People v. Lawrence

KENNARD, J., Dissenting.

While in custody and facing trial on felony drug charges, defendant Ringo Lawrence gave up his constitutional right to counsel and began representing himself. (See Faretta v. California (1975) 422 U.S. 806, 819 [45 L.Ed.2d 562, 95 S.Ct. 2525].) That same day, during jury selection, defendant sought to withdraw his waiver of counsel after he realized he lacked the skills to question prospective jurors. The trial court denied the motion. Four days later, defendant again made this request, and the trial court again denied it, noting that the jury had been sworn and had heard part of the testimony of the first prosecution witness.

Defendant was convicted and sentenced to seven years in state prison. The Court of Appeal reversed defendant’s conviction because in its view the trial court had deprived defendant of his constitutional right to counsel. The majority reverses the Court of Appeal. I disagree and would affirm that court’s judgment.

I

In mid-May 2005, a paid police informant bought two grams of cocaine base at a house in South Central Los Angeles. Two weeks later, on June 1, a second informant made another controlled buy of cocaine base at the same house. An undercover officer watching the June 1 transaction saw the informant talk to defendant and saw defendant enter and then leave the enclosed front porch of the house, but the officer did not see the two men exchange either money or drugs.

After the June 1 transaction, police officers went to the house, where they arrested defendant and a woman, Patricia Broomfield, who was found to have $227 in cash, including a “marked” $20 bill that the police had given to the second informant. Both defendant and Broomfield were charged with felony narcotics offenses.

On Wednesday morning, September 28, 2005, defendant’s attorney, Paul J. Cohen, appeared in the master calendar court on defendant’s behalf. (Defendant had previously been represented by a deputy public defender.) Because Attorney Cohen was about to begin trial in another case, he asked the court for a two-week continuance. He mentioned that defendant, who was in *198custody and not present in court, might want to represent himself. When defendant was brought into court, he confirmed his desire to “take over” his case.

The trial court said it would grant the two-week continuance that Attorney Cohen had requested, and it told defendant that if he was going to represent himself, he too would “be expected to be ready in two weeks.” Defendant protested that he had been in custody on this case for four months and “all you can give me” to prepare the case “is two weeks.”

After warning defendant of the pitfalls of self-representation, the trial court asked defendant to fill out a “waiver of counsel” form. When the prosecutor mentioned that he would be out of town on October 13 and 14, the court replied that it would schedule the trial for October 17.

At that point, Attorney Joseph Walsh, representing codefendant Broomfield, interjected that he did not think defendant “was asking for a continuance” but was “just asking to represent himself.” The trial judge responded that if defendant wanted to go to trial that day, “I will send it out” for trial.

The trial court then looked at the “waiver of counsel” form filled out by defendant, and noted that defendant had not listed the charged crimes. When the court asked defendant whether he knew what the charges were, defendant made no response. The court told defendant that he was charged with the sale of cocaine base (Health & Saf. Code, § 11352, subd. (a)) and with possession for sale of cocaine base (id., § 11351.5), and it asked if defendant understood the charges. When defendant replied that he did, the court said that it would “fill in that section on here indicating the charges,” and that defendant should initial the boxes acknowledging his understanding of the charges.

The following colloquy then took place:

The court: “You have had an opportunity to think about this, is it still your desire to represent yourself?”
Defendant: “Yes, Sir. I have no choice.”
The court: “You have a choice; you can wait for Mr. Cohen.”
Defendant: “I had a lawyer before, they ain’t doing nothing.”
The court: “Is it still your desire to represent yourself?”
Defendant: “Yes, Sir.”
*199The court: “Are you ready for trial?”
Defendant: “Yes, Sir.”

The trial court relieved Attorney Cohen from further representation, and it transferred the matter to department 134 “for trial forthwith.” That afternoon, defendant’s case was called for trial in department 134. With defendant representing himself and Attorney Walsh representing codefendant Broomfield, the court began jury selection. Shortly thereafter, the court excused the jury panel for the day.

Attorney Walsh told the trial court that he had a matter to bring to the court’s attention: He mentioned that once the trial started, defendant, who “was unfamiliar with the proceedings,” kept asking questions of Attorney Walsh about jury selection, and Walsh had been “answering [defendant’s] questions essentially.” Walsh and the trial court then discussed whether the master calendar judge had appointed advisory or standby counsel for defendant. The court noted that the minute order reflected the appointment of standby counsel.

