I'm usually pretty confident that what I say is right. At least in my own mind. (Others, obviously, may disagree.) But when I'm not confident, I'm happy to say so.
So when I read this opinion, I definitely had a thought. A thought that I think is right. But I'm not a hundred percent sure. Hence the caveat.
But if I am right, the Court of Appeal gets this one wrong.
Here's the deal:
The defendant in a criminal case makes a request to represent himself. The trial court denies it on the ground that the request was equivocal (e.g., uncertain/conditional). Defendant appeals.
On review, the Court of Appeal concludes that the trial court was wrong, holding that the request was squarely unequivocal. So reversal, right?
Wrong. Because the Court of Appeal thereafter holds that the request was nonetheless untimely, so the trial court properly denied the request -- albeit on the wrong basis.
Okay, we know that the Court of Appeal reviews judgments, not decisions, and thus may affirm on alternative grounds. That part's clear. So if, for example, the untimeliness of the request precluded the trial court (jurisdictionally or otherwise) from granting it, it makes total sense to affirm on the alternative timeliness ground.
But, here, the Court of Appeal recognizes (correctly) two different things, both of which to me seem to preclude a decision to affirm on these alternative grounds.
First, the Court of Appeal flatly says that the request here "was not timely," but its support for that proposition is merely citations that the Court of Appeal describes as holding that "a Faretta motion
made on the day of trial may be found to be untimely (People v.
Frierson (1991) 53 Cal.3d 730, 740, 742), as may one made four
days before trial is to begin (People v. Scott (2001) 91 Cal.App.4th
1197, 1205)." (emphasis added). "May" does not mean "Is". "May" implies discretion. As, I imagine, do the holdings referred to by the Court of Appeal. So, yes, the trial court perhaps could have found the motion untimely. But it didn't. Nor, I strongly suspect, was it required to so find. To put it another way, the trial court could have found the motion timely, even though it was made only a day before the trial. That's for the trial court to decide.
If something's subject to the discretion of the trial court, and the trial court doesn't exercise that discretion (e.g., because it erroneously fails to do so because it bounces the motion on a different, erroneous, basis), isn't the proper remedy to reverse and remand for the exercise of that discretion? Not to simply affirm because the trial court could -- but didn't, and was not required to -- exercise its discretion in a particular way? I would think that's the necessary, and valuable, structure of appellate review. Otherwise you're depriving the trial court (as well as the parties) of its discretion. As well as getting it wrong. Since, for example, the trial court here might well have been thinking: "I will deny the motion because it's equivocal, but had it been unequivocal, I'd have found it totally timely and would have granted it, holding (correctly) that a day before trial is enough time." Something that a straightforward decision to affirm (like here) precludes.
The second problem is related to the first, though I think it's independent as well. The Court of Appeal notes that even had the request been untimely (and, as noted above, a trial court may have perhaps properly concluded otherwise), even "an untimely Faretta request requires consideration
of the quality of counsel’s representation, the defendant’s prior
proclivity to substitute counsel, the reasons for the request, the
length and stage of the proceedings, and the disruption or delay
which might reasonably be expected to follow the granting of
such a motion" -- things that (again) the trial court does, in the exercise of its discretion, not the Court of Appeal. The Court of Appeal decides, again, that the trial court could have evaluated these factors to support the denial of the Faretta request, and (persuasively) explains why. But I have no doubt that the trial court could also have evaluated these same factors and (properly and persuasively) come to the conclusion that they support the grant of the untimely Faretta request instead.
That's what we mean by -- and is often the case with -- "discretion". One can go either way.
And if the trial court can go either way, then it's for the trial court to decide which way to go. Not for the Court of Appeal to decide to take that option away -- to obviate this discretion -- by affirming on a basis that the trial court may well have rejected.
So, yeah, we review judgments, not reasons. But I think we routinely reverse and remand for the exercise of the trial court's discretion, especially when (as here) the trial court never exercised that discretion because it erroneously decided the case on other grounds. Seems to me that we should obviously (and correctly) do that here as well, rather than -- as the Court of Appeal does -- simply affirm the decision below.
Now, ultimately, do I think the trial court will come out the same way as the Court of Appeal? Absolutely. I have little doubt that the trial court, upon remand, would say "Yeah, I didn't like the request, and had I thought it unequivocal, I would have denied it as untimely anyway." At which point the ultimate result would be the same.
But being confident -- based on human psychology and intuition -- about a result is one thing, and actually having it be done legally is another. There's a chance (albeit not a big one) that the trial court would honestly and forthrightly say upon a remand, "You know, had it been unequivocal, in the exercise of my discretion, I'd have granted it." And if that's the case, then I think we all agree the guy should get a new trial.
So I'm on board for occasionally affirming on alternative grounds. It sometimes expedites things.
But not when, as here, the trial court's discretion on those alternative, unaddressed grounds can go either way.
And I think that's the right result not only normatively, but even under existing precedent.
