Metropolitan News-Enterprise


Wednesday, August 18, 2021


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C.A. Orders Remand for Second Time in Case Where Faretta Right Was Denied Mid-Trial


By a MetNews Staff Writer


A man who tried to steal a bicycle in 2016 was convicted of attempted robbery, but in 2018 gained a conditional reversal because the judge had denied as untimely a mid-trial motion to represent himself, has now won another conditional reversal because, on remand, he was allowed to argue why he should be allowed to act as his own lawyer without a knowing and voluntary waiver of the right to counsel being obtained.

“The irony of defendant’s position does not escape us,” Justice Luis Lavin of Div. Three remarked in an unpublished opinion, filed Monday.

Lavin also wrote the Sept. 25, 2018 unpublished opinion in which it was held that defendant Shawn Allan Fletcher was wrongfully denied his right of self-representation, in violation of the U.S. Supreme Court’s 1975 decision in Faretta v. California, because Los Angeles Superior Court Judge Craig J. Mitchell did not make inquiry into his reasons, as required by the California Supreme Court’s 1977 ruling in People v. Windham. The 2018 opinion instructed that a hearing be held to consider the Windham factors; that a new trial should be granted if it is determined that the Faretta motion should have been granted; and that the convicted be reinstated if the question is answered in the negative.

A hearing was convened in 2019. Fletcher’s attorney of record, Mona Deutsch-Miller, who had successfully represented him in the first appeal, was not present.

It was explained that Fletcher wanted to represent himself; Mitchell permitted him to proceed; he told why he wanted to take over the defense at his trial; Mitchell held that his reasons were insufficient and ordered the judgment of conviction reinstated.

In Monday’s opinion, Lavin wrote the post-trial hearing constituted a “critical stage of the proceedings” at which Fletcher had a right to counsel, and Mitchell’s failure to render the requite advisement and make sure the waiver was a knowing and intelligent one requires reversal.

The Office of Attorney General challenged the defendant’s assertion that the post-trial hearing was a “critical stage”—apparently an issue of first impression. Lavin said:

“Neither the parties nor this court have identified any precedent specifically addressing whether a post-appeal hearing is, as a general matter, considered a critical stage at which a defendant is entitled to the assistance of counsel.”

He distilled from decisional law the proposition that “critical stages can be understood as those events or proceedings in which the accused is brought in confrontation with the state, where potential substantial prejudice to the accused’s rights inheres in the confrontation, and where counsel’s assistance can help to avoid that prejudice,” and declared:

“[W]e conclude that the remand hearing was a critical stage of the proceedings at which defendant had a right to counsel. First, the stakes at the remand hearing were high: The prosecution risked reversal of the conviction and defendant sought to preserve his right of self-representation—a right that had been foreclosed without a proper evaluation by the trial court. And, if successful, defendant might have obtained a new trial….

“Second…, the procedural complexity of the remand hearing was significant. The hearing was not, as the Attorney General would have it, a standard Faretta hearing at which defense counsel would likely have a minimal role and the prosecution would not participate. Instead, defendant was required to argue against the prosecutor at the remand hearing and her primary objective was to preserve the conviction. Thus, the usual circumstances of a Faretta hearing were not present during the remand hearing. Moreover, our disposition of the prior appeal narrowed the focus of the remand hearing in a manner that would be ‘hopelessly forbidding’ for a layperson.”

The opinion rejects the position of the Office of Attorney General that Mitchell had no need at the 2019 hearing to follow the procedure prescribed in Windham because he had already done so when the defendant sought, and received, consent to represent himself at the sentencing hearing.

“We agree that, as a general matter, a trial court does not have the obligation to readvise the defendant of the right to counsel at each hearing or each stage of the same criminal proceeding, absent a specific statute requiring readvisement,” Lavin acknowledged.

However, he said, Fletcher had not previously waived his right to counsel “for all purposes,” but only as to the sentencing hearing. He also pointed out that the hearing on remand “involved completely different issues and required an understanding of the impact of our prior decision—a significant and nuanced factor not involved at the sentencing hearing.”

The opinion instructs that if, on the second remand, Fletcher knowingly and intelligently waives the fright to counsel, the judgment is again to be reinstated; if he invokes the right to council, a new hearing is to be held to determine of the Faretta motion should have been granted at the first trial.

The case is People v. Fletcher, B298412.


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