PEOPLE v. ESPINOZARespondent’s Reply Brief on the MeritsCal.November 10, 2015 a Jn the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. ZEFERINO ESPINOZA,Jr., Defendant and Appellant. Case No. 8224929 SUPREME COURT FILED NOV 10 2015 Frank A. McGuire Clerk Deputy Sixth Appellate District, Case No. H039219 Santa Clara County Superior Court, Case No. C954850 The Honorable Paul Bernal, Judge REPLY BRIEF ON THE MERITS KAMALAD. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General JEFFREY M. LAURENCE Senior Assistant Attorney General LAURENCEK. SULLIVAN Supervising Deputy Attorney General RENE A. CHACON Supervising Deputy Attorney General BRUCE ORTEGA Deputy Attorney General State Bar No. 131145 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-1335 Fax: (415) 703-1234 e-mail: bruce.ortega@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page IMtrOCUCTION.........cseeceessesseeeeeescescsenceeceseessensensessscsseseeseaceaceasensaeesseessesaseseseees I ATQUMENL0.00... cesceecsseeeesssesesseseesceseesccssesessesssessessssssseosessenseensesassaseseesseseacess 2 I, Becausethetrial court did not terminate appellant’s self-representation status it had no Sixth Amendment obligation to appoint COUNSEL... eeeseeseeeesseeeesereseenessenees2 A. Appellant’s new claim is not fairly included in the question on review andis forfeited ..................08 4 B. Appellant was not denied the Sixth Amendment right to counsel following his voluntary abandonmentOftrial] 0...eeeeseecsssesetesssesetereseeseeess 6 II. Appellant’s claim that state law required the appointment of counsel is both forfeited and moot.............. 13 III. Thetrial court did not abuseits discretion in conditioning the grant of appellant’s Faretta motion on appellant receiving no CONTINUANCE............cesesssetssseeeeeneeeeee 14 CONCLUSION 0.0... cceecsseeeceseceeeecescecctsseecesessessesessesesneesesssssessessessetenseaeesnessesens 16 TABLE OF AUTHORITIES Page CASES Faretta v. California (1975) 422 U.S. 806... cecseccsseseceseeseecsesssessesaeeeseseneessenssees 1,7, 8,9 Peoplev. Alice | (2007) 41 Cal.4th 668 oweseeueesaueaneneenecaneeeeeaseaeseeeeeeeesetenees 4,5 People v. Barnum . © (2003) 29 Cal.4th 1210 oe..eesseeesssserecssnecssseessesssnessssedLoaessceseeee 5 People v. Carson (2005) 35 Cal.4th 1 oeeeceeeceecessesesessessecseeseseenesssasesenesses 3, 9-10 People v. Clark (1993) 3 Cal.4th 99 ooccsscsseesseseesceeeeessseeressessneesees 2, 3, 6-9, 14 People v. Davis (1987) 189 Cal.App.3d 1177... eeecesseesssesseessesessesscesesssessessensesenons 8 People v. Estrada (1995) 11 Cal.4th 568 ooecssesceseessesseeseerseesneesseeseesseceseseneneeees 4,5 People v Jenkins (2000) 22 Cal.4th 900 .0......ceessssesssessesssssssssssesecseeeecseeacectsssetseeeeseees 14 People v. Parento (1991) 235 Cal.App.3d 1378.00... esssesscesseseteeeseeseeeesnseseseerees 5, 12-13 People v. Saunders (1993) 5 Cal.4th 580eeecscessescccsesscessesssserseseesesssssersesressseseesseeens 5 People v. Stansbury (1993) 4 Cal.4th 1017 woesessscseesseeseeesecsssecseeesesesesseseeasensesas 3, 8,9 People v. Valdez (2004) 32 Cal.4th 73 oo... cecsscsscsccecessereesssesseesecsecsseecesesseseeseeeseesesses 14 United States v. Olano (1993) 507 U.S. 725 ....ccssccssccssscstscsecsecseecaseeeseceneeceseeeanecseestereeserseseeas 5 ii TABLE OF AUTHORITIES (continued) Page STATUTES Penal Code 0 .ee3, 13 CONSTITUTIONAL PROVISIONS United States Constitution Sixth Amendment...deeeeceesssnseeesecsevsceceseneeeees 1,2, 3, 4, 13 COURT RULES California Rules of Court TUE 8.516......cccccccccsscccceccsescsssssscscssscceecessnscecessnsecessussessssescsseseseessence 4,5 ili INTRODUCTION Following a knowing and voluntary waiver of counsel under Faretta v. California (1975) 422 U.S. 806 (Faretta), a pro se defendant’s voluntary abandonmentoftrial forfeits constitutional trial rights of an accused to personal presence, confrontation of adverse witnesses, and the presentation of a defense through counsel, until such time as the defendant appears in court to personally exercise those rights in thetrial itself. Appellant does not dispute that he forfeited his right to presence; indeed,hestates that “is not at issue here.” (ABOM 36,fn. 4.) Nor does appellant contest that a pro se defendant’s voluntary abandonmentoftrial can forfeit the rights to confrontation and to the presentation of a defense through counsel. Appellant argues instead that his abandonmentoftrial forfeited his right to self-representation, and