Supreme Court of California Justia
Docket No. S095872
People v. Barnum

Filed 3/17/03

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S095872
v.
Ct.App. 3 No. C031302
MARK BARNUM,
County of Lassen
Super. Ct. No. CH013136
Defendant and Appellant.

We granted review to consider a rule, rooted in two Court of Appeal
decisions — Killpatrick v. Superior Court (1957) 153 Cal.App.2d 146
(Killpatrick), and People v. Kramer (1964) 227 Cal.App.2d 199 (Kramer),
declaring that a trial court is required to advise a defendant who represents himself
or herself of the privilege against compelled self-incrimination before such a
defendant is called by the People as a witness in their case-in-chief or testifies in
his or her own defense.
The Court of Appeal below rejected the Killpatrick-Kramer rule, reasoning
that it was not well founded, and in any event was not viable after Faretta v.
California (1975) 422 U.S. 806 (Faretta), which held that under the Sixth
Amendment to the United States Constitution a defendant not only has a right to
the assistance of counsel, but also the right to represent himself or herself.
We granted review to determine whether the Killpatrick-Kramer rule is
valid and, if so, what standard of prejudice applies when it is violated.



As we shall explain, we conclude that the Killpatrick-Kramer rule has not
been undermined by Faretta. Whereas Faretta is based on the United States
Constitution alone, the Killpatrick-Kramer rule largely arises out of California
law. Although Faretta does not require a trial court to advise a self-represented
defendant of the privilege against compelled self-incrimination, neither does it
prohibit such an advisement.
Nonetheless, we conclude that the Killpatrick-Kramer rule is unsound.
That rule does not have any counterpart in the federal courts or in the courts of the
vast majority of our sister states. The general rule is that a trial court ordinarily is
not required to give any advisement to a self-represented defendant who chooses
to represent himself or herself after knowingly, intelligently, and voluntarily
forgoing the assistance of counsel. The Killpatrick-Kramer rule has existed for
many years as a lone exception to this general rule of no mandatory advisement,
requiring a trial court to advise such a defendant of the privilege against compelled
self-incrimination, but of no other right, no matter how important. Justification for
singling out this privilege alone for such differential treatment never has been
clear, and, upon full consideration, simply cannot be discerned. Indeed, since
Faretta, the trial court has been required to make a defendant seeking to represent
himself or herself aware of the dangers and disadvantages of self-representation,
which include the defendant’s inability to rely upon the trial court to give personal
instruction on courtroom procedure or to provide the assistance that otherwise
would have been rendered by counsel. Thus, a defendant who chooses to
represent himself or herself after knowingly, intelligently, and voluntarily forgoing
the assistance of counsel assumes the risk of his or her own ignorance, and cannot
compel the trial court to make up for counsel’s absence.
For all of these reasons, we reject the Killpatrick-Kramer rule. We
therefore need not address the standard of prejudice for its violation.
2

