People v. Fletcher CA2/3

Filed 8/16/21 P. v. Fletcher CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B298412

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA446196
v.

SHAWN ALLAN FLETCHER,

Defendant and Appellant.

APPEAL from a judgment and order of the Superior Court
of Los Angeles County, Craig J. Mitchell, Judge. Judgment and
order conditionally reversed and remanded.
William G. Holzer, 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, Assistant
Attorney General, Kenneth C. Byrne and Gregory B. Wagner,
Deputy Attorneys General, for Plaintiff and Respondent.
 INTRODUCTION

A jury convicted defendant Shawn Allan Fletcher on one
count of attempted robbery (Pen. Code, §§ 211, 664).1 In
defendant’s first appeal, we conditionally reversed the judgment
and remanded the matter to the trial court to allow the court to
reconsider defendant’s request to represent himself under
Faretta v. California (1975) 422 U.S. 806 (Faretta) after
conducting the inquiry required under People v. Windham (1977)
19 Cal.3d 121 (Windham).
At the hearing on remand, however, defendant’s counsel
did not appear, and defendant agreed to represent himself.
Defendant now argues the court erred in allowing him to
represent himself without first advising him of his right to
counsel and the dangers of self-representation. The irony of
defendant’s position does not escape us. Nevertheless, we agree
with defendant and will again conditionally reverse and remand
for further proceedings.

PROCEDURE AND FACTUAL BACKGROUND

1. Prior Appeal
The facts of the crime are fully set forth in our prior
opinion. (See People v. Fletcher (Sept. 25, 2018, B280914)
[nonpub. opn.].) For purposes of this appeal, it is sufficient to note
that defendant removed a bicycle that did not belong to him from
the rack on the front of a public bus. As defendant rode away on
the bicycle, the owner of the bicycle saw defendant, got off the

1 All undesignated statutory references are to the Penal Code.

2
bus, and chased him. When the owner caught up to defendant, an
argument and physical altercation ensued. Defendant was
convicted by a jury on one count of attempted second-degree
robbery. (§§ 211, 664.) The court sentenced him to the mid-term
of two years, doubled to four years due to his prior strike, plus
five years in accordance with section 667, subdivision (a)(1), for a
total of nine years in state prison. The court stayed four
additional one-year terms for the four alleged prison priors under
section 667.5, subdivision (b). Defendant appealed.
In our unpublished decision, we concluded that the court
erred in summarily denying defendant’s untimely request to
represent himself during trial. Under Windham, the court was
obligated to inquire sua sponte into the reasoning behind
defendant’s request. And, as we explained, the court’s failure to
so inquire produced an appellate record insufficient to allow
meaningful review of the court’s denial of defendant’s Faretta
request. We therefore reversed the judgment conditionally and
remanded the matter to the court with the following directive:
“After considering the evidence defendant was prepared to
present without delay at the time he made his original request to
represent himself, as well as the Windham factors, the court shall
determine whether it should have granted the Faretta request in
the first instance. If so, the court shall order a new trial. If the
court determines it properly denied the request it shall reinstate
the judgment.”
This court issued the remittitur returning jurisdiction to
the trial court on December 27, 2018.
2. Proceedings on Remand and the Present Appeal
The court conducted the further proceedings contemplated
by our prior opinion (“remand hearing”) on April 2, 2019.

3
Defendant was present in court and the following colloquy
occurred at the outset of the hearing:
“Court: Mr. Fletcher is before the court. Counsel is not present.
[The prosecutor] is here on behalf of the People. [¶] This
matter comes to us by way of a directive from the court of
appeal indicating that the court address a matter that
occurred during trial with respect to Mr. Fletcher
requesting to go pro per during the trial. [¶] It was the
court’s understanding, Mr. Fletcher, that your attorney,
Ms. Miller, was going to be present today and that she had
contacted the court, in fact, multiple times wanting to be
present.
“Defendant: I haven’t spoken to her since the last time. I think it
was two, three weeks ago, and I haven’t spoken to her. The
only thing that I did receive in the mail was a letter
notifying me that I’ll be having an upcoming hearing.
“Court: Right. It’s my understanding that she wishes to address
the court and represent you on this matter, and the record
should reflect her name is Mona Deutsch-Miller.
“[Prosecutor]: Perhaps I can clarify. I sent an e-mail to Ms. Miller
late this morning when I was notified … that she was not
in court. She indicated to me that she was not planning on
coming to court today because Mr. Fletcher would be
representing himself.
“Court: Okay.
“Defendant: Okay. Yeah. That will be fine with me.
“Court: Mr. Fletcher, so you, in fact, wish to represent yourself in
this matter?
“Defendant: Yes, I would, sir.

