             12.
       The prosecutor was apparently objecting to defense counsel’s use of the phrase “I
believe” as speculative. The objection, however, did not deter defense counsel from
emphasizing his point that defendant was in possession of a samurai sword offered to him
by Hernandez and then entered into what amounted to a shouting match with Agueros
while he was in possession of the sword. Defense counsel’s larger point was made to the
jury, and defendant was not deprived of his counsel’s closing argument because the trial
court sustained the prosecutor’s objection.
       E.     Defense Counsel’s Argument that there was no “Assault” with a Club
       Toward the end of closing argument, defense counsel stated defendant did not
assault Agueros with a sword or a club, and he did not make a criminal threat. The
prosecutor objected this was an improper legal conclusion by defense counsel because
that determination was for the jury. Defense counsel replied he was making an argument.
The trial court sustained the objection and told defense counsel to move on with his
argument. Defendant contends it was error for the trial court to sustain the objection.
The People reply that even if the objection was improperly sustained, any error was
harmless. We agree with the People.
       During other stages of his argument, defense counsel argued, without interruption
by the prosecutor, that defendant did not commit any offense. Defense counsel argued at
no point did defendant make any threat to Agueros, his mother, or his dog, and “[a]t no
point in time did [defendant] chase [Agueros] with a sword.” Counsel characterized the
incident as a verbal disagreement. Counsel further argued defendant went to
Hernandez’s trailer, asked for coffee, and fell asleep in Hernandez’s trailer. Counsel
concluded his argument to the jury by stating the People had to prove their case beyond a
reasonable doubt, and he expressed confidence the jury would find defendant not guilty
of the charges.




                                              13.
       Defendant correctly notes his trial counsel did nothing wrong in arguing defendant
did not commit an assault or make a criminal threat. Defense counsel was marshalling
facts he believed demonstrated defendant did not commit an offense. Ideally, the
prosecutor should have exercised restraint as defense counsel made this concluding point
to the jury, and the trial court could have advised the jury that counsel was making an
argument. We do not find, however, defendant’s trial counsel was foreclosed from
making an oral argument based on the evidence supporting defendant’s theory of the
case. Where, as here, a trial court errs in sustaining an objection, the error is harmless
when the jury is free to consider the weight to accord to each witness’s testimony and the
trial court’s ruling did not hamper the defendant’s ability to argue what inferences should
be drawn from the evidence and to otherwise present a defense. (People v. Harris (2013)
57 Cal.4th 804, 853.) We conclude defendant had the ability to present his theory of the
case to the jury, and any error in sustaining the prosecutor’s objection was harmless.
3.     Defendant’s Faretta Motion
       After the trial court had announced the jury’s verdicts, and just as the bifurcated
hearing on the truth of defendant’s prior convictions was to commence, defendant
brought a motion to represent himself pursuant to Faretta v. California (1975) 422 U.S.
806 (Faretta). After conducting a hearing, the trial court denied defendant’s motion.
Defendant contends the trial court erred in denying his motion. We disagree.
       A.     Prior Proceedings and First Faretta Hearing
       On March 8, 2012, over 10 months prior to the commencement of the trial,
defendant’s first Faretta motion was granted. Between March 8, 2012, and June 14,
2012, defendant sought and was granted five continuances. On June 14, 2012, the trial
court granted defendant’s motion to be relieved as counsel of record and appointed the
public defender to represent defendant.




