P. v. Chau

Filed 8/7/09 P. v. Chau CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Larrie R. Brainard, Judge. Affirmed.

Minh Choung Chau, a 44-year-old man with no criminal history, shot Anthony Le seven times following an argument and fight over a dog. Le survived and identified Chau as the shooter. The information charged Chau with attempted murder (count 1), assault with a semi-automatic firearm (count 2), and burglary (count 3). As to count 1, it alleged that Chau personally used and discharged a firearm causing great bodily injury. As to all counts, the information alleged that Chau personally used a firearm in the commission of the offense and personally inflicted great bodily injury.

Chau rejected the district attorney's offer of a five year stipulated sentence and proceeded to trial. The jury convicted him on all counts and found true the special allegations. The trial court imposed the mandatory sentence of life with the possibility of parole plus an indeterminate term of 25 years to life. (Pen. Code,  187 subd. (a), 189, 664, subd. (a), 12022.53, subd. (d); undesignated statutory references are to this code.)

This appeal focuses on issues triggered by Chau's posttrial discharge of retained counsel. Chau argues that the trial court violated his Sixth Amendment rights when it failed to appoint counsel after Samantha Mann, his retained counsel, informed the court at sentencing that "he does not want me to be here anymore." Following oral argument, we requested and received supplemental briefing on additional questions, including whether, after granting Chau's request to represent himself, the court had an obligation to appoint counsel to investigate Chau's claim that he did not receive a fair trial due to ineffective assistance of retained counsel. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Because the issues on appeal focus solely on questions relating to Chau's representation during the trial proceedings, we need not detail the facts of the underlying crimes.

Mann confirmed that Chau had been advised of his constitutional rights, including the right to be represented by appointed counsel if he was unable to pay for an attorney. On at least one occasion before trial, Chau rejected a plea agreement under which he would have received a five-year sentence. On the first day of trial the trial court offered Chau one last chance to accept the plea agreement before jury selection began. The court explained that the life sentence for attempted murder was mandatory. It continued: "They have offered you, from everything that I see . . . a very lenient disposition of your case. I believe Ms. Mann has told you this. You would be receiving five years and actually serving three years or probably less . . . . That is what you are risking by going to trial if you are convicted. [] It would seem that they have a strong case that you will be convicted. That you would go to jail for the rest of your life. I just want you to really understand that. [] . . . . [] It would appear to most of us that you are being foolish not to accept the disposition." Chau opted to go to trial.

Following a three-day trial and the return of guilty verdicts, the court set a sentencing hearing on November 29, 2007. Mann reported to the court on that date that she had not spoken with Chau since the verdict came down, but had been contacted "by at least one attorney [whom] Mr. Chau's family had contacted to review the case and see if there was anything that could be done." Mann stated that the attorney had declined to take Chau's case. She also stated that Chau had just informed her that he was not ready to go forward with sentencing because "his family was still in conversation, at least, with another attorney about reviewing the case." The court responded that it was aware that Chau or his family had contacted other counsel because an attorney appearing on another case informed the court that he had declined to take the case. The court agreed to continue sentencing for two weeks, but told Chau: "I want you to know that I will plan to go forward at the next hearing. . . . And if you are going to bring new counsel in or going to be filing motions or any such thing, they will have to do so by that date." Chau said that he understood.

Chau appeared with Mann at the continued sentencing hearing on December 13, 2007. Mann immediately stated that Chau informed her when they walked into court that "he does not want me to be here anymore, and he want[s] to address the court himself." The following exchange took place:

"THE COURT: Well, this matter is here for probation hearing and sentencing. Ms. Mann has represented Mr. Chau well certainly since I have had anything to do with the case. It was put over so that he could have consultation with other counsel. We do know that he has had that consultation, at least his family has, and we are here for sentencing. [] Mr. Chau, you have the right to be represented by counsel. If you wish to represent yourself today, you may. That's your choice.

"THE DEFENDANT: Yes, sir. I will be represented by myself." (Italics added.)

The court questioned Chau about his schooling and ability to read and write English. The court also reminded Chau that it would not continue the hearing because he was representing himself. The discussion continued:

"THE COURT: I'm also supposed to advise you that you are in fact probably not being very wise or smart to represent yourself, because you are not really familiar with all of the processes and procedures. [] Do you understand that?

"THE DEFENDANT: Yes, I do.

