Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. Super. Ct. No. 06NF0610
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
On July 25, 2007, a jury convicted Harpreet Singh Brar of two counts of willful failure to file a personal income tax return in violation of Revenue and Taxation Code section 19706, one count of willful failure to file an income tax return for the Brar Corp in violation of section 19706, and one count of willful failure to file an income tax return for the Brar and Gamulin, LLC, in violation of section 19706. The jury acquitted Brar of one count of filing a false tax return in violation of section 19705, subdivision (a)(1). The trial court sentenced Brar to five years of formal probation, ordered him to serve 365 days in jail, and ordered him to pay $826,648 in restitution to victims.
Brar, who has a law degree, represented himself in the trial court after November 16, 2006, when he submitted a signed Faretta v. California (1975) 422 U.S. 806 (Faretta) waiver of his right to counsel. In accepting the waiver, the trial court confirmed Brar was a licensed attorney and had handled criminal cases.
On appeal, Brar contends the trial court did not provide him adequate advisements and warnings before accepting the Faretta waiver and letting him represent himself through trial, thereby depriving him of his right to counsel under the federal and state Constitutions. We conclude Brar was given all required advisements and warnings about self-representation. He filled out, signed, and initialed where appropriate the Faretta waiver form that included those advisements and warnings. There is no evidence Brar was under any mental disability when he did so. Brar knowingly, intelligently, and unequivocally waived his constitutional right to counsel; therefore, we affirm.
Facts
1. Notices and Demands for Tax Returns and Payments
In November 2001, the California Franchise Tax Board (FTB) sent Brar a notice requesting his 1999 income tax return on estimated income of $47,419,977. The estimate was based on Brar’s stock transactions conducted through Charles Schwab & Co., Inc. (Schwab). In January 2002, the FTB sent Brar a notice of proposed assessment of Brar’s 1999 tax liability of about $6.5 million, based on stock transactions conducted through Schwab. In June 2002, the FTB sent Brar a demand for payment, and sent more notices in July and October 2002. Brar did not respond to any of the notices.
A state tax lien was recorded against Brar under his Social Security number and orders were issued to withhold his personal income tax.
In May 2002, the FTB sent Brar a demand for his 2000 tax return and estimated his income for the year 2000 at $965,000 based on his stock transactions through Schwab for that year. In November 2002, the FTB sent Brar a notice of proposed assessment of tax liability based on that estimated income. Brar did not respond to the notice or proposed assessment.
In March 2003, the FTB sent Brar a demand and proposed tax assessment for his 2001 tax return based primarily on income of $84,000 from Brar’s law practice. In July 2004, the FTB sent Brar a notice that his taxes were due, and in September 2005 sent him a final notice. Brar did not respond.
2. FTB Investigation
In December 2003, FTB Special Agent Higa was assigned to investigate Brar’s personal and corporate income tax returns. Higa’s investigation confirmed that Brar failed to file tax returns or pay personal income taxes from February 1999 through February 2003; that Brar failed to file income tax returns for 2002 and 2003 for his law practice, Brar and Gamulin, LLP; and that Brar failed to file corporate income tax returns from February 1999 through February 2003 for Brar Corp, for which Brar served as president and secretary. Based on Brar’s personal banking and investment accounts, business bank accounts, corporate property transfers, and his wife’s income, Higa’s investigation established Brar had earned taxable income during those periods.
Higa explained she determined Brar’s 1999 income tax liability based on the sale of a farm by Brar Corp and the transfer of the sale proceeds to Brar’s Schwab account. Higa estimated Brar’s income as $1.5 million based on the amount transferred to the Schwab account, less a standard deduction for a married couple filed jointly. The amount of unpaid taxes and penalties on that income was $135,612. For the tax year 2002, Higa estimated Brar earned $167,662 from his law partnership, based on disbursements made to Brar. Higa determined Brar’s wife received income of $34,034.55 for the tax year 2002 based on her W-2 form. This resulted in a taxable income for 2002 of $190,239 and income tax of $13,070 for a married couple filing jointly.
In January 2006, Brar filed a personal California income tax return for 1999. The return was prepared by tax preparer Paul Gregerson, who estimated Brar had a loss of about $499,000. That estimate was based on information Brar provided, and did not include the $1.5 million he received from the sale of the farm by Brar Corp.
