P. v.
Filed 4/22/13 P. v. Davis CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
AYRIANNA ANGENET DAVIS,
Defendant and Appellant.
B239829
(Los Angeles
County
Super. Ct.
No. KA096375)
APPEAL from
a judgment of the Superior Court
of
County. David C.
Brougham, Judge. Reversed.
Kelly C.
Martin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Blythe J. Leszkay and Scott A.
Taryle, Deputy Attorneys General, for Respondent.
________________________________________
Appellant Ayrianna Davis was charged with a single felony
count of attempting to dissuade a witness from prosecuting a crime. (Pen. Code, § 136.1, subd. (b)(2).) On Friday, February 24, 2012, during voir
dire of prospective jurors for her trial, the court denied Davis’s motion to
represent herself in pro. per. Midday on Monday, February 27, the jury was
sworn, and that afternoon it heard the testimony from two prosecution witnesses
and Davis’s testimony in her own
defense. On February 28, the jury was
instructed and commenced deliberations.
On the morning of February 29,
2012, it rendered its guilty verdict.
Davis
appeals from the judgment on a number of grounds, including her contention that
the trial court erred in denying her motion to represent herself at trial. Because we conclude that this error requires
reversal of her conviction, it is unnecessary to discuss her other contentions.
STATEMENT
OF FACTS
In late
November, 2011, Aridai Mendez’s 16-year-old sister Lilibeth and her sister’s
friend Joselyn had reported that Leonard Alcala, a neighbor who lived with his
family in a house behind the Mendez family home in El
Monte, had tried to rob them at gunpoint.
incident to the police, and Alcala had been arrested. Alcala was held to answer on four felony
charges, including one count of attempted second degree robbery, attempting to
take personal property from Lilibeth by force or fear.
On November 29, 2011, Davis
approached Detective Batres of the El Monte Police Department at the El
Monte courthouse, telling him that the incident with
Alcala had not happened as the victims had reported it. Batres told Davis
not to contact the Mendez family.
On December 6, 2011, Batres received a
phone message from Davis saying
that she was a family friend with information about the Alcala case, and that
unless he returned her call she intended to contact his watch commander, or an
attorney, in order to “get the truth on the record.†Batres returned the call the same day,
leaving a message for Davis.
On the
evening of December 6, 2011,
Aridai (who was then 18) was home with her seven-year-old sister when she saw Davis
looking through the home’s mesh security door.
Davis asked Aridai if she
was Joselyn’s friend. When Davis
identified herself as Alcala’s girlfriend, Aridai closed and locked the
security door, and (pretending to be texting) used her telephone to make an
audio recording of her conversation with Davis,
which lasted about 20 minutes.
Davis
told Aridai in the December 6 conversation that
“the attempted robbery was kind of, like a lieâ€; the incident with
Alcala had been “a drug deal gone bad†in which Lilibeth and Joselyn “were
trying to get dope back from [Alcala],†and they had gone to the police with
their robbery accusation when he would not agree. “[W]hat I’m asking for here is for people to
tell the truth and be righteous about it,†and to not lie to “put somebody
behind bars.†Davis
also noted that because the girls were doing drugs and dealing drugs, if Child
Protective Services became involved, Aridai’s parents could go to jail and have
their daughter taken away from them.
“They’re going to lie to the police about some shit that’s really going
on. The parents are going to jail and
the girls are taken away. . . .â€
She asked Aridai to persuade the girls “that they should really
reconsider their statement,†adding that “they don’t have to mention the
drugs.â€
Davis
repeated a number of times during the conversation that the girls should not
mention the drugs to the police, but should just tell them not to press charges. “I’m not threatening at all,†and “I’m just
saying that’s what’s fair.†“My thing is
that, don’t lie. Don’t call the police
and make a lie. That’s my only
thing. If [Alcala’s] going to go down,
then, then they’re going to be reprimands for what they’re doing, too.†She also repeated that “if . . . I
have to let [the police] know what’s really going on, then your family is going
to be in trouble.†“I just want you to
relay to them that if they can’t tell the truth, then it’s gonna get really serious,
and it’s not a threat, it’s a promise.â€
While
repeating these messages to Aridai, Davis
gave Aridai telephone numbers for both herself and Detective Batres, and told
Aridai that her name was Carter. She
also said that she had already spoken to Batres and planned to give her
official statement the next day. She
said that although Batres had told her not to talk to family members, she
believed that she was free to do so in the absence of a restraining order.
