Filed 5/11/16 P. v. Castillo CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

THE PEOPLE,                                                          B259049

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA409987)
         v.

CESAR LUCAS CASTILLO,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. William
N. Sterling, Judge. Affirmed.


         Eileen Manning-Villar, under appointment by the Court of Appeal, for Defendant
and Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Ryan
M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
       Cesar Lucas Castillo (defendant) appeals from a final judgment entered after his
conviction by jury of two counts of second degree robbery (Pen. Code, § 211)1 and
related enhancements. We affirm the judgment.
                                    CONTENTIONS
       Defendant argues that the trial court denied his right to due process of law under
the Fourteenth Amendment to the United States Constitution by instructing the jury with
CALCRIM No. 315, which advises jurors on how to evaluate eyewitness identifications.
Defendant argues that the instruction ratifies the common misperception that a witness’s
certainty correlates with his or her accuracy. Because the case rested substantially on
eyewitness identification, defendant argues that the error requires reversal.
       Defendant further argues that the trial court erred in denying his motion to waive
counsel and represent himself. Defendant argues that this error deprived him of his rights
under the Sixth and Fourteenth Amendments to the United States Constitution.
                              FACTUAL BACKGROUND
The Gomez incident (count 2)
       Fernando Gomez (Gomez) listed his Galaxy S3 cellular telephone for sale on
Craigslist. The telephone number associated with the cellular phone was (213) 300-7221.
On April 7, 2013, at 8:00 p.m., Gomez and his wife Elsita Gomez (Mrs. Gomez) drove to
Immanuel Presbyterian Church in Los Angeles to meet a man interested in buying the
cellular telephone. They did not see anyone, so they drove to a gas station. A short time
later, a man called and indicated that he was at the church.
       Gomez parked his truck at the entrance of the church’s parking lot. He stepped
out of the truck to meet a man, whom both Gomez and his wife identified in court as
defendant. After defendant and Gomez spoke briefly about the phone, defendant pulled a
silver revolver from his waistband and pointed it at Gomez’s chest. Defendant demanded
that Gomez give him both the Galaxy S3 and another cellular telephone that Gomez was
carrying. Mrs. Gomez stepped out of the truck and told Gomez to give defendant the


1      All further statutory references are to the Penal Code unless otherwise noted.

                                             2
phones. Defendant grabbed both phones, put them in his pocket, and walked away.
Gomez called the police.
The Park incident (count 3)
       Jinyi Park (Park) had advertised her Samsung Galaxy Note 2 for sale on Craigslist.
On April 8, 2013, at approximately 5:00 p.m., Park went to Jon’s Market to meet a man
interested in buying the cellular phone. The man had been texting Park about her phone
from the number (213) 300-7221. After failing to connect at the market, the man asked
Park to meet him at the parking lot across the street.
       Park drove over to the parking lot and parked next to the only person she saw
there. As she stepped out of her car, the man, whom Park identified as defendant in
court, asked to see the phone. Park handed the phone in its box to defendant. After
briefly examining the phone, defendant lifted his shirt to reveal a gun in his waistband.
Defendant told Park he had a gun and instructed her to leave. Park panicked and froze,
and defendant ran away with the phone. Park called the police.
The Sanchez incident (count 4)
       On April 7, 2013, Hugo Sanchez (Sanchez) exchanged texts with an individual
selling a Galaxy S3 mobile phone on Craigslist. The seller’s texting number included an
area code of “213” and the number “300.” The parties were not able to arrange a meeting
that evening.
       The following day, Sanchez received texts regarding the same phone from a
different number. This phone had a “708” area code. When Sanchez tried to text to the
“213-300” number, he received a message that the number had been disconnected. The
parties made plans to meet later that evening in the Koreatown section of Los Angeles.
At about 10:50 p.m., while Sanchez waited outside the apartment building where the
parties had agreed to meet, a Hispanic man in his late 20’s approached him. The man
was 5’8” or 5’9”, weighed between 160 and 170 pounds, had a shaved head, and wore a
black hoodie with blue jeans.
       Sanchez asked the man if he was selling a phone. The man said that he was and
handed Sanchez a white Galaxy S3. When Sanchez asked if the man had paid the bill,


