People v. Iriarte CA4/1

Filed 9/20/22 P. v. Iriarte 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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, D078776
Plaintiff and Respondent,
v. (Super. Ct. No. SCD286533)
DANIEL GEXEMAN IRIARTE,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of San Diego County,
Frederic L. Link, Judge. Reversed.
Russell S. Babcock, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A.
Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted Daniel Gexeman Iriarte of driving under the influence
(DUI) of alcohol with three or more DUI convictions within 10 years (Veh.
Code, § 23152, subd. (a); count 1); driving while having a measurable blood
alcohol level with three or more prior DUI convictions within 10 years (Veh.
Code, § 23152, subd. (b); count 2); and providing false information to a police
officer (Pen. Code, § 148.9, subd. (a); count 3). In a bifurcated proceeding, the
trial court found Iriarte guilty of driving with a suspended license (Veh. Code,
§ 14601.2, subd. (a); count 4). In regard to counts 1 and 2, Iriarte admitted
the allegations that he had suffered four prior DUI convictions within the
past 10 years.
The court sentenced Iriarte to prison for three years.
Iriarte appeals, claiming the trial court erroneously denied his request
to represent himself under Faretta v. California (1975) 422 U.S. 806(Faretta), and the court erred in failing to grant his motion to appoint new
counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
We conclude the trial court violated Iriarte’s Sixth Amendment rights
by denying his Faretta request to represent himself at his trial. We therefore
reverse the judgment.1
FACTUAL AND PROCEDURAL BACKGROUND
Because the facts of Iriarte’s underlying offenses are not pertinent to
our review of the issues raised, we eschew our traditional discussion of them.
Instead, we focus on Iriarte’s requests to represent himself under Faretta.
On the day set for trial, February 8, 2021, Iriarte’s counsel appeared
remotely due to the possibility that he had COVID. When Iriarte learned of
his attorney’s condition, he stated that he would represent himself if his
attorney tested positive, leading to the following exchange:
“[Iriarte]: I’ll just represent myself, if not.
1 We do not reach Iriarte’s claim that the trial court erroneously denied
his Marsden motion.
2
“THE COURT: No. You’re not going to represent yourself,
sir.
“[Iriarte]: Because I could do—I believe I have the right to
represent myself.
“THE COURT: No, you’re not—no, no. Well, I’ll let you
give that point. Why don’t you take your mask down and
tell me—you want to represent yourself?
“[Iriarte]: Well, if he’s—if we’re going to wait that long,
then yeah.
“THE COURT: Well, let me ask you a question: Why do
you think you can represent yourself?
“[Iriarte]: Because I have the right to.
“THE COURT: Well, it’s more than that, sir. What do you
know about the law?
“[Iriarte]: We’ll decide the day of trial.
“THE COURT: You don’t know the law, do you?
“[Iriarte]: We’ll decide the day of trial.
“THE COURT: And you don’t know what the jury
instructions are, do you?
“[Iriarte]: I have read some of them.
[¶] . . . [¶]
“THE COURT: Have you ever been in a trial, sir?
“[Iriarte]: No, I haven’t.
“THE COURT: Okay. So you have no idea how a trial
works, do you?
“[Iriarte]: No.
“THE COURT: Okay. No, you don’t have the ability, sir.
I’m not going to let—did you go to college?
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“[Iriarte]: What was that?
“THE COURT: Did you go to college?
“[Iriarte]: No, I didn’t have time to because of this.
“THE COURT: Did you graduate from high school?
“[Iriarte]: Yes, sir.
“THE COURT: Okay. All right. He doesn’t have the
ability. I can’t let him go forward. Plus, it’s the day of
trial, and I find it dilatory.”
Later that same day, after the parties discussed whether Iriarte
wanted a bifurcated trial on his prior conviction allegations and after a
recess, the trial court announced that it just learned that the trial had to be
continued due to COVID restrictions. The court and Iriarte then engaged in
the following exchange:
“THE COURT: . . . [¶] Mr. Iriarte, do you still wish to
continue to make your motion to represent yourself?
“[Iriarte]: Yes, sir.
“THE COURT: Really? Now, you know I’ve already turned
you down. Do you understand why?
“Iriarte]: I really don’t.
“THE COURT: Okay. You’ve never been in a trial before,
so you don’t know what a jury is all about; right?
