Plaintiff and Respondent,
RAYMOND OSCAR BUTLER,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. TA041759
This is the second death penalty appeal brought by defendant Raymond
Oscar Butler. In People v. Butler (2009) 46 Cal.4th 847 (Butler I), we affirmed
the conviction and sentence of death imposed on defendant for murdering two
college students. In this case, he was convicted of first degree murder and
sentenced to death for stabbing a fellow jail inmate. (Pen. Code, §§ 187, subd. (a)
& 190.2, subd. (a)(2).) Defendant contends he was denied his Sixth Amendment
right to represent himself at trial. (Faretta v. California (1975) 422 U.S. 806
(Faretta).) We agree. The trial court erroneously decided that defendant could
not adequately represent himself because of jail restrictions resulting from his
disciplinary infractions. Faretta and its progeny require reversal of the judgment
in its entirety.
The jailhouse murder occurred on March 26, 1995, while defendant was
awaiting trial for the Butler I murders. We need not detail the circumstances of
the stabbing; they were introduced at the penalty phase in Butler I and are set out
in 46 Cal.4th at pages 852-853. Here, we discuss only the facts relevant to
defendant‟s Faretta claim.
Defendant was represented by counsel in Butler I. In the present case,
however, he sought to represent himself early on, before special circumstance
allegations were added to the complaint. In December 1995, defendant filed a
handwritten Faretta motion asserting his “unconditional constitutional right to
represent himself without counsel.” Defense counsel filed a supporting
declaration, explaining that he was defendant‟s attorney in Butler I and had agreed
with the county to represent him in this second prosecution for no additional fee.
Because the jail stabbing would be the primary evidence at a penalty phase in
Butler I, counsel would be preparing to address the incident. He was willing to
serve as advisory or standby counsel, and could take over the defense should
defendant not continue in propria persona (hereafter, “pro. per.”).
The prosecutor responded that defendant might be seeking self-
representation to gain pro. per. jail privileges, or for purposes of manipulation and
delay. However, she added that “[w]hatever the defendant‟s reasons for
requesting pro per status, an otherwise appropriate request to proceed in propria
persona must be granted.” The trial court granted defendant‟s motion on
December 12, 1995.
On January 2, 1996, the county filed a motion to restrict defendant‟s “in
custody pro per privileges.” County counsel claimed that defendant was a
demonstrated security risk, with a long and escalating record of disciplinary
infractions: In April 1994, he was insubordinate and disrespectful toward a deputy
who was escorting him to his cell. In May 1994, he was found with a razor blade
modified for use as a weapon. In August 1994, he possessed an unauthorized
amount of cash. In September 1994, he tried to prevent his cell door from locking,
was found with contraband razor blades, was insubordinate to staff, and caused a
disturbance. In March 1995, he participated in the stabbing for which he was
currently being prosecuted. In December 1995, he was again found with razor
blades, along with contraband cigarettes and a lighter.
County counsel explained that inmates in administrative segregation were
allowed to use the “Pro Per Law Library” in compatible, multiracial groups to
“prevent one group from establishing a power base” in the library. Defendant‟s
actions showed he was a threat to other inmates and a potential victim of
retaliation for the stabbing incident. The sheriff opposed giving him access to the
law library, which would bring him into contact with other inmates and staff. The
sheriff was, however, willing to provide legal forms and supplies, to staple
documents, and to approve a legal runner subject to security checks.
At a hearing on January 3, 1996, defendant objected that he had no books
and no opportunity to prepare a response to the county‟s motion. He was also
concerned about his telephone access. County counsel told the court that no
additional telephone privileges were granted to pro. per. inmates. The court
agreed to deny defendant access to the law library, but set a hearing for February
1, 1996, regarding other restrictions on his pro. per. privileges. On that date
defendant filed written opposition, arguing that terminating his privileges “would
stop progress and ultimately cause a[n] undue consumption of the court‟s time and
effort.” He claimed the violations cited by the sheriff were frivolous and did not
justify the restriction of his privileges under Wilson v. Superior Court (1978) 21
Cal.3d 816. Defendant said the only major infraction was the homicide, with
respect to which he intended to show that his actions, “if any at all were minor.”
At the hearing, defendant complained that he was being treated differently
from other pro. per. inmates with similar disciplinary records. He claimed the
county‟s concern that he might be a victim of retaliation was speculative, and said
he needed access to the library “because I do plan on representing myself all the
way to the end in this case.” County counsel denied that defendant had been
singled out, and contended that taking him to and from the library and allowing
him to be with other inmates in the library posed a “major security concern.” The
court granted the motion to restrict defendant‟s privileges and denied his request
for expanded telephone access. It noted that he had a legal runner and advisory
On July 30, 1996, the prosecutor informed the court that defendant had
been sentenced to death in Butler I. The court granted her motion to amend the
complaint to include the murder convictions in that case as special circumstances.
Defendant‟s advisory counsel reported that his client was being denied “all pro per
privileges of any kind whatsoever,” and had been told by the deputies in jail that
“he is no longer pro per.” Counsel requested and received a minute order
confirming defendant‟s pro. per. status.
On October 29, 1996, defendant appeared for a hearing before a new judge,
who handled the remaining pretrial proceedings and the trial itself. Defendant
complained that he was “receiving no pro per privileges at all.” At the next
hearing, on November 15, the court itself raised the subject of defendant‟s self-
representation, warning defendant and a codefendant who was also representing
himself that “I want to resolve this [Faretta] issue . . . . You guys are common-
sense people, you have been around. It is pretty obvious with this type of situation
that pro per status is probably going to be revoked. It makes sense to me, it makes
sense to you.”
The court took up the matter on December 10, 1996, telling defendant,
“This is nothing personal, Mr. Butler. Understand? You have always treated me
with respect. But I have a great concern, based on the fact you already have a
sentence of death and this case is predicated, I believe, on the allegation that a
person in custody was shanked . . . . That, in itself, puts the court in concern not
only for your safety and retaliation, but concern for other prisoners and deputies.
Does that make sense to you?” Defendant said yes, but also affirmed that he
wanted to keep representing himself.
The court asked to hear from the prosecutor about other incidents involving
defendant. The prosecutor reported the following infractions in addition to those
outlined in the county‟s January 1996 motion: In October 1995, defendant was
found with razor blades yet again. In February 1996, he “slipped his cuffs and
assaulted an inmate in line.” In June 1996, he was found with tar heroin. In
October 1996, he and another inmate were discovered “making drugs,” and he also
had a large container of jail-made alcohol. Most significantly, in October 1996, as
he was preparing to come to court, a jail deputy saw him insert something into his
rectum, which turned out to be a four-inch-long piece of sharpened metal known
in jail vernacular as a “shank” or “shiv.” The prosecutor had reports on these
incidents, but had not yet provided them to the court. Defendant insisted that
“most of [these reports] are not true.” When questioned by the court, he said he
knew of no one seeking retaliation against him. He denied being in a gang since
he had been in custody, but admitted he had been in one previously.
The prosecutor argued that defendant was particularly dangerous because
he had been sentenced to death, and “basically . . . has nothing to lose.” She
summarized the alleged facts of the jail stabbing. Defendant, his two co-
defendants, and the victim were being taken to the showers. One codefendant
emerged from his cell unhandcuffed, and unlocked defendant‟s cuffs. He and
defendant then took turns stabbing the victim in the chest with a shank. The other
codefendant remained handcuffed, but assisted by preventing the victim‟s escape.
