People v. Ruffin ( 2017 )

Filed 6/6/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B270940
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA137412)
v.
ELIJAH JOE RUFFIN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles
County, John Cheroske and Kelvin D. Filer, Judges. Reversed.
Theresa Osterman Stevenson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant Attorney
General, Zee Rodriguez and Corey J. Robins, Deputy Attorneys General,
for Plaintiff and Respondent.
By information, appellant Elijah Joe Ruffin was charged with
corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a))1 and
assault by means of force likely to produce great bodily injury (§ 245,
subd. (a)(4)), based on a single alleged assault on Katisha E. It was also
alleged that he had suffered two prior strike convictions (§§ 667, subd.
(d), 1170.12, subd. (b)) and had served two prior prison terms (§ 667.5,
subd. (b)).2
In the master calendar court, on the date set for trial, appellant
exercised his right to represent himself under Faretta v. California
(1975) 422 U.S. 806, after the court indicated it would find good cause to
continue the trial because appellant’s appointed counsel was engaged in
another trial. Before the court granted the Faretta request, appellant
initialed and signed a written Faretta advisement form. Thereafter,
appellant represented himself at trial before a different judge, and a
jury convicted him of both counts. The trial court found the strike and
prior prison term allegations true, struck one strike at sentencing, and
sentenced appellant to total term of eight years in state prison.
On appeal, appellant contends that the master calendar court
failed to adequately advise him of the dangers and disadvantages of
self-representation. We agree. The court’s inquiry consisted of asking
whether appellant initialed and signed the form (he did) and whether
1 Unspecified statutory references will be to the Penal Code.
2 The alleged strikes were prior convictions of forcible rape (§ 261, subd.
(a)(2)) and criminal threats (§ 422, subd. (a)).
2
he had any questions (he did not). The court did not ascertain on the
record that defendant read and understood the written Faretta form.
The court also failed to inquire about ambiguities in appellant’s
responses regarding his understanding of the nature of the charges
against him. And nothing in the record—not the oral proceedings or the
written Faretta form—advised defendant of the penal consequences of
conviction—27-years-to-life in state prison. Considering all these
circumstances and reviewing the entire record de novo, we conclude
that appellant’s Faretta waiver was invalid, because the master
calendar court’s inquiry about the Faretta form and the remainder of
the record fail to adequately demonstrate that that appellant
understood the dangers and disadvantages of representing himself
consistent with established case authority. Therefore, we reverse the
judgment.3
TRIAL EVIDENCE
Katisha E. testified that she began dating appellant in 2015 and
moved into his home in March of that year. On April 2, 2015, she
awoke around 2:00 a.m. when she heard appellant searching through
her purse. Appellant accused Katisha E. of being a prostitute, and
struck and choked her, resulting in swelling and redness to her right
eye, bruising to her left eye, and bruises and a large bump to her right
shoulder. Katisha E. moved to her stepmother’s house that night but
3 Because we reverse on this ground, we need not discuss appellant’s
other contentions.
3
did not report the incident to the Los Angeles County Sheriff’s
Department until April 5, 2015.
FARETTA PROCEEDINGS
On September 30, 2015, the last day for trial, appellant’s assigned
alternate public defender was engaged in trial in another case. In the
master calendar department, a substitute alternate public defender
asked the court to continue the case until October 6, when appellant’s
assigned attorney would be finished with the other trial. The court
asked appellant, “You give up your right to go to trial today and agree
to October 6 or not?” When appellant replied “no,” the court stated that
it would find good cause to continue the trial.
The alternate public defender then informed the court that
appellant wanted to start the trial and proceed in pro. per. The court
responded, “You are not that stupid. You have one of the best lawyers
in the county.” Appellant stated, “You can’t keep me in jail for
allegations. I have rights. You are unconstitutionally keeping me in
prison. You are violating my rights to a speedy trial.” The court told
appellant, “don’t talk to me anymore. Put him back. Any family here?”
