PEOPLE v. CRENSHAW

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Court of Appeal, Second District, Division 7, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Renard CRENSHAW, Defendant and Appellant.

B010160.

Decided: April 28, 1986

Hufstedler, Miller, Carlson & Beardsley and Dan Marmalefsky, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Robert R. Anderson, Supervising Deputy Atty. Gen., and Robert C. Schneider, Deputy Atty. Gen., for plaintiff and respondent.

The appellant challenges his conviction for robbery in violation of Penal Code section 211 and grand theft of a gun in violation of Penal Code section 487.3.   There are two central issues on appeal.   First, did the trial court err when in discussing with the appellant whether he wanted to admit a prior conviction or have the jury determine the matter, the court failed to advise the appellant of his right to a separate proceeding on this issue if he chose the latter option.   Second, did the trial court err in denying the appellant's motion to withdraw his waiver of counsel.   We conclude the trial court erred in both respects.   However, while the initial error was not prejudicial, the second error requires reversal of the appellant's conviction.

I. STATEMENT OF FACTS AND PROCEEDINGS BELOW

On June 6, 1984, the appellant, Crenshaw, was charged with robbery and grand theft of a gun.   The information also alleged a firearm was used in the commission of each of the above offenses and Crenshaw had previously been convicted of a serious felony—robbery.

On August 8, 1984, the matter was called for trial.   Crenshaw immediately made a motion to represent himself.   He told the court he was not getting a proper defense.   The court inquired into Crenshaw's competency to conduct his own defense and emphasized the magnitude of the decision and the risks involved.   The court also discussed with Crenshaw the possible sentences he could receive if convicted.   After Crenshaw continued to insist on proceeding pro. per., the trial court relieved appointed counsel.

Immediately after this ruling, the court (and opposing counsel) discussed with Crenshaw the allegation of his prior conviction for robbery.   The court asked him whether he admitted or denied the allegation.   Initially, Crenshaw stated he wished to admit the prior conviction, but quickly changed his mind.   After this decision, the court informed him opposing counsel would have the right to prove the prior during the course of trial.   Both the court and opposing counsel sought to clarify whether this was Crenshaw's desired course of action, i.e., that he wanted to leave the whole matter up to the jury.   Crenshaw agreed that it was.   The trial subsequently commenced.

The People called as its only witness, Dorothy Price, the alleged victim of the charged offenses.   She testified on April 4, 1984, she hired Crenshaw to paint part of her house.   Crenshaw was her next door neighbor's brother.   He completed some of the work on that day and received partial payment.   Crenshaw returned the next day for additional payment.   At that time, he agreed to paint Price's garage door the next day.   Crenshaw, however, returned later that evening and told Price he wanted to paint the garage door tonight.   After this was agreed upon, Crenshaw went to the backyard.   Shortly thereafter, he asked to come inside and use the bathroom.   Although Price at first refused, she decided to let him in.   She showed him where the bathroom was and then went back into the kitchen.   She later went to tell him to turn off her bath water and found him standing outside the bathroom door.   She told him where the toilet was and he went back into the bathroom.   She later returned to the bathroom to ask him again to turn off the water.   She discovered, however, he wasn't there.   She subsequently saw him come out from her front bedroom.   He had her red wallet in his left hand and her gun in his right hand.   He had removed these items from her purse in her bedroom.   He approached her, pointed her gun towards her head, and ordered her to give him her money.   She gave him money from her wallet as well as money she had hidden in her pillow case.   Crenshaw then took the money and ran out the back door.   Price later called the police and reported the crime.

After the witness was excused and the jury recessed for lunch, Crenshaw sought to be represented by counsel.   He told the court he was not able to continue pro. per.   The court felt Crenshaw was making this request simply to delay the matter and told him he was being dishonest in this regard.   It denied his request.

When the jury returned after lunch, the People introduced evidence of Crenshaw's prior robbery conviction.1  Crenshaw did not object.   After its acceptance into evidence, the People rested.

Crenshaw asked for a continuance.   He wanted time to prepare a proper defense.   The court denied this motion since at the time Crenshaw requested pro. per. status, he told the court he was prepared to proceed.   The court refused to stop the proceeding in the middle of the trial.

Crenshaw testified on his own behalf.   He testified he knew Price personally because he had seen her whenever he was at his brother's house.   She asked him to do some work for her around the house.   They became intimately involved.   On the day she called the police, she had given him some money in return for sex.   He never robbed her, however.   In arguing this was a fixed case, he testified Price had earlier agreed to drop the charges, but the People refused.

On cross-examination, Crenshaw admitted he had been convicted and served a term in prison for robbery with a gun.   He also agreed Price had testified accurately as to his receiving money for work around the house.   He denied, however, ever seeing a gun in the house or taking money from her by force.

When the proceedings resumed the next day, Crenshaw sought to challenge the admission of the records from the Department of Corrections relative to his prior conviction.   He argued it did not pertain to the present case.   The court, however, told Crenshaw it had explained the procedure to him at the beginning of the trial.   The evidence was properly introduced since he had denied the prior conviction and wanted the People to prove it to the jury.   Crenshaw told the court he didn't understand.   The court replied it was too late to make this argument.   Crenshaw thereupon asked for assistance and a continuance.   His requests were denied.   Crenshaw filed a Code of Civil Procedure section 170.6 motion.   The trial court received it and stated it would refer the matter to the proper court.

The People called Price as a rebuttal witness.   She denied Crenshaw's version of the facts.   She also stated although she at one time felt sympathy for Crenshaw and considered dropping the charges, her account of what happened was accurate.

After Price's testimony, Crenshaw sought a continuance to contact witnesses.   The court denied the motion.   During a 15-minute recess, however, the court allowed Crenshaw to make some phone calls in an attempt to secure witnesses.   He was unsuccessful.

The jury began its deliberations.   Prior to reaching a verdict, it asked the court to reread the trial testimony of Price and Crenshaw.   It also asked whether all the jurors had to agree on the use or nonuse of the firearm as alleged in the information.

On August 9, 1984, the jury found Crenshaw guilty of the charged offenses and the allegations to be true.

Crenshaw filed a motion for a new trial.   It was denied on January 4, 1985.

On the same day, Crenshaw appealed his conviction.

