Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kings County. Super. Ct. No. 03CM7616, James T. LaPorte, Judge.
Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leanne Le Mon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Frederick Jones, Sr. was convicted by jury of attempted murder (Pen. Code, §§ 664, 187, subd. (a); count 1), discharging a firearm at an occupied motor vehicle (§ 246; count 3), robbery (§ 211; count 4), assault with a deadly weapon (§ 245, subd. (a)(2); count 5), and residential burglary (§ 459; count 6). The jury found true various firearm allegations, a prior conviction allegation, and a prior prison term allegation. The trial court sentenced defendant to 15 years to life in prison, plus 37 years to run consecutively.
All statutory references are to the Penal Code unless otherwise noted.
In his first appeal, defendant contended (1) the trial court should have terminated his self-representation because it became apparent he was unable or unwilling to abide by the rules of procedure, (2) the trial court did not properly respond to defendant’s motion for ancillary funds, and (3) the trial court denied his right to be represented by counsel at his competency hearing (§1368) when it granted his Faretta motion to represent himself before it conducted the competency hearing. We agreed with defendant that the trial court erred by allowing him to waive his right to counsel while the issue of his competence was pending, and we remanded with directions that the trial court determine whether a retrospective competency hearing could be held and, if so, to hold one.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
On remand, defendant was appointed counsel and a feasibility hearing was held. The trial court determined that a retrospective competency hearing was feasible. A jury heard evidence and determined defendant had been competent to stand trial. The trial court entered an order affirming the prior judgment of conviction.
Defendant now appeals a second time, contending (1) defendant’s waiver of counsel was invalid because the trial court failed to advise him of his right to appointed counsel, (2) the trial court should have terminated his self-representation because it became apparent he was unable or unwilling to abide by the rules of procedure, and (3) the competency trial on remand was improperly limited to the determination of his competency to stand trial and should have encompassed his competency to waive the right to counsel. We will affirm.
DISCUSSION
I. Waiver of Right to Counsel
Defendant asserts that his waiver of the right to counsel was not valid because the trial court failed to fully advise him that he had the right to appointed counsel. He claims he was denied his right to counsel because “it appears [he] wanted to fire his retained counsel in order to conceal evidence of his mental disability. But he did not want to give up the right to appointed counsel at the guilt trial.” In other words, he believes the trial court should have informed him specifically that if he discharged retained counsel, he thereafter continued to have the right to appointed counsel. Despite the trial court’s advisements, which he concedes informed him that he had the right to be represented by appointed counsel at all stages, he claims the record is “ambiguous” regarding the advisement of his right to appointed counsel.
The People, citing People v. Senior (1995) 33 Cal.App.4th 531 (Senior), claim the issue is waived because defendant failed to raise it in his first appeal. Defendant replies that Senior does not apply in this case because we did not decide all the issues raised in the first appeal and, consequently, “the entire case remains open for additional arguments.” Assuming the issue is not waived, it nevertheless fails on the merits.
A defendant has a constitutional right to self-representation, provided that he or she knowingly and intelligently waives the constitutional right to the assistance of counsel. (Faretta, supra, 422 U.S. at p. 835; People v. Blair (2005) 36 Cal.4th 686, 708.) The right to counsel persists unless the defendant affirmatively waives that right. (People v. Koontz (2002) 27 Cal.4th 1041, 1069.) To validly waive the right to counsel, the defendant should be made aware of the dangers and disadvantages of self-representation. (Id. at p. 1070.) The record should establish that the defendant knew “‘“what he [was] doing and his choice [was] made with eyes open.” [Citation.]’” (Ibid.)
To insure a clear record of a knowing and voluntary waiver of counsel, the courts have set forth recommended items to be reviewed with the defendant, including such matters as cautions against self-representation, inquiries about the defendant’s education, advisement about the right to appointed counsel, and information about the charges and possible penalties. (People v. Koontz, supra, 27 Cal.4th. at pp. 1070-1071.) However, no particular words are required to admonish a defendant who seeks to waive counsel and elect self-representation. (Id. at p. 1070.) Rather, the test is whether the record as a whole demonstrates the defendant understood the significance and consequences of the decision and the disadvantages of self-representation, including the risks and complexities of the particular case. (Ibid.) The inquiry is pragmatic; the information that must be provided to a defendant in a particular case to intelligently waive counsel depends upon the particular facts and circumstances of the case. (People v. Sullivan (2007) 151 Cal.App.4th 524, 546.)
