Filed 6/25/13 P. v. Nichols CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT
 
 

THE PEOPLE,
                                                                                           F063374
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF132222A)
                   v.
                                                                                         OPINION
ERIC LAVELLE NICHOLS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
         Carol A. Navone, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert
Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       Defendant appeals his conviction of evading a police officer, contending he was
improperly denied a continuance to prepare for trial after his motion to represent himself
was granted. He argues the failure to grant a continuance violated his right to due
process of law. We disagree and affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       At about 11:30 p.m., a California Highway Patrol (CHP) officer in a marked patrol
car observed a black SUV speeding down a city street. He saw only one occupant in the
SUV, and had the impression it was a man. The officer followed the SUV, which
continued at high speed even after the officer turned on the patrol vehicle’s red lights and
siren. The SUV went through the parking lot of an apartment complex, then back out
onto the street, where it ran a stop sign and a red traffic light. The officer lost sight of the
vehicle for a few seconds when it went around a corner; when he turned the same corner,
he spotted the disabled SUV where it had crashed into the curb and the wheel had
buckled under. The driver’s door was open, but there was no one inside and the CHP
officer saw no one in the vicinity. Inside the SUV, the officer found a cell phone
displaying defendant’s first name and a digital camera containing pictures of defendant
and the SUV. About the same time, residents in the area were on their front porch when
defendant came from the side of the house and seated himself on a chair on the porch.
The residents called the police over and they arrested defendant.
       Defendant was charged with one felony count of evading a peace officer by
driving in willful or wanton disregard for the safety of persons or property, in violation of
Vehicle Code section 2800.2. Defendant pled not guilty, and trial was set for August 9,
2010. On the trial date, defendant indicated he intended to call as a witness Lajena
Bolton, who would take responsibility for driving the vehicle on the night in issue. The
court appointed counsel to advise her and Bolton chose to invoke her Fifth Amendment
right against self-incrimination. While the court was still hearing motions in limine, it

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granted a continuance because of a dispute about production of recordings of phone calls
defendant made to Bolton while he was in jail, which defendant asserted contained
exculpatory information.
        On September 23, 2010, the trial court granted defendant’s motion for
appointment of a new attorney to represent him. (Marsden1 motion.) The trial was
continued twice, and then trailed to March 21, 2011. On that date, the trial court denied
defense counsel’s motion to withdraw as counsel based on an asserted conflict of interest.
On March 23, 2011, defendant made another Marsden motion, which the trial court
denied. On March 24, 2011, after defense counsel indicated he was withdrawing a
motion in limine to be permitted to present Bolton’s statements through the testimony of
a defense investigator because Bolton was unavailable as a witness, defendant asserted he
wished to make a motion to represent himself at trial. (Faretta2 motion.) Defendant
assured the court that he was ready to proceed with trial that day. The trial court
explained the hazards of self-representation and warned that defendant would not be
allowed to change his mind and obtain a continuance to obtain an attorney in the middle
of trial.
        Later, when the trial court asked what witnesses defendant would present and
explained they would need to be ready when the prosecution rested, defendant protested
that he “just got this case today.” The court reminded defendant he had said he was ready
to go forward, and advised that he would not be granted a continuance because he was
unprepared. The People played some of the recordings of defendant’s telephone
conversations with Bolton for the jury. In the excerpts presented, defendant seemed to be
coaching Bolton to tell a fabricated story, first that “Felicia” had been driving the vehicle


1       People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
2       Faretta v. California (1975) 422 U.S. 806 (Faretta).


