Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F06625
ROBIE , J.
After the trial court denied his motion for self-representation (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta)), defendant Victory Ilsung was convicted of attempted murder with premeditation, mayhem, corporal injury to a former cohabitant resulting in a traumatic condition, battery on a person he had been dating, and assault and was found to have a prior serious felony conviction. The trial court sentenced him to 24 years to life in prison.
Judge Tochterman ruled on the Faretta motion. Judge Vasquez presided over the trial and sentencing.
On appeal, defendant contends the court erred in denying his Faretta motion as untimely. Agreeing with defendant that his request to represent himself was timely and finding it was also intelligent and voluntary, we reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On Monday, May 16, 2005, at defendant’s first court appearance following his arraignment on the information and three days before his case was scheduled to go the trial, defendant brought a motion to represent himself. Below is the detailed colloquy between the court, the prosecutor, defense counsel, and defendant regarding the Faretta motion, concluding in the court’s denial of the motion.
“THE COURT: We’re meeting in an open court. [The prosecutor] is present from the District Attorney’s Office.
“[The prosecutor], for your information, I have denied [defendant’s] Marsden motion. He’s now made a Faretta motion. Do you know what the maximum exposure is if he were convicted of everything, all allegations being found true?
“[THE PROSECUTOR]: Life.
“THE COURT: Twenty-five to life, or
“[THE PROSECUTOR]: Very close to it.
“THE COURT: Okay. [Defendant], you do have the right to be represented by an attorney at all stages of the proceedings. And if you cannot afford to hire an attorney, the Court will appoint an attorney to represent you. I’m sure you know that. The Court has appointed the panel to represent you. You also have the right to represent yourself. I strongly recommend against self-representation. There are dangers and disadvantages to self-representation that you may not have in mind. They include the following:
“You will be opposed by a trained prosecuting attorney.
“The Court, meaning the judge, will not assist you in your effort to represent yourself.
“You will be held to the same standards insofar as the rules of evidence[,] law and procedures are concerned as an attorney is.
“You may waive or give up important legal rights without knowing that you are doing so.
“You may omit, in other words fail, to do things that are necessary to make an adequate record for appeal, if an appeal should become necessary.
“You will not be allowed to argue on appeal that you were incompetent to represent yourself, or that you did not adequately represent yourself at trial. No conviction will be reversed on any such argument.
“You may have difficulty contacting and interviewing witnesses because you are in custody.
“You may have difficulty phrasing questions to witnesses, statements and arguments to the Court or the jury.
“Do you understand what I have said to you so far?
“THE DEFENDANT: Yes, your Honor.
“THE COURT: How far have you gone in school?
“THE DEFENDANT: Um, some junior college, your Honor.
“THE COURT: Did you graduate from high school?
“THE DEFENDANT: Yes.
“THE COURT: Have you represented yourself before?
“THE DEFENDANT: No, your Honor.
“THE COURT: Have you ever been under the care of a psychiatrist or psychologist?
“THE DEFENDANT: No, sir.
“THE COURT: The case is scheduled to go to trial on this coming Thursday, May 19th. Will you be ready to represent yourself on May 19th?
“THE DEFENDANT: No, your Honor.
“THE COURT: How long of a continuance do you need?
“THE DEFENDANT: Well, I need a private investigator.
“THE COURT: How long of a continuance will you need, sir?
“THE DEFENDANT: At this point, I’m not sure, your Honor.
“THE COURT: Can you give me a rough idea?
“THE DEFENDANT: Two weeks.
“THE COURT: If you were convicted of the crimes charged against you, and the enhancing allegations were proved to be true, you could be sentenced to serve twenty-five years to life and be ordered to pay fees, fines and assessments of up to $20,000. Do you understand?
“THE DEFENDANT: Yes, sir, your Honor.
“THE COURT: When was [defendant] arrested? Do you know when he was?
“[DEFENSE COUNSEL]: He turned himself in in November, toward the end of November.
“THE COURT: November 2004?
“[DEFENSE COUNSEL]: Yes.
“THE COURT: So I assume that the panel was appointed shortly after that?
“[DEFENSE COUNSEL]: Yes. What happened is the Public Defender overloaded.
“THE COURT: So how long have you been in the case, [defense counsel]?
“[DEFENSE COUNSEL]: I know it was since December.
“THE COURT: Since December.
“[DEFENSE COUNSEL]: I believe they overloaded fairly quickly.
“THE COURT: Since late 2004?
“[DEFENSE COUNSEL]: Yes.
“THE COURT: All right. [Defendant], you’ve been represented by [defense counsel] since December of last year. It’s now May 16th. You’re scheduled to go to trial May 19th. Why have you waited so long to make this motion?
