People v. Masper

• Decision Date: 22 April 1994
• Docket Number: No. AO59721,AO59721
• Citation: 24 Cal.App.4th 367,29 Cal.Rptr.2d 335
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 24 Cal.App.4th 367 24 Cal.App.4th 367 The PEOPLE, Plaintiff and Respondent, v. Claude Christian MASPER, Defendant and Appellant.

Page 335

29 Cal.Rptr.2d 335

Previously published at 24 Cal.App.4th 367

24 Cal.App.4th 367

The PEOPLE, Plaintiff and Respondent, v. Claude Christian MASPER, Defendant and Appellant.

No. AO59721.

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

April 22, 1994.

Rehearing Granted May 23, 1994. ^*

[24 Cal.App.4th 369] Karen W. Riley, Oakland, for appellant/defendant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Sharon G. Birenbaum, Michael E. Banister, Deputy Attys. Gen., San Francisco, for respondent/plaintiff.

DOSSEE, Associate Justice.

Defendant was charged with stealing his girlfriend's car (Veh.Code, § 10851, subd. (a)). In proceedings in municipal court, defendant declined the assistance of counsel and chose to represent himself. He pled guilty to the charge, and the matter was certified to superior court for sentencing. The superior court judge sentenced defendant to three years in state prison. Defendant now appeals.

FACTS

The Offense

Defendant and the victim, Connie Hartert, had been dating for about a year when Ms. Hartert decided to end the relationship. Defendant, however, continued to try to see Ms. Hartert, and his intrusive behavior led Hartert to call the Walnut Creek Police on February 22 and again on February 23, 1992, to have him removed from her apartment. On February 26, 1992, Hartert obtained a temporary restraining order to keep defendant away from her apartment, but on February 27, about 11 p.m., defendant appeared at the

apartment anyway. He eventually left voluntarily, but the next morning about 5:30, Hartert discovered her car was gone. Two days later, on March [24 Cal.App.4th 370] 1, 1992, defendant was arrested in Oakland in possession of Hartert's car, and he freely admitted taking it.

Waiver of Counsel

At his arraignment in municipal court on March 5, 1992, defendant declined to speak to the public defender and asked to represent himself. The municipal court judge (Judge Gifford) asked defendant about his education, and defendant replied that he had received his Ph.D. in Europe. Judge Gifford explained the effects of defendant's stated intention to plead guilty to the charge and the benefits of having an attorney to negotiate the plea. Judge Gifford ultimately concluded that defendant's education and intelligence qualified him to represent himself. Despite defendant's eagerness to plead guilty, Judge Gifford put the matter over for one day to allow defendant the opportunity to discuss his intended plea with the district attorney.

At his appearance the following day, defendant again asked to represent himself, and the municipal court judge (Judge Wheatley) inquired a little further into his background.

"THE COURT: This is People versus Claude Masper, docket 359761. Mr. Masper, when you last appeared in court you requested of the court that you be allowed to represent yourself and you refused an opportunity to discuss the matter with the Public Defender. I take it that is still your position, is that correct?

"THE DEFENDANT: Yes. I want to defend myself.

"THE COURT: How old are you?

"THE DEFENDANT: 37.

"THE COURT: And where were you born?

"THE DEFENDANT: France.

"THE COURT: What part of France?

"THE DEFENDANT: Nice, N-i-c-e.

"THE COURT: Right. And what's your educational background?

"THE DEFENDANT: I have a pH D in Economy and Communication.

"THE COURT: In Economics [a]nd [C]ommunications?

"THE DEFENDANT: Right.

"THE COURT: And you received that degree from where?

"THE DEFENDANT: France.

"THE COURT: What school?

"THE DEFENDANT: Economies.

"THE COURT: What?

"THE DEFENDANT: Economies in France.

"THE COURT: Did you get a degree?

"THE DEFENDANT: Yes.

"THE COURT: Isn't there on the degree the place where you received it from?

"THE DEFENDANT: Aix en Provence....

"THE COURT: How long was the course of study before you received your degree?

"THE DEFENDANT: Eight years.

"THE COURT: All right. What has been your employment background?

"THE DEFENDANT: I am an auditor since 15 years....

"THE COURT: You work for what company or concern?

"THE DEFENDANT: Advance Management Partner.

"MS. KENFIELD: Partner.

"THE COURT: This is where in France?

"THE DEFENDANT: In France and Europe, Japan, all over the world.

"THE COURT: How long have you lived in the United States?

"THE DEFENDANT: One years.

"THE COURT: What has been your source of employment since you lived in the United States?

"THE DEFENDANT: My concerting [sic--consulting] and I am some fee from--

"THE COURT: How long have you lived in the United States?

"THE DEFENDANT: One year.