Aridai’s
mother and sister Lilibeth arrived home as Davis
was leaving. Her mother asked Davis
who she was and what she was doing there, but Aridai said she would
explain. Aridai then told her mother and
sister what had happened, and played the audio recording for them. The next morning Aridai and her parents went
to the police station and spoke to Batres—whom Aridai had not met before—about
her conversation with Davis, but did not tell him about the audio recording.
Later on
December 7, 2011, Batres returned Davis’s call from the previous day. Batres said he tried to determine whether he
was speaking to someone named “Davis†or “Carter,†and asked why she had
threatened to call his watch commander.
Apparently taking offense at Batres’ tone, Davis hung up.
On December
12, 2011, Batres was at the courthouse with Lilibeth and Aridai for Alcala’s
arraignment or preliminary hearing when Aridai identified Davis as the person
who had tried to persuade her on the evening of December 6 to have Lilibeth
drop the robbery charges against Alcala.
Batres then arrested Davis, advised her of her Miranda rights, and discussed with her the Alcala case and the
events of the evening of December 6.
Davis told Batres that she was not a witness to the robbery between
Alcala and Lilibeth, and did not know whether his gun was a real gun or a BB
gun. An audio recording of Batres’s
conversation with Davis on December 12 was played for the jury, and copies of a
transcript of it were provided to the jurors.
At the
prosecution’s request the court took judicial notice of a number of facts,
including that Alcala had been charged with attempted robbery from Lilibeth
Mendez; that Lilibeth had testified at his preliminary
hearing on December 13, 2011; and that Alcala had been held to answer and
was charged by information. Alcala
eventually pleaded guilty to the charges.
Davis
testified on her own behalf. She
confirmed that she had spoken with Batres at the courthouse on November 29,
attempting to tell him that “there was information that wasn’t included†in the
testimony (apparently at Alcala’s arraignment) about the case, but that he did
not seek to get any information at all from her. She had then called Batres on December 6,
identifying herself as a friend of the Alcala family. She left a message that she had information
that she felt needed to be heard, along with her name and phone number. When Batres called her back, however, he
asked her, abrasively, only about why she had threatened to call his watch
commander, and did not want to hear anything about the case. It was then that she went to speak with
Aridai.
Davis
testified that she went to the Mendez house on December 6 because she felt
“there was some information that was withheldâ€â€”concerning the involvement of
drugs in the supposed robbery—and intended only to speak with some adult, and
“just to have everyone tell the truth and to be honest.†She had told Aridai that her name was Carter
(rather than Davis) because she did not really know who Aridai was, and that was
a nickname she sometimes used. But she
had not tried to hide who she was, by showing her face, telling Aridai that she
was Alcala’s girlfriend, and giving Aridai her telephone number. And she had identified herself also to
Batres, and told him that she had spoken with Aridai. She did not tell Aridai what to say, but only
tried to persuade Aridai—repeatedly—to have the family deal with the fact that
the alleged robbery was really about efforts to get Alcala to give Lilibeth and
Jocelyn drugs, and to warn them that the situation could lead to serious
problems for Lilibeth and her parents.
THE
CASE
An
information filed January 23, 2012, charged Davis with one felony count of
attempting to dissuade Aridai Mendez, a witness to a crime, from causing the
crime to be prosecuted. (Pen. Code, §
136.1, subd. (b)(2).) On January 23,
2012, upon the public defender’s declaration of a conflict of interest, the
alternate public defender was appointed to represent Davis. Davis pleaded not guilty, and the case was
scheduled for pretrial hearing on January 30, 2012, for readiness hearing on
February 17, 2012, and for jury trial on February 22, 2012.
Davis was
first represented by Alternate Public Defender Monique Gregoire Williams at her
January 30, 2012 pretrial hearing. On
February 22, 2012, the date set for trial, an amended information was filed,
changing the identity of the witness who Davis was charged with attempting to
dissuade from Aridai to Lilibeth.
When the
case was called for trial the next day, February 23, 2011, the trial court
accepted Davis’s plea of not guilty to the amended information. The court then denied, as untimely, Davis’s
motion to continue the trial to enable her to hire private counsel in light of
the filing of the amended information.
