Filed 2/10/16 P. v. Moreno 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


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

THE PEOPLE,                                                          B258124

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA381307)
         v.
                                                                     ORDER MODIFYING OPINION
ELIAS MORENO,                                                        AND DENYING REHEARING
                                                                    [NO CHANGE IN JUDGMENT]
         Defendant and Appellant.


THE COURT:*
         It is ordered that the opinion filed herein on January 27, 2016, be modified as
follows:
         1. On page 7, the fourth sentence of the third full paragraph starting with “Novoa
testified that” is deleted and the following sentence is inserted in its place:
         “Novoa also testified that he saw defendant free himself from Flores before
         Anguiano came out, and that Anguiano came out while defendant and
         Flores were struggling a second time.”

         2. On page 8, the sentence in the paragraph at the top of the page starting
with “Thus, at least nine minutes passed” is deleted and the following sentence is
inserted in its place:
         “Thus, approximately nine minutes passed after defendant freed himself
         form Flores’s grasp and after the head banging.”

__________________________________________________________________
*BOREN, P. J., ASHMANN-GERST, J., CHAVEZ, J.
       3. On page 8, the sentence in the paragraph at the top of the page starting
with “At most, the evidence suggests” is deleted and the following sentence is
inserted in its place:
       “At most, the evidence suggests that defendant might have thought his peril
       was imminent approximately nine minutes before he stabbed Flores.”

       4. On page 8, the final sentence of the paragraph at the top of the page
starting with “It says nothing of his thinking” is deleted and the following sentence
is inserted in its place:
       “It says nothing of his thinking in those minutes after freeing himself from
       Flores’s grasp.”

       There is no change in the judgment.
       The petition for rehearing is denied.




                                               2
Filed 1/27/16 P. v. Moreno CA2/2 (unmodified version)
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


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

THE PEOPLE,                                                          B258124

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA381307)
         v.

ELIAS MORENO,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Craig T.
Mitchell, Judge. Affirmed.


         Carlo Andreani, 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, Scott A. Taryle and Eric J.
Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Elias Moreno (defendant) appeals from his attempted
murder conviction. He contends that the trial court erred by failing to instruct the jury
sua sponte on attempted voluntary manslaughter as a lesser included offense of attempted
murder; and that the trial court’s denial of his “Faretta”1 motion resulted in a violation of
his constitutional right to represent himself at trial. We find no merit to either of
defendant’s contentions. Furthermore, defendant has not demonstrated prejudice from
the denial of his Faretta motion. We affirm the judgment.
                                     BACKGROUND
       Defendant was charged in count 1 with the attempted murder of Jesus Flores
(Flores) in violation of Penal Code sections 664 and 187, subdivision (a).2 Count 2
alleged that defendant assaulted Flores with a deadly weapon, in violation of section 245,
subdivision (a)(1), and count 3 alleged that the assault was committed by means likely to
produce great bodily injury, in violation of section 245, subdivision (a)(1). The
information also alleged that defendant personally inflicted great bodily injury on Flores,
within the meaning of section 12022.7, subdivision (a), and as to counts 1 and 3, that
defendant personally used a deadly and dangerous weapon, within the meaning of section
12022, subdivision (b)(1).
       Count 3 was dismissed on motion of the prosecution. The trial court instructed the
jury that since count 2 was alleged as a lesser included offense of count 1, a verdict
should be returned on only one of the two counts. The jury found defendant guilty of
count 1 as charged and found true the special allegations. On July 15, 2014, the court
sentenced defendant to a total term of 11 years in prison, comprised of the middle term of
seven years, plus a three-year enhancement due to the great bodily injury finding, and one
year for use of a deadly weapon. Defendant was ordered to pay mandatory fines and
fees, as well as victim restitution, and was given 463 days of presentence custody credit.
Defendant filed a timely notice of appeal from the judgment.

