Filed 12/18/17 P. v. Doss CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR


THE PEOPLE,
Plaintiff and Respondent,
v.
JIMMIE L. DOSS, JR.,
Defendant and Appellant.

A144344

(Contra Costa County
Super. Ct. No. 51214543)



I. INTRODUCTION
This case comes to us a second time on appeal following a decision by the trial court on remand in response to our opinion in People v. Doss (2014) 230 Cal.App.4th 46 (Doss I), which conditionally reversed an order revoking Doss’s self-representation under Faretta v. California (1975) 422 U.S. 806 (Faretta). The trial court, we said in Doss I, had applied an incorrect legal standard. (Doss I, at p. 55.) The correct standard, articulated in People v. Carson (2005) 35 Cal.4th 1, 10–11 (Carson), allows for revocation only if the defendant has engaged in “ ‘obstructive behavior [that] seriously threatens the core integrity of the trial.’ ” (Doss I, at p. 55, quoting Carson, at pp. 10–11.) On remand, the court again revoked Doss’s Faretta status, this time applying the Carson standard, and reinstated the prior judgment. On appeal, Doss claims the court still did not comply with the Carson standard. We disagree and will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Homicide Case
Doss was incarcerated in January 2010 for charges unrelated to the case now on appeal or to the first appeal, in Doss I. Some of those charges, which included homicide and kidnapping counts, were consolidated in June 2011 into one case. Doss was initially granted Faretta status in the homicide case, but in 2011 attorney Michael Markowitz was appointed to represent him. Markowitz moved to withdraw from the case in August 2011, and Doss was later briefly represented by attorney Laureen Bethards. Judge Haynes presided over some pretrial matters during that phase of the proceedings but recused himself on Doss’s motion in December 2011. Doss again appeared in propria persona in the homicide case in February 2012. At some point, attorney Christopher Martin was appointed to represent him and did so during the homicide trial. Judge Canepa presided at the jury phase of the homicide trial, which took place from May to July 2014. The jury found Doss guilty of several counts, including first degree murder.
B. The Assault and Battery Case and Doss I
In December 2011, while Doss was still waiting for the homicide trial to start, he hit another inmate on the hand with a broom handle. Doss was originally granted Faretta status to defend against the ensuing charges of assault and battery (Pen. Code, §§ 242, 243, 245) with infliction of great bodily injury (Pen. Code, § 12022.7), until Judge Laettner revoked his self-representation on May 12, 2012. Judge Maier presided over some pretrial matters in the assault and battery case but recused herself on Doss’s motion in April 2012. Anthony Ashe was appointed to represent Doss during that trial, at which Judge Landau presided in November 2012. The jury found Doss guilty of the assault charge and accompanying great bodily injury enhancement, and an included offense of simple battery (Pen. Code, §§ 242, 243). His first appeal from that conviction was the subject of the appeal in Doss I. (Doss I, supra, 230 Cal.App.4th at p. 49.)
The May 2012 revocation of Doss’s Faretta status was based on the standard set forth in Wilson v. Superior Court (1978) 21 Cal.3d 816, 827 (Wilson), which holds that a decision to restrict an inmate’s Faretta privileges “should be made only upon a showing of demonstrable necessity for institutional security.” In Doss I, we explained that the Wilson standard is inapposite here because it applies to restriction of in-jail in propria persona privileges, such as pretrial access to a phone and law library, rather than restriction of in propria persona status at trial. (Doss I, supra, 230 Cal.App.4th at pp. 55–56.) Carson sets forth the appropriate standard for determining whether Faretta status at trial should be revoked: if the defendant’s behavior “ ‘seriously threatens the core integrity of the trial.’ ” (Id. at p. 55.) The Doss I panel indicated that, on remand, the trial court could consider incidents that occurred both before and after Judge Laettner’s May 12, 2012 revocation ruling. (Id. at p. 58.)
C. The Proceedings on Remand from Doss I
