(C)

Sufficiency of Warning.  To ensure a knowing and intelligent waiver, the court must advise the defendant on three aspects of self-representation: (1) the nature of the charges against him; (2) the possible penalties; and (3) the dangers and disadvantages of self-representation.[38]  If the court fails to address any of these three concerns, the conviction must be set aside.  There is no harmless error analysis, as the failure to adequately advise undermines the entire function of the Sixth Amendment right to counsel.[39] 

 

            There is no mechanical formula which the court must follow when warning the defendant of the dangers of self-representation.[40]  At a minimum, the court must attempt to describe the adverse consequences and explain the specific dangers and disadvantages of self-representation.  There is no requirement that the court assess the defendant’s knowledge of the law or courtroom procedure – the focus is on the defendant’s understanding of the importance of counsel.[41] 

 

Since 1978, the Ninth Circuit has reversed dozens of convictions in published opinions because of the failure of district courts to explain sufficiently the dangers and disadvantages of self-representation.[42]  As guidance, the court has provided the following sample colloquy:

 

The court will now tell you about some of the dangers and disadvantages of representing yourself. You will have to abide by the same rules in court as lawyers do. Even if you make mistakes, you will be given no special privileges or benefits, and the judge will not help you.  The government is represented by a trained, skilled prosecutor who is experienced in criminal law and court procedures. Unlike the prosecutor you will face in this case, you will be exposed to the dangers and disadvantages of not knowing the complexities of jury selection, what constitutes a permissible opening statement to the jury, what is admissible evidence, what is appropriate direct and cross examination of witnesses, what motions you must make and when to make them during the trial to permit you to make post-trial motions and protect your rights on appeal, and what constitutes appropriate closing argument to the jury.[43]

 

            The law of waiver of the right to counsel applies equally where a defendant enters a guilty plea:

 

A waiver of the constitutional right to the assistance of counsel is of no less moment to an accused who must decide whether to plead guilty than to an accused who stands trial.[44]

 

            The waiver of the right to counsel must also be voluntary: it may not be motivated by an unconstitutional reason, such as ineffective assistance of appointed counsel.[45] 

 

            As it must be, state law is equally protective of an accused’s right to counsel:

 

The court cannot accept a waiver of counsel from anyone accused of a serious public offense without first determining that he understands the nature of the charge, the elements of the offense, the pleas and defenses which may be available, and the punishments which may be exacted [citation]; and the education, experience, mental competence and conduct of the accused are elements in determining whether there has been an intelligent waiver of counsel [citation].[46]

 

“[W]aivers of constitutional rights must, of course, be ‘knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.’  [Citation.]”[47]

 

            The California Judges Benchbook[48] sets forth the following admonition regarding self-representation:

 

The defendant should be made aware of the disadvantages of self-representation.  The defendant should be warned that (a) self-representation is almost always unwise and the defendant may conduct a defense to his or her own detriment; (b) the defendant will have to abide by the same rules as lawyers and will get no assistance from the judge; (c) the People will be represented by experienced counsel who will have the advantage of skill, training and ability; and (d) the defendant will have no special library privileges nor a staff of investigators at his or her beck and call.

 

            People v. Lopez[49] contained the following graphic warning:

 

[T]he prosecution will be represented by an experienced professional counsel who, in turn, will give him no quarter because he does not happen to have the same skills and experience as the professional.  In other words, from the standpoint of professional skill, training, education, experience, and ability, it will definitely not be a fair fight. It would be Joe Louis vs. a cripple, or Jack Nicklaus vs. a Sunday hacker.

 

            The Ninth Circuit case of United States v. Fuller is instructive with respect to the interplay between the waiver of the right to counsel and the immigration consequences of the conviction.[50]  The defendant was charged with a violation of 18 U.S.C. § 1546(a), use of a false visa.  She entered a guilty plea without benefit of counsel and was sentenced to three years unsupervised probation.  The most important consequence of her uncounseled guilty plea was not the criminal penalty, but was rather the fact that the minor conviction was causing her imminent deportation.[51]  After first finding the trial court failed to engage in the proper inquiries required by the Constitution, the court of appeal concluded it could not find a knowing and intelligent waiver on the record:

 

We have held that, in an exceptional case, the record may support an uncounseled guilty plea even where the trial court deviates from the comprehensive inquiries ordinarily required.  We have done so only when the deprivation was less significant than in this case, and where circumstances such as age, previous experience with the law, education and other factors supported a finding of knowing waiver of the right to counsel.[52]

 

            In sum, the plea should be set aside when the record fails to disclose the painstaking and thorough inquiry necessary before a court may accept a waiver of the precious right to counsel.  The need for counsel is particularly acute in the cases of many immigrants, who may not be familiar with the English language or the cultural tradition and court system in use in the United States.[53]

[38] United States v. Henderson, 203 F.3d 614  (9th Cir. 2000). 