Accordingly, we conclude that we should affirm the judgment of the Court
of Appeal.
I
The People charged defendant Mark Barnum, an inmate at High Desert
State Prison in Lassen County, with battery on a noninmate (Pen. Code, § 4501.5)
and obstruction of an executive officer (id., § 69). The People further alleged that
defendant had suffered four prior felony convictions for second degree robbery
(id., §§ 211, 212.5), thus triggering possible punishment under the “Three Strikes”
law (id., § 667, subds. (b)–(i); see id., §§ 667.5, subd. (c), 1192.7, subd. (c)).
Because the trial court found defendant indigent, it appointed counsel. Defendant
pleaded not guilty to the charges and denied the allegations.
During jury selection, defendant made a motion, pursuant to People v.
Marsden (1970) 2 Cal.3d 118, asking the trial court to relieve appointed counsel
and to substitute other counsel. After a hearing in chambers, the trial court denied
defendant’s motion. Relying in effect on Faretta, defendant then made a motion
seeking to represent himself. During the pendency of his Faretta motion,
defendant renewed his Marsden motion. After a hearing in chambers, the trial
court denied defendant’s renewed Marsden motion. Then, after a hearing in open
court, and in spite of its “high suspicion” that defendant’s “effort in this case ha[d]
been solely to delay and to obstruct this trial,” the trial court granted defendant’s
Faretta motion, having determined that he knowingly, intelligently, and
voluntarily chose to forgo the assistance of counsel. Making plain the dangers and
disadvantages of self-representation, the trial court warned defendant that it was
“not going to be able to assist [him] or advise [him] on matters of law, evidence,
or trial practice.” Defendant acknowledged the trial court’s warning, responding,
“That is true,” and nevertheless chose to continue to seek to represent himself.
3
The trial court relieved appointed counsel, whom it then appointed as standby
counsel.
According to the evidence presented by the People in their case-in-chief,
the events that led to the charges in this case developed as follows: After dinner
on July 19, 1997, Correctional Officers John Cartier and Richard Eubanks decided
to search the cell shared by defendant and John Hendricks in one of the buildings
at High Desert State Prison. Cartier and Eubanks recently had been assigned to
the building, and had determined to put matters in order following what they took
to be the somewhat lax procedures of their predecessors. Because defendant had a
reputation as a hothead, Cartier and Eubanks called Correctional Officer Lorenzo
Abella from another building to provide assistance if needed. Cartier and Eubanks
removed defendant and Hendricks from their cell. Words were exchanged about
Cartier’s and Eubanks’s handling of defendant’s and Hendricks’s property. As
Cartier and Abella attempted to escort defendant and Hendricks to an area where
they could be secured for the duration of the cell search, defendant confronted
Cartier, Cartier placed his hand on defendant’s chest to keep him at bay, defendant
slapped Cartier’s hand away, a fight ensued between Cartier and defendant with
Abella and Hendricks joining in, and order quickly was restored as Eubanks
incapacitated defendant and Hendricks with pepper spray.
In his defense, defendant presented a different version of the encounter and
of the events leading up to it. Defendant testified on his own behalf, without
advisement by the trial court of his privilege against compelled self-incrimination.
In direct examination in the form of narrative, defendant described an incident at
dinner on the day in question: Along with other inmates, defendant and Hendricks
were engaged in a discussion about the late rap music artist Tupac Shakur. Cartier
interjected that Shakur was “six feet deep” where he belonged, and Hendricks
replied that John Wayne was “six feet deep” where he belonged. Not long
4
thereafter, as Eubanks and Abella attempted to bring dinner to an end and met
with resistance, Eubanks said, “We’ll be up . . . to your cell. We will see how
tough you are.” When Cartier and Eubanks arrived, Cartier confronted defendant
and pushed him hard, and defendant responded in self-defense. On cross-
examination, the prosecutor sought to impeach defendant by probing into the
events in question and by obtaining an admission that he had suffered the four
prior felony convictions alleged against him. Defendant also called a number of
inmates whose testimony largely supported his, including Hendricks, who had
pleaded guilty to similar charges arising out of the same events. In addition,
defendant called Sergeant Richard Berry, who testified that Cartier, Eubanks, and
Abella failed to follow proper procedures in conducting the cell search.
In rebuttal, the People called defendant as a witness, again without
advisement by the trial court of his privilege against compelled self-incrimination,
and defendant took the stand. The prosecutor sought to impeach defendant by
probing into prior incidents involving correctional officers at another prison. In
narrative form, defendant gave his own version of what had happened in the
course of those incidents.
After deliberations, the jury returned verdicts finding defendant guilty of
battery on a noninmate and obstruction of an executive officer, and made findings
that he had suffered four prior felony convictions. In doing so, however, the jury
delivered the following note: “We, the Jury, believe that [defendant] is guilty on
both counts. However, we also believe that the events were precipated [sic] by
improper handling of preceeding [sic] events and could have been prevented by
the following of proper established protocols.”
After reappointing counsel with defendant’s consent, the trial court
rendered judgment in accordance with the jury’s verdicts and findings. Under the
Three Strikes law, defendant was sentenced to a term of imprisonment of 25 years
5
to life on the charge of battery on a noninmate. Defendant received the same
sentence on the charge of obstruction of an executive officer, but execution of the
sentence was stayed pending successful completion of the sentence on the battery
charge, the stay to become permanent thereafter (Pen. Code, § 654).
The Court of Appeal affirmed. It rejected the Killpatrick-Kramer rule,
reasoning that it was not well founded and, in any event, no longer was viable
after Faretta. It found that defendant had testified freely in his own defense and
had taken the stand when called by the People in their rebuttal. Finally, it
concluded that any violation of the Killpatrick-Kramer rule in this case did not
require reversal, but was harmless beyond a reasonable doubt.
We granted defendant’s petition for review. In doing so, we limited the
issues to whether the Killpatrick-Kramer rule is valid and, if so, what standard of
prejudice applies when it is violated. Because, as we shall explain, we reject the
Killpatrick-Kramer rule, we need not consider the standard of prejudice.
II
The
Killpatrick-Kramer rule requires a trial court to advise a self-
represented defendant of the privilege against compelled self-incrimination before
he or she is called by the People as a witness in their case-in-chief or testifies in
his or her own defense.
In
Killpatrick, the Court of Appeal, on certiorari in a consolidated
proceeding, annulled certain judgments of the trial court adjudging each of the
defendants guilty of contempt of court for willfully failing to comply with a prior
order for the support of his respective former wife and children. In each case, the
defendant represented himself because he did not have counsel. The People called
the defendant as a witness in their case-in-chief (Killpatrick, supra, 153
Cal.App.2d at p. 148), and the trial court “requir[ed]” the defendant to comply (id.
6
at p. 150). Both the prosecutor and the trial court proceeded to question the
defendant. At no time did the trial court advise the defendant of his privilege
against compelled self-incrimination. The Court of Appeal held that the trial
court’s omission was error, and that the error was reversible.
In
Kramer, the Court of Appeal reversed a judgment of the trial court
convicting the defendant of forgery. The defendant represented himself out of
choice. After the People presented their case-in-chief, the trial court invited the
defendant to testify in his own defense if he wished, but did not advise him of his
privilege against compelled self-incrimination. (Kramer, supra, 227 Cal.App.2d
at pp. 200–201.) Following Killpatrick, the Court of Appeal held that the trial
court’s omission was erroneous and mandated reversal of the defendant’s
conviction.
Originally,
the
Killpatrick-Kramer rule was based mainly in the privilege
against compelled self-incrimination under what are now section 15 of article I of
the California Constitution and section 930 of the Evidence Code. (See
Killpatrick, supra, 153 Cal.App.2d at p. 148; Kramer, supra, 227 Cal.App.2d at
p. 200.) Soon the rule was expanded to reach the analogous privilege under the
Fifth Amendment to the United States Constitution. (See People v. Glaser (1965)
238 Cal.App.2d 819, 828–829.) This expansion of the rule coincided with the
decision in Malloy v. Hogan (1964) 378 U.S. 1, 3, 6, in which the United States
Supreme Court held that the privilege under the Fifth Amendment was applicable
to the states through the due process clause of the Fourteenth Amendment.
The
Killpatrick-Kramer rule, of course, does not itself embody the privilege
against compelled self-incrimination; rather, in purpose and effect it is a
prophylactic measure. (See People v. Glaser, supra, 238 Cal.App.2d at p. 831;
see generally Killpatrick, supra, 153 Cal.App.2d at pp. 149–150; Kramer, supra,
227 Cal.App.2d at pp. 201–203.) It is a judge-made “rule of procedure which
7
requires notice to [a self-represented] defendant so as to protect and implement”
the privilege. (People v. Glaser, supra, 238 Cal.App.2d at p. 831.)
The
Killpatrick-Kramer rule thus finds its rationale in protection, based on
a recognition that a self-represented defendant, unlike a defendant represented by
counsel, does not have counsel available to protect his or her privilege against
compelled self-incrimination. The Killpatrick-Kramer rule places the
responsibility upon the trial court to provide such protection by requiring the court
to give an advisement of the privilege. In this regard, the court in Killpatrick
reasoned: “The privilege cannot be made truly effective unless the defendant in a
criminal case who is not represented by counsel is advised by the court of the
existence of the privilege whenever such advice appears to be necessary.
[Citations.] . . . ‘When a defendant goes to trial upon a charge of a criminal nature
without the benefit of counsel, it is the duty of the court to be alert to protect the
defendant’s rights. . . .’ ” (Killpatrick, supra, 153 Cal.App.2d at pp. 149–150;
accord, Kramer, supra, 227 Cal.App.2d at pp. 202–203.) “It is axiomatic that a
person may waive the privilege against self-incrimination. But any such waiver
‘must be informed and intelligent. There can be no waiver if the defendants do
not know their rights.’ ” (Killpatrick, supra, 153 Cal.App.2d at p. 150; accord,
Kramer, supra, 227 Cal.App.2d at p. 202.) “ ‘The defendant may not be called to
the stand in a criminal case unless he waives his privilege. He cannot be charged
with a waiver of the privilege unless it appears that he was aware of its existence
and its surrounding safeguards and voluntarily and intelligently elected to refrain
from asserting it.’ ” (Killpatrick, supra, 153 Cal.App.2d at p. 150; accord,
Kramer, supra, 227 Cal.App.2d at p. 203.)
8

