Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F06904517-0, Donald S. Black, Judge.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Julie A. Hokans, and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Appellant Julia Ann Howell appeals her conviction on one count of second degree robbery (Pen. Code, § 211) and one count of use of tear gas (§ 12403.7, subd. (g)). Appellant’s sole ground for appeal is that she was denied her constitutional right to testify in her own defense despite a timely and adequate assertion of the right. Respondent contends that appellant never made a timely, unequivocal assertion of the right to testify.
All further statutory references are to the Penal Code, unless indicated otherwise.
Section 12403.7, subdivision (g) provides in part that “[a]ny person who uses tear gas or tear gas weapons except in self-defense is guilty of a public offense and is punishable by imprisonment in a state prison for 16 months .…”
First, we conclude that appellant’s statements to the court prior to closing arguments and instruction of the jury were adequate to assert her right to testify, and the trial court abused its discretion in failing to reopen her case to allow her to testify.
Second, we conclude that (1) a violation of a defendant’s fundamental constitutional right to testify on her own behalf is a trial type error that is subject to Chapman harmless error analysis and (2) respondent did not carry its burden of proving the error was harmless beyond a reasonable doubt.
Chapman v. California (1967) 386 U.S. 18.
Accordingly, the judgment of conviction will be reversed.
FACTS
The facts that led to appellant’s conviction are summarized only briefly because the issue raised in this appeal concerns appellant’s assertion of her right to testify in her own defense. Consequently, the primary focus here is on those portions of the reporter’s transcript where appellant indicated her desire to testify.
In September 2005, appellant attempted to leave an Albertson’s store without paying for the items in her cart. Albertson’s employees asked her for a receipt and attempted to stop her from leaving the store. Appellant sprayed the employees with pepper spray and left with the groceries.
At trial, appellant’s lawyer argued mistaken identity. An expert on perception, memory, and eyewitness identification testified for the defense. A police officer testified that one of the Albertson’s employees picked someone other than appellant out of a photo lineup and stated she was 90 percent sure that it was the person from the September 2005 incident.
Appellant contends that during her second Marsden hearing she asserted her right to testify in her own defense and her request was denied. Discussions held at her first Marsden hearing establish the context for the request she made at the second Marsden hearing.
People v. Marsden (1970) 2 Cal.3d 118.
Appellant’s first Marsden motion was heard on December 28, 2006, at a trial confirmation hearing. At the hearing, appellant stated that she did not want to go to trial with her current public defender, that she was more than confident to go to trial, and that “whoever was my attorney I would not take the advice to not testify for myself.” After appellant and her attorney spoke at that hearing, the trial court acknowledged that the various disagreements between appellant and her attorney included whether she should testify. The trial court stated: “Now, certainly, you two may have a disagreement between whether you should testify or not to testify. That is the defendant’s right. You have that right, and it is his place to counsel you, advise you, show you the right and the wrong way of that thinking. Ultimately, that will be your decision.”
At the end of that hearing, the trial court found that an irreconcilable conflict existed between appellant and her court-appointed public defender and stated it would appoint a new attorney to represent appellant.
Appellant made her second Marsden motion during the trial. It was heard the first thing in the morning on April 6, 2007, before closing arguments. At the end of the prior day, the attorneys had stated they had no further evidence. The trial court began that hearing by asking appellant if she thought she wanted to bring a Marsden motion.
“[Appellant]: Yes. I’ve been making reference to this all week, and I didn’t know till yesterday, after you’d left, at the end of the day that Marsden Motion was–that I could ask for one. And I need
“The Court: Haven’t you done one before?
“[Appellant]: Yeah, but I thought–when we were in the trial, I was getting the impression like we were locked in, and there’s no, like, going back or changing what we can do.
“And I can tell you the situation is I want to go on record that this is not a false identification case. I was the same person both times at that place. And in the case to start with, there were a couple of identification discrepancies, and he feels it was the best strategy. And I’m not accusing him of corruption or anything like that. He honestly believes it’s the best strategy, and he said be the easiest, fastest. And there were the identification discrepancies, and he does have a very good Ph.D. identification expert for a witness. And–but I–whatever the verdict is, if it’s a not guilty, a hung jury, or a guilty, it wouldn’t be a legitimate or just[] verdict because it would be under false pretense. And I wouldn’t–even if it was a not guilty, I wouldn’t be able to live with good conscience knowing it was under a defense of false [identification].”
