People v. Goodwillie (147 Cal. App. 4th 695, 2007)

Opinion

AARON, J.

I.

INTRODUCTION

Appellant Markus D. Goodwillie appeals from his conviction for burglary, unlawfully taking an automobile, assault with a deadly weapon, petty theft, evading an officer with reckless driving, and resisting an officer.

At his arraignment, Goodwillie waived his right to be represented by counsel, choosing instead to represent himself. At that time, the judge who conducted the arraignment appointed advisory counsel to assist Goodwillie in preparing his case. On the day originally set for trial, the judge who was assigned to try the case relieved the attorney who was serving as advisory counsel to Goodwillie, sua sponte, commenting that he did not believe Goodwillie had a right to the assistance of advisory counsel. After the trial judge relieved Goodwillie’s advisory counsel, the judge asked Goodwillie whether he wished to continue representing himself in light of the fact that he would no longer have the assistance of advisory counsel. Goodwillie reaffirmed his decision to represent himself. At trial, the jury convicted Goodwillie on all counts.

On appeal, Goodwillie argues that (1) the trial court violated his Sixth Amendment right to the assistance of counsel when the judge relieved Goodwillie’s advisory counsel; (2) the court violated his due process and Sixth Amendment rights by failing to ascertain whether Goodwillie “actually understood” the significance and consequences of his decision to represent himself; (3) the court violated his due process and Sixth Amendment rights by granting the prosecution’s motion to exclude the testimony of an eyewitness identification expert; and (4) his due process and Sixth Amendment rights were violated when both the court and the prosecutor misinformed him of the amount of credit he could receive for good behavior under a plea offer the prosecutor had extended to him.

While the trial court erred in reconsidering and effectively reversing the order of another judge appointing advisory counsel for Goodwillie, we conclude that the trial court’s decision to relieve advisory counsel did not violate Goodwillie’s Sixth Amendment rights. Because Goodwillie has not established that he was prejudiced by the court’s decision to relieve his advisory counsel, reversal on this ground is not required.

With respect to the second and third issues Goodwillie raises, the trial court did ascertain that Goodwillie understood the significance and consequences of choosing to represent himself, and thus did not violate Goodwillie’s constitutional rights in this regard. We also conclude that the trial court did not violate Goodwillie’s due process or Sixth Amendment rights when the court disallowed testimony by an eyewitness identification expert.

Goodwillie’s convictions must be reversed, however, because both the court and the prosecutor misinformed Goodwillie regarding his eligibility for good behavior credits under a plea bargain offered by the prosecution, thereby violating Goodwillie’s right to due process. The record discloses that Goodwillie would have accepted the plea bargain if he had known that he would in fact be eligible to receive 50 percent credit, rather than 15 percent credit, as he was informed by both the judge and the prosecutor. We therefore vacate the judgment, and remand the matter to the trial court.

On remand, the district attorney may elect, within 30 days, to retry defendant and if the district attorney so chooses, resume the plea negotiation process, or the district attorney may submit the previously offered plea bargain to the trial court for its approval. If the district attorney chooses to submit the plea bargain to the court and the court approves it, the judgment shall be modified consistent with the terms of the plea bargain.

n.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

1. The prosecution’s case

On August 9, 2004, John Ralph looked out his bedroom window at his truck, which he had parked outside of his apartment building in a visitor’s stall. Ralph saw a man he later identified as Goodwillie standing near the truck. Ralph saw Goodwillie put something down his pants, then pull his shirt down over the object. Ralph ran downstairs and encountered a neighbor who told him that Goodwillie had been inside the truck. Ralph checked inside the truck and noticed that his handicapped-parking placard was missing. A few weeks later, Ralph saw Goodwillie come out of an apartment across the street from Ralph’s apartment complex and get into a silver Chrysler 300M. Ralph had the impression that the car was a rental car.

On the morning of August 9, Margaret King, one of Ralph’s neighbors, was outside smoking a cigarette when she saw a man sitting in the driver’s seat of a white Ford Expedition. She watched the man get out of the vehicle and walk across the street. She then saw Ralph run out of his apartment. Ralph asked King whether she had seen a man in his vehicle. King picked Goodwillie’s photo from a photo lineup and identified him as the man who had been sitting in Ralph’s Expedition. King later observed Goodwillie driving a silver car, and saw him go into one of the apartments across Presioca Street.

On August 18, 2004, Goodwillie burglarized the apartment of Jaime Ocadiz. Goodwillie entered the apartment through a bedroom window after Ocadiz left for work. Goodwillie took a DVD player, speakers, a VCR, and approximately $25 to $30 from the apartment.

The manager of Ocadiz’s apartment complex, who lived in the apartment below Ocadiz, set up a surveillance video system in his personal backyard on August 18 because items were missing from his apartment, and there had been break-ins at other apartments in the complex. The manager turned on the surveillance system before he left for work that morning. When he returned home at approximately 5:00 p.m., he reviewed the video. The manager saw Goodwillie on the video. The manager knew that Goodwillie was “unofficially” staying in apartment A-4 in the complex. He knew that Goodwillie’s first name was Markus, and he had seen Goodwillie driving a silver car.

San Diego County Sheriff’s Detective Oscar Escobedo investigated the theft of Ralph’s handicapped-parking placard. When Detective Escobedo presented a photo lineup to Ralph and King, both picked out Goodwillie’s photograph. Ralph told detectives that he had seen Goodwillie driving a silver car. Detective Escobedo located the car. After running the license plate number of the silver car through the police database, Detective Escobedo determined that the vehicle had not been reported stolen. Detective Escobedo contacted Thrifty Rent A Car and discovered that the silver Chrysler was one of its cars and that it had been missing since July 27, 2004. Escobedo instructed the rental car agency representative to report the car stolen.

On August 18, 2004, San Diego County Deputy Sheriff Robert Day responded to a burglary call at Ocadiz’s apartment complex. Deputy Day contacted the apartment complex manager, who gave Day the videotape from his security camera. Deputy Day lifted fingerprints from a window in Ocadiz’s daughter’s room and from a sliding glass door. A fingerprint examiner concluded that a latent print lifted from the bedroom window at the Ocadiz apartment matched Goodwillie’s right middle fingerprint.

