IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
BILLY RAY WALDON,
Defendant and Appellant.
S025520
San Diego County Superior Court
CR 82986
January 23, 2023
Justice Liu authored the opinion of the Court, in which Chief
Justice Guerrero and Justices Corrigan, Kruger, Groban,
Jenkins, and Cantil-Sakauye* concurred.
*
Retired Chief Justice of California, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
PEOPLE v. WALDON
S025520
Opinion of the Court by Liu, J.
A jury convicted Billy Ray Waldon of three counts of first
degree murder (Pen. Code, § 187; all undesignated statutory
references are to this code) and several other crimes: attempted
murder (§§ 187, 664); arson (§ 451); forcible oral copulation and
sexual penetration (former §§ 288a, 289, subd. (a)); rape (§ 261);
two counts of burglary (§ 459); vehicle theft (Veh. Code, § 10851,
subd. (a)); seven counts of robbery (§ 211); carrying a loaded
firearm, an illegal switchblade knife, and a concealed dirk or
dagger (former §§ 12031, subd. (a), 653k, 12020, subd. (a)); and
two counts of animal cruelty (§ 597, subd. (a)). The jury found
true the special circumstances of multiple murders (§ 190.2,
subd. (a)(3)), murder during the commission of burglary and
robbery (former § 190.2, subd. (a)(17)(i), (vii)) and murder to
avoid arrest (§ 190.2, subd. (a)(5)), and it returned a verdict of
death. Waldon’s appeal is automatic. (§ 1239, subd. (b).
Because of errors in granting Waldon’s request to
represent himself, we must reverse Waldon’s conviction and
sentence.
I.
FACTUAL BACKGROUND
A. Guilt Phase
1. Prosecution case
The prosecutor presented evidence that Waldon
committed a series of crimes in the San Diego area over a two-
week period in December 1985.
Dawn Ellerman and her daughter Erin Ellerman were
PEOPLE v. WALDON
Opinion of the Court by Liu, J.
killed in their home, which had been burned by an intense fire.
Autopsies showed that the mother died of a gunshot wound
before the fire and the daughter died of smoke inhalation.
Investigators concluded the fire was set intentionally, and a
relative testified that the Ellerman’s computer was missing. A
witness testified that she saw a man running out of the
Ellerman house as it was burning and identified Waldon as the
man she had seen.
Erin Lab testified that a man carrying a gun and wearing
a dark ski mask broke into her apartment, ransacked the
apartment, and raped her. At a lineup after his arrest the
following summer, Lab identified Waldon as her assailant.
Four women testified about being robbed by a man in a
dark ski mask: Carol Franklin, Nancy Ross, Diane Thomas, and
Julia Meredith each had her purse stolen in the separate
incidents. Thomas and Meredith later identified Waldon as the
man who robbed them.
Responding to the last of these crimes, the Meredith
robbery, police pursued a man in a blue Honda who drove over
medians and onto the wrong side of the road as he sped away
from them. Stopping with a flat tire, the man ran from his car
and evaded the police. One of the officers later identified
Waldon in a lineup as the driver who fled. In the Honda, which
was registered to Waldon, police found a box of bullets as well
as identification and other documents bearing Waldon’s name.
Police also found the Ellermans’ computer in the car, along with
other items belonging to the Ellermans, to Erin Lab, and to
Franklin, Ross, Thomas, and Meredith.
Nearby, just after the police chase, a man in a ski mask
confronted Gordon Wells as he was working on a car. The man
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shot and killed Wells, and shot and wounded John Copeland, a
neighbor who heard shots and went to assist Wells. At a lineup,
Copeland tentatively identified Waldon as the shooter.
A ballistics expert testified that bullet fragments retrieved
from Dawn Ellerman and Gordon Wells were fired from the
same gun and were consistent with the ammunition found in
Waldon’s car.
One morning in June of the following year, Daniel Roman
discovered that his 1965 Mustang was missing. Later that day,
a driver in a car matching the description of Roman’s sped away
from police and fled on foot when they tried to stop him for a
Vehicle Code infraction. Police apprehended and arrested the
man, who gave his name as “Stephen Midas” but was later
identified as Waldon.
2. Defense case
Waldon represented himself at trial. His defense was that
federal agents framed him for the charged crimes to thwart his
efforts to promote world peace, spread new languages, and
advance Cherokee autonomy.
Waldon testified that his grandfather was part Cherokee.
After Waldon’s discharge from the Navy in 1984, he founded
several organizations: the World Humanitarian Church; the
World Esperanto Organization; the World Poliespo
Organization; the United Nations of Autonomous People; and
the Exiled Government of the Cherokee Nation. Waldon
claimed that Poliespo was a “rapid thinking” language that he
invented by combining Esperanto, an international language,
and Cherokee. Waldon also founded the Cherokee Bicycle
Company to market a special bicycle to benefit Cherokee people.
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Waldon claimed that he met a man named Mark Williams
who kept appearing in various locations in Italy, Germany, and
California, where Waldon was pursuing his education and
activism. Waldon believed that Williams and another man were
CIA agents who were monitoring him. Waldon testified that he
tape-recorded some of his conversations with Williams but the
tapes and other evidence proving Waldon’s innocence had been
in a storage unit and were destroyed after he stopped paying the
rental fee.
Waldon testified that in late December 1985, he went to
Imperial Beach to meet with Williams, who expressed interest
in purchasing a bicycle from Waldon. Men wearing ski masks
and shirts that said “Federal Agent” joined Williams in beating
Waldon; they cursed Poliespo and Waldon’s promotion of Indian
autonomy. The men bound Waldon, took him away in their van,
and kept him chained to a chair with a plastic hood over his
head. Waldon managed to escape but learned from a news
article that he was wanted for murder. He lived as a fugitive in
a crawl space under a house in Imperial Beach, fearing that he
would be convicted despite his innocence if he turned himself in.
According to Waldon’s testimony, in June 1986, Williams
and two other men found Waldon in his crawl space and
kidnapped him again. Later, as the men were forcing him into
a Mustang, Waldon was able to drive away and escape. When
police tried to pull him over, Waldon drove away and then got
out of the car and ran. As he ran, he threw down a gun he
claimed Williams put in his clothing. Waldon denied any
involvement in the charged crimes.
