Opinion
G055694
09-04-2019
THE PEOPLE, Plaintiff and Respondent, v. EDWARD BARTHOLOMEW MONE, Defendant and Appellant.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15HF0639) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary M. Pohlson, Judge; and Kazuharu Makino, Judge (retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.). Reversed. Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Edward Bartholomew Mone pleaded guilty to aggravated assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4); count 1) and false imprisonment by force (§§ 236, 237, subd. (a); count 2). He admitted a serious and violent prior conviction (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)) and two prison priors (§ 667.5, subd. (b)). The court suspended imposition of sentence and placed defendant on five years of formal probation with various conditions, including one year in custody. About one and one-half years later, defendant was arrested and probation was revoked. The court sentenced defendant to the low term of two years in state prison on count 1, and imposed the low term of 16 months on count 2, but stayed execution of sentence on that count pursuant to section 654. The court imposed two additional years for the two prison priors, for a total prison term of four years.
All statutory references are to the Penal Code.
The court did not address the prior serious felony. Neither party raises that as an issue on appeal.
The issue in this appeal is whether the court erred in permitting defendant to represent himself at the probation violation hearing and the subsequent sentencing hearing. We conclude defendant was given inadequate warnings under Faretta v. California (1975) 422 U.S. 806 (Faretta) and reverse the judgment.
FACTS
Defendant committed the underlying offense in June 2015, when he saw a woman walking her dogs in a park. She grew nervous at his disheveled appearance and walked away. As he followed, she began to run, and he began to chase her. He caught up with her, grabbed her in a bear hug from behind, and slammed her to the ground. He punched her in the back of the head and held her down by force.
Multiple bystanders approached and yelled at him to leave her alone, and that the police were on their way. After commenting that "women are dangerous; a security threat," and identifying himself as a Marine, he walked away.
A responding police officer noticed defendant nearby and contacted him. Defendant explained he was a United States Marine hired by President Obama to patrol the neighborhood for suspicious suspects. He accused the victim of committing elder abuse and breaking into homes, commenting, "I put her down like a bitch in the neighborhood." Defendant was dirty, stinky, and wearing worn clothing. The officer surmised he was homeless.
Defendant was taken to jail where he began making sexually suggestive remarks to a female deputy. At one point, he had to be restrained from grabbing her breast, and later he lunged at her as if to sexually assault her. Back in his jail cell, as a female officer attempted to have him sign paperwork, he exposed his penis and began masturbating.
After defendant pleaded guilty, in statements included in the probation report, defendant and his wife explained that defendant suffers from bipolar disorder, and that his criminal activity is a product of manic episodes.
Roughly one and one-half years into his probation, defendant was arrested for domestic violence. During an argument with his girlfriend (who is apparently a different person than his wife), he threw her on the bed, and later slapped her face. Defendant was convicted of misdemeanor battery.
At the first hearing on the petition to revoke probation, defendant asked to represent himself. In connection with that request, defendant filled out and submitted a Faretta waiver form. The three-page form begins by asking whether the defendant has considered a series of numbered propositions. After each proposition, there is a line calling for a yes or no answer, and another line for the defendant to initial.
The first proposition is that it is unwise to represent oneself, as one may conduct a defense that ends up helping the prosecution. In response to this, defendant responded, "No." The second and third propositions state that the defendant will be expected to follow the same rules as attorneys, and the prosecutor is an experienced attorney who will not go easy. In response to both of these, where the line calls for a yes or no answer, defendant wrote, "Understood." The fourth and fifth propositions are that defendant will receive no special privileges in custody, and will forfeit any appellate arguments concerning ineffective assistance of counsel. In response to both of those propositions, defendant wrote, "Yes." The sixth proposition is that if defendant were to change his mind midtrial, he may not be given a continuance to secure counsel. In response, defendant wrote, "No." The seventh and final proposition is that counsel may be appointed for defendant if he misbehaves during trial, to which defendant responded, "Yes."
The form then transitions to asking discrete questions. In response to whether he had ever represented himself in a jury trial, defendant answered, "No." The next question states, "You are charged with __________. Have you considered possible defenses?" On the blank line, defendant wrote the word "violation," and answered the question, "Yes." Next, "Do you know the maximum penalty in the event you are convicted?" Answer: "No." Later the form asks, "Have you been treated for any emotional/mental illnesses?" Answer: "No."
