Opinion
A128323 A131195
08-24-2011
THE PEOPLE, Plaintiff and Respondent, v. VADIM GOLDENBERG, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County Super. Ct. No. 207683)
Vadim Goldenberg appeals from a judgment imposed following revocation of his probation. He contends that the trial court committed reversible error in denying his Marsden and Faretta motions. We conclude that the court erred in granting the Faretta motion.
People v. Marsden (1970) 2 Cal.3d 118.
Faretta v. California (1975) 422 U.S. 806.
I. FACTUAL BACKGROUND
On January 12, 2009, defendant pled guilty to stalking (Pen. Code, § 646.9, subd. (a)) and battery resulting in serious bodily injury (Pen. Code, § 243, subd. (d)). The trial court suspended imposition of sentence and placed defendant on probation.
A motion to revoke probation was filed on December 10, 2009. On December 24, 2009, defendant admitted a probation violation. The court reinstated him on probation on conditions including that he stay 100 yards away from Davina Astrid Bryan-Ajania and Diane Mosely. The District Attorney filed a new motion to revoke probation on January 13, 2010, alleging that defendant violated probation by stalking Bryan-Ajania. The matter was placed on the court's calendar for January 14, 2010. At that hearing, the court appointed counsel for defendant. The probation officer then recommended that defendant undergo a psychological evaluation so that he could prepare a supplemental report. Initially, the court was inclined to order the evaluation and to continue the matter for the supplemental probation report. But upon hearing opposition from the assistant district attorney about the cost of the evaluation, that it would not bear on defendant's mental competence, and that he did not qualify for behavioral health court, the court deferred its consideration of the request and continued the matter for a supplemental probation report.
On February 2, 2010, defendant made a Marsden motion. The court cleared the courtroom and heard the motion. The following colloquy occurred: "[THE COURT]: Okay. Mr. Goldenberg is present, Mr. Zisholz [conflict counsel] is present, otherwise the courtroom has been cleared of everyone, except my staff. [¶] Mr. Goldenberg, I understand you want to have a new lawyer. [¶] [THE DEFENDANT]: Yes, ma'am. [¶] I have fired my first attorney for the reason being he was ineffective. I explained to Jim Hannah [probation officer], I explained to James Senal [former defense counsel] I hadn't been served no order when you gave that order on that day was December 24th. As I'm looking at my notes, while I was in the bullpen, I never got served when I came out. [¶] I made over 50 phone calls. I called James Hannah. I left messages. I left—I don't know who I'm supposed to stay away from. [¶] My last accident was about seven months ago and I have facial recognition problems. I have long-term memory and short-term memory problems. [¶] I'm currently on social security, SSI, for those problems, ma'am. [¶] [THE COURT]: Sir, the point of this hearing is for you to tell me what problems you are having with your current lawyer. [¶] [THE DEFENDANT]: I'm trying to lead up to that, ma'am. [¶] [THE COURT]: Well, let's get to the point, sir. [¶] [THE DEFENDANT]: And I thought I was going to get some help from counsel. He has a collect call on his block. He doesn't accept my phone calls. I asked him to come see me before court, come talk to me before he makes any moves. All I get is empty promises. I've had my friends call, I had my wife call. [¶] He came to see me one time. I don't believe that's effective counsel. I don't believe he has my best interest in mind, ma'am, one hundred percent. So I would like to go pro se at [this] point. [¶] I'm not going to go through—I'm not going to get my—crappy attorneys. Sorry to say it like that. But I don't want to do it anymore. I want to represent myself. I know it's not a smart move but that's what I want to do. I'm done with him. I don't want to have nothing to do with him no more. [¶] I don't believe—I can't believe an attorney wouldn't accept our calls. He doesn't answer phone calls."
