People v. Barnum

—We granted review to consider a rule, rooted in two Court of Appeal decisions—Killpatrick v. Superior Court (1957) 153 Cal.App.2d 146 [ 314 P.2d 164 ] (Killpatrick), and People v. Kramer (1964) 227 Cal.App.2d 199 [ 38 Cal.Rptr. 487 ] (Kramer)—declaring that a trial court is required to advise a defendant who represents himself or herself of the privilege against compelled self-incrimination before such a defendant is called by the People as a witness in their case-in-chief or testifies in his or her own defense.

The Court of Appeal below rejected the Killpatrick-Kramer rule, reasoning that it was not well founded, and in any event was not viable after Faretta v. California (1975) 422 U.S. 806 [ 95 S.Ct. 2525 , 45 L.Ed.2d 562 ] (Faretta), which held that under the Sixth Amendment to the United States Constitution a defendant not only has a right to the assistance of counsel, but also the right to represent himself or herself.

We granted review to determine whether the Killpatrick-Kramer rule is valid and, if so, what standard of prejudice applies when it is violated.

As we shall explain, we conclude that the Killpatrick-Kramer rule has not been undermined by Faretta. Whereas Faretta is based on the United States Constitution alone, the Killpatrick-Kramer rule largely arises out of California law. Although Faretta does not require a trial court to advise a self-represented defendant of the privilege against compelled self-incrimination, neither does it prohibit such an advisement.

Nonetheless, we conclude that the Killpatrick-Kramer rule is unsound. That rule does not have any counterpart in the federal courts or in the courts of the vast majority of our sister states. The general rule is that a trial court ordinarily is not required to give any advisement to a self-represented defendant who chooses to represent himself or herself after knowingly, intelligently, and voluntarily forgoing the assistance of counsel. The Killpatrick-Kramer rule has existed for many years as a lone exception to this general rule of no mandatory advisement, requiring a trial court to advise such a defendant of the privilege against compelled self-incrimination, but of no other right, no matter how important. Justification for singling out this privilege alone for such differential treatment never has been clear, and, upon full consideration, simply cannot be discerned. Indeed, since Faretta, the trial court has been required to make a defendant seeking to represent himself or herself aware of the dangers and disadvantages of self-representation, which include the defendant’s inability to rely upon the trial court to

For all of these reasons, we reject the Killpatrick-Kramer rule. We therefore need not address the standard of prejudice for its violation.

Accordingly, we conclude that we should affirm the judgment of the Court of Appeal.

The People charged defendant Mark Barnum, an inmate at High Desert State Prison in Lassen County, with battery on a noninmate (Pen. Code, § 4501.5) and obstruction of an executive officer (id., § 69). The People further alleged that defendant had suffered four prior felony convictions for second degree robbery (id., §§ 211, 212.5), thus triggering possible punishment under the “Three Strikes” law (id., § 667, subds. (b)-(i); see id., §§ 667.5, subd. (c), 1192.7, subd. (c)). Because the trial court found defendant indigent, it appointed counsel. Defendant pleaded not guilty to the charges and denied the allegations.

During jury selection, defendant made a motion, pursuant to People v. Marsden (1970) 2 Cal.3d 118 [ 84 Cal.Rptr. 156 , 465 P.2d 44 ], asking the trial court to relieve appointed counsel and to substitute other counsel. After a hearing in chambers, the trial court denied defendant’s motion. Relying in effect on Faretta, defendant then made a motion seeking to represent himself. During the pendency of his Faretta motion, defendant renewed his Marsden motion. After a hearing in chambers, the trial court denied defendant’s renewed Marsden motion. Then, after a hearing in open court, and in spite of its “high suspicion” that defendant’s “effort in this case has been solely to delay and to obstruct this trial,” the trial court granted defendant’s Faretta motion, having determined that he knowingly, intelligently, and voluntarily chose to forgo the assistance of counsel. Making plain the dangers and disadvantages of self-representation, the trial court warned defendant that it was “not going to be able to assist [him] or advise [him] on matters of law, evidence, or trial practice.” Defendant acknowledged the trial court’s warning, responding, “That is true,” and nevertheless chose to continue to seek to represent himself. The trial court relieved appointed counsel, whom it then appointed as standby counsel.

