P. v. Ortega

Filed 2/10/17 P. v. Ortega CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
GILBERT ORTEGA,
Defendant and Appellant.
B271433
(Los Angeles County
Super. Ct. No. BA430090)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Norman J. Shapiro, Judge. Affirmed.
Daniel Milchiker, under appointment by the Court of
Appeal, for Defendant and Torres.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Colleen M. Tiedmann and Eric J.
Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
_____________________________

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A jury convicted Gilbert Ortega of second degree robbery in
violation of section 211 of the Penal Code,1 and the trial court
found Ortega had suffered various prior convictions, including a
prior strike conviction (§ 667, subds. (b)-(j)) and a prior serious
felony conviction (§ 667, subd. (a)). The court sentenced Ortega
to an aggregate term of 11 years in state prison comprised of the
mid-term of three years for the robbery, doubled to six years for
the strike, plus five years for a prior serious felony. Ortega
argues he was denied the right to testify in his own defense, and
that the trial court erred in denying his Marsden2 and Faretta3
motions, and his motion to suppress evidence. We affirm.
FACTS
On September 21, 2014, Juan Abarca and his girlfriend,
Brigitte Yosenia, decided to get something to eat at a taco truck.
Abarca parked his car, and he and Yosenia walked and
purchased food to eat. When they walked back to Abarca’s car,
Abarca and Yosenia found Ortega inside the vehicle. For a short
instance, Abarca and Yosenia thought they had approached the
wrong vehicle, and continued on. They quickly realized different,
and returned to Abarca’s car where Abarca asked Ortega what he
was doing. Ortega responded by getting out of Abarca’s car and
saying, “You know what I got for you? It’s a gun.” When Abarca
stepped backward, Ortega ran away. Abarca then discovered
1 All further undesignated section references are to the Penal
Code unless otherwise noted.
2 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
3 Faretta v. California (1975) 422 U.S. 806 (Faretta).

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that a number of personal items were missing from his car,
including an iPhone and a credit card.
On September 2, 2015, almost one year after Abarca had
been robbed, Los Angeles Police Department (LAPD) Officers
Miguel Herrera and Jose Bonilla searched Ortega after they
found him in a parked van at about three or four o’clock in the
morning. During this search, the officers found Abarca’s iPhone
and a credit card with Abarca’s name on it. After finding
Abarca’s property, the officers contacted him. Shortly thereafter,
Abarca and Yosenia were shown a six-pack line-up of
photographs, and both picked Ortega’s photograph as the robber.
At trial, Abarca identified Ortega as the person who had been in
Abarca’s car when Abarca’s property went missing; Yosenia
testified that Ortega looked “similar” to the person she had seen
in Abarca’s car, but his hairstyle was different.
In November 2014, the People filed an information
charging Ortega with the second degree robbery of Abarca.
(§ 211.) Further, the information alleged that Ortega suffered a
robbery conviction in 2004 that qualified as a strike and as a
prior serious felony. (§§ 667, subds. (b)-(j)); 667, subd. (a).) The
information alleged two prior convictions with a prison term.
(§ 667.5, subd. (b).) The charges were tried to a jury in June
2015, at which time the prosecution presented evidence
establishing the facts summarized above. Ortega did not present
any evidence; his trial counsel urged the jurors to view the
eyewitness testimony of Abarca and Yosenia as not sufficiently
credible to sustain a guilty verdict. The jury returned a verdict
finding Ortega guilty as charged. The trial court thereafter
found, based on Ortega’s admissions, that he suffered the prior

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convictions alleged in the information. The court later sentenced
Ortega as noted at the outset of this opinion.
DISCUSSION
I. The Right to Testify Claim
Ortega contends his robbery conviction must be reversed
because the trial court violated his constitutional right to testify
in his own defense. We disagree.
The Governing Law
“The right to testify on one’s own behalf at a criminal trial
has sources in several provisions of the Constitution. It is one of
the rights that ‘are essential to due process of law in a fair
adversary process.’ [Citation.] The necessary ingredients of the
Fourteenth Amendment’s guarantee that no one shall be
deprived of liberty without due process of law include a right to
be heard and to offer testimony.” (Rock v. Arkansas (1987) 483
U.S. 44, 51.) The right to testify belongs wholly to the defendant,
and, thus, he or she may exercise the right even over the
objection of, and contrary to the advice of, defense counsel.
(People v. Bradford (1997) 15 Cal.4th 1229, 1332.) At the same
time, a defendant’s right to testify is subject to common sense
conditions. Specifically, the defendant must make both a “timely”
and “adequate demand to testify.” (See People v. Alcala (1992)
4 Cal.4th 742, 805 (Alcala).)
On appeal, a reviewing court in examining whether a
violation of the right to testify occurred will apply the abuse of
discretion standard to the trial court’s determination of the
elements of timeliness and the adequacy of the defendant’s
demand to testify. (People v. Earley (2004) 122 Cal.App.4th 542,
546-547.)