Appellant’s father stated that he was present. The court said, “Maybe
you can talk to him. He wants to commit suicide. He has a good
lawyer. He doesn’t know how to be a lawyer. If he wants to, I will let
him. If you want to talk to him, it’s up to you. You want to talk to
him?” The father replied, “I can talk to him but he wants a speedy
4
trial.” The court stated, “Okay. Thanks for helping me. We will pass
this.” The court then took a recess.
The court provided appellant with a copy of a document later
described by the court as “the pro. per. policy memorandum of Local
Rule 6.41,”4 as well as a written advisement and waiver of right to
counsel form. On the waiver form, appellant checked the boxes advising
him of, among other things, his right to counsel, his right to represent
himself, and a lengthy, detailed list of dangers and disadvantages of
self-representation. In the portion of the form regarding the charges,
appellant checked the box indicating that he understood he was
“charged with the following crime(s),” but the space for listing the
charges was left blank. He checked the box stating that he knew “the
crime(s) with which you are charged (is) (are) (general) (specific) intent
crime(s),” but he failed to circle either. He also checked boxes indicating
that he knew what facts had to be proved before he could be found
guilty and knew the legal defenses. Nothing in the form advised him of
the penal consequences of conviction. Because he was eligible for
treatment as a third-strike defendant, with two prior prison terms
alleged alleged, he was subject to a possible sentence of 27 years to life
in state prison.5 He checked boxes affirming that he understood the
4 The memorandum is not in the record. Neither side discusses its
contents in arguing whether appellant’s Faretta waiver was valid. Rather,
both rely on the written waiver form and the record of oral proceedings.
5 Neither of appellant’s charged offenses, which were committed in a
single violent incident, was a serious or violent felony. Nonetheless, upon
conviction of either or both of those crimes, and a true finding of his two
5
court’s recommendation that he not represent himself and that it
remained his wish to represent himself. Finally, he signed and dated
the form, certifying: “I have read, understood and considered all of the
above warnings included in this petition, and I still want to represent
myself. I freely and voluntarily give up my right to have a lawyer
represent me.”
When the court reconvened, the following proceedings occurred:
“THE COURT: Recalling People vs. Ruffin. I have documents by
Mr. Ruffin. You understand you are requesting to go to trial today and
to represent yourself. Is that your wish?
“THE DEFENDANT: Yes.
“THE COURT: You had an opportunity to read the documents
submitted to you. Those were the pro. per. policy memorandum of Local
Rule 6.41. Did you read that?
“THE DEFENDANT: Yes.
“THE COURT: Did you understand it?
alleged strikes, he would not be eligible for sentencing as if he was a second
strike defendant under section 667, subdivision (e)(2)(C). One of defendant’s
alleged prior strikes was a conviction of forcible rape under section 261,
subdivision (a)(2). Such a crime is a sexually violent offense as defined in
Welfare and Institutions Code section 6600, subdivision (b). Under section
667, subdivision (e)(C)(iv)(I), a defendant who has suffered a prior conviction
of such an offense is exempted from treatment as a second strike defendant,
even if the present crimes are not serious or violent. (See Couzens &
Bigelow, California Three Strike Sentencing (Rutter Group 2016) § 7:2, pp. 7-
18 to 7-19.) Therefore, if appellant were convicted of one or both of the
charges against him, and if both alleged strikes were found true, he was
subject to third strike sentencing. In addition, if the section 667.5,
subdivision (b) priors were found true, appellant could possibly be sentenced
to an additional two years. Thus, we describe the maximum possible
sentence if appellant were convicted and all his priors were found true as 27
years to life.
6
“THE DEFENDANT: Yes.
“THE COURT: I am holding a document entitled Advisement of
Waiver of Right to Counsel of 4 pages. On the right-hand side it has
initials E.R. Did you put that in there?
“THE DEFENDANT: Yes.
“THE COURT: That stand for Elijah Ruffin?
“THE DEFENDANT: Yes.
“THE COURT: Is that your signature?
“THE DEFENDANT: Yes.
“THE COURT: You have any questions about anything before I
send you to trial forthwith?
“THE DEFENDANT: No.
“THE COURT: Okay. Sent to Department C, Judge Filer for trial
today.”
