Clara County Super. Ct. No. CC954850 Paul Bernal Judge.
[Copyrighted Material Omitted]
A. Gibbs, under appointment by the Supreme Court, and E.
Michael Linscheild, under appointment by the Court of Appeal,
for Defendant and Appellant.
D. Harris, Attorney General, Dane R. Gillette and Gerald A.
Engler, Chief Assistant Attorneys General, Jeffrey M.
Laurence, Acting Assistant Attorney General, Eric D. Share,
Luke Fadem, Laurence K. Sullivan, René A.
Chacón and Bruce Ortega, Deputy Attorneys General, for
Plaintiff and Respondent.
unusual circumstances of this case present a cautionary tale
for defendants who choose to represent themselves, for in the
end, this defendant has no one but himself to blame for any
failure to present a defense.
here waged a long campaign of manipulation and delay of his
trial proceedings after being held to answer on a number of
felony and misdemeanor charges. He was represented by seven
different appointed counsel over the course of more than two
years, largely due to how difficult a client he was. Over the
same period, five different deputy district attorneys were
assigned to handle the case. The case was set for trial
numerous times, but defendant made repeated requests for
continuances. Indeed, defendant's case trailed for so
long that there was concern over the continuing availability
defendant's jury trial finally commenced, defendant
moved, during jury selection, to dismiss his latest public
defender and represent himself pursuant to Faretta
v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562,
95 S.Ct. 2525] (Faretta). In the course of providing
defendant with the appropriate Faretta warnings, the
court indicated it did not find defendant had stated an
appropriate ground for a one-day continuance in the event his
Faretta motion were to be granted. Defendant
continued to request self-representation and the trial court
eventually granted that request. Defendant appeared as his
own counsel for the completion of voir dire and the
examination of the prosecution's first witness.
failed, however, to appear in court for the next day of
trial. The court recessed for the entire day while efforts
were made to locate defendant, who was out of custody.
these efforts failed, the trial court found that defendant
had voluntarily absented himself from the trial proceedings.
Placed in a dilemma by defendant's disappearance, the
court chose not to unilaterally revoke defendant's status
as his own counsel, and accordingly, did not reappoint
counsel to represent defendant. It proceeded with the trial
in defendant's absence under
the authority of Penal Code section 1043, subdivision (b)(2),
which permits a trial court to continue with a noncapital
felony trial in a defendant's absence if the trial was
commenced in the defendant's presence and the defendant
is "voluntarily absent." The jury returned a mixed
verdict, convicting defendant of a subset of the charges.
Defendant subsequently appeared before the court and moved
for a new trial. The trial court denied his motion and
sentenced him to state prison.
appeal, the Court of Appeal concluded the trial court
committed structural error by proceeding with trial in the
absence of defendant and without the reappointment of defense
counsel. It also concluded reversal was required because, in
the appellate court's view, the trial court had abused
its discretion in denying defendant's motion for a
one-day continuance after it had granted defendant's
Faretta motion. We granted the People's petition
conclude that the trial court did not err, under the specific
circumstances present in this case, in proceeding with the
already-commenced trial after defendant had expressly waived
his constitutional right to counsel and subsequently
implicitly waived his constitutional right to be present. We
also conclude that the trial court did not abuse its
discretion in denying defendant's request for a one-day
continuance, which the record reflects was made prior to the
grant of his Faretta motion. Accordingly, we reverse
the judgment of the Court of Appeal.
FACTUAL AND PROCEDURAL BACKGROUND
September 3, 2009, defendant Zeferino Espinoza, Jr., got into
a verbal altercation with his roommate Augustine Gonzalez.
During the argument, defendant purportedly threatened
Gonzalez's life and told him not to call the police.
Gonzalez called the police. When the police arrived, they
obtained defendant's consent to search his room and upon
doing so, located two firearms, ammunition, morphine,
diazepam, and a small amount of marijuana. Defendant is a
was charged with a number of criminal violations relating to
the incident and items found. The public defender was
appointed to represent him. After being held to answer at a
preliminary hearing, an information was filed in December
2009. It charged defendant with two felony counts of being
a felon in possession of a firearm (Pen. Code, former §
12021, subd. (a)(1)); felony possession of a controlled
substance (morphine) (Health & Saf. Code, § 11350,
subd. (a)); felony making of criminal threats (Pen. Code,
§ 422); misdemeanor possession of 28.5 grams or less of
marijuana (Health & Saf. Code, § 11357, subd. (b));
felony possession of ammunition (Pen. Code, former §
12316, subd. (b)); felony dissuasion or attempted dissuasion
of a witness (Pen. Code, § 136.1, subd. (c)(1)); and
misdemeanor possession of a controlled substance without a
prescription (diazepam) (Health & Saf. Code, §
11375, subd. (b)(2)).
previously mentioned, seven different public defenders
represented defendant over the course of the next 27 months.
