P. v. Chandler
Filed 10/12/07 P. v. Chandler CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
Plaintiff and Respondent,
Defendant and Appellant.
(Los Angeles County
Super. Ct. No. KA073943)
APPEAL from a judgment of the Superior Court of Los Angeles County.
Michael S. Luros, Judge. Reversed.
Julie Sullwold Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.
Frederick Chandler entered a negotiated plea of guilty to grand theft of personal property (Pen. Code, 487, subd. (a)) and admitted a prior felony conviction within the meaning of the three strikes law (Pen. Code, 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). Pursuant to the plea agreement, he was sentenced to 32 months in prison. He obtained a certificate of probable cause and appeals from the judgment.
Appellant contends that (1) his decision to represent himself was invalid, resulting in a denial of the right to counsel, because the trial court failed to properly ascertain whether he knowingly and intelligently elected self-representation; (2) he established good cause for the withdrawal of his guilty plea; and (3) remand is required so that he may be present at a renewed motion to withdraw his plea.
Respondent contends that this appeal is not operative because appellant failed to comply fully, specifically and in a timely fashion with section 1237.5 and California Rules of Court, rule 30.
We reject the claim that this appeal must be dismissed. We reverse, finding prejudicial error in the failure to advise appellant of the risks and disadvantages of self-representation.
FACTS AND PROCEDURAL BACKGROUND
The record discloses that on February 2, 2006, appellant approached the register of an El Monte Home Depot store with a cart containing merchandise valued at over $600. However, he pushed the cart aside and paid only for a bottle of soda. He then tried to leave the store with the cart containing the merchandise he had not paid for. When he was apprehended, he did not have any receipts for the items in the cart.
Appellant was charged by amended information with grand theft, with allegations of three prior convictions within the meaning of the three strikes law. After unsuccessfully moving for substitution of his appointed counsel, he was granted the right to represent himself. On May 8, 2006, after completion of jury selection, he chose to accept the prosecutors plea offer. On that date, he entered a guilty plea to grand theft and admitted one strike conviction in return for the low term of 16 months, doubled under the three strikes law, and was sentenced accordingly.
On June 13, 2006, approximately five weeks after the hearing at which appellant entered his guilty plea and was sentenced, he submitted two handwritten documents which were filed in the trial court. One was a motion to reconsider or modify the sentence, in which he asked for a 90-day modification on the ground that he was suffering from cancer and had been given 18 months to live. The second was entitled Notice and Motion for Withdrawl [sic] of Plea or Alternate Application for Certificate of Probable Cause (P.C. 1237.5). In this document, which was not signed, appellant asked for withdrawal of his guilty plea on the grounds of several errors that were set forth at length.
A third handwritten document submitted by appellant, entitled Application for certificate of probable cause P.C. 1237.5 Notice of Appeal or Motion to withdraw plea Affavidit [sic] of Defendant, was marked received on that same date, June 13, 2006, and was again marked received on July 11, 2006. Appellant signed this document under penalty of perjury. In the document, he asked for the issuance of a certificate of probable cause in his favor allowing him to challenge the legality and lawfulness of the manner and his sentence, or to withdraw his last plea, stating, Defendant alleges that actions by this court and by the prosecution in the above matter deprived him of his right to a fair trial before an impartial trial [sic] by violating his constitutional rights. He further stated that these errors that will be identified were not harmless . . . . This document did not specify any particular errors.
On July 10, 2006, the trial court issued a certificate of probable cause, in which it stated that appellant submitted on June 13 5 [sic] 2006 a statement under penalty of perjury pursuant to and in compliance with Penal Code section 1237.5(a) and Rule 30(b)(1) of the California Rules of Court . . . . A minute order dated July 19, 2006, indicates that [t]he court is in receipt of a letter filed July 11, 2006 and makes the following order: Motion read, considered and denied. Court granted certificate of probable cause July 11, 2006, permitting appeal. Appellant was not present in court on that date.
I. Certificate of probable cause
Respondent contends that this appeal is not operative because appellant failed to comply with section 1237.5 and rule 30. This contention lacks merit.
Where a defendant seeks to appeal following a guilty or no contest plea, section 1237.5 provides that no appeal will lie unless both of the following provisions have been met: (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.  (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.