The form then asks for feedback about the form itself. Defendant checked a box indicating he understood the form, but provided the following commentary: "It's a very unprofessional legal form." "Questions 1-5 are confusing questions that only give you a yes/no option. Questions should be worded much better. Horrible waiver for[m] from a legal standpoint."
Finally, the form asks why the defendant wants to represent himself. Defendant answered, "I have had my public defender lie to me." "The public defender has given me bad advice." "My public defender has failed to state my case to the judge in front of me and the public. This is my 4th different time in court 3 different days. I served a full sentence in L.A. County. This is where I was authorized to live."
The court granted defendant's request to represent himself. The court did not ask any follow-up questions regarding defendant's answers on the form.
At the hearing on the probation violation, the People offered two bases for revoking probation: first, defendant's recent conviction on the domestic violence incident; second, defendant's failure to provide the probation department with a current address, as evidenced by his most recent booking sheet, in which defendant provided a different address from that on file.
Defendant took the stand on his own behalf and attempted to convince the court that his domestic violence conviction was a result of having a bad public defender, and that he was not at fault. Unpersuaded, the court found defendant in violation of his probation based on the domestic violence conviction and set a sentencing hearing.
At the sentencing hearing, defendant expressed he was appalled at the negative tone of the probation report and its failure to emphasize his excellent compliance with probation prior to the domestic violence incident. The court replied, "Well, this could be a good reason why it's not very wise to represent yourself." "Cause you have no lawyer who can go to probation and" ask for additions or deletions. At that point, defendant asked to retain a lawyer, recognizing he or she would be "more of an expert in the courtroom, and I'm not." The public defender, however, having never reviewed defendant's case, informed him that he would ask for a continuance, which defendant did not want. Accordingly, the court permitted defendant to, once again, represent himself. The court did not administer any further Faretta admonitions.
The court proceeded to inform defendant that his maximum prison exposure was 6 years 8 months. It asked defendant, "You understand that?" Defendant responded, "I don't understand that, and I was told before by the district attorney 'three years,' verbatim." The court disagreed, explaining that "a probation violation with these charges and allegations, you can get up to six years, eight months as a sentence." Defendant replied, "There is no charges. It's—it is one misdemeanor charge." In response, the court offered defendant a continuance to prepare further, which defendant declined.
At the outset of the sentencing hearing, defendant stated, "I'd just like to remind the court of what I'm here for. I'm here for a misdemeanor probation violation for a misdemeanor battery with no . . . injury." The court then interrupted defendant: "Can I interrupt you here? Because it's obvious you don't understand what sentencing you're here for." Defendant: "Yes. Yes. Sir. Right." The Court: "Your sentencing here for 245, 236 with two state prison priors—felony. That's what the sentencing is on here; okay?" Defendant: "I understand that, your honor." Defendant went on to argue that his misdemeanor violation was still relevant because that is what initiated his most recent police contact, and he made the case for his innocence.
Ultimately, the court sentenced defendant to the low term of two years on count 1, and imposed the low term of 16 months on count 2, but stayed execution of sentence on that count pursuant to section 654. The court added two additional years for the two prison priors. The court commented, "[T]here obviously is some mental health problem that's driving this defendant's offenses." Afterward, defendant asked for a continuance of sentencing to obtain counsel, which the court refused. Defendant appealed.
DISCUSSION
For a defendant to validly waive the right to counsel, two distinct conditions must be satisfied: the defendant must be mentally competent to make the decision, and the waiver of counsel must be knowing and voluntary. (Godinez v. Moran (1993) 509 U.S. 389, 400 (Godinez).) Here, defendant contends neither condition was satisfied. Broadly speaking, he contends his demonstrated mental illness rendered him incompetent, and that his confusion in connection with the Faretta waiver and subsequent sentencing demonstrated he did not waive the right to counsel knowingly. We disagree with defendant's first contention: he was mentally competent to choose self-representation. However, we agree with defendant's second contention: he did not do so knowingly.
