Filed 10/17/13 P. v. Thomas CA5 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

 v. 

DEONTRAY DESHON THOMAS, 

Defendant and Appellant. 

F063867 

(Super. Ct. No. BF135794A) 

OPINION

 APPEAL from a judgment of the Superior Court of Kern County. John S. Somers, 

Judge. 

 Donn Ginoza, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

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

General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari L. 

Ricci, Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOoo- 
2. 

INTRODUCTION 

 Following a plea to a violation of Penal Code1 section 273.5, subdivision (a) and 

the imposition of a four-year sentence, defendant Deontray Deshon Thomas appeals his 

conviction. He argues the trial court abused its discretion when it granted his motion 

made under Faretta v. California (1975) 422 U.S. 806 (Faretta) because it failed to 

consider whether he lacked the mental capacity to represent himself at trial. Defendant 

also contends that failure resulted in an invalid waiver, thus, denying him his 

constitutional right to counsel. We affirm the judgment. 

BRIEF PROCEDURAL SUMMARY 

 In an information filed April 14, 2011, it was alleged defendant committed the 

following violations: count 1—assault with a deadly weapon (§ 245, subd. (b)); count 

2—willful infliction of corporal injury upon a cohabitant (§ 273.5, subd. (a)); count 3—

criminal threat (§ 422); count 4—unlawful taking of a vehicle (Veh. Code, § 10851, subd. 

(a)); count 5—unlawful possession of a firearm by a felon (former § 12021, subd. (a)(1)); 

and count 6—active participation in a criminal street gang (§ 186.22, subd. (a)). A gang 

enhancement was also alleged (§ 186.22, subd. (b)(1)) as to counts 1, 2, 3, and 5. A 

firearm enhancement was alleged (§ 12022.5, subd. (a)) as to counts 1, 2, 3, and 4. 

Additionally, it was alleged defendant had a prior strike (§§ 667, subds. (c)-(j), 1170.12, 

subds. (a)-(e)) and a prior serious felony conviction for attempted first degree burglary 

(§ 667, subd. (a)). Finally, it was also alleged defendant had served two prior prison 

terms. (§ 667.5, subd. (b).) 

 On April 22, 2011, defendant pled not guilty to all counts and denied all 

allegations. 

 Subsequently, the trial court granted defendant’s motion to set aside the section 

186.22, subdivision (b)(1) enhancement as to counts 1, 2, 3, and 5. 

 1All further statutory references are to the Penal Code unless otherwise indicated. 
3. 

 Thereafter, a series of Marsden (People v. Marsden (1970) 2 Cal.3d 118) motions 

made or filed by defendant were heard and denied. 

 Jury trial commenced August 18, 2011, with motions in limine argued and 

considered over two days. On the second day of trial, defendant made yet another 

Marsden motion; it was denied. Defendant’s subsequent Faretta motion was granted. 

 On August 23, 2011, the trial court granted defendant’s request for a 30-day 

continuance, but denied his request for cocounsel. Later that same morning, defendant 

entered a conditional plea: that he serve no more than four years in prison in exchange 

for pleading no contest to a violation of section 273.5, subdivision (a). 

 After denying defendant’s motions to withdraw his plea, the trial court eventually 

sentenced defendant to four years in state prison. 

BRIEF FACTUAL SUMMARY2

 On February 27, 2011, Toya Tarkington reported she had been assaulted by 

defendant. More particularly, she indicated her boyfriend punched her in the head, face, 

chest and back. At one point, he produced a handgun, pointed it at Tarkington’s head, 

and told her he was going to kill her. The assault continued briefly before defendant took 

Tarkington’s keys and left in her car. Although Tarkington declined medical assistance, 

law enforcement personnel noted bruising to her face and shoulder. 

DISCUSSION 

The Faretta Motion 

 Defendant contends the trial court erred in granting his Faretta motion because it 

employed an incorrect standard in assessing his ability to conduct himself during trial. 

He argues the trial court’s reference to People v. Nauton (1994) 29 Cal.App.4th 976 

during the hearing meant it was unaware of the rules of Indiana v. Edwards (2008) 554 

U.S. 164 and People v. Johnson (2012) 53 Cal.4th 519 applicable to Faretta motions. 

 2The factual summary is taken from the probation officer’s report. 
4. 

The People assert the trial court exercised its sound discretion in allowing defendant to 

represent himself and, thus, no error occurred. 

The Relevant Proceedings Below 

 On the morning of August 22, 2011, the trial court noted defendant’s appearance 

and, particularly, the fact he was not dressed out for trial. When defense counsel was 

asked about the issue, he indicated defendant refused to speak with him, but that the 

bailiff had advised him defendant was refusing to dress out for trial. The following 

colloquy then occurred: 

 “[THE COURT:] [S]ir, I know you did have clothes available at 

Lerdo. Was there a mix-up or a problem in terms of getting dressed out this 

morning or what is the reason that you’re not dressed out this morning, sir? 

 “THE DEFENDANT: Because I felt like, you know, I no longer can 

proceed with [defense counsel] on a caseload with me, and I’m not going to 

sit here and act like me and [defense counsel] get along and we really don’t. 

 “It’s always been a break in communication and lack of 

communication and trust, and I’m not—I’m not going to proceed with 

[defense counsel] on my caseload. If I got to go pro per, I go pro per. Just 

ain’t no trust there. 

