P. v. Rhodes

Filed 7/3/06 P. v. Rhodes CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Michael D. Wellington and John M. Thompson, Judges. Affirmed.

A jury convicted Anthony Rhodes of burglary (Pen. Code,^[1] § 459) and forgery (§ 470, subd. (d)). Rhodes also admitted he had previously served a prior prison term (§ 667.5, subd. (b)). The trial court sentenced Rhodes to prison for a total term of two years.

Rhodes appeals, contending the trial court's ruling allowing him to hire cocounsel, but refusing to appoint cocounsel, constituted discrimination based on wealth and denied him his right to the equal protection of the law. We affirm.

FACTUAL SUMMARY

Rhodes does not challenge the sufficiency of the evidence to support his convictions stemming from his attempt to cash a check at a Bank of America in San Diego on August 18, 2004. At around 9:45 a.m. on that date, Rhodes was arrested after a teller gave his supervisor a personal check handed to him by Rhodes that was over the amount limit for a noncustomer and which appeared to be "altered" on the "pay to the order" line. Because of the alteration to the check, the manager had called its owner before calling the police. The owner of the check did not know Rhodes and had mailed out the $7,750 check made payable to "Woodchuck Flooring" on August 13, 2004.

After waiving his rights under Miranda v. Arizona (1966) 384 U.S. 436, Rhodes claimed he was given the check on August 13, 2004, by a woman named Elaine he had met on a bus bench who liked the music he was listening to and wanted him to "cut" a CD for her. When he told the woman it would cost $10,000 to arrange to make the CD, she gave him the $7,000 plus check to get started and would contact him later.

In the defense case, Rhodes, who represented himself, testified more extensively about meeting the woman who had given him the check to "put [her words] to music." He claimed she wrote his name on her stepmother's check after erasing it several times to get it right. He went to the bank to inquire about the sufficiency of funds for the check for future services and did not intend to defraud anyone. Rhodes admitted he was in rehabilitation for drug problems and had a prior conviction for selling drugs. He claimed he was on psychotropic drugs which clouded his judgment on the day he took the check into the bank and that he was "stupid" in trusting the woman who had given it to him.

Rhodes also presented the testimony of a forensic science consultant who said he had compared the writing on the check to Rhodes's handwriting and determined he did not write his name on the check.

DISCUSSION

Rhodes's sole contention on appeal is that the trial court "violated the principles of equal protection when it allowed the participation of co-counsel in this case . . . only if [he] had the funds to pay for co-counsel."^[2] As we explain below, Rhodes has misconstrued the record and cannot show an equal protection violation by the trial court when it declined to appoint cocounsel to assist him in this case.

Procedural History

After the December 2004 denial of his Marsden motion to remove his appointed counsel, the court granted Rhodes's January 7, 2005 motion to proceed in propria persona under Faretta v. California (1975) 422 U.S. 806, 818-832 (Faretta) and appointed a runner and investigator to assist him. At that time, after the court had explicitly advised Rhodes of the potential dangers of self-representation, had inquired into his background and education, and had found he had made a voluntary and understanding waiver of his right to counsel, Rhodes filled out and signed an "Acknowledgement Concerning Right of Self-Representation" pursuant to People v. Lopez (1977) 71 Cal.App.3d 568 (a Lopez waiver).

At a February 1, 2005 status conference before San Diego Superior Court Judge Michael D. Wellington, Rhodes represented he was having problems with obtaining discovery from his former appointed counsel. After Judge Wellington ordered the prosecutor to "facilitate the pass-over of the files or to re-provide all discovery to [Rhodes]," the court granted Rhodes's additional request that the prosecutor make contact with him regarding this case. When Rhodes then requested an evidentiary hearing "to see what all the evidence is available against [him]," Judge Wellington told him he would probably not get that, only the discovery to which he was entitled. Judge Wellington explained there were other ways for Rhodes or his investigator to look at the evidence and reminded Rhodes he had decided to be his own lawyer, "so [he had] to make those arrangements. It's not going to happen in court in the form of an [evidentiary] hearing."

