PEOPLE v. WOLDEN III

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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Russell L. WOLDEN, III, Defendant and Appellant.

No. H005672.

Decided: January 10, 1991

John Kelley, under appointment by the Court of Appeal in association with the Sixth District Appellate Program, Michael A. Kresser, Sixth Dist. Appellate Program, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Laurence K. Sullivan, Supervising Deputy Atty. Gen., Rene A. Chacon, Deputy Atty. Gen., for plaintiff and respondent.

Defendant Russell L. Wolden III appeals from a judgment of conviction entered upon a jury verdict finding him guilty of assault with a deadly weapon (an automobile) upon a police officer engaged in the performance of his duties.  (Pen.Code, § 245, subd. (b).) 1  On appeal, he raises numerous claims of trial court error.

FACTS

On December 9, 1987, at around 4:30 in the afternoon, Police Officer Philip Tejero, while on duty within the City of Campbell, noticed a red Ford Escort being driven erratically on Capri Avenue.   The car crossed back and forth over the center dividing line several times.   Suspecting that the driver (who later was identified as defendant) was under the influence, the officer decided to stop the vehicle to investigate.   Officer Tejero turned on the emergency lights of the police car he was driving, but defendant did not stop.

Officer Tejero saw defendant looking at him in his rear view mirror.   At that point, the officer sounded his siren a few times, and defendant looked back at Tejero and signaled with his hand through the sunroof that he was going to turn into the driveway of an apartment complex which they were near.   As the officer pulled into the driveway behind the Escort, defendant turned a corner and disappeared.   When Tejero reached the corner, he found a cloud of dust and saw the taillights of the Escort turning a corner at the end of an alley.

Tejero then radioed his station that he was in pursuit, and a high speed chase through a residential area ensued.   For the next few minutes, Tejero followed defendant at speeds of up to 60 miles per hour around several streets, remaining roughly within the same area of the city.   Meanwhile, Officer Adams, in response to Tejero's radio call for assistance, positioned his motorcycle (with all emergency lights activated) somewhere near the intersection of Marilyn and Waldo Streets in an attempt to stop the Escort.   As the Escort approached the intersection, it headed directly for Officer Adams.   Fearing for his life, Officer Adams backed up his motorcycle, drew his gun, and fired a shot in the direction of the car's rear tire.

The Escort proceeded past Adams with Tejero still in pursuit.   Adams turned his motorcycle and joined in the chase.   Ultimately, defendant turned into a cul-de-sac called Mary Court.   Observing the Escort making a left hand turn around the perimeter of the court, Tejero positioned his vehicle at an angle in front of the car to stop it.   The Escort ran into the police vehicle, becoming momentarily hung up on its left front end.

At this point, Officer Adams arrived in the cul-de-sac and drove his motorcycle between the police car and the curb, directly in front of the Escort.   As Adams was putting the motorcycle's kickstand down, the Escort managed to get free of the police vehicle.   Defendant accelerated forward towards the motorcycle and Adams.   Defendant and Adams made eye contact.   Adams, assuming he was about to be hit, simultaneously jumped back from the motorcycle, pulled his gun, and fired a shot towards defendant.   The Escort struck the motorcycle and became stuck on its front tire.   Defendant continued to accelerate the car engine, although the wheels were off the ground and it did not move.

Adams was not injured, and it was never discovered where the bullet he had fired had gone.   Defendant was taken out of his car and arrested.   He appeared intoxicated.   When tested at the police station approximately an hour later, his blood was determined to have an alcohol level of 0.26 percent along with 0.18 parts per million of Diazapam (Valium).

At trial, defendant stipulated to the percentage of alcohol and drugs found in his blood, and admitted he had attempted to elude Officer Tejero.   However, he denied that he had assaulted Officer Adams.   He claimed his car had not passed close enough to Adams in the Marilyn and Waldo intersection to constitute a threat to him, and that Adams had fired his gun without provocation.   He further argued that Adams was off his motorcycle and not in his car's path when he accelerated toward the motorcycle on Mary Court.   Defendant presented evidence to support his position.   He argued that he was trying to escape from Adams because he feared Adams was trying to kill him.   He further argued that Adams lied about what happened because he did not want to get into trouble for using his firearm in an unwarranted situation.

PROCEDURAL HISTORY

By information filed December 11, 1987 defendant was charged with four counts of assault with a deadly weapon upon a peace officer (Pen.Code, § 245, subd. (b)).  He was further charged with four misdemeanor Vehicle Code violations.   The information was amended in June 1988 to include allegations of three prior prison terms within the meaning of section 667.5, subdivision (b).

