[00:00:12] Speaker 02:
Good morning. The honors may please the courts. Brad Kieserman on behalf of Mr. Ayala.

[00:00:18] Speaker 02:
The Court of Appeal made three unreasonable determinations under EDPA.

[00:00:23] Speaker 02:
It unreasonably determined that the request was made on the day of trial as opposed to when the Ferreta request was filed with the court.

[00:00:34] Speaker 02:
It unreasonably determined that the request was made for purposes of delay and even though Ayala had objected multiple times to continuances and, on the day of trial, elected against receiving new counsel, which would have resulted in a six-month delay.

[00:00:54] Speaker 02:
And third, the Court of Appeal unreasonably determined that Ayala's prior conduct could have been a reason to deny the Ferreta request, which is contrary to Illinois v. Allen, which requires that a warning be given after self-representation has begun.

[00:01:15] Speaker 02:
It's our position that the timeliness issue by itself even forecloses the need to consider the other two issues.

[00:01:26] Speaker 02:
That because Mr. Ayala made a timely request three weeks before trial began, which is consistent with Verretta, that that was All that needed to be determined and that the trial court's denial, therefore, of his request on the day of trial was error.

[00:01:51] Speaker 02:
Ferreta makes clear that a request made weeks before trial is timely. And under Houston v. Lack, 487 U.S. 266, a filing is complete.

[00:02:07] Speaker 02:
when delivered to and received by the clerk or court official.

[00:02:12] Speaker 02:
The record is clear here.

[00:02:14] Speaker 02:
The minute order shows that Mr. Ayala's request was received into the court file on January 29th, three weeks before the trial court held a hearing on the request, which was the day of trial.

[00:02:33] Speaker 02:
Houston VLAC also stands for the prison mailbox rule, which provides that when an inmate delivers a document to a prison guard or official, that that constitutes the filing date.

[00:02:49] Speaker 02:
Here, Ms.

[00:02:50] Speaker 02:
Ayala delivered his request to the bailiff, who then turned it into the court. So even if the bailiff had not provided it to the court, under Houston v. Lack, U.S. Supreme Court authority, that request would still have been considered filed three weeks before the hearing on the Ferreta request.

[00:03:11] Speaker 02:
But not only did the bailiff receive it, but the bailiff did submit it to the court, the clerk received it, so the court was in full receipt of the Ferreta request three weeks before trial.

[00:03:27] Speaker 02:
Regarding the unreasonable determination of intent to delay...

[00:03:32] Speaker 02:
Again, I will note that Ayala repeatedly objected to the continuances, refused to waive time at multiple hearings prior to the date of the trial, indicating that he wanted to move to trial immediately.

[00:03:50] Speaker 02:
When offered a six-month delay in addition to receiving new counsel, he declined that request because he was so intent on proceeding to trial.

[00:04:01] Speaker 02:
And even trial counsel noted Ayala's frustrations with the delays in proceeding to the second trial. And that's on to ER 158 to 159. And then lastly, there was an unreasonable determination of obstructionist conduct.

[00:04:21] Speaker 02:
Ferreta cites that, quote, the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct. It does not provide for a court to deny self-representation at the outset before any warnings have been given or anything of that nature.

[00:04:47] Speaker 02:
Here, Mr. Ayala was not self-representing, and while there were some prior conduct, most of which occurred actually outside of the courtroom, which we also argue is irrelevant.

[00:05:00] Speaker 02:
There had been no compliance with Illinois v. Allen that there was a warning and then a subsequent violation.

[00:05:09] Speaker 02:
Unless the court has any further questions, I will reserve.

[00:05:12] Speaker 04:
All right. Thank you.

[00:05:14] Speaker 02:
Thank you.

[00:05:32] Speaker 01:
Good morning, Your Honors. It may please the court. Deputy Attorney General Jonathan Krause on behalf of Respondent.

[00:05:39] Speaker 01:
I think it is worth noting here that before Petitioner brought this claim or brought this case to federal court, there was no dispute about one fundamental truth about this case, and that is that Petitioner's Ferretta request was untimely because he did not present that request to the trial judge until the day of trial, as Ferretta makes clear is required.

