PEOPLE v. GOODWILLIE

Filed 2/9/07

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, Allen J. Preckel, Judge.  Judgment vacated and remanded with instructions.

            Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.

I.

INTRODUCTION

            Appellant Markus Goodwillie appeals from his conviction for burglary, unlawfully taking an automobile, assault with a deadly weapon, petty theft, evading an officer with reckless driving, and resisting an officer.

            At his arraignment, Goodwillie waived his right to be represented by counsel, choosing instead to represent himself.  At that time, the judge who conducted the arraignment appointed advisory counsel to assist Goodwillie in preparing his case.  On the day originally set for trial, the judge who was assigned to try the case relieved the attorney who was serving as advisory counsel to Goodwillie, sua  sponte, commenting that he did not believe Goodwillie had a right to the assistance of advisory counsel.^[1]  After the trial judge relieved Goodwillie's advisory counsel, the judge asked Goodwillie whether he wished to continue representing himself in light of the fact that he would no longer have the assistance of advisory counsel.  Goodwillie reaffirmed his decision to represent himself.  At trial, the jury convicted Goodwillie on all counts.

            On appeal, Goodwillie argues that (1) the trial court violated his Sixth Amendment right to the assistance of counsel when the judge relieved Goodwillie's advisory counsel; (2)  the court violated his due process and Sixth Amendment rights by failing to ascertain whether Goodwillie " actually understood" the significance and consequences of his decision to represent himself; (3)  the court violated his due process and Sixth Amendment rights by granting the prosecution's motion to exclude the testimony of an eyewitness identification expert; and (4)  his due process and Sixth Amendment rights were violated when both the court and the prosecutor misinformed him of the amount of credit he could receive for good behavior under a plea offer the prosecutor had extended to him.

            While the trial court erred in reconsidering and effectively reversing the order of another judge appointing advisory counsel for Goodwillie, we conclude that the trial court's decision to relieve advisory counsel did not violate Goodwillie's Sixth Amendment rights.  Because Goodwillie has not established that he was prejudiced by the court's decision to relieve his advisory counsel, reversal on this ground is not required.

            With respect to the second and third issues Goodwillie raises, the trial court did ascertain that Goodwillie understood the significance and consequences of choosing to represent himself, and thus did not violate Goodwillie's constitutional rights in this regard.  We also conclude that the trial court did not violate Goodwillie's due process or Sixth Amendment rights when the court disallowed testimony by an eyewitness identification expert.

            Goodwillie's convictions must be reversed, however, because both the court and the prosecutor misinformed Goodwillie regarding his eligibility for good behavior credits under a plea bargain offered by the prosecution, thereby violating Goodwillie's right to due process.  The record discloses that Goodwillie would have accepted the plea bargain if he had known that he would in fact be eligible to receive 50  percent credit, rather than 15  percent credit, as he was informed by both the judge and the prosecutor.  We therefore vacate the judgment, and remand the matter to the trial court.

            On remand, the district attorney may elect, within 30 days, to retry the defendant and if the district attorney so chooses, resume the plea negotiation process, or the district attorney may submit the previously offered plea bargain to the trial court for its approval.  If the district attorney chooses to submit the plea bargain to the court and the court approves it, the judgment shall be modified consistent with the terms of the plea bargain. 

II.

FACTUAL AND PROCEDURAL BACKGROUND

A.        Factual background

            1.         The prosecution's case

            On August 9, 2004, John Ralph looked out his bedroom window at his truck, which he had parked outside of his apartment building in a visitor's stall.  Ralph saw a man he later identified as Goodwillie standing near the truck.  Ralph saw Goodwillie put something down his pants, then pull his shirt down over the object.  Ralph ran downstairs and encountered a neighbor who told him that Goodwillie had been inside the truck.  Ralph checked inside the truck and noticed that his handicapped parking placard was missing.  A few weeks later, Ralph saw Goodwillie come out of an apartment across the street from Ralph's apartment complex and get into a silver Chrysler 300M.  Ralph had the impression that the car was a rental car.