II. THE TRIAL COURT ERRED IN FAILING TO TELL THE APPELLANT HE HAD A RIGHT TO A BIFURCATED PROCEEDING WHEN THE COURT INFORMED HIM OF HIS RIGHT TO DENY HIS PRIOR CONVICTION AND HAVE A JURY DECIDE THE ISSUE.

Crenshaw contends the trial court should have informed him of his right to a bifurcated proceeding when he contested his prior conviction and the trial court described the possible courses of action.   We agree.

 In People v. Bracamonte (1981) 119 Cal.App.3d 644, 174 Cal.Rptr. 191 the defendant was charged with burglary.   The information also alleged he had suffered five prior felony convictions.   The defendant pled not guilty and denied the allegations of the prior convictions.   He moved for a bifurcated trial on the issues of guilt and the validity of the prior convictions.   He contended it would be highly prejudicial to allow the jury to determine the truthfulness of the priors at the same time it was determining the issue of his guilt or innocence.   The trial court denied this motion.

The appellate court reversed, concluding the defendant was entitled to a bifurcated proceeding.   As the court stated, “The unitary procedure, though heretofore accepted in this state, needlessly exposed defendant to serious potential prejudice by revealing his prior criminality without advancing any legitimate state interest.   Denial of the bifurcation motion herein also prejudiced defendant by permitting impeachment of his credibility by evidence that he allegedly suffered five previous felony convictions, which evidence was, for the most part, inadmissible under Beagle [ (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1] standards, and gave the prosecutor the opportunity to brand defendant a ‘professional crook.’ ”  (Id., 119 Cal.App.3d at pp. 649–650, 174 Cal.Rptr. 191.)   As a judicially declared rule of practice, the court stated a defendant is entitled to a bifurcated proceeding such that the jury does not learn of his prior convictions until it has found the defendant guilty of the charged offense whenever a defendant denies the prior conviction and does not waive a jury trial.  (Id., at p. 654, 174 Cal.Rptr. 191.)

In People v. Tipton (1984) 160 Cal.App.3d 853, 855–856, 206 Cal.Rptr. 821, this court endorsed the rule of practice established in Bracamonte and also concluded since Bracamonte imposes no limitation on the use of prior felony convictions, the enactment of Proposition 8 did not abrogate the bifurcated trial requirement.2  (See also People v. Martinez (1985) 175 Cal.App.3d 881, 221 Cal.Rptr. 258.)

We recognize other appellate courts have rejected Bracamonte.  (See People v. Trujillo (1984) 154 Cal.App.3d 1077, 1090–1091, 202 Cal.Rptr. 832.)   However, as our decision in Tipton should have made apparent, we find the Bracamonte standard persuasive.3

In the case at bar, the trial court and the People explained to Crenshaw in detail that he could either admit the alleged priors or have the jury determine the validity of the allegations.4  As the transcript reflects:

“MR. DAWSON [People's counsel]:  Mr. Crenshaw, you have indicated to the court that you wish to admit the special allegation which is alleged against you․  [¶] Do you understand that allegation against you, sir?

“THE DEFENDANT:  Yes, I do.

“MR. DAWSON:  And is it your desire to admit that allegation now that you were previously convicted on or about the 23rd day of May, 1978․

“THE DEFENDANT:  I don't want to admit it.

“THE COURT:  Then during the course of the trial the district attorney will have the right to prove this matter.

“MR. DAWSON:  Do you understand, Mr. Crenshaw, you have a right to have the jury determine whether or not you were convicted of that charge of robbery back in 1978;  do you understand that?

“THE DEFENDANT:  Yes.

“MR. DAWSON:  You wish a jury trial in this matter, do you not?

“THE DEFENDANT:  Yes, I do.

“Mr. Dawson:  Do you wish the jury to not only determine whether you are guilty or not guilty of the crime of robbery ․, but you wish the jury ․ also to make the determination of whether your prior conviction is true or not true;  is that what you are telling us?

“THE DEFENDANT:  Yes.

“MR. DAWSON:  You wish to leave the whole matter up to the jury?

“THE DEFENDANT:  Right.

“MR. DAWSON:  And you wish the whole thing left up to the jury?

“THE DEFENDANT:  Yes.

“THE COURT:  Then we will proceed.   The jury is waiting outside.”

During this entire discussion, neither the trial court nor opposing counsel informed Crenshaw of his right to a bifurcated proceeding.   We think this was in error.   When a court describes procedural options available to a defendant relative to issues of such critical importance as in the case at bar, the court must do so accurately, giving a full description of all the options of which the defendant is entitled.   Such is the case whether the defendant is represented by counsel or is proceeding pro. per.   In the current proceeding, the court, with the assistance of opposing counsel, led the defendant to believe it was informing him of his rights in this context.   While the court indeed informed Crenshaw of his right to jury deliberation on this matter, the court failed to inform the defendant of the important auxiliary right of a bifurcated proceeding.

 Although the trial court erred in this regard, it was not prejudicial error.   When Crenshaw was cross-examined, opposing counsel impeached him with his prior armed robbery conviction.   Crenshaw did not interpose an objection that this evidence should be excluded pursuant to Evidence Code section 352.   Thus, this evidence was properly considered by the jury for impeachment purposes.   As such, unlike the case in Bracamonte, the jury did not have before it evidence of a prior conviction only because the defendant was denied the right, or was unaware of the right, to have a bifurcated proceeding.   As a result, it cannot be said that the failure to bifurcate the proceedings prejudiced Crenshaw by allowing the admission of his prior robbery conviction which otherwise would have been inadmissible.   Moreover, while it is true Crenshaw's assault with a deadly weapon conviction was submitted along with his robbery conviction, and it may well have been inadmissible for impeachment purposes (see People v. Castro (1985) 38 Cal.3d 301, 316, 211 Cal.Rptr. 719, 696 P.2d 111;  1 Witkin, Cal.Procedure (3d ed. 1985) Attorneys, § 375, pp. 424–425), we fail to see how its introduction constituted prejudicial error in light of the admission of Crenshaw's prior robbery conviction.   The additional effect its introduction had on the jury was likely minimal in light of the admission of Crenshaw's prior robbery conviction since this latter conviction was identical to one of the charged offenses and, as such, was clearly the more damaging.5

III. THE TRIAL COURT ERRED IN DENYING CRENSHAW'S REQUEST TO WITHDRAW HIS WAIVER OF COUNSEL

After the People's only witness completed her testimony, Crenshaw sought to relinquish his pro. per. status and have counsel represent him.   However, the trial court told Crenshaw he had been advised of the difficulties and risks he was facing in proceeding pro. per. and yet he decided to pursue that path anyway.   The court believed Crenshaw was simply trying to delay the matter.   Without making any further inquiries, the trial court denied Crenshaw's request.   Crenshaw contends this was in error.   We agree.

