PEOPLE v. HUNTER

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Court of Appeal, Fourth District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Douglas HUNTER, Defendant and Appellant.

No. E003255.

Decided: August 17, 1988

Stephen S. Buckley, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., William M. Wood and Sara Gros–Cloren, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

Defendant was accused of attempting to murder his long time girlfriend, Donna Howard, at her parents' home on February 28, 1985, by shooting her in each hand and in the upper torso.   The defendant testified that Ms. Howard was accidentally shot while the defendant and Ms. Howard's father wrestled for a gun with which the father had threatened the defendant.

The jury convicted defendant of attempted murder (Pen. Code, § 187, 664 1 ) and found true that defendant personally used a firearm (§ 12022.5) and intentionally inflicted great bodily injury (§ 12022.7).   Defendant was sentenced to the upper term of nine years for the attempted murder and a consecutive three year sentence for the great bodily injury enhancement.   A consecutive two year sentence for the use of the handgun was stayed.

Defendant attacks his conviction on numerous grounds, the most weighty being that the trial court erroneously struck the defendant's testimony because he refused to continue cross-examination, denied his motion for mistrial on the ground of racial bias in the prosecution's exercise of peremptory challenges, and refused to appoint advisory counsel.   We reverse on the grounds that the court should not have stricken the defendant's testimony without consideration of less drastic alternatives and should have granted defendant's request for advisory counsel or co-counsel.   We do not discuss the remaining contentions which generally lack merit.

STRIKING OF DEFENDANT'S TESTIMONY

 Defendant contends that the trial court abused its discretion in striking all of the defendant's testimony, and we agree.

The defendant represented himself during the trial presenting his testimony in a narrative fashion.   During cross-examination, the defendant became upset with the questions because he thought they were repetitive and irrelevant.   Despite numerous objections, argumentative answers and side bar conferences, the cross-examination had gone through the events leading up to the incident in about a half day's worth of testimony.

The prosecution then questioned the defendant about his familiarity with a market nearby the victim's parents' home.   Defendant had testified that he drove to the store after the shooting.   The defendant's familiarity with the market was only marginally relevant, and the prosecutor had not yet cross-examined concerning the central facts of the defendant's version of how the shooting took place.   The prosecutor spent more time on this subject than it was worth, but this was partly because of the defendant's pointlessly argumentative and evasive answers.

Finally the defendant said, “This line of questioning is ridiculous.   We can get directly to the issues or we can be here all day as a matter of fact.”   The trial court then held a side bar conference at which the court explained that the prosecution had the right to cross-examine concerning the store.   The defendant threatened to step down from the witness stand asserting that he was “not going to be subjected to being clowned to this degree for no one․”   The defendant went on to complain “I have to answer, object, write down these things, and then try to respond to all this in the same time to get ready so I don't miss upon my redirect or whatever, yeah, redirect and this isn't going to work.   It ain't gunna [sic] work.   You can strike my entire testimony.   You can do that, too.   I'm not going to be subjected to this.”

The trial court offered to allow defendant to retake the stand to answer questions on cross-examination.   The defendant responded, “I am not going to go back.   I want advisory counsel to handle the objections.   I will testify under oath as I have been testifying.   It was my wish to testify, but I'm not going to be playing all these unnecessary games.   This is unnecessary.   I'm acting in two capacities here, and he's using this as some sort of strategy to get me confused․”

The trial court again offered to allow the defendant to retake the stand.   The defendant accepted saying, “I'm not going to be antagonized unnecessarily.   If he wants to get to the issues, fine, we can do it.   But all this answer, answer, answer, I'm not going to go through all this.”

The defendant retook the witness stand, and the prosecution continued to question him concerning the market down the street from the victim's parents' house.   The defendant objected to the questions on the ground of repetitiveness, was overruled, and the following exchange took place:

“Q. [By Mr. Astin] Does that mean yes, you knew there was a market down the street?

“A. I told you it was there for nine or ten years, so apparently I had to know there was one down the street.   As I indicated earlier, I'm not going to keep going over the same subject.

“THE COURT:  Next question.

“MR. ASTIN:  Thank you, Your Honor.

“Q. [By Mr. Astin] When you got in the car, what were you intending to do?

“MR. HUNTER:  What we discussed at side bar, I'll be stepping down off the stand.   He can make his motion.”

The court excused the jury and requested the defendant to once again state his reasons why he didn't want to testify further on cross-examination.   Mr. Hunter replied:

“As I indicated, I'm not going to sit up here and answer the same questions over and over.   If he wishes to move on to the areas that are within the scope, I will answer.   I shouldn't have to continue to go over the same thing․   In good faith I took the stand, said what I had to say.   He has a right to cross-examine.   I'm not into playing all these little child games․”

After making sure that the defendant understood that his refusal to subject himself to further cross-examination would result in a motion to strike all of his testimony, the defendant refused to testify and the court granted the prosecutor's motion to strike all of the defendant's testimony and to instruct the jury not to consider it.   The defendant thereby lost his only opportunity to present his self-defense version of the shooting to the jury.

In People v. Reynolds (1984) 152 Cal.App.3d 42, 199 Cal.Rptr. 379, the trial court's striking of a defendant's testimony was upheld because the defendant's refusal to answer a particular question on cross-examination “severely limit[ed] the prosecution's right to effective cross-examination” and denied the opportunity to locate witnesses who could corroborate or refute the defendant's testimony.  (152 Cal.App.3d at p. 47, 199 Cal.Rptr. 379.)   The appellate court cautioned other courts:

“We recognize that the ruling in this case prevented defendant from exercising a fundamental right.   Therefore, we recommend that a full record be made by the trial court establishing the basis for the limitation.   In establishing the record, the trial court should recognize that the defendant is exercising a constitutional right and consider the following guidelines:  ‘Where the witness, after his examination in chief on the stand, has refused to submit to cross-examination ․ his direct testimony should be struck out.   On the circumstances of the case, the refusal or evasion of answers to one or more questions only need not lead to this result․ [¶] ․ regard [is] had chiefly to the motive of the witness and the materiality of the answer.’  [Citation.]

