THE PEOPLE, Plaintiff and Respondent, v. TERRANCE L. KENNER, Defendant and Appellant.
No. A043899
First Dist., Div. Three.
Aug. 23, 1990.
223 Cal. App. 3d 56
[Opinion certified for partial publication.*]
A petition for a rehearing was denied September 20, 1990. White, J., was of the opinion that the petition should be granted. Appellant‘s petition for review by the Supreme Court was denied November 20, 1990. Broussard, J., was of the opinion that the petition should be granted.
Scott J. Drexel, under appointment by the Court of Appeal, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, John H. Sugiyama, Assistant Attorney General, Laurence K. Sullivan, Aileen Bunney and Christopher Wei, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
STRANKMAN, J.—Appellant Terrance L. Kenner was convicted by a jury of possession for sale of cocaine base, in violation of
I. Appellant‘s Faretta Motion
A criminal defendant who is competent can waive the right to counsel and represent himself. (Faretta v. California, supra, 422 U.S. at pp. 807, 819-821 [45 L.Ed.2d at pp. 566, 572-574].) When a defendant has timely moved to represent himself, the trial court must determine whether the defendant‘s election is voluntary and intelligent. If those conditions are satisfied, the trial court must allow the accused to represent himself. (People v. Joseph (1983) 34 Cal.3d 936, 943 [196 Cal.Rptr. 339, 671 P.2d 843].) Appellant contends the trial court committed reversible error because it failed to hold a hearing on his motion to invoke his constitutional right to represent himself under Faretta.
A close and detailed examination of the record is essential to assess appellant‘s contention.2 Counsel was appointed for appellant in January 1988. On February 18, a hearing was held in San Mateo County Superior Court on appellant‘s motion for new counsel; after that motion was denied, appellant moved to represent himself. Without question his Faretta motion was both timely and unequivocal, and the trial court appropriately set the matter for hearing on March 1, at appellant‘s request, and continued the trial date.3
On March 1, when the Faretta hearing was called, appellant was not present, because he was in custody in Santa Clara County on another matter. Thereafter, he missed three more hearing dates, March 7 and 23 and April 1, as a result of that custody status. On March 23, defense
When appellant finally did appear on May 18, defense counsel stated: “Basically at the time Mr. Kenner was removed to Santa Clara County we were in the [throes] of a motion. However, I think we can reserve that motion at the present time until we have another pretrial on this matter.” The court reset the matter for trial and confirmed the appointment of the defense counsel. Appellant himself did not mention his Faretta motion.
On June 14, appellant was present when counsel asked to continue a hearing on his motion to strike certain enhancement allegations. After appellant personally waived time for trial, the court continued the motion and reset the trial date. Appellant did not mention his Faretta motion.
On July 7, appellant was present when hearing on the motion to strike and the pretrial conference were continued at defense counsel‘s request. On July 12, appellant was present when the motion to strike was heard and denied, and the trial date of July 18 was confirmed. On July 18, appellant was present, was sworn, and testified, apparently in conjunction with proceedings on a
The case trailed until July 25. Both in the morning and the afternoon, the court considered appellant‘s pretrial motions. Although appellant spoke in response to questions by the court at both sessions, and admitted the enhancement allegations, he did not mention his Faretta motion. At the conclusion of the afternoon session, the court stated, “Okay. I don‘t think we need to do anything else.” Appellant remained silent.
During the three days of the jury trial, appellant did not mention his Faretta motion. The matter was never mentioned again until his opening brief was filed in this court.
Appellant contends the court‘s failure to rule on his timely Faretta motion is reversible per se. From this record, it is apparent that the motion was not acted upon due to the confusion caused by appellant‘s changing custody situation. Thus the case presents a stark judicial choice: who should bear the burden of the omission—the trial court or the mysteriously silent defendant? By urging that the judgment must be reversed, appellant would absolve himself of any vestige of responsibility. That position is not justified by either the law or the facts.