The prosecutor called a deputy to the stand, who verified defendant‟s disciplinary
reports and said he was a “very high security risk inmate” based on his continuing
infractions in jail and the death sentence he had already suffered. He could not be
allowed in the law library. The 20 to 25 high-security inmates then representing
themselves were assigned to compatible groups for trips to the law library.
However, inmates like defendant posed too severe a risk to be placed in any group.
The court observed that defendant had “always been courteous to this
court,” and asked about the witness‟s experience with defendant. The deputy said
he had only limited contact with defendant, but that defendant‟s record spoke for
itself. Defendant declined to respond to the prosecutor‟s showing. The court
made the following observations and ruling:
“Mr. Butler, the court asked for the hearing based on the charge here. As I
said, you treat us with respect. I think it‟s inappropriate for this court to allow you
to remain in pro per status based on at least ten incidents, most of them involving
some type of violence or a weapon in the jail. The most current is where you had
a shiv in your rectum. The case that you [have] pending now is a case
. . . regarding a fellow inmate with the allegation that you and two other persons
were involved in the death by shanking, and the fact [that] you have been found
guilty and [are] facing a capital death sentence . . . . Would you agree that some of
those are pretty egregious? I think for your benefit and the safety of the deputies
that I will revoke the pro per status from you. Do you understand?” Defendant
said, “Yes, your honor.” The court added, “Okay. This is, I think, a good
precaution for everybody and to protect you as well.”
The court then heard defendant‟s motion to replace his counsel. (People v.
Marsden (1970) 2 Cal.3d 118.) Defendant claimed that counsel, while serving in
his advisory status, had failed to confer with him or otherwise assist in preparing a
defense. The court denied the motion and reappointed counsel.
The next hearing was six weeks later, in January 1997. The prosecutor told
the court she was concerned that defendant had not been given notice of the new
incident reports she introduced at the hearing in December. She asked that he be
given the opportunity to revisit the revocation of his pro. per. status and contest
that evidence. The court said, “I have no objection. Mr. Butler and I have spoken
before on the record here. I have nothing against you at all. You have a
competent lawyer. You have been given the death penalty; it is on appeal. To
proceed on a death penalty case without counsel to me just doesn‟t make sense.
The court had a full hearing. What she is saying is you probably didn‟t have
proper notice. . . . If you want to revisit that and bring some witnesses in, I will do
that for you. But I think you have a competent lawyer. It is up to you to make a
Defendant said he “would like to be able to bring witnesses in and dispute
that.” A hearing was held on April 9, 1997. Acting as his own counsel, defendant
called a witness but then hesitated to ask questions that might incriminate himself.
The court told him that was always a danger of self-representation, and that
questioning witnesses was particularly risky in cases with multiple defendants,
like this one. Ultimately, after consulting with his advisory counsel, defendant
decided to ask no questions and submitted the matter for a ruling. The court said,
“for the record, Mr. Butler, . . . all of the defendants have been straight with this
court. I have not had any problems with any of you. It wasn‟t based on anything
you have done in my court with my bailiffs.” However, defendant‟s misconduct
in jail put “the court staff, the other defendants and yourself in some form of
jeopardy.” Noting the absence of any new evidence, the court reaffirmed the
revocation of defendant‟s pro. per. status.
Defendant filed a renewed Faretta motion on September 16, 1997. At a
hearing on September 22, he adamantly asserted his right to self-representation,
telling the court, “it is my constitutional right and I would like to invoke it. I mean
I feel I can put more time and effort into it than [counsel].” The court told him,
“Here is the problem: the sheriff has the absolute right to shut down any pro per
privileges that you have in jail. Understand? Based on your record of incidents,
that is what will happen, I am sure. They will not let you go anywhere, so you
will be restricted [to] going from the jail to here. While you are here, even if you
are in pro per, we will use the react belt plus we will use probably some other
things. You can‟t walk around the courtroom; you won‟t be able to move. I don‟t
know what privileges, if any, you will have at the county jail. Understand?”
Defendant replied in the affirmative. When pressed by the court as to how he
could be better prepared than his lawyer, he said, “I‟ve got 24 hours a day, seven
days a week, to work on this case.”
Defendant was unswayed by the court‟s repeated warnings about the
restrictions on his ability to prepare a defense. He claimed he could work in his
cell, and said “we will have to work something out” to get him the resources he
would need. The court acknowledged that defendant had the right to represent
himself, but said, “I also have another obligation to see whether or not you have a
fair trial. If you are in pro per and you have no access to the law library, you can‟t
interview anybody, then you go right [from] there to here, how do you think you
will be prepared?” Defendant said, “I have never once broke any of the policies as
a pro per, so I don‟t know why I would be . . . under the disadvantage of not going
to the law library as the other pro pers.” The court again told defendant that the
sheriff was not going to give him the privileges he wanted. The court said, “I am
not concerned about the courtroom because we can handle you in the courtroom,”
but asked defendant to think about the effect his limited preparation would have
on the jurors who would hear the evidence “without an adequate lawyer.”
Defendant replied, “I understand, your honor, but I still feel that I can represent
myself in this trial.”
Defendant then requested “all items of discovery.” The court warned him
that it would not grant a continuance, and that he would have to be ready for trial
in about a month, on October 20. Defendant said he understood, but told the
court, “I am only asking the same as any attorney would have, to have all items of
discovery.” The court reiterated that “they may not give you any privileges” in
jail. Defendant replied, “I understand, your honor, but I have a constitutional right
and I would like to . . . go pro per.” The court acquiesced, granting the Faretta
motion. Defense counsel said he had “boxes and boxes of stuff.” The court
observed that the names of witnesses would have to be redacted before the
material was turned over to defendant.1 Counsel agreed to contact the sheriff to
learn how they would handle the discovery material.
On October 20, defendant informed the court that he had not yet received
his discovery items. The court asked counsel if he was “ready to go,” and counsel
said yes. The court asked defendant, “would you like to have this lawyer back? It
is up to you.” Defendant responded, “I don‟t understand the question.” When the
court repeated it, defendant said, “so there is no way that I can get the items I need
for trial?” The court replied, “you can‟t be ready for trial. When you went pro
per, that is part of the situation where you have to be ready to go. What are you
missing that you didn‟t get?” Defendant said he only had the material from the
guilt phase of the Butler I trial.
1 “If the defendant is acting as his or her own attorney, the court shall endeavor to
protect the address and telephone number of a victim or witness by providing for
contact only through a private investigator licensed by the Department of
Consumer Affairs and appointed by the court or by imposing other reasonable
restrictions, absent a showing of good cause as determined by the court.” (Pen.
Code, § 1054.2, subd. (b).)
Defense counsel disputed this. He claimed that defendant had all the
material relating to the jail stabbing, which was part of the Butler I penalty phase.
However, counsel also reported that the jail had told him “they couldn‟t give
[defendant] all the materials at one time, but that we could rotate stuff through.”
Counsel further acknowledged that he still had “many, many cardboard boxes and
thousands and thousands of pages of stuff which I‟m redacting page by page.”
Counsel did not describe the nature of the material he had yet to turn over.
