1

Filed 12/22/21 P. v. Tamrat CA1/2

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

HERMON TAMRAT,

Defendant and Appellant.

 A159390

 (Sonoma County

 Super. Ct. No. SCR722500)

After a run-in with mall security guards over his use of an electrical 

outlet to charge a cell phone, defendant Hermon Tamrat was charged with 

assault with a knife, making attempted criminal threats, and exhibiting a 

deadly weapon, plus various enhancements and a strike prior. At his 

preliminary hearing, defendant sought to represent himself, as he apparently

had on previous occasions. The court granted his request and, from the time 

of his arraignment after being held to answer at the preliminary hearing 

through sentencing, defendant served as his own lawyer. The proceedings

included multiple days of pretrial hearings on discovery, Pitchess1 and other

pretrial motions, a motion to suppress, motions in limine, a hearing on 

courtroom security, and belated attempts by defendant to disqualify the trial 

1 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). 
2

judge. When the trial court denied the disqualification motion just as jury 

selection was about to begin, defendant announced that he would not take 

part in the trial. Defendant thus absented himself from jury selection, and 

all trial proceedings thereafter including the taking of evidence (which lasted 

about one day). The trial court repeatedly offered to appoint the public 

defender, but defendant refused each time. Defendant appeared for posttrial 

motions and sentencing.

Defendant contends the trial court abused its discretion in not ordering

a mental health evaluation to assess defendant’s competency to represent 

himself when, after representing himself for many months, defendant made 

statements in court which, he now argues, constituted “compelling” and 

“substantial evidence” that he was affected by an “extreme, disabling mental 

illness.” We find no merit to this argument.

Defendant also claims he is entitled to a reduction in his sentence 

under newly enacted Penal Code section 1170, subdivision (b)(6)

(§ 1170(b)(6)), which goes into effect January 1, 2022. The Attorney General 

agrees the new law applies retroactively to defendant but argues remand is 

necessary to allow the trial court to make the appropriate findings under the 

new sentencing provision. We agree with the Attorney General and will

remand the matter for resentencing in accordance with section 1170(b)(6). 

The judgment is otherwise affirmed.

FACTUAL BACKGROUND

The Underlying Crimes

On December 2, 2018, a security guard at the Coddington Mall in 

Santa Rosa saw defendant charging his cell phone in an outlet that was not 

designated for that use. When the guard told defendant he couldn’t charge 

his phone there, defendant lunged at him with a raised fist and starting 
3

cursing at him in a raised voice. The security guard radioed for help, and two 

other guards arrived momentarily.

One of the security guards had a body camera, and a video recording of 

the incident was eventually shown to the jury. When a second guard walked 

up to defendant, defendant said, “Don’t walk up on me. What are you doing?” 

He then pulled a pocketknife from his pocket. He “fake[d] a lunge” towards 

the guard threatening to “put holes in you.” 

A security guard warned defendant he would be pepper sprayed if he 

didn’t leave. Defendant started to walk away but then turned to face the 

security guards again. A guard pepper sprayed defendant, who then “rushed” 

the guard, knife in hand, and tried to stab him in the abdomen. 

After 911 was called, Santa Rosa police officers arrived at the scene.

Defendant yelled at the officers, who eventually handcuffed defendant. A

folding knife with a three to three-and-a-quarter-inch blade was found in 

defendant’s pants pocket. 

The Procedural History of This Case

At his arraignment on December 7, 2018, defendant told the court he 

“was falsely imprisoned” and “the police stole $300 from my pocket when I got 

arrested.” He said he had been falsely imprisoned multiple times before, but 

the cases always got dismissed because they were false. (As will be seen, 

defendant’s consistent refrain was that he was always the victim in his 

interactions with law enforcement and the system was “rigged” against him.) 

On December 20, 2018, defendant made his first Marsden2 motion,

which was denied. 

2 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
4

At the preliminary hearing on January 25, 2019, before Judge Peter 

Ottenweller, defendant mentioned his interest in self-representation.

3 

Defendant was held to answer, and he made a second Marsden motion which 

was denied. The court told defendant he could let the court know at the next 

hearing how he wished to proceed on self-representation. 

