PEOPLE v. DANIELS (DAVID SCOTT)

Appellant’s Supplemental Brief

Cal.February 11, 2014

SUPREME COURT COPY IN THE SUPREME COURT FOR THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. DAVID SCOTT DANIELS, Defendant and Appellant. No. 8095868 (Sacramento County Sup.Ct. No. 99F 10432) SUPREME COURT FILED FEB 11 2014 APPELLANT’S SUPPLEMENTAL OPENING BRIEF Appeal from the Judgmentof the Superior Court of Frank A. McGuire Clerk Deputy the State of California for the County of Sacramento HONORABLE JAMESL. LONG MICHAEL J. HERSEK State Public Defender GARY GARCIA State Bar No. 15712 Senior Deputy State Public Defender 1111 Broadway, Suite 1000 Oakland, CA 94607 Telephone: (510) 267-3300 Attorneys for Appellant IX. TABLE OF CONTENTS Page THE TRIAL COURT ERRED WHENIT PERMITTED APPELLANT TO REPRESENT HIMSELF AT HIS CAPITAL TRIAL00eeee ene teen n eens 1 A. Introduction ........ 0. cece tte te eee enn 1 B. Because of Recognized Limits on the Faretta Decision and Eighth Amendment Requirements, the Trial Court Erred When It Granted Appellant’s Motion to Represent Himself at His Capital Trial... 0.0.0... cee eee eee ee 2 1. The Faretta Decision ........ 0.0 cece ee eee eee 2 2. Faretta Itself and Later United States Supreme Court Cases Recognize the Limits ofFaretta ...... 4 3. Pursuant to Eighth Amendment Requirements, the Right of Self-Representation Must Be Limited to Noncapital Cases 1.1... . 0. cece cece eee 7 C. Because Faretta’s Reasoning Does Not Support the Right to Self-Representation at the Penalty Phase, the Trial Court Erred When It Continued to Allow Appellant to Represent Himself There ...........- 0. eee eeee ees 10 1. The Historical Evidence Does Not Support a Right to Self-Representation at the Second Phase of a Bifurcated Capital Proceeding ..............-6. 11 2. The Structure of the Sixth Amendment Does Not Support the Conclusion Thatthe Rightto Self- Representation Applies to the Penalty Phase at a Capital Trial .. 0...eee ees 12 3. A Defendant’s Interest in “Free Choice” Recognized in the Faretta Line of Cases Is Inapplicableat the Penalty Phase of a Capital Trial ................ 13 TABLE OF CONTENTS Page D. Conclusion ...... 0. cece eeee eee e eens 15 X. THE CONVICTIONS, SPECIAL CIRCUMSTANCE FINDINGS AND DEATH VERDICT MUST BE REVERSED BECAUSE THE TRIAL COURT ERRONEOUSLY PERMITTED APPELLANT TO WAIVE COUNSELIN VIOLATION OF PENAL CODE SECTION 686.1 2.0... 0... c cece eee eens 17 A. Introduction ........ 00 cc cece eee teen eee 17 B. Because California Law Provides No Statutory or Constitutional Right to Self-Representation, Penal Code Section 686.1, Requiring Counsel in Capital Cases, May Be Implemented When Permitted by the United States Constitution ........ 0... cece eee eens 18 C. United States Supreme Court Decisions Permit California to Restrict the Sixth AmendmentRight to Self-Representation When the Exercise of That Right Compromisesthe Integrity of its Death Judgments . . 19 D. The Trial Court’s Failure to Deny Appellant’s Faretta Motion, or at Least to Revoke His Pro Se Status when Appellant Rested His Case at the Guilt Phase Without Questioning Any of the Prosecution Witnesses, Making Any Objections, or Presenting Any Evidence or Argument on His Behalf ..... 00.0... ccceeenen 21 E. This Court Should Reevaluate its View That it Cannot Limit the Right of Self-Representation at a Capital Trial . . 23 F, Failure to Enforce Penal Code Section 686.1 Was Error and Denial of Counsel Requires Reversal .............. 25 CONCLUSION 2.0... ccc ccceet teen nen enne 27 CERTIFICATE OF COUNSEL ... 0... 0 ccc cee eens 28 il TABLE OF AUTHORITIES Page(s) FEDERAL CASES Beck v. Alabama (1980) 447 U.S. 625 eecesessesssessecssesnesnentsnessesnscnssessnenssnseessansasreeanensenconsanessteatassenceeseeeseneny 8 Faretta v. California (1975) 422 U.S. 806 w.cesessecseseseesesseneeeneerensentesenenssneessenensenseneneensnesatencocanaaienseneenenees passim Furman v. Georgia (1972) 408 U.S. 238 v.csssessesseseesseeneeseensenssnsensseensenesveenesesnsntsssnesnseentssnesensensenaets 7,9, 11, 12 Gilmore v. Taylor (1993) 508 U.S. 333 weesesssesseessesseeneesessesstenessensatsseensennsanencensneenscnseseesesssraseressnsenenesnnssseens 2 Gregg v. Georgia (1976) 428 U.S. 153 .scessessescsssesseseseeseensenestensssenesssneasenesseneasnenncnsnnensersannentastens 8, 10, 12, 25 Illinois v. Allen (1990) 397 U.S. 337 ceessesssssssesseesseeseenesseenesnsensatsssensaneneanecsssnsarensnenneasenssacsnseseseaseessenengs 20, 21 Indiana v. Edwards (2008) 554 U.S. 164 w.sesssssssessesseeeneetenesseaestsseseeeneessensaseesnsnsoresssseveasessansnscaneneneegaets passim Lockett v. Ohio (1978) 438 U.S. 586 o..ecsscsesesseeseeseenseeensereerenesneeeeseanessssensneaceneesasansnressansansesranees 10, 14, 24 Martinez v. Court ofAppeal ofCal., Fourth Appellate District (2000) 528 U.S. 152 v.eccessesessessssserceneesernssensssssesnsesesnssseenenserssenesesessssesensensensnnsnegagys passim McKaskle v. Wiggins (1984) 465 U.S. 168 w..ccceccseesecteceeneeessessessessesesssssnsenssennencaeeesssaranesenssasenssnnsnsnaeges passim Oregon v,. Guzek (2006) 546 U.S. S17 cesseessessssssecssesnesneesesneeneenesneessssseseneeneenscnsenenerseeneeaessssaneeseasegenanagsaas 13 ill TABLE OF AUTHORITIES Page(s) Sell v. United States (2003) 539 U.S. 166 ....ssesssssessecssssseesecseeneesssnssassssessennanenseansnnsencenscucanccnsanssnsisssrensasensentestens 7 Street v. New York (1969) 394 U.S. 576 vcessecssssessesseescseesecneesensensersssersssseesseenernesssneeacassacnerasonsenseaseseenensenns 2,18 Strickland v. Washington (1984) 466 U.S. 668 o...sesssscscesstesescsesseecesseeseeseesssnmesssssesnenesneaceanenseasencsssusrenscaseesessnsates 8, 10 Trop v. Dulles (1958) 356 U.S. 86 ceeeceesssscsssseeseeseseesesneeescensnseneasssescsvessesseessencaseasnsansonssiessssseaseensenenses 9, 14 Tuilaepa v. California (1994) 512 U.S. 967 weeesssesescssesessnssnestsntensenessesnesssesesesseaneeassasenceacanensconscenseaneessensnaeneenen 18 United States v. Dougherty (D.C. Cir, 1972) 473 F.2d 1113 ccescessessessecsesresnsssssnssnessenssnsenesnncesensenssssasisnssensenseneensenseananas 5 Woodson v. North Carolina (1976) 428 U.S, 280 oossesssssssseessesseeessssseeesenesesscstensesseassneseenenesaeencnnenecarsnseseesrsseseneneanssasageas 15 STATE CASES Agnew y. State Bd. ofEqualization (1999) 21 Cal.4th 310 w.ccecscsssesssecseesseeenecnsesrssseesssenssseessensssnsencenssensessnisessesansenenenaeentens 23 People v. Blair (2005) 36 Cal.4th 686 ...cceccssssecsseenessseesessesessnsssecsessenneessscneeniccnsersentesncanneannnsnsnnennereas 13-14 People v. Bloom (1989) 48 Cal.3d 1194 cscecccsessecsessessesseressensesecsserserenssessesnncansncorsacsntsassarenssneransasanees 22, 23 People v. Bradford (1997) 15 Cal.4th 1229 vececscecsecsecsesseeseeseesesssessereesesssenssncenenecancenscssenscessesecnessnsesenanaetaas 24 iv _ TABLE OF AUTHORITIES Page(s) People v. Bradford (2007) 154 Cal.App.4th 1390 ...seccececsessssessssssersessenesnescnseatscntsssssensersssensecaenecnensenees 