PEOPLE v. ESPINOZA

Appellant’s Answer Brief on the Merits

Cal.September 24, 2015

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA — SEP 9 4 2615 Prank A. Motsuire Clerk PEOPLE OF THE STATE OF No. §224929 Denouty) CALIFORNIA, ) ) Plaintiff and Respondent, ) Vv. ) ) ZEFERINO ESPINOZA, SJr., ) ) ) ) Defendant and Appellant. Sixth Appellate District No. H039219 Sant Clara County Superior Court No. CC954850 The Honorable Paul Bernal, Judge ANSWERBRIEF ON THE MERITS LAWRENCEA.GIBBS (SBN 98866) P.O. Box 7639 Berkeley, California 94707 Tel: (510) 525-6847 Email: lawgibbs@gmail.com Attorney for Defendant/Appellant ZEFERINO ESPINOZA,Jr. TABLE OF CONTENTS ISSUES ON REVIEW .... 0...occeee tenes 1 INTRODUCTION 2.0...ceeeee nes 2 STATEMENTOF THE CASE ..... 0.0.0.0. ec ec eens 5 I. | The Charges ........ 0.0... ccc eee tenes 5 II. Pretrial Proceedings .... 2.0.2.0... cee cece eee 5 A. Denial of Appellant’s Marsden and Faretta Motions And The Trial Court’s Concern For Appellant’s Mental Health ............ 00.0.0... cece ee eee 5 B. The Trial Court Continues To Express Concerns For Appellant’s Mental Health,Yet Grants Appellant’s Motion To Represent Himself ....... 10 1, Faretta Advisements ...............0.04 12 Il. The Trial Begins With Appellant Representing Himself .. 14 IV. Appellant’s Failure To Appear ..................200. 14 V. The Trial Court’s Decision To Try Appellant Jn Absentia Without Appointing Counsel ................ 1S VI.‘ Post-trial Events... 0...eee ene 16 COURT OF APPEAL OPINION .... 0.00... cece eee ens 18 THE STATE’S CONTENTIONS ......... 00... eee eee eee 20 SUMMARY OF ARGUMENT.. 2.0.0.0... 00... eee eee eee nes 21 ARGUMENT2.0...ennn teen ne ens 25 I. The Trial OfA Voluntarily Absent Pro Se Defendant, Who Has Forfeited His Right To Self-Representation, Cannot Proceed Without The Appointmentof Counsel.......... 25 A. Legal Principles ............0.... 00.2 c eee eee 26 Application Of The Legal Principles To Appellant’s Case... 2... eeeee 32 l. Appellant’s Right To Self-Representation Was Subject To Forfeiture............... 32 2. The Trial Court Constructively Terminated Appellant’s Right To Self-Representation .. 38 3. The Revocation Of Appellant’s Right To Self-Representation Was Within the Trial Court’s Discretion ................0004. 4] C. Where The Trial Court Terminates A Pro Se Defendant’s Right To Self-Representation, The Trial Court Must Appoint Counsel .............. 43 1, Appointment Under The Sixth Amendmant . 43 2. Appointment Under State Law ........... 48 II. The Trial Court AbusedIts Discretion In Denying Appellant A One-Day Continuance After The Court Granted Him The Right To Represent Himself.......... 53 A. Relevant Facts ........ 0.0... c eee eee eee 53 B. TheTrial Court AbusedIts Discretion In Denying A One-Day Continuance .............. 55 CONCLUSION 2.00.00... 00 ccc cece ceeceeeeeeeeeeesSeve 57 CERTIFICATES li TABLE OF AUTHORITIES FEDERAL CASES Adams v. Carroll (9th Cir. 1989) 875 F.2d 1441 oeeeccceeeseeseeeeeseeneeens 43 Carnley v. Cochran (1962) 369 U.S. 506 ....ececcecccsccesseeeeeesetsecsseecsssseessass 26 Clark v. Perez (2d Cir. 2008) 510 F.3d 382 oo... eceeeeceesseseeeseseeeeees 35, 36 Davis v. Grant (2d Cir. 2008) 532 F.3d 132 woceccecccscessssecessesseees 27, 44, 45 Faretta v. California (1975) 422 U.S. 806........cccccccesseeseessteeseeeesseenspassim Indiana v. Edwards (2008) 554 U.S. 806 o...ceeeseeseceeseeeseeeseessenseeeeseesesees 49 Mayberry v. Pennsylvania (1971) 400 U.S. 455 woe eeeeececseseessesseeseeeseesees 45 McKaskle v. Wiggins (1984) 465 U.S. 168 oeeeeseeceseeeteeseeeesseeseeatens 40 Powell v. Alabama (1932) 287 U.S. 45 eeeeceseesssseteeeeeeeeeeens 21, 26, 43, 45 Torres v. United States (2d Cir. 1998) 140 F.3d 392 oceeeeeeeeeeen 35, 38 United States v. Cronic (1984) 466 U.S. 648 wocccccccccsecessseessseeeneeeees 42, 52 United States v. Lawrence (4th Cir. 1998) 161 F.3d 250ee 35, 36 United States v. Mack (9th Cir. 2004) 362 F.3d 597 wou... ..cccceeesseeeseees 27, 44 United States v. Wade (1967) 388 U.S. 218 wo.ccccccccsecsseceessessctecensesseeeens 43 Von Moltke v. Gillies (1948) 332 U.S. 708 oe eeeeseseteeeeeceeetsesetseseeneseeens 46 STATE CASES People v. Bradford (1997) 15 Cal.4th 1229 ..ccccsssseessessesseeseeeesvee 40 People v. Brante (Colo.App. 2009) 232 P.3d 204.0... cccccccssseseseeeees 35, 37 ili People v. Cohn (Colo.Ct.App. 2007) 160 P.3d 336 weeeceeenees 29,44 People v. Carroll (1983) 140 Cal.App.3d 135oe 27, 28, 37, 43, 44 People v. Carson (2005) 35 Cal4th 1 oo... cee ecceesseeeeeeeeeseeens 31, 32, 41, 42 People v. Carter (1967) 66 Cal.2d 666 .......ccccccc cece teeteseeeenseesene sees 47 People v. Clark (1992) 3 Cal.4th 41 oo.21, 22, 30, 31, 33 People v. El (2002) 102 Cal.App.4th 1047 cssessete sevseeaeesseeees 27, 28, 37, 43 People v. Floyd (1970) 1 Cal.3d 694 oooceeeesseseeseesseneeeeereeeteesenaes 50 People v. Fulton (1979) 92 Cal.App.3d 972 ...cceccesssssseseceseesecssseseeeeeeeees 54 People v. Johnson (2010) 53 Cal.4th 519 woesccceesseeens 23, 48, 49, 52 People v. Marsden (1970) 2 Cal.3d 118 onseaeecanaeeecessaceesaasesuseesenseeeeeneenseges 5 People v. Parento (1991) 235 Cal.App.3d 1378 oeeeeeee 25, 29 People v. Parento (1991) 235 Cal.App.3d 1379oesseeeneeeeees 34 People v. Soukomlane (2008) 162 Cal.App.4th 214 oo. 27, 28, 37, 43 People v. Stansbury (1993) 4 Cal.4th 1017...ceeeeseeessseeenees22, 31, 33 People v. Teron (1979) 23 Cal.3d 103 oocecesessesseeeeseeneesessseseseees 22,31 People v. Valdez (2004) 32 Cal.4th 73 occcseeceesscsesecessessesneseeenaes 24, 56 Saunders v. State (Tex.App. 1985) 721 S.W.2d 359 oes29, 44 State v. Eddy (R.1. 2013) 68 A.3d 1089...eesseeceseeseeseeeeeteeeneeeeaes 35-38 State v. Menefee (Or. 2014) 341 P.2d 229 oeeeeeeerseeeeeereeees 29,44 State v. Worthy (Minn. 1998) 583 N.W.2d 270 ooeeeseeseeeseeeeeeee’ 35, 36 iv STATE STATUTES Evidence Code section 402 oo... ccccccccssssecesesescesssesesessnscesseceensesssneceses 15 Penal Code section 1043 oo... cciccccccscccccccesssseceessecesssseessssseeseseesees 21, 25, 51 Code of Judicial Ethics, Canon 4 oo.ccecccceceessccccesessceccecececsesecececeeseeesnes 45 MISCELLANEOUS ABAStandards for Criminal Justice 6-3.9 (1986) 0... .ceesceceseeeseceseseeeees 45 ISSUES ON REVIEW l. Didthetrial court err in continuingtrial in appellant’s absence without a valid waiverofhistrial rights or appointment of counsel after appellant, who wasout of custody and representing himself, voluntarily failed to appear for his ongoingtrial? 2. Wasreversal required because thetrial court refused to grant appellant a one-day continuanceafter it granted his motion during jury selection to represent himself? INTRODUCTION Appellant, who was charged with various drug and weaponsoffenses, had extraordinary difficulty working with attorneys. In protracted pretrial proceedings, appellant went through several public defenders. While thetrial court viewed appellant’s conductas intentionally disruptive, there was an alternative, more complex explanation: appellant’s mental disorder. In pretrial proceedings, the trial court and the public defender repeatedly stated their belief that appellant suffered from mental disorders. The court told appellant he had a personality disorder, could not process information like most people, could not tell the truth and could not control himself in court. The court remarked, “this is the kind of experience I have had with people who havehada lifelong drug abuse where their minds stop working right.” This wasnotthe only such exchange betweenthe court and appellant. At one point, the court asked, “Mr. Espinoza, do you suffer from any disorder which causes youto be unable to sit still while Mr. Camperiis talking?... Just so it’s clear, on the record I want to say every time Mr. Camperiis talking you’re jumping out ofyour seat, you’re wriggling, you’re rolling your eyes and youare looking at the deputy as if the deputy should intervene and help you out. I don’t know what’s going on. Do you have some kind of disorder?” (10 RT 397.) A few momentslater, in response to appellant’s claim that the public defender had done nothing onhis case, the court observed, “J don’t knowif it’s hyperbole or in your world it’s really different than everyone else sees. I’m wondering ifyou suffer from a disorder. ... And I am really concerned for you.” (10 RT 399.) Whenappellantsaid he felt personally attacked, the court responded, “Everyone is born with assets and deficits, including myself, right? ... Some people have a condition which causes them notto be able to process information exactly like everybody else because weare all different. But the information I am giving youis not being processed completely, I’ve witnessed that. And the information you are giving to meis not a reflection of whatis really going on and I have witnessed that. ... Maybe you have an inability to receive information.” (10 RT 412.) There was more. Appellant told the court that he believed that an arresting officer had a sexualrelationship with an informant, which wasall proven by “a bloody handkerchief.” Appellant’s public defender told the court there was no evidence to support appellant’s bizarre claims. Despiteall this, the trial court permitted appellant to waive the assistance of counsel and represent himself. Unsurprisingly, appellant was not up to the task and he failed to appear on the nextdayoftrial. Thetrial court then proceeded without appellant and without defense counsel. The ensuing criminal judgment wasthus the product of an ex parte proceeding in which only the prosecutorparticipated. In the trial court’s view, which is echoed here by the State, by failing to appear, the pro se appellant forfeited not just his right to be present but his right to counsel. The matter, however, is more nuanced. The Sixth Amendment guarantees twodistinct rights: the right to self-representation and the right to the assistance of counsel. When appellant failed to appear, with the intent to obstruct or delaythetrial, his right to self-representation became subjectto forfeiture. Thetrial judge, however, wanted to make sure that appellant was represented. The court did not take the obvioussolution: re-appointing the public defender who had preparedthe casefortrial and had just been relieved. Instead, as the judge candidly acknowledged,the judge himself “sat in defense counsel’s seat to protect the rights of the defendant.” By acting as self-appointed counsel for appellant, the trial court constructively revoked appellant’s right to self-representation. There is general agreementthat, when the trial court terminates a defendant’s right to self-representation for misconduct, the right to counsel endures and counsel must be appointed. Because appellant’s conviction was obtained in violation of appellant’s right to counsel, the judgmentofthe court of appeal should be affirmed. STATEMENT OF THE CASE I. The Charges An information filed in December 2009 charged appellant with eight counts, consisting of drug and weaponsoffenses, making criminal threats and attempting to dissuade a witness. (See Ct. App., typed opn.at pp. 3-4.) Appellant pleaded not guilty. (1 CT 81.) II. Pretrial Proceedings A. Denial of Appellant’s Marsden and Faretta Motions And The Court’s Concern For Appellant’s Mental Health The pretrial proceedings lasted more than two years, during which appellant made several motions to relieve appointed counsel under People v. Marsden (1970) 2 Cal.3d 118. (1 CT 95-98 [4/28/10]; 228-229 [3/13/12]; 242 [4/17/12]; 247 [4/23/12].) Seven different public defenders represented appellant in 65 appearances on his behalf. Thetrial court foundthis to be a product of appellant's delay tactics and “manipulations of the process.” (13 