People v. Barnum, No. S095872.

• Court: United States State Supreme Court (California)
• Writing for the Court: GEORGE, C.J.
• Citation: 64 P.3d 788,29 Cal.4th 1210,131 Cal.Rptr.2d 499
• Parties: The PEOPLE, Plaintiff and Respondent, v. Mark BARNUM, Defendant and Appellant.
• Decision Date: 17 March 2003
• Docket Number: No. S095872.

131 Cal.Rptr.2d 499
29 Cal.4th 1210
64 P.3d 788

The PEOPLE, Plaintiff and Respondent,
v.
Mark BARNUM, Defendant and Appellant

No. S095872.

Supreme Court of California.

March 17, 2003.

131 Cal.Rptr.2d 502

Fern M. Laethem and Lynne S. Coffin, State Public Defenders, Jeffrey J. Gale, Acting State Public Defender, under appointments by the Supreme Court, John Fresquez, Assistant State Public Defender, Arnold Erickson, Alison Pease and David S. Adams, Deputy State Public Defenders, for Defendant and Appellant

Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Robert R. Anderson and Jo Graves, Assistant Attorneys General, Margaret Venturi, Michael A. Canzoneri, David A. Eldridge and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, C.J.

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

131 Cal.Rptr.2d 503

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 give personal instruction on courtroom procedure or to provide the assistance that otherwise would have been rendered by counsel. Thus, a defendant who chooses to represent himself or herself after knowingly, intelligently, and voluntarily forgoing the assistance of counsel assumes the risk of his or her own ignorance, and cannot compel the trial court to make up for counsel's absence

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.

I

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.

According to the evidence presented by the People in their case-in-chief, the events that led to the charges in this case developed as follows: After dinner on July 19, 1997, Correctional Officers John Cartier and Richard Eubanks decided to search the cell shared by defendant and John Hendricks in one of the buildings at High Desert State Prison. Cartier and Eubanks recently had been assigned to the building, and had determined to put matters in order following what they took to be the somewhat lax procedures of their predecessors. Because defendant had a reputation as a hothead, Cartier and Eubanks called Correctional Officer Lorenzo Abella from another building to provide assistance if needed. Cartier and Eubanks removed defendant and Hendricks from their cell. Words were exchanged about Cartier's and Eubanks's handling of

131 Cal.Rptr.2d 504

defendant's and Hendricks's property. As Cartier and Abella attempted to escort defendant and Hendricks to an area where they could be secured for the duration of the cell search, defendant confronted Cartier, Cartier placed his hand on defendant's chest to keep him at bay, defendant slapped Cartier's hand away, a fight ensued between Cartier and defendant with Abella and Hendricks joining in, and order quickly was restored as Eubanks incapacitated defendant and Hendricks with pepper spray

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 defendant by probing into prior incidents involving correctional officers at another prison. In narrative form, defendant gave his own version of what had happened in the course of those incidents.

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 [sic] by improper handling of preceeding [sic ] 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....