Tuesday, April 21, 2020
Court of Appeal:
Dissenting, Justice Tangeman Says Defendant Committed No Such Offense
By a MetNews Staff Writer
A defendant who asked his sister to contact his victim—a former girlfriend he had battered and kidnapped—and ask her to profess having been coerced by a police detective to “press charges,” was properly stripped of his right of self-representation, the Court of Appeal for this district held yesterday in a 2-1 decision.
Justice Kenneth Yegan wrote the majority opinion, in which Presiding Justice Arthur Gilbert joined. Dissenting was Justice Martin Tangeman.
The majority’s view is that the defendant’s attempt at witness intimidation justified the trial court’s action; Tangeman contends that there was no witness intimidation although there was misconduct and that a hearing should be held on whether a less drastic sanction would be appropriate.
The opinion comes in the case of Alejandro C. Torres, who was convicted by a jury of battery and other offenses and was sentenced by Los Angeles Superior Court Judge Lillian Vega Jacobs to nine years eight months in state prison.
Torres sought reversal based on Jacobs revoking permission to act as his own lawyer after the prosecutor told of the defendant telephoning his sister from jail “asking her to speak to the victim, locate the victim and have her write a statement indicating that she was coerced in making the statements.”
Can Be Revoked
“Where, as here, the trial court factually finds that a self-represented defendant has engaged in an attempt to intimidate a witness, the constitutional right of self-representation can, in the exercise of the trial court’s sound discretion, be revoked.”
He relied on the California Supreme Court’s 2005 decision in People v. Carson. There, the state high court said that “neither the language nor the logic of Faretta v. California,” the 1975 U.S. Supreme Court decision proclaiming the constitutional right of self-representation in criminal cases, precludes stripping a defendant of pro per based on out-of-courtroom misconduct.
Decision in Carson
The court in Carson declared:
“One form of serious and obstructionist misconduct is witness intimidation….Threatening or intimidating acts are not limited to the courtroom….When a defendant exploits or manipulates his in propria persona status to engage in such acts, wherever they may occur, the trial court does not abuse its discretion in determining he has forfeited the right of continued self-representation.”
Yegan noted that Torres, in invoking his Faretta right, signed a written waiver of the right to counsel in which he acknowledged that his pro per status could be rescinded if he attempted to “obstruct the conduct and progress of the trial.” Torres was placed under a restraining order prohibiting him from contacting the victim and forbidding any effort at witness intimidation, the opinion points out.
The jurist wrote:
“[I]t is well established that the trial court may terminate a defendant’s Faretta status where the defendant engages in serious and obstructionist misconduct or conduct that threatens the core integrity of the trial….Witness intimidation in a domestic violence case is just that….Such conduct is more than an attempt to ‘obstruct the conduct and progress of the trial.’…It is an attempt to stop the trial.”
“While representing himself, appellant’s actions, including the telephone attempt to intimidate a witness, are attributed to him in his self-represented status. He brazenly violated a criminal protective order and asked his sister to dissuade the victim from testifying. He had been warned and knew that such conduct could result in the loss of his pro per status and pro per privileges. Appellant complains that the trial court did not consider less drastic sanctions. The record is silent on this claim. Error may not be predicted on a silent record….And, we presume that the trial court did consider ‘less drastic sanctions.’ ”
The court in Carson said that “it is incumbent on the trial court to document its decision to terminate self-representation with some evidence reasonably supporting a finding that the defendant’s obstructive behavior seriously threatens the core integrity of the trial.”
Yegan said that a finding that Torres’s misconduct “impaired the integrity of the trial,” though not made expressly made by Jacobs, “is easily implied.” He commented:
“Appellant is fortunate not to have been charged with an additional offense.”
Tangeman said there is no evidence of witness intimidation. He explained:
“Penal Code section 136.1, subdivision (a) precludes a person from attempting to, or preventing or dissuading a witness or victim from, ‘attending or giving testimony at any trial, proceeding, or inquiry authorized by law.’ The restraining order similarly provides, ‘You must not attempt to or actually prevent or dissuade any victim or witness from attending a hearing or testifying or making a report to any law enforcement agency or person.’ On this record, no showing has been made that Torres attempted to dissuade the victim from attending a hearing, testifying, or giving a report.”
The dissenter said that Torres was forbidden by the restraining order from contacting the victim, yet attempted to do so.
“The issue presented here is whether that attempt justified the revocation of his constitutional right to represent himself,” Tangeman wrote. “I conclude that on this record it does not….”
He noted the facts in Carson. A pro per defendant received unredacted records from an investigator which he knew he was not authorized to have. Tangeman quoted Carson as saying, with emphasis added by him:
“When a defendant exploits or manipulates his in propria persona status to engage in such acts, wherever they may occur, the trial court does not abuse its discretion in determining he has forfeited the right of continued self-representation.”
No Exploitation, Manipulation
Tangeman said there was “no showing or finding” of such exploitation by Torres of his pro per status or manipulation of it when he telephoned his sister to enlist her aid.
“Any defendant with access to a telephone or other means of communication could do the same thing, whether represented by counsel or not,” he said, adding:
“[E]ven when a defendant has exploited their [sic] in propria persona status to engage in out-of-court witness intimidation, termination of the constitutional right of self-representation can be too severe a remedy.”
He said he would remand the case for a hearing to determine if the withdrawal of pro per privileges was too extreme and, if so, to grant a new trial.
The case is People v. Torres, 2020 S.O.S. 1809.
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