An inmate from the San Diego jail, Erwin Spruth, testified
that he met Waldon in December 1985, before either had been
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Opinion of the Court by Liu, J.
arrested. Spruth noticed there was very little in the back of
Waldon’s Honda; he did not see the computer or suitcase that
police later recovered from the car and identified as belonging to
the Ellermans. A few days after Christmas, Spruth received a
call from Mark Williams, who was looking for Waldon.
Birgitta Holenstein Sequoyah testified that she was
Waldon’s wife. She met him in San Francisco in July 1985 after
overhearing a conversation between Waldon and Williams about
American Indian autonomy. She was with Waldon when he
went to meet with Williams. Holenstein stayed in the car at first
but then followed Waldon and saw him being beaten by Williams
and two other men in dark ski masks and shirts indicating they
were federal agents. She heard one of the agents curse Waldon’s
involvement in Cherokee autonomy and Poliespo. She ran away
but later saw Williams take Waldon’s car and drive away in it.
She never saw a computer, suitcase, purses, or a gun in
Waldon’s car.
Answering similar questions about his honesty and
nonviolence, Holenstein and Spruth testified to Waldon’s good
character, as did Waldon’s second wife, aunt, childhood friend,
another inmate from the San Diego jail, and several people who
knew Waldon from his attendance at Esperanto conferences.
An eyewitness to the police pursuit of Waldon’s vehicle
testified to the position of officers when the suspect fled,
indicating that the suspect may have been out of sight of the
officers. A city employee testified about the location of stop signs
on the route of the chase, contradicting the description of a
pursuing officer. And an expert explained factors that
diminished the accuracy of eyewitness identification, including
observing a person when he is running, during periods of high
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stress or danger, and when distinctive features are obscured, for
example, by a ski mask.
3. Prosecution rebuttal
In rebuttal, the prosecutor presented testimony from
additional officers, who described the pursuit of Waldon’s
vehicle, and from Waldon’s first wife, who testified that Waldon
stole and lied when it suited him and made a game of trying to
get away with it.
B. Penalty Phase
The prosecutor presented evidence connecting Waldon to
crimes committed in Oklahoma between November 15 and 23,
1985: a man in a dark ski mask stole Cynthia Tankersley’s
purse and shot her in the head; a male assailant shot Anna
Richman, whose purse was missing from the scene; and a man
in a ski mask accosted Tammy Tvedt and Frank Hensley as they
exited their car and shot them when they did not comply with
his demand for money. Richman died from her wounds, but the
other victims survived. Three ballistics experts testified that
shell casings and bullets recovered from each of the Oklahoma
crimes were fired from the same gun used to kill Ellerman and
Wells in San Diego.
Waldon presented several witnesses who testified about
his good character and humanitarian work promoting Poliespo,
Esperanto, and Native American activities. He also presented
a witness who explained the Esperanto language and its
utilities, and a correctional expert who testified that if sentenced
to life without parole, Waldon would be able to write and engage
in religious activities and would likely adjust well to prison.
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II. WALDON’S SELF-REPRESENTATION
Waldon contends the trial judge erred when he granted
Waldon’s request to represent himself after a different judge had
previously denied the request. We agree.
Before the start of his criminal trial, Waldon moved to
exercise his right of self-representation under Faretta v.
California (1975) 422 U.S. 806 (Faretta). Judge Zumwalt heard
the motion and denied it, finding that Waldon had a mental
disorder that prevented him from rationally perceiving his
circumstances, appreciating the risks and consequences of self-
representation, and appropriately formulating and presenting a
defense. A little over a year later, Waldon filed a second Faretta
motion before a different judge, Judge Boyle. Judge Boyle
granted the motion without considering Judge Zumwalt’s
Faretta denial or the evidence on which it was based. As we
explain, this was an abuse of discretion that deprived Waldon of
the assistance of counsel throughout his criminal trial.
A. Background
Before trial, Waldon submitted a request to the court to
dismiss his lawyers and represent himself. Judge Zumwalt
ordered a psychiatric examination to assess Waldon’s capacity
to waive counsel. The psychiatrist who conducted the
examination, Dr. Kalish, concluded that Waldon did not
appreciate the ramifications of waiving counsel and likely had a
delusional thought disorder. After Dr. Kalish testified that he
also doubted Waldon’s ability to rationally understand the
proceedings or assist counsel, Judge Zumwalt suspended the
criminal proceedings to determine Waldon’s competence to
stand trial. A different judge presided over the competency trial.
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1. Competency trial
Defense counsel presented evidence that Waldon was not
competent to stand trial. Two military doctors described
Waldon’s treatment for severe depression with psychotic
features while he was in the Navy. A battery of psychological
tests from that time reflected severe symptoms and treating
staff concluded that Waldon was very ill; he was later
discharged from service. Dr. Kalish testified that Waldon had a
mood disorder, paranoia, and a thought disorder that impaired
his ability to relate to his attorney and to think clearly and
assess the proceedings against him. Waldon’s mental illness
also caused him to focus on issues unrelated or only marginally
related to his trial; although Waldon’s stated goal was to be
found competent, his behavior reflected incompetence, a factor
indicating his impairment was genuine.
Two experts testified for the prosecution, disputing the
significance of Waldon’s condition in the military and
disagreeing with the conclusions of the defense experts. The
prosecution experts concluded that Waldon was competent to
stand trial and was likely feigning mental illness. The defense
presented testimony from another expert to rebut the
prosecution experts, but the jury found Waldon competent.
Defense counsel filed a petition for writ of mandate to
challenge the competency verdict. After the Court of Appeal
denied the petition, counsel filed a petition for review in our
court, raising several claims of error and seeking a new
competency trial. We granted review and ordered the Court of
Appeal to issue an alternative writ to consider the claims.
2. First Faretta hearing
In February 1988, while the competency petition was
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pending, the parties returned to Judge Zumwalt’s courtroom to
continue addressing Waldon’s motion to dismiss counsel and
represent himself — the original Faretta motion that was
interrupted when Judge Zumwalt declared a doubt about
Waldon’s competence to stand trial. Judge Zumwalt appointed
Ben Sanchez to serve as Waldon’s advisory counsel, and she
agreed to allow Waldon to call witnesses in support of his motion
and to question the experts defense counsel presented to show
that Waldon lacked the mental capacity to waive counsel.