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Where a reviewing court determines that a violation of the
right to testify did occur, the violation is subject to harmless error
analysis under the federal constitutional standard set forth in
Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).
(Cf. People v. Allen (2008) 44 Cal.4th 843, 871-872 (Allen) [right
to testify reviewed under constitutional harmless analysis in the
context of a sexual predator proceeding].)
The Trial Setting
At the conclusion of the People’s case, the trial court on the
record indicated that the defense had advised the court that they
would not be calling any witnesses, including Ortega. A short
discussion followed on the issue of whether the People would be
allowed to reopen their case to have Ortega show tattoos on his
body. Shortly thereafter, in the presence of the jury, the court
asked Ortega’s counsel how the defense would like to proceed,
and counsel announced that the defense was resting. The court
then asked the prosecutor whether she had a request, and the
prosecutor asked to reopen for the purpose of having Ortega show
his tattoos. The court granted the request. During this process,
the prosecutor asked if Ortega could pull his shirt sleeve a little
bit open to show a tattoo, at which point the following exchange
took place:
“[Ortega]: I might as well. [¶] Can I say for
the record, I was willing to testify, sir?
“The Court: Sir, only if your attorney asks you
to give evidence. [¶] All. Right. Mr. Ortega is more
than complying. He’s actually taking his shirt off,
and he’s exposing his upper body, arms, chest,
stomach, at least most of the stomach area. [¶] All
right Mr. Ortega, that’s fine. Thank your very much.

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[¶] Ladies and gentlemen, does everybody have a
chance to --- all right. . . . All right. Miss
[prosecutor], anything else at this time?
“[The Prosecutor]: Nothing, your honor. The
People rest.
“The Court: All right. The People rest. [¶]
Anything further by the defense?
“[Defense Counsel]: No, your honor.
“The Court: Okay. We’ll give Mr. Ortega a
chance to get comfortable. [¶] Ladies and gentlemen,
I have a series of instructions I’m going to give
you. . . .”
At no point during the remainder of the criminal
proceedings did Ortega make any comment about testifying.
Analysis
The parties agree that the only issue on appeal is the issue
of whether Ortega made an “adequate” demand to testify in his
own defense. We find that Ortega did not make an adequate
demand to testify. Further, even were we to accept that there
was error, we would find the People have met their burden of
showing that the error did not adversely affect Ortega’s trial
beyond a reasonable doubt under Chapman. (See People v.
Jackson (2014) 58 Cal.4th 724, 793 [in examining a claim of
constitutional error under the Chapman standard, the burden is
on the state to demonstrate to the reviewing court that the error
did not cause prejudice to the defendant].)
Neither Ortega in his opening brief nor the People in their
respondent’s brief have discussed any case explaining the
quantum of clarity required for a defendant to make an

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“adequate demand to testify.” This said, we simply do not see
that Ortega made such a request. At best, Ortega made an off-
the-cuff remark as he was showing his tattoos: “I was willing to
testify.” He did not tell the trial court at that instant, or at any
time, that he actually did “want” to testify, nor did he actually
ask, request, or demand to be allowed to testify.
To avoid the conclusion that he did not make an adequate
demand to testify, Ortega argues on appeal that the trial court
should not have replied as it did to Ortega’s “I was willing to
testify” comment. He contends the trial court should have
conducted an inquiry about the comment to determine whether
Ortega actually did want to testify despite his counsel’s repeated
indications to the court that Ortega would not be testifying.
Ortega cites People v. Dent (2003) 30 Cal.4th 213 (Dent) in
support of his argument.
In Dent, the Supreme Court found that a trial court’s
response to a defendant’s “conditional” comments about
representing himself effectively “foreclosed any realistic
possibility” that the defendant would consider self-representation
to be “an available option.” (Dent, supra, 30 Cal.4th at p. 221.)
There, the trial court twice unequivocally stated that it would not
let the defendant proceed as a self-represented litigant in a death
penalty murder trial. The California Supreme Court found that
the trial court had deterred the defendant from being able to
develop and make the type of “unequivocal” request for self-
representation that is required under Faretta.
Assuming that the law regarding Faretta’s requirement
that a criminal defendant must make an “unequivocal demand”
for self-representation before a trial court may allow a defendant
to forego his or her legal counsel (see, generally People v. Wright

