Los Angeles County Super. Ct. No. TA041759, Judge: J. D. Smith.
The opinion of the court was delivered by: Corrigan, J.
This is the second death penalty appeal brought by defendant Raymond Oscar Butler. In People v. Butler (2009) 46 Cal.4th 847 (Butler I), we affirmed the conviction and sentence of death imposed on defendant for murdering two college students. In this case, he was convicted of first degree murder and sentenced to death for stabbing a fellow jail inmate. (Pen. Code, §§ 187, subd. (a) & 190.2, subd. (a)(2).) Defendant contends he was denied his Sixth Amendment right to represent himself at trial. (Faretta v. California (1975) 422 U.S. 806 (Faretta).) We agree. The trial court erroneously decided that defendant could not adequately represent himself because of jail restrictions resulting from his disciplinary infractions. Faretta and its progeny require reversal of the judgment in its entirety.
The jailhouse murder occurred on March 26, 1995, while defendant was awaiting trial for the Butler I murders. We need not detail the circumstances of the stabbing; they were introduced at the penalty phase in Butler I and are set out in 46 Cal.4th at pages 852-853. Here, we discuss only the facts relevant to defendant's Faretta claim.
Defendant was represented by counsel in Butler I. In the present case, however, he sought to represent himself early on, before special circumstance allegations were added to the complaint. In December 1995, defendant filed a handwritten Faretta motion asserting his "unconditional constitutional right to represent himself without counsel." Defense counsel filed a supporting declaration, explaining that he was defendant's attorney in Butler I and had agreed with the county to represent him in this second prosecution for no additional fee. Because the jail stabbing would be the primary evidence at a penalty phase in Butler I, counsel would be preparing to address the incident. He was willing to serve as advisory or standby counsel, and could take over the defense should defendant not continue in propria persona (hereafter, "pro. per.").
The prosecutor responded that defendant might be seeking self- representation to gain pro. per. jail privileges, or for purposes of manipulation and delay. However, she added that "[w]hatever the defendant's reasons for requesting pro per status, an otherwise appropriate request to proceed in propria persona must be granted." The trial court granted defendant's motion on December 12, 1995.
On January 2, 1996, the county filed a motion to restrict defendant's "in custody pro per privileges." County counsel claimed that defendant was a demonstrated security risk, with a long and escalating record of disciplinary infractions: In April 1994, he was insubordinate and disrespectful toward a deputy who was escorting him to his cell. In May 1994, he was found with a razor blade modified for use as a weapon. In August 1994, he possessed an unauthorized amount of cash. In September 1994, he tried to prevent his cell door from locking, was found with contraband razor blades, was insubordinate to staff, and caused a disturbance. In March 1995, he participated in the stabbing for which he was currently being prosecuted. In December 1995, he was again found with razor blades, along with contraband cigarettes and a lighter.
County counsel explained that inmates in administrative segregation were allowed to use the "Pro Per Law Library" in compatible, multiracial groups to "prevent one group from establishing a power base" in the library. Defendant's actions showed he was a threat to other inmates and a potential victim of retaliation for the stabbing incident. The sheriff opposed giving him access to the law library, which would bring him into contact with other inmates and staff. The sheriff was, however, willing to provide legal forms and supplies, to staple documents, and to approve a legal runner subject to security checks.
At a hearing on January 3, 1996, defendant objected that he had no books and no opportunity to prepare a response to the county's motion. He was also concerned about his telephone access. County counsel told the court that no additional telephone privileges were granted to pro. per. inmates. The court agreed to deny defendant access to the law library, but set a hearing for February 1, 1996, regarding other restrictions on his pro. per. privileges. On that date defendant filed written opposition, arguing that terminating his privileges "would stop progress and ultimately cause a[n] undue consumption of the court's time and effort." He claimed the violations cited by the sheriff were frivolous and did not justify the restriction of his privileges under Wilson v. Superior Court (1978) 21 Cal.3d 816. Defendant said the only major infraction was the homicide, with respect to which he intended to show that his actions, "if any at all were minor."
At the hearing, defendant complained that he was being treated differently from other pro. per. inmates with similar disciplinary records. He claimed the county's concern that he might be a victim of retaliation was speculative, and said he needed access to the library "because I do plan on representing myself all the way to the end in this case." County counsel denied that defendant had been singled out, and contended that taking him to and from the library and allowing him to be with other inmates in the library posed a "major security concern." The court granted the motion to restrict defendant's privileges and denied his request for expanded telephone access. It noted that he had a legal runner and advisory counsel.
