People v. Miller CA5 ( 2015 )

Filed 6/26/15 P. v. Miller CA5
Received for posting 6/30/15
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F067409
Plaintiff and Respondent,
(Super. Ct. No. BF144095A)
v.
ORLANDO LEON MILLER, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Gary T.
Friedman, Colette M. Humphrey, and H.A. Staley,† Judges.
Patricia L. Watkins, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 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 Smith, J.
†Retired Judge of the Kern Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
Defendant Orlando Leon Miller represented himself and was convicted by jury
trial of failing to register his new address within five days of moving (Pen. Code,
§ 290.013, subd. (a)).1 The trial court dismissed his prior strike conviction, denied
probation, and sentenced him to the low term of 16 months in prison. On appeal,
defendant contends the trial court erred in granting his Faretta2 motion to represent
himself because the court failed to adequately advise him of the dangers of self-
representation and thus he did not knowingly and intelligently waive his right to counsel.
We disagree and affirm.
PROCEDURAL BACKGROUND
First Faretta Motion
On January 8, 2013, at the beginning of the preliminary hearing before
Judge Friedman, defendant informed the court that he wished to represent himself. The
courtroom was cleared of everyone except defendant and defense counsel. Defendant
first asked the judge to state on the record that he had taken an oath to perform his official
duties and that he was adhering to his oath. The judge answered that he did take an oath
to serve as a judge and he was adhering to his oath at all times. Defendant then read to
the court:
“It says I appear before this Court sui juris, as a flesh and blood living,
breathing, sovereign American citizen on the land, which in claiming all
my inherent, unlimited and unalienable constitutionally guaranteed rights,
and with my name lawfully and properly spelled only in upper and lower
case letters. [¶] … [¶] I hereby move for immediate dismissal with
prejudice because the charges brought against me as a citizen are
fraudulent, bogus and without substance.”3
The court told defendant the preliminary hearing would allow the court to
determine if there was probable cause for him to stand trial. If there was not, the charge
1All statutory references are to the Penal Code.
2Faretta v. California (1974) 422 U.S. 806 (Faretta).
3The complaint against defendant filed on September 19, 2012, was typed entirely in all
capital letters (including defendant’s name), as was the information filed on January 9, 2013.
2.
would be dismissed. Defendant asked the court to bear with him because it was his first
time representing himself. The court told him they had all the time in the world and
asked if he had anything else to address. At this point, the following occurred:
“THE DEFENDANT: I’d like to motion—make a Faretta motion.
“THE COURT: All right. What do you understand a Faretta motion
to be?
“THE DEFENDANT: I comprehend, as per [defense counsel], that it is
a request to represent myself.
“THE COURT: Okay. Now, you’ve had the public defender
appointed to represent you. Are you aware of the dangers and risks of
representing yourself?
“THE DEFENDANT: I believe that I am the most knowledgeable on
my case.
“THE COURT: Okay.
“THE DEFENDANT: And in establishing who I am, I believe that
offering my affidavit of status will establish who I am and establish that
there’s no jurisdiction for this case to go forward.
“THE COURT: All right. Let’s talk about this. [¶] You say this is
your first time in a criminal court?
“THE DEFENDANT: Yes, sir—well, my first time representing
myself, or even speaking up for myself or exercising my constitutional
rights, sir.
“THE COURT: Sure. Okay. [¶] Do you understand that you can
have an attorney represent you even if you can’t afford one? One would be
provided free of charge, such as you’re receiving representation by [defense
counsel] and her fine office.
“THE DEFENDANT: Yes, sir. [¶] … [¶]
“THE COURT: Okay. Let me go over some things with you.
[¶] You’ve stated to the Court that you do not wish to be represented by an
attorney, even though one would be provided for you at no expense. And if
you cannot afford one, as we’ve told you, one will be provided. [¶] Now,
you’ve indicated that even though you have one free of charge, you wish to
represent yourself. Is that correct, sir?
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“THE DEFENDANT: Yes, sir, at this—at this time I believe that in
consulting with my representative that I’m not being represented—
represented as I would desire to be. She’s giving me advice that I don’t
believe is adherent to my situation.
“THE COURT: You don’t believe her advice is favorable to you, is
that what you’re saying?
“THE DEFENDANT: Absolutely.
“THE COURT: Now, if you make this decision to act as your own
attorney, I want to caution you to see if you’ve considered and understand
the following: [¶] First, it’s almost always unwise to represent yourself,
and in doing so you may conduct a defense which may aid or assist the
prosecutor, the D.A., in convicting you of the charges. [¶] Have you
considered that possibility?
