Petition — California v. Austin

Gupreme Court, U. &

FILED

JAN 2% 1980

IN THE SUPREME COURT

OF THE

UNITED STATES

, 1979

0. 2971041

| MICHAEL RODAK, JR., CLERNE.

State of California,

Pettittoner

VS.

4 Robert Stanley Austin,

Respondent

Petition For Writ of Certiorari

To The Appellate Department

Of The Superior Court

For the County of Los Angeles,

California

John A. Vander Lans

City Prosecutor

Robert. R. Recknagel

Assistant City Prosecutor

Gerry L. Ensley

Deputy City Prosecutor

By Gerry L. Ensley

Attorneys for Petitioner.

People of the State of California

400 W. Broadway

Long Beach, California 90802

Telephone: (213) 437-0711

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IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1979

No. eeesenpezeeeeaeeeaese

State of California,

Lad . Petitioner —

vs.

Robert Stanley Austin,

Respondent

Petition For Writ of Certiorari

To The Appellate Department

Of The Superior Court-

For the County of Los Angeles,

California

John A. Vander Lans

City Prosecutor

Robert. R. Recknagel

Assistant City Prosecutor

Gerry L. Ensley :

Deputy City Prosecutor.

By Gerry L. Ensley

Attorneys for Petitioner.

People of the State of California

400 W. Broadway

90802

Mi Long Beach, California

- Telephone: (213) 437-0711

SUBJECT INDEX

Opinions Below

Jurisdiction

Questions Presented

Constitutional Provisions Involved

Statement

Reasons For Granting The Writ

Conclusion

Appendix

CITATIONS

Cases:

Boykin v.

08.206

Alabama, 395

¢

Faretta v. California,

422 U.S. 806, 835

Gideon v. Wainwright,

372: U.Sc2398

Gunn v. University Committee

399:..U.S...383, 390 -n..6

In re Birch, (1973) 10 Cal.3d

314,319, 321 [110 Cal.Rptr.

212,515 P 2d 12]

Cases:

In re Johnson, (1965) 62 Cal.2d

325, 331-333 [42 Cal.Rptr. 228,

398 P.2d 420]

In re Tah], (1969) 1 Cal.3d

iat Cal.Rptr. 572%, 460 P.2d

Johnson v. Zerbst, 304 U.S. 276,

298

People v. Black (1978) 68 I11.

App.3d [385 N.E.2d 899, 903].

People v. Enciso (1972) 25 Cal.

App.3d 49, 57 [101 Cal.Rptr.

590, 594].

People v. Fabricant (1979) 91

Cal.App.3d 706, 712 [154 Cal.

Rptr. 340, 343].

People v. Salazar (1977) 74 Cal.

App.3d 875, 889 (141 say tad olal

493,, 761}. ;

People v. Torres (1979) 96 Cal.

App.3d 14 [157 Cal.Rptr. 560].

Perez v. Ledesma, 401 U.S. 82,

87 n.3

Public Service Commission v.

ad Lines, 306 U.S. 204,

Cases: : Page

Russell v. State (1978) Ind.App. 23,25

378 N.E.2d 872, 881-882,

Garrard, P.J.

Stanley v. State (1977) 240 Ga. 18

341 [241 S.E.2d 173,177].

CONSTITUTIONAL, STATUTORY

28 U.S.C. 1257(3) 3

Vehicle Code § 23102(d)

ul

MISCELLANEOUS

American Bar Association Project 17

on Criminal Justice, Standards

Relating to the Defense PUREED 5

§ 5.2.

Miller, “Faretta v. California: 22

. The Law Helps Those Who Help

Themselves,” 28 Hast L.J. 283,

297-299 (1976)

Sue

LAS Se OSB

ee PCA a, 4° eee

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1979

No. eesetcesespeeeeese

State of California,

Petitioner

vs.