that the trial court constructively so found by itself serving as his counsel for the balance oftrial. “There is general agreement,” his argumentruns,“that, when thetrial court terminates a defendant’sright to self-representation for misconduct, the right to counsel endures and counsel must be appointed.” (ABOM 4.) From that principle, he derives a conclusion that “[t]he trial court’s error... was in undertaking the appellant’s representation itself, rather than appointing counsel for that task.” (ABOM 23.) Because, according to this claim,the trial court’s representation of appellant was a de facto revocationofhisprosestatus, the court’s continuation oftrial without appointing the counsel demanded by the Sixth Amendmentwasstructural error. (ABOM 3-4, 21-24, 25-26, 30-48.) — . In addition to a Sixth Amendmentrequirementthat he be appointed counsel whenthe court constructively terminated his Faretta rights, appellant argues state law required the appointment of counsel because appellant did not meet the required standard of competency due to mental illness. (ABOM 24,48-52.) Lastly, appellant contendsthat once the trial court granted him the right to represent himself it was obligated to grant him a necessary continuance to prepare. (ABOM 24, 53-57.) “Under this standard, as the court of appeal properly held, denial of a one-day continuance wasan abuse of discretion.” (ABOM 24.) Appellant’s claimsare baseless. First, appellant’s claimthat he forfeited his right to self-representation when he abandonedtrial andthat the trial court constructively so foundby itself serving as his counsel for the balanceoftrial is a new claim thatis not fairly included in the question on review. It is thus forfeited. It is also without merit as the trial court did not act as appellant’s counsel and did notconstructively revoke appellant’s self-representation status, requiring the appointment of new counsel. Second, appellant’s new claim that state law required appointment of counsel whenthetrial court terminated his Faretta rights is both forfeited and moot because the court did not terminate appellant’s Faretta rights. Third, appellant’s claim that the trial court abusedits discretion in denying his request for a one-day continuance is premised on a misreading of the record. ARGUMENT I. BECAUSE THE TRIAL COURT DID NOT TERMINATE APPELLANT’S SELF-REPRESENTATION STATUS IT HAD NO SIXTH AMENDMENT OBLIGATION TO APPOINT COUNSEL Appellant’s Sixth Amendmentclaim is novel. Heasserts that the Court of Appeal never “fully understood the case law.” (ABOM 25.) In reality, however, he has jettisoned altogetherthe constitutional claim he raised below (see Ct.App. AOB 5-10), in order to assert a new Sixth Amendmentclaim that his Faretta rights were revoked without the required appointment ofnew counsel—basedon different case law. He now invokes three of this court’s cases—People v. Clark (1992) 3 Cal.4th 41 (Clark), Peoplev. Stansbury (1993) 4 Cal.4th 1017 (Stansbury), and People v. Carson (2005) 35 Cal.4th 1 (Carson)—and arguesthat his abandonmentof trial was not “a ‘conscious decision to force the prosecution to its proof,’” but ““‘a deliberate course of action designed to cause as muchdisruption as possible’”and “intended to ‘interject error and delay in the proceedings.’” (ABOM 33, quoting Clark, supra, 3 Cal.4th at p. 116; Stansbury, supra,4 Cal.4th at p. 1046.) Hestates that “[n]ot only was appellant’s conduct obstructive and intended to delay and sow errorinto the trial, but it threatened to produce, and did in fact produce, a one-sided proceeding. This threatened a core concept of a criminaltrial.” (ABOM 41.) He further arguesthat the trial court so found becauseit ruled upon his abandonment that “the purpose for which he chose to not cometotrial was evasion of the trial 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 uptotrial that the court would terminate this jury trial, send the jurors homeandthen when he comesin in a month he wouldtry to delay the trial again for another three years.” (11 RT 608.) In this roundabout manner, appellant arrives at an argumentthatit is constitutionally irrelevant whether or not he voluntarily abandonedthetrial ~ for the Sixth Amendment claim he now presses. Accordingto appellant’s current position,“[tJhe 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 whether the defendanthas forfeited his right to be present and confront witnesses, a different analysis governs with respect to a pro