(B)

Warning of Dangers of Self-Representation.  The conviction can be vacated if the defendant was erroneously allowed to proceed in pro per in the prior proceedings because of a failure to warn the defendant of the dangers and disadvantages of self-representation.[26]

 

The United States Supreme Court, however, has held that it is not necessary, in a guilty plea context, for the court taking a waiver of the right to counsel expressly to inform the defendant of the dangers of self-representation.[27]

 

            Federal constitutional law requires the court to conduct a thorough inquiry to determine whether a waiver of counsel was knowingly and intelligently made before allowing a defendant self-representation:[28]

 

In order for a defendant to effectuate a valid waiver of the Sixth Amendment right to counsel, the trial court must undertake a thorough inquiry to ensure that the defendant has made an informed decision.  Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948) (plurality opinion).  The standard for waiver in the Ninth Circuit is that the trial court should discuss with the defendant in open court whether the wavier is being made knowingly and intelligently, with an understanding of the charges, the possible penalties, and the dangers of self‑representation.[29]

 

            The record as a whole may not reveal a knowing and intelligent waiver.[30]  In determining this, the courts must consult “the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.”[31]  Where there is no adequate judicial inquiry, the waiver is normally invalid, and the court can find a valid waiver, based on the totality of the circumstances, only as “a limited exception, to be applied in rare cases.”[32]

 

            A waiver of counsel in a misdemeanor case is subject to the same standard as in a felony case, requiring the court to warn the defendant about the dangers and disadvantages of self-representation.[33]  The federal court of appeals expressly disagreed with a California Supreme Court decision,[34] which concluded that a defendant need not be informed of the dangers and disadvantages of self-representation when pleading to a misdemeanor.  The federal court distinguished an Eighth Circuit decision, the only other federal case found to interpret the meaning of a knowing waiver under 18 U.S.C. § 921(a)(33)(B), in which the defendant had first invoked the right to counsel, then waived it when counsel failed to appear.[35]  The Ninth Circuit held that in that case, the defendant had initially recognized the usefulness of counsel, but did not do so in the present case.[36]

 

Where a defendant has requested self-representation, but the court has not yet ruled, defense counsel has a professional obligation to continue representing the client, and the conviction will be reversed on grounds of ineffective assistance of counsel where s/he does not do so and prejudice is shown.[37]

 

[26] People v. Noriega (1997) 59 Cal.App.4th 311; People v. MacKenzie (1983) 34 Cal.3d 616, 629; United States v. Balough, 820 F.2d 1485, 1487-1490 (9th Cir. 1987); United States v. Keen, 96 F.3d 425 (9th Cir. 1996), rhg. den. and amended opinion filed, 104 F.3d 1111 (9th Cir. 1997); Snook v. Wood, 89 F.3d 605 (9th Cir. 1996).

[27]    Iowa v. Tovar, 541 U.S. 77 (March 8, 2004)(for a plea without counsel to be "knowing and intelligent," the trial court must inform the accused of the nature of the charges against him, of his right to counsel regarding his plea, and of the range of allowable punishments, but not of the risk that a viable defense will be overlooked, or that he will lose the opportunity to obtain an independent opinion on whether it is wise for him to plead guilty).

[28] See United States v. Van Krieken, 39 F.3d 277 (9th Cir. 1994).

[29] United States v. Dujanovic, 486 F.2d 182, 186‑187 (9th Cir. 1983) [emphases supplied]; see also United States v. Harris, 683 F.2d 322 (9th Cir. 1982); United States v. Ant, 882 F.2d 1389, 1394 (9th Cir. 1989).

[30] United States v. Harris, 683 F.2d 322, 324 (9th Cir. 1982).

[31] United States v. Kimmel, 672 F.2d 720, 722 (9th Cir. 1982).

[32] United States v. Harris, supra, 683 F.2d at 324.  See also United States v. Aponte, 591 F.2d 1247, 1250 (9th Cir. 1978); United States v. Balough, 820 F.2d 1485, 1488 (9th Cir. 1987).

[33] United States v. Akins, 243 F.3d 1199 (9th Cir. 2001).