In People v. Elliott (1977) 70 Cal.App.3d 984, 139 Cal.Rptr. 205, the defendant made a motion to represent himself when the matter was called for trial.   This motion was granted.   However, after a jury had been selected, the defendant made a request to withdraw his waiver of counsel.   The defendant made this request after he learned the prosecutor planned to call witnesses to provide evidence the defendant had committed an uncharged offense.   The trial court denied this request essentially stating it was too late for the defendant to ask for an attorney to take over the case to rectify the defendant's mistakes and he had been warned of the dangers of self-representation yet still chosen this course.

In reviewing the trial court's decision, the appellate court discussed the relevant factors which a trial court should consider in order to assess a defendant's request to withdraw his waiver of counsel.   As the court stated:  “Relevant factors should include, among other, the following:  (1) defendant's prior history in the substitution of counsel and in the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendant's effectiveness in defending against the charges if required to continue to act as his own attorney.”   (Id., at pp. 993–994, 139 Cal.Rptr. 205.)   The appellate court also concluded the trial must establish a record based upon the relevant factors involved.6  (Id., at p. 994, 139 Cal.Rptr. 205.)

After applying the above factors to the case before it, the appellate court reversed the trial court's decision.   The court deemed the defendant's reason for the request to be a valid one.   In addition, it came at an early stage of the proceeding.   Moreover, the trial was not a lengthy one.   While the public defender who would have taken over the case stated he would need a ten-day delay in the trial, no showing was made this would cause a disruption in the court's calendar or be prejudicial to the prosecution.  (Id., at pp. 997–998, 139 Cal.Rptr. 205.)   However, the trial court was only willing to grant the defendant's request if the public defender was prepared to begin the matter at once with the jury that had already been selected.   It also failed to consider the likelihood of the defendant's effectiveness in defending against the charges.  (Id., at p. 996, 139 Cal.Rptr. 205.)   As a result, the trial court abused its discretion in denying the defendant's request.

In People v. Cruz (1978) 83 Cal.App.3d 308, 147 Cal.Rptr. 740, a pro. per. defendant on the date originally set for trial sought to withdraw his previous waiver of counsel and asked for the reappointment of his public defender.   Prior to this motion, the court had refused to continue the matter for two to three weeks.   The court subsequently questioned the public defender and learned he could not handle the case and it would take in excess of three weeks for another counsel to prepare the case.   The court denied the defendant's motion ruling it was untimely.

The appellate court held the trial court abused its discretion in denying the defendant's motion.   In reaching this conclusion, it examined the factors outlined in Elliott.   First, the defendant's reason for the request was valid—he felt incompetent to proceed in the matter without counsel.   Moreover, the motion was made in good faith.   Second, the motion was made prior to the assignment of a courtroom.   Third, although the public defender stated a delay of more than three weeks would be required, the court should have asked a public defender who was prepared to handle the case how long a delay was necessary.   No showing was made the continuance would cause a disruption or be detrimental to the prosecution.   Fourth, the defendant would be able to more effectively defend against the charges if represented by counsel.   Finally, the court stated the fact the public defender could not proceed immediately to trial should have been irrelevant to the examination of the defendant's motion.  (Id., at pp. 320–321, 147 Cal.Rptr. 740;  see also People v. Hill (1983) 148 Cal.App.3d 744, 760–761, 196 Cal.Rptr. 382 [after examining the factors identified in Elliott and Cruz, the appellate court concluded the lower court erred in denying the defendant's motion to withdraw his waiver of counsel.].)

In the case at bar, the defendant sought pro. per. status when the case was called and asked to withdraw his waiver of counsel after the prosecution's sole witness had testified.   There was no showing the defendant had a lengthy prior history with respect to substitution of counsel and self-representation such that it could be inferred that he was seeking to abuse the system.   In making the request, Crenshaw stated he no longer felt he could adequately represent himself.   As he told the court, “I kind of overdid it as far as trying to represent myself.”   As the court stated in Cruz, this is an adequate reason for seeking to withdraw a waiver of counsel.  (People v. Cruz, supra, 83 Cal.App.3d at p. 320, 147 Cal.Rptr. 740.) 7  In addition, the trial court failed to investigate the extent of delay that would be necessary and there was no showing a delay would have been disruptive to the court's calendar or would have been detrimental to the prosecution's case.   Moreover, as recognized in Cruz, trained counsel will almost always be better able to defend the accused than the accused himself.  (Id., at p. 321, 147 Cal.Rptr. 740.)   Yet, the trial court made no note of this factor.   While we recognize, unlike the cases discussed above, Crenshaw did not make his motion until after the People had rested its case, we do not believe this factor alone justified the trial court's denial of his request.   The People had presented only one witness—the alleged victim of the crime.   Moreover, at the time the motion was made, the actual trial had lasted less than 30 minutes.   The People did not argue its witness would be unavailable in the future should the matter be continued.

 In reaching its decision, the trial court essentially denied the defendant's motion after examining only one of the factors deemed relevant in this context—the length and stage of the proceedings.8  As the court stated after learning of Crenshaw's request to secure the assistance of counsel:

“Mr. Crenshaw, this is very fine.   You have gone through the whole thing, and at this point are you trying to delay this matter?   The court tried very hard this morning, and you were well prepared.   You didn't want to follow the tactics of your own attorney․”

“․

“․ Mr. Crenshaw knew what he was charged with;  Mr. Crenshaw was advised of what he was facing;  and Mr. Crenshaw said that he felt competent, he knew what his defense was going to be.   Mr. Crenshaw knew all about it.  [¶] We haven't been in this trial for half an hour.   I think you have been pulling this to delay this matter.   You haven't been candid with the court and you are being dishonest.   I tried very hard this morning, and at this time I am going to deny your request.”

