Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA073138. George Genesta, Judge.
John L. Staley, 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, Assistant Attorney General, Lance E. Winters and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, P. J.
A jury found defendant and appellant Willie Floyd Mays guilty of one count of possessing heroin for sale, one count of possessing cocaine base, and one count of transporting heroin. (Health & Saf. Code, §§ 11351; 11350, subd. (a); & 11352, subd. (a).) In bifurcated proceedings, appellant admitted that he had suffered one prior conviction within the meaning of the Three Strikes law (Pen. Code, §§ 1170.12, subds. (a)-(d) and 667, subds. (b)-(i)), and that he had served three prior prison terms within the meaning of section 667.5, subdivision (b). Appellant was sentenced to state prison for 11 years, which was calculated as the midterm of 4 years on the transporting heroin conviction, doubled pursuant to the Three Strikes law, plus one year each for the three prior prison terms. The court imposed a concurrent term of 2 years on the possessing cocaine base conviction, and a concurrent term of 3 years on the possessing heroin for sale conviction, which terms were stayed under section 654.
All undesignated section references are to the Penal Code.
Appellant contends on appeal that the trial court erred when initially advising him regarding his right to counsel and to self-representation before the preliminary hearing by failing to advise him of the maximum possible period of confinement. He further contends that the trial court’s failure to readvise him of his statutory right to counsel at the arraignment on the information filed after the preliminary hearing violated section 987 and his federal due process rights. Finally, he contends that Faretta v. California (1975) 422 U.S. 806 (Faretta) was wrongly decided. We affirm.
FACTS REGARDING THE OFFENSES
Prosecution Evidence
Around 4:30 p.m. on November 21, 2005, City of Covina Police Officer David Rodriguez saw appellant slouched in the driver’s seat of a pickup truck with his eyes closed. Appellant got out of the truck at the officer’s request. Appellant looked tired and groggy. Appellant consented to a pat-down search. Rodriguez found in appellant’s front pocket a clear plastic bag containing 12 balloons, which were later determined to contain 3.12 grams of heroin. He also found a piece of rock cocaine, $2,216 in cash, and a “pay and owe” stub. Approximately $1,000 of the cash was divided into $200 segments, and then wrapped in a rubber band; the remainder of the cash was loose.
Rodriguez found a wallet inside the door panel of the truck that contained an automobile club card and vehicle registration in the name of Paul Foley. A piece of paper inside the wallet had handwritten notes as follows: “The recooked was done in brandy. That’s why it’s off.” It continued: “Keep the money the – facing the same way and put it up and down.” Another piece of paper found in the wallet had writing on both sides with various numbers and references to money owed. Rodriguez found a pipe commonly used to ingest cocaine in the bed of the truck; he found no paraphernalia consistent with the ingestion of heroin.
Another police officer indicated the note said, “That’s why it is soft.”
Appellant was taken to the police station and booked. A urine test indicated appellant had cannabinoids and cocaine in his system.
Officer Richard Walczak, a narcotics expert for the Covina Police Department, testified that heroin is typically packaged for sale in small latex balloons. Users of heroin tend to have only small quantities in their possession. Heroin is commonly ingested by using a syringe to inject it intravenously, but no such paraphernalia was found on appellant or in the truck. Heroin dealers commonly carry large amounts of cash, and keep their personal money separated from the proceeds of drug sales.
Walczak stated that alcohol or water is used to break down heroin to make it useable, and one of the notes found in the Foley wallet appeared to indicate that brandy had been used to soften the heroin. The second part of the note seemed to be instructions on how to keep the money. The second note found in the Foley wallet was typical of “pay-owe” sheets kept by drug dealers to remember who owes them money, how much, and for what quantity. The receipt found in appellant’s pocket with numerical calculations was also consistent with being a pay-owe sheet.
Defense Evidence
Oscar Vejar testified that on November 21, 2005, appellant came to Covina to look at a car Vejar had for sale.
Billy Nealy, appellant’s brother, testified that he had been convicted of forgery and for being a felon in possession of a firearm. Nealy said in mid-November 2005 he loaned appellant $500 to buy a car.
