(Super. Ct. Nos. CM031208, SCR60875)
The opinion of the court was delivered by: Robie , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After the trial court denied his motion for self-representation (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562]), the court found defendant Thomas Franklin Palmer not guilty of assault with a firearm, but guilty of four counts of assault with a deadly weapon and possession of a firearm by a felon, and also found that he personally inflicted great bodily injury in two of the assaults. The trial court sentenced him to 11 years 8 months in prison.*fn1
On appeal, defendant contends the court erred in denying his Faretta motion and in not staying sentence on two of his assault convictions and one of his great bodily injury enhancements pursuant to Penal Code*fn2 section 654. We conclude the trial court improperly denied defendant's Faretta motion because after the court found defendant's request to represent himself was untimely, the court did not consider the factors from People v. Windham (1977) 19 Cal.3d 121 (Windham) in determining whether defendant should be allowed to represent himself anyway. On review, we conclude that when the Windham factors are applied to this case, they require that defendant's motion to represent himself be granted. Accordingly, we will reverse the judgment and remand for a new trial.*fn3
FACTUAL AND PROCEDURAL BACKGROUND
Between 5:30 and 6:00 p.m. on July 27, 2009, defendant was frying fish in the kitchen of the house he shared with four roommates. While defendant was cooking, one of his roommates, Gary Raper, was also in the kitchen. Another roommate, Randy Jamison, came into the kitchen, took a piece of meat out of the refrigerator, and placed it on the counter. Jamison then went outside to start the barbeque. Once he lit the barbeque, Jamison came back into the kitchen to get the meat. Defendant started to yell at Jamison about not having the kitchen to himself and told Jamison to "[g]et the f out of my kitchen." Jamison and defendant argued until Raper yelled at both men to "[s]hut the fuck up" and "start acting like men instead of children." Jamison then walked toward the back porch and defendant removed the frying pan from the stove and placed it on the counter before going to his room.
A short time later, Jamison returned to the kitchen and yelled at Raper for screaming at him and defendant. While Jamison was yelling at Raper, defendant came back to the kitchen and placed the frying pan back on the stove. Defendant and Jamison continued their argument and Raper again yelled at the two to "shut up." Defendant then took the frying pan off the stove and flung its contents at Jamison, who was standing about eight feet away. Both Jamison and Raper were hit with hot oil. Jamison ran out of the kitchen and into the backyard screaming in pain, while Raper and defendant went to their respective rooms. Raper retrieved a towel from his room and returned to the kitchen where he saw defendant come out of his own room and walk toward the backyard. Defendant was carrying a rifle and said, "'I'm going to kill that mother fucker right now.'" Raper then returned to his room to take a shower.
After Jamison ran outside screaming, he told roommate Sheen Leduc to call 911. While Leduc was calling, he yelled to Jamison to "look out." Jamison looked up and saw defendant running at him with a rifle. Defendant pointed the rifle at Jamison's head and pulled the trigger; however, the gun was not loaded. Defendant then grabbed the rifle by the barrel and swung it at Jamison's head. Jamison blocked the blow with his arm and the rifle butt snapped. Jamison fell on the deck, and defendant grabbed the barbeque Jamison had lit earlier and dumped the hot coals onto Jamison. Jamison then rolled off the deck and landed on an old piano frame at the bottom of the deck. Defendant then walked to a water spigot to attend his own wounds.
Defendant was charged in counts 1 through 3 and 5 with assault with a deadly weapon, in count 4 with assault with a firearm, and in count 6 with possession of a firearm by a felon. The information further alleged as to counts 1 and 5 that defendant personally inflicted great bodily injury.
On October 20, 2009, defendant provided his attorney the names of witnesses he wanted subpoenaed. Defendant also requested an expert be subpoenaed. On October 22, at a trial readiness conference, defendant waived his right to a jury and his attorney told the court that a trial date of November 2 was acceptable because witnesses and documents had been subpoenaed for that day. On October 29, defendant appeared in court to request civilian clothes for his trial.
On November 2, 2009, the day of trial, defendant moved to relieve his attorney and to represent himself. During the Marsden*fn4 hearing, defendant stated that he requested subpoenas for multiple witnesses and experts and that his attorney never subpoenaed them. Defense counsel responded that his investigators had spent numerous hours interviewing the witnesses defendant told him about and that the witnesses were prejudicial to defendant's case and confirmed defendant has an anger problem and "[h]e can go into a rage over anything." Defendant also said that most of his meetings with his attorney had been about possible plea deals and not issues concerning the merits of his case. The trial court ultimately denied the Marsden motion.
During the Faretta hearing, the prosecutor opposed the motion on the ground that trial was scheduled for that day and his witnesses were waiting in the hall. Defendant requested a six- to eight-week continuance to prepare for trial in the event his motion was granted. The court denied the Faretta motion on the grounds it was untimely and would result in prejudice to the prosecution. In ...