IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
Ct.App. 2/7 B193831
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BA284590
When a criminal defendant who has waived his right to counsel and elected
to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta)
seeks, during trial, to revoke that waiver and have counsel appointed, the trial
court must exercise its discretion under the totality of the circumstances,
considering factors including the defendant’s reasons for seeking to revoke the
waiver, and the delay or disruption revocation is likely to cause the court, the jury,
and other parties. (People v. Gallego (1990) 52 Cal.3d 115, 163-164.) Here, the
revocation request by defendant, who was being tried jointly with a codefendant,
was not heard until after the jury had been selected and sworn and the
prosecution’s first witness had begun to testify. We hold that considering all the
circumstances, especially defendant’s failure to articulate a compelling reason for
revoking his Faretta waiver and the likely delay and disruption that continuing a
joint trial after the jury was empanelled would cause, the trial court did not abuse
its discretion in denying the revocation request. We reverse the judgment of the
Court of Appeal, which held the denial was an abuse of discretion and was
prejudicial per se because it resulted in the complete denial of defendant’s right to
be represented by counsel.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of the offenses are not important to the issues we address here. In
brief, a paid police informant testified at trial that he bought two rocks of cocaine
from defendant for $20 at a Los Angeles house. A police officer observed the
transaction through binoculars, but was unable to see the actual exchange of
money or drugs. When the police searched the house and its occupants shortly
afterward, they found the $20 bill used to buy the cocaine in codefendant Patricia
Broomfield’s sock and found more rocks of cocaine in the house.
Defendant was charged with one count each of sale of a controlled
substance (Health & Saf. Code, § 11352, subd. (a)) and possession of a controlled
substance for sale (id., § 11351.5). Similar charges were brought against
Broomfield and John Evans.
Defendant was initially represented by court-appointed counsel, but during
pretrial proceedings he substituted retained attorney Paul Cohen. When the case
was called before Judge Wesley on the morning of Wednesday, September 28,
2005, the People and the two codefendants announced they were ready for trial,
but Cohen, who had filed for a continuance, explained he was selecting a jury in
“a six count attempt[ed] murder case” and would therefore not be ready for “about
two weeks.” Cohen informed the court defendant wished to represent himself, and
defendant confirmed that desire.
The court told defendant it would expect him to be ready in two weeks, as
Cohen would have been, but counsel for codefendant Broomfield, Joseph Walsh,
observed that a two-week continuance “runs into my calendar. I have another case
right after this. I am available for this two weeks.” After a series of written and
oral admonishments, defendant reaffirmed his desire to represent himself.1 On his
further statement that he was ready for trial, the court sent the case out for trial
before Judge Mooney.
When the parties appeared before Judge Mooney later that morning, they
discussed possible plea agreements. The court suggested defendant might wish to
offer to plead guilty in exchange for a sentence of five years in prison, a deal the
prosecutor (who had previously offered six years) said he would be willing to
propose to his supervisors. Defendant, however, indicated he thought he should
get diversion or probation, despite several charged prior convictions and despite
his having been on conditional release at the time of his arrest. He also facetiously
suggested that if he went to trial and won the court should give him $5 million “for
wasting my time.” In the afternoon, codefendant Evans made a negotiated plea
and the court began jury selection for the joint trial of defendant and codefendant
During jury selection on the afternoon of September 28, Broomfield’s
attorney, Walsh, brought to the court’s attention that defendant had been asking
him questions. Walsh added that on the basis of “informal” discussions with
defendant, “I think he wants to withdraw his pro per status.” Defendant
responded: “The only reason is cross-examination. People are saying something
and I am not for sure able to, you know.” Addressing defendant, the court noted
he had been “advised of all of these problems” before waiving his right to counsel,
One of the advisements defendant initialed as part of his written Faretta
waiver read: “I understand that depending on the stage of my case, if I ask to give
up my pro per status and request counsel to handle my case, the Court may deny
this request and I may have to proceed with trial without an attorney.”
but continued, “We will see if we can contact your counsel.”2 Walsh pointed out
that defendant’s former attorney “is engaged in I believe an attempted murder trial
and he will be for two weeks.” The court admonished defendant not to “bother”
Walsh with questions during the trial. Defendant said nothing more about
revoking his in propria persona status, and jury selection continued with defendant
On Thursday, September 29, jury selection was completed and the jurors
and alternate jurors were sworn. There was no additional discussion on the record
regarding appointment of counsel for defendant. Defendant neither raised the
issue nor sought a ruling. Proceedings were adjourned until Monday, October 3.
On the morning of October 3, just after the court called for the jurors to
enter, defendant told the court: “I talked to my wife and I need a state appointed
lawyer or public defender. I am going to have to request a public defender and I
am retiring my pro per on the record.” The court responded that it would address
that request at the next break. The court gave opening jury instructions, the
prosecutor and both defendants presented opening statements, and the
prosecution’s first witness began his testimony.
At the first break in trial, the following discussion occurred:
Whether Judge Mooney was referring to Cohen, defendant’s former
attorney, or to some other attorney appointed as standby counsel is unclear. In the
clerk’s minutes for September 28, 2005, after Judge Wesley granted defendant’s
motion for self-representation, appears the note: “The Bar panel is notified and
stand by counsel is to report to Department 134,” which was Judge Mooney’s
courtroom. When Walsh referred to defendant’s having been given advisory
counsel, Judge Mooney corrected him: “Stand-by counsel, not advisory counsel.
And counsel did check in if there was a need for him and was on call. Another
counsel will be on call, but there is a difference between stand-by counsel and
“The Court: The record should reflect that the jurors have exited the
“Just as our jurors were walking in, Mr. Lawrence had made the request to
have an attorney appointed to represent him in this matter. And, Mr. Lawrence,
I will give you a chance to be heard on that request.
“The Defendant: Yes, your Honor. I talked to my wife this weekend and
she said I shouldn’t be doing something. And it doesn’t matter to me, but she
figured I might get a public defender or state appointed attorney or someone.
