Filed 10/9/15 P. v. Rodriguez CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067011

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. Nos. SCD253339,
                                                                    SCD253592 & SCD255639)
JORGE ALBERTO RODRIGUEZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Lorna A.

Alksne, Judge. Affirmed.



         Marianne Harguindeguy, under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene Sevidal and Barry Carlton,

Deputy Attorneys General, for Plaintiff and Respondent.
       Jorge Alberto Rodriguez pled guilty, pursuant to three separate criminal

informations, to one count each of resisting executive officers (Pen. Code, § 69), evading

an officer with reckless driving (Veh. Code, § 2800.2), and unlawful taking or driving of

an automobile without consent of owner (Veh. Code, § 10851). He also admitted to a

strike prior in each case and, in the vehicle theft case, a prior vehicle theft conviction.

       On appeal, Rodriguez contends the court erroneously denied his motion to

represent himself. He also asserts the court committed prejudicial error by denying his

motion to later withdraw his guilty plea on the grounds that he does not write or

understand the English language. We affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       The police initially arrested Rodriguez on suspicion of stealing a Honda Accord.

Five days after being released on bail, Rodriguez engaged police in a high-speed chase

and was arrested for stealing a second car.

       At a readiness conference, Rodriguez moved to replace his appointed counsel

under People v. Marsden,1 contending the attorney had not sent him certain discovery

items in a timely manner. The court denied his request as meritless.

       A month later, Rodriguez was again arrested for stealing another Honda Accord.

Rodriguez resisted arrest by pushing against one of the officers and running away, but the

police soon recaptured him.




1      People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
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       On the first day of trial, before any potential jurors were called into the courtroom,

Rodriguez made a second Marsden request. He asserted he did not feel comfortable with

his appointed counsel and claimed his attorney had not spoken to him about his case.

After investigating the attorney's qualifications and preparedness, the court denied

Rodriguez's motion.

       Rodriguez immediately moved to represent himself under Faretta v. California.2

The court, after a brief inquiry into Rodriguez's knowledge of the law, concluded he did

not have the legal sophistication to make an intelligent waiver of counsel. Rodriguez

later submitted a completed Faretta waiver form, acknowledging all of the dangers and

disadvantages of self-representation. The next day, without any further ruling on the

Faretta motion, the court took Rodriguez's guilty plea.

       At the sentencing hearing, Rodriguez moved to withdraw his guilty plea on the

ground that he did not read or understand English. The court denied his motion and

sentenced him to six years in state prison.

                                       DISCUSSION

                                      I. Faretta Motion

       Under the Sixth Amendment of the United States Constitution, defendants have a

right to represent themselves in criminal trials. (Faretta, supra, 422 U.S. at p. 819.) A

trial court must grant a defendant's motion for self-representation if the request is

knowing, intelligent, unequivocal, and timely, that is, made within "a reasonable time



2      Faretta v. California (1974) 422 U.S. 806 (Faretta).
                                              3
prior to the commencement of trial." (People v. Lynch (2010) 50 Cal.4th 693, 721, 722.)

A knowing, intelligent, and unequivocal motion made after this period is addressed to the

sound discretion of the trial court. (People v. Clark (1992) 3 Cal.4th 41, 98 (Clark).) In

exercising its discretion, the court should consider factors such as "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, 129 (Windham).) To determine whether

the defendant properly invoked his right to self-representation, the reviewing court

examines the entire record de novo. (People v. Dent (2003) 30 Cal.4th 213, 218.)

          Rodriguez argues that his Faretta motion was knowing and intelligent,

unequivocal, and timely. The Attorney General concedes that the waiver was knowing

and intelligent, but claims it was made in an equivocal and untimely manner.

          A.     Unequivocal

          To protect the constitutional right to counsel, one of the trial court's tasks in ruling

on a Faretta motion is to determine whether the defendant truly wishes to represent

himself. (People v. Marshall (1997) 15 Cal.4th 1, 23 (Marshall).) The court should

evaluate whether the defendant has stated the motion clearly and whether the defendant's

statements or actions create any ambiguity as to his desire to represent himself. (Ibid.) A

motion for self-representation "made in passing anger or frustration" may be denied.

(Ibid.)



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       Rodriguez plainly and unambiguously stated his wish to represent himself after the

denial of his second Marsden motion. Although his request was possibly born of anger

or frustration, Rodriguez affirmed his desire to proceed in propria persona by filing a

Faretta waiver form with the court. This subsequent action was not taken in the heat of

the moment and suggests a firmness of conviction sometimes not present in other cases.

(Cf. Marshall, supra, 15 Cal.4th at p. 24 [Faretta motion was equivocal where

defendant's request was "rambling and laced with requests for time to think . . . ."].)

       B.     Timely

       Rodriguez brought his Faretta motion on the morning of the trial. As such, the

request was not made "within a reasonable time prior to the commencement of trial."

(See People v. Moore (1988) 47 Cal.3d 63, 79-81 [Faretta motion made on the day trial

was set to begin would have been well within the court's discretion to deny]; People v.

Scott (2001) 91 Cal.App.4th 1197, 1205 [Faretta motions made "just prior to the start of

trial" are untimely]; People v. Hill (1983) 148 Cal.App.3d 744, 757 [Faretta motion

made five days before trial was untimely and within trial court's discretion to deny].)

