P. v. Papenhausen
Filed 3/19/07 P. v. Papenhausen CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Plumas)
----
THE PEOPLE, Plaintiff and Respondent, v. SCOTT EVERETT PAPENHAUSEN, Defendant and Appellant. | C052403 (Super. Ct. No. 0532632) |
Defendant Scott Everett Papenhausen pled guilty to possessing methamphetamine. (Health & Saf. Code, 11377, subd. (a).) The court suspended the sentence and placed defendant on three years probation under Penal Code section 1210.1 (Proposition 36). Thereafter, the district attorney and probation department filed five petitions for revocation of probation, which defendant denied. Before the probation revocation hearing, the court denied defendants motion to proceed in propria persona. Thereafter, the court sustained the petitions, denied probation, and sentenced defendant to the middle term of two years in prison. Defendant appeals, arguing the court erred in denying his Faretta motion.[1] We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Although defendant performed well for the first two months of his Proposition 36 probation, he started violating various conditions of his probation. The series of petitions for revocation of probation include the following allegations:
1/10/06 Defendant missed two drug treatment sessions,
failed to perform community service, and failed
to pay $575 in fees and fines.
1/25/06 Defendant failed to appear for drug testing.
2/10/06 Defendant tested positive for methamphetamine and
marijuana on 1/26/06.
2/16/06 Defendant tested positive for methamphetamine and
marijuana on 2/7/06 and 2/15/06.
2/21/06 Defendant violated Penal Code section 134,
preparing a false document. The
petition noted that a search of defendants
residence on 1/31/06 had revealed a device used
to sabotage a urine test, along with a jar of
urine in a paper bag which defendant admitted
was not his.
2/27/06 Defendant violated Vehicle Code section 23152,
subdivision (a) and Health and Safety Code
section 11550 on 2/16/06.
Defendant made Marsden[2]and Faretta motions for the first time at the probation violation hearing on March 16, 2006. Defendant completed a petition to proceed in propria persona and the court questioned him about his responses in the petition. Law enforcement officers tested defendant for drugs after the court expressed concern that defendant was under the influence. The court continued the matter after defendant was arrested for violation of Health and Safety Code section 11550. Thereafter, the probation department filed a new petition to revoke probation which included the following allegations:
3/20/06 Defendant was under the influence of an
illegal substance on 3/16/06, and failed to
register as a narcotics offender.
At a hearing on March 20, 2006, the court urged defendant, [I]f theres the risk of State prison hanging over your head, I cant recommend strongly enough that you be represented by an attorney. Defendant told the court to cancel the Faretta. However, defense counsel had a conflict of interest, having witnessed defendant under the influence at defendants previous appearance. At a hearing the following day, defendant objected to the attorneys the court suggested as replacements and asserted he wanted to retain his own attorney. The court did not want to leave defendant unrepresented at that juncture, and appointed counsel that all agreed was conflict free. It set the next hearing for March 30, 2006, and told defendant he could figure out what he wanted to do: [Y]ou can say, Judge, I want to represent myself, Judge, I want to have [newly appointed counsel] continue on, or, I want to hire new counsel. . . .
The court heard all the petitions at a single hearing on March 30, 2006. Before examination of witnesses, defendant again raised his Marsden and Faretta motions. After asking defendant a few questions, the court determined that it was more the Faretta issue that [he was] raising, representing [himself]. The court denied the Marsden motion.
As to the Faretta motion, the court questioned defendant further about his understanding of the charges against him. Defendant responded, Theyre fraudulent. Defendant continued, [T]heyre trying to extort money out of me by some means of laws that dont apply to a natural given person. . . . In terms of training in the law, defendant responded that he had represented himself in the past and had been studying for the last four years. He stated, Ive done misdemeanors, traffic and felony cases on my own. When asked how he planned to defendant against the current charges, defendant stated, I plan to send this case to a federal court. The court also directed defendant to complete the written petition to proceed in propria persona. At each place where defendant signed or initialed the form, he inserted the words, All Rights Reserved w/o Prejudice. UCC 1-207.[3]
The court denied defendants Faretta motion, stating:
[I] have received the signed petition and contained information. After reviewing the petition, I am, at this time, going to deny the motion to proceed in pro per. Two basic reasons; the first and the primary is that the way that the form has been completed, I cant find that there has been a clear and unequivocal waiver of right to counsel. [] And secondly, I am concerned with respect to if [defendant] is truly understanding the nature of the charges. And although it will be somewhat technical, hes not even able to distinguish whether or not these are general or specific intent issues or crimes that are being charged.
