PEOPLE v. WINDHAM (1976)

OPINION

The dragon's teeth sowed by Faretta¹ have begun to sprout.

Defendant was convicted by a jury of assault by means of force likely to produce great bodily injury (Penal Code, § 245). On his appeal, the main issue raised by defendant concerns his right of self-representation.

THE FACTS

Since no attack is made on the sufficiency of the evidence we may dispose of the facts rather summarily. Suffice to say that defendant committed an unprovoked and brutal assault on the victim. The prosecution's case consisted of the testimony of the victim and two disinterested bystanders. The defense consisted of a witness who added little to the picture and of defendant himself who claimed self-defense. During the cross-examination of defendant, he advised the court that he wished to represent himself for the balance of his testimony and for purposes of final argument to the jury. Defendant was represented by the public defender. The trial court, without any inquiry as to whether he knew what he was doing, denied defendant's request. In so doing, the court erred.

FARETTA

This case was tried approximately four months after Faretta v. California, supra, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, and is controlled by Faretta principles. (See People v. McDaniel, 16 Cal.3d 156, 168, 127 Cal.Rptr. 467, 545 P.2d 843.)

Whatever may be said of Faretta, its basic holding cannot be faulted for lack of clarity. There is nothing wishy-washy or indecisive about the majority opinion. As of June 30, 1975, a defendant in a state criminal trial has a constitutional right to self-representation under the Sixth Amendment, assuming the decision to represent himself is an intelligent one. Of course, as the dissent in Faretta pointed out, the Sixth Amendment doesn't say beans about self-representation, but the majority says that the ‘structure’ of the Amendment so indicates and that, to coin a phrase, is that.

In Faretta, the court defined the issue as ‘. . . whether a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so.’ And again as ‘. . . whether a State may constitutionally hail a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense.’ (Faretta v. California, supra, 422 U.S. 806, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562.) The court noted that in California, as in most states, an indigent criminal defendant has no right to appointed counsel of his choice, appointed counsel manages the lawsuit and has the final say in all but a few matters of trial strategy, and reversal of a conviction on the grounds of inadequacy of appointed counsel is granted only in the extreme case where the quality of representation is so poor as to render the trial a farce and a sham. (Id., 95 S.Ct. at p. 2529, fn. 8.) The court based its holding on a review of federal and state cases, a review of the historical antecedents of the Sixth Amendment, and on the terms of the Sixth Amendment.

The only limitation on this right of self-representation is that before the granting of the motion ‘. . . he [the defendant] should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ [Citation.]' (Faretta v. California, supra, 422 U.S. 806, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562.)

In reply to the defendant's contention that the judge's ruling constituted a denial of his right to self-representation, the Attorney General argues (1) that the right to self-representation must be asserted prior to trial or it is waived; (2) that any error committed by denial of the motion was harmless; and (3) that the defendant did not ask for self-representation but for co-counsel status which is not constitutionally protected.

TIMELINESS

Faretta establishes no firm guidelines on the issue of timeliness. The Attorney General quotes the following: ‘The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant—not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the Amendment insists. It is true that when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas. [Citations.] This allocation can only be justified, however, by the defendant's consent, at the outset, to accept counsel as his representative. An unwanted counsel ‘represents' the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense.’ [Emphasis added.] (Faretta v. California, supra, 422 U.S. 806, 95 S.Ct. 2525, 2533–2534, 45 L.Ed.2d 562.)

One could indeed infer from this passage that defendant's consent ‘at the outset’ justifies forcing unwanted counsel upon him later in the trial. However, that is not exactly what the court says, and there is an equally strong implication of the opposite in another portion of the opinion: ‘In other settings as well, the Court has indicated that a defendant has a constitutionally protected right to represent himself in a criminal trial. For example, in Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, the Court held that the Confrontation Clause of the Sixth Amendment gives the accused a right to be present at all stages of the proceedings where fundamental fairness might be thwarted by his absence. This right to ‘presence’ was based upon the premise that the ‘defense may be made easier if the accused is permitted to be present at the examination of jurors or the summing up of counsel, for it will be in his power, if present, to give advice or suggestion or even to supercede his lawyers altogether and conduct the trial himself.’ (Id., at 106, 54 S.Ct. at 332 [emphasis added].)' (Faretta v. California, supra, 422 U.S. 806, 95 S.Ct. 2525, 2531, 45 L.Ed.2d 562.

