People v. Whitfield CA5 ( 2015 )


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  • Filed 12/1/15 P. v. Whitfield CA5
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIFTH APPELLATE DISTRICT
    THE PEOPLE,
    F069233
    Plaintiff and Respondent,
    (Super. Ct. No. F14900574)
    v.
    MICHAEL WHITFIELD,                                                                       OPINION
    Defendant and Appellant.
    THE COURT*
    APPEAL from a judgment of the Superior Court of Fresno County. Alan M.
    Simpson, Judge.
    Dawn Schock, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
    General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General,
    for Plaintiff and Respondent.
    -ooOoo-
    *        Before Poochigian, Acting P.J., Detjen, J. and Franson, J.
    Defendant Michael Whitfield was convicted by no contest plea of burglary. On
    appeal, he contends the trial court completely failed to advise him of the dangers of
    representing himself before granting his Faretta1 motion and thus we must reverse and
    remand. The People concede and we agree.
    BACKGROUND
    On January 17, 2014, defendant was charged with burglary (Pen. Code, §§ 459,
    460, subd. (b)) and petty theft with a prior (Pen. Code, § 666). The complaint also
    included various special allegations.
    On January 28, 2014, defendant appeared with defense counsel to withdraw his
    plea. Defendant pled no contest to the burglary count and admitted one prior strike
    conviction allegation and one prior prison term allegation. He filled out and signed a plea
    form on which he noted a five-year lid. After defendant answered the court’s questions
    regarding his plea and the rights he was giving up, the court accepted the plea.
    On February 28, 2014, at the sentencing hearing, defendant requested to represent
    himself, as follows:
    “THE COURT: Is there any legal cause why judgment should not
    now be pronounced?
    “THE DEFENDANT: Yes, it is. I might want to represent myself.
    I’m filling out the paper right now.
    “THE COURT: And the Court has also read and considered a letter
    from [defendant]. [¶] So are you ready to proceed?
    “[DEFENSE COUNSEL]: Your Honor, I’m ready. I don’t know
    if—[defendant] is asking—
    “THE DEFENDANT: They gave me a Faretta Motion. I’m filling it
    out right now for self-representation, if you don’t mind.
    “THE COURT: Well, you’ve represented yourself before.
    1      Faretta v. California (1975) 
    422 U.S. 806
     (Faretta).
    2.
    “THE DEFENDANT: Yes. And also—
    “THE COURT: Okay. That’s fine. You can represent yourself.
    “THE DEFENDANT: Okay. Thank you.
    “THE COURT: Okay. Go ahead.
    “THE DEFENDANT: Do I need to fill this out?
    “THE COURT: No.
    “THE DEFENDANT: Thank you very much. The last—my last
    appearance in court, [defense counsel] informed me that—I can’t remember
    her name. She supposedly came to the jail to assess me for a possible entry
    into either Westcare or Salvation Army, which I tried to get into myself
    before I commenced this crime. They wouldn’t let me in due to the fact
    that I didn’t have no ID which was stolen from me.
    “THE COURT: Yes, I know. You said that in your letter. I read
    your letter.
    “THE DEFENDANT: That’s why I did the crime to get the drugs
    because I am a drug addict. I’ve been so for 30 years. I’m 55 years old.
    I’m tired of drugs. I’m tired of coming before you and anybody else in this
    courtroom. And I need to help myself get off drugs so I can get out of this
    jail, and stay out of jail. And I would highly appreciate it because I have a
    severe record. It’s too long. Yes? I’m sorry, I thought he called my name.
    Anyway, the lady wasn’t able to come assess me because [defense counsel]
    just informed me that they changed me from one floor to another, and she
    missed coming to talk to me to do an assessment. He can verify that. He
    just told me that. And the situation that I got myself into this time and
    other occasions, it was behind drugs. I don’t want to waste the Court’s time
    and resources by playing games saying I’m not guilty when I am guilty.
    That’s why I pled guilty early in my case. If you had a chance to review
    my past history, you will find out that it’s very long.
    “THE COURT: Oh, I’ve seen it. It’s all right here. It goes on for
    pages and pages.
    “THE DEFENDANT: About 20? Close to it?
    “THE COURT: You mean the whole report?
    3.
