The PEOPLE, Plaintiff and Respondent, v. Chris James GRAYSON, Defendant and Appellant.
In a single-count information, the Los Angeles County District Attorney charged appellant with second degree robbery. (Pen.Code,1 § 211.) The information alleged the robbery was a serious felony. (§ 1192.7, subd. (c)(19).)
The information further charged appellant with a prior robbery conviction, in 1986, a 1980 burglary conviction, and a 1983 conviction for receiving stolen property and petty theft with a prior.
The information further alleged appellant used a weapon (§ 12022, subd. (b)) also causing the offense to be a serious felony (§ 1192.7, subd. (c)(23).)
The trial court granted the People's motion to strike the June 13, 1980, April 27, 1983, and April 10, 1986, convictions, granted appellant's motion to represent himself, and denied in part and granted in part appellant's section 1538.5 motion.
A jury convicted appellant as charged, and found the use allegation and the prior conviction to be true.
The trial court sentenced appellant to five years for the robbery, plus five years, pursuant to section 667, subdivision (a) for the prior conviction, plus one year, for the weapon use conviction, pursuant to section 12022, subdivision (b),2 for a total sentence of 11 years. The trial court credited appellant with 624 days of custody credit.
STATEMENT OF FACTSProsecution Evidence
Appellant approached Fausto Morones, who was sitting in his Toyota at Century and State Streets in Southgate, and demanded money at knifepoint. Finding no money, appellant ordered Morones out of the car, and then drove away in it.
Southgate Police Department Sergeant Todd entered appellant's home with the permission of appellant's wife and arrested appellant. Detective Todd recovered Morones' car keys from appellant, who asked that they be given to appellant's wife. Detective Todd asked appellant's wife if the keys were hers. She said they were not, nor had she seen them before.
The arresting officers did not say anything to appellant's wife about car keys. They were looking for drugs. They did not find any drugs.
Appellant's contentions are as follows:
1. The trial court's Faretta admonition was prejudicially insufficient.
2. The trial court prejudicially erred in failing to conduct a pretrial hearing on appellant's motion to exclude the victim's in-court identification.
3. The trial court denied appellant's right to be tried by a jury drawn from a representative cross-section of the community.
4. The trial court denied appellant the right to a fair trial of the prior conviction.
5. The trial court erred in its crediting of pretrial custody credits.
As hereafter discussed we find no merit to any of appellant's contentions except his claim to additional presentence custody credits to which respondent had conceded.
DISCUSSIONA. THE TRIAL COURT PROPERLY ADMONISHED APPELLANT PURSUANT TO FARETTA v. CALIFORNIA
Having successfully moved the trial court to represent himself, appellant claims on appeal the trial court should not have granted his request because it did not sufficiently warn him of the dangers of self-representation, pursuant to Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.3
Faretta's holding does not support appellant's claim. It merely held states may not force criminal defendants to be represented by counsel. (Id. at p. 836, 95 S.Ct. at p. 2541.) As a matter of procedure, “[in] order to represent himself, the accused must ‘knowingly and intelligently’ forgo [those] relinquished benefits. [Citation.]” (Id., at p. 835, 95 S.Ct., at p. 2541.) The high court reasoned: “Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, 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.’ (Adams v. United States ex rel. McCann, 317 U.S.  at p. 279 [63 S.Ct. at 242.] )” (Id., at p. 835, 95 S.Ct., at p. 2541.)
Analyzing Faretta, Division 2 of the 4th District of this Court in People v. Barlow (1980) 103 Cal.App.3d 351, 163 Cal.Rptr. 664, forcefully commented: “[it] is a distortion of precedent to cite Faretta for the proposition that it requires the trial court to mouth any particular warnings.” (Id., at p. 370, 163 Cal.Rptr. 664.) 4 Barlow concluded: “Faretta, fairly analyzed, does not require any kind of warning.” 5 (Id., at p. 373, 163 Cal.Rptr. 664, emphasis added.)
Accordingly, Faretta did not change our state's rule on this issue; whether a valid waiver of counsel occurred must be determined by reviewing the entire record and circumstances of the case. In re Johnson (1965) 62 Cal.2d 325, 335, 42 Cal.Rptr. 228, 398 P.2d 420; People v. Paradise (1980) 108 Cal.App.3d 364, 368–369, 166 Cal.Rptr. 4846 ; Benge v. Superior Court (1980) 110 Cal.App.3d 121, 125–129, 167 Cal.Rptr. 714.
Thus, Faretta does not require an advisement of the dangers of self-representation; it is only preferable so the record will establish “[he] knows what [he] is doing and [his] choice is made with eyes open.” (People v. Lopez (1977) 71 Cal.App.3d 568, 571, 138 Cal.Rptr. 36; Faretta v. California, supra, 422 U.S. at p. 835, 95 S.Ct. at p. 2541.)
Barlow, supra, refined the proper role of a trial court confronted with a request for self-representation as follows: “[The] judicial task of the trial court [here] prescribed is not some mindless mouthing of a rote incantation but instead is a pragmatic search within the unique framework of the given case for that point where it clearly appears to the trial court that [the defendant] has ․ made a ‘knowing and intelligent election․” (People v. Barlow, supra, 103 Cal.App.3d at p. 370, 163 Cal.Rptr. 664.)
Here, as in People v. Paradise, supra, 108 Cal.App.3d at p. 370, 166 Cal.Rptr. 484, appellant does not aver he was not aware of the dangers and risks of self-representation nor, indeed, that had he been expressly advised of the dangers and risks he would not have undertaken to represent himself. This is not surprising. In a detailed, initialled, signed, and dated four-page petition (appendix) appellant expressly stated he understood his constitutional rights, including to be represented by counsel, waived those rights, understood the risks of self-representation, understood the court's advice not to represent himself, and unequivocally requested to represent himself. Appellant does not contest the authenticity or accuracy of this petition.
The entire record and circumstances of this case indicate appellant was familiar with criminal procedure. Consequently, it seems reasonable to presume he was aware of the risks of self-representation, as well.
For example, appellant had previous experience with the criminal justice system. It was proven he was convicted of robbery in 1986 and the record indicates he suffered a conviction for receiving stolen property that same year and suffered a prior burglary conviction in 1980. This prior experience enabled appellant to make a knowing and intelligent choice to waive his right to counsel.
The trial judge was certainly aware of appellant's prior criminal record when he ruled on appellant's Faretta motion. Though he did not state it on the record, it seems reasonable to presume the trial judge inferred appellant had made a “knowing and intelligent” choice when he requested leave to represent himself, based on his prior experience with the criminal justice system.
If the trial judge made such an inference, appellant's subsequent performance at trial bore it out, by showing a remarkable familiarity with the rules of evidence, and of criminal procedure, for a non-lawyer. Consequently, based on the entire record and the circumstances of appellant's trial, in addition to appellant's prior criminal experience, he was aware of the risks of self-representation.
Having had no formal legal training, appellant made the following motions, among others:
(1) to disqualify the trial judge, pursuant to Code of Civil Procedure sections 170.1 and 170.6.7
(2) an extensive discovery motion, which was properly supported with declarations and pertinent case authorities;
(3) to exclude a witness' in-court identification (see appellant's second contention) arguing the identification was “tainted.” The trial court characterized appellant's motion as “an appropriate pretrial motion,” and stated appellant “raised [that] issue properly ․”
(4) for dismissal for “discriminatory law enforcement”;
(5) a section 1538.5 motion, which was initially prepared by a deputy public defender orally arguing the seized evidence were the “fruits of an illegal search.” He argued the “Ramey warrant” was defective because the officer who prepared it did not know appellant's last name when he presented it to a magistrate. He also argued a knife seized in the search should be suppressed, because it was not in plain view. The trial court partially granted appellant's motion.
(6) to dismiss the action for lack of prosecution, pursuant to Penal Code section 1382, which he supported with pertinent case authorities;
(7) a Wheeler motion;
(8) a post-trial motion for a new trial, pursuant to Penal Code section 1181, also supported with points and authorities.
A deputy public defender represented appellant before trial. She advised the trial court appellant preferred to represent himself. Appellant confirmed this by stating, “Your honor, I would like to defend myself.” The trial court responded with a caution, by asking, Mr. Grayson, “are you sure you want to represent yourself? Have you given enough thought to all the—.” A reasonable inference from this statement is the trial judge intended to complete his sentence with the phrase, “․ risks of representing yourself?”
Appellant did not permit the trial judge to complete his sentence, but seemed to anticipate the judge's query. It also appears the trial court's incomplete caution caused appellant to assure himself, because he responded, “Yeah. Can [I] speak to Miss Telfer 8 for a minute?” Appellant was either acknowledging he had not given enough thought to the risks of self-representation, or, it seems reasonable to infer, he obtained advice from his lawyer, Deputy Public Defender Carol Telfer, regarding the risks involved with self-representation during the conference.
After “giving more thought to all the—” and conferring with counsel, appellant told the trial court he wished to “Go pro per.”
Rather than engage in a “a mindless mouthing of a rote incantation,” the trial court conditionally granted appellant's motion. (People v. Barlow, supra, 103 Cal.App.3d at p. 370, 163 Cal.Rptr. 664.) The judge stated: “All right. [I] am going to give [you] a total of about 90 days continuance. So when the 90 days are up, [you] are going to trial. Do [you] understand that?” Appellant responded, “[I] understand.” The trial judge continued, “So if [you] come back here and ask for a continuance, which [I] know [you're] going to do, if [you] want to make motions, [I] will bring [you] back once a month. But when the 90 days are up, [you] are going to have a super good reason for not going to trial. Pro pers have the capacity for dragging the system out a very long time, and that's not going to happen.” The trial judge's statements complied with Faretta because Faretta required no warning. (People v. Barlow, supra, 103 Cal.App.3d at p. 373, 163 Cal.Rptr. 664.)
The clear import of the trial judge's admonition was that the court was going to treat appellant like an attorney, and that the court would not tolerate gamesmanship. In other words, the trial court was granting appellant's motion for leave to represent himself, on the condition that appellant would be expected to conduct himself as an attorney, and he should not expect special privileges because of his non-lawyer status. Although not required under Faretta, as discussed above, the trial judge's statement was tantamount to a warning of the risks of self-representation.
Appellant accepted the trial court's conditions, saying, “[I] understand that, your honor. [I] don't intend to drag it out․”
Appellant concedes the trial court had no legal duty to give him a specific admonition as to the dangers of self-representation. That, however, is precisely why appellant contends this court should reverse his conviction. Accordingly, appellant's claim is unsupported by authority.