In numerous decisions, over a period of almost 30 years, lower courts in
California have adhered to, or at least have not departed from, the Killpatrick-
Kramer rule.1 Even though it has been described as “well-established” (People v.
Jones, supra, 2 Cal.App.4th at p. 872; accord, People v. Torres, supra, 133
Cal.App.3d at p. 280) and “settled” (People v. Doane, supra, 200 Cal.App.3d at
p. 866) in California, the Killpatrick-Kramer rule does not have any counterpart in
the federal courts or in the courts of about 45 of our 49 sister states. (See
generally Annot., Duty of Court to Inform Accused Who is Not Represented by
Counsel of His Right Not to Testify (1961) 79 A.L.R.2d 643, 643–646 and later
cases (2000 supp.) pp. 182–185, and later case service (2002 supp.) p. 4 [listing no
more than four other states with a similar rule]; see also 3 LaFave et al., Criminal
Procedure (2d ed. 1999) § 11(e), p. 586, fn. 77; Annot., Accused’s Right to
Represent Himself in State Criminal Proceeding — Modern State Cases (1980) 98
A.L.R.3d 13, 83–85, § 21; cf. 8 Wigmore, Evidence (McNaughton ed. 1961)
§ 2269, p. 413 [criticizing any “technical rule” requiring trial courts to advise

1 See
People v. Jones (1992) 2 Cal.App.4th 867, 872–874; People v. Doane
(1988) 200 Cal.App.3d 852, 866–868; People v. Torres (1982) 133 Cal.App.3d
265, 280–281; People v. Longwith (1981) 125 Cal.App.3d 400, 412–413; People v.
Cundle
(1979) 98 Cal.App.3d Supp. 34, 35–37; People v. Jackson (1978) 88
Cal.App.3d 490, 497–498; People v. Cervantes (1978) 87 Cal.App.3d 281, 284,
288–289; People v. Solomos (1978) 83 Cal.App.3d 945, 952–955; People v. Wells
(1968) 261 Cal.App.2d 468, 480–482; People v. Glaser, supra, 238 Cal.App.2d at
pages 828–829 & 831; see also People v. Pretzer (1992) 9 Cal.App.4th 1078,
1085, disapproved on another point by People v. Anzalone (1999) 19 Cal.4th
1074, 1083; People v. Vargas (1987) 195 Cal.App.3d 1385, 1391–1392; People v.
Owens
(1977) 66 Cal.App.3d 720, 722–724; People v. Thomas (1974) 43
Cal.App.3d 862, 866–868; People v. Barker (1965) 232 Cal.App.2d 178, 182; see
generally 5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal
Trial, section 259, page 401; California Judges Benchbook: Criminal Proceedings
(CJER 1991) Criminal Pretrial Proceedings, section 1.45, page 48; id., (1999
supp.) section 1.45, page 131.
9


