Filed 5/12/14 P. v. Ruiz CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B247786

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. PA073086)
         v.

ALAVRO RUIZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Cynthia L. Ulfig, Judge. Affirmed.
         Sharon Fleming, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Michael R. Johnsen and
Jonathan M. Krauss, Deputy Attorneys General, for Plaintiff and Respondent.


                                              __________________
       The trial court granted Alvaro Ruiz’s request to represent himself prior to
sentencing to permit him to move to withdraw his no contest plea to a charge of
aggravated assault. Shortly thereafter the court revoked Ruiz’s self-represented status
when it learned he had possessed a dangerous weapon (a shank) in the courtroom. On
appeal from the judgment Ruiz contends the court’s decision constituted structural error.
We affirm.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Ruiz was convicted of robbery and possession of methamphetamine in February
2011. He was sentenced to an aggregate state prison term of 26 years eight months.
       While incarcerated Ruiz and several other inmates attacked fellow inmate Jason
Barrios. Ruiz was charged in a felony complaint with one count of assault by means of
force likely to produce great bodily injury with a special allegation he had personally
inflicted great bodily injury on Barrios. It was also specially alleged Ruiz had previously
suffered one prior serious or violent felony conviction within the meaning of Penal Code,
section 667, subdivision (a), and the three strikes law and had served two separate prison
terms for felonies. Ruiz pleaded not guilty and denied the special allegations.
       On September 13, 2012 Ruiz withdrew his not guilty plea, waived his right to a
preliminary hearing, pleaded no contest to the aggravated assault charge and admitted
one prior prison term allegation; the remaining special allegations were dismissed.
Pursuant to the negotiated agreement, Ruiz was to be sentenced to a two-year state prison
term to be served consecutively to the previously imposed sentence. Ruiz waived time
for sentencing.
       On December 17, 2012 Ruiz indicated he wanted to withdraw his plea. His
counsel informed the court, because she believed there were no valid grounds for such a
motion, Ruiz might assert his Sixth and Fourteenth Amendment rights to represent
himself under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525]
(Faretta).
       Ruiz appeared for sentencing on February 8, 2013 and asked to represent himself.
The trial court granted the motion. Later the same day a deputy sheriff reported finding a

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shank in Ruiz’s rectum during a routine search before Ruiz boarded the bus to return to
jail from court. The trial court described the shank as “a metal piece of perhaps a blade
or some other items [sic] that clearly could be used as a dangerous and deadly weapon.”
Ruiz’s self-represented status was summarily revoked. After observing that Ruiz was a
known gang member with a criminal record, which included recent and pending cases
involving offenses committed while incarcerated,1 the court concluded Ruiz had sought
self-represented status and the accompanying in-custody privileges to facilitate future
criminal activity. The court also found, because Ruiz had possessed the shank while he
was in the courtroom earlier that day, he presented “a great harm to people within the
court system.”
       On February 11, 2013 the trial court reappointed counsel to represent Ruiz,
confirmed Ruiz still wanted to represent himself and conducted a hearing to determine
whether his self-represented status should remain revoked. At the conclusion of the
hearing, the court reiterated its earlier finding that permitting Ruiz to represent himself
seriously threatened the safety and security of those in the courtroom and the jail. At the
request of Ruiz’s counsel, however, the court continued the hearing for further argument.
       On February 22, 2013 Ruiz’s counsel argued that Ruiz was entitled to represent
himself to pursue a motion to withdraw his plea. Counsel also maintained, rather than
terminate Ruiz’s self-represented status, the court should consider imposing less severe
sanctions to address its security concerns.
       In ruling Ruiz’s self-represented status should remain revoked, the trial court
reiterated the factors in support of its decision: The nature of the shank itself, a piece of
metal three to four inches in length with a sharpened tip, which, the court observed, Ruiz
could only have possessed to cause death or serious bodily injury to others in the
courtroom and jail; Ruiz’s criminal record and gang membership; and his recent history
of assaultive conduct and other offenses, committed with confederates against fellow


1
      On May 3, 2012 Ruiz had been arrested while in custody and charged with
conspiracy, extortion and attempted extortion of money from other inmates.

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inmates. The court concluded Ruiz believed he had little to lose by committing
additional crimes while incarcerated since he was already serving a lengthy state prison
term and intended to use the privileges available to self-represented defendants, possibly
with the assistance of others, to harm individuals in the courtroom and the jail.
       Ruiz objected to the trial court’s decision, stating he had always been respectful in
the courtroom, and adding, “Nobody’s life is in danger right now. What occurs outside
the courtroom is a whole different story.”
       At the March 21, 2013 sentencing hearing Ruiz moved to replace his appointed
counsel (People v. Marsden (1970) 2 Cal.3d 118). During the in camera hearing, Ruiz
explained he made a Marsden motion because the trial court had repeatedly refused to
restore his self-represented status. Defense counsel again told the court she had advised
Ruiz there were no grounds for a motion to withdraw his plea. The court reviewed the
transcript of the plea hearing with Ruiz and denied his Marsden motion. In accordance
with the plea agreement, the court then sentenced Ruiz to a two-year state prison term for
aggravated assault with a prior prison term enhancement, consecutive to the sentence he
was already serving. Ruiz filed a timely notice of appeal and obtained a certificate of
probable cause.
                                      DISCUSSION
       1. Standard of Review
       We review a trial court’s decision to revoke a defendant’s self-represented status
for an abuse of discretion. (People v. Williams (2013) 58 Cal.4th 197, 252.) We “accord
due deference to the trial court’s assessment of the defendant’s motives and sincerity as
well as the nature and context of his misconduct and its impact on the integrity of the trial
in determining whether termination of Faretta rights is necessary to maintain the fairness
of the proceedings.” (People v. Carson (2005) 35 Cal.4th 1, 12; accord, Williams, at
p. 252.)
       2. Governing Legal Principles
       A criminal defendant has a right to represent himself or herself at trial under the
Sixth Amendment to the United States Constitution. (Faretta, supra, 422 U.S. at