“The Court: Well, Mr. Lawrence, the court —
“The Defendant: I haven’t been to the law library or nothing either.
“The Court: The court has considered your request and I am going to deny
your request at this time. This was something you were warned about when you
got yourself into this, about you would be at a disadvantage choosing to represent
yourself in this matter.
“I also consider the fact that, you know, the jury has been selected in this
matter, that you also have a codefendant. And it would be disruptive to her case as
well to have someone come in. Your previous attorney, Mr. Cohen, as I
understand, is still engaged in trial and not available, so for all of those reasons I
am going to deny your request.
“And I also note when you filled out this form you were specifically
advised and you initialed here on paragraph H if you ask to give up your pro per
status the court may deny the request and have you proceed to trial without an
attorney and that is where we are now, sir.”
Trial proceeded with defendant representing himself. Defendant was
convicted of both offenses and sentenced to seven years in state prison. At
sentencing, defendant was represented by retained attorney Denise McLaughlin-
The Court of Appeal reversed. The appellate court held denial of
defendant’s request to revoke his counsel waiver was an abuse of discretion.
Inconvenience to the jury, codefendant, and codefendant’s counsel, the court
reasoned, was an insufficient basis for denial given the early stage of trial, the
legitimacy of defendant’s reason for seeking appointment of counsel, and
defendant’s evident inability to represent himself effectively. The court further
held the error had deprived defendant of his right to counsel under the Sixth and
Fourteenth Amendments to the United States Constitution, requiring reversal
without any further showing of prejudice.
We granted the People’s petition for review.
In People v. Windham (1977) 19 Cal.3d 121, 128, we explained that while a
timely, unequivocal Faretta motion invoked the nondiscretionary right to
self-representation, a midtrial motion was “addressed to the sound discretion of
the court.” In People v. Elliott (1977) 70 Cal.App.3d 984 (Elliott), the Court of
Appeal concluded the same was true of a midtrial request to revoke in propria
persona status and have counsel appointed. (Id. at p. 993.) Adapting the
nonexclusive list of factors to consider mentioned in Windham, the Elliott court
opined that a trial court should consider, along with any other relevant
circumstances, “(1) defendant’s prior history in the substitution of counsel and in
the desire to change from self-representation to counsel-representation, (2) the
reasons set forth for the request, (3) the length and stage of the trial proceedings,
(4) disruption or delay which reasonably might be expected to ensue from the
granting of such motion, and (5) the likelihood of defendant’s effectiveness in
defending against the charges if required to continue to act as his own attorney.”
(Elliott, at pp. 993-994.)
This court cited Elliott’s discretion framework favorably in People v.
Gallego, supra, 52 Cal.3d at pages 163-164, adding, however, that ultimately the
trial court’s discretion is to be exercised on the totality of the circumstances, not
strictly on the listed factors. Quoting People v. Smith (1980) 109 Cal.App.3d 476,
484, we explained: “ ‘While the consideration of these criteria [listed in Elliott] is
obviously relevant and helpful to a trial court in resolving the issue, they are not
absolutes, and in the final analysis it is the totality of the facts and circumstances
which the trial court must consider in exercising its discretion as to whether or not
to permit a defendant to again change his mind regarding representation in
midtrial.’ ” (Gallego, at p. 164.) We found no abuse of discretion in the trial
court’s denial of the Faretta revocation request, in light of the defendant’s history
of counsel change requests, the advanced stage of trial (late in the guilt phase of a
capital trial), and the trial court’s inability to find an attorney who would take over
at that stage without the need to declare a mistrial. (Gallego, at pp. 164-165; see
also People v. Lawley (2002) 27 Cal.4th 102, 148-151 [no abuse of discretion in
denial of revocation request at the start of the penalty phase: request appeared to
be an attempt at delay].)3
Courts of Appeal have found no abuse of discretion in People v. Smith,
supra, 109 Cal.App.3d at pages 483-486 (request made after presentation of
People’s case, necessary two-week continuance would have inconvenienced
witnesses, and record suggested the defendant was trying to create an issue for
appeal), and People v. Smith (1980) 112 Cal.App.3d 37, 48-51 (request made on
third day of trial would have required a substantial delay and would have greatly
inconvenienced witnesses). They have found abuses of discretion in Elliott, supra,
70 Cal.App.3d at pages 994-998 (request made before presentation of evidence
began, prompted by prosecutor’s offer of proof regarding an uncharged offense,
and no showing was made that the necessary continuance would disrupt the
court’s calendar or prejudice the prosecution); People v. Cruz (1978) 83
Cal.App.3d 308, 319-322 (request made before assignment to trial department; no
showing of disruption from continuance needed); People v. Hill (1983) 148
(footnote continued on next page)
After considering the totality of the circumstances surrounding defendant’s
revocation request, we conclude the trial court did not abuse its discretion in
denying the request.
We note first that defendant’s remark on September 28, that he was having
trouble with “cross-examination,” did not amount to an unequivocal request to
revoke his in propria persona status. (Cf. People v. Lewis and Oliver (2006) 39
Cal.4th 970, 1002 [“Faretta motions must be both timely and unequivocal.
Otherwise, defendants could plant reversible error in the record”].) On that
occasion, during jury selection, codefendant’s attorney, Walsh, raised the issue by
telling the court defendant had been asking him questions regarding procedures
and “just informal conversations with Mr. Lawrence he has a request now that he
wishes the court — I think he wants to withdraw his pro per status.” (Italics
added.) Defendant responded: “The only reason is cross-examination. People are
saying something and I am not for sure able to, you know.” As appellate counsel
acknowledged at oral argument in this court, defendant’s remark was ambiguous.
It may have meant, “The only reason I am now requesting reappointment of
counsel is cross-examination,” or it may have meant, “The only reason I was
asking Mr. Walsh what to do, and am entertaining the idea of having counsel
reappointed, is cross-examination.” The record reflects no other comments on the
topic by defendant until October 3, when he did unequivocally request revocation.
