Filed 6/27/16




                IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                           S065573
           v.                        )
                                     )
FRANK KALIL BECERRA,                 )
                                     )                     Los Angeles County
           Defendant and Appellant.  )                   Sup. Ct. No. BA 106878
____________________________________)


        Defendant Frank Kalil Becerra was convicted by jury of the first degree
murders of James Harding and Herman Jackson,1 with the special circumstance of
multiple murders.2 He was also convicted of first degree burglary with use of a
knife3 and assault causing great bodily injury on George McPherson.4 The jury
returned a verdict of death, which the court imposed,5 along with seven years in




1      Penal Code sections 187, subdivision (a), and 189. All further statutory
references are to the Penal Code, unless otherwise noted.

2       Section 190.2, subdivision (a)(3).

3       Sections 459 and 12022.5, subdivision (a).

4       Section 245, subdivision (a)(1).

5       Section 190.4, subdivision (e).



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prison for the first degree burglary and enhancement. The assault sentence was
stayed.6
       In this automatic appeal, defendant contends the trial court erroneously
terminated his right to self-representation in violation of the Sixth and Fourteenth
Amendments to the federal Constitution. (See Faretta v. California (1975) 422
U.S. 806, 807, 835 (Faretta).) We agree. The court‟s rationale, that defendant
had been “dilatory” and had been “stalling,” is not supported by the record.
Faretta and its progeny require reversal of the judgment in its entirety.
                               I. BACKGROUND
       On December 28, 1994, Harding and Jackson were found bound to each
other and strangled to death with electrical cords in Harding‟s room at the Pacific
Grand Hotel, a residential hotel in downtown Los Angeles where drugs were
routinely bought and sold. Defendant, an admitted drug dealer and gang member,
had repeatedly threatened to kill Harding in a dispute over a bag of missing
cocaine. A few days before the murders, defendant forced his way into
McPherson‟s room and held a knife to McPherson‟s neck while demanding to
know where his “stuff” was. Because resolution of defendant‟s appeal turns
exclusively on his Faretta claim, we focus solely on facts germane to that
contention.
       In April 1995, before his preliminary hearing, defendant moved
unsuccessfully to replace his public defender, Gregory Fisher. In May, still
awaiting his preliminary hearing, defendant asked to represent himself, adding that
he was acting as his own counsel in another, unrelated criminal case. The court
granted his Faretta request. It directed the public defender to turn over his

6      Section 654.




                                          2
records, approved funds for an investigator7 and supplies, and set a June date for
defendant‟s discovery motion. Fisher informed the court he had already given
defendant copies of all reports except the victims‟ rap sheets and would turn over
any additional discovery.
       At the June discovery hearing, defendant requested a postponement,
claiming he had not yet received a complete copy of the prosecution‟s murder
book8 from his investigator. The court concluded defendant could proceed with
an additional 73 discovery requests. On the record but outside the court‟s
presence, the prosecutor and defendant discussed each request. In most instances,
the prosecutor explained the items were either contained in the murder book, had
been given to defendant‟s previous counsel, or did not exist. As to many requests,
the prosecutor told defendant just where the information could be found in the
murder book. With consent of the parties, the court continued the matter to July to
set a preliminary hearing.
       In July, the prosecutor declared he was “available any day” for the
preliminary hearing. Defendant, however, requested additional discovery,
claiming an inventory of the material he had been given revealed “a lot” of items
were missing, as detailed in his compliance motion. The prosecutor responded he
had turned over “a complete and true copy of the murder book” to defendant‟s
previous counsel. He did not otherwise speak to the contention that “a lot” of
defendant‟s requested discovery items had not been turned over. The court

7      Defendant specifically requested that John Jensen be appointed as his case
investigator; the court acceded to this request.

8      A “ „murder book‟ ” typically “is a notebook or file compiled by law
enforcement and the prosecution that contains investigative reports, witness
statements, photographs, audio and videotape recordings, and other material
related to the case.” (People v. Carson (2005) 35 Cal.4th 1, 12, fn. 3 (Carson).)