Robert Stanley Austin,

Respondent

Petition For Writ of Certiorari

To The Appellate Department

: Of The Superior Court

For The County of Los Angeles,

California

The Long Beach Prosecutor, on behalf

of the State of California, prays that a

writ of certiorari issue to review the

judgment of the Appellate Department of

the Superior Court, Los Angeles County,

California, entered October 22, 1979.

2

OPINIONS BELOW

The opinion of the Appellate Department

of the Superior Court, Los Angeles County,

California, is unreported. We append it

herewith as Appendix A.

The federal constitutional issue to be

reviewed was initiated by People v. Torres

(1979) -96 Cal.App.3d 14 [157 Cal.Rptr.

560] in which we were also counsel of

record. Our petitions for rehearing and

hearing in the Supreme Court of California

were therein denied. We chose not to

petition for certiorari in Torres because

of the technical deficiency in the appel-

late record wherein the criminal defendant

was’ denied the relief which the instant

defendant has gained. Our inadvertent

"success" in Torres prevented us from

seeking further review therein. Public

Service Commission v. Brashear Lines,

306 U.S. 204, 206; Gunn v. University

Committee, 399 U.S. 383, 390 n. 53

Perez v. Ledesma, 401 U.S. 82, 87 n. 3.

3

Our instant case has reversed the con-

viction for failure to give the Faretta

“dangers and disadvantages" advisement at

a pretrial plea of guilty; Torres had

affirmed its conviction.

JURISDICTION

The judgment of the Appellate Depart-

ment of the Superior Court, Los Angeles

County, California was made and entered

October 22, 1979, and a correct copy

thereof is appended herein at Appendix A.

Our request for certification of the in-

stant decision to the California Court of

Appeal was made and denied on November 8,

1979. A correct copy thereof is appended

herewith as Appendix B. The jurisdiction

of this Court is invoked under 28 U.S.C.

1257(3).

4

QUESTIONS PRESENTED

It has never been the practice of

any California court (nor any other state

or federal court that we are aware of) to

require the giving of the Faretta

“dangers and disadvantages" advisement to

criminal defendants outside of the adver-

sary trial context. In the. pretrial, plea

of guilty context California requires

mandatory advisement of (1) the right to

the presence of counsel and/or appointed

counsel (hereinafter the "Gideon advise-

5

The instant decision has reversed

the conviction of a defendant who while

unrepresented pleaded guilty at arraign-

ment to a misdemeanor charge, admitting

the allegation of a prior conviction

(maximum $1000 fine. and/or 1 year in

‘jail, minimum 48 hours in jail and

$250 fine) of driving a vehicle under

the influence of alcohol. [California

Vehicle Code §23102(d)]. This reversal

was required because of the recent

decision of People v. Torres, supra,

construing the federal Faretta Sixth

Amendment right to appear pro se to

extend to the arraignment/plea of .

ment"), (2) jury trial, (3) confrontation

of witnesses, and (4) against self-incri-

mination. These four advisements collecti-

vely are called hereinafter the Boykin-

Tahl advisements, after California's

application of Boykin v. Alabama, 395

U.S. 238; in In re Tahl (1969) 1 Cal.3d

122 [81 Cal.Rptr. 577, 460 P.2d 499]; In

re Birch (1973) 10 Cal.3d 314, 319, 321

[110 Cal.Rptr. 212, 515 P.2d 12]. Other

advisements are also given, e.g., com-

pulsory process, speedy trial, etc., but

failure to give them is not deemed re-

versible constitutional error.

guilty as well as the adversary trial

context. Therefore, in California all

pro se pleas of guilty must include in

addition to Boykin-Tahi the Faretta

"dangers and disadvantages" advisement,

indeed, must require that to be the

initial waiver so that defendant's pro

se status is thereafter constitutionally

"valid" during the defendant's subse-

quent receipt and waiver of the Boykin-

Tahl advisements. The questions pre-

sented are:

6

1. Whether the Sixth Amendment's

right to proceed pro se in the adversary

trial context ‘also extends to the pre-

trial plea of guilty context.

2. Whether the “dangers and disadvan-

tages” advisement requisite for knowing

assertion of pro se representation at

trial (Faretta v. California, 422 .S.