Attorney Stuart Wilson was appointed to represent defendant.   A preliminary examination was held in June of 1988, at which time, defendant, represented by Wilson, was held to answer on all of the charges.

During the next four months, the trial was continued a number of times while counsel made several discovery motions, a motion to dismiss, and a motion to set aside the information and to strike the prior prison term enhancements.

The People, meanwhile, moved to amend the information to include serious felony allegations as to counts 1 through 4, and to allege two prior DUI convictions.   The court granted the People's motion to amend, struck one of the prior prison term enhancements, granted some of defendant's requested discovery and denied the rest.   The motion to dismiss was denied.

After these motions were heard, trial was reset for October 31, 1988.   Before it could begin, however, counsel moved to withdraw.   This motion, along with a Marsden 2 motion filed by defendant, was heard on November 3.   The trial court denied both motions and trial was reset for November 7, 1988.   At that time, defendant moved to represent himself pursuant to Faretta v. California (1974) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.   The court granted defendant's request and accordingly relieved Wilson as counsel.   The trial was continued over a month to December 19, 1988, to give defendant sufficient time to prepare.

Defendant filed numerous pretrial motions over the next few weeks.   The trial was continued a few days from the December 19 date for motions and calendaring.   On December 27, the matter was set to be assigned out for trial.   At that time, defendant felt he was not prepared to proceed to trial and requested the reappointment of either counsel or cocounsel.   The court denied defendant's request for cocounsel but reappointed Wilson (who was not present nor notified of the hearing) to represent defendant.   The court also granted the prosecutor's motion at this time to dismiss three of the four counts of assault.   The matter was continued to January 11, 1989, for the appearance of counsel and resetting of trial.   Wilson learned of his reappointment at the January 11 proceeding, and trial was set for January 17.

On January 12, Wilson filed a motion requesting a continuance to January 23 to give him sufficient time to prepare.   He also filed a motion to withdraw as counsel on the ground that defendant's conduct made it impossible for him to prepare effectively for trial.   Defendant also filed another Marsden motion.

The court heard these motions on January 17.   It granted Wilson a one day continuance to January 19, and denied the other motions.   On January 19, Wilson again sought a continuance to January 23.   The court stated it would commence picking the jury, but delay the actual start of trial until the 23rd.

Trial commenced on January 23.   On January 27, the jury returned verdicts finding defendant guilty as charged.   The court found one of the priors alleged pursuant to section 667.5, subdivision (b) to be true.   The other prior was found not true, as was an allegation that defendant committed the underlying offense while on probation.

On February 22, 1988, defendant made another motion to relieve appointed counsel, which was denied following a Marsden hearing.   Defendant's motion to represent himself was also denied.

On March 27, defendant's motion for a new trial was granted with respect to the reckless driving conviction and denied as to all other counts.   The trial court then dismissed the reckless driving count on the prosecutor's motion.

Defendant was sentenced on April 5.   The trial court denied his request for probation and sentenced him to state prison for the midterm of four years for assault with a deadly weapon upon a peace officer.   Concurrent 180–day county jail terms were also imposed on each of the three misdemeanor convictions.   The section 667.5, subdivision (b) enhancement was stayed.   Defendant was awarded 511 days of presentence custody credit and fined $500.

1. Issues Surrounding Reappointment of Attorney Wilson

Initially, defendant contends that the court erred in failing to appoint him advisory counsel or cocounsel, failing to seek Wilson's approval before his reappointment, denying a subsequent motion of Wilson to withdraw, and in denying his Marsden motion.   The factual and procedural background surrounding these arguments is set forth above.

Defendant's first contention—that the trial court erred in denying his motion for cocounsel—is without merit.   The record reveals that at the December 27 hearing, defendant requested the appointment of either counsel or cocounsel to assist him with his case, as he did not feel prepared to represent himself at trial.   The court denied his request for cocounsel but granted his request for counsel.   The court stated it would reappoint attorney Wilson to the case, due to his prior involvement in the matter.   The defendant made no objection to the court's ruling, and in fact stated that “Mr. Wilson would be the ideal person to come in, as he is familiar with the case.”   The defendant received what he asked for, and expressed agreement with the decision.   There is no error under these facts.