When the case was called that morning in the trial department,
the prosecutor stated his appearance, and the trial court noted that
appellant was representing himself. Appellant replied: “Really I don’t
want to represent myself pro per. But I have no choice. I’ve been in
prison. I wanted a speedy trial. . . . I really would like someone with
some type of legal responsibility to represent me because now I have to
ask for a couple days to go over this to build a defense for me.” The
court replied, “All that should have been taken care of in Department D.
Today is day ten of ten. . . . [¶] I’m confident you have been granted pro
per status. So we’re here and ready to proceed with the trial, and I
intend on going through with the trial.” Appellant stated, “I had no
time to go over any paperwork, so if I can ask for some time to go over
paperwork, and come back [at] a later date so I can have a defense.
This is the first time I’ve seen paperwork regarding this case at all.”
7
The prosecutor replied that appellant had “indicated he was ready
today.” Appellant stated, “And what I mean by ready . . . I was ready to
go to trial to defend myself with some type of legal help.” The court
denied appellant’s request, stating, “No, this has already been litigated
and you can’t play games with the court system. I have a waiver form
that has been initialed by you and signed by you indicating that you
have been properly advised and that you want to represent yourself.
Once that determination was made by Judge Cheroske he granted you
that right, so the case was sent here for trial.”
The trial court noted that it would take the rest of the day to pick
a jury, and that appellant would have an opportunity to read any
relevant reports before testimony began the next day. The court also
advised appellant that he would not receive any special treatment and
that he would receive a fair trial. The court added, “So you’re here
representing yourself; is that correct?” Appellant replied, “Yes, I am.”
The court briefly explained the procedures for picking a jury, bifurcated
the trial on appellant’s alleged prior convictions, and at the prosecutor’s
urging again advised that appellant would receive “no special treatment
and no special privilege. . . . All the rules of evidence must be followed
and observed and the rules of court decorum as well.” Appellant
affirmed that he understood.
DISCUSSION
Appellant contends the master calendar court erred by allowing
him to represent himself without first determining whether he
8
knowingly and intelligently waived his right to counsel. For the
reasons discussed below, we agree.
“‘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. [Citations.] 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.] 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.” [Citations.]’ [Citation.] Thus, ‘[a]s long as the record as a whole
shows that the defendant understood the dangers of self-representation,
no particular form of warning is required.’ [Citations.]” (People v.
Burgener (2009) 46 Cal. 4th 231, 240–241 (Burgener).) “‘On appeal, we
review the entire record, including proceedings after the invocation of
the right to self-representation, and determine de novo whether the
defendant’s waiver of the right to counsel was knowing and voluntary.’
[Citations.]” (People v. Bush (2017) 7 Cal.App.5th 457, 469 (Bush).)
Although no specific inquiry is required, prior California decisions
have discussed the types of warnings that are sufficient. Those
warnings “‘include the defendant’s inability to rely upon the trial court
9
to give personal instruction on courtroom procedure or to provide the
assistance that otherwise would have been rendered by counsel. . . .’
[Citation.] The defendant ‘should at least be advised that: self-
representation is almost always unwise and that the defense he
conducts might be to his detriment; he will have to follow the same
rules that govern attorneys; the prosecution will be represented by
experienced, professional counsel who will have a significant advantage
over him in terms of skill, training, education, experience, and ability;
the court may terminate his right to represent himself if he engages in
disruptive conduct; and he will lose the right to appeal his case on the
grounds of ineffective assistance of counsel. [Citation.] In addition, he
should also be told he will receive no help or special treatment from the
court and that he does not have a right to standby, advisory, or
cocounsel. [Citation.] [¶] While this list of issues is not exhaustive, it
demonstrates that there are a number of matters the court must ask
about and consider before ruling on a defendant’s request to represent
himself.’ [Citation.]” (People v. Sullivan (2007) 151 Cal. App. 4th 524,
545–546 (Sullivan).)
