People v. Joseph, Cr. 21548

Citation196 Cal.Rptr. 339,34 Cal.3d 936,671 P.2d 843
Decision Date10 November 1983
Docket NumberCr. 21548
Parties, 671 P.2d 843 The PEOPLE, Plaintiff and Respondent, v. Mariney JOSEPH, Defendant and Appellant.
CourtUnited States State Supreme Court (California)

Quin Denvir, under appointment by the Supreme Court, State Public Defender, Edward H. Schulman and J. Courtney Shevelson, Deputy State Public Defenders, for defendant and appellant.

John K. Van de Kamp and George Deukmejian, Attys. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.

BIRD, Chief Justice.

This is an automatic appeal from a judgment imposing a penalty of death. (See Pen.Code, § 1239, subd. (b).) 1


Appellant Mariney Joseph was convicted by a jury of the first degree murder of Oscar Dent. (§§ 187, 189.) The jury found that he used a firearm in the commission of the murder (§§ 12022.5, 1203.06, subd. (a)(1)), and that the murder was committed during the commission or attempted commission of a robbery. (§ 190.2, subds. (a)(17)(i) and (b).) Appellant was also convicted of the robbery of Lou Reynolds; allegations of firearm use (§ 12022.5) and great bodily injury (§ 12022.7) were found to be true. The Dent-Reynolds offenses arose out of a single incident in which appellant and one or possibly two other men went to a house to rob its residents of money. The jury also convicted appellant of six additional counts of robbery, each with firearm use. These offenses arose out of a separate incident which occurred at a shoeshine parlor approximately one month before the Dent-Reynolds offenses.

Neither party presented any evidence at the penalty phase. (§§ 190.3, 190.4.) The jury fixed the penalty at death.


The only claim of error this court need address is appellant's contention that the trial court erred in denying his timely motion to represent himself. (Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.) The record indicates that an unequivocal assertion of appellant's desire to proceed pro se was made well in advance of trial. As a result, the denial of that motion constituted error. Since the erroneous denial of a timely proffered Faretta motion is reversible per se, the judgment of conviction must be set aside.


Some five months prior to the commencement of trial and before any pretrial motions had been heard, appellant and his appointed counsel, Mr. Armstrong, appeared for a pretrial conference. Counsel informed the court that he and appellant had "such a basic difference" on how the case should be handled that it was impossible for Armstrong to continue representing him. Armstrong also informed the court that appellant was requesting to represent himself. The following colloquy ensued:

"THE COURT: Are you asking to be relieved, Mr. Armstrong?

"MR. ARMSTRONG: Yes, Your Honor.

"THE COURT: That's your request, Mr. Joseph?

"THE DEFENDANT: Yes, Your Honor.

"THE COURT: This is a homicide matter which, according to the pleadings, is a possible death penalty case.

"THE DEFENDANT: I am aware of that, Your Honor. That's why I want to put on the defense, Your Honor, and I don't have the confidence in Mr. Armstrong on putting on the type of defense that I feel should be put on for me at this time in the case.


"THE COURT: Have you ever represented yourself?

"THE DEFENDANT: No, I haven't.

"THE COURT: In any type of a case other than traffic tickets?

"THE DEFENDANT: No, sir, I haven't.

"THE COURT: How long have you gone to school?

"THE DEFENDANT: One year of college.

"THE COURT: Have you ever studied law?


"THE COURT: Legal procedures, evidence, or any of those matters?

"THE DEFENDANT: No, Your Honor, I haven't.

"THE COURT: Do you feel that you are up to representing yourself on this type of a serious charge?

"THE DEFENDANT: I don't feel that equipped at this moment, Your Honor, but I will be by the time trial come [sic ] up if you allow me to go pro per and give me access to the law library in the County Jail.

"MR. FELDMAN [District Attorney]: Perhaps the court should mention to the defendant that [sic ] would be pro per for trial in chief and penalty phase, if it comes to that.

"If they determine that 190.2 is in order, that he be pro per in both of those and not through one and then get an attorney and then continue for the attorney to prepare himself and that type of thing. That's what I am most concerned about.

"THE COURT: There are actually two motions: One that Mr. Armstrong is requesting that he be relieved from appointment to represent the defendant and then the defendant is saying he wants to represent himself.


"THE COURT: You are asking to be relieved because you feel you cannot continue to represent the defendant?

"MR. ARMSTRONG: That's right, Your Honor.

