Filed 5/1/13 P. v. Lebon 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B239688

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. SA072347)
         v.

GARY DEVAUGHN LEBON,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Kathryn A. Solorzano, Judge. Affirmed.


         Vanessa Place, 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, Assistant Attorney General, Scott A. Taryle and Stacy S.
Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.


                  ___________________________________________________
       A jury convicted defendant Gary Devaughn Labon of forcible rape (Pen. Code,
§ 261, subd. (a)(2))1 (count 1); attempted premeditated murder (§§ 664/187, subd. (a))
(count 2); and kidnapping to commit rape (§ 209, subd. (b)(1)) (count 3). In count 1, the
jury found that defendant kidnapped the victim and inflicted great bodily injury within
the meaning of section 667.61. As to counts 2 and 3, the jury found that he personally
inflicted great bodily injury pursuant to section 10222.7, subdivision (b).
       The trial court sentenced defendant to a term of life imprisonment plus 30 years in
state prison. The sentence consisted of the following: in count 2, a life term for the
attempted murder plus a consecutive five-year term for the infliction of great bodily
injury in that count; in count 1, a consecutive 25-year term for the forcible rape. In
count 3, the trial court stayed the sentence of life imprisonment plus five years for the
great bodily injury enhancement pursuant to section 654.
       Defendant appeals on the grounds that: (1) the trial court’s improper refusal to
grant his postverdict request for substitute counsel requires reversal of his convictions;
and (2) the trial court’s improper refusal to reinstate his pro. per. status for purposes of
the motion for new trial and sentencing requires reversal of his convictions.
                                           FACTS
Prosecution Evidence
       On September 18, 2009, Brigitte Villarreal was at her home in the City of
Hawthorne. At approximately 3:00 a.m., she heard her dog growling and barking while
looking out the window. Brigitte looked out her bedroom window and saw a person, who
appeared to be a man, on her lawn. The man appeared to be kneeling and hitting the
ground or punching something. She also saw the man make another movement, which
she later described as a swaying back and forth. She thought that someone was having
sex on her lawn. A few seconds later, Villarreal saw the man dragging a body to the
corner of her lawn. Villarreal called 911. She was concerned because she heard “noises



1      All further references to statutes are to the Penal Code unless stated otherwise.


                                               2
over and over again, like somebody being punched really loud.” After the police arrived,
Villarreal went outside and saw a woman in her underwear lying on the lawn.
       Hawthorne Police Officers Sean Judd and Ian Elliott responded to the call at
Villarreal’s home. As Officer Judd approached the address, he saw a bicycle lying on the
sidewalk. He then saw defendant fighting with someone farther down the street.
Defendant had both of his hands clamped around a person lying beneath him. Defendant
saw the officers as they got out of their car, and he ran away. A foot chase ensued, and
defendant was captured when he tripped and fell.
       Sergeant Shawn Shimino arrived to assist the other officers and saw the officers
attempting to subdue defendant. After the officers handcuffed defendant, they rolled him
over and saw that his pants were undone, his penis was exposed, and a condom was
hanging off the end of his penis. Officer Judd deduced that a rape had possibly occurred.
He and another officer sprinted back to Villarreal’s address and found the victim, H.T.N.
She had numerous injuries and looked “gruesome.” She was lying on her back and had
no pants on. There was blood on the inside of her thighs and on her underwear. Her
sweatshirt was pulled up around her neck. She was completely unresponsive, and Officer
Judd was not sure if she was breathing. Paramedics arrived and the victim was taken
away. Defendant was taken to the Santa Monica Rape Treatment center in order to make
a suspect sexual assault kit.
       When H.T.N. arrived at the hospital she was not responsive and her vital signs
were not stable. She was put on a breathing machine. She had severe bleeding in her
brain, and a tube was placed in the brain. She had significant soft tissue swelling. The
anterior part of her left eye was filled with blood, and the lens was dislocated. The left
side of her face was filled with air because of the trauma she sustained. There was a
significant amount of bruising in the neck area and on the inner thighs. H.T.N. had a
shattered maxillary sinus bone and multiple shattered bones in the face. She also had
bruising of the lungs. Her most significant problem was the bleeding deep in her brain.
When she was admitted to the hospital, she was in a near-coma state.