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(1990) 52 Cal.3d 367, 409) should be the same as the law
regarding the requirement that a defendant must make an
“adequate demand” to testify (Alcala, supra, 4 Cal.4th at p. 805),
Dent is readily distinguishable. Not only is it different because it
deals with a defendant’s assertion of his right to self-
representation, and not a timely and adequate demand to testify,
but also because the trial court here did not unequivocally shut
down the possibility of Ortega testifying.4 In sum, the Dent case
is not helpful to Ortega.
In any event, we would find any error to be harmless under
Chapman. The exclusion of a defendant’s testimony is harmless
error under a Chapman analysis when the facts to which he or
she would have testified would not have affected the verdict.
(Allen, supra, 44 Cal.4th at p. 872.) Here, Ortega argues on
appeal that he indicated during two Marsden hearings that he
would have testified (1) “that he was not in possession of the
stolen items;” (2) “the reasons he was in the white van;”5 and
(3) “that he was ‘innocent’ of the robbery.” We find any error
harmless under Chapman because testimony of the nature as
stated by Ortega, assuming that it would have been given as
stated, would have been futile and would not have affected the
jury’s verdict.
4 We do, however, caution the trial court to be more careful
in its statements to a defendant in such circumstances.
5 At a motion to suppress hearing which we discuss below, a
police officer testified that Ortega stated at the time he was found
in the van that he was homeless and was looking for a place to
sleep.

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First, the reason that Ortega was in the white van was
irrelevant to any issue involved in his robbery trial; the reason
Ortega was in the van a year after the robbery had nothing to do
with whether Ortega robbed Abarca a year earlier. Second,
testimony that Ortega did not have Abarca’s iPhone and credit
card when he was searched would simply have been rejected as
defying the physical evidence. We do not believe jurors would
find Officers Herrera and Bonilla were carrying around Abarca’s
property when they encountered Ortega. We can think of no
other scenario for why Abarca’s iPhone and credit card became
involved in Ortega’s case if, in fact, those items had not been in
Ortega’s possession at the time he was searched. In summary,
Ortega’s defense would not have been helped had Ortega given
implausibly wrong testimony.
This leaves only the prospect that the result of Ortega’s
case may have been different if only he gave testimony that he
was “innocent” of the Abarca robbery. This testimony, of course,
would have been given with a backdrop that he had prior
convictions for robbery (§ 211) and taking a vehicle without the
owner’s consent (Veh. Code, § 10851, subd. (a)). It also would
have been given against the identification of Abarca and Yosenia,
and against the fact that he possessed Abarca’s property.
In short, the evidence overwhelmingly supported Ortega’s
conviction, and any testimony on his part would not have
changed the result of his trial.
II. The First Marsden Motion Claim
Ortega contends his robbery conviction must be reversed
because the trial court erred in denying his Marsden motion.
We disagree.

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The Trial Setting
At a pre-trial hearing on January 16, 2015, about six
months before his trial, Ortega filled out a Faretta waiver form
after defense counsel indicated to the trial court (Hon. Laura F.
Priver) that Ortega wanted to represent himself. After receiving
the waiver, the court began discussing the right to self-
representation with Ortega, including the risks. During the
course of these exchanges, Ortega made statements indicating his
dissatisfaction with his appointed counsel, including the
following comment:
“At this point I’m just trying to make a
conscious decision that’s gonna help me better fight
this case and at this time the requests I’ve been
making I feel like I’m getting negative results so
I don’t know what else to do. Like I really don’t—I
would really much rather have an attorney and
request maybe possibly getting an attorney that I can
come to terms with as far as— ”
On hearing Ortega’s comment, the court decided that it
should treat his request for self-representation as a request for a
Marsden hearing. During an ensuing hearing outside the
presence of the prosecutor, Ortega’s counsel, Public Defender
Susanne Blossom, told the court that it was true that she had not
done certain things that Ortega wanted her to do, and then
explained what Ortega wanted her to do, and why she had not
done what he wanted. According to Blossom, Ortega wanted his
case transferred to “Judge Rubin’s court.” When the court
commented that Judge Rubin was retired, and that it was
“impossible” to accommodate Ortega’s desire, Blossom stated,

