Reset A A Font size: Print

Court of Appeal, Fourth District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Gregory SMITH, Defendant and Appellant.

Cr. 17039.

Decided: February 29, 1984

Weisenberg, Nelson, Viefhaus & Lutes, and James E. Haney and Robert Viefhaus, Fountain Valley, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Robert M. Foster and Robert B. Shaw, Deputy Attys. Gen., for plaintiff and respondent.


Robert Gregory Smith represented himself and was convicted of burglary with a prior burglary conviction in a jury trial which amounted to little more than an extended plea of guilty.


 Smith raises several issues on appeal.   The simplest is the attack on the sufficiency of the evidence.

About 8 p.m. on January 17, 1982, Gregory Leverich opened the front door of his Fullerton residence when he heard sounds of breaking glass.   Hanging from the window of a wholesale grocery directly across the street was Smith, paroled only a few days earlier for second degree burglary.1  While his wife phoned police, Leverich followed Smith to the only car in the parking lot, losing sight of him momentarily, before the car left the scene.

A short time later, Fullerton officers stopped Smith's vehicle based on Leverich's description.   In plain view on the rear seat was half a case of cigarettes missing from the store.   Leverich was brought to the scene and identified Smith, as he did later at the preliminary hearing and trial.

Smith suggests Leverich's identification was based on assumptions the person who drove out of the parking lot was the burglar and the person caught in the car was the one who drove out of the lot.   Nothing in the record supports these notions, however.   There was no cross-examination of Leverich.   Even if Smith's speculation had been confirmed, the trial jury would have undoubtedly drawn the same conclusion Leverich is accused of doing.   Smith offers no hypothetical explanation for his rather incriminating recent and contemporaneous possession of the vehicle used in the burglary and the loot.   The evidence was more than sufficient.


Experienced in the ways of the criminal justice system and undeterred by the powerful case against him, Smith trotted out a series of procedural obstacles to the efficient disposition of the matter in the trial court.   The more he did, however, the worse his position became.

He first invoked his right to object to his court-appointed attorney and request a substitution.  (People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44;  People v. Minor (1980) 104 Cal.App.3d 194, 163 Cal.Rptr. 501.)   Next, when that motion was denied, he elected to represent himself (Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562);  and the court made appropriate orders for law books, supplies, an investigator, and legal runner.

 Here he complains the court did not sufficiently inquire into his motion to disqualify the public defender's office.   The court did enough.   It indulged Smith's rambling attack on the office largely based on his dissatisfaction with the deputy who handled his preliminary hearing, but she was not assigned to his case in the superior court.   He also claimed the public defender wanted to “dump” his case from the beginning, but he offered nothing of substance to support that allegation.   If the motion had any basis at all, it appears likely Smith merely confused a deputy's realistic appraisal of his chances at trial with a lack of enthusiasm for Smith or his case.   There was no reason to relieve counsel.  (Cf. People v. Hill (1983) 148 Cal.App.3d 744, 196 Cal.Rptr. 382.)

 Smith also attacks the granting of his motion to represent himself.   He claims he was forced to that decision because his motion to relieve the public defender's office was improperly denied.   Not so.   As we explained, given ample opportunity, Smith made an inadequate record to support disqualification of the public defender;  and the court offered a reasonable continuance to secure private counsel.   When Smith insisted on self-representation, the court made certain his choice was voluntarily and intelligently made.  (Ferrel v. Superior Court (1978) 20 Cal.3d 888, 891, 144 Cal.Rptr. 610, 576 P.2d 93.)   The court explained the dangers of self-representation and warned he would be held to the same standards as an attorney;  but a “knowledgeable” Smith insisted on his Faretta rights.   The court had no choice but to grant the motion.  (People v. Joseph (1983) 34 Cal.3d 936, 943, 196 Cal.Rptr. 339, 671 P.2d 843.)


Court appearances in the months preceding trial and the trial itself were largely given over to Smith's complaints concerning his pro. per. status.   A simple burglary case turned into a vexing lawsuit over jail conditions, Smith's legal runners, requested witnesses and legal experts, his evening repose, pencils, law books, and so on.   Smith appeared to enjoy tweaking the system;  and we sympathize with the judges who, for the most part, patiently dealt with his often petty gripes.

