PEOPLE v. ALLAH (1979)

Defendant has appealed from his conviction of one count of first degree robbery with the use of a firearm and one count of second degree robbery.

In an information filed by the District Attorney's office of Los Angeles County, appellant was charged with one count of first degree robbery using a firearm (Pen.Code, § 211), one count of assault with a deadly weapon (Pen.Code, § 245(b)) and one count of grand theft from the person (Pen.Code, § 487, subd. 2). During deliberations, the jury informed the court that it was unable to reach a verdict concerning count II, assault with a deadly weapon, and following inquiry by the court, a mistrial was declared as to that count. Count II was ultimately dismissed by the court. The following verdicts were returned by the jury: guilty of robbery in the first degree, the taking of a field interview card from the person of Officer Livesey, with the use of a firearm, as charged in count I; guilty of robbery in the second degree, the taking of a firearm from Officer Livesey, as charged in count I; not guilty of grand theft as charged in count III.

Defendant's Contentions on Appeal

1. The trial court erred in denying defendant's motions for self-representation.

2. The court erred in accepting jury verdicts finding defendant guilty of two counts of robbery when he was in fact charged with only one count of robbery.

Factual Summary

Defendant was arraigned on July 19, 1977, and the public defender was appointed to represent him. Trial was set for August 25. On August 25, at defendant's request, the trial was continued to September 19, 1977. On September 19, the date set for trial, the matter was trailed by the court from day to day until October 5, 1977. On October 5, it was transferred to department H “forthwith” for trial. In department H the matter was trailed until October 6, on which date it was called for trial. At that time, the defendant made a motion to proceed in propria persona, and the matter was remanded to department J for hearing of that motion. On October 7, the defendant's motion was heard in department J.

The defendant informed the court that he wished to have the public defender relieved as counsel and to proceed to represent himself. When asked for his reasons, defendant answered: “The reason that I desire to represent myself is that being under the name and color of Allah that it is my duty to represent myself in all matters as I am a sovereign entity and have authority of myself in all matters of my feelings in life, and that Counsel, as well as he does know the law and the rudiments of the law, Penal Code, State of California, federal laws, is not versed in Islamic laws, laws of the divine laws, laws of the Bible, laws of the holy Koran, which the United States were founded on.”

When the court informed the defendant that even lawyers and judges involved in legal matters retain counsel to represent them, the defendant responded: “But they are all not coming on the premise that I am. They are not at all in the name of Allah and bound by those laws. When dealing with—I am dealing—I am a man of one nation dealing with another nation.”

The judge asked defendant: “Why haven't you prepared for trial inasmuch as you decided that you want to represent yourself?” The defendant answered: “I have prepared in a sense that you possibly do not understand. I first prepared in my heart and my mind. Because of the calendar and the backup of the calendar, I have been sitting downstairs for many, many days without pencil of some kind, papers, and some very—conversation down there of negative elements. They are not conducive to preparing a case.”

Defendant also requested a continuance of 30 days to allow him to prepare for trial.

After extended discussion with the defendant, the court concluded: “It appears to the court that the Information was filed in July of 1977, that the alleged offense occurred in June of 1977, that there has been a delay of this case until the present time, … that Wednesday this matter was sent out for trial, and the motion for pro per was made in the trial department. And then the matter was referred back to this court. We do have a courtroom available for trial of this case today, and the court will find that the motion for pro per status is not timely made, and the motion will be denied.”

The prosecutor observed that, based on the defendant's responses to the court's questions, it appeared that the defendant was not knowingly and intelligently waiving his right to counsel. The court responded: “Well, it appears to me that the defendant is not making a knowing and intelligent waiver of his right to counsel based upon the grounds that he has given me, and the Court will so find.”

On October 7, the matter was transferred to department D for trial “forthwith.” The record on appeal contains no docket or other record of what transpired in department D on October 7. The court's docket for October 11 contains the following entry: “Trial continued from 10-7-77 is called for hearing.” Defense counsel then requested that the matter be remanded to department J for a hearing under Penal Code section 1368 to determine whether defendant was mentally competent to stand trial. That request was granted and the matter was returned to department J. In department J, defense counsel moved for a determination of defendant's present mental competency. The court expressed doubt concerning such competency, suspended proceedings, and ordered Drs. Coodley and Crahan to examine defendant concerning defendant's mental competency to stand trial. The matter was continued to November 1, 1977, for trial on the issue of defendant's competency.

