Filed 5/20/15 P. v. Cruz CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. DAVID CHRISTOPHER CRUZ, Defendant and Appellant. D065008

(Super. Ct. No. SCE309627)

APPEAL from a judgment of the Su perior Court of San Diego County, Herbert J. Exarhos, Judge. Affirmed. Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gera ld A. Engler, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, Peter Quon, Jr. and Raquel M. Gonzalez, Deputy Attorneys Genera l, for Plaintiff and Respondent.

A jury convicted David Christopher Cruz of second degree murder and assault on a child with force likely to cause great bodily injury resulting in death. The court2 sentenced him to 25 years to life on the assa ult conviction and stayed his sentence of 15 years to life on the murder conviction. Cruz appeals, contending (1) the trial court erred in denying his pretrial moti on to represent himself under Faretta v. California (1975) 422 U.S. 806 ( Faretta ), (2) his assault conviction violates due process because the offense does not have a requirement that the defendan t know his act could result in death, and (3) the statutory penalty of 25 years to life on his assault conviction violates the equal protection clause of the federal Constitution. We reject Cruz's argum ents and affirm the judgment.
FACTUAL AND PROCEDUR AL BACKGROUND In early 2011, Cruz bega n dating Sharika Summers. Shortly thereafter, Cruz offered to care for Summers's infant son, Cordero Cisneros , Jr., so Summers could save money on daycare. (Undesignated date refe rences are to the year 2011.) In March, Summers noticed bruises on Cisneros on multip le occasions. Summers wondered if Cruz was hurting Cisneros, but she dismissed the th ought because Cruz acted liked everything was fine. According to Summers, Cruz treated Cisneros like his own son. Later that month, when Cisneros was a pproximately seven months old, Summers's neighbor saw Cruz outsi de holding Cisneros. Cruz was panicking and asking for help. The neighbor brought Cruz and Cisneros into his apartment and called 911. The neighbor's mother began perfo rming CPR on Cisneros who wa s not breathing. Cisneros had swelling in the arms, ches t and head area. He also had black, purple and green bruises on his legs, face, and chest.3 San Diego County Sheriff's Deputy Damo n Chandler arrived at the neighbor's apartment before paramedics. Cruz was sta nding outside the apartm ent and told Deputy Chandler, " 'Please help me. I don't know what's wrong with my baby.' " Deputy Chandler observed that Cisn eros had "purple blotches" on his face and an abrasion under his chin. Deputy Chandler could not find a pulse on Cisneros and administered CPR until the paramedics arrived. Deputy Chandler tried to obtain inform ation from Cruz regarding what happened to Cisneros. Cruz said he had given Cisner os formula, some solid baby food, and then put him down for a nap. When Cruz checked on Cisneros two hours later, Cisneros was unresponsive. Cruz stated he administ ered CPR for approx imately 15 minutes. San Diego County Sheriff's Deputy Janine Alioto also responde d to the scene. When she arrived, Deputy Alioto heard Cruz say, " 'It's my fault. It's my fault.' " Cruz told her that while he was babysitting Cisneros , he heard a loud crash like shelves falling. Cruz further said that when he went into Cisneros's room, Cisneros was not moving. While she was at work, Summers received a call about her son. She rushed home to see what happened. When she got there, Cruz ran up to her, got down on his knees, and said, " 'I'm sorry, I'm sorry, I'm sorry.' " Cruz told Summers that he was playing a video game in the living room when he heard a crash in Cisneros's room. Cruz stated that when he went in Cisneros's room , Cisneros was lying on his side. Summers saw Cisneros at the hospital. Cisneros had a large dark mark on his face like somebody had hit him. A doctor inform ed Summers that Cisneros was brain dead and could not be saved.4 That same night, deputies arrested Cr uz. San Diego County Sheriff's Detective Donnie Sossaman interviewed Cruz at the Sheriff's station. Cruz stated that he got angry when Cisneros would not stop fussing. Cruz snatched Cisneros up and shook him. At that point, Cruz got scared because Cisneros's head snapped back. Cr uz also stated that he had hit Cisneros in the stomach, causing Cisneros to fall off the couch and onto the floor. Cruz put Cisneros in his crib and no ticed that Cisneros would not sit up. Thus, Cruz attempted to do CPR on Cisneros and slapped him to try to revive him. Cruz admitted to getting mad and shaki ng Cisneros on three occasions. An autopsy revealed that Cisneros had numerous bruises and abrasions on his face and body. He had multiple rib fractures that had occurred at differe nt times and factures on the bones between his elbow and wrist. Cisneros also had multiple hemorrhages on the tissues below the surface of his scalp. The medical examiner classified Cisneros 's death as a homicide. He stated the cause of death was brain damage resulting from a lack of oxygen and blood flow to the brain caused by head injury. A defense expert testified that it was possible that Cisneros died from an "ear infection that either spread to the blood a nd developed seps is or caused thrombosis of the big vein in the head."
