P. v. Faultry

Filed 12/21/09 P. v. Faultry CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant was convicted following a jury trial of two counts of first degree robbery (Pen. Code,  212.5, subd. (a)),[1] three counts of second degree robbery ( 212.5, subd. (c)), and assault with a firearm ( 245, subd. (a)(2)), with associated enhancements for personal use of a firearm ( 12022.53, subd. (b)), personal discharge of a firearm ( 12022.53, subds. (c), (e)(1)), and personal use of a revolver ( 12022.5, subd. (a)(1)), in the commission of the offenses. In this appeal he argues that the trial court erred by denying his motion to represent himself at trial, and claims that the jury committed misconduct by conducting an experiment with physical evidence offered at trial. We conclude that the trial court, on this record, improperly denied defendants timely Faretta[2] motion, and therefore must reverse the judgment.

STATEMENT OF FACTS

Defendant was convicted of a series of robberies committed in San Francisco within the span of a few days in early November of 2005.[3] We will separately recite the evidence pertinent to each of the robberies, according to the established standards of appellate review of a judgment of conviction, which require that we view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Wilson (2008) 44 Cal.4th 758, 806; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

The Robbery of Said Hasan at the Hilltop Market (Count 5)

At 12:45 p.m. on November 4, 2005, Said Hasan was working in the Hilltop Market he owned on Broderick Street in San Francisco. A man Hasan had never seen before entered the store and asked for change for $20. The man left the store after Hasan gave him the change he requested, but returned about 15 minutes later. The man approached the counter with a box of cookies in one hand and a small silver revolver in the other. He pointed the gun at Hasan and demanded all the money in the cash register. Hasan gave the man $250 in cash from the cash register, along with ATM receipts, food stamps and checks. The man then directed Hasan to the back of the store. After the man left the store Hasan called the police.

Hasan described the robber as a Black man, between six feet and six feet, three inches tall, 280 to 300 pounds, 28 to 35 years old, wearing a black beanie over half of his face, and a white T-shirt. He viewed a videotape lineup on November 14, 2005, and selected number 2, defendant, as similar to the person, but not 100 percent. Hasan testified at the preliminary hearing in August of 2006, that defendant was not the guy who robbed him. At trial, Hasan described defendant as the same height, but darker and 20 pounds heavier than the robber. He testified: I cannot say 100 percent, but I have a deep feeling he is not the man who robbed me.

The box of cookies left by the robber on the counter was not touched by anyone until it was processed by a crime scene investigator. A latent fingerprint taken from the cookie box was subsequently identified as a match for defendants left thumb print.

The Robberies and Assault with a Firearm of Jong Kook Kim and Chung Sook Kim at the Drink Liquor Store (Counts 6 through 8).

Jong Kook Kim (Kim) and his wife Chung Sook Kim owned Drink Liquor, a grocery and liquor store on Second Avenue in San Francisco. Just before 5:00 on the afternoon of November 4, 2005, a large, tall Black man appeared in the store, took a Snapple from the refrigerator, and placed it on the counter. He said something that Kim and his wife did not understand, then pulled out a small gun and shot at the floor. Kim told his wife to open the cash register and give the money to the man. Mrs. Kim placed all the money from the cash register into a paper bag along with the Snapple, and gave it to the man. The man then walked out of the store, turned left, and headed toward Balboa Street and Third Avenue.

Steven Jue, the owner of an aquarium shop next to Drink Liquor, who was on the street in front of his store talking with a customer, testified that he noticed the African-American man walk past him going westbound toward Balboa and Third. He described the man as mid-twenties, five-ten, five-eleven, about 280 pounds, wearing a white T-shirt, black pants, and a black do-rag on his head.

Kim and his wife followed the man out of the store. They encountered Jue, who characterized them as very hysterical, and told him they had been robbed. They all watched as the man walked to the corner, then turned around and proceeded to a car parked on the street. Jue testified that the car was a late 70s Chevy Caprice Classic, bluish-greenish color, with tinted windows and an out-of-state license plate, the first three numbers of which were 733. Mrs. Kim asked Jue to remember and write down the license number of the car. The man got into the car and drove away.

Kim returned to the store to look for evidence of the gunshot. He discovered a small piece of metal on the floor that was not present before the robbery, which he later gave to a police officer.

Kim and his wife subsequently viewed a video lineup: Kim identified defendant as the robber by placing an X on subject number 2; Mrs. Kim wasnt able to make an identification. Neither Kim nor his wife identified defendant as the robber at trial, although Mrs. Kim testified that defendant might be him. Jue identified defendant in the video lineup, at the preliminary hearing, and at trial.

Kim and his wife and Jue were taken to a police vehicle impound yard to separately look around and see if they recognized the car driven by the robber. They all recognized and pointed out a blue 80s Chevy Caprice with an out-of-state plate that read 773LSS that had been towed to the impound lot from the Westside Housing Projects on Post and Broderick after defendants arrest there. When the Caprice was seized the police found a black do-rag underneath the seat, a small knife under the drivers seat back rest, and indicia related to defendant and his home address at 2011 Delta View, Bay Point.