“THE DEFENDANT: Yes, sir. I believe that after I present my
affidavit that it will address all needed situations—
“THE COURT: Okay.
“THE DEFENDANT: —that will protect me.
“THE COURT: Now, you understand that you’re not entitled, if you
represent yourself, to any special treatment or privileges from the Court.
The Court, the judge, myself, will require you to follow all the technical
rules of law, procedure, and evidence in the defense of your case and in the
presentation of your case. The Court is not permitted to aid you in your
efforts to defend yourself…. [¶] Do you understand that?
“THE DEFENDANT: I comprehend, sir.
“THE COURT: Thirdly, the prosecutor will be an experienced
professional attorney, just as your attorney is, who will not treat you
leniently in any way even though, I should say, you do not have the same
skills or experience as the prosecutor. In other words, in common
language, she’s not going to cut you any slack. [¶] Do you understand that?
“THE DEFENDANT: I comprehend, sir.
“THE COURT: She’s there to do her job, and it will not likely be a
fair contest since the prosecutor is going to have an advantage by reason of
her skills, experience, and education. [¶] You, sir, will be responsible for
your entire defense, including procuring or obtaining the attendance of any
witnesses, asserting any legal or factual defenses. This may be the
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difference between acquittal and conviction in your case. [¶] Do you
understand that?
“THE DEFENDANT: I comprehend, sir.
“THE COURT: Okay. Fourth, if you are convicted, you may not
legally complain of not having had an attorney to represent you in this
matter. [¶] Do you understand and comprehend that?
“THE DEFENDANT: I comprehend, sir.
“THE COURT: Okay. Next, if you change your mind during the trial,
you may not—you may not—be permitted to obtain a postponement of the
case while you obtain an attorney. [¶] Do you understand that or
comprehend that?
“THE DEFENDANT: I comprehend that, sir. [¶] Question at this
point, sir.
“THE COURT: Go ahead, yes, sir.
“THE DEFENDANT: As far as assistance to counsel, what are the
limitations to assistance to counsel?
“THE COURT: Assistance—you’re either represented or you’re not
represented. [¶] … [¶]
“THE DEFENDANT: It is my belief that I have the constitutional right
to have an assistance of a person who is not an attorney.
“THE COURT: Okay. Well, let’s do a little research on that. Give
me a little time here.
“THE DEFENDANT: I appreciate your patience, sir.
“THE COURT: Sure. That’s what we’re here for, sir. [¶] … I think
what you’re inquiring about is appointment of an advisory or standby
counsel.… [¶] … [¶] A defendant who chooses to exercise his or her right
to self-representation does not—does not—have a constitutional right to
simultaneous—that means at the same time—self-representation and
representation by counsel, whether labeled co-counsel, advisory counsel, or
standby counsel. [¶] … [¶] So this isn’t a case that advisory or standby
counsel should be appointed to. However, … later during the case perhaps
it might be something that a judge, if this case goes further—in other
words, if we find probable cause to bind you over for trial on the felony
offense, you may later on request the judge, he or she, to appoint you a
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standby counsel. But I don’t think—I don’t think at this point it would be
appropriate to do so.
“THE DEFENDANT: Sir, can I clarify? [¶] You said this is—this is
the point where we determine whether we go forward.
“THE COURT: Right. We make a—sign an order binding the case
over for felony trial. [¶] You’re here on the complaint. You’ve already had
your arraignment, so you’re here to—and you had a pre-preliminary
yesterday. Is that correct?
“THE DEFENDANT: Yes, sir. I—
“THE COURT: And you’re here to determine if there’s probable
cause to bind you over, for the Court to issue a holding order that you be
held to answer in a felony trial.
“THE DEFENDANT: And I guess where my—my question is I
haven’t seen a warrant. I haven’t seen a complaint. I don’t know who
has—
“THE COURT: Do you want to see the complaint?
“THE DEFENDANT: I’d like to know who has the claim against me.
“THE COURT: Okay. The State of California, sir, under the Penal
Code, has a—
“THE DEFENDANT: Under the Penal Code.
“THE COURT: Yes.
“THE DEFENDANT: Now, as addressed as to my status, as to who I
am—
“THE COURT: Yes, sir.
“THE DEFENDANT: —I’m exercising my full constitutional right.
“THE COURT: Absolutely.
“THE DEFENDANT: Again, according to the United States
Constitution and the Bill of Rights as ratified in 1791, I have no rights if I
don’t exercise my rights. Am I not correct?
“THE COURT: You are entitled to all of your constitution rights
whether you ask that you be entitled to those or not, because I, under the
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law, am required to make sure that you, as a citizen of the United States, are
treated equally. [¶] All citizens are entitled to, whether they want them or
not, constitutional rights…. [¶] … [¶]
“THE DEFENDANT: Anything repugnant to the United States
Constitution as ratified in 1791, which is the declared supreme law, is null
and void. Is that not correct?