“In light of the critical right involved, the trial court should also realize that striking a defendant's entire testimony is a drastic solution, which is to be used after less severe means are considered.   For example, a partial strike is within the discretion of the trial court.  [Citation.] ․

“Another option to be considered is that the defendant's failure to respond to cross-examination may be considered by the jury in evaluating his or her credibility.   For example, in United States v. Hearst (9th Cir.1977) 563 F.2d 1331, the defendant testified in her own defense, and on cross-examination refused to answer most of the prosecutor's relevant questions concerning one period of time by [incorrectly] ‘invoking’ the Fifth Amendment privilege against self-incrimination 42 times.”

This case is analogous to Hearst and distinguishable from Reynolds.   As in Hearst, the defendant in this case was not refusing to answer all questions asked by the prosecution, but only those which the defendant considered, often erroneously, irrelevant or repetitive.   Unlike the testimony in Reynolds, the questions defendant refused to answer were not very material and defendant's obstreperous conduct appeared to be motivated more by ignorance of the allowable scope of cross-examination than an intent to conceal inculpatory evidence.   The trial court did not consider any means of dealing with the defendant's refusal other than striking his entire testimony, such as relying on the jury to consider the defendant's argumentative and evasive answers in evaluating his credibility.   The trial court could quite appropriately have selected the latter alternative, bolstered by an appropriate jury instruction, and moved the prosecutor along to his next topic of cross-examination by a timely “next question, counsel,” once the point respecting defendant's credibility had been made.   Failure to at least consider this option on the record constitutes an abuse of discretion and violation of the defendant's fundamental constitutional right to present his own testimony in his defense.  (People v. Reynolds, supra, 152 Cal.App.3d at pp. 45–46, 199 Cal.Rptr. 379 [importance of defendant's right to present own testimony].)

Respondent cites People v. Cornejo (1979) 92 Cal.App.3d 637, 155 Cal.Rptr. 238 in support of its position.   However, Cornejo held that the trial court erred in striking the defendant's testimony for failure to answer questions on cross-examination where the defendant refused to testify further without an opportunity to consult his attorney.   Similarly, in this case, the record indicated a definite possibility that the defendant would have continued to respond to questions on cross-examination if the trial court had appointed advisory counsel with whom the defendant could have consulted.  (Cf. People v. Cornejo, supra, 92 Cal.App.3d at pp. 655–656, 155 Cal.Rptr. 238.)

In view of the fundamental nature of the constitutional right involved and the obvious prejudice of denying the defendant the only means by which he could present his defense to the jury, striking the defendant's testimony was prejudicial error.

DENIAL OF ADVISORY COUNSEL TO ASSIST PRO SE DEFENDANT

Defendant contends that the trial court abused its discretion in refusing to appoint counsel to assist him in representing himself.   We agree.

 A trial court has a duty to exercise its sound and considered discretion in deciding whether to grant a pro se defendant's request for counsel to assist the defendant.  (People v. Bigelow (1984) 37 Cal.3d 731, 742–743, 745, 209 Cal.Rptr. 328, 691 P.2d 994 [advisory counsel];  People v. Hutton (1986) 187 Cal.App.3d 934, 941, 232 Cal.Rptr. 263 [defendant's request for co-counsel status];  but cf. People v. Davis (1987) 189 Cal.App.3d 1177, 1185–1186, 234 Cal.Rptr. 859, disapproved on other grounds in People v. Snow (1987) 44 Cal.3d 216, 225–226, 242 Cal.Rptr. 477, 746 P.2d 452 [“no onus on a trial court to exercise its discretion on [the appointment of co-counsel to assist a pro se defendant]”].2  Counsel to assist a pro per defendant should be appointed when the defendant makes a substantial showing that “the cause of justice will thereby be served and that the orderly and expeditious conduct of the court's business will not thereby be substantially hindered or delayed.”  (People v. Mattson, supra, 51 Cal.2d at p. 797, 336 P.2d 937;  People v. Hutton, supra, 187 Cal.App.3d at p. 942, 232 Cal.Rptr. 263.)   An abuse of discretion in failing to appoint counsel to assist a defendant is reversible per se.  (See People v. Bigelow, supra, 37 Cal.3d at pp. 744–746, 209 Cal.Rptr. 328, 691 P.2d 994 [failure to exercise discretion to appoint counsel in a capital case].)

A trial court abuses its discretion when it fails to consider relevant factors.  (See In re John F. (1983) 150 Cal.App.3d 182, 184–185, 197 Cal.Rptr. 495;  Visco v. Abatti (1983) 144 Cal.App.3d 904, 907, 192 Cal.Rptr. 833.)  “To exercise the power of judicial discretion, all material facts and evidence must be both known and considered, together with legal principles essential to an informed, intelligent and just decision.”   (People v. Davis (1984) 161 Cal.App.3d 796, 804, 207 Cal.Rptr. 846.)   While a reviewing court should normally defer to a trial court's discretion, discretion is abused and reversal required if the trial court “exceeds the bounds of reason, all of the circumstances being considered.”  (People v. Henderson (1986) 187 Cal.App.3d 1263, 1268, 233 Cal.Rptr. 141.)

