Supreme Court of California Justia
Docket No. S117568
People v. Carson

Filed 2/3/05


Plaintiff and Respondent,
Ct.App. 2/7 B153072
Los Angeles County
Defendant and Appellant.
Super. Ct. No. PA034279

We granted review in this case to determine whether a trial court may
terminate or revoke a criminal defendant’s right of self-representation only for
in-court misconduct. (See Ferrel v. Superior Court (1978) 20 Cal.3d 888, 891
(Ferrel).) We conclude that neither the language nor the logic of Faretta v.
California (1975) 422 U.S. 806 (Faretta) imposes such a limitation. Regardless of
where it occurs, a court may order termination for misconduct that seriously
threatens the core integrity of the trial.
Defendant David V. Carson was charged with murder (Pen. Code, § 187),
mayhem (id., § 203), and aggravated assault (id., § 245, subd. (a)(1)) as well as
various enhancement allegations. Counsel was appointed and represented him
through the preliminary hearing. Well before the scheduled trial date, defendant
made a motion to represent himself. After determining the waiver of counsel was
knowing and voluntary (see Faretta, supra, 422 U.S. at p. 835), the trial court

granted the motion. Several months later, however, the court terminated
defendant’s in propria persona status based on out-of-court conduct relating to
discovery matters. Standby counsel assumed representation, and the case
proceeded to trial. A jury convicted defendant on all counts and found true the
enhancement allegations.
The Court of Appeal reversed the conviction. Relying in part on Ferrel,
supra, 20 Cal.3d 888, it concluded defendant “engaged in no disruptive or
obstructive conduct,” and therefore the trial court abused its discretion in
terminating his right of self-representation. Nevertheless, the court questioned the
analytical soundness of certain language in Ferrel: “Although this does not appear
the case to do so, we suggest our Supreme Court, in a proper case, revisit Ferrel,
supra, 20 Cal.3d 888, and reexamine the issue of when a trial court may terminate
the defendant’s right of self-representation. (See, e.g., United States v. Dougherty
(D.C. Cir. 1972) 473 F.2d 1113, 1124-1126 [courts may appoint standby counsel
to represent defendant who is representing himself if the defendant begins to
subvert the core concept of a trial].) Dougherty was one of the two cases cited by
Justice Stewart in Faretta’s brief discussion of the trial court’s authority to
terminate the right of a defendant to represent himself when he engages in
obstructionist conduct. (See Faretta, supra, 422 U.S. at pp. 834-835, fn. 46.)
Although far from unambiguous, we believe that this reference suggests the
Faretta court intended to embrace Dougherty’s standard for termination of the
right of self-representation: does the defendant’s misconduct seriously threaten
the core integrity of the trial. Termination of the right of self-representation is a
severe sanction and must not be imposed lightly. Nonetheless, we believe trial
courts should be given sufficient discretion when confronted with behavior—
whether occurring in court or out of court—that threatens to compromise the

court’s ability to conduct a fair trial. (Cf. Illinois v. Allen [(1970)] 397 U.S. [337,]
At respondent Attorney General’s behest, we accepted this invitation and
granted review to reconsider whether the authority to terminate a defendant’s right
of self-representation is limited to in-court misconduct.
Ferrel, the trial court terminated the defendant’s right of
self-representation after his “repeated violation of jail rules involving abuse of his
pro. per. privileges” (Ferrel, supra, 20 Cal.3d at p. 891), principally using his legal
runner to pass illegal gambling proceeds out of the jail and damaging a jail
telephone. In addressing the propriety of the court’s ruling, we acknowledged that
“[l]imitations on or suspension of a defendant’s pro. per. privileges, whether or not
such privileges may initially be required, may be necessary in certain
circumstances as a result of a defendant’s misconduct in jail.” (Id. at p. 892, fn.
omitted.) With respect to in propria persona status, however, we stated, “Since it
is manifest that the right to present a defense must necessarily be exercised in
court, we conclude that an accused should only be deprived of that right when he
engages in disruptive in-court conduct which is inconsistent with its proper
exercise.” (Id. at p. 891.)
On its facts, the ultimate conclusion in Ferrel was correct. The defendant’s
misconduct was unrelated to and independent of the underlying prosecution and
thus presented no danger of impairing the integrity of the trial. Because the acts in
Ferrel did not threaten to obstruct the proceedings, the trial court had plainly
abused its discretion in revoking the defendant’s in propria persona status. Now
that we confront misconduct that might compromise the fairness of the trial,
however, we deem it prudent to reconsider the breadth of our holding in Ferrel,

