Filed 5/11/16 P. v. Castillo CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

CESAR LUCAS CASTILLO,

Defendant and Appellant.

 B259049

 (Los Angeles County

 Super. Ct. No. BA409987)

APPEAL from a judgment of the Superior Court of Los Angeles County. William 

N. Sterling, Judge. Affirmed.

Eileen Manning-Villar, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Ryan 

M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
2

Cesar Lucas Castillo (defendant) appeals from a final judgment entered after his 

conviction by jury of two counts of second degree robbery (Pen. Code, § 211)

1 and 

related enhancements. We affirm the judgment.

CONTENTIONS

Defendant argues that the trial court denied his right to due process of law under 

the Fourteenth Amendment to the United States Constitution by instructing the jury with 

CALCRIM No. 315, which advises jurors on how to evaluate eyewitness identifications. 

Defendant argues that the instruction ratifies the common misperception that a witness’s 

certainty correlates with his or her accuracy. Because the case rested substantially on 

eyewitness identification, defendant argues that the error requires reversal.

Defendant further argues that the trial court erred in denying his motion to waive 

counsel and represent himself. Defendant argues that this error deprived him of his rights 

under the Sixth and Fourteenth Amendments to the United States Constitution.

FACTUAL BACKGROUND

The Gomez incident (count 2)

Fernando Gomez (Gomez) listed his Galaxy S3 cellular telephone for sale on 

Craigslist. The telephone number associated with the cellular phone was (213) 300-7221. 

On April 7, 2013, at 8:00 p.m., Gomez and his wife Elsita Gomez (Mrs. Gomez) drove to 

Immanuel Presbyterian Church in Los Angeles to meet a man interested in buying the 

cellular telephone. They did not see anyone, so they drove to a gas station. A short time 

later, a man called and indicated that he was at the church.

Gomez parked his truck at the entrance of the church’s parking lot. He stepped 

out of the truck to meet a man, whom both Gomez and his wife identified in court as 

defendant. After defendant and Gomez spoke briefly about the phone, defendant pulled a 

silver revolver from his waistband and pointed it at Gomez’s chest. Defendant demanded 

that Gomez give him both the Galaxy S3 and another cellular telephone that Gomez was 

carrying. Mrs. Gomez stepped out of the truck and told Gomez to give defendant the 

 

1 All further statutory references are to the Penal Code unless otherwise noted.
3

phones. Defendant grabbed both phones, put them in his pocket, and walked away. 

Gomez called the police.

The Park incident (count 3)

Jinyi Park (Park) had advertised her Samsung Galaxy Note 2 for sale on Craigslist. 

On April 8, 2013, at approximately 5:00 p.m., Park went to Jon’s Market to meet a man 

interested in buying the cellular phone. The man had been texting Park about her phone 

from the number (213) 300-7221. After failing to connect at the market, the man asked 

Park to meet him at the parking lot across the street.

Park drove over to the parking lot and parked next to the only person she saw 

there. As she stepped out of her car, the man, whom Park identified as defendant in 

court, asked to see the phone. Park handed the phone in its box to defendant. After 

briefly examining the phone, defendant lifted his shirt to reveal a gun in his waistband. 

Defendant told Park he had a gun and instructed her to leave. Park panicked and froze, 

and defendant ran away with the phone. Park called the police.

The Sanchez incident (count 4)

On April 7, 2013, Hugo Sanchez (Sanchez) exchanged texts with an individual 

selling a Galaxy S3 mobile phone on Craigslist. The seller’s texting number included an 

area code of “213” and the number “300.” The parties were not able to arrange a meeting 

that evening.

The following day, Sanchez received texts regarding the same phone from a 

different number. This phone had a “708” area code. When Sanchez tried to text to the 

“213-300” number, he received a message that the number had been disconnected. The 

parties made plans to meet later that evening in the Koreatown section of Los Angeles. 

At about 10:50 p.m., while Sanchez waited outside the apartment building where the 

parties had agreed to meet, a Hispanic man in his late 20’s approached him. The man 

was 5’8” or 5’9”, weighed between 160 and 170 pounds, had a shaved head, and wore a 

black hoodie with blue jeans.

Sanchez asked the man if he was selling a phone. The man said that he was and 

handed Sanchez a white Galaxy S3. When Sanchez asked if the man had paid the bill, 
4

the man said “all right, give me the money.” The man raised the bottom of his hoodie 

and pulled a gun out of the waistband of his pants, showing it to Sanchez. The man 

proceeded to pat down the pockets of Sanchez’s clothing, taking his wallet and keys. 

After throwing the keys into the street, the man ran off with Sanchez’s wallet and cash.