The relevant circumstances, factors, and policies to be considered in deciding whether to appoint counsel to assist a pro se defendant derive from the defendant's Sixth Amendment rights to counsel and to represent himself.   In holding that an indigent defendant had the right to appointed counsel, the United States Supreme Court in Gideon v. Wainwright (1963) 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799, recognized that the central consideration was the need for counsel in order to have a fair trial.   By contrast, in Faretta v. California (1975) 422 U.S. 806, 817, 820–821, 833–834, 95 S.Ct. 2525, 2532, 2533–2534, 2540–2541, 45 L.Ed.2d 562, the key consideration was the autonomy and liberty of the individual to decide whether he would accept appointed counsel or represent himself.   It was and has been recognized that the right to a fair trial and the right to represent oneself run counter to each other.  (See Faretta v. California, supra, at pp. 832–834, 95 S.Ct. at pp. 2539–2540, and see generally Pearson, Mandatory Advisory Counsel for Pro Se Defendants:  Maintaining Fairness in the Criminal Trial (1984) 72 Cal.L.Rev. 697, 699–701, 708–709.)

In deciding whether to allow a defendant to proceed in pro per, a trial court cannot attempt to balance these conflicting rights.   If a defendant is “ ‘literate, competent, and understanding, and [is] voluntarily exercising his informed free will,’ ” a timely motion to proceed in pro per must be granted.   (People v. Joseph (1983) 34 Cal.3d 936, 945, 196 Cal.Rptr. 339, 671 P.2d 843.)   The farthest a trial court may go in considering the fairness of the trial that will result from a defendant's proposed self-representation is whether the defendant “possesses the mental ability to present a rudimentary defense, keeping in mind, of course, that technical legal knowledge is not required.”  (People v. Burnett (1987) 188 Cal.App.3d 1314, 1323, 234 Cal.Rptr. 67.)   Other factors such as the “nature of the charge” may not be considered.  (People v. Joseph, supra, 34 Cal.3d at p. 945, 196 Cal.Rptr. 339, 671 P.2d 843.)3

The appointment of counsel to assist the pro per defendant, whether in a standby, advisory, or co-counsel capacity, provides a means to balance the right of self-representation with the defendant's right to, and society's need for, a fair trial (See:  Mayberry v. Pennsylvania (1971) 400 U.S. 455, 468, 91 S.Ct. 499, 506, 27 L.Ed.2d 532;  Pearson, supra, 72 Cal.L.Rev. at pp. 711–716.)   While the courts have consistently held that a pro se defendant has no constitutional right to the assistance of counsel once he has waived the right to counsel to represent himself, the courts have also consistently held that the trial court has the discretion to appoint counsel in whatever capacity and to whatever extent necessary to achieve a fair trial while preserving the defendant's right to represent himself.  (People v. Bigelow, supra, 37 Cal.3d at pp. 742–743, 744–745, 209 Cal.Rptr. 328, 691 P.2d 994 [standby and advisory counsel];  People v. Hutton, supra, 187 Cal.App.3d at pp. 940–942, 232 Cal.Rptr. 263 [appointment of represented defendant to co-counsel status];  McKaskle v. Wiggins, supra, 465 U.S. at p. 184, 104 S.Ct. at p. 954 [standby counsel acted as co-counsel in examining witness to lay foundation].)

Reviewing courts had done little to define the factors which should be considered in the exercise of such discretion by a trial court until the California Supreme Court in People v. Bigelow, supra, mentioned four factors:  (1) the seriousness of the charges, (2) the factual and legal complexity of the case, (3) the level of the defendant's general education, and (4) the defendant's legal knowledge and experience.  (37 Cal.3d at pp. 743–744, 209 Cal.Rptr. 328, 691 P.2d 994.) 4

By quoting its previous decision on this issue in Mattson and the concurring opinion of Chief Justice Burger in Mayberry v. Pennsylvania, supra, 400 U.S. at page 467, 91 S.Ct. at page 505–506, the California Supreme Court in Bigelow made it clear that these four factors were not to be considered in a policy vacuum, but in the context of the need of the judicial process for orderliness and efficiency as well as a fair trial.

In Mattson the Supreme Court held that a trial court should not allow a defendant-co-counsel arrangement “unless the court on a substantial showing determines that in the circumstances of the case the cause of justice will thereby be served and that the orderly and expeditious conduct of the court's business will not thereby be substantially hindered, hampered or delayed.”  (51 Cal.2d at p. 797, 336 P.2d 937.)   In his concurring opinion in Mayberry, the Chief Justice said, “No circumstance that comes to mind allows an accused to interfere with the absolute right of a trial judge to have such ‘standby counsel’ to protect the rights of accused persons ‘foolishly trying to defend themselves,’ as Mr. Justice Douglas so aptly described it.   In every trial there is more at stake than just the interests of the accused;  the integrity of the process warrants a trial judge's exercising his discretion to have counsel participate in the defense even when rejected.   A criminal trial is not a private matter;  the public interest is so great that the presence and participation of counsel, even when opposed by the accused, is warranted in order to vindicate the process itself.”  (400 U.S. at p. 468, 91 S.Ct. at p. 506.)

 In other words, in evaluating the four factors set forth in Bigelow, a trial court should consider not only how the appointment would affect the orderliness and efficiency of the trial, but also whether the granting of the request would help achieve a fair trial, one in which the rights of the defendant were protected.  (See also:  Cano v. Municipality of Anchorage (Alaska App.1981) 627 P.2d 660, 664 [“In ruling on a defendant's request for representation in some combination of pro se and by counsel, the judge should be guided primarily by fair trial considerations, to assure a full hearing of the case and to avoid prejudice to the defendant.”];  Moorefield v. Garrison (W.D.N.C.1979) 464 F.Supp. 892, 900 [permitting advisory counsel to function as co-counsel would have assisted trial court in providing a fair trial for “headstrong, cantankerous and disputatious” defendant].)

