Filed 4/22/13 P. v. Davis CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

AYRIANNA ANGENET DAVIS,

Defendant and Appellant.

 B239829

 (Los Angeles County

 Super. Ct. No. KA096375)

APPEAL from a judgment of the Superior Court of Los Angeles County. 

David C. Brougham, Judge. Reversed.

Kelly C. Martin, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Blythe J. Leszkay and Scott A. 

Taryle, Deputy Attorneys General, for Respondent.

________________________________________
2

Appellant Ayrianna Davis was charged with a single felony count of attempting to 

dissuade a witness from prosecuting a crime. (Pen. Code, § 136.1, subd. (b)(2).) On 

Friday, February 24, 2012, during voir dire of prospective jurors for her trial, the court 

denied Davis‟s motion to represent herself in pro. per. Midday on Monday, February 27, 

the jury was sworn, and that afternoon it heard the testimony from two prosecution 

witnesses and Davis‟s testimony in her own defense. On February 28, the jury was 

instructed and commenced deliberations. On the morning of February 29, 2012, it 

rendered its guilty verdict.

Davis appeals from the judgment on a number of grounds, including her 

contention that the trial court erred in denying her motion to represent herself at trial. 

Because we conclude that this error requires reversal of her conviction, it is unnecessary 

to discuss her other contentions.

STATEMENT OF FACTS

In late November, 2011, Aridai Mendez‟s 16-year-old sister Lilibeth and her 

sister‟s friend Joselyn had reported that Leonard Alcala, a neighbor who lived with his 

family in a house behind the Mendez family home in El Monte, had tried to rob them at 

gunpoint.1 Lilibeth and her parents had reported the incident to the police, and Alcala 

had been arrested. Alcala was held to answer on four felony charges, including one count 

of attempted second degree robbery, attempting to take personal property from Lilibeth 

by force or fear.

On November 29, 2011, Davis approached Detective Batres of the El Monte 

Police Department at the El Monte courthouse, telling him that the incident with Alcala 

had not happened as the victims had reported it. Batres told Davis not to contact the 

Mendez family.

On December 6, 2011, Batres received a phone message from Davis saying that 

she was a family friend with information about the Alcala case, and that unless he 

 

 

1 Because Aridai and Lilibeth Mendez share the same last name, we refer to them by 

their first names.
3

returned her call she intended to contact his watch commander, or an attorney, in order to 

“get the truth on the record.” Batres returned the call the same day, leaving a message for 

Davis.

On the evening of December 6, 2011, Aridai (who was then 18) was home with 

her seven-year-old sister when she saw Davis looking through the home‟s mesh security 

door. Davis asked Aridai if she was Joselyn‟s friend. When Davis identified herself as 

Alcala‟s girlfriend, Aridai closed and locked the security door, and (pretending to be 

texting) used her telephone to make an audio recording of her conversation with Davis, 

which lasted about 20 minutes. 

Davis told Aridai in the December 6 conversation that “the attempted robbery was 

kind of, like a lie”; the incident with Alcala had been “a drug deal gone bad” in which 

Lilibeth and Joselyn “were trying to get dope back from [Alcala],” and they had gone to 

the police with their robbery accusation when he would not agree. “[W]hat I‟m asking 

for here is for people to tell the truth and be righteous about it,” and to not lie to “put 

somebody behind bars.” Davis also noted that because the girls were doing drugs and 

dealing drugs, if Child Protective Services became involved, Aridai‟s parents could go to 

jail and have their daughter taken away from them. “They‟re going to lie to the police 

about some shit that‟s really going on. The parents are going to jail and the girls are 

taken away. . . .” She asked Aridai to persuade the girls “that they should really 

reconsider their statement,” adding that “they don‟t have to mention the drugs.”

Davis repeated a number of times during the conversation that the girls should not 

mention the drugs to the police, but should just tell them not to press charges. “I‟m not 

threatening at all,” and “I‟m just saying that‟s what‟s fair.” “My thing is that, don‟t lie. 

Don‟t call the police and make a lie. That‟s my only thing. If [Alcala‟s] going to go 

down, then, then they‟re going to be reprimands for what they‟re doing, too.” She also 

repeated that “if . . . I have to let [the police] know what‟s really going on, then your 
4

family is going to be in trouble.” “I just want you to relay to them that if they can‟t tell 

the truth, then it‟s gonna get really serious, and it‟s not a threat, it‟s a promise.”2

While repeating these messages to Aridai, Davis gave Aridai telephone numbers 

for both herself and Detective Batres, and told Aridai that her name was Carter. She also 

said that she had already spoken to Batres and planned to give her official statement the 

next day. She said that although Batres had told her not to talk to family members, she 

believed that she was free to do so in the absence of a restraining order.