Investigation

On April 9, 2013, at approximately 5:00 p.m., Los Angeles Police Detectives 

Webster Wong, Thomas Penson, and Ron Kim went to the apartment of defendant’s 

girlfriend, Blanca Ponce. Detective Penson detained defendant in front of the apartment

and recovered a Nokia cellular telephone from defendant’s pants pocket. During a search 

of Ponce’s apartment, officers recovered a box for a Samsung Galaxy Note 2 containing 

international adaptors. Defendant was arrested.

Detective Wong returned the Nokia phone to Mrs. Gomez, who identified the 

phone as belonging to her husband. Mrs. Gomez was able to unlock the phone and 

indicated that the email address located in the phone belonged to her. Mrs. Gomez 

identified defendant from a six-pack photographic lineup. She circled defendant’s 

photograph and wrote: “This guy looks like the one from last night” and then wrote “But 

I’m not sure.” Gomez was not able to identify defendant in a six-pack photographic 

lineup.

Detective Wong showed the box for the Samsung Galaxy Note 2 to Park. Park 

identified the item as hers because her box contained international adaptors. Park was 

unable to identify defendant in a six-pack photographic lineup. She indicated that 

defendant was not among the pictures.

PROCEDURAL HISTORY

Defendant was charged with four counts of second degree robbery (§ 211). It was 

further alleged as to all counts that he personally used a dangerous and deadly weapon 

(§ 12022, subd. (b)(1)), and personally used a firearm (§ 12022.53, subd. (b)). In 

addition, it was alleged as to all counts that defendant suffered three prior prison terms 

(§ 667.5, subd. (b)). Defendant pleaded not guilty and denied the special allegations.
5

Preliminary hearing

At the preliminary hearing, Mrs. Gomez identified defendant as the man who 

robbed her husband. She told the court that when she made the identification in the 

photographic lineup, she was not sure:

“I wasn’t sure enough if it was him, but I circle it because I don’t 

know. Something was telling me, like, he looked like it was him. I don’t 

know. It looked like him. I was picturing him skinnier like he looks now 

and with the glasses on and his little moustache that he had. Everything 

matched. Everything was matching.”

When she identified defendant at the preliminary hearing, Mrs. Gomez said she 

knew it was him because “I will never forget his face” and “I remember how he looked 

and everything.” She admitted that somebody had told her that the person who had been 

found with her husband’s phone would be in court that day and that she would be asked 

to identify him.

Gomez also identified defendant as the perpetrator at the preliminary hearing. He 

asked “[t]he guy with the jail outfit” to stand up so that he could get a better look. Then 

he stated that he thought defendant was the person who robbed him. During crossexamination, Gomez stated that the suspect had been wearing a gray shirt and blue jeans, 

although he had told police that the shirt was yellow. The robber also had a moustache 

and had put on glasses at the end of the robbery. Gomez rated his certainty about his 

identification of defendant as eight on a scale of ten, and said he told police that he had 

seen defendant’s photo in the six-pack lineup.

At the preliminary hearing, Park stated that defendant looked like the man who 

had robbed her. She based her identification on the clothing defendant was wearing, as 

well as his hairstyle, round face, moustache and the way his body was shaped. Park 

testified that she did not know that the accused would be in court that day, and no one 

had told her that defendant was the robber. However, once she saw him standing with his 

attorney, she knew defendant was the person who had been charged with the offense.
6

Sanchez did not identify defendant at the preliminary hearing. He described the 

man who robbed him as 5’6” or 5’7,” kind of chubby, age 26 to 28 years, Hispanic, 

wearing a “Bruno Mars” style hat. When asked if he saw anyone at the hearing who 

looked like his assailant, Sanchez looked around for about 17 seconds and then stated that 

he did not see the person who took his wallet and cash.

Defendant’s pretrial motions

Defendant made a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 

(Marsden) for substitution of counsel due to inadequate representation. On September 

16, 2013, the motion was heard and denied.

On November 5, 2013, defendant made a motion pursuant to Faretta v. California 

(1975) 422 U.S. 806 (Faretta) to proceed without counsel. After inquiring of defendant

whether he would be ready to go to trial within the next eight days, the court found the 

request untimely and denied the motion.

Trial

Just prior to calling in prospective jurors for voir dire, the court granted the 

defense’s motion to dismiss count 1.

Mrs. Gomez identified defendant at trial as the person who had robbed her 

husband. During cross-examination, she admitted the incident occurred quickly and that 

she focused much of her attention on the assailant’s gun. She told police shortly after the 

incident that the robber had been wearing blue jeans and a long-sleeved gray shirt as well 

as some clear-lensed glasses. When prompted by defense counsel, she also recounted 

that she had previously described the shirt as having a picture of a tiger on it. Mrs. 