Paul Foley testified that he had been convicted of possession of narcotics, possessing narcotics for sale, and for being under the influence of a controlled substance. Foley said that on November 21, 2005, he allowed appellant to borrow his truck to go look at a car that was for sale. Foley left his wallet in the truck; it contained his driver’s license, vehicle registration, and two notes documenting loans he had made to a man named Juan. The second note found in his wallet was not in his handwriting. He recognized it, but said he had simply torn that piece of paper off of another piece of paper, intending to write on it.
FACTS RELATING TO THE SELF-REPRESENTATION ISSUES
Appellant’s Request to Represent Himself
A felony complaint was filed on November 22, 2005. On December 15, 2005, 13 days prior to the preliminary hearing, appellant waived his right to counsel and elected to represent himself. Up until that time, he had been represented by a deputy public defender. He executed a form entitled “Advisement and Waiver of Right to Counsel (Faretta Waiver),” which advised him, among other things, of his right to a trial, to an attorney, and of the disadvantages of self-representation. The form advised appellant against representing himself. He indicated on the form that he attended high school, but did not graduate, and that he was aware of the crimes with which he was charged, but did not know what facts would have to be proved for him to be found guilty of the charged offenses, or what legal defenses there were to the charged offenses.
The court stated to appellant that his lack of knowledge in that regard would put him at a distinct disadvantage. “You’re going to go up against an experienced lawyer whose whole desire in life was and is to be a prosecutor. Not to prosecute you, but to prosecute crimes.” The court continued: “Judges and lawyers hire lawyers in civil matters and criminal matters, okay. I mean you really would be at a distinct disadvantage, especially in a felony matter such as yours, all right, to represent yourself. I’m not saying that I’m going to deny your request, but I want you to understand that you’re going to be at a distinct disadvantage if you represent yourself in this case. [¶] Also, understand that if you are allowed to represent yourself, the court – whether it be this court or some other court – will expect that you conduct yourself as any other lawyer would. You will need to make the appropriate objections just as any other lawyer would. You will need to know the law. You will need to know the defenses, and you will need to know what the People need to prove in order to adequately represent yourself. Again, that does put you at a very distinct disadvantage when the person is representing himself or herself. [¶] Also, Mr. Mays, if at the conclusion of this matter there is a trial, and if a jury finds you guilty, the one thing that you cannot raise on appeal is, well, you know what, I didn’t have a lawyer. I represented myself. You might have some other ground, but that’s the one ground that you cannot raise. And what if you are found guilty because you didn’t have a lawyer?” Appellant said he understood what the court was saying. He verified that he had read the entire Faretta waiver form and understood it, and still desired to represent himself.
The preliminary hearing was held on December 28, 2005. Appellant represented himself. He was held to answer, and a felony information was filed.
The Arraignment on the Information
Appellant’s arraignment on the information took place on January 12, 2006. The court noted that appellant was representing himself, but it did not repeat the Faretta advisement. The People offered a plea deal of six years, but appellant rejected that offer. He asked the court how to subpoena the 911 dispatch call, and the court replied, “See, the problem is you’re representing yourself.” “You gave up your right to an attorney, so I can’t advise you how to do things.” Appellant then asked if he could “get into a pro per module” to have access to legal materials and a defense investigator. The court responded that it would order that appellant be moved to the pro per module of the jail, directed the bailiff to provide appellant with a list of investigators, and approved $500 for the defense investigator.
The Trial
The clerk’s transcript indicates that on June 15, 2006, the date set for trial, the court conducted a hearing on the issue of appointing a stand by attorney. Attorney Gary Meastas was appointed as stand by attorney for appellant.