“THE DEFENDANT: The last time I appeared in court, [defense counsel] wasn’t here. I believe associates of his w[ere] here that day. And I hadn’t seen [defense counsel] -- I mean at all during that time. What happened was -- was I’m -- I was still waiting for me and [defense counsel] to get together to have a pow-wow to discuss very specific items of the case and we never did, your Honor.
“THE COURT: My question is why have you waited until now to make this motion?
“THE DEFENDANT: Well, the last time I was in court, your Honor -- I’m still not answering your question. One of [defense counsel]’s associates was here in court. I hadn’t seen him that day. I expected him to contact me some time during the sixty days between -- whatever [the prosecutor’s] last -- I believe she went and upped the charges -- so from that date until now I believe that [defense counsel] and I would have conferences and prepare further the case by that point, your Honor.
“THE COURT: [The prosecutor], will there be any inconvenience or prejudice to your witnesses or to your case if the trial were postponed for two weeks?
“[THE PROSECUTOR]: No. In fact, your Honor, just so the record is clear, we had the preliminary hearing on March the 10th. And then we had an arraignment on the Information on March the 24th. And the trial was scheduled within the sixty days. [Defendant] at that time understandably did not want to waive time. I anticipated that this case, because of the investigation that needed to be done, I anticipated that [defendant] would want a continuance. So I prepared my witnesses for that potential event.
“THE COURT: It wouldn’t be a problem for you?
“[THE PROSECUTOR]: No.
“THE COURT: So as far as you know, [defendant], you’d be prepared to go to trial in two weeks, that’s May 30th?
“THE DEFENDANT: Yes, sir.
“THE COURT: Representing yourself?
“[THE PROSECUTOR]: But, your Honor, would it be -- would [defendant] be interested in withdrawing his Faretta motion if he were given some time to meet with [defense counsel]? Those two weeks would allow him time to consult with [defense counsel].
“THE COURT: Why don’t you talk to him about that [defense counsel], about the two week -- if you were given a stay in the case for a two-week continuance. I don’t know if that would work for you.
“[THE PROSECUTOR]: However much time they would want. If they want more than two weeks, that’s fine.
“THE COURT: How does that work with your calendar, [defense counsel]?
“[DEFENSE COUNSEL]: Not well.
“THE COURT: Why don’t you talk to [defendant], see if there’s a date.
“[THE PROSECUTOR]: I can step out.
“THE COURT: No, that’s
“[DEFENSE COUNSEL]: [Defendant] is not interested in working with me.
“THE COURT: All right. You would want to represent yourself even if I were to grant you a continuance so you’d have more time to meet with [defense counsel]? Is that correct, [defendant]?
“THE DEFENDANT: I’m sorry, your Honor. Can you repeat that question?
“THE COURT: If I were to grant a postponement, continuance of the trial for two weeks, [defense counsel] staying in the case so you’d have more time to meet with him, would you be satisfied? “THE DEFENDANT: No, sir, I would not.
“THE COURT: All right. This is a motion addressed to my sound discretion, it’s a somewhat belated Faretta motion. So this is not a situation that which I’m obligated simply because [defendant has] made the motion to grant it.
“Do you want to be heard, [prosecutor]?
“[THE PROSECUTOR]: We would object to the Faretta motion. Just for your information, the evidence in this case is going to turn on a question of premeditation -- premeditation on the attempted murder. Obviously the People believe we have enough evidence to support that allegation, but it is an issue that I’m sure the defense is looking at and is trying to beat.
Secondly, your Honor, there’s a significant legal issue with respect to a prior - - the prior strike in the sense that we believe that the prior strike, which was the shooting of his former girlfriend, [is] admissible pursuant to Evidence Code Section 1109 and 1101(b). However, I’m preparing a trial belief at this very moment discussing the legal issues whether or not the Court should introduce that evidence. Some legal issues that the People believe [defendant] would not be prepared to respond to and that he would need an attorney to adequately represent him -- when the difference between introduction of this evidence, as well as the premeditation clause will have an impact on the eventual sentence that he receives.
“THE COURT: Let me ask you on that point, [defendant], do you know anything -- have you researched the law on these questions, the question of premeditation as it bears on the attempted murder charge and the question of the admissibility of the -- provability of the alleged prior strikes conviction?
“THE DEFENDANT: No, sir, I’m absolutely ignorant of what you just said, sir.
“THE COURT: You’re opposed to my granting this motion?
“[THE PROSECUTOR]: Yes.
“THE COURT: I deny the motion. I think because of the lateness of the motion and exactly the reason stated by [the prosecutor], the interest of justice would be disserved if [defendant] were allowed to represent himself. I believe that there’s no way he could be ready to try himself in two weeks. And the case is old enough and it would be inappropriate in the circumstances to continue the trial. So I deny the motion.”