[00:05:56] Speaker 04:
Was there a change in judges between – assigned judges between January – and January 29th and February 19th?

[00:06:12] Speaker 01:
Yes, there was a new judge on the first day of trial, which was on the 19th.

[00:06:15] Speaker 04:
So is the role that you have to present it to the same, the judge who's going to hear the trial? I mean, how could he have known who to present it to? You know, January 29th was...

[00:06:31] Speaker 04:
SCHEDULED AS A TRIAL DATE, RIGHT? SO IT'S THE ARGUMENT THAT IT WAS SCHEDULED AS A TRIAL DATE AND THAT'S WHEN HE MADE IT, SO THEREFORE THAT'S ON THE EVE OF TRIAL OR THAT IT DEPENDS ON, YOU KNOW, WHEN A NEW JUDGE IS ASSIGNED TO DO THE TRIAL, THEN YOU TAKE THAT DATE WHEN THAT JUDGE GETS IT.

[00:06:53] Speaker 01:
WELL, YOUR HONOR, IT ULTIMATELY DOESN'T REALLY MATTER IN THIS CASE WHICH JUDGE, THE FACT THAT THERE WAS A NEW JUDGE IN THE 19TH, THAT'S TRUE. The important point under Ferretta purposes, because that is the controlling law in this area, is that there was no request made to any trial judge until February 19th.

[00:07:08] Speaker 04:
But he filed it on January 29, or he handed it to the bailiff.

[00:07:12] Speaker 01:
And that's an important distinction. He did not present this, and again, Ferretta makes very clear, Ferretta doesn't say a lot about the time and his requirement. What it does say is clear. The request must be made to the trial judge, and this is not simply a formulistic,

[00:07:24] Speaker 04:
You know if there's a change in trial judge. I mean, he was making it to the judge that was supposed to do the trial.

[00:07:31] Speaker 01:
But I think the important point, Your Honor, is he didn't actually make that request. You're right, Your Honor. Had he made that request, let's say orally, like happened in the Tamplin case that he relies upon, to that judge on January 29th, then we wouldn't be talking about this.

[00:07:43] Speaker 03:
Can't we infer that the court received the request on January 29th, given that his request was noted in the minute entry dated January 29th?

[00:07:51] Speaker 01:
No, Your Honor, we can't infer that. And we certainly know that what he did here was that he filled out the waiver form. Again, as the record says, it doesn't say a lot about it. It does say that he filled it out off the record, outside of the presence of the court and the attorneys, handed it to the bailiff, and, yes, apparently it was put into the file on that day. That was not a filing as far as California law is concerned, but as the district court pointed out, that determination of whether it was filed or the mailbox rule discussion that counsel is bringing up is really irrelevant here. What matters is that when it – the only question that matters – under FERETA is when it was presented to the trial judge.

[00:08:24] Speaker 01:
And it was not presented to the trial judge, as the Court of Appeal and the District Court ultimately agreed, was not presented to the trial judge until the day of trial. That was the first and only time that the trial judge, whatever trial judge it would have happened to be, would have had a chance to evaluate that claim. I think it's important to highlight here as well that FERETA is not self-executing. It's not automatic. There's a reason why we have this requirement. There's a reason why FERETA, the Supreme Court case, made that clear.

[00:08:49] Speaker 00:
Counsel, I want to get really quickly some clarification here. So he hands it to the bailiff. If he had been able to file it with the clerk's office, is that different? Or are you saying no? He literally has to, in open court, say, Your Honor, I am requesting Ferretta. I don't want counsel representing me.

[00:09:10] Speaker 01:
That could be a different circumstance. Had he filed it as a written motion, a notice motion that had put the court and the attorneys on alert, as it were, that this was filed, certainly that could be a different scenario. That's not what happened here. I think what's important to note here is that this is, admittedly, it's kind of an unusual circumstance, factually. I don't think this sort of thing happens all the time. But the more important point for our purposes here is that this is not a circumstance that was contemplated by Ferretta, which, again, made clear the request must be made to the trial judge. And given that this is outside of the bounds of Ferretta, what Petitioner is asking this Court to do, essentially, is to extend the clear language of Ferretta to a circumstance that Ferretta never contemplated.

