Opinion
NOT TO BE PUBLISHED
County of Marin S.Ct. No. SC160215A
Bruiniers, J.
Appellant Paul Barrier was charged with felony possession of a short-barreled shotgun (Pen. Code, § 12020, subd. (a)(1)), possession of a billy club (§ 12020, subd. (a)(1)), cultivating marijuana (Health & Saf. Code, § 11358), and exhibiting a deadly weapon (§ 417, subd. (a)(1)). Following a jury trial in which Barrier was self-represented, he was found guilty of possession of the short-barreled shotgun and not guilty of the other charges.
All further code references are to the Penal Code unless otherwise indicated.
Barrier contends that he is entitled to possess the short-barreled shotgun under the Second Amendment and that his conviction for possession of that weapon must therefore be reversed. He also alleges that the trial court erred by not revisiting its decision to permit him to waive counsel and represent himself (Faretta v. California (1975) 422 U.S. 806), and that the court further erred in declining to reduce his felony conviction to a misdemeanor offense pursuant to section 17. We affirm.
I. Factual and Procedural Background
Barrier had an ongoing dispute with another man, Patrick Geraghty. On July 28, 2008, at about 11:00 p.m., Geraghty was visiting a friend at Barrier’s apartment complex. The two confronted each other outside Barrier’s apartment, and Geraghty alleged that Barrier pointed a 12-gauge shotgun at his midsection. Police were called. When the officers arrived, Barrier was holding a solid cylindrical steel stake about 12–18 inches long. Barrier denied owning a shotgun, but was found to have a 12-gauge shotgun shell in his shirt pocket. During a consensual search of Barrier’s apartment, the police found a loaded l2-gauge shotgun under a couch near the front door. The barrel of the gun had been cut down to approximately 14 inches. Barrier said that he had cut the barrel with a hacksaw to make it lighter. Police also located numerous marijuana plants in Barrier’s bedroom.
An information filed September 5, 2008, charged Barrier with possession of a short-barreled shotgun (§ 12020, subd. (a)(1)), possession of a billy club (§ 12020, subd. (a)(1)), cultivating marijuana (Health & Saf. Code, § 11358), and exhibiting a deadly weapon (§ 417, subd. (a)(1)).
Barrier elected to represent himself at trial. He admitted possessing the shotgun, and testified that he had modified it because “[i]t was too heavy.” He denied brandishing the gun at Geraghty, and claimed he was growing marijuana for medicinal purposes. On January 23, 2009, a jury found Barrier guilty of possession of the short-barreled shotgun and acquitted him of the other charges.
On March 11, 2009, the court placed Barrier on felony probation for a term of three years. Conditions of probation included a term of 44 days in county jail and a psychological evaluation. Barrier filed a timely notice of appeal.
II. Discussion
Barrier raises three issues in this appeal. First, he contends that his possession of a short-barreled shotgun is protected by the Second Amendment to the United States Constitution, and that he should have been able to present that defense to the jury. Next, he alleges that the trial court erred in granting him self-representation without first conducting a hearing to determine the basis for his dissatisfaction with his appointed public defender (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)), and in not reconsidering its decision to permit pro se representation when confronted with evidence that he had “delusional thoughts.” Finally, Barrier argues that the court abused its discretion in refusing to reduce his conviction from a felony to a misdemeanor under section 17, subdivision (b). We find none of these arguments meritorious.
Barrier raised his constitutional argument below by way of a motion to dismiss. He submitted to this court a pro se filing, entitled “Declaration of and from Appellant,” attempting to present additional argument on this question. His “Declaration” is an unauthorized pleading and will not be considered.
A. The Weapons Conviction
Subject to certain law enforcement exceptions, section 12020 prohibits the manufacture, importation, sale, or possession of certain categories of weapons, including any short-barreled shotgun or short-barreled rifle. A short-barreled shotgun is defined as one which has a barrel or barrels of less than 18 inches in length, or which has been altered or modified to have barrels less than 18 inches in length. Barrier does not dispute that the shotgun seized from his apartment falls within the statutory definition as a prohibited weapon.
Section 12020, subdivision (a)(1) states: “Any person in this state who does any of the following is punishable by imprisonment in a county jail not exceeding one year or in the state prison: [¶] (1) Manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, or possesses any cane gun or wallet gun, any undetectable firearm, any firearm which is not immediately recognizable as a firearm, any camouflaging firearm container, any ammunition which contains or consists of any fléchette dart, any bullet containing or carrying an explosive agent, any ballistic knife, any multiburst trigger activator, any nunchaku, any short-barreled shotgun, any short-barreled rifle, any metal knuckles, any belt buckle knife, any leaded cane, any zip gun, any shuriken, any unconventional pistol, any lipstick case knife, any cane sword, any shobi-zue, any air gauge knife, any writing pen knife, any metal military practice handgrenade or metal replica handgrenade, or any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, or sandbag.”
