Filed 7/25/14 P. v. Clements CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B248854

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA094243)
         v.

OTIS CLEMENTS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Arthur
H. Jean, Jr., Judge. Affirmed.


         Eileen M. Rice, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Kimberley J.
Baker-Guillemet, Deputy Attorneys General, for Plaintiff and Respondent.




                                                       ******
       Otis Clements appeals from the judgment entered following a jury trial in which
he was found guilty of inflicting corporal injury on a cohabitant in violation of Penal
Code section 273.5, subdivision (a)1 (count 1) and inflicting injury on a child (§ 273a,
subd. (a) (count 2). In a separate proceeding, the trial court found true the allegation that
appellant suffered a prior conviction within the scope of the Three Strikes law (§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced appellant to the upper
term of six years for the base term on count 2, plus six years pursuant to sections
1170.12, subdivisions (a)-(d)/667, subdivisions (b)-(i), for a total sentence of 12 years.
On count 1, the trial court imposed an eight-year sentence to run concurrently to the
sentence imposed on count 2.
       Appellant’s sole issue on appeal is that the trial court did not sufficiently advise
him of the risks of self-representation when the court granted his request to proceed in
propria persona. Appellant was properly advised and we affirm the judgment.
                                          FACTS
       Because of the nature of the issue on appeal, we provide a brief summary of the
facts. In December 2012, D. B. and her three children, A., Ah., and T., lived with
appellant. D.B. and appellant had a “rocky” relationship that involved “a lot of verbal
abuse” and “a lot of threatening.” On December 14, 2012, D.B. paid appellant $50 for
maintenance work he had done in the home. Appellant was lying down and D.B. placed
the money on his side. Appellant told D.B. to “give the money to him like a woman.”
D.B. did not know what appellant meant by that remark and left to go to work. D.B.
returned home from work that night and went to bed at approximately 10:00 p.m.
       At some point after midnight on December 15, 2012, D.B. heard appellant enter
the bedroom. Appellant had been drinking and told D.B. that if she ever threw money in
his face he would “fuck [her] up.” Appellant told D.B. to repeat what he said and when
she failed to do so he punched her on the left cheek. D.B. jumped out of bed and ran to


1      All statutory references shall be to the Penal Code unless otherwise noted.
                                              2
the door. Appellant grabbed her shirt and ripped it. D.B. yelled, “You hit me.” A.,
D.B.’s 17-year-old son, was watching television downstairs when he heard shouting. He
came upstairs and told appellant, “I see what you are doing.” Appellant struck A. on the
left side of his face with a closed fist. A. called the police. D.B. took her three children
and left the house.
       When the police arrived they took pictures of D.B.’s injury and torn clothing. The
photographs were admitted into evidence at trial. A.’s mouth was bleeding and his injury
took “a couple of weeks to heal.” A photograph of his injury was also admitted into
evidence at trial.
       No evidence was presented on behalf of appellant.
                                       DISCUSSION
       Appellant contends the trial court erred when it allowed him to represent himself
at trial, in propria persona, “without sufficiently advising him of the risks of self-
representation.” He argues the error was prejudicial and the judgment must be reversed.
       A.      Procedural History
       On January 17, 2013, appellant was charged by amended information with
inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)) and inflicting injury on a
child (§ 273a, subd. (a)). Appellant was represented by a public defender at his
preliminary hearing.
       B.      Proceedings Below
       At proceedings held on April 2, 2013, the trial court indicated its intention to begin
the trial on the following day. Appellant requested a Marsden2 hearing. After the court
cleared the courtroom, appellant stated, “Your Honor, I would like to go pro per in this
matter . . . .” The trial court asked appellant if he would be ready for trial the following
morning. The trial court stated, “You understand you are going to trial. You are going to
stand in front of twelve citizens all by yourself. If that’s what you want to do all by


