Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Santa Barbara Super. Ct. No. 1207965.
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N. Sokoler, Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
GILBERT, P.J.
Darryl W. Walden appeals an order revoking his probation and imposing a three-year prison term. He contends the trial court violated his right of self-representation. (Faretta v. California (1975) 422 U.S. 806.) We affirm.
FACTS
Officer Richard Yee of the Santa Barbara Police Department was on duty on June 11, 2006. At approximately 10:00 p.m., Yee witnessed a group of waiters chasing after Walden and shouting, "Stop." The waiters told Yee that Walden had stolen a bottle of wine from their restaurant.
Yee identified himself as a police officer and told Walden to stop. When Walden failed to stop, Yee chased after him. Yee grabbed Walden's arms and placed him under arrest. As Yee was placing Walden's arms behind his back, a bottle of wine fell to the ground and broke.
Walden was charged with felony theft with a prior (Pen. Code, § 666) and violation of probation. Initially, Walden was represented by the public defender. Walden's attorney agreed to have the preliminary hearing and violation of probation hearing at the same time. When Walden's case was called for the hearing, Walden made a motion to represent himself pursuant to Faretta.
All statutory references are to the Penal Code.
The trial court in giving Walden Faretta warnings stated, "Do you understand that because you would be representing yourself you wouldn't be having any continuance, we'd go ahead with the hearing today[.]" Walden replied, "Absolutely."
Officer Yee testified at the hearing. Walden asked Yee if Walden was intoxicated at the time of his arrest. Yee said that Walden "definitely had been drinking." The court asked Yee if Walden had been intoxicated to the point of being in violation of section 647, subdivision (f), the statute prohibiting public intoxication. Yee answered that Walden was not intoxicated to that extent. The court then asked Walden what difference would it make if he was intoxicated. Walden replied that he was not aware of anything until he awoke at the police department. The court asked if it would be a defense if Walden was unconscious. The prosecutor replied, "I think we've established that he wasn't."
Walden asked Yee to state the reasons Yee felt Walden was not sufficiently intoxicated to be in violation of section 647, subdivision (f). After Yee stated the reasons, the court said, "All right. Well, so there we are. You'll have a chance to testify if you want after. Although, usually at this stage of the proceedings attorneys don't have their clients testify because they usually end up shooting themselves down. So, but you can cross-examine a little more, but he has indicated what his conclusion is based on."
After the hearing, the trial court found Walden in violation of probation and imposed a three-year prison sentence. The trial court thereafter granted the prosecution's motion to dismiss the current felony theft charges.
DISCUSSION
Walden contends he was effectively denied his right of self-representation. He claims the trial court interfered with his tactical control over his case by incorrectly advising him that he was not entitled to a continuance, that the defense of voluntary intoxication required a showing of public intoxication pursuant to section 647, subdivision (f), and that he could be subject to self-incrimination at a later trial if he testified at the violation of probation hearing.
Walden relies on McKaskle v. Wiggins (1984) 465 U.S. 168. There the defendant, charged with robbery, successfully made a motion to defend himself. The court appointed two "standby counsel" to assist. Wiggins requested that counsel not be allowed to interfere with his presentations in court. Nevertheless, counsel frequently explained to the trial court their views and points of disagreement with the defendant, made motions, dictated proposed strategies into the record, made objections, urged the summoning of additional witnesses, and suggested questions the defendant should have asked. Wiggins complained that his right to represent himself was impaired by the unsolicited participation of counsel.
The Supreme Court refused to place an absolute bar on standby counsel's unsolicited participation. (McKaskle v. Wiggins, supra, 465 U.S. at p. 176.) The court, however, placed two limits on the extent of counsel's unsolicited participation: "First, the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury. This is the core of the Faretta right. If standby counsel's participation over the defendant's objection effectively allows counsel to make or substantially interfere with any significant tactical decisions, or to control the questioning of witnesses, or to speak instead of the defendant on any matter of importance, the Faretta right is eroded. [¶] Second, participation by standby counsel without the defendant's consent should not be allowed to destroy the jury's perception that the defendant is representing himself." (Id. at p. 178, fn. omitted.)
Walden's reliance on McKaskle is misplaced. McKaskle applies only to unsolicited interference by standby counsel. It does not apply to the trial court. Obviously, rulings by the trial court will frequently interfere with the defendant's control over the case he chooses to present. That the trial court's rulings may be in error does not deny the defendant the right to represent himself.
Here Walden did not request a continuance. When the trial court advised Walden he would not be getting a continuance, Walden made no protest. There is nothing in the record to show Walden needed or even wanted a continuance. To the contrary, when the trial court advised Walden he would not be getting a continuance, Walden replied, "Absolutely."
The trial court told Walden that "usually at this stage of the proceedings attorneys don't have their clients testify because they usually end up shooting themselves down." Walden characterizes the statement as advice that whatever he says can be used against him at trial. Walden points out that a defendant testifying at a violation of probation hearing has limited immunity. (Citing People v. Coleman (1975) 13 Cal.3d 867, 889.) Walden's statements could be used against him at a later trial for felony petty theft only for the purposes of impeachment or rebuttal. (Ibid.)
But the trial court's statement did not deprive Walden of the right to represent himself. The trial court made it abundantly clear that Walden had the right to testify. The choice was his. Moreover, Walden presents no authority for the proposition that the trial court's statement as to what attorneys would usually do is incorrect. At the time of the hearing, Walden faced a trial for felony theft. Even if his testimony at the probation hearing could only be used for impeachment or rebuttal, the possibility of such use can affect a defendant's decision whether to testify at trial. Many attorneys might well decide not to risk having the defendant testify.
Walden argues the trial court's question of Officer Yee about Walden's level of intoxication would lead a lay person to believe intoxication is not a defense unless he was intoxicated to the point of violating section 647, subdivision (f).
But Walden cites no authority for the proposition that asking a question violates his right of self-representation. A pro se defendant must accept any unsolicited help or hindrance that may come from the judge who chooses to call and question witnesses. (McKaskle v. Wiggins, supra, 465 U.S. at p. 178, fn. 9.)
Here the trial court was simply trying to gage Walden's level of intoxication. Whatever Walden might read into such a question, his right to self-representation was not affected. Similarly it did not affect Walden's right of self-representation when the trial court asked what difference would it make if Walden was intoxicated and would it be a defense if Walden was unconscious.
Finally Walden claims the trial court erred in failing to provide ancillary services. But Walden did not request such services. Walden cites no authority for the proposition that the court has a sua sponte duty to provide ancillary services.
We granted Walden's motion to file a supplementary brief. It appears the brief attempts to raise discriminatory prosecution as an issue. The argument is based on allegations for which no evidence was presented in the trial court. Matters outside the record are not reviewable. (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, § 142, p. 390.) Walden claims he was prevented from presenting the evidence when the trial court denied him a continuance. But Walden did not request a continuance or inform the trial court he needed time to gather evidence.
The judgment (order) is affirmed.
We concur: COFFEE, J., PERREN, J. Brian E. Hill, Judge.