                                             14.
       The jury was empaneled on January 28, 2013, and reached its verdict on the
substantive allegations on February 1, 2013. Although the trial court initially understood
defendant would be waiving his rights and admitting the truth of his prior convictions,
defense counsel conferred with defendant and told the court defendant wanted a jury trial
on the bifurcated issues. The court explained to defendant that it was unavailable for any
proceedings the following week and a trial on the bifurcated issues would have to be
postponed until February 11, 2013. The case was continued.
       On February 11, 2013, defendant personally made an oral motion for a new trial
on the ground the jury was tainted and an oral motion pursuant to People v. Marsden
(1970) 2 Cal.3d 118. Both motions were denied. After the Marsden hearing, defendant
made a new Faretta motion to represent himself. Defendant told the court he believed it
would be in his best interest to invoke Faretta and represent himself because he was not
comfortable with defense counsel anymore. The court noted defense counsel had
represented defendant, it was a critical stage of the proceedings, and part of the court’s
responsibility was to protect defendant’s rights.
       The court explained to defendant the bifurcated proceeding was a specific process
and the court did not believe the same standard applied for defendant to represent
himself. The court asked defendant to address these points. Defendant replied he
understood the seriousness of this phase of the trial, but given the paperwork and
opportunity to research and do a thorough investigation, he could do the same job as his
attorney. The court observed there was a jury waiting and even with research defendant
would not be prepared given the specific legal issues involved.
       The court further noted its concern defendant had been “bouncing back and forth”
between representing himself and having appointed counsel. After noting defense
counsel had done an excellent job, the court found defendant was “just not happy with the
verdict and you’re trying to be obstreperous.” The court denied the second Faretta
motion.

                                             15.
       B.      Analysis
       A trial on prior convictions is a phase of the larger trial proceeding. In a
bifurcated trial, a defendant should make a decision concerning self-representation prior
to the commencement of the whole trial. A request for self-representation at a reasonable
time prior to the beginning of the trial on the primary offense is consistent with Faretta
and California precedent. (People v. Givan (1992) 4 Cal.App.4th 1107, 1114.) A Faretta
motion made at the midtrial stage is addressed to the sound discretion of the trial court
and a defendant does not have an unconditional right to self-representation. (People v.
Givan, supra, at p. 1115.)
       Even though untimely, it is still error for a trial court to fail to conduct a Faretta
hearing and to summarily deny a midtrial request for self-representation. (People v.
Rivers (1993) 20 Cal.App.4th 1040, 1047.) If a defendant makes a timely Faretta
request, his or her right to do so is unconditional, and the trial court must grant the
request. A timely request, however, is one made within a reasonable time before the
beginning of trial. A later request lies within the trial court’s sound discretion to deny.3
(People v. Windham (1977) 19 Cal.3d 121, 128; People v. Nicholson (1994) 24
Cal.App.4th 584, 594-595; People v. Rivers, supra, at p. 1048.) If a defendant’s Faretta
motion is untimely, it is his or her burden to justify the delay.
       Here, the trial court conducted a hearing on defendant’s motion to represent
himself. Defendant brought his motion midtrial, a stage in which the trial court could
exercise its sound discretion and deny the motion without a per se violation of
defendant’s constitutional right to represent himself. Defendant had a prior history of
representing himself in this case and obtaining multiple continuances. He later




       3In People v. Miller (2007) 153 Cal.App.4th 1015, 1023-1024, this court distinguished
Rivers, holding that a defendant who brought a Faretta motion after trial and prior to sentencing,
had not brought the motion to represent himself during trial as occurred in Rivers.


                                               16.
substituted himself out for representation by an attorney. The trial court had a legitimate
basis for its concern defendant was manipulating the process of his trial.
       Furthermore, defendant’s comments to the trial court during the Faretta hearing
made it clear he was going to seek a continuance of the bifurcated proceeding, even
though the jury was waiting to finish its duties. The burden was on defendant to justify
such a delay. Given defendant’s prior history of representing himself, seeking multiple
continuances, and substituting himself out for an attorney, as well as the fact defendant
belatedly brought his motion during the trial, we do not find the trial court abused its
discretion in denying defendant’s Faretta motion.
                                      DISPOSITION
       The judgment is affirmed.

                                                          ___________________________
                                                                              PEÑA, J.
WE CONCUR:


 __________________________
LEVY, Acting P. J.


 __________________________
DETJEN, J.




                                             17.
