People v. Moore

WHITE (Clinton W.), J., * Dissenting.

I would reverse the judgments. My assessment of the record reveals clear Faretta (Faretta v. California (1975) 422 U.S. 806 [ 45 L.Ed.2d 562 , 95 S.Ct. 2525 ]) error.

*96 Beyond question, under any assessment of the record, the time arrived during defendant Moore’s jail confinement awaiting trial that he justifiably concluded he was in need of an audience with the Master Calendar Judge. Moore’s letter to the court, dated March 10, 1984, establishes this fact. (See maj. opn., p. 74, fn. 2.) It bears noting that Moore ended his letter thus: “FARETT V. CALIF, 422 US.,” suggesting the notion that Moore may have understood that Faretta made his pro se motion “weeks before trial” (Faretta v. California, supra, at p. 835 [ 45 L.Ed.2d at p. 582 ]) and consequently justifiably believed that his motion, also made before trial, would not be too late, i.e., that he had not lost or forfeited his right nor would it be deemed waived. 1 In any event, it is understandable that on Friday, March 16, 1984, defendant Moore’s letter generated considerable verbal exchange between the calendar judge and defendant Moore. Apparently court appointed defense counsel’s interests conflicted with Moore’s personal choice. Defense counsel did not support Moore’s several pretrial motions including his ultimate request to be permitted to exercise his personal choice to go to jail or suffer death, if need be, under his own banner. (United States ex rel. Maldonado v. Denno (2d Cir. 1965) 348 F.2d 12, 15 .) Further, the calendar setting judge’s view did not give much, if any, promise to Moore’s personal choice: “It’s up to me to. I have a responsibility under the law to make sure you don’t go out and commit suicide, legal suicide, by trying to represent yourself. It’s not for him [defense counsel] to say whether you go pro per or not.”

No criticism of the court is intended and none should be inferred. Obviously the calendar court, in accord with Faretta, was simply speaking in the context of pointing out the disadvantages of self-representation. Of course, when Moore, as he did, became even more adamant and unequivocal the court’s duty required it to stop and reverse direction protecting Moore’s fundamental pro se right, not an easy maneuver. Cost efficiency being a premium, master calendar courts exist to move cases in the orderly administration of justice avoiding untoward delay. Moreover, while the fundamen *97 tal Faretta right is a cherished right, the motion in truth is not in favor in our courts. Understandably, the predisposition of our state’s courts, shared unanimously, I presume, without dissent by this court, is that the criminal defendant’s due process right to a fair trial and the state’s correlative interest in truth finding are both better served in an assisted by counsel trial. Particularly is this our predisposition in criminal cases implicating the death penalty. But, of course, the Faretta court appreciated that the help of a lawyer is essential to assure a criminal defendant a fair trial. As we know, however, the high court’s majority held nonetheless that a state may not constitutionally compel a criminal defendant truly choosing to proceed pro se to accept assistance of counsel. (See Faretta v. California, supra, 422 U.S. at pp. 832-834 [45 L.Ed.2d at pp. 579-581],

Earlier, during Friday’s colloquy, Moore is reported in the Reporter’s Transcript as follows: “The Defendant: Okay. Under the federal law I have a right to represent myself; is that correct? “The Court: You have a right to represent yourself if you are—if you make a knowing and intelligent waiver of your counsel; that’s true. “The Defendant: Okay. And I was informed, too, that . . . .”

On this record, we do not know when the defendant was first informed of his constitutional pro se right, for certain Moore was not so informed at his arraignment. On March 16, 1984, however, the intent of his letter undergoing the court’s inquiring scrutiny, defendant Moore made a showing revealing to the Master Calendar Court the circumstances giving rise to his decision to invoke pretrial his constitutional right to act as his own lawyer. Moore’s letter, reproduced in footnote 2 in the majority opinion, page 74, vividly portrayed to the court those circumstances, including the fact that it was Moore’s assigned counsel who sowed in Moore’s mind the seed of going pro se. Moreover, those circumstances were never challenged or disputed by defense counsel during the Faretta hearing. Unquestionably, then, a showing was made before the calendar judge that but for the fact that defendant Moore on March 5 and on March 9 remained in a holding cell while his trial date was continued in his absence, Moore would have asserted his Faretta right weeks before trial, safely assuming, of course, a denial of his motion to “go cocounsel.” Consequently, for reasons that follow, I disagree with the majority’s belief that the Master Calendar Court was correct in denying Moore’s Faretta motion as being made untimely.

“Faretta held that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so, and that the state may not force a lawyer upon a defendant who properly asserts that right.” (Chapman v. United States (5th Cir. 1977) 553 F.2d 886, 889 .) Chapman, a federal criminal defendant, on the day of his *98 trial, but at the earliest opportunity to directly address the court, twice requested unequivocally before empanelment of the jury his right to proceed pro se. The district trial court denied Chapman’s requests and he proceeded to trial with the assistance of counsel against his will. Following an unsuccessful appeal of the judgment entered upon the jury’s guilty verdict, Chapman’s motion to vacate judgment was denied by the lower court. On appeal, the Chapman court reversed and remanded, holding: “In sum, Chapman should not have been denied his constitutional right to represent himself on the ground that his assertion was untimely. He asserted the right before the jury had been empaneled, and there is no suggestion that he sought to delay or disrupt the trial.” (Chapman, supra, at p. 895 .)