In his defense, defendant presented a different version of the encounter and of the events leading up to it. Defendant testified on his own behalf, without advisement by the trial court of his privilege against compelled self-incrimination. In direct examination in the form of narrative, defendant described an incident at dinner on the day in question: Along with other inmates, defendant and Hendricks were engaged in a discussion about the late rap music artist Tupac Shakur. Cartier interjected that Shakur was “six feet deep” where he belonged, and Hendricks replied that John Wayne was “six feet deep” where he belonged. Not long thereafter, as Eubanks and Abella attempted to bring dinner to an end and met with resistance, Eubanks said, “We’ll be up . . .to your cell. We will see how tough you are.” When Cartier and Eubanks arrived, Cartier confronted defendant and pushed him hard, and defendant responded in self-defense. On cross-examination, the prosecutor sought to impeach defendant by probing into the events in question and by obtaining an admission that he had suffered the four prior felony convictions alleged against him. Defendant also called a number of inmates whose testimony largely supported his, including Hendricks, who had pleaded guilty to similar charges arising out of the same events. In addition, defendant called Sergeant Richard Berry, who testified that Cartier, Eubanks, and Abella failed to follow proper procedures in conducting the cell search.

In rebuttal, the People called defendant as a witness, again without advisement by the trial court of his privilege against compelled self-incrimination, and defendant took the stand. The prosecutor sought to impeach

After deliberations, the jury returned verdicts finding defendant guilty of battery on a noninmate and obstruction of an executive officer, and made findings that he had suffered four prior felony convictions. In doing so, however, the jury delivered the following note: “We, the Jury, believe that [defendant] is guilty on both counts. However, we also believe that the events were precipated [sz‘c] by improper handling of preceeding [szc] events and could have been prevented by the following of proper established protocols.”

After reappointing counsel with defendant’s consent, the trial court rendered judgment in accordance with the jury’s verdicts and findings. Under the Three Strikes law, defendant was sentenced to a term of imprisonment of 25 years to life on the charge of battery on a noninmate. Defendant received the same sentence on the charge of obstruction of an executive officer, but execution of the sentence was stayed pending successful completion of the sentence on the battery charge, the stay to become permanent thereafter (Pen. Code, § 654).

The Court of Appeal affirmed. It rejected the Killpatrick-Kramer rule, reasoning that it was not well founded and, in any event, no longer was viable after Faretta. It found that defendant had testified freely in his own defense and had taken the stand when called by the People in their rebuttal. Finally, it concluded that any violation of the Killpatrick-Kramer rule in this case did not require reversal, but was harmless beyond a reasonable doubt.

We granted defendant’s petition for review. In doing so, we limited the issues to whether the Killpatrick-Kramer rule is valid and, if so, what standard of prejudice applies when it is violated. Because, as we shall explain, we reject the Killpatrick-Kramer rule, we need not consider the standard of prejudice.

The Killpatrick-Kramer rule requires a trial court to advise a self-represented defendant of the privilege against compelled self-incrimination before he or she is called by the People as a witness in their case-in-chief or testifies in his or her own defense.

In Killpatrick, the Court of Appeal, on certiorari in a consolidated proceeding, annulled certain judgments of the trial court adjudging each of the

In Kramer, the Court of Appeal reversed a judgment of the trial court convicting the defendant of forgery. The defendant represented himself out of choice. After the People presented their case-in-chief, the trial court invited the defendant to testify in his own defense if he wished, but did not advise him of his privilege against compelled self-incrimination. (Kramer, supra, 227 Cal.App.2d at pp. 200-201.) Following Killpatrick, the Court of Appeal held that the trial court’s omission was erroneous and mandated reversal of the defendant’s conviction.

