The PEOPLE, Plaintiff and Respondent, v. Lennie Darrold SIMS, Defendant and Appellant.
Defendant and appellant Lennie Darrold Sims appeals from the judgment entered following his conviction for armed robbery. For the reasons stated below, we reverse that judgment.
This appeal involves the critical distinction between two frequently-brought criminal trial motions: One for self-representation under Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562; and the other for substitution of counsel on the ground of incompetent representation under People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44.
In this case, the appellant requested to represent himself, but did so on the ground that his attorney was not competent. The trial court inadvertently believed that defendant had in fact brought a Marsden motion. It denied the Faretta motion as untimely and eventually conducted a Marsden hearing, but never considered the factors required in deciding an untimely Faretta motion.
A motion for self-representation made on the ground that counsel is not competent cannot be viewed as a motion to substitute counsel under Marsden. Where the defendant has not asked for different counsel but instead seeks to represent himself, the court is obligated to treat the motion as one under Faretta. When the Faretta motion is deemed untimely, the trial court must still conduct an inquiry as mandated by People v. Windham (1977) 19 Cal.3d 121, 128–129, 137 Cal.Rptr. 8, 560 P.2d 1187 and make an adequate record for meaningful appellate review. Under these circumstances, when a defendant requests to represent himself because he is dissatisfied with counsel's representation, the court may—but need not—also conduct a hearing under Marsden.
In short, it is the relief requested (self-representation) and not the reasons underlying the motion (dissatisfaction with counsel) which govern the trial court's responsibilities when considering such motions.
In the instant case, the court did not consider the relief requested, and consequently failed to hold the appropriate hearing. For this reason, the matter is reversed.
FACTS AND PROCEDURAL HISTORY
Defendant and appellant Lennie Darrold Sims (Sims) was charged with six counts of armed robbery (Pen.Code, § 211), and one count of assault with a deadly weapon (Pen.Code, § 245, subd. (a)(2)), in an information filed on July 2, 1991. The assault and two of the robbery counts were dismissed on September 2, 1991.
The four remaining counts arose from three armed robberies during the month of February 1991 at various business locations. The first count alleged that Sims robbed a McDonalds' employee at a drive-up window. The second and third counts alleged that he robbed two clothing store employees and the fourth count alleged that he robbed a Tastee Freeze store.
The McDonalds' employee and an eye witness positively identified Sims as the robber and he was convicted on that count. The other victims and witnesses were unable to make positive identifications and he was acquitted of the other three counts. The jury also found true the allegation that Sims had used a firearm within the meaning of section 12022.5. Sims was given a three-year sentence for the armed robbery conviction and a four-year enhancement because of the firearm use.
Sims raises numerous procedural grounds on appeal, but we need only consider one: that it was error to deny his Faretta motion for self-representation. As discussed at length below, we conclude that Sims is correct and reverse on that ground.
THE FARETTA HEARINGS
Sims' case was set for trial on February 19, 1992, as number zero out of ten. Sims was represented by an attorney who was absent that day, but stand-in counsel from her office was present. The stand-in attorney told the court that Sims wished to represent himself, at which time the court asked the prosecutor to leave. Counsel then told the court Sims had pro per status on another pending felony matter, that he had done college level work and was able to understand legal concepts and discuss them in fairly sophisticated terms.
The court determined the request to be untimely since Sims was arraigned the previous July and the matter was set for trial that day. Sims complained that his attorney had mishandled his defense and the court said it believed Sims was really making a Marsden motion to obtain a new lawyer.
The court then asked the stand-in counsel when Sims' attorney would be back. The stand-in attorney stated that he had been asked to announce ready and put it over until February 24 or 25. The court said, “we will announce the matter ready February 24.” Sims said he was not ready, objected to the proceedings in their entirety, and repeated his desire to represent himself.
The court again denied the Faretta motion and put the matter over to February 24, as number five of ten, at which time the court would inquire into the attorney's competency, as per Marsden.
On February 24, with Sims' trial counsel present, the court did not take up the issue of her competency but instead heard further argument on the Faretta motion.
Sims admitted that he had been representing himself in another pending case for some months already. The court noted that Sims “knew all about pro per status” and again denied the Faretta motion because he had waited too long.1 The court set the matter for trial on February 26, when Sims refused to waive time. On February 26, the matter was continued to March 2 because of witness unavailability. The trial began on March 2, 1992.
On March 5, 1992, one day after the defense case began, the court held a Marsden hearing into the competency of Sims' attorney. Sims began that hearing by asserting a complete breakdown in the attorney-client relationship. After Sims gave several specific reasons why he believed his lawyer was not competent, the court refused to permit substitution of counsel.
THE FARETTA MOTION WAS IMPROPERLY DENIED
In Faretta v. California, supra, 422 U.S. 806, 836, 95 S.Ct. 2525, 2541, the United States Supreme Court held that a defendant in a state criminal trial has a federal constitutional right under the Sixth and Fourteenth Amendments to represent himself without counsel if he voluntarily and intelligently chooses to do so. That right is among those “basic to our adversary system of criminal justice,” as much a part of due process of law as the accused's right to notice of the charges, the right to call witnesses and to confront witnesses against him. (Id., at p. 818, 95 S.Ct. at p. 2532.) Even though the defendant's choice may work to his detriment, it is a choice which must be honored out of “ ‘that respect for the individual which is the lifeblood of the law.’ ” (Id., at p. 834, 95 S.Ct. at p. 2541, quoting Illinois v. Allen (1970) 397 U.S. 337, 350–351, 90 S.Ct. 1057, 1064, 25 L.Ed.2d 353 (Brennan, J., conc.).)
The Faretta court, however, left unanswered the question of when that right must be asserted. (People v. Windham, supra, 19 Cal.3d 121, 126, 137 Cal.Rptr. 8, 560 P.2d 1187; People v. White (1992) 9 Cal.App.4th 1062, 1071, 12 Cal.Rptr.2d 122.)
The Windham court, considering a mid-trial motion for self representation, held that the defendant must assert the right “within a reasonable time prior to the commencement of trial.” (People v. Windham, supra, 19 Cal.3d at p. 128, 137 Cal.Rptr. 8, 560 P.2d 1187.) The Windham court left unresolved the calculation of a “reasonable time prior to the commencement of trial.” (People v. Burton (1989) 48 Cal.3d 843, 852, 258 Cal.Rptr. 184, 771 P.2d 1270.)
The Windham court cautioned that its “reasonable time” requirement should not be used to limit a defendant's constitutional rights, but also warned that a defendant should not misuse those rights to unjustifiably delay or obstruct his trial. (People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5, 137 Cal.Rptr. 8, 560 P.2d 1187.) “For example, a defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request. In such a case the motion for self-representation is addressed to the sound discretion of the trial court․” (Ibid.)