DISCUSSION
I. Denial of Faretta Motion
A. Facts One month before trial, defense counsel informed the court th at Cruz wished to bring a motion for substitution of appointed counsel under People v. Marsden (1970) 25 Cal.3d 118 ( Marsden ). The trial court conducted a Marsden hearing outside the presence of the prosecutor. Cruz comp lained that defense counsel refused to call a character witness and continuously told him to take a plea deal. Cruz thought defense counsel was not acting in Cruz's best intere st. When the court inquired if Cruz had other complaints, Cruz responded, "There's not really much I can say to deter your mind. It seems like your mind is set up that I have a pretty good lawyer, even though I feel otherwise." Defense counsel responded to Cruz's alle gations, explaining that he informed Cruz of the tactical dangers of opening the door to negative character evidence. Defense counsel indicated he conferre d with multiple colleagues who all agreed that the defense should not open the door to ch aracter evidence. Defense coun sel also stated he continued to discuss the possibility of a plea agreement with Cruz be cause of the mounting evidence against Cruz. Counsel believed a plea deal was in Cruz's best interest based on the charges and eviden ce in the case. The trial court denied the Marsden motion, explaining that defense counsel was doing a great job and using "Herculean efforts" to represent Cruz. The court stated it did not find any shortcomings in defense counsel's advice to Cruz. Shortly thereafter, defense counsel informed the court that Cruz wanted to address the court about representing himself. Defense counsel stated it was the first time Cruz had made the request. The court instructed Cruz to fill outan "Acknowledgement Regarding SelfRepresentation and Waiver of Ri ght to Counsel" pursuant to People v. Lopez (1977) 71 Cal.App.3d 568 ( Lopez waiver). Cruz completed the Lopez waiver, stating that he6 wanted to represent himself and acknowledgi ng the dangers and disadvantages of selfrepresentation. After receiving Cruz's Lopez waiver, the court confirmed with Cruz that this was the first time he was seeking to represent himself and commented the case was two and a half years old. The court then inquired wh ether Cruz would be re ady to proceed with trial at the scheduled date, wh ich was in approximately one mo nth. Cruz stated that he would not be ready to proceed and needed time to research. Cruz agreed with the court that they would be "star ting from scratch timewise." The court denied Cruz's Faretta motion, stating, "[N]ow, virtually at the last minute, and certainly compara tively the last minute, the de fendant is making a request that he's never made before and he's making it immediately after his request to relieve his attorney was denied which causes [the court] to question whether or not this is an unequivocal request. [The court does not] think th at it is. [The court] think[s] it's a result of 'if I can't get rid of this attorney, then I' ll represent myself.' Th at's not unequivocal." The court also found the request was not tim ely made because the case was two and a half years old, Cruz would not be ready for trial on the date set and Cruz required a continuance of undetermined length. B. Analysis Cruz contends the trial court erred in denying his pretrial Faretta motion. We disagree. A criminal defendant has the right un der the Sixth Amendment of the federal Constitution to conduct his or her own defense. ( Faretta , supra , 422 U.S. at p. 819;7 People v. Jenkins (2000) 22 Cal.4th 900, 959.) Accordingly, when a defendant voluntarily and intelligently make s a timely, unequivocal asser tion of the right to proceed pro se, the court must honor that request regardless of how unwise the decision may seem. ( People v. Windham (1977) 19 Cal.3d 121, 127-1 28.) The right to selfrepresentation must be invoked within a reasonable time before the commencement of trial and the trial court should consider th e quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceeding s, and the disruption or delay that might reasonably be expected to follow the granting of such a motion. ( People v. Marshall (1996) 13 Cal.4th 799, 827.) To determine whether the defendant invoked th e right to self-representation, we review the entire record, in cluding facts following the Faretta ruling, de novo. Even if the trial court denied the request for an im proper reason, if the record as a whole establishes the request would properly be denied on other grounds, we will nonetheless affirm the judgment. ( People v. Dent (2003) 30 Cal.4th 213, 218.) 1. Timelineness Requirement
A Faretta motion is timely if made "withi n a reasonable time prior to the commencement of trial." ( People v. Windham , supra , 19 Cal.3d at p. 128; People v. Clark (1992) 3 Cal.4th 41, 98-99.) In Calif ornia, there is no bright-line test for determining the timeliness of a Faretta motion. ( People v. Clark , at p. 99.) However, courts have held that Faretta motions with a request for continuance were untimely when made shortly before commencement of trial, subject to the court's discretion. ( People v.8 Frierson (1991) 53 Cal.3d 730, 740, 742; People v. Burton (1989) 48 Cal.3d 843, 853; People v. Moore (1988) 47 Cal.3d 63, 78-79; People v. Scott (2001) 91 Cal.App.4th 1197, 1205; People v. Hill (1983) 148 Cal.App.3d 744, 757; People v. Ruiz (1983) 142 Cal.App.3d 780, 784-791; People v. Morgan (1980) 101 Cal.App.3d 523, 531; People v. Hall (1978) 87 Cal.App.3d 125, 132.) Here, Cruz made his Faretta motion approximately one month prior to trial, an amount of time that was certainly not untimely on its face. However, Cruz stated that he would not be ready to start trial in one month as he needed time to research. He did not offer the court a specific date when he would be ready and agreed with the court that they would be "starting from scratc h timewise." At that point , the case was two and a half years old. On this record, we conclude the trial court did not err in denying the Faretta motion as granting it would have interfered w ith the orderly administration of justice. 2. Unequivocal Requirement The requirement that a Faretta motion be unequivocal "is necessary in order to protect the courts against clever defendants wh o attempt to build reve rsible error into the record by making an equivocal re quest for self-representation." ( People v. Williams (2003) 110 Cal.App.4th 1577, 15 86.) To determine whether a request was unequivocal, a reviewing court should examin e a defendant's words and condu ct to decide whether that defendant truly desired to give up couns el and represent himself or herself. ( People v. Marshall (1997) 15 Cal.4th 1, 25-26 ( Marshall ).) "Equivocation of the right of selfrepresentation may occur where the defendant tries to manipulate the proceedings by switching between requests for counsel and for self-representation, or where such actions9 are the product of whim or frustration." ( People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1002.)
