Opinion
E066316
10-12-2017
THE PEOPLE, Plaintiff and Respondent, v. ALFREDO HERNANDEZ SOSA, JR., Defendant and Appellant.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal and Kristen Ramirez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1502014) OPINION APPEAL from the Superior Court of Riverside County. Randall Donald White, Judge. Reversed. Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant, Alfredo Hernandez Sosa, Jr., of assault with a deadly weapon (count 1; Pen. Code, § 245, subd. (a)(1)) and vandalism (count 2; § 594, subd. (a)(2), (3)). Thereafter, defendant admitted allegations he had suffered two prior strike convictions (§§ 667, subds. (c), (e)(1), 1170.12, subd. (e)(1)), two prior serious felonies (§ 667, subd. (a)), and two prior prison terms (§ 667.5, subd. (b)). The court sentenced defendant to 35 years of incarceration. The court stayed imposition of sentence on the prior prison term enhancements.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends the court erred in denying his request to represent himself. (Faretta v. California (1975) 422 U.S. 806 (Faretta).) The judgment is reversed.
I. PROCDEURAL HISTORY
The facts of the offenses for which the jury convicted defendant are not relevant to the issues raised on appeal. (People v. Boulware (1993) 20 Cal.App.4th 1753, 1755.)
On December 10, 2015, the date originally set for the preliminary hearing, defendant's counsel indicated he was unprepared to proceed. Defendant, however, was willing to waive his right to adequate representation in order to ensure his right to a speedy preliminary hearing. The court then inquired of defendant regarding the matter.
After stating that he understood why defense counsel was unprepared to proceed with the preliminary hearing, defendant asked "for another counsel. I would like to change lawyers. I feel that there is a conflict between me and my current counsel."
The court then held a Marsden hearing. Defendant stated he "would like another attorney, your Honor, please, preferably . . . state appointed[]" "[b]ecasue I feel there is a conflict of interest between me and my current counsel. I feel that he is not going to represent me adequately. Earlier he was laughing, and I asked him if he thought that it was funny. He told me he did think it was funny. So I feel he is not taking this seriously. I would like another counsel."
People v. Marsden (1970) 2 Cal.3d 118 (Marsden ).
The court informed defendant that his counsel was experienced and competent; the court denied defendant's request. The court asked if defendant had anything further to say; defendant responded that he "would still like to make a request. I would like to have that granted, your Honor, because we are already off on a wrong foot, me and my attorney, so I am not going to feel that he is representing me to the best that he can." The court again noted it was denying defendant's request.
Defendant then queried whether "I have the right to represent myself . . . ?" The court responded that "case law does not provide for a counsel to be appointed simply because you have some little disagreement." Defendant stated: "And that's unfortunate." Defendant declared: "I would like to file for pro per persona [sic]." The court responded that defendant would have to fill out documents and ask permission of the court to do so.
Defendant's counsel asked to be given an opportunity to confer with defendant and come to a mutual understanding about the case. The court indicated a willingness to provide such an opportunity; however, defendant stated: "I don't wish to discuss anything further with my current counsel. I would like to file for propria persona."
After the court attempted to convince defendant to speak with his attorney, defendant reiterated: "I do not wish to speak to him, your Honor. I do not wish to speak to him. I wish to go [in] propria persona. I wish I had adequate counsel, but you did not grant me that motion. You did not grant me—you said it is not—it is not—that I can't switch attorneys. I am okay. Then I would rather go [in] propria persona."
The court indicated that was not defendant's choice. Defendant asked whose choice it was. After the court realized it could not persuade defendant to speak with his attorney, the court noted again that defendant would have to file documents in order to represent himself.
Apparently, after having completed some self-representation documentation, the court began going over defendant's rights. The court warned defendant of the dangers of self-representation. Defendant asked about those dangers. The court began querying defendant about the level of his education. The court asked defendant if he knew anything about trial, courtroom procedures, the Penal Code, or the Evidence Code. Defendant responded that he did not.
The document is not a part of the record on appeal.
Defendant then stated: "Like I said earlier, your Honor, my wish was to have another counsel, but you denied it, so I feel this is the best thing for me." The court further queried defendant regarding his competence to represent himself.
