Stanford Law School - Robert Crown Law Library

Filed 4/10/03

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S024645
v.
OMAR DENT III,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. A925100

A jury found defendant Omar Dent III guilty of the first degree murder of
Byung Kim (Pen. Code,1 §§ 187, subd. (a), 189), the second degree robbery of
Kim (§ 211), kidnapping for robbery of Kim (§ 209, subd. (b)), the attempted
murder of August Cardino (§§ 664, 187, subd. (a), 189), and the attempted second
degree robbery of Cardino (§§ 664, 211). The jury also found defendant had
personally used a firearm for all five crimes, and as to the crimes against Cardino,
had intentionally and personally inflicted great bodily injury on Cardino
(§§ 12022.5, 12022.7). The jury further found true the special circumstance
allegation of murder during the commission of robbery. (§ 190.2, subd. (a)(17).)
Defendant was sentenced to death.
The case is before us on defendant’s automatic appeal. (Cal. Const., art.
VI, § 11; Pen. Code, § 1239, subd. (b).) For the reasons that follow, we reverse

1
All statutory references are to the Penal Code.
1

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the judgment under compulsion of Faretta v. California (1975) 422 U.S. 806
(Faretta).
DISCUSSION
Factual Background
On or about August 25, 1988, Mr. Halvor Miller and Mr. Charles Maple were
appointed to represent defendant. Mr. Miller was lead counsel, Mr. Maple
associate counsel.
Defendant’s trial was ultimately scheduled to begin on March 6, 1991. At
9:50 a.m. on that day, neither defense counsel had appeared. Judge Flynn, who
was presiding over a different death penalty trial in which Mr. Miller was
appearing, had contacted the court the night before, and the court had agreed,
pending consultation with defendant, to “go with the one attorney,” Mr. Maple.
At 10:30 a.m., Mr. Maple had still not appeared. Defendant was present.
The trial judge delineated the history of defense counsel’s requests for
continuances and failure to appear on the record. The court stated his clerk had
spoken to Mr. Maple’s office at 10:25 a.m., and was told he was just leaving his
office in Pasadena; the court did not anticipate his arrival for at least an hour.
“[W]e have a jury panel of 260 people out in the hallway here, waiting to start this
case now.” The court then listed the charges in the information, and told
defendant, “These are all very, very serious charges. And I think that you should
definitely have attorneys here to represent you that have the time to spend on a
case. I think Mr. Maple and Mr. Miller have done an excellent job on this case up
to this point, but it has now become clear and apparent to this court that they are
just simply too busy to pay attention to your case and to give your case the
attention that it deserves. . . . This is your case. I am very concerned about your
case, Mr. Dent. I am very concerned with you getting all of your constitutional
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rights. The court is very concerned primarily with you getting a fair trial. The
court is concerned with having you properly represented by counsel at all stages of
the proceedings which you are absolutely entitled to. It is now 25 minutes before
11:00 o’clock. I think it would be unfair to the taxpayers of Los Angeles County
to continue to hold this jury panel out here any further. So what I am going to do
is I am going to continue this case.” The trial court then relieved Mr. Miller and
Mr. Maple as counsel of record. “You must be represented by attorneys that are
senior trial attorneys. And you have got to have people here to represent you.
You cannot represent yourself in this matter. So that’s what I want to do and those
are the reasons that I am doing it. And these attorneys are hereby relieved as of
this time.”
Defendant then said, “May I say something, your honor?” The court said,
“Mr. Dent, because of the gravity of this case, let me get some attorneys in here to
talk to you and I will have the attorneys talk to you because I don’t want you to
say anything to me that will incriminate you in any way.” The court excused the
jury panel.
At 11:05 a.m., there were further proceedings. Mr. Maple, who indicated
he had mistakenly thought the time to appear was 11:00, was now present. The
trial judge reiterated the procedural history of continuances and failures to appear.
He then informed Mr. Maple the jury panel had been excused, he was continuing
the case, and that he was relieving current defense counsel.
Defendant conferred with Mr. Maple. Mr. Maple then indicated he was
ready to proceed with the trial; it was not clear when Mr. Miller would be. The
trial court thanked the attorneys for their work, and said, “We just have to move
on here.”
At this point the following colloquy occurred. Mr. Maple said, “Mr. Dent
has expressed concerns to me about replacing both counsel. He feels that it will
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take an inordinate length of time to prepare the case with two completely new
lawyers in the case.” The trial court subsequently responded, “They are senior
