P. v. Longorio
Filed 6/20/13 P. v. Longorio CA1/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
DANIEL
LONGORIO,
Defendant and Appellant.
A133104
(San Mateo
County
Super. Ct.
Nos. SC069278A,
SC069697A)
Daniel
Longorio was charged with multiple counts of
imprisonment, possession of a firearm by a felon and escape, with
allegations of personal use of a firearm, commission of crimes while on parole,
and prior convictions and prison terms.
He successfully moved to represent himself at trial, but was less
successful in his exercise of that right.
A jury convicted him of all charges and found the allegations true, and
the court sentenced Longorio to 198 years to life in prison. On appeal, Longorio argues his waiver of
representation was not knowing and intelligent because the court did not
accurately inform him of the maximum penalty he faced or adequately inform him
of the nature of the charges against him.
We find no error and affirm, but order a correction in the abstract of
judgment.
I. Background
On May 14, 2009, two armed men entered
the home of Quyen and Ken Lau, tied them up, and stole from them property worth
approximately $30,000. On June 24, 2009, Lina Chan’s home was
burglarized. Her property was later
found in Longorio’s home, where police also found a gun. Longorio admitted his involvement in the Lau
robberies and the Chan and other burglaries, and he led police on a tour of the
Lau and Chan crime scenes. Longorio’s
statements during the tour and during other interviews with the police were
recorded and ultimately played for the jury at his trial.
On August 11, 2009, while Longorio was
being transported to jail following a preliminary hearing on charges arising
from the aforementioned events, Longorio opened a van door using a razor blade,
ran into the street, and attempted to enter a commuter’s car. After he was apprehended and returned to
custody, Longorio explained that he was a “three-striker [who] saw a window of
opportunity [and] took it.â€
Two cases
were filed against Longorio. In superior
court case No. SC069278A, an amended information charged Longorio with two
counts of first degree burglary (counts 1, 2; Pen. Code, § 460, subd. (a)),
two counts of robbery (counts 3, 4; § 212.5, subd. (a)), two
counts of false imprisonment (counts 5, 6; § 236), and one count of
possession of a firearm by a felon (count 7; former § 12021,
subd. (a)(1)). As to all counts, it
was alleged that the crimes were serious or violent felonies committed while
Longorio was on parole.
(§§ 1203.085, subd. (b), 1192.7, subd. (c).) As to counts two through six, it was alleged
Longorio personally used a gun (§§ 12022.5, subd. (a), 1203.06,
subd. (a)(1)), and an additional gun enhancement was alleged as to counts
three and four (§ 12022.53, subd. (b)).
In superior court case No. SC069697A, an amended information
charged Longorio with attempted escape (count 1; § 4532, subd. (b)(1)). In both cases, it was also alleged that
Longorio had three prior strikes (§ 1170.12, subd. (c)(2)), as well
as prior serious felony convictions and prior prison term commitments
(§§ 667, subd. (a), 667.5, subd. (b)). The cases were consolidated for trial.
On
January 12, 2011, six days before a scheduled trial date, Longorio moved
to represent himself at trial pursuant to Faretta
v. California (1975) 422 U.S. 806 (Faretta). The court postponed trial to February 22
and held hearings on the Faretta motion
on January 19 and February 16.
We set forth the Faretta colloquy
between the court and Longorio in detail.
At the
January 19, 2011 hearing, the court (Hon. John L. Grandsaert) began by
discussing the maximum penalty Longorio faced:
“THE COURT:
. . . [Is the prosecution] prepared to state what Mr. Longorio is
facing?
“[PROSECUTOR]: We are proceeding in a three-strikes
fashion. It’s a—assuming that the two
robberies—there’s a home invasion robbery, a separate residential burglary and
arming allegation, and then, escape charge.
So, 25 to life per victim in the robbery, plus a separate residential
burglary, plus escape, plus the arming allegation under 12022.53, that alone is
113 years, four months, to life.
“THE
COURT: Thank you. [¶] . . . is
there anything [defense counsel] wish[es] to add with reference to what the
defendant is facing?
“[DEFENSE
COUNSEL]: I think those sentencing
calculations might be high, but I have not at this point sat down and formally
done the research. I know there’s a
limitation where dealing with three strikes that might lower the minimum
term. Life is certainly there. It is a three-strikes case. So, it’s going to be some lengthy term. It might be less than 50 to life, but it’s
going to be over 25 years to life, clearly.
“THE
COURT: Okay. Mr. Longorio, are you aware of that?
“THE DEFENDANT: Yes, I am.
“THE
COURT: And are you aware of what
[defense counsel] is talking about when he talks about the fact that the
numbers could be significantly less than what the DA says?
“THE
DEFENDANT: I am.