21 People v. Butler (2009) 47 Cal.4th 814 vcccceseessesereeeeressenrseesssnesseenssnsctsnnsarsatenneseneeseeseseeneas 2, 20, 21, 22 People v. Carson (2005) 35 Cal.4th 1 oceecssssseesseeseeseseeseenteseencensseesesnesssssssnssnssneennsssesnceusenesenseneensnnseensnagey 21 People v. Carter (1967) 66 Cal.2d 666 ..c.ssecsessecsseeseeseersessrersesseenesssessnsrnesnacenseateesensssnsecessessnenaenannees 25, 26 People v. Clark (1990) 50 Cal.3d 583. ...sssssessssssssseceecsrernessseesssesnsessennernsenneennecsncsssvennssescnsnensanananencnnnestseg 23 People v. Clark (1992) 3 Cal.4th 41 iescssecssecssesseessenesseessessessssaressenssnaceeennennsssssesncsnsenvecsssnssennenasenscanetges 22 People v. Dent . (2003) 30 Cal.4th 213 ..esssecsecssessesesneeseessseessssesesessnesnnccnssenrcesesaesesanecanennennennnscensnss 19 People v. Hartsch (2010) 49 Cal.4th 472 .sesssccsosecssecseesecensesessssensesnennennsennccntensensaensecssesesanenennegseenasegssee 13 People v. Johnson (2012) 53 Cal4th 519 v.cseccscccssecsereecnsssnessnessssessesseenecnescntecnecsacesssenssasecsansneneanneeneennegssee 19 People v. Joseph (1983) 34 Cal.3d 936 w.ccssccssecssesssescnseserseesseesecsnseseesessnseenscanieessssssenssscsssennssnncqnsnnsstestsssees 1 People v. Koontz (2002) 27 Cal.4th 1041 eesssescsecssessessnseensesseesssessesneessnnsennseenecansesssesnscannnssssensenaenenenetsen 24 People v. Lightsey (2012) 54 Cal4th 668 o..cscsscsssssssecceecnsersssssecseesssennernsrensernnecsssessevecsnsrenssaceanennatenseennetens 17 TABLE OF AUTHORITIES Page(s) People v. Robles (1970) 2 Cal.3d 205 vcssssessesssssssceseesneessensessenesssesseensensessnenerssenseassnsensaneensnssenssnenensnatengey 25 People v. Sharp (1972) 7 Cal.3d 448 ciccessesssssseesssssseerecrensssenerceverssnessesneensenesesersensateetscenecnenneessenanias 18, 19 People v. Taylor (2009) 47 Cal.4th 850 w.cecsessssseseeseeesesnrsssssssssnsensnsasessseseascarsrsssesneresseasansnnsensenseaaensens passim CONSTITUTIONS U.S. Const., Amends. © iceeccessssccessscssccssscnesesssevenececseesseeenserasenerasteeeeens passim B ecseeccesssssscecsceessesasseeeaeeecssssseesseesesussessasenstaeseesy passim 14 veicccccsecesecsssesesceccsseeeceneeseesessnessaressessssrssesnnesaeeraeseaes 15 Cal. Const., art. I § 13. cecccccccsesseececcececesesercceseceevessesensesenstsssenesserserensensenenens 18 STATUTES Pen. Code, § O86.1 vieesecccesessscsncccerecsessnssetesesesseseeerererseeneenses passim TEXT AND OTHER AUTHORITIES Ballot Pamp., Proposed Amends, to Cal. Const. with arguments to voters, Primary Elec. (June 6, 1972) .csccssesesesesssesesseeseneseesentensatenessaeessrisensesenssenenennenes 19 Douglass, Confronting Death: Sixth Amendment Rights at Capital Sentencing, (2005) 105 Colum. L. Rev. 1967 ..esscsesssesessessesssessssnsetententereneerssnesnennennseereensensnas 11. vi IN THE SUPREME COURT FORTHESTATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, No. $095868 Plaintiff and Respondent, V. (Sacramento County Sup.Ct. DAVID SCOTT DANIELS, No. 99F 10432) Defendant and Appellant. APPELLANT’S SUPPLEMENTAL OPENING BRIEF IX. THE TRIAL COURT ERRED WHENIT PERMITTED APPELLANT TO REPRESENT HIMSELFAT HIS CAPITAL TRIAL A. Introduction In Faretta v. California (1975) 422 U.S. 806 (Faretta), the defendant wasdenied theright to represent himselfat his trial on charges of grand theft. (/d. at pp. 807-810.)' The United States Supreme Court held that underthe circumstances, forcing Faretta to accept counsel againsthis will deprived him of an implied Sixth Amendmentright to conduct his own defense. (/d. at pp. 819, 836.) This Court has extended Faretta, holding that the defendant in a capital case hasthe right of self-representation at both the guilt and penalty phasesofa capitaltrial. (People v. Taylor (2009) 47 Cal.4th 850, 865; People v. Joseph (1983) 34 Cal.3d 936, 945.) Based on this Court’s precedent, the trial court granted appellant’s request to represent himself. (1 CT 6, 11.) Appellant respectfully requests the Court to reconsider and disapproveits extension of Faretta to capital cases. Faretta itself and subsequent United States Supreme Court cases recognize that the right of self-representation mustyield whencertain otherinterests are at stake,e.g. ' Forthe sakeofclarity, the instant argument is numbered Argument IX and follows ArgumentsI through VIII, which were raised in Appellant’s OpeningBrief. In addition,the record will be cited here in the same manneras in Appellant’s Opening Brief: “CT,” Clerk’s Transcript; “ACT,” Augmented Clerk’s Transcript; “RTL,” Reporter’s Transcript in the Lower Court; “RTS,” Reporter’s Transcript in the Superior Court. appellant refers to the record on appeal in the same mannerasin his opening brief. (See AOB,fn. 2.) the basic constitutional law objective of providinga fair trial. In particular, the Eighth Amendmentrequires “a greater degree of accuracy and factfinding than would betrue in a noncapital case” (Gilmore v. Taylor (1993) 508 U.S. 333, 342), and proceduresthat do notcreate a substantial risk that a death sentencewill be imposedin an arbitrary and capricious way. For this reason, the Sixth Amendment’s protection ofthe assistance of counsel andits guaranteeofa fair trial, as well as the Due Process Clause of the Fourteenth Amendment, should have prevailed over appellant’s wish to represent himselfat his capitaltrial. Additionally, Faretta’s three-part rationale is inapplicable to a bifurcated penalty phasetrial. Thetrial court therefore erred whenit failed to revoke appellant’s pro sestatus at the penalty phase. Appellant acknowledgesthat this Court has continuedto hold that the “rule announced by the Faretta majority . . . remainsthe law of the land.” (People v. Butler (2009) 47 Cal.4th 814, 824.) To the extent that this Court finds that appellant’s claim is foreclosed by Faretta, hestill must raise it here in order to preserve his claim for review by the high court. (See Street v. New York (1969) 394 U.S. 576, 582 [constitutional question must first be presented and ruled uponby highest state court before United States Supreme Court has jurisdiction to rule uponit].) B. Because of Recognized Limits on the Faretta Decision and Eighth Amendment Requirements, the Trial Court Erred WhenIt Granted Appellant’s Motion to Represent Himself at His Capital Trial 1. The Faretta Decision In Faretta, supra, 422 U.S.at pp. 807-808, the defendant, accused of grand theft, requested that he be allowedto represent himself. After holding a hearing on the defendant’s ability to conduct his own defense, whichraised questions as to his knowledgeof such matters as the hearsay rule, the trial court refused the defendant’s request and appointed counselto represent him. (/d. at pp. 808-810.) On appeal from his conviction, the state appellate court foundnoerror, noting that the defendanthad nostate or federal constitutional right to proceed pro se. (/d. at pp. 811-812.) A divided Supreme Court, relying on the Sixth Amendment,rejected that contention and