 “THE COURT: For the record, without getting into the details of it, 

because it is a closed hearing and is sealed and [the prosecutor] is present 

with us at the present time, there was a Marsden motion brought and heard 

on Friday, I believe it was, first thing in the afternoon shortly after lunch, if 

I’m not mistaken. And, obviously, I will not go into the details of that at 

this point in time. 

 “As I understand it, what you’re telling me is that, because you’re 

not happy with your current representation, that’s why you have chosen not 

to dress out. Is that correct, sir? 

 “THE DEFENDANT: Yes, your Honor. 

 “THE COURT: I’m not sure I understand the connection between the 

two. Can you maybe explain that to me, because I’m not quite following 

why one would have anything to do with the other. 

 “THE DEFENDANT: I mean [defense counsel]—he disrespectful to 

my mom. 
5. 

 “THE COURT: I know how you feel about [defense counsel], and I 

don’t want you to be in a position of having to get into that too much in 

front of the Deputy DA. [¶] Why is not dressing out connected to [defense 

counsel]’s representation, whatever you may feel? 

 “THE DEFENDANT: I don’t trust [defense counsel] whatsoever. I 

feel like I can’t proceed on this case. 

 “THE COURT: There is one comment that, for purposes of the 

record, I need to follow-up on at this point in time. 

 “[Y]ou said something about you’re not going to proceed with 

[defense counsel] as your attorney at this point and made a comment about 

going pro per. [¶] Are you—not inviting anything you’re not asking me to 

you do, [sic] because— 

 “THE DEFENDANT: Whatever. 

 “THE COURT: Wait a minute. One has a constitutional right to do 

so. It is generally—it is, frankly, almost always unwise for someone to 

represent themselves, but are you asking the Court to discharge your 

attorney and proceed representing yourself— 

 “THE DEFENDANT: That’s what— 

 “THE COURT: —at this point? 

 “THE DEFENDANT: If that’s what I got to do to get him off my case, 

that’s what I want to do. 

 “THE COURT: I only want you to do that if that’s what you want to 

do as far as your case and if that’s what you think is in your best interest. 

 “THE DEFENDANT: Be in my best interest. Maybe I feel I can win a 

case or maybe I feel I got a better chance. I feel like he working with the 

DA anyways. 

 “THE COURT: Before proceeding with that request, ... you 

understand that this matter is in trial now? [¶] We have a jury panel which 

is reserved and which we’re going to bring over to begin jury selection on 

the case later on this morning. So if you do discharge your counsel or seek 

to do that and represent yourself on the matter, then you would be expected, 

and need to be prepared, to proceed on the matter immediately, because it’s 

prejudicial to the People to go forward or to basically have this stalled at 

the last moment when they have done everything they can in good faith to 

become prepared to proceed. 
6. 

 “You have counsel who is prepared to proceed. And we’ve already 

spent basically—though we have not yet selected a jury, we’ve spent the 

better part of two whole days already conducting motions in limine on this 

case. Do you understand that? [¶] I need you to answer out loud. 

 “THE DEFENDANT: Yes, your Honor. 

 “THE COURT: I want to make sure just that the answer is clear for 

the record. I can see you nodding the head one way or the other, but it’s 

hard for the court reporter to take down. 

 “Mr. [Prosecutor], I haven’t asked the People to provide any input 

on anything because, up to this point. Obviously dealing with the issue of 

representation, to the extent that it presents a conflict or Marsden-type 

issue, that is between counsel and the defendant, and no disrespect but it 

isn’t the People’s business. 

 “And, in addition, with regards to [defendant] being dressed out or 

not being dressed out, that’s entirely a matter of his choice. Though I think 

it wise for him to be dressed in civilian clothing, he’s not obligated to do 

that if he doesn’t wish to do so. 

 “However, with regards to the issue of self-representation, it does 

appear to me there is a request being made for that at this point in time. 

 “Your comments, if any, with respect to that at this point? 

 “[PROSECUTOR]: I would object to timeliness. 

 “THE COURT: All right. 

 “[PROSECUTOR]: And I would object to any continuance. 

 “THE COURT: So you understand ... that the People are going to 

be—if you proceed with that request, the People are going to be objecting 

to the motion, number one, on the grounds that it’s untimely, that is being 

made too late in the proceedings, and in connection with that they’re going 

to be objecting to any continuance of the trial because they are ready, 

prepared to proceed and have their witnesses available and so forth. Do 

you understand that? 

 “THE DEFENDANT: Yes, your Honor. 

 “THE COURT: Okay. At this point we’re going to go off the record 

for just a couple of minutes. I am going to—while we’re off the record 

we’re going to do two things. 
7. 

 “Number one, we have a written advisal and waiver form regarding 

self-representation or so-called Faretta motion. We are going to get a copy 

of that for you ... and give you an opportunity to read over that, review 

that. [¶] And then when we go back on the record we’ll proceed with your 

motion. You can state the reasons for it. 

 “I also want to take the time to go over that form and make sure 

you’re fully advised with regards to any potential pitfalls or dangers to your 

case, of which there are some being involved in representing yourself. I 

want to make sure before you proceed with the motion and I hear it that 

you’re fully advised. Okay? 