“THE COURT: If it’s not foursquare with the Constitution it would be
null and void.
“THE DEFENDANT: Okay. That’s what—it is my comprehension
that’s what ‘repugnant’ means.
“THE COURT: Right.
“THE DEFENDANT: So in entering my affidavit of status, it will
address that the complaint is not a valid complaint, and that it is—by it not
being valid, it is not constitutional.
“THE COURT: Yes, sir. [¶] … [¶]
“THE DEFENDANT: Yes, sir. [¶] So is it appropriate at this time to
read my affidavit into the public record?
“THE COURT: Sure. [¶] … [¶] Say we did … allow you to represent
yourself, and we determined that you were maybe perhaps intentionally
trying to be disruptive during the trial, trying to inappropriately delay the
trial or do something to prevent the orderly progression of the case, we
would have standby counsel there to take over should your pro per status be
terminated. And if the standby counsel has to take over … the case, the
court is not required to grant a continuance to allow standby counsel
additional time to prepare. [¶] And then also we’re required to warn you
that seeking pro per status, if the pro per status is revoked, new counsel
may be at a strategic disadvantage in presenting your case. [¶] So I want to
make sure that you know the parameters of what you’re asking. [¶] Go
ahead. You wanted to read your affidavit into the record.”
Defendant then read a lengthy affidavit in which he claimed he was a living,
breathing human being and not an artificial person. He extensively claimed his God-
given and constitutional rights. Finally, he noted his affidavit was signed and notarized.
The court thanked defendant, then returned to specific questions regarding
defendant’s understanding of his Faretta motion. Defendant stated that he understood
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the court’s explanation of the following consequences: if he changed his mind during
trial, he might not be permitted a continuance while he obtained an attorney; if the court
revoked his self-representation, he might be excluded from the courtroom for
misbehavior; if in custody, he would receive no more library privileges than other people
representing themselves; if convicted, he could not legally complain of not having an
attorney to represent him; if convicted, his punishment would be imprisonment for
16 months, two years, or three years, plus fines of up to several thousand dollars; and if
the court found his prior strike conviction true and did not dismiss it, his punishment
would be doubled to a maximum of six years.
The court explained to defendant: “Because in order to ascertain if you
intelligently wish to waive and knowingly waive your right to be represented by an
attorney, provided at no cost, we have to make sure that you understand all of the
consequences, the downside, if you will.” Defendant stated that he understood this.
The court gave defendant a copy of the complaint and the Faretta waiver form.
Defendant told the court he had graduated from high school, completed one and one-half
years of college, and served over six years in the Air Force. His primary language was
English and he had never been treated for any emotional or mental illnesses. The court
informed defendant he would need to respond to and initial each question on the written
Faretta waiver form. The court told him to go over the form with his attorney and ask
her any further questions he might have.
After a 15-minute break, the following occurred:
“THE COURT: All right. The court’s back in session. [¶] And
Mr. Miller is present with his counsel …. [¶] Sir, have you had an
opportunity to review the Faretta waiver form?
“THE DEFENDANT: Yes, sir. [¶] Again, I would like to identify I’m
not Mr. Miller. I am Orlando Miller, the living, breathing man, properly
spelled upper and lower case. I am not the legal fiction. I am not the all
cap man.
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“THE COURT: You’re the same Mr. Miller that entered this
courtroom for the preliminary hearing that we started a few minutes ago,
right?
“THE DEFENDANT: I am Orlando Miller, the living, breathing man.
“THE COURT: You are the same gentleman, sir. [¶] Have you had a
chance to review the Faretta waiver form?
“THE DEFENDANT: Yes, sir.
“THE COURT: And do you have any questions concerning the form?
“THE DEFENDANT: No, sir.
“THE COURT: Have you completed the form?
“THE DEFENDANT: No, sir.
“THE COURT: Do you wish to represent yourself or do you wish to
continue at this point to be represented by your deputy public defender?
“THE DEFENDANT: I wish to continue.
“THE COURT: Continue what?
“THE DEFENDANT: To move forward with representation.
“THE COURT: By [defense counsel]?
“THE DEFENDANT: Yes.
“THE COURT: Is that correct?
“THE DEFENDANT: Yes.
“THE COURT: Okay. So you’re not making a motion to represent
yourself at this time.
“THE DEFENDANT: Right. Correct.
“THE COURT: Is that correct, counsel?
“[DEFENSE COUNSEL]: Yes, Your Honor. Upon further—
“THE COURT: Okay, counsel, thank you very much. Very well.