Aridai‟s mother and sister Lilibeth arrived home as Davis was leaving. Her 

mother asked Davis who she was and what she was doing there, but Aridai said she 

would explain. Aridai then told her mother and sister what had happened, and played the 

audio recording for them. The next morning Aridai and her parents went to the police 

station and spoke to Batres—whom Aridai had not met before—about her conversation 

with Davis, but did not tell him about the audio recording.3

Later on December 7, 2011, Batres returned Davis‟s call from the previous day. 

Batres said he tried to determine whether he was speaking to someone named “Davis” or 

“Carter,” and asked why she had threatened to call his watch commander. Apparently 

taking offense at Batres‟ tone, Davis hung up.

On December 12, 2011, Batres was at the courthouse with Lilibeth and Aridai for 

Alcala‟s arraignment or preliminary hearing when Aridai identified Davis as the person 

who had tried to persuade her on the evening of December 6 to have Lilibeth drop the 

robbery charges against Alcala. Batres then arrested Davis, advised her of her Miranda

rights, and discussed with her the Alcala case and the events of the evening of 

 

 

2 During the recorded conversation Davis also recounted that Jocelyn had already 

agreed not to press charges, that the gun Alcala had been charged with using for the 

robbery had been a BB gun, and some of the reasons she believed Alcala‟s account of the 

facts was credible.

 

3 According to Batres, Aridai also told him that when she arrived home before her 

conversation with Davis on the evening of December 6, she saw her mother speaking 

with Davis, and that her mother had then gone into the house while Davis spoke with 

Aridai.
5

December 6. Davis told Batres that she was not a witness to the robbery between Alcala 

and Lilibeth, and did not know whether his gun was a real gun or a BB gun. An audio 

recording of Batres‟s conversation with Davis on December 12 was played for the jury, 

and copies of a transcript of it were provided to the jurors.4

At the prosecution‟s request the court took judicial notice of a number of facts, 

including that Alcala had been charged with attempted robbery from Lilibeth Mendez; 

that Lilibeth had testified at his preliminary hearing on December 13, 2011; and that 

Alcala had been held to answer and was charged by information. Alcala eventually 

pleaded guilty to the charges.

Davis testified on her own behalf. She confirmed that she had spoken with Batres 

at the courthouse on November 29, attempting to tell him that “there was information that 

wasn‟t included” in the testimony (apparently at Alcala‟s arraignment) about the case, but 

that he did not seek to get any information at all from her. She had then called Batres on 

December 6, identifying herself as a friend of the Alcala family. She left a message that 

she had information that she felt needed to be heard, along with her name and phone 

number. When Batres called her back, however, he asked her, abrasively, only about 

why she had threatened to call his watch commander, and did not want to hear anything 

about the case. It was then that she went to speak with Aridai.

Davis testified that she went to the Mendez house on December 6 because she felt 

“there was some information that was withheld”—concerning the involvement of drugs 

in the supposed robbery—and intended only to speak with some adult, and “just to have 

everyone tell the truth and to be honest.” She had told Aridai that her name was Carter 

 

 

4 At the outset of the trial the court heard and denied a motion to exclude the audio 

recording of Davis‟s statement to Batres. Davis argued that the Miranda admonition and 

her response to it were ambiguous in a number of respects, including that during the 

admonition, she had asked Batres whether or not she could have an attorney, to which he 

answered “Yes, you can.” But when she then asked, “Right now?,” he replied, “No, not 

right now. When you go to court.” Davis argued that the questioning then should have 

stopped and she should have been provided counsel. The court agreed that Davis had 

“some possible ambiguity or confusion” about the admonition, but it denied the motion 

based on her recorded statement that she fully understood it.
6

(rather than Davis) because she did not really know who Aridai was, and that was a 

nickname she sometimes used. But she had not tried to hide who she was, by showing 

her face, telling Aridai that she was Alcala‟s girlfriend, and giving Aridai her telephone 

number. And she had identified herself also to Batres, and told him that she had spoken 

with Aridai. She did not tell Aridai what to say, but only tried to persuade Aridai—

repeatedly—to have the family deal with the fact that the alleged robbery was really 

about efforts to get Alcala to give Lilibeth and Jocelyn drugs, and to warn them that the 

situation could lead to serious problems for Lilibeth and her parents.

