Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA302910. David M. Mintz, Judge.
David D. Martin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
Defendant and appellant Robert Chambers (defendant) knowingly and voluntarily waived his right to counsel prior to his preliminary hearing on a felony charge of selling cocaine base in violation of Health & Safety Code section 11352, subdivision (a). The trial court, however, failed to readvise defendant of his right to counsel and obtain a waiver of that right when defendant was arraigned, as required by Penal Code section 987, subdivision (a). (See People v. Crayton (2002) 28 Cal.4th 346, 361 (Crayton).) Defendant represented himself at his jury trial and was convicted.
Section 987, subdivision (a) provides, “In a noncapital case, if the defendant appears for arraignment without counsel, he or she shall be informed by the court that it is his or her right to have counsel before being arraigned, and shall be asked if he or she desires the assistance of counsel. If he or she desires and is unable to employ counsel the court shall assign counsel to defend him or her.” All statutory references are to the Penal Code unless stated otherwise.
On appeal, defendant contends that the trial court’s violation of section 987 requires reversal of his conviction. The People concede that the trial court erred, but argue that the error was harmless. Based on our review of the whole record, we conclude that there is “no reasonable probability that defendant was unaware of his right to be represented by appointed counsel at trial or that he would have accepted the appointment of counsel had the [trial] court made the statutorily required inquiry at arraignment.” (Crayton, supra, 28 Cal.4th at p. 365.) We therefore affirm.
BACKGROUND
A. Factual Background
On the afternoon of May 17, 2006, Officer David Chapman of the Los Angeles Police Department was assigned to a narcotics task force monitoring the area of San Julian Street between Sixth and Seventh Streets, near downtown Los Angeles. The area was known for narcotics trafficking, particularly rock cocaine. Through binoculars, Officer Chapman observed a man later identified as Nelson Rodriguez approach defendant and hand defendant some money; defendant handed Rodriguez an off-white solid substance resembling rock cocaine and put the money in his pants pocket. Rodriguez walked away. Officer Chapman’s partner, Officer Salvador Reyes, alerted other members of the narcotics task force by radio to apprehend Rodriguez and defendant. As one of the officers approached Rodriguez, he saw Rodriguez toss an off-white solid substance to the ground. The officer retrieved the object; it was later determined to be cocaine base. Officers arrested both Rodriguez and defendant. Officers recovered a $5 bill and 15 $1 bills from defendant’s pants pocket.
Defendant testified that Rodriguez paid defendant $1 as partial repayment for bus fare Rodriguez had borrowed. He denied selling Rodriguez rock cocaine, and he denied having possession of rock cocaine the day he was arrested.
B. Procedural Background
On June 5, 2006, defendant appeared with appointed counsel prior to the preliminary hearing and moved to represent himself in propria persona. Prior to the hearing, defendant executed a written advisement and waiver of his right to counsel, pursuant to Faretta v. California (1975) 422 U.S. 806. Defendant indicated on the waiver form that he was a high school graduate, had attended college, and had represented himself in a criminal case in Los Angeles Superior Court in 2004 that resulted in a conviction. The waiver form contained the following advisements, among others:
“I understand that I have the right to be represented by an attorney at all stages of the proceedings and, if I do not have the funds to employ an attorney, one will be appointed for me by the Court at no cost.”
“I understand that depending on the stage of my case, if I ask to give up my pro per status and request counsel to handle my case, the Court may deny this request and I may have to proceed with trial without an attorney.”
“I understand that if at some point an appointed attorney does take over my case, that attorney may be in a disadvantaged position and that such a disadvantage will not be considered an issue on appeal.”
Each of these advisements was separately initialed by defendant. When asked by the trial court, defendant stated that he understood the contents of the waiver form and had been advised concerning the form by his attorney. Defendant also said he understood the charges against him and the potential consequences of a conviction. The trial court then advised defendant as follows:
“Before I can grant your motion, I must advise you of the dangers and disadvantages of self-representation. It is almost always unwise—there is an old saying that goes: He who represents himself has a fool for a client. This means you’re not uninvolved in the case. You’re emotionally involved and may not see things clearly.
“By representing yourself, you are putting yourself at a disadvantage, and the defense of your case may be conducted to your own detriment. Frequently, there are unanticipated risks and dangers that only a lawyer can identify. Such risks may mean the difference between being found not guilty or being convicted.