Without further inquiry, the court revoked defendant‟s Faretta right for the second
time, with this statement: “It is not unique to your client. This is the pro per
problem. You have a pro per that is in for another case; and the jail is a jail, it is
not a law library. They restrict what you can do there. That is why it just doesn‟t
make sense to do that. In any event, I will just put you back on the case. You
have had some time to work on at least the guilt phase. You can take a look at that
and if we need to . . . we will take a short delay to look at the penalty phase. We
will not be starting that right away.”
Jury selection began a week later, on October 27, 1997. A jury was
empanelled on November 4, and trial started the following day. Defendant made
no further Faretta motion. The jury found him guilty of murder and returned a
verdict of death.
In Faretta, the United States Supreme Court declared that a defendant
“must be free personally to decide whether in his particular case counsel is to his
advantage,” even though “he may conduct his own defense ultimately to his own
detriment . . . .” (Faretta, supra, 422 U.S. at p. 834.) “The Sixth Amendment . . .
implies a right of self-representation.” (Id. at p. 821, italics omitted.) Thus, a state
may not “constitutionally hale a person into its criminal courts and there force a
lawyer upon him, even when he insists that he wants to conduct his own defense.”
(Id. at p. 807.)
The tension between the right of self-representation and the interest in
ensuring a fair trial was a matter of dispute in Faretta itself, and it persists to this
day.2 The rule announced by the Faretta majority, however, remains the law of
the land. (See Edwards, supra, __ U.S. at p. __ [128 S.Ct. at p. 2388].) This
court, of course, may not adopt an alternative view of what the Sixth Amendment
requires. (See People v. Blair, supra, 36 Cal.4th at p. 740; People v. Dent, supra,
30 Cal.4th at pp. 224-225 (conc. opn. of Chin, J.).)
“When „a motion to proceed pro se is timely interposed, a trial court must
permit a defendant to represent himself upon ascertaining that he has voluntarily
and intelligently elected to do so, irrespective of how unwise such a choice might
appear to be. Furthermore, the defendant‟s “technical legal knowledge” is
irrelevant to the court‟s assessment of the defendant‟s knowing exercise of the
right to defend himself.‟ (People v. Windham (1977) 19 Cal.3d 121, 128, quoting
Faretta, supra, 422 U.S. at p. 836.) Erroneous denial of a Faretta motion is
reversible per se. (McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8.)”
(People v. Dent, supra, 30 Cal.4th at p. 217.) The same standard applies to
2 See Faretta, supra, 422 U.S. at pages 839-840 (dis. opn. of Burger, J.); id. at
page 849 (dis. opn. of Blackmun, J.); Indiana v. Edwards (2008) __ U.S. __ [128
S.Ct. 2379, 2389] (Edwards) (dis. opn. of Scalia, J.); Martinez v. Court of Appeal
(1999) 528 U.S. 152, 161; People v. Blair (2005) 36 Cal.4th 686, 739-740; People
v. Dent (2003) 30 Cal.4th 213, 222-225 (conc. opn. of Chin, J.); United States v.
Farhad (9th Cir. 1999) 190 F.3d 1097, 1105-1109 (conc. opn. of Reinhardt, J.);
Decker, The Sixth Amendment Right to Shoot Oneself in the Foot: An Assessment
of the Guarantee of Self-Representation Twenty Years After Faretta (1996) 6 Seton
Hall Const. L.J. 483; but see Hashimoto, Defending the Right of Self-
Representation: An Empirical Look at the Pro Se Felony Defendant (2007) 85 N.
C. L. Rev. 423.
erroneous revocation of pro. per. status. (People v. Carson (2005) 35 Cal.4th 1,
11, fn. 1.)
There are limits on the right to act as one‟s own attorney. As the high
court recently observed, “Faretta itself and later cases have made clear that the
right of self-representation is not absolute.” (Edwards, supra, __ U.S. at p. __
[128 S.Ct. at p. 2384].) The Faretta court noted that “the trial judge may
terminate self-representation by a defendant who deliberately engages in serious
and obstructionist misconduct.” (Faretta, supra, 422 U.S. at p. 834, fn. 46; see
also People v. Carson, supra, 35 Cal.4th at pp. 8-9.) It is settled that the Faretta
right may be waived by failure to make a timely request to act as one‟s own
counsel (People v. Windham, supra, 19 Cal.3d at pp. 128-129), or by abandonment
and acquiescence in representation by counsel (People v. Stanley (2006) 39
Cal.4th 913, 929; People v. Dunkle (2005) 36 Cal.4th 861, 909-910). The court
may deny a request for self-representation that is equivocal, made in passing anger
or frustration, or intended to delay or disrupt the proceedings. (People v. Marshall
(2006) 15 Cal.4th 1, 23.) A defendant may be mentally incompetent to waive
counsel. (Godinez v. Moran (1993) 509 U.S. 389, 400-401.) And in Edwards, the
high court recently decided that “the Constitution permits States to insist upon
representation by counsel for those competent enough to stand trial under Dusky
[v. United States (1960) 362 U.S. 402] but who still suffer from severe mental
illness to the point where they are not competent to conduct trial proceedings by
themselves.” (Edwards, supra, __ U.S. at p. __ [128 S.Ct. at p. 2388].)
None of these circumstances, with the possible exception of obstructive
misconduct, was present in this case. Defendant timely, unequivocally, and
persistently invoked his Faretta right.3 The court expressed no concern that he
was attempting to delay or disrupt the proceedings. No question arose at any point
as to his mental competence to waive counsel or present a defense. The court did
refer to defendant‟s misconduct in custody when it initially revoked his self-
representation. At the time of the proceedings below, however, this was not a
valid basis for the court‟s action. In Ferrel v. Superior Court (1978) 20 Cal.3d
888 (Ferrel), this court held that only disruptive in-court misconduct would justify
terminating a defendant‟s pro. per. status. (Id. at p. 891.)
We have since renounced that rule, deciding that it unduly restricted trial
courts‟ authority to respond to misconduct occurring outside the courtroom.
(People v. Carson, supra, 35 Cal.4th at p. 8.) In Carson, we held that “serious and
obstructionist out-of-court misconduct” that threatens to “subvert the „core
concept of a trial‟ [citation] or to compromise the court‟s ability to conduct a fair
trial [citation]” may lead to forfeiture of the right to self-representation. (Id. at p.
3 The Attorney General contends defendant waived his claim of error by
acquiescing in the court‟s revocation of his self-representation in December 1996,
and abandoning the effort to defend his Faretta right in April 1997. We disagree.
Defendant said he understood the court‟s ruling in December, but he did not
accept it. As the Attorney General recognizes, defendant was not required to
renew his request after it was conclusively denied. (People v. Dent, supra, 30
Cal.4th at p. 219.) When the prosecutor reopened the issue, conceding defendant
had no notice of the disciplinary infractions she presented in December, defendant
immediately sought to contest the matter. Although he ultimately decided not to
question his witness at the hearing in April, he continued to assert his right of self-
representation. The following September, he filed another Faretta motion. No
waiver or abandonment can be gleaned from this record.
