People v. Johnson CA2/7 ( 2014 )


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  • Filed 9/8/14 P. v. Johnson CA2/7
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SEVEN
    THE PEOPLE,                                                          B245460
    Plaintiff and Respondent,                                   (Los Angeles County
    Super. Ct. No. MA054704)
    v.
    JEFFERY L. JOHNSON,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los Angeles County,
    Kathleen Blanchard, Judge. Affirmed.
    Robert Bryzman, 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, Senior Assistant Attorney General, Linda C.
    Johnson and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
    ___________________________________
    Jeffery L. Johnson appeals from the judgment on his conviction and sentence of
    seven counts of second degree robbery in violation of Penal Code section 211 and two
    counts of being a felon in possession of a firearm in violation of Penal Code section
    12021, subdivision (a)(1). On appeal, Johnson contends that: (1) the trial court abused its
    discretion in failing to conduct a Marsden hearing (People v. Marsden (1970) 
    2 Cal.3d 118
     (hereafter Marsden)), and (2) the trial court erred in denying Johnson’s Faretta
    request (Faretta v. California (1975) 
    422 U.S. 806
    , 
    95 S.Ct. 2525
    , 
    45 L.Ed.2d 562
    (hereafter Faretta) as untimely. As we shall explain, the court did not abuse its discretion
    in failing to conduct a Marsden hearing because the record does not establish that
    Johnson clearly indicated he wished to replace counsel. Moreover, the court did not err
    in denying Johnson’s Faretta request as untimely because it was within the trial court’s
    discretion to deny a Faretta request made on the eve of trial. Accordingly, we affirm the
    judgment.
    FACTUAL AND PROCEDURAL BACKGROUND
    I.     The Crimes
    Four incidents make up the seven counts of second degree robbery alleged in the
    information and amended information. During the first incident, Johnson entered a
    service station with a female accomplice on East Avenue K, and pulled out a gun while
    his accomplice took money from the cash register. Ten days later, Johnson and his
    female accomplice grabbed all the cash out of the register of a sex shop after demanding
    money from an employee. Nearly a week later, Johnson returned to the sex shop with his
    female accomplice, pulled out a gun, and retrieved more than $400 from the cash register.
    The fourth incident took place two nights later when Johnson and his female accomplice
    entered a smoke shop in Palmdale. Johnson held a gun to an employee and took money
    from the cash registers. The twosome then fled the scene in their car. During the
    robbery, witness Brittney Birkmeyer ran out of the store with several other customers.
    She got into a car with two friends and chased Johnson’s car for a mile or so until they
    were able to call the police and report the car’s license plate number.
    2
    The information further charged Johnson with two counts of being a felon in
    possession of a firearm. Following the final robbery, a Sheriff’s deputy pulled over
    Johnson. As Johnson exited his car, he knocked a handgun that was in his waistband
    onto the ground. Deputies then arrested Johnson. Later, when officers searched
    Johnson’s bedroom, they found a Tec 9 semi-automatic pistol, ammunition for the Tec 9,
    and a case for the handgun Johnson discarded when arrested.
    II.    Johnson’s In Court Behavior
    The court admonished Johnson for his disruptive behavior several times over the
    course of the proceedings. At a pretrial proceeding on May 30, 2012, the court
    admonished Johnson for raising his voice and interrupting the court. A few months later
    at another pretrial proceeding, the court ordered Johnson removed from the courtroom
    when he continued to interrupt and speak over the court after being admonished by the
    court for this behavior.
    On September 24, 2012, Johnson’s attorney, Robert Nadler, brought forward a
    handwritten motion that Johnson had prepared himself. As Nadler was conceding, “I
    haven’t actually completely reviewed it. But I understand it has something to with [sic]
    inaccuracies—” Johnson interrupted, “It’s a Marsden motion.” Nadler proceeded to