                                                3
that evaded police, with defendant as a passenger, and later that Bolton herself had been
driving. At one point in the recordings, Bolton reported she had spoken with defendant’s
attorney and had told him what they had “been rehearsing.” Apparently, Bolton
contacted the investigating CHP officer and the deputy district attorney and admitted
driving the vehicle at the time it evaded the pursuing officer.
       The court granted the People’s motion to exclude as hearsay evidence of Bolton’s
statements to the defense investigator, in which she claimed she had been driving. Bolton
did not appear for trial and did not testify; defendant presented no defense evidence and
was convicted. He appeals, contending the trial court violated his constitutional right to
due process by failing to grant him a reasonable continuance to prepare his case for trial.
                                       DISCUSSION
       “The Sixth and Fourteenth Amendments of our Constitution guarantee that a
person brought to trial in any state or federal court must be afforded the right to the
assistance of counsel before he can be validly convicted and punished by imprisonment.”
(Faretta, supra, 422 U.S. at p. 807.) A criminal defendant also has a right to refuse such
assistance and conduct his or her own defense, “providing he or she knowingly and
intelligently waives the right to counsel [citation] and ‘is able and willing to abide by the
rules of procedure and courtroom protocol.’ [Citation.]” (People v. Bradford (1997) 15
Cal.4th 1229, 1363-1364 (Bradford).) “Although a defendant need not himself have the
skill and experience of a lawyer in order competently and intelligently to choose self-
representation, he should be made aware of the dangers and disadvantages of self-
representation, so that the record will establish that ‘he knows what he is doing and his
choice is made with eyes open.’ [Citation.]” (Faretta, supra, at p. 835.)
       In order to invoke the constitutional right of self-representation, the defendant
“must make an unequivocal assertion of that right within a reasonable time prior to the
commencement of trial. [Citations.] When a motion for self-representation is not made

                                              4
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. [Citations.]” (Bradford, supra, 15 Cal.4th at
p. 1365.) In exercising that discretion, the court should consider such factors as “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.” (People v. Windham (1977) 19 Cal.3d 121, 128 (Windham).)
       Whether to grant a continuance of trial is a matter within the broad discretion of
the trial court. (People v. Jenkins (2000) 22 Cal.4th 900, 1037 (Jenkins).) It is within the
trial court’s discretion to deny a continuance when it reasonably believes the request for a
continuance is based on a desire to delay the proceedings for the defendant’s benefit. (Id.
at p. 1039.)
       There is no violation of a defendant’s rights when his Faretta motion is made on
the eve of trial and he is given the choice to proceed with counsel or to proceed without
counsel on condition he proceed immediately. In People v. Clark (1992) 3 Cal.4th 41,
the defendant was convicted of six counts of first degree murder with special
circumstances and was sentenced to death. While the court was hearing the final pretrial
motions, the defendant purported to discharge one of his two attorneys. (Id. at p. 90.)
Subsequently, he made an oral Faretta motion, which was denied as untimely. (Clark, at
pp. 91-92.) On the day set for opening statements, the defendant renewed his Faretta
motion, asking to represent himself with his second attorney as co-counsel, but stating he
was not ready for trial. (Clark, at p. 92.) Because he was not ready, the trial court denied
the motion. (Ibid.) Twice more in the next few days, the defendant renewed his motion,
but sought appointment of new co-counsel. (Id. at p. 93.) The trial court stated it would
consider the Faretta motion, but, if granted, the defendant would represent himself
without the assistance of counsel. (Clark, at p. 93.) The defendant stated he

                                               5
“‘absolutely’” wanted to represent himself. (Ibid.) The trial court advised the defendant
of the rights, responsibilities, and risks involved in self-representation, then found a
knowing and intelligent waiver and permitted the defendant to represent himself; it kept
his appointed attorneys as standby counsel. (Ibid.) Later, due to his disruptive conduct
during trial, the trial court revoked the defendant’s in propria persona status and
reappointed counsel. (Id. at pp. 94-96.)
       On appeal, the defendant challenged the granting of his Faretta motion. In
addition to concluding “that defendant may not be heard to argue on appeal that his own
motion should not have been granted” (Clark, supra, 3 Cal.4th at pp. 109, 110), the court
rejected the defendant’s contention “that the trial court improperly conditioned its grant
of his Faretta motion on waiver of any necessary continuance.” (Ibid.) The court
distinguished earlier cases indicating a defendant whose motion for self-representation is
granted should be given a reasonable time to prepare.