If that was his aim, Smith did get the better of the judges in the end, however;  for we must reverse his conviction despite the strength of the evidence.   There are two reasons.

First, during the two-day trial, Smith, complaining of lack of sleep, made little effort to defend himself.   He did not cross-examine or present witnesses and made but a brief closing argument, mostly relating to matters not supported by the record and to complaints about his treatment in court.   Each day he said he was tired and demanded a continuance because he had been allowed insufficient sleep.   The court refused to allow him to present evidence of the fact.   We set out the gist of these discussions at length in the margin.2

The court really had no option other than to take evidence to determine the merits of the claim Smith was too tired to go forward, as both he and the prosecutor suggested, or to accept his representation and grant daily continuances when he had not been allowed adequate sleep.   Instead, it apparently accepted the representation but proceeded anyway with a vague allusion to reconsidering the subject on a motion for new trial.

 The frustrations of Faretta to the trial bench are shared by the appellate courts; 3  we must peruse these tedious records, which often resemble seriatim small claims cases against the sheriff.   Nonetheless, the right to self-representation is meaningless to a somnambulant prisoner attempting to act as his own attorney.   Thus, because Smith was improperly denied the opportunity to prove the fact, the essentially uncontroverted record is he was too tired to defend himself;  and the conviction must be reversed for failure to grant the continuance requested.4  (People v. Hill, supra, 148 Cal.App.3d 744, 757, 196 Cal.Rptr. 382.)

 The basis for our holding was aptly expressed in Javor v. U.S. (9th Cir.1984) 724 F.2d 831:  “Today we conclude that when an attorney for a criminal defendant sleeps through a substantial portion of the trial, such conduct is inherently prejudicial and thus no separate showing of prejudice is necessary.   See Holloway v. Arkansas, 435 U.S. 475, 489–91 [98 S.Ct. 1173, 1181–82, 55 L.Ed.2d 426] (1978);  cf. Rinker v. County of Napa, [724 F.2d 1352, at 1354] (9th Cir.1983) (per curiam).  [¶] Javor's sixth amendment right to counsel was violated not because of specific legal errors or omissions indicating incompetence, but because he had no legal assistance during a substantial portion of his trial.   The magistrate's finding of no actual prejudice is not controlling because regardless of counsel's participation when present, when a defendant is tried in the partial absence of counsel, he is prejudiced as a matter of law.  Id.  [¶] Prejudice is inherent in this case because unconscious or sleeping counsel is equivalent to no counsel at all.   The mere physical presence of an attorney does not fulfill the sixth amendment entitlement to the assistance of counsel․”  (Id., at p. 833–34.)   The rule has even greater application to a self-represented prisoner;  for if the actions of the jailer have impaired his right to defend himself, the individual has not just suffered a deprivation of constitutional dimension, the state itself is responsible.5


The second basis for reversal relates to the inadequacy of the time and legal materials provided Smith to prepare and discuss jury instructions.   During a strange pretrial hearing in which Smith was required to reveal, in camera,6 his reasons for wishing to subpoena a particular inmate witness, Smith complained of his inability to obtain a copy of California Jury Instructions (CALJIC) from the jail law library.   The court made this unfortunate reply:

“THE COURT:  You're concerned about something that is so insignificant in preparing for a trial.   The average attorney probably doesn't spend more than 15 minutes on jury instructions.7  The court has the responsibility to give all law on the case that bears on the issues of the trial.   So whether or not you're conversant with what instructions should be given is not really relevant to your defense for the reason that the court will be giving all applicable law.   And there's no reason for you to have to study a CALJIC in detail, or most of the other books that you've asked for, in the court's mind, and there's no reason for you to spend your state prison term in county jail, if that's what's going to happen to you.  [¶] The other observation I made is that even though the People are very interested in giving you the maximum, the court is inclined to give you some consideration, if you're interested in a plea in the case.   I told you earlier that I would give you three years and I want you to think about that.   If, before we actually start the trial in this matter, if it's still before me, you decide you want to plead guilty, I'll keep that offer open to you;  three years instead of the maximum.” 8