[¶] So we bring the prosecutor in, please.”
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The court proceeded with the preliminary hearing.
Second Faretta Motion
At the readiness hearing before Judge Humphrey on March 1, 2013, the following
occurred:
“[THE COURT:] [Defendant] was offered a plea to count one, failure
to register under [section] 290, with a strike prior, for low term, 32 months.
[Defense counsel], it’s my understanding [defendant] rejected that offer and
has expressed an interest in representing himself; is that correct?
“[DEFENSE COUNSEL]: Yes, your Honor.
“THE COURT: [Defendant], it’s my understanding you would like to
act as your own attorney in this case; is that correct?
“THE DEFENDANT: Yes.
“THE COURT: I gave your attorney a form to have you fill out.
[Defense counsel], you gave this to your client to fill out?
“[DEFENSE COUNSEL]: Yes, your Honor, I read the form to him.
“THE COURT: This indicates you do understand the dangers and
pitfalls of representing yourself, and it is your desire to represent yourself, I
do believe that you have that right. So I am going to grant your Faretta
motion, allow you to represent yourself in this case …. [¶] … [¶] … Are
you going to be prepared to proceed to trial March 11th, or do you need
some more time to prepare?
“THE DEFENDANT: I’d like a little more time.
“THE COURT: Is that agreeable, [prosecutor]?
“[PROSECUTOR]: Yes, your Honor.
“THE COURT: I can put your trial on April 29th or I can put it on
May 6th.
“THE DEFENDANT: April 29th.
“THE COURT: You have a right to a speedy jury trial; do you
understand that right?
“THE DEFENDANT: Yes, I do.
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“THE COURT: Do you give up that right and waive time for your
trial till April 29th, plus twenty court days?
“THE DEFENDANT: Yes, I do.
“THE COURT: April 29th, nine o’clock, this courtroom for jury trial.
You’ll have another readiness hearing on April 19th, at 8:30. You’re
ordered back on both of those dates.”
The Faretta waiver form that defendant signed and initialed that day listed in his
handwriting the charge against him, the maximum punishment, and each of the
consequences that had been explained to him by the court on January 8, 2013. Where the
form stated, “Please explain briefly why you wish to represent yourself,” defendant
wrote, “subject matter jurisdiction and status.”
Readiness Hearing
At the readiness hearing on April 19, 2013, held before Judge Humphrey,
defendant again refused a plea offer, and a trial date was set.
Motions in Limine
On April 29, 2013, court convened before Judge Staley for commencement of
trial.4 Defendant posed questions to the judge regarding his oath of office to defend the
Constitution. Defendant twice told the judge he was disqualified because he refused to
answer all of defendant’s questions and thus was operating as an imposter. The court
denied the disqualification motions as frivolous. Defendant stated he was appearing as a
flesh-and-blood living being, claiming all his constitutionally guaranteed rights with his
name lawfully spelled only in upper and lower case letters. Defendant objected to the
judge’s refusal to answer his question about the oath and the judge’s refusal to allow him
to present evidence to support his statement about his status. The court noted the
objections and told defendant to raise them on appeal. Defendant asked who had raised a
claim against him. The court stated it was the district attorney for the State of California.
Defendant said he was entitled to face his accuser. Defendant asked whether his crime
4The remainder of the trial was conducted by Judge Staley.
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was defined as a crime by Black’s Law Dictionary. The court responded that these were
things a lawyer would understand and defendant did not appear to understand; the
questions were not appropriate for the court to answer. Defendant continued: “My
question is the prosecution does not jurisdiction [sic]. I’m challenging jurisdiction
because I have not committed a crime. There is no evidence. There’s no corpus delicti.
There’s no person here who has brought a claim against me.” The court denied his
objection, but defendant continued: “You may disagree, sir, but it states that I’m entitled
to due process. The moment that due process has not been followed, jurisdiction is lost.
The moment that I challenge jurisdiction is not up to me at that point to go any further.
The prosecution has to prove they have jurisdiction on the record.” The court explained
that there was no jurisdictional issue to discuss at this stage of the proceedings.
Defendant told the court: “Sir, if you’re going to show bias as to ruling in the
information or the evidence that I’m bringing forward, you’re perjuring your oath, that is,
if you have an oath.” The court responded that defendant was getting close to
contemptuous conduct, and it denied the disqualification motion again. Shortly
thereafter, the court turned to a discussion of the prosecution’s motions in limine.