Lacking firm guidelines, we conceive that the following is a workable solution to the problem. While the request of a defendant to represent himself must be honored if he knows what he is doing, this right may not be used as a tool for dilatory purposes nor may it be used in such a way as to subvert the orderly administration of justice and jeopardize a fair trial of the issues. (People v. Douglas, 61 Cal.2d 430, 435, 38 Cal.Rptr. 884, 392 P.2d 964; People v. Powers, 256 Cal.App.2d 904, 914–915, 64 Cal.Rptr. 450.)

However, we cannot agree with the Attorney General that the choice to represent oneself must necessarily be made before trial. If during trial a defendant demands his right of self-representation and if the granting of that demand will not delay the trial or in some other manner subvert the orderly administration of justice, the court must allow the defendant to represent himself. Faretta rather effectively cut the heart out of older cases holding that if the right is asserted for the first time after trial is commenced, it is within the court's discretion to deny the motion. (See People v. Weston, 9 Cal.App.3d 330, 336, 87 Cal.Rptr. 922; People v. Von Latta, 258 Cal.App.2d 329, 337, 65 Cal.Rptr. 651.) Of course, the right of self-representation does not carry with it the right to an automatic continuance. (People v. Weston, supra, 9 Cal.App.3d at p. 336, 87 Cal.Rptr. 922; People v. Hagen, 6 Cal.App.3d 35, 49, 85 Cal.Rptr. 556; People v. Johnson, 241 Cal.App.2d 423, 437, fn. 3, 50 Cal.Rptr. 598.) A defendant who begins to use delaying tactics, or is otherwise offensive, may forfeit his right of self-representation. (Faretta v. California, supra, 422 U.S. 806, 95 S.Ct. 2525, 2541, fn. 46, 45 L.Ed.2d 562; People v. Powers, supra, 256 Cal.App.2d 904, 914–915, 64 Cal.Rptr. 450.) Additionally, a defendant may not switch in and out of the case at his pleasure merely upon a showing that he is intelligently asserting or giving up his right to counsel. Once a defendant ‘with eyes open’ has decided to assume the responsibility for the management of his defense, all subsequent motions for representation by counsel or for reinstatement of representation will be addressed to the trial court's discretion. (See People v. Powers, supra, at pp. 913–915, 64 Cal.Rptr. 450.) Any other rule would result in courtroom chaos. Once a defendant has made a decision to represent himself, he lives with that decision until the court in its sound discretion decides to the contrary.

In the instant case, there was no indication that defendant wished a continuance or that his self-representation would in any way disrupt the trial. He simply wanted to take over. His counsel agreed. The court, without inquiring whether defendant's choice was a knowing one, simply denied the motion. In so doing, the court erred.

REVERSIBLE ERROR PER SE

We frankly concede that given the facts of this case and given the opportunity to so decide, we would hold that the error in this case is harmless beyond a reasonable doubt. (Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.) The evidence is overwhelming and defendant had excellent representation. However, we are denied this luxury since the error is reversible per se.

Although certain older cases treated violation of the right of self-representation as subject to the harmless error doctrine, newer and more persuasive cases treat such error as reversible per se. (United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113, 1127–1129; People v. Ruiz, 263 Cal.App.2d 216, 226–228, 69 Cal.Rptr. 473.) Under Faretta, self-representation is now implicit in the Sixth Amendment's right to counsel. Since violation of the right to counsel at trial is error reversible per se (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799), the same result should follow for self-representation. Furthermore, the court in Faretta stated that the right was not related to the truth-determining process. (Faretta v. California, supra, 422 U.S. 806, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562; see People v. McDaniel, supra, 16 Cal.3d 156, 166, 127 Cal.Rptr. 467, 545 P.2d 843.) Accordingly, use of the harmless error doctrine would make the right of self-representation virtually unenforceable. (See People v. Ruiz, supra, 263 Cal.App.2d 216, 277, 69 Cal.Rptr. 473.) Thus, the judgment must be reversed.

CO-COUNSEL

We next turn to the distinction urged by the Attorney General between the right of self-representation and the right to act as co-counsel. In this respect the record leaves much to be desired.