To the extent the trial court took the September 28 exchange as a request,
the reporter’s transcript reflects the court intended to accommodate defendant if
(footnote continued from previous page)
Cal.App.3d 744, 760-761 (request made before jury selection; no showing of
disruption from the five-day continuance prior counsel needed to be ready); and
People v. Nguae (1991) 229 Cal.App.3d 1115, 1122-1126 (request made after
trial, for purposes of sentencing and new trial motion).
possible, rather than to deny the request, for the court (after taking defendant
briefly to task for changing his mind) said, “We will see if we can contact your
counsel.” Walsh informed the court that defendant’s prior counsel (Cohen) was in
another trial, but after that the court and parties had no additional discussion of the
putative request on the record. There is thus no record of whether the court did try
to reach prior counsel Cohen or the attorney, alluded to but unnamed in the record,
who had been appointed as standby counsel, much less whether either attorney
was actually contacted or what, if anything, either told the court regarding his or
This record does not establish an abuse of discretion. The trial court was
faced with a defendant ambivalent about his in propria persona status, who earlier
the same morning had executed a valid waiver of counsel, insisting he had “no
choice” but to dismiss Cohen because he “ain’t doing nothing.” The court was not
required, simply because defendant indicated he was having trouble cross-
examining prospective jurors, to suspend jury selection and other trial proceedings
until it could be determined whether defendant truly wanted to revoke his waiver
of counsel, whether he was willing to accept Cohen again, or whether another
attorney could be located, and when either attorney could begin trial. The court
did not abuse its discretion in allowing proceedings to continue while the
availability of counsel was explored. Defendant, if he did not want to proceed
without counsel, should have made an express request to revoke his waiver and
pressed for a final ruling at some point during jury selection. The record thus
provides an insufficient basis for us to conclude that defendant made a request to
revoke his in propria persona status, that the trial court denied it, or that the
circumstances rendered any denial an abuse of discretion.4
On October 3, when defendant did make an unequivocal request to revoke
his Faretta waiver, the jury had been sworn and the court, jury, prosecutor,
codefendant’s attorney, and witnesses were ready to start the trial. By the time of
the first recess, when the court could hear defendant’s request, the court had given
its opening jury instructions, defendant and the other parties’ attorneys had made
opening statements, and the prosecution’s first witness had begun his testimony.
Attorney Cohen, who had previously represented defendant, was in another trial
and would not be available for about two weeks. To grant defendant’s request at
that point would have required a lengthy continuance. Keeping the jury together
for that time would have been difficult at best and would likely have resulted in
significant inconvenience to the jurors.
That the clerk’s minutes for September 28 state defendant’s request was
denied does not alter our conclusion. “As a general rule, a record that is in conflict
will be harmonized if possible. (People v. Smith (1983) 33 Cal.3d 596, 599.) If it
cannot be harmonized, whether one portion of the record should prevail as against
contrary statements in another portion of the record will depend on the
circumstances of each particular case.” (People v. Harrison (2005) 35 Cal.4th
208, 226.) We could harmonize the reporter’s and clerk’s transcripts here only by
speculating that the trial court instructed the clerk at some point after the reported
discussion to note defendant’s request was denied. This is conceivable — the
court may have investigated counsel’s availability and concluded the request
should be denied — but it would not support a finding of abuse of discretion, as
the detailed circumstances that led to the court’s conclusion would be unknown.
Speculation aside, we do not consider the clerk’s minutes determinative as a
record of what happened in the reported discussion on September 28. Neither
whether defendant’s remarks amounted to a cognizable request for reappointment
of counsel nor whether the trial court’s actions amounted to a denial is a matter the
clerk can determine contrary to the reporter’s transcript.
The trial court, in denying the request, noted the disruption it would cause
in codefendant Broomfield’s case. This was indeed significant. Broomfield’s
attorney, Walsh, had another trial starting in two weeks; he was unlikely to agree
to recommend that Broomfield consent to a mistrial and continuance. But to
dismiss the jury and declare a mistrial without Broomfield’s consent would have
precluded a later trial, as she had already been placed in jeopardy. The third
alternative, severing the two cases and proceeding immediately with Broomfield’s,
would have resulted in the wasteful duplication of holding two trials involving
many of the same events and witnesses. The Court of Appeal was thus mistaken
in its belief that no significant disruption or untoward delay would have been
threatened if defendant’s request had been granted and a continuance or mistrial
ordered to permit new counsel to prepare a defense.
Against this potential for serious disruption to the trial and to the
administration of justice, the court balanced the reason for defendant’s request.
Notable here was the lack of either definiteness or urgency in defendant’s reasons.
Although during jury selection defendant had indicated he was unsure how to
cross-examine the prospective jurors, at the time of his request to revoke he said
only that his wife had told him he “shouldn’t be doing something” and, while it
did not “matter” to defendant, his wife thought he should get an attorney. But as
the trial court noted, defendant had been extensively warned when he chose to
represent himself about the difficulties self-representation would entail. Nothing
new or unforeseeable had occurred in the interim; rather, over the weekend his
wife evidently had expressed concern that representing himself would be more
difficult than he had anticipated and suggested he reverse his decision. Buyer’s
remorse may not be an illegitimate reason for wanting to revoke a Faretta waiver,
but neither is it a compelling one.
Defendant argues the trial court’s references to the fact he had been fully
advised before choosing self-representation show the court took an improper
“assumption of the risk” approach to the revocation request. We disagree. That
defendant was told of — and affirmed his understanding of — the risks and
disadvantages of self-representation before he waived counsel reflected on his
reasons for later seeking to revoke the waiver. The colloquy tended to show not
that he had suddenly learned he would be at a disadvantage in the trial, but that
with additional input from his wife he had simply reweighed the pros and cons of
self-representation and changed his mind as to the best course. That a defendant’s
motion to waive counsel was incorrectly handled has been held to weigh in favor
of allowing revocation of the waiver. (See People v. Hill, supra, 148 Cal.App.3d
at pp. 761-762 [trial court’s errors in addressing the defendant’s previous motions
for substitution of counsel and self-representation led to error in denying his
request to revoke his counsel waiver].) Here, there was no mishandling. Because
defendant had been fully advised before he chose self-representation, his later
change of mind properly bore less weight in the trial court’s discretionary decision
on the revocation request.
