THE PEOPLE v. PERRY CHARLES BUTLER (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

After his right to self-representation was revoked because of repeated instances of disruptive conduct, Perry Charles Butler pleaded no contest to one count of resisting an executive officer and admitted having served one prior prison term for a felony.   Pursuant to the negotiated plea agreement an additional charge of battery with injury on a police officer and the special allegation that Butler had suffered a prior strike conviction within the meaning of the “Three Strikes” law were dismissed, execution of a four-year state prison sentence was stayed and Butler was placed on five years formal probation.   On appeal Butler contends the trial court abused its discretion in revoking his right to self-representation.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Butler's Arrest ;  the Charges ¹

According to Los Angeles Deputy Sheriff Clinton Skaggs, at 1:30 a.m. on March 7, 2008 he and his partner, Deputy Grant Roth, observed Butler looking into a parked car and appearing to lift the door handle to see if the car was locked.   Believing Butler may be attempting to tamper with or steal the car, the deputies drove toward Butler, who, upon seeing them, began to walk away.   The deputies ordered Butler to stop, turn around and walk toward them;  Butler refused, responding, “Fuck you.   You can't tell me what to do.”   After repeated orders, Butler finally stopped and turned around, but placed his hands in his pockets.   Fearing he might have a weapon, the deputies told Butler to remove his hands from his pockets;  Butler would not comply.   Skaggs finally shot him with pepper spray, and Roth handcuffed Butler.   While walking him to the patrol car, Butler began to stiffen his legs requiring the deputies to pull him forward.   The deputies pushed Butler onto the hood of the car to control him.

While Deputy Skaggs walked to the back of the patrol car, Butler kicked Deputy Roth in the leg.   The deputies then forced Butler to the ground, held him there until he agreed to cooperate, performed an arrest search and placed him in the back of the patrol car.   Because they believed his behavior suggested he may have been intoxicated or under the influence of drugs, Skaggs attempted to conduct several field sobriety tests including taking Butler's pulse.   When Skaggs placed his fingers on Butler's wrist, Butler, whose hands were cuffed behind him, lifted his arms so as to catch Skaggs's fingers in the handcuffs and twisted his arms in an attempt to break his fingers.   Skaggs punched Butler twice and freed his fingers.   Skaggs and Roth went to the hospital where they were examined.   Skaggs had a red mark on his finger, but no cuts or scrapes;  Roth had a skinned knee that had to be cleaned.

According to Butler, he was walking down the street and smoking a cigarette when the deputies pulled up and ordered him to come to them.   Butler, in turn, demanded the deputies tell him the cause for stopping him.   After Deputy Skaggs told Butler he was littering every time his cigarette ash fell onto the street-not that he was suspected of tampering with or attempting to steal a car ² -Butler got into an argument with Skaggs because he did not believe that was a sufficient basis to stop him.   Butler asserts he nevertheless complied with the deputies' orders;  but, after handcuffing Butler, Skaggs began to curse at him, and Butler cursed back.   The deputies then beat Butler, put him in the patrol car and sprayed him with pepper spray.   Butler was taken to the hospital and treated for injuries.

Butler admitted on cross-examination he had been convicted in 2000 of battery with injury on a peace officer (Pen.Code, § 243, subd. (c)(2)).³

Butler was charged by information on April 15, 2008 with one count of resisting an executive officer (§ 69) (count 1) and one count of battery with injury on a peace officer (§ 243, subd. (c)(2)) (count 2).   The information specially alleged Butler had suffered one prior serious or violent felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds.(b)-(i), 1170.12, subds (a)-(d)) and had served a prior separate prison term for a felony within the meaning of section 667.5, subdivision (b).

2. The Grant of Butler's Request for Self-representation and Admonishment About Interrupting the Court

At the felony arraignment hearing on April 21, 2008 before Judge Charles A. Chung, Butler, who had represented himself at the preliminary hearing, asserted his Sixth and Fourteenth Amendment right under Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562] (Faretta ) to continue to represent himself.   The court required Butler to complete a second advisement and waiver of counsel form (commonly referred to as a Faretta waiver) to ensure Butler understood the dangers and consequences of self-representation.   The court also orally warned Butler of many of the dangers of self-representation reflected on the Faretta waiver, including that Butler would be treated “the way [the court] treat[s] all of the attorneys” and would “have to abide by the same rules.”   During the warning Butler interrupted the court, and the court admonished him:

“The court:  Do you understand you have limited access to funds and the library as well as other supplies and materials?   Do you understand that?

