Filed 05/29/20
                          CERTIFIED FOR PUBLICATION

         IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FIRST APPELLATE DISTRICT

                                   DIVISION FOUR


 THE PEOPLE,
             Plaintiff and Respondent,
                                              A155459
 v.
 WAKEEN BEST,                                 (City & County of San Francisco
                                              Super. Ct. No. SCN228739)
             Defendant and Appellant.


         Defendant Wakeen Best appeals a judgment entered upon a jury
verdict finding her guilty of animal abuse, burglary, and vandalism.1 She
contends the trial court erred in denying her Faretta motion to represent
herself at trial (Faretta v. California (1975) 422 U.S. 806) and in failing to
instruct the jury on unanimity. We conclude the trial court erred in denying
the Faretta motion, and therefore reverse the judgment. While the record
establishes that defendant was unlikely to be effective in conducting her own
defense, Faretta nevertheless requires she be allowed to represent herself at
trial.
                  FACTUAL AND PROCEDURAL BACKGROUND
      I. The Incident
         A man parked his car on the seventh floor of the Sutter-Stockton
Garage in San Francisco on February 10, 2018, leaving his Chihuahua dog in


      Defendant is a transgender woman. The appellate briefs use feminine
         1

pronouns to refer to defendant, and we do the same.

                                         1
the car. When he returned to the garage, he saw his dog had been brutally
killed. It was a repulsive and sensational crime, the details of which have no
bearing on this appeal. A security guard at the garage viewed video clips
from the incident and recognized defendant.
      Defendant was charged with three felonies: second degree burglary of
a vehicle (Pen. Code, § 459; count 1);2 killing, maiming, or abusing an animal
(§ 597, subd. (a); count 2); and vandalism of the vehicle (§ 594, subd. (b)(1);
count 3). She was also charged with four misdemeanors.
   II. The Faretta Motion
      Defendant was represented pre-trial by an attorney from the public
defender’s office. At a March 14, 2018 hearing, the trial court declared a
doubt about defendant’s competency to stand trial; it appears that defendant
refused to face the judge in order to avoid having her image recorded by
members of the news media. The court suspended proceedings and appointed
experts to evaluate defendant, but then on April 18, 2018 found defendant
mentally competent to stand trial and reinstated criminal proceedings. On
June 1, 2018, the matter was continued for trial and a Faretta hearing.
      The Faretta hearing took place on June 4, 2018 before a different judge.
The court confirmed that defendant had read and initialed each portion of an
“Advisement and Waiver of Right to Counsel” form and inquired into
defendant’s education and awareness of the charges she faced. The court
then asked defendant whether she understood that it would not be able to
answer clarifying questions for her, that she would be held to the same
standard as an attorney, that she had to follow the rules of evidence, that her
case would be prosecuted by an experienced district attorney, that she would
have to conduct the trial on her own, that she would have to make any post-


      2   All undesignated statutory references are to the Penal Code.

                                        2
trial motions on her own, that she would face disadvantages such as limited
access to a telephone and legal research, that she would not be granted a
continuance of the trial unless she showed good cause, and that the court
could terminate her right to self-representation if she engaged in misconduct
or obstructed the progress of the trial. Defendant indicated she understood
each of these things.
      In the course of this colloquy, the court told defendant she could testify
at her trial but could not be forced to do so, and asked if she understood;
defendant initially responded “Okay,” and the court reiterated, “Do you
understand that?” Defendant replied, “That I cannot testify?” The court
said, “My question is, that you have the right to testify at your trial. But you
cannot be forced to testify.” Defendant said “Yes,” and when the court again
asked if she understood, answered, “Yes, I do.”
      Some of defendant’s responses betrayed a lack of understanding of legal
concepts and procedure. For instance, when the court asked defendant if she
understood she had a right to a speedy trial and a jury trial, defendant
expressed confusion about the difference between the two. She seemed to
think a speedy trial was one that took place without a jury. When the court
asked defendant if she understood that she would have to make appropriate
post-trial motions if convicted, and asked whether she knew what post-trial
motions were, defendant first described them as “after the trial, the–kind of
like the closing argument, closing statement” and “the wants and the desires
of the defense to the prosecution and the judge”; asked to clarify, she said she
would need to do more research but thought post-trial motions were “a
summary of what you probably want to be done or would like to see done or—
a summary of the trial of just summing up the—what was—what was
clarified at trial before the courts, before the judge, before the People.”



                                         3
      Defendant was also uncertain about the meaning of specific intent and
general intent crimes. After noting that defendant had indicated on her
Faretta form that she understood which of her charges were general intent
crimes and which were specific intent crimes, the court asked defendant if
she could tell which crime involved which type of intent. Defendant replied
“Some are general; some are specific. [¶] They’re all—they’re all—all of them
are general and specific crimes.” Defendant then acknowledged that she did
not know the difference between general and specific intent crimes but said
she would do so by the time of trial, which could commence within two days.
      Other responses indicated that defendant had examined the Penal
Code and Evidence Code, but that her understanding of the statutory
provisions she identified was limited or confused. For instance, she said she
had been reading “the Evidence Code of the Penal Code,” and that “There is a
lot of Penal Codes in the Evidence Code that pertain to different subjects that
pertain to different cases. [¶] Depending on what you’re looking for, you can
look in the index and you could look up different—different Penal Codes that
can support—support you in trial . . .” When asked for examples, defendant
replied, “I know—I’m familiar with Penal Code 123, materializing. I’m—you
know, I’m familiar with Penal Code 118, perjury. 115. I’m familiar with
Penal Code 131.” The court asked defendant, “What’s 131?” and defendant
answered, “131 is—is when there is evidence—evidence that is submitted
that may be—how do I say it? [¶] Evidence that is—evidence that is—I
wouldn’t say it’s—I wouldn’t say specifically tampered with. I would say it’s
evidence that is—evidence that is fraudulent.” These responses indicate




                                       4
defendant had examined the code sections she cited, although she did not
seem to understand their application.3
      When the court asked defendant about what legal defenses she might
assert, her discussion of the law verged on incoherence. She told the court, “if
you use Penal Code 3, which making retroactive any parts of the [P]enal
[C]ode, you could, pretty much, using Penal Code 4, to construct. You can,
pretty much, construct in order to—in order to receive the proper outcome in
trial. [¶] By reading the different [P]enal [C]ode and looking underneath
each and—each subsection of the [P]enal [C]ode, you can find different things
that can help you in trial. Like, you could ask for certain things of the jury
that if you didn’t know to ask for a 1025, or a 1022, or a 1021, you wouldn’t
know.” The court said, “A 1022 or a 1021 of the Penal Code?” and defendant
replied, “Yes, I’m just saying—I’m just using this as example. You wouldn’t
know—if you didn’t know to make it retroactive, you could possibly be
overlooked, the things that you want done in your case. . . .”4
      On the other hand, defendant gave clear and accurate answers to
simpler questions. For example, the following colloquy occurred: “[The
Court]: Do you understand that you have a right to subpoena witnesses?
[¶] [Defendant]: Yes. [¶] [The Court]: Do you understand what that means?


      3  Sections 115 and 118 define the offenses of offering false documents
for filing and perjury. Section 123 provides that a person accused of perjury
need not know the materiality of the false statement. Section 131 prohibits
willful misrepresentations in connection with investigations of corporate
securities, commodities, or business activities.

      4 Section 3 provides that no part of the Penal Code is retroactive unless
expressly so declared. Section 4 establishes the rule for construction of the
Penal Code’s provisions. Sections 1021 and 1022 consider the effects of a
prior acquittal, and section 1025 considers the effect of a charged prior
conviction.