At the arraignment on February 7, defendant asked to represent 

himself, the court gave him a Faretta waiver form to complete, and defendant 

filled it out. The court granted defendant’s request to represent himself, 

finding he “has the mental capacity to make a lawful waiver of the right to 

counsel. He has been advised by the Faretta form of his constitutional and 

statutory rights. He understands all of those rights. He has made an 

express, explicit, voluntary, willing, knowing and intelligent decision to 

represent himself.” 

Defendant then requested a court-appointed investigator to assist with 

pretrial discovery. Anthony Hopkins was appointed as his investigator. 

Over the course of five hearings in February and March, defendant 

engaged in detailed discussions with the court and the prosecution about 

discovery.

At one of the hearings, the court indicated it was going to review 

unredacted video evidence in chambers, and defendant reacted with distrust 

and began complaining about his treatment in jail. He stated, “So I’m 

supposed to just trust you guys right now like that? . . . [N]o disrespect, . . .

3 Just as the first witness was being sworn, defendant said he wanted 

to represent himself. The court gave defendant a written Faretta form. 

(Faretta v. California (1975) 422 U.S. 806 (Faretta).) However, after some 

discussion between defendant and defense counsel, counsel stated defendant 

wanted a continuance to review the evidence. The prosecution objected, and 

the court denied a continuance, noting there had been no time waiver. 
5

[¶] . . . I’m having a hard time in this jail right now.” Defendant claimed his 

“pro per rights” were being violated. The court said it would find out from 

the pro per coordinator at the jail whether accommodations were being made 

for defendant to prepare for trial and the court would get involved if there 

were not. When the court ordered the bailiff to take defendant back to jail, 

defendant became hostile toward the court. He accused the court of

“basically working with them [the jail]. I already knew, you piece of shit. 

You’re a piece of shit, too. You know that videotape is edited too and 

tampered with illegally. Fucking piece of shit.” 

The next two hearings on discovery were uneventful. Defendant

answered questions, said he understood answers, and made no outbursts. 

On May 1, there was a lengthy pre-trial proceeding at which the court 

granted many of defendant’s requests for discovery and discussed with 

defendant and his investigator the logistics of viewing video footage in jail 

and subpoenaing witnesses. 

At another pretrial hearing on June 17, defendant asked for advisory 

counsel to help him write, claiming that his writing arm had been injured by 

the sheriff. The court denied the request on the ground that this was not an 

appropriate basis for advisory counsel. The court reminded defendant he 

could reconsider whether he wanted to be represented by a public defender.

At the next hearing on July 24, defendant filed a Pitchess motion which 

the court set for hearing. The trial court again asked defendant whether he 

would like a public defender appointed to represent him. Defendant was firm 

and repeatedly said no. At the close of the hearing before leaving the 

courtroom, defendant stated, “Kangaroo court.” 

At the next hearing on August 30, the Pitchess motion was taken off 

calendar because it had not been properly served. Defendant objected to the 
6

court dropping the Pitchess motion from calendar and accused the judge of 

bias. Again, he called the court a kangaroo court. 

When court reconvened that afternoon, defendant made rude remarks 

and said, “You feel good about yourself taking me away from what I had 

going on, losing my job, losing my tax money now since I’ve been falsely 

imprisoned?” The hearing resumed. The trial court denied defendant’s 

further motion for advisory counsel, and defendant then argued at length

against the ruling. The court reminded defendant of his Faretta waiver form. 

“I’m going to read to you what you signed in February of 2019. . . . [¶] . . . [I]t 

lists your constitutional rights, that you have read and understood them. It 

asks in there whether you can read and write English. You marked yes. Do 

you have any mental illness or disability that would impair your abilities? 

You said no.” The court continued to read the representations made by 

defendant on the waiver form,

4 and concluded, “So Mr. Tamrat, I’m going to 

ask you again, do you wish me to appoint a Public Defender to represent you 

in this matter? Yes or no?” Eventually defendant replied in no uncertain 

terms that he did not want a public defender. 

When the court tried to set the next date for the case, defendant

interjected that he wanted to address the Pitchess motion. The court warned 

defendant if he did not “respect [the court] by using the word kangaroo court, 

I will then find you in contempt with various sanctions that apply to it.” 