In denying the motion, the trial court noted that the information’s
amendment changed only the identity of the person Davis was charged with
attempting to dissuade, from the sister of the victim of the robbery to the
actual victim of the robbery, but left unchanged all of the evidence and
discovery.
Before voir
dire of the prospective jurors resumed on the afternoon of Friday, February 24,
2012, Davis’s counsel informed the court that Davis had called her that morning,
asking that she be permitted to represent herself in propria persona. Her counsel advised the court that Davis had
told her she was educated as a nurse; that the case was simple, with perhaps
just three witnesses; that there was nothing counsel could do to satisfy Davis
that she was “doing the job that she would like me to doâ€; and that Gregoire
Williams was prepared to “finish off the voir dire for her†before handing over
the file to begin taking evidence on Monday.
“It’s her life. And it’s her career
that’s at stake. And . . . if
she feels that she can do a better job then she should be able to have that
chance to do it. She’s an intelligent
person so she can probably handle it.
The trial
court denied the motion, solely on the ground that the request was
untimely. “I’m not making any legal
findings on anything at this point other than the timeliness of the request and
we need not get into other issues.â€
After
telling Davis that her request was denied because “in my opinion, there’s no
reasonable argument that can be made for this request being made timely,†Davis
explained her request to the court: “I
just thought I had a right to self-representation according to my Sixth
Amendment right. It says that the right
applies only at trial. And the full, you
know, panel jury hasn’t been selected.
They haven’t been sworn in yet. . . .†The court responded that “these requests need
to be made timely,†because “if we didn’t have a timeliness requirement it
would open the door to all kinds of switches at all kinds of awkward
times.†Because “this is, in my opinion,
not close to a timely request,†the court explained, “that will be denied.â€
Jury selection was completed and the
jury was sworn 45 minutes later.
Alternate jurors were selected and sworn the morning of Monday, February
27, 2012. Jury deliberations began
mid-afternoon, February 28, following the close of evidence; on the morning of
February 29, 2012, the jury returned its verdict of guilty. On March 7, 2012, the court suspended
imposition of sentence, ordering formal probation with various conditions,
along with 150 days in county jail.
Davis filed a timely appeal.
On appeal
Davis contends that under both state and federal law her self-representation
request was timely, thus depriving the trial court of discretion to deny
it. To that contention she adds that
even if the court was justified in concluding that her request was untimely, it
erred by then failing to exercise its discretion to determine whether her
self-representation request nevertheless should be granted; that if the court
had exercised that discretion, her request should have been granted; and that
her conviction cannot be sustained on the basis of a harmless-error
analysis. We find merit in these
contentions and therefore reverse her conviction and remand the case for a new
trial.
DISCUSSION
A defendant
in a state criminal trial has a federal constitutional
right to represent herself without counsel if she voluntarily and intelligently
elects to do so. (Faretta v. California (1975) 422 U.S. 806 (Faretta); People v. Windham
(1977) 19 Cal.3d 121, 124 (Windham).) A trial court
lacks discretion to deny a self-representation request if three
conditions are met: the defendant is mentally
competent and aware of the dangers of self-representation; the
self-representation request is unequivocal; and the request is made “within a
reasonable time before trial.†(
729.) As a matter of federal constitutional
law, when a motion to proceed pro se is timely interposed, a trial court must
permit a defendant to represent himself upon ascertaining that he has
voluntarily and intelligently elected to do so, irrespective of how unwise such
a choice might appear to be.†(
The trial
court in this case identified untimeliness as the sole ground for its denial of
Davis’s self-representation request; it expressly declined to make any inquiry
or determination with respect to any “other issues.†Under the test set forth in
Davis’s self-representation request must be the threshold inquiry. If Davis’s self-representation request was
timely, the trial court therefore would have no discretion to deprive her of
her constitutional right to represent herself at trial without first ruling on
her abilities and intentions—issues that it declined to consider and findings
that it declined to make. (
729; Windham, supra, 19 Cal.3d at pp. 127-128 & fn. 5.)
A
defendant’s right to self-representation is invoked by her timely request. (Windham,
however (as the parties to this appeal agree), neither the United States
Supreme Court nor the California Supreme Court have delineated a bright-line
rule regarding when a motion for self-representation may be denied as
untimely. (See People v. Lynch (2010) 50 Cal.4th 693, 722; Windham, supra, 19 Cal.3d
at p. 128, fn. 5.) The courts have
refused to identify a single point in time at which a Faretta motion becomes untimely rather than timely. (People
v. Clark (1992) 3 Cal.4th 41, 99; People
v. Nicholson (1994) 24 Cal.App.4th 584, 591.)