Appellant then stated he was not ready to begin the trial because he had not completed certain discovery to support his assertion that he possessed drugs for his own use but not for the purpose of selling them. The court reiterated that he had the absolute right to represent himself, or to have an attorney represent him, and expressed concern that the legal arguments he was making “require[] some skill in examination of certain witnesses that will be testifying.” The court asked appellant if he was confident that he could do so on his own. He responded: “No, sir. I’m not confident that I can do this on my own.” The court asked, “Are you saying that you continue to wish to represent yourself or do you wish to have counsel? We’re down here at the wire now, sir.” Appellant replied, “I understand. I haven’t been able to get things done by myself.” After further discussion, appellant agreed that he had no further need for the investigator or other discovery.
The court stated that it would explain to the jury the fact that appellant was representing himself, and had chosen to do so and not accept the services of an attorney, as was his right. Appellant replied, “Yes, sir.” The court continued: “I will advise the jury that I will treat you the same as a lawyer and I will not assist you in this trial and that – that you are doing so at your own wish and that’s your right whether I agree with it or not, whether I think it’s wise or not. Do you understand?” Appellant replied in the affirmative.
Post-Trial Proceedings
After appellant was found guilty, a hearing was held on August 9, 2006, on his motion for new trial, which he filed in pro per. Appellant then requested that counsel be appointed, and the court appointed Gary Meastas to represent appellant. Counsel filed a motion for new trial on appellant’s behalf. The motion was denied.
DISCUSSION
I. The Court Was Not Required to Advise Appellant of the Maximum Possible Sentence
Appellant contends that his waiver of the right to be represented by counsel was unknowing and involuntary because he was not specifically informed, at the time the court advised him of the dangers and disadvantages of self-representation, of the maximum penal consequences he faced if convicted of all counts. We disagree.
The governing law is well-established. “A criminal defendant has a right, under the Sixth Amendment to the federal Constitution, to conduct his own defense, provided that he knowingly and intelligently waives his Sixth Amendment right to the assistance of counsel. [Citations.] A defendant seeking to represent himself ‘should be made 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.” [Citation].’ [Citation.] ‘No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation.’ [Citation.] Rather, ‘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.’ [Citations.]” (People v. Blair (2005) 36 Cal.4th 686, 708.)
The record as a whole establishes a knowing and intelligent waiver by appellant of the right to counsel. Appellant was warned of the dangers and disadvantages of self- representation, both orally and in writing, prior to the preliminary hearing. The court informed him he would be opposed by an experienced prosecutor, and pointed out that even judges and lawyers hire lawyers to represent them. The court said appellant would be at a distinct disadvantage because he would be expected to conduct himself as any other lawyer would, including making the appropriate objections, knowing the applicable defenses and burden of proof. The court further informed him that if convicted he could not argue as grounds for an appeal that he was not represented by counsel. Appellant confirmed he understood what the court was saying. These oral advisements were sufficient to make defendant aware of the dangers and disadvantages of self-representation. (People v. Blair, supra, 36 Cal.4th at p. 708 [oral warnings to the defendant that the prosecutor would have an advantage over him, he would receive no special consideration, that he could not claim ineffective assistance of counsel on appeal, it would be difficult to be objective, and a death penalty case involved special risks were sufficient].)
In addition, appellant’s responses on the Faretta waiver form recorded his knowing, voluntary, and intelligent waiver. (People v. Blair, supra, 36 Cal.4th at pp. 708-709.) The form explicitly set forth the numerous disadvantages of self-representation, and advised appellant against representing himself. He acknowledged that he understood the form in its entirety, but confirmed that he wished to represent himself.
Appellant contends that the advisement he was given was nonetheless insufficient because he should have been informed, at the time the court advised him of the dangers and disadvantages of self-representation, of the maximum penal consequences he faced if convicted of all counts. “The contention must fail because there is no requirement in this state for the trial court to give such advisements. Neither the United States Supreme Court nor any California case we have reviewed requires the trial court to specifically advise a defendant seeking to represent himself of the penal consequences.” (People v. Harbolt (1988) 206 Cal.App.3d 140, 149.)
In addition, we note that appellant was advised at the arraignment on the information, less than two weeks after the initial waiver was taken, that the maximum penalty he faced was 15 years imprisonment. He did not express any surprise, remorse, or equivocation when the trial court so informed him. Again, at a pretrial hearing on April 25, 2006, the court reminded appellant he was “looking at 15 years on this case,” and appellant said he understood.