1      See Faretta v. California (1975) 422 U.S. 806 (Faretta).

2      All further statutory references are to the Penal Code, unless otherwise indicated.

                                              2
Prosecution evidence
       On February 1, 2011, defendant was having a barbeque with Aldo Amado Torres
(Torres), Michael Novoa (Novoa), and another friend in the patio of the home of Juan
Anguiano (Anguiano) and Maria Anguiano, Torres’s parents. Defendant was drinking
alcohol. The Anguiano property had several living units which Anguiano rented to
several tenants. A fight broke out after Torres held his family’s small dog over the hot
barbeque grill, while Novoa and one of his other friends laughed. The sounds of yelling
and the dog’s cries caused Anguiano and Anguiano’s friend Gabriel Rodriguez
(Rodriguez), as well as two of the tenants, Jesus Flores (Flores) and Fabian Lopez
(Lopez), to come to the patio. Flores testified that just before he reached the patio, he
heard Rodriguez and Anguiano saying such things as “Let go of the animal,” “Poor
thing,” and “Just let him go.” Anguiano testified that he heard blows, but because he is
blind, he did not know who was fighting. He tried to intervene, grabbed someone by the
neck, but his friend Rodriguez said, “Hey it’s me.” Once Flores reached the patio, he saw
defendant, Torres, Novoa, and the other friend all hitting Rodriguez. Flores intervened
and tried to break up the fight, but defendant turned on him, explained that “they” had hit
Torres, and asked Flores why he was “butting in.”
       Flores and defendant struggled. They grabbed each other by the shirt fronts, fell to
the ground, stood up, and then separated. The fighting stopped for three to four minutes,
and it seemed to Flores that the situation had calmed, when defendant approached and
struck Flores’s upper arm near his right shoulder, causing debilitating pain. Defendant
then ran to Flores’s side holding a knife in his hand. Looking furious, defendant
extended his hands to his sides, moving his hands back and forth in a taunting or
challenging manner, and said “Come on. Come on again. Come on.” Flores then
realized that the blow to his shoulder was a knife wound. Flores grabbed a patio chair to
defend himself and threw it at defendant, hitting him; but defendant continued to
advance. Defendant grabbed Flores, they fell to the ground, and Flores felt multiple
stabbings, with the most intense pain near his lung. Flores suffered 13 knife wounds, and
spent five days in the hospital with a draining tube in his lung.


                                              3
       Lopez testified that he came out of his unit in response to the sounds of fighting
and arguing. He saw the two men fall, and then saw defendant on his knees on top of
Flores. Although he initially thought that defendant was punching Flores, he soon
realized that he was stabbing Flores over and over with a steak knife. As defendant was
in mid-thrust, Lopez grabbed his wrist and told him to leave. Defendant stood, and after
Lopez yelled at him to leave, defendant ran into the street. Lopez did not see Torres or
Novoa during the altercation, but when Novoa appeared after defendant left, Lopez told
him to leave as well. Anguiano called 911 as Lopez applied pressure to Flores’s wounds.
       Later that evening Los Angeles Police Officer Roberto Ruiz went to defendant’s
address, where he spoke to defendant’s sister Blanca Moreno (Moreno). While the
officer was there, Moreno received a telephone call from defendant. When Officer Ruiz
asked to speak to him, Moreno handed over the phone. Defendant hung up. Moreno
claimed that a few days before the February 1, 2011 incident, defendant had moved and
no longer lived there.
       A little more than two weeks later, when Officer Francisco Martinez went to
Moreno’s home, she said that defendant had come there soon after the incident. He
appeared nervous, grabbed some of his clothes, and left in a car with two other men. She
said that she found his car parked in Eagle Rock two days before Officer Martinez’s visit,
and drove it home. Moreno testified that she happened upon the car a few blocks from
her daughter’s school, that her boyfriend drove it to her home, and that she did not call
law enforcement about it, although she knew that the police were looking for both the car
and defendant.
       Defendant was arrested more than two years later, when Los Angeles Police
Officer Mario Ontiveros conducted a traffic stop of the car defendant was driving. When
asked for his driver’s license, defendant claimed that he did not have it with him, and
gave his name as Damian Avalos.
Defense evidence
       Novoa testified that he attended the barbeque at Torres’s house that day with
defendant and another friend, Chris. After a few beers, when Torres began to mistreat his


