Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Ct.No. RIF147955, Ronald L. Johnson, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald Jakob and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ, P. J.
A jury convicted defendant and appellant Christian Jude Buckle of attempted murder (Pen. Code, §§ 187, 664; count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), and willful infliction of corporal injury on a spouse (§ 273.5, subd. (a); count 3). The jury also found: the count 1 attempted murder was willful, deliberate and premeditated (§ 664, subd. (a)); defendant personally used a deadly and dangerous weapon-a hammer in counts 1 and 3 (§ 12022, subd. (b)(1)); defendant personally inflicted great bodily injury under circumstances involving domestic violence in all three counts (§ 12022.7, subd. (e)); and defendant had two prison priors (§ 667.5, subd. (b)). Defendant contends that the trial court erred by denying his request to represent himself and that the sentencing minute order and abstracts of judgment do not reflect the oral pronouncement of judgment. We affirm with directions to correct the minute order and abstracts of judgment.
Further statutory references are to the Penal Code.
I. BACKGROUND
On January 3, 2009, defendant hit his wife in the head multiple times with a hammer. Prior to being arraigned, defendant was subject to a mental health evaluation. (§ 4011.8.) At a continued arraignment hearing on February 10, 2009, defendant moved to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806. However, because the psychological evaluation had not yet been completed, both arraignment and the Faretta motion were continued to February 24, 2009.
At the start of the continued hearing, defendant’s trial counsel informed the trial court that defendant “has expressed a desire to represent himself.” The trial court confirmed the request with defendant and confirmed defendant’s lack of legal education or graduation from high school. Defendant asserted that he had contemplated the issue and that he had “already been pro per before.” The trial court then directed defendant and his counsel to go over the Faretta form advising of the dangers and consequences of self-representation. After defendant completed the form, and the trial court reviewed the psychological evaluation report, the trial court denied defendant’s request to represent himself.
The psychological evaluation report indicates defendant was “able to identify the charges, ” was aware the charges were serious, and had been told “he could receive from between fifteen years to life.” The evaluation states that defendant’s “thought processes, as reflected in his speech, are noted to be logical and organized. There is no evidence that he has ever suffered psychotic symptoms.... [Defendant] is currently able to accurately perceive events occurring around him without distortion.” The evaluation continues, “[Defendant’s] cognitive functioning is intact. His attention, concentration and comprehension are good. He appears to be of low-average intellectual ability, although this may be an artifact of his limited education.... Social judgment shows evidence of mild impairment, which by history may be secondary to his lifestyle and drug use. Insight is very limited.” “Given some of the comments made by [defendant] during the evaluation, the examiner also questioned him with regard to the issue of competency.” While defendant indicated awareness of the roles of various court officials, “he demonstrates what the examiner believes is poor judgment. He states, for example, that he now wishes to represent himself so that he can ‘tell the court what happened.’ He reasons that because his public defender was not there ‘when it happened, ’ only [defendant] can tell the court ‘what happened.’ He seems to believe that as long as he has an attorney representing him, the judge will not speak to him directly (but will only speak to the district attorney or his public defender). [Defendant] also believes that a public defender does not provide the sort of representation that he would like.” The examiner thought defendant indicated impaired judgment because defendant said he would not intervene if a witness lied in court, because he thought lies “ ‘are noticed from the moment they’re spoken, ’ ” and do not mean anything. The examiner also thought defendant indicated a lack of trust in his own judgment, because he stated he might accept a plea agreement, but might regret it “ ‘a few days later.’ ” The examiner concluded that defendant was not suffering “from any severe psychological disorder, ” but did indicate “a longstanding antisocial personality disorder.” The examiner also reiterated his “concerns regarding [defendant’s] trial competence.” The examiner’s opinion was that defendant “meets the legal criteria to be considered trial competent, ” but believed that defendant’s comments suggested “extremely poor judgment with regard to his case and how he would prefer to proceed with his case.”
