Filed 10/17/13 P. v. Thomas CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
DEONTRAY DESHON THOMAS,
Defendant and
Appellant.
F063867
(Super.
Ct. No. BF135794A)
APPEAL
from a judgment of the Superior Court
of
Donn
Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Kari L. Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Following a
plea to a violation of Penal Code
name="_ftnref1" title="">[1] section 273.5, subdivision (a) and the
imposition of a four-year sentence, defendant Deontray Deshon Thomas appeals
his conviction. He argues the trial
court abused its discretion when it granted his motion made under
806 (Faretta) because it failed to
consider whether he lacked the mental capacity to represent himself at
trial. Defendant also contends that
failure resulted in an invalid waiver, thus, denying him his
BRIEF PROCEDURAL SUMMARY
In an
information filed April 14, 2011,
it was alleged defendant committed the following violations: count 1—assault with a deadly weapon
(§ 245, subd. (b)); count 2—willful infliction of corporal injury upon a
cohabitant (§ 273.5, subd. (a)); count 3—criminal threat (§ 422);
count 4—unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a));
count 5—unlawful possession of a firearm by a felon (former § 12021, subd.
(a)(1)); and count 6—active participation in a
subd. (a)). A gang enhancement was also
alleged (§ 186.22, subd. (b)(1)) as to counts 1, 2, 3, and 5. A firearm enhancement was alleged
(§ 12022.5, subd. (a)) as to counts 1, 2, 3, and 4. Additionally, it was alleged defendant had a prior
strike (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)) and a prior
serious felony conviction for attempted
first degree burglary (§ 667, subd. (a)). Finally, it was also alleged defendant had
served two prior prison terms.
(§ 667.5, subd. (b).)
On
April 22, 2011, defendant pled not guilty to all counts and denied all
allegations.
Subsequently,
the trial court granted defendant’s motion to set aside the section 186.22,
subdivision (b)(1) enhancement as to counts 1, 2, 3, and 5.
Thereafter,
a series of Marsden (
motions made or filed by defendant were heard and denied.
Jury trial
commenced August 18, 2011, with motions in limine argued and considered
over two days. On the second day of
trial, defendant made yet another Marsden
motion; it was denied. Defendant’s
subsequent Faretta motion was
granted.
On
August 23, 2011, the trial court granted defendant’s request for a 30-day
continuance, but denied his request for cocounsel. Later that same morning, defendant entered a
conditional plea: that he serve no more
than four years in prison in exchange for pleading no contest to a violation of
section 273.5, subdivision (a).
After
denying defendant’s motions to withdraw his plea, the trial court eventually
sentenced defendant to four years in state
prison.
BRIEF FACTUAL SUMMARY
On
February 27, 2011, Toya Tarkington reported she had been assaulted by
defendant. More particularly, she
indicated her boyfriend punched her in the head, face, chest and back. At one point, he produced a handgun, pointed
it at Tarkington’s head, and told her he was going to kill her. The assault continued briefly before
defendant took Tarkington’s keys and left in her car. Although Tarkington declined medical
assistance, law enforcement personnel noted bruising to her face and shoulder.
DISCUSSION
The Faretta Motion
Defendant
contends the trial court erred in granting his Faretta motion because it employed an incorrect standard in
assessing his ability to conduct himself during trial. He argues the trial court’s reference to
976 during the hearing meant it was unaware of the rules of
and People v. Johnson (2012) 53
Cal.4th 519 applicable to Faretta
motions. The People assert the trial
court exercised its sound discretion in allowing defendant to represent himself
and, thus, no error occurred.
The Relevant Proceedings Below
On the
morning of August 22, 2011, the trial court noted defendant’s appearance
and, particularly, the fact he was not dressed out for trial. When defense counsel was asked about the
issue, he indicated defendant refused to speak with him, but that the bailiff
had advised him defendant was refusing to dress out for trial. The following colloquy then occurred:
“[The Court:] [S]ir, I know you did have clothes available
at Lerdo. Was there a mix-up or a
problem in terms of getting dressed out this morning or what is the reason that
you’re not dressed out this morning, sir?
“The Defendant: Because I felt like, you know, I no longer
can proceed with [defense counsel] on a caseload with me, and I’m not going to
sit here and act like me and [defense counsel] get along and we really don’t.
“It’s
always been a break in communication and lack of communication and trust, and
I’m not—I’m not going to proceed with [defense counsel] on my caseload. If I got to go pro per, I go pro per. Just ain’t no trust there.