A Faretta motion made "in passing anger or frustration" or "to frustrate the orderly administration of justice" is not unequivocal and may be denied. ( Marshall , supra , 15 Cal.4th at p. 23.) Moreover, a Faretta motion made immediately following an unsuccessful Marsden motion may be seen as equivoca l if the circumstances show the defendant's true desire was ac tually different representation and not self-representation. (See People v. Valdez (2004) 32 Cal.4th 73, 99 [defendant 's single reference to right of self-representation, made imme diately following denial of Marsden motion, supports conclusion that defendant di d not make an unequivocal Faretta motion]; People v. Scott (2001) 91 Cal.App.4th 1197, 1203-1206 [ Faretta motion was equivocal where defendant made the motion immediately after the trial court denied his Marsden motion and defendant's comments suggested he made the motion because the court would not replace his attorney with a different public defender].) Here, in light of the totality of the circumstances, Cruz's Faretta motion could be seen as equivocal. He sought self-repres entation after the trial court denied his Marsden motion to substitute appointed counsel. It was clear that Cruz wa s frustrated with the court during the Marsden hearing. Even before the c ourt made its ruling, Cruz was perturbed, commenting that th e court had already made up its mind and there was nothing he could do to change it. Cruz's emotional response " 'did not demonstrate to a reasonable certainty that he in fact wi shed to represent himself.' " ( Marshall , supra , 15 Cal.4th at p. 22.)10 Cruz's Lopez waiver does not convince us that his request was unequivocal. Although he completed the waiver, he did so immediately after the court denied his Marsden motion and he expressed frustration with the court. The test of a valid waiver of counsel is not whether the de fendant completed a particular form and received specific advisements; rather, the record as a whole mu st demonstrate that defendant truly desired to represent himself. ( People v. Bloom (1989) 48 Cal.3d 1194, 1225; Marshall , supra , 15 Cal.4th at pp. 25-26.) Cruz had never before requested to represent himself and did not renew the motion at any time after the court denied it. (See People v. Hines (1997) 15 Cal.4th 997, 1028, [ noting that a "self-representation re quest that was an 'impulsive response' to the trial court's denial of th e defendant's motion for substitute counsel and was not renewed at a later court date was not unequivocal"].) Based on the record before us, it appears that Cruz's Faretta motion resulted from his "passing anger or frustration." ( People v. Butler (2009) 47 Cal.4th 814, 825.) Accord ingly, we conclude the trial court did not err in denying Cruz's re quest for self-representation.
II. Intent Requirement Cruz argues his assault conviction violat es due process because the offense does not have a requirement that the defendant know his act could result in death and thus it is an improper strict liability offense. In a rela ted argument, he claims the trial court did not properly instruct the jury because CALCRIM No. 820, the instruction on assault on a child likely to produce great bod ily injury resulting in death, did not require the jury to find that he knew or a reasona ble person would have known hi s act was likely to result in death.11 Cruz was convicted of assault on a child with force likely to produce great bodily injury resulting in death in violation of Penal Code, section 2 37ab, subdivision (a) (section 237ab). That statute provides the following: "Any person who, having the care or custody of a child who is under eight years of age, assaults the ch ild by means of force that to a reasonable person woul d be likely to produce great bodily injury, resulting in the child's death, shall be punished by imprisonment in the state prison fo r 25 years to life." Thus, a violation of section 237 ab requires proof that (1) a person had the care or custody of a child under eight years of age; (2) th at person committed an assault upon the child; (3) the assault was committed by means of force that to a reasonable person would be likely to produce great bodily injury; and (4) th e assault resulted in th e death of the child. ( People v. Albritton (1998) 67 Cal.Ap p.4th 647, 655 ( Albritton ); CALCRIM No. 820.)