trial attorneys that know the legal profession and are very versed in the rules of
evidence and so forth. . . . This case has been continued so many times that we just
can’t --” Mr. Maple said, “I don’t quarrel with any of the continuances . . . . As I
say I am ready. Mr. Dent wishes me to proceed. That is the wish that he
expressed to me just now.” The court said, “All right.” Mr. Maple said, “In the
alternative he would consent to the appointment of one other counsel in place of
Mr. Miller, as I understand it; is that--” Defendant said, “That’s correct.” Mr.
Maple said, “The other alternative that he proposes to the court is that he proceed
in pro. per. He thinks he would be more inclined to get a fair trial that way than he
would with--” The trial judge interrupted, “I am not going to let him proceed pro.
per.” Mr. Maple continued, “—Than he would with counsel.” The court said,
“Not in a death penalty murder trial.” Mr. Maple said, “I have cautioned him
about that myself. He has just expressed that view to me this morning and he had
never expressed that view to either Mr. Miller to my knowledge or never to
myself. Is that not true, Mr. Dent?” Defendant said, “I ain’t never expressed it.
But if I receive two new counsel, I would like to go pro. per.” The trial judge said,
“Anything further, Mr. Maple?” Mr. Maple said, “That’s all I have, your honor.”
The court said, “Okay. Thank you, Mr. Maple. You are relieved as counsel of
record in this case.” Former defense counsel were ordered to turn over their files,
an afternoon hearing was scheduled in the case, the court declined to order an
expedited transcript of the morning’s proceedings, and the proceedings were
adjourned. New defense counsel were appointed that afternoon. Defendant did
not subsequently renew his Faretta motion.
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Analysis
When “a motion to proceed pro se is timely 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. Furthermore, the defendant’s ‘technical legal knowledge’ is
irrelevant to the court’s assessment of the defendant’s knowing exercise of the
right to defend himself.” (People v. Windham (1977) 19 Cal.3d 121, 128
(Windham), quoting Faretta, supra, 422 U.S. at p. 836.) Erroneous denial of a
Faretta motion is reversible per se. (McKaskle v. Wiggins (1984) 465 U.S. 168,
177, fn. 8.)
When confronted with a request to proceed in propria persona, a trial court
must make the defendant “aware of the dangers and disadvantages of self-
representation, so that the record will establish that ‘he knows what he is doing
and his choice is made with eyes open.’ ” (Faretta, supra, 422 U.S. at p. 835.)
Unlike the right to representation by counsel, “ ‘[T]he right of self-representation
is waived unless defendants articulately and unmistakably demand to proceed pro
se.’ ” (People v. Marshall (1997) 15 Cal.4th 1, 21 (Marshall); id. at p. 23 [“[T]he
court should draw every reasonable inference against waiver of the right to
counsel”]; see Brewer v. Williams (1977) 430 U.S. 387, 391, 404 [“courts indulge
in every reasonable presumption against waiver” of the postarraignment right to
counsel].) In determining on appeal whether the defendant invoked the right to
self-representation, we examine the entire record de novo. (See Marshall, at pp.
24-25.)
The Attorney General argues defendant never made a request to represent
himself within the meaning of Faretta because the suggestion he proceed in
propria persona was “impulsive, ambivalent, and prospective, and therefore
equivocal.” Faretta’s emphasis “on the defendant’s knowing, voluntary,
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unequivocal, and competent invocation of the right suggests that an insincere
request or one made under the cloud of emotion may be denied.” (Marshall,
supra, 15 Cal.4th at p. 21; People v. Barnett (1998) 17 Cal.4th 1044, 1087-1088.)
Here, it is apparent the trial court denied the request to proceed in propria
persona on an improper basis, i.e., because it was “a death penalty murder trial.”
In People v. Joseph (1983) 34 Cal.3d 936, 939, five months prior to trial, counsel
sought to be relieved, and the defendant sought to represent himself. The trial
court relieved counsel, denied the Faretta motion, and appointed new counsel.
(Id. at pp. 941-943.) “ ‘The court feels, because of the nature of the charge, you
are not able to represent yourself adequately . . . . [¶] . . . Your request to go pro.
per., because this is a capital case, is denied.’ ” (Id. at p. 942.) This court reversed
the death judgment (id. at pp. 939, 948), stating “the nature of the charge is
irrelevant to the decision to grant or deny a timely proffered Faretta motion.” (Id.
at p. 945; People v. Hardy (1992) 2 Cal.4th 86, 196 [“Faretta motion cannot be
denied because of the seriousness of the charge”].)
Even though the trial court denied the request for an improper reason, if the
record as a whole establishes defendant’s request was nonetheless properly denied
on other grounds, we would uphold the trial court’s ruling. After reviewing the
record, we are unable to reach that conclusion.
Arguably, defendant’s request to proceed in propria persona was not