witnesses of the privilege against compelled self-incrimination]; but cf. People v.
Berry (1991) 230 Cal.App.3d 1449, 1453 [supporting such a rule in dictum].)
Indeed, in Powers v. United States (1912) 223 U.S. 303 (Powers), the United
States Supreme Court implied that a trial court is not required to advise a self-
represented defendant of the privilege against compelled self-incrimination under
the Fifth Amendment, at least not before such a defendant testifies in his or her
own defense. (See Powers at p. 313 [speaking in the context of a preliminary
hearing].) Hence, although not unique to this state, the Killpatrick-Kramer rule
has little support elsewhere.
In People v. Redmond (1969) 71 Cal.2d 745 (Redmond), we acknowledged
the existence of the Killpatrick-Kramer rule as an exception (Redmond, supra, 71
Cal.2d at p. 758, fn. 3) to the general rule that “the judge ordinarily is not required
to assist or advise” a “defendant who chooses to represent himself” “on matters of
law, evidence or trial practice” (id. at p. 758), but neither in Redmond nor in any
other decision prior to the present one have we had the occasion to pass upon the
validity of the Killpatrick-Kramer rule.
The Court of Appeal below rejected the Killpatrick-Kramer rule. It
reasoned that the rule was not well founded, and in any event was not viable after
Faretta. We shall consider each point in turn, beginning with Faretta.
We do not believe that the Killpatrick-Kramer rule has been undermined by
Faretta.
To be sure, Faretta does not require a trial court to treat a self-represented
defendant differently from a defendant represented by counsel but, quite to the
contrary, allows similar treatment. Specifically, Faretta holds that, under the
Sixth Amendment, a defendant has a right to the assistance of counsel and also a
right to represent himself or herself, and may do so after knowingly, intelligently,
and voluntarily choosing to forgo the assistance of counsel. (Faretta, supra, 422
10
U.S. at pp. 812–835.) The trial court must make a defendant seeking to represent
himself or herself “aware of the dangers and disadvantages of self-representation”
(Faretta, supra, 422 U.S. at p. 835), which include the circumstance that such a
defendant cannot rely upon the trial court to provide “personal instruction . . . on
courtroom procedure” or “to take over chores . . . that would normally be attended
to by trained counsel as a matter of course” (McKaskle v. Wiggins (1984) 465 U.S.
168, 183–184). A defendant who thus chooses self-representation necessarily
forgoes counsel’s assistance together with the protection that counsel might have
provided (see Faretta, supra, 422 U.S. at p. 835), which extends to advisement of
the privilege against compelled self-incrimination (see, e.g., 3 Wharton’s Criminal
Procedure (13th ed. 1991) § 350, p. 118 [discussing the privilege under the Fifth
Amendment]; People v. Vargas, supra, 195 Cal.App.3d at pp. 1391–1392 [same];
People v. Longwith, supra, 125 Cal.App.3d at p. 412 [same]; People v. Thomas,
supra, 43 Cal.App.3d at p. 867 [same]; State v. Bogus (1988) 223 N.J.Super. 409,
425–426 [same, collecting cases]). Nevertheless, the defendant’s choice of self-
representation “must be honored out of ‘that respect for the individual which is the
lifeblood of the law.’ ” (Faretta, supra, 422 U.S. at p. 834.)
Although
Faretta does not require a trial court to advise a self-represented
defendant of the privilege against compelled self-incrimination, neither does it
prohibit such an advisement. Whereas Faretta is based on the federal Constitution
alone, the Killpatrick-Kramer rule largely arises out of state law. The Court of
Appeal termed the Killpatrick-Kramer rule “paternalistic . . . and, hence, anti-
Faretta.” We think that this comment reads into Faretta what is not there.
Faretta allows a defendant to stand unprotected by counsel, but does not bar
assistance from the trial court. The Court of Appeal recognized as much,
conceding that its rejection of the Killpatrick-Kramer rule did not “preclude a trial
court from offering assistance . . . .”
11