The trial court denied defendant’s request because, based upon its review of the psychological evaluation, it did not believe that defendant had the mental competency to represent himself. The trial court stated that in light of the evaluation and the very serious nature of the charges, it “really” felt that defendant did not have the mental competency to represent himself. The trial court stated it was “denying that request without prejudice.” The trial court then gave defendant the opportunity to speak with it directly, as defendant had requested during his examination. Defendant then confusingly indicated that what he wanted was to testify and be cross-examined by the district attorney. The trial court then replied, “Sir, you’re going to have the right to get on the witness stand and testify on your own behalf. And the district attorney will then have the opportunity to ask you direct questions.” Defendant then asked the trial court about the psychological evaluation report. The trial court indicated its reticence to discuss the report in open court, but then said that the doctor “expresses a view that you are marginally competent to stand trial, he does so with some pretty serious reservations.” After confirming that the report said he was competent, defendant asked about the reservations. The trial court declined to discuss them in open court because it did not want anything to be used against defendant later. Defendant stated he was “not worried about it.” The trial court responded that if defendant and his counsel did not agree with its decision, they could seek appellate review. The trial court then continued by noting that its belief, that defendant was not competent to represent himself, was based not just on the report but also by the trial court’s observations of defendant’s responses to its questions, and his demeanor and appearance. Defendant then interjected that telling the truth “makes me competent enough to stand trial by myself.” The trial court then reiterated that it had made its ruling and defendant could seek appellate review if he did not agree.
On June 3, 2009, after the People had finished presenting their trial evidence, and immediately before defendant was to testify, defendant indicated he “wanted to take the stand in a narrative fashion.” Defendant’s trial counsel told the trial court that he was not asserting a belief that defendant was going to testify untruthfully, but requested that he be permitted to ask questions of defendant after the narrative but prior to cross-examination. The People responded that Faretta is all or nothing: defendant could represent himself going forward or he could remain represented by counsel. Defendant’s trial counsel again indicated he did not believe that defendant was going to testify untruthfully, but asserted that in such situations defendants may testify in a narrative fashion and then be questioned by counsel. The trial court then stated that evidentiary rules would still apply to a narrative, and that if defendant wished to relieve his counsel then the process of complying with Faretta would be invoked. After conferring with defendant, defendant’s trial counsel stated that defendant “wants to proceed on his own rather than have me assist him... he’s been advised that the rules of evidence will be applied for him.”
The trial court then briefly recessed so research could be done on how to proceed. After the recess, defendant’s trial counsel said, “in speaking with [defendant], we had an extensive conversation and it is my understanding that [defendant] wishes to take the stand and proceed and that [defendant] wishes for me to represent him rather than him to represent himself in this instance.” The trial court then asked defendant “is that your choice to have your attorney represent you in your examination?” Defendant replied, “Yeah.” The trial then resumed.
Defendant was sentenced to life for count 1 (§ 664, subd. (a)), with an additional year for the personal use of a deadly weapon enhancement (§ 12022, subd. (b)(1)), an additional five years for the upper term of the domestic violence infliction of great bodily injury enhancement (§ 12022.7, subd. (e)), and an additional year for each of the two prison priors (§ 667.5, subd. (b)). “Therefore, the sentence will be life plus eight years in state prison.” For counts 2 and 3, the trial court imposed the midterm and stayed them pursuant to section 654. The minute order states that the sentence for count 1 is an “Indeterminate sentence of 07 years to Life, ” and, after reciting the enhancement terms, states “a total Indeterminate sentence of 15 Years to Life.” The sentence was synopsized into two abstracts of judgment, an indeterminate abstract and a determinate abstract. The indeterminate abstract has box 6c. checked, with “7” entered in the space for years, rather than box 5, for a generic life with the possibility of parole sentence.
II. SELF REPRESENTATION
Defendant contends the trial court erred by denying his request to represent himself, since he was competent to stand trial, he was competent to waive his right to counsel and represent himself. The People contend that the trial court could find defendant to be competent to stand trial but not represent himself, defendant impliedly withdrew his request to represent himself by failing to renew his request, and that denying the request was appropriate because defendant’s waiver of the right to counsel was not knowing and intelligent. Denying defendant’s request was error because only a single competency standard exists in California; however, defendant’s subsequent request to be represented cured any error.