Defendant responded, I put on there it was a specific intent crime, thats the way it should be. The court continued, In any event, primarily for the reason that I dont find that there is a clear and unequivocal waiver of right to counsel which is, in my opinion, necessary . . . in order to proceed in pro per.
DISCUSSION
Defendant argues that his right to self-representation trumps the courts concern about the way he completed the Faretta form. He notes the court failed to question defendant about the petition and contends, [t]he courts pronouncement was vague and arbitrary . . . . We conclude there was no error.
A criminal defendant has the right to represent himself at trial. (Faretta, supra, 422 U.S. at pp. 835-836 [45 L.Ed.2d at pp. 581-582]; People v. Marshall (1997) 15 Cal.4th 1, 20 (Marshall).) In order to invoke the right of self-representation, a defendant must knowingly and voluntarily make a timely and unequivocal request for self-representation after being informed of the dangers. (Faretta, supra, 422 U.S. at pp. 835-836 [45 L.Ed.2d at pp. 581-582]; People v. Valdez (2004) 32 Cal.4th 73, 98-99 (Valdez).) [T]he Faretta right is forfeited unless the defendant articulately and unmistakably demands to proceed in propria persona. (Valdez, supra, at p. 99.) Citing several federal cases, the California Supreme Court noted in Marshall that, [s]ome courts have held that vacillation between requests for counsel and for self-representation amounts to equivocation or to waiver or forfeiture of the right of self-representation. (Marshall, supra, 15 Cal.4th at p. 22.)
The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant's conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendants conduct or words reflecting ambivalence about self-representation may support the courts decision to deny the defendants 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. (Marshall, supra, 15 Cal.4th at p. 23.)
On appeal, we review the entire record de novo to determine whether the defendants request for self-representation was knowing and voluntary. (Marshall, supra, 15 Cal.4th at p. 24.) It is unclear whether the issue of equivocal waiver of the right to counsel presents a question of fact or question of law. (Ibid.) However, we conclude the courts ruling on that issue was correct under either the substantial evidence or de novo standard.
The record reveals that defendant shifted back and forth between requests to represent himself and obtain new counsel. It appears the Marsden and Faretta motions came after defendant expressed frustration or conflict with appointed counsel. Defendant also signed the petition to proceed in propria persona without prejudice and with All Rights Reserved. These words followed the written advisement of rights defendant would give up by representing himself. It is reasonable to infer that by stating All Rights Reserved, defendant was referring to the rights set forth in the form. Thus, defendants earlier shifts between requesting self-representation, appointment of new counsel, and the opportunity to retain his own counsel, together with defendants responses to the form, amply support the conclusion defendant failed to make an unequivocal request to represent himself. (Faretta, supra, 422 U.S. at pp. 835-836 [45 L.Ed.2d at pp. 581-582]; Valdez, supra, 32 Cal.4th at pp. 98-99.)
Citing People v. Silfa (2001) 88 Cal.App.4th 1311, defendant argues that the Faretta form is not designed as a test that a defendant seeking self-representation must pass. In that case, the court denied the defendants Faretta motion, based on responses on the written form which showed a lack of understanding of the law and the consequences of his waiver, although the court was satisfied that [he was] mentally competent and that [he was] fully informed of the right to counsel . . . . (People v. Silfa, supra, at p. 1321.) The appellate court reversed, holding that the record need only show that defendant was mentally competent and fully informed of his right to counsel. (Id. at p. 1322.) The case before us raises the separate question whether defendants request for self-representation was unequivocal. (Faretta, supra, 422 U.S. at pp. 835-836 [45 L.Ed.2d at pp. 581-582]; Valdez, supra, 32 Cal.4th at pp. 98-99.) We may consider both of defendants verbal and written responses in making that determination.
DISPOSITION
The judgment is affirmed.
CANTIL-SAKAUYE , J.
We concur:
DAVIS, Acting P.J.
HULL, J.
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[1]Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta).
[2]People v. Marsden (1970) 2 Cal.3d 118.
[3]Former Commercial Code section 1207, subdivision (a) reads: A party who, with explicit reservation of rights, performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as without prejudice, under protest or the like are sufficient.
