P. v. Behbahani CA4/1

Filed 5/15/13 P. v. Behbahani 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D059705

Plaintiff and Respondent,

v. (Super. Ct. No. SCD223358)

MOHAMMAD BEHBAHANI,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Laura H.

Parsky, Judge. Affirmed as modified.

Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Charles C.

Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
 In a second trial, a jury convicted Mohammad Behbahani of the unlawful

possession of an assault weapon (former Pen. Code, § 12280, subd. (b)). The imposition

of sentence was suspended pending his successful completion of 18 months of formal

probation.

On appeal, Behbahani contends the trial court erred by granting his motion under

Faretta v. California (1975) 422 U.S. 806 (Faretta motion) to represent himself, without

first conducting a hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden

motion) to determine why he was dissatisfied with his appointed counsel, and whether

new counsel should be appointed, and by conditioning his right of self-representation on

no continuance of trial. Further, he challenges a probation condition requiring the

probation officer's approval of his choice of residence and employment as overbroad and

unconstitutional. We agree with the latter point and modify the probation order to strike

these particular conditions. In all other respects, we affirm the judgment.

FACTS

On October 8, 2009, Detective Jethro Hudgins of the San Diego Police

Department, with a team of police officers and investigators, went to a residence in the

Scripps Ranch area of San Diego to conduct a welfare check. Behbahani came out of the

house, and after a brief discussion, he invited Hudgins and others into the house.

Detective Hudgins asked Behbahani if there were guns in the house. Behbahani said

there were four guns present. Behbahani showed Detective Hudgins the guns, including

a rifle in a zippered case, which Behbahani referred to as an AK-47, along with two

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loaded magazines. Behbahani produced a receipt for the rifle, which was actually a

Norinco MAK-90, a semiautomatic rifle.

DISCUSSON

I

Validity of Behbahani's Waiver of Right to Counsel

A

Behbahani contends the trial court committed reversible error by granting his

Faretta motion without first conducting a Marsden hearing to give him a meaningful

opportunity to specifically explain why he was dissatisfied with his appointed counsel,

and determining whether he would rather have new appointed counsel than self-

representation. We find the contention unconvincing.

" 'A defendant in a criminal case possesses two constitutional rights with respect to

representation that are mutually exclusive.' [Citation.] '[T]he Sixth Amendment

guarantees a defendant a right to counsel but also allows him to waive this right and to

represent himself without counsel.' " (People v. Sullivan (2007) 151 Cal.App.4th 524,

545.) "In Faretta, the United States Supreme Court declared that a defendant 'must be

free personally to decide whether in his particular case counsel is to his advantage,' even

though 'he may conduct his own defense ultimately to his own detriment . . . .' [Citation.]

Thus, a state may not 'constitutionally hale a person into its criminal courts and there

force a lawyer upon him, even when he insists that he wants to conduct his own

defense.' " (People v. James (2011) 202 Cal.App.4th 323, 329.)

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 "A criminal defendant may not waive his right to counsel, however, 'unless he

does so "competently and intelligently," [citations].' [Citation.] 'The right to

representation by counsel persists until a defendant affirmatively waives it, and courts

indulge every reasonable inference against such waiver.' [Citation.] '[T]he waiver of

counsel must be knowing and voluntarythat is, the defendant must "actually . . .

understand the significance and consequences" of the decision, and the decision must be

"uncoerced" [citations].' " (People v. Sullivan, supra, 151 Cal.App.4th at p. 545.)

" ' "When confronted with a request" for self-representation, "a trial court must

make the defendant 'aware of the dangers and disadvantages of self-representation, so

that the record will establish that "he knows what he is doing and his choice is made with

eyes open." ' [Citation.] . . . " [Citation.]' [Citations.] 'In order to deem a defendant's

Faretta waiver knowing and intelligent,' the trial court 'must insure that he understands

1) the nature of the charges against him, 2) the possible penalties, and 3) the "dangers and

disadvantages of self-representation." [Citation.]' [Citation.] The admonishments must

also 'include the defendant's inability to rely upon the trial court to give personal

instruction on courtroom procedure or to provide the assistance that otherwise would

have been rendered by counsel. . . . .' [Citation.]" (People v. Sullivan, supra, 151

Cal.App.4th at pp. 545-546.)

" 'A defendant may challenge the grant of a motion for self-representation on the

basis the record fails to show the defendant was made aware of the risks of self-

representation.' [Citation.] ' "Whether there has been a waiver is a question of fact."