When a trial court determines an accused has voluntarily and intelligently elected to represent himself, it has no discretion except to permit the accused to represent himself, “irrespective of how unwise such a choice might appear to be.” (People v. Joseph (1983) 34 Cal.3d 936, 943, 196 Cal.Rptr. 339, 671 P.2d 843; People v. Teron (1979) 23 Cal.3d 103, 113, 151 Cal.Rptr. 633, 588 P.2d 773.)
Where the record reflects that the appellant rendered a knowing and intelligent waiver of counsel, “the burden is upon the defendant to establish by a preponderance of the evidence that his waiver was not competently made. (Johnson v. Zerbst (1938) 304 U.S. 458, 469 [58 S.Ct. 1019, 1025, 82 L.Ed. 1461] [citations].” (Benge v. Superior Court, supra, 110 Cal.App.3d 121, 125–129, 167 Cal.Rptr. 714, emphasis in original.)
Appellant has not met that burden. His waiver of counsel should stand. (Benge v. Superior Court, supra, 110 Cal.App.3d at p. 125–129, 167 Cal.Rptr. 714; People v. Barlow, supra, 103 Cal.App.3d at p. 370, 163 Cal.Rptr. 664; People v. Paradise, supra, 108 Cal.App.3d at pp. 368–369, 166 Cal.Rptr. 484.) 9
B. THE TRIAL COURT DID NOT ERR BY FAILING TO HOLD A PRETRIAL HEARING ON APPELLANT'S MOTION TO EXCLUDE MORONES' IN–COURT IDENTIFICATION
Appellant next claims the trial court erred by failing to hold a pretrial hearing on his motion to exclude Morones' in-court identification. The claim is meritless.
Appellant moved to exclude Morones' in-court identification of appellant.10 He claimed an out-of-court photographic identification procedure was unduly suggestive. In response, the trial court stated appellant properly raised the issue, and indicated it would hold a hearing before the witness identified appellant before the jury, and offered appellant the opportunity to cross-examine Morones, who identified appellant during the preliminary hearing. Accordingly, the trial court instructed the prosecutor to make the photographs available before presenting Morones during the People's case-in-chief. The trial court indicated, however, that it wished to view the photographs before ruling on appellant's motion.
On August 30, 1989, during the morning session prior to trial, the prosecutor indicated the investigating officer would make the photographs available for the afternoon session. The trial court reiterated it would defer hearing appellant's motion until the afternoon session, when the original photographs would be available.
When the August 30 afternoon session began, the trial court asked appellant if he “had anything further” before directing the jury to enter the courtroom. Rather than pursue the court's offer to permit him to cross-examine Morones, which had been made only minutes earlier, appellant cryptically objected “to all proceedings.”
When the trial court noted the objection appellant, again bypassing the trial court's offer to hold a hearing, merely expanded on his “generic” objection by inquiring whether his objection to “all proceedings” included a complaint the trial court deprived him of a “fair, impartial trial.”
During the People's case-in-chief, Morones testified he identified a police photograph of appellant from a group of photographs presented to him. Southgate Police Department Sergeant Robert Todd, who conducted the photographic lineup, supported this testimony. Morones further testified he mistakenly placed a number assigned to appellant's photograph next to a statement which read, “I am unable to make identification,” because he could not read English.11 Sergeant Todd also corroborated Morones' testimony. Appellant did not renew his pretrial motion before Morones testified.
Appellant waived this claim by failing to pursue his motion to a final ruling and by failing to make a timely, specific objection prior to Morones' identification testimony.
Pretrial claims of constitutional violations must be renewed at trial, or they are waived. (People v. Boyer (1989) 48 Cal.3d 247, 270, 256 Cal.Rptr. 96, 768 P.2d 610, cert. den. (1989) 493 U.S. 975, 110 S.Ct. 497, 107 L.Ed.2d 500) Where evidence is introduced subject to a motion to strike, but the accused fails to move to strike it, the objection is waived. (People v. Benenato (1946) 77 Cal.App.2d 350, 360–361, 175 P.2d 296 overruled on other grounds by In re Wright (1967) 65 Cal.2d 650, 654, 56 Cal.Rptr. 110, 422 P.2d 998.)
Here, as discussed above, appellant essentially dropped his motion to exclude Morones' in-court identification, by failing to respond to the trial court's inquiry as to whether appellant had any requests of it before bringing in the jury. Appellant's failure to pursue his motion and obtain a final ruling is fatal to his claim on appeal. (Ibid.)
Evidentiary objections must be timely, or they are waived. (Evid.Code, § 353 12 ; People v. Sassounian (1986) 182 Cal.App.3d 361, 401, fn. 39, 226 Cal.Rptr. 880, cert. den. (1986) 481 U.S. 1039, 107 S.Ct. 1977, 95 L.Ed.2d 817.) Here, when Morones identified appellant in court as the robber, appellant made no objection whatsoever. Later, when the prosecutor elicited an explanation from Morones as to why the latter indicated on a paper he could not identify appellant from a series of photographs, appellant objected on the grounds the evidence was “fabricated.” 13
Even if this could be interpreted as a renewal of appellant's motion to strike Morones' in-court identification of appellant because the police photographs were unduly suggestive, it was untimely, and therefore fatal to appellant's claim. (Ibid.)
Appellant's failure to specifically object to Morones' in-court identification testimony during trial waived his claim of a suggestive out-of-court identification.
People v. Vanbuskirk (1976) 61 Cal.App.3d 395, 132 Cal.Rptr. 30, the case upon which appellant chiefly relies, is readily distinguishable from the case at bar. In that case, the accused objected to the out-of-court identification procedure during trial whereas, in the case at bar, appellant made his objection prior to trial, and certainly not at the time Morones' identification testimony was offered.
The critical difference, however, is that in Vanbuskirk, this court found “a most fundamental 14 error” because the trial court in that case made it clear to the accused that it would not consider the claimed unfairness in the photographic identification procedures as affecting the admissibility of the witnesses' courtroom identifications. (Id., at p. 401, 132 Cal.Rptr. 30.)
Here, by contrast, the trial court specifically stated on several occasions it would hold a hearing on appellant's motion. Accordingly, there was no similar denial of an opportunity to appellant to challenge Morones' in-court identification. (People v. Vanbuskirk, supra, 61 Cal.App.3d at p. 402, 132 Cal.Rptr. 30.)
Appellant is not entitled to a reversal because he failed to avail himself of the opportunity presented to him to litigate the issue.
Assuming arguendo the trial court erred in admitting Morones' in-court identification testimony, without holding a hearing, the error was clearly harmless, because the pretrial identification procedure was not so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. (People v. Enos (1973) 34 Cal.App.3d 25, 38, 109 Cal.Rptr. 876.)
Here, Morones testified he could see appellant “very well” when appellant assaulted him. When he identified appellant in court as the perpetrator of the crime, Morones testified he had no doubt the person he identified as appellant was the same one who stole his car. Officers showed him the series of photographs one day after the robbery. Thus, Morones had an image of appellant in his mind before police officers showed him any photographs, dissipating any taint. (People v. Ratliff (1986) 41 Cal.3d 675, 712, 224 Cal.Rptr. 705, 715 P.2d 665.) Accordingly, any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705; People v. Enos, supra, 34 Cal.App.3d at pp. 38–39, 109 Cal.Rptr. 876.)
C. THE PROSECUTION PROPERLY USED ITS PEREMPTORY CHALLENGE TO EXCUSE A BLACK JUROR
Appellant next claims he was denied his right to be tried by a jury drawn from a representative cross-section of the community, pursuant to People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.15 The claim is meritless.
Appellant objected to the prosecutor's peremptory challenge as to prospective juror Hyche on August 25. He stated: “My objection is very few black people in Norwalk and every black person that came up there besides one has got rid of already.” The jury was sworn the same day. The trial court denied appellant's motion for mistrial on August 30.
“If a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion 16 and make a prima facie case of such discrimination to the satisfaction of the court.” (People v. Wheeler, supra, 22 Cal.3d at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748.)
This requirement has three subparts: “First ․ [he] should make as complete a record of the circumstances as is feasible. Second, [he] must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule. Third, from all the circumstances of the case [he] must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias.” (People v. Wheeler, supra, 22 Cal.3d at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748.)
The trial court's denial of appellant's Wheeler motion is largely subject to only limited appellate review. (Id., at p. 282, 148 Cal.Rptr. 890, 583 P.2d 748.) The California Supreme Court gives great deference to the trial court's determination that the use of peremptory challenges was not for an improper or class bias purpose. (People v. Johnson (1989) 47 Cal.3d 1194, 1221, 255 Cal.Rptr. 569, 767 P.2d 1047, cert. den. (1989) 494 U.S. 1038, 110 S.Ct. 1501, 108 L.Ed.2d 636.) Appellant has shown no reason to upset that standard here.
Appellant failed to satisfy his burden of proof of a prima facie case under Wheeler. He did not meet the first or third subparts of the Wheeler test.17 (People v. Wheeler, supra, 22 Cal.3d at pp. 279–280, 148 Cal.Rptr. 890, 583 P.2d 748.)
As to the first, the record he made is meager. In making his Wheeler objection after the prosecutor excused venireman Hyche, the only venireman appellant challenges on appeal, appellant stated, as indicated: “My objection is very few black people in Norwalk and every black person that came up there besides one has got rid of already.” 18
As to the third element, appellant made no showing whatsoever that “from all the circumstances of the case” there was a strong likelihood the prosecutor challenged blacks because of their group association rather than because of any specific bias. (Ibid.) Appellant did not make a sufficient showing to rebut the presumption of the constitutional validity of the prosecutor's peremptory challenge of prospective juror Hyche. (People v. Granillo (1987) 197 Cal.App.3d 110, 115, 242 Cal.Rptr. 639.)
The case at bar is similar to People v. Boyd (1985) 167 Cal.App.3d 36, 49–50, 212 Cal.Rptr. 873. In Boyd, this court found no prima facie showing of group bias, where the prosecutor had accepted the jury as constituted with two blacks sitting on the panel, before the accused moved for a mistrial on Wheeler grounds, but before exhausting the People's peremptory challenges.
When the jury was sworn in the instant case, three blacks were on the panel. The prosecutor accepted the jury as constituted, before exhausting the People's peremptory challenges. Had the prosecutor employed a racial tactic, he presumably would have used all the People's peremptory challenges to exclude all blacks from the jury. He did not do so, however.
On this record, appellant did not make out a prima facie case, and the trial court properly denied his motion. (People v. Boyd, supra, 167 Cal.App.3d at pp. 49–50, 212 Cal.Rptr. 873.)
Appellant appears to suggest that the People's excusing a single black prospective juror “per se made out a prima facie case of group bias and automatically shifted the burden of justification to the prosecution.” (People v. Allen (1989) 212 Cal.App.3d 306, 316, 260 Cal.Rptr. 463.) This is not the law.
