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Thursday, June 8, 2017


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C.A. Panel Divided on Requisites for Faretta Waiver

Justices Wilhite, Collins Say Written Waivers, Oral Acknowledgment of Signing Them Won’t Suffice; Presiding Justice Epstein Argues to the Contrary


By a MetNews Staff Writer


A divided Court of Appeal division has reversed a conviction for inflicting corporal injury on a cohabitant, finding that the defendant, in initialing boxes on a check-sheet enumerating rights he was forfeiting by representing himself and dangers he was incurring, signing a statement that he understood what he had acknowledged, and orally affirming that he had done so, did not adequately waive his right to an attorney.

Writing for the majority, Justice Thomas Wilhite of this district’s Div. Four said that the “appellant’s request for self-representation was not knowing, intelligent, and voluntary,” so concluding because he was not orally questioned as to whether he comprehended the form he signed. Justice Audrey Collins joined in the opinion.

Presiding Justice Norman Epstein wrote a concurring opinion, agreeing with the majority that there should be a reversal, but solely because the defendant was not warned as to how many years in prison he faced if convicted.

“But for that omission,” he said, “I see no basis for reversal.”

Under Faretta v. California (1975) 422 U.S. 806, self-representation must be allowed, provided the defendant “knowingly and intelligently” waives the benefits traditionally derived from representation by counsel.

The opinion centers on a proceeding in the Los Angeles Superior Court’s criminal master calendar court on Sept. 30, 2015, which was the date on which trial was scheduled for defendant Elijah Joe Ruffin. His assigned counsel, Deputy Alternate Public Defender Leslie Kelley, was otherwise engaged that day and, rather than consenting to a postponement for four court days, Ruffin insisted on representing himself.

Discourages Self-Representation

Los Angeles Superior Court Judge John Cheroske told the defendant:

“You are not that stupid. You have one of the best lawyers in the county.”

Ruffin persisted, and Cheroske enlisted the aid of the defendant’s father, saying:

“Maybe you can talk to him. He wants to commit suicide. He has a good lawyer. He doesn’t know how to be a lawyer. If he wants to I will let him. If you want to talk to him, it’s up to you. You want to talk to him?”

The father spoke with the defendant and reported back to the judge that he “wants a speedy trial.”

During a recess, Ruffin initialed boxes on a form indicating he understood what rights he was waiving and what risks—sometimes referred to as “perils and pitfalls”—he was assuming. He signed the form, underneath the statement:

“I have read, understood and considered all of the above warnings included in this petition, and I still want to represent myself. I freely and voluntarily give up my right to have a lawyer represent me.”

Colloquy With Defendant

The court reconvened, and this dialogue took place:

“THE COURT: Recalling People vs. Ruffin. I have documents by Mr. Ruffin. You understand you are requesting to go to trial today and to represent yourself. Is that your wish?


“THE COURT: You had an opportunity to read the documents submitted to you. Those were the pro. per. policy memorandum of Local Rule 6.41. Did you read that?


“THE COURT: Did you understand it?


“THE COURT: I am holding a document entitled Advisement of Waiver of Right to Counsel of 4 pages. On the right-hand side it has initials E.R. Did you put that in there?


“THE COURT: That stand for Elijah Ruffin?


“THE COURT: Is that your signature?


“THE COURT: You have any questions about anything before I send you to trial forthwith?


“THE COURT: Okay. Sent to Department C, Judge Filer for trial today.”

The case was tried, and Ruffin was convicted.

Wilhite’s Opinion

Writing for the majority, Justice Thomas Wilhite said:

“In the instant case, there is no question that the master calendar court’s oral comments themselves failed to adequately advise appellant of the dangers and disadvantages of self-representation.”

He said that Cheroske’s “inquiry consisted of asking whether appellant initialed and signed the form (he did) and whether he had any questions (he did not).” Wilhite pointed out that Cheroske “did not ascertain on the record that defendant read and understood the written Faretta form.”

 The jurist declared that it was not clear that Ruffin “understood the dangers and disadvantages of representing himself consistent with established case authority.”

Epstein’s Concurring Opinion

Epstein wrote:

“The majority find fault with the trial court’s failure to ask defendant if he understood what rights he was waiving. I do not agree. He initialed specific references to waiving rights some 16 times, and he dated and signed the final substantive paragraph, which reads ‘I hereby certify that I have read, understood and considered and voluntarily give up my right to have a lawyer represent me.’

“Barring some showing that defendant was unable to understand what he was signing or that he had changed his mind about self-representation, this ought to be, and in my opinion is sufficient with respect to the initialed items. The court was not required to remonstrate with defendant about his choice so long as it was reasonably satisfied that defendant understood what he was giving up and the risks of self-representation. The printed form sets most of this out in plain language, avoiding legalese.”

Epstein also noted that Cheroske exhorted Ruffin not to attempt to represent himself.

Agrees With Outcome

Agreeing with the result, he wrote:

“It surely would be unusual if defense counsel had not advised defendant of the punishment he was facing if convicted on all charges. The law is not yet settled on the extent to which the record must show that a defendant was informed of the punishment he or she faced if convicted….The correct rule, in my opinion, is that the record must reflect that the defendant is aware of the magnitude of the penalty, at least in terms of prison time, that may be imposed if found guilty of the charges. Since it does not, I agree that reversal is required.”

The case is People v. Ruffin, 17 S.O.S. 2922.


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