People v. Brodie CA3 ( 2021 )

Filed 8/25/21 P. v. Brodie CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Plumas)
----
THE PEOPLE, C092107
Plaintiff and Respondent, (Super. Ct. No. F1900607)
v.
VICTOR LAURANCE BRODIE,
Defendant and Appellant.
Defendant, Victor Laurance Brodie, was convicted of first-degree residential
burglary and possession of a controlled substance while armed with a firearm. Prior to
trial, defendant made comments to the trial court about wanting to represent himself.
Defendant contends these were unequivocal requests pursuant to Faretta v. California
(1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta), and that the trial court erred in failing to
substantively address and summarily denying these requests. We find no error and affirm
the judgment.
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FACTS AND HISTORY OF THE PROCEEDINGS
The substantive facts underlying the convictions are not relevant to the issue raised
on appeal and are therefore not recounted here. Defendant was convicted of first-degree
residential burglary (Pen. Code, § 459) and possession of a controlled substance while
armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)). At the trial readiness
conference, 18 days before trial, defendant made a People v. Marsden (1970) 2 Cal.3d
118 (Marsden) motion contending he had obtained new counsel and had “fired” his
appointed counsel. The trial court held a hearing in a closed session during which
defendant argued:
“THE DEFENDANT: Ken VanDervoort is my attorney.
“THE COURT: Right, and he’s not here.
“THE DEFENDANT: Right because I did not know this hearing was taking
place. I thought the trial was set for the 11th.
“THE COURT: We have a trial coming up, so I’m not going to relieve
Mr. Osborne unless your attorney - -
“THE DEFENDANT: Please do because I fired him twice. Can you call - -
“THE COURT: Well, you can’t fire him.
“THE DEFENDANT: I have to.
“THE COURT: Either you are represented by another attorney and I have to have
that attorney here or you represent yourself - -
“THE DEFENDANT: Then I’ll represent myself.
“THE COURT: - - which is always not a good idea on a felony case when you
have a trial coming up in two weeks.”
After further argument about counsel’s performance relevant to the Marsden issue,
the court denied defendant’s motion, stating: “Well, I’m going to deny this Marsden
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hearing. We have this on for readiness, so let me recall it with the district attorney here
and then we’ll finish up this hearing.”
During the Marsden proceeding, defendant continuously engaged in disruptive
behavior, interrupting both the trial court as well as his appointed counsel. The trial court
continuously had to remind defendant to wait for his turn to speak, and despite these
admonishments, defendant continued to interrupt. The court reporter even interrupted the
proceedings and stated, “Sir, please. I can only report one at a time.” This did not deter
defendant from interrupting.
Defendant’s disruptive behavior continued to after this proceeding, such that on
the first day of trial the court warned him several times that if he was disruptive in front
of the jury he would be removed from the courtroom for the duration of the trial.
Defendant appeared in court in his jail clothes, and continuously interrupted the trial
court when being questioned as to whether he desired to wear those clothes instead of
civilian clothes. He stated that he had refused to wear the clothes his attorney obtained
for him because they were “clownish” and made him look “guilty in the eyes of the jury.”
His attorney stated that defendant had refused to provide him with his clothing size
information, and consequently the attorney had been forced to guess as to defendant’s
size.
During the entirety of this discussion, defendant repeatedly interrupted both the
trial court and his attorney. Defendant stated he would like a continuance of the trial
because he was upset with his attorney, and the trial court denied his request since the
jury panel was waiting for voir dire, and this was a “no time waiver” matter.
Defendant repeatedly interrupted the trial court to state his belief that the trial
court was preventing him from obtaining a fair trial. Defendant again spoke of his desire
to represent himself:
“THE DEFENDANT: I would like to act as my own counsel. I would like an
extension please. I would like to act as my own counsel.
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“THE COURT: I already ruled on that.
“THE DEFENDANT: All right.
“THE COURT: You’re not capable - -
“THE DEFENDANT: I am.
“THE COURT: - - of being your own attorney - -
“THE DEFENDANT: I am, quite.
“THE COURT: - - because you’re acting out and you’re disruptive and I don’t
think your conduct is appropriate and I don’t think you have any idea how to conduct
your own trial.”
Before voir dire commenced, the trial court commented: “So actually, another
thing I just want to remind you, Mr. Brodie, is that if there’s going to be disruptions or
interruption, then we’re going to exclude you from the trial. So this is another warning
that I expect you to be respectful and quiet and not interrupt. [¶] We’re starting this trial,
we’re going forward. I’ve already heard your request to continue or represent yourself,
and I don’t think that’s appropriate. We are going forward with the jury trial.”
DISCUSSION
On appeal, defendant argues the trial court failed to properly address his request to
represent himself and conduct a Faretta hearing, and therefore erred in summarily
denying his request. Defendant asserts he made two unequivocal requests to represent
himself and that the trial court did not undertake the analysis required to determine
whether defendant was aware of the consequences of such a decision. The People argue
defendant’s first request was equivocal, and therefore did not require Faretta analysis,
and that his second request was equivocal, untimely, and defendant’s behavior was so
disruptive the trial court was within its discretion in denying the request.