                                         5
[¶] [Defendant]: Yes. [¶] [The Court]: Tell me. [¶] [Defendant]: To call
witnesses to the stand, . . . to have witnesses come be present in the
courtroom [¶] . . . . [¶] on my behalf. [¶] [The Court]: And do you understand
that you have the right to confront and cross-examine witnesses?
[¶] [Defendant]: Yes, I do. [¶] [The Court]: And do you know what that
means? [¶] [Defendant]: That means to ask questions. [¶] [The Court]: And
see witnesses testify in open court. [¶] [Defendant]: Yes.”
      Defendant told the court she had acted in propria persona at a bench
trial in San Mateo County between 2007 and 2012 and that she had won the
case. The court told defendant it did not find a reference in defendant’s “RAP
sheet” to a trial or acquittal between 2007 and 2012. Defendant said,
“Excuse me, your Honor. I would appreciate not being mistreated here.
There is—it is in there. And I know my rights under the universal
declaration of human rights in order to be represented.” Defendant said she
wanted to “be my own voice and no one else be my voice for me.”
      Before announcing its ruling, the trial court noted that a doubt had
recently been declared as to defendant’s competence and that another judge
had determined defendant was competent to proceed to trial. The court went
on: “And I’m not making a determination today whether or not you are
competent to proceed to trial. The determination I am making is whether it
is clear to me that you fully understand and appreciate the expectations that
will be placed on you—” Defendant interjected, “I fully understand” before
the court finished its sentence, “—if you represent yourself.” The court told
defendant that one of the expectations was that she not interrupt the court,
and defendant apologized. The court went on, “That you fully appreciate and
understand the consequences that might occur were you to represent
yourself. And I will tell you from our very limited conversation, and my



                                       6
review of your RAP, as well as your understanding of the [E]vidence [C]ode
being contained inside the [P]enal [C]ode—” Defendant interjected, “It is not
inside the [P]enal [C]ode. They’re two separate books, your Honor. Two
separate books.” The court continued, “And that the post-trial motions is
similar to closing statements or a summary of the trial. [¶] I only asked a
couple specific things as related to a trial. Or that even not knowing the
difference between a speedy trial and a jury trial. [¶] At this point, I am
going to deny your request. [¶] And [defense counsel] will remain your
counsel.
   III.    Verdict and Sentence
      Defendant pled no contest to the four misdemeanors, and, after a jury
trial, she was convicted of the three felonies with which she was charged.
The trial court sentenced defendant to the upper term of three years for
animal abuse (count 2); with a consecutive eight months of mandatory
supervision for burglary (count 1); a consecutive eight-month sentence for
vandalism (count 3), stayed pursuant to section 654; and six-month terms for
the four misdemeanor counts, to be served concurrently with the felony
sentence.
                                DISCUSSION
      Defendant contends the trial court’s denial of her Faretta motion was
reversible error. “Faretta holds that the Sixth Amendment grants an accused
personally the right to present a defense and thus to represent [herself] upon
a timely and unequivocal request. [Citation.] The right to self-
representation . . . may be asserted by any defendant competent to stand
trial—one’s technical legal knowledge, as such, being irrelevant to the
question whether [she] knowingly and voluntarily exercises the right.”
(People v. Dunkle (2005) 36 Cal.4th 861, 908, overruled on another point in



                                       7
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see also People v.
Poplawski (1994) 25 Cal.App.4th 881, 891 [defendant’s lack of familiarity
with legal language irrelevant to right to self-representation].)
        Erroneous denial of a Faretta motion is reversible per se. (People v.
Carlisle (2001) 86 Cal.App.4th 1382, 1390 (Carlisle).) We review de novo, and
after a review of the entire record, the question of whether the defendant’s
invocation of the right to self-representation and waiver of the right to
counsel was knowing and voluntary. (People v. Marshall (1997) 15 Cal.4th 1,
23–24; People v. Mickel (2016) 2 Cal.5th 181, 211–212.) However, in certain
circumstances, the denial of a Faretta motion is within the discretion of the
trial court and reviewed for abuse of discretion, as when a defendant is so
disruptive or disrespectful as to preclude the exercise of self-representation
(People v. Welch (1999) 20 Cal.4th 701, 735 (Welch)), or when a request for
self-representation is untimely (People v. Lynch (2010) 50 Cal.4th 693, 722,
728 (Lynch)).
   I.   Knowing and Voluntary Waiver
        When a defendant makes an unequivocal request for self-
representation, the trial court must determine whether the defendant is
competent to waive the right to counsel, that is, whether the defendant is
able to understand the nature and object of the proceedings and the risks and
dangers of self-representation. (People v. Phillips (2006) 135 Cal.App.4th
422, 428; Mickel, supra, 2 Cal.5th at p. 206.) In order to do so, the court must
discuss with the defendant the consequences of self-representation, i.e., that
it is almost always unwise; the defendant will have to follow the same rules
that govern attorneys; the prosecution will be represented by experienced,
professional counsel; the court may terminate the right to self-representation
if the defendant engages in disruptive conduct; the defendant will lose the



                                         8
right to appeal on the grounds of ineffective assistance of counsel; and the
defendant will not receive help or special treatment from the court and does
not have the right to standby co-counsel. (Ibid.) But in determining whether
a defendant is competent to choose self-representation, “ ‘[t]he trial court is
not concerned with the wisdom of defendant’s decision to represent himself,
or with how well he can do so. The sole relevant question is whether the
defendant has the mental capacity to knowingly waive counsel while
realizing the probable risks and consequences of self-representation. . . .’ ”
(People v. Nauton (1994) 29 Cal.App.4th 976, 979 (Nauton). “ ‘[A] criminal
defendant’s ability to represent himself has no bearing upon his competence
to choose self-representation.’ ” (People v. Bradford (1997) 15 Cal.4th 1229,
1364.)
      More recent case law has established that criminal defendants may fall
into a “gray-area” between competence to stand trial and competence to
represent themselves at trial. (See People v. Johnson (2012) 53 Cal.4th 519,
527–528 (Johnson).) Even if a defendant is competent to stand trial, a trial
court may deny self-representation if “the defendant suffers from a severe
mental illness to the point where he or she cannot carry out the basic tasks
needed to present the defense without the help of counsel.” (Id. at p. 530;
accord Mickel, supra, 2 Cal.5th at pp. 206–208, citing Indiana v. Edwards
(2008) 554 U.S. 164, 178.) The “critical question is not whether a self-
represented defendant meets the standards of an attorney, or even whether a
defendant is capable of conducting an effective defense. Instead, [our high
court has] accepted that the cost of recognizing a criminal defendant’s right to
self-representation may result ‘ “in detriment to the defendant, if not outright
unfairness.” ’ [Citations.] But that is a cost we allow defendants the choice of
paying if they can do so knowingly and voluntarily.” (Mickel, at p. 206.)



                                        9
      The trial court here did not find, and the Attorney General does not
contend, that defendant suffered from severe mental illness rendering her
incapable of carrying out the basic tasks of presenting a defense—that is,
that she was not mentally competent to represent herself. Although federal
law limits the trial court’s discretion to deny self-representation on this basis,
we have upheld exercise of that discretion when a trial court makes findings
that are supported by expert opinion and in-court observation of a
defendant’s conduct. (See, e.g., People v. Gardner (2014) 231 Cal.App.4th
945, 960.) “To minimize the risk of improperly denying self-representation to
a competent defendant, ‘trial courts should be cautious about making an
incompetence finding without benefit of an expert evaluation, though the
judge’s own observations of the defendant’s in-court behavior will also
provide key support for an incompetence finding and should be expressly
placed on the record.’ ” (Johnson, supra, 53 Cal.4th at pp. 530–531.) Here,
although the trial judge was understandably troubled by defendant’s
responses to her questions, she made no such incompetence finding, nor
would the confidential psychologist evaluations that were before the trial
court have supported such a finding.
      Rather than attack defendant’s competence to represent herself, the
Attorney General argues that the trial court properly found defendant did not
make a knowing and intelligent waiver of her right to counsel. The Attorney
General relies on the following: Defendant was inconsistent about whether
she understood—and then displayed her ignorance of—certain concepts, such
as a speedy trial; she initially misunderstood a compound question the court
asked about her right not to testify at trial; she said she understood how
certain statutes would support her case but then “rambled” about irrelevant
Penal Code provisions and made statements to the effect that the Penal Code



