People v. Birdon CA3

Filed 7/17/14 P. v. Birdon CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C073981

Plaintiff and Respondent, (Super. Ct. No. 11F07632)

v.

JARRAY DELMAR BIRDON,

Defendant and Appellant.

A jury found defendant Jarray Delmar Birdon guilty of assault with a gun, criminal threats, and being a felon in possession of a gun. It also sustained allegations of personal use of the gun. Defendant admitted a recidivist allegation. The trial court sentenced defendant to state prison.

On appeal, defendant contends only that the trial court erroneously denied his postverdict motion to discharge counsel and represent himself. We affirm.

1

Notwithstanding the lengthy factual recitations in the briefing, the nature of the argument on appeal does not require us to relate the facts that underlie defendant’s convictions. We thus note only that the October 2011 offenses arose out of a heated dispute at the home of a sister, in whose converted garage he stayed from time to time and kept his belongings, over defendant’s noncompliance with rules she had set for him. We will incorporate the facts pertinent to this appeal in the Discussion.

DISCUSSION

Prior to the date set for sentencing, defendant had filed what appears to be a form motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 for substitution of appointed counsel. Its allegations are not pertinent. At the scheduled hearing, the court continued the matter of sentencing and entertained the motion in camera.

We do not need to relate the substance of the hearing. At its conclusion, the trial court denied the motion. Defendant then immediately announced, “I wanted a Faretta motion to represent myself.” The court responded, “I’m not going to entertain that right now because a . . . motion to represent oneself has to be really unequivocal. And very often I see that when I deny a Marsden motion[,] [t]he immediate reaction is, well, if I can’t get a new attorney, I’ll just represent myself. So I want you to just think about it, but I’m very happy to entertain that motion on the day of sentence. [¶] If you want to represent yourself on the day of sentence, make sure you are prepared to go forward on that day.” (Italics added.) When defense counsel and defendant indicated that his desire to represent himself was based on his desire to file a motion for a new trial, which defense counsel did not think was warranted, the trial court told defendant to have that motion ready as well if he still wanted to represent himself.