On November 1, the court reviewed the psychiatric reports, pursuant to stipulation of the parties, and determined that defendant was competent to stand trial. At the outset of those proceedings, defendant reiterated his motion to proceed in propria persona.¹ Following determination of competency, the court addressed itself to defendant's pro. per. motion. The court inquired of defense counsel and the prosecution and learned that both were ready for trial on the issue of guilt. The defendant advised the court that he would request a continuance of approximately 60 days to prepare for trial. The court then reviewed the history of the case and concluded: “The Court is still of the opinion that the motion is not timely made and that by reason of the fact this case has been pending for such a long period of time and the defendant did not see fit to make his motion for pro per status until after the matter had been sent down for trial, the Court feels that continuing the matter for another sixty days would be unduly prejudicial and for that reason the motion will be denied again.” The matter was sent out for trial the following morning.

The matter proceeded to jury trial and evidence was introduced to show that defendant, having been pursued by Officer Livesey, struggled with him, took the officer's gun from his holster, and fired the gun at the officer, striking him in the leg. The defendant ran from the officer and, shortly thereafter, returned and stood over the officer with the gun in his hand. Defendant took from the officer's pockets his (defendant's) car keys and a field identification card on which the officer had noted information concerning the defendant.

The First Motion for Self-Representation

Appellant contends that the court erred in denying his initial motion for self-representation, and that such denial deprived him of his constitutional right to act as his own counsel. In Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, the United States Supreme Court held that the right to defend a criminal action in pro se is guaranteed by the Sixth Amendment to the Constitution.

Following that decision, in People v. Windham (1977) 19 Cal.3d 121, 137 Cal.Rptr. 8, 560 P.2d 1187, the California Supreme Court addressed the issue of whether a motion for self-representation, made during the third day of trial, was properly denied. The Windham court held that the granting of a motion to dismiss counsel and to proceed in propria persona is not constitutionally mandated if the motion was made during trial. (People v. Windham, supra, at pp. 127-128, 137 Cal.Rptr. 8, 560 P.2d 1187.) Such a mid-trial motion is addressed to the discretion of the trial court.

In the exercise of that discretion, the court is to consider such factors as: “… 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.” (Windham, at p. 128, 137 Cal.Rptr. at p. 13, 560 P.2d at p. 1191.)

The Windham ruling that a mid-trial request was untimely does not resolve the issue presented in this case, where the request was made on the date trial was set to begin, before a jury was selected. However, in a footnote in the Windham opinion, the Supreme Court discussed this eventuality, as follows: “Our imposition of a ‘reasonable time’ requirement should not be, and, indeed, must not be used as a means of limiting a defendant's constitutional right of self-representation. We intend only that a defendant should not be allowed to misuse the Faretta mandate as a means to unjustifiably delay a scheduled trial or to obstruct the orderly administration of justice. 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 ․” (People v. Windham, supra, 19 Cal.3d at 128, fn. 5, 137 Cal.Rptr. at 12, 560 P.2d at 1191.)

This language, although dictum, indicates that a motion made the day before trial begins, need not necessarily be granted, but is addressed to the discretion of the trial judge.

In the instant case, the matter had been trailed in the master calendar department from day to day from September 19 to October 5, 1977. On the latter date, it was transferred to department H forthwith for trial. The defendant's first motion for pro. per. status and for a 30-day continuance were not made until the matter was transferred into the trial court.

Our research has disclosed only one case (People v. Hall (1978) 87 Cal.App.3d 125, 150 Cal.Rptr. 628), discussing the fact situation presented here, where neither jury selection nor any portion of trial had yet begun when the motions for self-representation and continuance were made. In Hall, the motion for self-representation was made on the morning of trial, just as the prosecutor and the defense attorney were about to begin jury selection. This court concluded in that case that the defendant's motion for self-representation, coupled with a motion for a 30-day continuance, was not made within a reasonable time prior to trial and that the denial thereof was a proper exercise of the trial court's discretion. Although there are factual distinctions between the instant case and the Hall matter (as will be discussed infra), the Hall conclusion that a motion made on the morning of trial is addressed to the discretion of the trial court, has equal application in this case.