       “Although a necessary continuance must be granted if a motion for self-
       representation is granted, it is also established that a midtrial Faretta
       motion may be denied on the ground that delay or a continuance would be
       required. [Citations.] Unlike the trial court in Bigelow, supra, 37 Cal.3d
       731, this trial court made clear its intent to deny the Faretta motion as
       untimely if a continuance would be necessary. It had in fact denied other
       Faretta motions on this basis. The Faretta motion was ultimately granted
       only when defendant expressly represented he was able to proceed without
       a continuance.” (Clark, supra, 3 Cal.4th at p. 110.)
       In Jenkins, the court followed the Clark decision. There, the defendant was
sentenced to death after being convicted of first degree murder and other offenses. On
appeal, he contended his request for a continuance during the penalty phase should have
been granted after he was permitted to represent himself with the help of advisory
counsel. (Jenkins, supra, 22 Cal.4th at pp. 1037-1038.) When he sought self-
representation, the defendant “angrily rejected counsel’s claim that he was unprepared.”
(Id. at p. 1038.) The trial court warned the defendant a request for a continuance would

                                              6
constitute grounds for denying self-representation, and the “defendant accepted pro se
status on the understanding that no additional time would be granted.” (Ibid.) The trial
court “was within its discretion in denying the requested continuances on the ground the
court reasonably believed the requests were based upon a desire to delay the proceedings
in an effort to affect the composition of the jury or to cause a mistrial.” (Ibid.)
       The court rejected the defendant’s contention that, once he was permitted to
represent himself, the denial of a continuance to prepare for trial deprived him of due
process. The court stated:

                “We observed in People v. Clark, supra, 3 Cal.4th 41, that ‘a
       necessary continuance must be granted if a motion for self-representation is
       granted.’ [Citation.] On the other hand, in the Clark case we also stated
       that ‘it also is established that a midtrial Faretta motion may be denied on
       the ground that delay or a continuance would be required,’ and sanctioned
       the trial court’s decision to condition the granting of the right of self-
       representation on defendant’s waiver of a continuance.… [¶] … [¶]

               “No denial of due process appears in the court’s refusal to grant
       defendant’s motions for continuance. ‘[I]t is not every denial of a request
       for more time that violates due process even if the party fails to offer
       evidence or is compelled to defend without counsel.’ [Citation.] Instead,
       ‘[t]he answer must be found in the circumstances present in every case,
       particularly in the reasons presented to the trial judge ....’ [Citation.] Even
       in a capital case, if the defendant cannot show he or she has been diligent in
       securing the attendance of witnesses, or that specific witnesses exist who
       would present material evidence, ‘[g]iven the deference necessarily due a
       state trial judge in regard to the denial or granting of continuances,’ the
       court’s ruling denying a continuance does not support a claim of error
       under the federal Constitution. [Citations.]” (Jenkins, supra, 22 Cal.4th at
       pp. 1039-1040.)
       In People v. Valdez (2004) 32 Cal.4th 73 (Valdez), the defendant was convicted of
murder and other offenses, and was sentenced to death. Prior to trial, he made two
Marsden motions and two Faretta motions, all of which were denied. On appeal, he
contended the denial of his Faretta motions violated his constitutional right to represent
himself. The defendant’s second Faretta motion was made immediately prior to jury
                                              7
selection. (Valdez, supra, 32 Cal.4th at p. 101.) The defendant expressed his belief that
he could do a better job if he did some investigation and stated he would like to “go pro
per.” (Ibid.) He told the court he would not be prepared to go to trial that day if his
request were granted. (Ibid.) The trial court indicated it would not grant the request,
because it was made to delay the trial; however, it told the defendant he could proceed in
propria persona that day, with standby counsel. (Id. at pp. 101-102.) On appeal, the
defendant argued the motion was timely because it was made at the first available
opportunity. The court concluded it was untimely because it was made moments before
jury selection was set to begin and there were earlier opportunities to make it. (Id. at
p. 102.) The unconditional right of self-representation is required to be invoked within a
reasonable time prior to trial, in order to prevent misuse of the motion to unjustifiably
delay the trial or obstruct the orderly administration of justice. (Ibid.) “‘If the motion is
untimely—i.e., not asserted within a reasonable time prior to trial—the defendant has the
burden of justifying the delay.’ [Citation.]” (Ibid.) When a Faretta motion is untimely,
self-representation is not a matter of right, but is subject to the trial court’s discretion.
(Valdez, at p. 103.) The trial court considered the proper factors in exercising its
discretion. The court concluded:

