Opinion
C083681
08-27-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID ARRON CLARK, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCCRCRBF20167801)
Defendants in criminal cases have a federal constitutional right to represent themselves when they voluntarily and intelligently elect to do so. (Faretta v. California (1975) 422 U.S. 806, 807, 819-820, 835-836 (Faretta).) After defendant David Arron Clark opted to represent himself, a jury found him guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); statutory section references that follow are to the Penal Code unless otherwise stated) and willful infliction of corporal injury resulting in a traumatic condition upon a cohabitant (§ 273.5, subd. (a)). The jury also found true the allegation that he used a deadly weapon—a wooden bat. (§ 12022, subd. (b)(1).) Following the appointment of counsel, the trial court sentenced him to an aggregate term of four years in prison but suspended execution of sentence and placed him on probation for three years.
On appeal, defendant's sole contention is that the judgment must be reversed because the trial court abused its discretion in denying his request for appointment of advisory counsel. We affirm the judgment.
FACTS AND PROCEEDINGS
In view of the issue raised on appeal, we need not provide a detailed recitation of the facts underlying defendant's convictions. Defendant and his live-in girlfriend got into an argument around midnight on June 7, 2016. During the argument, defendant yelled at his girlfriend and physically assaulted her, including striking her on the head twice with a small wooden bat. A photograph of the wooden bat as well as photographs of the girlfriend's injuries were admitted into evidence. At trial, the parties stipulated the stains on the bat were not the girlfriend's blood.
On June 10, 2016, defendant was charged by complaint with assault with a deadly weapon (§ 245, subd. (a)(1)) and willful infliction of corporal injury resulting in a traumatic condition upon a cohabitant (§ 273.5, subd. (a)). It was also alleged that defendant personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)) and personally used a deadly and dangerous weapon—a wooden bat (§ 12022, subd. (b)(1)).
At the arraignment on the complaint, defendant said he wanted to represent himself after he was told that it did not appear he was eligible for court-appointed counsel. The trial court explained to him the disadvantages and dangers of self-representation. Before granting defendant's request for self-representation, the trial court orally reviewed his constitutional rights, including his right to be represented by counsel, his right against self-incrimination, his right to a speedy trial, his right to subpoena witnesses and evidence, his right to cross-examine witnesses against him, and his right to appeal if he is convicted of the charges. Thereafter, defendant pleaded not guilty to the charges and denied the enhancement allegations.
Following the preliminary hearing, an information was filed on July 5, 2016. At the arraignment on the information, the trial court, again, informed defendant that he had the right to counsel. After defendant indicated that his financial situation had changed due to the closure of his business, the court advised him that he was eligible for court-appointed counsel, and that counsel from the public defender's office would be appointed upon his request. The court also advised defendant that he had the right to represent himself. A discussion then ensued during which defendant requested "hybrid representation." Defendant explained: "I would like to maintain control of the motions and the important decisions in my case but have professional legal counsel to give me advice." In making his request for hybrid representation, defendant referenced People v. Moore (2011) 51 Cal.4th 1104 (Moore).
In Moore our Supreme Court restated the "long-standing rule that a defendant has no right, under either the federal or state Constitution to 'hybrid representation.' " (Moore, supra, 51 Cal.4th at p. 1119.) That notwithstanding, the trial court may exercise its discretion to appoint hybrid counsel in the interests of justice. (Id. at p. 1120.)
Moore explained in a footnote that "hybrid representation" includes: "(1) standby counsel, in which the attorney takes no active role in the defense, but attends the proceedings so as to be familiar with the case in the event that the defendant gives up or loses his or her right to self-representation; (2) advisory counsel, in which the attorney actively assists the defendant in preparing the defense case by performing tasks and providing advice pursuant to the defendant's requests, but does not participate on behalf of the defense in court proceedings; and (3) cocounsel, in which the attorney shares responsibilities with the defendant and actively participates in both the preparation of the defense case and its presentation to a degree acceptable to both the defendant and the attorney and permitted by the court." (Moore, supra, 51 Cal.4th at p. 1119, fn. 7.)
After the court told defendant that it "normally" does not appoint standby counsel, defendant stated that he wanted to continue representing himself. Defendant explained that he wanted control over the motions that would be filed and all other tactical decisions. Thereafter, the court appointed an investigator to assist defendant and entered not guilty pleas to the charges and denials to the enhancement allegations. The court also reminded defendant of his constitutional rights, including his right to counsel.