When an untimely request for self-representation is made, “the trial court shall inquire sua sponte into the specific factors underlying the request thereby ensuring a meaningful record in the event that appellate review is later required. Among other factors to be considered by the court assessing such requests made after the commencement of trial are the quality of counsel's representation of the defendant, 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. Having established a record based on such relevant considerations, the court should then exercise its discretion and rule on the defendant's request.” (People v. Windham, supra, 19 Cal.3d at pp. 128–129, 137 Cal.Rptr. 8, 560 P.2d 1187, fn. omitted.)
Sims contends that the court violated his Faretta rights on two grounds: 1) the motion was timely, requiring that it be granted; and 2) even if it were untimely, the court failed to consider the factors set forth in Windham, thus mandating reversal. Because we believe that appellant is correct as to the latter, we need not decide whether his motion was timely or not.
The California Supreme Court has consistently, and recently, reaffirmed adherence to the rule that a trial court considering an untimely Faretta motion must both consider the various factors set forth in Windham and make an adequate record for meaningful appellate review. (See People v. Cummings (1993) 4 Cal.4th 1233, 1320, 18 Cal.Rptr.2d 796, 850 P.2d 1: [trial court “must consider” the Windham factors and establish a record based on those factors before exercising its discretion]; People v. Hardy (1992) 2 Cal.4th 86, 195, 5 Cal.Rptr.2d 796, 825 P.2d 781; People v. Frierson (1991) 53 Cal.3d 730, 742, 280 Cal.Rptr. 440, 808 P.2d 1197; People v. Burton, supra, 48 Cal.3d 843, 853, 258 Cal.Rptr. 184, 771 P.2d 1270; People v. Hamilton (1988) 45 Cal.3d 351, 368–369, 247 Cal.Rptr. 31, 753 P.2d 1109.)
While in each of those cases the court upheld the denial of a motion for self-representation under Faretta, it was clear that the trial court had considered the relevant factors under Windham and made an adequate record. In Frierson, for example, the Supreme Court noted that “[t]he court thoroughly investigated the quality of counsel's representation, the reasons for the request, and the expected delay.” (People v. Frierson, supra, 53 Cal.3d at p. 742, 280 Cal.Rptr. 440, 808 P.2d 1197.) In Burton, the trial court “inquired into the basis for defendant's dissatisfaction with counsel, counsel's experience and level of preparation for trial, and defendant's need for continuance. The court gave defendant an unlimited opportunity to explain why he felt he should represent himself.” (People v. Burton, supra, 48 Cal.3d at p. 854, 258 Cal.Rptr. 184, 771 P.2d 1270; see also People v. Cummings, supra, 4 Cal.4th at p. 1322, 18 Cal.Rptr.2d 796, 850 P.2d 1: [“Clearly the court did consider the relevant factors․”]; People v. Hamilton, supra, 45 Cal.3d at p. 369, 247 Cal.Rptr. 31, 753 P.2d 1109: [denial of Faretta motion upheld where the trial court “considered the Windham factors․”].)
We find this case most analogous to People v. Herrera (1980) 104 Cal.App.3d 167, 163 Cal.Rptr. 435, where the defendant moved to represent himself the morning of trial. Because the defendant raised an insanity defense, the court stated “․ if he says he is crazy ․ he can't represent himself,” then denied the motion without further discussion. The trial was then continued two more days because no court reporter was available.
Even if the motion for self-representation were untimely,2 the court said that it was “clear from the record the trial court made no attempt to comply with the mandate of the Windham court․ [¶] Without such a record we can only speculate that a consideration of these factors may well have demonstrated to the trial judge reasons to exercise his discretion to allow Herrera to proceed in propria persona.” (People v. Herrera, supra, 104 Cal.App.3d at p. 174, 163 Cal.Rptr. 435.) The record showed that Herrera had conceived a well-considered defense and felt he was receiving poor representation, that the trial would be short, that the court could not proceed on that day because there was no court reporter, that there was no evidence that Herrera had ever made past use of a Faretta motion as a device to delay, and that he did not request a continuance. (Ibid.)
In the matter before us, when Sims moved to represent himself on February 19, the trial court ruled that the motion was untimely. After Sims complained that he was being poorly represented, the court construed the motion as one for different representation under People v. Marsden, supra, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44. After being informed by stand-in counsel Sims' trial lawyer was absent and wanted the matter put over until her return, the court scheduled a hearing on a Marsden motion for February 24. Sims then repeated his request for self-representation.
On February 24, however, the court did not inquire into the reasons for Sims' dissatisfaction with counsel as a prelude to a Marsden hearing. Instead, it heard renewed argument on Sims' Faretta motion and again denied the request for self-representation as untimely. At no time did the court conduct the sua sponte inquiry required by Windham. The Marsden hearing which the court felt Sims wanted was not conducted until March 5, three days after the trial started and after the defense had begun its case.
Furthermore, a defendant who invokes his Faretta right to self-representation because he is unhappy with appointed counsel should not be confused with a defendant who moves under Marsden to replace appointed counsel on the same ground. A Marsden hearing for substitution of counsel requires the trial court to allow the defendant a full and complete opportunity to specify the reasons for his dissatisfaction and, where appropriate, for the court to make further inquiry on its own. The grant or denial of such a motion is within the court's discretion, depending on whether the court reasonably found counsel was acting competently and diligently and whether defendant failed to show his right to counsel would be substantially impaired if the motion were denied. (People v. Frierson, supra, 53 Cal.3d at p. 741, 280 Cal.Rptr. 440, 808 P.2d 1197; People v. Burton, supra, 48 Cal.3d at pp. 855–856, 258 Cal.Rptr. 184, 771 P.2d 1270.)
“․ [T]he two motions are fundamentally different, one raising the question of defendant's competency to waive his right to counsel, and the other raising the question of existing counsel's competency.” (People v. Burton, supra, 48 Cal.3d 843, 855, 258 Cal.Rptr. 184, 771 P.2d 1270, citing to People v. Joseph (1983) 34 Cal.3d 936, 944, fn. 3, 196 Cal.Rptr. 339, 671 P.2d 843.) The Burton court considered an appeal by a defendant who alleged error when the trial court failed to conduct a Marsden hearing after defendant made a Faretta motion on the ground of dissatisfaction with counsel. “Although defendant expressed dissatisfaction with his attorney, he made repeated, explicit requests to represent himself and gave reasons why he thought he would be more persuasive and effective than counsel. He never suggested he would like a different attorney. [Citation.] Nor is it the rule that whenever a defendant makes a motion to represent himself on the basis of dissatisfaction with counsel, the court automatically should inquire whether he would like to make a motion for substitution of counsel. [Citation.]” (Ibid.) “ ‘A request for self-representation does not trigger a duty to conduct a Marsden inquiry [citation] or to suggest substitution of counsel as an alternative.’ ” (People v. Clark (1992) 3 Cal.4th 41, 105, 10 Cal.Rptr.2d 554, 833 P.2d 561, quoting People v. Crandell (1988) 46 Cal.3d 833, 854–855, 251 Cal.Rptr. 227, 760 P.2d 423.)