The constitutional right of self-representation accorded finality in Faretta, must, of course, be timely asserted. (United States v. Kizer (9th Cir. 1978) 569 F.2d 504, 507 , cert. den. 435 U S. 976 [ 56 L.Ed.2d 71 , 95 S.Ct. 1626 ].) However, we know that the erroneous denial of a timely asserted pretrial Faretta motion is reversible per se; the defendant need not show prejudice. “The nature of the right to defend pro se renders the traditional harmless error doctrine peculiarly inapposite.” (Chapman v. United States, supra, 553 F.2d at p. 891 ; see also People v. Ruiz (1983) 142 Cal.App.3d 780, 788 [ 191 Cal.Rptr. 249 ].)

“Under the federal law,” quoting defendant Moore, the federal Ninth Circuit determines timeliness of constitutional or pretrial Faretta motions by the identical standard employed by the Chapman court in the Fifth Circuit. In the case Fritz v. Spalding (9th Cir. 1982) 682 F.2d 782 , Fritz was a State of Washington criminal defendant who invoked his Faretta right on the morning of his trial scheduled to start in the afternoon. The trial court denied Fritz the exercise of his Faretta right on the grounds that he was not competent to act as his own counsel. On appeal, the court of appeals held Fritz competent, but affirmed the trial court’s denial of the Faretta motion on the ground that the motion was a tactic on Fritz’s part to delay his scheduled trial and obstruct the orderly process of justice. The State of Washington Supreme Court denied review. Fritz’s statutory petition for writ of habeas corpus in the federal district court sought an evidentiary hearing which the federal magistrate denied as unnecessary. The federal magistrate ruled Fritz’s motion the morning before trial untimely because it would have resulted in a delay of trial. Adopting the magistrate’s report, the federal district court’s order denied writ relief. On appeal, the Fritz court vacated the district court’s order holding: “Fritz asserted his Faretta right on the morning of an afternoon trial, before any trial proceedings had begun. It was therefore timely as a matter of law, unless it was made for the purpose of delay.” (Fritz, supra, at p. 784 .) The Fritz court then remanded, holding: “We hold only that the facts material to Fritz’s constitutional *99 claim were not adequately developed in state court and that Fritz is thus entitled to an evidentiary hearing in federal district court to determine whether his motion to proceed pro se was made as a tactic to delay the start of trial.” (Fritz, supra, at p. 786 .)

Based on the record under review, there is no showing suggesting or hinting defendant Moore’s unequivocal request to exercise the constitutionally mandated unconditional right of self-representation was made for the purpose of delaying his scheduled trial or to obstruct the orderly administration of justice. Indeed, I do not read the court’s majority opinion as contending or holding to the contrary. Likewise, the record amply demonstrates that Moore, after being thoroughly made aware by the calendar judge of the disadvantages of proceeding pro se, voluntarily and intelligently elected to do so, with his eyes wide open, so to speak.

Obviously, Fritz and Chapman demonstrate that the federal timeliness standard implements the exercise of the Faretta right, not limits it. “Delay per se is not a sufficient ground for denying a defendant’s constitutional right of self-representation. Any motion to proceed pro se that is made on the morning of trial is likely to cause delay; a defendant may nonetheless have bona fide reasons for not asserting his right until that time, see Chapman , 553 F.2d at pp. 888-889, and he may not be deprived of that right absent an affirmative showing ofpurpose to secure delay.” (Fritz v. Spalding, supra, 682 F.2d at p. 784 , italics added.)

One will recall that the majority treat defendant’s Faretta motion as having been made on Friday, March 16, 1984. (See maj. opn. at pp. 78-79.) Moore, on Monday, March 19, 1984, was assigned to a trial department for hearing of pretrial motions, if and when denied, empanelment of the jury was to commence. Trial, i.e., selection of the jury, commenced on March 26, 1987.

In a case decided after Faretta had been argued but before it was decided, the Honorable Judge Wachtler in People v. McIntyre (1974) 36 N.Y.2d 10 [ 364 N.Y.S.2d 837 , 324 N.E.2d 322 ] made a cogent observation regarding criminal defendants typified by the likes of Chapman, Fritz, Ruiz and Moore herein. He correctly observed: “Frequently, the pro se defendant is motivated by dissatisfaction with the trial strategy of defense counsel or a lack of confidence in his attorney [citations]. Disagreement over trial strategy is particularly frustrating to a defendant in light of holdings indorsing counsel’s view when a difference of opinion arises [citation].” (People v. McIntyre, supra, 364 N.Y.S.2d at p. 843 .)

Even if we must say that Moore is presumed to know that procedurally the timeliness of his Faretta request would be determined on the basis of *100 California’s “within a reasonable time before commencement of trial” standard (see People v. Windham, supra, 19 Cal.3d 121, at pp. 127-128 ), no sound reason exists, I believe, and none is stated in the court’s decision today, explaining why the constitutional Faretta requests of Fritz and Chapman fared better at law in federal court than Moore’s constitutional entitlement fares today under Windham’s standard. It is manifest that the essential facts bottoming each case are not significantly or meaningfully different so as to account for the disparity. Given the fundamental nature of the Faretta right, 2 fundamental fairness compels, I believe, that Moore’s Faretta right be honored whether implemented by either timeliness standard, federal or California. 3 Thus stems my dissent; whether its premise is firm, I proceed to determine.

