People v. Spencer

• Decision Date: 28 March 1984
• Docket Number: Cr. F2084
• Citation: 153 Cal.App.3d 931,200 Cal.Rptr. 693
• Parties: The PEOPLE, Plaintiff and Respondent, v. Stanley Duane SPENCER, Defendant and Appellant.
• Court: California Court of Appeals

Page 693

200 Cal.Rptr. 693

153 Cal.App.3d 931

The PEOPLE, Plaintiff and Respondent, v. Stanley Duane SPENCER, Defendant and Appellant.

Cr. F2084.

Court of Appeal, Fifth District, California.

March 28, 1984.

As Modified April 19, 1984.

[153 Cal.App.3d 934] Emry J. Allen, Sacramento, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., J. Robert Jibson, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

OPINION

PAULINE DAVIS HANSON, Associate Justice.

Appellant, who was allowed to act as cocounsel during his trial before a judge without a jury, seeks reversal of the judgment of conviction because the trial court failed to secure a knowing and intelligent waiver of his right to counsel. In the alternative, appellant claims that if in fact he was represented by counsel and not acting in propria persona, the judgment should be reversed because of the ineffectiveness of trial counsel. Because appellant's first contention is meritorious, the case is reversed. We need not reach the second question. ¹

Stanley Duane Spencer was found guilty in count one of a violation of Penal Code section 211, robbery; it was further found that in the commission of the offense, appellant personally used a handgun within the meaning of Penal Code section 12022.5. Appellant also was found guilty of count two, possession of a firearm by an ex-felon in violation of Penal Code section 12021.

At arraignment, appellant, appearing with retained counsel Joe Lopes, entered pleas of not guilty to the crimes charged and denied the prior convictions. Trial was set and the date continued once. Before the trial date appellant waived jury trial, and attorney Lopes notified the court that appellant wished to act as cocounsel, with Mr. Lopes acting as advisory counsel.

On the trial date, appellant admitted the first prior conviction as alleged in the information and the prosecution's motion to strike the second prior conviction was granted. Both sides put on evidence; appellant testified, and the matter was continued. Twelve days later, after hearing argument by the prosecution and appellant, the court found appellant guilty as charged.

Appellant was sentenced to the upper term of five years for violation of Penal Code section 211, and a consecutive term of two years for the violation of Penal Code section 12022.5. A five-year state prison enhancement was imposed for the previously-admitted prior conviction. The term for violation of Penal Code section 12021 was stayed, resulting in a total sentence of 12 years with sentence credit for 288 days. Appellant filed his own notice of appeal.

A discussion of the facts is not necessary to the determination of the appeal. Appellant was identified at trial by the victim of the robbery and a percipient witness; upon appellant's arrest, incriminating evidence was discovered in the automobile in which appellant was found sleeping and upon his person. There is substantial evidence to sustain the judgment of conviction, and appellant may be retried. (People v. Pierce (1979) 24 Cal.3d 199, 209, 155 Cal.Rptr. 657, 595 P.2d 91; People v. Schindler (1980) 114 Cal.App.3d 178, 190, 170 Cal.Rptr. 461.)

Although appellant initially was represented by a deputy public defender at the arraignment stage, at that point appellant became displeased with appointed counsel, relieved the public defender and retained private counsel. At the pretrial hearing conference, appellant's retained counsel informed the court that appellant desired to act as cocounsel with his attorney:

"THE COURT: Mr. Spencer, did you want to present something to the court?

"MR. SPENCER: Yes, your Honor. That would be a co-counsel with my attorney if that would be acceptable and I would like to be apprised of whether or not you received the traverse that I filed to the petition for writ of habeas corpus pursuant to 88116.2"

Appellant's retained counsel spoke up and said:

"I make that motion, too, your Honor. I represented the defendant before and in that previous trial he also acted as his attorney with me and I found that he did pretty good and we would want to make the same motion."

However, the judge in no uncertain terms stated that he considered appellant to be represented by counsel and that appellant's desire would not be honored, at least for the time being. Further, the court explained to appellant that it could not consider motions made by appellant in propria persona while appellant was represented by counsel. ²

"THE COURT: Wait just one moment. The argument you are making now is an argument that is--that should be incorporated in a motion to dismiss under 995.

"MR. SPENCER: That is very true, your Honor.

"THE COURT: You are represented by a lawyer and the Court will not accept motions that are filed titled in propria persona, meaning you are representing yourself.

