People v. Fedalizo

• Decision Date: 30 March 2016
• Docket Number: B263029
• Citation: 200 Cal.Rptr.3d 653,246 Cal.App.4th 98
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Baltazar Culbadora FEDALIZO, Defendant and Appellant.

246 Cal.App.4th 98

200 Cal.Rptr.3d 653

The PEOPLE, Plaintiff and Respondent,

v.Baltazar Culbadora FEDALIZO, Defendant and Appellant.

B263029

Court of Appeal, Second District, Division 7, California.

Filed March 30, 2016

Richard B. Lennon, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchezand Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

BLUMENFELD, J.^*

INTRODUCTION

While representing himself, defendant Baltazar Culbadora Fedalizo admitted he had violated his felony probation in this case by committing another crime in a new case and was sentenced in both cases to an aggregate three-year term in county jail. After the passage of Proposition 47, defendant petitioned to recall his sentence in both cases. The trial court appointed counsel for him, granted the petition in this case only, and resentenced him on three misdemeanor convictions to three consecutive terms of 364 days in county jail to be served concurrently with the terms imposed on the four remaining misdemeanor counts. Defendant claims that he was denied his Sixth Amendment right to represent himself and his right to be present at the resentencing hearing in this case. Because the record before us indicates that defendant waived these rights, we affirm.

PROCEDURAL BACKGROUND

In June 2014, defendant was charged with four felony counts of second degree burglary (Pen.Code, § 459),¹ one felony count of receiving stolen property (§ 496, subd. (a)), and misdemeanor counts of possession of burglary tools (§ 466) and driving with a suspended license (Veh.Code, § 14601.1, subd. (a)). (People v. Fedalizo (Super. Ct. L.A. County, 2014, No. KA103656).)

In August 2014, defendant, representing himself, waived his rights to a jury trial and pleaded no contest to all counts. The trial court placed defendant on three years of formal probation with credit for time served.

In September 2014, defendant violated the terms of his probation by committing another crime, counterfeiting a seal (§ 472). He was charged with this crime in a felony complaint filed a few months later. (People v. Fedalizo (Super. Ct. L.A. County, 2014, No. KA108474).)

In December 2014, defendant appeared for an arraignment and plea on the felony complaint for counterfeiting a seal. At that hearing, defendant announced that while he had worked with a lawyer from the public defender's office to obtain a plea agreement with the prosecution, he wished to represent himself "for the plea and the sentencing." The trial court granted his request. After waiving his rights to counsel, a preliminary hearing, and a jury trial, defendant pleaded no contest to one felony count of counterfeiting a seal in case No. KA108474 and admitted his probation violation in case No. KA103656. Pursuant to the negotiated agreement, the trial court sentenced defendant to three years in county jail in case No. KA103656 (consisting of the three-year upper term for one count of burglary, concurrent two-year middle terms on the remaining felony counts, and concurrent six-month and one-year terms for possession of burglary tools and driving on a suspended license, respectively). In case No. KA108474, the court sentenced defendant to a term of 365 days in county jail for counterfeiting a seal to be served concurrently with the sentence imposed in case No. KA103656.

On February 6, 2015, defendant filed a petition in propria persona to reduce his five felony convictions for burglary and receiving stolen property in case No. KA103656 to misdemeanors under Proposition 47. He filed a similar petition to reduce his felony conviction for counterfeiting a seal in case No. KA108474.

On March 5, 2015, the court heard the Proposition 47 petitions. Defendant was not present at the hearing. According to the minute order—and as confirmed by the reporter's transcript of the proceedings—defendant was represented by appointed counsel, a deputy public defender. The record does not reflect when counsel was appointed to represent defendant, though defendant acknowledges on appeal that the court "appointed counsel" for him. The court granted the petition in this case without opposition by the prosecution and reduced defendant's five felony convictions to misdemeanors. Before resentencing defendant, the trial court noted for the record that the deputy public defender had waived defendant's appearance. The court then resentenced defendant without objection to three consecutive terms of 364 days in county jail on counts 1 through 3, and concurrent terms on the four remaining misdemeanor counts. The trial court then denied defendant's petition to reduce his felony conviction for counterfeiting a seal to a misdemeanor under Proposition 47, which we affirmed in a separate appeal. (People v. Fedalizo (Dec. 22, 2015) B264538, 2015 WL 9311771[nonpub. opn.].) The trial court did not resentence defendant in that case.