 “So we’ll do that during the recess and give you an opportunity to 

review that.” 

When the proceedings resumed following recess, the court reviewed the “Faretta Waiver” 

form with defendant. It made specific inquiries based upon defendant’s selections or 

responses on the form: 

 “THE COURT: Okay. Turning to the second page, the advisal in 

number seven[3] at the top of the page states, quote: Do you understand 

that if you are in custody you will receive no more library privileges than 

those available to other persons representing themselves? 

 “You will receive no extra time for preparation, and you will have 

not have a staff of investigators at your disposal. [¶] ... [¶] 

 “You circled the answer no to that and placed the initials DT. 

 “What I want to make sure is that you understand what’s stated in in 

[sic] that. If you are in custody, you will receive the same library privileges 

as all other individuals who are representing themselves and will not 

receive any additional or extra time for preparation nor will you have a staff 

of investigators at your disposal. 

 “Do you understand those things? 

 “THE DEFENDANT: Yes, your Honor. 

 “THE COURT: Okay. Why did you circle no in response? 

 3Later in the proceedings, the trial court again clarified number seven on the waiver form. 

Defendant acknowledged number seven was the only portion of the form he had any difficulty 

with. 
8. 

 “THE DEFENDANT: Because I’m up in D pod, and like before 

officers, you know, I be really like having a rough time and I ask for the 

law forms and requests to go to the law library, they be slow dragging. So 

like, you know, I—basically—the officers—the officers time—and it’s like 

when we ask for law forms, we can request to the law library. I guess they 

be forgetting sometimes. 

 “Basically they be like slowing us down to get the forms. We 

request those at the law library. 

 “So if I be behind on going to the law library to study and read and 

stuff is basically because I be on they time. 

 “THE COURT: If you have any problems with the speed of the 

access, bring that to the Court’s—initially bring it to the attention of the 

officers in that pod and let them know that you’re representing yourself in 

an effort to speed that up. If that does not suffice, bring that to the Court’s 

attention, and I’ll address the matter. Okay? 

 “THE DEFENDANT: All right. 

 “THE COURT: However, you do need to understand that while the 

Court will see that you get the same access as far as library privileges, time 

for preparation and so forth as all other individuals representing 

themselves, you’re not going to receive anything extra above and beyond 

what anybody else in that same situation gets. 

 “Do you understand that? 

 “THE DEFENDANT: Yes, sir. I understand, your Honor. 

 “THE COURT: Next, I wanted to ask you with respect to question 

eight, because that is not filled in. That question eight would normally list 

the various charges in this particular case.” 

The court then reviewed with defendant each count alleged,4 including enhancements. 

Defendant indicated he understood. The court then addressed the issue central to this 

appeal: 

 “THE COURT: Now, ... in the form you indicate in answer to 

question number ten that your formal education includes high school 

education. Is that correct, sir? 

 4The judge completed this portion of the form. 
9. 

 “THE DEFENDANT: Yes, your Honor. 

 “THE COURT: Okay. Did you—where did you attend high school, 

sir? 

 “THE DEFENDANT: At West High School. 

 “THE COURT: Did you graduate from West High School? 

 “THE DEFENDANT: No, your Honor. 

 “THE COURT: How far did you go? 

 “THE DEFENDANT: Eleventh grade. 

 “THE COURT: You completed the eleventh grade? 

 “THE DEFENDANT: Yes, your Honor. 

 “THE COURT: So essentially, from a credit standpoint, you’re 

basically one year short of high school graduation; is that correct? 

 “THE DEFENDANT: Yes, your Honor. 

 “THE COURT: You indicated in the form that English is your 

primary language. Is that correct? 

 “THE DEFENDANT: Yes, your Honor. 

 “THE COURT: All right. And, sir, in answer to question number 12 I 

need to ask you a question with respect to that so I understand your answer. 

 “You state in answer to that—it states, quote, the question, have you 

been treated for any emotional or mental illnesses? In answer to that you 

circled and stated and initialed that, and explaining that in detail you state I 

was on SSI for being slow as a kid. Is that correct? 

 “THE DEFENDANT: Yes, your Honor. 

 “THE COURT: Can you explain to me what that means to you in a 

little bit more detail? 

 “THE DEFENDANT: I mean base everything—explain it right there. 

 “THE COURT: Do you know if you were found to be 

developmentally disabled? 
10. 

 “I know they use various terms for things sometimes, and that’s why 

I ask. 

 “THE DEFENDANT: Yeah. 

 “THE COURT: Okay. You said that you received SSI for that. 

 “Did you at any point in time, either while you were growing up or 

since you’ve been an adult, receive any kind of treatment—or not sure the 

treatment is exactly the right word—but assistance for that or any special 

education facilities? 

 “THE DEFENDANT: Yeah. 

 “THE COURT: Or assistance while you were in school? 

 “THE DEFENDANT: I had—I was in special ed. 

 “THE COURT: Can you tell me—that was while you were in school. 

Can you tell me a little more about that? 

 “THE DEFENDANT: I was—I kind of had like reading problems, 

comprehending, catching on. That was basically it. I never had no 

treatment or medication. 

 “THE COURT: So it’s basically kind of a—sounds like, correct me if 

I’m wrong, some sort of a disability or difficulty with reading and 

comprehending written information. Is that correct? 