Under these circumstances, the trial court should have applied the factors set forth in

Windham to determine whether to deny the tardy motion. (Clark, supra, 3 Cal.4th at

p. 98; Windham, supra, 19 Cal.3d at pp. 128-129.) Though the record does not clearly

establish that the court considered each of the Windham factors, after reviewing the




                                              5
record and applying the Windham factors, we believe the trial court properly exercised its

discretion.3

       The court evaluated the first factor, the quality of counsel's representation of

defendant, during Rodriguez's July 28 Marsden hearing—a mere 10 minutes before

Rodriguez brought his Faretta motion. During this hearing, the court inquired into the

defense counsel's work experience and preparations made for Rodriguez's case. Based on

his testimony, the court concluded he was adequately representing Rodriguez.

       The second factor, the defendant's proclivity to substitute counsel, also weighed in

favor of denying the motion. Rodriguez originally moved for the substitution of

appointed counsel on March 21. The motion was denied, but the office of the public

defender assigned the case to a different attorney, effectively granting Rodriguez's

request. Though his wish was fulfilled, Rodriguez was still not satisfied. He ultimately

made another Marsden request for new counsel on July 28. This behavior evidenced a

pattern of discontent with appointed counsel and a proclivity to bring unnecessary

Marsden motions.

       During Rodriguez's second Marsden hearing, the court also considered the third

factor, the reasons for the request. Rodriguez's justifications for his second Marsden

request were contradictory, vague, and insubstantial. He complained that counsel had not

talked to him about his case, but, in the next breath, mentioned that he did not want to


3      In Clark, the court did not find an abuse of discretion where the trial court did not
explicitly consider the Windham factors. (Clark, supra, 3 Cal.4th at pp. 98-101.) As we
do here, the Clark court independently reviewed the record and weighed the Windham
factors. (Clark, at pp. 98-101.)
                                              6
discuss his case with counsel. He also broadly and baselessly asserted that he did not feel

comfortable with his appointed attorney. Due to the inadequacy of his justifications, the

trial court denied his motion. Because Rodriguez brought the Faretta motion in response

to his Marsden motion being denied, the superior court could have reasonably concluded

that the motivation for both requests was the same and that the reasons for his Faretta

request were unsound.

         The length and stage of the proceedings also weighed against granting the Faretta

motion. By the time Rodriguez brought his Faretta motion (on the first day of trial), the

proceedings had been ongoing for half a year. In addition, granting the motion would

have disrupted or further delayed the proceedings. Although it impermissibly focused on

his legal skills, the trial court's Faretta inquiry revealed that Rodriguez was not prepared

to represent himself. He did not understand any of the legal concepts or procedures

applicable to his case and admitted he would have to ask for some time to research the

relevant law. Thus, granting Rodriguez's motion would have caused an unnecessary

delay.

         In sum, the Windham factors militate against granting Rodriguez's untimely

request to represent himself in propria persona. We affirm the trial court's denial of

Rodriguez's Faretta motion.

                                  II. Right to an Interpreter

         Rodriguez asserts that the trial court committed a prejudicial error by denying his

request to withdraw his guilty plea on the grounds that he required an interpreter. The



                                               7
Attorney General argues that Rodriguez could, in fact, speak English and did not need an

interpreter and, therefore, the trial court properly exercised its discretion.

       Under the California Constitution, "[a] person unable to understand English who is

charged with a crime has a right to an interpreter throughout the proceedings." (Cal.

Const., art. I, § 14.) In assessing a trial court's decision to deny interpreter services, the

reviewing court makes two determinations. First, the court ascertains whether the lower

court erred. (People v. Rodriguez (1986) 42 Cal.3d 1005, 1013 (Rodriguez).) Second, if

an error exists, the court determines whether the error was harmless beyond a reasonable

doubt. (Ibid.)

       There is no clear standard by which the reviewing court determines whether the

trial court wrongly denied access to an interpreter. In Rodriguez, the California Supreme

Court used the California Standards of Judicial Administration as a guide. (Rodriguez,

supra, 42 Cal.3d at p. 1013.) The California Standards of Judicial Administration require

a court to provide an interpreter where, after examination, it concludes that the party

cannot understand and speak English well enough to participate fully in the proceedings

and assist counsel. (Cal. Stds. Jud. Admin., § 2.10.) The court must examine a party's

English language skills where a party or counsel requests that it do so or where it appears

to the court that a party does not understand English well enough to fully participate in

the proceedings. (Ibid.) Further, error is established only where the trial court " ' " 'has

exceeded the limits of legal discretion by making an arbitrary, capricious, or patently

absurd determination.' " ' " (See In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1456;

People v. Carreon (1984) 151 Cal.App.3d 559, 566-567.)

                                               8
       Rodriguez, who was born in the United States and had an 11th grade education,

did not ask for an interpreter at any point in the proceedings or at any of his numerous

court appearances. When he made the request to withdraw his guilty plea on this basis,

the court reacted incredulously, indicating its disbelief in Rodriguez's assertion he could

not understand English. The court's assessment of the credibility of Rodriguez's

contention was amply borne out by the record. In his first Marsden hearing, Rodriguez

competently described his problems with his counsel's legal tactics in English. He

demonstrated a comparable mastery of the English language during his second Marsden

hearing. His responses in his Faretta inquiry, though brief, were contextually appropriate

and displayed no discomfort with the English language. Finally, during his sentencing

hearing, Rodriguez explained, in English, his need for an interpreter.

       In sum, the trial court personally witnessed abundant evidence of Rodriguez's

competency with the English language. Accordingly, under the California Standards of

Judicial Administration, there was no need for an examination and, by extension, no need

for an interpreter. The trial court did not abuse its discretion by denying Rodriguez's

motion to withdraw his guilty pleas.




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                                     DISPOSITION

      The judgment is affirmed.


                                                                            PRAGER, J.*
WE CONCUR:



MCINTYRE, Acting P. J.



IRION, J.




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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