DISCUSSION
A criminal defendant has a constitutional right under the Sixth and Fourteenth Amendments to represent himself at trial. (Faretta, supra,422 U.S. at pp. 819-821 [45 L.Ed.2d at pp. 572-574].) A trial court must grant the Faretta motion if defendant’s request is voluntary, intelligent, and timely. (People v. Windham (1977) 19 Cal.3d 121, 127-128.)
We begin with the timeliness requirement, which is where the parties’ dispute in this case arises. Our Supreme Court has not fixed “any particular time at which a motion for self-representation is considered untimely, other than that it must be a reasonable time before trial.” (People v. Clark (1992) 3 Cal.4th 41, 99.) The reasonable time requirement is intended to prevent a defendant from “misus[ing] 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.” (People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5.)
Here, the court found defendant’s Faretta motion “somewhat belated,” therefore believing it had discretion to deny the motion. As we will explain, based on the detailed record of the Faretta colloquy, we find that the trial court erred in ruling that defendant’s Faretta motion was untimely.
Defendant explained that he brought the Faretta motion when he did because counsel had not contacted him to discuss the case between the time he was arraigned on the information, which was March 24, 2005, and “now,” which was May 19, 2005. The record reflects that defendant brought the Faretta motion at his first court appearance after he was arraigned on the information. Although this was three days before the case was scheduled to go to trial, we find nothing in the record indicating defendant was simply trying to “misuse the Faretta mandate” to “unjustifiably delay a scheduled trial” or “obstruct the orderly administration of justice.” (People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5.)
Simply because the Faretta motion was made on the heels of defendant’s motion to replace court-appointed counsel (People v. Marsden (1970) 2 Cal.3d 118) does not compel a different conclusion. “[I]t is not at all uncommon for a Faretta motion to accompany an accused’s request to dismiss court-appointed counsel.” (People v. Joseph (1983) 34 Cal.3d 936, 944, fn. 3.)
Importantly, the court appeared to accept defendant’s explanation for why he raised the Faretta motion when he did, as the court’s next question was directed at the prosecutor and inquired whether there would be “any inconvenience or prejudice to [her] witnesses or to [her] case if the trial were postponed for two weeks,” which was the amount of time defendant said he needed for a continuance were he granted the right to represent himself. Significantly, the prosecutor said she anticipated that defendant would want a continuance and had “prepared [her] witnesses for that potential event.” The prosecutor later added she was “fine” with the trial court giving the defense “[h]owever much time they would want” even if “they want[e]d more than two weeks.” The court did not express any ambivalence about “grant[ing] a postponement” during this part of the exchange and instead tried to “satisf[y]” defendant by offering a two-week continuance if defense counsel could “stay[] in the case so [defendant would] have more time to meet with him.” It was when defendant said that he would not be satisfied with that resolution that the court ruled the Faretta motion was “somewhat belated.”
After this ruling, the court mentioned that the case was “old enough.” We disagree with the court’s assessment of the age of the case. Only 10 months had elapsed between the charged crimes and the Faretta motion.
On this record, where defendant brought his Faretta motion at the first court appearance after he was arraigned on the information, the court expressed no skepticism about defendant’s proffered reason for wanting to represent himself, the prosecutor was willing to give defendant as long a continuance as he needed, the court was willing to postpone the trial two weeks for defendant to meet with counsel, and the case had been pending in court for only 10 months, we conclude that defendant’s Faretta motion, although made three days before trial, was timely. The court erred in ruling to the contrary.
The record also establishes that defendant’s request to represent himself was voluntary and intelligent, the two remaining requirements for a defendant “to invoke the constitutionally mandated unconditional right of self-representation.” (People v. Windham, supra, 19 Cal.3d at pp. 127-128.) Defendant was articulate and literate, acknowledged that he understood the “dangers and disadvantages to self-representation” that the court had just explained to him, and gave no indication that he was not competent to waive counsel. (People v. Teron (1979) 23 Cal.3d 103, 113.) While defendant admitted ignorance on legal issues such as premeditation and the “provability of the alleged prior strikes conviction,” we give no weight to the court’s and the prosecutor’s concern that defendant would not be able to adequately represent himself because of the complexity of the legal issues in this case. As the Faretta court itself stated, a defendant’s “technical legal knowledge” “i[s] not relevant to an assessment of his knowing exercise of the right to defend himself.” (Faretta, supra, 422 U.S. at p. 836 [45 L.Ed.2d at p. 582].)
As we have concluded that defendant’s request to represent himself was voluntary, intelligent, and timely, the trial court erred in denying his Faretta motion. (People v. Windham, supra, 19 Cal.3d 121, 128-129; People v. Joseph, supra, 34 Cal.3d at p. 945.) The erroneous denial of a timely Faretta motion requires reversal of the judgment without regard to whether defendant was prejudiced in the outcome of the trial. (Joseph, at pp. 945-946.)
DISPOSITION
The judgment is reversed.
We concur: BLEASE , Acting P.J., HULL , J.