Filed 9/11/14 P. v. Kirk CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A138871
v.
LYNWOOD ALLAN KIRK,                                                  (San Mateo County
                                                                     Super. Ct. No. SC065808A)
         Defendant and Appellant.

                                                   INTRODUCTION
         Lynwood Allan Kirk appeals his conviction, following a no contest plea, of
kidnapping (Pen. Code, § 207, subd. (a))1 and infliction of corporeal injury on a
cohabitant (§ 273.5, subd. (a)). He maintains the trial court erred by not thoroughly
inquiring about and subsequently denying his Faretta2 motion, failing to conduct a
thorough Marsden3 motion, and denying his motion for continuance.4 We conclude none
of these claims have merit, and affirm the judgment.



         1
         All further statutory references are to the Penal Code.
         2
         Faretta v. California (1975) 422 U.S. 808 (Faretta).
       3
         People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
       4
         Defendant also maintained in his opening brief he was entitled to additional
custody credits. In his reply brief, he acknowledged “[h]aving obtained the relief sought
in the Opening Brief” after filing a section 1237.1 motion in the trial court, and therefore
“[withdrew] this claim” even though he “[was] not and has never been in agreement with
the credits.”


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                       PROCEDURAL AND FACTUAL BACKGROUND
       We set forth only those facts pertinent to the issues raised on appeal. The San
Mateo County District Attorney charged defendant with seven counts arising from
incidents in November 2007: kidnapping (§ 207, subd. (a)), infliction of corporal injury
on a cohabitant (§ 273.5, subd. (a)), false imprisonment (§ 236), two counts of violation
of a court order (§ 136.2), attempting to dissuade a witness (§ 136.1, subd. (b)(2)), and
resisting arrest (§ 148, subd. (a)(1)). The amended information alleged the kidnapping
and dissuading a witness counts were considered serious felonies (§ 1192.7, subd. (c)(20)
& (37)), and defendant had a prior conviction of infliction of corporal injury on a
cohabitant (§ 273.5, subd. (a)), a prior strike conviction (§§ 1170.12, subd. (c)(1), 667,
subd. (a)) and had served a prior prison term (§ 667.5, subd. (b).).
       At defendant’s request, the trial court continued his jury trial five times. Trial was
set for August 30, 2010, but defendant failed to appear and the trial court issued a bench
warrant. After defendant appeared, the trial court granted his sixth continuance, until
July 11, 2011.
       On the new trial date, defendant moved for a seventh continuance because he
wanted to make a Marsden motion. The trial court continued the trial until the afternoon
to hold a Marsden hearing. The court subsequently denied the motion and request for yet
a further continuance to hire a new attorney. Defendant failed to appear the next day for
trial, and the trial court issued another bench warrant.
       Eight months later, it was determined defendant was in custody at the San
Francisco county jail, and the trial court ordered him transferred to San Mateo, and set
trial for April 30, 2012. Defense counsel then declared a doubt as to defendant’s
competence under sections 1367 and 1368. About three months later, the trial court
found defendant competent, and reset trial for November 5, 2012.
       A few weeks before the new trial date, defendant moved for an eighth
continuance, again claiming he wanted to hire a new attorney. By this time, defendant
was being represented by his fourth attorney. On October 23, 2012, the trial court denied
the motion to continue the trial date, but set a Marsden hearing for the following day.


