Opinion
B294079
06-29-2020
THE PEOPLE, Plaintiff and Respondent, v. SCOT ERIC PINKERTON, Defendant and Appellant.
Alan E. Spears, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael C. Keller and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA072278) APPEAL from a judgment of the Superior Court of Los Angeles County, Charles Chung and Daviann L. Mitchell, Judges. Reversed. Alan E. Spears, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael C. Keller and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Scot Eric Pinkerton represented himself during the preliminary stages of criminal proceedings in which he was charged with possessing a controlled substance in prison. The trial court terminated defendant's self-representation after defendant refused to appear for a pretrial hearing. Defendant was represented by counsel during all subsequent proceedings, including his jury trial, at which he was found guilty, and his sentencing, at which the court imposed a term of 11 years and various fines and fees.
Defendant contends the trial court erred in terminating his self-representation without warning after his single absence from court. We agree and accordingly reverse defendant's conviction. Defendant's arguments regarding People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and the fines and fees the trial court imposed are moot.
BACKGROUND
The underlying facts of defendant's offense and much of the procedural history of the case are not material to our resolution of the issues presented in his appeal. We accordingly provide only a brief summary of the facts of the offense as adduced at trial and omit discussion of irrelevant procedural history.
I. Underlying Offense
On August 27, 2017, defendant was incarcerated at the California State Prison, Los Angeles County. He was on duty that day as an inmate porter responsible for cleaning the non-contact visitation area. Correctional officers Omar Diaz and Darin Coker were supervising the non-contact visitation area; Diaz was inside the area at a podium, and Coker was monitoring remotely using cameras.
Coker observed inmate James Thomas visiting with a female visitor in a non-contact booth. Coker became suspicious when he noticed Thomas repeatedly looking behind him and "paying quite a bit of attention to what was going on beyond his view of the visitor," and the visitor repeatedly "looking down at her lap" and "fiddling with her lap area." Coker saw the visitor get up from her chair in an "odd" manner; shortly thereafter, defendant approached the non-contact booth and began cleaning it. Coker saw defendant reach for the visitor's chair and subsequently handle his cleaning rag with a "pretty wide grip."
Coker called Diaz and instructed him to order an unclothed body search of defendant. Before defendant left the visiting area for the search, he placed his cleaning rag behind a computer monitor on Diaz's observation podium, outside of Diaz's view. Coker advised Diaz that defendant left the rag, which Diaz searched and found to contain two latex-wrapped bindles. It was stipulated that the bindles contained marijuana and heroin. Codefendant Thomas testified on defendant's behalf that defendant was not involved in his scheme to smuggle contraband into the prison.
II. Relevant Pre-Trial Proceedings
At some point in late 2017 or early 2018, a felony criminal complaint was filed against defendant, Thomas, and Thomas's visitor. The complaint charged defendant with two counts of unauthorized possession of a controlled substance in a state prison. (Pen. Code, § 4573.6, subd. (a).) Defendant appeared at the January 30, 2018 preliminary hearing in propria persona. At the conclusion of the hearing, at which defendant was held to answer on both charges, the trial court, Judge Christopher Estes, advised defendant that it was going to "have a dialog with [him] about pro per," at the next hearing, because it liked to "revisit that issue . . . at every stage after a preliminary hearing."
The visitor, Tori Diggins, resolved her case prior to the preliminary hearing. On the first day of his and defendant's joint jury trial, Thomas pled no contest to one count of conspiracy to commit unauthorized possession of a controlled substance in a state prison (Pen. Code, §§ 182, subd. (a)(1), 4573.6, subd. (a).)
All further statutory references are to the Penal Code unless otherwise indicated.
On February 14, 2018, an information was filed charging defendant with two counts of unauthorized possession of a controlled substance in state prison (§ 4573.6) and alleging several prior strikes (§§ 667, subds. (b)-(j), 1170.12) and prison priors (§ 667.5, subd. (d)). Defendant completed a written Faretta waiver of his right to counsel in advance of an arraignment hearing held that same day.
Faretta v. California (1975) 422 U.S. 806, 807, 819 holds that the Sixth Amendment of the United States Constitution gives a defendant the right to self-representation.
At the arraignment hearing, Judge Estes answered defendant's questions about self-representation and orally advised him of the potential drawbacks associated with self-representation before accepting his Faretta waiver. The court cautioned defendant that "at some point a judge [could] decide[ ] you can no longer proceed in pro per," but did not provide any further information about what circumstances might lead a judge to make such a decision.
