Filed 6/17/14 P. v. Leon CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,
Plaintiff and Respondent,

v.

FRANCISCO JULIAN MONCADA LEON,
Defendant and Appellant. B247169
(Los Angeles County Super. Ct. No. PA058799)

APPEAL from a judgment of the Superior Court of Los Angeles County, Harvey Giss, Judge. Affirmed

. Matthew Alger, under appointmen t by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson and Mark E. Weber, Deputy Attorney s Gene ral, for Plaintiff and Respondent.

_________ ___________2 INTRODUCTION

Defendant Francisco Julian Moncada Leon appeals from a judgment of conviction
entered after a jury found him guilty of one count of first degree murder (Pen. Code, 1 § 187, subd. (a)) and t he trial court sentenced him to a state prison term of 25 years to
life. Leon challenges the denial of his June 28, 2012 Faretta 2 motion. Leon also seeks correction of his presentence custody credits , based on documents in Spanish from Mexico, to in clude 30 6 days he was incarcerated in Mexico prior to his extradition to the
United States . We affirm the judgment.

FACT UAL AND PROCEDURAL BACKGROUND

A. The Crime
Leon and Erika Chavez had a romantic relationship from 2000 to 2006
, and they
had two ch ildren together

. Leon had a hist ory of violence toward Chavez. During the f

all of 2006, Leon began dating Janet Martinez, a 25

- year

- old moth er of two who lived with her mother. On November 3, 2006 Leon and Martinez were having sexual intercourse when Ma rtinez asked Leon to slow down because he was hurting her. Leon became upset, threatened Martinez, beat her
, and repeatedly sexually
assaulted her. Leon drove Martinez to her home . When she tried to get out of the car,
Leon pulled her back in by her hai r and threatened her with a knife. He drove her to
another location and freed her

. Martinez went to a police station and reported what occurred. The police took her
to the h ospital for examination. While she was in the hospital, s he received several

te lephone messages from Leon asking for her forgiveness. A few days later, Martinez

1 All statutory r eferences are to the Penal Code except as otherwise identified.

2 Faretta v. California (1975) 422 U.S . 806, 835

- 836 [95 S.Ct. 2525, 45 L.Ed.2d 562]

.3

told her friend Noemi Ronzan that she had forgiven Leon , and the two of them went to the police station to remove the r estraining order Martinez had obtained against Leon

. Martinez told the police that she was recanting her statements that Leon had beaten and sexually assaulted her, and she signed a complaint refusal form.
Two weeks after Leon had beat en and s exually assaulted Martinez, they married

. Then they moved in tog ether with Martinez ’ s c hildren to a house in Pacoima. On Friday
, January 26, 2007 Martinez ’ s children went to spend the weekend with their father. On Sunday, January 28 the children ’ s father took the m to the home of
Martinez ’ s mother , where Martinez was supposed to pick them up that evening

. Martinez did not come to pick up her children

. Leon called Chavez on Monday, January 29, 2007, and told her he needed money to get out of town . He said he had choked Martinez during a fight
, and when he left she

wa s not breathing. Leon later telephoned Chavez and told her that he was liv ing in
Mexico with his mother. On February 1, 2007 Martinez ’ s mother and other family members went to the
house where Martinez and her children live d . They found Martinez ’ s body o n the floor, with a towel and an article of clothing wrapped tightly around her neck. Martin ez had died from asphyxia caused by stra ngulation.
Leon was apprehended in Mexico and extradited to Los Angeles , where police
detectives interviewed him

. Leon to ld the detectives that he and Martinez had gone dancing at a disco and ran into a waitress he had dated before. Martinez became upset and, at her request, Leon took her home. Martinez removed her clothes from the closet
, and Leon took a shower. While he was drying himself with a towel, Martinez told Leon
that she did not l ike his son , she had had sexual relations with her boss and her boss ’ assistant, and she had married Leon to get out of her mother ’ s house. Martinez bit and
scratched Leon

. Leon grabb ed the towel and pulled it hard around Martinez. She fainted
to the floor , which scared Leon , so he decided to leave

. Martinez was still breathing
when he left. The next day Leon drove to Las Vegas, abandoned the car, and took a bus
to Mexico. During t he interview with detectives, Leon identified the towel that he had4

used. He said he was remorseful and “ deserve[d] a punishment, ” because he had
committ ed a mistake.