The California Supreme Court in Mattson saw orderliness and efficiency as a limiting consideration on permitting a defendant-co-counsel arrangement, and some courts have been reluctant to appoint counsel to assist the pro per defendant fearing that another voice raised in behalf of the defense would complicate the proceedings, confuse the jury, and prolong examination.  (See, e.g.:  People v. Mattson, supra, 51 Cal.2d at p. 797, 336 P.2d 937 [requiring “substantial showing ․ that the orderly and expeditious conduct of the court's business will not thereby be substantially hindered, hampered or delayed.”];  McKaskle v. Wiggins, supra, 465 U.S. at p. 177, 104 S.Ct. at p. 950 [“multiple voices ‘for the defense’ will confuse the message”].)  If a defendant and co-counsel are each allowed to speak at will throughout the proceedings, to contradict each other, and to examine and cross-examine each witness in turn, the orderliness and efficiency of the proceedings will be adversely affected.

 However, the trial court has the inherent power to impose whatever rules and restrictions it finds necessary, both before and during trial as difficulties become apparent, to mold the defendant-co-counsel arrangement to promote, rather than harm, orderliness and efficiency.  (Cf. McKaskle v. Wiggins, supra, 465 U.S. at p. 184, 104 S.Ct. at p. 954 [defendant's right to represent himself not violated by trial court's use of standby counsel in variety of advisory and co-counsel capacities].)  Such measures could include restricting counsel assisting the defendant to an advisory capacity, limiting examination of particular witnesses to either co-counsel or the defendant to be specified in advance by the defendant, permitting only defendant or co-counsel to make objections during examination by the prosecution, and allowing argument to the jury by only one or the other.

The range of options is limited only by the requirement that the pro se defendant “preserve actual control over the case he chooses to present to the jury” and “participation by ․ counsel without the defendant's consent should not be allowed to destroy the jury's perception that the defendant is representing himself.”  (McKaskle v. Wiggins, supra, 465 U.S. at p. 178, 104 S.Ct. at p. 951.)   This limitation is qualified by the court's ability to order participation by counsel as is necessary to achieve the defendant's “own clearly indicated goals” or to prevent “ ‘abuse[s to] the dignity of the courtroom’ ” (id., 465 U.S. at p. 183–184, 104 S.Ct. at p. 953–954), and to use counsel assisting the defendant to perform functions that the court would normally engage in while conducting a trial with a pro se defendant, such as calling or questioning witnesses (id., 465 U.S. at p. 177, fn. 7, 104 S.Ct. at p. 951, fn. 7).   Many of the arrangements made for the representation of a party by multiple counsel will work in the context of defendant-counsel dual representation.

Aside from shaping the defendant-counsel relationship to prevent interference with orderly and efficient proceedings, appointment of counsel to assist the defendant gives the court a tool that can be used to ameliorate many of the difficulties inherent in pro per cases.

“Given the general likelihood that pro se defendants have only rudimentary acquaintanceship with the rules of evidence and courtroom protocol, a measure of unorthodoxy, confusion and delay is likely, perhaps inevitable, in pro se cases.   The energy and time toll on the trial judge, as fairness calls him to articulate ground rules and reasons that need not be explained to an experienced trial counsel, can be relieved, at least in part, by appointment of an amicus curiae to assist the defendant.   If defendant refrains from intentionally obstructive tactics, amicus would be available to provide advice on procedure and strategy.  [¶] On the other hand, a potentially unruly defendant may and should be clearly forewarned that deliberate dilatory and obstructive behavior may operate in effect as a waiver of his pro se rights and, in that event, amicus will be ready to assume exclusive control of the defense.”  (United States v. Dougherty (D.C.Cir.1972) 473 F.2d 1113, 1124–1125, fns. omitted, cited with approval in People v. Bigelow, supra, 37 Cal.3d at pp. 742–743, 209 Cal.Rptr. 328, 691 P.2d 994.)

“․ In a cooperative arrangement between defendant and counsel, decorum is most likely to be enhanced rather than diminished by allowing counsel to advise the defendant on proper courtroom procedure.  [Citation.]   The defendant's preference, a pre-existing attorney-client relationship, and the willingness of counsel to proceed are important additional considerations.”  (Cano v. Municipality of Anchorage, supra, 627 P.2d at p. 664.)

“․ A defendant's Sixth Amendment rights are not violated when a trial judge appoints standby counsel—even over the defendant's objection—to relieve the judge of the need to explain and enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine obstacles that stand in the way of the defendant's achievement of his own clearly indicated goals․  [¶] At [the defendant's] trial a significant part of standby counsel's participation both in and out of the jury's presence involved basic mechanics of the type we have described—informing the court of the whereabouts of witnesses, supplying [the defendant] with a form needed to elect to go to the jury at the punishment phase of trial, explaining to [the defendant] that he should not argue his case while questioning a witness, and so on.  [Citations to record.]   When [the defendant] attempted to introduce a document into evidence, but failed to mark it for identification or to lay a predicate for its introduction, counsel, at the trial court's suggestion, questioned the witness to lay an appropriate predicate, and [the defendant] then resumed his examination.  [Citation to record.]   Similarly, the trial judge repeatedly instructed [the defendant] to consult with counsel, not with the court, regarding the appropriate procedure for summoning witnesses.”  (McKaskle v. Wiggins, supra, 465 U.S. at p. 184, 104 S.Ct. at p. 954.)

In People v. Siler (5 Dist.1987) 154 Ill.App.3d 102, 107 Ill.Dec. 13, at pages 18–19, 506 N.E.2d 756, at pages 761–762, the appellate court approved the following use of co-counsel described 107 Ill.Dec. at pages 16–17, 506 N.E.2d at pages 759–760:

“․ the court ․ required the public defender to ask those questions pertaining to defendant's character because defendant was not able to phrase proper questions to the witnesses.   The court also warned defendant that, if defendant continued to inject unsworn testimony into the questions or repeat the witnesses' answers or examine beyond the scope of the offers of proof, the court would either prohibit defendant from calling the witnesses or require the public defender to conduct all the questioning.  [¶] Nevertheless, defendant's misconduct continued and the court, over defendant's objection, ordered that the public defender complete the examination of all the remaining witnesses.   The public defender had taken an active role in the trial up to this point, with defendant's consent, objecting to questions and testimony, conducting some direct examination, making offers of proof and arguing motions and proceedings concerning the admission or exclusion of exhibits.   After this point, however, the public defender examined the last eight defense witnesses, argued defendant's motion for directed verdicts and conducted the instruction conference.   The defendant was allowed to give a closing argument, which the public defender supplemented.” 5

The above examples show that, rather than to be feared as an arrangement which will complicate and prolong proceedings, the appointment and judicious use of counsel to assist a pro per defendant gives the court flexibility and assistance in dealing with the difficulties involved in a pro se defense.