                                             4
small poodle by holding him over the grill, Novoa stopped him. Novoa claimed that as
he was stopping Torres, Rodriguez came from behind and “socked” Torres in the head,
knocking him out, and then slammed Torres’s head about five times on the front step of
the house, causing Torres to bleed and his eyes to roll back. Novoa testified that
defendant then “jumped in” and socked Rodriguez on the head, at which point Flores
came from behind, hit defendant in the head, and “body slammed” defendant onto the
ground. Flores grabbed defendant by the neck, began choking him, and banged his head
on the ground. Novoa thought that defendant looked panicky, frightened, “like he was
going to die or something.”
       Novoa testified that defendant managed to get away from Flores’s grasp, but then
Flores was on top of defendant again, and Novoa watched them struggle for about four
minutes, until Anguiano and Maria Anguiano came out of the house and asked what was
happening. Novoa stopped watching the fight to speak to them. He did not look back
again until about five minutes later and did not see how the struggle ended. When Novoa
did look back after hearing a noise, Flores was walking toward him and defendant was on
the ground. Novoa thought that defendant was seriously hurt until he saw blood spurting
from Flores’s chest with every breath. He then saw defendant walking away as Lopez
came out of the shed with his father, who had a machete in his hand. Maria Anguiano
called the police. Novoa left the area when Torres told him to get out of there. Novoa
claimed that Flores was still upright and conscious when he left. He knew that defendant
used the name Damian Avalos.
Rebuttal
       Defense investigator Michael DiMatteo testified that he interviewed Novoa at a
McDonald’s restaurant one day around noon. Describing Torres as a mean drunk, Novoa
said that Torres was extremely intoxicated the day of the barbeque, when he tormented
his dog by holding it over a hot grill and became involved in a fight with one of his
guests. Novoa told Investigator DeMatteo that defendant intervened, although he never
mentioned that defendant was choked or that his head was repeatedly banged against the
concrete. Novoa did not say that Torres was “sucker-punched” or knocked out; and he


                                             5
did not mention having a conversation with Torres’s parents while Torres was
unconscious. Novoa said that defendant and the person who had attacked Torres were
fighting over a knife, and when he saw them both covered in blood, he thought that
defendant had been stabbed, but learned later that it was someone else. Novoa did not
tell him that anyone had brandished a machete that day.
                                       DISCUSSION
I. Imperfect self-defense instruction
       Defendant contends that the trial court erred by failing to instruct sua sponte on
attempted voluntary manslaughter as a lesser included offense of attempted murder.
       Attempted voluntary manslaughter is a lesser included offense of attempted
murder. (See People v. Van Ronk (1985) 171 Cal.App.3d 818, 820, 824-825.) “If a
person . . . attempts to kill in the unreasonable but good faith belief in having to act in
self-defense, the belief negates what would otherwise be malice, and that person is guilty
of . . . attempted voluntary manslaughter, not . . . attempted murder. [Citation.]” (People
v. McCoy (2001) 25 Cal.4th 1111, 1116.) An honest belief means an actual belief that it
is necessary to defend oneself from imminent peril to life or great bodily injury. (In re
Christian S. (1994) 7 Cal.4th 768, 773.)
       A trial court must instruct sua sponte on lesser included offenses that are
supported by substantial evidence. (People v. Licas (2007) 41 Cal.4th 362, 366.) To
determine whether substantial evidence supported the lesser included offense, we
consider the evidence in the light most favorable to the defendant. (People v. Millbrook
(2014) 222 Cal.App.4th 1122, 1137.) “However, the ‘substantial’ evidence required to
trigger the duty to instruct on such lesser offenses is not merely ‘any evidence . . . no
matter how weak’ [citation], but rather ‘“evidence from which a jury composed of
reasonable [persons] could . . . conclude[]”’ that the lesser offense, but not the greater,
was committed. [Citations.]” (People v. Cruz (2008) 44 Cal.4th 636, 664; see also
People v. Breverman (1998) 19 Cal.4th 142, 154, 162.) “‘We apply the independent or
de novo standard of review to the failure by the trial court to instruct on an assertedly
lesser included offense. [Citation.]’” (People v. Licas, at p. 366.)


