Cordova v. Baca

• Decision Date: 06 October 2003
• Docket Number: No. 02-55713.,02-55713.
• Citation: 346 F.3d 924
• Parties: Henry Lee CORDOVA, Petitioner-Appellee, v. Leroy BACA, Sheriff of Los Angeles County; Deanne Myers, Los Angeles Superior Court Judge; Steven Cooley, Los Angeles District Attorney; Bill Lockyer, Attorney General of California, Respondents-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 924

346 F.3d 924

Henry Lee CORDOVA, Petitioner-Appellee, v. Leroy BACA, Sheriff of Los Angeles County; Deanne Myers, Los Angeles Superior Court Judge; Steven Cooley, Los Angeles District Attorney; Bill Lockyer, Attorney General of California, Respondents-Appellants.

No. 02-55713.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 14, 2003 — Pasadena, California.

Filed October 6, 2003.

Matthew G. Monforton, Deputy District Attorney, Los Angeles, California, argued for the respondents-appellants. Steve Cooley, District Attorney of Los Angeles County, George M. Palmer, Head Deputy District Attorney, and Brentford J. Ferriera, Deputy District Attorney, joined him on the briefs.

Ronald S. Smith, Los Angeles, California, argued for the petitioner-appellee.

Appeal from the United States District Court for the Central District of California; Lourdes G. Baird, District Judge, Presiding. D.C. No. CV-01-01959-LGB.

Before: Cynthia Holcomb HALL, Alex KOZINSKI and Johnnie B. RAWLINSON, Circuit Judges.

OPINION

KOZINSKI, Circuit Judge:

We must evaluate under AEDPA a state court's decision to apply harmless error review where a criminal defendant was not represented by counsel at trial, following a defective waiver of his right to counsel.

Facts

Petitioner Henry Cordova was arrested outside his home after an altercation involving his neighbors. He was handcuffed by a Deputy Sheriff and placed in the back seat of a patrol car. After the deputy entered the car and sat in the driver's seat, Cordova either sneezed (his story) or spit (the deputy's story), as a result of which something unsavory landed on the deputy's face.

Cordova was charged in the South Bay Municipal Court with three misdemeanor counts of battery—two on his neighbors, the third on the deputy. Cordova was not eligible for representation by the Public Defender, and he vacillated as to whether he would hire a lawyer or represent himself. The trial judge, everyone agrees, did not admonish him as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), which held that a criminal defendant wanting to represent himself "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that `he knows what he is doing and his choice is made with eyes open.'" Id. at 835, 95 S.Ct. 2525 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)).

Cordova ended up representing himself. After a jury trial, he was acquitted of the two counts involving his neighbors but was convicted of battery on the deputy. The Appellate Division of the Los Angeles County Superior Court affirmed the conviction, even though it found that "the trial court committed error in failing to adequately advise [Cordova] of the dangers of self-representation" and the record was therefore "inadequate to ... demonstrate[] that appellant was sufficiently informed of the dangers of self-representation so as to make an intelligent and knowing waiver." App. Div. Order at 7. The Appellate Division, however, found that "the failure to advise the appellant of the dangers of self-representation was harmless beyond a reasonable doubt" under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), because "[t]here is nothing in the record to support a finding that the results would have been any different if appellant had been represented by counsel." App. Div. Order at 7-8. According to the Appellate Division, "[t]he case did not involve a sophisticated defense or complicated legal issues. It was simply a question of who would the jury believe." Id. at 8.

In petitions presented to the California Court of Appeal and California Supreme Court, Cordova argued that the Appellate Division should not have conducted harmless error review, but rather reversed automatically once it determined that he had not effectively waived his right to counsel. After the state courts denied him relief on this claim, he brought this habeas petition in federal court.¹ The district court granted the writ; it held that, once the Appellate Division had concluded Cordova's waiver was invalid, he was entitled to automatic reversal of his conviction. The state appeals, claiming that the Appellate Division's ruling did not contravene any Supreme Court case law directly on point, nor was its ruling an unreasonable application of that law under the alternative prong of AEDPA. 28 U.S.C. § 2254(d)(1).

