# People v. Clark

> California Supreme Court · July 30, 1992 · 3 Cal. 4th 41

URL: https://www.frixlaw.com/law-library/cases/9790845

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. DOUGLAS DANIEL CLARK, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** July 30, 1992
- **Citations:** 3 Cal. 4th 41; 10 Cal. Rptr. 2d 554; 92 Daily Journal DAR 10654; 833 P.2d 561; 92 Cal. Daily Op. Serv. 6658; 1992 Cal. LEXIS 3491
- **Precedential status:** Published
- **Opinion:** Dissent by Kennard
- **Judges:** Arabian, Mosk, Kennard
- **Cited by:** 309 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by People v. Pearson, 56 Cal. 4th 393 (2013).
- Negative treatments: 3
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9790845

## How later opinions describe it (automated extraction)

- holding that Faretta “did not establish a game in which a defendant can engage in a series of machinations, with one misstep by the court resulting in a reversal of an otherwise fair trial,” or “a charade in which a defendant can continually manipulate the proceedings in the h…

## Opinion text

KENNARD, J., Dissenting.
This death penalty trial was a judge’s nightmare: an extremely complex multiple-murder case in which an obstreperous, manipulative defendant insisted on exercising his constitutional right to represent himself. Obviously frustrated with defendant’s course of conduct, the trial court, confronted with defendant’s decision to stand mute, incorrectly deemed that decision to be a waiver of defendant’s right to represent himself, and appointed counsel to represent him.
*175 Much as I sympathize with the trial court’s desire to terminate defendant’s pro se status under the circumstances of this case, defendant had a right to remain silent in the face of the prosecution’s allegations. By preventing him from doing so, the court violated defendant’s constitutional right to act as his own attorney and to present his case in his own way. I cannot accept the majority’s conclusion that by being silent defendant obstructed the proceedings against him, thus warranting revocation of his right to self-representation. I therefore dissent.
Background
On October 13, 1982, the trial court granted defendant’s request, made in the midst of trial, to represent himself. (See Faretta v. California (1975) 422 U.S. 806 [ 45 L.Ed.2d 562 , 95 S.Ct. 2525 ].) Defendant conducted his own defense until November 1, 1982. On that day, outside the presence of the jury, the court denied defendant’s motion to recuse the prosecutor. When trial recommenced and the court told defendant that it was his turn to cross-examine the prosecution’s witness, defendant replied: “Your Honor, the defense stands mute throughout the rest of the trial.” Defendant gave no reason for his decision.
The court immediately declared a recess and, outside the jury’s presence, announced its conclusion that defendant had renounced his right to act as his own attorney. Defendant responded that he had a right to stand mute and that he wished to continue to represent himself. The trial court replied: “If you open your mouth again without my permission, I’ll have it gagged. ... I find that you’ve renounced your pro per privileges. You do not wish to proceed to represent yourself. H] Mr. Keith and Ms. Watson, who have been standby counsel, will now resume.” Before the trial continued, defendant asked the court why it had terminated his right to represent himself. The court responded: “On the grounds that you decided to stand mute . . . .”
That afternoon, Attorneys Keith and Watson, who had been observing the trial in the courtroom, represented defendant over his objection. Attorney Keith conducted cross-examination on defendant’s behalf. The next morning, defendant informed the trial court that if it would restore his right to represent himself, he would abide by the court’s ruling and would actively defend himself. The court then permitted defendant to resume his self-representation. Defendant conducted his own defense until December 6, 1982, when, based on the trial court’s finding that defendant had engaged in disruptive behavior, the court terminated defendant’s right to act as his own attorney and reappointed counsel to represent him.
*176 Discussion
The Sixth Amendment to the federal Constitution guarantees to defendants in criminal prosecutions not only the right to representation by an attorney, but also the right to conduct the defense in person without counsel. (Faretta v. California, supra, 422 U.S. 806 .) A defendant who elects self-representation, rather than representation by counsel, may conduct the defense in whatever manner the defendant deems appropriate, so long as the defendant does not “use the courtroom for deliberate disruption.” (Id. at p. 834, fn. 46 [ 45 L.Ed.2d at p. 581 ]; see McKaskle v. Wiggins (1984) 465 U.S. 168, 177-178 [ 79 L.Ed.2d 122, 132-133 , 104 S.Ct. 944 ].) A self-represented defendant may even conduct the defense by standing mute, as this court has recognized on several occasions.
In People v. Teron (1979) 23 Cal.3d 103 [ 151 Cal.Rptr. 633 , 588 P.2d 773 ], a self-represented defendant asked no questions of the prosecution’s witnesses, presented no evidence on his own behalf, and made no opening or closing statement. On appeal, the defendant contended that the trial court should have stepped in and terminated self-representation once it became clear that the defendant would make no effort to obtain a favorable verdict. We rejected the contention, saying that the defendant “bears no duty to present a defense.” (Id. at p. 115.)