4
“Court: Okay. The appellate court took issue with my ruling
during the course of the trial denying Mr. Fletcher an
opportunity to represent himself. I will certainly allow both
parties to address the court of appeal’s determination. [¶]
Mr. Fletcher, are you in receipt of the appellate court’s
ruling?
“Defendant: Yes, I am, sir.”
The court then allowed defendant to speak at length, at
which time defendant explained that he wished to recall
numerous witnesses and shared some of the questions he would
have asked them, if permitted to do so. The court found that,
after consideration of the proper factors, it would still have
denied defendant’s Faretta request during the trial.
Defendant again appeals.

DISCUSSION

Defendant contends the court violated his constitutional
right to counsel during the remand hearing by allowing him to
represent himself without first ascertaining whether his waiver
of the right to counsel was knowing and intelligent. We agree.
Although the parties and the courts of appeal in this state
disagree as to the appropriate standard of review—reversal per
se or harmless error analysis—we need not resolve that dispute
in this case, as reversal is required under either standard.
1. A criminal defendant is entitled to the assistance of
counsel at all critical stages of criminal proceedings. A
waiver of the right to counsel must be voluntary and
intelligent.
“It is beyond dispute that ‘[t]he Sixth Amendment
safeguards to an accused who faces incarceration the right to

5
counsel at all critical stages of the criminal process.’ [Citations.]”
(Marshall v. Rodgers (2013) 569 U.S. 58, 62.) “Article I, section 15
of the California Constitution, too, guarantees a right to ‘the
assistance of counsel for the defendant’s defense’ in a ‘criminal
cause.’ Much like its federal counterpart, article I, section 15 has
been understood to confer a right to state-appointed counsel for
indigent defendants. [Citations.] But it has also been understood
to extend more broadly than its federal counterpart … .”
(Gardner v. Appellate Division of Superior Court (2019) 6 Cal.5th
998, 1003–1004 (Gardner); and see People v. Doolin (2009) 45
Cal.4th 390, 417 (Doolin) [“A criminal defendant is guaranteed
the right to the assistance of counsel by the Sixth Amendment to
the United States Constitution and article I, section 15 of the
California Constitution.”].) “It is just as well settled, however,
that a defendant also has the right to ‘proceed without counsel
when he voluntarily and intelligently elects to do so.’ Faretta[,
supra,] 422 U.S. at [p.] 807.” (Marshall, at p. 62.)
A valid waiver of the right to counsel under Faretta
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 p. 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

6
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 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).)
Where, as here, 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).) It is
well settled that “ ‘courts must draw every inference against
supposing that the defendant wishes to waive the right to
counsel.’ ” (Ruffin, supra, 12 Cal.App.5th at p. 545.)
On appeal, we independently examine the entire record to
determine whether the defendant knowingly and intelligently
waived the right to counsel. (Doolin, supra, 45 Cal.4th at p. 453;
Frederickson, supra, 8 Cal.5th at p. 1002.)
2. Defendant was entitled to the assistance of counsel at
the remand hearing.
We first consider whether the remand hearing was a
critical stage of the proceedings at which defendant had the
constitutional right to assistance of counsel. The Attorney
General contends it was not. We disagree.
As noted, a criminal defendant’s right to counsel exists with
respect to all critical stages of the proceedings. Neither the
parties nor this court have identified any precedent specifically
addressing whether a post-appeal hearing is, as a general matter,
considered a critical stage at which a defendant is entitled to the