On remand, Judge Laettner held a three-day evidentiary hearing in which Doss represented himself, with Anthony Ashe (who represented Doss during the assault and battery trial) serving as advisory counsel. The court received testimony and other evidence regarding incidents of Doss’s misconduct occurring both before and after May 12, 2012. Following the evidentiary hearing, the court issued a new order applying the Carson standard, revoking Doss’s right to represent himself in a new trial. As authorized by our prior opinion, the court then reinstated the judgment, and this appeal followed.
Judge Laettner based his order on several instances of pre- and post-ruling misconduct by Doss. Specifically, he found that Doss threatened two witnesses. In 2010, using his in propria persona mail privileges, he sent a threatening letter to a witness and codefendant (Jane Doe) in his homicide case. At the time, Jane Doe was a minor in custody at a juvenile detention center. There was also evidence Doss continued to have contact with Jane Doe even after the court issued a criminal restraining order against him. The second time Doss threatened a witness was in November 2012, when he told a sheriff’s deputy that he would kill him if he testified against Doss in the assault and battery trial.
Judge Laettner noted that besides using his in propria persona privileges to threaten Jane Doe, Doss also threatened his legal runner. Doss stated he was using the phone privileges to “handle business” from jail because he believed the police could not use the calls against him. Judge Laettner also cited several instances of Doss’s in-court misconduct. Among these were Doss’s refusal to submit to cross-examination after choosing to take the witness stand at his homicide trial; his threats of physical violence against his homicide trial attorneys Chris Martin and Michael Markowitz; his several outbursts in court during both trials; and his refusal to attend his own court proceedings on multiple occasions, including the final hearing in the proceedings on remand before Judge Laettner.
III. DISCUSSION
A. Standard of Review
The standard of review for an order revoking a defendant’s in propria persona status is abuse of discretion. (Carson, supra, 35 Cal.4th at p. 12.) On review, we accord “due deference to the trial court’s assessment of the defendant’s motives and sincerity as well as the nature and context of his misconduct and its impact on the integrity of the trial in determining whether termination of Faretta rights is necessary to maintain the fairness of the proceedings.” (Ibid.)
“ ‘Erroneous denial of a Faretta motion is reversible per se. [Citation.]’ [Citation.] The same standard applies to erroneous revocation of pro. per. status.” (People v. Butler (2009) 47 Cal.4th 814, 824–825 (Butler).) As this court observed in Doss I, “the denial of the right to self-representation ‘is not amenable to “harmless error” analysis’ because the right is one ‘that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant.’ ” (Doss I, supra, 230 Cal.App.4th at p. 55, quoting McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8.)
B. Faretta Rights
Under Faretta, supra, 422 U.S. at p. 835, a defendant in a criminal trial has a constitutional right to represent him- or herself in court when he or she voluntarily and intelligently elects to do so. “The tension between the right of self-representation and the interest in ensuring a fair trial was a matter of dispute in Faretta itself, and it persists to this day.” (Butler, supra, 47 Cal.4th at p. 824.) When a defendant timely moves for self-representation at trial, the court must permit the defendant to do so upon determining the defendant’s choice was made voluntarily and intelligently, regardless of how unwise the choice may appear or how lacking the defendant’s knowledge of the law may be. (Ibid., citing People v. Windham (1977) 19 Cal.3d 121, 128.) Nonetheless, the right to self-representation is not absolute, and the court may deny or terminate it under certain circumstances, including a defendant’s untimely or equivocal request, a defendant’s mental incompetence to waive counsel, or a showing that a defendant has engaged in serious and obstructionist misconduct. (Butler, at p. 825.)
C. Under Carson, Doss’s Misconduct Rises to the Level of Obstructive Behavior That Seriously Threatens the Core Integrity of the Trial.