[Citation.]' [Citations.] 'The burden is on the defendant to demonstrate he did not
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knowingly and intelligently waive his right to counsel.' [Citations.] On appeal, the

courts 'review the entire recordincluding proceedings after the purported invocation of

the right of self-representationand determine de novo whether the defendant's

invocation was knowing and voluntary.' " (People v. Sullivan, supra, 151 Cal.App.4th

at pp. 546-547.)

The following procedural background is relevant. At his arraignment on

October 19, 2009, Behbahani appeared with retained counsel and pleaded not guilty to

the weapon charge. On February 3, 2010, Behbahani requested to represent himself. The

court asked Behbahani if he wanted to obtain new counsel, and he initially said no. He

then said he was "just fed up with his lawyer." The court advised Behbahani that in its

view he would be better off with an attorney. It offered to continue the preliminary

hearing to March 15, 2010, to give him time to retain another attorney, and he accepted

the offer.

On March 15, 2010, the court called the Behbahani matter, and he was not present.

His retained attorney explained Behbahani had fired him, and the court relieved him as

attorney of record. Behbahani showed up late and requested appointed counsel, and the

court granted the request. On March 18, 2010, the court appointed a public defender for

Behbahani.

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 At a readiness conference on October 26, 2010, Behbahani again requested to

represent himself. He presented the court with a Lopez waiver,1 but he had not initialed

the paragraph acknowledging a maximum prison term of three years. He advised the

court he was not prepared to initial that paragraph, and the court denied his request

because he had not given "an unambiguous complete waiver."

On December 9, 2010, the first day of trial, Behbahani again requested to

represent himself. The court denied the request. The jury was unable to reach a

unanimous verdict (11 to 1 for conviction) and on December 16, 2010, the court declared

a mistrial.

On December 22, 2010, Deputy Public Defender Michael Ruiz represented

Behbahani at a scheduling hearing. The court set a readiness conference for February 23,

2011, and trial for March 2, 2011.

At the readiness conference, Behbahani again requested to represent himself. He

advised the court he had signed a Lopez waiver. The court noted, "We are one week from

the trial date," and his appointed counsel responded, "Mr. Behbahani is well aware of

that. He's prepared to go to trial next week." Behbahani stated, "The lawyer is not

willing to tell the truth, and I want to tell the truth." The following colloquy then took

place:

1 "In People v. Lopez (1977) 71 Cal.App.3d 568, 571 . . . , the court suggested a set
of advisements 'designed to ensure a clear record of a defendant's knowing and voluntary
waiver of counsel.' " (People v. Goodwillie (2007) 147 Cal.App.4th 695, 705, fn. 5.)

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"THE COURT: Mr. Behbahani, I'm handed this form. It's a form
called Acknowledgment Regarding Self-Representation and Waiver
of Right to Counsel. We sometimes call it a Faretta or Lopez
waiver. It appears to bear some initials in all but one box, and it
appears to bear your signature. Did you read this form?

"THE DEFENDANT: Yes.

"THE COURT: Did you understand everything in it?

"THE DEFENDANT: Yes.

"THE COURT: Did you sign it?

"THE DEFENDANT: Yes.

"THE COURT: This form tells you the followingIt tells me, in
fact, that you wish to exercise your constitutional right to represent
yourself without the help of a lawyer. Is that what you're asking to
do?

"THE DEFENDANT: Yes. The lawyer is not willing to tell the
truth, and I want to tell the truth.

"THE COURT: Well, my question is, regardless of your reason,
you're telling me clearly and unequivocally that you want to
represent yourself; is that correct?

"THE DEFENDANT: In that circumstances, yes.

"THE COURT: Don't tell me about that circumstance. Do you want
a lawyer or do you want to represent yourself?

"THE DEFENDANT: I want to represent myself.

"THE COURT: Thank you. You understand that you have the right
to an appointed lawyer, and in fact you have one right now. You
understand you have the right to a lawyer?

"THE DEFENDANT: Yes.

"THE COURT: By representing yourself, you give up that right?

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"THE DEFENDANT: Yes.

"THE COURT: You're charged in this case with one count of
violation of . . . Section 12280(b). This is sometimes called
possession of an assault weapon. It is a felony. It carries a
maximum penalty of three years in state prison, a fine of $20,000,
and a period of parole that could last as long as four years. Do you
understand that?

"THE DEFENDANT: No.

"THE COURT: What don't you understand about that?

"THE DEFENDANT: Is California Penal Code for the first time I
sold the weapons if I'm convicted I'm going to be on probation $500
fine?

"THE COURT: That is not correct. If you are convicted, a judge
may send you to state prison for three years. Do you understand
this?