The Robbery of Myles Kilroy (Count 3)

Myles Kilroy was working as a cab driver for Yellow Cab Company when he received a dispatch at 10:15 a.m. on November 7, 2005, for an address on Ingalls Street in the Bayview Hunters Point area near Candlestick Park. When Kilroy reached Ingalls Street he noticed a man running toward the cab. The man got in the right rear passenger seat of the cab, and asked Kilroy to go down to the next block and hang a right. After Kilroy made two right turns as directed, the man asked him to stop the cab. Kilroy pulled over to the side of the road in front of a residence. He then turned around and realized that the passenger had pulled out a gun and was pointing it at him. The man ordered Kilroy to hand over his money. Kilroy extracted his billfold from his breast pocket and gave it to the man. Kilroy was also ordered to give the man his wallet, cell phone, and car keys, and he did so. The man returned the wallet and cell phone, saying, I dont want this shit.  He then walked away, but as he did so he threw the keys to the cab in the street.

Kilroy described the man who robbed him as African-American, late 20s to early 30s, a big guy, at least 200 pounds, who wore a black do-rag tied tightly around his head. Three days later, Kilroy viewed a video lineup. He selected subject number 2, defendant, as someone who strongly resembled the person who robbed him, and subject number 5, a person who lightly resembled the person Kilroy remembered. Kilroy testified in court that defendant looks a lot like the robber; he was fairly certain of his identification.

The Robbery of Joel Lipkins (Count 4)

At 10:50 on the morning of November 7, 2005, cab driver Joel Lipkins arrived at an address on Velasco Street in the Sunnydale Projects in San Francisco to pick up a fare. Lipkins discovered there was no such address, but a minute later heard a man yell, Pull around the corner. My wife will be out in a minute. The man then got into the back seat of the cab and directed Lipkins around the corner. Lipkins testified that the man was Black, 30 to 35 years old, about 6 feet tall, and 300 pounds.

After Lipkins drove around the corner the man pulled out a gun and said, Give me all your money.  Lipkins reached in his left side shirt pocket and gave him all of the money. The man also demanded Lipkinss wallet. Lipkins replied that he did not keep money in his wallet. The man said, Okay,  took the money and got out of the cab. From outside the cab the man told Lipkins, Give me your keys. Lipkins complied, whereupon the man took the cab keys and threw them down the street. The man then entered an old, maroon or brown boxy-type car, like an Oldsmobile, Pontiac or Buick, and drove away.

Lipkins viewed a video lineup on November 10, 2005. He placed a mark on Number 2, defendant, as the man who robbed him. He identified defendant at the preliminary hearing and again at trial as the one that did it. He had no question of the accuracy of his identifications. Lipkins also identified three photographs taken by the automated FareView camera system mounted in his cab: one of himself and the robber, another of just the robber, and a third of the robber with a gun. Lipkins testified that he was positive the photos were accurate and depicted the man who robbed him the morning of November 7, 2005.

The Arrest of Defendant and the Police Investigation

Defendant was arrested by plain clothes officers of the San Francisco Police Department on the evening of November 8, 2005, at the West Side Housing Development on Baker Street in San Francisco. He was wearing a white do rag, a white T-shirt, and blue jeans. Defendant gave the officers his name and a residence address of 2011 Delta View Lane in Bay Point, the same address specified on the registration documents for the blue Chevrolet Caprice found near the location of defendants arrest. He was subsequently questioned at the robbery detail interview room. When defendant was shown a photograph taken by the FareView camera system in Lipkinss cab, he remarked, Thats me. An examination of the records of a cell phone seized from defendant revealed that numerous calls were made from that phone to the Yellow Cab Company on the morning of October 29, 2005,[4] and again on the morning of the robberies of cab drivers Lipkins and Kilroy.

DISCUSSION

Defendant complains that the trial court erred by denying his Faretta motion to represent himself. He asserts that the Faretta motion was timely made at least 26 days before trial could possibly have begun, and was unequivocal. Defendant also submits his Faretta motion was not made for the purpose of delaying the trial or otherwise obstructing the proceedings. He therefore argues that the court was required to conduct the requisite inquiry into the voluntariness of his request, and grant him the right of self-representation upon a finding that his waiver of the right to counsel was knowing and voluntary. He points out that the erroneous denial of the constitutional right to self-representation is prejudicial per se, and necessitates reversal of the judgment. (People v. Sohrab (1997) 59 Cal.App.4th 89, 99.)

Before discussing the issues of this case, a few introductory remarks regarding the Faretta decision need mentioning. The case holds an accused has an independent constitutional right of self-representation, guaranteed by the Sixth Amendment. The notion of self-representation was acknowledged and appreciated during colonial times and is integral to the Bill of Rights. (Faretta, supra, 422 U.S. 806, 833834.) When an accused, after asserting an unequivocal desire for self-representation, is compelled to accept counsel, the constitutional error taints the criminal trial process to the core. But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyers training and experience can be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to believe that the law contrives against him. . . . The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. (Id. at p. 834.)

Of course the exercise of this right of self-representation must be knowingly and intelligently manifested, hence the trial court record will establish the choice was made with  eyes open. [Citation.] (Faretta, supra, 422 U.S. 806, 835.) This election must be unequivocal, a feature the reviewing court can find from review of the trial court colloquy with the defendant. And the application must be timely, which in the Faretta case was found to be weeks before trial. (Ibid.; see also id. at p. 808 [Also [s]everal weeks . . . but still prior to [the] trial the hearing on self-representation occurred.].)