“The Court: For the record, without getting into the
details of it, because it is a closed hearing and is sealed and [the
prosecutor] is present with us at the present time, there was a Marsden motion
brought and heard on Friday, I believe it was, first thing in the afternoon
shortly after lunch, if I’m not mistaken.
And, obviously, I will not go into the details of that at this point in
time.
“As I
understand it, what you’re telling me is that, because you’re not happy with
your current representation, that’s why you have chosen not to dress out. Is that correct, sir?
“The Defendant: Yes, your Honor.
“The Court: I’m not sure I understand the connection
between the two. Can you maybe explain
that to me, because I’m not quite following why one would have anything to do
with the other.
“The Defendant: I mean [defense counsel]—he disrespectful to
my mom.
“The Court: I know how you feel about [defense counsel],
and I don’t want you to be in a position of having to get into that too much in
front of the Deputy DA. [¶] Why is
not dressing out connected to [defense counsel]’s representation, whatever you
may feel?
“The Defendant: I don’t trust [defense counsel]
whatsoever. I feel like I can’t proceed
on this case.
“The Court: There is one comment that, for purposes of
the record, I need to follow-up on at this point in time.
“[Y]ou
said something about you’re not going to proceed with [defense counsel] as your
attorney at this point and made a comment about going pro per. [¶] Are you—not inviting anything you’re
not asking me to you do, [sic]
because—
“The Defendant: Whatever.
“The Court: Wait a minute. One has a constitutional right to do so. It is generally—it is, frankly, almost always
unwise for someone to represent themselves, but are you asking the Court to
discharge your attorney and proceed representing yourself—
“The Defendant: That’s what—
“The Court: —at this point?
“The Defendant: If that’s what I got to do to get him off my
case, that’s what I want to do.
“The Court: I only want you to do that if that’s what you
want to do as far as your case and if that’s what you think is in your best
interest.
“The Defendant: Be in my best interest. Maybe I feel I can win a case or maybe I feel
I got a better chance. I feel like he
working with the DA anyways.
“The Court: Before proceeding with that request, … you
understand that this matter is in trial now?
[¶] We have a jury panel which is reserved and which we’re going to
bring over to begin jury selection on the case later on this morning. So if you do discharge your counsel or seek
to do that and represent yourself on the matter, then you would be expected,
and need to be prepared, to proceed on the matter immediately, because it’s
prejudicial to the People to go forward or to basically have this stalled at
the last moment when they have done everything they can in good faith to become
prepared to proceed.
“You
have counsel who is prepared to proceed.
And we’ve already spent basically—though we have not yet selected a jury,
we’ve spent the better part of two whole days already conducting motions in
limine on this case. Do you understand
that? [¶] I need you to answer out
loud.
“The Defendant: Yes, your Honor.
“The Court: I want to make sure just that the answer is clear
for the record. I can see you nodding
the head one way or the other, but it’s hard for the court reporter to take
down.
“Mr.
[Prosecutor], I haven’t asked the People to provide any input on anything
because, up to this point. Obviously
dealing with the issue of representation, to the extent that it presents a
conflict or Marsden-type issue, that is between counsel and the defendant, and
no disrespect but it isn’t the People’s business.
“And,
in addition, with regards to [defendant] being dressed out or not being dressed
out, that’s entirely a matter of his choice.
Though I think it wise for him to be dressed in civilian clothing, he’s
not obligated to do that if he doesn’t wish to do so.
“However,
with regards to the issue of self-representation, it does appear to me there is
a request being made for that at this point in time.
“Your
comments, if any, with respect to that at this point?
“[Prosecutor]: I would object to timeliness.
“The Court: All right.
“[Prosecutor]: And I would object to any continuance.
“The Court: So you understand … that the People are going
to be—if you proceed with that request, the People are going to be objecting to
the motion, number one, on the grounds that it’s untimely, that is being made
too late in the proceedings, and in connection with that they’re going to be
objecting to any continuance of the trial because they are ready, prepared to
proceed and have their witnesses available and so forth. Do you understand that?
“The Defendant: Yes, your Honor.
“The Court: Okay.
At this point we’re going to go off the record for just a couple of
minutes. I am going to—while we’re off
the record we’re going to do two things.
“Number
one, we have a written advisal and waiver form regarding self-representation or
so-called Faretta motion. We are going
to get a copy of that for you … and give you an opportunity to read over that,
review that. [¶] And then when we
go back on the record we’ll proceed with your motion. You can state the reasons for it.
“I also
want to take the time to go over that form and make sure you’re fully advised
with regards to any potential pitfalls or dangers to your case, of which there
are some being involved in representing yourself. I want to make sure before you proceed with
the motion and I hear it that you’re fully advised. Okay?
