California Landmark Cases on Self-Representation in Criminal Cases

California courts have discretion to appoint "standby" or "advisory" counsel in cases in which an indigent defendant chooses self-representation. (See People v. Bigelow (1984) 37 Cal.3d 731, 742-744.) "'Standby counsel' is an attorney appointed for the benefit of the court whose responsibility is to step in and represent the defendant if that should become necessary because, for example, the defendant's in propria persona status is revoked. 'Advisory counsel' by contrast, is appointed to assist the self-represented defendant if and when the defendant requests help." (People v. Blair (2005) 36 Cal.4th 686, 725.) "'While the Sixth Amendment guarantees both the right to self-representation and the right to representation by counsel . . . a defendant who elects self-representation "does not have a constitutional right to choreograph special appearances by counsel" . Thus none of the "hybrid" forms of representation, whether labeled "cocounsel," "advisory counsel," or "standby counsel," is in any sense constitutionally guaranteed.'" (People v. Blair, supra, 36 Cal.4th at p. 723; see People v. Clark (1992) 3 Cal.4th 41, 111 "defendant who elects to represent himself has no constitutional right to advisory counsel"; People v. Hamilton (1989) 48 Cal.3d 1142, 1162 "A criminal accused has only two constitutional rights with respect to his legal representation, and they are mutually exclusive. He may choose to be represented by professional counsel, or he may knowingly and intelligently elect to assume his own representation.".) A defendant seeking appointment of advisory counsel "must make a showing of need and the decision to grant or deny the request rests in the sound discretion of the trial court." (People v. Crandell (1988) 46 Cal.3d 833, 862, disapproved on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) If "'there exists "a reasonable or even fairly debatable justification, under the law, for the action taken, such action will not be here set aside . . . ."'" (Crandell, at p. 863.) However, a trial court's failure to exercise its discretion is "in itself serious error." (People v. Bigelow, supra, 37 Cal.3d at p. 743 "mistakenly believing it had no authority to appoint advisory counsel, the trial court failed to exercise its discretion"; Crandell, at p. 862 "none of the judges who considered defendant's requests expressly acknowledged the existence of discretion to appoint advisory counsel for defendant, and there is no evidence that any judge engaged in a reasoned exercise of judgment based on an examination of the particular circumstances of this case".) The right to counsel under the federal and state Constitutions includes the right to effective counsel and thus also includes the right to reasonably necessary ancillary defense services. (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319.) A defendant who is representing himself "'may not be placed in the position of presenting a defense without access to a telephone, law library, runner, investigator, advisory counsel, or any other means of developing a defense.'" (People v. Blair (2005) 36 Cal.4th 686 at p. 733.) However, "the Sixth Amendment requires only that a self-represented defendant's access to the resources necessary to present a defense be reasonable under all the circumstances." (Ibid.) Access to a law library is a privilege and not a right. "Access to a law library, by defendants freely choosing to represent themselves at trial, is not compelled by any constitutional, statutory or common law mandate. While access by such defendants may not arbitrarily be denied, nor, once conferred, terminated or restricted , there is no requirement that such defendants be afforded specific books or access at specific times or on specific days." (People v. Davis (1987) 189 Cal.App.3d 1177, 1196, disapproved on other grounds in People v. Snow (1987) 44 Cal.3d 216, 225-226.) A trial court's ruling on a motion for defense services is reviewed for an abuse of discretion. (Corenevsky, at p. 321.) "A criminal defendant has a right, under the Sixth Amendment to the federal Constitution, to conduct his own defense, provided that he knowingly and intelligently waives his Sixth Amendment right to the assistance of counsel." (People v. Blair (2005) 36 Cal.4th 686, 708, overruled on another point in People v. Black (2014) 58 Cal.4th 912, 919.) "When 'a motion to proceed pro se is timely interposed, a trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be. Furthermore, the defendant's "technical legal knowledge" is irrelevant to the court's assessment of the defendant's knowing exercise of the right to defend himself.'" (People v. Dent (2003) 30 Cal.4th 213, 217.) While most defendants would be better defended with counsel than without, "a criminal defendant's ability to represent himself has no bearing upon his competence to choose self-representation." (Godinez v. Moran (1993) 509 U.S. 389, 400.) Indeed, a "trial court may not determine a defendant's competency to waive counsel by evaluating his ability to present a defense." (People v. Koontz (2002) 27 Cal.4th 1041, 1070.) "A defendant seeking to represent himself 'should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open." .' 'No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation.' " (People v. Blair, supra, 36 Cal.4th at p. 708.) "The failure to give a particular set of advisements does not, of itself, show that a Faretta waiver was inadequate. Instead, 'the burden is on the defendant to demonstrate that he did not intelligently and knowingly waive his right to counsel.... This burden is not satisfied by simply pointing out that certain advisements were not given.'" (People v. Weber (2013) 217 Cal.App.4th 1041, 1058-1059; see People v. Koontz, supra, 27 Cal.4th at p. 1071.) "Rather, 'the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.'" (Blair, supra, at p. 708.) We independently examine the entire record, not just the Faretta hearing record, to determine whether he intelligently and knowingly waived his right to counsel. (People v. Burgener (2009) 46 Cal.4th 231, 241.) The Sixth Amendment to the United States Constitution gives criminal defendants the right to represent themselves. (Faretta v. California (1975) 422 U.S. 806 (Faretta).) A knowing and intelligent waiver of the right to counsel is required before a criminal defendant is allowed to represent himself. (People v. Noriega (1997) 59 Cal.App.4th 311, 319.) The defendant should be made aware of the dangers and disadvantages of self-representation so the record shows he is making an informed choice with his eyes wide open. (Ibid.) The purpose of this requirement is to determine whether the defendant in fact understands the significance and consequences of his decision and whether that decision is voluntary. (Ibid.) On appeal the test is not whether specific warnings or advisements were given. Instead, we examine the record as a whole to determine whether the defendant understood the disadvantages of self-representation, including the risks and complexities of his case. (Ibid.) Our examination of the record is de novo. (People v. Koontz (2002) 27 Cal.4th 1041, 1070.) The right of self-representation was not recognized in California when Faretta was decided. (People v. Johnson (2012) 53 Cal.4th 519, 526 (Johnson).) After Faretta, California courts tended to view this right as absolute so long as the defendant validly waived his right to counsel. (Ibid.) In Indiana v. Edwards (2008) 554 U.S. 164 (Edwards), the high court recognized the existence of "gray-area defendants": those who are mentally competent to stand trial but who suffer from severe mental illness that renders them incompetent to conduct trial proceedings by themselves. (Id. at p. 174; see id. at pp. 177-178.) In such cases the United States Constitution gives states the option of insisting upon representation by counsel. (Edwards, at pp. 177-178.) Edwards did not hold that due process requires a higher standard of mental competence for self-representation than for trial with counsel; it only allows states to impose a higher standard without violating Faretta. (People v. Taylor (2009) 47 Cal.4th 850, 877-878 (Taylor).) In Johnson, supra, 53 Cal.4th 519, the California Supreme Court accepted Edwards's invitation and held that our trial courts have discretion to deny a defendant's Faretta motion consistent with the holding in Edwards. (Id. at p. 528.) Declining to adopt a specific standard, Johnson held that trial courts may exercise their discretion to deny self-representation if the "defendant suffers from a severe mental illness to the point where he or she cannot carry out the basic tasks needed to present the defense without the help of counsel." (Id. at p. 530.)