Opinion
B299204
05-21-2020
THE PEOPLE, Plaintiff and Respondent, v. LAMONT GARNER KARRIEM, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA471802) APPEAL from a judgment of the Superior Court of Los Angeles County, Mildred Escobedo, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
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After his Faretta motion was granted, Lamont Garner Karriem represented himself at his trial. A jury convicted him of various crimes. On appeal, we reject Karriem's contention that his waiver of the right to counsel was not knowing, voluntary, and intelligent because the trial court failed to advise him of the penal consequences.
Faretta v. California (1975) 422 U.S. 806.
BACKGROUND
A detailed summary of the facts underlying Karriem's crime is unnecessary.
Karriem was charged with kidnapping his daughter (Pen. Code, § 207, subd. (a); count 1) and with child stealing (§ 278; count 2). As to count 1, the information also alleged an enhancement under section 667.85, that the child was under the age of 14 and taken with the intent to permanently deprive a parent of that child.
All further statutory references are to the Penal Code.
At his arraignment, Karriem moved to represent himself. The trial court told Karriem it would grant the motion if he knowingly and voluntarily waived his right to counsel. The trial court emphasized that the charges were extremely serious and advised against self-representation. However, the trial court informed Karriem that if it granted the motion, it would appoint standby counsel and provide for an investigator and pro per funds.
The trial court gave Karriem a few days to reconsider the matter, but Karriem did not change his mind, indicating he still wanted to represent himself so that the case would receive undivided attention. The trial court then proceeded to question Karriem, establishing that he could read and write and had two years of college. The trial court reviewed the advisement and waiver of right to counsel (Faretta waiver) form crim 185, which Karriem initialed and signed. The form did not advise Karriem of the potential sentence he faced if found guilty of all charges, although it did advise him that he was giving up the right to have an experienced counsel explain the crimes he was charged with and possible defenses to them. It also advised that he was giving up having an experienced counsel determine what posttrial motions and sentencing options he would have.
Karriem said he understood he would face an experienced prosecutor and would not receive assistance and special treatment. When the trial court asked if Karriem understood the elements of the crimes with which he was charged, Karriem said he knew the allegations but did not know whether the crimes involved general or specific intent. Karriem acknowledged that without an attorney he would have difficulty identifying defenses and making objections. Further, pretrial issues could be waived if not properly raised, and it would be almost impossible for Karriem to negotiate a guilty plea if self-represented. If Karriem did not make the proper objections at trial, damaging evidence might be admitted against him. The trial court asked Karriem if he was aware of the possible sentence he could receive as a result of conviction, and Karriem answered in the affirmative. However, Karriem added he did not understand how the section 667.85 enhancement could affect his possible sentence. The trial court did not elaborate that the enhancement imposes a five-year term if found true.
The trial court granted the Faretta motion, finding that Karriem was mentally capable of representing himself, was literate and informed about his right to counsel, and understood the implications of waiving his right to counsel and had done so voluntarily and rationally and fully advised of the dangers of self-representation.
A month later, at a trial setting hearing, the People made Karriem an offer to settle the case. The prosecutor then accurately informed him that the maximum sentence was 14 years (13 years on count 1 plus one-third the midterm on count 2) and a strike. Although Karriem said he understood, the trial court wanted to make it "perfectly clear" they were there for trial and that Karriem was facing a potential sentence of 14 years. Even after the trial court explained that based on the time Karriem had already served he would serve only six to eight months more if he took the offer, Karriem declined the offer and proceeded to trial. At no time, did Karriem ask the trial court to withdraw his pro per status or to have counsel appointed.
The jury found Karriem guilty as charged, including the enhancement. On June 3, 2019, the trial court suspended execution of an eight-year sentence and placed Karriem on five years' formal probation.
DISCUSSION
A criminal defendant has a federal constitutional right to represent himself if he voluntarily and intelligently so chooses. (Faretta v. California, supra, 422 U.S. at pp. 835-836.) A trial court must grant a defendant's request for self-representation if the request is timely and unequivocal and made voluntarily, knowingly, and intelligently. (People v. Johnson (2019) 8 Cal.5th 475, 499.) There is no prescribed script or admonition trial courts must use to warn a defendant of the dangers of self-representation. (People v. Daniels (2017) 3 Cal.5th 961, 977-978.) Rather, the record must demonstrate that the defendant understood the disadvantages of self-representation, including the risks and complexities of the case. (People v. Burgener (2009) 46 Cal.4th 231, 240-241.) We review the entire record, including proceedings after invocation of the Faretta right, and decide de novo whether the waiver of the right to counsel was knowing and voluntary. (People v. Bush (2017) 7 Cal.App.5th 457, 469; People v. Conners (2008) 168 Cal.App.4th 443, 455.)