held that by “forcing Faretta, under these circumstances, to accept [a lawyer] against his will . . . the California courts deprived him of his constitutional right to conduct his own defense.” (/d.at p. 836; italics added.) In reaching this conclusion, the Court undertook a three-part analysis. First, the Court looked at the historical record on the rightof self- representation. (Faretta, supra, 422 U.S.at pp. 812-817.) It concludedthat its own past recognitionofthe right of self-representation, the federal-court authority holding the right to be of constitutional dimension,andstate constitutions “pointing to the right’s fundamental nature” supported the principle that forcing a lawyer on a defendantis contrary to “his basic right to defend himself if he truly wants to do so.” (Jd.at p. 817.) Next, the Court foundthat the right of self-representation was also supported by the structure of the Sixth Amendmentand the English and colonial jurisprudence that preceded it. (Faretta, supra, 422 U.S. atp. 818.) Notably, this section of the Court’s analysis frequently invokesthe role of the Sixth Amendmentin the right to make a defense. The language ofthe Sixth Amendmentitselflists the rights basic to our adversary system of justice, i.e., the rights to notice, confrontation, cross-examination and compulsory process. (Jbid.) The Amendmentthus “constitutionalizes the 3 right in an adversary criminal trial to make a defense as we know it.” (bid.; italics added.) The Court found that the rightof self-representation was necessarily implied by the Sixth Amendment. (Faretta, supra, 422 U.S.at p. 819.) This is because the Amendmentgivesrights directly to the accused, “who suffers the consequencesif the defensefails.” (/d. at pp. 819-820.) The Court concludedthat this reading of the Sixth Amendmentwasreinforced by the Amendment’s roots in the legal history of England and the American Colonies. (/d. at pp. 821-832.) Finally, the Court examinedtheright ofself-representation in light of the “basic thesis” ofits prior cases on the right to counsel, whichis that “the help of a lawyeris essential to assure the defendanta fair trial.” (Faretta, supra, 422 U.S.at pp. 832-833.) The Court recognizedthat in most cases, defendants can “better defend” with counsel’s guidance. (/d. at p. 834.) Nevertheless, because the defendant will bear the consequencesif he is convicted, the right to defend is personal. (/bid.) In this respect, the Court invoked the importance in the law of “respect for the individual.” ([bid.) 2. Faretta Itself and Later United States Supreme Court Cases Recognize the Limits of Faretta Although the Supreme Court’s rationale in Faretta, whichrelied on historical and textual analyses, was broad, the Court’s ultimate conclusion wasthat “under the circumstances” forcing counsel upon the defendant violated his Sixth Amendmentright to conduct his own defense. (Faretta, supra, 422 U.S.at p. 836.) The circumstancesofthe case, of course, included the fact that Faretta was charged with grandtheft, a noncapital offense. (/d. at p. 807.) Faretta recognizedotherlimits to the right of self-representation as well. It noted that a judge can terminate self-representation, ¢.g., when a defendant “deliberately engages in serious and obstructionist misconduct.” (Faretta, supra, 422 U.S.at p. 834, fn. 46.) A judge can appoint standby counsel, even over a defendant’s objection, to be available to represent the accused in the event that termination of the defendant’s self-representation is necessary. (/bid.) United States Supreme Court cases after Faretta continued to recognize its limits. In McKaskle v. Wiggins (1984) 465 U.S. 168 (McKaskle), the Court built on its commentsin Faretta regarding standby counsel. It held that a pro se defendant’s Sixth Amendmentright to self-representation, as expressed in Faretta, wasnotviolated by standby counsel’s unsolicited participation in the defense, even over the defendant’s continuing objections. (/d. at pp. 176-177, 180.) The Court based this on “both Faretta’s logic andits citation of the Dougherty case [which] indicate that no absolute bar on standby counsel’s unsolicited participation is appropriate or was intended.” (/d.at p. 176, citing Faretta, supra, 422 US. at p. 834,fn. 46; see also United States v. Dougherty (D.C. Cir. 1972) 473 F.2d 1113, 1124-1126 [explainingutility of the role of standby counsel].) The Court also delineated the role that standby counsel couldplay. (McKaskle, supra, 465 U.S. at pp. 183-184.) In Martinez v. Court ofAppeal ofCal., Fourth Appellate District (2000) 528 U.S. 152, 163 (Martinez), the Supreme Court held that there is no right of self-representation on appeal. In so holding, the Court noted that Faretta had recognized thatthe rightto self-representation is not absolute. (Id. at p. 161.) “Evenat thetrial level... the government’s interest in ensuring the integrity and efficiencyofthe trial at times outweighs the 5 defendant’s interest in acting as his own lawyer.” (/d. at p. 162.) The Court found most of Faretta’s three rationales, including the historical evidence, inapplicable to appellate proceedings. (Jd. at pp. 156-158.) Faretta’s reliance on the structure of the Sixth Amendmentwasalsoirrelevant. (Jd. at p. 159.) The Amendmentlists rights available fortrial; it does not include anyright to appeal. (dd. at pp. 159-160.) A defendant’s interest in autonomy, groundedin the Sixth Amendment,is also inapplicable at the appealstage. (/d. at p. 161.) The Court concludedthat, in the appellate context, the balance between the “competing interests”in self- representation versus the government’s interest in ensuring the integrity and efficiency ofa trial tipped in favor of the State. (/d. at p. 162.) Most recently, in Indiana v. Edwards (2008) 554 U.S. 164, after discussing the various limitations on theright to self-representation,the Court held that the right to self-representation was not infringed when the trial court refused to allow Edwards, a mentally-ill defendant, to represent himselfat trial. (/d. at p. 174.) The Court recognizedthat, before permitting a defendantto represent himselfat trial, the states may impose requirements beyond the mere capacity to waive the right to counsel. (See id. at p. 178.) Moreover, where self-representation “undercuts the most basic of the Constitution’s criminal law objectives, providing a fairtrial,” the government’s interest in preserving the latter outweighs a defendant’s interest in acting as his own lawyer. (/d. at pp. 176-177.) Further, the courts must act to preserve constitutional processes such asa fairtrial: As Justice Brennan putit, “[t]he Constitution would protect noneofusif it prevented the courts from acting to preserve the very processesthat the Constitution itself prescribes.” Allen, 397 U.S., at 350[] (concurring opinion). See Martinez, 528 U.S., at 162 [] (‘Evenatthetrial level. . . the government’s interest in ensuring the integrity and efficiency ofthe trial at times outweighs the defendant’s interest in acting as his own lawyer”). See also Sell v. United States, 539 U.S. 166, 180 (2003) (“[T]he Government has a concomitant, constitutionally essential interest in assuring that the defendant’s trial is a fair one”). (Indiana v. Edwards, supra, 554 U.S.at pp. 176-177; parallel citations omitted.) Thus, the Supreme Court has limited Faretta in circumstances where its reasoning is inapplicable, where the Sixth Amendmenthasto yield to | other interests or constitutional rights, and/or where the Sixth Amendment itself does not apply. The primacy of the Eighth Amendmentin capital cases must be viewedin light of these limitations. 