Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS063424
RUSHING, P.J.
Defendant Luis Castro appeals a judgment entered following his conviction after jury trial. On appeal, defendant asserts the judgment should be reversed, because the trial court improperly revoked his right to self-representation in contravention of his constitutional rights.
The underlying facts of this case are omitted, because they are not relevant to the issues on appeal.
Defendant was charged with assault with great bodily injury (Penal Code, § 245 subd. (a)(1) - count 1) ; and possession of a deadly weapon in prison (§ 4502, subd. (a) - count 2). As to count 1, the information alleged defendant personally used a deadly weapon (§ 1192.7, subd. (c)(8)), and personally inflicted great bodily injury (§ 12022.7, subd. (a)). The information also alleged that defendant had suffered a prior strike and serious felony conviction. (§ 1170.12, subd. (c)(1); 667, subd. (a)(1).)
All further statutory references are to the Penal Code.
Defendant was convicted after jury trial of all counts. The jury found the allegation that defendant personally inflicted great bodily injury not true. (§ 12022.7, subd. (a)). The trial court deemed the allegations of prior convictions admitted. Defendant was sentenced to 11 years in state prison.
Discussion
Defendant asserts the judgment is per se reversible, because the court revoked his pro per status in violation of his constitutional rights. He argues the basis of the court’s revocation was improper, because it was as a result of defendant’s inability to read and write English.
Factual Background
At defendant’s request, on May 23, 2007, the court relieved defense counsel, and granted defendant the right to represent himself.
On June 6, 2007, appearing in front of a different judge, defendant’s right to self-representation was revoked. At the time, defendant was assisted by a Spanish language interpreter. The following colloquy occurred between defendant and the trial judge at a pre-trial hearing:
“THE COURT: Okay. Mr. Castro, do you want an attorney?
“DEFENDANT: Yes.
“THE COURT: You should have an attorney. You previously made a request to “represent yourself and I—
“DEFENDANT: I want to be an attorney.
“THE COURT: You want to be your own attorney?
“DEFENDANT: Yes.
“THE COURT: So you don’t want me to appoint an attorney to represent you?
“DEFENDANT: No.
“THE COURT: Then I’m a little confused. Obviously, we have a language problem. I’m confused about want you’re asking me to do.
“DEFENDANT: Can you say this to the Court. (Indicating the interpreter.)
“THE COURT: Can I say? I didn’t hear you, counsel. The air conditioner is on.
“THE INTERPRETER: I’m the interpreter.
“THE COURT: I’m sorry. I didn’t hear you.
“THE INTERPRETER: Mr. Castro has asked the interpreter to read this to the “Court, but it’s in English so—
“THE COURT: I can read it myself.
“DEFENDANT: Yes.
“THE COURT: Okay. If you’d just hand that to the bailiff, let me see what this is. Okay. Let me review this. I’m going to pass this matter. Have a seat Mr. “Castro. I’m going to call some other cases.”
(Whereupon other cases not related to this defendant were taken up.)
“THE COURT: On the Castro matter. Mr. Castro, I’m reading a note—it’s not in the form of a motion—the papers you had in your hand that were submitted to the Court in English where you’re indicating that you have several issues.
“One, that there’s no Spanish speaking assistant in the law library. And I assume there are no law books in Spanish, because in California we’re required to conduct all proceedings in English and all law materials would be in English. Do you read English?
“DEFENDANT: No, it doesn’t say in the book that I have that. It says that all the information has to be in Spanish. Everything that’s said here in court, the preliminary, has to be given to me in Spanish.
“THE COURT: Mr. Castro, the laws of the State of California provide that court proceedings are conducted in English. You are given the services of an interpreter to interpret matters into English. You are not provided transcripts or books or any legal materials in Spanish. My question to you is do you read English?
“DEFENDANT: No. Everything I do is done with a dictionary. And that’s why it’s there in my 995 motion.
“THE COURT: Mr. Castro, you indicated in one of your papers that you wish to have me appoint Spanish speaking stand-by counsel.
“DEFENDANT: Yes, to do the interpreting for me.
“THE COURT: You need an attorney, Mr. Castro. You cannot possibly represent yourself.
“DEFENDANT: Why not, if I’m doing everything correctly?
“THE COURT: Because you cannot read and write English.”
The court continued to speak to defendant about appointing an attorney for him, and stated:
“I’m going to find that given the language issues that have been raised by you during this hearing that you are not capable of properly representing yourself. It’s not a competency matter. I’m sure you would be capable were you able to read and write English. But I’m going to make a finding that you’re inability to have access to—or your inability in English makes you unfit to represent yourself as your own attorney.”
Following the court’s revocation of defendant’s pro per status in June 2007, defendant renewed his motion to represent himself, arguing that inability to read and write English is not a proper basis to revoke his pro per status. The court denied defendant’s motion.
After defendant was convicted, defendant moved for a new trial on the ground that his right to self-representation was improperly revoked. The court denied the motion.