On appeal, we review the entire record to determine de novo whether the defendant’s choice to waive the right to counsel and elect self-representation was knowing and voluntary. (People v. Sullivan, supra, 151 Cal.App.4th at p. 547; People v. Goodwillie (2007) 147 Cal.App.4th 695, 719.) The defendant bears the burden to demonstrate he did not knowingly and voluntarily waive his right to counsel. (People v. McArthur (1992) 11 Cal.App.4th 619, 627.)
In this case, we are convinced that the trial court fully informed defendant of his right to appointed counsel and that defendant knowingly and voluntarily waived his right to counsel. Defendant was fully informed more than once that he had the right to appointed counsel; in response, he stated he understood but wished to represent himself, despite the trial court’s efforts to dissuade him.
For example, on April 7, 2004, at the hearing on defendant’s Faretta motion prior to the competency hearing, defendant stated he wished to relieve his retained counsel. The court asked defendant to clarify whether he was asking for the court to appoint a new attorney or to grant his request to represent himself. Defendant stated that he wished to represent himself in the competency proceedings. The court took his request under submission. On April 29, 2004, defendant again stated he wished to relieve retained counsel and represent himself. When the court asked if he wished to dismiss counsel and have a court-appointed attorney, he stated, “No, sir.” At that point, the court informed defendant that he would need to fill out a petition to proceed in propria persona. The court told him the purpose of filling out the form was to call to his attention the dangers of representing himself. The court stressed to defendant that there were many reasons why functioning as his own attorney was a very poor choice and a bad idea. The court advised him not to represent himself and that if he did so he would probably do a poor job.
On May 26, 2004, defendant was arraigned on the criminal charges. The court informed defendant that he had the right to an attorney and asked him if he wished to have an attorney appointed for him. Defendant stated that he wished to waive counsel and exercise his right to represent himself under Faretta. The court agreed and presented defendant with a petition to fill out. Again, the court informed him that self-representation is almost always unwise and his choice would likely work to his detriment. The court asked him if he understood, among other things, that if he could not hire his own attorney, the court would provide one for him free of charge, and defendant stated, “Yes. Yes, your Honor.” The petition defendant initialed and signed informed him, among other things, that he had the right to be represented by an attorney at all stages of the proceedings and, if he could not afford an attorney, the court would appoint one for him. The petition also informed him that the advice and recommendation of the court was that he not represent himself and instead accept court-appointed counsel.
The record plainly establishes that defendant understood he had the right to appointed counsel and his decision to represent himself was knowing and voluntary. Defendant’s speculation about his own strategy regarding whether to be represented by counsel in various phases of the proceedings is irrelevant. He was fully advised of his right to counsel and he chose not to take advantage of that right.
II. Failure to Revoke Self-Representation
Defendant argues the trial court abused its discretion by failing to revoke his in propria persona status when it became apparent that he was not capable of representing himself and was interfering with the orderly process of the courts.
Although a criminal defendant has the right to represent himself under the Sixth Amendment, this right is not absolute and a trial court “may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct,” “abuse[s] the dignity of the courtroom” or does “not [] comply with relevant rules of procedural and substantive law.” (Faretta, supra, 422 U.S. at pp. 834-835, fn. 46.) “Whenever ‘deliberate dilatory or obstructive behavior’ threatens to subvert ‘the core concept of a trial’ [citation] or to compromise the court’s ability to conduct a fair trial [citation], the defendant’s Faretta rights are subject to forfeiture. Each case must be evaluated in its own context, on its own facts ....” (People v. Carson (2005) 35 Cal.4th 1, 10.) In short, a trial court retains discretion to determine when a defendant has become so disruptive, obstreperous, disrespectful or obstructionist in his actions or words so as to preclude the exercise of his right to self-representation. (People v. Welch (1999) 20 Cal.4th 701, 735.) But, an ineffective, or even a missing, defense is not a basis to revoke a defendant’s choice to represent himself. (See People v. Parento (1991) 235 Cal.App.3d 1378 [no error for court not to appoint counsel after self-represented defendant refused to participate and was absent from trial].) Similarly, an utter lack of legal acumen or courtroom experience provides no relief for a defendant who exercises his right to represent himself; so long as a defendant is competent to decide to represent himself, the skill with which he thereafter defends himself is immaterial. (Godinez v. Moran (1993) 509 U.S. 389, 399 (Godinez) [defendant’s ability to represent himself has no bearing upon his competence to choose self-representation]; Faretta, supra, 422 U.S. 806, 836 [defendant’s technical legal knowledge is not relevant to an assessment of his knowing exercise of the right to defend himself; court makes no assessment of how well defendant mastered hearsay rule or voir dire]; People v. Windham (1977) 19 Cal.3d 121, 128 [trial court must permit defendant to represent himself upon ascertaining he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be; his lack of technical legal knowledge is irrelevant].) Indeed, “whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’” (Faretta, supra, at p. 834, fn. 46.)