After a recess, defendant said, “Judge, I would like to go back to what I addressed,
the oath of office. And I would just like to place in the open record that I have the oath of
office here. I have copies of your oath of office. I would like to hold you to your oath of
office.” The court said, “I’m not sure what that means but if you want to file something
with the Court, hand it to the bailiff.” Defendant’s exhibit was marked. Defendant cited
some cases, then explained that the judge’s oath of office referred to defending
defendant’s constitutional rights. He said he was trying to establish who he was versus
who the charges were against. The court declined to hear any further in limine motions
and asked that the prospective jurors be brought into the courtroom.
Trial
On April 30, 2013, defendant told the court he was the grantor beneficiary of the
trust and he asked to see the trustee. He asked to see the prosecutor’s license to practice;
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a request the court denied. He asked if any of the court officials had a claim against him.
When the court told him that no one would be answering that question, defendant said,
“Judge, I demand that this case be dismissed with prejudice.” Defendant started to leave
the courtroom. The court told him he could not leave and would be taken into custody if
he did. The bailiff followed defendant into the hallway. Defendant walked back into the
courtroom accompanied by law enforcement officers. The court informed him his
motion to dismiss was denied. Defendant said it was a demand, not a motion, because he
was the grantor beneficiary of the trust. He said he did not voluntarily return to the
courtroom; he was forced to come back in by law enforcement. He said he believed the
proceedings were over. At this point, the court remanded defendant (who had been
released on bail) into custody. Defendant accused the judge of acting outside his
constitutional oath, committing treason, and losing jurisdiction.
That afternoon, the prosecution called its witnesses and defendant cross-examined
them.
When the prosecution rested, defendant called and questioned two witnesses.
Then defendant testified on his own behalf. He admitted failing to register, but claimed it
was not a willful failure.
On May 1, 2013, defendant argued to the court that he was not the entity charged
because he did not spell his name with all capital letters. He explained:
“Well, from the very beginning of this trial, I have been distinctive about
my identity in expressing that I am the living, breathing man sent here
being on the land, proper spelling upper and lower case. I am not the legal
fiction. It’s as though that’s being ignored. [¶] What I’d like to do or what
I’d like to ask is to have the prosecution prove that I am the entity that they
are prosecuting because every reference to the Orlando Leon Miller in this
case that’s in writing or in reference is in all capital letters. And from the
very beginning, my distinction is that’s not me. Anything that refers to me
is only properly spelled in upper and lower case spelling.”
He stressed that he was not the Orlando Leon Miller that is spelled with all
capitals. He said names in all capitals were only corporations, not living beings, and he
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was therefore not the corporation listed in all capitals on his charging document. The
court ruled that this was a frivolous defense.
In his closing argument to the jury, defendant argued that he had never willingly
or intentionally failed to register in his more than 20 years of registering. He did miss
once because he was taking care of his mother.
The jury found defendant guilty as charged.
Sentencing
At the sentencing hearing on May 31, 2013, the court gave defendant time to read
the probation officer’s report. Then the following occurred:
“THE COURT: Are there any comments that you wanted to make
regarding your sentencing? I did read your document that you presented. It
did seem to have—at one point you were asking for a declaratory judgment.
You might want to explain exactly what that is. It wasn’t completely clear
to me. As I understand it, you were also asserting that there was no
obligation to register as you had Fifth Amendment rights that would
prohibit you from being compelled to provide that information.
[¶] Anything else you want to address?
“[DEFENDANT]: Nothing other than the fact that I believe that my
jurisdiction or that the jurisdiction of the court was never truly established.
According to the document that I provided, if jurisdiction is not proven on
the record according to the laws pursuant to due process, that there is no
authority to move forward. If jurisdiction is never established, then the
proceedings are null and void of law because there was never any true
foundation established to move forward in the pursuit of accusing me or
establishing that the act of not registering was truly even considered a
crime. And that according to criminal procedure, a crime is where there is
a victim. If there is no victim, there can be no case. If there is no one who
has a claim against me, I have no one that I’m facing. If I’m guaranteed the
right to face my accuser and never examine and an accuser never shows up,
where is the justice in that? I don’t have anyone to defend myself against.”
The court dismissed defendant’s prior strike conviction and imposed the low term
of 16 months.
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DISCUSSION
Law
“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, 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
particular form of words is required in admonishing a defendant who seeks to waive
counsel and elect self-representation.’ [Citation.]” (People v. Blair, supra, 36 Cal.4th at
p. 708.) “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
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demonstrates that the defendant understood the disadvantages of self-representation,
including the risks and complexities of the particular case.’” (Blair, supra, 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.)
Lack of Oral Advisements
Defendant contends that although he initialed and signed the Faretta waiver form
on March 1, 2013, advising him of many disadvantages of self-representation, the written
advisements were inadequate. He asserts the trial court acted in a perfunctory manner,
failing to ask him questions, offer any oral advisements, or engage in any meaningful
dialogue.