We reaffirmed this conclusion in People v. McKenzie (1983) 34 Cal.3d 616 [ 194 Cal.Rptr. 462 , 668 P.2d 769 ], contrasting a self-represented defendant’s right to stand mute with a defense attorney’s duty to provide effective assistance. In McKenzie , the defendant was represented by an attorney who refused to participate in the trial, beyond appearing in court, after the trial court had denied certain defense motions. Defense counsel made no opening or closing statements, asked no questions of jurors on voir dire, cross-examined no prosecution witnesses, and raised no objections to the prosecution’s evidence. We held that the attorney’s conduct had deprived the defend - ant of his right to the effective assistance of counsel. But we carefully distinguished the situation of a self-represented defendant: “The choice of self-representation preserves for the defendant the option of conducting his defense by nonparticipation. A competent defendant has a right to choose ‘simply not to oppose the prosecution’s case.’. . . If the defendant chooses to defend himself by not participating in the trial, he, unlike his attorney, is free to do so, but once this choice is made he cannot thereafter claim ineffective assistance of counsel as a basis for reversal on appeal.” (Id. at pp. 628-629, citations omitted, italics added.)
Recently, in People v. Bloom (1989) 48 Cal.3d 1194 [ 259 Cal.Rptr. 669 , 774 P.2d 698 ], we again emphasized that a self-represented defendant should *177 be free to conduct the defense in any manner that does not disrupt the trial. In Bloom , a death penalty case, the defendant contended on appeal that the trial court had abused its discretion when it permitted him to act as his own attorney at the penalty phase for the announced purpose of asking the jury to return a death verdict. Rejecting the contention, we explained that although a defendant may conduct a defense ultimately to the defendant’s detriment, the defendant’s choice “ ‘must be honored out of “that respect for the individual which is the lifeblood of the law.” ’ ” (Id. at p. 1221, citations omitted.)
A self-represented defendant’s right to stand mute at trial has been recognized not only by this court, but by federal appellate courts as well. The Sixth Circuit has put it this way: “[J]ust as it is the accused’s right to plead guilty or nolo contendere to the charges against him, it is equally an accused’s personal constitutional right to face the charges alone, either by standing mute and forcing the state to its proofs or by attempting to defend himself.” (U.S. v. McDowell (6th Cir. 1987) 814 F.2d 245, 250 ; see also U.S. v. Clark (7th Cir. 1991) 943 F.2d 775, 782 ; Savage v. Estelle (9th Cir. 1990) 924 F.2d 1459, 1464, fn. 10 .)
Without directly denying that self-represented defendants have a right to stand mute, the majority asserts that in this case the trial court properly terminated defendant’s right to conduct his own defense because he had engaged in “ ‘serious and obstructionist misconduct’ ” that “ ‘abuse[d] the dignity of the courtroom.’ ” (Maj. opn., ante, p. 115, quoting Faretta v. California, supra, 422 U.S. at pp. 834-835, fn. 46 [ 45 L.Ed.2d at p. 581 ].) But in what respect is mere silence obstructive? And how does such silence abuse the court’s dignity? These are questions that the majority does not, and cannot, answer.
I fail to see how in this case defendant’s nonparticipation in his defense could be deemed an affront to the dignity of the trial court. It would appear that rather than obstructing the trial proceedings, the defendant’s conduct in standing mute (had it been permitted by the trial court) would have expedited them. Obviously, trial time is shortened considerably when the defense does not cross-examine prosecution witnesses and calls no defense witnesses.
The majority attempts to justify the trial court’s termination of defendant’s right of self-representation on several grounds. None is persuasive, as discussed below.
The majority asserts that termination of the right of self-representation was permissible here because, viewed in context, the act of standing mute *178 was “part of a deliberate course of conduct designed to cause as much disruption as possible.” (Maj. opn., ante, p. 116.) I find this analysis unpersuasive in two respects. First, I question whether defendant’s behavior during the discussion preceding his decision not to participate in the trial was deliberately disruptive. Although defendant’s motion to recuse the prosecutor was clearly meritless, the record suggests that defendant believed it to be proper, and that he attempted to argue it in an orderly fashion. More important, however, the trial court did not terminate defendant’s right of self-representation for engaging in a pattern of disruptive behavior; rather, as the court repeatedly explained, its ruling was based on defendant’s decision to stand mute.
The majority characterizes defendant’s nonparticipation as “an attempt to either inject error into the case, or to pressure the court into reconsidering its earlier rulings ....’’ (Maj. opn., ante, p. 115.) But so long as defendant was not disrupting the proceedings, he was entitled to remain silent regardless of his motives. Moreover, it is difficult to conceive how the act of standing mute, which carries with it no coercive power, could have injected error into the record or pressured the trial court into reversing its rulings. Defendant may have believed that if he remained silent while representing himself, any ensuing conviction would be reversed for incompetence of counsel, and that to avert such a reversal the trial court would be compelled to change its rulings. If this was defendant’s belief, he was mistaken, because a self-represented defendant may not argue his or her own incompetence as a ground for reversal on appeal. (Faretta v. California, supra, 422 U.S. at p. 835, fn. 46 [ 45 L.Ed.2d at p. 581 ]; People v. McKenzie, supra, 34 Cal.3d at pp. 628-629.)