Defendant indicated there were several things he did not understand regarding the prior conviction allegations. The court asked if defendant still wanted to represent himself. Defendant stated: "I am—I feel like I am forced to, your Honor." The court observed: "No one is forcing you to do anything." Defendant responded: "No one is forcing me to, but I have no other alternative I feel like. But what I wanted was to change counsel so that can't happen. So I feel this is best."
The court continued warning defendant about the hazards of representing oneself. When defendant admitted that he did not know the rules by which lawyers would have to abide and that he would have to learn them by studying books, the court noted: "This is the date and time set for the preliminary hearing today." "How are you going to learn those before we proceed to preliminary hearing?" Defendant responded: "I was thinking maybe after the preliminary hearing."
The court continued to issue defendant warnings regarding self-representation, noting he would not receive help, would be opposed by an experienced professional, would not have special privileges, and would not "have a staff of investigators." Defendant asked: "I will not have a staff of investigators?" The court responded: "That's correct." Defendant asked: "So how will I conduct my investigation, your Honor?" Defendant noted: "I was under the impression that I was able to get a hold of a private investigator. It says it on the first line or something like that."
Presumably, this is a reference to the self-representation documentation the court required defendant to fill out before considering his request.
The court continued with warnings asking defendant if he could "carry out the basic tasks needed to present a defense in this case without the help of counsel?" Defendant responded: "As long as I got a private investigator, I can." The court replied: "You put a condition in there. I am asking if you could do that, not if somebody else can." Defendant again noted: "I can with the aid of a private investigator." The court replied: "Let's assume you have no one, it is just you?" Defendant responded: "The question alone seems absurd, your Honor. I am criminally incarcerated with no access to anything except for that computer system that they got in there . . . . But as long as I have a private investigator, I could gather all the evidence that I need to represent myself adequately before a jury." The court denied defendant's request pursuant to People v. Boulware, supra, 20 Cal.App.4th 1753.
II. DISCUSSION
Defendant contends the court erred in denying his request to represent himself. We agree.
"A defendant has a federal constitutional right to the assistance of counsel during all critical stages of a criminal prosecution. [Citations.] A defendant may also waive this right and personally represent him- or herself, so long as the defendant's waiver of the right to counsel is valid. A valid waiver requires that the defendant possess the mental capacity to comprehend the nature and object of the proceedings against him or her, and that the defendant waive the right knowingly and voluntarily. [Citation.] If a defendant has validly waived the right to counsel, a trial court must grant a defendant's request for self-representation. [Citation.]" (People v. Mickel (2016) 2 Cal.5th 181, 205.)
Nonetheless, a defendant's request for self-representation must be unequivocal. (People v. Marshall (1997) 15 Cal.4th 1, 20-21; People v. Welch (1999) 20 Cal.4th 701, 729.) A Faretta motion made immediately after the denial of a Marsden motion may suggest the Faretta request was equivocally made because the defendant only wanted to rid himself of appointed counsel. (People v. Scott (2001) 91 Cal.App.4th 1197, 1205; People v. Marshall, supra, at pp. 26-27.) Thus, "[a] motion for self-representation made in passing anger or frustration, an ambivalent motion . . . may be denied." (People v. Marshall, supra, at p. 23; People v. Stanley (2006) 39 Cal.4th 913, 932; People v. Watts (2009) 173 Cal.App.4th 621, 629.) The fact that a defendant never again made a request to represent himself may also be considered as relevant to whether the Faretta motion was unequivocal or made in emotional haste. (People v. Stanley, supra, at p. 933; People v. Tena (2007) 156 Cal.App.4th 598, 610.) Courts must "'indulge every reasonable inference against waiver of the right to counsel.' [Citation]" (People v. Stanley, supra, at p. 933, quoting People v. Marshall, supra, at p. 20.)
"On appeal, a reviewing court independently examines the entire record to determine whether the defendant knowingly and intelligently invoked his right to self-representation. [Citation.]" (People v. Doolin (2009) 45 Cal.4th 390, 453.) "'[W]e review the trial court's order, not its reasoning, and affirm an order if it is correct on any theory apparent from the record.' [Citation.]" (City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153, 1164, fn. 3.) Thus, even where the court denies the request on an improper basis, "if the record as a whole establishes defendant's request was nonetheless properly denied on other grounds, we would uphold the trial court's ruling." (People v. Dent (2003) 30 Cal.4th 213, 218.)