As defendant acknowledges, however, oral advisements regarding the dangers of
self-representation are not required. The court in Blair explained:
“The … in propria persona advisement form (sometimes referred to as a
Faretta form) serves as ‘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.’ [Citation.] The court
might query the defendant orally about his responses on the form, to create
a clear record of the defendant’s knowing and voluntary waiver of counsel.
[Citation.] The failure to do so, however, does not necessarily invalidate
defendant’s waiver, particularly when, as here, we have no indication that
defendant failed to understand what he was reading and signing. To the
contrary, defendant demonstrated his ability to read and write in numerous
pro se filings before the court. Defendant also appeared to be of at least
normal intelligence and spoke articulately in court. The last superior court
judge who considered defendant’s request for self-representation … found
that defendant was ‘in full control of his faculties’ and was making ‘a
conscious choice.’ We have no reason to question these findings.” (People
v. Blair, supra, 36 Cal.4th at p. 709.)
Here, defendant was an educated and articulate person who capably questioned
witnesses and offered his own testimony. After reviewing the record, we have no reason
to believe he did not understand the written advisements in the Faretta form he initialed
and signed on March 1, 2013. Furthermore, although defendant does not mention it, he
16.
received exhaustive and solicitous oral advisements on January 8, 2013, when he raised
his first Faretta motion, as detailed above. We have considered the entire record, most
definitely including the first Faretta hearing, and we conclude that defendant understood
the dangers and disadvantages of self-representation and nevertheless knowingly and
intelligently chose to waive his right to counsel. (People v. Blair, supra, 36 Cal.4th at p.
708.)
Lack of Particular Advisement
Defendant argues his advisements critically omitted the advisement that he was
giving up the right to raise ineffective assistance of counsel on appeal. (His Faretta form
advised him, “If you are convicted, you may not legally complain of not having had an
attorney represent you in this matter.”) In his reply brief, he says both he and the People
recognize that case law requires defendants to be advised that if they represent
themselves, they cannot complain on appeal they were inadequately represented. This
misrepresents both what the People say and what case law requires. The People say only
that a defendant who elects to represent himself cannot later raise a claim of ineffective
assistance of counsel on appeal (not that an advisement of that fact is required), and case
law establishes that no particular advisements are required. (People v. Blair, supra, 36
Cal.4th at p. 708; People v. Koontz, supra, 27 Cal.4th at p. 1071.) Courts have
recommended various advisements as a prophylactic measure, “to ensure a clear record
of a knowing and voluntary waiver of counsel, not to create a threshold of competency to
waive counsel.” (Koontz, supra, at p. 1071.) “No particular form of words is required in
admonishing a defendant who seeks to waive counsel and elect self-representation ….”
(Id. at p. 1070.) The absence of this particular advisement does not change the test, or
our conclusion that the record as a whole demonstrates that defendant understood the
disadvantages of representing himself, including the risks specific to his case, and chose
to do so anyway.
17.
Bizarre Behavior and Ill-conceived Defense
Finally, defendant contends that the written advisements were inadequate in light
of the red flags raised by his bizarre behavior—his statement on the Faretta form that his
reason for wanting to represent himself was “subject matter jurisdiction and status,” and
his repeated statements that demonstrated his “erroneous and somewhat eccentric ideas
regarding what constitutes a legal defense.” He explains that his “misapprehension
regarding a valid legal defense make[s] it abundantly clear that the court had a duty to
inquire as to [his] opaque statement of why he wished to represent himself.”
The essence of defendant’s unusual defense theory—which he referred to as
“subject matter jurisdiction and status”—was that he was not the entity charged in the
complaint because an entity described in all capital letters does not refer to a flesh-and-
blood living person, but another type of entity, such as a corporation. Because he was not
the entity charged in the complaint, the complaint was invalid and unconstitutional, and
the court had no jurisdiction to proceed against him on the complaint.
While this defense theory was bizarre and frivolous, it was not a theory of
defendant’s own making. Indeed, defendant was employing a known defense theory
often referred to as the “flesh and blood” defense. “Although unique by conventional
legal standards, the [‘flesh and blood’] arguments are not new. Increasingly, they have
been asserted in criminal cases ….”5 (U.S. v. Mitchell (D.Md. 2005) 405 F. Supp. 2d 602,
604.)
In Mitchell, the defendants refused to “consent” to prosecution and asserted that
the indictment “fail[ed] to properly represent them as ‘flesh and blood’ men” because
their names were printed in capital letters. (U.S. v. Mitchell, supra, 405 F.Supp.2d. at p.