806, 835) is also required at arraignment

in the plea of guilty context. (Johnson

v. Zerbst, 304 U.S. 276, 298; Boykin v.

_ Alabama, supra).

3. Whether federalism is violated by

requiring states to adopt specific feder-

ally defined’ procedures and advisements -

for Sixth Amendment approval of a plea

of guilty.

4. Whether Faretta's "dangers and

disadvantages" advisement can be severed

from the adversary trial context to do

service pretrial as a Sixth Amendment

augmentation to Boykin-Tahl.

5. Whether some combination of advise-

ments other than the joinder of Faretta

with Boykin-fahl is constitutionally

adequate for a plea of guilty in state

7

court, e.g., deletion of both the

Gideon and Faretta advisements.

Faretta v. California, 422 U.S. 806,

835:

"When an accused manages his

own defense, he relinquishes, as

a purely factual matter, many of

the traditional benefits associ-

ated with the right to counsel.

For this reason, in order to

represent himself, the accused

must ‘knowingly and intelligently’

forego those relinquished benefits.

[citations]. Although a defendant

need not himself have the skill

and experience of a lawyer in order

competently and intelligently to

choose self-representation, he '

should be mage aware of the dangers

and disadvagttages of self-represen-

tation so that the record will

establish that ‘he knows what he

is doing and his choice is made

with eyes open.'" (Emphasis added).

“Although not stated in the

[Sixth] Amendment in so many words,

the right to self-representation

-- to make one's own defense person-

ally -- is thus necessarily implied

by the structure of the Amendment.”

Id. 422 U.S. at 819.

8

“The prosecution and amici

curiae on its behalf paint a

picture of fiscal disaster and

administrative chaos unless this

court adopts an all-encompassing

principle to the effect that a

trial court is never obligated at

arraignment to advise a person

accused on any misdemeanor of the

hazards of self-representation.

. . «. Leaving aside the proposi-

tion that controlling case law

emanating from the United States

and California Supreme Courts

mandates rejection of that

position. .

People v. Torres

(1979) 96 Cal.App.

3d 14 n.1 [157 Cal.

Rptr. 560, 562 n.1],

emphasis added.

"A waiver of counsel where the

charge is a serious one is knowing

and intelligent only if preceded

by an admonition that self-repre-

sentation is perilous. (People v.

Fabricant (1979) 91 Cal.App.3d

706, 712, 154 Cal.Rptr. 340.)"

Id. 157 Cal.Rptr.

at 562-563.

“ . . [T]he burden is on the

People to show that defendant was

'. . . made aware of the dangers

and disadvantages of self-repre-

sentation, so that the record

will establish that “he knows

what he is doing and his choice

9

is made with eyes open."

[citation]" (Faretta v.

California (1975) 422 U.S. 806,

835, 95 $.Ct. 2525, 2541, 45 L.

Ed.2d 562)"

Feorrs v. Fabricant

(1979) 91 Cal.App.3d

706, 712 [154 Cal.

Rptr. 340, 343].

"The Faretta court's acknow-

ledgement of the requirement

that a defendant must be posses-

sed of sufficient information

concerning the perils of self-

representation . . . has not

changed the law governing the

manner in which the process of

intelligent waiver must appear

in the record."

People v. Torres,

supra, 157 Cal.Rptr.

at 565.

"The statement on appeal

expressly states that appel-

lant [Austin] was not advised of

the dangers and disadvantages

of self-representation as

required by Faretta v. California

[citation]. The docket does

not contradict this. In People

v. Torres [citation] the Court

of Appeal addressed a factual

situation closely analogous to

the facts of this case.

10 r

‘ . After discussing waiver of

counsel in municipal courts, the

Torrea opinion goes on to state:

'If, ti.erefore, the record on

appeal of the case at bar compel -

ted the conclusion that Torres

was not advised of the dangers

of self-representation, reversal

of the judgment would be required. '

.. [citation]. We do not reach any

other issues."