Although the question here may not yet have been considered by a California court, courts in other jurisdictions have concluded that a defendant‘s conduct may amount to a waiver or abandonment of the right of self-representation. (See Annot., Accused‘s Right to Represent Himself, supra, 98 A.L.R.3d 13, 31, § 7 and cases cited.) Principal among those cases is Brown v. Wainwright (5th Cir. 1982) 665 F.2d 607, in which the Fifth Circuit majority, sitting en banc, squarely held that after a defendant has asserted the right of self-representation, a waiver may be found if it reasonably appears from the conduct of the defendant that he has abandoned his request to represent himself. (Id., at p. 611.)
In Brown, appointed counsel moved to withdraw after defendant indicated he wanted to represent himself. A hearing was held, but the court deferred its ruling and asked counsel to see whether his differences with his client could be worked out. Counsel then informed the court that those differences had been resolved, and that defendant had changed his mind and wanted counsel. Defendant worked with counsel and an investigator to prepare a defense, but on the third day of trial, he unsuccessfully renewed his request to represent himself. Later, defendant sought habeas corpus relief on the ground that he was denied his right to represent himself. (Brown v. Wainwright, supra, 665 F.2d at pp. 609-610.)
Comparing the right of self-representation and the right to counsel, the majority in Brown reasoned that while the right to counsel is in force until waived, the right of self-representation does not attach until asserted. The majority explained: “The important distinction in the manner in which the two rights come into play requires that a different waiver analysis be applied to the right of self-representation than to the right to counsel. Unlike the right to counsel, the right of self-representation can be waived by defendant‘s mere failure to assert it. If on arraignment an indigent defendant stands mute, neither requesting counsel nor asserting the right of self-
The Brown majority also held that although in some cases a “personal dialogue” between the court and the defendant may be advisable to determine whether there is a waiver, no such inquiry is necessary where all circumstances indicate that the defendant has abandoned his request to conduct his own defense. (Brown v. Wainwright, supra, 665 F.2d at pp. 611-612.) The court concluded that defendant‘s subsequent conduct after his initial request to represent himself supported a finding of waiver. In part, the court noted that after the initial hearing, defendant did not inform the trial court of his continuing desire to conduct his own defense, despite opportunities to do so. (Id., at p. 611.)
The United States Supreme Court has itself indicated that a waiver of the right of self-representation may be presumed from conduct. In McKaskle v. Wiggins (1984) 465 U.S. 168 [79 L.Ed.2d 122, 104 S.Ct. 944], defendant‘s motion to proceed pro se was granted, but the court also appointed standby counsel. Both before and during trial, defendant frequently changed his mind about standby counsel‘s participation, sometimes objecting to that participation, but sometimes soliciting counsel‘s help. After his conviction, defendant urged that standby counsel‘s conduct had deprived him of his Faretta right to present his own defense. Rejecting that argument, the court reasoned in part, “A defendant can waive his Faretta rights. . . . [¶] . . . Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant‘s acquiescence, at least until the defendant expressly and unambiguously renews his request that standby counsel be silenced.” (McKaskle v. Wiggins, supra, at pp. 182-183 [79 L.Ed.2d at p. 136], italics added; see also State v. Bebb (1987) 108 Wn.2d 515 [740 P.2d 829, 835] [defendant granted right to represent self; standby counsel appointed; two weeks before trial, defendant asked to have standby counsel appointed as
We consider the foregoing authority persuasive and hold that a defendant‘s conduct may indicate an abandonment or withdrawal of a request for a Faretta hearing.
In the present case, the record establishes that appellant had ample opportunity to call the court‘s attention to the neglected Faretta motion, but did not. Unlike the defendant in Brown v. Wainwright, supra, 665 F.2d 607, who renewed his Faretta motion mid-trial, once defendant in this case was returned from Santa Clara County to San Mateo County, his conduct throughout the proceedings indicated unequivocally that he agreed to and acquiesced in being represented by counsel. Although he spoke more than once, he said and did nothing suggesting any dissatisfaction with counsel‘s representation.