[00:09:47] Speaker 04:
And because Ferretta never contemplated that circumstance... Isn't it the state's fault that the judges switched and so the bailiff didn't hand it to that judge because there's now going to be a different judge?

[00:10:01] Speaker 01:
Your Honor, I don't think that's the issue in terms of which judge was presiding.

[00:10:04] Speaker 04:
It bothers me because I know how the state courts operate and I do know the state trial courts and I do know I mean, this wasn't in the record. I just inferred, and I was right, that it was a different judge. So, you know, it seems like the state has had – I mean, oh, we didn't receive the Ferreta – the Superior Court. We didn't receive the Ferreta request on time because that was a different judge, and now we've changed the judge.

[00:10:34] Speaker 04:
And so, I mean, it seems to me we should be evaluating whether January 29 was – untimely or not. It's not like when, because by operation of the state's superior court flawed system, the judge actually shows up to try the case.

[00:10:53] Speaker 01:
Well, Your Honor, again, I think the important point to highlight here is that Your Honor is bringing up issues of, I think, fairness and what's right and just for this petitioner, and I understand that.

[00:11:04] Speaker 01:
But again, the important point is under Ferretta, it doesn't matter which judge it was. It doesn't really matter ultimately, and there hasn't been a claim made by opposing counsel that the issue is that there was a new judge on February 19th and was on January 29th. The issue is that what he did here was not making a filing. It was not making an oral assertion. Had he simply said at the conclusion of that hearing, as the petitioner did in the Tamplin case that was decided by this circuit, I would like to represent myself. Had he said that, even though the judge was a different judge than ultimately tried the case, I don't think there would be any dispute here that that would have been a request made to the trial judge.

[00:11:38] Speaker 01:
What he did here was not making an oral request, which would have been the best. It was certainly something he was aware that he could do. Nor was it a written motion, which also would have been most likely acceptable in this case. What he did was do something that is totally outside of the bounds of how the court system works. And it's certainly entirely reasonable for us to assume, I think, that petitioner understood that when he placed that file or when he handed it to the bailiff, which is apparently what happened here, he probably understood or reasonably understood that that request would be considered on the next court date.

[00:12:09] Speaker 01:
Because the way that superior courts work is that once everyone has gone from the room, nobody's going to be looking at that file absent a written motion that would alert the attorneys in the court. So nobody was going to be considering that until the next day. And I think the other important point I want to make here is that, and I said this earlier, but there was no dispute about this below. The superior court understood that this was an untimely request. Petitioner never said on February 19th, you know, Your Honor, you're treating this as untimely, but I made this three weeks ago. He never said that.

[00:12:39] Speaker 01:
This was, in fact, an argument that when he made his arguments in the appellate courts, California Court of Appeal and Supreme Court, he presupposed the untimely nature of this request because he argued instead that there was an abuse of discretion under the state law wind-up factors, which he talks about again here. Those only come into play. They only matter at all. They're only relevant at all in the case of an untimely request. It is only now in federal court, in the district court and now here, that petitioner has changed the argument somewhat to say not that there was an abuse of discretion, likely because that's a non-cognizable claim and can't be considered here.

[00:13:11] Speaker 01:
But instead he frames it as a timeliness argument that he never made before because everybody, and I mean everybody, the petitioner himself, his attorney, the courts, the prosecutor, everybody understood what this was, which was an untimely request. Why? Because it was not considered by the trial judge until February 19th. That was the first and only time a trial judge, no matter which trial judge it was, had a chance to consider the request. Because, again, these requests are not automatic. They don't have to be granted, even if timely. They have to determine if they're knowing and voluntary and things like this.

[00:13:45] Speaker 01:
And that's the first and only time the court had an opportunity to do that. And the other point I want to make is that even if this had been an untimely request, he still could have had it granted under the state law win-win factor. So it's not like this court would be saying, well, it's untimely and he's out of luck and that's unfair to him. It still could have been granted, despite the fact that it was untimely, under state court law, which I know doesn't concern the court here, but that, I think, is the important issue. Petitioner had the opportunity to make this request to the trial judge. He didn't do that. What he did here is unusual but is not something that is contemplated by Ferretta, and because it is outside of the realm of the four corners of Ferretta, the Court of Appeals' conclusion that this was untimely could not be, possibly be, an unreasonable application of Ferretta.