 In this case, the defendant at times sought co-counsel, at other times advisory counsel.   The grounds stated by the defendant in his pretrial motions for assistance of counsel specifically raised the issues of the complexity of the case and the inadequacy of the defendant's legal education and experience to handle the case without legal assistance.   The grounds included the need for professional advice on trial strategy and tactics and in selecting a jury, making evidentiary objections during trial, and in making an “orderly, concise ․ presentation” of his case.   He also stated his need for assistance with legal research, the cross-examination of hostile witnesses, and the presentation of “scientific” evidence and his own testimony.   The defendant's grounds were prophetic.

The trial court denied defendant's numerous pretrial requests for advisory counsel or co-counsel on the grounds that the court found the defendant literate and intelligent, able to argue and present evidence as indicated by the number of motions the defendant presented in which he had had to make legal arguments and present evidence, and that the case was not overly complex either legally or factually.6

This statement of reasons does not show that the trial court considered the first factor, the seriousness of the charges against the defendant.  (See People v. Bigelow, supra, 37 Cal.3d at p. 743, 209 Cal.Rptr. 328, 691 P.2d 994.)   While this case was not as serious as Bigelow, a capital case, the charge of attempted murder and enhancement allegations of great bodily injury and gun use resulted in a 14–year sentence.   While not controlling, the seriousness of this case merited some consideration.   As to the defendant's general educational level, the third factor, the trial court found the defendant literate and intelligent, but did not consider the grade in school last attended by defendant as did the court in Bigelow (37 Cal.3d at p. 743, 209 Cal.Rptr. 328, 691 P.2d 994 [ninth grade] ).   However, the trial court's observations of the defendant in the presentation of written and oral argument during the pretrial proceedings and trial were a sufficient basis on which to determine that the defendant was literate and intelligent, the essential consideration underlying the third factor, general educational level.

As this statement of reasons does show, the only factors to receive explicit consideration were the complexity of the case and the defendant's legal knowledge and experience.   The trial court found the case not to be “overly complex” and the defendant capable of presenting evidence and legal argument based on his handling of pretrial motions, the defendant's only prior legal experience mentioned by the court.

However, in making this evaluation the trial court did not take into consideration the unusual background and emotional character of this case.   The presentation of evidence at a motion differs significantly from the presentation of evidence in front of a jury in a case that involves the defendant's examination of the victim, who was also the defendant's long time girlfriend and mother of his child, as well as the victim's family with whom there was a history of some discord.   The defendant, the victim, and her family were the only witnesses to the incident.   The defendant's version differed markedly from that of the victim and her family.   Thus, a presentation of the defendant's testimony and cross-examination of the victim and her family which at least avoided alienating the jury was essential to a fair trial.   In this light, the defendant's request for the assistance of counsel to advise him regarding strategy and to examine him and cross-examine the victim and her family made good sense.   Presenting evidence and argument at a pretrial motion by no means prepares a pro se defendant to do the same during the course of a jury trial under these unique circumstances.

Furthermore, the record nowhere indicates that the trial court considered the difficulty of the case and defendant's legal education and experience in the light of the usefulness of an appointment of counsel to assist the defendant in promoting the orderliness and efficiency of the trial.   In particular, the record nowhere indicates that the trial court considered the defendant's stated willingness to defer to an assisting attorney's advice on matters of strategy and examination of witnesses and to allow the appointed attorney to handle some of the examination and argument.   This statement indicated a high probability that counsel assisting the defendant would have had significant influence over the defendant's strategy and conduct of the trial.   As the cases quoted above indicate, the appointment of counsel would have given the trial court important leverage to control the defendant's conduct, both by the appointed attorney's education and restraint of the defendant and by the court having the option of terminating the defendant's pro se representation and having the advisory counsel or co-counsel proceed with the remainder of the case, thereby avoiding the necessity of a retrial.   Far from creating disorder, the appointment of counsel in this case would have promoted order and fairness.   The failure to consider these relevant circumstances and policies as they related to an appraisal of the complexity of the case was an abuse of discretion.  (See People v. Davis, supra, 161 Cal.App.3d at p. 804, 207 Cal.Rptr. 846 [proper exercise of judicial discretion requires consideration of “all material facts ․ together with legal principles”].)

If the trial court had considered the unique circumstances of this case in the light of the usefulness of advisory or co-counsel in achieving a fair, efficient, and orderly trial, we feel confident that the trial court would have granted one of the motions requesting assistance of counsel.   If the trial court had taken into consideration the unique circumstances of this case and the usefulness of counsel to assist the pro per defendant and still found that the defendant was capable of presenting evidence in such an emotionally charged and delicate situation based only on the defendant's presentation of evidence at pretrial motions, the trial court would have “exceed[ed] the bounds of reason” (People v. Henderson, supra, 187 Cal.App.3d at p. 1268, 233 Cal.Rptr. 141).   The considered exercise of discretion to which defendant was entitled (see People v. Bigelow, supra, 37 Cal.3d at p. 745, 209 Cal.Rptr. 328, 691 P.2d 994;  People v. Hutton, supra, 187 Cal.App.3d at p. 941, 232 Cal.Rptr. 263) required the granting of the defendant's request for advisory counsel or co-counsel.

