Filed 1/29/21 P. v. Vigil CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B301572
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA085228)
v.
PEDRO ANTONIO VIGIL,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of Los
Angeles County. Richard Kirschner, Judge. Affirmed.
Carlos A. Lloreda, Jr., for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Pedro Antonio Vigil was convicted
of 10 sex offenses against his two minor daughters and sentenced
to 25 years to life. Defendant contends the trial court erred in
failing to rule on his request to represent himself and in failing to
determine if he qualified to have substitute counsel appointed.
Defendant also contends the court erred in denying his
postverdict request for juror information.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by information with five counts of
committing a lewd act upon a child (Pen. Code, § 288, subd. (a);
counts 1–5), one count of sexual intercourse or sodomy with a
child 10 years old or younger (§ 288.7, subd. (a); count 6), and
four counts of oral copulation or sexual penetration of a child
10 years old or younger (§ 288.7, subd. (b); counts 7–10). As to
counts 1 through 5, a multiple victim special circumstance was
alleged (§ 667.61, subds. (b) & (e)).
The charges were filed after an investigation of reports by
defendant’s two minor daughters who described numerous acts of
sexual abuse by their father.
Defendant, represented by privately retained counsel, pled
not guilty to all charges.
Shortly before trial, defendant filed a four-page
handwritten document requesting substitution of counsel.
Defendant asserted he was not receiving effective assistance from
his retained lawyer. He said his lawyer had “ignored valuable
information,” failed to meet with him in jail to discuss his defense
and pressured him to take a deal from the prosecution.
Defendant also said his family had already paid $30,000 and the
attorney was asking for another $10,000 to handle the trial
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despite having done “practically nothing.” Defendant concluded
by saying he needed to replace his current lawyer with someone
who would “defend [him] to the fullest extent of the law” or he
would “go ‘Pro-per.’ ”
At a hearing two weeks before the scheduled trial date, the
court explained to defendant that since he had a privately
retained lawyer, a hearing for substituted appointed counsel
pursuant to People v. Marsden (1970) 2 Cal.3d 118 was not
necessary. The court explained, “[h]owever, if you wish to
discharge your lawyer and hire a new lawyer, you are able to do
that if that’s something you want to do, and if you want to
represent yourself in this matter, you can do that as well.”
The court then specifically asked defendant, “Do you want
to represent yourself in this matter?” Defendant did not answer
the court’s question except to repeat he was dissatisfied with his
lawyer, and he asked the court to “assign” him an attorney.
The court told defendant he had “the right to retain
another lawyer if you wish, or a lawyer could be appointed for
you.” When the court asked defendant if he had contacted any
lawyers to substitute in, defendant said, “No, not yet.”
The court asked defendant if he had “any other requests”
and defendant said no. Defendant never asked the court to
appoint the public defender to represent him.
The court then briefly explained that because it was almost
the eve of trial, it was not inclined to grant a continuance for the
purpose of starting to look for a new lawyer. However, the court
told defendant that if he obtained a new lawyer, the court would
entertain any reasonable requests to continue the trial at that
time.
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The case proceeded to trial as scheduled with defendant
represented by his retained attorney.
The jury found defendant guilty as charged.
The parties appeared for sentencing on July 24, 2019. The
court advised the parties it had been contacted by one of the
jurors who had offered to pay for tickets to Disneyland for
defendant’s two daughters. While the parties were discussing the
matter, new counsel appeared (Attorney Lloreda) and stated on
the record that he was substituting in as defendant’s counsel.
Defendant’s trial counsel (Attorney Nadler) was allowed to
withdraw. Attorney Lloreda, after speaking with defendant,
advised the court that the offer from the juror was rejected.
Defendant’s request for a continuance of the sentencing hearing
was granted.
Citing the anonymous juror offer of Disneyland tickets,
defendant filed a petition asking the court to unseal the juror
identification information so he could investigate the possibility
of juror misconduct during deliberations. The prosecutor filed
written opposition. The court denied defendant’s request, finding
defendant’s claim was speculative and no good cause had been
shown.