A narration of the protracted procedural history of the present case is also essential to our review of the trial courts ruling on the Faretta motion. The crimes were committed in November of 2005, and the information was filed on August 23, 2006. Thereafter, the case proceeded unhurriedly as pretrial motions were heard, trial dates were repeatedly set, and numerous continuances were granted at the request of both the prosecution and defense. Defendant made a Marsden[5] motion to relieve his appointed counsel, Phong Wang, that was heard and denied on November 17, 2006. By April of 2007, in light of defendants complaints with his appointed counsel the public defenders office decided to substitute public defenders rather than face a formal Faretta motion or another Marsden motion. Mark Jacobs was substituted as counsel of record for defendant. Additional continuances of the scheduled trial dates were granted.

By January 15, 2008, a date set for trial, defense counsel again requested a continuance due to a scheduling conflict with another trial and the need to present defense motions. The case was continued to the next day.

On January 16, 2008, defendant appeared, still represented by Jacobs, and moved for release on his own recognizance and for severance of charges. A possible negotiated disposition was also discussed, which included another pending robbery case charged against defendant in Contra Costa County. Defendant then stated: Id like to file a Faretta motion so I could represent myself. Defendant explained that he wasnt too happy with his two appointed attorneys, and wanted a better deal of 20 years with the potential for halftime served based on sentence credits. Defendant added that he faced a lot of time, and would rather study and present the case himself. He also requested his own investigator to look into the case and run the errands necessary to discover information, as well as additional access to the law library. When the court inquired as to the time necessary for defendant to prepare for trial, he replied at least four or five months. The court asked defendant for the reason for the delay in seeking self-representation. Defendant responded that as the case began getting close to going to trial he realized that he was still not happy with a different person representing him, and felt he could better represent himself.

Defense counsel advised the court that the other case to which he was assigned was a no time-waiver trial on calendar the next day, and would take no more than about two weeks to complete. Counsel announced that he was prepared to begin trial in the present case immediately upon the conclusion of his other trial.[6]

The trial court acknowledged to defendant that he had a constitutional right to represent himself, but denied the Faretta motion for lack of timeliness. The court expressed concern with the enormous delay in the case that was already more than two years old, and was ready to start trial within a matter of weeks. Defendant asserted that he was not aware of his right to represent himself until a month ago, and was not trying to inconvenience the court. Defense counsel interjected that he had not advised defendant of his right of self-representation. The court found, in light of the pertinent factors articulated in the Windham case,[7] including the disruption and delay that would attend according defendant the right to represent himself, that the motion is untimely.

The court proposed to hear the severance motion on January 23d, then put the matter over until February 4th to start trial if defense counsel was available. The case ultimately proceeded to trial with defendant represented by counsel, but not until May 6, 2008, due primarily to the courts scheduling conflicts.

The starting point for our inquiry into the denial of the Faretta motion in the present case is recognition of the fundamental rule that the federal constitutional right of self-representation is unconditional, but not self-executing. (Moon v. Superior Court (2005) 134 Cal.App.4th 1521, 1529; see also People v. Bradford (1997) 15 Cal.4th 1229, 1365.) Criminal defendants have the right both to be represented by counsel at all critical stages of the prosecution and the right, based on the Sixth Amendment as interpreted in Faretta, supra, 422 U.S. 806, to represent themselves. [Citation.] However, this right of self-representation is not a license to abuse the dignity of the courtroom or disrupt the proceedings. [Citation.] Faretta motions must be both timely and unequivocal. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 10011002; see also People v. Roldan (2005) 35 Cal.4th 646, 683.) The right of self-representation is absolute, but only if knowingly and voluntarily made and if asserted a reasonable time before trial begins. (People v. Doolin (2009) 45 Cal.4th 390, 453.)  A trial court must grant a defendants request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial. . . . [Citation.] (People v. Stanley (2006) 39 Cal.4th 913, 931932.)

We are presented in this appeal only with the issue of timeliness.[8] [T]he timeliness of ones assertion of Faretta rights is critical. (People v. Halvorsen (2007) 42 Cal.4th 379, 433.) If a request for self-representation is unequivocally asserted within a reasonable time before the commencement of the trial, and if the assertion is voluntarily made with an appreciation of the risks involved, the trial court has no discretion to deny it. (People v. Bloom (1989) 48 Cal.3d 1194, 1219; see also People v. Halvorsen, supra, at p. 434; People v. Dent (2003) 30 Cal.4th 213, 217.)  When a motion for self-representation is not made in a timely fashion prior to trial, self-representation no longer is a matter of right but is subject to the trial courts discretion. [Citation.] In exercising this discretion, the trial court should consider factors such as  the quality of counsels representation of the defendant, the defendants prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.  [Citations.] (People v. Jenkins (2000) 22 Cal.4th 900, 959; see also Windham, supra, 19 Cal.3d 121, 128; see also People v. Lawley (2002) 27 Cal.4th 102, 149.)[9]  The reasonable time requirement is intended to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice. [Citation.] (People v. Percelle (2005) 126 Cal.App.4th 164, 175.)