se defendant’srightto counsel. The relevant question is whether the pro se defendant has forfeited his right to self-representation. If the right to self-representation has been forfeited, counsel must be appointed.” (ABOM 25,originalitalics.) A. Appellant’s New Claim Is Not Fairly Included in the Question on Review andIs Forfeited For two reasons, the court need not reach appellant’s argument. First, the claim is notfairly included in the issue upon which the court granted review. (Cal. Rules of Court, rule 8.516(b)(1); People v. Alice (2007) 41 Cal.4th 668, 677-678 (Alice); People v. Estrada (1995) 11 Cal.4th 568, 580 (Estrada).) The court granted respondent’s petition for review in the absence of an answerorcross-petition by appellant. The question raised in the petition is whether a voluntary and intentional absenceofa self- represented defendantforfeits trial rights otherwise afforded by the defendant’s presence and authorizes continuedtrial, without a knowing and intelligent advanced waiverofthe rights. That question encapsulates the | judgmentofthe Court of Appeal, whichheldthetrial court erred in proceedingwith trial in the absence of appellant or defense counsel because appellant did not knowingly waive his fundamentaltrial rights. (Typed Opn.at pp. 2, 15-19.) Respondent’s petition for review andbrief on the merits addressed the question presentedin the context of the holding by the Court of Appeal, not in the context of any tagalong issue about the superior court judge erroneously acting as appellant’s counsel at the trial and thereby actually or constructively revoking appellant’s Faretta rights. — Asappellant’s brief makesclear, his current argument does not involve mere differences in emphasis about the proper procedure for determining when it is proper to proceed withtrial after its abandonment by a self-represented defendant. Instead, his argument amounts to a brand new Sixth Amendmentdenial-of-counsel claim, focused on facts and legal principles separate from those relevantto the question on which review was sought. Whetherthe trial court made a de facto revocation ofFaretta rights - following appellant’s abandonmentofthetrial is not inherent in whether that court constitutionally orderedtrial to proceed in the first place. Accordingly, the issue is not properly raised in this case and need not be considered. (Cal. Rules of Court, rule 8.516(b)(1); Alice, supra, 41 Cal.4th at pp. 677-678; Estrada, supra, 11 Cal.4th at p. 580.) Second, appellant’s claim of error was neither raised nor decided below and wasforfeited. “No proceduralprinciple is more familiar. . than that a constitutionalright,’ or a right of any othersort, ‘may be forfeited in criminal as well as civil cases by the failure to maketimely assertion of the right before a tribunal having jurisdiction to determineit.” (United States v. Olano (1993) 507 U.S. 725, 731, internal quotation marks omitted; accord, People v. Saunders (1993) 5 Cal.4th 580, 590.) Self- represented defendants are subject to the forfeiture doctrine, including the loss of fundamental constitutional rights. (People v. Barnum (2003) 29 Cal.4th 1210, 1224 & fn. 2.) If appellant thought he was denied counsel based on a de facto Faretta revocation, he should have said so promptly on his return to the trial court. Appellant did not raise any such claim oferror on his motion for a new trial—even with the assistance of counselat the time. As we pointed out in our respondent’s brief in the Court ofAppeal (Ct.App. RB 10, fn. 2), appellant instead tacitly concededin thetrial court that he voluntarily absented himself for the purpose of evadingtrial and observed that People v. Parento (1991) 235 Cal.App.3d 1378 (Parento), “held that a [voluntarily absent] defendant can waivehis right to counsel and his right to be present.” Rather than contend this factual scenario did not apply to him, appellant argued Parento was wrongly decided. (3 CT 463.) Similarly, appellant’s present issue was not before the Court of Appeal, nor addressedin its opinion. Indeed, of the three cases by this court cited in appellant’s brief for his new argument, only Clark appears in the opinion of the Court of Appeal, and then only in connection with its separate holding that appellant was improperly denied a one-day continuance. Appellant forfeited his claim. B. Appellant Was Not Denied the Sixth Amendment Right to Counsel Following his Voluntary Abandonmentof Trial In Clark, supra, 3 Cal.4th 