4 In Carson, the defendant‟s investigator mistakenly gave him discovery material
to which he was not entitled, including witness addresses and telephone numbers,
and criminal history records. (People v. Carson, supra, 35 Cal.4th at p. 12.) In
light of the defendant‟s “antecedent attempts to suborn perjury, fabricate an alibi,
and possibly intimidate a prosecution witness,” the trial court terminated his
(footnote continued on next page)
Here, defendant committed many disciplinary infractions in jail. Some
were minor but a number of them were quite troubling, even aside from the
jailhouse stabbing for which he was being prosecuted. He was repeatedly
discovered with weapons. On one occasion, he concealed a shank in his rectum
just before he was to be taken to the courtroom. The court had ample reason to be
reluctant about defendant‟s self-representation. We agree with the dissent that
defendant was an obvious security risk, and safety precautions were justified both
in the jail and the courtroom. However, there was no showing that his pro. per.
status increased the risk in any way. Self-represented or not, defendant was going
to be housed in the jail, transported to and from court, and in attendance for his
In any event, we need not and do not decide whether defendant‟s out-of-
court misconduct might have justified the revocation of his Faretta right, because
ultimately the court did not rely on that ground. Indeed, it permitted defendant to
resume representing himself shortly before trial, telling him that it was “not
concerned about the courtroom because we can handle you in the courtroom,” and
that he would be restrained from moving around freely whether or not he was
acting as his own counsel.5 The court made no reference to defendant‟s
(footnote continued from previous page)
Faretta right. (Id. at p. 13.) This court emphasized the necessity of developing an
adequate record of the basis for terminating a defendant‟s self-representation when
out-of-court misconduct is involved. (Id. at p. 11.) Because the record in Carson
did not sufficiently reflect the actual impact of the defendant‟s misconduct on the
trial, or whether sanctions short of termination would have addressed the problem,
we ordered a remand to the trial court for a hearing on those questions. (Id. at p.
5 A pro. per. defendant may be physically restrained during trial for security
purposes. (People v. Jenkins (2000) 22 Cal.4th 900, 1042-1043; People v.
Superior Court (George) (1994) 24 Cal.App.4th 350, 355.) Defendant and his
codefendants wore stun belts during the trial.
misconduct in jail, except to remind him that because of his record the sheriff was
unlikely to allow him to exercise the privileges ordinarily available to pro. per.
After less than a month, the court terminated defendant‟s self-
representation once again. This time, the revocation was based on the limitations
imposed on his ability to prepare for trial. The court observed that the situation
was not unique, but was “the pro per problem.” It declared that pro. per.
representation “just doesn‟t make sense” when “they restrict what you can do” in
The court erred in this instance. In Ferrel, the Attorney General argued that
“termination of a defendant‟s pro. per. status would . . . be justified when, by
defendant‟s own misconduct in jail, he loses his pro. per. privileges, thereby
making it practically impossible for him to prepare a defense.” (Ferrel, supra, 20
Cal.3d at p. 892.) The Ferrel court disagreed, observing that while limitations on
pro. per. privileges “may be necessary . . . as a result of a defendant‟s misconduct
in jail,” they “would not, however, preclude a defendant from making an
intelligent and voluntary decision to continue to represent himself provided that he
has been warned of the dangers and difficulties that such a choice might entail.”
Ferrel‟s decision on this point remains undisturbed. Restrictions on pro.
per. privileges in custody are not unusual. (See Wilson v. Superior Court, supra,
21 Cal.3d at pp. 824-826; 3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000)
Punishment, § 25, pp. 63-64; id., § 55, pp. 94-96.) They have never been deemed
a justification for depriving inmates of the right to represent themselves.
Later cases are consistent with Ferrel‟s holding that the conditions of confinement
are not a legal impediment to the exercise of Faretta rights. It is settled that while
self-represented inmates may not be deprived of all means of preparing a defense,
the Constitution does not require personal access to legal resources. The
provision of advisory counsel and reasonably necessary investigative assistance
sufficiently protects the Sixth Amendment rights of pro. per. inmates. (People v.
Jenkins, supra, 22 Cal.4th at p. 1040; see also People v. Blair, supra, 36 Cal.4th at
pp. 732-733; People v. Ringo (2005) 134 Cal.App.4th 870, 876-877; Kane v.
Garcia Espitia (2005) 546 U.S. 9, 10; Lewis v. Casey (1996) 518 U.S. 343, 350-
351.) Therefore, contrary to the trial court‟s view in this case, inmates still have
the right to represent themselves even when their ability to prepare is restricted in
Here, defendant had advisory counsel and was being given discovery
materials.6 The record reflects no request for an investigator during the weeks
before trial. Thus, it appears defendant had adequate resources to conduct his own
defense. To the extent the trial court based its decision on his inability to martial
those resources in his own defense, it was mistaken. The court‟s conclusion that
“it just doesn‟t make sense” to allow pro. per. representation under the
circumstances faced by defendant may have been reasonable, but it was
inconsistent with the requirements of Faretta and its progeny.
It is established that the effectiveness of a self-represented defendant‟s
preparation is ordinarily irrelevant.7 Defendants untrained in the law may well
6 The record indicates that counsel served in both “advisory” and “standby”
capacities. (See People v. Blair, supra, 36 Cal.4th at p. 725; People v. Hamilton
(1989) 48 Cal.3d 1142, 1164, fn. 14.)
7 Thus far, the only instance in which the United States Supreme Court has
recognized that a defendant‟s ability to conduct a defense has any bearing on the
right of self-representation is the recent decision in Edwards, which is limited to
cases of severe mental illness. (Edwards, supra, __ U.S. at p. __ [128 S.Ct. at p.
2388].) We asked the parties for briefing on whether Edwards had any relevance
to this case. Both sides agreed that it did not.
provide themselves with inept representation. But Faretta gives them the right to
make a thoroughly disadvantageous decision to act as their own counsel, so long
as they are fully advised and cognizant of the risks and consequences of their
choice. (Faretta, supra, 422 U.S. at pp. 835-836; Godinez v. Moran, supra, 509
U.S. at pp. 399-400; People v. Blair, supra, 36 Cal.4th at pp. 739-740; People v.
Koontz (2002) 27 Cal.4th 1041, 1069-1070; People v. Welch (1999) 20 Cal.4th
701, 733-734.) Those risks may include custodial limitations on the ability to
prepare a defense in jail. (Ferrel, supra, 20 Cal.3d at p. 892.) Here, defendant
was repeatedly and thoroughly admonished on that score, and made his decision
despite the restrictions imposed on him.
Defendant claims the court erred by failing to grant him a continuance so
that he could complete his preparations for trial. We do not reach this issue.
Defendant did not ask for a continuance, though this may have been because the
court admonished him that none would be granted. Indeed, the court never
considered the grounds for a continuance because of its view that defendant
simply could not be prepared under the conditions of his confinement. (See
People v. Jenkins, supra, 22 Cal.4th at p. 1039 [grounds for continuance must be
found in particular circumstances and reasons presented to trial court].)8 As we
8 We note, in any event, that the record does not support the Attorney General‟s
claim that a continuance was unwarranted because defendant was dilatory in his
preparation as the trial date approached in October 1997. Defendant‟s lack of
preparation appears to have resulted largely from factors beyond his control.
Defense counsel acknowledged that he had yet to provide defendant with a
substantial amount of discovery material. The documents that counsel had turned
over were being given to defendant on a piecemeal basis by jail staff, and the
record does not show how far that process had progressed. Furthermore,
defendant‟s opportunity to prepare for trial had been substantially compromised by
the revocation of his Faretta right during most of the previous year.
have explained, that determination afforded no ground for revoking defendant‟s
pro. per. status.
