Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F09778
ROBIE, J.
After the court granted his motion for self-representation (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta)), defendant Daniel James Harper was found guilty of first degree robbery, carjacking, kidnapping during the commission of the carjacking, kidnapping for extortion, kidnapping for robbery, kidnapping to commit forcible oral copulation, aggravated mayhem, torture, assault by means of force likely to produce great bodily injury, attempted murder, evading a peace officer, and forcible oral copulation. He was sentenced to life without the possibility of parole with additional determinate and indeterminate terms.
Judge Michael Kenny ruled on the Faretta motion. Judge James Long presided over the trial and sentencing.
On appeal, defendant contends that his waiver of counsel was “induced by misadvice concerning the availability of reinstatement of counsel.” Finding that defendant’s waiver of counsel was not knowing and intelligent because Judge Michael Kenny repeatedly and erroneously told defendant that he had the right to have an attorney reappointed, we must reverse the judgment despite the overwhelming evidence against defendant. Given our holding, we will not address defendant’s other contentions.
FACTUAL AND PROCEDURAL BACKGROUND
On Monday July 11, 2005, Judge Kenny, sitting in home court, addressed defendant’s Faretta request to represent himself. Assistant Public Defender Norman Dawson asked the court to “hear [defendant] out,” but expressed “grave concerns about [defendant] representing himself in a matter of significance.”
The court addressed defendant to “ask [him] a few questions” and “give [him] some paperwork . . . to review as well.” The court then asked defendant whether he understood: he had “the right to be represented by an attorney at all stages of these proceedings”; the People would be “represented by an attorney at all stages of these proceedings”; the Deputy District Attorney in this case, Joseph Chavez, was a “trained prosecutor”; he would be “going up against a trained prosecutor who has vastly more experience in the courtroom than [him] and who is familiar with the laws of criminal procedure and evidence”; he was “going to have to understand those criminal laws and procedure as well as evidence in order to proceed in that courtroom”; if he did not know criminal law, procedure, and evidence, he “w[ould] not be given any benefit”; it was “not a wise choice to represent [himself]”; he was “looking at . . . life without the possibility of parole if [he was] convicted”; the court was not going to help him if he had “problems” during his case; he would be removed if disruptive during the case; he would not be able to claim ineffective assistance of counsel on appeal; he had “a right to an attorney again”; and “that attorney can help [him] throughout this process.” Defendant said he understood each of these statements.
Judge Kenny then told defendant he was “going to give [him] two forms,” defendant should “review these forms” and that “if, in fact, [he] d[i]d want to represent [him]self on this case [he] w[ould] not receive any additional privileges than what [we]re listed on those forms.”
The first form was entitled “Record of Faretta Warnings” and listed the following nine admonishments: (1) “You have the right to be represented by an attorney at all stages of this case and if you cannot afford your own attorney the Court will appoint one to represent you”; (2) “It is generally not a wise choice to represent yourself in a criminal matter”; (3) “Penalties for offense if found guilty are life in prison”; (4) “The Court cannot help you present your case or grant you any special treatment”; (5) “You will be opposed by a trained prosecutor”; (6) “You must comply with all the rules of Criminal Procedure and Evidence, just as an attorney must”; (7) “If you are convicted you cannot appeal base[d] on the claim that you were not competent to represent yourself”; (8) “If you are disruptive you will be removed from the courtroom and an attorney will be brought in to finish your case”; (9) “You have the right at any time to hire your own attorney. However, the Court will not delay your case to allow an attorney to prepare to represent you.” The form was signed by defendant and Judge Kenny.
Deputy District Attorney Chavez stated that if Judge Kenny were to grant the Faretta motion, he would ask the court to appoint advisory counsel.
When asked to comment on the prosecutor’s request, Assistant Public Defender Dawson stated as follows: “Public Defender does not normally do that. We do not handle advisory cases because we are not budgeted for that particular process. Very frankly, my position is that [defendant] needs an attorney as would anyone facing charges of this nature. If [defendant] does at any point wish to have an attorney representing him, again, I’m more than happy to re-accept appointment on the case. However, I would not, um, disagree that it appears as if the charges are of such significance it might be very reasonable to have advisory counsel to assist him.”