In Albritton , supra , 67 Cal.App.4th 647, this Cour t rejected the same argument that Cruz makes here, namely that section 237ab is an unconstitutional strict liability offense. We explained that "[ s]ection 273ab is a general inte nt crime. The mens rea for the crime is willfully assau lting a child under eight year s of age with force that objectively is likely to result in great bodi ly injury—that is, the assault must be intentional." ( Albritton , at p. 658.) We concluded that in order to violate section 273ab, "[o]nly a general criminal intent to comm it the proscribed act—assault on a child under eight years old with force that objectively is likely to result in great bodily injury—is required. Whether the intended act in its na ture is one likely to produce great bodily harm is a question for the jury. It is not required that the actor intend to produce great12 bodily injury or death, nor is it required that he know or shou ld know the act is intrinsically capable of causing such consequences." ( Albritton , at p. 659.) Cruz asserts that due process requires the offense have a mens rea element associated with the death beca use the accused faces the same 25 years to life penalty as first degree murder. It is "immaterial that th e punishment for a viol ation of section 273ab is the same as first degree mu rder. The Legislature exercised its prerogative in selecting the range of punishment, and there is no principle of law that precludes the same punishment for different crimes." ( People v. Norman (2003) 109 Cal.App.4th 221, 228.) Cruz also argues that the sentence imposed by section 237ab violates principles of the merger doctrine because it imposes a life se ntence for an assault. This argument has no merit. "[The merger doctrine] states a felony-murder convicti on cannot be based on an assault resulting in death be cause such a rule 'would effe ctively preclude the jury from considering the issue of mali ce aforethought in all cases wherein homicide has been committed as a result of a felonious assa ult—a category which includes the great majority of all homicides.' [Citation.]" ( People v. Norman , supra, 109 Cal.App.4th at pp. 227-228.) The merger doctrine does not ap ply in this case because section 237ab "is neither a murder statute nor a felony-murder statute." ( Ibid. ) Further, while Cruz was convicted of second degree murder, that conv iction was not based on a felony murder theory; instead, the jury was instructed on express and im plied malice. Accordingly, the merger rule does not apply. Lastly, we reject Cruz's instructiona l error claim. He contends the jury instructions were incomplete because CALC RIM No. 820 did not include a requirement13 that he knew or a reasonable person would have known his act would result in death. As we explained, a violation of section 237ab does not require that the defendant knew his act would result in death. CALCRIM No. 820 pr operly instructs the ju ry that the People must prove the defendant comm itted the assault by means of force that to a reasonable person would be likely to produce great bodily injury. In that regard, the instruction requires the jury to find "[w] hen the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in great bodily injury to the child." (CALCRIM No. 820.) No further knowledge element was required. Thus, Cruz's instructional error claim fails.