“Mr. Butler:  I do want to make a motion to the court.

“The court:  But you understand you have limited access;  is that right?

“Mr. Butler:  No, I don't.   I believe under-

“The court:  Hold on.

“Mr. Butler:  -987-

“The court:  I will ask you to stop interrupting.   You understand that you can file certain motions but there will be a very good chance that you will have limited access to funds and books.   It may be that you have full access but it may be that you have limited access.   Do you understand that?

“Mr. Butler:  There is a case called-

“The court:  Okay. This is the third time I'm going to ask you.   You can argue your motion once I grant your pro. per. status but right now I simply want to advise you, you may have limited access.   Do you understand that?

“Mr. Butler:  Yes. I'm not trying to argue with the court, your Honor, but there are constitutional rights that a pro. per. defendant does have.

“The court:  For the fourth time.

“Mr. Butler:  Yes, I do, your Honor.   I understand what you are saying.”

Shortly after this exchange, the court asked Butler, “Do you understand that if you act in a disruptive manner such as interrupting the court or acting out in any other way, then your pro. per. status could be revoked?”   Butler responded he understood.

After finding Butler understood the dangers of self-representation, the court also ascertained Butler, who had worked as a paralegal and represented himself in two previous trials, had some legal experience.   Finding Butler had knowingly and voluntarily waived his right to counsel, the court granted Butler's request to represent himself.   The court also granted Butler's request to continue his arraignment so he could file a demurrer.

3. Proceedings Before Judge Chung During Which Butler Was Admonished Because of His Disruptive or Inappropriate Conduct

At the continued arraignment hearing on May 5, 2008 Butler requested removal of his handcuffs.   An exchange then took place between the court and Butler during which the court again admonished Butler about his conduct:

“The court:  The record will reflect that [Butler] was unhandcuffed.   My bailiff gave him certain instructions.   Mr. Butler did not respond and then when he finally did respond, he talked back to the bailiff.   Mr. Butler, just to let you know, your pro. per. status is contingent upon you behaving and you are off to a bad start.   So I'm letting you know now if you talk back to my bailiff again, you are liable to have your pro. per. status revoked.   Do you understand that?”

“Mr. Butler:  Your Honor, I know how to act in court.

“The court:  I want a simple yes or no.   Do you understand that?

“Mr. Butler:  Yes, I do, but I also know how to act in the courtroom and I don't need him to address me like that.

“The court:  The record will now reflect that he is now talking back to the court.   Sir, my bailiff gave a simple instruction.   All it required was for you to answer.   You do not need to talk back, and if you do talk back to the court or the bailiff, you will have your pro. per. status revoked.   Do you understand that?

“Mr. Butler:  Yes, I do.”

Shortly after this exchange Butler asked whether the court was biased or prejudiced against him and indicated he was going to seek to disqualify Judge Chung.   When the court suggested it would “provide the written motions for you now if you want them,” Butler responded, “No, I'm not going to waste a 170.6 on you.   I will file a motion for cause.”   Butler did not file a motion to disqualify Judge Chung at this point.

Approximately one month later, on the morning of June 4, 2008, Judge Chung presided at a hearing to consider Butler's motions to set aside the information (§ 995) and to suppress evidence (§ 1538.5).⁴  After the court denied the section 995 motion, Butler objected that, in articulating its findings, the court had revealed it had prejudged Butler's suppression motion, which had not yet been argued, and thus was “not fit to hear” it.   During an exchange on this issue, the court admonished Butler not to interrupt while the court was speaking:  “This is the second time now I'm telling you to stop interrupting me.   Let's understand the rules․  When I talk, you stop talking.   When I talk, you do not interrupt me.”   After additional warnings by the court, Butler argued it was the court that was interrupting Butler in violation of his rights.   Butler finally requested the court recuse itself from hearing the suppression motion.⁵  The court denied the request, stating, “You can file a formal 170.1 That sounds like that is what you are verbalizing.   I won't educate you.”   Butler responded, “I need no education from you, your Honor.”   The court continued the matter until the afternoon to give Butler an opportunity to file a 170.1 motion.