"THE COURT: You have lived here?

"THE DEFENDANT: I go back and forth. I go back and forth in 15 years. I go back and forth and I stay six months, eight or three months. Sometime 15 days, depending on on [sic ] my business.

"THE COURT: All right. You have been charged with violating Section 10851 of the Vehicle Code, vehicle theft. You have a right to be represented by an attorney at all stages of the proceedings. If you cannot afford an attorney, the matter would be referred to the Public Defender. I understand you have refused to talk with the Public Defender and you wish to represent yourself, is that correct?

"THE DEFENDANT: That's correct."

The court then accepted defendant's guilty plea.

Sentencing

Before the sentencing proceeding was held, defendant wrote a four-page letter to the superior court explaining his reasons for the crime ("reasons of my heart") and his reasons for pleading guilty and declining an attorney ("reasons of my spirit"). The probation report recommended a diagnostic study pursuant to Penal Code section 1203.03, and the superior court judge (Judge Golde) so ordered. Upon completion of the evaluation period, Judge Golde sentenced defendant to three years in prison.

"THE COURT: ... The court has read and considered the report of the probation officer. [p] Anything further?

"MR. PANDELL: No, Judge.

"THE COURT: The court finds the defendant to be a danger to the victim and others[.] [p] Probation is denied. [p] Do you waive formal arraignment for sentence?

"MR. PANDELL: Yes, your honor.

"THE COURT: The defendant having been convicted by a plea of guilty of the offense of a felony, to wit, a violation of section 10851 of the Vehicle Code, and probation having been denied, it is the judgment of this court, and it is hereby ordered, adjudged, and decreed that in punishment for said offense the defendant be imprisoned in the state prison of the State of California for a period of three years.

"The court fixes the aggravated term by virtue of the fact he was on court probation when he committed the offense, which probation was unsatisfactory. [p] He did not cooperate with the behavioral scientist at the Department of Corrections.

"Now, what's the time for credit? [p] I only have 32, but that's before he went to Vacaville.

"THE CLERK: He is not your attorney, sir.

"THE COURT: Get the computer, Lori.

"THE CLERK: This may not show it.

"THE COURT: That's all right; I will figure it out. [p] I will give you credit for 122 actual, 61 Sage credits. That should be it.

"THE DEFENDANT: I would like to say something.

"THE COURT: That's it.

"THE [DEFENDANT]: I would like to have an attorney now.

"THE COURT: Beg your pardon?

"THE DEFENDANT: This is a sham. There is nothing true in this report. [p] I request an attorney for this. I will leave you this: This is a sham."

DISCUSSION

I. Lack of Inquiry as to Legal Cause Against Judgment

Penal Code section 1200 sets forth the procedure for arraignment for judgment: "When the defendant appears for judgment he must be informed by the court, or by the clerk, under its discretion, of the nature of the charge against him and of his plea, and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him."

Defendant complains that the trial court failed to make the inquiry required by this statute as to whether there was any legal cause why judgment should not be pronounced. ¹ The Attorney General concedes the omission but contends the ultimate question in this appeal is whether defendant effectively waived his right to counsel: if he did, the error was waived by his failure to object to the procedure. We do not agree with the Attorney General's contention that the error was waived, but we nevertheless find the error was harmless.

A. Failure to Object

There is no dispute that defendant was entitled, pursuant to Penal Code section 1200, to be asked whether there was legal cause why judgment should not be pronounced. Some courts have found the trial court's error in failing to inquire about legal cause waived by the defendant's failure to object to the procedure. (People v. Thomas (1955) 45 Cal.2d 433, 438-439, 290 P.2d 491; People v. Nelson (1967) 257 Cal.App.2d 282, 285, 64 Cal.Rptr. 801; People v. Straw (1962) 209 Cal.App.2d 565, 567, 26 Cal.Rptr. 461; People v. Williams (1957) 155 Cal.App.2d 328, 333, 318 P.2d 106, cert. den. 356 U.S. 977, 78 S.Ct. 1142, 2 L.Ed.2d 1150; People v. Rocha (1955) 130 Cal.App.2d 656, 663-664, 279 P.2d 836.) In People v. Rocha, supra, the court explained: "If there had been any facts which should have been taken into consideration by the court before disposing of the case it was incumbent upon defendant and his counsel to draw such facts to the court's attention. They could have been considered, or a continuance granted, and the defendant could have been rearraigned. This point cannot now be raised for the first time on appeal since there was no suggestion made in the trial court that the procedure differed in any respect from that prescribed by the code."

In the present case, we decline to conclude that defendant waived the error. As his attorney points out, defendant tried to address the court immediately after sentence was imposed. Nevertheless, as discussed below, we concl...