The trial court also erred, defendant contends, in failing to consider on the
record two additional factors mentioned in Elliott, supra, 70 Cal.App.3d 984:
defendant’s history regarding assertion of the right to counsel, and the likelihood
he would effectively represent himself. The record, defendant further argues,
shows he was consistent (except for his single Faretta motion) in wanting
representation, and he was clearly unable to competently represent himself at trial.
But we do not agree with the argument’s premises that the trial court must review
on the record each factor mentioned in Elliott or that any one factor is necessarily
determinative. The standard is whether the court’s decision was an abuse of its
discretion under the totality of the circumstances (People v. Gallego, supra, 52
Cal.3d at p. 164), not whether the court correctly listed factors or whether any one
factor should have been weighed more heavily in the balance.
While a defendant’s proclivity to seek changes in counsel status will
generally weigh against finding an abuse of discretion, for example, “the fact that
a defendant has no such history does not preclude the court from denying the
request if other factors [militate] against it.” (People v. Smith, supra, 109
Cal.App.3d at p. 484.) As far as the record shows, defendant was not trying to
manipulate the system or create an issue for appeal in making his request to revoke
in propria persona status. Nevertheless, he had no compelling reason to do so, and
granting his request would likely have caused serious disruption to the
administration of justice, considerations strongly supporting denial.
Similarly, defendant’s asserted ineffectiveness at self-representation does
not demonstrate an abuse of discretion. Defendant was untrained in the law and
may not have been especially experienced in court procedures, but the same could
be said of many, if not most, in propria persona criminal defendants. That
defendant’s defense would have been more effectively presented (or a better
sentence obtained through a negotiated plea) had he been represented is likely.
But if that fact were determinative, virtually all self-representing defendants would
have the right to revoke their counsel waivers at any time during trial. That is not
the law. (People v. Lawley, supra, 27 Cal.4th at p. 149; People v. Gallego, supra,
52 Cal.3d at p. 164.)
Considering all the circumstances before the trial court, we conclude the
court did not abuse its discretion in denying defendant’s midtrial request to revoke
his Faretta waiver. Accordingly, we need not decide whether an error in denying
the request would have deprived defendant of his constitutional right to
representation by counsel or whether such a deprivation would require reversal
without consideration of prejudice.
The judgment of the Court of Appeal is reversed.
GEORGE, C. J.
DISSENTING OPINION BY KENNARD, J.
While in custody and facing trial on felony drug charges, defendant Ringo
Lawrence gave up his constitutional right to counsel and began representing
himself. (See Faretta v. California (1975) 422 U.S. 806, 819.) That same day,
during jury selection, defendant sought to withdraw his waiver of counsel after he
realized he lacked the skills to question prospective jurors. The trial court denied
the motion. Four days later, defendant again made this request, and the trial court
again denied it, noting that the jury had been sworn and had heard part of the
testimony of the first prosecution witness.
Defendant was convicted and sentenced to seven years in state prison. The
Court of Appeal reversed defendant’s conviction because in its view the trial court
had deprived defendant of his constitutional right to counsel. The majority
reverses the Court of Appeal. I disagree and would affirm that court’s judgment.
In mid-May 2005, a paid police informant bought two grams of cocaine
base at a house in South Central Los Angeles. Two weeks later, on June 1, a
second informant made another controlled buy of cocaine base at the same house.
An undercover officer watching the June 1 transaction saw the informant talk to
defendant and saw defendant enter and then leave the enclosed front porch of the
house, but the officer did not see the two men exchange either money or drugs.
After the June 1 transaction, police officers went to the house, where they
arrested defendant and a woman, Patricia Broomfield, who was found to have
$227 in cash, including a “marked” $20 bill that the police had given to the second
informant. Both defendant and Broomfield were charged with felony narcotics
On Wednesday morning, September 28, 2005, defendant’s attorney, Paul J.
Cohen, appeared in the master calendar court on defendant’s behalf. (Defendant
had previously been represented by a deputy public defender.) Because Attorney
Cohen was about to begin trial in another case, he asked the court for a two-week
continuance. He mentioned that defendant, who was in custody and not present in
court, might want to represent himself. When defendant was brought into court,
he confirmed his desire to “take over” his case.
The trial court said it would grant the two-week continuance that Attorney
Cohen had requested, and it told defendant that if he was going to represent
himself, he too would “be expected to be ready in two weeks.” Defendant
protested that he had been in custody on this case for four months and “all you can
give me” to prepare the case “is two weeks.”
After warning defendant of the pitfalls of self-representation, the trial court
asked defendant to fill out a “waiver of counsel” form. When the prosecutor
mentioned that he would be out of town on October 13 and 14, the court replied
that it would schedule the trial for October 17.
At that point, Attorney Joseph Walsh, representing codefendant
Broomfield, interjected that he did not think defendant “was asking for a
continuance” but was “just asking to represent himself.” The trial judge
responded that if defendant wanted to go to trial that day, “I will send it out” for
The trial court then looked at the “waiver of counsel” form filled out by
defendant, and it noted that defendant had not listed the charged crimes. When the
court asked defendant whether he knew what the charges were, defendant made no
response. The court told defendant that he was charged with the sale of cocaine
base (Health & Saf. Code, § 11352, subd. (a)) and with possession for sale of
cocaine base (id., § 11351.5), and it asked if defendant understood the charges.
When defendant replied that he did, the court said that it would “fill in that section
on here indicating the charges,” and that defendant should initial the boxes
acknowledging his understanding of the charges.