 We also reject defendant's argument that denial of his request for cocounsel was tantamount to a deprivation of his right to represent himself.   After the December 27 hearing, wherein Wilson was reappointed with defendant's approval, he did not seek to reestablish his pro se status at any time prior to or during the trial.   Had he wanted to do so, the record reflects he was familiar with the procedure, as illustrated by his earlier, successful, Faretta motion.

Defendant further argues the court erred in reappointing Wilson as counsel of record without first securing Wilson's consent, and that such error was compounded by the court's subsequent denial of Wilson's motion to withdraw.   With respect to the issue of whether it was error for the court to reappoint Wilson without first securing his consent, defendant argues that the trial court's action failed to comply with the requirements of Code of Civil Procedure section 284,3 and further, that the order was an unconstitutional violation of the prohibition against involuntary servitude found in the state and federal Constitutions.

 Regarding the latter argument, defendant lacks standing to raise the issue.   The claim of involuntary servitude, if it were to exist in this case, could only be raised by Wilson.  (See White v. United States Pipe & Foundry Co. (5th Cir.1981) 646 F.2d 203, 207.)   As for defendant's argument concerning Code of Civil Procedure section 284, it likewise lacks merit.

 At the time defendant requested counsel, he was representing himself.   Wilson had been relieved from the case in November when defendant's Faretta motion was granted.   By its terms, Code of Civil Procedure section 284 pertains to the attorney of record in a case, and his or her client.   It does not include the potential “new” attorney within its terms.   Thus it is not relevant to the instant matter.

 Lastly, defendant's assertion that the court's appointment of Wilson without Wilson's consent violated defendant's right to represent himself is not supported by the record.   Following the December 27 hearing, defendant did not express a wish to represent himself at trial, only a desire to be allowed to act as cocounsel.

 Defendant next contends the court committed prejudicial error in denying Wilson's January 17 motion to be relieved as counsel.   Wilson moved for withdrawal on the ground that defendant's conduct had rendered it unreasonably difficult for him (Wilson) to carry out an effective defense.   The instances of defendant's conduct cited by Wilson in his moving papers and at oral argument were that defendant had withdrawn his waiver of time thereby forcing Wilson to trial without time to prepare, and that he had further refused to provide Wilson with exhibits, diagrams, and maps necessary for a proper preparation of the case.   At the hearing on the motion, the court considered Wilson's assertions and inquired into the area of defendant's willingness to cooperate with Wilson.   The court then denied the motion.

“The granting or denying of a motion by an attorney to withdraw lies within the sound discretion of the trial court.  (People v. Cohen (1976) 59 Cal.App.3d 241, 249 [130 Cal.Rptr. 656]․)”  (People v. Brown (1988) 203 Cal.App.3d 1335, 1340, 250 Cal.Rptr. 762.)   In this case, defendant has not demonstrated an abuse of such discretion.

In considering Wilson's motion, the trial court inquired into his current relationship with defendant.   The court satisfied itself that, at that point in time, defendant was willing to cooperate with Wilson.   Moreover, the court heard this motion immediately following defendant's motion for substitution of counsel, wherein the working relationship between Wilson and defendant was explored at length outside the prosecutor's presence.   After listening to Wilson's concerns, the court concluded that Wilson could effectively represent defendant, noted that procedurally the case was “on the eve of trial,” and that Wilson had been involved in the case since its inception.   The court then denied the motion.   There is no showing that the court abused its discretion under these circumstances.

Defendant's main argument with the court's failure to allow Wilson to withdraw appears to be related to the court's subsequent denial (in part) of the motion to continue the trial until January 23.   We will address that concern in our discussion of defendant's challenge of the denial of the continuance motion.

 Defendant also assigns error to the court's denial of his motion for substitution of counsel, which was heard at the same time as Wilson's motion to withdraw.   Defendant's motion was made pursuant to People v. Marsden, supra, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44, wherein the Supreme Court articulated the rule that “When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance.  [Citation.]  A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.  [Citation.]”  (People v. Crandell (1988) 46 Cal.3d 833, 854, 251 Cal.Rptr. 227, 760 P.2d 423.)   The fundamental issue to be considered in a Marsden hearing is whether the continued representation by an appointed counsel would substantially impair or deny the right to effective counsel.   (Ibid.)

In this instance, the trial court held a hearing outside the presence of the prosecutor during which defendant had the opportunity to present his complaints regarding Wilson's conduct and to cite what he believed were specific examples of ineffective representation.   Defendant's chief complaint on this issue seems to be that the court's decision was erroneous because Wilson was not prepared to go forward at the time the court heard the motions.   He argues, therefore, that continued representation by Wilson at that time substantially denied him effective assistance of counsel.