"THE DEFENDANT: I don't know that's the law you're saying

"THE COURT: Do you understand that I am telling you that the law
is that if you get convicted, a judge may send you to state prison for
16 months, two years, or three years? Do you understand that that is
what I'm telling you?

"THE DEFENDANT: I'm not sure. The way you're explaining,
maybe that is.

"THE COURT: Well, let's put it this way. One of the risks that you
are taking, sir, by representing yourself, is that if you are found
guilty and if a judge thinks it is appropriate, a judge can send you to
prison for three years. The risk is that you are taking is that every
judge in this courthouse is going to read the law the same way I'm
reading it and will be saying, 'Yes, I can send you to prison for three
years if you are convicted.' Do you understand that is the risk that
you are taking?

"THE DEFENDANT: I've been told.

"THE COURT: You understand that, yes?
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 "THE DEFENDANT: Yes."

Further questioning revealed that Behbahani holds a Ph.D., in nuclear engineering,

he is a business owner, and he is literate in English. Additionally, the court warned

Behbahani about the dangers of self-representation, as follows: "Do you understand that

it is almost always unwise for you to represent yourself, for any person to represent

himself, and most people who represent themselves end up conducting their cases in a

way that turns out to be harmful to their interests. Do you understand that?" Behbahani

responded, "I understand what you're saying. It's a very bad choice, but I have no other

choice."

The court proceeded to advise Behbahani it would not give him any legal advice

or special treatment just because he was representing himself, and it would hold him to

the same standards as an attorney. Further, the court explained "the prosecutor may be

represented by a very experienced and skilled lawyer[,] [s]o it would be like you getting

in the ring with Mike Tyson." Behbahani said he understood.

Behbahani does not challenge the sufficiency of the court's advisements during the

Faretta motion. Rather, he asserts his responses to the court's questioningthat "[t]he

lawyer is not willing to tell the truth, and I want to tell the truth," and that self-

representation was "a very bad choice, but I have no other choice," put the court on

"notice that [he] believed the only way he could present the jury with the truth was to

have substitute counsel, and his only option was self-representation." In Behbahani's

view, his comments triggered the court's duty "to conduct a Marsden hearing, and the

court's failure to inquire led to [his] ineffectual waiver of his right to appointed counsel."
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 "When a criminal defendant seeks substitution of counsel on the ground that

appointed counsel is providing inadequate representation, a trial court must give the

defendant an opportunity to explain the reasons for the request. [Citations.] Although no

formal motion is necessary, there must be 'at least some clear indication by defendant that

he wants a substitute attorney.' " (People v. Mendoza (2000) 24 Cal.4th 130, 156-157,

italics added, citing Marsden, supra, 2 Cal.3d at pp. 123-125; People v. Lucky (1988) 45

Cal.3d 259, 281, fn. 8.) "[T]he trial court's duty of inquiry is triggered only when the

nature and degree of defendant's dissatisfaction amounts to an '[assertion] 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. Cruz (1978) 83 Cal.App.3d 308,

316 (Cruz).)

We disagree that Behbahani's statements constituted a clear indication he wanted

substitute counsel, or that he was accusing his appointed attorney of ineffective

assistance. Ordinarily, a "request for self-representation does not trigger a duty to

conduct a Marsden inquiry [citation] or to suggest substitution of counsel as an

alternative." (People v. Crandall (1988) 46 Cal.3d 833, 854-855.) "Requests under both

Marsden and Faretta must be clear and unequivocal; the one does not imply the other."

(People v. Rivers (1993) 20 Cal.App.4th 1040, 1051, fn. 7.)

Moreover, Behbahani would have been aware of his right to substitute counsel,

because he had previously brought a Faretta motion, in which he agreed with the trial

court's assessment that he would be better off with counsel, and he accepted the court's

offer to continue the matter for three weeks so he could obtain new counsel. He

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ultimately replaced his retained attorney with a court-appointed attorney rather than

opting for self-representation. Behbahani could have sought another substitution, but he

chose not to. We conclude the court had no duty to conduct a Marsden hearing.

Behbahani submits that Cruz, supra, 83 Cal.App.3d 308, is directly on point and

shows he did not effectively waive his right to counsel. In Cruz, the defendant's

appointed counsel advised the court he wanted to represent himself because he had "a

general conflict of interest with the public defender's office." (Id. at p. 316.) The

defendant responded, "In the past I have been represented by the public defender's office

and each and every time the record will show there's never been any investigation into the

cases I've had, there's been nothing as far as anything I've asked them to do, certain things

and they said, no, there is no such thing. And we just got a definite conflict. [¶] I wrote

a letter to the public defender's office and I got a letter back stating, well, that I

shouldn't . . . look to them for any more assistance and so forth." (Id. at p. 317.) At the

continued hearing, the defendant stated, " 'Because of what has taken place since this

[sic] proceedings in this matter started, beginning in Municipal Court, I cannot and do not

accept Public Defender as counsel.' " (Ibid.)