The trial court was thus not obligated to additionally conduct a Marsden hearing because Sims made a Faretta motion based on his lawyer's alleged incompetence (People v. Cummings, supra, 4 Cal.4th at pp. 1319–1320, fn. 60, 18 Cal.Rptr.2d 796, 850 P.2d 1.) And even though the reason proffered for Sims' Faretta motion overlapped with the reason underlying a Marsden motion, Sims did not move for substitution of counsel. He never requested that new counsel be appointed but did explicitly and repeatedly ask to represent himself. As pointed out earlier, it is the relief requested and not the reasons proffered which guide the court in deciding whether to abide by the requirements of either Windham or Marsden.
Nor does the record contain enough information as to the various Windham factors for us to conclude that there were sufficient reasons for the court to exercise its discretion to deny the request. That was the situation before the court in People v. Perez (1992) 4 Cal.App.4th 893, 6 Cal.Rptr.2d 141.
In Perez, the trial court properly denied defendant's last-minute Faretta motion as untimely. Even though the trial court did not specifically make the further inquiry required by Windham, there were sufficient reasons on the record to support the lower court's ruling. The trial court was aware of the quality of the representation defendant was receiving since his Marsden motion had been denied the day before, he had previously made three motions to substitute counsel, trial was about to commence and granting the motion would have required a continuance. Moreover, defendant's failure to make the Faretta motion the day before in connection with his Marsden motion supported the implied finding that defendant's request was merely a delay tactic. (People v. Perez, supra, 4 Cal.App.4th at pp. 904–905, 6 Cal.Rptr.2d 141.)
Thus, even though the trial court did not specifically make inquiry into the Windham factors, it was aware of them and commented on them in denying the motion as untimely. (People v. Perez, supra, 4 Cal.App.4th at pp. 900–902, 904–905, 6 Cal.Rptr.2d 141.)
In so holding, however, the Perez court cautioned that it did not intend to relieve the trial courts from compliance with Windham. “Where, as here, however, the reasons for the denial of the motion are absolutely clear on the record, we conclude that there will be no detrimental effect on the justice system for the appellate court to draw the inferences necessarily implied by the court's ruling.” (People v. Perez, supra, 4 Cal.App.4th at p. 905, fn. 10, 6 Cal.Rptr.2d 141, italics added.)
Instead, the record here is ambiguous. The trial court denied Sims' motion for the sole reason that it was untimely. The court then chose to style the motion as one for substitution of counsel under People v. Marsden, supra, and did not hold a Marsden hearing until nearly two weeks later, more than halfway through trial.
Even if we could imply from the court's denial of Sims' Marsden motion that Sims was properly represented, that leaves several other questions posed by the Windham court unanswered. For instance, the record is barren as to any consideration by the court regarding the length and stage of the proceedings, whether or to what degree the trial might be continued as a result of granting the motion, and whether Sims had a prior proclivity to substitute or relieve counsel and whether he was doing so then for the sole purpose of delay.3 At the time of Sims' original Faretta motion, it was apparent that the trial would be continued at least five days since his lawyer was not present and had asked her stand-in to request a continuance. The record does not indicate that the court considered that factor or any others in passing upon Sims' motion.
The denial of a timely Faretta motion requires reversal per se. (People v. Joseph, supra, 34 Cal.3d 936, 945–948, 196 Cal.Rptr. 339, 671 P.2d 843.) The court in People v. Hernandez (1985) 163 Cal.App.3d 645, 652–653, 209 Cal.Rptr. 809, implied that the same is true when the trial court fails to make the inquiry required by Windham in considering an untimely motion for self-representation. “Such failure prevented the trial court from making a reasoned decision with respect to the timeliness and appropriateness of the motion. It also prevented this court from making a meaningful review of the trial court decision.” (Id., at p. 653, 209 Cal.Rptr. 809.)
While we have been careful to point out the differences between a Marsden hearing for substitution of counsel and a Faretta motion for self-representation, we take note that the failure to conduct the proper inquiry when a Marsden motion is made is treated as prejudicial per se. (People v. Marsden, supra, 2 Cal.3d at p. 126, 84 Cal.Rptr. 156, 465 P.2d 44; People v. Hill (1983) 148 Cal.App.3d 744, 755, 196 Cal.Rptr. 382.) As the Hernandez court suggested, that same principle is applicable here. (People v. Hernandez, supra, 163 Cal.App.3d at pp. 652–653, 209 Cal.Rptr. 809.) 4
In so holding, we decline to follow the Fourth District's recent decision in People v. Rivers (1993) 20 Cal.App.4th 1040, 25 Cal.Rptr.2d 602. The defendant in Rivers was represented by counsel through the guilt phase of trial and convicted by the jury. Before a bifurcated trial on the validity of prior convictions began, Rivers asked to represent himself. The trial court denied the Faretta motion as untimely, made no inquiry under Windham, and left a record devoid of evidence which might allow the appellate court to show that if the trial court had exercised its discretion and denied the motion, it would not have been an abuse of discretion. (Id., at pp. 1048–1049, 25 Cal.Rptr.2d 602.)
Despite this, the Fourth District relied on People v. Crandell (1988) 46 Cal.3d 833, 863–866, 251 Cal.Rptr. 227, 760 P.2d 423 and concluded that a harmless error standard should apply, affirming the conviction. (People v. Rivers, supra, 20 Cal.App.4th at p. 1050, 25 Cal.Rptr.2d 602.)
The Crandell court considered the trial court's refusal to appoint advisory counsel for a pro. per. defendant—a nonconstitutional right—based on the mistaken belief that no such right existed. Even though the trial court abused its discretion by refusing to exercise it, the Crandell court applied a harmless error standard since the record contained sufficient facts to show that if the trial court had exercised its discretion and denied the motion, it would not have been an abuse of discretion to do so. (People v. Crandell, supra, 46 Cal.3d at p. 864, 251 Cal.Rptr. 227, 760 P.2d 423.)
In so holding, the Crandell court had to distinguish the facts from those present in People v. Bigelow (1984) 37 Cal.3d 731, 209 Cal.Rptr. 328, 691 P.2d 994, where the trial court also mistakenly believed that the pro. per. defendant had no right to advisory counsel and therefore refused to exercise its discretion and rule on the motion. In that case, the record clearly contained enough information for the Supreme Court to conclude that if the trial court had denied the motion, it would have been an abuse of discretion to do so. (Id., at pp. 744–745, 209 Cal.Rptr. 328, 691 P.2d 994.) Thus, reversal per se was warranted. (Ibid.)