Appellant argues that, even if the motion made on the date set for trial would ordinarily be deemed untimely, this case is distinguishable by virtue of the fact that appellant informed his attorney of his desire to represent himself some time prior to trial. During the argument on the defendant's motion to proceed in propria persona, defense counsel informed the court that “during this time” (some time between August 25 and September 19, 1977) he had spoken to the defendant concerning a possible disposition of the matter, and the defendant had informed him that it was his desire to proceed in pro. per. Defense counsel explained that he did not bring the matter to the court's attention because at the time he and the District Attorney's office were negotiating a possible disposition of the action. Settlement negotiations had broken down during the week prior to October 7; the defense attorney informed the defendant of the District Attorney's refusal to consider the defendant's offer, and the defendant informed his attorney that he wished to proceed to trial and that he still wished to proceed in pro. per. Appellant argues that he should not be penalized for the failure of his attorney to bring his request to the attention of the court. However, the record reflects that the defendant was personally present in court on 14 separate occasions between the time of his arraignment and the time of his motion to proceed in pro. per. At no time did he bring his concerns to the attention of the court until the matter was sent out for trial.

The court made no inquiry of the defendant as to why he had not made his motion personally at any time prior to the trial date. During oral argument in this court, counsel for defendant speculated that defendant may have remained silent so long as settlement negotiations were being conducted, inasmuch as he was interested in representing himself only in the event that the matter proceeded to trial. It is equally possible that defendant did not address the court personally because of his belief that he had no right to do so, but must rely on his attorney to speak for him. Had the court inquired of defendant concerning his reasons, we might have been provided with a record with which we could determine the impact of defense counsel's failure to move on defendant's behalf.

Although we agree that a defendant may rely on his attorney to bring to the attention of the court any motions he wishes to make in his case (People v. Tucker (1964) 61 Cal.2d 828, 832, 40 Cal.Rptr. 609, 395 P.2d 449), it must have been apparent to defendant that his counsel was not doing so. Absent some compelling reason which does not appear from the record before us, defendant should have personally brought his motion to represent himself at the trial of this matter to the attention of the court when he became aware his attorney had failed to do so. “‘If the party for any cause becomes dissatisfied with his attorney the law points out a remedy. He may move the Court for leave to change his attorney, …’ [citation].” (Magee v. Superior Court (1973) 34 Cal.App.3d 201, 213, 109 Cal.Rptr. 758, 765.)²

A trial judge faced with a request by the defendant to represent himself on the eve of trial, should inquire as to the reasons, if any, why a more timely motion was not made. Had that been done in this matter we would then have a record by which to determine if there was a reasonable excuse for the delay in pursuing his request to represent himself and whether the trial judge exercised his discretion without abuse. However, inasmuch as the court concluded that defendant did not have the capacity to make a knowing and intelligent waiver of counsel, a determination of timeliness would have made no difference in the ultimate decision on this first motion.

Appellant argues that his motion for self-representation was timely under People v. Tyner (1977) 76 Cal.App.3d 352, 143 Cal.Rptr. 52. The Tyner court held that it was error to deny defendant's motion to proceed in propria persona made on the morning trial was scheduled to begin. However, defendant in Tyner announced to the court that he was ready to proceed with trial and no continuance was requested. The Tyner court held that since the motion “… was not accompanied by any request for a continuance, its grant would not have obstructed the orderly administration of justice.” (People v. Tyner, supra, at p. 355, 143 Cal.Rptr. at p. 53.) That case is clearly distinguishable from the instant case wherein defendant requested a 30-day delay in the trial in order to prepare.

Defendant's request to proceed in propria persona was untimely, not having been made within a reasonable time prior to the commencement of trial. He therefore did not have an absolute right to represent himself. The issue remaining for determination is whether the trial court abused its discretion in denying the motion.³

The Windham court, 19 Cal.3d at page 128, 137 Cal.Rptr. 8, 560 P.2d 1187, set out the factors which should be considered by a trial court when confronted with an untimely request that a defendant be allowed to discharge his attorney and proceed in propria persona. The court should weigh the reasons for the request, the quality of counsel's representation, the length and stage of the proceedings, the disruption and delay which might be expected if the request were granted, and defendant's prior proclivity to substitute counsel.

In the instant case, the court inquired of the defendant as to the reasons for the request, and learned that his desire to discharge the public defender was based on his concern that the public defender did not understand Islamic law. In denying defendant's motion the court noted the number of months which had gone by between the filing of the information and the request for pro. per. status and continuance, pointed out that the parties were ready for trial and a courtroom was available, and concluded that the motion was not timely. Based on the information presented to the trial judge, we cannot agree with appellant that the court abused its discretion in denying his motion for self-representation.