Thus, the first step of our inquiry is a determination of whether defendants [Faretta] motion was made a reasonable time prior to the commencement of trial, a calculation Windham left unresolved. (People v. White (1992) 9 Cal.App.4th 1062, 1071; see also id. at p. 1072.) We construe the California Supreme Courts proclamation in Windham that a timely Faretta request must be asserted within a reasonable time prior to the commencement of trial, to mean precisely what it says: first, that merely because trial has yet to actually commence does not dictate that the request must be considered timely; and second, that the element of a reasonable time prior to trial directs us to consider all of the circumstances surrounding the request. (People v. White, supra, at p. 1073, quoting from People v. Ruiz (1983) 142 Cal.App.3d 780, 791.) The determination of timeliness is not reduced to consideration of  some Pythagorean secret magic of numbers[] . . .  or formula. (People v. White, supra, at p. 1072, citation & fn. omitted.)[10] On appeal, we conduct an independent examination of the record to determine if a Faretta motion has been knowingly, timely and unequivocally asserted. (People v. Doolin, supra, 45 Cal.4th 390, 453; People v. Stanley, supra, 39 Cal.4th 913, 931932.) We undertake our assessment  based on the  facts as they appear at the time of the hearing on the motion rather than on what subsequently develops.  [Citations [and fn.] omitted.] [Citation.] (People v. White, supra, at p. 1072.)

This case is not one that fits neatly into the category of timely or untimely. Although Windhammakes clear that a Faretta motion made after commencement of trial is not timely, it does not state a hard and fast rule delineating when a pretrial motion is timely. (People v. Ruiz, supra, 142 Cal.App.3d 780, 787.) If trial had been definitively set to begin within a few days or perhaps even a week we would likely find the Faretta motion untimely. (Cf. Moore v. Calderon, supra, 108 F.3d 261, 264265; People v. Frierson (1991) 53 Cal.3d 730, 742; People v. Burton, supra, 48 Cal.3d 843, 852; People v. Moore (1988) 47 Cal.3d 63, 7981; People v. Rudd (1998) 63 Cal.App.4th 620, 627628; People v. Douglas (1995) 36 Cal.App.4th 1681, 16881689.) Motions made just prior to the start of trial are not timely. (People v. Scott (2001) 91 Cal.App.4th 1197, 1205; see also People v. Caird (1998) 63 Cal.App.4th 578, 585.)

However, the case before us is factually quite distinguishable. (People v. White, supra, 9 Cal.App.4th 1062, 1073.) While the proceedings languished after the information was filed in August of 2006, with many trial dates set and continued, when the motion for self-representation was made on January 16, 2008, trial had neither commenced nor was imminent. The case was assigned out for trial, but a jury had not been impaneled, and no firm date for the beginning of the trial was set.

The ambiguity surrounding the date of trial is demonstrated by the record of the proceedings which occurred immediately before the Faretta motion. On January 11, 2008, the case was transferred from Department 22 (Master Calendar Department) to Department 28, not for trial that day or on any specified date, but rather for trial forthwith.[11] At the hearing on January 15th, the day before defendants Faretta motion was made, the trial court referred to the transfer from Department 22, and announced that another trial set in Department 28 had settled that morning, so discussion in this case could begin. (Italics added.) The court and defense counsel then mentioned the motions to be filed, which prompted the court to put the matter over to the next day to give counsel a chance to get their motions filed and for her to speak with the master calendar judge about the assignment timing relating to this case. In summary, on January 16th, the motions and possible settlement of the case were discussed, along with defense counsels scheduling conflict and the Faretta issue. The case was further continued to February 4, 2008.

Also, the events and pronouncements of the trial court following the denial of the Faretta motion, while not part of our appraisal of timeliness, at the very least reaffirm the exceedingly indefinite schedule and state of the proceedings when the case first arrived in Department 28 on January 15, 2008, the day before defendant moved to represent himself. When the parties appeared on February 7, 2008, to present the severance motion and consider the psychological evaluation of defendant, the court expressed concern that the case was trailing two other no time waiver trials. Because of that, the court had inquired of the supervising judge in Department 22 to determine if the case should even remain in Department 28. On April 2, 2008, the present case was still trailing one other trial that was not anticipated to be completed until late April, and a defense motion still needed to be resolved.

It therefore appears to us that when defendant presented his Faretta motion neither the court nor the parties had any firm notion of when trial would begin. The date of commencement of trial, although vaguely contemplated to occur on February 4th, was still nebulous and speculative. More than that, serious obstacles to the commencement of trial within a reasonable time remained unsettled. While the dissent suggests that [b]oth counsel were ready to proceed with trial when the Faretta motion was made, that was hardly the situation. (Dis. opn., post, at p. 2.) Only when defense counsel was relieved of the obligation to complete another trial in another department that also had not yet received a set trial date pretrial motions in the present case were resolved, and a courtroom was available, could trial begin as hoped within the next few weeks. The prosecution seemed prepared to proceed, but defense counsel had a calendar conflict and pretrial motions to present.[12] Also, the parties were still in the process of discussing what appears from the record to be quite tentative proposals for a negotiated disposition of the case that included a possible global settlement of charges against defendant in Contra Costa County. Trial was at least weeks away, and contingent upon resolution of other pretrial matters. The rationale behind the rule giving the trial court the discretion to deny an untimely Faretta motion to avoid disruption of an ongoing trial thus is not implicated in this case. (People v. Halvorsen, supra, 42 Cal.4th 379, 434, italics added.)