B. The Marsden and Faretta Motions The court appointed Deputy Public Defender C hristo pher Sharpe to represent
Leon

. The court ’ s Spanish

- language interpreters translated for Leon throughou t the proceedings. On February 23, 2010 Leon made a motion under People v. Marsden (1970) 2
Cal.3d 118 to replace Sharpe as his attorney, claiming that Sharpe was not representing
him well

. After hearing from Leon and Sharpe, t he court stated that Sharpe was defending Leon properly and denied the Marsden motion without prejudice

. Leon then asserted he had a right to self

- representation, but he did not p ursue th e matter. Sharpe represented Leon at the felony preliminary h earing on June 17, 2010. On
June 22 the People filed an information charging Leon with murder

. Sharpe represented
Leon at his July 1 arraignment

. On January 11, 2011 Leon told the cou rt Sharpe had a conflict of interest. The
court held a second Marsden hearing , but Leon did not identify any disqualifying conflict
of interest. The court denied the motion without prejudice

. On August 16, 2011 Sharpe informed the trial court that Leon wanted to have a new attorney appointed to represent him. The court held a third Marsden hearing and denied the motion without prejudice

. During the Marsden hearing, Leon told the court
that he wanted to exercise his Faretta rights to represent himself

. The court explained the disadvantages of self

- representation and gave Leon Faretta advisements substantially similar to those the Supreme Court held in People v. Lawley (2002) 27 Cal.4th 102, 141

- 142 were adequate. 3 Leon repeated that he wanted to repres ent himself

. When the court

3 The court advised Leon as follows: “One, self representation is almost always unwise and the defense may be conducted to your detriment.5

asked Leon how long he thought he would need to prepare for trial, Leon said
, “ Maybe a

year. ” The court gave Leon the requisite form to complete for his Faretta motion and directed the interpreter to assist Leon with the form. After a recess, the interpreter
informed the court Leon wanted to think about it overnight. A t a hearing the next day,
Leon said he wanted the public defende r to continue representing him.

“Two, you are entitled to no special indulgence from the court and must follow all technical rules of substantive law, procedure, and evidence in making motions, presenting evidence, and conducting jury selection and argument. The same rules that govern the lawyers will control and restrict you and I will give you no ad ditional help. You’ll have to abide by rules that took years for the lawyers to learn. “Three, the prosecution will be represented by an experienced professional lawyer who will give you no ground for the lack of your skills or experience. It will not b e a fair fight. “Four, there will be no more library privileges than those available to all other pro pers and there will be no extra time for preparation or staff investigators at your beckoned [ sic ] call

. “Five, if your rights are terminated for miscon duct or the inability to proceed in a timely manner, I’ll have stand

- by counsel ready to represent you. But that stand

- by counsel will be at a terrible disadvantage because I will not give stand

- by counsel an opportunity to prepare as if he was coming on new or fresh to the case. He’ll have to pick up from where you are leaving off. It will be a terrible disadvantage. But I will appoint stand

- by counsel. Meaning that if you lose your nerve or wish to, wish to relinquish your right to represent yourself , he’ll step in. If it’s right before trial is to begin, I’m not going to give that person more time to prepare. And if it’s during the middle of trial that person will have to pick up without missing a beat and take over. “If you’re incarcerated, which you are, your access to the law library and other privileges may be subject to limitations if you misbehave or there is trouble in jail. You will not have advisory counsel. There will not be somebody else trying it with you as co

counsel or your co

- pilo t. “If you are disruptive in court I can yank your right to represent yourself and appoint stand