"THE COURT: So you still want to represent yourself?

"THE DEFENDANT: Yes, your Honor.

"THE COURT: Under the current state of the law, I believe I have to let him do so; so Ms. Mann, I'm just going to ask you to hang close, if you will, but I'm going to relieve you and allow Mr. Chau to at least represent himself today."

After acknowledging it was familiar with the probation report and records of the case, and the fact that the sentence was mandatory, the court asked Chau if there was anything he wanted to say about sentencing. Chau stated that he was sorry for what happened. When the court asked if there was anything else Chau wanted to say, the following exchange took place:

"THE DEFENDANT: I guess I can say like, I was not represented during the trial, and I think my constitutional right was violated, because I don't have a fair trial.

"THE COURT: How were they violated?

"THE DEFENDANT: Because there are certain things I asked Ms. Mann to ask the victim, and she wouldn't do it and said, no. I mean, I request some other stuff, and she wouldn't do it all. She misled me all of the time in the trial.

"THE COURT: Mr. Chau, I observed the trial, and I observed Ms. Mann. She is a competent, talented lawyer. She advised you to enter a plea in this case, a disposition that was very favorable. I think three different judges, including myself, told you the same thing. You refused to -- you refused to listen. You went to trial with no defense, other than you are saying you didn't do it, but all the facts said that you did, and you were convicted, as I think almost anyone would have predicted. [] There was nothing wrong with your representation. Your rights were not taken away in any way.

"THE DEFENDANT: Your Honor, there is a -- there is a description of a five, ten, wavy hair and scar on his face, and I don't fit that description.

"THE COURT: Mr. Chau, Mr. [Le] was shot and immediately said you shot him.

"THE DEFENDANT: Right.

"THE COURT: That's not misidentification. He knows you. You know him.

"THE DEFENDANT: Your Honor, he said that I left in my white Mustang, and he also told the detective that he didn't see no car coming and going.

"THE COURT: All right. You are arguing the facts. I'm afraid you are stuck with the facts. You have been convicted." (Italics added.)

At no time did Chau expressly request a public defender or other court-appointed counsel to represent him.

DISCUSSION

For purposes of this analysis we note that four things occurred at the sentencing hearing: (1) Mann informed the court that Chau wanted to discharge her, and the court did so; (2) Chau asked to represent himself, the court questioned him pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta), and the court granted the request; (3) Chau said he was sorry, complained about Mann's representation, and the court rejected his claims of attorney incompetence; and (4) the court sentenced Chau.

Chau does not claim that the trial court erred in granting his request to discharge Mann. A non-indigent criminal defendant has the right to discharge retained counsel, with or without cause, as long as there is no significant prejudice to the defendant and no undue disruption of court proceedings. (People v. Ortiz (1990) 51 Cal.3d 975, 983, 987-988 (Ortiz).) Rather, Chau argues that he is entitled to reversal because his request for self-representation was equivocal under Faretta. Chau also raises finer points of error in his opening and supplemental briefs. We do not view this as a case which violated Faretta principles. Thus, after rejecting Chau's Faretta claim, we consider whether, in light of this record, the court erred in: (1) failing to inform him at the time it relieved retained counsel of his "absolute right under the Sixth Amendment to continue to be represented in the criminal proceedings by counsel, be it by new retained counsel of his choice or appointed counsel" and (2) failing to appoint counsel to investigate his claims of ineffective assistance of counsel for purposes of a new trial motion after the court allowed self-representation.

I. Advisement of Right To Counsel Upon Discharge of Retained Counsel

When Mann informed the court that Chau did not want her "to be [there] anymore," the court presented Chau with two options: "You have the right to be represented by counsel. If you wish to represent yourself today, you may." The court did not tell Chau that he had the right to be represented by appointed counsel.

Chau and the Attorney General initially framed the issue as a Faretta question, but it is clear there was no Faretta error. Contrary to Chau's argument, there was no equivocation in his response of "Yes, sir. I will be represented by myself," when the court presented him with the two options cited above. Nor is there anything in the record to support Chau's suggestion that he communicated nothing more than "a clear and unequivocal desire not to be represented further by his retained trial counsel" or that he "appeared to have every desire in the world to be represented by counsel, but was unable to hire a new retained counsel despite significant efforts by his family." The court questioned Chau in accordance with Faretta, cautioned him about the foolishness of his decision, and properly allowed him "to at least represent himself today."

