King v. Superior Court

• Decision Date: 08 April 2003
• Docket Number: No. C039495.,C039495.
• Court: California Court of Appeals Court of Appeals
• Parties: Johnny KING, Petitioner, v. The SUPERIOR COURT of Sacramento County, Respondent, The People, Real Party in Interest.

132 Cal.Rptr.2d 585

107 Cal.App.4th 929

Johnny KING, Petitioner, v. The SUPERIOR COURT of Sacramento County, Respondent The People, Real Party in Interest.

No. C039495.

Court of Appeal, Third District.

April 8, 2003.

Rehearing Denied May 5, 2003.

Review Denied June 25, 2003.^*

Stephen Greenberg under appointment by the Court of Appeal for Petitioner.

No appearance for Respondent.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, Stephen G. Herndon, Rachelle A. Newcomb and Paul E. O'Connor, Deputy Attorneys General, for Real Parties in Interest.

MORRISON, Acting P.J.

"In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense." (U.S. Const, 6th Amend.) Because it is essential to a fair trial, the right to counsel has long been considered "fundamental." (Gideon v. Wainwright (1963) 372 U.S. 335, 343, 83 S.Ct. 792, 796, 9 L.Ed.2d 799, 804.) Despite the fundamental nature of this right, it is not absolute. In this case we consider whether an accused may forfeit his right to counsel by serious misconduct, such as violence and threats of violence against a succession of appointed counsel.

Balancing the great importance of the right to counsel against the need to protect counsel and the orderly administration of justice, we conclude an accused may forfeit his right to counsel by a course of serious misconduct towards counsel that illustrates that lesser measures to control defendant are insufficient to protect counsel and appointment of successor counsel is futile. In rare cases where the misconduct is so serious that lesser measures are patently inadequate to protect counsel, an accused may forfeit his right to counsel without employing the patently inadequate lesser measures. Forfeiture of counsel should be a court's last resort and generally forfeiture should occur only after lesser measures to control defendant, including but not limited to a warning and physical restraints or protections, have failed. Further, forfeiture of counsel can occur only after a hearing at which defendant is afforded full due process protections, including the assistance of counsel.

In this case, Johnny King engaged in a pattern of serious misconduct, violence and threats of violence, against a succession of court-appointed attorneys. However, the record does not reveal what measures to control and prevent King's violence, such as restraining him, were attempted. Moreover, the trial court found King forfeited his right to counsel at a hearing in which King's attorney not only did not represent King's interests, but argued against King and in favor of forfeiture. Accordingly, we reverse the order of forfeiture of counsel and remand for further proceedings.

BACKGROUND

In 1981, Johnny King was convicted of kidnapping, robbery, rape, and assault with intent to commit murder, with personal use of a firearm. He was sentenced to life in prison.

In 1999, King was charged with two counts of battery on a non-inmate and two counts of aggravated battery by gassing on a non-inmate. The complaint alleged he had three strike priors. Paul Comiskey was appointed to represent King at his arraignment. Comiskey later withdrew as counsel and the complaint was amended to add a fifth count of battery on Comiskey and to allege four strike priors. King then had three other appointed lawyers, each of whom was relieved.

The trial court held a hearing, outside the presence of the prosecutor, to determine if King had forfeited his right to counsel. King's various lawyers testified to King's assaultive and threatening behavior. King head-butted his first attorney, Paul Comiskey, at the arraignment after Comiskey waived the reading of the complaint over King's objection. The incident was witnessed by the lead bailiff.

Michael Long was appointed in March 1999 to represent King. He visited King in prison on March 12, 1999, and they had a lengthy discussion. When Long told King he would not file all the motions King wanted, or that he was not as excited about their merits as King, King told Long he would get someone on the outside to kill Long. King told Long that some day Long would step out of his car and somebody would be waiting for him. Long asked King why he thought Long would do a better job working under a death threat and King responded, "[Y]ou fuck me, I will fuck you." Long gave the case back to the indigent defense panel that day due to his concerns about personal safety.