In Faretta, supra, 422 U.S. 806, the United States Supreme Court established a criminal defendant's constitutional right to self-representation. (Id. at p. 821.) The high court did, however, recognize the pitfalls associated with self-representation, and thus placed conditions on that right: "When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must 'knowingly and intelligently' forgo those relinquished benefits. [Citations.] Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he 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.)
The Faretta court, however, did not confront the thorny problem of whether a mentally ill defendant can waive the right to counsel. That issue was first addressed by the Supreme Court in Godinez, supra, 509 U.S. 389. There, the defendant had killed several people and then attempted suicide. He waived his right to counsel and pleaded guilty. (Id. at pp. 391-392.) The Ninth Circuit Court of Appeals had reversed the ensuing death penalty conviction (id. at p. 402), reasoning that the competency standard to waive the right to counsel is higher than the competency standard for standing trial (id. at p. 398). The Godinez court disagreed, concluding the standards are the same. (Id. at p. 399.) It reasoned, "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." (Ibid.) In response to the criticism that conducting a trial imposes a heavier mental burden, the court demurred: "this argument has a flawed premise; the 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." (Ibid.) The rule that emerged from Godinez is that the competence to waive counsel is the same standard of competence required to stand trial under Dusky v. United States (1960) 362 U.S. 402: the defendant must have "'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding,'" and "'a rational as well as factual understanding of the proceedings against him.'" (Godinez, at pp. 396, 399.)
The Supreme Court backtracked from Godinez in Indiana v. Edwards (2008) 554 U.S. 164 (Edwards). There, the defendant had initially been found incompetent to stand trial (id. at p. 167), but later was found competent (id. at p. 168). He asked to represent himself, but the court refused the request, finding that, notwithstanding his competence to stand trial, he was not competent to represent himself. Accordingly, the court appointed counsel, and defendant was later convicted. (Id. at pp. 168-169.) The Edwards court affirmed, reasoning, despite its Godinez decision, that the mental functioning required to conduct a trial is higher than to simply assist counsel, which "cautions against the use of a single mental competency standard . . . ." (Edwards, at p. 175.) It concluded, "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." (Id. at p. 178.)
Edwards did not overrule Godinez, however, but instead distinguished it on the ground that, in Godinez, the defendant simply wanted to plead guilty rather than conduct a full trial. (Edwards, supra, 554 U.S. at p. 173.) Also, because the defendant in Godinez was permitted to represent himself, the question was simply whether the Constitution permits a state to grant self-representation. In Edwards, where the state imposed counsel, the question was whether the Constitution permits a state to impose counsel. (Ibid.)
After Edwards, the California Supreme Court considered whether to accept the Edwards court's invitation to establish a different mental competency standard for waiving counsel. (People v. Johnson (2012) 53 Cal.4th 519.) The Johnson court noted that, pre-Faretta, there was no right to self-representation in California. (Id. at p. 526.) Based on that history, the court concluded "that trial courts may deny self-representation in those cases where Edwards permits such denial." (Id. at p. 528.) The court considered various formulations of a more specific test, but ultimately declined to enshrine any of them. (Id. at pp. 529-530.) Instead, the Johnson court hewed close to the language in Edwards: "pending further guidance from the high court, we believe the standard that trial courts considering exercising their discretion to deny self-representation should apply is simply whether the defendant suffers from a severe mental illness to the point where he or she cannot carry out the basic tasks needed to present the defense without the help of counsel." (Id. at p. 530.)
Although the Johnson court did not provide a more specific rule, it did provide courts some guidance in applying Edwards. "A trial court need not routinely inquire into the mental competence of a defendant seeking self-representation. It needs to do so only if it is considering denying self-representation due to doubts about the defendant's mental competence." (People v. Johnson, supra, 53 Cal.4th at p. 530.) "To minimize the risk of improperly denying self-representation to a competent defendant, 'trial courts should be cautious about making an incompetence finding without benefit of an expert evaluation, though the judge's own observations of the defendant's in-court behavior will also provide key support for an incompetence finding and should be expressly placed on the record.'" (Id. at pp. 530-531.) "Trial courts must apply this standard cautiously. The Edwards court specifically declined to overrule Faretta, supra, 422 U.S. 806. [Citation.] Criminal defendants still generally have a Sixth Amendment right to represent themselves. Self-representation by defendants who wish it and validly waive counsel remains the norm and may not be denied lightly. A court may not deny self-representation merely because it believes the matter could be tried more efficiently, or even more fairly, with attorneys on both sides. Rather, it may deny self-representation only in those situations where Edwards permits it." (Id. at p. 531.)