In Carson, the California Supreme Court held a defendant may forfeit the right to self-representation due to in-court or out-of-court obstructive conduct that seriously threatens the core integrity of the trial. (Carson, supra, 35 Cal.4th at pp. 9–12.) There, the trial court revoked the defendant’s Faretta status after his investigator mistakenly gave him an unredacted copy of the murder book that included witnesses’ contact information and criminal history records. (Id. at p. 12 & fn. 3.) The trial court found the defendant’s receipt of this information, in light of prior misconduct including possible witness intimidation, justified revocation of his Faretta status. (Id. at p. 13.)
The California Supreme Court reversed, finding the record did not offer sufficient support for the trial court’s decision. (Carson, supra, 35 Cal.4th at p. 13.) In part because it was difficult to determine exactly how much improper discovery the defendant had accessed and what impact it would have on the trial, the case was remanded to the trial court for a hearing as to the reasons for and necessity of terminating the defendant’s right of self-representation. (Ibid.) Even so, the California Supreme Court recognized that witness intimidation is serious obstructionist misconduct, and “[w]hen a defendant exploits or manipulates his in propria persona status to engage in such acts, wherever they may occur, the trial court does not abuse its discretion in determining he has forfeited the right of continued self-representation.” (Id. at p. 9.)
When denying or revoking self-representation under Carson, the trial court should make a record that answers several questions. (See Carson, supra, 35 Cal.4th at pp. 11–12.) First, the court must point to specific evidence of the defendant’s conduct and explain how it threatened the core integrity of the trial. (Id. at p. 11.) If the court relies on antecedent conduct, it should indicate exactly what conduct and how it threatened the core integrity of the trial. (Ibid.) If any misconduct occurred while the defendant was represented by counsel, the court should address whether the misconduct was related to the defendant’s self-representation. (Id. at pp. 11–12.) The record must also show whether the court warned the defendant the misconduct might forfeit his right to in propria persona status. (Id. at p. 12.) Finally, the court must evaluate the availability and suitability of alternative sanctions. (Ibid.) While the record should answer each of these questions, “[i]n most cases, no one consideration will be dispositive; rather, the totality of the circumstances should inform the court’s exercise of its discretion.” (Ibid.)
Applying the Carson standard, the appellate court in People v. Kirvin (2014) 231 Cal.App.4th 1507, 1516–1517 (Kirvin) held the defendant’s repeated refusal to attend court and court-ordered meetings justified denial of his request to represent himself. Kirvin affirmed an order denying the defendant’s request for self-representation because the trial court “did not act beyond the ‘bounds of reason’ in concluding that Defendant’s repeated refusal to come to court or obey court orders to meet with others would seriously threaten the core integrity of the trial.” (Id. at p. 1516.)
As the Kirvin court reasoned, an in-custody defendant who refuses to appear places the court in the dilemma of either postponing all proceedings until the defendant does appear or proceeding to trial with no one present to represent the defendant’s interests. (Kirvin, supra, 231 Cal.App.4th at p. 1516.) Furthermore, if a defendant’s failure to sit at the appropriate place in the courtroom can be a basis for denying self-representation, then failure to appear at all must also be a basis for doing so. (Ibid.; see Carson, supra, 35 Cal.4th at p. 10–11, citing State v. Whalen (Ariz. 1997) 961 P.2d 1051, 1054–1056 [Faretta status revoked because defendant refused to cross the bar during court proceedings].) As in Kirvin, Doss’s repeated refusals to appear in court threatened to subvert the core integrity of the trial. (See Kirvin, supra, 231 Cal.App.4th at p. 1516.)
The concerns expressed in both Carson and Kirvin are relevant here. In this case, Judge Laettner based his revocation of Doss’s Faretta status partly on a finding that Doss threatened two witnesses. In 2010, Doss used his mail privileges to send a threatening letter to the witness/codefendant Jane Doe in his homicide trial. In 2012, Doss verbally threatened to kill a sheriff’s deputy if he testified against Doss in the assault and battery trial. Both threats are clear instances of witness intimidation which fit squarely within the Carson standard of obstructionist conduct that threatens the core integrity of the trial. (See Carson, supra, 35 Cal.4th at p. 9.) Moreover, Doss abused his self-representation privileges to threaten Jane Doe, conduct that gives the trial court discretion to terminate his Faretta status.
In addition, Judge Laettner based his ruling in part on several instances when Doss refused to appear in court, including his failure to appear for closing arguments in the proceedings on remand from our decision in Doss I. On appeal, Doss argues his failure to appear for closing arguments in those proceedings does not indicate he would refuse to come to court if he were representing himself in a new trial. In fact, however, Doss was representing himself in the remand proceedings; Judge Laettner permitted Doss to do so, with Ashe as advisory counsel. While it may very well be that, as Doss argues, his refusal to attend the hearing on a motion is not as obstructive to the integrity of the court’s proceedings as refusal to appear at trial, it was properly taken into account under Kirvin with a view to whether Doss has shown a pattern of obstructive behavior that might well repeat itself during retrial. That was properly considered along with everything else.
Finally, there are Judge Laettner’s findings of various kinds of in-court misconduct in the homicide trial. Doss contends his misconduct in the homicide trial is irrelevant to his behavior in the assault and battery trial, from which this appeal is taken. He cites no case law to support the theory that only behavior in the assault and battery trial is relevant. As noted above, in Doss I this court indicated that on remand the trial court could consider findings from the homicide trial, such as his intimidation of witness Jane Doe and his dilatory behavior in those proceedings. (Doss I, supra, 230 Cal.App.4th at pp. 56–57.) Furthermore, this court expressly stated the trial court could consider conduct occurring both before and after Judge Laettner’s initial order of May 12, 2012. (Id. at p. 58.) The homicide trial was in progress through July 2014. Because Doss’s repeated recalcitrance and obstructionism there was relevant to how he might conduct himself in future proceedings, under Carson, it was properly taken into account as a factor justifying revocation of Faretta status.
D. Doss Was Sufficiently Warned His Misconduct Might Forfeit His Right to Self-representation.