Discussion

It is so well established as to require no citation that a criminal defendant has a constitutional right to counsel at trial. It is also established by numerous Supreme Court cases that if a defendant is denied the right to counsel, that error is structural and calls for automatic reversal of the conviction; in other words, denial of the right to counsel at trial is not subject to harmless error review. See, e.g., Penson v. Ohio, 488 U.S. 75, 87-89, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).

The right to counsel, like other constitutional rights, may be waived. Faretta, 422 U.S. at 807, 95 S.Ct. 2525. However, unless and until a criminal defendant waives a particular right, he continues to have it. A botched waiver does not diminish or alter the right. An unwaived right is an unimpaired right.

Here, the state appellate court determined that Cordova did not effectively waive his right to counsel because the trial court did not give him proper warnings. See p. 925 supra. Cordova thus commenced the trial with his right to counsel intact. Because Cordova was tried without a lawyer, it follows ineluctably from Supreme Court cases such as Rose and Penson that his trial was infected by structural error, and the Appellate Division was wrong when it concluded the error was harmless.

The state argues vigorously that there is in fact no Supreme Court authority on point because no Supreme Court cases deal with the consequences of a defective Faretta waiver. In the absence of such authority, the state argues, the Appellate Division's harmless error review following a defective waiver was neither directly contrary to Supreme Court authority nor an unreasonable application thereof. See 28 U.S.C. § 2254(d)(1). But we do not need a Supreme Court case to tell us the consequence of a defective waiver; a defective waiver waives nothing and thus is of no consequence. See Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed.1461 (1938) ("If the accused ... is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a ... bar to a valid conviction and sentence depriving him of his life or his liberty."). Cordova started out the proceedings with a right to counsel. Had he waived that right, the state would then have been entitled to try him without a lawyer. But the state appellate court found Cordova's waiver defective. This means that Cordova was entitled to counsel, yet was tried without one. And we do have Supreme Court authority squarely on point telling us that this kind of error is conclusively deemed prejudicial, so the conviction must be reversed automatically, without any inquiry as to whether the presence of a lawyer would have made a difference.

The state's confusion on this elementary point stems from its failure to distinguish between two separate steps in the analysis—the effect of a defective waiver colloquy and the effect of a defective waiver. As noted, the Supreme Court in Faretta held that, before a trial court accepts a defendant's waiver of the right to counsel, "he should be made aware of the dangers and disadvantages of self-representation." Faretta, 422 U.S. at 835, 95 S.Ct. 2525. The Supreme Court has not told us whether a trial court's failure to give proper warnings automatically vitiates the waiver, as in the case of defective Miranda warnings, see Miranda v. Arizona, 384 U.S. 436, 492, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or whether the error is subject to harmlessness analysis—an inquiry into whether, despite the absence of proper warnings, the waiver was nonetheless valid, as in United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002).

Because the Supreme Court has not spoken to the consequences of a trial court's failure to give proper Faretta warnings, a state court would be entitled to conclude that a defective waiver colloquy does not automatically result in a defective waiver — that a defendant's waiver was nonetheless knowing and voluntary, perhaps because defendant was well versed in the criminal justice process. That, indeed, is the approach our own court has taken. See United States v. Balough, 820 F.2d 1485, 1488 (9th Cir.1987). But the Appellate Division concluded that the defective waiver colloquy here vitiated the waiver.² It then proceeded to apply harmless error analysis to the next stage in the proceedings — determining whether the outcome of the trial would have been different had petitioner been represented. But that is exactly what the Supreme Court has told us appellate courts may not do.

The distinction between harmless error analysis at the waiver colloquy stage and that at the waiver stage is illustrated by People v. Dennany, 445 Mich. 412, 519 N.W.2d 128 (1994) — a case on which the state erroneously relies. Dennany was actually a consolidated case, and only the companion case — People v. Jones — dealt with our situation.³ Jones had asked to represent himself, and the trial court allowed him to do so without first giving him proper warnings. The majority considered whether defendant's waiver might nevertheless have been valid, based on knowledge he may have acquired from other sources, but concluded that defendant's prior experience with the criminal justice system was not sufficient to render the lack of a warning harmless. Dennany, 519 N.W.2d at 143 n. 26....