equivocal. Counsel said that if the court was not inclined to allow defendant to
retain either both or one of his current counsel, “[t]he other alternative that he
proposes to the court is that he proceed in pro. per. He thinks he would be more
inclined to get a fair trial that way than he would with . . . counsel.” (People
v. Michaels (2002) 28 Cal.4th 486, 524 [“nothing equivocal in a request that
counsel be removed and, if not removed, that the defendant wants to represent
himself”].) Moreover, the trial court, who was in a position to view defendant’s
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demeanor, appears to have treated the request to proceed in propria persona not as
equivocal but serious, and emphatically denied it.
We need not decide this issue, however, because whether or not defendant’s
request was equivocal, the trial court’s response was not only legally erroneous
but unequivocal, and foreclosed any realistic possibility defendant would perceive
self-representation as an available option. Thus, even assuming defendant’s
request was equivocal, the trial court’s response effectively prevented defendant
from making his invocation unequivocal.
In response to the request, the court stated, “I am not going to let him
proceed pro. per. . . . Not in a death penalty murder trial.” When defendant then
repeated the request in the context of confirming to his trial counsel he had not
previously raised the possibility of proceeding in propria persona, the trial court
ignored his remark, briefly discussed logistical details, and adjourned the
proceedings. Moreover, earlier that morning the trial judge had stated to
defendant he could not represent himself; when he then mentioned he was
removing defendant’s counsel, he declined to let defendant speak. While the trial
judge was concerned defendant might make an incriminating statement, the
court’s instruction to not speak, combined with the court’s subsequent categorical
denial of the Faretta request, may well have convinced defendant the self-
representation option was simply unavailable, and making the request again would
be futile. Hence, this case is unlike those relied on by the Attorney General in
which failure to renew a Faretta motion was held to be evidence of equivocation.
(Reese v. Nix (8th Cir. 1991) 942 F.2d 1276, 1280-1281; Jackson v. Ylst (9th Cir.
1990) 921 F.2d 882, 888-889.) We do not require trained counsel to repeatedly
make a motion that has been categorically denied; how much more should we
require of an untrained defendant seeking self-representation. (See Orazio v.
Dugger (11th Cir. 1989) 876 F.2d 1508, 1512 [“To avoid a waiver of a previously-
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invoked right to self-representation, a defendant is not required continually to
renew a request once it is conclusively denied or to ‘make fruitless motions or
forego cooperation with defense counsel in order to preserve the issue on
appeal’ ”].)
Similarly, the Attorney General argues defendant’s words, “[I]f I receive
two new counsel, I would like to go pro. per.,” indicate “the third of his three
alternative suggestions was conditional and prospective in nature, i.e., that if and
when the court appointed new counsel for him, he would then move to represent
himself. Given that, upon actually meeting with his newly appointed counsel,
[defendant] did not so move, but instead elected to accept and enjoy their
representation throughout all phases of trial and sentencing,” defendant “can fairly
be held to have abandoned his conditional and prospective suggestion.”
As noted above, this “conditional” statement was made in response to
counsel’s inquiry as to whether defendant had previously raised the possibility of
proceeding in propria persona. Counsel did not think defendant had, and asked
defendant if this was correct. Thus, defendant’s statement appears to be more of
an affirmation of counsel’s representation he had not previously raised the
possibility of proceeding in propria persona rather than an assertion he was going
to make a Faretta motion in the future. Arguably, his choice of the word “would”
in isolation suggests a prospective intent. However, viewed in context, defendant
appears to have been simply confirming counsel had correctly conveyed to the
court the request defendant had earlier communicated to counsel. While defendant
still may have desired in propria persona status, and perhaps for that reason chose
the word “would,” it was a request any reasonable person in the court room would
recognize had already been denied and the matter closed. Thus, his statement was
not a motion, prospective or otherwise.
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Moreover, even if defendant was making a prospective and conditional
statement, it is unlikely defendant would realistically feel the option of in propria
persona status was available. Again, it must be remembered that only moments
before, the trial court had categorically denied defendant’s request. In addition,
following the statement, the court made no response but spoke only to counsel
regarding other topics and almost immediately thereafter adjourned the
proceedings. Under these circumstances, it is less probative than in other cases