“THE
COURT: And you’re familiar with the laws
that he’s talking about? [¶] . . . [¶]
“THE
DEFENDANT: Relatively.
“THE
COURT: I’m sorry?
“THE
DEFENDANT: Yes.
“THE
COURT: It’s an understatement to say
you’re facing serious charges.
“THE
DEFENDANT: Oh, I am.â€
Later in the colloquy, the court noted that Longorio had not
written the maximum penalty on the written waiver form and asked him, “What do
you believe is the maximum sentence for the offense?†Longorio responded “What the DA said, about
113 to life.â€
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The court
also discussed the charges and enhancement allegations that Longorio was
facing:
“THE
COURT: Let’s talk about these
charges. Do you know what you’re charged
with?
“THE
DEFENDANT: Yes.
“THE
COURT: What are you charged with?
“THE
DEFENDANT: Home invasion robbery, a
burglary, another burglary, and escape, and use of a firearm for the home
invasion.
“THE
COURT: There are some other charges
here. Penal Code Section 236. Do you know what that is?
“THE
DEFENDANT: No. Not right off the bat.
“THE
COURT: Okay. And how about the special allegations under
1203.085(b)? Do you know what that is?
“THE
DEFENDANT: Yes. The gun.
“THE
COURT: And the 667(a) priors, do you
know what those are?
“THE
DEFENDANT: Those are priors—prior
burglaries or prior convictions.
“THE COURT: Okay.
Do you understand the differences between a 12022.5 and a 12022.53 and a
1203.085? I’m not asking you to explain
it? I’m asking you if you know the
difference.
“THE
DEFENDANT: I know the difference between
a 1202.5.
“THE
COURT: 1202.5?
“THE
DEFENDANT: Yeah. 1202.5.
“THE
COURT: It’s a 12022.5. You know the difference between that and
what?
“THE
DEFENDANT: And the second one,
1202.5(a).
“THE
COURT: It’s a .53. These are technical provisions, there’s no
question about that. [¶] But they have different issues and different
elements. Do you know what the elements
are for the charges against you? Do you
know what the DA has to prove?
“THE
DEFENDANT: Yes.
“THE
COURT: That’s what I mean by
elements. What is it that the DA has to
prove with regard to a 236, for instance?
“THE
DEFENDANT: He has to prove that I
committed the crime.
“THE
COURT: Sure. And when I ask you what are the elements,
it’s the elements that the District Attorney has to prove. Your lawyer . . . is very well aware
of what the elements are the DA has to prove.
How many charges do you have?
“THE
DEFENDANT: Five, six, maybe seven.
“THE
COURT: That would be in one of the
cases. How about in the other one?
“THE
DEFENDANT: One or two.
“THE
COURT: How many special allegations are
against you?
“THE
DEFENDANT: Two or three.
“THE
COURT: There’s a whole lot more than
that.
“THE
DEFENDANT: Well, I’m just—I’m just
saying because of the two robberies and the gun enhancement.
“THE
COURT: I understand. But on some of these charges, like for
instance, Count 7, a 12021, you’re familiar with what that is?
“THE
DEFENDANT: I don’t have—I left all that
at my cell.
“[DEFENSE
COUNSEL]: I have the charging
documents. Do you want me to provide
those to Mr. Longorio?
“THE
COURT: I do, but let me carry-on this
little bit of conversation first. The
12021(a)(1) is Count 7 against you, and it has the 1203.085, a 1203(e)(4), and
of course the strike allegations and the priors follow that last charge. [¶]
[Defense counsel] is aware of all of the elements of each of those—of that
offense and each of those special allegations.
When he’s in the middle of questioning a witness, he’s going to be
questioning them to see if he can get them to show the jury what it is
that—what element isn’t being met by the DA’s case. You can imagine how complicated that is. [¶]
Do you think he could do a better job of that than you?
“THE
DEFENDANT: I feel I can do it. I’ve been studying it. I’ve been going over police reports. I’ve been going over what the officers said
in preliminary.
“THE COURT: How successful have you seen, from your own
experience, that people representing themselves have been?
“THE
DEFENDANT: About 45-percent chance.
“THE
COURT: You think your chances are better
with [defense counsel] or by yourself?
“THE
DEFENDANT: By myself.
“THE
COURT: There’s a primary issue with
regard to these charges, with regard to the intent. [¶] Do you know whether
these crimes with which you’re charged have a general intent or a specific
intent?
“THE
DEFENDANT: Probably specific. And I did them.