“You are not entitled to and will not receive any special indulgence from the court. You will be required to follow all of the technical rules of substantive law, criminal procedure and evidence in making motions, presenting evidence, subpoenaing your witnesses to be in court, questioning witnesses and in argument. The same rules governing attorneys will control and restrict you while representing yourself. And you will not receive any help from the court. And you will be required to follow the rules that it takes lawyers years to learn.
“You will be opposed by an experienced, professional attorney. You will not have his skills and expertise. Consequently, you are placing yourself at an extreme disadvantage with respect to legal knowledge, trial experience and expertise, which will not be favorable.
“You will only receive library privileges that are available to any other pro per defendant. You will be expected to go forward within a reasonable period of time. For instance, if books are missing or marked up, that’s not something I’m going to address. Whatever is available to any pro per is what you will be expected to use.
“Further, any misbehavior or disruption in court or out of court may result in the revocation of your pro per status at this stage. I will only deal with the preliminary hearing stage. And you will be expected to conduct yourself in a professional manner and follow my instructions and follow the bailiff’s instructions and the sheriff department instructions. Any disruption or misbehavior in jail could affect your pro per status once you are brought to court.
“If you are requesting—an investigator, I will appoint one for you. However, the investigator is limited to 20 hours of work at this stage of the proceedings. So if you had 10 things you wanted them to do, then you would have to discuss with them how long it’ll take and then you’ll have to prioritize the matters. If the things that you ask for are going to take more than 20 hours in this case, you will need to prioritize what it is you need for the investigator to do.
“Lastly, if you are requesting pro per funds, then I will give you pro per funds. But you are ordered to only spend those funds on your case and not on . . . personal items.”
Defendant stated that, notwithstanding the trial court’s advisement, he still wished to represent himself. The trial court found defendant’s waiver express, knowing, and intelligent, and that defendant had freely and voluntarily waived his right to counsel. The trial court appointed an investigator for defendant and ordered that defendant be given pro per funds to help prepare his defense. After the court asked defendant when he would be ready to proceed to trial, defendant stated he had not been given his depression medication and that, “I need a psychological, your honor.” The trial court did not respond to the request.
A preliminary hearing was held on September 1, 2006 at which defendant, representing himself, waived formal arraignment. The People filed a one count information on September 15, 2006, charging defendant with one count of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)) and alleging that defendant had two prior prison terms (§ 667.5, subd. (b)) and one prior drug conviction (Health & Saf. Code, § 11370.2, subd. (a)). Defendant was arraigned on the information that same day and entered a plea of not guilty. At the time a four-year prison term was offered to and rejected by defendant. The trial court did not readvise defendant of his right to counsel. During trial, the People sought and were granted leave to file an amended information alleging that defendant had one prior strike conviction. (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d).) The trial court did not at that time readvise defendant of his right to counsel. Defendant denied the strike allegation.
After several continuances, the case was assigned to a trial department for trial. On defendant’s first appearance in the trial department, he requested the appointment of advisory counsel to assist him at trial. The trial court indicated that it would deny as untimely a motion to appoint advisory counsel. During the colloquy that followed, however, the trial court asked defendant four times whether defendant would like to request the appointment of counsel to represent him at trial. Defendant stated that he did not want a public defender because, according to defendant, it was well-known that public defenders plead out 98 percent of their cases. The colloquy between the trial court and defendant on this topic concluded as follows:
“THE COURT: . . . [¶] The question I have is a yes or no. Did you want court [sic] to appoint counsel to represent you or did you want to continue to represent yourself?
“THE DEFENDANT: No, sir, I wouldn’t want a pilot that flies a plane two percent of the time.
“THE COURT: I didn’t understand you.
“THE DEFENDANT: I said I wouldn’t want a pilot that flies a plane two percent of the time. [¶] Sir, I’d like to make a motion.
“THE COURT: All right. Wait. I’m going to assume by that comment and the last comment you made that you’re telling me you do not want the court to appoint counsel and you want to continue to represent yourself.
“THE DEFENDANT: Yes, sir.
“THE COURT: Is that correct?
“THE DEFENDANT: That’s correct.”
Defendant represented himself at trial. The jury convicted defendant on the charge of selling cocaine base. Defendant waived a jury trial on his prior convictions. The trial court found true the allegations that defendant had one prior prison term and one prior drug conviction; found not true the allegation that defendant had served a second prior prison term; and struck the prior strike allegation on its own motion. The trial court sentenced defendant to eight years in state prison, consisting of the middle term of four years for his conviction for selling cocaine base, one year for his prior prison term, and three years for his prior drug conviction. The trial court gave defendant 445 days of presentence credit, consisting of 297 days of actual custody and 148 days of conduct credit. The trial court also imposed various fines, fees and assessments that are not at issue on this appeal. Defendant timely appealed.
