People v. EL

California Court of Appeal Oct 9, 2002 No. B153599Published

Before: Rubin

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Holding. The court held that while it was error to proceed without appointing standby counsel after removing a self-represented defendant from the courtroom, the error was not a total denial of the right to counsel and was subject to harmless error analysis.

Issues

Whether the removal of a self-represented defendant from the courtroom during the prosecutor's opening argument constitutes a structural error requiring automatic reversal.
Whether the temporary absence of defense counsel during a portion of the prosecutor's opening argument is subject to harmless error analysis.

Disposition. affirmed

Quotations verified verbatim against the opinion

“it is well established that anything less than the complete denial of the right to counsel is subject to harmless error analysis.”

“As the denial of his right to counsel was less than total, harmless error analysis applies.”

“we can therefore say beyond a reasonable doubt that appellant’s temporary absence during the prosecutor’s opening argument did not affect the jury’s verdicts.”

Opinion

RUBIN, J.

Eric El appeals from the judgment following his conviction for second degree murder and possession of cocaine base for sale. After review, we affirm.

[1049]

Procedural and Factual Background

Appellant Eric El shot and killed Jeffrey L. Clay in a quarrel over the quality of the cocaine appellant was selling. The People charged appellant with first degree murder (Pen. Code, § 187, subd. (a)) and possession of cocaine base for sale (Health & Saf. Code, § 11351.5). The People also specially alleged appellant personally used a handgun to kill Clay. Following appellant’s not guilty plea, the court granted his request to represent himself, but also elected to appoint standby counsel to observe the proceedings.

On August 16, 2001, during the People’s opening argument, appellant repeatedly interrupted the prosecutor with objections that the court invariably overruled. After overruling at least 22 such objections made in the time it takes to generate only five pages of a reporter’s transcript, the court excused the jury. Outside the jury’s presence, the court warned appellant not to interrupt with spurious objections, and told him if he continued making groundless objections, the bailiff would remove him from the courtroom. The court called the jury back, at which point appellant resumed making his objections. Excusing the jury a second time, the court ordered appellant’s removal from the courtroom for the rest of the prosecutor’s opening argument. Although the court had previously appointed stand by counsel and the minute order for August 16 notes that the attorney was present, the record does not show that the court directed the lawyer to represent appellant after his ejection from the proceedings. On the contrary, the reporter’s transcript contains no reference to any discussion between court and counsel or that the court appointed the attorney as counsel of record. Thus, it appears appellant was unrepresented while the prosecutor completed her opening argument. After the prosecutor finished, the court allowed appellant to return, at which time he made his argument without incident.

The jury convicted appellant of the lesser included offense of second degree murder and of possession of cocaine base for sale. It also found true that he had personally used a gun to kill his victim. (Pen. Code, § 12022.53, subd. (d).) The court sentenced him to state prison for 40 years to life. This appeal followed.

People v. EL

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RUBIN, J.

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