            On the morning of August 9, Margaret King, one of Ralph's neighbors, was outside smoking a cigarette when she saw a man sitting in the driver's seat of a white Ford Expedition.  She watched the man get out of the vehicle and walk across the street.  She then saw Ralph run out of his apartment.  Ralph asked King whether she had seen a man in his vehicle.  King picked Goodwillie's photo from a photo lineup and identified him as the man who had been sitting in Ralph's Expedition.  King later observed Goodwillie driving a silver car, and saw him go into one of the apartments across Presioca Street.

            On August 18, 2004, Goodwillie burglarized the apartment of Jaime Ocadiz.^[2]  Goodwillie entered the apartment through a bedroom window after Ocadiz left for work.  Goodwillie took a DVD player, speakers, a VCR, and approximately $25 to $30 from the apartment.

            The manager of Ocadiz's apartment complex, who lived in the apartment below Ocadiz, set up a surveillance video system in his personal backyard on August 18 because items were missing from his apartment, and there had been break-ins at other apartments in the complex.  The manager turned on the surveillance system before he left for work that morning.  When he returned home at approximately 5:00 p.m., he reviewed the video.  The manager saw Goodwillie on the video.  The manager knew that Goodwillie was " unofficially" staying in apartment A-4 in the complex.^[3]  He knew that Goodwillie's first name was Markus, and he had seen Goodwillie driving a silver car.

            San Diego County Sheriff's Detective Oscar Escobedo investigated the theft of Ralph's handicapped parking placard.  When Detective Escobedo presented a photo lineup to Ralph and King, both picked out Goodwillie's photograph.  Ralph told detectives that he had seen Goodwillie driving a silver car.  Detective Escobedo located the car.  After running the license plate number of the silver car through the police database, Detective Escobedo determined that the vehicle had not been reported stolen.  Detective Escobedo contacted Thrifty Rent A Car and discovered that the silver Chrysler was one of their cars and that it had been missing since July 27, 2004.  Escobedo instructed the rental car agency representative to report the car stolen.

            On August 18, 2004, San Diego County Deputy Sheriff Robert Day responded to a burglary call at Ocadiz's apartment complex.  Deputy Day contacted the apartment complex manager, who gave Day the videotape from his security camera.  Deputy Day lifted fingerprints from a window in Ocadiz's daughter's room and from a sliding glass door.  A fingerprint examiner concluded that a latent print lifted from the bedroom window at the Ocadiz apartment matched Goodwillie's right middle fingerprint.

            On August 19, deputies conducted a search for a silver Chrysler near Presioca Street, the street on which Ralph and Ocadiz's apartment buildings were located.  After they located the vehicle parked on a nearby street, deputies watched as Goodwillie got into the Chrysler and drove toward the end of that street.  The deputies followed Goodwillie down the street in three patrol cars with their lights and sirens activated.  Goodwillie turned onto Presioca Street and then onto another nearby street.  Two patrol cars blocked the intersection, preventing a Lincoln that was being driven by Deandre Pamplin, from moving through the intersection.  Goodwillie started to get out of the Chrysler, but then got back in and accelerated toward the Lincoln and the police blockade.  Goodwillie crashed the Chrysler into the Lincoln, pushing it through the blockade of patrol cars.  Pamplin suffered injuries to his back and neck.  The crash caused $6,000 in damages to Pamplin's car.

            After he collided with the Lincoln, Goodwillie drove the Chrysler through the police blockade, and continued driving to Birch Street.  Goodwillie crashed into a trailer at the dead end of Birch Street and fled on foot.  A sheriff's deputy chased Goodwillie as he climbed over several fences and ran into a mobile home park, but Goodwillie evaded apprehension.  One deputy thought that Goodwillie might be heading to the apartment where the deputies had surveilled him earlier.  The deputy contacted the police dispatcher and requested that the dispatcher send deputies back to the apartment.

            When deputies inspected the abandoned Chrysler, they found John Ralph's stolen handicapped parking placard in the glove compartment. 

            Sheriff's deputies returned to the apartment where Goodwillie had been staying and knocked on the door.  They received no response.  The deputies obtained a key to the apartment from the apartment manager and entered the apartment.  Inside they found Goodwillie, wearing only a towel.  He had scratches on his arms and legs.  Deputies noticed clothing covered with oil inside the apartment.  The sheriff's deputy who had chased Goodwillie had oil on his hands.

