Filed 10/9/15 P. v. Rodriguez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JORGE ALBERTO RODRIGUEZ,

Defendant and Appellant.

 D067011

 (Super. Ct. Nos. SCD253339,

 SCD253592 & SCD255639)

APPEAL from a judgment of the Superior Court of San Diego County, Lorna A. 

Alksne, Judge. Affirmed.

Marianne Harguindeguy, under appointment by the Court of Appeal, for 

Defendant and Appellant.

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

General, Julie L. Garland, Assistant Attorney General, Arlene Sevidal and Barry Carlton, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

Jorge Alberto Rodriguez pled guilty, pursuant to three separate criminal 

informations, to one count each of resisting executive officers (Pen. Code, § 69), evading 

an officer with reckless driving (Veh. Code, § 2800.2), and unlawful taking or driving of 

an automobile without consent of owner (Veh. Code, § 10851). He also admitted to a 

strike prior in each case and, in the vehicle theft case, a prior vehicle theft conviction. 

On appeal, Rodriguez contends the court erroneously denied his motion to 

represent himself. He also asserts the court committed prejudicial error by denying his 

motion to later withdraw his guilty plea on the grounds that he does not write or 

understand the English language. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The police initially arrested Rodriguez on suspicion of stealing a Honda Accord. 

Five days after being released on bail, Rodriguez engaged police in a high-speed chase

and was arrested for stealing a second car.

At a readiness conference, Rodriguez moved to replace his appointed counsel 

under People v. Marsden,1 contending the attorney had not sent him certain discovery

items in a timely manner. The court denied his request as meritless. 

A month later, Rodriguez was again arrested for stealing another Honda Accord. 

Rodriguez resisted arrest by pushing against one of the officers and running away, but the 

police soon recaptured him. 

 

1 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
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On the first day of trial, before any potential jurors were called into the courtroom, 

Rodriguez made a second Marsden request. He asserted he did not feel comfortable with 

his appointed counsel and claimed his attorney had not spoken to him about his case. 

After investigating the attorney's qualifications and preparedness, the court denied 

Rodriguez's motion. 

Rodriguez immediately moved to represent himself under Faretta v. California.2 

The court, after a brief inquiry into Rodriguez's knowledge of the law, concluded he did 

not have the legal sophistication to make an intelligent waiver of counsel. Rodriguez

later submitted a completed Faretta waiver form, acknowledging all of the dangers and 

disadvantages of self-representation. The next day, without any further ruling on the 

Faretta motion, the court took Rodriguez's guilty plea. 

At the sentencing hearing, Rodriguez moved to withdraw his guilty plea on the 

ground that he did not read or understand English. The court denied his motion and 

sentenced him to six years in state prison. 

DISCUSSION

I. Faretta Motion

Under the Sixth Amendment of the United States Constitution, defendants have a 

right to represent themselves in criminal trials. (Faretta, supra, 422 U.S. at p. 819.) A 

trial court must grant a defendant's motion for self-representation if the request is 

knowing, intelligent, unequivocal, and timely, that is, made within "a reasonable time 

 

2 Faretta v. California (1974) 422 U.S. 806 (Faretta). 
4

prior to the commencement of trial." (People v. Lynch (2010) 50 Cal.4th 693, 721, 722.)

A knowing, intelligent, and unequivocal motion made after this period is addressed to the 

sound discretion of the trial court. (People v. Clark (1992) 3 Cal.4th 41, 98 (Clark).) In 

exercising its discretion, the court should consider factors such as "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." 

(People v. Windham (1977) 19 Cal.3d 121, 128, 129 (Windham).) To determine whether 

the defendant properly invoked his right to self-representation, the reviewing court 

examines the entire record de novo. (People v. Dent (2003) 30 Cal.4th 213, 218.) 

Rodriguez argues that his Faretta motion was knowing and intelligent, 

unequivocal, and timely. The Attorney General concedes that the waiver was knowing 

and intelligent, but claims it was made in an equivocal and untimely manner. 