 Then, in trial before a second judge, the prosecutor rested sooner than anticipated because of Smith's refusal or inability to participate in the proceedings.   She needed a two-hour recess to collect her proposed jury instructions.9  Smith was provided those instructions and the court's copy of CALJIC at about 1:15 p.m., and the jury was ordered back at 1:30.   Thus, Smith approximately received the fifteen minutes prophetically suggested in the in camera hearing to examine the prosecution's proposed instructions and CALJIC.10

 Consequently, we must find a second interference with Smith's Sixth Amendment right to represent himself.   We have no way of knowing what, if anything, might have happened differently had Smith been allowed a reasonable opportunity to prepare his own instructions and study those presented by the prosecution.   That is, of course, the grave difficulty with Sixth Amendment violations;  the harm is generally impossible to assess.  (Barber v. Municipal Court (1979) 24 Cal.3d 742, 757, 157 Cal.Rptr. 658, 598 P.2d 818;  Javor v. U.S., supra, 724 F.2d 1352.)

 Even if we could affirm on the ground the errors were harmless beyond a reasonable doubt because of the overwhelming strength of the prosecution case, it would not be appropriate to do so for the same reason Smith was entitled to adequate representation in the first place.   The right to counsel flows from the federal and state constitutions and has nothing to do with the relative strength of the prosecution case.   To paraphrase a golden oldie of the law, a defendant with a hard case is just as much entitled to adequate representation as anyone else and much more in need of it.   Interference with that right is virtually the equivalent of the denial of the trial itself;  neither is subject to meaningful evaluation after the fact.  (People v. Joseph, supra, 34 Cal.3d 936, 945–948, 196 Cal.Rptr. 339, 671 P.2d 843.)   Smith is entitled to a new trial.

Judgment reversed.


1.   The jury learned about the prior because Smith did not admit it or seek to bifurcate the trial.  (See People v. Bracamonte (1983) 119 Cal.App.3d 644, 174 Cal.Rptr. 191.)   The prosecutor largely proved it by obtaining judicial notice of the superior court's own file.  (See People v. Sweeney (1984) 150 Cal.App.3d 553, 567, 198 Cal.Rptr. 182.)

2.   Before jury selection commenced, the following colloquy occurred:“MR. SMITH:  I would just like to tell you, Your Honor, that I'm not getting eight hours sleep, and there is a federal court order against denying prisoners who are going to trial eight hours sleep.  [¶] I was woken up [sic] at 3:30 this morning, and I have not gotten my eight hours sleep, and there is a federal court order by Judge Gray from the Central District prohibiting the Orange County Sheriff from doing that;  and the sheriff blatently [sic] disregarded that court order, woke me up at 3:30 in the morning, thus denying me eight hours sleep.  [¶] I am supposed to defend myself on three hours sleep.   I can't do it, Your Honor.“THE COURT:  Ms. Brough, isn't there in existence an order relating to the subject of the amount of sleep that a defendant is entitled to have?“MR. SMITH:  A federal court order.“MS. BROUGH:  I don't believe there is such an order in this particular case.

