PEOPLE v. GOODWILLIE
Filed
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
STATE OF
THE PEOPLE, Plaintiff and Respondent, v. MARKUS D. GOODWILLIE, Defendant and Appellant. | D046757 (Super. |
STORY CONTINUED FROM PART I………
b. The trial judge did not have the authority to reconsider the arraigning
judge's ruling appointing advisory counsel to assist Goodwillie
Although Goodwillie had no constitutional right to the assistance of advisory counsel, under the particular circumstances of this case, the trial judge erred in relieving advisory counsel previously appointed by the arraigning judge. However, Goodwillie has failed to establish that this error was prejudicial.
A trial court generally has the authority to correct its own prejudgment errors. (In re Alberto (2002) 102 Cal.App.4th 421, 426 (Alberto).) " 'In criminal cases, there are few limits on a court's power to reconsider interim rulings . . . .' [Citation.]" (Ibid.) However, the general rule does not apply when it is a different judge who is reconsidering the interim ruling. (Id. at p. 427.)
" For one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court. 'The
The Alberto court explained the reasoning behind this rule:
" Different policy considerations . . . are operative if the reconsideration is accomplished by a different judge. Accordingly, [in those situations] the general rule is just the opposite: the power of one judge to vacate an order made by another judge is limited. [Citation.] This principle is founded on the inherent difference between a judge and a court and is designed to ensure the orderly administration of justice. 'If the rule were otherwise, it would be only a matter of days until we would have a rule of man rather than a rule of law. To affirm the action taken in this case would lead directly to forum shopping, since if one judge should deny relief, [parties] would try another and another judge until finally they found one who would grant what they were seeking. Such a procedure would instantly breed lack of confidence in the integrity of the courts.' [Citation.]" (Id. at p. 427.)
The rule that one superior court judge may not reconsider the previous ruling of another superior court judge applies in a variety of settings, in both criminal and civil cases. (See, e.g., People v. Madrigal (1995) 37 Cal.App.4th 791, 795-797 [ruling of second judge imposing a prison sentence after probation violation hearing is unlawful when first judge had earlier reinstated probation]; Elsea v. Saberi (1992) 4 Cal.App.4th 625, 630-631 [second judge without power to vacate default judgment entered by first judge].)
There are a few exceptions to the general rule that one superior court judge may not vacate or otherwise nullify the order of another. Reversal of a judgment and remand for new trial permits the " renewal and reconsideration of pretrial motions and objections to the admission of evidence. [Citation.]" (People v. Mattson (1990) 50 Cal.3d 826, 849.) In addition, two narrow lines of cases " appear to authorize one trial judge to reconsider an issue already decided by a colleague: one, where the first judge is unavailable [to decide a motion for reconsideration] [citation], or two, where the first order was made through inadvertence, mistake, or fraud. [Citations.]" (Alberto, supra, 102 Cal.App.4th at p. 430.)[1]
Here, the trial judge reversed, sua sponte, the arraigning judge's order that advisory counsel be appointed to assist Goodwillie. The trial judge acknowledged that his decision to deny Goodwillie the assistance of advisory counsel was based on a " philosophical difference" between himself and " some of [his] colleagues." The situation in this case does not fall within any of the narrow exceptions to the general rule that limits reconsideration of one judge's order by a different judge. There was no reversal and remand, no motion for reconsideration, and no showing that the original ruling was the result of inadvertence, mistake, or fraud. Further, there is no statutory provision that specifically authorizes reconsideration of this issue. The trial judge's order relieving advisory counsel appears to be precisely the type of action the rule is meant to prevent in that the trial judge essentially reviewed and rescinded the arraigning judge's order. The arraigning judge exercised his discretion to appoint advisory counsel; the trial judge did not have the authority to nullify that order.