Gomez estimated that the robber was 5’4” or 5’5” and characterized him as “skinny” not 

“fat,” “like 150 . . . 160.”

Mrs. Gomez also told the jury that she was “positive” the person she identified in 

the six-pack photographic lineup was the person who committed the robbery. Yet when 

confronted with the uncertainty she had expressed at the photographic lineup, she 

maintained she had been lying then, but now was telling the truth.
7

Gomez also identified defendant at trial as the person who had robbed him. He 

admitted that he only looked quickly at defendant. When asked if he wanted to avoid 

looking at defendant in court, Gomez responded: “I don’t want to go looking at no guy. 

Come on. Especially after he robbed me.” Gomez also testified that when shown the sixpack photographic lineup, he identified defendant as the individual who robbed him. 

However, he stated: “[B]ut I didn’t want no problems with the guy, you know, so I 

wasn’t going to sign or anything like that.”

Park identified defendant and confirmed that she was certain that he was the 

robber. She testified that although she had gotten a good look at her assailant, she could 

not pick him out among the six photographs shown to her a few days after the robbery. 

When shown the same six-pack of photographs, Park picked out defendant as the person 

in photo No. 3.

Sanchez testified at trial that the robber was a Hispanic man, approximately 5’8” 

or 5’9” tall, 160 to 170 pounds, aged 26 or 27 years old. The robber was wearing blue 

jeans and a black hoodie at the time of the incident. On cross-examination Sanchez

admitted that at the preliminary hearing he had also described the suspect as chubby and 

wearing prescription glasses. When asked whether defendant was the person who robbed 

him, Sanchez stated, “I’m not sure. . . . I don’t think it’s him.”

Defendant did not testify or present any evidence.

Defendant was found guilty on counts 2 and 3 as charged. A mistrial was declared 

as to count 4.

Sentencing

The prosecution’s motion to strike defendant’s prior prison term allegations was 

granted. Defendant was sentenced to 19 years 4 months in state prison, as follows: the 

high term of five years on count 2 (§ 213), plus a consecutive term of 10 years for 

personal use of a firearm during the commission of count 2 (§ 12022.53, subd. (b)); one 

year (one-third the midterm of three years) on count 3 (§ 213), and three years four 

months for personal use of a firearm during the commission of count 3 (§ 12022.53, subd.
8

(b)). All terms are to run consecutively. The court also ordered defendant to pay various 

fines and fees and awarded custody credits.

Notice of appeal

On September 18, 2014, defendant filed a timely notice of appeal.

DISCUSSION

I. Eyewitness identification instruction (CALCRIM No. 315)

The trial court instructed the jury in this case with CALCRIM No. 315, which 

advises jurors on how to evaluate eyewitness identifications.2

Defendant argues that the trial court erred by giving this instruction, since it 

ratified the common misperception that a witness’s certainty correlates with his or her 

accuracy. Specifically, defendant challenges the instruction’s directive that the jury 

consider “how certain was the witness when he or she made an identification[?]”

Defendant argues that many scientific studies have confirmed that a witness’s perceived 

sense of certainty about his or her identification is usually not a good indicator of the 

identification’s accuracy.

 

2 The instruction was read to the jury as follows: “You have heard eyewitness 

testimony identifying the defendant. As with any other witness, you must decide whether 

or not the witness is truthful and accurate testimony. In evaluating identification 

testimony consider the following questions: did the witness know or have contact with 

the defendant before the event; how well could the witness see the perpetrator; what were 

the circumstances affecting the witness’[s] ability to observe, such as lighting, weather 

conditions, obstructions, distance, and direction of observation; how closely was the 

witness paying attention; was the witness under stress when he or she made the 

observation; did the witness give a description and how does that description compare to 

the defendant; how much time passed between the event and the time when the witness 

identified the defendant; was the witness asked to pick the perpetrator out of a group; did 

the witness ever fail to identify the defendant; did the witness ever change his or her mind 

about the identification; how certain was the witness when he or she made an 

identification; are the witness and defendant of different races; were there any other 

circumstances affecting the witness’[s] ability to make an accurate identification. The 

People have a burden of proving beyond a reasonable doubt that it was the defendant who 

committed the crime. If the People have not met their burden, you must find the 

defendant not guilty.”
9

A. Standard of review

An appellate court reviews instructional error such as this independently, since the 

underlying question is one of law. (People v. Alvarez (1996) 14 Cal.4th 155, 217.)

B. Applicable law

In People v. Ward (2005) 36 Cal.4th 186 (Ward), the California Supreme Court 

considered whether the trial court erroneously included a “level of certainty” factor in the 

standard eyewitness instruction in use at the time, CALJIC No. 2.92. The instruction 

directed the jury to consider “‘the believability of the eye witness as well as other factors

which bear upon the accuracy of the witness’ identification,’” including the “‘extent to 

which the witness is either certain or uncertain of the identification.’” (Ward, supra, at p. 