 “THE DEFENDANT: Yes, your Honor. 

 “THE COURT: Now, in this particular case, obviously, as in most 

cases, a lot of what we’re doing in court proceedings take place as far as 

speaking orally and everything. 

 “Have you had any difficulty understanding what we’ve discussed in 

court during the course of the pretrial motions over the last couple of days 

as it’s been spoken in court? 

 “THE DEFENDANT: A little bit. 

 “THE COURT: Okay. 

 “THE DEFENDANT: Just a little bit. 

 “THE COURT: Does that apply to just what’s been going on 

generally or does that happen when we—because sometimes in court 
11. 

proceedings lawyers and the judge will use legal terminology or kind of 

lawyer shorthand for things. We’ll refer to something as, for example, a 

Marsden motion or a motion to bifurcate, things like that, using legal 

terminology or shorthand, and we use it because we know what it refers to. 

 “Has that been the situation where you’re having difficulty what’s 

being said in court or has it been a little bit broader from that [sic]? 

 “THE DEFENDANT: Yes. 

 “THE COURT: Using the kind of terminology or things like that? 

 “THE DEFENDANT: Yes. 

 “THE COURT: If at any point in time during the proceedings either 

[the prosecutor] or I use legal terminology that you do not understand, stop 

me and let us know, and I will—although the Court, obviously, cannot 

conduct your defense for you or assist you with the conduct of the 

defense—just as I would with a witness, it is important that all parties 

understand what is being said during the proceedings. If we at times slip 

into legal shorthand or terminology that you don’t follow or understand, 

please politely tell me that, and we’ll stop, and I’ll make clear what we’re 

talking about. Fair enough? 

 “THE DEFENDANT: Yes, your Honor. 

 “THE COURT: Other than that have you had any difficulty 

understanding what’s been said in court? 

 “THE DEFENDANT: No, your Honor. 

 “THE COURT: I do want to focus a little bit on the reading issue for a 

moment, because you did indicate that during school, what you 

characterized as being slow, was to some extent a difficulty with 

comprehending written material and reading. Is that correct? 

 “THE DEFENDANT: Yes, your Honor. 

 “THE COURT: You may not know the answer to this, sir, but if you 

do—do you know what your—when you left or finished school what your 

reading level was assessed at? 

 “Were you at grade level for eleventh grade or above that, below 

that? 

 “THE DEFENDANT: Below that. 
12. 

 “THE COURT: Okay. Do you know how much below? [¶] Again, 

you may not know. 

 “THE DEFENDANT: I don’t remember my test. I couldn’t remember 

what it was. 

 “THE COURT: So little bit below eleventh grade level, but you’re not 

sure exactly how much? 

 “I need you to answer out loud. 

 “THE DEFENDANT: Yes, your Honor. 

 “THE COURT: I could see the nod of the head. It’s hard for the court 

reporter. 

 “[S]ir, with respect to this proceeding now, a lot of the—obviously, 

necessarily, because of much of what we do in the law is based on words. 

We, obviously, discuss things in court, but there also a lot of the 

information is contained in written documents such as police reports, 

transcripts of previous proceedings or recorded interviews, written motions 

and things of that nature. [¶] ... [¶] ... With respect to any documents that 

you may have read, have you had any difficulty understanding those? 

 “THE DEFENDANT: No. Have no difficulty. 

 “THE COURT: With regards to the reading issue when you were in 

school, was that a question of you could—comprehension of a question, 

you could understand things so long as you had sufficient time but you 

perhaps read slower than perhaps other people or did you have difficulty 

understanding what was in writing even if you had enough time to read 

through it? 

 “THE DEFENDANT: I had like difficult [sic]. 

 “THE COURT: So you had some difficulty even reading the materials 

even if you had essentially unlimited time to read them? 

 “THE DEFENDANT: Yes, your Honor. 

 “THE COURT: ... I want you to answer this for me based solely on 

whether or not, on the basis of your question of your ability to represent 

yourself, do you—strike that. 
13. 

 “Do you, sir, believe that you are able to read sufficiently well to be 

able to read and understand what is in court documents and any police 

reports and other documents you need to read in this case? 

 “THE DEFENDANT: Yes, your Honor. 

 “THE COURT: Okay. Now, in answering question 13, it asks: Have 

you had any difficulties reading and understanding this form? You wrote 

yes but circled no. In reading the form, have you understood the form? 

 “THE DEFENDANT: Yes, your Honor. 

 “THE COURT: Okay. All of the advisals and the questions in the 

form, do they make sense to you? 

 “THE DEFENDANT: Yeah, they do. 

 “THE COURT: Okay. And do you understand the form itself? 

 “THE DEFENDANT: Yes, your Honor.” 

 In making its ruling, the trial court stated that defendant made a knowing and 

intelligent waiver of his constitutional rights and, specifically, that while defendant 

indicated he has some “difficulty in digesting reading materials, he has been able to read 

and comprehend and understand the form in this particular case .... I will characterize 

the form as, frankly, being written at a level that at least requires a high school education 

to be able to fully comprehend it.” Thereafter, defense counsel was relieved from further 

representation of defendant and was directed to provide defendant with all materials. 