People v. Austin, unpublished slip

opinion, p. 2, lines 1-21; emphasis

added.

STATEMENT

Our facts are undisputed. Respondent

was arrested about midnight on February

9, 1979 and charged that date with driving

his automobile under the influence of alco-

hol. A prior similar conviction occuring

November 16, 1978, was also charged.

At his arraignment, February 9, 1979,

Respondent was given en masse an oral

statement of his legal rights by the muni-

cipal court judge. Mass courtroom arraign-

ment of misdemeanor arrestees was approved

in California by In re Johnson (1965) 62

Cal.2d 325, 331-333 [42 Cal.Rptr. 228, 398

P.2d 420].

11

Among the orally recited rights were

the following: right to counsel and

appointed counsel, continuance to hire

counsel, public defender, speedy trial

(statutory time limits), public trial

by court or jury, reasonable bail, con-

frontation and cross-examination of

witnesses, to silence, remain off the

stand, compulsory process for witnesses

(for those pleading guilty the 4 Boykin-

Tahl rights are repeated), immediate

sentencing, sentencing considerations,

probation, dismissal after probation.

Each misdemeanor defendant is then

individually arraigned and asked if he

understood the earlier statement of

rights. Those pleading guilty are

again (a third time) reminded that such

a plea is a waiver of the 4 Boykin-

Tahl rights. Thereafter each individual

plea is taken. Procedures vary somewhat

among judges but generally follow the

foregoing, which was obtained from Judge

Zeiger, the instant arraigning judge,

regarding his practice in February,

1979. Court reporters are not custo-

marily used in the Long Beach Municipal

12

Court; one was not used herein.

Respondent was present in court on

February 9, 1979, and heard the fore-

going statement of rights. He there-

after chose to plead guilty and admit

the veracity of the alleged prior con-

viction. He was never. advised of the

“dangers and disadvantages" of repre-

senting himself at arraignment. He

personally and expressly waived counsel

pursuant to the “Gideon advisement" as

part of his Boykin-Tahl waivers.

Prior to sentencing Respondent moved

to set aside the plea as constitutionally

defective inter alia for fzilure to

advise of the "dangers and disadvantages"

of self-representation. The trial court

denied the motion, and Respondent

appealed. The Appellate Department of

the Superior Court reversed, declaring

itself bound by Torres in requiring

advisement of Faretta’s “dangers and

disadvantages" warning at arraignment,

and declared the instant plea of guilty

constitutionally defective. (Appendix A).

13

Our petition for certification for

higher review by the California Court of

Appeal was denied, thus rendering the

Appellate Department opinion final for.

all California purposes. (Appendix 8B).

Recently we obtained temporary stay of

enforcement of Torres to stop wholesale

invalidation of all pro se plea of guilty

convictions, thousands of which began to

be declared unconstitutional as soon as

Torres became final. The stay exists

pending your determination regarding

this Petition for Certiorari. Respondent

has been out of custody on bail through-

out these proceedings.

REASONS FOR GRANTING THE WRIT

The decision below should be reviewed

because it (following forres) erroneously

interprets both (1) the substance of the

Paretta Sixth Amendment right and (2) the

function of the "dangers and disadvantages"

advisement to require said advisement as

a constitutional prerequisite for a plea

of guilty in a state court.

na

14

Thereby is that advisement severed from

its constitutional purpose, t.e., to

assure voluntary constitutional assertion

of the Faretta pro se right at trial, and

applied in its severed capacity as an

unwitting augmentation to the well-

settled pronouncements of Boykin-Tahl

(constitutional advisements and waivers

pursuant to a plea of guilty in state

court). Not only is that a misreading of

Faretta, but were the reading correct,

it still is non-sequitur that states

could not be free to tailor their own

advisements during the plea of guilty

so as to comply with Faretta wtthout

giving the “dangers and disadvantages"

advisement.

