People v. Wilder

Page 463

41 Cal.Rptr.2d 463

35 Cal.App.4th 489

The PEOPLE, Plaintiff and Respondent, v. Byron James WILDER, Defendant and Appellant.

No. B079341.

Court of Appeal, Second District, Division 5, California.

May 30, 1995.

Certified for Partial Publication. ^*

Rehearing Denied June 19, 1995.

Review Denied Aug. 24, 1995.

Steven J. Renick, under appointment by the Court of Appeal, Long Beach, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., John R. Gorey, and Mitchell Keiter, Deputy Attys. Gen., for plaintiff and respondent.

TURNER, Presiding Justice.

Defendant, Byron James Wilder, appeals his drug conviction and findings concerning enhancements imposed because of his substantial prior record of criminality. In the published portion of this opinion, we conclude that the trial court's failure to advise defendant, who represented himself at trial, of the disadvantages of self-representation but where the waiver of counsel was voluntary is subject to the harmless error standard of review set forth in Chapman v. California (1967) 386 U.S. 18, 22-24, 87 S.Ct. 824, 827-828, 17 L.Ed.2d 705. We affirm the judgment.

When the testimony is viewed in a light most favorable to the prosecution (Jackson v. Virginia (1979) 443 U.S. 307, 319, 99 [35 Cal.App.4th 492] S.Ct. 2781, 2789, 61 L.Ed.2d 560; Taylor v. Stainer (9th Cir.1994) 31 F.3d 907, 908; People v. Berryman (1993) 6 Cal.4th 1048, 1083, 25 Cal.Rptr.2d 867, 864 P.2d 40), the following was the evidence before the jury: two undercover narcotics officers stopped their car; within one second, defendant approached the undercover police officers; in this area of the city, it was typical for a narcotics trafficker to approach an undercover car once it was stopped; defendant said, " '[H]ow much?' "; the undercover officer, based on her experience, concluded the question " 'How much?' " was an inquiry concerning the quantity of drugs she desired to purchase; she responded, " 'I need a 20' "; defendant stood next to the car door as the codefendant, Marlo Ruiz, approached and asked " 'Are you a cop?' "; she responded, " 'No' "; Mr. Ruiz handed her two pieces of rock cocaine totaling .7 grams in weight; she handed Mr. Ruiz a $20 bill; throughout this time period, defendant stood immediately to Mr. Ruiz's right side; both defendant and Mr. Ruiz walked away together in the same direction; as he walked with defendant, Mr. Ruiz placed the $20 bill in a crack in a wall; and when defendant was searched, "three small rock-like objects resembling ... cocaine" were recovered from one of his pockets. No defense was presented.

[]

