Opinion
H042285
06-08-2018
THE PEOPLE, Plaintiff and Respondent, v. EDGAR ESQUEDA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1244975)
Defendant Edgar Esqueda pleaded no contest to assault with a firearm; assault by means of force likely to produce great bodily injury; second degree robbery; battery for the benefit of a street gang; and attempting to dissuade a witness. He also admitted gang and firearm enhancements, and he admitted he had been released from custody on bail at the time of the offenses. The trial court imposed a total term of 10 years.
Esqueda raises two claims on appeal. First, he contends the trial court failed to admonish him adequately before granting his motion to dismiss appointed counsel and represent himself under Faretta. Second, he contends the trial court failed to grant his subsequent request for reappointment of counsel, violating his Sixth Amendment right to counsel. Finding both claims without merit, we will affirm the judgment.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
I. BACKGROUND
The facts of the offenses are immaterial to this appeal. The prosecution charged Esqueda and multiple codefendants with a second amended and consolidated felony complaint in May 2014. Esqueda was charged with six counts: Count 1—assault with a firearm (Pen. Code, § 245, subd. (a)(2)); count 2—assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)); count 3—robbery in the second degree (§§ 211, 212.5, subd. (c)); counts 6 and 7—battery for the benefit of a street gang (§§ 242, 243, subd. (a)); and count 8—attempting to dissuade a victim or witness from prosecuting a crime (§ 136.1, subd. (b)(2)). As to counts 1, 2, 3, and 8, the prosecution alleged Esqueda committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subds. (b)(1)(A), (b)(1)(B), & (b)(1)(C).) As to counts 1 and 3, the prosecution alleged Esqueda was armed with a firearm in the commission of the offenses. (§ 12022, subd. (a)(1).) The prosecution further alleged Esqueda had been released from custody on bail when he committed the offenses charged in counts 1 through 3. (§ 12022.1.)
Subsequent undesignated statutory references are to the Penal Code.
The parties entered a plea agreement whereby Esqueda agreed to plead no contest to all counts in exchange for a prison term of 10 years and the amendment of a firearm enhancement. Esqueda pleaded accordingly and admitted the enhancements.
In September 2014, Esqueda moved to appoint new counsel under Marsden. The trial court found no ineffective assistance of counsel and denied the motion. In November 2014, Esqueda moved to dismiss appointed counsel and represent himself under Faretta. The court granted the motion and relieved appointed counsel.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
In January 2015, Esqueda moved to withdraw his plea on grounds of ineffective assistance of counsel, among others. The trial court denied the motion in March 2015. In April 2015, the court sentenced Esqueda—who continued to represent himself —to a total term of 10 years as contemplated by the plea agreement. The court later granted Esqueda's request for a certificate of probable cause.
II. DISCUSSION
A. Grant of the Faretta Motion
Esqueda contends the trial court erred by granting his Faretta motion without adequately questioning and admonishing him. He argues that, as a result, he did not knowingly and intelligently waive the right to appointed counsel. The Attorney General contends the trial court's admonishments were sufficient and that Esqueda knowingly and intelligently waived his right to counsel.
1. Legal Principles
"[B]ecause the Sixth Amendment grants to the accused personally the right to present a defense, a defendant possesses the right to represent himself or herself." (People v. Marshall (1997) 15 Cal.4th 1, 20 (Marshall).) However, "[c]ourts must indulge every reasonable inference against waiver of the right to [appointed] counsel." (Ibid.) "The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant's conduct and other words." (Id. at p. 23.) "[A] defendant 'should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open." [Citation.]' [Citation]. No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation; the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case. [Citation.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1070.)
We "review the entire record—including proceedings after the purported invocation of the right of self-representation—and determine de novo whether the defendant's invocation was knowing and voluntary." (Marshall, supra, 15 Cal.4th at p. 24.)
2. Procedural Background
About six months after pleading no contest to all counts, Esqueda filed a petition to dismiss appointed counsel and represent himself under Faretta. He personally completed a court-supplied form for the petition stating, among other things, "I understand that I have the right to be represented by a lawyer at all stages of the proceedings and, if I do not have funds to employ counsel, one will be appointed for me by the Court. [¶] If the Court grants my petition to proceed in propria persona, and if I am permitted to represent myself, I understand I will have to conduct my own defense without the aid of counsel." Esqueda listed the code sections of the offenses he was charged with. He acknowledged in handwriting that his prior felony convictions could be used against him as enhancements, and that any enhancements would be used to increase his prison term. Two pages of the petition described 11 "disadvantages of self-representation," all of which Esqueda initialed.
