People v. Berry CA4/2 ( 2024 )

Filed 1/8/24 P. v. Berry CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079431
v. (Super.Ct.No. INF2100060)
JOSEPH RYAN BERRY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Rene Navarro, Judge.
Reversed.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, and Christopher P. Beesley and
Michael J. Patty, Deputy Attorneys General, for Plaintiff and Respondent.
1
After two trials in which Joseph Ryan Berry represented himself, a jury convicted
him of making criminal threats. On appeal, Berry argues the trial court erred when it
granted his self-representation request.1 We reverse.
BACKGROUND
In January 2021, the Riverside County District Attorney charged Berry with
making a criminal threat after Berry threatened a mechanic over the phone. (Pen. Code2,
§ 422.)
The next month, before the preliminary hearing, Berry moved to represent himself
under Faretta v. California (1975) 422 U.S. 806 (Faretta). In doing so, Berry initialed
and signed a “Petition to Proceed in Propria Persona” form, also known as a Faretta
waiver. This form informed Berry that he had a right to a lawyer, that one would be
provided to him if he could not afford to hire one himself, that by waiving his right to
counsel he also waived his right to appeal on the basis of ineffective assistance of
counsel, that he would have “to follow all of the many technical rules of substantive law,
criminal procedure and evidence,” that the prosecution would be represented by an
experienced and specialized lawyer, and that he would have to conduct every phase of
trial including making pretrial and preliminary motions, impaneling the jury, making
opening and closing statements, examining witnesses, making objections, and handling
1 In his opening brief, Berry also argued the court erred by denying as untimely a
request for diversion. Following People v. Braden (2023) 14 Cal.5th 791⸺Penal Code
section 1001.36 diversion requests must be made before jeopardy attaches⸺he withdrew
this argument.
2 Unlabeled statutory citations refer to the Penal Code.
2
jury instructions. It also included the “advice and recommendation of this court that” he
not represent himself. Berry initialed each admonition and signed.
At the hearing on his request, Berry did not start by declaring that he wanted to
represent himself. Rather, Berry said he wanted to fire his public defender because of a
conflict of interest. When asked to explain what conflict there was, Berry stated, “to the
courts, I am a threat to the public. On paper it says the public defender is . . . defending
the public. So obviously it’s self-explanatory.” The court told him that if there was a
conflict, and the public defender agreed, it could appoint an attorney from the conflict
panel who would represent Berry. Berry responded, “if that’s the procedure, let’s do it.”
The court then explained the conflict panel procedure. Berry asked when he could start
that procedure because “I’ve been down two weeks already, and . . . I’ve waived no
time.”
The public defender told the court that their office did not have a conflict of
interest with Berry. He expressed his belief that Berry “does not want to necessarily
represent himself, but he would like me to no longer be his lawyer.” The court then
acknowledged that though there may not be a conflict of interest, Berry’s claims
indicated there had been a breakdown of communication that would justify relieving the
public defender’s office.
At this stage of the hearing, Berry had not made a request to represent himself, and
the trial court asked Berry if he wanted an attorney from the conflict panel. Rather than
answer, Berry requested a bail reduction, which the court said it would not consider at
3
that time. At that point, Berry said, “[w]ell, I would like to not waive any time and push
forward with pro per.” The court told Berry he was not waiving any time either way,
then asked if he would be ready for the preliminary hearing set for the next week. Berry
responded, “it’s not a rocket science case here. All you’ve got to do is subpoena the
phone records, and it will tell you that I never threatened the man.” The court asked
Berry again whether he would be ready, and Berry responded, “I’m ready to push
forward on my right to a speedy trial.”
The court indicated it would be willing to grant his request to represent
himself, and that it would not change the preliminary hearing date. However, the
court advised Berry that “it doesn’t appear to me that you’re going to be ready to do
the preliminary hearing next week.” Berry insisted he was ready, and the court
responded, “that might be what you feel now, but once you do the preliminary hearing if
you’re . . . held to answer . . . you might feel differently.” It then asked whether Berry
had ever represented himself before, and Berry said he had not.
The court reiterated that it could appoint a conflict panel attorney for Berry, “[a]nd
then if you still feel that you want to represent yourself, you can.” Berry responded, “[i]f
that’s the procedure, that’s fine, but come that day, I will go pro per.” The court asked
him to repeat himself, and Berry responded simply, “I’m going to go pro per.” The court
then granted his request to represent himself.
Berry had his first trial in July 2021, but the jury was unable to reach a verdict. In
September 2021, following a second trial, the jury convicted Berry on the sole count.