Additionally, in response to an inquiry by the prosecutor, the court agreed that he did not believe defendant had made a knowing and intelligent waiver of his right to counsel. As set out earlier in this opinion, many of the responses given by defendant to the court's inquiry were of such a nature that they could have given rise to a doubt as to defendant's mental capacity to understand and waive his right to counsel. This conclusion is supported by the fact that, on October 11, 1977, (four days after the denial of defendant's pro. per. motion) defense counsel requested that the court conduct a hearing to determine whether defendant had the present mental capacity to stand trial. Defendant was ultimately deemed mentally competent to stand trial, but that fact is not dispositive of the question of his capacity to waive counsel. As stated in People v. Tracy (1970) 12 Cal.App.3d 94 at pages 102-103, 90 Cal.Rptr. 375 at pages 379-380: “When a doubt has arisen as to a defendant's sanity, and that fact has been judicially declared, we think it equally contradictory, inconsistent, and incongruous to permit him to discharge his attorney and represent himself at the hearing where the issue of his sanity is to be determined․ [¶] Provided other tests are met, a mentally competent defendant may waive his right to counsel and represent himself. (People v. Terry, 224 Cal.App.2d 415, 418, 36 Cal.Rptr. 722; …) The mental competence to waive the right to counsel is not to be equated with the competence to stand trial under Penal Code, section 1368. It is one thing to be mentally competent to stand trial with the assistance of counsel and quite another to be mentally competent to proceed without that assistance.” To the same effect see People v. Lopez (1977) 71 Cal.App.3d 568, at page 573, 138 Cal.Rptr. 36, at page 39, where the court said: “If there is any question in the court's mind as to a defendant's mental capacity it would appear obvious that a rather careful inquiry into that subject should be made—probably by way of a psychiatric examination. It would be a trifle embarrassing to get half way through a trial only to discover that a court has determined that a mentally deficient or seriously mentally ill person has been allowed to make a ‘knowing and intelligent’ decision to represent himself.”

Our analysis of the court's ruling on this issue is controlled by the same standard as that which governs the issue of timeliness, that is, whether the court abused its discretion. In People v. Salas (1978) 77 Cal.App.3d 600, 605, 143 Cal.Rptr. 755, the court analyzed a denial of a request for self-representation as follows: “Prior to the Faretta decision, the California Supreme Court stated: ‘The determination of the trial judge as to defendant's competence to waive counsel involves an exercise of discretion by the trial judge which in the absence of an abuse of discretion will not be disturbed on appeal.’ (People v. Robles (1970) 2 Cal.3d 205, 218, 85 Cal.Rptr. 166, 466 P.2d 710 …) We perceive nothing in Faretta which changes this rule.”

We have a somewhat limited record on which to base an analysis of the court's ruling on this issue, since the court did not conduct an inquiry for the express purpose of determining whether defendant had the mental capacity to waive counsel. The court's inquiry (which incidentally produced responses from the defendant casting doubt on his mental capacity) was directed toward determining whether the motion was timely made. Had inquiry first been made concerning defendant's capacity to waive counsel, a determination that he did not have the requisite mental capacity would have made the timeliness ruling unnecessary.

Whenever it appears to a trial court that a defendant may not have the mental capacity knowingly and intelligently to waive counsel, inquiry into that subject should be made immediately. Where the facts indicate to the trial judge that defendant cannot intelligently waive counsel, the judge has a duty to deny defendant's motion, whether or not timely made. (See Faretta v. California, supra, 422 U.S. at p. 835, 95 S.Ct. 2525.)

In this case, the judge first ruled on the timeliness of defendant's motion, and then made a finding as to defendant's lack of capacity to waive counsel.

Nonetheless, we conclude that the trial judge, faced with the defendant's apparent lack of capacity to make a knowing and intelligent waiver of counsel, the lateness of the request for substitution of defendant in propria persona, and the requirement of an additional delay of the trial for a period of 30 days, properly denied defendant's first motion to represent himself.

Second Motion for Self-Representation

On November 1, 1977, the date set for hearing on the motion under Penal Code section 1368, the court found that defendant was mentally competent to stand trial.

As previously noted in this opinion (see fn. 1) when the matter was called for hearing on the issue of defendant's mental competency to stand trial, defendant immediately reasserted his motion for self-representation. Following a determination that the defendant was mentally competent (within the meaning of Pen.Code, § 1368) to stand trial and assist counsel in his defense, the trial court again considered defendant's motion to relieve counsel and proceed in pro. per. In addition, defendant requested a continuance of 60 days to prepare for trial.