A request
is timely as a matter of law if it is made a reasonable time before the
commencement of trial. (
In this case it is unnecessary for us to determine whether Davis’s
self-representation request met this timeliness standard, however. Whether her request was or was not timely as
a matter of law, it unquestionably came at a time sufficient to invoke the
trial court’s discretion to grant the request upon consideration of appropriate
factors—factors that the court expressly declined to consider. The effect of the trial court’s ruling
therefore was to hold that Davis’s self-representation request was untimely as
a matter of law. That error deprived
Davis of the exercise of the court’s discretion to which she was entitled.
1.
Davis’s
Self-Representation Request Was Not As A Matter Of Law Untimely.
More than
three decades ago our Supreme Court found in Windham that the commencement of trial marked the time at which a
defendant’s self-representation request could no longer be considered so timely
as to entitle the defendant to self-representation as a constitutional
right. (Windham, supra, 19 Cal.3d
at p. 124.) In that case the trial court
had denied the defendant’s self-representation request, made shortly before the
close of evidence on the last day of his three-day trial for assault,
“principally on the ground that it came at too late a stage of the
proceedings.†(Id. at p. 125.) The Supreme
Court concluded that a timely self-representation request must be granted, but
once the trial had commenced, it was then “within the sound discretion of the
trial court to determine whether such a defendant may dismiss counsel and
proceed pro se.†(Id.
at pp. 124, 129 [failure to make a pretrial request for self-representation
“amounts to a waiver of the unconditional right to proceed by way of
self-representationâ€].)
In the
following years numerous cases have cited the timeliness rule to uphold denials
of self-representation motions that were made after, or only shortly before,
the commencement of trial. But whether
trial had or had not actually begun was rarely (if ever) the decisive central
issue in those cases; the threat of delay in the trial or other disruption of
the administration of justice was an ever-present factor controlling the
timeliness determination. In
for example, the court upheld the trial court’s finding that the
self-representation request was untimely, where the defendant’s counsel had
made several appearances in the six months following the preliminary hearing
“in which [the defendant] could have invoked his right to represent himself,â€
and that the self-representation request was accompanied by the defendant’s
assertion that “he was not ready to go to trial and needed an unspecified
period for preparation.†(
v. Clark, supra, 3 Cal.4th 41, a
multiple-murder trial that was anticipated to involve over 100 witnesses and
six months to try (id. at p. 92), the
court found no error where “‘[a]ny dispassionate reading of this record
reflects that this defendant was playing games with the court on this
issue.’†(Id. at pp. 96-97.) The
self-representation motion had been made after some years of pretrial
proceedings and two previous trial delays at the defendant’s request, in
conjunction with requests for further delays.
(Id. at p. 101.) “In sum,†the court concluded, “consideration
of the Windham factors demonstrates that defendant’s legitimate
interests did not overbalance the disruption to the proceedings, delay, and
potential for abuse which would be engendered by granting the motion.†(Ibid.)
In
also a complex death-penalty case, the court upheld the trial court’s denial of
the defendant’s trial-day request to represent himself, finding “that
defendant’s actions demonstrated an attempt to manipulate the judicial process,
to obstruct his prosecution, and to delay the trial.†It denied the self-representation motion on
those grounds, “and additionally on the ground the request was untimely (having
been asserted on the date scheduled for trial after numerous
continuances).†(Id. at p. 1110.) Although
the defendant had several earlier opportunities to request self-representation,
the court explained, he failed to state any cause for his delay. (Id.
at pp. 1110-1111.) And in
the defendant had moved to represent himself at his complex trial, set to begin
just a few days later. The denial of his
request was upheld on the ground that it was not made within a “‘“reasonable time
prior to the commencement of trial,â€â€™â€ where the record showed that the trial
court had “thoroughly investigated the quality of counsel’s representation, the
reasons for the request, and the expected delay.†(Id.