When the hearing resumed in the afternoon, the court stated, “Mr. Butler, I want to start off-I think I owe you an apology.   As I think on it, I was too harsh on you this morning and I do want to apologize for that.”   The hearing was then continued to the following day because the prosecution's witnesses were not present.   Judge Chung also denied Butler's oral request to disqualify him pursuant to Code of Civil Procedure section 170.1.

At a morning hearing on June 5, 2008, Butler again raised his concerns the court was prejudiced or biased against him and treating him discourteously.   The court continued the hearing until the afternoon to allow for the processing of Butler's Code of Civil Procedure section 170.1 disqualification motion.   During an afternoon hearing, Butler's statement of disqualification was struck pursuant to Code of Civil Procedure section 170.4, subdivision (b), because, on its face, it disclosed no legal grounds for disqualification.

After ordering the statement of disqualification stricken, the court agreed to take testimony on Butler's suppression motion the next day while allowing Butler to present additional evidence following the People's production of a DVD containing images of Butler following his arrest, which Butler contended would demonstrate his wrists were so swollen by the handcuffs that Deputy Skaggs's fingers could not have slipped in between the handcuffs and Butler's skin.

During the prosecution's direct examination of Deputy Skaggs at the suppression motion hearing on June 6, 2008, Butler improperly confronted Skaggs, provoking another court admonishment:

“Mr. Butler:  Something funny?

“The court:  Mr. Butler, I want you to look at me.

“Mr. Butler:  He had a smirk on his face.   I don't think this is funny.

[¶] ․ [¶]

“The court:  If you have a problem with the witness, you let me know but I don't want you to mouth off to the witness.   Is that understood?

“Mr. Butler:  Yes. But as long as the witness understands this is not funny and in regards to him looking at me.

[¶] ․ [¶]

“The court:  -You are on the verge of losing your pro. per. status so I suggest you stop looking at the witness and addressing the witness.”

During the People's argument the court again warned Butler about his behavior, “You can have your opinions but when you start laughing out loud during arguments, it is disruptive.”

Based on the evidence presented at that point in the proceedings-the DVD had still not yet been produced to Butler-the court denied the suppression motion.   Butler argued with the court as to why the ruling was incorrect and insisted he was entitled to certain factual determinations for purposes of appellate review.

4. Proceedings Before Judge White During Which Butler Was Admonished Because of Disruptive or Inappropriate Conduct

On June 24, 2008 Butler appeared before Judge Thomas R. White for assignment of his case to a courtroom for trial and filed a challenge to Judge Chung pursuant to Code of Civil Procedure section 170.6.   At the outset of the proceedings Butler was warned, “Mr. Butler, don't interrupt, please.   This is going to be a rough enough day for all of us.”   Soon thereafter the court again warned Butler, “You are also interrupting me.   I don't know if you are aware of this, Mr. Butler, but interrupting the court and obstructing proceedings is a basis for revoking pro. per. status.   You are getting close.”   Butler responded, “I do know [California Code of Judicial Ethics, canon] 3-B-7 requires you to give me an opportunity to be fully and fairly heard.   I do know that up to now that you have not done that.”

The case was assigned to Judge Hayden Zacky for trial.

5. Proceedings Before Judge Zacky

Butler appeared before Judge Zacky without significant incident on a number of occasions to argue pretrial motions following the June 24, 2008 assignment.   However, on August 29, 2008 Butler became disruptive when the court would only permit one of his hands to be uncuffed.   The court had received a report of a disturbance on the bus from county jail.   While the court was explaining it would need to get more information about what had happened, Butler interrupted, stating, “I think what we need to do is bring the officer in here and put him on the stand.”   The court told Butler, “We've gotten along real well.   All right?   So let's respect each other and not talk over each other.”  “Don't talk over me, please.   Okay? Take a deep breath and I will too.”  “Don't talk over me.   I'll warn you again.   I don't want to have to revoke your pro. per. status.”   And a few moments later, “Don't talk over me, please.”

Later in the hearing Butler accused the court of “backpedaling” on an issue, also stating, “So, in other words, when the court makes a ruling, then the court's word is no good is what you are saying.”   Butler indicated he did not think he could get a fair hearing before Judge Zacky, and Judge Zacky stated Butler could be brought back to file a disqualification motion if he chose to do so.