                                             3
       H.T.N. was 69 years old at the time of the attack.2 Her son testified that she was
able to talk, walk, feed herself, and ride her bike before the attack. After the attack,
H.T.N. lived in a nursing home. She was unable to speak, walk, or feed herself. She is
fed through a feeding tube. She cannot sit up. At the time of trial, H.T.N. was a patient
of Dr. Shrikant Tamhane in a skilled nursing facility. He testified that H.T.N. is
bedridden. She is increasingly contracted, which means that her arms and legs are
closing in. She is paralyzed by the brain trauma she suffered and does not interact. It
appears that she is getting worse over time.
       Blood and potential semen samples were analyzed by Mary Keens of the
Los Angeles County Sheriff’s crime laboratory. Samples were taken from defendant and
his clothing. Defendant and H.T.N. were both included as “possible contributors” to the
DNA types detected in blood samples from defendant’s right palm. It was 23.8
quadrillion times more likely that the sample came from defendant and H.T.N. rather than
from defendant and a random person in the population. Defendant and H.T.N. were both
included as possible contributors to the epithelial cells found on defendant’s scrotum. It
was 95.9 billion times more likely that the sample came from defendant and H.T.N. than
from defendant and some random person. The bloodstain from defendant’s underwear
was consistent with two contributors, and a major contributor was consistent with the
profile of H.T.N. Defendant and H.T.N. were also possible contributors to the blood
found in defendant’s undershirt. The profile from the bloodstain on defendant’s jeans
and jacket matched the profile from H.T.N., and defendant was excluded as the source of
that profile. Defendant and H.T.N. were contributors to the samples found on the inside
and outside of the condom found on defendant.




2     In all counts, the jury found “not true” the allegation under section 667.9,
subdivision (a) that defendant knew or reasonably should have known that the victim was
65 years of age or older.


                                               4
Defense Evidence
       Sara Cohen-Hadria examined the swabs taken from defendant’s body following
the attack and did not detect sperm cells on some swabs taken from defendant. The tests
she performs are highly sensitive. She did not test the blood to determine what part of the
body the blood came from. Mary Keene testified that no test was done for vaginal fluid
on the condom. She could not say if the DNA in the scrotal sample came from blood,
epithelial cells, or any other source of material. She could only say that the DNA sample
“came back to two people,” and she included defendant and the victim in that mixture.
There were no genetic markers that could have come from anybody else. The DNA test
results for the outside of the condom did not necessarily indicate that the condom was
used during an act of sexual penetration.
       Mehul Anjaria owns a DNA consulting company. Anjaria examined data and
reports from Cohen-Hadria and Keens and noted that no semen was detected on any of
the swabs from the victim. No semen was detected on the penile or scrotal swabs taken
from defendant. There was a positive test result for blood on the scrotal swabs, but the
testing used in forensic laboratories cannot determine what area of the body the blood
came from. Blood was detected on the inside and outside of defendant’s condom. The
DNA test results for the outside of the condom do not necessarily indicate that the
condom was used during the act of sexual penetration.
       Officer Judd testified that defendant’s pants were not down when defendant was
running from the police officers. When defendant fell to the ground, Officer Judd saw
that defendant’s fly was down and his underwear was pulled down under the scrotum,
and defendant’s penis and scrotum were hanging out. After defendant was detained,
Officer Judd noticed a condom lying on the sidewalk. Neither he nor anyone else
examined the condom closely while it was still on the ground. Officer Judd did not
notice if any of the street lights were not functioning.
       Villarreal did not see any other people besides defendant on the night of the crime.