On July 28, 2016, the trial court expressed a doubt about defendant's mental competence to represent himself. The court ordered that he be evaluated by a psychologist, Kent R. Caruso, Ph.D., to determine whether he satisfied the competency standard set forth in People v. Johnson (2012) 53 Cal.4th 519, that is, whether he suffered from a severe mental illness to the point where he could not carry out the basic tasks needed to present the defense without the help of counsel. (Id. at p. 530.) In ordering the evaluation, the court told defendant that it wanted him to "get a fair trial."
On August 8, 2016, the trial court received a letter from Dr. Caruso indicating that defendant did not complete the evaluation because he no longer wanted to represent himself. The following day, defendant asked the court to appoint counsel "conditionally." When asked to clarify what he meant, defendant stated, "I would actually request advisory counsel possibly." He explained that he wanted advisory counsel to avoid trial delay and to protect his right to a speedy trial. In response, the court indicated that advisory counsel would not be appointed, stating, "We don't do that." It explained, "So if you want counsel appointed, we'll look into whether or not you qualify for appointed counsel. If you just want someone to advise you but remain your own counsel, we're not going to do that." After defendant confirmed that he was not requesting court-appointed counsel, the court read a portion of Dr. Caruso's letter and then advised him that, because he had "short-circuited" the evaluation, he had two options: schedule another evaluation with Dr. Caruso or have counsel appointed. The court clarified that appointed counsel would not be advisory counsel. In response, defendant said he would retain private counsel.
On August 16, 2016, defendant informed the court that he would not be retaining private counsel because he had decided to represent himself. Thereafter, the court ordered that defendant be evaluated by Dr. Caruso. In doing so, the court stated, "I just want to say one thing, [defendant], just so you're clear, I want you to get a fair trial and I'm gravely concerned that you're not going to be able to get it if you represent yourself. I doubt that you're able to do it, but we'll get a report from Dr. Caruso and we'll go from there."
After Dr. Caruso found defendant mentally competent to represent himself, defendant told the trial court that he wanted to represent himself and indicated that he understood that he had the right to be represented by an attorney. Later that same day, defendant confirmed that he wanted to represent himself. In doing so, he acknowledged that neither standby counsel nor cocounsel would be appointed. Defendant said he was "[k]nowing and intelligently" electing to represent himself.
On August 26, 2016, the trial court, again, asked defendant if he wanted to represent himself. In doing so, the court reiterated to defendant that he had no right to advisory counsel, and explained the consequences of his decision, including that he would not receive any special treatment or assistance from the court. The court also told defendant that opposing counsel was experienced and prepared, and that he would be barred from raising a claim of ineffective assistance of counsel. Defendant acknowledged that he understood the consequences of self-representation and confirmed that he wanted to represent himself. Thereafter, the court denied defendant's written request for appointment of advisory counsel, stating that he had already been heard on that issue and was told that such counsel would not be appointed.
A jury trial commenced on September 2, 2016. Later that same day, the jury found defendant guilty of assault with a deadly weapon (§ 245, subd. (a)(1)) and willful infliction of corporal injury resulting in a traumatic condition upon a cohabitant (§ 273.5, subd. (a)). The jury also found true the allegation that he used a deadly weapon—a wooden bat (§ 12022, subd. (b)(1))—but found not true the allegations that he personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)).
Prior to sentencing, the trial court granted defendant's request for court-appointed counsel. Thereafter, the court sentenced him to an aggregate term of four years in prison but suspended execution of sentence and placed him on probation for three years.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the judgment must be reversed because the trial court abused its discretion in denying his request for appointment of advisory counsel.