In People v. Becerra (2016) 63 Cal.4th 511, 519–520 (Becerra), the California Supreme Court reversed an order revoking the defendant’s Faretta status in part because the trial court did not warn the defendant his alleged misconduct might forfeit his right to self-representation. The trial court revoked the defendant’s self-representation based on his alleged dilatory behavior in requesting discovery continuances. (Id. at pp. 514–517.) On the record there, the California Supreme Court found no evidence of any warning to the defendant that his discovery requests were improper or might result in forfeiture of his Faretta status. (Id. at pp. 519–520.) In fact, the prosecutor acknowledged some items of discovery remained outstanding. (Id. at p. 519.) After granting several discovery continuances, the trial court abruptly and without warning terminated the defendant’s self-representation at the beginning of the preliminary hearing. (Id. at p. 516.) As a result, the Supreme Court concluded that the trial court revoked the defendant’s Faretta rights without evidence of obstructive behavior and without any warning of the consequences for misconduct. (Id. at p. 520.)
In contrast, the Kirvin court held the defendant’s refusals to appear in court or attend court-ordered meetings so clearly threatened the core integrity of the trial that there was no need to issue warnings or to consider alternative sanctions before denying the defendant’s in propria persona status. (Kirvin, supra, 231 Cal.App.4th at pp. 1516–1517.) The defendant’s refusals to appear in court were willful and repeated, and he was on notice of the consequences of his behavior from a previous order denying him Faretta status based on misconduct. (Ibid.) Addressing whether the trial court should have issued a more specific warning, the Court of Appeal reasoned “there are no magic words that must always be said, particularly when they would do no more than state the obvious.” (Id. at p. 1516.) Becerra, which deals with a record devoid of evidence of obstructive conduct or warnings, does not undercut Kirvin’s reasoning that some conduct is so clearly obstructive it does not require an explicit warning.
The record here supports a finding of obstructive behavior and shows Doss receiving ample warnings about his misconduct and the judge found that further warnings would not be effective. In December 2010, after reviewing the threatening letter Doss sent to the homicide witness Jane Doe, Judge Maier issued a criminal protective order, but even that did not stop Doss’s threatening conduct. Doss communicated with Jane Doe by sending her text messages and photos in February 2014, causing her to become fearful as the homicide trial approached. In addition, Doss threatened in November 2012 to kill the sheriff’s deputy witness in his assault and battery trial, well after he was warned not to threaten Doe.
Doss was also warned his outbursts in court could result in his removal from the courtroom. During the assault and battery trial in November 2012, Doss, while represented by his appointed attorney Ashe, interrupted proceedings after being admonished not to “mak[e] speeches on the record.” In the same trial, less than two weeks later, Doss spoke out repeatedly during the prosecutor’s closing argument despite Judge Landau’s admonishments; finally, the judge halted the proceedings and excused the jury. Out of the jury’s presence, Judge Landau warned Doss that further outbursts would result in Doss’s removal from the courtroom and an instruction to the jury to disregard his comments. After the jury returned to the courtroom, closing arguments continued without interruption. When, two days later, the jury issued its verdict, Doss refused to be transported to court.