One interpretation of this record is that appellant realized that the trial court forgot the Faretta motion in the confusion resulting from his custody situation, and slyly saved his Faretta ace to play triumphantly on appeal. The record does not clearly establish any such cunning strategy; however, if it did, the gamesmanship should not be rewarded. The record also strongly suggests that appellant made the Faretta motion to buy time, got that time, and abandoned the motion. But our view of these facts is simply that appellant had second thoughts about the wisdom of representing himself and abandoned the idea.
Defendants who sincerely seek to represent themselves have a responsibility to speak up. The world of the trial court is busy and hectic, and it is to be expected that occasionally a court may omit to rule on a motion. When that happens, as here, we believe it is reasonable to require the defendant who wants to take on the task of self-representation to remind the court of the pending motion. Therefore, we hold that on this record, where appellant had both time and opportunity to follow up on his request for a hearing on his Faretta motion, and failed to do so, he must be deemed to have abandoned or withdrawn that motion.4
[. . .]
III. Disposition
The judgment is affirmed.
Merrill, J., concurred.
WHITE, P. J., Dissenting.—I would reverse the judgment and remand the case for a new trial. As I see the record made on February 18, 1988, it is true that Kenner‘s request to act as his own attorney was “both timely and unequivocal.” (Maj. opn., ante, p. 58.) Clearly, then, Kenner did not misuse the Faretta (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525]) mandate as a means to unjustifiably delay his trial scheduled for February 29, 1988, or to obstruct the orderly administration of justice. (See People v. Windham (1977) 19 Cal.3d 121, 128, fn. 5 [137 Cal.Rptr. 8, 560 P.2d 1187].) Moreover, given the fact that it was adamantly and unequivocally asserted within a reasonable time prior to the date assigned to commence his trial, Kenner‘s Faretta request did not address the trial judge‘s exercise of sound discretion in determining whether to grant or deny the motion. We know the federal Supreme Court decided in 1975 that under the
The trial judge, on February 18th‘s 11 a.m. calendar, denied Kenner‘s Marsden (People v. Marsden (1970) 2 Cal.3d 118, 123-124 [84 Cal.Rptr. 156, 465 P.2d 44]) motion. Given the record made during the 20-minute Marsden hearing, the judge properly exercised his discretion. From Kenner‘s perspective, however, the judge‘s denial meant that he would be defended at trial by an appointed attorney “who I felt like I have no confidence in, I felt like I have no trust in, . . .” Consequently, a not at all uncommon happening occurred, i.e., Kenner announced that he would like to act as his own attorney, “Because I‘m really adamant about this, because I feel my back is against the wall.”
From his considerable knowledge of and experience with the law of criminal procedure, the trial judge undoubtedly knew that once Kenner timely asserted his Faretta right, there remained but one determination that he must make. “The only determination a trial court must make when presented with a timely Faretta motion is whether the defendant has the mental capacity to waive his constitutional right to counsel with a realization of the probable risks and consequences of his action.” (People v. Joseph, supra, 34 Cal.3d at p. 943, internal quotation marks omitted.)
The record dated February 18, 1988, exposes that the trial judge receiving Kenner‘s timely asserted Faretta motion erroneously decided that he personally would not preside over Kenner‘s Faretta hearing. Instead, he continued the Faretta hearing so as to be presided over by a different judge at a time “in close proximity to trial.” (People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5; People v. Ruiz (1983) 142 Cal.App.3d 780, 790 [191 Cal.Rptr. 249].) It appears that the judge continued the hearing logically, reasoning that Kenner‘s Faretta request spoke as of February 18, when invoked. However, our state Supreme Court in People v. Moore (1988) 47 Cal.3d 63 at page 80 [252 Cal.Rptr. 494, 762 P.2d 1218] citing People v. Turner (1984) 37 Cal.3d 302, 312 [208 Cal.Rptr. 196, 690 P.2d 669], ruled that a Faretta motion is to be decided on the facts as they appear at the time of the hearing.
