Powell

Grant Richard Powell (appellant) was arrested April 20, 1969, on charges of assault with a deadly weapon (Pen. Code, § 245) [1] and kidnapping (§ 207). In June 1969 he was found incompetent to stand trial and committed to Atascadero State Hospital; subsequently, when he became competent in March 1973 he was tried for the offenses and found not guilty by reason of insanity. With his commitment to Atascadero set to expire on April 21, 1984, the district attorney petitioned in October 1983 to have it extended an additional two years pursuant to section 1026.5. Following a three-day jury trial in which appellant represented himself, he was found to present a substantial danger of physical harm to others and, therefore, his confinement in state hospital was extended two years.

The principal argument advanced on appeal is that appellant should never have been allowed to represent himself in the proceedings below because he lacked the capacity to knowingly and intelligently waive his right to counsel. ( Faretta v. California (1975) 422 U.S. 806 [ 45 L.Ed.2d 562 , 95 S.Ct. 2525 ].)

Appellant appeared before the superior court on October 21, 1983, to set a trial…

Grant Richard Powell (appellant) was arrested April 20, 1969, on charges of assault with a deadly weapon (Pen. Code, § 245) 1 and kidnapping (§ 207). In June 1969 he was found incompetent to stand trial and committed to Atascadero State Hospital; subsequently, when he became competent in March 1973 he was tried for the offenses and found not guilty by reason of insanity. With his commitment to Atascadero set to expire on April 21, 1984, the district attorney petitioned in October 1983 to have it extended an additional two years pursuant to section 1026.5. Following a three-day jury trial in which appellant represented himself, he *473 was found to present a substantial danger of physical harm to others and, therefore, his confinement in state hospital was extended two years.

The principal argument advanced on appeal is that appellant should never have been allowed to represent himself in the proceedings below because he lacked the capacity to knowingly and intelligently waive his right to counsel. (Faretta v. California (1975) 422 U.S. 806 [ 45 L.Ed.2d 562 , 95 S.Ct. 2525 ].)

Appellant appeared before the superior court on October 21, 1983, to set a trial date pursuant…

I concur in the judgment only. I write separately principally because I consider that the majority’s analysis adds an additional and unnecessary layer of complexity to the already difficult task of trying Penal Code section 1026.5 1 cases.

The primary issue presented in this case, also the primary issue briefed, is whether the trial court erred in allowing defendant to proceed to represent himself without making some inquiry into whether he was mentally competent to waive his right to counsel. Unlike my majority colleagues I answer that question affirmatively: the trial court erred.

The underlying rationale of the majority opinion is that the trial court had no obligation to reexamine in a genuine way whether at the time of trial defendant was mentally competent to waive his right to counsel. My colleagues’ notion apparently is that Faretta 2 status once achieved is like the plague—you just must let it run its course. After all, as the trial court here explained, there had already been a Faretta hearing before another judge.

*484 Notwithstanding the majority opinion’s implications to the contrary, the law of this state as spelled out repeatedly in People v. Teron (1979) 23…