In addition, we note that the court should satisfy itself that the
defendant understands the nature of the charges against him, though
there is a split of authority in California as to whether the court must
also specifically advise the defendant of the maximum penal
consequences of conviction. (See Bush, supra, 7 Cal.App.5th at pp. 469-
474 [discussing decisions and holding advisement of penal consequences
is not essential to a valid Faretta waiver]; compare People v. Jackio
10
(2015) 236 Cal. App. 4th 445, 454-455 [holding that court must advise
the defendant of the maximum punishment if convicted, including
enhancements].) We need not enter the debate whether and to what
extent a trial court is required to advise of possible penal consequences,
because even if such an advisement is not mandatory, its total absence
is certainly a factor to consider in determining whether the defendant’s
waiver was knowingly made, and in this case we rely on the entire
record to conclude that the Faretta waiver was invalid.
Finally, “[t]he high court has instructed that courts must draw
every inference against supposing that the defendant wishes to waive
the right to counsel. [Citation.] It follows, as several courts have
concluded, that in order to protect the fundamental constitutional right
to counsel, one of the trial court’s tasks when confronted with a motion
for self-representation is to determine whether the defendant truly
desires to represent himself or herself. [Citations.] The court faced
with a motion for self-representation should evaluate not only whether
the defendant has stated the motion clearly, but also the defendant’s
conduct and other words. Because the court should draw every
reasonable inference against waiver of the right to counsel, the
defendant’s conduct or words reflecting ambivalence about self-
representation may support the court’s decision to deny the defendant’s
motion. A motion for self-representation made in passing anger or
frustration, an ambivalent motion, or one made for the purpose of delay
or to frustrate the orderly administration of justice may be denied.”
(People v. Marshall (1997) 15 Cal. 4th 1, 23 (Marshall).)
11
In the instant case, there is no question that the master calendar
court’s oral comments themselves failed to adequately advise appellant
of the dangers and disadvantages of self-representation. In that regard,
Burgener is instructive. There, the defendant was represented by
counsel at trial and at several post-conviction and post-appeal hearings.
The case was reversed and remanded twice. The defendant asked to
represent himself at a resentencing hearing after defense counsel stated
his intent to request another continuance. “Promptly upon learning of
defendant’s interest in representing himself, the court stated, ‘I think I
would be remiss if I didn’t advise you at least with regard to certain
possible pitfalls with regard to self-representation.’ Then, at the
subsequent hearing, the court acknowledged that its own opinion on the
matter was not determinative; ‘[i]t’s a question of whether or not you
are fully aware of the consequences of representing yourself.’”
(Burgener, supra, 46 Cal.4th at p. 241.)
Our Supreme Court reasoned that, although “the trial court was
aware of its duty to advise defendant of the dangers and disadvantages
of self-representation . . . [¶] [t]he record concerning defendant’s
understanding of the dangers and disadvantages of self-representation
. . . is rather thin. Despite the foregoing statements of intent, the court
did not actually follow through and advise defendant of the ‘possible
pitfalls’ or ‘consequences’ of self-representation. Instead, the court
simply assumed that defendant was aware of them, at first declaring,
‘I’m sure that you’re familiar with all of the obligations and—that are
concerned in this particular matter, what the consequences are.’”
12
(Burgener, supra, 46 Cal.4th at pp. 241-242.) The court found the trial
court’s advisement “plainly insufficient to establish a knowing and
intelligent waiver of the right to the assistance of counsel.” (Id. at p.
242.) Burgener emphasized that a request for self-representation in a
limited proceeding, such as “the trial court’s reconsideration of his
application to modify the verdict . . . differs markedly from a trial on the
merits, which involves voir dire of potential jurors, the examination and
cross-examination of witnesses, and jury instructions.” (Ibid.)
Here, the master calendar court’s oral comments advised
appellant, in substance, that it was unwise for him to represent himself:
“You are not that stupid”; “He wants to commit suicide. He has a good
lawyer. He doesn’t know how to be a lawyer.” But the court did not
give any other oral advisements. Respondent relies on the written
waiver form to argue that appellant’s waiver was knowing and
voluntary. We disagree.