In the first instance, the court erroneously denied defendant's motion based on the reasoning in People v. Boulware, supra, 20 Cal.App.4th 1753. In Boulware, the court granted the defendant's request to represent himself prior to the date scheduled for the preliminary hearing. On the day of the preliminary hearing, the defendant requested that counsel once again be appointed for him. The court asked if the defendant was willing to continue the preliminary hearing so that any counsel appointed could prepare. Defendant responded that he would not waive time for the preliminary hearing. The court denied the defendant's request for counsel at the preliminary hearing, but appointed counsel for the defendant after he was held to answer. Counsel represented the defendant during the subsequent trial. (Id. at p. 1755.)
After a jury convicted the defendant he appealed, contending that the court denied his right to counsel at the preliminary hearing. (People v. Boulware, supra, 20 Cal.App.4th at p. 1756.) The court held that whether a defendant has a right to change the status of his representation at the last minute, such as on the day of the preliminary hearing, without any advance notice, rests in the sound discretion of the trial court. Thus, the trial court acted within it discretion in denying the defendant's last minute request. (Ibid.)
Here, defendant's request to represent himself was not untimely. Although it was made on the date set for the preliminary hearing and defendant initially refused to waive time to continue the hearing, defendant later appeared to agree to continue the matter when he noted his intention of representing himself had changed to "maybe after the preliminary hearing." Moreover, the court did not hold the preliminary hearing that day, but continued it upon defense counsel's motion. In fact, the court subsequently continued the matter twice The preliminary hearing which was originally scheduled for December 10, 2015, the date defendant requested to represent himself, did not actually occur until January 8, 2016. Thus, unlike Boulware, if the court had granted defendant's request, it would not have delayed any proceedings which would have occurred on that day.
Nevertheless, regardless of the trial court's reasoning, we must uphold the ruling if it was proper on any other ground. Here, there were some indications that defendant's request to represent himself was equivocal. It was made immediately after the court denied his Marsden request. Moreover, although defendant expressed a desire to represent himself, he repeatedly asserted that what he really wanted was newly appointed counsel; that the only reason he was requesting to represent himself was because the court denied his Marsden motion. Thus, defendant's Faretta request could appear to have been made, at least in part, due to momentary frustration or anger with the court's ruling. Furthermore, defendant never again renewed his Faretta motion.
On the other hand, the California Supreme Court has held that "[t]here is nothing equivocal in a request that counsel be removed and, if not removed, that the defendant wants to represent himself. Once the court has decided not to remove counsel, the defendant has the choice of going ahead with existing counsel or representing himself. There is nothing improper in putting the defendant to this choice, so long as the court did not err in refusing to remove counsel. [Citations.] If, under these circumstances, the defendant elects to represent himself, he need not show that he would make the same decision if offered other counsel." (People v. Michaels (2002) 28 Cal.4th 486, 524.) "Moreover, even if an initial request for self-representation is equivocal, the trial court is not required to deny it without further inquiry. Here the trial court discussed the perils of self-representation with defendant, and in that discussion defendant made it unequivocally clear that he wanted to represent himself." (Ibid.)
Here, defendant made it "unequivocally clear" that if the court would not provide him different counsel, he wished to represent himself. Defendant stated: "I wish to go [in] propria persona. I wish I had adequate counsel, but you did not grant me that motion. You did not grant me—you said it is not—it is not—that I can't switch attorneys. I am okay. Then I would rather go [in] propria persona." Defendant then filed the requisite documents in order to represent himself. Defendant reiterated: "Like I said earlier, your Honor, my wish was to have another counsel, but you denied it, so I feel this is the best thing for me." This would appear to be a quintessential, conditional, rather than equivocal, request to represent oneself. (People v. Michaels, supra, 28 Cal.4th at p. 524.)
