Filed 9/10/14 P. v. Cleveland 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,                                                          B251308

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA093355)
         v.

ROBERT CLEVELAND,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Gary J.
Ferrari, 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, Chung L. Mar and Viet H.
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Robert Cleveland (defendant) appeals from his
conviction of failure to register as a sex offender. He contends that the judgment must be
reversed because he was inadequately advised of the dangers of self-representation,
resulting in an invalid waiver of his constitutional right to counsel. He also contends that
the trial court should have granted his request for self-representation sooner or granted a
continuance to permit him more time to prepare for trial. We find no merit to defendant’s
contentions and affirm the judgment.
                                     BACKGROUND
Procedural history and prosecution evidence
       Defendant was charged with failure to register after an address change in violation
of Penal Code section 290, subdivision (b).1 The information also alleged that defendant
had suffered 11 prior serious or violent felony convictions or juvenile adjudications
within the meaning of the “Three Strikes” law (§§ 667, subd. (b)-(i), 1170.12, subd. (a)-
(d)), and had served five prior prison terms within the meaning of section 667.5,
subdivision (b).
       The evidence showed that defendant had been convicted of a violation of section
288a in 1972 and several counts of section 288, subdivision (b) in 1992.2 Parole Agent
Kimiko Hamaya testified that defendant failed to report to the office within 24 hours after
his most recent release from custody on August 1, 2012. Agent Hamaya contacted Long
Beach Police Detective Sean Irving, who testified that he checked the sex offender
registry and found that defendant had signed acknowledgements of his registration
requirements, had registered or updated his registration in 2002, 2003, 2011, and 2012,
and that his last registration had been filed on June 4, 2012. However, when Detective
Irving attempted to locate defendant at his last registered address, he learned that the
address did not exist. Detective Irving then went to another address found in defendant’s

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

2      These convictions were for sex offenses that required lifetime annual registration
as a sex offender and registration update within five days of every change of residence.
(See § 290, subd. (b).)

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parole records, where he was told that defendant no longer resided. Defendant was
arrested September 11, 2012.
       Defendant presented no evidence, but argued that his plea agreement in 1992 did
not call for registration or monitoring, that enforcing the 2007 law that required
registration would violate the terms of his plea bargain, and that the district attorney
should be required to abide by the original agreement.
       A jury found defendant guilty as charged and found true the prior conviction
allegations. On August 1, 2013, the trial court sentenced defendant to 25 years to life in
prison. The court struck the prior prison term allegations for purposes of sentencing,
ordered defendant to pay mandatory fines and fees, and to register upon release.
Defendant was given a total of 648 days of presentence custody credit.
       Defendant filed a timely notice of appeal from the judgment.
Faretta waiver3
       Defendant was represented by counsel at his preliminary hearing, but on October
12, 2012, the day of his felony arraignment, defendant orally requested permission to
represent himself. Defendant signed a preprinted “Faretta waiver,” an advisement and
waiver form listing his trial rights, the charges against him with potential consequences,
and the common dangers and disadvantages of self-representation. Defendant
acknowledged with his initials that he understood each advisement. Defendant wrote on
the form that he was 58, that he had graduated from high school, had completed one year
of college, had studied law, and had proceeded in pro. per. three times in the past. Three
days later, the trial court warned defendant orally and in writing of the dangers and
disadvantages of self-representation, saying that in 29 years, the court had seen “many
people represent themselves before,” and that “[m]ost of them made a big mistake.”
Defendant was told that in the court’s experience, pro. per. defendants usually did not
help themselves, but in fact “hurt themselves because they think they are smart and they
are doing the right thing and people tell them in jail you should represent yourself.”