    inform the court that although he was not exactly sure what the motion contained, he
    understood it to have something to do with inaccuracies in the preliminary hearing
    transcript. Johnson then announced, “Transcripts been tampered with, my legal
    procedures been violated, my due process, my 6th Amendment right. It’s all here.” The
    court then admonished Johnson not to speak out in court or interrupt his attorney. Nadler
    requested permission from the court to review the motion that evening. The court then
    gave Nadler permission to review the motion and if he felt it was appropriate, to submit it
    before trial began.1
    1
    Nadler did not file the handwritten motion and the motion is not included in the
    record on appeal.
    3
    The court then asked Nadler if he was ready for trial, and as Nadler was replying
    that he could be ready, Johnson interrupted his attorney and said, “No, we’re not.” The
    court admonished Johnson to stop talking over the court and over his attorney. Johnson
    again interrupted and the following exchange ensued:
    “[Johnson]: He’s not my attorney.
    “[Trial Court]: Yes, he is your attorney.
    “[Johnson]: No, he’s not. I’m going pro-per. He’s not my attorney.”
    The court told Johnson that all motions must go through his attorney and, if the
    court were to consider a motion for Johnson to represent himself, Johnson needed to
    understand that he would be held to the same standard of conduct as an attorney. The
    court noted that it doubted Johnson could conduct himself properly because throughout
    this proceeding he had continued to interrupt the proceedings.
    After Nadler and the Deputy District Attorney announced they were ready for
    trial, the court asked Johnson if he would be ready to go to trial within the next three days
    if granted pro-per status. Johnson replied that he would not be ready. The court then
    denied Johnson’s request for self-representation as untimely, saying: “We are absolutely
    on the eve of trial. My supervising judge is here to assign this out as master calendar.
    This case is extremely old, as I said. The request is now made at 3:35 on the day the trial
    is going out and it is coupled with an absolute request to continue the case. And
    therefore, I find it untimely.”
    The case was promptly assigned to the same judge for trial, and jury selection
    began the following day. Opening statements began on the afternoon of September 26,
    2012, two days after Johnson asserted his Faretta motion and purported Marsden motion.
    One week later, a jury convicted Johnson on all seven counts of robbery and both counts
    of being a felon in possession of a firearm. This appeal followed.
    DISCUSSION
    I.     Marsden Motion
    Johnson contends the trial court abused its discretion by failing to conduct a
    Marsden hearing after Johnson attempted to submit his handwritten motion. He argues
    4
    that the court improperly delegated the determination of the merits of the motion to
    defense counsel. We conclude the court did not abuse its discretion in failing to conduct
    a Marsden hearing because Johnson did not make a sufficiently clear Marsden request.
    We review the failure to conduct a Marsden hearing for an abuse of the trial
    court’s discretion. (People v. Berryman (1993) 
    6 Cal.4th 1048
    , 1070; People v. Earp
    (1999) 
    20 Cal.4th 826
    , 876.) A Marsden hearing is an informal hearing where the court
    inquires into the defendant’s reasons for seeking substitute counsel and decides whether
    current counsel’s performance has been so deficient as to require replacement by a
    subsequent appointed attorney. (People v. Alfaro (2007) 
    41 Cal.4th 1277
    , 1320.) A trial
    court’s duty to permit a defendant to state his reasons for dissatisfaction with his attorney
    only arises when there is “at least some clear indication by defendant that he wants a
    substitute attorney” or in other words “when the defendant asserts directly or by
    implication that his counsel’s performance has been so inadequate as to deny him his
    constitutional right to effective counsel.” (People v. Lucky (1988) 
    45 Cal.3d 259
    , 281, fn.
    8; People v. Leonard (2000) 
    78 Cal.App.4th 776
    , 787 quoting People v. Molina (1977)
    