“[Iriarte]: Nah, I’ve heard about it.
“THE COURT: You’ve heard about it.
“[Iriarte]: Yeah.
“THE COURT: Okay. And you don’t know anything about
the rules, the law; correct?
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“[Iriarte]: Yes, I do, sir. I understand where you are
coming from.
“THE COURT: Well, I’m telling you, certain things you
have to do. You know, your education—you went to high
school and no education after that.
“[Iriarte]: Well, you’ve got to—I’ve been through this court
system for four or five years, man.
“THE COURT: You’ve been through what, man?
“[Iriarte]: I’m not going to argue about this, man.
“THE COURT: No, not argue. Okay. You said you’ve been
through what for four—
“[Iriarte]: This court system for four or five years, man.
“THE COURT: But none of those were in a jury trial,
correct? No. [¶] [Iriarte’s counsel], do you have any
comment on this?
“[Iriarte’s counsel]: Your Honor, I am more than able to do
this trial. I’m prepared. I’m ready to go when the Court’s
ready.
“THE COURT: That’s your comment? Well, look, this
fellow doesn’t have the ability to handle a jury trial. He
doesn’t know how to voir dire, question, education is
suspect. You know, he’s been in the court system many
times, but none of it’s been on a jury trial. [¶] And it would
be ridiculous for him to represent himself. He’d just be
throwing himself down a rabbit hole. I’m not going to let
that happen. So his motion to be self-representing is
denied.
“[Iriarte]: Are going to deny me my right to represent
myself?
“THE COURT: I am not allowing you to represent yourself.
Is that clear?
“[Iriarte]: For what reason?
5
“THE COURT: For the reasons I just gave.
“[Iriarte]: Wow.
“THE COURT: Wow. You’re right.”
The court then continued the trial to February 22 and addressed some
pretrial motions.
DISCUSSION
I
THE FARETTA MOTION
A. Iriarte’s Contentions
Iriarte maintains the trial court improperly denied his Faretta motions
based on its belief that he was unable to adequately defend himself. The
People counter that it does not matter if the court improperly considered
Iriarte’s ability to defend himself at trial because the motions were untimely.
Iriarte has the better argument.
B. Relevant Law and Standard of Review
Under the Sixth and Fourteenth Amendments to the United States
Constitution, a criminal defendant has a “ ‘constitutional right to proceed
without counsel when’ [the] defendant ‘voluntarily and intelligently elects to
do so.’ [Citation.]” (Indiana v. Edwards (2008) 554 U.S. 164, 170; see Faretta,
supra, 422 U.S. at pp. 818-832.) The “autonomy and dignity interests” that
underlie this right are not defeated by “the fact or likelihood that an
unskilled, self-represented defendant will perform poorly in conducting his or
her own defense . . . .” (People v. Mickel (2016) 2 Cal.5th 181, 206 (Mickel).)
A self-represented defendant need not meet the standards of an
attorney or even be capable of conducting an “effective defense.” (Mickel,
supra, 2 Cal.5th at p. 206.) Indeed, a defendant’s right to control his defense
includes the right to decide to present no defense, or a defense that has little
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or no chance of success. (Id. at p. 209.) “[R]ecognizing a criminal defendant’s
right to self-representation may result ‘ “in detriment to the defendant, if not
outright unfairness.” ’ [Citation.] But that is a cost that we allow defendants
the choice of paying, if they can do so knowingly and voluntarily.” (Id. at
p. 206.)
“When ‘a motion to proceed pro se is timely interposed, a trial court
must permit a defendant to represent himself upon ascertaining that he has
voluntarily and intelligently elected to do so . . . .’ ” (People v. Dent (2003) 30
Cal.4th 213, 217.) An intelligent waiver requires a general understanding of
the risks and disadvantages of forgoing counsel. (Faretta, supra, 422 U.S. at
p. 835.) The defendant “should at least be advised that: self-representation is
almost always unwise and that the defense he conducts might be to his
detriment; he will have to follow the same rules that govern attorneys; the
prosecution will be represented by experienced, professional counsel who will
have a significant advantage over him in terms of skill, training, education,
experience, and ability; the court may terminate his right to represent
himself if he engages in disruptive conduct; and he will lose the right to
appeal his case on the grounds of ineffective assistance of counsel.” (People v.