- by counsel. And, finally, if you’re convicted while representing yourself, there will be no right to appeal based on your ineffectiveness of counsel or the c ourt allow ing you to represent yourself. “Do you understand all of this? “THE DEFENDANT: Yes.”6

On February 8, 2012 , t he date set for trial, Leon made a fourth Marsden motion
, which the court set for hearing on F ebruary 14, 2012

. At the February 14 hearing, Sharpe
told the court that Leon had withdrawn his Marsden motion

. At the next hearing on March 15, 2012
, Leon told the court he wanted to exercise
his Fare tta rights to represent himself. The court made arrangements for an interpreter to
read the Faretta form to Leon and asked Leon to check the boxes and sign the form. After a recess, the court held the Faretta hearing and noted that Leon ha d previously

re quested to represent himself i n February 2010 and August 2011 and that on both
occasions L eon had changed his mind and agreed that Sharpe would continue to represent
him. The court again gave Leon extensive Faretta warnings about the disadvantages of
self

- representation

. When the court asked Leon if he wanted to represent himself
, Leon
stated: “ If you can assign me another lawyer that would be the best. ” When t he court
asked Leon if he was making a Marsden motion
, Leon gave some general reasons why he

w anted the court to relieve Sharpe

. The court denied the Marsden motion (Leon ’ s fifth)

. Leon then repeated his request to represent himself under Faretta and provided the court with a signed Faretta advisement and waiver of right to counsel form. Both t h e trial court and Sharpe advised Leon that his inability to understand English would cause
additional difficulties. The court gave Leon a nother lengthy advisement of the risks of
self

- representatio n

. Leon confirmed he still wanted to represent himself. The court released Sharpe and the office of public defender as counsel for Leon

. The court f ound
that Leon “ voluntarily and intelligently chooses self

- representation , and that he knowingly, intelligently, understandingly, and explicitly waive s his right t o counsel, and
determine s that [he] is competent to represent himself. ” On March 23, 201 2 Leon appeared
, representing himself . The court appointed
stand

- by counsel. The court granted in part Leo n ’ s motion for ancillary funds , granted
Leon ’ s motion to ap point an investigator, and set a pretrial conference for April 20, 2012.
A t the April 20 pretrial conference, however, Leon stated that he did not understand the system because it was too complicated and demanded counsel. The court reappointed Sharpe

.7

A fter several mo re continuances, Leon on June 28, 2012 made a sixth Marsden motion to relieve Sharpe as his counsel

. After inquiring about the basis of Leon ’ s Marsden motion, the court denied it

. Leon then stated, “ I ’ m going to exercise my fair rights

. ” The court interpreted th e statement as another Faretta motion for self

representation , Leon’s fourth

. The court den ied the motion , stating that granting the
motion woul d interfere with the speedy presentation of the trial. The court explained that
Leon h ad represented himself once and had indicated he did not understand the procedures and did not know what he was doing
, and that he had asked the court to reappoint his attorney , although the court stated it was not denying the motion because
Leon lacked th e skill to represent himself

. The court expressed concern that the offense
had occurred in 2007, two years had already passed since Leon ’ s arraignment, and trial was set for August 6, 2012. The court found that granting Leon ’ s Faretta motion would
interf ere with the presentation of the case in a speedy manner because it would take six to eight months for Leon to get ready for trial. The trial court stated: “ It would take you far too long and will play ping

- pong with your representation

. . . where you c onstantly wish to release counsel. It will not happen again because we ’ re so close to tr ial. ”
The trial ultimately began on January 23, 2013 , with Sharpe representing Leon. As noted above, the jury convicted Leon of first degree murder.