In addition to abusing its discretion by denying the pretrial motions for counsel to assist defendant, the trial court committed a further abuse of discretion by denying similar requests during trial.   By the time of defendant's request made during the prosecution's cross-examination of the defendant, the inability of the defendant to present his case and protect his rights had been manifested by his loss of important constitutional rights, breaches of decorum, and vengeful and inept examination of witnesses.

The first fundamental constitutional right lost to the defendant was his right to challenge a use of peremptory challenges by the district attorney that may have been racially motivated.  (People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.)   Defendant was black and the victim and most, if not all, of the key witnesses against him were white.   After the exclusion of one prospective black juror, the defendant commented that he did not want a second prospective black juror excluded by a peremptory challenge exercised by the district attorney.   The trial court correctly responded that this was not the appropriate time to bring such a motion.   Unfortunately, the issue was never addressed by the defendant until well after trial had commenced, and his motion was correctly denied as untimely.   Defendant did not know he had to bring his Wheeler motion prior to the completion of jury selection, or, if he knew, forgot to do so.  (People v. Ortega (1984) 156 Cal.App.3d 63, 67–68, 70, 202 Cal.Rptr. 657.)   Even though an adequate record for review was not developed by the defendant, the record does reveal that at least two and possibly three or four black jurors were precluded from sitting on the defendant's jury by the prosecution's peremptory challenges.   Whatever the number, all of the black prospective jurors were eliminated by the district attorney's peremptory challenges.   Because of the defendant's failure to bring a timely motion, we cannot be assured that he was tried by a racially unbiased cross-section of the community.

The defendant's failure to bring a timely Wheeler motion shows that he either did not know when to bring it, or, distracted by his participation in voir dire and his trial preparation, he forgot.   Either way, this failure was at once an indication that the trial court seriously erred in failing to appoint counsel to assist the defendant and that such an appointment would be necessary to ensure a fair trial.

A second constitutional right lost to the defendant during the trial was his due process right to the exclusion of evidence of prior criminal acts to the extent their admission was inordinately prejudicial.  (See:  People v. Castro (1985) 38 Cal.3d 301, 312, 316, 211 Cal.Rptr. 719, 696 P.2d 111 [prior convictions];  People v. Holt (1984) 37 Cal.3d 436, 450–451, 208 Cal.Rptr. 547, 690 P.2d 1207 [prior criminal acts for which defendant was not convicted].)  Such evidence included testimony that the defendant had been in jail, prison, on parole, and had killed two persons.   Evidence of one prior felony conviction for interstate transportation of stolen securities was admitted by the defendant, thereby waiving an opportunity to object to the felony on the ground of insufficient documentation since the prosecutor only had a “rap sheet.”  (See People v. Hays (1967) 250 Cal.App.2d 373, 378, 58 Cal.Rptr. 293 [preferred method of impeaching witness who denies prior conviction is by certified copy of the judgment].)  If defendant's testimony had not been stricken, this prior conviction might have been excluded for the additional reason that the prosecution had stated before defendant's testimony that it would not be proffering any evidence of prior convictions.   A second felony conviction had been excluded by the judge after exercising his discretion under Evidence Code section 352.   The judge had ruled that no mention should be made by the prosecution of the defendant's parole status.   Nevertheless, evidence of his ex-convict status and the even more damaging suggestion that he had killed before were elicited by the defendant's inept examination of witnesses, and he failed to move to strike the testimony.

Just as with the failure to bring a timely Wheeler motion, defendant had some awareness of his crucial due process right not to be convicted of the crime now charged by irrelevant evidence of other alleged criminal acts or convictions.  (See People v. Holt, supra, 37 Cal.3d at pp. 450–451, 208 Cal.Rptr. 547, 690 P.2d 1207 [“ ‘ “highly inflammatory and prejudicial effect” on trier of fact’ ” of other crimes evidence].)  This was yet another sign that the trial court had erred in finding the defendant could conduct a defense that would afford him a fair trial without an attorney's assistance.

As described in the first section of this opinion, a third fundamental constitutional right was lost to the defendant during the trial—the right to present his own testimony in his defense.   The loss of this right was related to the failure to appoint counsel to assist the defendant in two ways.   First, the defendant expressly stated that he would retake the stand if he were appointed co-counsel to assist in making objections to questions asked him by the district attorney as well as to prepare redirect examination.  (Cf. People v. Cornejo, supra, 92 Cal.App.3d at p. 656, 155 Cal.Rptr. 238 [“strong likelihood” that defendant would have answered questions on cross-examination had he been allowed to consult with counsel already appointed].)  Although it was not proper for the defendant to try to force the court to accede to his request for assistance of counsel by refusing to continue his cross-examination, nevertheless the appointment of counsel would have been an appropriate response if it would have succeeded in keeping the defendant on the stand for cross-examination to preserve the defendant's right to present his own testimony in his defense.   Second, defendant's frustration with the prosecution's questioning was the natural consequence of his feeling of powerlessness in dealing with an extremely stressful situation alone and without professional assistance to help him understand the proceedings.   The trial court as a neutral party could not fulfill that role with the same effectiveness as a professional advocate devoted to the defendant's interests exclusively.

In addition to failing to preserve these important constitutional rights, the defendant's conduct of his case showed that, without professional assistance, he was incapable of the sensitive, skilled handling of the case necessary to avoid alienating the jury and to present his case in the best light possible.   While the defendant's version of the event was that the victim's wounds were the accidental result of a struggle between himself and the victim's father, he showed absolutely no sympathy for the victim's disabling injuries to both hands.   His cold-hearted, persecutory examination of the victim and her family were inconsistent with his defense and prejudiced the jury against him.   The defendant constantly made the beginner's mistake of trying to prove his case with the opposing party's witnesses, only to reinforce the prosecution's version of events.   Defendant refused to answer some questions on cross-examination because he incorrectly thought they were repetitive and irrelevant, oblivious of the need for him to answer all the questions on cross-examination in a patient and gentlemanly fashion to better convince the jury of his credibility.

