Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA095603, Larry S. Knupp, Judge.
James Koester and Law Offices of James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, and Laura J. Hartquist, Deputy Attorney General, for Plaintiff and Respondent.
MANELLA, J.
PROCEDURAL BACKGROUND
On July 12, 2006, an information was filed charging appellant Christian De La Pena in count 1 with assault with a firearm (Pen. Code, § 245, subd. (a)(2)), in count 2 with making criminal threat[s] (Pen. Code, § 422), in count 3 with dissuading a witness by force or threat[s] (Pen. Code, § 136.1, subd. (c)(1)), and in count 4 with possession of a firearm as a felon (Pen. Code, § 12021, subd. (a)(1)). It also alleged under counts 1 through 3 that appellant had two prior convictions for a serious felony (§ 667, subd. (a)(1)), and under all four counts that he had two prior convictions within the meaning of section 667.5, subdivision (b) and the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Appellant pleaded not guilty to the charges and denied the special allegations.
All further statutory citations are to the Penal Code, unless otherwise indicated.
Trial was by jury. On November 3, 2006, the jury found appellant not guilty on counts 1 through 3, and guilty on count 4, the firearm possession charge. The trial court struck one of appellant’s prior “strikes,” and sentenced him to a total term of six years in prison.
FACTUAL BACKGROUND
A. Prosecution Evidence
At trial, the key prosecution witness was Oscar Montalvan, who testified as follows: On May 28, 2006, Montalvan went to a barbecue party at 1126 East 69th Street in Los Angeles County. As he walked toward the party, a man asked to be admitted to the party so that he could drink some beer. Montalvan responded in the negative because it was not his party. Later, someone told Montalvan that his van’s window had been broken, and he left the party to check for damage. After he looked at the broken window, he walked back toward the party, intending to ask a group of men and women standing on the sidewalk whether they had seen anything. A man ran up, pointed a gun at him, and struck Montalvan’s mouth with his hand. As Montalvan fell to the ground, he said that he was going to call the police. The man said, “Yeah, you call and I’ll shoot you.” The man then left.
Although this witness stated that his full name is “Oscar Montalvan Garay, Jr.,” the parties refer to him as “Montalvan.” For the sake of clarity, we also do so.
After the attack, Montalvan phoned the police. When the officers arrived, they showed him some individuals they had detained, including appellant. Montalvan identified appellant as the man who had asked for admission to the party and the man with the gun. Later, at the preliminary hearing, he failed to identify appellant as the man with the gun.
At trial, Montalvan indicated that he no longer believed the man who had asked for admission and the man with the gun were the same person. He declined to identify appellant as the man with the gun, and testified that he was “confused” when he first identified appellant. Montalvan acknowledged that he was scared on the date of the crime, and that he remained fearful for himself and his family.
Los Angeles County deputy sheriffs Guillermo Sanchez and Brian Tolmasoff responded to the incident on May 28, 2006. When Sanchez arrived, he and other deputy sheriffs detained appellant and two other males who were standing at the front of 1153 East 69th Street, and found a loaded handgun on the ground inches behind appellant’s feet. Tolmasoff then conducted a field show-up. Montalvan identified appellant as the man who had assaulted him with a gun, and identified a second individual, Marco Diaz, as someone who had punched him in the face several times. Montalvan did not recognize the third person -- named “Daniel” -- who was released. No fingerprints were found on the gun discovered near appellant. Appellant entered into a stipulation that he had a prior felony conviction.
Sanchez testified that he was present when Montalvan later appeared at the preliminary hearing. According to Sanchez, appellant said something in open court to Montalvan, who then declined to identify appellant as his assailant.
B. Defense Evidence
Appellant presented no evidence.
When appellant proffered Marco Diaz and Daniel Villa as witnesses, each invoked his privilege against self-incrimination under the Fifth Amendment of the United States Constitution, and neither testified at trial.
DISCUSSION
Appellant contends that (1) there is insufficient evidence to support his conviction, (2) the prosecutor engaged in misconduct during closing argument, and (3) the trial court improperly denied his request to discharge his retained counsel and proceed in propria persona.