4
Berry requested and received a public defender for the sentencing phase. In
May 2022, Berry filed a motion for new trial arguing the court’s decision to grant his
request to represent himself was error. The trial court denied the motion.
DISCUSSION
Berry argues his Faretta waiver was equivocal and the court failed to advise him
properly of the consequences of his decision. He also argues this error is per se
reversible. We agree the court’s advisement to Berry was inadequate, and we cannot find
the error harmless beyond a reasonable doubt.
“A criminal defendant has a right to represent himself at trial under the Sixth
Amendment to the United States Constitution.” (People v. Welch (1999) 20 Cal.4th 701,
729 (Welch).) To do so, defendant must meet three conditions: “[f]irst, the defendant
must be mentally competent, and must make his request knowingly and intelligently,
having been apprised of the dangers of self-representation. [Citations.] Second, he must
make his request unequivocally. [Citations.] Third, he must make his request within a
reasonable time before trial.” (Ibid.) On appeal, “[c]ourts must indulge every reasonable
inference against waiver of the right to counsel.” (People v. Marshall (1997) 15 Cal.4th
1, 20.)
In this appeal, there is no dispute that Berry was mentally competent when he
made his request, and that his request was made a reasonable time before trial. We
conclude, however, that Berry was not adequately advised of the dangers of self-
representation.
5
A. Advisement of the Dangers of Self-Representation
We conclude that Berry did not make his request to represent himself knowingly
and intelligently, having been advised of the dangers of self-representation. Before a
defendant may waive his right to counsel, he “ ‘ “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.’ ” ’ ” (People v. Burgener
(2009) 46 Cal.4th 231, 241 (Burgener).) Some cases have suggested a set of four general
advisements, all of which appeared on the waiver form Berry signed. These are (1) “that
self-representation is almost always unwise,” (2) that the defendant will not be given any
special treatment and will have to follow all the same rules as a lawyer, (3) that the
prosecution will be represented by an attorney, and (4) that the defendant will not receive
special library privileges or extra time and will not have a staff of investigators available.
(People v. Lopez (1977) 71 Cal.App.3d 568, 572-573 (Lopez).)
Nevertheless, that set of advisements is not mandatory. “ ‘ “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.” ’ ” (Burgener, supra,
46 Cal.4th at p. 241.) “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.’ ” (Ibid.) “On appeal, we independently examine the entire record to
6
determine whether the defendant knowingly and intelligently waived the right to
counsel.” (Ibid.) In some cases, it may be that the signing of the written waiver of rights
alone—particularly if the defendant’s understanding of them is confirmed by the trial
court—could be sufficient to establish a knowing and intelligent waiver. (People v.
Miranda (2015) 236 Cal.App.4th 978, 986; citing People v. Blair (2005) 36 Cal.4th 686,
709 (Blair), disapproved on other grounds in People v. Black (2014) 58 Cal.4th 912, 919-
920.)
Here, however, we are not persuaded the trial court adequately warned Berry of
the pitfalls of self-representation. Because self-representation is typically an unwise
choice, and because inexperienced defendants may not be aware of the challenges they
will face, a court should be pointed and definitive in warning a defendant about the
dangers of self-representation. (See Von Moltke v. Gillies (1948) 332 U.S. 708, 724
[requiring a “penetrating and comprehensive examination”]; People v. Waldron (2023)
14 Cal.5th 288, 305 (Waldron) [serious and weighty responsibility on judge to ensure
“knowing and voluntary” waiver of counsel].) Trial courts often provide direct warnings
to defendants considering self-representation that conspicuously explain what the
difficulties will be. In People v. Koontz (2002) 27 Cal.4th 1041, 1071, for example, our
Supreme Court found sufficient an advisement that included telling the defendant (a) that
“ ‘it is generally not a wise choice to represent yourself in a criminal matter. . . . I just
said that as strongly as I could say it’ ” (ibid.); (b) the penalties the defendant faced;
(c) that the judge cannot help him and give him “ ‘special treatment’ ” (id. at p. 1072);
7
(d) that he will be “ ‘opposed by a trained prosecutor’ ” and have to “ ‘comply with all
the rules of criminal procedure and evidence just as an attorney must . . . unless you have
been practicing law for some time, you wouldn’t know many of them” (ibid.); and
(e) that the court had “serious questions” (ibid.) about the defendant’s competency to
represent himself but that the defendant could not appeal on such a basis.
Berry initially said, “let’s do it” when the court suggested appointing panel
counsel—the opposite of a self-representation request, coming moments before that
request. His public defender at the time said that he believed that Berry “does not want to
necessarily represent himself.” When again asked if he wanted panel counsel, Berry
neither answered directly nor asserted a desire to represent himself. He thereafter
indicated he wished to “push forward with pro per,” stating it would not be “rocket
science.”