The trial setting judge, as we know, on Monday, March 19, 1984, before and after meticulously enumerating express findings, ruled: “Under the authority of People versus Ruiz, 142 Cal.Ap.3d 780, this motion is denied.” People v. Ruiz, supra, 142 Cal.App.3d 780 is a leading progeny of People v. Windham, supra, 19 Cal.3d 121 .

In the Ruiz case, the Honorable Justice Hanson (P. D.) reviewed the denial of a constitutional Faretta motion made six days before trial. Consequently, the Ruiz court was called upon to consider Windham’s holding, i.e., “. . . 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 commencement of trial,” and Windham’s footnote 5, set out in the margin. 4 (See People v. Windham, supra, 19 Cal.3d 127 -128, fn. 5 at p. 128.) *101 Windham’s holding, as we know, answered the court’s question: “[P]rior to what point during pending criminal proceedings must the constitutional right of self-representation be asserted if it is to be exercised?” Mr. Justice Blackmun, dissenting in Faretta had asked essentially the same question, to wit: “How soon in the criminal proceeding must a defendant decide between proceeding by counsel or pro seT’ (Dis. opn. of Blackmun, J., in Faretta v. California, supra, 422 U.S. at p. 852 [ 45 L.Ed.2d at p. 592 ].) The Denno, supra, court had foreshadowed the logical answer to Justice Black-mun’s question when holding in substance that because Maldonado clearly sought to represent himself after his case had been called on the calendar but before the jury had been chosen, he had an unqualified right to have his request granted. The Denno court sensibly reasoned that at the time of Maldonado’s request, there was no danger of disrupting trial proceedings already in progress. (See United States ex rel. Maldonado v. Denno, supra, 348 F.2d at p. 16 .) Fritz and Chapman , then, are federal circuit cases wherein the constitutional Faretta right was implemented on the basis of the right’s dimensions delineated in Denno as follows: “ ‘The 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. [Citations.] 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.]’ ” (Denno, supra, 348 F.2d at p. 15 ; see also People v. Windham, supra, 19 Cal.3d at p. 126 .)

Herein trial had not begun, counsel was of record but Moore was on his own. Fundamental fairness compels that Moore, a criminal defendant, have made known to him his last clear chance to assert his constitutional right. The Denno court fixed the “Rubicon,” to borrow Judge Goldberg’s usage, beyond which the defendant forfeits the unqualified (unconditional) right to *102 defend pro se as being the meaningful commencement of trial proceedings, i.e., the empanelment of the jury. The Honorable Judge Goldberg of the Fifth Circuit, writing on the subject of the court’s delineating procedural requirements for asserting the right of self-representation, observed: “In delineating those requirements, courts must consider the fundamental nature of the right and the legitimate concern for the integrity of the trial process. Particular requirements can be justified only insofar as they are functionally related to reconciling those interests.” (Chapman v. United States, supra, 553 F.2d at p. 895 .)

Windham’s reasonable time requirement functions, I think, to reconcile “those interests,” but only if trial courts strictly adhere to Windham’s footnote 5. To be specific, in defendant Moore’s case under review, the Master Calendar Judge’s reply confirming that it is true under federal law that Moore had a constitutional right to represent himself, should have, in light of Windham’s footnote 5, concluded thus: “if today I find there is some showing of reasonable cause justifying the lateness of [your] request to proceed pro se without the assistance of appointed counsel who informs this court that he is ready to proceed Monday? So I ask you, Mr. Moore, why have you waited until now, the date scheduled for trial, to make your Faretta motion?” Unquestionably, based on the record, Moore would have answered: “Okay, it’s all right there in my letter. I didn’t make up my mind to ask you to until March 5, when I learned my lawyer did not want me to go co-counsel with him, but my case was continued while I was in the holding cell. So I couldn’t ask you, even though my lawyer knew I would if you did not give me the right to go co-counsel. When the same thing happened on March 9, I wrote and mailed you a letter the next day on March 10, telling you what was going on, that is the best I could do under the circumstances. Today, March 16, is the first time since losing all confidence in my lawyer I have had a chance to tell you face to face that I want to exercise my right under federal law to represent myself.” (See, infra, fn. 7.)

The point, of course, I seek to make aside from illustrating that a record for review should be made, is that under Windham’s footnote 5, Moore’s pretrial Faretta motion made in close proximity to the date scheduled for his trial did not in the first instance address the calendar judge’s sound discretion. 5 In first instance, after determining that Moore’s request *103 complied with Faretta's requirements, the judge, again under Windham’s standard, was required to make a factual determination as in an order to show cause hearing, i.e., that the proof at hand did or did not constitute “some showing of reasonable cause” for the lateness of Moore’s assertion of his constitutional pretrial Faretta right. On this record, if the calendar judge had expressly found that there was not any showing of reasonable cause justifying the lateness of Moore’s Faretta request, I would surely hold that such a factual finding was totally contrary to the substantial showing made. Further, I hold that because the showing is uncontradicted that Moore’s Faretta motion was made at the first practical opportunity afforded him to face the court, at law his motion was bona fide and timely, leaving no room thereafter for the exercise of the calendar judge’s discretion other than allotting Moore a reasonable time to prepare for his defense. (People v. Herrera (1980) 104 Cal.App 3d 167, 174 [ 163 Cal.Rptr. 435]; 6 People v. Cruz (1978) 83 Cal.App.3d 308, 324-325 [ 147 Cal.Rptr. 740 ].)