41, trial resumed after a three-day weekend, and the pro se defendant, out of the presence of the jury andpriorto resuming his cross-examination of a prosecution witness, made a number of motions. (/d. at p. 113.) Some involved the manner in which the court would allow him to question witnesses and handle exhibits, and the court madeseveral rulings against the defendant. The defendant also moved to recuse the prosecutor, and during the course of the defendant’s “rambling discourse” on that motion, “the court twice warned him not to abuse his ‘pro per status’ or it would be revoked. After allowing the defendant to discuss at length his unfocused motion to recuse, the court deniedit as ‘frivolous.’ The defendanttried to continue arguing the issue. The court stated it had alreadyruled andthat the defendant wasnotto speak further on that point. It asked if the defendant was ready to proceed. The defendant responded,‘I’m ready to proceed with this motion[the one the court hadjust ruled upon]. [{] You have not heard this motion.’” (Jd. at pp. 113-114.) Thetrial court ordered the jury brought into the courtroom, and told the defendanthe could continue cross-examining the prosecution witness. The defendant immediately stated, “‘ Your Honor, the defense stands mute throughouttherestofthetrial.’” (/d. at p. 114.) After thetrial court excused the jury it foundthat the defendant had renouncedhis pro per status, and it ordered counsel to resume conducting the defense. Counsel represented the defendantfor the rest of the day. (/bid.) The following day, counsel advised the court that the defendant had reconsidered his position and was nowwilling to continue cross-examining the prosecution witnesses. The court opinedthat the defendant was attempting to place the court in a dilemma and was “playing games,” but agreed to give the defendant another chanceto represent himself. The court reinstated the defendant’s in propria personastatus, and warnedthat any further misbehavioror delaying tactics would result in revocation ofthat status. Ubid.) This court rejected the defendant’s claim that the trial court improperly revoked his pro se status because he hada right to conducthis defense by standing mute: Throughoutthetrial, defendant had frequently and vehemently madeclear that he desired to prove that others had committed the crimes. He had been vigorously defending himself, and indeed had clearly been planning to continue his detailed cross-examination of the pathologist as late as the court’s ruling on the recusal motion. Then he apparently became disgruntled with the court’s rulings. In front of the jury, he suddenly stated an intent to stand mute. This statement was clearly not motivated by the sincere desire to withhold a defense; it was instead an attemptto either inject error into the case, or to pressure the court into reconsideringits earlier rulings, or, most likely, both. It was merely one ofa series of attempts to manipulate or coercethetrial court. The court was not required to tolerate this conduct. As Faretta itself made clear, a constitutional right of self- representation “is not a license to abuse the dignity of the courtroom.” (Faretta v. California, supra, 422 U.S. 806, 835, fn. 46.) Thus,“the trial judge may terminate self-representation by a defendant whodeliberately engages in serious and obstructionist misconduct.” (/d. at p. 834, fn. 46.) (Clark, supra, 3 Cal.4th at pp. 114-1 15.) This court concluded that Faretta issues often presenttrial courts with tough judgmentcalls, and that courts are entitled to deference on such issues. Where a court justifiably views a defendant’s statement to “stand mute”not as a conscious decision to force the prosecutionto its proof, but as part of a deliberate course of conduct designed to cause as much disruption as possible, the court may properly revoke the defendant’s Faretta status. (Clark, supra, 3 Cal.4th at p. 116.) “As the court stated in People v. Davis (1987) 189 Cal.App.3d 1177, 1187, ‘Trial courts are not required to engage in gameplaying with cunning defendants who would present Hobson’s choices.’ Faretta v. California, supra, 422 U.S. 806, held generally that a defendant may represent himself. It did not establish a gamein which defendant can engagein a series of machinations, with one misstep by the court resulting in reversal of an otherwise fair trial.” (Clark, supra, 3 Cal.4th at p. 116.) In the second ofthis court’s cases cited by appellant, Stansbury, supra, 4 Cal.4th 1040, the pro se defendant twice assertedly tried to stand mute, but each time the trial court told him that it would strip him ofhis pro se status unless he put on a defense. (Jd. at pp. 1040-1041.) This court followed Clark and rejected the defendant’s contentionthatthe trial court substantially impaired his ability to conduct his defense by threatening to revokehis prose status in a dispute. This court recognized that in some circumstances a defendant representing himself, unlike counsel, may elect to refuse to participate actively in his defense, but that this was notthe situation beforeit: Asin People v. Clark, supra, 3 Cal.4th at page 114, defendant had eagerly sought to defend himself and had a particular defense strategy in mind when he becamedisgruntled with some of the court’s rulings and with his assistant counsel’s attitude. He admitted that he would be kidding himself to think he had any chanceofprevailingat trial if he put on no defense; rather, he soughtto interject errorinto the trial so that the conviction would be reversed on appeal. At the very least, he was operating under the misapprehension that he wassureto prevail on appeal. Both the court and defendant’s assistant counsel expressed the opinion that defendant was simply playing for time. (Stansbury, supra, 4 Cal.4th at p. 1044.) In Stansbury, the court’s examination of the record supported its view that the defendant’s desires to stand mute were insincere and manipulative. The court concluded: “In sum, we see no improperinterference with defendant’s right to represent himself. Defendant used the threat to stand mute as a weapon whenthe court ruled against him. The court was within its power to counter that apparently insincere threat with its threat to revoke defendant’spro se status, which, after all, was not inviolate. (Faretta, supra, 422 U.S.at p. 835, fn. 46; People v. Clark, supra, 3 Cal.4that p. 115.)” (Stansbury, supra, 4 Cal.4th at p. 1046.) | In the third case comprising appellant’s trilogy of authority, Carson, supra, 35 Cal.4th 1, the defendant’s investigator mistakenly gave him discovery material to which he wasnotentitled, including witness addresses and telephone numbers,and criminal history records. (Jd.at p. 12.) In light of the defendant’s improper acquisition of this discovery, and his “antecedent attempts to suborn perjury, fabricate an alibi, and possibly intimidate a prosecution witness,” the trial court terminated his Faretta right. (/d. at pp. 6, 13.) This court ruled that “serious and obstructionist out-of-court misconduct”that threatens to “subvert ‘the core conceptof a trial’ [citation] or to compromise the court’s ability to conducta fairtrial [citation],may lead to forfeiture of the right to self-representation. (Jd. at p. 10.) This court offered guidance on when out-of-court conductby a pro se defendant may subvert the core conceptofa trial or compromisethe court’s ability to conduct a fair trial and sanction termination of the defendant’s Faretta rights. (Carson, supra, 35 Cal.4th at p. 10.) First, the trial court should consider “the nature of the misconduct and its impact onthetrial proceedings.” (Ibid.) Thetrial court should also consider“the availability and suitability of alternative sanctions” and “whether the defendant has been warnedthat particular misconduct will result in termination of in propria personastatus.” (/bid.) “Additionally, the trial court may assess whetherthe defendant has‘intentionally sought to disrupt and delay his trial.’ [Citations.] In manyinstances, such a purposewill suffice to order termination ....” ([bid.) The court remandedthe caseto the trial court for a hearing on whether defendant’s Faretta rights were properly terminated. (Carson, supra, 35 Cal.4th at p. 14.) At most, Clark, Stansbury, and Carson might be authority that the court would not have committed error by revoking appellant’s pro per status and appointing counsel. Of course, that principle does not lead to any conclusionthat the court here revokedpetitioner’s Faretta status, let alone to a view that a court commits structural error by not revoking pro se status when the defendant voluntarily abandonstrial. In an attemptto bridge that yawning gap in the argument, appellant asserts the trial court “acted as self-appointed counsel for appellant” and “constructively revoked appellant’s right to self-representation.” (ABOM 4.) “This muchis clear from the fact that the court did not permit