Even though the Killpatrick-Kramer rule is not undermined by Faretta, we
nonetheless believe that the rule, viewed on its own merits, is unsound. As we
declared in Redmond, it is a principle deeply rooted in the law that a “defendant
who chooses to represent himself assumes the responsibilities inherent in the role
which he has undertaken,” and “is not entitled to special privileges not given an
attorney . . . .” (Redmond, supra, 71 Cal.2d at p. 758; accord, People v. Smith
(1985) 38 Cal.3d 945, 957; see, e.g., People v. Jenkins (2000) 22 Cal.4th 900,
1039; People v. Noah (1971) 5 Cal.3d 469, 479; People v. Williams (1970) 2
Cal.3d 894, 909–910; People v. Robinson (1965) 62 Cal.2d 889, 894; People v.
Ashley (1963) 59 Cal.2d 339, 364; People v. Mattson (1959) 51 Cal.2d 777, 794;
People v. Chessman (1951) 38 Cal.2d 166, 174, disapproved on another point by
People v. Daniels (1969) 71 Cal.2d 1119, 1139; People v. Northcott (1930) 209
Cal. 639, 648–651; see generally 5 Witkin & Epstein, Cal. Criminal Law, supra,
Criminal Trial, § 259, pp. 399-400.)
It is from this principle that the general rule we spoke of in Redmond
emerged, namely that “the judge ordinarily is not required to assist or advise” a
“defendant who chooses to represent himself” “on matters of law, evidence or trial
practice.” (Redmond, supra, 71 Cal.2d at p. 758; accord, People v. Smith, supra,
38 Cal.3d at p. 957; see generally 5 Witkin & Epstein, Cal. Criminal Law, supra,
Criminal Trial, § 260, p. 401.)
Any attempt to justify the Killpatrick-Kramer rule  by a broad assertion
that a self-represented defendant needs the trial court’s protection  would falter
on the principle stated above, which allows such a defendant to act on his or her
own, but also requires such a defendant to act at his or her peril. In all but the
most unusual cases, a self-represented defendant, who necessarily is without
counsel’s protection, could benefit by receiving protection from whatever source
he or she might obtain it. But under the general rule we have cited, “the judge
12
ordinarily is not required to assist or advise [such a defendant] on matters of law,
evidence or trial practice.” (Redmond, supra, 71 Cal.2d at p. 758.)
Thus, any justification for the Killpatrick-Kramer rule evidently must arise
from the privilege against compelled self-incrimination itself and from any
mandate contained therein requiring the trial court to protect a self-represented
defendant.
Neither Killpatrick nor Kramer, nor any of their progeny, explains why the
privilege against compelled self-incrimination, alone among the rights enjoyed by
a self-represented defendant, mandates protection by the trial court. Nor do we
find an adequate explanation from any other source.
We recognize that the privilege against compelled self-incrimination has
been viewed as “fundamental.” (E.g., United States v. Verdugo-Urquidez (1990)
494 U.S. 259, 264 [speaking of the privilege under the Fifth Amendment];
People v. Rizer (1971) 5 Cal.3d 35, 37 [same]; see People v. Edwards (1991) 54
Cal.3d 787, 809 [speaking of the privilege generally].) But other rights have been
so ranked as well. The right to compulsory process is a “fundamental” right. (In
re Martin (1987) 44 Cal.3d 1, 29–30 [speaking of the right under both the Sixth
and Fourteenth Amendments to the United States Constitution, and article I,
section 15 of the California Constitution]; Washington v. Texas (1967) 388 U.S.
14, 19 [speaking of the right under the Sixth and Fourteenth Amendments only].)
Another “fundamental” right is the right of confrontation. (Pointer v. Texas
(1965) 380 U.S. 400, 405 [speaking of the right under the Sixth and Fourteenth
Amendments]; Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1137 [same].)
Yet another “fundamental” right — and perhaps the most significant one for
present purposes — is the right to testify. (Rock v. Arkansas (1987) 483 U.S. 44,
49–53 [speaking of the right under the Fourteenth Amendment’s due process
clause, the Sixth Amendment’s compulsory process clause, and the Fifth
13
Amendment’s privilege against compelled self-incrimination]; People v. Webb
(1993) 6 Cal.4th 494, 534–535 [speaking generally of the right to testify];
People v. Guzman (1988) 45 Cal.3d 915, 962, overruled on another point, Price v.
Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [same].)
No requirement has been imposed on the trial court to advise a self-
represented defendant of any of these fundamental rights. Indeed, as stated above,
in Powers, the United States Supreme Court implied that a trial court is not
required to advise a self-represented defendant of the privilege against compelled
self-incrimination insofar as it is based on the Fifth Amendment, at least not
before such a defendant testifies in his or her own defense. Moreover, in People v.
Jones, supra, 2 Cal.App.4th 867, 873, the Court of Appeal held, in our view
correctly, that a trial court is not required to advise a self-represented defendant of
the right to testify  a right that is the mirror image of the privilege against
compelled self-incrimination and accordingly is of equal dignity. (See 5 Witkin &
Epstein, Cal. Criminal Law, supra, Criminal Trial, § 260, p. 401.) If such a
defendant may be allowed to exercise, or not to exercise, the right to testify,
without advisement by the trial court, he or she likewise may be allowed to do the
same with respect to the privilege against compelled self-incrimination.
One further aspect of the rationale for the Killpatrick-Kramer rule merits
discussion. This rule is premised on the assumption that, because a right like the
privilege against compelled self-incrimination may be lost only by waiver, and
because a waiver is effective only if it is knowing, intelligent, and voluntary, the
effectiveness of a waiver is ensured only if the trial court gives an advisement of
what is to be relinquished.
We do not find this assumption sufficient to support the Killpatrick-Kramer
rule. First, by its terms, the assumption applies to any right, and hence does not
explain why the privilege against compelled self-incrimination, alone among the
14
rights afforded a self-represented defendant, should be singled out for differential
treatment. Second, a defendant who chooses to represent himself or herself after
knowingly, intelligently, and voluntarily forgoing the assistance of counsel
assumes the risk of his or her own ignorance, and cannot rely upon the trial court
to make up for counsel’s absence. Third and finally, a right may be lost not only
by waiver but also by forfeiture, that is, the failure to assert the right in timely
fashion. (Yakus v. United States (1944) 321 U.S. 414, 444 [stating that “[n]o
procedural principle is more familiar . . . than that a . . . right,” even a
“constitutional right,” “may be forfeited”]; accord, United States v. Olano (1993)
507 U.S. 725, 731; People v. Collins (2001) 26 Cal.4th 297, 305, fn. 2; People v.
Simon (2001) 25 Cal.4th 1082, 1097, fn. 9.) As abundant authority attests, the
rights subject to forfeiture as well as waiver include the privilege against
compelled self-incrimination (see Brown v. United States (1958) 356 U.S. 148,
155–156 [speaking of the privilege under the Fifth Amendment]; People v.
Hendricks (1987) 43 Cal.3d 584, 592–594 [same]; People v. Ing (1967) 65 Cal.2d
603, 610–611 [speaking of the privilege under what is now section 15 of article I
of the California Constitution as well as the Fifth Amendment]; see generally
5 LaFave et al., Criminal Procedure, supra, § 24.5(a), pp. 529–532 [speaking of
the privilege under the Fifth Amendment]; 1 McCormick, Evidence (5th ed. 1999)
§§ 129, 134, pp. 486–490, 493–499 [same]) — and, most significantly here,
include the privilege against compelled self-incrimination of the self-represented
defendant (see Powers, supra, 223 U.S. at p. 313 [speaking of the privilege under
the Fifth Amendment before such a defendant testifies in his or her own defense in
the context of a preliminary hearing]).2

