Opinion
B228629
01-09-2012
THE PEOPLE, Plaintiff and Respondent, v. EFREN SAHAGUN, Defendant and Appellant.
Eric Cioffi, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA332842)
APPEAL from an order of the Superior Court of Los Angeles County, Anne H. Egerton, Judge. Affirmed.
Eric Cioffi, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
Efrem Sahagun pled no contest to violating Health and Safety Code section 11352, subdivision (a) and subsequently was sentenced to prison after his probation was revoked. His only argument on appeal is that his waiver of counsel was invalid and therefore the court's revocation of probation and imposition of the suspended sentence must be reversed. Respondent contends appellant's waiver of counsel was knowing and intelligent and therefore valid. We conclude that appellant's waiver of counsel was valid and hence that imposition of the suspended sentence is valid.
FACTUAL AND PROCEDURAL SUMMARY
In light of the limited scope of this appeal, it is not necessary to provide details of the narcotics charge against appellant. An information filed in December 2007 alleged that appellant had unlawfully sold, offered to sell, or transported cocaine in violation of Health and Safety Code section 11352, subdivision (a). It also was alleged that appellant had suffered one prior conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a) and five prior convictions within the meaning of Penal Code section 667.5. Appellant initially pled not guilty, but in March 2008 he withdrew that plea and pled no contest to the narcotics charge and admitted the prior allegations. The court sentenced appellant to eight years in prison (five years for the violation of Health and Safety Code section 11352, subdivision (a) and three years pursuant to Health and Safety Code section 11370.2, subdivision (a)), suspended execution, and placed him on three years of formal probation. The section 667.5, subdivision (b) prior conviction allegations were stricken.
Appellant admitted violating probation in May 2008. His probation was revoked and reinstated on the original terms with the modification that he was to complete a specified substance abuse program. He admitted violating probation in August 2008 and probation was again revoked and reinstated with additional conditions. Appellant's probation was revoked yet again in October 2008. In April 2009, appellant waived a probation revocation hearing and stipulated that he was in violation of probation. Probation was reinstated and extended for an additional year.
In March 2010, the district attorney sought to revoke appellant's probation case because a new drug offense had been charged in case No. BA369240 (the new case). At the revocation hearing, appellant asked to represent himself in the new case. He had filled out the form requesting self-representation. The trial court warned him that he faced a potential sentence of eight years in prison and that his access to the law library in jail would be severely limited. After appellant insisted he wanted to represent himself on the new case, his request was granted. The court indicated it also would allow appellant to represent himself on the probation violation in the present case and set a probation violation hearing.
Appellant executed a form advisement and waiver of right to counsel on April 30, 2010. The form is not file stamped and does not have a case number on it. A handwritten notation on the face of the form states: "withdrawn 4-30-10" with an illegible initial. The minute order for that date states that appellant retained the alternate public defender's office as counsel. On May 28, 2010 the alternate defender represented appellant at the probation violation hearing, which was continued.
At the beginning of a hearing on July 8, 2010, appellant was represented by counsel on the probation violation in this case. The court noted that case No. BA369240 was pending trial and that the probation violation matter would be handled before that trial. Appellant interrupted and said: "My probation, I'm going to go pro per on that, too." The court told appellant he would have to fill out the form requesting self-representation that he had previously filled out in case No. BA369240. The court asked appellant if he understood that the probation violation hearing would be before a judge and that he faced imposition of an eight-year sentence. Appellant said he understood, but wanted to represent himself. The court warned: "You understand you're going to have a very experienced lawyer on the other side." Appellant replied: "I know." The court said: "I'll have you fill out the form and we'll excuse [appellant's attorney]." After a discussion of motions appellant was bringing in case No. B369240, the court admonished appellant that he would have to file and serve any motions. The court said: "I can't advise you. You've chosen to proceed without a lawyer. You had a very good lawyer who you just fired on your [probation violation] case and you're looking at eight years. Actually, you're looking at 21 years. [¶] I think it's very ill advised the way you're proceeding, but you have an absolute right to do that, so that's fine." Appellant replied: "Okay." On July 8, 2010, appellant executed and filed a new form advisement and waiver of right to counsel in this case. Once again he initialed each of the boxes advising him of his rights and the dangers and disadvantages of self-representation.
The probation violation hearing on the present case was held in October 2010. Appellant, in propria persona, objected to all proceedings. Probation was revoked and appellant was sentenced to eight years in state prison. Appellant was ordered to pay various fees and fines. He filed a timely appeal.
DISCUSSION
Appellant argues the trial court erred by failing to determine his competency to waive the right to counsel and failing to conduct an inquiry to determine that the waiver was knowing and intelligent.
"'A criminal defendant has a right, under the Sixth Amendment to the federal Constitution, to conduct his own defense, provided that he knowingly and intelligently waives his Sixth Amendment right to the assistance of counsel. (Faretta [v. California (1975)] 422 U.S. [806,] 835-836 [(Faretta)]; People v. Bradford (1997) 15 Cal.4th 1229, 1363.) A defendant seeking to represent himself "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]." (Faretta, supra, 422 U.S. at p. 835.) "No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation." (People v. Koontz (2002) 27 Cal.4th 1041, 1070.) Rather, "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." (Ibid.; accord, People v. Lawley (2002) 27 Cal.4th 102, 140; People v. Marshall (1997) 15 Cal.4th 1, 24.)' (People v. Blair (2005) 36 Cal.4th 686, 708.) Thus, '[a]s long as the record as a whole shows that the defendant understood the dangers of self-representation, no particular form of warning is required.' [Citations.] [¶] On appeal, we independently examine the entire record to determine whether the defendant knowingly and intelligently waived the right to counsel. (People v. Doolin (2009) 45 Cal.4th 390, 453.)" (People v. Burgener (2009) 46 Cal.4th 231, 240-241.)