At a hearing on the matter, Esqueda verbally affirmed he had personally completed the petition. He simultaneously moved to withdraw his plea and presented the court with a petition for a writ of coram nobis, which he intended to use as the basis for withdrawing his plea. After he told the court he had not served the prosecution with a copy of his papers, the trial court admonished him that "part of representing yourself is you have to understand what all of the procedural rules of the court are." His appointed counsel stated she had found no grounds for a motion to withdraw the plea and she informed the court she had no intent to pursue such a motion. Esqueda explained that he wished to dismiss counsel "just for this motion" to withdraw his plea.
The court admonished Esqueda as follows: "I do advise you at this point, for all of the reasons that I have just said and just some of the issues that we have just discussed, that it is not wise to represent yourself in this matter. Do you understand that?" (Italics added.) Esqueda responded affirmatively. The court inquired as to whether he had ever represented himself and whether he had done any research to support his motion. Esqueda said he had never represented himself, and explained he had used the law library to research his case.
The court further admonished Esqueda as follows: "And you understand that I can't—if I let you represent yourself, I can't help you. I can't tell you what you have done right or wrong. I can tell you what you have done wrong because I have to rule on your motions, but I can't tell you what to do or how to do it or how to correct any mistakes that you have made. You are on your own in terms of being responsible for doing that. Do you understand that?" Esqueda responded affirmatively and explained he wanted to act as his own lawyer for the purpose of his motion to withdraw his plea. He added, "I was told that I can get new counsel after it was granted." The court responded that, if the Faretta motion were granted, Esqueda would have to request counsel again in the future, which could cause a delay in the proceedings. The court added, "I am not saying that you can never have a lawyer again in the future, but the decision has been made that you are proceeding for all purposes at this point without an attorney. [. . . ¶ . . .] And it would be at the permission and discretion of the Court whether to grant an attorney for you at a later stage of the proceedings." Esqueda responded that he understood.
The court noted Esqueda's high school education and employment history as set forth on the written petition and confirmed that he had no legal training or background. The court reviewed his exposure absent a plea agreement and admonished him that if his motion to withdraw the plea was granted, "everything is back on the table." Esqueda then reaffirmed his intent to dismiss appointed counsel, whereupon the court granted the motion and relieved appointed counsel.
3. Esqueda Knowingly and Intelligently Waived His Right to Counsel
Esqueda contends the trial court's admonishments were deficient in several respects. He relies on People v. Lopez (1977) 71 Cal.App.3d 568 (Lopez). In Lopez, the court set forth "certain suggestions on how to protect the record when a defendant chooses to go it alone." (Id. at p. 571.) These included the following admonishments: That self-representation is almost always unwise and that a defendant may conduct a defense to his or her own detriment; that he or she will receive no special indulgences and must follow all the technical rules; that the prosecution will be represented by an experienced professional counsel who will give no quarter; and that the defendant will not receive extra library privileges. (Id. at pp. 572-573.) The Lopez court further advised trial courts to query the defendant about his or her level of education, familiarity with legal procedures, mental capacity, and awareness of the right to counsel, among other things. (Id. at p. 573.) The court stated these were merely suggestions not intended "to establish any horrendously complex or rigid standards." (Id. at p. 571.)
Esqueda argues first that the trial court's questioning showed he did not have sufficient familiarity with legal procedures to justify self-representation. As a factual matter, it is clear that Esqueda was not fully conversant with criminal procedure. Among other things, the court's exchange with Esqueda showed he misunderstood the nature of a motion to withdraw a plea, framing it instead as a petition for a writ of coram nobis. But as he acknowledges, nothing in Faretta or its progeny requires a finding that the defendant is familiar with criminal procedures, rules, or substantive law. "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." [Citations.] It is not, however, essential that defendant be competent to serve as counsel in a criminal proceeding [citation]; "his technical legal knowledge, as such, [is] not relevant to an assessment of his knowing exercise of the right to defend himself." ' " (People v. Joseph (1983) 34 Cal.3d 936, 943 [quoting Faretta at p. 836].)
