Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CM031208, SCR60875
ROBIE, Acting P. J.
After the trial court denied his motion for self-representation (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562]), the court found defendant Thomas Franklin Palmer not guilty of assault with a firearm, but guilty of four counts of assault with a deadly weapon and possession of a firearm by a felon, and also found that he personally inflicted great bodily injury in two of the assaults. The trial court sentenced him to 11 years 8 months in prison.
Judge Clare Keithley ruled on the Faretta motion. Judge Thomas W. Kelly presided over the trial and sentencing.
On appeal, defendant contends the court erred in denying his Faretta motion and in not staying sentence on two of his assault convictions and one of his great bodily injury enhancements pursuant to Penal Code section 654. We conclude the trial court improperly denied defendant’s Faretta motion because after the court found defendant’s request to represent himself was untimely, the court did not consider the factors from People v. Windham (1977) 19 Cal.3d 121 (Windham) in determining whether defendant should be allowed to represent himself anyway. On review, we conclude that when the Windham factors are applied to this case, they require that defendant’s motion to represent himself be granted. Accordingly, we will reverse the judgment and remand for a new trial.
All further section references are to the Penal Code.
Because we reverse the trial court’s denial of the Faretta motion and remand the case for a new trial, we need not consider defendant’s contentions pertaining to his sentence.
FACTUAL AND PROCEDURAL BACKGROUND
Between 5:30 and 6:00 p.m. on July 27, 2009, defendant was frying fish in the kitchen of the house he shared with four roommates. While defendant was cooking, one of his roommates, Gary Raper, was also in the kitchen. Another roommate, Randy Jamison, came into the kitchen, took a piece of meat out of the refrigerator, and placed it on the counter. Jamison then went outside to start the barbeque. Once he lit the barbeque, Jamison came back into the kitchen to get the meat. Defendant started to yell at Jamison about not having the kitchen to himself and told Jamison to “[g]et the f out of my kitchen.” Jamison and defendant argued until Raper yelled at both men to “[s]hut the fuck up” and “start acting like men instead of children.” Jamison then walked toward the back porch and defendant removed the frying pan from the stove and placed it on the counter before going to his room.
A short time later, Jamison returned to the kitchen and yelled at Raper for screaming at him and defendant. While Jamison was yelling at Raper, defendant came back to the kitchen and placed the frying pan back on the stove. Defendant and Jamison continued their argument and Raper again yelled at the two to “shut up.” Defendant then took the frying pan off the stove and flung its contents at Jamison, who was standing about eight feet away. Both Jamison and Raper were hit with hot oil. Jamison ran out of the kitchen and into the backyard screaming in pain, while Raper and defendant went to their respective rooms. Raper retrieved a towel from his room and returned to the kitchen where he saw defendant come out of his own room and walk toward the backyard. Defendant was carrying a rifle and said, “‘I’m going to kill that mother fucker right now.’” Raper then returned to his room to take a shower.
After Jamison ran outside screaming, he told roommate Sheen Leduc to call 911. While Leduc was calling, he yelled to Jamison to “look out.” Jamison looked up and saw defendant running at him with a rifle. Defendant pointed the rifle at Jamison’s head and pulled the trigger; however, the gun was not loaded. Defendant then grabbed the rifle by the barrel and swung it at Jamison’s head. Jamison blocked the blow with his arm and the rifle butt snapped. Jamison fell on the deck, and defendant grabbed the barbeque Jamison had lit earlier and dumped the hot coals onto Jamison. Jamison then rolled off the deck and landed on an old piano frame at the bottom of the deck. Defendant then walked to a water spigot to attend his own wounds.
Defendant was charged in counts 1 through 3 and 5 with assault with a deadly weapon, in count 4 with assault with a firearm, and in count 6 with possession of a firearm by a felon. The information further alleged as to counts 1 and 5 that defendant personally inflicted great bodily injury.
On October 20, 2009, defendant provided his attorney the names of witnesses he wanted subpoenaed. Defendant also requested an expert be subpoenaed. On October 22, at a trial readiness conference, defendant waived his right to a jury and his attorney told the court that a trial date of November 2 was acceptable because witnesses and documents had been subpoenaed for that day. On October 29, defendant appeared in court to request civilian clothes for his trial.
