Superior Court Los Angeles County No. BA 106878, J. D. Smith
Michael J. Hersek, State Public Defender, under appointment
by the Supreme Court, and Alison Bernstein, Deputy State
Public Defender, for Defendant and Appellant.
G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane
R. Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and
Susan S. Kim, Deputy Attorneys General, for Plaintiff and
Frank Kalil Becerra was convicted by jury of the first degree
murders of James Harding and Herman Jackson,  with the
special circumstance of multiple murders. He was also
convicted of first degree burglary with use of a
knife and assault causing great bodily
injury on George McPherson. The jury returned a
verdict of death, which the court imposed,  along with
seven years in prison for the first degree burglary and
enhancement. The assault sentence was stayed.
automatic appeal, defendant contends the trial court
erroneously terminated his right to self-representation in
violation of the Sixth and Fourteenth Amendments to the
federal Constitution. (See Faretta v. California
(1975) 422 U.S. 806, 807, 835 (Faretta).) We agree.
The court’s rationale, that defendant had been
“dilatory” and had been “stalling, ”
is not supported by the record. Faretta and its
progeny require reversal of the judgment in its entirety.
December 28, 1994, Harding and Jackson were found bound to
each other and strangled to death with electrical cords in
Harding’s room at the Pacific Grand Hotel, a
residential hotel in downtown Los Angeles where drugs were
routinely bought and sold. Defendant, an admitted drug dealer
and gang member, had repeatedly threatened to kill Harding in
a dispute over a bag of missing cocaine. A few days before
the murders, defendant forced his way into McPherson’s
room and held a knife to McPherson’s neck while
demanding to know where his “stuff” was. Because
resolution of defendant’s appeal turns exclusively on
his Faretta claim, we focus solely on facts germane
to that contention.
April 1995, before his preliminary hearing, defendant moved
unsuccessfully to replace his public defender, Gregory
Fisher. In May, still awaiting his preliminary hearing,
defendant asked to represent himself, adding that he was
acting as his own counsel in another, unrelated criminal
case. The court granted his Faretta request. It
directed the public defender to turn over his records,
approved funds for an investigator and supplies, and set a
June date for defendant’s discovery motion. Fisher
informed the court he had already given defendant copies of
all reports except the victims’ rap sheets and would
turn over any additional discovery.
June discovery hearing, defendant requested a postponement,
claiming he had not yet received a complete copy of the
prosecution’s murder book from his investigator.
The court concluded defendant could proceed with an
additional 73 discovery requests. On the record but outside
the court’s presence, the prosecutor and defendant
discussed each request. In most instances, the prosecutor
explained the items were either contained in the murder book,
had been given to defendant’s previous counsel, or did
not exist. As to many requests, the prosecutor told defendant
just where the information could be found in the murder book.
With consent of the parties, the court continued the matter
to July to set a preliminary hearing.
July, the prosecutor declared he was “available any
day” for the preliminary hearing. Defendant, however,
requested additional discovery, claiming an inventory of the
material he had been given revealed “a lot” of
items were missing, as detailed in his compliance motion. The
prosecutor responded he had turned over “a complete and
true copy of the murder book” to defendant’s
previous counsel. He did not otherwise speak to the
contention that “a lot” of defendant’s
requested discovery items had not been turned over. The court
directed defendant’s investigator to ascertain
“all the matters” that defendant was seeking,
meet with the prosecutor to secure them, and then deliver
them to defendant. If problems arose, they were to notify the
clerk so the court could intervene. The court also directed
the parties to cooperate so the preliminary hearing could be
set in August.
August hearing, the prosecutor reported that he and
defendant’s investigator had gone through the murder
book “page by page by page, literally through the
entire murder book. [¶] There were some documents
Mr. Jensen did not have that I copied and gave to him.
He gave me the further request for discovery; one being
request for receipt by fax [of] rap sheets for approximately
25 witnesses.” (Italics added.) The process of
checking those records had not been completed.
“Other than that, I believe that all the discovery Mr.
Jensen asked of me has been provided” except
for the audio tapes, which were in the process of being
reproduced. The prosecutor said he would notify Jensen in
three or four days when the tapes were ready. After
addressing several subpoena issues with the court, defendant
identified additional discovery items he claimed were still
missing. The prosecutor did not object to the requests, nor
did the court rule that defendant was not entitled to the
items mentioned. Instead, the court set an additional hearing
date, explaining, “I want to make sure that you
have all those things before we go ahead with the
prelim. [¶] Approximately 30 days from today’s
date? Will that be enough time, or do you need more
time?” (Italics added.) Defendant responded,
“Yeah, that is fine, ” and the parties agreed to
meet on September 28 to set the preliminary hearing.
September hearing, however, the court opened the proceedings
by terminating defendant’s self-representation during
the following exchange, without any record of prior warning
Court: I gave you pro per privileges a little over four
months ago and you continued this case on at least six
occasions. The Court finds that everything you’ve done
is dilatory; that this case is never going to get off the
ground; that the prelim will never occur; and that all
you’re doing is stalling. ...