Dr. Kalish, the court’s expert, offered examples of
Waldon’s inability to understand the nature of the proceedings
and gave his opinion that Waldon had a psychotic disorder and
was not competent to waive counsel. On cross-examination by
the prosecutor, Dr. Kalish explained that Waldon’s intelligence
was normal but his paranoia affected his ability to decide
whether to waive counsel: “[I]t clouds and distorts his
perceptions” and leaves him “so inundated by neurotic and other
input” that he is not able to make “decisions clearly, reasoned,
with eyes wide open.” Dr. Kalish also noted that Waldon
expressed contradictory goals simultaneously, which was
indicative “of mental disease, of the confusion, the lack of
appreciation of what’s going on.”
Asked more specifically about Waldon’s understanding of
self-representation, Dr. Kalish said that he was particularly
concerned that Waldon did not understand the responsibilities
of self-representation and did not “appreciate that distinction
between the advisory attorney and the attorney representing
him.” Dr. Kalish explained that normal intelligence can co-exist
with mental illness and dysfunction; he observed that Waldon
was generally able to portray a “veneer” of competence but
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lacked any meaningful understanding of his circumstances and
had no insight into his mental impairment. Dr. Kalish
concluded, based on his conversations with Waldon, that
Waldon was not capable of mounting a rational, coherent
defense. These factors were relevant to whether Waldon was
able to make a reasoned decision to waive counsel; Dr. Kalish
stated that the fact that “he may not do a good job is not the
issue here, as I understand it.”
Waldon sought to call lay witnesses who knew him before
he was arrested and an expert who had been consulting with the
defense, Dr. Koshkarian. Waldon explained that Dr.
Koshkarian “has examined me extensively in the jail, and I have
answered his numerous questions. He is the only psychiatrist
with whom I have cooperated.” The court allowed Waldon to
present five lay witnesses who testified about their background
and interactions with Waldon. Answering identical questions
from Waldon, four of the lay witnesses testified that they
believed Waldon was mentally competent and was able to
“knowingly, voluntarily, and intelligently” waive counsel. The
fifth, Joan Williams, testified that Waldon appeared competent
“[f]rom what I’ve seen today.”
Gloria Fern Renas, one of the five lay witnesses, taught a
community college class that Waldon was attending just before
his arrest. She testified that it was difficult to know about
Waldon’s abilities beyond the scope of the classroom but
nonetheless believed he was able to waive counsel. Joan
Williams taught Waldon in a section related to Renas’s course.
She testified that Waldon was never “rambling or incoherent,”
was not overly loud or boisterous, and was not disruptive in
class.
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Bernice Garrett met Waldon at a meeting of the Esperanto
Association, and he joined her Toastmasters club, a group that
taught public speaking. She had some phone contact with
Waldon after his arrest and visited him once in jail. Garrett said
that Waldon told her he was willing to die for the principle of
defending himself. Responding to questioning from the court,
Garrett testified that she felt Waldon could defend himself
because he was intelligent, able to read and understand legal
material, and able to understand and follow the advice of
counsel.
George Max Brande knew Waldon from the Toastmasters
club and regularly spoke to him on the phone after his arrest.
Brande taught English as a second language and considered
language competence indicative of mental competence. He
noted that Waldon was a competent English and Esperanto
speaker. Brande’s opinion that Waldon was able to represent
himself was based on Waldon’s ability to speak rationally and to
handle “his own affairs.” Brande stated that Waldon felt his
“individual rights” were more important than “life itself.” He
believed that Waldon’s life would not be jeopardized by self-
representation because “he will always have the right to have
co-counsel.”
William Bernard Schwartz knew Waldon from an
Esperanto club. They had seen each other at meetings several
years prior to Waldon’s arrest, and Schwartz had some phone
contact with Waldon after his arrest and visited him once in jail.
The court acknowledged that there was “very little foundation”
for Schwartz’s opinion but rejected defense counsel’s request to
strike the testimony.
Waldon decided not to present testimony from Dr.
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Koshkarian and stated his intent to call M.A. Rose, a
psychologist from Oklahoma instead. Defense counsel noted
that Rose was Waldon’s sister and questioned her professional
credentials. Waldon ultimately did not call Rose or additional
witnesses.
Defense counsel called Dr. Koshkarian to testify. Counsel
had retained Dr. Koshkarian to address mental state defenses
to the criminal charges and potential penalty phase mitigation.
When Dr. Koshkarian talked to Waldon about self-
representation, Waldon believed that he would have counsel to
advise him and he would not have to speak in court. Dr.
Koshkarian testified that Waldon’s judgment was too impaired
to adequately prepare a proper defense. His opinion was based
on 10 or more hours of meeting with Waldon in eight visits,
including two in the past week, and his review of police reports
and Waldon’s psychiatric records. On cross-examination by
Waldon, Dr. Koshkarian stated that in “the strict intellectual
sense,” if presented with a list of the implications, Waldon knew
what it meant to waive counsel. Because Waldon was not
capable of preparing a defense, however, Dr. Koshkarian found
that Waldon was not able to make a knowing and intelligent
decision to waive counsel with a full understanding of the
implications. Dr. Koshkarian testified that Waldon was “not in
any way aware of issues” related to his own defense. When
cross-examining Dr. Koshkarian, Waldon clarified that when he
said that he would not have to speak in court, he was talking
about representing himself “with full counsel.”
Defense counsel also called a clinical psychologist, Dr. Di
Francesca, to testify. Counsel had retained Dr. Di Francesca to
work with the defense and administer psychological tests to
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Waldon. Dr. Di Francesca interviewed Waldon several times
and, based on those interactions and her review of other expert
testimony, Dr. Di Francesca testified that Waldon was not
competent to waive counsel or represent himself. Dr. Di
Francesca acknowledged that some of Waldon’s behaviors were
manipulative and that there was likely a “component of
malingering.” Taking account of those factors, Dr. Di Francesca
nonetheless concluded that Waldon had a mental disorder and
was “deeply disturbed.” Waldon was unable to think clearly
about his criminal case or concentrate on anything related to it;
instead, he focused on “nonrelevant side issues.” It was unclear
to Dr. Di Francesca whether Waldon even understood the
charges against him; he told her he understood them but did not
articulate what they were.