A. Substantial Evidence
Appellant contends that his conviction on count 4 for possession of a firearm fails for want of substantial evidence. The elements of this offense are “conviction of a felony and ownership, possession, custody or control of a firearm. [Citations.] Knowledge is also an element of the offense. [Citation.]” (People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) Appellant argues that there is no evidence demonstrating the element of possession.
“‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which the determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
To establish the element of possession, it is sufficient to demonstrate that the defendant had actual or constructive possession of the firearm. (People v. Cordova (1979) 97 Cal.App.3d 665, 670.) “Actual possession occurs when the defendant exercises direct physical dominion and control over the item . . . . [Citation.] Constructive possession does not require direct physical control over the item ‘but does require that a person knowingly exercise control or right to control a thing, either directly or through another person or persons.’ [Citation.]” (People v. Austin (1994) 23 Cal.App.4th 1596, 1608-1609, disapproved on another ground in People v. Palmer (2001) 24 Cal.4th 856, 867.) Possession and knowledge may be demonstrated by circumstantial evidence. (People v. Cordova, supra, 97 Cal.App.3d at pp. 669-670.)
Although proximity to contraband, by itself, does not establish constructive possession, it will support a finding of constructive possession when added to other relevant factors. (People v. Redrick (1961) 55 Cal.2d 282, 285-286.) Thus, in People v. Thompson (1977) 72 Cal.App.3d 1, 5, police officers responded to a report of a man firing a gun. The defendant ran up a stairway holding a red scarf, and then returned to the bottom of the stairway without the scarf. (Ibid.) The court concluded that the defendant’s conduct adequately established that he possessed a handgun wrapped in the scarf, which was found on the stairway. (Ibid.) Again, in People v. Herron (1976) 62 Cal.App.3d 643, 646, police officers heard a gunshot, saw the defendant make a throwing motion, heard the sound of something striking the ground, and found a shotgun about 25 feet from the defendant. (Id. at p. 646.) The court held that the defendant’s conduct and proximity to the shotgun constituted substantial evidence that he possessed the shotgun. (Ibid.)
That persons other than the defendant also had access to a gun does not preclude a finding that the defendant possessed the gun. In People v. Nieto (1966) 247 Cal.App.2d 364, 366, the driver of a car was convicted of possession of a firearm as a felon. At trial, a passenger in the car testified that he owned the guns in question, which police officers had found under the central part of the car’s front seat. (Id. at pp. 366-367.) The driver denied that he knew about or possessed the guns, but admitted that he had lied when the officers asked for his passenger’s name. (Id. at p. 367.) The court concluded that substantial evidence supported the driver’s conviction, reasoning that the presence of the guns under the car’s front seat, together with the defendant’s lie, was circumstantial evidence of joint or constructive possession. (Id. at p. 368.)
Here, there is ample evidence that appellant had knowledge and constructive possession of the gun near his feet. Montalvan told the deputy sheriffs that appellant assaulted him with a gun, and appellant was the closest person to the gun the deputy sheriffs found a few inches behind him. This evidence supports the reasonable inference that appellant held the gun before the deputy sheriffs arrived, and that he dropped it behind his back to disassociate himself from it.
