People v. Wilson

         CERTIFIED FOR PARTIAL PUBLICATION^[*]

          APPEAL from a judgment of the Superior Court of Los Angeles County No. BA454306, Jose I. Sandoval, Judge. Affirmed.

          Edward Mahler, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

          DHANIDINA, J.

         Damion Wilson pleaded no contest to forcible rape and admitted prior felony convictions after the trial court denied his Faretta^[1] motion. On appeal, he contends that the motion should have been granted and that he did not knowingly and intelligently waive his right to a jury trial on his priors. We reject these contentions. And, in the published portion of this opinion, we reject his contention that he is entitled to remand for resentencing under Senate Bill No. 1393. Where, as here, the sentence resulted from a negotiated plea, a defendant is not entitled to remand under that law.

         BACKGROUND

         Wilson and the victim had a brief relationship. After it ended, he forcibly entered the victim's home and raped her. An information therefore charged Wilson with kidnapping (Pen. Code, ^[2] § 207, subd. (a); count 1), forcible rape in the course of a burglary (§§ 261, subd. (a)(2), 667.61, subds. (a), (d)(4); count 2), first degree burglary, person present (§ 459; count 3), and assault to commit a felony during commission of a first degree burglary (§ 220, subd. (b); count 4). On November 6, 2017, Wilson pleaded no contest to forcible rape and admitted he had a prior strike and a prior serious felony conviction (§ 667, subd. (a)(1)). Pursuant to the negotiated plea, the trial court sentenced him to six years, doubled to 12 years based on the prior strike, plus five years for the prior serious felony, for a total of 17 years.

         DISCUSSION

         I. Faretta request

         On the eve of trial, Wilson asked to represent himself. The trial court denied the request, finding it equivocal. As we now explain, the request was properly denied, but for another reason, untimeliness.

         A defendant in a criminal case has a Sixth Amendment right to represent himself or herself. (People v. Marshall (1997) 15 Cal.4th 1, 20.) To invoke this right, the defendant must unequivocally assert it within a reasonable time before trial (People v. Windham (1977) 19 Cal.3d 121, 127-128), and the request must be knowing and voluntary (People v. Doolin (2009) 45 Cal.4th 390, 453). A timely, unequivocal request for self-representation must be granted, no matter how unwise the request. (Windham, at p. 128.) Otherwise, untimely requests for self-representation are addressed to the trial court's sound discretion. (Id. at pp. 127-129.) Also, an equivocal request must be distinguished from a conditional one. A conditional request is one, for example, where the defendant asks that counsel be removed and, if not removed, that the defendant wants to represent himself. (People v. Michaels (2002) 28 Cal.4th 486, 524.) Such a request is not equivocal. (Ibid.) To evaluate whether a trial court erred by denying a Faretta request, we look at the defendant's words and conduct to determine whether the defendant really wanted to give up the right to counsel. (Marshall, at pp. 25-26.)

         Here, Wilson's words and conduct were clear that if he did not get a different counsel, then he wanted to represent himself. On the day set for trial, Wilson made a Marsden^[3] motion, which was denied.^[4] He then asked to represent himself. The trial court advised Wilson of the felony charges against him, that he faced three different strikes and two life counts, and that self-representation was a bad decision. When the trial court asked Wilson if he really did not want help to understand the technical and sophisticated legal principles, Wilson said, “It's not what I wish but, ” “I wish I had counsel that I believe is going to fight on my behalf.” The trial court found the request to be equivocal: “It has to be unequivocal. It's clear to me you want counsel. It's clear you need counsel. And this is in response to a[n] adverse ruling in another motion, sir.”

         Wilson then asked if he could have cocounsel, and the trial court told him no, this was not a way to get a different lawyer. Wilson replied, “What I'm saying-I don't need a lawyer to represent me. A standby lawyer-I don't need somebody that's going-” At that point, the trial court interrupted Wilson and asked why he needed a standby lawyer. Wilson said, “just in case if I have a question.” When the trial court explained that this was not how a standby lawyer works, Wilson said he did not need counsel, then. The trial court repeated that the request was equivocal, and that Wilson was trying to get another lawyer, recognizing he needed representation. Wilson repeated he didn't need another counsel. He said, “I'm not asking for another counsel. You said this is my decision. [¶]... [¶]... This is not-this is not what I want to do, but my counsel that's representing me left me no choice. I'm going in blind, not knowing what's going on, your Honor.” This, the trial court responded, was exactly the equivocation that made it clear Wilson did not want to represent himself. The trial court therefore denied the Faretta request.

         As this demonstrates, Wilson's dissatisfaction with his counsel prompted his Faretta request. But, a clearly stated Faretta request motivated by dissatisfaction with counsel is not equivocal. (Moon v. Superior Court (2005) 134 Cal.App.4th 1521, 1529-1530.) In People v. Weeks (2008) 165 Cal.App.4th 882, for example, a public defender represented the defendant. The defendant then was permitted to go pro se. After several months, the defendant asked if his standby counsel could take over but was told that if he lost his pro per status the original public defender would be reappointed. The defendant made it clear that if he had to choose between remaining in propria persona or being represented by his original public defender, then he would choose the former. (Id. at p. 885.) Finding the defendant's position to be equivocal, the trial court revoked his status and reappointed the original public ...