3. Pursuant to Eighth Amendment Requirements, the Right of Self-Representation Must Be Limited to Noncapital Cases As described above, the reasoning in Faretta is based upon analysis of the Sixth Amendment, andthe reach ofFaretta is limited by bothits factsandits reasoning. Faretta did not consider the circumstancesof a capitaltrial or the Eighth Amendment. This is not surprising, given that in 1975, when the opinion wasissued, capital punishment in the United States had groundto a halt following the Supreme Court’s decision in Furmanv. Georgia (1972) 408 U.S. 238 (Furman). Furman invalidated state statutes under whichjuries exercised unrestrained discretion to impose capital punishment. (Jd. at pp. 239, 256-257 (conc. opn. of Douglas,J.), 312-313 (conc. opn. of White, J.).) Following Furman andafter the Faretta opinion in 1975, the Court further developedits capital Eighth Amendmentjurisprudence. The Court announced that under the Eighth Amendment, the death penalty cannot be 7 imposed under proceduresthat create a “substantial risk”thatit will be imposedin an “arbitrary and capricious way.” (Gregg v. Georgia (1976) 428 U.S. 153, 188.) In Beck v. Alabama (1980) 447 U.S. 625, 638, the Court held that a prohibition against giving a lesser included offense instruction in a capital case was unconstitutional because it diminished the reliability of a guilt determination. And in Strickland v. Washington (1984) 466 U.S. 668, 704, the Court observed that “we have consistently required that capital proceedings be policed at all stages by an especially vigilant concern for proceduralfairness and the accuracy offactfinding.” Examining Faretta’s reasoning in light of Eighth Amendment requirements demonstratesthatthe right of self-representation must give way at a capitaltrial, where procedures must guard against diminished reliability at the guilt phase (Beck v. Alabama, supra, 447 U.S.at p. 638), and the imposition of the death penalty in an arbitrary and capricious way (Gregg v. Georgia, supra, 428 U.S. at p. 188). This is because, as Faretta recognized, the Sixth Amendmentright to counselis one of the constitutional proceduresthatis essential to assure the defendanta fairtrial. (Faretta, supra, 422 U.S.at pp. 832-833.) In Strickland v. Washington, supra, 466 U.S.at p. 685, a capital case, the Court described the right to counsel as playing “‘a crucial role in the adversarial system embodied in the Sixth Amendment, since accessto counsel’s skill and knowledge is necessary to accord defendantsthe ‘ample opportunity to meet the case of the prosecution’ to which theyare entitled.” Competent defense counsel are expected to provide the skill and knowledge that will render the trial a reliable adversarial process. (/d. at p. 688.) Whensuch counselis lacking, the result of a proceeding can be rendered unreliable. (/d. at p. 694.) The Faretta opinion acknowledged that most defendantswill receive a better defense with counsel’s guidance than by their own unskilled efforts. (Faretta, supra, 422 U.S.at p. 834; see also Martinez, supra, 528 U.S.at p. 161 [even where counsel’s performanceis ineffective, it is reasonable to assumethat it is more effective than what an unskilled appellant could provide for himself].) The opinion recognized thatthe rightofself- representation “seemsto cut against the grain of this Court’s decisions holding that the Constitution requires that no accused can be convicted and imprisoned unless he has been accordedthe right to the assistance of counsel.” (Faretta, supra, 422 U.S.at p. 832.) For this reason,a strong argument could be madethat the whole thrust of those decisions “must inevitably lead to the conclusion that a State may constitutionally impose a lawyer upon even an unwilling defendant.” (/d. at p. 833.) The opinion summarily rejected that argument, however, because the defendant, and not his lawyeror the State, bears the consequences of a conviction, so the defendant mustbe free to personally decide whetherto utilize counsel for his defense. (/d. at p. 834.) Ultimately, then, Faretta traded the essential protections afforded bythe right to counsel for a defendant’s interest in “free choice.” (/d. at pp. 815, 834.) In capital cases, however, there are interests at stake other than those personal to a defendant. Inherentin the Eighth Amendmentprohibition against cruel and unusual punishmentis the principle that the State must not arbitrarily inflict a severe punishment. (Furman v. Georgia, supra, 408 U.S. at p. 274 (conc. opn. of Brennan, J.).) This is done by determining whether a particular law or practice involving the death penalty meets or violates “the evolving standards of decency that mark the progressof a maturing society.” (Trop v. Dulles (1958) 356 U.S. 86, 101.) These 9 standards are decided by maintaining a link between contemporary community values and the penal system. (Jbid.) Accordingly, the Eighth Amendment demandsthatsubstantive and procedural safeguardsbein place to ensure that the trier of fact can make the requisite individualized sentencing determination. Theassistance of counsel is one ofthose procedural safeguards, as the role of counselis to renderatrial reliable. (Strickland v. Washington, supra, 466 U.S.atpp. 688, 694.) Allowing a capital defendant to forego representation at his capital trial simply creates too muchofa risk that any resulting conviction will lack sufficient indicia ofreliability or that a death judgmentofwill be imposedin an “arbitrary and capricious manner” (Gregg v. Georgia, supra, 428 U.S. at p. 188), and hence be unreliable. Because the death penalty must be imposed in accord with the Eighth Amendment(see, e.g., Lockett v. Ohio (1978) 438 U.S. 586, 599), and the right to self-representation must bend in favor ofthe state’s interest in the integrity of even a noncapital trial (Martinez, supra, 528 U.S.at p. 162), the former takes precedenceat a capitaltrial. For this reason,thetrial court erred whenit permitted appellant to represent himself at his capitaltrial. C. Because Faretta’s Reasoning Does Not Support the Right _to Self-Representation at the Penalty Phase, the Trial Court Erred When It Continued to Allow Appellant to Represent Himself There As appellant argues above, consistent with the recognized limits of the Faretta decision, the procedural protections afforded by the Sixth Amendmentright to counsel cannot be waived in a capitaltrial, where “proceedings [must] be policed at all stages by an especially vigilant concern for procedural fairness and for the accuracy of factfinding.” (Strickland v. Washington, supra, 466 U.S. at p. 704.) This is especially 10 true at the penalty phaseofa capital trial, where the three-part rationale of Faretta does not apply at all. For this reason, even if this Court rejects appellant’s argumentthat Faretta applies to the entire capitaltrial, it must acknowledgethatit does not apply at the penalty phase, reverse the death sentence and remandfor a penalty phasetrial where appellant is represented by counsel. 