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Name: People v. Tena
Case #: B189667
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 10/29/2007

Appellant was not entitled to relief on appeal because of the denial of his Faretta requests prior to the preliminary hearing. Prior to the preliminary hearing, Tena complained to the court that his attorney had declined to subpoena several witnesses to the preliminary hearing. The court responded that he should discuss this with counsel. Tena responded that he wanted to “go pro per.” Without discussion, the court denied his request. On the date of the preliminary hearing, Tena made a Marsden motion, which was also denied. He followed that with a Faretta motion, which was also denied as untimely. Tena did not renew his request to proceed in pro per during the rest of the proceedings, including at trial. Following conviction, Tena contended on appeal that the trial court improperly denied his motion for self-representation under Faretta v. California. The appellate court held that appellant’s remarks were not an unequivocal request for self-representation, but an impulsive reaction to secure an attorney who would subpoena the witnesses he desired. This was corroborated by his subsequent behavior in raising a Marsden motion. Tena also waived his right to self-representation because he abandoned his request after the preliminary hearing. Further, the denial of self-representation at the preliminary hearing is subject to harmless error analysis. Here, there was no prejudice. Following the preliminary hearing, Tena appeared with the retained counsel of his choice, who represented him throughout trial.