Request to Change From Self-representation to Counsel-representation
In People v. Elliott (1977) 70 Cal. App. 3d 984, the court considered the defendant's contention the trial court had erred in denying his request to withdraw his waiver of counsel after jury selection (id. at p. 991), and described the question as whether the defendant has "any right, after a trial has started, to relinquish his constitutional right of self-representation and assert his constitutional right to be represented by counsel?" (Id. at p. 992.)
Answering that question, the Elliott court stated, "It would seem clear that the pre-Faretta principle, applied in California, that once defendant has started to represent himself, he has no absolute right to change his mind and obtain representation by counsel , is no longer tenable." (Ibid.)
The court then articulated relevant factors that should be "considered by the trial court in order for it to exercise a meaningful discretion in ruling on defendant's request to change from self-representation to counsel-representation," including "(1) defendant's prior history in the substitution of counsel and in the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendant's effectiveness in defending against the charges if required to continue to act as his own attorney." (Id. at pp. 993-994.)
These factors were derived from People v. Windham (1977) 19 Cal.3d 121, 128 in which the California Supreme Court set forth factors the trial court should consider when confronted with a midtrial request by a defendant to waive the right to counsel and invoke the right to self-representation. Subsequent to Elliott, the Supreme Court approved use of the Windham factors when a self-represented defendant attempts midtrial to withdraw a Faretta waiver and obtain appointed counsel, but added the trial court must also "consider the totality of the circumstances in exercising its discretion." (People v. Lawley (2002) 27 Cal.4th 102, 149; see People v. Gallego, supra, 52 Cal.3d at p. 164.)
" 'As in Windham, a trial judge must establish a record based upon the relevant factors involved and then exercise his discretion and rule on defendant's request for a change from self-representation to counsel-representation.' " (Gallego, at p. 164, quoting Elliott, supra, 70 Cal. App. 3d at p. 994.)
The Supreme Court in People v. Windham, supra, 19 Cal.3d at page 131, footnote 7, explained it was "expressing no opinion as to the rules applicable when a defendant initially waives counsel, proceeds to trial pro se, and then seeks to withdraw his waiver in order that an attorney may be appointed to represent him."
A defendant may knowingly and voluntarily waive his or her right to counsel, invoke the parallel, but mutually exclusive right to self-representation, and thereafter realize the folly of that decision. There is nothing like a short stint of self-representation to dampen the hubris of a defendant who may not truly appreciate the dangers and disadvantages of self-representation when advised of them as part of a Faretta waiver.
Nevertheless, a competent defendant who chooses to waive his or her right to counsel and pursue self-representation after being fully advised of the consequences must not be permitted to obstruct the fair and orderly administration of justice by later demanding counsel when it appears advantageous to do so. (See, e.g., Menefield v. Borg (9th Cir. 1989) 881 F.2d 696, 700 "there are times when the criminal justice system would be poorly served by allowing the defendant to reverse his course at the last minute and insist upon representation by counsel".)