THE CASE

An information filed January 23, 2012, charged Davis with one felony count of 

attempting to dissuade Aridai Mendez, a witness to a crime, from causing the crime to be 

prosecuted. (Pen. Code, § 136.1, subd. (b)(2).) On January 23, 2012, upon the public 

defender‟s declaration of a conflict of interest, the alternate public defender was 

appointed to represent Davis. Davis pleaded not guilty, and the case was scheduled for 

pretrial hearing on January 30, 2012, for readiness hearing on February 17, 2012, and for 

jury trial on February 22, 2012.

Davis was first represented by Alternate Public Defender Monique Gregoire 

Williams at her January 30, 2012 pretrial hearing. On February 22, 2012, the date set for 

trial, an amended information was filed, changing the identity of the witness who Davis 

was charged with attempting to dissuade from Aridai to Lilibeth.

When the case was called for trial the next day, February 23, 2011, the trial court 

accepted Davis‟s plea of not guilty to the amended information. The court then denied, 

as untimely, Davis‟s motion to continue the trial to enable her to hire private counsel in 

light of the filing of the amended information. In denying the motion, the trial court 

noted that the information‟s amendment changed only the identity of the person Davis 

was charged with attempting to dissuade, from the sister of the victim of the robbery to 
7

the actual victim of the robbery, but left unchanged all of the evidence and discovery.5 

Jury selection commenced that afternoon.

Before voir dire of the prospective jurors resumed on the afternoon of Friday, 

February 24, 2012, Davis‟s counsel informed the court that Davis had called her that 

morning, asking that she be permitted to represent herself in propria persona. Her 

counsel advised the court that Davis had told her she was educated as a nurse; that the 

case was simple, with perhaps just three witnesses; that there was nothing counsel could 

do to satisfy Davis that she was “doing the job that she would like me to do”; and that 

Gregoire Williams was prepared to “finish off the voir dire for her” before handing over 

the file to begin taking evidence on Monday. “It‟s her life. And it‟s her career that‟s at 

stake. And . . . if she feels that she can do a better job then she should be able to have 

that chance to do it. She‟s an intelligent person so she can probably handle it.

The trial court denied the motion, solely on the ground that the request was 

untimely. “I‟m not making any legal findings on anything at this point other than the 

timeliness of the request and we need not get into other issues.”

After telling Davis that her request was denied because “in my opinion, there‟s no 

reasonable argument that can be made for this request being made timely,” Davis 

explained her request to the court: “I just thought I had a right to self-representation 

according to my Sixth Amendment right. It says that the right applies only at trial. And 

the full, you know, panel jury hasn‟t been selected. They haven‟t been sworn in yet. . . .” 

The court responded that “these requests need to be made timely,” because “if we didn‟t 

have a timeliness requirement it would open the door to all kinds of switches at all kinds 

of awkward times.” Because “this is, in my opinion, not close to a timely request,” the 

court explained, “that will be denied.”

 

 

5 The trial court also denied Davis‟s motion to dismiss the charge against her under 

Penal Code section 995, and her motion under Penal Code section 632 to exclude 

Aridai‟s surreptitious audio recording of her December 6 conversation with Davis.
8

Jury selection was completed and the jury was sworn 45 minutes later. Alternate 

jurors were selected and sworn the morning of Monday, February 27, 2012. Jury 

deliberations began mid-afternoon, February 28, following the close of evidence; on the 

morning of February 29, 2012, the jury returned its verdict of guilty. On March 7, 2012, 

the court suspended imposition of sentence, ordering formal probation with various 

conditions, along with 150 days in county jail. Davis filed a timely appeal.

On appeal Davis contends that under both state and federal law her selfrepresentation request was timely, thus depriving the trial court of discretion to deny it. 

To that contention she adds that even if the court was justified in concluding that her 

request was untimely, it erred by then failing to exercise its discretion to determine 

whether her self-representation request nevertheless should be granted; that if the court 

had exercised that discretion, her request should have been granted; and that her 

conviction cannot be sustained on the basis of a harmless-error analysis. We find merit in 

these contentions and therefore reverse her conviction and remand the case for a new 

trial.6

DISCUSSION

A defendant in a state criminal trial has a federal constitutional right to represent 

herself without counsel if she voluntarily and intelligently elects to do so. (Faretta v. 

California (1975) 422 U.S. 806 (Faretta); People v. Windham (1977) 19 Cal.3d 121, 124 

(Windham).) A trial court lacks discretion to deny a self-representation request if three 

conditions are met: the defendant is mentally competent and aware of the dangers of 

self-representation; the self-representation request is unequivocal; and the request is made 

“within a reasonable time before trial.” (People v. Welch (1999) 20 Cal.4th 701, 729.) 

