Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of the County of Los Angeles No. BA309047, Anne H. Egerton, Judge.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, Eric J. Kohn, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
While on probation in another case, defendant and appellant Walter Govan (defendant) was arrested and charged in a new case with possession for sale of a controlled substance, resulting in a preliminary revocation of his probation in the other case. Prior to trial, defendant, who was represented by appointed counsel in both cases, moved the trial court for permission to proceed in pro. per., and the trial court granted that motion. On the day of trial in the new case, the trial court held a formal hearing on the probation violation in the other case, found that defendant had violated the terms of his probation in that case, sentenced him to four years, and dismissed the new case.
On appeal, defendant argues that, in ruling on the probation violation, the trial court violated his Sixth Amendment right to counsel. According to defendant, the Farretta waiver form he signed applied only to the new case, not the probation revocation proceedings in the earlier case. Therefore, defendant argues that he did not knowingly and intelligently waive his right to counsel as to the probation revocation proceedings.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
We hold that the record shows that defendant intended to and did waive his right to counsel in both cases. Accordingly, we affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
On September 19, 2006, in case number BA309047 (the first case), defendant pleaded guilty to sale or transportation of a controlled substance in violation of Health and Safety Code section 11352, subdivision (a). The trial court suspended imposition of sentence and placed defendant on three years formal probation. Among other probation conditions, the trial court ordered defendant “not use or possess any narcotics” and to “obey all law....”
On June 3, 2006, defendant appeared in court on a new case, number BA341463 (the second case). The trial court indicated that defendant also had a probation violation in the first case. The trial court appointed defendant counsel in both cases, set the second case for a preliminary hearing on June 13, 2008, and set the first case for a hearing on the probation violation on that same date. The trial court revoked defendant’s probation because of his arrest and ordered defendant held in custody without bail.
On June 13, 2008, the trial court held the preliminary hearing in the second case. Defendant, who was represented by counsel, was held to answer in the second case on counts 1 and 2, which alleged violations of Health and Safety Code section 11352, subdivision (a) and of Health and Safety Code section 11351, respectively. The trial court set arraignment in the second case for June 27, 2008, and ordered that the probation violation in the first case would trail the second case.
On July 15, 2008, defendant appeared in court on both cases represented by counsel. His attorney advised the court that defendant was seeking an order allowing defendant to proceed in pro. per. Defendant executed and submitted an advisement and waiver of counsel form under Faretta, supra, 422 U.S. 806, and the following exchange took place between defendant and the trial court: “[Court]: Your attorney advised the court you’re seeking to represent yourself? [¶] [Defendant]: Yes, ma’am. [¶] [Court]: You’re sure that’s what you want to do? [¶] [Defendant] Yes, ma’am. [¶] [Court]: Did you go over that [Farretta waiver] form and initial and sign all the boxes? [¶] [Defendant]: Yes, ma’am. [¶] [Court]: Have you ever represented yourself before in a lawsuit? [¶] [Defendant]: No, ma’am. [¶] [Court]: And how are you planning to handle the 402’s in the case? [¶] [Defendant]: I guess through the library procedures. [¶] [Court]: Do you know what a 402 is? [¶] [Defendant]: I haven’t heard of a 402 yet. [¶] [Court]: How are you planning to handle voir dire? [¶] [Defendant]: Excuse me? [¶] [Court]: How are you planning to handle the voir dire in the case? [¶] [Defendant]: I don’t know about that, but I will learn very quickly. [¶] [Court]: Mr. Govan, you realize you’re going to be up against an experienced layer [sic] on the other side. [¶] [Defendant]: Yes, ma’am. [¶] [Court]: And they’re going to know what voir dire is and what 402’s are and they’re going to know all that stuff? [¶] [Defendant]: Yes, ma’am. As long as I got access to the law library, I’ll figure it out.” Following that exchange, the trial court relieved defendant’s appointed counsel, approved “$40 from pro. per. funds as well as supplies,” and indicated that it would also appoint an investigator to assist defendant. The trial court concluded by stating, “[The] [p]robation violation matter [will] be handled currently [sic] with the open case.”
Following the July 15, 2008 hearing, defendant filed in the first case a handwritten “motion to vacate probation violation” which requested that the trial court set a hearing on the motion for July 25, 2008. Defendant included a signature block for “Walter Govan In Pro Per.” On August 1, 2008, defendant filed a handwritten “supplemental memorandum of points and authorities in support of 1538.5 motion” in the second case in which he also included a signature block for “Walter Govan In Pro Per.”