3. Brar’s Testimony
Brar testified on his own behalf. Brar graduated from law school in 1998 and was admitted to the California State Bar in 2000. He took tax courses in law school and, though not a tax specialist, has advised clients on tax matters.
Brar acknowledged receiving a notice from the FTB for the tax year 1999 but thought it was a joke. He did not contact the FTB because he believed he had a net loss that year of $500,000. He filed income tax returns for the tax years 1999 and 2000 in January 2006.
Brar acknowledged receiving $1.5 million from the sale of the farm, but claimed it was part repayment of a $2 million loan he made to Brar Corp. Brar presented no written evidence of a loan. The farm was purchased in 1989 for $1 million, and Brar claimed $2.38 million was spent on improvements to the farm between 1989 and 1999. The farm sold for $3.2 million in 1999, resulting, he claimed, in a loss of $100,000. In addition to that loss, $140,000 was paid to the real estate agent in connection with the sale of the farm. Brar testified, however, he had no documents showing a loss from the sale of the farm.
Brar explained that in December 1997 he received 100 shares of stock of Ontario Limited, a Canadian corporation, as a gift and became its president. In 1998, he transferred his shares in Ontario Limited to Brar Corp as a loan and received an “IOU” for $2 million dollars in exchange. Brar testified the Ontario Limited stock had no market value, and the value of the stock “[c]ould have been” zero. He claimed the $1.5 million deposited into the Schwab account traced back to, and was repayment of, the IOU from Brar Corp.
After Brar became president of Ontario Limited in 1997, it never filed California state income tax returns, even though it did business in California. He claimed that Ontario Limited stopped filing income tax returns because it was experiencing “a massive loss” and that Brar Corp never filed California state income tax returns because it only had losses. Brar testified he was unaware at the time there was a minimum corporate tax in California of $800, regardless of profitability.
Brar did not maintain corporate resolutions, minutes, and records for Brar Corp because it was not publicly traded. He used corporate funds to buy himself a Porsche, with no corporate resolution authorizing it.
Brar never filed California income tax returns for his law firm, Brar and Gamulin, LLP, because “[i]n [his] opinion, [his] professional opinion, it was not required.” He testified he received no tax liability notices from the FTB for Brar and Gamulin.
BRAR WAS NOT DEPRIVED OF HIS RIGHT TO COUNSEL
1. Applicable Law
The Sixth Amendment to the United States Constitution grants a criminal defendant the right of self-representation. (Faretta, supra, 422 U.S. at pp. 833-834.) A trial court must grant the defendant’s request for self-representation if (1) the defendant is mentally competent and makes the request “‘knowingly and intelligently, having been apprised of the dangers of self-representation’”; (2) the defendant makes the request unequivocally; and (3) the defendant makes the request within a reasonable time before trial. (People v. Stanley (2006) 39 Cal.4th 913, 931-932.)
When a defendant requests self-representation, the trial court must “ma[k]e [the defendant] 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.’” (Faretta, supra, 422 U.S. at p. 835.) “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.” (People v. Koontz (2002) 27 Cal.4th 1041, 1070.)
In People v. Lopez (1977) 71 Cal.App.3d 568, 572-574 (Lopez), the court listed suggested advisements and questions designed to ensure a clear record of the defendant’s knowing and voluntary waiver of counsel. The California Supreme Court in People v. Koontz, supra, 27 Cal.4th at pages 1070-1071, recited this list with approval, stating: “First, the [Lopez] court recommended the defendant be cautioned (a) that self-representation is ‘almost always unwise,’ and the defendant may conduct a defense ‘“ultimately to his own detriment”’ [citation]; (b) that the defendant will receive no special indulgence by the court and is required to follow all the technical rules of substantive law, criminal procedure and evidence in making motions and objections, presenting evidence and argument, and conducting voir dire; (c) that the prosecution will be represented by a trained professional who will give the defendant no quarter on account of his lack of skill and experience; and (d) that the defendant will receive no more library privileges than those available to any other self-represented defendant, or any additional time to prepare. Second, the Lopez court recommended that trial judges inquire into the defendant’s education and familiarity with legal procedures, suggesting a psychiatric examination in questionable cases. The Lopez court further suggested probing the defendant’s understanding of the alternative to self-representation, i.e., the right to counsel, including court-appointed counsel at no cost to the defendant, and exploring the nature of the proceedings, potential defenses and potential punishments. The Lopez court advised warning the defendant that, in the event of misbehavior or disruption, his or her self-representation may be terminated. Finally, the court noted, the defendant should be made aware that in spite of his or her best (or worst) efforts, the defendant cannot afterwards claim inadequacy of representation. [Citation.] As indicated above, the purpose of the suggested Lopez admonitions is to ensure a clear record of a knowing and voluntary waiver of counsel, not to create a threshold of competency to waive counsel.”
