Opinion
G052041
02-16-2017
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP JON ROSENBLUM, Defendant and Appellant.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Eric A. Swenson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14HF3067) OPINION Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals, Judge. Affirmed. John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found defendant guilty of attempted second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c), 664; count 1) and battery (§ 242, subd. (a); count 2). The court suspended imposition of sentence and placed defendant on three years' formal probation on the condition that he serve 360 days in county jail.
All statutory references are to the Penal Code.
Defendant represented himself at trial. Defendant makes only one contention on appeal: that he was not adequately advised of the risks of self-representation. We affirm.
FACTS
Because defendant's contention pertains solely to the adequacy of his Faretta waiver, we recite only the facts relevant to that issue.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
In connection with moving to represent himself, defendant signed a Farretta waiver form that contained various warnings about the pitfalls of self-representation. The waiver form required defendant to initial after various questions designed to inform him that self-representation was unwise, that he would not be given special treatment, that he would be up against an experienced prosecutor, that he would not be given special privileges while in custody, and that he would forfeit any claim of inadequate assistance of counsel. It also asked him whether he had previously represented himself in a trial. Defendant reported that he had previously represented himself in a preliminary hearing. He further reported that he was aware of the charges and the maximum penalty (though it was not listed on the form), that he had a high school diploma and no emotional/mental illnesses, and that he wished to represent himself because, in a prior trial where he was represented by a public defender, he was found guilty "even though there was overwhelming evidence to display 'actual innocence.'"
The court suggested having an attorney would be "very helpful" in the discovery process and expressed its view that having an attorney "could be a good idea," but defendant disagreed, and the court granted the motion. After a further discussion about discovery in which defendant's lack of experience was evident, the court stated, "I was telling you all along, this isn't a good plan. And these are the kinds of problems that arise. But you have chosen to go this way. [¶] I will still appoint the public defender again, if you would like." Defendant declined.
After the preliminary hearing, now before the judge assigned for trial, the court more thoroughly admonished defendant, stating: "I think it is really a bad idea for somebody to represent themselves because it usually goes bad for you. You are not a lawyer. You are not trained in the law, and I have to treat you as if you are a lawyer. That is what the law requires of me. I don't think that is fair really." "So I have to force you to play by all the rules that I force lawyers to play by, and I know that is difficult, and sometimes it is unfair, but that is what the law requires of me. So I can't help you do anything. I can't give you special consideration, special privileges or anything else . . . ." "On the other hand, I fully recognize that you have every right to do it if you really think it is in your best interest. I am not going to try to convince you otherwise. I am just going to tell you based upon 37 years of experience of watching people try who are not trained in the law, it is pretty hard, and I have to require that you act like a lawyer and follow all the rules even though I know you have not had any formal training, which I don't think is particularly fair, but that is what the law says." After the jury found defendant guilty, counsel was reappointed at defendant's request to assist with sentencing.
DISCUSSION
"The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be 'informed of the nature and cause of the accusation,' who must be 'confronted with the witnesses against him,' and who must be accorded 'compulsory process for obtaining witnesses in his favor.' Although not stated in the Amendment in so many words, the right to self-representation — to make one's own defense personally — is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails." (Faretta v. California (1975) 422 U.S. 806, 819-820, fn. omitted.) "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 requirements for a valid waiver of the right to counsel are (1) a determination that the accused is competent to waive the right, i.e., he or she has the mental capacity to understand the nature and object of the proceedings against him or her; and (2) a finding that the waiver is knowing and voluntary, i.e., the accused understands the significance and consequences of the decision and makes it without coercion." (People v. Koontz (2002) 27 Cal.4th 1041, 1069-1070 (Koontz).) "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." (Id. at p. 1070.) However, courts 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.)
Having reviewed the record, we conclude defendant's waiver was valid. We begin with the Faretta waiver form, which, as defendant admits, contains warnings and inquiries covering most of the suggested content mentioned above. Defendant contends, however, the form was inadequate because the court did not discuss most of the warnings with defendant prior to accepting his waiver of counsel.
However, defendant cites no authority requiring the court to orally advise a defendant of the contents of a Faretta waiver form. He relies on People v. Silfa (2001) 88 Cal.App.4th 1311, 1322, where the court stated, "The Los Angeles Superior Court Faretta form must be seen as no more than a means by which the judge and the defendant seeking self-representation may have a meaningful dialogue concerning the dangers and responsibilities of self-representation. It is not, as we have indicated, ante, a test the defendant must pass in order to achieve self-representation. The advisements in the form also serve to warn the defendant of the complexities of the task about to be undertaken. They may not be used to disqualify individuals who do not understand each nuance of the complex subject matter presented." But that case does not help defendant. There, the trial court had denied defendant's request for self-representation on the ground that defendant would not act as a competent attorney. (Id. at p. 1321.) The appellate court reversed, finding the warnings given to defendant were adequate. (Id. at pp. 1323-1324.) Its comment above was not a critique of the efficacy of a Faretta waiver form to give warnings. To the contrary, the court suggested the form effectively provided the required warnings. Rather, its comments explained the function of the form — to warn.