Analysis 

The Law at the Time of Trial 

 In Faretta, supra, 422 U.S. 806, the United States Supreme Court held the Sixth 

Amendment to the United States Constitution gives criminal defendants the right to 

represent themselves. Before Faretta was decided, the law in California had been that a 

criminal defendant had no constitutional or statutory right to self-representation except, in 

noncapital cases, the trial court had discretion to grant a defendant’s request for selfrepresentation. (People v. Sharp (1972) 7 Cal.3d 448, 459, 461, 463-464.) 
14. 

 “In the wake of Faretta’s strong constitutional statement, California courts tended 

to view the federal self-representation right as absolute, assuming a valid waiver of 

counsel.” (People v. Taylor (2009) 47 Cal.4th 850, 872.) Thus, a trial court had to grant 

a defendant’s request for self-representation if the defendant voluntarily and intelligently 

elected to do so, even if the defendant, though competent to stand trial, was not 

competent to serve as his or her own attorney. (Id. at pp. 872-873.) 

 In Godinez v. Moran (1993) 509 U.S. 389, the United States Supreme Court 

appeared to confirm that a separate competence requirement for self-representation did 

not exist under federal law. In Godinez, the defendant sought and was allowed to waive 

assistance of counsel and pleaded guilty to murder charges in state court. (Id. at pp. 391-

393.) During habeas corpus proceedings, the federal appeals court held that even though 

the defendant was competent to stand trial, he was not competent to waive counsel and 

plead guilty. (Id. at pp. 393-394.) The Supreme Court reversed, rejecting the argument 

that federal law required a higher standard of competence for waiving counsel or 

pleading guilty than is required to stand trial. (Id. at p. 402.) California courts, including 

the California Supreme Court, generally interpreted Faretta and Godinez as holding the 

required degree of competency to stand trial and the required degree of competency to 

waive the right to counsel were the same. (People v. Taylor, supra, 47 Cal.4th at pp. 

874-876.) 

 In 2008, the United States Supreme Court decided Indiana v. Edwards, supra, 554 

U.S. 164. In that case, the Indiana state trial court had denied the defendant’s request for 

self-representation and found that, while the defendant was competent to stand trial, he 

was not competent to represent himself at trial. (Id. at p. 169.) An Indiana appellate 

court ordered a new trial, and the Indiana Supreme Court affirmed the appellate court on 

the ground Faretta and Godinez required the trial court to permit the defendant to 

represent himself. (Indiana v. Edwards, supra, at p. 169.) The United States Supreme 

Court reversed, holding: 
15. 

“[T]he Constitution permits judges to take realistic account of the particular 

defendant’s mental capacities by asking whether a defendant who seeks to 

conduct his own defense at trial is mentally competent to do so. That is to 

say, the Constitution permits States to insist upon representation by counsel 

for those competent enough to stand trial under Dusky [v. United States

(1960) 362 U.S. 402] but who still suffer from severe mental illness to the 

point where they are not competent to conduct trial proceedings by 

themselves.” (Indiana v. Edwards, supra, 554 U.S. at pp. 177-178.) 

The court called those defendants who are competent to stand trial but not to represent 

themselves “gray-area defendants.” (Id. at pp. 172-173.) 

Indiana v. Edwards did not hold that due process requires a higher standard of 

mental competence for self-representation than is required to stand trial with counsel. 

Rather, “[t]he Edwards court held only that states may, without running afoul of Faretta, 

impose a higher standard ....” (People v. Taylor, supra, 47 Cal.4th at pp. 877-878.) In 

Taylor, the California Supreme Court upheld the trial court’s decision to grant the 

defendant’s request for self-representation. (Id. at pp. 856, 868, 878-879.) Because 

Edwards did not mandate the application of “‘a dual standard of competency for mentally 

ill defendants,’” that case “does not support a claim of federal constitutional error in a 

case like the present one, in which defendant’s request to represent himself was granted.” 

(People v. Taylor, supra, at p. 878.) 

 The Taylor court also rejected the defendant’s argument the trial court should have 

exercised its discretion, recognized in Edwards, to apply a higher standard than 

competence to stand trial. (People v. Taylor, supra, 47 Cal.4th at p. 879.) “We reject the 

claim of error because, at the time of defendant’s trial, state law provided the trial court 

with no test of mental competence to apply other than the Dusky standard of competence 

to stand trial [citation], under which defendant had already been found competent.” 

(Ibid.) 

 Such was the state of the law in this case when defendant requested selfrepresentation. Here, as in Taylor, the trial court’s decision to grant the request for selfrepresentation did not support a claim of federal constitutional error. At the time of 
16. 

defendant’s trial, California state law did not provide a standard of competence for selfrepresentation different from the standard required to stand trial. As defendant does not 

deny he was competent to stand trial, he likewise met the competency standard to 

represent himself at trial. 