With that standard in mind, we have little trouble concluding that the court acted within its discretion in determining that defendant was mentally competent to make the choice to represent himself. While it is clear defendant had a mental breakdown in 2015 at the time of his original offense, there was nothing in the record to suggest he was mentally incompetent in 2017 at the probation violation hearing. In his various appearances in court, he spoke rationally and professionally. His answers to the questions on the Faretta waiver form were generally rational responses. And while he would go on to express confusion at points regarding the charges at issue and the potential punishment, that confusion did not indicate a severe mental illness that would prevent him from carrying out the basic tasks required to present a defense. Given that the trial court need not routinely inquire into a defendant's mental competence, and that it must be cautious in denying self-representation, the court acted properly.
Having been found mentally competent to make the choice to represent himself, we turn now to the second condition for a valid waiver of counsel: knowing and voluntary. "The purpose of the 'knowing and voluntary' inquiry . . . is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced." (Godinez, supra, 509 U.S. at p. 401, fn. 12.)
"No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation; 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." (People v. Koontz (2002) 27 Cal.4th 1041, 1070.) Courts nevertheless have suggested certain considerations that ought to be discussed with the defendant: that self-representation is unwise and usually detrimental; that defendant will not receive special treatment by the court and will be expected to abide by all procedural and evidentiary rules; that the prosecutor will be a trained professional; that defendant will not be given additional library privileges or time to prepare; and that defendant will be waiving appellate claims of ineffective assistance of counsel. (Id. at p. 1070-1071.) Courts have also suggested "that trial judges inquire into the defendant's education and familiarity with legal procedures, suggesting a psychiatric examination in questionable cases." (Id. at p. 1071.) Courts have "further suggested probing the defendant's understanding of the alternative to self-representation, i.e., the right to counsel, including court-appointed counsel at no cost to the defendant, and exploring the nature of the proceedings, potential defenses and potential punishments." (Id. at p. 1071.) "On appeal, we examine de novo the whole record—not merely the transcript of the hearing on the Faretta motion itself—to determine the validity of the defendant's waiver of the right to counsel." (Id. at p. 1070.)
Here, the record demonstrates that defendant's waiver was not a knowing waiver, as required under Faretta. At the very outset, defendant indicated on the waiver form that he had not considered that conducting his own defense is usually unwise, which goes to the core of understanding the disadvantages of self-representation. At the point where the form should have indicated what defendant was charged with, it appears the blank line was not filled in, so defendant filled it in with the ambiguous word "violation," which was correct with respect to the probation violation itself, but demonstrated a potential lack of understanding of the potential consequences of being found in violation of his probation. The ensuing hearings would demonstrate his confusion over the potential consequences of being found in violation of his probation. Indeed, at one point during the sentencing hearing the court remarked that it was "obvious you [defendant] don't understand what sentencing you're here for," a comment which amounts to a factual finding that defendant did not knowingly waive the right to counsel. In response to another question on the form, defendant indicated he had not been treated for mental illness. In light of the information the court had in the probation report that defendant suffered from bipolar disorder, that answer was either plainly false, or at least needed to be explored further. And when asked whether defendant knew the maximum penalty he was facing, he indicated he did not. That confusion would likewise become manifest at the sentencing hearing. The court did not follow up on any of these areas of confusion with defendant.