                                       10
was “in the Evidence Code”; she could not explain the nature of post-trial
motions; and she was confused about general intent and specific intent
crimes. The Attorney General argues that, taken together, these statements
show defendant did not fully understand the dangers and disadvantages of
self-representation, and that this was the reason the trial court denied
defendant’s motion.
      But these facts reveal little more than that defendant lacked knowledge
of criminal law and courtroom procedure, which is not a basis to deny the
right to self-representation. This principle was explained in Poplawski,
supra, 25 Cal.App.4th 881. The court there noted that a defendant choosing
self-representation must do so “ ‘ “competently and intelligently,” ’ ” but
technical legal knowledge is irrelevant to whether he or she is competent to
waive the right to counsel. (Poplawski, at p. 894.) The court concluded there
was insufficient evidence to support the revocation of the defendant’s pro se
status on the ground that he lacked the necessary English language
communicative skills. (Ibid.) It went on to reject the trial court’s reliance on
the defendant’s inability to understand the proceedings exactly, stating,
“were we to construe Faretta and its progeny as requiring the denial of pro se
status merely on the basis of an accused’s ignorance of the relevant rules of
procedure, substantive law, and courtroom protocol, few requests for self-
representation would ever be granted.” (Id. at pp. 894–895.)
      People v. Silfa (2001) 88 Cal.App.4th 1311 (Silfa), which held the trial
court erred in denying a Faretta motion, is on point. During the hearing on
the motion, the trial court in Silfa asked the defendant if he understood the
elements of the crimes he was charged with, and the defendant indicated he
did not understand what the court was asking. (Id. at p. 1315.) The court
asked if he understood whether the charges were general intent or specific



                                       11
intent crimes, and the defendant said he did not. (Ibid.) The court pointed
out that, without knowing these things, the defendant might not be able to
make proper evidentiary objections or assist in the preparation of jury
instructions, and the defendant said he would take that chance. (Id. at
pp. 1315–1316.) In discussing the possible sentence, defendant said that he
did not understand what “654 issue” meant and that he would like to court to
help explain that. (Id. at p. 1316.) He said he “might know what to ask the
jurors” during voir dire, implicitly conceding that he might not. (Id. at
pp. 1316–1317.)
      After further discussion, the trial court ruled, “ ‘I am concerned enough
with regard to your answers as to the elements of the crime, the knowledge
that you have as to the possible defenses available to you, the knowledge that
you have as to the possible sentence you might receive, and it is obvious to
me that you are incompetent to represent yourself as the record of these
proceedings clearly demonstrates. [¶] ‘Although I’m satisfied that you’re
mentally competent and that you are fully informed of the right to counsel, I
find that you do not understand what I’ve told you and what the
consequences are of your contemplated act, and I specifically find that Mr.
Silfa has not intelligently and voluntarily waived his right to be represented
by counsel.’ ” (Silfa, supra, 88 Cal.App.4th at p. 1321.)
      The appellate court concluded this ruling was error: “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.” (Silfa,
supra, 88 Cal.App.4th at p. 1322.) The court went on, “ ‘As the United States
Supreme Court further clarified in Godinez [v. Moran (1993) 509 U.S. 389],



                                       12
. . . 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.” (Silfa, at p. 1323.) The
court concluded, “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.” (Ibid.)
      The same is true in this case. Defendant had been found competent to
stand trial, and the trial court did not revisit that determination. There is no
indication she suffered from severe mental illness to the point she was not
competent to conduct trial proceedings on her own (see Mickel, supra,
2 Cal.5th at p. 208), and the trial court made no such finding. Her invocation
of the right to self-representation was unambiguous, and the record indicates
it was knowing and voluntary. She filled out the Faretta waiver form and, at
the hearing on the Faretta motion, said she understood the rights she was
giving up and the risks and disadvantages of representing herself. Although
many of her answers to the court were rambling and betrayed a lack of
understanding of the law, they do not indicate she was illiterate; indeed, her
responses showed she had spent time reviewing the Penal Code and the



                                       13
Evidence Code. We recognize that she did not understand such concepts as
specific intent and general intent, but her ignorance of legal procedure and
language is not a basis to deny her the right to self-representation.
      As Silfa explained in discussing an analogous Faretta form, the form “is
not . . . a test the defendant must pass in order to achieve self-
representation.” (Silfa, supra, 88 Cal.App.4th at p. 1322.) Its advisements
“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.” (Ibid.)
The warning served its purpose here. In responding to the court’s questions,
the defendant was forced to acknowledge that her written answers overstated
her knowledge of the law, specifically that she would have to do more
research to understand post-trial motions or the difference between general
and specific intent crimes. As in Silfa, the colloquy exposed that the
defendant “appreciated there were deficiencies in [her] understanding of the
law,” but she nonetheless remained steadfast in wanting to represent herself.
(Id. at p. 1323.)
      Silfa has already rejected the argument the Attorney General makes in
this case. In both cases, “Respondent argues that because defendant did not
understand some matters on the waiver form, [her] waiver was not a
‘knowing and voluntary’ one,” and in both cases this argument “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.’ ” (Silfa, supra, 88 Cal.App.4th at pp. 1322–1323, quoting Faretta,



                                        14
supra, 422 U.S. at p. 836, fn. omitted.) In this case, as in Silfa and Faretta,
the defendant’s decision to self-represent was almost certainly unwise. But
even if self-representation results in an unfair trial, “defendant’s choice ‘must
be honored.’ ” (People v. Taylor (2009) 47 Cal.4th 850, 866 (Taylor).) It was
accordingly error for the trial court to deny defendant the right to represent
herself on the grounds she had not knowingly and voluntarily made that
choice.5
   II. Alternate Discretionary Grounds
      Even if a trial court denies a Faretta motion for an improper reason, we
uphold the ruling “if the record as a whole establishes defendant’s request
was nonetheless properly denied on other grounds.” (People v. Dent (2003) 30
Cal.4th 213, 218.) Relying on this principle, the Attorney General argues the
Faretta motion was properly denied because it was untimely and defendant
was disruptive and disobedient.
      A trial court has discretion to deny a Faretta motion when a defendant
is “so disruptive, obstreperous, disobedient, disrespectful or obstructionist in
his or her actions or words as to preclude the exercise of the right to self-

      5  As the dissent points out, the defendant in this case was more of a
blusterer than the defendant in Silfa, and represented as true something she
could not substantiate with independent evidence (e.g., her RAP sheet). This
behavior will serve her poorly if it continues at trial, but it does not vitiate
her knowing and voluntary choice to self-represent. Nor are errors in
following the directions on the Faretta form disqualifying, just as they were
not in People v. Blair (2005) 36 Cal.4th 686, 703–704 [instructed to initial
waiver form, defendant marks it with “x”’s instead], overruled on other
grounds in People v. Black (2014) 58 Cal.4th 912, 919–920, since the form is
not a test a defendant must pass to self-represent. (Silfa, supra, 88
Cal.App.4th at p. 1322.) To hold otherwise is to risk reintroducing, through
the enquiry into whether waiver was knowing and voluntary, a requirement
for “ ‘cognitive and communicative skills’ ” that our Supreme Court has
previously rejected in the context of assessing a defendant’s competence to
choose self-representation. (See Taylor, supra, 47 Cal.4th at pp. 873–876.)

