People v. Lynch

MORENO, J., Dissenting.

In this death penalty case, the majority concludes that the trial court properly denied defendant’s motions for self-representation made pursuant to Faretta v. California (1975) 422 U.S. 806 [ 45 L.Ed.2d 562 , 95 S.Ct. 2525 ] (Faretta), because the motions were untimely. I disagree. In Faretta , the high court explained that it was error to deny the defendant’s otherwise valid motion for self-representation made “weeks *768 before trial.” (Id. at p. 835.) We have explained 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 the commencement of trial.” (People v. Windham (1977) 19 Cal.3d 121, 127-128 [ 137 Cal.Rptr. 8 , 560 P.2d 1187 ], fn. omitted (Windham).) “Erroneous denial of a Faretta motion is reversible per se. (McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8 [ 79 L.Ed.2d 122 , 104 S.Ct. 944 ].)” (People v. Dent (2003) 30 Cal.4th 213, 217 [ 132 Cal.Rptr.2d 527 , 65 P.3d 1286 ] (Dent).) Defendant made his initial Faretta motion roughly four weeks before pretrial motions were scheduled to begin, and over one month before pretrial motions actually began. The determination of whether a Faretta motion is timely should depend, not upon a totality of the circumstances as the majority suggests, but upon the only relevant factor— time. Because defendant’s Faretta motions were otherwise proper, and because they were made “weeks before trial,” as in Faretta , the trial court erred by denying the motions as untimely. This error mandates reversal; accordingly, I dissent.

I briefly review the pertinent facts to highlight the relevant timeline. Defendant appeared for arraignment in October 1987. Defendant’s preliminary examination spanned an eight-month period, ultimately concluding in August 1988. Defendant remained incarcerated for the next three years while numerous continuances were granted. As defendant explained, this delay was due both to his counsel being “busy with other cases, with other clients,” as well as the district attorney being “tied up.” Finally frustrated with the slow progression of his case, and troubled by his lack of participation in his defense, defendant sought to substitute counsel. Failing at this endeavor, defendant decided to represent himself.

As the majority acknowledges, defendant’s initial Faretta request was not made for dilatory purposes. Defendant had not made numerous such requests, or requests to substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 [ 84 Cal.Rptr. 156 , 465 P.2d 44 ], during the four-year period he spent awaiting trial. (See maj. opn., ante, at p. 727 [“the nearly four-year delay in this case cannot be attributed to defendant”].) It is also undisputed that defendant’s request was unequivocal. Nonetheless, defendant’s motion was denied on timeliness grounds. Certain that the trial court’s decision was erroneous, defendant renewed his motion for self-representation, and the trial court again denied the motion on grounds of timeliness.

Faretta explains that a defendant possesses the right to conduct his or her own defense provided that he or she knowingly, voluntarily, intelligently, and unequivocally asserts that right in a timely fashion, and is not acting with the purpose of delay. ( Faretta, supra, 422 U.S. at pp. 835-836; see also Windham, *769 supra, 19 Cal.3d at p. 128 .) The high court has repeatedly affirmed a criminal defendant’s right to waive counsel and proceed by way of self-representation. (See, e.g., Indiana v. Edwards (2008) 554 U.S. 164, 170-171 [ 171 L.Ed.2d 345 , 128 S.Ct. 2379, 2383-2384 ] [“[t]he Court’s foundational ‘self-representation’ case, Faretta , held that the Sixth and Fourteenth Amendments include a ‘constitutional right to proceed without counsel when’ a criminal defendant ‘voluntarily and intelligently elects to do so.’ 422 U.S. [at p.] 807 . . . (emphasis in original)”]; United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 150-151 [ 165 L.Ed.2d 409 , 126 S.Ct. 2557 ] [holding that the trial court’s erroneous deprivation of the defendant’s 6th Amend, right to choice of counsel entitled him to reversal of his conviction]; McKaskle v. Wiggins, supra, 465 U.S. at p. 174 [holding that the United States Constitution “implies a right in the defendant to conduct his own defense”].)