Authorities are split on whether a defendant must be advised of his maximum penalty as a condition of a valid Faretta waiver. (See People v. Bush (2017) 7 Cal.App.5th 457, 469-474 [discussing decisions and holding advisement of penal consequences is not essential to a valid Faretta waiver]; contra People v. Jackio (2015) 236 Cal.App.4th 445, 454-455 [holding that court must advise the defendant of the maximum punishment if convicted, including enhancements].) "We need not enter the debate whether and to what extent a trial court is required to advise of possible penal consequences, because even if such an advisement is not mandatory, its total absence is certainly a factor to consider in determining whether the defendant's waiver was knowingly made, and in this case we rely on the entire record to conclude that the Faretta waiver was invalid." (People v. Ruffin (2017) 12 Cal.App.5th 536, 544.) --------
In deciding this procedure was inadequate, we find guidance in People v. Ruffin, supra, 12 Cal.App.5th 536. There, on the day of trial, the defendant requested self-representation and signed a Faretta waiver form. (Ruffin, at p. 539.) The court asked the defendant if he signed the form and if he had any questions, but the court did not attempt to ascertain if the defendant had read and understood the form. "The court also failed to inquire about ambiguities in [the defendant's] responses regarding his understanding of the nature of the charges against him." (Ibid.) And it did not inform the defendant of his maximum punishment. (Id. at pp. 539-540.) The court granted defendant's request. (Id. at p. 539.) The Court of Appeal reversed, reasoning, "even when a waiver form is completed, the court's duty remains to ensure that the defendant's waiver of the right to counsel is knowing and voluntary." (Id. at pp. 548-549.)
Likewise, here, the record is inadequate to establish that defendant appreciated the risks attendant to self-representation, the nature of the hearing, or the maximum punishment. Accordingly, the court erred in granting his request for self-representation.
The next question is whether the error is reversible. "[W]hen the record demonstrates that the trial judge neglected to advise the defendant of the dangers and disadvantages of self-representation as required by Faretta when the waiver is taken, but the waiver of the right to counsel was voluntary, the courts have split on the standard of reversible error: some have determined that the error is structural and reversible per se; others have declared the error must be found prejudicial under the Chapman v. California (1967) 386 U.S. 18, 24 [citation] test unless the error is harmless beyond a reasonable doubt." (People v. Sullivan (2007) 151 Cal.App.4th 524, 551, fn. 10.) We need not take a side in that debate, because assuming that an error under Faretta is subject to a harmless error analysis, we do not find the error to be harmless.
The difficulty with a harmless error analysis in this context is that, absent some clear indication in the record, it is entirely speculative to attempt to predict how defendant would have acted had he been properly informed at the time of the Faretta waiver hearing. The closest indication we have in our record is the fact that when defendant received his probation report, he requested counsel, and then waived counsel again because he did not want the delay of a continuance. He was subsequently informed of his maximum punishment, to his shock and dismay, but did not request counsel again.
This sequence of events is insufficient to declare the error harmless. Had defendant been properly advised at the time of the initial Faretta waiver, there would have been no extra delay. His failure to request counsel after being informed of his maximum punishment was likely because he had, literally seconds before, waived counsel due to the attendant delay. Moreover, at no point did the court properly advise defendant about the risks of self-representation. While there is an advisement in the waiver form, defendant specifically indicated he had not considered it, or perhaps he meant he did not understand it, and the court never clarified the issue. Again, we cannot predict how defendant would have acted had he been properly advised.
Nor can we say beyond a reasonable doubt that an attorney would not have made a difference. True, defendant had been convicted of the misdemeanor offense, establishing a violation of probation, and the court proceeded to give defendant the low term. However, unlike a trial on the merits, a probation violation hearing does not solely seek to establish a defendant's guilt or innocence of the alleged violation. Rather, "[i]n determining whether to revoke probation, a trial court must consider whether the convicted offender '"can be safely allowed to return to and remain in society."' [Citation.] The matter rests entirely within the broad discretion of the trial court, whose decision will not be reversed unless it was arbitrary or capricious." (People v. Chandler (1988) 203 Cal.App.3d 782, 788.) So while it may be the case that defendant's violation would be res judicata as a result of his misdemeanor conviction, that does not necessarily mean he would have lost probation. A competent attorney could, theoretically, have persuaded the court that the circumstances of the misdemeanor were such that probation was still in everyone's best interests. (People v. Hayko (1970) 7 Cal.App.3d 604, 610 ["The judge is not determining whether the defendant is guilty or innocent of a crime. Rather, he must determine whether the convicted offender 'can be safely allowed to return to and remain in society'"].) Once again, it would be entirely speculative for us to attempt to predict how that proceeding would have turned out. Accordingly, reviewing the record as a whole, we cannot find the error harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
DISPOSITION
The judgment is reversed.
IKOLA, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.