Cruz

In counts I through III, defendant James Hernandez Cruz was charged by information with separate violations of Penal Code [1] section 245, subdivision (a) (assault with a deadly weapon). Each of the above counts included an allegation that defendant used a firearm within the meaning of section 12022.5 in the commission of the assaults. In count IV of the information, defendant was charged with a violation of section 12021 (possession of a concealable firearm by a former felon). Count IV was based upon an alleged 1968 conviction of robbery. The information was later amended to include an additional prior conviction for robbery, which allegedly occurred in 1973.

Defendant was arraigned and pleaded not guilty with the assistance of a deputy public defender. Prior to the selection of the jury and trial, under circumstances that will be discussed infra, defendant requested to proceed in propria persona (hereinafter referred to as pro. per.). After questioning defendant concerning his competency and warning him about the dangers involved in self-representation, the trial court granted defendant's request. Prior to trial, defendant denied the alleged prior felony…

In counts I through III, defendant James Hernandez Cruz was charged by information with separate violations of Penal Code 1 section 245, subdivision (a) (assault with a deadly weapon). Each of the above counts included an allegation that defendant used a firearm within the meaning of section 12022.5 in the commission of the assaults. In count IV of the information, defendant was charged with a violation of section 12021 (possession of a concealable firearm by a former felon). Count IV was based upon an alleged 1968 conviction of robbery. The information was later amended to include an additional prior conviction for robbery, which allegedly occurred in 1973.

Defendant was arraigned and pleaded not guilty with the assistance of a deputy public defender. Prior to the selection of the jury and trial, under circumstances that will be discussed infra, defendant requested to proceed in propria persona (hereinafter referred to as pro. per.). After questioning defendant concerning his competency and warning him about the dangers involved in self-representation, the trial court granted defendant’s request. Prior to trial, defendant denied the alleged prior felony…

I reluctantly concur. While I do not agree with all the alleged deficiencies in the trial court procedures relating to the appointment and relief of counsel and the ultimate decision to permit defendant to represent himself, it does seem to me that the trial court erred somewhere along the line. If I had to put my finger on the turning point, it came on October 22, 1976, when defendant announced, “I cannot and do not accept Public Defender as counsel. . . .” When the court failed to initiate a Marsden type of inquiry at that point, the game was pretty well lost.

I purposely refer to, the proceedings as a “game” because I am riot blind to what is going on: defendants are manipulating the system to their advantage, basing various ploys and gambits on real or imagined contradictions in applicable Supreme Court opinions. The Stephen Potter who can write a manual to counter all these moves has not yet appeared on the scene.

Finally, even if CALJIC No. 4.31 is not fatally defective, it is confusing and contradictory and should not be given to the jury on a retrial of this case.

Ashby, J., concurred.