603.)6 The court, which “clearly ha[d] jurisdiction over the defendants and [their]
5These theories
have been relied upon in civil cases as well. (See, e.g., Masterson,
“Sovereign Citizens”: Fringe in the Courtroom (Mar. 2011) 30-2 American Bankruptcy
Institute J. 1.)
6The court noted that “the use of capital letters in the caption of an indictment is
irrelevant to the issue of subject matter jurisdiction. The government attorneys and the court
18.
criminal charges,” rejected these “[b]izarre and misguided contentions,” and warned the
defendants to stop their disruptive behavior.7 (Mitchell, at pp. 605, 606.)
The “Flesh and Blood” Defense (2012) 53 Wm. & Mary L.Rev. 1361 explains:
“[In Mitchell,] Judge Andre Davis, ruling on various pro se motions
in the case, reflected that the nonsensical claims Mr. Mitchell and his
codefendants raised ‘would even be humorous—were the stakes not so
high.’ After summarily rejecting the defendants’ arguments as ‘patently
without merit,’ Judge Davis explored the origins of their ‘in-court tirades
and irrational written objections based on “jurisdiction.”’ Tracing these
misguided arguments back through American history revealed connections
to a colorful cast of ‘religious zealots, gun nuts, tax protestors, and violent
separatists … who believe that America was irrevocably broken when the
14th Amendment provided equal rights to former slaves.’ Judge Davis
found it ‘truly ironic that four African-American defendants here apparently
rely on an ideology derived from a famously discredited notion: the
illegitimacy of the Fourteenth Amendment.’
“This phenomenon, known colloquially in some jurisdictions as the
‘flesh and blood defense,’ is the embodiment in federal criminal cases of a
movement sometimes referred to as the ‘sovereign citizen’ or ‘anti-
government movement. Commentators trace this movement back to the
‘Posse Comitatus,’ a loosely organized group of right-wing extremists most
active in the 1970s and ’80s. Only pro se defendants advance this ‘defense’
because no competent attorney would attempt to defend a criminal
prosecution on such grounds. Indeed, the flesh and blood defense is legally
frivolous—’in a court’s eyes, it is as if the proponent had advanced no
argument at all.’ The flesh and blood defense is made possible by the
Supreme Court’s recognition of a fundamental right to self-representation
in criminal trials in Faretta v. California. The Court, even in first
recognizing this right, however, acknowledged the danger inherent in self-
representation—namely that pro se defendants may work ‘ultimately to
[their] own detriment.’ There is no doubt that defendants who invoke the
have addressed the defendants, both in court and on paper, in a proper manner that clearly
identifies them. ‘It makes no sense to rest a jurisdictional distinction upon the use of all upper
case letters or a mixture of upper and lower case letters. The federal courts abandoned this level
of formalism long ago.’” (U.S. v. Mitchell, supra, 405 F.Supp.2d. at p. 604.)
7Courts sometimes deny self-representation to defendants who attempt to use this bizarre
strategy because of its obstructionist and delay tactics. (E.g., United States v. Mosley (8th Cir.
2010) 607 F.3d 555, 557, 559 [district court properly denied self-representation right of
defendant who refused to answer questions at competency hearing and asserted he was a “flesh
and blood breathing man[,] not a corporation”].)
19.
flesh and blood defense are indeed working to their own detriment. [¶] …
[¶]
“The argument that flesh and blood defendants present centers on a
lack of personal jurisdiction, as the defendant asserts he or she is not a
‘corporate citizen’ but a ‘live flesh and blood man,’ a ‘sovereign citizen.’
Thus, flesh and blood defendants avoid making any suggestion that the
court’s jurisdiction is proper, which may start with a protest as simple as
refusing to identify themselves for the record. Similarly, some defendants
may refuse to acknowledge that they are the person named in the
indictment, often because the indictment names the defendant in all capital
letters, and flesh and blood theory instructs that the all-capital name
represents the ‘corporate citizen’ named on one’s Social Security card.
These defendants may also refuse to sign documents or insist on appending
their signatures with suffixes that symbolize their personal sovereignty.
Indeed, some defendants may refute that they are the person named in the
indictment because of the special suffixes they add to their names. Beyond
mere refusal to identify themselves, flesh and blood defendants may refuse
to enter a plea, to be cross-examined by the government, or to participate in
the proceedings at all, wary of giving any indication that might imply the
court has power over them. Other defendants … are fond of filibustering
the court, launching into soliloquies on common law jurisdiction that are
legal gibberish. [¶] … [¶] Transcending legal attacks on jurisdiction,
subscribers to flesh and blood theory may make the judge, or the court
generally, the target of both legal attacks and direct threats. For instance,
by filing a lawsuit against the judge hearing their criminal cases, defendants
may claim that the judge has a conflict of interest and cannot continue
hearing the criminal matter. Other defendants may choose to skip lawsuits
and attack the judge’s impartiality through traditional means such as
motions for recusal or disqualification. Others may focus simply on filing
nuisance suits and property liens against judges and court personnel. More
worrisome than these harassment tactics, however, are the defendants who
make threats of violence that may constitute crimes in and of themselves.