The Law Posttrial 

 In 2012, after defendant pled guilty and shortly after he filed his notice of appeal, 

the California Supreme Court decided People v. Johnson, supra, 53 Cal.4th 519. In that 

case, the trial court revoked the defendant’s self-representation. (Id. at p. 525.) The 

Supreme Court had to decide “whether California courts may accept Edwards’s invitation 

and deny self-representation to gray-area defendants.” (Id. at p. 527.) That court 

concluded that California trial courts have discretion to deny self-representation to grayarea defendants. The court reasoned: 

“Indeed, to refuse to recognize such discretion would be inconsistent with 

California’s own law. In People v. Floyd [(1970)] 1 Cal.3d 694, we upheld 

the denial of a capital defendant’s request for self-representation citing, 

among other factors, his youth, his low level of education, and his 

ignorance of the law. [Citation.] Certainly, a defendant who could be 

denied self-representation under Edwards, supra, 554 U.S. 164, could also 

have been denied self-representation under People v. Sharp, supra, 7 Cal.3d 

448, and People v. Floyd. Denying self-representation when Edwards

permits such denial does not violate the Sixth Amendment right of selfrepresentation. Because California law provides no statutory or 

constitutional right of self-representation, such denial also does not violate 

a state right. Consistent with long-established California law, we hold that 

trial courts may deny self-representation in those cases where Edwards

permits such denial.” (People v. Johnson, supra, at p. 528.) 

The Johnson court considered several standards by which to measure competence and 

concluded: “[P]ending further guidance from the high court, we believe the standard that 

trial courts considering exercising their discretion to deny self-representation should 

apply is simply whether the defendant suffers from a severe mental illness to the point 

where he or she cannot carry out the basic tasks needed to present the defense without the 

help of counsel.” (People v. Johnson, supra, 53 Cal.4th at p. 530.) 
17. 

 Here, defendant contends he met that standard, i.e., he suffered mental illness to 

the point he could not carry out the basic tasks to defend himself without counsel. 

Johnson was decided after defendant was to be tried, and after he entered a guilty plea. 

Therefore, its holding does not apply retroactively. Changes in the law—either through 

legislation or court opinion—that govern the conduct of trials apply prospectively only. 

(People v. Johnson, supra, 53 Cal.4th at p. 531.) “‘[A] law governing the conduct of 

trials is being applied “prospectively” when it is applied to a trial occurring after the 

law’s effective date, regardless of when the underlying crime was committed ....’” 

(Ibid., quoting Tapia v. Superior Court (1991) 53 Cal.3d 282, 289.) Application of a 

change in law that occurred after the crime took place is retroactive only if it changes the 

legal consequences of a defendant’s past conduct. (Tapia v. Superior Court, supra, at p. 

298.) In this case, the Johnson decision did not change the legal consequences of 

defendant’s past conduct. He pled no contest to a violation of willful infliction of 

corporal injury to a cohabitant; the legal consequences of that conduct were not affected. 

 Moreover, even under the Johnson standard for competence, the trial court did not 

err by granting defendant’s request for self-representation. “As with other determinations 

regarding self-representation, we must defer largely to the trial court’s discretion.” 

(Johnson, supra, 53 Cal.4th at p. 531.) “The trial court’s determination regarding a 

defendant’s competence must be upheld if supported by substantial evidence.” (Ibid.) 

 Here, substantial evidence supported the trial court’s decision permitting 

defendant to represent himself. The trial court had observed defendant during two full 

days of pretrial motions and also had the chance to observe and assess defendant during 

the Marsden motion heard August 19, 2011. The trial court very thoroughly and 

meticulously reviewed the waiver of counsel form with defendant. On the form, 

defendant indicated he had received assistance as a child for being “slow,” but after an 

extensive inquiry, the trial court concluded that, despite defendant’s mild reading and 

comprehension deficits, he was capable of representing himself at trial. The trial court 

did not abuse its discretion in so finding. Contrary to defendant’s assertion, the trial court 
18. 

was not required to obtain an expert’s opinion regarding defendant’s ability to represent 

himself at trial. This record does not indicate defendant “‘suffer[s] from severe mental 

illness to the point where’” he cannot “‘carry out the basic tasks needed to present [a] 

defense without the help of counsel.’” (People v. Johnson, supra, 53 Cal.4th at p. 530.) 

The trial court took a realistic account of defendant’s mild—not severe—reading 

difficulty and determined defendant was capable of representing himself despite the mild 

deficit. We perceive no error. 

 In explaining its decision, the trial court stated, in relevant part, as follows: 

 “THE COURT: At this point in time the Court has no further inquiry 

in making a determination as to whether or not the defendant is capable of 

representing himself. 

 “While the Court may inquire as I have to determine if the defendant 

has sufficient—I don’t mean it to sound derogatorily, because it isn’t meant 

to be that way or critical—the Court needs to make a determination the 

defendant has sufficient intelligence and mental capacity to represent 

themselves, the Court does not and cannot inquire as to the technical 

knowledge of the law or ability to litigate a case. 

 “The relevant inquiry from the Court’s perspective pursuant to the 

Faretta versus California decision at 422 US 806 page 835, and People 

versus Nauton, N-a-u-t-o-n, at 29 Cal.App.4th 976, is does the defendant 

have the mental capacity to make a knowing and intelligent waiver of his 

right to be represented by counsel in this case.” 