                                              3
the man said “all right, give me the money.” The man raised the bottom of his hoodie
and pulled a gun out of the waistband of his pants, showing it to Sanchez. The man
proceeded to pat down the pockets of Sanchez’s clothing, taking his wallet and keys.
After throwing the keys into the street, the man ran off with Sanchez’s wallet and cash.
Investigation
          On April 9, 2013, at approximately 5:00 p.m., Los Angeles Police Detectives
Webster Wong, Thomas Penson, and Ron Kim went to the apartment of defendant’s
girlfriend, Blanca Ponce. Detective Penson detained defendant in front of the apartment
and recovered a Nokia cellular telephone from defendant’s pants pocket. During a search
of Ponce’s apartment, officers recovered a box for a Samsung Galaxy Note 2 containing
international adaptors. Defendant was arrested.
          Detective Wong returned the Nokia phone to Mrs. Gomez, who identified the
phone as belonging to her husband. Mrs. Gomez was able to unlock the phone and
indicated that the email address located in the phone belonged to her. Mrs. Gomez
identified defendant from a six-pack photographic lineup. She circled defendant’s
photograph and wrote: “This guy looks like the one from last night” and then wrote “But
I’m not sure.” Gomez was not able to identify defendant in a six-pack photographic
lineup.
          Detective Wong showed the box for the Samsung Galaxy Note 2 to Park. Park
identified the item as hers because her box contained international adaptors. Park was
unable to identify defendant in a six-pack photographic lineup. She indicated that
defendant was not among the pictures.
                                PROCEDURAL HISTORY
          Defendant was charged with four counts of second degree robbery (§ 211). It was
further alleged as to all counts that he personally used a dangerous and deadly weapon
(§ 12022, subd. (b)(1)), and personally used a firearm (§ 12022.53, subd. (b)). In
addition, it was alleged as to all counts that defendant suffered three prior prison terms
(§ 667.5, subd. (b)). Defendant pleaded not guilty and denied the special allegations.



                                              4
Preliminary hearing
       At the preliminary hearing, Mrs. Gomez identified defendant as the man who
robbed her husband. She told the court that when she made the identification in the
photographic lineup, she was not sure:
             “I wasn’t sure enough if it was him, but I circle it because I don’t
       know. Something was telling me, like, he looked like it was him. I don’t
       know. It looked like him. I was picturing him skinnier like he looks now
       and with the glasses on and his little moustache that he had. Everything
       matched. Everything was matching.”

       When she identified defendant at the preliminary hearing, Mrs. Gomez said she
knew it was him because “I will never forget his face” and “I remember how he looked
and everything.” She admitted that somebody had told her that the person who had been
found with her husband’s phone would be in court that day and that she would be asked
to identify him.
       Gomez also identified defendant as the perpetrator at the preliminary hearing. He
asked “[t]he guy with the jail outfit” to stand up so that he could get a better look. Then
he stated that he thought defendant was the person who robbed him. During cross-
examination, Gomez stated that the suspect had been wearing a gray shirt and blue jeans,
although he had told police that the shirt was yellow. The robber also had a moustache
and had put on glasses at the end of the robbery. Gomez rated his certainty about his
identification of defendant as eight on a scale of ten, and said he told police that he had
seen defendant’s photo in the six-pack lineup.
       At the preliminary hearing, Park stated that defendant looked like the man who
had robbed her. She based her identification on the clothing defendant was wearing, as
well as his hairstyle, round face, moustache and the way his body was shaped. Park
testified that she did not know that the accused would be in court that day, and no one
had told her that defendant was the robber. However, once she saw him standing with his
attorney, she knew defendant was the person who had been charged with the offense.




                                              5
        Sanchez did not identify defendant at the preliminary hearing. He described the
man who robbed him as 5’6” or 5’7,” kind of chubby, age 26 to 28 years, Hispanic,
wearing a “Bruno Mars” style hat. When asked if he saw anyone at the hearing who
looked like his assailant, Sanchez looked around for about 17 seconds and then stated that
he did not see the person who took his wallet and cash.
Defendant’s pretrial motions
        Defendant made a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118
(Marsden) for substitution of counsel due to inadequate representation. On September
16, 2013, the motion was heard and denied.
        On November 5, 2013, defendant made a motion pursuant to Faretta v. California
(1975) 422 U.S. 806 (Faretta) to proceed without counsel. After inquiring of defendant
whether he would be ready to go to trial within the next eight days, the court found the
request untimely and denied the motion.
Trial
        Just prior to calling in prospective jurors for voir dire, the court granted the
defense’s motion to dismiss count 1.
        Mrs. Gomez identified defendant at trial as the person who had robbed her
husband. During cross-examination, she admitted the incident occurred quickly and that
she focused much of her attention on the assailant’s gun. She told police shortly after the
incident that the robber had been wearing blue jeans and a long-sleeved gray shirt as well
as some clear-lensed glasses. When prompted by defense counsel, she also recounted
that she had previously described the shirt as having a picture of a tiger on it. Mrs.
Gomez estimated that the robber was 5’4” or 5’5” and characterized him as “skinny” not
“fat,” “like 150 . . . 160.”
        Mrs. Gomez also told the jury that she was “positive” the person she identified in
the six-pack photographic lineup was the person who committed the robbery. Yet when
confronted with the uncertainty she had expressed at the photographic lineup, she
maintained she had been lying then, but now was telling the truth.