                                        15
representation.” (Welch, supra, 20 Cal.4th at p. 735.) But the trial court did
not do that here. Although the court admonished defendant not to interrupt
the court, it did not rely on any interruption or misbehavior in denying the
Faretta motion. Instead, the court stated that it was determining only
whether defendant fully understood the expectations she would face at trial,
and it relied on her lack of legal knowledge—not any possible delay or
disruption—in answering this question in the negative.
      We might hesitate to find that the evidence here supported a denial of
the Faretta motion on grounds of disruptiveness. True, defendant had hidden
behind counsel and refused to face another judge on one occasion, leading the
court to declare a doubt as to her competence to stand trial, but the presence
of television cameras in the courtroom may have explained defendant’s
conduct on that occasion. Also true, the defendant interrupted the court
during the Faretta hearing, and some of her responses to questions were
difficult to follow. But her conduct at the hearing drew a single reprimand
and was not, as best we can tell from the transcript, “so disruptive . . . as to
preclude” self-representation. (Welch, supra, 20 Cal.4th at p. 735.)
      The question before us is not, however, whether denying the motion on
grounds of disruptiveness would have been an abuse of discretion. The trial
court seems not to have found defendant’s conduct so disruptive as to deny
self-representation on that basis, so the question before us is whether this
omission was an abuse of discretion. Dent explains that we uphold a ruling
made on an improper ground if the record shows the “request was
nonetheless properly denied on other grounds,” but it does not address
requests that merely could have been denied on discretionary grounds.
(Dent, supra, 30 Cal.4th at p. 218, italics added.) This case is therefore
different from Welch, where the trial court improperly relied on defendant’s



                                        16
limited ability to represent himself, but also properly relied on defendant’s
disruptiveness to deny the Faretta motion. (Welch, supra, 20 Cal.4th at pp.
734–736.) Dent neither requires nor allows us to imply discretionary findings
that the trial court did not in fact make.6
      As California courts have long recognized, “ ‘ “If a ruling which might
have been made as a matter of discretion is based entirely upon other
grounds, the appellate court will not consider whether the ruling would
constitute a proper exercise of the discretionary power.” ’ ” (Bergin v.
Portman (1983) 141 Cal.App.3d 23, 27–28, quoting People v. Union Machine
Co. (1955) 133 Cal.App.2d 167, 171.) Other state courts have applied this
principle in reviewing Faretta motions. (See Oviuk v. State (Alas. App. 2008)
180 P.3d 388, 391 [where trial court denied self-representation on erroneous
basis, it is improper for appellate court to affirm on alternate ground of
untimeliness not found by trial court]; State v. Braswell (Conn. 2015) 318
Conn. 815, 834–835 [although “a defendant may forfeit his right to self-
representation by exhibiting disruptive behavior . . . the defendant’s behavior
was not the reason for the court’s denial in the present case,” so Faretta
ruling could not be affirmed on that basis].) Because the trial court did not
deny defendant’s Faretta motion on grounds of disruptiveness, we cannot
here uphold the trial court’s ruling on this alternate ground.



      6  This case is also different from People v. Boyce (2014) 59 Cal.4th 672,
on which the dissent relies. In Boyce, the Supreme Court affirmed denial of a
Faretta motion because the defendant never unequivocally requested to
represent himself, which was not a reason the trial court had given. (Id. at
pp. 703, 705.) But because appellate courts review de novo whether a request
to self-represent is unequivocal (Dent, supra, 30 Cal.4th at p. 218), we can
affirm on this ground even when the trial court has not addressed it. Here,
by contrast, the alternate grounds urged upon us are not issues of law, but
matters committed to the sound discretion of the trial court.

                                       17
      We similarly reject the Attorney General’s contention that we should
uphold the ruling because defendant’s request was untimely. A self-
representation motion may be denied as untimely if it is not made “ ‘a
reasonable time prior to the commencement of trial.’ ” (Lynch, supra, 50
Cal.4th at p. 722.) An untimely motion is addressed to the sound discretion
of the trial court. (Ibid.) This rule is intended to prevent a defendant from
misusing a Faretta motion to delay trial or obstruct the orderly
administration of justice. (People v. Burton (1989) 48 Cal.3d 843, 852; see
also Lynch, at pp. 727–728 [no abuse of discretion in denying motion as
untimely where defendant waited nearly four years to seek self-
representation and would need substantial delay of trial to prepare defense];
People v. Ruiz (1983) 142 Cal.App.3d 780, 790–791 [although defendant did
not bring motion a few days before trial for purpose of delay, continuance
would be necessary for defendant to prepare defense].) In exercising its
discretion, the court considers whether defense counsel needs further time for
preparation, “the ‘quality of counsel’s representation of the defendant, the
defendant’s prior proclivity to substitute counsel, the reasons for the request,
the length and stage of the proceedings, and the disruption or delay which
might reasonably be expected to follow the granting of such a motion.’ ”
(Burton, at p. 853, quoting People v. Windham (1977) 19 Cal.3d 121, 128.)
There is no hard and fast rule for how long before trial is “reasonable.”
(People v. Clark (1992) 3 Cal.4th 41, 99.) Timeliness of a Faretta motion “is
based not on a fixed and arbitrary point in time, but upon consideration of
the totality of the circumstances that exist in the case at the time the self-
representation motion is made.” (Lynch, supra, 50 Cal.4th at p. 724.)
      Defendant made her motion on June 1, 2018, and the hearing took
place three days later. The trial court did not find the motion untimely or



                                       18
find it would cause delay, and there is no basis to conclude it was brought for
purposes of, or would have caused, delay. Defense counsel indicated that the
next trial readiness date had been set for June 6, 2018, two days after the
Faretta hearing. When the court told defendant the trial could begin as soon
as June 6, she replied, “Okay.” She did not request a continuance. When the
court asked if she knew the difference between general and specific intent
crimes, she said she would know that by trial; the court confirmed, “By
Wednesday,” and she replied, “Yes.” Because the record contains nothing
indicating self-representation would have delayed the trial, we cannot uphold
the ruling on the alternate grounds that it was untimely. (See People v.
Tyner (1977) 76 Cal.App.3d 352, 355 [where defendant’s “motion for self-
representation was made prior to trial and was not accompanied by any
request for a continuance, its grant would not have obstructed the orderly
administration of justice”]; Moon v. Superior Court (2005) 134 Cal.App.4th
1521, 1530 [defendant “did not want a continuance or even so much as a
recess,” so “[t]here was nothing upon which to base a prediction of
disruption”].)
 III. Conclusion
      An erroneous denial of a timely Faretta motion is reversible per se.
(Carlisle, supra, 86 Cal.App.4th at p. 1390; Dent, supra, 30 Cal.4th 218.)
Applying this rule, we must reverse the judgment and remand the matter for
a new trial. (Silfa, supra, 88 Cal.App.4th at p. 1324.) Because we do so, we
need not consider defendant’s remaining contentions on appeal.
      We emphasize that our decision is based on the record as of the time
the trial court denied defendant’s Faretta motion. Nothing we say here
prevents the trial court on remand from evaluating defendant’s competence




                                      19
to represent herself, and the potential for disruption, based on conditions as
they exist at the time of any new motion for self-representation.
      Finally, although the parties do not raise this issue, we note that the
transcript of the Faretta hearing does not show defendant was advised of the
maximum punishment she faced for the offenses with which she was charged.
(People v. Jackio (2015) 236 Cal.App.4th 445, 454–455.) While failure to
advise on all aspects of potential punishment does not necessarily render a
Faretta waiver invalid, it is the better practice to provide this information
(People v. Bush (2017) 7 Cal.App.5th 457, 473–474) so as to ensure the
defendant understands the risk she faces. We trust that if defendant again
seeks to represent herself, she will be fully informed of the consequences of
her decision, in particular the state prison time she faces.


                                DISPOSITION
      The judgment is reversed. The matter is remanded for a new trial. If
defendant again seeks to represent herself, the request shall be considered in
light of this opinion.




                                       20
                                 _________________________
                                 TUCHER, J.


I CONCUR:


_________________________
STREETER, Acting P. J.




People v. Best (A155459)




                            21
BROWN, J., Dissenting
                                      Introduction
      Because I disagree with the majority’s analysis of the record and
governing authorities, I respectfully dissent.
      The majority casts this case as one in which the trial court improperly
denied Ms. Best the right to represent herself based on the court’s purported
assessment of her “ignorance of legal procedure and language.” (Maj. opn. at
p. 14.) The majority deems this an inappropriate inquiry because “technical
legal knowledge is irrelevant to whether [a defendant] is competent to waive
the right to counsel.” (Maj. opn. at p. 11.) In my view, review of the record
demonstrates that the trial judge was not focused on testing Ms. Best’s
technical legal knowledge, but was instead appropriately concerned with
whether Ms. Best was knowingly and intelligently waiving her right to
counsel, such that she truly understood the “dangers and disadvantages of
self-representation.” (Faretta v. California (1975) 422 U.S. 806, 835.)
Moreover, even if the majority were correct in holding that the trial court
improperly relied on Ms. Best’s miscomprehension of legal concepts and
procedures, the record establishes an independent basis for affirming the
trial court’s denial of the Faretta motion: i.e., Ms. Best’s disruption of
courtroom proceedings by her repeated interruptions and her insistence on
arguing “facts” that did not occur.
                                      Discussion
 I.   Additional Facts
      Because the majority opinion captures much of the colloquy between
the judge and Ms. Best at the hearing on the Faretta motion, there is no need
to repeat it here. I offer only a handful of additional facts that are, in my
opinion, pertinent to our review.



