People v. Johns CA2/4

Filed 9/4/20 P. v. Johns CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B296081

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA458893)
v.

KENNETH JOHNS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Mark S. Arnold, Judge. Reversed and
remanded with instructions.
Jennifer Peabody, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Zee Rodriguez and Wyatt
E. Bloomfield, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________________________________________

INTRODUCTION
Appellant Kenneth Johns was represented by counsel
at his trial on charges of, inter alia, murdering one man and
attempting to murder another. A jury convicted him on all
charges. His counsel obtained a continuance of the
sentencing hearing to prepare a potential motion for new
trial, but decided against filing such a motion. Disagreeing
with that decision, appellant made a “Faretta motion,” i.e., a
motion to represent himself. (See Faretta v. California
(1975) 422 U.S. 806, 807 (Faretta).) Before allowing
appellant to represent himself, the court secured appellant’s
confirmation that he understood his counsel was better
equipped to file a new trial motion. Otherwise, the court did
not advise appellant of any risk of self-representation, and
appellant demonstrated no understanding of any such risk.
The court granted appellant’s Faretta motion and
continued the sentencing hearing for a second time.
Appellant filed his new trial motion the same day. At the
continued hearing, appellant made a request for a third
continuance, which the court denied. The court also denied
appellant’s new trial motion. It sentenced appellant to an
aggregate term of 61 years to life and imposed a restitution
fine, a criminal conviction assessment, and a court
operations assessment. Appellant made no argument

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regarding his sentence and raised no objection to the
imposition of the fine and assessments.
On appeal, appellant contends: (1) the trial court
violated his constitutional right to counsel by allowing him
to represent himself in litigating his sentence and motion for
new trial without first ascertaining whether his purported
waiver of his right to counsel was knowing and intelligent;
(2) the court abused its discretion, in a manner amounting to
a violation of several of appellant’s constitutional rights,
when it denied his request for a third continuance of the
sentencing hearing; and (3) the court violated appellant’s
due process and Eighth Amendment rights by imposing the
restitution fine and assessments without determining his
ability to pay.
We agree with appellant’s first contention, finding that
the trial court’s failure to advise appellant of any of the
substantial risks of self-representation at sentencing
prevented the court from ascertaining whether appellant
knowingly and intelligently waived his right to counsel, and
that the court’s granting of his Faretta motion therefore
violated that right. Though the parties disagree whether a
constitutional violation of this nature is subject to
harmless-error analysis, we decline to resolve this dispute,
as reversal is required under each of the standards the
parties advance. Accordingly, we reverse and remand for
resentencing. We decline to address appellant’s other
contentions, but we note that appellant will have an

3
opportunity on remand to object to the imposition of any fine
or assessment on the ground of inability to pay.

PROCEEDINGS BELOW
A. Prosecution Case
The People charged appellant with the attempted
murder of Paul Smith (Pen. Code, §§ 187, subd. (a), 664;
count one) and with an assault upon Smith with a deadly
weapon, viz., a large wooden object (id., § 245, subd. (a)(1);
count two). In connection with the attempted murder count,
the People alleged that appellant used a knife as a deadly
weapon and inflicted great bodily injury. The People further
charged appellant with the murder of Gerald Richard
Jackson (id., § 187, subd. (a); count three), alleging he
caused Jackson’s death by intentionally discharging a
firearm. Finally, the People charged appellant with the
possession of a firearm by a felon (id., § 29800, subd. (a)(1);
count four).

1. Gerald Jackson’s Murder
On June 23, 2017, around 5:56 a.m., Los Angeles Police
Department (LAPD) officers responded to the scene of a
reported shooting in Skid Row. They discovered Gerald
Jackson, the shooting victim, who soon died of a gunshot
wound to the chest.
LAPD Detective Jonathan Vander Lee obtained
surveillance videos from several cameras in Skid Row, which
were played for the jury. One video showed a man shooting