The prosecution and defense also stipulated to Judge
Zumwalt’s consideration of all the expert testimony from the
competency trial.
In a March 1988 ruling, Judge Zumwalt denied Waldon’s
Faretta request. She found that Waldon had a mental disorder
that impaired his free will “to such a degree that his decision to
request to represent himself is not voluntary.” The judge found
that Waldon “does not rationally perceive his situation,” that his
mental disorder affected his “powers of reason, judgment and
communication,” and that Waldon did not “realize the probable
risks and consequences of his action. . . . While Waldon has the
cognitive ability to understand the proceedings, he cannot
formulate and present his defense with an appropriate
awareness of all ramifications.”
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3. Removal of trial counsel
After denying Waldon’s Faretta motion, Judge Zumwalt
also denied defense counsel’s motion to be relieved from
Waldon’s case, finding that counsel’s representation was not
impaired by potential conflicts. In a petition for writ of
mandate, counsel sought to be relieved as trial counsel but to
continue representing Waldon on challenges to the competency
trial that were still pending in the Court of Appeal.
In September 1988, the Court of Appeal granted counsel’s
request to be relieved as trial counsel and denied her request to
continue representing Waldon in the competency proceedings.
The appellate court stated that replacement trial counsel would
be “free to raise any existing or new argument he or she deems
appropriate in the mental health proceeding.” The appellate
court also noted that although “section 1368 subdivision (c
would deprive the trial court of jurisdiction to prosecute Waldon”
until his competence was “finally determined,” it did not
prohibit the trial court from relieving Waldon’s attorney and
“appointing substitute counsel to assure Waldon’s adequate
defense.” The Court of Appeal directed the superior court “to
appoint substitute lead counsel forthwith. Substitute counsel
shall have thirty days following appointment to consult with his
or her client and to file whatever additional briefing he or she
deems necessary in [the section 1368] writ proceedings . . .
pending before this court.”
Once the remittitur issued, the trial judge sent the parties
to the master calendar court to carry out the change in
representation. Although the court relieved trial counsel, the
appointment of replacement counsel was delayed several times
because the master calendar judge recused himself, the case was
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assigned to two other judges, and the first appointed counsel
declared a conflict and inability to work with Waldon.
4. Interim filings and proceedings
In a December 1988 petition filed in propria persona,
Waldon asked to represent himself “with full assistance of
counsel” required to “obey” him. He stated that if his request
were denied, he would seek to waive counsel and represent
himself. In the nearly 100-page petition, Waldon complained of
the “rampant sexual promiscuity” of his “omnivaginal” former
trial counsel, alleging that counsel engaged in domineering
sexual practices; sexual relations with inmates, judges, and
prosecutors; drug dealing and Mafia involvement; and efforts to
have a hit man kill him, among other menacing, unlawful, and
sexually motivated conduct. Waldon claimed that counsel was
“a brilliant and extremely dominating man, trapped in a
woman’s body,” and that she tried to seduce him out of self-
representation by exposing her breasts to him.
In the petition, Waldon explained that his “defense
strategy” involved representing himself and insisting on a
speedy trial that would take the prosecutor by surprise. Waldon
stated that “to cooperate with any attorney at trial with the
petitioner not in ‘pro per’ status would be in violation of the
petitioner’s religion.” After reviewing the petition, the Court of
Appeal ordered that any claims not mooted by its September
1988 ruling could be presented to the superior court “by new
counsel appointed pursuant to our decision.”
During an appearance before Judge Malkus, the newly-
assigned trial judge, advisory counsel Sanchez stated that
Waldon wanted to renew his Faretta motion and that the
appellate court order indicated that Waldon should present it in
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the superior court through his new trial attorney. Judge Malkus
set a hearing for the motion later in the month.
In February 1989, Waldon again appeared in court for the
appointment of counsel. Mark Wolf was present and prepared
to accept appointment as lead trial counsel for all purposes.
Alan Bloom was also present. Bloom stated that he was not
willing to take on full representation but suggested that he could
serve a limited role of helping Waldon pursue self-
representation. Advisory attorney Sanchez informed the court
that Judge Malkus had agreed to reconsider Waldon’s Faretta
motion and had set it for hearing. The prosecutor interjected to
explain that the case was under an order from the Court of
Appeal to appoint trial counsel for all purposes.
The court ordered Sanchez to continue as advisory counsel
and appointed Bloom for the limited purpose of assisting
Sanchez with Waldon’s second Faretta motion. The court did
not appoint Wolf, explaining that Wolf would only be needed if
Waldon’s Faretta motion were unsuccessful. The prosecutor
emphasized the pending appellate review of the competency
trial, stating that the court needed to resolve Waldon’s
competency before addressing Waldon’s request to represent
himself. Rejecting the prosecutor’s argument, the court
reasoned that if Waldon’s Faretta motion were successful, he
could act as his own counsel in deciding how to address the
pending competency challenges.
In subsequent proceedings, the parties made clear the
limited role of attorneys Bloom and Sanchez. Bloom explained
to one judge that he was “appearing for the specialized purpose”
of assisting Waldon “so that he may be named his own counsel.”
After hearing Bloom’s limited role, a different judge remarked,
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“I don’t understand, Mr. Bloom, for the purposes of the record,
your presence here. Who represents Mr. Waldon?” Before a
motions judge who also expressed confusion about Waldon’s
representation, the prosecutor stated that Sanchez and Bloom
had been appointed to help Waldon achieve propria persona
status; there was no disagreement with the prosecutor’s
statement that Waldon “at this point stands unrepresented in
the matter.”
5. Second Faretta hearing
Waldon filed another Faretta motion in June 1989,
making two distinct requests. The first was “a request to
proceed ‘in propria persona’ with full assistance of two counsel
with the restriction that counsel be prohibited from acting or
speaking against the wishes of the defendant and that counsel
be required to follow the directions of the defendant.” The
second request, to be addressed only if the first were denied, was
for Waldon to be named “lead counsel” with the appointment of
“second chair counsel” who would “follow his direction and assist
him in his case.” The accompanying written waiver
acknowledged Waldon’s rights to the assistance of counsel,
speedy trial, and other trial rights; it also listed the
responsibilities of a “lead attorney,” such as selecting a jury and
questioning witnesses, and it indicated that “I understand that
if I am named lead counsel I will not have the benefit of a lead
counsel to do all the forementioned things.”