Judge Kenny then told defendant to “take some time to go through those forms” and then said the court would continue the case “so [defendant would] have plenty of time to review those forms and make sure [he] understand[s] them.” The judge also asked for a panel attorney to “speak to [defendant], specifically with regard to the issue of self[-]representation.” The court then continued the case for one week so that defendant could “review those forms” and an attorney from the panel could “then talk with [defendant] about the pitfalls and perils of self[-]representation.”
One week later, on Monday July 18, 2005, court reconvened with Judge Kenny, Deputy District Attorney Chavez, Assistant Public Defender Dawson, panel attorney David Muller, and defendant. The court confirmed with defendant that he “had a chance to discuss the consequences of representing [himself] with Mr. Muller,” and then asked defendant whether he would “still like to represent [him]self on this matter.” Defendant replied, “Yes, sir.”
Judge Kenny, defendant, and Assistant Public Defender Dawson then concluded with the following colloquy:
“THE COURT: The court is going to grant your request to represent yourself on this matter. Court has also noted that you have received the record of Far[]etta warnings as well as the Sacramento County inmate pro per in-state status and privileges sheet. Court would also note signed the Far[]etta warnings. Do you understand all those things on there?
“THE DEFENDANT: Yes, sir. I got one question. In one form right there on number eight it says able to subpoena witnesses. How do I go about getting more witnesses?
“THE COURT: What will happen, in representing yourself [an] investigator will be appointed to help you on the matter. [The] [i]nvestigator can at least follow your directions to, with regard to witnesses you think are necessary. Also going to be advisory counsel appointed in the matter. Panel will be appointed for purposes of advisory counsel. You should understand advisory counsel are not generally appointed. Generally if you wish to go pro per, you represent yourself, and you represent yourself in the entirety.
“In this particular case because of the serious consequences you’re looking at, advisory counsel will be appointed, but advisory counsel are simply going to be available to you to answer some legal questions that you may have. They will not be representing you on this case, understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: Do you also understand that you can obtain an attorney at any point in time to represent you. Mr. Dawson could step back into this case as long as you make that request.
“Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: All right. Court is granting your request to go pro per. Public defender is relieved at this point in time.
“MR. DAWSON: Your Honor just for the record, I spoke twice with [defendant] over the course of the week, asked him again to reconsider this position. He thinks the route he wishes to take, my office would be happy to take the case back. The only concern I have, just to let everybody know, I think it’s obvious, since the case is potentially a DNA case, since the case has [i]mmense amounts of evidence involved in it, I would probably need to be brought back at a reasonable time, get up to speed, get DNA attorneys on [b]oard. Other than that, I wish [defendant] would reconsider, but it does not appear that’s going to happen.
“THE COURT: Part of the reason I had the panel talk to you as well as hearing conversations between you and Mr. Dawson is, in fact, this case has very serious consequences to you. You’re going to be against a very skilled and trained prosecutor without the benefit of counsel that could work to your [dis]advantage, understand?
“THE DEFENDANT: Yes, sir.
“THE COURT: You are going to be allowed to go pro per. Keep in mind you can retain an attorney simply by having a request made to this Court. Court would reappoint an attorney to represent you.
“Mr. Dawson’s comments, however, should be kept in mind. This case is significant, has substantial amount of paper associated with it. Therefore any attorney assisting you would need time to come up to speed.”
With defendant now representing himself, the evidentiary portion of the trial began on Wednesday, January 25, 2006, before Judge Long. The deputy district attorney now trying the case was Michael Neves and advisory counsel was Rod Mayorga.
On Thursday, January 26, 2006, during the second day of testimony, defendant asked Judge Long, “Now, am I still able to get an attorney on this case?” Judge Long responded, “No. You’re not. What you can do you know if you wish I think they appointed an advisory lawyer for you, you can see if that person wants to come over. But I’m not going to continue this case for you to get a lawyer -- a lawyer to get up to speed, if that’s what you’re asking me.”
