Filed 6/25/13 P. v. Nichols CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. ERIC LAVELLE NICHOLS, Defendant and Appellant. F063374 (Super. Ct. No. BF132222A)


### OPINION

APPEAL from a judgment of the Superi or Court of Kern County. John R. Brownlee, Judge. Carol A. Navone, under appointment by the Court of Appeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, A ssistant Attorney Gene ral, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-2 Defendant appeals his conviction of evad ing a police officer, contending he was improperly denied a continuance to prepare fo r trial after his motion to represent himself was granted. He argues the failure to gr ant a continuance violated his right to due process of law. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND At about 11:30 p.m., a California Highway Pa trol (CHP) officer in a marked patrol car observed a black SUV speeding down a city street. He saw only one occupant in the SUV, and had the impression it was a man. The officer follo wed the SUV, which continued at high speed even after the officer turned on the patrol vehicle’s red lights and siren. The SUV went through the parking lo t of an apartment comp lex, then back out onto the street, where it ran a stop sign and a red traffic light. The officer lost sight of the
vehicle for a few seconds when it went around a corner; when he turn ed the same corner, he spotted the disabled SUV where it had crashed into the curb and the wheel had
buckled under. The driver’s door was open, but there was no one inside and the CHP
officer saw no one in the vici nity. Inside the SUV, the officer found a cell phone displaying defendant’s first na me and a digital camera contai ning pictures of defendant
and the SUV. About the same time, residents in the area we re on their front porch when
defendant came from the side of the house and seated himself on a chair on the porch. The residents called the police over and they arrested defendant. Defendant was charged with one felony count of evading a peace officer by driving in willful or wanton di sregard for the safety of persons or property, in violation of
Vehicle Code section 2800.2. Defendant pled not guilty, and trial was set for August 9, 2010. On the trial date, defendant indicate d he intended to call as a witness Lajena Bolton, who would take responsibility for drivin g the vehicle on the night in issue. The court appointed counsel to advise her and Bolton chose to invoke her Fifth Amendment right against self-incrimination. While the court was still hearing motions in limine, it3 granted a continuance b ecause of a dispute about producti on of recordings of phone calls
defendant made to Bolton while he was in jail, which defendant asserted contained exculpatory information. On September 23, 2010, the trial c ourt granted defendant’s motion for appointment of a new attorn ey to represent him. ( Marsden 1 motion.) The trial was continued twice, and then trailed to March 21, 2011. On that date, the trial court denied
defense counsel’s motion to with draw as counsel based on an asserted conflict of interest. On March 23, 2011, defendant made another Marsden motion, which the trial court denied. On March 24, 2011, after defens e counsel indicated he was withdrawing a motion in limine to be permitted to present Bolton’s statements th rough the testimony of a defense investigator because Bolton was unava ilable as a witness, de fendant asserted he
wished to make a motion to re present himself at trial. ( Faretta 2 motion.) Defendant assured the court that he was ready to pro ceed with trial that day. The trial court explained the hazards of sel f-representation and warned th at defendant would not be allowed to change his mind and obtain a cont inuance to obtain an attorney in the middle
of trial. Later, when the trial court asked what witnesses defendant would present and explained they would need to be ready when the prosecution rested, defendant protested that he “just got this case today.” The cour t reminded defendant he had said he was ready to go forward, and advised that he would not be granted a contin uance because he was unprepared. The People played some of the recordings of defendant’s telephone
conversations with Bolton for th e jury. In the excerpts presen ted, defendant seemed to be coaching Bolton to tell a fabricated story, firs t that “Felicia” had been driving the vehicle