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Jackson twice around 5:52 a.m. The shooter was wearing a
black hoodie, a white shirt sticking out from underneath the
hoodie, black pants, and black shoes. Other videos showed a
man in similar clothing removing a bicycle from a tent near
the scene of the shooting around 5:40 a.m., appearing to
retrieve an object from behind the tent soon thereafter, and
concealing that object in his pocket while proceeding toward
the scene of the shooting.
On July 5, 2017, while driving in Skid Row, Detective
Vander Lee happened upon appellant. Believing that
appellant resembled the shooter in the video, he arranged for
other officers to contact appellant while he returned to a
police station to watch appellant from surveillance cameras.
In video from those cameras (which was played for the jury),
appellant went to the tent from which the shooter had
removed a bicycle. Appellant was arrested after he entered
the tent.
Jackson’s companion, Cathy Garcia, identified
appellant, whom she had known for more than 20 years, as
the man in the video from the day of the shooting. Garcia
was called to a police station on the day Jackson was killed.
After leaving the station, she encountered appellant, who
had a gun and was wearing what she believed was a
bulletproof vest.
Two additional witnesses, each in custody at the time
of trial, identified appellant as the man in the video from the
day of the shooting. Appellant’s former girlfriend, Regina
Davis, did so both in her trial testimony and in a recorded

5
police interview that was played for the jury. She testified
she did not want to testify, but she had been served with a
subpoena and had been arrested when she refused to comply
with it. Andrea Johnson similarly testified that she did not
want to testify. Johnson denied knowing appellant, but in a
recorded police interview that was played for the jury, she
identified appellant -- whom she said she had known for
more than 20 years -- as the man in the video from the day of
the shooting.

2. Paul Smith’s Attempted Murder and
Assault
Paul Smith testified that on June 19, 2017, when he
was giving food to an unhoused Skid Row resident outside
the hotel where he lived and worked, appellant -- a stranger
to him -- abruptly stabbed him in the abdomen with a knife.
Appellant tossed the knife to another man and eventually
departed on a bicycle. Smith pursued appellant with a pipe,
initiated a brief fight with appellant and the man to whom
appellant had thrown the knife, and returned to the hotel.
While Smith waited for the police at the hotel, appellant
sneaked up behind him and struck him with a large wooden
object. Videos of the stabbing and bludgeoning were played
for the jury. Smith’s stab wound required surgery.

B. Defense Case
Appellant denied killing Jackson. He testified that at
the time of Jackson’s shooting, he was in a tent with Terrie

6
Smith and another woman. In her own testimony, Terrie
Smith corroborated this alibi.
Appellant also denied attacking Paul Smith. He
testified that he confronted Smith after Smith slapped a
friend of his, but Smith walked away. He implied that
Smith might have been stabbed by another Skid Row
resident who confronted Smith about the slap. Smith soon
reappeared and struck Charles Allen, another of appellant’s
friends, with a metal pole. In his own testimony, Allen
corroborated appellant’s claim that Smith struck Allen with
a pole. The surveillance video also corroborated this claim.
Appellant acknowledged that he knew Johnson -- one
of the prosecution witnesses who had identified him in a
video from the day of the shooting, but at trial denied
knowing him. He further confirmed that he had been having
frequent phone calls with his friend Willie Meyers during
trial, but denied plotting with Meyers to influence witnesses’
testimony.

C. Prosecution Rebuttal Evidence
The People played recordings of calls placed by
appellant, from jailhouse phones, to Meyers. On one call,
appellant asked Meyers to arrange for a man to attend trial
the next day “so [Johnson] and them can see . . . his face,”
adding, “You know, a little threat.” On a later call, appellant
said he was proud of Johnson for, inter alia, denying that
she knew him.

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 D. Closing Arguments and Verdicts
In closing, the prosecutor argued the “damning” video
evidence established appellant’s guilt, especially in light of
the testimony from multiple witnesses identifying appellant
as the man in the videos. He argued appellant had
intimidated witnesses, reflecting consciousness of guilt.
Relatedly, he argued Johnson had denied knowing appellant
on the stand (after identifying him before trial) because she
was afraid to identify him as the shooter in his presence.
Appellant’s counsel urged the jury to believe
appellant’s denials of guilt, relying on the absence of
evidence of motive and challenging the prosecution
witnesses’ credibility. She argued appellant had made no
attempt to intimidate witnesses, explaining that he
repeatedly called Meyers during trial merely to offer running
commentary to a friend.
In rebuttal, a second prosecutor again emphasized the
video evidence and identification testimony, and argued that
Johnson had failed to identify appellant on the stand
because she was afraid of him.
On October 25, 2018, the jury convicted appellant on
all counts, found the murder was premeditated and
deliberate, and found the allegations associated with each
count true. The court scheduled a sentencing hearing for
December 3.