“While disparate treatment of members of cognizable minority groups may be suggestive of illegal group discrimination, the law is clear that a prima facie case of group bias requiring prosecutorial explanation arises only if from all the circumstances of the case the trial court finds a strong likelihood that the persons were being challenged because of their group association rather than specific bias. [Citation]” (People v. Allen, supra, 212 Cal.App.3d at p. 316, 260 Cal.Rptr. 463, emphasis in original.)
Here, the trial court properly denied appellant's motion, because an examination of all the circumstances of the case do not indicate it should have found a strong likelihood that blacks were being challenged because they were blacks. (Ibid.) As the trial court ruled: “[I'm] not even going to—[I] find no error. [He] excused [the] black person. [¶] ․ The court specifically finds that no Wheeler error or not even an inference of Wheeler error. [sic] The court specifically did not rule or consider [his] objection at the time because [I] didn't feel it was appropriate.”
When appellant first made a Wheeler objection, the prosecutor had excused three black prospective jurors: the first was juror Beaudoin, whose uncle had been arrested on a drug charge. Ms. Beaudoin did not think the case was handled fairly. The second was juror Hines, whose two cousins had been jailed on a robbery charge. Hines did not think the sentence as to one of her cousins was fair.19 Third was juror Hyche, of whom the prosecutor asked no questions. However, when the jury was sworn, as indicated above, the prosecutor had accepted 3 blacks, or 25 percent of the panel.
As in People v. Allen, supra, 212 Cal.App.3d 306, 260 Cal.Rptr. 463, appellant did not make out a prima facie case for group bias, since the record reveals the existence of specific bias for two of the three challenged prospective jurors. (Id. at p. 316, 260 Cal.Rptr. 463.) As to prospective juror Hyche, although it is impossible on this record to determine why the People excused him, there does not appear to be a pattern of racial discrimination, because of the possible existence of bias as to prospective jurors Beaudoin and Hines.
Even if the People's reasons for excusing prospective juror Hyche were trivial, they would not be invalid. Subjective reasons, such as body language, may be acceptable. The reasons need only be “reasonably specific and neutral explanations that are related to the particular case being tried.” (People v. Johnson, supra, 47 Cal.3d at p. 1218, 255 Cal.Rptr. 569, 767 P.2d 1047.)
Since appellant failed to make out a prima facie case of Wheeler error, there is no requirement that this court reverse his conviction.
D. THE TRIAL COURT AFFORDED APPELLANT A FAIR TRIAL ON THE PRIOR CONVICTION ALLEGATION
Appellant next claims the trial court denied him a fair trial on the prior conviction allegation, because he was given insufficient time to prepare. The claim is meritless.
Appellant objected to the prior conviction trial after the People rested, and the trial court had asked him whether he had an affirmative defense. Appellant claimed the People did not give him sufficient time to study his fingerprints 20 from the prior conviction, which the People had introduced in their case-in-chief.
It appears appellant's attorney may have given him records of the prior conviction as early as March 7, 1989, when the trial court discharged her. She stated, “And [I] will give [him] all of the other stuff, the prior records and stuff.” If she did give him the fingerprints, appellant's claim he had insufficient time to study them would be meritless. The bifurcated trial of the prior conviction allegation commenced over five months later, on August 31, 1989.
Even if appellant did not have access to his fingerprints, the discovery statute did not require the People to produce appellant's fingerprints in advance of trial.21 And appellant has cited no authority indicating he had a constitutional right to discover the People's evidence prior to trial at all, and certainly no authority to support his claim he had a right to inspect the evidence at a certain time in advance of the bifurcated trial. His failure to cite authority requires dismissal of his claim. (People v. Haskett (1990) 52 Cal.3d 210, 244, 276 Cal.Rptr. 80, 801 P.2d 323.)
Assuming arguendo appellant had a right to discovery of the People's evidence in advance of the bifurcated trial, he had ample time to prepare for the bifurcated trial. Appellant was on notice that he had to defend himself against the allegation he was convicted of robbery in 1986 when he was arraigned on November 30, 1988.22 The trial was set for December 19, 1988. Appellant, at that time represented by an attorney, apparently did not object. On that day, appellant's attorney appeared and requested a continuance to January 20, 1989, for further trial preparation.
On January 20, appellant did not appear in court, and a bench warrant was issued. Appellant appeared in court on February 6, 1989, and the trial court scheduled a pretrial conference for March 6, 1989. The pretrial conference was continued twice, and was ultimately held on April 25, 1989. At that hearing, appellant agreed to set the pretrial and trial setting for May 23, 1989. On May 23, the trial court scheduled the trial for June 26, 1989, and admonished appellant it would grant no further motions for continuances. The trial was trailed to July 3, 1989, on the court's motion, and again to July 6, 1989, on the People's motion.
On July 6, 1989, the trial court granted appellant's motion for discovery of a transcript of the prior conviction, so appellant could prepare an affirmative defense. It also granted appellant's motion to continue the trial until August 14, 1989, for further trial preparation.
Appellant was again a “miss-out” on August 14, and the trial court set trial for August 21, 1989.
The trial court provided appellant with a copy of a “YA commitment” dated February 8, 1989, on August 21, 1989. The, trial court trailed the trial to August 24, 1989.
Appellant was again a “miss-out” on August 24, and the trial court trailed the trial to August 25, 1989. Trial began that day.
Appellant was again a “miss-out” on August 29, 1989. Trial resumed the next day.
The trial of the prior conviction allegation was held on August 31, 1989.
As the foregoing history indicates, appellant had approximately ten months to prepare and to petition the Department of Justice for the disclosure of the fingerprints, if he deemed it appropriate.23 He failed to do so. Accordingly, his claim the trial court denied him sufficient time to prepare for trial is inaccurate.
Furthermore, appellant did not move to continue the prior conviction trial pursuant to section 1050, subdivision (b) 24 when he requested a bifurcated trial, nor when the bifurcated trial commenced, so he could have more time to study the “prison package.” Failure to move for a continuance is a waiver. (People v. Taylor (1958) 159 Cal.App.2d 752, 756–757, 324 P.2d 715.)
Affirmance is required where an appellant is unable to show prejudice from untimely compliance with a discovery order. (People v. Sewell (1978) 20 Cal.3d 639, 645–646, 143 Cal.Rptr. 879, 574 P.2d 1231.) Although there was no discovery order regarding appellant's fingerprints here, the Sewell rule should apply because appellant claims the prosecutor's disclosure of his fingerprints was untimely. Appellant has shown no prejudice here, and the judgment should and is therefore hereafter affirmed. (Ibid.)
Contrary to appellant's claim, the trial court did not deny him an opportunity to present a defense. It specifically asked appellant whether he intended to present a defense. Rather than respond directly, appellant cryptically objected to the timeliness of the prosecution's production of his fingerprints. Coming as it did after the People presented this evidence, the objection was untimely under Evidence Code section 353.25
Furthermore, appellant did not, contrary to his claim, request leave to testify in his own behalf. Hearing no response to its inquiry, the trial court properly concluded the bifurcated trial and instructed the jury, where appellant cited no authority requiring a continuance, or indicating prosecutorial misconduct for failure to disclose the fingerprints earlier.
Finally, appellant's claim the trial court took advantage of his lack of legal training is meritless. Appellant demonstrated a knowledge of criminal law and procedure which is uncommon for laymen. He prepared numerous pretrial motions, some written and properly supported by pertinent case authorities. He demonstrated a knowledge of the rules of evidence, by bringing motions under Evidence Code section 402 and Penal Code section 1538.5 to exclude evidence. He also showed he knew how to manipulate the system by causing repeated trial delays.
Appellant's failure to cite any authority requiring the striking of the enhancement requires dismissal of his claim. (People v. Haskett (1990) 52 Cal.3d 210, 244, 276 Cal.Rptr. 80, 801 P.2d 323.)
E. THE TRIAL COURT GRANTED APPELLANT INSUFFICIENT PRESENTENCE CUSTODY CREDIT
Appellant lastly argues the trial court should have credited him with 715 days, rather than 624 days of presentence custody credit. He is correct in contending the trial court erred, but the error is not as great as he claims.
The trial court orally granted appellant 476 days of presentence custody credit, but it appears that this was not correct. The probation report indicates appellant was arrested on October 7, 1988. Sentence was pronounced on January 24, 1990. There were 474 days between those dates,26 and the trial court should have granted 474 days, rather than 476 days.
Accordingly, appellant was entitled to 236 days of conduct credits, rather than the 239 days he claims, for a total credit of 710 days of custody credit, rather than the 715 days he claims. (People v. Bravo (1990) 219 Cal.App.3d 729, 735, 268 Cal.Rptr. 486.27 ) The judgment indicates the trial court credited appellant with 624 days. The judgment is modified to reflect the appellant is to be given presentence credit of 710 days. (People v. Mesa (1975) 14 Cal.3d 466, 471, 121 Cal.Rptr. 473, 535 P.2d 337; People v. Hartsell (1973) 34 Cal.App.3d 8, 13, 109 Cal.Rptr. 627; In re Candelario (1970) 3 Cal.3d 702, 705, 91 Cal.Rptr. 497, 477 P.2d 729.)
The judgment is affirmed as modified to reflect custody credit to the appellant of 710 days.
I respectfully dissent.
Without even reaching the merits of the other matters discussed in the majority opinion, I feel compelled to register my disagreement with the majority's treatment of the United States Supreme Court decision in Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 and our Supreme Court's decisions in People v. Windham (1977) 19 Cal.3d 121, 137 Cal.Rptr. 8, 560 P.2d 1187; People v. Joseph (1983) 34 Cal.3d 936, 196 Cal.Rptr. 339, 671 P.2d 843 and People v. Bloom (1989) 48 Cal.3d 1194, 259 Cal.Rptr. 669, 774 P.2d 698. While these decisions do not mandate any specific warning or set of warnings before a trial court may properly conclude a defendant has voluntarily and intelligently waived his constitutional right to counsel in making a request for self-representation, they do consistently and uniformly require some affirmative indication in the record the trial court satisfied itself the defendant in fact waived his right to counsel voluntarily, intelligently and knowingly before granting his motion to proceed in pro se.
In this case the trial court made no finding appellant voluntarily waived his right to counsel. The trial court made no inquiries at all to assure itself appellant knowingly waived his constitutional right to counsel or that appellant was sufficiently literate and capable of handling his defense at trial before granting his motion for self-representation. Consequently, the record does not support a conclusion the trial court assured itself the defendant was making the decision for self-representation “with open eyes” before granting the motion for self-representation. (Faretta v. California, supra, 422 U.S. at p. 835, 95 S.Ct. at p. 2541.) Nor did the trial court make a finding anywhere in the record defendant's waiver of such an important constitutional right was voluntary and intelligent.