1 People v. Marsden (1970) 2 Cal.3d 118 ( Marsden ).
2 Faretta v. California (1975) 422 U.S. 806 ( Faretta ).4 that evaded police, with defe ndant as a passenger, and later that Bolton herself had been driving. At one point in the recordings, Bolton reported she had spoken with defendant’s attorney and had told him what they had “been rehear sing.” Apparently, Bolton contacted the investigating CHP officer and the deputy district attorney and admitted driving the vehicle at the time it evaded the pursui ng officer. The court granted the People’s motion to exclude as hearsay evidence of Bolton’s
statements to the defense inves tigator, in which she claimed sh e had been driving. Bolton did not appear for trial and di d not testify; defendant presen ted no defense evidence and was convicted. He appeals, contending the tr ial court violated his constitutional right to due process by failing to grant him a reasonable c ontinuance to prepare his case for trial.
DISCUSSION
“The Sixth and Fourteen th Amendments of our Constitution guarantee that a person brought to trial in any state or federa l court must be afford ed the right to the assistance of counsel before he can be validly convicted and punished by imprisonment.” ( Faretta, supra, 422 U.S. at p. 807.) A criminal defe ndant also has a right to refuse such
assistance and conduct his or her own defens e, “providing he or she knowingly and intelligently waives the right to counsel [citation] and ‘is able and willing to abide by the rules of procedure and courtroo m protocol.’ [Citation.]” ( People v. Bradford (1997) 15 Cal.4th 1229, 1363-1364 ( Bradford ).) “Although a defendant ne ed not himself have the skill and experience of a lawyer in order co mpetently and intelligen tly to choose selfrepresentation, he should be made aware ofthe dangers and disadvantages of selfrepresentation, so that the re cord will establish that ‘he kn ows what he is doing and his choice is made with eyes open.’ [Citation.]” ( Faretta, supra , at p. 835.) In order to invoke the constitutional right of self-representation, the defendant “must make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial. [Cita tions.] When a motion for self-representation is not made5 in a timely fashion prior to trial, self-repres entation no longer is a matter of right but is subject to the trial court’s discretion. [Citations.]” ( Bradford, supra, 15 Cal.4th at p. 1365.) In exercising that discretion, the court should consider such factors as “the quality of counsel’s representa tion of the defendant, the defe ndant’s prior proclivity to substitute counsel, the reasons for the request , the length and stage of the proceedings, and the disruption or delay wh ich might reasonably be expect ed to follow the granting of such a motion.” ( People v. Windham (1977) 19 Cal.3d 121, 128 ( Windham ).) Whether to grant a continuance of trial is a matter within the broad discretion of the trial court. ( People v. Jenkins (2000) 22 Cal. 4th 900, 1037 ( Jenkins ).) It is within the trial court’s discretion to deny a continuance when it reasonably believes the request for a continuance is based on a desire to delay the proceedings for the defendant’s benefit. ( Id