As a matter of federal constitutional law, when a motion to proceed pro se is timely 

 

 

6 Davis‟s appeal raises three additional issues: that reversal of her conviction is 

required because the court erred in admitting the recording of her conversation with 

Aridai because her Fifth Amendment right to an attorney was violated when Detective 

Batres told her she could not have an attorney until she went to court; and because the 

court imposed conditions of probation that are constitutionally overbroad and 

unreasonable. Because we agree with her first contention, we do not address the others. 
9

interposed, a trial court must permit a defendant to represent himself upon ascertaining 

that he has voluntarily and intelligently elected to do so, irrespective of how unwise such 

a choice might appear to be.” (Windham, supra, 19 Cal.3d at p. 128.)

The trial court in this case identified untimeliness as the sole ground for its denial 

of Davis‟s self-representation request; it expressly declined to make any inquiry or 

determination with respect to any “other issues.” Under the test set forth in Windham, 

however, the timeliness of Davis‟s self-representation request must be the threshold 

inquiry. If Davis‟s self-representation request was timely, the trial court therefore would 

have no discretion to deprive her of her constitutional right to represent herself at trial 

without first ruling on her abilities and intentions—issues that it declined to consider and 

findings that it declined to make. (People v. Welch (1999) 20 Cal.4th 701, 729; 

Windham, supra, 19 Cal.3d at pp. 127-128 & fn. 5.)

A defendant‟s right to self-representation is invoked by her timely request. 

(Windham, supra, 19 Cal.3d at pp. 127-128), however (as the parties to this appeal 

agree), neither the United States Supreme Court nor the California Supreme Court have 

delineated a bright-line rule regarding when a motion for self-representation may be 

denied as untimely. (See People v. Lynch (2010) 50 Cal.4th 693, 722; Windham, supra, 

19 Cal.3d at p. 128, fn. 5.) The courts have refused to identify a single point in time at 

which a Faretta motion becomes untimely rather than timely. (People v. Clark (1992) 3 

Cal.4th 41, 99; People v. Nicholson (1994) 24 Cal.App.4th 584, 591.)

A request is timely as a matter of law if it is made a reasonable time before the 

commencement of trial. (Windham, supra, 19 Cal.3d at pp. 127-128.) In this case it is 

unnecessary for us to determine whether Davis‟s self-representation request met this 

timeliness standard, however. Whether her request was or was not timely as a matter of 

law, it unquestionably came at a time sufficient to invoke the trial court‟s discretion to 

grant the request upon consideration of appropriate factors—factors that the court 

expressly declined to consider. The effect of the trial court‟s ruling therefore was to hold 

that Davis‟s self-representation request was untimely as a matter of law. That error 

deprived Davis of the exercise of the court‟s discretion to which she was entitled.
10

1. Davis’s Self-Representation Request Was Not As A Matter Of Law 

Untimely.

More than three decades ago our Supreme Court found in Windham that the 

commencement of trial marked the time at which a defendant‟s self-representation 

request could no longer be considered so timely as to entitle the defendant to selfrepresentation as a constitutional right. (Windham, supra, 19 Cal.3d at p. 124.) In that 

case the trial court had denied the defendant‟s self-representation request, made shortly 

before the close of evidence on the last day of his three-day trial for assault, “principally 

on the ground that it came at too late a stage of the proceedings.” (Id. at p. 125.) The 

Supreme Court concluded that a timely self-representation request must be granted, but 

once the trial had commenced, it was then “within the sound discretion of the trial court 

to determine whether such a defendant may dismiss counsel and proceed pro se.” (Id. at 

pp. 124, 129 [failure to make a pretrial request for self-representation “amounts to a 

waiver of the unconditional right to proceed by way of self-representation”].) 

In the following years numerous cases have cited the timeliness rule to uphold 

denials of self-representation motions that were made after, or only shortly before, the 

commencement of trial. But whether trial had or had not actually begun was rarely (if 

ever) the decisive central issue in those cases; the threat of delay in the trial or other 

disruption of the administration of justice was an ever-present factor controlling the 

timeliness determination. In People v. Burton (1989) 48 Cal.3d 843, for example, the 

court upheld the trial court‟s finding that the self-representation request was untimely, 

where the defendant‟s counsel had made several appearances in the six months following 

the preliminary hearing “in which [the defendant] could have invoked his right to 

represent himself,” and that the self-representation request was accompanied by the 

defendant‟s assertion that “he was not ready to go to trial and needed an unspecified 

period for preparation.” (Id. at p. 853.) In People v. Clark, supra, 3 Cal.4th 41, a 

multiple-murder trial that was anticipated to involve over 100 witnesses and six months 

to try (id. at p. 92), the court found no error where “„[a]ny dispassionate reading of this 

record reflects that this defendant was playing games with the court on this issue.‟” (Id. 
11

at pp. 96-97.) The self-representation motion had been made after some years of pretrial 

proceedings and two previous trial delays at the defendant‟s request, in conjunction with 

requests for further delays. (Id. at p. 101.) “In sum,” the court concluded, “consideration 

of the Windham factors demonstrates that defendant‟s legitimate interests did not 

overbalance the disruption to the proceedings, delay, and potential for abuse which would 

be engendered by granting the motion.” (Ibid.)