Appellant’s reliance on People v. Tripp (2007) 151 Cal.App.4th 951 (Tripp), People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), and People v. Foster (1953) 115 Cal.App.2d 866 (Foster) is misplaced, as these cases are factually distinguishable. In Tripp, police officers found powdered methamphetamine on the nightstand in the defendant’s bedroom in a house he shared with other occupants. (Tripp, supra, 151 Cal.App.4th at pp. 954-955.) The court concluded that the mere proximity of the powder to appellant’s bed did not establish he knew it was contraband. (Id. at pp. 958-959.) In Killebrew, police officers searched three cars close to the site of a gang shooting, and discovered a gun in one car and a second gun near the other two cars. (Killebrew, supra, 103 Cal.App.4th at p. 647.) The defendant, a gang member found standing in the vicinity of the car containing the gun, was convicted of conspiracy to possess a firearm. (Id. at pp. 647-648.) The court held there was insufficient evidence that the defendant had possessed either gun found in or near the cars. (Killebrew, supra, 103 Cal.App.4th at pp. 647, 660-661.) There was no evidence he had occupied the cars or exercised control over them, and the principal testimony regarding constructive possession came from an expert, who opined that when one gang member in a car possesses a gun, every other gang member in the car knows about the gun and jointly possesses it. (Id. at pp. 652, 658, 660-661.) The court concluded this was improper opinion on an ultimate fact. (Id. at p. 658.) Finally, in Foster, two passengers in a car were convicted of possession of heroin after police officers testified they saw a small package of heroin fly out of the car’s front passenger window. (Foster, supra, 115 Cal.App.4th at p. 867.) The court affirmed the conviction of one passenger who lied at trial, but reversed the other passenger’s conviction because nothing suggested he knew about the heroin, aside from his presence in the front seat of the car. (Id. at pp. 868-869.) In contrast with each of these cases, here there is considerable evidence that the gun belonged to appellant, who was aware of its character.
Appellant contends that we must disregard Montalvan’s identification of appellant as his assailant because the jury found appellant not guilty on counts 1 through 3, which arose from the attack on Montalvan. He is mistaken. Section 954 states in part: “An acquittal of one or more counts shall not be deemed an acquittal of any other count.” This provision represents a recognition that inconsistent verdicts often reflect “‘not . . . the confusion but the mercy of the jury.’” (See People v. Amick (1942) 20 Cal.2d 247, 252, quoting People v. Horowitz (1933) 131 Cal.App. Supp. 791, 793.)
As the court explained in People v. Lopez (1982) 131 Cal.App.3d 565, 569-571 (Lopez), the principle underlying section 954 permits appellate courts to examine the entire trial record for substantial evidence to support a conviction on a particular count, regardless of whether the jury made determinations with respect to other counts or special allegations that may be factually inconsistent with the conviction. There, the defendant was charged with six counts of assault with a deadly weapon, each of which was accompanied by an allegation that the defendant had personally used a firearm. (Lopez, at pp. 568-569.) The evidence at trial disclosed that the defendant, along with several other men, had participated in multiple shootings at a holiday picnic. (Ibid.) The jury found the defendant guilty on each count of assault with a deadly weapon, but found the gun use allegations not true. (Id. at p. 569.)
On appeal, the defendant contended that the court could affirm his convictions only if there was substantial evidence that he had acted as an aider and abettor, arguing that the jury’s special findings barred the court from examining the record for substantial evidence that he had been the direct perpetrator of the shootings. (Lopez, supra, 131 Cal.App.3d at p. 569.) Pointing to the well established principle “of refusing to invalidate an inconsistent jury verdict if it is otherwise supported by substantial evidence,” the court held that it was “not limited to [the defendant’s] proffered theory in [its] examination of the sufficiency of the evidence.” (Id. at p. 571.) In view of Lopez, the verdicts on counts 1 through 3 do not disturb our conclusion that there was sufficient evidence to support appellant’s conviction on count 4.
B. Prosecutor’s Closing Argument
Appellant contends that the prosecutor engaged in misconduct during closing argument by telling the jury that appellant’s mere proximity to the gun found at his feet established that he possessed it. In the alternative, he contends that his counsel rendered ineffective assistance by failing to object to these remarks. As we explain below, both contentions fail.
1. Prosecutor’s Remarks
During the opening portion of closing argument, the prosecutor described the elements of the offenses charged in counts 1 through 4, and the evidence relevant to the elements. When she reached count 4, she stated: “I [would] kind of like for you to consider [count 4] a little bit separately. You cannot completely make these crimes distinctive. But when you are considering them, . . . counts 1, 2 and 3 are one act or series of acts. And then you have the defendant detained down the street and a firearm is found, and that’s when count number 4 arrives. [¶] They are not completely separate because some of the evidence that helps support Mr. Montalvan’s testimony that the defendant had a firearm and the perpetrator who did all these things used a firearm is the fact that a firearm was found near the defendant down the street a few minutes later. [¶] But in terms of considering the charges, arguably if you find the defendant not guilty of count 1, you should find him not guilty of [counts] 2 and 3, but you can consider count 4 totally and completely separate, even though arguably all of these crimes are separate crimes. But I’m telling you [the] group of acts [in counts] 1, 2, and 3 encompasses the same sort of conduct around the time frame, and then count 4 is down the street when the police arrive[].”