            In a post-arrest interview, Goodwillie told law enforcement officers that a friend had loaned him the Chrysler and that the friend was supposed to return to retrieve the car after a couple of days.  The friend never came back to get the car, so Goodwillie continued to drive it.  When Goodwillie saw deputies chasing him, he realized that the car must be stolen.  He said that he ran away because he did not want to go to jail.  Goodwillie denied that he had taken Ralph's handicapped parking placard, and also denied having burglarized the Ocadiz apartment.  However, after a detective showed him the surveillance video taken at the time of the burglary, Goodwillie admitted that he had been at the scene of the burglary, and that he had sold the items that were taken during the burglary in order to buy " dope."   Goodwillie also admitted that he had crashed into the Lincoln and the patrol car.

            2.         Goodwillie's defense

            Goodwillie's defense was mistaken identification.  Deputy Villalobos testified that he did not see Goodwillie leave his apartment, but that he did see Goodwillie get into the Chrysler.  Villalobos also testified that when the deputies returned to the apartment complex to search for Goodwillie after the car chase, the deputies went to apartment B-4 before they eventually found Goodwillie in apartment A-4.

            Ralph testified that he remembered that he had estimated that the man he saw near his vehicle was the same height as Goodwillie, but he admitted that because he was looking down on the scene, he could not really tell how tall the man was.  Ralph said he could not recall what he had told Deputy Sanchez.  Deputy Sanchez testified that Ralph had not indicated that he knew the suspect or that he had seen the suspect in the neighborhood at the time he reported the theft of his handicapped parking placard.

            In an apparent attempt to establish that the assault was not a serious one, Goodwillie's attorney elicited testimony from Pamplin that Pamplin had told police that he was fine and in no pain immediately after Goodwillie crashed into his car.  He did not see a chiropractor until August 24, 2004, six days after the incident.

B.        Procedural background

            Goodwillie was arraigned on criminal charges and entered not guilty pleas on August 24, 2004.  The court granted Goodwillie's request to represent himself, and ordered the appointment of ancillary counsel.^[4]  Goodwillie signed a Lopez waiver form.^[5]

            On November 30, 2004, the court conducted a preliminary examination, during which Attorney Alan Williams served as advisory counsel to Goodwillie.

            On December 8, 2004, the People filed an information charging Goodwillie with one count of petty theft (Pen. Code, § 484 (count 1)); one count of burglary (Pen. Code, §  59 (count  2)); one count of unlawfully taking a motor vehicle (Veh. Code, §  10851, subd. (a) (count  3)); one count of assault with a deadly weapon (Pen. Code, §  245, subd. (a)(1) (count  4)); one count of  assault with a deadly weapon on a peace officer (Pen. Code, §  245, subd. (c) (count  5); one count of evading an officer with reckless driving (Veh. Code, §  2800.2, subd. (a) (count  6); and one count of resisting an officer (Pen. Code, §  148, subd. (a)(1) (count  7)).

            Advisory counsel appeared with Goodwillie at hearings that were held on January 18, February 14, and February 28, 2005.

            On February 28, the date on which the trial was originally scheduled to begin, Goodwillie appeared in court with his advisory counsel.  The trial judge discussed his intention to relieve advisory counsel, sua sponte.  Before the court relieved counsel, Goodwillie rejected a plea bargain offer.  The trial court then relieved advisory counsel,

over Goodwillie's objection.  The trial court informed Goodwillie that his options were either to have the court appoint counsel to represent him, or to represent himself without the assistance of advisory counsel.  Goodwillie chose to represent himself.

            On March 28, 2005, Goodwillie pled guilty to count one, petty theft with a prior.  The court granted Goodwillie's motion to bifurcate the trial on the prior convictions.

            The jury trial on the remaining counts began on March 28, and continued on March 29, 30, and April 4.  On March 30, the prosecutor filed a motion to exclude eyewitness identification expert testimony.  The court granted the motion.

            The case was submitted to the jury at 4:30 p.m. on April 4.  Immediately thereafter, the court gave the jury standard admonishments and excused them for the day.  The jury began deliberating at 9:00 a.m. on April 5.  At 10:55 a.m. the jury informed the court that it had reached its verdicts.  The jury found Goodwillie guilty on all counts, and found true the allegations pertaining to counts 4 and 5 that Goodwillie had used a vehicle as a deadly weapon.