                                               6
          In the absence of direct evidence, a defendant’s state of mind may be inferred
from the defendant’s acts and the circumstances. (See People v. Smith (2005) 37 Cal.4th
733, 741.) When the defendant does not testify, substantial evidence of his belief in the
need to defend against imminent peril may come from the testimony of witnesses to the
effect that he appeared to be fearful at the moment he used deadly force. (People v.
Oropeza (2007) 151 Cal.App.4th 73, 82.)
          Defendant contends that substantial evidence of defendant’s belief may be inferred
from Novoa’s testimony. Novoa claimed that after defendant hit Rodriguez while he was
attacking Torres, Flores came from behind, hit defendant in the head, “body slammed”
defendant onto the ground, choked him, and banged his head on the ground. Novoa
thought that defendant looked panicky, frightened, “like he was going to die or
something.” As soon as defendant managed to get out of Flores’s grasp, Flores, a “pretty
big guy,” was on top of him again, and Novoa watched them struggle for about four
minutes. Defendant also points to evidence that Flores hit defendant with a chair thrown
at him.
          Defendant argues that the stabbing was a reaction to having his head banged on
the cement. He contends that Novoa testified that the last he saw of the fight was Flores
on top of defendant, choking him and repeatedly banging his head on the ground. In fact,
however, Novoa testified that this was the last thing he saw before Anguiano came out of
the house. Novoa testified that he saw defendant free himself from Flores before
Anguiano came out, and that Anguiano came out while defendant and Flores were
struggling a second time. Because Novoa stopped watching the fight to speak to the
Anguianos and did not look back again until about five minutes later, he did not see how
that struggle ended.
          If defendant had stabbed Flores closer in time to the head banging, defendant’s
argument might have some merit. However, Novoa testified that after defendant freed
himself from Flores’s grasp, they struggled for about four minutes while Flores
“attempt[ed] to do the same thing again.” (Italics added.) Novoa did not observe the
interaction between Flores and defendant over the next five minutes, and did not see the


                                               7
stabbing or the end of the fight. Thus, at least nine minutes passed after defendant freed
himself from Flores’s grasp and after the head banging. To justify the instruction, the
defendant’s belief must have been that peril was imminent, meaning that “‘“‘from
appearances, must be instantly dealt with.’. . .”. . . [Citation.]’” (People v. Manriquez
(2005) 37 Cal.4th 547, 581.) At most, the evidence suggests that defendant might have
thought his peril was imminent some nine minutes before he stabbed Flores. It says
nothing of his thinking nine minutes after freeing himself from Flores’s grasp. (Cf.
People v. De Leon (1992) 10 Cal.App.4th 815, 824.)
       Defendant suggests that viewing the evidence in his favor requires drawing such
inferences as the following: that the choking and head banging continued during the four
minutes that Flores attempted to “do the same thing again,” as well as during the five
minutes Novoa was not watching; that Novoa inaccurately estimated the time interval due
to stress; and that the stabbing was thus a “prompt” reaction to the head banging.
Defendant does not explain what evidence gives rise to such inferences. An inference is
a deduction drawn from facts that have been established by the evidence, not from an
absence of evidence. (See Evid. Code, § 600, subd. (b).) What defendant describes is
speculation. (See People v. Morris (1988) 46 Cal.3d 1, 21, overruled on other grounds in
In re Sassounian (1995) 9 Cal.4th 535, 543-545, fn. 6.) And speculation “cannot rise to
the dignity of an inference.” (People v. Massie (2006) 142 Cal.App.4th 365, 374.)
       The only substantial evidence of what occurred during the last five or so minutes
came from Flores and Lopez. Flores testified that the fighting had stopped for three to
four minutes and all seemed calm when defendant approached and stabbed him in the
shoulder. Defendant then challenged Flores with the knife in his hand, saying, “Come
on. Come on again. Come on.” Flores then threw the patio chair to defend himself as
defendant advanced. It was at this moment that Lopez came outside and saw the two
men fall. Lopez testified that he saw defendant get on his knees on top of Flores and stab
Flores multiple times. No substantial evidence supports defendant’s claim that his
reaction was prompt, and the only substantial evidence of what did occur just before and
during the stabbing cannot reasonably give rise to a inference that defendant stabbed