The trial court held innumerable side bar conferences to counsel the defendant on points of substantive law, procedure, decorum, and to hear argument.   These conferences constantly interrupted the flow of the proceedings and undoubtedly frustrated the jury.   The defendant's direct examination of the victim, her family, and other prosecution witnesses in a counterproductive attempt to prove his case pointlessly added to the duration of the proceedings.   What had been estimated to the jury as a 15–day trial ultimately consumed 23 days.   The jury could not help but observe that this constant interruption and delay were due to the defendant's misguided tactics and legal ignorance and resent him for it.

Out of what can only be explained as ignorance of the effect his actions were having on the jury, the defendant constantly breached rules of courtroom decorum.   On numerous occasions the defendant made abusive and argumentative comments to witnesses, the district attorney and the court.   He twice continued to argue in the presence of the jury in defiance of the court's order so as to require the court to hastily usher the jury out of the courtroom.   He accused the prosecution of committing “tricks.”

Thus, the defendant proved correct when he stated as grounds for his request for the assistance of counsel that he needed a professional's guidance and assistance to present his case in an “orderly” and “concise” manner.   Rather than an orderly and concise presentation of his defense, the defendant's actions turned what should have been a dignified and efficient proceeding into a circus as attested by a number of comments made by both the judge and deputy district attorney.

During the defendant's cross-examination of the victim, he asked the victim whether winning meant everything to her and then stated, “Fact, didn't win, because you lost your finger, and you are very revengeful, aren't you Miss Howard?”   The trial judge excused the jury and lectured the defendant on asking argumentative questions.   At one point the trial court stated, “What I might suggest to you, I'm not telling you how to try your case, but the jury is observing everything that is occurring in this trial.   They have been instructed to do that, and I might suggest that the atmosphere during the past five minutes of the questioning you've been conducting is probably not conducive to your case.   It isn't positive and favorable towards your case.”   The deputy district attorney also commented, “All of his questions have been designed to harass [the victim].   Almost all of them have been of an argumentative nature, and I would observe for the record that when the Court took the recess the [victim] was in tears.   I think his tactic of harassing the victim has been successful.   As far as strategy, as the Court has made the observation as to whether or not that's a successful tactical [sic] or not, I am making no comments.”   After a response from the defendant, the trial court said, “․ You are arguing with the witness, and in my professional opinion based on my experience it's a negative to your case before the jury.”

At a side bar conference during the defendant's cross-examination just before he first refused to continue the cross-examination, the trial court stated:

“THE COURT:  Mr. Hunter, you are not responding to questions.   You are making comments and arguments, and this last comment [calling the prosecution's questions “ridiculous”] hasn't been requested stricken.”

In the same conference the trial court warned, “․ you have to refrain from making those voluntary and gratuitous comments to the jury, because if you do, I'm going to have to revoke your pro per privileges and I don't want to do that.”

Thus, the defendant proved himself right when he stated as grounds for his request for assistance of counsel that he needed advice and assistance with strategy, tactics, cross-examination of witnesses, and the presentation of his own testimony.   Defendant's conduct of his defense up to this point should have convinced the trial court that appointment of counsel to assist the defendant, and the court in controlling the defendant, was needed.   In addition to appointed counsel informing the defendant of how his examination and conduct were damaging his case, the trial court could have made more real its threat to revoke the defendant's pro per privileges by pointing to his counsel's availability to take over the defense.   The trial court's appraisal of defendant as able to present evidence proved terribly wrong—because of his lack of legal experience and education, he was about to have his own testimony stricken, the only evidence supporting his defense.

Despite defendant's request for co-counsel shortly after the above quoted comments were made and before his testimony was stricken, it is plain from the record that the judge never considered the appointment of co-counsel or advisory counsel as a potential solution to the court's problem in controlling the defendant's behavior and promoting an orderly, efficient, and fair trial.   By this point the self-destructive character of the defendant's conduct of his defense could not be ignored.   Now faced with the possible loss of the defendant's only opportunity to present a defense, the trial court did not even rule on the defendant's request for co-counsel.7

Failure to consider the factors, policies, and circumstances, and to reevaluate the court's earlier denials as the trial progressed, amounted to an abuse of discretion.   Appointing co-counsel may not have had the effect of repairing the damage already done to the defense and may have entailed some delay while appointed counsel acquainted himself with the case, but it would have kept the defendant on the stand and moderated or prevented the abuses which took place thereafter, including further breaches of decorum, unnecessary further examination of the victim and her family, and the incessant sidebar conferences.   The defendant's self-destructive presentation culminated with his calling of the prosecuting attorney to the witness stand on surrebuttal to accuse him of prosecuting the case against the defendant for the sole purpose of winning another case.   The district attorney answered that he was solely motivated by a belief that the defendant was guilty.   The trial court immediately struck the answer and admonished the jury appropriately, but it is hard to unring a bell so loudly rung.   The jury certainly perceived the undignified quality of the trial and attributed the fault to the defendant, prejudicing the jury against the defendant for reasons unrelated to the state of the evidence.