RT 1026.) The record’ — includingthetrial court’s own, repeated observations — discloses a more complex explanation for the difficult and protracted pretrial proceedings: appellant’s mental disorders. In March 2012, Mark Camperi from the public defender's office ' The records of these Marsden hearings were unsealed by thetrial court. (13 RT 1014-1015.) represented appellant. (1 CT 228-229.) On March 14, 2012, appellant moved under Marsden to relieve Camperi, but after a closed hearing, the court denied the motion. (9 RT 292-312.) During that hearing, Camperi described the difficulties other attorneys in his office had experienced with appellant. The previous attorney assigned to appellant’s case “wasliterally crying when she wastalking to him. Andshesaid that he was perhapsone of the mostdifficult clients she’s ever had and nearly drove her off the calendar and she was going crazy.” (9 RT 297.) Camperi noted that “[t]he reason nobody wants to handle the case in our office is because he’s been so difficult to handle.” (9 RT 297-298.) Camperi described an incident in court in which appellant “was movingto different parts of the courtroom getting closer and closer behind me with a notepad,staring directly at me, making faces and taking notes and making weird noises.” (9 RT 298.) Camperi told the court that he was willing to continue to represent appellant “despite his personality disorders.” (9 RT 300.) The Marsden motion was denied. (9 RT 305.) On April 17, 2012, six days beforetrial, appellant again movedto relieve Camperi and to represent himself under Faretta v. California (1975) 422 U.S. 806. (10 RT 319.) Appellant requested “a conflict of interest attorney to help me handle my case.” (10 RT 320.) The court asked appellant when he would be readyfor trial. Appellant requested a continuanceof “a little bit more than three weeks or so just to see where I'm at.” (10 RT 321.) The court denied the Faretta motion on the ground that appellant was not prepared to represent himself in a timely fashion. (10 RT 324-325.) The court also found that “sometimes people use the Faretta as a tool to manipulate the court system, which appears to be happening. If youtruly wanted to represent yourself you could have brought that motion any time in the last few years in this case and then you would have been readyfortrial.” (10 RT 324.) On April 23, 2012, appellant again movedto relieve Camperi. (10 RT 379 et seq.) Appellant made various allegations about Camperi’s representation, including that Camperi had threatened him, did not care about the case, failed to investigate certain witnesses, and would not communicate with him. (10 RT 380-384.) Appellant made the followingbizarre allegations about Mr. Camperi: DEFENDANT:“[Mr. Camperi] hasn’t handed over the statements of those witnesses and audio. Especially with it’s referring to Officer Jessica Marie Dale,the investigating officer, having a relationship with a confidential witness Augustine Gonzalez, Sr., very important information. As they would putit it’s the bloody handkerchief. THE COURT: Thebloody handkerchief? THE DEFENDANT:Yes. THE COURT:What’sthat? THE DEFENDANT:That’s evidence that supports everything that. I’m saying and J can show you statements of the witnessesthat are making statements aboutthe officers and the personal relationship with the officer and the witness, the confidential informant ... There is a conspiracy and I know that [Camperi] is involved beqause he’s not wanting to represent me. THE COURT:CanI ask you when yousay that Jessica Marie Dale, the peace officer, had a relationship with Augustine Gonzalez, Sr. Do you mean a sexual relationship? THE DEFENDANT: Romantic. And he’s a felon. And she’s claiming that she knowsme.... [Camperi] knew that the officer and the confidential witness Augustine Gonzalez have a romantic relationship. He has her possessions. There is evidence that shows that, not only evidence but statements from people they don’t even know the party thatit’s just evidence that they found in the possession.” (10 RT 383-384.) The court asked Camperi to respond. Camperi said that, while appellant had been abusive, “I understand that sometimes people have personality disorders.” (10 RT 392.) Camperi said that he “didn’t have him personally diagnosed or anything like that.” (/d.) Camperi said there was no evidence to support appellant’s allegation of a sexual relationship between the investigating officer and the informant. (10 RT 396.) In its briefing below,the State was candid: it told the court of appeal! that in these pretrial hearings, “appellant acted irrationally” and made “unsubstantiated claims.” (Resp. Br., at p. 4.) Thetrial court at that point became concerned aboutappellant’s mental health. The court asked appellant, “Mr. Espinoza, do you suffer from any disorder which causes youto be unable tosit still while Mr. Camperiis talking? ... Just so it’s clear, on the record I want to say every time Mr. Camperiis talking you’re jumping out of yourseat, you’re wriggling, you’re rolling your eyes and you are looking at the deputy as if the deputy should intervene and help you out. I don’t know what’s going on. Do you have some kind of disorder?” (10 RT 397.) Momentslater, in response to appellant’s claim that Camperi had done nothing on his case, the court observed, “I don’t know if it’s hyperbole or in your world it’s really different than everyone else sees. I’m wonderingifyou suffer from a disorder. We just want to make sure that you get quality representation. You get your day in court. You get to say what you get to say.. You get fair trial. These are my goals. And I am really concerned for you.” (10 RT 399.) When appellant made what appeared to be more false accusations, the court again questioned his mental health: “Are you just lying, or are you making thingsup,or are you suffering from mental illness? (10 RT 405.) The court continued, “So I’m wondering if you are having an inability to process what Mr. Camperiis telling you and an inability to process what ’'m telling you. Did you have problems in school?” When the appellant asked what kind of problems, the court responded, “Just difficulty processing information.” (10 RT 408.) The court noted that“this is the kind of experience I have had with people whohave hada lifelong drug abuse where their minds stop workingright.” (10 RT 409.) Appellant complained that he felt like he was being attacked. The court responded: | THE COURT:I want to address that. Nobodyis attacking you... I’m just trying to have an open discussion with youto help you. Everyoneis born with assets and deficits, including myself, right? Everybodyhasgottheir high point and their low points. Some people have dyslexia where they mis-up letters in a word or words in a sentence. Some people have ADHD. They have a problem paying attention. Some people have a condition which causes them not to be able to process information exactly like everybody else because we are all different. Butthe information I am giving youis not being processed completely, I’ve witnessed that. And the information you are giving to meis not a reflection of what is really going on and I have witnessed that. There’s nothing wrong with that, it’s just who you are and maybethat’s part of the frustration that you’re having with Mr. Camperi is maybe youare not catching 100 percent of what he’s saying and maybe you havean inability to receive information. (10 RT 412.) Camperi denied appellant’s accusations. (10 RT 423-426.) The court found nobasis for the Marsden motion. (10 RT 426.) In denying the motion, the court observedthat“the statement that Mr. Espinoza has madeto the court regarding the facts associated with this case do not line up with the evidence before the court, or in some cases, reality. The attorneys and the court have discussed the issue of incompetence and Mr. Espinozafalls in the category of he may have a personality disorder , but he does not lack competenceto stand trial.” (10 RT 427.) B. The Trial Court Continues To Express Concerns For Appellant’s Mental Health Yet Grants Appellant’s Motion to Represent Himself. The next day, in the middle ofjury selection, appellant renewedhis Marsden and Faretta motions. The court held another closed hearing. (10 RT 454 et seq.) Appellant sought to initiate contempt proceedings against Camperi, complaining that Camperi lied to him and would not communicate with him. (10 RT 454-462.) When the court questioned appellant’s version of events, appellant responded: “And if I seem like J am not sane maybe they 10 should have an evaluation, maybe I am crazy or something because I don’t understand the way he’s treating me and the way he’s acting. I’m supposed to feel secure. I’m not even allowedto participate in my defense. That’s sad.” (10 RT 463.) The court found appellant's allegations to be untrue, and told appellant, “You’re a liar. You are a liar, sir.” (10 RT 469- 470.) The court again denied the Marsden motion on the groundthat appellant was “playing the system.” (10 RT 473.) The court disputed appellant’s characterization of Camperi as uncooperative, and noted that it was appellant who was unable to control himself: “Mr. Espinozaflies off the handle, interrupts, interrupts me, interrupts his attorney, interrupts my deputy, is very animated, throwshis hands around,rolls his eyes.” (10 RT 474.) The court told appellant, “you have a problem controlling yourself... I’ve never seen anyonelike you before. This is incredible to me.” The court compared appellant’s behavior to people on the Ricki Lake Show orthe Jerry Springer Show. (10 RT 475- 476.) Appellant moved once again under Faretta to represent himself. (10 RT 476.) The court told appellant, “[i]f you are ready to proceedtotrial without him you can doit.” (10 RT 476.) Appellant requested co-counsel to assist him, which the court denied. (10 RT 476.) The following colloquy then took place: THE DEFENDANT:I am requesting that when I go pro per becauseI won’t be ready like tomorrow. It will take me two weeks. THE COURT:Andthat’s why you can’t have Mr. Camperi taken off 1] the case. THE DEFENDANT:Heis affecting my case, Your Honor. He doesn’t communicate. He doesn’t want to talk to me. He’s making youbelieve that I have a mental state. He’s making youbelieve there is something mentally wrong with me. He’s making the court’s believe that. THE COURT:Well, I’m not an expert, but I believe you have a personality disorder which is not something to be ashamedof. THE DEFENDANT:Is that bad? THE COURT:No,it’s not bad. It’s not good,it’s not bad. THE DEFENDANT:I don’t know,that’s the only personality that I have. If people takeit in the wrong way there’s nothing I can do. I’m really scared here, Your Honor, about what’s going on. Camperiis lying. (10 RT 477.) Appellant insisted on representing himself rather than proceed with Camperi. (10 RT 480.) Despite the court and counsel’s concerns that appellant suffered a personality disorder that madeit impossible for him to process information,tell the truth and control himself, the court stated, “very good,” and began the process of taking appellant’s Faretta waiver. (10 RT 481.) 1. Faretta Advisements. Appellant filled out a form entitled, “Petition To Proceed In Propria Persona,” which advised appellant of varioustrial rights, including the right to counsel. (1 CT 251.) Asto this right, the form stated: “T understand that I have the right to be represented by a lawyer 12 at all stages of the proceedings and, if I do not have funds to employ counsel, one will be appointed for me by the court.” (1 CT 251.) The form required appellant to acknowledge that he was conditionally waiving the right to appointed counsel. The form included the two following advisements: 6. I understandthat the right to act in propria personais not a license to abuse the dignity of the Court. I understand that the Court may terminate myright to self-representation in the event that I engage in serious misconduct and obstruct the conduct and progress ofthetrial. 