The majority, nevertheless, excuse this lapse by reaching the erroneous conclusion Faretta, Windham, Joseph and Bloom allow an appellate court to presume from a silent record the trial court inferentially made a finding of voluntary waiver by the mere granting of appellant's motion for self-representation. As our high court recently reiterated in People v. Howard (1992) 1 Cal. 4th 1132, 5 Cal.Rptr.2d 268, 824 P.2d 1315, explicit admonitions and waivers of constitutional rights are still required in this state. Because the trial court gave no explicit admonitions and did not explicitly find appellant waived his right to counsel in this case, I must dissent.
I. THE RECORD DOES NOT ESTABLISH APPELLANT WAIVED HIS RIGHT TO COUNSEL VOLUNTARILY AND INTELLIGENTLY.
Appellant challenged the grant of his motion for self-representation on the basis the record failed to show he was made aware of the risks and consequences of self-representation. Appellant cites several decisions from California and other jurisdictions which hold it is reversible error per se to allow a defendant to proceed pro se where the record does not reflect the trial court first assured itself the defendant validly waived his Sixth Amendment right to counsel. The majority rely on several Court of Appeal decisions which hold no specific warnings are required before a court may grant a defendant's motion for self-representation and that the burden is on the defendant to prove his waiver was not voluntarily made once the trial court finds, and/or the record reflects, the waiver was knowingly given. Decisions of the Courts of Appeal were somewhat inconsistent in developing the proper standard for review of a defendant's waiver of the right to counsel in this context. However, as discussed later in this opinion, these apparent inconsistencies were later resolved by the state's highest court.
In Faretta v. California, supra, 422 U.S. 806, 95 S.Ct. 2525, the United States Supreme Court held a defendant in a state criminal trial has an independent constitutional right of self-representation. The Court held a defendant may proceed to defend himself without counsel when he or she voluntarily and intelligently elects to do so. In explaining its holding, the Court stated: “When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forgo those relinquished benefits. [Citations.] Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, 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.’ [Citations.]” (Id. at p. 835, 95 S.Ct. at p. 2541.)
The California Supreme Court had its first opportunity to apply the holding in Faretta in People v. Windham, supra, 19 Cal.3d 121, 137 Cal.Rptr. 8, 560 P.2d 1187. In Windham the court held in order to invoke the constitutionally mandated unconditional right of self-representation, a defendant in a criminal trial should make an unequivocal assertion of that right within a “reasonable time” prior to trial. The court repeated the directive of Faretta and stated: “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.” (Id. at p. 128, 137 Cal.Rptr. 8, 560 P.2d 1187; citing Faretta.) The court further held, however, when a request for self-representation is not timely, the grant or denial of such a motion is addressed to the sound discretion of the trial court which should inquire sua sponte into the specific factors underlying the request to create an adequate record in the event subsequent appellate review is later required. (Ibid.)
Our highest court did not have a chance to revisit Faretta related issues until its decision in People v. Joseph, supra, 34 Cal.3d 936, 196 Cal.Rptr. 339, 671 P.2d 843. In the interim, however, Courts of Appeal attempted to delineate the quantum and nature of warnings and admonishments required before a trial court could safely determine a defendant had intelligently and voluntarily waived his or her right to counsel. The decisions were in disagreement as to the type of warnings required or indeed whether any specific warning was required before accepting a defendant's waiver of counsel. Although, a trend developed to require no specific warning or set of warnings, the requirement a trial court must still satisfy itself, and the record must reflect, any waiver of counsel was intelligently and voluntarily made, was not relinquished. The determination a defendant made a valid waiver could be determined from a review of the whole record and the circumstances existing at the time of the waiver, including the conduct, experience and background of the defendant. (See, e.g., People v. Lopez (1977) 71 Cal.App.3d 568, 138 Cal.Rptr. 36 [at sentencing hearing after guilty plea trial court made only two inquiries: whether the defendant wished to represent himself and whether he wanted to relieve his appointed counsel. Because record did not adequately establish the defendant made a knowing and voluntary election, reversed on basis error prejudicial per se]; People v. Cervantes (1978) 87 Cal.App.3d 281, 150 Cal.Rptr. 819 [inadequate warnings concerning the perils of self-representation held harmless beyond a reasonable doubt where evidence defendant's first pro se trial resulted in hung jury, trial court queried defendant concerning charged crimes and educational background]; People v. Fabricant (1979) 91 Cal.App.3d 706, 154 Cal.Rptr. 340 [conviction reversed because no warnings given, no interview conducted before defendant allowed to proceed pro se and no evidence in record strong enough to demonstrate beyond a reasonable doubt proper warnings would not have discouraged defendant from self-representation]; People v. Torres (1979) 96 Cal.App.3d 14, 157 Cal.Rptr. 560 [if warnings were deficient would require reversal but record inadequate to review whether waiver of counsel voluntary and intelligent because defendant did not supply record or preserve issue for appeal]; People v. Barlow (1980) 103 Cal.App.3d 351, 163 Cal.Rptr. 664 [no specific warnings required, voluntary and intelligent waiver found from colloquy between trial court and defendant explaining charges and rights given up by pleading guilty and signing waiver form]; People v. Paradise (1980) 108 Cal.App.3d 364, 166 Cal.Rptr. 484 [signing waiver of rights form before pleading guilty constituted valid waiver; not also entitled to any specific warning of risks and dangers of self-representation]; Benge v. Superior Court (1980) 110 Cal.App.3d 121, 128, 167 Cal.Rptr. 714 [same; “It is the task of the court to determine if the waiver is knowingly and intelligently made and, if so, this conclusion of the court is what must be memorialized at some place in the record.”]; Zimmerman v. Municipal Court (1980) 111 Cal.App.3d 174, 168 Cal.Rptr. 434 [although no specific warnings given, extensive advisement of defenses, possible penalties and consequences of guilty plea sufficient to support trial court's finding waiver of counsel knowingly and intelligently made]; People v. Longwith (1981) 125 Cal.App.3d 400, 178 Cal.Rptr. 136 [not necessary to warn pro se defendant lose claim of ineffective assistance of counsel on appeal for waiver of counsel to be knowing and voluntary; valid waiver found from extensive interrogation by trial court, warnings of risks and possible penalties and discussion of procedural and evidentiary issues]; People v. Mellor (1984) 161 Cal.App.3d 32, 207 Cal.Rptr. 383 [warnings and advisements not also necessary just before trial for a finding waiver of counsel voluntarily and intelligently made where record reflects advised and warned at arraignment and again at preliminary hearing]; People v. Spencer (1984) 153 Cal.App.3d 931, 200 Cal.Rptr. 693 [no warnings given, no finding on record waiver of counsel intelligent and voluntary required reversal even if error not reversible per se because although conducted several trials pro se and had experienced advisory counsel, appellate court could not determine beyond reasonable doubt warnings would not have discouraged defendant from proceeding pro se]; People v. Hall (1990) 218 Cal.App.3d 1102, 267 Cal.Rptr. 494 [total failure to give express admonishments or warnings or to secure waivers on the record reversible error per se].)
In People v. Joseph, supra, 34 Cal.3d 936, 196 Cal.Rptr. 339, 671 P.2d 843, the court held a defendant cannot be denied the right of self-representation due to the seriousness of the charges against him and the potential death penalty they carried where the record reflects the defendant is aware of the possible perils and dangers of proceeding pro se and has a full appreciation of the possible penalty of death. In stating the standard for a finding of a voluntary and intelligent waiver of counsel, the court repeated the language in Faretta and cited the Court of Appeal decision in People v. Lopez, supra, 71 Cal.App.3d 568, 572–574, 138 Cal.Rptr. 36 (which found failure to make necessary inquiries reversible error per se and suggested several warnings and admonitions a trial court might give on the record before granting a defendant's request to proceed pro se).1
Thus, the Joseph opinion indicated an on-the-record advisement of the implications of a defendant's selection of self-representation was still required despite language in earlier decisions of Courts of Appeal seemingly to the contrary.
In Joseph, because of the extensive interrogation of the defendant by the trial court, the record demonstrated the defendant was literate, competent and was voluntarily exercising his free will in requesting self-representation. The court found the trial court erred in denying defendant's motion strictly because of the nature of the charge against him. (Id. 34 Cal.3d at pp. 944–945, 196 Cal.Rptr. 339, 671 P.2d 843.) The court further found the error reversible per se and remanded for new trial. “These principles compel the conclusion that a trial court's error in denying an accused the opportunity to plead his own cause cannot be rectified by a ‘Monday morning quarterback’ determination that no prejudice ensued by forcing an accused to go to trial represented by counsel. Any rule which purported to assess the quality of a would-be Faretta accused's representation by the harmless error standard would inevitably erode the pro se right itself. Moreover, an assessment of why or how an accused's trial was disadvantaged by injecting an undesired attorney into the proceedings would require an impossibly speculative comparison between the accused's undisclosed pro se strategy and that of counsel. No appellate court can or should engage in that kind of analysis when such fundamental rights hang in the balance.” (Id. at p. 946, 196 Cal.Rptr. 339, 671 P.2d 843.)
The California Supreme Court in People v. Bloom, supra, 48 Cal.3d 1194, 259 Cal.Rptr. 669, 774 P.2d 698, again reiterated the rule the record must reflect the risks and consequences of self-representation were brought home to a defendant seeking self-representation before a trial court may properly find a defendant intelligently and voluntarily waived his right to counsel. “A defendant seeking self-representation ‘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.” ’ (Faretta, supra, 422 U.S. at p. 835 [95 S.Ct. at p. 2541].) The test of a valid waiver of counsel is not whether specific warnings or advisements were given but 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.]” (Id. 48 Cal.3d at pp. 1224–1225, 259 Cal.Rptr. 669, 774 P.2d 698.)
After the guilt phase of the trial, the defendant in Bloom requested co-counsel status (in effect a motion to represent himself) at the penalty phase for the express purpose of seeking a death verdict. Because of these unusual circumstances, “an elaborate catalog of dangers and pitfalls was unnecessary. As the trial court observed, defendant would be assisting rather than opposing the prosecutor and not only appreciated the risk of a death verdict but actively sought it. The record reveals, and the trial court found, that defendant possessed sufficient intellect to understand the proceedings and to address the court and the jury. Defendant was aware of the possible penalty verdicts on each count, and was advised by the trial court that his decision was ‘an enormous mistake.’ Defendant acknowledged that the prosecutor had practiced law longer than defendant had been alive and thus would be a skilled opponent. The record therefore establishes that defendant was sufficiently aware of the dangers and disadvantages of self-representation and made his decision with open eyes.” (Id. at p. 1225, 259 Cal.Rptr. 669, 774 P.2d 698.)