213.) The high court noted that the defendant did not request his proposed modifications 

at trial, and there was no sua sponte duty on the part of the trial court to modify the 

instruction. Numerous witnesses had indentified the defendant; the defendant’s expert 

testified that there was no correlation between an eyewitness’s level of certainty and the 

accuracy of his or her identification; and the defendant strongly attacked the accuracy of 

the eyewitness identifications at trial. (Id. at pp. 213-214.)

Similarly, in People v. Sullivan (2007) 151 Cal.App.4th 524 (Sullivan), the 

defendant argued that the trial court failed to delete sua sponte the reference to witness 

“‘certainty’” from CALJIC No. 2.92 regarding the factors to be considered in 

determining the weight to be given eyewitness testimony. (Sullivan, supra, at p. 561.) 

The Court of Appeal determined that the trial court had no such duty to modify a jury 

instruction on its own motion. Further, the court cited People v. Gaglione (1994) 26 

Cal.App.4th 1291, 1302-1303, disapproved on other grounds in People v. Martinez 

(1995) 11 Cal.4th 434, 452, and People v. Wright (1988) 45 Cal.3d 1126, which 

expressly approved CALJIC No. 2.92. As was done in Gaglione and Wright, the Sullivan 

court rejected the defendant’s arguments that CALJIC No. 2.92 was improper as given 

with reference to degree of certainty as a factor in assessing the reliability of eyewitness 

identification testimony. (Sullivan, supra, at p. 562.)
10

Finally, in People v. Johnson (1992) 3 Cal.4th 1183 (Johnson), the defendant 

argued that the trial court erred in instructing the jury “that the extent to which the 

witness was either certain or uncertain of the identification was a factor to consider in 

assessing eyewitness testimony.” (Id. at p. 1231.) In Johnson, an expert witness had 

testified without contradiction that a witness’s confidence in an identification does not 

positively correlate with its accuracy. In addition, because the instruction directly 

contradicted the expert’s testimony, it implied that the jury could not rely on her 

evidence. (Ibid.) The high court rejected these arguments, noting that the jury was not 

required to accept the expert’s testimony, yet it was permitted to find that the eyewitness 

identification was not necessarily an accurate one. (Id. at p. 1232.)

C. Scientific studies and foreign authority

Defendant urges this court to find that Johnson and Ward are not controlling 

precedent. Defendant notes that Johnson was decided 23 years ago, and that the high 

court merely held that the instruction, which contained the same certainty factor at issue 

here, would not confuse the jury under the circumstances of that case. As to Ward, 

defendant notes that the issue was one of dozens in the capital appeal, and the Supreme 

Court devoted only three paragraphs to the subject. In addition, defendant states, updated 

scientific research and out-of-state authority provide cause for reconsideration of the 

issue.

Defendant argues that recent scientific studies have revealed that an eyewitness’s 

confidence or certainty, in most cases, has little to do with his or her accuracy (citing

Wells & Olson, Eyewitness Testimony (2003) 54 Annu. Rev. Psychol. 277, 283-284). In 

addition, a witness’s confidence can be bolstered by suggestive procedures or confirming 

feedback. (Citing Wells & Bradfield, “Good, you identified the suspect”: Feedback to 

Eyewitnesses Distorts their Reports of the Witnessing Experience (1998) 83 J. Appl.

Psychol. 360, 366-368, 372-373.) Witness confidence is the single most influential factor 

in a juror’s determination of whether an identification is accurate (citing Wells et al., 

Accuracy, Confidence, and Juror Perceptions in Eyewitness Identification (1979) 64 J. 

Appl. Psychol. 440, 446). However, jurors are often unaware of how easily witness 
11

confidence can be manipulated. (Benton et al., Eyewitness Memory is Still Not Common 

Sense: Comparing Jurors, Judges and Law Enforcement to Eyewitness Experts (2006)

20 Appl. Cognit. Psychol. 115, 119-120.)3

Defendant argues that in light of these studies, California precedent on eyewitness 

identification is dangerously outdated. Defendant points to Justice Sotomayor’s dissent 

in Perry v. New Hampshire (2012) ___ U.S. ___ [132 S.Ct. 716], explaining that “The 

empirical evidence demonstrates that eyewitness misidentification is ‘“the single greatest 

cause of wrongful convictions in this country.”’. . . Study after study demonstrates that 

. . . jurors routinely overestimate the accuracy of eyewitness identifications; [and] that 

jurors place the greatest weight on eyewitness confidence in assessing identifications 

even though confidence is a poor gauge of accuracy.” (Id. at pp. 738-739, dis. opn. of 

Sotomayor, J., fns. omitted.)4

Thus, defendant argues, where, as here, the conviction rested on one or two 

eyewitness identifications, the erroneous instruction violates due process.