which appears to sanction termination of Faretta rights only for “disruptive
in-court conduct.” (Ferrel, supra, 20 Cal.3d at p. 891.) Having reexamined our
conclusion, we find it unsupported by either the language or logic of Faretta.
Moreover, it unnecessarily restricts the trial court’s authority to respond to
misconduct occurring outside the courtroom that can equally threaten to obstruct
the trial proceedings.
The fundamental question before the Supreme Court in Faretta was
“whether a defendant in a state criminal trial has a constitutional right to proceed
[to trial] without counsel when he voluntarily and intelligently elects to do so.”
(Faretta, supra, 422 U.S. at p. 807.) The opinion thus understandably contains
scant reference to the circumstances that would justify termination of the right of
self-representation. In a footnote, the court noted:
“We are told that many criminal defendants representing themselves may
use the courtroom for deliberate disruption of their trials. But the right of
self-representation has been recognized from our beginnings by federal law and by
most of the States, and no such result has thereby occurred. Moreover, the trial
judge may terminate self-representation by a defendant who deliberately engages
in serious and obstructionist misconduct. See Illinois v. Allen, [supra,] 397 U.S.
337. Of course, a State may—even over objection by the accused—appoint a
‘standby counsel’ to aid the accused if and when the accused requests help, and to
be available to represent the accused in the event that termination of the
defendant’s self-representation is necessary. See United States v. Dougherty
[(1972)] 154 U.S.App.D.C. 76, 87-89, 473 F.2d 1113, 1124-1126.
“The right of self-representation is not a license to abuse the dignity of the
courtroom. Neither is it a license not to comply with relevant rules of procedural
and substantive law. Thus, whatever else may or may not be open to him on
appeal, a defendant who elects to represent himself cannot thereafter complain that

the quality of his own defense amounted to a denial of ‘effective assistance of
counsel.’ ” (Faretta, supra, 422 U.S. at p. 834, fn. 46.)
Nothing in this passage implies any intent to limit “serious and
obstructionist misconduct” to the courtroom. (Cf. State v. Whalen (Ariz. 1997)
961 P.2d 1051, 1055 & fn. 5.) The citation to Illinois v. Allen, supra, 397 U.S.
337, does not suggest otherwise. In that case, the defendant was represented by
counsel and became obstreperous during the trial. In answering the question
whether his removal violated constitutional guarantees, the high court held that “a
defendant can lose his right to be present at trial if, after he has been warned by the
judge that he will be removed if he continues his disruptive behavior, he
nevertheless insists on conducting himself in a manner so disorderly, disruptive,
and disrespectful to the court that his trial cannot be carried on with him in the
courtroom.” (Id. at p. 343.) With respect to Faretta rights, this holding means
simply that to the extent a defendant represented by counsel may be removed from
the courtroom for disruptive behavior, so too may an in propria persona defendant:
“The right of self-representation is not a license to abuse the dignity of the
courtroom.” (Faretta, supra, 422 U.S. at p. 834, fn. 46.) Because Allen was not a
case of self-representation, however, it is not authority for the conclusion that only
in-court misconduct will justify terminating that right. (See People v. Nguyen
(2000) 22 Cal.4th 872, 879.)
Although the trial is the central event in a criminal prosecution, it
represents the culmination of many weeks or months of preparation and related
proceedings, such as discovery matters and in limine rulings. Not all these pretrial
activities will take place in court. Concomitantly, opportunities to abuse the right
of self-representation and engage in obstructionist conduct are not restricted to the
courtroom. (See United States v. Flewitt (9th Cir. 1989) 874 F.2d 669, 674.) In
other words, the “relevant rules of procedural and substantive law” (Faretta,