[34] In re Johnson (1965) 62 Cal.App.2d 325, 398 P.2d 420.

[35] United States v. Smith, 171 F.3d 617 (8th Cir. 1999).

[36] United States v. Akins, 243 F.3d 1199 (9th Cir. 2001).

[37] Appel v. Horn, 250 F.3d 203 (3d Cir. 2001) (counsel’s failure toinvestigate mental competency of client, after client requested self-representation but before court relieved counsel, constituted denial of counsel).

GROUNDS " WAIVER -- RIGHT TO COUNSEL " PROOF OF PRIOR EXPERIENCE WITH CRIMINAL JUSTICE SYSTEM
Parke v. Raley, 506 U.S. 20, 37, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) (We have previously treated evidence of a defendant's prior experience with the criminal justice system as relevant to the question whether he knowingly waived constitutional rights ....).

GROUNDS " WAIVER -- RIGHT TO COUNSEL " PROOF OF PRIOR EXPERIENCE WITH CRIMINAL JUSTICE SYSTEM
Parke v. Raley, 506 U.S. 20, 37, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) (We have previously treated evidence of a defendant's prior experience with the criminal justice system as relevant to the question whether he knowingly waived constitutional rights ....).

GROUNDS " RIGHT TO COUNSEL " WAIVER " PRACTICE ADVISORY " HOW TO ESTABLISH AN INVALID WAIVER
To sustain a claim that a court took an invalid waiver of the right to counsel, or the right to appointed counsel, counsel must establish certain facts. First, it is essential to offer evidence that the defendant was unaware of the right to counsel, or the right to appointed counsel, as to which he is claiming the waiver was constitutionally invalid. See United States v. Pino Gonzalez, ___ F.3d ___, 2011 WL 911490 (5th Cir. March 17, 2011), and cases cited. Second, the test is very fact-specific. The Supreme Court has held that it depends on whether the waiver of the right to counsel was knowing, voluntary, and intelligent: We have described a waiver of counsel as intelligent when the defendant knows what he is doing and his choice is made with eyes open. We have not, however, prescribed any formula or script to be read to a defendant who states that he elects to proceed without counsel. The information a defendant must possess in order to make an intelligent election, our decisions indicate, will depend on a range of case-specific factors, including the defendant's education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding. Iowa v. Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004) (citations omitted). Therefore, counsel must prove the defendant lacked sophistication, the charge is complex, and elaborate the difficulties of representing himself at the particular stage of the proceeding. In addition, counsel should offer evidence of how little relevant prior experience the defendant has had with the criminal justice system. We have previously treated evidence of a defendant's prior experience with the criminal justice system as relevant to the question whether he knowingly waived constitutional rights .... Parke v. Raley, 506 U.S. 20, 37, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) (We have previously treated evidence of a defendant's prior experience with the criminal justice system as relevant to the question whether he knowingly waived constitutional rights ....). Finally, courts are suspicious of the veracity of the defendant in the post-conviction context. E.g., In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713 (1992)(disbelieving defendants uncorroborated assertions). Counsel must therefore take pains to corroborate every possible aspect of the defendants declaration. Many of these same considerations apply to claims of invalid waivers of other constitutional rights as well.