1. Faretta-Caltfornta, supra, was

never intended to apply in the non-

adversary (plea of guilty) context. The

Faretta right guarantees the constitu-

tional assertion of one's individualism

(usually to the detriment of substantial

justice) for a defendant in an adversary

criminal trial. The "dangers and disad-

vantages" advisement, as prerequisite

to knowing assertion of the Faretta |

15

right, protects society's constitutional

interest in fairness and defendant's

constitutional interest in voluntariness.

In the plea of guilty context the

interests of fairness (justice) and

voluntariness are protected by the

Gideon advisement as part of the Boykin-

Taht waivers. :

The Faretta pro se right, while fully

applying to pretrial adversary evidenti-

ary hearings, cannot apply to arraignment

because arraignment is never an adversary

evidentiary hearing. Since the substan-

tive Faretta pro se right does not exist

at arraignment, the “dangers and dis-

advantages" advisement -- necessary for «%

constitutionally "voluntary" assertion

of the substantive Faretta right

(Johnson v. Zerbst, supra) -- likewise

does not exist therein.

2. Faretta cannot exist at the plea

“of guilty because it is impossible for

a defendant to assert his right to

individualiem (". . . to go to jail

under his own banner," Blackmun, Jes

dissenting, Faretta, supra, 422 U.S.

at 849) when he has chosen to plead

16

guilty. Faretta is the Sixth Amendment

right to carry one's own adversary banner

in front of the trier of fact despite the

injustice which may result. How can that

interest in individualism be asserted in

the plea of guilty context, where defen-

dant has chosen to forego the possession

of any “banner” at all? By choosing not

to contest the charge(s), a defendant

cannot have any constitutionally protect-

able interest in asserting his individu-

alism. The Gideon advisement protects

defendant's interest in justice/fairness

and assures that his waiver of counsel is

knowing and voluntary (Boykin-Tahl).

Having protected defendant's interest in

justice/fairness, and no defense interest

in personal autonomy being thereafter

possible, we never reach the issue of

Faretta.

We express no opinion as to whether

Boykin v. Alabama, supra, needs augmenting.

We note only that this case does not pre-

sent that issue. Irrespective of the

desirability veZ non of expanding the

Boykin advisements, they cannot be

expanded (as was done herein) by wholesale

17

adoption of foreign Faretta principles,

which were designed to protect wholly

different constitutional interests.

3. Faretta is not necessary at

arraignment to protect defendant's

volition in choosing to plead guilty or

not guilty, since the plea must be

entered by defendant personally irrespec-

tive of the presence of counsel. The

defendant alone must decide what plea

to enter, whether to waive jury trial,

and whether to testify on his own behalf;

all other decisions are “the exclusive

province of the lawyer." American Bar

Association Project on Criminal Justice,

Standards Relating to,the Defense Func-

tien, § 3.2.

4. If the substantive Faretta right

and its obligatory “dangers” warning

apply to situations outside the adver-

sary evidentiary hearing context, such

as arraignment, there is no reasonable

limitation by which Faretta can be

restrained from expanding to “occupy

the field" now held by Gideon. The

Miranda warning, e.g., will now have

to include a Faretta warning in addition

18

to the Gideon advisement. cf. Stanley v.

State (1977) 240 Ga.. 341 [241 S.E.2d.

473.6: 177].

5. Even if arguendo the substantive

pro se right attaches at arraignment,

it does not follow that pre-advisement

thereof need be made. The “dangers and

disadvantages" advisement is triggered

only by affirmative assertion of the

pro se right at an adversary evidenti-

ary hearing, t.e., when defendant appears

pro se at such a hearing and announces

“ready to proceed." Defendant has there-

by chosen to assert his pro se right

(without advisement of the existence of

the pro se constitutional right), and

this triggers the Faretta "dangers"

warning to make the pro se assertion

sonstitutionally "voluntary" (Johnson

v. Zerbst, supra). But Faretta does

not require blanket advisement of the

“dangers” warning at arraignment because

defendant is not “asserting” anything.

The Torres opinion mistakenly assumes

that the pro se defendant at arraign-

ment is necessarily “asserting” his

waiver of counsel. The Gideon advisement

19

assures that defendant's appearance pro

se is constitutionally valid, z.e., his

waiver of counsel is knowing and volun-

tary.