Former rule 30(b) provided as follows: (1) Except as provided in (4), to appeal from a superior court judgment after a plea of guilty or nolo contendere or after an admission of probation violation, the defendant must file in that superior court--in addition to the notice of appeal required by (a)--the statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause . . . .
(2) Within 20 days after the defendant files a statement under (1), the superior court must sign and file either a certificate of probable cause or an order denying the certificate.
(3) If the defendant does not file the statement required by (1) or if the superior court denies a certificate of probable cause, the superior court clerk must mark the notice of appeal Inoperative, notify the defendant, and send a copy of the marked notice of appeal to the district appellate project.
(4) The defendant need not comply with (1) if the notice of appeal states that the appeal is based on:  (A) the denial of a motion to suppress evidence under Penal Code section 1538.5, or  (B) grounds that arose after entry of the plea and do not affect the pleas validity.
(5) If the defendants notice of appeal contains a statement under (4), the reviewing court will not consider any issue affecting the validity of the plea unless the defendant also complies with (1).
Respondent asserts that appellant failed to comply with these requirements in two respects: (1) In violation of section 1237.5, appellants statement identifying the grounds for the requested certificate of probable cause, entitled Notice and Motion for Withdrawl [sic] of Plea or Alternate Application for Certificate of Probable Cause, was not executed under oath or penalty of perjury and indeed was not signed at all, while his Application for certificate of probable cause [and] Notice of Appeal or Motion to withdraw plea, which was signed under penalty of perjury, did not identify any grounds for a certificate; and (2) in violation of rule 30(b)(2), appellant did not obtain the certificate of probable cause from the court within 20 days after filing his written statement and did not seek writ review when the trial court failed to rule in a timely fashion.
Both issues appellant raises in his opening brief are certificate issues. The issue regarding his waiver of counsel goes to the legality of the proceeding (see People v.Marlow (2004) 34 Cal.4th 131, 146-147), while the issue regarding withdrawal of the guilty plea goes to the validity of the plea itself (People v. Castelan (1995)32 Cal.App.4th 1185, 1187). He was therefore required to comply with the certificate requirements of section 1237.5 and rule 30(b). The Supreme Court has indicated that these provisionsmust be complied with in a strict manner, which it described as fully, and, specifically, in a timely fashion. (People v.Mendez (1999) 19 Cal.4th 1084, 1098, 1099.) We conclude, as did the trial court, that appellant did so comply.
Appellant submitted two documents, each denominated an application for certificate of probable cause, on June 13, 2006. Although the specific issues to be raised were contained in one document and his signature under penalty of perjury was in the other, and although appellant did not staple his two documents together or otherwise combine them, he fully and in a timely fashion complied with section 1237.5.
Further, contrary to respondents argument that the trial courts late granting of the certificate of probable cause was a fatal violation of rule 30(b)(2), we will not deem the certificate to be invalid simply because the trial court failed to sign and file it within 20 days of the date appellant filed his statement. In People v.Slobodion (1947) 30 Cal.2d 362 and People v.Head (1956) 46 Cal.2d 886, the defendants relied upon representations and actions by prison officials that resulted in the late filing of notices of appeal, when the defendants had done all they could to assure timely filing. In People v. Riser (1956) 47 Cal.2d 566, the Supreme Court, citing Slobodion and Head, observed that the state, which establishes the time limit for appeals, may not frustrate those within its control from meeting the requirement. (Id. at p. 595.) We will not penalize appellant for the tardiness of the trial court when appellant filed his documents in a timely fashion.
Moreover, it appears that the rule 30(b)(2) requirement imposing a time for the trial court to act was merely directory, not mandatory, such that failure to comply with the requirement did not invalidate the governmental action to which it relates, here the granting of the certificate of probable cause. (People v.Morris v. County of Marin (1977) 18 Cal.3d 901, 908.) In general, time requirements are directory unless a contrary intent is clearly expressed. (People v.Williams (1999) 77 Cal.App.4th 436, 448.) In the absence of a consequence for failure to do the specified act, the requirement may be deemed merely directory. (Ibid.) Rule 30(b)(3) declared that an appeal was inoperative if the defendant failed to file the statement required in rule 30(b)(1) or if the superior court denied a certificate. It did not declare an appeal inoperative if the superior court failed to file the certificate within 20 days as provided in rule 30(b)(2). The provision appears to be designed to make proceedings orderly, systematic, and speedy and the failure to comply does not injure the interested party, another indication that the requirement is directory. (People v.Williams, supra, at p. 449.) To the extent the mandatory/directory analysis applies to rules as well as to statutes, we conclude that the time requirement in rule 30(b)(2) was merely directory and the trial courts failure to timely issue the certificate did not render the appeal inoperative.