“So
we’ll do that during the recess and give you an opportunity to review that.â€
When the proceedings resumed following recess, the court
reviewed the “Faretta Waiver†form with defendant. It made specific inquiries based upon
defendant’s selections or responses on the form:
“The Court: Okay.
Turning to the second page, the advisal in number seven
at the top of the page states, quote: Do
you understand that if you are in custody you will receive no more library
privileges than those available to other persons representing themselves?
“You
will receive no extra time for preparation, and you will have not have a staff
of investigators at your disposal.
[¶] … [¶]
“You
circled the answer no to that and placed the initials DT.
“What I
want to make sure is that you understand what’s stated in in [
same library privileges as all other individuals who are representing
themselves and will not receive any additional or extra time for preparation
nor will you have a staff of investigators at your disposal.
“Do you
understand those things?
“The Defendant: Yes, your Honor.
“The Court: Okay.
Why did you circle no in response?
“The Defendant: Because I’m up in D pod, and like before
officers, you know, I be really like having a rough time and I ask for the law
forms and requests to go to the law library, they be slow dragging. So like, you know, I—basically—the officers—the
officers time—and it’s like when we ask for law forms, we can request to the
law library. I guess they be forgetting
sometimes.
“Basically
they be like slowing us down to get the forms.
We request those at the law library.
“So if
I be behind on going to the law library to study and read and stuff is
basically because I be on they time.
“The Court: If you have any problems with the speed of
the access, bring that to the Court’s—initially bring it to the attention of
the officers in that pod and let them know that you’re representing yourself in
an effort to speed that up. If that does
not suffice, bring that to the Court’s attention, and I’ll address the
matter. Okay?
“The Defendant: All right.
“The Court: However, you do need to understand that while
the Court will see that you get the same access as far as library privileges,
time for preparation and so forth as all other individuals representing
themselves, you’re not going to receive anything extra above and beyond what
anybody else in that same situation gets.
“Do you
understand that?
“The Defendant: Yes, sir.
I understand, your Honor.
“The Court: Next, I wanted to ask you with respect to
question eight, because that is not filled in.
That question eight would normally list the various charges in this
particular case.â€
The court then reviewed with defendant each count alleged,
this appeal:
“The Court: Now, … in the form you indicate in answer to
question number ten that your formal education includes high school
education. Is that correct, sir?
“The Defendant: Yes, your Honor.
“The Court: Okay.
Did you—where did you attend high school, sir?
“The Defendant: At West High School.
“The Court: Did you graduate from West High School?
“The Defendant: No, your Honor.
“The Court: How far did you go?
“The Defendant: Eleventh grade.
“The Court: You completed the eleventh grade?
“The Defendant: Yes, your Honor.
“The Court: So essentially, from a credit standpoint,
you’re basically one year short of high school graduation; is that correct?
“The Defendant: Yes, your Honor.
“The Court: You indicated in the form that English is
your primary language. Is that correct?
“The Defendant: Yes, your Honor.
“The Court: All right.
And, sir, in answer to question number 12 I need to ask you a question
with respect to that so I understand your answer.
“You
state in answer to that—it states, quote, the question, have you been treated
for any emotional or mental illnesses?
In answer to that you circled and stated and initialed that, and
explaining that in detail you state I was on SSI for being slow as a kid. Is that correct?
“The Defendant: Yes, your Honor.
“The Court: Can you explain to me what that means to you
in a little bit more detail?
“The Defendant: I mean base everything—explain it right
there.
“The Court: Do you know if you were found to be
developmentally disabled?
“I know
they use various terms for things sometimes, and that’s why I ask.
“The Defendant: Yeah.
“The Court: Okay.
You said that you received SSI for that.
“Did
you at any point in time, either while you were growing up or since you’ve been
an adult, receive any kind of treatment—or not sure the treatment is exactly
the right word—but assistance for that or any special education facilities?
“The Defendant: Yeah.
“The Court: Or assistance while you were in school?
“The Defendant: I had—I was in special ed.
“The Court: Can you tell me—that was while you were in
school. Can you tell me a little more
about that?
“The Defendant: I was—I kind of had like reading problems,
comprehending, catching on. That was
basically it. I never had no treatment
or medication.
“The Court: So it’s basically kind of a—sounds like, correct
me if I’m wrong, some sort of a disability or difficulty with reading and
comprehending written information. Is
that correct?
“The Defendant: Yes, your Honor.