On November 2, 2009, the day of trial, defendant moved to relieve his attorney and to represent himself. During the Marsden hearing, defendant stated that he requested subpoenas for multiple witnesses and experts and that his attorney never subpoenaed them. Defense counsel responded that his investigators had spent numerous hours interviewing the witnesses defendant told him about and that the witnesses were prejudicial to defendant’s case and confirmed defendant has an anger problem and “[h]e can go into a rage over anything.” Defendant also said that most of his meetings with his attorney had been about possible plea deals and not issues concerning the merits of his case. The trial court ultimately denied the Marsden motion.
People v. Marsden (1970) 2 Cal.3d 118.
During the Faretta hearing, the prosecutor opposed the motion on the ground that trial was scheduled for that day and his witnesses were waiting in the hall. Defendant requested a six- to eight-week continuance to prepare for trial in the event his motion was granted. The court denied the Faretta motion on the grounds it was untimely and would result in prejudice to the prosecution. In addition, the court stated that its decision took into account defendant’s earlier Marsden motion.
Following a bench trial, the court found defendant not guilty of assault with a firearm and guilty of four counts of assault with a deadly weapon and possession of a firearm by a felon. The court also found true both great bodily injury enhancements. The court sentenced defendant to a total of 11 years 8 months.
The four witnesses who testified at trial were defendant’s landlord, two of his roommates, and Officer Andre Carlisle.
DISCUSSION
Defendant raises two issues in connection with the denial of his Faretta motion. He contends the court erred in ruling his request untimely and, alternatively, abused its discretion in failing to properly consider the factors set forth in Windham, supra, 19 Cal.3d at page 121, in determining whether he should be allowed to represent himself anyway. Assuming for the sake of argument that the trial court correctly found defendant’s Faretta motion untimely, we nonetheless agree with defendant that the trial court abused its discretion when it failed to consider the Windham factors in ruling. Applying the Windham factors to the facts set forth in the record, we conclude the trial court erred in denying defendant’s Faretta motion.
A criminal defendant has a constitutional right under the Sixth and Fourteenth Amendments to represent himself at trial. (Faretta v. California, supra, 422 U.S. at pp. 819-821 [45 L.Ed.2d at pp. 572-574].) The underlying rationale of the Supreme Court’s Faretta decision is that “the state may not constitutionally prevent a defendant charged with commission of a criminal offense 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.” (Windham, supra, 19 Cal.3d at p. 130.) A request to exercise the constitutional right of self-representation, however, must be “asserted within a reasonable time before the commencement of the trial.” (People v. Bloom (1989) 48 Cal.3d 1194, 1219.)
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.” (Windham, supra, 19 Cal.3d at p. 128, fn. 5.)
Where the defendant’s Faretta motion is untimely, the court is not obligated to grant the motion -- that is, the defendant has no absolute right to represent himself -- but the court must nonetheless exercise its discretion to determine whether the request should be granted anyway. (Windham, supra, 19 Cal.3d at pp. 128-129.) When an untimely request for self-representation is made, “the trial court shall inquire sua sponte into the specific factors underlying the request thereby ensuring a meaningful record in the event that appellate review is later required. Among other factors to be considered by the court in assessing such requests made after the commencement of trial are [(1)] the quality of counsel’s representation of the defendant, [(2)] the defendant’s prior proclivity to substitute counsel, [(3)] the reasons for the request, [(4)] the length and stage of the proceedings, and [(5)] the disruption or delay which might reasonably be expected to follow the granting of such a motion. Having established a record based on such relevant considerations, the court should then exercise its discretion and rule on the defendant’s request.” (Windham, supra, 19 Cal.3d at pp. 128-129.)
Here, the trial court ruled defendant’s Faretta motion untimely but did not consider the Windham factors as it should have in deciding whether defendant should be allowed to represent himself anyway. The trial court’s failure to do so was an abuse of discretion. Rather than remand the matter to the trial court, however, we will assume for the sake of argument that defendant’s Faretta motion was, in fact, untimely, and we will apply the Windham factors ourselves, because when we do so the only reasonable conclusion is that the trial court should have allowed defendant to represent himself.