Defendant responded that the court had not “been treating me with respect 

based on your abuse of discretion just because I represent myself and you 

thought I was just a dumb street punk, I already know that, but you see that

4 Including that defendant understood the “numerous disadvantages to 

representing myself,” such as having to follow the same rules of procedure as 

a lawyer and not getting special treatment from the bench. 
7

. . . I have some skills.” Defendant and the court engaged in extended 

colloquy about the Pitchess issue. Defendant lashed out against the judge 

and the prosecutor saying he knew “these little games” they were playing and

made repeated references to a kangaroo court. 

At a hearing on September 11, the court asked defendant if he had any 

objection to the court reviewing records subpoenaed by defendant for 

relevance, outside the parties’ presence. Defendant objected that he did not 

trust the court or think it was fair. After that, the court and parties 

discussed discovery and trial witnesses at length. Defendant informed the 

court that some defense witnesses would testify about his character and 

mental health. 

On September 16, the court conducted a lengthy evidentiary hearing on 

the issue of courtroom security5 in which defendant fully participated; the 

transcript ran to about 100 pages.

To support its request that defendant be restrained at trial, the county 

presented evidence defendant was dangerous and threatening in jail and his 

behavior was disrespectful in court. 

Sergeant Michael Patrick from the sheriff’s department testified that 

defendant was “classified as an Administrative Segregation, level three, . . .

behavior problem, with an internal behavior code of Z.” Administrative 

segregation was for people who “pose[ ] a serious threat to the safety of our 

staff, other inmates or our facility, and you do not have major mental health 

concerns.” “[B]ehavior problem” refers to inmates who are “acting out 

regularly, by showing a disregard for facility rules, for lack of adhering to the 

5 The county counsel, on behalf of the sheriff’s department, had 

requested an order to place defendant in restraints during trial. Defendant 

had filed a motion to appear without restraints. 
8

rules within the units and following staff’s directions.” Patrick testified that 

code “Z” generally “indicates an inmate is prescribed or is tracked for mental 

health medications,” but he was “not privy” to why defendant was so 

classified. 

Defendant objected that he was “not a mental health issue” and he had 

never talked to mental health staff at the jail. 

Patrick described defendant’s behavior in jail as “[d]angerous, 

threatening and of definite concern regarding the safety and security of our 

facility.” In his view, when defendant “receives negative information or 

things do not go in the direction he likes, there’s a probability that he would 

act out or be verbally aggressive toward staff. How that translates into the 

courtroom would definitely be a concern.”

Steven Nelson, a bailiff, testified about defendant’s demeanor in the 

courtroom in the preceding months. According to Nelson, defendant usually 

“behave[d] himself during court proceedings until . . . towards the end of the 

proceedings.” Then “if [defendant] has further things that he wants to talk 

[about] and the Judge . . . advise[s] him that he’s done for that session, he 

becomes verbally abusive to the Judge, to the staff, and usually that 

continues out the door and then down the hallway . . . .” In Nelson’s threeand-a-half years of working as a courtroom bailiff defendant’s verbal behavior 

was the worst he had seen. 

Defendant strongly disputed Patrick’s testimony about his jail 

behavior. He argued jail staff had “tainted his file with false evidence, false 

statements” and had been harassing him since his arrest on December 12

because he wrote grievances and exercised his rights. 

On September 17, the judge gave his tentative ruling on the security 

issue that defendant’s feet would be secured to a bolt underneath the 
9

courtroom desk, but his hands would not be restrained, and he could use a 

soft pen at trial. Defendant would not be secured to his chair, nor did the 

court agree to the other restraints the deputies had requested. 

In what comes across as measured tones even on the written transcript, 

the judge reasoned:

“I have been the Judge throughout Mr. Tamrat’s case here in 

Department 10. He has appeared in front of me probably 20 times or more. 

My observations of Mr. Tamrat, he has never been physically aggressive 

while in the courtroom. He has . . . at times . . . been disrespectful in his 

language here in the courtroom, but except for comments regarding reporting 

myself or the attorneys or the staff to various disciplinary tribunals, he’s 

never threatened the Court, nor . . . am I aware that he has threatened any of 

my courtroom staff. So, in other words, while I think Mr. Tamrat’s behavior 

at times has been disruptive . . . I’ve not found him to be [physically] 

aggressive.” 

The court further observed, “I also heard that there are times Mr. 