At that point, the court responded that it would be willing to grant the self-
representation request, but advised Berry that it did not think he was prepared for the
preliminary hearing. The court did not address Berry’s belief that it would not be “rocket
science” to represent himself with any specific information about what Berry would need
to do, though it told Berry that he might regret his decision. The court confirmed he had
no prior experience representing himself, but it again did not explain the difficulties of
doing so against a trained lawyer. The court did not meaningfully inquire into whether
Berry understood all the challenges he faced, and it made no strong statement about the
inadvisability of self-representation.
8
Similarly scant and generalized oral advisements have been held insufficient to
demonstrate a defendant’s actual knowledge of the consequences—even when paired
with a sufficient written advisement. For instance, in People v. Ruffin (2017) 12
Cal.App.5th 536, 545 (Ruffin), the Court of Appeal concluded a defendant did not make a
knowing and intelligent waiver in part because the “court’s oral comments advised
appellant, in substance, that it was unwise for him to represent himself . . . . But the court
did not give any other oral advisements.” (Id. at p. 546.) Ruffin also rejected the notion
that signing a waiver form containing the suggested advisements cured the defects in the
court’s oral advisements. In that case, as in this one, “[t]he 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.” (Ibid.) Therefore, as in Ruffin, we
conclude that “[r]eviewing 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.” (Ibid.)
The People distinguish Ruffin on the ground that the defendant’s waiver in that
case was equivocal as well as poorly informed. The defendant there told the court he did
not actually want to represent himself but felt obligated to. (Ruffin, supra, 12
Cal.App.5th at p. 542.) Also, the defendant in Ruffin did not properly fill out his written
waiver, providing some evidence that he did not read and/or understand the form, and
that he did not understand the charges against him. (Id. at pp. 546-547.)
9
In our view, these differences arguably show that this is a closer case than Ruffin,
but they do not undermine the bottom-line conclusion that Berry was insufficiently
advised. Here, as in Ruffin, the court failed to adequately advise the defendant of the
consequences of self-representation except to generally suggest it was not advisable.
Here, as in Ruffin, the court failed to meaningfully inquire into the defendant’s subjective
understanding of those consequences. And here, as in Ruffin, the court did not confirm
the defendant had read and understood the advisements in the written waiver. Moreover,
at the hearing here, the defendant did not immediately seek self-representation and
instead the court explored appointing conflict counsel—without ever returning to the
warnings or advisements in the pre-hearing written waiver form. The factors Ruffin
turned on lead us to the same conclusion as in that case.
The People also cite Blair for the proposition that written advisements can suffice
to establish knowing and intelligent waiver where there is no reason to believe the
defendant misunderstood those written advisements. Blair is distinguishable. In that
case “the record [was] 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. 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
10
to be objective, and that a death penalty case involved special risks.” (Id. at p. 708.) The
court concluded, “[t]hese oral advisements sufficed to apprise defendant of the dangers
and disadvantages of self-representation.” (Ibid.) In addition to those oral
advisements—which were sufficient on their own—the defendant was also advised in
writing “that he would have to handle pretrial, trial, and many posttrial matters himself
without the assistance of an attorney, and that he would have to comply with all
substantive and procedural rules.” (Ibid.) The court held that under these circumstances
the fact “these latter warnings and understanding were expressed only in writing makes
no difference,” and that the failure to also offer this advice orally “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.” (Id. at p. 709.)
Moreover, the defendant in Blair “demonstrated considerable legal knowledge, and had
represented himself at his previous trial on the attempted murder charges involving the
same underlying events.” (Ibid.)
The circumstances here are different from those in Blair. Berry was not orally
advised of any of the risks of self-representation, except for a general warning that he
might regret his decision. Instead, the only specific, substantive warnings he received
were in the Faretta waiver. Berry had never represented himself before, unlike the
defendant in Blair. He did not otherwise demonstrate any meaningful proficiency with or
understanding of the relevant substantive or procedural law—again, unlike the defendant
in Blair. The closest Berry came to expressing any level of legal knowledge was
11
explaining his belief that his case was not “rocket science” and that subpoenaed phone
records would establish a defense. But his belief that his case was simple, his
understanding that subpoenas are used to obtain third party records, and his belief that
these records would exonerate him, are not enough to establish that he understood the
challenges he would face or the consequences of proceeding without a lawyer.