We conclude that appellants certificate of probable cause was properly obtained and the appeal may go forward.
II. Grant of self-representation
Appellant contends that the trial court did not give him the requisite admonitions and failed to properly ascertain whether he knowingly and intelligently chose self-representation, rendering his decision to represent himself invalid and depriving him of his right to counsel. This contention is well taken.
On April 6, 2006,the trial court denied appellants request for substitution of counsel (People v. Marsden (1970) 2 Cal.3d 118). The matter was continued to April 27 for a status check before trial. However, on April 12, appellant appeared in court without counsel and informed the trial court that he wished to represent himself.
The trial court stated, You understand the following. When I take a Faretta waiver [Faretta v. California (1975) 422 U.S. 806], I want to make sure that you understand this is exactly what you want to do. What I will do is this, I will grant you pro. per. status which means that I have nothing to do with the pro. per. privileges. That is the county jail, special handling, which means I dont know what their situation is, wherever you are being housed.
But I will place $40 on your books, and they will have you in a pro. per. status which means that you will have access to the law library over there. But if something happens, either disciplinary or otherwise, it may impact on your pro. per. privileges, not your pro. per. status. In other words, you remain pro. per., remain representing yourself. Just means that it might interfere with your preparation on that case. Do you understand? Appellant said, Yes, sir.
The trial court continued, Okay. Do you understand I will treat you the same as any lawyer, expect that materials be used properly, and that motions be filed in writing and be specific as to any of the issues that you may have? Do you understand that as well? Appellant replied, Yes, sir.
The trial court stated, Okay. Now the case is currently set as a date in this court. Its a pretrial date, of course. But I mean, your matter is set for last day on May 8. Pro. per. privilege is granted, and $40 is now placed immediately on your books. The trial court informed appellant of his right to have an investigator and mentioned that there were discovery issues to be taken care of. The court then said, [Appointed counsel] and the office of the public defenders off[ice] is [sic] relieved. I do not appoint standby counsel. To me, misanachronistic. [Sic.] One who is representing oneself especially with the type of Faretta that I do take, that if you are at some point in time feel that you are over your head before this matter gets set for trial, of course, not talking about a last day setting, feel that you need to have your lawyer back again, then I will reappoint the deputy public defenders office and not some other person. The court, appellant and the prosecutor then discussed pretrial issues and the matter was continued to April 14 to permit appellants appointed counsel to turn over discovery materials to appellant. The record does not reflect that a written petition requesting self-representation was provided to, or signed by, appellant.
The minute order for April 12, the date on which the trial court granted appellant self-representation, states, in pertinent part, The defendants oral Faretta motion is granted. The court advises the defendant of his rights in re Faretta as more fully reflected in the official notes of the court reporter.
There is no reporters transcript for proceedings on April 14. The minute order for that date indicates that discovery was provided to appellant and that matters unrelated to self-representation were discussed.
The minute order for April 14 further reflects that on that date a nunc pro tunc order was prepared, stating as follows: It appearing to the court that through inadvertence and clerical error the minute order of 04-12-06 in the above entitled action does not properly reflect the courts order. Said minute order is amended nunc pro tunc as of that date as follows: . . .  By adding:  Defendant is present in court, and not represented by counsel[.] Defendant appears in proper [sic.]  Court advises defendant that self-representation is almost always an unwisechoice [sic], and will not work to his advantage; further, that he will not be helped or treated with special leniency by the court or the prosecutor, andthat [sic] he will be held to the same standards of conduct as an attorney. Further, if he wishes to represent himself, he will not be able toclaim [sic] later that he made a mistake, or that he received ineffective assistance of counsel.  Court finds that the defendant voluntarily and intelligently chooses self-representation, and tha[t] the [sic] knowingly, intelligently, understandingly, and explicitly waives his right to counsel, and [the court] determines that defendant is competent to represent himself.
