People v. Truman

• Citation: 6 Cal.App.4th 1816,9 Cal.Rptr.2d 138
• Decision Date: 08 June 1992
• Docket Number: No. B049044,B049044
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Charles Wallace TRUMAN, Defendant and Appellant.

Page 138

9 Cal.Rptr.2d 138

6 Cal.App.4th 1816

The PEOPLE, Plaintiff and Respondent, v. Charles Wallace TRUMAN, Defendant and Appellant.

No. B049044.

Court of Appeal, Second District, Division 4, California.

June 8, 1992.

Certified for Partial Publication ^*

Review Denied Sept. 2, 1992.

Richard J. Moller, Redway, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting Sr. Asst. Atty. Gen., Robert F. Katz, Supervising Deputy Atty. Gen., and Kristofer Jorstad, Deputy Atty. Gen., for plaintiff and respondent.

ARLEIGH M. WOODS, Presiding Justice.

This case involves two appeals from judgments of imprisonment imposed against appellant Charles Wallace Truman in two separate cases. In case number A921223, appellant was sentenced to 15 years to life with possibility of parole together with 8 years of enhancements after a jury convicted him of second degree murder with personal use of a knife while on bail. The court also found to be true the allegation that he had suffered a prior conviction. In case number A911027, appellant was sentenced to 8 years in prison (concurrent with the sentence imposed in case number A921223) after he pled guilty to one count of burglary with personal use of a handgun. Appellant contends both convictions must be reversed.

In case number A911027, appellant contends that his plea of guilty is invalid because he did not knowingly and intelligently waive his right to counsel and that it is void because the court incorrectly promised him that he could appeal the denial of his motion pursuant to Penal Code section 995 to set aside the information.

In case number A921223, appellant contends that his counsel was ineffective for failing to object to testimony that he used $2 million worth of cocaine from 1981 to 1984, that the trial court breached its duty to instruct the jury, sua sponte, on involuntary unconsciousness, that the court erred in giving CALJIC Instructions Nos. 5.52 and 5.53 over his objection, that the court erred in giving CALJIC No. 2.62, that there was insufficient evidence of express or implied malice aforethought, and that his right to have his case tried by one judge pursuant to Penal Code section 1053 was violated when, after commencement of voir dire and over his objection, the case was transferred to a second judge.

After review, we conclude appellant must be allowed the opportunity to withdraw his plea of guilty in case number A911027. As to case number A921223, we affirm.

I. Case Number A911027

At the time appellant entered his plea of guilty in case number A911027, he was in propria persona. Before he changed his plea, the trial court asked him whether he desired to continue to represent himself, and whether he understood and gave up his constitutional rights to jury trial, court trial, confrontation of the witnesses, and self-incrimination. Appellant responded in the affirmative to each of these questions. The court then asked appellant whether there was anything he wished the court to explain. Appellant replied that there was, and the prosecutor explained: "I think Mr. Truman is concerned about two things. One I have discussed with him, the fact that any appeal rights he has regarding the denial of his 995 motion will be preserved regardless of what court he takes those appeals to and that he could have a minute order reflecting that fact." The court responded: "Well, my understanding is that he has a statutory right to appeal from the denial of the 995. [p] I would further represent if it becomes an issue, I would issue a certificate of probable cause to allow you to litigate that issue on appeal." The court asked appellant whether there was "anything else?" Appellant stated: "No, nothing other than that." Appellant pled guilty to one count of residential burglary and admitted that during the commission of the burglary he was personally armed with a firearm. The court accepted this plea pursuant to People v. West (1970) 3 Cal.3d 595, 604, 91 Cal.Rptr. 385, 477 P.2d 409. ¹

Appellant contends he should be allowed the opportunity to withdraw his plea because it was induced by the false promise of appellate review of the denial of his motion pursuant to Penal Code section 995. Respondent concedes that this contention is well-taken.