The Bigelow court alternatively held that reversal per se was warranted because it was impossible to assess the impact of any prejudice from such an error. (People v. Bigelow, supra, 37 Cal.3d at pp. 744–745, 209 Cal.Rptr. 328, 691 P.2d 994.) In doing so, the court analogized to cases where a timely Faretta motion is denied. (Id., at p. 745, 209 Cal.Rptr. 328, 691 P.2d 994.)
Bigelow and Crandell therefore stand for the proposition that when the record shows it would have been an abuse of discretion to deny a motion, the court's failure to rule on the motion is an abuse of discretion which is reversible per se. The Rivers court ignored this critical distinction and applied the Crandell rule of harmless error even though the record contained no information to allow the court to determine whether or not it would have been an abuse of discretion to deny the defendant's Faretta motion.
As we noted above, if the record in this case had contained enough information for us to conclude that it would not have been an abuse of discretion to deny Sims' Faretta motion, we would have followed the rule of People v. Perez, supra, 4 Cal.App.4th at pp. 904–905, 6 Cal.Rptr.2d 141 and affirmed on that basis. Instead, we are unable to determine whether an abuse of discretion would have occurred, thus rendering the Crandell rule inapplicable.
In addition, we are unable to determine the impact of the prejudice to Sims and, as in Bigelow, a rule of per se reversal is warranted.5
For the reasons stated above, the judgment of conviction is set aside and reversed.
I respectfully dissent from my colleagues' principled and well-stated analysis. First, the trial judge complied with the procedural rule articulated by the California Supreme Court in People v. Windham (1977) 19 Cal.3d 121, 127–128, 137 Cal.Rptr. 8, 560 P.2d 1187 to sua sponte consider the specific factors underlying defendant's belated self-representation request. Second, even if the trial judge failed to abide by the procedural rule imposed by Windham to sua sponte inquire into the reasons for the belated self-representation request, reversal would not be warranted. The United States Constitution as interpreted in Faretta v. California (1975) 422 U.S. 806, 835–836, 95 S.Ct. 2525, 2541–2542, 45 L.Ed.2d 562 does not require that a sua sponte inquiry be made as to the reasons for an untimely request for self-representation as posited by the California Supreme Court in Windham. Accordingly, such an error is subject to the requirement that prejudice be shown by the defendant as required by article VI, section 13 of the California Constitution as interpreted in People v. Sharp (1972) 7 Cal.3d 448, 462–463, 103 Cal.Rptr. 233, 499 P.2d 489 and People v. Watson (1956) 46 Cal.2d 818, 836–837, 299 P.2d 243.
Defendant was arrested on March 20, 1991, in connection with an aggravated kidnapping charge. His preliminary hearing in this case was held in the Municipal Court for the Pasadena Judicial District on June 17, 1991—nearly three months after his arrest. At all times in the municipal court, defendant was represented by counsel. The record is devoid of any indication defendant requested to represent himself at any time during proceedings in the municipal court. His deputy public defender cross-examined witnesses and argued that the charges should be dismissed. The magistrate granted the dismissal motion as to two of the charges but did not as to the remainder of the felony complaint. On July 2, 1991, defendant was arraigned in superior court and consented to representation by a deputy public defender. She filed a written dismissal motion pursuant to Penal Code section 995.1 The motion was granted as to three of the counts in the information but denied as to three other charges. She also filed a lengthy written discovery motion.
On February 19, 1992, after several continuances, the cause was called for trial. At that time, defendant for the first time raised the issue of dissatisfaction with his counsel and indicated he wanted to represent himself. His deputy public defender, Ellen Blumenthal, was not present. However, another deputy public defender, William McCallister, stood in for her. The following transpired: “Mr. McCallister: Mr. Sims has informed me that he wishes to go pro. per., and we have had a short, but fairly cordial, conversation on that point. [¶] He has been granted, he tells me, pro. per. status on a 209 charge downtown pending for trial there. [¶] Apparently, he has been pro. per. on that case for over a year, and he has done college level work. He is a bright man. [¶] He talked to me in fairly sophisticated terms about legal concepts. He seems to understand where he stands. I think he has the mental wherewithal. [¶] The Court: I appreciate your pitch, Mr. McCallister, but I need to address Mr. Sims. [¶] Mr. McCallister: Yes, but I would tell you if I thought he wasn't competent. [¶] The Court: Mr. Sims, the bottom line, you know you have a right to represent yourself. There are limits on that right and one limit is that your request for pro. per. status be timely. [¶] The problem here is that you were arraigned July 2, 1991. Today this matter is set for trial. I don't think that your request for pro. per. is timely, sir. You can't wait until the eve of trial to obtain pro. per. status. [¶] The Defendant: Well, your honor, with all due respect, Miss Blumenthal has mismanaged my case and her investigators have mismanaged my case so bad, and I am surprised I'm still here in this courtroom on these bogus charges. [¶] I feel the only way I can free myself of these charges is to represent myself. I am the one who has to do the time and Miss Blumenthal couldn't care less. She has too much work to do. My case is at the bottom of her priorities. [¶] The Court: Well, it sounds to me you are making what is called a Marsden motion. You are asking that the public defender be removed from the case because of incompetent representation. [¶] When is Miss Blumenthal back? [¶] Mr. McCallister: I believe she will be with us next week. [¶] The Court: As in Monday? [¶] Mr. McCallister: Well, what she had me do with this case was to announce it ready and put it over either to 2–24 or 2–25, which I think is next week. [¶] The Court: I will tell you what we will do. We will announce the matter ready February 24. [¶] The Defendant: I object. We are not ready. I object to all these proceedings and I still wish to represent myself in pro. per. [¶] The Court: I think your wishes are very clear, Mr. Sims, but I am going to deny your request of pro. per. status on the grounds of the timeliness. [¶] We will put the matter over to February 24, on the issue of the incompetence of public defender representation. This matter will be five of ten that day. February 24 is the next date. [¶] On that date, Mr. Sims, I will hear in more detail your complaints about Miss Blumenthal, and I will hear her response. [¶] The Defendant: I would like to state for the record that I have a conflict of interest with the public defender's office in general, not just Miss Blumenthal, for the record. [¶] The Court: The record will be clear about that. February 24, five of ten.” Defendant's request for self-representation was first raised on the day the case was set for trial, virtually 11 months to the day after he was arrested and 7 months, 17 days after the information was filed.
