People v. Carter ( 1967 )

MOSK, J.

Once again the failure of a trial court to navigate adroitly between the Scylla of denying a defendant the right to determine his own fate and the Charybdis of violating his right to counsel by acceptance of an ineffectual waiver has brought a prosecution to grief.

Defendant appeals from judgments of conviction of kidnaping for the purpose of robbery (Pen. Code, § 209) and robbery while armed with a deadly weapon (Pen. Code, § 211a). Defendant argues, inter alia, that his waiver of counsel at trial was conditional and that the failure of the trial court to accept the condition or advise defendant at the time of his purported waiver that it intended to reject the condition was error which deprived defendant of his constitutional right to counsel. We have concluded that defendant did not effectively waive his right to counsel, and since the trial proceeded without counsel, the judgments of conviction must be reversed.

Defendant, with one Russell Gordon, was charged in count I of an information with kidnaping Homer Coran on May 29, 1965, for the purpose of robbery, and it was alleged that at the time of the commission of the offense defendant and Gordon were armed with a deadly weapon. In count II defendant, with Russell Gordon, was charged with robbing Homer Coran of $59 on May 29, 1965, and it was alleged that at the time of the commission of the offense defendant and Gordon were armed with a deadly weapon. Defendant is the only party with whom we are here concerned.

In the four months prior to trial, defendant was granted numerous continuances and changes of counsel. On October 19, 1965, the ease was called and defendant’s attorney moved to be relieved and further moved that defendant be substituted in propria persona. Defendant joined in the motion and it was granted. The district attorney thereupon reminded the trial court that the law requires some form of inquiry to be made as to defendant’s ability to defend himself before an effective waiver can occur, and undertook to question defendant as follows:

“Mr. Ross [deputy district attorney] : Mr. Carter, what is your age, sir ? The Defendant : Thirty. Mr. Ross: And what schooling have you-had? The Defendant: High school graduate. Mr. Ross: You are a high school graduate. Have you had any college courses of any kind? The Defendant: No. Mr. Ross: Where did you go to school ? The Defendant : St. Louis, Missouri. Mr. Ross : Do you feel that you are capable of representing yourself? The Defendant: Yes, I do, if I am granted the use of the law library. Mr. Ross: Do you know what crimes you are charged with? The Defendant: Yes, I do. Mr. Ross: What crimes are you charged with? The Defendant: Robbery and Kidnapping, Grand Theft. Mr. Ross : You understand what the crime of Robbery is ? The Defendant : Yes. Mr. Ross: You understand what the crime of Kidnapping is; is that correct? I have no other questions. If the Court feels he is capable—The Court : Very well. He is capable of defending himself. All right. We are ready to proceed. (Whereupon, the following proceedings were had in open court:) The Court : Will the clerk please swear in the panel. (Whereupon, the jury panel was duly sworn to answer questions touching upon their qualifications, following which 12 names were called by the clerk.) The Court : Well, ladies and gentlemen of the jury panel, I will address my remarks to the jurors whose names have been selected, and then ask the other members of the panel to listen to the explanation of the ease and also the questions that will be asked of these jurors, so, in the event you occupy a position in the jury box, it will not be necessary to repeat the information or the questions. Can the lawyers approach the bench. (Whereupon, the following proceedings were had at the bench outside the hearing of the jury:) The Court : You want a motion ? The Defendant : Yes. I wanted a motion—time to go to the law library to review this case before I went to trial. That’s what I ashed for. I ashed for it in court before I came here and I would ask for the same thing here. I want to go pro. per., but I wanted permission to use the law library. The Court : What is it you want to look up in the law library ? Maybe we can get it for you. The Dependant : I wanted to review my case. I want to prepare my case. This is the first time I had my transcript in my hand. Mr. Ross: Your Honor, this case originally came from ‘A’. The Court: I think it’s too late. Let’s see. You were arraigned on June 1 and you were notified at that time to have your lawyer. You said you would. The case was set for trial. The Dependant: I couldn’t continue to pay him and I dismissed the lawyer. This is the first time I have had my transcript, and if I could possibly prepare myself for the case—The Court: You heard everything at the preliminary hearing. That’s all that is in the transcript, is just what you heard. There isn’t anything different in there. The Depend-ant: I still don’t feel as though I can go in as short a time without my transcript. The Court: Motion is denied. Very well. The Dependant : I would like to put on the record that it is impossible for me to defend myself pro. per. without permission of the law library. ” (Italics added.)

Thereupon trial was resumed with defendant steadfastly refusing to participate because of the court’s failure to meet the condition of his waiver. Subsequently, defendant was Found guilty of all crimes charged and sentenced to state prison.