            On April 5, 2005, the trial court found true the allegations that Goodwillie suffered three prison priors.

            The trial court sentenced Goodwillie to an aggregate term of ten years in prison on June 14, 2005.  The 10-year sentence consisted of the upper term of six years on count 2 (burglary), eight months on count 1 (petty theft), one year four months on count 5 (assault with a deadly weapon on an officer), and a one-year enhancement for each the first two prison priors.  The court stayed the sentences on counts 3, 4, and 6, pursuant to Penal Code section 654, and struck Goodwillie's third prison prior.

            Goodwillie filed a timely notice of appeal on June 24, 2005.

III.

DISCUSSION

A.        While the trial court did not violate Goodwillie's constitutional right to the

            assistance of counsel when it relieved his previously appointed advisory counsel,

            the court erred in reconsidering and reversing the order of another judge

            1.         Background

            On August 24, 2004, just prior to his arraignment, Goodwillie requested that the court allow him to represent himself.  Judge Charles Ervin, who conducted the arraignment, discussed with Goodwillie whether Goodwillie understood the contents of the Lopez waiver form he had signed.  Goodwillie indicated that he had been advised as to the significance and consequences of representing himself.^[6]  The court granted Goodwillie's request to represent himself, and proceeded with the arraignment.  The transcript of that hearing does not include any discussion regarding the appointment of advisory counsel.  However, the minutes from the hearing indicate that the trial court granted Goodwillie's request to represent himself, ordered the Sheriff to provide Goodwillie with " all privileges as to pro  pers [sic]" and ordered " PCC to provide ancillary counsel." ^[7] 

            The minutes from a subsequent readiness conference that was held on September 3, 2004, before Judge William McGrath indicate that no advisory counsel had yet been assigned to Goodwillie.  The notes provide: " Clerk's office to contact PCC and [sic] provide him with ancillary counsel  .  .  .  ."   The minutes from at least three subsequent proceedings indicate that Goodwillie continued to proceed in propria persona, and that at these proceedings, " A. Williams" appeared with Goodwillie as " advisory" counsel.^[8]

            On February 28, 2005, the date originally set for trial, Goodwillie appeared before the trial judge, Judge Preckel, with " Alan Williams as advisory counsel."   Goodwillie requested that the trial be continued because he had not received some discovery materials he had requested.  The trial court granted Goodwillie's request and began discussing possible trial dates with the prosecutor and Goodwillie.  When Attorney Williams spoke up to inform the trial judge that he had a scheduling conflict during the week the court was proposing, the judge said,

" Well, that's another matter that, frankly, I wanted to talk about, and that is, why should the court, or the taxpayers, be paying for your services as advisory counsel, Mr. Williams?  I recognize you're kind of in the middle, perhaps, in terms of answering that question.  But I am raising the issue because there is a philosophical difference, I sense, between and amongst myself and some of my colleagues.  My attitude is that a defendant asserts his right to self-representation, and after due consideration and a hearing that request is granted, then the individual in question ought to be representing himself for all purposes.  There is no legal entitlement to advisory counsel, or co-counsel, or however you wish to characterize it.

" In other words, in my view, it's an all or nothing situation.  Mr. Goodwillie, you either represent yourself or you don't.  And that is to say if you don't, then instead you're represented by an attorney acting on your behalf.  So we're going to hopefully either reach a meeting of the minds this morning, or else the court is going to rule one way or another regarding your continuing self-representation.  And by that, if you wish to continue to represent yourself, fine.  But absent some real substantial and persuasive justification as to why the public ought to be paying for Mr. Williams' services as advisory counsel, I'm going to thank and excuse Mr. Williams from further involvement in this case."

            After Goodwillie explained to the court why he believed he needed Attorney Williams' assistance, the court said, " No, he's not going to come in any longer absent some showing that that's something to which you're legally entitled, and I know of no s[uch] authority."