Chau argues, however, that in the circumstances of this case, the trial court erred in failing to fully admonish him when he indicated he did not want Mann to continue to represent him. Chau maintains that the "bare bones" advisement that he had the "right to be represented by counsel" did not discharge the court's statutory duty under sections 858, 859 and 987 because it did not make him aware that he could request appointed counsel for the purpose of posttrial proceedings after being represented by retained counsel at trial.

Accordingly, the dispositive question is whether the court had a duty at the time it relieved Mann as retained counsel to advise Chau sua sponte that he was entitled to representation by counsel, either retained or appointed. We conclude the trial court had no sua sponte duty to advise Chau of the right to appointed counsel at the time it relieved Mann, and the court did not abuse its discretion in allowing Chau to proceed with sentencing without legal representation.

The parties cite no cases that address the precise issue raised here. However, the Supreme Court has held that without more, a simple request for self-representation does not trigger a duty to conduct an inquiry under People v. Marsden (1970) 2 Cal.3d 118, 124 (Marsden), or suggest substitution of counsel as an alternative. (People v. Crandell (1988) 46 Cal.3d 833, 854-855 (Crandell); see People v. Burton (1989) 48 Cal.3d 843, 855 (Burton) [there was no basis in the record for the view that the court should have realized defendant was making a motion, not to represent himself, but to substitute counsel].)

Moreover, "in the normal course of events a defendant is not entitled to be advised of his legal rights at every stage of criminal proceedings. The Penal Code requires that the trial court so advise a person only upon his first appearance before the committing magistrate (Pen. Code,  858, 859) and when he is arraigned before the trial court (Pen. Code,  987)." (In re Turrieta (1960) 54 Cal.2d 816, 820; see, e.g., In re Fresquez (1967) 67 Cal.2d 626, 633-634 [defendant has no right to be re-admonished at sentencing]; see also  1018 [requires advisement of the right to counsel if a defendant appears without counsel at a change of plea hearing].) Chau was advised of his rights before the preliminary hearing and again when he was arraigned on the information. About one year before trial, Chau signed a form acknowledging that he had read and understood his rights, including "the right to have an attorney defend [him] at all stages of the proceedings for a criminal case, and if [his] case involves a . . . felony and I cannot afford an attorney the court will appoint an attorney to represent me." (Italics added.) While we agree that Chau, who had no criminal history, might have failed to recall the earlier admonition, advisement at arraignment was sufficient. (In re Fresquez, supra, at pp. 633-634.)

Chau maintains that Crandell and Burton are inapposite. He cites Ortiz, supra, 51 Cal.3d 975, People v. Munoz (2006) 138 Cal.App.4th 860 (Munoz), and People v. Lara (2001) 86 Cal.App.4th 139 (Lara), and argues that his request to dismiss retained counsel "triggered a mandatory duty on the part of the trial court to appoint counsel for [him]." (Italics added.) We do not read those cases as broadly as Chau.

Ortiz,Munoz and Lara reversed the trial court judgments on the grounds that criminal defendants are not required to show that retained counsel were incompetent to obtain their discharge. (Ortiz, supra, 51 Cal.3d at p. 987; Munoz, supra, 138 Cal.App.4th at p. 870; Lara, supra, 86 Cal.App.4th at p. 152.) For the guidance of the trial court on remand, the Ortiz court described "the procedure for appointing counsel after an indigent defendant has discharged his retained counsel" and cited statutory authority for assigning and paying counsel other than the public defender. (Ortiz, supra, 51 Cal.3d at p. 989.) Munoz addressed the timeliness of a request for appointment of counsel after the defendant discharges retained counsel. (Munoz, supra, 138 Cal.App.4th at p. 870.) Lara concluded that the evidence implicated defendant's right to discharge his retained counsel, "and either hire a new attorney or request the appointment of counsel." (Lara, supra, 86 Cal.App.4th at p. 158.) Although Ortiz,Munoz and Lara do not hold that the trial court is required to inform a defendant who discharges retained counsel that he is entitled to appointment of new counsel, they do assume that appointment of counsel is the next step to be taken on remand.