Rhodes then asked, "How do I obtain co-counsel?" Judge Wellington responded, "You don't. You can go hire one if you want." When Rhodes then asked, "I can hire co-counsel?," Judge Wellington replied. "If you want to do that, you can hire co-counsel. But you decided to be your own lawyer. And although I may have some discretion to appoint co-counsel, I'm not going to grant co-counsel in this case. I'm looking at the charges, and you're a pretty articulate guy. There's no reason for you to have co-counsel, court-appointed co-counsel. If you want to hire one, go ahead."

Subsequently, on March 25, 2005, Rhodes submitted a written motion to the court for the appointment of cocounsel, stating he realized "some reliable legal advice could clear up many complications" in the discovery in this case and due to "lack of financial resources" he was unable to retain private legal services. Judge Wellington denied the written request by ex parte order filed that same day.

The Applicable Law

Regarding a defendant's right to the equal protection of the laws guaranteed by both the federal and state constitutions (see U.S. Const., XIV Amend.; Cal. Const., art. I, § 7), such guaranty "means simply that persons similarly situated with respect to the purpose of the law must be similarly treated under the law." (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.) Thus, our Supreme Court has held in the context of a criminal defendant's argument "any advantage which is available to the wealthy defendant must, of constitutional necessity, be extended to an impecunious one [to ensure] equality of treatment," that equal protection principles "do not demand such practical parity." (People v. Jackson (1980) 28 Cal.3d 264, 286 (Jackson), overruled on another point in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) Rather, the court found, as it had earlier done in In re Antazo (1970) 3 Cal.3d 100, that " 'the equal protection clause does not require "Absolute equality" [citation], is not "a demand that a statute necessarily apply equally to all persons" [citation] and permits a state to "provide for differences so long as the result does not amount to . . . an 'invidious discrimination.' " [Citation.]' [Citation.]" (Jackson, supra, 28 Cal.3d at p. 286.) To succeed on an equal protection challenge, a defendant must show that "the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." (In re Eric J. (1979) 25 Cal.3d 522, 530.)

Although the Sixth Amendment guarantees a criminal defendant both the right to representation by counsel and the right to self-representation, providing the defendant knowingly and intelligently waives the right to counsel (Faretta, supra, 422 U.S. at pp. 835-836), the defendant who chooses to represent himself "does not have a right to simultaneous self-representation and representation by counsel. [Citations.] '[N]one of the "hybrid" forms of representation, whether labeled "cocounsel," "advisory counsel," or "standby counsel," is in any sense constitutionally guaranteed.' [Citation.]" (People v. Bradford (1997) 15 Cal.4th 1229, 1368; McKaskle v. Wiggins (1984) 465 U.S. 168, 183; Garcia, supra, 78 Cal.App.4th at p. 1430.) This is true in both noncapital and capital cases. (People v. Stewart (2004) 33 Cal.4th 425, 517-518.)

It has been determined that California courts have the inherent discretion to appoint cocounsel or advisory counsel to assist an indigent defendant who elects to represent himself. (People v. Crandell (1988) 46 Cal.3d 833, 861 (Crandell), disapproved on other grounds by People v. Crayton (2002) 28 Cal.4th 346, 364-365.) This court power, however, does not equate with the right of a defendant who has chosen to represent himself to demand advisory counsel or cocounsel. (Garcia, supra, 78 Cal.App.4th at p. 1430.) "[A] self-represented defendant who wishes to obtain the assistance of an attorney in an advisory or other limited capacity, but without surrendering effective control over presentation of the defense case, may do so only with the court's permission and upon a proper showing." (People v. Bloom (1989) 48 Cal.3d 1194, 1219.) The trial court should only appoint counsel to assist an indigent defendant when he makes a substantial showing that "in the circumstances of the case the cause of justice will thereby be served and that the orderly and expeditious conduct of the court's business will not thereby be substantially hindered, hampered or delayed." (People v. Mattson (1959) 51 Cal.2d 777, 797, disapproved on another point in Crandell, supra, 46 Cal.3d at pp. 861-862.)