Speaking of the right to counsel and the effective waiver thereof, we declared in People v. Douglas (1964) 61 Cal.2d 130, 434-435 [38 Cal.Rptr. 884, 392 P.2d 964]: “ ‘The right to sounsel is a fundamental constitutional right, which has been ;arefully guarded by the courts of this state.’ (In re James, 38 Cal.2d 302, 310 [240 P.2d 596].) Meaningfully applied, the right to counsel includes the opportunity to receive ‘effective lid in the preparation and trial of the case.’ (Powell v. Alabama, 287 U.S. 45, 71 [77 L.Ed. 158, 172, 53 S.Ct. 55, 84 A.L.R. 527] ; People v. Mattson, 51 Cal.2d 777, 790 [336 P.2d 937].) To be sure, this right may be waived (Johnson v. Zerbst, 304 U.S. 458, 465 [82 L.Ed. 1461, 1467, 58 S.Ct. 1019, 146 A.L.R. 357, 362]; People v. Rocco, 209 Cal. 68 [285 P. 104]), but ‘a finding of waiver is not lightly to be made.’ (Moore v. Michigan, 355 U.S. 155, 161 [2 L.Ed.2d 167, 172, 78 S.Ct. 191].) ‘It has been pointed out that “courts indulge rvery reasonable presumption against waiver” of fundanental constitutional rights and that we “do not presume icquiescence in the loss of fundamental rights.” A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. ’ (Johnson v. Zerbst, supra, 304 U.S. at p. 464 [82 L.Ed. at p. 1466, 58 S.Ct. 1019, 146 A.L.R. at pp. 361-362].) These principles are ”equally applicable to asserted waivers of the right to counsel in state criminal proceedings.’ (Carnley v. Cochran, 369 U.S. 506, 515 [8 L.Ed.2d 70, 77, 82 S.Ct. 884].) Not only must the waiver be unqualified, but it may be made only by a defendant who has been apprised of his rights and who has ‘an intelligent conception of the consequences of his act. ’ (In re Tedford, 31 Cal.2d 693, 695 [192 P.2d 3].) ”¹

In the present matter there was no effective waiver of the right to counsel. Manifestly, a waiver of counsel which is made conditional by a defendant cannot be effective unless the condition is accepted by the court. Here it is clear from the record that defendant’s willingness to proceed without counsel was predicated upon his mistaken belief, reinforced by the failure of the trial judge to promptly and unequivocally reject the condition imposed by defendant, that he would be permitted some sort of meaningful access to and use of library facilities.

While we adhere to the view expressed in People v. Douglas (1964) supra, 61 Cal.2d 430, 435, that “the right to counsel may not be used to subvert the orderly and efficient administration of justice (People v. Thomas, 58 Cal.2d 121, 131 [23 Cal.Rptr. 161, 373 P.2d 97] ; United States v. Bentvena, 319 F.2d 916, 936), and its utilization as a tool for dilatory purposes may not be permitted (People v. Adamson, 34 Cal.2d 320, 332-333 [210 P.2d 13].),” we find the eases cited by the People to be distinguishable. In People v. Thomas (1962) 58 Cal.2d 121 [23 Cal.Rptr. 161, 373 P.2d 97], the defendant, although not a lawyer, was well versed in criminal procedure and represented himself competently throughout the trial. Moreover, unlike the present matter, the defendant in Thomas was permitted many hours in the law library to prepare his case. Further, we noted in Thomas that our holding was applicable to “A defendant who, with an intelligent conception of the consequences of his act, declines the aid of counsel. . . .” We believe the defendant here was unaware of the true consequences of his purported waiver, as he believed he would be permitted reasonable use of library facilities. His conduct throughout the trial was consistent with that belief.

Also distinguishable is People v. Ortiz (1961) 195 Cal.App.2d 112 [15 Cal.Rptr. 398], wherein the defendant was granted precisely that which defendant here was denied, “a couple of weeks” to prepare for trial in propria persona. People v. Nunn (1963) 223 Cal.App.2d 658 [35 Cal.Rptr. 884], involved a nonindigent, who despite repeated warnings and continuances by the trial court apparently refused to employ private counsel. Moreover, the defendant was well aware that if he “did not come in with counsel” he should be prepared to try the case. Similarly, in People v. Smith (1963) 223 Cal.App.2d 394 [36 Cal.Rptr. 119], the defendant discharged his original attorney and sought appointment of new counsel in the middle of the trial and after the prosecution had rested its ease in chief.

We find no merit in the People’s speculation that “appellant seemed to reject a proffered chance to use the library.” It appears from the transcript² that the court was offering defendant merely a brief tour of a library, rather than an opportunity to make appropriate use of its facilities or to study the preliminary transcript in conjunction with those facilities.