The trial court's failure to appoint counsel to assist the defendant in his pro se defense resulted in a trial that “could rightly be described as a ‘ “farce or a sham.” ’ ”  (People v. Bigelow, supra, 37 Cal.3d at p. 745, 209 Cal.Rptr. 328, 691 P.2d 994.)   This unfair, disorderly, and inefficient proceeding was caused by the defendant's ignorance and inexpertise, the lack of counsel to assist him, and the peculiar background and circumstances of the alleged attempted murder.   The loss of fundamental constitutional rights, the admission of unduly prejudicial evidence, the abusive examination of witnesses, the derogatory comments, the obstreperous conduct, the constant side bar conferences, the refusal to answer questions on his cross-examination by the prosecution, defendant's attempt to examine the prosecuting attorney, and the unduly lengthy and disorderly proceedings combined to destroy the defendant's credibility, alienate the jury, and produce a trial which did not meet the minimum requirements of fairness necessary for the “vindic[ation of] the process itself,” in the words of Chief Justice Burger.  (Mayberry v. Pennsylvania, supra, 400 U.S. at p. 468, 91 S.Ct. at p. 506.)

 In this context, the trial court's denial of counsel to assist the defendant gives the appearance of punishing the defendant for his exercise of his right to represent himself by denying him the assistance the defendant needed to effectively exercise that right.   If the right to represent oneself is truly of constitutional dimension, a trial court cannot inhibit its exercise by unreasonably denying counsel to assist a pro se defendant, as was done in this case.   The trial court's denial was unreasonable because it failed to consider at all the seriousness of the attempted murder charge and enhancements, and failed to consider the complexity of the case and the defendant's legal education and experience in the light of all the pertinent facts and circumstances of the case and the policy considerations of promoting an orderly, efficient and fair trial.

The judgment is reversed.

FOOTNOTES

FN1. All section references are to the Penal Code unless otherwise indicated..  FN1. All section references are to the Penal Code unless otherwise indicated.

2.   We disagree with the court in People v. Davis, supra.   We perceive no reasoned distinction between the different forms of assistant counsel insofar as the trial court's duty to exercise sound discretion in deciding to, or not to, appoint counsel to assist a pro se defendant.   “Advisory counsel” gives advice but does not participate in the conduct of the proceedings;  co-counsel both advises and participates.  (See People v. Doane (1988) 200 Cal.App.3d 852, 860–861, fn. 2, 246 Cal.Rptr. 366.)  “Standby counsel” is ready to participate in either or both capacities at the request of court and/or defendant.  (See McKaskle v. Wiggins (1984) 465 U.S. 168, 170–173, 104 S.Ct. 944, 947–948, 79 L.Ed.2d 122.)   While counsel in these roles perform different functions and have a different impact on the proceedings, failure at least to consider whether appointment of co-counsel could assist the defendant and the trial court to achieve a fair trial abuses the trial court's discretion in the same manner as the failure to consider appointment of advisory counsel in Bigelow.  (See People v. Mattson (1959) 51 Cal.2d 777, 797, 336 P.2d 937 [both granting defendant co-counsel status and appointing advisory counsel within court's sound discretion].)  We also disagree with the attempted distinction between a court granting a represented defendant the right to participate in the proceedings and a court appointing co-counsel to assist a pro se defendant.   Either route leads to a defendant-co-counsel arrangement and considered discretion should be required in either case.

3.   While we hold that defendant's requests for counsel to assist him should have been granted in order to achieve a fair trial, we by no means intend to imply that defendant's best chance of success lies with an assisted pro se defense.   In fact, given the defendant's poor judgment on matters of trial strategy and inept performance in this trial, the court on retrial should consider whether a decision by defendant to once again waive his right to representation exclusively by counsel and proceed in pro per, even with assistance of counsel, can be found knowing and intelligent.

4.   Although the Supreme Court in Bigelow held that the trial court had abused its discretion by failing to exercise its discretion to appoint advisory counsel at all, it nevertheless went on to state that even if the trial court had ruled that it did have discretion to consider such an appointment and had still failed to appoint advisory counsel, the Supreme Court would still have reversed because a consideration of the four factors listed above permitted only one conclusion in that case.  (37 Cal.3d at p. 743, 209 Cal.Rptr. 328, 691 P.2d 994.)

5.   Other cases exemplifying the use of advisory counsel and co-counsel include State v. Lehman (1987) 137 Wisc.2d 65, 403 N.W.2d 438, 445 (reviewing file, legal research, discussing case with defendant, motion preparation and filing, locating and interviewing witnesses) and Koehler v. State (Ind.1986) 499 N.E.2d 196, 198 (gave advice and made motions and objections).

6.   The trial court was not entirely unresponsive to the grounds expressed by the defendant for the appointment of counsel to assist him.   It allowed the defendant to testify in a narrative fashion.   It arranged to have the defendant afforded additional access to the jail law library and authorized defendant's legal runner to copy legal materials from the county law library that the jail library lacked.   When the defendant professed an ignorance of jury instructions, the trial court gave the defendant time to review CALJIC and prepared a list of suggested jury instructions for him to review.   The trial court liberally granted continuances and recesses to permit the defendant to prepare for the next witness or stage of the proceedings.   Throughout the trial the court advised the defendant on many points of law, evidence, and decorum during frequent side bar conferences in and out of the presence of the jury.   However, the trial court's assistance as a neutral party proved woefully inadequate as a substitute for the assistance of a professional advocate devoted exclusively to the defendant's interests.

7.   After the defendant requested assistance of counsel for the preparation of jury instructions, the trial court denied that motion and stated:  “[¶] Incidentally, I don't know whether I ruled on your request for advisory counsel earlier to assist you in preparing for your testimony, but if I didn't, I'll now rule just for the record.   The Court finds that at the time of the request, the stage of the trial, its observations of how you've represented yourself up to now, that it would not be in the interests of justice to grant that request, so I deny that request for advisory counsel.  [¶] When I commented that based upon my observations of how you have represented yourself up to now, it's my feeling that it's been a representation such that you are aware of what's going on, you are aware of procedures, you are aware of the process, and it would not be in the interests of justice to grant that request.”These findings are not supported by the defendant's conduct as reflected in the record and are an abuse of discretion.

CAMPBELL, Presiding Justice.

McDANIEL and SCHULTE,* JJ., concur.

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