The dissent takes the position that a demonstrably dangerous defendant
may be denied his Sixth Amendment right of self-representation if reasonable
security measures restrict his opportunity to prepare for trial. There is no case that
stands for that proposition. We decide this case under compulsion of United
States Supreme Court precedent. The high court is free to refine its jurisprudence
in this area. However well advised such a development might be, this court is not
empowered to narrow the established scope of a federal constitutional right.
Accordingly, we conclude that defendant‟s conviction and sentence must be
reversed under the prevailing constitutional standards.
The judgment is reversed.
DISSENTING OPINION BY CHIN, J.
I dissent. The question before us is whether the Sixth Amendment requires
the trial court to allow a defendant who has already killed a jail inmate (and clearly
intends more jail violence) to represent himself, with the obvious danger to jail
inmates and staff and other difficulties inherent in such self-representation. The
majority holds that the trial court violated defendant‟s Sixth Amendment right to
represent himself when it revoked his self-representation status shortly before trial.
(See Faretta v. California (1975) 422 U.S. 806 (Faretta).) In my view, the trial
court properly refused to let defendant represent himself under the extreme
circumstances the case presents.1
When the trial court revoked defendant‟s self-representation status, in
October 1997, he was already under a judgment of death in another case. He was
in jail awaiting trial in this case for murdering an inmate in the same jail while
awaiting trial in the previous case. The murder charge was not just an unfounded
allegation, but had been supported by evidence presented in aggravation at the
previous trial (see People v. Butler (2009) 46 Cal.4th 847, 852-853) and at the
preliminary hearing in this case. That evidence showed that, on March 26, 1995,
Because the majority holds that the entire judgment must be reversed due to
the denial of self-representation, my views on the other issues defendant has raised
cannot affect the judgment, and I express no opinion on those issues. (See People
v. Mattson (1984) 37 Cal.3d 85, 96 (dis. opn. of Kaus, J.).)
defendant and other inmates stabbed the victim to death with a metal shank in full
view of a correctional officer.
Additionally, defendant had a long series of jail disciplinary charges,
ranging from minor to very serious. On several occasions, some after he had
already stabbed the inmate to death, he was found with razor blades modified for
use as a weapon. One time after the murder, defendant “slipped his cuffs and
assaulted an inmate in line.” Another time, again after he had stabbed the inmate
to death with a shank, he was caught concealing a four-inch shank in his rectum.
Defendant was an obvious and extreme jail security risk. He had killed one
inmate, clearly intended more violence and, because he was already under a
judgment of death, may have believed he had nothing to lose in perpetrating
further violence. The sheriff, charged with protecting the inmates entrusted to his
keeping, was understandably concerned about giving defendant self-representation
privileges. Human lives were at stake. The sheriff had a duty to do all he
reasonably could to ensure defendant had no opportunity to kill again.
Under the circumstances, the sheriff could reasonably protect inmates and
jail staff only by denying defendant access to the law library and imposing other
security restrictions that would prevent him from adequately preparing his case
and competently acting as his own counsel. There were also obvious problems
with discovery, as the proceedings before trial attest. How could defendant, with
his history, be personally entrusted with sensitive discovery materials from within
the jail system?
The majority insists that, even under these circumstances, the Sixth
Amendment forced the trial court to permit defendant to represent himself. I
disagree. The right of self-representation is not absolute. When, as here,
defendant‟s own actions made it difficult, if not virtually impossible, for him to
effectively represent himself, the trial court, consistent with protecting human
lives, may deny self-representation. Two decisions, one from this court and one
from the high court, neither directly on point but both highly instructive, make this
clear. Together, the two cases present intersecting theories supporting the denial
The first case is Indiana v. Edwards (2008) __ U.S. __ [128 S.Ct. 2379]
(Edwards). In Edwards, the Indiana Supreme Court had concluded the trial court
erred in denying self-representation to a defendant who, although competent to go
to trial, was not mentally competent to represent himself. It had believed that
Faretta, supra, 422 U.S. 806, and Godinez v. Moran (1993) 509 U.S. 389 required
the state to allow the defendant to represent himself even under those
circumstances. (Edwards, supra, __ U.S. at p. __ [128 S.Ct. at p. 2383].) The
high court reversed the Indiana Supreme Court and held the state properly denied
self-representation. The court explained, “Faretta does not answer the question
before us both because it did not consider the problem of mental competency
[citation], and because Faretta itself and later cases have made clear that the right
of self-representation is not absolute.” (Id. at p. __ [128 S.Ct. at p. 2384].)
Edwards “concern[ed] a mental-illness-related limitation on the scope of
the self-representation right.” (Edwards, supra, __ U.S. at p. __ [128 S.Ct. at p.
2384].) The court concluded that a trial court may deny self-representation to a
defendant who is “not mentally competent to conduct [the] trial himself.” (Id. at
p. __ [128 S.Ct. at p. 2381].) Edwards is not directly on point. The trial court
here did not deny self-representation because of defendant‟s mental state, but
because of his violent behavior in jail. But the reasons Edwards gave for
permitting the court to deny self-representation apply here. “[A] right of self-
representation at trial will not „affirm the dignity‟ of a defendant who lacks the
mental capacity to conduct his defense without the assistance of counsel.”
(Edwards, supra, at p. __ [128 S.Ct. at p. 2387].) Here, we should be similarly
unconcerned with affirming the dignity of a defendant who is already under a
sentence of death, and who is personally responsible for the actions that made him
such a security risk that he could not effectively defend himself. The specter of a
defendant trying to defend himself while incarcerated under severe restrictions that
make it impossible for him to capably do so is hardly consistent with affirming
that defendant‟s dignity.
“Moreover, insofar as a defendant‟s lack of capacity threatens an improper
conviction or sentence, self-representation in that exceptional circumstance
undercuts the most basic of the Constitution‟s criminal law objectives, providing a
fair trial.” (Edwards, supra, __ U.S. at p. __ [128 S.Ct. at p. 2387].) “ „[T]he
government‟s interest in ensuring the integrity and efficiency of the trial at times
outweighs the defendant‟s interest in acting as his own lawyer.‟ ” (Ibid.)
Accordingly, “the Constitution permits judges to take realistic account of the
particular defendant‟s mental capacities by asking whether a defendant who seeks
to conduct his own defense at trial is mentally competent to do so.” (Id. at p. __
[128 S.Ct. at pp. 2387-2388], italics added.) Similarly, the Constitution permits
judges to take realistic account of the particular defendant‟s history of jail
misconduct, which makes it effectively impossible for him to capably defend
himself, consistent with protecting the lives of inmates and staff.
The second case that supports the trial court‟s denial of self-representation
is our own decision in People v. Carson (2005) 35 Cal.4th 1 (Carson). In Carson,
the trial court revoked the defendant‟s right of self-representation due to his out-
of-court misconduct, possibly including witness intimidation, that threatened to
obstruct the trial proceedings. We explained that Faretta, supra, 422 U.S. 806,
“understandably contains scant reference to the circumstances that would justify
termination of the right of self-representation.” (Carson, supra, at p. 8.) We
extended the grounds for denying self-representation to out-of-court misconduct
“that seriously threatens the core integrity of the trial.” (Id. at p. 6.) We also said
that “we do not suggest witness intimidation is the only type of serious and
obstructionist out-of-court misconduct that may warrant termination of self-
representation.” (Id. at p. 10.) Thus, Carson establishes that, under certain
circumstances, the defendant can, by his own actions, effectively forfeit the right
The majority is correct that Carson is not directly on point. The trial court
here did not deny self-representation because of courtroom security concerns.