7
assistance of counsel. Our high court, however, recently
explained the right to counsel at critical stages of criminal
proceedings under state law:
“Under article I, section 15 of the California Constitution, a
defendant’s right to the assistance of counsel is not limited to
trial, but instead extends to other, ‘critical’ stages of the criminal
process. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th
335, 465 (Bryant, Smith and Wheeler); see People v. Bustamante
(1981) 30 Cal.3d 88, 97–99 (Bustamante).) This rule, which was
first articulated in cases interpreting the Sixth Amendment,
recognizes that the right to the assistance of counsel is fashioned
according to the need for such assistance, and this need may very
well be greater during certain pre- and posttrial events than
during the trial itself. (Lafler v. Cooper (2012) 566 U.S. 156, 165
(Lafler); United States v. Wade (1967) 388 U.S. 218, 224 (Wade).)
“For purposes of determining whether the right to counsel
extends to a particular proceeding, we have described a critical
stage as ‘one “in which the substantial rights of a defendant are
at stake” [citation], and “the presence of his counsel is necessary
to preserve the defendant’s basic right to a fair trial” [citation].’
(Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 465.) More
broadly, critical stages can be understood as those events or
proceedings in which the accused is brought in confrontation with
the state, where potential substantial prejudice to the accused’s
rights inheres in the confrontation, and where counsel’s
assistance can help to avoid that prejudice. (See Coleman v.
Alabama (1970) 399 U.S. 1, 7 (Coleman); accord, e.g., Rothgery v.
Gillespie County (2008) 554 U.S. 191, 212, fn. 16.)
“Employing this rubric, courts have identified the following
proceedings, among others, as critical stages to which the

8
constitutional right to counsel attaches: arraignments
(Hamilton v. Alabama (1961) 368 U.S. 52, 54); preliminary
hearings (Coleman, supra, 399 U.S. at p. 10); postindictment
lineups (Wade, supra, 388 U.S. at p. 227); postindictment
interrogations (Massiah v. United States (1964) 377 U.S. 201,
206); plea negotiations (Missouri v. Frye (2012) 566 U.S. 134, 143
(Frye), In re Alvernaz (1992) 2 Cal.4th 924, 933–934); and
sentencing (Lafler, supra, 566 U.S. at p. 165). Relying solely on
the state Constitution, this court has recognized a right to
counsel in other proceedings as well. (E.g., Bustamante, supra, 30
Cal.3d at p. 102 [state right to counsel extends to preindictment
lineups], disagreeing with Kirby v. Illinois (1972) 406 U.S. 682,
690.)” (Gardner, supra, 6 Cal.5th at pp. 1004–1005.)
In Gardner, the high court considered whether a criminal
defendant was entitled to representation during the pretrial
prosecution appeal of a suppression order in a misdemeanor case.
Noting that such rights are not guaranteed under the Sixth
Amendment, the court turned to our state constitution and its
own precedent. (Gardner, supra, 6 Cal.5th at pp. 1003–1004.)
First, in evaluating the defendant’s position that she was entitled
to appointed counsel, the court considered the significance of the
suppression ruling on the overall course of the proceedings. The
court observed that a suppression hearing may often determine
the outcome of a criminal prosecution or, at a minimum, may
dramatically affect the prosecution’s ability to meet its burden of
proof at trial. And a reversal of the suppression order at hand
would have revived the prosecution’s case against the defendant
and meaningfully increased the likelihood of conviction. (Id. at
p. 1005.) In other words, “an appellate proceeding to determine
whether the evidence will remain suppressed poses a clear and