    74 Cal.App.3d 544
    , 549.)
    An attempted Marsden request is not sufficiently clear when the defendant uses
    the term “Marsden,” but the circumstances suggest the defendant is attempting to make
    an altogether different motion. For example, in People v. Carter (2010) 
    183 Cal.App.4th 522
    , 525-526, the defendant told the court, “I want a Marsden hearing.” However, after a
    bit more discussion, the defendant clarified that he was actually seeking to represent
    himself. (Ibid.) The court held that under these circumstances, the trial court was not
    required to hold a Marsden hearing. (Id. at p. 528.)
    Like the defendant in Carter, Johnson also used the term “Marsden” when the
    surrounding circumstances suggested he was not in fact making a Marsden motion.
    Although Johnson interrupted his attorney and claimed the document he was submitting
    was a Marsden motion, Johnson’s attorney, who had at least taken a quick look at the
    document, informed the court he understood the document to be a motion to correct
    inaccuracies in the preliminary hearing transcript. Moreover, Johnson had an opportunity
    5
    to correct his attorney and explain the contents of the handwritten motion his attorney
    was submitting. Instead of saying, “I want a different lawyer,” Johnson declared,
    “Transcripts been tampered with, my legal procedures been violated, my due process, my
    6th Amendment right. It’s all here.”
    In addition, the surrounding circumstances in this case further indicate that
    Johnson did not intend to make a Marsden motion but instead intended to make a Faretta
    motion for self-representation. Johnson made his Faretta motion for self-representation
    immediately after the discussion about Johnson’s purported Marsden motion. In this
    situation, where a defendant simply uses the term “Marsden” when the circumstances
    otherwise suggest that the motion was instead to correct inaccuracies in the preliminary
    hearing transcript or, alternatively, a motion for self-representation, the trial court was not
    required to hold a Marsden hearing.
    II.    Faretta Motion
    Johnson argues that the trial court erred in denying his Faretta motion as untimely,
    and further, that the court abused its discretion by denying the motion without
    considering the factors set forth in People v. Windham (1977) 
    19 Cal.3d 121
    . We
    conclude the trial court did not err in denying Johnson’s Faretta motion because it was
    within the court’s discretion to deny a Faretta motion made on the eve of trial.
    Moreover, the record contains sufficient evidence to support an inference that the trial
    court considered the Windham factors.
    The court in Faretta held that a criminal defendant has a constitutional right to
    self-representation if the decision to do so is made voluntarily and intelligently.
    However, the law requires that requests for self-representation be made within a
    reasonable time prior to the commencement of trial. (People v Windham, supra, 19
    Cal.3d at p. 128 & fn. 5.) Thus, requests for self-representation made after this time are
    subject to the discretion of the court. (Id. at p. 129 [The denial of an untimely Faretta
    motion is reviewed as an abuse of the trial court’s discretion].) The appellant’s due
    process right to counsel must then be weighed against the “orderly and speedy
    determination of criminal charges.” (People v. Strozier (1993) 
    20 Cal.App.4th 55
    , 61.)
    6
    “Motions made just prior to the start of trial are not timely.” (People v. Scott
    (2001) 
    91 Cal.App.4th 1197
    , 1205.) For example, People v. Scott held that the trial court
    did not err by denying the defendant’s Faretta motion as untimely when it was made four
    days prior to the start of trial. (Ibid.) (See also 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]; People v. Ruiz (1983) 
    142 Cal.App.3d 780
    , 791 [Faretta
    motion made six days before trial was untimely].)
    Johnson’s Faretta motion was similarly untimely when it was made two days prior
    to the start of trial and on the same day the supervising judge was going to assign the case
    to a courtroom. Moreover, Johnson’s motion was made at a time closer to the start of
    trial than the four, five, and six days that courts have determined are still an unreasonable
    time to move for self-representation prior to trial. Although in Scott, Hill, and Ruiz the
    cases had already been assigned to a courtroom, the record here indicates that the trial
    judge knew that trial would begin within a period of three days. (People v. Scott, supra,
    91 Cal.App.4th at p. 1204; People v. Hill, supra, 148 Cal.App.3d at pp. 750-752; People
    v. Ruiz, supra, 142 Cal.App.3d at pp. 783-784.) Accordingly, the trial court did not err
    by ruling the motion untimely.
    Furthermore, Johnson’s argument that the trial court abused its discretion by
    failing to consider the Windham factors is without merit. There is no requirement that the
    court must explicitly cite the Windham factors or state its reasons for denying an untimely
    request for self-representation. (People v. Windham, supra, 19 Cal.3d at p. 129, fn. 6;
    People v. Bradford (2010) 
    187 Cal.App.4th 1345
    , 1354.) All that is required is that the
    record reflect “sufficient reasons . . . to constitute an implicit consideration of these
    factors.” (People v. Scott, supra, 91 Cal.App.4th at p. 1206.) Under Windham, the trial
    court considers a number of factors when exercising its discretion to grant a request for
    self-representation that is not made within a reasonable time prior to trial, including: (1)
    the quality of counsel’s representation of defendant; (2) the defendant’s prior proclivity to
    substitute counsel; (3) the reasons for the request; (4) the length and stage of the
    7
    proceedings; and (5) the disruption or delay which might reasonably be expected to
    follow the granting of the motion. (People v. Windham, supra, 19 Cal.3d at p. 128.)
    Here, the record reflects sufficient evidence of each of these factors. First, it
    appears that Nadler’s representation of Johnson was of a satisfactory quality. Johnson’s
    only complaint about Nadler’s representation was that he failed to show up to a pretrial
    proceeding and sent another attorney in his place. Furthermore, there is no showing that
    Nadler was incompetent in any respect. In fact, Nadler brought Johnson’s handwritten
    motion to the court’s attention and filed his own Romero motion (People v. Romero
    (1996) 
    13 Cal.4th 497
    ) with the court. Thus, it does not appear that the quality of
    Nadler’s representation was a factor pointing towards the need for Nadler’s dismissal.
    Moreover, although Johnson had not shown a prior proclivity to substitute counsel, “this
    factor alone does not undermine the court’s conclusion that to grant the motion would
    unjustifiably delay trial or obstruct the orderly administration of justice.” (People v.
    Burton (1989) 
    48 Cal.3d 843
    , 854.)
    The court further explicitly considered that the trial was set to be immediately sent
    out for assignment to a courtroom; the case was very old; that it was doubtful Johnson
    could comport himself appropriately acting in propria persona as a result of his prior
    outbursts; and that Johnson would require a continuance if the Faretta motion was
    granted which would certainly have delayed the upcoming trial. Considering the facts in
    their totality, it was reasonable for the trial court to conclude that Johnson’s request to
    represent himself was made for the purpose of delaying trial when it was made for the
    first time just a few days before trial was to begin and when it was coupled with a request
    for a continuance. Accordingly, sufficient evidence exists to support an inference that the
    trial court considered the Windham factors and therefore did not abuse its discretion. In
    light of the foregoing, the court did not err in denying Johnson’s Faretta motion.
    8
    DISPOSITION
    The judgment is affirmed.
    WOODS, J.
    We concur:
    PERLUSS, P. J.
    SEGAL, J.*
    *
    Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
    article VI, section 6 of the California Constitution.
    9
    

Document Info

Docket Number: B245460

Filed Date: 9/8/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021