Section 12020, subdivision (c)(1) states: “As used in this section, a ‘short-barreled shotgun’ means any of the following: [¶] (A) A firearm which is designed or redesigned to fire a fixed shotgun shell and having a barrel or barrels of less than 18 inches in length. [¶]... [¶] (C) Any weapon made from a shotgun (whether by alteration, modification, or otherwise) if that weapon, as modified, has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length....”
Barrier also acknowledges that the United States Supreme Court, in U.S. v. Miller (1939) 307 U.S. 174 (Miller), long ago rejected a constitutional challenge under the Second Amendment to a federal conviction for possession of a sawed-off shotgun under a similar statute. “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” (Id. at p. 178.)
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” (U.S. Const., 2d Amend.)
He contends, however, that the more recent decision of the Supreme Court in District of Columbia v. Heller (2008) 554 U.S. __, [128 S.Ct. 2783] (Heller) “significantly shifted the parameters of the Second Amendment,” dictating a different result. The majority in Heller, finding the “inherent right of self-defense” central to the Second Amendment right, struck down a District of Columbia prohibition on possession of an operable handgun within the home, since the ban “amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose.” (Id. at pp. 2817–2818.) Heller, Barrier insists, provides constitutional protection for possession of weapons “typically possessed by law-abiding citizens for lawful purposes such as self-defense.” He then asserts that “a sawed-off shotgun is no less a weapon commonly possessed for self-defense” and that it must therefore “be accorded constitutional protection under the rationale of Heller.”
Barrier admits that the question of whether the Second Amendment has any application to the states has not been decided. We will assume, only for the limited purpose of addressing this issue, that it does.
One might question Barrier’s unsupported allegation that a sawed-off shotgun is a weapon “commonly possessed,” for any purpose, or that the it would fall within a class of arms “overwhelmingly chosen by American society” for any lawful use. These are questions we need not address, however, since the Supreme Court in Heller has already done so. Distinguishing Miller, the Court expressly recognized that “the Second Amendment right, whatever its nature, extends only to certain types of weapons” and that in Miller the type of weapon at issue (a sawed-off shotgun) was not eligible for Second Amendment protection. (Heller, supra, 128 S.Ct. at p. 2814.) The Court confirmed that, under Miller, “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” (Id. at pp. 2815–2816, italics added.) Far from implicitly repudiating Miller, the Supreme Court in Heller confirmed the continuing vitality of Miller’s holding that there is no Second Amendment protection for possession of weapons of this kind.
B. Self-Representation
There are two elements to Barrier’s claim that the trial court erred in permitting him to represent himself at trial. His first contention is that the trial court was required to conduct a Marsden hearing to determine the “source” and “depth” of his dissatisfaction with his appointed counsel before granting his request for self-representation. His second position is that the court was required, sua sponte, to reconsider its decision to permit him to represent himself when it was presented with evidence of his delusional thinking. We reject both positions.
Appellant first advised the court of disagreements with his appointed public defender near the conclusion of the preliminary hearing, stating that he “no longer want[ed] [the public defender’s] services and will seek private counsel.” After being held to answer, Barrier waived his right to be arraigned within 15 days so that he could have “more time to have [his] own attorney here.”
On September 8, 2008, at his initial appearance for arraignment on the information, Barrier explained to the court that he had interviewed “a bunch of people” but had not “selected the person [he was] looking for.” Barrier reported that he had interviewed “[a]bout eight” attorneys but that “some of them want[ed] more money than [he could] afford” and that others did not “want to do things the way [he wanted] to do them.” The court inquired about proceeding with arraignment with the public defender representing Barrier, asking: “Okay. So as you sit here now, Mr. Barrier, you wish to be represented by counsel?” Barrier responded, “Yes, by a private attorney.” When again asked by the court what he wished to do that day, Barrier replied, “If I could represent myself today then, you know, sure, I’ll do it today, but I want a private attorney.” (Italics added.) The court said, “But as I see it now, you just don’t want [the public defender] representing you?” Barrier replied, “That’s correct.” The court then told Barrier: “Okay. Well, you either need to be representing yourself or have counsel at this stage. If you don’t want to have [the public defender], I am not going to require you to keep him.” Barrier waived time for arraignment and the matter was continued to September 29, 2008, for arraignment and “either Faretta motion or new counsel.”