The court inquired: “Mr. Concha, [the public defender] when will you be ready for trial? MR. CONCHA: I am ready at this time.” The court observed: “This case has now been pending before the Court since approximately July 19th. This is about three and a half months. People ready for trial? MR. MARIN: [the prosecutor] “Yes, People are ready.”

The trial judge concluded that the motion was not made within a sufficiently reasonable time prior to trial, that the matter was ready for trial, a trial court was available, and a 60-day delay would be “unduly prejudicial.”

The following day, November 2, 1977, the matter was sent out to Department H for trial, and trial actually commenced on November 3, 1977.

In assessing the propriety of the trial court's ruling on defendant's second motion for self-representation, we must again first determine whether that motion was timely. (People v. Windham, supra, 19 Cal.3d at p. 128, 137 Cal.Rptr. 8, 560 P.2d 1187.) California law is unequivocal with respect to what constitutes an untimely motion. The Windham court quoted with approval from United States v. Denno (2d Cir. 1965) 348 F.2d 12 at page 15, as follows: “Once the trial has begun with the defendant represented by counsel, however, his right thereafter to discharge his lawyer and to represent himself is sharply curtailed. There must be a showing that the prejudice to the legitimate interests of the defendant overbalances the potential disruption of proceedings already in progress, with considerable weight being given to the trial judge's assessment of this balance. [Citations.]”

The Windham court then held that a mid-trial request for self-representation was not timely and was addressed to the sound discretion of the trial judge. However, the Windham court did not adopt the entire rule of the Denno case. The Denno court holds that “[t]he right of a defendant in a criminal case to act as his own lawyer is unqualified if invoked prior to the start of the trial.” (United States v. Denno, supra, at p. 15.) Windham holds, rather, that the right of self-representation is unconditional if asserted “within a reasonable time prior to the commencement of trial.” (People v. Windham, supra, 19 Cal.3d at p. 128, 137 Cal.Rptr. at p. 12, 560 P.2d at p. 1191.)

In assessing whether the time within which the motion was asserted is “reasonable,” Windham instructs us to look to the cause for the lateness of the request. (Windham, supra, at p. 128, fn. 5, 137 Cal.Rptr. 8, 560 P.2d 1187.) In the instant case, although the request was made on November 1, at a time when counsel for both parties announced that they were ready for trial, that date was the first possible opportunity, following the denial of his first motion, for the defendant to present his request to the court. When defendant appeared in court following the denial of his first motion for self-representation, on October 11, 1977, criminal proceedings were suspended, pending a determination of defendant's competence to stand trial. During the time that proceedings were suspended, the court could not have entertained defendant's motion for self-representation, even had defendant been able to present a written motion to the court well in advance of the new trial date. (See People v. Renteria (1960) 183 Cal.App.2d 548, 551-552, 6 Cal.Rptr. 640.) Obviously when there was a possibility that defendant would be deemed mentally incompetent to stand trial, the court could not have ruled that defendant nonetheless had the capacity to waive counsel. (See People v. Tracy, supra, 12 Cal.App.3d at pp. 102-103, 90 Cal.Rptr. 375.)

In addition, no determination concerning how defendant should be represented at trial could properly be made until it was decided whether defendant would be tried at all. Therefore, once defendant's mental competency to stand trial had been determined on November 1, 1977, defendant was then presented with the first opportunity to make a motion which could be considered by the court.

To hold that a motion for self-representation made by a defendant at his earliest opportunity is untimely when that “earliest opportunity” happens to be shortly before trial, would effectively thwart a defendant's constitutional right to proceed in propria persona as established in Faretta v. California, supra, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. In this case, the motion was made two days prior to the actual commencement of trial. Assuming the motion had been made on the eve of trial, it would not have been untimely under the circumstances. Timeliness is tested by whether the motion was made within a reasonable period prior to trial. In this instance, that reasonableness must be judged by a recognition that factors outside defendant's control prevented him from making the motion any earlier. Proceedings were suspended because defendant's counsel expressed, and the court declared, a doubt as to defendant's mental capacity to stand trial. Defendant himself engaged in no disruptive or obstructive behavior in an effort to delay proceedings.

We hold, therefore, that where defendant makes a request to discharge counsel and proceed in propria persona at the earliest possible opportunity, that request, unless made after trial commences, is timely. “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 has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be.” (People v. Windham, supra, 19 Cal.3d at p. 128, 137 Cal.Rptr. at p. 12, 560 P.2d at p. 1191.)