DISCUSSION
A. Section 987
Section 987, subdivision (a) requires the trial court to advise a defendant of his or her right to counsel whenever the defendant appears without counsel at the arraignment. (§ 987, subd. (a).) The requirement obtains even when defendant was previously advised of the right to counsel and expressed his or her intention to waive counsel throughout the proceedings. (Crayton, supra, 28 Cal.4th at p. 361; People v. Sullivan (2007) 151 Cal.App.4th 524, 550-551 (Sullivan).) Defendant’s primary contention on appeal is that the trial court failed to readvise defendant of his right to counsel when he was arraigned, in violation of section 987, subdivision (a). The People concede that the trial court erred, but contend that the error was harmless under the standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
In Crayton, supra, 28 Cal.4th 346, the California Supreme Court addressed whether and under what circumstances a violation of section 987 might constitute harmless error. The defendant in Crayton was arraigned on a felony complaint in municipal court. Pursuant to section 859, the magistrate advised the defendant of his right to counsel. The defendant waived that right and elected to represent himself. (Id. at pp. 352-356.) When the defendant was arraigned on the felony information in superior court before the same judge, the trial court did not readvise the defendant of his right to counsel. (Id. at pp. 357.) The California Supreme Court held that the trial court violated section 987. Because “the language of section 987 sets forth no exceptions” (id. at p. 361), the rule requiring the trial court to readvise defendant of his right to counsel at arraignment applies even when a defendant has previously waived the right to counsel before the same judge. (Ibid.) The issue before the court was thus “whether the superior court’s error was prejudicial under either federal or state law.” (Ibid.)
The proceedings at issue in Crayton, supra, 28 Cal.4th 346, occurred prior to the unification of municipal and superior courts. The Supreme Court stated, however, that its holding applied equally to felony proceedings in unified superior courts. (Id. at p. 350, fn. 1.)
Section 859 provides, in relevant part, “When the defendant is charged with the commission of a felony by a written complaint . . . he or she shall, without unnecessary delay, be taken before a magistrate . . . . The magistrate shall immediately deliver to the defendant a copy of the complaint, inform the defendant that he or she has the right to have the assistance of counsel, ask the defendant if he or she desires the assistance of counsel, and allow the defendant reasonable time to send for counsel. . . . If the defendant desires and is unable to employ counsel, the court shall assign counsel to defend him or her . . . .”
The Supreme Court concluded that there was no federal constitutional error because the Sixth Amendment to the U.S. Constitution does not require that a defendant be readvised of his or her right to counsel once the defendant has given a valid waiver of that right. (Crayton, supra, 28 Cal.4th at p. 362.) The court observed that, under federal law, once a defendant gives a valid waiver, the waiver continues in effect through the duration of the proceedings unless the defendant expressly requests appointment of counsel for subsequent proceedings or there are circumstances suggesting that the defendant’s waiver was limited to a particular stage of the proceedings. (Id. at p. 362.) The defendant in Crayton had been “clearly and fully admonished of the risks involved in representing himself at both the preliminary hearing and trial stages and . . . nonetheless elected to represent himself throughout the proceedings . . . .” (Id. at p. 363.) Accordingly, “the prejudicial error standard applicable to federal constitutional error [did] not apply.” (Ibid.)
Defendant contends that, in this respect, Crayton, supra, 28 Cal.4th at p. 362, was wrongly decided. We are bound by Crayton. (People v. Birks (1998) 19 Cal.4th 108, 116, fn. 6; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Under state law, the court reasoned, “a reversal per se rule might apply under California Constitution article VI, section 13, when a defendant erroneously is denied the right to counsel or never has knowingly or voluntarily waived that right . . . .” (Crayton, supra, 28 Cal.4th at p. 364.) That was not the error asserted, however—the error was the failure to readvise defendant of his right to counsel after the defendant previously had been advised of and validly waived that right. (Id. at pp. 363-364.) The Supreme Court therefore concluded that “the Watson [supra, 46 Cal.2d at p. 836] standard applies to the superior court’s error in failing to follow the statutory command that the court, at the arraignment in superior court, readvise a defendant of his or her right to counsel and obtain a renewed waiver of that right.” (Crayton, supra, 28 Cal.4th at p. 364.) Section 987 operated as “a prophylactic safeguard” (ibid.); it did “not operate to terminate or revoke the defendant’s validly invoked constitutional right to represent himself or herself at trial.” (Id. at p. 365.) Consistent with the Watson standard, whether a violation of section 987 is prejudicial is determined by “whether a defendant, despite the absence of an explicit readvisement by the superior court at arraignment, nonetheless was aware that he or she had the right to appointed counsel at the subsequent proceedings and whether an explicit advisement at the arraignment would have been likely to lead the defendant to reconsider the decision to represent himself or herself and request that counsel be appointed. [Citation.]” (Crayton, supra, 28 Cal.4th at p. 365.)