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pp. 835-836; People v. Williams, supra, 58 Cal.4th at p. 252.) “‘A trial court must grant a
defendant’s request for self-representation if the defendant knowingly and intelligently
makes an unequivocal and timely request after having been apprised of its dangers.’
[Citation.] Erroneous denial of a Faretta motion is reversible per se. [Citation.] [¶]
However, the right of self-representation is not absolute. ‘[The] government’s interest in
ensuring the integrity and efficiency of the trial at times outweighs the defendant’s
interest in acting as his own lawyer.’ [Citation.] ‘The right of self-representation is not a
license to abuse the dignity of the courtroom. Neither is it a license not to comply with
relevant rules of procedural and substantive law.’” (Williams, at pp. 252-253.)
          A trial court may terminate a defendant’s self-represented status for misconduct
that seriously threatens the core integrity of the trial, whether or not that misconduct
occurs in the courtroom. (People v. Carson, supra, 35 Cal.4th at p. 6.) “Ultimately, the
effect, not the location, of the misconduct and its impact on the core integrity of the trial
will determine whether termination is warranted.” (Id. at p. 9.) In other words, “[w]hen
a defendant exploits or manipulates his in propria persona status to engage in such
[threatening or intimidating] acts, wherever they may occur, the trial court does not abuse
its discretion in determining he has forfeited the right of continued self-representation.”
(Ibid.)
          When determining whether termination of a defendant’s self-represented status is
appropriate, the trial court should consider the nature of the misconduct, its impact on the
trial proceedings, the availability and suitability of other sanctions, whether the defendant
was warned that particular misconduct would result in termination, and whether the
defendant intentionally sought to disrupt and delay the trial. (People v. Carson, supra,
35 Cal.4th at p. 10.) The defendant’s intent to disrupt is not a “necessary condition,” but
is relevant to the effect of the misconduct on the trial proceedings. (Ibid.) “Each case
must be evaluated in its own context, on its own facts . . . .” (Ibid.; see, e.g., People v.
Williams, supra, 58 Cal.4th at pp. 253-255 [defendant’s self-represented status properly
revoked for using dilatory tactics].)



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       3. The Trial Court Did Not Abuse Its Discretion in Revoking Ruiz’s Right to Self-
          representation
       In People v. Butler (2009) 47 Cal.4th 814, the trial court granted defendant’s
pretrial Faretta motion in a death penalty case but then revoked his self-represented
status because of incidents of misconduct in jail that created security risks. (Id. at
pp. 819-821.) On one occasion defendant had concealed a metal shank in his rectum
prior to entering the courtroom. (Id. at p. 820.) The trial court subsequently granted
defendant’s renewed Faretta motion, but revoked his self-represented status a second
time after learning that jailhouse restrictions on defendant’s privileges had prevented him
from being ready for trial. (Id. at pp. 822-823.) The second revocation was based on
defendant’s impaired ability to represent himself, not his prior misconduct. (Ibid.) To
the contrary, the trial court stated defendant’s instances of out-of-court misconduct were
not a concern; the court could handle him in the courtroom. (Id. at p. 822.) In light of
that statement, in finding the trial court had erred in terminating defendant’s self-
representation, the Supreme Court did not decide whether the out-of-court misconduct
would have justified revocation of defendant’s self-represented status. (Id. at p. 826.) In
dicta the Court majority acknowledged the trial court “had ample reason to be reluctant
about defendant’s self-representation” because he was “an obvious security risk, and
safety precautions were justified both in the jail and the courtroom.” (Ibid.) The Court
further observed, however, “there was no showing that his pro. per. status increased the
risk in any way. Self-represented or not, defendant was going to be housed in the jail,
transported to and from the court and in attendance for his trial.” (Ibid.)2
       Relying primarily on this language from Butler, Ruiz contends the trial court
abused its discretion in terminating his self-represented status, which, in turn, is structural
error requiring reversal of the judgment. The Butler dicta does not compel the conclusion
the trial court here was required to permit Ruiz to continue to represent himself.


2
       Two dissenting justices concluded defendant had forfeited his right to self-
representation. (People v. Butler, supra, 47 Cal.4th at pp. 829-834 (dis. opn. of
Chin, J.).)

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       It is true Ruiz, unlike the defendant in Butler, committed his acts of misconduct,
including possession of a shank in the courtroom, while he was represented by counsel.
We are also mindful Ruiz had not exhibited rude or disruptive behavior during court
proceedings. Unlike the defendant in Butler, however, in addressing the trial court, Ruiz
made an unmistakable threat to harm others. As discussed, Ruiz told the court,
“Nobody’s life is in danger right now. What occurs outside the courtroom is a whole
different story.” From that statement, Ruiz’s possession of a deadly weapon within the
courtroom itself and his continuing record of criminal violence, together with the lack of
any colorable ground for withdrawing his no contest plea—the purported basis for Ruiz’s
desire to represent himself—the trial court reasonably determined Ruiz’s request was
pretextual, thinly masking an intent to commit further violence, thereby threatening the
core integrity of the remaining trial proceedings. Although the trial court could have
attempted to employ other security measures and less restrictive sanctions, the court did
not abuse its discretion in concluding Ruiz had forfeited the right to continued self-
representation.
                                      DISPOSITION
       The judgment is affirmed.




                                                         PERLUSS, P. J.

       We concur:



              WOODS, J.                                  SEGAL, J. *




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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