The court then proceeded with inquiries related to defendant's Faretta request: "[THE COURT]: All right, sir. Let me ask you some questions. You say you want to represent yourself. [¶] [THE DEFENDANT]: Yes, ma'am. [¶] [THE COURT]: Have you ever represented yourself before? [¶] [THE DEFENDANT]: No, ma'am. [¶] [THE COURT]: Tell me the highest level of education you've had. [¶] [THE DEFENDANT]: I have a college education. [¶] [THE COURT]: Did you graduate? [¶] [THE DEFENDANT]: Yes, ma'am. I got an AA degree in automotive diesel and motorcycle technology. [¶] [THE COURT]: Where is that? [¶] [THE DEFENDANT]: I went to four or five. Mendocino College, City College. There is one in Ukiah also, and in Phoenix, Arizona. [¶] [THE COURT]: Why are you on social security? [¶] [THE DEFENDANT]: I've had several motorcycle accidents. I used to race cars and motorcycles up until I was 16, my last wreck. I was doing 55, got knocked off the back. I have head injuries, back problems, and ribs sticking into my lungs. [¶] [THE COURT]: So Mr. Goldenberg, it's my understanding that you claim you have short-term memory loss; is that correct? [¶] [THE DEFENDANT]: Yes, ma'am. And facial recognition problems. [¶] . . . [¶] [THE COURT]: How do you propose to represent yourself and conduct yourself as a lawyer if you have short-term memory loss? [¶] [THE DEFENDANT]: I'm going to be using my notes, ma'am. And at the time I wasn't against the 1017, I wanted to order that for myself. But I'm done with counsel because he doesn't have my best interest in mind. [¶] [THE COURT]: Well, we are going to do this one at a time, Mr. Goldenberg. You said that you don't think it's a smart move. If we set this matter for a hearing, sir, and the witnesses that you allegedly stalked come into court, you are going to have to ask them some questions. Do you understand that? [¶] [THE DEFENDANT]: Yeah, I understand that. I don't have a problem with that. Yeah. [¶] [THE COURT]: Well, okay. [¶] [THE DEFENDANT]: I would like to set it for hearing as soon as possible. [¶] [THE COURT]: Okay, Mr. Goldenberg. [¶] [THE DEFENDANT]: Yes. [¶] [THE COURT]: You may represent yourself. That moots the Marsden motion. [¶] Mr. Zisholz, thank you very much for your service. Please provide all of your discovery to Mr. Goldenberg. He is going to represent himself. [¶] Mr. Goldenberg, I want to make it clear to you that you will not be given any special privileges or anything because you are not a lawyer. You will have to conduct yourself as a lawyer. You will have to follow all of the court procedures. [¶] Do you understand that? [¶] [THE DEFENDANT]: Yes, your Honor, I understand. I just need one thing to ask you one favor; and that is, access to the law library. I'm currently in San Bruno. If I can get something to state that I am representing myself in pro se and I need use of the law library. [¶] [THE COURT]: I will ask the clerk to generate a minute order that can be given to the sheriffs department that Mr. Goldenberg is now representing himself and he should be given access, according to the sheriffs department's rules, to the law library."
Evidence Code section 1017 provides for the appointment of a psychotherapist to examine the defendant in a criminal proceeding to provide defense counsel with information as to whether to enter or withdraw a plea based on insanity or to present a defense based on the defendant's mental or emotional condition.
The contested revocation hearing was held on March 3, 2010. The court found by a preponderance of the evidence that defendant violated the stay-away order in that he made an effort to have contact with Bryan-Ajania.
On March 5, 2010, defendant moved for a new probation revocation hearing. The court denied the motion. Defendant then requested "advice counsel" and asked for a continuance of the sentencing hearing. Defendant also asked that he be allowed to enter a program at the Henry Ohlhoff House. The court said that it would consider defendant's request as one to modify his probation on conditions including that he complete a certain type of program. The assistant district attorney opposed defendant's request and argued that the aggravated term be imposed. The court found that defendant was not amenable to probation and revoked it. When the court asked defendant if he waived arraignment for judgment, defendant again requested "advice" counsel. The court denied the request, and denied defendant's renewed request for a continuance. The court sentenced defendant to the aggravated term of three years on the stalking offense, and a concurrent midterm of three years on the battery offense.
II. DISCUSSION
Defendant first contends that the trial court erred in not conducting a full Marsden hearing. He also argues that the trial court erred in granting his Faretta motion. We conclude that the trial court erred in allowing defendant to represent himself at the probation revocation hearing.
When a defendant complains about the adequacy of his appointed counsel, Marsden requires that the trial court permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance, and to conduct an inquiry sufficient to determine whether counsel is in fact rendering effective assistance. (Marsden, supra, 2 Cal.3d at pp. 123-124; People v. Smith (2003) 30 Cal.4th 581, 604; People v. Eastman (2007) 146 Cal.App.4th 688, 695.) While defendant here was permitted to articulate the reasons for his dissatisfaction of counsel, in the midst of listing his complaints, he interjected a request to proceed pro se. The court construed this request as a Faretta motion and proceeded to question defendant about his abilities rather than disposing of the Marsden motion. As defendant suggests, however, his request for self-representation was arguably made in anger or frustration and was not unequivocal. (See People v. Marshall (1997) 15 Cal.4th 1, 21.) The court should first have made a record that defendant's complaints about his counsel were adequately aired and considered. (See People v. Eastman, supra, 146 Cal.App.4th at p. 696.)