While the trial judge erred in reversing the arraigning judge's order, Goodwillie has not established that he suffered prejudice as a result of the trial judge's error. Although Goodwillie maintains that the trial judge's decision to relieve advisory counsel amounted to a deprivation of the assistance of counsel in violation of the Sixth Amendment such that reversal per se is required, for the reasons stated in part
We recognize that in People v. Bigelow, supra, 37 Cal.3d at pp. 744-746, the Supreme Court concluded that per se reversal would be required in a case in which the trial court's refusal to appoint advisory counsel was an abuse of discretion.[2] In Bigelow, supra, 37 Cal.3d at p. 744, the Supreme Court concluded that under the specific circumstances of that capital case, the trial court had abused its discretion by failing to recognize that it was within the court's discretion to appoint advisory counsel to assist the defendant. The Supreme Court concluded that no trial court could have reasonably denied Bigelow the assistance of advisory counsel, thus effectively holding that Bigelow had a right to the assistance of advisory counsel under the circumstances of that case.
The Supreme Court applied the per se reversal rule in Bigelow not because the defendant had an absolute right to advisory counsel, but rather, because it was impossible to determine " the effect of the absence of [advisory] counsel upon the presentation of the case." (Bigelow, supra, 37 Cal.3d at p. 745.) The Court explained:
" Some decisions justify a rule of automatic reversal by emphasizing the fundamental character of the right to counsel. [Citation.] That rationale is inapplicable to the present case, for Bigelow had no absolute right to advisory counsel [citation], but only to a considered exercise of judicial discretion. A second reason for a rule of per se reversal, however, applies fully in the present setting: the impossibility of assessing the effect of the absence of counsel upon the presentation of the case." (Id. at pp. 744-745.)
We conclude that the per se reversal rule articulated in Bigelow, supra, at p. 746, does not apply here. Unlike in Bigelow, if it had been the trial judge in this case who had considered in the first instance whether to appoint advisory counsel to assist Goodwillie, there is no doubt that a decision not to appoint advisory counsel would not have constituted an abuse of discretion.[3] The Bigelow court was careful to limit its ruling to the particular circumstances of that case, including the fact that the defendant was facing the death penalty, and that the defendant " proved totally incompetent as a defense attorney," such that the " trial of a capital case could rightly be described as a '" farce or a sham." ' [Citation.]" (Bigelow, supra, 37 Cal.3d at p. 745.)[4]
Those circumstances are not present here. The trial judge's error was not that he should have appointed advisory counsel to assist Goodwillie and failed to do so, but rather, that he should not have reversed a duly entered order made by another superior court judge. The nature of this error is fundamentally different from the abuse of discretion found in Bigelow. Because it would not have been error to deny Goodwillie the assistance of advisory counsel at the outset, the per se reversal standard does not apply. (Cf. People v. Crandell, supra, 46 Cal.3d at p. 865 [where trial court failed to exercise any discretion on defendant's request for advisory counsel but a refusal to grant the request would not have been an abuse of discretion, per se reversal rule does not apply].)
Because the error in this case is not of constitutional dimension, we conclude that the proper standard by which to determine prejudice is the test announced in People v. Watson (1956) 46 Cal.2d 818, 836. (Crandell, supra, 46 Cal.3d at p. 865 [failure to exercise discretion on request for advisory counsel does not implicate constitutional right
and Watson prejudice standard applies].)[5] Goodwillie argues that he was prejudiced by the lack of advisory counsel because he was given only one month from the time the trial judge relieved advisory counsel to prepare for trial, and this was insufficient to allow him to " gain the legal expertise necessary to replace the assistance of counsel." Goodwillie contends that because he was " incapable of making a legal counter-argument[,] the motion [by the prosecution to exclude expert testimony on witness identification] was granted[,] despite the fact that appellant's defense was mistaken identity." Goodwillie also asserts that he was prejudiced because he failed to make objections and to conduct cross-examination at trial that advisory counsel would have recommended, and because advisory counsel could have prevented him from making certain tactical errors.[6]
It is not at all clear that the trial court would have denied the prosecutor's motion to exclude the eyewitness identification expert's testimony if Goodwillie had presented a different argument in opposition. Goodwillie has not established how advisory counsel would have been able to assist Goodwillie in presenting argument on that matter.