                                              5
                                        DISCUSSION
I. Denial of Postverdict Requests for Substitute Counsel
       A. Defendant’s Argument
       Defendant asserts the trial court repeatedly failed to grant his posttrial motions to
substitute counsel based on an irreconcilable conflict that he alleged existed between
himself and his court-appointed counsel, Mr. Huey. Defendant argues that his
convictions must therefore be reversed.
       B. Relevant Authority
       A defendant is entitled to bring a posttrial Marsden3 motion either for the purpose
of sentencing or to bring a new trial motion. (People v. Miller (2007) 153 Cal.App.4th
1015, 1024; People v. Winbush (1988) 205 Cal.App.3d 987, 991.) In ruling on a
postconviction Marsden motion, “the trial court must apply the same standard it would
apply in ruling on a preconviction Marsden motion: substitute counsel should be
appointed when, ‘in the exercise of its discretion, the court finds that the defendant has
shown that a failure to replace the appointed attorney would substantially impair the right
to assistance of counsel [citation], or, stated slightly differently, if the record shows that
the first appointed attorney is not providing adequate representation or that the defendant
and the attorney have become embroiled in such an irreconcilable conflict that ineffective
representation is likely to result [citation].’” (People v. Johnson (2009) 47 Cal.4th 668,
673, fn. 2.)
       Marsden held that “when a defendant seeks to discharge counsel and substitute
another attorney on the ground of inadequate representation, the court must allow the
defendant to explain the basis for the motion and to relate specific instances of the
attorney’s deficient performance.” (People v. Clark (1992) 3 Cal.4th 41, 102-103, citing
Marsden, supra, 2 Cal.3d 118.) “After hearing from the defendant, a trial court is within
its discretion in denying the motion unless the defendant establishes substantial



3      People v. Marsden (1970) 2 Cal.3d 118 (Marsden).


                                               6
impairment of his right to counsel. [Citation.] On appeal we review the denial for an
abuse of discretion.” (People v. Vera (2004) 122 Cal.App.4th 970, 979; see also People
v. Jones (2003) 29 Cal.4th 1229, 1245.)
       C. First Marsden Motion
       1. Proceedings
       On the day set for sentencing, October 12, 2011, the trial court stated that
defendant had filed a motion for appointment of counsel on October 6, 2011. When the
court stated that it appeared defendant was actually requesting advisory counsel,
defendant said he wanted an attorney to be “first seat,” and defendant would act as
advisory counsel. The trial court told defendant that his attorney would be in charge of
the case. After a lengthy discussion during which the trial court explained to defendant
that he could not participate as cocounsel with an attorney, defendant said he definitely
wanted counsel.
       The trial court expressed its concerns about defendant’s history of interaction with
his attorneys, the fact that a new attorney would take time to familiarize himself or
herself with the case, and the likelihood that defendant would allow his attorney to be in
charge without trying to interfere. Defendant insisted he wanted counsel for a new trial
motion and sentencing, and the trial court took the matter under submission until the end
of the day. The court stated that if it granted defendant’s motion it was its intention to
reappoint defendant’s former public defender, Mr. Huey, to represent him.
       At the subsequent proceeding that day, the trial court informed defendant that if he
gave up his self-representation status, his pro. per. privileges would be revoked. The
court intended to reappoint the public defender and set the matter for a sentencing
hearing. Defendant would not be in control of the case. The trial court told defendant
that if he asked to go pro. per. again or asked to have his attorney relieved, the motion
would be considered, but the request could very well be denied. Defendant insistently
asked the court who would be “the next person up” if the public defender declared a
conflict. The court would not answer that question and told defendant that the
proceeding was not a forum for defendant to select his attorney, and the first order of

                                              7
business was for defendant to relinquish his self-representation status. Defendant said,
several times “I would like a court-appointed attorney.” As soon as the trial court said
that it accepted defendant’s forfeiture of his right to represent himself and that the public
defender was appointed to represent defendant, defendant said, “The public defender
cannot represent Mr. Labon.” He repeatedly stated that there was a conflict of interest.
The court immediately held a Marsden hearing.
       At the Marsden hearing, defendant insisted that there was a conflict of interest
between him and the public defender’s office, but did not explain its nature. He also
asserted that there was a conflict of interest between himself and Mr. Huey. He said he
had no issue with accepting an attorney outside of the public defender’s office. The court
ascertained that there had been no Marsden motion or hearing before Mr. Huey was
relieved the first time. Defendant interrupted the court to continually assert that there
was a conflict of interest with the public defender and Mr. Huey. When asked to explain
the conflict of interest, defendant merely asserted that “there was a conflict of interest
many times” between him and Mr. Huey.4 The trial court repeatedly asked defendant to
be specific as to his complaints. The trial court noted that there was no record of an
irreconcilable conflict with Mr. Huey or his office. Finally, defendant claimed he had
been misled by Mr. Huey and mentioned certain trial tactics he believed Mr. Huey had
either employed or failed to pursue. When asked for his response, Mr. Huey did not
know what defendant was referring to, and stated that he never knew the nature of any
complaint by defendant when defendant requested to represent himself. He had been


4      The record shows that Mr. Huey represented defendant at his June 8, 2010
preliminary hearing, his June 22, 1010 arraignment, and five subsequent pretrial
proceedings. On December 13, 2010, defendant asked to go pro. per. because Mr. Huey
and defendant were “at complete opposition in terms of appropriating a professional
standard of representation in this matter before the court, and we are at a constant
indifference.” He asserted that he had been misinformed and had not intended to waive
time during a prior proceeding. On December 17, 2010, without holding a Marsden
hearing and without Mr. Huey being present, the trial court granted defendant’s request to
represent himself.


