People v. Freeman

• Decision Date: 29 December 1977
• Docket Number: Cr. 15740
• Citation: 142 Cal.Rptr. 806,76 Cal.App.3d 302
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Carey FREEMAN, Defendant and Appellant.

Page 806

142 Cal.Rptr. 806

76 Cal.App.3d 302

PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Carey FREEMAN, Defendant and Appellant.

Cr. 15740.

Court of Appeal, First District, Division 1, California.

Dec. 29, 1977.

Hearing Denied March 23, 1978.

Allen R. Crown, Concord, for defendant and appellant.

Evelle J. Younger, Atty. Gen. of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Clifford K. Thompson, Jr., Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

RACANELLI, Presiding Justice.

Defendant Donald Carey Freeman appeals from a judgment following a jury conviction of robbery (Pen.Code, § 211) fixed by the court as second degree, and first degree burglary (Pen.Code, § 459). Defendant was sentenced to the Youth Authority on the burglary conviction; sentence on the robbery conviction was stayed, the stay to become permanent upon completion of sentence on the burglary conviction.

Defendant claims prejudicial error in the denial of his (1) constitutional right of self-representation, and (2) motion to suppress evidence. His first claim is meritorious and dispositive of the appeal. Accordingly, we must reverse the judgment of conviction and remand with directions.

Right of Self-Representation

On October 15, 1975, six months in advance of the commencement of trial, ¹ defendant requested that he be allowed to represent himself without a court-appointed attorney. During examination by the court it was revealed that defendant, who had never been through a trial before, had undergone 12 years of schooling, including a year of college vocational training. The court, after a general inquiry concerning defendant's familiarity with the rules of evidence, pointed out certain consequences and disadvantages that defendant would likely encounter during trial by undertaking his defense pro se. Thereafter, the court properly continued the hearing in order that the defendant might carefully reflect upon his expressed desire to proceed without counsel. On the following day, defendant having confirmed his request, the court denied the motion on the grounds of defendant's lack of knowledge of the rules of evidence and procedure and manifested lack of awareness of the obligations of responsible advocacy in terms of courtroom demeanor. ²

It is now settled law that a defendant in a criminal trial possesses a constitutional right to represent himself without the assistance of counsel (Faretta v California (1975) 422 U.S. 806, 836, 95 S.Ct. 2525, 45 L.Ed.2d 562; People v. McDaniel (1976) 16 Cal.3d 156, 164, 127 Cal.Rptr. 467, 545 P.2d 843 (cert. den. 429 U.S. 847, 97 S.Ct. 131, 50 L.Ed.2d 119), so long as he "knowingly and intelligently" waives the right to counsel and, being aware of the disadvantages of self-representation, makes his choice "with eyes open." (Faretta v. California, supra, 422 U.S. at p. 835, 95 S.Ct. 2525.) In assessing the knowledgeable exercise of his right to personally defend himself, a showing of a defendant's technical legal knowledge is not required. (Id. at p. 836, 95 S.Ct. 2525.) Once "a motion to proceed pro se is timely interposed, a trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be." (People v. Windham (1977) 19 Cal.3d 121, 128, 137 Cal.Rptr. 8, 12, 560 P.2d 1187, 1191.) Herein, defendant's motion was asserted ". . . (well) within a reasonable time prior to the commencement of trial" (id. at p. 128, 137 Cal.Rptr. at p. 12, 560 P.2d at p. 1191), at which time the Faretta rule applied. (People v. McDaniel, supra, 16 Cal.3d at p. 168, 127 Cal.Rptr. 467, 545 P.2d 843.)

The People candidly concede that under the mandate of Faretta, denial of the right of self-representation cannot be justified on either the grounds of lack of technical legal knowledge or anticipated disruptive behavior by an unrepresented defendant. As explained in Faretta, "the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct. (Citation.) Of course, a State may even over objection by the accused appoint 'standby counsel' to aid the accused . . ., and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary." (Faretta v. California, supra, 422 U.S. 806, 834-835, fn. 46, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562; citing United States v. Dougherty (1972), 154 U.S.App.D.C. 76, 473 F.2d 1113, 1124-1126.)

We conclude that the denial of defendant's motion was erroneous under Faretta principles.