They made more than 60 court appearances on his behalf.
During that period of time, a motion pursuant to
Pitchess v. Superior Court (1974) 11 Cal.3d
531 [113 Cal.Rptr. 897, 522 P.2d 305] was tiled and denied, a
motion to suppress was filed and denied, and two motions
pursuant to People v. Marsden (1970) 2 Cal.3d 118
[84 Cal.Rptr. 156, 465 P.2d 44] (Marsden) were made
and denied. The case was finally assigned to a trial
department on April 16, 2012. and the trial court began to
consider pretrial motions.
April 17, 2012, defendant made another Marsden
motion to relieve his then current public defender, Mark
Camperi. Defendant requested that the court appoint a
conflict of interest attorney or allow him to represent
himself. (Faretta. supra, 422 U.S. 806.) The trial
court asked defendant how much time he would need if he were
to represent himself. Defendant indicated that he would need
three weeks and he might then file some further motions. The
trial court observed that the case had been trailing for an
extraordinarily long time, that defendant could have
requested to represent himself anytime in the previous few
years, and that the trial was set to begin. It noted that
defendant was not prepared to represent himself with a
minimal continuance and stated that it was not inclined to
continue the case for a further two to three weeks, which it
suspected would be more likely at least another month. The
court suggested that defendant was asserting his rights under
Faretta at that time because he was attempting to
manipulate the court. The trial court denied defendant's
defendant's Marsden motion defendant insisted
that he wanted "to fire" Camperi. He stated he was
"[n[ot going to trial with this attorney" because
Camperi had a conflict of interest, failed to communicate
with him, had no interest in the case, had threatened him,
and had failed to investigate the witnesses defendant
suggested. Camperi denied all of defendant's assertions.
Camperi described his investigative efforts and attempts to
discuss the case with defendant, who he claimed repeatedly
interrupted and talked over him. The trial court found no
basis to relieve Camperi and denied defendant's
next day, Camperi informed the trial court that defendant
desired a two-week continuance in order to represent himself
and that defendant was adamant that he wanted to fire
Camperi. The court stated that its prior orders would remain
in effect because the court did not believe it would be
possible for the case to be ready in two weeks if defendant
were to represent himself. The court observed that
"there's been five D.A.'s assigned to go to jury
trial. There have been seven public defenders. This case
keeps rattling around the courthouse, for lack of a better
word. And it's not for any lack of effort on the part of
the D.A. or the public defender." The court proceeded to
discuss various pretrial matters, including an estimated
schedule for the jury trial. With respect to that schedule,
the court stated it anticipated, at most, a two-week trial
with jury selection set to begin on April 23, 2012.
day jury selection was set to begin, defendant again moved to
relieve Camperi, reasserting a failure to communicate, a lack
of interest in the case, and a failure to investigate
witnesses. Defendant complained that his discovery packet was
incomplete and asserted there was a "major
conspiracy" "all the way from the police department
to confidential witnesses" and that the asserted
conspiracy included Camperi. Defendant said that he had
evidence of a romantic relationship between the investigating
officer and the victim Gonzalez. Camperi responded and denied
defendant's claims. The trial court found defendant's
contentions baseless and contrary to the record. It stated
that defendant's various requests appeared to be part of
a delay tactic. The court questioned the credibility of
defendant's additional assertion that he was in the
process of retaining private counsel. And, at one point, it
noted that defendant's case had been trailing for so long
that one of the expected defense witnesses was dying of
cancer and might not be able to testify if there were a
continuance. Defendant continued to complain about Camperi.
The trial court stated that defendant's complaints did
not "line up with the evidence before the court, or in
some cases reality." The court denied defendant's
Marsden motion, suggesting that defendant would be
unhappy with any public defender. It also denied his further
Faretta motion, finding that it was brought for the
purposes of delay. The trial court proceeded to consideration
of several pretrial matters and then began jury selection.
next morning, April 24, 2012, defendant again moved to
dismiss Camperi under Marsden and to represent
himself under Faretta. The court found that
defendant, in stating the grounds for his request, was lying
to justify his goal of getting rid of Camperi and failed to
establish any basis for relieving counsel. It denied the
once again asked if he could "go pro per." The
trial court indicated that if defendant was ready to proceed
to trial without counsel, he could do so. Defendant responded
that he would "need co-counsel" and
explained that it would take him two weeks to be ready for
trial. The court denied the request for cocounsel and said
the fact that defendant would need such a continuance if he
were granted self-representation was the reason why he was
not being permitted to represent himself. Moments later, the
court told defendant that it would give him a fair trial and
reiterated that defendant could represent himself, but only
if he was ready to proceed with the already commenced trial.
The court told defendant that his "two options [were]
you either represent yourself or you have Mr. Camperi
represent you, because I can't continue this case."
Defendant stated that he would like to represent ...