                                             8
Flores while harboring an actual belief that he faced a peril so imminent that he had to act
at that moment.
       We conclude that the trial court was not required to give an instruction on
imperfect self-defense. Regardless, any error in failing to do so would have been
harmless. Defendant cites People v. Thomas (2013) 218 Cal.App.4th 630, 633-634, 646,
as authority for the proposition that error in failing to instruct on voluntary manslaughter
is properly reviewed under the more stringent standard for federal constitutional error,
which requires reversal unless the reviewing court determines that the error was harmless
beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.) The
California Supreme Court has instructed that the applicable standard is the test for state
law error enunciated in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), under
which reversal is unwarranted unless an examination of all the evidence demonstrates a
reasonable probability that the result would have been more favorable to the defendant
had the error not occurred. (People v. Breverman, supra, 19 Cal.4th. at pp. 149, 177-178;
accord, People v. Blakeley (2000) 23 Cal.4th 82, 93-94 [imperfect self-defense]; People
v. Randle (2005) 35 Cal.4th 987, 1003 [imperfect defense of another], overruled on other
grounds in People v. Chun (2009) 45 Cal.4th 1172, 1201.) Until a higher court rules
otherwise, we follow the California Supreme Court. (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.)
       In any event, we conclude that the court’s failure to instruct on attempted
voluntary manslaughter was harmless under either standard. The accounts given by
Flores and Lopez about the final five minutes were uncontradicted and detailed. By
contrast, Novoa did not see what happened, and his testimony about what he did see
conflicted with the account he gave to the defense investigator. Until trial, Novoa never
mentioned that Torres was knocked unconscious, that defendant was choked, or that
defendant’s head was banged against the concrete; and he did not mention having a
conversation with the Anguianos for five minutes while their son lay before them
unconscious and bleeding. Novoa told the investigator that he saw defendant and Flores
fighting over a knife, and did not say that someone brandished a machete. Thus, the only