However, before a court can exercise its discretion to deny such a motion, it must first establish a record based upon an examination of all the relevant factors involved.  (People v. Elliott, supra, 70 Cal.App.3d at pp. 993–994, 139 Cal.Rptr. 205;  see also People v. Hernandez (1985) 163 Cal.App.3d 645, 650–651, 209 Cal.Rptr. 809.)   Without such a record, it is impossible for an appellate court to adequately review the propriety of the court's denial of a defendant's motion.9  (Ibid.)   The case at bar is illustrative.   The trial court, in denying Crenshaw's motion, accused Crenshaw of making this motion only for the purpose of delay.   However, with no attempt by the court to thoroughly explore the appropriateness of Crenshaw's request in light of the factors described above, no factual basis for this contention is readily apparent.10  We are unwilling to hold simply because a defendant makes a request to withdraw his waiver of counsel after the trial has commenced, he inevitably is doing so for the purpose of delay.

The People argue, however, the trial court's decision was a proper one—relying on People v. Smith (1980) 109 Cal.App.3d 476, 167 Cal.Rptr. 303 and People v. Smith (1980) 112 Cal.App.3d 37, 169 Cal.Rptr. 108.   We find these cases distinguishable.

In the earlier case, the defendant sought pro. per. status on the day the matter was called to trial because his public defender was unable to proceed due to a conflict in her schedule.   Subsequently, when the defendant was cross-examining the prosecution's first witness, the defendant asked the court to appoint counsel for him other than a public defender.   The court denied this request after conducting a hearing.   After three additional witnesses had testified, the prosecution rested.   When the trial was in its second day of the proceedings, the defendant again requested a change in status.   This time he stated he would be willing to have the prior public defender reinstated.   The trial court again conducted a hearing in the matter.   The court summoned the public defender and learned a delay of at least two weeks would be necessary.   The court denied the defendant's request.

The appellate court affirmed the lower court's decision.   The court rejected the defendant's contention the trial court failed to reasonably consider all the criteria outlined in Elliott and Cruz.   As the court stated:  “․ [T]he trial court did in fact give careful consideration to all aspects of the requests which might relate to these criteria.”  (People v. Smith, supra, 109 Cal.App.3d at p. 484, 167 Cal.Rptr. 303.)   While the court went on to state these criteria were not absolutes and the court must look at the totality of the circumstances, the court recognized “․ consideration of all these criteria is obviously relevant and helpful․”  (Ibid.)   As discussed in detail above, the court in the case before us failed to adequately examine all of the relevant factors and entirely ignored most of them before exercising its discretion.

The People emphasize that the Smith court, in distinguishing Elliott and Cruz, placed major significance on the stage of the proceeding at which the request for reinstatement occurred.   Importantly in this regard however, the court stated it “can be inferred from the record, that defendant did not in fact make his requests in good faith, but rather with the hope that it might lay the ground work for a subsequent reversal on appeal.”  (Id., at p. 485, 167 Cal.Rptr. 303.)   As discussed above, due to the failure of the trial court in the case at bar to make an adequate inquiry into the propriety of the defendant's motion, we are unable to find sufficient support for a similar inference.   Moreover, while in Smith there was little support for the defendant's contention he was unable to adequately represent himself, the same does not hold true in the case before us.   When Crenshaw initially sought pro. per. status, he was neither aware of the extent of the charges he faced nor the extent of the punishment he faced.   When the court asked Crenshaw to discuss his experience with law, Crenshaw informed him he knew how to read and had taken a power of arrest course for a security officer position.   Moreover, Crenshaw was totally unaware of his right to a bifurcated trial.11  Finally, the Smith court stated there was no assurance all the prosecution's witnesses would be available if the public defender was reinstated and given the minimally required two-week delay.  (Id., at pp. 485–486, 167 Cal.Rptr. 303.)   In the case at bar, no finding was made as to the length of delay that would be required and no indication was given by the prosecution that its only witness would become unavailable.

In the subsequent Smith case (involving a different defendant), the defendant requested pro. per. status at a pre-trial conference.   The court granted this request.   The trial was not set to commence for an additional six weeks due to a request by the defendant.   On the second day of trial, the defendant asked to be represented by counsel.   He contended he could not adequately defend himself.   The trial court denied his request.

The appellate court affirmed the trial court's decision.   In examining the trial court's exercise of its discretion, the court noted the lower court considered all of the criteria enumerated in Elliott and Cruz, yet rejected the request based on the totality of the circumstances.  (People v. Smith, supra, 112 Cal.App.3d at p. 50, 169 Cal.Rptr. 108.)   In distinguishing the case from Elliott and Cruz, the court stated the motion was made on the second day of trial after the victim had already testified.   Moreover, the length of delay which new counsel would require was inestimable.   The court reached this conclusion based on the complexity of the case, the number of victims and witnesses involved, and the numerous proceedings already conducted.   Nine prosecution witnesses were involved and a number of crimes were allegedly committed with special allegations charged.   In addition, in light of the defendant's demonstrated ability to represent his interest, his statement that he could not defend himself was inadequate without any additional explanation.   The defendant had made and argued in excess of twelve motions prior to this request.   These included a discovery motion, motion for hypnosis examination, motion to suppress evidence, and motion to suppress an in-court identification.  (Id., at pp. 50–51, 169 Cal.Rptr. 108.)

As discussed earlier, in the case at bar, the trial court failed to examine the Elliott and Cruz criteria and thus failed to establish an adequate record prior to denying Crenshaw's request for counsel.   Moreover, no estimate for the length of delay was established.   We note, however, in the case before us, only one victim was involved and that victim was the prosecution's only witness.   No lengthy record had already been created.12  Moreover, unlike Smith, Crenshaw did not demonstrate the level of skill in defending himself that leads this court to question his assertion as to the need to reinstate counsel.

 We thus conclude the trial court erred in denying Crenshaw's motion to withdraw his waiver of counsel without adequately considering the factors bearing on that decision.13

 We also conclude the trial court's abuse of discretion was reversible error.14  The evidence of Crenshaw's guilt was not overwhelming.   Essentially, the case was decided on the basis of credibility.   The jury was presented with only two witnesses—Crenshaw and Price.   Their testimony varied dramatically with respect to the critical details.   It is important to note after the jury retired to deliberate, it requested that the testimony of both the witnesses be reread and also sought clarification as to whether all the jurors had to agree before finding the firearm allegation true.   However, as a result of Crenshaw's ineptitude, the jury also had before it evidence of his prior convictions, one of which was identical to one of the crimes charged.   As both parties acknowledge, a competent attorney would have sought bifurcated proceedings had he decided a challenge of the priors was the appropriate tactic.   In addition, counsel would have objected to the introduction of Crenshaw's prior armed robbery for impeachment purposes.   As discussed earlier, the trial court may well have ruled it inadmissible pursuant to Evidence Code section 352.   We are forced to conclude the admission of such evidence, when coupled with the admission of Crenshaw's prior assault with a deadly weapon conviction, may well have been critical factors in convincing the jury of Crenshaw's guilt.15

DISPOSITION

The judgment is reversed.