We recognize that defendant did not expeditiously assert his Faretta rights following the initiation of criminal proceedings. As we have observed, the crimes were committed over two years before the motion was made. The case was filed in August of 2006, and defendant was represented by counsel the entire time the action was pending. He apparently made two Marsden motions, and appointed counsel was substituted once at his instigation. However, nothing in the record suggests that defendant acted for the purpose of obstructing or delaying the proceedings. Defendant stated without contradiction that he was unaware of his right to represent himself until a month ago, and counsel affirmed that defendant had not been advised of his right to self-representation. In response to the courts inquiry, defendant explained the reasons for his failure to pursue the motion earlier: he wasnt happy with the efforts of his first appointed attorney, but thought his substituted counsel would probably be better; as the trial date grew near, defendant realized he was still not happy with a different person representing him, and could represent [him]self better if the case went to trial; and, with the prospect of facing a lot of time in prison he would rather represent himself than place the case in somebody elses hands. Thus, although a palpable delay preceded defendants decision to seek self-representation, it was not unexplained or demonstrated to be based upon improper motives. It is understood that an accused would prefer to be represented by counsel when facing serious charges. The request to represent oneself is often the result of an accuseds disappointment with appointed counsel. The law does not require a defendant to act quickly to exercise the unconditional right to self-representation, only to act within a reasonable time prior to commencement of trial.[13] (People v. Marlow (2004) 34 Cal.4th 131, 146.) And, significantly, the trial court made no finding on the record regarding the issue of obstruction or appellants motivation.

That defendants assertion of Faretta rights was coupled with the request for a continuance, a rather prolonged one at that, does not necessarily render the motion untimely. The California Supreme Court has declared that [w]hen the lateness of the request and even the necessity of a continuance can be reasonably justified the request should be granted. When, on the other hand, a defendant merely seeks to delay the orderly processes of justice, a trial court is not required to grant a request for self-representation without any ability to test the request by a reasonable standard.  (People v. Miller, supra, 153 Cal.App.4th 1015, 10211022, quoting from Windham, supra, 19 Cal.3d 121, 128, fn. 5.) The court in Windham also cautioned that the imposition of a reasonable time requirement should not be and, indeed, must not be used as a means of limiting a defendants constitutional right of self-representation. (Windham, supra, at p. 128, fn. 5, italics omitted; see also People v. Miller, supra, at p. 1021.) We also observe that the trial court failed to properly consider the grounds for the continuance requested by defendant based on the particular circumstances and reasons presented in the case. (See People v. Butler (Dec. 10, 2009, S068230) ___ Cal.4th ___ [2009 Cal. Lexis 12407, *28*29].)

The dissent emphasizes the practicalities of a busy trial court and the disruption of the process that would have resulted from granting defendant the right to represent himself, with the attendant delays and rescheduling of the appearance of witnesses. (Dis. opn., post, at p. 8.) While we point out that nothing in this case was firmly scheduled, so no rescheduling was necessary, considerations of expediency are not of consequence in the present case. A timely Faretta motion cannot be denied because it inconveniences the court or the prosecution. The California Supreme Court very recently reiterated that  [w]hen 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 any other considerations. (People v. Butler, supra, ___ Cal.4th ___ [2009 Cal. Lexis 12407, *18], citation omitted.) A trial courts second guessing of this election is not a valid component of the analysis. (Ibid.) As the law stands and has long stood, if the motion for self-representation is knowingly, unequivocally and timely made, it is in nearly all respects unconditional. (People v. Jenkins, supra, 22 Cal.4th 900, 959; People v. Leonard (2000) 78 Cal.App.4th 776, 784.) If a defendant makes a timely request for self-representation under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525], his right to do so is unconditional and the trial court must grant the request. (People v. Rivers (1993) 20 Cal.App.4th 1040, 1048.) [T]he state may not constitutionally prevent a defendant from controlling his own fate by forcing on him counsel who may present a case which is not consistent with the actual wishes of the defendant.  (People v. Nicholson (1994) 24 Cal.App.4th 584, 595, quoting Windham, supra, 19 Cal.3d 121, 130; see also People v. Rogers (1995) 37 Cal.App.4th 1053, 10571058.) We reiterate that only if the defendant has misused the Faretta mandate as a means to unjustifiably delay a scheduled trial or to obstruct the orderly administration of justice may the motion for self-representation brought at the commencement of trial be denied. (Windham, supra, 19 Cal.3d 121, 128, fn. 5; People v.Miller, supra, 153 Cal.App.4th 1015, 1021.)