We believe that reminding the defendant of his or her right to appointed counsel is the preferred, but not required, practice at the point a court grants the defendant's request to discharge retained counsel. That said, we cannot conclude that the trial court abused its discretion in failing to admonish Chau of his right to appointed counsel -- or that he would have been prejudiced by the court's failure to exercise its discretion to appoint counsel in the circumstances of this case. At the time of the scheduled sentencing on November 29, 2007, the court had presided overChau's trial, was aware of the overwhelming evidence against him, and knew that the sentence was mandatory. It was in this context that the court agreed to a two-week continuance to allow Chau to complete "hiring and negotiations" with new retained counsel. And it was in this context that the court warned Chau that it planned to proceed with sentencing at the December 13, 2007 hearing. When Chau announced at the December 13 hearing that he did not want Mann to represent him at sentencing, having given Chau fair warning, the court had authority to proceed. In this circumstance, the court had discretion to move forward with Mann acting as counsel or to grant Chau's request to discharge Mann and represent himself. The court granted Chau's request and sentencing properly proceeded.

II. Appointment of Counsel After Grant of Self-Representation

Chau's remarks after the court granted his request for self-representation were the first clear indication that he had been unhappy with Mann's performance. He complained to the court but did not expressly request appointment of counsel to explore issues of ineffective assistance. The question posed by this record is whether the court abused its discretion in failing to appoint counsel to determine whether Chau's claims justified a motion for new trial.

This question of appointment of counsel to investigate trial attorney incompetence ordinarily arises where defendant was represented at trial by appointed counsel. "When, after trial, a defendant asks the trial court to appoint new counsel to prepare and present a motion for new trial on the ground of ineffective assistance of counsel, the court must conduct a hearing to explore the reasons underlying the request. [Citations.] If the claim of inadequacy relates to courtroom events that the trial court observed, the court will generally be able to resolve the new trial motion without appointing new counsel for the defendant. [Citation.] If, on the other hand, the defendant's claim of inadequacy relates to matters that occurred outside the courtroom, and the defendant makes a 'colorable claim' of inadequacy of counsel, then the trial court may, in its discretion, appoint new counsel to assist the defendant in moving for a new trial. [Citations.]" (People v. Diaz (1992) 3 Cal.4th 495, 573-574.) We conclude that the same rules should apply in the circumstances of this case where defendant is represented at trial by retained counsel but elects to represent himself at sentencing. We also conclude there was no abuse of discretion.

Here, Chau's claim of ineffective assistance related to events the court observed in the courtroom. The court rejected each of Chau's examples of Mann's incompetence and stated its reasons on the record. Each of the examples cited by Chau related to evidence of the perpetrator's identity. However, the record makes clear that Le and Chau were acquaintances who had known each other for some time. The court also reminded Chau that Mann, along with several judges, had advised him to accept the plea, and he refused to listen. The court concluded that there was "nothing wrong with [Chau's] representation" and his rights "were not taken away in any way." Thus, even if the court should have inferred and acknowledged on the record that Chau was requesting appointment of counsel for purposes of investigating his claims of ineffective assistance of counsel, it did not abuse its discretion in denying the request.

The Supreme Court recently addressed the separate question of the circumstances under which the trial court may exercise its discretion during trial to deny a defendant's request to revoke waiver of counsel and have counsel appointed. (People v. Lawrence (2009) 46 Cal.4th 186, 188.) The standard of review in such cases is whether the trial court's ruling was an abuse of discretion under the totality of the circumstances. (Id. at p. 196.) Again, there was no abuse of discretion under the totality of the circumstances of this case.

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

I CONCUR:

HALLER, J.

BENKE, J.

I concur in affirming the judgment of the trial court. Respectfully, however, because the majority creates confusing new law with which I disagree, I concur with discomfort and write separately to express my concerns.

A. Advisement of Right to Counsel on Discharge of Retained Counsel

Appellant's principal argument is that when a defendant requests the right to discharge his retained counsel and represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525] (Faretta), the trial court mustinform the defendant that he or she has a right to appointed counsel. As my colleagues note, there is no authority supporting such a proposition. The cases relied upon by appellant, People v. Ortiz (1990) 51 Cal.3d 975, 983, 987-988 (Ortiz), People v. Munoz (2006) 138 Cal.App.4th 860 (Munoz) and People v. Lara (2001) 86 Cal.App.4th 139 (Lara), do not control the outcome of the issue. As noted in People v. Wright (1977) 72 Cal.App.3d 328, 340, the rationale of Munoz applies where the request for self-representation has been denied. Here, it was granted.