7. I understand that if at some point an appointed attorney does haveto take over mycase, that attorney may beat a great disadvantage in presenting my case. (1 CT 253.) The court reviewed the form with appellant. (10 RT 485-487.) The court found that appellant voluntarily waived his right to counsel and added that “the appellant has been working the system as part of a delay tactic.” (10 RT 487-488.) Appellant then asked, “me taking over the case today canI at least get a continuance to tomorrow?” (10 RT 486.) The court replied, “no”. (/d.) The court told appellant that Camperi would “not be coming pack” and that appellant would not be getting co-counsel. Appellant said he was willing to represent himself. (10 RT 497-498.) The court granted the Faretta motion and relieved Mr. Camperi. (10 RT 488.) 13 Il. The Trial Begins With Appellant Representing Himself With appellant representing himself, the court resumedjury selection. (10 RT 1094.) The jury was sworn andinstructed, and the prosecutor gave his opening statement. ( 10 RT 494-510.) Appellant waived his opening statement. (10 RT 510.) The prosecution then called appellant’s roommate, Augustine Gonzalez,to testify. (10 RT 510.) Appellant lodged two objections during the prosecution's direct examination, but conducted no cross-examination. (10 RT 527.) The court recessed for the day. (10 RT 531.) IV. Appellant Fails To Appear The next morning, appellant failed to appearfor trial. (11 RT 606.) All efforts by the court and police to find or contact appellant were unsuccessful. (11 RT 608-615.) The next day, the court convened at 8:50 a.m. Appellantstill failed to appear. (11 RT 608.) Thetrial then court made the factual finding: “The court is making a finding under Penal Code section 1043 that the appellant had voluntarily, knowingly, and purposefully absented himself from trial. The court finds that he knowingly absented himself. The court finds that he abandonedthis trial purposefully and that the purpose for which he chose to not cometo trial was evasion ofthetrial or avoiding penalty for the alleged crimesthat he allegedly committed or another delay tactic with the appellant perhaps believing that if he didn't show upto trial that the court would terminate this jury trial, send the jurors home and then when he comesin a month he wouldtry to delay thetrial again for anotherthree years.” 14 (11 RT 608-609.) V. The Trial Court’s Decision To Try Appellant In Absentia Without Appointing Counsel. The court then stated that “we are going to proceed in absentia pursuant to Penal Code 1043 and People versus Connolly.” (11 RT 615.) The court did not raise or considerthe issue of the complete absence of defense counsel. It simply proceeded withthetrial in appellant's absence without appointing defense counsel. The defense table was therefore empty. The prosecutor was the only party to participate. The prosecution presented testimony from four police officers and a criminalist from the county crime laboratory. (11 RT 625-701.) The court also held hearings under Evidence Codesection 402 to determine the admissibility of appellant's statements to police, which the court found admissible. (11 RT 616-624.) The prosecutor, himself, commented to the jury that the entire ex parte proceeding“has beenattimesa little surreal and a little strange ....” (11 RT 716.) Although there was no defense counsel during thetrial, the trial court recognized the need for counsel and, accordingly, took it upon itself to step into defense counsel’s shoes. Thus, following the hearing on the admissibility of appellant’s statement, the court stated: “The court has also taken into consideration the argumentlikely that the defendant/or his defense attorney would have madeifthey had beenpresent....” (11 RT 624.) Before — a second policeofficer testified to appellant’s statements, the court stated, 15 “The court is going to conduct a 402 hearing as if defense were here and had objections to things that this officer would be testifying to and the court is having this hearing to protect the rights of the defendant in his absence.” (11 RT 662-663.) The court made a similar commentin respect to the jury instructions. (E.g., 11 RT 761-762 [The Court took into consideration arguments, requests, and objections that the defense would have made.”’]; At the close of evidence, the court instructed the jury, “[d]o not consider [appellant’s] absence for any purpose in your deliberations.” (11 RT 709. See also 11 RT 734-735.) The jury convicted appellant on the counts related to drug possession and being a felon in possession of a firearm and ammunition. (2 CT 320- 327.) The jury acquitted appellant of making criminal threats and attempting to dissuade a witness through a threat of force. Ud.) IV. Post-Trial Events In May 2012, a month after the end ofthe trial, appellant voluntarily reappeared in court with counsel, and the court remanded him into custody. (12 RT 903-904.) The court denied appellant's motion to exonerate his $50,000 bail, which he forfeited by failing to appear. (12 RT 907.) Appellant movedfor a newtrial on various grounds includingthat the trial court erred by proceeding with thetrial without the appointment of counsel. (3 CT 445, 454-464.) The court denied the motion. (13 RT 1024- 1030.) The court ruled that appellant “volitionally” chose not to appearfor 16 trial, and the trial could therefore proceed. (13 RT 1029-1030.) But the court noted that appellant was not entirely without counsel. Here, the trial court gave its most thorough explanation ofits role as surrogate defense counsel: “In his absence during thetrial, I, as a court, voiced a defense position on behalf of the defendant as if he were here during the trial. I iterated what the defense would wantonall substantial issues and motions. J basically sat in defense counsel’s seat to protect the rights ofthe defendant, and I took all possible, reasonable defense positions into account before I ruled on any issues that was [sic] before the court in the defendant’s absence.” (13 RT 1029-1030 [emphasis added].) The court then sentenced appellant to two years, eight months in prison. (5 CT 1038-1040.) 17 COURT OF APPEAL’S OPINION The court of appeal reversed. The case, according to the court “concemsthe constitutionality of a trial held without the presence of the defendant or defense counsel.” (Typed opn.at p. 1.) The court explained that the constitution granted appellant varioustrial rights including the right to counsel; that appellant could waiveall such rights; but that any such waiver must be “knowing and intelligent.” (/d. at pp. 9-10, 16.) While the record established that appellant voluntarily absented himself from thetrial, “nothing in the record shows defendant knew the trial would proceed or was proceeding without him. Hencethe record fails to support any inference that defendant made a knowing waiver of his fundamentaltrial rights.” (Ud. at pp. 16-17.) Though notessential to its decision, the court suggested three measuresthe trial court could have taken to both safeguard appellant’s constitutional rights and ensure the integrity of the judicial process. Thetrial court could have appointed Mr. Camperi as standby counsel, so that he would have been available to conduct the trial in appellant’s absence. (/d. at p. 18.) Thetrial court could have re-appointed Camperi to proceed with the trial upon appellant’s disappearance. This option was eminently workable since Camperi had fully prepared the case for trial and was “well prepared to step in.” (Id. at p. 19.) Or,the trial court could have advised appellant during the Faretta processthat, in the event he failed to appearfortrial, the trial would proceed without him and without counsel. Such advisement would insured 18 that appellant’s failure to appear would have constituted a knowing and intelligent waiverofhistrial rights. (/d.) The court of appeal further held that the trial court abusedits discretion by refusing to grant appellant a one-day continuanceafterthetrial court granted appellantthe right to represent himself. 19 THE STATE’S CONTENTIONS The State argues that there was no legal impediment to conducting the trial in the absence of both appellant and defense counsel. The State makes two main points: First, appellant’s voluntary absence from trial simply reflected his decision to “conduct[] his defense by nonparticipation. A competent, self-representing defendant hasa right to choose ‘simply notto oppose the prosecution’s case,’” which decision is consistent with the defendant’s right of self-representation, and must be respected by thetrial court. (Op. Br. at pp. 26-28.) The appointment of counsel was not required (or even permitted) because appellant, in choosing to defend the case by nonparticipation, remained as counsel. Second, the appointment of counsel wasnot required because, when appellant initially secured the right to represent himself, he entered a valid waiver of the assistance of counsel. (/d. at pp. 35-36.) Asto thetrial court’s denial of a one-day continuance, the State argues that there was no abuse of discretion. Wherethetrial court, as here, grants an untimely Faretta motion, itmay do so on the condition that there be no delay in the proceedings. (/d. at pp. 36-39.) 20 SUMMARY OF ARGUMENT lL Violation of the Right to Counsel Whenappellant failed to appear attrial, the trial court orderedthetrial to proceedin his absence. The court acted pursuant to Penal Codesection 1043, which permits the trial of a voluntarily absent defendant, But that statute only concernsthe forfeiture of the defendant’s right “to be to proceed. personally presentat the trial.” (Pen. Code section 1043, subd. (a).) Section 1043 is silent on the question whether suchtrial may proceed without counsel for the defendant. To answer this question, we mustreturn to basic Sixth Amendment principles. The Sixth Amendmentprovidesthe right to assistance of counsel at all critical stages of a criminal prosecution. (Powell v. Alabama (1932) 287 U.S. 45.) A defendant may waivethatright to counsel and choose to represent himself. (Faretta v. California (1975) 422 U.S. 806.) The right to self-representation, however, is subject to forfeiture, and can be terminated, if the defendant “deliberately engages in serious and obstructionist misconduct.” (Id. at p. 834, fn. 46.) Wheretheright to self-representation has been terminated -- explicitly or impliedly -- counsel must be re- appointed. A self-representing defendant who declinesto participate in thetrial may, but does notnecessarily, forfeit his right to self-representation. Where » non-participation is a “conscious decision to simply force the prosecution to its proof,” (People v. Clark (1992) 3 Cal.4th 41, 116), as where the self- 21 representing defendant vowsto “stand mute” throughouttrial, the defendant’s right to control his own defense prevails andhis rightto self- representation is not subject to forfeiture. (People v. Teron (1979) 23 Cal.3d 103, 115.) In such a case, the defendant remains as counsel, and there is no right to, or need for, the appointment of additional counsel. But where a defendant’s non-participation is not a considered defense strategy, but “a deliberate course of action designed to cause as much disruption as possible,” (People v. Clark, supra, 3 Cal.4th at p. 116), or “to interject error and delay into the proceedings,”the right to self-representation is subject to forfeiture and trial court may revokeit. (/d.; People v. Stansbury (1993) 4 Cal.4th 1017, 1046.) Even in this situation, however, while the right to self-representation may be forfeited, the right to the assistance of counsel endures. Wherethetrial court revokes the appellant’s right to self- representation, it must appoint counsel. Thefailure to do sois reversible error. In the instant case, the trial court expressly found that the appellant’s failure to appear (or “non-participation”) was intended to obstruct and delay the trial. Appellant’s right to self-representation wastherefore subject to forfeiture. Andit was in fact terminated. Thetrial court clearly indicatedits termination of appellant’s Faretta right. The court did not permit appellant to control his defense through non-participation. Instead, throughouttrial, the court took it upon itself to serve as appellant’s counsel. Asthetrial court candidly explained, “I basically sat in defense counsel’s seat to protect the 22 rights of the defendant.....’ (13 RT 1029-1030.) Thetrial court’s error in this case was in undertaking the appellant’s representationitself, rather than appointing counsel for that task. And the public defender, who had been relieved only the previous day, was fully prepared to acceptthat re- appointment could readily have picked up where heleft off the day before. The fact that appellant, in initially seeking self-representation, conditionally waived his right to counsel does not require a differentresult. In every case in which the defendantis granted the rightto self- representation, the defendant necessarily waives the right to the assistance of counsel for as long as his right to self-representation endures. (Farettav. California (1975) 422 U.S. 806, 835.) Yet, where thetrial court revokes the right of self-representation, the courts agree that counsel must then be appointed. The rationale is plain:the initial waiver of the right to assistance of counsel was conditioned, implicitly or explicitly, upon the defendant’s continued ability to represent himself. Once the court revokes the defendant’s right to self-representation, the condition underlying the waiver of counsel ceases to exist, and the initial waiver is no longer effective. At that point, the Sixth Amendment requires the appointment of counsel. The appointmentof counsel wasalso required by state law. Once appellant’s federal Faretta rights were terminated, appellant’s right to proceed pro se becamesubject to state law. California does not recognize the right to self-representation, though it may be granted as a matter of discretion if the defendant meets standards of competence. In People v. Johnson (2010) 53 Cal.4th 519, 530, this Court held that trial courts have discretion to deny 23 self-representation to mentally ill defendants who “cannot carry out the basic tasks need to present the defense without the help of counsel.” Thetrial court here failed to exercise its discretion under Johnson, at two points: first, whenit granted appellant the right to self-representation; and second, when appellant failed to appear. Had the court exercisedits discretion, it would have concludedthat appellant did not meet the Johnson standard, and that the appointment of counsel was required. Because appellant’s trial proceeded without counsel, the judgment of the court of appeal should be affirmed. IL. Denial of One-Day Continuance TheState argues that it is not an abuse of discretion for the trial court to condition granting a Faretta motion on the granting of no continuances. The law is to the contrary. While the trial court may deny self-representation to a defendant who requires a continuanceofthetrial, the situation is different if the court grants the Faretta motion. In that case, “a necessary continuance must be granted if a motion for self-representation is granted....” (People v. Valdez (32 Cal.4th 73, 103.) Here, becausethe trial court granted appellant the right to represent himself, it was obligated to grant him “a necessary continuance” to prepare. Underthis standard, as the court of appeal properly held, denial of a one-day continuance was an abuse of discretion. 24 ARGUMENT I. The Trial OfA Voluntarily Absent Pro Se Defendant, Who HasForfeited His Right To Self-Representation, Cannot Proceed Without The Appointment of Counsel. The court of appeal, and the State have assumedthat, in determining whether a court must appoint counsel for an absent pro se defendant, the governing distinction is whether the defendant’s absenceis voluntary or involuntary. (See Typed Opn., at pp. 12-15; Op. Br. at pp. 24-28.) The State argues that appellant’s voluntary absence from trial simply reflected appellant’s decision to “conduct[] his defense by nonparticipation. A competent, self-representing defendant has a right to choose ‘simply not to opposethe prosecution’s case.’” (Op. Br. at p. 27, quoting People v. Parento (1991) 235 Cal.App.3d 1378, 1381.) That decision is consistent with the defendant’s right of self-representation, and must be respected by thetrial court. (Op. Br.at pp. 26-28.) As explained below, the lower court and the parties havenot fully understood the caselaw. The relevant distinction is not whether the pro se defendant’s absenceis voluntary or involuntary. While that distinction is relevant under Penal Code section 1043 for determining whetherthe defendant has forfeited his right to be present and confront witnesses, a different analysis governs with respect to a pro se defendant’s right to counsel. The relevant question is whether the pro se defendant has forfeited his right to self-represeritation. If the right to self-representation has been forfeited, counsel must be appointed. 25 Further, as this Court’s decisions make very clear, depending on the nature of the pro se defendant’s absence, even a voluntarily non-participating pro se defendant can forfeit his right to self-representation. Here, while appellant’s absence was voluntary,the trial court found that his absence was simply intended disruptthe trial. Appellant’s right to self-representation was therefore subject to forfeiture, and the trial court terminated it. Once the right to self-representation was terminated,the trial court was obligated to appoint counsel. A. Legal Principles The Sixth Amendment providesthe right to assistance of counselatall critical stages of a criminal prosecution. (Powell v. Alabama, supra, 287 U.S. 45.) This right is automatic: “Where the assistance of counselis a constitutional requisite, the right to be furnished counsel does not depend on a request.” (Carnley v. Cochran (1962) 369 U.S. 506, 513.) A defendant may of course waive the right to counsel and chooseto represent himself. (Faretta v. California, supra, 422 U.S. 806.) Faretta madeit clear, however,that theright to self-representation can be forfeited by misbehavior. “Thetrial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.” (Jd. at p. 834, fn. 46.) Faretta further advised that “a State may — even over objection by the accused — appoint a ‘standby counsel’ ... to be available to represent the accusedin the event that termination of the defendant’s self-representation is 26 necessary.” (/d.) The Supreme Court’s suggestion in Faretta — that a state court might prepare for termination of a defendant’s self-representation by having stand- by counsel available —- makes an important distinction. While they are both rooted in the Sixth Amendment, theright to self-representation is distinct from theright to counsel. Thus, the forfeiture of self-representation does not entail forfeiture of the assistance of counsel. “A defendant does not forfeit his right to representation at trial when he acts out. He merely forfeits his right to represent himself in the proceeding.” (United States v. Mack (9" Cir. 2004) 362 F.3d 597, 601: Davis v. Grant (2d Cir. 2008) 532 F.3d 132, 144, fn. 8.) This issue has most commonlyarisen in the context ofthe so-called “involuntary” removal from the courtroom of a misbehaving, pro se defendant.? Several California cases have confronted this fact pattern, andall have held that, while the misbehaving defendantforfeited his rightto self- representation, he retained the right to the assistance of counselthereafter. (People v. Soukomlane (2008) 162 Cal.App.4th 214; People v. El (2002) 102 Cal.App.4th 1047; People v. Carroll (1983) 140 Cal.App.3d 135.) In each of these cases, the appellate court founderror in the trial court’s failure to appoint counsel for the pro se defendant who had been removed from court. 2 The term, “involuntary removal” is a misnomer. In each of these cases, the pro se defendant misbehaved, was warnedbythetrial court that further misconduct would result in expulsion, and the defendant voluntarily defied the court and continued his misconduct. The defendant’s ejection from court was thus the productofhis voluntary decision to defy the court. 27 The facts ofPeople v. Carroll are typical. Carroll was granted the right to self-representation. However, he continually disrupted the proceedings. Thetrial court warned Carroll he would be removedifhe continued his disruptions. Carroll continued his misconduct, and he was removed during the testimony of several witnesses. The court of appeal noted Faretta’s admonition in footnote 46 of that opinion -- that forfeiture of the right to self-representation does notforfeit the right to representation by standby counsel. (/d. at pp. 142-143.) The court explained: In this case, excluding defendant from the courtroom meantthat certain parts of the People's case proceeded without the presence of the defendant, or counsel for the defense. Such a situation offends the most fundamental idea of due process of law, as defendantis totally deprived of presenceat trial and even of knowledge of what has taken place. Because defendant represented himself, his removal from the courtroom deprived him not only of his own presence, but of legal representation. (Id. at p. 141. See also People v. El, supra, 102 Cal.App.4th 1047, 1050 [‘‘Justice cannot be done’ in one-sided criminal proceedings where neither defendant nor defense counselis present.”*]; People v. Soukomlane, supra, 162 Cal.App.4th at p. 234 [citing Faretta’s footnote 46 for the proposition that the defendant’s right to counsel survives forfeiture of the rightof self- representation, and reversing where pro se defendant removed from courtroom and counsel not appointed to represent him in his absence].) The vast majority of federal and sister-state courts to consider the > The court in E/ found the errorin proceeding without counsel harmless in light ofthe brief time defendant was deprived of representation. (People v. El, supra, 102 Cal.App.4th at pp. 1050-1051.) 28 issue have similarly held that, when a defendant forfeits his right to self- representation, the right to counsel enduresandthetrial court must appoint counselto represent andprotect the defendant’s interests. (E.g., People v. Cohn (Colo.Ct.App. 2007) 160 P.3d 336. 