Michael Aye picked the case up from Long, who told him King had made threats against his life. Aye met King at Folsom prison and told him he had an investigator. King asked if the investigator had a police background and Aye answered he was a medically retired California highway officer. King said, "once a pig, always a pig" and he would not have any "pigs" working on his case. Aye got another investigator.

Aye testified that King made lots of excessive and unusual demands. King made statements to the court that did not coincide with Aye's recollection of their conversations. At the same time, King pulled Aye aside and said he was threatening Aye's life. Aye had the impression that King was doing this so Aye would declare a conflict and another attorney would be appointed. Aye declared a doubt as to King's competency under Penal Code section 1368 and attempted to have King examined. King refused to cooperate with the examiners. Dr. Mattiuzzi examined King's records and was of the opinion that King had an anti-social personality, but did not meet the criteria of section 1368.

King exhibited a lot of animosity towards Aye and made some threats. Aye could not recall if King specifically said he could have Aye killed; that was an ongoing theme King used with lawyers, but Aye "didn't put too much heat in that." Because of King's animosity, however, Aye felt he was losing his objectivity and asked to be relieved. Aye recalled King's preliminary hearing was not held due to King's behavior in the holding cell, but believed the transport officers may have been baiting King. Aye believed King needed to show more self-control.

On cross-examination King asked Aye if the doctor had said anything about his thyroid problem. Aye did not recall anything. King claimed his behavior problems were due to his thyroid problem, which activated his bipolar manic depression. The court explained that King had been found competent to stand trial and assist in his defense, so his thyroid problem was not relevant at this time.

King's last appointed counsel was Donald Dorfman. Dorfman met with King before a court appearance. King was very unhappy with Dorfman's research on attacking King's priors. King told Dorfman to be very careful when he got upstairs. In court King grabbed Dorfman's sport coat and pulled him towards him. Dorfman gave in so his coat would not be torn. King told Dorfman he would crush his head if Dorfman were to continue. Dorfman was not certain, but he believed King's hands were chained. Dorfman told the court King did not like him. The court asked King what was not to like, and King said, "I hate this sack of shit." King was removed from the courtroom.

Dorfman testified King told him he was considering having someone fly up and take care of Aye. Dorfman had received discovery from the district attorney's office as he was still the attorney of record. King had a series of 115 incident reports while in jail; he had had problem involving snapping his teeth at a doctor and correctional officers that had not been charged. King was not reluctant to act out. Dorfman believed King did present the threat he claimed.

The trial court reviewed King's record and noted that he had been held in contempt and fined $500 during his arraignment. His preliminary hearing had been postponed after King broke his wrist shackles, used a chain as a weapon, and could not be removed from his cell. There was zero evidence of psychosis and King had refused to speak to the mental health staff. Dr. Ebert had found King's thyroid function might be abnormal and there was a strong relationship between abnormal thyroid function and abnormal behavior. Elevations in thyroid were associated with impulsive and aggressive behavior.

The court found King's right to counsel could have been forfeited based solely on the head-butting incident. By his ongoing course of extremely serious misconduct King had forfeited his right to counsel.

A redacted transcript of the hearing was provided to the district attorney. The district attorney moved to amend the complaint to add two counts of making criminal threats, alleging Long and Dorfman as the victims. The court granted this motion and denied King's request for the appointment of counsel on new counts six and seven.

At the preliminary hearing King wranted to waive his appearance. After King told the court, "I won't sit here and be quiet," the court excused him launder Penal Code section 1043.5. Midway through the proceeding, King was brought back in and ordered to stay after he promised not to be disruptive. King asked the court to dismiss counts six and seven because he had no attorney. The motion was denied and King was held to answer on all counts.

King petitioned this court for a writ of mandate or prohibition, which was denied. King then petitioned the California Supreme Court, asserting he was wrongly denied counsel on counts six and seven. The Supreme Court ordered the matter transferred to this court with directions to treat the petition as a petition for a writ of mandate and to issue an alternative writ addressing the issue of whether the trial court erred in finding King had forfeited his right to counsel, as well as the issue King raised in the petition. This court issued an alternative writ and appointed counsel to represent King in the writ proceeding.

Through his newly appointed counsel, King moved to expand the...