First, the record reflects, as a result of defendant’s Marsden motion, that the trial court was fully apprised of the quality of defense counsel’s representation and the court found counsel thorough and effective. Defendant concedes this factor.
Second, defendant exhibited no prior proclivity to substitute counsel. Defendant had a single attorney and only sought to relieve him when he decided to represent himself.
Third, defendant’s reasons for making his Faretta motion were that defense counsel had not subpoenaed witnesses defendant wished to testify on his behalf and most of defendant’s conversations with counsel revolved around plea deals and not the merits of the case. These reasons indicate defendant’s frustration that he could not “control[] his own fate” because defense counsel’s strategy was “not consistent with [his] actual wishes.” (Windham, supra, 19 Cal.3d at p. 130.)
Fourth, although trial was imminent, the entire proceeding had not been pending very long as of that time, as defendant had been arraigned on July 30, 2009, and defendant made the Faretta motion on November 2. As for the fact that defendant made his Faretta motion on the day of trial, we find that of minimal consequence because from all appearances, defendant made the motion at his first opportunity to do so.
Our examination of the record supports the conclusion that defendant reasonably could have been under the impression at the time of the trial readiness conference on October 22, only 11 days before the November 2 trial date, that the witnesses he wished to have subpoenaed had actually been subpoenaed, because defense counsel specifically stated, “we have witnesses and documents subpoenaed.” Defendant appeared again before the court on October 29 to request civilian clothes for trial, but there is nothing in the record to suggest he was not still under the impression that the witnesses he requested had been subpoenaed. Thus, it must not have been until some point between the October 29 appearance and the November 2 trial date that defendant learned for the first time that the witnesses he wished to have subpoenaed were not, in fact, subpoenaed. The November 2 appearance was therefore defendant’s first opportunity to appear before the court and request self-representation after developing his reason and desire to do so.
Fifth, granting the motion would not have reasonably resulted in substantial disruption or delay. Defendant had already agreed to a court trial, so delaying the trial would not have involved any disruption relating to the selection and service of a jury. Defendant did request six to eight weeks to prepare his case, and under some circumstances such a request could support the conclusion that the defendant was attempting to “unjustifiably delay a scheduled trial or to obstruct the orderly administration of justice.” (Windham, supra, 19 Cal.3d at p. 128, fn. 5; see People v. Nicholson (1994) 24 Cal.App.4th 584, 592-593.) In this case, however, defendant’s request for additional time was justifiable given that the day of trial was his first opportunity to make his Faretta motion and he would have needed at least some time to subpoena the witnesses he requested. Moreover, nothing compelled the trial court to allow defendant the entire six to eight weeks he requested; instead, the trial court could have exercised its discretion to allow defendant some shorter, but still reasonable, amount of time to prepare his case for trial.
Finally, there is nothing in the record to indicate that granting defendant’s Faretta motion would have prejudiced the People’s case. The People were prepared for trial and had subpoenaed four witnesses who were waiting in the hall, but the court could have ordered those witnesses to return at a later date, causing only minimal disruption because no testimony had been taken and there were only a few witnesses, as opposed to many, who would have had to return. Thus, the People could have presented the same case and examined the same witnesses, just at a later date.
“The question is whether, on this record, the denial of the motion[] was an abuse of discretion.” (People v. Nicholson, supra, 24 Cal.App.4th at p. 592.) In weighing all the Windham factors, the facts that there was no jury, no prejudice to the prosecution, only a few witnesses, and -- most significantly -- defendant made his Faretta motion at his first opportunity tip the balance toward an abuse of discretion by the trial court. In short, the trial court should have granted the Faretta motion because the Windham factors do not indicate defendant was “misus[ing] the Faretta mandate as a means to unjustifiably delay a scheduled trial or to obstruct the orderly administration of justice, ” but rather was legitimately attempting to “control[] his own fate... consistent with [his] actual wishes” by subpoenaing certain witnesses he believed would benefit his case at trial. (Windham, supra, 19 Cal.3d at pp. 128 fn. 5, 130.)
DISPOSITION
The judgment is reversed and the case is remanded to the trial court for a new trial.
We concur: BUTZ, J., DUARTE, J.