343 [holding that a misbehaving - pro se defendant mayforfeit his right to self-representation, but notthe right to counsel in his absence]; Saunders v. State (Tex.App. 1985) 721 S.W.2d 359, 363-364 [finding error where misbehaving, pro se defendant was removed from courtroom but counsel was not appointed to represent him in his absence]; State v. Menefee (Or.App. 2014) 341 P.3d 229, 246 [finding violation of the right to counsel where court removed misbehavingpro se defendant, but did not secure defendant’s waiver of his right to representation at trial or appoint counsel].) While the State does not address or mention these so-called involuntary removal cases,it resists application of the principle announced in | these cases on the groundthat appellant’s absence from thetrial is materially different: The State notes that appellant’s absence was the productofhis voluntary departure, rather than the product of his voluntary disobedience of a court order and subsequent removal. The State claims that appellant’s voluntary absence fromtrial simply reflected appellant’s decision to “conduct[] his defense by nonparticipation.” (Op. Br. at p. 27, quoting People v. Parento (1991) 235 Cal.App.3d 1378, 1381.) Put otherwise, because appellant chose to defend himself by the acceptable legal strategy of non- participation, his right to self-representation was not subjectto forfeiture. 29 Hence,though absent from the trial, appellant remained as counsel. However, the State entirely ignores a critical distinction this Court has madein determining whethera particular defendant’s right to self- representation may be revoked. A self-representing defendant who declines to participate in the trial may, but does not necessarily, forfeit his right to self-representation. People v. Clark (1992) 3 Cal.4th 41, 116, is the leading case. There, Clark had beeninitially represented by appointed counsel. On the day of trial, Clark moved for self-representation. Thetrial court denied the motion as untimely. The defendant renewed his motion before opening statements, but the court again denied it because Clark was not ready to proceed immediately with trial. On the fourth day oftrial, Clark again movedto represent himself and told the court he was ready to proceed. The court granted defendant’s Faretta motion, but ordered his appointed counsel to remain as standby counsel. After complaining that his trial preparation was being impeded, Clark requested additional resources, which were denied. Clark then vowedto “stand mute” throughoutthe trial. Ud. at pp. 91-95.) Thetrial court ruled that Clark thereby “had renouncedhis right to represent himself,” terminated his Faretta rights, and ordered standby counsel reinstated. Ud. at pp. 96-97.) After he was convicted, Clark appealed on the groundthat the trial court erred by revoking his right of self-representation when he vowed to stand mute. This Court noted that “we have upheld cases in whichthetrial 30 court allowed a self-represented defendant notto actively participate in the defense,” citing People v. Teron (1979) 23 Cal.3d 103, and similar cases. (Id. at p. 114.) The Court nonetheless held that the revocation was proper. Wherea pro se defendant’s non-participation is a “conscious decision to simply force the prosecution to its proof,”as it was in Teron, the defendant’s right to control his own defense prevails andhis right to self-representationis not subject to forfeiture. (/d. at p. 116; People v. Teron, supra, 23 Cal.3d at p. 115.) In such a case, the defendant remains as counsel, and there is no right to, or need for, the appointmentof additional counsel. But where a defendant’s non-participation is not a considered defense strategy, but “a deliberate course of action designed to cause as much disruption as possible,” the rightto self-representation is subject to forfeiture andthe trial court may revokeit. (People v. Clark, supra, 3 Cal.4th at p. 116. See also Peoplev. Stansbury (1993) 4 Cal.4th 1017, 1046 [where pro se defendant’s vow to stand mute is intended “to interject error and delay into the proceedings,” defendant’s self-representation may be revoked].) While Clark established the circumstances in which a non- participating defendant’s right to self-representation may be subject to forfeiture, in People v. Carson (2005) 35 Cal.4th 1, this Court established the factors that a trial court must consider in determining whether to revokethat right. The decision must be guided by whether“the defendant’s misconduct seriously threaten[s] the core integrity ofthe trial.” (/d. at p. 7.) The Court explained: “Whenever ‘deliberate dilatory or obstructive behavior’ threatens 31 to subvert ‘the core conceptofa trial,’ or to compromise the court’s ability to conducta fair trial, the defendant’s Faretta rights are subject to forfeiture.” (/d. at p. 10, citations omitted.) A trial court is entitled to revoke self- representation for conduct “occurring in court or out of court — that threatens to compromisethe court’s ability to conduct a fairtrial.” (Ud. at p. 7.) In addition to the defendant’s conduct andits impactonthetrial proceedings, the factors to be considered in revoking a defendant’s Faretta right include “the availability and suitability of alternative sanctions,” “whether the defendant has been warnedthat particular misconductwill result in termination of in propria persona status,” and whether“the defendanthas‘intentionally sought to disrupt and delay his trial.’” Such a purpose “in many instances... will suffice to order termination.” (Jd.atp. 10.) B. Application Of The Legal Principles To Appellant’s Case. Underthe legal principles described above, appellant’s right to self- representation was subject to forfeiture; the trial court terminated appellant’s right to self-representation; and that termination wasfully within the trial court’s discretion. Theerrorlies in thetrial court’s failure to thereafter appoint counsel. 1. Appellant’s Right To Self-Representation WasSubject To Forfeiture. The facts of the instant case are very similar to Clark. Thetrial court 32 in appellant’s case expressly found that the appellant’s non-participation was intendedto obstruct and delay the trial. Thetrial court could not have been clearer: “The court finds that [appellant] knowingly absented himself. The court finds that he abandonedthis trial purposefully and that the purpose for which he choseto not cometo trial was evasion ofthetrial or avoiding penalty for the alleged crimes that he allegedly committed or another delay tactic with the appellant perhaps believing that if he didn't show uptotrial that the court would terminatethis jury trial, send the jurors home and then when he comesin a month he wouldtry to delay thetrial again for another three years.” (11 RT 608-609.) | Contrary to the State’s view, appellant’s non-participation was not, in intent or effect, a “conscious decision to simply force the prosecution.to its - proof,” (People v. Clark, supra, 3 Cal.4th at p. 116) as it was in Peoplev. Teron. Rather, it was “a deliberate course of action designed to cause as much disruption as possible,” (id.), and intended “to interject error and delay into the proceedings”(People v. Stansbury, supra, 4 Cal.4that p. 1046.) Appellant’s right to self-representation was accordingly subject to forfeiture. Without consideringthecritical distinction drawn by this Court in _ Clark and Stansbury, the State argues that appellant, as part of his Faretta rights, was entitled “to select his or her defense or to make no defense.” (Op. Br. at p. 17.) Appellant absconded, and “deliberately made no defense.” (Id) The State’s position, however,fails to take into account Clark’s holding that non-participation is not always a legal strategy that precludes forfeiture of the right of self-representation. The trial court’s own finding 33 that appellant’s failure to appear was intended to evadetrial, avoid the penalty, and sow delay into the proceedings distinguishes this case from those upon whichthe State relies where the pro se defendant’s non- participation is a legal strategy to put the prosecution to its proof. The State’s assertion that “it is a large assumption that the Sixth Amendment would allow a court to terminate a pro se defendant’s rightto self- representation whenheor she voluntarily fails to appear for trial,” (Opening Br. at p. 17), is belied by Clark and Stansbury. It is not a large assumption;it . is the law of those cases. The distinction made in Clark and Stansbury similarly underminesthe case the State most heavily relies upon, People v. Parento (1991) 235 Cal.App.3d 1379. In Parento, a pro se defendant was denied a continuance and thereafter refused to participate in the trial. Relying on People v. Teron for the proposition that “the choice of self-representation preserves for the defendant the option of conducting his defense by nonparticipation,”(id. at p. 1381), Parento held that the trial could proceed in the defendant’s absence and without the need to appoint counsel. The holding wasexplicitly based on the theory that the defendant’s refusal to participate was a conscious defense strategy to put the prosecution to its proof, that he continuedto act as counsel, and hisright to self-representation wastherefore not subject to forfeiture. Parento was decided prior to People v. Clark and People v. Stansbury, which qualified the rule ofPeople v. Teron in an important respect: While 34 Teron seemed to suggest that a pro se defendant’s non-participation was always a choice of defense, and that was therefore not subject to forfeiture, Clark and Stansbury held that, depending on the facts of the case, a defendant’s non-participation might not be a choice of defense but an attempt of delay, obstruct or sow error into the proceedings. As such, it is not a defense strategy, and may render the defendant’s prose status subject to forfeiture. Having not had the benefit of this Court’s decisions in Clark and Stansbury, the Parento court did not evaluate whether the defendant’s pro se conduct was subject to forfeiture or not. While the application ofthat distinction in Parento is speculative, there can be no speculation aboutits application in the instant case. Thetrial court here expressly found that appellant’s conduct wasintendedto disrupt the proceedings. It was therefore subject to forfeiture. For this reason, the State’s reliance on various out-of-state and federal cases, finding that a pro se defendant’s voluntary absence carries no forfeiture of the right to self-representation, is misplaced. (See Op.Br.at pp. 27-28, citing Clark v. Perez (2d Cir. 2008) 510 F.3d 382; Torres v. United States (2d Cir. 1998) 140 F.3d 392; United States v. Lawrence (4" Cir. 1998) 161 F.3d 250; People v. Brante (Colo.App. 2009) 232 Pp3d 204; State v. Eddy (R.1. 2013) 68 A.3d 1089; State v. Worthy (Minn. 1998) 583 N.W.2d 270.) In several of these cases, the pro se defendant’s voluntary absence was of the first variety discussed in People v. Clark: it was a conscious defense 35 strategy intendedto put the state to its proof. As such,it could notresult in forfeiture of the right of self-representation. Thus, in both Torres v. United States and Clark v. Perez, the pro se defendants, who were members of a Puerto Rican liberation group, challengedthe trial court’s jurisdiction over them based ontheir political belief of Puerto Rican independence. Torres did notparticipate in trial, “but exercised herright to defend herself so that she could furtherherpolitical objectives as a Puerto Rican freedom fighter.” (/d. at p. 402.) Echoingthis Court’s holding in People v. Clark, the Second Circuit noted that Torres’ right to self-representation could be terminated for “serious and obstructionist misconduct,” but not for choosing her own defense. (/d. at p. 403. The court in Clark v. Perez, confronted the same facts and arrived at the same conclusion. (Clark v. Perez, supra, 510 F.3d at p. 397 [defendant “adopt[ed] a consciousstrategy to use [her] trial to further [her] political objectives and to challenge the jurisdiction of the court and winpolitical sympathy.” (Jd. at p. 397.)