In granting appellant’s request to represent himself, the master
calendar court declared: “You understand you are requesting to go to
trial today and to represent yourself. Is that your wish?” Appellant
replied, “Yes.” The court noted that appellant “had an opportunity to
read the documents submitted to” him. The court then referred
specifically to “the pro. per. policy memorandum of Local Rule 6.41,”
and asked if appellant read and understood it. Appellant replied yes to
both questions. Next, the court stated that it was “holding a document
entitled Advisement of Waiver of Right to Counsel of 4 pages.” In
response to the court’s inquiries, appellant affirmed that he had
13
initialed and signed the form. The court then asked, “You have any
questions about anything before I send you to trial forthwith?” When
appellant answered he did not, the court ordered the case out for trial.
The court did not affirmatively ascertain on the record whether
appellant actually read and understood the advisements contained in
the waiver form, and whether, with such understanding, appellant
wished to waive his right to counsel and represent himself.
Further, appellant’s completed form was not entirely clear
regarding his knowledge of the charges against him. In the portion of
the form regarding the charges, appellant checked the box indicating
that he understood he was “charged with the following crime(s),” but
the space for listing the charges was left blank. He also checked the box
stating that he knew “the crime(s) with which you are charged (is) (are)
(general) (specific) intent crime(s).” But without appropriate editing,
his mere checking the box suggested that, in fact, he did not know
whether the charges required general or specific intent. On the other
hand, he checked boxes indicating that he knew what facts had to be
proved before he could be found guilty and knew the legal defenses.
Despite these apparent ambiguities, the master calendar court made no
inquiry in an attempt to assure itself that appellant actually understood
the charges. We do not mean to suggest that a court must make a
detailed inquiry into a defendant’s knowledge of specific elements of the
charges against him. And we certainly understand the exigencies of
running a busy master calendar court. But when a completed Faretta
waiver form is blank as to the specific charges and confusing as to the
14
defendant’s understanding of the intent requirements, yet reflects that
the defendant purports to know what facts must be proved for
conviction and knows the legal defenses, at least some inquiry would be
helpful to ensure that the defendant truly understands the nature of
the charges against him. Further, neither the court nor the form
advised defendant of the penal consequences of conviction—up to 27
years to life in state prison—and nothing in the record on appeal
reveals such an advisement. Reviewing this record de novo and as a
whole, we cannot say that the waiver form, coupled with the court’s oral
inquiry, satisfactorily demonstrates that appellant’s request to
represent himself was knowing and voluntary.
Nor can we say that the advisements appellant received in the
trial court cured these deficiencies in the record. Because the waiver
occurred in the master calendar court, the trial court merely advised
appellant, in substance, that he would receive no special treatment, and
that he must comply with the rules of evidence and court decorum.
These advisements do not fill the holes left by the record of the master
calendar proceedings.
The decisions on which respondent relies—People v. Blair (2005)
36 Cal. 4th 686 (Blair), overruled on other grounds in People v. Black
(2014) 58 Cal. 4th 912, and People v. Miranda (2015) 236 Cal. App. 4th
978 (Miranda) —are distinguishable. In Blair, the court rejected the
defendant’s claim that his Faretta waiver was not knowing and
voluntary. The court explained that “the record is replete with
instances in which defendant was warned of the dangers and
15
disadvantages of self-representation, both orally and in writing, in both
the municipal and superior courts. For example, defendant was orally
warned that representing himself was unwise, that the prosecutor was
an experienced lawyer who would have an advantage over him, that as
an in propria persona defendant he would receive no special
consideration from the court, that he would be unable to claim
ineffective assistance of counsel on appeal, that as his own attorney it
would be difficult to be objective, and that a death penalty case involved
special risks. These oral advisements sufficed to apprise defendant of
the dangers and disadvantages of self-representation.” (Blair, supra, 36
Cal.4th at p. 708.) Some of the advisements were given only in the
written waiver form the defendant signed. The court reasoned that the
failure to orally advise the defendant about “these latter warnings . . .
