People v. Marshall

KENNARD, J., Concurring and Dissenting.

I concur in the judgment insofar as it reverses the conviction and sentence for the robbery of Sharon Rawls and sets aside the special circumstance findings and the sentence of death. I dissent from the judgment, however, insofar as it affirms the other convictions and sentences. I would reverse the trial court’s judgment in its entirety because defendant was denied his constitutional right of self-representation.

The majority holds that the trial court acted properly in not allowing defendant to represent himself because defendant’s request was equivocal *45and was made for the improper purpose of delaying the trial proceedings. (Maj. opn., ante, at p. 26.) The record belies that. Defendant’s request was unequivocal, as the trial court clearly understood; furthermore, there is no evidence that it was made to delay the proceedings. In forcing defendant, under these circumstances, to continue with an appointed attorney against his will, the trial court denied defendant his constitutional right to conduct his own defense.

A. Constitutional Right to Self-representation

Under the Sixth and Fourteenth Amendments of the federal Constitution, the accused in a criminal proceeding has a right to the assistance of counsel and the correlative right to proceed without counsel. (Faretta v. California (1975) 422 U.S. 806, 807 [45 L.Ed.2d 562, 95 S.Ct. 2525, 2527].) As the United States Supreme Court explained in Faretta: “The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be ‘informed of the nature and cause of the accusation,’ who must be ‘confronted with the witnesses against him,’ and who must be accorded ‘compulsory process for obtaining witnesses in his favor.’ Although not stated in the Amendment in so many words, the right to self-representation—to make one’s own defense personally—is thus necessarily implied by the structure of the [Sixth] Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.” (Id. at pp. 819-820 [95 S.Ct. at p. 2533], fn. omitted.)

The constitutional right to conduct one’s own defense has two characteristics that are often overlooked or misunderstood. First, it is an independent constitutional right “found in the structure and history of the constitutional text.” (Faretta v. California, supra, 422 U.S. at pp. 819-820 & fn. 15 [95 S.Ct. at p. 2533].) As the Faretta court stated, the right of self-representation is equal, not inferior, to the right to counsel. (Id. at p. 832 [95 S.Ct. at p. 2539].)1

Second, the choice of self-representation is personal to the defendant.' “The defendant, and not his lawyer or the State, will bear the personal *46consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage.” (Faretta v. California, supra, 422 U.S. at p. 834 [95 S.Ct. at p. 2541].) Indeed, the high court has said that the right to self-representation “exists to affirm the accused’s individual dignity and autonomy.” (McKaskle v. Wiggins (1984) 465 U.S. 168, 178 [104 S.Ct. 944, 951, 79 L.Ed.2d 122].) Therefore, so long as the defendant is mentally competent, it is irrelevant whether others consider the defendant’s decision unwise. (Godinez v. Moran (1993) 509 U.S. 389, 399 [113 S.Ct. 2680, 2686, 125 L.Ed.2d 321]; Faretta v. California, supra, at p. 836 [95 S.Ct. at pp. 2541-2542].) Just as important, it matters not what the defendant’s motivation is unless it is a desire to disrupt the trial proceedings. (See Adams v. Carroll (9th Cir. 1989) 875 F.2d 1441, 1444-1445; Ferrel v. Superior Court (1978) 20 Cal.3d 888, 891-892 [144 Cal.Rptr. 610, 576 P.2d 93].) Thus, a defendant’s invocation of the right to self-representation is valid even if asserted in response to a trial court’s ruling the defendant did not like. (Adams v. Carroll, supra, at p. 1445 [defendant’s assertion of right to self-representation conditioned on, and in reaction to, court order does not make assertion equivocal].)

A trial court must honor a request for self-representation when the defendant unequivocally asserts it within a reasonable time before trial and does not do so to delay or disrupt the proceedings. (See, e.g., People v. Windham (1977) 19 Cal.3d 121, 128 [137 Cal.Rptr. 8, 560 P.2d 1187]; U.S. v. George (9th Cir. 1995) 56 F.3d 1078, 1084; Adams v. Carroll, supra, 875 F.2d at p. 1444; U.S. v. Flewitt (9th Cir. 1989) 874 F.2d 669, 674.)

Here, defendant unequivocally asserted his right to defend himself, and there is no evidence that he did so to delay or disrupt the proceedings, as discussed below.2

B. Unequivocal Assertion of Right to Self-representation

On February 10, 1988, after proceedings before other trial judges, this case was assigned to Judge Richard Kalustian. Six days later, Judge Kalustian found defendant competent to stand trial.

*47On February 23, 1988, defendant appeared with counsel before Judge Kalustian. After the court set a trial date of April 5, 1988, defense counsel made an ex parte motion that defendant be ordered to provide samples of his blood, saliva, hair, and fingernails to assist counsel in preparing the defense case. Defense counsel informed the court that the motion was against the wishes of defendant, who perceived the motion as “not helping him” and therefore wanted “to go pro per at this point.” The following exchange between defendant and the court then occurred.