On March 30, 2015, defendant filed a "motion to modify sentence structure," which this court deemed the notice of appeal in this case. In that "motion," defendant challenged the propriety of imposing consecutive sentences. He did not complain about being represented by counsel at the resentencing hearing.

DISCUSSION

Defendant contends that the trial court deprived him of his Sixth Amendment right to represent himself at the Proposition 47 hearing.² An erroneous denial of a valid request for self-representation is reversible per se. (People v. Williams (2013) 58 Cal.4th 197, 253, 165 Cal.Rptr.3d 717, 315 P.3d 1.) We reject defendant's contention because it is based on the unsupported assumption that he continued to assert rather than waive this right. We also reject his contention that, apart from the alleged violation of his right to self-representation, the trial court deprived him of his right to be present at the hearing. Defendant has forfeited the issue, and the argument is otherwise meritless.

A. THE SIXTH AMENDMENT RIGHT TO SELF–REPRESENTATION

Under the Sixth and Fourteenth Amendments, a criminal defendant has two mutually exclusive rights at all critical stages of a criminal prosecution—the right to counsel and the right to self-representation. ( Faretta v. California (1975) 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562["The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense"]; accord, People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1001, 47 Cal.Rptr.3d 467, 140 P.3d 775.)

There are fundamental differences between these two rights. (People v. Marshall (1997) 15 Cal.4th 1, 20, 61 Cal.Rptr.2d 84, 931 P.2d 262["The high court has not extended the same kind of protection to the right of self-representation"].) For example, "[t]he right to counsel is self-executing; the defendant need make no request for counsel in order to be entitled to legal representation." (People v. Koontz (2002) 27 Cal.4th 1041, 1069, 119 Cal.Rptr.2d 859, 46 P.3d 335.) The right to self-representation, on the other hand, must be clearly, timely, and effectively invoked. Effective invocation of the right to self-representation requires a defendant to waive the right to counsel knowingly, intelligently, and voluntarily. ( Faretta v. California,supra, 422 U.S. at p. 835, 95 S.Ct. 2525[citing the waiver standard set forth in Johnson v. Zerbst (1938) 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461(the Zerbst standard) ].) Courts must indulge every reasonable inference against waiver of the right to counsel. (Brewer v. Williams (1977) 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424; Marshall, supra, at p. 20, 61 Cal.Rptr.2d 84, 931 P.2d 262.)

Even after effective invocation, the right to self-representation can be waived. The standard for waiving the right to self-representation is substantially less stringent than it is for waiving the right to counsel. That is, the United States Supreme Court has not applied the Zerbst standard to the right to self-representation. (McKaskle v. Wiggins (1984) 465 U.S. 168, 183, 104 S.Ct. 944, 79 L.Ed.2d 122.) That right may be waived expressly or impliedly through conduct that is inconsistent with the assertion of the right. (Ibid. ["Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant's acquiescence, at least until the defendant expressly and unambiguously renews his request that standby counsel be silenced"]; accord, People v. D'Arcy (2010) 48 Cal.4th 257, 285, 106 Cal.Rptr.3d 459, 226 P.3d 949["a waiver or abandonment of the Faretta right to self-representation may be inferred from a defendant's conduct"]; People v. Rudd (1998) 63 Cal.App.4th 620, 631, 73 Cal.Rptr.2d 807["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"].)³

Applying the relevant waiver standard, we conclude that defendant has not demonstrated that he was denied his right to self-representation. At the hearing on March 5, 2015, a deputy public defender appeared and represented that defendant had waived his presence. Absent evidence that defense counsel misrepresented his authority to appear for defendant and waive his presence, we cannot presume that counsel neglected to obtain defendant's consent before proceeding as his attorney. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573, 43 Cal.Rptr.3d 741["Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error"].) To do otherwise would be contrary to the basic requirement that we " ' "indulge in every presumption to uphold a judgment" ' " and that we look to the appellant to...