On August 19, deputies conducted a search for a silver Chrysler near Presioca Street, the street on which Ralph’s and Ocadiz’s apartment buildings were located. After they located the vehicle parked on a nearby street, deputies watched as Goodwillie got into the Chrysler and drove toward the end of that street. The deputies followed Goodwillie down the street in three patrol cars with their lights and sirens activated. Goodwillie turned onto Presioca Street and then onto another nearby street. Two patrol cars blocked the intersection, preventing a Lincoln that was being driven by Deandre Pamplin from moving through the intersection. Goodwillie started to get out of the Chrysler, but then got back in and accelerated toward the Lincoln and the police blockade. Goodwillie crashed the Chrysler into the Lincoln, pushing it through the blockade of patrol cars. Pamplin suffered injuries to his back and neck. The crash caused $6,000 in damages to Pamplin’s car.

After he collided with the Lincoln, Goodwillie drove the Chrysler through the police blockade, and continued driving to Birch Street. Goodwillie crashed into a trailer at the dead end of Birch Street and fled on foot. A sheriff’s deputy chased Goodwillie as he climbed over several fences and ran into a mobilehome park, but Goodwillie evaded apprehension. One deputy thought that Goodwillie might be heading to the apartment where the deputies had surveilled him earlier. The deputy contacted the police dispatcher and requested that the dispatcher send deputies back to the apartment.

When deputies inspected the abandoned Chrysler, they found John Ralph’s stolen handicapped-parking placard in the glove compartment.

Sheriff’s deputies returned to the apartment where Goodwillie had been staying and knocked on the door. They received no response. The deputies obtained a key to the apartment from the apartment manager and entered the apartment. Inside they found Goodwillie, wearing only a towel. He had scratches on his arms and legs. Deputies noticed clothing covered with oil inside the apartment. The sheriff’s deputy who had chased Goodwillie had oil on his hands.

In a postarrest interview, Goodwillie told law enforcement officers that a friend had loaned him the Chrysler and that the friend was supposed to return to retrieve the car after a couple of days. The friend never came back to get the car, so Goodwillie continued to drive it. When Goodwillie saw deputies chasing him, he realized that the car must be stolen. He said that he ran away because he did not want to go to jail. Goodwillie denied that he had taken Ralph’s handicapped-parking placard, and also denied having burglarized the Ocadiz apartment. However, after a detective showed him the surveillance video taken at the time of the burglary, Goodwillie admitted that he had been at the scene of the burglary, and that he had sold the items that were taken during the burglary in order to buy “dope.” Goodwillie also admitted that he had crashed into the Lincoln and the patrol car.

2. Goodwillie’s defense

Goodwillie’s defense was mistaken identification. Deputy Villalobos testified that he did not see Goodwillie leave his apartment, but that he did see Goodwillie get into the Chrysler. Villalobos also testified that when the deputies returned to the apartment complex to search for Goodwillie after the car chase, the deputies went to apartment B-4 before they eventually found Goodwillie in apartment A-4.

Ralph testified that he remembered that he had estimated that the man he saw near his vehicle was the same height as Goodwillie, but he admitted that because he was looking down on the scene, he could not really tell how tall the man was. Ralph said he could not recall what he had told Deputy Sanchez. Deputy Sanchez testified that Ralph had not indicated that he knew the suspect or that he had seen the suspect in the neighborhood at the time he reported the theft of his handicapped-parking placard.

In an apparent attempt to establish that the assault was not a serious one, Goodwillie’s attorney elicited testimony from Pamplin that Pamplin had told police that he was fine and in no pain immediately after Goodwillie crashed into his car. He did not see a chiropractor until August 24, 2004, six days after the incident.

B. Procedural background

Goodwillie was arraigned on criminal charges and entered not guilty pleas on August 24, 2004. The court granted Goodwillie’s request to represent himself, and ordered the appointment of ancillary counsel. Goodwillie signed a Lopez waiver form.

On November 30, 2004, the court conducted a preliminary examination, during which Attorney Alan Williams served as advisory counsel to Goodwillie.

On December 8, 2004, the People filed an information charging Goodwillie with one count of petty theft (Pen. Code, § 484 (count 1)); one count of burglary (Pen. Code, § 459 (count 2)); one count of unlawfully taking a motor vehicle (Veh. Code, § 10851, subd. (a) (count 3)); one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) (count 4)); one count of assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c) (count 5); one count of evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a) (count 6); and one count of resisting an officer (Pen. Code, § 148, subd. (a)(1) (count 7)).

Advisory counsel appeared with Goodwillie at hearings that were held on January 18, February 14, and February 28, 2005.

On February 28, the date on which the trial was originally scheduled to begin, Goodwillie appeared in court with his advisory counsel. The trial judge discussed his intention to relieve advisory counsel, sua sponte. Before the court relieved counsel, Goodwillie rejected a plea bargain offer. The trial court then relieved advisory counsel, over Goodwillie’s objection. The trial court informed Goodwillie that his options were either to have the court appoint counsel to represent him, or to represent himself without the assistance of advisory counsel. Goodwillie chose to represent himself.

On March 28, 2005, Goodwillie pled guilty to count 1, petty theft with a prior. The court granted Goodwillie’s motion to bifurcate the trial on the prior convictions.

The jury trial on the remaining counts began on March 28, and continued on March 29, 30, and April 4. On March 30, the prosecutor filed a motion to exclude eyewitness identification expert testimony. The court granted the motion.

The case was submitted to the jury at 4:30 p.m. on April 4. Immediately thereafter, the court gave the jury standard admonishments and excused them for the day. The jury began deliberating at 9:00 a.m. on April 5. At 10:55 a.m. the jury informed the court that it had reached its verdicts. The jury found Goodwillie guilty on all counts, and found true the allegations pertaining to counts 4 and 5 that Goodwillie had used a vehicle as a deadly weapon.

On April 5, 2005, the trial court found true the allegations that Goodwillie suffered three prison priors.

The trial court sentenced Goodwillie to an aggregate term of 10 years in prison on June 14, 2005. The 10-year sentence consisted of the upper term of six years on count 2 (burglary), eight months on count 1 (petty theft), one year four months on count 5 (assault with a deadly weapon on an officer), and a one-year enhancement for each of the first two prison priors. The court stayed the sentences on counts 3, 4, and 6, pursuant to Penal Code section 654, and struck Goodwillie’s third prison prior.