Indeed, it acknowledged that defendant had behaved himself in the courtroom.
But it certainly denied self-representation due to jail security concerns. Jail
security concerns dominated the entire course of the litigation involving
defendant‟s representation, beginning with county counsel‟s first appearance
representing the sheriff and expressing the sheriff‟s concerns. Beyond question, a
court must ensure courtroom security, and fulfilling this duty may justify the
denial of self-representation. But the court must also be sensitive to jail security.
The need to protect the lives of jail inmates and staff from a defendant‟s
murderous conduct may also justify the denial of self-representation.
The necessary limitations on defendant‟s self-representation, which he
alone caused, would have threatened the core integrity of the trial. The high court
in Edwards concluded that the Sixth Amendment permits a court to deny self-
representation to a defendant who, through no fault of his own, lacks the ability to
capably represent himself. Similarly, the Sixth Amendment also permits a court to
deny self-representation to a defendant whose own actions make it realistically
impossible for him to capably represent himself.
It might be possible, I suppose, for the sheriff and court to work out
arrangements that could permit defendant to defend himself at least to some
extent — for example, by supplying defendant with his own law library or perhaps
his own computer and Internet connection in his jail cell, combined with other
measures. I am sure the same was true in Carson, supra, 35 Cal.4th 1. But such
arrangements would, no doubt, be extraordinarily difficult and expensive and still
entail considerable risk. Jail resources are limited, and any extraordinary
expenditure of resources on defendant would mean reduced resources available for
other inmates, including those who behave themselves. Defendant‟s history of jail
violence made his competent self-representation incompatible with jail security or
the reasonable expenditure of jail and judicial resources. As was the case in
Carson, the Sixth Amendment does not require courts to adopt extraordinary
measures to shield defendants from the consequences of their own actions.
The majority argues convincingly that the trial court could have permitted
defendant to represent himself. (Maj. opn., ante, at pp. 15-16.)2 Assuming
adequate admonitions and a knowing waiver, I do not doubt the court would not
have erred in any way defendant could have complained of had it permitted him to
represent himself, even with all of the restrictions that self-representation would
have required under the circumstances. However, the question is not whether the
However, the majority‟s description of what it claims is “settled” law (maj.
opn., ante, at p. 15) oversimplifies a more complex question, as attested by a
review of the two high court decisions the majority cites in this regard. Kane v.
Garcia Espitia (2005) 546 U.S. 9 reversed a federal appellate court decision that
had set aside a state criminal conviction for failure to provide a self-representing
defendant with law library access. The high court stated that its jurisprudence had
not clearly established a law library access right, and the federal courts were
divided on the question. Thus, under federal habeas corpus law, the lower court
erred in setting aside a state court conviction on that basis. The high court
expressly did not resolve the question of whether a self-representing defendant has
a right to law library access. (Id. at p. 10.) Thus, if anything, Kane suggests that
the relevant law is unsettled, at least within the federal courts.
Lewis v. Casey (1996) 518 U.S. 343 did not involve self-represented
criminal defendants at all, but rather the rights of prison inmates to court access
after they have been convicted. It has nothing whatsoever to do with this issue.
court erred in permitting self-representation, but whether it erred denying it. As
the high court stressed, holding that a court may permit a defendant to represent
himself “simply does not tell a State whether it may deny a gray-area defendant
the right to represent himself — the right at issue here.” (Edwards, supra, __ U.S.
at p. __ [128 S.Ct. at p. 2385].) The majority never confronts this question. It
simply leaps from the conclusion that defendant could have been permitted to
represent himself to the non sequitor that “[t]herefore, contrary to the trial court‟s
view in this case, inmates still have the right to represent themselves even when
their ability to prepare is restricted in custody.” (Maj. opn., ante, at p. 16.)
The majority states that the trial “court‟s conclusion that „it just doesn‟t
make sense‟ to allow pro. per. representation under the circumstances faced by
defendant may have been reasonable, but it was inconsistent with the requirements
of Faretta and its progeny.” (Maj. opn., ante, at p. 16.) Reasonable the court‟s
conclusion certainly was. But under the teachings of Edwards, supra, __ U.S. __
[128 S.Ct. 2379], and Carson, 35 Cal.4th 1, it was also fully consistent with Sixth
I do not suggest a trial court may deny self-representation lightly. In
normal circumstances, the trial court must honor a criminal defendant‟s right of
self-representation. But the circumstances here were far from normal. At least
when a defendant awaiting trial has already killed a jail inmate and has shown that
he intends further violence, the court may conclude that, by his own actions, he
has forfeited his right of self-representation. The Sixth Amendment right of self-
representation does not require courts to endanger human life or take heroic
measures to satisfy a murderous defendant‟s desire to represent himself.
I CONCUR: BAXTER, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Butler
Original Appeal XXX
Date Filed: December 10, 2009
County: Los Angeles
Judge: J. D. Smith
Attorneys for Appellant:Lynne S. Coffin and Michael J. Hersek State Public Defenders, under appointment by the Supreme Court,
Jay Colangelo, Assistant State Public Defender, Jessica K. McGuire and Caroline Lange, Deputy State
Public Defenders, for Defendant and Appellant.
Attorneys for Respondent:Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,
Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and
Jason C. Tran, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):Jessica K. McGuire
Deputy State Public Defender
801 K Street, Suite 1100
Sacramento, CA 95814-3518
Jason C. Tran
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Automatic appeal from a judgment of death.
|Date:||Docket Number:||Category:||Status:||Cross Referenced Cases:|
|Thu, 12/10/2009||S068230||Automatic Appeal||opinion issued|| |
PEOPLE v. BUTLER (RAYMOND O.) (S055501)
|1||The People (Respondent)|
Represented by Attorney General - Los Angeles Office
Jason C. Tran, Deputy Attorney General
300 S. Spring Street, 5th Floor
Los Angeles, CA
|2||Butler, Raymond Oscar (Appellant)|
San Quentin State Prison
Represented by Office of the State Public Defender
Jessica K. McGuire, Assistant State Public Defender
801 "K" Street, Suite 1100
|Dec 10 2009||Opinion: Reversed|
|Feb 20 1998||Judgment of death|
|Feb 26 1998||Filed certified copy of Judgment of Death Rendered|
|Feb 26 1998||Penal Code sections 190.6 et seq. apply to this case|
|Jul 20 1998||Record certified for completeness|
|Aug 19 1998||Application for Extension of Time filed|
By Court Reporter to file Computer-Readable Disks.
|Aug 24 1998||Extension of Time application Granted|
To Court Reporter Diana R. Grace To 9-21-98 To Deliver Computer-Readable copies of the Reporter's Transcript on Appeal.the Reporter Shall Notify The Supeme Court in Writing when The Disks have been Delivered
|May 30 2001||Order appointing State Public Defender filed|
to represent applt for the direct appeal.
|Jun 6 2001||Date trial court delivered record to appellant's counsel|
|Jul 5 2001||Appellant's opening brief letter sent, due:|
1-7-2002. (pursuant to Calif. Rules of Court, rule 39.57(b).)
|Jul 31 2001||Counsel's status report received (confidential)|
from State P.D.
|Sep 28 2001||Counsel's status report received (confidential)|
from State P.D.
|Nov 27 2001||Counsel's status report received (confidential)|
from State P.D.