Tamrat can behave himself and act accordingly and there are times that 

when he is triggered or when he . . . feels that he is being discriminated 

against or picked on or treated unfairly, that he acts out in a verbally abusive 

manner which also can translate into physically aggressive behavior.” 

The same day, the court heard a motion to suppress; defendant crossexamined an officer at length and made a detailed closing argument, citing 

cases. 

September 18, 2019, brought another lengthy day of pretrial motions 

and rulings. Defendant told the court one of his prospective character 

witnesses, Salmon Tedla, would address defendant’s “mental health” and 

“traumatic incidents” in his life that resulted in a PTSD diagnosis. 
10

Defendant also noted his proposed exhibit of the definition of PTSD, which he 

intended to use to argue to the jury that he “went into defensive mode” at the 

mall because “when they performed the tactical maneuver around [him],” he

was “triggered” to act “in defense.” 

After establishing that Tedla was not a doctor, the court explained to 

defendant that Tedla’s proffered testimony about PTSD was not proper for a 

layperson. Defendant responded that Tedla would only testify about “these 

incidents” that defendant went through and that none of his witnesses would 

act as doctors or “mention anything with PTSD.” 

The court took a recess and addressed motions in limine. Defendant

worked his way through the motions, showing his familiarity with the 

process. 

Defendant’s consistent theme was that he had been subject to a biased 

investigation and false statements; he said he filed a citizen complaint 

against the officers in his case for excessive force,6 and he was “truly the 

victim” in the incident. He also believed money had been stolen from him at 

booking.

The trial court showed exceptional patience with defendant. The court 

explained to defendant that he could testify to previous fighting or threat

incidents to explain his behavior, but he could not self-diagnose PTSD. 

After additional argument about whether defendant’s written definition 

of PTSD was admissible as an exhibit, defendant claimed the judge was 

“basically railroading me,” and that “[y]ou guys got to cheat me to beat me.”

The court explained that PTSD was a matter for expert opinion, that without 

6 The court said the citizen complaint was inadmissible because 

defendant had not been charged with resisting arrest or battery on a peace 

officer. 
11

an expert, the definition proffered by defendant was hearsay and irrelevant, 

and that the court had authorized funds for defendant to retain an expert,

but he had not done so. Defendant repeated the refrain that he was being 

cheated and railroaded. 

Defendant objected on the grounds of relevance to the pocketknife

recovered from the incident at the mall being displayed during trial. After

the court overruled the objection, defendant addressed the court, “Also, I 

would like to let the record reflect that I will not get a fair jury panel. I will 

be prejudiced due to the fact that I’ve been subject [to] harassment from the 

FBI and other law enforcement agencies. It’s a well-known fact. You don’t 

have to play this little game. Everybody knows what going on. So I would

never be able to get a fair trial based on that fact. And I could bring 

witnesses in on what I’m saying right now.” Defendant said he would like a 

change of venue. 

Defendant then made the statement he now relies on as evidence of 

severe mental illness. Complaining about harassment by the FBI, defendant 

said: “It’s viral, you know, a lot of people are involved in this, relatives 

know[ ] that. The FBI implanted something in me illegally, messed with me 

in my head and my body and continue to do it in this jail as well, in the cell. 

[¶] It’s a bunch of things. It’s too—you wouldn’t even be found to understand. 

I would have to sit you down. It’s not no conspiracy. I have witnesses, 

relatives that witness some phenomenal experience with their eyes.” 

Defendant continued: “They know that I am subject to harassment

. . . . And a lot of people know about me. What it is, I don’t know, but it’s a lot 

of things being said about me. I walk down the street and . . . it’s hard to 

explain, but trust me it’s—everybody knows me for some reason. This is not 

no crazy talk or nothing. Like I said, I could bring witnesses which are 
12

relatives and other people in this regards. I will not be subject to a fair trial. 

I will be prejudiced automatically due to that fact and everybody is well 

aware so . . . . [¶] You know what I’m talking about, he does, he does, the 

Sheriff does, the stenographer, everybody knows what’s going on. [¶] So, you 

know, I would not be subject to a fair trial and I’m letting that be known, and 

I could bring witnesses, but if you deny me that, then, hey, oh well, it’s more 

of appeal. That’s about . . . the 10th reason I could appeal this case if I get 

falsely convicted. Because I got a bunch of appeal reasons . . . with you and 

this courtroom, this kangaroo court. So I’m not worried about it, plus I got 

my Habeas Corpus, but I will submit that. I will not get a fair trial.” 

