Opinion

Statement of the Case

Defendant was charged in a four-count information as follows: count 1, a violation of Penal Code section 211, robbery; count 2, a violation of section 646.9, stalking; count 3, a violation of section 422, making a terrorist threat; and count 4, a violation of section 245, assault with a deadly weapon. It was further alleged that counts 1 and 4 were serious felonies within the meaning of section 1192.7 and that defendant had suffered a prior felony conviction within the meaning of section 667.5, subdivision (b).

Prior to trial, defendant had three Marsden hearings (People v. Marsden (1970) 2 Cal.3d 118 [ 84 Cal.Rptr. 156 , 456 P.2d 44 ]), all of which were denied. At the end of the second hearing defendant requested to represent himself, which request was denied.

After a jury trial, defendant was convicted only of count 2, section 646.9. Defendant was acquitted of all the remaining counts. Defendant admitted his prior conviction. Defendant was sentenced to the upper term of three years on count 2. He received an additional year for the section 667.5, subdivision (b) prior, consecutive to his three-year sentence. He also received a $200 fine pursuant to section 1202.4 and a stayed fine of $200 pursuant, to section 1202.45.

Statement Of Facts

Viewed in accordance with the usual rule of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11 [ 82 Cal.Rptr.2d 413 , 971 P.2d 618 ]) the facts established that defendant and Jennifer Medina had been dating for seven months, when Ms. Medina grew tired of arguing with defendant and ended the relationship. Defendant then called Ms. Medina at her home and asked her to reconsider. Ms. Medina eventually suggested to defendant that he “give it time” and they could still be friends.

On August 10, 1999, defendant called Ms. Medina at her home, indicating he wanted to continue the relationship. Ms. Medina cut the conversation off, indicating to defendant she had to go to work. Defendant then began calling her at work, approximately issue 10 times, threatening to hurt her, because she had hurt him emotionally. Defendant stated that whatever he did, he would end up in jail for it.

A witness testified that after receiving the calls, Ms. Medina was crying, shaking and very upset. Ms. Medina did not want defendant coming to her workplace so she went to his house on her lunch break. She became frightened and asked a neighbor to help her. Defendant called Ms. Medina names, and hit her car and broke off her rearview mirror. Defendant had to be restrained by neighbors.

Ms. Medina drove away from defendant’s residence. She then encountered defendant who was in his car. Defendant eventually positioned his car within a foot of Ms. Medina’s car, blocking her and causing her to come to a stop. Defendant took her car keys and drove off. Ms. Medina was given a ride to the Chino Police Department by a passerby. Ms. Medina testified she told different versions of what happened to the police because she was frightened. The trial court admitted testimony concerning a prior, similar incident that defendant was involved in.

The defense presented evidence that defendant was not as upset at his house as Ms. Medina had testified he was. The prosecution presented rebuttal evidence that defendant was indeed so angry at his house he needed to be restrained by two people.

Issues on Appeal

Defendant raises several issues on appeal. Because we find defendant’s request to represent himself was improperly denied and that such error is reversible per se, we do not reach any of defendant’s contentions except for the Faretta issue.

I

The Court Improperly Denied Defendant’s Timely Request to Represent Himself

On January 20, 2000, before beginning a Marsden motion, defendant indicated to the judge scheduled to hear the motion that he wished to represent himself. After being orally advised of the dangers of self-representation, defendant was sent back into the lockup to fill out the multipage questionnaire routinely given to defendants in Los Angeles County who wish to represent themselves. (See appen., post.)

When defendant returned to the courtroom he indicated he would be ready to proceed on the date set for trial. He also indicated to the court that he knew what crime he was charged with violating, he understood his right to counsel, his right to a jury trial, his right to use the subpoena power of the court, his right of cross-examination, his right against self-incrimination and his right to present a defense. He also told the court he understood he would not receive special privileges and indicated to the court he understood all the dangers of self-representation and the responsibility to act appropriately in court. The following colloquy then took place:

The form used by the Los Angeles Superior Court is not designed as a test that a defendant seeking self-representation must pass. As stated in People v. Dale (1978) 78 Cal.App.3d 722, 730 [ 144 Cal.Rptr. 338 ]:

The holding in Dale is equally applicable to the facts presented to us. While we appreciate the court’s attempts to make sure defendant fully understood what risks his self-representation would entail and we are sympathetic to trial judges who want to ensure that defendants participate on a truly level playing field, the dictates of Faretta must be followed.