A. Unequivocal

To protect the constitutional right to counsel, one of the trial court's tasks in ruling 

on a Faretta motion is to determine whether the defendant truly wishes to represent 

himself. (People v. Marshall (1997) 15 Cal.4th 1, 23 (Marshall).) The court should 

evaluate whether the defendant has stated the motion clearly and whether the defendant's 

statements or actions create any ambiguity as to his desire to represent himself. (Ibid.) A 

motion for self-representation "made in passing anger or frustration" may be denied.

(Ibid.) 
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Rodriguez plainly and unambiguously stated his wish to represent himself after the 

denial of his second Marsden motion. Although his request was possibly born of anger 

or frustration, Rodriguez affirmed his desire to proceed in propria persona by filing a 

Faretta waiver form with the court. This subsequent action was not taken in the heat of 

the moment and suggests a firmness of conviction sometimes not present in other cases.

(Cf. Marshall, supra, 15 Cal.4th at p. 24 [Faretta motion was equivocal where 

defendant's request was "rambling and laced with requests for time to think . . . ."].)

B. Timely

Rodriguez brought his Faretta motion on the morning of the trial. As such, the 

request was not made "within a reasonable time prior to the commencement of trial." 

(See People v. Moore (1988) 47 Cal.3d 63, 79-81 [Faretta motion made on the day trial 

was set to begin would have been well within the court's discretion to deny]; People v. 

Scott (2001) 91 Cal.App.4th 1197, 1205 [Faretta motions made "just prior to the start of 

trial" are untimely]; People v. Hill (1983) 148 Cal.App.3d 744, 757 [Faretta motion 

made five days before trial was untimely and within trial court's discretion to deny].) 

Under these circumstances, the trial court should have applied the factors set forth in 

Windham to determine whether to deny the tardy motion. (Clark, supra, 3 Cal.4th at 

p. 98; Windham, supra, 19 Cal.3d at pp. 128-129.) Though the record does not clearly 

establish that the court considered each of the Windham factors, after reviewing the 
6

record and applying the Windham factors, we believe the trial court properly exercised its 

discretion.3 

The court evaluated the first factor, the quality of counsel's representation of 

defendant, during Rodriguez's July 28 Marsden hearing—a mere 10 minutes before 

Rodriguez brought his Faretta motion. During this hearing, the court inquired into the 

defense counsel's work experience and preparations made for Rodriguez's case. Based on 

his testimony, the court concluded he was adequately representing Rodriguez. 

The second factor, the defendant's proclivity to substitute counsel, also weighed in 

favor of denying the motion. Rodriguez originally moved for the substitution of 

appointed counsel on March 21. The motion was denied, but the office of the public 

defender assigned the case to a different attorney, effectively granting Rodriguez's 

request. Though his wish was fulfilled, Rodriguez was still not satisfied. He ultimately 

made another Marsden request for new counsel on July 28. This behavior evidenced a 

pattern of discontent with appointed counsel and a proclivity to bring unnecessary 

Marsden motions. 

During Rodriguez's second Marsden hearing, the court also considered the third 

factor, the reasons for the request. Rodriguez's justifications for his second Marsden

request were contradictory, vague, and insubstantial. He complained that counsel had not 

talked to him about his case, but, in the next breath, mentioned that he did not want to 

 

3 In Clark, the court did not find an abuse of discretion where the trial court did not 

explicitly consider the Windham factors. (Clark, supra, 3 Cal.4th at pp. 98-101.) As we 

do here, the Clark court independently reviewed the record and weighed the Windham

factors. (Clark, at pp. 98-101.) 
7

discuss his case with counsel. He also broadly and baselessly asserted that he did not feel 

comfortable with his appointed attorney. Due to the inadequacy of his justifications, the 

trial court denied his motion. Because Rodriguez brought the Faretta motion in response 

to his Marsden motion being denied, the superior court could have reasonably concluded 

that the motivation for both requests was the same and that the reasons for his Faretta

request were unsound. 