at p. 742; see also People v. Williams
(1990) 220 Cal.App.3d 1165, 1170 [denial of self-representation motion upheld
on ground that record showed that defendant “was playing the ‘
Respondent
relies on People v. Jackson (2009) 45
Cal.4th 662, in which the court repeated its observation that “[t]his court
never has ‘establish[ed] a hard and fast rule that any motion made before
trial—no matter how soon before—was timely.’â€
(Id. at p. 689, citing
v. Burton, the court had noted—but declined to adopt—the rule stated in
many federal cases, “that a motion for self-representation is normally timely
as a matter of law if made before the jury is impaneled, so that the motion
must be granted unless it is shown that the motion is made for the purpose of
delay.â€
instructive: “The federal rule, though
it calls motions timely until the jury is impaneled, may in practice differ
little from our own rule,†because under the federal rule, even a timely
self-representation motion may be denied in the court’s discretion “if the
court finds the motion is made for the purpose of delay.†(Id.
at p. 854.) The Burton court found that “[t]his differs little as a practical
matter from the standard we set out in Windham
. . . except that we place the burden on the defendant to
explain his delay when he makes the motion as late as defendant did here.†(Ibid.)
The
bright-line measure of when trial begins to determine the timeliness of a
self-representation request, however, it explicitly warned that the rule
requiring a timely request for self-representation should not be invoked
without justification. The timeliness
rule “should not be and, indeed, must not be used as a means of limiting a
defendant’s constitutional right of self-representation.†(19 Cal.3d at p. 128, fn. 5.) The rule’s only intention is “that a
defendant should not be allowed to misuse the Faretta mandate as a means
to unjustifiably delay a scheduled trial or to obstruct the orderly
administration of justice.†(
Whether a self-representation request should be granted therefore is a
matter of trial court discretion when, for example, a defendant has waited
“until the day preceding trial before he moves to represent himself
prepare for trial.†But when the
lateness of the request and the necessity of a continuance can be reasonably
justified, “the request should be granted.â€
(Id. at p. 128 & fn. 5,
italics added.)
In this
case Davis requested no continuance, and nothing in the record indicates that
granting her self-representation request would have entailed any significant
delay. On Wednesday, February 22, the
court called the case for trial, with an estimate of seven days of trial
(afternoons only), and ordered a jury panel for the next day. The next day, Thursday February 23, the trial
court arraigned Davis on an amended information that changed the identity of
the victim of the alleged crime, to which Davis pleaded not guilty. During the morning session the court denied,
as untimely, Davis’ motion to continue the trial in order to hire private
counsel. It also denied motions under Penal
Code section 995 to reduce the charge to a misdemeanor, and to exclude the
audio record of the conversation between Davis and Batres.
Jury
selection began Thursday afternoon at 2:00.
At 4:15 p.m. the jury panel was excused and told to return on the
afternoon of Friday, February 24, at 1:30 p.m.
On Friday
afternoon, February 24, before jury selection resumed, Davis’s counsel informed
the court of Davis’s request to represent herself in pro. per. She did not request any continuance of the
trial, and she explained to the court how the matter could be handled without
any delay.
untimely, without “making legal findings on anything at this point other than
the timeliness of the request . . . .â€
After the
court had denied her self-representation request, Davis suggested to the court
that her request was timely because the jury had not yet been impaneled. The court responded that the absence of a
timeliness requirement “would open the door to all kinds of switches at all
kinds of awkward times.†But the court
did not address Davis’s contention that her request was in fact timely, because
the jury was not yet impaneled. Nor did
the court indicate why granting her request would be awkward under the
circumstances of her case, or inquire whether any delay would be necessary.
Less than
an hour later 12 jurors were sworn and were ordered to return for trial Monday
afternoon. Two alternate jurors were
selected and sworn on the morning of Monday, February 27. Opening statements began on Monday afternoon.
Nothing in
the record suggests that granting Davis’s self-representation request would
have delayed the trial or resulted in any obstruction of the administration of
justice; the record actually indicates that no delay would have resulted. When the court denied Davis’s
self-representation request that Friday afternoon, it told the prospective
jurors that “[w]e will finish picking a jury and then get you folks on the way
and get an early jump on traffic.â€
Without any delay in the proceedings, opening statements were thus set
to begin the following Monday afternoon—the same time that Davis had told the
court she would be ready to defend herself.