Further, even if the court had denied the prosecution's motion and the jury had heard from Goodwillie's expert, we are unconvinced that the jury would have returned with a different result. The jury heard testimony that Goodwillie admitted he crashed the Chrysler into the other vehicles. They saw the clothing found in the apartment where Goodwillie was apprehended, marred with small holes and oil stains. The deputy who chased the perpetrator on foot got oil on his hands from climbing the fences during the chase that was similar to the oil on the clothing found with Goodwillie. There were also a number of eyewitnesses who identified Goodwillie as the perpetrator, all of whom were law enforcement officials. The evidence of Goodwillie's guilt was strong, and Goodwillie presented no evidence that cast doubt on the eyewitness testimony. He did not present an alibi defense, nor did he present any witnesses who believed Goodwillie was not the perpetrator of the crimes that occurred that day. There is thus no reasonable likelihood that expert testimony as to the unreliability of eyewitness identification would have led to a more favorable result.
The same is true as to Goodwillie's other contentions regarding prejudice. Goodwillie's assertions that he was prejudiced by the lack of advisory counsel implicate the effectiveness of his own representation. All of the problems Goodwillie raises are the type of problems about which defendants wishing to represent themselves are forewarned. Goodwillie chose to represent himself despite having been warned of the potential negative consequences of doing so. Goodwillie waived his right to assert ineffective assistance of counsel claims when he requested to represent himself and signed the Lopez waiver form.
Even assuming advisory counsel would have been able to prevent Goodwillie from making some of the mistakes he raises, it is still not reasonably probable that the jury would have reached a different result. Goodwillie admitted during a post-arrest interview that he committed the acts underlying many of the charges. The jury took just over an hour and a half to reach its verdicts. Under these circumstances, there is no reasonable probability that there would have been a more favorable result if Goodwillie had been assisted by advisory counsel at trial.
B. Goodwillie's waiver of his right to be presented by counsel was made
with a full understanding of the consequences of the waiver
Goodwillie maintains that neither the arraigning judge nor the trial judge adequately ascertained that he understood the consequences of representing himself without the assistance of counsel. Goodwillie first contends that at the time he signed the Lopez waiver and stated his desire to represent himself at his arraignment, the judge conducted only a " cursory inquiry into [his] ability to represent himself." Goodwillie insinuates that because the arraigning judge was planning to appoint advisory counsel, that judge might not have been sufficiently concerned with ensuring that Goodwillie's waiver of his right to the assistance of counsel was knowing and voluntary.[7]
Goodwillie further contends that in light of the cursory Faretta warnings he was given when he first asserted his right to self-representation, the trial judge's failure to provide additional Faretta warnings when the judge relieved advisory counsel on
1. The arraignment judge adequately advised Goodwillie about the
significance and consequences of his decision to represent himself
" Both federal due process and
The test for determining whether a waiver of representation is valid " 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.]" (People v. Koontz, supra, 27 Cal.4th at p. 1070.) The record in this case demonstrates that Goodwillie did understand the disadvantages of representing himself, and that he chose to do so voluntarily.
a. Goodwillie indicated he had read and understood the contents
of the Lopez waiver form
The " record as a whole" in this case includes the Lopez waiver form and Goodwillie's confirmation at the
Goodwillie complains that the court " conducted no inquiry as to the specific matters in the waiver form, but asked appellant how much schooling he had completed, . . . whether he could read and write, and . . . whether appellant had any mental problems." However, the record establishes that the court did more than this.