                                              8
investigating the case in the way he believed defendant wanted him to. Mr. Huey had a
strategy that he communicated to defendant. Mr. Huey explained some of his strategy for
trial. Mr. Huey knew how defendant planned to testify, and Mr. Huey did not believe
defendant’s self-defense argument was “vital.”5 Defendant said he believed Mr. Huey
was working with the prosecution.
       The trial court stated that it did not find that the defendant’s right to counsel would
be substantially impaired at that stage by continuing with representation by Mr. Huey.
The court had no evidence that he had provided inadequate representation. Defendant
continually interrupted the trial court’s ruling and had to be admonished. The trial court
found that Mr. Huey had not unduly delayed and was not defensive about the allegations.
The trial court did not believe that there was an irreconcilable conflict between counsel
and defendant to the degree that the right to effective representation would be impaired,
even though defendant was not happy with the appointment.
       2. No Abuse of Discretion
       We believe the trial court conducted a Marsden inquiry appropriate to the nature
of the postconviction motion made by defendant and did not fail to “factor in the pre-
existing conflict between counsel” and defendant when denying the request, as defendant
claims. The trial court heard defendant’s complaints about Mr. Huey’s representation
before defendant elected to represent himself and found that they did not reveal an
inadequate representation. It is well established that “[a] defendant does not have a right
to present a defense of his own choosing, but merely the right to an adequate and
competent defense.” (People v. Welch (1999) 20 Cal.4th 701, 728.) Although given
ample opportunity to explain his position, defendant did no more than object to some of




5      Defendant ultimately did not testify. He did, however, present his defense of self-
defense during his closing argument before the jury, despite the trial court’s continual
admonitions to focus on the evidence the jury had heard. Defendant told of being
threatened earlier in the evening and implied he thought the victim was a gang member.


                                              9
Mr. Huey’s prior tactics and could not provide any example of a genuine conflict of
interest, despite repeatedly resorting to this claim.
       Moreover, the trial court ascertained, and Mr. Huey confirmed, that there had been
no prior Marsden hearing. Mr. Huey had no notion of the reason for defendant’s desire
to represent himself. The allegations against Mr. Huey that defendant belatedly made
during the subsequent Marsden hearing were thoroughly considered by the trial court, as
its ruling demonstrates. “‘To the extent there was a credibility question between
defendant and counsel at the hearing, the court was “entitled to accept counsel’s
explanation.” [Citation.]’ [Citation.]” (People v. Jones, supra, 29 Cal.4th 1229, 1245.)
       Additionally, the fact that there were mere tactical disagreements between
defendant and his attorney indicates that there was no irreconcilable conflict. (People v.
Dickey (2005) 35 Cal.4th 884, 922; People v. Lucky (1988) 45 Cal.3d 259, 281–282.)
The court will not relieve defense counsel if the defendant manufactures a conflict to
force substitution of counsel. (People v. Smith (1993) 6 Cal.4th 684, 696-697.) Also, a
conflict between defendant and counsel does not constitute an irreconcilable conflict
when the defendant has failed to make a good faith effort to work out any disagreements.
(see People v. Smith (2003) 30 Cal.4th 581, 606; People v. Barnett (1998) 17 Cal.4th
1044, 1086.) The record is devoid of any indication that defendant discussed his
concerns with Mr. Huey. As noted in People v. Padilla (1995) 11 Cal.4th 891, “‘There is
no constitutional right to an attorney who would conduct the defense of the case in accord
with the whims of an indigent defendant. [Citations.] Nor does a disagreement between
defendant and appointed counsel concerning trial tactics necessarily compel the
appointment of another attorney. [Citations.]’” (Id. at p. 927, overruled on another
ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
       Defendant failed to make an adequate showing that his right to the assistance of
counsel was being denied or impaired. In light of all the circumstances, we conclude that
the trial court conducted an adequate inquiry into defendant’s complaints about his
attorney and did not abuse its discretion in denying the Marsden motion. (See People v.
Barnett, supra, 17 Cal.4th at p. 1085.)

