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Filed 1/11/22 P. v. Valdez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Butte)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY VALDEZ,

Defendant and Appellant.

C092883

(Super. Ct. No. 20CF01909)

A jury found defendant Anthony Valdez guilty of making criminal threats. In 

bifurcated proceedings, the trial court found true a prior strike conviction allegation. On 

appeal, defendant claims the trial court erred in denying his motion for self-representation 

under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta). We affirm.

PROCEDURAL BACKGROUND

The facts underlying the charge are not relevant for purposes of this appeal. It 

suffices to say that the prosecution charged defendant with one count of making criminal 
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threats (Pen. Code, § 422, subd. (a))1 and alleged a prior strike conviction (§§ 667, subd. 

(d), 1170.12, subd. (b)). The jury found defendant guilty of the single charge and the trial 

court found true the prior strike allegation. The trial court sentenced defendant to four 

years in prison. 

DISCUSSION 

Defendant contends that he made a timely Faretta motion and the trial court’s 

denial of that request was per se reversible error. Alternatively, defendant argues that if 

the request was untimely, the trial court abused its discretion in denying the request 

without utilizing the factors set forth in People v. Windham (1977) 19 Cal.3d 121. We 

conclude defendant waived any claim to his right to self-representation because his single 

reference to self-representation was equivocal and did not constitute an effective 

invocation of his right.

A. Factual background

Defendant was on postrelease community supervision when the instant offense 

took place. He was arrested and charged in April 2020. During several subsequent 

proceedings, defendant was proactive in understanding the legal aspects of his case. 

Defendant was primarily concerned with exercising his right to a speedy trial. With the 

exception of two weeks in July, he did not enter a time waiver. On multiple occasions, 

defendant expressed concern that his trial had not yet begun and the trial court confirmed 

the date was set within the statutory timeframe. On the date originally set for trial in 

July, the trial court found good cause to continue the trial to September 14, 2020. Trial 

was continued again for one week due to wildfire evacuations. Scheduling trial was also 

made difficult due to the COVID-19 pandemic. 

1 Undesignated statutory references are to the Penal Code.
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Defendant also asked questions about other aspects of his proceedings. At the 

hearing on his violation of postrelease community supervision, he expressed some 

confusion regarding the proceedings. Defense counsel addressed his concerns. 

Defendant also asked several questions about the trial on his prior conviction, sentencing 

and credits, and his right to testify, which defense counsel and the trial court addressed. 

The day trial was scheduled to begin, the parties answered ready and discussed the 

jury selection process. The following colloquy took place:

“DEFENDANT [ ]: Your Honor, can I do this myself? Can I go pro bono right 

now?

“THE COURT: It’s too late for that, Sir.

“DEFENDANT [ ]: Why?

“THE COURT: It’s too late for that. That is something you should have brought 

up long before this morning.

“DEFENDANT [ ]: Why?

“THE COURT: I’m not going to entertain a further motion at this time because 

it’s too late and will cause delay.” 

The trial court then ruled on motions in limine. After a brief recess, the trial court 

commented, “I did also want to note that [defendant] made a comment about wanting to 

do this himself. I reviewed the laws, and the Court is going to find that any request to 

represent himself at this time is not timely. We are here scheduled. I have jurors coming 

in. With COVID-19 it’s been very difficult. He’s had plenty of opportunities to make 

that request previously and did not do so. So because of the cost of delay that it would 

cost if the Court were to entertain that, that is the reason the Court is going to find it 

untimely. Okay.” 

The parties selected a jury, and the evidence portion of trial began the next 

morning. 
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B. Analysis

In Faretta, supra, 422 U.S. 806, the United States Supreme Court made clear that 

a criminal defendant has a federal constitutional right to represent himself. (Id. at pp. 

835-836.) A trial court must grant a defendant’s request for self-representation if the 

request is timely and the defendant makes his request unequivocally, voluntarily, 

knowingly, and intelligently. (People v. Windham, supra, 19 Cal.3d at pp. 127-128.) 

The “ ‘ “right of self-representation is waived unless defendants articulately and 

unmistakably demand to proceed pro se.” ’ ” (People v. Danks (2004) 32 Cal.4th 269, 

295, italics omitted, quoting People v. Marshall (1997) 15 Cal.4th 1, 20-21 (Marshall).) 

Our Supreme Court has expressed concern that some assertions of the right of selfrepresentation may be a vehicle for manipulation and abuse. Both the stability of 

judgments and the defendant’s constitutional right to the effective assistance of counsel is 

at stake, requiring a determination that defendant truly desires to represent himself. 

(Marshall, supra, 15 Cal.4th at pp. 22-23.) Other courts have determined that a “motion 

made out of a temporary whim, or out of annoyance or frustration, is not unequivocal—

even if the defendant has said he or she seeks self-representation.” (Id. at p. 21, citing 

Reese v. Nix (8th Cir.1991) 942 F.2d 1276, 1281; and see, e.g., Reese, supra, at p. 1281

[defendant’s statement, “ ‘Well I don’t want no counsel then,’ ” was deemed a mere 

impulsive response to the trial court’s denial of a request for new counsel].) As one court 

stated, a court “properly may deny a request for self-representation that is a ‘momentary 

caprice or the result of thinking out loud.’ ” (Jackson v. Ylst (9th Cir.1990) 921 F.2d 882, 

888.) 