Following the high court’s decision in Faretta , we were called upon to examine whether a midtrial motion for self-representation was timely. (Windham, supra, 19 Cal.3d at p. 124 .) We concluded that the right to self-representation was unconditional if asserted unequivocally, voluntarily, and intelligently “within a reasonable time prior to the commencement of trial.” (Id. at p. 128.) Once trial commences, however, we concluded that it is within the “sound discretion of the court” to determine whether a defendant may proceed by way of self-representation. (Ibid.)

Here, it is undisputed that defendant’s request to represent himself was knowing, voluntary, intelligent, unequivocal, and not made for the purpose of delay. The sole question for this court’s consideration is whether defendant’s motions for self-representation, made “weeks before trial” as in Faretta , were untimely. (Faretta, supra, 422 U.S. at p. 835 .)

As the majority acknowledges, we have held that an otherwise proper Faretta motion made within a reasonable time prior to the commencement of trial must be granted. (Maj. opn., ante, at pp. 721-722; Windham, supra, 19 Cal.3d at p. 128 .) The majority explains that “the high court has never delineated when a motion may be denied as untimely. Nor has this court fixed any definitive time before trial at which a motion for self-representation is considered untimely . . . .” (Maj. opn., ante, at p. 722.) The majority explains that there are two lines of cases, one of which concludes that Faretta motions made on the eve of or during trial are untimely, and the other of which explains that Faretta motions made days or weeks in advance of trial are unquestionably timely. From these two lines of cases, the majority draws the conclusion that “our refusal to identify a single point in time at which a self-representation motion filed before trial is untimely indicates that outside these two extreme time periods, pertinent considerations may extend beyond *770 a mere counting of the days between the motion and the scheduled trial date.” (Maj. opn., ante, at p. 723.)

The majority’s reasoning suffers from two flaws. First, and most significantly, the instant motions were made months before trial began, and therefore do not fall within the gray area between certainly untimely and certainly timely motions for self-representation. The majority cites two cases—People v. Joseph (1983) 34 Cal.3d 936, 944 [ 196 Cal.Rptr. 339 , 671 P.2d 843 ] and Dent, supra, 30 Cal.4th at page 217—for the proposition that Faretta motions made days or months before the commencement of trial are timely. Although the majority endeavors to distinguish this authority as examples of undeniably timely Faretta motions, the cases share striking similarity to the one at bar. In Dent, the defendant’s Faretta motion was made on the day trial had been scheduled to begin, but was continued through no fault of the defendant’s. ( Dent, supra, 30 Cal.4th at pp. 215-216.) We concluded that “since no trial was imminent, and did not in fact occur for over four months, the motion appears timely.” (Dent, supra, 30 Cal.4th at p. 221 .) In Joseph , we held that “[t]he record establishes that appellant’s Faretta motion was timely proffered. The request was made some five months before trial and almost two months before any pretrial motions were heard.” (Joseph, supra, 34 Cal.3d at p. 944 .) Similarly, here, defendant’s Faretta motions were made weeks before pretrial motions began and nearly five months before the jury was empanelled. We concluded in Joseph that because “an unequivocal assertion of appellant’s desire to proceed pro se was made well in advance of trial ... the denial of that motion constituted error. Since the erroneous denial of a timely proffered Faretta motion is reversible per se, the judgment of conviction must be set aside.” (Joseph, supra, 34 Cal.3d at p. 939 .) That same result is compelled here.

The second flaw with the majority’s reasoning is its conclusion that factors other than time may be considered when determining whether a Faretta motion is timely. The majority explains that a court should consider “not only the time between the motion and the scheduled trial date, but also such factors as whether trial counsel is ready to proceed to trial, ... the reluctance or availability of crucial trial witnesses, the complexity of the case, any ongoing pretrial proceedings, and whether the defendant had earlier opportunities to assert his right of self-representation.” (Maj. opn., ante, at p. 726.) As support for its position, the majority points out the potential pitfalls associated with the Ninth Circuit’s view that a Faretta motion made any time prior to the commencement of trial is timely (see, e.g., Marshall v. Taylor (9th Cir. 2005) 395 F.3d 1058, 1061, fn. 17 ; Avila v. Roe (9th Cir. 2002) 298 F.3d 750, 753 [Faretta request is timely if made before jury empanelment unless it is shown to be a tactic to secure delay]; Savage v. Estelle (9th Cir. 1990) 924 F.2d 1459, 1463, fn. 7 [a Faretta motion made one week prior to commencement of voir dire was timely]; accord, Armant v. Marquez *771 (9th Cir. 1985) 772 F.2d 552, 555 )—suggesting that the Ninth Circuit approach is myopic because “nothing in Faretta or its progeny either expressly or implicitly precludes consideration of factors other than the number of weeks between the self-representation motion and the trial in determining timeliness in this more complex and serious scenario [of a capital case].” (Maj. opn., ante, at p. 725.)