The court in Crayton, supra, 28 Cal.4th 346 concluded that the error in that case was harmless. “[T]he error was not prejudicial under the Watson [supra, 46 Cal.2d at p. 836] standard,” the court said, “there being no reasonable probability that defendant was unaware of his right to be represented by appointed counsel at trial or that he would have accepted the appointment of counsel had the court made the statutorily required inquiry at arraignment.” (Crayton, supra, 28 Cal.4th at p. 365.) “Although the court apprised defendant repeatedly of the risks of self-representation, the defendant’s desire to represent himself was unwavering throughout the proceedings. In light of the entire record [citation], there can be no doubt that defendant was aware of his right to appointed counsel at all stages of the proceedings and knowingly and voluntarily waived that right . . . . Thus, we conclude that the Court of Appeal properly determined that there is no reasonable probability that the superior court’s error in failing to readvise defendant of his right to counsel at the arraignment affected defendant’s decision to represent himself throughout the course of the proceedings. (Watson, supra, 46 Cal.2d 818, 836.)” (Crayton, supra, 28 Cal.4th at p. 366, fn. omitted.)
In Sullivan, supra, 151 Cal.App.4th 524, the court applied the rule set forth in Crayton, supra, 28 Cal.4th 346, to hold that, based upon its review of the entire record, a trial court’s violation of section 987 was harmless error. (Sullivan, supra, 151 Cal.App.4th at pp. 552.) The defendant in Sullivan “did not falter in his assertion of his right and intention to represent himself” throughout the proceedings, except to seek advisory counsel and to make “an apparently aborted” request for counsel limited to bifurcated proceedings on prior conviction allegations. (Ibid.) The record was “replete with illustrations” that the defendant was aware of the “difficulties and pitfalls” of self-representation. The defendant had used his pro per status to justify requests for “continuances, transcripts, additional discovery, service of subpoenas, access to his ‘legal papers, ‘legal runners’ and other support services, special investigative, paralegal, or other ‘ancillary’ legal assistance, fees, and even advisory counsel to assist with the presentation of his testimony.” (Ibid.) The defendant had made motions in which he “specifically complained” about the disadvantages of representing himself. (Ibid.) The defendant had also represented himself in prior criminal actions, “and thus through considerable experience was well aware of the consequences of self-representation.” (Ibid.) “We are convinced,” the court concluded, “that a recitation of the dangers and disadvantages of self-representation in superior court would have led to the same result: defendant would have voluntarily proceeded without counsel; the trial would have still occurred with defendant representing himself.” (Id. at p. 553.)
We conclude, as in Crayton, supra, 28 Cal.4th 346 and Sullivan, supra, 151 Cal.App.4th 524, that the trial court’s failure to comply with section 987 in this case was harmless error under the Watson standard. The record as a whole demonstrates that there is “no reasonable probability that defendant was unaware of his right to be represented by appointed counsel at trial or that he would have accepted the appointment of counsel had the [trial] court made the statutorily required inquiry at arraignment.” (Crayton, supra, 28 Cal.4th at p. 365.)
Defendant was fully advised of his right to counsel prior to the preliminary hearing when he executed the Faretta waiver. The trial court warned defendant in clear, unambiguous language of the dangers and disadvantages of self-representation. As the defendant in Sullivan, supra, 151 Cal.App.4th at pp. 552-553, defendant had prior experience with self-representation. Defendant noted on his Faretta waiver that he had represented himself in a prior criminal proceeding in superior court; it appears from defendant’s probation report and his trial testimony that the prior proceeding involved charges and circumstances nearly identical to those in this case. Defendant demonstrated his familiarity with the process of self-representation by seeking and obtaining pro per funds and the appointment of an investigator; by seeking the appointment of advisory counsel on the first day of trial; and by bringing and litigating several motions, including a peremptory challenge against the trial judge, a motion for Pitchess discovery, a motion for sanctions against the prosecutor for failure to provide discovery, a motion to suppress evidence, a motion to dismiss, and a motion for new trial. Defendant also filed two motions for the appointment of expert witnesses; the first line of defendant’s memorandum of points and authorities in support of each states, “The right to counsel includes the right to appoint experts when indigency is established [citations] . . . .”
