Monday, September 29, 2014
C.A. ‘Conditionally’ Reverses Conviction Based on Faretta Violation
By a MetNews Staff Writer
The First District Court of Appeal on Friday held that a trial judge applied the wrong legal standard in stripping a defendant of his pro per status based on numerous instances of unruly conduct in prison, prompting the court to take the unusual step of ordering a “conditional” reversal.
The opinion was authored by Jim Humes, on assignment to Div. Four, where he formerly sat as an associate justice. He is now presiding justice of Div. One.
The trial judge, in revoking permission for defendant Jimmie L. Doss Jr. to represent himself on a charge of assault with a deadly weapon and battery causing severe injury (hitting a fellow prisoner with a broom handle), cited Wilson v. Superior Court (1978) 21 Cal.3d 816. Hume said reliance on Wilson “was misplaced because that case only involved the restriction of pro. per. privileges” such as making case-related phone calls.
The applicable standards are set forth in People v. Carson (2005) 35 Cal.4th 1, he wrote. That case, Hume said, requires the trial judge to consider alternatives to revoking pro per status.
The jurist observed:
“Almost all the out-of-court misconduct related to Doss’s pro. per. status involved his pro. per. telephone privileges, but the court never considered the possibility of revoking or limiting only those privileges….There is no indication in the record that the court sufficiently considered whether more limited sanctions would effectively address Doss’s out-of-court misconduct.”
He pointed out that the right to self-representation under Faretta v. California (1975) 422 U.S. 806 “is atypical in that, unlike many other rights, its violation cannot be excused even if the defendant suffered no prejudice.”
On the other hand, he noted, if Doss were retried, he might be found ineligible for self-representation under the proper standard, Hume said, announcing:
“We conclude that the trial court applied an incorrect standard, and we conditionally reverse the judgment and remand for a new hearing for the court to apply the correct standard. At the hearing, the court may consider any misconduct by Doss since its previous ruling. If the court determines that Doss is not entitled to represent himself in a new trial, the judgment shall be reinstated. If the court determines that Doss is entitled to represent himself, he shall receive a new trial.”
“The record reveals incidents that happened after the court’s ruling that might also justify disallowing Doss to represent himself, including an extremely troubling instance in which he threatened to kill a witness before that witness testified at trial in this case. Although we conclude that we, as a reviewing court, may not rely on postruling conduct to affirm the trial court’s improper revocation of Doss’s pro. per. status,1 nothing in our decision should be construed to preclude the trial court from considering such conduct on remand. The ultimate question that it must answer is whether Doss’s self-representation would threaten the core integrity of a new trial, not whether his pro. per. status was properly revoked over two years ago. If the court finds that Doss is not entitled to represent himself now, it would be pointless for it to order a new trial at which he would be represented by counsel as he was in his last trial.”
The case is People v. Doss, A137203.
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