People v. Paradise

• Citation: 108 Cal.App.3d 364,166 Cal.Rptr. 484
• Decision Date: 17 July 1980
• Docket Number: Cr. 4788
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Tyrel Richard PARADISE, Defendant and Appellant.

Page 484

166 Cal.Rptr. 484

108 Cal.App.3d 364

The PEOPLE, Plaintiff and Respondent, v. Tyrel Richard PARADISE, Defendant and Appellant.

Cr. 4788.

Court of Appeal, Fifth District, California.

July 17, 1980.

Hearing Denied Oct. 15, 1980.

Willard L. Weddell, Public Defender, and Skip Staley, Deputy Public Defender, Bakersfield, for defendant and appellant

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Joel Carey and John R. Duree, Jr., Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

[108 Cal.App.3d 366] John K. Van De Kamp, Dist. Atty., Harry B. Sondheim and George M. Palmer, Deputy Dist. Attys., Los Angeles, as amicus curiae on behalf of plaintiff and respondent.

OPINION

GEO. A. BROWN, Presiding Justice.

Appellant seeks reversal of an order of the Municipal Court for the West Kern Judicial District following affirmance by the Appellate Department of the Superior Court, County of Kern, and certification to this court for review pursuant to California Rules of Court, rules 62(a) and 63.

The issue is whether before accepting a guilty plea to a misdemeanor a trial court must expressly advise a defendant who appears without counsel of the dangers and risks of self-representation. We hold that such advisement need not appear of record so long as the record as a whole shows that the express waiver of counsel was intelligent and with understanding. We further hold that the burden of proving that the waiver was not intelligent and with understanding is upon the appellant and that under the facts of this case appellant did not meet his burden. Accordingly, the order will be affirmed.

Appellant pled guilty in the municipal court to a charge of grand theft (Pen.Code, § 487, subd. 1), filed as a misdemeanor pursuant to Penal Code section 17. Upon his arraignment he was advised of his right to counsel and that counsel would be appointed at no expense if he lacked funds. He waived counsel and entered a plea of not guilty.

He later appeared without counsel and indicated his desire to plead guilty. Before pleading guilty appellant signed a form entitled "Defendants Acknowledgement of Advisal, Understanding and Waiver of Constitutional rights." All of the Boykin-Tahl rights (Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449) were listed. The following statement appears under a section entitled "My Right to Have an Attorney": "I understand that I have the right to retain and consult an attorney. If I cannot afford to hire an attorney, I understand that the Court must appoint an attorney. I understand that I have the right to have an attorney present during all proceedings."

Beneath the listed rights is the following statement: "The Court or my attorney has fully described the nature of the charges against me. The Court or my attorney also has informed me of all the possible consequences of entering a plea of either guilty or nolo contendere including but not limited to the possible maximum jail sentence that could be imposed on this charge." Thereafter the form states, "(h)aving been advised of the rights set forth above, and with full knowledge and understanding of those rights and of the effect of waiving them, I hereby specifically waive each and every one of said rights and enter a plea of guilty or nolo contendere, myself or by my attorney." Appellant dated and signed the form.

Thereafter and before sentencing, at appellant's request the Kern County Public Defender was appointed to represent him. Appellant made a motion to withdraw the guilty plea pursuant to Penal Code section 1018, predicated in part upon the ground he was not expressly advised of the dangers or disadvantages of self-representation. The motion was denied.

The salient part of appellant's declaration on this issue submitted in support of the Penal Code section 1018 motion stated: "I represented myself in this matter and I am not an attorney. I was never advised of the dangers or disadvantages of self representation at either the March 14, 1979 [date of arraignment on complaint], or the April 5, 1979 [date of plea], dates." There was no court reporter present when appellant pled guilty. Respondent concedes that appellant was not expressly advised of the dangers and risks of representing himself. The issue of whether such express advice is required is therefore squarely presented.