                                              10
       D. Second Marsden Motion
       1. Proceedings
       After the trial court declined to relieve Mr. Huey, Mr. Huey represented defendant
at proceedings on December 12, 2011, January 25, 2012, and February 22, 2012, the day
of sentencing and the second Marsden motion. At the second Marsden hearing,
defendant reiterated that Mr. Huey believed the prosecution and the police were correct.
Mr. Huey responded, “I don’t know where he gets that.” Mr. Huey detailed his efforts in
preparing for the new trial motion and did not believe there was anything he failed to do.
Mr. Huey had apprised defendant of his intentions for the new trial motion. He realized
defendant was not satisfied with the issue he had developed, but he denied he was on the
side of the prosecution.
       Defendant began arguing with the court over the reappointment of Mr. Huey and
disparaged the new trial motion that Mr. Huey had prepared. Defendant reiterated that he
did not want Mr. Huey or the public defender’s office working for him.
       In making its ruling, the trial court told defendant that it did not think he could get
along with any appointed attorney. Defendant was manipulative in that he wanted a
trained eye to look at the record and determine whether a legal argument could be made.
Now that it was done, defendant wanted to get rid of the attorney so that he could do all
the talking. The trial court found there was no irreconcilable conflict and that Mr. Huey
had not been ineffective. The Marsden motion was denied.
       2. No Abuse of Discretion
       We conclude there was no abuse of discretion. Defendant’s repeated claims of a
conflict of interest with the entire public defender’s office reveal the chimerical nature of
his alleged conflict with Mr. Huey in particular. Although under Marsden, a trial court
must afford a defendant the opportunity to state all of his reasons for dissatisfaction with
his appointed attorney, “[o]n the other hand, a defendant is not entitled to keep repeating
and renewing complaints that the court has already heard.” (People v. Vera, supra, 122
Cal.App.4th at p. 980, citing People v. Clark, supra, 3 Cal.4th at p. 104.) “‘“[I]f a
defendant’s claimed lack of trust in, or inability to get along with, an appointed attorney

                                             11
were sufficient to compel appointment of substitute counsel, defendants effectively
would have a veto power over any appointment and by a process of elimination could
obtain appointment of their preferred attorneys, which is certainly not the law.”’
[Citation.]” (People v. Memro (1995) 11 Cal.4th 786, 857, disapproved on another point
in People v. McKinnon (2011) 52 Cal.4th 610, 639; People v. Smith, supra, 30 Cal.4th at
p. 606 [“A defendant may not effectively veto an appointment of counsel by claiming a
lack of trust in, or inability to get along with, the appointed attorney.”].)
       Defendant never provided any explanation as to why there was a conflict of
interest with the public defender’s office. Defendant appears to have believed that a
conflict between him and the public defender’s office would entitle him to be represented
by “the next person up,” and he presumably believed that he would then be represented
by an attorney who was more akin to privately retained counsel. As stated in People v.
Alexander (2010) 49 Cal.4th 846, 871, “the Sixth Amendment to the federal Constitution
guarantees the right to the assistance of counsel for a defense, but this guarantee ‘is
subject to an important limitation, however: “[T]he right to counsel of choice does not
extend to defendants who require counsel to be appointed for them.” [Citation.]’
[Citation.].”
       Apart from his accusations that Mr. Huey was working for the prosecution,
defendant’s complaints about Mr. Huey were over tactics, as previously noted.
Defendant complained that Mr. Huey was not doing what defendant asked him to do,
confirming the trial court’s opinion that it was defendant’s goal all along to be in charge
of the case. As stated previously, to the extent that defendant’s version of his
communications with counsel differ from Mr. Huey’s, the trial court in its discretion may
accept Mr. Huey’s version. (People v. Jones, supra, 29 Cal.4th at p. 1245.) Defendant
clearly had never abandoned his purpose of controlling his case, despite his insistence on
being represented and despite the trial court’s continual admonitions. (See People v.
Welch, supra, 20 Cal.4th at pp. 728-729 [counsel’s job to create defense strategy:
“‘When a defendant chooses to be represented by professional counsel, that counsel is