* The out-of-state cases are also distinguishable, though on a different basis. In Brante, the defendant repeatedly engaged in obstreperous and contemptuous behavior toward the court, including obscene gestures and profane statements. The trial court twice removed Brante from the court. * The decision in United States v. Lawrence, supra, 161 F.3d 250, contains insufficient facts to draw any relevant conclusions. Lawrence represented himself but he also had advisory counsel. While Lawrence askednotto be presentattrial, it is unclear from the decision whether, in his absence, standby counsel conducted the defense. Indeed, the only constitutional right the decision discussesis the right to be present, which Lawrence clearly waived, and whichisnotat issue here. 36 Following his second removal, the court told advisory counselthat “it did not believe it had the authority to appoint him to represent Brante.” (People v. Brante, supra, 232 P.3d at p. 206.) Brante told the court he was “not going to be part of a kangaroo court,”andleft. Trial continued without Brante and without counsel, resulting in a conviction which wasaffirmed on appeal. While the Coloradotrial court in Brante believed hedid not have authority under state law to revoke Brante’s rightto self-representation and appoint counsel after Brante’s involuntary removal, thatis not the case in California. As discussed above, under this Court’s decision in Peoplev. Clark, a misbehaving pro se defendant like Brante may forfeit his right to self-representation, and authorizes appointmentof standby counselto represent the defendant.’ State v. Eddy, supra, 68 A.3d 1089,is similarly distinguishable. There, defendant engaged in extensive delay tactics, fired three attorneys, obtained pro se status, and then declared he would not attend trial. Counsel was not appointed and Eddy was convicted. (Jd. at pp 1093-1094, 1096- 1098.) The RhodeIsland Supreme Court approved ofproceeding without > The decision in Brante is particularly curious since Farettaitself authorizes forfeiture of self-representation and appointment of standby counsel. (See Faretta, supra, 422 U.S. at p. 834, fn. 46.) Further, California appellate decisions provide for the appointment counsel for an involuntarily removed pro se defendant — a power the court in Brante did not believe it had. (People v. El, supra,102 Cal.App.4th 1047 [requiring appointmentof counselafter involuntary removalofpro se defendant}; People v. Carroll, supra, 140 Cal.App.3d 135 [same]; and People v. Soukomlane, supra, 162 Cal.App.4th 214 [same].) 37 counsel — but on a theory this Court rejected in Clark. The Eddy court explained: “In the case of voluntary absence by choice, the cause of the defendant’s non-presenceis the defendant’s own decision to leave the courtroom, which carries with it noforfeiture ofthe rightofself- representation.” (Id. at p. 1108, citing Torres v. United States, supra, 140 F.3d at p. 402 [emphasis added].) This, of course, is not the law in California. Here, under People v. Clark, People v. Stansbury, and People v. Carson,the rightto self-representation of defendants like Eddy, who engage in protracted delay tactics and then claim they will notparticipate, is subject to forfeiture. Nothing in the cases the State relies upon precluded thetrial court from finding that appellant had forfeited his right to self-representation, and revokingthat right. Basedon this Court’s decisions in Clark and Carson, the trial court in appellant’s case was fully empowered to do just that. As explained below,the trial court in fact terminated that right. 2. The Trial Court Constructively Terminated _ Appellant’s Right To Self-Representation Thetrial court terminated appellant’s Faretta rights. This muchis clear from the fact that the court did not permit appellant to control his defense through non-participation. Instead of permitting appellantto exercise and control a defense strategy of non-participation, the court took the unusual step, throughouttrial, of serving as appellant’s counsel. As the trial court candidly explained, “I basically sat in defense counsel’s seat to 38 protectthe rights of the defendant. ....” (13 RT 1029-1030.) Thus, the court conducted hearings on the admissibility of appellant’s statements, and considered arguments “that the defendant/or his defense attorney would have madeif they had been present....” (11 RT 624.) The court conducted a section 402 hearing before a police officer testified to appellant’s statements, and “as if defense were here and had objectionsto things that this officer would be testifying to.” The court stated it was conducting “the hearing to protectthe rights of the defendant in his absence.” (11 RT 662-663.) The court made similar commentsat other pointsin thetrial. (E.g., 1] RT 761- 762 [“The Court took into consideration arguments, requests, and objections that the defense would have made.”].) This is not the conduct of a court that has permitted an absent defendant to remain as counsel and to control his defense by non- participation. It is the conduct of a court that has literally taken over the defense of the case. Andthat is precisely what the court stated on the record whenit gave its most thorough explanationofits role as surrogate defense counsel: “In his absence duringthetrial, I, as a court, voiced a defense position on behalf ofthe defendantas if he were here during thetrial. I iterated what the defense would wantonall substantial issues and motions. I basically sat in defense counsel’s seat to protectthe rights ofthe defendant, and | took all possible, reasonable defense positions into account beforeI ruled on any issues that was [sic] before the court in the defendant’s absence.” (13 RT 1029-1030 [emphasis added].) 39 Thetrial court’s decision to sit in defense counsel’s seat is entirely inconsistent with the appellant’s right to self-representation, much in the same waythat an overly active or intrusive advisory counselis inconsistent with a defendant’s right to self-representation. As this Court has observed, “the powers and responsibilities attendant upon the representation of a person criminally accused never should be conferred jointly and equally on the accused and the attorney ... [E]ither the accusedor the attorney should be in charge. Stated otherwise, at all times the record should beclear that the accusedis either self-represented or represented by counsel; the accused cannot be both at once.” (People v. Bradford (1997) 15 Cal.4th 1229, 1368, emphasis added. See McKaskle v. Wiggins (1984) 465 U.S. 168 [placing limits on standby counsel’s participation in order to protect pro se defendant’s Faretta rights].) In this respect, the position of the State and the position ofthetrial court are fundamentally at odds. The State insists that the trial court permitted appellant to continue to represent himself througha strategy of non-participation. Thetrial court insists that it performed the duties of defense counsel. The record, however, supportsthe trial court’s description of its own conductin the case. Thetrial court’s conduct indicated thatit foundthat appellant’s interests were not protected by counsel (including appellant as pro se counsel), and that counsel other than appellant was required. The court thus constructively terminated appellant’s Faretta rights. Asexplained below,the revocation of appellant’s self-representation 40 was not error. People v. Clark and People v. Carson gave the trial judge full authority to do so. 3. The Revocation Of Appellant’s Right To Self-Representation Was Within The Trial Court’s Discretion The trial court’s decision to terminate appellant’s rightto self- representation, and “[sit] in defense counsel’s seat,” was fully within its discretion. Underthe principles this Court established in People v. Carson, supra, 35 Cal.4th 1, the trial court could lawfully terminate appellant’s pro se status if it found that appellant’s “dilatory or obstructive behavior threatens to subvert the core concept ofa trial.” (Id. at p. 10.) Failing to appear for trial had that precise effect. Not only was appellant’s conduct obstructive and intended to delay and sowerrorinto the trial, but it threatened to produce, andin fact did produce, a one-sided proceeding. This threatened a core conceptofa criminaltrial. A core conceptof a criminaltrial is that it is an adversarial, not an ex parte, proceeding. As the United States Supreme Court has explained, “[t]he very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective tha t the guilty be convicted andthe innocent go free. It is that ‘very premise’ tha t underlies and gives meaning to the Sixth Amendment.It ‘is meant to assure fairness in the adversary criminal process.’ Unless the accused receives the effective assistance of counsel, "a serious risk of injustice infects thetrial 41 itself." (United States v. Cronic (1984) 466 U.S. 648, 655-656.) Ifa criminaltrial “loses its character as a confrontation between adversaries, the constitutional guarantee is violated. As Judge Wyzanski has written: ‘While a criminaltrial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators.’” (Ud. at pp. 656-657.) Theresult of the pro se appellant’s failure to appearat trial was the complete evisceration of the adversarial process. It is difficult to conceive of conduct that more deeply offends the core concept of a criminal proceeding. The rest of the Carson factors also supported termination of appellant’s Faretta rights. There were no alternative sanctions, such as contempt, that the court could impose on appellant to induce his return. The defendant was warnedthat “the Court may terminate myrightto self- representation in the event that I engage in serious misconduct and obstruct the conduct and progressofthe trial.” (1 CT 253.) And, most importantly, the trial court found that appellant had intentionally sought to disrupt and delay the trial. As Carson noted,this factor alone is often sufficient to justify termination. (35 Cal.4th at p. 10.) In sum, appellant’s conduct madehis self-representation subject to forfeiture. Thetrial court terminated appellant’s right to self-representation. Andthat decision wasfully within the trial court’s discretion. As explained below, having terminated appellant’s right to self-representation, the trial court was obligated to appoint counsel. 42 C. Where The Court Terminates A Pro Se Defendant’s Right To Self-representation, The Trial Court Must Appoint Counsel. 1. Appointment Under The Sixth Amendment Oncethetrial court has revoked a defendant’s federal right to self- representation, the defendant is without counsel for the remainingcritical stages of the criminal proceeding. At that point, the Sixth Amendment requires the appointment of counsel (Powell v. Alabama, supra, 287 U.S. 45; United States v. Wade (1967) 388 U.S. 218, 223-227), unless the defendant has “knowingly andintelligently” waived that right. (Faretta, supra, 422 U.S.at p. 835; Adams v. Carroll (9" Cir. 1989) 875 F.2d 1441, 1444 [“The right to the assistance of counsel is automatic; assumingthe right is not waived, assistance must be made available at criminal stages of a criminal prosecution.”’].) For this reason, the courts are generally in agreement that, when the trial court revokes a defendant’sright to self-representation, counsel must be appointed. That has certainly been the holding of California cases. (See, e.g., People v. El, supra, 102 Cal.App.4th at p. 1050; People v. Carroll, supra, 140 Cal.App.3d at pp. 142-143; People v. Soukomlane, supra, 162 Cal.App.4th at p. 234.) As Carroll put it, conducting a trial without counsel after a defendant’s right to self-representation has been revoked,“offends the most fundamental idea of due process of law ... The right to counsel at trial is one ofthe rights of due process which are necessary to insure he fundamental humanrights to life and liberty. If this safeguard is not provided, justice 43 cannot be done. Thestate is without the power and authority to deprive an accused oflife and liberty unless he has or waivesassistance of counsel.” (140 Cal.App.3d at p. 141.) The federal and sister-state decisions are in accord. (E.g., United States v. Mack (9th Cir. 2004) 362 F.3d 597, 601; Davis v. Grant (2d Cir. 2008) 532 F.3d 132, 143-144; People v. Cohn (Colo. 2007) 160 P.3d 336, 343; State v. Menefee (Or. 2014) 341 P.2d 229; Saunders v. State (Tex.Ct.App. 1985) 721 S.W.2d 359, 363.)