            The court then asked Attorney Williams what his involvement in the case had been, other than having been present at hearings.  While Attorney Williams voiced his discomfort with his position as advisory counsel, he explained that he had advised Goodwillie as to the Evidence Code, trial procedures, how to research the law, and the names of cases.  The trial judge responded:

" I know it's been done before too, but that doesn't make it right in my view.  And don't get me wrong, I certainly appreciate the services that you've rendered.  But I also know that like most criminal defense attorneys, you've got a very busy and complex case load of your own.  And I question, frankly, whether your time is well spent in advisory capacity [sic] sitting alongside Mr. Goodwillie and figuratively, at least, holding his hand.  If he wants to represent himself, great.  And if he wants to continue to do so, great.  But you're going to be out of the picture after this morning."

            After further discussion with Attorney Williams, the court asked the prosecutor, " What's the offer on this case, Ms. Worden?  What's it been, or what is it?"   The trial court, the prosecutor, and Goodwillie proceeded to discuss plea options.  After Goodwillie rejected the final plea offer, the trial judge set a new trial date and said to Goodwillie, " Mr. Goodwillie, understanding and reminding you of the court's statements earlier this morning regarding the continuing involvement of Mr. Williams in this case, I am going to relieve him of this [sic] role as advisory counsel."  

            Goodwillie represented himself, without the assistance of advisory counsel, during the remainder of the criminal proceedings, including trial.

            2.         Analysis

                        a.  There is no Constitutional right to the assistance of advisory counsel

            Goodwillie contends that the trial court violated his Sixth Amendment right to the assistance of counsel by relieving his appointed advisory counsel just prior to trial.^[9]  Goodwillie claims that the Sixth Amendment guarantees a self-represented defendant the right to the assistance of advisory counsel.  We disagree.

            Goodwillie notes that the United States Supreme Court has determined that the Sixth Amendment gives a criminal defendant the right to be representedby counsel (Powell v. Alabama (1932) 287 U.S. 45) and the right to represent himself (Faretta v. California (1975) 422 U.S. 806 (Faretta)).  He contends, however, that the United States

Supreme Court has never ruled on the specific question he raises--i.e. whether the Sixth Amendment guarantees a defendant the right to the assistance of advisory counsel, or to something less than full representation by counsel.  The Attorney General appears to agree that the United States Supreme Court has yet to address this particular question.

            The weight of both federal and California precedent, including United States Supreme Court precedent, establishes that a criminal defendant does not have a constitutional right to the assistance of advisory counsel, but that it is within the discretion of trial courts to appoint advisory counsel to assist a criminal defendant who is proceeding in propria persona.  (See People v. Garcia (2000) 78 Cal.App.4th 1422, 1430 [" a defendant who elects to represent himself or herself has no constitutional right to advisory or stand-by counsel or any other form of 'hybrid' representation" ], citing McKaskle v. Wiggins (1984) 465 U.S. 168, 183 (McKaskle).) 

            In McKaskle, the United States Supreme Court stated:

" Faretta does not require a trial judge to permit 'hybrid' representation of the type Wiggins was actually allowed.  But if a defendant is given the opportunity and elects to have counsel appear before the court or jury, his complaints concerning counsel's subsequent unsolicited participation lose much of their force.  A defendant does not have a constitutional right to choreograph special appearances by counsel."   (McKaskle, supra, 465 U.S. at p. 183.)

            Both California courts and federal courts have interpreted this language as precluding a conclusion that the Sixth Amendment guarantees the right to advisory counsel or any other " hybrid" form of representation.  (See, e.g., People v. Blair, supra, 36 Cal.4th at p. 723, quoting People v. Bloom (1989) 48 Cal.3d 1194, 1218 (Bloom) [citing McKaskle in support of conclusion that " none of the 'hybrid' forms of representation, whether labeled 'cocounsel,' 'advisory counsel,' or 'standby counsel,' is in any sense constitutionally guaranteed" ]; United States v. Cromer (6th Cir. 2004) 389 F.3d 662, 682, fn. 12 [citing McKaskle in support of assertion that " [i]t is well settled that there is no constitutional right to hybrid representation" ]; United States v. Lawrence (4th Cir. 1998) 161 F.3d 250, 253 [citing McKaskle in support of assertion that " Sixth Amendment does not require a court to grant advisory counsel to a criminal defendant who chooses to exercise his right to self-representation by proceeding pro se" ]; United States v. Singleton (4th Cir. 1997) 107 F.3d 1091, 1100 [citing McKaskle in support of conclusion that a court may, in its discretion, allow attorney participation as advisory counsel, but that the Constitution does not mandate it].)