At the September 8 appearance, the court provided Barrier with written forms to be completed by those seeking self-representation. On September 29, Barrier advised the court that “I filled out the paperwork, and I guess I’m going to represent myself.” The court discussed with Barrier the inadvisability of self-representation, and the maximum penalties he faced if convicted. On the written form, Barrier stated he understood he had the right to a lawyer and that if he could not afford a lawyer, the court would appoint one. The form also explained the advantages of having a lawyer and the disadvantages of self-representation. He waived counsel “freely and voluntarily,” was not “threatened, coerced, or forced in any way to make this waiver,” and was “in complete possession and control of [his] mental faculties.” Barrier, who had represented himself in “about 12 or 13... civil cases in Federal Court,” said that he understood the disadvantages he faced. He also stated that he had read the charges and “the applicable laws,” was “confident that [he] could do a good job,” and was “aware that [he had] to read the Evidence Code and the local rules and the California Rules of Court for procedure.” The court found Barrier competent to represent himself and granted his request for self-representation.
1. No Marsden hearing was required
“When a criminal defendant seeks substitution of counsel on the ground that appointed counsel is providing inadequate representation, a trial court must give the defendant an opportunity to explain the reasons for the request. [Citations.] Although no formal motion is necessary, there must be ‘at least some clear indication by defendant that he wants a substitute attorney.’ [Citation.]” (People v. Mendoza (2000) 24 Ca1.4th 130, 156–157.) “[A] defendant is entitled to present evidence or argument on the matter of substitute counsel, assuming he has clearly indicated that he wants a substitute. [Citations.]” (People v. Nakahara (2003) 30 Cal.4th 705, 718.)
Barrier’s claim fails because he did not complain that the public defender was providing inadequate representation, nor did he request substitution of appointed counsel. (See People v. Martinez (2009) 47 Cal.4th 399, 418.) He told the court repeatedly that he wanted retained private counsel to represent him, or in the alternative to represent himself. “ ‘A request for self-representation does not trigger a duty to conduct a Marsden inquiry [citation] or to suggest substitution of counsel as an alternative.’ [Citation.]” (People v. Clark (1992) 3 Cal.4th 41, 105.) His only request for appointed counsel was an oblique request for advisory counsel. There is no constitutionally guaranteed right to the assistance of cocounsel or “advisory counsel.” (People v. Blair (2005)36 Cal.4th 686, 723.)
On the day trial commenced, the court again admonished Barrier about the dangers of self-representation, and Barrier again stated his desire to proceed pro se.
Barrier asked whether “we can change the arrangement from representation to assistance? I understand I can also have somebody assist me instead of represent me.”
Citing People v. Bigelow (1984) 37 Cal.3d 731, Barrier appears to suggest that it was an abuse of discretion for the court not to have appointed advisory counsel under the circumstances of this case, although Barrier made no direct request for such counsel. As the attorney general points out, Bigelow was a capital case with a foreign national defendant with a ninth grade education. Subsequent appellate cases have declined to extend Bigelow beyond its facts to noncapital cases. (People v. Garcia (2000) 78 Cal.App.4th 1422, 1428–1429.)
“‘The mere fact that there appears to be a difference of opinion between a defendant and his attorney over trial tactics does not place a court under a duty to hold a Marsden hearing.’ [Citation.]” (People v. Valdez (2004) 32 Cal.4th 73, 97.) The purpose of the Marsden inquiry is to allow the court to make an informed exercise of its discretion when ineffective assistance of counsel is alleged by the defendant, and to grant a request to substitute counsel if there is “ ‘ “a sufficient showing... that the right to the assistance of counsel would be substantially impaired... in case the request is not granted....”’” (Marsden, supra, 2 Cal.3d at p. 123, only final ellipsis added.) Given Barrier’s clearly expressed desire to represent himself, and the absence of any request for substitute appointed counsel, “the trial court was under no obligation to conduct an inquiry into any dissatisfaction defendant might have with his appointed counsel....” (Mendoza, supra, 24 Cal.4th at p. 157.)
In addition, the record here shows that the trial court told Barrier, “If you don’t want to have [the public defender], I am not going to require you to keep him.” Barrier was advised by the court, both orally and in writing, that he was entitled to appointed counsel if he wished to have one. A fair reading of the record is that the court was prepared to provide substitute appointed counsel if that was Barrier’s wish, even without the necessity of a Marsden hearing. Barrier can scarcely complain now that the court abused its discretion when he made no request for substitute appointed counsel, and when it appears that the court was prepared to exercise its discretion in his favor—had he made a clear request—without hearing additional evidence.