Here, defendant points to his repeated and voluminous motions, some of which made no sense according to the trial court, and he notes that the court occasionally admonished him regarding his motions. Defendant maintains that the “manner in which he filed motions, the contents of the motions, and the repetitiveness of the motions, all indicate that [he] was unable or unwilling to abide by rules of procedure and courtroom protocol.” As we have stated, however, a defendant’s mishandling of his case is not grounds for revoking his in propria persona status. The fact that defendant’s motions were rambling, disjointed, incomprehensible or meritless does not persuade us that the trial court should have revoked his self-representation. Defendant was repeatedly informed that his decision to represent himself was not a wise one -- and that apparently turned out to be the case. The trial court had no duty to revoke defendant’s in propria persona status.
Finally, defendant suggests that it is reversible error when a trial court fails to revoke Faretta status due to a defendant’s unwillingness to follow the rules of procedure and protocol -- as an intentionally misbehaving litigant. This argument is simply absurd and unworthy of discussion.
III. Competency Standard
Citing the recent case of Indiana v. Edwards (2008) __ U.S. __ [128 S.Ct. 2379] (Edwards), defendant contends that, at the competency trial on remand, his competency to waive the right to counsel should have been determined under a standard higher than that used to determine whether he was competent to stand trial.
The People again maintain that defendant has waived the issue because he failed to raise it in his first appeal. In the alternative, the People say the issue fails on the merits.
Assuming the issue is not waived, we conclude the trial court applied the proper standard to determine defendant’s competency to waive the right to counsel.
“In Dusky v. United States (1960) 362 U.S. 402, the Supreme Court held that the standard for competence to stand trial is whether a defendant has ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’ and has ‘a rational as well as factual understanding of the proceedings against him.’ [¶] In Godinez v. Moran (1993) 509 U.S. 389, the Supreme Court articulated for the first time the standard for determining competence to plead guilty or to waive the right to assistance of counsel. The court specifically rejected ‘the notion that competence to plead guilty or to waive the right to counsel must be measured by a standard that is higher than (or even different from) the Dusky standard.’ (Id. at p. 398, italics added.)” (People v. Hightower (1996) 41 Cal.App.4th 1108, 1112-1113.) “[T]he competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” (Godinez, supra, at p. 399.) “The Supreme Court concluded that ‘[r]equiring that a criminal defendant be competent has a modest aim: It seeks to ensure that he has the capacity to understand the proceedings and to assist counsel. While psychiatrists and scholars may find it useful to classify the various kinds and degrees of competence, and while States are free to adopt competency standards that are more elaborate than the Dusky formulation, the Due Process Clause does not impose these additional requirements.’ (Godinez, supra, 509 U.S. at p. 402, italics added.) Put another way, Godinez teaches us that California is free to adopt ‘more elaborate’ standards than the Dusky standard for determining competence to waive the right to counsel but is not required to do so.” (People v. Hightower, supra, at pp. 1112-1113.) The Hightower court summarized: “California courts appear not to have adopted a ‘more elaborate’ standard than the federal standard for determining competence to waive the right to counsel. Under Godinez, that standard is the same as the standard for competence to stand trial.” (Id. at p. 1116 [because the trial court properly found defendant competent to stand trial, it necessarily follows that the court erred in denying his motion for self-representation; the two rulings are simply antithetical].)
Recently, in Edwards, the court held that “the Constitution permits judges to take realistic account of the particular defendant’smental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” (Edwards, supra, __ U.S. at p. __ [128 S.Ct. at pp. 2387-2388].) However, Edwards only dealt with whether a court may deny a “gray-area” defendant his right to self-representation, not whether it must do so. (Id. at p. __ [128 S.Ct. at p. 2385].) Godinez, on the other hand, “involved a State that sought to permit a gray-area defendant to represent himself. Godinez’sconstitutional holding is that a State may do so.” (Edwards, supra, at p. __ [128 S.Ct. at p. 2385].) In this case, the facts are analogous to those in Godinez; accordingly, the applicable standard was that enunciated by Godinez and left unchallenged by Edwards. Defendant’s competency to waive the right to counsel was determined under the correct standard.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Dawson, J.