I respectfully dissent.   I would affirm the judgment.

I

BIFURCATED PROCEEDINGS

I have serious reservations about accepting People v. Bracamonte, 119 Cal.App.3d 644, 174 Cal.Rptr. 191 as the law in California despite People v. Martinez, 175 Cal.App.3d 881, 221 Cal.Rptr. 258 and People v. Tipton, 160 Cal.App.3d 853, 206 Cal.Rptr. 821.  Bracamonte admittedly reversed the well established rule of prior Court of Appeal decisions consistently upholding the validity of the unitary procedure.  (119 Cal.App.3d p. 652, 174 Cal.Rptr. 191.)   But, it is of interest to me that subsequently, in People v. Cheri, 127 Cal.App.3d 280, 179 Cal.Rptr. 423, the same court, though reciting that Cheri's motion to bifurcate the proceeding was denied and he admitted the priors, made no mention that the denial of the motion was erroneous under Bracamonte, its prior decision.

The majority in People v. Tipton, 160 Cal.App.3d 853, 206 Cal.Rptr. 821, the first to give dignity to Bracamonte, held that the bifurcated procedure articulated in Bracamonte survived Proposition 8.   However, the merits of the underlying case (Bracamonte) were not put in issue by the People, and the Tipton majority neither dealt with its vitality nor addressed its merits.   Recently, a divided court in People v. Martinez, 175 Cal.App.3d 881, 221 Cal.Rptr. 258, held that the trial court erred in ruling defendant could be impeached by a prior robbery and, citing Bracamonte and Tipton, that it compounded the error by declaring that defendant's motion for a bifurcated trial on the robbery enhancement would be denied if he elected to testify.   I share with the dissenting justice in Martinez his doubts about the need for bifurcation at all.  (Pp. 897–900, 221 Cal.Rptr. 258.)

As conceded by the majority, not all appellate courts have followed Bracamonte, for example, People v. Trujillo, 154 Cal.App.3d 1077, 202 Cal.Rptr. 832 challenged head-on the merits of Bracamonte and rejected it as correct and binding authority.   Finding appellant's final contention to be unmeritorious, the Trujillo court said, “Relying upon the recent attempt in People v. Bracamonte (1981) 119 Cal.App.3d 644, 650 et seq. [174 Cal.Rptr. 191] to ‘overrule’ the holdings of every other appellate court in this state, including our own, he urges that when he declined the trial court's offer to hear his constitutional objections to his prior convictions outside the presence of the jury, it was incumbent upon the court to recall unaided, Bracamonte's then recent, and most novel, holding and, forsaking all others, bow thereto by bifurcating proceedings, sua sponte.   We cannot agree.  [¶] It is doubtful that a true factual question appropriate for a jury's resolution has ever arisen with respect to a charged prior term of imprisonment.   An accused either is the person who was so imprisoned or he is not.   Not only will he and his counsel entertain no doubt on this score, fingerprints, photographs and official documents resolve any rational dispute on the point beyond cavil.   Any debate concerning the constitutionality of the underlying convictions or the nature of the offenses involved therein, present legal, not factual issues as to which a jury's opinion will be quite irrelevant in any event.  [¶] As a consequence, except in those rare instances where a defendant has simply insisted upon exposing his felonious past to a jury, there appears never to have been a need even to consider bifurcated proceedings․”  (Pp. 1090–1091, fns. omitted.)

In the instant case, the prosecution submitted to the trial court a four page document from the Department of Corrections listing Crenshaw's name, photograph and fingerprints as proof of his prior conviction.   No contrary evidence was adduced.

II

WAIVER OF COUNSEL AND REQUEST FOR SELF–REPRESENTATION AND REQUEST TO WITHDRAW WAIVER OF COUNSEL

I also depart from the holding of my colleagues that denial of Crenshaw's request to withdraw his waiver of counsel was error.   The record clearly demonstrates that (1) Crenshaw's waiver of counsel and request to represent himself were properly granted, and (2) the trial court properly exercised its discretion in refusing to permit Crenshaw to again change his mind midtrial.

A. Waiver of Counsel Proper

On the day of trial, and when the cause was called at 9:30 a.m., defendant appeared with the public defender and moved to relieve him and represent himself in trial.   Crenshaw told the court he felt more secure and more competent to conduct his trial than a lawyer, and that he was then prepared to proceed to trial.   Inquiring into Crenshaw's background, the court asked what it was that made him feel competent to conduct his own trial before a jury against the prosecutor;  defendant answered, “Well, I just feel at this time, I feel much more secure with myself at this time;  that's all.   I rather just take a chance with myself than someone else.”   Satisfied defendant knew the charges, the court questioned him at length and advised him of the pitfalls and dangers of self-representation, it was unwise, and the foolishness of one acting as his own lawyer which, defendant said, “wouldn't be no problem.”   Defendant told the court he is “a high school G.E.D. graduate,” and an A.B.M. security officer doing regular security work for which he took training—“the power of arrest course and received my license through Sacramento.   I am a licensed security guard.”   Asked if he felt this was sufficient to conduct his own trial, defendant replied, “Well, at this time I feel that is the only choice because I really don't have no more time to spare with the courts because I am trying to get back with my family, and the only way—if I were to cancel this lawyer out I would have to waive time for another lawyer and I really don't have time.”   Questioned further, defendant repeated, “I am trying to get back to my family the quickest way as possible, and I feel I could win this case if I were to represent myself.”

Crenshaw told the court he was well aware of the defense in this case, knew he had a good defense and knew how to present it, he had counseled with his attorney and he felt he was much more competent to conduct his own trial.   The prosecutor and the court explained in detail possible sentences on conviction and the effect of the special allegations;  he responded he had looked into all of that, and was aware of the possible punishment.   The court concluded:  “I think I have covered all of this and I think the record is clear that Mr. Crenshaw has been advised of what he is risking in this matter by acting as his own attorney.   Mr. Crenshaw has now indicated he is more competent.”   Advised of the two prior robbery convictions alleged and the enhancement of sentence on count II because of it, defendant was asked, “With all of that, you do understand and you still feel you want to be your own attorney?” to which defendant answered, “Yes.”   In granting the motion, the court said, “At this time, Mr. Weil [public defender], reluctantly I am relieving your office from representing Mr. Crenshaw” whereupon, counsel turned over to defendant all discovery materials, including copy of documents showing defendant's incarceration in the California State Corrections System.