 

3 Contrary to defendant’s pronouncement that these articles discuss “recent” 

scientific research, we note that with the exception of the Benton article, all of these 

articles were published well before the Supreme Court’s decision in Ward.

4

In Perry, the majority rejected the defendant’s argument that due process requires 

a trial judge to conduct a preliminary assessment of the reliability of eyewitness 

identifications. Defendant notes that despite the high court’s failure to act, several states 

have fashioned safeguards against convictions resting on unreliable identifications. (See 

State v. Lawson (Or. 2012) 291 P.3d 673 [Oregon Supreme Court introduced new 

procedures for determining the admissibility of eyewitness identification evidence in light 

of recent research on the dangers of misidentification, reversing a conviction for new trial 

where the identification procedures were overly suggestive]; Brodes v. State (Ga. 2005) 

614 S.E.2d 766 [Georgia Supreme Court determined that including a “level of certainty” 

instruction on reliability of eyewitness identification was harmful error in the matter 

before it]; State v. Henderson (N.J. 2011) 27 A.3d 872 [Supreme Court of New Jersey 

determined that test for evaluating the trustworthiness of eyewitness evaluations should 

be revised in light of scientific research; proposing pretrial hearings regarding 

admissibility where defendant can show some evidence of suggestive procedures and 

enhanced jury instructions describing the relevant facts for eyewitness identifications and 

their effect on reliability].)
12

D. Forfeiture

We first address the People’s threshold argument that defendant has forfeited this 

claim because he failed to object to CALCRIM No. 315 at trial. (See Ward, supra, 36 

Cal.4th at p. 213 [trial court has no sua sponte duty to modify instruction to delete factor 

concerning level of certainty]; Sullivan, supra, 151 Cal.App.4th at p. 561 [same].)

Defendant responds to this argument by quoting section 1259, which provides that 

“[t]he appellate court may . . . review any instruction given, refused or modified, even 

though no objection was made thereto in the lower court, if the substantial rights of the 

defendant were affected thereby.” Thus, defendant argues, his failure to object to the 

instruction does not preclude review for constitutional error. (People v. Flood (1998) 18 

Cal.4th 470, 482, fn. 7.)

Defendant asserts that the instructional error violated his Fourteenth Amendment 

right to due process of law and thus affected his “substantial rights” under section 1259. 

Accordingly, we review defendant’s claim on the merits.

E. No error occurred

Ward remains the law of this state. In Ward, that defendant made similar 

arguments to those made here. He argued that the trial court erroneously included a 

“level of certainty” factor in its eyewitness instruction, which was standard in the

predecessor instruction to CALCRIM No. 315, as it is in the current instruction. The 

defendant in Ward also argued that the inclusion of the certainty language in the 

instruction deprived him of his Fourteenth Amendment right to due process of law. 

Defendant makes the same argument here.

The Supreme Court of this state disagreed with this argument, finding that the trial 

court had no sua sponte duty to modify the instruction to delete the “‘level of certainty’ 

factor.” (Ward, supra, 36 Cal.4th at p. 213; see also Johnson, supra, 3 Cal.4th at p. 1232 

[finding that the trial court did not err in instructing the jury that it may consider witness 

certainty in assessing eyewitness testimony].) In addition, the high court found that any 

potential error was harmless in that case because numerous witnesses identified the 

defendant as the perpetrator; defendant’s expert testified that there was no correlation 
13

between an eyewitness’s level of certainty and the accuracy of his or her identification; 

and defendant strongly attacked the accuracy of the eyewitness identifications at trial. 

(Ward, at p. 214.)

The trial court did not err in instructing the jury with the standard language of 

CALCRIM No. 3.15, which, despite challenges to the predecessor instruction, has not 

been declared unconstitutional in this state.

F. Any error was harmless in this case

Instructional error is reversible only if “‘the court, “after an examination of the 

entire cause, including the evidence,” is of the “opinion” that it is reasonably probable 

that a result more favorable to [defendant] would have been reached in the absence of the 

error.’ [Citation.]” (People v. Wright, supra, 45 Cal.3d at p. 1144, citing People v. 

Watson (1956) 46 Cal.2d 818, 836.) We find that even if the language of the instruction 

were erroneous, any instructional error would be harmless in this case.5

First, as in Ward, several witnesses identified defendant, including Gomez, his 

wife, and Park. Mrs. Gomez had identified defendant previously in a photographic 

lineup. In addition, the record shows that witnesses were cross-examined regarding their 

eyewitness identifications. Defendant’s counsel got Mrs. Gomez to admit that she had 

been focused on the gun during the robbery and that the perpetrator turned and quickly 

walked away. In addition, defendant’s counsel pointed out that Mrs. Gomez indicated 

uncertainty that defendant was the perpetrator when she picked his photograph out of the 

six-pack.