|Jan 7 2002||Request for extension of time filed|
To file AOB. (1st request)
|Jan 8 2002||Extension of time granted|
To 3/8/2002 to file AOB.
|Jan 25 2002||Counsel's status report received (confidential)|
from State P.D.
|Mar 5 2002||Request for extension of time filed|
To file AOB. (2nd request)
|Mar 6 2002||Extension of time granted|
To 5/7/2002 to file AOB.
|Mar 25 2002||Counsel's status report received (confidential)|
from State P.D.
|May 6 2002||Request for extension of time filed|
To file AOB. (3rd request)
|May 13 2002||Filed:|
Suppl. declaration in support of request for extension of time to file AOB.
|May 16 2002||Extension of time granted|
To 7/8/2002 to file AOB. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule.
|May 24 2002||Counsel's status report received (confidential)|
from State P.D.
|Jul 5 2002||Request for extension of time filed|
To file AOB. (4th request)
|Jul 8 2002||Extension of time granted|
To 9/6/2002 to file AOB. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule.
|Jul 16 2002||Received copy of appellant's record correction motion|
Applt's request for correction of record, applic. for settled statements, applic. for additional records, and request for documentary exhibits. (13 pp.)
|Jul 22 2002||Counsel's status report received (confidential)|
from State P.D.
|Sep 5 2002||Request for extension of time filed|
to file AOB. (5th request)
|Sep 10 2002||Extension of time granted|
To 11/5/2002 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule.
|Sep 20 2002||Counsel's status report received (confidential)|
from State P.D.
|Nov 4 2002||Request for extension of time filed|
To file appellant's opening brief. (6th request)
|Nov 12 2002||Extension of time granted|
To 1/6/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Nov 21 2002||Counsel's status report received (confidential)|
from State P.D.
|Dec 17 2002||Record certified for accuracy|
|Dec 31 2002||Request for extension of time filed|
to file appellant's opening brief. (7th request)
|Jan 6 2003||Extension of time granted|
To 3/7/2003 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Jan 17 2003||Counsel's status report received (confidential)|
from State P.D.
|Feb 21 2003||Motion filed|
"Appellant's Motion To Vacate Certification, Or, In The Alternative, To Correct, Augment And Settle The Record."
|Feb 25 2003||Record on appeal filed|
Clerk's transcript 24 volumes (6626 pp.) and reporter's transcript 26 volumes (2875 pp.), including material under seal; ASCII disks. Clerk's transcript includes 5154 pp. of juror questionnaires.
|Feb 26 2003||Opposition filed|
by respondent, opposing appellant's motion to vacate certification or to correct, augment and settle the record.
|Feb 27 2003||Request for extension of time filed|
to file appellant's opening brief. (8th request)
|Mar 5 2003||Extension of time granted|
to 5/6/2003 to file appellant's opening brief. After that date, only one further extension totaling about 70 additional days will be granted. Extension is granted based upon Deputy State Public Defender Caroline R. Lange's representation that she anticipates filing that brief by 7/15/2003.
|Mar 18 2003||Counsel's status report received (confidential)|
from State P.D.
|Apr 24 2003||Received:|
Reporter's transcript: 23 ASCII disks.
|May 1 2003||Request for extension of time filed|
to file appellant's opening brief. (9th request)
|May 7 2003||Extension of time granted|
to 7/7/2003 to file appellant's opening brief. After that date, only one further extension totaling 70 additional days is contemplated. Extension is granted based upon Senior Deputy State Public Defender Jessica K. McGuire's representation that she anticipates filing that brief by 9/15/2003.
|May 15 2003||Counsel's status report received (confidential)|
from State P.D.
|Jul 2 2003||Counsel's status report received (confidential)|
from State P.D.
|Jul 2 2003||Request for extension of time filed|
to file appellant's opening brief. (10th request)
|Jul 10 2003||Extension of time granted|
Good cause appearing, and pending disposition of "Appellant's Motion to Vacate Certification, Or, In The Alternative, To Correct, Augment And Settle The Record," filed on 2-21-2003, counsel's request for an extension of time in which to file AOB is granted to 9-5-2003.
|Sep 2 2003||Request for extension of time filed|
to file appellant's opening brief. (11th request)
|Sep 3 2003||Counsel's status report received (confidential)|
from State P.D.
|Sep 4 2003||Extension of time granted|
to 11/4/2003 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon Assistant State Public Defender Jay Colangelo's representation that he anticipates filing that brief by 12/4/2003.
|Oct 27 2003||Request for extension of time filed|
to file appellant's opening brief. (12th request)
|Oct 30 2003||Extension of time granted|
to 1/2/2004 to file appellant's opening brief. Extension is granted based upon Assistant State Public Defender Jay Colangelo's representation that he anticipates filing that brief by 1/2/2004. After that date, no further extension will be granted.
|Nov 6 2003||Counsel's status report received (confidential)|
from State P.D.
|Dec 30 2003||Appellant's opening brief filed|
|Jan 22 2004||Request for extension of time filed|
to file respondent's brief. (1st request)
|Jan 27 2004||Extension of time granted|
to 3-29-2004 to file respondent's brief.
|Mar 24 2004||Request for extension of time filed|
to file respondent's brief. (2nd request)
|Apr 1 2004||Extension of time granted|
to 5/28/2004 to file respondent's brief. After that date, only one further extension totaling about 54 additional days is contemplated. Extension is granted based upon Deputy Attorney General Jason Tran's representation that he anticipates filing that brief by 7/16/2004.
|May 27 2004||Request for extension of time filed|
to file respondent's brief (3rd request)
|May 28 2004||Extension of time granted|
to 7/16/2004 to file respondent's brief. Extension is granted ased upon Deputy Attorney General Jason Tran's representation that he anticipates filing that brief by 7/16/2004. After that date, no further extension is contemplated.
|Jun 25 2004||Respondent's brief filed|
(20, 188 words - 77 pp.)
|Sep 2 2004||Request for extension of time filed|
to file appellant's reply brief. (1st request)
|Sep 7 2004||Extension of time granted|
to 10/22/2004 to file appellant's reply brief.
|Oct 14 2004||Request for extension of time filed|
to file appellant's reply brief. (2nd request)
|Oct 19 2004||Extension of time granted|
to 12/21/2004 to file appellant's reply brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon Deputy State Public Defender Caroline R. Lange's representation that she anticipates filing that brief by 2/18/2005.
|Dec 14 2004||Request for extension of time filed|
to file appellant's reply brief. (3rd request)
|Dec 16 2004||Extension of time granted|
to 2/18/2005 to file appellant's reply brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon Deputy State Public Defender Caroline R. Lange's representation that she anticipates filing that brief by 4/19/2005.
|Feb 14 2005||Request for extension of time filed|
to file appellant's reply brief. (4th request)
|Feb 18 2005||Extension of time granted|
to 4/19/2005 to file appellant's reply brief. Extension is granted based upon Deputy State Public Defender Caroline R. Lange's representation that she anticipates filing that brief by 4/19/2005. After that date, no further extension will be granted.
|Apr 12 2005||Request for extension of time filed|
to file appellant's reply brief. (5th request)
|Apr 15 2005||Extension of time granted|
to 6/20/2005 to file appellant's reply brief. Extension is granted based upon Deputy State Public Defender Caroline R. Lange's representation that she anticipates filing that brief by 6/20/2005. After that date, no further extension will be granted.
