Filed 4/10/14 P. v. Roddy CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064381

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. Nos. SCD246845,
                                                                     SCD246497)
RICHARD PAUL RODDY,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Robert F.

O'Neill, Judge. Affirmed as modified.

         John L. Staley, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Karl T. Terp,

Deputy Attorneys General, for Plaintiff and Respondent.

         This appeal is from a judgment entered in two cases. In case SCD246497, Richard

Paul Roddy entered a guilty plea to one count of possession of a controlled substance
(Health & Saf. Code, § 1350, subd. (a)) and was granted probation on March 11, 2013.

On March 15, 2013, a new felony complaint was filed in case SCD246845 arising from

an alleged sale of a controlled substance on March 12, 2013.

       At his arraignment on the new complaint Roddy requested to represent himself

and signed a waiver of constitutional rights consistent with Faretta v. California (1975)

422 U.S. 806 (Faretta)). The validity of that waiver is not challenged on this appeal.

Roddy represented himself at the preliminary hearing and again at the trial on the

information. Following the jury trial, Roddy was convicted of sale of cocaine (Health &

Saf. Code, § 11352, subd. (a)). Thereafter Roddy admitted the allegation that he had a

prior conviction within the meaning of Health and Safety Code section 11370.2, and five

prison priors within the meaning of Penal Code1 section 667.5, subdivision (b).

       The court revoked probation in case SCD246497. Roddy was sentenced to a

combined term of 12 years eight months in prison.

       Roddy appeals contending the trial court erred in not fully advising him of his

Faretta right again at the time of his arraignment on the information. He further argues

that the original waiver he signed did not accurately state the maximum penalty he faced,

i.e., the form indicated the maximum for the offense was eight years, however, with the

five prison priors the actual maximum was 13 years. Roddy contends his conviction




1      All further statutory references are to the Penal Code unless otherwise specified.

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must be set aside as the alleged error is per se reversible. We will reject Roddy's

contentions and affirm.2

                                 STATEMENT OF FACTS

         Roddy does not challenge either the admissibility or the sufficiency of the

evidence supporting his conviction. Accordingly, we will only briefly summarize the

facts.

         On March 12, 2013, San Diego Police Officer Marlow Woods was working

undercover in the East Village area of the city of San Diego. Woods approached Roddy

and asked if he could help him purchase $20 worth of rock cocaine. Roddy used the

officer's phone to contact another person, who Roddy said was willing to sell $40 worth

of rock cocaine.

         Shortly after the call codefendant Laronda Dunlap appeared. The officer gave

Roddy two prerecorded $20 bills. He then observed Roddy give the money to Dunlap,

who then gave Roddy an item. Roddy then returned and gave the officer a small bindle,

which was determined to contain a useable amount of rock cocaine.

                                        DISCUSSION

         When Roddy was arraigned on the felony complaint in case SCD246845, he

requested to represent himself. Roddy completed a waiver form and also orally waived

his right to the assistance of counsel. In the form Roddy advised he had represented



2     Roddy contends, and the People concede, that he is entitled to an additional day of
custody credit. We will order the sentence modified to reflect one additional day of
custody credit.
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himself in three prior cases in 1993, 1998 and 1999. He unequivocally expressed the

desire for self-representation, a position from which he never retreated throughout the

proceedings, which followed for the rest of the case. The complaint included the alleged

five prison priors, which were later included in the information filed following the

preliminary hearing.

       When Roddy was arraigned on the information the trial court asked Roddy if he

wished to remain in pro per. Roddy answered, "Yes." The court continued:

          "And you remember you were advised at some point of your
          constitutional rights; is that true?

          "Roddy: Yes

          [¶] . . . [¶]

          "Court: Okay, so on behalf of both defendants, not guilty pleas were
          entered, denial of all allegations were as well. We'll show Ms.
          Wilson as continued attorney of record for Ms. Dunlap. We'll show
          Mr. Roddy continued in pro per. I'll note acknowledgement of
          constitutional rights forms are in the file."

       Roddy contends the trial court had a duty under section 987, subdivision (a)3 to

take a full and complete waiver of the right to counsel at the arraignment on the

information, even though such waiver had already been taken on the same charges and

allegations at arraignment on the complaint. We will assume, for the sake of argument,

the trial court's colloquy at arraignment on the information was not in full compliance


3       Section 987, subdivision (a) provides: "In a noncapital case, if the defendant
appears for arraignment without counsel, he or she shall be informed by the court that it
is his or her right to have counsel before being arraigned, and shall be asked if he or she
desires the assistance of counsel. If he or she desires and is unable to employ counsel the
court shall assign counsel to defend him or her."
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with section 987, subdivision (a). As we will discuss, however, such readvisement was

not required under the federal Constitution as interpreted by Faretta. To the extent some

further advisement was required by statute, we are satisfied the error was harmless under

any standard of review.