On Friday, August 22, 2008, defendant appeared in both the first and second cases and answered ready for trial. The trial court continued the matter for trial to Monday, August 25, 2008, noting that defendant’s motion to suppress in the second case and his motion to vacate the probation violation in the first case were pending determination.
When it continued the trial in the second case to August 25, the trial court informed defendant that his “case [was] going to start on the 60th day, which [was] the last day it [could] start.”
On August 25, 2008, defendant appeared for trial in the second case and for the probation revocation hearing in the first case. The trial court indicated that because of the overlapping issues and witnesses on the suppression motion and the probation violation, it would hear evidence on both matters at the same time. After the trial court explained to defendant the manner in which evidence would be taken on both matters, defendant responded, “Okay, I understand.” The prosecutor then called two of the officers involved in defendant’s arrest in the second case to testify as to both the suppression motion and the probation violation. Defendant cross-examined both officers. After hearing argument from defendant on the suppression motion, the trial court denied that motion.
The trial court then proceeded to defendant’s motion to vacate the probation violation in the first case and indicated that its tentative ruling was to deny that motion. Defendant responded, “Apparently, your honor, my defense has appeared to be totally defenseless so, I mean, I have no idea what I could say at this moment, but go back and study some more and just be ready for a speedy trial.” The trial court denied defendant’s motion to vacate the probation violation in the first case and proceeded to the merits of the probation violation. Defendant objected to proceeding on that matter, stating, “The only thing I would have to say on that is basically I would object to a hearing for probation violation until my speedy trial is over, because I still haven’t been convicted and tried [in the second case].” After explaining to defendant that the trial court could hear and determine the probation violation matter before any trial in the second case, and do so without a jury, the trial court found that defendant had violated probation in the first case. Based on that violation, the trial court permanently revoked probation in the first case, lifted the stay on imposition of sentence, imposed a middle term sentence of four years, and, on the prosecutor’s motion, dismissed the second case.
DISCUSSION
Defendant contends that although he intended to waive his right to counsel and represent himself in connection with the jury trial in the second case, he did not intend to waive his right to counsel in the probation revocation proceedings in the first case. According to defendant, because the waiver form he signed applied only to the proceedings relating to trial in the second case, there is no evidence that he was ever specifically advised of the disadvantages and risks of representing himself in connection with the probation revocation proceedings in the first case.
“‘A criminal defendant has a right, under the Sixth Amendment to the federal Constitution, to conduct his own defense, provided that he knowingly and intelligently waives his Sixth Amendment right to the assistance of counsel. (Faretta, supra, 422 U.S. at pp. 835–836; People v. Bradford (1997) 15 Cal.4th 1229, 1363 [65 Cal.Rptr.2d 145, 939 P.2d 259].) A defendant seeking to represent himself “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ [Citation].” (Faretta, supra, 422 U.S. at p. 835.) “No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation.” (People v. Koontz (2002) 27 Cal.4th 1041, 1070 [119 Cal.Rptr.2d 859, 46 P.3d 335].) 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.” (Ibid.; accord, People v. Lawley (2002) 27 Cal.4th 102, 140 [115 Cal.Rptr.2d 614, 38 P.3d 461]; People v. Marshall (1997) 15 Cal.4th 1, 24 [61 Cal.Rptr.2d 84, 931 P.2d 262].)’ (People v. Blair (2005) 36 Cal.4th 686, 708 [31 Cal.Rptr.3d 485, 115 P.3d 1145].) 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.’ (People v. Pinholster (1992) 1 Cal.4th 865, 928–929 [4 Cal.Rptr.2d 765, 824 P.2d 571]; accord, U.S. v. Lopez-Osuna (9th Cir. 2001) 242 F.3d 1191, 1199 [‘the focus should be on what the defendant understood, rather than on what the court said or understood’].) [¶] On appeal, we independently examine the entire record to determine whether the defendant knowingly and intelligently waived the right to counsel. (People v. Doolin (2009) 45 Cal.4th 390, 453 [87 Cal.Rptr.3d 209, 198 P.3d 11].)” (People v. Burgener (2009) 46 Cal.4th 231, 240-)
The right to counsel applies at all stages of the criminal process in which the substantial rights of a defendant may be affected. (Mempa v. Rhay (1967) 389 U.S. 128, 134.) The right to counsel extends to sentencing, “even when it is accomplished as part of a subsequent probation revocation proceeding.” (Gagnon v. Scarpelli (1973) 411 U.S. 778, 781; People v. Vickers (1972) 8 Cal.3d 451, 461-462.)