Attorney Walsh then said that, based on “informal conversations” with defendant, “I think he wants to withdraw his pro per status.” Defendant replied: “The only reason is cross-examination. People are saying something and I am not for sure able to, you know.”

The trial court admonished defendant not to be “bothering Mr. Walsh [codefendant Broomfield’s attorney] during the trial.” After observing that defendant had “filled out a pro per waiver form” and that defendant understood “what [he] would be up against” in representing himself, the court announced it was in recess on this case until the next morning. The clerk’s transcript for the day has this notation: “Defendant’s request to have counsel appointed is denied.”

The next day, Thursday, September 29, 2005, jury selection was completed, and the trial court swore in the jury, after which it put the case over for four days, until Monday, October 3. That Monday, as soon as defendant’s case was called for trial, defendant told the trial court: “I talked to my wife and I need a state appointed lawyer or public defender. I am going to have to request a public defender and I am retiring my pro per on the record. On the record.” The trial court put that matter over until “the next break,” and had the prosecution call its first witness.

Just before the noon recess, the trial court took up defendant’s request for counsel. Defendant explained: “I talked to my wife this weekend and she said *200I shouldn’t be doing something. And it doesn’t matter to me, but she figured I might get a public defender or state appointed attorney or someone.” Defendant added that he had not “been to the law library or nothing either.”

The trial court denied the request for counsel, giving these reasons: Defendant had been “warned” of the “disadvantage” of choosing to represent himself; the jury had already been selected; “it would be disruptive” to codefendant Broomfield’s case to now appoint counsel for defendant; and defendant’s former counsel, Attorney Cohen, was likely “still engaged in trial and not available.”

Defendant, representing himself at trial, was found guilty as charged and sentenced to seven years in state prison. Defendant appealed. The Court of Appeal held that the trial court abused its discretion in denying defendant’s request to withdraw his waiver of counsel and to appoint counsel for defendant, and that this error required a reversal of the judgment. This court granted defendant’s petition for review.

II

Under the Sixth and Fourteenth Amendments to the federal Constitution, a defendant in a criminal case has a right to representation by counsel as well as the right of self-representation. (Faretta v. California, supra, 422 U.S. 806, 819.) But once a defendant knowingly and voluntarily waives the constitutionally guaranteed right to counsel, that right is no longer absolute. (Menefield v. Borg (9th Cir. 1989) 881 F.2d 696, 700; People v. Gallego (1990) 52 Cal.3d 115, 163-164 [276 Cal.Rptr. 679, 802 P.2d 169].)

There are many reasons why a defendant may choose to give up the right to counsel in favor of self-representation. In the words of the federal appeals court in Menefield v. Borg, supra, 881 F.2d at page 700: “A criminal defendant may initially assert his right to self-representation for reasons that later prove unsound. [He] may doubt the willingness of an appointed attorney to represent his interests. More often, [he] may have a baseless faith in his ability to mount an effective defense. The lure of self-representation may, however, exact a significant price; lost at trial, the defendant may miss important opportunities and even create gaping holes in his own case.” (Fn. omitted.)

Here, defendant asked to represent himself because he had already spent four months in jail awaiting trial and, as he saw it, his attorneys (first the deputy public defender and then Attorney Cohen) had done “nothing” to bring his case to trial. But almost immediately after giving up his right to *201counsel, defendant realized he was not up to the task of representing himself, and he asked to withdraw his waiver of counsel.

At least two states allow defendants to withdraw their waivers of the right to counsel and to obtain new counsel “at any time.” (Ex parte King (Ala. 2001) 797 So.2d 1191, 1193, italics omitted [discussing Ala. Rules Crim. Proc., rule 6.1(c)]; State v. Rickman (1986) 148 Ariz. 499 [715 P.2d 752, 756] [discussing Ariz. Rules Crim. Proc., rule 6.1(e)].) But California has no such rule. In this state, when a defendant has exercised the right to self-representation, a trial court has broad discretion either to grant or to deny the defendant’s later request to abandon self-representation and to obtain counsel. (See People v. Gallego, supra, 52 Cal.3d 115, 164-165; People v. Elliott (1977) 70 Cal.App.3d 984, 994 [139 Cal.Rptr. 205].) The Court of Appeal in Elliott listed some things that a trial court should consider when ruling on such a motion: (1) whether the defendant has a prior history of changing back and forth between representation by counsel and self-representation; (2) the reasons for requesting to withdraw a waiver of counsel; (3) the stage of the proceedings; (4) the possibility of disruption or delay in the proceedings; and (5) whether the defendant is likely to be effective in representing himself. (Elliott, supra, 70 Cal.App.3d at pp. 993-994.) This court in Gallego found these considerations helpful, but it ultimately concluded that what the trial court should evaluate was the totality of circumstances surrounding the motion at issue. (Gallego, supra, 52 Cal.3d at pp. 164-165.)

