People v. Hernandez

Decision Date14 January 1985
Citation163 Cal.App.3d 645,209 Cal.Rptr. 809
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond Gonzalez HERNANDEZ, Defendant and Appellant. Crim. B001907.

Frank O. Bell, State Public Defender, and Monica Knox, Deputy State Public Defender, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., S. Clark Moore, Asst. Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for plaintiff and respondent.

JOHNSON, Associate Justice.

This is an appeal of a conviction for attempted rape under Penal Code sections 261 and 264 and assault with intent to commit rape under Penal Code section 220. Two central issues are presented. First, did the trial court abuse its discretion in denying the appellant's motion to represent himself, a motion made immediately before the commencement of the trial. Second, did the trial court err when it allowed the jury to reconsider its verdict on one of two counts after it returned to consider the verdict on the other. Since we find no error was committed by the trial court, we affirm.


Because the issues raised on appeal concern the conduct of the trial itself, a detailed discussion of the facts surrounding the attempted rape is unnecessary.

On the evening of February 20, 1983, the appellant went to the home of his estranged wife. After being there for about an hour and a half, he left and went next door to the apartment of Laura Carletello. The appellant knocked on her door. Although Ms. Carletello tried to keep the appellant out after she opened the door, he forced his way in. He proceeded to attempt to rape her. Mrs. Hernandez heard the screams of Ms. Carletello and called her parents, who called the police. The police arrived while the appellant was still in Ms. Carletello's apartment and took the appellant into custody.

The appellant was charged by information with attempted rape and assault with intent to commit rape.

On the day the trial was scheduled to begin, the appellant made a motion to represent himself. 1 The trial court, from the outset, did not want to entertain such a motion. The court refused to listen to appellant's reasons underlying the motion and did not inquire into the cause for its lateness. The court simply stated it would allow the appellant to proceed in pro per only if he could do so without a continuance. Appellant said he was not ready for trial. When the appellant attempted to describe the reasons for his motion, the trial court addressed itself to another matter. Appellant's motion was denied.

At the conclusion of the trial, the jury was instructed with respect to the counts charged in the information. In addition, the jury received instructions on simple assault, a lesser included offense of assault with intent to commit rape, count II of the charge.

After deliberating for several hours, the jury returned to the courtroom and the foreman informed the court that the jury had reached a verdict on count II but they were unable to arrive at a verdict on count I. The court inquired whether further deliberations would enable the jury to break the deadlock. After some discussion, the foreman decided further instructions might be helpful. The court also inquired whether other jurors felt this way. Other jurors so agreed. The jury was dismissed until the next morning. The trial court decided to seal the verdict on count II while the jury deliberated further on count I. The verdict had neither been read to the jury nor was it recorded in the minutes of the court.

The next morning, the jury asked the court whether they could change their decision on count II. The court, over the objection of appellant, decided to allow the reconsideration. At this time neither the People's attorney nor the defense attorney knew what the verdict was, although the court was so aware.

Approximately two hours later, the jury returned from their deliberations. They found the appellant guilty of both counts as charged. After the reading, acknowledgment, and recording of the verdict, the trial court informed the attorneys at side bench that the jury, in the sealed verdict, had found the appellant only guilty of simple assault. The trial court, after further discussion with counsel, decided to question the jury concerning their original count II verdict.

The foreman informed the court that the jury had unanimously found the appellant guilty of simple assault on the first ballot yet they were hung up on everything else. Thus from the outset of their deliberations, they had considered three separate charges, the two counts of the information and the lesser included offense of simple assault. After this questioning, the trial court dismissed the jury.

The appellant filed a timely notice of appeal. He challenges the trial court's denial of his motion for self-representation and the trial court's decision to allow the jury to reconsider their verdict on count II.


A criminal defendant has a right under the Sixth and Fourteenth Amendments to represent himself at trial. (Faretta v. California (1975) 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562.) The defendant's right is absolute and unconditional if his motion is timely and if he is deemed competent to waive counsel. (Ferrel v. Superior Court (1978) 20 Cal.3d 888, 891, 144 Cal.Rptr. 610, 576 P.2d 93.) An untimely motion is addressed to the sound discretion of the court. (People v. Windham (1977) 19 Cal.3d 121, 128, 137 Cal.Rptr. 8, 560 P.2d 1187, cert. den. (1977) 434 U.S. 848, 98 S.Ct. 157, 54 L.Ed.2d 116.) 2

The court in Windham established the procedure to be followed in assessing an untimely motion:

"When such a ... request for self-representation is presented the trial court shall inquire sua sponte into the specific factors underlying the request thereby ensuring a meaningful record in the event that appellate review is later required. Among the factors to be considered by the court in assessing such request made after the commencement of trial are the quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion. Having established a record on such relevant considerations, the court should exercise its discretion and rule on the defendant's request." (Italics added.) (People v. Windham, supra, 19 Cal.3d at pp. 128-129, 137 Cal.Rptr. 8, 560 P.2d 1187.)

The court did not require that a trial court state the reasons for denying the motion for self-representation. As the court stated, "... we impose a requirement that trial courts confronted with nonconstitutionally based motions for self-representation inquire sua sponte into the reasons behind the request. Thus, ... there should be a sufficient record on appeal in such cases in order to sufficiently evaluate alleged abuses of discretion when motions for self-representation are denied." (People v. Windham, supra, 19 Cal.3d at p. 129, fn. 6, 137 Cal.Rptr. 8, 560 P.2d 1187; see People v. Joseph (1983) 34 Cal.3d 936, 944, fn. 2, 196 Cal.Rptr. 339, 671 P.2d 843; People v. Morgan (1980) 101 Cal.App.3d 523, 529, 161 Cal.Rptr. 664.)

In the case before us, the trial court made no attempt to inquire into appellant's reasons for making his motion. The record indicates just prior to the commencement of trial, appellant's counsel informed the court his client was requesting pro per status. Assuming arguendo that appellant's motion was untimely, the court was required to follow the procedure mandated in Windham. The trial court, however, made it clear from the outset it was not pre-disposed to listening to the reasons for the appellant's request. 3 When, at a later point, appellant attempted to tell the court the reasons for his request, the court abruptly cut him off and told appellant his motion would only be granted if he was prepared to begin the trial immediately. The appellant informed the court he would require a continuance. Soon thereafter, the court denied the appellant's motion. 4 The trial court, however, granted counsel's subsequent request to continue trial for five days.

Thus it is apparent from the record the trial court failed to conduct the type of inquiry mandated by Windham. Such a failure made it impossible for this court to adequately review the appropriateness of the trial court's denial of the appellant's motion. We were in essence forced to speculate about the factors underlying this request. This was the very situation the Windham court sought to avoid. 5

This same problem was faced in People v. Herrera (1980) 104 Cal.App.3d 167, 163 Cal.Rptr. 435. In that case, the defendant made a motion for self-representation on the morning of his trial. The trial court denied this motion and the defendant was subsequently convicted. His appeal was based, in part, on the denial of his motion. The appellate court reversed the defendant's conviction. An important factor in this decision was the trial court's total failure to comply with the mandate of the Windham court. As the court stated, "Without such a record we can only speculate that a consideration of these [the Windham ] factors may well have demonstrated to the trial judge reasons to exercise his discretion to allow Herrera to proceed in propria persona." (People v. Herrera, supra, 104 Cal.App.3d at p. 174, 163 Cal.Rptr. 435.)

An even more essential factor in the Herrera court's decision to reverse was its finding that the defendant's motion was not untimely even though it was made the morning of the defendant's trial. 6 The court found, based on the circumstances, there...

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