“The Court: Now, in this particular case, obviously, as
in most cases, a lot of what we’re doing in court proceedings take place as far
as speaking orally and everything.
“Have
you had any difficulty understanding what we’ve discussed in court during the
course of the pretrial motions over the last couple of days as it’s been spoken
in court?
“The Defendant: A little bit.
“The Court: Okay.
“The Defendant: Just a little bit.
“The Court: Does that apply to just what’s been going on
generally or does that happen when we—because sometimes in court proceedings
lawyers and the judge will use legal terminology or kind of lawyer shorthand
for things. We’ll refer to something as,
for example, a Marsden motion or a motion to bifurcate, things like that, using
legal terminology or shorthand, and we use it because we know what it refers
to.
“Has
that been the situation where you’re having difficulty what’s being said in
court or has it been a little bit broader from that [sic]?
“The Defendant: Yes.
“The Court: Using the kind of terminology or things like
that?
“The Defendant: Yes.
“The Court: If at any point in time during the
proceedings either [the prosecutor] or I use legal terminology that you do not
understand, stop me and let us know, and I will—although the Court, obviously,
cannot conduct your defense for you or assist you with the conduct of the
defense—just as I would with a witness, it is important that all parties
understand what is being said during the proceedings. If we at times slip into legal shorthand or
terminology that you don’t follow or understand, please politely tell me that,
and we’ll stop, and I’ll make clear what we’re talking about. Fair enough?
“The Defendant: Yes, your Honor.
“The Court: Other than that have you had any difficulty
understanding what’s been said in court?
“The Defendant: No, your Honor.
“The Court: I do want to focus a little bit on the
reading issue for a moment, because you did indicate that during school, what
you characterized as being slow, was to some extent a difficulty with
comprehending written material and reading.
Is that correct?
“The Defendant: Yes, your Honor.
“The Court: You may not know the answer to this, sir, but
if you do—do you know what your—when you left or finished school what your
reading level was assessed at?
“Were
you at grade level for eleventh grade or above that, below that?
“The Defendant: Below that.
“The Court: Okay.
Do you know how much below?
[¶] Again, you may not know.
“The Defendant: I don’t remember my test. I couldn’t remember what it was.
“The Court: So little bit below eleventh grade level, but
you’re not sure exactly how much?
“I need
you to answer out loud.
“The Defendant: Yes, your Honor.
“The Court: I could see the nod of the head. It’s hard for the court reporter.
“[S]ir,
with respect to this proceeding now, a lot of the—obviously, necessarily,
because of much of what we do in the law is based on words. We, obviously, discuss things in court, but
there also a lot of the information is contained in written documents such as
police reports, transcripts of previous proceedings or recorded interviews,
written motions and things of that nature.
[¶] … [¶] … With respect to any documents that you may have
read, have you had any difficulty understanding those?
“The Defendant: No.
Have no difficulty.
“The Court: With regards to the reading issue when you
were in school, was that a question of you could—comprehension of a question,
you could understand things so long as you had sufficient time but you perhaps
read slower than perhaps other people or did you have difficulty understanding
what was in writing even if you had enough time to read through it?
“The Defendant: I had like difficult [sic].
“The Court: So you had some difficulty even reading the
materials even if you had essentially unlimited time to read them?
“The Defendant: Yes, your Honor.
“The Court: … I want you to answer this for me based
solely on whether or not, on the basis of your question of your ability to
represent yourself, do you—strike that.
“Do
you, sir, believe that you are able to read sufficiently well to be able to
read and understand what is in court documents and any police reports and other
documents you need to read in this case?
“The Defendant: Yes, your Honor.
“The Court: Okay.
Now, in answering question 13, it asks:
Have you had any difficulties reading and understanding this form? You wrote yes but circled no. In reading the form, have you understood the
form?
“The Defendant: Yes, your Honor.
“The Court: Okay.
All of the advisals and the questions in the form, do they make sense to
you?
“The Defendant: Yeah, they do.
“The Court: Okay. And do you understand the form itself?
“The Defendant: Yes, your Honor.â€
In making
its ruling, the trial court stated that defendant made a knowing and
intelligent waiver of his constitutional
rights and, specifically, that while defendant indicated he has some
“difficulty in digesting reading materials, he has been able to read and
comprehend and understand the form in this particular case …. I will characterize the form as, frankly,
being written at a level that at least requires a high school education to be
able to fully comprehend it.â€
Thereafter, defense counsel was relieved from further representation of
defendant and was directed to provide defendant with all materials.