Because defendant's motion was denied on the basis of timeliness, no inquiry was made by the court into defendant's ability to make a knowing and intelligent waiver of his right to counsel. However, the record reflects that both psychiatrists who examined defendant pursuant to the Penal Code section 1368 proceedings, concluded that defendant was both competent to stand trial and able to conduct his own defense in the absence of counsel. We cannot presume, therefore, in spite of the court's earlier expression of doubt on this issue, that the court would have concluded at the second hearing that defendant could not knowingly and intelligently waive counsel had that issue been expressly presented to the court. The court should have made full inquiry into defendant's understanding of the dangers and disadvantages of self-representation (Curry v. Superior Court (1977) 75 Cal.App.3d 221, 226-227, 141 Cal.Rptr. 884) before deciding whether the motion was timely asserted.

The fact that defendant requested a 60-day continuance in order to allow him to prepare for trial does not alter the decision in this case. A defendant appearing in propria persona must be given a reasonable opportunity to prepare a defense. (People v. Maddox (1967) 67 Cal.2d 647, 652, 63 Cal.Rptr. 371, 433 P.2d 163; People v. Mendez (1968) 260 Cal.App.2d 302, 306, 67 Cal.Rptr. 31.) “The denial of a proper request for a continuance to prepare a defense constitutes an abuse of discretion and a denial of due process.” (People v. Cruz (1978) 83 Cal.App.3d 308, 325, 147 Cal.Rptr. 740, 750.) As explained in Cruz, supra, wherein defendant requested both the right to represent himself and a continuance to prepare for trial, “… certain realities of pro. per. status must be taken into account in deciding to grant or deny a continuance in order to prepare a defense.” (People v. Cruz, supra, at p. 325, 147 Cal.Rptr. at p. 750.) In the instant case, defendant could hardly have been expected to be prepared for trial on November 1 when (a) his previous motion to proceed in propria persona had been denied, and (b) pending determination of his mental competency, he did not know whether he would actually proceed to trial at all.

Therefore, both the request for self-representation and the request for continuance were timely and properly made.

We realize that in this case we have imposed some additional burdens on trial judges confronted with a motion for self-representation. In the hope that it may be of some assistance to the bench and bar, we here summarize some of the requirements and suggestions set forth in Windham and its progeny for the guidance of trial judges faced with a motion for self-representation:

1. The trial court should determine whether the defendant's election to represent himself is voluntary and intelligent. (People v. Windham, supra, 19 Cal.3d 121, 128, 137 Cal.Rptr. 8, 560 P.2d 1187.)

(a) If the court entertains any concern as to defendant's capacity to waive counsel, this issue should be resolved first. (Supra, p. 360.)

(b) Inform the defendant of the dangers and disadvantages of self-representation. For example, advise him that a decision to proceed without a lawyer is always unwise; that he will receive no special favors from the court but must abide by the court rules; that the competition is unfair because of the expertise of opposing counsel. (People v. Lopez, supra, 71 Cal.App.3d at pp. 572-573, 138 Cal.Rptr. 36.)

(c) Make inquiry concerning the defendant's intellectual capacity, which may include questions as to his education. (People v. Lopez, supra, at p. 573, 138 Cal.Rptr. 36.) Determine whether defendant is literate and thus able to handle exhibits. (Curry v. Superior Court, supra, 75 Cal.App.3d at p. 228, 141 Cal.Rptr. 884.)

(d) If the court has any doubt concerning defendant's mental competence, a psychiatric examination may be desirable. (People v. Lopez, supra, 71 Cal.App.3d at p. 573, 138 Cal.Rptr. 36.) If a psychiatric evaluation is ordered, it should be limited to the defendant's capacity to waive counsel which is not the same as his capacity to stand trial assisted by counsel. (Curry v. Superior Court, supra, 75 Cal.App.3d at p. 227, 141 Cal.Rptr. 884.)

(e) Inform him that he has the right to counsel, including appointed counsel if he is indigent.

(f) Inform him of the possible outcome of the trial, including potential maximum punishment.

(g) Inform him that he could lose his right to self-representation if it is abused during the course of the trial.

(h) Finally, defendant should be advised that he will not be allowed to claim incompetence of counsel on appeal should he be convicted. (People v. Lopez, supra, 71 Cal.App.3d at p. 574, 138 Cal.Rptr. 36.)

2. Assuming defendant is found competent to waive his right to counsel, if the request was made in reasonable time prior to commencement of trial, it must be granted. (People v. Windham, supra, 19 Cal.3d at p. 128, 137 Cal.Rptr. 8, 560 P.2d 1187.)