2. Barrier’s self-representation
“A defendant in a criminal case possesses two constitutional rights with respect to representation that are mutually exclusive. A defendant has the right to be represented by counsel at all critical stages of a criminal prosecution. (United States v. Wade (1967) 388 U.S. 218, 223–227; Gideon v. Wainwright (1963) 372 U.S. 335, 339–345; Powell v. Alabama (1932) 287 U.S. 45, 71.) At the same time, the United States Supreme Court has held that because the Sixth Amendment grants to the accused personally the right to present a defense, a defendant possesses the right to represent himself or herself. (Faretta v. California, supra, 422 U.S. 806, 819 (Faretta).)” (People v. Marshall (1997) 15 Cal.4th 1, 20, parallel citations omitted.)
The trial court granted Barrier’s request for self-representation after advising him of the risks, and after determining his competence to do so. Barrier faults the court for not reconsidering its determination of his competence to waive counsel when evidence of his bizarre or delusional ideation came to the court’s attention. To the contrary, the court did in fact consider the information presented, and concluded that Barrier was nonetheless competent to represent himself at trial. We do not find that determination to be erroneous.
The material, presented to the court by the district attorney on the day prior to trial, consisted of copies of content from Barrier’s website that Barrier had provided in discovery. While the copies are not included in the record before us, the material was apparently appropriately characterized by the district attorney as “evidenc[ing] some unusual thinking, or at least out of the social norms,” and by the trial court as “outlandish and bizarre.”
For example, Barrier contended, on his website and before the court that “there is a satanic cult in Sonoma County, San Francisco County, called the Bohemian Grove, which a lot of people in law enforcement are members of.” Barrier alleged that there was a conspiracy against him and that “someone wanted [his] sperm to create children for satanic murders.” He stated there was “a cult in Sonoma County that is attended by people in law enforcement. That’s not disputed, and they celebrate satan. They celebrate child murder.” He claimed they had killed some of his biological children. He also claimed that various “celebrity children” were his, and he had sued entertainer Madonna Ciccone, who he said was a “lesbian satanist,” asserting paternity of her daughter. Barrier told the court that he had previously been psychologically evaluated and that “[s]ome people have... called [him] schizophrenic and paranoid,” but that he had “proof that disputes that.” He later asserted that he had telepathic abilities.
At the time of sentencing the court also learned that Barrier was receiving social security disability benefits due to his condition, that he had been evaluated in a prior case for his competence to stand trial under section 1368, and that he had twice been held for mental evaluation under Welfare and Institutions Code section 5150.
After considering the material presented, and Barrier’s responses to the court’s inquiries, the court agreed that “there’s some delusional thinking going on,” but further noted that: “everything I’ve seen in his presentation of this case has been entirely competent. [¶] He’s been -- his motions have been lucid, and they’ve made sense, and they’ve not engaged in any sort of tangential delusional references so far. His argument and his motions, although not legally sound in some cases, at least did follow through with logic, and they were linear in that regard. [¶] I don’t see that if there’s a mental illness diagnosis here, that it’s affecting his ability to represent himself in this case, and I frankly still don’t have a doubt as to his competence under 1368, nor under the Constitutional right to represent oneself, and I would plan on proceeding through trial with Mr. Barrier’s exercising his right to represent himself. [¶] I just don’t think our conversation here and the contents of this website can -- or that they draw me to the conclusion that he’s not competent either under 1368 or his right to competently represent oneself.”
Barrier cites to nothing in the trial record that evidenced delusional behavior in his presentation of his case to the jury. In fact, he admits that the trial “proceeded with few complications,” that Barrier was “respectful and considerate,” and that other than some minor references, he did not discuss matters that had been ruled “off-limits” during pretrial motions. After the jury had rendered its verdict, the court complimented Barrier on his conduct during the trial, telling him that he had done a “good job” and describing him as “articulate,” “smart,” “well-spoken,” and “professional.” The court observed that Barrier knew “how to behave in a courtroom setting,... how to research law, make [his] points, argue to a jury. All of those things indicate to me [he is] a very rational, smart, intelligent person.”
Barrier suggests that the court’s postverdict comments that there appeared to be mental health issues or “mental health ailments” requiring psychological and possibly neuropsychological testing through the Probation Department are inconsistent with its determination that he was qualified to represent himself. They are not. The court did not declare a doubt as to Barrier’s competency, and did not seek to suspend proceedings at any time under section 1368, but rather sought to determine what probation conditions were appropriate. As discussed post, the possible existence of a mental illness does not preclude a finding of competency to waive counsel.