                                         1
      First, comparison of the hearing transcript and the Faretta waiver form
demonstrates that the trial court’s questions were not an attempt to quiz Ms.
Best on her legal knowledge, but were instead an effort to probe whether Ms.
Best truly understood the consequences of her self-representation request.
For example, the court’s initial inquiries regarding Ms. Best’s understanding
of her right to have an attorney free of charge, her right to a speedy trial and
jury trial, and her right to subpoena witnesses track the first three rights set
forth on Ms. Best’s Faretta waiver form. Indeed, the court expressly stated
that its purpose in “go[ing] over all of this paperwork”—i.e., the waiver
form—was to ensure that Ms. Best “underst[ood] what will be happening,”
and that she “underst[ood] what [she was] asking of this Court.”1
      On its face, the Faretta waiver form provides sound reason for the
court’s concern with whether Ms. Best truly understood the rights she was
giving up and the consequences of doing so. For example, notwithstanding
Ms. Best’s placing her initials or checking “yes” in every box on the form—
purportedly indicating her comprehension of each of the stated rights and the
potential dangers and disadvantages of self-representation—the form reveals
a rather fundamental lack of understanding: Her handwritten list of charges
fails to include three of the seven counts she was facing, including the felony
vandalism charge and two misdemeanors. Moreover, Ms. Best signed the
Faretta waiver form’s “Interpreter’s Statement,” representing that she was a
“court interpreter” who translated the form in “English” to herself, thus



      1  The court’s colloquy thus contrasts with Faretta, where the trial court
revoked its prior grant of the defendant’s self-representation request after
challenging him to answer the following questions: “ ‘How many exceptions
are there to the hearsay rule?’ ” “ ‘What are the grounds for challenging a
juror for cause?’ ” and “ ‘What is the code section’ ” governing voir dire.
(Faretta, supra, 422 U.S. at pp. 808, fn.3, 809–810.)

                                        2
demonstrating either that she did not carefully read or that she did not
understand the form.
      In addition, Ms. Best wrote on the Faretta waiver form that she had
previously represented herself in “San Mateo County (2007–2012),” expressly
stating, “I won my case.” Ms. Best then orally reiterated this claim in her
discussions with the court. The trial court questioned this assertion, noting
that no such case appeared in defendant’s RAP sheet, but defendant insisted
that the court was wrong: “It’s in [the RAP sheet] [¶] . . . . [¶] Excuse me,
your Honor. I would appreciate not being mistreated here. There is—it is in
there. And I know my rights under the universal declaration of human rights
in order to be represented.” We have obtained Ms. Best’s RAP sheet from the
trial court, and although it contains dozens of arrests from six California
counties and two other states, the trial court was correct in finding that Ms.
Best had never been arrested, charged, or acquitted in San Mateo County. At
best, defendant was misperceiving her own criminal past in a significant way;
at worst, she was willfully misrepresenting it in an attempt to convince the
court to grant her motion.
      Finally, the transcript of the hearing on defendant’s Faretta motion
reveals the justifiable basis for the court’s frustration with the defendant’s
interruptions. The defendant interrupted the judge at least six times during
the 30-minute hearing, including almost immediately after the court
admonished her for her repeated interruptions:
   [COURT]: The determination I am making is whether it is clear to me
   that you fully understand and appreciate the expectations that will be
   placed on you— [DEFENDANT, interrupting]: I fully understand.
   [COURT]: —if you represent yourself.
   [DEFENDANT]: Yes, I do.



                                        3
   [COURT]: And one of those expectations is that you not interrupt the
   Court.
   [DEFENDANT]: Oh, excuse me. Sorry.
   [COURT]: That you fully appreciate and understand the consequences
   that might occur were you to represent yourself. And I will tell you from
   our very limited conversation, and my review of your RAP [sheet], as well
   as your understanding of the [E]vidence [C]ode being contained inside the
   [P]enal [C]ode—
   [DEFENDANT, interrupting]: It is not inside the [P]enal [C]ode. They’re
   two separate books, your Honor. Two separate books.
   [COURT]: And that post-trial motions is similar to closing statements or a
   summary of the trial.”
II.   Analysis
      Many of Ms. Best’s statements to the court demonstrate that she did
not knowingly and intelligently waive her right to counsel with a full
appreciation of the dangers and disadvantages of self-representation—
notwithstanding her initials on the waiver form indicating her purported
understanding of the specified rights and consequences. (Faretta, supra, 422
U.S. at 835.) In other words, the record did not “establish that ‘[s]he knows
what [s]he is doing and [her] choice is made with eyes open.’ ” (Ibid., quoting
Adams v. United States ex rel. McCann (1942) 317 U.S. 269, 279.) As but one
example, in the section of the waiver form marked “DANGERS AND
DISADVANTAGES TO SELF-REPRESENTATION,” Ms. Best initialed the
box indicating that she understood that she would have to “mak[e]
appropriate motions after trial” without the assistance of attorney, but then
gave the following nonsensical explanation of her purported understanding:
“Post-trial motions is after the trial, the—kind of like the closing argument,



                                       4
closing statement. [¶] . . . . [¶] That’s pretty much, what I’ve gathered. [¶]
. . . . [¶] Or the—the wants—the wants and the desires of the defense to the
prosecution and the judge post-trial motions. That’s all tied in together, I
believe.” When a defendant clearly does not comprehend the basic
expectations of representing herself (despite her written initials to the
contrary), how can the record support a finding that she has knowingly and
intelligently waived the right to counsel, with her “ ‘eyes open’ ” to the
dangers and consequences of self-representation? (Adams, at p. 279; see also
People v. Burgener (2009) 46 Cal.4th 231, 241 [“ ‘the test is whether the
record as a whole demonstrates that the defendant understood the
disadvantages of self-representation, including the risks and complexities of
the particular case’ ”].) In my view, it cannot, and the trial court was not
punishing Ms. Best for her lack of technical legal knowledge, but was instead
appropriately unconvinced that Ms. Best’s waiver was in fact knowing and
intelligent. (See United States v. Kimmel (9th Cir. 1982) 672 F.2d 720, 721
[finding the record failed to show defendant’s knowing and intelligent waiver
of right to counsel; “A waiver of counsel cannot be knowing and intelligent
unless the accused appreciates the possible consequences of mishandling
these core functions and the lawyer’s superior ability to perform them”].)2
Indeed, as the court explained—over and despite Ms. Best’s interruptions—it
was focused on determining “whether it is clear to me that you fully
understand and appreciate the expectations that will be placed on you—[¶]


      2  Ms. Best, perhaps unsurprisingly, had a different view of her
abilities: After insisting that she “underst[ood] very well”—notwithstanding
that her in-court statements “verged on incoherence” (maj. opn. at p. 5) and
demonstrated numerous misunderstandings as to the items she had checked
on the Faretta waiver form—Ms. Best informed the trial judge, “If [court-
appointed counsel were] to represent me, ma’am, it would be no—it would be
no different than I representing myself.”