The prosecutor continued: “Count 4, you have a police officer telling you that the defendant is detained down the street, I think it was five or six houses, . . . from where the crime actually occurred. When the defendant is detained, he’s detained with two other males. Officer [Sanchez] testified to you that a firearm was found near the feet, I think he said a couple of feet, behind the defendant. . . .”
After explaining the consequences of appellant’s stipulation that he was a convicted felon, the prosecutor stated: “So the two elements that apply to this charge are [one,] that the defendant had in his possession or under his control a revolver. And two, the defendant had knowledge of the presence of the revolver. [¶] Well, what’s the argument there? It’s found near his feet moments after he’s been accused of committing a crime with a firearm. So the argument is that . . . it’s under his possession. It’s in his control. He had it in his hand just moments prior, and therefore he knew of it, knew of its presence, and was able to exercise control over this particular firearm. [¶] So I argue . . . that if for some reason or other [your verdicts on] counts 1, 2, and 3 are not guilty, please consider count 4 separate in the respect that it’s based on not Mr. Montalvan’s testimony, its based on police officer testimony that [] they arrive at the scene moments later and where they find the gun with respect to the defendant.”
2. Prosecutorial Misconduct
Appellant contends that the italicized portion of the prosecutor’s argument constitutes misconduct. He argues that the prosecutor’s remark that count 4 was based on “police officer testimony,” rather than Montalvan’s testimony, amounted to a misstatement of law, namely, that the jury could find that appellant possessed the gun found near him based solely on its proximity to him.
No objection was raised to the remark during trial, and thus appellant has forfeited his contention. Absent an objection and request for an admonition to the jury, we review a contention of prosecutorial misconduct “‘only if an admonition would not have cured the harm caused by the misconduct.’” (People v. Earp (1999) 20 Cal.4th 826, 858.) Appellant does not contend this exception is applicable here. We have nonetheless examined appellant’s contention, and conclude that the prosecutor did not stray into error.
“‘[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citation.]’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 829, quoting People v. Marshall (1996) 13 Cal.4th 799, 831.) To prevail on a claim of prosecutorial misconduct based on remarks to the jury, “the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.” (People v. Frye (1998) 18 Cal.4th 894, 970.) Under this standard, the remark, viewed in context, was not improper.
Our analysis is informed by People v. Morales (2001) 25 Cal.4th 34. There, the defendant was discovered intoxicated in a van containing a vial of phencyclidine (PCP), and charged with possession of PCP (Health & Saf. Code, § 11377, subd. (a)). (25 Cal.4th at p. 37.) When the prosecutor suggested in closing argument that the jury could infer that the defendant had possessed PCP from his state of intoxication, the defendant contended that the argument hinged on a misstatement of law, namely, that mere intoxication necessarily proved possession. (Id. at pp. 44-45.) Although our Supreme Court noted that the prosecutor made remarks which, taken in isolation, urged the jury to infer possession from intoxication, it held that the remarks, viewed in context, were not misleading because the prosecutor also identified other evidence of possession. (Id. at pp. 46-47.) In so concluding, the court reasoned that while in hindsight, the prosecutor’s arguments were “less than ideal,” they were not improper. (Id. at p. 47.) We reach the same conclusion here.
The prosecutor began the relevant portion of her argument by emphasizing that the conduct underlying counts 1 through 3 was separate in time from that underlying count 4: whereas counts 1 through 3 arose from “one act or series of acts” involving Montalvan, count 4 arose when appellant was later detained, and a gun was found near him. She nonetheless noted that the offenses were not “completely separate” because the evidence underlying count 4 was relevant to counts 1 through 3.