Legal Analysis
“A criminal defendant has a right to represent himself at trial under the Sixth Amendment to the United States Constitution. [Citations.] A trial court must grant a defendant’s request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial. [Citations.]” (People v. Welch (1999) 20 Cal.4th 701, 729.)
In the present case, defendant knowingly and intelligently waived his right to counsel prior to trial, and was granted the right to represent himself. The issue here is whether the court appropriately revoked defendant’s pro per status after it determined that defendant could not read and write English.
In Faretta v. California (1975) 422 U.S. 806, the United States Supreme Court held that “the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct. [Citation.]... [Citation.]... [¶] The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.” (Id. at p.35, fn. 46.) However, here, there is nothing in the record demonstrating defendant was disruptive in court, or that he lacked the competence to represent himself. Rather, the trial court revoked defendant’s right to represent himself because defendant could not read and write English.
The present case is similar to People v. Poplawski (1994) 25 Cal.App.4th 881 (Poplawski), in which a panel of this court held that the trial court erred in revoking a defendant’s pro per status because he could not understand English. In Poplawski, the defendant, whose primary language was Polish, asked to represent himself. The trial court warned him against doing so, and inquired about his legal knowledge. The defendant expressed hope that he would be able to perform adequately. The court tried to dissuade him, but he insisted, and the court granted him pro per status. At a subsequent hearing before a different judge, the court discussed defendant’s pro per status. The defendant said he had no choice but to represent himself, because he was not being helped by his attorney. When the court asked if he wanted an attorney, the defendant said he did not. The court then asked, “ ‘I mean, did you make a motion to represent yourself because you thought [the public defender] was not helping you, is that what you did?’ ” The defendant responded, “ ‘I don’t understand the motion. What does it mean?’ ” (Id. at p. 886.) The court then stated, “ ‘This court finds that the defendant is not competent to represent himself and that’s based primarily on the language problem that this court has experienced with the defendant. [¶] There’s no problem with him, just that the court is not convinced he understands exactly the proceedings here, and that is to his detriment. [¶] So the Public Defender is reappointed.’ ” (Id. at p. 887.)
A panel of this court held in Poplawski that the trial court erred in revoking the defendant’s pro per status on the ground that he did not understand English. This court held that “the only valid reasons for revoking a defendant’s pro se status are disruptive in-court conduct or substantial evidence of incompetency,” and found that neither was present in the case. (Poplawski, supra, 25 Cal.App.4th at p. 889.) Moreover, this court found that the defendant’s lack of English language proficiency did not suggest that he could not abide by the rules of procedure or courtroom protocol. In addition, this court concluded that the defendant’s lack of familiarity with legal jargon was not an adequate or relevant reason to revoke pro per status. (Id. at pp. 891, 893, 895.)
We find the holding in Poplawski applicable to this case. Here, defendant used the assistance of a Spanish language interpreter, and did not read English. In questioning defendant about his request for legal materials in Spanish, the court determined that defendant’s difficulty with English, and his inability to read and write English prevented him from representing himself. It was after the court made this determination that the court revoked defendant’s pro per status, specifically citing defendant’s inability to read and write English as the reason for the revocation. Such a reason for the revocation was clearly improper under Poplawski.
Citing People v. Marshall (1997) 15 Cal.4th 1 (Marshall), the Attorney General attempts to argue that defendant is not entitled to a reversal in this case, because his request to represent himself was equivocal, having been made in conjunction with demands that legal materials be provided to him translated into Spanish. In Marshall, the California Supreme Court discussed the requirement that a request to represent oneself be unequivocal. It noted that the United States Supreme Court’s emphasis that a request be knowing, voluntary, unequivocal, and competent, “suggests that an insincere request or one made under the cloud of emotion may be denied.” (Id. at p. 21.) In reviewing decisions by lower courts, the Marshall court noted that some “have declared that a motion made out of a temporary whim, or out of annoyance or frustration, is not unequivocal—even if the defendant has said he or she seeks self-representation. [Citations.]... As one court expressed it, a court ‘properly may deny a request for self-representation that is a “momentary caprice or the result of thinking out loud.” ’ [Citation.]” (Ibid.)
The Attorney General’s reliance on Marshall, and its argument that defendant’s request to represent himself was equivocal is inapposite. On appeal, defendant complains of the court’s improper revocation of his right to represent himself, not the court’s failure to grant his request in the first instance. Indeed, defendant was, in fact, granted the right to represent himself in the trial court on his first request. It was only after the court determined that defendant could not read or write English that the court revoked defendant’s pro per status. The court’s revocation under these circumstances was improper under Poplawski, and in contravention of his Sixth Amendment right,necessitating reversal.
Because we reverse the judgment on the ground that defendant’s constitutional right to represent himself was violated, we deem defendant’s additional argument on appeal that the court’s findings on his prior convictions must be reversed moot.
Disposition
The judgment is reversed.
WE CONCUR: PREMO, J., ELIA, J.