Analysis
The Law at the Time of Trial
In
Amendment to the United States Constitution gives criminal defendants the right
to represent themselves. Before
California had been that a criminal defendant had no constitutional or
statutory right to self-representation except, in noncapital cases, the trial
court had discretion to grant a defendant’s request for self-representation. (People
v. Sharp (1972) 7 Cal.3d 448, 459, 461, 463-464.)
“In the
wake of Faretta’s strong
constitutional statement, California courts tended to view the federal
self-representation right as absolute, assuming a valid waiver of counsel.†(People
v. Taylor (2009) 47 Cal.4th 850, 872.)
Thus, a trial court had to grant a defendant’s request for
self-representation if the defendant voluntarily and intelligently elected to
do so, even if the defendant, though competent to stand trial, was not
competent to serve as his or her own attorney.
(Id. at pp. 872-873.)
In
the United States Supreme Court appeared to confirm that a separate competence
requirement for self-representation did not exist under
the defendant sought and was allowed to waive assistance of counsel and pleaded
guilty to murder charges in state court.
(Id. at pp. 391-393.) During habeas corpus proceedings, the federal
appeals court held that even though the defendant was competent to stand trial,
he was not competent to waive counsel and plead guilty. (Id.
at pp. 393-394.) The Supreme Court
reversed, rejecting the argument that federal law required a higher standard of
competence for waiving counsel or pleading guilty than is required to stand
trial. (Id. at p. 402.) California
courts, including the California Supreme Court, generally interpreted
and the required degree of competency to waive the
v. Taylor, supra, 47 Cal.4th at
pp. 874-876.)
In 2008,
the United States Supreme Court decided Indiana
v. Edwards, supra, 554 U.S.
164. In that case, the Indiana state
trial court had denied the defendant’s request for self-representation and
found that, while the defendant was competent to stand trial, he was not
competent to represent himself at trial.
(Id. at p. 169.) An Indiana appellate court ordered a new
trial, and the Indiana Supreme Court affirmed the appellate court on the ground
Faretta and Godinez required the trial court to permit the defendant to
represent himself. (Indiana v. Edwards, supra,
at p. 169.) The United States Supreme
Court reversed, holding:
“[T]he Constitution permits judges to take realistic
account of the particular defendant’s mental capacities by asking whether a
defendant who seeks to conduct his own defense at trial is mentally competent
to do so. That is to say, the
Constitution permits States to insist upon representation by counsel for those
competent enough to stand trial under Dusky
[v. United States (1960) 362 U.S. 402] but who still suffer from severe
mental illness to the point where they are not competent to conduct trial
proceedings by themselves.†(
The court called those defendants who are competent to stand
trial but not to represent themselves “gray-area defendants.†(Id.
at pp. 172-173.)
process requires a higher standard of mental competence for self-representation
than is required to stand trial with counsel.
Rather, “[t]he Edwards court
held only that states may, without
running afoul of Faretta, impose a
higher standard ….†(
In Taylor, the California
Supreme Court upheld the trial court’s decision to grant the defendant’s
request for self-representation. (
did not mandate the application of “‘a dual standard of competency for mentally
ill defendants,’†that case “does not support a claim of federal constitutional
error in a case like the present one, in which defendant’s request to represent
himself was granted.†(
The
defendant’s argument the trial court should have exercised its discretion,
recognized in Edwards, to apply a
higher standard than competence to stand trial.
(People v. Taylor,
time of defendant’s trial, state law provided the trial court with no test of
mental competence to apply other than the Dusky
standard of competence to stand trial [citation], under which defendant had
already been found competent.†(
Such was
the state of the law in this case when defendant requested
self-representation. Here, as in
grant the request for self-representation did not support a claim of
state law did not provide a standard of competence for self-representation different
from the standard required to stand trial.
As defendant does not deny he was competent to stand trial, he likewise
met the competency standard to represent himself at trial.
The Law Posttrial
In 2012,
after defendant pled guilty and shortly after he filed his notice of appeal,
the California Supreme Court decided People
v. Johnson, supra, 53 Cal.4th
519. In that case, the trial court
revoked the defendant’s self-representation.
(Id. at p. 525.) The Supreme Court had to decide “whether
California courts may accept Edwards’s
invitation and deny self-representation to gray-area defendants.†(Id.
at p. 527.) That court concluded that
California trial courts have discretion to deny self-representation to
gray-area defendants. The court
reasoned:
“Indeed, to refuse to recognize such discretion would be
inconsistent with California’s own law.
