P. v. Perez

Filed 5/10/07 P. v. Perez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
PEDRO CASTRO PEREZ,
Defendant and Appellant.
2d Crim. No. B182014
(Super. Ct. No. KA066479)
(Los Angeles County)
Pedro Castro Perez appeals convictions for evading an officer causing
injury (Veh. Code, § 2800.3), leaving the scene of an accident (Veh. Code, § 20001,
subd. (a)), and driving without a valid driver's license (Veh. Code, § 12500, subd. (a)).
The jury found a true allegation that he had a prior serious or violent felony conviction.
(Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) Perez's 15-year sentence
included a 5-year upper term for the evading an officer causing injury offense. Perez
contends the trial court violated his constitutional right to self-representation, and erred in
imposing an upper term sentence based on aggravating facts that were not found true by
the jury. We affirm the judgment, but remand for resentencing.
FACTS AND PROCEDURAL HISTORY
Perez was driving his Jeep Cherokee recklessly and at an unsafe speed. He
was forced to stop behind a truck, but drove onto the sidewalk to evade a pursuing police

-- 1 of 7 --

2
car. Perez ran a red light, side-swiped a car, and collided with a pickup truck. A
passenger in the car hit by Perez was seriously injured and had to be hospitalized for
several weeks. Perez was apprehended as he ran from his vehicle. He did not have a
valid driver's license.
The public defender was appointed to represent Perez but was later replaced
by private counsel. In August 2004, the trial court declared a doubt regarding Perez's
mental competence and suspended criminal proceedings. In October 2004, the court
found Perez competent and criminal proceedings resumed.
On November 2, 2004, after one day of jury trial, the trial court questioned
the representation provided by defense counsel and stated that it would grant a mistrial if
requested. After independent counsel was appointed for him, Perez requested a mistrial
and it was granted. The public defender was reappointed to represent Perez.
Later in November, Perez made a Marsden motion for new appointed
counsel and the motion was denied. (People v. Marsden (1970) 2 Cal.3d 118.) Perez
made a second Marsden motion on February 25, 2005, the first day of trial. The trial
court's denial of the motion was followed immediately by a Faretta motion for self-
representation. (Faretta v. California (1975) 422 U.S. 806.) Perez appeals the denial of
his Faretta motion.
DISCUSSION
No Error in Denial of Faretta Motion
Perez contends that the trial court's denial of his Faretta motion violated his
constitutional right to represent himself. We disagree.
A criminal defendant has a constitutional right of self- representation.
(Faretta v. California, supra, 422 U.S. at pp. 818-836.) To invoke that right, a defendant
must unequivocally assert it within a reasonable time prior to the commencement of trial.
(People v. Marshall (1996) 13 Cal.4th 799, 827; People v. Burton (1989) 48 Cal.3d 843,
852.) The trial court must permit self-representation as long as the defendant's motion is
timely, and is intelligently and knowingly made. (People v. Stanley (2006) 39 Cal.4th
913, 931-932; Faretta, at p. 835.)

-- 2 of 7 --

3
The trial court, however, has discretion to deny an untimely motion for self-
representation. (E.g., People v. Burton, supra, 48 Cal.3d at p. 852.) Although there is no
particular time at which a motion becomes untimely, a timely motion must be made a
reasonable time before trial. (Burton, at pp. 853-854; People v. Windham (1977) 19
Cal.3d 121, 127-128.) Courts have affirmed the denial of motions as untimely when
made within a few days of a scheduled trial date. (See People v. Rudd (1998) 63
Cal.App.4th 620, 625-626 [three days before trial]; People v. Hill (1983) 148 Cal.App.3d
744, 757 [five days before trial]; People v. Ruiz (1983) 142 Cal.App.3d 780, 790-791 [six
days before trial].)
Here, the trial court reasonably concluded that Perez's motion was not
timely. The motion was made on the day of trial, yet his two Marsden motions show
dissatisfaction with appointed counsel for several months. Perez had ample opportunity
to seek self-representation earlier, and offered no explanation for his delay. (See People
v. Scott (2001) 91 Cal.App.4th 1197, 1206.)
Perez cites a Ninth Circuit rule that generally Faretta motions are timely
when made before impanelment of the jury unless they are used as a tactic to secure
delay. (Moore v. Calderon (9th Cir. 1997) 108 F.3d 261, 264; see also Avila v. Roe (9th
Cir. 2002) 298 F.3d 750, 753.) But, the California Supreme Court concluded that, to the
extent the federal and state rules differ, "we find the federal rule too rigid in
circumscribing the discretion of the trial court and adhere to the California rule.” (People
v. Burton, supra, 48 Cal.3d at p. 854 & fn. 2.) We are obligated to follow this precedent.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Moreover, a more
recent Ninth Circuit decision upheld the California standard, concluding that California's
"reasonable amount of time before trial" standard for timeliness is consistent with
Faretta. (Marshall v. Taylor (9th Cir. 2005) 395 F.3d 1058, 1060-1061, cert. den. (2005)
126 S.Ct. 139.) In any event, the record supports the trial court's implied finding that the
self-representation request by Perez was a tactic designed to cause delay which would
render his motion untimely under the cited Ninth Circuit cases.