Thereafter, the court sentenced defendant to 25 years to
life on count 6, the base count. The court imposed concurrent
terms of 15 years to life on each of the remaining nine counts.
The court imposed a protective order in favor of the two minor
victims and imposed various statutory fines and fees. Defendant
was awarded 981 actual days of presentence custody credits.
This appeal followed.
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DISCUSSION
Defendant first contends the trial court erred in failing to
rule on his request to proceed in propria persona. “In
determining on appeal whether the defendant invoked the right
to self-representation, we examine the entire record de novo.”
(People v. Dent (2003) 30 Cal.4th 213, 218.)
A request to proceed in propria persona must be clear and
unequivocal. A criminal defendant’s right of self-representation
is waived unless the defendant “ ‘ “articulately and unmistakably
demand[s] to proceed pro se.” ’ ” (People v. Danks (2004)
32 Cal.4th 269, 295.) In order to protect the Sixth Amendment
right to counsel, “one of the trial court’s tasks when confronted
with a motion for self-representation is to determine whether the
defendant truly desires to represent himself or herself.” (People
v. Marshall (1997) 15 Cal.4th 1, 23.) In so doing, “courts must
draw every inference against supposing that the defendant wishes
to waive the right to counsel.” (Ibid., italics added.) Courts
“should evaluate not only whether the defendant has stated the
motion clearly, but also the defendant’s conduct and other words.
Because the court should draw every reasonable inference
against waiver of the right to counsel, the defendant’s conduct or
words reflecting ambivalence about self-representation may
support the court’s decision to deny the defendant’s motion. A
motion for self-representation made in passing anger or
frustration, an ambivalent motion, or one made for the purpose of
delay” may be denied without running afoul of the constitution.
(Ibid.)
Defendant here did not make a clear and unequivocal
demand to represent himself at trial. Defendant made only one
brief reference in the document he submitted to the court to
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“go[ing] ‘Pro-per’ ” if he could not get a new lawyer. Defendant’s
focus, both in the written document and at the hearing, was on
his dissatisfaction with his retained lawyer, not any demand to
represent himself. When the court directly asked him if he
wanted to represent himself, defendant did not say “yes”; instead,
he repeated that he wanted new counsel. At no time did he say
he wanted to represent himself.
Defendant also argues the court should have inquired as to
whether he qualified to have appointed counsel. Defendant never
suggested he could not afford to pay for the retained counsel of
his choice. He expressed frustration in the document he filed
with the court that his lawyer asked for more money to proceed to
trial, but only in the context of underscoring the lawyer had
already been paid $30,000 and had not done satisfactory work.
Defendant never said he was indigent or suggested it had become
a financial burden or hardship for him to pay for private counsel.
The court told defendant a lawyer could be appointed to
represent him, but defendant did not ask to be represented by the
public defender. The dissent finds the trial court “abdicated its
obligations to inquire about indigency,” but defense counsel
expressly disavowed at oral argument that defendant was
indigent or sought appointment of the public defender.
Finally, defendant contends the court erred in denying his
postverdict request to obtain juror information. A trial court’s
ruling on a motion for juror information pursuant to Code of Civil
Procedure section 237 is reviewed under the deferential abuse of
discretion standard. (People v. Jones (1998) 17 Cal.4th 279, 317;
People v. Johnson (2013) 222 Cal.App.4th 486, 492.) There is no
showing of abuse here.
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A motion for juror information must be supported by a
showing of good cause. (Code Civ. Proc., § 237, subd. (b) [“The
petition shall be supported by a declaration that includes facts
sufficient to establish good cause for the release of the juror’s
personal identifying information.”].) Even if good cause is shown,
the request shall be denied “if there is a showing on the record of
facts that establish a compelling interest against disclosure.”
(Ibid.)
Defendant’s motion consisted of a two-page declaration of
counsel stating his need to investigate the circumstances of what
led a juror to contact the district attorney’s office and offer to pay
for tickets to Disneyland for defendant’s two daughters. He said,
“It is imperative that these jurors be questioned in order to
fathom just exactly what took place, including the circumstances
of the juror’s call to the D.A., and what possible prejudice my
client has suffered as a result.”