The case law teaches, and it bears emphasis, that on February 18, 1988, at 11:20 a.m., Kenner asserted the right of self-representation recognized in Faretta, that is to say, his right of self-representation was “constitutionally mandated” and “unconditional,” (People v. Windham, supra, 19 Cal.3d at pp. 127-128) and not subject to the judge‘s discretion to grant or deny.
My reasoning: Initially, the judge responded to Kenner‘s plea to proceed pro se as I quote from the record at page 19, to wit: “I‘m going to—I‘m not going to hear that now. It‘s now almost 20 minutes to 12:00. We spent 20 minutes on your last motion.” Addressing the deputy district attorney upon reentering the courtroom, “The record should reflect the Marsden motion was denied and just as you were on your way in he made a motion for—Faretta motion, which I‘m going to have heard next week.”
Reminded by the prosecution that “trial is set for February 29,” the judge said: “I‘ll do this. I‘ll vacate the present trial date, the 29th, and continue it for trial on March 7. Frankly, that‘s a little better for the court calendar. Got tons of cases set on both days. A little less—fewer tons on the second date.”
Then the prosecutor, apparently intending to goad Kenner, volunteered as regards the plea bargain, i.e., six years in light of nine or ten years’ exposure, “But it won‘t be there the morning of trial.” Kenner understandably took the bait: “I‘d like to answer to that. I refuse to deal. Can I say that?” Kenner then proceeded to ask the only pertinent question to his way of thinking, that is, “When will my motion be heard, your Honor?”
The court suggested “the best day next week.” Kenner‘s appointed counsel then trusted that he did not have to be present. He was going on vacation. The prosecutor correctly surmised: “He does have to be there, I think.”
The trial judge: “Let‘s put it on for the following week. . . .” The People‘s attorney then obliquely raised the issue of timeliness. The trial judge‘s response reasoned as I quote: “He‘s got two weeks before trial he‘s made the motion now, so the motion would have to speak as of this date,”
Mr. Wagstaffe, the deputy district attorney, then suggested to the court: “[W]hereas if you were to hear it today, with two and a half weeks to go to trial, you could conclude sure he can go ahead and represent himself, and not deny the motion. Then that would give him adequate time to prepare.” The court declined, stating, “You‘re saying I could hear it today, grant it and still try the case on March 7 . . . [¶] But I‘m not going to.”
Readily apparent, then, the trial judge remained fixed in his determination to continue Kenner‘s timely Faretta request for hearing for, as he had earlier observed, “the convenience of court and [defense] counsel.” However, Kenner soon saw and heard the judge recant in response to Deputy Wagstaffe‘s disingenuous argument that he was “worried about [an] appellate court down the road saying because it wasn‘t heard today he had to be forced to his choice of giving up a right to speedy trial—” The court responded: “I can hear it at 1:30 this afternoon.”
The court‘s majority opinion, ante, at page 59, and in footnote 3 on page 58, leaves the reader with the impression that Kenner objected to his Faretta request being heard at a time when it must be granted by the judge; and further that he requested a date after “the 29th,” a date arguably placing his motion at the risk of denial in the sound exercise of discretion. Earlier, on page 58 of the majority opinion, they conclude therefore that “the trial court appropriately set the matter for hearing on March 1.” I, of course, vehemently disagree. Because the record‘s interpretation is, in the final analysis, in the eyes of and to some extent the predisposition of the beholder, I set out page 24 of 26 pages of record made on February 18, 1988, to wit:
“THE COURT: At 1:30 we will hear your motion under Faretta vs. California. That‘s a motion to represent yourself.