On February 24, 1992, the date to which the commencement of trial was trailed, a further hearing was held in connection with defendant's request to proceed in propria persona. Defense counsel, Ms. Blumenthal, indicated: defendant still desired “to go pro. per. in this matter”; she had “advised him against pro. per. status”; and he felt he was capable of representing himself. The court stated: “As I told Mr. Sims last time he was here, the request is untimely. Mr. Sims was arraigned in this court July 2, 1991, and now at time of trial he requests pro. per. status. It is not timely.” After Ms. Blumenthal indicated she had not announced ready for trial, the court corrected her by noting that her fellow deputy public defender, Mr. McCallister, had appeared on February 19, 1992, and stated that the defense was in fact ready for trial. Ms. Blumenthal then indicated that she was “prepared to announce ready.” The following then transpired: “The Court: I am leaving it five of ten, because Mr. McCallister did announce ready. If he didn't, he indicated you were ready for trial, but were absent from the court. The last date in this matter is March second as things currently stand. [¶] All right. Now let's hear from you, Mr. Sims. [¶] The Defendant: I want to go pro. per. [¶] The Court: I am going to deny that request. [¶] The Defendant: Well, I object to your ruling and I want a continual objection throughout the trial. [¶] The Court: One will do it. [¶] The Defendant: Every time I speak I'm going to object, because I feel it is violation of my constitutional right to self representation. [¶] I didn't ask to be indicted on these fraudulent charges. The District Attorney had an arrest warrant back a long time ago, and they waited two or three months, or a couple of months to wait to come to court. [¶] The Court: Mr. Sims. [¶] The Defendant: I have no control over my case. [¶] The Court: You have a voice and you know how to talk. [¶] The Defendant: The public defender's office—The court was handling my case, but I realize I have to handle my case myself to make sure there isn't any injustice taken upon me. [¶] The Court: You are pro. per. in another case. A kidnapping case? [¶] The Defendant: Yes, sir. [¶] The Court: How long have you been a pro. per. in that case? [¶] The Defendant: I don't know. [¶] The Court: Months? [¶] The Defendant: Months. [¶] The Court: So you knew all about pro. per. status? [¶] The Defendant: Yes. [¶] The Court: You waited too long here, sir, your request is untimely. [¶] Let's trail the matter to February 27th. [¶] Ms. Blumenthal: All right. [¶] The Court: We will trail the matter. [¶] The Defendant: I ain't waiving no time.” In other words, the second time defendant's request for pro se representation was denied, the cause had been called for trial and had trailed for five days. On February 26, 1992, the seventh of the 10 possible days upon which the trial could start, defendant requested that the case trail until March 2, 1992, because of witness unavailability. On March 2, the last day of the 10–day trailing period specified in section 1382 upon which the case could go to trial, jury selection actually commenced.
To begin with, the trial court did offer defendant a hearing at which he was able to explain that he should be permitted to represent himself at such a late date. In Windham, the California Supreme Court set forth the proper procedure for evaluating whether a request to proceed in propria persona was timely as follows: “We hold therefore that an order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial. Accordingly, when a motion to proceed pro se is timely interposed, a trial court must permit a defendant to represent himself upon ascertaining that he [or she] has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be․ However, once a defendant has chosen to proceed to trial represented by counsel, demands by such defendant that he [or she] be permitted to discharge his [or her] attorney and assume the defense himself [or herself] shall be addressed to the sound discretion of the court.” (People v. Windham, supra, 19 Cal.3d at pp. 127–128, 137 Cal.Rptr. 8, 560 P.2d 1187, fn. omitted.)
First, the trial court complied with its obligation to conduct the foregoing inquiry described in Windham.2 Defendant's request to represent himself was untimely. As the trial judge correctly noted, one of the limits on a request for pro se status is that it must be timely. When the trial judge stated, “You can't wait until the eve of trial to obtain pro. per. status” he was echoing the words of well-established and oft-repeated decisional authority. (People v. Clark, supra, 3 Cal.4th at pp. 99–100, 10 Cal.Rptr.2d 554, 833 P.2d 561; People v. Frierson, supra, 53 Cal.3d at p. 742, 280 Cal.Rptr. 440, 808 P.2d 1197; People v. White (1992) 9 Cal.App.4th 1062, 1074, 12 Cal.Rptr.2d 122; People v. Perez (1992) 4 Cal.App.4th 893, 903, 6 Cal.Rptr.2d 141; People v. Ngaue (1991) 229 Cal.App.3d 1115, 1123, 280 Cal.Rptr. 757; People v. Wilkins (1990) 225 Cal.App.3d 299, 303, 275 Cal.Rptr. 74; People v. Hernandez (1985) 163 Cal.App.3d 645, 651, fn. 4, 209 Cal.Rptr. 809; People v. Hill (1983) 148 Cal.App.3d 744, 757, 196 Cal.Rptr. 382; People v. Morgan (1980) 101 Cal.App.3d 523, 531, 161 Cal.Rptr. 664.)
Further, the trial court's determination that the motion to proceed in propria persona made on the day the case was set for trial after several continuances and 11 months after his arrest was untimely did not constitute an abuse of discretion. (People v. Clark, supra, 3 Cal.4th at p. 91, 10 Cal.Rptr.2d 554, 833 P.2d 561 [motion made on third day of 10–day trailing period was untimely]; People v. Frierson, supra, 53 Cal.3d at pp. 740–742, 280 Cal.Rptr. 440, 808 P.2d 1197 [motion made 10 months after appointment of counsel and 2 days before commencement of 10–day trailing period was untimely]; People v. Hill, supra, 148 Cal.App.3d at p. 757, 196 Cal.Rptr. 382 [self-representation motion made on February 11 when the case was set for trial on February 16 was untimely].) 3 Because the motion was untimely, the trial court had a duty to “inquire sua sponte into the specific factors underlying the request thereby ensuring a meaningful record in the event that appellate review is later required.” (People v. Windham, supra, 19 Cal.3d at p. 128, 137 Cal.Rptr. 8, 560 P.2d 1187.) The purpose of the Windham rule and the motive of its implementation was described by our Supreme Court in People v. Burton, supra, 48 Cal.3d at pages 852–853, 258 Cal.Rptr. 184, 771 P.2d 1270: “The ‘reasonable time’ requirement [set forth in Windham ] is intended to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice. ‘For example, a defendant should not be permitted to wait until the day preceding trial before he [or she] moves to represent himself [or herself] and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request. In such a case the motion for self-representation is addressed to the sound discretion of the trial court which should consider relevant factors such as whether or not defense counsel has himself indicated that he is not ready for trial and needs further time for preparation.’ [Citations.] We directed trial courts to consider the ‘quality of counsel's representation of the defendant, 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.’ [Citations.]”