1. The Historical Evidence Does Not Support a Right to Self-Representation at the Second Phaseof a Bifurcated Capital Proceeding After setting forth the relevant English andcolonial history, the Faretta court concludedthat the historical record supported the right to self-representation at trial. (Faretta, supra, 422 U.S. at pp. 812-817.) In contrast, looking to the samehistorical record, the Martinez Court concluded that, because there was noright to appealat the timeofthe Nation’s founding, the right to self-representation did not apply to an appellant. (Martinez, supra, 528 U.S. at p. 159.) Similarly, one cannot concludethat the historical record speaks in favor of finding a right to self-representation for defendants during the penalty phase of a capitaltrial. Unified capital trials were the norm when the Sixth Amendment was created; the question of guilt and the question of death both were decided in a single jury verdictat the end of a single proceeding. (Douglass, Confronting Death: Sixth Amendment Rights at Capital Sentencing (2005) 105 Colum. L. Rev. 1967, 1972-1973, 2011.) Bifurcation cameto capital caseslater, largely in response to the United States Supreme Court’s Eighth Amendmentdecisions in the mid-1970s. (/bid.) Thus, four years after Furman v. Georgia, supra, 408 U.S. 238, the Supreme Court endorsed Georgia’s bifurcated capital trial scheme, in which 1] a “defendant is accorded substantial latitude as to the types of evidence that he may introduce”at the penalty stage. (Gregg v. Georgia, supra, 428 U.S. at p. 164 (joint opn. of Stewart, Powell and Stevens, JJ.).) The Court recognizedthat “accurate sentencing information” about “the character and record”of an individual offender, which “is an indispensable prerequisite to a reasoned determination” on punishment, often may beirrelevant or extremely prejudicial to a decision on guilt. (/d. at pp. 190, 206.) For that reason, the Court stated that the concerns of Furman are “best met by a system that provides for a bifurcated proceeding.” (Gregg v. Georgia, supra, 428 U.S.at p. 195.) At the timeof the passage of the Sixth Amendment, the Framers were not contemplatingits application at the penalty phase ofa bifurcated proceeding. Accordingly, the historical record does not speak in favor of applying Faretta to the penalty phaseofa capitaltrial. 2. The Structure of the Sixth Amendment Does Not Support the Conclusion That the Right to Self-Representation Applies to the Penalty Phase at a Capital Trial Asdescribed above, in Faretta, the Court rootedits holding in the text and structure of the Sixth Amendment, findingthat it implied the right to defend oneself personally. (Faretta, supra, 422 U.S.at pp. 819-820.) In Martinez, supra, 528 U.S.at p. 160, the Court found support forits limitation on Faretta to the trial stage in the structure ofthe Sixth Amendment,a structure in which rights are “presented strictly as rights that are available in preparation fortrial andat thetrial itself.” Similarly, in McKaskle, the Court made express what had been implied in Faretta: “(T]he defendant’s right to proceedprose exists in the larger contextofthe criminaltrial designed to determine whetheror not a defendantis guilty of 12 the offense with which heis charged.” (McKaskle, supra, 465 U.S.at pp. 177-178,fn. 8.) In contrast, the issue at the penalty phase is whether the person convicted is uniquely qualified to receive society’s ultimate punishment, not whether one has a defenseto the crime charged. Indeed, “mak{ing] a defense”is so entirely absent at the penalty phase that a convicted defendant whohasreachedthe penalty phaseis not entitled to a “lingering doubt” instruction as to guilt or innocence. (Oregon v. Guzek (2006) 546 U.S. 517, 523-527; People v. Hartsch (2010) 49 Cal.4th 472, 511-513 [no lingering doubtinstruction required by either federal or state Constitution].) As a convicted defendantat the penalty phase is no longer making a defense to an accusation,the structure and languageof the Sixth Amendment simply does not support a findingthat the right to self-representation applies at the penalty phase. 3. A Defendant’s Interest in “Free Choice” Recognized in the Faretta Line of CasesIs Inapplicable at the Penalty Phase of a Capital Trial In People v. Taylor, supra, 47 Cal.4th 850,this Court stated that “the autonomy interest motivating the decision in Faretta — the principle that for the state to “force a lawyer on a defendant” would impinge on “‘that respect for the individual which is the lifeblood of the law’”(Faretta, supra, 422 U.S.at p. 834) — applies at a capital penalty trial as well as in a trial of guilt. (People v. Taylor, supra, 47 Cal.4th at p. 865.) Appellant respectfully disagrees. The words “autonomy”and “dignity” are used broadly in cases concerningthe application ofFaretta. (See, e.g., Indiana v. Edwards, supra, 554 U.S.at p. 176, citing McKaskle, supra, 465 U.S.at pp. 176-177; Martinez, supra, 528 U.S.at pp. 160-161; McKaskle, supra, 465 U.S. at pp. 176-177; People v. Blair (2005) 36 13 Cal.4th 686, 738.) While these concepts have an innate appeal, their application at the penalty phase cannot be assumedfor several reasons. First, neither word appears in the majority opinion in Faretta with respect to an accused;rather, the case refers to “free choice.” (Faretta, supra, 422 U.S.at pp. 815, 834.) As demonstrated ante, the “free choice” recognized in Faretta applies to the right to defend oneselfin trialat which guilt of the charged offense is the issue. (McKaskle, supra, 465 U.S. at pp. 177-178, fn.8.) Second, and more importantly, the decreased autonomyinterest following conviction (Martinez, supra, 528 U.S.at pp. 159-161, 163) coincides with the heightened interest in dignity crucial to the Eighth Amendment. “The basic concept underlying the Eighth Amendmentis nothingless than the dignity of man.” (Trop v. Dulles, supra, 356 U.S.atp. 100.) This is because “[w]hile the State has the powerto punish,the Amendmentstands to assure that this power be exercised withinthelimits of civilized standards.” (/bid.) The preservation of dignity comesin capital cases from systems that promotereliability by insisting that each capital defendantbe treated and considered as an individual. (See, e.g., Lockett v. Ohio, supra, 438 U.S. at pp. 602-605.) Thus,a state’s power to punish is restricted and must comport with the Eighth Amendment. Therhetoric of “autonomy”is therefore irrelevant at the penalty phase ofa capitaltrial. Because Faretta’s reasoning provides no support for an affirmative constitutional right of self-representation at the penalty phase ofa capital trial, the trial court erred whenit permitted appellant to represent himself at the punishment phase below. The death verdict musttherefore be reversed. 