The court asked the attorney who represented Goodwillie at the arraignment whether she was confident, based on her discussions with Goodwillie, that he understood the charged offenses and the maximum punishment. She responded that she was confident that he did. The court then asked Goodwillie if he had read the entire Lopez waiver form, to which Goodwillie responded in the affirmative. The court also asked Goodwillie whether he understood " everything on [the form]." Goodwillie again answered in the affirmative. Goodwillie also told the judge that his attorney had answered all of his questions concerning the form. When the court asked Goodwillie if his attorney had informed him of the maximum punishment he was facing, Goodwillie responded, " 14 years, 8 months."
The court went through each of the charged offenses with Goodwillie. The court also asked Goodwillie about his level of education, and Goodwillie responded, " I graduated high school and two years [of] college." Goodwillie informed the judge that he could read and write, and that he was not suffering from mental problems or " other infirmities" [8]
b. The arraigning judge orally advised Goodwillie about the
consequences of representing himself
In addition to the advisements provided in the Lopez waiver form, the arraigning judge spoke with Goodwillie about some particular consequences of a decision to represent himself. The court said to Goodwillie, " You understand that if you're allowed to represent yourself, you're not going to be entitled to any special treatment. You're going to be held to the same standards as any attorney representing himself; right?" Goodwillie indicated that he understood. The court then told Goodwillie, " You're going to be going up against somebody from the D.A.'s office, somebody who's an experienced attorney. Notwithstanding that, do you still wish to represent yourself?" Goodwillie again answered in the affirmative. The court also informed Goodwillie that he would not receive more law library privileges than those provided to other individuals who proceed in propria persona, and Goodwillie responded that he understood.
After all of this, the court stated on the record its findings regarding Goodwillie's waiver of representation by counsel:
" The court has made an inquiry into the depth, background, training, education. I do find that he's made a voluntary, intelligent and understanding waiver of his right to counsel. He's indicated on the record this afternoon he has read, in its entirety, the Lopez waiver form, he understands everything on this form. I'm granting him, at this time, the right to represent himself, and I'm executing the form."
Based on the court's advice regarding the potential dangers and disadvantages of self-representation and Goodwillie's acknowledgment that he understood those consequences and that he also understood the consequences and disadvantages set forth in the Lopez waiver form, the record clearly demonstrates that Goodwillie understood the disadvantages of self-representation when he chose to represent himself.
c. Goodwillie's choice to represent himself was made independently
from the issue whether he would have advisory counsel to assist him
Goodwillie argues that his " choice" was not voluntary because he " wanted ancillary counsel." However, Goodwillie was sufficiently informed about all of the consequences of self-representation. He was informed that he would be expected to follow all of the substantive and procedural rules without help from the judge, and that he would be facing experienced prosecutors who would not go easy on him. There was no mention made of advisory counsel at the time the court discussed with Goodwillie the Lopez waiver and the disadvantages of self-representation. Goodwillie was fully informed that the ultimate responsibility for his case would rest with him.[9]
Goodwillie reaffirmed his decision to represent himself even after he was made aware that he would no longer be receiving any services from advisory counsel. At the February 28 readiness conference, the trial judge and Goodwillie engaged in the following colloquy:
" The Court: . . . I am going to relieve Mr. Williams of this [sic]
role as advisory counsel. And if you wish to
continue to represent yourself, you certainly may
and will be afforded that right. Is that your
continuing desire to represent yourself in this case?
" The Defendant: Yes, it is.
" The Court: All right. So noted. And that's your decision even
knowing that the court is going to relieve Mr.
Williams; is that correct?
" The Defendant: Yes.
" The Court: All right. So noted."
Goodwillie asserts that the record " shows that there was no serious inquiry into whether appellant actually understood the significance and consequences of his decision when faced for the first time with the prospect of having to represent himself without the assistance of ancillary counsel." He further argues that " [t]he lack of any Faretta warnings on the date that ancillary counsel was removed was aggravated by the cursory nature of the Faretta inquiry several months earlier at the initial arraignment." As we
have already discussed, at the arraignment, the court sufficiently advised Goodwillie of the significance and consequences of a decision to represent himself. There was no need for the trial court to re-advise Goodwillie or to seek an additional waiver.