At the next hearing on September 8, 2008, the court warned, “Now here's what we need to do first, Mr. Butler.   Hopefully today will go a lot smoother than last time.   So let's not talk over each other, because, you know, when you do that, it can be grounds to revoke pro. per. status.   So, please, be careful.”   The court ruled, among other things, Butler would have to return to Judge Chung to have the suppression motion resolved (the DVD had finally been produced) inasmuch as Judge Chung had already heard testimony.   Butler protested that Judge Chung could no longer hear any matters in the case in light of his successful Code of Civil Procedure section 170.6 challenge to Judge Chung.

6. The Continuation of the Hearing on Butler's Motion To Suppress Before Judge Chung During Which Butler Was Removed from Court for Disruptive Conduct

At the September 10, 2008 hearing before Judge Chung, the court invited Butler to argue the merits of the suppression motion in light of his receipt of the DVD. Butler, however, began questioning the court concerning the effective date of the Code of Civil Procedure section 170.6 disqualification.   After giving Butler another chance to argue the suppression motion, not the court's authority to hear it, Butler attempted to withdraw the motion, leading to an exchange that ultimately resulted in Butler's removal from court:

“Mr. Butler:  At this point I will withdraw the motion so-

“The court:  At this point he has-

“Mr. Butler:  You have-

“The court:  I will ask you to stop talking.   At this point he is submitting as far as any further arguments.

“Mr. Butler:  I'm not submitting.   I'm withdrawing the motion.

“The court:  I will ask you one more time to stop cutting me off.

“Mr. Butler:  You have to stop making a false record.

“The court:  Let's go ahead and remove him.”

7. The Revocation of Butler's Right To Represent Himself by Judge Zacky

On September 12, 2008 Butler appeared again before Judge Zacky.   At the outset of the hearing, Judge Zacky indicated he had spent the morning reading the minute orders from the felony file and made findings that Butler had been removed from Judge Chung's court and had been warned numerous times by Judge Chung, Judge White, as well as by him, not to interrupt the court.   Judge Zacky also reported he had obtained additional information about the August 29, 2008 disturbance that had prompted the court to keep one of Butler's hands cuffed to the chair.   The court explained, “Deputy Tipton informed the court that you were in your cell or in your dorm, wherever you were being housed, and that they were calling your name to get in the court line and that you did not answer up.   As a result, the deputies were forced to get a photograph of you to compare to other people in the dorm․  And then finally, you were identified, brought in the court line.   And according to Deputy Tipton, you continued to be verbally abusive to staff and were brought to court.”

Calling Deputy Tipton's version of the event “a lie,” Butler argued he was entitled to present evidence regarding the incident and explained he had been asleep when they called him because, during the preceding week, he had only been able to get a few hours of sleep each night-he had been on the last bus from the courthouse back to the jail, arriving at his cell around 1:00 a.m., only to be awakened by 2:30 a.m. to get on the bus back to court.   Butler also proffered an explanation as to why he was removed from Judge Chung's courtroom and accused Judge Chung of lying about watching the DVD. Butler also accused Judge Zacky of judicial misconduct for ordering that Judge Chung finish hearing the suppression motion.

After extensive argument during which Judge Zacky yet again warned Butler not to interrupt the court, Judge Zacky revoked Butler's right to self-representation:  “Now, in this case, Mr. Butler, although in my courtroom, for the most part, you have conducted yourself as a gentleman, you have spoken over me on numerous occasions.   And I have warned you.   Including today.   I have put on the record one, two, three-five separate instances in court where you were warned by a judge not to talk over them or your pro. per. status would be revoked.   That's the primary thrust.   That's the primary reason why your pro. per. status is being revoked today.   In addition, whatever happened at the jail, while not of a strong evidentiary concern to the court, is a factor that I am considering.   But even if that wasn't there, I think there is enough to revoke your pro. per. status.   So that's the order of the court.”   Even after revoking Butler's pro. per. status, Butler continued to argue with and interrupt the court, stating at one point, “This is like a kangaroo court and you know it.”

8. Butler's Plea ;  the Sentence

After Butler's motion to reconsider revocation of his pro. per. status was denied,⁶ he withdrew his not guilty plea to resisting an executive officer (count one), pleaded no contest and admitted the prior prison term allegation;  the charge of battery with injury on a police officer (count two) and the special allegation that Butler had suffered a prior strike conviction within the meaning of the “Three Strikes” law were dismissed pursuant to the negotiated plea agreement.   The court imposed and stayed execution of a four-year state prison sentence (the upper term of three years for the underlying offense plus one year for the prior prison term enhancement), and Butler was placed on five years formal probation.