*104 Ruiz , relied upon by the calendar judge in Moore’s case as heretofore noted, is a case in point. Factually, Ruiz, like defendant Moore, made his pretrial Faretta motion after being denied his Marsden motion to relieve counsel. In Moore’s instance the calendar judge in addition denied his motion to go cocounsel. Both Ruiz’s and Moore’s constitutional requests, then, were made late in close proximity to the date scheduled to their trials, i.e., three or six days before in Ruiz’s trial depending upon one’s assessment of the record, and three days in Moore’s instance. And, as heretofore noted, both Ruiz and Moore are classic examples of would-be pro se defendants described hereinabove by Judge Wachtler in McIntyre .

Upon reading Ruiz at pages 783-787, it clearly appears that the trial judge did not make an express finding that Ruiz’s Faretta motion was untimely made because the motion could and should have been made much earlier, notwithstanding the prosecutor’s argument, citing in support several cases including Windham, that the court should so find. (Ruiz, supra, 142 Cal.App.3d at p. 785 .) Because, I think, he was either unmindful or did not fully comprehend the pivotal significance decision-wise of footnote 5 upon Windham’s "reasonable time” requirement, the trial judge treated Ruiz’s Faretta motion as if it addressed in the first and last instance the exercise of the court’s sound discretion. I quote from Ruiz the trial judge’s findings: “ . . the Court finds that there has been, or nothing has been demonstrated to this Court that Mr. Ruiz is trying to delay the case by these requests, but based upon, and I have reviewed the cases you have cited, and based upon that and the statements regarding the difficulties of the case, the fact of the difficulties of serving this witness and also in conjunction with matters that were taken up in the in camera hearing as related to some of these matters you have mentioned, . . . your request to have Counsel relieved and to proceed representing yourself is denied.’ ” (Ruiz, at p. 786.)

However, under Windham’s “reasonable time” requirement in light of footnote 5, a criminal defendant’s constitutional pretrial Faretta motion is *105 timely and should be honored as being such albeit made in close proximity to the start of trial when the record made on the motion contains some showing that there is reasonable cause for the lateness of the request. In other words: “When the lateness of the request and even the necessity of a continuance can be reasonably justified the request should be granted.” (People v. Windham, supra, 19 Cal.3d at p. 128, fn. 5 .)

Sensing that the trial judge had not initially tested the lateness of Ruiz’s request by the “reasonable standard” mandated to the trial court by Wind-ham’s footnote 5’s bottom line, the Ruiz court saw its appellate function as follows: “Appellant in a single argument for reversal urges that the trial court erred in denying appellant’s motion to proceed in propria persona. [Citations.] Resolution of the issue is dependent upon finding whether the motion was a timely one, requiring the court to grant it if appellant’s choice to represent himself was voluntarily and intelligently made. If we find appellant’s motion to represent himself to be untimely, we must determine whether the court’s denial of his request, based on the need for a continuance, was an abuse of discretion.” (Ruiz, supra, 142 Cal.App.3d at p. 782 .)

The Ruiz court found that under the total circumstances known to the trial judge after his full inquiry, Ruiz’s Faretta motion, made three days before the date of trial, was at law untimely. Consequently, under Wind-ham ’s footnote 5, Ruiz’s exercise of his right of self-representation was a matter left entirely unto the trial court’s sound discretion. The reason, however, Ruiz’s pretrial pro se request was untimely: “Appellant’s motion was unaccompanied by any showing of reasonable cause for its lateness.” (Ruiz, supra, 142 Cal.App.3d at p. 791 .)

At page 787, after noting that Ruiz’s Faretta motion followed on the heels of a denial of his motion to substitute counsel, the Ruiz court early hinted its ultimate holding, I quote: “The Faretta motion also was founded on appellant’s perception that his attorney was not investigating adequately appellant’s defense theory and on their disagreements over tactics. The record allows the inference that this was not a new thought upon the part of appellant, but appellant offered no excuse for failing to bring the motion earlier.” But, of course, an inference must be reasonably drawn from a fact supported by substantial evidence and not mere speculation. Quoting, then, Ruiz again: “The requirement of timeliness is to avoid unjustifiable delay or disruption of orderly court proceedings. Here, even though the trial judge expressly found there was no evidence that appellant had brought the motion for the purpose of delay, the manner in which the motion was brought and the reasons for making it show that disagreements had developed between appellant and his attorney over investigative efforts and trial tactics. Appellant had been in the local jail for three and one-half months and, *106 obviously, his disapproval of the defense tactics chosen by his attorney did not arise just six days before trial.” (Ruiz, supra, at p. 791 .)