FOOTNOTE.  “MR. SMITH:  The door was not—I was given a shower last night at about twenty minutes after ten, 10:30.   I got out of the shower, and the shower door is right next to the dayroom door, and after I got out of the shower, the shower door opened, I stepped out, the dayroom door opened, and I was told to move in.  [¶] Then at about 11:30 I went back to my cell.   Then at 3:30 I was woken up [sic].“THE COURT:  Would you inquire during the noon hour whether or not the practice is now to wake prisoners up at 3:30?   If it is, I will make a separate order for purposes of this case.“MS. BROUGH:  Thank you, Your Honor.   I will.“THE COURT:  All right.  [¶] Are there any other preliminary matters?“MR. SMITH:  Just I have been denied the right to defend myself, and I haven't even gotten my sleep.   I can no longer defend myself like that.“THE COURT:  You have expressed yourself on the record.“MR. SMITH:  I would like to—if you would like, Your Honor, you can ask anybody in this room how much sleep they got last night.“THE COURT:  The jury will be ready but not brought up at 1:45.   At 1:45 perhaps you can report on this problem of the sleep.“MS. BROUGH:  I will.That afternoon Smith's complaints were discussed again:“MR. SMITH:  Your Honor, there is a federal court order.   It is even in the books, Stewart vs. Gates.   The jail isn't complying with that court order.  [¶] I was very surprised when they came to my cell at 3:30 in the morning and woke me up.   About 20 minutes later they are rattling my gate telling me to come out.  [¶] Your Honor, I want to take as fact that if the officer wouldn't have rushed me out of my cell, I would have been ready right now with a motion to challenge the jury selection in this county.   Because of that, I'm not prepared, because I got rushed out of my cell after getting only three hours sleep.“THE COURT:  Ms. Brough, the Court asked you to make inquiry over the noon hour into the subject.   What did you learn?“MS. BROUGH:  I spoke with Sergeant Keller over at the jail.   He indicated that the usual time to awaken the prisoners is between 4:30 and 5:00 a.m., and that as far as he knew no one was awakened at 3:30.“MR. SMITH:  Your Honor, you want to bring over a couple of inmates that are—well, let's see.  [One inmate] is in [another] court right now.   And you want to bring over [another]?   He is over at the jail right now.   We can bring in witnesses all day long on this, and they will—you like to take it for a fact that we were in fact woken up at 3:30 this morning, and I did leave my cell no later than four o'clock in the morning, and did enter the chow hall at a little after four o'clock in the morning and waited in the fourth floor another couple hours.“THE COURT:  I'm going to make an order in the matter without inquiring further into the matter.  [¶] The Court orders that the officials of the jail, sofar [sic] as the hours, that Mr. Smith is to have the opportunity to sleep and comply fully in all respects with the order of Judge William Gray in 450 Federal Supplement 583.  [¶] The clerk will make a separate minute order of that order and make a copy of it which will be given to the transportation deputy, and he will take it to the watch commander.“MR. SMITH:  So now, Your Honor, the question remains now, I have been denied sleep last night and this morning.   I don't know.   I can't even think clear right now, because I'm really tired.  [¶] I have been forced in, you know, conducting a voir dire without any help of, you know, without the benefit of looking at any kind of books that have anything to do with that, and without the benefit of eight hours sleep.  [¶] Like I said, Your Honor, I was gotten up at 3:30 this morning, and if you didn't want to call over any witnesses to testify about that, then, I would like that taken as the fact.“THE COURT:  The motion for continuance was already denied both by me and by another judge this morning.   So we will continue with the selection of the jury.“MR. SMITH:  Well, Your Honor, you could continue it for one day.   I didn't have my eight hours sleep.   I already told you that.   You were well aware of that fact before the jury came in.“THE COURT:  Court is in recess.”After the recess the jury selection continued.   Later, the same afternoon, the judge again addressed Smith:“THE COURT:  Mr. Smith, would you like to make an opening statement?“MR. SMITH:  No.“THE COURT:  There was a cough, and I didn't hear the defendant's answer.“MR. SMITH:  I'm too tired.”The following day was more of the same:“MR. SMITH:  Okay.  [¶] Now, Your Honor, the Court—or the jail and sheriffs are not complying with the federal court order.   I was woken up [sic] at ten minutes to four o'clock this morning.   I have a copy here of Stewart vs. Gates about what the judge has to say about getting up at 3:30 in the morning.   And ten minutes to four is twenty minutes later than 3:30 in the morning, and last night I got about a little over five hours sleep.   And right now I'm real tired again.   I'm about to go to sleep.   I can't think straight.   Right now I'm emotionally poor—motioning for continuance until I get eight hours sleep before and after trial date, just like the federal court order says right here, because you just made that order yesterday that the jail was supposed to comply with all court orders made by William Gray in the Central District of the Federal Court here in California.  [¶] Would you like to read what it says here, Your Honor, about getting eight hours sleep the night before and eight hours sleep the night after trial dates?   That is what it says right here.  [¶] I didn't get no eight hours sleep last night.   I'm tired.“THE COURT:  It sounds like a motion for continuance.Would you like to respond?“MS. BROUGH:  Your Honor, People, of course, are opposed to that motion right in the middle of the trial.   I don't know what time the lights go out in the jail, but if Mr. Smith wants to continue his case until he gets eight hours sleep, and we are going to base that on his statement without any type of corroboration and not under oath, I don't think we would ever go to trial in this case.  [¶] I oppose a continuance.   The trial is in progress.   I ask that we go ahead and complete the trial.“MR. SMITH:  Your Honor, [an inmate witness] is in front of [another judge] this morning, and he is in tank 14, module C, which is the tank right above mine.   And I'm housed in tank 13.  [¶] If you would like to bring him down here so he may give oral testimony to add weight to my statement and enter his testimony as evidence into the record, you can call him over here, since he is in the courtroom right now.  [¶] If you would like to call inmates over from the Orange County Jail from tank 14 and tank 13, which is my tank, they will testify to the same thing, Your Honor, that at approximately ten minutes to four in the morning an officer was yelling on the microphone, ‘Wake up, get up, stand up for count, be in full jail issue,’ and was racking the gate as the lights came on.  [¶] If you are not willing to issue an order to bring them in here, those particular inmates [lists names of seven prisoners] who is up there.“MS. BROUGH:  Your Honor, if I may just briefly respond, I think that is another attempt by the defendant for a delay tactic in his trial.   So far we have heard reasons that the trial should not proceed because of pencils, erasers, inadequate access to books, the fact that his mother was his runner, and she is an older person, the fact that he needed a witness from San Quentin and who he decided he needed yesterday.  [¶] Now apparently he is raising this issue of inadequate sleep and some problem with an investigator.  [¶] I think when you see a pattern like this, it is apparent what is going on.   He doesn't want to go to trial.   And I don't think that he should be allowed to manipulate the Court into that kind of a situation just by bringing up a large number of excuses.“MR. SMITH:  Your Honor, I am not at this time asking for a long continuance.   I'm just asking that the sheriff complies with your court order and the federal court order, which encompasses Orange County, of getting eight hours sleep the night before, the night after.   I will be ready to proceed tomorrow if the sheriff complies with the court order of the federal court.“THE COURT:  I'm ready to rule.   The Court denies the motion.  [¶] There is a jury impaneled.   The case is a very short one and should be concluded today.  [¶] In the event that there is occasion shown by way of motion for new trial or vacating any verdict that may be entered in this case, the Court will consider it.   The Court does not think that this is an appropriate case to enter into any kind of inquiry as to whether on [sic] not the jail has complied either with Judge Gray's order or with this Court's order.   So we will proceed with the trial.  [Emphasis added.]“MR. SMITH:  Then, Your Honor, since you refuse to bring those inmates over, I would just like it taken as a fact that we did get up at ten minutes to four this morning, I only got a little over five hours sleep last night, less than six hours, but a little over five hours sleep last night.“THE COURT:  I heard your statement.”Later, after the arresting officer was called on direct, Smith was invited to cross-examine:“THE COURT:  You may cross examine, Mr. Smith.“MR. SMITH:  As I told you yesterday, and you can take it as fact this morning, Your Honor, that you are denying me everything.   I'm too tired to cross examine him.   The transcript is right here.   I can show where he lied, about the transcript where he placed me under arrest, when he arrested me for Vehicle Code Section.“THE COURT:  You have an opportunity given to you to cross examine, not to make a speech to the Court.   Do you desire to cross examine?“MR. SMITH:  You have totally restricted me from defending myself, Your Honor.“THE COURT:  The Court takes that answer as negative, then.   You may step down, Officer.”