Although the question here presented is not whether defendant in fact had a right to use library research facilities but whether an unconditional waiver was made, it is appropriate to comment upon the former issue for purposes of retrial. (Code Civ. Proc., § 53.) We held in In re Allison (1967) ante, pp. 282, 289 [57 Cal.Rptr. 593, 425 P.2d 193], that “There is no statutory right to engage in [legal] research; nor is there any constitutional duty laid upon the states to provide facilities for that purpose, so long as access to the courts is not thereby unreasonably impeded.” (See also Hatfield v. Bailleaux (9th Cir. 1961) 290 F.2d 632.) In Allison, however, we further noted with approval that inmates of California prisons enjoy the use of law library facilities where available. It follows that a prisoner awaiting trial who wishes to represent himself should likewise, at a minimum, be allowed reasonable access to such legal materials as are available at the facility in which he is confined. Having thus stated the minimum requirements, we leave to the sound discretion of the trial judge the implementation of the rule, noting only that in many felony cases the minimum may not be sufficient.³

Finally, although every defendant in a criminal case has the constitutional right to represent himself if he so elects (Cal. Const., art. I, § 13; People v. Harmon (1960) 54 Cal.2d 9, 15 [4 Cal.Rptr. 161, 351 P.2d 329]; People v. Mattson (1959) 51 Cal.2d 777, 788-789 [336 P.2d 937]; People v. Shields (1965) 232 Cal.App.2d 716, 722 [43 Cal.Rptr. 188] ; People v. Shroyer (1962) 203 Cal.App.2d 478, 482 [21 Cal.Rptr. 460]), before his waiver of counsel may be accepted the trial court is duty bound to determine his competency to represent himself. (See, e.g., In re Johnson (1965) 62 Cal.2d 325, 335-337 [42 Cal.Rptr. 228, 398 P.2d 420], and eases there cited.) As stated in Johnson (at p. 335), “ ‘the court cannot accept a waiver of counsel from anyone accused of a serious public offense without first determining that he “understands the nature of the charge, the elements of the offense, the pleas and defenses which may be available, or the punishments which may be exacted [quoting from In re James (1952) 38 Cal.2d 302, 313 [240 P.2d 596]].” ’ ” The inquiry into the defendant’s ability to defend himself fulfills a two-fold purpose. It serves not only to determine his competence, but also to alert him to the seriousness of the action he contemplates as well as the pitfalls he may expect to encounter.

This determination involves an exercise of discretion by the trial judge which, in the absence of a showing of abuse, will not be disturbed on appeal. (See, e.g., People v. Shroyer (1962) supra, 203 Cal.App.2d 478, 482-483; People v. O’Ward (1959) 168 Cal.App.2d 127, 131 [335 P.2d 762] ; People v. Loignon (1958) 160 Cal.App.2d 412, 417 [325 P.2d 541].) The scope of the inquiry will, of course, vary according to the seriousness of the crime charged, On the basis of the excerpts from the transcript set out hereinbefore, we entertain grave doubts as to the sufficiency of the court’s cursory inquiry into defendant’s competency to represent himself in this case.

We do not mean to imply that the trial judge must impart a legal education to a defendant seeking to appear in propria persona. Nor need such a defendant possess the knowledge and understanding of an attorney (see People v. Linden (1959) supra, 52 Cal.2d 1, 17) ; indeed, it is the very discrepancy between the legal skills of the layman and those of the licensed practitioner which fosters our deep concern to protect the right to the assistance of counsel against hasty and improvident waiver. However, in reviewing a trial judge’s determination of a defendant’s competence to represent himself, we will not accept a mere superficial inquiry.

The judgments are reversed.

Traynor, C. J., Peters, J., Tobriner, J., Burke, J., and Sullivan, J., concurred.

1 The entire area of an accused’s right to proceed without counsel is discussed in an excellent Note in 49 Minn. L. Rev. 1133 (1965).

2 After the trial was under way, the following occurred:

“The Court: You want to see the law library. We will make some arrangements. I have asked you if there is anything in the law library you want. We will try to get someone to get it for you, and also I will take you in during the recess and let you go through the law library. If that isn’t enough, we will try and make some other arrangements for you. Every concession that we can possibly make has been made to you.

“The Defendant: I don’t think 20 minutes would qualify me to defend myself in court at all.’’

3 Thus in People v. Thomas (1962) supra, 58 Cal.2d 121, the defendant was permitted many hours in the law library under guard. It is axiomatic that the more serious the crime, the greater the indulgence the trial judge should show towards a defendant. For example, it has already been held that it is within the sound discretion of the trial judge to appoint advisory counsel in a proper ease. (See People v. Linden (1959) 52 Cal.2d 1 [338 P.2d 397]; People v. Mattson (1959) 51 Cal.2d 777 [336 P.2d 937]; see also People v. Jackson (1960) 186 Cal.App.2d 307, 317 [8 Cal.Rptr. 849].)