Goodwillie filed a timely notice of appeal on June 24, 2005.

III.

DISCUSSION

A. While the trial court did not violate Goodwillie’s constitutional right to the assistance of counsel when it relieved his previously appointed advisory counsel, the court erred in reconsidering and reversing the order of another judge

1. Background

On August 24, 2004, just prior to his arraignment, Goodwillie requested that the court allow him to represent himself. Judge Charles Ervin, who conducted the arraignment, discussed with Goodwillie whether Goodwillie understood the contents of the Lopez waiver form he had signed. Goodwillie indicated that he had been advised as to the significance and consequences of representing himself. The court granted Goodwillie’s request to represent himself and proceeded with the arraignment. The transcript of that hearing does not include any discussion regarding the appointment of advisory counsel. However, the minutes from the hearing indicate that the trial court granted Goodwillie’s request to represent himself, ordered the sheriff to provide Goodwillie with “all privileges as to pro pers [sic]” and ordered “PCC to provide ancillary counsel.”

The minutes from a subsequent readiness conference that was held on September 3, 2004, before Judge William McGrath indicate that no advisory counsel had yet been assigned to Goodwillie. The notes provide: “Clerk’s office to contact PCC and [ric] provide him with ancillary counsel. . . .” The minutes from at least three subsequent proceedings indicate that Goodwillie continued to proceed in propria persona, and that at these proceedings, “A. Williams” appeared with Goodwillie as “advisory” counsel.

On February 28, 2005, the date originally set for trial, Goodwillie appeared before the trial judge, Judge Preckel, with “Alan Williams as advisory counsel.” Goodwillie requested that the trial be continued because he had not received some discovery materials he had requested. The trial court granted Goodwillie’s request and began discussing possible trial dates with the prosecutor and Goodwillie. When Attorney Williams spoke up to inform the trial judge that he had a scheduling conflict during the week the court was proposing, the judge said:

“Well, that’s another matter that, frankly, I wanted to talk about, and that is, why should the court, or the taxpayers, be paying for your services as advisory counsel, Mr. Williams? I recognize you’re kind of in the middle, perhaps, in terms of answering that question. But I am raising the issue because there is a philosophical difference, I sense, between and amongst myself and some of my colleagues. My attitude is that a defendant asserts his right to self-representation, and after due consideration and a hearing that request is granted, then the individual in question ought to be representing himself for all purposes. There is no legal entitlement to advisory counsel, or co-counsel, or however you wish to characterize it.

“In other words, in my view, it’s an all or nothing situation. Mr. Goodwillie, you either represent yourself or you don’t. And that is to say if you don’t, then instead you’re represented by an attorney acting on your behalf. So we’re going to hopefully either reach a meeting of the minds this morning, or else the court is going to rule one way or another regarding your continuing self-representation. And by that, if you wish to continue to represent yourself, fine. But absent some real substantial and persuasive justification as to why the public ought to be paying for Mr. Williams’ services as advisory counsel, I’m going to thank and excuse Mr. Williams from further involvement in this case.”

After Goodwillie explained to the court why he believed he needed Attorney Williams’s assistance, the court said, “No, he’s not going to come in any longer absent some showing that that’s something to which you’re legally entitled, and I know of no s[uch] authority.”

The court then asked Attorney Williams what his involvement in the case had been, other than having been present at hearings. While Attorney Williams voiced his discomfort with his position as advisory counsel, he explained that he had advised Goodwillie as to the Evidence Code, trial procedures, how to research the law, and the names of cases. The trial judge responded: “I know it’s been done before too, but that doesn’t make it right in my view. And don’t get me wrong, I certainly appreciate the services that you’ve rendered. But I also know that like most criminal defense attorneys, you’ve got a very busy and complex case load of your own. And I question, frankly, whether your time is well spent in advisory capacity [¿zc] sitting alongside Mr. Goodwillie and figuratively, at least, holding his hand. If he wants to represent himself, great. And if he wants to continue to do so, great. But you’re going to be out of the picture after this morning.”

After further discussion with Attorney Williams, the court asked the prosecutor, “What’s the offer on this case, Ms. Worden? What’s it been, or what is it?” The trial court, the prosecutor, and Goodwillie proceeded to discuss plea options. After Goodwillie rejected the final plea offer, the trial judge set a new trial date and said to Goodwillie, “Mr. Goodwillie, understanding and reminding you of the court’s statements earlier this morning regarding the continuing involvement of Mr. Williams in this case, I am going to relieve him of this [wc] role as advisory counsel.”

Goodwillie represented himself, without the assistance of advisory counsel, during the remainder of the criminal proceedings, including trial.

2. Analysis

a. There is no constitutional right to the assistance of advisory counsel

Goodwillie contends that the trial court violated his Sixth Amendment right to the assistance of counsel by relieving his appointed advisory counsel just prior to trial. Goodwillie claims that the Sixth Amendment guarantees a self-represented defendant the right to the assistance of advisory counsel. We disagree.

Goodwillie notes that the United States Supreme Court has determined that the Sixth Amendment gives a criminal defendant the right to be represented by counsel (Powell v. Alabama (1932) 287 U.S. 45 [77 L.Ed. 158, 53 S.Ct. 55]) and the right to represent himself (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525] (Faretta)). He contends, however, that the United States Supreme Court has never ruled on the specific question he raises—i.e., whether the Sixth Amendment guarantees a defendant the right to the assistance of advisory counsel, or to something less than full representation by counsel. The Attorney General appears to agree that the United States Supreme Court has yet to address this particular question.

The weight of both federal and California precedent, including United States Supreme Court precedent, establishes that a criminal defendant does not have a constitutional right to the assistance of advisory counsel, but that it is within the discretion of trial courts to appoint advisory counsel to assist a criminal defendant who is proceeding in propria persona. (See People v. Garcia (2000) 78 Cal.App.4th 1422, 1430 [93 Cal.Rptr.2d 796] [“a defendant who elects to represent himself or herself has no constitutional right to advisory or stand-by counsel or any other form of ‘hybrid’ representation”], citing McKaskle v. Wiggins (1984) 465 U.S. 168, 183 [79 L.Ed.2d 122, 104 S.Ct. 944] (McKaskle).)