DISCUSSION

1. General Legal Principles

A criminal defendant has a right to represent himself or herself at trial under the Sixth and Fourteenth Amendments to the United States Constitution.   (Faretta, supra, 422 U.S. at pp. 835-836;  People v. Marshall (1997) 15 Cal.4th 1, 20.)  “A trial court must grant a defendant's request for self-representation if three conditions are met,” including “the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation.”  (People v. Welch (1999) 20 Cal.4th 701, 729 (Welch ).)   However, “ ‘[t]he right of self-representation is not a license to abuse the dignity of the courtroom.   Neither is it a license not to comply with relevant rules of procedural and substantive law.’ ”  (Id. at p. 734.)  “The high court reiterated this point in McKaskle [v. Wiggins (1984) ] 465 U.S. 168, [173] [104 S.Ct. 944, 79 L.Ed.2d 122], noting ‘an accused has a Sixth Amendment right to conduct his own defense, provided only that ․ he is able and willing to abide by rules of procedure and courtroom protocol.’ ”  (Welch, at p. 734.)  “This rule is obviously critical to the viable functioning of the courtroom.   A constantly disruptive defendant who represents himself, and who therefore cannot be removed from the trial proceedings as a sanction against disruption, would have the capacity to bring his trial to a standstill.”  (Ibid.)

“Although the trial is the central event in a criminal prosecution ․ opportunities to abuse the right of self-representation and engage in obstructionist conduct are not restricted to the courtroom.”  (People v. Carson (2005) 35 Cal.4th 1, 9 (Carson ).)   For example, witness intimidation, “[o]ne form of serious and obstructionist misconduct” (ibid.), can be accomplished from inside prison.  “Regardless of where it occurs, a court may order termination for misconduct that seriously threatens the core integrity of the trial.”  (Id. at p. 6;  see id. at p. 9[“[u]ltimately, the effect, not the location, of the misconduct and its impact on the core integrity of the trial will determine whether termination is warranted”].)   Thus, the trial court must decide whether the defendant “is and will remain so disruptive, obstreperous, disobedient, disrespectful or obstructionist in his or her actions or words as to preclude the exercise of the right to self-representation.”  (Welch, supra, 20 Cal.4th at p. 735.)   Factors the court should consider in making this determination include the nature of the misconduct and its impact on the trial proceedings, “whether the defendant has been warned that particular misconduct will result in termination of in propria persona status,” whether the defendant “has ‘intentionally sought to disrupt and delay his trial’ ” and whether alternative sanctions are available especially when the misconduct takes place outside of courtroom proceedings.   (Carson, supra, 35 Cal.4th at p. 10.)  “The trial court possesses much discretion when it comes to terminating a defendant's right to self-representation and the exercise of that discretion ‘will not be disturbed in the absence of a strong showing of clear abuse.’ ”  (Welch, at p. 735;  see Carson, at p. 12 [reviewing court “accord[s] due deference to the trial court's assessment of the defendant's motives and sincerity as well as the nature and context of his misconduct and its impact on the integrity of the trial in determining whether termination of Faretta rights is necessary to maintain the fairness of the proceedings”].)

2. The Trial Court Did Not Abuse Its Discretion in Revoking Butler's Right to Self-representation

Butler contends the trial court abused its discretion because, as Judge Zacky acknowledged, Butler had mostly acted as a “gentleman” before him and, at the time Judge Zacky revoked his pro. per. status, Butler had done nothing disruptive or obstreperous.⁷  Butler argues the court wrongly relied on hearsay from Deputy Tipton regarding Butler's out-of-court behavior, if not to revoke his status, then as a triggering mechanism to, as Judge Zacky explained, “look a little bit closer at the file.”   Butler's argument is untenable in light of Carson, supra, 35 Cal.4th 1, which recognizes the court's authority to consider if Butler's right to self-representation should be revoked regardless whether Butler had acted inappropriately at the time the court undertook the inquiry.   Even if Deputy Tipton's report was the only impetus for Judge Zacky to review the felony file-and not perhaps Judge Zacky's own review of the minute order from the September 10, 2008 hearing before Judge Chung to ascertain the disposition of the suppression motion, which documented Butler's removal from the hearing-that was sufficient.   The court was not required to take testimony from Deputy Tipton, as Butler demanded, especially since it ultimately revoked Butler's pro. per. status based on his disruptive conduct in the courtroom.  (See Carson, supra, 35 Cal.4th at p. 11 [trial court vested with discretion to determine how best to make an appropriate record of defendant's obstructive behavior].)