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.” (Id. at p. 709.) Further noting that the defendant
had “demonstrated considerable legal knowledge, and had represented
himself at his previous trial on the attempted murder charges involving
the same underlying events,” the court concluded that the record
supported the conclusion that the Faretta waiver was knowing and
voluntary. (Ibid.)
16
Citing Blair, Miranda observed that “[w]hile 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.” (236 Cal.App.4th at p. 986.) In Miranda, after the
defendant initialed and signed the waiver form, he affirmed that he
wanted to represent himself, and answered yes when asked “whether,
by initialing and signing the form, he was telling the court that he
understood he had the constitutional right to an attorney and whether
he understood the dangers and disadvantages of representing himself.”
Finally, “[t]he court then asked: ‘And knowing all of those consequences
and what can happen to you, and the fact that you will not be given any
special consideration, and I personally advise you not to represent
yourself, you still want to represent yourself?”’ (Ibid.) The defendant
replied that he did, and the court granted the Faretta waiver.
On appeal, the appellate court reasoned in relevant part: “This
was not a case where the trial court relied solely on the waiver form.
After Miranda signed the form the trial court asked him whether by
signing and initialing the form he had in fact read and understood it.
Miranda answered yes. The court also asked Miranda whether he still
wanted to represent himself despite his knowledge, including the loss of
his right to counsel and the court’s advice that he not represent himself.
Miranda again answered yes. His statements to the court were clear
and direct and showed a strong desire to represent himself.” (236
Cal.App.4th at p. 986.)
17
In the present case, unlike Blair, the record is not “replete with
instances in which defendant was warned of the dangers and
disadvantages of self-representation, both orally and in writing, in both
the municipal and superior courts.” (Blair, supra, 36 Cal.4th at p. 708.)
Indeed, the record reveals that the court failed to engage in even the
minimal inquiry undertaken by the court in Miranda to ensure that
appellant’s decision to represent himself was knowing and voluntary.
Neither Blair nor Miranda stand for the proposition that when a
defendant signs a written Faretta waiver form, the court need only
conduct the kind of perfunctory proceeding that occurred in the master
calendar court here, in which the court merely advised appellant that
self-representation was unwise, and asked whether he initialed and
signed the form and whether he had any questions. Rather, even when
a waiver form is completed, the court’s duty remains to ensure that the
defendant’s waiver of the right to counsel is knowing and voluntary.
The record as a whole must demonstrate “‘“that the defendant
understood the disadvantages of self-representation, including the risks
and complexities of the particular case.”’” (Bush, supra, 7 Cal.App.5th
at p. 469; compare id. at p. 478 [record showed the defendant knowingly
and voluntarily waived counsel where, after receiving the written
waiver form, the court explained the risks, issued “repeated reminders
at 10 separate hearings,” and repeatedly offered to appoint a public
defender at each of those hearings]; People v. Fox (2014) 224
Cal. App. 4th 424, 426, 431, 437 [rejecting the defendant’s claim that he
did not knowingly and intelligently exercise his right to self-
18
representation, despite the trial court’s incorrect advice about one of the
counts, because after receiving the signed waiver form, the trial court
explained the disadvantages of self-representation and inquired into the
defendant’s educational and psychological background]; People v.
Conners (2008) 168 Cal. App. 4th 443, 454-455 [relying not only on the
written Faretta waiver form, but also on the “extensive colloquy” before
granting the Faretta motion and the “shorter colloquy with the trial
judge at the start of the trial,” to conclude “‘the record as a whole’”
showed the defendant “‘understood the disadvantages of self-
representation’”].)
In the present case, the record does not meet that test. The
master calendar court failed to ascertain on the record that defendant
actually read and understood the written Faretta form. The court failed
to inquire about ambiguities in the form regarding defendant’s
understanding of the nature of the charges against him. Nothing in the
record—not the oral proceedings or the written Faretta form—advised
defendant of the significant possible sentencing consequences of
conviction. Under these circumstances, reviewing the record de novo,
we do not have confidence that appellant was adequately made aware of
the risks and disadvantages of self-representation before his request to
represent himself was granted. And nothing that later occurred in the
trial court cures these deficiencies.