            The California Supreme Court has long held that advisory counsel and other hybrid forms of representation are not constitutionally mandated.  In People v. Mattson (1959) 51 Cal.2d 777, 795, the California Supreme Court stated unequivocally that the appointment of advisory counsel is a discretionary matter:  " Our conclusion that a California defendant has no absolute right to the services of an attorney in a mere advisory capacity harmonizes with the federal law as to right to counsel."   The California Supreme Court reiterated the rule that a criminal defendant does not have a constitutional right to advisory counsel in People v. Bigelow (1984) 37 Cal.3d 731, 744-745 [" [automatic reversal based on fundamental right to counsel] 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" ]; see also Garcia, supra, 78 Cal.App.4th at page 1430 [" a defendant who elects to represent himself or herself has no constitutional right to advisory or stand-by counsel or any other form of 'hybrid' representation" ]. 

            Goodwillie argues that much of the language in these cases constitutes dicta, and cannot " overrule the plain language and meaning of the Sixth Amendment right to assistance of counsel."   Goodwillie cites Bloom, supra, 48 Cal.3d 1194, as supporting his position.  The defendant in Bloom argued that because he sought only cocounsel status, and did not seek to fully represent himself, his request was addressed to the " 'sound discretion of the court.'"   (Id. at p. 1218.)  He then argued that the court had abused its discretion in granting his motion to represent himself because he had sought cocounsel status in order to seek a verdict of death.  On appeal, he argued that this purpose violated a public policy against using the judicial system to commit state-aided suicide.  (Ibid.)

            In setting out the legal framework in which it was reviewing Bloom's contention, the California Supreme Court stated:

" While the Sixth Amendment guarantees both the right to self-representation and the right to representation by counsel, a defendant who elects representation by counsel does not have a constitutionally protected right to appear as co-counsel [citations], and a defendant who elects self-representation 'does not have a constitutional right to choreograph special appearances by counsel' [citation].  Thus none of the 'hybrid' forms of representation, whether labeled 'co-counsel,' 'advisory counsel,' or 'standby counsel,' is in any sense constitutionally guaranteed."   (Bloom, supra, 48 Cal.3d at p.  1218, italics added.)

            Goodwillie asserts that this language was not only dicta, but that it was a " gratuitous conclusion" that went " far beyond the principles in Hamilton or McKaskle." ^[10]  (See People v. Hamilton (1989) 48 Cal.3d 1142 (Hamilton); see also McKaskle, supra, 465 U.S. 168.)  We are, however, bound by the Supreme Court's repeated holdings that the Sixth Amendment does not provide a criminal defendant with the right to any hybrid form of representation, including advisory counsel.

            The Supreme Court's decision in Hamilton further supports the conclusion reached in Bloom.  In Hamilton, the Supreme Court stated, " A criminal accused has only two constitutional rights with respect to his legal representation, and they are mutually exclusive.  He may choose to be represented by professional counsel, or he may knowingly and intelligently elect to assume his own representation.  [Citation.]  An accused who chooses professional representation, rather than self-representation, has no right to participate as cocounsel.  [Citations.]"   (Hamilton, supra, 48 Cal.3d at p.  1162.)^[11]  It is thus clear that under California law a criminal defendant's constitutional rights regarding counsel are either full representation by counsel or self-representation.

            The California Supreme Court has thus clearly held that the Constitution does not guarantee a criminal defendant the right to the assistance of advisory counsel when he or she chooses to exercise the right to self-representation.  Under California law, a criminal defendant's constitutional rights regarding counsel are either full representation by counsel or self-representation.  Goodwillie's assertion that the Sixth Amendment affords him the right to represent himself and at the same time receive the assistance of advisory counsel thus fails.

TO BE CONTINUED AS PART  II………

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^[1]           The trial was subsequently postponed for approximately one month.

^[2]           Ocadiz lived in an apartment complex across the street from Ralph's apartment.

^[3]           The manager explained that Goodwillie's name was not on a rental agreement, but that he " knew that [Goodwillie] was living in one of the apartments."