The following colloquy then took place:
The Court: “You have had an opportunity to think about this, is it still your
desire to represent yourself?”
Defendant: “Yes, Sir. I have no choice.”
The Court: “You have a choice; you can wait for Mr. Cohen.”
Defendant: “I had a lawyer before, they ain’t doing nothing.”
The Court: “Is it still your desire to represent yourself?”
Defendant: “Yes, Sir.”
The Court: “Are you ready for trial?”
Defendant: “Yes, Sir.”
The trial court relieved Attorney Cohen from further representation, and it
transferred the matter to department 134 “for trial forthwith.” That afternoon,
defendant’s case was called for trial in department 134. With defendant
representing himself and Attorney Walsh representing codefendant Broomfield,
the court began jury selection. Shortly thereafter, the court excused the jury panel
for the day.
told the trial court that he had a matter to bring to the
court’s attention: He mentioned that once the trial started, defendant, who “was
unfamiliar with the proceedings,” kept asking questions of Attorney Walsh about
jury selection, and Walsh had been “answering [defendant’s] questions
essentially.” Walsh and the trial court then discussed whether the master calendar
judge had appointed advisory or standby counsel for defendant. The court noted
that the minute order reflected the appointment of standby counsel.
Attorney Walsh then said that, based on “informal conversations” with
defendant, “I think he wants to withdraw his pro per status.” Defendant replied:
“The only reason is cross-examination. People are saying something and I am not
for sure able to, you know.”
The trial court admonished defendant not to be “bothering Mr. Walsh
[codefendant Broomfield’s attorney] during the trial.” After observing that
defendant had “filled out a pro per waiver form” and that defendant understood
“what [he] would be up against” in representing himself, the court announced it
was in recess on this case until the next morning. The clerk’s transcript for the
day has this notation: “Defendant’s request to have counsel appointed is denied.”
The next day, Thursday, September 29, 2005, jury selection was completed,
and the trial court swore in the jury, after which it put the case over for four days,
until Monday, October 3. That Monday, as soon as defendant’s case was called
for trial, defendant told the trial court: “I talked to my wife and I need a state
appointed lawyer or Public Defender. I am going to have to request a Public
Defender and I am retiring my Pro Per on the record. On the record.” The trial
court put that matter over until “the next break,” and had the prosecution call its
Just before the noon recess, the trial court took up defendant’s request for
counsel. Defendant explained: “I talked to my wife this weekend and she said I
shouldn’t be doing something. And it doesn’t matter to me, but she figured I
might get a Public Defender or state appointed attorney or someone.” Defendant
added that he had not “been to the law library or nothing either.”
The trial court denied the request for counsel, giving these reasons:
Defendant had been “warned” of the “disadvantage” of choosing to represent
himself; the jury had already been selected; “it would be disruptive” to
codefendant Broomfield’s case to now appoint counsel for defendant; and
defendant’s former counsel, Attorney Cohen, was likely “still engaged in trial and
Defendant, representing himself at trial, was found guilty as charged and
sentenced to seven years in state prison. Defendant appealed. The Court of
Appeal held that the trial court abused its discretion in denying defendant’s request
to withdraw his waiver of counsel and to appoint counsel for defendant, and that
this error required a reversal of the judgment. This court granted defendant’s
petition for review.
Under the Sixth and Fourteenth Amendments to the federal Constitution, a
defendant in a criminal case has a right to representation by counsel as well as the
right of self-representation. (Faretta v. California, supra, 422 U.S. 806, 819.) But
once a defendant knowingly and voluntarily waives the constitutionally
guaranteed right to counsel, that right is no longer absolute. (Menefield. v. Borg
(9th Cir. 1989) 881 F.2d 696, 700; People v. Gallego (1990) 52 Cal.3d 115, 163-
There are many reasons why a defendant may choose to give up the right to
counsel in favor of self-representation. In the words of the federal appeals court in
Menefield. v. Borg, supra, 881 F.2d at page 700: “A criminal defendant may
initially assert his right to self-representation for reasons that later prove unsound.
[He] may doubt the willingness of an appointed attorney to represent his interests.
More often, [he] may have a baseless faith in his ability to mount an effective
defense. The lure of self-representation may, however, exact a significant price;
lost at trial, the defendant may miss important opportunities and even create
gaping holes in his own case.” (Fn. omitted.)
Here, defendant asked to represent himself because he had already spent
four months in jail awaiting trial and, as he saw it, his attorneys (first the deputy
public defender and then Attorney Cohen) had done “nothing” to bring his case to
trial. But almost immediately after giving up his right to counsel, defendant
realized he was not up to the task of representing himself, and he asked to
withdraw his waiver of counsel.
At least two states allow defendants to withdraw their waivers of the right
to counsel and to obtain new counsel “at any time.” (Ex parte King (Ala. 2001)
797 So.2d 1191, 1193 [discussing Ala. Rules Crim. Proc., rule 6.1(c)]; State v.
Rickman (Ariz. 1986) 715 P.2d 752, 756 [discussing Ariz. Rules Crim. Proc., rule
6.1(e)].) But California has no such rule. In this state, when a defendant has
exercised the right to self-representation, a trial court has broad discretion either to
grant or to deny the defendant’s later request to abandon self-representation and to
obtain counsel. (See People v. Gallego, supra, 52 Cal.3d 115, 164-165; People v.
Elliott (1977) 70 Cal.App.3d 984, 994.) The Court of Appeal in Elliott listed some
things that a trial court should consider when ruling on such a motion: (1) whether
the defendant has a prior history of changing back and forth between
representation by counsel and self-representation; (2) the reasons for requesting to
withdraw a waiver of counsel; (3) the stage of the proceedings; (4) the possibility
of disruption or delay in the proceedings; and (5) whether the defendant is likely to
be effective in representing himself. (Elliott, supra, 70 Cal.App.3d at pp. 993-
994.) This court in Gallego found these considerations helpful, but it ultimately
concluded that what the trial court should evaluate was the totality of
circumstances surrounding the motion at issue. (Gallego, supra, 52 Cal.3d at
According to the majority, consideration of the “totality of circumstances”
in this case supports the trial court’s denial of defendant’s requests that he be
allowed to abandon his self-representation and that he be given appointed counsel.