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

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Defendant responded that he still wanted to represent himself. The court granted the
motion, explaining that defendant had answered the questions on the form properly and
the court had no reason to believe that defendant did not “have enough thinking to do it.”
The case was then assigned to a different judge in a trial department where a pretrial
conference was scheduled for November 2, 2012.
       At the pretrial conference the court explained the rules of the courtroom to
defendant, ascertained that defendant had represented himself before, noted that
defendant had 11 prior strikes, and allowed defendant some time to confer with the
prosecutor regarding offers. The prosecutor stated her intention to proceed as a third-
strike case and noted defendant’s exposure was 25 years to life plus three years. The
prosecutor offered eight years in prison. After defendant rejected the offer and refused to
waive his speedy trial right, the trial court set a trial date.
       On December 6, 2012, both sides announced ready for trial. The following day
defendant requested counsel be appointed. The trial court granted the request, revoked
defendant’s pro. per. status, appointed counsel, and after defendant waived time,
scheduled a new pretrial conference. After being continued three times, the pretrial
conference was held on March 18, 2013.4
       At the March court date, defendant filed a petition for writ of habeas corpus in pro.
per., alleging errors in the 1992 case resulting in the order that he register as a sex
offender. The petition was denied. The trial court stated that defendant had submitted a
written Marsden motion5 and held an in camera hearing in which defendant was allowed
to explain his dissatisfaction with his counsel. During the hearing, defendant claimed

4      Defendant refers to the proceedings of March 18 as occurring on March 13, 2013.
As there is no record of proceedings on that date, we presume a typographical error on
the cover page of the sealed reporter’s transcript of the Marsden hearing of March 18,
2013.

5      See People v. Marsden (1970) 2 Cal.3d 118 (Marsden). A Marsden motion seeks
the appointment of new counsel due to ineffective assistance or a substantial conflict.
(See People v. Smith (1993) 6 Cal.4th 684, 695.) Defendant’s written Marsden motion
does not appear in the record on appeal.

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that defense counsel had failed to consult him despite telling defendant two or three times
that he would “come up” to do so. Defendant denied that he had asked to have another
attorney appointed, and stated he would rather proceed in pro. per. The court questioned
counsel, who explained that he had consulted with defendant multiple times at the jail
and at the courthouse, and had researched the defenses that defendant wished to present,
but found none of them applicable. The trial court denied the motion.
       In open court defendant made an oral motion to represent himself once again. The
trial court found that defendant had vacillated. The court noted that defendant had been
granted pro. per. status in October 2012, and he represented himself until December when
he asked for counsel after announcing ready for trial. Defendant then made his second
Faretta request only after his Marsden motion was denied. The court denied the Faretta
request and scheduled trial for April 9, 2013.
       On April 9, defendant served his counsel in court with summons and a civil
complaint seeking damages for emotional distress. The court reviewed defendant’s
requests for pro. per. status and his changes of mind, and expressed the suspicion that the
lawsuit was “some kind of subterfuge” to have counsel relieved or to obtain a
continuance. Defendant acknowledged he was not prepared to go to trial at that time and
was unaware that trial was scheduled to begin that day. The court asked, “Basically you
filed the lawsuit to get him off the case, right? When you couldn’t do it last time, right?”
At first, defendant replied, “You’re entitled to your opinion,” but when the court said,
“I’m asking you,” defendant said, “It is a right. It is a right, a constitutional right. I can
sue him or any of these other people if I feel like it.” Asked whether he wanted to
represent himself, defendant said, “I didn’t say that.” The court told defendant that
everyone had the right to self-representation, and defendant replied, “I have a right to
counsel, too,” adding, “I have a right to a conflict-free counsel.” Defense counsel
declared a conflict of interest, was permitted to withdraw, and the matter was continued
to the following week for a pretrial conference and appointment of new counsel.
       After new counsel was appointed, trial was scheduled for June 4, 2013, trailed
until June 6 and then to June 10. The minutes reflect that on June 6, defendant again