2. The trial court was not required to provide renewed Faretta warnings
to Goodwillie
Goodwillie contends that the situation in this case is analogous to that in People v. Hall (1990) 218 Cal.App.3d 1102 (Hall), in which " it was held to have been error when renewed Faretta warnings were not given at a late stage of the proceedings." However, the issue in Hall revolved around the trial court's failure to advise the defendant of the disadvantages of self-representation at a revocation/sentencing hearing that occurred two years after the defendant had been tried and convicted. (Hall, supra, 218 Cal.App.3d at p. 1106.) Hall stands for the rule that " a Faretta hearing must be held on the record to advise the defendant of the disadvantages of not being represented by counsel and to establish a knowing and intelligent waiver of the right to counsel" before a criminal defendant may represent himself at a " deferred sentencing hearing." (Ibid.) Although a parole revocation/sentencing hearing is technically part of the original criminal proceeding, it is distinct in substance. The same cannot be said here. The judge who arraigned Goodwillie adequately advised him of his right to counsel and established that he was waiving that right knowingly and voluntarily. No further waiver was necessary. To rule otherwise would impose on the trial court a duty to give Faretta warnings prior to every hearing or proceeding in cases in which the defendant is representing himself. The Sixth Amendment does not require such a rule:
" 'While it is true that the Sixth Amendment right to counsel applies at all critical stages of the prosecution, including the sentencing stage, it does not follow that once the assistance of counsel in court has been competently waived, a new waiver must be obtained at every subsequent court appearance by the defendant. A competent election by the defendant to represent himself and to decline the assistance of counsel once made before the court carries forward through all further proceedings in that case unless appointment of counsel for subsequent proceedings is expressly requested by the defendant or there are circumstances which suggest that the waiver was limited to a particular stage of the proceedings.' [Citation.]" (People v. Crayton (2002) 28 Cal.4th 346, 362 (Crayton).)[10]
C. The trial court did not violate Goodwillie's Sixth and Fourteenth Amendment
rights by excluding the testimony of an eyewitness identification expert
Goodwillie contends that the trial court violated his due process and Sixth Amended rights by limiting his ability to present his defense. During trial, the court granted the prosecutor's motion to exclude proposed testimony by an eyewitness identification expert whom Goodwillie intended to call as a witness to raise reasonable doubt as to the various witnesses' identifications of him as the perpetrator. Goodwillie asserted at trial, and asserts on appeal, that " in relation to the five charges stemming from the car chase there was no corroborating evidence" and that " the evidence of his guilt rested entirely on eyewitness testimony."
" A defendant has the general right to offer a defense through the testimony of his or her witnesses [citation], but a state court's application of ordinary rules of evidence--including the rule stated in Evidence Code section 352--generally does not infringe upon this right [citations]." (People v. Cornwell (2005) 37 Cal.4th 50, 82 (Cornwall).) " Although the high court in Chambers [v.
defense evidence constituted a denial of due process under the unusual circumstances of the case before it, it did not question 'the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures.' [Citation.]" (Cornwell, supra, 37 Cal.4th at p. 82.)