-- 3 of 7 --

4
The record also supports a finding that Perez's motion was equivocal, and
made in reaction to the denial of his Marsden motion. "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." (People v. Marshall, supra, 15 Cal.4th at p.
23.) A motion is equivocal if it arises from a defendant's annoyance or frustration with
counsel or with his motion for substitution of counsel. (Id., at pp. 21-22; People v. Scott,
supra, 91 Cal.App.4th at p. 1205.)
Here, Perez made a Marsden motion to obtain new appointed counsel
arguing, in essence, that he and counsel did not understand each other, counsel was not
helping him, and counsel failed to provide him with "papers" from the case. Immediately
after the trial court denied his motion, Perez stated to the court: "I want to tell you
something. . . . If you cannot change my attorney, I will go—I will represent myself."
But, Perez was unprepared to defend himself, and the record suggests that he had not
considered the possibility of self-representation and was unable to assess his own position
in the case.
Perez also contends that, even if his Faretta motion was untimely, the trial
court abused its discretion in denying it. Perez argues the trial court summarily denied
the motion without questioning Perez about, or considering, the relevant criteria. We
disagree, and conclude that there was no abuse of discretion.
In exercising its discretion to deny an untimely Faretta motion, the trial
court must consider the quality of counsel's representation, the defendant's prior
proclivity to substitute counsel, the reason for the request, the length and stage of the
proceedings, and the disruption or delay that might follow the granting of such a motion.
(People v. Windham, supra, 19 Cal.3d at p. 128.) Such consideration may be explicit or
implicit and it is not necessary for the court to make express inquiries and findings
regarding the factors. (People v. Marshall, supra, 13 Cal.4th at p. 828.) A reviewing
court must give considerable weight to the trial court's exercise of discretion, and the

-- 4 of 7 --

5
defendant has the burden of justifying the delay. (People v. Valdez (2004) 32 Cal.4th 73,
102; see also People v. Howze (2001) 85 Cal.App.4th 1380, 1397-1398.)
Here the trial court's ruling followed a lengthy hearing during which the
trial court considered the Windham factors as well as the factors applicable to a Marsden
motion. The court favorably evaluated the representation being provided by appointed
counsel, considered Perez's proclivity to change counsel through Marsden motions, the
absence of any reason for the request, the absence of any reason for delaying the request
until the day of trial, and the delay and disruption of the proceedings if the motion were
granted. Clearly, Perez was mentally unstable and unprepared to direct his own defense.
In any event, any error in the trial court's failure to weigh the Windham
factors on the record is harmless. Any error in the exercise of the trial court's discretion
is reviewed under the harmless error test of People v. Watson (1956) 46 Cal.2d 818, 836.
(People v. Rogers (1995) 37 Cal.App.4th 1053, 1058.) The error is harmless if it is not
reasonably probable that the defendant would have obtained a more favorable result had
he represented himself. Here, the record contains overwhelming evidence of Perez's
guilt, evidence that was essentially unchallenged. There is no reasonable probability he
would have obtained a better result had he represented himself.
Remand Required for Resentencing
The trial court imposed an upper term sentence for the evading an officer
causing injury offense based on aggravating factors that were not determined by a jury.
Perez contends that Blakely v. Washington (2004) 542 U.S. 961, and Apprendi v. New
Jersey (2000) 530 U.S. 466, require that the jury determine beyond a reasonable doubt
such factual findings used by the trial court to impose an upper term of imprisonment.
Subsequent to the briefing of the case, the United States Supreme Court invalidated the
portion of California's Determinate Sentencing Law that permits a judge to impose an
upper term sentence based on aggravating sentencing factors that are not determined by a
jury. (Cunningham v. California (2007) ___ U.S. ___ [2007 WL 135687], overruling
People v. Black (2005) 35 Cal.4th 1238 in part.) Accordingly, we will vacate the
sentence and remand for resentencing consistent with the Cunningham case.

-- 5 of 7 --

6
DISPOSITION
The sentence of five years for evading an officer causing injury is vacated
and the matter remanded for resentencing on that offense consistent with Cunningham v.
California, supra, 2007 WL 135687. The trial court is directed to prepare an amended
abstract of judgment in accordance with this disposition and deliver it to the Department
of Corrections. In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
COFFEE, J.

-- 6 of 7 --

7
Bruce F. Marrs, Judge
Superior Court County of Los Angeles
______________________________
California Appellate Project, Jonathan B. Steiner, Executive Director, and
Ronnie Duberstein, Staff Attorney, for Defendant and Appellant.
Bill Lockyer, Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves,
Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior
Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General,
Viet H. Nguyen, Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and
Respondent.

-- 7 of 7 --