Filed 9/8/14 P. v. Johnson CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B245460
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA054704)
v.
JEFFERY L. JOHNSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Kathleen Blanchard, Judge. Affirmed.
Robert Bryzman, under appointment 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, Linda C.
Johnson and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________
Jeffery L. Johnson appeals from the judgment on his conviction and sentence of
seven counts of second degree robbery in violation of Penal Code section 211 and two
counts of being a felon in possession of a firearm in violation of Penal Code section
12021, subdivision (a)(1). On appeal, Johnson contends that: (1) the trial court abused its
discretion in failing to conduct a Marsden hearing (People v. Marsden (1970) 2 Cal.3d
118 (hereafter Marsden)), and (2) the trial court erred in denying Johnson’s Faretta
request (Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562
(hereafter Faretta) as untimely. As we shall explain, the court did not abuse its discretion
in failing to conduct a Marsden hearing because the record does not establish that
Johnson clearly indicated he wished to replace counsel. Moreover, the court did not err
in denying Johnson’s Faretta request as untimely because it was within the trial court’s
discretion to deny a Faretta request made on the eve of trial. Accordingly, we affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Crimes
Four incidents make up the seven counts of second degree robbery alleged in the
information and amended information. During the first incident, Johnson entered a
service station with a female accomplice on East Avenue K, and pulled out a gun while
his accomplice took money from the cash register. Ten days later, Johnson and his
female accomplice grabbed all the cash out of the register of a sex shop after demanding
money from an employee. Nearly a week later, Johnson returned to the sex shop with his
female accomplice, pulled out a gun, and retrieved more than $400 from the cash register.
The fourth incident took place two nights later when Johnson and his female accomplice
entered a smoke shop in Palmdale. Johnson held a gun to an employee and took money
from the cash registers. The twosome then fled the scene in their car. During the
robbery, witness Brittney Birkmeyer ran out of the store with several other customers.
She got into a car with two friends and chased Johnson’s car for a mile or so until they
were able to call the police and report the car’s license plate number.
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The information further charged Johnson with two counts of being a felon in
possession of a firearm. Following the final robbery, a Sheriff’s deputy pulled over
Johnson. As Johnson exited his car, he knocked a handgun that was in his waistband
onto the ground. Deputies then arrested Johnson. Later, when officers searched
Johnson’s bedroom, they found a Tec 9 semi-automatic pistol, ammunition for the Tec 9,
and a case for the handgun Johnson discarded when arrested.
II. Johnson’s In Court Behavior
The court admonished Johnson for his disruptive behavior several times over the
course of the proceedings. At a pretrial proceeding on May 30, 2012, the court
admonished Johnson for raising his voice and interrupting the court. A few months later
at another pretrial proceeding, the court ordered Johnson removed from the courtroom
when he continued to interrupt and speak over the court after being admonished by the
court for this behavior.
On September 24, 2012, Johnson’s attorney, Robert Nadler, brought forward a
handwritten motion that Johnson had prepared himself. As Nadler was conceding, “I
haven’t actually completely reviewed it. But I understand it has something to with [sic]
inaccuracies—” Johnson interrupted, “It’s a Marsden motion.” Nadler proceeded to
inform the court that although he was not exactly sure what the motion contained, he
understood it to have something to do with inaccuracies in the preliminary hearing
transcript. Johnson then announced, “Transcripts been tampered with, my legal
procedures been violated, my due process, my 6th Amendment right. It’s all here.” The
court then admonished Johnson not to speak out in court or interrupt his attorney. Nadler
requested permission from the court to review the motion that evening. The court then
gave Nadler permission to review the motion and if he felt it was appropriate, to submit it
before trial began.1
1
Nadler did not file the handwritten motion and the motion is not included in the
record on appeal.
3
The court then asked Nadler if he was ready for trial, and as Nadler was replying
that he could be ready, Johnson interrupted his attorney and said, “No, we’re not.” The
court admonished Johnson to stop talking over the court and over his attorney. Johnson
again interrupted and the following exchange ensued:
“[Johnson]: He’s not my attorney.
“[Trial Court]: Yes, he is your attorney.
“[Johnson]: No, he’s not. I’m going pro-per. He’s not my attorney.”
The court told Johnson that all motions must go through his attorney and, if the
court were to consider a motion for Johnson to represent himself, Johnson needed to
understand that he would be held to the same standard of conduct as an attorney. The
court noted that it doubted Johnson could conduct himself properly because throughout
this proceeding he had continued to interrupt the proceedings.
