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People v. Carson6/12/2003
CERTIFIED FOR PUBLICATION
David V. Carson (Defendant) appeals from judgment entered following a jury trial in which he was convicted of aggravated assault (Pen. Code, § 245, subd. (a)(1)) with the finding as to that count, that he inflicted great bodily injury within the meaning of Penal Code section 12022.7; mayhem (Pen. Code, § 203), and murder (Pen. Code, § 187) with the finding that he discharged a firearm causing death within the meaning of Penal Code section 12022.53, subdivision (d). He was sentenced to state prison for 60 years to life plus life as follows. On the murder count he was sentenced to 25 years to life plus an additional 25 years to life for the use of a firearm. (Pen. Code, §§ 190, subd. (a); 12022.53, subd. (d).) For the aggravated assault he received a midterm sentence of three years plus an additional three years for the great bodily injury enhancement. (Pen. Code, §§ 245, subd. (a)(1); 12022.7, subd. (a).) On the mayhem count he received the midterm sentence of four years which was stayed pursuant to Penal Code section 654. (Pen. Code, § 204.)
On this appeal he contends the court erred in revoking his right to represent himself, the prosecutor interfered with his right to represent himself, the trial court erred in denying his motion to sever the assault/mayhem case from the homicide case and that the court erred by instructing the jury with CALJIC No. 17.41.1.
Because the trial court wrongfully terminated defendant's right to self-representation, we reverse the judgment of conviction under compulsion of Faretta v. California (1975) 422 U.S. 806 (Faretta).
I. DEFENDANT'S RIGHT OF SELF-REPRESENTATION WAS WRONGFULLY TERMINATED
A. Facts leading up the revocation of the right to self-representation.
On December 6, 2000, defendant made a motion to represent himself. The trial court granted the request and appointed an attorney to act as standby counsel. Defendant then requested discovery so that he could prepare his defense. Thereafter, on February 7, 2001, a hearing was held and the prosecutor gave defendant, his investigator and standby counsel the discovery information. Under Penal Code section 1054.2, if a defendant is acting as his own attorney, he is only entitled to certain discovery. Thus, defendant's investigator, his standby counsel, but not defendant, received certain information including, apparently, a "rap sheet" for one of the prosecution witnesses.
On March 19, 2001, defendant indicated he was having problems with his investigator. Because of those problems, on March 22, Mr. Richardson (Richardson) was appointed as defendant's new investigator. Upon Richardson's appointment, he was given a copy of the murder book which he took to defendant and left for defendant to sift through to determine what defendant had and did not have. The next day Richardson picked up the murder book and, apparently, visited the prosecutor. When the prosecutor realized defendant had received and looked at some "rap sheets" and DMV records of witnesses, he immediately notified the court. The court then ordered the sheriff to remove all documents from defendant's jail cell. The documents were placed in three separate boxes, sealed and taken to the trial judge.
At the next scheduled hearing, the court informed counsel of the facts and stated " t appears that there were certain items that might have been delivered to Mr. Carson in error and Mr. Carson was not --there were certain items that specifically Mr. Carson was not to have in his possession, might have been delivered to him, and that he had these items in his possession in the jail."
The prosecutor added that some documents, which
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