The opinion
WOODS, J., Concurring.
I agree with my colleagues the judgment must be reversed because of Faretta (Faretta v. California (1975) 422 U.S. 806 [ 95 S.Ct. 2525 , 45 L.Ed.2d 562 ]) error that cannot be deemed harmless under Chapman (Chapman v. California (1967) 386 U.S. 18 [ 87 S.Ct. 824 , 17 L.Ed.2d 705 , 24 A.L.R.3d 1065 ]). I write separately to suggest a way to minimize recurring Faretta appeals and appellate Faretta inconsistency.
The starting point is Faretta: “Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” (Faretta v. California, supra, 422 U.S. at p. 835 [ 95 S.Ct. at p. 2541 ].)
Faretta did not specify what dangers and what disadvantages the defendant should (not must) be made aware of. Our California Supreme Court has been similarly unspecific. For example, People v. Bloom, after quoting the above Faretta language, states: “The test of a valid waiver of counsel is not whether specific warnings or advisements were given but whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.” (People v. Bloom (1989) 48 Cal.3d 1194, 1225 [ 259 Cal.Rptr. 669 , 774 P.2d 698 ].) To like effect are People v. Pinholster (1992) 1 Cal.4th 865, 928-929 [ 4 Cal.Rptr.2d 765 , 824 P.2d 571 ] (“As long as the record as a whole shows that the defendant understood the dangers of self-representation, no particular form of warning is required. ‘The test of a valid waiver of counsel is not whether specific warnings or advisements were given but whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.’ ”) and People v. Stansbury (1993) 4 Cal.4th 1017, 1048 [ 17 Cal.Rptr.2d 174 , 846 P.2d 756 ] (“No particular form of words is required in admonishing a defendant who seeks to forego the right to counsel and to represent himself.”).
If, as our California Supreme Court has consistently said, no particular form of words is required and the test is not whether specific warnings or advisements were given then how are the trial courts to know what they should (must?) advise a prospective in propria persona defendant and how are the appellate courts to determine from the record as a whole whether a defendant’s self-representation choice was intelligent?
*324 From my perusal of the cases the answer is the trial courts do not know what to advise defendants and appellate courts reach irreconcilable results in their “whole record” assessments.
The instant case is illustrative. An exceptionally experienced judge (Superior Court Judge Nancy Brown) only ascertained appellant could read and write, and understood his right to counsel. Nothing was said about dangers and disadvantages. My colleagues reverse because the trial court did not, among other things, advise appellant of the penal consequences of the charged offense. People v. Harbolt (1988) 206 Cal.App.3d 140, 149 [ 253 Cal.Rptr. 390 ] holds such an advisement is unnecessary.
My colleagues state “it is difficult, if not impossible, to determine whether appellant would [have chosen self-representation] had he been fully informed of. . . dangers and risks.” (Maj. opn., ante, at p. 322.) I agree. Yet our Division Five colleagues, on indistinguishable facts, abruptly reach an opposite conclusion. (People v. Wilder (1995) 35 Cal.App.4th 489, 502 [ 41 Cal.Rptr.2d 463 ] [“As noted previously, defendant did not desire to be represented by the counsel that was offered. A recitation of the dangers and disadvantages of self-representation would have led to the same result; he would have voluntarily proceeded in pro se. The trial would have still occurred with defendant representing himself. Nothing would have changed had defendant been advised of the dangers of self-representation.”].)
Such appellate pronouncements (a recitation of dangers and disadvantages makes no difference) do not encourage time-pressed trial courts to conduct meaningful advisements.
There are other appellate discouragements. Some cases incorrectly (I believe) hold “[t]he burden is on the defendant to demonstrate he did not knowingly and intelligently waive his right to counsel.” (People v. McArthur (1992) 11 Cal.App.4th 619, 627 [ 14 Cal.Rptr.2d 203 ]; People v. Harbolt, supra, 206 Cal.App.3d 140, 149 ; People v. Barlow (1980) 103 Cal.App.3d 351, 370-371 [ 163 Cal.Rptr. 664 ].) Other cases incorrectly (I believe) hold defendant’s competence to waive counsel is a determination within the trial court’s discretion which, absent manifest abuse, cannot be disturbed on appeal. (People v. Salas (1978) 77 Cal.App.3d 600, 605 [ 143 Cal.Rptr. 755 ]; People v. McArthur, supra, 11 Cal.App.4th 619, 627 .)
So long as we instruct trial courts “no particular form of warning is required,” trial courts will give no particular form of warning. The result will continue to be improvised, erratic, and dissimilar advisements pregnant with arguable claims of Faretta error.
It need not be so. When our Supreme Court addressed a similar issue, how to ensure that a guilty plea was knowingly and voluntarily made, it specified *325 the rights a defendant had to be advised of by the trial court. (In re Tahl (1969) 1 Cal.3d 122, 132 [ 81 Cal.Rptr. 577 , 460 P.2d 449 ].) It did not “require the recitation of a formula by rote or the spelling out of every detail” (ibid.) but the Supreme Court did identify the critical subjects trial courts were required to address. By doing so, the Supreme Court provided assurance to trial courts that error could be avoided if its guidelines were followed.
I suggest our Supreme Court provide similar guidelines for Faretta waivers. Such guidelines need not be “a formula by rote or the spelling out of every detail.” Two decades ago Justice Gardner (our judicial Will Rogers, wise and revered) suggested such guidelines. (People v. Lopez (1977) 71 Cal.App.3d 568, 572-574 [ 138 Cal.Rptr. 36 ].) His suggestions have largely been ignored.
Surely a defendant should be told the stakes: the extent of possible punishment. Similarly, a defendant should be advised there are technical rules applicable to every phase of a trial (voir dire, opening statements, direct and cross-examination, introduction of exhibits, jury instructions, motions, and argument). Knowing those rules may mean acquittal; not knowing them may mean conviction. Additionally, a defendant should be advised he or she is responsible for the entire defense: procuring the attendance of defense witnesses, asserting defenses, etc. It might also be useful to explain there are other unanticipated risks and dangers that only a lawyer may be able to identify and cope with and such risks may mean the difference between acquittal and conviction.
Implementation of such guidelines need not be time consuming. They could be incorporated in a form to be signed by the defendant and briefly inquired about by the trial court. Or, even if orally conveyed by the trial court, advisements need take only a few minutes.
Not only would such guidelines reduce Faretta appeals and perhaps even induce otherwise inclined defendants to be represented by counsel, but they also would ensure that a defendant, before contributing to his own conviction or causing a trial to become a mockery, was at least notified of self-representation risks and knowingly accepted them.
A petition for a rehearing was denied December 15,1997, and the opinion was modified to read as printed above. Respondent’s petition for review by the Supreme Court was denied March 18, 1998.