However, the juror did not call or otherwise contact the
district attorney’s office. The court told counsel a juror had
contacted the court, not the prosecutor, to make the offer after
being dismissed postverdict. Defendant’s motion rested on a
mischaracterization of the facts and speculation. The court acted
well within its discretion in determining that good cause had not
been shown.
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
I CONCUR:
BIGELOW, P. J.
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STRATTON, J., Dissenting.
No good deed goes unpunished. Or perhaps the court and
appellant were two ships passing in the night. What may have
been the trial court’s attempt to patiently counsel appellant
resulted in an abdication of the court’s duty to ensure appellant’s
unequivocal exercise of his right to represent himself was
knowing and voluntary. The trial court also violated appellant’s
right to counsel of his choice and his right to an inquiry into his
indigence. These facts also show the mischief which may result
when a Faretta1 request is made in tandem with a request for
substitution of counsel.
Three issues were implicated by appellant’s motion: his
right to discharge his retained counsel; his right to substitute
appointed counsel; and his right to represent himself. The trial
court violated the last two by failing to rule on appellant’s
requests. I dissent because the trial court failed to discharge its
duties, ignoring appellant’s clear and unequivocal requests for
appointment of counsel, or, in the alternative, permission to
proceed pro se.
A request to proceed pro se which is equivocal, untimely,
insincere, made out of frustration, under a cloud of emotion, on a
momentary caprice or for purposes of delay; or made by someone
not competent to self-represent may be denied. (People v. Butler
(2009) 47 Cal.4th 814, 825.) However, barring such
circumstances, once an unequivocal, timely request is made, the
trial court’s duty is to advise the defendant of the dangers and
disadvantages of self-representation to assure that the choice is
1 (Faretta v. California (1975) 422 U.S. 806 (Faretta).)
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made “ ‘with eyes open’ ” and to rule on the request. (Faretta,
supra, 422 U.S. at p. 835.)
Similarly, a non-indigent defendant has the right to
discharge retained counsel with or without cause. That right,
however, is not absolute. The trial court may deny such a
discharge motion if discharge will result in “ ‘significant
prejudice’ to the defendant [citation], or if it is not timely, . . . will
result in ‘disruption of the orderly process of justice.’ ” (People v.
Ortiz (1990) 51 Cal.3d 975, 983 (Ortiz); People v. Lara (2001)
86 Cal.App.4th 139, 153 (Lara).) The court must exercise its
discretion reasonably. “[W]e have never required a nonindigent
criminal defendant to make [a showing of conflict or inadequate
representation] in order to discharge his retained counsel.”
(Ortiz, at p. 984.)
Finally, an indigent defendant has the absolute right to
appointed counsel. (Gideon v. Wainwright (1963) 372 U.S. 335.)
The procedure to appoint counsel is set out in Penal Code section
987.2 and Government Code section 27707. It is the trial court’s
ultimate responsibility to determine indigence, but the public
defender renders services to any person it determines to be
indigent until such time a contrary decision is made by the court.
(People v. Longwith (1981) 125 Cal.App.3d 400, 411, disapproved
on other grounds, People v. Barnum (2003) 29 Cal.4th 1210; Gov.
Code, § 27707.)
Here, one month before the trial date, appellant filed a
written motion requesting discharge of his retained counsel or, in
the alternative, the right to proceed pro se if the first request was
denied. The motion was entitled, “Defendant’s Motion to
Substitute Counsel [Marsden] dated April 15, 2019.” In the
motion appellant stated his family “has paid my present attorney
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nearly $30,000[] in the past year . . . and has practically nothing
to contribute to my defense. . . . And now he is asking for an
additional $10,000[] to take me to trial.” After listing his
complaints about counsel, appellant stated, “I need an attorney
who will defend me to the fullest extent of the law, or I will go
‘Pro-Per.’ ” The trial court did not find the motion was untimely,
equivocal, insincere, made on a whim or for purposes of delay.