In McKaskle, the United States Supreme Court stated: “Faretta does not require a trial judge to permit ‘hybrid’ representation of the type Wiggins was actually allowed. But if a defendant is given the opportunity and elects to have counsel appear before the court or jury, his complaints concerning counsel’s subsequent unsolicited participation lose much of their force. A defendant does not have a constitutional right to choreograph special appearances by counsel.” (McKaskle, supra, 465 U.S. at p. 183.)

Both California courts and federal courts have interpreted this language as precluding a conclusion that the Sixth Amendment guarantees the right to advisory counsel or any other “hybrid” form of representation. (See, e.g., People v. Blair, supra, 36 Cal.4th at p. 723, quoting People v. Bloom, supra, 48 Cal.3d at p. 1218 (Bloom) [citing McKaskle in support of conclusion that “none of the ‘hybrid’ forms of representation, whether labeled ‘cocounsel,’ ‘advisory counsel,’ or ‘standby counsel,’ is in any sense constitutionally guaranteed”]; U.S. v. Cromer (6th Cir. 2004) 389 F.3d 662, 682, fn. 12 [citing McKaskle in support of assertion that “[i]t is well settled that there is no constitutional right to hybrid representation”]; U.S. v. Lawrence (4th Cir. 1998) 161 F.3d 250, 253 [citing McKaskle in support of assertion that “Sixth Amendment does not require a court to grant advisory counsel to a criminal defendant who chooses to exercise his right to self-representation by proceeding pro se”]; U.S. v. Singleton (4th Cir. 1997) 107 F.3d 1091, 1100 [citing McKaskle in support of conclusion that a court may, in its discretion, allow attorney participation as advisory counsel, but that the Constitution does not mandate it].)

The California Supreme Court has long held that advisory counsel and other hybrid forms of representation are not constitutionally mandated. In People v. Mattson (1959) 51 Cal.2d 777, 795 [336 P.2d 937], the California Supreme Court stated unequivocally that the appointment of advisory counsel is a discretionary matter: “Our conclusion that a California defendant has no absolute right to the services of an attorney in a mere advisory capacity harmonizes with the federal law as to right to counsel.” The California Supreme Court reiterated the rule that a criminal defendant does not have a constitutional right to advisory counsel in People v. Bigelow (1984) 37 Cal.3d 731, 744-745 [209 Cal.Rptr. 328, 691 P.2d 994] (Bigelow) (“automatic reversal” based on fundamental right to counsel “is inapplicable to the present case, for Bigelow had no absolute right to advisory counsel [citation], but only to a considered exercise of judicial discretion”); see also People v. Garcia, supra, 78 Cal.App.4th at page 1430 (“a defendant who elects to represent himself or herself has no constitutional right to advisory or stand-by counsel or any other form of ‘hybrid’ representation”).

Goodwillie argues that much of the language in these cases constitutes dicta, and cannot “overrule the plain language and meaning of the Sixth Amendment right to assistance of counsel.” Goodwillie cites Bloom, supra, 48 Cal.3d 1194, as supporting his position. The defendant in Bloom argued that because he sought only cocounsel status, and did not seek to fully represent himself, his request was addressed to the “ ‘ “sound discretion of the court.” ’ ” (Id. at p. 1218.) He then argued that the court had abused its discretion in granting his motion to represent himself because he had sought cocounsel status in order to seek a verdict of death. On appeal, he argued that this purpose violated a public policy against using the judicial system to commit state-aided suicide. (Ibid.)

In setting out the legal framework in which it was reviewing Bloom’s contention, the California Supreme Court stated: “While the Sixth Amendment guarantees both the right to self-representation and the right to representation by counsel, a defendant who elects representation by counsel does not have a constitutionally protected right to appear as cocounsel [citations], and a defendant who elects self-representation ‘does not have a constitutional right to choreograph special appearances by counsel’ [citation]. Thus none of the ‘hybrid’ forms of representation, whether labeled ‘cocounsel,’ ‘advisory counsel,’ or ‘standby counsel,’ is in any sense constitutionally guaranteed.” (Bloom, supra, 48 Cal.3d at p. 1218, italics added.)

Goodwillie asserts that this language was not only dicta, but that it was a “gratuitous conclusion” that went “far beyond the principles in Hamilton or McKaskle.” (See People v. Hamilton (1989) 48 Cal.3d 1142 [259 Cal.Rptr. 701, 774 P.2d 730] (Hamilton); see also McKaskle, supra, 465 U.S. 168.) We are, however, bound by the Supreme Court’s repeated holdings that the Sixth Amendment does not provide a criminal defendant with the right to any hybrid form of representation, including advisory counsel.

The Supreme Court’s decision in Hamilton further supports the conclusion reached in Bloom. In Hamilton, the Supreme Court stated, “A criminal accused has only two constitutional rights with respect to his legal representation, and they are mutually exclusive. He may choose to be represented by professional counsel, or he may knowingly and intelligently elect to assume his own representation. [Citation.] An accused who chooses professional representation, rather than self-representation, has no right to participate as cocounsel. [Citations.]” (Hamilton, supra, 48 Cal.3d at p. 1162.) It is thus clear that under California law a criminal defendant’s constitutional rights regarding counsel are either full representation by counsel or self-representation.

The California Supreme Court has thus clearly held that the Constitution does not guarantee a criminal defendant the right to the assistance of advisory counsel when he or she chooses to exercise the right to self-representation. Under California law, a criminal defendant’s constitutional rights regarding counsel are either full representation by counsel or self-representation. Goodwillie’s assertion that the Sixth Amendment affords him the right to represent himself and at the same time receive the assistance of advisory counsel thus fails.

b. The trial judge did not have the authority to reconsider the arraigning judge’s ruling appointing advisory counsel to assist Goodwillie

Although Goodwillie had no constitutional right to the assistance of advisory counsel, under the particular circumstances of this case, the trial judge erred in relieving advisory counsel previously appointed by the arraigning judge. However, Goodwillie has failed to establish that this error was prejudicial.