However, whether Ruiz was correctly decided or not is not my present concern. The Ruiz court’s analysis determining footnote 5’s teaching is indisputably sound. Given the Ruiz court’s determination that the record lacked some showing of reasonable cause justifying the lateness of Ruiz’s Faretta motion, so be it.

I do find it provocative, however, that the Ruiz court informed Ruiz at 142 Cal.App.3d at page 788 , footnote 3 as follows: “Federal cases such as Fritz v. Spalding (9th Cir. 1982) 682 F.2d 782, 784 , and Chapman v. United States (5th Cir. 1977) 553 F.2d 886, 894-895 , hold that a Faretta motion is timely as a matter of law if made before trial, unless the trial court finds the motion was made for purposes of delay. We decline to follow these cases in light of the language of Windham.”

As I see it, in one sense meaningful the Ruiz court’s application of the “language of Windham ” did result in the Ruiz court following Fritz and Chapman . As we have noted, the Ruiz court concluded at law that which the trial court neglected to find as a fact, i.e., that Ruiz’s Faretta motion was untimely made because its lateness was not justified by any showing of reasonable cause. In sum, Ruiz’s motion could have and should have been made at an earlier date, as contended by the prosecution. However, the Fritz court at 612 F.2d at pages 784-785, set out instructions for trial courts’ use when determining whether a Faretta request is a tactic to secure delay: “The court must also examine the event’s preceding the motion, to determine whether they are consistent with a good faith assertion of the Faretta right and whether the defendant could reasonably be expected to have made the motion at an earlier time.”

To no one’s surprise, I would think, it develops, then, that the lower court’s federal standard, and Windham’s footnote 5 standard, both implementing the federal constitutional Faretta right, are, when properly applied, flip sides of the same coin reflecting from a different perspective the same legitimate concern, i.e., that the Faretta right be asserted in good faith and not for the purpose of delay, which is Fritz’s concern; and to disallow “misuse [of] the Faretta mandate as a means to unjustifiably delay a scheduled trial or to obstruct the orderly administration of justice,” which is the expressed concern of Windham’s footnote 5.

In defendant Moore’s case at bench under automatic review of a judgment of death by execution, I think it cannot reasonably be disputed that the Master Calendar Judge did not initially undertake to factually deter *107 mine whether the lateness of Moore’s constitutional Faretta request was or was not justified by good and sufficient cause. This fact is evidenced by the fact that the calendar judge’s findings are silent without an express finding that Moore’s assertion was untimely made. And, of course, this court cannot in this instance find from a silent record that the calendar judge impliedly found Moore’s motion to be untimely made. From a silent record, it is unthinkable that this court would, in effect, find that Moore lost, forfeited or waived exercise of his fundamental right of self-representation because it was not timely asserted. The fundamental right of self-representation is coextensive with the Sixth Amendment right to the assistance of counsel requiring of the court, I believe, that it indulge every presumption against waiver of both fundamental rights. (Johnson v. Zerbst, supra, 304 U.S. at p. 464 [82 L.Ed.2d at p. 1466].)

As we know, the record is not silent as regards Moore’s attempts to waive the right to the assistance of counsel. On this record, not once but thrice Moore knowingly, intelligently and unequivocally attempted to no avail to waive his right to the assistance of counsel, i.e., on Friday, March 16, on Monday, March 19, and in the trial department before commencement of trial on March 26, 1984, in accord with Faretta. As regards the timeliness of Moore’s Faretta assertion, however, the calendar judge as previously noted made no inquiry directed to determining whether reasonable cause did or did not exist justifying the lateness of his assertion. 7 Notwithstanding the *108 court’s oversight, the record contains not just “some” but a substantial showing of reasonable cause justifying the lateness of Moore’s Faretta request. Examination of the Clerk’s Transcript reveals that on January 23, 1984, Moore’s cause was called for trial but continued to March 5, 1984, at defense counsel’s request because as he stated: “The reason for the continuance is it’s a death penalty case, and I’m just simply not ready to try the case today. There are some documents that are needed by both the People and myself from out of state, both the State of Kansas and Colorado. I believe I’ve gotten most of the documents from those states, and I’m certain I don’t have all of it.”

The prosecution and Moore agreed to the court’s continuance of the trial date to March 5, when to Moore the court explained: “You have already waived time to today, and today is the 40th day. If you agree to this further continuance for Mr. Slick to prepare your defense, March 5th will also be the 40th day; giving us the same 20 days to bring you to trial as we have today. Do you understand this, sir?”

Eventually, Moore replied “yes,” he understood and his counsel told the calendar judge that he believed he would be ready next time. The Clerk’s Transcript reveals, however, that on March 5, the prosecutor assigned to try Moore’s case was “unable to announce ready” and Moore’s counsel’s one word response was “fine.” On Friday, March 9, 1984, however, it developed that the prosecutor was still engaged in a murder trial and Moore’s counsel was “about to go out on this John Carroll case.” Consequently, the calendar judge aged Moore’s case, “51 of 60” days, and continued it until March 16, 1984, which brings us to Friday’s hearing. It bears noting at this point that on Monday, March 19, 1984, the Master Calendar Judge opened the proceedings stating: “Mr. Moore, we are here to continue the matter that we started last Friday. Which now is reduced to a request by you to proceed in propria persona, [fl] You have filled out the four-page form entitled ‘Petition to Proceed in Propria Persona’ which the Court will order filed.”

