People v. Longwith

Decision Date09 November 1981
Docket NumberCr. 11227
Citation178 Cal.Rptr. 136,125 Cal.App.3d 400
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. James David LONGWITH, Defendant and Appellant.
Howard W. Shook, Elk Grove, under appointment by the Court of Appeal, for defendant and appellant

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert D. Marshall, Deputy Atty. Gen., for plaintiff and respondent.

REGAN, Associate Justice.

Defendant appeals from a judgment entered after a jury found him guilty of violation of Penal Code section 261, subdivision 3, rape by threats. Probation was denied and defendant was sentenced to state prison for six years.

FACTS

The victim was defendant's 16-year-old stepdaughter, L. According to L., and from statements made by the defendant to L.'s mother, defendant had engaged in sexual contact (fondling and oral copulation) with the victim since she was seven years old. The sexual contact progressed and sexual intercourse was initiated when L. was approximately 12 years old.

On December 31, 1979, when L. was 15 years old, she was confined to bed following oral surgery. She was taking medication which made her sleepy and lethargic, causing her difficulty in moving about. On that date L.'s mother left the family residence for work at approximately 8:30 a. m. Defendant remained at home that day. After Mrs. Longwith left for work defendant ordered L.'s brother, D., to leave the residence and when D. complied defendant locked the door. Defendant then awakened Defendant was charged by information with violation of Penal Code section 261, subdivision 3. He was arraigned on the information on April 8, 1980, and plead not guilty. A public defender was appointed by the Municipal Court of Manteca to represent defendant. Subsequently, on May 9, 1980, the superior court initiated an inquiry into the defendant's financial eligibility for representation by the public defender. On June 13, 1980, the court found that defendant was financially ineligible for representation by the public defender and relieved the public defender from further representation of the defendant.

L. and walked her into the bathroom. Defendant told her that he "needed it more" and that he would hurt her and kill her female friend, J.P., if she did not cooperate with him. Defendant then undressed L. and began fondling her and kissing her. L. resisted defendant by "pushing away, hitting him, and telling him no." Defendant, however, continued his attack, penetrated L. sexually and ejaculated. Subsequently, L. reported the incident to her mother who called police.

On June 18, 1980, defendant appeared in propria personna. The court advised defendant to obtain private counsel and requested that he supply the court with a list of attorneys he had contacted. The action was continued until June 20, 1980, to enable defendant to retain counsel. On June 20, 1980, defendant appeared and informed the court he was unable to retain private counsel. The court continued the matter to allow defendant further time to obtain counsel.

On June 26, 1980, the San Joaquin County Public Defender's Office filed a petition for a writ of mandate (3 Civil 19759) challenging the court's order relieving the public defender.

On July 3, 1980, defendant appeared and informed the court that he had not retained private counsel and that he did not wish any further continuances. At that time the court questioned defendant as to his decision to conduct his own defense.

The matter proceeded to trial on July 22, 1980, 1 with the defendant acting in propria personna. Defendant was eventually convicted as charged.

On December 29, 1980, defendant filed a motion for a new trial which was denied on December 31, 1980, and sentence was imposed.

DISCUSSION

On appeal defendant contends that (1) his decision to proceed in propria persona was not the result of a knowing and intelligent waiver of his right to counsel; (2) the dismissal of defendant's public defender was a denial of his right to counsel; (3) the trial court committed reversible error in allowing the defendant to waive his right against self-incrimination; and (4) the trial court erred in not granting a new trial or modifying the verdict. We disagree and shall affirm the judgment.

I

Defendant contends he was denied his constitutional right to counsel on the theory that he did not make a knowing and intelligent waiver. The United States Supreme Court in Faretta v. California (1975) 422 U.S. 806, 821, 95 S.Ct. 2525, 2534 (45 L.Ed.2d 562, 574), held that the Sixth Amendment of the Constitution "implies a right of self-representation" for a defendant in a criminal action. The Court further stated: "When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must 'knowingly and intelligently' forgo those relinquished benefits." (Id., at p. 835, 95 S.Ct., at p. 2541 (435 L.Ed.2d at p. 581).)

In addition, the Court held that: "Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' " (Id., at p. 835, 95 S.Ct., at p. 2541 (45 L.Ed.2d at pp. 581-582).)

