Metropolitan News-Enterprise

 

Tuesday, April 17, 2018

 

Page 4

 

Court of Appeal:

Self-Representation Can’t Be Ended Based on Incompetence

 

By a MetNews Staff Writer

 

The Third District Court of Appeal has held that a criminal defendant was wrongfully stripped of his Faretta right of self-representation where the action was based solely on his ineptitude.

Justice Ronald B. Robie wrote the opinion in People v. Alvarez, C08536. Filed Friday, it was not certified for publication.

The opinion reverses the conviction of Blackie Florencio Alvarez who, after his pro per privilege was revoked, and while represented by an attorney, pled no contest plea to carrying a concealed dirk or dagger and admitted that the offense constituted a probation violation.

Denial of the right conferred by the U.S. Supreme Court’s 1995 decision in Faretta v. California requires automatic reversal under the California Supreme Court’s 2009 decision in People v. Butler.

The revocation was ordered by Amador Superior Court Judge Renee Day. A motion pursuant to Penal Code §995, challenging the decision at the preliminary hearing to bind Alvarez over for trial, had been scheduled to be heard by her on June 8, 2017, but no such motion had been filed. Alvarez told her on that date that, instead, he had filed a writ petition.

Representation Was Ineffective

“Mr. Alvarez, the Court granted your request to represent yourself,” Day said. “Along with that right comes the responsibility to provide effective representation for yourself.”

He responded:

“Absolutely.”

Day advised:

“And the Court finds that that’s not happening.”

Barring his further self-representation, she did not elaborate on the reasons.

Robie quoted Justice Carol A. Corrigan as saying, in Butler:

“Defendants untrained in the law may well provide themselves with inept representation. But Faretta gives them the right to make a thoroughly disadvantageous decision to act as their own counsel, so long as they are fully advised and cognizant of the risks and consequences of their choice.”

Delay, Obstruction Asserted

Robie wrote:

“The People urge there is ample evidence in the procedural record from which this court may find the trial court impliedly determined defendant was intentionally delaying and obstructing proceedings, thus impinging on the orderly administration of justice.

“The court’s review of the record reveals no such evidence. While defendant’s self-representation lasting a few months exhibited his lack of legal training, including mistakes such as an untimely attempt to disqualify the judge pursuant to Code of Civil Procedure section 170.6 and difficulty confining his cross-examination questions to the scope of direct examination, we see nothing from which this court could infer that defendant engaged in the kind of misconduct that threatened to ‘impair the core integrity’ of the proceedings.”

The Office of Attorney General drew attention to a comment by Alvarez following Day’s ruling that could be construed as a threat to her. Robie said:

“The People also argue defendant’s hostility toward the judge justifies the revocation of his pro. per. status. After revocation and seemingly in response to the People’s inquiry regarding the trailing probation violation, the defendant stated: ‘Guard yourself, sister.’ Putting aside the ambiguity of the statement and to whom it was made, it is irrelevant to the propriety of the court’s completed ruling.”

Election Challenge

Day, appointed by Gov. Jerry Brown in 2015, is presently facing an election challenge from criminal defense attorney Robert C. Schell who argues on his Facebook campaign page that the incumbent should be defeated because she is a gubernatorial appointee.

He sets forth:

“We have the right to vote, so why should we let Sacramento politicians choose our local judges. The governor’s office uses appointments to deprive us of our judicial elections. The process undermines local choice by giving the governor’s appointees advantages over local citizens, like shielding them from scheduled elections for two years, so that they can be described as an incumbent. Additionally, and unlike other appointees to elected office, if no other citizen signs up to run against them, then their office is removed from the ballot, and they are elected by operation of law. This process keeps local voters uninformed, and after many years of this process, most citizens don’t even know we have the right to elect our own judges.”

 

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