Appellant argues the trial court erred in granting his request for self-representation because it did so without considering the Faretta waiver form. He also cites his substance abuse problems as a factor we should consider in reviewing the court's ruling. Appellant contends that his inability to comprehend the process was demonstrated at the July 8, 2010 hearing when he confused issues related to severance with the continuance of the trial of the new matter, case No. BA369240. At the probation revocation hearing in October 2010, appellant again appeared confused about the date for the hearing and refused to participate. He did not cross-examine witnesses or present argument. Appellant relies on the principle that we "must indulge every reasonable inference against waiver of the right to counsel. [Citation.]" (People v. Marshall, supra, 15 Cal.4th at p. 20.)
"The competence standard for waiving counsel is at least as high as the competence standard for standing trial. ([Godinez v. Moran (1993) 509 U.S. 389,] 398.) So the court does not err by allowing a defendant who is competent to stand trial to waive counsel. (Ibid.)But the court also may insist on a higher competence standard for waiving counsel. ([Indiana v.] Edwards [(2008)] 554 U.S. [164,] 174.) '[T]he Constitution permits States to insist upon representation by counsel for those competent enough to stand trial . . . but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.' (Id. at p. 178.) If a criminal defendant is incompetent to waive counsel, or the waiver is not knowing and intelligent, allowing the defendant to represent himself or herself violates the right to counsel—according to the weight of authority, the error is reversible per se. (See People v. Burgener (2009) 46 Cal.4th 231, 243-245 (Burgener)[discussing cases but leaving question open because error was not harmless]; cf. Faretta, supra, 422 U.S. at p. 836 [reversing conviction without reviewing for harmless error].)" (People v. Wrentmore (2011) 196 Cal.App.4th 921, 930.)
Here no question arose at any point about appellant's mental competence to waive counsel or to present a defense. (See People v. Butler (2009) 47 Cal.4th 814, 825 (Butler).)As in Butler, appellant persistently and unequivocally invoked his Faretta right in a timely manner. The trial court expressed no concern about his competence to make that decision nor did the prosecution. Appellant cites cases noting the impact of drug and alcohol abuse on judgment and decision making, but none of them stands for the proposition that a history of drug abuse is sufficient in itself to establish a lack of competence to waive counsel without a showing of other indicia of lack of competence. We find no basis for a conclusion that appellant was not competent to choose self-representation.
Appellant's apparent confusion about procedural issues is not a basis for denial of self-representation: "It is established that the effectiveness of a self-represented defendant's preparation is ordinarily irrelevant. Defendants untrained in the law may well provide themselves with inept representation. But Faretta gives them the right to make a thoroughly disadvantageous decision to act as their own counsel, so long as they are fully advised and cognizant of the risks and consequences of their choice. [Citations.] Those risks may include custodial limitations on the ability to prepare a defense in jail. [Citation.]" (Butler, supra, 47 Cal.4th at p. 828, fn. omitted.) The Butler court concluded that the defendant in that case had repeatedly and thoroughly been admonished and chose self-representation despite the restrictions placed on him. (Ibid.)
Appellant cites the failure of the trial court to discuss the elements of the crimes which were the basis for the probation revocation or any possible defenses with him before granting his request for self-representation. He acknowledges that the trial court informed him of the prosecution's burden of proof and possible prison sentence.
We look to the record as a whole to determine whether defendant understood the dangers of self-representation, no particular form of warning is required. (People v. Burgener, supra, 46 Cal.4th at pp. 240-241.) While the colloquy on the waiver of self- representation in this probation revocation matter was brief, the court and appellant had thoroughly discussed the relevant disadvantages and consequences of self representation at the July 8, 2010 hearing when the court granted his request for self-representation on the new narcotics charge, case No. BA369240. The same judge presided over both hearings. At the July 8th hearing, appellant repeatedly stated that he understood the consequences of his decision and the limitations on access to the jail law library. He made reference at that hearing to his motions for appointment of a toxicologist and a Pitchess motion, indicating a sophisticated level of understanding of the process. He made it clear that he wanted to represent himself on the probation revocation matter as well as the new matter. Appellant initialed each of the advisements on the four-page Faretta waiver form in this case and stated that he has a 12th-grade education.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
"The record clearly shows defendant chose self-representation with his eyes open to the risks and disadvantages it entailed, the nature and seriousness of the charges he faced, and his right to continue being represented by appointed counsel throughout trial. [Citation.]" (People v. Taylor (2009) 47 Cal.4th 850, 879, fn. omitted.) The Taylor court emphasized that an intelligent waiver does not necessarily require a defendant to do more than answer the court's questions without elaboration. (Id. at p. 879, fn. 13.)
Our examination of the entire record demonstrates that appellant was competent to choose self-representation and that he knowingly, voluntarily, and intelligently waived the right to counsel.
DISPOSITION
The order revoking probation and imposing the suspended sentence is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J. We concur:
MANELLA, J.
SUZUKAWA, J.