Appellant's guilty plea precludes him from seeking review of the denial of his motion pursuant to Penal Code section 995, notwithstanding the trial court's promise to the contrary. (See People v. Padfield (1982) 136 Cal.App.3d 218, 227, 185 Cal.Rptr. 903; People v. Barkins (1978) 81 Cal.App.3d 30, 33, 145 Cal.Rptr. 926.) Therefore, appellant is entitled to withdraw his guilty plea if he wishes to do so. As the court in People v. Bonwit (1985) 173 Cal.App.3d 828, 833, 219 Cal.Rptr. 297, explained: "The [trial] court expressly stated one of the promises or representations made to [defendant] inducing his guilty plea was the court's own promise to issue a certificate of probable cause '[i]n order to protect the defendant's rights on appeal.' The promise was illusory and therefore was an improper inducement which voids the plea. [Citation.] We recognize [defendant] should be given an opportunity to reevaluate his guilty plea and withdraw that plea and proceed to trial if he so desires. [Citations.]"

Appellant's second ground of attack against the validity of his guilty plea is the claim that the trial court failed, prior to taking the plea, to warn him of the dangers and disadvantages of self-representation and to determine whether he had a sufficient understanding of the nature of the charges against him and the possible penalties. ²

The record reveals that appellant requested pro per status in this matter as early as April of 1985. On April 10, 1985 at the commencement of the preliminary hearing, the prosecutor argued to the court: "[I]t's my office's position that ... the defendant's constitutional rights are being threatened here, that he has a right if he so chooses ... to represent himself." The court denied the prosecutor's motion and told him to call his first witness. When the prosecutor declined, the court granted defense counsel's motion to dismiss for lack of prosecution.

The complaint was reinstated, upon the prosecution's motion, on July 26, 1985. At that time the trial court ordered the magistrate to allow appellant to proceed in propria persona "if [he] still desired [to do so]."

When the matter was again called for preliminary hearing on October 16, 1986, defense counsel informed the court that appellant wished "to proceed pro per." The court requested the prosecutor to "take the appropriate waivers." In response to the prosecutor's questions, appellant stated that he had completed the ninth grade, had no difficulty reading the English language and felt that he was capable of understanding the law and abiding by the rules of the court. Upon these representations, and without any warning of the dangers of self-representation, the court relieved the public defender and informed appellant of the charges alleged against him. The preliminary hearing began immediately.

After the People rested, appellant moved for dismissal of the complaint on the ground that the case had been refiled for the third time in violation of Penal Code section 1387. Appellant admitted that he could not substantiate his claim, but attributed this inability to the fact that he had not been "given any records, any documents in order to defend or represent myself, nor have I been given any pro per status, research time or the tools which is also a constitutional error." His motion was denied without prejudice.

Appellant was held to answer and an information was filed against him in the superior court on October 30, 1986. At his arraignment in the superior court on October 30, 1986, appellant filed a petition requesting that he be allowed to represent himself. The motion was denied and a public defender was appointed. Other motions for self-representation were denied on November 21, 1986, and December 18, 1986.

On December 16, 1987, appellant again moved for self-representation. ³ This time the trial court stated that it had "no objections" to appellant representing himself. The motion was, nonetheless, denied because appellant refused to complete a "Faretta Waiver" form. The trial court explained: "One of the things that is absolutely necessary to determine is that you have the ability to read and write the English Language. [p] We have that form that we have prepared which, in part, assists the court in making that determination. [p] I have offered that form to you to be filled out before, and it is my recollection that yo [sic ] have indicated that you would not fill out the form. [p] Without my having that threshold information I will not permit you to proceed to represent yourself without some showing of your competence to do so. [p] If you wish to fill out the form, I will be happy to consider letting you go pro per. And if you would like, we will make another copy of the form available to you. [p] Now, the ball is in your court, sir. What do you want to do? [p] Are you going to fill out the form, or not?" Appellant responded: "No, I am not." The court stated: "Then the request to proceed in pro per is denied."

On January 8, 1988, appellant's motion was again denied. The trial court stated: "The court's position is that he has arbitrarily and without any showing of any justification refused to fill out the court's prepared form which would allow this court the opportunity to make a determination that he was in a position to knowingly and intelligently and adequately represent himself or waive the right to counsel. [p].... [p] Again, the court offers the defendant the opportunity to complete the Faretta Waiver form. And if he indicates to me a willingness to do so, it is available. If he wishes to complete it, I...