my name is mary polk alice i represent the appellant in this matter by court appointment i want to i have a limited time i have a few particular topics that i'd like to at least hit on but the most important of them all is simply to state that i not only represent mr falter in this case i feel as though i'm standing here in defense of the sixth amendment right of self representation that the united states supreme court this guaranteed right to be denied pretty much solely because the case was going to be delayed for the defendant to have an opportunity to prepare the court of appeal emphasized that when it took lynch and did its entire analysis on that state case rather than on forever anymore i think the fact that the court of appeal did a complete turnaround and when you look at those two decisions and i'm sure you have all read them when i read them when i got to the second one i was shocked i mean i've been a practicing attorney for a long time i've probably done one hundred forty jury trials fifty sixty appeals i have never seen absolutely i don't see how this court can get around its own precedent that says within weeks within weeks of trial so let me just when i read the colloquy on i guess it was january sixteenth when he raises the forever motion i thought the case was there for trial no well no because everyone knew what it was but it had been set for trial that day could have been set for trial  january fifteenth the day before it was set for trial in department twenty two right everyone should up in the sixteenth knowing it couldn't go right because defense counsel had another time not waived case that had to go everyone knew it wasn't going to go then that the master calendar judge trance reserved to department twenty eight for trial well yes except everyone knew it wasn't going to go to trial what do we do with that though i mean the case was ready for trial no it wasn't ready for trial and i don't think the court of appeal even found that it was what they found i mean if you look at what they saw was a real trial date it wish it was you know their findings on where the case was in their first opinion they said there was no trial date really it wasn't going to go no one knew when it was going to go all that they could tell was it was going to be at least weeks that's what the court of appeal its first decision and they were right and the record supports that then crown's lynch and the court of appeal so wanting to please the california supreme court apparently i don't think you have that i that a bad thing i mean from time to time we're supposed to please the u s supreme court we don't always succeed you're not supposed to they want to say you're supposed to follow the law well that's so they thought they were following a line you know i don't believe they did i think they knew they had to twist those facts all around to cram them into lynch and they forgot about forever and they forgot about the fact that this court the ninth circuit has held for a decade or more that the standard is state courts cannot start messing with this and putting their own spin on it they have to comport with the standards set by the supreme court that's what marshall retailer sen request well weeks before trial is timely there was never any question that mr fall tree didn't do a thing to do it didn't do this to delay to obstruct in each opinion that on the second opinion they basically they ever said they they said things like it was positively contemplated that it would go to trial there were things that had to be done but everyone was on that path i mean these were the kinds of descriptors they had for the time status it was it was it was a truly abusive decision on this thing if there is no vigilance and i understand all  get discretion i understand that if it's not weeks before trial and here it was four months before trial the supreme court didn't say weeks before the trial the latest trial date well that's what they said weeks before the trial the judge in department twenty two didn't know it was going to be four months later we were the trial with snow she didn't know it was going to whoever when the judge was in department twenty two knew that it was going to be weeks weeks weeks that's correct i don't see how this court can get around marshall retailer for rata and the supreme court decision and i think it's marshal the rogers that says you use your own precedent to decide if this is a clearly established supreme court standard you did it ten years ago apply it here and this has to get reversed if the court of appeal should not have done what they did and it cries out for correction from this court i attorney general's office representing the respondent here i'd like to begin where justice because george judge kozinski asked about the reasonable in this of the supreme court in the state supreme court opinion to me that's the first issue in the case i understand that this court has held that it's clearly established law in forever that a forever motion made weeks before trial is timely and that the court has no discretion to deny that we've gone by that determination you are you are i'm not here asking this court to overrule that but now this court has a separate issue in front of the california supreme court lynch said we don't believe that's what fred a whole we don't believe forever has that weeks before trial standard is invariably timely that's what they said the california supreme court read for retta to understand that the court the trial court can always take the of the case in front of it when the motion is made in ruling on the fred a motion so the first issue is is that ruling by the california supreme court objectively reasonable and if it's not then the california supreme court is allowed to implement that rule and the a t p a does not allow this court to reverse it however issue two let's assume the court says you know what the california supreme court was objectively reasonable in finding that forever does not have a weeks before trial is necessarily timely rule then what do we do ok it seems to me i have to be able to persuade this court that this record shows that that that this motion was made not weeks before trial but when trial was imminent during the trial was close and i think the record supports that january eleventh it sent to department twenty two for trial