People v. Dent

CHIN, J.

I concur but only under compulsion of Faretta v. California (1975) 422 U.S. 806 [ 95 S.Ct. 2525 , 45 L.Ed.2d 562 ] (Faretta) and its progeny. Subject to review of his other contentions, it appears defendant *223 received a fair trial. His guilt seems beyond question. And I have no doubt that counsel represented him better than he would have done himself. 1 But, under Faretta , none of this matters. We must reverse the judgment because the trial court did not allow defendant to represent himself.

In Faretta , over strong dissents, the high court found implied in the United States Constitution an unexpressed right of self-representation. ( Faretta, supra, 422 U.S. 806 ; see id. at pp. 836-846 [95 S.Ct. at pp. 2541-2547] (dis. opn. of Burger, C. J., joined by Blackmun and Rehnquist, JJ.), 846-852 [95 S.Ct. at pp. 2546-2550] (dis. opn. of Blackmun, J., joined by Burger, C. J., and Rehnquist, J.).) I agree with Justice Mosk’s observation: “It was unfortunate that Faretta v. California [, supra,] 422 U.S. 806—a noncapital case—in recognizing a general right of self-representation did not distinguish between mere traffic infractions and the heightened requirement of cases in which the issue is life or death.” (People v. Clark (1992) 3 Cal.4th 41, 174 [ 10 Cal.Rptr.2d 554 , 833 P.2d 561 ] (dis. opn. of Mosk, J.).) I also sympathize with his view that “[i]f there is the slightest doubt of the knowledge and abilities of the defendant to effectively duel with the skilled prosecutor, the trial court should deny self-representation at the very outset.” (Ibid.) The problem is that this view is not the law of the land.

As Justice Richardson once observed in concurring in a similar reversal of a death judgment, “The trial court in this death penalty case took the understandable position that, because of the serious nature of the charges facing defendant, he should not be permitted to represent himself. Such a solicitous approach, however, evidently violated Faretta v. California [, supra,] 422 U.S. 806 , which limits the trial court’s inquiry to the issue whether the defendant knowingly and intelligently waived his right to counsel, and was ‘aware of the dangers and disadvantages of self-representation . . . .’ (P. 835 [ 45 L.Ed.2d at p. 582 ].) It is not, however, essential that defendant be competent to serve as counsel in a criminal case. (P. 836 [ 45 L.Ed.2d at p. 582 ].) It is enough that he intelligently waive his right to an attorney and that he understand the risks. This formulation may be dubious but it is the law, even in a capital case.” (People v. Joseph (1983) 34 Cal.3d *224 936, 950 [ 196 Cal.Rptr. 339 , 671 P.2d 843 ] (conc. opn. of Richardson, J.).) Any lingering doubt that this is, indeed, the law was eliminated in Godinez v. Moran (1993) 509 U.S. 389 [ 113 S.Ct. 2680 , 125 L.Ed.2d 321 ], a capital case.

This was not always the situation in California. As the title Faretta v. California implies, the defendant, Faretta, challenged California law in effect at the time. That law was quite different from what the high court now decrees. In People v. Sharp (1972) 7 Cal.3d 448 [ 103 Cal.Rptr. 233 , 499 P.2d 489 ], we unanimously found no constitutional right of self-representation. Indeed, as we explained, the California Constitution had recently been amended to permit the Legislature to require that felony defendants be represented by counsel. (People v. Sharp, supra, at p. 463, appen.) In anticipation of that amendment, and to take effect on its adoption, the Legislature passed laws requiring counsel for all capital defendants. (Pen. Code, §§ 686, subd. 2, 686.1, 859, 987, subd. (b).)

These statutes still exist, although obviously Faretta rendered them invalid. The courts of this state properly ignore them today. But the legislatively stated policy behind these statutes remains the policy of this state, although it cannot be given effect: “The Legislature finds that persons representing themselves cause unnecessary delays in the trials of charges against them; that trials are extended by such persons representing themselves; and that orderly trial procedures are disrupted. Self-representation places a heavy burden upon the administration of criminal justice without any advantages accruing to those persons who desire to represent themselves.” (Stats. 1971, ch. 1800, § 6, p. 3898.)

This case contains a great irony. At retrial, defendant may wish to be represented. If so, he will not be bound by the request to represent himself that elicited the trial court’s error and won him this reversal. Nothing prevents him from requesting and gaining the benefit of counsel for the retrial. If he does request counsel, then all that the trial court’s error in denying self-representation will have accomplished is to give defendant two trials, not just one, in which he is represented by counsel. This result is hard to explain in any rational manner.

There is much to be said for modifying Faretta , at least in capital cases, to give the trial court discretion to deny a request for self-representation when no good ground exists for the request and the defendant is not capable of effective self-representation. But such modification is not for us to do. As Justice Richardson stated, we must “await further instruction on the point from the high court which originated the Faretta principle.” (People v. *225 Joseph, supra, 34 Cal.3d at p. 951 (conc. opn. of Richardson, J.).) In the meantime, we have no choice but to obey the high court and reverse this judgment.

Baxter, J., and Brown, J., concurred.

The majority states that “the evidence against defendant was overwhelming, and our review of the record indicates defendant was vigorously and adequately represented and received a fair trial.” (Maj. opn., ante, at p. 222.) But it does not state what that evidence was or describe the crimes, and it does not state anything defense counsel did.

In August 1988, defendant robbed Byung Kim, a merchant, shortly after Kim withdrew $80,000 from a bank to use in his business. Defendant shot and mortally wounded Kim in Kim’s van, then fled in the van with the victim. He was apprehended later after he shot a retired police officer. Witnesses observed these events and defendant confessed to the crimes. Defendant had been convicted of voluntary manslaughter in 1983. Defense counsel presented a substantial case in mitigation.