People v. Scott

Decision Date05 June 1998
Docket NumberNo. B112469,B112469
CourtCalifornia Court of Appeals Court of Appeals
Parties, 98 Cal. Daily Op. Serv. 4343, 98 Daily Journal D.A.R. 5893 The PEOPLE, Plaintiff and Respondent, v. Wesley E. SCOTT, Defendant and Appellant.

Wesley E. Scott, in pro. per., and Thomas Kallay, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, and Steven D. Matthews, Deputy Attorney General, for Plaintiff and Respondent.

KLEIN, Presiding Justice.

Defendant and appellant Wesley E. Scott (Scott) brought a motion to proceed in propria persona on appeal. 1

In the landmark case of Faretta v. California (1975) 422 U.S. 806, 818-832, 95 S.Ct. 2525, 2532-2540, 45 L.Ed.2d 562, the United States Supreme Court ruled that implicit in a criminal defendant's Sixth Amendment right to the assistance of counsel at trial is the right to self-representation at trial. The following year, In re Walker (1976) 56 Cal.App.3d 225, 228-229, 128 Cal.Rptr. 291, held the right to self-representation under Faretta does not extend to a state criminal appeal. Over the past two decades, as discussed below, there has developed a growing split of authority in other jurisdictions as to whether the Sixth Amendment right to self-representation at a criminal trial recognized by Faretta extends to the appeal. Therefore, we deemed it appropriate to examine the continued viability of In re Walker, supra, 56 Cal.App.3d 225, 128 Cal.Rptr. 291, which is over 20 years old and the sole California case on the issue. Consequently, in response to Scott's request to proceed in propria persona, this court sent the parties a three-page letter setting forth issues to be discussed in the briefing and set the matter for oral argument.

We conclude In re Walker remains good law and we seek here to enhance its rationale. There is no constitutional right to self-representation on the initial appeal as of right. The right to counsel on appeal stems from the Due Process and Equal Protection Clauses of the Fourteenth Amendment, not from the Sixth Amendment, which is the foundation on which Faretta is based. The denial of self-representation at this level does not violate due process or equal protection guarantees. Therefore, we deny Scott's motion.

FACTUAL AND PROCEDURAL BACKGROUND

Scott, who was represented at trial by appointed counsel, was convicted by jury of assault with a firearm (Pen.Code, § 245, subd. (a)(2), 2 and possession of a firearm by a felon (§ 12021, subd. (a)(1)). He was sentenced to a total term of 25 years and four months in state prison.

On May 7, 1997, Scott filed notice of appeal from the judgment of conviction. In the notice, Scott stated he "wishes to represent himself on this appeal, and does not require the court to appoint an attorney on appeal." In a letter filed June 17, 1997, Scott again advised this court he wished to pursue his appeal in propria persona.

In an order filed June 23, 1997, this court denied Scott's request, ruling "Appellant has no right to proceed in propria persona on appeal. (In re Walker (1976) 56 Cal.App.3d 225, 228, 128 Cal.Rptr. 291.) This matter is referred to the California Appellate Project for appointment of counsel." On July 10, 1997, this court appointed Gideon Margolis as appellate counsel for Scott.

On July 28, 1997, Scott filed a petition for writ of habeas corpus in which he alleged a deprivation of his right to represent himself on appeal.

On September 4, 1997, this court issued an order deeming the habeas petition a motion for reconsideration of (1) the court's June 23, 1997 order denying Scott's request to proceed in propria persona on appeal, and (2) the July 10, 1997 order appointing Margolis as appellate counsel.

On September 9, 1997, this court sent the parties a letter concerning whether the right to self-representation at trial recognized by the United States Supreme Court in Faretta, supra, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, granted a corresponding right to self-representation on appeal. Given the complexity of the issues involved and their broad importance, pursuant to section 1240, this court appointed appellate counsel Thomas Kallay to represent Scott in his effort to proceed in propria persona. We stayed the briefing as to the merits of the appeal pending resolution of the threshold issue as to the purported right to self-representation on appeal. Following oral argument on the Faretta issue, the matter was taken under submission.

CONTENTIONS

Scott contends: the right to self-representation is a fundamental right guaranteed by the Sixth Amendment of the United States Constitution, and said right has been incorporated into the due process clause of the Fourteenth Amendment; deprivation of the right to self-representation on appeal violates the due process and equal protection clauses of the federal Constitution and the equal protection clause of the California Constitution; and other jurisdictions provide guidance with respect to the implementation of the right to self-representation on appeal.

DISCUSSION
1. In Faretta, the United States Supreme Court held that implicit in a criminal defendant's right under the Sixth Amendment to the assistance of counsel at trial is the right to self-representation at trial.

To determine whether the right to self-representation at trial, as recognized in Faretta, applies on appeal, we begin with an examination of Faretta.

By way of background, the question addressed by the United States Supreme Court therein "is 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. Stated another way, the question is whether a State may constitutionally hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense." (Faretta, supra, 422 U.S. at p. 807, 95 S.Ct. at p. 2527, italics omitted.) In a six to three decision, the Supreme Court concluded "a State may not constitutionally do so." (Ibid.)

The constitutional footing of Faretta is the Sixth Amendment, which provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." (U.S. Const., 6th Amend.; Faretta, supra, 422 U.S. at pp. 818-832, 95 S.Ct. at pp. 2532-2540.)

Focusing on the text of the constitutional provision, Faretta reasoned "[t]he Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be 'informed of the nature and cause of the accusation,' who must be 'confronted with the witnesses against him,' and who must be accorded 'compulsory process for obtaining witnesses in his favor.' Although not stated in the Amendment in so many words, the right to self-representation--to make one's own defense personally--is thus necessarily implied by the structure of the Amendment. [Fn. omitted.] The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails. [p] The counsel provision supplements this design. It speaks of the 'assistance' of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant--not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; [fn. omitted] and the right to make a defense is stripped of the personal character upon which the Amendment insists. It is true that when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas. [Citations.] This allocation can only be justified, however, by the defendant's consent, at the outset, to accept counsel as his representative. An unwanted counsel 'represents' the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense. [p] The Sixth Amendment, when naturally read, thus implies a right of self-representation." (Faretta, supra, 422 U.S. at pp. 819-821, 95 S.Ct. at pp. 2533-2534, first and third italics added.) 3

2. The right to counsel on appeal is based not on the Sixth Amendment but on an entirely different constitutional footing, namely, the Fourteenth Amendment.

The Nevada Supreme Court has observed, "[b]ecause the Sixth Amendment only applies to trials, it does not support the existence of a right to self-representation on appeal. [Citation.] Faretta is thus distinguishable. [Citation.]" (Blandino v. State (1996) 112 Nev. 352, 914 P.2d 624, 626.) We agree. As explained below, the right to counsel on appeal does not rest on the Sixth Amendment. The right to appellate counsel stands on an entirely different constitutional footing, namely, the Equal Protection and Due Process clauses of the Fourteenth Amendment. Therefore, the issue becomes whether denial of self-representation on appeal contravenes those...

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