The California Supreme Court, interpreting Faretta, has held that when a demand for self-representation is timely made, the trial court must permit a defendant to represent himself on ascertaining that he has voluntarily and intelligently elected to do so. (People v. Windham (1977) 19 Cal.3d 121, 128, 137 Cal.Rptr. 8, 560 P.2d 1187; People v. Solomos (1978) 83 Cal.App.3d 945, 950, 148 Cal.Rptr. 248.) While the language quoted from Faretta is dicta, the import of the language is clear. "Courts must be certain that defendants who insist on going to trial without benefit of counsel have made that decision knowingly and intelligently." (People v. Paradise (1980) 108 Cal.App.3d 364, 368, 166 Cal.Rptr. 484.) Even though defendant's election for self-representation is against the advice of the court, the court must allow defendant to represent himself without regard to the apparent lack of wisdom of the election and even though the defendant may conduct his own defense to his own detriment. (Faretta, supra, 422 U.S. at 834-835, 95 S.Ct. at 2540-2541 (45 L.Ed.2d at pp. 581-582); Ferrel v. Superior Court (1978) 20 Cal.3d 888, 891, 144 Cal.Rptr. 610, 576 P.2d 93.)

There has been some judicial unclearness as to the manner in which a court determines whether the waiver was knowing and intelligent. It is clear, however, that a defendant's technical legal knowledge is an irrelevant consideration to the trial judge's assessment of whether the defendant made a knowing and intelligent waiver of his right to counsel. (Faretta, supra, 422 U.S. at p. 836, 95 S.Ct. at p. 2541 (45 L.Ed.2d at p. 582); People v. Salas (1978) 77 Cal.App.3d 600, 604, 143 Cal.Rptr. 755; People v. Elliot (1977) 70 Cal.App.3d 984, 991, 139 Cal.Rptr. 205.)

Some case authority requires that the trial court give a specific, on the record, warning to the defendant prior to allowing the waiver. (People v. Torres (1979) 96 Cal.App.3d 14, 19-22, 157 Cal.Rptr. 560; People v. Fabricant (1979) 91 Cal.App.3d 706, 712, 154 Cal.Rptr. 340.) The trend, however, is not to mandate the giving of some specific warning prior to allowing the defendant to waive his right to counsel. Instead, contemporary case authority seems to require that whenever a defendant insists on proceeding without counsel the trial court does whatever is necessary relative to the circumstances to determine that the defendant made a knowing and intelligent election. (People v. Barlow (1980) 103 Cal.App.3d 351, 365, 163 Cal.Rptr. 664; People v. Paradise, supra, 108 Cal.App.3d at pp. 369, 371-372, 166 Cal.Rptr. 484.) A valid waiver of the right to counsel is not determined by any ritualistic advisements as to the disadvantages of self-representation but is determined by reviewing the entire record and circumstances of the case. (People v. Paradise, supra; People v. Barlow, supra, 103 Cal.App. at pp. 367, 370, 163 Cal.Rptr. 664; Benge v. Superior Court (1980) 110 Cal.App.3d 121, 130, 167 Cal.Rptr. 714.)

Further, it is clear the burden is on defendant to prove that he did not intelligently and knowingly waive his right to counsel. (Moore v. Michigan (1957) 335 U.S. 155, 161-162 (2 L.Ed.2d 167, 172); People v. Barlow, supra, 103 Cal.App.3d at p. 373, 163 Cal.Rptr. 664; People v. Evans (1980) 112 Cal.App.3d 607, 614, 169 Cal.Rptr. 240.)

The court in People v. Lopez (1977) 71 Cal.App.3d 568, 572-574, 138 Cal.Rptr. 36, in some detail, suggested three, nonexclusive, general categories that may be considered in a Faretta situation. They are: (1) the disadvantages of self-representation have been communicated to the defendant; (2) the defendant has sufficient intellectual capacity; and (3) the defendant is informed that he waives the right to appeal on the grounds of inadequacy of representation.

We have examined the record and are of the opinion the record adequately establishes the defendant made a knowing and intelligent waiver. The trial court warned defendant that self-representation would be disadvantageous. Specifically, the trial court warned defendant of the disadvantage of a contest between a skilled prosecutor and a layman and that the "deck" was "stacked against" him. Further, we observe in the record, prior to the acceptance of the waiver, a colloquy between the trial judge and defendant in which the court warned defendant of the risks and possible consequences of self-representation and...

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