               “The trial court found the Faretta motion was not made in good
       faith, but made ‘merely for the purposes of obtaining a continuance’ and
       denied the motion. It is clear from the record that the trial court made an
       appropriate inquiry, and based on that inquiry denied defendant’s Faretta
       motion. But in response to defendant’s insistence that he had a
       constitutional right to proceed in propria persona, the court indicated that it
       would allow defendant to represent himself if he was able to proceed with
       the trial without delay. It did not, however, actually grant the Faretta
       motion.

              “‘Although a necessary continuance must be granted if a motion for
       self-representation is granted, it is also established that a midtrial Faretta
       motion may be denied on the ground that delay or a continuance would be
       required.’ [Citation.] Thus, the court acted within its discretion in

                                                8
       concluding that defendant could represent himself only if he was ready to
       proceed to trial without delay.” (Valdez, supra, 32 Cal.4th at p. 103.)
       Thus, in recent cases,3 the California Supreme Court has found it is not a violation
of due process to grant a motion for self-representation made during or on the eve of trial
without granting defendant a continuance to prepare for trial. The trial court may deny
such a motion if it would require a continuance, or it may grant the motion only if the
defendant represents he is ready to proceed to trial as scheduled.
       Defendant made a successful Marsden motion in September 2010, which resulted
in several months’ delay of the trial while the new attorney prepared. On March 10,
2011, 11 days before trial was scheduled to begin, defendant’s second attorney filed a
motion to withdraw as counsel, citing a conflict of interest. That motion was heard on
March 21, 2011, the day set for trial; defendant assured the court then that he still wanted
his attorney to represent him, in spite of the conflict cited by counsel as the basis for the
motion. The motion to withdraw was denied. Two days later, defendant requested a
Marsden hearing; the hearing was held and the motion was denied. The trial court
considered it a rehash of defense counsel’s motion to withdraw.
       The next day, when the court began hearing the motions in limine, defendant made
a Faretta motion. After initially stating he wanted to make a Faretta motion because his
attorney was not doing what he asked him to do, defendant stated he was claiming
ineffective assistance of counsel. The trial court stated that would be a Marsden motion,
and reminded defendant his Marsden motion had been heard and denied the previous day.

3       Defendant argues that, when a defendant exercises his or her right of self-representation
on the eve of trial and the court grants the motion, the defendant must be granted a reasonable
continuance to prepare for trial or due process is violated. The cases he relies on in support of
that proposition, however, predate Clark, Jenkins, and Valdez. (See People v. Maddox (1967) 67
Cal.2d 647; People v. Wilkins (1990) 225 Cal.App.3d 299; People v. Hill (1983) 148 Cal.App.3d
744; People v. Cruz (1978) 83 Cal.App.3d 308.)




                                                9
The court proceeded to warn defendant of the dangers of self-representation and to try to
demonstrate to him that he did not understand the legal procedures and concepts
necessary to conduct his own defense. It advised defendant that the evidence he wished
to put on was unlikely to be allowed in.
       Defendant complained that his attorney had told him the previous day that the
attorney would not put on any witnesses, would not present defendant’s evidence, and
believed defendant was guilty. Defendant also complained that his attorney had
withdrawn defendant’s motion in limine No. 20, which sought admission of Bolton’s
statements to a defense investigator, because Bolton was unavailable as a witness, having
indicated she would invoke her Fifth Amendment right against self-incrimination.
Further, defendant stated he was not comfortable in the courtroom where the judge had
heard his attorney’s motion to withdraw and his own Marsden motion and had denied
both; he asserted he felt he would not be treated fairly and he had asked his attorney to
find another courtroom.
       Defendant assured the court he was prepared to defend himself that day, but the
trial court expressed doubt. The trial court gave defendant a Faretta waiver form to fill
out if he still wished to represent himself. When defendant returned the form, he had
answered “no” to this question: “You have stated to the Court that you do not wish to be
represented by an attorney, even though one would be provided to you at no expense if
you cannot afford one, and that you wish to represent yourself. In making this decision to
act as your own attorney, you have considered and understand the following.…”
Defendant indicated he understood the following 15 items, but he did not agree that he
did not want an attorney to represent him. He asserted he did want an attorney, just not
the one currently appointed to him. The trial court again reminded defendant his
Marsden motion had been denied, and stated it would not be relitigated. It then gave
defendant a choice:

                                            10
       “THE COURT: … Now, do you want to proceed with him as your lawyer
       or do you want to represent yourself? [¶] If you do want to represent
       yourself, you need to tell me that you understand all those 1 through 15,
       and I’ll get [the attorney] off the case, and you can represent yourself. I’ll
       get a [jury] panel over here and we can get started. [¶] If you don’t want to
       represent yourself, you tell me. We’ll leave [the attorney]. We’ll get a
       panel over here, and we’ll get started. Either way, I need a decision.”
       Defendant stated he wished to represent himself. He asked further questions about
filling out the waiver form, and the court expressed its opinion defendant was “fooling
around and messing with the Court and … wasting the Court’s time.” The trial court
relieved defendant’s attorney. After the attorney turned over his materials to defendant,
the trial court proceeded to hear the motions in limine.
       In subsequent discussions with the trial court, defendant indicated he wished to
play some of the CD recordings of his jailhouse telephone conversations for the jury,
because he believed they contained exculpatory information. He did not have the CDs or
transcripts of them in his possession, however, and he had not yet listened to them.4
Defendant knew at the time he chose to represent himself that the CDs were part of the
defense he wished to present; he also knew he had not listened to the CDs. Nonetheless
he assured the trial court he was ready to proceed with trial that day, and chose self-
representation knowing the trial would not be delayed if he was unprepared.
       The cases indicate a trial court has discretion to grant or deny a motion for self-
representation that is untimely or made for purposes of delay. Defendant’s motion was
made three days after the date set for trial, while the court was addressing motions in
limine. Defendant argues his motion was not untimely because he made it at the first
opportunity after he learned his attorney would not present the evidence he wished to
present in his defense. Defendant, however, gave multiple reasons for not wishing to
4      Defendant’s attorney did not have the CDs with him when he was relieved and turned his
other materials over to defendant; he gave defendant the CDs and the transcripts in his
possession the following day.


                                             11
have his attorney represent him. His motion to have new counsel appointed had been
heard and denied the previous day. Defendant vacillated between asserting he wished to
represent himself and stating he wished to be represented by counsel, but not the counsel
assigned to him. Defendant seemed more interested in relitigating his unsuccessful
Marsden motion and trying to maneuver the trial court into appointing a different
attorney, than in exercising his right to represent himself at trial. The circumstances
justified the trial court’s conclusion defendant was attempting to obstruct and delay trial.
       Defendant also contends the trial court did not expressly condition the grant of the
Faretta motion on defendant proceeding without a continuance. The choice the trial
court gave defendant was clear, however: He could represent himself and proceed to trial
that day, or he could continue to be represented by his appointed attorney and proceed to
trial that day. This was the same choice given to the defendants in Clark, Jenkins, and
Valdez. It was clear the trial court intended to proceed with the trial that day regardless
of defendant’s choice. Defendant stated multiple times that he was prepared and ready to
begin trial that day. He chose to represent himself. Defendant cannot now complain
because he regrets the choice he made.
       The trial court did not abuse its discretion when it granted defendant’s motion for
self-representation only on condition he proceed without delay. After granting the
motion based on defendant’s representation he was ready for trial and that he wished to
represent himself and go forward that day, the trial court did not abuse its discretion by
requiring defendant to proceed without a continuance. Under the circumstances,
proceeding without granting defendant a continuance was not a violation of due process.




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                                 DISPOSITION
     The judgment is affirmed.



                                               _____________________
                                                            HILL, P. J.
WE CONCUR:


 _____________________
WISEMAN, J.


 _____________________
LEVY, J.




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