The dissent suggests that defendant played the Faretta game,[14] but nothing in the record indicates he intended to delay the proceedings or obstruct the orderly administration of justice. (Cf. People v. Scott, supra, 91 Cal.App.4th 1197, 1203; People v. Rogers, supra, 37 Cal.App.4th 1053, 1057.)[15] And critically, the trial court made no inquiry in the matter or finding that defendant pursued self-representation for any purpose other than his expressed dissatisfaction with defense counsel and a desire to present the case in the manner he considered most advantageous to him. In the assessment of the timeliness of the motion the court did not undertake an adequate examination to determine defendants motives or the reasonableness of his request for a continuance based on his expressed disagreement and discontent with appointed counsel. For instance, the court failed to evaluate defendants present knowledge of the case, any prior review of the evidence he had conducted, or whether he was ready and willing to condition his right to self-representation upon a postponement of the trial for less than the four or five months he suggested.[16] Given the very tentative, unspecified date of the upcoming trial and the cognizable delay that was expected to ensue even if defendant continued to be represented by counsel and which ultimately reached essentially the same time span as the continuance requested by defendant in pro per without a further inquiry by the court or indication of an improper purpose we cannot find that defendants Faretta motion was without reasonable justification. When dealing with a request for self-representation before the commencement of a trial, the judge should conduct an inquiry that assesses the timeliness issue for appellate purposes. [O]ne reason for requiring the court to undertake such an inquiry is to ensure that the record permits meaningful appellate review. (People v. Rivers, supra, 20 Cal.App.4th 1040, 1048.) Since the exercise of a Sixth Amendment right is implicated, the trial court has an obligation to develop a colloquy that reflects an effort by the trial judge to fairly assess defendants request; appropriately reflect the courts analysis of that request; and, significantly, develop a sufficient record on appeal . . . in order to sufficiently evaluate alleged abuses of discretion when motions for self-representation are denied. (Windham, supra, 19 Cal.3d 121, 129, fn. 6.) That did not happen here. Once the defendant mentioned his need for a continuance, conversation with him essentially stopped. Appropriatecolloquy will generally facilitate an evaluation of the sincerity of the underlying reasons for the Faretta motion and the necessity of any requested continuance. (Cf. People v. Ruiz, supra, 142 Cal.App.3d 780, 789790.)

Taking into account the entire procedural context of the case we are persuaded that the motion was timely. Defendant acted at least two to three weeks before the most optimistic possible trial date, and four months before trial eventually occurred. (People v. Dent, supra, 30 Cal.4th 213, 221; People v. Jenkins, supra, 22 Cal.4th 900, 959, 961 [where the defendants first Faretta motion made in a capital case during hearings on pretrial motions to be resolved before the commencement of jury selection, was found timely, but the second, made after the jury had been selected and the prosecution had delivered its opening statement, was left to the trial courts sound discretion].) Motions for self-representation made several weeks before even definitively scheduled trials have been found to be within the requisite   reasonable time prior to the commencement of trial.   (People v. White, supra, 9 Cal.App.4th 1062, 1074, quoting People v. Freeman (1977) 76 Cal.App.3d 302, 307.)[17] The court in People v. Ruiz, supra, 142 Cal.App.3d 780, 790, observed: We find no case holding that a motion for self-representation presented six days or three days before trial is untimely. (Italics added.) Also, in People v. Nicholson, supra, 24 Cal.App.4th 584, a special circumstances prosecution, the court declared that a motion for self-representation by the two defendants made and denied seven days before the start of the trial would per se require reversal. (Id. at p. 595, italics added.) No evidence in the record demonstrates that defendant was misusing the Faretta mandate as a device to impede the progress of the proceedings, foment delay or frustrate the administration of justice. To the contrary, the reasons he expressed to support his request for self-representation were based on his views of the representation he received and his personal preference, unwise as it may have been, to act as his own counsel. Further, the four-month continuance he sought, although legitimately troubling to the trial court, was not manifestly unreasonable particularly without a deft examination by the court regarding the necessity of delaying the proceedings for the duration defendant proposed, or any suggestion by the court of an alternative, less lengthy postponement of trial given the numerous and serious charges he faced, the complexity of the trial before him, and the glaring fact that trial was not in any sense ready to begin.

The trial court did not find, and the record does not reflect, that defendant lacked the mental competence necessary to waive his constitutional right to counsel knowingly and intelligently, with a realization of the probable risks and consequences of self-representation. (People v. White, supra, 9 Cal.App.4th 1062, 1076.) The request for self-representation was unequivocal and timely, and the court therefore had no discretion to deny it. (People v. Halvorsen, supra, 42 Cal.4th 379, 434; People v. Nicholson, supra, 24 Cal.App.4th 584, 594; People v. White, supra, at p. 1076; People v. Herrera (1980) 104 Cal.App.3d 167, 174; People v. Tyner (1977) 76 Cal.App.3d 352, 355.) We decide this case under compulsion of United States Supreme Court and California Supreme Court precedent, and we are not empowered to narrow the established scope of a federal constitutional right. Accordingly, we conclude that defendants conviction and sentence must be reversed under the prevailing constitutional standards. (People v. Butler, supra, ___ Cal.4th ___ [2009 Cal. Lexis 12407, *29-*30].)