Other

GROUNDS " RIGHT TO COUNSEL " WAIVER " PRACTICE ADVISORY " HOW TO ESTABLISH AN INVALID WAIVER
To sustain a claim that a court took an invalid waiver of the right to counsel, or the right to appointed counsel, counsel must establish certain facts. First, it is essential to offer evidence that the defendant was unaware of the right to counsel, or the right to appointed counsel, as to which he is claiming the waiver was constitutionally invalid. See United States v. Pino Gonzalez, 636 F.3d 157, 2011 WL 911490 (5th Cir. March 17, 2011), and cases cited. Second, the test is very fact-specific. The Supreme Court has held that it depends on whether the waiver of the right to counsel was knowing, voluntary, and intelligent: We have described a waiver of counsel as intelligent when the defendant knows what he is doing and his choice is made with eyes open. We have not, however, prescribed any formula or script to be read to a defendant who states that he elects to proceed without counsel. The information a defendant must possess in order to make an intelligent election, our decisions indicate, will depend on a range of case-specific factors, including the defendant's education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding. Iowa v. Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004) (citations omitted). Therefore, counsel must prove the defendant lacked sophistication, the charge is complex, and elaborate the difficulties of representing himself at the particular stage of the proceeding. In addition, counsel should offer evidence of how little relevant prior experience the defendant has had with the criminal justice system. We have previously treated evidence of a defendant's prior experience with the criminal justice system as relevant to the question whether he knowingly waived constitutional rights .... Parke v. Raley, 506 U.S. 20, 37, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) (We have previously treated evidence of a defendant's prior experience with the criminal justice system as relevant to the question whether he knowingly waived constitutional rights ....). Finally, courts are suspicious of the veracity of the defendant in the post-conviction context. E.g., In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713 (1992)(disbelieving defendants uncorroborated assertions). Counsel must therefore take pains to corroborate every possible aspect of the defendants declaration. Many of these same considerations apply to claims of invalid waivers of other constitutional rights as well.

CAL POST CON " POST CON RELIEF " GROUNDS " LACK OF ADVICE ON ACTUAL IMMIGRATION CONSEQUENCES OF PLEA BY UNREPRESENTED DEFENDANT " POTENTIAL GROUNDS TO VACATE THE CONVICTION
The narrow holding of Padilla does not apply where a defendant represented him- or herself in the criminal case, because there is no defense counsel in the case who is obligated affirmatively to give accurate advice concerning the immigration consequences of the plea. Where the court takes a waiver of the right to (appointed) counsel, it is obligated to advise the defendant concerning the dangers and disadvantages of self-representation. After Padilla, one of those dangers is that the court is not obligated to give the defendant accurate immigration advice, whereas counsel, appointed or not, is obligated to do so under Padilla. Post-conviction counsel could argue that the court is therefore now required to warn a defendant who waives counsel of the disadvantage of waiving counsel caused by losing the right to accurate advice concerning the immigration consequences of the plea. Cf. Iowa v. Tovar,541 U.S. 77, 81, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004). In California state courts even prior to Padilla, and in the Ninth Circuit after Padilla, the courts have held that a defendants ignorance concerning the actual immigration consequences of a plea can constitute good cause to withdraw the plea. See People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 114 Cal.Rptr. 596; United States v. Bonilla, 637 F.3d 980, 986 (9th Cir. 2011) (holding that defense counsel's inadequate legal advice regarding the immigration consequences of a guilty plea constituted a "fair and just" reason for withdrawing the plea under Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure). The traditional rule is that the court has no constitutional obligation to give any advice to the defendant concerning the adverse immigration consequences (even the possible ones) at the time of plea, only the direct penal consequences. Some appellants have raised claims on appeal that after Padilla, these consequences have now become direct consequences, but the courts have so far uniformly rejected this claim. Padilla itself does not say whether deportation consequences are direct or collateral, since it was irrelevant to the ineffective assistance of counsel claim before the court. It is nonetheless possible to raise this claim still, arguing that Padillas holding that deportation is a penalty changed this rule. The correct view, however, is that even after Padilla, immigration consequences are not direct penal consequences because they are not imposed by the criminal court. Padilla does not change this. It simply says that even if deportation consequences are collateral, defense counsel still has the duty to advise the defendant accurately concerning them. In my opinion, it is a lost cause to try to label immigration consequences direct and therefore impose the duty on the court to advise the defendant correctly concerning them, as Padilla requires of defense counsel. This is because the court has no duty to investigate the defendants immigration status, and has no duty to do the legal research necessary to identify the exact immigration consequences that will befall the defendant if he or she takes this plea. It is unreasonable to impose these duties of counsel on the court, and the court in some jurisdictions, like California, is forbidden to inquire as to the defendants immigration consequences. See California Penal Code 1016.5(d)(last sentence). The most that can reasonably be expected of the court is to make sure counsel performs the duty dictated by Padilla, and to make sure the defendant knows that by waiving counsel, s/he is waiving the right to have this information concerning the actual (as opposed to merely potential) immigration consequences of the plea.