2      People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
                                               3
yourself we can talk about it.” The court stated that it was going to treat appellant’s
Marsden request as a motion to proceed in propria persona (see Faretta v. California
(1975) 422 U.S. 806 (Faretta)). Defense counsel stated that appellant believed his prior
conviction was not a strike because the jury found him “guilty of robbery but not guilty
of the gun use.” Defense counsel explained to appellant that he was mistaken but that she
would file a Romero3 motion at the conclusion of the trial, if appellant were convicted.
Following an off-the-record discussion with his defense counsel, appellant stated, “I have
no choice. I have to go pro per.” The trial court instructed defense counsel to get
appellant a “pro per form”4 and indicated a discussion would take place after the lunch
recess.
          When proceedings resumed in the afternoon, appellant stated he still wanted to
represent himself at trial. The trial court asked appellant if he understood that a jury
would be picked in the morning and asked appellant if he was ready to go forward. The
following colloquy occurred:
          “[APPELLANT]: Well, I have no choice, Your Honor.
          “THE COURT: Yes, you do have a choice. You have a very fine lawyer. She is
a very capable person. You know, if you have a broken leg, just a little simple break, just
a little crack in the bone, you could put a splint on it yourself and be careful and probably
feel just fine. You could be your own doctor. If you have a compound fracture where the
bone is sticking out of the skin, you would need professional medical help. You probably
couldn’t do it yourself. If you tried, you would probably find yourself infecting yourself,
getting a terrible infection. You are going to find yourself dying. This is a felony that
you are charged with. You could spend seven or eight, nine years in prison, at least.
What’s the maximum?
          “[PROSECUTOR]: Fourteen six.


3         People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

4         Advisement and Waiver of Right to Counsel–Faretta Waiver.
                                             4
       “THE COURT: Fourteen plus six.
       “[APPELLANT]: Twenty years?
       “[PROSECUTOR]: Fourteen plus six months.
       “THE COURT: So you have the legal equivalent of a compound fracture. And in
my view, in my experience, you should not represent yourself. And I recommend that
you don’t. I personally don’t care whether you do or you don’t. You have the right, if
that’s what you want. You are not going to make it any harder for me. It is going to be
hard for you. And I am an expert in the criminal law. When I say that, I don’t mean to
say I have all of the answers. I don’t. But I know a lot. And if I were charged with a
crime, I would never go into a courtroom without a lawyer. If I were charged with what
you are charged with, I wouldn’t go into a courtroom without a lawyer. You have to
understand that I am urging you not to represent yourself. But you can. You don’t have
to explain it to me. It is your decision. If you want to, I will find that you are making a
knowing, intelligent and voluntary waiver of your right to a lawyer. So you choose.
       “[APPELLANT]: I can’t explain?
       “THE COURT: I don’t want an explanation. I want you to say I want to keep my
lawyer or I want to be pro per, understanding that I am going to trial tomorrow.
       “[APPELLANT]: I am going to trial tomorrow.
       “THE COURT: And you want to be pro per?
       “[APPELLANT]: Yes.
       “THE COURT: [Defense counsel], you are relieved. We will see you tomorrow
morning.”
       The following day, prior to jury selection, appellant indicated that he needed to
call D.B.’s younger son, Ah., as a witness, but had not subpoenaed him. The court asked
the prosecutor to ask D.B. to bring Ah. to court and asked appellant if Ah. was the only
witness he needed. Appellant replied, “That’s it. Thank you.” The jury was empaneled
and the trial began.



                                              5
       C.     Advisement and Waiver of Right to Counsel–Faretta Waiver
       On April 2, 2013, appellant initialed and signed a four-page form entitled
“Advisement and Waiver of Right to Counsel (Faretta Waiver).” In the Faretta form,
appellant certified to the court that he could read and write, and that he understood he had
certain constitutional rights, including the right to an attorney at no cost and the right to
self-representation. In support of his request to act as his own attorney, appellant
indicated that the highest level of education he reached was grade 12. Thirteen separate
“dangers and disadvantages” of not having an attorney were identified on the form, and
appellant initialed each of them. In the admonitions, appellant was advised that he must
follow all the technical rules of substantive law and procedure; that the case against him
would be handled by an experienced prosecutor and appellant would get no special
consideration or assistance from the court; that it would be difficult for appellant to
contact witnesses and investigate his case because of his custodial status; and that if he
were convicted, he could not complain on appeal of ineffective assistance of counsel.
       In the section entitled “Charges and Consequences” on appellant’s Faretta form,
appellant stated he understood that he was “giving up having a professional attorney”
explain to him what crimes he was charged with and any possible legal defense he may
have to those crimes; explain to him which charges required proof of general intent,
specific intent or mental state, and what state of mind might apply to any defense he had;
what facts must be proved before he could be found guilty; and if convicted, any posttrial
motions and sentencing options available.
       In the section entitled “Court’s Advice and Recommendation,” appellant initialed
the admonition which indicated he understood that it was the advice and recommendation
of the trial court that he not represent himself and that he accept a court-appointed
attorney. Appellant acknowledged that if he accepted a court-appointed attorney, a trial
attorney would be assigned to defend him, and that attorney would be able to investigate