In sum, the entire record shows appellant was made aware of and understood the dangers and disadvantages of self-representation such that his waiver of the right to counsel was “‘made with eyes open.’” (Faretta, supra, 422 U.S. at p. 835, quoting Adams v. United States ex rel. McCann (1942) 317 U.S. 269, 279.) We have no difficulty in concluding that appellant’s waiver of counsel was knowing and intelligent.
II. Any Error in the Advisement of the Statutory Right to Counsel at the Arraignment on the Felony Information Was Not Prejudicial
Appellant contends that the trial court’s error in failing to give an additional advisement of his right to counsel and to again obtain a waiver of that right at his arraignment requires reversal of the judgment. We disagree.
Section 859 provides, in pertinent 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 of the court in which the complaint is on file. 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.”
Section 987 provides in pertinent part: “(a) 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.”
Thus, “the governing statutes provide[] . . . that a defendant in felony proceedings shall be advised of the right to counsel on at least two distinct occasions prior to trial: first, when the defendant is brought before a [magistrate in municipal court or judge in a unified superior court] and advised of the filing of the complaint (§ 859), and second, after the preliminary examination, when the defendant is arraigned in superior court on the information (§ 987).” (People v. Crayton (2002) 28 Cal.4th 346, 360.)
In People v. Crayton, supra, 28 Cal.4th 346, the court addressed the issue whether an additional advisement was required in a case where a valid waiver had been given in municipal court, but the matter was later transferred to the superior court. People v. Crayton found no error under the federal constitution because federal authority held that once a defendant gave a valid waiver, it remained in effect unless it was withdrawn or limited to a particular phase of the case. (Id. at p. 362.) People v. Crayton also considered whether any error under California law by virtue of the provisions of Penal Code section 987 was reversible per se, or could be addressed under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Crayton, supra, 28 Cal.4th at pp. 349-350.) In concluding that the harmless error standard applied, the court noted that although section 987 requires advice and inquiry at the arraignment, “nothing in the language of the statute provides that when a defendant previously has been informed of his or her right to counsel at trial and has been adequately warned of the pitfalls of representing oneself at trial, the defendant’s prior waiver of counsel and exercise of the constitutional right to represent himself or herself shall not ‘carry over’ or be legally ‘effective’ in the absence of a renewed warning and waiver.” (Id. at p. 364.) “In some cases, the exchange between the magistrate and the defendant during the initial advisement and waiver may raise questions as to whether the defendant voluntarily and knowingly intended to waive his or her right to counsel throughout the entire proceedings or only at the preliminary hearing. . . . Under such circumstances, a superior court’s failure to obtain a new and clear indication that the defendant desired to represent himself or herself at trial might well be prejudicial under the Watson standard.” (Id. at p. 365.)
However, “when a defendant charged with a felony has been fully and adequately advised at the municipal court stage of the proceeding (or now at the equivalent stage in a unified superior court) of his or her right to counsel throughout the proceedings (including trial) and the defendant has waived counsel under circumstances that demonstrate an intention to represent himself or herself both at the preliminary hearing and at trial, a superior court’s failure to readvise the defendant and obtain a new waiver of counsel at the defendant’s arraignment on the information in superior court, although erroneous under the governing California statute, does not automatically require reversal of the ensuing judgment of conviction. . . . [T]he prejudicial effect of such error must be evaluated under the harmless error standard set forth in Watson, supra, 46 Cal.2d 818, 836.” (People v. Crayton, supra, 28 Cal.4th at p. 350.) “Our holding . . . applies as well to felony proceedings in a unified superior court -- i.e., a superior court’s failure, at the arraignment on the felony information, to readvise an unrepresented defendant of his or her right to counsel, as required by statute, is subject to the Watson prejudicial error standard.” (People v. Crayton, supra, 28 Cal.4th at p. 350, fn. 1.)