                                        5
. . . . [¶]—if you represent yourself. [¶] . . . . [¶] That you fully appreciate and
understand the consequences that might occur were you to represent yourself.”
(Italics added.)
      The cases on which the majority primarily relies are not on point. In
People v. Poplawski (1994) 25 Cal.App.4th 881 (Poplawski), after a judge
allowed the defendant to proceed pro se, a second judge revoked the
defendant’s pro se status because he was not fluent in English and was
“ignoran[t] of the meaning of the word ‘motion,’ ” leading the court to
conclude he did not understand the proceedings and was incompetent to
represent himself. (Id. at pp. 887, 891.) The appellate court held that the
revocation violated the Sixth Amendment, stating it was unaware of any
authority that allowed a court to revoke pro se status on the grounds stated.
(Id. at pp. 886, 889.) Discussing the requirements for a valid waiver of the
right to counsel, the Poplawski court also observed that the right of self-
representation cannot be denied to a defendant who understands the
significance of her decision to proceed pro se merely because she lacks legal
expertise and does not know the rules of procedure or courtroom protocol.
(Id. at pp. 894–895.)
      Poplawski is distinguishable because it involved a revocation of pro se
status, which was deemed permissible only for disruptive in-court conduct or
substantial evidence of incompetency (Poplawski, supra, 25 Cal.App.4th at
p. 889); the issue before the court was not whether there was a knowing and
voluntary waiver. Here, the record demonstrates that the judge denied pro se
status because Ms. Best did not actually understand the significance of her
decision to waive counsel, not because she was unable to recite technical
aspects of the rules of procedure or substantive law. “The purpose of the
‘knowing and voluntary’ inquiry . . . is to determine whether the defendant



                                         6
actually does understand the significance and consequences of a particular
decision . . .” (Godinez v. Moran (1993) 509 U.S. 389, 401, fn. 12.) The judge
asked Ms. Best about the Penal and Evidence Codes when assessing whether
she understood that she would be required to follow specialized rules, and the
judge admonished her that, without counsel, she was at a disadvantage
precisely because she did not understand the intricacies of the proceeding.
Indeed, the court’s inquiries were similar to those of the judge in Poplawski
who initially granted the defendant’s request to proceed pro se. (Poplawski,
supra, 25 Cal.App.4th at pp. 885–886 [asking about the defendant’s
knowledge of the Evidence Code, how a trial worked, and the responsibilities
he would undertake].) Again, the court was clear with Ms. Best: “The
determination I am making is whether it is clear to me that you fully
understand and appreciate the expectations that will be placed on you—”
“[t]hat you fully appreciate and understand the consequences that might
occur were you to represent yourself.” (People v. Phillips (2006) 135
Cal.App.4th 422, 429 [“the trial court is obligated to make an inquiry into
defendant’s understanding of the nature and seriousness of the charges
against him and . . . of the law in order for the court to decide whether
defendant understands the risks and disadvantages of representing
himself”].)
      People v. Silfa (2001) 88 Cal.App.4th 1311 (Silfa) is similarly
distinguishable. In that case, the defendant’s answers were all sensible and
responsive, he knew the charges he was facing, he candidly admitted the
legal terms he did not know (such as “elements” and “654 issue[s]”), he made
no errors on the Faretta waiver form, his oral statements did not demonstrate
that he had initialed the form despite a lack of understanding as to what it
stated, and he made no misstatements as to his experience with self-



                                       7
representation. (Silfa, at pp. 1315–1321, Appendix A.) By contrast, Ms. Best
repeatedly gave nonsensical and rambling responses, failed to include on the
waiver form three of the seven charges she was facing, falsely claimed to
understand things she clearly did not, signed the interpreter’s statement
saying that she had translated the form in English to herself, and
misrepresented (or at best misperceived) her own criminal history and
experience with self-representation.
      In reversing the trial court, Silfa relied on the fact that the defendant
“clearly established he knew and understood the significance and
consequences of his decision” and “fully understood and appreciated there
were deficiencies in his understanding of the law pertaining to his case.”
(Silfa, supra, 88 Cal.App.4th at p. 1323.) In my view, Ms. Best presents the
opposite scenario: The record clearly establishes that she did not know and
understand the rights she was giving up and the significance and
consequences of self-representation. For example, rather than “fully
underst[anding] and appreciat[ing] there were deficiencies in [her]
understanding of the law pertaining to [her] case,” she baselessly insisted
that she “did know the answer” to questions such as the difference between
her rights to a speedy trial and a jury trial when her own statements made
clear she did not. Likewise, notwithstanding her confidence in her asserted
grasp of “a lot of Penal Codes in the Evidence Code that pertain to different
subjects that pertain to different cases,” she in fact displayed a fundamental
miscomprehension of the Penal Code sections she professed to understand
might “support [her] in trial,” as exemplified by her incomprehensible (yet
self-assured) pronouncement that “if you use Penal Code 3, which making
retroactive any parts of the [P]enal [C]ode, you could, pretty much, using
Penal Code 4, to construct. You can, pretty much, construct in order to—in



                                       8
order to receive the proper outcome in trial.” (Maj. opn. at p. 5) Thus, unlike
the defendant in Silfa, in no way did Ms. Best recognize and appreciate the
gaps in her comprehension of what self-representation entailed. While she
“remained steadfast in wanting to represent herself,” (maj. opn. at p. 14), her
persistence in that desire does not establish that she “ ‘ “actually . . .
underst[ood] the significance and consequences” of the decision to waive
counsel.’ ” (Burgener, supra, 46 Cal.4th at p. 243, quoting People v. Stewart
(2004) 33 Cal.4th 425, 513.) Indeed, the majority’s “ ‘construct conflates
[defendant]’s determination to proceed pro se, with [her] understanding of the
consequences of doing so.’ ” (See Burgener, at p. 243, quoting United States v.
Crawford (8th Cir. 2007) 487 F.3d 1101, 1106.)
      In asserting that Silfa “is on point,” the majority relegates to a footnote
and, in my view, improperly minimizes one more key difference between Silfa
and this case: At no time did the defendant in Silfa misstate or misrepresent
his criminal history and experience with self-representation when trying to
convince the court to grant his Faretta motion. It is difficult to believe that
Ms. Best was merely mistaken about the events, given her specific claims
that the San Mateo case lasted from 2007 to 2012 and that she won the case.
It is even more difficult to accept the majority’s gloss on Ms. Best’s claim that
she had successfully represented herself for five years in a San Mateo case—
i.e., that she merely “represented as true something she could not
substantiate with independent evidence (e.g., her RAP sheet).” (Maj. opn. at
p. 15, fn. 5.) The majority’s benign view of Ms. Best’s assertion as to her
successful self-representation in San Mateo assumes without any evidentiary
basis that the RAP sheet—which catalogs more than 50 arrests in three
states and six different California counties (although not San Mateo)—is
inexplicably missing a five-year case that ended in an acquittal. That



                                         9
charitable take on Ms. Best’s insistence that she had successfully represented
herself also rests on speculation that she may have been telling the truth but
simply lacked the documentary evidence to corroborate her claim. But the
majority’s credulous view of Ms. Best’s statements is undermined by the fact
that, in her effort to bamboozle the court into believing that she understood
the consequences of her waiver, she had already misrepresented her
understanding of the rights set forth on the Faretta waiver form: After Ms.
Best asked the court whether “[t]here [was] a difference between a speedy
trial and a jury trial” and the court stated that she would be expected to
know the answer to such questions, Ms. Best asserted that, in fact, she “did
know the answer to it,” but then asked yet again what the difference was
between a speedy trial and a jury trial. Ms. Best’s repeated questions as to
whether there was a difference between a speedy trial and a jury trial—
sandwiched around her false insistence that she “did know the answer to
[that question]”—demonstrate both her willingness to overstate her
understanding of her rights and the court’s legitimate concern that her
waiver was not knowing and intelligent, despite the initials and checked
boxes on the form.
      The majority characterizes all of this as mere “bluster[]” and states that
such behavior “does not vitiate her knowing and voluntary choice to self-
represent.” (Maj. opn. at p. 14, fn. 5.) But in so doing, I believe the majority
misses the point. The point is not that Ms. Best was (or should be) punished
for her misstatements by invalidating what was otherwise a knowing and
voluntary choice. Rather, the point is that her willingness to misrepresent
basic facts as to both her criminal history and her understanding of the rights
set forth on the Faretta form supports the trial court’s well-founded concern
that she did not, in fact, knowingly waive her right to counsel with a true



