dissenting in part:
I agree with all of the majority opinion, except its resolution of Sandoval’s self-representation claim. I, too, believe that, by necessity, the Sixth Amendment right to self-representation is looked upon as the weaker corollary of the Sixth Amendment right to counsel. In this case, however, we are not called upon to determine whether this somewhat disfavored right was asserted in the first instance (thereby foregoing the all-important right to counsel); rather, we must decide whether Sandoval ivaived his constitutionally protected right of self-representation once it was asserted.
Even if waiver under such circumstances is accomplished more easily than is waiver of the otherwise self-executing right to counsel, a finding of waiver calls for 8, fact-specific inquiry. The cases relied upon by the majority teach us this lesson. For example, in Brown v. Wainwright, 665 F.2d 607 (Former 5th Cir.1982) (en banc), the defendant’s Sixth Amendment claim was denied after an evidentiary hearing had been held and all of the facts had been considered by the district court. See id. at 616 (Garwood, J., concurring) (“I wish ... to emphasize that following an evidentiary hearing the federal district court has found on the basis of adequate evidence that Petitioner, after the requests and motion to represent himself were made and before any ruling thereon by the state trial judge, resolved his differences with his appointed counsel....”). Likewise, the Supreme Court, in McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), denied the petitioner’s Sixth Amendment claim only after conducting an exhaustive review of the trial transcripts, see id. at 180-87, 104 S.Ct. 944, and finding, on a factual basis, that “[t]he record ... re-vealfed] that [the petitioner’s] pro se efforts were undermined primarily by his own, frequent changes of mind regarding counsel’s role,” id. at 182, 104 S.Ct. 944.
The problem in this case is that the facts are not as clear or developed as they were in the cases relied upon by the majority. The judge who denied Sandoval’s motion was not the judge who first considered the motion and lectured Sandoval regarding the dangers of the route he was choosing. It appears from the record that the new judge was unaware of the motion and, of greater concern, the fact that Sandoval distrusted his counsel, cf. Brown, 665 F.2d at 612 (“In the present case, since there was no allegation by defendant that he did not trust his counsel or that counsel was incompetent, the judge had no reason to conclude counsel was misrepresenting defendant’s views.”). It also appears that Sandoval was unable to hear the representations made by counsel to the new judge at sidebar, so he had no opportunity to correct those representations if they were inaccurate. In addition, Sandoval contends that he was told that his motion had been denied and that library privileges had been granted in light of that denial, not that counsel had presented the judge with both options and that the judge had chosen library privileges “to prevent another pro per,” which is what really occurred. If all *1156of these facts were to prove true, one can hardly fault Sandoval for failing to reassert his right to self-representation or to challenge the trial court’s denial of his original motion.
I understand the majority’s concern that we must avoid encouraging a defendant to waive his or her right to counsel. That being said, however, I see no reason to caution against direct discussion between a court and a defendant upon withdrawal of a Faretta motion. I suggest that the facts of this case (particularly the judge’s unfamiliarity with the motion and Sandoval’s expressed distrust of his counsel) warranted such a discussion to ensure that Sandoval had in fact waived his Sixth Amendment right to act as his own counsel. All of the uncertainty surrounding Sandoval’s waiver could have been clarified by the trial court without much additional time or effort, simply by addressing Sandoval directly.
Nor, as the majority seems to suggest, is a direct colloquy the only way to ensure that a defendant’s Sixth Amendment right of self-representation is accorded due respect under these circumstances. I would not be writing this dissent if, for example, counsel had stated in open court that Sandoval would be satisfied with library privileges and Sandoval failed to object to the accuracy of that statement when made. Under those circumstances, it would have been unnecessary for the trial court to address the defendant directly. In fact, even if the trial court simply had denied Sandoval’s motion in open court following the discussion at sidebar, Sandoval would have been put on notice on the record of the basis for that denial and we would be able to infer from his silence that counsel had accurately relayed his position.1 Unfortunately, neither of these approaches was taken at Sandoval’s hearing.
We must also remember the posture of this issue on . appeal. The district court denied Sandoval’s Sixth Amendment claim by granting judgment on the pleadings. Because this is a pre-AEDPA case, we review de novo and Sandoval is entitled to relief if the trial court committed an error that had a substantial influence on the outcome of his trial. See Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir.2000) (en banc). Under this standard, I believe the circumstances of Sandoval’s waiver merited an evidentiary hearing. Cf. Schell v. Witek, 218 F.3d 1017, 1027 (9th Cir.2000) (en banc) (“Evidentiary hearings are particularly appropriate when claims raise facts that occurred ... off the record.”).
For these reasons, I would remand for an evidentiary hearing. I therefore dissent from the majority’s determination of Sandoval’s self-representation claim.
. I do not suggest the record indicates that Sandoval’s counsel intended to mislead the trial court. It may be the case that counsel misunderstood Sandoval. Or perhaps Sandoval was satisfied with library privileges and the appeal of this issue amounts to much ado about nothing. This is the information I would expect an evidentiary hearing to develop.