Judge Laettner’s order documents several other incidents of Doss’s outbursts throughout his homicide trial. During jury selection in June 2014, Doss was held in contempt of court for his outbursts in front of the potential jurors. Three weeks later, he testified in his own defense at trial, but refused to answer questions on cross examination. While in court, Doss passed a threatening note to his homicide trial attorney Martin. Martin showed the note to Judge Canepa, who then granted Martin’s request that Doss’s left hand be shackled.
In Doss I, this court cautioned that mere expressions of frustration at being denied in propria persona status cannot justify a renewed denial of self-representation. (Doss I, supra, 230 Cal.App.4th at p. 58, fn. 14.) In this appeal, Doss now argues his threats to his appointed attorneys may be attributable to such frustration. Obviously, however, threats of physical harm go beyond mere expressions of frustration, and in his ruling Judge Laettner saw the threats made here in that light. We cannot disagree. There is abundant evidence that, like the defendant in Kirvin, Doss’s refusals to come to court (or to comply with the court’s other orders) were willful and repeated and often involved conduct so clearly undermining the integrity of the trial as to render an explicit warning unnecessary.
E. Alternative Sanctions Would Not Be Effective.
In Doss I, this court held that before revoking Faretta status, the trial court must “consider ‘the availability and suitability of alternative sanctions,’ ” and whether they would effectively address the defendant’s out-of-court misconduct. (Doss I, supra, 230 Cal.App.4th at p. 57, quoting Carson, supra, 35 Cal.4th at p. 10.) The record in Doss I gave no indication that the trial court considered restriction of Doss’s in propria persona privileges as an alternative to revoking his Faretta status in full, even though most of his out-of-court misconduct was related to those privileges. (Doss I, at p. 57.) Pertinent here is consideration of “ ‘the appropriate disciplinary sanction . . . with a view to that which is least burdensome on the exercise of the privileges and yet still permits meaningful sanction.’ ” (Ibid., quoting Wilson, supra, 21 Cal.3d at p. 825, fn. 7.) When deciding whether to restrict certain Faretta privileges or to revoke Faretta status in full, the trial court should choose the least restrictive sanction that will effectively address the defendant’s misconduct. (Doss I, at p. 57.)
On remand from our decision in Doss I, Judge Laettner found sanctions short of revocation of Faretta status would not be effective. Doss’s out-of-court misconduct was not exclusively related to abuse of his in propria persona privileges; he threatened the sheriff’s deputy witness in jail, without use of phone or mail privileges. The trial court found restricting those privileges would not deter, and in fact had not deterred, Doss from continuing to threaten witnesses. Furthermore, Doss’s outbursts in court, as well as his refusals to appear, could not be addressed by restricting his in propria persona privileges. Ultimately, the trial court found Doss did not possess the self-discipline to control himself in court or out of court. It was well within its discretion in so finding.
IV. DISPOSITION
Affirmed.



_________________________
Streeter, J.


We concur:


_________________________
Reardon, Acting P.J.



_________________________
Rivera, J.