                                         3
directed defendant‟s investigator to ascertain “all the matters” that defendant was
seeking, meet with the prosecutor to secure them, and then deliver them to
defendant. If problems arose, they were to notify the clerk so the court could
intervene. The court also directed the parties to cooperate so the preliminary
hearing could be set in August.
       At the August hearing, the prosecutor reported that he and defendant‟s
investigator had gone through the murder book “page by page by page, literally
through the entire murder book. [¶] There were some documents Mr. Jensen did
not have that I copied and gave to him. He gave me the further request for
discovery; one being request for receipt by fax [of] rap sheets for approximately
25 witnesses.” (Italics added.) The process of checking those records had not
been completed. “Other than that, I believe that all the discovery Mr. Jensen asked
of me has been provided” except for the audio tapes, which were in the process of
being reproduced. The prosecutor said he would notify Jensen in three or four
days when the tapes were ready. After addressing several subpoena issues with
the court, defendant identified additional discovery items he claimed were still
missing. The prosecutor did not object to the requests, nor did the court rule that
defendant was not entitled to the items mentioned. Instead, the court set an
additional hearing date, explaining, “I want to make sure that you have all those
things before we go ahead with the prelim. [¶] Approximately 30 days from
today‟s date? Will that be enough time, or do you need more time?” (Italics
added.) Defendant responded, “Yeah, that is fine,” and the parties agreed to meet
on September 28 to set the preliminary hearing.
       At the September hearing, however, the court opened the proceedings by
terminating defendant‟s self-representation during the following exchange,
without any record of prior warning or discussion:



                                          4
       “The Court: I gave you pro per privileges a little over four months ago and
you continued this case on at least six occasions. The Court finds that everything
you‟ve done is dilatory; that this case is never going to get off the ground; that the
prelim will never occur; and that all you‟re doing is stalling. Eventually it‟s going
to have to happen. [¶] I don‟t want to hear from you anymore.
       “[Defendant]: Your Honor?
       “The Court: I‟m telling you to be quiet. I‟m releaving [sic] you. I‟m
reappointing the public defender‟s office and you can talk to —
       “[Defendant]: Well, your Honor — I would like to say one thing for the
record.
       “The Court: Say it.
       “[Defendant]: Okay. First of all, your Honor, this is a capit[a]l case one. I
been appointed since May 19 of 1995. I don‟t have, since May till now, enough
time to have enough season [sic] of the law to present my preliminary hearing in
front of this Court. [¶] As you can see from the advisory counsel motion that I
submitted to this Court on my last court appearance, it states a lot of the material
that‟s missing from the law library. There‟s no Evidence Code books, Jeffersons,
talks about the law. [¶] This is a capit[a]l case and you‟re dealing with my life.
I‟ve dealt with Mr. Fisher prior to this. Me and Mr. Fisher do not get along, and
this is one of the reasons I took charge of my case is so I can do my investigation
because ever since Mr. Fisher was appointed — since December, he hasn‟t done
nothing. And since I been working from the — with the Jensens, I done a lot of
investigations and ready to do my prelim, but I need time to understand the law.
As to the admissibility of hearsay evidence, the admissibility of — of evidence
that‟s going to be introduced by the district attorney. This is a capit[a]l case, your
Honor. This is not a petty theft with a prior. This is a double murder case. [¶]



                                          5
. . . [¶] . . . [¶] . . . [¶] I have the constitutional right to represent myself . . .
I‟m entitled to an advisory counsel, your Honor.
       “The Court: You made your record. I made my ruling.
       “[Defendant]: I haven‟t done nothing to take this privilege away from me.
You‟re taking my constitutional rights from me and that is a reversible error
in [sic] your part. And I‟m going to take this on a writ. And if this is all you have
to say, this is all I have to say. I‟ll take this . . . up on a writ. You‟re not going to
take my constitutional rights when I have the rights to represent myself. This is
my life, your Honor. You‟re dealing with my life.
       “The Court: That will be all. [¶] . . . [¶]
       “[Defendant]: I hope Mr. Fisher doesn‟t come to the jail and visit me.
That, hopefully, is for the record. I do not get along with him.”
       Defendant ended by telling the court: “You want to fuck with me, I‟ll fuck
with you.” After a short pause in the record, the prosecutor described how an
enraged defendant had thrown four or five sharpened pencils at Fisher before
being removed from the courtroom. The prosecutor indicated an intention to file
an assault charge based on that behavior. In defendant‟s absence, the court set the
next hearing for November, stating, “[b]ecause of . . . what the defendant
displayed about five minutes ago . . . I simply do not feel that this court would be a
safe place and have him out here at the same time.”
       Fisher was reinstated as defendant‟s counsel. At a hearing two weeks later,
defendant requested to resume self-representation and asserted there was still
outstanding discovery that he needed. Even so, he argued that, rather than
terminating his Faretta status, the court should have denied his request for a
continuance and proceeded with the preliminary hearing. The court affirmed its
ruling, stating, “When I granted you pro per status, I did it with the understanding
that you act as any other attorney would act, and that this Court would give you no