Phillips (2006) 135 Cal.App.4th 422, 428 (Phillips).)2
The timeliness of a Faretta request is a threshold requirement that
prevents a “ ‘defendant from misusing the [Faretta] motion to unjustifiably
delay trial or obstruct the orderly administration of justice.’ ” (People v.
Lynch (2010) 50 Cal.4th 693, 722.) The right to self-representation upon a
timely and unequivocal request knowingly and intelligently made is absolute.
2 “There are standard scripts for judges to use in taking Faretta waivers,
as well as standard Faretta waiver forms.” (People v. Weber (2013) 217
Cal.App.4th 1041, 1058 (Weber).)
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If the defendant unequivocally makes such a request, the trial court has no
discretion to deny it. (People v. Halvorsen (2007) 42 Cal.4th 379, 434
(Halvorsen); Lynch, at p. 721.) If, however, a Faretta request is untimely, the
reviewing court must determine whether the trial court abused its discretion
in denying the request. (People v. Hardy (1992) 2 Cal.4th 86, 194; People v.
Windham (1977) 19 Cal.3d 121, 128 (Windham.) “In exercising its discretion
to grant or deny an untimely self-representation request, . . . the trial court
should consider, among other factors, ‘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 such a motion.’ ” (People v. Buenrostro (2018) 6 Cal.5th 367, 426.)
An erroneous denial of a timely and unequivocal Faretta request is
reversible per se. (People v. Becerra (2016) 63 Cal.4th 511, 520 (Becerra).)
C. Analysis
Here, the People contend the court properly denied Iriarte’s Faretta
motions because they were untimely. In California, there is no bright-line
test for determining the timeliness of a Faretta motion (People v. Clark (1992)
3 Cal.4th 41, 99 (Clark)); rather, the “reasonable time” requirement is to
ensure that a defendant does not “misuse the Faretta mandate as a means to
unjustifiably delay a scheduled trial or to obstruct the orderly administration
of justice. . . . When the lateness of the request and even the necessity of a
continuance can be reasonably justified the request should be granted.
When, on the other hand, a defendant merely seeks to delay the orderly
processes of justice, a trial court is not required to grant a request for self-
representation without any ability to test the request by a reasonable
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standard.” (Windham, supra, 19 Cal.3d at p. 128, fn. 5; People v. Burton
(1989) 48 Cal.3d 843, 852-853 (Burton).)
As the People point out, California courts have recognized untimely
requests can be an exception to the right of self-representation and have
repeatedly upheld the denial of untimely motions. For example, in People v.
Frierson (1991) 53 Cal.3d 730, 742, the court held that a self-representation
motion made on September 29, 1986, when trial was scheduled for October 1,
1986, was made on “the eve of trial” and was untimely. Other courts reached
similar conclusions when considering motions too close to trial. (See People v.
Valdez (2004) 32 Cal.4th 73, 102 [Faretta motion made “moments before jury
selection was set to begin” deemed untimely]; People v. Horton (1995) 11
Cal.4th 1068, 1110 [self-representation motion made on the date scheduled
for trial untimely]; People v. Howze (2001) 85 Cal.App.4th 1380, 1397 [motion
made immediately before or on day of trial is generally considered untimely];
Clark, supra, 3 Cal.4th at pp. 99-100 [case had been continued day to day
after August 10 “in the expectation that the motions would be concluded and
jury selection set to begin at any time,” and hence the defendant’s August 13
motion was “in effect the eve of trial” and untimely].)
Although this list of cases shows that a trial court may properly deny
an untimely Faretta motion, none of the cases create a bright-line rule. In
other words, the cases relied on by the People do not stand for the proposition
that a Faretta request made on the day of trial is always untimely and should
be denied. Further, these cases are not particularly instructive here, where it
does not appear, on the record before us, that the trial court denied the
Faretta motions because they were untimely.
The People emphasize that the trial court here recognized that Iriarte’s
motion was made “the day of trial” and was “dilatory.” As such, they insist
9
the court denied the Faretta motion because it was untimely. However,
looking at the entire exchange between the court and Iriarte when he first
requested to represent himself, the court’s comments on which the People
rely seem to be little more than an afterthought. Indeed, when Iriarte first
requested to represent himself, the court’s immediate response was: “No.
