People v. Rudd

• Decision Date: 28 April 1998
• Docket Number: No. B113623,B113623
• Citation: 73 Cal.Rptr.2d 807,63 Cal.App.4th 620
• Parties: , 98 Cal. Daily Op. Serv. 3156, 98 Daily Journal D.A.R. 4388 The PEOPLE, Plaintiff and Respondent, v. Edgar Grant RUDD, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 807

73 Cal.Rptr.2d 807

63 Cal.App.4th 620, 98 Cal. Daily Op. Serv. 3156,

98 Daily Journal D.A.R. 4388

The PEOPLE, Plaintiff and Respondent, v. Edgar Grant RUDD, Defendant and Appellant.

No. B113623.

Court of Appeal, Second District, Division 5, California.

April 28, 1998.

Certified for Partial Publication. ^*

Review Denied Aug. 12, 1998.

Francia M. Welker, under appointment by the Court of Appeal, Oakland, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and Shawn A. McGahey, Deputy Attorney General, for Plaintiff and Respondent.

TURNER, Presiding Justice.

I. INTRODUCTION

On a Friday, a defendant with a 19-year record of felony and misdemeanor convictions requests to proceed in propria persona on the fifty-eighth day of the 60 days during which the case must be tried. The experienced judge is concerned that the defendant is using his right to proceed in pro se as a means to delay the trial. The defendant agrees that he will be ready for trial on the last day the case can be tried, which is the following Monday. On Friday, the judge then allows the defendant to proceed in pro se with the express understanding that the trial will proceed on the following Monday. The defendant promises to be ready to proceed on the following Monday. On the following Monday morning, the defendant announces he is not ready for trial. On the Monday morning, the defendant brings with him none of the sheriff's reports and other legal materials he was provided on Friday that he will need for trial. On the Monday morning, the trial court vacates the defendant's self-representation status and reappoints the deputy public defender who was ready to try the case on the preceding Friday. The defendant says nothing when his self-representation status is vacated and the deputy public defender is reappointed. The deputy public defender says nothing either. No objections to the Monday morning order are interposed in the trial court. The first objection to the Monday morning order revoking the defendant's pro se status appears in an opening brief filed over seven months after the defendant is sentenced. The defendant argues that the foregoing scenario violated his rights under the United States Constitution. Do we agree? No. We do not believe the United States Constitution requires the courts of this nation to reverse criminal convictions under these circumstances.

II. PROCEDURAL BACKGROUND

Defendant, Edgar Grant Rudd, appeals from his conviction for possession of a controlled substance. (Health & Saf.Code, § 11350, subd. (a).) He was also found to have served five prior prison terms (PEN.CODE, § 667.5¹, subd. (b)) and to have been convicted of two prior serious felonies. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) In the published portion of the opinion, we conclude: because without explanation defendant delayed the assertion of his right to proceed in propria persona, he had no unqualified right to represent himself; he has forfeited on appeal the right to argue the trial court improperly revoked his right to represent himself because no objection was interposed to the order terminating his pro se status; because he acquiesced in the appointment of counsel, no Sixth Amendment violation occurred; and because defendant was unable to abide by rules of procedure and courtroom protocol, there has been no violation of his Sixth Amendment rights.

Defendant was arrested on February 19, 1997. The preliminary examination was held on March 6, 1997. Defendant was arraigned in superior court on March 20, 1997. Trial was set to begin on May 16, 1997, a Friday. On that day, defendant made a request pursuant to People v. Marsden (1970) 2 Cal.3d 118, 123, 84 Cal.Rptr. 156, 465 P.2d 44, to substitute counsel, indicating that if his motion was denied, he would like to represent himself. Thereafter, his Marsden motion was denied. He was granted propria persona status on the condition that he be ready for trial. Defendant agreed to that condition--he would be ready to proceed to trial on the following Monday, May 19, 1997. The trial court repeatedly reminded defendant that trial would go forward on the following Monday. The court warned defendant that he probably would not be sent to the "pro per" module at the county jail: "The fact is, this is just so close to trial, Mr. Rudd, I doubt seriously if it will happen." The court went on: "You have to understand that--I mean, the point here is, I don't have to let you represent yourself at this point. It's too close to trial. The only reason I'll do it is if you insist on doing it and if you understand that you are starting trial on Monday. [p] You may not get to the pro per tank--today is Friday? You may not get to pro per tank before Monday. You may not have any access to any materials other than what we gave you here, which is the discovery. [p] Knowing that, do you still believe you'll be ready for trial on Monday?" Defendant answered affirmatively. The trial court then concluded: "Because that's the only way--that's the only way you get to do this, Mr. Rudd. You've got to understand that. [p] Do you understand all that?" Defendant again responded affirmatively. Defendant assured the court that he would be prepared to go forward with the trial on Monday, May 19, 1997. Defendant did not request a continuance.