The prosecutor then described the key fact underlying count 4 -- that a gun was found at appellant’s feet when he was detained -- by reference to the testimony from the deputy sheriffs. Her subsequent remarks underscored that this fact raised the question whether appellant possessed the gun when he was detained, but did not -- by itself -- resolve the question. She argued that he knowingly possessed the gun at that time because “[h]e had it in his hand just moments prior, and therefore he knew of it, knew of its presence, and was able to exercise control over this particular firearm.” (Italics added.)
Accordingly, viewed in context, the prosecutor’s subsequent statement that count 4 was based on police officer testimony, rather than Montalvan’s testimony, was intended merely to reaffirm the temporal separation between the conduct underlying counts 1 through 3 and the conduct underlying count 4. Because her preceding argument stressed that the evidence that appellant was Montalvan’s assailant was relevant to establish possession under count 4, no reasonable juror could have understood the statement at issue to mean that appellant’s mere proximity to the gun was sufficient for this purpose. Any uncertainty on this matter was resolved by the jury instructions, which told the jury that it must decide each count separately (CALJIC No. 17.02), that appellant could be found guilty or not guilty of “any or all” of the crimes charged (CALJIC No. 17.02), and that appellant constructively possessed the gun only if he knowingly exercised some form of control over it (CALJIC No. 12.44). There was no prosecutorial misconduct.
3. Ineffective Assistance of Counsel
Appellant also contends that his counsel rendered ineffective assistance by failing to object to the prosecutor’s argument. He is mistaken. As we have explained (see pt. B.2, ante), this argument was not improper, and therefore defense counsel did not err in declining to raise meritless objections to it. (People v. Price (1991) 1 Cal.4th 324, 387.)
“In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citations.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof. [Citations.] Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Jennings (1991) 53 Cal.3d 334, 357.)
C. Discharge of Retained Counsel
Appellant contends that the trial court improperly denied his request to discharge his retained counsel and represent himself. We disagree.
1. Governing Principles
“The right of a nonindigent criminal defendant to discharge his retained attorney, with or without cause, has long been recognized in this state.” (People v. Ortiz (1990) 51 Cal.3d 975, 983 (Ortiz).) Defendants seeking to discharge retained counsel fall outside the requirements imposed on defendants with court-appointed counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and thus are not obliged to show that counsel is providing inadequate assistance or that they are embroiled in an irreconcilable conflict with counsel. (People v. Lara (2001) 86 Cal.App.4th 139, 155-156.) Nonetheless, as our Supreme Court explained in Ortiz, the trial court may deny a request to discharge retained counsel “if discharge will result in ‘significant prejudice’ to the defendant [citation], or if it is not timely, i.e., if it will result in ‘disruption of the orderly processes of justice’ [citations].” (Ortiz, supra, 51 Cal.3d at p. 983.)
In Marsden, supra, 2 Cal.3d at page 123, our Supreme Court held that if a defendant seeks to have new counsel appointed, the trial court must inquire into the bases of the defendant’s dissatisfaction and exercise discretion in deciding whether to grant the defendant’s request.
In Faretta v. California (1975) 422 U.S. 806 (Faretta), the United States Supreme Court held that a defendant in a criminal case “has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so.” (Faretta, supra, 422 U.S. at p. 807, italics deleted.) Under Faretta, “[a] trial court must grant a defendant’s request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial. [Citations.]” (People v. Welch (1999) 20 Cal.4th 701, 729, overruled on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 89.)
When the defendant makes a timely and unequivocal request for self-representation, the trial court is required to determine whether the defendant’s election is voluntary and intelligent. (People v. Kenner (1990) 223 Cal.App.3d 56, 58 (Kenner).) Due to the countervailing importance of a defendant’s right to representation by counsel, courts “must indulge every reasonable inference against waiver of the right to counsel.” (People v. Marshall (1997) 15 Cal.4th 1, 20.)
2. Underlying Proceedings
Appellant was represented by a retained attorney, George Woodworth, throughout the pre-trial proceedings. On October 30, 2006, the date set for the beginning of trial, the trial court conducted a hearing before initiating the selection of the jury. At the hearing, the parties discussed bifurcating the trial of the prior conviction allegations, and the trial court proposed that appellant stipulate to a prior felony conviction for the purposes of count 4. When the court asked appellant whether he agreed to the stipulation, the following colloquy occurred:
“The defendant: Yes, your honor. But before we move on, man, I don’t -- I don’t even want this dude to represent me no more. I want to fire him, sir.