. at p. 1039.) There is no violation of a defendant’s rights when his Faretta motion is made on the eve of trial and he is given the choice to proceed with counsel or to proceed without counsel on condition he proceed immediately. In People v. Clark (1992) 3 Cal.4th 41,
the defendant was convicted of six counts of first degree murder with special
circumstances and was sentenced to death. Wh ile the court was hearing the final pretrial motions, the defendant purported to disc harge one of his two attorneys. ( Id . at p. 90.) Subsequently, he made an oral Faretta motion, which was denied as untimely. ( Clark, at pp. 91-92.) On the day set for opening statements, the defendant renewed his Faretta motion, asking to represent himself with his se cond attorney as co-counsel, but stating he was not ready for trial. ( Clark, at p. 92.) Because he was not ready, the trial court denied the motion. ( Ibid .) Twice more in the next few days , the defendant renewed his motion, but sought appointment of new co-counsel. ( Id . at p. 93.) The trial court stated it would
consider the Faretta motion, but, if granted, the defendant would represent himself without the assistance of counsel. ( Clark, at p. 93.) The defendant stated he6 “‘absolutely’” wanted to represent himself. ( Ibid .) The trial court advised the defendant of the rights, responsibilities, and risks invol ved in self-representation, then found a knowing and intelligent waiver and permitted th e defendant to represent himself; it kept his appointed attorneys as standby counsel. ( Ibid .) Later, due to his disruptive conduct during trial, the trial court revoked the de fendant’s in propria persona status and reappointed counsel. ( Id . at pp. 94-96.) On appeal, the defendant cha llenged the granting of his Faretta motion. In addition to concluding “t hat defendant may not be heard to argue on appeal that his own motion should not have been granted” ( Clark, supra , 3 Cal.4th at pp. 109, 110), the court rejected the defendant’s contention “that th e trial court improperly conditioned its grant
of his Faretta motion on waiver of any necessary continuance.” ( Ibid. ) The court distinguished earlier cases indicating a defend ant whose motion for self-representation is granted should be given a reasonable time to prepare. “Although a necessary continuance mustbe granted if a motion for selfrepresentation is granted, it is al so established that a midtrial Faretta motion may be denied on the ground th at delay or a continuance would be required. [Citations.] Unlike the trial court in Bigelow, supra, 37 Cal.3d 731, this trial court made clear its intent to deny the Faretta motion as untimely if a continuance would be nece ssary. It had in fact denied other Faretta motions on this basis. The Faretta motion was ultimately granted only when defendant expressly represen ted he was able to proceed without a continuance.” ( Clark, supra , 3 Cal.4th at p. 110.)
In Jenkins , the court followed the Clark decision. There, the defendant was sentenced to death after being convicted of first degree murder and other offenses. On appeal, he contended his request for a continuance during th e penalty phase should have been granted after he was permitted to repr esent himself with the help of advisory counsel. ( Jenkins, supra, 22 Cal.4th at pp. 1037-1038 .) When he sought selfrepresentation, the defendant “angrily rejected counsel’s claim that he was unprepared.” ( Id . at p. 1038.) The trial court warned the defendant a request for a continuance would7 constitute grounds for denying self-representa tion, and the “defendant accepted pro se status on the understanding that no additional time would be granted.” ( Ibid .) The trial court “was within its discretion in denying the requested continuances on the ground the court reasonably believed the requests were based upon a desire to delay the proceedings in an effort to affect the composition of the jury or to cause a mistrial.” ( Ibid .) The court rejected the defendant’s c ontention that, once he was permitted to represent himself, the denial of a continuan ce to prepare for trial deprived him of due process. The court stated:
“We observed in People v. Clark , supra , 3 Cal.4th 41, that ‘a necessary continuance must be granted if a motion for self-representation is granted.’ [Citation.] On the other hand, in the Clark case we also stated that ‘it also is established that a midtrial Faretta motion may be denied on the ground that delay or a continuanc e would be required,’ and sanctioned the trial court’s decision to condition the granting of the right of selfrepresentation on defendant’s waiv er of a continuance.... [¶] ... [¶] “No denial of due process appears in the court’s refusal to grant defendant’s motions for continuance. ‘[I ]t is not every denial of a request for more time that violates due pro cess even if the party fails to offer evidence or is compelled to defend without counsel.’ [Citation.] Instead, ‘[t]he answer must be fo und in the circumstances present in every case, particularly in the reasons presented to the trial judge ....’ [Citation.] Even in a capital case, if the de fendant cannot show he or she has been diligent in securing the attendance of witnesses, or that specific witnesses exist who would present material evidence, ‘[g]i ven the deference necessarily due a state trial judge in regard to the de nial or granting of continuances,’ the court’s ruling denying a continuance does not support a claim of error under the federal Constitution. [Citations.]” ( Jenkins, supra , 22 Cal.4th at pp. 1039-1040.)