Waiving counsel is not the same as

asserting the pro se Faretta right, which

thereafter requires the "dangers" warning.

A defendant can appear pro se totally ir-

respective of whether he waives counsel.

"Standby counsel" protects defendant's

Gideon interest (counsel/fairness) while

defendant simultaneously asserts his

Faretta pro se right at an adversary evi-

dentiary hearing. (Theoretically no

"dangers" warning need be given in "stand-

by" or “advisory” or “hybrid” counsel

cases because defendant's interest in

fairness is not being sacrificed. )

Waiving counsel without asserting defen-

dant's self-interest in individualism,

Z.e., pleading guilty at arraignment,

does not trigger the “dangers” warning

because no individualism is being

asserted, nor can be.

6. Torres erroneously construed the

Faretta “dangers” warning to be the

equivalent of informing a defendant of

20

his pro se right (which it clearly does

not), which existence-informing function

(advisement) is constitutionally required

for knowing voluntary waiver of the

right (Johnson v. Zerbst, supra; Boykin

v. Alabama, supra). Perceiving that the

Gideon advisement and the Faretta

"dangers" warning protect the identical

interest in defendant's justice/fairness,

indeed, they are obverse sides of the

same coin -- one stating affirmatively

the existence of the right to counsel,

the other warning negatively against

waiver thereof -- and seeing that the

Gideon advisement is necessary for knowing

waiver of counsel, Torres mistakenly ex-

tended the Faretta "dangers" warning,

analogous to Gideon, for knowing "waiver"

of the Faretta pro se right. Since the

Gideon advisement is clearly required by

Boykin-Tahl in the plea of guilty con-

text, so also, reasoned Torres, is the

"dangers" warning. But this puts the

cart before the (nonexistent) horse.

The horse is nonexistent because the

substantive Faretta pro se right does

not exist at arraignment. One need not

21

be advised of a right which has no exis-

tence at the time of the advisement. cf.

Reasons 1-4 herein. The cart is before

it because the Faretta “dangers” warning

does not advise of the existence of the

pro se right. To the contrary, it advises

against assertion of that pro se right.

An obverse Faretta advisement, advising of

the existence of the pro se right -- not

the “dangers and disadvantages" warning

-- has been consistently rejected in

California. ef. People v: Enciso (1972)

25 Cal.App.3d 49, 57 [101 Cal.Rptr. 590,

594], decided by the same court which

decided Torres, and People v. Salazar

(1977) 74 Cal.App.3d 875, 889 [141 Cal.

Rptr. 753, 761].

The confusion engendered by Faretta's

Boykin-like "record" requirement of advise-

ment of the "dangers" warning, without

requiring Zerbet-like advisement of the

existence of the right to self-represen-

tation (thus vitiating any knowing waiver

of the substantive pro se right) clearly

calls for explanation by this Court. It

is easy to misconstrue the Faretta

"dangers" warning as the equivalent of

22

Zerbst'’s existence-informing advisement

necessary for waiver thereof, which lat-

ter advisement must be contained in the

record and specifically articulated pur-

Suant to Boykin-Tahl for a valid plea of

guilty.

The most difficult issue presented

herein is not Faretta's "dangers" advise-

ment at arraignment, which is clearly

erroneous -- the Gideon advisement al-

ready performs that function -- but the

obverse advisement: the advisement of

the constitutional right to forego coun-

sel. Does Johnson v. Zerbst, supra,

require advisement of the existence of

the pro se right (not the "dangers"

advisement) for there to be valid waiver

of the pro se right by defendants who

exercise their Gideon right to counsel?

The answer is probably “yes", but it

depends upon whether counsel representa-

tion, as opposed to self-representation,

is the “natural state" of the accused

since Faretta. Cf. Miller, "Faretta v.

California: The Law Helps Those Who

Help Themselves," 28 Hast. L.dJ. 283,

297-299 (1976) and cases cited therein.