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“right,” to both aspects of the court’s comments. Further, the
court stated for its part that a party is not allowed to select a
specific courtroom for a case in any event.
Blossom also informed the court that Ortega wanted
Blossom to give the court some letters that he wrote to the court.
Blossom stated that she had declined to do so because her case
tactics “involve[d] not permitting [a] client to speak until the time
they choose to testify.”
Finally, Blossom stated that Ortega wanted Blossom to file
a “Prop 47 petition.” Her reason for not doing so “was because his
open case in not a Prop 47 case,” and the court agreed. Blossom
added that Ortega’s prior robbery conviction the information
alleged was unaffected by Proposition 47.
At the end of the Marsden hearing, the court indicated that
it would “keep [Ortega’s Faretta waiver form] in the file without
acting on them,” and told Ortega that, if he changed his mind
about wanting self-representation and wanted the court to act on
his request for self-representation, then the court would “do
that.” Ortega replied, “Thank you.”6
6 Given the totality of the exchanges during the hearing on
January 16, 2015, we find the trial court impliedly found that
Public Defender Blossom’s representation of Ortega was not
deficient, and that there was no irreparable breakdown in the
attorney-client relationship affecting Ortega’s right to the
assistance of counsel. We acknowledge that the reporter’s
transcript shows no explicit ruling. The court’s minute order
states that Ortega’s Marsden motion was denied.

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Analysis
A defendant’s constitutional right to assistance of counsel
includes the right of an indigent defendant to have appointed
counsel replaced when the failure to do so would substantially
impair or deny the right to assistance of counsel. (Marsden,
supra, 2 Cal.3d at p. 123.) At the same time, however, a
defendant's right to appointed counsel does not include the right
to demand the serial appointment of different lawyers until he or
she finds a lawyer to his or her liking. (People v. Ortiz (1990)
51 Cal.3d 975, 980, fn. 1.) When a defendant seeks to discharge
his or her appointed lawyer and substitute a new lawyer,
Marsden dictates that the trial court must permit the defendant
to explain the basis of his or her dissatisfaction. A defendant is
entitled to relief when he or she shows that appointed counsel is
not providing effective representation, or that there is an
irreconcilable conflict in the relationship between the defendant
and counsel such that ineffective representation is likely to
result. (People v. Streeter (2012) 54 Cal.4th 205, 230.)
A defendant is not entitled to relief merely because he or she
disagrees with counsel over reasonable tactical decisions.
(People v. Memro (1995) 11 Cal.4th 786, 858.)
When credibility questions arise between a defendant’s
assertions, and appointed counsel’s explanations regarding the
representation, it is within the trial court’s credibility-
determining role to accept counsel’s explanations. (People v.
Smith (1993) 6 Cal.4th 684, 696.) The court's ultimate task is to
determine factually and legally whether appointed counsel’s legal
representation is constitutionally ineffective, or whether an
irreconcilable conflict exists.

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A trial court’s decision to deny a Marsden motion is
reviewed under the abuse of discretion standard. (People v. Earp
(1999) 20 Cal.4th 826, 876.) A reviewing court will not find an
abuse of discretion unless the defendant has shown that a failure
to replace the appointed counsel actually resulted in a
substantial impairment or denial of his or her right to assistance
of counsel. (People v. Hart (1999) 20 Cal.4th 546, 603.)
Having reviewed the reporter’s transcript of the Marsden
hearing in light of the above-stated rules, we simply do not accept
Ortega’s argument that the trial court “fail[ed] to address [his]’s
concerns” and “fail[ed] to question appointed counsel regarding
those concerns.” Here, the record shows the court conducted a
hearing, and listened to what was going on. Public Defender
Blossom’s comments showed no more than that Ortega wanted
his case to unfold in a manner that was not proper, and or that
he had other ideas about the tactics which should have been
being employed. We see no support for a conclusion that Public
Defender Blossom was providing inadequate representation.
Neither do we see any support for a conclusion that there was an
irreconcilable breakdown in the relationship between Ortega and
Public Defender Blossom. Ortega’s opening brief makes allusions
about Public Defender Blossom’s “failure to investigate” Ortega’s
case, but we see no support for such an assertion in the record.
We add one final note on a matter that is not developed in
the parties’ briefs. At the time of Ortega’s Marsden motion in
January 2015, he was, as noted above, represented by Public
Defender Blossom. However, by no later than May 2015, Ortega
was represented by new appointed counsel, namely, Public
Defender Saewon Yang. Public Defender Yang continued to
represent Ortega through the time of his motion to suppress