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requested to proceed in pro. per. On June 10, defendant signed a new Faretta waiver,
apparently after a conference earlier that morning with the court asking defendant
whether he had completed his form.6 The court’s minutes reflect that the hearing
commenced at 8:30 a.m., and that the trial court advised defendant “that self-
representation is almost always an unwise choice, and will not work to his advantage;
further, that he will not be helped or treated with special leniency by the court or the
prosecutor, and that he will be held to the same standards of conduct as an attorney.
Further, if he wishes to represent himself, he will not be able to claim later that he made a
mistake, or that he received ineffective assistance of counsel.” The minutes also reflect
that the trial court found that defendant had voluntarily and intelligently chosen self-
representation, that he knowingly, intelligently, understandingly, and explicitly waived
his right to counsel, and that he was competent to represent himself.
       Later, in the reported part of the hearing, the trial court said to defendant: “Do you
understand, as I indicated to you Thursday, that I would permit you to represent yourself,
assuming you are ready to proceed to trial on today’s date. And I’m assuming you’re
ready to proceed now?” Defendant answered “Yes.” The trial court granted his request
to proceed in pro. per. once again and appointed standby counsel. Defendant’s jury trial
commenced the following day.
                                       DISCUSSION
       Defendant contends that the judgment must be reversed for two reasons: he was
inadequately advised of the dangers of self-representation; and his Faretta motion was
improperly denied March 18, not granted until just before trial, and was conditioned upon
no continuance, leaving him no time to prepare his defense.




6      As respondent observes, the record is incomplete, as there is no reporter’s
transcript for the proceedings of June 6 or 7, 2013. Nor does the record contain a
reporter’s transcript for the early morning proceedings of June 10. Defendant has not
claimed that the missing parts of the record are necessary for review.

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I. Adequate advisement
       The Sixth Amendment right to counsel implies a right of self-representation if the
defendant voluntarily and intelligently so elects. (Faretta, supra, 422 U.S. at pp. 820-
821.) “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.]” (Id. at p. 835.)
       We “review the entire record -- including proceedings after the purported
invocation of the right of self-representation -- and determine de novo whether the
defendant’s invocation was knowing and voluntary. [Citations.] Even when the trial
court has failed to conduct a full and complete inquiry regarding a defendant’s assertion
of the right of self-representation, [we] examine the entire record to determine whether
the invocation of the right of self-representation and waiver of the right to counsel was
knowing and voluntary. [Citations.]” (People v. Marshall (1997) 15 Cal.4th 1, 24
(Marshall).) “No particular form of words is required in admonishing a defendant who
seeks to waive counsel and elect self-representation; the test is whether the record as a
whole demonstrates that the defendant understood the disadvantages of self-
representation, including the risks and complexities of the particular case. [Citations.]”
(People v. Koontz (2002) 27 Cal.4th 1041, 1070.)
       Defendant provides a thorough summary of the recommended warnings a trial
court should give regarding the dangers of self-representation prior to finding that the
defendant’s waiver of the right to counsel was knowing and voluntary. He acknowledges
that most such recommended warnings are found in the written Faretta waiver that
defendant initialed and signed. He contends that because the trial court did not enter into
a “substantial dialogue” regarding the warnings, there is no way to tell whether defendant
understood them.
       We disagree. First, there is no merit to defendant’s claim that during the second
Faretta proceeding in June 2013, the trial court failed to orally explain the dangers of


                                             7
self-representation. As we have observed, there is no reporter’s transcript of the early
morning proceedings of June 10, 2013, and as respondent pointed out, there is no
reporter’s transcript for the proceedings of June 6, although the minutes reflect that
defendant’s Faretta request was discussed on both occasions and that standard
admonishments were given.
       “It is axiomatic that it is the burden of the appellant to provide an adequate record
to permit review of a claimed error, and failure to do so may be deemed a waiver of the
issue on appeal. [Citations.]” (People v. Akins (2005) 128 Cal.App.4th 1376, 1385.)
Moreover, we presume “that official duty has been regularly performed.” (Evid. Code,
§ 664.) And error will not be presumed from a silent record. (Denham v. Superior Court
(1970) 2 Cal.3d 557, 564.) Thus, we reject defendant’s claim that there was no dialogue
from which the court might discern defendant’s understanding.
       Second, warnings may be given in writing, and a failure to “query the defendant
orally about his responses on the [Faretta] form, . . . does not necessarily invalidate
defendant’s waiver, particularly when, as here, we have no indication that defendant
failed to understand what he was reading and signing.” (People v. Blair (2005) 36
Cal.4th 686, 709 (Blair), overruled on a different point in People v. Black (2014) 58
Cal.4th 912, 919.)
       Indications that defendant fully understood the dangers of self-representation may
include the defendant’s prior self-representation, a demonstrated ability to read and write
in pro se filings, and the judge’s observation that defendant appeared to be of normal
intelligence. (Blair, supra, 36 Cal.4th at pp. 703-704, 709.) Here, the judge who granted
defendant pro. per. status in October 2012 observed that defendant had answered the
questions on the form properly and had given the court no reason to believe that he did
not “have enough thinking to do it.” Further, defendant stated on the form that he had
graduated from high school, had completed one year of college, and had studied law on
his own for 10 years. Defendant filed a lengthy petition for writ of habeas corpus and a
motion to strike priors, and after the trial court denied his oral motion to represent
himself, he served his counsel with a civil lawsuit that forced him to declare a conflict.