On Monday, January 30, 2006, at the beginning of the day’s proceedings, defendant again broached the topic of reappointing counsel, resulting in following colloquy between defendant and Judge Long:
“DEFENDANT HARPER: Okay. I over the weekend I actually thought more about having an attorney represent me in this case. I mean I know I ain’t representing myself completely to where I should be. It’s my first time ever doing this almost by myself.
“My first trial ever being there at all no matter what happens in my case I always take a deal. This is my first trial in my life.
“I mean I’m not sure what questions to ask. I mean, I understand to where -- what you’re saying last week to all my questions are actually irresponsible at the case. I understand that. I apologize for all those questions I was asking.
“But I still prefer to have an attorney to represent me but if we cannot have -- if we cannot have one to where it’s going to take a month or two to get an attorney to represent me I say going to stick with that plan A. Plan A, me represent myself.
“THE COURT: First of all, let me state in July of last year a Superior Court judge on our bench heard your motion, F[a]retta versus California, that you be allowed to represent yourself, that is to say, you waived the right to counsel and you wished to represent yourself under the laws of the State of California, the laws of the United States.
“You were given advisements in terms of the pitfalls of self-representation, including the admonishment that you would be required to conduct yourself in a lawyer like manner, that is to say, to ask questions in a lawyer like manner and that the Court would not be able to help you at all and at best to give you limited assistance.
“What you are complaining of now really are the -- one of the pitfalls of self-representation in that technically you may or may not have the skills and from a practical -- I mean to conduct your own examination from a practical standpoint you may not have the skills.
“I have chosen and carefully observed you from day one through including today and I find no -- I cannot discern anything by way of a mental incompetence that would preclude you from going forward.
“At the conclusion of the hearing before another Superior Court judge he made the finding that you made a knowing and intelligent waiver of right to counsel and a knowing and intelligent choice to represent yourself.”
DISCUSSION
A criminal defendant has a constitutional right to represent himself at trial if he “‘knowingly and intelligently’ forgo[es] those relinquished benefits” associated with the right to counsel. (Faretta, supra, 422 U.S. at pp. 819, 835 [45 L.Ed.2d at pp. 572, 581].) The defendant “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.’” (Id. at p. 835 [45 L.Ed.2d at pp. 581-582].)
Once the defendant waives his right to counsel, the decision to reappoint counsel is in the trial court’s discretion. (People v. Gallego (1990) 52 Cal.3d 115, 163-164.) In exercising that discretion, the court must consider the totality of facts and circumstances, including the defendant’s history of substituting counsel, the stated reasons for the request to return to representation by counsel, the length and stage of the proceedings, the disruption or delay that reasonably might be expected from granting the motion, and the likelihood of the defendant’s effectiveness in defending against the charges if required to continue to act as his own attorney. (Id. at p. 164.)
On appeal, we review the record de novo to determine whether the defendant’s waiver of counsel was knowing and intelligent. (See People v. Marshall (1997) 15 Cal.4th 1, 24.)
Here, defendant contends his waiver of counsel was “induced by misadvice concerning the availability of reinstatement of counsel,” and therefore was not knowing and intelligent. We agree.
On three occasions, Judge Kenny told defendant that even if he decided to represent himself at trial, he would have the right to have an attorney reappointed if he so requested. The first time occurred on July 11, 2005, when the judge initially addressed defendant about his Faretta motion and asked whether he understood that if he were to represent himself in this matter, he “h[ad] a right to an attorney again.” Defendant replied, “Yes.” The second time occurred one week later, on July 18, 2005, when the judge asked defendant if he “underst[oo]d that [he] c[ould] obtain an attorney at any point in time to represent [him]. Mr. Dawson could step back into this case as long as [defendant] ma[d]e that request.” Defendant replied, “Yes, sir.” The third time occurred that same day after the judge told defendant he would be “allowed to go pro per” and then immediately told him to “[k]eep in mind [he] can retain an attorney simply by having a request made to this Court. Court would reappoint an attorney to represent [him].”