Moreover,
in denying the request the court disclaimed reliance on any factor other than
the request’s untimeliness. It denied
Davis’s self-representation request on the sole ground that jury selection had
begun. It declined even to consider the
concerns—delay or obstruction of the orderly administration of justice—that
justify denial of a self-representation request. (19 Cal.4th at p. 128, fn. 5.) In other words, the trial court used
timeliness as “a means of limiting [Davis’s] constitutional right of
self-representationâ€â€”exactly what Windham
warned that it cannot do. (
In
defendant’s self-representation request was made on the date set for
trial. The court nevertheless held that
“where self-representation is requested for a legitimate reason, where there is
no request for a continuance and where there is no reason to believe there
would be any delay or disruption, the trial court’s denial of a
discretion.†(Id. at p. 593; see People
v. Herrera (1980) 104 Cal.App.3d 167, 174 [“To hold that a motion for
self-representation made by a defendant at his earliest opportunity is untimely
when that ‘earliest opportunity’ appears to be shortly before trial, would
effectively thwart defendant’s constitutional right to proceed in propria
persona.â€].)
On this
record it therefore is clear that the denial of Davis’s self-representation
request cannot be validated solely by the trial court’s conclusion that the
request was untimely. While no case
holds that a request made during jury selection is necessarily
support the proposition that the request was
necessarily untimely, without
regard to any other consideration. Thus
even accepting the trial court’s conclusion that the self-representation
request came too late to require that it be granted, in exercising its
discretion to determine whether to grant the request the trial court was
required to consider factors other than just the timing of the request.
2.
The
Trial Court Failed To Exercise Its Discretion To Determine Davis’s
Self-Representation Request Upon The Factors Identified By Windham.
Once a trial has
commenced, it is “within the sound discretion of the trial court to determine
whether such a defendant may dismiss counsel and proceed pro se.†(Windham,
supra, 19 Cal.3d at pp. 124,
129.) But untimeliness is just one
factor to be considered; untimeliness alone cannot be used to deny
self-representation, without regard to other factors. When the lateness of the request and any
resulting need for delay can be reasonably justified, “the request should be
granted.†(Id. at p. 128, fn. 5, italics added.)
We do not
hold that the trial court would have lacked discretion to deny Davis’s
self-representation request, had its discretion been exercised. But it is not clear that denial of the motion
would have been a foregone conclusion if the court had exercised its discretion
after considering the appropriate factors.
The record shows no hint that Davis’s self-representation request was
motivated by a desire or expectation that it would delay her trial or unduly
burden the administration of justice, and the trial court declined to consider
whether it would. When she made her
self-representation request, only a matter of weeks, and a few appearances, had
passed since the appointment of the alternate public defender as her counsel.
trial would be short, that the factual and legal issues were uncomplicated,
that Davis was educated and capable of defending herself, and that no delay
would be necessary. And Davis’s own
explanation to the court demonstrated some genuine understanding of the law on
her part.
However, we
need not determine whether the court would have been justified in denying
Davis’s self-representation request after considering these factors, because it
did not consider them. Although there is
no requirement that the trial court explicitly cite the Windham factors or state its reasons for denying an untimely
self-representation request (Windham,
supra, 19 Cal.3d at p. 129, fn. 6;
Cal.App.4th 1345, 1354), the record must reflect some substantial support for
an inference that the trial court “had those factors in mind when it
ruled.†(People v. Bradford, supra,
187 Cal.App.4th at p. 1354; People v.
Scott (2001) 91 Cal.App.4th 1197, 1206.)
Here, the trial court’s express disclaimer foreclosed any such
inference. As it stated for the record,
“I’m not making any legal findings on anything at this point other than the
timeliness of the request . . . .â€
Even if the
request could be considered untimely because jury selection had commenced, the
court was nevertheless required to consider the factors identified in
to deny Davis’s request. (19 Cal.3d at
pp. 128-129 [“Having established a record based on such relevant
considerations, the court should then exercise its discretion and rule on the
defendant’s request.â€].) The trial court
therefore erred by declining to consider the factors upon which its discretion
to determine whether Davis’s self-representation request—even if untimely—must
be based.
3.
The
Court’s Failure To Exercise Its Discretion Cannot Be Dismissed As Harmless.
In Windham,
“unnecessary to determine by what standard of reversible error the erroneous
denial of a Faretta motion should be
judged.†(19 Cal.3d at p. 131, fn.