Originally, the Killpatrick-Kramer rule was based mainly in the privilege against compelled self-incrimination under what are now section 15 of article I of the California Constitution and section 930 of the Evidence Code. (See Killpatrick, supra, 153 Cal.App.2d at p. 148; Kramer, supra, 227 Cal.App.2d at p. 200.) Soon the rule was expanded to reach the analogous privilege under the Fifth Amendment to the United States Constitution. (See People v. Glaser (1965) 238 Cal.App.2d 819 , 828-829 [ 48 Cal.Rptr. 427 ].) This expansion of the rule coincided with the decision in Malloy v. Hogan (1964) 378 U.S. 1 , 3, 6 [ 84 S.Ct. 1489 , 1490-1491, 1492-1493, 12 L.Ed.2d 653 ], in which the United States Supreme Court held that the privilege under the Fifth Amendment was applicable to the states through the due process clause of the Fourteenth Amendment.

The Killpatrick-Kramer rule, of course, does not itself embody the privilege against compelled self-incrimination; rather, in purpose and effect it is a prophylactic measure. (See People v. Glaser, supra, 238 Cal.App.2d at p. 831; see generally Killpatrick, supra, 153 Cal.App.2d at pp. 149-150; Kramer, supra, 227 Cal.App.2d at pp. 201-203.) It is a judge-made “rule of procedure which requires notice to [a self-represented] defendant so as to protect and implement” the privilege. (People v. Glaser, supra, 238 Cal.App.2d at p. 831.)

The Killpatrick-Kramer rule thus finds its rationale in protection, based on a recognition that a self-represented defendant, unlike a defendant represented by counsel, does not have counsel available to protect his or her

In People v. Redmond (1969) 71 Cal.2d 745 [ 79 Cal.Rptr. 529 , 457 P.2d 321 ] (Redmond), we acknowledged the existence of the Killpatrick-Kramer rule as an exception (Redmond, supra, 71 Cal.2d at p. 758, fn. 3) to the general rule that “the judge ordinarily is not required to assist or advise” a “defendant who chooses to represent himself’ “on matters of law, evidence or trial practice” (id. at p. 758), but neither in Redmond nor in any other decision prior to the present one have we had the occasion to pass upon the validity of the Killpatrick-Kramer rale.

The Court of Appeal below rejected the Killpatrick-Kramer rule. It reasoned that the rale was not well founded, and in any event was not viable after Faretta. We shall consider each point in turn, beginning with Faretta.

We do not believe that the Killpatrick-Kramer rale has been undermined by Faretta.

To be sure, Faretta does not require a trial court to treat a self-represented defendant differently from a defendant represented by counsel but, quite to , the contrary, allows similar treatment. Specifically, Faretta holds that, under the Sixth Amendment, a defendant has a right to the assistance of counsel and also a right to represent himself or herself, and may do so after knowingly, intelligently, and voluntarily choosing to forgo the assistance of counsel. (Faretta, supra, 422 U.S. at pp. 812-835 [95 S.Ct. at pp. 2529-2541].) The trial court must make a defendant seeking to represent himself

Although Faretta does not require a trial court to advise a self-represented defendant of the privilege against compelled self-incrimination, neither does it prohibit such an advisement. Whereas Faretta is based on the federal Constitution alone, the Killpatrick-Kramer rule largely arises out of state law. The Court of Appeal termed the Killpatrick-Kramer rule “paternalistic . . . and, hence, anti -Faretta.” We think that this comment reads into Faretta what is not there. Faretta allows a defendant to stand unprotected by counsel, but does not bar assistance from the trial court. The Court of Appeal recognized as much, conceding that its rejection of the Killpatrick-Kramer rule did not “preclude a trial court from offering assistance . . . .”

