Franco Lopez, A/K/A Eduardo T. Hernandez v. S. Frank Thompson, Opinion

202 F.3d 1110, 2000 Daily Journal DAR 1409, 2000 Cal. Daily Op. Serv. 962, 2000 U.S. App. LEXIS 1418, 2000 WL 126586
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 4, 2000
Docket97-35837
StatusPublished
Cited by129 cases

This text of 202 F.3d 1110 (Franco Lopez, A/K/A Eduardo T. Hernandez v. S. Frank Thompson, Opinion) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Franco Lopez, A/K/A Eduardo T. Hernandez v. S. Frank Thompson, Opinion, 202 F.3d 1110, 2000 Daily Journal DAR 1409, 2000 Cal. Daily Op. Serv. 962, 2000 U.S. App. LEXIS 1418, 2000 WL 126586 (9th Cir. 2000).

Opinions

Opinion by Judge McKEOWN; Concurrence by Judge WALLACE; Dissent by Judge TASHIMA.

McKEOWN, Circuit Judge:

The question before us is whether Franco Lopez knowingly and intelligently waived his right to assistance of counsel at sentencing in accord with Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Resolution of this question requires us to consider two important, and often competing, constitutional rights applicable to a criminal proceeding: the right to assistance of counsel and the correlative right to waive assistance of counsel. Under the circumstances of this case, which included two hearings and a written waiver, we conclude that Lopez did knowingly and intelligently waive his right to counsel and choose self-representation.1 We thus affirm the district court’s denial of Lopez’s petition for writ of habeas corpus brought under 28 U.S.C. § 2254.

BACKGROUND AND PRIOR PROCEEDINGS

This case originated in state court in Multnomah County, Oregon, and stems from Lopez’s sexual assault of the 11-year-old daughter of a woman with whom he was living. Represented by counsel, Lopez pleaded no-contest to three counts of sodomy in the first degree and one count of sex abuse in the first degree. Two hearings — the plea hearing and the hearing on Lopez’s motion to remove counsel — as well as Lopez’s written waiver of counsel bear on this appeal.

Plea Hearing

At the plea hearing on October 25, 1989, Lopez was represented by attorney William Brennan. Judge Haas apprised Lopez of the charges, the possible prison terms and fines for each count, and the possibility of probation. Lopez indicated that he understood:

The Court: The charges against you are sodomy in the first degree, two counts; sex abuse in the first degree; sodomy in [1113]*1113the first degree. Each one of these is punishable by imprisonment of 20 years in prison with a ten year minimum. Further, [there is] a $100,000 fine on each one of them and the sex abuse in the first degree is punishable by five years with a two and a half year minimum and $100,000 fíne. Those sentences could run concurrent and they could run consecutive. Some of them you could be sentenced to the penitentiary and others you could be placed on probation. Do you understand that?
Mr. Lopez: Yes sir.

At the hearing, the deputy district attorney advised that the state would seek a “dangerous offender” charge.2 The judge explained to Lopez that if such a charge were sought, then a psychiatrist would examine him to recommend whether he should be classified as a dangerous offender. In a colloquy involving the judge, the deputy district attorney, and Brennan, Lopez was told that if he were classified as a dangerous offender, his sentence on one count would increase from a range of 10-20 years to a range of 15-30 years. Again, Lopez acknowledged that he understood:

Deputy District Attorney: Does the Court need to advise of a dangerous offender?
The Court: Yes, I am getting down to that. The District Attorney stated that what we are going to do in reference to this case is there will be — as I understand it, there will be dismissal of charges, is that right?
Deputy District Attorney: There is [sic] four charges and we would seek a dangerous offender on only one charge.
Mr. Brennan: Rather than multiple.
Deputy District Attorney: Rather than seeking consecutive.
The Court: We will await a PSI and they would seek one dangerous offender charge. On the dangerous offender charge, what happens if they seek that, what I do is appoint a psychiatrist who interviews you and gives you an examination and they-make a recommendation whether or not you have a sustained potential for dangerous offender treatment. If you do[,] that means the Court on that count can sentence you to a maximum of 30 years to the State Corrections Division. Do you understand that? That is an issue in this ease.
Mr. Lopez: I understand, sir.
Deputy District Attorney: Your Honor, should we indicate there is a potential 15 year minimum on that?
The Court: Yes. There is a 15 year minimum on that also.
Mr. Brennan: Just for clarification, the way I explained it to [Lopez] is that would only enhance one of the 20 year sentences from 20 to 30 and from ten year minimum to a 15 year minimum if the Court were to find him a dangerous offender, only if.
The Court: Yes....

Hearing on Motion to Remove Counsel

Eight days later, on November 2, 1989, Lopez appeared before a different judge, Judge Roth, for another hearing. The subject of the hearing was Lopez’s motion to remove Brennan — Lopez’s fourth attorney in a succession of counsel3- — as his counsel for the sentencing proceeding. Lopez insisted to the court that he desired to proceed to the sentencing hearing without representation of counsel. Brennan recommended against Lopez’s self-representation at sentencing and explained to Judge Roth in open court, in Lopez’s presence, that to determine dangerous offender status, psychiatrists would evaluate Lopez and then either testify or submit reports to the judge:

Mr. Brennan:.... We were in front of Judge Haas, and Mr. [Lopez] entered a pleading of no-contest on the underlying case. Sentencing was set for the 27th of November ...[;] and [as to] the fugitive matter which is I believe the second [1114]*1114case down on your docket, ... Judge Haas indicated that he would hear that matter at the conclusion of sentencing. Mr. [Lopez] has informed me that he wants to fire me and would like to represent himself.
Deputy District Attorney: Your honor, I should inform the court the state is opposed to any change ... [;] this would make the fifth attorney for this defendant: Mr. Levy, Mr. Ravio, Mr. Ameras ..., and Mr. Brennan have all been on this case and all have had difficulty with the defendant....
The Court: What charges does he have? Deputy District Attorney: He has a fugitive matter and a number of Sodomy charges.
Mr. Brennan: He has three counts of Sodomy in the First Degree ... and one count of Sex Abuse in the First Degree .... [T]he District Attorney ... would be recommending a dangerous offender treatment on one count, one count only. I have contacted Dr. Frank Collistro to evaluate Mr. [Lopez], That is in place, and also Dr. David Meyers would be ... evaluating Mr. [Lopez], ... and the two would then submit their reports to Judge Haas or testify as the case may be on that issue. I really think that Mr. [Lopez] would be better served by having an attorney to assist him rather than representing himself. ...

Judge Roth then turned his attention to Lopez, inquired about his background, and told him that he should have legal advice:

The Court:.... Mr. [Lopez],_ How old are you?
Mr.

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202 F.3d 1110, 2000 Daily Journal DAR 1409, 2000 Cal. Daily Op. Serv. 962, 2000 U.S. App. LEXIS 1418, 2000 WL 126586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franco-lopez-aka-eduardo-t-hernandez-v-s-frank-thompson-opinion-ca9-2000.