                                              12
“captain of the ship” and can make all but a few fundamental decisions for the
defendant.’ [Citation.]”].)
       Defendant makes much of Mr. Huey’s comment to the court that, “I don’t know
how long I have to sit here and be impugned in front of a reporter.” This occurred after
the trial court denied defendant’s second Marsden motion and the proceedings had
continued. Defendant, refusing to admit defeat, kept arguing with the court about Mr.
Huey, and the trial court responded to defendant without asking the prosecutor to leave.
Mr. Huey next suggested that, since defendant was discussing his representation again,
the courtroom should be cleared. This was merely an invocation of the trial court’s duty
to conduct a Marsden inquiry whenever a defendant asserts or implies that his attorney is
providing inadequate representation. (People v. Lara (2001) 86 Cal.App.4th 139, 150-
151.) Considering the content of defendant’s complaints and his insistence on continuing
to argue with the court about Mr. Huey’s representation, Mr. Huey understandably
suggested a proper Marsden hearing be held. It was not, as defendant alleges, a
demonstration that Mr. Huey was placing his interests above those of his client.
       3. Any Error Harmless
       In any event, any error in the denial of the Marsden motion was harmless beyond a
reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Defendant has not
shown that Mr. Huey’s representation had a detrimental effect on the outcome of his case.
Defendant represented himself at trial. The evidence of his guilt was overwhelming,
especially considering that he was caught at the scene of the brutal attack and rape, and
compelling physical evidence, including DNA evidence, linked him to the victim. The
trial court had little discretion in sentencing, and Mr. Huey advocated for concurrent
sentencing, although to no avail. Defendant has not credibly established that appointment
of a different attorney for preparing a new trial motion and for sentencing would have
gained defendant a new trial or had any effect on the sentence imposed. (People v.
Washington (1994) 27 Cal.App.4th 940, 944.)




                                            13
II. Refusal to Reinstate Pro. Per. Status
       A. Defendant’s Argument
       Defendant contends that the trial court erred in refusing his request to resume his
pro. per. status after he failed to secure new counsel. Defendant asserts that the error
requires reversal of his convictions.
       B. Relevant Authority
       In order to invoke the constitutional right of self-representation, a defendant must
unequivocally assert that right within a reasonable time prior to the trial, or, in this case,
the sentencing proceeding. (People v. Windham (1977) 19 Cal.3d 121, 127-128.)
Motions made after that time are left to the trial court’s discretion. (People v. Valdez
(2004) 32 Cal.4th 73, 103; People v. Mayfield (1997) 14 Cal.4th 668, 809; People v.
Horton (1995) 11 Cal.4th 1068, 1110.) In evaluating the timeliness of a Faretta motion,6
a trial court may also properly consider the delay that would be required if the motion
were granted and the uncertainty caused by such delay. (People v. Lynch (2010) 50
Cal.4th 693, 728, disapproved on another point in People v. McKinnon, supra, 52 Cal.4th
at p. 639.) The timeliness requirement is intended to prevent a defendant from misusing
the motion to delay unjustifiably the trial or to obstruct the orderly administration of
justice. (Lynch, at p. 722.) If the motion is untimely, the defendant has the burden of
justifying the delay. (Horton, at p. 1110.)
       In exercising its discretion, the trial court should consider the quality of counsel’s
representation, the defendant’s prior efforts to substitute counsel, the reasons for the
request, the length and stage of the proceedings, and the disruption or delay reasonably
likely to result from granting the motion. (People v. Mayfield, supra, 14 Cal.4th at p.
810, citing People v. Windham, supra, 19 Cal.3d at p. 128.)