"[E]qual protection demands are satisfied [even in a capital case] by permitting the trial court, in its discretion, to appoint additional counsel at public expense if the circumstances in a particular case appear to require such an appointment. [Citation.]" (Jackson, supra, 28 Cal.3d at p. 287.) The test "is not whether the indigent defendant is entitled to waste money in unnecessary expenditures as might an affluent and profligate defendant, but whether the indigent defendant is placed on a general level of equality with nonindigent defendants. [Citations.] The requirement of the showing of necessity specifying the general area of inquiry does not place the indigent defendant on a constitutionally impermissible plane differing from that of the defendant who can afford to finance the ancillary defense services [such as cocounsel or advisory counsel]. [Citation.] The showing required of the indigent defendant substitutes for the substantial economic inhibition upon one's spending his own resources in an endeavor known to be useless. The necessary parity between the indigent defendant and others [required by the equal protection clause] is to be achieved not by permitting the indigent to spend public funds at his whim but rather by administration [of the reasonable necessity requirement.]" (People v. Faxel (1979) 91 Cal.App.3d 327, 331 (Faxel); see also People v. Blair (2005) 36 Cal.4th 686, 733.)

Analysis

Here, as the People point out, Rhodes failed to specifically argue in the trial court that the denial of cocounsel amounted to a violation of his federal constitutional rights. His equal protection claim is, therefore, technically forfeited. (United State v. Olano (1993) 507 U.S. 725, 731; People v. Panah (2005) 35 Cal.4th 395, 436.)

Moreover, his claim is also substantively without merit. Rhodes does not dispute the validity of his waiver of the right to counsel or in any way challenge the trial court's granting him the right to act as his own counsel. As noted above, Rhodes does not have a federal constitutional right to cocounsel. When he first inquired as to whether he could obtain such counsel, the court in essence told him it would not grant that request because, after reviewing the charges in this case and viewing Rhodes's conduct in representing himself, it found him articulate and could find no reason to appoint cocounsel. Before so ruling, Judge Wellington had granted Rhodes the right to proceed as his own counsel^[3] and had granted his discovery motions and requests brought orally without the assistance

of cocounsel. Judge Wellington could have reasonably concluded from such earlier dealings that Rhodes possessed sufficient skill and intelligence as an advocate for himself at that point to retain primary control over his own case. (See People v. Clark (1992) 3 Cal.4th 41, 111-112.)

It is unfortunate that Judge Wellington muddied this ruling by telling Rhodes he could hire cocounsel if he so desired, as such additional wording has provided Rhodes the fodder with which to raise this equal protection violation claim. However, to posit such contention on this record is to read the record out of context. Judge Wellington at no time granted cocounsel status as Rhodes asserts on appeal. Nor did Judge Wellington rule that Rhodes had shown he needed cocounsel and then, to be discriminatory, told him he could only obtain the needed cocounsel if he paid for it himself as Rhodes now argues.

Rather, Judge Wellington properly considered Rhodes's request for cocounsel, as he would any other indigent self-represented defendant's request, by determining whether Rhodes had made a showing that additional counsel was reasonably necessary at public expense. As noted above, equal protection demands are satisfied by such inquiry. (Blair, supra, 36 Cal.4th at p. 733; Jackson, supra, 28 Cal.3d at p. 287; Faxel, supra, 91 Cal.App.3d at p. 331.) We presume Judge Wellington used the same standard when he considered and then denied Rhodes's subsequent written request. On this record, Rhodes cannot show he was not placed on a general level of equality with nonindigent defendants who have chosen to represent themselves in a criminal case. No equal protection violation is shown.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.

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^[1] All statutory references are to the Penal Code unless otherwise specified.

^[2] Rhodes properly does not challenge the trial court's exercise of discretion in not appointing cocounsel to assist him in his defense. Because California courts have distinguished between capital and noncapital cases in ruling on requests for appointment of advisory or cocounsel, this court has previously held that the ruling in a noncapital case is generally not subject to appellate review because there usually can be no abuse of discretion in denying a request for advisory counsel in a noncapital case. (People v. Garcia (2000) 78 Cal.App.4th 1422, 1428-1431 (Garcia).)

^[3] As compared to capital cases with complex issues where the need for the assistance of additional counsel might be shown (see People v. Bigelow (1984) 37 Cal.3d 731), this was a noncapital case involving uncomplicated charges stemming out of the attempt to fraudulently cash a check by a 48-year-old, high school graduate with two years of college, who had previous experience with the criminal justice system and clearly understood the charges and possible punishment he currently faced.