DISPOSITION

The erroneous denial of a timely motion for self-representation is a structural error of constitutional magnitude that is subject to the rule of per se reversal. (Peoplev. Jones (1998) 66 Cal.App.4th 760, 770; People v. Sohrab, supra, 59 Cal.App.4th 89, 99; People v. Robinson (1997) 56 Cal.App.4th 363, 373; People v. Nicholson, supra, 24 Cal.App.4th 584, 594.) Accordingly, we must reverse the judgment in its entirety and remand the case to the trial court to conduct further proceedings not inconsistent with the views expressed herein. (People v. Butler, supra, ___ Cal.4th ___ [2009 Cal. Lexis 12407, *30]; People v. Nauton (1994) 29 Cal.App.4th 976, 981.)[18]

I dissent for the following reasons. An unhappy defendant suddenly brings an oral Faretta[19]motion before the trial judge after the case is sent for trial. When defendant informs the court that he needs four to five months to get ready for trial, the trial court denies the motion as untimely and trails the case until defense counsel, who is ready for trial, completes a previously set no time waiver case. The request for self-representation was untimely. The court correctly denied defendants request.

In analyzing what transpired, we do not use a retrospectoscope. A trial judge is not blessed with clairvoyance about what may transpire weeks later. Lets review the record for what confronted the court on January 16, 2008, the day that it denied defendants Faretta motion.[20]

The calendar judge sent a multi-count case involving five separate robberies while using a gun that had languished for over two years to the trial judge for trial forthwith. On January 16, 2008, defense counsel and the prosecutor are ready except that defense counsel also has a no time waiver case that would take no more than two weeks to try while defendants case trailed.[21] Defendant is trying to negotiate a resolution of the case. Defendant wants a sentence of less than 20 years which would include a Contra Costa County felony case where he was facing an additional 25-year sentence for a robbery and firing a gun during the robbery. Defendant is facing more than 40 years in prison with the ante raised considerably by Contra Costa County when this case is over. No deal is struck. The trial judge starts to discuss how the trial will proceed. Trial is imminent. The Rubicon was crossed, the die was cast.

Both counsel are ready and the case is in front of the trial judge for pretrial motions. Defendant waits to invoke his right to self-representation until he does not receive the deal he wants. Defendant says that he just learned about Faretta a month ago after doing some research, and now wants to represent himself since he did not get a better deal. He says that if he has to go down facing 20 to 50 years, he might as well lose the case on his own. He thought it might get better with his new attorney, who was appointed over seven months ago after he filed a Marsden motion. Now that it was getting close to trial, he explains that he still is not happy and thinks he can represent himself better. The prosecutor has his witness list, defense counsel presents a motion to sever, and the court indicates the trial will proceed as soon as defense counsel concludes his no time waiver case that will take no more than two weeks. The court emphasizes defendants case, now ready for trial, is more than two years old, and has been continued six other times. Defendant is asked how much time he will need to prepare for trial. His reply, four or five months with an investigator and law library access. Clearly defendant cannot be ready by the time the no time waiver case is completed. The prosecutor argues that the case has already been continued multiple times. He points to the disruption that delay would cause. Six victims, taxicab drivers and small liquor store owners from five separate robberies, are witnesses. Defendant made two prior unsuccessful Marsden[22] motions.

The court had stated, [t]his matter is before this court for trial and this court is prepared to try this case. The court denied defendants motion and made findings under People v. Windham (1977) 19 Cal.3d 121, 128 (Windham) and People v. Caird (1998) 63 Cal.App.4th 578, 584 (Caird) regarding the factors that caused denial of the untimely motion.[23] The court scheduled another hearing a few days later on January 23 for consideration of defense counsels severance motion. The prosecutor was ordered to file his witness list. The court advised that jury selection would commence after February 4th.[24] A definitive date for jury selection could not be set until the no time waiver case was completed. Defendants counsel had stated that as soon as he completed the no time waiver case, he was prepared to try this case. The expectation was that defendants trailing case would start as soon as the no time waiver case was completed. Indeed, for management purposes, the court scheduled the next hearing for a few days later on January 23 to keep the case on track by hearing the severance motion.[25]

DISCUSSION

A defendant has a federal constitutional right of self-representation. As Justice Robert Puglia once explained in respecting the dignity and autonomy of the individual, a defendant has the right to go to hell in a hand basket and to do it his own way (People v. Nauton (1994) 29 Cal.App.4th 976, 981). The right, however, is not unfetteredit must be made in a reasonable time before  [t]he commencement of trial. [26] If the motion is not timely made before the commencement of trial, the trial court exercises its sound discretion in granting or denying the motion based upon the factors explained in People v. Rudd (1998) 63 Cal.App.4th 620, 625−626 explicating Windhams principles. The court considers the quality of counsels representation of the defendant, the defendants prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay that might follow the granting of the motion.[27] When the defendant cannot proceed without a continuance, the trial court determines if the motion is a tactic designed to cause delay and disrupt the judicial process. Here, defendant chose to proceed to trial represented by counsel, waited until negotiations for a lower sentence proved fruitless, and then facing an imminent trial made his Faretta motion and asked for a four- to five-month continuance. Under these circumstances, the untimely motion is left to the sound discretion of the court.