2
Defendant’s argument to the contrary is not persuasive. To support his
assertion that, at least insofar as it is based on the Fifth Amendment, the privilege
(footnote continued on next page)
15


Although the Killpatrick-Kramer rule is unsound, we acknowledge that it
has enjoyed widespread and longstanding following among the lower courts in
California, and that its retention therefore is supported by the policy favoring
stability in the law.
Against the policy of stability, however, we must recognize that the
Killpatrick-Kramer rule is not itself the privilege against compelled self-
incrimination. Instead, it merely is a judge-made, prophylactic rule of procedure.
We also must recognize that the Killpatrick-Kramer rule does not have any
counterpart in the federal courts or in the courts of the vast majority of our sister
states. Indeed, such a rule has been considered and rejected expressly in decisions
such as State v. Lo Sacco (1987) 12 Conn.App. 481, and State v. Poindexter
(1984) 69 N.C.App. 691. In Poindexter, the court stated that the privilege against
compelled self-incrimination “says no more than a person shall not be compelled

(footnote continued from previous page)
against compelled self-incrimination may not be forfeited, he relies upon the
privilege’s status as a fundamental right (United States v. Verdugo-Urquidez,
supra, 494 U.S. at p. 264). But in Peretz v. United States (1991) 501 U.S. 923, the
United States Supreme Court made clear that even a fundamental right, including
the privilege in question, may be forfeited. (Id. at pp. 936–937.) Peretz cites with
approval United States v. Coleman (9th Cir. 1983) 707 F.2d 374, a case in which
the United States Court of Appeals for the Ninth Circuit held the privilege to have
been forfeited by failure to object to certain statutory firearm registration
requirements that assertedly compelled self-incriminatory responses. It is true that
Peretz summarizes Coleman as holding that the “failure to object constitutes
waiver of” the privilege. (Peretz v. United States, supra, 501 U.S. at p. 936, italics
added.) But, manifestly, Peretz uses the term “waiver” loosely for “forfeiture.”
As noted, Peretz finds “waiver” in a mere “failure to object,” as opposed to a
knowing, intelligent, and voluntary relinquishment. (Ibid.) Moreover, Peretz adds
almost immediately that “ ‘[n]o procedural principle is more familiar . . . than that
a [federal] constitutional right may be forfeited . . . .’ ” (Id. at p. 936, quoting
Yakus v. United States, supra, 321 U.S. at p. 444, and adding italics.)
16


