A trial court is not required to advise a defendant of all possible penal consequences of his offense in order to obtain a valid pretrial waiver of right to counsel. Bush, who represented himself at trial, was found guilty of receiving and illegally acquiring proceeds derived from a controlled substance offense (Health & Saf. Code, § 11370.9, subd. (a)) and driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). On appeal he argued his pretrial Faretta waiver (Faretta v. California (1975) 422 U.S. 806) was defective for lack of proper admonitions. Held: Affirmed. A criminal defendant has a right to conduct his own defense provided he knowingly and intelligently waives his Sixth Amendment right to counsel. Although no particular form of warning is required, the record as a whole must show that the defendant understood the risks of self-representation. Here, the trial court repeatedly cautioned Bush about the disadvantages of self-representation and also told him he faced up to four years of imprisonment and forfeiture of a substantial amount of money that was found in his car. The court did not advise him that a monetary fine of up to $250,000 could also be imposed. However, in taking a pretrial waiver of counsel, the trial court need not specifically advise the defendant of all possible penal consequences of the charged offenses, including all monetary fines. “The test is 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.” That standard was met here.
The pretrial granting of a request for self-representation based on an inadequate Faretta admonishment is not structural error. The denial of a proper request for self-representation has been found to be structural error. However, neither the U.S. Supreme Court nor the California Supreme Court has decided whether the granting of a request for self-representation based on an inadequate Faretta admonishment is structural error. Where a defendant was fully aware of his right to counsel, was advised of the disadvantages of self-representation, requested to represent himself, and in fact was granted self-representation, the fact that the Faretta admonishment was incomplete does not mandate automatic reversal. Applying the Chapman standard, the court concluded that if the trial court erred in not advising Bush of the potential monetary fine, the error was harmless beyond a reasonable doubt.
The record as a whole reflects the trial court satisfied the constitutional requirements for obtaining a valid waiver of counsel. The repeated warnings given to Bush by the trial court satisfied the constitutional requirement that he be made aware of the disadvantages of self-representation, including the risks and complexities of his case. The court “did not err in failing to inform defendant during the Faretta colloquies of the maximum fine on conviction.” However, even if error did occur, the record as a whole reflects that Bush’s waiver of counsel was knowing and intelligent and that he would have made the same choice had the trial court advised him of the maximum potential fine on conviction.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A140589M.PDF