The problems with Gomez’s identification were also brought out for the jury’s 

consideration. Defendant’s counsel questioned Gomez on his very brief glance at the 

robber and the fact that he did not pick defendant’s photo when shown a six-pack. Park 

 

5 Defendant argues that because the alleged error raised here implicates his federal 

constitutional right to due process of law, this court must review this claim under the 

federal standard articulated in Chapman v. California (1967) 386 U.S. 18, 24. Under that 

standard, the question is whether the court can declare the error harmless beyond a 

reasonable doubt. (Ibid.) We find the error harmless under both the state and federal 

standards.
14

was also cross-examined about her failure to identify defendant in a six-pack shown to 

her just a few days after the robbery. Defendant’s attacks on the accuracy of the 

eyewitness identifications allowed the jury to consider that the witnesses may not have 

always been so certain that the defendant was the perpetrator. Indeed, the neutral 

wording of the instruction, which directs the jurors to consider “how certain was the 

witness when he or she made an identification,” allows the jury to consider the witness’s

prior failures to identify him and, in the case of Mrs. Gomez, her clear articulation of 

uncertainty.

The error was also harmless because the identifications were corroborated by 

independent evidence. Gomez’s cellular telephone was recovered from defendant’s 

pocket. In addition, Park’s cellular telephone box and adaptors were recovered from 

defendant’s girlfriend’s residence.

Accordingly, even if it was error for the trial court to include the certainty 

language in CALCRIM No. 3.15, any such error was harmless under the circumstances of 

this case.

II. Faretta motion

On November 5, 2013, this case was called for jury trial. At the hearing, 

defendant moved to represent himself in pro. per. The trial court asked him if he was 

“prepared to go to trial within the next 10 days.” Defendant replied that he would not be, 

because he needed to see if he could get his paperwork from his trial attorney. The court 

then asked the prosecution and defense to state whether each would be ready within the 

10 days. The parties informed the court that they would be ready on the eighth day.6

At that point, the court and defendant had the following exchange:

“The Court: Okay. Of course Mr. Castillo, I will consider your request. I’ll let 

you figure out the paperwork if you want, but unless you are prepared to be ready to go to 

 

6 At a hearing on November 13, 2013, the court continued the jury trial by 

stipulation until January 8, 2014. The trial was subsequently continued several times 

until it finally commenced on July 10, 2014. The record does not indicate that defendant

ever renewed his request for self-representation when these extensions were granted.
15

trial within the next eight days then the court does not believe your request is timely. So 

do you want the paperwork and to fill out the paperwork and talk to me about being your 

own counsel?

“The Defendant: Like I said, I’m going to need time to study the case. I need all 

the discovery and motions.

“The Court: That’s why the court doesn’t believe it’s timely, because you’re 

indicating that you’re not going to be ready within the next eight days. Both the People 

and your current counsel are going to be ready within the next eight days so and this case 

was arraigned back in June so it’s time for it to go to trial. However, with that 

understanding, do you still want to fill out the paperwork and have a discussion about 

being your own counsel?

“The Defendant: I’m going to have to need some more -- I might need some more 

time to just briefly through all the --

“The Court: You’re indicating you are not going to be ready within the next --

“The Defendant: No, ma’am.

“The Court: Find the request not timely. Both sides have announced ready. So 

let me fill out the transfer memo.”

Defendant argues that the trial court erred by summarily denying his Faretta 

request. Defendant maintains that the request was timely and that the trial court erred by 

failing to weigh all of the relevant factors before denying the request for selfrepresentation. Defendant further argues that this error denied him his Sixth Amendment 

right to represent himself, and must be reversed.

A. Timeliness

In support of his position that the Faretta request was timely made, defendant cites 

Ferrel v. Superior Court (1978) 20 Cal.3d 888, abrogated on other grounds in People v. 

Butler (2009) 47 Cal.4th 814, 826. In Ferrel, the petitioner had, “since the initiation of 

the criminal proceedings against him, sought to proceed in propria persona.” (Ferrel, at 
16

p. 890.) The case does not suggest that defendant’s motion was timely under the 

circumstances of this case.

7

In addition, defendant cites People v. Windham (1977) 19 Cal.3d 121, 124 

(Windham). In Windham, the defendant made a mid-trial motion to represent himself. 