The foregoing dispels any notion, now advanced by appellant, that he did not know substitute counsel was an option.   Crenshaw always maintained that he felt more competent than a lawyer to conduct his trial;  that he would feel much more secure with himself—“I rather just take a chance with myself than someone else.”   He made it very clear he did not want a lawyer—the public defender or appointed counsel or privately retained counsel—but wanted to represent himself because he thought he could do a better job.   It is even clearer that he knew he could have substitute counsel but rejected that option when he said he wanted to get back to his family and did not want to take the time required for another lawyer to prepare for trial—“if I were to cancel this lawyer out I would have to waive time for another lawyer and I really don't have time ․ I feel I could win this case if I were to represent myself.”   Nothing indicates this was not Crenshaw's free choice knowing he could have other counsel.   Thus, further inquiry into his dissatisfaction with the public defender would have been meaningless.   When he decided he could represent himself no longer, it was one of those alternatives he chose when he told the court he wanted to hire a lawyer.1

B. Denial of Request to Withdraw Waiver of Counsel Proper.

Defendant had represented to the court he was ready for trial thus, the jury was sworn and chosen, the prosecutor made his opening statement and put on the stand his sole witness, the victim, Mrs. Price.   She had concluded her testimony and the prosecutor was about to rest his case when just before the noon recess, defendant spoke up:  “I think I will have to hire a lawyer in this matter.”

“THE COURT:  Mr. Crenshaw, this is very fine.   You have gone through the whole thing, and at this point are you trying to delay this matter?   The court tried very hard this morning, and you were well prepared.   You didn't want to follow the tactics of your own attorney.  [¶] And at this time in the middle of the trial you say that you think you have to hire an attorney?

“THE DEFENDANT:  Yes, I would rather hire an attorney to represent me.   I kind of overdid it as far as trying to represent myself.

“THE COURT:  I think we covered that this morning.   That is why we did it on the record, very clearly.

“Mr. Crenshaw knew what he was charged with;  Mr. Crenshaw was advised of what he was facing;  and Mr. Crenshaw said that he felt competent, he knew what his defense was going to be.   Mr. Crenshaw knew all about it.

“We haven't been in this trial for half an hour.   I think you have been pulling this to delay this matter.   You haven't been candid with the court and you are being dishonest.   I tried very hard this morning, and at this time I am going to deny your request.”

Citing People v. Elliott, 70 Cal.App.3d 984, 139 Cal.Rptr. 205, People v. Cruz, 83 Cal.App.3d 308, 147 Cal.Rptr. 740, and People v. Hill, 148 Cal.App.3d 744, 196 Cal.Rptr. 382, the majority hold the trial court abused its discretion in denying the request in that it failed to adequately consider the Elliott criteria (70 Cal.App.3d at pp. 993–994, 139 Cal.Rptr. 205).   A review of the record convinces me that, indeed, the trial court considered all of the Elliott factors, and more, and the record reflects this;  and that on the totality of the circumstances it reasonably exercised its discretion in denying the request.  (People v. Smith, 112 Cal.App.3d 37, 50–51, 169 Cal.Rptr. 108;  People v. Smith, 109 Cal.App.3d 476, 484, 167 Cal.Rptr. 303.)

At the outset, the context in which Crenshaw's request was made and considered by the court is far different than that in which the court in Elliott, Cruz and Hill was required to act.   FIRST, the granting of Crenshaw's pro. per. status and the denial of his request for relief from his waiver of counsel were almost one continuous proceeding occurring within a two hour period and before the same judge.   Without question, when she denied the request, she had in mind the lengthy colloquy she had with Crenshaw earlier that morning when he sought to represent himself.   In Elliott the request was made several days after defendant had been granted pro. per. status, in Cruz and Hill, six days.   SECOND, Crenshaw did not request reappointment of the public defender, as in Elliott and Cruz, or appointment of counsel, as in Hill but made it clear to the court he wanted to “hire” an attorney.   I cannot translate his only statements in this area—“I think I will have to hire a lawyer” and “I would rather hire an attorney to represent me”—as does appellant and the majority, into a request for appointed counsel.   In Elliott the estimated delay was ten days, in Cruz, three weeks, in Hill, five days.   The time necessarily involved for one in custody, who has no attorney in mind, to retain private counsel, for new counsel to prepare for trial, for the court to reset the cause and for retrial (appellate counsel conceded a retrial was inevitable) is inestimable.   That private counsel had to be retained was a significant factor in People v. Smith, 112 Cal.App.3d 37, 169 Cal.Rptr. 108.   THIRD, Crenshaw waited until he had heard all of the People's evidence before he made his move.   Similar, are People v. Smith, 109 Cal.App.3d 476, 485, 167 Cal.Rptr. 303 (request made after prosecutor completed case and rested) and People v. Smith, 112 Cal.App.3d 37, 48–49, 169 Cal.Rptr. 108 (request made on second trial day after witness testified);  dissimilar, are Elliott (request made before opening statement), Cruz (motion made prior to assignment of cause for trial) and Hill (request made prior to trial).   FOURTH, Crenshaw's reason, without explanation or elaboration, was simply that he “kind of overdid it as far as trying to represent myself.”   He did not specify what problem, if any, existed.   In Cruz the defense of unconsciousness was too complex for defendant to handle, and in Elliott, defendant did not know how to deal with an amended information and the new issue of uncharged offenses.   FIFTH, is the added element of, what the trial court deemed to be bad faith.   Coming at the time it did and under the circumstances, the trial court felt the request was made solely to delay the trial—Crenshaw had not been “candid” and he was being “dishonest”.   The court concluded, as did the dissenting justice in People v. Cruz, 83 Cal.App.3d 308, 147 Cal.Rptr. 740, that defendant was playing a “ ‘game’ ” in which “defendants are manipulating the system to their advantage” (p. 334, 147 Cal.Rptr. 740.)   Good faith, indeed, is a significant factor.  (See People v. Smith, 109 Cal.App.3d 476, 485, 167 Cal.Rptr. 303;  People v. Smith, 112 Cal.App.3d 37, 51, 169 Cal.Rptr. 108.)

