People v. Rudd

Opinion

I. Introduction

On a Friday, a defendant with a 19-year record of felony and misdemeanor convictions requests to proceed in propria persona on the 58th day of the 60 days during which the case must be tried. The experienced judge is concerned that the defendant is using his right to proceed in pro se as a means to delay the trial. The defendant agrees that he will be ready for trial on the last day the case can be tried, which is the following Monday. On Friday, the judge then allows the defendant to proceed in pro se with the express understanding that the trial will proceed on the following Monday. The defendant promises to be ready to proceed on the following Monday. On the following Monday morning, the defendant announces he is not ready for trial. On the Monday morning, the defendant brings with him none of the sheriff’s reports and other legal materials he was provided on Friday that he will need for trial. On the Monday morning, the trial court vacates the defendant’s self-representation status and reappoints the deputy public defender who was ready to try the case on the preceding Friday. The defendant says nothing when his self-representation status is vacated and the deputy

On Monday, May 19, 1997, at 9:24 a.m. the cause was called for trial. The following transpired: “The Court: MA013546, Edgar Rudd, present in pro per in custody. Mr. Rudd, are you ready for trial? [¶] The Defendant: No, not right now. [¶] The Court: His pro per status is revoked. [¶] Mr. Bruckner is appointed to represent Mr. Rudd. Trial commences today. You are no longer pro per, Mr. Rudd. I told you on Friday that you had to be ready to go to trial. That is the only way pro per status would be granted. It won’t be continued.” Neither defendant nor his counsel objected to the order revoking the pro se status.

A. Timeliness Issues

Defendant argues that the trial court improperly revoked his right to represent himself at trial. In this regard, defendant argues he had an unqualified right to represent himself. A defendant has a federal constitutional right of self-representation. (Faretta v. California (1975) 422 U.S. 806 [ 95 S.Ct. 2525 , 45 L.Ed.2d 562 ]; People v. Marshall (1996) 13 Cal.4th 799 , 827 [ 55 Cal.Rptr.2d 347 , 919 P.2d 1280 ]; People v. Clark (1992) 3 Cal.4th 41 , 98 [ 10 Cal.Rptr.2d 554 , 833 P.2d 561 ]; People v. Burton (1989) 48 Cal.3d 843 , 852 [ 258 Cal.Rptr. 184 , 771 P.2d 1270 ].) The parties dispute whether the assertion of the right to proceed without counsel was timely. We conclude, given the facts in the present case, defendant’s opportunity to proceed pro se was not an unqualified right because of his delay in seeking to represent himself. The California Supreme Court has held, “[I]n order to invoke the right he must assert it within a reasonable time before the commencement of trial.” (People v. Marshall, supra, 13 Cal.4th at p. 827; People v. Clark, supra, 3 Cal.4th at p. 98; People v. Burton, supra, 48 Cal.3d at p. 852.) Thereafter, under California’s interpretation of Faretta, the trial court must exercise its sound discretion in granting or denying the motion based upon such factors as “the quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the

However, in Moore, the court recognized that the congressional adoption of and approval by President William Jefferson Clinton of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub.L. No. 104-132, § 104, 110 Stat. 1218 ) altered the Ninth Circuit “gloss” that had been “added” to Faretta in federal habeas corpus cases. (Moore v. Calderon, supra, 108 F.3d at p. 264) In Moore, the Ninth Circuit held: “Section 2254(d), as amended, prohibits issuing the writ unless the State court decision ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’ 28 U.S.C. § 2254 (d)(1). A state court decision may not be overturned on habeas review, for example, because of a conflict with Ninth Circuit-based law, but rather a writ may issue only when the state court decision is ‘contrary to, or involved an unreasonable application of,’ an authoritative decision of the Supreme Court. Childress v. Johnson, 103 F.3d 1221 , 1224-26 (5th Cir.1997); Devin v. DeTella, 101 F.3d 1206 , 1208 (7th Cir.1996); see Baylor v. Estelle, 94 F.3d 1321 , 1325 (9th Cir.1996).” (Moore v. Calderon, supra, 108 F.3d at p. 264.) In Moore, the Ninth Circuit panel then evaluated the timeliness requirement as discussed in Faretta. The Moore court held: “In Faretta, the Court twice described the timing of Faretta’s request to represent himself: it was made ‘weeks before trial,’ 422 U.S. at 835 , 95 S.Ct. at 2541 , and ‘well before the date of trial,’ id. at 807 .... The Court’s acknowledgment of the timing of Faretta’s request was neither a recitation of the background facts of the case nor obiter dictum-, instead, it is mentioned