A comparison with what occurred in People v. White (1992) 9 Cal.App.4th 1062 (White) helps to shed some light on the issue of timeliness. In White, defendant made his self-representation motion four weeks before a tentative trial date that had just been set. His attorney had not announced he was ready, and a continuance was expressly contemplated by the court in the event defense cocounsel had to be replaced due to a calendar conflict. Justice Norman Epstein, in his concurring opinion, contrasted the case with an untimely Faretta motion made so close to an upcoming trial date that the date must be vacated, witnesses resubpoenaed and schedules rearranged. There the decision to grant the motion is left to the discretion of the trial court (White, supra, at pp. 1076−1077 (conc. opn. of Epstein, J.). In this case, granting defendants motion would have the same effect: the trial date would be vacated, witnesses would have to be rescheduled, and schedules are disrupted. Defendant sought to delay justice through a lengthy continuance.

The Supreme Court has not fixed any particular time at which a motion for self-representation is considered untimely, other than the motion must be made a reasonable time before trial. Nor has it adopted a rigid rule that any Faretta motion made before the actual commencement of trial is deemed timely (People v. Clark (1992) 3 Cal.4th 41, 99). 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. (Windham, supra, 19 Cal.3d at p. 128, fn. 5.)

People v. Howze explained that when a defendant raises the motion on the eve of trial, the trial court has the discretion to deny the motion. The court noted that a motion made within three days of the commencement of trial in one case and six days in another did not give rise to an unqualified right to self-representation, leaving the decision of whether it was untimely to the courts discretion. (People v. Howze (2001) 85 Cal.App.4th 1380, 1397.)

A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied. (People v. Scott (2001) 91 Cal.App.4th 1197, 1203, italics omitted.) In Scott, after a Marsden motion was denied, defendant made his Faretta motion four days before trial, coupled with a request for a continuance of the trial. The motion was deemed untimely and properly denied. (Id. at pp. 1204−1205.)

Nor is a Faretta motion coupled with a request for a four- to five-month continuance made on the eve of trial an unequivocal Faretta motion, as Faretta law requires. Lets review again what happened on January 16.

Defendant learned his case would not settle on his terms and the case would proceed to trial. He previously made an unsuccessful Marsden motion four days before a prior trial date. Later, the public defenders office replaced that attorney with attorney Jacobs who was prepared to try the case and with whom defendant also became unhappy. His attorney candidly informed the court of at least two Marsden motions made by the defendant. Although he had researched Faretta a month earlier, defendant did not make a Faretta motion on January 15 when the case came to Department 28, but waited until he saw the case indeed would go to trial on January 16. Defendant told the court that his motion was based on just over the time of me having him [defense counsel Jacobs] and over the time of me thinking and its getting close to trial, I was starting to realize that Im still not happy with a different person representing me. Defendant recognized the imminence of his trial. Then he played his version of the Faretta game and asked for four to five months to prepare for trial.[28]

[T]he trial courts determination of untimeliness necessarily must be evaluated as of the date and circumstances under which the court made its ruling; a trial courts reasonable and proper determination that such a motion is untimely does not become erroneous simply because, for example, an imminent trial ultimately is postponed. . . . (People v. Marshall (1997) 15 Cal.4th 1, 24−25, fn. 2.) What may have transpired at later hearings is irrelevant to what confronted the trial judge on January 16, 2008 when the Faretta motion was denied as untimely. The plan for this case was not nebulous as the majority contends. (Maj. opn., ante, at p. 14.) This case was not rattling around aimlessly in Department 28. When the settlement discussions were over, the court turned the case to starting the trial. On the day of the Faretta motion, and after its denial, as the quotations from the transcript below bear out,the plan was to try the case once the no time waiver case was concluded. Simply because the court may have encountered problems later that caused the trial to be continued, does not render fatal the courts decision on January 16 to deny the Faretta motion. The majority opinion looks back in time from February 4 by alluding to the uncertainties and scheduling problems at that time as the case trailed.[29] But the trial court had a firm understanding as to what would transpire as of January 16. The record for January 16, 2008 demonstrates that the court was then prepared to try the case once the no time waiver case was concluded. This is what the court and counsel said on January 16 in connection with the trial in light of the Faretta motion:

THE COURT: And its further your understanding from the master calendar department that this case has been sent here for trial and that, as soon as you are finished with that other trial, that you are prepared to start this trial in this court; is that correct?

MR. JACOBS [Attorney]: Thats correct.

At the conclusion of the session on January 16, the court summed up everyones understanding: [T]his trial has been sent here for trial, and as soon as Mr. Jacobs is available, I am prepared to start this trial. What would unfold in February causing a continuance was unknown and beyond the courts control on January 16 when the motion was properly denied.

The next session was scheduled for January 23 to consider the severance motion, receive witness lists and to ascertain the status of the no time waiver case. The prosecutor discussed starting the case on February 4 once the no time waiver case concluded.[30]

Faretta is abedrock case that underpins fundamental, constitutional rights and should never be treated lightly. But here it was not invoked in a timely way to cause its denial to result in a reversal per se. The record demonstrates that, although dependent on the availability of another trial department to conclude the no time waiver case, court and counsel expected to try defendants case as soon as the other case was completed. The court learned of defendants need for a four- to five-month continuance, his prior Marsden