The leading California case allowing the introduction of expert testimony concerning eyewitness identification is People v. McDonald (1984) 37 Cal.3d 351 (McDonald), overruled in part in People v. Mendoza (2000) 23 Cal.4th 896, 914). (People v. Jones (2003) 30 Cal.4th 1084, 1112 (Jones).) In McDonald, the Supreme Court concluded that " [T]he decision to admit or exclude expert testimony on psychological factors affecting eyewitness identification remains primarily a matter within the trial court's discretion; . . . 'we do not intend to " open the gates" to a flood of expert evidence on the subject.' [Citation.] We expect that such evidence will not often be needed, and in the usual case the appellate court will continue to defer to the trial court's discretion in this matter. Yet deference is not abdication. When an eyewitness identification of the defendant is a key element of the prosecution's case but is not substantially corroborated by evidence giving it independent reliability . . . , it will ordinarily be error to exclude that testimony." (McDonald, supra, 37 Cal.3d at p. 377, fn. omitted, italics added.) The Supreme Court later restated the rule expressed in McDonald at follows: " Exclusion of the expert testimony is justified only if there is other evidence that substantially corroborates the eyewitness identification and gives it independent reliability." (Jones, supra, 30 Cal.4th at p. 1112, citing McDonald, supra, 37 Cal.3d at p. 376 and People v. Sanders (1995) 11 Cal.4th 475, 509.)
The trial court's decision to exclude expert testimony on the issue of eyewitness identification did not violate Goodwillie's right to due process. Goodwillie has not established that the proffered expert testimony would have had significant probative value in this case. (See Cornwell, supra, 37 Cal.4th at p. 82 [excluded evidence was not so vital to the defense that due process principles required its admission].) Specifically, the trial court's ruling did not prevent Goodwillie from presenting a defense that the eyewitnesses were mistaken in their identification of him. He was able to cross-examine the eyewitnesses and challenge the accuracy of their identifications. Further, the court instructed the jurors as to the factors they could consider when weighing the credibility of eyewitness testimony.[11] Most important, there were at least four witnesses who positively identified Goodwillie as the driver of the silver Chrysler on the day in question. (See Sanders, supra, 11 Cal.4th at p. 509 [contrasting " strong and unequivocal" eyewitness testimony in that case, consisting of three eyewitnesses who identified the defendant in lineups and at trial and a fourth who was " pretty certain" of her identification of the defendant at a videotape lineup and positive at trial, with equivocal eyewitness identification in McDonald, which included one eyewitness who asserted that the defendant was definitely not the perpetrator].)
There was also other evidence in this case that corroborated the eyewitness testimony, thus meeting the McDonald standard. (Jones, supra, 30 Cal.4th at p. 1112.) Goodwillie confessed to Detective Escobedo that he had been driving the silver Chrysler and that he had attempted to crash through the police barrier because at that point he realized the car he was driving was probably stolen and he did not want to go to jail.[12] Goodwillie also admitted to Escobedo that when he saw the lights of the patrol car and heard the sirens, he attempted to escape. Goodwillie minimizes the impact of this evidence, arguing that " there was no independent evidence to corroborate those identifications [made by witnesses to the car chase], except Detective Escobedo's testimony that appellant admitted crashing the Chrysler to him." Goodwillie fails to recognize that his admitting the acts underlying the crimes charged constitutes strong corroborating evidence that gives the eyewitness identifications independent reliability.
There was additional independent corroborating evidence presented in this case as well. Goodwillie was apprehended shortly after the driver of the Chrysler fled the scene by jumping over fences and running through a mobile home park. At the time of his apprehension, Goodwillie had numerous scratches on his arms and legs. Deputy Marquez, who had been pursuing the suspect and had jumped over the same fences as the suspect, testified that he suffered some scratches to his left hand during the pursuit. Upon apprehending Goodwillie, the officers collected clothing found in the apartment with Goodwillie. The back of a shirt the officers found " had some moisture on it" and there were three holes in the front. The shirt also had " some black oil-based substance" on it that appeared to be the same type of oil Deputy Marquez had gotten on his hands when he jumped over one of the iron fences while chasing the suspect.
TO BE CONTINUED AS PART
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[1] Another exception exists where a statutory provision specifically grants a judge the authority to consider a previous order and make necessary changes. (People v. Konow (2004) 32 Cal.4th 995, 1020 [" We conclude that when one judge . . . reviews an order of another judge compelling the magistrate to reinstate the complaint under section 871.5, under the authority granted by section 871.5 itself, the first judge acts properly, and does not threaten the orderly administration of justice or place himself or herself in the role of a one-judge appellate court over the second judge" ].)