that defendant failed to renew his motion upon meeting his new counsel.
Had the trial court engaged in any inquiry into defendant’s request, as
required by Faretta, the record as to whether the request was merely impulsive, as
the Attorney General argues, would be clearer. The limited record indicates
defendant’s request was motivated by the trial court’s sua sponte removal of
counsel defendant had worked with for two and a half years and wished to retain.
To this extent, the request was no doubt based in part on emotion. Nonetheless,
defendant also expressed concern about the “inordinate” delay inherent in
appointing new counsel. This reasoning suggests a practical and not entirely
emotional response. Moreover, Mr. Maple informed the court he had “cautioned”
defendant about self-representation in a capital case. This suggests defendant
made the request to proceed in propria persona with at least some awareness of the
disadvantages of such status. Nor is there any evidence defendant asserted the
right of self-representation as a “vehicle for manipulation and abuse.” (Marshall,
supra, 15 Cal.4th at p. 22.)
The Attorney General argues that defendant’s response to the trial court’s
inquiry later on March 6, 1991, demonstrates the request to proceed in propria
persona was merely emotional. During the afternoon of March 6, new counsel
were appointed for defendant. At the beginning of this hearing, the trial court
inquired, “How are you doing, Mr. Dent?” Defendant replied, “Fine,” and the
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hearing commenced. At the end of the hearing, the court asked, “Mr. Dent,
everything okay with you? Are you getting your showers okay and getting your
medication? Everything okay?” Defendant replied, “Yes, your honor.” The court
said, “If you need anything, you tell these attorneys and they will tell me and I will
be sure you get it.” Nothing in these inquiries suggests the trial court was inviting
defendant to renew the Faretta request the court had earlier categorically denied.
For all of these reasons, we conclude that whether or not defendant’s
request to proceed in propria persona was equivocal, the trial court’s response
foreclosed any realistic possibility defendant would view self-representation as an
available option. The Attorney General further contends, however, that even if
defendant’s request was clear and unequivocal, it was untimely. As noted earlier,
“when a motion to proceed pro se is timely interposed, a trial court must permit a
defendant to represent himself upon ascertaining that he has voluntarily and
intelligently elected to do so.” (Windham, supra, 19 Cal.3d at p. 128.) “However,
once a defendant has chosen to proceed to trial represented by counsel,” a motion
for self-representation is addressed to the “sound discretion of the court.” (Ibid.)
Here, the trial court stated at least twice prior to the Faretta motion that the
trial would be continued because it was sua sponte relieving current counsel and
appointing new counsel. Hence, since no trial was imminent, and did not in fact
occur for over four months, the motion appears timely. The Attorney General’s
reliance on Marshall, supra, 15 Cal.4th 1 and People v. Clark (1992) 3 Cal.4th 41
is misplaced. Marshall merely states a trial court’s determination that a Faretta
“motion is untimely does not become erroneous simply because, for example, an
imminent trial ultimately is postponed.” (Marshall, at pp. 24-25, fn. 2.) That is
not the situation here. Indeed, defendant’s motivation for suggesting in propria
persona status was to expedite the proceedings, and avoid the delay inherent in the
appointment of entirely new counsel. In Clark, we concluded the Faretta motion
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was made “in effect [on] the eve of trial” because the case was being continued on
a day-to-day basis in the expectation jury selection would begin at any time.
(Clark, at pp. 99-100.) Again, that is not the situation here. Moreover, the
precipitating cause of the Faretta motion, the trial court’s sua sponte removal of
counsel and announced intention to appoint new counsel, had only happened
earlier the same morning the Faretta motion was made.
“It is undeniable that in most criminal prosecutions defendants could better
defend with counsel’s guidance than by their own unskilled efforts.” (Faretta,
supra, 422 U.S. at p. 834; see Decker, The Sixth Amendment Right to Shoot
Oneself in the Foot: An Assessment of the Guarantee of Self-Representation
Twenty Years after Faretta (1996) 6 Seton Hall Const. L.J. 483, 489-490.)
Moreover, the evidence against defendant was overwhelming, and our review of
the record indicates defendant was vigorously and adequately represented, and
received a fair trial.
Nevertheless, it is apparent the trial court denied the self-representation
request because of the court’s erroneous understanding of the law, not because the
request was equivocal or untimely.2 Nor, for the reasons above, does our
independent review of the record enable us to conclude the request was otherwise
properly denied either because it was equivocal or untimely. Under these