According to the majority, consideration of the “totality of circumstances” in this case supports the trial court’s denial of defendant’s requests that he be allowed to abandon his self-representation and that he be given appointed counsel. The majority notes that when the trial court addressed the matter on Monday, October 3, the jury had already been sworn and the prosecution’s first witness had started to testify. The swearing of the jury was particularly significant, the majority states, because to reappoint counsel for defendant would have required dismissal of the jury, thus preventing the prosecution from trying codefendant Broomfield who, having “already been placed in jeopardy,” would be unlikely to agree to a mistrial. (Maj. opn., ante, at p. 195.)

The critical date, however, was not Monday, October 3, after the jury had already been sworn and testimony begun. The critical event occurred four days earlier, Wednesday, September 28, when Attorney Walsh (who represented codefendant Broomfield) told the trial court that defendant no longer wanted to represent himself, a fact that defendant, who was present, confirmed. At that time, the jury had not been sworn. Thus, the trial court could simply have excused the prospective jurors, reappointed Attorney Cohen to represent defendant, and put the case over until October 17, the date that just *202hours earlier the master calendar judge had selected as the date on which defendant’s case was to go to trial. Moreover, to allow defendant to withdraw his counsel waiver and to reappoint counsel on September 28 would have posed no double jeopardy bar to the prosecution of codefendant Broomfield, because jeopardy does not attach until the jury is sworn. (People v. Riggs (2008) 44 Cal.4th 248, 279, fn. 12 [79 Cal.Rptr.3d 648, 187 P.3d 363]; People v. Smith (1983) 33 Cal.3d 596, 600 [189 Cal.Rptr. 862, 659 P.2d 1152].) Here, that did not take place until the next day, Thursday, September 29.

Also supporting my conclusion that the trial court abused its discretion in denying defendant’s request at issue are these considerations: Defendant had no prior history of alternating between self-representation and representation by counsel; the reason he gave for wanting counsel was a valid one—he realized that he lacked the necessary skills to represent himself in the proceeding; his request was made on the same day the case was sent out for trial, early on in jury selection, and before anything of significance had happened in the case; little disruption or delay might reasonably be expected to ensue from granting the motion, other than the possible need for the two-week continuance the master calendar judge had already been ready to grant; and defendant’s inability to understand the jury selection process indicated that he was unlikely to be effective in defending against the criminal charges. (See People v. Elliott, supra, 70 Cal.App.3d at p. 994.) Surely, these considerations are relevant in determining whether under the totality of circumstances the trial court abused its discretion, as I conclude it did, in making defendant go to trial without a lawyer.

Even though the clerk’s transcript of the September 28, 2005, afternoon proceeding shows that the trial court “denied” defendant’s “request to have counsel appointed,” the majority concludes that this record notation cannot be “harmonize[d]” with the reporter’s transcript, which includes no express comment by the trial court indicating a denial of defendant’s motion, and that therefore, in the majority’s view, no such motion was made that day. (Maj. opn., ante, at p. 194, fn. 4.)

The majority is wrong. A fair reading of the September 28 transcript shows that Attorney Walsh (who represented codefendant Broomfield) advised the trial court that defendant wanted to “withdraw his pro per status,” a fact that defendant immediately confirmed by explaining that he did not know how to “cross-examine” prospective jurors. The trial court’s awareness of defendant’s desire to have counsel represent him is clear from its statement in court that defendant had chosen self-representation when he “filled out a pro per waiver” and understood “what [he’d] be up against.” It necessarily rejected defendant’s request when, without further inquiry, it recessed the case for the *203day. I also note that the trial court’s denial of defendant’s request for counsel was duly recorded in the court’s minutes. To summarize, unlike the majority, I see no inconsistency between the reporter’s and clerk’s transcripts.

A denial of a criminal defendant’s right to counsel affects “the framework within which the trial proceeds” and thus it is not “simply an error in the trial process itself.” (Arizona v. Fulminante (1991) 499 U.S. 279, 310 [113 L.Ed.2d 302, 111 S.Ct. 1246].) Accordingly, I agree with the Court of Appeal that in this case the trial court’s denial of the right to counsel requires automatic reversal.