                                               6
       Gomez also identified defendant at trial as the person who had robbed him. He
admitted that he only looked quickly at defendant. When asked if he wanted to avoid
looking at defendant in court, Gomez responded: “I don’t want to go looking at no guy.
Come on. Especially after he robbed me.” Gomez also testified that when shown the six-
pack photographic lineup, he identified defendant as the individual who robbed him.
However, he stated: “[B]ut I didn’t want no problems with the guy, you know, so I
wasn’t going to sign or anything like that.”
       Park identified defendant and confirmed that she was certain that he was the
robber. She testified that although she had gotten a good look at her assailant, she could
not pick him out among the six photographs shown to her a few days after the robbery.
When shown the same six-pack of photographs, Park picked out defendant as the person
in photo No. 3.
       Sanchez testified at trial that the robber was a Hispanic man, approximately 5’8”
or 5’9” tall, 160 to 170 pounds, aged 26 or 27 years old. The robber was wearing blue
jeans and a black hoodie at the time of the incident. On cross-examination Sanchez
admitted that at the preliminary hearing he had also described the suspect as chubby and
wearing prescription glasses. When asked whether defendant was the person who robbed
him, Sanchez stated, “I’m not sure. . . . I don’t think it’s him.”
       Defendant did not testify or present any evidence.
       Defendant was found guilty on counts 2 and 3 as charged. A mistrial was declared
as to count 4.
Sentencing
       The prosecution’s motion to strike defendant’s prior prison term allegations was
granted. Defendant was sentenced to 19 years 4 months in state prison, as follows: the
high term of five years on count 2 (§ 213), plus a consecutive term of 10 years for
personal use of a firearm during the commission of count 2 (§ 12022.53, subd. (b)); one
year (one-third the midterm of three years) on count 3 (§ 213), and three years four
months for personal use of a firearm during the commission of count 3 (§ 12022.53, subd.



                                               7
(b)). All terms are to run consecutively. The court also ordered defendant to pay various
fines and fees and awarded custody credits.
Notice of appeal
       On September 18, 2014, defendant filed a timely notice of appeal.
                                       DISCUSSION
I. Eyewitness identification instruction (CALCRIM No. 315)
       The trial court instructed the jury in this case with CALCRIM No. 315, which
advises jurors on how to evaluate eyewitness identifications.2
       Defendant argues that the trial court erred by giving this instruction, since it
ratified the common misperception that a witness’s certainty correlates with his or her
accuracy. Specifically, defendant challenges the instruction’s directive that the jury
consider “how certain was the witness when he or she made an identification[?]”
Defendant argues that many scientific studies have confirmed that a witness’s perceived
sense of certainty about his or her identification is usually not a good indicator of the
identification’s accuracy.



2       The instruction was read to the jury as follows: “You have heard eyewitness
testimony identifying the defendant. As with any other witness, you must decide whether
or not the witness is truthful and accurate testimony. In evaluating identification
testimony consider the following questions: did the witness know or have contact with
the defendant before the event; how well could the witness see the perpetrator; what were
the circumstances affecting the witness’[s] ability to observe, such as lighting, weather
conditions, obstructions, distance, and direction of observation; how closely was the
witness paying attention; was the witness under stress when he or she made the
observation; did the witness give a description and how does that description compare to
the defendant; how much time passed between the event and the time when the witness
identified the defendant; was the witness asked to pick the perpetrator out of a group; did
the witness ever fail to identify the defendant; did the witness ever change his or her mind
about the identification; how certain was the witness when he or she made an
identification; are the witness and defendant of different races; were there any other
circumstances affecting the witness’[s] ability to make an accurate identification. The
People have a burden of proving beyond a reasonable doubt that it was the defendant who
committed the crime. If the People have not met their burden, you must find the
defendant not guilty.”