Nor did the trial court find appellant not competent to represent
himself. Instead, the record shows the trial court embarked on a
colloquy with appellant that most likely misled him and surely
missed the mark. Then, after the colloquy, the trial court made
no ruling on either request and instead denied appellant’s oral
motion (a motion he did not make) to continue the trial date.
The trial court commenced the hearing with a statement
that the parties were in court because appellant wrote a letter
“indicating that you were dissatisfied with your retained lawyer
and indicated that perhaps you wanted to represent yourself.
That’s the reason for this hearing today.” The court first took up
the issue of retained counsel and dogmatically informed
appellant it could not discharge his retained attorney in the same
way it could relieve appointed counsel via a Marsden2 hearing.
This is true. The trial court then told appellant he could
discharge retained counsel himself. But advising appellant he
could discharge counsel did not join the issue and moreover was
not completely accurate. As Ortiz and Lara hold, the right to
discharge retained counsel is not absolute and requires the court
to exercise its discretion. The trial court misled appellant by
2 People v. Marsden (1970) 2 Cal.3d 118.
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telling him he could basically “do it himself” when, in reality, the
final decision rested in the court’s discretion. Then, without
making an express ruling, the trial court appeared to deny
appellant’s request to discharge his retained counsel without
making the findings required by Ortiz and Lara. At best, the
court’s action could be construed as deferring a ruling. While the
court talked about the importance of keeping the set trial date, it
also volunteered to grant a continuance if appellant came in with
newly retained counsel. From this I infer the trial court had no
qualms about appellant’s sincerity in making his request to be rid
of retained counsel and did not believe there was an efficient
administration of justice issue looming on the horizon.
While it may have made sense for the court to defer
discharge of counsel until there was newly retained counsel
actually in the courtroom ready to take on appellant’s
representation, in so proceeding the court ignored appellant’s
immediate second request for “assigned” counsel. As soon as the
trial court informed appellant he could fire his lawyer himself,
appellant himself asked the court to “assign” him new counsel
and reiterated his concerns about counsel’s preparedness.
Appellant had advised the court in his motion that his
family had paid his attorney fees. As we know, payment of fees
by relatives does not alter a defendant’s indigency. (Tran v.
Superior Court (2001) 92 Cal.App.4th 1149, 1154.) Orally,
appellant directly asked the court to “assign” counsel. The trial
court actually told appellant “a lawyer could be appointed for
you” but inexplicably changed the subject and never followed up.
Appellant should not have been treated any differently than any
other defendant who requests appointment of counsel. The trial
court should have invoked Penal Code section 987.2. It was put
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on notice that appellant was not the one paying retained counsel.
Instead, the court repeated its inability to replace private counsel
because appellant was dissatisfied with his services, reiterated
appellant could hire a different lawyer, and switching subjects,
inquired of appellant what efforts he had made to locate new
retained counsel to substitute in, telling appellant (gratuitously,
because appellant had not asked for a continuance) that if he
brought in new retained counsel, the court would grant a
continuance for new counsel to prepare. While deferring the
request to discharge retained counsel may have been efficient,
contrary to its duty the trial court ended up failing to rule on
appellant’s request for “assigned” counsel, to make any findings,
or to inquire at all about indigence.
Then, after seemingly denying appellant’s request to
discharge counsel, the trial court asked appellant, “[I]f you want
to represent yourself in this matter, you can do that as well. [¶]
Do you want to represent yourself in this matter?” Appellant did
not answer the question posed, instead continuing the
conversation the court had initiated about his primary request to
substitute counsel. He asked the court to “assign” him a new
attorney. The People argue appellant’s non-response shows he
had abandoned his Faretta request. I disagree.
Like the other explicit requests, the reporter’s transcript
reflects the trial court never ruled on the Faretta request. Yet,
the clerk issued a minute order that “[d]efense oral motion to
continue to obtain new counsel is denied” and defendant “does
not want to proceed in propria persona.” The reporter’s
transcript shows no oral motion to continue the trial nor a
withdrawal of the request to appear pro se. The reporter’s
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transcript governs. (Cf. People v. Washington (1994) 95
Cal.App.2d 454.)