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in Denying Leon ’ s Fourth
Faretta Motio n 1. Introduction
In Faretta v. California
, supra , 422 U.S. 806, the United States Supreme Court held that, u nder the Sixth Amendment of the federal Constitution, a cr iminal defendant
has a “ constitutional right to conduct his own defense. ” ( Id. at p. 836.) The right to self

representation is independent of the guarantees of the Sixth and Fourteenth Amendments

“ that a person brought to trial in any state or federal co urt must be afforded the right to8

the assistance of counsel before he can be validly convicted and punished by imprisonment. ” ( Id. at p. 807.) However, “ t he right of self

- representation is not
absolute. ” ( Indiana v. Edwards (2008) 554 U.S. 164, 171 [128 S.Ct. 2379, 171 L.Ed.2d 345]; see People v. Butler (2009) 47 Cal.4th 814, 825.) “‘ A trial court must grant a
defendant ’ s request for self

- representation if the defendant knowingly and intelligently makes an unequivocal and timely request after having bee n apprised of its dangers. ’ [Citation.] ” ( People v. Williams (2013) 58 Cal.4th 197, 2 52

- 253 .) Thus, “ Faretta
motions must b e both timely and unequivocal. ” ( People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1002 ; see Williams
, supra , at p. 25 2 .)
Leon d oes not challenge the trial court ’ s denial of his six Marsden motions, nor does he raise any issue regarding the trial court ’ s granting of his March 15, 2012 Faretta
motion. (See People v. Williams (2013) 56 Cal.4th 165, 193

- 194 [trial court did not err i n granting the defendant ’ s Faretta motion and allowing the defendant to represent himself

at the penalty phase].) Leon ’ s only argument is that the trial court abused its discretion by denying his fourth Faretta motion as untimely.

2. Leon’s Faretta Mot ion W as Untimely While a timely, unequivocal Faretta motion invokes “ the nondiscretionary right to
self

- representation, ” an untimely Faretta motion does not. ( People v. Lawrence (2009) 46 Cal.4th 186, 191

- 192; see People v. Lynch (2010) 50 Cal.4th 693, 7 21 , 722 [ “ [a] trial court must grant a defendant ’ s request for self

- representation ” if it is timely, but may deny the request “ if untimely ] ; People v. Bradford (1997) 15 Cal.4th 1229, 1365 [if a Faretta motion is untimely, “ self

- representation no longer is a matter of right but is subject to the trial court ’ s discretion ” ].) In determining whether a Faretta motion is untimely, “ a trial court may consider the totality of the circumstances, ” including “ not only the time between the motion and the scheduled tr ial date, but also such factors as whether trial counsel is ready to proceed to trial, the number of witnesses and the reluctance or availability of crucial trial witnesses , the complexity of the case, any ongoing pretrial proceedings, and whether the defe ndant had earlier opportunities to9

assert his right of self

- representation. ” ( Lynch
, supra , at p. 726.) “[T]he trial court’s determination of untimeliness necessarily must be evaluated as of the date and
circumstances under which the court made its rulin g

. . . .” ( People v. Marshall (1997) 15 Cal.4th 1, 25, fn. 2.) The trial court here properly considered the appropriate factors and found, u nder the totality of the circumstances, that Leon ’ s fourth Faretta motion was untimely. At the
time of the motio n o n June 28, 20 12, the criminal proceeding s had been pending for almost two years, and the alleged crime had occurred more than five years before, in January 2007. The trial date had been continued multiple times, from February 8, 2012 to August 6, 2012, in part because of Leon ’ s serial Marsden and Faretta motions. (See People v. Perez (1992) 4 Cal.App.4th 893, 904 [court could consider the defendant ’ s

“ ‘ prior proclivity to substitute counsel ’ given his three previous Marsden motions ” ].)
There is no ind ication that Sharpe was not ready to proceed to trial. In fact, in connection
with Leon ’ s various Marsden motion s , Sharpe advised the trial court he knew the case

“ inside and out , ” had a defense theory , and, although Leon had confessed, Sharpe
intended to defend him an d force the prosecution to prove its case