7.) Subsequent cases have indicated that
denial of a timely self-representation request is reversible per se. (People
v. Joseph (1983) 34 Cal.3d 936, 948; People
v. Tyner, supra, 76 Cal.App.3d
352, 356 [“Adoption of any other standard would tend to eviscerate the
reviewed under the harmless error test of People
v. Watson (1956) 46 Cal.2d 818, 836—whether it is “reasonably probableâ€
that a result more favorable to the appellant would have been reached in the
absence of the error. (
1040, 1050.) This is because “the denial
of a pretrial motion is a matter of constitutional magnitude, whereas the
denial of a midtrial motion is not.†(
see Cal. Const. art. VI, § 13.)
In People v.
Nicholson, as in this case, the self-representation request had been made
after the case had been called for trial, but before the jury was sworn—a time
that might or might not be considered to be “before the commencement of trialâ€
within the meaning of Windham. (People
v. Nicholson, supra, 24
Cal.App.4th at p. 591.)
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request was made soon after the appointment of defense counsel; it was not part
of a pattern of delay or disruption of the proceedings; no delay of the trial
was requested, and nothing in the record indicated a delay would be
necessary. (Id. at p. 592.) On this
record it is not at all clear that the trial court would have been justified in
exercising its discretion to deny Davis’s self-representation request, even if
it had considered the relevant factors on their merits. (People
v. Tyner, supra, 76 Cal.App.3d
352, 354-355 [self-representation motion made on first day of trial, but before
jury was impaneled, should have been granted as timely].)
However,
even if we were to conclude that Davis’s self-representation request was
untimely as a matter of law (which we decline to do, as discussed above), still
we cannot conclude that no prejudice resulted from the trial court’s failure to
examine the factors that should control its exercise of discretion, and to
exercise its discretion based on those factors.
Although it is rare that an untrained defendant might have been able to
prevail before the jury, while her experienced and admittedly competent
attorney could not, we so conclude in this case.
Davis’s
defense had little to do with proof of disputed facts. The events supporting the charge against
Davis were virtually undisputed; it was primarily Davis’s intent that was in
dispute. Davis was charged with
attempting to dissuade a witness to a crime from causing the crime to be
prosecuted. (Pen. Code, § 136.1, subd.
(b)(2).) The entire conversation in
which she was found to have done so was presented to the jury in both a
20-minute audio recording and a written transcript of that recording. The case had no complex legal or evidentiary
issues. Davis’s defense rested instead
almost wholly on persuading the jury of her lack of criminal intent in speaking
with Aridai, saying what she undeniably said in the audio recording of that
conversation.
Davis’s
statements were unquestionably sufficient to justify the charge of attempting
to dissuade a witness, and to support the verdict against her; her appeal does
not contend otherwise. But she also
tried to offer explanations for much of her conversation with Aridai, which— if
her good intentions were credited and she were afforded the benefit of many
doubts—might have persuaded a sympathetic jury to see a picture somewhat
different from that painted by the prosecution.
She
apparently wanted to persuade the jury that she had gone to talk to Aridai (or
any other adult in the family) out of concern not only for Alcala, but also to
warn the Mendez family that the supposed robbery with which Alcala was
charged—in which Lilibeth and Joselyn were the supposed victims—was not a
robbery at all but arose from the girls’ efforts to get drugs from Alcala. She sought to warn Aridai that she felt
compelled to advise Detective Batres of those facts, and to warn her of the
impact on her family once her younger sister’s involvement with drugs became
known. It is true—as the prosecution
argued effectively to the jury—that crediting Davis’s story would not wholly
negate the elements of the offense with which she was charged. However it might have negated the specific
intent that the jury was required to find—and did find—she had when she spoke
to Aridai.
If the
trial court had properly exercised its discretion, it could have determined
whether Davis should be permitted to present her theory of the facts to the
jury personally, not just through her testimony but also personally through her
argument to the jury. We cannot know
with certainty whether she would have been entitled to that opportunity if the
court had properly exercised its discretion, nor whether she might have
persuaded the jury that her intent was not criminal had she had that
opportunity. However, on this record we
cannot conclude that she would not.
CONCLUSION
A new trial
is required. We therefore do not reach
Davis’s other claims of error.
DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED
.
CHANEY,
J.
We concur:
ROTHSCHILD,
Acting P. J.
JOHNSON,
J.
Because Aridai and Lilibeth Mendez share the same last name, we refer to them
by their first names.
During the recorded conversation Davis also recounted that Jocelyn had already
agreed not to press charges, that the gun Alcala had been charged with using
for the robbery had been a BB gun, and some of the reasons she believed
Alcala’s account of the facts was credible.