2
The prosecution bears some of the responsibility for this reversal.
Prosecutors should always be acutely aware that violation of the right of self-
representation is reversible per se. If for no other purpose than to avoid
conducting a trial that is doomed, if it results in a conviction, to appellate reversal
before it even begins, the prosecution should try to prevent such a violation. Here,
the prosecutor could have easily, during either the hearing or the four months
before trial began, prompted the trial court to inform defendant of his nearly
absolute right at this point in the proceedings to represent himself.
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circumstances, and under compulsion of Faretta, we reverse the judgment.
Hence, it is unnecessary to reach defendant’s other claims.
DISPOSITION
The judgment is reversed, and the case remanded to the trial court for further
proceedings consistent with this opinion.
BROWN, J.
WE CONCUR:

GEORGE,
C.J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
MORENO,
J.
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CONCURRING OPINION BY CHIN, J.
I concur but only under compulsion of Faretta v. California (1975) 422
U.S. 806 (Faretta) and its progeny. Subject to review of his other contentions, it
appears defendant received a fair trial. His guilt seems beyond question. And I
have no doubt that counsel represented him better than he would have done
himself.1 But, under Faretta, none of this matters. We must reverse the judgment
because the trial court did not allow defendant to represent himself.
In Faretta, over strong dissents, the high court found implied in the United
States Constitution an unexpressed right of self-representation. (Faretta, supra,
422 U.S. 806; see id. at pp. 836-846 (dis. opn. of Burger, C.J., joined by Blackmun
and Rehnquist, JJ.), 846-852 (dis. opn. of Blackmun, J., joined by Burger, C.J.,
and Rehnquist, J.).) I agree with Justice Mosk’s observation: “It was unfortunate

1
The majority states that “the evidence against defendant was
overwhelming, and our review of the record indicates defendant was vigorously
and adequately represented, and received a fair trial.” (Maj. opn., ante, at p. 11.)
But it does not state what that evidence was or describe the crimes, and it does not
state anything defense counsel did.

In August 1988, defendant robbed Byung Kim, a merchant, shortly after
Kim withdrew $80,000 from a bank to use in his business. Defendant shot and
mortally wounded Kim in Kim’s van, then fled in the van with the victim. He was
apprehended later after he shot a retired police officer. Witnesses observed these
events and defendant confessed to the crimes. Defendant had been convicted of
voluntary manslaughter in 1983. Defense counsel presented a substantial case in
mitigation.
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that Faretta v. California (1975) 422 U.S. 806—a noncapital case—in recognizing
a general right of self-representation did not distinguish between mere traffic
infractions and the heightened requirement of cases in which the issue is life or
death.” (People v. Clark (1992) 3 Cal.4th 41, 174 (dis. opn. of Mosk, J.).) I also
sympathize with his view that “[i]f there is the slightest doubt of the knowledge
and abilities of the defendant to effectively duel with the skilled prosecutor, the
trial court should deny self-representation at the very outset.” (Ibid.) The problem
is that this view is not the law of the land.
As Justice Richardson once observed in concurring in a similar reversal of a
death judgment, “The trial court in this death penalty case took the understandable
position that, because of the serious nature of the charges facing defendant, he
should not be permitted to represent himself. Such a solicitous approach,
however, evidently violated Faretta v. California (1975) 422 U.S. 806, which
limits the trial court’s inquiry to the issue whether the defendant knowingly and
intelligently waived his right to counsel, and was ‘aware of the dangers and
disadvantages of self-representation . . . .’ (P. 835.) It is not, however, essential
that defendant be competent to serve as counsel in a criminal case. (P. 836.) It is
enough that he intelligently waive his right to an attorney and that he understand
the risks. This formulation may be dubious but it is the law, even in a capital
case.” (People v. Joseph (1983) 34 Cal.3d 936, 950 (conc. opn. of Richardson,
J.).) Any lingering doubt that this is, indeed, the law was eliminated in Godinez v.
Moran (1993) 509 U.S. 389, a capital case.
This was not always the situation in California. As the title Faretta v.
California implies, the defendant, Faretta, challenged California law in effect at
the time. That law was quite different from what the high court now decrees. In
People v. Sharp (1972) 7 Cal.3d 448, we unanimously found no constitutional
right of self-representation. Indeed, as we explained, the California Constitution
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had recently been amended to permit the Legislature to require that felony
defendants be represented by counsel. (People v. Sharp, supra, at p. 463, appen.)
In anticipation of that amendment, and to take effect on its adoption, the
Legislature passed laws requiring counsel for all capital defendants. (Pen. Code,
§§ 686, subd. 2, 686.1, 859, 987, subd. (b).)
These statutes still exist, although obviously Faretta rendered them invalid.
The courts of this state properly ignore them today. But the legislatively stated
policy behind these statutes remains the policy of this state, although it cannot be
given effect: “The Legislature finds that persons representing themselves cause
unnecessary delays in the trials of charges against them; that trials are extended by
such persons representing themselves; and that orderly trial procedures are
disrupted. Self-representation places a heavy burden upon the administration of
criminal justice without any advantages accruing to those persons who desire to
represent themselves.” (Stats. 1971, ch. 1800, § 6, p. 3898.)
This case contains a great irony. At retrial, defendant may wish to be
represented. If so, he will not be bound by the request to represent himself that
elicited the trial court’s error and won him this reversal. Nothing prevents him
from requesting and gaining the benefit of counsel for the retrial. If he does
request counsel, then all that the trial court’s error in denying self-representation
will have accomplished is to give defendant two trials, not just one, in which he is
represented by counsel. This result is hard to explain in any rational manner.
There is much to be said for modifying Faretta, at least in capital cases, to
give the trial court discretion to deny a request for self-representation when no
good ground exists for the request and the defendant is not capable of effective
self-representation. But such modification is not for us to do. As Justice
Richardson stated, we must “await further instruction on the point from the high
court which originated the Faretta principle.” (People v. Joseph, supra, 34 Cal.3d
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at p. 951 (conc. opn. of Richardson, J.).) In the meantime, we have no choice but
to obey the high court and reverse this judgment.
CHIN,
J.
WE CONCUR:

BAXTER, J.
BROWN, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Dent
__________________________________________________________________________________

Unpublished Opinion
Original Appeal

XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S024645
Date Filed: April 10, 2003
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: John P. Shook

__________________________________________________________________________________

Attorneys for Appellant:

Lynne S. Coffin, State Public Defender, under appointment by the Supreme Court, Jay Colangelo and
Andrew S. Love, Assistant State Public Defenders, and Jessica K. McGuire, Deputy State Public Defender,
for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, John R. Gorey, Sharlene A. Honnaka and Russell A. Lehman,
Deputy Attorneys General, for Plaintiff and Respondent.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Jessica K. McGuire
Deputy State Public Defender
801 K Street, Suite 1100
Sacramento, CA 95814-3518
(916) 322-2676

Russell A. Lehman
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2280

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Opinion Information

Date:	Docket Number:
Thu, 04/10/2003	S024645

Disposition
Apr 10 2003	Opinion: Reversed

Dockets
Nov 1 1991	Judgment of death
Jan 10 1992	Filed certified copy of Judgment of Death Rendered   11-1-91.
Jan 20 1995	Counsel appointment order filed   Mark Alan Hart, Esq., Is appointed to represent Applt on His A.A., Including Any Related Habeas Proceedings.
Feb 14 1995	Application for Extension of Time filed   By Applt to request correction of Record.
Feb 27 1995	Extension of Time application Granted   To Applt To 4-24-95 To request Corr. of Record.
Apr 24 1995	Application for Extension of Time filed   By Applt to request correction of Record.
Apr 24 1995	Extension of Time application Granted   To Applt To 6-23-95 To request Corr. of Record.
Jun 21 1995	Application for Extension of Time filed   By Applt to request correction of the Record.
Jun 23 1995	Extension of Time application Granted   To Applt To 8-22-95 To request Corr. of Record.
Aug 22 1995	Application for Extension of Time filed   By Applt to request correction of Record.
Aug 24 1995	Extension of Time application Granted   To Applt To 10-23-95 To request Corr. of Record.
Oct 23 1995	Application for Extension of Time filed   By Applt to request correction of Record.
Oct 24 1995	Extension of Time application Granted   To Applt To 12-22-95 To request Corr. of Record.
Dec 20 1995	Motion filed   By Atty Mark Hart to withdraw as Counsel for Applt.
Dec 22 1995	Application for Extension of Time filed   By Applt to request correction of Record.
Dec 27 1995	Extension of Time application Granted   To Applt To 2-20-96 To request Corr. of Record.
Feb 15 1996	Application for Extension of Time filed   By Applt to request correction of the Record.
Feb 16 1996	Extension of Time application Granted   To Applt To 4-22-96 To request Corr. of Record.
Apr 22 1996	Application for Extension of Time filed   By Applt to request correction of the Record.
Apr 23 1996	Extension of Time application Granted   To Applt To 6-21-96 To request Corr. of Record.
Jun 21 1996	Application for Extension of Time filed   By Applt to request correction of the Record.
Jun 25 1996	Extension of Time application Granted   To Applt To 8-20-96 To request Corr. of Record.
Aug 20 1996	Application for Extension of Time filed   By Applt to request correction of the Record.
Aug 23 1996	Extension of Time application Granted   To Applt To 10-21-96 To request Corr. of Record.
Oct 21 1996	Application for Extension of Time filed   To request Record correction
Oct 23 1996	Extension of Time application Granted   To December 18,1996 To request Record correction
Dec 18 1996	Application for Extension of Time filed   By Applt to request correction of the Record.
Dec 19 1996	Extension of Time application Granted   To Applt To 2-18-97 To request Corr. of Record.
Dec 23 1996	Order filed:   Good cause appearing, the application of appointed counsel for permission to withdraw as attorney of record for appellant, filed 12-20-95, is granted. The order appointing Mark Alan Hart as counsel of record for appellant Omar Dent, III, filed 1-20-95, is hereby vacated. On the court's own motion, the Office of the State Public Defender is hereby appointed to represent appellant Omar Dent III in his automatic appeal now pending in this court, including any related habeas corpus proceedings. Mr. Hart is ordered to transmit forthwith all case files, transcripts and any other case-related materials to Emry J. Allen, Acting Chief Attorney, Office of the State Public Defender, 801 K Street, Suite 1100, Sacramento, 95814.