After Nadler and the Deputy District Attorney announced they were ready for
trial, the court asked Johnson if he would be ready to go to trial within the next three days
if granted pro-per status. Johnson replied that he would not be ready. The court then
denied Johnson’s request for self-representation as untimely, saying: “We are absolutely
on the eve of trial. My supervising judge is here to assign this out as master calendar.
This case is extremely old, as I said. The request is now made at 3:35 on the day the trial
is going out and it is coupled with an absolute request to continue the case. And
therefore, I find it untimely.”
The case was promptly assigned to the same judge for trial, and jury selection
began the following day. Opening statements began on the afternoon of September 26,
2012, two days after Johnson asserted his Faretta motion and purported Marsden motion.
One week later, a jury convicted Johnson on all seven counts of robbery and both counts
of being a felon in possession of a firearm. This appeal followed.
DISCUSSION
I. Marsden Motion
Johnson contends the trial court abused its discretion by failing to conduct a
Marsden hearing after Johnson attempted to submit his handwritten motion. He argues
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that the court improperly delegated the determination of the merits of the motion to
defense counsel. We conclude the court did not abuse its discretion in failing to conduct
a Marsden hearing because Johnson did not make a sufficiently clear Marsden request.
We review the failure to conduct a Marsden hearing for an abuse of the trial
court’s discretion. (People v. Berryman (1993) 6 Cal.4th 1048, 1070; People v. Earp
(1999) 20 Cal.4th 826, 876.) A Marsden hearing is an informal hearing where the court
inquires into the defendant’s reasons for seeking substitute counsel and decides whether
current counsel’s performance has been so deficient as to require replacement by a
subsequent appointed attorney. (People v. Alfaro (2007) 41 Cal.4th 1277, 1320.) A trial
court’s duty to permit a defendant to state his reasons for dissatisfaction with his attorney
only arises when there is “at least some clear indication by defendant that he wants a
substitute attorney” or in other words “when the defendant asserts directly or by
implication that his counsel’s performance has been so inadequate as to deny him his
constitutional right to effective counsel.” (People v. Lucky (1988) 45 Cal.3d 259, 281, fn.
8; People v. Leonard (2000) 78 Cal.App.4th 776, 787 quoting People v. Molina (1977)
74 Cal.App.3d 544, 549.)
An attempted Marsden request is not sufficiently clear when the defendant uses
the term “Marsden,” but the circumstances suggest the defendant is attempting to make
an altogether different motion. For example, in People v. Carter (2010) 183 Cal.App.4th
522, 525-526, the defendant told the court, “I want a Marsden hearing.” However, after a
bit more discussion, the defendant clarified that he was actually seeking to represent
himself. (Ibid.) The court held that under these circumstances, the trial court was not
required to hold a Marsden hearing. (Id. at p. 528.)
Like the defendant in Carter, Johnson also used the term “Marsden” when the
surrounding circumstances suggested he was not in fact making a Marsden motion.
Although Johnson interrupted his attorney and claimed the document he was submitting
was a Marsden motion, Johnson’s attorney, who had at least taken a quick look at the
document, informed the court he understood the document to be a motion to correct
inaccuracies in the preliminary hearing transcript. Moreover, Johnson had an opportunity
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to correct his attorney and explain the contents of the handwritten motion his attorney
was submitting. Instead of saying, “I want a different lawyer,” Johnson declared,
“Transcripts been tampered with, my legal procedures been violated, my due process, my
6th Amendment right. It’s all here.”
In addition, the surrounding circumstances in this case further indicate that
Johnson did not intend to make a Marsden motion but instead intended to make a Faretta
motion for self-representation. Johnson made his Faretta motion for self-representation
immediately after the discussion about Johnson’s purported Marsden motion. In this
situation, where a defendant simply uses the term “Marsden” when the circumstances
otherwise suggest that the motion was instead to correct inaccuracies in the preliminary
hearing transcript or, alternatively, a motion for self-representation, the trial court was not
required to hold a Marsden hearing.
II. Faretta Motion
Johnson argues that the trial court erred in denying his Faretta motion as untimely,
and further, that the court abused its discretion by denying the motion without
considering the factors set forth in People v. Windham (1977) 19 Cal.3d 121. We
conclude the trial court did not err in denying Johnson’s Faretta motion because it was
within the court’s discretion to deny a Faretta motion made on the eve of trial.
Moreover, the record contains sufficient evidence to support an inference that the trial
court considered the Windham factors.
The court in Faretta held that a criminal defendant has a constitutional right to
self-representation if the decision to do so is made voluntarily and intelligently.