In People v. Horton (1995) 11 Cal.4th 1068, also a complex death-penalty case, 

the court upheld the trial court‟s denial of the defendant‟s trial-day request to represent 

himself, finding “that defendant‟s actions demonstrated an attempt to manipulate the 

judicial process, to obstruct his prosecution, and to delay the trial.” It denied the selfrepresentation motion on those grounds, “and additionally on the ground the request was 

untimely (having been asserted on the date scheduled for trial after numerous 

continuances).” (Id. at p. 1110.) Although the defendant had several earlier 

opportunities to request self-representation, the court explained, he failed to state any 

cause for his delay. (Id. at pp. 1110-1111.) And in People v. Frierson (1991) 53 Cal.3d 

730, the defendant had moved to represent himself at his complex trial, set to begin just a 

few days later. The denial of his request was upheld on the ground that it was not made 

within a “„“reasonable time prior to the commencement of trial,”‟” where the record 

showed that the trial court had “thoroughly investigated the quality of counsel‟s 

representation, the reasons for the request, and the expected delay.” (Id. at p. 742; see 

also People v. Williams (1990) 220 Cal.App.3d 1165, 1170 [denial of self-representation 

motion upheld on ground that record showed that defendant “was playing the „Faretta

game‟”].)

Respondent relies on People v. Jackson (2009) 45 Cal.4th 662, in which the court 

repeated its observation that “[t]his court never has „establish[ed] a hard and fast rule that 

any motion made before trial—no matter how soon before—was timely.‟” (Id. at p. 689, 

citing People v. Burton, supra, 48 Cal.3d at pp. 853-854, & fn. 2.) In People v. Burton, 

the court had noted—but declined to adopt—the rule stated in many federal cases, “that a 

motion for self-representation is normally timely as a matter of law if made before the 
12

jury is impaneled, so that the motion must be granted unless it is shown that the motion is 

made for the purpose of delay.”7 (48 Cal.3d at p. 853.) However the Burton court‟s 

reason for California‟s rejection of that rule is instructive: “The federal rule, though it 

calls motions timely until the jury is impaneled, may in practice differ little from our own 

rule,” because under the federal rule, even a timely self-representation motion may be 

denied in the court‟s discretion “if the court finds the motion is made for the purpose of 

delay.” (Id. at p. 854.) The Burton court found that “[t]his differs little as a practical 

matter from the standard we set out in Windham . . . except that we place the burden on 

the defendant to explain his delay when he makes the motion as late as defendant did 

here.” (Ibid.)

The Windham court looked beyond any bright-line measure of when trial begins to 

determine the timeliness of a self-representation request, however, it explicitly warned 

that the rule requiring a timely request for self-representation should not be invoked 

without justification. The timeliness rule “should not be and, indeed, must not be used as 

a means of limiting a defendant‟s constitutional right of self-representation.” (19 Cal.3d 

at p. 128, fn. 5.) The rule‟s only intention is “that a defendant should not be allowed to 

misuse the Faretta mandate as a means to unjustifiably delay a scheduled trial or to 

obstruct the orderly administration of justice.” (Ibid.) Whether a self-representation 

request should be granted therefore is a matter of trial court discretion when, for example, 

a defendant has waited “until the day preceding trial before he moves to represent himself 

and requests a continuance in order to prepare for trial.” But when the lateness of the 

request and the necessity of a continuance can be reasonably justified, “the request should 

be granted.” (Id. at p. 128 & fn. 5, italics added.)

 

 

7 See, e.g., Armant v. Marquez (9th Cir. 1985) 772 F.2d 552, 555; Fritz v. Spalding (9th 

Cir. 1982) 682 F.2d 782, 784; Maxwell v. Sumner (9th Cir. 1982) 673 F.2d 1031, 1036;

Chapman v. United States (5th Cir. 1977) 553 F.2d 886, 894; United States v. Dougherty

(D.C. Cir. 1972) 473 F.2d 1113, 1124; United States ex rel. Maldonado v. Denno (2d Cir. 