On March 21, 2018, defendant appeared for a pretrial hearing in pro per. Codefendant Thomas was a refusal; the court, Judge Estes, did not comment on Thomas's refusal to appear aside from ordering him to appear for the next hearing on April 3, 2018. Defendant filed a section 995 motion to set aside the information, which the court scheduled for hearing on April 3. The court addressed defendant's discovery concerns and granted his request for appointment of an investigator. At the conclusion of the hearing, defendant moved to recuse Judge Estes pursuant to Code of Civil Procedure section 170.6. The matter was transferred to Judge Charles Chung.
Judge Chung presided over the April 3, 2018 hearing. Defendant appeared in pro per, and codefendant Thomas again refused to come to court. Regarding Thomas's absence, Judge Chung stated, "Mr. Pinkerton, I will just put this case over one week because I can't really call your case without Mr. Thomas and he is refusing to come out. We will go ahead and trail your case one week and make it April the 10th. . . . Thank you. We will see you then."
Both defendant and codefendant Thomas refused to appear for the pretrial hearing scheduled for April 10, 2018. The appellate record contains a "general chrono" prepared by a correctional officer documenting the refusals; the trial court accepted this document as a court exhibit. The chrono states: "On Tuesday, 04/10/2018, at approximately 0700 hours, while performing my duties as Transportation Officer #13, I made contact with inmate Pinkerton in the Facility "C" program office. I informed Pinkerton that I would be transporting him to the Michael D. Antonovich Superior Court for court proceedings. Pinkerton then asked if inmate Thomas. . . would also be appearing in court today. It should be noted that Thomas and Pinkerton are co-defendants on [sic] the same case. I informed Pinkerton that Thomas had once again refused to attend court as scheduled by the presiding Judge. Pinkerton replied and stated, 'I refuse to sit in court all day. Thomas has not been in court the last two times and the court proceedings will not continue without him.' I then asked Pinkerton are you refusing to appear in Court, Pinkerton replied and stated, 'I refuse, and I don't want to go if Thomas is not going to be there.'"
After reviewing the chrono, Judge Chung stated: "Based on his refusal to come to court the court will note the following: We are in a special circumstance murder trial. We have been trying to call Pinkerton and Thomas before we start our special circumstances murder trial. Because Pinkerton and Thomas refused to come to court, we are now delayed on our trial. We have jurors waiting. [¶] I find that Mr. Pinkerton's actions have detrimentally affected the core operation of this courtroom. And that because of his actions I believe that any future jury trial would also be jeopardized, the orderly running of that. [¶] Based on that I find good cause to revoke Mr. Pinkerton's pro per status. The 995 is off calendar." The court appointed counsel for defendant. He remained represented throughout the remainder of the proceedings, over which Judges Frank Tavelman, Lisa Chung, and, ultimately, Daviann Mitchell presided.
III. Trial and Sentencing
Defendant proceeded to jury trial on a second amended information alleging a single count of unauthorized possession of a controlled substance in a state prison (§ 4573.6, subd. (a)), five prior strike convictions (§§ 667, subds. (b)-(j), 1170.12), and three prison priors (§ 667.5, subd. (d).). Based on the facts summarized above, which were supported by surveillance video, the jury returned a guilty verdict. The trial court subsequently found true the strike and priors allegations. It struck four of the five strike priors pursuant to section 1385 before sentencing defendant to a total of 11 years: the high term of four years, doubled due to the remaining strike, plus three additional one-year terms pursuant to section 667.5, subdivision (b).
The trial court imposed a restitution fine of $3,300 (§ 1202.4, subd. (b)), imposed and stayed a "parole revocation post release community supervision/mandatory supervision restitution fine in the same amount" (§ 1202.45), a criminal conviction fee of $30 (Gov. Code, § 70373, subd. (a)), a court security fee of $40 (§ 1465.8, subd. (a)(1)), a crime lab fee of $50 (Health & Saf. Code, § 11372.5) and related penalty assessment and criminal fine surcharge (§ 1465.7), and a drug program fee of $150 (Health & Saf. Code, § 11357, subd. (b)) and related penalty assessments and criminal fine surcharge. The court did not consider defendant's ability to pay before imposing the fines and fees, to which defendant raised no objection.
Defendant timely appealed.
