Moore

concurring.

I am pleased to concur in Judge O’Scann-lain’s concise and precise opinion.

I write only to explain that while courts of appeal have adopted a timely requirement to a Faretta motion, the Supreme Court did not make the constitutional right of self representation subject to any conditions except knowledge and intelligence.

The Court did not require that the right be exercised before trial. During the course of a trial, counsel may become incapable for many reasons — injury, disbarment, misconduct. For any number of reasons a defendant in that instance may not want a mistrial — he perceives that the trial has proceeded in his favor and doesn’t want the prosecution to start all over again with rehabilitated witnesses. He may want to represent himself during the balance of the trial. Faretta grants him that right.

Opinion by Judge O’SCANNLAIN; Concurrence by Judge FERGUSON.

We must decide whether a writ of habeas corpus should issue when a state court denies a murder defendant’s request to proceed pro se weeks before trial begins.

I

Charles Edward Moore, Jr. was charged with the double murder of Robert and Hattie Crumb. On July 22, 1983, the California Superior Court, where Moore’s ease was to be tried, appointed an attorney to represent Moore. The case was set for trial on March 5, 1984. On that date, the prosecutor and defense counsel appeared before the Master Calendar Court and asked for a continuance, which the court granted until March 9, 1984. Moore was not present in the courtroom. On March 9, the case was continued to March 16, 1984. Again, Moore was not present.

In a letter to the court dated March 10, 1984, Moore explained that, contrary to his requests, he had not been brought into the courtroom on the two previous trial dates, that he had doubts about his court-appointed lawyer, and that he wanted the court to “appoint me co eounsil [sic] with another lawyer or allow me to go pro per, which is my constitutional right of ‘self representation’ under the Sixth Amendment.” When…