The majority apparently would permit a self-represented defendant to stand mute only if that decision is based on a “sincere desire to withhold a defense.” (Maj. opn., ante, pp. 114-115.) But a trial court may not condition the right of self-representation on a judicial evaluation of the sincerity of the defendant’s desires. Generally, a self-represented defendant’s knowing and intelligent decision not to participate in the trial should not be considered as a waiver of the right of self-representation. As we said in People v. Bloom, supra, 48 Cal.3d at page 1222 , “both court and counsel are obligated to respect a competent defendant’s considered and voluntary decisions on matters of fundamental importance affecting trial of the action . . . .” The decision by a defendant who has chosen self-representation and has decided to remain silent in the face of the prosecution’s case is one of “fundamental importance,” and must therefore be respected by the trial court. Although the court may warn the defendant that such a decision is unwise, it must permit the decision to stand.
*179 When the trial court in this case denied defendant the right to stand mute while acting as his own attorney, it violated defendant’s right to conduct his own defense, as guaranteed by the Sixth Amendment to the federal Constitution and enunciated by the United States Supreme Court in Faretta v. California, supra, 422 U.S. 806 . “In determining whether a defendant’s Faretta rights have been respected, the primary focus must be on whether the defendant had a fair chance to present his case in his own way.” (McKaskle v. Wiggins, supra, 465 U.S. at p. 177 [ 79 L.Ed.2d at p. 132 ].) Here, the trial court’s ruling that defendant could not represent himself if he elected to remain silent deprived defendant of a “fair chance to present his case in his own way,” and thus violated defendant’s constitutional right to act as his own attorney.
The majority asserts that the dissent “cites [no cases] compelling a court to acquiesce in a defendant’s request to stand mute under circumstances even remotely similar to those of this case.” (Maj. opn., ante, p. 116.) The converse is also true: the majority cites no cases upholding a trial court’s decision to terminate a defendant’s right of self-representation “under circumstances even remotely similar to those of this case.” This dearth of precedent suggests, if anything, that most trial courts do not view a self-represented defendant’s act of standing mute as a waiver of the defendant’s Faretta rights, and have allowed defendants to continue representing themselves in circumstances such as these. 1
The trial court’s erroneous ruling was not corrected when, the morning after it had appointed counsel to represent defendant, the court reinstated defendant’s right to represent himself after defendant promised to actively participate in the trial. The court never rescinded its ruling that defendant could not stand mute, and defendant knew that if he again elected to do so, the court would regard this act as a basis to revoke his right to represent himself. Defendant’s right of self-representation was therefore impaired not only for the afternoon on which he was represented by counsel, but for the remainder of the trial.
Because, in contrast to the majority, I am of the view that the trial court erred when it terminated defendant’s right of self-representation because he chose to stand mute, the remaining question is whether the error requires reversal of the judgment. A review of the applicable decisions of the United States Supreme Court leads me to conclude that reversal is compelled.
*180 When a trial court denies a defendant the constitutionally guaranteed right to act as his or her own attorney, the conviction must be reversed irrespective of whether the denial influenced the outcome of the trial. The United States Supreme Court has expressly said so: “Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to ‘harmless error’ analysis. The right is either respected or denied; its deprivation cannot be harmless.” (McKaskle v. Wiggins, supra, 465 U.S. at p. 177, fn. 8 [ 79 L.Ed.2d at p. 133 ]; see also People v. Joseph (1983) 34 Cal.3d 936, 946 [ 196 Cal.Rptr. 339 , 671 P.2d 843 ].)
Here, in ruling that defendant, who had chosen to represent himself, could not stand mute at trial, the trial court deprived defendant of his constitutional right to conduct his defense “in his own way.” (McKaskle v. Wiggins, supra, 465 U.S. at p. 177 [ 79 L.Ed.2d at p. 132 ].) Under the high court’s decision in McKaskle , the denial of that right requires reversal of the judgment against defendant.
Appellant’s petition for a rehearing was denied September 23, 1992. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.
The majority also remarks that other than Faretta itself, this dissent cites no cases finding a-violation of a defendant’s right to self-representation. (Maj. opn., ante, p. 116.) The point of this remark eludes me. Does the majority doubt that such cases exist? Is the majority suggesting that the right of self-representation cannot be violated?

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9790845. Public record. Not legal advice.