Esqueda acknowledges that the questions and admonishments suggested in Lopez, supra, were included in the waiver form. He argues, however, that the trial court failed to question him adequately about the form. For this proposition, he relies on People v. Ruffin (2017) 12 Cal.App.5th 536 (Ruffin) [defendant did not knowingly and intelligently waive right to appointed counsel where Faretta waiver form and admonishments were inadequate]). The trial court in Ruffin, when presented with Ruffin's Faretta waiver form, asked him if he had initialed and signed the form, but the court did not review the form with him. The only admonishments the trial court gave were the statements to defendant, " 'You are not that stupid,' " and to defendant's father, " 'He wants to commit suicide. He has a good lawyer. He doesn't know how to be a lawyer.' " (Id. at p. 546.) The court did not give any other admonishments. The court of appeal held the trial court had inadequately admonished Ruffin based on little more than the completion of a waiver form and those scant remarks: "The [trial] court failed to ascertain on the record that defendant actually read and understood the written Faretta form. The court failed to inquire about ambiguities in the form regarding defendant's understanding of the nature of the charges against him. Nothing in the record—not the oral proceedings or the written Faretta form—advised defendant of the significant possible sentencing consequences of conviction. Under these circumstances, reviewing the record de novo, we do not have confidence that appellant was adequately made aware of the risks and disadvantages of self-representation before his request to represent himself was granted." (Id. at p. 549.)
Esqueda contends his case is like Ruffin because the trial court failed to adequately review the waiver form with him and failed to inquire whether he understood the charges against him. We are not persuaded. Esqueda's case is distinguishable from Ruffin in several respects. First, the trial court here confirmed that Esqueda had personally completed the waiver form by hand, and the court asked him about the answers he had given to questions about his educational attainment and employment history. Given that Esqueda personally handwrote specific answers to the questions on the form, the trial court established that he had in fact read the form and understood it. Second, Esqueda listed the charges against him on the form, and he included statements in his own words about the legal consequences of enhancements. (Cf. Ruffin, supra, 12 Cal.App.5th at p. 541 [space on form for listing the charges was left blank].) Third, the trial court specifically discussed Esqueda's criminal exposure with him. The court admonished Esqueda concerning the response he had given to a question about his criminal exposure on the waiver form, and the court informed him he faced a potential term of more than 28 years. (Cf. id. at p. 547 [neither the court nor the form advised defendant of the penal consequences of conviction].)
A footnote in Esqueda's opening brief challenges the accuracy of the court's statement, but he does not raise this as a claim on appeal.
Finally, the trial court expressly advised Esqueda that it would "not [be] wise to represent yourself in this matter" and asked him whether he understood that. He responded affirmatively. Esqueda challenges this admonishment because the court prefaced it with the phrase "for all of the reasons that I have just said and just some of the issues that we have just discussed" following a discussion about Esqueda's misguided attempt to use a petition for a writ of coram nobis to withdraw his plea. Esqueda contends the "not wise" warning was therefore insufficiently inclusive of all the reasons why it was unwise to represent himself. While it is always helpful for the court to give more reasons why a defendant should not represent himself, we do not think a trial court is constitutionally required to admonish a defendant with the degree of specificity and exactitude Esqueda now demands. (Koontz, supra, 27 Cal.4th at p. 1070 [no particular form of words is required].)
The trial court's oral advisements, together with the written waiver, were sufficient to satisfy the requirements of Faretta and its progeny. We conclude Esqueda knowingly and intelligently waived his right to counsel. Accordingly, this claim is without merit.
B. Request for Reappointment of Counsel
Esqueda contends the trial court violated his Sixth Amendment right to counsel by failing to reappoint counsel subsequent to granting his Faretta motion. The Attorney General contends the trial court did not err in this regard because Esqueda never made an unequivocal request to revoke his pro per status.
1. Procedural Background
As noted above, Esqueda initially moved to dismiss his appointed counsel for the limited purpose of pursuing a motion to withdraw his plea. The trial court advised him that if it granted his Faretta motion, he would have to request counsel again in the future. The court further informed him "it would be at the permission and discretion of the Court" whether to reappoint counsel at that point.
