Filed 10/9/15 P. v. Rodriguez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. JORGE ALBERTO RODRIGUEZ, Defendant and Appellant. D067011

(Super. Ct. Nos. S CD253 339, SCD253592 & SCD25 5639 )

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

Marianne Harguindeguy, under appointment by the Court o f 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 Resp ondent.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 driv ing 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 asser ts the court committed prejudicial error by denying his
motion to later withdraw his guilty plea on the grounds that he does not write or

u nderstand the English language. We affirm the judgment.

FACTUAL AND PROCEDURAL B ACKGROUND 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, Rod riguez moved to replace his appointed counsel
under People v. Marsden , 1 contending the attorney had not sen t him certain discovery
items in a timely manner. The court denied his request as meritless

. A month later, Rodri guez was again arrested for stea ling a nother 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 ).3

On the first day of trial, before any potential jurors were called into the courtroom, Rodriguez made a sec ond 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, t he 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

. Rodrig uez later submitted a completed Faretta waiver form, acknowledging all of the dangers and disadvantages of self

- representation. The next day , without any further ruling o n the
Faretta motion , the court took Rodriguez ' s guilty plea.
At the sentencing hea ring, Rodriguez moved to withdraw his guilty plea on the ground that he d id 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 Unit ed 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, a nd 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 t rial 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

reas ons 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 tim ely. The Attorney General concede s that the waiver was knowing and intelligent, but claims it was made in an equivocal and untimely manner.
A

. Unequivocal
T o protect the constitutional right to counsel, one of the trial court ' s tasks in ruling

on a Far etta 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
statem ents 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. )5

Rodriguez plainly and unambiguously stated his wish to represent himsel f 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 pro pria per sona by filing a
Faretta waiver form with the court. This subsequent action was not ta ken 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 t hink

. . . ." ].)
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 motio n 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 mot ion . ( 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 the6

record and applying the Windham factors, we believe the trial cou rt 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. D uring 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 procl ivity to substitute counsel, also weigh ed 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 atto rney, effectivel y 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. Th is behavior evidence d a pattern of discontent with appointed couns el 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 , v ague, 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 c ourt 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. ( C lark , at pp. 98

- 101. )7

discuss his case with counsel. He also broadly and baselessly asserted that he did not feel
comfortable w ith 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
th at 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 weigh ed against granting the Faretta
motion. By the time Rodriguez brought his Faretta motion (on th e first day of trial) , the
proce edings had been ongoing for half a year. In addition, granting the motion would
have disrupt ed or further delay ed the proceedings

. Although it impermissibly focused on his legal skills, the trial court ' s Faretta inquiry re veal ed 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, grant ing Rodriguez ' s mot ion would have caused an unnecessary delay. In sum, the Windham factors militate against granting Rodriguez ' s untimely request to represent himself in pro pria per sona
. We affirm the trial court ' s denial of Rodriguez ' s Faretta motion.
II

. Right to an In terpreter Rodriguez asserts that the trial court committed a prejudicial erro r by den ying his request to withdraw his guilty plea on the grounds that he required an interpreter. The8

Attorney General argues that Rodriguez could, in fact, speak English and did not need an interpreter and, t herefore, 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 proceedin gs. " (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, 1 013 ( 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 int erpreter where, after examination, i t 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. )9

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 bas i s, the court reacted i ncredulous ly , indicating it s 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 de scribe d his problems with his counsel ' s legal tactics in English

. H e 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 displa yed no dis comfort 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

.10 DISPOSITION The judgment is affirmed.

PRAGER, J. * WE CONCUR:

M C INTYRE, 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.