“The Court: Okay. You’re going to be your own lawyer. We’re going to trial now. I have a jury standing literally 30 feet away.
“The defendant: It’s okay. I just don’t want him to represent me no more
“The Court: Now, wait a minute.
“The defendant: For the fact that he
“Mr. Woodworth: He wants to do a Marsden, your honor, I think. He told me he just wasn’t ready.
“The Court: You are privately retained?
“Mr. Woodworth: I am.
“The Court: He doesn’t have to do [a] Marsden. He doesn’t get a Marsden on a privately retained attorney.
“Mr. Woodworth: He wants to fire me.
“The Court: If he fires, you are going to trial right away. Right now, literally 30 feet that way, are the jurors in this case. I’m going to bring them up . . . in about five minutes. We are going to trial. We are not changing counsel two minutes before trial.
“The defendant: I haven’t even been able to see the judge for the last three times that I came to court. I’ve been trying to fire this man for the longest -- he hasn’t been representing me right. I’m not going to do something for something I didn’t do.
The minute orders from the two preceding hearings indicate that appellant was “present (in lock up).” Appellant’s most recent appearance in court prior to the October 30, 2006 hearing was on October 4, 2006.
“The Court: He is privately retained. You know, you may fire him at will because he’s privately retained. But I’m telling you if you fire him now, you can do it. I’ll let you fire him. That’s not a problem. We are going to trial, i.e., you’re going to be your own lawyer.
“The defendant: All right.
“Mr. Woodworth: Don’t do that.
“The Court: That’s a serious mistake, sir. You are facing life. This is a life case. And you’re going to be your own lawyer?
“The defendant: He don’t even care about me, man.
“The Court: Sir, this is a life case.
“The defendant: I’m being railroaded.
“The Court: Let’s try the case. That’s why we’re here, to try this case. That’s exactly why we are here. You are presumed to be innocent. Let’s try this case.
“The defendant: I didn’t do nothing man.
“The Court: All right. The People feel differently about that issue. And that’s why we are here. That’s why people like me get hired is we try cases. That’s why we have a jury standing outside. Let’s find out. [¶] All right. We are going to bifurcate the issue of the priors. The defendant will stipulate that [he] is for the purposes of count 4, an ex-felon. Have I stated things correctly?
“Mr. Woodworth: Yes.” (Italics added.)
Thereafter, appellant never sought to represent himself or to discharge Woodworth, who represented him at trial and during the post-trial proceedings.
3. Analysis
Appellant contends that the trial court improperly denied his request to discharge Woodworth and proceed in propria persona. As appellant observes, he twice responded in the affirmative when the trial court stated that if he fired Woodworth, he must represent himself at trial, which would begin as scheduled. He argues that his responses constituted an unequivocal request to discharge Woodworth and proceed immediately to trial in propria persona, which the trial court summarily denied without any inquiry into the factors identified in Ortiz and Faretta.
Appellant does not suggest that the trial court erroneously declined to continue trial to permit him to prepare his defense or retain new counsel. Because he never sought a continuance, any such contention has been forfeited (People v. McCann (1939) 34 Cal.App.2d 376, 378).
In our view, the record establishes that the trial court was prepared to honor appellant’s request, which appellant abandoned before the trial court could make further inquiry. Numerous courts have held that after a defendant invokes the right to self-representation or seeks to change his counsel, a waiver may be found if it reasonably appears that the defendant abandoned the request. (E.g., People v. Dunkle (2005) 36 Cal.4th 861, 907-908; People v. Vera (2004) 122 Cal.App.4th 970, 981-982 (Vera); People v. Skaggs (1996) 44 Cal.App.4th 1, 7-8 (Skaggs); Kenner, supra, 223 Cal.App.3d at pp. 60-62; Brown v. Wainwright (5th Cir. 1982) 665 F.2d 607, 611.)