“[Defendant] Could I say something your honor? [¶] [The court] No. Let me do the talking. [¶] To start with, your request for an order ordering Mr. Marshall to submit to withdrawal of blood and saliva sample, a fingernail sample and hair sample, the court orders him to do that. You are ordered to give those samples, Mr. Marshall. [¶] [Defendant] Could I say something, your honor? [¶] [The court] Not on that subject. [¶][Defendant] I would like to fire this attorney and go pro per because this is not—my right is being violated in this courtroom department P right now.” (Italics added.)

After defendant made a rambling statement, the court stated: “Now is the time, Mr. Marshall, to let me know.” Defendant replied: “Now you asking me right now to explain to you the circumstances behind all this?” The court responded: “No, I am asking you to tell me why you want me to fire your lawyer and allow you to go in pro per.” (Italics added.) Defendant then said: “If you give me another lawyer, it still won’t do me no good on this capital case because I believe I am being used by this court in order to keep this court open for future. [¶] But let me say this, then I will be finished. I will take the pro per status.” (Italics added.)

Following some additional remarks by defendant that wandered somewhat from the subject of self-representation, the trial court ruled: “Thank you, Mr. Marshall. [¶] Request to relieve [defense counsel] is denied. And your request to proceed in pro per is denied.” (Italics added.) The ruling was reflected in the court’s written minute order stating, “Defendant’s motion to relieve counsel and proceed in propria persona are denied.” (Italics added.)

From this colloquy, the majority concludes erroneously that defendant was equivocal in his request to proceed without counsel, and that therefore the trial court did not have to honor it.

As set forth above, at the February 23, 1988, hearing, not only did defendant’s counsel advise the court of defendant’s desire “to go pro per," but defendant himself repeatedly said so. The trial court knew that defendant was asserting his constitutional right to self-representation, for the court *48twice at the hearing and later in its formal minute order specifically described defendant’s request as one to “proceed in propria persona.”

To support its conclusion that defendant’s request was equivocal, the majority points to certain rambling statements by defendant at the hearing concerning topics other than self-representation. Those statements did not, however, in any way call into question defendant’s unequivocal request for self-representation, as the trial court recognized when it repeatedly described the request as one to “proceed in pro per.”

According to the majority, defendant was not “sincere” in asserting his constitutional right to proceed without counsel. (Maj. opn., ante, at pp. 26-27.) There is no constitutional requirement, however, that a defendant whose invocation of the right of self-representation is otherwise unequivocal must add the statement, “I really, really mean it,” or demonstrate sincerity in some other fashion not identified by the majority.

C. Delay and Disruption of Proceedings

The majority asserts that defendant invoked his constitutional right to self-representation to delay and disrupt the proceedings. (Maj. opn., ante, at p. 26.) The majority is wrong.

The record shows that defendant asked to conduct his own defense because his attorney, contrary to defendant’s strong opposition, sought a court order to compel defendant to submit to the withdrawal of blood and to provide saliva, fingernail, and hair samples. The wisdom of defendant’s action is not at issue here. As I noted earlier, because a defendant wishing self-representation will bear the personal consequences of a conviction, the defendant “must be free personally to decide whether in his particular case counsel is to his advantage.” (Faretta v. California, supra, 422 U.S. at p. 834 [95 S.Ct. at p. 2541]; see also Thor v. Superior Court (1993) 5 Cal.4th 725, 736 [21 Cal.Rptr.2d 357, 855 P.2d 375] [right to refuse unwanted medical treatment not conditioned on assent of physician or others].)

Nothing in the record indicates that defendant was seeking to delay or disrupt the proceedings when he asked to represent himself. From his arrest on April 13, 1986, until December 19, 1986, defendant was represented by counsel. Defendant conducted his own defense from December 19, 1986, until May 13, 1987, when he was again represented by counsel. The trial court granted three continuances while defendant was acting as his own attorney: one that the court invited defendant to request, when it granted defendant’s motion for self-representation; one it had previously told defendant it would grant when an investigator was assigned to assist defendant; and *49one defendant requested to seek appellate review of an adverse trial court ruling. On February 23, 1988, when defendant made the request for self-representation at issue here, he did not ask for a continuance. Of the 13 continuances cited by the majority (maj. opn., ante, at pp. 15-17,), 10 were secured by counsel.