A trial court generally has the authority to correct its own prejudgment errors. (In re Alberto (2002) 102 Cal.App.4th 421, 426 [125 Cal.Rptr.2d 526] (Alberto).) “ ‘In criminal cases, there are few limits on a court’s power to reconsider interim rulings . . . .’ [Citation.]” (Ibid.) However, the general rule does not apply when it is a different judge who is reconsidering the interim ruling. (Id. at p. 427.)

“For one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court. ‘The Superior Court of Los Angeles County, though comprised of a number of judges, is a single court and one member of that court cannot sit in review on the actions of another member of that same court.’ [Citation.] Stated slightly differently, because a superior court is but one tribunal, an order ‘ “ ‘ “made in one department during the progress of a cause can neither be ignored nor overlooked in another department [Citation.]” (Alberto, supra, 102 Cal.App.4th at pp. 427-428.) The Alberto court explained the reasoning behind this rule: “Different policy considerations ... are operative if the reconsideration is accomplished by a different judge. Accordingly, [in those situations] the general rule is just the opposite: the power of one judge to vacate an order made by another judge is limited. [Citation.] This principle is founded on the inherent difference between a judge and a court and is designed to ensure the orderly administration of justice. ‘If the rule were otherwise, it would be only a matter of days until we would have a rule of man rather than a rule of law. To affirm the action taken in this case would lead directly to forum shopping, since if one judge should deny relief, [parties] would try another and another judge until finally they found one who would grant what they were seeking. Such a procedure would instantly breed lack of confidence in the integrity of the courts.’ [Citation.]” (Id. at p. 427.)

The rule that one superior court judge may not reconsider the previous ruling of another superior court judge applies in a variety of settings, in both criminal and civil cases. (See, e.g., People v. Madrigal (1995) 37 Cal.App.4th 791, 795-797 [43 Cal.Rptr.2d 498] [ruling of second judge imposing a prison sentence after probation violation hearing is unlawful when first judge had earlier reinstated probation]; Elsea v. Saberi (1992) 4 Cal.App.4th 625, 630-631 [5 Cal.Rptr.2d 742] [second judge without power to vacate default judgment entered by first judge].)

There are a few exceptions to the general rule that one superior court judge may not vacate or otherwise nullify the order of another. Reversal of a judgment and remand for new trial permits the “renewal and reconsideration of pretrial motions and objections to the admission of evidence. [Citation.]” (People v. Mattson (1990) 50 Cal.3d 826, 849 [268 Cal.Rptr. 802, 789 P.2d 983].) In addition, two narrow lines of cases “appear to authorize one trial judge to reconsider an issue already decided by a colleague: one, where the first judge is unavailable [to decide a motion for reconsideration] [citation], or two, where the first order was made through inadvertence, mistake, or fraud. [Citations.]” (Alberto, supra, 102 Cal.App.4th at p. 430.)

Here, the trial judge reversed, sua sponte, the arraigning judge’s order that advisory counsel be appointed to assist Goodwillie. The trial judge acknowledged that his decision to deny Goodwillie the assistance of advisory counsel was based on a “philosophical difference” between himself and “some of [his] colleagues.” The situation in this case does not fall within any of the narrow exceptions to the general rule that limits reconsideration of one judge’s order by a different judge. There was no reversal and remand, no motion for reconsideration, and no showing that the original ruling was the result of inadvertence, mistake, or fraud. Further, there is no statutory provision that specifically authorizes reconsideration of this issue. The trial judge’s order relieving advisory counsel appears to be precisely the type of action the rule is meant to prevent in that the trial judge essentially reviewed and rescinded the arraigning judge’s order. The arraigning judge exercised his discretion to appoint advisory counsel; the trial judge did not have the authority to nullify that order.

While the trial judge erred in reversing the arraigning judge’s order, Goodwillie has not established that he suffered prejudice as a result of the trial judge’s error. Although Goodwillie maintains that the trial judge’s decision to relieve advisory counsel amounted to a deprivation of the assistance of counsel in violation of the Sixth Amendment such that reversal per se is required, for the reasons stated in part III.A.2.a., ante, we disagree. Goodwillie was provided with advisory counsel because the arraigning judge exercised his discretion to appoint such counsel, not because Goodwillie had a constitutional right to the assistance of advisory counsel. The trial court’s subsequent improper reversal of the arraigning judge’s exercise of discretion thus does not require automatic reversal.

We recognize that in People v. Bigelow, supra, 37 Cal.3d at pages 744-746, the Supreme Court concluded that per se reversal would be required in a case in which the trial court’s refusal to appoint advisory counsel was an abuse of discretion. In Bigelow, supra, 37 Cal.3d at page 744, the Supreme Court concluded that under the specific circumstances of that capital case, the trial court had abused its discretion by failing to recognize that it was within the court’s discretion to appoint advisory counsel to assist the defendant. The Supreme Court concluded that no trial court could have reasonably denied Bigelow the assistance of advisory counsel, thus effectively holding that Bigelow had a right to the assistance of advisory counsel under the circumstances of that case.

The Supreme Court applied the per se reversal rule in Bigelow not because the defendant had an absolute right to advisory counsel, but rather, because it was impossible to determine “the effect of the absence of [advisory] counsel upon the presentation of the case.” (Bigelow, supra, 37 Cal.3d at p. 745.) The court explained: “Some decisions justify a rule of automatic reversal by emphasizing the fundamental character of the right to counsel. [Citation.] That rationale is inapplicable to the present case, for Bigelow had no absolute right to advisory counsel [citation], but only to a considered exercise of judicial discretion. A second reason for a rule of per se reversal, however, applies fully in the present setting: the impossibility of assessing the effect of the absence of counsel upon the presentation of the case.” (Id. at pp. 744-745.)

We conclude that the per se reversal mle articulated in Bigelow, supra, 37 Cal.3d at page 746, does not apply here. Unlike in Bigelow, if it had been the trial judge in this case who had considered in the first instance whether to appoint advisory counsel to assist Goodwillie, there is no doubt that a decision not to appoint advisory counsel would not have constituted an abuse of discretion. The Bigelow court was careful to limit its ruling to the particular circumstances of that case, including the fact that the defendant was facing the death penalty, and that the defendant “proved totally incompetent as a defense attorney,” such that the “trial of a capital case could rightly be described as a ‘ “farce or.a sham.” ’ [Citation.]” (Bigelow, supra, 37 Cal.3d at p. 745.)

