Opinion
D068471
01-30-2017
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS SCHROEDER, Defendant and Appellant.
Charles R. Khoury Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Anthony Da Silva and Peter Quon, Jr., for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD260975) APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed. Charles R. Khoury Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Anthony Da Silva and Peter Quon, Jr., for Plaintiff and Respondent.
Appellant Nicholas Schroeder was convicted of possessing and selling methamphetamine. On appeal, Schroeder argues the trial court erred in denying, as untimely, his motion to represent himself. (See Faretta v. California (1975) 422 U.S. 806, 835-836 (Faretta).) Because Schroeder made his Faretta motion on the day scheduled for trial, it was untimely, and the trial court did not err in denying it. (See People v. Lynch (2010) 50 Cal.4th 693, 722; People v. Powell (2011) 194 Cal.App.4th 1268, 1277-1278 (Powell).)
FACTUAL AND PROCEDURAL BACKGROUND
On August 20, 2014, a paid confidential informant working with a Drug Enforcement Administration (DEA) special agent, purchased 3.2 grams of methamphetamine from Schroeder. Schroeder was charged by way of complaint with possessing methamphetamine for sale (Health & Safe. Code, § 11378; count 1), and with selling methamphetamine (Health & Safe. Code, § 11379, subd. (a); count 2). It was also alleged that Schroeder served a separate prison term within the meaning of Penal Code section 667.5, and that he was convicted of a serious or violent felony crime within the meaning of the "Three Strikes" law.
On April 15, 2015, the trial court set Schroeder's jury trial for June 4, 2015. Thereafter, on May 27, 2015, Schroeder's motion to replace appointed counsel was presented and denied. (See People v. Marsden (1970) 2 Cal.3d 118 (Marsden.) At the conclusion of that proceeding, Schroeder's June 4, 2015 jury trial date was confirmed. (Ibid.)
On Thursday, June 4, 2015, Schroeder's case was assigned to a trial department and Schroeder made a Faretta motion before the assigned trial judge. The trial court inquired as to the nature of his conflict with his counsel, Schroeder explained counsel was unwilling to file motions with respect to his arrest warrant and to suppress; counsel then explained that she did not believe she could file the motions in good faith. The trial court then denied as untimely the Faretta motion and treating Schroeder's request as a further Marsden motion, denied that as well. On June 4, 2015, the trial court also ruled on the prosecutor's and defense counsel's numerous motions in limine and a 55-member prospective jury panel was sent to the courtroom.
Later, on June 4, 2015, after a lunch break, and while the jury panel was standing outside the courtroom, the prosecutor advised the trial court that she had recently received additional discovery from the DEA and had just provided it to defense counsel. The discovery indicated that the cellular telephone used in facilitating the sale was registered to Schroeder's brother rather than Schroeder; in response to receipt of the discovery, defense counsel moved to continue the trial, and the trial court adjourned trial until June 8, 2015. During the course of discussing whether the trial would be continued, Schroeder stated that he was unwilling to waive his right to a speedy trial, and the court determined that the time to commence trial expired in less than a week.
On Monday, June 8, 2015, jury selection commenced and ended with the selection of a jury plus two alternate jurors to try the case. The jury found Schroeder guilty of possessing methamphetamine for sale (Health & Safe. Code, § 11378; count 1) and selling methamphetamine (Health & Safe. Code, § 11379, subd. (a); count 2). Thereafter Schroeder admitted he had served a prior prison term within the meaning of Penal Code section 667.5 and the prosecutor dismissed the Three Strike special allegation.
Schroeder was sentenced to an aggregate three-year prison term and filed a timely notice of appeal.
DISCUSSION
" 'Criminal defendants have the right both to be represented by counsel at all critical stages of the prosecution and the right, based on the Sixth Amendment as interpreted in Faretta, supra, 422 U.S. 806 , to represent themselves. [Citation.] However, this right of self-representation is not a license to abuse the dignity of the courtroom or disrupt the proceedings. [Citation.] Faretta motions must be both timely and unequivocal . . . . [Citations.] Equivocation of the right of self-representation may occur where the defendant tries to manipulate the proceedings by switching between requests for counsel and for self-representation, or where such actions are the product of whim or frustration.' [Citation.] Moreover, a trial court rarely should grant such a motion on the day set for trial. Our Supreme Court has 'held on numerous occasions that Faretta motions made on the eve of trial are untimely.' [Citation.] A motion made that close to the day set for trial is 'extreme' (id. at p. 723) and now is disfavored [citations.]" (Powell, supra, 194 Cal.App.4th at pp. 1277-1278.)
In Powell, on the day set for trial the defendant made a Marsden motion, which was denied; the defendant then made a Faretta motion, which was denied as untimely. Because of a lengthy motion hearing, jury selection did not actually commence until two weeks later. Nonetheless, on appeal the court found the trial court did not err in denying, without a great deal of elaboration, the Faretta motion at the time it was made. "The trial court need not have elaborated on its ruling that defendant's motion could not be granted under such inopportune circumstances." (Powell, supra, 194 Cal.App.4th at p. 1278.)
With respect to the fact that, as events turned out, the trial did not commence for two more weeks, the court stated: "[W]e cannot fault [the trial court] for its inability to predict the unknown, so it makes no difference to our analysis of its ruling." (Powell, supra, 194 Cal.App.4th at p. 1278.)
As in Powell, the record here supports the trial court's order denying self-representation. Schroeder made his Faretta motion on the day trial was set to commence and indicated that he was not happy counsel failed to make motions with respect to his arrest warrant and to suppress evidence. In light of the fact the motion was made on the day trial was scheduled to commence, the trial court could reasonably conclude that permitting Schroeder to represent himself would impede the orderly administration of justice. (See Powell, supra, 194 Cal. App.4th at pp. 1277-1278)
As in Powell, the fact that shortly after the Faretta motion was denied, trial was briefly continued does not alter our analysis of the trial court's ruling at the time it was made. On appeal, Schroeder nonetheless suggests that because, when the trial judge discussed with counsel the new information provided by the prosecutor, the prosecutor did not object to continuing the trial, the trial judge should have then reconsidered Schroeder's motion. On this record, given the short continuance the trial court ordered, we are unwilling to hold the trial court had a sua sponte duty to reconsider Schroeder's Faretta motion.
In sum, the trial court did not err in denying Schroeder's motion to represent himself.
DISPOSITION
The judgment of conviction is affirmed.
BENKE, Acting P. J. WE CONCUR: NARES, J. AARON, J.