“THE
COURT: Okay. I can’t give you the law school education at
this point, but it’s a lot more sophisticated than that. Not a question of whether you did it. It’s a question of intent. There’s a major difference between general
intent and specific intent. That’s a
difference that your attorney is very familiar with. [¶] I can see that it’s
not something that you’re familiar with at this time. [¶] Your trial is
February 22nd. It’s taken [defense
counsel] a career to understand and understand well the kind of intent that the
DA has to prove. And he’s going to be
juggling the various intent requirements and trying to show the holes in the DA
case with regard to intent during the time he’s questioning each witness. [¶]
If the right intent isn’t proven, then the charge isn’t proven. [¶] Do you
understand how complicated that is?
“THE
DEFENDANT: It’s complicated but doable.
“THE
COURT: You understand that without
knowing the answers to the questions that I’m asking, you’re going to be
helplessly lost in attempting to identify and prepare possible defenses to
these charges? And that’s not even
talking about objections to the evidence, objections to each question that’s
being asked by the DA. [¶] You’re aware of that?
“THE
DEFENDANT: I’m working on my objections
right now.
“THE
COURT: Who do you think is going to be
in a better position to make those objections, you or [defense counsel], by the
time trial comes around next month?
“THE
DEFENDANT: I’ll be ready.â€
Finally,
the court advised Longorio throughout the colloquy about the dangers and
disadvantages of self-representation:
“THE
COURT: As you know, the attorneys in the
Private Defender’s Office are extremely well qualified. They’re good criminal defense attorneys. They’re noted around the country for having
an excellent program. And they are
highly qualified to conduct these kind of cases. [¶] Do you agree with that?
“THE
DEFENDANT: Yes.
“THE
COURT: Before I can allow you to
represent yourself, you’re going to have to convince me that you know what
you’re doing and that you’re capable of doing it. . . . [¶] Can you
read and write?
“THE
DEFENDANT: Yes, I can.
“THE
COURT: How much schooling have you had?
“THE DEFENDANT: I’ve graduated—I’ve got my GED.
“THE
COURT: Have you ever represented
yourself before? [¶] . . . [¶]
“THE
DEFENDANT: Not until right now.
“THE
COURT: And are you asking that the Court
allow you to represent yourself?
“THE
DEFENDANT: I am. [¶] . . . [¶]
“THE
COURT: Okay. There’s a [waiver of counsel] form. It’s not too long. It’s a page and a half. I’m going to ask my clerk to hand you such a
form. I’m going to pause here while you
read it. Then, I’m going to be talking
to you about it. So, it’s very important
that you understand every part of it.
So, read it carefully.
“THE
DEFENDANT: (Reading document.)
[¶] . . . [¶]
“THE
COURT: And any questions about it?
“THE
DEFENDANT: Yes, I do.
“THE
COURT: Go ahead.
[¶] . . . [¶]
“THE DEFENDANT: About the 6-A, the law provides for numerous
pretrial motions available to the defendant which are of a technical nature,
the advantage of which I could lose if allowed to represent myself. [¶] My
question is: I understand that I have—I
have numerous motions that I may need to file and I can file them. But why does it say I would not be allowed—I
would lose that right. Why? [¶] . . . [¶]
“THE COURT:
. . . This is assuming that these technical nature motions—I don’t
know whether any of them are applicable to you—that you wouldn’t be aware of
them because you didn’t go to law school.
That a very experienced attorney, such as [defense counsel], would be
aware of more motions than you’re aware of.
That’s what they’re talking about there.
Does that make sense?
“THE
DEFENDANT: Possible—yes.
“THE
COURT: Any other questions?
“THE
DEFENDANT: Yes. 6-F. I may waive constitutional, statutory and
common law rights unknowingly.
“THE
COURT: What that means is lawyers are
aware—defense lawyers are away [sic]
of times when you could say something or do something that would affect your
rights. They’re just dangerous traps, if
you will. And if you unknowingly step
into one of those traps, you could lose a right that you didn’t know you were
losing. That’s what they’re talking
about. It’s, again, a matter of law
school knowledge, a matter of criminal law experience, and it’s the fact that
you’re going up against an experienced criminal attorney in the prosecutor.
[¶] . . . [¶]
“THE
DEFENDANT: Okay.
[¶] . . . [¶]
“THE
COURT: Apart from the questions that you
asked me, you believe that you understand [the form]?
“THE
DEFENDANT: I do.â€
The court reviewed specific constitutional rights with
Longorio, including the right to counsel, to a speedy trial, to confrontation
and cross-examination, to testify and to refuse to testify, and to present
defense evidence. The court then
continued:
“THE
COURT: And you understand you’ll be up
against an experienced prosecuting attorney who will try your case, and that
neither he nor the Court will assist you or otherwise provide special treatment
to you?
“THE
DEFENDANT: I’m aware of that.
“THE
COURT: You understand you’ll have to
follow all the technical rules of substantive law, criminal procedures and
evidence, just as a lawyer must?
“THE
DEFENDANT: Yes.