Those circumstances are not present here. The trial judge’s error was not that he should have appointed advisory counsel to assist Goodwillie and failed to do so, but rather, that he should not have reversed a duly entered order made by another superior court judge. The nature of this error is fundamentally different from the abuse of discretion found in Bigelow. Because it would not have been error to deny Goodwillie the assistance of advisory counsel at the outset, the per se reversal standard does not apply. (Cf. People v. Crandell, supra, 46 Cal.3d at p. 865 [where trial court failed to exercise any discretion on defendant’s request for advisory counsel but a refusal to grant the request would not have been an abuse of discretion, per se reversal rule does not apply].)

Because the error in this case is not of constitutional dimension, we conclude that the proper standard by which to determine prejudice is the test announced in People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]. (People v. Crandell, supra, 46 Cal.3d at p. 865 [failure to exercise discretion on request for advisory counsel does not implicate constitutional right and Watson prejudice standard applies].) Goodwillie argues that he was prejudiced by the lack of advisory counsel because he was given only one month from the time the trial judge relieved advisory counsel to prepare for trial, and this was insufficient to allow him to “gain the legal expertise necessary to replace the assistance of counsel.” Goodwillie contends that because he was “incapable of making a legal counter-argument[,] the motion [by the prosecution to exclude expert testimony on witness identification] was granted[,] despite the fact that appellant’s defense was mistaken identity.” Goodwillie also asserts that he was prejudiced because he failed to make objections and to conduct cross-examination at trial that advisory counsel would have recommended, and because advisory counsel could have prevented him from making certain tactical errors.

It is not at all clear that the trial court would have denied the prosecutor’s motion to exclude the eyewitness identification expert’s testimony if Goodwillie had presented a different argument in opposition. Goodwillie has not established how advisory counsel would have been able to assist Goodwillie in presenting argument on that matter. Further, even if the court had denied the prosecution’s motion and the jury had heard from Goodwillie’s expert, we are unconvinced that the jury would have returned with a different result. The jury heard testimony that Goodwillie admitted he crashed the Chrysler into the other vehicles. They saw the clothing found in the apartment where Goodwillie was apprehended, marred with small holes and oil stains. The deputy who chased the perpetrator on foot got oil on his hands from climbing the fences during the chase that was similar to the oil on the clothing found with Goodwillie. There were also a number of eyewitnesses who identified Goodwillie as the perpetrator, all of whom were law enforcement officials. The evidence of Goodwillie’s guilt was strong, and Goodwillie presented no evidence that cast doubt on the eyewitness testimony. He did not present an alibi defense, nor did he present any witnesses who believed Goodwillie was not the perpetrator of the crimes that occurred that day. There is thus no reasonable likelihood that expert testimony as to the unreliability of eyewitness identification would have led to a more favorable result.

The same is true as to Goodwillie’s other contentions regarding prejudice. Goodwillie’s assertions that he was prejudiced by the lack of advisory counsel implicate the effectiveness of his own representation. All of the problems Goodwillie raises are the type of problems about which defendants wishing to represent themselves are forewarned. Goodwillie chose to represent himself despite having been warned of the potential negative consequences of doing so. Goodwillie waived his right to assert ineffective assistance of counsel claims when he requested to represent himself and signed the Lopez waiver form.

Even assuming advisory counsel would have been able to prevent Goodwillie from making some of the mistakes he raises, it is still not reasonably probable that the jury would have reached a different result. Goodwillie admitted during a postarrest interview that he committed the acts underlying many of the charges. The jury took just over an hour and a half to reach its verdicts. Under these circumstances, there is no reasonable probability that there would have been a more favorable result if Goodwillie had been assisted by advisory counsel at trial.

B. Goodwillie’s waiver of his right to be represented by counsel was made with a full understanding of the consequences of the waiver

Goodwillie maintains that neither the arraigning judge nor the trial judge adequately ascertained that he understood the consequences of representing himself without the assistance of counsel. Goodwillie first contends that at the time he signed the Lopez waiver and stated his desire to represent himself at his arraignment, the judge conducted only a “cursory inquiry into [his] ability to represent himself.” Goodwillie insinuates that because the arraigning judge was planning to appoint advisory counsel, that judge might not have been sufficiently concerned with ensuring that Goodwillie’s waiver of his right to the assistance of counsel was knowing and voluntary.

Goodwillie further contends that in light of the cursory Faretta warnings he was given when he first asserted his right to self-representation, the trial judge’s failure to provide additional Faretta warnings when the judge relieved advisory counsel on February 28, 2005, violated “the spirit and letter of Faretta v. California.” We disagree with both of Goodwillie’s contentions regarding the validity of his waiver.

1. The arraignment judge adequately advised Goodwillie about the significance and consequences of his decision to represent himself

“Both federal due process and California law require that waiver of the right to counsel, to be effective, must be with an intelligent appreciation of its consequences. [Citations.]” (People v. Mattson, supra, 51 Cal.2d at p. 790, fn. 5.) “Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ [Citation.]” (Faretta, supra, 422 U.S. at p. 835.) “The purpose of the ‘knowing and voluntary’ inquiry ... is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced. [Citation.]” (Godinez v. Moran (1993) 509 U.S. 389, 401, fn. 12 [125 L.Ed.2d 321, 113 S.Ct. 2680].)

The test for determining whether a waiver of representation is valid “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. [Citation.]” (People v. Koontz, supra, 27 Cal.4th at p. 1070.) The record in this case demonstrates that Goodwillie did understand the disadvantages of representing himself, and that he chose to do so voluntarily.

a. Goodwillie indicated he had read and understood the contents of the Lopez waiver form

The “record as a whole” in this case includes the Lopez waiver form and Goodwillie’s confirmation at the August 24, 2004 arraignment that he had discussed the charges against him and the possible sentence with his appointed counsel, and that he had read and understood the waiver form in its entirety. That form set forth most, if not all, of the significant consequences and disadvantages of self-representation. The form, which Goodwillie initialed on each line and signed at the bottom, certified that he waived his right to counsel and that he had been advised as to a number of consequences and disadvantages of waiving that right, including: (1) the lack of wisdom of representing oneself in a criminal case; (2) the penalties and additional consequences of conviction; (3) the fact that the court will not give a self-represented defendant special consideration; (4) the fact that an experienced prosecutor will oppose defendant; (5) the need to comply with all rules of criminal procedure and evidence; (6) the waiver of incompetency of counsel as an issue on appeal; (7) the court’s power to terminate self-representation for disruptive behavior; (8) the right, if indigent, to have an attorney appointed at no cost; (9) the fact that no special library privileges will be available; and (10) the fact that the court will not grant extra time for preparing the case for motions or for trial.