After a review of the record as a whole, we conclude that defendant knowingly and intelligently waived his right to counsel as to both the proceedings relating to trial in the second case and the probation violation in the first case. On June 3, 2008, defendant was appointed counsel and he was represented in both cases through the July 15, 2008, hearing. At the July 15 hearing, defendant requested permission to represent himself. But he made no attempt to distinguish between the proceedings relating to the trial in the second case and those relating to the probation violation in the first case. Although the Farretta waiver form defendant submitted bore only the case number for the second case, the trial court did not expressly limit its comments about defendant’s request for self-representation to that case. Moreover, when the trial court relieved appointed counsel, it did not limit that order to the second case; nor did defendant request that appointed counsel be relieved only as to the trial proceedings in the second case. And, at the close of the July 15 hearing, the trial court advised defendant that the probation violation matter would be handled “currently” with the second case. Defendant did not request a clarification or otherwise give any indication on the record that he did not understand that the two cases would be determined during a single proceeding.
From the context, we assume the trial court stated that the two matters would be handled “concurrently.”
Shortly after he received permission to represent himself, defendant filed a motion to vacate the probation violation in the first case, which motion indicated he was proceeding in that matter in pro. per. Similarly, he filed a motion to suppress in the second case, which motion also indicated he was proceeding in that matter in pro. per.
At the August 25, 2008, hearing, when the trial court indicated and explained that it intended to take evidence on the motion to suppress and the probation violation at the same time, defendant did not protest and instead acknowledged that he understood the manner in which the trial court intended to proceed. And, although defendant did object to proceeding on the probation violation prior to the trial in the second case, he did so on the ground that he had a right to a speedy trial, not on the ground he had a right to counsel in the probation revocation proceeding.
When the entire record is viewed in context, it is apparent that defendant intended to waive his right to counsel in both matters. He was aware at the time he requested permission to represent himself and submitted the Faretta waiver form that only one attorney represented him in both matters. Once his counsel was relieved, he proceeded actively to represent himself in both matters, a telling indication of his intent at the time he waived his right to counsel. The record is devoid of any indication of a contrary intent, thus supporting the conclusion that defendant knowingly and intelligently waived his right to counsel in both matters. Accordingly, defendant’s right to counsel was not violated in connection with the probation revocation and sentencing proceedings in the first case.
Defendant’s reliance on People v. Hall (1990) 218 Cal.App.3d 1102, is misplaced. In that case, the defendant requested permission to represent himself which request, after extensive waivers and advisements, including a proper Faretta warning, the trial court granted. (Id. at p. 1104.) The defendant was subsequently convicted by a jury of violating Health and Safety Code section 11355. (Ibid.) The trial court suspended imposition of sentence and placed the defendant on three years probation. (Ibid.) Two years later, as the result of a civil injunction against him obtained by a former girl friend, the defendant was found to be in violation of his probation and sentenced to four years in state prison based on his conviction in the earlier case. (Ibid.) The defendant represented himself throughout the probation revocation and sentencing proceedings. (Ibid.)
The Court of Appeal in People v. Hall, supra, 218 Cal.App.3d 1102, reversed the revocation of probation and the sentence, holding that, “The record before us does not establish that defendant knowingly and voluntarily waived the right to counsel or that he was advised of the disadvantages of self-representation at the revocation/sentencing hearing. (Footnote omitted.) In the face of a silent record and the above cited authorities, we have no choice but to find error. Before a criminal defendant may represent himself or herself at a deferred sentencing hearing, a Faretta hearing must be held on the record to advise the defendant of the disadvantages of not being represented by counsel and to establish a knowing and intelligent waiver of the right to counsel.” (Id. at p. 1106.)
In this case, unlike People v. Hall, supra, 218 Cal.Ap.3d 1102, the probation revocation proceedings were pending before the trial court at the time defendant requested permission to represent himself. Thus, instead of the silent record that was before the court in Hall, we have a record that, when read as a whole, shows that defendant knew he was requesting the right to represent himself, not only at the trial of the second case, but also with respect to the probation revocation proceedings in the first case. Because defendant’s request to proceed in pro per was knowingly and intelligently made, the revocation of his probation and sentence in the first case is affirmed.
DISPOSITION
The trial court’s finding of a probation violation and imposition of sentence in case number BA309047 is affirmed.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.