                                              8
       A. Standard of review
       An appellate court reviews instructional error such as this independently, since the
underlying question is one of law. (People v. Alvarez (1996) 14 Cal.4th 155, 217.)
       B. Applicable law
       In People v. Ward (2005) 36 Cal.4th 186 (Ward), the California Supreme Court
considered whether the trial court erroneously included a “level of certainty” factor in the
standard eyewitness instruction in use at the time, CALJIC No. 2.92. The instruction
directed the jury to consider “‘the believability of the eye witness as well as other factors
which bear upon the accuracy of the witness’ identification,’” including the “‘extent to
which the witness is either certain or uncertain of the identification.’” (Ward, supra, at p.
213.) The high court noted that the defendant did not request his proposed modifications
at trial, and there was no sua sponte duty on the part of the trial court to modify the
instruction. Numerous witnesses had indentified the defendant; the defendant’s expert
testified that there was no correlation between an eyewitness’s level of certainty and the
accuracy of his or her identification; and the defendant strongly attacked the accuracy of
the eyewitness identifications at trial. (Id. at pp. 213-214.)
       Similarly, in People v. Sullivan (2007) 151 Cal.App.4th 524 (Sullivan), the
defendant argued that the trial court failed to delete sua sponte the reference to witness
“‘certainty’” from CALJIC No. 2.92 regarding the factors to be considered in
determining the weight to be given eyewitness testimony. (Sullivan, supra, at p. 561.)
The Court of Appeal determined that the trial court had no such duty to modify a jury
instruction on its own motion. Further, the court cited People v. Gaglione (1994) 26
Cal.App.4th 1291, 1302-1303, disapproved on other grounds in People v. Martinez
(1995) 11 Cal.4th 434, 452, and People v. Wright (1988) 45 Cal.3d 1126, which
expressly approved CALJIC No. 2.92. As was done in Gaglione and Wright, the Sullivan
court rejected the defendant’s arguments that CALJIC No. 2.92 was improper as given
with reference to degree of certainty as a factor in assessing the reliability of eyewitness
identification testimony. (Sullivan, supra, at p. 562.)



                                              9
         Finally, in People v. Johnson (1992) 3 Cal.4th 1183 (Johnson), the defendant
argued that the trial court erred in instructing the jury “that the extent to which the
witness was either certain or uncertain of the identification was a factor to consider in
assessing eyewitness testimony.” (Id. at p. 1231.) In Johnson, an expert witness had
testified without contradiction that a witness’s confidence in an identification does not
positively correlate with its accuracy. In addition, because the instruction directly
contradicted the expert’s testimony, it implied that the jury could not rely on her
evidence. (Ibid.) The high court rejected these arguments, noting that the jury was not
required to accept the expert’s testimony, yet it was permitted to find that the eyewitness
identification was not necessarily an accurate one. (Id. at p. 1232.)
         C. Scientific studies and foreign authority
         Defendant urges this court to find that Johnson and Ward are not controlling
precedent. Defendant notes that Johnson was decided 23 years ago, and that the high
court merely held that the instruction, which contained the same certainty factor at issue
here, would not confuse the jury under the circumstances of that case. As to Ward,
defendant notes that the issue was one of dozens in the capital appeal, and the Supreme
Court devoted only three paragraphs to the subject. In addition, defendant states, updated
scientific research and out-of-state authority provide cause for reconsideration of the
issue.
         Defendant argues that recent scientific studies have revealed that an eyewitness’s
confidence or certainty, in most cases, has little to do with his or her accuracy (citing
Wells & Olson, Eyewitness Testimony (2003) 54 Annu. Rev. Psychol. 277, 283-284). In
addition, a witness’s confidence can be bolstered by suggestive procedures or confirming
feedback. (Citing Wells & Bradfield, “Good, you identified the suspect”: Feedback to
Eyewitnesses Distorts their Reports of the Witnessing Experience (1998) 83 J. Appl.
Psychol. 360, 366-368, 372-373.) Witness confidence is the single most influential factor
in a juror’s determination of whether an identification is accurate (citing Wells et al.,
Accuracy, Confidence, and Juror Perceptions in Eyewitness Identification (1979) 64 J.
Appl. Psychol. 440, 446). However, jurors are often unaware of how easily witness


                                              10
confidence can be manipulated. (Benton et al., Eyewitness Memory is Still Not Common
Sense: Comparing Jurors, Judges and Law Enforcement to Eyewitness Experts (2006)
20 Appl. Cognit. Psychol. 115, 119-120.)3
       Defendant argues that in light of these studies, California precedent on eyewitness
identification is dangerously outdated. Defendant points to Justice Sotomayor’s dissent
in Perry v. New Hampshire (2012) ___ U.S. ___ [132 S.Ct. 716], explaining that “The
empirical evidence demonstrates that eyewitness misidentification is ‘“the single greatest
cause of wrongful convictions in this country.”’. . . Study after study demonstrates that
. . . jurors routinely overestimate the accuracy of eyewitness identifications; [and] that
jurors place the greatest weight on eyewitness confidence in assessing identifications
even though confidence is a poor gauge of accuracy.” (Id. at pp. 738-739, dis. opn. of
Sotomayor, J., fns. omitted.)4
       Thus, defendant argues, where, as here, the conviction rested on one or two
eyewitness identifications, the erroneous instruction violates due process.