In the present case, the trial court fully complied with its Windham obligations. In its discussions with defendant, the trial court was able to elicit the following factors. The trial court found out that defendant had months before sought and secured self-representation in an aggravated kidnapping case being tried in the central district of superior court. The trial court had before it the fact that the charged crimes occurred over one year prior to defendant's self-representation request. Further, the court could discern from reviewing the superior court file that the case had been continued on numerous occasions before. Moreover, defendant made it clear that he was not ready for trial because there had been, in his view, mismanaged legal representation and investigation. The fairest inference to draw from defendant's statements that the defense was not ready and there had been inadequate investigation was that the trial of the charges would necessarily be delayed. Also, the trial court had before it the preliminary examination transcript which indicated that Ms. Blumenthal had successfully secured the dismissal of a number of charges in municipal court. Additionally, the trial judge knew that he in fact had granted a dismissal motion pursuant to section 995 as to three of the counts in the information. The trial court gave defendant every opportunity to set forth his reasons for the belated self-representation request. Given the lengthy delays in the present case, the question of whether to grant the untimely self-representation request was “ ‘addressed to the sound discretion of the trial court’․” (People v. Burton, supra, 48 Cal.3d at p. 853, 258 Cal.Rptr. 184, 771 P.2d 1270; People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5, 137 Cal.Rptr. 8, 560 P.2d 1187.) The trial judge did not abuse his discretion.
In essence, defendant's argument is that the trial court had to ask more questions than it did of defendant, Mr. McCallister, and Ms. Blumenthal. Defendant has not explained just what additional questions had to be asked. The trial court on its own motion asked questions of defendant on February 19 and February 24. Accepting defendant's interpretation of Windham, all it required was that the trial judge “inquire sua sponte into the specific factors underlying the request․” The trial judge did just that. Windham does not require a trial judge to ask specific questions. For example, he appears to be arguing that when he on his own indicated the defense was not ready because defense counsel had not acted competently and the investigation had been mismanaged, that the trial judge had to ask whether defendant would be ready for trial. Quite obviously, the defendant would not be ready for trial if the investigation was not yet complete. Defendant's suggestion that the trial judge who twice acted deliberately and cautiously in the present case failed to comply with his obligations under Windham is without merit.
Second, even if the trial judge did not comply with his Windham duties, defendant has failed to indicate that he was prejudiced. The sua sponte duty to consider certain factors in evaluating the timeliness of a motion is not required by the United States Constitution. Faretta makes no mention of such a duty nor has any United States Supreme Court decision.4 The only hearing Faretta required was one in which it was assured that the defendant “ ‘knowingly and intelligently’ ” gave up the benefits of representation by counsel. In Faretta, the request for appointment of counsel was made “weeks before trial.” (Faretta v. California, supra, 422 U.S. at p. 835, 95 S.Ct. at p. 2541.) Accordingly, the Windham procedural requirement that a court “inquire sua sponte into the specific factors underlying the request thereby ensuring a meaningful record in the event that appellate review is later required” is not one imposed by the United States Constitution. The purpose of the procedural requirement is to ensure “a meaningful record in the event that appellate review is later required.” (People v. Windham, supra, 19 Cal.3d at p. 128, 137 Cal.Rptr. 8, 560 P.2d 1187.) The Courts of Appeal are in accord that the Windham sua sponte inquiry rule is procedural in nature. (See People v. Perez, supra, 4 Cal.App.4th at pp. 903–904, 6 Cal.Rptr.2d 141; People v. Hernandez, supra, 163 Cal.App.3d at p. 650, 209 Cal.Rptr. 809; People v. Ruiz (1983) 142 Cal.App.3d 780, 791, 191 Cal.Rptr. 249.)
As a result, the violation of the procedural rule in Windham which is not mandated by the United States Constitution is subject to the requirement that prejudice be shown. No doubt, the denial of a motion for self-representation, if timely made, is reversible error per se. (People v. Joseph (1983) 34 Cal.3d 936, 948, 196 Cal.Rptr. 339, 671 P.2d 843.) However, as noted previously, in the present case the trial court's determination that the request was untimely was not an abuse of discretion. Defendant's argument that he would nonetheless still be entitled to reversal because the trial court did not engage in the Windham inquiry is an entirely different matter than the violation of the constitutional right to self-representation. The Windham inquiry is a procedural rule; the right to self-representation is constitutionally mandated.
Article VI, section 13 of the California Constitution which sets forth the appropriate rule of reversible error 5 states in pertinent part: “No judgment shall be set aside, or new trial granted, in any cause, on the ground of ․ any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” The California Supreme Court has held that article VI, section 13 applies to errors made in conjunction with the denial of the right to self-representation under state law. In People v. Sharp, supra, 7 Cal.3d at pp. 462–463, 103 Cal.Rptr. 233, 499 P.2d 489, the Supreme Court held: “The court did not abuse its discretion in denying the motion to defend pro se, but even assuming such an abuse we find that such an error clearly could not have resulted in a miscarriage of justice.” On a review of the entire record, it does not appear reasonably probable that a result more favorable to defendant would have been reached had he represented himself. (People v. Watson (1946) 46 Cal.2d 818, 837 [299 P.2d 243].) Sharp is the controlling authority as to any errors relating to self-representation which are not the subject of a federal constitutional mandate.
Recently, my colleagues in Division Two of the Fourth Appellate District reached a similar conclusion concerning the application of article VI, section 13, to Windham error. In People v. Rivers (1993) 20 Cal.App.4th 1040, 1050, 25 Cal.Rptr.2d 602, the court held: “It remains to consider the effect of the error. Error in denying a timely Faretta motion is reversible error per se. [Citations.] ․ [¶] By delaying his Faretta motion until virtually the end of proceedings, defendant waived, or forfeited, his absolute constitutional right. His right was based on case law (e.g. People v. Windham), as was that in Crandell. Thus, we conclude that although the court erred in its handling of his request under the applicable precedents, this error is not automatically reversible, but is reviewed under the ‘harmless error’ test of Watson. That case, construing what is now article VI, section 13 of the California Constitution, defined the standard as whether in the absence of the error, it is ‘reasonably probable’ that a result more favorable to the appellant would have been reached. We therefore proceed to apply this standard.” Accordingly, based on the express language of article VI, section 13, Sharp, and Rivers, the test of reversible error should be that set forth in the California Constitution.
In the present case, defendant has failed to demonstrate that it was more reasonably probable that he would have secured an acquittal had the trial court engaged in the Windham inquiry. In fact, defendant has not even demonstrated that it would be more reasonably probable that the court would have granted the request to appear in propria persona had something more been done.6
For the foregoing reasons, I would affirm the judgment.
1. No information besides the bare fact of Sims' self-representation in another matter was before the trial court. While the dissent in footnote 6 mentions Sims' appellate arguments arising from that other matter, none of that information was before the trial court or is part of the record on appeal in this case.
2. The Herrera court alternatively held that the motion was in fact timely. (People v. Herrera, supra, 104 Cal.App.3d at pp. 174–175, 163 Cal.Rptr. 435.)