 Defendant asserts the trial court’s reference to the Nauton decision is evidence the 

trial court did not understand its discretion. However, the trial court stated the correct 

general standard for determining whether a defendant may represent himself. It noted a 

defendant must knowingly and voluntarily elect self-representation. Although the court 

did not reference the authority that followed Faretta pertaining to consideration of a 

defendant’s request where that request was accompanied by the presence of or a 

presumption of mental illness, it did consider defendant’s purported reading and 

comprehension deficits. Those deficits factored into its determination of whether 

defendant would be able to represent himself at trial and whether he was knowingly and 
19. 

intelligently giving up his right to be represented by counsel at trial. On appeal, we 

presume the court was aware of the applicable standards and applied them to the facts in 

this case. (People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on another 

ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [reviewing court 

presumes trial court knew and applied correct statutory and case law]; Ross v. Superior 

Court (1977) 19 Cal.3d 899, 913 [in absence of contrary evidence, reviewing court 

presumes trial court properly followed established law]; People v. Woods (1993) 12 

Cal.App.4th 1139, 1152 [reviewing court presumes trial court knew and properly applied 

the law; appellant’s burden to rebut presumption by affirmative showing]; People v. 

Nance (1991) 1 Cal.App.4th 1453, 1456 [reviewing court presumes trial court knew and 

applied the correct statutory and case law in exercise of its discretion]; People v. Mack

(1986) 178 Cal.App.3d 1026, 1032; see also Evid. Code, § 664.) The trial court’s 

reference to Nauton—a case recently cited by the California Supreme Court in People v. 

Taylor, supra, 47 Cal.4th at pages 875-881—does not affirmatively establish the court 

was unaware of its discretion pursuant to Edwards. 

 A review of this record strongly suggests defendant was “playing ‘the Faretta

game’” and was able to delay the trial “by juggling his Faretta rights with his right to 

counsel interspersed with Marsden motions.” (People v. Williams (1990) 220 

Cal.App.3d 1165, 1170.) As the court noted at a hearing on defendant’s motion to 

withdraw his plea: 

 “THE COURT: I’m not buying it .... [¶] Right now the blunt fact of 

the matter is that it’s pretty clear to me you didn’t want [defense counsel] to 

represent you. 

 “Multiple Marsden motions have been denied. Frankly, at this point 

in time, if one looks at the whole record of this case, it appears to me that 

the reason you made a Faretta motion and are now seeking to try to 

withdraw your plea was basically as an end run to get around multiple 

previous denials of that Marsden motion. You clearly understood what we 

were discussing in court on the previous occasions when you were here 

representing yourself and you did during the proceedings last week and 
20. 

during the earlier proceedings now. [¶] I’m flat out finding at this point in 

time that this is an attempt to deceive the Court.”5

 In sum, the trial court did not err in granting defendant’s Faretta motion. 

Defendant knowingly and voluntarily waived his constitutional right to the assistance of 

counsel. Further, the trial court properly considered defendant’s mild reading and 

comprehension deficits before determining he was capable of representing himself at 

trial. 

The Validity of the Waiver 

 Defendant asserts that because the trial court did not “conduct[] an adequate 

inquiry” as to his mental capacity, placing him in a “position where he immediately 

realized that he was incapable of proceeding on his own” and he “suddenly reverses to a 

conviction by plea,” his Sixth Amendment rights to the assistance of counsel and the 

presentation of a defense have been violated. He contends a proper inquiry would have 

led to expert reports “pointing precisely to the types of functional impairments the 

Edwards court cited ....” 

 We have already determined the trial court did not err in granting defendant’s 

Faretta motion. Therefore, the basis upon which defendant’s second argument rests is 

invalid. The argument lacks merit and is largely a restatement of the earlier argument. 

 We do not agree defendant’s unsuccessful request for advisory counsel6 in the 

wake of the trial court’s decision to grant his Faretta motion results in “a legitimate 

inference that his election to resume plea negotiations was the result of his recognition 

that he was incapable of representing himself.” Rather, on this record, the legitimate 

 5We note defendant also tried, unsuccessfully, to delay proceedings further following the 

trial court’s comments by disingenuously claiming he did not understand the court’s questions 

regarding a waiver of time for purposes of sentencing. 

6Once a defendant elects self-representation, the defendant does not have the 

constitutional right to appointment of advisory or standby counsel to assist in his or her defense, 

and the trial court has the discretion to grant or deny such a motion. (People v. Sullivan (2007) 

151 Cal.App.4th 524, 553-554.) 
21. 

inference is that defendant was simply out of alternatives. He succeeded in getting his 

defense counsel removed as his attorney, and his request to represent himself was 

properly granted. Notably too, defendant was granted a 30-day continuance, despite the 

fact the trial had already commenced and a jury panel had been assembled. He had but 

two choices: proceed to trial or accept a plea. Defendant elected the latter. 

 Moreover, it is pure speculation for defendant to assert that “expert reports would 

likely have been generated pointing precisely to the types of functional impairments the 

Edwards court cited ....” 

 “‘... A defendant seeking to represent himself “should be made 

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.]” (Faretta, supra, 422 U.S. at p. 835.) “No 

particular form of words is required in admonishing a defendant who seeks 

to waive counsel and elect self-representation.” (People v. Koontz (2002) 

27 Cal.4th 1041, 1070.) Rather, “the test is whether the record as a whole 

demonstrates that the defendant understood the disadvantages of selfrepresentation, including the risks and complexities of the particular case.” 

(Ibid.; accord, People v. Lawley (2002) 27 Cal.4th 102, 140; People v. 