Appellant then described a discussion with her attorney and her mother after her case was confirmed for trial. As a result of that discussion, appellant was talked into presenting a false identification defense.
“[Appellant]: … And then come trial Monday, April 2nd, I was continuous with my wanting to–strategy of just saying it the way it really was. And every day I voiced that opinion to him. I voiced it to him Monday; I voiced it to him Tuesday; I voiced it to him Wednesday; I voiced it to him yesterday, Thursday. And every time I did, the mentality was, ‘Well, we already started. I’m the attorney. I know what’s going on. This is the best. Just stick with it.’ And I haven’t agreed with it. It’s not right. It’s not legitimate, whatever the verdict would be.
“And even if my way of doing it, of just saying it the way it is, is not the best and I get a conviction, at least it will be a justifiable, legitimate, right one. And that’s it. And it was just yesterday that I found out, like I said, Thursday at the end, that a Marsden Motion was possible. I thought–I was getting the impression when we got into trial that it was like all set and locked in. And so I’ve been sitting here just not knowing what to do, and I haven’t been allowed to speak. And I just have to.”
Defense counsel confirmed most of what appellant told the court. He stated he had a detailed discussion with appellant and her mother after the case was confirmed for trial. He stated that he told appellant “that it was her decision whether she wanted to go with an identification strategy versus the strategy that she had been putting forward. We all came to an agreement that–that the strategy I intended to present was, in fact, the best strategy to present.”
Defense counsel also stated that appellant expressed reservations about the strategy during the course of the trial. He stated he informed her that he thought his strategy had the best chance for success and that “switching horses in midstream, so to speak, would almost certainly result in a conviction .…”
“[Defense Counsel:] I have never prevented her from speaking. I’ve never indicated to her that she was not able to speak. I have indicated to her that it’s her choice whether or not she wants to testify in this particular matter. And then the first time that a Marsden Motion was mentioned has been this morning, and I brought that to the Court’s attention.”
After an inquiry from the trial court, defense counsel indicated that the first time appellant stated she was no longer willing to proceed with his strategy was after the last of the two defense witnesses had testified. Defense counsel stated appellant told him, “‘No, I don’t want to go forward under this strategy. [T]his isn’t right. I’m not happy with what’s happening.’” The trial court inquired if appellant had any response.
“[Appellant]: Three things there. Actually, the Marsden Motion–I mean, this is the first time it was brought up to do it, but it was brought up Thursday, yesterday, after you left at the end of the day and we were still sitting here. He said that that would be an option. The only option is to stop this strategy if I was just to declare myself guilty, which I’m not going to do, that’s why I pursued a trial because I don’t feel I’m guilty; my strategy, whatever you want to call it, just to say it the way it is. He said the other one would be to ask for a Marsden Motion. So that’s the first time that term was brought up, and then this morning I’m bringing it up.
“And reservations were from the very beginning, March 22nd, when it was brought up. And every single day of this week, the whole trial, every day it’s been brought up. And every day it’s gotten a little stronger, though, because it’s just–I didn’t want it from the beginning. And it’s more that it’s just like locked in, you know. And it’s like I didn’t want it, and it’s just like a snowball going backwards effect.
“And so each day the reservations did get stronger, and yesterday was the last day. So the reservations were the strongest at that point.”
The trial court then indicated that the disagreement over tactics arose after the trial started, that disagreements over trial tactics were not a proper basis for a Marsden motion, and that the motion would be denied. The following exchange then occurred.
“[Appellant]: Does it count for anything that I’m coming out and saying the truth? It is not a false identification case. So we’re going forward with a mistrial or something.
“The Court: I’ve denied your motion. The record of this proceeding will be sealed. Let’s bring in the District Attorney and the jury.
“[Appellant]: Am I allowed to tell the jury the same thing?
“The Court: No.
“[Appellant]: Freedom of speech to tell them the truth. They ought to know. They’re the jury.
“(Thereupon the District Attorney returned to the courtroom and the following proceedings were held:)
“[Appellant]: I guess we can sit and giggle about it. We have a jury that has misinformation.
“The Court: Ma’am.
“[Appellant]: Thank you very much.”