Judge Kenny’s advice was erroneous because the decision to reappoint counsel is not automatic but is subject to the court’s discretion. (See People v. Gallego, supra, 52 Cal.3d at pp. 163-164.) Moreover, the error was not brought to the trial court’s attention either by defense counsel or the prosecutor at a time when it could have been corrected. After Judge Kenny gave the first erroneous advisement on July 11, 2005, Deputy District Attorney Chavez’s response was not to clarify the erroneous advisement, but rather, to ask the court to appoint advisory counsel if the court were to grant defendant’s Faretta motion. When the judge asked Assistant Public Defender Dawson to comment on prosecutor Chavez’s request, Dawson replied, in part, that “[i]f [defendant] does at any point wish to have an attorney representing him, again, I’m more than happy to re-accept appointment on the case.” Similarly, when Judge Kenny gave the second erroneous advisement on July 18, 2005, Assistant Public Defender Dawson’s response was, in part, that his “office would be happy to take the case back.” When the judge gave the third erroneous advisement, Dawson commented only about discovery issues and prosecutor Chavez reiterated his request that defendant be appointed advisory counsel.
Given this record, it comes as no surprise that defendant requested counsel on the second day of trial when he realized he was in over his head, and that Judge Long denied the request in the absence of knowledge of the erroneous waiver and the presence of Deputy District Attorney Chavez and Assistant Public Defender Dawson, who were no longer part of the proceeding.
Despite this record, the People make much of the form defendant signed entitled “Record of Faretta Warnings” and argue that defendant’s waiver of counsel was “knowing and voluntary” because item No. 9 on the form states that “You have the right at any time to hire your own attorney. However, the Court will not delay your case to allow an attorney to prepare to represent you.” The form is of no consequence here because it did not address Judge Kenny’s erroneous advisements that the court would reappoint counsel to represent defendant if he so requested. The form simply addressed defendant’s right to retain counsel and the court’s right to refuse to delay the case so the attorney could prepare to represent the defendant.
As the California Supreme Court has stated, “The test of a valid waiver of counsel is not whether specific warnings or advisements were given but 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.” (People v. Bloom (1989) 48 Cal.3d 1194, 1225.) “[W]e should ‘indulge every reasonable presumption against waiver of fundamental constitutional rights’” and “[d]oubts must be resolved in favor of protecting the constitutional claim.” (Michigan v. Jackson (1986) 475 U.S. 625, 633 [89 L.Ed.2d 631, 640].) Here, as we have explained, the trial court repeatedly told defendant he had the right to have counsel reappointed even if he waived counsel, defendant said he understood that, defense counsel added to that misunderstanding, and the prosecutor never corrected the court or defense counsel’s misadvise or the defendant’s misunderstanding. We therefore cannot say that defendant’s decision to represent himself was “‘made with eyes open.’" (Faretta, supra, 422 U.S. at p. 835 [45 L.Ed.2d at p. 582.) Accordingly, we conclude that defendant’s waiver of counsel was invalid.
We are aware of at least three examples of evidence that could lead to conflicting interpretations of defendant’s understanding of the court’s advice about self-representation.
We turn then to whether we must reverse the judgment automatically or review the record for prejudice.