       Federal authority establishes that once the defendant has made a valid waiver of

the right to counsel, that waiver remains in effect throughout the criminal proceedings

that follow. (Arnold v. U.S. (9th Cir. 1969) 414 F.2d 1056, 1059; U.S. v. Springer (9th

Cir. 1995) 51 F.3d 861, 864-865.) Thus, in the application of Faretta, Roddy's valid

waiver of the right to counsel at the arraignment on the complaint continued throughout

the remaining proceedings. Accordingly, there is no basis in this record for a claimed

violation of Roddy's Sixth Amendment rights.

       In People v. Crayton (2002) 28 Cal.4th 346 (Crayton) the California Supreme

Court analyzed the differences between the federal rule and the statutory requirements of

section 987, subdivision (a). The court noted that the statute was passed at the time there

were two levels of trial courts in California, the municipal court and the superior court.

Consistent with the idea that the case changed courts when there was a bindover after a

preliminary hearing, the statute required the superior court to address the appointment of

counsel and presumably take a new waiver of the right to counsel. In Crayton, the People

conceded that the trial court erred, under the statute, by not taking a second waiver. The

court, observed that since the enactment of the statute, the California trial courts have

been unified and that often the superior court judge, who acts as a magistrate on the



                                              5
felony complaint, may be the trial judge on the information. (Crayton, supra, at pp. 360-

361.)

        After analyzing the requirements of section 987, subdivision (a), the court

determined that any error in the process of readvising a defendant of the right to counsel,

where there was an earlier valid waiver of those rights is subject to the harmless error

analysis of People v. Watson (1956) 46 Cal.2d 818, 836. (Crayton, supra, 28 Cal.4th at

pp. 363-366.) We will turn next to the issue of harmless error.

        Roddy contends that the error at arraignment on the information cannot be deemed

harmless on this record. We disagree. Roddy argues that there was an error in the

original waiver form because the form indicated the maximum term for the offense was

eight years, when actually the total exposure was 13 years, after taking into account the

alleged prison priors. Thus he contends we cannot tell if Roddy really wanted to

represent himself regardless of the consequences. We think this record makes it very

clear that Roddy never wavered from his desire to be his own attorney in this case.

        First, his original waiver was very clear. In addition to touting his skills in three

prior cases, he said he does not trust lawyers.

        Further, at least twice during subsequent hearings the trial court cautioned Roddy

about the precise term he was facing if convicted. Roddy continued to represent himself.

Indeed there is nothing in the record to indicate he ever wished for the advice of an

attorney.




                                               6
       In People v. Harbolt (1988) 206 Cal.App.3d 140, 150, this court expressed the

view that a valid waiver of the right to counsel did not require advisement of the

maximum penal consequences facing the defendant.

       In People v. Conners (2008) 168 Cal.App.4th 443, the Second District Court of

Appeal agreed with the reasoning in People v. Harbolt, supra, 206 Cal.App.3d 140, and

disagreed with a contrary opinion in People v. Noriega (1997) 59 Cal.App.4th 311, 319.

The court in Conners concluded that the overriding principle in analyzing a Faretta

waiver is whether there was a valid waiver viewing the record as a whole. (Conners,

supra, at p. 455.)

       The court in People v. Burgener (2009) 46 Cal.4th 231, 241, stated " '[a]s long as

the record as a whole shows that the defendant understood the dangers of self-

representation, no particular form of warning is required.' [Citations.] [¶] On appeal, we

independently examine the entire record to determine whether the defendant knowingly

and intelligently waived the right to counsel." (See also People v. Koontz (2002) 27

Cal.4th 1041, 1070.)

       Applying the appropriate standard of review, we are satisfied Roddy was

determined to represent himself and that any error in failing to fully readvise him of the

same rights was harmless.

                                      DISPOSITION

       The sentence is modified to reflect one additional day of custody credit for Roddy.

The superior court is directed to prepare an amended abstract of judgment reflecting the



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change and to forward the amended abstract to the Department of Corrections and

Rehabilitation. In all other respects the judgment is affirmed.



                                                                  HUFFMAN, Acting P. J.

WE CONCUR:


                  McDONALD, J.


                   O'ROURKE, J.




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