A criminal defendant may waive the right to counsel, choosing self-representation. (Faretta v. California, supra, 422 U.S. at pp. 807, 819-821 [45 L.Ed.2d 562, 581].) The trial court has the discretion to appoint advisory counsel to assist the defendant if the defendant makes a showing of need. (People v. Crandell (1988) 46 Cal.3d 833, 861-862 (Crandell), disapproved on other grounds by People v. Crayton (2002) 28 Cal.4th 346, 364-365; see Moore, supra, 51 Cal.4th at p. 1120 [trial courts retain the discretion to permit hybrid representation when the interests of justice support such an arrangement].) In deciding whether to appoint advisory counsel, the trial court may consider "the reasons for seeking appointment of advisory counsel." (Crandell, at p. 863.) However, a defendant who elects to represent himself has no constitutional right to cocounsel, advisory counsel, or other form of "hybrid" representation. (People v. Clark (1992) 3 Cal.4th 41, 111, overruled on other grounds in People v. Pearson (2013) 56 Cal.4th 393, 462; Moore, supra, 51 Cal.4th at pp. 1119-1120, fn. 7; People v. Phillips (2006) 135 Cal.App.4th 422, 428.)
A request for the appointment of advisory counsel is left to the sound discretion of the trial court and if " 'there exists "a reasonable or even fairly debatable justification, under the law, for the action taken, such action will not be here set aside. . . ." ' " (Crandell, supra, 46 Cal.3d at p. 863; Moore, supra, 51 Cal.4th at p. 1120.) "[J]udicial discretion implies the absence of arbitrary determination, capricious disposition, or whimsical thinking. . . . Discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered." (People v. Henderson (1986) 187 Cal.App.3d 1263, 1268.) However, when a court exercises its sound discretion in declining to appoint advisory counsel, its decision should not be disturbed on appeal. (See, e.g., People v. Garcia (2000) 78 Cal.App.4th 1422, 1431 [reasoning that "if [a defendant] is not able to defend himself without the assistance of advisory counsel, then he is not competent to represent himself"]; Brookner v. Superior Court (1998) 64 Cal.App.4th 1390, 1396 [criticizing the practice of appointing self-represented criminal defendants advisory counsel and characterizing it as " 'self-representation-plus' "].)
We find no abuse of discretion in the trial court's decision to deny defendant's request for advisory counsel. Prior to trial, defendant made clear he did not want court-appointed counsel. Instead, he wanted advisory counsel to give him advice to avoid trial delay and protect his right to a speedy trial. However, he never attempted to make a showing of need for advisory counsel. This case did not involve complex legal or factual issues. The jury trial, which commenced less than three months after the complaint was filed, lasted less than three hours. The prosecution called three witnesses: the victim, a nurse practitioner, and a police officer. Defendant called one witness: his estranged wife. When the victim testified, she claimed that defendant physically attacked her during an argument, including striking her twice on the head with a "club." Because defendant did not testify at trial and only called his estranged wife to testify as to his character, his guilt turned on whether the jury believed the victim. In closing argument, defendant argued the evidence did not show that he struck his girlfriend with a club. He reasoned that, if he had done so, there would have been blood on the club and his girlfriend would have suffered more severe injuries. On this record, we cannot say the trial court's decision was arbitrary, capricious, or the result of whimsical thinking such that it exceeded the bounds of reason. (People v. Henderson, supra, 187 Cal.App.3d at p. 1268.)
Defendant argues that his deficient performance in representing himself shows that the trial court abused its discretion in denying his request for advisory counsel. In making this argument, appellate counsel reasons as follows: "The record demonstrates that [defendant's] request for advisory counsel was reasonable and, in light of all the circumstances, should have been granted, or at least should have been given individualized consideration rather than being summarily denied as inconsistent with the court's usual practice. His principal concern in making the decision to represent himself was protecting his right to a speedy trial and avoiding delay that likely would occur if an attorney were to take over his defense. [Citations.] But any reasonable judge considering all of the circumstances would have had to conclude that [his] performance in his case was lacking and would have benefitted from the advice of competent advisory counsel." We are unpersuaded by defendant's argument. Defendant was repeatedly warned about the dangers of self-representation. The consequential prejudice defendant alleges is the natural result of an untrained criminal defendant representing himself, and it does not demonstrate that the court abused its discretion in denying his request for advisory counsel. In our view, defendant's argument merely attempts to do indirectly what he cannot do directly—"a pro se defendant may not claim incompetent representation as a basis for reversal on appeal." (Crandell, supra, 46 Cal.3d at p. 856.)
Because we have addressed the merits of defendant's claim, we need not and do not, address the People's contention that defendant's claim is not cognizable on appeal.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J. We concur: HOCH, J. RENNER, J.