supra, 422 U.S. at p. 834, fn. 46) are not limited to those relating solely to the trial
itself. (Cf. McKaskle v. Wiggins (1984) 465 U.S. 168, 173; People v. Rudd (1998)
63 Cal.App.4th 620, 632.) Ultimately, the effect, not the location, of the
misconduct and its impact on the core integrity of the trial will determine whether
termination is warranted.
One form of serious and obstructionist misconduct is witness intimidation,
which by its very nature compromises the factfinding process and constitutes a
quintessential “subversion of the core concept of a trial.” (United States v.
Dougherty, supra, 473 F.2d at p. 1125.) “A defendant acting as his own attorney
has no greater privileges than any member of the bar. He may not disrupt
proceedings or intimidate witnesses. [Citations.] . . . The trial court can stop
harassment and abuse of a witness by a threatening defendant and can terminate
self-representation by a defendant who engages in serious misconduct.
[Citations.]” (State v. Jessup (Wash.Ct.App. 1982) 641 P.2d 1185, 1190.)
Threatening or intimidating acts are not limited to the courtroom. (Cf. Alvarado v.
Superior Court (2000) 23 Cal.4th 1121, 1149, fn. 15 [describing severe problem of
witness intimidation by prison gangs].) When a defendant exploits or manipulates
his in propria persona status to engage in such acts, wherever they may occur, the
trial court does not abuse its discretion in determining he has forfeited the right of
continued self-representation.
In citing this example, 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. (See, e.g., People v. Rudd, supra, 63
Cal.App.4th at p. 633; cf. Illinois v. Allen, supra, 397 U.S. at pp. 343-344.)
Whenever “deliberate dilatory or obstructive behavior” threatens to subvert “the
core concept of a trial” (United States v. Dougherty, supra, 473 F.2d at p. 1125) or
to compromise the court’s ability to conduct a fair trial (see Allen, at p. 343), the

defendant’s Faretta rights are subject to forfeiture. Each case must be evaluated
in its own context, on its own facts, in light of the considerations discussed below.
When determining whether termination is necessary and appropriate, the
trial court should consider several factors in addition to the nature of the
misconduct and its impact on the trial proceedings. One consideration is the
availability and suitability of alternative sanctions. (Cf. Illinois v. Allen, supra,
397 U.S. at pp. 343-344.) Misconduct that is more removed from the trial
proceedings, more subject to rectification or correction, or otherwise less likely to
affect the fairness of the trial may not justify complete withdrawal of the
defendant’s right of self-representation. (See, e.g., United States v. Brock
(7th Cir. 1998) 159 F.3d 1077, 1080-1081; United States v. Flewitt, supra, 874
F.2d at pp. 673-675; State v. Whalen, supra, 961 P.2d at pp. 1055-1056; State v.
Jessup, supra, 641 P.2d at p. 1190; see also Ferrel, supra, 20 Cal.3d at p. 892.)
The court should also consider whether the defendant has been warned that
particular misconduct will result in termination of in propria persona status. (See
Whalen, at p. 1057; cf. Allen, at p. 343.) Not every obstructive act will be so
flagrant and inconsistent with the integrity and fairness of the trial that immediate
termination is appropriate. By the same token, however, the defendant’s acts need
not result in a disruption of the trial—for example, by successfully dissuading a
witness from testifying. The likely, not the actual, effect of the misconduct should
be the primary consideration.
Additionally, the trial court may assess whether the defendant has
“intentionally sought to disrupt and delay his trial.” (People v. Clark (1992)
3 Cal.4th 41, 117; see State v. Whalen, supra, 961 P.2d at p. 1055.) In many
instances, such a purpose will suffice to order termination; but we do not hold that
an intent to disrupt is a necessary condition. For example, in Whalen, the
defendant refused to cross the bar during court proceedings on the belief that

