Gates v. Super.
Filed 2/27/13 Gates v. Super. Ct. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
LEON STEVEN GATES,
Petitioner,
v.
THE SUPERIOR COURT OF
SAN BERNARDINO COUNTY,
Respondent;
THE PEOPLE,
Real
Party in Interest.
E057916
(Super.Ct.No. FVI1102143)
OPINION
ORIGINAL
PROCEEDINGS; petition for writ of mandate.
John M. Tomberlin, Judge.
Petition granted.
Leon
Steven Gates, in pro. per., for Petitioner.
No
appearance for Respondent.
Michael
A. Ramos, District Attorney, and Stephanie H. Zeitlin, Deputy District
Attorney, for Real Party in Interest.
In this matter we have
reviewed the petition and the opposition filed by real party in interest. We have determined that resolution of the
matter involves the application of settled principles of law, and that issuance
of a peremptory writ in the first instance is therefore appropriate. (Palma
v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
A defendant has a
counsel if he voluntarily and intelligently elects to do so. (Faretta
v. California (1975) 422 U.S. 806, 807.)
Such a request must be unequivocal and must also be made within a
reasonable time before the commencement of trial. (People
v. Bradford (1997) 15 Cal.4th 1229, 1365.)
In ruling on such a request, the court should consider (1) the quality
of counsel’s representation, (2) the defendant’s prior proclivity to
substitute counsel, (3) the reasons for the request, (4) the length and
stage of the proceedings, and (5) the disruption or delay which might reasonably
be expected to follow the granting of such a motion. (People
v. Windham (1977) 19 Cal.3d 121, 128.)
Here, petitioner
clearly invoked his Faretta rights
and asserted his desire to discharge counsel as soon as counsel began
cross-examination at the preliminary hearing.
At this point, the court had virtually no opportunity to evaluate
counsel’s performance, and its immediate rejection of petitioner’s request
prevented him from establishing the reasons why he wished to discharge
counsel. However, the other factors are
on petitioner’s side. The record does
not reflect any other instance of attempting to alter his representation status
and petitioner expressly informed the court that he was ready to proceed
immediately. (Cf. People v. Cummings (1993) 4 Cal.4th 1233, 1321.) The potential for disrupting the orderly
process of an actual trial, with witnesses and jurors arranged, did not exist
in this case. Hence, under
have been considered timely and the court without discretion to deny it. In this respect, Moon v. Superior Court (2005) 134 Cal.App.4th 1521 is directly on
point.
The only thing
that makes this at all a close case is that after a brief recess during which
counsel and petitioner spoke together, petitioner made no further objection but
sat quietly as the hearing proceeded.
However, by that time the trial court had already threatened to have
petitioner removed if he interrupted or attempted to assert his
time, we think it inappropriate to find an implied withdrawal of the request.
Hence, petitioner
was deprived of a substantial right at the preliminary
hearing (Moon v. Superior Court,
and the trial court should have granted his motion to dismiss. Accordingly, we grant the petition.
DISPOSITION
Let a peremptory
writ of mandate issue, directing the Superior
Court of San
Bernardino County
to vacate its order denying petitioner’s motion to dismiss, and to enter a new
order granting the motion.
Petitioner is
DIRECTED to prepare and have the peremptory writ of mandate issued, copies
served, and the original filed with the clerk of this court, together with
proof of service on all parties.
CODRINGTON
Acting P. J.
We concur:
McKINSTER
J.
KING
J.