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Defendant wrote on the Faretta form that he had represented himself in two prior matters
in 1992 and 2003, and the record reflects that he represented himself in this case for two
months before requesting counsel, apparently due to the difficulties of self-representation.
       Finally, the trial court appointed standby counsel. More thorough advisements
regarding the dangers of self-representation are unnecessary when standby counsel has
been appointed for a defendant with prior self-representation experience. (See People v.
Elliott (2012) 53 Cal.4th 535, 592.) We conclude from a review of the whole record that
defendant was adequately advised of the dangers of self-representation, that he
understood them, and thus that his waiver was knowingly and intelligently made.
II. Denial of the March 18 motion
        Defendant contends that he was given insufficient time to mount an adequate
defense because the trial court granted his Faretta request in June instead of March and
then did not continue the trial. Defendant contends that his March request was timely and
that the trial court did not find otherwise. Defendant suggests that the sole basis for the
trial court’s ruling was that defendant had vacillated between wanting representation by
counsel and self-representation, and that vacillating cannot justify denial of a timely
Faretta request, because “[a] trial court must grant a defendant’s request for self-
representation made within a ‘reasonable time’ before trial.” Defendant has overstated
the trial court’s obligation. In fact, the right of self-representation is absolute only if
defendant’s request was asserted a reasonable time before trial, and it was unequivocal,
knowingly and voluntarily made. (People v. Doolin (2009) 45 Cal.4th 390, 453.) Thus, a
trial court may properly deny an equivocal request whether timely or untimely. (Ibid.)
       Whether a request was unequivocal must be determined from a review of the
entire record. (Marshall, supra, 15 Cal.4th at pp. 23-24.) “Because the court should
draw every reasonable inference against waiver of the right to counsel, the defendant’s
conduct or words reflecting ambivalence about self-representation may support the
court’s decision to deny the defendant’s motion. A motion for self-representation made
in passing anger or frustration, an ambivalent motion, or one made for the purpose of
delay or to frustrate the orderly administration of justice may be denied.” (Id. at p. 23.)


                                               9
       The trial court’s ruling was not based solely upon defendant’s prior vacillation, as
defendant suggests. As the court noted, defendant asserted his Faretta rights at his felony
arraignment, represented himself until the day first set for trial, when he requested
counsel. Defendant made his second Faretta request only after the court denied his
Marsden motion. A Faretta request is properly denied when “it appears defendant
attempted to subvert the orderly administration of justice by ‘juggling his Faretta rights
with his right to counsel interspersed with Marsden motions” [citation], along with
possible efforts to mislead the court . . . .” (Marshall, supra, 15 Cal.4th at p. at p. 26.)
An invocation of the right of self-representation is not unequivocal when made for the
purpose of delay rather than in a sincere effort to secure self-representation. (People v.
Danks (2004) 32 Cal.4th 269, 295; Marshall, supra, 15 Cal.4th at pp. 21-22.)
       We agree with respondent that considering all the circumstances, the record
demonstrates that defendant’s second assertion of his Faretta rights was “a vehicle for
manipulation and abuse.” (Marshall, supra, 15 Cal.4th at p. at p. 22.) The events of
April 9, 2013, the next date set for trial, demonstrate the insincerity of the request made
in March. Defendant’s claim that he did not know that trial was scheduled to begin that
day was not credible in light of the summons and complaint he served on his attorney,
forcing his attorney to declare a conflict of interest. Defendant’s comments to the court
reveal an apparent ploy to delay trial. Apparently prepared to allow defendant to
represent himself at that time, the trial court asked whether defendant wanted to represent
himself. Defendant replied, “I didn’t say that,” and told the court, “I have a right to a
conflict-free counsel.” When the court suggested that trial might go forward that day,
defendant said, “I don’t see how you’re going to start a trial with an attorney that I have a
lawsuit against.” Defendant waived his speedy trial rights so that trial could be continued
for the appointment of new counsel. One month later, however, after new counsel was
appointed and was ready for trial, defendant again asked to represent himself. As the
circumstances both before and after March 18 demonstrate that defendant’s effort to
secure self-representation was neither unequivocal nor sincere, there was no error in
denying the Faretta request.


