concluding that the Sixth .Amendment requires self-representation for a defendant, even when it is invoked by the defendant expressly to ensure his receipt of the death penalty
How later courts described this case
- concluding that the Sixth .Amendment requires self-representation for a defendant, even when it is invoked by the defendant expressly to ensure his receipt of the death penalty
- upholding death verdict where self-represented defendant did not oppose death verdict and chose to present no mitigating evidence
- where counsel acted in an advisory or other limited capacity, “defendant must show that counsel failed to perform competently within the limited scope of the duties assigned to or assumed by counsel ... and that a more favorable verdict was reasonably probable in the absence of counsel's failings"
- "To prevail on a claim that counsel acting in an advisory or other limited capacity has rendered ineffective assistance, a self-represented defendant must show that counsel failed to perform competently within the limited scope of the duties assigned to or assumed by counsel. . . ." (emphasis omitted)
Written by the judges who cited it.
The opinion
LUCAS, C. J.
I concur in the judgment of death, but I would reach that disposition in a slightly different manner than the majority.
In rejecting defendant’s incompetent counsel claims, the majority concludes, based on its reading of Faretta v. California (1975) 422 U.S. 806 [ 45 L.Ed.2d 562 , 95 S.Ct. 2525 ], that (1) defendant was properly allowed to represent himself (with advisory counsel) despite his stated purpose to withhold mitigating evidence and obtain a death verdict, and (2) he was not entitled to a specific, advance warning that such self-representation would result in the waiver of his right to raise on appeal any claims of incompetent counsel.
Although I tend to agree with the foregoing conclusions, the lack of supportive federal precedent would lead me to base our decision on the ground that, in any event, defendant was not prejudiced by any supposed error in permitting him to proceed as he did. (I assume that any error in allowing self-representation with cocounsel or advisory counsel would not be deemed reversible per se. Cf. People v. Crandell (1988) 46 Cal.3d 833, *1233 864-865 [ 251 Cal.Rptr. 227 , 760 P.2d 423 ]; People v. Bigelow (1984) 37 Cal.3d 731, 744-746 [ 209 Cal.Rptr. 328 , 691 P.2d 994 , 64 A.L.R.4th 723 ], and cases cited.)
Here, defendant introduced substantial mitigating “background” evidence at the guilt phase, which evidence focused on his unstable relationship with his abusive father, his initial murder victim. The guilt phase evidence included testimony by defendant’s mother, grandmother, former stepmother and other witnesses regarding Bloom, Sr.’s violent temper and his physical and verbal abuse of defendant, and the testimony of Dr. Kling regarding defendant’s schizotypal mental disorder. Additionally, the jury knew that defendant had no prior felony convictions and was only 18 years old when he committed the offenses.
Although the foregoing evidence was not formally presented or argued at the penalty phase, the jury was expressly instructed to consider, in determining penalty, “all of the evidence which has been received during any part of the trial of this case, including the guilt phase.” (Italics added.)
In addition, expanded jury instructions were given in the present case to make clear that the jury could consider “Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime, and any other aspect of defendant’s character or record that defendant proffers as a basis for a sentence less than death.” (Italics added.)
At one point in his argument the prosecutor reminded the jury that defendant “chose” not to present any mitigating evidence. Soon thereafter, however, the prosecutor advised the jury to “Go over the facts in this case, go over the defendant’s background, see how he only goes after those who are unarmed and helpless. Review the evidence of the guilt phase of the trial.” (Italics added.) Thus, contrary to defendant’s contention, we must assume from the instructions and argument in this case that the jury considered the substantial mitigating evidence elicited at the guilt phase. (See People v. Rich (1988) 45 Cal.3d 1036, 1117-1119 [ 248 Cal.Rptr. 510 , 755 P.2d 960 ]; People v. Williams (1988) 44 Cal.3d 1127, 1152 [ 245 Cal.Rptr. 635 , 751 P.2d 901 ]; People v. Gates (1987) 43 Cal.3d 1168, 1214 [ 240 Cal.Rptr. 666 , 743 P.2d 301 ].)
Here, the jury received expanded instructions which permitted it to consider the mitigating guilt phase evidence. Thus, defendant’s failure to formally introduce any mitigating evidence at the penalty phase was not prejudicial to his case. For the same reason, defendant’s habeas corpus petition fails to state a prima facie case. The mitigating evidence referred to in the petition appears to be largely cumulative of evidence already admitted at *1234 the guilt phase. (See People v. Guzman (1988) 45 Cal.3d 915, 968-969 [ 248 Cal.Rptr. 467 , 755 P.2d 917 ]; Williams, supra, 44 Cal.3d at p. 1152.)
Moreover, the aggravating evidence which defendant helped the prosecutor present was fairly insubstantial (testimony concerning an arrest for a prior unadjudicated attempted robbery) when compared with the other aggravating circumstances in the case. Finally, even if defendant had not been allowed to represent himself, he still would have had the right to address the jury and request a death sentence. (See Guzman, supra, 45 Cal.3d at p. 962.)
Thus, I would conclude that the grant of self-representation with cocounsel or advisory counsel did not substantially affect the course or outcome of the penalty trial. Under the circumstances here, I agree that the judgment of death should stand.