                                              9
substantial evidence of the five minutes preceding the stabbing established that the
fighting had stopped, the combatants had separated, and the situation appeared calm,
when defendant advanced upon Flores with the knife. The only reasonable inference to
be drawn from the evidence is that defendant acted in anger and revenge, not from a
belief that he was in imminent peril. As defendant offers only speculation to the
contrary, there is no reasonable probability that an instruction on imperfect self-defense
would have changed the result. We further find beyond a reasonable doubt that the
absence of the instruction did not affect the trial’s result.
II. Faretta motion
       Defendant contends that the trial court abused its discretion in denying his Faretta
motion to represent himself. The Sixth Amendment to the United States Constitution
grants criminal defendants the right to counsel in all proceedings that may substantially
affect their rights. (Mempa v. Rhay (1967) 389 U.S. 128, 133-134; Faretta, supra, 422
U.S. at p. 807.) The right to counsel may be waived if the waiver is knowing and
intelligent. (Faretta, at p. 807; People v. Bradford (1997) 15 Cal.4th 1229, 1363.) So
long as the defendant’s request is made knowingly and voluntarily, and asserted within a
reasonable time prior to trial, the right of self-representation is absolute. (People v.
Doolin (2009) 45 Cal.4th 390, 453.) Otherwise, an untimely motion is left to the trial
court’s discretion. (People v. Windham (1977) 19 Cal.3d 121, 127-129 (Windham).)
       When defendant made his Faretta motion on May 22, 2014, the trial court found it
untimely. Defendant contends otherwise and that his right to represent himself was
absolute and not a matter of the court’s discretion. There is no bright-line test of
timeliness for Faretta motions. (See People v. Lynch (2010) 50 Cal.4th 693, 771,
overruled on other grounds in People v. McKinnon (2011) 52 Cal.4th 610, 636-643.)
However, Faretta motions made on the “eve of trial” are often found to be untimely.
(Lynch, supra, at pp. 722-723, citing People v. Valdez (2004) 32 Cal.4th 73, 102 [motion
made “moments before jury selection was set to begin”]; People v. Horton (1995) 11
Cal.4th 1068, 1110 [motion made on the date scheduled for trial]; People v. Clark (1992)
3 Cal.4th 41, 99-100 [case continued day-to-day with “jury selection set to begin at any


                                               10
time”].) “[T]imeliness 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. An analysis based on these
considerations is in accord with the purpose of the timeliness requirement, which is ‘to
prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the
orderly administration of justice.’ [Citation.]” (People v. Lynch, supra, at p. 724,
quoting People v. Burton (1989) 48 Cal.3d 843, 852.)
       A consideration of the totality of the circumstances should include such factors as
“the time between the motion and the scheduled trial date, . . .whether trial counsel is
ready to proceed to trial, the number of witnesses and the reluctance or availability of
crucial trial witnesses, the complexity of the case, any ongoing pretrial proceedings, and
whether the defendant had earlier opportunities to assert his right of self-representation.”
(Lynch, supra, 50 Cal.4th at p. 726.) It is apparent from the record that the trial court
considered these factors. The pretrial conference was held March 26, 2014, then
continued to April 17, and thereafter trailed to April 21. When trial was scheduled for
April 29, 2014, the court indicated there would be no further continuances. Prosecution
witnesses appeared on the trial date, and the prosecutor was ready for trial, but agreed to
a defense request to continue trial to May 22, 2014. Contrary to defendant’s claim that
there had been no earlier opportunities to assert his right of self-representation, he
appeared in court on each such date. On May 22 (Thursday), the prosecution announced
ready, and a substitute attorney appearing for defendant’s trial counsel stated that the
defense would be ready the following Tuesday, May 27, 2014. It was then that defendant
expressed an interest in representing himself. In finding the Faretta motion untimely, the
trial court observed that defendant first appeared in court in June 2013, nearly one year
before, and had made “countless” appearances since then; and the court noted that it had
previously indicated that there would be no more continuances. The prosecutor expected
to call 8 to 12 witnesses and estimated a six-day trial. The defense expected to call two
witnesses. The court asked defendant whether he would be ready to proceed to trial the
following Tuesday, as trial would not be continued, and defendant replied, “I don’t think