This case does not demand a new test be developed to ascertain the timeliness of a Faretta motion. We need not articulate a bright-line test consistent with the Ninth Circuit’s that a Faretta motion made even one day prior to commencement of trial is timely. Here, defendant’s motions were made weeks before pretrial proceedings began, and months prior to jury empanelment. But just as we need not develop a bright-line test, we are also not called upon here to go beyond our holding in Windham that an otherwise proper Faretta motion must be granted if made “within a reasonable time prior to the commencement of trial.” (Windham, supra, 19 Cal.3d at p. 128 , italics added.) Indeed, we noted that our “reasonable time” requirement should “not be used as a means of limiting a defendant’s constitutional right of self-representation,” but rather to limit a defendant’s ability to cause delay or obstruct the orderly administration of justice. (Id. at p. 128, fn. 5, italics omitted.)

Ignoring this admonition, the majority adopts a test for timeliness that examines the time between a defendant’s Faretta motion and the commencement of trial, as well as trial counsel’s readiness, witness availability, and other pretrial proceedings. In Windham , we crafted a test to determine whether a trial court should exercise its discretion to grant a defendant’s untimely motion for self-representation that addressed, among other factors, “the quality of counsel’s representation of the defendant, the defendant’s 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.” (Windham, supra, 19 Cal.3d at p. 128 .) In the wake of this decision, trial courts will be placed in the confusing position of assessing similar factors to determine both whether a pretrial Faretta motion is timely, and whether a midtrial, untimely, Faretta motion should be granted.

To reach this result, the majority relies on our decisions in People v. Hamilton (1985) 41 Cal.3d 408, 419-420 [ 221 Cal.Rptr. 902 , 710 P.2d 981 ] (Hamilton I) and the decision subsequently affirming it, People v. Hamilton (1988) 45 Cal.3d 351 [ 247 Cal.Rptr. 31 , 753 P.2d 1109 ] (Hamilton II) (collectively, Hamilton), in which we concluded that a Faretta motion made about one month before trial, but in the midst of an extensive Penal Code sections 1538.5 and 995 hearing, was “ ‘untimely within the context of this *772 protracted . . . hearing,’ and the trial court acted within its discretion in denying it. ([Hamilton II,] at p. 363, incorporating Hamilton I, at p. 420.) Thus, in Hamilton II, we concluded that the defendant’s pretrial self-representation motion, made about a month before trial, was untimely in light of the surrounding circumstances.” (Maj. opn., ante, at p. 724.)

The majority’s reliance upon Hamilton is misplaced. Hamilton addressed the unique circumstance of how to treat a defendant’s Faretta motion made during a protracted (in that case, two-month-long) pretrial hearing. We concluded that such a motion should be treated as an untimely midtrial motion, and the Windham factors should be applied. In so doing, we concluded that “the court properly exercised its discretion under Windham in denying the motion on the ground that defendant had not stated a valid reason for relieving counsel and was grasping at anything to delay the proceedings.” (Hamilton I, supra, 41 Cal.3d at p. 420 .) Here, in contrast, no protracted hearing complicated the assessment of whether defendant’s Faretta motion was timely, and the majority acknowledges that the motion was not made for purposes of delay. Hamilton is inapt, and does not compel or support the adoption of a totality of the circumstances test to assess the timeliness of a Faretta motion.