3       Contrary to defendant’s pronouncement that these articles discuss “recent”
scientific research, we note that with the exception of the Benton article, all of these
articles were published well before the Supreme Court’s decision in Ward.

4        In Perry, the majority rejected the defendant’s argument that due process requires
a trial judge to conduct a preliminary assessment of the reliability of eyewitness
identifications. Defendant notes that despite the high court’s failure to act, several states
have fashioned safeguards against convictions resting on unreliable identifications. (See
State v. Lawson (Or. 2012) 291 P.3d 673 [Oregon Supreme Court introduced new
procedures for determining the admissibility of eyewitness identification evidence in light
of recent research on the dangers of misidentification, reversing a conviction for new trial
where the identification procedures were overly suggestive]; Brodes v. State (Ga. 2005)
614 S.E.2d 766 [Georgia Supreme Court determined that including a “level of certainty”
instruction on reliability of eyewitness identification was harmful error in the matter
before it]; State v. Henderson (N.J. 2011) 27 A.3d 872 [Supreme Court of New Jersey
determined that test for evaluating the trustworthiness of eyewitness evaluations should
be revised in light of scientific research; proposing pretrial hearings regarding
admissibility where defendant can show some evidence of suggestive procedures and
enhanced jury instructions describing the relevant facts for eyewitness identifications and
their effect on reliability].)

                                             11
       D. Forfeiture
       We first address the People’s threshold argument that defendant has forfeited this
claim because he failed to object to CALCRIM No. 315 at trial. (See Ward, supra, 36
Cal.4th at p. 213 [trial court has no sua sponte duty to modify instruction to delete factor
concerning level of certainty]; Sullivan, supra, 151 Cal.App.4th at p. 561 [same].)
       Defendant responds to this argument by quoting section 1259, which provides that
“[t]he appellate court may . . . review any instruction given, refused or modified, even
though no objection was made thereto in the lower court, if the substantial rights of the
defendant were affected thereby.” Thus, defendant argues, his failure to object to the
instruction does not preclude review for constitutional error. (People v. Flood (1998) 18
Cal.4th 470, 482, fn. 7.)
       Defendant asserts that the instructional error violated his Fourteenth Amendment
right to due process of law and thus affected his “substantial rights” under section 1259.
Accordingly, we review defendant’s claim on the merits.
       E. No error occurred
       Ward remains the law of this state. In Ward, that defendant made similar
arguments to those made here. He argued that the trial court erroneously included a
“level of certainty” factor in its eyewitness instruction, which was standard in the
predecessor instruction to CALCRIM No. 315, as it is in the current instruction. The
defendant in Ward also argued that the inclusion of the certainty language in the
instruction deprived him of his Fourteenth Amendment right to due process of law.
Defendant makes the same argument here.
       The Supreme Court of this state disagreed with this argument, finding that the trial
court had no sua sponte duty to modify the instruction to delete the “‘level of certainty’
factor.” (Ward, supra, 36 Cal.4th at p. 213; see also Johnson, supra, 3 Cal.4th at p. 1232
[finding that the trial court did not err in instructing the jury that it may consider witness
certainty in assessing eyewitness testimony].) In addition, the high court found that any
potential error was harmless in that case because numerous witnesses identified the
defendant as the perpetrator; defendant’s expert testified that there was no correlation


                                              12
between an eyewitness’s level of certainty and the accuracy of his or her identification;
and defendant strongly attacked the accuracy of the eyewitness identifications at trial.
(Ward, at p. 214.)
       The trial court did not err in instructing the jury with the standard language of
CALCRIM No. 3.15, which, despite challenges to the predecessor instruction, has not
been declared unconstitutional in this state.
       F. Any error was harmless in this case
       Instructional error is reversible only if “‘the court, “after an examination of the
entire cause, including the evidence,” is of the “opinion” that it is reasonably probable
that a result more favorable to [defendant] would have been reached in the absence of the
error.’ [Citation.]” (People v. Wright, supra, 45 Cal.3d at p. 1144, citing People v.
Watson (1956) 46 Cal.2d 818, 836.) We find that even if the language of the instruction
were erroneous, any instructional error would be harmless in this case.5
       First, as in Ward, several witnesses identified defendant, including Gomez, his
wife, and Park. Mrs. Gomez had identified defendant previously in a photographic
lineup. In addition, the record shows that witnesses were cross-examined regarding their
eyewitness identifications. Defendant’s counsel got Mrs. Gomez to admit that she had
been focused on the gun during the robbery and that the perpetrator turned and quickly
walked away. In addition, defendant’s counsel pointed out that Mrs. Gomez indicated
uncertainty that defendant was the perpetrator when she picked his photograph out of the
six-pack.
       The problems with Gomez’s identification were also brought out for the jury’s
consideration. Defendant’s counsel questioned Gomez on his very brief glance at the
robber and the fact that he did not pick defendant’s photo when shown a six-pack. Park