Assuming that section 987 was not strictly complied with in that the trial court at the arraignment failed to expressly re-advise appellant of his right to counsel and obtain a new waiver of the right as required by section 987, we conclude the error was harmless under the Watson standard. Despite the absence of an explicit re-advisement, the record as a whole demonstrates both that appellant knew he had the right to counsel at the subsequent proceedings and that an explicit re-advisement would not have caused him to change his mind about representing himself. (See People v. Crayton, supra, 28 Cal.4th at p. 365.)
Appellant was fully advised prior to the preliminary hearing of his right to counsel, when he executed the Faretta form. The trial court clearly warned appellant of the dangers and disadvantages of self-representation. Appellant never wavered from his decision to give up his right to counsel. At the time of his arraignment on the information, appellant expressed frustration about how to go about obtaining discovery, and the court reminded him it could not assist him. He did not request counsel. Instead, he demonstrated familiarity with the process of self-representation by requesting that he be moved to the pro per module of the jail so he would have access to legal materials and an investigator. Thereafter, when the matter was called for trial, he stated that he had been unable to obtain the discovery he needed. The trial court specifically inquired whether he wished to continue to represent himself or wished to have counsel appointed, but appellant did not equivocate in his desire to represent himself. The court told appellant it intended to instruct the jury that appellant had chosen to represent himself, as was his right, regardless of whether the court agreed with his decision. Appellant simply agreed and showed no reluctance in continuing on his own. Indeed, appellant demonstrated after the jury reached its verdict that he was fully aware of his right to counsel, when he requested that counsel be appointed to represent him in bringing a motion for new trial.
Appellant’s waiver of counsel under these circumstances demonstrates a knowing intention to represent himself both at the preliminary hearing and at trial. The record contains no evidence indicating appellant might have changed his mind had he been re-advised of his right to counsel and had another waiver been obtained at the time of his arraignment.
We therefore conclude any error was not prejudicial under the Watson standard. It was not reasonably probable that defendant was unaware of his right to counsel at trial or that he would have agreed to let the trial court appoint counsel to represent him had the trial court made the statutorily required inquiry at the arraignment. (See People v. Crayton, supra, 28 Cal.4th at p. 365.)
Finally, appellant argues that the trial court’s failure to follow section 987, subdivision (a) violated his right to federal due process of law in that the state failed to follow its own statutory procedure. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [100 S.Ct. 2227, 65 L.Ed.2d 175].) He asserts that the judgment must therefore be reversed unless the error is found to be harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
Appellant states that People v. Crayton, supra, only addressed whether violation of section 987, subdivision (a) constituted a violation of the Sixth Amendment right to counsel, and did not consider a due process claim.
As respondent correctly points out, “a statutory violation does not automatically rise to the level of a federal constitutional due process violation. (Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1178.) A violation of the defendant’s rights created by state law amounts to a procedural due process violation only if it implicates the defendant’s protected interest in life, liberty, or property. (Ibid.)” (People v. Talhelm (2000) 85 Cal.App.4th 400, 408, fn. 5.) As did the defendant in People v. Talhelm, appellant here fails to make the argument that section 987 created a liberty interest. “[W]e need not decide whether this statute creates a protected liberty interest. It is not our role as an appellate court to render advisory opinions on constitutional issues. (Hochheiser v. Superior Court (1984) 161 Cal.App.3d 777, 787.)” (People v. Talhelm, supra, 85 Cal.App.4th at p. 408, fn. 5.)
III. There Could Be No Error in the Trial Court’s Adhering to Faretta
Appellant further contends that “Faretta v. California was a poorly reasoned decision which should be overturned by the United States Supreme Court,” while at the same time recognizing that this court is bound to follow that decision. We are indeed bound by it, as was the trial court, and no further discussion is required. (Rodriguez de Quijas v. Shearson/American Exp., Inc. (1989) 490 U.S. 477, 484; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant raises the issue only “in order to preserve his right to file a petition for a writ of certiorari in the United States Supreme Court which seeks to overturn the decision in Faretta v. California.”
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.