9
substantial risk of prejudice to the defendant’s position at trial.”
(Ibid.)
The court also recognized that the need for counsel was
paramount due to the “intricate rules” governing the appellate
process that would be “hopelessly forbidding” for a layperson.
(Gardner, supra, 6 Cal.5th at p. 1006.) Significantly, the high
court noted, the United States Supreme Court has held that a
convicted person has a right to appointed counsel in the first
appeal as a matter of right under the due process and equal
protection clauses of the Fourteenth Amendment due, in part, to
the complexities of the process. (Id. at pp. 1006, 1008.) “[F]or the
same reasons,” the Court held the defendant was entitled to the
assistance of counsel in responding to the prosecution’s appeal
regarding the suppression order. (Id at p. 1006.)
Applying the rationale of Gardner, we conclude that the
remand hearing was a critical stage of the proceedings at which
defendant had a right to counsel. First, the stakes at the remand
hearing were high: The prosecution risked reversal of the
conviction and defendant sought to preserve his right of self-
representation—a right that had been foreclosed without a
proper evaluation by the trial court. And, if successful, defendant
might have obtained a new trial. Like Gardner, then, the remand
hearing “pose[d] a clear and substantial risk of prejudice … .”
(Gardner, supra, 6 Cal.5th at p. 1005.)
Second, and again like Gardner, the procedural complexity
of the remand hearing was significant. The hearing was not, as
the Attorney General would have it, a standard Faretta hearing
at which defense counsel would likely have a minimal role and

10
the prosecution would not participate.2 Instead, defendant was
required to argue against the prosecutor at the remand hearing
and her primary objective was to preserve the conviction. Thus,
the usual circumstances of a Faretta hearing were not present
during the remand hearing. Moreover, our disposition of the prior
appeal narrowed the focus of the remand hearing in a manner
that would be “hopelessly forbidding” for a layperson. (Gardner,
supra, 6 Cal.5th at p. 1006.)
In sum, we conclude the remand hearing was a critical
stage of the proceedings because defendant was required to
confront the state at a proceeding in which substantial prejudice
to his rights could have occurred.
3. Defendant did not knowingly and intelligently waive
his right to counsel at the remand hearing.
Defendant argues and the Attorney General concedes that
the court did not properly admonish defendant and therefore did
not obtain a knowing and voluntary waiver of the right to counsel
at the remand hearing. We agree.
As we have said, in order to ascertain that a defendant has
knowingly and voluntarily waived the right to counsel, the court
must make the defendant generally aware of the risks and
pitfalls of self-representation. Burgener is on point. There, the

2We reject the Attorney General’s assertion that “no prejudice could
have resulted from [defendant] having to appear without counsel since
the entire purpose of this Court’s remand was to allow [defendant] to
argue why he should not have to be represented.” As noted, the
remand hearing was not merely a rehearing on defendant’s Faretta
request—it involved an additional layer of complexity due to the scope
and focus of this court’s disposition of the prior appeal.

11
defendant was convicted by a jury of first degree murder and
sentenced to death. (Burgener, supra, 46 Cal.4th at pp. 233–243.)
The court later modified the sentence to life in prison without the
possibility of parole under section 190.4, subdivision (e). The
Court of Appeal reversed and remanded for a new hearing and
the matter was reassigned due to the trial judge’s retirement.
After the new judge denied the defendant’s application to modify
the death penalty verdict, the Supreme Court vacated the
judgment of death and remanded for reconsideration. (Id. at
p. 234.)
The trial court granted the defendant’s motion to represent
himself at the resentencing hearing. As pertinent here, the
defendant stated his intent to represent himself at a status
hearing following remand. The court, counsel, and the defendant
discussed scheduling matters and defense counsel’s request for a
continuance. When the defendant indicated that he wished to
represent himself for purposes of sentencing, the court stated
“ ‘I think I would be remiss if I didn’t advise you at least with
regard to certain possible pitfalls with regard to self-
representation … .’ ” But the court did not proceed with any
further advisements. (Burgener, supra, 46 Cal.4th at pp. 237–
238.) At the next hearing, the defendant again confirmed that he
wished to represent himself for purposes of resentencing. The
court briefly summarized the procedural posture of the case and
the defendant confirmed he was fully prepared to proceed. The
court then explained the scope of the resentencing hearing to the
defendant and the defendant twice indicated that he understood
the court’s explanation. (Id. at pp. 239–240.) Ultimately, the
defendant did not submit any briefing in support of his
application to modify the sentence and argued only that he