On this record the majority concludes appellant’s request
was “equivocal.” I disagree as well. There is nothing in the
record that supports the conclusions that appellant was
“equivocal” or, for that matter, abandoned his Faretta request.
Appellant’s request was made in writing and states: “I need an
attorney who will defend me to the fullest extent of the law or I
will go ‘Pro-Per’.” There is little doubt appellant probably
preferred being represented. He persisted in inquiring about
getting “assigned” counsel after the court said it had no power to
discharge retained counsel. “Conditioning” the request to go pro
se on the denial of his motion to substitute counsel does not make
the request equivocal. (People v. Joseph (1983) 34 Cal.3d
936, 944, fn. 3 [motions to relieve counsel and to proceed pro se
are often “tagged” together yet that coupling does not vitiate the
fact that they are two separate motions].) Indeed, the trial court
here, as in People v. Joseph, acknowledged there were two
separate requests. For two separate requests, appellant was
entitled to two separate rulings.
Moreover, in adhering to the subject of substitution of
counsel rather than immediately pivoting to his secondary
request to represent himself, appellant logically followed the
colloquy initiated by the trial court. When the court said it could
not relieve retained counsel, appellant followed up with a request
for “assigned” counsel. That appellant did not immediately
answer the court’s out-of-context question “Do you want to
represent yourself” can hardly be deemed a waiver or
abandonment of his very explicit and timely request to proceed
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pro se if he could not be rid of retained counsel. By rights he
needed an answer to his first two requests first.
Nor can or should appellant’s failure to return to the
question render his request equivocal or abandoned. It is the
trial court’s obligation to act on requests for self-representation,
not to change the subject. To put the onus on a defendant to re-
raise an issue where, as here, the trial court led the inquiry into
other areas not even raised by appellant without circling back to
appellant’s only remaining request— to go pro se—penalizes the
defendant for following the lead of the trial court. Faretta does
not hold that a defendant must repeat his specific request
multiple times—even at the cost of interrupting or contradicting
the court—to stave off a finding of abandonment or equivocation.
Perhaps that should be the case when the trial court actively
engages a defendant in discussing the pro se request itself. But
that did not happen here.
Further, I find the court’s persistence in returning to the
question whether appellant was going to look for new retained
counsel rendered it likely appellant perceived self-representation
was not an available option in that courtroom. (People v. Dent
(2003) 30 Cal.4th 213, 219 [defendant is not obliged to clarify that
he was, indeed, making a Faretta motion where trial court denied
it on erroneous grounds, leading defendant to perceive self-
representation was not an option].)
We have a primer on what “equivocation” means in this
context. In People v. Marshall (1977) 15 Cal.4th 1, our Supreme
Court gave some examples: a mere impulsive response to the
denial of a request for new counsel; a momentary caprice; the
result of thinking out loud; a spur of the moment decision;
impromptu disappointment in, or passing anger at, the court’s
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denial of a request to substitute counsel; demonstrated
vacillation between wanting counsel and wanting to go pro se;
acts creating any ambiguity as to the desire to self-represent.
(Id. at pp. 23–24.) The court considers not just the defendant’s
words, but also his actions. As the Marshall court stated, the
court must determine “ ‘ “whether a defendant genuinely means
what he says.” ’ ” (Id. at p. 23.) The record here is devoid of any
indication that appellant’s request resembles these examples.
Indeed, it is remarkably silent in this regard.
It is the duty of the trial court, not the defendant, to direct
the Faretta inquiry so as to make the appropriate record that the
defendant acts “with eyes open.” This behooves all courts not to
blithely dismiss, without inquiry, explicit Faretta requests. It
also behooves us not to find that such requests, without further
inquiry by the trial court, are equivocal or abandoned. The trial
wrongly deflected appellant’s requests to obtain appointed
counsel and to proceed pro se. It abdicated its obligations to
inquire about indigence and to embark on Faretta advisements,
causing appellant to be represented at trial by counsel not of his
choice. Because such errors are prejudicial per se (People v.
Joseph, supra, 34 Cal.3d at p. 948; Lara, supra, 86 Cal.App.4th at
p. 153), I would reverse the convictions.
STRATTON, J.
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