A. The Right to Self-Representation Is Absolute
“A criminal defendant has a constitutional right to counsel at all critical stages of a criminal prosecution, including sentencing. [Citations.] The right to counsel may be waived by a criminal defendant who elects to represent himself at trial. [Citation.] The right of self-representation is absolute, but only if a request to do so is knowingly and voluntarily made and if asserted a reasonable time before trial begins.... Moreover, whether timely or untimely, a request for self-representation must be unequivocal. [Citation.]” (People v. Doolin (2009) 45 Cal.4th 390, 453.) “The right to self-representation may be invoked by any defendant competent to stand trial. [Citation.]” (Id. at p. 454.)
Defendant was competent to stand trial and unequivocally sought to represent himself. Defendant was cautioned by the trial court of the dangers of representing himself; he also reviewed the Faretta form with counsel and completed it. Defendant’s request was made prior to his arraignment, thus it was timely because it would not interfere with an impending trial date. Accordingly, the denial of defendant’s request was error because defendant’s right to self-representation was absolute.
B. In California, Competency to Stand Trial Is Competency to Waive Representation
The People assert that because Indiana v. Edwards (2008) 554 U.S. 164 was decided prior to the hearing on defendant’s Faretta motion, the trial court could deny self-representation by applying a different standard of competency than competence to stand trial. However, “Edwards did not hold... that due process mandates a higher standard of mental competence for self-representation than for trial with counsel.” (People v. Taylor (2009) 47 Cal.4th 850, 877.) Instead, Edwards only permits states to adopt a competency standard for self-representation that differs from the standard of competency to stand trial. (Id. at p. 878.) Thus, “ ‘Edwards did not alter the principle that the federal constitution is not violated when a trial court permits a mentally ill defendant to represent himself at trial, even if he lacks the mental capacity to conduct the trial proceedings himself, if he is competent to stand trial and his waiver of counsel is voluntary, knowing and intelligent.’ [Citation.]” (Ibid.) Our Supreme Court has not adopted a differing competency standard, and post-Edwards has stated that “[t]he right to self-representation may be invoked by any defendant competent to stand trial. [Citation.]” (People v. Doolin, supra, 45 Cal.4th at p. 454; see also People v. Halvorsen (2007) 42 Cal.4th 379, 433 [pre-Edwards case holding that denying a motion for self-representation due to “mental incapacity not amounting to incompetency to stand trial... was invalid”].) Accordingly, Edwards did not grant the trial court the discretion to apply a different standard of competency.
C. Subsequent “Wish” to Be Represented Cures Error
The People contend defendant withdrew his request by failing to reassert his request, acquiescing to representation by counsel at subsequent hearings, and by having his misconceptions about trial procedure resolved prior to taking the stand during trial. Defendant contends that the term “without prejudice” would not indicate to a lay person the option of repeating his request, that the trial court was clear that appeal was defendant’s remedy, and that the withdrawal of his midtrial request to represent himself was due to the impracticality of assuming his own representation midtrial. We hold that defendant cured any error in denying his Faretta motion by subsequently requesting to continue being represented by counsel. Accordingly, we do not address the People’s other withdrawal theories.
“[A] waiver or abandonment of the Faretta right to self-representation may be inferred from a defendant’s conduct. [Citations.]” (People v. D’Arcy (2010) 48 Cal.4th 257, 285.) For instance, a defendant’s acquiescence during trial to the participation of standby counsel bars complaining that the participation infringed on the right to self-representation, and a statement by a defendant that representation by counsel is wanted cures any error from an earlier denial of a Faretta request. (Ibid.)