The trial court denied the motion “principally on the ground that it came at too late a 

stage of the proceedings.” (Id. at p. 125.) The Windham court reasoned:

“The experience of other jurisdictions in dealing with the procedural 

implementation of a constitutionally based right of self-representation 

demonstrates that the requirement of a pretrial motion to that effect is a

workable and appropriate predicate to the exercise of the Faretta right. We 

hold therefore that in order to invoke the constitutionally mandated 

unconditional right of self-representation a defendant in a criminal trial 

should make an unequivocal assertion of that right within a reasonable time 

prior to the commencement of trial.”

(Windham, supra, 19 Cal.3d at pp. 127-128, fn. omitted.)

In assessing a late request to discharge an attorney and proceed in pro. per., the 

trial court should consider “the 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 proceedings, and the disruption or delay which might reasonably be 

expected to follow the granting of such a motion.” (Windham, supra, 19 Cal.3d at pp. 

128-129.)

The Supreme Court discussed the issue further in People v. Lynch (2010) 50 

Cal.4th 693 (Lynch), abrogated on other grounds in People v. McKinnon (2011) 52 

Cal.4th 610, 637-644. The high court noted that it has long held “that a selfrepresentation motion may be denied if untimely. [Citation.]” (Lynch, supra, at p. 722.) 

For example, the court has “held on numerous occasions that Faretta motions made on 

the eve of trial are untimely.” (Lynch, at p. 722.) In one case, a Faretta motion made a 

 

7 People v. Joseph (1983) 34 Cal.3d 936 (Joseph) also does not support defendant’s 

position in this case. In Joseph, the defendant made his Faretta motion five months 

before trial and almost two months before any pretrial motions were heard. (Joseph, 

supra, at p. 944.) Under the circumstances of that case, the trial court’s denial of the 

defendant’s motion to represent himself was error.
17

month before trial was considered untimely given the surrounding circumstances of that 

case. In another case, a motion made six days before trial commenced was also 

considered untimely, where both prosecution and defense counsel were ready to proceed 

and there was a serious witness problem at hand. (Lynch, at pp. 723-724.) Thus, the high 

court explained, “timeliness for purposes of Faretta is based not on a fixed and arbitrary 

point in time, but upon consideration of the totality of the circumstances that exist in the 

case at the time the self-representation motion is made.” (Lynch, at p. 724.) The United 

States Supreme Court has also observed that “lower courts generally require a selfrepresentation motion to be timely, a limitation that reflects that ‘the government’s 

interest in ensuring the integrity and efficiency of the trial at times outweighs the 

defendant’s interest in acting as his own lawyer.’ [Citation.]” (Id. at p. 722, citing 

Martinez v. Court of Appeal of Cal., Fourth Appellate Dist. (2000) 528 U.S. 152, 162.)

“‘When a motion for self-representation is not made in a timely fashion prior to 

trial, self-representation no longer is a matter of right but is subject to the trial court’s 

discretion.’ [Citation.]” (People v. Jenkins (2000) 22 Cal.4th 900, 959, quoting People 

v. Bradford (1997) 15 Cal.4th 1229, 1365.)

Under these authorities, the trial court had the discretion to deny defendant’s 

Faretta motion as untimely. The motion was made on the day the matter was called for 

trial, and both sides were ready to proceed on the eighth day of the trailing period. Upon 

being questioned by the court, defendant made it clear he would need to delay the 

proceedings in order to represent himself. Given the disruption and delay which would 

reasonably be expected to follow the granting of defendant’s motion, it was well within 

the trial court’s discretion to deny the motion as untimely.

B. The Windham factors

Alternatively, defendant argues that the trial court’s denial of his Faretta motion 

must be reversed because the trial court failed to make the inquiry mandated by 

Windham. In Windham, the Supreme Court stated:

“Among [the] factors to be considered by the court in assessing such 

requests made after the commencement of trial are the quality of counsel’s 
18

representation of the defendant, the defendant’s prior proclivity to 

substitute counsel, the reasons for the request, the length and stage of the 

proceedings, and the disruption or delay which might reasonably be 

expected to follow the granting of such a motion.”

(Windham, supra, 19 Cal.3d at p. 128; see also People v. Marshall (1996) 13 

Cal.4th 799, 827 [noting that a Faretta motion made after a reasonable time before 

the commencement of trial “is addressed to the sound discretion of the trial court, 

which should consider” the factors listed in Windham].)

Defendant cites People v. Rivers (1993) 20 Cal.App.4th 1040, 1048 (Rivers) for 

the proposition that it is error if the trial court summarily denies a Faretta motion without 

implicitly considering the Windham factors. In Rivers, the defendant moved for selfrepresentation after the jury had rendered its verdict but before the adjudication of the 

sentence enhancement allegation. Without discussion or inquiry, the court denied the 

motion as untimely. (Rivers, at p. 1047.)