Goodwillie complains that the court “conducted no inquiry as to the specific matters in the waiver form, but asked appellant how much schooling he had completed, . . . whether he could read and write, and . . . whether appellant had any mental problems.” However, the record establishes that the court did more than this.

The court asked the attorney who represented Goodwillie at the arraignment whether she was confident, based on her discussions with Goodwillie, that he understood the charged offenses and the maximum punishment. She responded that she was confident that he did. The court then asked Goodwillie if he had read the entire Lopez waiver form, to which Goodwillie responded in the affirmative. The court also asked Goodwillie whether he understood “everything on [the form].” Goodwillie again answered in the affirmative. Goodwillie also told the judge that his attorney had answered all of his questions concerning the form. When the court asked Goodwillie if his attorney had informed him of the maximum punishment he was facing, Goodwillie responded, “14 years, 8 months.”

The court went through each of the charged offenses with Goodwillie. The court also asked Goodwillie about his level of education, and Goodwillie responded, “I graduated high school and two years [of] college.” Goodwillie informed the judge that he could read and write, and that he was not suffering from mental problems or “other infirmities.”

b. The arraigning judge orally advised Goodwillie about the consequences of representing himself

In addition to the advisements provided in the Lopez waiver form, the arraigning judge spoke with Goodwillie about some particular consequences of a decision to represent himself. The court said to Goodwillie, “You understand that if you’re allowed to represent yourself, you’re not going to be entitled to any special treatment. You’re going to be held to the same standards as any attorney representing himself; right?” Goodwillie indicated that he understood. The court then told Goodwillie, “You’re going to be going up against somebody from the D.A.’s office, somebody who’s an experienced attorney. Notwithstanding that, do you still wish to represent yourself?” Goodwillie again answered in the affirmative. The court also informed Goodwillie that he would not receive more law library privileges than those provided to other individuals who proceed in propria persona, and Goodwillie responded that he understood.

After all of this, the court stated on the record its findings regarding Goodwillie’s waiver of representation by counsel: “The court has made an inquiry into the depth, background, training, education. I do find that he’s made a voluntary, intelligent and understanding waiver of his right to counsel. He’s indicated on the record this afternoon he has read, in its entirety, the Lopez waiver form, he understands everything on this form. I’m granting him, at this time, the right to represent himself, and I’m executing the form.”

Based on the court’s advice regarding the potential dangers and disadvantages of self-representation and Goodwillie’s acknowledgment that he understood those consequences and that he also understood the consequences and disadvantages set forth in the Lopez waiver form, the record clearly demonstrates that Goodwillie understood the disadvantages of self-representation when he chose to represent himself.

c. Goodwillie’s choice to represent himself was made independently from the issue whether he would have advisory counsel to assist him

Goodwillie argues that his “choice” was not voluntary because he “wanted ancillary counsel.” However, Goodwillie was sufficiently informed about all of the consequences of self-representation. He was informed that he would be expected to follow all of the substantive and procedural rales without help from the judge, and that he would be facing experienced prosecutors who would not go easy on him. There was no mention made of advisory counsel at the time the court discussed with Goodwillie the Lopez waiver and the disadvantages of self-representation. Goodwillie was fully informed that the ultimate responsibility for his case would rest with him.

Goodwillie reaffirmed his decision to represent himself even after he was made aware that he would no longer be receiving any services from advisory counsel. At the February 28 readiness conference, the trial judge and Goodwillie engaged in the following colloquy:

“The Court: ... I am going to relieve Mr. Williams of this [szc] role as advisory counsel. And if you wish to continue to represent yourself, you certainly may and will be afforded that right. Is that your continuing desire to represent yourself in this case?

“The Defendant: Yes, it is.

“The Court: All right. So noted. And that’s your decision even knowing that the court is going to relieve Mr. Williams; is that correct?

“The Defendant: Yes.

“The Court: All right. So noted.”

Goodwillie asserts that the record “shows that there was no serious inquiry into whether appellant actually understood the significance and consequences of his decision when faced for the first time with the prospect of having to represent himself without the assistance of ancillary counsel.” He further argues that “[t]he lack of any Faretta warnings on the date that ancillary counsel was removed was aggravated by the cursory nature of the Faretta inquiry several months earlier at the initial arraignment.” As we have already discussed, at the arraignment, the court sufficiently advised Goodwillie of the significance and consequences of a decision to represent himself. There was no need for the trial court to re-advise Goodwillie or to seek an additional waiver.

2. The trial court was not required to provide renewed Faretta warnings to Goodwillie

Goodwillie contends that the situation in this case is analogous to that in People v. Hall (1990) 218 Cal.App.3d 1102 [267 Cal.Rptr. 494], in which “it was held to have been error when renewed Faretta warnings were not given at a late stage of the proceedings.” However, the issue in Hall revolved around the trial court’s failure to advise the defendant of the disadvantages of self-representation at a parole revocation/sentencing hearing that occurred two years after the defendant had been tried and convicted. (Hall, supra, 218 Cal.App.3d at p. 1106.) Hall stands for the rule that “a Faretta hearing must be held on the record to advise the defendant of the disadvantages of not being represented by counsel and to establish a knowing and intelligent waiver of the right to counsel” before a criminal defendant may represent himself at a “deferred sentencing hearing.” (Ibid.)