14 D. Conclusion As demonstrated above, neither the circumstances nor reasoning of Faretta provides a basis for extending the right of self-representation to a capitaltrial. The circumstances of appellant’s trial in particular demanded that the Sixth Amendmentright to counsel and Eighth Amendment protection against cruel and unusual punishment take precedence over appellant’s wish to represent himself. Faretta rights exist in the context of an adversarial determination of guilt. (McKaskle, supra, 465 U.S.at pp. 177-178,fn. 8.) The Court’s conclusion in Faretta extended only to a defendant’s constitutional right to conduct his own defense. (Martinez, supra, 528 U.S.at p. 154.) In this case, knowingthat appellant wanted to plead guilty to capital murder and declined the appointment of advisory counselor an investigator (1 CT 180; 1 RTS 12, 41, 47-48), the trial court erred whenit granted appellant’s request for self-representation. At a minimum,the trial court should have revoked appellant’s pro per status at the conclusionofthe court trial on guilt, when it wasclear that no adversarial process had occurred: appellant had asked no questions, made no objections, and presented no evidence or argumenton his behalf. Becauseofthe need to protect the government’s interest in fairness and integrity at appellant’s trial (Martinez, supra, 528 U.S.at p. 162), and heightenedreliability necessary at a capital proceeding (see,e.g., Woodson vy. North Carolina (1976) 428 U.S. 280, 305), the trial court should never have grantedproperstatus to appellant. Under the circumstances which existed at appellant’s trial, the failure ofthe trial court to provide counsel at trial violated the Sixth, Eighth and Fourteenth Amendments, and the convictions, special circumstance findings and death sentence must be 15 reversed. // // 16 X. THE CONVICTIONS, SPECIAL CIRCUMSTANCE FINDINGS AND DEATH VERDICT MUST BE REVERSED BECAUSE THE TRIAL COURT ERRONEOUSLY PERMITTED APPELLANT TO WAIVE COUNSEL IN VIOLATION OF PENAL CODE SECTION686.1 A. Introduction Penal Codesection 686.1 provides that “the defendantin a capital case shall be represented in court by counselatall stages of the preliminary andtrial proceedings.” As described below,key to the enactmentof section 686.1 in 1972 was recognition by the Legislature and voters of the importance ofprovidingfair trials and an adequate defenseto criminal defendants in capital cases. Just a few yearslater, the United States Supreme Court issuedits opinion in Faretta v. California (1975) 422 U.S. 806 (Faretta). As appellant argued in ArgumentIX,ante, the Faretta decisionis limited and does not cover capital cases. Nevertheless, over time, the courts of this state have interpreted the right established by Faretta as “absolute” (People . v. Taylor (2009) 47 Cal.4th 850, 872 (Taylor)), and ignoredthelegislative mandate of section 686.1. Morerecently, this Court has recognized that the “absolutist view of the right to self-representation” has beenrejected. (People v. Lightsey (2012) 54 Cal.4th 668, 694-695, citing Indiana v. Edwards (2008) 554 U.S. 164, 169, 178.) For this reason and the reasons demonstrated in Argument LX, ante, California should now give effect to section 686.1. Vindication of the State’s policy requires counsel in the greatest numberofcapital cases that federal law allows. This is especially so as to the special circumstances 17 and penalty phases, due to the primacy of the Eighth Amendmentat these proceedings. (Tuilaepa v. California (1994) 512 U.S. 967, 971-972 {death- eligibility and death-worthiness stages of capital proceedings must meet Eighth Amendmentrequirements].) To the extent that this Court finds that appellant’s claim is foreclosed by its opinion in Taylor, supra, 47 Cal.4th at pp. 865-866, or Faretta, he still must raise it here in orderto preserve his claim for review by the high court. (See Street v. New York (1969) 394 U.S. 576, 582 [constitutional question mustfirst be presented andruled uponby highest state court before United States Supreme Court has jurisdiction to rule uponit].) B. Because California Law Provides No Statutory or Constitutional Right to Self-Representation, Penal Code Section 686.1, Requiring Counsel in Capital Cases, May Be Implemented When Permitted by the United States Constitution Section 686.1, requiring that “a defendantin a capital case shall be represented in court by counselatall stages of the preliminary andtrial proceedings,” was adopted in 1972 pursuantto a constitutional amendment. Prior to 1972,article 1, section 13, of the California Constitution guaranteed the right of a criminal defendantto represent himself. (See generally People v. Sharp (1972) 7 Cal.3d 448, 463-464 [Appendix] (Sharp).) In order to enactlegislation requiring counsel in certain cases, the Constitution had to be amended. (/bid.) The Legislature passed such a constitutional amendmentin 1971, deleting the right to self-representation from article 1, section 13. That constitutional amendment wasthen put to the voters in 1972 as Proposition 3. (Jbid.) The Voter Pamphlet accompanying that amendmentexplained that the amendmentwas“necessary in order to ensure the defendantis fairly 18 advised ofhis rights duringthetrial,” and to ensure “afair trialfor every defendant.” (Ballot Pamp., Proposed Amends,to Cal. Const. with arguments to voters, Primary Elec. (June 6, 1972) p. 8; italics added.) The ballot pamphlet further explainedthat“[t]oday’s complex legal system leaves no room for the person unschooled in law and criminal procedure. Studies show that the person whorepresents himself in a serious criminal case is unable to defend himselfadequately.” (Ibid.; italics added.) Thus, concern regardingthe rightto a fair trial and an adequate defense were animating forces behind the passage of Proposition 3 and, hence, section 686.1. The statute represents “the legislatively stated policy . . . of this state.” (People v. Dent (2003) 30 Cal.4th 213, 224 (conc. opn. of Chin,J.).) Immediately after the passage of Proposition 3, this Court held in Sharp, supra, 7 Cal.3d at p. 459, that neither the California Constitution nor any state statute conferred a right to represent oneself. (7.aylor, supra, 47 Cal.4th at pp. 871-872.) Sharp remains goodlaw asto the California Constitution and Penal Code(id. at p. 872, fn. 8), and the courts “should give effect to this California law when [they] can.” (People v. Johnson (2012) 53 Cal.4th 519, 526.) Because California law “provides nostatutory or constitutional right of self