5      Defendant argues that because the alleged error raised here implicates his federal
constitutional right to due process of law, this court must review this claim under the
federal standard articulated in Chapman v. California (1967) 386 U.S. 18, 24. Under that
standard, the question is whether the court can declare the error harmless beyond a
reasonable doubt. (Ibid.) We find the error harmless under both the state and federal
standards.

                                                13
was also cross-examined about her failure to identify defendant in a six-pack shown to
her just a few days after the robbery. Defendant’s attacks on the accuracy of the
eyewitness identifications allowed the jury to consider that the witnesses may not have
always been so certain that the defendant was the perpetrator. Indeed, the neutral
wording of the instruction, which directs the jurors to consider “how certain was the
witness when he or she made an identification,” allows the jury to consider the witness’s
prior failures to identify him and, in the case of Mrs. Gomez, her clear articulation of
uncertainty.
       The error was also harmless because the identifications were corroborated by
independent evidence. Gomez’s cellular telephone was recovered from defendant’s
pocket. In addition, Park’s cellular telephone box and adaptors were recovered from
defendant’s girlfriend’s residence.
       Accordingly, even if it was error for the trial court to include the certainty
language in CALCRIM No. 3.15, any such error was harmless under the circumstances of
this case.
II. Faretta motion
       On November 5, 2013, this case was called for jury trial. At the hearing,
defendant moved to represent himself in pro. per. The trial court asked him if he was
“prepared to go to trial within the next 10 days.” Defendant replied that he would not be,
because he needed to see if he could get his paperwork from his trial attorney. The court
then asked the prosecution and defense to state whether each would be ready within the
10 days. The parties informed the court that they would be ready on the eighth day. 6
       At that point, the court and defendant had the following exchange:
       “The Court: Okay. Of course Mr. Castillo, I will consider your request. I’ll let
you figure out the paperwork if you want, but unless you are prepared to be ready to go to


6        At a hearing on November 13, 2013, the court continued the jury trial by
stipulation until January 8, 2014. The trial was subsequently continued several times
until it finally commenced on July 10, 2014. The record does not indicate that defendant
ever renewed his request for self-representation when these extensions were granted.

                                             14
trial within the next eight days then the court does not believe your request is timely. So
do you want the paperwork and to fill out the paperwork and talk to me about being your
own counsel?
       “The Defendant: Like I said, I’m going to need time to study the case. I need all
the discovery and motions.
       “The Court: That’s why the court doesn’t believe it’s timely, because you’re
indicating that you’re not going to be ready within the next eight days. Both the People
and your current counsel are going to be ready within the next eight days so and this case
was arraigned back in June so it’s time for it to go to trial. However, with that
understanding, do you still want to fill out the paperwork and have a discussion about
being your own counsel?
       “The Defendant: I’m going to have to need some more -- I might need some more
time to just briefly through all the --
       “The Court: You’re indicating you are not going to be ready within the next --
       “The Defendant: No, ma’am.
       “The Court: Find the request not timely. Both sides have announced ready. So
let me fill out the transfer memo.”
       Defendant argues that the trial court erred by summarily denying his Faretta
request. Defendant maintains that the request was timely and that the trial court erred by
failing to weigh all of the relevant factors before denying the request for self-
representation. Defendant further argues that this error denied him his Sixth Amendment
right to represent himself, and must be reversed.
       A. Timeliness
       In support of his position that the Faretta request was timely made, defendant cites
Ferrel v. Superior Court (1978) 20 Cal.3d 888, abrogated on other grounds in People v.
Butler (2009) 47 Cal.4th 814, 826. In Ferrel, the petitioner had, “since the initiation of
the criminal proceedings against him, sought to proceed in propria persona.” (Ferrel, at




                                             15
p. 890.) The case does not suggest that defendant’s motion was timely under the
circumstances of this case.7
       In addition, defendant cites People v. Windham (1977) 19 Cal.3d 121, 124
(Windham). In Windham, the defendant made a mid-trial motion to represent himself.
The trial court denied the motion “principally on the ground that it came at too late a
stage of the proceedings.” (Id. at p. 125.) The Windham court reasoned:
               “The experience of other jurisdictions in dealing with the procedural
       implementation of a constitutionally based right of self-representation
       demonstrates that the requirement of a pretrial motion to that effect is a
       workable and appropriate predicate to the exercise of the Faretta right. We
       hold therefore that in order to invoke the constitutionally mandated
       unconditional right of self-representation a defendant in a criminal trial
       should make an unequivocal assertion of that right within a reasonable time
       prior to the commencement of trial.”