A defendant who wishes to waive the right to counsel and to represent himself must knowingly and intelligently forego the benefits associated with the right to counsel. (Faretta, supra, 422 U.S. at p. 835.) The defendant must be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open. [Citation.] (Ibid.) Indeed, since Faretta, the trial court has been required to make a defendant seeking to represent himself or herself aware of the dangers and disadvantages of self-representation, which include the defendants inability to rely upon the trial court to give personal instruction on courtroom procedure or to provide the assistance that otherwise would have been rendered by counsel. (People v. Barnum (2003) 29 Cal.4th 1210, 1214-1215.)
No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation; the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case. [Citation.] (People v. Koontz (2002) 27 Cal.4th 1041, 1070 (Koontz).) In Koontz, the Supreme Court rejected the claim that the warnings given to the defendant were inadequate. In contrast, the record here fails to demonstrate that adequate admonitions were given such that we might conclude appellant understood the disadvantages of self-representation.
Virtually the only admonitions given to appellant by the trial court at the time he was granted self-representation were that if he were involved in a disciplinary matter, it might affect his pro. per. privileges, but not his pro. per. status; and that the trial court would treat [him] the same as any lawyer, expect that materials be used properly, and that motions be filed in writing and be specific as to any of the issues that [he] may have. The tenor of the trial courts remarks did not in any way convey that appellant was embarking on a disadvantageous course. Appellant was not advised that self-representation is generally an unwise choice. He was not cautioned that he would be opposed by a trained prosecutor and would receive no special help from the court. He was not advised that if he was disruptive he would be removed from the courtroom. The trial court did not inquire into appellants education, his familiarity with legal procedures, or his understanding of the nature of the proceedings or potential defenses and punishments in this three strikes case. (People v.Noriega (1997) 59 Cal.App.4th 311, 319-320 (Noriega); compare Koontz, supra, 27 Cal.4th at pp. 1071-1073; People v.Bloom (1989) 48 Cal.3d 1194, 1225.)
The nunc pro tunc order prepared on April 14 indicates that at the April 12 hearing, at which the trial court granted appellants request to represent himself, the trial court gave appellant advisements that self-representation is almost always an unwise choice and would not work to his advantage, that he would not be helped or treated with leniency by the court or the prosecutor, and that he would not be able to later claim that he received ineffective assistance of counsel. The nunc pro tunc order also indicates that the trial court made findings that appellant chose self-representation voluntarily and intelligently, that he knowingly and intelligently waived his right to counsel, and that he was competent to represent himself.
However, the reporters transcript of proceedings on April 12 does not reflect that these admonitions were given or that these findings were made. A nunc pro tunc order may correct clerical error that erroneously reflects what actually occurred, but it may not correct judicial error. (Bell v. Farmers Ins. Exchange (2006) 135 Cal.App.4th 1138, 1144.) Where a discrepancy exists between the reporters transcript and an entry in a minute order, the record will be harmonized wherever possible, but [i]f it cannot be harmonized, whether one portion of the record should prevail as against contrary statements in another portion of the record will depend on the circumstances of each particular case. [Citation.] (People v. Harrison (2005) 35 Cal.4th 208, 226.) The reporters transcript for April 12 apparently contains a complete version of proceedings on that date. There is no indication that any part of the proceedings of April 12 was not recorded. On this record, we must conclude that the necessary advisements were not given to appellant and the requisite findings were not made by the court. (People v.Duncan (2000) 78 Cal.App.4th 765, 774.)
Respondents reliance on People v.Sullivan (2007) 151 Cal.App.4th 524 (Sullivan) is misplaced. Unlike Sullivan, where the reporters transcript of the hearing on the defendants Faretta motion was not available (Sullivan, at p. 548), we have the transcript of the hearing on appellants request for self-representation. Contrary to respondents assertions, nothing in the transcript of proceedings on April 12 suggests that any further advisements, either written or oral, were provided to appellant. The trial courts references to the type of Faretta waiver that I do take and when I take a Faretta waiver do not indicate that an off-the-record colloquy occurred, nor does the initial minute order of proceedings for that date so indicate.