We disagree.   Having reviewed the transcript of the Marsden hearing, we find no evidence that Wilson's earlier representation of defendant was inadequate, or that there existed an irreconcilable conflict between the two.   Furthermore, there was no evidence to demonstrate that Wilson would not be prepared for trial by the time it commenced.

Defendant again argues that the court's denial of his motion abridged his right to represent himself, and again we disagree.   The transcript does not reflect that defendant was asking to represent himself in the event the court denied his request to have Wilson relieved.   Defendant reasserted his wish to act as co-counsel, but at no time indicated that he wanted to represent himself in the trial.   Accordingly, we find no error in the court's denial of the Marsden motion.

2. Motion to Continue

 Next, defendant contends that the court erred in denying the motion to continue the trial until January 23 made by Wilson at the January 17 proceedings.   He argues that he was prejudiced by this denial because Wilson did not have time to prepare properly.

“It has long been the rule in California that an application for a continuance is addressed to the sound discretion of the trial court.   [Citation.]  In the absence of a clear abuse of discretion, the trial court's determination will not be disturbed on appeal.”  (People v. Yackee (1984) 161 Cal.App.3d 843, 848, 208 Cal.Rptr. 44.)   We find no abuse under the circumstances of this case.

The actual crime in this matter occurred in early December, 1987.   Trial was originally set for August 1, 1988.   It was continued several times at defendant's request until October 31, 1988.   At that time, defendant undertook to represent himself, and the court granted another continuance until December 19, 1988, to allow defendant time to prepare for trial.   When the case was called for trial in December, defendant stated he was not prepared to go forward and requested reappointment of counsel.   The court appointed counsel and continued the matter to January 11, 1989 for identification of counsel and resetting of trial.   On January 11, defendant withdrew his waiver of time and trial was set for January 17.

At that hearing, the trial court was confronted with a motion for withdrawal of counsel, a Marsden motion, and a motion to continue the trial one week until January 23.   Having denied the first two motions, the court considered the request for continuance.   The court took into consideration the fact that the trial was scheduled to begin that date, that some of Wilson's inability to prepare had been caused by defendant who now agreed to cooperate with counsel, that although Wilson had not been involved in the case the prior two months he was very familiar with it as he had been extensively involved earlier.   The court ruled that it would grant a one-day continuance to give counsel time to prepare and noted he could further prepare during the People's case.   The court also stated it would not preclude a midtrial continuance if counsel had any problem with witness availability.

On January 19, the court denied defendant's renewed request for a continuance until January 23, and indicated it would proceed with jury selection.   The court did, however, rule that it would not actually start the case until the 23rd.

We find no abuse of discretion under these circumstances.   We have examined the cases cited by defendant in his brief with respect to this argument, and find nothing which indicates a contrary result is required.   The policy of the state to encourage the prompt resolution of criminal proceedings (see § 1050), along with the record of the court's consideration of the motion, compel a finding that the court's denial of the motion was an appropriate exercise of discretion.   Accordingly we need not discuss defendant's arguments regarding the prejudicial effect of an abuse of discretion.

3.–6. ***

POST–TRIAL PROCEEDINGS

1. The Faretta Motion

 Defendant contends the trial court's denial of his request to represent himself during post-trial proceedings, made after the jury had announced its decision and been dismissed, violated his constitutional right to self-representation.   Generally, if a request for self-representation is uneqivocally asserted within a reasonable time before the commencement of a trial, and if the assertion is voluntarily made with an appreciation of the risks involved, the trial court has no discretion to deny it.  (Faretta v. California, supra, 422 U.S. 806, 95 S.Ct. 2525;  People v. Windham (1977) 19 Cal.3d 121, 137 Cal.Rptr. 8, 560 P.2d 1187.)   A request for self-representation asserted for the first time after trial has commenced, however, is based on nonconstitutional grounds and is addressed to the sound discretion of the trial court.  (People v. Windham, supra, at p. 129, 137 Cal.Rptr. 8, 560 P.2d 1187.)

Defendant argues the court did not have discretion to deny his request because it was made after the trial had concluded, and was timely with respect to the commencement of the post-trial proceedings.   The question presented then is whether a defendant's unconditional right to represent him or herself is somehow reinstated upon the conclusion of trial with respect to post-trial proceedings, or whether the court continues to have discretion to grant or deny the request.

