                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 25 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50077

               Plaintiff - Appellee,             D.C. No. 3:11-cr-05772-AJB-1

  v.
                                                 MEMORANDUM*
SERVANDO ORTUNO-GARCIA,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                    Anthony J. Battaglia, District Judge, Presiding

                       Argued and Submitted February 6, 2014
                                Pasadena, California

Before: SCHROEDER and CLIFTON, Circuit Judges, and COGAN, District
Judge.**

       Defendant Servando Ortuno-Garcia appeals his jury conviction of being a

deported alien found in the United States, in violation of 8 U.S.C. § 1326. We

affirm.

           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The Honorable Brian M. Cogan, United States District Judge for the
Eastern District of New York, sitting by designation.
      Ortuno-Garcia argues that his Faretta waiver was not knowing and

intelligent and that it was not unequivocal. See Faretta v. California, 422 U.S.

806, 818-21 (1975) (defendant may waive right to counsel); United States v.

Erskine, 355 F.3d 1161, 1167 (9th Cir. 2004) (waiver must be knowing and

intelligent); United States v. Farhad, 190 F.3d 1097, 1100 (9th Cir. 1999) (waiver

must be unequivocal). We disagree.

      Perfect comprehension of each element of a criminal charge is not necessary

to a finding of a knowing and intelligent waiver. United States v. Robinson, 913

F.2d 712, 715 (9th Cir. 1990). While Ortuno-Garcia may not have had perfect

comprehension of the charges he faced, he knew enough to make a knowing and

intelligent waiver of his right to counsel. On the whole, the record shows that his

statements “reflect more a disagreement with the charges as they related to him,

than a misunderstanding of the charges themselves.” Id. We conclude, therefore,

that the waiver was knowing and intelligent.

      We consider a waiver unequivocal where the defendant repeatedly expresses

to the court his desire to waive his right to counsel; in other words, where it is not

“mere whim or caprice.” United States v. Van Krieken, 39 F.3d 227, 230 (9th Cir.

1994). Ortuno-Garcia’s repeated eschewing of assistance of counsel demonstrates

that the waiver he gave during his Faretta hearing was unequivocal.


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      Ortuno-Garcia further argues that even if waiver was knowing and

intelligent, it was nullified by his subsequent performance at trial. Technical legal

knowledge is not relevant to the determination of whether a defendant is competent

to waive his right to counsel. Faretta, 422 U.S. at 835. Indeed, Supreme Court

precedent explicitly forbids any attempt to measure a defendant’s competency to

waive the right to counsel by evaluating his ability to represent himself. Godinez v.

Moran, 509 U.S. 389, 399-400 (1993).

      We agree that the district court should not have met separately with the

prosecutor at sidebar after Ortuno-Garcia declined to have standby counsel

participate on his behalf. Even if that was error, however, it was not a “structural

error” requiring automatic reversal. See Washington v. Recuenco, 548 U.S. 212,

218 n.2 (2006) (listing the “rare cases” that constitute structural error). The

exclusion of a criminal defendant from even a “critical stage” of his criminal trial

is an error subject to harmless error review. Campbell v. Rice, 408 F.3d 1166,

1172 (9th Cir. 2005) (en banc). Ortuno-Garcia has not argued that he was actually

prejudiced by his absence, and our review of the discussion at sidebar confirms that

he was not.

      Lastly, Ortuno-Garcia argues for the first time on appeal that the evidence of

his prior convictions should not have been admitted under Fed. R. Evid.


                                           3
609(a)(1)(B). Admitting a sanitized version of Ortuno-Garcia’s prior convictions

for impeachment purposes only is unlikely to have affected the outcome of the

proceedings. If indeed there was error, it was not plain error because it did not

impact Ortuno-Garcia’s substantial rights. See Fed. R. Crim. P. 52(b) (review is

for plain error); United States v. Olano, 507 U.S. 725, 731-32 (1993) (to establish

plain error, a defendant must show it affected his substantial rights); United States

v. Fuchs, 218 F.3d 957, 962 (9th Cir. 2000) (error prejudices substantial rights of a

defendant when it affects the outcome of the proceedings).

      AFFIRMED.




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