Thus, while Bloom does not require any particular litany of warnings and admonishments before a defendant can be said to have voluntarily and intelligently waived his right to counsel, that decision clarifies the rule evidence demonstrating the defendant understood the disadvantages of self-representation and the complexities of his case must affirmatively appear in the record.2
In this case appellant challenges the grant of his motion for self-presentation on the basis the record fails to show he was made aware of the risks of self-representation. We are compelled to agree.
A public defender represented appellant at the preliminary hearing in October 1988 and again at his arraignment in November 1988. At an appearance in March 1989, appellant requested to represent himself. The following excerpt is the entire discussion concerning appellant's request to proceed pro se:
“THE COURT: People versus Grayson.
“MS. TELFER: Your honor, Mr. Grayson has indicated to me that he would like to go pro per.
“THE DEFENDANT: Yeah. Your Honor, I would like to defend myself.
“THE COURT: Mr. Grayson, are you sure you want to represent yourself? Have you given enough thought to all the—
“THE DEFENDANT: Yeah. Can I speak to Miss Telfer for a minute?
“THE COURT: Certainly.
“MS. TELFER: Your Honor, can we just pass this for a few minutes?
“THE COURT: Yes. Let me know when you are ready.
“MS. TELFER: All right.
“THE COURT: We will get back to you in a few minutes, Mr. Grayson, okay?
“THE COURT: Mr. Grayson, what's your choice? Do you still want to go pro per or do you want Miss Telfer to represent you?
“THE DEFENDANT: Go pro per.
“THE COURT: All right. I am going to give you a total of about 90 days continuance. So when the 90 days are up, you are going to go to trial. Do you understand that?
“THE DEFENDANT: I understand.”
Unlike other cases in which defendants challenged the grant of a motion for self-representation because the trial court failed to give a particular advisement, e.g., loss of an ineffective assistance of counsel claim on appeal or a specific warning of the dangers of self-representation, the challenge here is to the lack of any evidence in the record to demonstrate the trial court found appellant intelligently and knowingly waived his constitutional right to counsel before granting his motion for self-representation.
As noted in the majority opinion, the court requested the superior court file in this matter. Included in the file was a petition to proceed in propria persona signed and executed by appellant. By initialling various paragraphs of the petition, appellant purported to waive his constitutional right to counsel. We gave the parties leave to file letter briefs to address the significance and import of this petition.3
From the quoted excerpt from the reporter's transcript, it is apparent the trial court made no advisements or inquiries of appellant concerning his purported waiver of his constitutional right to counsel. There was also no discussion whatever of the petition/waiver form. Nor is there any entry in either the superior court file or clerk's transcript on appeal indicating the trial court made any finding appellant's waiver of counsel was knowingly or intelligently made. Nor is there anything in the record establishing the judge knew of the existence of the form or indeed that the form existed and was present in the courtroom at the time the court granted the request for self-representation.
Nevertheless, the majority suggest this form constitutes evidence of an intelligent and voluntary waiver of the right to counsel even in the absence of any acknowledgement of the form by the trial court and even in the absence of any finding by the trial court the form was in fact executed by appellant or that appellant voluntarily signed the form and elected to represent himself with a full understanding of the risks and possible consequences.4 In support of this position the majority rely on many of the appellate court cases mentioned earlier in this opinion holding no specific warning or set of warnings are required before a trial court may properly find the waiver of counsel was intelligently and voluntarily made. These decisions consequently do not directly address the question whether a signed petition standing alone is sufficient evidence of a voluntary waiver in the absence of any finding by the trial court. In virtually all these decisions, some advisements were given on the record, or some type of consent and waiver form was executed and this evidence in conjunction with the trial court's specific finding of voluntariness was held sufficient to justify a finding of voluntariness.
Two such decisions which are factually closest to the case at bar are People v. Paradise, supra, 108 Cal.App.3d 364, 166 Cal.Rptr. 484 and In re Moss (1985) 175 Cal.App.3d 913, 221 Cal.Rptr. 645. In Paradise, the defendant challenged the trial court's denial of his motion to withdraw his guilty plea on the basis he was not advised of the dangers and risk of self-representation before pleading guilty. The Court of Appeal held such advisements need not appear of record so long as the record as a whole shows the express waiver of counsel was intelligently and voluntarily made.
Before entering the plea the defendant in Paradise signed a form entitled “Defendant's Acknowledgement of Advisal, Understanding and Waiver of Constitutional Rights” which informed the defendant of all his constitutional rights and provided for waiving those rights by signing the form. At the time the trial court accepted the plea and waiver of rights, the trial court also indicated, by way of minute order, the waiver of constitutional rights was intelligently and voluntarily made. Based on the waiver form and minute entry and lack of contrary evidence, the appellate court found waiver of the right to counsel was voluntary and intelligent and affirmed the judgment.
In In re Moss, supra, the defendant similarly executed a form entitled “Ventura County Municipal Court–23152–Waiver of Constitutional Rights.” Under the paragraph entitled “WAIVER OF ATTORNEY,” the form stated “I understand I have a right to have a lawyer defend me at all stages of the proceedings, and that if I cannot afford to hire a lawyer, the court will provide one for me. I knowingly and intelligently WAIVE (GIVE UP) my right to a LAWYER.” Moss signed his name on the signature line immediately beneath this sentence.
In the discussion with the court the recording reflected no further advisements or inquiries relating to Moss' constitutional rights were made by the court. Nor was there any mention or discussion of the “Waiver of Constitutional Rights” form signed by Moss. The court merely inquired whether Moss wished to be represented by an attorney and Moss replied he did not. The appellate court found this was an effective waiver of counsel. In so holding the court stated: “The court may rely upon such a validly executed waiver form in assessing whether a plea is voluntary and in assessing whether defendant has waived his constitutional rights․ [¶] Even when a defendant is not represented by counsel, a waiver form, such as the one here, is sufficient, provided the court is assured that a defendant has signed and understands the form.” (Id. at pp. 925–926, 221 Cal.Rptr. 645; italics added.) The appellate court found the waiver valid based on the form and because the trial court also signed a portion of the plea form entitled “Findings and Orders” which stated the defendant had knowingly, intelligently and understandingly waived his rights and that the waivers were given freely and voluntarily. (Id. at p. 927, 221 Cal.Rptr. 645.)
Thus, while the signed petition to proceed in propria persona in this case may have been the basis for a finding appellant intelligently and voluntarily waived his constitutional right to counsel, the problem here, and what distinguishes this case from those in which voluntary waivers were found based on signed waiver forms, is that in this case the trial court made no findings whatsoever. The trial court made no findings whether appellant executed the form after advice from counsel or whether appellant even actually signed the form. But most significantly, the trial court made no findings on the record or by minute entry the waivers contained in that form were voluntary and intelligent or even that the form existed. Most significantly, there is nothing in the record which indicates the trial court even relied on the signed petition. There is no authority that I am aware of in which an appellate court indulged a presumption the trial court found waivers of constitutional rights voluntary and intelligent in the absence of any notation by the trial court anywhere in the record to that effect. (Cf. People v. Paradise, supra, [minute order entry waivers voluntary and intelligent]; In re Moss, supra [same]; Nelson v. Justice Court (1978) 86 Cal.App.3d 64, 67, 150 Cal.Rptr. 39 [same]; Zimmerman v. Municipal Court, supra, 111 Cal.App.3d 174, 168 Cal.Rptr. 434 [docket entry indicating defendant specifically advised of dangers and disadvantages of self-representation]; Ganyo v. Municipal Court (1978) 80 Cal.App.3d 522, 145 Cal.Rptr. 636 [docket entry waiver voluntary and intelligent].)
The majority presume appellant's voluntary waiver of counsel from his prior involvement in the criminal justice system. While it is true appellant had a fairly lengthy prior criminal record and therefore some experience with the legal system, it does not necessarily follow appellant appreciated the consequences of the particular charges against him in this proceeding or of the possible penalties or dangers of proceeding without experienced counsel. (See In re Moss, supra, 175 Cal.App.3d at p. 922, 221 Cal.Rptr. 645 [“His prior court experiences alone no more qualify him to be his own lawyer than a case of the gout qualifies one to practice medicine.”]; italics in original.) Certainly the trial court did not make a finding of a voluntary and knowing waiver on this basis. In fact, the court made no express findings at all.
Based on the foregoing authorities, it was error for the trial court to grant appellant's motion to represent himself without first ascertaining whether appellant intelligently and voluntarily waived his right to counsel.
II. REGARDLESS OF THE STANDARD OF REVIEW THE JUDGMENT MUST BE REVERSED.
Failure to find appellant voluntarily and intelligently waived his right to counsel before granting his motion for self-representation was error. The question remains whether the error is reversible per se or whether the error should be analyzed under the “harmless beyond a reasonable doubt” standard of Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, for constitutional error or whether some other standard is applicable.
Court of Appeal decisions considering this issue have come down on both sides of the question. (People v. Lopez, supra, 71 Cal.App.3d at p. 571, 138 Cal.Rptr. 36 [reversible error per se]; People v. Hall, supra, 218 Cal.App.3d at p. 1109, 267 Cal.Rptr. 494 [reversible error per se]; People v. Cervantes, supra, 87 Cal.App.3d at pp. 293–294, 150 Cal.Rptr. 819 [error harmless beyond a reasonable doubt under peculiar facts of case; fully aware of right to counsel, represented self at prior trial which resulted in hung jury, trial court inquired into defendant's understanding of charges against him].) Subsequent appellate decisions finding similar error, but lacking the unique facts of Cervantes, have reversed on the basis it was impossible to confidently determine beyond a reasonable doubt whether proper inquiries and warnings would have deterred a defendant from representing himself. (See, e.g., People v. Fabricant, supra, 91 Cal.App.3d 706, 154 Cal.Rptr. 340; People v. Spencer, supra, 153 Cal.App.3d 931, 200 Cal.Rptr. 693.)