Indeed, even after the court later informed defendant that he would not be provided investigators, defendant continued to assert his request to represent himself. Defendant referenced the documents he was required to complete which reflected that he would be provided an investigator: "I was under the impression that I was able to get a hold of a private investigator. It says it on the first line or something like that." Defendant then thrice indicated he was able and willing to represent himself so long as he was provided an investigator. Thus, defendant's request to represent himself was conditional, not equivocal.
However, the court continually, erroneously conveyed to defendant the impression that he would not receive any outside help with his case if he chose to represent himself. Depriving a self-represented defendant of all means of presenting a defense violates the right of self-representation. (People v. Jenkins (2000) 22 Cal.4th 900, 1040, citing Milton v. Morris (9th Cir. 1985) 767 F.2d 1443, 1445-1446.) Thus, "a defendant who is representing himself or herself may not be placed in the position of presenting a defense without access to a telephone, law library, runner, investigator, advisory counsel, or any other means of developing a defense . . . ." (People v. Jenkins, supra, at p. 1040; People v. Dale (1978) 78 Cal.App.3d 722, 727-729 [court appointed two investigators to help a defendant whom it granted pro. per. status]; People v. Burnett (1999) 71 Cal.App.4th 151, 156, fn. 2 [court granted pro. per. defendant appointment of paralegal and investigator]; People v. Faxel (1979) 91 Cal.App.3d 327, 329-331 [pro. per. defendant entitled to appointment of state compensated investigator or runner upon a showing of need]; People v. Carson (2005) 35 Cal.4th 1, 13 [court appointed investigators to aid pro. per. defendant]; People v. Moore (2011) 51 Cal.4th 1104, 1121 [court appointed advisory counsel, investigator, and legal runner to assist pro. per. defendant].)
Thus, the trial court's statement that defendant would have to assume that he would not receive any help in preparing his case could have convinced him that making a further unequivocal request for self-representation would have foreclosed any ability for him to adequately represent himself should the request be granted. (People v. Dent, supra, 30 Cal.4th at p. 219 [court denial of Faretta motion reversed when, "even assuming defendant's request was equivocal, the trial court's response effectively prevented defendant from making his invocation unequivocal."].) Therefore, the court erroneously denied defendant's Faretta motion.
However, the denial of a Faretta motion has been held to be subject to a harmless error determination in certain circumstances. In People v. Rogers (1995) 37 Cal.App.4th 1053, the court held that the "erroneous denial of an untimely Faretta motion is reviewed under the harmless error test of People v. Watson (1956) 46 Cal.2d 818 . . . . [Citation.]" (Id. at p. 1058.) However, here, unlike in Rogers, as discussed above, defendant's Faretta motion was not untimely. Moreover, as part of its harmless error analysis, the Rogers court noted that counsel was able to obtain an acquittal on two of the offenses with which the defendant was charged and a conviction on the lesser included offense on a third charge. (People v. Rogers, supra, at p. 1058.) Here, defendant was convicted of every offense with which he was charged. Thus, Rogers is distinguishable.
In People v. Tena, supra, 156 Cal.App.4th 598, the court held "that the right of self-representation confined to the preliminary hearing is subject to harmless error analysis pursuant to Chapman." (Id. at p. 615 ["Chapman analysis is appropriate when, as here, the defendant undergoes a trial represented by counsel of his choice."].) However, in Tena, the court denied both defendant's Faretta and Marsden motions when, during the latter, the defendant sought a continuance so that a private attorney could present the witnesses the defendant desired. (People v. Tena, supra, at p. 609.) Thereafter, the defendant retained a private attorney who represented him at trial. (Ibid.) Here, defendant made no mention of hiring a private attorney and went to trial with the very counsel whom he had sought to replace. Here, since defendant knowingly and intelligently made a timely request to represent himself after being apprised of the dangers of self-representation, and there is no evidence that he was incompetent, the error in denying the request is reversible per se. (People v. Boyce (2014) 59 Cal.4th 672, 702.)
Chapman v. California (1967) 386 U.S. 18.
III. DISPOSITION
Since we have reversed the judgment, it is unnecessary to address defendant's claim the court erred in staying, rather than striking, punishment on the prior prison term enhancements. --------
The judgment is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. FIELDS
J.