The record reflects that the trial court gave the Elliott factors adequate consideration.  “ ‘While the consideration of all of these criteria is obviously relevant and helpful to a trial court in resolving the issue, they are not absolutes, and in the final analysis it is the totality of the facts and circumstances which the trial court must consider in exercising its discretion as to whether or not to permit a defendant to again change his mind regarding representation in midtrial.’  (People v. Smith, supra, 109 Cal.App.3d 476, 484, 167 Cal.Rptr. 303.)”  (People v. Smith, 112 Cal.App.3d 37, 50–51, 169 Cal.Rptr. 108.)

(1) Crenshaw had no previous history of changing from self-representation to counsel and in his desire to change, but in the circumstances here, that fact has little significance.  “[W]hile the prior history of a defendant indicating that he has previously requested changes from self-representation to counsel representation may be important in denying the request if the history demonstrates a proclivity to do so, the fact that a defendant has no such history does not preclude the court from denying the request if other factors mitigate against it.   Like the other criteria, it is only one factor of several which the court must consider in exercising its discretion in a reasonable way.”  (People v. Smith, 109 Cal.App.3d 476, 484, 167 Cal.Rptr. 303, emphasis added.)   Crenshaw only once asked for counsel, and his desire to hire an attorney arose immediately after hearing all of the People's evidence, he did not like what he heard and wanted to start over and let a lawyer retry the case.  (2) The only reason defendant gave for his request was general, “I kind of overdid it”;  he did not elaborate, explain or give any other reason for wanting a lawyer.  (3) The stage of the proceedings was especially troublesome to the court.   Crenshaw waited until the People had put on all of their evidence before making his move.  (4) As for disruption and delay, the court was convinced defendant's motivation was “to delay this matter”—that he was counting upon the inevitable delay involved in hiring counsel, preparing for retrial, resetting the cause and retrial.  (5) As to the likelihood of defendant's effectiveness were he to continue to act as his own attorney, the court commented that he said he was “well prepared,” knew the charges and knew his defense and how to present it.   True, a defendant representing himself cannot give himself as competent a representation as a trained lawyer, but here there were no surprises, and defendant did not claim any;  nor did he claim to be unprepared;  the record discloses nothing new or unexpected introduced into the case and no unusual or complex actions he had to meet (People v. Smith, 112 Cal.App.3d 37, 50, 169 Cal.Rptr. 108);  the prosecution had only one witness, and she had concluded her testimony;  the People's case was straightforward—defendant robbed Mrs. Price with a gun—defendant has not claimed he had a defense other than the one he presented;  and the defense was not complex and one defendant could not handle, but consisted of a simple denial and claim that he did not rob the victim, she gave him the money he was accused of stealing in return “for some sex.”   That later defendant changed his mind and wanted to challenge impeachment by the prior is hardly significant here because it was not a matter before the court at the time it was required to act upon the request at issue.

Finally, the trial court said Crenshaw was being “dishonest,” that his real motivation was to delay the proceedings.   I, too, suspicion that he waited to find out what kind of a case the prosecutor had against him and realizing it would likely convict him, made his request for several reasons—to gain time, to take two bites of the apple and to lay a foundation for reversible error.   To reverse his conviction under these circumstances is to permit Crenshaw to manipulate the system, a tactic that does little to enhance the dignity and integrity of our system of justice.   I am unwilling to permit him a preview of the People's case against him and, not liking it, to withdraw his waiver of counsel and start over someday in the future.   In People v. Smith, 109 Cal.App.3d 476, 167 Cal.Rptr. 303, after distinguishing Elliott and Cruz in which the requests were made before any evidence was taken, the court said, “It was not until that point in time that defendant apparently became aware of the fact that the prosecution had presented a strong case and that he would more than likely be convicted.   Considering these facts, the trial court could reasonably conclude, as can be inferred from the record, that defendant did not in fact make his requests in good faith, but rather with the hope that it might lay the ground work for a subsequent reversal on appeal.”  (P. 485.)

I have no difficulty, on the record before this court, in concluding that the trial court, acting within reasonable parameters, did not abuse its discretion in ruling on Crenshaw's request.

III

DENIALS OF CONTINUANCES PROPER

At 2 p.m., after the prosecutor rested, defendant for the first time asked for a continuance.   The court said it was under the impression he was ready to proceed, and defendant responded, “Yes, I was” but “I would like time to get a proper defense.”   The court responded that earlier he had represented he was ready for trial and had no problems, and now that he was in trial, it could not delay the matter.  “We can't start and stop trials ․  And you gave me your assurance that you understood fully.   At this point I must deny your motion for a continuance.”

Asked if he had his witness, defendant answered, “Well, I did have him here but I excused him.   I don't need him”;  asked if he was going to use that witness, defendant said “No.”   THE COURT:  “Then you are ready to proceed?” and defendant said “Yes,” and took the stand.   After the defense rested, and the next morning, defendant again asked for more time.   The court reminded him he had told it the day before, he was ready to go to trial, he had proceeded with his defense and it could not “in the middle of a trial keep going flip-flop flip-flop.”   Defendant said he needed more time because he was “really not prepared ․ I am ready for trial, but I would still need time to prepare.”   Queried further by the court, defendant said “I feel I should have got enough time since everything was just through over here so fast.”   The court told him it had asked him repeatedly if he was ready for trial and he said he was.   Crenshaw then filed a section 170.5, Code of Civil Procedure motion challenging the judge.   In rebuttal the prosecutor recalled Mrs. Price who denied she gave defendant any money or had sex with him.   Defendant called her as his own witness and asked several questions.   Asked by the court if he wished to call rebuttal witnesses, Crenshaw requested a “continuation” so he could contact them.   Reminded by the court that all of this had been previously discussed, the request was denied, but the court recessed to permit defendant to telephone his witnesses, and ordered the bailiff to assist him commenting, “He [defendant] has had all night to do it, and he has had yesterday afternoon;  we were not in session yesterday afternoon, and if Mr. Crenshaw was serious about this he has had an opportunity to make his calls.”   Defendant was also reminded that he told the court the day before that he had his witness there but had released him.   The silent record as much supports the fact defendant made no calls as it does that he called but was unsuccessful.

