right to make defense in California

2020A. The Sixth Amendment “grants to the accused personally the right to make his defense.” (Faretta v. California (1975) 422 U.S. 806, 819 (Faretta).) This right, grounded in the “fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty” (Weaver v. Massachusetts (2017) 582 U.S. __ , __ [ 137 S.Ct. 1899, 1908 ]), guarantees to the accused the “ultimate authority to make certain fundamental decisions regarding the case” (Jones v. Barnes (1983) 463 U.S. 745, 751 (Barnes)).

2020A. The Sixth Amendment “grants to the accused personally the right to make his defense.” (Faretta v. California (1975) 422 U.S. 806, 819 (Faretta).) This right, grounded in the “fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty” (Weaver v. Massachusetts (2017) 582 U.S. __ , __ [ 137 S.Ct. 1899, 1908 ]), guarantees to the accused the “ultimate authority to make certain fundamental decisions regarding the case” (Jones v. Barnes (1983) 463 U.S. 745, 751 (Barnes)).

1967As Professor Sherry says in footnote 72 to his article in 48 California Law Review at page 571: “ A dictum in the earliest case in which the private person’s responsibility to respond to reasonable police inquiry is discussed is in point with respect to the suspicious loiterer: ‘A police officer has a right to make inquiry in a proper manner of anyone upon the public streets at a late hour as to his identity and the occasion of his presence, if the surroundings are such as to indicate to a reasonable man that the public safety demands such identification.’ Gisske v. Sanders (1908) 9 Cal.App. 1

1967As Professor Sherry says in footnote 72 to his article in 48 California Law Review at page 571: “ A dictum in the earliest case in which the private person’s responsibility to respond to reasonable police inquiry is discussed is in point with respect to the suspicious loiterer: ‘A police officer has a right to make inquiry in a proper manner of anyone upon the public streets at a late hour as to his identity and the occasion of his presence, if the surroundings are such as to indicate to a reasonable man that the public safety demands such identification.’ Gisske v. Sanders (1908) 9 Cal.App. 1

2017In Bernhard v. Bank of America (1942) 19 Cal.2d 807 [ 122 P.2d 892 ], Justice Traynor stated: 'Under the requirement of privity, only parties to the former judgment or their privies may take advantage of or be bound by it. [Citation.] A party in this connection is one who is "directly interested in the subject matter, and had a right to make defense, or to control the proceeding, and to appeal from the judgment." [Citations.] A privy is one who, after rendition of the judgment, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by in

2017In Bernhard v. Bank of America (1942) 19 Cal.2d 807 [ 122 P.2d 892 ], Justice Traynor stated: 'Under the requirement of privity, only parties to the former judgment or their privies may take advantage of or be bound by it. [Citation.] A party in this connection is one who is "directly interested in the subject matter, and had a right to make defense, or to control the proceeding, and to appeal from the judgment." [Citations.] A privy is one who, after rendition of the judgment, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by in

1967As Professor Sherry says in footnote 72 to his article in 48 California Law Review at page 571: “ A dictum in the earliest case in which the private person’s responsibility to respond to reasonable police inquiry is discussed is in point with respect to the suspicious loiterer: ‘A police officer has a right to make inquiry in a proper manner of anyone upon the public streets at a late hour as to his identity and the occasion of his presence, if the surroundings are such as to indicate to a reasonable man that the public safety demands such identification.’ Gisske v. Sanders (1908) 9 Cal.App. 1

1967As Professor Sherry says in footnote 72 to his article in 48 California Law Review at page 571: “ A dictum in the earliest case in which the private person’s responsibility to respond to reasonable police inquiry is discussed is in point with respect to the suspicious loiterer: ‘A police officer has a right to make inquiry in a proper manner of anyone upon the public streets at a late hour as to his identity and the occasion of his presence, if the surroundings are such as to indicate to a reasonable man that the public safety demands such identification.’ Gisske v. Sanders (1908) 9 Cal.App. 1

2017In Bernhard v. Bank of America (1942) 19 Cal.2d 807 [ 122 P.2d 892 ], Justice Traynor stated: 'Under the requirement of privity, only parties to the former judgment or their privies may take advantage of or be bound by it. [Citation.] A party in this connection is one who is "directly interested in the subject matter, and had a right to make defense, or to control the proceeding, and to appeal from the judgment." [Citations.] A privy is one who, after rendition of the judgment, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by in