Regardless, when confronted with the Faretta motion, assuming that defendant made an unequivocal request, the court was obliged to establish that defendant knowingly and voluntarily waived his right to counsel. There are, however, no standard scripts and no particular form of words required to admonish a defendant who seeks self-representation. (People v. Burgener (2009) 46 Cal.4th 231, 241 (Burgener).)" 'Rather, "the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case." [Citations.]' Thus, '[a]s long as the record as a whole shows that the defendant understood the dangers of self-representation, no particular form of warning is required.' [Citations.]" (Ibid.)
"On appeal, we independently examine the entire record to determine whether the defendant knowingly and intelligently waived the right to counsel." (Burgener, supra, 46 Cal.4th at p. 241.) Our review of the record convinces us that the court did not adequately convey the dangers and disadvantages of self-representation to defendant. While the scope of the Faretta advisement depends on the particular facts and circumstances of the case as well as the stage of the proceedings, here, the court gave the defendant only a glimpse of the hazards ahead. (Id. at p. 242.) The court informed him that he would have to question the prosecution's witness, that he would have to follow the court's procedures and would not be given any special privileges, but it did not inform him of the disadvantages of proceeding pro se; that the district attorney would be experienced and prepared, that he would not be entitled to advisory counsel, and he would not be able to claim ineffective assistance of counsel on appeal. (See Burgener, supra, at p. 243.)
It is clear from the record that defendant lacked an understanding of the risks of self-representation. While the fact a defendant does a bad job is not a basis for reversal under Faretta, supra, 422 U.S. at p. 834, fn. 46, we conclude that reversal is appropriate here because the record demonstrates that the court did not obtain a knowing and voluntary waiver of defendant's right to counsel. "The high court has instructed that courts must draw every inference against supposing that the defendant wishes to waive the right to counsel. . . . The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant's conduct and other words." (People v. Marshall, supra, 15 Cal.4th at p. 23.)
Defendant faced a probation revocation hearing, and possible sentencing hearing, if found in violation of his probation. The record indicates that the probation department and his counsel had earlier placed defendant's mental condition at issue and had asked the court to order a psychological evaluation. Defendant also informed the court that he suffered from short- and long-term memory deficits and had facial recognition problems. Despite defendant's deficits, the court implicitly found defendant to have knowingly and intelligently waived his right to counsel.
The courts are divided on whether Faretta error is reversible per se. (See Burgener, supra, 46 Cal.4th at p. 244.) We, however, conclude that the error in granting defendant's Faretta motion was prejudicial even if subject to the harmless error review under Chapman v. California (1967) 386 U.S. 18. Defendant's primary defenses to the alleged probation violation were his memory difficulties and facial recognition problems, yet defendant was unable to present these issues because he lacked the ability to ask questions that were relevant and not subject to hearsay or other objections. And, while the court permitted defendant to mark some documentary evidence for identification purposes, it is unclear from the record whether the court admitted the evidence or considered it. Further, after the court found defendant in violation of probation, his probation officer again urged the court to order a psychological assessment of defendant pursuant to Evidence Code section 1017, subdivision (b) due to defendant's "very severe mental health issues which are likely to be compounded if he is sent to the California Department of Correction[s]." The court did not rule on the request. Finally, after the court found defendant to be in violation of his probation, the court denied his request for advisory counsel prior to sentencing and sentenced him to the aggravated term even though the probation department recommended that he be continued on probation. In light of this record, we conclude that the Faretta error was prejudicial.
The documents included medical records and prescription information, photographs of the scene, and telephone records of his calls to his probation officer and prior attorney.
III. DISPOSITION
Defendant has filed an appeal from the court's order denying his motion for bail pending appeal, Case No. A131995. That appeal has not yet been briefed by the parties. In light of our disposition in the present case, we dismiss defendant's appeal in Case No. A131195 as moot.
RIVERA, J.
We concur:
RUVOLO, P.J.
SEPULVEDA, J.