                                             11
so.” The court “[took] that as a no,” found the request to be a delaying tactic, and denied
the motion.
       As defendant would not be ready for trial, granting the motion would require a
delay in the proceedings. This, in combination with the other factors discussed above,
support the court’s finding that the motion was untimely. The trial court must be
afforded “‘wide latitude in balancing the right to counsel of choice against the needs of
fairness . . . , and against the demands of its calendar.’” (Lynch, supra 50 Cal.4th at p.
728.) Thus, the decision to grant the motion was not constitutionally mandated by the
Sixth Amendment, but was a matter within the discretion of the trial court. (Id. at pp.
721-722; Windham, supra, 19 Cal.3d at pp. 124, 127-129.)
       Defendant contends that in exercising its discretion, the trial court was required to
hold a separate inquiry and express its reasoning on the record. The trial court was not
required to state the reasons underlying its decision to deny a motion for self-
representation; it was required only to establish a record sufficient to review its
discretion. (Windham, supra, 19 Cal.3d at p. 129, fn. 6.) To establish such a record, the
trial court should inquire into defendant’s reasons for the request, the quality of counsel’s
representation, any prior proclivity of defendant to substitute counsel, the length and
stage of the proceedings, and any disruption or delay which might reasonably be expected
if the court granted the motion. (Id. at pp. 128-129.)
       “[A] trial court’s exercise of discretion in denying an untimely Faretta motion is
properly affirmed if substantial evidence in the record supports the inference that the
court had those factors in mind when it ruled. [Citation.]” (People v. Bradford (2010)
187 Cal.App.4th 1345, 1354.) We can infer from this record that the trial court
considered some but not all the suggested Windham factors. Although the only inquiry
made by the court was directed toward the timeliness of the motion, it is clear that during
that inquiry, the court considered the length and stage of the proceedings, the delay which
might reasonably be expected, and the absence of prior Faretta motions. The court made
no inquiry of defendant’s reasons or the adequacy of counsel’s representation, and as
defendant points out, defendant unsuccessfully attempted to address the court several


                                             12
times. Although a trial court may deny an untimely motion for self-representation solely
on the ground that a continuance would be required, the court must nevertheless inquire
into defendant’s reasons for the request and any claimed inadequacy of counsel. (People
v. Hernandez (1985) 163 Cal.App.3d 645, 651, fn. 4, 653-655.) “[T]he court may not
rely solely on its courtroom observations. [Citations.]” (People v. Rivers (1993) 20
Cal.App.4th 1040, 1049.)
       As defendant’s motion was untimely, the trial court’s failure to make a proper
inquiry did not present a constitutional issue, and does not warrant automatic reversal.
(See Windham, supra, 19 Cal.3d at p. 129, fn 6.) Any error must be reviewed under the
harmless error test of Watson. (People v. Rivers, supra, 20 Cal.App.4th at p. 1050.)
Under that test, it is defendant’s burden to establish “a reasonable probability that error
affected the trial’s result.” (People v. Hernandez (2011) 51 Cal.4th 733, 746.)
       Defendant has failed to meet his burden and instead simply argues that if this court
does not agree that automatic reversal is warranted, the matter should be remanded for an
evidentiary hearing. We reject any suggestion that defendant should be relieved of his
burden because a review for harmless error may be difficult. Defendant’s obligation
requires a review of the whole record to demonstrate a reasonable probability that he
would have achieved a more favorable result absent the error. (See Watson, supra, 46
Cal.2d at pp. 836-837; Cal. Const., art. VI, § 13.) Such a review, particularly where the
Windham inquiry was inadequate, requires the evaluation of the error in light of the
subsequent proceedings. (People v. Rivers, supra, 20 Cal.App.4th at p. 1051.)
       Defendant has failed to refer to subsequent proceedings. The record does not
show that defendant ever renewed his request, or that he complained about defense
counsel or her strategy and tactics. He does not assert ineffective assistance of counsel or
suggest what he might have done differently from trial counsel. Our review of the record
reveals no indication that defendant might have achieved a better result had he
represented himself. Indeed, “a defendant who represents himself virtually never
improves his situation or achieves a better result than would trained counsel. [Citation.]”
(People v. Rivers, supra, 20 Cal.App.4th at p. 1051; see also Faretta, supra, 422 U.S. at


                                             13
p. 834 [“It is undeniable that in most criminal prosecutions defendants could better
defend with counsel’s guidance than by their own unskilled efforts”].) We conclude that
the trial court’s inadequate inquiry resulted in no harm.
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                  ____________________________, J.
                                                  CHAVEZ

We concur:



__________________________, P. J.
BOREN



__________________________, J.
ASHMANN-GERST




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