The jurors returned to the courtroom, the trial court read them a couple of stipulations and closing arguments began. The jury was instructed on the law. Among other things, the jury was told that “[t]he People have the burden of proving beyond a reasonable doubt that [appellant] used more force than was reasonable to protect property from imminent harm.”
Later that day, the jury returned verdicts of guilty on the second degree robbery charged in count 1 and the use of tear gas charged in count 2.
During the sentencing hearing, additional information was included in the record regarding the strategy appellant preferred. The deputy district attorney described a letter submitted by appellant by stating: “[S]he says she didn’t do anything wrong, essentially saying that it was the employees’ fault, what took place, the victims in this case. That, essentially, they attacked her, and everything that happened to them they deserved.”
Defense counsel responded by recounting the second Marsden hearing and then stated: “In fact, the People have been aware for quite some time proceeding to trial that there had been some discussion of self-defense in this particular case, especially as it relates to [appellant’s] mental health issues. A reasonable but mistaken belief in the necessity of self-defense, I don’t think, indicates necessarily a lack of remorse in this particular case.”
At the June 2007 sentencing hearing, the trial court found appellant was a suitable candidate for probation and committed her to the custody of the Fresno County Sheriff for 365 days with 73 days of credit. The trial court suspended imposition of sentence pending successful completion of probation. On June 7, 2007, appellant filed a notice of appeal.
DISCUSSION
I. A Defendant’s Right to Testify
A. General Principles
The United States Constitution does not provide criminal defendants with an explicit right to testify in their own defense. That right, however, is inherent in three provisions of the United States Constitution—the due process clause of the Fourteenth Amendment, the compulsory process clause of the Sixth Amendment, and the Fifth Amendment’s privilege against self-incrimination. (Rock v. Arkansas (1987) 483 U.S. 44, 51-53.)
The United States Supreme Court also has cited the First Amendment in a footnote that references the right to testify in one’s own defense. (Faretta v. California (1975) 422 U.S. 806, 834, fn. 45; see Langley v. Adams County, Colo. (10th Cir. 1993) 987 F.2d 1473, 1479 [1st Amend. protects right of witnesses to testify truthfully in a civil action].) We include this reference to the First Amendment because appellant’s statements to the trial court mentioned freedom of speech in connection with her desire to tell the jury the truth.
The California Supreme Court has long recognized that the right to testify in one’s own behalf is “fundamental.” (People v. Robles (1970) 2 Cal.3d 205, 215; see People v. Vargas (1987) 195 Cal.App.3d 1385, 1394 [the right to testify is a fundamental constitutional right personal to defendant].) Furthermore, “[i]t is well-settled that a criminal defendant has an absolute right to testify over the objection of [defense] counsel. [Citations.]” (People v. Gadson (1993) 19 Cal.App.4th 1700, 1710.) In other words, “[a]lthough normally the decision whether a defendant should testify is within the competence of the trial attorney [citation], where, as here, a defendant insists that he wants to testify, he cannot be deprived of that opportunity.” (People v. Robles, supra, 2 Cal.3d at p. 215.)
The right to testify in one’s own behalf is not without limitations. (Rock v. Arkansas, supra, 483 U.S. at p. 55.) States have legitimate interests in the fairness and reliability of the criminal process used to ascertain guilt or innocence. (Id. at pp. 55-56.) As a result, in certain situations state procedural and evidentiary rules can restrict the defendant’s right to testify without violating the Constitution. (Rock v. Arkansas, supra, at p. 56, fn. 11.) The restrictions, however, “may not be arbitrary or disproportionate to the purposes they are designed to serve.” (Id. at p. 56.) In other words, the interests of the state served by a particular rule’s application must be sufficient to justify the limitation imposed on the defendant’s right to testify. (Ibid.; see 22A C.J.S. (2008) Criminal Law, § 900.)
The California Court of Appeal has recognized that a defendant’s right to testify over his or her attorney’s objection “is subject to one significant condition: The defendant must timely and adequately assert his right to testify. [Citation.]” (People v. Hayes (1991) 229 Cal.App.3d 1226, 1231 (Hayes).) The California Supreme Court has endorsed the need for “a timely and adequate demand to testify .…” (People v. Alcala (1992) 4 Cal.4th 742, 805 [trial courts are not required to obtain an affirmative, on-the-record waiver of right to testify].)