[2] " No cases have defined the test of prejudice for failure to exercise discretion concerning the appointment of advisory counsel, but when as here a refusal to so appoint would be an abuse of discretion, we believe the same rule of per se reversal should apply." (Bigelow, supra, 37 Cal.3d at p. 744.)
[3] " Bigelow, supra, 37 Cal.3d 731, did not establish a 'fixed rule' that advisory counsel must be appointed for every pro se defendant in a capital case, and thus the question whether denial of a request for advisory counsel would have been an abuse of discretion must be determined on a case-by-case basis. 'As with all actions by a trial court within the exercise of its discretion, as long as there exists " a reasonable or even fairly debatable justification, under the law, for the action taken, such action will not be here set aside, even if, as a question of first impression, we might feel inclined to take a different view from that of the court below as to the propriety of its action." ' [Citations.]" (People v. Crandell (1988) 46 Cal.3d 833, 863.)
[4] Although it is clear from language in Bigelow that the Supreme Court was not relying on the Sixth Amendment's guarantee of the right to counsel in concluding that the trial court would have abused its discretion if it had exercised that discretion to deny Bigelow advisory counsel, the Supreme Court did not explain the source of the defendant's right. (Bigelow, supra, 37 Cal.3d at p. 745.) At one point, the Court appears to have created a new right: " A rule of per se reversal is the only way to protect the right of a defendant to a conscientious exercise of judicial discretion on the appointment of advisory counsel, and to vindicate the state's independent interest in the fairness and accuracy of a capital proceeding. [Citation.]" (Id. at p. 746, italics added.) The point remains confusing, however, since the Supreme Court's decision to employ the per se reversal rule appears to have arisen from concern about the failure to appoint advisory counsel, and not from the trial court's failure to conscientiously exercise its judicial discretion: " No cases have defined the test of prejudice for failure to exercise discretion concerning the appointment of advisory counsel, but when as here a refusal to so appoint would be an abuse of discretion, we believe the same rule of per se reversal should apply." (Id. at p. 744, italics added.; but see People v. Hutton (1986) 187 Cal.App.3d 934, 941 [" Contrary to the defendant's argument, People v. Bigelow, supra, does not give all criminal defendants a right to per se reversal of all cases in which motions for cocounsel are denied . . . . Thus, a criminal defendant is entitled only to the considered exercise of judicial discretion[,] not to an absolute right of reversal when his motion for cocounsel status is denied by the court" ].)
[5] Goodwillie argues that per se reversal should apply under the facts of this case. However, he also suggests that under Crandell, supra, 46 Cal.3d at page 865, the Watson standard applies " [i]f the trial court abuses its discretion in refusing to appoint advisory counsel." Although the error in Crandell is slightly different from the error here (i.e., failure to exercise discretion at all, as opposed to the unauthorized exercise of discretion), we agree that the same standard of prejudice should apply.
[6] The errors Goodwillie raises include his playing a tape from
[7] By stating that the " Faretta warnings" he received were given " in the context of appellant receiving appointment of ancillary counsel," Goodwillie suggests that the warnings were somehow stripped of their full significance.
[8] Goodwillie argues on appeal that the court failed to " ask any questions to ascertain if indeed appellant could read except to ask" if he could do so. According to Goodwillie, he " could have been entirely illiterate and the court would have had no way to know it." We reject Goodwillie's suggestion that the court did not sufficiently inquire into his ability to read. The trial court asked Goodwillie if he had read the form, and Goodwillie responded that he had. The court also asked Goodwillie if he could read, and Goodwillie responded in the affirmative. In light of the fact that Goodwillie also told the court that he had graduated from high school and had completed two years of college, the court could reasonably have concluded that Goodwillie was literate.