3. Furthermore, unlike the court in Perez, the trial court here did not have the advantage of being able to consider a prior denial of a defendant's Marsden motion. Instead, as noted, a Marsden hearing was held more than two weeks after the denial of Sims' Faretta motion. Therefore, unlike the trial court in Perez, the trial court here could not have been “aware of the quality of counsel's representation” from what was on the record when it denied the Faretta motion. (People v. Perez, supra, 4 Cal.App.4th at p. 904, 6 Cal.Rptr.2d 141.)
4. The Hernandez court considered the propriety of the denial of a Faretta motion where the trial court did not inquire as to the various Windham factors. Despite its recognition that such an error was ordinarily prejudicial per se, the court, for reasons not disclosed by the opinion, appointed a referee to conduct an inquiry and make factual findings in order to establish a proper record under Windham. Even so, the court noted that the reference procedure would only be repeated in a rare situation and warned that the trial courts are expected to comply with Windham. (People v. Hernandez, supra, 163 Cal.App.3d at p. 655, 209 Cal.Rptr. 809.)
5. The Rivers court also declined to follow the rule in Marsden cases that the failure to make the required inquiry before ruling is reversible per se. (People v. Rivers, supra, 20 Cal.App.4th at p. 1052, 25 Cal.Rptr.2d 602.) The Rivers court distinguished an untimely Faretta motion from a Marsden motion by citing authority which holds that the core of the Faretta right is to control the case which the defendant presents to the jury. (Id.) The defendant in Rivers only asked to go pro. per. before the bifurcated court trial on his prior convictions began, following a jury trial of the guilt phase.Even under Rivers, therefore, the Marsden analogy should apply here since Sims asked to represent himself two weeks before his jury trial began.
6. The dissent relies on People v. Sharp (1972) 7 Cal.3d 448, 103 Cal.Rptr. 233, 499 P.2d 489 for the proposition that the failure to permit a criminal defendant's request for self-representation is reviewed under the harmless error standard. Sharp was decided three years before Faretta and was premised on the mistaken belief that the right of self-representation was not constitutional. It was the Sharp decision upon which our state courts relied in affirming the conviction at issue in Faretta, a conviction which the United States Supreme Court overturned because the right of self-representation was found to be constitutional. (Faretta v. California, supra, 422 U.S. at pp. 811–812, fns. 6, 7 and 8, 95 S.Ct. at p. 2529, fns. 6, 7 and 8.) The Faretta court's rejection of the Sharp decision was the starting point for the Windham court: “Contrary to an earlier conclusion reached by this court in [Sharp ], the United States Supreme Court has held that a defendant in a state criminal trial has a federal constitutional right to represent himself without counsel if he voluntarily and intelligently elects to do so. [Citation.]” (People v. Windham, supra, 19 Cal.3d at p. 124, 137 Cal.Rptr. 8, 560 P.2d 1187, citing to Faretta v. California, supra, 422 U.S. 806, 95 S.Ct. 2525.)
7. We also note that respondent's brief utterly failed to address at all the issue of the proper inquiry under Windham thus leading us to conclude that the point has been waived. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 41, 210 Cal.Rptr. 762, 694 P.2d 1134.)
1. All future statutory references are to the Penal Code unless otherwise indicated.
2. Defendant argues the trial judge had a duty imposed by Windham to “inquire sua sponte into the specific factors underlying the request ․” for self-representation. (People v. Windham, supra, 19 Cal.3d at p. 128, 137 Cal.Rptr. 8, 560 P.2d 1187.) However, our Supreme Court has since in the last five years, with one exception, dropped the reference to a “sua sponte to inquire” language from its decisions discussing belated propria persona requests. Now, our Supreme Court has repeatedly indicated the duty of the court is to “consider” the Windham factors. (People v. Cummings (1993) 4 Cal.4th 1233, 1320–1321, 18 Cal.Rptr.2d 796, 850 P.2d 1; People v. Clark (1992) 3 Cal.4th 41, 98, 10 Cal.Rptr.2d 554, 833 P.2d 561; People v. Frierson (1991) 53 Cal.3d 730, 742, 280 Cal.Rptr. 440, 808 P.2d 1197; People v. Gallego (1990) 52 Cal.3d 115, 163, 276 Cal.Rptr. 679, 802 P.2d 169; People v. Burton (1989) 48 Cal.3d 843, 853, 258 Cal.Rptr. 184, 771 P.2d 1270.) In the past five years, on only one occasion has our Supreme Court referred to the obligation imposed by Windham to be one of inquiry as to the enumerated factors. (People v. Hardy (1992) 2 Cal.4th 86, 195, 5 Cal.Rptr.2d 796, 825 P.2d 781.) Rather, the language utilized by our Supreme Court has otherwise consisted of references to a duty to consider the Windham factors.
3. Even under the standard of determining whether a request for self-representation is untimely adopted by our colleagues in the Ninth Circuit, the trial judge in this case did not abuse his discretion in determining that defendant had waited too long in order to make his motion. Under their formulation of the timeliness rule set forth in Faretta, the Ninth Circuit permits a state trial judge to deny a request made on the day of trial when there is a motive to secure delay. In Fritz v. Spalding (9th Cir.1982) 682 F.2d 782, 784, the Ninth Circuit held: “In determining whether a defendant's request to defend himself is a tactic to secure delay, the court may, of course, consider the effect of delay. A showing that a continuance would be required and that the resulting delay would prejudice the prosecution may be evidence of a defendant's dilatory intent. In this case, for example, where Fritz's pre-trial conduct had already caused substantial delay, a showing that his motion included a request for a continuance would be strong evidence of a purpose to delay.” In U.S. v. Flewitt (9th Cir.1989) 874 F.2d 669, 674–675, a Ninth Circuit panel held: “Of course, a request for self-representation need not be granted if it is intended merely as a tactic for delay. [Citations.] Moreover, a court may consider events preceding [sic ] a motion for self-representation to determine whether the request is made in good faith or merely for delay. [Citation.] Thus, if the district judge determines that the [defendant's] request is part of a pattern of dilatory activity, the court has the discretion to deny the continuance and require the defendant to proceed to trial on the scheduled date either with the counsel designated or pro se. A defendant proceeding pro se, or requesting to proceed pro se, is subject to the same good faith limitations imposed on lawyers, as officers of the court.” In the present case, there were five continuances in superior court prior to the date upon which the cause was called for trial on February 19, 1992. On that date, defendant's assigned deputy public defender did not come to court. Further, as can be noted in the body of this opinion, on February 19, 1992, defendant acknowledged through a deputy public defender that he previously had been granted pro se privileges in another case. Defendant stated that not only had his attorney mishandled the case, but the investigators had mismanaged the investigation. Also, the fairest to draw from defendant's complaints that Ms. Blumenthal had too much work to do and had placed his case at the bottom of her priorities was that she had not properly prepared for trial. Certainly, the trial court was well justified in concluding that the purpose of the last minute pro se request by defendant who knew full well he had a right to represent himself, was a dilatory effort to secure further delay in a case where the robbery of which he was convicted occurred more than one year prior to the belated self-representation motion. Further, the trial judge's assessment on February 19, 1992, was further buttressed by the inquiry that occurred on February 24, 1992, the fifth trailing day of the 10–day period. The court specifically asked how long defendant had known that he had a right to represent himself. Defendant stated that he had been representing himself in the other case for “[m]onths.” Given these circumstances, the fairest inference to draw from the entire state of affairs is that defendant merely sought to delay a case which had been pending nearly one year. Under the Ninth Circuit Faretta formulation, such a motion, the purpose of which was to delay proceedings, could properly be denied by a state court judge.One final note is in order concerning the Ninth Circuit's interpretation of Faretta. The Ninth Circuit does not require a trial judge to engage in any sua sponte inquiry of a defendant. Rather, the Ninth Circuit rule permits the court to “consider events preceding [sic ] a motion for self-representation to determine whether the request is made in good faith or merely for delay. [Citation.]” (U.S. v. Flewitt, supra, 874 F.2d at p. 675.) In other words, the Ninth Circuit utilizes the same word that has consistently reappeared over the past five years in California Supreme Court decisions concerning the duty of a trial judge. That is to say, both the Ninth Circuit and the California Supreme Court permit a trial judge to “consider” various factors in determining whether a belated self-representation request is made in good faith.