In People v. Valdez (2004) 32 Cal.4th 73 ( Valdez ), the defendant was convicted of murder and other offenses, and was sentenced to death. Prior to trial, he made two
Marsden motions and two Faretta motions, all of which were denied. On appeal, he
contended the denial of his Faretta motions violated his cons titutional right to represent
himself. The defendant’s second Faretta motion was made immediately prior to jury8 selection. ( Valdez, supra, 32 Cal.4th at p. 101.) The defe ndant expressed his belief that he could do a better job if he did some investigation and st ated he would like to “go pro per.” ( Ibid .) He told the court he would not be pr epared to go to trial that day if his request were granted. ( Ibid .) The trial court indicated it would not grant the request, because it was made to delay the trial; howeve r, it told the defendant he could proceed in propria persona that day, with standby counsel. ( Id . at pp. 101-102.) On appeal, the defendant argued the motion was timely beca use it was made at the first available opportunity. The court concluded it was un timely because it was made moments before jury selection was set to be gin and there were earlier opportunities to make it. ( Id . at p. 102.) The unconditional right of self-repre sentation is required to be invoked within a reasonable time prior to trial, in order to pr event misuse of the mo tion to unjustifiably delay the trial or obstruct the orde rly administration of justice. ( Ibid .) “‘If the motion is untimely—i.e., not asserted within a reasonabl e time prior to trial—the defendant has the burden of justifying the delay.’ [Citation.]” ( Ibid .) When a Faretta motion is untimely, self-representation is not a matte r of right, but is subject to the trial court’s discretion. ( Valdez, at p. 103.) The trial court consider ed the proper factors in exercising its
discretion. The court concluded:
“The trial court found the Faretta motion was not made in good faith, but made ‘merely for the purpos es of obtaining a continuance’ and denied the motion. It is clear from th e record that the trial court made an appropriate inquiry, and based on that inquiry denied defendant’s Faretta motion. But in response to defend ant’s insistence that he had a constitutional right to proceed in propria persona, the court indicated that it would allow defendant to represent hims elf if he was able to proceed with the trial without delay. It did not, however, actually grant the Faretta motion. “‘Although a necessary continuance must be granted if a motion for self-representation is granted, it is also established that a midtrial Faretta motion may be denied on the ground th at delay or a continuance would be required.’ [Citation.] Thus, the c ourt acted within its discretion in9 concluding that defendant could represent himself only if he was ready to proceed to trial without delay.” ( Valdez, supra , 32 Cal.4th at p. 103.) Thus, in recent cases, 3 the California Supreme Court ha s found it is not a violation of due process to grant a motion for self-repr esentation made during or on the eve of trial without granting defendant a co ntinuance to prepare for tria l. The trial court may deny such a motion if it would require a continua nce, or it may grant the motion only if the defendant represents he is ready to proceed to trial as scheduled.
Defendant made a successful Marsden motion in September 2010, which resulted in several months’ delay of the trial while the new attorney prep ared. On March 10, 2011, 11 days before trial was scheduled to begin, defendant’s second attorney filed a motion to withdraw as counsel, citing a conf lict of interest. That motion was heard on March 21, 2011, the day set for trial; defendant assured the court then that he still wanted his attorney to represent him, in spite of th e conflict cited by counsel as the basis for the
motion. The motion to withdraw was denied . Two days later, defendant requested a
Marsden hearing; the hearing was held and th e motion was denied. The trial court
considered it a rehash of defense counsel’s motion to withdraw. The next day, when the court began hearin g the motions in limine, defendant made