    “THE DEFENDANT: The whole report. [¶] … [¶] All I can do is
    say thank you for helping me help myself. Because like I said, I’m very
    tired.
    “THE COURT: All right. Is the matter submitted?
    “[PROSECUTOR]: The People submit on the five-year offer from
    the People.
    “THE COURT: All right….”
    At this point, the trial court terminated probation and sentenced defendant to
    five years in prison.
    DISCUSSION
    “A criminal defendant has a right, under the Sixth Amendment to the federal
    Constitution, to conduct his own defense, provided that he knowingly and intelligently
    waives his Sixth Amendment right to the assistance of counsel.” (People v. Blair (2005)
    
    36 Cal.4th 686
    , 708 (Blair), overruled on another point in People v. Black (2014) 
    58 Cal.4th 912
    , 919.) “When ‘a motion to proceed pro se is timely interposed, a trial court
    must permit a defendant to represent himself upon ascertaining that he has voluntarily
    and intelligently elected to do so, irrespective of how unwise such a choice might appear
    to be. Furthermore, the defendant’s “technical legal knowledge” is irrelevant to the
    court’s assessment of the defendant’s knowing exercise of the right to defend himself.’”
    (People v. Dent (2003) 
    30 Cal.4th 213
    , 217.) While most defendants would be better
    defended with counsel than without, “a criminal defendant’s ability to represent himself
    has no bearing upon his competence to choose self-representation.” (Godinez v. Moran
    (1993) 
    509 U.S. 389
    , 400.) Indeed, a “trial court may not determine a defendant’s
    competency to waive counsel by evaluating his ability to present a defense.” (People v.
    Koontz (2002) 
    27 Cal.4th 1041
    , 1070.)
    “A defendant seeking to represent himself ‘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.” [Citation].’ [Citation.] ‘No
    4.
    particular form of words is required in admonishing a defendant who seeks to waive
    counsel and elect self-representation.’” (Blair, supra, 36 Cal.4th at p. 708.)
    “A defendant may challenge the grant of a motion for self-representation on the
    basis that the record fails to show that the defendant was made aware of the risks of self-
    representation.” (People v. Bloom (1989) 
    48 Cal.3d 1194
    , 1224.) “The failure to give a
    particular set of advisements does not, of itself, show that a Faretta waiver was
    inadequate. Instead, ‘[t]he burden is on [the defendant] to demonstrate that he did not
    intelligently and knowingly waive his right to counsel. … [T]his burden is not satisfied
    by simply pointing out that certain advisements were not given.’” (People v. Weber
    (2013) 
    217 Cal.App.4th 1041
    , 1058-1059; see People v. Koontz, 
    supra,
     27 Cal.4th at
    p. 1071.) “Rather, ‘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.’” (Blair, 
    supra,
     36 Cal.4th at p. 708.) We
    independently examine the entire record, not just the Faretta hearing record, to determine
    whether he intelligently and knowingly waived his right to counsel. (People v. Burgener
    (2009) 
    46 Cal.4th 231
    , 241.)
    Defendant contends the trial court erred in permitting him to represent himself
    pursuant to Faretta without obtaining a knowing and intelligent waiver of his right to the
    assistance of counsel. The People agree that the trial court failed to advise defendant,
    orally or in writing, of the rights he was waiving and the dangers of representing himself.
    We agree that the record as a whole fails to demonstrate that defendant understood
    the disadvantages of self-representation, including the risks and complexities of his case.
    There is nothing in the record to suggest that he did, other than the court’s statement that
    he had represented himself before. The court gave no admonitions, asked no questions,
    and failed to obtain a written waiver from defendant. The record does not demonstrate
    that defendant intelligently and knowingly waived his right to counsel.
    5.
    The parties acknowledge that the California Supreme Court has not decided
    whether a defective Faretta waiver is reversible per se or subject to harmless error
    analysis (People v. Burgener, 
    supra,
     46 Cal.4th at pp. 243-245), but the People
    appropriately concede that in this case the sentence must be reversed and the matter
    remanded to the trial court for resentencing. Indeed, on this record, we cannot deem the
    error harmless under any standard.
    DISPOSITION
    The sentence is vacated and the matter remanded to the trial court for a
    resentencing hearing at which defendant may elect to represent himself, if he so chooses,
    after receiving the proper admonitions. In all other respects, the judgment is affirmed.
    6.