People v. Williams CA2/8 ( 2021 )

Filed 1/21/21 P. v. Williams CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B297910 (consolidated with
B298105)
Plaintiff and Respondent,
(Los Angeles County
v. Super. Ct. Nos. SA098596
and SA096698)
RICKY MARSHAWN
WILLIAMS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Terry A. Bork, Judge. Reversed with
directions.
Catherine White, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Analee J. Brodie,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
INTRODUCTION
Appellant challenges revocation of two grants of probation.
He argues the trial court permitted him to represent himself
without advising him of his right to counsel and taking an
appropriate waiver of that right. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant Ricky Marshawn Williams was under two
separate grants of probation in case numbers SA098596 and
SA096698 when he was charged in a new complaint (the new
case) with one count of assault with a deadly weapon and two
counts of making criminal threats. The People moved to revoke
one grant of probation in SA098596, but not the other grant in
SA096698. At the October 10, 2018 arraignment on the new case,
the trial court entered a plea of not guilty and summarily revoked
probation in SA098596. The trial court calendared the new case
for a preliminary hearing and calendared the probation case for a
violation hearing setting on October 23, 2018. Both matters were
set in Department 32. Appellant was represented by the same
attorney in both matters.
Apparently, after the preliminary hearing, the two matters
became separated because for several appearances, they were
calendared on different dates, albeit in the same courtroom. On
October 23, 2018, the probation matter was transferred to
Department 117 for a possible probation violation hearing
setting. For a period of months, Department 117 continued the
violation hearing setting to December 4, 2018, January 9, 2019,
January 22, 2019, February 5, 2019, February 27, 2019, March 6,
2019 and finally to March 7, 2019. In each of these court
appearances, when appellant was present, he was represented by
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appointed counsel. Each minute order also reflects that the
probation violation was trailing the new case.
As for the new case, presumably following the preliminary
hearing, it was transferred to Department 117 and an
information was filed on November 6, 2018. (The clerk’s
transcript includes no information about the preliminary hearing
or any minute orders until February 27, 2019.)
On February 27, 2019, appellant appeared in Department
117 with counsel at a pretrial hearing on the new case only.
Appellant asserted his right to represent himself under Faretta v.
California (1975) 422 U.S. 806 (Faretta). The court properly
warned him of the dangers of self-representation, took the
waiver, and appointed standby counsel in that case. The trial
court then continued the new case to March 6, 2019 to address
motions and discovery issues.
Although the probation violation hearing in SA098596 was
trailing the new case, there was no mention made of it during the
trial court’s advisement to appellant about his Faretta rights.
Neither did appellant expressly state he wanted to exercise his
Faretta rights with respect to the probation matter as well.
Apparently, however, everyone believed counsel had been
relieved on the probation violation matter too because appellant’s
former counsel never appeared again on his behalf in either case.
Further, not once did appellant or the People or the court ever
inquire on the record about former counsel’s failure to appear at
future appearances in the probation revocation matter.
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On March 5, 2019, in the new case, the trial court
continued the March 6 date to March 7, 2019. On March 7, 2019,
appellant appeared in propria persona and the trial court
addressed motions and discovery issues. It then set the new case
in Department 100 on March 8, 2019, to be sent out for trial.
In the meantime, the probation revocation matter, last on
calendar for March 7, 2019, was also continued to March 8 to
trail the new case. For the first time appellant was listed on
March 7 as appearing in propria persona.
The two matters rejoined each other in Department 100 on
March 8, 2019. They were both sent to Department 128 for trial
and violation hearing. Appellant was listed as representing
himself in both matters.
On March 8, 2019, trial on new case commenced with
appellant representing himself. The People asked the court to
hear the probation violation concurrently with the trial. The
court agreed.
Trial concluded and the jury retired to deliberate. During
deliberations, the People asked the court to revoke appellant’s
probation based on the evidence presented at trial. The court
demurred, stating it wanted to await the jury’s verdict.
On March 19, 2019, the jury acquitted appellant of all new
charges. After the verdict, the People again asked the court to
revoke appellant’s probation based on the evidence adduced at
trial. There was some confusion as to how many grants of
probation were pending. The court ordered a supplemental
probation report to verify all open probation grants and
continued the violation hearing to April 2, 2019.
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The supplemental probation report showed appellant had
three separate pending grants of probation – the two cases set
out above and a third grant in misdemeanor case number
6CJ15319. At the revocation hearing on April 2, 2019, the court
noted appellant was appearing in propria persona and stated it
was considering revocation of all three grants of probation. The
People represented they were relying on the trial evidence as the
bases upon which to revoke all three grants of probation for
failure to “obey all laws.” Appellant told the court he was not
exactly sure what the prosecutor meant by the “unlawful
behavior for not obeying all laws.” Nonetheless, relying on the
evidence at trial, the court found appellant in violation of all
three grants of probation for failure to obey all laws.