appellant to control his defense through non-participation. Instead of permitting appellant to exercise and control a defense strategy of non-participation, the court took the unusualstep, throughout trial, of serving as appellant’s counsel.” (ABOM 38.) Appellant recountsa trial hearing concerning the prosecution’s proffer of certain evidence in which the court stated thatit “thas also taken into consideration the argumentlikely that the defendant/or his defense attorney would have madeifthey had been present....” (11 RT 624.) Later, before another in limine evidentiary hearing, thetrial judge stated: “The court is going to conduct a 402 hearing as if defense were here and had objectionsto things that this officer would be testifying to and the court is having this hearing to protect the rights of the defendantin his absence.” (11 RT 662-663.) Still later, referring to the instructions given by the court to the jury, the trial judge stated, “The Court took into consideration arguments, requests, and objections that the defense would 10 have made.” (11 RT 761-762.) And appellant points to remarksby thetrial judge in denying appellant’s motion for new trial, where the court stated: In Mr. Espinoza’s absence duringthetrial, I, as a court, voiced a defense position on behalf of the defendant as if he were here duringthetrial. I iterated what the defense would wantonall substantial issues and motions. I basically sat in defense counsel’s seat to protect the rights of the defendant, and I took all possible, reasonable defense positions into account before I ruled on any issues that were before the court in the defendant’s absence. So the court did everything it could given the situation that defendant put the court in to make sure that the court was following the law, completing thetrial, and making sure that the jurors were deciding the issue, on the right issues before them and not on inappropriate issues. So forall ofthose reasons the motion for newtrial is denied. (13 RT 1029-1030.) Thetrial court simply considered the position the defense would likely take in ruling on the prosecution’s various submissions. Appellant cites no decisions holding the Faretta right ofself-representation is considered revoked if a judge makesa rulingata trial in absentia after considering, hypothetically, the position the defense might have taken if there had been representation of an absconding pro se defendant. We know of no such authority. It would be,to say the least, ironic if a court’s bending backwardto afford due process to an abscondingprose at a trial in absentia were deemedreversible per se as appellantclaims. The court’s remark, such as its figurative commentaboutsitting at counsel’s chair in considering motions andothertrial issues, does not suggest it represented appellant as his counsel. Quite to the contrary, the remarks confirm that it impartially presided as the judge deciding questions of law despite appellant’s efforts to derail thetrial altogether. Moreover, the record doesnot hint at the possibility the jury viewed the court as somehowacting as counsel for petitioner. The court nowhere Il ordered appellant’s Faretta right revoked, or appointed itself (or anyone else) as counsel(or cocounsel or advisory counsel). The court did not purport to conduct any defense. It did not cross-examine prosecution witnesses, did not call defense witnesses, did not make defense motions, and did not present argument. Its actions are not evidence ofjudicial impropriety, or of interference with the defense, and certainly not of any revocation of appellant’s Faretta right. The court exercised its inherent powers to control the proceedings to makethetrial fundamentally fair. That action fully honors a defendant’s desire for self-representation. Parento, supra, 235 Cal.App.3d 1378 also validates the trial court’s actions. There, the defendant, who hadpreviously chosen to represent himself, requested appointment of counsel and a continuance on the day of trial. (/d. at p. 1380.) When the requests were denied, the defendant refused to participate further in the proceedings and voluntarily absented himself from the trial. (/d. at pp. 1380-1381.) The trial proceedings continued in his:absence without the appointment of defense counsel. (Jd. at p. 1380.) On appeal, the defendant argued that it was errorforthetrial court to proceed with trial in his absence or without the appointment of counsel. (/bid.) The Court of Appealrejected this