2017In Bernhard v. Bank of America (1942) 19 Cal.2d 807 [ 122 P.2d 892 ], Justice Traynor stated: 'Under the requirement of privity, only parties to the former judgment or their privies may take advantage of or be bound by it. [Citation.] A party in this connection is one who is "directly interested in the subject matter, and had a right to make defense, or to control the proceeding, and to appeal from the judgment." [Citations.] A privy is one who, after rendition of the judgment, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by in

2017In Bernhard v. Bank of America (1942) 19 Cal.2d 807 [ 122 P.2d 892 ], Justice Traynor stated: 'Under the requirement of privity, only parties to the former judgment or their privies may take advantage of or be bound by it. [Citation.] A party in this connection is one who is "directly interested in the subject matter, and had a right to make defense, or to control the proceeding, and to appeal from the judgment." [Citations.] A privy is one who, after rendition of the judgment, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by in

2017In Bernhard v. Bank of America (1942) 19 Cal.2d 807 [ 122 P.2d 892 ], Justice Traynor stated: 'Under the requirement of privity, only parties to the former judgment or their privies may take advantage of or be bound by it. [Citation.] A party in this connection is one who is "directly interested in the subject matter, and had a right to make defense, or to control the proceeding, and to appeal from the judgment." [Citations.] A privy is one who, after rendition of the judgment, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by in

2026(Bernhard v. Bank of America (1942) 19 Cal.2d 28 807, 811; Cal Sierra Development, Inc. v. George Reed, Inc. (2017) 14 Cal.App.5th 663, 672 (Cal Sierra).) “ ‘A nonparty alleged to be in privity must have an interest so similar to the party’s interest that the party acted as the nonparty’s “ ‘ “virtual representative” ’ ” in the first action.’ ” (Cal Sierra, at pp. 672-673, quoting DKN Holdings, supra, 61 Cal.4th at p. 826 ; accord, Victa v. Merle Norman Cosmetics, Inc. (1993) 19 Cal.App.4th 454, 464 [“Due process requires that the nonparty have had an identity or community of interest with, an

2022Privity “ ‘Since [claim preclusion] bars a subsequent action on the same claim between, not only parties to the first action, but also their privies, we must determine who qualifies as a privy to a prior action. … “Under the requirement of privity, only parties to the former judgment or their privies may take advantage of or be bound by it. [Citation.] A party in this connection is one who is ‘directly interested in the subject matter, and had a right to make defense, or to control the proceeding, and to appeal from the judgment.” ’ ” (Cal Sierra, supra, 14 Cal.App.5th at p. 672 .) The concept

2020A. The Sixth Amendment “grants to the accused personally the right to make his defense.” (Faretta v. California (1975) 422 U.S. 806, 819 (Faretta).) This right, grounded in the “fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty” (Weaver v. Massachusetts (2017) 582 U.S. __ , __ [ 137 S.Ct. 1899, 1908 ]), guarantees to the accused the “ultimate authority to make certain fundamental decisions regarding the case” (Jones v. Barnes (1983) 463 U.S. 745, 751 (Barnes)).

2020A. The Sixth Amendment “grants to the accused personally the right to make his defense.” (Faretta v. California (1975) 422 U.S. 806, 819 (Faretta).) This right, grounded in the “fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty” (Weaver v. Massachusetts (2017) 582 U.S. __ , __ [ 137 S.Ct. 1899, 1908 ]), guarantees to the accused the “ultimate authority to make certain fundamental decisions regarding the case” (Jones v. Barnes (1983) 463 U.S. 745, 751 (Barnes)).