III. Equal Protection Cruz argues the statutory penalty of 25 years to life on his assault conviction violates the equal protection clause of the fede ral Constitution. In particular, he contends offenders like him who commit an assault on a child under ei ght years old in their care and custody are similarly situated to offend ers who commit the same act on anybody else yet receive sentences ra nging from probation to fo ur years imprisonment. The Fourteenth Amendment to the Un ited States Constitutio n provides that no state shall "deny to any person within its jurisdiction the equa l protection of the laws." A similar requirement appears in the California Constitution, article I, section 7. "Equal protection applies to ensure that persons simi larly situated with re spect to the legitimate purpose of the law receive like treatment; e qual protection does not require identical treatment." ( People v. Basuta (2001) 94 Cal.Ap p.4th 370, 398 ( Basuta ).)14 " ' " 'The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' [Citations .] This initial inquiry is not whether persons are similarly situated for all purposes, but 'whether they are similarly situated for purposes of the law challenged.' " ' " ( People v. Jeha (2010) 187 Cal.Ap p.4th 1063, 1073, quoting People v. McKee (2010) 47 Cal.4th 1172, 1219.) Even if the challenger can show that the classification differently affect s similarly situated groups, "[i]n ordinary equal protection cases not involving suspect cl assifications or the a lleged infringement of a fundamental interest," the classification is upheld unless it bears no rational relationship to a legitimate state purpose. ( Weber v. City Council (1973) 9 Cal. 3d 950, 958-959.) Cruz recognizes that we rejected a cha llenge to section 273a b on equal protection grounds in Basuta , supra , 94 Cal.App.4th at pp. 398-399, but asserts a similar argument in part to preserve the issue for federal review. In Basuta , we concluded a defendant convicted of violating section 273ab was not similarly situated to other offenders who murder children. ( Basuta , at p. 399.) We explained, "[a] violation of section 273ab requires not only an assault on a child that re sults in death but also that the defendant have care or custody of the child. The el ement of care and custody in section 273ab creates a meaningful distinction between t hose committing that offense and murderers. Those who have the care a nd custody of children not on ly have a particular responsibility and occupy a position of trust, they are also th e persons most likely to kill children." ( Ibid. ) The Basuta court further concluded the rational relationship test15 applied, rather than the stri ct scrutiny test, and "treating murderers and those who violate section 273ab differently bears a rational rela tionship to a legitimat e state interest." ( Ibid. ) Similarly to the defendant in Basuta , Cruz was not denied equal protection because he is not similarly situated with offenders who commit as saults on others not covered by section 273ab. Cruz was entruste d with the care and custody of his victim. This responsibility and position of trust distinguishes his offense from other assault crimes. In accordance with Basuta , Cruz's sentence was rationally related to the legitimate state interest in protecting vu lnerable children from caretakers committing such intentional acts. In sum, we are not persuaded by Cruz's e qual protection challenge.
DISPOSITION The judgment is affirmed.

M C INTYRE, J. WE CONCUR:
M C CONNELL, P. J. NARES, J.