                                              10
       We also find no merit to defendant’s contention that he was denied a fair trial
when the trial court conditioned granting his Faretta request in June on his agreement to
go to trial immediately. There is no record of the oral proceedings of June 6, 2013, when
defendant made his final Faretta motion and agreed that there would be no continuance;
however, defendant agrees that the trial court imposed the condition because the Faretta
request was untimely. Defendant argues that the request was untimely only because it
had previously been improperly denied, and thus the condition imposed by the trial court
was error.
       “It is true that if a court grants a defendant’s untimely Faretta request, it must also
grant a reasonable continuance, if necessary, so that defendant may prepare for trial.
[Citations.] However, if the court determines the defendant’s request is merely a tactic
designed to delay the trial, the court has the discretion to deny the continuance and
require the defendant to proceed to trial as scheduled either with his counsel or in propria
persona. [Citations.]” (People v. Douglas (1995) 36 Cal.App.4th 1681, 1689; accord,
People v. Valdez (2004) 32 Cal.4th 73, 102.) We have already determined that
defendant’s March request was properly denied as insincere and a probable attempt to
delay or otherwise manipulate the proceedings. Defendant has thus established no abuse
of discretion in conditioning self-representation on an immediate trial.
       Nor does it appear that defendant was prejudiced under any standard. As we have
not found an ineffective Faretta waiver and the trial court did not deny defendant’s last
Faretta motion, we need not reach defendant’s contention that the judgment is reversible
per se. (See generally, People v. Burgener (2009) 46 Cal.4th 231, 243-245.) Defendant
suggests that any harmless error analysis should be made according to the test of
Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), under which respondent must
demonstrate that constitutional error was harmless beyond a reasonable doubt. Defendant
argues that respondent cannot establish that the error was harmless beyond a reasonable
doubt, “given that no defense was presented because none could be mustered within two
days by an incarcerated pro per defendant, particularly in a case that would have required
the appointment of defense experts.”


                                             11
       Defendant’s claim of having two days to prepare is disingenuous: fully five
months before trial, after proceeding in pro. per. for two months, defendant represented to
the court in December 2012 that he was ready for trial. In addition, defendant never
expressed the need for experts until his oral motion for new trial on the day of sentencing,
August 1, 2013. Moreover, defendant had no defense to prepare. His opening statement
and the habeas corpus petition filed in March 2013 show that his chosen defense was that
the sex-offender registration law changed in 2007 and that enforcement of the new law
constituted a breach of his 1992 plea agreement. A similar contention was before the
California Supreme Court at the time of defendant’s trial and had been rejected by the
time of defendant’s motion for new trial. (See Doe v. Harris (2013) 57 Cal.4th 64.)
Thus, additional time to prepare such a defense would have been of no assistance to
defendant. Further, in the March 2013 Marsden hearing, former defense counsel told the
court that he had researched the defenses suggested by defendant and had found none of
them applicable or relevant.
       Finally, defendant does not suggest what he would have done differently at trial
had he more time. Under such circumstances, even if defendant had shown an abuse of
discretion and even if we agreed that the Chapman standard was applicable, we would
find any error harmless beyond a reasonable doubt.




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



                                             ____________________________, J.
                                             CHAVEZ

We concur:



__________________________, P. J.
BOREN



__________________________, J.*
FERNS




________________________________________________________________________
* 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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