“THE
COURT: You understand that you will not
receive any more library privileges than those available to any other person
representing himself? [¶] Do you understand that you will not receive any more
library privileges—[¶] . . . [¶] . . . —than
those made available to any other person representing himself?
“THE
DEFENDANT: Yes.
“THE
COURT: Do you understand you will not
receive any extra time to prepare your case for motions or for trial?
“THE DEFENDANT: I understand that.
“THE
COURT: You understand that a special
investigator will not be assigned to your case unless you can demonstrate to
the Court that the services of an investigator are necessary to the preparation
of your case? Do you understand that?
“THE
DEFENDANT: I do.
“THE
COURT: Do you understand that depending
on the stage of the proceedings, should you decide that you no longer want to
represent yourself, the Court may deny you the opportunity to change your mind
and have a lawyer appointed again? Do
you understand that?
“THE
DEFENDANT: I do.
“THE
COURT: The right to act as your own
lawyer is not a license to abuse the dignity of the Court. If the Court determines that you are doing
that by engaging in deliberate misbehavior that is causing disruption in the
trial proceedings, the Court will terminate your right to
self-representation. Do you understand
that?
“THE
DEFENDANT: I do.
“THE
COURT: Suppose that would happen. Do you understand how difficult it would be
for a lawyer to be appointed in the middle of your trial and be able to assist
you effectively?
“THE
DEFENDANT: Very.
“THE
COURT: Do you still want to represent
yourself?
“THE
DEFENDANT: I do.
[¶] . . . [¶]
“THE
COURT: The three phases of your case are
pretrial, trial, and then if there is a conviction, proceedings after
conviction. [¶] With regard to the proceedings before trial —that’s the stage
you’re in—there are . . . potential motions, only [defense counsel]
at this point knows which ones would be a good idea to bring—motions for
dismissal, motions for disqualification of a judge, severance of counts,
discovery. He’s already done a motion to
suppress, I see. [¶] Those are just some of those technical motions that the
form is talking about. He’s in a position
to know what motions to bring between now and the trial date. He knows how to make those motions and knows
when they have to be ready. [¶] You’re not familiar with those things, at least
as to some of those motions. [¶] So, you still want to represent yourself?
“THE
DEFENDANT: I do.
“THE
COURT: You know at the trial that you’re
going to have to ask proper questions on voir dire with regard to the
jury. You have to know when and how to
exercise challenges, both for cause and peremptory challenges. You have to know how many of each type of
challenge you’re entitled to. And the
Judge isn’t going to help you. [¶] Are you aware of that?
“THE
DEFENDANT: I am.
“THE
COURT: Do you understand that damaging
evidence, such as hearsay evidence, may be admitted against you during the
trial unless you know what you’re doing—
“THE
DEFENDANT: Yes.
“THE
COURT: —and you’ve made the proper
objections?
“THE
DEFENDANT: I do.
“THE
COURT: Do you know what the exceptions
are to the hearsay rule?
“THE DEFENDANT: I’m studying up on it right now.
“THE
COURT: You understand you’re going to
have to deal with problems like these priors, the admissibility of evidence of
uncharged crimes, the use of prior convictions to impeach witnesses, and that
if you don’t make timely objections, you don’t make the objections at the right
time, if you don’t make the proper objections, there are—there is evidence
that’s going to come into the case that would hurt your case? [¶] Do you
understand that?
“THE
DEFENDANT: I do.
“THE
COURT: You understand if you don’t
question a witness right, that objections will be sustained, and you may not
know why?
“THE
DEFENDANT: If I object, yeah.
“THE
COURT: I’m talking about if you ask a
question, the DA objects, and the Judge says sustained—
“THE
DEFENDANT: Then I’ll reform the
question.
“THE
COURT: Do you understand that you may
not be in a position, based on your legal knowledge, to reframe the question in
a way that’s going to be allowed by the Judge?
Then you have a situation where you want information out of the witness
but you won’t be able to get that information out. And the jury won’t hear about it, because
these are some of the technical rules.
This is why lawyers go to law school.
This is why lawyers gain their experience before taking on serious cases
like this. [¶] Do you understand that?
“THE
DEFENDANT: I do.
“THE
COURT: Do you understand how dangerous
that could be to your case?
“THE
DEFENDANT: I do.
“THE
COURT: And you still want to act as your
own lawyer?
“THE
DEFENDANT: Yes, Your Honor.
“THE
COURT: Let’s suppose just for a moment
that you are convicted. One of the
grounds for appealing a conviction is the kind of defense a defendant received. If a lawyer does a poor job of representing a
defendant that can be claimed to be— [¶] . . .
[¶] . . . ineffective assistance of counsel. And the case can be reversed on appeal. If you insist on representing yourself,
you’ll give up that right. [¶] Do you understand that?