Courts must draw every inference against supposing that the defendant wishes to 

waive the right to counsel. (Marshall, supra, 15 Cal.4th at p. 23, citing Brewer v. 

Williams (1977) 430 U.S. 387, 404 [51 L.Ed.2d 424, 404].) In light of this, a court faced 

with a motion for self-representation should evaluate not only whether the defendant has 

stated the motion clearly, but also evaluate the defendant’s overall conduct. Conduct or 
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words “reflecting ambivalence about self-representation may support the court’s decision

to deny the defendant’s motion. A motion for self-representation made in passing anger 

or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate 

the orderly administration of justice may be denied.” (Marshall, at p. 23.)

On review, “if the record as a whole establishes defendant’s request was 

nonetheless properly denied on other grounds, we would uphold the trial court’s ruling.” 

(People v. Dent (2003) 30 Cal.4th 213, 218; see also People v. Zapien (1993) 4 Cal.4th 

929, 976 [appellate court reviews trial court’s ruling, not its rationale].) “In determining 

on appeal whether the defendant invoked the right to self-representation, we examine the 

entire record de novo. (See Marshall[, supra, 15 Cal.4th] at pp. 24-25.)” (People v. 

Dent, supra, 30 Cal.4th at p. 218.) Even if the court treated defendant’s statement as an 

assertion of his right to represent himself, a reviewing court is not bound by such a 

determination. (People v. Valdez (2004) 32 Cal.4th 73, 99.)

In this case, we conclude that defendant did not, unequivocally, seek to represent 

himself and defendant did not make a Faretta motion. Defendant’s single reference to 

self-representation was fleeting and was made in a context that did not lend gravity to the 

reference. As the parties discussed the jury selection process, defendant interjected a 

wholly unrelated question, “Your Honor, can I do this myself? Can I go pro bono right 

now?” This inquiry was untethered to any reason for the question. Defendant never 

previously expressed any desire to proceed without counsel. Nor was there any 

indication anything was amiss in the attorney-client relationship.2 Under these 

circumstances, the question was more inquiry than a clearly stated, unambiguous motion 

for self-representation. (Cf. People v. Danks, supra, 32 Cal.4th at p. 296 [defendant’s 

2 Although defendant had previously expressed frustration at unforeseen delays in 

his trial, this frustration was never directed at counsel and the problem was resolved as 

his trial was poised to start with jury selection that same day.
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question, “ ‘What about going pro. per.?’ ” at the end of a hearing discussing a 

continuance was not a clear unequivocal request for self-representation];see also People 

v. Marlow (2004) 34 Cal.4th 131, 147 [defendant’s question, “ ‘Is it possible that I just go 

pro per in my own defense and have someone appointed as co-counsel?’ ”—was a 

request for information, not a Faretta motion, and the trial court’s denial did not convert 

defendant’s inquiry into a motion].) Indeed, such an inquiry was not out of character for 

defendant. Over the course of the proceedings, defendant made several requests for 

clarification on legal issues in his case; there is no indication that this question was not 

asked in a similar vein.

As further support for the conclusion that defendant’s reference to selfrepresentation was equivocal, defendant did not renew a request for self-representation.

(See People v. Barnett (1998) 17 Cal.4th 1044, 1087 [defendant’s single reference to 

“ ‘mak[ing] a motion to proceed pro se’ ” did not constitute an unequivocal assertion of 

the right to self-representation when he did not return to the issue with an actual request 

to represent himself and instead requested new counsel].) Nor was he foreclosed from 

doing so. Although the trial court initially stated it was “not going to entertain a further 

motion at this time because it’s too late and will cause delay,” the trial court sua sponte 

returned to the topic and further explained the ruling. This return to the subject provided 

defendant the opportunity to renew his request, and “would have been an exceptionally 

opportune time to notify the court [he did not want his attorney to continue to represent 

him]. (Cf. People v. Kenner (1990) 223 Cal.App.3d 56, 62 [‘Defendants who sincerely 

seek to represent themselves have a responsibility to speak up’].)” (People v. Fedalizo

(2016) 246 Cal.App.4th 98, 105.) Defendant did not do so. Nor did he object to the trial 

court’s explanation or reasons for the ruling. Instead, he proceeded to trial with the 

assistance of counsel. Under these circumstances, defendant’s conduct demonstrates that 

his reference to self-representation was equivocal and the trial court had no duty to 

inquire as to whether defendant wished to invoke the right to self-representation. 
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(See Marshall, supra, 15 Cal.4th at p. 23 [outlining a trial court’s duties when a motion is 

made, not what duty the court has to determine whether a motion is being made].) As a 

result, defendant waived his right to self-representation. 

DISPOSITION

The judgment is affirmed.

 KRAUSE , J.

We concur:

 HULL , Acting P. J.

 ROBIE , J.