6      Faretta v. California (1975) 422 U.S. 806 (Faretta).


                                              14
       C. Proceedings Below
       After the trial court denied the second Marsden motion, defendant told the court
that Mr. Huey was “fired off the case.” The trial court informed defendant that he did not
have the capacity to fire Mr. Huey. Defendant insisted that Mr. Huey was no longer
representing him. Defendant kept repeating that Mr. Huey was fired and eventually
stated that he would represent himself from that point forward. The trial court told
defendant that it was not surprised. Defendant had established a pattern of behavior that
was exemplified by his closing arguments before the jury, during which the trial court
had to admonish him at least 10 times to argue only the evidence. The orders were
ignored. The court told defendant he did not have a right to represent himself unless the
court had faith that he would represent himself in a nondisruptive manner. The trial court
believed the Faretta request was for the purpose of disruption and delay. The court noted
that the community, the state, and the interested parties had a right to a speedy sentencing
as well, and the trial court had already made concessions and expended resources with
respect to defendant’s request to reappoint counsel. Because the court believed that
defendant would do anything possible to delay and obstruct sentencing and disregard the
court’s orders, it was not inclined to grant defendant’s request.
       Defendant once again complained that that he had wanted a state attorney
appointed and instead the court had brought back Mr. Huey. He accused the trial court of
being manipulative in forcing him to take Mr. Huey again. The court pointed out that
defendant had not complained about Mr. Huey after the last three appearances, and
defendant had never opposed a continuance. Only on the day certain for sentencing had
defendant complained. When the trial court asked defendant if he was prepared for the
motion for new trial if his Faretta motion were granted, defendant said he did not have
his motion with him.
       The trial court denied the motion. The trial court stated it had absolutely no faith
that defendant would conform to the court’s orders, and allowing him to represent
himself would delay the proceedings and result in a disorderly resolution of the case.
Defendant had spoken out over the court many times during the proceedings and raised

                                             15
his voice. Defendant continued to argue with the court. The court again denied the
motion.
       D. No Abuse of Discretion
       We first observe that defendant’s motion was clearly untimely, although defendant
appears to assert otherwise. Defendant cites People v. Miller, supra, 153 Cal.App.4th
1015, for the proposition that sentencing is a separate and distinct proceeding, different
from the trial, and therefore defendant’s request for self-representation at sentencing was
timely. (Id. at p. 1024.) The Court of Appeal vacated Miller’s sentence after concluding
that he had the right to represent himself at sentencing, and the trial court had erred in
treating the request as untimely. (Id. at pp. 1024-1025.)
       Miller states, however, that “This is not to say that every request for self-
representation at sentencing will be timely. Much as a request to represent oneself at trial
must be made a reasonable time before trial commences, the request for self-
representation at sentencing must be made within a reasonable time prior to
commencement of the sentencing hearing.” (People v. Miller, supra, 153 Cal.App.4th at
p. 1024.) Miller’s request to represent himself was made a full two months before his
sentencing hearing. (Id. at p. 1019.) Miller informed the court that the reason for his
request was to be able to perform an investigation and related legal research prior to
sentencing, which is why he was requesting an immediate ruling on his motion. (Id. at
pp. 1019-1020.) Miller told the court he would be ready on the day scheduled for
sentencing. (Id. at p. 1020.)
       Miller is easily distinguishable from the instant case. Defendant made his Faretta
motion on the very day of sentencing. In addition, he made his Faretta motion in an
apparent fit of pique immediately after his Marsden motion was justifiably denied.
Unlike Miller, he presented no cogent reason for his request to represent himself. “[B]y
juggling his Faretta rights with his right to counsel interspersed with Marsden motions,”
the trial court could have reasonably concluded that he was “playing ‘the Faretta game’”
in an effort to delay the trial. (People v. Williams (1990) 220 Cal.App.3d 1165, 1170.) A
defendant’s Faretta request may be found equivocal when it is made immediately after

                                             16
the court has rejected the defendant’s Marsden motion. (See, e.g., People v. Scott (2001)
91 Cal.App.4th 1197, 1205.)
       A review of the record reveals that defendant’s untimely motion did not pass
muster under the Windham factors. A trial court need not explicitly state on the record
that it has considered the various Windham factors if substantial evidence in the record
otherwise supports the inference that the trial court had those factors in mind when it
ruled. (People v. Scott, supra, 91 Cal.App.4th at p. 1206.) The trial court’s remarks here
provide substantial evidence that it had the appropriate factors in mind, and our own
consideration of the Windham factors supports the trial court’s denial of defendant’s
motion. (People v. Bradford (2010) 187 Cal.App.4th 1345, 1354-1355.)
       Regarding the quality of counsel’s representation, we expressed our agreement
with the trial court’s finding during the Marsden motions that there was no evidence Mr.
Huey was providing inadequate assistance of counsel. As the trial court pointed out,
defendant had a history of being dissatisfied with the legal representation offered him.
He had asked to represent himself rather than accept representation by the public
defender, and he had also had his standby counsel removed.
       With respect to the reason for the request for self-representation, the court
believed that defendant’s actual purpose was to delay the process, and defendant’s
conduct supports this view. The only reason defendant gave, apart from the fact that he
did not want a public defender, was that he wanted to file a new trial motion. Previously,
defendant had stated he wanted an attorney to prepare a new trial motion, and Mr. Huey
had done so. Although defendant apparently believed there were more issues to raise
than found by Mr. Huey, the fact that defendant exploited closing argument to repeatedly
argue items outside the evidence casts doubt on the value of any motion written by
defendant. The trial court was well aware of defendant’s tendency to stray from legal
arguments.
       As for the stage of the proceedings, the record shows that sentencing had already
been delayed for several months, and further delay was unwarranted. The verdicts were
rendered on August 30, 2011, almost six months before the Faretta request. The trial