People v. Miranda (2015) 236 Cal.App.4th 978 is on point. There, the trial court took a Faretta waiver and "relied primarily on the waiver form [the defendant] signed, and engaged in only perfunctory questioning before finding that his waiver was knowing, intelligent, and voluntary." (Id. at p. 986.) The court found no error, stating, "While it is preferable to question a defendant about his responses to a written waiver form, the failure to do so does not necessarily invalidate a waiver where there is no indication the defendant did not understand what he was reading and signing." (Ibid.) So too, here, the trial court engaged in perfunctory questioning that, at minimum, communicated the court's view that defendant was making a mistake. "This was not a case where the trial court relied solely on the waiver form." (Ibid.)
Turning to the broader record, defendant's answers on the Faretta waiver form demonstrate his ability to comprehend what he read. Defendant wrote out answers to some of the questions in the form, and the answers are both legible and logical. Remarkably, one of defendant's written answers criticized the form because it failed to inquire about his prior legal experience, which, in fact, is a suggested topic of conversation mentioned in Koontz, supra, 27 Cal.4th at page 1071, and which is omitted on the form (though it did specifically ask if he had represented himself in a jury trial). Probably in response to that criticism, the trial court asked defendant about his prior legal experience. Defendant answered that he had conducted his own preliminary hearing in the past.
Looking to the preliminary hearing, the record indicates defendant is an intelligent person with unusual competence compared to most pro se litigants. In remarking on defendant's performance during the preliminary examination, the court lauded defendant's abilities: "I will tell you on the record that you're doing better than any pro per I've ever dealt with before and a lot of district attorneys. So go ahead. You're doing a good job with what you have to work on." At another point, the court remarked, "I could tell you had experience." And later stated, "You've made your point, and you've argued your case very well." Thus the overall record demonstrates defendant was sufficiently intelligent to appreciate the warnings on the Faretta waiver form.
Next, defendant argues we should find the Faretta waiver invalid because the court did not discuss the maximum penalty with defendant prior to taking the waiver. California authorities are mixed on whether such an advisement is required. (People v. Harbolt (1988) 206 Cal.App.3d 140, 149 ["Neither the United States Supreme Court nor any California case we have reviewed requires the trial court to specifically advise a defendant seeking to represent himself of the penal consequences"]; contra People v. Sullivan (2007) 151 Cal.App.4th 524, 545 ["'In order to deem a defendant's Faretta waiver knowing and intelligent,' the trial court 'must insure that he understands 1) the nature of the charges against him, 2) the possible penalties, and 3) the "dangers and disadvantages of self-representation"']; People v. Jackio (2015) 236 Cal.App.4th 445, 454-455 ["the most reasonable solution consistent with case law and the United States Constitution is to require the trial court to advise a defendant desiring to represent himself at trial of the maximum punishment that could be imposed if the defendant is found guilty of the crimes, with enhancements, alleged at the time the defendant moves to represent himself"].) The Ninth Circuit requires a defendant to be informed of his maximum penalty unless the entire record demonstrates a knowing and intelligent waiver notwithstanding the lack of an express statement of the maximum penalty. (U.S. v. Robinson (9th Cir. 1990) 913 F.2d 712, 714-715.)
Assuming such a requirement exists, the failure to inform defendant of his maximum punishment at the time of the Faretta waiver was harmless under any standard of prejudice. After the preliminary hearing, but before trial, defendant was expressly informed of the maximum penalty of 15 years in state prison. When the court asked defendant if that was correct by his calculation, defendant responded, "[T]here is a strike prior from 15 years ago and I am stuck with a five-year prior prison enhancement. So pretty much your estimate is ballpark." He proceeded to trial in propria persona. On appeal, defendant argues this was not harmless because it occurred after the preliminary hearing where he testified and made admissions that would later be used against him at trial. But there is nothing in the record to suggest defendant's response to being warned of his maximum punishment would have been any different prior to the preliminary hearing. If defendant felt comfortable going to trial in propria persona knowing the maximum penalty was 15 years, a fortiori he would be willing to do a preliminary hearing knowing the same. Nothing in the record undermines that obvious inference.
Defendant also argues he did not make a knowing waiver due to his bipolar diagnosis. However, there is no evidence he was diagnosed as bipolar until after the trial. --------
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.