The appellate court held the trial court should have inquired further into the

defendant's claims before allowing him to represent himself, explaining the record

indicated the defendant's request for self-representation "was based on a lack of viable

alternatives." (Cruz, supra, 83 Cal.App.4th at p. 318.) Cruz is unhelpful, because there

is no suggestion Behbahani had any system-wide conflict with the public defender's

office or that believed he lacked access to another competent appointed counsel.

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 This case is more akin to People v. Mendoza (2000) 24 Cal.4th 130, in which the

defendant sought to represent himself for the stated reasons, "I feel I'm not getting a

defense," "I don't know anything about my case," and "I haven't had a chance to" speak to

appointed counsel. (Id. at pp. 155-156.) Our high court rejected the defendant's

contention a Marsden inquiry was necessary based on these "fleeting reference[s] to

dissatisfaction with counsel." (Id. at p. 157.) The court explained, "Given defendant's

insistence on self-representation, the trial court was under no obligation to conduct an

inquiry into any dissatisfaction defendant might have with his appointed counsel so as to

necessitate substitution of counsel." (Id. at p. 157.) We arrive at the same conclusion

here.

B

Alternately, Behbahani contends reversal is required because the court conditioned

its grant of his Faretta motion on his foregoing a continuance of trial. Again, we

disagree.

"[T]o invoke an unconditional right of self-representation, the defendant must

assert the right 'within a reasonable time prior to the commencement of trial.' [Citations.]

A motion made after this period is addressed to the sound discretion of the trial court.

[Citations.] [¶] The 'reasonable time' requirement is intended to prevent the defendant

from misusing the motion to unjustifiably delay trial or obstruct the orderly

administration of justice. 'For example, a defendant should not be permitted to wait until

the day preceding trial before he moves to represent himself and requests a continuance

in order to prepare for trial without some showing of reasonable cause for the lateness of

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the request. . . . .' [Citations.]" (People v. Burton (1989) 48 Cal.3d 843, 852-853, italics

added; People v. Howze (2001) 85 Cal.App.4th 1380, 1397 [motion made three days

before trial held untimely].)

In People v. Clark (1992) 3 Cal.4th 41, 110, the court explained, "Although a

necessary continuance must be granted if a motion for self-representation is granted, it is

also established that a midtrial Faretta motion may be denied on the ground that delay or

a continuance would be required." Given the proximity of trial, a court may "deny [a]

Faretta motion as untimely if a continuance would be necessary," and it may also grant a

Faretta motion that would otherwise be untimely "when defendant expressly represented

he was able to proceed without a continuance." (Ibid.; People v. Tyner (1977) 76

Cal.App.3d 352, 355 [court may find Faretta motion near the time of trial is timely when

it is unaccompanied by a continuance request]; accord, In re Justin L. (1987) 188

Cal.App.3d 1068, 1076-1077.)

At the beginning of the Faretta hearing, appointed counsel represented that

Behbahani knew trial was a week away and he would be ready to proceed. The court

asked Behbahani directly if he understood "that we're going to go to trial," and he stated,

"I need a little more time." The court explained, "If you need a continuance or

postponement or more time, then I'm not going to let you represent yourself. If you're

ready to go to trial on this date, then if we go through the rest of this [Lopez waiver]

form, I will" grant your request. He responded that he would be ready to proceed with

trial. The court questioned him further, and he stated, "I have no choice. I got to be

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ready." The court then asked, "[A]re you going to be ready? That's a yes or no." He

clarified, "Yes, I'm ready."

Behbahani asserts, "the court was required to grant his request for a continuance"

because his Faretta motion was timely, and thus subject to the liberal rule of continuing

the trial to give him additional time to prepare. When a Faretta motion is granted as

timely, meaning unconditionally, the defendant is ordinarily "entitled to a reasonable

continuance to enable him to prepare for trial. 'To deny him that opportunity would be to

render his right to appear in propria persona an empty formality, and in effect deny him

the right to counsel.' " (People v. Hill (1983) 148 Cal.App.3d 744, 756.) "However, if

the court determines the defendant's request [for a continuance] is merely a tactic

designed to delay the trial, the court has the discretion to deny the continuance and

require the defendant to proceed to trial as scheduled either with his counsel or in propria

persona." (People v. Douglas (1995) 36 Cal.App.4th 1681, 1689, citing United States v.