The majority notes that when the trial court addressed the matter on Monday,
October 3, the jury had already been sworn and the prosecution’s first witness had
started to testify. The swearing of the jury was particularly significant, the
majority states, because to reappoint counsel for defendant would have required
dismissal of the jury, thus preventing the prosecution from trying codefendant
Broomfield who, having “already been placed in jeopardy,” would be unlikely to
agree to a mistrial. (Maj. opn., ante, at p. 10.)
The critical date, however, was not Monday, October 3, after the jury had
already been sworn and testimony begun. The critical event occurred four days
earlier, Wednesday, September 28, when Attorney Walsh (who represented
codefendant Broomfield) told the trial court that defendant no longer wanted to
represent himself, a fact that defendant, who was present, confirmed. At that time,
the jury had not been sworn. Thus, the trial court could simply have excused the
prospective jurors, reappointed Attorney Cohen to represent defendant, and put the
case over until October 17, the date that just hours earlier the master calendar
judge had selected as the date on which defendant’s case was to go to trial.
Moreover, to allow defendant to withdraw his counsel waiver and to reappoint
counsel on September 28 would have posed no double jeopardy bar to the
prosecution of codefendant Broomfield, because jeopardy does not attach until the
jury is sworn. (People v. Riggs (2008) 44 Cal.4th 248, 279, fn. 12; People v.
Smith (1983) 33 Cal.3d 596, 600.) Here, that did not take place until the next day,
Thursday, September 29.
Also supporting my conclusion that the trial court abused its discretion in
denying defendant’s request at issue are these considerations: Defendant had no
prior history of alternating between self-representation and representation by
counsel; the reason he gave for wanting counsel was a valid one—he realized that
he lacked the necessary skills to represent himself in the proceeding; his request
was made on the same day the case was sent out for trial, early on in jury
selection, and before anything of significance had happened in the case; little
disruption or delay might reasonably be expected to ensue from granting the
motion, other than the possible need for the two-week continuance the master
calendar judge had already been ready to grant; and defendant’s inability to
understand the jury selection process indicated that he was unlikely to be effective
in defending against the criminal charges. (See People v. Elliott, supra, 70
Cal.App.3d at p. 994.) Surely, these considerations are relevant in determining
whether under the totality of circumstances the trial court abused its discretion, as
I conclude it did, in making defendant go to trial without a lawyer.
Even though the clerk’s transcript of the September 28, 2005, afternoon
proceeding shows that the trial court “denied” defendant’s “request to have
counsel appointed,” the majority concludes that this record notation cannot be
“harmonize[d]” with the reporter’s transcript, which includes no express comment
by the trial court indicating a denial of defendant’s motion, and that therefore, in
the majority’s view, no such motion was made that day. (Maj. opn., ante, at p. 9,
The majority is wrong. A fair reading of the September 28 transcript shows
that Attorney Walsh (who represented codefendant Broomfield) advised the trial
court that defendant wanted to “withdraw his pro per status,” a fact that defendant
immediately confirmed by explaining that he did not know how to “cross-
examine” prospective jurors. The trial court’s awareness of defendant’s desire to
have counsel represent him is clear from its statement in court that defendant had
chosen self-representation when he “filled out a pro per waiver” and understood
“what [he’d] be up against.” It necessarily rejected defendant’s request when,
without further inquiry, it recessed the case for the day. I also note that the trial
court’s denial of defendant’s request for counsel was duly recorded in the court’s
minutes. To summarize, unlike the majority, I see no inconsistency between the
reporter’s and clerk’s transcripts.
A denial of a criminal defendant’s right to counsel affects “the framework
within which the trial proceeds” and thus it is not “simply an error in the trial
process itself.” (Arizona v. Fulminante (1991) 499 U.S. 279, 310.) Accordingly, I
agree with the Court of Appeal that in this case the trial court’s denial of the right
to counsel requires automatic reversal.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Lawrence
Review Granted XXX 158 Cal.App.4th 685
Date Filed: April 30, 2009
County: Los Angeles
Judge: Mark V. Mooney
Attorneys for Appellant:Robert S. Gerstein, under appointment by the Supreme Court, and Heather J. Manolakas, under
appointment by the Court of Appeal, for Defendant and Appellant.
Attorneys for Respondent:Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Lauren E. Dana, Kristofer Jorstad and
Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):Robert S. Gerstein
Law Office of Robert S. Gerstein
12400 Wilshire Boulevard, Suite 1300
Los Angeles, CA 90025
Steven D. Matthews
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Petition for review after the Court of Appeal reversed a judgment of conviction of criminal offenses. This case presents the following issues: (1) Did the trial court abuse its discretion by denying a self-represented defendant's requests for appointment of counsel prior to opening argument? (2) Is the erroneous denial of a motion for reappointment of counsel made after the commencement of trial automatically reversible as structural error?
|Thu, 04/30/2009||46 Cal. 4th 186, 205 P.3d 1062, 92 Cal. Rptr. 3d 613||S160736||Review - Criminal Appeal||closed; remittitur issued|
|1||The People (Plaintiff and Respondent)|
Represented by Steven D. Matthews
Office of the Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA
|2||Lawrence, Ringo (Defendant and Appellant)|
California State Prison at Folsom
P. O. Box 715071
Represa, CA 95671
Represented by Robert S. Gerstein
Attorney at Law
12400 Wilshire Boulevard, Suite 1300
Los Angeles, CA
|3||Lawrence, Ringo (Defendant and Appellant)|
California State Prison at Folsom
P. O. Box 715071
Represa, CA 95671
Represented by Heather Jane Manolakas
Attorney at Law
P.O. Box 2615
|Opinion||Justice Kathryn M. Werdegar|
|Dissent||Justice Joyce L. Kennard|
|Apr 30 2009||Opinion: Reversed|
|Feb 8 2008||Petition for review filed|
Respondent The People Supervising Deputy Attorney General Steven D. Matthews
|Feb 8 2008||Record requested|
|Feb 13 2008||Received Court of Appeal record|
|Feb 29 2008||Answer to petition for review filed|
Ringo Lawrence, appellant Heather J. Manolakas, counsel CRC 8.25b
|Mar 21 2008||Time extended to grant or deny review|
The time for granting or denying review in the above-entitled matter is hereby extended to and including May 8, 2008, or the date upon which review is either granted or denied.