The June 1989 Faretta motion was initially assigned to
Judge Langford, who denied the first part of Waldon’s request,
the appointment of counsel who would take direction from
Waldon. Turning to the second part of Waldon’s request, to
represent himself with the assistance of “second counsel,” the
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judge observed that it was a problem to let Waldon make a
Faretta request when there was still a pending appeal regarding
his competency. At the urging of advisory counsel Bloom, Judge
Langford nonetheless agreed to proceed. Informed that Waldon
sought to present witnesses to support his motion, the judge
ordered witness statements to be submitted in writing and
continued the hearing.
The case was later assigned for trial to Judge Boyle, who
took up the Faretta hearing where Judge Langford left off.
Appearing before Judge Boyle for the first time, Bloom
explained that he was not appearing as “full-purpose counsel,
but just for the purpose of assisting [Waldon] in his efforts to
become pro per.” The first issue Waldon raised was a
peremptory challenge against Judge Boyle and a challenge for
cause. Denying the challenge, the judge observed that there was
“some 1368 history” that was still pending. Bloom responded
that the competency issues were “very remotely” pending in
“some sorts of writs” but were not currently before the trial
court.
Waldon next sought to have Judge Boyle address problems
Waldon was having obtaining his prior defense counsel’s case
file. In response, the prosecutor summarized the problem in
transferring the case materials: prior counsel had been relieved;
there was no lead counsel appointed to whom prior counsel could
send her file; Bloom was “only an advisory attorney for purposes
of pro per”; and Waldon could not receive the file because he was
not yet representing himself. Judge Boyle responded that
although Bloom and Sanchez had been appointed for a limited
purpose, “it is for a limited purpose in the sense of mission. As
far as I am concerned, both of you are the attorneys for the
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defendant completely and 100 percent at this point in time and
would certainly be a correct repository of any files or information
if you were to request it the next time.”
As the parties went on to discuss scheduling, the
prosecutor noted that there was a “voluminous” case file. He
explained that there had already been one Faretta motion and
that the court might want to review the proceedings related to
it. Bloom responded that Waldon was requesting “that the
Court limit its review to the pending motion. The review of prior
materials, he thinks, we believe, could possibly be prejudicial.”
The court asked Bloom if he joined in Waldon’s request; after
Bloom’s affirmative response, the court granted the request
without discussion. In a later hearing to discuss the status of
the Faretta motion, Judge Boyle stated, “I have — I hate to say
this on the record, but — intentionally kept myself ignorant of
the history of this case. So don’t assume that I have been
following this case along and understand what has happened
before, because I don’t know anything about what’s happened
before.”
Waldon ultimately submitted affidavits from several lay
witnesses who attested to Waldon’s competence and their belief
that he should be allowed to waive his right to counsel. Some of
the witnesses met Waldon at Esperanto meetings or conferences
in 1984 and 1985, and they described interacting with him
during one or two such events; others knew Waldon when he
was taking Esperanto courses in 1983 and 1984; and one witness
met Waldon in 1984 through his younger sister. Bernice Garrett
and Max Brande, who testified in the first Faretta hearing,
again declared their belief that Waldon was competent to waive
19
PEOPLE v. WALDON
Opinion of the Court by Liu, J.
his right to counsel. They both noted that Waldon said he was
willing to die for the principle of defending himself.
Waldon also submitted reports from two experts: Dr.
Giraldi, a psychiatrist, and Dr. Weinstein, a clinical
psychologist. Neither doctor referred to reviewing case or
background material, and both doctors referred to Waldon as
“Steven Midas,” the alias Waldon was using when he was
arrested.
Dr. Giraldi performed a mental status examination of
Waldon in June 1989. Waldon would only answer questions
related to the past year and claimed that he was in good physical
and mental health. Dr. Giraldi stated that Waldon did not
appear to have a thought disorder or psychosis, concluded that
Waldon was competent to waive counsel, and noted that “Mr.
Midas stated he felt he understood his attorney and the nature
of his case.”
Dr. Weinstein met with Waldon in April 1989 and
administered portions of an intelligence test and a test to assess
brain damage. Dr. Weinstein acknowledged that Waldon was
only willing to disclose information he felt was relevant to his
capacity to defend himself; Waldon had not revealed, for
example, the reason he was in custody or the crimes he was
facing. Dr. Weinstein reported that Waldon’s intelligence was
above average and found no indication of psychosis or brain
damage that would prevent Waldon from representing himself.
Dr. Weinstein described Waldon as “an intelligent man who is
clearly aware of the consequences of his choice.” He stated that
Waldon “expressed a clear awareness that even though his
choice to defend himself might not be the best possible
alternative, it is his preference, ultimately stating ‘I’ve always
20
PEOPLE v. WALDON
Opinion of the Court by Liu, J.
been like that . . . if you want something done right, do it
yourself.’ ”
At the hearing on Waldon’s second Faretta motion, the
trial judge characterized Waldon’s affidavits as presenting “in
summary fashion, a testament to [Waldon’s] intelligence and
competence.” The judge noted that it was “a remarkable group
of documents by people of various professions in support of Mr.
Waldon.” The judge then advised Waldon of some of the
disadvantages of self-representation: Waldon’s ignorance of the
law or procedural difficulties would not be an excuse for delay;
he would be subject to the same rules as any lawyer; he would
be required to cooperate with the court and accept its rulings;
and he would be facing prosecutors who were far more
experienced in the law. The judge stated, “It’s very clear —
everybody in the business knows it — that self-representation is
consistently, if not always, a detriment to the defendant’s
preparation of his own defense. [¶] Do you understand that
that’s our opinion Mr. Waldon?” To each of the court’s
admonitions, Waldon responded, “Yes, your Honor.” The judge
then noted, “There is no question in this Court’s mind of the
defendant’s ability to read and write, listen, be polite, and
cooperate if he chooses to do so.” After a brief discussion to
ensure that Waldon’s June 1989 waiver was on file, the judge
granted Waldon’s request to represent himself.