The point of departure in analyzing this issue is Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. In Faretta the United States Supreme Court was faced with the question of whether "a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so." (Id., at p. 807, 95 S.Ct. at p. 2527)

The decision and holding of Faretta is that a defendant does have a constitutional right to proceed in propria persona when the defendant intelligently and knowingly elects to do so. (Id., at p. 836, 95 S.Ct. at p. 2541.) The court emphasized that a defendant's technical legal knowledge of the law or judicial procedure, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself. (Ibid.) In the course of the decision the following language appears:

"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. Johnson v. Zerbst, 304 U.S., at 464-465, 58 S.Ct., at 1023. Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (plurality opinion of Black, J.). 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.' Adams v. United States ex rel. McCann, 317 U.S., at 279, 63 S.Ct., at 242." (Id., at p. 835, 95 S.Ct. at p. 2541.)

While this language is not the holding of the case, and is what other decisions have termed "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.

It is apparent that Faretta was concerned primarily with the constitutional right of a defendant to represent himself--not with the issue of whether an express advisement or warning of the consequences of a defendant choosing to do so is required. Appellant argues that an express admonishment of the dangers and risks of self-representation must appear of record, thus in effect adding to those advisements already required by the Boykin-Tahl cases and with regard to his right to an attorney by In re Johnson (1965) 62 Cal.2d 325, 42 Cal.Rptr. 228, 398 P.2d 420.

However, one would peruse Faretta in vain to find a requirement or suggestion that a trial court must expressly admonish a defendant of the dangers and risks of self-representation. What the law requires is that it appear from the whole record that a defendant's waiver of counsel and decision to represent himself was knowing and intelligent; that in choosing to represent himself he knew what he was doing and made the decision with eyes open. This is clearly the import of the decisions in Adams v. United States ex rel. McCann (1942) 317 U.S. 269, 279-281, 63 S.Ct. 236, 242-243, 87 L.Ed. 268, and Johnson v. Zerbst (1938) 304 U.S. 458, 464-465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, upon which the Faretta court placed primary reliance.

A number of post-Faretta federal court cases have expressly or implicitly rejected the rule appellant proposes--that trial courts engage in a mechanical advisement of the risks of self-representation--and have reaffirmed the pre-Faretta rule that the entire record should be examined in determining whether the waiver of counsel was intelligently made. (See, e. g., United States v. McCaskill (6th Cir. 1978) 585 F.2d 189, 190; United States v. Gillings (9th Cir. 1978) 568 F.2d 1307, 1308-1309 (cert. den. 436 U.S. 919, 98 S.Ct. 2267, 56 L.Ed.2d 76); United States v. Warledo (10th Cir. 1977) 557 F.2d 721, 727; Maynard v. Meachum (1st Cir. 1976) 545 F.2d 273, 278-279.) Likewise, a number of California cases decided before the Faretta decision held that this was the rule. (See, e. g., In re Johnson, supra, 62 Cal.2d 325, 334-335, 42 Cal.Rptr. 228, 398 P.2d 420; People v. Miller (1970) 12 Cal.App.3d 922, 931, 91 Cal.Rptr. 97; People v. Kellett (1969) 1 Cal.App.3d 704, 710-712, 81 Cal.Rptr. 917; People v. Kranhouse (1968) 265 Cal.App.2d 440, 447, 71 Cal.Rptr. 223.) At least one California case since the Faretta decision has held that the rule in California has not been changed by Faretta. (People v. Barlow (1980) 103 Cal.App.3d 351, 366-368, 371, 373-374, 163 Cal.Rptr. 664; see also People v. Burdine (1979) 99 Cal.App.3d 442, 447-448, 160 Cal.Rptr. 375.)

We have concluded that the rule which prevailed prior to Faretta continues to be the rule in California on this issue; whether a valid waiver of counsel occurred must be determined by reviewing the entire record and circumstances of the case.

We think it is also clear that the burden is upon appellant to demonstrate that he did not intelligently and understandingly waive his right to counsel with knowledge of the dangers and risks involved. (Moore v. Michigan (1957) 355 U.S. 155, 161-162, 78 S.Ct. 191, 195, 2 L.Ed.2d 167; People v. Miller, supra, 12 Cal.App.3d 922, 930, 91 Cal.Rptr. 97; People v. Kellett, supra, 1 Cal.App.3d 704, 711, 81 Cal.Rptr. 917; People v. Kranhouse, supra, 265 Cal.App.2d 440, 447, 71 Cal.Rptr. 223.)

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