On July 30, 1996, the prosecutor informed the court that defendant had been sentenced to death in Butler I. The court granted her motion to amend the complaint to include the murder convictions in that case as special circumstances. Defendant's advisory counsel reported that his client was being denied "all pro per privileges of any kind whatsoever," and had been told by the deputies in jail that "he is no longer pro per." Counsel requested and received a minute order confirming defendant's pro. per. status.
On October 29, 1996, defendant appeared for a hearing before a new judge, who handled the remaining pretrial proceedings and the trial itself. Defendant complained that he was "receiving no pro per privileges at all." At the next hearing, on November 15, the court itself raised the subject of defendant's self-representation, warning defendant and a co-defendant who was also representing himself that "I want to resolve this [Faretta] issue.... You guys are common-sense people, you have been around. It is pretty obvious with this type of situation that pro per status is probably going to be revoked. It makes sense to me, it makes sense to you."
The court took up the matter on December 10, 1996, telling defendant, "This is nothing personal, Mr. Butler. Understand? You have always treated me with respect. But I have a great concern, based on the fact you already have a sentence of death and this case is predicated, I believe, on the allegation that a person in custody was shanked.... That, in itself, puts the court in concern not only for your safety and retaliation, but concern for other prisoners and deputies. Does that make sense to you?" Defendant said yes, but also affirmed that he wanted to keep representing himself.
The court asked to hear from the prosecutor about other incidents involving defendant. The prosecutor reported the following infractions in addition to those outlined in the county's January 1996 motion: In October 1995, defendant was found with razor blades yet again. In February 1996, he "slipped his cuffs and assaulted an inmate in line." In June 1996, he was found with tar heroin. In October 1996, he and another inmate were discovered "making drugs," and he also had a large container of jail-made alcohol. Most significantly, in October 1996, as he was preparing to come to court, a jail deputy saw him insert something into his rectum, which turned out to be a four-inch-long piece of sharpened metal known in jail vernacular as a "shank" or "shiv." The prosecutor had reports on these incidents, but had not yet provided them to the court. Defendant insisted that "most of [these reports] are not true." When questioned by the court, he said he knew of no one seeking retaliation against him. He denied being in a gang since he had been in custody, but admitted he had been in one previously.
The prosecutor argued that defendant was particularly dangerous because he had been sentenced to death, and "basically... has nothing to lose." She summarized the alleged facts of the jail stabbing. Defendant, his two co-defendants, and the victim were being taken to the showers. One co-defendant emerged from his cell unhandcuffed, and unlocked defendant's cuffs. He and defendant then took turns stabbing the victim in the chest with a shank. The other co-defendant remained handcuffed, but assisted by preventing the victim's escape. The prosecutor called a deputy to the stand, who verified defendant's disciplinary reports and said he was a "very high security risk inmate" based on his continuing infractions in jail and the death sentence he had already suffered. He could not be allowed in the law library. The 20 to 25 high-security inmates then representing themselves were assigned to compatible groups for trips to the law library. However, inmates like defendant posed too severe a risk to be placed in any group.
The court observed that defendant had "always been courteous to this court," and asked about the witness's experience with defendant. The deputy said he had only limited contact with defendant, but that defendant's record spoke for itself. Defendant declined to respond to the prosecutor's showing. The court made the following observations and ruling:
"Mr. Butler, the court asked for the hearing based on the charge here. As I said, you treat us with respect. I think it's inappropriate for this court to allow you to remain in pro per status based on at least ten incidents, most of them involving some type of violence or a weapon in the jail. The most current is where you had a shiv in your rectum. The case that you [have] pending now is a case... regarding a fellow inmate with the allegation that you and two other persons were involved in the death by shanking, and the fact [that] you have been found guilty and [are] facing a capital death sentence.... Would you agree that some of those are pretty egregious? I think for your benefit and the safety of the deputies that I will revoke the pro per status from you. Do you understand?" Defendant said, "Yes, your honor." The court added, "Okay. This is, I think, a good precaution for everybody and to protect you as well."
The court then heard defendant's motion to replace his counsel. (People v. Marsden (1970) 2 Cal.3d 118.) Defendant claimed that counsel, while serving in his advisory status, had failed to confer with him or otherwise assist in preparing a defense. The court denied the motion and reappointed counsel.
The next hearing was six weeks later, in January 1997. The prosecutor told the court she was concerned that defendant had not been given notice of the new incident reports she introduced at the hearing in December. She asked that he be given the opportunity to revisit the revocation of his pro. per. status and contest that evidence. The court said, "I have no objection. Mr. Butler and I have spoken before on the record here. I have nothing against you at all. You have a competent lawyer. You have been given the death penalty; it is on appeal. To proceed on a death penalty case without counsel to me just doesn't make sense. The court had a full hearing. What she is saying is you probably didn't ...