Therefore, after reviewing the entire record, we conclude Berry’s waiver of his
right to counsel was not knowing and intelligent. Though there is no hard-and-fast rule
about what a court must do to establish a defendant’s waiver is knowing and intelligent,
the minimal and generalized oral advisements in this case, even when coupled with
detailed pre-hearing written advisements, were insufficient to show Berry understood the
consequences of his decision. Important to creating doubt that Berry absorbed the earlier
written advisements is that at the hearing Berry initially focused on firing his lawyer
rather than representing himself, and his attorney said that was Berry’s interest.
B. Prejudice
Having concluded the trial court erred in granting Berry’s request to represent
himself without first adequately advising Berry in a way that ensured the request was
knowing and intelligent, we must determine whether this error was prejudicial.
Some errors related to Faretta are structural errors that warrant automatic reversal.
The erroneous denial of a timely, unequivocal request for self-representation is per se
reversible. (Welch, supra, 20 Cal.4th at p. 729.) So is granting a Faretta waiver where
there is a judicial finding that the defendant is not competent to make such a waiver.
12
(Waldron, supra, 14 Cal.5th at p. 309.) But these cases do not mean that any error
relating to the granting or denying self-representation is a structural error that is
automatically reversible. (See Weaver v. Massachusetts (2017) 582 U.S. 286, 295-296
[structural errors relate to the framework of the trial and tend to protect an interest other
than erroneous conviction where the effects of the error are hard to measure].)
Where a court’s Faretta advisement is “inadequate,” People v. Bush (2017) 7
Cal.App.5th 457, 475-477 (Bush) held that a harmless error standard was appropriate.
Bush agreed with the reasoning in People v. Cervantes (1978) 87 Cal.App.3d 281, 292-
293 (Cervantes) in holding that the situation of inadequate Faretta warnings differs from
a per se reversal situation where a defendant is not advised of his right to counsel and
does not waive his right at all. (Bush, at pp. 476-477.) The view from Bush and
Cervantes that harmless error applies to inadequate Faretta warnings has been the
prevailing view of California courts for more than two decades. (See People v. Sohrab
(1997) 59 Cal.App.4th 89, 99 [noting that as of 1997 “the majority of California courts
have concluded,” that error in granting a voluntary Faretta waiver “is subject to harmless
error analysis”], disapproved on other grounds in People v. Crayton (2002) 28 Cal.4th
346, 366, fn. 10.)
At least one case has recognized a “split” in the caselaw whether a failure to warn
“of the dangers and disadvantages of self-representation as required by Faretta when the
waiver is taken,” with some courts finding the error per se reversible. (People v. Sullivan
(2007) 151 Cal.App.4th 524, 551, fn. 10.) But the two California cases identified as
13
requiring per se reversal do not provide reasoned analysis applicable to a situation of a
voluntary Faretta waiver taken with inadequate warnings.
The first, People v. Hall (1990) 218 Cal.App.3d 1102, held that per se reversal is
required where “there is a complete absence of a waiver of the right to counsel and of any
self-representation warnings.” (Id. at pp. 1108-1109.) That is not the situation we have
of a waiver taken but with inadequate warnings.
The second, Lopez, supra, 71 Cal.App.3d 568, is much more applicable. Lopez
did involve an inadequate warning, and it did conclude this was per se reversible. Thus,
this 46-year-old case appears to be the only one squarely on the other side of a split with
cases like Bush and Cervantes. But Lopez’s analysis of the prejudice standard was a
single sentence that cited to a case in which a court denied a juvenile defendant the right
to have his counsel present argument at all. (Lopez, at p. 571, citing In re William F.
(1974) 11 Cal.3d 249.) This is not persuasive reasoning as to why our situation would
likewise require per se reversal.3
We are persuaded by Bush and Cervantes that the harmless error standard
applies here. Specifically, we agree with Cervantes’s reasoning “that some standard of
review short of an automatic reversal should be applied in order to inject more fairness
into a defendant’s game of ‘waive the lawyer.’ The effect of a reversal per se rule
under circumstances where defendant may otherwise have a lost cause is not
compatible with maintaining an efficient and economical system.” (Cervantes,
3 Lopez is from this division, but we do not appear to have relied on it during the
past 46 years and do not do so now.