. After the court denied
the Faretta motion, the court asked if the August 6 trial date was “ still realistic, ” and Sharpe stated that it wa s, which further confirms that Sharpe was ready to proceed to
trial. Although the People charged Leon with only one crime, the first degree murder of his wife, t he case was relatively complex, at least from the defense perspective, because Leon was facing a life sentence for a crime to which he had voluntarily conf essed twice. During the six

- day trial, 16 witnesses testified, including Chavez, two nurse practitioners,
and an investigator and forensic pathologist from the coroner’s office. Although there is no indication that any of the key witnesses had any health or availability issues, the trial court’s comments suggest that the court was properly concerned that further delay of the
trial might decrease the accuracy of the witness es ’ recollection s of the events before and after the crime. (See People v. Lynch
, s upra , 50 Cal.4th at p. 728 .) The trial court noted
in connection with one of the Marsden hearings that the issue whether Leon could10

suppress the confession “and how it [ could ] be used,” and the issues relating to the DNA evidence, were sophisticated legal issues that Leon would have difficulty understanding and arguing to the court. And , a s summarized above, the pretrial proceedings were extensive and included six Marsden motion s , three prior Faretta motion s , a period of time when Leon represented himself , and then a reinstatement of appointed counsel. During these pretrial proceedings, Leon not only had the opportunity to assert his right to
self

- representation, he actually did assert this right , and he did so successfully. These
fac tor s weigh ed heavily in favor of finding that the second assertion of his right to self

representation w as untimely.
It is true that at the time of Leon ’ s fourth Faretta motion, the most recently

continued trial date was just over a month away

. The Supreme Court has held, h owever, that its “ refusal to identify a single point in time at which a self

- representation motion filed before trial is untimely indicates that outside these two extreme time periods ” of long before trial and on the eve of trial, “ pertinent considerations may extend beyond a mere counting of the days between the motion and the scheduled trial date. ” ( People v. Lynch
, supra , 50 Cal.4th at p. 723 .) “ Faretta nowhere announced a rigid formula for determining timeliness without regard to the circumstances of the particular case. ” ( Id. at p. 724.) “ [T]imeliness 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 motio n is made. An analysis based on these considerations is in accord with the purpose of the timeliness requirement, which is ‘ to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice. ’ [Citation .] ” ( Ibid .) Indeed , in People v. Lynch the Supreme Court held that, in the circumstances of th at case, the two Faretta motions filed

“ months before trial began ” were untimely. ( Id. at pp. 726, 770.) 4

4 Leon cites several federal cases in which, he claims, the reviewing court found that a request for self

- representation was timely when made “weeks before t rial” ( Faretta v. California
, supra , 422 U.S. at p. 835 ; Marshall v. Taylor (9th Cir. 2005) 395 F.3d 1058, 1061), “ before the jury was empaneled ” unless a delay tactic ( Armant v. Marquez11

Because Leon ’ s fourth Faretta motion was untimely
, the trial court had discretion to deny the motion. (See People v. Lynch
, supra , 50 Cal.4 th at p. 728 [ “ defendant ’ s self

representation motions were properly deemed untimely, ” and “ [t]hus, the trial court had discretion to deny the motions ” ].) T herefore, the remaining question is whether the trial
court abused its discretion in denying the motion

.

3

. The Trial Court D id N ot Abuse Its Discretion in Denying Leon’s Untimely Faretta Motion In exercising its discretion to rule on an untimely Fa retta motion, “ the trial court
should consider factors such as ‘“ 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 su ch a motion .”’ [ Citation.]” ( People v. Jenkins (2000) 22 Cal.4th 900, 959 ; see People v. Williams
, supra , 56 Cal.4th at p. 194.) The trial court need not explicitly cons ider each factor, as long as the record contains sufficient evidence to support implicit consideration of the factors. ( People v. Scott (2001) 91 Cal.App.4th 1197, 1206; see People v. Marshall (1996) 13 Cal.4th 799, 828 [“[a] though in denying defendant ’ s Faretta motion the trial court relied heavily on the
absence of a ny showing counsel was incompetent, the record reflects its explicit or implicit consideration of each of the other

