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California Court of Appeal: Trial Court’s Denial of Faretta Request Without Finding of ‘Severe Mental Illness’ Denied Defendant Sixth Amendment Right to Self-Representation

by Matt Clarke

The Court of Appeal of California, Fourth Appellate District, reversed a conviction for assault on a peace officer by means of force likely to produce great bodily injury in violation of Penal Code § 245(c) after finding that the trial court erred in denying the defendant’s request to represent himself based on its finding that he was “unable to sufficiently represent himself.”

Jesse Orosco was a high-security pretrial detainee being held at the West Valley Detention Center when San Bernardino County Deputy Sheriff Daniel Chism began preparing him and other prisoners for transportation to court. As Chism was changing Orosco’s leg shackles, Orosco began yelling down the hallway to another prisoner. Ignoring Chism’s order to stop, he decided to take Orosco down the hallway to a holding cell. As Chism led him, holding his shirt, Orosco pulled away and then struck Chism with his left elbow. Chism suffered major swelling on his left temple and a laceration requiring three stitches. The events were captured on video and played for the jury when Orosco went on trial for assaulting Chism.

Just prior to the preliminary hearing, Orosco filled out a preprinted Faretta waiver of counsel form. See Faretta v. California, 422 U.S. 806 (1975) (a state may not constitutionally “hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense”).

In doing so, he initialed boxes stating he had been advised of the penalties and consequences if found guilty, “[t]hat it is generally not a wise choice to represent myself in criminal matters,” that “the Court will not give me any special consideration because I am representing myself,” that “I will be opposed by a trained experienced prosecuting attorney,” that “ I must comply with all the rules of law, criminal procedure and evidence,” that “incompetency of counsel as an issue on appeal is waived,” that “any disruptive behavior on my part may result in the Court terminating my pro se status,” and that “if I cannot afford an attorney I have the right to one appointed at no cost to me.”

A line on the form stated, “I have been involved in _____ criminal proceedings in the past and I feel I am capable of representing myself.” Orosco initialed the line, crossed out his initials, then initialed it again, but left the blank empty.

Another line stated, “I ____ DO _____ DO NOT request the services of an interpreter at further court hearings.” Initially, Orosco check the box indicating that he needed an interpreter but then crossed it out and initialed the correction. Ultimately, he checked the box indicating that he didn’t need an interpreter.

He also initialed lines indicating that he waived his right to an attorney and had “no difficulties in reading and understanding this form.” He signed the form under penalty of perjury, dating it under a line stating, “I understand each of the foregoing statements. I have initialed each statement as proof thereof.”

During the preliminary hearing, defense counsel informed the court that Orosco was requesting a Faretta hearing. The judge questioned Orosco about his decision, verbally explaining the disadvantages of self-representation, then asking if he still wanted to proceed pro per. Orosco replied, “Yes, ma’am.”

The court continued questioning Orosco, going over the items covered in the form. He replied to each question with a polite, “Yes, ma’am.” The court then asked if Orosco was requesting an interpreter. He replied that he was. She noted he had not checked the box for an interpreter, and he replied, “Oh well, I’ll check mark it right now. My bad. I apologize off the bat ... I honestly didn’t know how to fill it out.” The judge said, “if you don’t know how to fill this form out, I don’t know if I can trust you to represent yourself.” Upon further questioning the court determined that Orosco did not, in fact, want an interpreter and that he had a high school diploma.

When the court asked about the blank he had not filled in, Orosco explained that he “thought that meant if I were pro per in the past.” She had him reread the line, and he said, “I read it. I don’t understand what it’s saying ... I haven’t represented myself before. This is my first time representing myself. So I don’t understand what I’m supposed to put, yeah or no, in the blank.”

The court denied his Faretta request, “finding that at this point, you are not able to understand even the Faretta waiver and what it’s asking you. So I don’t trust that you can sufficiently represent yourself.” It issued an order denying Orosco’s Faretta motion and stating that he did not seem to understand whether an interpreter was needed and what a “criminal proceeding” means. It concluded that “[i]n totality, it appears defendant is unable to sufficiently represent himself.” At no time did the court did order a psychological or psychiatric examination to assess Orosco’s mental competence to represent himself.

He was represented by appointed counsel at trial, convicted, and sentenced to 16 months’ imprisonment. He appealed.

The Court of Appeal appointed Steven S. Lubliner to represent Orosco. He challenged the denial of his Faretta motion.

The Court began its analysis by noting the U.S. Supreme Court has determined that the Sixth Amendment includes the right of self-representation. Faretta. The Faretta Court explained that it’s the “defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage.” The U.S. Supreme Court refined the right of self-representation in Indiana v. Edwards, 554 U.S. 164 (2008), where the Court ruled that the State may deny a defendant’s request for self-representation and insist upon trial counsel where the defendant is competent to stand trial but lacks the mental capacity to conduct his own defense unless represented by counsel.

In People v. Johnson, 267 P.3d 1125 (Cal. 2012), the California Supreme Court ruled that trial courts may deny self-representation under the circumstances permitted in Edwards but cautioned that “what is permissible is only what Edwards permits.” The Johnson Court instructed that the standard for denying self-representation “is simply whether 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.” Courts must be cautious in denying a request for self-representation, and they may not deny a request simply because they believe counsel could try the matter more efficiently or even more fairly. Johnson

Turning to the present case, the Court stated that the trial court denied Orosco’s Faretta request based on his confusion about two questions on the Faretta waiver form. However, the Court admonished that under Edwards and Johnson, “this was not an adequate basis to deny Orosco his Sixth Amendment right of self-representation.”

The Court explained that both Edwards and Johnson require the defendant’s inability to represent himself to be based upon a “severe mental illness.” Edwards. The Court further explained that “severe mental illness” is a condition precedent for the denial of a request for self-representation, i.e., the defendant must suffer from a severe mental illness in order for a constitutionally valid denial of the right to self-representation. United States v. Berry, 565 F.3d 385 (7th Cir. 2009); People v. Espinoza, 373 P.3d 456 (Cal. 2016).

However, there is no evidence in the record that Orosco suffered from any mental illness, much less a severe one, according to the Court. Consequently, neither Edwards nor Johnson authorized the trial court to deny Orosco his request for self-representation. Additionally, the Court stated that his momentary confusion on a couple of the questions on the Faretta waiver form isn’t evidence that he’s unable to carry out the basic tasks needed for self-representation. See Edwards. The Court stated that the Faretta waiver form “is not ... a test the defendant must pass to achieve self-representation.” People v. Silfa, 88 Cal. App. 4th 1311 (2001) (rejecting the People’s argument “that because defendant did not understand some matters on the waiver form, his waiver was not a ‘knowing and voluntary’ one”). Thus, the Court concluded that “there is no substantial evidence that Orosco was mentally incompetent to represent himself under the Edwards/Johnson standard.”

Based on the record, the trial court should at least have ordered a mental health evaluation of Orosco before denying his request for self-representation, the Court opined. See Johnson.

The Court noted that “[e]rroneous denial of a Faretta motion is reversible per se.” People v. Best, 49 Cal. App. 5th 747 (2020). This rule requires the reversal of the trial court’s judgment and remand of the matter for a new trial, the Court ruled.

Accordingly, the Court reversed and remanded for a new trial. See: People v. Orosco, 82 Cal. App. 5th 348 (2022). 

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