Marshall (1997) 15 Cal.4th 1, 24.)’ (People v. Blair (2005) 36 Cal.4th 686, 

708.) Thus, ‘[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.’ (People v. Pinholster (1992) 1 Cal.4th 865, 928-929; accord, 

U.S. v. Lopez–Osuna (9th Cir. 2001) 242 F.3d 1191, 1199 [‘the focus 

should be on what the defendant understood, rather than on what the court 

said or understood’].) 

 “On appeal, we independently examine the entire record to 

determine whether the defendant knowingly and intelligently waived the 

right to counsel. (People v. Doolin (2009) 45 Cal.4th 390, 453.)” (People 

v. Burgener (2009) 46 Cal.4th 231, 241.) 

 After ensuring that defendant understood he faced a potential of 41 years in prison 

were he to be convicted of all counts, the following colloquy occurred regarding 

defendant’s waiver: 

 “THE COURT: [I]n answer to that you stated that you wish to 

represent yourself because, quote, because I been effectively by [defense 

counsel] who never—I’m not sure what the word s-u-m-e-n-t—discover on 
22. 

my case and did nothing in my defense. [¶] I know that you have not been 

satisfied with [defense counsel]’s representation. 

 “THE DEFENDANT: Yes, your Honor. 

 “THE COURT: Without going into the details as far as the Marsden 

motion is concerned, is it because of your dissatisfaction with that 

representation that you’re seeking to represent yourself? 

 “THE DEFENDANT: Yes, your Honor. 

 “THE COURT: Again, without going into detail, all you need to do is 

tell me yes or no, is it your desire to conduct your defense differently than 

[defense counsel] feels or has indicated he feels it is appropriate to conduct 

that defense? [¶] I don’t want you to go into detail, because [the 

prosecutor] is present. That’s just a yes or no. 

 “THE DEFENDANT: Yes. 

 “THE COURT: Okay. So there’s not necessarily a conflict of interest, 

but there is a disagreement or conflict as far as strategy between [defense 

counsel] and yourself. Is that correct? 

 “THE DEFENDANT: It’s both. It’s all. 

 “THE COURT: So you feel that there is a conflict in strategy, but also 

you feel just generally there is a conflict in terms of his representation? 

 “THE DEFENDANT: Yes, your Honor. 

 “THE COURT: Fair enough. Okay. 

 “Now, ... I’m going over a couple of these because, like I said, I 

want to make sure you understand the consequences of representing 

yourself. [¶] You understand that, assuming that you are capable of making 

a knowing and intelligent waiver of your right to a lawyer, that you do have 

a constitutional right to represent yourself. Do you understand that? 

 “THE DEFENDANT: Yes, your Honor. 

 “THE COURT: I do want to make doubly sure, though, that you 

understand you also do have the constitutional right, even if you cannot 

afford one, to be represented by a lawyer. Do you understand that? 

 “THE DEFENDANT: Yes, your Honor. 
23. 

 “THE COURT: Okay. Although there are many—I won’t say many, 

but there are folks who represent themselves in criminal proceedings when 

they are charged with a crime. Sometimes those proceedings wind up in a 

result they’re satisfied with. Although many times, perhaps more often, 

they don’t. 

 “Generally speaking it is virtually always unwise for someone, 

frankly even if they are a lawyer, to represent themselves when they are 

charged with a crime. [¶] Do you understand that? 

 “THE DEFENDANT: Yes, your Honor. 

 “THE COURT: Part of the reason for that is that while certainly, as in 

many cases, that person is unfamiliar with and untrained in the law, even in 

the case of a lawyer it is very often unwise for the lawyer to represent 

themselves, because being personally involved in a proceedings [sic] 

charged with a crime sometimes makes it difficult for one to objectively 

evaluate the evidence against them and what would be in their best 

interests. [¶] Do you understand that? 

 “THE DEFENDANT: Yes, your Honor. 

 “THE COURT: Does that make sense? 

 “THE DEFENDANT: Yes. 

 “THE COURT: Okay. You understand that while I certainly will stop 

and clarify to make sure that you understand any legal terminology that is 

used, and we’ll do our best to conduct the proceedings in a manner where 

you follow along and understand what’s going on in court and are able to 

articulate your case and your defense to the jury, you understand you’re not 

entitled to special treatment or privileges? 

 “When I rule on questions that are asked or answers that may be 

giv[en], when I instruct the jury to the law, I have to follow the law with 

respect to all of those. I can’t, if you will, put a thumb on the scale in your 

favor or give you anything [in] that regard. [¶] Do you understand that? 

 “THE DEFENDANT: Yes, your Honor.” 

 In this case, defendant was made aware of the dangers and disadvantages of selfrepresentation. The record as a whole demonstrates defendant understood the 

disadvantages and associated risks. One of those risks involved the potential of a 41-year 
24. 

prison sentence. We think it likely that after defendant realized his machinations had all 

but come to an end, he opted to take the guaranteed four-year prison term. 

 In conclusion, following our independent review, we have determined defendant 

knowingly and intelligently waived his right to counsel. The waiver is valid and no error 

occurred. 

DISPOSITION 

 The judgment is affirmed. 

 __________________________ 

PEÑA, J. 

WE CONCUR: 

 ________________________________ 

CORNELL, Acting P.J. 

 ________________________________ 

FRANSON, J.