In People v. Floyd [(1970)] 1
Cal.3d 694, we upheld the denial of a capital defendant’s request for
self-representation citing, among other factors, his youth, his low level of
education, and his ignorance of the law.
[Citation.] Certainly, a
defendant who could be denied self-representation under Edwards, supra, 554 U.S.
164, could also have been denied self-representation under People v. Sharp, supra, 7
Cal.3d 448, and People v. Floyd. Denying self-representation when
violate the Sixth Amendment right of self-representation. Because California law provides
self-representation, such denial also does not violate a state right. Consistent with long-established California
law, we hold that trial courts may deny self-representation in those cases
where Edwards permits such
denial.†(People v. Johnson, supra,
at p. 528.)
The Johnson court
considered several standards by which to measure competence and concluded: “[P]ending further guidance from the high
court, we believe the standard that trial courts considering exercising their
discretion to deny self-representation should apply is simply whether the
defendant suffers from a severe
where he or she cannot carry out the basic tasks needed to present the defense
without the help of counsel.†(
Here,
defendant contends he met that standard, i.e., he suffered mental illness to
the point he could not carry out the basic tasks to defend himself without
counsel. Johnson was decided after defendant was to be tried, and after he
entered a guilty plea. Therefore, its
holding does not apply retroactively.
Changes in the law—either through legislation or court opinion—that
govern the conduct of trials apply prospectively only. (People
v. Johnson, supra, 53 Cal.4th at
p. 531.) “‘[A] law governing the conduct
of trials is being applied “prospectively†when it is applied to a trial
occurring after the law’s effective date, regardless of when the underlying
crime was committed ….’†(
after the crime took place is retroactive only if it changes the legal
consequences of a defendant’s past conduct.
(Tapia v. Superior Court,
defendant’s past conduct. He pled no
contest to a violation of willful infliction of corporal injury to a
cohabitant; the legal consequences of that conduct were not affected.
Moreover,
even under the Johnson standard for
competence, the trial court did not err by granting defendant’s request for
self-representation. “As with other determinations regarding
self-representation, we must defer largely to the trial court’s discretion.†(
regarding a defendant’s competence must be upheld if supported by substantial
evidence.†(Ibid.)
Here,
substantial evidence supported the trial court’s decision permitting defendant
to represent himself. The trial court
had observed defendant during two full days of pretrial motions and also had
the chance to observe and assess defendant during the Marsden motion heard August 19, 2011. The trial court very thoroughly and
meticulously reviewed the waiver of counsel form with defendant. On the form, defendant indicated he had
received assistance as a child for being “slow,†but after an extensive
inquiry, the trial court concluded that, despite defendant’s mild reading and
comprehension deficits, he was capable of representing himself at trial. The trial court did not abuse its discretion
in so finding. Contrary to defendant’s
assertion, the trial court was not required to obtain an expert’s opinion
regarding defendant’s ability to represent himself at trial. This record does not indicate defendant
“‘suffer[s] from severe mental illness to the point where’†he cannot “‘carry
out the basic tasks needed to present [a] defense without the help of
counsel.’†(People v. Johnson, supra,
53 Cal.4th at p. 530.) The trial court
took a realistic account of defendant’s mild—not severe—reading difficulty and
determined defendant was capable of representing himself despite the mild
deficit. We perceive no error.
In
explaining its decision, the trial court stated, in relevant part, as follows:
“The Court: At this point in time the Court has no
further inquiry in making a determination as to whether or not the defendant is
capable of representing himself.
“While
the Court may inquire as I have to determine if the defendant has sufficient—I
don’t mean it to sound derogatorily, because it isn’t meant to be that way or
critical—the Court needs to make a determination the defendant has sufficient
intelligence and mental capacity to represent themselves, the Court does not
and cannot inquire as to the technical knowledge of the law or ability to
litigate a case.