[¶] Finally, and most critically, no lawyer would advance the legally
frivolous flesh and blood defense, a reality that leads flesh and blood
defendants to fire their attorneys and proceed pro se. Though flesh and
blood defendants may make demands for counsel of their choice, they insist
on attorneys who will adopt their philosophy, which is impossible, or
nonlawyers, which the court will not allow. Further, although indigent
criminal defendants enjoy a fundamental right to appointed counsel, they
are not entitled to counsel of their choice.” (Note, The “Flesh and Blood”
Defense, supra, 53 Wm. & Mary L.Rev. at pp. 1362-1374, fns. omitted.)
20.
The court in U.S. v. Benabe (7th Cir. 2011) 654 F.3d 753 repeated its rejection of
the flesh-and-blood defense and related frivolous theories:
“Our intention is not to quash the presentation of creative legal arguments
or novel legal theories asserted in good faith. But the arguments raised by
these defendants were not in good faith. We have repeatedly rejected their
theories of individual sovereignty, immunity from prosecution, and their
ilk. See United States v. Burke, 425 F.3d 400, 408 (7th Cir. 2005); United
States v. Hilgeford, 7 F.3d 1340, 1342 (7th Cir. 1993) (rejecting the ‘shop
worn’ argument that a defendant is a sovereign and is beyond the
jurisdiction bounds of the district court); United States v. Sloan, 939 F.2d
499, 500–01 (7th Cir. 1991); United States v. Schneider, 910 F.2d 1569,
1570 (7th Cir. 1990) (describing defendant’s proposed ‘sovereign citizen’
defense as having ‘no conceivable validity in American law’); United
States v. Phillips, 326 Fed.Appx. 400 (7th Cir. 2009) (dismissing
jurisdiction arguments as frivolous because federal courts have subject
matter and personal jurisdiction over defendants brought before them on
federal indictments alleging violations of federal law). Regardless of an
individual’s claimed status of descent, be it as a ‘sovereign citizen,’ a
‘secured-party creditor,’ or a ‘flesh-and-blood human being,’ that person is
not beyond the jurisdiction of the courts. These theories should be rejected
summarily, however they are presented.” (U.S. v. Benabe, supra, 654 F.3d
at p. 767.)
As this discussion clarifies, defendant intentionally pursued a known defense
strategy. His defense may have been erroneous and eccentric, but it was intentional and
strategic, and it was defendant’s stated reason for wanting to represent himself.8 His
pursuit of an ill-advised defense did not require the court to question or deny his self-
representation. (See Godinez v. Moran, supra, 509 U.S. at p. 400; People v. Koontz,
supra, 27 Cal.4th at p. 1070.)
In People v. Weber, supra, 217 Cal. App. 4th 1041, the defendant raised a similar
flesh-and-blood defense, then claimed on appeal that he had not been competent to
represent himself. The appellate court explained:
“The evidence at the competency hearing indicates that defendant’s bizarre
motions and objections were not the result of delusions but were intentional
8When this strategy did not put an end to the proceedings, defendant testified that his
failure to register was not intentional.
21.
efforts to thwart the proceedings.… [¶] … [¶] … Appellate counsel
contends defendant’s dignity was impugned and the trial became a
‘spectacle’ …. [¶] … [¶] Defendant’s dignity was not impugned[;] it was
honored by the order granting his Faretta request: ‘Respect for the dignity
and autonomy of the individual is a value universally celebrated in free
societies and uniformly repressed in totalitarian and authoritarian societies.
Out of fidelity to that value defendant’s choice [to waive counsel] must be
honored even if he opts foolishly to go to hell in a handbasket. At least, if
the worst happens, he can descend to the netherworld with his head held
high. It’s called, “Doing It My Way.”’” (Id. at pp. 1052-1055.)
Conclusion
After our review of the entire record, we conclude defendant “‘understood the
disadvantages of self-representation, including the risks and complexities of the particular
case.’” (People v. Blair, supra, 36 Cal.4th at p. 708.) His waiver of the right to counsel
was knowing and intelligent, despite his choice of defense. The trial court did not err in
granting defendant’s Faretta motion.
DISPOSITION
The judgment is affirmed.
22.