                                            6
special indulgences, and that you would follow the rules and substantive law. [¶]
The case was put over an incredible amount of times. The Court felt that you were
dilatory.” A few days later, defendant renewed the request for self-representation,
stating he would be ready to proceed with the preliminary hearing in 30 days. The
renewed request was denied.
                                  II. DISCUSSION
         The United States Supreme Court has held the Sixth Amendment to the
federal Constitution gives a defendant the right to self-representation. (Faretta,
supra, 422 U.S. at pp. 807, 819.) That right is not without limits, however.
(Indiana v. Edwards (2008) 554 U.S. 164, 171.) “ „[The] government‟s interest in
ensuring the integrity and efficiency of the trial at times outweighs the defendant‟s
interest in acting as his own lawyer.‟ ” (People v. Williams (2013) 58 Cal.4th 197,
253; see also Faretta, at pp. 834-835, fn. 46.) In Carson, we held that a trial court
may terminate the pro per status of a defendant who engages in “ „deliberate
dilatory or obstructive behavior‟ ” that “threatens to subvert „the core concept of a
trial‟ [citation] or to compromise the court‟s ability to conduct a fair trial,”
(Carson, supra, 35 Cal.4th at p. 10), but added that “[t]ermination of the right of
self-representation is a severe sanction and must not be imposed lightly” (id. at
p. 7).
         “When determining whether termination is necessary and appropriate, the
trial court should consider several factors in addition to the nature of the
misconduct and its impact on the trial proceedings,” including: (1) “the
availability and suitability of alternative sanctions,” (2) “whether the defendant
has been warned that particular misconduct will result in termination of in propria
persona status,” and (3) “whether the defendant has „intentionally sought to disrupt
and delay his trial.‟ ” (Carson, supra, 35 Cal.4th at p. 10.) A record of the basis
for terminating a defendant‟s Faretta rights should include “the precise

                                           7
misconduct on which the trial court based the decision to terminate. [Citation.]
The court should also explain how the misconduct threatened to impair the core
integrity of the trial. Did the court also rely on antecedent misconduct and, if so,
what and why? Did any of the misconduct occur while the defendant was
represented by counsel? If so, what is the relation to the defendant‟s self-
representation? Additionally, was the defendant warned such misconduct might
forfeit his Faretta rights? Were other sanctions available? If so, why were they
inadequate?” (Id. at pp. 11-12, fn. omitted.)
       On review, we accord “due deference to the trial court‟s assessment of the
defendant‟s motives and sincerity as well as the nature and context of his
misconduct and its impact on the integrity of the trial in determining whether
termination of Faretta rights is necessary to maintain the fairness of the
proceedings.” (Carson, supra, 35 Cal.4th at p. 12.) The court exercises
considerable discretion in this regard and “the exercise of that discretion „will not
be disturbed in the absence of a strong showing of clear abuse.‟ ” (People v.
Welch (1999) 20 Cal.4th 701, 735.)
       In Carson we emphasized the necessity of providing an adequate record to
justify terminating a defendant‟s self-representation status. (Carson, supra, 35
Cal.4th at pp. 11-12.) We do so again here. Ruling on a Faretta motion and
deciding whether to terminate a defendant‟s pro per status present a trial court
with particular complexities. A defendant‟s request to proceed pro per must be
unequivocal, voluntary, and intelligent. Often, defendants make a self-
representation motion in the heat of the moment, after a different motion has been
denied. No matter how extensive the court‟s explanation of a defendant‟s options
and responsibilities, a defendant may not have a clear picture of how challenging
self-representation can be. Once a defendant has had a reasonable opportunity to
prepare, a mere desire for more time, a need to study the law in detail, or alleged