Instructive applications of this principle are found in Kenner, Skaggs, and Vera. In Kenner, the trial court responded to the defendant’s Faretta motion by setting a hearing on the motion. (Kenner, supra, 223 Cal.App.3d at p. 58.) Because the defendant was in custody on an unrelated matter, he repeatedly missed the hearing, which was continued three times. (Ibid.) The defendant subsequently appeared with retained counsel, who asked that the motion be reserved until the next pretrial hearing. (Id. at pp. 58-59.) Thereafter, the defendant never mentioned his Faretta motion until he challenged his conviction on appeal. (Ibid.) The court concluded that he had abandoned the motion, noting that he never asked for a ruling despite repeated opportunities to do so. (Id. at p. 62.) It stated: “Defendants who sincerely seek to represent themselves have a responsibility to speak up. . . . Therefore, we hold that on this record, where appellant had both time and opportunity to follow up on his request for a hearing on his Faretta motion, and failed to do so, he must be deemed to have abandoned or withdrawn that motion.” (Ibid.)
In Skaggs, the defendant asserted, “‘I’d like to go pro per if I could,’” during a Marsden hearing, which occurred at his arraignment. (Skaggs, supra, 44 Cal.4th at p. 5.) The trial court denied the Marsden motion, but never expressly addressed the issue of self-representation. (Id. at. pp. 4-8.) Thereafter, the defendant accepted representation by a court-appointed attorney without requesting self-representation. (Ibid.) On appeal, the defendant contended that the trial court’s silence regarding his remark about self-representation at the Marsden hearing constituted the summary denial of a Farretta motion. The court rejected this contention, reasoning that the defendant’s comment was not an unequivocal request for self-representation. (Id. at p. 7.) In addition, it concluded that even if the comment constituted a Faretta motion, the defendant abandoned the motion: “[The defendant’s] failure to request such a ruling or to raise the issue again and his silent acceptance of defense counsel’s assistance . . . constitute a waiver or abandonment of any right to self-representation [the defendant] arguably asserted.” (Id. at p. 8.)
Again, in Vera, the defendant asserted a Marsden motion regarding his court-appointed attorney before trial. (Vera, supra, 122 Cal.App.4th at p. 975.) Without giving the defendant a full opportunity to explain his dissatisfaction with his counsel, the trial court denied the motion “without prejudice,” and offered the defendant an opportunity to renew it. (Id. at p. 976.) The defendant never reasserted his Marsden motion. (Ibid.) Relying on Kenner and Skaggs, the court concluded that the defendant’s failure to seek a further hearing on his motion constituted an abandonment of his challenge to his court-appointed counsel. (Id. at pp. 981-982.)
We reach the same conclusion here regarding appellant’s request to discharge Woodworth and proceed in propria persona. After the trial court indicated its willingness to grant appellant’s request, Woodworth and the trial court urged appellant to reconsider the request, pointing to the risks of self-representation. The trial court was obliged to warn appellant about these risks (People v. Clark (1992) 3 Cal.4th 41, 107); moreover, Woodworth acted properly in advising appellant on this matter (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1010). Although appellant expressed dissatisfaction over the quality of Woodworth’s representation, he never affirmed his right to self-representation, but instead permitted Woodward to act on his behalf. When the trial court asked whether appellant agreed to stipulate to his status as an ex-felon, Woodward responded, “Yes.” Appellant said nothing, and thereafter Woodward acted as defense counsel without any objection from appellant. The record thus establishes that appellant abandoned his request to discharge Woodworth and represent himself.
The case authority appellant cites in support of his contention is factually distinguishable. In each case, the court denied the defendant’s request to proceed in propria persona. (People v. Nicholson (1994) 24 Cal.App.4th 584, 590-595 [trial court improperly denied Faretta request on eve of trial when defendant did not request continuance]; People v. Rivers (1993) 20 Cal.App.4th 1040, 1048-1049 [trial court improperly denied Faretta request on eve of trial without making appropriate inquiry].) As explained above, that did not occur here. In sum, there was no error.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, Acting P. J. SUZUKAWA, J.