                                       10
understanding and appreciation of the consequences. Suffice it to say that
this case bears no resemblance to Silfa.
      Even if the majority’s reliance on Poplawski and Silfa were well
founded, there is an independent basis on which I would affirm the denial of
the Faretta motion. (People v. Dent (2003) 30 Cal.4th 213, 218 (Dent) [where
trial court denied self-representation request on an improper basis, the ruling
may be affirmed if the record as a whole establishes it was properly denied on
other grounds].) A defendant’s self-representation request may be denied
where he or she engages in serious and obstructionist misconduct. (People v.
Welch (1999) 20 Cal.4th 701, 734–735 [trial court properly denied defendant’s
Faretta motion “based on the disruptive behavior he had exhibited in the
courtroom”].)3 A court may also deny a Faretta motion where the defendant
is unable or unwilling to “abide by rules of procedure and courtroom
protocol.” (McKaskle v. Wiggins (1984) 465 U.S. 168, 173.) After all, the
“right of self-representation is not a license to abuse the dignity of the
courtroom.” (Faretta, supra, 422 U.S. at p. 834, fn. 46.) To be sure, the trial
court did not expressly state that it was basing its denial of the Faretta
motion on defendant’s repeated interruptions and vociferous insistence that
she had previously proceeded pro se, despite the evidence contradicting her
assertion. It is nonetheless apparent from the record that the court was
appropriately considering Ms. Best’s disruptive behavior and obstructionist

      3 Notably, Ms. Best engaged in some of the same behavior as the
defendant in Welch: Both defendants turned their backs on the court and
“interrupted the trial court several times to argue what the court had
declared to be a nonmeritorious point.” (Welch, supra, 20 Cal.4th at p. 735.)
In addition, like the defendant in Welch who “accused the court of misleading
him,” Ms. Best accused the trial court of “mistreat[ing]” her and suggested
that a denial of her motion would be in violation of her “rights under the
universal declaration of human rights in order to be represented.” (Ibid.)


                                        11
misconduct as a reason for its ruling—indeed, the court expressly focused on
Ms. Best’s inability to behave appropriately in the courtroom in the middle of
explaining its denial of the Faretta motion: “The determination I am making
is whether it is clear to me that you fully understand and appreciate the
expectations that will be placed on you . . . if you represent yourself . . . . And
one of those expectations is that you not interrupt the Court. . . . That you
fully appreciate and understand the consequences that might occur were you
to represent yourself. And I will tell you from our very limited conversation,
and my review of your RAP [sheet], as well as your understanding of the
[E]vidence [C]ode being contained inside the [P]enal [C]ode. . . . And that
post-trial motions is [sic] similar to closing statements or a summary of the
trial. [¶] I only asked a couple of specific things as related to a trial. Or that
even not knowing the difference between a speedy trial and a jury trial. [¶]
At this point, I am going to deny your request.”4
      The majority states, “Dent explains that we uphold a ruling made on an
improper ground if the record shows the ‘request was nonetheless properly
denied on other grounds,’ but it does not address requests that merely could
have been denied on discretionary grounds. (Dent, supra, 30 Cal.4th at
p. 218, italics added).” (Maj. opn. at p. 16.) To the extent the majority


      4  The ellipses in this quotation omit only Ms. Best’s interruptions of
the court. It should be noted that almost immediately before the quoted
statement, the trial court specifically commented that it had “been given a
RAP sheet by the attorneys,” and “did not find any reference in the RAP
sheet to a trial that was conducted between 2007 and 2012 or any reference
to an acquittal” in San Mateo or any county. Given that Ms. Best thereafter
again insisted that her successful self-representation occurred in San Mateo
and that the acquittal was indeed in the RAP sheet, one can reasonably infer
that the court’s subsequent reference to its “review of [the] RAP” refers to the
court’s previously expressed concern that Ms. Best had misrepresented her
purportedly successful experience with self-representation.

                                        12
suggests that an appellate court may only affirm the denial of a Faretta
request if the trial court expressly relied on that basis below, People v. Boyce
(2014) 59 Cal.4th 672 (Boyce) demonstrates that the majority’s reading of
Dent is unduly narrow. In Boyce, the trial court denied the defendant’s
Faretta request during the penalty phase of trial, finding that the request
was untimely and that the defendant was unqualified to represent himself
due to his mental impairment and lack of education. (Boyce, at pp. 701–702.)
On appeal, the defendant argued the trial court erred by considering his lack
of education as a basis to deny the Faretta request, failing to determine
whether his request was knowing and intelligent, and failing to apply the
appropriate factors to assess untimeliness. (Boyce, at p. 703.) The Supreme
Court found, “We need not resolve these contentions, however, because ‘the
record as a whole establishes defendant’s request was nonetheless properly
denied on other grounds . . . .’ ([Dent, supra, 30 Cal.4th at p. 218].) No Sixth
Amendment violation occurred because defendant did not make an
unequivocal demand to represent himself.” (Boyce, p. 703.) Thus, although
the trial court in Boyce did not deny the Faretta request based on a finding
that it was equivocal, the Supreme Court independently reviewed the record,
found the request to be equivocal, and followed Dent in holding that no
Faretta violation had occurred. (Boyce, pp. 701–705.) Dent is therefore not,
as the majority seems to suggest, limited to cases in which a trial court
denies a Faretta motion on multiple explicit bases, one of which is unfounded
but another of which would support affirmance.5

      5 In my view, the majority errs in attempting to explain away the
import of Boyce. This dissent’s citation to Boyce is merely to demonstrate
that the majority overstates Dent—to wit, Dent does not, as the majority
seems to suggest, broadly proclaim that a denial of a Faretta motion may be
affirmed only on an alternative basis on which the trial court explicitly relied.


                                       13
      I find no more persuasive the majority’s reliance on Bergin v. Portman
(1983) 141 Cal.App.3d 23, 27–28 (Bergin), which quoted People v. Union
Machine Co. (1955) 133 Cal.App.2d 167, 171 (Union Machine). (Maj. opn. at
p. 17.) In Bergin, the trial court dismissed an action for failure to prosecute



(Maj. opn. at p. 16 [under Dent, we uphold a ruling made on an improper
ground if the record shows the “ ‘request was nonetheless properly denied on
other grounds’ ”; further stating that Welch was affirmed because the trial
court “also properly relied” on an alternative basis for denial].) So
understood, whether the alternative basis in Boyce was a question of law or
discretion is irrelevant to the proposition for which it is herein cited.
Moreover, People v. Halvorsen (2007) 42 Cal.4th 379, 433–434, demonstrates
the fallacy of the majority’s position that Dent and Boyce are not on point
here, purportedly because “the alternate grounds urged upon us are, not
issues of law, but matters committed to the sound discretion of the trial
court.” (Maj. opn. at p. 17, fn. 6.) In a case that predated Indiana v.
Edwards (2008) 554 U.S. 164, the Halvorsen Court found that the trial court
erred by denying a Faretta motion on an “invalid” legal basis, “[defendant’s]
supposed mental incapacity not amounting to incompetency to stand trial.”
(Halvorsen, at p. 433.) The Supreme Court then cited Dent and went on to
decide whether the Faretta motion nonetheless would have properly been
denied on the basis of untimeliness, a matter “ ‘ “addressed to the sound
discretion of the court.” ’ ” (Halvorsen, at pp. 433–434 & fn. 15 [“Even when
the trial court does not state it is denying a Faretta motion on the ground of
untimeliness, we independently review the record to determine whether the
motion would properly have been denied on this ground. ([Dent, supra, 30
Cal.4th at pp. 218, 222.]”].) Although the Supreme Court ultimately found
the motion to be timely (Halvorsen, at p. 434), that determination is
irrelevant to the point made here: If, as the majority posits, Dent stands
narrowly for the twin propositions that denial of a Faretta motion may be
upheld only on an alternative basis expressly relied on by the trial court, and
only one that is based on a question of law as opposed to discretion,
Halvorsen would not have followed Dent to determine whether the denial was
proper on the discretionary ground of untimeliness, an inquiry the Court
specifically found necessary to its resolution of the matter. (Halvorsen, at
p. 434 & fn. 15 [the fact that the trial court’s “stated basis” for its denial was
invalid “[did] not end the matter,” as timeliness had to be considered even if
the trial court did not deny the motion for that reason].)