4. It bears emphasis that the Faretta right is not absolute. Courts have articulated a whole series of limits on the right of self-representation. First, the assertion of the right must be unequivocal. (People v. Clark, supra, 3 Cal.4th at pp. 97–98, 10 Cal.Rptr.2d 554, 833 P.2d 561.) Second, as noted above, the request must be timely. (Ibid.) Third, over a defendant's objection, standby counsel may even under limited circumstances participate in the trial in the presence of the jury. (McKaskle v. Wiggins (1984) 465 U.S. 168, 185–186, 104 S.Ct. 944, 954–955, 79 L.Ed.2d 122.) Fourth, defendant may lose the right when she or he “deliberately engages in serious and obstructionist misconduct” in the courtroom. (Faretta v. California, supra, 422 U.S. at p. 834, fn. 46, 95 S.Ct. at p. 2541, fn. 46; Davis v. Morris (9th Cir.1981) 657 F.2d 1104, 1106.) Fifth, if a defendant's disability precludes participation in the trial, limitations may be placed on the accused's opportunity to question witnesses before the jury or to participate in voir dire examination. (Savage v. Estelle (9th Cir.1990) 924 F.2d 1459, 1463–1465.) Sixth, before a defendant may appear in propria persona, the accused must “ ‘knowingly and intelligently’ forgo” the benefits of representation. (Faretta v. California, supra, 422 U.S. at p. 835, 95 S.Ct. at p. 2541.) Seventh, under very limited circumstances, even misconduct outside the courtroom by an incarcerated defendant in a jail can result in the loss of the right to propria persona representation. (Ferrel v. Superior Court (1978) 20 Cal.3d 888, 892, 144 Cal.Rptr. 610, 576 P.2d 93.)Additionally, it is important to note that the opportunity to represent oneself is fundamentally different from other federal constitutional rights. For example, the right to counsel is so fundamental that in order for it to be waived, the record must reflect the defendant “ ‘knowingly and intelligently’ ” gave up the benefits of representation by an attorney. (Faretta v. California, supra, 422 U.S. at p. 835, 95 S.Ct. at p. 2541.) By contrast, there is no requirement that the record reflect such a waiver of a right to self-representation. Merely acceding to representation by counsel is enough to waive Faretta rights. (McKaskle v. Wiggins, supra, 465 U.S. at pp. 173–182, 104 S.Ct. at pp. 948–953.) The United States Supreme Court has noted that in terms of waiving the right to counsel, that court has “imposed the most rigorous restrictions on the information that must be conveyed to a defendant, and the procedures that must be observed, before permitting him [or her] to waive his [or her] right to counsel at trial. [Citations.]” (Patterson v. Illinois (1988) 487 U.S. 285, 298, 108 S.Ct. 2389, 2397, 101 L.Ed.2d 261.) The Patterson court defined the circumstances that must occur in connection with the waiver of the right to counsel as being at “one end of the spectrum” in terms of what must occur before a defendant constitutionally gives up the right to representation by an attorney. Quite obviously, waiver of the Faretta right falls at the other end of the spectrum. There is no requirement that a defendant even be apprised of the right to self-representation; rather, the United States Supreme Court has held that merely acceding to representation by counsel constitutes waiver of the Faretta option.
5. All future references to article VI, section 13 are to that portion of the California Constitution.
6. The Faretta rule presents difficult problems for trial and appellate courts. In People v. Clark, supra, 3 Cal.4th at page 115, 10 Cal.Rptr.2d 554, 833 P.2d 561, our Supreme Court held: “ ‘Trial courts are not required to engage in game playing with cunning defendants who present Hobson's choices.’ Faretta ․ held generally that a defendant may represent himself. It did not establish a game in which defendant can engage in a series of machinations, with one misstep by the court resulting in reversal of an otherwise fair trial.” Other courts have noted that defendants often choose to transform the constitutionally guaranteed right of self-representation which is premised upon assuring the dignity of the accused into “ ‘the Faretta game’․” (People v. Williams (1990) 220 Cal.App.3d 1165, 1170, 269 Cal.Rptr. 705; accord, People v. Lopez (1981) 116 Cal.App.3d 882, 889–890, 172 Cal.Rptr. 374.) In the present case, defendant was utilizing the United States Constitution as a means to exculpate himself from a trial in which he was tried fairly and justly. To demonstrate the lengths to which defendant has gone to misuse the constitutional right to proceed in pro se, one must only look to defendant's other pending appeal in this division of the Second Appellate District. Defendant has a pending appeal in this court. In that case, People v. Sims, B0711176, defendant was convicted after representing himself in propria persona. This was the case referred to by both defendant and the court during the February 19 and 24, 1992, proceedings in this case. In that appeal, defendant is contending that he should never have been permitted to represent himself. In other words, in the present case defendant is contending he should have had the right to self-representation. In the other pending case in this division, he is arguing he should never have been granted the right of self-representation. Faretta, which is premised upon concerns relating to the dignity of persons accused of crime, arises from the very best instincts of the Constitution. However, defendant's contentions and conduct betray the sacredness of that document.
GODOY PEREZ, Associate Justice.
ARMSTRONG, J., concurs.