Butler also argues the court erred in relying on minute orders documenting past admonitions because they did not accurately reflect, or gave a distorted view of, what had occurred.   Butler asserts a review of transcripts from the proceedings “indicates that while [Butler's] courtroom decorum may have required refining, in many instances his concerns were quite justified and almost all revolved around [Butler's] interaction with Judge Chung, and later, his adamancy that Judge Chung should not have heard the remainder of his section 1538.5 motion․”  Butler attempts to minimize the behavior for which he was cautioned, contending the interruptions were “minor” and occurred during “hotly disputed issue[s]”;  he “may have been eccentric and at times lacking in courtroom etiquette”;  and “any litigant, pro. per. or professional, would be upset if not downright stunned” at certain court conduct “leaving the litigant only the option of argument and making a record.”

We have reviewed the transcripts, which leave no doubt the trial court acted well within its discretion in revoking Butler's right to self-representation.   Whether or not Butler's legal positions had any merit, the manner in which he acted before three different judges, not just Judge Chung-interrupting the court, accusing the trial judge of lying, persisting in arguing under the guise of creating a record for appellate review after the court had clearly articulated its ruling, making flippant and disrespectful remarks-was abusive and obstructionist behavior, not simply a lapse in courtroom etiquette.   No attorney would be permitted to act in such a fashion.  (See People v. Harris (1977) 65 Cal.App.3d 978, 985-987 [defendant knowingly and intelligently waived right to counsel after he was “warned of pitfalls of self-representation and that he would be bound by the same rules that attorneys are bound by during the conduct of the proceedings”];  People v. Elliott (1977) 70 Cal.App.3d 984, 990 [defendant knowingly and intelligently waived right to counsel;  court had warned defendant he “would be required to follow the ground rules of trial procedure and make the appropriate motions and utilize the procedural rules that an attorney would make and utilize”].)   As he told Judge Chung, Butler knew how to behave in the courtroom.   Indeed, during many of the hearings before Judge Zacky Butler conducted himself respectfully and capably, seeking time to file writs when he believed the court had erred.⁸  Butler's general observance of minimal norms of courtroom protocol before Judge Zacky, however, highlights the instances in which he acted inappropriately, apparently provoked to engage in disruptive behavior by judicial decisions he believed were biased or simply incorrect.   In fact, Judge Zacky appears to have been exceptionally patient with Butler, ignoring instances of clearly disrespectful comments and disruptive conduct, including accusing the court of “backpedaling” and suggesting “the court's word is no good is what you are saying.”   That Judge Zacky may have been initially patient with Butler did not circumscribe his authority to subsequently find Butler unable or unwilling to abide by rules of procedure and courtroom protocol, warranting revocation of his right to self-representation.

DISPOSITION

The judgment is affirmed.

We concur:

FOOTNOTES

FN1. Because Butler pleaded guilty, our recitation of the facts is taken from the evidence presented at the preliminary hearing..  FN1. Because Butler pleaded guilty, our recitation of the facts is taken from the evidence presented at the preliminary hearing.

FN2. Deputy Skaggs acknowledged on cross-examination that he told Butler the stop was for littering..  FN2. Deputy Skaggs acknowledged on cross-examination that he told Butler the stop was for littering.

FN3. Statutory references are to the Penal Code unless otherwise indicated..  FN3. Statutory references are to the Penal Code unless otherwise indicated.

FN4. Butler moved to suppress Deputy Skaggs and Deputy Roth's “observations” of his conduct following their purportedly illegal detention of him..  FN4. Butler moved to suppress Deputy Skaggs and Deputy Roth's “observations” of his conduct following their purportedly illegal detention of him.

FN5. At the first hearing before him, Judge Chung had disclosed to Butler that, prior to becoming a judge, he had been a deputy district attorney in Lancaster and had handled, in a limited fashion, some of Butler's previous cases.  (Butler apparently smiled during the disclosure, prompting Judge Chung to comment, “I think you remember me.”)   Judge Chung also disclosed he has two brothers who are deputy district attorneys.   During the June 4, 2008 hearing, in response to Butler's question whether Judge Chung could be fair and impartial, Judge Chung repeated these disclosures..  FN5. At the first hearing before him, Judge Chung had disclosed to Butler that, prior to becoming a judge, he had been a deputy district attorney in Lancaster and had handled, in a limited fashion, some of Butler's previous cases.  (Butler apparently smiled during the disclosure, prompting Judge Chung to comment, “I think you remember me.”)   Judge Chung also disclosed he has two brothers who are deputy district attorneys.   During the June 4, 2008 hearing, in response to Butler's question whether Judge Chung could be fair and impartial, Judge Chung repeated these disclosures.