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 E. Faretta Motion and Colloquy
At the December 3, 2018 sentencing hearing,
appellant’s counsel requested a continuance to January 29,
2019, for a potential motion for new trial. The court granted
the continuance. Appellant’s counsel did not file a new trial
motion.
At the outset of the January 29 hearing, appellant’s
counsel informed the court that appellant wished to
represent himself. The court engaged in the following
Faretta colloquy:

“The court: Why would you want to do
that?
“[Appellant]: I have more evidence and I
want to file a new trial motion.
“The court: All right. Well, the trial is over.
So how much of a continuance do you want?
“[Appellant]: Can I get 45 days?
“The court: No, it’s too much. You were
convicted in October.
“[Appellant]: Okay. Well, give me two
weeks.
“The court: Okay, two weeks. Do you think
you can somehow do a better job than [your
counsel] on your sentence?
“[Appellant]: I have no evidence yet.
“The court: What’s the new evidence[?]

9
 “[Appellant]: Witnesses sent letters and I’m
getting affidavits made up saying that they were
coerced.
“The court: All right.
“[Appellant’s counsel]: He wants to do a
new trial motion.
“[Appellant]: A new trial motion, that’s
what I want to do.
“The court: Okay. What day do [--] you
don’t think you’d be better off giving the
information to [your counsel] and let[ting] her file
the motion? Because she knows how to file a
motion, you don’t.
“[Appellant’s counsel]: Your Honor, we’ve
discussed it and --
“The court: What?
“[Appellant’s counsel]: I said we’ve
discussed it and that’s not something --
“The court: You understand [your counsel]’s
in a better position to file a motion for new trial
than you are? Do you understand that?
“[Appellant]: Yes.
“The court: You nevertheless want to
continue -- you want to represent yourself?
“[Appellant]: Yes.
“The court: Okay. All right. You can
represent yourself.”

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 Having granted appellant’s Faretta motion, the court
appointed appellant’s former counsel as standby counsel and
continued the hearing to February 19.

F. Sentencing and New Trial Motion
In a sentencing memorandum, the People asked the
court to sentence appellant to a 50-years-to-life term on the
murder count (doubled from a 25-years-to-life term as a
result of the jury’s true finding on the firearm allegation), a
consecutive 13-year term on the attempted murder count
(comprising the high term of nine years and three- and one-
year enhancements for appellant’s infliction of great bodily
injury and use of a knife as a deadly weapon, respectively),
and a consecutive one-year term on the assault with a deadly
weapon count. The People relied on purported aggravating
factors under California Rules of Court, rule 421, including,
inter alia, the facts that: (1) appellant inflicted great bodily
injury, in that he “shot and killed” Jackson and “beat and
stabbed” Smith; (2) appellant used weapons, viz., a gun, a
knife, and a large wooden object; (3) appellant had engaged
in a pattern of “violent conduct,” demonstrated by 21 prior
convictions he sustained between 1988 and 2016; and (4)
appellant had shown no remorse. Most of appellant’s prior
convictions were for possession of cocaine for sale; with only
two exceptions -- each a domestic violence offense -- the
underlying offenses were nonviolent.
The same day appellant’s Faretta motion was granted
(January 29, 2019), he filed a handwritten motion for new

11
trial. The motion was based on the following grounds: (1)
the prosecutors and detectives coerced witnesses by
threatening to incarcerate them or withhold compensation if
they did not testify as they had been coached; (2) one of the
prosecutors unlawfully communicated with a juror by
mouthing “thank you” to the juror and exchanging smiles,
waves, blinks, and nods; (3) the video evidence had been
improperly altered in an unspecified manner; (4) the court
improperly failed to instruct the jury on witnesses being
under the influence of drugs; and (5) the court improperly
failed to instruct the jury on in-custody witnesses. In
declarations submitted in opposition to appellant’s motion,
the prosecutors and Detective Vander Lee denied appellant’s
accusations.
At the outset of the February 19, 2019 sentencing
hearing, appellant informed the court he was not ready to
argue his motion for new trial, explaining, “I have a
supplemental I want to do now that I’m in pro per.” After
confirming that appellant was requesting another
continuance of the hearing, the court denied the request.
Appellant protested, “You gave me pro per and I don’t even
have my case file.” The court responded, “You asked to be
pro per. If you have difficulties representing yourself and
preparing at the jail, that’s one of the unfortunate things
about being in custody. You’re the one that wanted to
represent yourself.”
The court denied the new trial motion, explaining,
“[Appellant] was represented by very experienced counsel