1965) 348 F.2d 12, 16. 
13

In this case Davis requested no continuance, and nothing in the record indicates 

that granting her self-representation request would have entailed any significant delay. 

On Wednesday, February 22, the court called the case for trial, with an estimate of seven 

days of trial (afternoons only), and ordered a jury panel for the next day. The next day, 

Thursday February 23, the trial court arraigned Davis on an amended information that 

changed the identity of the victim of the alleged crime, to which Davis pleaded not guilty. 

During the morning session the court denied, as untimely, Davis‟ motion to continue the 

trial in order to hire private counsel. It also denied motions under Penal Code section 995 

to reduce the charge to a misdemeanor, and to exclude the audio record of the 

conversation between Davis and Batres.

Jury selection began Thursday afternoon at 2:00. At 4:15 p.m. the jury panel was 

excused and told to return on the afternoon of Friday, February 24, at 1:30 p.m.

On Friday afternoon, February 24, before jury selection resumed, Davis‟s counsel 

informed the court of Davis‟s request to represent herself in pro. per. She did not request 

any continuance of the trial, and she explained to the court how the matter could be 

handled without any delay.8 The trial court denied her request as untimely, without 

“making legal findings on anything at this point other than the timeliness of the request 

. . . .”

After the court had denied her self-representation request, Davis suggested to the 

court that her request was timely because the jury had not yet been impaneled. The court 

responded that the absence of a timeliness requirement “would open the door to all kinds 

of switches at all kinds of awkward times.” But the court did not address Davis‟s 

contention that her request was in fact timely, because the jury was not yet impaneled. 

Nor did the court indicate why granting her request would be awkward under the 

circumstances of her case, or inquire whether any delay would be necessary. 

 

 

8 Advising the court of Davis‟s self-representation request, her counsel noted that the 

case was not complicated, and would involve at most just three witnesses. Her counsel 

suggested that she could complete the jury voir dire that same afternoon—Friday—and 

that Davis would be ready to take over on Monday.
14

Less than an hour later 12 jurors were sworn and were ordered to return for trial 

Monday afternoon. Two alternate jurors were selected and sworn on the morning of 

Monday, February 27. Opening statements began on Monday afternoon.

Nothing in the record suggests that granting Davis‟s self-representation request 

would have delayed the trial or resulted in any obstruction of the administration of 

justice; the record actually indicates that no delay would have resulted. When the court 

denied Davis‟s self-representation request that Friday afternoon, it told the prospective 

jurors that “[w]e will finish picking a jury and then get you folks on the way and get an 

early jump on traffic.” Without any delay in the proceedings, opening statements were 

thus set to begin the following Monday afternoon—the same time that Davis had told the 

court she would be ready to defend herself.

Moreover, in denying the request the court disclaimed reliance on any factor other 

than the request‟s untimeliness. It denied Davis‟s self-representation request on the sole 

ground that jury selection had begun. It declined even to consider the concerns—delay or 

obstruction of the orderly administration of justice—that Windham identified as factors 

that could justify denial of a self-representation request. (19 Cal.4th at p. 128, fn. 5.) In 

other words, the trial court used timeliness as “a means of limiting [Davis‟s] 

constitutional right of self-representation”—exactly what Windham warned that it cannot 

do. (Ibid.)

In People v. Nicholson, supra, 24 Cal.App.4th 584, the defendant‟s selfrepresentation request was made on the date set for trial. The court nevertheless held that 

“where self-representation is requested for a legitimate reason, where there is no request 

for a continuance and where there is no reason to believe there would be any delay or 

disruption, the trial court‟s denial of a Faretta motion is an abuse of discretion.” (Id. at 

p. 593; see People v. Herrera (1980) 104 Cal.App.3d 167, 174 [“To hold that a motion 

for self-representation made by a defendant at his earliest opportunity is untimely when 

that „earliest opportunity‟ appears to be shortly before trial, would effectively thwart 

defendant‟s constitutional right to proceed in propria persona.”].)
15

On this record it therefore is clear that the denial of Davis‟s self-representation 

request cannot be validated solely by the trial court‟s conclusion that the request was 

untimely. While no case holds that a request made during jury selection is necessarily 

timely, neither does any authority support the proposition that the request was necessarily 

untimely, without regard to any other consideration. Thus even accepting the trial court‟s 

conclusion that the self-representation request came too late to require that it be granted, 

in exercising its discretion to determine whether to grant the request the trial court was 

required to consider factors other than just the timing of the request.

2. The Trial Court Failed To Exercise Its Discretion To Determine Davis’s 

Self-Representation Request Upon The Factors Identified By Windham. 