The types of warnings that are sufficient include that self-representation is generally unwise, the defendant must follow the same rules governing attorneys, the defendant will face an experienced prosecutor with a significant advantage in skill and training, the trial court may terminate the defendant's self-representation should the defendant become disruptive, ineffective assistance of counsel will not be a ground for appeal, and the defendant will not receive special treatment from the court. (People v. Sullivan (2007) 151 Cal.App.4th 524, 545-546.)
Some courts of appeal have suggested that a defendant seeking self-representation also must be advised of the maximum penal consequences if convicted. People v. Jackio (2015) 236 Cal.App.4th 445, 450, 454-455 suggested that the Sixth Amendment requires notifying the defendant of the maximum penalty the defendant faces if found guilty of the alleged crimes and enhancements. The advisement in Jackio that the defendant faced "life in prison" was therefore adequate. (Id. at p. 455.)
The majority in People v. Ruffin (2017) 12 Cal.App.5th 536, 539 declined to decide the issue, because it concluded that merely giving a defendant a Faretta form and asking the defendant if he had any questions was, in any event, inadequate. However, the court noted that even if advisement of "possible penal consequences" is not mandatory, the total absence of such an advisement is "certainly a factor to consider in determining whether the defendant's waiver was knowingly made." (Ruffin, at p. 544; see People v. Noriega (1997) 59 Cal.App.4th 311, 319-321 [suggesting same].)
In contrast, the record in People v. Bush, supra, 7 Cal.App.5th at page 469 established that the trial court advised the defendant he faced a sentence of up to four years and forfeiture of money seized; however, he was not informed that a $250,000 monetary fine could be imposed. Bush acknowledged that the better practice is to inform the accused of the maximum sentence, including monetary fine, that could be imposed upon conviction, but declined to find that this was a constitutional minimum. (Id. at p. 473.) Similarly, our California Supreme Court has said that although an exploration into possible defenses and punishments may be useful to help a defendant understand what the defendant is getting into, it is not required for a knowing and intelligent waiver of counsel. (People v. Daniels, supra, 3 Cal.5th at p. 979.)
Does the constitution require a trial court to inform a defendant of the maximum possible sentence before accepting a waiver of the right to counsel? Does a defendant need to be readvised if the charges and allegations change upon amendment of the complaint or information, after the preliminary hearing, or during the trial? We need not wade into this debate, because the totality of the record establishes that Karriem was advised of the penal consequences of the charges facing him. At the Faretta hearing, the trial court asked Karriem if he knew what was his possible sentence if convicted, and he answered, "[y]es." He signed a form acknowledging that he was giving up the right to have counsel explain the crimes and enhancements charged and sentencing options. Although Karriem also said he did not know how the enhancement could impact his sentence, he was later informed by both the prosecutor and the trial court that he could serve up to 14 years if convicted.
Under similar facts, People v. Conners, supra, 168 Cal.App.4th at page 446 rejected the defendant's argument that his conviction had to be reversed because he was allowed to represent himself, even though he had not been advised of the penal consequences of the conviction before the Faretta motion was granted. Instead, two weeks after the motion was granted and days before trial began, the parties, with the defendant present, discussed a plea. (Conners, at pp. 448-449.) During that discussion, the trial court told the defendant that his maximum exposure as a second-strike case would be seven years, four months. (Id. at p. 449.) The defendant then reaffirmed his commitment to self-representation. (Ibid.) Notwithstanding that the advisement of penal consequences came after the Faretta motion had been granted, the record demonstrated that the defendant understood the disadvantages of self-representation, including the penal consequences. (Conners, at p. 455.)
Similarly, when Karriem was told that his maximum exposure was 14 years, he remained committed to self-representation, despite the trial court repeatedly pointing out that the prosecutor was offering probation, with limited jail time. Karriem said he appreciated the trial court's explanation but did not want the offer and wanted to proceed to trial. Based on the whole record, Karriem waived his right to counsel knowingly, voluntarily, and intelligently.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J. We concur:
LAVIN, Acting P. J.
EGERTON, J.