“[W]hen the record demonstrates that the trial judge neglected to
advise the defendant of the dangers and disadvantages of self-
representation as required by Faretta when the waiver is taken, but the
19
waiver of the right to counsel was voluntary, the courts have split on
the standard of reversible error: some have determined that the error is
structural and reversible per se; others have declared the error must be
found prejudicial under the Chapman v. California (1967) 386 U.S. 18,
24 test unless the error is harmless beyond a reasonable doubt.”
(Sullivan, supra, 151 Cal.App.4th at p. 551, fn. 10; see Bush, supra, 7
Cal.App.5th at p. 477.) Assuming that inadequate Faretta advisements
can be harmless in some circumstances where the waiver of counsel is
nonetheless voluntary, the record here fails to demonstrate beyond a
reasonable doubt whether appellant would have decided to represent
himself had he been properly advised.
Upon appearing in the trial department after the inadequate
inquiry by the master calendar court, appellant told the trial court, “I
don’t want to represent myself pro per. But I have no choice. I’ve been
in prison. I wanted a speedy trial. . . . I really would like someone with
some type of legal responsibility to represent me because now I have to
ask for a couple days to go over this to build a defense for me.” When
the court replied that “[a]ll that should have been taken care of in
Department D” and that the case would proceed to trial, appellant
protested that “I had no time to go over any paperwork, so if I can ask
for some time to go over paperwork, and come back [at] a later date so I
can have a defense. This is the first time I’ve seen paperwork regarding
this case at all. . . . [W]hat I mean by ready meant I was ready to go to
trial to defend myself with some type of legal help.” Given appellant’s
reluctance to represent himself in the trial department, it cannot be
20
said, beyond a reasonable doubt, that had he been properly advised of
the dangers and disadvantages of self-representation he would have
chosen to represent himself. Rather, the record indicates that
appellant’s request for self-representation was “made in passing anger
or frustration” about the need to continue the trial and that appellant
immediately expressed “ambivalence about self-representation.”
(Marshall, supra, 15 Cal.4th at p. 23; see Bush, supra, 7 Cal.App.5th at
p. 469 [on appeal, we examine the “‘entire record, including proceedings
after the invocation of the right to self-representation, [to] determine
. . . whether the defendant’s waiver of the right to counsel was knowing
and voluntary.’”].)
For the foregoing reasons, we conclude that appellant’s request for
self-representation was not knowing, intelligent, and voluntary.
DISPOSITION
The judgment is reversed.
CERTIFIED FOR PUBLICATION
WILLHITE, J.
I concur:
COLLINS, J.
21
EPSTEIN, P. J., Concurring in the Judgment.
The underlying facts in this case are recounted in the majority
opinion. Briefly summarized, they show that defendant had been
charged with corporal injury to a cohabitant and assault with force
likely to cause great bodily injury. He pleaded not guilty to these
charges and a deputy alternate public defender, Leslie Kelley, was
appointed to represent him. On September 30, 2015, the case was in
the criminal master calendar department for assignment to a trial
department and trial that day. Defendant appeared with another
alternate public defender who explained that Ms. Kelley was engaged in
trial. The deputy alternate public defender who made the appearance
asked that the case go over to October 6, 2015, by which time Ms. Kelley
would be available to try the case. The delay amounted to four court
days. When asked if he agreed to the postponement defendant replied
“no.” The court expressed willingness to postpone to October 6 for good
cause. At that point the deputy alternate public defender informed the
court that defendant “wants to go pro per and he wants to start today.”
The trial court responded, addressing defendant, “You are not that
stupid. You have one of the best lawyers in the county.” Defendant
replied, “You can’t keep me in jail for allegations. I have rights. You
are unconstitutionally keeping me in prison. You are violating my
rights to a speedy trial.” The trial court asked if any family member
was present in court, and defendant’s father announced his presence.
Addressing the father, and in defendant’s presence, the court said,
22
“Maybe you can talk to him. He wants to commit suicide. He has a
good lawyer. He doesn’t know how to be a lawyer. If he wants to I will
let him. If you want to talk to him, it’s up to you. You want to talk to
him?” Defendant’s father replied that he could talk to defendant but
that defendant “wants a speedy trial.” The trial court thanked the
father and passed the case until later in the calendar.