After the court granted his Faretta motion, Esqueda moved in propria persona to withdraw his plea. He filed a written notice of motion and a memorandum of points and authorities in support. Around the same time, he wrote a letter to the court "to express several concerns regarding my case." Among other things, he asserted appointed counsel had not provided him with the case file, he claimed he had suffered ineffective assistance, and he complained about the logistical difficulties of litigating while in custody. At the end of the letter, he added, "I want the court to appoint me new counsel in part on the basis of ineffective assistance of counsel. I cannot adequately raise these issues alone with merely a paging service and as an untrained layperson at law."
The trial court subsequently held a hearing on the motion to withdraw a plea. The court stated that it had read all of Esqueda's filed papers and the court specifically noted the letter. The court then asked Esqueda whether there were any particular issues he wanted to "highlight" but informed him "[y]ou don't have to say everything that you have said before because I have read it, as long as it's something that's contained in this paperwork." Esqueda then argued his motion to withdraw his plea, and the court took it under submission. At no point did Esqueda or the court raise the issue of reappointing counsel. The court later denied his motion to withdraw his plea, and the parties proceeded to sentencing.
Esqueda represented himself at the sentencing hearing. At the start of the hearing, the court expressly asked both Esqueda and his codefendant whether they wished to represent themselves for sentencing. Both Esqueda and his codefendant responded affirmatively, and the parties continued with sentencing. Esqueda did not request appointed counsel again until he filed the notice of appeal.
2. Legal Principles
"A request to revoke in propria persona status and have an attorney appointed is committed to the sound discretion of the trial court. [Citation.] However, such a request must be unequivocal, just as a request to waive counsel must be unequivocal. [Citation.]" (People v. Weber (2013) 217 Cal.App.4th 1041, 1061.) An abuse of discretion in this regard is reviewed for harmless error. (People v. Ngaue (1991) 229 Cal.App.3d 1115, 1127.)
Esqueda contends such an error requires automatic reversal, but he cites no binding authority for this proposition and relies instead on persuasive authorities from the Court of Appeals for the Ninth Circuit. We decline to adopt them.
3. The Trial Court Did Not Abuse Its Discretion
The Attorney General persuasively contends Esqueda failed to make an unequivocal request for reappointment of counsel. Esqueda's only request came in a short passage at the end of a letter setting forth a litany of claims in connection with his motion to withdraw his plea. He had initially requested to represent himself for the limited purpose of litigating that motion, and the court explained he could not do so. Given the context of the letter and the statements within it, the trial court did not abuse its discretion by not reappointing counsel. For example, the court reasonably could have found Esqueda was attempting to circumvent the earlier denial of his Marsden motion by successfully winning the dismissal of appointed counsel only to seek appointment of a new and different attorney. Or, as the court noted before granting Esqueda's Faretta motion, the subsequent grant of a request for reappointment of counsel would likely incur some delay in the proceedings. Trial courts may properly exercise discretion to control the proceedings in those regards.
Esqueda does not contend he had a right to represent himself solely for the limited purpose of litigating his motion to withdraw his plea, and we are aware of no authority for such a proposition. --------
We agree with Esqueda that it would have been preferable for the trial court to address the matter on the record at the hearing on his motion to withdraw his plea. Even assuming the trial court erred by not doing so, however, any error in this regard was harmless under either a constitutional or state law standard for prejudice. (Chapman v. California (1967) 386 U.S. 18 [no prejudice if error was harmless beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818 [prejudice where there was a reasonable probability of a more favorable outcome in the absence of the error].) Esqueda had already entered a plea agreement by that time, and nothing in the record shows any reasonable likelihood his motion to withdraw would have been granted if he had been represented by counsel. At sentencing, the trial court expressly asked Esqueda whether he wished to represent himself, and he affirmatively expressed his desire to do so. Furthermore, the court imposed the same sentence Esqueda had bargained for in his plea agreement. We perceive no reasonable likelihood he would have enjoyed a more favorable outcome if he had been represented by counsel.
For the reasons above, we conclude this claim is without merit. We will affirm the judgment.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Grover, J.