Ct.App. 2/7 B193831 Los Angeles County Super. Ct. No. BA284590. Judge: Mark V. Mooney.
The opinion of the court was delivered by: Werdegar, J.
When a criminal defendant who has waived his right to counsel and elected to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta) seeks, during trial, to revoke that waiver and have counsel appointed, the trial court must exercise its discretion under the totality of the circumstances, considering factors including the defendant's reasons for seeking to revoke the waiver, and the delay or disruption revocation is likely to cause the court, the jury, and other parties. (People v. Gallego (1990) 52 Cal.3d 115, 163-164.) Here, the revocation request by defendant, who was being tried jointly with a co-defendant, was not heard until after the jury had been selected and sworn and the prosecution's first witness had begun to testify. We hold that considering all the circumstances, especially defendant's failure to articulate a compelling reason for revoking his Faretta waiver and the likely delay and disruption that continuing a joint trial after the jury was empanelled would cause, the trial court did not abuse its discretion in denying the revocation request. We reverse the judgment of the Court of Appeal, which held the denial was an abuse of discretion and was prejudicial per se because it resulted in the complete denial of defendant's right to be represented by counsel.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of the offenses are not important to the issues we address here. In brief, a paid police informant testified at trial that he bought two rocks of cocaine from defendant for $20 at a Los Angeles house. A police officer observed the transaction through binoculars, but was unable to see the actual exchange of money or drugs. When the police searched the house and its occupants shortly afterward, they found the $20 bill used to buy the cocaine in co-defendant Patricia Broomfield's sock and found more rocks of cocaine in the house.
Defendant was charged with one count each of sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)) and possession of a controlled substance for sale (id., § 11351.5). Similar charges were brought against Broomfield and John Evans.
Defendant was initially represented by court-appointed counsel, but during pretrial proceedings he substituted retained attorney Paul Cohen. When the case was called before Judge Wesley on the morning of Wednesday, September 28, 2005, the People and the two co-defendants announced they were ready for trial, but Cohen, who had filed for a continuance, explained he was selecting a jury in "a six count attempt[ed] murder case" and would therefore not be ready for "about two weeks." Cohen informed the court defendant wished to represent himself, and defendant confirmed that desire.
The court told defendant it would expect him to be ready in two weeks, as Cohen would have been, but counsel for co-defendant Broomfield, Joseph Walsh, observed that a two-week continuance "runs into my calendar. I have another case right after this. I am available for this two weeks." After a series of written and oral admonishments, defendant reaffirmed his desire to represent himself.*fn1 On his further statement that he was ready for trial, the court sent the case out for trial before Judge Mooney.
When the parties appeared before Judge Mooney later that morning, they discussed possible plea agreements. The court suggested defendant might wish to offer to plead guilty in exchange for a sentence of five years in prison, a deal the prosecutor (who had previously offered six years) said he would be willing to propose to his supervisors. Defendant, however, indicated he thought he should get diversion or probation, despite several charged prior convictions and despite his having been on conditional release at the time of his arrest. He also facetiously suggested that if he went to trial and won the court should give him $5 million "for wasting my time." In the afternoon, co-defendant Evans made a negotiated plea and the court began jury selection for the joint trial of defendant and co-defendant Broomfield.
During jury selection on the afternoon of September 28, Broomfield's attorney, Walsh, brought to the court's attention that defendant had been asking him questions. Walsh added that on the basis of "informal" discussions with defendant, "I think he wants to withdraw his pro per status." Defendant responded: "The only reason is cross-examination. People are saying something and I am not for sure able to, you know." Addressing defendant, the court noted he had been "advised of all of these problems" before waiving his right to counsel, but continued, "We will see if we can contact your counsel."*fn2 Walsh pointed out that defendant's former attorney "is engaged in I believe an attempted murder trial and he will be for two weeks." The court admonished defendant not to "bother" Walsh with questions during the trial. Defendant said nothing more about revoking his in propria persona status, and jury selection continued with defendant representing himself.
On Thursday, September 29, jury selection was completed and the jurors and alternate jurors were sworn. There was no additional discussion on the record regarding appointment of counsel for defendant. Defendant neither raised the issue nor sought a ruling. Proceedings were adjourned until Monday, October 3.
On the morning of October 3, just after the court called for the jurors to enter, defendant told the court: "I talked to my wife and I need a state appointed lawyer or public defender. I am going to have to request a public defender and I am retiring my pro per on the record." The court responded that it would address that request at the next break. The court gave opening jury instructions, the prosecutor and both defendants presented opening statements, and the prosecution's first witness began his testimony.
At the first break in trial, the following discussion occurred:
"The Court: The record should reflect that the jurors have exited the courtroom.
"Just as our jurors were walking in, Mr. Lawrence had made the request to have an attorney appointed to represent him in this matter. And, Mr. Lawrence, I will give you a chance to be heard on that request.
"The Defendant: Yes, your Honor. I talked to my wife this weekend and she said I shouldn't be doing something. And it doesn't matter to me, but she figured I might get a public defender or state appointed attorney or someone.
"The Court: Well, Mr. Lawrence, the court -
"The Defendant: I haven't been to the law library or nothing either.
"The Court: The court has considered your request and I am going to deny your request at this time. This was something you were warned about when you got yourself into this, about you would be at a disadvantage choosing to represent yourself in this matter.
"I also consider the fact that, you know, the jury has been selected in this matter, that you also have a co-defendant. And it would be disruptive to her case as well to have someone come in. Your previous attorney, Mr. Cohen, as I understand, is still engaged in trial and not available, so for all of those reasons I am going to deny your request.
"And I also note when you filled out this form you were specifically advised and you initialed here on paragraph H if you ask to give up your pro per status the court may deny the request and have you proceed to trial without an attorney and that is where we are now, sir."
Trial proceeded with defendant representing himself. Defendant was convicted of both offenses and sentenced to seven years in state prison. At sentencing, defendant was represented by retained attorney Denise McLaughlin-Bennett.
The Court of Appeal reversed. The appellate court held denial of defendant's request to revoke his counsel waiver was an abuse of discretion. Inconvenience to the jury, co-defendant, and co-defendant's counsel, the court reasoned, was an insufficient basis for denial given the early stage of trial, the legitimacy of defendant's reason for seeking appointment of counsel, and defendant's evident inability to represent himself effectively. The court further held the error had deprived defendant of his right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution, requiring reversal without any further showing of prejudice.
We granted the People's petition for review.
In People v. Windham (1977) 19 Cal.3d 121, 128, we explained that while a timely, unequivocal Faretta motion invoked the non-discretionary right to self-representation, a midtrial motion was "addressed to the sound discretion of the court." In People v. Elliott (1977) 70 Cal.App.3d 984 (Elliott), the Court of Appeal concluded the same was true of a midtrial request to revoke in propria persona status and have counsel appointed. (Id. at p. 993.) Adapting the nonexclusive list of factors to consider mentioned in Windham, the Elliott court opined that a trial court should consider, along with any other relevant circumstances, "(1) defendant's prior history in the substitution of counsel and in the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which ...