° Davis v. Grantis particularly instructive on this point. While the result denyingrelief in that case was dictated the circumscribed standard of review on federal habeas, the court stated that if the question were presented on direct appeal, it would be inclined to hold that “the Sixth Amendment requires that a defendant whois involuntarily removed from the courtroom must beprovided with replacement counsel during his absence.” (532 F.3d 132 at p. 144.) The Second Circuit gave three reasonsto support that rule: First, without appointment of counsel, “an absent defendant can protect neither his constitutionally guaranteed trial rights nor his interest in the outcome ofthe proceeding.” Second, “the government’s ‘independent interest’ in ensuring that criminaltrials are fair and accurate favors the appointment of replacement counsel.” Third, “the judiciary’s interestin 6 As discussed above, while these cases involve appointment of counsel following the involuntary removal of a pro se defendant, the more relevant factor is whetherthe trial court revoked the defendant’s right to self-representation. As this Court held in People v. Clark and People v. Stansbury, revocation can occur not only in involuntary removal cases, but in voluntary absence cases as well. 44 ensuring that criminal proceedings ‘appearfair to all who observe them’ strongly favors the appointment of replacement counsel.” (Jd. at pp. 143- 144.) Davis quoted former Chief Justice Berger, who wasa dissenter in Faretta: “A criminal trial is not a private matter; the public interest is so great that the presence and participation of counsel, even when opposedby the accused, is warranted in order to vindicate the processitself.” (/d. at p. 144, quoting Mayberry v. Pennsylvania (1971) 400 U.S. 455, 468 [conc.opn. of Berger, C.J.].)’ In light of these indisputable interests in avoiding one-sided criminal proceedings,as occurred here, the Sixth Amendmentrequires appointmentof counsel following revocation of a defendant’s Faretta rights.* 7 As Davis v. Grant noted, the American Bar Association Standards for Criminal Justice endorses appointment of counsel following revocation of a defendant’s right to self-representation. “If a defendant whots permitted to proceed withoutthe assistance of counsel engages in conduct which is so disruptive ... that the trial cannot proceed in an orderly manner, the court should, after appropriate warnings, revoke the permission and require representation by counsel.” ABA Standards for Criminal Justice 6-3.9 (1986) (3d ed.2000). 8 Nor could thetrial court’s effort to act as defense counsel be a substitute for the actual appointment of counsel. Over 80 years ago, Powell y. Alabama, supra, 287 U.S. 45, squarely rejected the idea that a defendant may be denied counselat a critical stage in a felony case so long as a judge is present to protect his interests: “It is apparent to the least consideration, that a court can never furnish a person accused of a crime with the advice, and assistance necessary to make his defense.” (/d. at 63.) Moreover, judges are precluded from the practice of law. (Cal. Code of Judicial Ethics, Canon 4(G).) The Advisory Committee Commentary to this Canon explainsthat “this prohibition refers to the practice of law in a representative capacity...” A judge is automatically disqualified from hearing any case in which “the judge served as a lawyer in the proceeding” 45 The State disagrees, arguing that appellant waivedhis right to counsel whenheinitially opted for self-representation. Thus, accordingto the State, there is no Sixth Amendmentviolation from the failure to appoint counsel. (Op. Br.at p. 36.) There are two flawsin this argument. First, the State’s argument proves too much. In every case in which a defendant opts for self- representation, he necessarily waives the right to the assistance of counsel. (Faretta, supra, 422 U.S. at p. 835 [“[I]n order to represent himself, the accused must “knowingly andintelligently’ forgo those relinquished benefits [associated with the right to counsel]”; Von Moltke v. Gillies (1948) 332 U.S. 708, 724.) As noted above, in virtually every case in whichthetrial court terminated the pro se status of a misbehaving pro se defendant, that defendant had previously waived the assistance of counsel. If the State’s argument werecorrect, those courts could, citing the defendant’s prior waiver of counsel, refuse to appoint counsel. They do not do so. Second, there is a compelling reasonthe initial waiver of the assistance of counsel does not extendto the situation in which the right to | self-representation is revoked. That is, the original waiver was conditioned on the court permitting the defendant to represent himself. Whenthetrial court revokes the defendant’s self-representation, that condition fails and the or “gave adviceto anyparty in the present proceeding upon any matter involved in the action or proceeding.” (Cal. Code Civ. Proc. § 170.1(a)(2).) 46 waiver is no longer valid. Viewed in this way, the State’s assertion that appellant waived the assistance of counsel when he moved for self- representation under Faretta is notentirely accurate. It is clear from the Faretta proceeding that appellant entered a conditional waiver of counsel. This Court is familiar with conditional waivers of counsel, having considered them in People v. Carter (1967) 66 Cal.2d 666. There, defendant moved for self-representation on the condition that he be allowed accessto the law library. Duringtrial, however, he was denied accessto the library, and convicted. This Court reversed because there was “no effective waiverof the right to counsel.” (/d. at p. 670.) As this Court explained, “In the present matter there was no effective waiver ofthe right to counsel. Manifestly, a waiver of counsel which is made conditional by a defendant cannotbe effective unless the condition is accepted by the court. Hereit is clear from the record that defendant's willingness to proceed without counsel was predicated upon his mistaken belief, reinforced by the failure ofthe trial judge to promptly and unequivocally reject the condition imposed by defendant, that he wouldbe permitted somesort of meaningful access to and use of library facilities.” (Id. at p. 670.) Appellant’s waiver of counselin the instant case was limited, in much the sameway as the waiver in People v. Carter. The only differenceis that in appellant’s case, the court accepted the condition. Whenthetrial court took appellant’s waiver, appellant was specifically advised of, and stated that he understood, the following: 6. I understandthat the right to act in propria personais not a license to abuse the dignity of the Court. I understandthat the Court may terminate myright to self-representation in the event 47 that I engage in serious misconduct and obstruct the conduct and progressofthetrial. 7. I understandthat if at some point an appointed attorney does have to take over my case, that attorney may beat a great disadvantage in presenting my case. (1 CT 253.) The import of these two advisements wasthat the court could terminate appellant’s pro se status for misconduct, but that if it did so, “an appointed attorney” may “haveto take over[his] case... at a great disadvantage...” Appellant agreed to these conditions on his right of self- representation. And, these conditions were valid: they were not only accepted by the trial court; they were specifically required by the trial court in the Faretta form appellantfilled out and filed in court. When thetrial court in the instant case terminated appellant’s pro se status, the conditional waiver of counsel precluded the court from proceeding without the appointment of defense counsel. The Sixth Amendmentrequired the appointment of counsel. 2. Appointment Under State Law Appointment of counsel following revocation ofthe right to self- representation wasalso required by state law. Asnoted above, California law does not recognizethe right to self- representation. The law in California “has long been that criminal defendants have noright of self-representation.” (People v. Johnson (2012) 53 Cal.4th 519, 523.) “When Faretta was decided, the law in California had 48 been that a criminal defendant had no constitutional or statutory right to self- representation, although in non-capital cases the trial court had discretion to grant a defendant’s request for self-representation.” (Jd. at p. 526.)’ Faretta, of course, superceded California law on this point. However, in Indiana v. Edwards (2008) 554 U.S. 806, the Supreme Court held that, Faretta notwithstanding,“the states may, but need not, deny self-representation to defendants who, although competentto standtrial, lack the mental health or capacity to represent themselvesat trial — persons the court referred to as ‘sray-area defendants.’” (People v. Johnson, supra, 53 Cal.4th at p. 523.) In Johnson, this Court accepted Indiana v. Edwards’ invitation. This Court held: “Because California law — which, of course, is subject to theUnited States Constitution — has long been that criminal defendants have no right of self-representation, we conclude that California courts may denyself- representation when the United States Constitution permits such denial.” (Id.) Asthis Court stated, “California courts should give effect to this California law when it can.” (Ud. at p. 526.) ” The Legislature had good reasonsfor limiting self-representation: ““Whenthe Legislature enacted Penal Codesection 686.1, requiring the appointmentof counsel, it made this finding: ‘The Legislature findsthat persons representing themselves cause unnecessary delaysin the trials of charges against them;thattrials are extended by such persons representing themselves; and that orderly trial procedures are disrupted. Self-representation places a heavy burden upon the administration of criminal justice without any advantages accruing to those persons who desire to represent themselves.’ (Stats.1971, ch. 1800, § 6, p. 3898; see People v. Sharp, supra, 7 Cal.3d at p. 463 [quoting this policy statement].).” (People v. Johnson, supra, 53 Cal.4th at p. 526.) | 49 Here, whenthetrial court terminated appellant’s rightto self- representation, his federal rights under Faretta were extinguished. Atthat point, California law disfavoring self-representation became applicable. The trial court was then obligated “to give effect to this California law.” Appellant’s forfeiture of his Faretta rights made the application of California law possible. The law of California would strongly have favored,if not required, the appointment of counsel. Under pre-Faretta law in California, the trial court could not accept a waiver of counsel unless the defendant “has anintelligent conception of the consequencesofhis act and understandsthe nature of the offense, the available pleas and defenses, and the possible punishments.” (People v. Floyd (1970) 1 Cal.3d 694, 703.) The record beforethe trial court contains no such information as to appellant’s capacity or understanding of his case. Indeed,his bizarre, unsupported notion that the arresting officer was having an affair with a witness as indicted by “a bloody handkerchief,” demonstrates appellant lacked any such understanding. Further, appellant’s mental illness provided a basis forthetrial court to appoint counsel. As Johnson held, California trial courts may denyself- representation where “the defendant suffers from a severe mentalillness to the point where he or she cannot carry outthe basic tasks neededto present the defense withoutthe help of counsel.” (Jd. at p. 530.) When trial court doubts that a defendant has this capacity, it must exercise its discretion in determining whetherto grant or deny Faretta rights. (Id. at p. 531.) 