Once a trial has commenced, it is “within the sound discretion of the trial court to 

determine whether such a defendant may dismiss counsel and proceed pro se.” 

(Windham, supra, 19 Cal.3d at pp. 124, 129.) But untimeliness is just one factor to be 

considered; untimeliness alone cannot be used to deny self-representation, without regard 

to other factors. When the lateness of the request and any resulting need for delay can be 

reasonably justified, “the request should be granted.” (Id. at p. 128, fn. 5, italics added.)9

We do not hold that the trial court would have lacked discretion to deny Davis‟s 

self-representation request, had its discretion been exercised. But it is not clear that 

denial of the motion would have been a foregone conclusion if the court had exercised its 

discretion after considering the appropriate factors. The record shows no hint that 

Davis‟s self-representation request was motivated by a desire or expectation that it would 

delay her trial or unduly burden the administration of justice, and the trial court declined 

to consider whether it would. When she made her self-representation request, only a 

 

 

9

In People v. Tyner (1977) 76 Cal.App.3d 352, 355, the defendant‟s self-representation 

motion was made and denied after the case was called for trial. His robbery conviction 

nevertheless was reversed, because his motion came before the jury was impaneled, and 

had not been accompanied by any request for a continuance. Granting the motion 

therefore would not have obstructed the orderly administration of justice, making the 

defendant‟s right of self-representation “unconditional.” Respondent‟s brief does not 

address the opening brief‟s reliance on this decision.
16

matter of weeks, and a few appearances, had passed since the appointment of the 

alternate public defender as her counsel.10 Her counsel noted (without dispute) that the 

trial would be short, that the factual and legal issues were uncomplicated, that Davis was 

educated and capable of defending herself, and that no delay would be necessary. And 

Davis‟s own explanation to the court demonstrated some genuine understanding of the 

law on her part.

However, we need not determine whether the court would have been justified in 

denying Davis‟s self-representation request after considering these factors, because it did 

not consider them. Although there is no requirement that the trial court explicitly cite the 

Windham factors or state its reasons for denying an untimely self-representation request 

(Windham, supra, 19 Cal.3d at p. 129, fn. 6; People v. Bradford (2010) 187 Cal.App.4th 

1345, 1354), the record must reflect some substantial support for an inference that the 

trial court “had those factors in mind when it ruled.” (People v. Bradford, supra, 187 

Cal.App.4th at p. 1354; People v. Scott (2001) 91 Cal.App.4th 1197, 1206.) Here, the 

trial court‟s express disclaimer foreclosed any such inference. As it stated for the record, 

“I‟m not making any legal findings on anything at this point other than the timeliness of 

the request . . . .”

Even if the request could be considered untimely because jury selection had 

commenced, the court was nevertheless required to consider the factors identified in 

Windham before exercising its discretion to deny Davis‟s request. (19 Cal.3d at pp. 128-

129 [“Having established a record based on such relevant considerations, the court should 

then exercise its discretion and rule on the defendant‟s request.”].) The trial court 

therefore erred by declining to consider the factors upon which its discretion to determine 

whether Davis‟s self-representation request—even if untimely—must be based. 

 

 

10 Davis was first represented by Alternate Public Defender Gregoire Williams at the 

January 30, 2012 pretrial hearing.
17

3. The Court’s Failure To Exercise Its Discretion Cannot Be Dismissed As 

Harmless.

In Windham, supra, our Supreme Court found it “unnecessary to determine by 

what standard of reversible error the erroneous denial of a Faretta motion should be 

judged.” (19 Cal.3d at p. 131, fn. 7.) Subsequent cases have indicated that denial of a 

timely self-representation request is reversible per se. (People v. Joseph (1983) 34 Cal.3d 

936, 948; People v. Tyner, supra, 76 Cal.App.3d 352, 356 [“Adoption of any other 

standard would tend to eviscerate the Faretta holding”].) But the erroneous denial of a 

Faretta motion that is untimely is reviewed under the harmless error test of People v. 

Watson (1956) 46 Cal.2d 818, 836—whether it is “reasonably probable” that a result 

more favorable to the appellant would have been reached in the absence of the error. 

(People v. Rivers (1993) 20 Cal.App.4th 1040, 1050.) This is because “the denial of a 

pretrial motion is a matter of constitutional magnitude, whereas the denial of a midtrial 

motion is not.” (People v. Nicholson, supra, 24 Cal.App.4th at p. 591; People v. Bloom

(1989) 48 Cal.3d 1194, 1220; see Cal. Const. art. VI, § 13.)