. . . factors ”].) “‘[A] reviewing court must give “considerable weight” to the court’s exercise of discretion and must examine the total

(9th Cir. 1985) 772 F.2d 552, 555), “‘ before meaningful trial proceed ings have commenced ’” and “ on the morning of trial ” ( Fritz v. Spalding (9th Cir. 1982) 682 F.2d 782, 784). California, however, does not follow the federal rule for evaluating whether a Faretta motion is untimely

. (See People v. Burton (1989) 48 Cal.3d 8 43, 854 [“ [t]o the extent that there is a difference between the federal rule and the California rule [for timeliness of Faretta motions] , we find the federal rule too rigid in circumscribing the discretion of the trial court and adhere to the California r ule” ]; see People v. Ngaue (1991) 229 Cal.App.3d 1115, 1124 [California Faretta timeliness rule “vest[s] greater discretion in the trial court”].)12

circumstances confronting the court when the decision is made.’ [Citation.] ” ( People v. Bradford (2010) 187 Cal.App.4th 1345, 1353.)
The record shows that the trial court considered the rele vant factors and did not abuse its discretion in denying Leon’s fourth Faretta motion. At the hearings on Leon’s multiple Marsden motions, the trial court assessed and praised the quality of Sharpe’s representation of Leon. ( People v. Jenkins
, supra , 22 Cal.4th at p. 959

- 960 .) The trial court found that Sharpe “has properly represented [Leon] and will continue to do so,” that Sharpe had “discussed [ the ] matter with [Leon]

. . . at great length,” and was qualified and had a good reputation. The trial cou rt told Leon that the court had experience with Sharpe in previous matters and observed that Sharpe was “a t op flight lawyer.”
The trial court also considered Leon’s “‘prior proclivity to substitute counsel
, ’ ”
which “ is a legitimate factor for the court t o consider in connection with an assertion of the right to self

- representation.” ( People v. Lancaster (2007) 41 Cal.4th 50, 69.) Leon

was initially represented by counsel, then attempted unsuccessfully multiple times to

su bstitute counsel, and then succe ssfully moved to represent himself
, but he soon became frustrated and successfully moved to have counsel reinstated. When the trial court reappointed the same attorney who had previously represented him , Leon again attempted
to substitute counsel. The re asons Leon gave for making the motion were that Sharpe had been lying to him, had failed to communicate with him, and had not interviewed
witnesses. When the trial court denied this Marsden motion, Leon stated that he did not agree and was going to make a Faretta motion. Leon did not state any reasons for the
Faretta motion, other than he disagreed with the court’s ruling on the Marsden motion. The trial court was properly concerned about Leon’s “repeated alternation between self

representation and the s ervices of counsel” and found that this was an additional reason to deny Leon’s fourth Faretta motion. ( Ibid. ; see People v. Roldan (2005) 35 Cal.4th 646, 684 [prior Faretta motion s evidenced a proclivity to substitute counsel and weighed in favor of deny ing fourth Faretta motion], disapproved on another ground in People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Lawley
, supra , 27 Cal.4th at p. 150 [defendant’s previous dismissal of his attorney “yield[ed] the inference he had

. . . a13

proclivi ty to substitute counsel” and supported trial court’s denial of Faretta motion]; People v. Perez
, supra , 4 Cal.App.4th at p. 904 [three prior Marsden motions, two of which were successful, evidenced a procl ivity to substitute counsel].) As to the expected disruption and delay that reasonably would ensue had the trial court granted Leon’s fourth Faretta motion, the trial court properly found that disruption and delay were likely. In connection with an earlier Faretta motion
, Leon had told the
court that if he proceeded to represent himself, he would need a year to prepare for trial. Leon undoubtedly would require a similar extension of time. Leon also gave the court no

reason at the June 28, 2012 hearing to believe that he would not again experience
frust ration at the complexity of the criminal justice system and ask the court again to reappoint counsel for him. It was reasonably foreseeable if not a certainty that relieving Sharpe and granting Leon’s request to represent himself again would cause additio nal substantial delay. The trial court stated: “ It ’ s interfering with the speedy presentation of
the trial.