The Supreme Court in Bloom found the record did reflect a knowing and voluntary waiver and did not address the proper standard for review of error. The majority of cases cited by the Supreme Court in that decision found voluntary and intelligent waivers of counsel and therefore also did not discuss the proper standard of review. (United States v. McDowell (6th Cir.1987) 814 F.2d 245, 249 [defendant repeatedly advised of right to counsel, repeatedly requested to proceed pro se, changed counsel four times, retained fourth counsel in advisory position; judgment affirmed but court issued directive to district courts to make full inquiries in the future]; Fitzpatrick v. Wainwright (11th Cir.1986) 800 F.2d 1057, 1065 [form waiver of rights, long colloquy and advisement of rights, warning of complexity of the case]; People v. Longwith, supra, 125 Cal.App.3d 400, 408, 178 Cal.Rptr. 136 [defendant fully advised of risks and consequences of self-representation on the record]; Zimmerman v. Municipal Court, supra, 111 Cal.App.3d 174, 179, 168 Cal.Rptr. 434 [pro se defendant fully advised of possible defenses, penalties, consequences of guilty plea, court specifically found voluntary and intelligent waiver].) The decisions cited which involved inadequate records from which to determine whether the defendant's election of self-representation was voluntary and intelligent are of no practical assistance because they did not uniformly state and apply any distinct standard. (United States v. Kimmel (9th Cir.1982) 672 F.2d 720, 722 [because record inadequate, remanded for finding whether decision to represent self was voluntary and knowing; after remand court simply ordered judgment reversed for lack of finding]; People v. Spencer, supra, 153 Cal.App.3d 931, 200 Cal.Rptr. 693 [assuming Chapman standard applied, record did not establish beyond a reasonable doubt proper warnings would not have discouraged defendant from representing self at trial].)
Recently in People v. Howard, supra, 1 Cal.4th 1132, 5 Cal.Rptr.2d 268, 824 P.2d 1315, the Supreme Court reviewed its earlier decisions in In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449 and In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561, which held in the context of guilty pleas and admissions of prior offenses, any error in the articulation of the three principal constitutional rights (jury trial, confrontation and self-incrimination) or in obtaining waivers of those rights was reversible error per se. The Howard court instead adopted the federal test for reversible error: “The record must affirmatively demonstrate that the plea was voluntary and intelligent under the totality of the circumstances.” (Id. 1 Cal.4th at p. 1178, 5 Cal.Rptr.2d 268, 824 P.2d 1315.) However, in the exercise of its supervisory power, the Howard court still insisted trial courts expressly advise defendants of their constitutional rights:
“This does not mean that explicit admonitions and waivers are no longer an important part of the process of accepting a plea of guilty or an admission of a prior conviction. Despite the rejection of Tahl as a matter of federal law, explicit admonitions and waivers still serve the purpose that originally led us to require them: They are the only realistic means of assuring that the judge leaves a record adequate for review. (Tahl, supra, 1 Cal.3d at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449.) Moreover, the essential wisdom of explicit waivers remains beyond question․ [¶] For these reasons we emphasize that explicit admonitions and waivers are still required in this state. We also reaffirm our caveat in Tahl that trial courts ‘would be well advised to err on the side of caution and employ the time necessary to explain adequately and to obtain express waivers of the rights involved. At stake is the protection of both the accused and the People, the latter by the assurance that an otherwise sound conviction will not fall due to an inadequate record.’ (1 Cal.3d at p. 132, [81 Cal.Rptr. 577, 460 P.2d 449].)” (Howard, supra, at pp. 1178–1179, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)
If by analogy the new test enunciated in Howard is equally applicable to waivers of the right to counsel by a defendant desiring to represent himself, this judgment must still be reversed because the record does not affirmatively demonstrate appellant's waiver was voluntary and intelligent by a totality of the circumstances. The only evidence in support of such a finding is the petition itself. There is no finding in the lower court the waiver embodied in the petition is in fact voluntary and intelligent.
Alternatively, if the failure of the trial court to specifically admonish appellant or personally satisfy itself of the voluntariness of the waiver before granting his request is reversible error per se in this context, then it is clear reversal is mandated.
But even if we assume the Chapman standard is the appropriate test, this record does not establish beyond a reasonable doubt a proper advisement of rights and warnings by the trial court concerning the possible penalties and consequences of self-representation would not have discouraged appellant from relinquishing the services of an experienced attorney and acting as his own lawyer.
The record does not show appellant understood the “disadvantages of self-representation, including the risks and complexities of the particular case.” (People v. Bloom, supra, 48 Cal.3d at p. 1125, 259 Cal.Rptr. 669, 774 P.2d 698.) The fact appellant actually managed to bring certain motions—and that one was actually granted in part—is insufficient to show appellant made the decision for self-representation with open eyes at the time he made the decision.5 Nor can we place any significance on the fact appellant declared his intent to represent himself on appeal at the conclusion of his sentencing hearing. What the appellant thought about his pro se experience after the trial was over is not particularly probative of appellant's state of mind nearly a year earlier when he made his initial request for self-representation.6
Despite the majority's rationale, a defendant's legal knowledge or acumen is irrelevant to the decision of whether a waiver of counsel was voluntarily and knowingly made. (Faretta v. California, supra, 422 U.S. at p. 836, 95 S.Ct. at p. 2541.) 7 Nor can we infer from the record, as the majority suggest, appellant was sufficiently warned and advised by the public defender during the short recess requested by appellant to confer with counsel.8 Knowing and intelligent waivers of constitutional rights cannot be presumed but must be affirmatively demonstrated in the record. (People v. Solomos (1978) 83 Cal.App.3d 945, 954, 148 Cal.Rptr. 248 [“We are not permitted to speculate as to what may have transpired off the record in the area of constitutional rights.”].)
On the record before this court it is impossible to know whether the trial judge was ever aware of the form petition appellant filled out. Indeed it is impossible to know whether appellant filled out the form before or after the trial judge granted his request for self-representation. Because of the failure to put anything on the record, we cannot know whether the trial court had assured itself appellant was aware of the consequences of self-representation and was knowingly and voluntarily surrendering his right to counsel at the time the court granted his request. Unless the court had done so, it was error to grant the request.
Unlike the extraordinary case of People v. Cervantes, supra, 87 Cal.App.3d 281, 150 Cal.Rptr. 819, there is little in this record to convince this court beyond a reasonable doubt the error did not contribute to the conviction.
I cannot condone such lack of concern on the part of a trial court on such critical matters as waivers of constitutional rights. Nor should an appellate court send a message to the bench and bar we will excuse these oversights. These are precious constitutional rights that are at stake here. We should discourage to the greatest extent possible similar lackadaisical treatment of such significant constitutional issues or the rights themselves risk being rendered meaningless.
I understand full well the time pressures trial judges experience in the criminal courts. I sympathize with the desire to shorten the time taken up with admonishments about constitutional rights. Other appellate courts have recognized these pressures and in the series of decisions recounted above have retreated from an insistence trial judges give detailed oral explanations of each and every right on the record to—at least in the context of a guilty plea—an acceptance of written explanations and waivers of those rights.
When the appellate courts first set out to allow the substitution of written admonitions for oral ones, there was always the risk the constitutional rights at stake would be trivialized out of existence, one step at a time. This is always a possibility when we balance ephemeral values like other people's rights against practical things like judicial time and court budgets. The focus then shifts from the effectiveness of our means of enforcement to the costs those means impose. Certainly the trend of recent decisions has been in the direction of allowing trial courts to spend less and less time on admonishing persons accused of crime about their constitutional rights. However, until the majority opinion in this case the appellate courts have continued to insist the record affirmatively reflect an essential safeguard—the trial court must assure itself the defendant understands and is knowingly and voluntarily waiving the rights contained in the written form before accepting the waiver.
The majority opinion in this case thus represents either a departure from prior precedent or the final, fatal step in a progression destined to trivialize and thus extinguish the constitutional rights of many defendants. For, after this opinion, the written admonishment and waiver need no longer be reviewed by the judge. It need not be read and signed by the defendant before the defendant makes or the trial judge grants the motion, so long as it finds its way into the court file sometime that day—or perhaps later in the week or the month. Indeed the written admonishment and waiver need not be connected in any way with the judge's grant of the Faretta motion. Moreover, as long as the defendant signs the form it is unnecessary he or she understand the explanation, or read it—or even be capable of reading it. According to the majority opinion, it is left to the defendant to raise any of these problems during the appellate process—presumably through a habeas corpus or some other evidentiary hearing. This is either an empty offer or an invitation to spend more time at the appellate level on these cases than was saved at the trial level.
Practical factors as well as constitutional considerations suggest we should continue to insist trial judges continue to assure themselves on the record that defendants have read and understood the rights explained on the written forms they have signed and to do so before finding the defendants have waived those rights. Anything less threatens the enforcement and thus the existence of fundamental constitutional rights. It also encourages the proliferation of claims on appeal, founded or unfounded, that defendants signed waivers they had not read or did not understand.
Whether the majority opinion is a departure from wiser precedent or the final, unfortunate step in a progression of precedents, for the reasons recited above I am compelled to dissent.
FN1. Hereafter, all statutory references will be to the Penal Code, unless otherwise noted.. FN1. Hereafter, all statutory references will be to the Penal Code, unless otherwise noted.
2. The minutes of the sentencing hearing indicate the trial court imposed the one year sentence pursuant to section 1203, subdivision (e)(4), which provides that probation may be denied for one who was previously convicted twice of a felony. The reference to this section appears to be an error. An amended abstract of judgment filed on January 24, 1990, is contained in the superior court file (which we judicially notice per Evid.Code, § 452, subd. (d)(1)) indicating that a one year enhancement under section 12022, subdivision (b) was charged and found vice Penal Code section 1203, subdivision (e)(4).
3. Faretta requires trial courts to ascertain whether an accused's waiver of counsel and decision to represent himself was knowing and intelligent. (Id., at p. 835, 95 S.Ct., at p. 2541.)
4. Barlow emphasized this point by criticizing an earlier Court of Appeal opinion, People v. Fabricant (1979) 91 Cal.App.3d 706, 712, 154 Cal.Rptr. 340, for holding that “the burden is on the People to show that the defendant was ‘․ 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.]” Barlow remarked: “This shows how far the misconception of Faretta has evolved as a result of what we have characterized earlier as a ‘knee-jerk’ reaction to its dicta traceable to Johnson and Adams. [Johnson v. Zerbst (1938) 304 U.S. 458, 464–465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461; Adams v. U.S. ex rel. McCann (1942) 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268].” (People v. Barlow, supra, 103 Cal.App.3d at p. 371, 163 Cal.Rptr. 664.)
5. The case at bar is closer to Barlow than People v. Lopez (1977) 71 Cal.App.3d 568, 571, 138 Cal.Rptr. 36, the case upon which appellant relies, because as in Barlow, appellant does not claim the record does not adequately establish he made a knowing and intelligent election. His claim is the trial court failed adequately to warn him of the risks of self-representation. Appellant misreads Lopez. It did not hold that a warning regarding the risks of self-representation is required. Lopez merely suggested such a warning would be wise. (People v. Lopez, supra, 71 Cal.App.3d at pp. 571–572, 138 Cal.Rptr. 36; see also People v. Barlow, supra, 103 Cal.App.3d at p. 365, 163 Cal.Rptr. 664; People v. Mellos (1984) 161 Cal.App.3d 32, 37, 207 Cal.Rptr. 383.)