“THE
DEFENDANT: I do.â€
After this
extensive colloquy, defense counsel
reminded the court that he had filed a motion to continue the trial to afford
him an opportunity to investigate Longorio’s mental health. In a declaration attached to the motion,
counsel had explained that Longorio “had given me no reason to believe he was
mentally ill, or had a history of any mental illness†and had expressed no
desire to plead not guilty by reason of insanity or to claim incompetence to
stand trial. Nevertheless, counsel had
learned that Longorio was placed on psychotropic medication while incarcerated
at Pelican Bay prison. Because the case
was a three strikes case with a potential sentence in excess of 100 years to life,
and in an abundance of caution, counsel wanted to investigate the mental health
issue further, specifically by obtaining Longorio’s medical records from the
prison system. At the January 19,
2011 hearing, it was further disclosed that Longorio’s mother was
schizophrenic. The prosecutor did not
oppose the motion. Although the court
commented that it had seen no evidence that Longorio was incompetent, it agreed
the additional information should be obtained.
The court continued the trial and denied the Faretta motion without prejudice.
On February
15, 2011, Longorio renewed his Faretta
motion and a hearing on the matter was held the following day. Defense counsel reported that he had obtained
and reviewed Longorio’s medical records and had a psychiatrist review the
records and interview Longorio. “There
are no mental health defenses that I can offer in this particular case. And I do feel Mr. Longorio to be competent as
his doctor told him.â€
Moving on
to the Faretta issue, the court
conducted the following additional colloquy:
“THE COURT:
. . . Mr. Longorio, have you thought about what we talked about last
time?
“THE
DEFENDANT: Yes, I have, your Honor.
“THE
COURT: And do any of those things that
we talked about cause you to be concerned about your chances of prevailing at
trial if you represent yourself?
“THE
DEFENDANT: No.
“THE
COURT: I gathered from what you said
. . . that you recognized that there was a—that defendants who
represent themselves have a—I think, didn’t you say a 40 or 45 percent chance?
“THE
DEFENDANT: 55.
“THE
COURT: 55. [¶] And what do you assess
the chances to be if you’re represented by counsel?
“THE
DEFENDANT: 45. 50.
“THE
COURT: So you believe that you have a
better opportunity to prevail at trial without counsel?
“THE
DEFENDANT: I do.
“THE COURT: Even after we talked about all the things
that you don’t know about the charges?
“THE
DEFENDANT: Yes, I do.
“THE
COURT: And there’s one more subject that
we should talk about. And that is based
on the fact that you have an escape that you’re charged with, a trial judge may
restrict your movements in the courtroom in a major way. Do you understand that?
“THE
DEFENDANT: I do.
“THE
COURT: If you’re represented by counsel,
counsel would not be restricted from . . . movement about the
courtroom. And I imagine you can see
that that would be an advantage in having an attorney because they’d be able to
move freely about the courtroom and you might not be able to. [¶] Do you agree
that that might be an advantage?
“THE
DEFENDANT: No.
“THE
COURT: Do you think it might be a
disadvantage to, for instance, represent yourself and make all your comments to
the jury from a seated position at counsel table instead of standing in front
of the jury and making a presentation?
“THE
DEFENDANT: It may. But if I’m standing in front of the jury
cuffed up, it’s going to be the same thing.
So either/or.
“THE
COURT: What I’m saying to you is some
trial judge might find—I’m not saying he will—but he might find you’re not
allowed to move about the courtroom. As
a matter of fact, he might find that you have to stay seated in your chair when
you do anything during the trial to represent yourself. That would not be true of [defense counsel]
if he were to represent you. That’s what
I’m saying. So in knowing that, does
that make you question your decision to represent yourself?
“THE
DEFENDANT: No, it does not.
[¶] . . . [¶]
“THE
COURT: Okay. [¶] So understanding that
your movements could be restricted, that you might have to address the jury
from a seated position at counsel table whereas the prosecution may instead be
able to move about the courtroom, do you still wish to represent yourself?
“THE
DEFENDANT: I do.â€
The court
specifically found Longorio was competent to represent himself, granted his
motion to represent himself, appointed his former attorney as standby counsel,
and granted a continuance of trial.
Longorio
represented himself throughout the trial.
The jury found Longorio guilty as charged and found the enhancement
allegations true. The trial court
imposed state prison for a total of 198 years to life.
II. Discussion
“A criminal
defendant has a right to represent himself at trial under the Sixth Amendment
to the United States Constitution. (
must grant a defendant’s request for self-representation if three conditions
are met. First, the defendant must be
mentally competent, and must make his request knowingly and intelligently,
having been apprised of the dangers of self-representation. (Faretta,
supra, at p. 835; People v.