The cross-examination of the defendant was interrupted by an evening adjournment. Then the next morning during a conference in chambers the public defender said the defendant wanted to be appointed as his own counsel for the balance of the case with the public defender acting as assisting attorney. A lengthy colloquy followed in which the expressions ‘self-representation’ and ‘co-counsel’ were used rather loosely.

It is difficult to ascertain whether any of the parties had the distinction between co-counsel and self-representation clearly in mind. Defense counsel was the only participant who was completely consistent, referring throughout to self-representation. The trial judge sometimes referred to co-counsel status although his last ruling was addressed to ‘the request of defendant to act as his own attorney.’ Defendant spoke of acting as co-counsel but after hearing the motion for self-representation presented by his attorney, he said, ‘Yes, that's right.’ The matter is further complicated by the public defender's offer to stay on as assisting attorney, which defendant may have confused with co-counsel status.

On the whole it seems the more reasonable interpretation that defendant desired self-representation. With the record in this state, we can only conclude that defendant was denied his right of self-representation.

However, we agree with the Attorney General that co-counsel status is not a constitutionally protected right.

We must distinguish between representation by counsel and assistance of counsel or advisory counsel. In the defense of a criminal charge, representation is an agency relationship. Representing counsel speaks for the defendant and has authority to make certain decisions of trial strategy.² Assistance of counsel or advisory counsel, as we use those terms here, means only that the attorney is present in the courtroom at the defendant's side to give legal advice. Assisting counsel or advisory counsel is not defendant's agent, does not speak for defendant, and so ordinarily should not participate actively in the conduct of the trial.

Theoretically, it would be possible for defendant to be represented by counsel and also to act as his owncounsel. Defendant and his counsel would then be ‘jointly and severally’ responsible for the management of the defense. This arrangement, which is what we mean by co-counsel status, could continue, however, only so long as both defendant and his attorney agreed perfectly on all questions of trial strategy and tactics, including who should conduct which portions of the defense. Such total agreement must be rare and difficult to predict in advance. As a practical matter, moreover, this arrangement would be cumbersome and tend to confusion. We do not think that a defendant has a constitutional right to insist on this arrangement, even though his attorney also desires it. The trial judge may deny such a motion in order to have a single defense representative with whom to deal. There is ample authority for this conclusion. (E. g., United States v. Shea (5th Cir. 1975) 508 F.2d 82, 86; United States v. Swinton (D.C.1975) 400 F.Supp. 805, 806; People v. Lopez, 60 Cal.2d 223, 255, 32 Cal.Rptr. 424, 384 P.2d 16; People v. Mattson, 51 Cal.2d 777, 789, 336 P.2d 937; People v. Northcott, 209 Cal. 639, 648–650, 289 P. 634; People v. Aguirre, 181 Cal.App.2d 577, 582, 5 Cal.Rptr. 477; People v. Mims, 160 Cal.App.2d 589, 595, 325 P.2d 234.)

ASSISTING COUNSEL

For the guidance of the court below in the event of retrial, we express our views on the question of whether a defendant who has waived his right to counsel and has demanded and received the right to represent himself is entitled to assisting counsel, or advisory counsel.

The rule in California is firmly entrenched that a defendant has no absolute right to the services of an attorney in a mere advisory capacity. (People v. Hill, 70 Cal.2d 678, 692, 76 Cal.Rptr. 225, 452 P.2d 329; People v. Mattson, supra, 51 Cal.2d 777, 793–795, 336 P.2d 937; People v. Northcott, supra, 209 Cal. 639, 289 P. 634.)

We find nothing in Faretta to the contrary. Thus, the question of whether or not to appoint an advisory attorney is a matter left to the sound discretion of the trial court.

In view of the disposition reached herein, it is unnecessary to consider defendant's other contentions.

Judgment reversed.

FOOTNOTES

1.  Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed. 562.

2.  The power to manage the lawsuit, which is the essence of representation, carries with it a correlative responsibility. Accordingly, on appeal a pro se defendant may not urge errors committed in the conduct of the defense, since he alone bears the responsibility for them. (Faretta v. California, supra, 422 U.S. 806, 95 S.Ct. 2525, 2541, fn. 46, 45 L.Ed.2d 562.)

GARDNER, Presiding Justice.

McDANIEL and FOGG*, JJ., concur.