claim. (/d. at pp. 1381- 1382.) In doing so, the Parento court recognized that a noncapital, self- represented defendantnot only has a right to conduct a defense by nonparticipation, but also has the right to absent himself from the proceedings. (/d. at p. 1381.) Parento concluded: “There is no question but that a defendant’s right to effective counsel is violated if his attorney fails to attend the proceedings. Where a defendant has chosen to represent himself, however, he is entitled to conduct that defense in any mannerhe wishes short of disrupting the proceedings, and thusis free to absent himself physically from trial. If, as here, that choice was voluntary,it will be respected. It follows that a defendant whohas exercisedhis right of 12 self-representation by absenting himself from the proceedings, may not later claim error resulting from that exercise.” (/d. at p. 1382.) Appellant seeks to limit Parento. He claims the decision “was explicitly 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 continued to act as counsel, and his right to self-representation was therefore not subject to forfeiture.” (ABOM 34.) He misreads Parento. Parento abscondedafter essentially daring the trial court to conductthetrial without him: “Just do it without me then. That’s what you do.... You just write me a letter when it’s over. That’s what you do.” (Parento, supra, 235 Cal.App.3d at p. 1380, fn. 2.) The Court of Appeal did not hold the defendant made a consciousstrategic decision to put the prosecutiontoits proof, nor did the court address whether the defendant’s self-representation was subject to forfeiture. Trial courts on occasion mustinterpret and apply Faretta to vindicate legitimate rights of a pro se defendant while at the same time taking measures to ensurethetrial does not becomea charade. Here, appellant’s actions presented the court with a “judgmentcall” that he voluntarily abandonedthetrial. The court honored appellant’s self-representation right rather than revoke it and appoint counsel for him. Nothing in the Sixth Amendmentprevented it making that choice. Thetrial of appellant properly proceeded pursuant to Penal Code section 1043 without his knowingandintelligent waiveroftrial rights or an appointment of counsel. IJ. APPELLANT’S CLAIM THAT STATE LAW REQUIRED THE APPOINTMENT OF COUNSEL Is BOTH FORFEITED AND MOOT Aswith his Sixth Amendment claim, appellant never argued in the Court of Appeal that state law required the appointment of counsel because he was mentally ill and did not meetthe state standards of competence. He | should be held to have forfeitedthat claim. In any event, as argued in the 13 text, the trial court nowhere revoked appellant’s self-representation status. Accordingly, this court need not determine whether appellant was mentally ill or whether in light of such an illness, state law would require the appointmentofcounselifthe trial court had terminated his right self- representation. Ill. THE TRIAL CouRT DID NOT ABUSEITS DISCRETION IN CONDITIONING THE GRANT OF APPELLANT’S FARETTA MOTION ON APPELLANT RECEIVING NO CONTINUANCE Thetrial court consistently ruled that it would not grant appellant’s untimely Faretta motions if appellant required a continuanceto represent himself. The court granted the Faretta motion while trial was in progress—butonlyafter the court explicitly conditioned the granting of the motion on appellant not receiving an immediate continuance, even for one day. (10 RT 480-487, 492-494.) The law permits this. (Clark, supra, 3 Cal.4th at p. 110; People v Jenkins (2000) 22 Cal.4th 900, 1039-1040; People v. Valdez (2004) 32 Cal.4th 73, 103 (Valdez) {a trial court’s authority to deny a Faretta motion on the ground thatit is untimely necessarily includesthe authority to condition the grant of the motion on the defendant’s agreementthat a grant of the motion would notresult in delay].) Appellant disputes that the trial court conditioned his Faretta status on his agreementthattrial resume immediately. (ABOM 54-58.) Appellant cites Valdez for the proposition that when a Faretta motionis granted a necessary continuance must also be granted. Appellant asserts that the record showsthat (1) thetrial courttold appellant that it would only grant a “reasonable request” for a continuance; (2) the court then granted appellant’s Faretta motion; and (3) appellant made, and the court denied, appellant’s reasonable request fora one-day continuance. (ABOM 57.) 