a Faretta motion. After initially sta ting he wanted to make a Faretta motion because his attorney was not doing what he asked him to do, defendant stated he was claiming
ineffective assistance of counsel. The trial court stated that would be a Marsden motion,
and reminded defendant his Marsden motion had been heard and de nied the previous day.

3 Defendant argues that, when a defendant exercises his or he r right of self -representation on the eve of trial and the court grants the mo tion, the defendant must be granted a reasonable continuance to prepare for trial or due process is violated. The cas es he relies on in support of that proposition, however, predate Clark , Jenkins , and Valdez . (See People v. Maddox (1967) 67 Cal.2d 647; People v. Wilkins (1990) 225 Cal.App.3d 299; People v. Hill (1983) 148 Cal.App.3d 744; People v. Cruz (1978) 83 Cal.App.3d 308.)10 The court proceeded to warn de fendant of the dangers of sel f-representation and to try to
demonstrate to him that he did not unde rstand the legal procedures and concepts necessary to conduct his own defense. It a dvised defendant that th e evidence he wished to put on was unlikely to be allowed in. Defendant complained that his attorney had told him the previous day that the attorney would not put on any witnesses, w ould not present defendant’s evidence, and
believed defendant was guilty. Defendant also compla ined that his attorney had
withdrawn defendant’s motion in limine No. 20, which sought admission of Bolton’s statements to a defense investigator, becaus e Bolton was unavailable as a witness, having
indicated she would invoke her Fifth Amen dment right against self-incrimination. Further, defendant stated he was not comfor table in the courtroom where the judge had heard his attorney’s motion to withdraw and his own Marsden motion and had denied both; he asserted he felt he wo uld not be treated fa irly and he had aske d his attorney to
find another courtroom. Defendant assured the court he was prepar ed to defend himself that day, but the trial court expressed doubt. The trial court gave defendant a Faretta waiver form to fill out if he still wished to represent himself. When defendant return ed the form, he had answered “no” to this question: “You have st ated to the Court that you do not wish to be represented by an attorney, ev en though one would be provide d to you at no expense if you cannot afford one, and that you wish to re present yourself. In ma king this decision to act as your own attorney, you have cons idered and understand the following....”
Defendant indicated he understood the followi ng 15 items, but he did not agree that he did not want an attorney to re present him. He asserted he did want an attorney, just not the one currently appointed to him. The trial court again reminded defendant his
Marsden motion had been denied, and stated it w ould not be relitigated. It then gave
defendant a choice:11 “THE COURT: ... Now, do you want to proceed with him as your lawyer or do you want to represent yourself? [¶] If you do want to represent yourself, you need to tell me that yo u understand all those 1 through 15, and I’ll get [the attorney] off the case, and you can represent yourself. I’ll get a [jury] panel over here and we can get started. [¶] If you don’t want to represent yourself, you tell me. We’ll leave [the attorney]. We’ll get a panel over here, and we’ll get started. Either way, I need a decision.” Defendant stated he wished to represent himself. He asked further questions about filling out the waiver form, and the court e xpressed its opinion de fendant was “fooling around and messing with the Court and ... wa sting the Court’s time.” The trial court relieved defendant’s attorney. After the atto rney turned over his materials to defendant, the trial court proceeded to h ear the motions in limine. In subsequent discussions with the trial court, defendant indicated he wished to play some of the CD recordings of his ja ilhouse telephone conversations for the jury, because he believed they contained exculpatory information. He did not have the CDs or transcripts of them in his possession, howe ver, and he had not yet listened to them. 4 Defendant knew at the time he chose to repres ent himself that the CDs were part of the defense he wished to present; he also knew he had not listened to the CDs. Nonetheless he assured the trial court he was ready to pr oceed with trial that day, and chose selfrepresentation knowing the trial would no t be delayed if he was unprepared.
The cases indicate a trial court has disc retion to grant or deny a motion for selfrepresentation that is untimely or made for purposes of delay. Defendant’s motion was made three days after the date set for tria l, while the court was addressing motions in limine. Defendant argues his motion was not untimely because he made it at the first opportunity after he learned his attorney w ould not present the evid ence he wished to present in his defense. De fendant, however, gave multiple reasons for not wishing to

4 Defendant’s attorney did not have the CDs w ith him when he was relieved and turned his other materials over to defendant; he gave de fendant the CDs and the transcripts in his possession the following day.12 have his attorney represent him. His moti on to have new counsel appointed had been heard and denied the previous day. Defendant vacillated betw een asserting he wished to represent himself and stating he wished to be represented by counsel, but not the counsel assigned to him. Defendant seemed more interested in relitigating his unsuccessful
Marsden motion and trying to maneuver the tr ial court into appointing a different attorney, than in exercising hi s right to represent himself at trial. The circumstances justified the trial court’s conclusion defendant wa s attempting to obstruct and delay trial.
Defendant also contends the trial court did not expressly condition the grant of the
Faretta motion on defendant proceed ing without a continuance. The choice the trial court gave defendant was clear, however: He could represent himself and proceed to trial that day, or he could continue to be represented by his appo inted attorney and proceed to trial that day. This was the same choice given to the defendants in Clark , Jenkins , and Valdez . It was clear the trial court intended to proceed with the tria l that day regardless of defendant’s choice. Defendant stated multip le times that he was prepared and ready to begin trial that day. He chose to repres ent himself. Defendant cannot now complain because he regrets the choice he made.
The trial court did not abuse its discre tion when it granted defendant’s motion for self-representation only on c ondition he proceed without delay. After granting the motion based on defendant’s representation he was ready for trial and that he wished to represent himself and go forward that day, th e trial court did not abuse its discretion by requiring defendant to proceed without a continuance. Under the circumstances, proceeding without granting defe ndant a continuance was not a violation of due process.13 DISPOSITION The judgment is affirmed.

_____________________ HILL, P. J. WE CONCUR:

_____________________ WISEMAN, J.

_____________________ LEVY, J.