*109 During Friday’s hearing, of course, the calendar judge, in a courtroom cleared of all spectators and the prosecutor, discussed at length Moore’s letter to the court dated March 10, 1984, reproduced in footnote 2, typed majority opinion, page 74.

The showing made to the calendar judge during Friday’s hearing, then, was before the calendar court during Monday’s Faretta hearing. Ultimately, all will agree, the time came during the Faretta hearing requiring the calendar judge to decide the timeliness of Moore’s assertion. Indulging every presumption against waiver of fundamental rights, the only reasonable inference to be drawn by the calendar judge from the record at hand is that Moore, if present, would have on March 5 and 9, engaged the court in discourse essentially no different than that of March 16 and 19, ultimately invoking his Faretta right. However, as we know, Moore remained, through no fault of his own, in a holding cell on March 5 and 9, under any analysis as an accommodation to otherwise engaged counsel for both parties to the lawsuit. If, however, Moore had been afforded his reasonable expectation to be present enabling him to address the court, his Faretta request would have been timely under Windham’s standard. Footnote 5 clearly instructed the calendar judge that if defense counsel seeks a continuance it would be illogical to deny Moore’s motion for self-representation simply because the motion is made in close proximity to trial. On March 5, we have noted, it was the prosecutor that moved for the continuance, but Windham’s logic would be no less applicable on March 5 as it would be to defense counsel’s motion affording him a continuance on March 9, 1984.

Moreover, on this record, the showing made on March 16 to the calendar judge is that March 5 is the earliest date that Moore decided that if he was not granted cocounsel status, he would unequivocally invoke his Faretta right. On this record, the showing is that it would not be reasonable to expect or the calendar judge to reason or find that Moore could have and should have asserted his Faretta right on or before January 23, 1984, or anytime thereafter until March 5, 1984. Moore’s letter is certainly some showing, I believe substantial, that before January 23, and until March 5, Moore’s personal choice was limited to proceeding as cocounsel with the consent of his appointed attorney. At no time during the hearing did appointed counsel refute that for months prior to March 5, he held Moore at bay while he thought about it. Reasonably, then, Moore would not assert his Faretta right before March 5, because he had no reason to so do. There is no showing of record that his attorney counseled with Moore between January 23 and March 5, 1984. Moore’s written word describing his state of mind during the period of time before March 5 must be viewed as credible and undisputed. Consequently, during the period January 20 through March 5, the actual “disagreement over trial strategy” Judge Wachtler *110 wrote about had not as yet occurred. The showing before the calendar judge is that on January 20 as far as Moore knew his counsel was competently investigating his case to the end of preparing an adequate defense. Moore at the time wanted only to equally share with his counsel the defense’s strategy decisions as a consequence of the investigation. In other words, during the period of investigation, Moore uncounseled and properly not released on bail was left in the dark, so to speak, and therefore had no choice but to cherish the fundamental right to the assistance of counsel. How it came to be, however, that on March 5, the trust and confidence requisite to the attorney-client relationship reached its irreparable breaking point in Moore’s instance, the calendar court learned during colloquy with Moore and from reading his letter explaining his plight. Unlike the record in Ruiz’s case, then, the showing made in the calendar court admits of a finding that going pro. per. was a new thought as of March 5, when, as the letter shows, Moore’s attorney asked him if he wanted to go pro. per. Moreover on March 16 and 19, again unlike Ruiz’s, Moore’s constitutional Faretta request was accompanied by an affirmative substantial showing of reasonable cause for its lateness in close proximity to trial.

Consequently, the Master Calendar Judge’s express findings (see maj. opn., p. 78), as I assess them, simply reflect his concern that an old case calendar-wise should go out to trial because counsel are finally ready, showing little regard for Moore’s constitutional right to proceed pro se. At times from reading the record, my sense is that the calendar judge would have granted Moore his Faretta right if Moore had not needed time to prepare. Under Windham’s footnote 5, however, Moore’s request was timely asserted. Unquestionably, at law, then, Moore should have been granted a reasonable time to prepare to defend. Fundamental fairness rejects the notion that Moore’s exercise of his Faretta right turns on his willingness not to prepare his own defense. (People v. Morgan (1980) 101 Cal.App.3d 523, 527-529 [ 161 Cal.Rptr. 664 ]; Armant v. Marquez (9th Cir. 1985) 772 F.2d 552, 558 .)

Respectfully, I would reverse the judgments; and because I would, I abstain from discussing defendant Moore’s remaining contentions on appeal. On this record, the majority’s holding denies defendant Moore a right thought and implicitly said to be his by the Framers of the Bill of Rights. As I see the record, the Windham court had defendant Moore’s case in mind when in footnote 5 the court instructed that the “reasonable time” requirement must not be used as a means of limiting a defendant’s constitutional right of self-representation. The Windham court understood that justice is offended when a procedural rule designed to insure that criminal defendants reasonably exercise their right of self-representation is used to prevent them from exercising the right, particularly when the showing is made that the right was requested at the earliest practical opportunity to *111 directly address the court after deciding to request exercise of the right. In any event, I believe that the lifeblood of the law, i.e., respect for the individual, requires of this court’s majority, if not a federal court, that before judgment is executed, defendant Moore be informed of the date before which his Faretta right would not have been held untimely, i.e., forfeited or deemed waived at law. I, of course, have concluded, in light of the record, that defendant Moore did not forfeit or waive his constitutional right to act as his own lawyer at trial because he timely asserted his right, i.e., the record substantially shows reasonable cause justifying the lateness in close proximity to trial of his request. Further, the Master Calendar Judge abused discretion when denying Moore, without due consideration, a reasonable time to prepare his choice of defense strategy. Therefore, the judgments, I hold, should be reversed.