B. Defendant Has Waived the Right to Raise the Issue of the Correctness of the May 19, 1997, Order Revoking His Pro Se Status

We conclude that defendant has waived his objection raised for the first time on appeal to the May 19, 1997, order revoking his pro se status. The California Supreme Court has repeatedly held that constitutional objections must be interposed before the trial judge in order to preserve such contentions for appeal. (People v. Williams (1997) 16 Cal.4th 153 , 250 [ 66 Cal.Rptr.2d 123 , 940 P.2d 710 ] [objection that admission of gang paraphernalia violated defendant’s associational rights under the First and Fourteenth Amendments waived when not presented in trial court]; People v. Padilla (1995) 11 Cal.4th 891 , 971 [ 47 Cal.Rptr.2d 426 , 906 P.2d 388 ] [failure to request a particular instruction where there is no sua sponte duty to instruct waived due process contention]; People v. Rodrigues (1994) 8 Cal.4th 1060 , 1116, fn. 20 [ 36 Cal.Rptr.2d 235 , 885 P.2d 1 ] [the defendant’s federal constitutional due process, fair trial, reliable guilt determination claims concerning the admissibility of a videotape waived in a capital case when they were not interposed in the trial court]; People v. Garceau (1993) 6

These well-established rules of California waiver and objection practice articulated by the Supreme Court have application here. Defendant is not contending that there was any error in connection with the determination to permit him to proceed in pro se on May 16, 1997. He certainly preserved his initial request to proceed in pro se by requesting such. Rather, he is contending that the revocation of that right on May 19, 1997, was in error. In terms of the order made on May 19, 1997, revoking his pro per status, no timely objection was ever interposed in the trial court.

Other courts have held that an absence of objection by a pro se defendant to participation by counsel waives any Sixth Amendment issue in terms of either a direct or collateral attack on the judgment. {Hodge v. Henderson (2d

C. Because Defendant Acquiesced in the Order of May 19, 1997, No Sixth Amendment Violation Occurred

Apart from the issue of waiver, no Sixth Amendment violation occurred because defendant acquiesced in representation by defense counsel given the holdings of Faretta and McKaskle v. Wiggins (1984) 465 U.S. 168 , 173-174 [ 104 S.Ct. 944 , 948-949, 79 L.Ed.2d 122 ]. In Faretta, the United States Supreme Court expressly provided that if the accused acquiesced in the assignment of counsel, there was no Sixth Amendment violation. The Faretta court held: “To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the Amendment insists. It is true that when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas. Cf. Henry v. Mississippi [(1965)] 379 U.S. 443 , 451 [ 85 S.Ct. 564 , 569, 13 L.Ed.2d 408 ]; Brookhart v. Janis [(1966)] 384 U.S. 1 , 7-8 [ 86 S.Ct. 1245 , 1248-1249, 16 L.Ed.2d 314 ]; Fay v. Noia [(1963)] 372 U.S. 391 , 439 [ 83 S.Ct. 822 , 849, 9 L.Ed.2d 837 ], This allocation can only be justified, however, by the defendant’s consent, at the outset, to accept counsel as his representative. An unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very