[9] The record is unclear as to whether, or when, the arraigning judge discussed with Goodwillie the possibility of appointing advisory counsel to assist him. There is no mention of ancillary or advisory counsel made on the record on the day of the arraignment, when the court discussed self-representation with Goodwillie. However, the pre-disposition minutes from that day state: " [Defendant] requesting to represent himself-granted[.] Sheriff to provide [defendant] all privileges as to pro pers [and]
[10] Contrary to Goodwillie's suggestion, the Supreme Court's decision in Crayton does not assist him. In discussing the decision in Crayton, Goodwillie indicates that he recognizes that at least one court has concluded that per se reversal is not necessarily required when a trial court erroneously fails to readvise a defendant and obtain a new waiver of counsel at rearraignment after the preliminary examination. By comparing this case with Crayton, Goodwillie implies that this case involves a failure to properly readvise. Apparently believing that this court would view his case as involving error arising from the failure to readvise Goodwillie and obtain an additional waiver at the time the trial judge relieved advisory counsel, Goodwillie seeks to establish that the error here was of greater magnitude than the error in Crayton, such that the prejudice rule in Crayton should not apply, and that per se reversal is required. However, we disagree with Goodwillie's premise that this case involves an error similar to the error in Crayton.
Crayton involved a trial court's failure to readvise the defendant and obtain a new waiver of the right to be represented by counsel at the defendant's arraignment in the superior court. (Crayton, supra, 28 Cal.4th at p. 360.) The defendant in Crayton had already been arraigned in the municipal court. (Ibid.) Pursuant to statute, the trial court was required to readvise and obtain a new waiver at the defendant's arraignment in the superior court. (Ibid.) " [T]he governing statutes provided . . . that a defendant in felony proceedings shall be advised of the right to counsel on at least two distinct occasions prior to trial: first, when the defendant is brought before a magistrate and advised of the filing of the complaint (§ 859), and second, after the preliminary examination, when the defendant is arraigned in superior court on the information (§ 987)." (Crayton, supra, 28 Cal.4th at p. 360.)
The Crayton court determined that a trial court's failure to readvise pursuant to statute did not require per se reversal. (Crayton, supra, 28 Cal.4th at p. 364.) The court held that the prejudicial effect of such an error is to be evaluated under the Watson harmless error test. (Ibid.) This is because the Supreme Court specifically determined that the Sixth Amendment right to the assistance of counsel does not require that the superior court readvise a defendant of his right to counsel and obtain a waiver at superior court proceedings that occur after the initial arraignment in municipal court. Rather, the requirement that the trial court readvise the defendant and obtain a waiver at the time of the arraignment in superior court derives from statute. (Id. at pp. 364-365.)
Because the error about which Goodwillie complains is not based on the trial court's failure to meet a statutory requirement to readvise upon arraignment in the superior court, Crayton is inapplicable. That case provides no guidance as to whether the court erred in failing to readvise and obtain another waiver from Goodwillie after the initial arraignment.
[11] The court instructed the jury with CALJIC No. 2.92. That instruction provided: " Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crimes charged. In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness' identification of the defendant, including, but not limited to, any of the following:
The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act;
The stress, if any, to which the witness was subjected at the time of the observation;
The witness' ability, following the observation, to provide a description of the perpetrator of the act;
The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness;
The cross-racial or ethnic nature of the identification;
The witness' capacity to make an identification;
Whether the witness was able to identify the alleged perpetrator in a photographic lineup;
The period of time between the alleged criminal act and the witness' identification;
Whether the witness had prior contacts with the alleged perpetrator;
The extent to which the witness is either certain or uncertain of the identification;
Whether the witness' identification is in fact the product of his or her own recollection; and
Any other evidence relating to the witness' ability to make an identification."
[12] Goodwillie stated at that time that his friend, Tyrone Brown, had given him the car to drive.
