Filed 2/27/13 Gates v. Super. Ct. CA4/2

                    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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         IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                                DIVISION TWO



LEON STEVEN GATES,

         Petitioner,                                                     E057916

v.                                                                       (Super.Ct.No. FVI1102143)

THE SUPERIOR COURT OF                                                    OPINION
SAN BERNARDINO COUNTY,

         Respondent;

THE PEOPLE,

         Real Party in Interest.



         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.



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       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 constitutional right to proceed without 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


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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 People v.

Windham, the request should 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 Faretta rights again. Given the clear error of the court by that 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, supra, 134 Cal.App.4th at p. 1531) 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.




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       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.




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