to speak. It does not place upon the trial court the duty of informing a pro se
defendant of his [or her] rights and privileges. In fact, . . . a defendant who
knowingly and intelligently elects to proceed pro se, ‘cannot expect the trial judge
to relinquish his [or her] role as impartial arbiter in exchange for the dual capacity
of judge and guardian angel of defendant.’. . . [A] defendant who chooses to
proceed pro se ‘does so at his [or her] peril and acquires as a matter of right no
greater privilege or latitude than would an attorney acting for him [or her].’ ”
(State v. Poindexter, supra, 69 N.C.App. at p. 694, italics in original [speaking of
the privilege under the Fifth Amendment].) The court in Lo Sacco, although
opining that “it is sound judicial practice to advise a pro se defendant” of the
privilege, likewise expressed its “unwilling[ness] to impose upon the trial court the
burden of” giving such an advisement. (State v. Lo Sacco, supra, 12 Conn.App. at
p. 492.)
For all of these reasons, we conclude that the Killpatrick-Kramer rule is
invalid, and hereby reject it.
Because adherence to the Killpatrick-Kramer rule has been widespread
among the lower courts and longstanding, however, the question arises whether
we should apply our holding to the present case and to any other case not yet final
on appeal or review. We conclude that we should do so. As we have explained,
since Faretta trial courts have been required to make defendants seeking to
represent themselves aware of the dangers and disadvantages of self-
representation, which include the defendant’s inability to rely upon the trial court
to provide personal instruction on courtroom procedure or to provide the
assistance that otherwise would have been rendered by counsel. Thus, a defendant
who chooses to represent himself or herself after knowingly, intelligently, and
voluntarily forgoing the assistance of counsel assumes the risk of his or her own
ignorance, and cannot compel the trial court to make up for counsel’s absence.
17
Such a defendant therefore cannot reasonably expect the trial court to provide an
advisement of any right, including the privilege against compelled self-
incrimination.
Of course, in disapproving the Killpatrick-Kramer rule, we simply hold that
a trial court is not required to advise a self-represented defendant of the privilege
against compelled self-incrimination. In any given case, the court remains free to
provide such an advisement, so long as its words do not stray from neutrality
toward favoring any one option over another. A trial court of course must proceed
carefully in providing an advisement, but it may provide one if it deems it
appropriate. (See Redmond, supra, 71 Cal.2d at pp. 758–759.)
III
Turning now to the case at bar, we conclude that the Court of Appeal
properly affirmed the judgment of the trial court.
As we have explained in disapproving the Killpatrick-Kramer rule,
although the trial court was not precluded from advising defendant, who
represented himself, of his privilege against compelled self-incrimination before
he testified in his own defense or took the stand when called by the People in their
rebuttal, it nevertheless was not required to provide him with any such
advisement. Prior to granting defendant’s Faretta motion, the trial court warned
defendant that it was “not going to be able to assist [him] or advise [him] on
matters of law, evidence, or trial practice,” and defendant acknowledged the
warning, responding, “That is true.” As a result, defendant could not reasonably
have expected the trial court to advise him of any of his rights, including his
privilege against compelled self-incrimination.
Having noted the absence of any advisement by the trial court as to
defendant’s privilege against compelled self-incrimination, and the absence of any
18
indication that standby counsel may have offered such an advisement, the Court of
Appeal concluded that defendant acted freely both in testifying in his own defense
and in taking the stand when called by the People in their rebuttal.
After review of the record before us, we agree. Defendant made absolutely
no objection to testifying, and indeed betrayed not the least hesitation. We
therefore cannot find any compulsion, either in law or in fact, in his action.3

3
Clearly, by testifying in his own defense, defendant relinquished his
privilege against compelled self-incrimination with respect to cross-examination
on matters within the scope of the narrative testimony he provided on direct
examination, as well as on matters that impeached his credibility as a witness.
(People v. Stanfill (1986) 184 Cal.App.3d 577, 581; People v. James (1976) 56
Cal.App.3d 876, 887–888; see People v. Gallagher (1893) 100 Cal. 466, 475; see
also People v. Schader (1969) 71 Cal.2d 761, 771; see generally 2 Witkin, Cal.
Evidence (4th ed. 2000) Witnesses, § 428, p. 730.) That is true even though
defendant represented himself. (See Powers, supra, 223 U.S. at p. 314 [speaking
of the privilege under the Fifth Amendment in the context of a preliminary
hearing].) We are satisfied from our examination of the record that the
permissibly wide scope of cross-examination was not exceeded by the
prosecutor’s probing into the incident involving Correctional Officers Cartier,
Eubanks, and Abella at High Desert State Prison, or by the prosecutor’s obtaining
an admission that defendant had suffered four prior felony convictions.

It is true that the People called defendant as a witness in their rebuttal. But
in the People’s rebuttal, the prosecutor, in effect, merely subjected defendant to
reopened cross-examination (see Evid. Code, §§ 761, 778) or recross-examination
(see id., § 763; Cal. Law Revision Com. com, 29B pt. 2 West’s Ann. Evid. Code
(1995 ed.) foll. § 763, p. 53), doing little more than what he properly did on the
initial cross-examination of defendant in the course of the defense, which was to
impeach defendant’s credibility by probing into prior incidents involving
correctional officers at another prison. We recognize that a “defendant in a
criminal action . . . may not . . . be examined under direct examination by another
party” “without his [or her] consent.” (Evid. Code, § 772, subd. (d); see id., § 776,
subd. (a) [providing that “[a] party to the record of any civil action . . . may be
called and examined as if under cross-examination by any adverse party at any
time during the presentation of evidence by the party calling the witness” (italics
added)].) We find such consent implied, if not expressed, in this case.
19


Because we conclude that the trial court did not err in failing to advise
defendant of the privilege against compelled self-incrimination, we need not
consider whether any error would have required reversal.4
IV
For the reasons stated above, we affirm the judgment of the Court of
Appeal.
GEORGE, C. J.
WE CONCUR:

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.