FN6. At the hearing on Butler's motion for reconsideration, the court reiterated it had revoked Butler's right to self-representation based on his disruptive conduct in the courtroom, not Deputy Tipton's report:  “[W]hen defendant's pro per status was revoked, the court stated a number of factors that went into the court's decision to revoke Mr. Butler's pro. per. status.   And that included disruptions that occurred on several court dates, and they are all in the record.   That was the basis for revoking the pro per status.   It wasn't solely relating to the behavior at the jail as relayed by Deputy Tipton.   In fact, that did not enter into the court's decision at all.   It just, in essence, made the court look a little bit closer at the file.   And that's what happened and that's why the pro per status was revoked.”.  FN6. At the hearing on Butler's motion for reconsideration, the court reiterated it had revoked Butler's right to self-representation based on his disruptive conduct in the courtroom, not Deputy Tipton's report:  “[W]hen defendant's pro per status was revoked, the court stated a number of factors that went into the court's decision to revoke Mr. Butler's pro. per. status.   And that included disruptions that occurred on several court dates, and they are all in the record.   That was the basis for revoking the pro per status.   It wasn't solely relating to the behavior at the jail as relayed by Deputy Tipton.   In fact, that did not enter into the court's decision at all.   It just, in essence, made the court look a little bit closer at the file.   And that's what happened and that's why the pro per status was revoked.”

FN7. A defendant who pleads guilty or no contest has statutorily restricted appellate rights.  (People v. Robinson (1997) 56 Cal.App.4th 363, 368.)   Although, for example, “ ‘a plea of guilty waives any right to raise questions regarding the evidence, including its sufficiency or admissibility,’ ” a defendant who obtains a certificate of probable cause, as Butler has, is entitled to assert on appeal a claimed Faretta violation.  (Robinson, at pp. 369, 370.)  “Compliance with Faretta is an issue unrelated to defendant's guilt, and constitutes grounds going to the legality of the proceedings.”  (Robinson, at p. 370;  accord, People v. Marlow (2004) 34 Cal.4th 131, 146-147[“[j]ust as a claim of denial of the right to counsel is cognizable on appeal after a guilty plea [citation], so too is a claim of Faretta error”].)   The People do not contest that revocation of Butler's right to self-representation is cognizable on appeal following his plea of no contest..  FN7. A defendant who pleads guilty or no contest has statutorily restricted appellate rights.  (People v. Robinson (1997) 56 Cal.App.4th 363, 368.)   Although, for example, “ ‘a plea of guilty waives any right to raise questions regarding the evidence, including its sufficiency or admissibility,’ ” a defendant who obtains a certificate of probable cause, as Butler has, is entitled to assert on appeal a claimed Faretta violation.  (Robinson, at pp. 369, 370.)  “Compliance with Faretta is an issue unrelated to defendant's guilt, and constitutes grounds going to the legality of the proceedings.”  (Robinson, at p. 370;  accord, People v. Marlow (2004) 34 Cal.4th 131, 146-147[“[j]ust as a claim of denial of the right to counsel is cognizable on appeal after a guilty plea [citation], so too is a claim of Faretta error”].)   The People do not contest that revocation of Butler's right to self-representation is cognizable on appeal following his plea of no contest.

FN8. Moreover, although Judge Zacky did not explicitly admonish Butler not to interrupt the court or to move on from points already established at many of the hearings at which he presided, there are indications throughout the record Butler interrupted or persisted in arguing.   For example, during the August 22, 2008 hearing, Judge Zacky said, “Hold on.   No. Don't talk yet.   I know what your position is.   Hear me out.”.  FN8. Moreover, although Judge Zacky did not explicitly admonish Butler not to interrupt the court or to move on from points already established at many of the hearings at which he presided, there are indications throughout the record Butler interrupted or persisted in arguing.   For example, during the August 22, 2008 hearing, Judge Zacky said, “Hold on.   No. Don't talk yet.   I know what your position is.   Hear me out.”

WOODS, J. ZELON, J.