The length and stage of the proceedings also weighed against granting the Faretta

motion. By the time Rodriguez brought his Faretta motion (on the first day of trial), the 

proceedings had been ongoing for half a year. In addition, granting the motion would 

have disrupted or further delayed the proceedings. Although it impermissibly focused on 

his legal skills, the trial court's Faretta inquiry revealed that Rodriguez was not prepared 

to represent himself. He did not understand any of the legal concepts or procedures 

applicable to his case and admitted he would have to ask for some time to research the 

relevant law. Thus, granting Rodriguez's motion would have caused an unnecessary 

delay. 

In sum, the Windham factors militate against granting Rodriguez's untimely 

request to represent himself in propria persona. We affirm the trial court's denial of

Rodriguez's Faretta motion.

II. Right to an Interpreter

Rodriguez asserts that the trial court committed a prejudicial error by denying his 

request to withdraw his guilty plea on the grounds that he required an interpreter. The 
8

Attorney General argues that Rodriguez could, in fact, speak English and did not need an 

interpreter and, therefore, the trial court properly exercised its discretion.

Under the California Constitution, "[a] person unable to understand English who is 

charged with a crime has a right to an interpreter throughout the proceedings." (Cal. 

Const., art. I, § 14.) In assessing a trial court's decision to deny interpreter services, the

reviewing court makes two determinations. First, the court ascertains whether the lower 

court erred. (People v. Rodriguez (1986) 42 Cal.3d 1005, 1013 (Rodriguez).) Second, if 

an error exists, the court determines whether the error was harmless beyond a reasonable 

doubt. (Ibid.) 

There is no clear standard by which the reviewing court determines whether the 

trial court wrongly denied access to an interpreter. In Rodriguez, the California Supreme 

Court used the California Standards of Judicial Administration as a guide. (Rodriguez, 

supra, 42 Cal.3d at p. 1013.) The California Standards of Judicial Administration require

a court to provide an interpreter where, after examination, it concludes that the party 

cannot understand and speak English well enough to participate fully in the proceedings 

and assist counsel. (Cal. Stds. Jud. Admin., § 2.10.) The court must examine a party's 

English language skills where a party or counsel requests that it do so or where it appears 

to the court that a party does not understand English well enough to fully participate in 

the proceedings. (Ibid.) Further, error is established only where the trial court " ' " 'has 

exceeded the limits of legal discretion by making an arbitrary, capricious, or patently 

absurd determination.' " ' " (See In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1456; 

People v. Carreon (1984) 151 Cal.App.3d 559, 566-567.) 
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Rodriguez, who was born in the United States and had an 11th grade education,

did not ask for an interpreter at any point in the proceedings or at any of his numerous 

court appearances. When he made the request to withdraw his guilty plea on this basis, 

the court reacted incredulously, indicating its disbelief in Rodriguez's assertion he could 

not understand English. The court's assessment of the credibility of Rodriguez's 

contention was amply borne out by the record. In his first Marsden hearing, Rodriguez 

competently described his problems with his counsel's legal tactics in English. He 

demonstrated a comparable mastery of the English language during his second Marsden

hearing. His responses in his Faretta inquiry, though brief, were contextually appropriate 

and displayed no discomfort with the English language. Finally, during his sentencing 

hearing, Rodriguez explained, in English, his need for an interpreter. 

In sum, the trial court personally witnessed abundant evidence of Rodriguez's 

competency with the English language. Accordingly, under the California Standards of 

Judicial Administration, there was no need for an examination and, by extension, no need 

for an interpreter. The trial court did not abuse its discretion by denying Rodriguez's 

motion to withdraw his guilty pleas.
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DISPOSITION

The judgment is affirmed.

PRAGER, J.*

WE CONCUR:

MCINTYRE, Acting P. J.

IRION, J.

 

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.