3.   See People v. McKenzie (1983) 34 Cal.3d 616, 194 Cal.Rptr. 462, 668 P.2d 769, for example.   There the Supreme Court reluctantly reversed where counsel declined to participate because the defendant refused to cooperate and he had been unable to develop a defense.   Justice Kaus' dissent aptly describes some of our feelings about this case:  “While I, too, am deeply offended by the spectacle of a defendant being led off to prison after an ex parte trial, I cannot bring myself to agree that the correct reaction for this court is to reverse the conviction with a lecture to the trial court and defense counsel.  [¶] It is obvious that the only reason why this appeal poses such a difficult problem is defendant's courtroom conduct—his silence, followed by disruptive behavior which compelled his exclusion from the proceedings.  [¶] I can think of only two reasons for defendant's conduct, first he may have hoped that by creating a sufficiently grotesque situation, he could trick the trial court into committing error.   Second, his behavior may simply have been his way of saying ‘I am guilty.’  [¶] There can be no question as to the trial court's view.   It found that defendant was ‘acting as he is wilfully, based on what appears to be an enormous quantity of evidence against him, and his only chance of beating the case, if it is a chance, is to try and get some error into the case, ․’  If the trial court was correct, we should hold that defendant is estopped to rely on errors provoked by his own bizarre conduct.   The outcome of an appeal from a conviction should not depend on how well the court passes a practical bar examination, necessitated by defendant's misconduct which has no purpose other than to test the court's ability to field novel problems created by that very misconduct.”  (Id., at pp. 637–638, 194 Cal.Rptr. 462, 668 P.2d 769, dis. opn. by Kaus, J.)  We must follow the view of the majority, however, to the extent McKenzie relates to this case;  and here there is a third possibility, that Smith was telling the truth concerning his lack of sleep.   We do not know because the court refused to hear evidence on the subject.