14 The record does not show a denial of a continuanceafter appellant’s Faretta motion was granted. To the contrary, it shows when appellanttold the court he needed two weeksto prepare fortrial if he represented himself, the court respondedthat this was why appellant could not represent himself. (10 RT 476-477.) Moments later, the court told appellant that it would give him a fair trial andreiterated that it would permit him to represent himself only if he was “ready to goto trial now.” (10 RT 480.) The court told appellant that he had two options: (1) trial with counsel, or (2) self- representation without a continuance. The court stressed, “I can’t continue this case.” (10 RT 480.) Appellant stated, “I will represent myself, your Honor.” (10 RT 480.) The court gave appellant a Faretta waiver form, and admonished him: THE COURT: Okay. Mr. Espinoza, I want to makeit clear if you represent yourselfyou are not going to get any special treatment. You are not going to get any continuance unless they are reasonable requests, which given the timeframe we ‘ve given to thejurors we need to moveforward with the case. I’m not going to be extending it beyond that time limit I gave to the jurors. You need to get your own witnesses here without anybody’s assistance. If you can’t find them orlocate them,if they don’t agree to comein, if they’re late because their bus didn’t pick them up we’re going without them. So I want to make sure you understandthat. (10 RT 481-482, emphasis added.) Whenthe court said appellant was not going to get any continuance unless it was a reasonable request, the court madeclear it would not entertain a continuance motion beforetrial resumed. In context, the court merely indicated after trial resumed it would consider a reasonable request for a continuancethat did not delay the trial outside the trial time period the court had given the jurors. This is clear because some 40 minutes later, after appellant had reviewed the Faretta form and before the court granted the Faretta motion, appellant asked the court, “Me taking the case today- 15 can at least get a continuance to tomorrow?” (10 RT 485.) The court said “no.” Appellant continued to seek to represent himself, and the court granted him prosestatus. The trial court did not abuse its discretion by conditioning the grant of appellant’s Faretta motion on there being no continuance even for one day ofthe'trial then in progress. CONCLUSION The judgmentofthe Court ofAppeal should be reversed. Dated: November9, 2015 BO:er SF2015200080 20783954.doc 11/9/15 Respectfully submitted, KAMALAD. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General JEFFREY M. LAURENCE Senior Assistant Attorney General LAURENCEK. SULLIVAN Supervising Deputy Attorney General RENE A. CHACON huewit. Attorney General BRUCE ORTEGAib Deputy Attorney General Attorneysfor Respondent 16 CERTIFICATE OF COMPLIANCE I certify that the attached REPLY BRIEF ON THE MERITSusesa 13 point Times New Romanfont and contains 5,017 words. Dated: November 9, 2015 KAMALAD. HARRIS teeat.of California BitesORTEGAone Deputy Attorney General Attorneysfor Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Espinoza,Jr. No.: S$224929 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member'sdirection this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney Generalfor collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office ofthe Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same dayin the ordinary course of business. On November 10, 2015, I served the attached REPLY BRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Lawrence A. Gibbs Santa Clara County Superior Court Attorney at Law Criminal Division - Hall of Justice P.O. Box 7639 Attention: Criminal Clerk's Office Berkeley, CA 94707 191 North First Street Attorney for Appellant Zeferino Espinoza, Jr. San Jose, CA 95113-1090 (2 copies) Sixth District Appellate Program 95 South Market Street, Suite 570 The Honorable Jeffrey F. Rosen San Jose, CA 95113 District Attorney Santa Clara County District Attorney's Office Sixth Appellate District 70 W. Hedding Street Court of Appeal ofthe State of California San Jose, CA 95110 333 West Santa Clara Street, Suite 1060 San Jose, CA 95113 I declare under penalty of perjury underthe lawsofthe State of California the foregoingis true and correct and that this declaration was executed on November10, 2015, at San Francisco, California. og a7 — Maggie Melton iee eae Declarant ¥ Signature SF2015200080 41416139.doc