Flewitt (9th Cir. 1989) 874 F.2d 669, 674-675.) A request for a continuance that

accompanies a Faretta motion is strong evidence the defendant's purpose is dilatory.

(People v. Burton (1989) 48 Cal.3d 843, 854.)

Behbahani relies on People v. Hill, supra, 148 Cal.App.3d 744, which held that

"regardless of whether the grant of the Faretta motion was mandatory or discretionary,

once the court granted that motion, it was obliged also to grant appellant's request for a

continuance." (Id. at p. 757.) Behbahani, however, expressly represented that he was

ready for trial without any continuance. His fleeting comment at the beginning of the

Faretta hearing, "I need a little more time," does not constitute a continuance request or

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assertion of the inability to prepare a defense, in light of his later assurances to the

contrary in response to the court's careful questioning intended to clarify his position.

The People's attorney asked the court to inquire of Behbahani again, because "maybe it

wasn't sufficiently clear to me that [he] is ready and prepared to go on the trial date as set.

It seemed like he was just saying he's not but he'll do it anyway." The court did so, and

he cannot now reasonably claim it should have known he needed a continuance. Further,

he points to nothing in the record to support his assertion that at the time of the Faretta

hearing he was unprepared to go to trial.2 Thus, the court's granting of the Faretta

motion without a continuance was proper.

II

Probation Conditions

Additionally, Behbahani contends probation conditions requiring him to obtain his

probation officer's approval of his residence and employment are overbroad because they

infringe on his constitutional rights of freedom to travel and freedom of association. We

review constitutional challenges to probation conditions de novo. (In re Shaun R. (2010)

188 Cal.App.4th 1129, 1143.)

2 On the first day of trial, Behbahani requested a continuance to subpoena
unspecified witnesses to support the argument police officers conducted a warrantless
search of his home. The court explained a continuance was unnecessary for that purpose
because a suppression motion was untimely. Contrary to his position, the request for a
continuance at trial does not show he also requested a continuance during the Faretta
motion. He did not argue at the Faretta motion that he needed time to subpoena any
witnesses or perform any other task. The People's case consisted of only two witnesses,
Detective Hudgins and a firearms expert. Behbahani's appointed counsel represented to
the court at the Faretta motion he had given Behbahani a copy of all the discovery and a
copy of the preliminary hearing transcript.
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 "Trial courts have broad discretion to set conditions of probation in order to 'foster

rehabilitation and to protect public safety pursuant to . . . section 1203.1.' [Citations.] If

it serves these dual purposes, a probation condition may impinge upon a constitutional

right otherwise enjoyed by the probationer, who is 'not entitled to the same degree of

constitutional protection as other citizens.' [Citation.] [¶] However, the trial court's

discretion in setting the conditions of probation is not unbounded. A term of probation is

invalid if it: ' "(1) has no relationship to the crime of which the offender was convicted,

(2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct

which is not reasonably related to future criminality." ' [Citation.] Conversely, '. . . a

condition of probation which requires or forbids conduct which is not itself criminal is

valid if that conduct is reasonably related to the crime of which the defendant was

convicted or to future criminality.' " (People v. Lopez (1998) 66 Cal.App.4th 615, 624.)

We agree that nothing in the record indicates Behbahani's living situation

contributed to his crime or future criminality. We disagree with the People's assertion

that since Behbahani possessed an illegal gun in his home (as opposed to in his vehicle or

workplace), there is a sufficient relationship to justify the probation officer's absolute

authority to approve his residence. The probation report states Behbahani owned a home

and had lived there for about 24 years, and there is no suggestion he intended to move.

While the probation officer presumably would not act capriciously, that alone does not

permit the court to unnecessarily limit his rights. Similarly, we agree the employment

condition is unrelated to his crime or future criminality. We note that the "Order

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Granting Probation" form lists the residence and employment conditions in the section

titled "VIOLENCE AND SEX CONDITIONS," which does not apply here.

Behbahani does not challenge other probation conditions, which for instance

prohibit him from knowingly owning or possessing any firearm or other weapon, and

from knowingly associating with any persons with firearms or other weapons in their

possession. Further, he is required to notify his probation officer of any change of

residence or employment within 72 hours.

DISPOSITION

The probation conditions requiring the probation officer's approval of Behbahani's

residence and employment are stricken. In all other respects, the judgment is affirmed.

MCCONNELL, P. J.

WE CONCUR:

NARES, J.

MCINTYRE, J.

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