Barrier does not contend that his delusional thinking rendered him incompetent to stand trial. Rather he argues that application of a different, and more rigorous, standard of mental competence is required in assessing a defendant’s ability to waive counsel, relying upon the recent Supreme Court decision in Indiana v. Edwards (2008) 554 U.S. ___, [128 S.Ct. 2379] (Edwards).
The Constitutional standard of “mental competence” necessary to permit a defendant to stand trial was articulated in Dusky v. United States (1960) 362 U.S. 402 (Dusky), and Drope v. Missouri (1975) 420 U.S. 162 (Drope). Dusky defines the competency standard as including both (1) whether the defendant has “ ‘a rational as well as factual understanding of the proceedings against him’ ” and (2) whether the defendant “ ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.’ ” (Dusky, at p. 402.) In Drope, the Court stated that it “has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.” (Drope, at p. 171.)
Our own Supreme Court, prior to Edwards, has held that the standards of mental competence to waive the right to the assistance of counsel and to stand trial were the same. (People v. Welch (1999) 20 Cal.4th 701, 732 (Welch).) The Welch court cited the United States Supreme Court decision in Godinez v. Moran (1993) 509 U.S. 389, 399 (Godinez) which “rejected the proposition ‘that a defendant who waives his right to the assistance of counsel must be more competent than a defendant who does not, since there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights.’ [Citation.]” (Welch, at p. 732; see also People v. Halvorsen (2007) 42 Cal.4th 379, 432–433 [Faretta right “may be asserted by any defendant competent to stand trial”; error to deny defendant’s motion to represent himself at penalty retrial on ground that the defendant “lacked the mental capacity to represent himself”].)
The question presented in Edwards was whether the Constitution required a state to permit self-representation of a defendant who evidenced mental illness, even though he had been found competent to stand trial. (Edwards, supra, 128 S.Ct. at pp. 2382–2383.) The Supreme Court held that it did not. (Id. at pp. 2387–2388.) Godinez was distinguished in Edwards on the basis that Godinez dealt with competence to enter a guilty plea, rather than competence to stand trial. (Edwards, at p. 2385.) Moreover, the Court noted, “Godinez involved a [s]tate that sought to permit a gray-area defendant to represent himself[,]” but did not tell a state whether it could deny such a defendant the right to represent himself. (Ibid.)
The argument that Edwards now mandates a different Faretta competency standard in California has since been addressed and rejected by our Supreme Court in People v. Taylor (2009) 47 Cal.4th 850 (Taylor), holding that “Edwards did not alter the principle that the federal constitution is not violated when a trial court permits a mentally ill defendant to represent himself at trial, even if he lacks the mental capacity to conduct the trial proceedings himself, if he is competent to stand trial and his waiver of counsel is voluntary, knowing and intelligent. [Citation.]” (Taylor, at p. 878.) There is no contention, and no evidence, that Barrier’s waiver of his right to counsel was not voluntary, knowing, and intelligent, and Barrier’s claim of error therefore fails.
C. Exercise of discretion under section 17
Barrier maintains that the court abused its discretion in declining his request at sentencing to reduce his conviction to a misdemeanor. In denying the motion the court stated that it would not consider the charged offenses of which Barrier was acquitted. The court went on to say, “Nevertheless, the manner in which the sawed-off shotgun was possessed, being loaded, near the door, under circumstances that did have some volatility in them, and although you didn’t commit any other crimes in connection with this crime, the circumstances indicated some volatility and does cause the [c]ourt some concern with regard to the manner in which this crime was committed.” (Ibid.)~ The court also noted that Barrier’s “record is not completely clear,” apparently referring to a prior battery conviction.
Barrier acknowledges the considerable discretion vested in the trial court in determining whether to reduce a “wobbler” offense to a misdemeanor. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968 (Alvarez).) He contends, however, that the court’s further comments on the record that “the whole circumstances, the flavor, the feeling, the circumstances around which the police found the gun were not completely innocuous” and that “other things [were] going on” failed to articulate any justifiable reason for denial of the reduction.
We apply “[an] extremely deferential and restrained standard” in our review of sentencing discretion under section 17, subdivision (b). (Alvarez, supra, 14 Cal.4th at p. 981.) “On appeal, two additional precepts operate: ‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.] Concomitantly, ‘[a] decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” [Citations.]’ [Citation.]” (Id. at pp. 977–978, only second & final citation omissions added.) The nature and circumstance of the offense are relevant matters that the court properly could, and did, consider in its decision. (Ibid.) We find nothing to indicate that the court’s decision was irrational or arbitrary, and no abuse of discretion is shown.
III. Disposition
The judgment is affirmed.
We concur: Jones, P. J., Needham, J.
He was advised that he had no constitutional right to assistance, but did have a constitutional right to represent himself “if you want to do that.”