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(filed in May 2015 and heard in June 2015), and the time of his
trial (in June 2015). We do not see how any complaints about
Ortega’s initial appointed counsel have anything to do with his
case where new and different appointed counsel took over for the
bulk of the case.
III. The Second Marsden Motion Claim
Ortega made another Marsden motion after the jury’s
verdict, on the day calendared for the hearing on the alleged
priors and for his sentencing. Ortega contends his robbery
conviction must be reversed because the trial court erred in
denying his post-verdict Marsden motion. He argues that our
court should, on reversal, remand his case with “directions for the
trial court to substitute counsel to prepare a new trial
motion . . . .” We find no ground for reversal.
We have set for the applicable law above. On the merits of
Ortega’s claim of post-verdict Marsden error, we find the trial
court did not abuse its discretion in denying the motion. The
reporter’s transcript of the Marsden hearing shows that the court
gave Ortega an opportunity to state his concerns regarding his
counsel’s representation. Ortega asserted that his motion to
suppress had not been “vigorously pursued” by Public Defender
Yang. Also, Yang had not issued a subpoena for the clothes that
Ortega had been wearing when he was searched. Ortega
asserted that his clothes would show that he did not have an
iPhone in his pockets, because, according to Ortega, the shorts he
was wearing “did not have pockets.” As Ortega stated, his clothes
would have been “exculpatory evidence.” Finally, Ortega
asserted that counsel should “file for retrial” based on his motion
to suppress claim and clothes claim.

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Throughout Ortega’s exchanges with the court, the court
indicated that Ortega was attempting to relitigate the motion to
suppress, and found no merit in Ortega’s assertions that the
motion should have been granted. After listening to Ortega, the
court asked Public Defender Yang to discuss Ortega’s claim about
his clothes. Yang explained that she had considered the
probative value of the clothes that he had been wearing when
searched as “very slight,” and had focused instead on the victim’s
identification of Ortega as the robber. When the court asked
whether the defense was considering filing a motion for new trial,
Yang said, no, that she did not believe a new trial motion would
be successful. Ortega further claimed that he asked his counsel
file a Romero motion to dismiss his prior strike (see People v.
Superior Court (Romero) 13 Cal.4th 497), but counsel had not
done so. The court ultimately noted that Ortega’s counsel
indicated that she was going to file such a motion at the
sentencing hearing.7
At the conclusion of the Marsden hearing, the court denied
Ortega’s motion, expressly finding that his counsel had not failed
to present a defense or litigate the case adequately.
We find no abuse of discretion in the trial court’s ruling to
deny Ortega’s post-verdict Marsden motion. First, with regard to
the rule that a trial court must conduct a hearing into a
defendant’s complaints, the record belies any assertion that the
court here did not do so. Second, with regard to the requirement
that a defendant demonstrate that his her counsel provided
inadequate representation, we see no deficiency. The record
7 In February 2015, Public Defender Yang filed a Romero
motion. The court denied the motion at the sentencing hearing.
Ortega does not challenge the court’s ruling on appeal.

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shows at most that Ortega disagreed with his counsel’s tactics.
There is no support for the assertion that Ortega’s motion to
suppress should have been a winner. Similarly, the assertion
that a new trial motion should have been filed does not support a
conclusion that Ortega suffered the results of deficient legal
presentation. The record does not include material showing that
a motion for new trial had a reasonable possibility of success.
Ortega’s claim about a failure to file a Romero motion was
premature.
We have read the reporter’s transcript from the hearing on
Ortega’s post-conviction Marsden motion and reject his
contention that the trial court did not give him a fair hearing
because the court was “hostile” to the motion. We acknowledge
that the court made several comments to the effect that Ortega
did not seem to understand the purpose of a Marsden hearing.
All this considered, we do not see hostility to the motion, only
rulings against the motion. The record does not support a claim
that the court failed to afford a fair hearing on the motion.
IV. The Faretta Claim
Ortega next contends his robbery conviction must be
reversed because the trial court erred in denying his request for
self-representation under Faretta. We disagree.
The Governing Legal Principles
A criminal defendant has a federal constitutional right to
represent himself provided that he or she voluntarily and
intelligently elects to do so. (Faretta, supra, 422 U.S. at p. 836;
and see, e.g., People v. Windham (1977) 19 Cal.3d 121, 124
(Windham ).) But to invoke the right of self-representation, a
defendant must assert the right “unequivocally” and “within a