2016(See, e.g., Rice v. Crow (2000) 81 Cal.App.4th 725, 734 [ 97 Cal.Rptr.2d 110 ] [doctrine applies “only to the same causes of action between the same parties or their privies”].) “Under the requirement of privity, only parties to the former judgment or their privies may take advantage of or be bound by it. [Citation.] A party in this connection is one who is ‘directly interested in the subject matter, and had a right to make a defense, or to control the proceeding, and to appeal from the judgment.’ [Citations.] A privy is one who, after rendition *38 of the judgment, has acquired an interest in

2016(See, e.g., Rice v. Crow (2000) 81 Cal.App.4th 725, 734 [ 97 Cal.Rptr.2d 110 ] [doctrine applies “only to the same causes of action between the same parties or their privies”].) “Under the requirement of privity, only parties to the former judgment or their privies may take advantage of or be bound by it. [Citation.] A party in this connection is one who is ‘directly interested in the subject matter, and had a right to make a defense, or to control the proceeding, and to appeal from the judgment.’ [Citations.] A privy is one who, after rendition *38 of the judgment, has acquired an interest in

1962“A police officer has a right to make inquiry in a proper manner of persons upon the public streets at night. . . .” (People v. Murphy (1959) 173 Cal.App.2d 367, 377 [ 343 P.2d 273 ]; People v. Nichols (1961) 196 Cal.App. 2d 223, 228 [ 16 Cal.Rptr. 328 ].) Looking at that which is open to view is not a search.

1962“A police officer has a right to make inquiry in a proper manner of persons upon the public streets at night. . . .” (People v. Murphy (1959) 173 Cal.App.2d 367, 377 [ 343 P.2d 273 ]; People v. Nichols (1961) 196 Cal.App. 2d 223, 228 [ 16 Cal.Rptr. 328 ].) Looking at that which is open to view is not a search.

1961A police officer has a right to make inquiry in a proper manner of persons upon the public streets at night (People v. Murphy, 173 Cal.App.2d 367, 377 [ 343 P.2d 273 ] ; People v. Jiminez, 143 Cal.App.2d 671, 673 [ 300 P.2d 68 ] ; People v. Simon, 45 Cal.2d 645, 650 [ 290 P.2d 531 ] ; Gisske v. Sanders, 9 Cal.App. 13, 16 [ 98 P. 43 ]) and, although this right does not of itself justify intensive search of their person or automobiles (People v. Simon, supra; People v. Gale, 46 Cal.2d 253, 257 [ 294 P.2d 13 ]), the inquiry may reveal reasonable or probable cause for arrest, and such is the case

1961A police officer has a right to make inquiry in a proper manner of persons upon the public streets at night (People v. Murphy, 173 Cal.App.2d 367, 377 [ 343 P.2d 273 ] ; People v. Jiminez, 143 Cal.App.2d 671, 673 [ 300 P.2d 68 ] ; People v. Simon, 45 Cal.2d 645, 650 [ 290 P.2d 531 ] ; Gisske v. Sanders, 9 Cal.App. 13, 16 [ 98 P. 43 ]) and, although this right does not of itself justify intensive search of their person or automobiles (People v. Simon, supra; People v. Gale, 46 Cal.2d 253, 257 [ 294 P.2d 13 ]), the inquiry may reveal reasonable or probable cause for arrest, and such is the case

1961A police officer has a right to make inquiry in a proper manner of persons upon the public streets at night (People v. Murphy, 173 Cal.App.2d 367, 377 [ 343 P.2d 273 ] ; People v. Jiminez, 143 Cal.App.2d 671, 673 [ 300 P.2d 68 ] ; People v. Simon, 45 Cal.2d 645, 650 [ 290 P.2d 531 ] ; Gisske v. Sanders, 9 Cal.App. 13, 16 [ 98 P. 43 ]) and, although this right does not of itself justify intensive search of their person or automobiles (People v. Simon, supra; People v. Gale, 46 Cal.2d 253, 257 [ 294 P.2d 13 ]), the inquiry may reveal reasonable or probable cause for arrest, and such is the case

1961A police officer has a right to make inquiry in a proper manner of persons upon the public streets at night (People v. Murphy, 173 Cal.App.2d 367, 377 [ 343 P.2d 273 ] ; People v. Jiminez, 143 Cal.App.2d 671, 673 [ 300 P.2d 68 ] ; People v. Simon, 45 Cal.2d 645, 650 [ 290 P.2d 531 ] ; Gisske v. Sanders, 9 Cal.App. 13, 16 [ 98 P. 43 ]) and, although this right does not of itself justify intensive search of their person or automobiles (People v. Simon, supra; People v. Gale, 46 Cal.2d 253, 257 [ 294 P.2d 13 ]), the inquiry may reveal reasonable or probable cause for arrest, and such is the case

2016(People v. Marshall (1997) 15 Cal.4th 1, 20 [“The high court has not extended the same kind of protection to the right of self-representation”].) For example, “[t]he right to counsel is self-executing; the defendant need make no request for counsel in order to be entitled to legal representation.” (People v. Koontz (2002) 27 Cal.4th 1041, 1069 .) The right to self- representation, on the other hand, must be clearly, timely, and effectively invoked.