Pe age eee \

He

A variation on the federal “optional

notice" rule was recently decided in

Indiana, requiring advisement of the

pro se right (not the "dangers" advise-

ment) at arraignment. Russell v. State

(1978), Ind.App. 378 N.E.2d 872, 881-882,

Garrard, P.J., concurring. We suggest

the Indiana rule, giving contradictory

Gideon and pro se advisements, to be

inferior to the pre-Torres California

rule, giving only the Gideon advisement

at arraignment. cf. Reason 7 hereafter.

Clearly, states ought not to be

allowed to decide for themselves which is

the "natural state" of the accused, t.e.,

with or without counsel. The Sixth Amend-

ment precludes that. But it does not

preclude the states from tailoring their

own advisements within the scope of the

substantive constitutional rights.

Torres must be reversed by this Court

not only because it grossly misconstrued

Faretta, but so that the states are in-

formed that Faretta does not require _

wholesale renovation of state arraignment

procedures at a cost of millions of con-

victions obtained by pro se plea of

ems vA

at

24

guilty. Lacking prospective limitation,

Torres has now used Faretta to render un-

constitutional all California convictions

entered by way of pro se plea of guilty.

The slaughter is in the millions. Cf.

appendices to Justice Hanson's concurring

opinion in Torres, 157 Cal.Rptr. at 573-

575.

On the other hand, states must be

instructed that Faretta is not merely a

super-waiver of counsel, thus allowing

them to ignore the giving or recording of

the separate "dangers and disadvantages"

advisement when a criminal defendant

appears pro se at a state adversary

evidentiary hearing.

"Illinois has never required

that defendant be advised speci-

fically of the dangers and dis-

advantages of self-representation .

in addition to the admonitions of

Rule 401(a) [waiver of counsel]."

People v. Black

(1978) 68 I11.App.3d

309 [385 N.E.2d 899,

903].

Faretta is not modern augmentation to

the waiver of counsel; it is the asser-

tion of an independent constitutional

= EE

25

right. The vast majority of state

decisions regarding Faretta have con-

strued the "dangers" warning as merely —

adjunct to waiver of counsel, and there-

fore largely dispensed with it. This

needs your immediate correction, as

state courts are thereby violating an

express provision of Faretta, infecting

their pro se trials with reversible error.

7. Indiana's recent resolution of

which combination of constitutional ad-

visements should be given at arraignment

(Russell v. State, supra) reiterates

viable state alternatives in formulating

the advisements. Torres (and Austin

herein) erroneously assume that the

Sixth Amendment requires the Faretta

"dangers" advisement at arraignment.

While Torres and its progeny Austin are

clearly wrong, nevertheless it is pro-

bably true that (as with Indiana) some

form of advisement of the constitutional

right to proceed pro se is required.

Johnson v. Zerbst, supra.

What should be the form of the consti-

tutional advisements at arraignment?

Clearly the states should be free to

26

draft their own combinations of advise-

ments. Torres precludes any such state

autonomy:

“If, therefore, the record

on appeal of the case at bar com-

pelled the conclusion that Torres

was not advised of the dangers

of self-representation [at ar-

raignment], reversal of the

judgment would be required."

People v. Torres,

supra, 157 Cal.

Rptr. at 564.

If this Court decides that counsel

representation is no longer (since

Faretta) the "natural state" of the

accused, states should be allowed to re-

frain from giving the Gideon advisement

at arraignment. Giving both the Gideon ~

and the pro se (not the “dangers") ad-

visements would necessarily engender con-

fusion because of the contradictory

nature of those advisements. Cf. our

Petition for Hearing to the California

Supreme Court in Torres.

Review should be undertaken herein to

clarify that states are not precluded from

experimenting in their combinations of

constitutional advisements at arraignment

27

but are nevertheless required to give and

memorialize for the record the “dangers

and disadvantages" advisement for defen-

dants who appear pro se at adversary

evidentiary hearings.

CONCLUSION

For the foregoing reasons certiorari

should be granted herein.

