People v. Kenner

223 Cal. App. 3d 56, 272 Cal. Rptr. 551, 1990 Cal. App. LEXIS 913

• Court: California Court of Appeal
• Decided: August 23, 1990
• Docket: A043899
• Status: Published

Opinions

Opinion

STRANKMAN, J.

Appellant Terrance L. Kenner was convicted by a jury of possession for sale of cocaine base, in violation of Health and Safety Code section 11351.5. Appellant contends that the judgment must be reversed because the trial court inadvertently failed to hold a hearing on his timely motion under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525] to represent himself. We conclude that reversal is not required because appellant’s postmotion conduct establishes that he abandoned his request for a Faretta hearing. We affirm the judgment.¹

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 CaI.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 counsel told the court that appellant was “kind of concerned with trying to get his own attorney here, retained attorney.” Counsel also told the court the name of the attorney with whom appellant had been in contact.

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 Code of Civil Procedure section 170.6 challenge. There is no indication that appellant mentioned his Faretta motion at any of these proceedings.

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.

Drawing an analogy to the right to counsel, appellant insists that when a defendant has invoked his right under Faretta to represent himself at trial, a waiver of that right cannot be presumed from a silent record or the defendant’s subsequent conduct. The analogy is flawed because it overlooks significant differences between the two rights. For instance, defendants must be advised of their right to counsel, but not of their right to represent themselves under Faretta. (People v. Salazar (1977) 74 Cal.App.3d 875, 887-889 [141 Cal.Rptr. 753]; People v. Lindsey (1978) 84 Cal.App.3d 851, 861 [149 Cal.Rptr. 47, 2 A.L.R.4th 485]; Annot., Accused’s Right to Represent Himself in State Criminal Proceeding—Modern State Cases (1980) 98 A.L.R.3d 13, 30, § 6 and cases cited.) As a result, routinely the right of self-representation is impliedly and silently waived.

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-representation, an attorney must be appointed. Even if defendant requests to represent himself, however, the right may be waived through defendant’s subsequent conduct indicating he is vacillating on the issue or has abandoned his request altogether. [Citations.] . . . [¶] The right of self-representation, then, is waived if not asserted, while the right to counsel is not. Since the right of self-representation is waived more easily than the right to counsel at the outset, before assertion, it is reasonable to conclude it is more easily waived [than the right to counsel] at a later point, after assertion. Therefore, the cases cited by defendant which establish stringent requirements for waiver of counsel ... do not apply in full force to the right of self-representation. A waiver may be found if it reasonably appears to the court that defendant has abandoned his initial request to represent himself.” (Brown v. Wainwright, supra, 665 F.2d at pp. 610-611.)

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 cocounsel, thereby showing he voluntarily waived his right to proceed pro se and reclaimed his right to counsel].)

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

II. Ineffective Assistance of Counsel

*

III. Disposition

The judgment is affirmed.

Merrill, J., concurred.

1 Appellant also alleges that he was denied effective assistance of counsel; we discuss that contention in a portion of this opinion not certified for publication. Appellant has filed a petition for habeas corpus, repeating his ineffective assistance of counsel claims. That petition has been consolidated with this appeal for purposes of argument and briefing. We deny the petition today by separate order.

2 The facts underlying appellant’s offense are not relevant to the Faretta issue, and are set forth later, in our discussion of appellant’s ineffective assistance of counsel claims.

3 When the prosecutor expressed concern about the effect of delaying the Faretta hearing on appellant’s right to a speedy trial, the court stated that it could hear the matter that afternoon. Appellant himself objected, stating that he was not ready right now, and wanted the Faretta hearing after the 29th. Appellant and the trial court also discussed whether he would be entitled to a continuance if he represented himself.

4 We recognize that in a declaration attached to his habeas petition, appellant asserts that he was not given an opportunity to speak on May 18 (when he was first returned from Santa Clara County) and that he never withdrew his Faretta motion and still wanted to represent himself. However, the record indicates that appellant had numerous opportunities thereafter to mention the Faretta motion but did not do so; he should not now be rewarded for his silence.

See footnote, ante, page 56.