(Windham, supra, 19 Cal.3d at pp. 127-128, fn. omitted.)
       In assessing a late request to discharge an attorney and proceed in pro. per., the
trial court should consider “the quality of counsel’s representation of the defendant, the
defendant’s prior proclivity to substitute counsel, the reasons for the request, the length
and stage of the proceedings, and the disruption or delay which might reasonably be
expected to follow the granting of such a motion.” (Windham, supra, 19 Cal.3d at pp.
128-129.)
       The Supreme Court discussed the issue further in People v. Lynch (2010) 50
Cal.4th 693 (Lynch), abrogated on other grounds in People v. McKinnon (2011) 52
Cal.4th 610, 637-644. The high court noted that it has long held “that a self-
representation motion may be denied if untimely. [Citation.]” (Lynch, supra, at p. 722.)
For example, the court has “held on numerous occasions that Faretta motions made on
the eve of trial are untimely.” (Lynch, at p. 722.) In one case, a Faretta motion made a

7      People v. Joseph (1983) 34 Cal.3d 936 (Joseph) also does not support defendant’s
position in this case. In Joseph, the defendant made his Faretta motion five months
before trial and almost two months before any pretrial motions were heard. (Joseph,
supra, at p. 944.) Under the circumstances of that case, the trial court’s denial of the
defendant’s motion to represent himself was error.

                                             16
month before trial was considered untimely given the surrounding circumstances of that
case. In another case, a motion made six days before trial commenced was also
considered untimely, where both prosecution and defense counsel were ready to proceed
and there was a serious witness problem at hand. (Lynch, at pp. 723-724.) Thus, the high
court explained, “timeliness for purposes of Faretta is based not on a fixed and arbitrary
point in time, but upon consideration of the totality of the circumstances that exist in the
case at the time the self-representation motion is made.” (Lynch, at p. 724.) The United
States Supreme Court has also observed that “lower courts generally require a self-
representation motion to be timely, a limitation that reflects that ‘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.]” (Id. at p. 722, citing
Martinez v. Court of Appeal of Cal., Fourth Appellate Dist. (2000) 528 U.S. 152, 162.)
       “‘When a motion for self-representation is not made in a timely fashion prior to
trial, self-representation no longer is a matter of right but is subject to the trial court’s
discretion.’ [Citation.]” (People v. Jenkins (2000) 22 Cal.4th 900, 959, quoting People
v. Bradford (1997) 15 Cal.4th 1229, 1365.)
       Under these authorities, the trial court had the discretion to deny defendant’s
Faretta motion as untimely. The motion was made on the day the matter was called for
trial, and both sides were ready to proceed on the eighth day of the trailing period. Upon
being questioned by the court, defendant made it clear he would need to delay the
proceedings in order to represent himself. Given the disruption and delay which would
reasonably be expected to follow the granting of defendant’s motion, it was well within
the trial court’s discretion to deny the motion as untimely.
       B. The Windham factors
       Alternatively, defendant argues that the trial court’s denial of his Faretta motion
must be reversed because the trial court failed to make the inquiry mandated by
Windham. In Windham, the Supreme Court stated:
              “Among [the] factors to be considered by the court in assessing such
       requests made after the commencement of trial are the quality of counsel’s


                                               17
       representation of the defendant, the defendant’s prior proclivity to
       substitute counsel, the reasons for the request, the length and stage of the
       proceedings, and the disruption or delay which might reasonably be
       expected to follow the granting of such a motion.”