[00:14:31] Speaker 01:
If there are no other questions, I'm prepared to submit.

[00:14:34] Speaker 04:
Thank you.

[00:14:35] Speaker 01:
Thank you.

[00:14:44] Speaker 02:
Thank you. I have a few points I do want to respond to. First, opposing counsel never addresses the fact that there is U.S. Supreme Court authority on what constitutes a filing and on the prison mailbox rule, both of which support a finding that the request was made on January 29th. They try to make some distinction between a court clerk and the court itself. I'm not aware of any case law that supports that distinction.

[00:15:18] Speaker 02:
Even a lawyer can't just stroll into a judge's chambers and make a request or submit a filing. The court clerk is the intermediary. And, you know, certainly for an inmate that is, you know, there's a much greater distance between the ability to actually make a request directly to a judge. The clerk is the only way to really do that.

[00:15:39] Speaker 03:
But how do we bridge that gap to conclude that the judge received the request?

[00:15:45] Speaker 03:
Again, this... And I asked the question to your friend on the other side about inferring, but, I mean, that still requires an inference where FREDA requires the judge to... know of the request. So how can we bridge that gap here?

[00:16:00] Speaker 02:
You know, one, I think we can infer that the request is significant enough that with competent communication between the clerk and the judge that that request would be relayed. Two, we can infer that with this case going to trial, that the judge would have been reviewing that and seeing what had been filed and what was happening with the case.

[00:16:26] Speaker 02:
But again, this distinction between the court clerk and the court is just not supported by the case law. A filing is a filing with the court. And just like this other case law about prosecutors and law enforcement and knowledge is sort of imputed from one to the other, and similarly here I would say knowledge has to be imputed to the judge once that filing is made with the court. The defendant has no other option.

[00:16:56] Speaker 02:
And, you know, we can even hypothesize an instance where maybe a defendant mails a ferrata request months before a hearing and then goes, but then the judge just sits on it and, you know, there's no hearing on it until right before trial. You know, to allow that to be declared untimely seems to really undermine the ferrata right itself.

[00:17:22] Speaker 02:
You know, and I also want to note that the Filing was made, opposing counsel said otherwise, but I've cited in my briefing in the reply brief that, you know, the filing was also made in compliance with California law and that it was a proper filing under California law.

[00:17:42] Speaker 02:
Opposing counsel makes references to the superior court finding it untimely. The request in time with the Superior Court never makes that finding. That's a finding that is made by the Court of Appeal.

[00:17:57] Speaker 02:
Essentially what happened is Mr. Ayala argued that the trial court erred in denying his forerunner request, and then the Court of Appeal made all of these, its own conclusions about what the trial court could have found, or with the...

[00:18:15] Speaker 02:
Timeliness made its own determination of untimeliness and used that. But Mr. Ayala actually relied on, and this is on 1ER33, he relied on People v. White, and the Court of Appeals said, well, actually, People v. White doesn't apply here because, you know, we find that this was untimely, and People v. White dealt with a timely request. So the fact that Mr. Ayala relied on People v. White shows that there was no presumption of untimeliness.

[00:18:47] Speaker 02:
He was arguing that it was a timely request that the court denied by essentially demanding readiness immediately and then ultimately denying. So the director's cleared. This was handed to the bailiff. This was placed in the court file, the court file of the trial judge on that date.

[00:19:13] Speaker 02:
It was received into the court, you know, that complies with the U.S. Supreme Court authority. It complies with California court authority that this was a proper filing, a proper request. And, again, we're dealing with an incarcerated defendant who's trying to represent himself, and this was his only means of making that request at that particular time that he decided to represent himself to the judge. Unless there are any further questions, I will submit.

[00:19:38] Speaker 04:
Okay. Thank you, counsel.

[00:19:39] Speaker 02:
Thank you.

[00:19:40] Speaker 04:
Ayala, Bruce Azarias is submitted. This session is adjourned for today. Thank you.

[00:19:51] Speaker 03:
All rise.

[00:19:59] Speaker 03:
This court for this session stands adjourned.