The court called the case back after a recess. By then defendant
had been provided with the form for waiver of counsel. With a single
exception, he checked boxes verifying that he had read and understood
the rights he would be giving up and the dangers of self-representation,
including the court’s advice that he not give up his right to
representation by counsel. Defendant acknowledged having read,
initialed and signed the waiver form, upon which the case was
transferred to another court for trial. (A copy of the form, as completed
and initialed by defendant, is appended here as Attachment A.) He was
not again asked if he understood what he was waiving.
The single exception on the completed form is with respect to the
“Charges and Consequences” part of the form, questions 4 through 7.
Question 4 of the form states, “I understand that I am charged with the
following crimes(s),” followed by two blank lines to be filled in.
Defendant did not fill them in. But he checked the “yes” box for the
next three questions, which asked if he knew the crimes which were
charged, including whether they were general or specific intent crimes,
knew what had to be proven for him to be found guilty, and knew the
legal defenses to those charges.
23
What is missing at this juncture and elsewhere on the form, is an
acknowledgment that defendant had been advised of the punishment he
faced if convicted of the charges. The maximum punishment was
complicated in this case because of enhancements based on defendant’s
prior record, including a prior prison term. There is nothing in the
record that states or incorporates some document that states, the
maximum prison time that could be imposed.
But for that omission, I see no basis for reversal.
Once in the trial courtroom defendant asked for more time to
prepare; that was denied because he had refused to waive time and had
demanded to go to trial that day. The waiver form acknowledged that
he had been specifically warned that “no continuance will be allowed
without a showing of good cause, and that such requests made just
before trial will most likely be denied.” (Item 3F on the waiver form.)
The case proceeded to trial, which resulted in defendant’s conviction of
the charges against him. There is no record that defendant sought to
withdraw his waiver of counsel or asked that counsel be appointed to
defend him. (He was represented by counsel in proceedings following
return of the guilty verdicts.)
The majority find fault with the trial court’s failure to ask
defendant if he understood what rights he was waiving. I do not agree.
He initialed specific references to waiving rights some 16 times, and he
dated and signed the final substantive paragraph, which reads “I
hereby certify that I have read, understood and considered and
voluntarily give up my right to have a lawyer represent me.”
24
Barring some showing that defendant was unable to understand
what he was signing or that he had changed his mind about self-
representation, this ought to be, and in my opinion is sufficient with
respect to the initialed items. The court was not required to
remonstrate with defendant about his choice so long as it was
reasonably satisfied that defendant understood what he was giving up
and the risks of self-representation. The printed form sets most of this
out in plain language, avoiding legalese. Beyond that, the court made it
clear that it believed defendant was making a mistake: it warned that
waiver of counsel was unwise and more (“You are not stupid”), that in
doing so defendant was likely to be convicted (“he wants to commit
suicide”; “[h]e doesn't know how to be a lawyer”), but defendant
persisted. The trial court’s phrasing may have been inelegant, but it
was clear and pointed. “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.”
(People v. Miranda (2015) 236 Cal. App. 4th 978, 986, and cases cited.)
It surely would be unusual if defense counsel had not advised
defendant of the punishment he was facing if convicted on all charges.
The law is not yet settled on the extent to which the record must show
that a defendant was informed of the punishment he or she faced if
convicted. (Compare People v. Bush (2017) 7 Cal.App.5th 457, 468–473;
People v. Sullivan (2007) 151 Cal. App. 4th 524, 545; People v. Jackio
(2015) 236 Cal. App. 4th 445, 453; People v. Conners (2008) 168
25
Cal. App. 4th 443, 455.) The correct rule, in my opinion, is that the record
must reflect that the defendant is aware of the magnitude of the penalty,
at least in terms of prison time, that may be imposed if found guilty of
the charges. Since it does not, I agree that reversal is required.
EPSTEIN, P. J.
26
ATTACHMENT A
27
28
29
30
31