DISCUSSION
A defendant has a federal constitutional right to represent him or herself (Faretta, supra, 422 U.S. at pp. 807, 819), but that right is not unfettered. The government's interest in ensuring the integrity and efficiency of trial may outweigh the defendant's interest in acting as his or her own counsel. (People v. Becerra (2016) 63 Cal.4th 511, 517-518 (Becerra).) To that end, the trial court may terminate a defendant's pro per status if he or she "engages in '"deliberate dilatory or obstructive behavior"' that 'threatens to subvert "the core concept of a trial" [citation] or to compromise the court's ability to conduct a fair trial.'" (Id. at p. 518, quoting People v. Carson (2005) 35 Cal.4th 1, 10 (Carson).)
"Termination of the right of self-representation is a severe sanction and must not be imposed lightly." (Carson, supra, 35 Cal.4th at p. 7.) It should be "a last resort, not a first impulse." (Becerra, supra, 63 Cal.4th at p. 520.) "When determining whether termination is necessary and appropriate, the trial court should consider several factors," including the nature of the misconduct and its impact on the proceedings. (Carson, supra, 25 Cal.4th at p. 10.) "Misconduct that is more removed from the trial proceedings, more subject to rectification or correction, or otherwise less likely to affect the fairness of the trial may not justify complete withdrawal of the defendant's right of self-representation." (Ibid.) "The court should also consider whether the defendant has been warned that particular misconduct will result in termination of in propria persona status," and whether the defendant intended to disrupt or delay the proceedings. (Ibid.) "Not every obstructive act will be so flagrant and inconsistent with the integrity and fairness of the trial that immediate termination is appropriate"; the court's primary consideration should be the likely effect of the misconduct on the trial. (Ibid.)
The trial court must document the "precise misconduct" that led it to terminate a defendant's right to self-representation. (Carson, supra, 35 Cal.4th at p. 11.) "The court should also explain how the misconduct threatened to impair the core integrity of the trial. Did the court also rely on antecedent misconduct and, if so, what and why? . . . Additionally, was the defendant warned such misconduct might forfeit his [or her] Faretta rights? Were other sanctions available? If so, why were they inadequate? In most cases, no one consideration will be dispositive; rather, the totality of the circumstances should inform the court's exercise of its discretion." (Ibid.)
We review the trial court's termination of a defendant's right of self-representation for abuse of discretion. (Becerra, supra, 63 Cal.4th at p. 518.) We "accord due deference to the trial court's assessment of the defendant's motives and sincerity as well as the nature and context of his [or her] misconduct and its impact on the integrity of the trial." (Carson, supra, 35 Cal.4th at p. 12.) However, reversal is required if the record fails to support the order or otherwise does not demonstrate appropriate exercise of discretion; erroneous termination of pro per status is reversible per se. (See Becerra, supra, 63 Cal.4th at pp. 518-520.)
We agree with defendant that the trial court abused its discretion here. Defendant refused to come to court for a single pretrial hearing. This behavior was "subject to rectification or correction." (Carson, supra, 35 Cal.4th at p. 10.) The court did not provide defendant an opportunity to correct the behavior, however. Nor did it warn him that refusing to appear, whether once or on multiple occasions, could result in termination of his pro per status, which to that point defendant had not abused. To the contrary, the record reflects that codefendant Thomas (who was represented by counsel) refused to attend the proceedings multiple times with no apparent consequence. The court simply continued the matter on these occasions; it made no comments or remarks that reasonably could be understood to apprise defendant that he could face termination of his self-representation if he too refused to attend a hearing.
Defendant provided the transporting officer a rational explanation for his refusal to attend, which the court received. Although the court did not conduct any further inquiry into defendant's conduct, there is no indication in the record that defendant acted with the intent to disrupt or delay his trial on this or any other occasion. The court focused primarily on the effect of defendant's refusal to appear on an unrelated matter and "the core operation of this courtroom." This may be a relevant consideration, but the court's primary concern should be the likely "effect of the misconduct" on the trial at hand (Carson, supra, 35 Cal.4th at p. 10), not other, unrelated matters briefly inconvenienced. The court stated a "belie[f] that any future jury trial would also be jeopardized, the orderly running of that," but this belief lacks support in the record. The totality of the circumstances in this case did not warrant the extreme sanction of revoking defendant's pro per status.
The Attorney General argues that defendant's single failure to appear was "a valid ground for terminating his self-representation." It asserts that defendant was "on notice" of his obligation to appear because the proceedings could not continue when codefendant Thomas was absent, and that "the court could not warn him that his failure to appear could result in him losing his pro per status" because he was not present. These arguments are not persuasive. The relevant notice for a defendant is that his or her conduct may result in termination of self-representation, not that his or her proceedings may be delayed when a codefendant is not present. Moreover, the trial court had the opportunity to warn defendant that refusals to attend were inappropriate and could have adverse consequences each time codefendant Thomas was absent. The court did not do so.