                                               6
his case, file pretrial motions, conduct the trial and generally advise appellant on what to
do. Appellant also indicated he understood that, on any appeal from a conviction, his
petition to represent himself would be considered by the Court of Appeal in determining
whether he knowingly and intelligently waived his right to legal counsel. Appellant
certified the Faretta form as follows: “I have read, understood and considered all of the
above warnings included in this petition, and I still want to act as my own attorney. I
freely and voluntarily give up my right to have a professional attorney represent me.”
Appellant signed and dated the form.
       D.     Applicable Legal Principles
       “A defendant in a criminal case possesses two constitutional rights with respect to
representation that are mutually exclusive.” (People v. Marshall (1997) 15 Cal.4th 1,
20.) “[T]he Sixth Amendment guarantees a defendant a right to counsel but also allows
him to waive this right and to represent himself without counsel.” (U.S. v. Erskine (9th
Cir. 2004) 355 F.3d 1161, 1167.) Thus, in any case in which a Faretta request for self-
representation has been made, the court must evaluate, sometimes under problematic
circumstances, two countervailing considerations: on one hand, the defendant’s absolute
right to counsel, which must be assiduously protected; on the other hand, the defendant’s
unqualified constitutional right to discharge counsel if he pleases and represent himself.
(People v. Sullivan (2007) 151 Cal.App.4th 524, 545 (Sullivan).)
       ‘“When confronted with a request’ for self-representation, ‘a trial court must make
the defendant “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.] . . . [Citation.]” (People v. Stanley (2006) 39 Cal.4th 913, 932
(Stanley).) “In order to deem a defendant’s Faretta waiver knowing and intelligent,” the
trial court “must insure that he understands 1) the nature of the charges against him, 2)
the possible penalties, and 3) the ‘dangers and disadvantages of self-representation.’




                                              7
[Citation.]” (U.S. v. Erskine, supra, 355 F.3d 1161, 1167.) The admonitions must also
“include the defendant’s inability to rely upon the trial court to give personal instruction
on courtroom procedure or to provide the assistance that otherwise would have been
rendered by counsel. Thus, a defendant who chooses to represent himself or herself after
knowingly, intelligently, and voluntarily forgoing the assistance of counsel assumes the
risk of his or her own ignorance, and cannot compel the trial court to make up for
counsel’s absence.” (People v. Barnum (2003) 29 Cal.4th 1210, 1214-1215.) The
defendant “should at least be advised that: self-representation is almost always unwise
and that the defense he conducts might be to his detriment; he will have to follow the
same rules that govern attorneys; the prosecution will be represented by experienced,
professional counsel who will have a significant advantage over him in terms of skill,
training, education, experience, and ability; the court may terminate his right to represent
himself if he engages in disruptive conduct; and he will lose the right to appeal his case
on the grounds of ineffective assistance of counsel. [Citation.] In addition, he should
also be told he will receive no help or special treatment from the court and that he does
not have a right to standby, advisory, or cocounsel. [Citation.] While this list of issues is
not exhaustive, it demonstrates that there are a number of matters the court must ask
about and consider before ruling on a defendant’s request to represent himself.” (People
v. Phillips (2006) 135 Cal.App.4th 422, 428.)
       “No particular form of words, however, is required in admonishing a defendant
who seeks to forgo the right to counsel and engage in self-representation. ‘“The test of a
valid waiver of counsel is not whether specific warnings or advisements were given but
whether the record as a whole demonstrates that the defendant understood the
disadvantages of self-representation, including the risks and complexities of the particular
case.’” [Citation.]” (People v. Lawley (2002) 27 Cal.4th 102, 140.) If the trial court’s