"I feel that Mr. Joseph is an intellegent [sic ], knowledgeable person. But his view of how to handle this case and mine are so absolutely divergent that I think that attempting to go through a trial, feeling as we do, would be a shambles, because I couldn't control the situation. I know that he would be dissatisfied with any procedure that I would try to do.

"I just feel that I can't be effective in representing him.

"THE DEFENDANT: That's my feelings [sic ] also, Your Honor.

"THE COURT: Mr. Armstrong is relieved.

"MR. ARMSTRONG: Thank you, Your Honor.

"THE COURT: Now the question, Mr. Joseph, is whether the court will permit you to represent yourself or appoint other counsel.

"THE DEFENDANT: Your Honor, I request that the court would allow me to go pro per so I can defend myself.

"This is a situation where I would be fighting for my life. At this point, Your Honor, I don't feel like anyone would fight as hard for my life, and I am going to fight for my own life. I sincerely hope the court would allow me to represent myself in this matter.

"THE COURT: You have had some experience in this area?

"THE DEFENDANT: No, Your Honor, I don't.

"THE COURT: This is a possible capital offense.

"THE DEFENDANT: I understand that.

"THE COURT: I have relieved counsel only because he has asked to be relieved because of the difference between you and counsel in your private discussions.

"The court feels, because of the nature of the charge, you are not able to represent yourself adequately and your request to go pro per is denied.

"The court will consider appointing other counsel to represent you.

"You were originally represented by Mr. Sanner. Do you wish to have Mr. Sanner reappointed?

"THE DEFENDANT: No, sir. No, sir. Under no circumstances.

"THE COURT: I will advise you that in the areas of representation by counsel that the attorney basically controls the proceedings. The one exception to that, however, is whether you wish to take the stand in your own behalf. That's a decision that is actually under the case law of California left up to the defendant, even though it may not always be in his best interests in the evaluation of experienced trial counsel.

"In other areas the attorney is in charge of the case and with his experience and knowledge is in a better position to evaluate the best was [sic ] to defend you.

"When a person represents himself they [sic ] are bound by the same rules, they are required to conduct themselves in court consistent with the established rules and procedures and decorum.

"This is just for your information.

"Your request to go pro per, because this is a capital case, is denied.

"The court finds that you are not able to represent yourself effectively because of the nature of the charge and I will appoint other counsel.

"THE DEFENDANT: Your Honor, I feel that I can represent myself.

"THE COURT: Your request to go pro per is denied."

The trial court then appointed John Torribio as defense counsel, who continued in that capacity throughout the trial.


Almost a decade ago, the United States Supreme Court held that under the Sixth and Fourteenth Amendments, a criminal defendant who is competent may waive the right to counsel and represent himself. (Faretta v. California, supra, 422 U.S. at pp. 807, 819-821, 95 S.Ct. at pp. 2527, 2533-34.) That holding was premised on the "nearly universal conviction, on the part of our people as well as our courts, that forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so." (Id., at p. 817, 95 S.Ct. at p. 2532.)

Once a defendant proffers a timely motion to represent himself, the trial court must proceed to determine whether "he voluntarily and intelligently elects to do so .... If these conditions are satisfied, the trial court must permit an accused to represent himself without regard to the apparent lack of wisdom of such a choice and even though the accused may conduct his own defense ultimately to his own detriment." (Ferrel v. Superior Court (1978) 20 Cal.3d 888, 891, 144 Cal.Rptr. 610, 576 P.2d 93; see People v. Teron (1979) 23 Cal.3d 103, 113, 151 Cal.Rptr. 633, 588 P.2d 773, disapproved on another point in People v. Chadd (1981) 28 Cal.3d 739, 750, fn. 7, 170 Cal.Rptr. 798, 621 P.2d 837.)

The only determination a trial court must make when presented with a timely Faretta motion is " 'whether the defendant has the mental capacity to waive his Constitutional right to counsel with a realization of the probable risks and consequences of his action.' [Citations.] It is not, however, essential that defendant be competent to serve as counsel in a criminal proceeding [citation]; 'his technical legal knowledge, as such, [is] not relevant to an assessment of his knowing exercise of the right to defend himself.' (Faretta v. California, supra, 422 U.S. at p. 836 [95 S.Ct. 2525 at p. 2541, 45 L.Ed.2d 562, 582].)" (People v. Teron, supra, 23 Cal.3d at p. 113, 151 Cal.Rptr. 633, 588 P.2d 773.) One need not pass a "mini-bar examination" in order to exhibit the requisite capacity to make a...

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