(Windham, supra, 19 Cal.3d at p. 128; see also People v. Marshall (1996) 13
Cal.4th 799, 827 [noting that a Faretta motion made after a reasonable time before
the commencement of trial “is addressed to the sound discretion of the trial court,
which should consider” the factors listed in Windham].)
       Defendant cites People v. Rivers (1993) 20 Cal.App.4th 1040, 1048 (Rivers) for
the proposition that it is error if the trial court summarily denies a Faretta motion without
implicitly considering the Windham factors. In Rivers, the defendant moved for self-
representation after the jury had rendered its verdict but before the adjudication of the
sentence enhancement allegation. Without discussion or inquiry, the court denied the
motion as untimely. (Rivers, at p. 1047.)
       The Fourth Appellate District acknowledged that the trial court properly
recognized that a Faretta request made during trial is not timely. (Rivers, supra, 20
Cal.App.4th at p. 1048.) However, the court pointed out that “a defendant dissatisfied
with counsel must be permitted to recount specific examples of claimed inadequacy.”
(Id. at p. 1049.) The court found that the trial court erred in denying the defendant a
chance to explain his desire to represent himself. Nevertheless, ultimately the court
found the error to be harmless because “there simply is no reasonable probability -- or
even possibility -- that defendant would have obtained a more favorable result acting for
himself.” (Id. at p. 1053.)
       The matter before us differs from Rivers. Here, the trial court did not deny the
request “[w]ithout discussion or inquiry,” as the trial court did in Rivers. (Rivers, supra,
20 Cal.App.4th at p. 1047.) Instead, after explaining to defendant that the court did not
believe the request was timely, the court invited defendant to “fill out the paperwork and
talk to me about being your own counsel.” Defendant then stated that he needed to
“study the case,” including getting all the discovery from his counsel. The court again


                                             18
indicated that trial needed to go forward, but then, a second time, invited the defendant to
“fill out the paperwork and have a discussion” about being his own counsel. When
defendant repeated that he would need additional time, the court found the request
untimely.
       While the court offered defendant the opportunity to discuss his reasons for
seeking to proceed in pro. per., defendant made no effort to do so. Instead, he repeatedly
indicated that he needed more time. Unlike the situation in Rivers, this was not a
summary denial devoid of discussion.
       A subsequent conversation with counsel indicated that there were 13 witnesses,
approximately 20 exhibits, and separate victims involved in the impending trial. Thus,
the trial court did not err in implicitly determining that due to the length and stage of the
proceedings, and the disruption or delay which might reasonably be expected to follow
the granting of defendant’s motion, his Faretta motion was untimely.
       Here, the court set forth its rationale, explored the effects of delay, and offered
defendant the opportunity to discuss his motion for self-representation. We find no abuse
of discretion in the court’s decision to deny the motion.8
       Nor do we find error in the trial court’s failure to explicitly consider each factor
set forth in Windham. No case mandates that the trial court explicitly discuss each of the
Windham factors. In fact, the Windham court declined to “mandate a rule that a trial
court must, in all cases, state the reasons underlying a decision to deny a motion for self-
representation.” (Windham, supra, 19 Cal.3d at p. 129, fn. 6.) Instead, the high court
only required that there be “a sufficient record on appeal in such cases in order to
sufficiently evaluate alleged abuses of discretion when motions for self-representation are
denied.” (Ibid.)



8      Again, we note that the matter was subsequently delayed by stipulation for several
months. If defendant were truly intent on representing himself, this delay would have
provided him an opportunity to renew his motion and have the time he claimed he needed
to prepare himself. There is no evidence that defendant ever renewed his request.


                                              19
       The trial court’s exercise of discretion must be upheld where there are sufficient
reasons on the record to support an implicit consideration of the Windham factors.
(People v. Bradford (2010) 187 Cal.App.4th 1345, 1354-1355.) Here, defendant was
given the opportunity to inform the court of his reasons for his request. The trial court
implicitly considered defendant’s failure to provide such reasons, despite the court’s
invitation.9 The trial court explicitly considered defendant’s repeated requests for more
time. This provides us with a sufficient record to evaluate the court’s decision. We find
no error.
       In addition, as in Rivers, any error would be harmless under the circumstances of
this case. Of four counts initially alleged against defendant, count 1 was dismissed and
the jury hung on count 4. Thus, defendant’s counsel was able to assist defendant in
avoiding conviction on two of the four counts. As to the remaining two counts, the
evidence against defendant was overwhelming. He was identified by the two victims and
a witness as the perpetrator of the robberies. Those identifications were corroborated by
independent evidence, such as the recovery of stolen property from defendant’s pocket
and his girlfriend’s residence, and the use of the phone number in the Gomez robbery in
the subsequent robberies. Under the circumstances, we find there is no reasonable
probability that defendant would have obtained a more favorable result in acting for
himself. (People v. Watson (1956) 46 Cal.2d 818, 836.) Any error was therefore
harmless.




9      Defendant emphasizes his previous Marsden motion, arguing that this prior
motion weighed in favor of his Faretta motion by showing displeasure with his counsel’s
representation. However, as the respondent points out, the motion was resolved against
defendant, thus giving the trial court assurance that defense counsel’s representation had
been found to be adequate.

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                                  DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                           ____________________________, J.
                                           CHAVEZ

We concur:



__________________________, Acting P. J.
ASHMANN-GERST



__________________________, J.
HOFFSTADT




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