The Los Angeles Superior Court Faretta form must be seen as no more than á means by which the judge and the defendant seeking self-representation may have a meaningful dialogue concerning the dangers and responsibilities of self-representation. It is not, as we have indicated, ante, a test the defendant must pass in order to achieve self-representation. The advisements in the form also serve to warn the defendant of the complexities of the task about to be undertaken. They may not be used to disqualify individuals who do not understand each nuance of the complex subject matter presented.

In the instant matter the court found that defendant was mentally competent and fully informed of his right to counsel. He had demonstrated that he was literate and understood the dangers of self-representation. Nothing more was required of him in order to exercise his right of self-representation.

As was stated by the court in People v. Brownlee (1977) 74 Cal.App.3d 921, 934 [ 141 Cal.Rptr. 685 ]: “The test under Faretta is not whether the defendant is competent to act as his own lawyer but whether he ‘knowingly’ waives his constitutional right to counsel with a realization of probable risk and consequences.”

Respondent cites the case of Godinez v. Moran (1993) 509 U.S. 389, 399-400 [ 113 S.Ct. 2680, 2686-2687 , 125 L.Ed.2d 321 ] to support his contention that defendant did not understand the rights he was giving up. Godinez stands for the proposition that the competency required to waive the right to counsel does not equate to representing oneself in a competent manner.

Respondent argues that because defendant did not understand some matters on the waiver form, his waiver was not a “knowing and voluntary” one. Respondent overlooks the very basis of Faretta itself, wherein the high court stated: “We need make no assessment of how well or poorly Faretta had mastered the intricacies of the hearsay rule and the California code provisions that govern challenges of potential jurors on voir dire. For his technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself.” (Faretta v. California, supra, 422 U.S. at p. 836 [ 95 S.Ct. at p. 2541 ], fn. omitted.)

As our Supreme Court has pointed out in People v. Welch (1999) 20 Cal.4th 701, 733-734 [ 85 Cal.Rptr.2d 203 , 976 P.2d 754 ], “As the United States Supreme Court further clarified in Godinez , however, the trial court may not ascertain a defendant’s competence to waive counsel by evaluating the ability to represent himself or herself. [Citation.] In explaining the difference between the competence and waiver requirements, the high court stated: ‘The focus of a competency inquiry is the defendant’s mental capacity; the question is whether he has the ability to understand the proceedings. [Citation.] The purpose of the “knowing and voluntary” inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced. [Citations.] Godinez ‘explicitly forbids any attempt to measure a defendant’s competency to waive the right to counsel by evaluating his ability to represent himself.’ [Citation.]” (Fn. omitted.)

Here, defendant clearly established he knew and understood the significance and consequences of his decision and without coercion he wanted to waive his right to counsel. He fully understood and appreciated there were deficiencies in his understanding of the law pertaining to his case, but wanted to represent himself. It was error to deny him that right.

An erroneous denial of a timely Faretta motion is reversible error. (People v. Carlisle (2001) 86 Cal.App.4th 1382, 1390 [ 103 Cal.Rptr.2d 919 ] and cases cited therein.)

The Attorney General argues that defendant acquiesced in his representation by the public defender’s office, a proposition for which he cites to us the case of People v. Rudd (1998) 63 Cal.App.4th 620, 631 [ 73 Cal.Rptr.2d 807 ]. Rudd involved a defendant who was allowed to represent himself with the understanding that if he were not ready for trial when the case was set, his counsel would continue to represent him. The defendant was not ready to proceed on the day of trial and the court voided his self-representation, without objection from the defendant.

In the instant matter defendant never acquiesced to representation by counsel, he was forced into it by the court. We also reject any suggestion by the Attorney General that defendant’s failure to understand every matter set forth in the Faretta waiver form indicates that his waiver of counsel was not knowing or intelligent.

Disposition

Due to the Faretta error, the judgment is reversed and the matter is remanded back to the court below for a new trial. If the defendant again wishes to represent himself, the request shall be considered in light of this opinion.

Klein, P. J., and Croskey, J., concurred.

Appendix

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Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. All references herein shall be to the Penal Code unless otherwise noted. In light of our resolution of defendant’s claim of error as to the Faretta issue (Faretta v. California (1975) 422 U.S. 806 [ 95 S.Ct. 2525 , 45 L.Ed.2d 562 ]), we shall set forth the facts in cursory fashion.