P. v. Callendar

Filed 8/20/07 P. v. Callendar CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Francis J. Hourigan III, Judge. Affirmed.

Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.

Following a court trial, Vincent Anthony Callender (appellant) was convicted of forcible rape (Pen. Code, 261, subd. (a)(2)),[1]forcible sodomy ( 286, subd. (c)(2)), and forcible oral copulation ( 288a, subd. (c)(2)). The court also found that appellant engaged in the tying or binding of the victim as to each count ( 667.61, subd. (b)) and that he had previously served a prison term ( 667.5, subd. (b)). Appellant was sentenced to 16 years to life. He appeals, contending that he was denied his constitutional right to a fair trial because the court erroneously allowed him to represent himself. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case are not pertinent to the subject of this appeal. It will suffice to say the prosecution presented evidence that appellant went to the apartment of his ex-girlfriend A.S. on January 25, 2006. He raped her, forced her to orally copulate him, and tied her up. Her neighbor heard her screaming and called the paramedics. Appellant was sleeping in the apartment when they arrived. When he awoke and realized that the paramedics were not police officers, he jumped out a window and ran. He was arrested a short time later. Appellant admitted to Gardena Police Officer Russell Temple that he gagged and tied up A.S., but, at trial he denied sexually assaulting her.

Appellant was arraigned on February 23, 2006. Upon his request, and after a Faretta[2]advisement was given, the court permitted him to represent himself. On March 16, 2006, appellant requested that his pro. per. status be terminated and that counsel be appointed to represent him. The court granted the request and the Los Angeles County Public Defenders Office was assigned the case.

At a hearing on April 6, 2006, appellant refused to allow his counsel to waive time, and stated, I dont want anyone to represent me who is not going to make me happy, that dont believe in me. If she doesnt believe that she can do it, then shes not the person for me. [] . . . [] Shes fired because shes not representing me properly. The following colloquy then occurred: THE COURT: Who is going to represent you at the trial? [] [Appellant]: Im sorry, sir, but at the moment I know that I have the ability to. [] THE COURT: You have the ability to? [] [Appellant]: I have the ability. . . . [] THE COURT: . . . If the court appointed an attorney[, going to trial within 60 days] will not happen. So that leaves it up to you what you want to do. And I will indicate to you self-representation is almost always not wise. You may conduct the defense ultimately to your own disadvantage. Youll get no assistance from the court. So you have to abide by the same rules it took lawyers years to learn. You will be up against an experienced prosecutor, who knows how [to get] evidence in and keep evidence out. A fair fight it would not be a fair fight. [] . . . [] But you have the right, if you want, to represent yourself. [] [Appellant]: Within 60 days, I will do it. [] THE COURT: You want to represent yourself? [] [Appellant]: If I have to go, yes. [] THE COURT: You dont have to. [] [Appellant]: But I will. I will request that diligently, sir . . . because I believe in myself. . . . [] THE COURT: You have a right, if you wish. So Im going to reappoint yourself to represent yourself.

DISCUSSION

Counsel does not assert that appellant did not knowingly and voluntarily waive his right to counsel. Instead, counsel argues that appellants inability to examine witnesses, present his testimony in a coherent manner, and deliver a rational closing argument resulted in a denial of appellants right to a fair trial.

Counsel contends that the trial court was required to reassess its decision to allow appellant to represent himself in light of his performance at trial. Counsel claims the right to self-representation must yield to the right to a fair trial. We disagree. As long as a defendant is made aware of the pitfalls of proceeding without an attorney and knowingly and voluntarily accepts that risk, Faretta makes it clear that the courts may not force counsel on an unwilling defendant. Moreover, whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of effective assistance of counsel. (Faretta, supra, 422 U.S. at pp. 834-835, fn. 46.) Counsel argues that appellants trial was a travesty of justice that constituted per se reversible error. We have reviewed the trial transcript, and while appellants performance was far from stellar, we do not agree with counsels characterization of the proceedings. While we recognize that the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct (ibid.), we decline counsels invitation to equate less than adequate legal acumen with purposeful misconduct. The lesson of Faretta is that once a defendant takes control of his or her legal representation, he or she accepts the consequences of competing on a legal playing field tilted heavily in the opponents favor.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P. J. WILLHITE, J.

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[1] All further statutory references are to the Penal Code.

[2]Faretta v. California (1975) 422 U.S. 806.