Thus, the record as a whole fails to demonstrate that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case. Appellant does not assert, and the record does not establish, that appellants waiver of counsel was involuntary. (People v.Wilder (1995) 35 Cal.App.4th 489, 495.) The error is not reversible per se but is reviewed under the Chapman test (Chapmanv.California (1967) 386 U.S. 18, 24). (Wilder, supra, at p. 496.) Under this standard, we cannot find that the error was harmless beyond a reasonable doubt.
After appellant was granted self-representation, the matter proceeded to trial before a different judge. Prior to the start of jury selection, after appellant and the trial court discussed appellants medication scheduleand appellant informed the court that he would not consider the prosecution offer of 32 months in prison, the trial court made various rulings. Appellant then said, I really dont quite understand exactly what you ruled on there as far as the past history, criminal history. I heard you say one thing they can bring it up, but I didnt understand the ending.
The judge advised appellant, Well, sir, thats one of the problems of proceeding in pro per. I cannot advise you as to your legal rights. You are presumed to have full capacity of any lawyer. I do not and cannot just give you any assistance or show you any favoritism or leniency. You say you didnt understand. Thats one of the problems of proceeding as your own lawyer. I cant advise you or give you have [sic] any assistance. This is not a course in criminal procedure. This is a trial. You elected to proceed as your own lawyer, and thats one of the problems.
After the lunch recess, the trial court again asked appellant if there was any possibility of resolving the case by plea. The court then stated, The question you asked[] shows me that you are clearly, clearly over matched in this case, and clearly not competent to represent yourself, because it shows me that you do not have the ability and knowledge to represent yourself. And you are--have no understanding of the principles of criminal law or court procedure. But I cannot help you. And I will tell you, as youre advised, if youre to be convicted in this matter, you could not base an appeal--Im not saying you would be, youre presumed to be innocent, but if you were to be or if the jury were to find any of the allegations true, you could not base an appeal on the fact that you represented yourself badly or should have had an attorney.
The court continued, One last chance, do you wish to be represented by counsel, give up your right to be--proceed in pro. per. and be represented by counsel? Appellant replied, Yes. The court said, Pardon? Appellant repeated, Yes. The court asked, You do? Appellant replied, Im sorry. You said do I wish to go ahead? The court stated, Give up your right to represent yourself and be represented by an attorney? Appellant responded, Well, if I needed an attorney, would that take a long time? The court answered, Well, no lawyer will--would take a case involving multiple strikes. And I dont believe that they would be--announce ready and be able to prepare your case, be ready in 10 days, for example. And the public defender would be appointed to represent you. Appellant stated, I guess well go on.
Under these circumstances, we cannot conclude, beyond a reasonable doubt, that appellant would have chosen to represent himself had he been adequately advised at the time of his election. Reversal is required. (Noriega, supra, 59 Cal.App.4th at p. 322.)
The judgment is reversed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
DOI TODD, J.
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 All further statutory references are to the Penal Code unless otherwise indicated.
 All further references to rules are to the California Rules of Court. Rule 30, the rule in effect at the time appellant filed his notice of appeal, was renumbered rule 8.304, without relevant change, effective January 1, 2007. We will refer to the former rule in our discussion.
 The Supreme Court referred to rule 31(d), an earlier version of rule 30(b).
 Although respondent asserts that appellant was obligated to file a writ of mandate when the 20th day passed without judicial action on his request for a certificate, the result of such action would have been exactly what occurred: the late filing of the certificate of probable cause.
 All further references to dates in April are to April 2006.
 At appellants request, we have taken judicial notice of the contents of the superior court file.
 Appellant told the trial court that he took morphine twice a day for cancer pain.
 It is not clear what question the trial court referred to. It appears that a discussion may have occurred before the court went on the record after the lunch recess.
 These warnings given by the second judge, after appellant had already elected self-representation, were too late to substitute for proper and adequate warnings prior to [the] granting [of] appellants motion for self-representation. (Noriega, supra, 59 Cal.App.4th at p. 321.)
 In view of this disposition, we do not address appellants related contentions regarding withdrawal of his guilty plea, which in any event lack merit. (People v.Miranda (2004) 123 Cal.App.4th 1124, 1134.)