Even assuming, arguendo, that a totality of the circumstances test ought to be conducted, it is not clear to me that the trial court properly denied the motion in light of all of the circumstances. The majority acknowledges that although the litigation had been proceeding for approximately four years at the time defendant made his Faretta motions, the delay was not defendant’s fault. (Maj. opn., ante, at p. 727.) The majority suggests that defendant does “not thereby escape any responsibility for timely invoking his right to self-representation” (ibid.), suggesting a proper factor for the court to consider is whether defendant could have but did not make a self-representation motion earlier in the proceeding (maj. opn., ante, at pp. 726, 727). The majority further contends that the complexity of the issues, the age of witnesses, the potential for further delays, and the readiness of the parties support the trial court’s denial of the motion. (Maj. opn., ante, at pp. 727-728.) An examination of each of these concerns suggests that they are not, individually or collectively, sufficient to deny defendant’s constitutional right to represent himself.

Complexity of the issues is ever present in a capital proceeding, but this court has unambiguously concluded that the right to self-representation attaches even in such cases. (See People v. Stansbury (1993) 4 Cal.4th 1017, 1062 [ 17 Cal.Rptr.2d 174 , 846 P.2d 756 ]; People v. Bloom (1989) 48 Cal.3d 1194, 1223 [ 259 Cal.Rptr. 669 , 774 P.2d 698 ]; People v. Teron (1979) 23 *773 Cal.3d 103, 113 [ 151 Cal.Rptr. 633 , 588 P.2d 773 ].) Indeed, in our recent decision in People v. Butler (2009) 47 Cal.4th 814, 827 [ 102 Cal.Rptr.3d 56 , 219 P.3d 982 ], we acknowledged the obstacle presented by the defendant’s numerous disciplinary infractions while incarcerated, which limited his ability to fully research his defense. The trial court revoked his pro se status shortly before the beginning of trial, and we concluded that this revocation was erroneous. (Ibid.) We explained that, while the trial court may have reasoned that it did not make sense to allow the defendant to proceed by way of self-representation because his ability to research and investigate his defense was limited, the trial court’s decision was nonetheless “inconsistent with the requirements of Faretta and its progeny” and was therefore erroneous. (Id. at p. 828.) Here, defendant faces no similar limitation with respect to his ability to conduct his own defense, and the fact that his case is a capital one is certainly not a sufficient justification for denying his Sixth Amendment right to self-representation.

The age of the witnesses is irrelevant to a consideration of the propriety of a motion for self-representation, particularly where, as here, the testimony of the elderly witnesses had been videotaped at defendant’s preliminary hearing. To the extent that witnesses available in October 1991 might not later be able to provide live testimony, such a consideration should not weigh against granting a Faretta motion. Although live testimony is certainly preferred, it is not the case here, where the testimony has been preserved, that the evidence provided by those witnesses would be lost. Moreover, four years passed between defendant’s arraignment and the commencement of trial, and numerous continuances were granted at the behest of both defense counsel and the district attorney; if age and availability of witnesses constituted an overriding concern, this delay should not have been tolerated. It should not now justify the denial of defendant’s timely invocation of his right to self-representation, particularly where it is unclear that defendant’s exercise of that right would have caused any further delay or otherwise impacted the ability of the witnesses to testify.

The potential for delay is another factor cited by the majority in support of its conclusion that a trial court may apply a totality of the circumstances test to determine whether a pretrial Faretta motion is timely. (Maj. opn., ante, at p. 728.) The majority places weight on the fact that defendant replied “Yeah” and “not sure” when asked by the court whether he was “talking about months” of time needed to prepare his case for trial. The majority indicates that a trial court may properly consider whether further delay will be caused in determining whether the invocation of the right to self-representation is timely, explaining that “[t]he reasonable import of [defendant’s] comments is *774 that if the self-representation motion had been granted, defendant would have required an undetermined amount of time to investigate and prepare for trial.” CIbid.)