2013(See Faretta, supra, 422 U.S. at p. 819 [“[t]he Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense”]; People v. Koontz (2002) 27 Cal.4th 1041, 1069 [“‘A defendant in a criminal case possesses two constitutional rights with respect to representation that are mutually exclusive.

2020Governing law “The Sixth Amendment . . . grants to the accused personally the right to make his defense.” (Faretta, supra, 422 U.S. at p. 819 ; accord, People v. Trujeque (2015) 61 Cal.4th 227, 262 (Trujeque) [“Under Faretta, a defendant ‘must be free personally to decide whether in his particular case counsel is to his advantage,’ even though ‘he may conduct his own defense ultimately to his own detriment . . . .’”].) “A trial court may . . . revoke a defendant’s right to represent himself if he ‘deliberately engages in serious and obstructionist misconduct.’” (Trujeque, at p. 263, quoting Fa

2016(Faretta v. California (1975) 422 U.S. 806, 818-819 [ 95 S.Ct. 2525 , 45 L.Ed.2d 562 ] (Faretta) [“[t]he Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense”].) “Under Faretta, a defendant ‘must be free personally to decide whether in his particular case counsel is to his advantage,’ even though ‘he may conduct his own defense ultimately to his own detriment.’” (People v. Trujeque (2015) 61 Cal.4th 227, 262 .) Thus, if the defendant is mentally competent and within a reasonable time before trial

2020(In re Harris (1968) 69 Cal.2d 486, 490 [former civil arrest and bail statutes held unconstitutional because there was no requirement of notice of the statutory right to apply to vacate an arrest or reduce bail].) “[D]ue process of law required by the Fourteenth Amendment to the United States Constitution and article I, section 13, of the California Constitution is not afforded merely because [a] … defendant may be able to get a hearing as to the lawfulness of his imprisonment by chance or by grace.

2020Governing law “The Sixth Amendment . . . grants to the accused personally the right to make his defense.” (Faretta, supra, 422 U.S. at p. 819 ; accord, People v. Trujeque (2015) 61 Cal.4th 227, 262 (Trujeque) [“Under Faretta, a defendant ‘must be free personally to decide whether in his particular case counsel is to his advantage,’ even though ‘he may conduct his own defense ultimately to his own detriment . . . .’”].) “A trial court may . . . revoke a defendant’s right to represent himself if he ‘deliberately engages in serious and obstructionist misconduct.’” (Trujeque, at p. 263, quoting Fa

2016(Faretta, supra, 422 U.S. at p. 835 ; People v. Jackson (2009) 45 Cal.4th 662, 689 .) In considering whether a defendant is competent to represent himself or herself, “the standard that trial courts . . . 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 (2012) 53 Cal.4th 519, 530 (Johnson); accord, People v. Gardner (2014) 231 Cal.App.4th 945, 958 .) “Trial courts must apply this standard cautiously. . . .

2016(Faretta v. California (1975) 422 U.S. 806, 819 [ 95 S.Ct. 2525 , 45 L.Ed.2d 562 ] [“The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense”]; accord, People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1001 .) There are fundamental differences between these two rights.

2016(People v. Marshall (1997) 15 Cal.4th 1, 20 [“The high court has not extended the same kind of protection to the right of self-representation”].) For example, “[t]he right to counsel is self-executing; the defendant need make no request for counsel in order to be entitled to legal representation.” (People v. Koontz (2002) 27 Cal.4th 1041, 1069 .) The right to self- representation, on the other hand, must be clearly, timely, and effectively invoked.

2016(Faretta, supra, 422 U.S. at p. 835 ; People v. Jackson (2009) 45 Cal.4th 662, 689 .) In considering whether a defendant is competent to represent himself or herself, “the standard that trial courts . . . 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 (2012) 53 Cal.4th 519, 530 (Johnson); accord, People v. Gardner (2014) 231 Cal.App.4th 945, 958 .) “Trial courts must apply this standard cautiously. . . .