Feb 11 1997	Application for Extension of Time filed   By Applt to request Record correction
Feb 19 1997	Extension of Time application Granted   To April 21,1997 To request Record correction
Apr 10 1997	Application for Extension of Time filed   By Applt to request correction of the Record.
Apr 17 1997	Extension of Time application Granted   To Applt To 6-20-97 To request Corr. of Record.
Jun 18 1997	Application for Extension of Time filed   By Applt to request correction of the Record.
Jun 26 1997	Extension of Time application Granted   To Applt To 8-19-97 To request Corr. of Record.
Aug 14 1997	Application for Extension of Time filed   By Applt to request correction of the Record.
Aug 19 1997	Extension of Time application Granted   By Applt to 10-20-97 to request Corr. of Record.
Oct 16 1997	Application for Extension of Time filed   By Applt to request Record correction
Oct 24 1997	Extension of Time application Granted   To December 19,1997 To request Record correction
Dec 16 1997	Application for Extension of Time filed   By Applt to request correction of the Record.
Jan 22 1998	Extension of Time application Granted   To February 17,1998 To request Record correction no further Extensions of time Are Contemplated
Feb 5 1998	Received:   Copy of Applt's request for correction, Completion & Settlement of Record (10 Pp.)
Mar 23 2000	Record on appeal filed   C-17 (3,450 Pp.) and R-39 (4,568 Pp.) Including Material Under Seal; Clerk's Transcript includes 2,351 pages of Juror Questionnaires.
Mar 23 2000	Appellant's opening brief letter sent, due:   5/2/2000
Apr 27 2000	Application for Extension of Time filed   To file Aob.
Apr 28 2000	Extension of Time application Granted   To 7/3/2000 To file Aob.
Jun 28 2000	Application for Extension of Time filed   To file Aob.
Jul 3 2000	Extension of Time application Granted   To 9/1/2000 to file AOB.
Jul 24 2000	Counsel's status report received (confidential)
Aug 28 2000	Application for Extension of Time filed   To file AOB. (3rd request)
Sep 5 2000	Extension of Time application Granted   To 10/31/2000 to file AOB.
Sep 26 2000	Counsel's status report received (confidential)
Oct 31 2000	Application for Extension of Time filed   To file AOB. (4th request)
Nov 1 2000	Application for Extension of Time filed   Amended request to file AOB. (4th request)
Nov 3 2000	Extension of Time application Granted   To 1/2/2001 to file AOB.
Nov 27 2000	Counsel's status report received (confidential)   from State P.D.
Dec 27 2000	Application for Extension of Time filed   To file AOB. (5th request)
Jan 5 2001	Extension of Time application Granted   To 3/5/2001 to file AOB. No further ext. of time are contemplated.
Jan 26 2001	Counsel's status report received (confidential)
Feb 28 2001	Application for Extension of Time filed   to file AOB. (6th request)
Mar 9 2001	Extension of Time application Granted   To 5/4/2001 to file AOB. No further extensions will be granted.
Mar 27 2001	Counsel's status report received (confidential)   from State P.D.
May 4 2001	Appellant's Opening Brief filed - (129 Pp.)
May 30 2001	Application for Extension of Time filed   To file respondent's brief. (1st request)
Jun 4 2001	Extension of Time application Granted   To 8/2/2001 to file respondent's brief.
Jul 26 2001	Application for Extension of Time filed   to file respondent's brief. (2nd request)
Aug 1 2001	Extension of Time application Granted   To 10/1/2001 to file resp.'s brief.
Aug 8 2001	Counsel's status report received (confidential)   from State P.D.
Sep 26 2001	Application for Extension of Time filed   to file respondent's brief. (3rd request)
Oct 4 2001	Extension of Time application Granted   To 11/15/2001 to file resp.'s brief.
Oct 11 2001	Counsel's status report received (confidential)
Oct 11 2001	Counsel's status report received (confidential)
Nov 8 2001	Application for Extension of Time filed   to file respondent's brief. (4th request)
Nov 20 2001	Extension of time granted   To 12/5/2001 to file resp.'s brief. No further extensions of time are contemplated.
