Appealing a Drug Conviction for Failure to Rule on Faretta Motion

In People v. Kenner (1990) 223 Cal. App. 3d 56, defendant appealed his drug conviction, arguing the trial court's failure to rule on his Faretta motion constituted reversible error. It was undisputed that defendant made a timely and unequivocal Faretta motion after his motion for new counsel was denied. (Kenner, supra, 223 Cal. App. 3d at p. 58.) The trial court set the matter for hearing, but the hearing was continued several times as a result of defendant's custody status. When defendant finally appeared at a hearing, his counsel indicated to the court that the pending motion could be reserved until the next pretrial hearing. Defendant made no mention of his Faretta motion then or at any of the subsequent hearings which he attended. 'The matter was never mentioned again until his opening brief was filed' in the appellate court. (Id. at p. 59.)" (People v. Skaggs (1996) 44 Cal.App.4th 1, 8 (Skaggs).) Based on this record, the Kenner court held that "where appellant had both time and opportunity to follow up on his request for a hearing on his Faretta motion, and failed to do so, he must be deemed to have abandoned or withdrawn that motion." (Kenner, supra, at p. 62.) Citing Kenner, the Court of Appeal in People v. Skaggs (1996) 44 Cal.App.4th 1 recited two practical justifications for finding waiver of the ruling on a Faretta motion based on defendant's conduct. "First, it discourages gamesmanship by preventing a defendant who realizes that his Faretta request has not been addressed from saving his 'Faretta ace to play triumphantly on appeal.' (Kenner, supra, 223 Cal. App. 3d at p. 62.) Second, it recognizes that 'defendants who sincerely seek to represent themselves have a responsibility to speak up. The world of the trial court is busy and hectic, and it is to be expected that occasionally a court may omit to rule on a motion. When that happens, . . . it is reasonable to require the defendant who wants to take on the task of self-representation to remind the court of the pending motion.' (Ibid.)" (Skaggs, supra, 44 Cal.App.4th at p. 8.)