2. Brar Knowingly, Intelligently, and Unequivocally Waived His Right to Counsel After Receiving All Required Advisements and Warnings.
Brar filled out and signed the Faretta waiver form and presented it to the trial court at his arraignment on November 16, 2006, far in advance of the trial held in July 2007. The Faretta waiver form included all of the Lopez advisements and warnings. After each of the seven advisements and warnings, Brar circled “Yes” to show he had considered it. In response to the questions on the form, Brar answered he had never represented himself in a jury trial, identified the charge as “Tax Code Violation,” and represented he had considered possible defenses and knew the maximum penalty. On the form, he represented he had eight years of elementary school education, four years of high school education, and eight years of college; his first language was Punjabi; and he had never been treated for mental illness.
In accepting the waiver, the trial court confirmed Brar was a licensed attorney and practiced law. Brar stated his area of practice was “[m]ostly civil litigation.” The trial court asked Brar whether he had ever handled criminal cases, and he responded, “[y]es, I have.” The court then permitted Brar to represent himself.
Brar contends the Faretta waiver was invalid because he did not completely fill out the form, the trial court did not ask him why the form was incomplete, and the court did not confirm the signature and initials on the form were his. Brar completed the Faretta waiver form except for two questions—Brar did not answer the questions asking, “[p]lease explain your views about the form” and “[p]lease explain briefly why you wish to represent yourself.” Answers to those questions were unnecessary for the trial court to determine whether Brar’s request for self-representation was knowingly, intelligently, and unequivocally made. Although the trial court did not confirm Brar’s signature and initials, Brar does not assert he did not sign and initial the form, and there is no question he did so.
Brar contends the Faretta waiver is invalid because the record includes no indication he “actually knew the maximum penalty he was facing.” On the Faretta waiver form, Brar answered “Yes” to the question, “[d]o you know the maximum penalty in the event you are convicted?” That is sufficient. The trial court was not required to explain the charges and penalties, particularly considering Brar is a lawyer and had handled criminal cases. In addition, the record shows Brar was aware of the nature of the charges against him and the punishments they imposed.
Next, Brar contends the waiver of right to counsel was invalid because “[n]either the court’s questions, nor the Faretta waiver [he] signed, indicated whether [he] understood the defenses to the charges he was facing.” To the contrary, the Faretta waiver form asks, “[h]ave you considered possible defenses?” Brar answered, “Yes.” The trial court was not required to ask Brar whether he understood the nature of those defenses, for “technical legal knowledge, as such, [is] not relevant to an assessment of his knowing exercise of the right to defend himself.” (Faretta, supra, 422 U.S. at p. 836.)
On July 18, 2007, the first day of trial, Brar informed the court his bar status was inactive and he faced disciplinary proceedings. He contends the trial court should have reminded him of his right to court-appointed counsel at that time. The Sixth Amendment does not require the trial court to give repeated Faretta warnings. (People v. Crayton (2002) 28 Cal.4th 346, 362; People v. Goodwillie (2007) 147 Cal.App.4th 695, 723.) Further, the fact Brar’s bar status had become inactive and he faced disciplinary proceedings would not have affected his mental competence to waive his right to court-appointed counsel, and would not mean his prior Faretta waiver was not knowingly and intelligently made.
Finally, Brar argues, “the evidence from sentencing demonstrates that at the November 16, 2006, hearing when [he] was allowed to assume the reins of his own defense, [he] may have been under the influence of drugs and alcohol.” Brar asserts that in 2006 he was abusing alcohol and using methamphetamine. However, there is no evidence in the record suggesting Brar was in fact under the influence of drugs or alcohol when he filled out and signed the Faretta waiver form.
In conclusion, Brar was given all required advisements and warnings about self-representation. He filled out, signed, and initialed where appropriate the Faretta waiver form and submitted it to the trial court. In so doing, he made a knowing, intelligent, and unequivocal waiver of his constitutional right to counsel.
Disposition
The judgment is affirmed.
WE CONCUR: SILLS, P. J., O’LEARY, J.