. . . I feel that because of the nature and gravity of the offense that for you to get ready would now take six to eight months

. . . . It’s int erfering with the presentation of this case in a speedy manner.

. . . So respectfully your motion to represent yourself is
denied .” The trial court also noted Leon’s fourth Faretta motion would create a “ping

pong” game of retaining, releasing, retaining , and releasing appointed counsel that would
further delay the trial. As the California Supreme Court has stated, Faretta “ held generally that a defendant may represent himself. It did not establish a game in which defendant can engage in a series of mac hinations, with one misstep by the court resulting
in reversal of an otherwise fair trial. ” ( People v. Clark (1992) 3 Cal.4th 41, 115; see People v. Horton (199 5 ) 11 Cal.4th 1068, 1111 [defendant not entitled to delay the trial

“‘ by juggling his Faretta r ights with his right to counsel interspersed with Marsden
motions ’”].) In People v. Lynch
, supra , 50 Cal.4th 693 the California Supreme Court
stated , in words equally applicable to this case, that the trial court had not abused its discretion by denying t he motion on the grounds that a case “that had endured significant delay was finally nearing resolution,” ( id . at p. 727) and that granting the motion would require giving the defendant additional time “to investigate and prepare” and “was14

reasonably likel y to result in substantial delay and disruption of the proceedings.” ( Id. at
p. 728.) The circumstances of Leon’s fourth Faretta motion also suggest that the primary motivation for the motion was not to represent himself again, which he admitted had been a difficult and frustrating experience. Leon repeatedly informed the court that he wanted an attorney other than Sharpe. Leon made his Faretta motions only when the court
denied his motions for a different court

- appointed attorney

. F rom this fact the t rial court reasonably could have inferred that Leon was making the motion out of frustration rather
than a genuine desire to represent himself. (See People v. Butler
, supra , 47 Cal.4th at p.
825 [ trial court “ may deny a request for self

- representation tha t is

. . . made in passing anger or frustration”]; cf. People v. Stanley (2006) 39 Cal.4th 913, 932

- 933 [oral request “for self

- representation during a renewed Marsden motion

. . . out of apparent annoyance or frustration with his first appointed counsel” was evidence that defendant’s waiver of counsel was not knowing and intelligent].) Finally
, even assuming the trial court a buse d its discretion in denying Leon’s
fourth Faretta motion, Leon suffered no prejudice from the denial. A lthough an erroneous den ial of a timely Faretta motion for self

- representation is reversible per se ( People v. Williams
, supra , 58 Cal.4th at p. 253; People v. Butler
, supra , 47 Cal.4th at

p. 824), a n erroneous denial of an untimely motion for self

- representation is reviewed for
harmless error under People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Rogers (1995) 37 Cal.App.4th 1053, 1058; People v. Nicholson (1994) 24 Cal.App.4th 584, 594

- 595; People v. Rivers (1993) 20 Cal.App.4th 1040, 1050.) Here, the evidence agains t Leon was overwhelming. Leon confessed twice, once to the detectives that he had strangled Martinez with a towel and once to Chavez that he had choked Martinez and that she had stopped breathing. Leon identified for the police the towel he had used to

s trangle Martinez and admitted he deserved to be punished. In addition, the jury convicted Leon after a trial in which Leon was represented by counsel, whose performance the trial court had praised. It is difficult to envision how Leon could have
obtained a better result had he represented himself. (See Martinez v. Court of App