The logical implication of the requirement for a timely and adequate demand is that “‘[a] trial judge may safely assume that a defendant, who is ably represented and who does not testify is merely exercising his Fifth Amendment privilege against self-incrimination and is abiding by his counsel’s trial strategy.’” (People v. Cox (1991) 53 Cal.3d 618, 671, quoting People v. Mosqueda (1970) 5 Cal.App.3d 540, 545.)
B. Principles Regarding Timeliness
The California Supreme Court has not adopted an explicit test for determining whether a demand is timely. Decisions published since Hayes typically quote the following statement from Hayes regarding timeliness: “When the record fails to show such a demand, a defendant may not await the outcome of the trial and then seek reversal based on his claim that despite expressing to his counsel his desire to testify, he was deprived of that opportunity.” (Hayes, supra, 229 Cal.App.3d at pp. 1231-1232; see People v. Guillen (1974) 37 Cal.App.3d 976, 984-985 [defendant first told court of his desire to testify at posttrial hearing; assertion was untimely].)
This statement clearly means that a defendant’s request to testify is untimely per se when made after the defendant learns the jury has returned a guilty verdict. The statement is unclear as to whether a demand made before the jury has stated its verdict is untimely. Also, it does not inform practitioners or trial courts how they should go about determining whether a preverdict demand is timely. In sum, the statement in Hayes regarding timeliness is too general to resolve the timeliness questions raised in this appeal.
1. Timely per se
Demands to testify that are made during the defendant’s case-in-chief must be regarded as timely per se. (See § 1093, subd. (c) [order in which defendant offers evidence].) Similarly, where defense counsel does not intend to present any evidence, a demand to testify made at the close of the People’s case-in-chief is timely per se. In People v. Harris (1987) 191 Cal.App.3d 819 (Harris), the defendant asked to testify after the close of the People’s portion of the guilt phase and before defense counsel told the court that the defense rested. (Id. at p. 821.) The trial court, supported by arguments from defense counsel, denied the defendant’s request to testify. (Id. at p. 823.) On appeal, the court stated the defendant had been denied his constitutional right to testify and that it had no option but to reverse. (Id. at p. 826.) In Harris, the parties did not raise and the appellate court did not address the issue of timeliness, which leads us to infer that the timeliness of the request to testify was obvious. Based on Harris, we conclude that a defendant’s request to testify is timely per se when made before the defense rests.
When a request to testify on one’s own behalf necessarily includes a request to depart from the order prescribed in section 1093, California statute grants trial courts the discretion to determine whether good reasons exist for the departure. (§ 1094.) Based on this state rule of procedure, it appears that demands to testify made during trial are timely per se if they do not trigger the discretionary authority contained in section 1094. We recognize that courts from other jurisdictions have used language that suggests that demands are timely per se if made before the close of evidence. For purposes of this appeal, however, we need not decide the last point in the proceedings at which demands are to be considered timely per se. Here, we will assume that the provisions in sections 1093 and 1094 create the dividing line between demands that are timely per se and demands that are committed to the discretion of the trial court.
For instance, the Eighth Circuit Court of Appeals stated: “The right to testify must be exercised at the evidence-taking stage of trial. Once the evidence has been closed, whether to reopen for submission of additional testimony is a matter left to the trial court’s discretion.” (U.S. v. Jones (8th Cir. 1989) 880 F.2d 55, 59; see State v. Mulske (2007) 2007 N.D. 43, ¶ 5 [729 N.W.2d 129, 130] [“‘the right to testify must be exercised at the evidence-taking stage of trial’”]; Henson v. State (2006) 94 Ark.App. 163, 169-170 [227 S.W.3d 450, 455] [same].)
2. Timeliness committed to trial court’s discretion
In this case, appellant’s demand to testify necessarily implied a request to depart from the order of proceedings specified in section 1093. Therefore, the trial court’s discretionary authority under section 1094 was implicated. Section 1094 provides in full: “When the state of the pleadings requires it, or in any other case, for good reasons, and in the sound discretion of the Court, the order prescribed in [section 1093 for the presentation of a case] may be departed from.”
One commentator summarized this procedural rule as follows: “The allowance or denial of a request to reopen the case after one of the parties has rested, after the close of the evidence, during or after the argument to the jury, or after submission of the case to the jury, for the purpose of admission of further evidence, rests in the discretion of the trial court.” (21 Cal.Jur.3d (2001) Criminal Law: Trial, § 400, pp. 672-673, fns. omitted.)