The Attorney General next contends defendant was cautioned about his behavior in the written Faretta waiver he signed on February 14, 2018. The Faretta waiver included the following advisory, which defendant initialed: "I understand that I must not act disrespectfully in court. I understand that the Judge may terminate my right to act as my own attorney in the event that I engage in serious misconduct or obstruct the conduct and progress of the trial. I understand that if my right to act as my own attorney is terminated, I may have to be represented by an attorney, appointed by the Judge, who will then take over the case at whatever stage the case may be in." This warning cautions against acting disrespectfully in court and advises that "serious misconduct" or obstruction may result in the termination of pro per status. It does not clearly state that a single refusal to attend court might constitute "serious misconduct" or be considered "obstruction" of the trial, which was months away. The warning states only that termination "may" be a consequence of improper behavior, not that it will be the initial response to a defendant's single refusal to appear. We are not persuaded that the written Faretta waiver alone sufficiently apprised defendant that his self-representation could be terminated if he ever failed to appear for a hearing.
The Attorney General finally points to People v. Kirvin (2014) 231 Cal.App.4th 1507 (Kirvin), in which the appellate court affirmed the trial court's denials of a defendant's requests to represent himself. In Kirvin, the defendant not only refused to come to court, but also twice refused to meet with a mental health expert tasked with assessing his competence. (Kirvin, supra, 231 Cal.App.4th at p. 1512.) The first trial court to preside over the defendant's case and hear his Faretta request concluded that the defendant "was 'playing games,'" and found that his "'actions in refusing to come to court and cooperate with doctors appointed by the court are disruptive, obstreperous, disobedient and disrespectful to the court, and his misconduct and its impact. . . affect the integrity of the trial court.'" (Ibid.) The court also cited the defendant's lack of competency to represent himself as an alternative basis for denying his Faretta request. (Id. at pp. 1512-1513.) The defendant filed a Code of Civil Procedure section 170.6 challenge and renewed his Faretta request when the case was reassigned. (Id. at p. 1513.) That trial court denied the motion "due to (1) Defendant's repeated refusals to come to court and meet with the court-appointed expert and (2) his misconduct in jail (namely, throwing urine and feces)." (Ibid.)
The appellate court affirmed both denials. (Kirvin, supra, 231 Cal.App.4th at p. 1516.) It found that the trial court "did not act beyond the 'bounds of reason' in concluding that Defendant's repeated refusal to come to court or obey court orders to meet with others would seriously threaten the core integrity of the trial." (Ibid.) The appellate court observed that an "in-custody defendant who wishes to represent himself but demonstrates a pattern of refusing to come to court or to leave his cell puts the court on the horns of a dilemma" in which it must weigh the costs of delaying the proceedings against proceeding in the defendant's absence. (Ibid., emphasis added.) The appellate court also rejected the defendant's arguments that the trial court failed to provide him warnings or consider alternative sanctions. It reasoned that "Defendant's refusals were, by their nature, willful and repeated. The second denial followed a first, so Defendant was sufficiently forewarned. Further, the trial court had no alternatives to consider." (Id. at p. 1517, emphasis added.)
We agree with defendant that Kirvin is distinguishable. As we emphasized in the above discussion, the defendant in Kirvin repeatedly refused to attend court proceedings or otherwise cooperate with the trial court. Here, defendant failed to attend a single hearing. There is no evidence that he otherwise refused to cooperate or engaged in a pattern of misbehavior; he complied with the trial court's requests to file formal motions and comported himself appropriately both in those documents and in open court. Defendant's single refusal was willful, but not repeated, and, unlike the defendant in Kirvan, defendant was not adequately "forewarned" of the outcome here.
We do not hold that a single incidence of misconduct can never warrant termination of a defendant's right to self-representation, nor do we condone defendant's refusal to attend the pretrial hearing. We hold only that under the circumstances presented in this case, the trial court abused its discretion by terminating defendant's self-representation. Because such error is reversible per se (Becerra, supra, 63 Cal.4th at p. 520), we need not consider whether defendant was prejudiced. We likewise need not consider defendant's Dueñas arguments relating to the imposition of fees and fines after his conviction.
DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: MANELLA, P. J. WILLHITE, J.