12
during the trial. The jury was properly instructed in all
areas, including in-custody witnesses . . . . There’s no
evidence that there was anything -- any misfeasance or
malfeasance regarding the videos. There is no evidence they
were altered, and they were properly authenticated. [¶]
Regarding the contention that there was improper contact
with Juror Number 7, that is baseless. There’s no evidence
of that. [¶] There’s no evidence that any witness perjured
themself [sic] or any witness was unduly coerced by police or
any prosecutor. [¶] The motion for new trial is denied.
There is no merit.”
Appellant protested that Davis had testified she did
not want to testify, and that he had obtained letters --
presumably including a letter from Davis -- since the trial.
The court reviewed the letters and remarked, “These don’t
tell us anything new. The in-custody witnesses [Davis and
Johnson] didn’t want to be here. They didn’t want to
testify.”1 Appellant added, “I also want -- in my
supplemental I wanted to add about the misstatements of
facts that [the prosecutor] did in front of the jury, as far as
claiming that [Johnson] was scared. She never stated that
she was scared to testify.” The court replied, “You’re an
example of why people should not be representing themself
[sic]. You were represented by a trained attorney. She knew

1 The letters reviewed by the court are not in the record. The
clerk of the superior court certified that the letters could not be
located.

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what she was doing. You don’t know what you’re doing, but
the law allows you to represent yourself.”
The court immediately proceeded to impose sentence,
without asking appellant whether he wished to argue his
sentence. On the murder count (count three), the court
sentenced appellant to a term of 50 years to life, comprising
a base term of 25 years to life and an additional 25-years-to-
life term resulting from the firearm enhancement. On the
attempted murder count (count one), the court sentenced
appellant to a term of 11 years, comprising the middle term
of seven years and three- and one-year enhancements for
appellant’s infliction of great bodily injury and use of a knife
as a deadly weapon, respectively. On the assault with a
deadly weapon count (count two), the court sentenced
appellant to the middle term of three years, stayed pursuant
to Penal Code section 654. Finally, on the felon-in-
possession count (count four), the court sentenced appellant
to the middle term of two years, to run concurrently with his
sentence on the attempted murder count. The court also
imposed a victim restitution fine, a criminal conviction
assessment, and a court operations assessment. The court
articulated no reasons for any of its sentencing decisions.
Appellant timely appealed.

DISCUSSION
Appellant contends, inter alia, the trial court violated
his constitutional right to counsel by allowing him to
represent himself in litigating his sentence and motion for

14
new trial without first ascertaining whether his purported
waiver of his right to counsel was knowing and intelligent.
We agree. Though the parties disagree whether a
constitutional violation of this nature is subject to harmless-
error analysis, we need not resolve this dispute, as reversal
is required under each standard the parties advance. We
therefore reverse and remand for resentencing.

A. Principles
A valid Faretta waiver requires “‘a finding that the
waiver is knowing and voluntary, i.e., the accused
understands the significance and consequences of the
decision and makes it without coercion.’” (People v.
Frederickson (2020) 8 Cal.5th 963, 1002 (Frederickson).) To
support such a finding, a trial court must “inform the
defendant in general terms of the most common
disadvantages” of self-representation. (Id. at 1003.) “‘The
defendant “should at least be advised that:
self-representation is almost always unwise and that the
defense he conducts might be to his detriment; he will have
to follow the same rules that govern attorneys; the
prosecution will be represented by experienced, professional
counsel who will have a significant advantage over him in
terms of skill, training, education, experience, and ability;
the court may terminate his right to represent himself if he
engages in disruptive conduct; and he will lose the right to
appeal his case on the grounds of ineffective assistance of
counsel. [Citation.] In addition, he should also be told he