3. If the request for self-representation is made during trial, the court shall inquire, sua sponte, into the reasons for the request. Among the factors to be considered by the court are:

(a) The quality of counsel's representation;

(b) Defendant's prior proclivity to substitute counsel;

(c) The reasons for the request;

(d) The length and stage of the proceedings;

(e) The disruption or delay which could be caused by a granting of the motion. (People v. Windham, supra, at p. 128, 137 Cal.Rptr. 8, 560 P.2d 1187.)

4. If the request is made on the day of trial or the day before trial is scheduled to begin, the decision whether to grant the request remains within the discretion of the trial court. (People v. Windham, supra, at p. 128, fn. 5, 137 Cal.Rptr. 8, 560 P.2d 1187; People v. Hall, supra, 87 Cal.App.3d at p. 132, 150 Cal.Rptr. 628.)

(a) The judge should ask defendant why the motion for self-representation was not made at an earlier time; (Supra, at p. 358.)

(b) The court should inquire of defense counsel whether he is ready to proceed. If counsel for defendant requests a continuance, based upon a showing of good cause, a finding that defendant's motion to represent himself is untimely would be unreasonable. (People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5, 137 Cal.Rptr. 8, 560 P.2d 1187.)

Because we have concluded that defendant in the instant matter was deprived of his constitutionally mandated right to self-representation, a reversal is required. We agree with the court in People v. Tyner (1977) 76 Cal.App.3d 352 at page 356, 143 Cal.Rptr. 52, at page 54 that the “erroneous deprivation of the timely asserted unconditional right of self-representation in a criminal trial is reversible error per se.” The deprivation of the constitutional right to self-representation cannot be reviewed under the harmless error standard.

The Error in Jury Verdicts

Although the conviction is being reversed on other grounds, we discuss appellant's final contention for the assistance of the court in the unlikely event that a similar problem should arise on retrial.

Appellant contends that the trial court erred in accepting from the jury verdicts which convicted appellant of two counts of robbery although he was charged with only one count of robbery. As explained earlier in this opinion, the jury returned a verdict finding the defendant guilty of robbery in the first degree with the use of a firearm as alleged in count I and guilty of robbery in the second degree without the use of a firearm as alleged in count I. It would appear from the record that the jury was provided with two typed verdict forms for count I, one to be used if the jury found him guilty of robbery of the field identification card, and one to be used if the jury found him guilty of robbery of the firearm. The jury signed and returned both forms. Both verdicts were entered in the judgment of the court.

The verdicts were erroneous. Defendant was charged with only one count of robbery. The Attorney General forthrightly concedes that the court should not have divided count I charging robbery into two separate crimes.

The judgment of conviction is reversed.

I concur in the majority's result in reversing defendant's judgment of conviction. But I differ with the majority in the reasoning by which this result is reached.

In my view, defendant's first request to represent himself was timely—not untimely as suggested by the majority. In effect, the majority holds that defendant's request to his counsel that defendant desired to represent himself was without meaning or effect since counsel did not convey the request to the court. I disagree with this result. Counsel's failure to bring the matter to the court's attention should not work to the detriment of a defendant's constitutional right to be his own counsel. An attorney acts as the agent for his client. I cannot accept the majority's view that People v. Windham (1977) 19 Cal.3d 121, 137 Cal.Rptr. 8, 560 P.2d 1187, should be interpreted so narrowly that a defendant's expression to his counsel—made a reasonable time before the date of trial—that defendant desires to represent himself, cannot be deemed a timely request under the circumstances presented. The circumstances presented are that defendant, finally, on the date of trial, was required to speak up personally to the court because of the failure of his counsel to communicate to the court prior to the trial commencement date defendant's self-representation desires.

In the case at bench, the trial court was made aware—when defendant spoke up personally on the date set for trial—that trial counsel had been informed of defendant's desire to represent himself a considerable period prior to trial. In my view, the trial court abused its discretion in holding that defendant's first self-representation motion was “untimely” under the Windham holding.

Thus, it was stated in Windham: “We hold therefore that in 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.” (Windham, supra, 19 Cal.3d 121, 127-128, 137 Cal.Rptr. 8, 12, 560 P.2d 1187, 1191; fn. omitted.) But Windham does not set forth how that “unequivocal” assertion must be made.