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
As the defendant in Sullivan, supra, 151 Cal.App.4th at p. 552, defendant was familiar with the difficulties of self-representation. Defendant invoked his pro per status to justify continuances, to complain about his difficulties in communicating with and the competence of his investigator, and to explain his failure to locate and subpoena witnesses (particularly Rodriguez) to testify in his defense. Defendant lodged a formal complaint with the Sherriff’s Department and complained to the trial court about his difficulties in obtaining access to the telephone and to supplies for preparing his case while incarcerated.
Notwithstanding these difficulties, defendant never wavered from or expressed any equivocation about his desire to represent himself. Before jury selection commenced on the first day of trial, the trial court invited defendant four times to request the appointment of counsel. Defendant expressly and unambiguously refused to do so. This is compelling evidence that defendant would not have accepted the appointment of counsel had the trial court advised defendant of his right to counsel at his arraignment, pursuant to section 987. (See Crayton, supra, 28 Cal.4th at p. 365.)
Moreover, defendant made his decision to represent himself and the reasons therefor a central theme of his defense. Defendant sought to “validate why I’m here defending myself” to the jury by explaining during his trial testimony that “a lot” of his prior convictions were the result of “deals” that public defenders had advised him to take. Defendant elaborated on this theme during his argument to the jury: “I know you’re wondering by now how we got this far. This is really quite the theater of the absurd, except it’s happening to me. I have been locked up seven months fighting this case. Seven months. I know you’re wondering in my ineptitude why I would choose to be my own lawyer. It has not been easy, me going against these professional jurists, professional lawyers and the police who professionally testify, and many of them professionally liars. And I have lost some friends. I cannot say why, except for the desire for the truth to come out. Some vague principle of honor and knowing that if I did fight—didn’t fight to break this cycle, I could never be free. [¶] It is important that you understand that I am aware, that I understand the consequences and that I am not naïve.” To exemplify his point, defendant read from a letter he had received from a friend, which stated in part, “ ‘I tried to tell you before I think going pro per is foolish. I’m not willing to help you dig yourself a few extra years. . . . But it doesn’t matter that you’re right, at least not in a courtroom. The criminal court system is not a place where the truth comes out.’ ”
When the trial court sustained the prosecutor’s objection to this line of argument, defendant explained to the trial court that he needed to “put it [his argument] in a framework. There are certainly elements that—for instance, why—I mean, they definitely want to know why I’m going pro per.” His decision to represent himself, defendant argued, was “directly related to the topics that we’re talking about.” Defendant continued his jury argument: “Like some of you, some people thinking [sic] that the situation involved has to do with a messed up system. Has to do with race and a lot of other issues. The reason I brought up the—read the parts of the letter was because I know that you need an explanation as to why I’m doing what I am doing as a defendant, as defending my own self. So many of you might agree with my friend. He says I’m naïve.” Defendant explained, “Once I told the public defender assigned to me the evidence in this case. He told me that we’re all guilty anyway.” Defendant’s argument to the jury is further evidence that it is not reasonably probable that defendant was unaware of his right to counsel, or that defendant would have accepted the appointment of counsel had the trial court readvised defendant of his right to counsel at his arraignment. (See Crayton, supra, 28 Cal.4th at p. 365.)
Defendant argues that the language of paragraphs 3H and 3K of his Faretta waiver (set forth above at page 4) “undermin[ed] any inference of the right to effective appointed counsel after a defendant had previously waived that right,” such that we should not infer that defendant “knew, or would have likely known, that he was entitled to counsel” at his arraignment and, presumably, trial. He further argues that the admonition that any appointed counsel in the future might be at a disadvantage is a deterrent to seeking the appointment of counsel. We will not speculate regarding how a hypothetical lay defendant might have understood the language of the Faretta waiver, as defendant urges us to do. The language in question is intended to inform defendant of potential adverse consequences of foregoing representation by an attorney at that time. The statements are not inaccurate. When defendant executed the Faretta waiver he was represented by appointed counsel, who advised defendant regarding the contents of the waiver. When the trial court inquired of defendant, defendant said he understood the contents of the waiver form. There is no indication in the record that the language of the Faretta waiver in fact dissuaded or discouraged defendant from seeking the appointment of counsel, either at his arraignment or thereafter. To the contrary, the record as a whole convinces us that defendant understood his right to counsel throughout the proceedings and that he knowingly and voluntarily chose to represent himself. The record contains no evidence indicating appellant might have changed his mind had he been readvised of his right to counsel at the time of his arraignment. We therefore conclude that the trial court’s violation of section 987 was not prejudicial under the Watson standard.
