Metropolitan News-Enterprise


Thursday, September 6, 2018


Page 3


Ninth Circuit:

State Appeals Court Did Not Engraft New Requirement on Faretta


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals, in affirming the denial of a petition for a writ of habeas corpus yesterday, rejected the contention that California’s Court of Appeal improperly concocted an exception to the U.S. Supreme Court’s 1975 decision in Faretta v. California.

In a memorandum opinion, a three-judge panel held that the state appellate decision, by then-Justice Thomas E. Hollenhorst of the Fourth District’s Div. Two (now retired), does not engraft on Faretta the requirement that a defendant invoking the right of self-representation be dissatisfied with the assigned lawyer.

The Fourth District opinion affirmed Dalray Kwane Andrews’s conviction of first degree murder and other offenses, finding that San Bernadino Superior Court Judge Ronald M. Christianson was justified in denying a Faretta motion made one court day before the trial was scheduled to commence. Hollenhorst said “it is clear that the defendant was just trying to delay the inevitable (or perhaps build error into the case).”

No Displeasure Expressed

In the course of his discussion, the jurist noted that Andrews had not earlier made any reference to discontentment over representation by Gina Kershaw, a Newport Beach attorney. He wrote:

“In this case…, defendant himself described Ms. Kershaw as a ‘good lawyer,’ thus conceding that he had no quarrel with her performance to that point. Although defendant had not previously changed attorneys, there had been multiple hearings over a long period of time during which defendant, while represented by Ms. Kershaw, sat mute and acquiescent.”

Hollenhorst continued:

“His professed desire for self-representation manifested itself only at the last minute before trial. Furthermore, defendant asked for two months of preparation time—a substantial additional delay and disruption to the court, counsel, the nine witnesses who testified, and the unquestionably substantial summoned jury pool. We presume that the trial court had these points in mind and substantial evidence supports its exercise of discretion. The conclusion that the request was prompted solely by a desire to put off the trial date is amply justified.”

Contention Rejected

In yesterday’s Ninth Circuit decision, the panel—comprised of Circuit Judges Kim Wardlaw, Jay Bybee, and Sandra Ikuta—said:

“We reject Andrews’s argument that the California Court of Appeal added an extra requirement to the Faretta inquiry as to dissatisfaction with counsel. The Court of Appeal considered Andrews’s comment about counsel along with other factors to reasonably conclude that the trial court did not act arbitrarily in implicitly finding the request could only have been ‘designed to create a delay.’”

The judges added:

“Nor was it an unreasonable determination of facts for the Court of Appeal to infer from the record evidence that Andrews’s eve-of-trial Faretta motion was motivated by delay, especially given his statement that he ‘wasn’t ready for trial’ immediately after making the motion.”

The case is Andrews v. Montgomery, No. 16-56630.

The California Supreme Court on Oct. 21, 2015, summarily denied Andrews’s petition for a writ of habeas corpus. Yesterday’s opinion affirms an Oct. 12, 2016 writ denial by U.S. District Court R. Gary Klausner, who accepted and adopted a magistrate judge’s report and recommendation.


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