                                          8
inadequacies in the jail library will seldom be sufficient to entitle him to a
continuance.9 Incomplete discovery, however, is a different matter.
       While we review a Faretta revocation order for abuse of discretion, it is
incumbent upon the court to create a record that permits meaningful review of the
basis for its rulings. As we explained in Carson, when terminating self-
representation, the trial court must “preserve a chronology of relevant events for
possible appellate review” and “document its decision . . . with some evidence
reasonably supporting a finding that the defendant‟s obstructive behavior seriously
threatens the core integrity of the trial.” (Carson, supra, 35 Cal.4th at p. 11.)
       Here, although the court said defendant had been dilatory, the record does
not contain factual support for this finding. There is no evidence before us to
demonstrate defendant‟s discovery requests were made in bad faith or intended to
cause delay. The court did not otherwise make clear how defendant‟s behavior
threatened to compromise its ability to conduct a fair trial. The prosecution did
not complain about the pace of the proceedings, nor does the record reflect any
warning to defendant about his conduct or the court‟s consideration of alternate
sanctions. It appears some of defendant‟s discovery requests were extensive, but
the prosecutor never objected that any of the items defendant requested were not
properly discoverable. Indeed, the prosecutor repeatedly acknowledged that items
remained outstanding and that discovery had yet to be fully completed by the
August hearing.
       The most challenging aspects of the case on review, however, are the
abruptness of the trial court‟s action, its initial ruling without giving defendant an


9      Even if a continuance is unwarranted, however, the question of whether to
revoke a defendant‟s Faretta status must be separately evaluated, applying the
standards set out here.



                                           9
opportunity to be heard, and the failure to explain how it concluded defendant had
been dilatory. Terminating a defendant‟s self-representation status should be
considered a last resort, not a first impulse. If the court thought enough time had
been spent sorting out discovery, that the outstanding items were unnecessary for
the preliminary hearing, that defendant was stalling for tactical advantage, or that
defendant needed to work with his investigator and be ready for the hearing by a
date certain, the court should have said so on the record before taking dispositive
action. Instead, the court took a hands-off approach to discovery. It did not make
any ruling on the propriety of defendant‟s discovery requests. It granted several
continuances, asking defendant if he needed more time and continuing the matter
for setting dates “to make sure [he] had all those things before we go ahead with
the prelim.” It then abruptly terminated defendant‟s pro per status without ever
expressing a concern that defendant was “stalling” or warning of potential adverse
consequences. The stated reason for this action, defendant‟s dilatoriness, is not
manifest in the record.
       It is possible something occurred before the final hearing that tried the
court‟s patience. But if so, an adequate record is required to facilitate meaningful
review. This is no mere technicality but an important mechanism to protect
defendant‟s constitutional guarantee. To be sure, defendant‟s subsequent threats
to the court and his assault on counsel were most inappropriate. The court,
however, had already made up its mind and issued its termination ruling. This
subsequent misconduct, no matter how serious, cannot shore up an unsupported
ruling that had already taken place. (See, e.g., Moon v. Superior Court (2005) 134
Cal.App.4th 1521, 1530-1531 [rejecting argument that the defendant‟s disruptive
behavior, prompted by anger when he was not allowed to represent himself, could
be used to justify denying his request for self-representation in the first place].)



                                          10
Even after its ruling the court did not refer to defendant‟s outburst as indicative of
other behavior that the court had failed to mention earlier.
       “Erroneous denial of a Faretta motion is reversible per se. [Citations.] The
same standard applies to erroneous revocation of pro. per. status.” (People v.
Butler (2009) 47 Cal.4th 814, 824-825.) As in Butler, “[w]e decide this case under
compulsion of United States Supreme Court precedent” and “prevailing
constitutional standards.” (Id. at p. 829.) The record before us is bereft of
information to support the trial court‟s revocation of defendant‟s pro per status. In
such a circumstance, controlling precedent compels this result.
                               III.   DISPOSITION
       The judgment is reversed.
                                                                 CORRIGAN, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Becerra
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S065573
Date Filed: June 27, 2016
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: J. D. Smith

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Alison Bernstein,
Deputy State Public Defender, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and Susan S.
Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Alison Bernstein
Deputy State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607
(510) 267-3300

Susan S. Kim
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 620-6449