“The
relevant inquiry from the Court’s perspective pursuant to the Faretta versus
California decision at 422 US 806 page 835, and People versus Nauton,
N-a-u-t-o-n, at 29 Cal.App.4th 976, is does the defendant have the mental
capacity to make a knowing and intelligent waiver of his right to be
represented by counsel in this case.â€
Defendant
asserts the trial court’s reference to the Nauton
decision is evidence the trial court did not understand its discretion. However, the trial court stated the correct
general standard for determining whether a defendant may represent
himself. It noted a defendant must
knowingly and voluntarily elect self-representation. Although the court did not reference the
authority that followed Faretta
pertaining to consideration of a defendant’s request where that request was
accompanied by the presence of or a presumption of mental illness, it did
consider defendant’s purported reading and comprehension deficits. Those deficits factored into its
determination of whether defendant would be able to represent himself at trial
and whether he was knowingly and intelligently giving up his right to be
represented by counsel at trial. On
appeal, we presume the court was aware of the applicable standards and applied
them to the facts in this case. (
529, 644, overruled on another ground in Price
v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [reviewing court
presumes trial court knew and applied correct statutory and case law];
899, 913 [in absence of contrary evidence, reviewing court presumes trial court
properly followed established law]; People
v. Woods (1993) 12 Cal.App.4th 1139, 1152 [reviewing court presumes trial
court knew and properly applied the law; appellant’s burden to rebut
presumption by affirmative showing]; People
v. Nance (1991) 1 Cal.App.4th 1453, 1456 [reviewing court presumes trial
court knew and applied the correct statutory and case law in exercise of its
discretion]; People v. Mack (1986)
178 Cal.App.3d 1026, 1032; see also Evid. Code, § 664.) The trial court’s reference to
California Supreme Court in People v.
Taylor, supra, 47 Cal.4th at
pages 875-881—does not affirmatively establish the court was unaware of its
discretion pursuant to Edwards.
A review of
this record strongly suggests defendant was “playing ‘the Faretta game’†and was able to delay the trial “by juggling his
interspersed with Marsden
motions.†(People v. Williams (1990) 220 Cal.App.3d 1165, 1170.) As the court noted at a hearing on
defendant’s motion to withdraw his plea:
“The Court: I’m not buying it …. [¶] Right now the blunt fact of the
matter is that it’s pretty clear to me you didn’t want [defense counsel] to
represent you.
“Multiple
Marsden motions have been denied.
Frankly, at this point in time, if one looks at the whole record of this
case, it appears to me that the reason you made a Faretta motion and are now
seeking to try to withdraw your plea was basically as an end run to get around
multiple previous denials of that Marsden motion. You clearly understood what we were
discussing in court on the previous occasions when you were here representing
yourself and you did during the proceedings last week and during the earlier
proceedings now. [¶] I’m flat out
finding at this point in time that this is an attempt to deceive the Court.â€
In sum, the
trial court did not err in granting defendant’s Faretta motion. Defendant
knowingly and voluntarily waived his constitutional right to the assistance of
counsel. Further, the trial court
properly considered defendant’s mild reading and comprehension deficits before
determining he was capable of representing himself at trial.
The Validity of the Waiver
Defendant
asserts that because the trial court did not “conduct[] an adequate inquiry†as
to his mental capacity, placing him in a “position where he immediately
realized that he was incapable of proceeding on his own†and he “suddenly
reverses to a conviction by plea,†his Sixth Amendment rights to the assistance
of counsel and the presentation of a defense have been violated. He contends a proper inquiry would have led to
expert reports “pointing precisely to the types of functional impairments the
We have
already determined the trial court did not err in granting defendant’s
second argument rests is invalid. The
argument lacks merit and is largely a restatement of the earlier argument.
We do not
agree defendant’s unsuccessful request for advisory counsel
grant his Faretta motion results in
“a legitimate inference that his election to resume plea negotiations was the
result of his recognition that he was incapable of representing himself.†Rather, on this record, the legitimate inference
is that defendant was simply out of alternatives. He succeeded in getting his defense counsel
removed as his attorney, and his request to represent himself was properly
granted. Notably too, defendant was
granted a 30-day continuance, despite the fact the trial had already commenced
and a jury panel had been assembled. He
had but two choices: proceed to trial or
accept a plea. Defendant elected the
latter.
Moreover,
it is pure speculation for defendant to assert that “expert reports would
likely have been generated pointing precisely to the types of functional
impairments the Edwards court
cited ….â€
“‘… A
defendant seeking to represent himself “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.]â€
(Faretta, supra, 422 U.S. at p. 835.)
“No particular form of words is required in admonishing a defendant who
seeks to waive counsel and elect self-representation.†(People
v. Koontz (2002) 27 Cal.4th 1041, 1070.)
Rather, “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.â€
(Ibid.; accord,
140; People v. Marshall (1997) 15
Cal.4th 1, 24.)’ (People v. Blair (2005) 36 Cal.4th 686, 708.) Thus, ‘[a]s long as the record as a whole
shows that the defendant understood the dangers of self-representation, no
particular form of warning is required.’
(People v. Pinholster (1992) 1
Cal.4th 865, 928-929; accord, U.S. v.
Lopez–Osuna (9th Cir. 2001) 242 F.3d 1191, 1199 [‘the focus should be on
what the defendant understood, rather than on what the court said or understood’].)