doing so “would waive jurisdictional objections.” (Whalen, at p. 1054.) Although
noting that some in propria persona defendants deliberately engage in obstreperous
behavior to “make . . . orderly proceeding[s] impossible” (id. at p. 1055), the
reviewing court upheld the termination of defendant Whalen’s self-representation
because his refusal to conduct his defense from the front of the courtroom
obstructed the court process. (Id. at p. 1056.) Ultimately, the relevance inheres in
the effect of the misconduct on the trial proceedings, not the defendant’s purpose.
In a case of in-court misconduct, the record documenting the basis for
terminating a defendant’s Faretta rights is generally complete and explicit,
without the need for further explanatory proceedings, because there is a
contemporaneous memorialization either by the court reporter recording events as
they transpire in the courtroom or by the trial court describing them for the record.
(See, e.g., People v. Clark, supra, 3 Cal.4th at pp. 113-117; People v. Fitzpatrick
(1998) 66 Cal.App.4th 86, 90-91.) With out-of-court misconduct, however, such
is rarely the case, as the present facts illustrate. Since, at the very least, it is
necessary to preserve a chronology of relevant events for possible appellate
review, it is incumbent on the trial court to document its decision to terminate
self-representation with some evidence reasonably supporting a finding that the
defendant’s obstructive behavior seriously threatens the core integrity of the trial.
Unsubstantiated representations, even by the prosecutor, much less rumor,
speculation, or innuendo, will not suffice. (Cf. People v. Duran (1976) 16 Cal.3d
282, 291; People v. Murphy (2003) 107 Cal.App.4th 1150, 1158.) To this end, the
court may need to hold a hearing or may want to solicit the parties’ respective
arguments with written points and authorities and any evidentiary support on

which they may seek to rely.1 Because circumstances will vary with the facts of
each case, we leave to the trial court’s discretion the ultimate decision as to how
best to proceed in making an appropriate record.
Such a record should answer several important questions. Most critically, a
reviewing court will need to know the precise misconduct on which the trial court
based the decision to terminate. (Cf. Ferrel, supra, 20 Cal.3d 888.) The court
should also explain how the misconduct threatened to impair the core integrity of
the trial. Did the court also rely on antecedent misconduct and, if so, what and
why? Did any of the misconduct occur while the defendant was represented by
counsel? If so, what is the relation to the defendant’s self-representation?2
Additionally, was the defendant warned such misconduct might forfeit his Faretta
rights? Were other sanctions available? If so, why were they inadequate? In most
cases, no one consideration will be dispositive; rather, the totality of the
circumstances should inform the court’s exercise of its discretion.

As with in-court misconduct, the proceeding to consider termination of the
defendant’s Faretta rights for out-of-court acts should not be the subject of a
“motion” by the People, and we caution prosecutors not to overstep their proper
role. (Cf. People v. Dent (2003) 30 Cal.4th 213, 222, fn. 2.) While the prosecutor
can and should inform the court of any instances of misconduct along with
relevant evidentiary substantiation, it is the court’s responsibility to determine the
appropriate sanction or other remedial action. In this regard, the prosecutor should
serve as an adjunct of the court in discharging its duty to control the orderliness
and integrity of the proceedings, not as an advocate for a particular result. As we
observed in reversing the judgment in Dent for Faretta error: “The prosecution
bears some of the responsibility for this reversal. Prosecutors should always be
acutely aware that violation of the right of self-representation is reversible per se.”
Because the necessary facts are not before us, we express no opinion as to
the propriety of a trial court relying on misconduct committed while the defendant
was represented by counsel to deny a Faretta motion in the first instance.