On Monday, May 19, 1997, at 9:24 a.m. the cause was called for trial. The following transpired: "THE COURT: MA013546, Edgar Rudd, present in pro per in custody. Mr. Rudd, are you ready for trial? [p] THE DEFENDANT: No, not right now. [p] THE COURT: His pro per status is revoked. [p] Mr. Bruckner is appointed to represent Mr. Rudd. Trial commences today. You are no longer pro per, Mr. Rudd. I told you on Friday that you had to be ready to go to trial. That is the only way pro per status would be granted. It won't be continued." Neither defendant nor his counsel objected to the order revoking the pro se status.

III. DISCUSSION

A. Timeliness Issues

Defendant argues that the trial court improperly revoked his right to represent himself at trial. In this regard, defendant argues he had an unqualified right to represent himself. A defendant has a federal constitutional right of self-representation. (Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562; People v. Marshall (1996) 13 Cal.4th 799, 827, 55 Cal.Rptr.2d 347, 919 P.2d 1280; People v. Clark (1992) 3 Cal.4th 41, 98, 10 Cal.Rptr.2d 554, 833 P.2d 561; People v. Burton (1989) 48 Cal.3d 843, 852, 258 Cal.Rptr. 184, 771 P.2d 1270.) The parties dispute whether the assertion of the right to proceed without counsel was timely. We conclude, given the facts in the present case, defendant's opportunity to proceed pro se was not an unqualified right because of his delay in seeking to represent himself. The California Supreme Court has held, "[I]n order to invoke the right he must assert it within a reasonable time before the commencement of trial." (People v. Marshall, supra, 13 Cal.4th at p. 827, 55 Cal.Rptr.2d 347, 919 P.2d 1280; People v. Clark, supra, 3 Cal.4th at p. 98, 10 Cal.Rptr.2d 554, 833 P.2d 561; People v Burton, supra, 48 Cal.3d at p. 852, 258 Cal.Rptr. 184, 771 P.2d 1270.) Thereafter, under California's interpretation of Faretta, the trial court must exercise its sound discretion in granting or denying the motion based upon 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 that might reasonably be expected to follow the granting of such a motion." (People v. Windham (1977) 19 Cal.3d 121, 128, 137 Cal.Rptr. 8, 560 P.2d 1187.) When California Supreme Court authority has been applied, motions for self-representation made on the day preceding or on the trial date have been considered untimely. (People v. Burton, supra, 48 Cal.3d at p. 852, 258 Cal.Rptr. 184, 771 P.2d 1270; People v. Moore (1988) 47 Cal.3d 63, 79-81, 252 Cal.Rptr. 494, 762 P.2d 1218; People v. Douglas (1995) 36 Cal.App.4th 1681, 1689, 43 Cal.Rptr.2d 129.) Moreover, if it appears that the defendant's request for self-representation is merely a tactic designed to cause delay, the trial court has the discretion to deny the request to proceed pro se. (Jackson v. Ylst (9th Cir.1990) 921 F.2d 882, 888; U.S. v. Flewitt (9th Cir.1989) 874 F.2d 669, 674-675.) In the present case, the trial judge acted within the allowable scope of judicial discretion in permitting defendant to proceed pro se under California's analysis of the Faretta timeliness rule. Here, as in People v. Clark, supra, 3 Cal.4th at page 110, 10 Cal.Rptr.2d 554, 833 P.2d 561, the Faretta motion was granted only after defendant expressly represented he was able to proceed without a continuance. Defendant prepared a petition to proceed in propria persona, which included the acknowledgment: "I understand that the Judge may terminate my right to self-representation in the event that I engage in serious misconduct or obstruct the conduct and progress of the trial." Given the lateness of his request which was within days prior to trial, the trial court could have denied defendant's request to represent himself as untimely. (Moore v. Calderon (9th Cir.1997) 108 F.3d 261, 264-265; People v. Burton, supra, 48 Cal.3d at p. 852, 258 Cal.Rptr. 184, 771 P.2d 1270; People v. Moore, supra, 47 Cal.3d at pp. 79-81, 252 Cal.Rptr. 494, 762 P.2d 1218; People v. Douglas, supra, 36 Cal.App.4th at p. 1689, 43 Cal.Rptr.2d 129.) There was no unqualified right to self-representation under the California interpretation of Faretta.

Complicating the matter for California trial judges, though, is that when this state's criminal judgments are subject to...