At this point appellant requested appointment of counsel
for sentencing, waiving his right to represent himself. In so
doing, he told the court he wanted the assistance of counsel
because “I believe that I’ll have a better ability to understand
what’s going on as far as the sentencing.” The court appointed
former standby counsel on appellant’s behalf and continued
sentencing to April 19, 2019.
With counsel now representing appellant, on April 24,
2019, the trial court heard argument and sentenced appellant to
the upper term of three years in SA098596; one-year consecutive
jail time in SA096698; and one-year consecutive jail time in
6CJ15319. (Case number 6CJ15319 is a misdemeanor case not
part of this appeal.)
Appellant timely filed two notices of appeal which we
consolidated.
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DISCUSSION
On appeal, appellant contends he was never advised of his
right to counsel in the probation revocation cases or of the risks
and danger of self-representation in those same cases as required
by Faretta. And that does appear to be the case. One probation
violation case (SA098596) was trailing and not on calendar when
appellant appeared and asserted his right to represent himself on
the new case; the other revocation case (SA096698) was never
even on calendar until after the supplemental probation report
revealed additional probation grants. Neither advisements about
the right to counsel nor proper Faretta waivers in these two
probation revocation cases appear in the record.
California law is clear that probationers are entitled to
counsel in probation revocation proceedings as a matter of state
law. (People v. Vickers (1972) 8 Cal.3d 451, 461–462 (Vickers)
[California Supreme Court “judicially declared rule of criminal
procedure” requires probationers to be presented by counsel at
formal proceedings for the revocation of probation].) As the
Vickers court stated, “The violation of a condition of probation is
often a matter of degree or quality of conduct, and the point when
a violation occurs often is a matter of technical judgment. . . .
With counsel’s assistance the proceedings will move to an orderly,
just conclusion [citation] in the best interests of both the
probationer and the People.” (Id. at p. 461.)
California law is also clear that when a defendant invokes
his right to represent himself in probation revocation
proceedings, the court’s subsequent advisement must warn the
defendant of the pitfalls of self-representation in that context so
the record will establish that “ ‘ “his choice is made with eyes
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open.” ’ ” (People v. Hall (1990) 218 Cal.App.3d 1102, 1105
(Hall).)
Based on Hall, we are compelled to reverse the revocations
of probation. In Hall, like here, defendant represented himself at
trial. He was convicted and sentenced to probation. More than
two years later, Hall was found in violation of probation in that
he had failed to “obey all laws.” He represented himself through
the probation revocation and sentencing proceedings, just like he
had at trial. Nowhere did the record indicate that Hall was ever
advised of his right to counsel at the revocation hearing or of the
dangers and disadvantages of self-representation. The court of
appeal reversed the revocation of probation and remanded for a
new revocation and sentencing hearing, the error being reversible
per se. (Hall, supra, 218 Cal.App.3d at pp. 1108–1109.)
The People argue that because Vickers is a judicially
created rule of criminal procedure rather than a constitutional
holding, the trial court’s omissions should be treated as harmless.
We disagree. In extending the right to counsel in probation
revocation proceedings, the Vickers court noted the vagaries
presented by such proceedings, stating, “A violation may be of
such little consequence that a probationer may not even be aware
of his transgression. An explanation of his intents and motives
might well establish that he was not volitionally guilty of any
misconduct. However, he too often lacks the training and poise to
present to either his probation officer or the court his explanation
in a persuasive manner, although or perhaps because the stakes
are high.” (Vickers, supra, 8 Cal.3d at p. 461.) It went on: “[W]e
are of the view . . . that the efficient administration of justice
requires that the defendant be assisted by retained or appointed
counsel at all revocation proceedings other than at summary
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proceedings had while the probationer remains at liberty after
absconding.” (Ibid.) Given the strong stance the Vickers court
took in extending the right to counsel to probation revocation
proceedings, we see no reason to apply the harmless error rule
just because the rule was judicially, rather than constitutionally,
created.
Even if we were inclined to apply the harmless error rule
set out in People v. Watson (1956) 46 Cal.2d 818 as urged by the
People, we would not find the error harmless. The People sought
to revoke appellant’s probation based on the facts adduced at
trial, upon which appellant had been acquitted. Based on
appellant’s comments after trial that he did not understand the
People’s argument about “obeying all laws,” it is clear to us he did
not understand the different standards of proof applicable to trial
and to probation revocation proceedings. (In re Coughlin (1976)
16 Cal.3d 52, 58 [evidence which is insufficient or inadmissible to
prove guilt at trial nevertheless may be considered in
determining whether probation should be revoked].) This
difference is neither intuitive nor easy for the lay person to
understand. Had appellant been advised by the court about the
advantages and disadvantages of representing himself in the
context of a revocation proceeding, as opposed to a trial, he could
have made an informed decision about whether to go forward in
propria persona. The absence of an appropriate Faretta
advisement on this record was not harmless.
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DISPOSITION
The orders revoking probation are reversed. The trial court is
directed to conduct new revocation proceedings after affording
appellant the assistance of counsel.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
BIGELOW, P. J.
GRIMES, J.
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