[39] Ibid. (finding a Sixth Amendment violation where the court made no effort to advise the defendant on the three aspects of self-representation); United States v. Forrester, 495 U.S. 1041 (2007).

[40] United States v. Hayes, 231 F.3d 663, 1132 (9th Cir. 2000). 

[41] Ibid.

[42] Ibid. (citing Bribiesca v. Galaza, 215 F.3d 1015 (9th Cir. 2000)); United States v. Hernandez, 203 F.3d 614 (9th Cir.2000); United States v. Keen, 96 F.3d 425 (9th Cir. 1996); Snook v. Wood, 89 F.3d 605 (9th Cir. 1996); United States v. Mohawk, 20 F.3d 1480 (9th Cir. 1994); Hendricks v. Zenon, 993 F.2d 664 (9th Cir. 1993); United States v. Fuller, 941 F.2d 993 (9th Cir. 1991); United States v. Wadsworth, 830 F.2d 1500 (9th Cir. 1987); United States v. Balough, 820 F.2d 1485 (9th Cir. 1987); United States v. Rylander, 714 F.2d 996 (9th Cir. 1983); United States v. Harris, 683 F.2d 322 (9th Cir. 1982); United States v. Kimmel, 672 F.2d 720 (9th Cir. 1982); United States v. Bird, 621 F.2d 989 (9th Cir. 1980); United States v. Aponte, 591 F.2d 1247 (9th Cir. 1978); United States v. Gillings, 568 F.2d 1307 (9th Cir. 1978).

[43] Ibid. 

[44] United States v. Fuller, 941 F.2d 993 (9th Cir. 1991), quoting Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 92 L.Ed. 309  (2000) (plurality opinion).  See also United States v. Ant, supra.

[45] In Crandell v. Bunnell, 25 F.3d 754 (9th Cir. 1994), the court reversed a habeas dismissal and remanded for an evidentiary hearing where petitioner alleged that his waiver of counsel was motivated by the fact his appointed counsel had done nothing for months and would not even communicate with him.  The court held that “[a] criminal defendant may be asked to choose between waiver and another course of action so long as the choice presented to him is not constitutionally offensive.”  Ibid., citing United States v. Robinson, 913 F.2d 712, 714 (9th Cir. 1990), quoting United States v. Moya-Gomez, 860 F.2d 706, 739 (7th Cir. 1988).  “Crandell could not have been forced to choose between incompetent counsel and no counsel at all, see Lofton v. Procunier, 487 F.2d 434, 436 (9th Cir. 1973) . . . .” Ibid.

[46] People v. Hardin (1962) 207 Cal.App.2d 336, 24 Cal.Rptr. 563, 566.

[47] In re Moss (1985) 175 Cal.App.3d 913, 926, 221 Cal.Rptr. 645, quoting People v. Mroczko (1983) 35 Cal.3d 86, 110, 197 Cal.Rptr. 52, in turn quoting Brady v. United States, 397 U.S. 742, 748; 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

[48] California Judges Benchbook, 21, § 1.45 (1991) (citing People v. Lopez (1977) 71 Cal. App. 3d 568).

[49] People v. Lopez (1977) 71 Cal. App. 3d 568.

[50] United States v. Fuller, 941 F.2d 993 (9th Cir. 1991).

[51] The defendant in Fuller was actually aware that deportation was a likely result of her guilty plea.  United States v. Fuller, supra, 941 F.2d 993.  Even so, the court found the waiver of counsel invalid.

[52] United States v. Fuller, supra, 941 F.2d at 996 (emphasis supplied).

[53] See United States v. Gillings, 568 F.2d 1307, 1309 (9th Cir. 1978) [“pro forma answers to pro forma questions” are inadequate to establish waiver of counsel]; People v. Hardin, supra [defendant uttered no words except “Yes, sir,” “No, sir” and “Guilty”; other indications of non‑understanding led to conclusion no adequate waiver of counsel]; see also People v. Grayson (1992) 8 Cal.App.4th 168, 10 Cal.Rptr.2d 392.

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.