“On
appeal, we independently examine the entire record to determine whether the
defendant knowingly and intelligently waived the right to counsel. (People
v. Doolin (2009) 45 Cal.4th 390, 453.)â€
(People v. Burgener (2009) 46
Cal.4th 231, 241.)
After
ensuring that defendant understood he faced a potential of 41 years in prison
were he to be convicted of all counts, the following colloquy occurred
regarding defendant’s waiver:
“The Court: [I]n answer to that you stated that you wish
to represent yourself because, quote, because I been effectively by [defense
counsel] who never—I’m not sure what the word s-u-m-e-n-t—discover on my case
and did nothing in my defense.
[¶] I know that you have not been satisfied with [defense
counsel]’s representation.
“The Defendant: Yes, your Honor.
“The Court: Without going into the details as far as the
Marsden motion is concerned, is it because of your dissatisfaction with that
representation that you’re seeking to represent yourself?
“The Defendant: Yes, your Honor.
“The Court: Again, without going into detail, all you
need to do is tell me yes or no, is it your desire to conduct your defense
differently than [defense counsel] feels or has indicated he feels it is
appropriate to conduct that defense?
[¶] I don’t want you to go into detail, because [the prosecutor] is
present. That’s just a yes or no.
“The Defendant: Yes.
“The Court: Okay.
So there’s not necessarily a conflict of interest, but there is a
disagreement or conflict as far as strategy between [defense counsel] and
yourself. Is that correct?
“The Defendant: It’s both.
It’s all.
“The Court: So you feel that there is a conflict in
strategy, but also you feel just generally there is a conflict in terms of his
representation?
“The Defendant: Yes, your Honor.
“The Court: Fair enough.
Okay.
“Now, …
I’m going over a couple of these because, like I said, I want to make sure you
understand the consequences of representing yourself. [¶] You understand that, assuming that
you are capable of making a knowing and intelligent waiver of your right to a
lawyer, that you do have a constitutional right to represent yourself. Do you understand that?
“The Defendant: Yes, your Honor.
“The Court: I do want to make doubly sure, though, that
you understand you also do have the constitutional right, even if you cannot
afford one, to be represented by a lawyer.
Do you understand that?
“The Defendant: Yes, your Honor.
“The Court: Okay.
Although there are many—I won’t say many, but there are folks who
represent themselves in criminal proceedings when they are charged with a
crime. Sometimes those proceedings wind
up in a result they’re satisfied with.
Although many times, perhaps more often, they don’t.
“Generally
speaking it is virtually always unwise for someone, frankly even if they are a
lawyer, to represent themselves when they are charged with a crime. [¶] Do you understand that?
“The Defendant: Yes, your Honor.
“The Court: Part of the reason for that is that while
certainly, as in many cases, that person is unfamiliar with and untrained in
the law, even in the case of a lawyer it is very often unwise for the lawyer to
represent themselves, because being personally involved in a proceedings [
it difficult for one to objectively evaluate the evidence against them and what
would be in their best interests.
[¶] Do you understand that?
“The Defendant: Yes, your Honor.
“The Court: Does that make sense?
“The Defendant: Yes.
“The Court: Okay.
You understand that while I certainly will stop and clarify to make sure
that you understand any legal terminology that is used, and we’ll do our best
to conduct the proceedings in a manner where you follow along and understand
what’s going on in court and are able to articulate your case and your defense
to the jury, you understand you’re not entitled to special treatment or
privileges?
“When I
rule on questions that are asked or answers that may be giv[en], when I
instruct the jury to the law, I have to follow the law with respect to all of
those. I can’t, if you will, put a thumb
on the scale in your favor or give you anything [in] that regard. [¶] Do you understand that?
“The Defendant: Yes, your Honor.â€
In this
case, defendant was made aware of the dangers and disadvantages of
self-representation. The record as a
whole demonstrates defendant understood the disadvantages and associated
risks. One of those risks involved the
potential of a 41-year prison sentence.
We think it likely that after defendant realized his machinations had
all but come to an end, he opted to take the guaranteed four-year prison term.
In
conclusion, following our independent review, we have determined defendant
knowingly and intelligently waived his right to counsel. The waiver is valid and no error occurred.
DISPOSITION
The
judgment is affirmed.
__________________________
PEÑA, J.
WE CONCUR:
________________________________
CORNELL, Acting P.J.
________________________________
FRANSON, J.
name="_ftn1" title="">[1]All
further statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title="">[2]The
factual summary is taken from the probation officer’s report.