                                        14
based on its reading of Code of Civil Procedure section 583, subdivision (c).
(Bergin, at p. 25.) The appellate court held that the trial court erred in its
construction of section 583 and, as a result, improperly dismissed the action.
(Bergin, at p. 26.) The respondent argued that even if the trial court had
erred in its analysis of section 583, “the judgment of dismissal should be
upheld on the ground that the trial court had the power to dismiss for lack of
diligent prosecution independent of the provisions of section 583,” and that
the trial court’s decision could not be overturned absent a manifest abuse of
discretion. (Bergin, at p. 27.) The Bergin court rejected this contention,
noting that the trial court’s decision was “based exclusively on section 583
without reference to any ‘independent basis’ for the ruling,” and that there
was “no indication that the trial court exercised its discretion in dismissing
the action, much less that it considered” any discretionary basis for dismissal.
(Ibid. at pp. 27–28, italics added.)
      Similarly, in Union Machine, the trial court restricted cross
examination of an expert on property valuation on the erroneous basis that
the questions were not permitted “because it had been shown that the expert
had not learned of” the purchase offers at the heart of the proposed questions.
(Union Machine, supra, 133 Cal.App.2d at p. 171.) Because the trial court’s
challenged rulings were “clearly made as matters of law, of admissibility, not
as matters of discretion,” the trial court rejected the respondent’s arguments
that the judgment could be affirmed on the alternative bases that the trial
court had discretionary power to limit unreasonable cross-examination, or
that the trial court could have barred the questions based on the belief that
the “real purpose” of the questions was to prove market value, which was not
permitted. (Ibid. at pp. 171–172.) In so ruling, the court noted that “there is
no indication in the record” that the bases suggested by the respondent were



                                       15
considered by the trial court, “the only ground given being that the expert did
not know of the offers.” (Ibid. at p. 172, italics added; see also ibid. at p. 171
[“the record shows that [limiting unreasonable cross-examination] was not
the basis of the court’s decision”].) Thus, to the extent these cases can be
extended to our review of the denial of a Faretta motion (notwithstanding
Dent), Bergin and Union Machine stand only for the proposition that a ruling
made “exclusively” on a legal basis cannot be sustained on an alternative
discretionary basis concocted by a respondent when the record reflects “no
indication” that the court even considered such a reason for its ruling.
(Bergin, supra, 141 Cal.App.3d at pp. 27–28; see also Union Machine, supra,
133 Cal.App.2d at p. 172.)
      In relying on Bergin and Union Machine, the majority fails to recognize
that the record in this case shows every indication that the court expressly
considered Ms. Best’s disruptive and inappropriate courtroom behavior (i.e.,
her repeated interruptions and baseless claim of prior successful experience
with self-representation) in making its ruling. Again, a full quotation of the
record—omitting only Ms. Best’s interruptions and other comments—
demonstrates that the court’s ruling was not “based exclusively” on what the
majority deems an erroneous focus on Ms. Best’s lack of legal knowledge.
(Bergin, supra, 141 Cal.App.3d at pp. 27–28; maj. opn. at pp. 16–17.)6 The


      6  In explaining its ruling, the trial court began as follows: “Is there
anything else that you want to tell me—before I make my ruling on your
request to represent yourself? . . . All right. So at this point, I appreciate
that you want to represent yourself. I have both read and considered the
waiver of right to counsel form. I have been given a RAP sheet by the
attorneys. I will tell you that I did not find any reference in the RAP sheet to a
trial that was conducted between 2007 and 2012 or any reference to an
acquittal.” After the defendant insisted that the RAP sheet did show her
successful self-representation San Mateo and reiterated her desire to


                                        16
record in this case thus demonstrates that, unlike Bergin and Union
Machine, the trial court did not “exclusively” ground its ruling on unsound
legal footing. Rather, in denying the Faretta motion, the court specifically
pointed to Ms. Best’s inappropriate behavior with respect to interruptions,
her false representations as to her purported self-representation in a prior
San Mateo case, and the statements showing her failure to comprehend the
basics of self-representation. Thus, even assuming the majority were correct
that the trial court inappropriately considered Ms. Best’s lack of legal
knowledge, Bergin and Union Machine are distinguishable because a fulsome
reading of the record in this case reveals that the court’s ruling was not
“based exclusively” on an impermissible rationale; instead, the ruling was
based on multiple, intertwined reasons, including Ms. Best’s interruptions
and misrepresentations as demonstrated by her RAP sheet.




represent herself because she was “competent enough” and wanted to “get the
proper outcome in [her] case,” the court continued its ruling: “I hear that
[you want to represent yourself]. And I will tell you that I did see from the
docket that you were recently—a doubt was declared as to your competence,
and it was determined that you are competent to proceed to trial. And I’m
not making a determination today whether or not you are competent to
proceed to trial. The determination I am making is whether it is clear to me
that you fully understand and appreciate the expectations that will be placed
on you . . . if you represent yourself . . . . And one of those expectations is that
you not interrupt the court. . . . That you fully appreciate and understand the
consequences that might occur were you to represent yourself. And I will tell
you from our very limited conversation, and my review of your RAP, as well
as your understanding of the [E]vidence [C]ode being contained inside the
[P]enal [C]ode. . . . And that post-trial motions is [sic] similar to closing
statements or a summary of the trial. [¶] I only asked a couple of specific
things as related to a trial. Or that even not knowing the difference between
a speedy trial and a jury trial. [¶] At this point, I am going to deny your
request.” (Italics added.) The ellipses in the foregoing quotation omit only
Ms. Best’s interruptions of the court.

                                        17
      In my view, Ms. Best’s interruptions—even after being admonished not
to interrupt—and heated persistence with her false claim that she had
successfully represented herself in a San Mateo case that lasted 5 years—
despite being told that the RAP sheet contained no reference to any such
case—provide an additional and independent basis on which to affirm the
trial court’s denial of the Faretta motion. (See Dent, supra, 30 Cal.4th at
p. 218 [even if self-representation request was denied on an improper basis,
the ruling may be affirmed “if the record as a whole” establishes it was
properly denied on other grounds].)
      In short, I must part ways with the majority, as I conclude that the
record as a whole reflects the trial court’s explicit and appropriate concern
with Ms. Best’s unwillingness to abide by courtroom protocol as well as her
statements demonstrating that she did not fully appreciate the dangers and
disadvantages of self-representation, with her “ ‘eyes open’ ” to the
consequences of waiver. (Faretta, supra, 422 U.S. at p. 835.) I would affirm
the denial of the Faretta motion.
                                    Conclusion
      In my view, the majority errs in analyzing this case as one in which the
trial court denied Ms. Best’s self-representation request because the trial
court was improperly focused on her lack of technical legal knowledge. I
believe the record instead reflects that the court appropriately assessed
whether Ms. Best’s waiver was indeed knowing and intelligent, with full
awareness of the rights she claimed to understand and the consequences of
proceeding pro se. Because I believe the trial court correctly found that the
waiver was not knowing and intelligent, and because the record additionally
demonstrates the court’s reliance on Ms. Best’s significant disruptions and




                                        18
lack of candor as additional reasons for denying the Faretta motion, I would
affirm the ruling. With respect, I dissent.


                                              _________________________________
                                              BROWN, J.




People v. Best (A155459)




                                      19
Trial Court:               City & County of San Francisco Superior Court

Trial Judge:               Hon. Charles S. Crompton

Counsel for Appellant:     Kevin B. King, by appointment of the Court of
                           Appeal under the First District Appellate
                           Assisted Case System

Counsel for Respondents:   Xavier Becerra, Attorney General; Jeffrey M.
                           Laurence, Senior Assistant Attorney General;
                           Catherine A. Rivlin, Supervising Deputy
                           Attorney General; Ann P. Wathen, Deputy
                           Attorney General