The majority’s reasoning is deficient in two respects. First, it conflates two separate, independent grounds for denying a Faretta motion—whether the motion was timely and whether it was made for dilatory purposes. As the majority notes, “a Faretta motion may be denied if . . . the motion is made for purpose of delay.” (Maj. opn., ante, at pp. 721-722, citing People v. Marshall (1997) 15 Cal.4th 1, 23 [ 61 Cal.Rptr.2d 84 , 931 P.2d 262 ].) Thus, the majority is correct that a trial court may assess the potential for delay in deciding whether to deny a Faretta motion because it was made for a dilatory purpose, but it may not make that assessment under the guise of determining whether a Faretta motion is timely. We are mindful of the high court’s concern that “[t]rial judges necessarily require a great deal of latitude in scheduling trials” (Morris v. Sloppy (1983) 461 U.S. 1, 11 [ 75 L.Ed.2d 610 , 103 S.Ct. 1610 ]; see maj. opn., ante, at p. 728), but that concern is better addressed by an analysis of whether a Faretta motion is made for dilatory purposes, not whether it is timely.

Second, even if the trial court properly could have assessed the potential for delay in evaluating the timeliness of defendant’s Faretta motion, it is not clear in this case that delay would have resulted had the trial court granted defendant’s motion. The majority does not dispute that defendant did not seek a continuance in conjunction with his Faretta motion. When asked by the court whether one would be necessary, and if so for how long, defendant indicated that he was “not sure.” Although the court expressed concern that defendant might require a continuance to prepare for trial, defendant never raised this concern. Moreover, defense counsel and the prosecution could have—and did—request necessary continuances in the course of preparing for trial; there is no principled reason why a self-represented defendant should be denied that same privilege.

The majority places weight on the fact that defendant’s initial Faretta hearing occurred on October 7, 1991, and pretrial motions could have begun as early as October 21, 1991, apparently suggesting that defendant may not have had sufficient time to prepare his case. Although the majority correctly points out that “defendant did not dispute that he would need time to investigate and prepare” (maj. opn., ante, at p. 728), the majority fails to persuade me that needing such time would have required continuances. In fact, pretrial motions did not commence until October 31, 1991—several weeks after defendant’s hearing and over one month after defendant made his *775 initial request to represent himself. The motions took weeks to complete, and jury selection began in early December and did not conclude until mid-February 1992. In light of the prosecution’s initial estimate that its guilt phase case would take between three and four weeks to complete, defendant could have expected he would have several months to prepare his case without needing to request a single continuance. Indeed, between the time defendant made his first Faretta request on September 27, and the time the prosecution completed its case, over five months had elapsed—which might well have been ample time for defendant to have prepared his case without needing to request a single continuance. Assuming that a trial court may consider the potential for delay in assessing the timeliness of a Faretta motion, it is not clear here that delay would have resulted had the trial court granted defendant’s request to represent himself.

Finally, the readiness of counsel and defendant’s apparent lack of justification for requesting self-representation do not validate the denial of defendant’s motion. The test for self-representation is not whether invocation of the right is reasonable or logical (which it arguably is not in a case such as this where counsel spent weeks reviewing voluminous files), but whether denial of the motion is “inconsistent with the requirements of Faretta and its progeny.” (People v. Butler, supra, 47 Cal.4th at p. 828 .) “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. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of ‘that respect for the individual which is the lifeblood of the law.’ Illinois v. Allen [(1970)] 397 U.S. 337, 350-351 [ 25 L.Ed.2d 353 , 90 S.Ct. 1057 ] (Brennan, J., concurring).” (Faretta, supra, 422 U.S. at p. 834 .) Regardless of counsel’s readiness and defendant’s poor or excellent reasons for wishing to invoke his right to provide his own representation, so long as the right is invoked voluntarily, intelligently, knowingly, unequivocally, in a timely fashion, and without the purpose of causing delay, a trial court lacks discretion to deny it. (Id. at p. 836.)

I see no reason to stray from our long-standing rule 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 the commencement of trial. Accordingly, when 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 how unwise such a choice might appear to be. Furthermore, the defendant’s ‘technical legal *776 knowledge’ is irrelevant to the court’s assessment of the defendant’s knowing exercise of the right to defend himself.” ( Windham, supra, 19 Cal.3d at pp. 127-128, fn. omitted.) Defendant’s motions here were timely under any formulation; accordingly, I believe that the trial court erred by failing to grant defendant’s motions for self-representation, mandating reversal.

Appellant’s petition for a rehearing was denied October 27, 2010. Corrigan, L, did not participate therein.