                                              2
       At the outset of the October 24 Marsden hearing, defendant made a Faretta
request. After the trial court explained the perils of self-representation to defendant,
defendant indicated he wanted to “go pro per and then set another pretrial conference for
say in March [2013].” The trial court explained defendant was “not going to have a
pretrial conference whether you represent yourself or not. There’s been a pretrial
conference. . . . You have a trial date coming up in a very short period of time, and it
appears to me that you’re simply trying to get a continuance that you couldn’t get
yesterday by suddenly going pro per.” Defendant did not disagree, but reiterated that he
“want[ed] to have a pretrial conference.” The trial court denied the Faretta motion.
       The trial court then addressed the Marsden motion. Defendant stated he felt his
current attorney was “not trying to get [him] a better deal.” Defense counsel stated he
met with the district attorney to try to negotiate a better deal, but the prosecution would
not modify its offer. The trial court denied the Marsden motion.
       On November 5, 2012, pursuant a negotiated disposition, defendant pleaded no
contest to kidnapping and infliction of corporal injury on a cohabitant on the conditions
his sentence would not exceed 13 years in prison and the trial court would consider his
Romero5 motion. He admitted the serious felony allegations regarding the kidnapping
count, the prior strike conviction, and the prior prison term allegations.
       At the April 16, 2013 sentencing hearing, defendant requested a continuance to
confer with different counsel about withdrawing his plea. The trial court stated “it
appears to me that based on the entirety of the record, that this is nothing more than
[defendant’s] attempt to further delay the proceedings” and denied the continuance. The
trial court also denied defendant’s Romero motion, denied probation, and sentenced
defendant to a total of 13 years in state prison.




       5
           People v. Superior Court (Romero) (1996) 13 Cal.4th 497.


                                               3
                                        DISCUSSION
Faretta motion
       Defendant claims the trial court erred by “failing to thoroughly inquire about and
grant” his request to represent himself. “ ‘In determining on appeal whether the
defendant invoked the right to self-representation, we examine the entire record de
novo.’ ” (People v. Stanley (2006) 39 Cal.4th 913, 932 (Stanley).)
       “Criminal defendants have the right both to be represented by counsel at all
critical stages of the prosecution and the right, based on the Sixth Amendment as
interpreted in Faretta . . . , to represent themselves.” (People v. Lewis and Oliver (2006)
39 Cal.4th 970, 1001.) This right of self-representation, however, is not absolute.
“ ‘ “ ‘[T]he right of self-representation is waived unless defendants articulately and
unmistakably demand to proceed pro se.’ ” . . . “[T]he court should draw every
reasonable inference against waiver of the right to counsel.” ’ ” (Stanley, supra,
39 Cal.4th at p. 932.)
       “ ‘A trial court must grant a defendant’s request for self-representation if three
conditions are met. First, the defendant must be mentally competent, and must make
[the] request knowingly and intelligently, having been apprised of the dangers of self-
representation.’ ” (People v. Stanley, supra, 39 Cal.4th at pp. 931–932.) The “trial court
must make the defendant ‘aware of the dangers and disadvantages of self-representation,
so that the record will establish that “[defendant] knows what he [or she] is doing and his
[or her] choice is made with eyes open.” ’ [Citation.]” (People v. Dent (2003) 30 Cal.4th
213, 217–218.)
       Second, the defendant’s request for self-representation must be unequivocal.
(People v. Stanley, supra, 39 Cal.4th 932.) The “right of self-representation is not a
license to abuse the dignity of the courtroom or disrupt the proceedings.” (People v.
Lewis and Oliver, supra, 39 Cal.4th at p. 1002.) “Equivocation of the right of self-
representation may occur where the defendant tries to manipulate the proceedings by
switching between requests for counsel and for self-representation, or where such actions
are the product of whim or frustration.” (Ibid.) “A motion for self-representation made