“THE DEFENDANT: Your Honor, what if I told you I wasn‘t ready to do that right now? Am I compelled? Do I have to do it today?
“THE COURT: No. Matter or fact, if you don‘t do it today, to bring this full circle, you‘re—
“THE COURT: Your counsel, Mr. Wagstaffe has been telling the court if we don‘t hear it today we‘re giving you the right to complain that you are put between a rock and a hard place in terms of your trial date, if you want to exercise your right to speedy trial. [Kenner was not the only person present that became confused.]
“THE DEFENDANT: I don‘t.
“THE COURT: Then when would you like to have your Faretta motion heard?
“THE DEFENDANT: [Defense Counsel] has to be present?
“THE COURT: Yes.
“THE DEFENDANT: I‘d like to confer with him, see when his calendar—
“[DEFENSE COUNSEL]: Anytime after the—from the 29th on.
“THE COURT: Do it tomorrow or after the 29th.
“THE DEFENDANT: After the 29th.
“THE COURT: Sometime during the week of 29th.”
On this record I see a basic breakdown in the orderly administration of justice. Stated otherwise, I see Kenner, still a defendant represented by an attorney, putting an ambiguous hypothetical question to the court in an effort to make clear his options, indeed if any he had, in the premises. I see Kenner‘s appointed counsel remaining silent and uninvolved save and except for making it known to the court whether the dates of continuance tentatively picked would or would not interfere with his planned vacation. I see Kenner seeking advice from the judge as to information that should have been accurately provided by his appointed attorney in privileged consultation. The questions asked of the judge by Kenner in my experience result in a court admonishing a defendant in Kenner‘s shoes to speak through his counsel. I see a judge in effect giving Kenner unsound advice that the judge would have had no occasion to give if Kenner‘s counsel had on Kenner‘s behalf advocated that Faretta, Windham, and Joseph at least contemplated, if not mandated, that because he was the judge presented with the Faretta motion, he must proceed to make the required Faretta inquiries, and the sooner the better if Kenner‘s freedom of choice was to be
Finally, every minute this judgment is allowed to stand, I see a record that “can only lead [Kenner] to believe that the law contrives against him.” (Faretta v. California, supra, 422 U.S. at p. 834 [45 L.Ed.2d at p. 581].)
The court‘s majority, my highly regarded colleagues, rely heavily on Brown v. Wainwright (5th Cir. 1982) 665 F.2d 607 and McKaskle v. Wiggins (1984) 465 U.S. 168 [79 L.Ed.2d 122, 104 S.Ct. 944] in arriving at their decision holding that on the record of Kenner‘s appearances made on and subsequent to February 18, “he must be deemed to have abandoned or withdrawn that [Faretta] motion. [Fn. omitted.]” (See maj. opn., ante,
In closing, I am persuaded that the contribution to Faretta law that this court should make today is “A Faretta hearing offers a court ample opportunity to assure that a defendant understands and accepts the consequences of his decision, and to create a record to support its finding of a knowing waiver. As a result, once a defendant affirmatively states his desire to proceed pro se, a court should cease other business and make the required inquiry. It is through this hearing that the right to counsel is protected . . . [¶] Delay in holding a hearing after the right is unequivocally asserted undermines that right by forcing the accused to proceed with counsel in whom he has no confidence and whom he may distrust. . . . [¶] It therefore follows that sufficient protection of the Faretta right may only be achieved if the trial court is required to hold a hearing when the right is asserted. On review, a court need look only to the character of the assertion, and not beyond, to assure no error was committed. [Fn. omitted.]” (Raulerson v. Wainwright, Secretary, Florida Department of Corrections (1984) 469 U.S. 966, 970 [83 L.Ed.2d 302, 305, 105 S.Ct. 366] [dis. opn. of Marshall, J., on denial of cert.; reported below at 732 F.2d 803 (11th Cir. 1984)].)
Respectfully, the judgment must be reversed.