Gallego (1990) 52 Cal.3d 115, 161; People
v. Bloom (1989) 48 Cal.3d 1194, 1224–1225.) Second, he must make his request unequivocally. (Faretta,
supra, at p. 835; People v.
Clark (1992) 3 Cal.4th 41, 98 (Clark).) Third, he must make his request within a
reasonable time before trial. (
128.)†(People v. Welch (1999) 20 Cal.4th 701, 729, parallel citations
omitted.)
Longorio
argues his waiver of representation was not knowing and intelligent because the
trial court failed to advise him of the maximum penalty he faced at trial or to
explain the nature of the charges and enhancement allegations he faced at
trial.
Whether
there has been a waiver is a question of fact, and the burden is on the defendant to demonstrate he did not
knowingly and intelligently waive his right to counsel. (People
v. Sullivan (2007) 151 Cal.App.4th 524, 547 (Sullivan).) On appeal, the
courts “review the entire record—including proceedings after the purported
invocation of the right of self-representation—and determine de novo whether
the defendant’s invocation was knowing and voluntary. [Citations.]
Even when the trial court has failed to conduct a full and complete
inquiry regarding a defendant’s assertion of the right of self-representation,
these courts examine the entire record to determine whether the invocation of
the right of self-representation and waiver of the right to counsel was knowing
and voluntary. [Citations.]†(Marshall, supra, 15 Cal.4th at
p. 24.)
We disagree
with Longorio’s view of the legal standard for a Faretta inquiry and our review of the record confirms that the
trial court’s colloquy here was constitutionally adequate.
A. Required Scope of a Faretta
A defendant
seeking to represent himself at trial “ ‘should be made aware of the
dangers and disadvantages of self-representation, so that the record will
establish that “he knows what he is doing and his choice is made with eyes
open.†[Citation].’ (Faretta,
supra, 422 U.S. at p. 835.)†(
1070 (Koontz), parallel citation
omitted.) Shortly after
of Appeal provided suggestions about the scope of the inquiry to be made by the
court when a defendant “chooses to go it alone.†(People
v. Lopez (1977) 71 Cal.App.3d 568, 571–574 (Lopez).) Noting that “the
trial judge must recognize that the first ground on appeal is probably going to
be that the defendant was allowed to represent himself without having
intelligently and voluntarily made that decision†(id. at p. 572), the court suggested that advisements should
(1) explain the dangers and disadvantages of self-representation,
(2) inquire into the defendant’s mental capacity, and (3) advise the
defendant that he cannot later claim ineffective assistance of counsel. (Id.
at pp. 572–574.) With respect to
the second factor, the Lopez court
wrote, “Perhaps some exploration into the nature of the proceedings, the
possible outcome, possible defenses and possible punishments might be in
order.†(Id. at p. 573.) The
Supreme Court has cited Lopez
favorably, but clarified that “[n]o particular form of words is required in
admonishing a defendant who seeks to waive counsel and elect
self-representation; the test is whether the record as a whole demonstrates
that the defendant understood the disadvantages of self-representation,
including the risks and complexities of the particular case. [Citation.]â€
(Koontz, at
p. 1070.) In Koontz, the Supreme Court rejected an argument that a trial court’s
Faretta colloquy was inadequate
because it did not include some specific advisements suggested by
(Koontz, at
pp. 1070–1073.) The court concluded
the allegedly missing advisements were implicit in other parts of the colloquy
and the colloquy as a whole was constitutionally adequate. (Id.
at pp. 1072–1073; see also People v.
Lawley (2002) 27 Cal.4th 102, 142 [as whole, colloquy was adequate in light
of Lopez].)
The United
States Court of Appeals for the Ninth Circuit has formulated a standard for
district courts to ensure the defendant understands “1) the nature of the
charges against him, 2) the possible penalties, and 3) the ‘dangers
and disadvantages of self-representation.’
[Citation.]†(
355 F.3d 1161, 1167 (Erskine).)
the Ninth Circuit reversed a criminal judgment on the ground that, although the
defendant was properly advised on the dangers and disadvantages of
self-representation, he was erroneously advised that the maximum prison
sentence he faced was one year; the actual maximum penalty was five years. (Id.
at pp. 1165, 1169–1171; see also United
States v. Forrester (9th Cir. 2008) 512 F.3d 500, 507 (Forrester) [reversing, despite proper advisement on dangers and
disadvantages of self-representation, because defendant not advised of nature
of charge against him and erroneously advised about penalty (told maximum
sentence was 10 years to life, whereas sentencing range was 0–20 years].) In Sullivan,
another division of this court cited the Ninth Circuit standard for
controlling law in California. (
p. 545.) But the
that “ ‘ “ ‘[t]he test of a valid waiver of counsel is not
whether specific warnings or advisements were given but whether the record as a
whole demonstrates that the defendant understood the disadvantages of
self-representation, including the risks and complexities of the particular
case.’ †[Citations.]’ [Citation.]â€
(Id. at p. 546.) And, the court affirmed on the ground that
the defendant had not provided a sufficient record to demonstrate that that his
waiver of his right to counsel was not
knowing and voluntary. (
California Supreme Court standards was immaterial to the court’s decision.