                                              4
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.” (People v.
Marshall (1997) 15 Cal.4th 1, 23.) “ ‘[T]he Faretta right is forfeited unless the defendant
“ ‘articulately and unmistakably’ ” demands to proceed in propria persona.’ [Citation.]”
(People v. Williams (2013) 58 Cal.4th 197, 254.) “ ‘The court may deny a request for
self-representation that . . . is intended to delay or disrupt the proceedings.’ ” (Id. at
p. 253.)
       Third, the defendant’s request for self-representation must be timely. (People v.
Stanley, supra, 39 Cal.4th 932.) The defendant should make a Faretta request “ ‘within a
reasonable time prior to the commencement of trial.’ [Citation.]” (People v. Burton
(1989) 48 Cal.3d 843, 852.) The trial court then considers the totality of the
circumstances in determining whether a pretrial Faretta request is timely. (People v.
Lynch (2010) 50 Cal.4th 693, 724, abrogated on another ground by People v. McKinnon
(2011) 52 Cal.4th 610, 636–645.) The trial court may also consider the following factors
in determining timeliness: “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.” (Id. at p. 726.) Ultimately, the
erroneous denial of a timely and unequivocal Faretta request is reversible per se.
(People v. Joseph (1983) 34 Cal.3d 936, 948.)
       Defendant’s claim of Faretta error founders on the requirement that his request be
unequivocal and not for purposes of delay. The trial court found the request was dilatory
and an attempt to manipulate the proceedings, stating: “In my humble opinion you are
seeking your pro per status to gain a continuance that you couldn’t get yesterday.” The
record reflected defendant’s history of seeking continuances and changing counsel. He
made his Faretta request 12 days before the trial date, after multiple continuances granted
over a four-and-a-half-year period. Additionally, defendant was being represented by his
fourth attorney by that time. In his Faretta request and Marsden motion, defendant was
seeking another five-month continuance and another pretrial conference. Given


                                               5
defendant’s history, the trial court could properly conclude defendant was attempting “to
manipulate the proceedings.” (People v. Lewis and Oliver, supra, 39 Cal.4th at
pp. 1001–1002.)
       Defendant also claims the trial court failed to “thoroughly inquire” about his
Faretta request and “merely cho[se] to lecture [him],” citing People v. Silfa (2001)
88 Cal.App.4th 1311. In Silfa, the trial court provided the defendant with a “multipage
questionnaire routinely given to defendants in Los Angeles County who wish to represent
themselves,” and questioned the defendant about his understanding of the rights he was
giving up. (Id. at pp. 1314–1321.) Yet, the Silfa holding did not require trial courts to
extensively question or provide multipage questionnaires to defendants seeking pro. per.
status. Instead, the court noted the “Superior Court form must be seen as no more than a
means by which the judge and the defendant seeking self-representation may have a
meaningful dialogue concerning the dangers and responsibilities of self-representation. It
is not . . . a test the defendant must pass in order to achieve self-representation.” (Id. at
p. 1322.) The court explained the defendant “ ‘ “should be made aware of the dangers
and disadvantages of self-representation,” ’ ” and noted “[t]he trial court advised him
several times he was making a mistake. That is all Faretta requires.” (Ibid.)
       Defendant fails to identify any requirement missing from the trial court’s inquiry.
In fact, the record shows a meaningful dialogue concerning the dangers and
responsibilities of self-representation. The trial court told defendant of the disadvantages
and dangers of self-representation in a complex case, particularly with selecting a jury
and obtaining a favorable resolution. The trial court did not err in the scope of its Faretta
inquiry of defendant.
Marsden Motion
       Defendant also claims the trial court abused its discretion by failing to conduct a
“thorough” Marsden hearing on October 24, 2012 and again at his April 16, 2013




                                               6
sentencing hearing.6 We review the trial court’s ruling on a Marsden motion for abuse of
discretion. (People v. Taylor (2010) 48 Cal.4th 574, 599.)
       A defendant has a right to request new court-appointed counsel when his or her
current attorney has provided ineffective assistance. (Marsden, supra, 2 Cal.3d at
pp. 120, 123.) When a defendant makes a Marsden motion, the court must give him or
her the opportunity to demonstrate an “irreconcilable conflict [such] that ineffective
representation is likely to result.” (People v. Smith (2003) 30 Cal.4th 581, 604.) Once
the defendant has had the opportunity to discuss the reasons for a new attorney, the trial
court has the discretion to deny it, “unless defendant has made a substantial showing that
failure to order substitution is likely to result in constitutionally inadequate
representation.” (People v. Crandell (1988) 46 Cal.3d 833, 859, abrogated on another
ground by People v. Crayton (2002) 28 Cal.4th 346, 364–365.)
       A defendant’s guilty plea, however, precludes him or her from raising a preplea
Marsden claim. (People v. Lovings (2004) 118 Cal.App.4th 1305, 1311 (Lovings).) In
Lovings, the defendant pleaded no contest to first degree murder, but later appealed the
trial court’s denial of his preplea Marsden motions. (Lovings, at p. 1307.) The court,
citing People v. Lobaugh (1987) 188 Cal.App.3d 780, concluded the defendant’s plea
foreclosed any challenges to his preplea Marsden motions absent assertions his plea was
“unintelligent or involuntary ” or “that he received inappropriate legal advice concerning
his plea.” (Lovings, at 1311.) Defendant acknowledges the holding in Lovings, but
maintains his preplea Marsden claim is “linked to the post-plea motion to withdraw his
plea.” Defendant thus contends he can still raise a claim regarding the thoroughness of
the preplea Marsden hearing. Defendant fails to cite any authority, however, in support
of this assertion. Furthermore, he never made a Marsden motion or sought to withdraw
his plea at the sentencing hearing. Instead, he moved for a continuance to explore “the
idea of a motion to withdraw the plea.” Defendant has thus waived any error in the
Marsden proceedings.
       6
        This was defendant’s second Marsden hearing. Defendant made a Marsden
motion regarding a different attorney in July 2011. The court denied the motion.