15
will receive no help or special treatment from the court and
that he does not have a right to standby, advisory, or
cocounsel.”’” (People v. Ruffin (2017) 12 Cal.App.5th 536,
544 (Ruffin).) Courts frequently require defendants to sign
written forms including such admonitions before granting
their requests for self-representation. (See, e.g., id. at 541;
Frederickson, supra, at 1004.)
Where a defendant requests self-representation after
trial, the Faretta inquiry “‘need not be as exhaustive and
searching as a similar inquiry before the conclusion of
trial[.]’” (People v. Burgener (2009) 46 Cal.4th 231, 242
(Burgener).) Nevertheless, the trial court must ensure the
defendant is aware of the potential dangers of
self-representation. (See id. at 242-243 [circumstances that
“defendant asked to represent himself for the limited
purpose of the trial court’s reconsideration of his application
to modify the [death penalty] verdict,” and that application
had already been briefed, “did not relieve the court of its
duty altogether to ensure that defendant be made aware ‘of
the hazards ahead’ if he proceeded without the assistance of
counsel”; trial court should have advised defendant “that the
district attorney would be both experienced and prepared,
that defendant would receive no special consideration or
assistance from the court and would be treated like any
other attorney, that he would have no right to standby or
advisory counsel, [and] that he would be barred from
challenging on appeal the adequacy of his representation”].)
“‘[C]ourts must draw every inference against supposing that

16
the defendant wishes to waive the right to counsel.’” (Ruffin,
supra, 12 Cal.App.5th at 545.)
Some courts have held that a failure-to-warn Faretta
violation is a structural error requiring automatic reversal.
(See Burgener, supra, 46 Cal.4th at 244.) On the other hand,
our Supreme Court has assumed, without deciding, that a
deficient Faretta colloquy may be harmless if the People
show beyond a reasonable doubt that: (1) the defendant
would have waived counsel even had he received adequate
warnings; or (2) the outcome would have been no more
favorable to the defendant even had he elected to be
represented by counsel. (See id. at 244-245.)
Appellant urges us to apply the automatic-reversal standard,
while the People urge us to apply either or both of the
harmless-error standards. We need not determine which
standard applies because, as explained below, reversal is
required under each of the proffered standards.

B. Analysis
The trial court failed to ascertain whether appellant
sufficiently understood the risks of self-representation to
knowingly waive his right to counsel. The court did not
provide appellant with any written advisement of the risks
of self-representation. In the course of its brief oral colloquy,
the court completed only two relevant exchanges with
appellant. First, the court asked appellant if he believed he
could “do a better job” than his counsel on his sentence, and
appellant responded, “I have no evidence yet.” This response

17
was a non-sequitur from which we can infer no
understanding of the risks of self-representation at
sentencing. Second, after informing appellant that he,
unlike his counsel, did not know “how to file a motion,” the
court asked appellant if he understood his counsel was in a
better position to file a motion for new trial. Appellant said
he understood this, and the court granted his motion. Thus,
the court allowed appellant to represent himself at his
sentencing hearing -- where he made no sentencing
argument whatsoever -- without first ascertaining anything
other than appellant’s stated understanding that his counsel
was better equipped to file a new trial motion.
Faretta and its progeny required more. The risks of
self-representation at sentencing were substantial; nothing
before the trial court suggested appellant possessed the
sophisticated legal knowledge necessary to address the
court’s discretion in sentencing appellant’s homicide and
related convictions, or to respond to the People’s arguments
concerning the exercise of that discretion.2 As appellant’s
current counsel observes, appellant “appeared unaware of
any sentencing discretion the court had, including the ability

2 Contrary to the People’s contention, appellant’s criminal
history did not warrant an assumption that he understood the
risks of self-representation. Although appellant had been
sentenced for various nonviolent offenses and two domestic
violence offenses, nothing in the record suggested he had
experience with homicide sentencing, much less representing
himself.

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to strike or reduce the firearm enhancement pursuant to
Senate Bill No. 620 and People v. Morrison (2019) 34
Cal.App.5th 217, 221-225, the ability to impose concurrent
terms on the attempted murder count, the ability to strike
the great bodily injury or personal use enhancements
attached to the attempted murder conviction, or the ability
[to] strike fines, fees and assessments based on an inability
to pay . . . .” Had appellant remained represented by counsel,
his counsel might have objected to the imposition of the
restitution fine and assessments under People v. Dueñas
(2019) 30 Cal.App.5th 1157 (issued weeks before the
January 29, 2019 hearing at which appellant’s Faretta
motion was made and granted). Moreover, his counsel might
have argued for a favorable exercise of the court’s sentencing
discretion, including by objecting to the People’s dual
reliance on certain facts as both aggravating factors and
elements of the offense or enhancement, the People’s
reliance on appellant’s largely nonviolent criminal history as
evidence of a pattern of “violent conduct,” and the People’s
reliance on appellant’s lack of remorse. (See 3 Witkin &
Epstein, Cal. Criminal Law (4th ed. 2020) Punishment,
§§ 319-320 [discussing prohibitions on dual reliance on fact
as both aggravating factor and as element of crime or
enhancement]; id. § 322 [“prior criminality is distinct from
prior violence”]; People v. Weber (2013) 217 Cal.App.4th 1041,
1064 [trial court could not rely on defendant’s lack of
remorse as aggravating factor, where defendant denied guilt
and evidence of guilt was in conflict].) By representing