12
maintained his innocence. (Id. at p. 240.) The court denied the
sentence modification application and reinstated the judgment of
death. Appeal to the Supreme Court was automatic. (Id. at
p. 237.)
The high court concluded the trial court erred in granting
the defendant’s motion to represent himself without first
obtaining a knowing and intelligent waiver of his right to the
assistance of counsel. (Burgener, supra, 46 Cal.4th at p. 237.)
Although the trial court referenced “possible pitfalls” and
“consequences” of self-representation, it seemingly assumed that
the defendant would be aware of the particulars, as the court
never explained what the risks of self-representation might be.
(Id. at pp. 241–242.) The high court acknowledged that the
limited scope of the hearing might have warranted “a less
searching or formal colloquy” than a typical Faretta request
would require. But the limited scope of the hearing “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.” (Id. at p. 242.) Rather, the court concluded,
the 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.” (Id. at p. 243.)
Applying Burgener, we conclude the court failed to procure
a knowing and intelligent Faretta waiver from defendant.
Although no particular form of words is required, and an informal
advisement might have been sufficient in light of the limited

13
scope of the proceeding, some inquiry by the court was required.
Yet, the court failed to make any advisements concerning the
risks and possible pitfalls of self-representation. The court only
inquired if defendant wished to represent himself in the absence
of counsel and, further, whether he had received a copy of our
decision in the prior appeal. Not only did the court fail to properly
advise defendant of the risks of self-representation, it also failed
to advise defendant that he could request a continuance so that
his counsel could be present at a subsequent hearing.
In short, the court failed to obtain a knowing and voluntary
waiver of the right to counsel from defendant at the remand
hearing.
The Attorney General contends the court did not err
because defendant validly waived his right to counsel after a
proper admonishment two years earlier, when the court granted
defendant’s request to represent himself at the sentencing
hearing, and that waiver was still in effect. We agree that, as a
general matter, a trial court does not have the obligation to
readvise the defendant of the right to counsel at each hearing or
each stage of the same criminal proceeding, absent a specific
statute requiring readvisement. (People v. Crayton (2002) 28
Cal.4th 346, 359–363; People v. Bauer (2012) 212 Cal.App.4th
150, 157 (Bauer).) Nevertheless, we reject the Attorney General’s
contention for two reasons.
First, defendant did not previously waive the right to
counsel for all purposes. Instead, as is evident from the transcript
of the sentencing hearing, both the court’s advisements and
defendant’s Faretta waiver were limited to the sentencing
proceeding. At the outset of the hearing on October 12, 2016,
defendant stated “Your Honor, I would like to ask the court if I

14
could have my Faretta rights for sentencing purposes. I would
like to do those on my own, because I don’t think that [counsel]
has enough time to deal with my case.” The court “strongly
advise[d]” defendant against self-representation and, when
defendant indicated that he planned to obtain a psychiatric
evaluation and mental health records, the court cautioned
defendant that his counsel would be better able to obtain those
documents and that the court would not grant a continuance
simply because defendant was unable to obtain the documents
himself. The court did not provide broad advisements about the
risks of self-representation generally, nor did the court indicate to
defendant that his Faretta waiver could extend beyond the
sentencing proceedings. In light of those facts, we will not
construe defendant’s Faretta waiver at the sentencing stage to
apply to the remand hearing.
Second, and in any event, some courts have held that even
if readvisement is not typically required following a Faretta
waiver, the passage of time and/or the complexity of subsequent
proceedings may require readvisement of the right to counsel. For
example, in In re Turrieta (1960) 54 Cal.2d 816 (Turrieta), the
defendant pleaded guilty to petty theft in the trial court after
being informed of her right to counsel and expressly waiving it.
Proceedings were suspended and she was placed on probation for
two years. Nearly two years later, her probation was revoked and
sentence was pronounced at a proceeding in which she was not
readvised of her right to counsel. (Id. at pp. 818–819.) The high
court reversed. Although the court acknowledged that a
defendant who has intelligently waived counsel normally has the
burden to take affirmative action by bringing a motion to
reinstate the right to representation, the passage of time and the