The foregoing language in Faretta was reiterated in McKaskle v. Wiggins, supra, 465 U.S. at pages 173-174 [104 S.Ct. at pages 948-949], a case involving midtrial participation in the pro se accused’s defense by standby counsel. The United States Supreme Court modified the language in Faretta set forth in the immediately preceding paragraph with the indicated second set of bracketed modifications: “ ‘[U]nless the accused has acquiesced in [representation through counsel], the defense presented is not the defense guaranteed him by the Constitution .....’ ” (Ibid.) In McKaskle, the defendant acquiesced in the participation of standby counsel in parts of the trial. As to the portions of the proceedings where the defendant objected to standby counsel’s participation, the trial judge sustained those objections. Because the accused did not object to counsel’s participation in other respects, the United States Supreme Court found there was no violation of the Sixth Amendment self-representation right. (Id. at pp. 176-185 [104 S.Ct. at pp. 949-955].) Further, McKaskle held that a Faretta right to appear in propria persona can be waived. (Id. at p. 182 [104 S.Ct. at p. 953].)

To sum up, Faretta and McKaskle hold that the Sixth Amendment self-representation right does not exist when a defendant prior to or during trial acquiesces in the assignment or participation of counsel in the defense. (McKaskle v. Wiggins, supra, 465 U.S. at p. 173 [104 S.Ct. at p. 948]; Faretta v. California, supra, 422 U.S. at p. 821 [95 S.Ct. at p. 2534].) Further, although it does not address the precise factual situation present in this case, McKaskle holds that under certain circumstances waiver or forfeiture of the self-representation right can occur simply when no objection is interposed. (McKaskle v. Wiggins, supra, 465 U.S. at p. 182 [104 S.Ct. at p. 953].) In the present case, no Sixth Amendment violation occurred because of defendant’s acquiescence in the assignment of counsel on May 19, 1997.

D. Because Defendant Did Not Abide by Rules of Courtroom Procedure and Protocol, No Sixth Amendment Violation Occurred

Two United States Supreme Court decisions have identified circumstances where a trial judge who has granted pro per status may later withdraw it. In Faretta, the Supreme Court held: “Moreover, the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct. [Citation.] . . . [¶] The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.” (Faretta v. California, supra, 422 U.S. at pp. 834-835, fn. 46 [95 S.Ct. at p. 2541].) In McKaskle v. Wiggins, supra, 465 U.S. at page

In the present case, under either the Faretta “deliberately engages in serious and obstructionist misconduct” or the McKaskle “not ‘able and willing to abide by rules of procedure and courtroom protocol’ ” standards, the trial court did not violate defendant’s self-representation right under the Sixth Amendment. As noted previously, defendant was arrested on February 19, 1997, arraigned in superior court on March 20, 1997, and did not request pro se status until day 58 of the 60-day time period during which the trial must commence pursuant to section 1382, subdivision (a). He had been represented by the same attorney at the March 6, 1997, preliminary hearing and throughout those 58 days. His request to proceed pro se was made on a Friday. He was cautioned concerning the necessity of being ready for trial on the following Monday morning. He promised to be ready to try the case. However, on the following Monday morning, defendant appeared in court unready for trial. Defendant was so unconcerned about complying with his promise to be ready that he did not bring any sheriff’s reports or other legal materials with him so the matter could proceed to trial as he promised the preceding Friday. We find the foregoing to be “serious and obstructionist misconduct” within the meaning of Faretta and also an inability or unwillingness to “abide by rules of procedure and courtroom protocol” as that phrase is used in McKaskle. (E.g., People v. Clark, supra, 3 Cal.4th at pp. 113-117.)

We recognize we are addressing an issue in somewhat uncharted constitutional waters. The United States Supreme Court has never addressed the question of whether misconduct by a defendant such as occurred here, on the day of trial, constitutes sufficient grounds to revoke the self-representation right. We reach our conclusion in this regard in the context of a defendant who, because of the belated nature of his self-representation request, had no unqualified right to proceed pro se. We do not address the effect of a