It is clear to me that defendant's repeated requests for continuance, all the time insisting he was ready for trial, were simply delaying tactics.   This is apparent in his statement he wanted time to contact his witnesses, and never making any attempt to do so even when given the opportunity.   The trial court felt his request for more time to get witnesses was not in good faith, and I am inclined to agree.   I note that after denial of his request to withdraw waiver of counsel, Crenshaw seemed to embark upon a course of dilatory strategy making requests for continuance and to hire counsel at every turn of the proceedings.   Even a month later when defendant again appeared without counsel for probation and sentence, he continued his litany of complaints and requests.   I have no doubt that Crenshaw was playing the “delaying” game which no court should countenance.   A review of the underlying facts demonstrates that the trial court was well within its discretion in denying his motions for continuance.

Appellant's remaining contentions I have examined and find to be without substance.   I would affirm the judgment.

FOOTNOTES

1.   Crenshaw had also been found guilty of assault with a deadly weapon.   This conviction likewise appeared on the abstract of judgment submitted to the jury.

2.   Proposition 8 amended the California Constitution by adding section 28, subdivision (f) to article I.   It provides in relevant part:  “Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.”

3.   The People contend the issue in Tipton was not the binding authority of Bracamonte, but rather, did Bracamonte survive Proposition 8.   Thus, it contends, the court did not address the propriety of the Bracamonte principles themselves.   However, we would not have reached the issue of Bracamonte's continued survival in light of Proposition 8 if we deemed the principles developed in that case inappropriate.   Moreover, after we determined Bracamonte survived Proposition 8, we concluded the failure to grant the defendant's request for a bifurcated trial was prejudicial error.   We remanded the matter for a jury trial on the issue of the prior conviction.  (People v. Tipton, supra, 160 Cal.App.3d at pp. 856–857, 206 Cal.Rptr. 821.)

4.   In People v. Yurko (1974) 10 Cal.3d 857, 863–864, 112 Cal.Rptr. 513, 519 P.2d 561, the Supreme Court held before a trial court can accept a defendant's admission of prior convictions the court must inform the defendant of the constitutional rights he is waiving by such an admission and the precise increase in penalty which might result.

5.   We note the People incorrectly rely on People v. Shippey (1985) 168 Cal.App.3d 879, 214 Cal.Rptr. 553 for the standard of reversal in this context.   In Shippey, the trial court failed to inform the defendant of the Yurko requirements prior to accepting the defendant's admission of his previous misdemeanor conviction.   The appellate court held the lower court erred in this regard and stated “reversal is required only where it is reasonably probable that, if advice had been given, appellant would have denied the prior conviction and it would have been found not to have occurred.”  (Id., at p. 889, 214 Cal.Rptr. 553.)   Since in cases in which a defendant admits his prior convictions, the jury does not receive evidence of these priors, there is no cause, as in the Bracamonte context, to examine the prejudicial effect admission had on the jury.

6.   In devising this approach, the court was guided by the California Supreme Court decision in People v. Windham (1977) 19 Cal.3d 121, 137 Cal.Rptr. 8, 560 P.2d 1187.  Windham established the procedure a trial court must follow when a defendant makes an untimely request to proceed pro. per.  (Id., at pp. 128–129, 137 Cal.Rptr. 8, 560 P.2d 1187.)

7.   We note the court did not ask Crenshaw to elaborate on or specify his reasons for his feelings of inadequacy.

8.   Crenshaw contends the trial court was not even aware it had the discretion to grant his motion.   However, we do not read the record to support this argument.

9.   We recognize the trial court's granting of Crenshaw's request for pro. per. status and the denial of his request for assistance of counsel occurred within a brief time span.   However, the nature of a court's inquiry with respect to the former is completely different than what is required of a court in addressing the latter.   Thus, while we find no error in the procedure followed by the court in addressing Crenshaw's motion for self-representation, we find this of little assistance in assessing the propriety of the court's decision to deny Crenshaw's request for counsel.

10.   For instance, the court made no inquiry into Crenshaw's past history in this regard.   Moreover, while the court was convinced Crenshaw was making this request for the purpose of delay, it in no way discussed the extent of disruption or delay which might be expected if it granted Crenshaw's request.

11.   In addition, as discussed earlier, the trial court's failure to instruct Crenshaw as to his right to a bifurcated proceeding was not prejudicial because Crenshaw did not object to the admission of his prior robbery conviction for impeachment.   A competent counsel would certainly have objected to the introduction of this evidence and may well have convinced the trial court not to permit its introduction into evidence due to its prejudicial effect.

12.   We agree with the People there was no evidence in the record that Crenshaw would have been willing to have his original counsel reinstated.   However, we do not believe this case was of such difficulty that a competent counsel would have required a lengthy delay to prepare.   More importantly, if the trial court had conducted the type of inquiry required in this context, we would not be forced to speculate on review as to the type of delay that would have been necessary.

13.   We are mindful that as defendants have become more aware of the procedural rights available to them, the potential for manipulation of the judicial process has increased.   We are especially sensitive to the possibilities of manipulation by pro. per. defendants.   Nonetheless while aware of that problem, we cannot countenance the trial court's actions in the case at bar.   A trial court cannot exercise its discretion before it has fully considered the factors relevant to its decision.   As discussed in detail, we have concluded the trial court failed to do this.   Moreover, by failing to adequately assess the factors relative to the issue before it, and thus failing to establish an adequate record, a trial court assists manipulative defendants by making an adequate review of the trial court's decision impossible and reversal probable.

14.   Since the error in the case at bar would result in reversal under either the Chapman or Watson standard, we need not decide which standard is the appropriate one.   We note however both People v. Elliott, supra, 70 Cal.App.3d at p. 998, 139 Cal.Rptr. 205 and People v. Hill, supra, 148 Cal.App.3d at p. 762, 196 Cal.Rptr. 382 deemed the Watson standard the correct one.

15.   Because we reverse Crenshaw's conviction on this basis, we do not reach other challenges to the conviction raised by Crenshaw.

1.   Crenshaw's desire to represent himself in preference to having legal representation is reflected in his statement to the court after the jury verdicts were returned.   The court told him it hoped that in the future he would let the experts handle matters for him, and defendant replied:  “It would have probably went the same way, anyway.   I rather me do it.”

JOHNSON, Associate Justice.

THOMPSON, J., concurs.

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