You’re not going to represent yourself, sir.” The court then proceeded to
question Iriarte’s knowledge of the law, trial experience, familiarity with the
jury instructions, and his educational background before determining Iriarte
did not “have the ability” to represent himself. After making that conclusion,
the court added, “Plus, it’s the day of trial, and I find it dilatory.”
Thus, in response to Iriarte’s request to represent himself, the trial
court spent the lion’s share of the time questioning Iriarte’s ability to
represent himself before noting that it believed the request was “dilatory.”
Further, we find the choice of the word “dilatory” odd on this record.
“Dilatory” is defined as “tending or intended to cause delay” or “characterized
by procrastination; tardy.” (Merriam-Webster’s Collegiate Dict. (11th ed.
2007) p. 350, col. 1.) Although Iriarte did not make the request to represent
himself until the day of trial, there is no indication in the record that he did
so to delay the proceedings. He did not ask for a continuance or otherwise
request any additional time to prepare. Indeed, his request was in response
to the indication that there might be a delay in the trial because his attorney
possibly was infected with COVID. Therefore, the record suggests that
Iriarte initially asked to represent himself to prevent delay, not to cause it.3
3 The People also argue that Iriarte’s initial request to represent himself
was not unequivocal but conditional. He indicated he would represent
himself only if his attorney tested positive for COVID and the trial needed to
be continued. Although we do not disagree with the People on this point,
Iriarte’s second request to represent himself was clearly unequivocal.
10
However, we need not determine whether the trial court actually
denied Iriarte’s initial request to represent himself on timeliness grounds
because Iriarte unequivocally made a second request to represent himself
after the court informed the parties that the trial would be delayed because of
COVID protocols. Remarkably, it was the trial court who further engaged
Iriarte on this issue by asking him if he “still wish[ed] to continue to make
[his] motion to represent [himself]?” Iriarte clearly indicated that he did. In
response the court merely expressed disbelief (“Really?”), noting that it had
already “turned [Iriarte] down.” The court then again questioned Iriarte’s
ability to represent himself, emphasizing his lack of education and trial
experience. In ultimately denying Iriarte’s second Faretta motion, the court
reasoned:
“Well, look, this fellow doesn’t have the ability to handle a
jury trial. He doesn’t know how to voir dire, question,
education is suspect. You know, he’s been in the court
system many times, but not of it’s been on a jury trial. [¶]
And it would be ridiculous for him to represent himself.
He’d just be throwing himself down a rabbit hole. I’m not
going to let that happen. So his motion to be self-
representing is denied.”
Thus, the court explicitly explained that he was denying Iriarte’s
request to represent himself because it concluded Iriarte lacked the ability to
represent himself. There was no discussion of the motion being untimely.
The court did not ask Iriarte if he needed additional time to prepare, and
there is no indication in the record that Iriarte made his request to delay the
trial. (See Windham, supra, 19 Cal.3d at p. 128, fn. 5; Burton, supra, 48
Cal.3d at pp. 852-853.) Moreover, at the time the court engaged Iriarte on his
second request to represent himself, it was undisputed that the trial would
need to be delayed because of COVID protocols. And the trial was continued
for almost two weeks. Against this backdrop, we find no support for the
11
People’s argument that the trial court denied Iriarte’s second Faretta motion
on the grounds it was untimely.
In the instant action, we find overwhelming support for Iriarte’s claim
that the trial court violated his Sixth Amendment right to represent himself.
In denying Iriarte’s second Faretta motion, the court focused exclusively on
Iriarte’s ability to represent himself. That was clear error. (See Mickel,
supra, 2 Cal.5th at p. 206.) The court did not ascertain whether Iriarte was
making his request knowingly and intelligently. (See Halvorsen, supra, 42
Cal.4th at p. 433.) Nor did the court offer Iriarte the long established
advisements commonly provided to defendants when they request to self-
represent (see Phillips, supra, 135 Cal.App.4th at p. 428) or use any of the
standard scripts or forms for Faretta waivers (Weber, supra, 217 Cal.App.4th
at p. 1058.) We therefore must reverse the judgment.4 (Becerra, supra, 63
Cal.4th at p. 520.)
4 The People reference a third Faretta motion that Iriarte made
immediately before closing arguments. Because we find error in the court’s
handling of the second Faretta motion, we do not discuss the third motion.
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DISPOSTION
The judgment is reversed.
HUFFMAN, Acting P. J.
WE CONCUR:
O’ROURKE, J.
IRION, J.
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