                                               7
          Assuming arguendo defendant could raise a preplea Marsden claim, the record
shows, in any event, the trial court provided sufficient opportunity to explain the basis for
his Marsden motion. The court asked defendant to explain why he wanted a new
attorney. It listened and responded to his complaints. It also asked if the underlying
reason for changing counsel was defendant’s dissatisfaction in failing to get a better
sentence. Defendant confirmed it was. In response, defense counsel indicated he tried to
get a better deal, but the district attorney would not offer one. In sum, the record shows
the trial court provided an opportunity to pause, reflect, and inquire about any
constitutionally inadequate representation.
Denial of continuance
          Defendant additionally claims the trial court abused its discretion by denying his
request for continuance, made at his sentencing hearing, so he could confer with different
counsel about withdrawing his plea. We review the denial of a motion for continuance
for abuse of discretion. (People v. Mungia (2008) 44 Cal.4th 1101, 1118.)
          A party moving for a continuance must show good cause. (§1050, subd. (e).)
When determining whether there is good cause, “the court shall consider the general
convenience and prior commitments of all witnesses,” but “convenience of the parties . . .
in and of itself” is not good cause. (§ 1050, subds. (e), (g)(1).)
          A trial court does not abuse its discretion when a case has been pending for an
extended period of time, the court has already granted numerous and lengthy
continuances at the defendant’s request, and the defendant has had the reasonable
opportunity to prepare the defense. (People v. Snow (2003) 30 Cal.4th 43, 73.) In Snow,
the defendant claimed the trial court’s denial of his continuances deprived him of
effective assistance of counsel. (Id. at p. 70.) But the trial court had granted many of the
defendant’s previous requests for continuances. (Id. at p. 73.) By that time, the case had
been pending in trial court for 26 months. (Ibid.) Furthermore, defense counsel, though
recently reappointed to represent the defendant, had two years to prepare the defense.
(Ibid.) The Snow court thus concluded the denial of the continuances were proper.
(Ibid.)


                                                8
       Here, defendant pleaded no contest five months before seeking a continuance at
his sentencing hearing. By the time of that hearing, the case had been pending for nearly
five years, and the trial court had granted seven of defendant’s nine previous continuance
requests. The trial court, in denying the motion, stated: “The defendant plead
November 5. He’s been pending sentence since then. It’s been continued from
November 5 to March 6 to today. Actually, to April 2 to today April 16. And the
defendant has been through various . . . motions to continue, various lawyers, requests to
go pro per, Marsden motions, and it appears to me that based on the entirety of the
record, that this is nothing more than Mr. Kirk’s attempt to further delay the proceedings.
And the defendant’s request to have a continuance to explore a motion to withdraw the
plea or for any other reason to replace his lawyer, whatever, is denied.” Based on this
record, there was no abuse of discretion in denying the continuance.

                                      DISPOSITION
The judgment is affirmed.




                                             9
                                 _________________________
                                 Banke, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Dondero, J.




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