We have found no case dealing directly with this issue.   The general rules and policies governing a trial court's consideration of a Faretta motion are set forth in People v. Windham, supra, 19 Cal.3d at pp. 127–129, 137 Cal.Rptr. 8, 560 P.2d 1187:  “[I]n order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial.   Accordingly, 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, irrespective of how unwise such a choice might appear․  However, once a defendant has chosen to proceed to trial represented by counsel, demands by such defendant that he be permitted to discharge his attorney and assume the defense himself shall be addressed to the sound discretion of the court.   When such a midtrial request for self-representation is presented the trial court shall inquire sua sponte into the specific factors underlying the request thereby ensuring a meaningful record in the event that appellate review is later required.   Among other factors to be considered by the court in assessing such requests made after the commencement of trial are 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.   Having established a record based on such relevant considerations, the court should then exercise its discretion and rule on the defendant's request.”

 In our opinion, Faretta motions made after trial, but before the commencement of post trial proceedings, are nonetheless motions made after the commencement of trial, and are to be addressed to the sound discretion of the trial court.   The federal constitutional right of self-representation found by the Supreme Court in the Faretta case is premised upon the fundamental Sixth Amendment concept that an accused has a right to present to the trier of fact the defense he or she chooses.  (Faretta, supra, 422 U.S. at pp. 818–821, 95 S.Ct. at pp. 2532–2534.)   An accused's implicit right to personally present the chosen defense is unconditional, so long as it is knowingly and intelligently asserted, in a timely fashion.   (Windham, supra, 19 Cal.3d at p. 128, 137 Cal.Rptr. 8, 560 P.2d 1187.)   A “timely” Faretta motion has been defined as one which is brought prior to the commencement of trial.  (Id. at p. 128, 137 Cal.Rptr. 8, 560 P.2d 1187;  People v. Joseph (1983) 34 Cal.3d 936, 943, 196 Cal.Rptr. 339, 671 P.2d 843;  People v. Burton (1989) 48 Cal.3d 843, 258 Cal.Rptr. 184, 771 P.2d 1270.)   A motion made after this period does not have a constitutional basis and is addressed to the sound discretion of the trial court.  (People v. Hernandez (1985) 163 Cal.App.3d 645, 650, 209 Cal. Rptr. 809;  People v. Hamilton (1988) 45 Cal.3d 351, 369, 247 Cal.Rptr. 31, 753 P.2d 1109.)   The timeliness requirement is intended to prevent the defendant from misusing the motion to unjustifiably delay the preceedings or obstruct the orderly administration of justice.  (Windham, supra, 19 Cal.3d at p. 128, 137 Cal.Rptr. 8, 560 P.2d 1187.)

Considered in this context, defendant's proposition that the unconditional constitutional right re-attaches to post-trial proceedings, makes little sense.   The constitutional basis supporting the right to represent one's self is grounded on the accused's right to present the defense of his or her choice.   Once the trial has concluded, this right has in large part been exercised.   Moreover, policy considerations to prevent abuse of the motion remain important in post-trial proceedings.

There is little doubt that the court's exercise of discretion will be affected by the stage of the proceedings when the Faretta motion is made.   For example, a delay before a motion for new trial may not have the same consequences as a delay occasioned the day of trial.   Indeed, the Supreme Court has directed trial courts specifically to consider “the length and stage of the proceedings” in determining whether to grant or deny a defendant's request.  (Windham, supra, at p. 128, 137 Cal.Rptr. 8, 560 P.2d 1187.)   But the fact that there are different considerations underlying a trial court's decision at post trial proceedings does not change the nature of the right into an unconditional one.

Defendant's reliance upon People v. Clark (1990) 50 Cal.3d 583, 268 Cal.Rptr. 399, 789 P.2d 127, to support his argument is misplaced.   The Clark case involved a situation wherein the defendant in a capital case was allowed to represent himself during the penalty phase of the trial.   The jury returned a verdict of death.   On appeal, he claimed that the trial court erred in allowing him to represent himself.   In rejecting his argument, the Supreme Court found that “the right to self-representation recognized in Faretta ․ is not limited to defense during the guilt phase of the trial, but extends to the penalty trial in a capital case.”  (Id. at p. 617, 268 Cal.Rptr. 399, 789 P.2d 127.)   Defendant argues that post-trial proceedings are procedurally analogous to the penalty phase in a capital case in that they constitute separate proceedings, and thus we should find an absolute right to self-representation at post-trial proceedings.