Even though the Killpatrick-Kramer rule is not undermined by Faretta, we nonetheless believe that the rule, viewed on its own merits, is unsound. As we declared in Redmond, it is a principle deeply rooted in the law that a “defendant who chooses to represent himself assumes the responsibilities inherent in the role which he has undertaken,” and “is not entitled to special privileges not given an attorney . . . .” (Redmond, supra, 71 Cal.2d at p. 758; accord, People v. Smith (1985) 38 Cal.3d 945 , 957 [ 216 Cal.Rptr. 98 , 702 P.2d 180 ]; see, e.g., People v. Jenkins (2000) 22 Cal.4th 900 , 1039 [ 95 Cal.Rptr.2d 377 , 997 P.2d 1044 ]; People v. Noah (1971) 5 Cal.3d 469 , 479 [ 96 Cal.Rptr. 441 , 487 P.2d 1009 ]; People v. Williams (1970) 2 Cal.3d 894 , 909-910 [ 88 Cal.Rptr. 208 , 471 P.2d 1008 ]; People v. Robinson (1965) 62 Cal.2d 889 , 894 [ 44 Cal.Rptr. 762 , 402 P.2d 834 ];

It is from this principle that the general rule we spoke of in Redmond emerged, namely that “the judge ordinarily is not required to assist or advise” a “defendant who chooses to represent himself’ “on matters of law, evidence or trial practice.” (Redmond, supra, 71 Cal.2d at p. 758; accord, People v. Smith, supra, 38 Cal.3d at p. 957; see generally 5 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Trial, § 260, p. 401.)

Any attempt to justify the Killpatrick-Kramer rule—by a broad assertion that a self-represented defendant needs the trial court’s protection—would falter on the principle stated above, which allows such a defendant to act on his or her own, but also requires such a defendant to act at his or her peril. In all but the most unusual cases, a self-represented defendant, who necessarily is without counsel’s protection, could benefit by receiving protection from whatever source he or she might obtain it. But under the general rule we have cited, “the judge ordinarily is not required to assist or advise [such a defendant] on matters of law, evidence or trial practice.” (Redmond, supra, 71 Cal.2d at p. 758.)

Thus, any justification for the Killpatrick-Kramer rule evidently must arise from the privilege against compelled self-incrimination itself and from any mandate contained therein requiring the trial court to protect a self-represented defendant.

Neither Killpatrick nor Kramer, nor any of their progeny, explains why the privilege against compelled self-incrimination, alone among the rights enjoyed by a self-represented defendant, mandates protection by the trial court. Nor do we find an adequate explanation from any other source.

We recognize that the privilege against compelled self-incrimination has been viewed as “fundamental.” (E.g., United States v. Verdugo-Urquidez (1990) 494 U.S. 259 , 264 [ 110 S.Ct. 1056 , 1060, 108 L.Ed.2d 222 ] [speaking of the privilege under the Fifth Amendment]; People v. Rizer (1971) 5 Cal.3d 35 , 37 [ 95 Cal.Rptr. 23 , 484 P.2d 1367 ] [same]; see People v. Edwards (1991) 54 Cal.3d 787 , 809 [ 1 Cal.Rptr.2d 696 , 819 P.2d 436 ] [speaking of the privilege generally].) But other rights have been so ranked

No requirement has been imposed on the trial court to advise a self-represented defendant of any of these fundamental rights. Indeed, as stated above, in Powers, the United States Supreme Court implied that a trial court is not required to advise a self-represented defendant of the privilege against compelled self-incrimination insofar as it is based on the Fifth Amendment, at least not before such a defendant testifies in his or her own defense. Moreover, in People v. Jones, supra, 2 Cal.App.4th 867 , 873, the Court of Appeal held, in our view correctly, that a trial court is not required to advise a self-represented defendant of the right to testify—a right that is the mirror image of the privilege against compelled self-incrimination and accordingly is of equal dignity. (See 5 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Trial, § 260, p. 401.) If such a defendant may be allowed to exercise, or not to exercise, the right to testify, without advisement by the trial court, he or she likewise may be allowed to do the same with respect to the privilege against compelled self-incrimination.