Appellant’s petition for rehearing was denied January 9, 1989, and the opinion was modified to read as printed above. Arguelles, J., and Eagleson, J., did not participate therein.

Presiding Justice, First Appellate District, Division Three, assigned by the Chairperson of the Judicial Council.

It bears noting that in People v. Windham (1977) 19 Cal.3d 121 [ 137 Cal.Rptr. 8 , 560 P.2d 1187 ], the court, at page 129, briefly engaged in waiver analysis, holding in effect that Windham’s failure to make a pretrial Faretta request amounted to a waiver of the unconditional right of self-representation. Given, then, defendant Moore’s pretrial Faretta request made in close proximity to the date of his trial, it cannot be found that Moore waived or forfeited his constitutional right to be his own lawyer at trial if reasonable cause justifying the lateness of his request appears of record. (Windham, supra, fn. 5 , at p. 128.) As I see this case, then, if the Master Calendar Court had but thought to indulge waiver analysis, the court undoubtedly would have extended its protecting duty to Moore’s request, afforded by Johnson v. Zerbst (1938) 304 U.S. 458 [ 82 L.Ed. 1461 , 58 S.Ct. 1019 , 146 A.L.R. 357 ] at pages 464-465 [ 82 L.Ed. 1461 at pages 1466-1467], Moore’s Sixth Amendment rights of self-representation and to the assistance of counsel are sides of the same coin, both cherished fundamental rights. Having focused in on waiver during its decisionmaking, the calendar court would have recalled that this court would not presume waiver of a fundamental right from a silent record.

The right to defend is personal, i.e., the criminal defendant must be free personally to decide whether the assistance of counsel is to his advantage in a particular case. Respect for the individual’s right of free choice, acknowledged to be the lifeblood of the law, mandates that the Faretta right be honored. (Faretta v. California, supra, 422 U.S. at p. 834 [ 45 L.Ed.2d at p. 581 ].)

“A defendant has the moral right to stand alone in his hour of trial. The denial of that right is not to be redeemed through the prior estimate of someone else that the practical position of the defendant will be enhanced through representation by another, or the subsequent conclusion that defendant’s practical position has not been disadvantaged.” (United States v. Dougherty (D.C. Cir. 1972) 473 F.2d 1113, 1128 .)

Footnote 5 of People v. Windham, supra, reads 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 which should consider relevant factors such as whether or not defense counsel has himself indicated that he is not ready for trial and *101 needs further time for preparation. Thus if the reason why a defendant makes a request for self-representation under such circumstances simply because the motion is made in close proximity to trial is because he disagrees with his appointed counsel’s desire for a continuance, some delay may be necessary whether or not the defendant’s motion is granted. In such a case the very reason underlying the request for self-representation supplies a reasonable justification for the delayed motion. Furthermore, as defense counsel himself seeks a continuance for the purpose of further trial preparation it would be illogical to deny a motion for self-representation under such circumstances simply because the motion is made in close proximity to trial. There may be other situations in which a request for self-representation in close proximity to trial can be justified. When 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, the 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.”

Currently, of course, there prevails a contrary analysis of Windham and footnote 5 holding as in People v. Hall (1978) 87 Cal.App.3d 125 , at page 131 [ 150 Cal.Rptr. 628 ], that a Faretta motion made the day before trial or in close proximity forthwith addresses the discretion of the trial judge because the defendant's request was not made within a reasonable time before the commencement of trial. (Id., at p. 132.) Notable is the fact that the Hall court did not discuss the factual issue lurking in footnote 5, i.e., whether or not there was some show *103 ing of reasonable cause justifying the lateness of the defendant’s request. Moreover, when holding in effect that Hall had waived or forfeited his absolute right to represent himself, the Hall court, at page 131, acknowledged being guided in part by “dictum" in People v. Potter (1978) 77 Cal.App.3d 45, 50 [ 143 Cal.Rptr. 379 ]. In Potter , the court concluded that the defendant’s pretrial request on the morning of the day set for trial was not unequivocal. Instead of resting its decision on the basis of no proper Faretta request, the Hall court, in dictum, held there was no Sixth Amendment deprivation because the claimed constitutional Faretta right was not made within Windham’s reasonable time prior to the commencement of trial. Consequently, the Hall court, at page 132, reviewed the trial court’s exercise of discretion, which it found to be proper, under Denno standard and that of Windham by adoption, a standard that both Denno and Windham expressly limited its application to instances of Faretta requests made after commencement of trial or midtrial. (See People v. Windham, supra, 19 Cal.3d at pp. 126,128.)