Based on the foregoing, we assume that whether appellant’s demand to testify should have been granted was a question committed to the discretion of the trial court. Furthermore, we conclude that the trial court’s exercise of this discretion must be based on an analysis that weighs the state’s interests in not reopening the evidence against the interests of the defendant in exercising a fundamental constitutional right. (Rock v. Arkansas, supra, 483 U.S. at p. 56, fn. 11.)
It follows that the trial court’s determination regarding the timeliness of appellant’s demand is subject to appellate review under an abuse of discretion standard.
Based on the analysis in Hayes discussed earlier, it appears this discretion ends once the jury has announced a guilty verdict. “‘[A] defendant may not await the outcome of the trial .…’” (People v. Alcala, supra, 4 Cal.4th at pp. 805-806, quoting Hayes, supra, 229 Cal.App.3d at pp. 1231-1232; accord, U.S. v. Pino-Noreiga (9th Cir. 1999) 189 F.3d 1089, 1095 [demand to testify made moments before jury’s verdict was announced was untimely].)
C. Application of Timeliness Analysis to Appellant’s Request
1. Facts regarding April 6, 2007, demand
Appellant’s trial began on April 3, 2007. The trial court ruled on several motions in limine brought by appellant and then jury selection began. The defense presented two witnesses in their case-in-chief. At approximately 2:46 p.m. on April 5, 2007, the defense rested. The deputy district attorney expressed his intention to call some rebuttal witnesses. The trial court and the attorneys discussed the rebuttal witnesses, and the attorneys agreed to enter a stipulation regarding the testimony of one witness. The trial court then asked both attorneys whether there was any other evidence they wished to offer. They both stated they had none. Shortly thereafter, the jury was excused until the next morning and the proceedings were concluded for the day.
At the start of the day on April 6, 2007, and before closing arguments began, defense counsel informed the trial court that appellant wished to bring a Marsden motion. Appellant’s request came after she had rested and the parties had informed the court they had no further witnesses.
We have not stated that the request came after the close of evidence because, although no more witnesses were called after appellant’s request, the trial court read a stipulation to the jury regarding what testimony a witness would have given had she been recalled to the stand.
2. Analysis
As stated in part I.B.1, ante, we assume that appellant’s request was subject to the trial court’s discretionary authority. As a result, we review the trial court’s implied determination that the request was untimely under the abuse of discretion standard.
In People v. Christensen (1890) 85 Cal. 568, the defendant argued that “the court erred in not permitting the defendant to testify in her own behalf when she desired to do so.” (Id. at p. 570.) The California Supreme Court rejected this argument by stating: “The evidence had all gone to the jury, and the court had proceeded with its charge to that body as to the law governing the case, when this offer was made. It thus became discretionary with the court to grant or refuse the request, and we cannot declare that its action was an abuse of its discretion.” (Ibid.)
We conclude People v. Christensen is distinguishable from appellant’s situation because that defendant was in a less favorable posture by the time she asserted her right to testify. There, the jury was being instructed. In this case, closing arguments had not been made and the jury had not been instructed on the applicable law.
In U.S. v. Blum (8th Cir. 1995) 65 F.3d 1436 (Blum), the defendant sent the district court a request to testify after the close of evidence while the attorneys were attending an instruction conference. (Id. at p. 1440.) The district court denied her request. Subsequently, the defendant was “brought back into court, closing arguments were heard, the jury was instructed, and deliberations began.” (Ibid.)
On appeal, the defendant argued the district court abused its discretion in refusing to reopen the evidence so she could testify. The appellate court rejected the argument and stated its reasons as follows: “First of all, [the defendant] was clearly aware of her constitutional right to testify because she belatedly attempted to assert it. Second, it cannot be said that she did not knowingly and voluntarily waive the right.” (Blum, supra, 65 F.3d at p. 1444.)
We conclude that this case is distinguishable from Blum. Initially, we note that there is no question that appellant was aware of her constitutional right to testify before the trial began. She was informed of this right on the record during the December 2006 Marsden hearing. Furthermore, the attorney appointed as a result of her first Marsden motion informed her of this right. In particular, he stated to the court during the second Marsden hearing that “I have indicated to her that it’s her choice whether or not she wants to testify in this particular matter.”