50 In light of the trial court’s serious concerns for appellant’s mental illness, and his consequentinability to process information,tell the truth, or control himself in court, the trial court was obligated to exerciseits discretion under People v. Johnson to determine whetherappellant suffered from a mental illness “to the point where he or she cannot carry out the basic tasks neededto present the defense without the help of counsel.” Clearly, the trial court should have conducted this inquiry when appellant first sought self-representation. It did not, even thoughthe court’s concems were more than sufficient to find appellant not competent to waive counsel. Even more clearly, however,the trial court should have madethis inquiry after appellant failed to appearfortrial. At that point, thetrial court decided, only with reference to Penal Code section 1043, to continue thetrial in appellant’s absence and without appointing counsel. Thetrial court did not exercise any discretion at all to appoint counsel, and did not exercise any discretion under Johnsonto determineif appellant’s perceived mental illness made him unfit “to carry out the basic tasks needed to present the defense without the help of counsel.” Hadthetrial court exercised its discretion, it would have been obliged under Johnson to appoint counsel. In considering this point, it must be rememberedthatthe trial judge constructively terminated appellant’s pro se status when the judge decided that he would “[sit] in defense counsel’s seat to protect the rights of the defendant.” (13 RT 1029-1030.) By acting in this manner, the trial court implicitly found that appellant could not carry out the 51 basic tasks of defense without counsel. The only question pertinent to People v. Johnson, is whether appellant’s inability was due to his mental disorder. The record beforethe trial court was compelling proofthatit was. Both the public defender and the court agreed that appellant suffered from a mental disorder and that the disorder made it impossible for him to process information in a rational way, to tell the truth or control himself. This is precisely the kind of mental state that this Court found in Johnson was sufficient to require appointed counsel. (See Johnson, supra, 53 Cal4th at p. 532 [citing the defendant’s “disorganizedthinking, deficits in sustaining attention and concentration, impaired expressive abilities, anxiety and other common symptoms of mentalillness....”].) Andthe State,itself, in briefing in the court of appeal, characterized appellant’s pretrial behavior as “qrrational.” (Resp. Br.at p. 4.) Thetrial court’s failure to exercise its discretion to appoint counsel deprived appellantofthe assistance of counsel. Moreover, because complete deprivation ofthe right to counselis structural error (United States v. Cronic, supra, 466 U.S. at pp. 658-659.), the judgmentofthe court of appeal should be affirmed. 52 Ii. The Trial Court Abused Its Discretion In Denying Appellant A One-Day Continuance After The Court Granted Him The Right To Represent Himself. A. Relevant Facts Appellantfirst moved to represent himself on April 17, 2012, six days before trial. The court denied the motion because appellant wps not ready to proceedto trial. The next day, appellant again requested to represent himself and requested a two week continuance. That motion was denied on the groundthat appellant wasnot prepared to goto trial. On April 23, just before jury selection, appellant moved againto represent himself, which was again denied. The court began jury selection. On the next morning, April 24, appellant again movedto represent himself. (10 RT 480.) The court stated, “I would love for you to represent yourself, butyou’ve got to be ready to go right now.” (Jd.) The court then told appellant the following: “Okay. Mr. Espinoza, I want to make it clearif you represent yourselfyou are not going to get any special treatment. You are not going to get any continuances unless they are reasonable requests, which given the time frame we’ve given to the jurors we need to move | forward with this case. I’m not goingto be extending it beyondthat time limit I gave to the jurors...” (10 RT 482, emphasis added.) Appellant then filled out a Faretta form, which the court began to review with him. The following colloquy took place: THE DEFENDANT:Your Honor, can J ask a question? THE COURT:Ofcourse you can. 53 THE DEFENDANT:Metakingthe case today, can I at least get a continuance to tomorrow? THE COURT:No. THE DEFENDANT:Justto get everything, because he’s going to handoverthe files, Your Honor,... THE COURT:You havea copy ofthefile. THE DEFENDANT:No, but I’m asking whateverelse they may have that I may not have. THE COURT:Youarenotentitled to internal memorandumsabout howdifficult you are, you don’t get that. THE DEFENDANT:No,I’m asking about statements and videos, am I entitled to that stuff, Your Honor? THE COURT:Yes, you are. You will get a copy ofall of the discovery in this case which youalready have. MR. CAMPERI: And, Your Honor, J can assure the court I will go back andlookto seeif there is anything that I am unawareofatthis time and I'll bring it right over if there is something I am unaware of at this time. (10 RT 485-486.) The court of appealheld that the trial court’s refusal to give appellant the requested one-day continuance wasa reversible abuse of discretion. (Typed Opn.at pp. 21-23.) The court reasonedthat, while a courtmay deny a requestfor self-representation if it would delaytrial, “if the trial court, in its discretion, determines to grant the request for self-representation it must then grant a reasonable continuancefor preparation by the defendant.” (Id. atp. 22, quoting People v. Fulton (1979) 92 Cal.App.3d 972, 976.) 54 B. The Trial Court AbusedIts Discretion In Denying A One-Day Continuance. TheState argues that the trial court acted within its discretion by denying the continuances: Accordingto the State, while the trial court must grant a reasonable continuanceif it grants a Faretta motion, whenthetrial court grants an untimely Faretta motion, it may do so on the condition that there be no continuances. (Op.Br. at pp. 36-38.) Here, “the trial court did not grant appellant’s Faretta motion until after appellant clearly understood he would not obtain a continuanceby reason ofself-representation.” (/d. at p. 38.) The matter, however, is not so clear. On the morning of April 24, the court initially told appellant that he could represent himself “but you’ve got to be ready to go right now.” (10 RT 480.) The court then told appellant, “Tyjou are not goingto get any continuances unless they are reasonable requests ... [that will not] extend[] it beyond that time limit I gave to the jurors.” (10 RT 481, emphasis added.) By “reasonable requests,”the court apparently meantthat it would not grant a continuance beyond whenthe jury was dueback in court, which wasthe following day. (10 RT 448.) Momentslater, the court granted appellant’s Faretta motion. (10 RT 488, 494.) Immediately thereafter, appellant asked “to get a continuance to tomorrow.” Since the jury was due back the following day, it appeared that appellant was asking for the remainderofthe afternoonto collect thetrialfile and prepare. The court denied the request even though appellant’s further questions, and Mr. Camperi’s statement that he would checkto seeifthere 55 was other material in his office that had not been provided, indicated that appellant may not have hadthe entire casefile. This Court’s decision in People v. Valdez (2004) 32 Cal.4th 73, is dispositive. There, the defendant asserted his right to self-representation on the day ofjury selection. The court denied the motion as untimely and made for the purpose of delay. (/d. at p. 103.) When the defendantinsisted he had a right to represent himself, the trial court “indicated that it would allow defendant to represent himself if he was able to proceed with thetrial without delay.” (/d.) This Court then noted a critical fact: “[Thetrial court] did not, however, actually grant the Faretta motion.” Ud.) That fact wascritical because, as the Court explained, “Although a necessary continuance must be granted if a motion for self-representation is granted, it is also established that a midtrial Faretta motion may be denied on the groundthat delay or a continuance would be required.” (/d.) In the instantcase, the trial court advised appellant that the court would only grant a “reasonable request” for a continuance. It then granted appellant’s Faretta motion. Appellant then made what could only be considered to be a reasonable request: Appellant was unsure that he had the entire trial, and the public defender was similarly unsure that he had provided appellant with the entire file, including all statements and recordings. Appellant therefore made the eminently reasonable request for a continuance to the following day to make sure he had a completefile. In light of Valdez, oncethe trial court granted appellant’s Faretta motion, “a necessary continuance must be granted.” Appellant’s requested 56 continuance wasboth brief and necessary. The court abusedits discretion by denying that motion. The denial of a proper request for a continuance to prepare a defense constitutes an abuse of discretion and a denial of due process.” (People v. Cruz (1978) 83 Cal.App.3d 308, 324-325.) The erroneous denial of a defendant’s request for — a continuanceafter being granted in propria personastatusis “usually treated as prejudicial per se.” (People v. Hill (1983) 148 Cal.App.3d 744, 758.) The judgment of the Court of Appeal should be affirmed. CONCLUSION For the foregoing reasons, appellant respectfully requests that the - judgmentofthe Court of Appeal be affirmed. Date: September 21, 2015 R rlat /s/|Lawrence A. Gibbs Attorey for Appellant 57 CERTIFICATE PER CAL. RULES OF COURT, RULE8.204(c) I certify that this petition is produced in 13-point proportional type and (Ame () . 1A Date: September 21, 2015 /s Attorney for Appellant contains 13,998 words. PROOF OF SERVICE I declare that I am employed in the County of Alameda. I am over the age of eighteen years and nota party to this cause. My business address is P.O. Box 7639, Berkeley, California. Today, I served the foregoing AnswerBrief on the Merits on all parties in this cause by placing a true copy thereof enclosed in a sealed envelope with postage fully prepaid, in the United States mail at Berkeley, CA, addressed as follows: Office of Attorney General 455 Golden Gate Ave., #11000 San Francisco, CA 94102 Sixth District Appellate Program 100 N. Winchester Blvd., Suite 310 Santa Clara, CA 95050 Santa Clara County District Attorney 70 W. HeddingSt. San Jose, CA 95110 Clerk, Sixth District Court of Appeal 333 West Santa Clara St., #1060 San Jose, CA 95113 Santa Clara County Superior Court Criminal Division - Hall of Justice San Jose, CA 95113-1090 Zeferino Espinoza 2243 Angie Ave. San Jose, CA 95116 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on September 23_, 2015 in Berkeley, California. Ni A. C Lawrence A. Gibbs