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reasonable time prior to the commencement of trial.” (Windham,
supra, 19 Cal.3d at p. 128.)
A trial court “should draw every reasonable inference
against waiver of the right to counsel,” and, for this reason,
“the defendant’s conduct or words reflecting ambivalence about
self-representation may support the court’s decision to deny the
defendant’s motion. A motion for self-representation made in
passing anger or frustration, an ambivalent motion, or one made
for the purpose of delay or to frustrate the orderly administration
of justice may be denied.” (People v. Marshall (1997) 15 Cal.4th
1, 23 (Marshall); see also People v. Tena (2007) 156 Cal.App.4th
598, 607.)
A reviewing court must examine the entire record de novo
to determine whether a defendant actually made an unequivocal
request for self-representation. (Marshall, supra, 15 Cal.4th at
p. 23; People v. Danks (2004) 32 Cal.4th 269, 295.)
Analysis
We find Ortega did not make an unequivocal request for
self-representation as contemplated under Faretta. As
summarized above, the record shows that, when the trial court
began to discuss self-representation, Ortega responded as follows:
“ . . . I feel like I’m getting negative results
[asking my counsel to do things] so I don’t know what
else to do. Like I really don’t—I would really much
rather have an attorney and request maybe possibly
getting an attorney that I can come to terms with as
far as — ” (Italics added.)
As we noted, the trial court understood Ortega’s comments
to show that he truly wanted a Marsden hearing.

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Ortega’s comment cannot reasonably be construed as an
unequivocal request for self-representation because he explicitly
stated that he “would really much rather have an attorney,” and
that he was actually interested in “possibly getting an attorney
that [he could] come to terms with.” No more needs to be said.
Ortega’s language defeats any possible conclusion that he truly
desired to represent himself. (People v. Tena, supra, 156
Cal.App.4th at p. 607.)
Even assuming Ortega made an unequivocal request to
represent himself by requesting to fill out the court’s Faretta
waiver form, the record shows he abandoned his request for self-
representation. The Faretta right, “once asserted, may
be . . . abandoned.” (People v. Dunkle (2005) 36 Cal.4th 861, 909,
citing People v. Skaggs (1996) 44 Cal.App.4th 1, 8 (Skaggs) with
approval.) In Skaggs, the Court of Appeal found a defendant
abandoned his Faretta request where the court did not rule on an
equivocal request for self-representation, and the defendant
never mentioned the request again. (Skaggs, at pp. 7-8.) The
reason for finding abandonment in such circumstances is to
discourage “gamesmanship by preventing a defendant who
realizes that his Faretta request has not been addressed from
saving his ‘Faretta ace to play triumphantly on appeal.’” (Id. at
p. 8, quoting People v. Kenner (1990) 223 Cal.App.3d 56, 62.)
We have an even stronger showing of abandonment in
Ortega’s present case. Here, Ortega made an equivocal request
for self-representation, and, in response, the court actually did
act on the request – it treated the request as a request for a
Marsden hearing. At the conclusion of the hearing, the court
expressly told Ortega that the court would keep his Faretta
waiver form “in the file,” in the event that Ortega wanted to

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renew his request later in the case for self-representation.
Ortega never did so. Finding abandonment of a Faretta request
is appropriate in such circumstances. (Skaggs, supra, 44
Cal.App.4th at p. 8.)
V. The Motion to Suppress Claim
Ortega next contends his robbery conviction must be
reversed because the trial court erred in denying his motion to
suppress the items of Abarca’s property that LAPD Officers
Herrera and Bonilla found on Ortega’s person when they
searched him immediately outside the van in which the officers
found him. Ortega asserts Harvey-Madden error,8 arguing that
the radio report that the officers received regarding a possible
vehicle burglary was not corroborated, and, thus, the “the
prosecution failed to establish the source of probable cause
rendering [his] detention and search illegal under the Fourth
Amendment.” We find no error.
The Evidence
Officers Herrera and Bonilla testified at the hearing on
Ortega’s motion to suppress. The officers’ testimony was
consistent, and when viewed in support of the trial court’s ruling
as we must (People v. Glaser (1995) 11 Cal.4th 354, 362)
established the following historical facts. On September 2, 2015,
Officers Herrera and Bonilla were on patrol when they received a
radio report between approximately 3:00 to 4:00 a.m. regarding a
burglary from a motor vehicle. The report indicated that two
male Hispanics were trying to break into a white van at the
corner of 81st and Broadway. Upon arriving in the area, the
officers saw Ortega in the front seat of a white van. At about the
8 See People v. Harvey (1958) 156 Cal.App.2d 516 (Harvey);
People v. Madden (1970) 2 Cal.3d 1017 (Madden).