Dec 4 2001	Respondent's brief filed   (166 pp.)
Dec 13 2001	Counsel's status report received (confidential)   from State P.D.
Dec 21 2001	Request for extension of time filed   To file reply brief. (1st request)
Dec 21 2001	Extension of time granted   To 2/22/2002 to file reply brief.
Feb 11 2002	Counsel's status report received (confidential)
Feb 19 2002	Request for extension of time filed   To file reply brief. (2nd request)
Feb 20 2002	Extension of time granted   To 4/23/2002 to file reply brief. Dep. State PD McGuire anticipates filing the brief by 6/23/2002. Only one further extension for 60 additional days is contemplated.
Apr 12 2002	Counsel's status report received (confidential)
Apr 12 2002	Request for extension of time filed   To file reply brief. (3rd request)
Apr 16 2002	Extension of time granted   To 6/24/2002 to file reply brief. Dep. State Public Defender McGuire anticipates filing the brief by 7/23/2002. Only one further extension totaling 30 additional days will be granted.
Jun 11 2002	Counsel's status report received (confidential)
Jun 24 2002	Request for extension of time filed   To file applt.'s reply brief. (4th request)
Jun 27 2002	Extension of time granted   To 7/24/2002 to file applt.'s reply brief. Dep. State Public Defender McGuire anticipates filing that brief by 7/24/2002. No further extension will be granted.
Jul 24 2002	Appellant's reply brief filed   (92 pp.)
Aug 12 2002	Counsel's status report received (confidential)
Oct 11 2002	Counsel's status report received (confidential)   from State P.D.
Oct 17 2002	Motion filed   By appellant to unseal in camera proceedings.
Oct 25 2002	Request for extension of time filed   by respondent to file opposition to appellant's motion unseal in camera proceedings.
Nov 8 2002	Extension of time granted   To 11/25/2002 to respondent to file opposition or other response to appellant's motion to unseal in camera proceedings.
Nov 18 2002	Request for extension of time filed   by respondent to file opposition to motion to unseal in camera proceedings. (2nd request)
Nov 21 2002	Extension of time granted   to 12-26-2002 to file opposition or other response to applt's motion to unseal in camera proceedings. After that date, no further extension will be granted. Extension granted based upon Deputy AG Russell A. Lehman's representation that he anticipates filing the document by 12-25-2002.
Dec 10 2002	Oral argument letter sent   advising counsel that case could be scheduled for oral argument as early as February 2003 calendar. Any request for additional time to argue, notification of requirement for two counsel, or advisement of "focus issues" due no later than 10 days after the case has been set for oral argument.
Dec 10 2002	Counsel's status report received (confidential)   from State P.D.
Dec 26 2002	Opposition filed   by respondent to motion to unseal in camera proceedings.
Jan 7 2003	Case ordered on calendar   2-4-03, 2pm, Sacramento
Jan 16 2003	Filed letter from:   Respondent, dated 1/16/2003, re focus issues for oral argument and requesting 45 minutes for argument.
Jan 17 2003	Filed letter from:   Appellant, dated 1/16/2003, re focus issues for oral argument.
Jan 21 2003	Related habeas corpus petition filed (concurrent)   (No. S112996)
Jan 21 2003	Filed letter from:   Appellant, dated 1/17/2003, requesting 35 minutes for oral argument.
Jan 22 2003	Order filed   The request of appellant for 35 minutes for oral argument is granted.
Jan 22 2003	Order filed   The request of respondent for 45 minutes for oral argument is granted.
Jan 30 2003	Received letter from:   Appellant's counsel, dated 1/30/2003 re additional authorities for oral argument.
Feb 4 2003	Cause argued and submitted
Apr 10 2003	Opinion filed: Judgment reversed   and remanded to the trial court. Majority Opinion by Brown, J. -- joined by George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ. Concurring Opinion by Chin, J. -- joined by Baxter and Brown, JJ.
Apr 28 2003	Order filed   Appellant's 10-17-2002, "Motion to Unseal in Camera Proceedings" is denied as moot.
May 13 2003	Remittitur issued (AA)
May 16 2003	Order filed (150 day statement)
May 22 2003	Received:   Acknowledgment of receipt of remittitur.

Briefs
May 4 2001	Appellant's Opening Brief filed - (129 Pp.)
Dec 4 2001	Respondent's brief filed
Jul 24 2002	Appellant's reply brief filed

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