In Ruiz, supra, 142 Cal.App.3d 780 , the court at page 791 held that a constitutional Faretta request made three days before start of trial was within Windham’s footnote 5’s “close proximity to trial” and untimely at law because of no showing of any reasonable cause excusing the motion’s lateness; consequently, the Ruiz, supra, court, at pages 791-792 approved, in accord with Potter and Hall , standards for trial court discretion initially designated for application to after-start-of-trial or midtrial Faretta requests.

Interestingly, the Hall court, 87 Cal.App.3d at page 131 , referred to the language in Wind-ham's footnote 5 as being “dictum.” It appears then that trial courts are denying the constitutional right of self-representation when requested within a week or less of the date set for trial in the exercise of discretion. Discretion, however, that is in the main based on courts of appeal dictum interpreting Windham's dictum. But, of course, in time dictum can become law; the issue, as I see it presently, is whether dictum upon dictum has in effect rendered meaningless the constitutional Faretta right of criminal defendants, like Moore, who show a bona fide reason for making a late request within close proximity to trial.

In Herrera, supra, 104 Cal.App.3d 167 the court found timely a Faretta request made in close proximity to trial but without a request for a continuance to prepare. I quote at page 174 the court’s reasoning: “One further factor to be considered is the cause for the lateness of the request [citation]. [^] Here Herrera’s request came immediately on the heels of the trial court’s denial of his request to enter an additional plea of not guilty by reason of insanity, a motion that was made first on April 11, 1979, and continued until April 16 at the request of the district attorney. []]] To hold a motion for self-representation made by a defendant at his earliest opportunity is untimely when that ‘earliest opportunity’ appears to be shortly before *104 trial, would effectively thwart defendant’s constitutional right to proceed in propria persona as established in Faretta v. California (1975) 422 U.S. 806 [citation, fn. omitted].”

Interestingly, however, the Herrera court, after considering footnote 5, assumed arguendo that Herrera’s Faretta request was forfeited, i.e., no longer absolute but subject to trial court discretion, because not made within a reasonable time prior to commencement of trial. ( 104 Cal.App.3d at p. 173 .) Interestingly, because the Herrera court, by assuming arquendo authorized trial courts to employ a balancing factor which the Windham court, supra, 19 Cal.3d at page 128 specifically instructed to be used in assessing Faretta requests made after the commencement of trial, adding as a factor the cause for the lateness of the request. The Herrera court’s approach prompts the thought that the time is at hand to paraphrase that which Justice Traynor once said of vague criminal statutes, i.e., Windham’s reasonable time requirement is so vague in light of footnote 5 that people of common intelligence must necessarily guess at its meaning and differ as to its application. (See People v. McCaughan (1957) 49 Cal.2d 409, 414 [ 317 P.2d 974 ].)

In light of the majority’s view (see maj. opn., ante, at p. 81), I have rereviewed the pretrial record made in the Master Calendar Court. Respectfully, but no less vehemently, I disagree, finding no reasonable basis for the majority’s assertion that the trial court soundly reasoned that granting Moore his right of self-representation implemented by a continuance would interfere with orderly administration of justice and prejudice the prosecution. In my view of the record finding therein a substantial showing of reasonable cause for the lateness of the request (Windham’s fn. 5), it follows that the Master Calendar Court erroneously denied Moore’s timely made at law Faretta request. The reasons expressed by the calendar court, then, are essentially irrelevant. But even assuming arguendo Hall court analysis, (see dissent, fn. 5), I would find the trial court’s reasons infirm. Manifestly, Moore’s motion invoking his Faretta right and a reasonable continuance came at time when there was no danger of disrupting pretrial and trial proceedings already in progress. The reasonable delay incident to Moore’s requests would not have served to obstruct the orderly administration of justice; however, it would have assured the fair administration of justice by honoring Moore’s fundamental right of personal choice. Moreover, surely a trial department would have opened during the reasonable delay.

The trial court did not expressly find that to “grant” would prejudice the prosecution. Based on this record, an implied finding is not warranted. To be sure, the deputy district attorney represented that three out-of-state law enforcement witnesses indispensable but solely for Moore’s pretrial motions would experience “extreme hardship” relative to reconciling their competing vacation schedules. However, the trial court was advised that the witnesses were “on call ready to come in within a day’s notice of the time we are actually sent out to trial.” Moreover, it clearly appears of record that the prosecutor’s concern was that he “might [not] again be so fortunate to marshal them again together in the distant future.” But of *108 course, Moore was not seeking a continuance “in the distant future,” nor was he entitled to one.

Finally, strikingly opposite to the facts in Fritz , defendant Moore’s pretrial conduct is shown of record to be faultless, in no way causing the prior delays or continuances granted at the request of the prosecution and Moore’s counsel when announcing they were not ready to proceed. And, of course, when assigned defense counsel did state he was “ready for trial,” Moore justifiably disagreed. Counsel’s pretrial investigation of the witness, Jones, was neither adequate nor complete. (See maj. opn., ante, p. 75, fn. 3; compare with 1 ABA Standards for Criminal Justice, std. 4-4.1; see Approved Draft 1971, pp. 225-228, 231.) Moreover, one can hardly say realistically that the defense is “ready” if a defendant has already parted ways with his appointed counsel. (Chapman v. United States, supra, 553 F.2d at p. 895 ; see also pp. 891-895.)