In People v. Dunkle (2005) 36 Cal.4th 861, 906-910 (disapproved on other grounds by People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22), the defendant had a Faretta motion erroneously denied, but after the error was discovered prior to voir dire he was asked if he wanted to represent himself. The defendant said he did not and that he wanted the lawyer to take responsibility for the case, he then made confused statements about being unable to sign anything “ ‘because it is the responsibility of the government and they are responsible for the murders for controlling Mr. Dunkle on the headwave without the permission of Jon Dunkle.’ ” (Id. at p. 908.) Our Supreme Court held that the defendant’s statements after the discovery of the error “cured the error in denying defendant his Faretta rights.” (Id. at p. 910.) Thus, “the Faretta error was nonprejudicial.” (Ibid.) Our Supreme Court then rejected the contention “that a defendant who, following an erroneous denial of his assertion of Faretta rights, validly waives the right to self-representation and proceeds to trial represented by counsel is entitled to relief on appeal.” (Ibid.)
In People v. Butler (2009) 47 Cal.4th 814, the defendant’s self-representation was revoked after misconduct in jail; subsequently, the defendant was permitted to represent himself in a challenge to the facts underlying the misconduct. However, the defendant hesitated to ask questions of his witness that might incriminate the defendant, asked no questions of the witness, submitted, and then had the revocation of his self-represented status reaffirmed. (Id. at pp. 821-822.) The defendant filed a renewed Faretta motion, which was granted. (Id. at p. 822.) However, a week prior to trial, the redaction and delivery of voluminous discovery had not been completed, the jail would not give the defendant all of the materials at one time, and thousands of pages remained to be redacted. (Id. at p. 823.) After advisory counsel stated he was able to proceed, the trial court again revoked the defendant’s self-represented status. (Ibid.) The defendant made no further Faretta motion. (Id. at p. 824.) Our Supreme Court held that “[n]o waiver or abandonment [could] be gleaned from this record.” (Id. at p. 826, fn. 3.)
Defendant’s Faretta motion was erroneously denied, but he was given an opportunity to revisit the issue of self-representation. At that subsequent opportunity, defendant’s trial counsel stated that defendant “wishe[d]” to be represented. Accordingly, defendant’s situation is analogous to Dunkle, and distinguishable from Butler, in that he chose representation by counsel rather than having counsel imposed on him. Thus, defendant cured any error from the improper denial of his right to self-representation under Faretta, and rendered the error nonprejudicial. (Dunkle, supra, 36 Cal.4th at p. 910.)
III. SENTENCING RECORDS
Defendant contends the abstracts of judgment and sentencing minutes do not “accurately reflect the trial court’s oral pronouncement of judgment” because they indicate a sentence of 15 years to life, but the trial court “stated it was sentencing [defendant] to ‘life plus eight years in state prison.’ ” The People agree that the minute order should be corrected because it states “total Indeterminate sentence of 15 Years to LIFE, ” but disagree as to the abstracts of judgment because of the seven-year minimum period of imprisonment prior to parole eligibility in a life sentence (§ 3046). Defendant agrees that a seven-year minimum prior to parole eligibility applies but contends that the use of box 6c rather than box 5 could lead to defendant “serving 15 years prior to starting his life term.”
Defendant must serve seven years of his indeterminate sentence before he is eligible for parole (§ 3046), and he must serve any consecutive determinate term prior to serving any portion of the indeterminate life sentence (§ 669). However, the punishment for defendant’s count 1 attempted murder is “imprisonment in the state prison for life with the possibility of parole” (§ 664, subd. (a)), and the trial court could not “fix the term or duration” of the indeterminate sentence (§ 1168, subd. (b)). Accordingly, the minute order and abstracts of judgment should have described defendant’s sentence for count 1 as “life with the possibility of parole.” (See § 664, subd. (a).)
IV. DISPOSITION
The superior court clerk is directed to correct the indeterminate abstract of judgment, so that box 5 is checked and box 6c remains blank. The clerk is further directed to correct the sentencing minute order to state “indeterminate sentence of life with the possibility of parole” as the sentence for count 1, and a total “indeterminate sentence of life with the possibility of parole and a consecutive determinate sentence of eight years.” The clerk is then directed to forward certified copies of the corrected sentencing minute order, the corrected indeterminate abstract of judgment, and the determinate abstract of judgment, to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST, J., MILLER J.