^[4]           In the minute order entered after the arraignment, the arraigning judge appointed what he referred to as " ancillary counsel" to assist Goodwillie.  From the context of the trial court's appointment, and the assisting attorney's later description of the services he provided to Goodwillie, it appears that the arraigning judge envisioned providing Goodwillie with the sort of " 'hybrid' form[] of representation (People v. Bloom [(1989)] 48 Cal.3d [1194,] 1218) that is often referred to as " advisory counsel."   " 'Advisory counsel,'  .  .  .  is [an attorney] appointed to assist the self-represented defendant if and when the defendant requests help.  [Citation.]  (People v. Blair (2005) 36 Cal.4th 686, 725.)  Unless we are discussing the actual order made by the arraigning court in this case, we will refer to this hybrid form of representation as advisory counsel.

^[5]           In People v. Lopez (1977) 71 Cal.App.3d 568, 571 (Lopez), the court suggested a set of advisements " designed to ensure a clear record of a defendant's knowing and voluntary waiver of counsel."   (People v. Koontz (2002) 27 Cal.4th 1041, 1070.)  " First, the court recommended the defendant be cautioned (a) that self-representation is 'almost always unwise,' and the defendant may conduct a defense '" ultimately to his own detriment" ' [citation]; (b) that the defendant will receive no special indulgence by the court and is required to follow all the technical rules of substantive law, criminal procedure and evidence in making motions and objections, presenting evidence and argument, and conducting voir dire; (c) that the prosecution will be represented  by a trained professional who will give the defendant no quarter on account of his lack of skill and experience; and (d) that the defendant will receive no more library privileges than those available to any other self-represented defendant, or any additional time to prepare.  Second, the Lopez court recommended that trial judges inquire into the defendant's education and familiarity with legal procedures, suggesting a psychiatric examination in questionable cases."   (Koontz, supra, 27 Cal.4th at pp. 1070-1071.)  The Lopez court also suggested that the trial court inquire as whether the defendant understands his right to court-appointed counsel, and that the court " explor[e]" the " nature of the proceedings," including the potential defenses and potential punishments, with the defendant.  (Lopez, supra, 71 Cal.App.3d at p. 573.)  Finally, the Lopez court noted that the defendant should be made aware that misbehavior or disruption could result in termination of his self-representation and that " in spite of his best (or worst) efforts, he cannot afterwards claim inadequacy of representation."  (Id. at p. 574.)

^[6]           We discuss Goodwillie's waiver of counsel further in part III.B., post.

^[7]           We take judicial notice that PCC is a division of the San Diego County Bar Association that provides ancillary services to indigent defendants who are acting in propria persona.

^[8]           A number of different judges presided at these proceedings, including Judges Ervin and McGrath, Judge Allan Preckel, Judge Herbert Exarhos, and Judge Louis Hanoyan.

^[9]           We requested further briefing from the parties, asking that they address whether the trial court's actions in relieving advisory counsel on the date set for trial might constitute an abuse of discretion.  In deciding this issue, we have considered the arguments the parties made in their supplemental briefing.

^[10]         In McKaskle, the United States Supreme Court was addressing the issue whether a court violated a defendant's right to self-representation by appointing standby counsel, over the defendant's objections.  The Court concluded that the Sixth Amendment does not preclude " participation by counsel to steer a defendant through the basic procedures of trial  .  .  .  even in the unlikely event that it somewhat undermines the pro  se defendant's appearance of control over his own defense."   (McKaskle, supra, 465 U.S. at p. 184.)  We recognize that the United States Supreme Court did not directly address whether a criminal defendant has a right to advisory counsel in McKaskle.  However, the California Supreme Court has concluded that the Constitution does not guarantee a right to advisory hybrid representation.

^[11]         Even when considering the issue in the context of a defendant facing the death penalty, the California Supreme Court concluded only that the trial court had abused its discretion by failing to appoint advisory counsel; the Court did not conclude that the defendant had a constitutional right to advisory counsel.  (See Bigelow, supra, 37 Cal.3d at pp.  744-746, italics added.)  In Bigelow, the trial court erroneously determined that it was not within the trial court's discretion to appoint advisory counsel to assist the defendant.  The Supreme Court concluded that the trial court not only possessed the discretion to appoint advisory counsel, but that if the trial court had exercised that discretion and had decided not to appoint advisory counsel, that would have constituted an abuse of discretion under the circumstances of that particular case.