Citing
Longorio argues the trial court erred by failing to explain the charges and enhancement allegations he was facing during
the colloquy. Although the court
discussed the charges and enhancement allegations during the colloquy, Longorio
argues the court erred by merely demonstrating to Longorio that he did not
fully understand those charges and enhancements and not ensuring that Longorio
understood them. We disagree. Under United States and California Supreme
Court law, the trial court’s duty during the Faretta colloquy was to explain “the disadvantages of
self-representation, including the risks and complexities of the particular
case.†(Koontz, supra, 27 Cal.4th at p. 1070.) We agree that discussion of charges (and
enhancement allegations) made against the defendant, as well as of maximum
penalties he faces, may be a critical component of explaining the dangers and
disadvantages of self-representation in a
particular case. (See, e.g.,
311, 319 [colloquy inadequate in part because “[t]he court did not inquire
whether appellant understood the charges against him and the potential penal
consequences if he lost at trialâ€].)
However, we do not agree that, as Longorio suggests, the court is
required to provide the defendant with a sentencing matrix on multiple charges,
to precisely state the maximum penalty, or to provide a tutorial on the
elements of each charge or enhancement.
only whether a defendant actually understands “the significance and
consequences†of his decision. (
pp. 733–734.) The court’s duty
during the colloquy is to determine whether the defendant is operating under a
misapprehension about the charges or penalties and to alert him to the possible
complexity of the charges or sentencing issues so that, if he chooses to waive
his right to counsel, he does so “ ‘with eyes open.’ †(Faretta,
supra, 422 U.S. at p. 835.) “If
the trial court’s warnings communicate powerfully to the defendant the
‘disadvantages of proceeding pro se,’ that is all ‘Faretta
requires.’ [Citation.]†(Sullivan,
supra, 151 Cal.App.4th at p. 546.)
B. Adequacy of the Faretta
Colloquy in Longorio’s Case
As a
preliminary matter, we note that Longorio raises no issue on appeal as to his
mental competence to waive counsel. His
mental competence was thoroughly investigated and both his appointed counsel
and the court stated on the record they had no concerns in that regard.
The
was cautious and extensive. The court
made sure Longorio was not acting under a misapprehension of the seriousness of
the charges and enhancement allegations he was facing or the severity of
penalty that could be imposed. The court
explained constitutional rights Longorio was waiving or might inadvertently
waive through his untutored defense of the charges against him. The court extensively described the dangers
and disadvantages of self-representation both generally and in the particular
circumstances of Longorio’s case: the
superior skill and experience of the prosecutor; the potential, due to
Longorio’s ignorance of criminal law or procedure, for inadvertent forfeiture
of objections, overlooked motions for relief before, during and after trial,
and an inability to introduce admissible evidence due to ignorance of
procedural requirements; and possible restrictions on Longorio’s movement in
the courtroom. The court explained that
Longorio would not be able to change his mind and seek representation midway
through the trial, and explained that he would not be able to appeal a
conviction on the ground of denial of counsel or ineffective assistance of
counsel.
1.
During the
that the maximum sentence on three of the charges and one enhancement—the
two-victim robbery, the residential burglary, the escape, and the arming
allegation—alone was 113 years and
four months to life. Defense counsel
suggested that the maximum might be lower, but explained that he had not yet
researched the matter. Longorio told the
court he understood the maximum sentence was 113 to life. The ultimate sentence imposed, however, was
198 years to life.
Failure to
specifically advise Longorio that the maximum penalty he faced was 198 years to
life, rather than at least 113 years
to life, does not establish error. And
unlike the Ninth Circuit cases Longorio cites in support of his argument, the
trial court did not misadvise Longorio that he would only be subject to a
substantially lesser penalty. In
maximum penalty was one year, whereas it was in fact five years. (Erskine,
supra, 355 F.3d at pp. 1165, 1169–1171.) The five-fold difference in penalty was
clearly sufficient to render the waiver not knowing or voluntary and to prevent
the conclusion that the defendant acted with his eyes wide open when he chose
self-representation. In
maximum was 10 years to life, whereas the maximum term was 20 years. (Forrester,
supra, 512 F.3d p. 507.)