The Fourth Appellate District acknowledged that the trial court properly 

recognized that a Faretta request made during trial is not timely. (Rivers, supra, 20 

Cal.App.4th at p. 1048.) However, the court pointed out that “a defendant dissatisfied 

with counsel must be permitted to recount specific examples of claimed inadequacy.” 

(Id. at p. 1049.) The court found that the trial court erred in denying the defendant a 

chance to explain his desire to represent himself. Nevertheless, ultimately the court 

found the error to be harmless because “there simply is no reasonable probability -- or 

even possibility -- that defendant would have obtained a more favorable result acting for 

himself.” (Id. at p. 1053.)

The matter before us differs from Rivers. Here, the trial court did not deny the 

request “[w]ithout discussion or inquiry,” as the trial court did in Rivers. (Rivers, supra, 

20 Cal.App.4th at p. 1047.) Instead, after explaining to defendant that the court did not 

believe the request was timely, the court invited defendant to “fill out the paperwork and 

talk to me about being your own counsel.” Defendant then stated that he needed to 

“study the case,” including getting all the discovery from his counsel. The court again 
19

indicated that trial needed to go forward, but then, a second time, invited the defendant to 

“fill out the paperwork and have a discussion” about being his own counsel. When 

defendant repeated that he would need additional time, the court found the request 

untimely.

While the court offered defendant the opportunity to discuss his reasons for 

seeking to proceed in pro. per., defendant made no effort to do so. Instead, he repeatedly 

indicated that he needed more time. Unlike the situation in Rivers, this was not a 

summary denial devoid of discussion.

A subsequent conversation with counsel indicated that there were 13 witnesses, 

approximately 20 exhibits, and separate victims involved in the impending trial. Thus, 

the trial court did not err in implicitly determining that due to the length and stage of the 

proceedings, and the disruption or delay which might reasonably be expected to follow 

the granting of defendant’s motion, his Faretta motion was untimely.

Here, the court set forth its rationale, explored the effects of delay, and offered 

defendant the opportunity to discuss his motion for self-representation. We find no abuse 

of discretion in the court’s decision to deny the motion.8

Nor do we find error in the trial court’s failure to explicitly consider each factor 

set forth in Windham. No case mandates that the trial court explicitly discuss each of the 

Windham factors. In fact, the Windham court declined to “mandate a rule that a trial 

court must, in all cases, state the reasons underlying a decision to deny a motion for selfrepresentation.” (Windham, supra, 19 Cal.3d at p. 129, fn. 6.) Instead, the high court 

only required that there be “a sufficient record on appeal in such cases in order to 

sufficiently evaluate alleged abuses of discretion when motions for self-representation are 

denied.” (Ibid.)

 

8 Again, we note that the matter was subsequently delayed by stipulation for several 

months. If defendant were truly intent on representing himself, this delay would have 

provided him an opportunity to renew his motion and have the time he claimed he needed 

to prepare himself. There is no evidence that defendant ever renewed his request.
20

The trial court’s exercise of discretion must be upheld where there are sufficient 

reasons on the record to support an implicit consideration of the Windham factors. 

(People v. Bradford (2010) 187 Cal.App.4th 1345, 1354-1355.) Here, defendant was 

given the opportunity to inform the court of his reasons for his request. The trial court 

implicitly considered defendant’s failure to provide such reasons, despite the court’s 

invitation.9 The trial court explicitly considered defendant’s repeated requests for more 

time. This provides us with a sufficient record to evaluate the court’s decision. We find 

no error.

In addition, as in Rivers, any error would be harmless under the circumstances of 

this case. Of four counts initially alleged against defendant, count 1 was dismissed and 

the jury hung on count 4. Thus, defendant’s counsel was able to assist defendant in 

avoiding conviction on two of the four counts. As to the remaining two counts, the 

evidence against defendant was overwhelming. He was identified by the two victims and 

a witness as the perpetrator of the robberies. Those identifications were corroborated by 

independent evidence, such as the recovery of stolen property from defendant’s pocket 

and his girlfriend’s residence, and the use of the phone number in the Gomez robbery in 

the subsequent robberies. Under the circumstances, we find there is no reasonable 

probability that defendant would have obtained a more favorable result in acting for 

himself. (People v. Watson (1956) 46 Cal.2d 818, 836.) Any error was therefore 

harmless.

 

9 Defendant emphasizes his previous Marsden motion, arguing that this prior 

motion weighed in favor of his Faretta motion by showing displeasure with his counsel’s 

representation. However, as the respondent points out, the motion was resolved against 

defendant, thus giving the trial court assurance that defense counsel’s representation had 

been found to be adequate.
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DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.

CHAVEZ

We concur:

__________________________, Acting P. J.

ASHMANN-GERST

__________________________, J.

HOFFSTADT