15
complexity of the proceeding warranted readvisement. (Id. at
p. 820; and see Bauer, supra, 212 Cal.App.4th 150 [defendant
that waived counsel and pleaded guilty was entitled to counsel at
probation revocation hearing and subsequent sentencing hearing
because a probation revocation/deferred sentencing hearing is not
simply a continuation of the same criminal proceeding but rather
involves different issues and facts].)
Although the present appeal does not concern a probation
revocation hearing, we find the circumstances before us to be
somewhat analogous. Here, like the defendant in Turrieta,
defendant was advised of the risks of self-representation
approximately two and one-half years before the remand hearing.
And as in both Turrieta and Bauer, the subsequent hearing was
considerably different in substance than the prior proceeding at
which the right to counsel was waived. Specifically, in connection
with the sentencing hearing, defendant intended to represent
himself and planned to present evidence in mitigation relating to
his mental health records and psychological evaluation. The
remand hearing, in comparison, involved completely different
issues and required an understanding of the impact of our prior
decision—a significant and nuanced factor not involved at the
sentencing hearing.
4. Even if the court’s ruling is subject to harmless error
review, the Attorney General fails to establish the
error was harmless beyond a reasonable doubt.
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 p. 244.) On the other hand, our
Supreme Court has assumed, without deciding, that a deficient
Faretta colloquy may be harmless if the Attorney General shows

16
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 pp. 244–245.) We need not determine which standard
applies because reversal is required even under the harmless
error standard.
As to the first issue, defendant suggests he would not have
waived his right to counsel if he had been properly admonished.
We take him at his word but also tailor our disposition to avoid
giving him a second bite at the apple. As to the second issue, the
Attorney General has failed to establish that defendant could not
have achieved a more favorable result with counsel’s
representation. At a minimum, counsel should have been able to
address the specific issue framed by our disposition of the prior
appeal and used the facts cited in our opinion to argue the
matter—a tactic defendant was unable to employ and which
might have favorably impacted the court’s decision.
The Attorney General also appears to be concerned about
the potential for defendant to game the system on remand, noting
that if we were to hold that the court erred, “[t]he only reasonable
resolution would be to again remand the case to the trial court to
ensure [defendant] receives representation during the Faretta
hearing. But appellant, whose only goal was to represent himself,
would almost assuredly decline any representation for the
hearing on remand.” Like our high court, “[w]e share the concern
that some assertions of the right of self-representation may be a
vehicle for manipulation and abuse.” (People v. Marshall (1997)
15 Cal.4th 1, 22.) And the irony of defendant’s position—that he
was denied counsel at a hearing designed to address his request

17
to waive the right to counsel during the trial—is plain. Two
factors assure us that the proceedings on remand will be a sound
use of judicial resources. First, defendant represents that he
sought to represent himself at trial because he disagreed with his
counsel’s strategy. At the remand hearing, however, he states
that “[i]t is unlikely [he] would have chosen to forgo counsel at
the hearing, especially since an attorney made the appellate
argument that earned the remand.” Second, our disposition
ensures no waste of additional resources will occur. Like the
court in Bauer, we remand for further proceedings and if, after
being properly admonished concerning his right to counsel,
defendant again waives his right to counsel, the court is
instructed to confirm its prior order after remand and reinstate
the judgment. (See Bauer, supra, 212 Cal.App.4th at pp. 161–
162.)

DISPOSITION

The judgment and April 2, 2019 order are conditionally
reversed and the cause is remanded to the trial court with
directions to hold a hearing to determine whether defendant
wishes to waive his right to counsel in a second remand hearing.
If, after being properly admonished, defendant waives his right to
counsel (either at the outset of the hearing or during the hearing)
the court shall reenter the order issued after the previous remand
hearing on April 2, 2019. In this event, the judgment, as affirmed
in our prior decision, shall be reinstated.
If defendant exercises his right to counsel, the court shall
hold a new hearing to determine whether it properly denied
defendant’s Faretta request in the first instance, as contemplated
by our prior decision.

18
 In either event, and in the interest of justice, defendant
may seek relief under Senate Bill 1393 and ask the court to
revisit its sentencing decision and exercise its discretion to strike
or impose the serious felony enhancement under section 667,
subdivision (a). (People v. Stamps (2020) 9 Cal.5th 685, 699.)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, Acting P. J.
WE CONCUR:

EGERTON, J.

THOMAS, J.*

* Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

19