The erroneous information misled the defendant about the maximum as to
both the determinate and indeterminate parts of the sentence, which could have
led the defendant to mistakenly overestimate (possible life component of
sentence) or underestimate (10 versus 20 year maximum determinate sentence) the
risks he was facing at trial, again precluding a finding that the defendant
waived his right to counsel with his eyes wide open.
As
explained ante, the purpose of
advising the defendant of the penalty he faces is not to provide the defendant
with a precise sentencing maximum or range or to tutor the defendant in the
subtleties of applicable sentencing law.
Rather, the purpose is to adequately apprise the defendant of the
dangers and disadvantages of self-representation in the particular circumstances
of the case. Here, Longorio had an extensive
criminal and institutional history, and was a self-described
“three-striker.†He acknowledged that he
faced a potential sentence far in excess of his life expectancy. The record is quite clear that Longorio was
persistent, insistent and unequivocal in asserting his right to
self-representation despite clear and repeated warnings from the court that it
was highly inadvisable to do so. He
makes no showing on appeal that knowledge that the maximum penalty would be 198
years to life rather than 113 years to life would have materially affected his
decision to choose self-representation.
It is his burden to do so, and Longorio fails to demonstrate otherwise.
2.
Longorio’s
second complaint is that the court “failed to ensure that he understood the
nature of the charges.†He acknowledges
that the court reviewed the charges and the enhancement allegations with
Longorio, but complains that the court “did not do so to educate him, but to
impress upon him his ignorance.â€
Again, the purpose of the
defendant on the nature of the charges and allegations brought against him, but
to ensure that he understands the dangers and disadvantages of
self-representation in the particular circumstances of his case. The court effectively articulated the number
of charges and enhancements Longorio faced, disabusing Longorio of the notion
that the case was limited to “[h]ome invasion robbery, a burglary, another
burglary, and escape, and use of a firearm for the home invasion.†The court also alerted Longorio to the fact
that the multiple charges and enhancement allegations required different forms
of proof and thus were potentially subject to different defenses, and that holding
the prosecution to its burden of proof as to certain elements, such as specific
intent, required a high level of legal understanding. Forrester,
cited by Longorio in support of his argument, is distinguishable. There, the court faulted the
mention of the conspiracy charge in the hearing transcript, let alone any
indication that the court sought to ensure that Forrester understood the charge
and grasped that conspiracy is a particularly complex and confusing allegation
to defend against.†(
p. 507.) Here, the court ensured
that Longorio was aware of the multiple charges and enhancements that were
brought against him, and that he grasped that certain legal issues involved in
the myriad charges would be complex and confusing for a lay person to defend
against. The court was not required to
do more.
One may
well question whether a decision to elect self-representation is ever
“intelligent,†in the sense that it is invariably unwise. But, the record before us amply demonstrates
that Longorio was made well aware of the risks and dangers in representing
himself, and that he voluntarily elected to do so “ ‘with eyes
open.’ †(Faretta, supra, 422 U.S. at p. 835; People v. Stanley (2006) 39 Cal.4th 913, 932.) He therefore cannot now complain of the
consequences of that choice.
C. Correction to Abstract
of Judgment
Both
parties agree that the abstract of judgment erroneously states that
section 12022.53, subdivision (b) gun enhancements were imposed but
stayed as to counts 1, 2, 5, and 6 in case No. SC069278A. In fact, the section 12022.53,
subdivision (b) enhancement was alleged only as to counts 3 and 4 in case
No. SC069278A. The jury found true
section 12022.53, subdivision (a) enhancement as to counts 3
and 4, and found true section 12022.5, subdivision (a) enhancements as to
counts 2, 3, 4, 5, and 6 in that case.
The abstract also erroneously states that a section 12022.53,
subdivision (b) enhancement was imposed but stayed as to count 1 in case
No. SC069697A. Additionally, the
abstract of judgment does not reflect that the jury found true an enhancement
under section 1203.085, subdivision (b) for all counts in case No.
SC069278A. Therefore, we shall order the
superior court clerk to correct the abstract of judgment to conform with the
verdict of the jury.
The
judgment is affirmed. The superior court
clerk shall prepare an amended abstract of judgment in conformity with the
jury’s verdict and forward the amended abstract to the
_________________________
Bruiniers,
J.
We concur:
_________________________
Jones, P. J.
_________________________
Needham, J.
All statutory references are to the Penal Code unless otherwise indicated.
Just before trial commenced in July 2011, Longorio and the prosecutor
discussed a possible plea deal with the court.
During that discussion, the prosecutor said the maximum sentence on the
charged offenses and enhancements was “128 to life. Somewhere in that neighborhood.†Longorio said he understood that the maximum
sentence if one of his prior “strike†convictions were stricken would be
80 years. The prosecution offered a
42-year stipulated sentence, which Longorio rejected.