19
himself, appellant risked forfeiting all sentencing arguments
and potentially receiving a longer prison sentence.
Failing to address these risks, among others, the court
advised appellant only that his counsel was “in a better
position to file a motion for new trial.” It failed to advise him
that he would receive no special assistance from the court
(such as the continuance appellant later requested), that the
People would be represented at sentencing by experienced
and prepared counsel, or that he would be barred from
raising appellate challenges to the adequacy of his
representation (such as a challenge based on his failure to
object to the restitution fine and assessments under People v.
Dueñas, supra, 30 Cal.App.5th 1157). (See Burgener, supra,
46 Cal.4th at 242-243 [faulting trial court for failing to
deliver these admonitions, even though defendant sought
self-representation only on already-briefed application to
modify death verdict].) We conclude that in doing no more
than extracting appellant’s concession that his attorney was
better equipped to file a new trial motion than he was, the
court failed to ascertain whether appellant’s purported
waiver of his right to counsel was knowing and intelligent,
and thus violated his right to counsel by allowing him to
represent himself.3

3 The Faretta cases on which the People rely are
distinguishable. (See People v. Weber, supra, 217 Cal.App.4th at
1045, 1057-1060 [record supported finding that defendant’s
Faretta waiver was knowing and voluntary, where trial court
ascertained that defendant understood “that he would be held to
(Fn. is continued on the next page.)

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 Assuming, arguendo, that the court’s Faretta violation
is amenable to harmless-error review, we reject both of the
People’s arguments for finding the violation harmless
beyond a reasonable doubt. First, we conclude there was a
reasonable doubt whether appellant would have elected to
remain represented by counsel had he been adequately
advised of the risks of self-representation at sentencing. In
arguing to the contrary, the People rely primarily on
evidence that appellant had prepared his new trial motion
prior to requesting self-representation. However, this
preparation merely reflected appellant’s desire to file the
motion -- not his hypothetical insistence on filing the motion
in the face of adequate admonitions of the risks of

the same standards as an attorney, that the trial court would not
assist him in representing himself, and that another trial judge
had recently allowed defendant to represent himself in a criminal
case,” and trial court would have delivered additional
admonitions had defendant’s repeated interruptions not thwarted
its attempts to do so]; People v. Sullivan (2007) 151 Cal.App.4th
524, 548-550 [defendant failed to satisfy his appellate burden on
Faretta claim, where record included neither reporter’s transcript
of Faretta hearing nor settled statement, requiring the Court of
Appeal to presume that trial court regularly performed its
Faretta duties].) Another, non-Faretta case on which the People
rely is inapposite. (See Parke v. Raley (1992) 506 U.S. 20, 23-25,
35-57 [Kentucky Court of Appeals did not err in finding that
defendant knowingly and voluntarily entered guilty plea to
burglary charge, where defendant was represented by counsel
when he entered plea and had been fully advised of his rights
when he pleaded guilty to another burglary two years earlier].)

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representing himself at sentencing. Had he received such
admonitions, he might have elected to remain represented
by counsel even at the expense of filing his new trial motion,
or revealed -- as his current counsel suggests -- that his true
desire was for substitute counsel willing to file the motion.
Second, we conclude there is a reasonable doubt whether
appellant would have secured a more favorable sentence had
he elected to remain represented by counsel. The court gave
no reasons for any of its sentencing decisions, leaving us
with no basis to find the court would have adhered to each
decision in the face of all arguments counsel might have
made.

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 DISPOSITION
The judgment is reversed. The matter is remanded
with instructions to appoint counsel to represent appellant
in litigating his sentence and any post-trial motion he may
choose to file, and to resentence appellant. Our instructions
have no effect on appellant’s right to represent himself upon
a knowing and voluntary waiver of his right to counsel.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MANELLA, P. J.

We concur:

WILLHITE, J.

CURREY, J.

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