Standard of Reversible Error

We turn to the correlative question as to whether reversal is automatically compelled by reason of the erroneous denial of the pro se motion. We recognize that this precise question was left unanswered in Faretta (see dis. opn. of Blackmun, J., 422 U.S. at p. 852, 95 S.Ct. 2525) and expressly reserved by our Supreme Court in Windham (supra, 19 Cal.3d at p. 131, fn. 7, 137 Cal.Rptr. 8, 560 P.2d 1187).

The People, in urging that the result-oriented "harmless error" standard should apply (Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705), argue that reversal based upon constitutional error is compelled only where the record manifests the related factors of (1) high probability of resulting prejudice, and (2) extreme difficulty in assessing the extent of such prejudice, relying on the rationale of People v. Parham, 60 Cal.2d 378, 385, 33 Cal.Rptr. 497, 384 P.2d 1001 (concerning application of the per se rule of error to involuntary confessions). The People stoutly maintain that inasmuch as the error here was committed in good faith, a more favorable verdict was not reasonably "possible" (sic), and the defendant enjoyed pro se representation in substance, such trilogy of circumstances warrant application of the less stringent standard and a finding of harmless error. We cannot agree.

In our analysis, we do not question the good faith of the learned trial judge in denying the motion out of an understandable concern for the interest of a youthful and inexperienced defendant. But the People fail to cite, nor do we find, any authority for the relevancy of good faith in assessing the propriety of such denial.

The doctrine of harmless error normally operates "in cases where the challenged error concerns a right given the defendant in order to permit his defense to operate at maximum competence or to insulate him from the effects of suspect evidence. In such cases there is reason to consider whether claimed error is harmless because it plainly did not affect the result adversely to defendant, for then the reason for the right lapses." (United States v. Dougherty, supra, 473 F.2d 1113, 1127-1128; see also Chapman v. United States (5 Cir. 1977) 553 F.2d 886, 891.) In contrast, the Faretta rule manifestly does not derive from constitutional concepts directed towards enhancing reliability of the truth-determining or fact-finding process. The Faretta majority, in emphasizing the accused's absolute right to proceed pro se, based its decision on fundamental considerations of an individual's freedom of choice to personally conduct his own defense. (Faretta v. California, supra, 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562.) As our California Supreme Court observed in People v. McDaniel, supra, 16 Cal.3d 156, at page 165, 127 Cal.Rptr. 467 at page 472, 545 P.2d 843 at page 848: "Notwithstanding the prejudice which an accused may suffer upon self-representation, the right to so penalize himself was deemed by the majority to be grounded on other considerations directed more to the assertion of personal liberties than to the assertion of an effective defense. The majority thus state: 'To force a lawyer on a defendant can only lead him to believe that the law contrives against him. . . . The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of "that respect for the individual which is the life blood of the law. " (Citation.)' (Id., at p. 834, 95 S.Ct. 2525, at p. 2540, 45 L.Ed.2d at p. 581.)"

It thus appears that application of the result-oriented harmless-error doctrine (Chapman v. California, supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705) would render the right of self-representation virtually unenforceable in most cases, thereby effectively nullifying the right itself. (See People v. Ruiz (1968) 263 Cal.App.2d 216, 226-227, 69 Cal.Rptr. 473.) As observed by the Dougherty court (in the context of review of denial of a statutory pro se right), ". . . if the conventional doctrine of harmless error is applied, it will in effect undercut the right of pro se representation, since rarely if ever can there be a showing of prejudice in terms of result from the conduct of a trial by counsel. . . ." (United States v. Dougherty, supra, 473 F.2d 1113, opn. on pet. for rehg., at p. 1148; see also Chapman v. United States, supra, 553 F.2d 886, 891-892.) Such conclusion is fortified by the language of Faretta where it is stated: "It is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts." (Faretta v. California, supra, 422 U.S. 806, 834, 95 S.Ct. 2525, 2540, 45 L.Ed.2d 562.)

Accordingly, the force of such reasoning inexorably leads to the conclusion that denial of a defendant's timely asserted pro se motion, in contravention of Faretta principles, constitutes reversible error per se.

Nor do we find, as suggested by the...