B. Discussion
1. Waiver
The Attorney General contends that Waldon waived his
claim by inviting any error in the reconsideration of Judge
Zumwalt’s Faretta denial. “ ‘The doctrine of invited error is
designed to prevent an accused from gaining a reversal on
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PEOPLE v. WALDON
Opinion of the Court by Liu, J.
appeal because of an error made by the trial court at his behest.
If defense counsel intentionally caused the trial court to err, the
appellant cannot be heard to complain on appeal. . . . [I]t also
must be clear that counsel acted for tactical reasons and not out
of ignorance or mistake.’ ” (People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 49.) To evaluate the question of invited
error, we first consider the nature of Waldon’s representation in
the second Faretta proceeding.
As noted, Sanchez served as advisory counsel, and the
trial court later appointed Bloom to assist him. Both attorneys
made clear that their role was to carry out Waldon’s wishes as
he pursued self-representation. The Attorney General suggests
that because the attorneys made appearances for Waldon and
filed motions on his behalf, they represented Waldon in his
renewed Faretta motion. But attorneys serving in an advisory
capacity “do not ‘represent’ the defendant.” (People v. Lightsey
(2012) 54 Cal.4th 668, 692.) Our precedent has “loosely used” a
variety of terms to describe the assistance counsel may provide
to a defendant who is directing the defense. (People v. Hamilton
(1989) 48 Cal.3d 1142, 1164, fn. 14.) In some circumstances, the
attorney advises the defendant and does not participate in the
proceedings; in others, the “attorney shares responsibilities with
the defendant and actively participates in both the preparation
of the defense case and its presentation to a degree acceptable
to both the defendant and the attorney and permitted by the
court.” (People v. Moore (2011) 51 Cal.4th 1104, 1119, fn. 7.
Ultimately, however, “there are only two basic categories of
representation”: one in which the defendant is represented by
counsel who “is at all times in charge of the case” and one in
which the defendant “assumes primary control” of the defense.
(Hamilton, at p. 1164, fn. 14.) Tactical decisions to invite error
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PEOPLE v. WALDON
Opinion of the Court by Liu, J.
cannot be assigned to Sanchez and Bloom when their role was
to raise issues and requests at Waldon’s direction. In other
words, Sanchez and Bloom were not in charge of the second
Faretta motion; Waldon was. Without an attorney appointed for
all purposes, there was no counsel to ensure, for example, that
pending claims of error regarding Waldon’s competence to stand
trial were fairly resolved before any reconsideration of his
Faretta motion.
The question then becomes whether we attribute invited
error to Waldon’s efforts, while his competence was still in
question, to have the trial court disregard the prior Faretta
denial. Before Waldon’s second Faretta motion, we had directed
the Court of Appeal to issue an alternative writ regarding errors
in Waldon’s competency trial. The issuance of our order
“necessarily indicated that [defendant] had made a prima facie
showing of [error], or a possible [error].” (Coy v. Superior Court
(1962) 58 Cal.2d 210, 221; see also Gomez v. Superior Court
(2012) 54 Cal.4th 293, 301.) In response to the alternative writ,
the trial court was required to provide Waldon with a new
competency trial or to show cause why a new trial was not
warranted. (See Code Civ. Proc., § 1087.) An additional order
from the Court of Appeal mandated the appointment of counsel
for all purposes to address the pending competency issues. None
of those actions had taken place at the time Waldon pursued his
second Faretta motion and urged the trial court to ignore the
prior competency and Faretta proceedings. Defendants do not
waive a claim of error when they have been permitted to control
the defense while the question of their competence is still
pending. (People v. Lightsey, supra, 54 Cal.4th at p. 696.) When
the “ ‘evidence indicates that the defendant may be [mentally ill]
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PEOPLE v. WALDON
Opinion of the Court by Liu, J.
it should be assumed that he is unable to act in his own best
interests.’ ” (Id. at p. 697.
Further, it is questionable whether waiver principles
apply to a court’s inquiry into a defendant’s knowing and
voluntary waiver of the right to counsel. (Cf. People v. Palmer
(2013) 58 Cal.4th 110, 116 [it is inappropriate to apply waiver
and forfeiture principles to a requirement whose purpose is to
ensure that constitutional standards of voluntariness and
intelligence are met].) Despite Waldon urging the trial court to
ignore the prior competency and Faretta proceedings, the court
had a duty to protect Waldon’s right to counsel and to “satisfy
itself that the waiver of his constitutional rights [was] knowing
and voluntary.” (Godinez v. Moran (1993) 509 U.S. 389, 400
(Moran); see also People v. Koontz (2002) 27 Cal.4th 1041, 1069
[“ ‘the federal Constitution requires assiduous protection of the
right to counsel’ ”].) “This protecting duty imposes the serious
and weighty responsibility upon the trial judge of determining
whether there is an intelligent and competent waiver by the
accused.” (Johnson v. Zerbst (1938) 304 U.S. 458, 465.
In sum, requests that Waldon made when his competence
was in question, when he did not have counsel appointed to
protect his interests, and when the trial court was obligated to
ensure his knowing and voluntary waiver of counsel, could not
have waived and did not waive his claim that the trial court
erred in overturning Judge Zumwalt’s Faretta denial.