forthwith january fifteenth the court states this case was sent here for trial but the court learns that mr jacobs the defendant's lawyer has another trial the court says i'm going to put this matter over until tomorrow morning and give counsel a chance to get their motions filed and i'm also going to speak with the master calendar judge about timing related to this case we know what happens on january sixteenth defense counsel comes with the severance motion and other motions in hand the prosecutor has his motions in hand but the defense attorney tells the court i have another trial no wait time waiver it's on calendar tomorrow we have to get out by january twenty eighth at the latest and i anticipate that it would take do more than two weeks to try the case so it's certainly possible that that might not have gotten back to the trial court until they'd be wary i guess would be eleventh but it also we know that the court said ok i want you back here on january twenty third for the severance motion and we may learn then about what happened with mr jacobs case because there's no guarantee as we all know that the case would go to trial even so at january fifteenth the time the trial court is called the general sixteenth excuse me the time the trial court is called upon to rule on the for at a motion all it knows is it's coming back on the twenty third for severance and the court said will come back on the fourth to determine where mr jacobs is and where the cases so there was no positively definitive trial date but trial was certainly contemplated the motion wasn't made weeks before trial unless we do as appellant didn't say ok well the trial didn't take place until may i understand that it was may weeks before trial when we look at hindsight but we don't judge the trial court's ruling because it seems to me that karl quote for better or worse took correct but then what happens why is a motion to represent yourself in a sort of less lesser status or lesser dignity than all these other things that come into play that wind up for months i'm not arguing for months yes but anyway it wasn't at the time the motion was made it was contemplated that we will be back in a week for severance motions cumulatively cumulatively  well let me step back what happens on the twenty third as we learn that the defendant has had some physical issues so then that slows everything up that changes what's going on and then we have the severance motion granted so i could go and explain everything that happened after january sixteenth but that isn't going to answer your honor's question whether it did the trial court give this forever motion less dignity than the other motions and i don't believe the trial court did because california law allowed the trial court when the fred a motion was in front of it to take these other matters into consideration that the case had been untried for two years that it that it involved four or five different robbery incidents with many witnesses that the defense witnesses had been subpoenaed for trial and then no he had is when the prosecutor said i have my witness list yet but he had subpoenaed them because you know i look to see if whether the judge ordered the witnesses sorry you're correct your honor at the time of the forever motion all the trial court had was windham right and wyndham had factors that deal with exercising your discretion on an untimely for an emotion california didn't have a list of factors that went to the timeliness motion the timeliness of the motion at the time it was just the sort of reasonable time before trial at the trial court finds that it wasn't a reasonable time for before trial it goes to the windham factors what our trial court did is use the windham factors to find that it was on time reversed on appeal the first time california supreme court decides lynch california supreme court says the ninth circuit rule isn't our rule we don't just look at weeks before trial we look at other things including the time between the motion and the trial day whether trial counsel is ready to proceed the number of witnesses the complexity of the case ongoing  pretrial proceedings whether defendant had earlier opportunities to assert forever and any disruption or delay that would result from a granting of the fret a motion so the court of appeal on the second time taking those factors into consideration sa this motion was untimely now i understand this court may find that it was the california supreme court of appeal was wrong but that's not good enough this court has to find that lynch is objective leon reason unless the court has any further questions  well i could not disagree more the california supreme court decision in lunch is not before this court it is not for you to decide if the california supreme court in lynch was objective leon reasonable what's to be decided here is whether the court of appeal in fault tree was objective leon reasonable and they were for one thing lynch can be distinguished in so many ways from what happened here and the supreme court didn't say to the court of appeal we're sending this back to you because we think you made a mistake they said we're sending this back to you for you to think about whether or not this would change your result the lynch case was a death penalty case it was going to be about a two month trial the time waiver had been withdrawn on it by the defendant there were some sixty five government witnesses many apparently no particular number but many were elderly many were outside the area the defendant wasn't able to say how much time he needed to prepare i mean it was it was completely distinguishable factually from this case what happened here and i so urge the court to do something about this because forever is disappearing in the california courts if in fact it did not have to be honored here this was i mean the finding of the court of appeal in its first decision when defendant presented his for read a motion neither the court nor the parties had any firm notion of when trial would begin the date of the commencement of trial although a vaguely contemplated to occur on february fourth was still nebulous and speculative more than that serious obstacles to the commission of trial within a reasonable time remained unsettled and it goes on and on and on and it completes with trial was at least weeks away that's right