DATED: December 14, 1979

John A. Vander Lans

Robert R. Recknagel

Gerry L. Ensley

Attorneys for

People of the State of California

400 W. Broadway

Long Beach, California 90802

Telephone: (213) 437-0711

INDEX TO APPENDICES

Opinion and Judgment of the

Appellate Department of the

Superior Court of the State of

California for the County of

Los Angeles

Order Denying Certification

Filed October 22, 1979

John R. Corcoran, County Clerk

By L. Swart, Deputy

APPELLATE DEPARTMENT OF THE

SUPERIOR COURT OF THE STATE OF

CALIFORNIA FOR THE COUNTY OF LOS ANGELES

People of the State

of California, CR A 17231

pe ei Court No.

Plaintiff and }Municipal Court No.

Respondent, L 66293

vs. ‘opinion AND

Robert Stanley Austin} JUDGMENT

)

)

Defendant and

Appellant.

)

Appeal by defendant from judgment of the

Municipal Court. ast

Thomas Zeiger, Judge.

Judgment reversed and cause remanded to

trial court with instructions.

For Appellant - Steven M. Shaw

For Respondent - John A. Vander Lans,

City Prosecutor; By Gerry L. Ensley,

Deputy City Prosecutor

-000-

Appellant, without counsel entered a

guilty plea to a charge of violating

Vehicle Code section 23102, subdivision

(a) (driving under the influence). He

also admitted having suffered a prior

2

conviction under the same code section.

His claim on appeal is that the court

erred in denying his motion to withdraw

his guilty plea and his admission of the

prior. We agree.

The statement on appeal expressly

states that appellant was not advised

of the dangers and disadvantages of

self-representation as required by

Faretta v. California [1975] 422 U.S.

806. The docket does not contradict

this. In People v. Torres [1979] 96

Cal.App.3d 14, the Court of Appeal

addressed a factual situation closely

analogous to the facts of this case.

The Court held that the record there

was inadequate to establish appellant's

claim that he was not advised in accord

with Faretta. The docket entries in

the two cases .are almost identical.

The distinguishing feature in this case

is that the statement on appeal

establishes that the warning was not

given whereas in Zorres the statement

on appeal was silent on this issue.

Torres cites People v. Fabricant [1979]

91 Cal.App.3d 706, 712 for the proposi-

3

tion that, "A waiver of counsel where

the charge is a serious one is knowing

and intelligent only if preceded by an

admonition that self-representation is

perilous." (96 Cal.App.3d at p. 18.)

_ After discussing waiver of counsel in

municipal courts, the Torres opinion

goes on to state: “If, therefore, the

record on appeal of the case at bar

compelled the conclusion that Torres

was not advised of the dangers of self

representation, reversal of the judgment

would be required." (Id. at p. 20). We

do not reach any other issues.

The judgment is reversed and the case

is remanded to the trial court with

* instructions to permit the defendant to

withdraw his plea of guilty to the vio-

lation of Vehicle Code section 23102,

subdivision (a) and to withdraw his

admission of the prior conviction

under the same statute, and to rear-

raign him for plea on the original

complaint.

Judge Saeta

We concur. Presiding Judge Cole

Judge Dowds

APPENDIX “B”

Filed November 8, 1979

John R. Corcoran, County Clerk

By L. Swart, Deputy

APPELLATE DEPARTMENT OF THE

SUPERIOR COURT OF THE STATE OF

CALIFORNIA FOR THE COUNTY OF LOS ANGELES

People of the State )Superior Court No.

of California, CRA 17231 ;

Platnet sy and. \i"epsan oN" "°°

Respondent,

ORDER DENYING

vs. )CERTIFICATION

Robert Stanley Austin

Defendant and

Appellant.

~~ N

THE COURT *

The petition of defendant [ste] for certifi-

cation of cause to the Court of Appeal

in the above-entitled case having been

filed and having been duly considered,

Said petition is hereby denied.

*Before Cole, P.J., Dowds, J. and

Saeta, J.