4
The issues on which we granted review in this case do not include the
question whether a prosecutor would commit misconduct in violation of a
defendant’s privilege against compelled self-incrimination under the Fifth
Amendment by calling the defendant as a witness in the People’s case-in-chief. In
the present case, the prosecutor did not call defendant as a witness in the People’s
case-in-chief, but only in their rebuttal, and then only for what in effect was
reopened cross-examination or recross-examination (see, ante, at p. 19, fn. 3). We
therefore leave this question of potential prosecutorial misconduct to a case in
which it is presented. (See Patty v. Bordenkircher (6th Cir. 1979) 603 F.2d 587,
588–589 [holding that “where the prosecutor . . . call[s] a criminal defendant to the
stand in order to prove an element of the crime,” the prosecutor “violates the
[defendant’s] privilege against self-incrimination” under the Fifth Amendment].)
20


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Barnum
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 86 Cal.App.4th 731
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S095872
Date Filed: March 17, 2003
__________________________________________________________________________________

Court:

Superior
County: Lassen
Judge: Roy G. MacFarland*

__________________________________________________________________________________

Attorneys for Appellant:

Fern M. Laethem and Lynne S. Coffin, State Public Defenders, Jeffrey J. Gale, Acting State Public
Defender, under appointments by the Supreme Court, John Fresquez, Assistant State Public Defender,
Arnold Erickson, Alison Pease and David S. Adams, Deputy State Public Defenders, for Defendant and
Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys
General, Robert R. Anderson and Jo Graves, Assistant Attorneys General, Margaret Venturi, Michael A.
Canzoneri, David A. Eldridge and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and
Respondent.

*Judge of the Glenn Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
21

Counsel who argued in Supreme Court (not intended for publication with opinion):

David S. Adams
Deputy State Public Defender
801 K Street, Suite 1100
Sacramento, CA 95814
(916) 322-2676

Clifford E. Zall
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 342-5281

22


Opinion Information
Date:Docket Number:
Mon, 03/17/2003S095872

Parties
1The People (Plaintiff and Respondent)
Represented by Clifford E. Zall
Office of the Attorney General
1300 "I" Street, 11th Floor
Sacramento, CA

2Barnum, Mark (Defendant and Appellant)
Represented by David S. Adams
Office of the State Public Defender
801 "K" Street, Suite 1100
Sacramento, CA


Disposition
Mar 17 2003Opinion: Affirmed

Dockets
Mar 7 2001Petition for review filed
  by counsel for appellant Markk Barnum (filed in Sacramento)
Mar 9 2001Record requested
 
Mar 20 2001Second Record Request
 
Mar 21 2001Received Court of Appeal record
  1 doghouse (brown)
Apr 18 2001Petition for review granted; issues limited (criminal case)
  The issues to be briefed and argued shall be limited to whether the trial court is required to advise a pro per defendent of the privilege against self-incrimination before allowing the defendant to take the stand and, if so, what is the proper standard of prejudice if the defendant testifies without being given the advice. Votes: Werdegar A.C.J., Mosk, Kennard, Baxter & Chin JJ.
Apr 18 2001Note:
 
Apr 19 2001Second Record Request
  CA/3 (Anita) requesting additional record, i.e. reporters's transcripts and other documents. One additional doghouse forthcoming.
Apr 20 2001Received Court of Appeal record
  volume two
May 24 2001Counsel appointment order filed
  Office of the State Public Defender for appellant. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date of this oroder.
Jun 22 2001Application for Extension of Time filed
  Appellant Barnum's to file the opening brief/merits to and including 7/23/2001. (Received in Sacto 6/20/2001)
Jun 22 2001Extension of Time application Granted
  Appellant's Opening Brief on the Merits to and including July 9, 2001.
Jul 6 2001Application for Extension of Time filed
  by appellant Barnum for 30-day extension to 8/7/2001. Amended Request faxed. Hard copy received 7/9/2001.
Jul 10 2001Extension of Time application Granted
  Appellant's opening brief on the merits to and includindg 7/23/2001. No further extensions of time will be granted.
Jul 23 2001Opening brief on the merits filed
  By SPD
Aug 20 2001Application for Extension of Time filed
  by respondent for an additional 14 days, to and including 9/5/2001, to file the People's answer brief on the merits. [OK to 9/5/2001 - order prepared]
Aug 23 2001Extension of Time application Granted
  respondent to 9/5/2001 to file the answer brief on the merits
Sep 4 2001Answer brief on the merits filed
  Respondent's (People)
Sep 19 2001Application for Extension of Time filed
  by appellant for an additional eleven days to and including 10/1/2001 to file the reply brief on the merits. (filed in Sacto)
Sep 24 2001Extension of Time application Granted
  appellant Barnum to and including 10/1/2001 to serve and file the reply brief on the merits. No further extensions of time will be granted.
Oct 1 2001Reply brief filed (case fully briefed)
  by appellant Barnum (filed in Sacramento)
Nov 27 2002Case ordered on calendar
  1-7-03, 9am, S.F.
Jan 7 2003Cause argued and submitted
 
Mar 17 2003Opinion filed: Judgment affirmed in full
  Majority Opinion by George, C. J. -- joined by Kennard, Baxter, Werdegar, Chin, Brown & Moreno, JJ.
Apr 17 2003Remittitur issued (criminal case)
  Certified copies of the opinion and the remittitur were sent to the Third Appellate District
Apr 22 2003Received:
  Receipt for remittitur from CA/3, signed for by G. Emero, Deputy Clerk

Briefs
Jul 23 2001Opening brief on the merits filed
 
Sep 4 2001Answer brief on the merits filed
 
Oct 1 2001Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website