representation . . .” (id. at p. 528; italics in original), “California courts may deny self-representation when the United States Constitution permits such denial.” (/d. at p. 523.) C. United States Supreme Court Decisions Permit California to Restrict the Sixth Amendment Rightto Self-Representation When the Exercise of That Right CompromisestheIntegrity of its Death Judgments After the United States Supreme Court decided Faretta v. California in 1975, the courts of this state interpreted that decision as establishing a defendant’s absolute rightto self-representation. (Taylor, supra, 47 Cal.4th 19 -at p. 872.) However, as shownin the previous argument, Faretta and the decisions that followed it have recognized that Faretta is limited by a numberofstate interests. (See Indiana v. Edwards, supra, 554 U.S.at p. 171 [recognizing that Faretta rights are not absolute]; Martinez v. Court of AppealofCal., Fourth Appellate District (2000) 528 U.S. 152, 163 [no right of self-representation on direct appeal in a criminal case]; McKasklev. Wiggins (1984) 465 U.S. 168, 187-188 [appointmentof standby counsel over self-represented defendant’s objection is permissible]; Faretta, supra, 422 U.S.at p. 834, fn. 46 [no right “to abuse the dignity of the courtroom”; no right to avoid compliance with “relevant rules of procedural and substantive law”; and, noright to “engag[e] in serious and obstructionist misconduct,”citing J/linois v. Allen (1970) 397 U.S. 337]; see also People v. Butler (2009) 47 Cal.4th 814, 825 [citing additional limits to Faretta recognized in California cases, i.e., requests that are untimely, abandoned, equivocal, “madein passing angeror frustration,” or intended to delay or disrupt proceedings may be denied].) In the context of a defendant lacking mental capacity, self- representation “undercuts the mostbasic of the Constitution’s criminal law objectives, providing a fair trial.” (Indiana v. Edwards, supra, 554 U.S.at pp. 176-177.) Similarly, California’s interest in the integrity and fairness of its trials takes precedenceover theright to self-representation when the latter eviscerates a fair trial and underminesthereliability of a death judgment. Inthetrial below, allowing appellant to represent himself and remain passive throughout the proceedings undermined the fairness and reliability of the judgment. Appellant’s Faretta rights should haveyielded to the government’s “constitutionally essential interest in assuring that the defendant’s trial is a fair one [citation omitted].” (/d. at p. 177.) 20 D. The Trial Court’s Failure to Deny Appellant’s Faretta Motion, or at Least to Revoke His Pro Se Status when Appellant Rested His Case at the Guilt Phase Without Questioning Any of the Prosecution Witnesses, Making Any Objections, or Presenting Any Evidence or Argument on His Behalf As explained above, Faretta and its progeny permit curtailing the self-representation right where,as here, the government’s interest in the integrity and fairnessofits trials is threatened or eliminated. This Court has also recognized that conduct “that threatens to ‘subvert the “core concept of a trial” [citation] or to compromise the court’s ability to conducta fairtrial [citation]’ may leadto forfeiture of the right ofself-representation.” (People v. Butler, supra, 47 Cal.4th at p. 826, quoting People v. Carson (2005) 35 Cal.4th 1, 10.) As Justice Brennan remarked,“[t]he Constitution would protect noneofusif it prevented the courts from acting to preserve the very processes that the Constitution itself prescribes.” (/linoisv. Allen, supra, 397 U.S.at p. 350 (conc.opn. of Brennan,J.).) Thetrial court below thus had the authority curtail appellant’s Faretta rights if his conduct threatened to compromise the court’s ability to conducta fair trial. (See People v. Butler, supra, 47 Cal.4th at p. 826.) In addition, the court had the more general “responsibility to ensure the integrity ofall stages of the proceedings.” (People v. Bradford (2007) 154 Cal.App.4th 1390, 1415.) By failing to limit appellant’s self-representation, the trial court also failed in its duty to conduct a fairtrial. At the time of appellant’s request to represent himself, the court knewthat appellant wantedto plead guilty to all charges, including capital murder, and had declined the appointment of advisory counsel or an investigator. (1 CT 180; 1 RTS 12, 41, 47-48.) Because appellant’s request threatened to compromise the court’s ability to conducta fair trial and the 21 reliability of any findings supporting a death judgment, the court should have followed section 686.1 and denied appellant’s request to represent himself. At the very least, the trial court should have revoked appellant’s pro per status when appellantrested at the guilt phase without examining any of the prosecution’s witnesses, making any objectionsor presenting any evidence or argumentin his own behalf. (1 CT 290; 2 RTS 265.) Ifa trial court can limit the right to self-representation when the request is untimely or intended to delay or disrupt proceedings (People v. Butler, supra, 47 Cal.4th at p. 825), it should have doneso in the circumstances here. Allowinga trial to proceed when the adversary system has ceased to functionis just as, if not more, pernicious thantolerating a trial where proceedings are delayed ordisrupted. Revoking appellant’s Faretta status would not have put an undue burden on thetrial court; the trial court itself offered to appoint counsel for appellantat the start of the penalty phase on January 10, 1996. (2 RTS 317.) In any case, revocation of Faretta status is not uncommon in capital casesin this state. For example, in People v. Bloom (1989) 48 Cal.3d 1194, appellant requested to represent himself after the jury found him guilty of capital murder. Thecourt revokedself-representation after the penalty phase, but reinstated it for the motion to modify the death verdict. (/d.atp. 1203.) In People v. Clark (1992) 3 Cal.4th 41, 113-116, this Court upheld the trial court’s decision to revoke defendant’s Faretta status when he announcedhis intention, mid-trial, to stand mute, reasoningthat it was obliged “to interpret Faretta in a reasonable fashion.” Revoking appellant’s Faretta status after the prosecution rested at the guilt phase would similarly have been a reasonableinterpretation of Faretta. 