|May 18 2005||Record augmentation granted in part/denied in part|
Appellant's "Motion to Vacate Certification, or, in the Alternative, to Correct, Augment and Settle the Record," filed February 21, 2003, is granted insofar as it requests inclusion of the following items as part of the record "in the case" (Cal. Rules of Court, rule 34.1(a)(1)(C), (2)(C)), and the record is hereby ordered augmented to include all such items (id., rule 36.1(c)): All documents filed or lodged, and transcripts of all oral proceedings, in the municipal or superior courts pertaining to the joint trial of appellant Raymond Oscar Butler and codefendants Daniel Rivera and Paul Apollo Gornick, whether or not such matters relate specifically to appellant, and whether or not appellant and his counsel have had access to such documents or transcripts or were present at such proceedings. The superior court is directed to cause supplemental clerk's and reporter's transcripts, containing any and all such items which were omitted from the record heretofore certified and transmitted by the superior court, to be prepared, certified, and transmitted to this court as an augmentation to the record. Documents filed under seal, and the transcripts of in camera proceedings from which one or more parties were excluded, shall be transmitted under seal, and copies shall be provided only to counsel for those parties who were present at the proceedings. (See Cal. Rules of Court, rule 34.1(b).) The superior court is directed to comply with this order by July 18, 2005. Upon certification and transmittal of the augmentation, appellant may seek from this court access to, or the unsealing of, any sealed materials. Notwithstanding the foregoing, the supplemental transcripts comprising the augmentation shall not include trial exhibits, which are automatically part of the record, but shall be physically transmitted to the reviewing court only as specifically requested by a party or the reviewing court (Cal. Rules of Court, rule 36.1(b)). In the event that matters set forth in the augmentation raise additional issues on appeal, appropriate provision will be made for the briefing of such issues.
|Jun 20 2005||Appellant's reply brief filed|
(25,276 words; 98 pp.)
|Jun 29 2005||Filed:|
Clerk's 6th supplemental transcript, including material under seal (4 volumes - 1068 pp.) and reporter's transcript (1 volume - 4 pp.). (NOTE: pursuant to Supreme Court's order of 5/18/2005)
|Jun 29 2005||Letter sent to:|
counsel advising additional record on appeal filed this date. (NOTE: pursuant to Supreme Court's order of 5/18/2005)
|Jan 16 2009||Motion filed (AA)|
by appellant, "Request for Leave to File Supplemental Opening Brief and Application for File Brief in Excess of 2,800 Words"
|Jan 29 2009||Order filed|
Appellant's "Request for Leave to File Supplemental Opening Brief and Application to File Brief in Excess of 2,800 Words" are granted. The supplemental respondent's brief must be served and filed on or before February 18, 2009. Appellant's supplemental reply brief will be due within 10 days of the filing of the supplemental respondent's brief.
|Jan 29 2009||Supplemental brief filed|
by appellant, "Appellant's Supplemental Opening Brief" (3,144 words; 13 pp.)
|Feb 20 2009||Request for extension of time filed (AA)|
to file respondent's supplemental brief. (1st corrected)
|Feb 25 2009||Extension of time granted|
Good cause appearing, and based upon Deputy Attorney General Jason Tran's representation that he anticipates filing the supplemental respondent's brief by May 19, 2009, counsel's request for an extension of time in which to file that brief is granted to April 20, 2009. After that date, only one further extension totaling about 30 additional days is contemplated.
|Apr 10 2009||Request for extension of time filed|
to file respondent's supplemental brief. (2nd request)
|Apr 20 2009||Extension of time granted|
Good cause appearing, and based upon Deputy Attorney General Jason Tran's representation that he anticipates filing the supplemental respondent's brief by July 20, 2009, counsel's request for an extension of time in which to file that brief is granted to June 19, 2009. After that date, only one further extension totaling about 30 additional days is contemplated.
|Jun 19 2009||Oral argument letter sent|
advising counsel that the court could schedule this case for argument as early as the September calendar, to be held the week commencing August 31, 2009 in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
|Jun 18 2009||Request for extension of time filed|
to file respondent's supplemental brief. (3rd request)
|Jun 26 2009||Order filed directing filing of a brief|
The parties are requested to brief the relevance, if any, of Indiana v. Edwards (2008) ___ U.S. ___ [128 S.Ct. 2379], to the issues raised in this case. The parties may serve and file simultaneous opening letter briefs on or before July 20, 2009. Letter reply briefs may be served and filed on or before August 3, 2009.
|Jun 26 2009||Extension of time granted|
Good cause appearing, the request of Deputy Attorney General Jason Tran for an extension of time to file the supplemental respondent's brief is granted to August 17, 2009. Appellant's supplemental reply brief, if any, must be filed by August 31, 2009. No further extensions of time will be granted.
|Jun 30 2009||Received:|
letter from Chief Assistant State Public Defender Donald Ayoob, dated June 30, 2009, regarding the letter briefs requested by the court and the scheduling of oral argument.
|Jul 20 2009||Letter brief filed|
Respondent: The PeopleAttorney: Attorney General - Los Angeles Office respondent's opening letter brief, dated July 20, 2009, re relevance of Indiana v. Edwards
|Jul 20 2009||Letter brief filed|
Appellant: Butler, Raymond OscarAttorney: Office of the State Public Defender appellant's opening letter brief, dated July 20, 2009, re relevance of Indiana v. Edwards
|Jul 21 2009||Received:|
letter from Assistant State Public Defender Jessica McGuire, dated July 20, 2009, with July 9, 2009 letter which was apparently never received by the court. She requests that oral argument not be scheduled until the October calendar, due to a prepaid, non-refundable vacation the week of the September 2009 calendar.
|Aug 17 2009||Supplemental brief filed|
Respondent: The PeopleAttorney: Attorney General - Los Angeles Office supplemental respondent's brief (1,297 words; 6 pp.)
|Aug 26 2009||Request for extension of time filed|
to file appellant's supplmental reply brief. (1st request)
|Sep 2 2009||Extension of time denied|
The motion for an extension of time to file appellant's supplemental reply brief is denied.
|Sep 2 2009||Case ordered on calendar|
To be argued Tuesday, October 6, 2009, 1:30 p.m., Los Angeles, California.
|Sep 9 2009||Letter sent to:|
counsel: At oral argument on October 6, 2009, the court will be particularly interested in hearing from the parties on the issues raised in Part I of appellant's opening brief, regarding his right of self-representation under Faretta v. California (1975) 422 U.S. 806.
|Sep 9 2009||Filed:|
respondent's focus issues letter, dated September 9, 2009
|Sep 10 2009||Received:|
appearance sheet from Supervising Deputy State Public Defender, Jessica K. McGuire, indicating 45 minutes for oral argument for appellant.
|Sep 11 2009||Filed:|
appellant's focus issues letter, dated September 10, 2009
|Oct 6 2009||Cause argued and submitted|
|Dec 9 2009||Notice of forthcoming opinion posted|
To be filed on Thursday, December 10, 2009 at 10 a.m.
|Dec 10 2009||Opinion filed: Judgment reversed|
Opinion by Corrigan, J. ----- joined by George, C.J., Kennard, Werdegar and Moreno, JJ. Dissenting Opinion by Chin, J. ----- joined by Baxter, J.
|Dec 30 2003||Appellant's opening brief filed|
|Jun 25 2004||Respondent's brief filed|
|Jun 20 2005||Appellant's reply brief filed|