6. The Paradise court noted: “A number of post-Faretta federal court cases have expressly or implicitly rejected [a] rule ․ [that] that trial courts engage in a mechanical advisement of the risks of self-representation ․ and have reaffirmed the pre-Faretta rule that the entire record should be examined in determining whether the waiver of counsel was intelligently made. (See, e.g., United States v. McCaskill (6th Cir.1978) 585 F.2d 189, 190; United States v. Gillings (9th Cir.1978) 568 F.2d 1307, 1308–1309, cert. den. 436 U.S. 919 [56 L.Ed.2d 760, 98 S.Ct. 2267] ); United States v. Warledo (10th Cir.1977) 557 F.2d 721, 727; Maynard v. Meachum (1st Cir.1976) 545 F.2d 273, 278–279.) A number of California cases decided before the Faretta decision held that this was the rule. (See, e.g., In re Johnson, 62 Cal.2d 325, 334–335 [42 Cal.Rptr. 228, 398 P.2d 420] [parallel citation omitted]; People v. Miller (1970) 12 Cal.App.3d 922, 931, 91 Cal.Rptr. 97 overruled on other grounds by In re Early (1975) 14 Cal.3d 122, 130 [120 Cal.Rptr. 881, 534 P.2d 721] [parallel citation omitted]; People v. Kellett (1969) 1 Cal.App.3d 704, 710–712 [81 Cal.Rptr. 917] [parallel citation omitted]; People v. Kranhouse (1968) 265 Cal.App.2d 440, 447 [71 Cal.Rptr. 223]. [parallel citation omitted].)” (Id., at p. 369, 166 Cal.Rptr. 484.)The Paradise court expressly disavowed any suggestion trial courts must “ritualistically expressly advise” defendants of the dangers and risks of self-representation. (Id., at p. 370, 166 Cal.Rptr. 484.)
7. When the trial court denied these motions, appellant indicated he would take a writ of mandate. Most non-lawyers, it seems safe to assume, are not familiar with the writ.
8. Deputy Public Defender Carol Telfer represented appellant at that point in the trial.
9. Out of an abundance of caution we requested the superior court file in this matter be transferred to this court for examination. The file reveals the appellant made a written “petition to proceed in propria persona,” dated 3/6/89, a day prior to the granting of appellant's request to represent himself. The appendix to this opinion contains a true copy of the petition as contained in the superior court file. Neither appellant nor respondent referred to the petition in their respective briefs on appeal. This court by letter request asked each counsel to address in letter form the legal efficacy of the waivers contained in the petition. In response to the court's request both sides responded with letter briefs. We note that appellant did not deny in his letter brief nor at time of oral argument that the appellant dated, signed and initialed the petition.
10. In making his motion, appellant claimed Judge Kalustian had granted his prior motion for a physical lineup. The record, however, does not bear this out. The preliminary hearing was held before Commissioner Pope, and the transcript of that proceeding does not reflect such a motion at any time during the hearing, and certainly not when Morones identified appellant in court.
11. The People's position was that both Morones and another witness who examined the photographs, Ricardo Romero, mistakenly indicated on the papers given them by the police they could not identify appellant as the robber.
12. That section provides:“A verdict or finding shall not be set aside, nor shall the judgment or decision—based thereon be reversed, by reason of the erroneous admission of evidence unless:“(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and“(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”
13. This objection is perplexing. The paper which Morones signed indicated he could not make an identification. This would tend to be exculpatory, rather than something to which an accused would wish to object. If, by this objection, appellant intended to renew his motion to exclude Morones' in-court identification, the claim was waived for lack of specificity. (Evid.Code, § 353.) People v. Rogers (1978) 21 Cal.3d 542, 146 Cal.Rptr. 732, 579 P.2d 1048, held, inter alia, that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific objection on the grounds sought to be urged on appeal. (Id., at pp. 547–548, 146 Cal.Rptr. 732, 579 P.2d 1048.)
14. Appellant misquotes the author of the opinion by stating Justice Kaus wrote “․ this was a most monumental error․” (Emphasis added.)
15. The text of appellant's contention is entirely different than the point heading. He contends that the prosecutor improperly excused one black juror from the venire. This is an entirely different matter than a challenge to the venire itself.
16. Although appellant did not move for a mistrial until after the jury was sworn, he did make his Wheeler motion before it was sworn. Accordingly, this court finds his motion was timely. (People v. Thompson (1990) 50 Cal.3d 134, 179, 266 Cal.Rptr. 309, 785 P.2d 857, cert. den. (1990) 498 U.S. 881, 111 S.Ct. 226, 112 L.Ed.2d 180.) However, a Wheeler motion made immediately before the jury is sworn is not necessarily timely. (People v. Ortega (1984) 156 Cal.App.3d 63, 70, 202 Cal.Rptr. 657.)
17. Appellant clearly met the second element, because blacks constitute a cognizable group. (People v. Turner (1986) 42 Cal.3d 711, 230 Cal.Rptr. 656, 726 P.2d 102.)
18. As discussed, appellant does not challenge the racial composition of the jury venire in this appeal.
19. Appellant does not challenge the People's exercise of peremptory challenges as to Beaudoin or Hines.
20. During the bifurcated trial, appellant simply objected to having received “this paperwork” 30 minutes prior to trial. It is not clear from the record what paperwork appellant was referring to. On appeal, appellant states the “paperwork” was the People's evidence introduced against him.
21. Section 1054 et seq. governs pretrial discovery. Section 1054.1 provides for the discovery of the names of prosecution witnesses, the defendant's statements, relevant real evidence seized or obtained as part of the investigation of the offenses charged, the existence of a felony conviction of any material witness whose credibility is likely to be critical, any exculpatory evidence, and relevant written or recorded witness statements. Section 1054.7 requires disclosure of the foregoing classes of evidence 30 days prior to trial.
22. The trial court, as indicated, granted the People's motion to strike allegations of two other prior convictions.
23. Appellant could have petitioned the Department of Justice to obtain his own fingerprints, and to move to correct what he deemed to be inaccurate information contained therein, pursuant to sections 11120–11126. This was appellant's exclusive means of access. (See Younger v. Berkeley City Council (1975) 45 Cal.App.3d 825, 831–832, 119 Cal.Rptr. 830.)
24. That section provides, in pertinent part: “To continue any hearing in a criminal proceeding, including the trial, (1) a written notice shall be filed and served on all parties to the proceeding at least two court days before the hearing sought to be continued, together with affidavits or declarations detailing specific facts showing that a continuance is necessary ․” Nor did appellant attempt to show why compliance with subdivision (b) of the foregoing statute was excused for good cause, pursuant to subdivision (c), which provides: “Notwithstanding subdivision (b), a party may make a motion for a continuance without complying with the requirements of that subdivision. However, unless the moving party shows good cause for the failure to comply with those requirements, the court may impose sanctions as provided in Section 1050.5.”
25. See footnote 12, ante.
26. From October 7, 1988, to December 31, 1988, was 85 days. There were 365 days in 1989, which when added to 85, equals 450 days. There were 24 days in January, 1991 to the date of sentencing, which when added to 450, equals a total of 474 days.
27. Under Bravo, the correct formula is to divide the actual days by 4, and multiply the whole result by 2. (Ibid.) Here, 474 days divided by 4 equals 118.5. One hundred and eighteen multiplied by 2 equals 236 days.Bravo expressly repudiated the 1.5 formula which appellant cites as the “accepted method.” (Id. at p. 734, 268 Cal.Rptr. 486.)