However, the law requires that requests for self-representation be made within a
reasonable time prior to the commencement of trial. (People v Windham, supra, 19
Cal.3d at p. 128 & fn. 5.) Thus, requests for self-representation made after this time are
subject to the discretion of the court. (Id. at p. 129 [The denial of an untimely Faretta
motion is reviewed as an abuse of the trial court’s discretion].) The appellant’s due
process right to counsel must then be weighed against the “orderly and speedy
determination of criminal charges.” (People v. Strozier (1993) 20 Cal.App.4th 55, 61.)
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“Motions made just prior to the start of trial are not timely.” (People v. Scott
(2001) 91 Cal.App.4th 1197, 1205.) For example, People v. Scott held that the trial court
did not err by denying the defendant’s Faretta motion as untimely when it was made four
days prior to the start of trial. (Ibid.) (See also 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]; People v. Ruiz (1983) 142 Cal.App.3d 780, 791 [Faretta
motion made six days before trial was untimely].)
Johnson’s Faretta motion was similarly untimely when it was made two days prior
to the start of trial and on the same day the supervising judge was going to assign the case
to a courtroom. Moreover, Johnson’s motion was made at a time closer to the start of
trial than the four, five, and six days that courts have determined are still an unreasonable
time to move for self-representation prior to trial. Although in Scott, Hill, and Ruiz the
cases had already been assigned to a courtroom, the record here indicates that the trial
judge knew that trial would begin within a period of three days. (People v. Scott, supra,
91 Cal.App.4th at p. 1204; People v. Hill, supra, 148 Cal.App.3d at pp. 750-752; People
v. Ruiz, supra, 142 Cal.App.3d at pp. 783-784.) Accordingly, the trial court did not err
by ruling the motion untimely.
Furthermore, Johnson’s argument that the trial court abused its discretion by
failing to consider the Windham factors is without merit. There is no requirement that the
court must explicitly cite the Windham factors or state its reasons for denying an untimely
request for self-representation. (People v. Windham, supra, 19 Cal.3d at p. 129, fn. 6;
People v. Bradford (2010) 187 Cal.App.4th 1345, 1354.) All that is required is that the
record reflect “sufficient reasons . . . to constitute an implicit consideration of these
factors.” (People v. Scott, supra, 91 Cal.App.4th at p. 1206.) Under Windham, the trial
court considers a number of factors when exercising its discretion to grant a request for
self-representation that is not made within a reasonable time prior to trial, including: (1)
the quality of counsel’s representation of defendant; (2) the defendant’s prior proclivity to
substitute counsel; (3) the reasons for the request; (4) the length and stage of the
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proceedings; and (5) the disruption or delay which might reasonably be expected to
follow the granting of the motion. (People v. Windham, supra, 19 Cal.3d at p. 128.)
Here, the record reflects sufficient evidence of each of these factors. First, it
appears that Nadler’s representation of Johnson was of a satisfactory quality. Johnson’s
only complaint about Nadler’s representation was that he failed to show up to a pretrial
proceeding and sent another attorney in his place. Furthermore, there is no showing that
Nadler was incompetent in any respect. In fact, Nadler brought Johnson’s handwritten
motion to the court’s attention and filed his own Romero motion (People v. Romero
(1996) 13 Cal.4th 497) with the court. Thus, it does not appear that the quality of
Nadler’s representation was a factor pointing towards the need for Nadler’s dismissal.
Moreover, although Johnson had not shown a prior proclivity to substitute counsel, “this
factor alone does not undermine the court’s conclusion that to grant the motion would
unjustifiably delay trial or obstruct the orderly administration of justice.” (People v.
Burton (1989) 48 Cal.3d 843, 854.)
The court further explicitly considered that the trial was set to be immediately sent
out for assignment to a courtroom; the case was very old; that it was doubtful Johnson
could comport himself appropriately acting in propria persona as a result of his prior
outbursts; and that Johnson would require a continuance if the Faretta motion was
granted which would certainly have delayed the upcoming trial. Considering the facts in
their totality, it was reasonable for the trial court to conclude that Johnson’s request to
represent himself was made for the purpose of delaying trial when it was made for the
first time just a few days before trial was to begin and when it was coupled with a request
for a continuance. Accordingly, sufficient evidence exists to support an inference that the
trial court considered the Windham factors and therefore did not abuse its discretion. In
light of the foregoing, the court did not err in denying Johnson’s Faretta motion.
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DISPOSITION
The judgment is affirmed.
WOODS, J.
We concur:
PERLUSS, P. J.
SEGAL, J.*
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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