B. No Duty to Inquire Regarding Defendant’s Mental Capacity
At least twice during the proceedings, defendant complained to the trial court that he was not receiving his prescribed anti-depressant medication, Paxil, and requested psychiatric services. Defendant argues that courts in several cases have suggested that it is appropriate for a trial court to inquire into a defendant’s “intellectual capacity” to choose self-representation before accepting a waiver of counsel. (See People v. Koontz (2002) 27 Cal.4th 1041, 1070-1071; People v. Goodwillie (2007) 147 Cal.App.4th 695, 705, fn. 4; People v. Lopez (1977) 71 Cal.App.3d 568, 573; People v. Harris (1977) 65 Cal.App.3d 978, 986-988.) Defendant urges us to adopt a rule requiring a trial court to make a thorough “inquiry into [a defendant’s] ‘intellectual capacity’ before accepting a waiver of counsel when . . . the defendant is taking psychiatric medication and, worse, reports not being able to obtain his normal psychiatric medication . . . .”
No such rule is necessary. As stated by the California Supreme Court in People v. Koontz, supra, 27 Cal.4th 1041, one requirement for a valid waiver of the right to counsel is a “determination that the accused is competent to waive the right, i.e., he or she has the mental capacity to understand the nature and object of the proceedings against him or her.” (Id. at p. 1069.) Such a determination will necessarily include whether a defendant’s psychiatric impairment affects the defendant’s competence to make a knowing and intelligent waiver. As stated by the court in People v. Lopez, supra, 71 Cal.App.3d at p. 573, “If there is any question in the court’s mind as to a defendant’s mental capacity it would appear obvious that a rather careful inquiry into that subject should be made—probably by way of a psychiatric examination. It would be a trifle embarrassing to get half way through a trial only to discover that a court has determined that a mentally deficient or seriously mentally ill person has been allowed to make a ‘knowing and intelligent’ decision to represent himself.” The rule proposed by defendant would be redundant.
If defendant uses the term “intellectual capacity” to mean something different than mental competence to stand trial, the rule he proposes may be unconstitutional as a violation of a defendant’s Sixth Amendment right to self-representation. The issue of whether a state may adopt a higher standard for measuring competency to represent oneself at trial than for measuring competency to stand trial is currently pending before the United States Supreme Court. (See Indiana v. Edwards (Dec. 7, 2007, No. 07-208) [128 S.Ct. 741] [granting certiorari to review Edwards v. State (Ind. 2007) 866 N.E.2d 252].)
If we construe defendant’s argument to be that the trial court in this case abused its discretion in failing to make further inquiry into defendant’s mental capacity (§ 1368, subd. (a)), we perceive no error. Our review of the record indicates that there was no reason for the trial court to question defendant’s competence or mental capacity. The trial court inquired of defendant during the waiver colloquy whether he understood the contents of the Faretta waiver form, whether he understood the charges against him and whether he understood the potential consequences of a conviction. Defendant indicated that he understood each of those items, and that the public defender who then represented him had assisted him in doing so. The trial court determined that defendant’s waiver was “expressly, knowingly, understandingly and intelligently” given. Neither defendant nor the appointed attorney who represented him prior to his Faretta waiver raised an issue regarding defendant’s capacity or competence to represent himself. (See § 1368, subd. (b).) Defendant never asserted in the trial court, and there is no indication in the record, that his depression in any way affected his ability to understand the nature and object of the proceedings against him or affected in any material respect his ability to prepare his defense. To the contrary, defendant’s conduct at trial proved him to be an intelligent, articulate and persistent advocate. That defendant might have made different tactical and strategic choices than an experienced attorney might have made “appears to reflect his lack of legal knowledge, not necessarily mental illness or incompetency.” (People v. Koontz, supra, 27 Cal.4th at p. 1070.) The trial court did not abuse its discretion in failing to inquire further into defendant’s mental capacity.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.