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I
Legal Background
A criminal defendant has a right to represent himself at trial under the Sixth
Amendment to the United States Constitution. (Faretta, supra, 422 U.S. at pp. 835-836;
People v. Williams (2013) 58 Cal.4th 197, 252.) “ ‘A trial court must grant a defendant’s
request for self-representation if three conditions are met. First, the defendant must be
mentally competent, and must make his request knowingly and intelligently, having been
apprised of the dangers of self-representation. [Citations.] Second, he must make his
request unequivocally. [Citations.] Third, he must make his request within a reasonable
time before trial. [Citations.]’ ” (People v. Stanley (2006) 39 Cal.4th 913, 931-932.)
Additionally, a Faretta motion made for the purpose of delay may be denied. (People v.
Butler (2009) 47 Cal.4th 814, 825.) An erroneous denial of a timely Faretta request is
reversible per se. (Id. at p. 824.)
A trial court may deny a defendant’s Faretta motion if it is not made within a
reasonable time prior to the start of trial. (People v. Williams (2013) 56 Cal.4th 165, 193
[the constitutional right to self-representation “must be asserted within a reasonable time
before trial”].) “The timeliness requirement ‘serves to prevent a defendant from misusing
the motion to delay unjustifiably the trial or to obstruct the orderly administration of
justice.’ [Citation.]” (People v. Doolin (2009) 45 Cal.4th 390, 454.) “[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 motion is made.” (People v. Lynch (2010) 50 Cal.4th 693, 724.) In
determining whether the motion is timely, the trial court may properly consider, “not only
the time between the motion and the scheduled trial 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
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proceedings, and whether the defendant had earlier opportunities to assert his right of
self-representation.” (Id. at p. 726.) When the trial court does not state untimeliness as
its reason for denying a Faretta motion, we independently review the record to determine
whether the motion would properly have been denied on this ground. (People v.
Halvorsen (2007) 42 Cal.4th 379, 433, fn. 15.)
Faretta warned that a trial court “may terminate self-representation by a defendant
who deliberately engages in serious and obstructionist misconduct.” (Faretta, supra,422 U.S. at pp. 834-835, fn. 46.) According to the California Supreme Court, “the same
rule applies to the denial of a motion for self-representation in the first instance when a
defendant’s conduct prior to the Faretta motion gives the trial court a reasonable basis for
believing that his self-representation will create disruption.” (People v. Welch (1999)
20 Cal.4th 701, 734.) The extent of a defendant’s disruptive behavior may not be fully
evident from the cold record and the trial court is in the best position to judge the
defendant’s demeanor. (Id. at p. 735.) Accordingly, we defer to the trial court’s exercise
of discretion absent a strong showing of clear abuse. (Ibid.)
II
First Request
The People argue defendant’s first request was akin to the defendant’s invocation
in People v. Roldan (2005) 35 Cal.4th 646, in which the defendant was upset his counsel
had contacted his family and stated, “ ‘I’ll be my own lawyer if he is going to be like
that.’ ” (Id. at p. 683.) The California Supreme Court held this statement was equivocal
and also that the circumstances suggested the defendant was merely attempting to delay
the trial. (Id. at pp. 683-684.) Accordingly, the defendant’s request did not require
further Faretta analysis. (Ibid.) We do not agree with the People’s argument.
Defendant’s first request during the Marsden hearing was not equivocal and was
sufficient to require a Faretta analysis. Defendant clearly stated that he did not want his
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appointed counsel to represent him and that if he could not obtain another attorney as he
wished to do, he would represent himself. Unlike Roldan, his request was not contingent
upon his attorney’s behavior, and instead was based on his inability to replace his
appointed counsel with his chosen counsel because the latter was not at the hearing.
Nonetheless, we also find the trial court did not abuse its discretion in denying
defendant’s request due to its lack of timeliness and defendant’s disruptive behavior. The
trial court stated that trial was a little more than two weeks away and that having
defendant represent himself was not a good idea. The trial court also repeatedly
emphasized that this was a “no time waiver” case and therefore trial had to commence as
scheduled. Further, defendant’s behavior of constantly interrupting the hearing was very
disruptive, a fact that gave the trial court a reasonable basis for believing he would cause
similar disruption at trial if he was allowed to represent himself.
III
Second Request
Defendant’s second request, on the first day of trial, was also sufficient to require
a Faretta analysis. He made a request to, “act as my own counsel” with no qualifying
language. However, we also find the trial court did not abuse its discretion as the
defendant continued to be disruptive and the request was untimely. Defendant’s behavior
was continuously disruptive, both before, during, and after his second Faretta request.
The trial court stated that it was denying defendant’s request because he was acting out,
disruptive, and engaging in inappropriate behavior. The record supports this
determination, especially as the trial court had repeatedly warned defendant that it could
remove him from the courtroom if he did not stop disrupting the proceedings, and these
warnings did nothing to dissuade defendant from further outbursts.
Based on our independent review, the request would also have been properly
denied based on untimeliness. The request was made on the first day of trial as voir dire
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was set to begin. Defendant also requested a continuance, despite having declined to
waive time for trial. Under the totality of the circumstances, the request was not timely.
DISPOSITION
The judgment is affirmed.
HULL, J.
We concur:
RAYE, P. J.
BLEASE, J.
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