We reject this argument because we do not believe Clark stands for the proposition that a defendant has an absolute right to represent himself at the penalty phase of a capital case.   In the Clark case, the Supreme Court did not discuss whether the right to self representation was unconditional or discretionary with respect to penalty phase proceedings.   The court did however analyze the trial court's ruling with respect to the issue, taking into consideration all the factors the trial court used in reaching its decision.   Observing that the trial court's decision was supported by the record, the court found it had not committed error.   This analysis suggests that the Supreme Court considered the court's decision a discretionary one, susceptible to abuse.

This interpretation of the Clark case is supported by the fact that the court relied upon the case of People v. Bloom (1989) 48 Cal.3d 1194, 259 Cal.Rptr. 669, 774 P.2d 698, in reaching its decision.   In Bloom, decided less than a year earlier, the court quite specifically held that a Faretta motion made for the first time at the penalty phase of a capital case does not have a constitutional basis and is addressed to the sound discretion of the trial court.  (Id. at p. 1220, 259 Cal.Rptr. 669, 774 P.2d 698.)

Defendant finds further support for his position in the Clark case in the language of footnote 26, page 618, of 50 Cal.3d, 268 Cal.Rptr. 399, 789 P.2d 127, wherein the court noted:  “In so holding [that the state's interest in ensuring a reliable death penalty determination may not be urged as a basis for denying a capital defendant his fundamental right to control his defense by representing himself at all stages of the trial] we necessarily reject defendant's argument that Faretta invalidates section 686.1, which mandated representation by counsel in all stages of a capital trial, only as to the guilt phase.   Nothing in that decision implies such a limitation, and both the common law and constitutional history on which the United States Supreme Court relied support our conclusion that the right is absolute.   [Citation.]”

We do not agree with defendant that this language constitutes a holding by the Supreme Court that the right to self-representation is absolute when asserted for the first time at the penalty phase of a capital case.   Rather, we believe the court's language that “the right is absolute” is implicity qualified to mean so long as it is asserted in a timely fashion.   To construe this language otherwise would be contrary to existing law.  (People v. Bloom, supra, 48 Cal.3d at p. 1220, 259 Cal.Rptr. 669, 774 P.2d 698;  People v. Hamilton, supra, 45 Cal.3d 351, 369, 247 Cal.Rptr. 31, 753 P.2d 1109.)

Defendant's reliance upon Menefield v. Borg (9th Cir.1989) 881 F.2d 696, is also misplaced.   In that case, the court determined that a motion for new trial is a critical stage of the proceedings under California law for purposes of considering a defendant's request to have counsel appointed.   The policies and concerns surrounding the right to appointment of counsel are vastly different from those surrounding the right to represent one's self, and the legal analyses traditionally applied with respect to the two rights are likewise different.   Consequently, the decision in Menefield is not relevant to this case.

 Having concluded that the trial court did in fact have discretion to grant or deny defendant's post-trial Faretta motion, we now find, after reviewing the transcript of the hearing, that the court did not abuse its discretion in denying the motion.   The court listened to defendant's explanations as to why he wanted to represent himself, which were based largely on his desire to allege inadequate representation as a ground for a new trial and sentencing considerations.   It conducted a lengthy discussion with defendant regarding these concerns.   The court then denied the motion, noting it had considered defendant's proclivity and attendant delay throughout the proceedings to substitute counsel, the reasons for defendant's request, the adequacy of the representation given defendant at trial, and the length and stage of the proceedings.   The court concluded that defendant's request would cause undue delay and that most of his concerns could be met without him having to represent himself.   These factors were appropriately relied upon by the court in reaching its decision;  no abuse of discretion has been demonstrated.  (People v. Windham, supra, 19 Cal.3d at p. 129, 137 Cal.Rptr. 8, 560 P.2d 1187.)

2.–3. †

The judgment is affirmed.

FOOTNOTES

1.   Penal Code section 245 subdivision (b) was renumbered by legislative action in 1989, and is now known as section 245, subdivision (c).  (See Stats.1989, ch. 1167, § 1.)   For purposes of this appeal, we refer to section 245, subdivision (b).   Also, all further statutory references will be to the Penal Code, unless otherwise indicated.

2.   People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44.

3.   Code of Civil Procedure section 284 provides:  “The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows:  [¶] 1.   Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes;  [¶] 2.   Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.”

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.    See footnote *, ante.

AGLIANO, Presiding Justice.

PREMO and COTTLE, JJ., concur.