4.   We do not consider whether to remand for a belated evidentiary hearing on the merits of Smith's allegations concerning sleep because the next issue requires reversal in any event.

5.   Moreover, apart from its obligation to Smith, the court had a responsibility to itself and the administration of justice.   It should have given Smith the opportunity to prove his allegations, not only to consider the motion for a continuance, but also to enforce compliance by the sheriff.

6.   Although the prosecutor was absent, two sheriff's deputies were present, another of the uneasy compromises occasioned by Faretta.

7.   The sad accuracy of this observation cannot be doubted.   It is a major reason so many cases, civil and criminal, founder on appellate shoals.

8.   We withhold comment on the propriety of the latter portion of this statement in an ex parte proceeding.   Smith did receive the maximum punishment but from a different judge.

9.   A properly prepared prosecutor, particularly prosecuting a pro. per., should provide the proposed instructions much earlier in the proceedings.

10.   The proceedings went like this:“THE COURT:  Bailiff, will you ask the jurors to remain outside until we complete this portion of the proceedings.  [¶] Now, the deputy district attorney has submitted a plaintiff's request for jury instructions.   I have caused those instructions that have been requested to be xeroxed.  [¶] Mr. Smith, I understand you have requested no instructions specifically.“MR. SMITH:  Well, Your Honor—“THE COURT:  Just answer yes or no so I can get on with it.“MR. SMITH:  I don't have access to any of the CALJIC, California Jury Instructions.“THE COURT:  All right.“MR. SMITH:  I haven't had no opportunity to ever see them.“THE COURT:  Bailiff, will you hand the defendant the two copies of CALJIC and the two supplements.  [¶] Now, I xeroxed the copy of the instructions that the district attorney has recommended.   Do you have the two copies, Miss Clerk?“THE CLERK:  I have one of the copies.   The district attorney has her copy.“THE COURT:  All right.  [¶] Will the bailiff please hand to the defendant the copy that I have had made of the requested instructions by the district attorney.   This is in order to simplify the Court's decision as to which instructions to give.”A few minutes later Smith stated, “Well, Your Honor, what are you going to do with my motion for continuance until I have time to look at the California Jury Instructions and look up the case law?“THE COURT:  Your remark is out of order.”After going through each instruction without comment from Smith, the judge said, “Now, that concludes the advice that the Court is required under the law to give to counsel as to the instructions to be given.“MR. SMITH:  Your Honor.“THE COURT:  Yes, if there is something you want to say, say it briefly.“MR. SMITH:  Yeah.  [¶] This is the first time that I ever been able to get the Cal Jury Instructions with additions for criminal flat [sic].   I just told you right now there is no way that I can be ready with any jury instructions that I request in just a few minutes that you have given me.   Besides that, the matter of not getting enough sleep.“THE COURT:  The Court will now state what the verdicts will be.”

CROSBY, Associate Justice.