At his preliminary examination, defendant was represented by a deputy public defender. At the superior court arraignment, the same deputy public defender was present and prepared to accept court appointment to represent defendant. After a codefendant entered a plea of not guilty, the following transpired: "MR. KOLLER [deputy district attorney]: Mr. Byron James Wilder, is that your true name--is that your correct name? [p] MR. WILDER: Yes. [p] MR. KOLLER: You are also here to be advised of the charges against you and you are also charged in this case, case No. BA070994 with one count of the sale or transportation of cocaine base, a felony in violation of Health & Safety Code section 11352A. [p] As to you, there are additional allegations within the meaning of Health & Safety Code section[s] 11370.2 and 667.5B which allege that you have been to prison previously and that you have been convicted of narcotics offenses previously. [p] Do you understand the nature of the charges against you, sir? [p] Do you understand what you are charged with? [p] I'm not asking you--[p] MR. WILDER: No, I don't know what I'm charged with. [p] MR. KOLLER: You are charged with selling cocaine base. Do you understand that so far? [p] MR. WILDER: Yes. [p] MR. KOLLER: That is what you are charged with. [p] MR. WILDER: Yes. [p] MR. KOLLER: And it has been alleged that you have been to prison before and that you were convicted of other narcotics offenses specifically sale or transportation of marijuana. [p] MR. WILDER: That has nothing to do with what I'm charged with. [p] MR. KOLLER: Yes, it does. It adds an additional six years to the possible sentence that you could receive because of your prior record. [p] I want to be sure that you understand that. Not only is it alleged that you committed this crime, but crimes in the past which could increase the punishment that the court could impose should you be found guilty. [p] MR. WILDER: Your honor, I would like to ask if I can have my attorney dismissed because I don't feel she has represented me. [p] THE COURT: First of all, you have not even been arraigned. She can't represent you until the case is assigned to her. The case has not even been--it has just been assigned to her. [p] MR. WILDER: I don't want to go to court with her as my attorney. [p] THE COURT: You don't know anything about her. [p] MR. WILDER: Well, she has not given me a copy of the transcripts. [p] THE COURT: She does not have a copy of the transcript. [p] MR. WILDER: I mean what was said. [p] THE COURT: This is here for arraignment. [p] MR. WILDER: Okay. [p] THE COURT: Whatever happens in the municipal court eventually she will get a copy of the transcript. She doesn't have a copy of the transcript. [p] The court does not even have a copy of the transcript. [p] MR. WILDER: She told me she does not give copies of the transcripts to her clients. I would like to have that. [p] THE COURT: That is something that you could have. [p] MR. WILDER: I'm here on the 9th. She does not care. [p] THE COURT: If you want to hire an attorney--[p] MR. WILDER: Could I have a state appointed attorney? [p] THE COURT: No. You have a state appointed attorney. I'm just appointing her. [p] You know, it amazes me how you guys come in here, you look for miracles when you walk through the door. [p] She has just been appointed. The first thing you are going to tell me is she is not representing you. How could she possibly represent you[?] She knows nothing about you at this point. She just received the information. [p] She has not received the transcript. You come through the door looking for miracles. If you go out and hire the best possible attorney you could ever hire, at this stage of the proceeding that attorney would be in the same position that Miss Gee [the deputy public defender] is in. She knows nothing about your case. She has not had an opportunity to read the transcript, but yet you want a miracle. [p] You want a miracle and from an attorney that knows nothing about your case. [p] Your case is the same as any other case. She has to have an opportunity to read the preliminary hearing transcript and she has to have an opportunity to talk to you about it. She has to have an opportunity to investigate. [p] That is the bottom line. [p] Now you have two choices. She can represent you or you can represent yourself. If you think that you can do a better job, then you can represent yourself. Those are the two choices that you have. [p] Now which is it going to be? [p] MR. WILDER: I think that I would probably be better off representing myself. [p] THE COURT: Do you want to represent yourself? [p] MR. WILDER: Yes. [p] THE COURT: Very well. You certainly have that opportunity. [p] You will be given a pro per status. You will be permitted to represent yourself. [p] Now give him a copy of the-- [p] MS. GEE: Your honor, I would ask that this matter be put over for a short pretrial date so that I can give him a copy of my file. [p] I need to copy the arrest report and the other matters before I--so that I can keep a copy for our files. [p] THE COURT: You do not need a copy for your files. [p] MS. GEE: I may eventually. [p] THE COURT: The point that I'm making at this point is he is his own attorney. Turn everything that you have over to him. That is his request. I'm granting his request. [p] MS. GEE: Again I would ask that this matter be put over. [p] THE COURT: You don't have any authority to ask anything at this point, Ms. Gee. The only thing that you can do is to give him what he is asking for. That is what he is asking for. You give it to him. Let him represent himself. [p] Apparently he feels that he is eminently more qualified to represent himself than you are. So let him represent himself. [p] Now you may arraign Mr. Wilder now that he is in pro. per. [p] MR. KOLLER: Mr. Wilder, the paper that I gave you is called a written information. It states all of the charges against you. [p] I could read all of those charges to you, but they are all there in writing. [p] I have summarized what you are charged with."

Defendant argues the trial court failed to advise him of the potential dangers of self-representation. Defendant relies upon the following language in Faretta v. California (1975) 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, where the United States Supreme Court held: "Although a defendant need not himself have the skill and experience of a lawyer in order to competently and intelligently to choose self-representation, he 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.' [Citation.]" In Godinez v. Moran (1993) 509 U.S. 389, ----, 113 S.Ct. 2680, 2687, 125 L.Ed.2d 321, 333; the United States Supreme Court held: "In addition to determining that a defendant who seeks to ... waive counsel is competent, a trial court must satisfy itself that the waiver of his constitutional rights is knowing and voluntary.... Faretta [v. California, supra, 422 U.S. at p.] 835 [95 S.Ct. at p. 2541] ... (waiver of counsel)." At another point in Godinez, the court held: "The purpose of the 'knowing and voluntary' inquiry, by contrast, is to determine whether the...