. of15

Cal

. (2000) 528 U.S. 152, 161 [120 S.Ct. 684, 145 L.Ed.2d 597] [“[o]ur experience has taught us that ‘a pro se defense is usually a bad defense, particularly when compared to a defense provided by an experienced criminal defense attorney’”]; Faretta v. California
, supra , 422 U.S. at p. 834 [“in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts”]; People v. Blair (200 5 ) 36 Cal.4th 686, 740 [“‘the right of self

- representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant’”]; People v.
Rivers , supra , 20 Cal.App.4th at p. 1051 [“a defendant who represe nts himself virtually never improves his situation or achieves a better result than would trained counsel”].) Given the record in this case, it is not reasonably probable that
, h ad Leon represented himself, he would have obtained a better result

.

B. Leo n Is Not Entitled t o a Recalculation of his Custody Credits on Appeal
Leon asks us to take judicial notice of a document he claims shows the number of days he was in custody in Mexico befor e his extradition to the United States . On the
basis of this evid ence, he requests that we increase his presentence custody credit from 1,281 act ual days to 1,587 actual days.
The document is in Spanish with handwritten annotations on it , accompanied by an English translation and a declaration of a translator. In his request for judicial notice,
Leon represents that the document is f rom the Mexican General O ffice of Legal Affairs, Division of International Legal Assistance and the Office of the Me x ican Attorney General Federal Investigations Agency. Leon argues that t he document show s he was taken into custody in Mexico for the charges in this case on October 23, 2008 , and
therefore he is entitled to 306 more days of presentence custody credits than the trial
court awarded. In a letter brief filed with this court on D ecember 10, 2013, Leon ’ s appellate c ounsel represents that at a hearing on April 5, 2013, the trial court declined to award such credit on the basis that it did not have jurisdiction to correct the credit
because Leon had filed a notice of appeal.16

Leon pr ovides no explanation , however, for why he did not and could not have presented the document to the trial court prior to sentencing. “ An appellate court may properly decline to take judicial notice under Evidence Code sections 452 and 459 of a
matter whic h should have been presented to the trial court for its consideration in the first instance. [Citations.] ” ( Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325

- 326 ; see People v. Rubics (2006) 136 Cal.App.4th 452, 462, fn. 5 [declining to take judicial n otice

“ because [ the ] material was not presented to the trial court at sentencing”] .) As the Supreme Court held in V

ons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th
434 , “ [r]eviewing courts generally do not take judicial notice of evidence not presented to the trial court. Rather, normally ‘ when reviewing the correctness of a trial court ’ s judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered. ’ [Citation] ” ( Id. at p. 444 , fn. 3 ; see People v. Schoop (2012) 212 Cal.App.4th 457, 465, fn. 3 [denying request for judicial notice where “there is no indication that the documents were filed or lodged in the trial court”] .) Moreover, the material Leon has submitted is not subject to j udicial notice under
Evidence Code section 452

. 5 Although s ection 45 2, subdivision (f), allows a court to take judicial notice of the law of foreign nations and pub lic entities in foreign nations, t he document does not purport or appear to be an excerpt o f a law of Mexico or any of its

states. Nor can we take judicial notice under section 452, subdiv ision (g) or (h). The

5 Evidence Code section 452 provides: “ Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: [¶] (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. [¶ ]

. . . [¶] (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. [¶]

. . . [¶] (f) The law of an organization of nations and of foreign nations and public entities in forei gn nations. [¶] (g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute. [¶] (h) Facts and propositions that are not reasonably subject to dispu te and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. ”17

document does not reflect matters of common knowledge not reasonably disputed or subject to immediate or accurate verification by indis putably reasonably accurate sources.
Because Leon did not present the document to the trial court and it is not a proper subject of judicial notice, we deny Leon ’ s request for judicial notice and his request that we correct his presentence custody credits based on that document.

DISPOSITION

The judgment is affirmed.

SEGAL, J. *

We concur:

PERLUSS, P. J.

WOODS, J.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution

.