However, after rejecting the new rule of law requested by appellant, my colleagues conclude that because Ortiz, Munoz and Laraassume counsel will be appointed upon remand, "reminding the defendant of his or her right to appointed counsel is the preferred, but not required, practice at the point a court grants the defendant's request to discharge retained counsel." (Majority opn., p. 10.) I have two difficulties with this unsupported statement of law. First, it is not necessary to the disposition of this appeal. The majority has correctly determined the trial court did not abuse its discretion in failing to give appellant the opportunity to be represented by appointed counsel. Thus we need not and should not reach the question of what might be preferred in future cases.

Secondly and more importantly, the views expressed by the majority on this issue are erroneous and misleading. They are misleading because, as the holding in People v. Lawrence (2009) 46 Cal.4th 186, 196, makes clear, a defendant who has elected to act in propria persona has no automatic, presumed or even preferential right to appointed counsel. When, as here, a defendant has elected to exercise his or her right to self-representation, a court is required to thereafter appoint counsel only if, under the totality of circumstances, the reasons for appointing new counsel outweigh the disruption and delay which would be caused if counsel were appointed. (Ibid.) Plainly here, where appellant did not ask for the assistance of counsel for a new trial motion, and where the trial court had already continued sentencing once so that appellant could obtain counsel, there was no right to appointed counsel and hence no need to admonish appellant with respect to appointed counsel. While we need not reach the question of procedures to be followed in future cases, it appears the advice offered to trial courts by my colleagues is inconsistent with advice offered by our Supreme Court.

Rather than discussing a preference which does not exist, I believe trial courts would be better served if we reminded them and litigants that our Supreme Court has cautioned that a defendant who properly waives the right to counsel forgoing the assistance of counsel "assumes the risk of his or her own ignorance, and cannot compel the trial court to make up for counsel's absence. Such a defendant therefore cannot reasonably expect the trial court to provide an advisement of any right." (People v. Barnum (2003) 29 Cal.4th 1210, 1226; see also People v. Redmond (1969) 71 Cal.2d 745, 758-759.)

B. Appointment of Counsel after Grant of Self-Representation

Appellant also urges that the trial court must advise a self-represented defendant of the right to appointed counsel if at sentencing the defendant raises an issue of incompetence of retained trial counsel. My colleagues agree with appellant.[1] In so doing they offer a second new rule of law: where at sentencing a self-represented defendant expresses a concern about the manner in which retained counsel conducted his trial, the court must conduct a hearing to explore whether new counsel should be appointed to assist in preparing a motion for new trial based on incompetency of counsel. Apparently this new sua sponte requirement exists even where, as here, the defendant is aware of his right to appointed counsel and has not asked for the appointment of new counsel to assist him. Like the rule of preference established by the majority, this rule likewise has no authority to support it. The majority, without analysis, fashions the rule by engrafting on this case the reasoning of People v. Diaz (1992) 3 Cal.4th 495, 573-574.

With all due respect, the Diaz case is not applicable here. Diaz involved a defendant who had been represented at trial and, following trial, asked the court to appoint different counsel to help him prepare a motion for new trial based upon incompetence of trial counsel. Here, appellant was self-represented and did not ask for appointment of counsel to assist him.

Moreover, application of Diaz, where the defendant is self-represented and has not asked for appointment of counsel to assist him, does violence to Faretta. It forces the defendant into a hearing he has not asked for, a hearing where apparently the trial court sua sponte examines the representation provided to determine if counsel should be appointed. Indirectly, this process also resurrects without a request the right to counsel, a right previously waived. Contrary to the existing case law already noted in section A, supra, the new rule improperly requires a trial court to take on the responsibility of guiding a self-represented defendant through procedural and substantive areas. (See People v Barnum, supra, 29 Cal.4th at pp. 1221, 1225.)

The trial court correctly rejected appellant's suggestion that his retained counsel acted incompetently at trial. I would affirm this case on that basis alone without confusing the trial court here or establishing rules of law that are contrary to established legal principles.

BENKE, Acting P. J.

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[1] The majority asserts appellant's first clear indication he had been unhappy with his retained trial counsel occurred at sentencing after he was granted the right to represent himself. The record reflects this is not the case. Over the course of a year, appellant spoke with no less than three different trial attorneys about taking over the case from his retained counsel. Indeed, the sentencing hearing was continued specifically in order to allow him time to talk with another attorney.