14
supra, 87 Cal.App.3d at p. 293.) Moreover, as Bush points out, the denial of a
request for self-representation is already per se reversible, and “if an erroneous denial of
a self-representation request—where the issue of the defendant’s knowledge or
understanding is a close question—is reversible per se, and if the erroneous granting of
such a request—where the admonition is incomplete rather than completely absent—is
also reversible per se, the trial court is left with the narrowest of channels along which to
navigate the shoals of possible error.” (Bush, supra, 7 Cal.App.5th at p. 476, italics
omitted.) In addition, a per se reversal rule “ ‘could produce some strange results. For
example, suppose that a defendant does not validly waive counsel at sentencing but is
given the mandatory minimum sentence prescribed by statute. . . . In this case, must the
sentence to be vacated and the case remanded so that the very same sentence can be
imposed with counsel present?’ ” (Id. at p. 476.) In our view, the general rule that a
defendant is entitled to a fair trial, not a perfect one, applies here. (See People v.
Cunningham (2001) 25 Cal.4th 926, 1009.)
Under the harmless error standard as set forth under Chapman v. California (1967)
386 U.S. 18, 22-24 (Chapman), “ ‘[t]he question is whether, “on the whole record . . . the
error . . . [is] harmless beyond a reasonable doubt.” ’ ” (People v. Wilder (1995) 35
Cal.App.4th 489, 496.) In other words the “ ‘test is whether it appears “beyond a
reasonable doubt that the error complained of did not contribute to the verdict
obtained.” ’ ” (Id. at p. 502.)
15
Here, we cannot say that the failure to advise Berry was harmless beyond a
reasonable doubt. Instead, we conclude it is reasonably plausible that additional, pointed
advisements might have persuaded Berry to have a lawyer appointed, and that had he
been represented the outcome of his case might have been different.
First, though Berry ultimately clearly stated that he wanted to represent himself,
he initially was receptive to switching to a panel counsel (“let’s do it”) instead of his
public defender, whose view was that Berry wanted not to be represented by him but
did not want to represent himself. He thus did not appear to come into the hearing
with self-representation as his paramount aim. When told about the procedure for
switching to panel counsel, Berry seemed concerned about speed rather than desiring to
represent himself for some other reason, responding “I’ve been down two weeks already,
and . . . I’ve waived no time.”
It was only after the court refused to hear Berry’s request for a bail reduction that
Berry insisted he wanted to represent himself rather than have another attorney
appointed. Even then, Berry tied his self-representation request to saving time, stating “I
would like to not waive any time and push forward with pro per.” Throughout the
colloquy with the court, Berry kept returning to the fact that he had not and would not
waive any time, including insisting that the court not continue the imminent preliminary
hearing. When asked whether he would be ready for that hearing, Berry did not respond
that he felt he was competent and prepared to represent himself, instead saying “I’m
ready to push forward on my right to a speedy trial.” The only time Berry rejected the
16
idea of having appointed counsel was at the end of the colloquy, when he told the court
that it could appoint counsel if it wished, but that he would then seek to represent himself
again.
Thus, it appears that though Berry ultimately clearly stated he wanted to
represent himself, this desire was solidified during the hearing rather than unequivocal
before it. The record suggests Berry’s primary motivation was not an independent
desire to represent himself, but that he believed representing himself would get him out
of custody faster. Moreover, Berry expressed multiple mistaken beliefs about the
process—including the belief that the public defender had a conflict of interest when
none existed—which led him to seek to represent himself. In this situation, it is plausible
that pointed warnings to Berry could have affected his decision. For instance, advising
Berry that representing himself at the preliminary hearing meant he was risking even
more pre-trial detention, and that self-representation was not generally a way to get his
case done quickly, might have convinced him to take the offered lawyer. Also,
specifically and directly confronting his mistaken belief that trying a case as a non-lawyer
was not “rocket science” might have affected his decision.
Second, the fact Berry’s first trial ended in a hung jury is persuasive evidence that
the outcome of his case was in doubt, and therefore representation might have changed it.
We cannot know whether an attorney would have been able to turn the hung jury into an
acquittal, but the hung jury indicates that the case was not overwhelming. That fact sows
enough doubt that we cannot say the deprivation of counsel was harmless. We do not
17
have the trial record, and we acknowledge that, in that vacuum, the hung jury could be
read to mean the exact opposite: that in fact counsel was unlikely to change anything
because Berry was such an effective advocate for himself that he achieved a hung jury
despite strong evidence. But we need not decide which of these alternatives is true, or
even most compelling. Under Chapman, it is enough that a plausible alternative to
conviction exists absent the error to make it reasonably doubtful the error was harmless.
Thus, the trial court erred by inadequately advising Berry of the dangers of self-
representation before granting his Faretta waiver, and we cannot say this error was
harmless beyond a reasonable doubt. Accordingly, we reverse the judgment.
DISPOSITION
We reverse the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
CODRINGTON
Acting P. J.
FIELDS
J.
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