|Apr 9 2008||Petition for review granted (criminal case)|
Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
|Apr 29 2008||Counsel appointment order filed|
Upon request of appellant for appointment of counsel, Robert S. Gerstein is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
|May 6 2008||Opening brief on the merits filed|
Respondent People ~Supervising Deputy Attorney General Steven D. Matthews
|May 30 2008||Request for extension of time filed|
answer brief/merits to 7-7-08 Appellant Ringo Lawrence ~Attorney Robert S. Gerstein
|Jun 6 2008||Extension of time granted|
On application of appellant and good cause appearing, it is ordered that the time to serve and file the appellant's answer brief on the merits is extended to and including July 7, 2008.
|Jul 2 2008||Request for extension of time filed|
30-days, until August 6, 2008, to serve and file appellant's answer brief on the merits Ringo Lawrence, appellant Robert S. Gerstein, counsel
|Jul 7 2008||Extension of time granted|
On application of appellant and good cause appearing, it is ordered that the time to serve and file the appellant's answer brief on the merits is extended to and including August 6, 2008. No further extension is contemplated.
|Aug 7 2008||Answer brief on the merits filed|
Appellant Ringo Lawrence [rule 8.25] ~Attorney Robert S. Gerstein
|Aug 21 2008||Request for extension of time filed|
to file a reply brief on the merits. The People, respondent Steven D. Matthews, Supervising Deputy Attorney General
|Aug 27 2008||Extension of time granted|
On application of respondent and good cause appearing, it is ordered that the time to serve and file the respondent's reply brief on the merits is extended to and including September 21, 2008. No further extension is contemplated.
|Sep 16 2008||Reply brief filed (case fully briefed)|
Respondent People ~Supervising Deputy Attorney General Steven D. Matthews
|Dec 17 2008||Supplemental brief filed|
re: Additional Authorities Respondent People ~Supervising Deputy Attorney General Steven D. Matthews
|Dec 22 2008||Received:|
letter to court re answer brief on the merits ERRATA Ringo Lawrence, appellant by Robert S. Gerstein, counsel
|Dec 22 2008||Supplemental brief filed|
(reply) Appellant Ringo Lawrence Robert S. Gerstein, Attorney
|Jan 6 2009||Case ordered on calendar|
to be argued on Tuesday, February 3, 2009, at 2:00 p.m., in Sacramento
|Jan 26 2009||Filed:|
Supplemental letter brief (response) Ringo Lawrence, appellant by Robert S. Gerstein, counsel
|Feb 4 2009||Cause argued and submitted|
|Apr 29 2009||Notice of forthcoming opinion posted|
|Apr 30 2009||Opinion filed: Judgment reversed|
Majority Opinion by Werdegar, J. joined by George, C.J., Baxter, Chin, Moreno and Corrigan, JJ. Dissenting Opinion Kennard, J.
|Jun 2 2009||Remittitur issued|
|Jun 11 2009||Received:|
Receipt for Remittitur from Court of Appeal, Second Appellate District, Division Seven.
|Jun 15 2009||Returned record|
record returned back to CA 2/7 (attn: Deborah Lee) (2 doghouses & 1 confidential doghouse)
|Sep 15 2009||Returned record|
3 doghouses returned from CA2/4
|Sep 21 2009||Returned record|
3 doghouses to Pat Quinn
|May 6 2008||Opening brief on the merits filed|
|Aug 7 2008||Answer brief on the merits filed|
|Sep 16 2008||Reply brief filed (case fully briefed)|
Answer Brief.pdf (110797 bytes) - Answer Brief
|May 3, 2010|
Annotated by djwolff
This case arose out of defendant’s alleged participation in the possession and sale of cocaine, but the underlying facts are unimportant to the issues on appeal before the California Supreme Court. Defendant, Ringo Lawrence, initially represented by a public defender, subsequently retained attorney Paul Cohen before appearing before Judge Wesley on Wednesday, September 28, 2005. At this initial appearance, after Cohen requested a two week continuance, the defendant informed the court that he wished to represent himself. After running through a series of oral and written questions to insure that the defendant understood the risks and requirements of self-representation, the trial court granted his motion.
Later that afternoon, during jury selection, Joseph Walsh, attorney for Lawrence’s codefendant Patricia Bloomfield, informed the court that based on “’informal’ discussions with defendant, ‘I think he wants to withdraw his pro per status.’” After listening to Lawrence explain that “[t]he only reason is cross-examination,” the court reminded him that he had “been ‘advised of all of these problems’ before waiving his right to counsel.” When Lawrence did not formally request a ruling on his desire to revoke his waiver of the right to counsel the court proceeded with jury selection.
On the following Monday, October 3, immediately after the jurors had been called to enter, defendant Lawrence renewed his request for a lawyer, indicating “I am going to have to require a public defender and I am retiring my pro per on the record.” Given the jury’s presence, the court deferred consideration of his request until its first break and allowed the prosecution to call its first witness. During that break, after listening to Lawrence’s explanation that while “it doesn’t matter to me,” his wife thought it would be a good idea to get a state appointed attorney, Judge Wesley denied his request because not only had Lawrence already waived his right to counsel after being warned of the difficulty of self-representation, but now that the jury had been empanelled, his request would be disruptive to his co-defendant’s case.
