People v. Rogers (37 Cal. App. 4th 1053, 1995)

Opinion

PERLEY, J.

Michael Ray Rogers (appellant) appeals from a judgment of conviction following a jury verdict finding him guilty of attempted voluntary manslaughter and assault with a firearm and finding that he used a firearm in the commission of the offenses. (Pen. Code, §§ 664/192, subd. (a), 245, subd. (a)(2), 12022.5.) Appellant admitted a prior serious felony conviction. (Pen. Code, § 667.) He contends that the trial court abused its discretion in denying his Faretta motion (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525]). We affirm.

Facts

On September 3, 1993, John Davey, a wharfinger for the Port of San Francisco, was in the process of posting notices on boats docked illegally at Islais Creek. Davey was accompanied by two police officers. Officer Neybert was videotaping the posting to document that notices were given in the event of a court challenge. Prior to approaching appellant’s boat, Officer Parent! saw appellant looking over at them as they posted a notice on a boat, but appellant subsequently disappeared from view. When they arrived at appellant’s boat, they noticed appellant coming up out of the hatch of his boat. Appellant pointed a flare gun at Davey and the officers. Appellant told them: “This is a flare gun and don’t think I won’t use it.” Appellant immediately fired the gun, grazing Davey in the chin.

Appellant gave a statement to the police, a tape recording of which was played for the jury. Appellant told the police that he shot Davey because he believed that Davey was going to steal his boat. Appellant further told the police that San Francisco Port officials had previously taken one of his boats.

Discussion

Appellant contends that the trial court erroneously denied his Faretta motion. We conclude that the error in denying the motion was harmless.

Appellant initially made his Faretta motion during a Marsden hearing which was held immediately prior to jury selection. Appellant informed the court that he had not had access to the law library and hence would need a week to prepare for trial. The trial court asked defense counsel whether he had subpoenaed witnesses, performed legal research, and represented appellant according to professional standards. Defense counsel stated that he had and appellant acknowledged that defense counsel had “done everything within the bounds of the code of ethics and everything to assist me” but that they had “profound” disagreements on how the case should proceed. The trial court denied the Marsden motion and took the Faretta motion under submission. The trial court thereafter proceeded with jury selection. During a recess of the voir dire proceedings, the trial court informed the parties that it was prepared to rule on appellant’s Faretta motion. The following colloquy occurred: “[The Court]: It is my understanding you still want to represent yourself, now that you have seen what is going on out there, have you had a chance to reflect? HD [The Defendant]: I am far more comfortable with Mr. Hickman [defense counsel]. My understanding of the process has been, I have never been all the way to a jury trial, and so, therefore, I have faced this with extreme trepidation and I am much more comfortable with Mr. Hickman than I was before. [(H] [The Court]: So you formally withdraw your motion then? [50 [The Defendant]: I simply have to wait and see. I refuse to recommit [sic] myself on that. [50 [The Court]: Well, are you withdrawing it, at least at this time? [The Defendant]: At this time, yes, I will do so. [