Although a parole revocation/sentencing hearing is technically part of the original criminal proceeding, it is distinct in substance. The same cannot be said here. The judge who arraigned Goodwillie adequately advised him of his right to counsel and established that he was waiving that right knowingly and voluntarily. No further waiver was necessary. To rule otherwise would impose on the trial court a duty to give Faretta warnings prior to every hearing or proceeding in cases in which the defendant is representing himself. The Sixth Amendment does not require such a rule: “ ‘While it is true that the Sixth Amendment right to counsel applies at all critical stages of the prosecution, including the sentencing stage, it does not follow that once the assistance of counsel in court has been competently waived, a new waiver must be obtained at every subsequent court appearance by the defendant. A competent election by the defendant to represent himself and to decline the assistance of counsel once made before the court carries forward through all further proceedings in that case unless appointment of counsel for subsequent proceedings is expressly requested by the defendant or there are circumstances which suggest that the waiver was limited to a particular stage of the proceedings.’ [Citation.]” (People v. Crayton (2002) 28 Cal.4th 346, 362 [121 Cal.Rptr.2d 580, 48 P.3d 1136] (Crayton).)

C. The trial court did not violate Goodwillie’s Sixth and Fourteenth Amendment rights by excluding the testimony of an eyewitness identification expert

Goodwillie contends that the trial court violated his due process and Sixth Amended rights by limiting his ability to present his defense. During trial, the court granted the prosecutor’s motion to exclude proposed testimony by an eyewitness identification expert whom Goodwillie intended to call as a witness to raise reasonable doubt as to the various witnesses’ identifications of him as the perpetrator. Goodwillie asserted at trial, and asserts on appeal, that “in relation to the five charges stemming from the car chase there was no corroborating evidence” and that “the evidence of his guilt rested entirely on eyewitness testimony.”

“A defendant has the general right to offer a defense through the testimony of his or her witnesses [citation], but a state court’s application of ordinary rules of evidence—including the rule stated in Evidence Code section 352—generally does not infringe upon this right [citations].” (People v. Cornwell (2005) 37 Cal.4th 50, 82 [33 Cal.Rptr.3d 1, 117 P.3d 622] (Cornwell).) “Although the high court in Chambers [v. Mississippi (1973) 410 U.S. 284, 302-303 [35 L.Ed.2d 297, 93 S.Ct. 1038]] determined that the combination of state rules resulting in the exclusion of crucial defense evidence constituted a denial of due process under the unusual circumstances of the case before it, it did not question ‘the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures.’ [Citation.]” (Cornwell, supra, 37 Cal.4th at p. 82.)

The leading California case allowing the introduction of expert testimony concerning eyewitness identification is People v. McDonald (1984) 37 Cal.3d 351 [208 Cal.Rptr. 236, 690 P.2d 709] (McDonald), overruled in part in People v. Mendoza (2000) 23 Cal.4th 896, 914 [98 Cal.Rptr.2d 431, 4 P.3d 265]). (People v. Jones (2003) 30 Cal.4th 1084, 1112 [135 Cal.Rptr.2d 370, 70 P.3d 359] (Jones).) In McDonald, the Supreme Court concluded that “[T]he decision to admit or exclude expert testimony on psychological factors affecting eyewitness identification remains primarily a matter within the trial court’s discretion; . . . ‘we do not intend to “open the gates” to a flood of expert evidence on the subject.’ [Citation.] We expect that such evidence will not often be needed, and in the usual case the appellate court will continue to defer to the trial court’s discretion in this matter. Yet deference is not abdication. When an eyewitness identification of the defendant is a key element of the prosecution’s case but is not substantially corroborated by evidence giving it independent reliability . . . , it will ordinarily be error to exclude that testimony.” (McDonald, supra, 37 Cal.3d at p. 377, fn. omitted, italics added.) The Supreme Court later restated the rule expressed in McDonald as follows: “Exclusion of the expert testimony is justified only if there is other evidence that substantially corroborates the eyewitness identification and gives it independent reliability.” (Jones, supra, 30 Cal.4th at p. 1112, citing McDonald, supra, 37 Cal.3d at p. 376 and People v. Sanders (1995) 11 Cal.4th 475, 509 [46 Cal.Rptr.2d 751, 905 P.2d 420] (Sanders).)

The trial court’s decision to exclude expert testimony on the issue of eyewitness identification did not violate Goodwillie’s right to due process. Goodwillie has not established that the proffered expert testimony would have had significant probative value in this case. (See Cornwell, supra, 37 Cal.4th at p. 82 [excluded evidence was not so vital to the defense that due process principles required its admission].) Specifically, the trial court’s ruling did not prevent Goodwillie from presenting a defense that the eyewitnesses were mistaken in their identification of him. He was able to cross-examine the eyewitnesses and challenge the accuracy of their identifications. Further, the court instructed the jurors as to the factors they could consider when weighing the credibility of eyewitness testimony. Most important, there were at least four witnesses who positively identified Goodwillie as the driver of the silver Chrysler on the day in question. (See Sanders, supra, 11 Cal.4th at p. 509 [contrasting “strong and unequivocal” eyewitness testimony in that case, consisting of three eyewitnesses who identified the defendant in lineups and at trial and a fourth who was “ ‘pretty certain’ ” of her identification of the defendant at a videotape lineup and positive at trial, with equivocal eyewitness identification in McDonald, which included one eyewitness who asserted that the defendant was definitely not the perpetrator].)

There was also other evidence in this case that corroborated the eyewitness testimony, thus meeting the McDonald standard. (Jones, supra, 30 Cal.4th at p. 1112.) Goodwillie confessed to Detective Escobedo that he had been driving the silver Chrysler and that he had attempted to crash through the police barrier because at that point he realized the car he was driving was probably stolen and he did not want to go to jail. Goodwillie also admitted to Escobedo that when he saw the lights of the patrol car and heard the sirens, he attempted to escape. Goodwillie minimizes the impact of this evidence, arguing that “there was no independent evidence to corroborate those identifications [made by witnesses to the car chase], except Detective Escobedo’s testimony that appellant admitted crashing the Chrysler to him.” Goodwillie fails to recognize that his admitting the acts underlying the crimes charged constitutes strong corroborating evidence that gives the eyewitness identifications independent reliability.

There was additional independent corroborating evidence presented in this case as well. Goodwillie was apprehended shortly after the driver of the Chrysler fled the scene by jumping over fences and running through a mobilehome park. At the time of his apprehension, Goodwillie had numerous scratches on his arms and legs. Deputy Marquez, who had been pursuing the suspect and had jumped over the same fences as the