The trial proceeded and the defendant was convicted of both sale and possession of a controlled substance and sentenced to seven years in state prison.
Represented by retained attorney Denise McLaughlin-Bennett, the defendant appealed. The Court of Appeals reversed, holding that it was an abuse of the trial court’s discretion to refuse the revocation of the counsel waiver. Specifically, the Court of Appeals held that inconvenience to the jury and codefendant was not a sufficient basis for denial, given that the trial had just started and that Lawrence had a sound reason for seeking revocation. Furthermore, the Court of Appeals held that the trial court’s error had “deprived the defendant of the right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution, requiring reversal without any further showing of prejudice.”
The state appealed and the Supreme Court granted the petition for review for the following two issues.
(1) Whether the trial court abused its discretion by denying a self-represented defendant’s requests for appointment of counsel prior to opening argument? (2) Whether the erroneous denial of a motion for reappointment of counsel made after the commencement of trial is prejudicial per se?
The Supreme Court of California held that the Trial Court did not abuse its discretion by denying the defendant’s attempt to revoke his Faretta waiver of the right to counsel. As a result, the Court reversed the Court of Appeals and upheld the Trial Court’s original sentence.
Because the California Supreme Court found that the Trial Court had not abused its discretion, it did not address whether an erroneous denial “would require reversal without consideration of prejudice.”
REASONING (Werdegar, J.)
The Supreme Court began by noting that the appropriate standard of review was that of an abuse of discretion based on the totality of the circumstances. Under People v. Elliot, 70 Cal.App.3d 984 (1977), a midtrial motion to revoke an unequivocal Faretta motion and have counsel appointed is left to the trial court’s discretion to be exercised based on a nonexclusive list of factors: “(1) defendant’s prior history in the substitution of counsel and in the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensure from the granting of such motion, and (5) the likelihood of defendant’s effectiveness in defending against the charges if required to continue to act as his own attorney.” Nevertheless, as the Court made clear in People v. Gallego, 52 Cal.3d 115, 163-64 (1990), “ultimately the trial court’s discretion is to be exercised on the totality of the circumstances, not strictly on the listed factors.”
Applying that standard to this case, the majority finds the trial court did not abuse its discretion. First, the court finds that Lawrence’s September 28th indication that he was “having trouble with ‘cross-examination,’” did not amount to an unequivocal request to revoke his waiver of the right to counsel. The Court notes that the initial request made by Attorney Walsh was based on his thoughts as a result of mere “informal conversations.” The court noted that aside from his one reply regarding cross-examination, defendant Lawrence never expressly requested new counsel nor did he raise the issue again until October 3rd. Furthermore, the trial court indicated that “We will see if we can contact your counsel.” With no express request from the defendant to revoke his waiver, the Supreme Court held that the trial court “did not abuse its discretion in allowing proceedings to continue while the availability of counsel was explored.”
Defendant’s first unequivocal request to revoke his Faretta waiver was on the morning of October 3, after the jury had been sworn, opening statements had been made, and the first prosecution witness had begun testifying. Agreeing with the trial court, and overturning the Court of Appeals, the Supreme Court of California believed that granting such a request would have resulted in a significant disruption to the trial. In order to agree to Lawrence’s motion, the trial court would likely have had to grant a two week continuance in order to permit Attorney Cohen, Lawrence’s former retained counsel, to finish his other case. However, Attorney Walsh, representing Lawrence’s codefendant Broomfield, could not have agreed to the continuance based on his own schedule. As a result, the motion would have produced either a mistrial, and Broomfield’s subsequent exoneration because jeopardy had already attached, or a severance of the defendants and the holding of wasteful separate trials.
According to the California Supreme Court, the trial court was within its discretion to balance these legitimate concerns against defendant Lawrence’s relatively weak arguments in its totality of the circumstances review. Lawrence’s only argument for revoking his waiver was that his wife wanted him to do it, candidly admitting to the court that it did not “matter’ to him. Nothing new had arisen since Lawrence had knowingly waived his right to counsel the previous week. As the California Supreme Court indicated, “Buyer’s remorse may not be an illegitimate reason for wanting to revoke a Faretta waiver, but neither is it a compelling one.”
Given the strong concerns about the possible disruption of the trial and unfairness to both the jury and the codefendant, with the lack of Lawrence’s compelling rationale for revoking his waiver, the Supreme Court concluded that the trial court “did not abuse its discretion in denying defendant’s midtrial request to revoke his Faretta waiver.” As a result, the Court did not address the question of whether such an error would have been prejudicial per se.
The Court reversed the judgment of the Court of Appeals and remanded the case.
George, C.J., Baxter, J., Chin, J., Moreno, J., Corrigan, J., concurred
DISSENTING OPINION: (Kennard, J.)
In contrast to the majority, Justice Kennard argued in dissent that Lawrence’s initial attempt to revoke his waiver of the right to counsel was sufficiently explicit. Justice Kennard argues that granting a revocation on the 28th, mere hours after the waiver had been issued, would not have imposed any real disruption on the trial court. As the jury had not yet been sworn so they could be dismissed and there would have been no double jeopardy concerns with codefendant Broomfield. Judge Wesley could have simply put the trial over for two weeks, as he had appeared willing to do during the morning session, without imposing a serious burden on any party.
Furthermore, Justice Kennard, relying on some of the other Elliott factors, argues that “Defendant had no prior history of alternating between self-representation and representation by counsel,” and as the majority admits “the reason he gave for wanting counsel was a valid one,” as demonstrated by his “inability to understand the jury selection process….” Therefore, even under a totality of the circumstances balancing the defendant’s motion for new counsel should have been granted, as his legitimate interest in revoking his waiver outweighs the slight burden on the trial court in postponing the trial for two weeks.
Accordingly, Justice Kennard would affirm the Court of Appeals and automatically reverse the trial court’s denial of the right to counsel.