2. Authority to reconsider the Faretta denial
A trial judge ordinarily may reconsider his or her own
“ ‘prejudgment’ ” rulings. (People v. Konow (2004) 32 Cal.4th
995, 1020 (Konow).) Code of Civil Procedure section 128,
subdivision (a)(8) authorizes a court to “amend and control its
24
PEOPLE v. WALDON
Opinion of the Court by Liu, J.
process and orders so as to make them conform to law and
justice.” This provision applies to criminal cases as well. (See
People v. Jackson (1996) 13 Cal.4th 1164, 1205.) There are
limits, however, on the authority of one superior court judge to
set aside the order of another judge of the same court. “[U]nder
article VI, section 4, of the California Constitution, ‘one [judge
or] department of the superior court cannot enjoin, restrain, or
otherwise interfere with the judicial act of another [judge or]
department of the superior court.’ ” (Konow, at p. 1019.) This
rule prevents a trial court judge from acting as a “ ‘one-judge
appellate court’ over another judge.” (Id. at p. 1021.) There are
some exceptions (see Konow, at p. 1021; People v. Mattson (1990
50 Cal.3d 826, 849), but none apply here.
Citing People v. Riva (2003) 112 Cal.App.4th 981, 993, the
Attorney General contends the trial court properly considered
Waldon’s second Faretta motion because of a change in
circumstances. The court in Riva held that pretrial rulings on
the admissibility of evidence could be reviewed by another judge
following a mistrial if there was a “highly persuasive reason for
doing so.” (Riva, at p. 992.) Among the factors the Riva court
identified as relevant to reconsideration was “whether there has
been a change in circumstances since the previous order was
made.” (Id. at p. 993, fn. omitted.) Authority for this factor
included, by way of analogy, Code of Civil Procedure section
1008, subdivision (b), which provides for reconsideration “upon
new or different facts, circumstances, or law.” (See Riva, at
p. 993, fn. 33.
According to the Attorney General, the change in
circumstances justifying reconsideration here was the Court of
Appeal issuing orders that (1) relieved trial counsel and (2
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PEOPLE v. WALDON
Opinion of the Court by Liu, J.
stated that other issues regarding representation should be
addressed in the trial court by new counsel appointed for all
purposes. These orders do not represent a relevant change in
circumstances because they had no bearing on the issue to be
reconsidered — whether Waldon was competent to validly waive
his right to counsel and represent himself. Moreover, when
Waldon presented his second Faretta request, he did not claim
there was any change in circumstances; he simply asked Judge
Boyle to ignore the prior proceedings.
Even if we assume that a second judge could exercise
discretion to reconsider the denial of Waldon’s Faretta motion
under some circumstances, we need not decide the precise
standard governing that authority, whether by analogy to Code
of Civil Procedure section 1008 or otherwise. Judge Boyle knew
that a prior Faretta ruling by another judge posed a conflict with
his ruling, but he did not consider the basis of the prior decision
and ignored the underlying record. It is sufficient for purposes
of this case to state the obvious: When a trial court exercises its
authority to reconsider another judge’s ruling, the trial court
must, at minimum, consider the basis for the prior ruling. (See
Konow, supra, 32 Cal.4th at p. 1019 [“ ‘ “ ‘An order made in one
department during the progress of a cause can neither be
ignored nor overlooked in another department.’ ” ’ ”].
Judge Boyle abused his discretion by overturning Judge
Zumwalt’s Faretta denial while intentionally ignoring her
findings and the bases for her decision, and by ignoring relevant
evidence, including testimony from three mental health experts
that caused Judge Zumwalt to conclude that Waldon was not
competent to validly waive counsel or represent himself. To
overturn the Faretta denial in this manner — without regard for
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PEOPLE v. WALDON
Opinion of the Court by Liu, J.
key facts, findings, and legal principles — was “arbitrary or
irrational.” (In re White (2020) 9 Cal.5th 455, 470.) Waldon
claims that the trial court’s arbitrary reversal also violates due
process, but we do not reach that constitutional question. (See
Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1102 [“we avoid
resolving constitutional questions if the issue may be resolved
on narrower grounds”].
3. Effect of the error
The Attorney General asserts that the decision to overturn
Judge Zumwalt’s Faretta denial was harmless because it was
based on Waldon’s knowing, intelligent, and voluntary waiver of
counsel. Even if we were to assume that a proper Faretta
hearing could remedy the error here, the record does not support
the assertion that Judge Boyle conducted such a hearing.
A two-part inquiry determines whether a defendant may
waive the right to counsel: (1) The defendant must be competent
to stand trial, and (2) the trial court must “satisfy itself” that the
waiver of “constitutional rights is knowing and voluntary.”
(Moran, supra, 509 U.S. at pp. 400–401.) In Moran, the high
court explained that “the purpose of the ‘knowing and voluntary’
inquiry . . . is to determine whether the defendant actually does
understand the significance and consequences of a particular
decision and whether the decision is uncoerced.” (Id. at p. 401,
fn. 12; accord, People v. Koontz, supra, 27 Cal.4th at pp. 1069–
1070.) When there is reason to doubt a defendant’s mental
capacity to waive counsel, the court’s determination should be
made after a careful inquiry into the defendant’s competence,
including consideration of psychiatric evidence. (People v.
Wycoff (2021) 12 Cal.5th 58, 90; People v. Teron (1978) 23 Cal.3d
103, 113–114.
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PEOPLE v. WALDON
Opinion of the Court by Liu, J.
The Attorney General argues that nothing in the record
suggested that Waldon was mentally incapable of
understanding the rights he asked to waive. We are not
persuaded. Dr. Kalish testified that Waldon was not able to
make rational decisions or focus on coherent objectives because
he was inundated with paranoid thoughts. Drs. Kalish, Di
Francesca, and Koshkarian each testified that Waldon was
unable to contemplate potential defenses or the implications of
proceeding without counsel. Expert reports that found Waldon
competent to waive counsel did not address the contrary
findings or resolve them in any way. At the very least, these
conflicting expert reports warranted further inquiry into
Waldon’s capacity to appreciate the risks of waiving his right to
counsel.
The Attorney General contends that reports and
testimony from Drs. Kalish, Di Francesca, and Koshkarian had
limited relevance because “[m]ore than two years had passed
since the earlier psychological evaluations, and Waldon had
refused to cooperate with the appointed evaluators.” But
Waldon did cooperate with each of the experts, particularly with
Dr. Koshkarian, who met with Waldon several times in 1987
and twice in March 1988. The record does not show that this
evidence lacked relevance in 1989, when the trial court
considered Waldon’s second Faretta motion. At any rate, the
trial judge could not consider the relevance of prior evaluations
because he did not look at them or even know they existed.