In its attempt to show that defendant’s February 23, 1988, request to proceed without counsel was made to delay or disrupt the proceedings, the majority notes that between December 19, 1986, and May 13, 1987, when defendant was representing himself, he requested advisory or second counsel. Defendant had a right to make such requests. (Keenan v. Superior Court (1982) 31 Cal.3d 424, 430 [180 Cal.Rptr. 489, 640 P.2d 108]; see also Faretta v. California, supra, 422 U.S. at p. 834, fn. 46 [95 S.Ct. at p. 2541] [standby counsel may be appointed by the court even over the objection of the defendant].) The requests did not cause any delay. Nor were they evidence of “vacillating.” (See maj. opn., ante, at pp. 22, 27.) A “vacillating” defendant is one who alternates between requests for counsel and requests for self-representation in an attempt to manipulate or abuse the trial process. (Williams v. Bartlett (2d Cir. 1994) 44 F.3d 95, 101.) To my knowledge, the term has not previously been used to describe a defendant’s request for associate or second counsel. Here, defendant represented himself for five months and then had counsel. It was not until 10 months later that defendant again invoked his right to self-representation. This is not vacillation. (Adams v. Carroll, supra, 875 F.2d at p. 1443 [California criminal conviction vacated for violation of right to personal defense when defendant “first requested counsel, then asked to represent himself when he became dissatisfied with [counsel], then requested counsel again and finally asked to represent himself again when [counsel] was reappointed . . . .”].)

And, contrary to the majority’s assertion, the fact that defendant heeded the warnings and advice of the trial judge at his first court appearance by not pursuing a request for self-representation is not evidence of vacillation, delay, or abuse. “The fact that [defendant] tried a lawyer at the urging of the court reflects both sound advice on the court’s part and wise deference to that advice on the part of defendant; it does not signify waiver or suggest tactical abuse of the system.” (Williams v. Bartlett, supra, 44 F.3d at p. 101.)

Conclusion

Trial judges generally do not look forward to trying a criminal case in which the defendant is conducting his or her own defense. Understandably so. A defendant who is unskilled in the law and courtroom procedures can place a great burden on the trial process, sorely testing the patience of the trial court.

*50But the right to conduct one’s own defense, no matter how unwise for the defendant or burdensome on the trial process, is a personal liberty that is rooted in the dignity of the individual, which is “ ‘the lifeblood of the law.’ ” (Faretta v. California, supra, 422 U.S. at p. 834 [95 S.Ct. at p. 2541], quoting Illinois v. Allen (1970) 397 U.S. 337, 350-351 [90 S.Ct. 1057, 1064, 25 L.Ed.2d 353] (conc. opn. of Brennan, J.).) The high court found support for this conclusion in “centuries of consistent history,” as reflected “in the structure of the Sixth Amendment, as well as in the English and colonial jurisprudence from which the Amendment emerged.” (Faretta v. California, supra, 422 U.S. at pp. 832, 818 [95 S.Ct. at pp. 2540, 2532].) The court went on to observe: “The value of state-appointed counsel was not unappreciated by the Founders, yet the notion of compulsory counsel was utterly foreign to them. And whatever else may be said of those who wrote the Bill of Rights, surely there can be no doubt that they understood the inestimable worth of free choice.” (Id. at pp. 833-834 [95 S.Ct. at p. 2540], fns. omitted.)

The denial of the right of self-representation is federal constitutional error not amenable to “harmless error” analysis. (McKaskle v. Wiggins, supra, 465 U.S. at p. 177, fn. 8 [104 S.Ct. at p. 950]; People v. Joseph (1983) 34 Cal.3d 936, 948 [196 Cal.Rptr. 339, 671 P.2d 843].) Because I conclude, for reasons given above, that the trial court in this case should have granted defendant’s unequivocal request to act as his own lawyer, I would reverse the judgment in its entirety.

Mosk, J., and Werdegar, J., concurred.

Appellant’s petition for a rehearing was denied April 30, 1997. Mosk, J., Kennard, J., and Werdegar, J., were of the opinion that the petition should be granted.

The right of self-representation has been a federal statutory right since the founding of our nation. (Faretta v. California, supra, 422 U.S. at p. 812 [95 S.Ct. at p. 2530].) Moreover, long before its decision in Faretta v. California, the high court had foreshadowed its recognition of the right of self-representation as a basic constitutional right. (Adams v. U.S. ex rel. McCann (1942) 317 U.S. 269, 279 [63 S.Ct. 236, 241-242, 87 L.Ed. 268, 143 A.L.R. 435] [referring to the right to assistance of counsel and the correlative right to dispense with a lawyer’s help]; Snyder v. Massachusetts (1934) 291 U.S. 97, 106 [54 S.Ct. 330, 332, 78 L.Ed. 674, 90 A.L.R. 575] [noting a criminal defendant’s power “to supersede his lawyers altogether and conduct *46the trial himself’].) The Faretta court specifically noted that the constitutions of 36 states explicitly confer that right. (422 U.S. at p. 813 [95 S.Ct. at p. 2530].)

In the history of British criminal jurisprudence, only one tribunal had a practice of forcing counsel upon an unwilling defendant. That tribunal was the notorious Star Chamber, an efficient but arbitrary arm of royal power, which flourished during the late 16th and early 17th centuries and, because of its departure from common law traditions, came to symbolize disregard of basic individual rights. (Faretta v. California, supra, 422 U.S. at p. 821 & fn. 17 [95 S.Ct. at p. 2535].)

Defendant invoked his right of self-representation six weeks before the then scheduled date for trial. The majority does not dispute that the assertion was timely.