In reviewing the trial court’s decision to terminate a defendant’s right of
self-representation for serious and obstructionist out-of-court misconduct,
appellate courts should apply the same abuse of discretion standard applicable to
terminations for in-court misconduct. (People v. Clark, supra, 3 Cal.4th at p. 115;
see McKaskle v. Wiggins, supra, 465 U.S. at p. 178, fn. 8; United States v. Brock,
supra, 159 F.3d at p. 1079.) While out-of-court acts will not necessarily require
“ ‘a judgment call’ under combat conditions” (Clark, at p. 116), we nevertheless
accord due deference to the trial court’s assessment of the defendant’s motives and
sincerity as well as the nature and context of his misconduct and its impact on the
integrity of the trial in determining whether termination of Faretta rights is
necessary to maintain the fairness of the proceedings.
Having concluded trial courts have discretion to terminate Faretta rights for
out-of-court misconduct, we turn to the particulars of this case.
The trial court revoked defendant’s in propria persona status following an
incident in which defendant’s newly appointed investigator, who was
inexperienced working with self-represented defendants, mistakenly gave him an
unredacted copy of the murder book.3 The material included witness addresses
and telephone numbers, as well as criminal history records, to which defendant
was not entitled. (See Pen. Code, § 1054.2, subd. (b) [pro. per. defendant’s access
to address or telephone number of victim or witness is limited to contact through
duly appointed investigator]; cf. id., § 13302 [misdemeanor to furnish criminal

A “murder book” is a notebook or file compiled by law enforcement and
the prosecution that contains investigative reports, witness statements,
photographs, audio and video tape recordings, and other material related to the

history information to unauthorized person].) When the investigator met with the
prosecutor the next day, the prosecutor realized defendant had improperly received
this material and immediately notified the court. The court ordered the sheriff to
remove all documents from defendant’s jail cell, box and seal them, and deliver
the boxes to the courtroom.
At a subsequent proceeding, the investigator and defendant described for
the trial court what had transpired. The prosecutor argued that defendant’s
improper acquisition of discovery, when considered in light of antecedent attempts
to suborn perjury, fabricate an alibi, and possibly intimidate a prosecution
witness,4 warranted termination of his Faretta rights. In his view, defendant
clearly understood the discovery process and knew he was not entitled to review
these documents but, nevertheless, had taken advantage of the fact a new
investigator had been appointed. Defendant asserted that when the investigator
gave him the murder book, he did not know what he was being handed.
The court indicated that defendant had “already done things that [he was]
not supposed to do. That [he had] already received information that [he] knew [he
was] not to receive. That [he] had that information in [his] possession for a period
of time. This was information that was not to be in [his] possession. . . .” He was
“a very, very manipulative person” and “no longer entitled to [his] pro. per.
privileges.” The court terminated defendant’s right of self-representation and
appointed standby counsel to represent him.
Understandably, since neither the court nor the parties had the benefit of
our analysis, the record here answers few of the questions we have determined are

This conduct had occurred while defendant was represented by counsel
prior to being granted his right to self-representation.

relevant to a proper ruling on termination of Faretta rights. (See ante, at p. 9.) In
light of this, it is difficult, if not impossible, to determine whether defendant’s
out-of-court misconduct seriously threatened the core integrity of the trial.
Compounding this difficulty is the lack of information as to exactly what improper
discovery defendant actually had access to. The trial court ordered all materials in
his cell seized and taken to the court in sealed boxes, but did not examine these
materials or make any attempt to segregate and remove those to which defendant
was not entitled. Thus, it is impossible to determine if some sanction short of
termination would have adequately addressed the problem. (Cf. Illinois v. Allen,
supra, 397 U.S. at pp. 343-344.) In other words, the record lacks a specific
assessment of both the nature and the impact of defendant’s misconduct to
calibrate an appropriate response. (See generally Faretta, supra, 422 U.S. at
pp. 833-834.)
Under the circumstances, we consider it prudent to return the matter to the
trial court for a full hearing as to the reasons for and necessity of terminating
defendant’s right of self-representation.
The judgment of the Court of Appeal reversing defendant’s conviction is
affirmed, and the Court of Appeal is directed to remand the case to the trial court
for a hearing in accordance with our opinion. If, at the conclusion of the hearing,
the trial court finds defendant’s Faretta rights were properly terminated, the court
should reinstate the judgment. If the trial court determines defendant’s
self-representation should not have been terminated, it should order a new trial, if

the People so elect. If the judgment is reinstated, or a new trial ordered, appellate
review will be available to the parties regarding the trial court’s ruling.