22 E. This Court Should Reevaluate its View That it Cannot Limit the Right of Self-Representation at a Capital Trial This Court has rejected the claim that California may limit the right to self-representation because a caseis capital one. In light of the Faretta line of cases culminating in Indiana v. Edwards, supra, 554 U.S. 164, however,it is apparent that the holdings of these cases were based on incorrect views ofthe limits of Faretta, ofFaretta rights as being absolute, of the balance between a defendant’s Faretta right and the state’s interest in obtainingreliable death judgments, and on the primacyofthe Eighth Amendmentat the death-eligibility and death-worthinessstagesof capital proceedings. Thus, in People v. Bloom, supra, 48 Cal.3d 1194, this Court acknowledgedthat the Eighth Amendmentimposed a “high requirement of reliability on the determination that death is the appropriate penalty in a particular case,” but stated that “the high court has never suggested that this heightened concern forreliability requires or justifies forcing an unwilling defendant to accept representation . . . in a capital case.” (dd.at p. 1228.) Appellant respectfully suggests that this conclusion is based upon a misreading of Faretta. Nocase is authority for a proposition not considered by the court. (Agnew v. State Bd. ofEqualization (1999) 21 Cal.4th 310, 332.) As shown in ArgumentIX, ante, neither Faretta nor the line of Supreme Court cases that followed it were capital cases or ever considered an Eighth Amendmentissue. People v. Clark (1990) 50 Cal.3d 583 rejected the argument that Faretta “invalidates [Penal Code] section 686.1, which mandates representation by counselin all stages ofa capitaltrial, only as to the guilt phase.” (/d. at p. 618, fn. 26.) Clark’s holding was expressly premised on 23 the now discredited theory that the right recognized in Faretta “is absolute.” (See ibid. and Indiana y, Edwards, supra, 554 U.S.at p. 171 [“the right of self-representation is not absolute”].) The holdings in People v. Bradford (1997) 15 Cal.4th 1229, 1364-1365, and People v. Koontz (2002) 27 Cal.4th 1041, 1074 — that despite “the state’s significantinterest in a reliable penalty determination,” ‘‘a defendant’s fundamental constitutional right to control his defense governs”— are also undermined by Martinez and Indianav. Edwards, which recognized that self-representation must give way whenit threatens the basic objective ofa fair trial, even in a noncapital case. (See Indiana v. Edwards, supra, 554 U.S.at pp. 176-177; Martinez v. Court ofAppeal of Cal., Fourth Appellate District, supra, 528 U.S.at pp. 161-162.) It follows that because the death penalty must be imposedin accord with the Eighth Amendment(see,e.g., Lockett v. Ohio (1978) 438 U.S. 586, 599), Eighth Amendment requirementsin a capital trial can outweigh an individual’s interest in self-representation. People v. Taylor, supra, 47 Cal.4th 850, postdates Edwards. There, the defendant arguedthat the Fifth and Eighth Amendmentsrequired representation by counselat the penalty phase in order to ensurereliability of the death verdict. (/d. at p. 865.) This Court relied on its prior cases for the proposition that the “autonomy interest motivating the decision in Faretta”applies at a capital penalty trial as wellas in a trial of guilt. (/bid.) However, as appellant demonstrated in ArgumentIX,ante, the historical andstructural analyses of the Sixth Amendment the Court undertook in Faretta cannotbetransplanted to the Eighth Amendment, which governs the death-eligibility and death-worthiness phasesofa capitaltrial. In addition, Faretta’s “free choice”rationale is groundedin the right to waive 24 proceduraltrial protections and does not apply to the Eighth Amendment, which imposes substantive limits on punishment. (Argument IX,ante, and Gregg v. Georgia (1976) 428 U.S. 153, 172, 174.) Appellant respectfully requests this Court to reconsiderits conclusion in Taylor andprior cases that a defendant has autonomyinterests in capital cases that can eviscerate Eighth Amendment requirements. Under the circumstanceshere, the Court should concludethat failure to appoint counselat trial was error. F. Failure to Enforce Penal Code Section 686.1 Was Error and Denial of Counsel Requires Reversal The foregoing United States Supreme Court cases demonstrate that - rights pursuantto Faretta must give way whentheresulting trial is the antithesis of a fair andreliable one. (See, e.g., Indiana v. Edwards, supra, 554 USS.at pp. 176-178.) As argued above in section B of this argument, similar concerns abouttrial fairness were the animating forces behind the enactmentof section 686.1. Becauseofthe limits to Faretta described in ArgumentIX, including the Supreme Court’s recognition that the states are free, in certain circumstances, to enforce their laws requiring counselin criminal prosecutions (Indiana v. Edwards, supra, 554 U.S.at p. 178), California has the latitude to enforce Penal Code section 686.1’s requirement of counselat trial, or at least at the penalty phase. Failure to do so under the circumstances of this case was error. (See People v. Robles (1970) 2 Cal.3d 205, 218-219 [error to permit defendant to waive counselin violation of state law]; People v. Carter (1967) 66 Cal.2d 666, 672 [same].) The erroneous deprivation ofthe right to counsel understate law requires reversal without a showing ofprejudice. (Peoplev. Robles, supra, 2 Cal.3d at pp. 218-219 [reversing judgment of death without showing of 25 prejudice where defendant erroneously permitted to represent himselfat penalty phase]; People v. Carter, supra, 66 Cal.2d at pp. 672-673 [reversing judgmentwithout showing of prejudice where defendant erroneously permitted to represent himself].) Appellant’s convictions, the special circumstancefindings and death verdict must therefore be reversed. / // 26 CONCLUSION Forall of the reasons stated in this brief, as well as those in Appellant’s Opening Brief, the judgment must be reversedin its entirety. Dated: February 7, 2014 Respectfully submitted, MICHAELJ. HERSEK State Public Defender AA4 GARY DYGARCIAV Senior Deputy State Public Defender Attorneys for Appellant DAVID SCOTT DANIELS 27 CERTIFICATE OF COUNSEL (Cal. Rules of Court, Rule 8.630(b)(2)) I, Gary Garcia, am the Senior Deputy State Public Defenderassigned to represent appellant David Scott Daniels in this automatic appeal. I instructed a memberofourstaff to conduct a word countofthis brief using our office’s computer software. On the basis of that computer-generated word count, I certify that the brief is 7,101 wordsin length. Dated: February 7, 2014 aug AfGantia 28 DECLARATION OF SERVICE Re: People v. David Scott Daniels Sacramento Superior Ct No.99F 10432 Supreme Court No. S095868 I, Neva Wandersee, declare that I am over 18 years of age, and not a party to the within cause; my business address is 1111 Broadway, Suite 1000, Oakland, California 94607. I served a copyofthe attached: APPELLANT’S SUPPLEMENTAL OPENING BRIEF on each of the following, by placing same in an envelope addressed respectively as follows: Office of the Attorney General Habeas Corpus Resource Center Attn: Larenda Delaini 303 Second Street, Suite 400 P.O. Box 944255 San Francisco, CA 94105 Sacramento, CA 94244-2550 David Scott Daniels P.O. Box K-90141 San Quentin, CA 94974 Each said envelope wasthen, on February 7, 2014, sealed and deposited in the United States mail at Oakland, California, Alameda county in which I am employed, with the postage thereon fully prepaid. I declare under penalty of perjury thatthe foregoingis true and correct. Signed on February 7, 2014, at l, California. DECLARANT