                                              8
warnings communicate powerfully to the defendant the “disadvantages of proceeding pro
se,” that is all “Faretta requires.” (Sullivan, supra, 151 Cal.App.4th at p. 546, quoting
Lopez v. Thompson (9th Cir. 2000) 202 F.3d 1110, 1118.)
        “The burden is on the defendant to demonstrate he did not knowingly and
intelligently waive his right to counsel.” (People v. McArthur (1992) 11 Cal.App.4th
619, 627.) In determining on appeal whether appellant invoked the right to self-
representation, we examine the entire record de novo. (Stanley, supra, 39 Cal.4th at p.
932.)
        E.    Analysis
        Appellant has failed to meet his burden of demonstrating that his waiver of his
right to counsel was not knowing and intelligent. Appellant’s contention that the trial
court did not “seek clarity around appellant’s request” and should have “ask[ed] appellant
a few questions to understand his statement that he would like to go pro per” are belied
by the record. After appellant expressed his desire to represent himself he completed a
four-page form entitled, “Advisement and Waiver of Right to Counsel (Faretta Waiver).”
The standardized waiver form included an extensive list of the “Dangers and
Disadvantages of Self-Representation” and also the “Charges and Consequences”
appellant faced, along with the “Court’s Advice and Recommendation” to not act as his
own attorney. Appellant, a high school graduate, initialed each and every section and
signed the form. Appellant did not raise any questions about the form and there is
nothing in the record to indicate he did not understand the waiver. That alone is
sufficient to find a knowing and intelligent waiver. As the California Supreme Court
explained in People v. Blair (2005) 36 Cal.4th 686 (Blair) (overruled on another point by
People v. Black (2014) 58 Cal.4th 912, 919), the advisement form serves as “a means by
which the judge and the defendant seeking self-representation may have a meaningful
dialogue concerning the dangers and responsibilities of self-representation.




                                             9
[Citation.] The court might query the defendant orally about his responses on the form,
to create a clear record of the defendant’s knowing and voluntary waiver of counsel.
[Citation.] The failure to do so, however, does not necessarily invalidate defendant’s
waiver, particularly when, as here, we have no indication that defendant failed to
understand what he was reading and signing.” (Blair, supra, 36 Cal.4th at p. 709,
overruled on other grounds in People v. Black (2014) 58 Cal.4th 912.)
       Here, the trial court went even further, and in the strongest terms advised appellant
that he “should not represent [himself].” The court advised appellant of the nature of the
charges against him. The court told appellant that if he were in appellant’s shoes and
faced similar charges he would not “go into a courtroom without a lawyer” despite the
fact that he is an expert in criminal law. The court informed appellant that he faced a
maximum penalty of 14 years and six months if convicted. The court told appellant he
had “the legal equivalent of a compound fracture” that required professional help. When
appellant stated he had “no choice” but to proceed in propria persona, the court told him
that he did have a choice because he had a “very capable” and “very fine lawyer.” The
trial court determined from the colloquy that appellant understood the complexity of the
charges and penalties he faced, and the disadvantages of proceeding without legal
representation. As a result, appellant’s decision to waive his right to counsel was done
“with eyes open.” (Faretta, supra, 422 U.S. at p. 835.)
       The combination of the signed Faretta waiver and the trial court’s advice and
recommendation adequately brought home to appellant the essential dangers of self-
representation. The record ‘“suggests no confusion on defendant’s part’ regarding the
‘risks of self-representation, or the complexities of his case, much less that his election to




                                              10
represent himself was other than voluntary.’” (Sullivan, supra, 151 Cal.App.4th at p.
553.)
                                    DISPOSITION
        The judgment is affirmed.
        NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           _____________________, J. *
                                                   FERNS
We concur:




____________________________, Acting P. J.
        ASHMANN-GERST


____________________________, J.
        CHAVEZ




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
                                              11