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

Name of Opinion People v. Carson

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 109 Cal.App.4th 978
Rehearing Granted


Opinion No.

Date Filed: February 3, 2005


County: Los Angeles
Judge: Charles L. Peven


Attorneys for Appellant:

Chris R. Redburn, under appointment by the Supreme Court, for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief
Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz, Donald E.
De Nicola, William T. Harter and Xiomara Costello, Deputy Attorneys General, for Plaintiff and


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

Chris R. Redburn
Law Offices of Chris R. Redburn
Post Office Box 27332
San Francisco, CA 94127
(415) 512-7601

Xiomara Costello
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2386


Opinion Information
Date:Docket Number:
Thu, 02/03/2005S117568

1The People (Plaintiff and Respondent)
2Carson, David V. (Defendant and Appellant)
Represented by Chris R. Redburn
Attorney at Law
P.O. Box 27332
San Francisco, CA

Feb 3 2005Opinion: Affirmed

Jul 17 2003Petition for review filed
  respondent The People
Jul 18 2003Received Court of Appeal record
  one doghouse
Jul 28 2003Request for depublication (petition for review pending)
  respondent People
Sep 10 2003Petition for Review Granted (criminal case)
  Votes: George, CJ., Kennard, Baxter, Chin, Brown and Moreno, JJ.
Sep 19 2003Received Court of Appeal record
  2 doghouses
Oct 1 2003Counsel appointment order filed
  Upon request for appointment of counsel, Chris Redburn is hereby appointed to represent appellant on his appeal now pending before this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date of respondent's opening brief on the merits is filed.
Oct 2 2003Request for extension of time filed
  to file respondent's brief. [asking to Nov. 9th.]
Nov 5 2003Opening brief on the merits filed
  by counsel for respondent (People)
Nov 5 2003Request for judicial notice filed (in non-AA proceeding)
  by counsel for respondent (People)
Nov 21 2003Request for extension of time filed
  for aplt to file the answer brief on the merits, to 2-2-04.
Dec 9 2003Extension of time granted
  to 1-5-04 for aplt to file the answer brief on the merits.
Dec 23 2003Request for extension of time filed
  for aplt to file the answer brief on the merits, to 2-4-04.
Jan 12 2004Extension of time granted
  Appellant's time to serve and file the answer brief on the merits is extended to and including February 4, 2004. No further extensions will be granted.
Feb 4 2004Answer brief on the merits filed
  by counsel for aplt
Feb 11 2004Request for extension of time filed
  resp (people) request to March 16, 2004 to file reply brief on the merits
Feb 19 2004Extension of time granted
  to 3-16-04 for resp to file the reply brief on the merits. No further extensions of time will be granted.
Feb 24 2004Compensation awarded counsel
  Atty Redburn
Mar 11 2004Reply brief filed (case fully briefed)
  by counsel for respondent (people)
Apr 1 2004Filed:
  Letter from aplt counsel re possible scheduling of oral argument.
Jul 15 2004Motion to clarify/expand order granting review filed
  Expand Issues on Review by appellant. With accompanying brief on the merits.
Sep 15 2004Motion to clarify/expand order granting review denied
  "Application To Expand Issues on Review"filed July 15, 2004, is denied without prejudice to any relief to which defendant might be entitled after this court determines in People v. Black, S126182, and People v. Towne, S125677, the effect of Blakely v. Washington (2004) 542 U.S. ___ [124 S.Ct. 2531] on California law.
Nov 3 2004Case ordered on calendar
  12/7/04 @ 9am., San Diego
Nov 5 2004Request for judicial notice granted
  Respondent's request for judicial notice, filed 11-5-03, is GRANTED
Dec 7 2004Cause argued and submitted
Feb 3 2005Opinion filed: Judgment affirmed in full
  with directions. Majority opinion by Brown, J. ------------------joined by: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, JJ.
Mar 9 2005Remittitur issued (criminal case)
May 11 2005Compensation awarded counsel
  Atty Redburn

Nov 5 2003Opening brief on the merits filed
Feb 4 2004Answer brief on the merits filed
Mar 11 2004Reply 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