Windham also added: “Our imposition of a ‘reasonable time’ requirement should not be and, indeed, must not be used as a means of limiting a defendant's constitutional right of self-representation. We intend only that a defendant should not be allowed to misuse the Faretta mandate as a means to unjustifiably delay a scheduled trial or to obstruct the orderly administration of justice.” (Id. at p. 128, fn. 5, 137 Cal.Rptr. at p. 12, 560 P.2d at p. 1191.) (Emphasis in original.)

In light of this language of Windham, the majority's holding in the case at bench that defendant's first self-representation motion was untimely cannot be justified. It is directly contrary to Windham's view that the “imposition of a ‘reasonable time’ requirement should not be, and, indeed, must not be used as a means of limiting a defendant's constitutional right of self-representation.” (Windham, supra, 19 Cal.3d 121, 128, fn. 5, 137 Cal.Rptr. 8, 12, 560 P.2d 1187, 1191.) I fail to see how the majority's holding that defendant's first self-representation motion was untimely in the face of the Windham court's view that, by the imposition of a reasonable-time-before-trial requirement for the making of the self-representation motion, the court intended “only that a defendant should not be allowed to misuse the Faretta mandate as a means to unjustifiably delay a scheduled trial or to obstruct the orderly administration of justice.” (Id. at p. 128, fn. 5, 137 Cal.Rptr. at p. 12, 560 P.2d at p. 1191.) Surely no such misuse of the Faretta mandate occurred under the circumstances presented here.

In addition, it is significant that Windham did not set forth the necessity of any specific-type motion. All that Windham holds is that a defendant should make “an unequivocal assertion of that right [the right of self-representation] within a reasonable time prior to the commencement of trial.” (Windham, supra, 19 Cal.3d 121, 128, 137 Cal.Rptr. 8, 12, 560 P.2d 1187, 1191; fn. omitted.) (Emphasis added.) Has not a defendant made “an unequivocal assertion” of his right to self-representation by unequivocally relating his position to his attorney within a reasonable time prior to the commencement of the trial as required by Windham? I think so.

It is my view that if, at the beginning of trial, a defendant makes a personal request to be his own attorney and he has previously stated such request to his counsel, who has failed to bring it to the attention of the trial court, the trial court has no discretion to exercise, but is compelled to grant the request by virtue of the only appropriate reading of Faretta and Windham.

I do not understand the logic of the majority's position that defendant's second motion for self-representation was “timely” while rejecting the first motion as being “untimely.” The fact that prior proceedings involving defendant's competency to stand trial were undertaken prior to the time defendant's second self-representation motion was made would not seem to have prevented defendant from making his personal motion during an appearance in court while the competency proceedings were in progress. If defendant's failure to speak up before he personally made his first motion for self-representation was “untimely,” logic would seem to dictate that the majority holding of “untimeliness” on defendant's first motion would compel a holding that defendant's second motion for self-representation was likewise “untimely” because made only a day or two before the start of the trial when he could have spoken up during his appearances in court at the competency proceedings.

FOOTNOTES

1.  The record reflects the following colloquy:“MR. CONCHA: Yes, Your Honor, this is the trial as to the 1368 issue?“THE COURT: Yes.“MR. CONCHA: Yes.“THE DEFENDANT: To further my motion again for pro per—“THE COURT: Does the defendant agree that the court may determine the question of the defendant's present mental competency by consideration of the doctor's reports?“MR. CONCHA: Yes, Your Honor.”

2.  Although we conclude (1) that defendant should have advised the court personally of his desire to proceed in propria persona in a timely manner, absent some proof that his failure to do so was based on his reliance on counsel to speak for him, and (2) that the defense attorney's failure to do so does not excuse the defendant, it would have been better practice for the defendant's attorney to have informed the court, at the earliest possible opportunity, of his client's expressed desire to represent himself.

3.  Appellant contends that People v. Wilks (1978) 21 Cal.3d 460, 468, 146 Cal.Rptr. 364, 578 P.2d 1369, “appears to remove even the limited discretion allowed by the court in Windham.” In Wilks, on the date set for trial, the prosecutor announced that he was not ready to proceed. Defendant then made a motion to represent himself, which motion was granted. On appeal defendant argued that the court erred in initially granting his motion for self-representation and in subsequently failing to appoint counsel sua sponte during the trial. We fail to understand how the Supreme Court's observation that defendant's motion for self-representation was timely made can operate to remove the discretion granted to trial judges in Windham.

ALARCON, Associate Justice.

KINGSLEY, Acting P. J., concurs. JEFFERSON, Associate Justice, concurring.