The scope of a trial court’s inquiry into a defendant’s
ability to validly waive counsel “depends on the particular facts
and circumstances of the case.” (People v. Burgener (2009) 46
Cal.4th 231, 242.) In People v. Taylor (2009) 47 Cal.4th 850, as
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PEOPLE v. WALDON
Opinion of the Court by Liu, J.
here, a judge initially denied the defendant’s Faretta request,
finding that he was not competent to waive counsel. (Taylor, at
p. 859.) After competency proceedings and a determination that
the defendant was competent to stand trial, a different judge
granted the defendant’s renewed Faretta request, considering
the previous ruling, expert reports, and an extended colloquy
with the defendant. (Taylor, at pp. 878–879.) Finding that the
record supported the ruling, we noted that the trial court
“elaborated at length” on the disadvantages of self-
representation, considered particular difficulties the defendant
might have, such as presenting mitigation evidence, and
reached a conclusion that did not contradict the expert findings.
(Id. at p. 879.) Furthermore, the defendant “did not simply reply
to the court passively or monosyllabically” but engaged with the
court, asked questions, and demonstrated his understanding of
the risks and consequences of his decision. (Id. at p. 878.
Here, the reasons Waldon gave for wanting to represent
himself offered no indication that he “actually” appreciated the
“significance and consequences” of that decision. (Moran, supra,
509 U.S. at p. 401, fn. 12.) He explained in a public filing that
his trial strategy consisted of surprising the prosecutor by
insisting on a speedy trial; he said he needed to bring criminal
charges against his former trial counsel; he told others he was
prepared to die for the principle of self-representation; he
claimed that the assistance of counsel violated his religion.
Further, Waldon’s behavior — including his preoccupation with
alleged conspiracies and wrongdoing unrelated to the criminal
trial, and his inability or unwillingness to focus on potential
defenses — did not signal an appreciation of the dangers and
disadvantages he faced.
29
PEOPLE v. WALDON
Opinion of the Court by Liu, J.
Notably, three experts who examined Waldon and
reviewed background and case material testified about Waldon’s
mental impairment and inability to grasp the significance of
waiving counsel. Although two new experts concluded that
Waldon was competent to waive counsel, both acknowledged
that Waldon limited the information he was willing to provide,
and neither doctor considered the prior expert opinions,
Waldon’s psychiatric history and filings in propria persona, or
other case information. (Cf. People v. Lewis and Oliver (2006
39 Cal.4th 970, 1048 [court could properly discount expert
opinion regarding defendant’s competence when the expert did
not consider the defendant’s psychiatric history and filings in
propria persona and did not address contrary opinions and facts
presented by other experts].
Despite significant questions about Waldon’s mental
capacity, and unlike the extended colloquy in Taylor, Judge
Boyle spoke only briefly to Waldon, comprising just two pages of
transcript. In response to standard advisements — that his
propria persona status would not be an excuse for delay, that he
would be subject to the same rules as any lawyer, that opposing
counsel was more experienced, and that self-representation is
usually detrimental to preparing a defense — Waldon’s only
response was “Yes, your Honor.” Then, without reviewing any
portion of the record, the judge granted Waldon’s Faretta
request, stating, “There is no question in this Court’s mind of
the defendant’s ability to read and write, listen, be polite, and
cooperate if he chooses to do so.” Given the circumstances we
have recounted, Judge Boyle’s inquiry was “plainly insufficient”
to establish Waldon’s “understanding of the dangers and
disadvantages of self-representation” and his knowing and
30
PEOPLE v. WALDON
Opinion of the Court by Liu, J.
voluntary waiver of the right to the assistance of counsel.
(People v. Burgener, supra, 46 Cal.4th at pp. 241–242.
By overturning Judge Zumwalt’s Faretta denial, the trial
court deprived Waldon of two distinct protections afforded by
her ruling: (1) protection of Waldon’s constitutional right to
counsel after finding that Waldon had a mental disorder that
prevented him from understanding the significance and
consequences of waiving that right (see People v. Koontz, supra,
27 Cal.4th at p. 1069); and (2) protection of Waldon’s right to a
fair trial after a finding that he was unable to present a defense
because of his mental impairment, a basis for denying self-
representation within the judge’s discretion (Indiana v.
Edwards (2008) 554 U.S. 164, 176–177; People v. Johnson (2012
53 Cal.4th 519, 533; People v. Taylor, supra, 47 Cal.4th at p.
878). Judge Boyle did not establish Waldon’s valid waiver of
counsel before overturning Judge Zumwalt’s ruling, nor did he
consider or address Waldon’s competence to present a defense.
The proceeding on Waldon’s second Faretta request therefore
did not remedy the deprivation of counsel as the Attorney
General suggests.
The effect of the trial court’s error, the “total deprivation
of the right to counsel at trial,” is among the errors “which defy
analysis by ‘harmless-error’ standards.” (Arizona v. Fulminante
(1991) 499 U.S. 279, 309.) “Whether a violation of state law or
federal constitutional law, structural error results in per se
reversal.” (People v. Gonzalez (2018) 5 Cal.5th 186, 196; see also
People v. Anzalone (2013) 56 Cal.4th 545, 554.) Because this
error requires reversal of the judgment, we do not consider
Waldon’s remaining claims of error.
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PEOPLE v. WALDON
Opinion of the Court by Liu, J.
CONCLUSION
We reverse the judgment in its entirety and remand the
case to the trial court for further proceedings.
LIU, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
CANTIL-SAKAUYE, J.*
*
Retired Chief Justice of California, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
32
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Waldon
Procedural Posture (see XX below
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
Opinion No. S025520
Date Filed: January 23, 2023
Court: Superior
County: San Diego
Judge: David M. Gill
Counsel:
Michael J. Hersek and Mary K. McComb, State Public Defenders,
Karen Hamilton and Hassan Gorguinpour, Deputy State Public
Defenders, for Defendant and Appellant.
Kamala D. Harris, Xavier Becerra and Rob Bonta, Attorneys General,
Dane R. Gillette, Gerald A. Engler and Lance E. Winters, Chief
Assistant Attorneys General, Julie L. Garland and James William
Bilderback II, Assistant Attorneys General, Holly D. Wilkens, Arlene
A. Sevidal, Kristine A. Gutierrez and Collette C. Cavalier, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Hassan Gorguinpour
Deputy State Public Defender
770 L Street, Suite 1000
Sacramento, CA 95814
(916) 322-2676
Collette C. Cavalier
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9201
Opinion Information
| Date: | Docket Number: |
| Mon, 01/23/2023 | S025520 |
