Faretta Colloquy

A defendant seeking to represent himself at trial " '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." .' (Faretta v. California (1975) 422 U.S. 806 at p. 835.)" (People v. Koontz (2002) 27 Cal.4th 1041, 1070 (Koontz).) Shortly after Faretta was decided, a California Court of Appeal provided suggestions about the scope of the inquiry to be made by the court when a defendant "chooses to go it alone." (People v. Lopez (1977) 71 Cal.App.3d 568, 571-574.) Noting that "the trial judge must recognize that the first ground on appeal is probably going to be that the defendant was allowed to represent himself without having intelligently and voluntarily made that decision" (id. at p. 572), the court suggested that advisements should (1) explain the dangers and disadvantages of self-representation, (2) inquire into the defendant's mental capacity, and (3) advise the defendant that he cannot later claim ineffective assistance of counsel. (Id. at pp. 572-574.) With respect to the second factor, the Lopez court wrote, "Perhaps some exploration into the nature of the proceedings, the possible outcome, possible defenses and possible punishments might be in order." (Id. at p. 573.) The Supreme Court has cited Lopez favorably, but clarified that "no particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation; 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. " (Koontz, at p. 1070.) In Koontz, the Supreme Court rejected an argument that a trial court's Faretta colloquy was inadequate because it did not include some specific advisements suggested by Lopez. (Koontz, at pp. 1070-1073.) The court concluded the allegedly missing advisements were implicit in other parts of the colloquy and the colloquy as a whole was constitutionally adequate. (Id. at pp. 1072-1073; see also People v. Lawley (2002) 27 Cal.4th 102, 142 as whole, colloquy was adequate in light of Lopez.) The United States Court of Appeals for the Ninth Circuit has formulated a standard for Faretta colloquies that requires district courts to ensure the defendant understands "1) the nature of the charges against him, 2) the possible penalties, and 3) the 'dangers and disadvantages of self-representation.' " (United States v. Erskine (9th Cir. 2004) 355 F.3d 1161, 1167.) In Erskine, the Ninth Circuit reversed a criminal judgment on the ground that, although the defendant was properly advised on the dangers and disadvantages of self-representation, he was erroneously advised that the maximum prison sentence he faced was one year; the actual maximum penalty was five years. (Id. at pp. 1165, 1169-1171; see also United States v. Forrester (9th Cir. 2008) 512 F.3d 500, 507 reversing, despite proper advisement on dangers and disadvantages of self-representation, because defendant not advised of nature of charge against him and erroneously advised about penalty (told maximum sentence was 10 years to life, whereas sentencing range was 0-20 years.) In Sullivan, another division of this court cited the Ninth Circuit standard for Faretta colloquies as if it were controlling law in California. (Sullivan, supra, 151 Cal.App.4th at p. 545.) But the Sullivan court also reiterated the rule that " ' " 'the test of a valid waiver of counsel is not whether specific warnings or advisements were given but 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.' " ' " (Id. at p. 546.) And, the court affirmed on the ground that the defendant had not provided a sufficient record to demonstrate that that his waiver of his right to counsel was not knowing and voluntary. (Id. at pp. 548-549.)