One further aspect of the rationale for the Killpatrick-Kramer rule merits discussion. This rule is premised on the assumption that, because a right like the privilege against compelled self-incrimination may be lost only by waiver, and because a waiver is effective only if it is knowing, intelligent, and voluntary, the effectiveness of a waiver is ensured only if the trial court gives an advisement of what is to be relinquished.

Against the policy of stability, however, we must recognize that the Killpatrick-Kramer rule is not itself the privilege against compelled self-incrimination. Instead, it merely is a judge-made, prophylactic rule of procedure. We also must recognize that the Killpatrick-Kramer rule does not have any counterpart in the federal courts or in the courts of the vast majority of our sister states. Indeed, such a rule has been considered and rejected expressly in decisions such as State v. Lo Sacco (1987) 12 Conn.App. 481 [ 531 A.2d 184 ] and State v. Poindexter (1984) 69 N.C.App. 691 [ 318 S.E.2d 329 ]. In Poindexter, the court stated that the privilege against compelled self-incrimination “says no more than a person shall not be compelled to speak. It does not place upon the trial court the duty of informing a pro se defendant of his [or her] rights and privileges. In fact, ... a defendant who knowingly and intelligently elects to proceed pro se, ‘cannot expect the trial judge to relinquish his [or her] role as impartial arbiter in exchange for the dual capacity of judge and guardian angel of defendant.’ . . . [A] defendant who chooses to proceed pro se ‘does so at his [or her] peril and acquires as a matter of right no greater privilege or latitude than would an attorney acting for him [or her].’ ” (State v. Poindexter, supra, 69 N.C.App. at p. 694 [318 S.E.2d at p. 331], italics in original [speaking of the privilege under the Fifth Amendment].) The court in Lo Sacco, although opining that “it is sound judicial practice to advise a pro se defendant” of the privilege, likewise expressed its “unwilling[ness] to impose upon the trial court the burden of’ giving such an advisement. (State v. Lo Sacco, supra, 12 Conn.App. at p. 492 [531 A.2d at p. 190].)

For all of these reasons, we conclude that the Killpatrick-Kramer rule is invalid, and hereby reject it.

Because adherence to the Killpatrick-Kramer rule has been widespread among the lower courts and long-standing, however, the question arises whether we should apply our holding to the present case and to any

Of course, in disapproving the Killpatrick-Kramer rule, we simply hold that a trial court is not required to advise a self-represented defendant of the privilege against compelled self-incrimination. In any given case, the court remains free to provide such an advisement, so long as its words do not stray from neutrality toward favoring any one option over another. A trial court of course must proceed carefully in providing an advisement, but it may provide one if it deems it appropriate. (See Redmond, supra, 71 Cal.2d at pp. 758-759.)

Ill

Turning now to the case at bar, we conclude that the Court of Appeal properly affirmed the judgment of the trial court.

As we have explained in disapproving the Killpatrick-Kramer rule, although the trial court was not precluded from advising defendant, who represented himself, of his privilege against compelled self-incrimination before he testified in his own defense or took the stand when called by the People in their rebuttal, it nevertheless was not required to provide him with any such advisement. Prior to granting defendant’s Faretta motion, the trial court warned defendant that it was “not going to be able to assist [him] or advise [him] on matters of law, evidence, or trial practice,” and defendant acknowledged the warning, responding, “That is true.” As a result, defendant could not reasonably have expected the trial court to advise him of any of his rights, including his privilege against compelled self-incrimination.

Having noted the absence of any advisement by the trial court as to defendant’s privilege against compelled self-incrimination, and the absence of any indication that standby counsel may have offered such an advisement, the Court of Appeal concluded that defendant acted freely both in testifying

Kennard, J., Baxter, J., Werdegar, J., Chin, J., Brown, J., and Moreno, J., concurred.