Fabricant

*709 Opinion

Following a preliminary hearing, defendant was charged in a four-count information with violations of Penal Code section 12021 (possession of a firearm by,an ex-convict), section 236 (false imprisonment), section 242 (misdemeanor batteiy), and section 417 (brandishing a firearm). After a motion under Penal Code section 995, all charges except the section 12021 count were dismissed.

Defendant then made a motion purportedly under the authority of Evidence Code section 402, in which he asked the court to make a preliminary ruling on the validity of his proposed defense — “threats and menaces” (See CALJIC No. 4.40) — as applied to the charged offense. The court held that the proposed defense was not available against a charge of violation of Penal Code section 12021, but it further ruled that defendant could call witnesses to establish the “defense” solely “for purposes of [the] record on appeal.”

Defendant waived his right to trial by jury and submitted the matter on the transcript of the preliminary hearing with the addition of testimony from defense witnesses. The court found defendant guilty as charged. After a probation and sentencing hearing at which several…

I respectfully dissent. There are cases where the services of a lawyer are crucial to a proper defense, but this case is not one of them. This is no close case. Defendant is an ex-convict charged with possession of a gun. The evidence is clear that he possessed and used the gun. Defendant has had much prior experience with the courts. Based on his record, it is clear that he was very aware of the technicalities of a criminal trial and that he did not need to be informed of “the most significant consequences of going it alone.” As far as discouraging defendant from representing himself, it should be noted that he currently is still representing himself in various petitions and applications. Any error in not specifically warning defendant of the difficulty in representing himself was harmless beyond a reasonable doubt. (People v. Cervantes, 87 Cal.App.3d 281, 293-294 [ 150 Cal.Rptr. 819 ].) Any further recycling of this case will result only in needlessly imposing an additional burden on an overburdened court system.

Respondent’s petition for a hearing by the Supreme Court was denied May 30, 1979. Clark, J., was of the opinion that the petition should be granted.

Following a preliminary hearing, defendant was charged in a four-count information with violations of Penal Code section 12021 (possession of a firearm by an ex-convict), section 236 (false imprisonment), section 242 (misdemeanor battery), and section 417 (brandishing a firearm). After a motion under Penal Code section 995, all charges except the section 12021 count were dismissed.

Defendant then made a motion purportedly under the authority of Evidence Code section 402, in which he asked the court to make a preliminary ruling on the validity of his proposed defense — "threats and menaces" (See CALJIC No. 4.40) — as applied to the charged offense. The court held that the proposed defense was not available against a charge of violation of Penal Code section 12021, but it further ruled that defendant could call witnesses to establish the "defense" solely "for purposes of [the] record on appeal."

Defendant waived his right to trial by jury and submitted the matter on the transcript of the preliminary hearing with the addition of testimony from defense witnesses. The court found defendant guilty as charged. After a probation and sentencing hearing at which…