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same instant, Ortega looked in the officers’ direction and then
“crouched down.” The officers also saw a broken rear passenger
window, and glass on the ground by the passenger’s side of the
van. The officers pulled their patrol car in front of the van, got
out of the patrol car, and “ordered” Ortega out. While exiting on
the passenger side of the van, Ortega tossed a screwdriver inside
of the van on the floorboard. “Immediately” after Ortega got out
of the van, the officers handcuffed him and “patted” him down
“for officer safety.” During a search of Ortega’s pockets, the
officers discovered a cell phone, credit cards, and fake
identification. As noted above, further inquiry revealed that that
the iPhone belonged to Abarca, and that Abarca’s name was on
one of the credit cards.
Analysis
The Harvey-Madden line of cases establishes the
evidentiary rules that the prosecution must satisfy to “prove the
underlying grounds” for an arrest or detention “when the
authority to arrest [or detain] has been transmitted to the
arresting officer through police channels.” (People v. Collins
(1997) 59 Cal.App.4th 988, 993.) Harvey-Madden is irrelevant in
Ortega’s present case because the radio report received by
Officers Herrera and Bonilla is wholly unnecessary to consider in
examining whether the officers lawfully searched Ortega. The
radio report is needed for nothing more, if needed for anything at
all, than to set a background context for why the officers drove to
the area of 81st and Broadway at between 3:00 to 4:00 a.m. on
September 2, 2016. The officers, with or without a radio report
were entitled to drive their patrol vehicle to any public street
area in the city that they wanted. The critical examination in
this case is limited to whether, when the officers arrived in the

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area of 81st and Broadway, they acted lawfully. The answer to
that question is an easy yes.
When Officers Herrera and Bonilla arrived in the area of
81st and Broadway at between three to four in the morning, they
saw a parked van with a broken window and glass on the ground,
indicating the window had been broken fairly recently. They also
saw Ortega in the van. At about the same time, Ortega saw the
officers and tried to “crouch down.” Under any reasonable
determination of “reasonable suspicion” to investigate a possible
crime, the officers acted properly. (See generally Terry v. Ohio
(1968) 392 U.S. 1).) It is not correct, as Ortega says in his
opening brief, that the officers “were acting on information they
received through a radio [report].” The officers were acting on
what they personally observed at the scene.
In investigating the situation, Officers Herrera and Bonilla
were not, for safety reasons, prohibited from ordering Ortega to
get out of the van. (Cf. People v. Lomax (2010) 49 Cal.4th 530,
564 [once a vehicle has been detained in a valid traffic stop, police
officers may order the driver and passengers out of the car
pending completion of the traffic stop without violating the
Fourth Amendment].) Ortega offers no authority to dispute such
a conclusion; he focuses his argument solely on the reliability of
the facts relayed to the officers in the information, which, as we
noted above, are irrelevant.
As Ortega was getting out of the van, the officers saw him
throw a screwdriver onto the floorboard of the vehicle. At this
point, the officers likely had probable cause to arrest him for
vehicular burglary, but, even short of probable cause, they had
articulable reason for conducting a pat-down search of his body
for their own safety. Again, Ortega offers no legal authority to

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dispute such a conclusion in that he focuses his argument only
to the issue of the reliability of the facts relayed to the officers in
the radio report, which, as we noted above, are irrelevant.
Because the officers lawfully investigated the situation of
Ortega in a vehicle with a broken window, and lawfully
conducted a search for their own safety, Ortega has failed to
demonstrate that the trial court erred in denying his motion to
suppress the items found during the search.
DISPOSITION
The judgment is affirmed.
BIGELOW, P.J.
We concur:
RUBIN, J.
GRIMES, J.

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