Although appellant knew of her right to testify, the record shows she was confused about how to exercise that right. For instance, her statements at the Marsden hearing indicate that part of her confusion was based on the impression that she had made an election before trial and was stuck with that choice for the remainder of the trial. Also, it appears that after the last witness had testified appellant learned she could exercise her right to testify at any time simply by making a request to the trial court. Furthermore, the trial court’s descriptions of the right to testify did not go so far as to undermine her claim of confusion about when and how she could exercise that right. Similarly, the statements of defense counsel about the advice given to appellant did not establish that, before the defense rested, appellant was aware that she could change her mind and exercise her right to testify simply by informing the trial court of her wish.
We note that trial courts in California do not have a duty to admonish defendants that they have the right to testify or a duty to obtain an on-the-record waiver of that right. (People v. Bradford (1997) 15 Cal.4th 1229, 1332.)
This case is more closely analogous to the situation presented in People v. Solomon (1996) 220 Mich.App. 527, 536 [560 N.W.2d 651, 655] (Solomon), certiorari denied sub nom. Solomon v. Michigan (1998) 524 U.S. 930. In Solomon, the defendant made the request only 30 minutes after the close of proofs and before closing arguments. (Solomon, at p. 533.) The request came immediately after the trial court inquired whether the parties were ready for closing arguments before the jury. (Ibid.) The appellate court ruled that the trial court’s refusal to reopen proofs for the defendant’s testimony was an abuse of discretion. In reaching its ruling, the appellate court stated it was unable to find any indication that allowing the defendant to testify would have (1) given him an unfair advantage, (2) surprised or prejudiced the prosecution, or (3) “disrupted the flow of the trial in any significant way.” (Id. at p. 535.)
In this case, there is no indication that appellant would gain an unfair advantage based on the timing of her request. Nor is there any indication that the prosecution would have suffered prejudice or that any surprise relating to having witnesses available to rebut appellant’s testimony could not have been circumvented by obtaining a continuance.
Consequently, when we balance the negative impact that allowing appellant to reopen her case and testify would have had on the state’s interests in order and fairness against appellant’s interest in exercising a fundamental constitutional right, we conclude appellant’s interests outweighed those of the state under the circumstances. Accordingly, the trial court committed an abuse of discretion to the extent that it denied appellant’s request to testify based on the ground her request was not timely.
D. Adequacy of Demand to Testify
Respondent contends that appellant never made an unequivocal assertion of her right to testify and, therefore, effectively waived the right. Thus, respondent is arguing that the term “adequate”—as it appears in the requirement for “a timely and adequate demand to testify” (People v. Alcala, supra, 4 Cal.4th at p. 805)—should be interpreted to mean unequivocal. If this interpretation were correct, then the formulation of the standard for asserting the right to testify in one’s own defense would be identical to the standard for asserting the right to self-representation. (See People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1002 [“Faretta motions must be both timely and unequivocal”].)
The California Supreme Court has not addressed whether a demand to testify must be unequivocal to be deemed adequate. Because our Supreme Court was and is familiar with the Faretta standard and used the term “adequate” and not the term “unequivocal” when describing the requirement for a demand to testify, we will apply the ordinary meaning of the word “adequate” when analyzing whether appellant’s attempt to testify was legally sufficient.
The definitions of “adequate” in Webster’s Third New International Dictionary (1986) include “fully sufficient for a specified or implied requirement; often : narrowly or barely sufficient: no more than satisfactory” and “legally sufficient.” (Id. at p. 25.) Similarly, Black’s Law Dictionary defines “adequate” to mean “[l]egally sufficient.” (Black’s Law Dict. (8th ed. 2004) p. 42.)
Accordingly, the adequacy of a demand to testify must be determined with reference to its purpose. That purpose is to inform the trial court of the defendant’s desire to exercise the right to testify so that the trial court can either grant or deny the request.
In this case, the trial court was apprised of appellant’s desire to take the stand. Her disagreement with her attorney on that point caused her to make a second Marsden motion. (See People v. Blye (1965) 233 Cal.App.2d 143, 149 [when defendant wishes to take the stand contrary to advice of counsel, defendant should first request court to remove attorney and substitute a new lawyer or defendant in person].) Thus, appellant’s presentation of her demand in connection with a Marsden motion does not render the demand ineffective.