“If the accused . . . is not represented by Counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a . . . bar to a valid conviction and sentence depriving him of his life or his liberty.” (Johnson v. Zerbst (1938) 304 U.S. 458, 468 [82 L.Ed. 1461, 1468.]) Citing this language, Judge Kozinski, writing for a unanimous court, held that where a defendant “did not effectively waive his right to counsel because the trial court did not give him proper warnings,” the defendant “thus commenced the trial with his right to counsel intact. Because [the defendant] was tried without a lawyer, it follows ineluctably from Supreme Court cases such as Rose [v. Clark (1986) 478 U.S. 570 [92 L.Ed.2d 460]] and Penson [v. Ohio (1988) 488 U.S. 75, 102 L.Ed.2d 300]] that his trial was infected by structural error, and the Appellate Division was wrong when it concluded the error was harmless.” (Cordova v. Baca (9th Cir. 2003) 346 F.3d 924, 926.) In Rose, the court held that denial of the right to counsel is an error that “necessarily render[s] a trial fundamentally unfair.” (Rose, at p. 577 [92 L.Ed.2d at p. 470].) In Penson, the court emphasized that when a defendant is denied counsel either at trial or on appeal, the error can never be treated as harmless. (Penson, at pp. 88-89 [102 L.Ed.2d at pp. 313-314].) Three years later, the court again explained that the total deprivation of the right to counsel at trial is a structural defect that “def[ies] analysis by ‘harmless-error’ standards. The entire conduct of the trial from beginning to end is obviously affected by the absence of counsel for a criminal defendant . . . .” (Arizona v. Fulminante (1991) 499 U.S. 279, 309-310 [113 L.Ed.2d 302, 331].) Based on these cases, we conclude that because defendant was not represented by counsel at trial and did not knowingly and intelligently waive his right to counsel, we must automatically reverse the judgment against him.
We are aware that the Second Appellate District, Division Five has held that a defective Faretta waiver is subject to harmless error review. (People v. Wilder (1995) 35 Cal.App.4th 489, 496.) We agree, however, with Judge Kozinski that the “reasons [for its holding] are not persuasive” because Wilder ignored “a long line of [United States] Supreme Court cases holding that denial of counsel is structural error” and “conflated harmless error analysis at the waiver colloquy stage with harmless error analysis once the waiver is deemed to be invalid.” (Cordova v. Baca, supra, 346 F.3d at p. 928.)
DISPOSITION
The judgment is reversed.
We concur: DAVIS , Acting P.J.RAYE , J.
The second form was entitled “Sacramento Superior and Municipal Courts Order: County Jail Inmate Pro Per Status and Privileges.” It listed 12 privileges to which defendant was entitled while in jail.
One, the court seemed to confuse the right to retained counsel with the qualified right to appointed counsel if defendant were granted permission to represent himself. The court told defendant he could “obtain an attorney at any point in time to represent [him]” but then stated that Assistant Public Defendant Dawson “could step back into this case as long as [defendant] ma[d]e that request.” The court later told defendant that he could “retain an attorney” by simply making that request to the court and the court would “reappoint an attorney to represent” him.
Two, defendant requested an attorney of Judge Long instead of informing Judge Long of Judge Kenney’s advisement. From this conduct, it could be argued that defendant understood he did not have an unqualified right to have counsel reinstated. However, it also could be argued that defendant was simply following Judge Kenny’s direction that if he wanted Assistant Public Defender Dawson reappointed, he would simply have to “make that request.” (Italics added.)
And three, defendant withdrew his request to have a lawyer after Judge Long told him that the court was not going to continue the case to get a lawyer up to speed. From this conduct, it again could be argued that defendant understood he did not have an unqualified right to have counsel reinstated. However, it also could be argued that defendant was simply acquiescing in the court’s earlier ruling that it would not delay his case for an attorney to get up to speed.
We must interpret this evidence against the waiver of counsel in light of the pronouncement by United States Supreme Court that we “‘indulge every reasonable presumption against waiver of fundamental constitutional rights’” and “[d]oubts must be resolved in favor of protecting the constitutional claim.” (Michigan v. Jackson, supra, 475 U.S. at p. 633 [89 L.Ed.2d at p. 640].)
We also note that Wilder was decided before People v. Crayton (2002) 28 Cal.4th 346, in which the California Supreme Court noted that “Although a reversible per se rule may apply under California Constitution, article VI, section 13, when a defendant erroneously is denied the right to counsel or never has knowingly or voluntarily waived that right (see People v. Cahill [1993] 5 Cal.4th 478, 501 [recognizing that ‘in some instances an error may result in a “miscarriage of justice” within the meaning of the California provision’ without a showing of actual prejudice]), we agree with the Court of Appeal that the Watson standard applies to the superior court’s error in failing to follow the statutory command that the court, at the arraignment in superior court, readvise a defendant of his or her right to counsel and obtain a renewed waiver of that right.” (Crayton, at p. 364.)