In People v. Nicholson, as in this case, the self-representation request had been 

made after the case had been called for trial, but before the jury was sworn—a time that 

might or might not be considered to be “before the commencement of trial” within the 

meaning of Windham. (People v. Nicholson, supra, 24 Cal.App.4th at p. 591.)11 And as 

in this case, the self-representation request was made soon after the appointment of 

defense counsel; it was not part of a pattern of delay or disruption of the proceedings; no 

delay of the trial was requested, and nothing in the record indicated a delay would be 

necessary. (Id. at p. 592.) On this record it is not at all clear that the trial court would 

have been justified in exercising its discretion to deny Davis‟s self-representation request, 

even if it had considered the relevant factors on their merits. (People v. Tyner, supra, 76 

 

 

11 Trial commences, at least for double-jeopardy purposes, when the jury is sworn. 

(People v. Rogers (1995), 37 Cal.App.4th 1053, 1057, fn. 3; People v. Gephart (1979) 93 

Cal.App.3d 989, 998.)
18

Cal.App.3d 352, 354-355 [self-representation motion made on first day of trial, but 

before jury was impaneled, should have been granted as timely].)12

However, even if we were to conclude that Davis‟s self-representation request was 

untimely as a matter of law (which we decline to do, as discussed above), still we cannot 

conclude that no prejudice resulted from the trial court‟s failure to examine the factors 

that should control its exercise of discretion, and to exercise its discretion based on those 

factors. Although it is rare that an untrained defendant might have been able to prevail 

before the jury, while her experienced and admittedly competent attorney could not, we 

so conclude in this case.

Davis‟s defense had little to do with proof of disputed facts. The events 

supporting the charge against Davis were virtually undisputed; it was primarily Davis‟s 

intent that was in dispute. Davis was charged with attempting to dissuade a witness to a 

crime from causing the crime to be prosecuted. (Pen. Code, § 136.1, subd. (b)(2).) The 

entire conversation in which she was found to have done so was presented to the jury in 

both a 20-minute audio recording and a written transcript of that recording. The case had 

no complex legal or evidentiary issues. Davis‟s defense rested instead almost wholly on 

persuading the jury of her lack of criminal intent in speaking with Aridai, saying what she 

undeniably said in the audio recording of that conversation.

Davis‟s statements were unquestionably sufficient to justify the charge of 

attempting to dissuade a witness, and to support the verdict against her; her appeal does 

not contend otherwise. But she also tried to offer explanations for much of her 

conversation with Aridai, which— if her good intentions were credited and she were 

 

 

12 In People v. Nicholson, the court observed that when that case was decided “[e]very 

case upholding a discretionary denial of a Faretta motion involve[d] a request for a 

continuance (or some other delaying tactic) or a demonstrated proclivity to substitute 

counsel or both” (24 Cal.App.4th at pp. 592-593, & fn. 5); and the only reported 

decisions in which Faretta motions had been denied when the defendants were ready to 

proceed without a continuance had resulted in reversals. (Id. at p. 593.) We believe that 

this observation remains true.
19

afforded the benefit of many doubts—might have persuaded a sympathetic jury to see a 

picture somewhat different from that painted by the prosecution.

She apparently wanted to persuade the jury that she had gone to talk to Aridai (or 

any other adult in the family) out of concern not only for Alcala, but also to warn the 

Mendez family that the supposed robbery with which Alcala was charged—in which 

Lilibeth and Joselyn were the supposed victims—was not a robbery at all but arose from 

the girls‟ efforts to get drugs from Alcala. She sought to warn Aridai that she felt 

compelled to advise Detective Batres of those facts, and to warn her of the impact on her 

family once her younger sister‟s involvement with drugs became known. It is true—as 

the prosecution argued effectively to the jury—that crediting Davis‟s story would not 

wholly negate the elements of the offense with which she was charged. However it might 

have negated the specific intent that the jury was required to find—and did find—she had 

when she spoke to Aridai.

If the trial court had properly exercised its discretion, it could have determined 

whether Davis should be permitted to present her theory of the facts to the jury 

personally, not just through her testimony but also personally through her argument to the 

jury. We cannot know with certainty whether she would have been entitled to that 

opportunity if the court had properly exercised its discretion, nor whether she might have 

persuaded the jury that her intent was not criminal had she had that opportunity. 

However, on this record we cannot conclude that she would not.

CONCLUSION

A new trial is required. We therefore do not reach Davis‟s other claims of error.
20

DISPOSITION

The judgment is reversed.

NOT TO BE PUBLISHED

.

CHANEY, J.

We concur:

ROTHSCHILD, Acting P. J.

JOHNSON, J.