When a demand is intertwined with a Marsden motion, the demand to testify might be regarded as ineffective if it is conditioned upon the appointment of new counsel. In other words, in some situations it will be clear that the defendant does not want to take the stand unless a new attorney is appointed.
In this case, we cannot interpret appellant’s request to testify as conditional or as withdrawn once the trial court stated her Marsden motion was denied. Immediately after her motion was denied, appellant asked, “Am I allowed to tell the jury the same thing?” The trial court said, “No.” She then stated: “Freedom of speech to tell them the truth. They ought to know. They’re the jury.”
In addition, her inquiry about being allowed to tell the jury the truth cannot be interpreted reasonably to mean she wanted to represent herself and argue her case to the jury. In acting as her own advocate, she could only comment on the testimony presented and would not have been able to tell the jury she was at the store and her side of what happened there. (Cf. Hayes, supra, 229 Cal.App.3d at p. 1232 [defendant’s numerous comments during trial never referenced taking the stand and his requests to speak were attempts to cross-examine his mother, to argue his case, to express anger, or to interrupt his mother’s testimony with claims her testimony was biased or untrustworthy].) Because this alternate interpretation of appellant’s statements is not reasonable, we conclude that her statements were satisfactory to inform the trial court that she wished to testify.
Consequently, appellant adequately demanded the right to testify in her own defense. The denial of her request was a violation of her fundamental constitutional right to testify in her own defense.
II. Reversible Error
A. Applicable Standard
Appellant’s opening brief acknowledges the split of authority in California on the issue whether the error is reversible per se or is subject to the “harmless beyond a reasonable doubt” standard enunciated by Chapman v. California, supra, 386 U.S. 18. Division 2 of the Second Appellate District stated the constitutional violation left it “no option but to reverse” (Harris, supra, 191 Cal.App.3d at p. 826), which appears to mean the error was reversible per se. Subsequently, Division 1 of the Fourth Appellate District applied the Chapman standard (People v. Johnson (1998) 62 Cal.App.4th 608, 634-636; Hayes, supra, 229 Cal.App.3d at p. 1234, fn. 11).
This split in authority is not limited to the California Courts of Appeal. For instance, in 2004 the Supreme Court of Kentucky recognized the split when it first considered the issue: “We agree with the great weight of authority cited above that denial of a defendant’s right to testify on his or her own behalf is a constitutional ‘trial-type’ error that is amenable to the harmless error analysis espoused in Chapman.” (Quarels v. Commonwealth (Ky. 2004) 142 S.W.3d 73, 82.) Similarly, the Michigan appellate court recognized “the great weight of authority that has concluded that denial of the right to testify is a ‘trial error’ and is thus subject to a harmless-error analysis.” (Solomon, supra, 220 Mich.App. at pp. 536-537; see Holscher, The Legacy of Rock v. Arkansas: Protecting Criminal Defendants’ Right to Testify in Their Own Behalf (1993) 19 New Eng. J. on Crim. & Civ. Confinement 223, 245 [application of harmless error standard is the majority rule].)
Outside of California, it appears the only courts that have adopted the minority view without being reversed are the Supreme Court of Minnesota and the federal district court in Maine. (State v. Rosillo (Minn. 1979) 281 N.W.2d 877, 879 [infraction of right to testify should not be treated as harmless error]; United States v. Butts (D.Me. 1986) 630 F.Supp. 1145, 1148.)
We join the large majority of jurisdictions and conclude that the denial of a defendant’s right to testify is a “trial-type” error rather than a “structural error” and, therefore, Chapman harmless error analysis applies. The discussion in a prior published case is sufficient to support this conclusion. (See People v. Johnson, supra, 62 Cal.App.4th at pp. 634-636.) Repeating that discussion here would serve little purpose.
B. Showing Required to Demonstrate Harmless Error
In People v. Neal (2003) 31 Cal.4th 63, the California Supreme Court stated: “The beyond-a-reasonable-doubt standard of Chapman ‘requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” (Id. at p. 86.)
In this case, the Attorney General only has argued that there was no constitutional violation. The respondent’s brief presented no argument or analysis of why the error was harmless beyond a reasonable doubt. Accordingly, the Attorney General has not satisfied his burden. The judgment must be reversed.
DISPOSITION
The judgment is reversed.