1. The California Center for Judicial Education and Research devised a model oral examination based on suggestions in People v. Lopez, supra, of a defendant who indicates an interest in self-representation:“Comment: The following spoken form sets out sample language, which the judge can modify to suit his or her own style. It is recommended that the examination of a defendant requesting pro per status be informal, thorough, and frank. In clear, everyday language the judge should set out the risks and disadvantages of proceeding in pro per. “[Judge inquires of defendant: ]“Do you have the money to hire a lawyer? “[Defendant responds ‘No.’ ]“I will appoint the Public Defender's Office to represent you.“[Defendant objects and requests that he/she serve as own lawyer. ]“Why don't you want the court to appoint a lawyer for you? “[Defendant responds. ]“There's an old, but very true legal adage: ‘One who represents himself has a fool for a client.’ You are charged with a very serious crime, and it would be a gross mistake on your part to refuse to accept free legal services. The lawyers in the Public Defender's Office are highly qualified and experienced trial lawyers, capable of handling any type of criminal case assigned to them, each with a good knowledge of criminal law, criminal procedure, and the intricate workings of this court. Why don't you let me appoint one to represent you and then you meet with that lawyer and the two of you discuss the case? After discussing the case with the lawyer, you can then evaluate him or her, see how you get along, and then decide if you still want to act as your own lawyer. “[Defendant responds. ]“All right, you will have to convince me that you know what you are doing, that you know what the dangers and disadvantages will be and what could happen to you if I let you act as your own lawyer. In other words, you have to convince me that you are knowingly and intelligently waiving your constitutional right to have this court appoint a lawyer to represent you. Can you read and write? “[Defendant responds ‘Yes'. ]“The bailiff will hand you a form, Petition To Proceed in Pro Per, and a pencil. I want you to read it and personally fill it out in its entirety and then sign it. When you have done so we will see if this is really the way you want to proceed.“Comment: The judge should read over the petition and verify that the defendant can read and write.“I have your petition before me and I see that you are literate, and would like to go over this now, step by step in open court, to make sure there is no misunderstanding as to what you are giving up and that you are doing so against the advice of this court.“Do you understand that you will be up against an experienced trial lawyer who will try your case and that neither [he/she] nor the court will assist you? “[Defendant responds. ]“Do you understand that you will have to follow all of the many technical rules of substantive criminal law, criminal procedure, and evidence? “[Defendant responds. ]“Let me make it perfectly clear that the right to act as your own lawyer is not a license to abuse the dignity of this court and I will not tolerate it. If at any time this court determines that the defendant is doing just that, that is, deliberately engaging in obstreperous or serious misconduct and is in fact obstructing the conduct and progress of the trial, I will terminate forthwith your right to self-representation. Do you understand that? “[Defendant responds. ]“Suppose that should happen to you; do you understand how difficult it would be for a lawyer to then take over and represent you with any degree of success? “[Defendant responds. ]“Do you still want to represent yourself?“Let's talk about the charges that are filed against you. I want you to tell me what crimes you are charged with and what are the elements of each of those crimes. “[Defendant responds.]“Do you know whether these crimes with which you are charged are general intent crimes or specific intent crimes? “[Defendant responds. ]“Do you understand that unless you know the answers to these questions, you're going to be hopelessly lost in attempting to prepare a defense, to say nothing about making objections as to the admissibility of irrelevant evidence? “[Defendant responds. ]“Let's talk about the three phases of the case: (1) proceedings before trial, (2) the trial itself, and (3) proceedings after conviction, should that occur. First: with regard to trial preparation, do you understand that motions for dismissal, change of venue, disqualification of a judge, severance of counts, discovery, and suppression of the evidence are just some of the possible pretrial matters that have to be considered, and that each, if asked for, must be in the form of a motion which must be technically proper and made on time or any such motion will be lost as waived? “[Defendant responds. ]“What about negotiating a plea of guilty to one count or to a lesser charge; do you understand that it will be almost impossible for you to do so if you represent yourself? “[Defendant responds. ]“Let's talk about the trial itself. Are you aware of the fact that you must pose proper questions on voir dire in selecting the jury, must know when and how to exercise challenges for cause or peremptory challenges, and must know how many of each type of challenge to which you would be entitled? “[Defendant responds. ]“Do you understand that unless you know what you're doing and make proper objections, damaging evidence may be admitted against you during the course of the trial, such as hearsay evidence?“Do you understand that you are going to have to deal with such problems as prior felony convictions that may be pleaded against you, the admissibility of other uncharged crimes to prove intent, notice, et cetera; and the use of prior felony convictions to impeach a witness, and that if objections are not properly and timely made, evidence highly detrimental to you may well come before a jury? “[Defendant responds. ]“Do you understand that if you do not ask your questions to a witness properly, objections will be sustained; and by your personally asking there is a great danger that the jury may wonder as to your knowledge of the events about which you are questioning and may read into the fact that you're asking such questions an admission on your part, and that this problem will not present itself if you will allow an attorney to represent you. “[Defendant responds. ]“Do you still want to act as your own attorney? “[Defendant responds. ]“Now let us assume that I let you go to trial acting as your own lawyer and you are convicted by a jury. What are the possible sentences that you can receive as a result of your conviction? “[Defendant responds. ] “[If defendant accused of drug offense: ]Note 1—Continued“Do you understand that as result of a conviction, you may ultimately be declared to be a drug addict or in imminent danger of becoming a drug addict, and committed to the California Rehabilitation Center? Do you know how long that may be? “[If defendant pleads not guilty by reason of insanity: ]“Do you understand that in the event of a finding of not guilty by reason of insanity you may be committed to a state hospital? Do you know how long that may be? “[If defendant accused of armed allegation: ]“What is the significance of the use or armed allegation pleaded against you insofar as a possible sentence is concerned? “[If defendant has prior convictions: ]“What is the significance of the priors pleaded against you on your possible sentence? Are you aware of the fact that if you sustain a conviction in this case and these priors are proved, you may be declared to be an habitual criminal? Do you know what the maximum and minimum sentence on that would be? “[Defendant responds. ]“Now let's suppose you do get convicted. One of the possible grounds for appeal is the kind of a defense a defendant received. That is, if a lawyer does such a poor job representing a defendant that it amounts to a denial of the constitutional right to the effective assistance of counsel, the case will be reversed on appeal. If you insist on acting as your own lawyer, you forever give up this right on appeal. Do you understand that? “[Defendant responds. ]“Now for the last and final time, do you give up your right to be represented by a lawyer and insist upon your right to represent yourself?” (California Judges Benchbook: Criminal Pretrial Proceedings (CJER–CEB 1990) § 1.45, pp. 60–64.)
2. In People v. Bloom, supra, the court noted several federal circuits have directed federal district judges to follow the model inquiry set forth in 1 Bench Book for United States District Judges (3d ed. 1986) 1.02–2, when faced with a request for self-representation. (People v. Bloom, supra, 48 Cal.3d at p. 1225, fn. 8, 259 Cal.Rptr. 669, 774 P.2d 698.) That model inquiry provides as follows:“When a defendant states that he wishes to represent himself, you ․ should ask questions similar to the following:“(a) Have you ever studied law?“(b) Have you ever represented yourself or any other defendant in a criminal action?“(c) You realize, do you not, that you are charged with these crimes: (Here state the crimes with which the defendant is charged.)“(d) You realize, do you not, that if you are found guilty of the crime charged in Count I the court must impose an assessment of at least $50 ($25 if a misdemeanor) and could sentence you to as much as _ years in prison and fine you as much as $_?“(Then ask him a similar question with respect to each other crime with which he may be charged in the indictment or information.)“(e) You realize, do you not, that if you are found guilty of more than one of those crimes this court can order that the sentences be served consecutively, that is, one after another?“(f) You realize, do you not, that if you represent yourself, you are on your own? I cannot tell you how you should try your case or even advise you as to how to try your case.“(g) Are you familiar with the Federal Rules of Evidence?“(h) You realize, do you not, that the Federal Rules of Evidence govern what evidence may or may not be introduced at trial and, in representing yourself, you must abide by those rules?“(i) Are you familiar with the Federal Rules of Criminal Procedure?“(j) You realize, do you not, that those rules govern the way in which a criminal action is tried in federal court?“(k) You realize, do you not, that if you decide to take the witness stand, you must present your testimony by asking questions of yourself? You cannot just take the stand and tell your story. You must proceed question by question through your testimony.“(l ) (Then say to the defendant something to this effect):“I must advise you that in my opinion you would be far better defended by a trained lawyer than you can be by yourself. I think it is unwise of you to try to represent yourself. You are not familiar with the law. You are not familiar with court procedure. You are not familiar with the rules of evidence. I would strongly urge you not to try to represent yourself.“(m) Now, in light of the penalty that you might suffer if you are found guilty and in light of all of the difficulties of representing yourself, is it still your desire to represent yourself and to give up your right to be represented by a lawyer?“(n) Is your decision entirely voluntary on your part?“(o) If the answers to the two preceding questions are in the affirmative, you should then say something to the following effect:“ ‘I find that the defendant has knowingly and voluntarily waived his right to counsel. I will therefore permit him to represent himself.’“(p) You should consider the appointment of standby counsel to assist the defendant and to replace him if the court should determine during trial that the defendant can no longer be permitted to represent himself.”
3. We agree this court may take judicial notice of the records of any court of this state. (Evid.Code, §§ 452, 459, subd. (a).) Judicial notice may be taken of documents found in court records provided the matters were presented to or brought to the attention of the trial court. (People v. Preslie (1977) 70 Cal.App.3d 486, 493, 138 Cal.Rptr. 828 [may take judicial notice of records on file in action whether or not in evidence or whether or not trial court relied on them]; Coy of Los Angeles (1991) 235 Cal.App.3d 1077, 1083, 1 Cal.Rptr.2d 215.)Part of the difficulty in this case is the record is silent on the issue of whether the trial court read, acknowledged, or was even aware of the written petition to proceed in propria persona. The written petition may have been simply “presented” to the court clerk for inclusion in the file. It may even have been “presented” to the clerk after rather than before the trial court granted appellant's request to represent himself and played no role in the court's decision on the request. For purposes of discussion, however, I will assume the petition was properly “presented” to the trial court as interpreted by the Preslie court and therefore satisfies the requirements of judicial notice.
4. The majority conclude the burden is on appellant to prove his waiver of counsel was not knowingly and voluntarily made and that appellant in this case has not carried that burden.The burden to disprove the voluntariness of a waiver is only on a defendant once the trial court has made an express finding of an intelligent, knowing and voluntary waiver either orally or in writing, but in any event, memorialized somewhere in the record. (People v. Longwith, supra; People v. Garcia (1979) 98 Cal.App.3d Supp. 14, 159 Cal.Rptr. 487.) In this case there is no finding for the appellant to rebut.
5. The public defender prepared the motion to suppress under Penal Code section 1538.5 prior to being relieved as counsel of record.
6. A reasonable inference from the record is appellant may have indicated a continuing interest in self-representation because of the benefits that status conferred. During the proceedings he took full advantage of and indeed exploited many of the advantages of pro. per. status for incarcerated defendants. By missing out or requesting continuances, appellant managed to delay the trial and sentencing far longer than would otherwise have been warranted or allowed if similar time had been requested by an attorney. Appellant had access to the library, money for postage, a runner and was allowed to remain in the less crowded pro. per. tank while at court. Although appellant denied intentionally abusing his privileges, it is fair to say appellant managed to stretch those benefits to the maximum. It is therefore, not surprising appellant would not want those perquisites to end while an appeal was pending.
7. The majority further presume appellant was aware of the risks and consequences of self-representation because he was familiar with the criminal justice system and some criminal procedure. The majority notes appellant made several motions—although inappropriate—to disqualify the judge pursuant to Code of Civil Procedure sections 170.1 and 170.6. Appellant filed a discovery motion supported with a declaration and case authorities. Appellant moved to exclude a witness' in-court identification arguing the identification was suggestive. Appellant also filed motions for discriminatory law enforcement, to dismiss for lack of prosecution, a Wheeler motion due to the prosecutor's exclusion of Black jurors, a motion for new trial and a motion in arrest of judgment. What the People fail to acknowledge is almost all of these motions were without merit and without support in the law or facts of the case.The record also reflects several examples of typical conduct of an ill-informed and ill-prepared pro se defendant. Appellant failed to make offers of proof when requested; cited federal rules in a state trial; argued outside the evidence; stated he had been denied effective assistance of counsel although he was representing himself; incriminated himself in his cross-examination of the victim by admitting his familiarity with the crime scene; cited the prosecutor for misconduct without grounds which provoked the judge to reprimand him in front of the jury; made speeches to the jury instead of questioning witnesses; did not understand the term “opening statement;” sought to recall witnesses that had previously been excused thinking they would automatically be on call; swore at the court and inferred the trial was rigged; made a leading question objection during the prosecutor's final argument; and, in his final argument, told the jury the other person involved in the robbery lived down the street from him, thereby incriminating himself.However, the effect of appellant's effectiveness or ineffectiveness at trial has no direct bearing on the determination whether the decision to represent himself was knowingly made at the time the trial court granted his motion. Appellant's legal knowledge, or lack thereof, has no relevance to the question whether he competently, intelligently and voluntarily waived his right to counsel at the time he requested self-representation. (Faretta v. California, supra, 422 U.S. at p. 386, 95 S.Ct. at p. 2541.) Nor does this evidence even support the presumption urged by the majority—assuming such a presumption appropriate, which it is not—appellant was so knowledgeable and his performance so effective, his waiver of counsel must have been knowing and voluntary.
8. Inexplicably, the majority are satisfied appellant received adequate admonishment because after granting the motion, the trial court warned it would not grant further continuances beyond the initial 90 days.
FRED WOODS, Associate Justice.
LILLIE, P.J., concurs.