                                             17
court had given defendant extra time to prepare for sentencing and a new trial motion and
scheduled the sentencing and motion hearing for October 12, 2011. On October 6, 2011,
defendant asked for counsel to be appointed. After Mr. Huey was appointed and had
represented defendant for over four months, defendant wished to start all over with his
own new trial motion and to delay sentencing. As the court observed, the People and the
community also had an interest in sentencing within a reasonable time, and the court
already had made concessions to defendant’s vacillations. The trial court, given
defendant’s history, which is reflected in the record, was justified in believing that
defendant would do everything he could to delay and obstruct sentencing and to disregard
the court’s orders.
       Finally, defendant was not prepared to proceed with his new trial motion, despite
undoubtedly being aware that he would ask to represent himself on that day if he were
not a given a different attorney. Merely because defendant stated that he did not have the
motion “with [him]” does not signify that he had one fully prepared, but had just not
brought it to court. The California Supreme Court has held that, in the face of an
untimely request, the grant of propria persona status may be conditioned on the
defendant’s ability to proceed with the trial without a continuance. (People v. Jenkins
(2000) 22 Cal.4th 900, 1039.)
       Furthermore, defendant was increasingly disrespectful to the court as it became
clear he would not get his way. The trial court chided him for continually interrupting
and raising his voice. Defendant repeatedly accused the court of manipulating the
proceedings. He also accused the court of intentionally making a false statement. A
defendant who is offensive may forfeit his right of self-representation. (Faretta, supra,
422 U.S. at pp. 834-835, fn. 46; People v. Powers (1967) 256 Cal.App.2d 904, 914-915,
disapproved on another point in People v. Taylor (2009) 47 Cal.4th 850, 881.) Given
defendant’s conduct and the other circumstances discussed ante, it was not an abuse of
discretion for the trial court to deny defendant’s request for self-representation during
sentencing.



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       Moreover, any error in denying defendant’s Faretta motions was harmless.
Although a trial court’s error in denying a timely motion to represent oneself is
automatically reversible (People v. Joseph (1983) 34 Cal.3d 936, 945-948), when the
motion is untimely, we apply the harmless error standard, i.e., whether it is reasonably
probable that a result more favorable to the defendant would have been reached in the
absence of the error. (People v. Rogers (1995) 37 Cal.App.4th 1053, 1058; People v.
Watson (1956) 46 Cal.2d 818, 835-836.) “[A] defendant who represents himself virtually
never improves his situation or achieves a better result than would trained counsel.”
(People v. Rivers (1993) 20 Cal.App.4th 1040, 1051-1052, citing Faretta, 422 U.S. at p.
834.) Moreover, the only proceedings that remained were sentencing and a possible new
trial motion hearing, and the core of the Faretta right is the right “‘to preserve actual
control over the case he [defendant] presents to the jury.’” (Rivers, at p. 1052, quoting
McKaskel v. Wiggins (1989) 465 U.S. 168, 178.)
       We conclude there would not have been a result more favorable to defendant had
he represented himself. As noted previously, the evidence of defendant’s guilt was
overwhelming, and he was in charge of his own trial. There was very little discretion in
sentencing, and defense counsel advocated for a 25-years-to-life sentence “and no more.”
The trial court disagreed. Defendant’s Faretta motion was properly denied.
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                                  BOREN, P.J.
We concur:


       CHAVEZ, J.                                 FERNS, 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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