"MR. SPENCER: Your Honor, I was arraigned in pro per.

"THE COURT: You were?

"MR. SPENCER: Yes. And I was given a Public Defender.

"THE COURT: But you are not in pro per at this time.

"MR. SPENCER: No. I was given an attorney."

The discussion continued between appellant and the court, with appellant's retained counsel remaining silent; appellant made several motions to the court including a discovery motion, a motion for appointment of a defense investigator, and a motion relating to an untimely preliminary hearing. The court responded:

"Just one moment. I am not going to continue a dialogue with a defendant represented by a lawyer, and I am just merely responding to [some things]. I am not going to continue a dialogue. You are not counsel in this case as of yet. All right?

"MR. SPENCER: Yes, your Honor."

Obviously at the end of this hearing appellant had not been advised of the consequences or pitfalls of representing himself. (People v. Joseph (1983) 34 Cal.3d 936, 945, fn. 4, 196 Cal.Rptr. 339, 671 P.2d 843.) We are not informed by the record whether the previous trial referred to by Attorney Lopes, in which Lopes and appellant served as cocounsel, involved a misdemeanor or a felony offense, petty theft or drunk driving, or whether at that prior trial appellant was advised of the consequences of such joint representation. However, appellant was represented by counsel when he left the courtroom and was told so. There had been no Faretta hearing. (Faretta v. California (1975) 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562.)

The next stage of the proceedings occurred on the day of trial. At this time, the following colloquy took place:

"THE COURT: Mr. Lopes, defendant ready?

"MR. LOPES: Yes, Your Honor. We ask the defendant be, uh, admitted as an attorney for himself along with me.

"THE COURT: All right. In other words, you're asking that he be permitted to act as co-counsel with you; in other words, representing himself?

"MR. LOPES: Yes.

"THE COURT: Along with you representing him.

"MR. LOPES: Yes, your Honor.

"THE COURT: You will remain attorney of record and involved in control and advising him at all times; is that correct?

"MR. LOPES: Yes. And he'll also have permission to question the witness. I'd appreciate that.

"THE COURT: All right. I'll have to ask you to limit the questioning. Either you do it or he does it as to a particular witness. Now, I will let you, you know, change as to [who's going to] do the questioning on certain witnesses. But if one person starts to ask the questions, then that person will have to continue. Now, you'll have a chance to confer with him and he'll have a chance to confer with you.

"MR. LOPES: That will be fine. You understand that?

"DEFENDANT SPENCER: Yes.

"THE COURT: All right, let the record so indicate." ³ (Emphasis added.)

During trial it quickly became apparent that it was appellant who was in control of his representation. Appellant conducted the cross-examination of each of the prosecution's witnesses, pausing only to confer with retained counsel between witnesses. In addition, appellant made the closing argument to the court.

The respondent argues that because appellant joined forces with his retained counsel in presenting his defense appellant received all of the benefits of representation by a lawyer and consequently there was no need for a knowing and intelligent waiver of the right to counsel. We disagree. Respondent's argument ignores the basic requirement that there be some understanding of the consequences of such a choice. Moreover, it is clear that "defendant is not entitled to have his case presented in court both by himself and by counsel acting at the same time or alternating at defendant's pleasure. [Citations.]" (People v. Mattson (1959) 51 Cal.2d 777, 789, 336 P.2d 937.)

"So long as defendant is represented by counsel at the trial, he has no right to be heard by himself [citations]; conversely, when defendant has intelligently declined the aid of counsel he has no right to interrupt the trial with a demand for legal assistance [citation]." (Ibid; see also People v. Harris (1977) 65 Cal.App.3d 978, 987, 135 Cal.Rptr. 668.)

However, on good cause shown, a trial court may permit a defendant who is represented by counsel to participate in the conduct of his case or permit a defendant in propria persona to employ an attorney to sit by him and counsel him during the trial. "These matters are within the sound discretion of the trial judge, who is in a position to appraise the courtroom situation and determine what procedure will best promote orderly, prompt and just disposition of the cause." (People v. Mattson, supra, 51 Cal.2d 777, 797, 336 P.2d 937.)

It is suggested in the Mattson case that the court should not permit a defendant to be represented by an attorney and also participate actively during the trial, examining witnesses, making objections, presenting argument, unless the court on a "substantial showing determines that in the circumstances of the case the cause of justice will thereby be served" and the court's business will not be delayed. (People v. Mattson, su...