The prosecutor then brought to the court’s attention an email he 

received from defendant’s investigator Hopkins—an interview summary of 

proposed defense witness Tedla, who was defendant’s uncle—which the 

prosecutor suggested was relevant given defendant’s comments “regarding 

the FBI and his mental state.” According to Hopkins’s summary, Tedla 

believed defendant was “highly anti-social, has no friends or social life, was 

extremely paranoid, believed federal agents were monitoring him and 

surveilling him, [and] believed his uncle [Tedla] was conspiring with federal 

agents against him.”

7 

7 At this point, defendant stated he had been harassed for years and, “I 

would not get a fair trial based on the jury panel because everybody knows, 

this is viral . . . . All that . . . dumb stuff going on. . . . Everywhere I go on the 

street, somebody—when they walk right by me. . . . [¶] And my relatives 

know . . . I’m being targeted. They know what’s going on. They’re doing a 

bunch of illegal stuff, the FBI and other authority, law enforcement, 

government authority, they’re doing some illegal stuff, and I’m subject to a lot 

of harassment for a lot of years . . . .” Defendant correctly referenced the trial 

court’s earlier ruling that Tedla could not testify to the diagnosis of PTSD 

since he was not an expert. 
13

The prosecutor observed that defendant’s “statements to the Court . . .

seem to devolve into some rather paranoid expressions” and reminded the 

court of its “authority under Evidence Code 730,” suggesting “perhaps you 

have Dr. Correa take a quick look . . . .”8 

The trial court did not think defendant required a mental health 

evaluation, explaining: “The Court at this point does not believe a further 

evaluation by Dr. Correa would be in order. . . . [W]e have spent almost three 

full days with Mr. Tamrat discussing somewhat sophisticated legal issues. 

Mr. Tamrat seems to be following along. While he has in his remarks to the 

Court again continues to be disrespectful in not only the Court but 

announcing how the proceedings are rigged against him, which does show 

some paranoia, this can also be from Mr. Tamrat’s own personal experiences 

that he is relating to. [¶] So I don’t believe that his comments here about a 

chip in his body from the FBI and those kind of things will interfere with his

ability to understand the nature of the charges and to represent himself in 

this matter.” 

After a break, the trial court moved on to more pretrial motions and 

matters. The court spent a considerable amount of time going over the jury 

selection process, including the kinds of questions that could be asked in voir 

dire. Defendant told the court he “kn[e]w the questions to ask,” but felt the 

8 Evidence Code section 730 provides the court authority to appoint an 

expert to investigate and testify “as an expert at the trial of the action 

relative to the fact or matter as to which the expert evidence is or may be 

required.” The parties do not identify who Dr. Correa is and have not pointed 

us to anywhere in the record where he is mentioned. Nor have they pointed 

us to anywhere in the record that indicates that the court, the prosecutor, or 

the defense counsel (before defendant began representing himself) ever 

expressed a doubt about defendant’s competence to stand trial under Penal 

Code section 1368.
14

process was rigged against him. “It’s me versus this courtroom. . . . [Y]ou’re 

against me, and . . . that’s facts.” The court turned to peremptory challenges 

and how they are exercised, as well as how a challenge to the panel could be 

made. Defendant repeatedly indicated he understood what the court was 

saying. 

Then defendant stated he wanted to exercise his “peremptory challenge

in recusing you as a judge because every defendant has one challenge as far 

as that.” The trial court denied the challenge as untimely. 

The court moved to jury instructions; later, defendant brought up an 

issue of discovery noncompliance. Just before the close of proceedings for the 

day, the trial court addressed defendant, “I’m going to give you another 

opportunity to consider having the Public Defender reappointed to represent 

you on this case. Do you wish to have me reappoint the Public Defender to 

represent you on this case?” Defendant identified by name one attorney from 

the Public Defender’s Office he would accept. When the court said it didn’t 

determine who would be assigned to the case, defendant said, “Yeah, if it 

ain’t her—I probably think about it. Other than that, I’m cool. I don’t want 

to.” And he added, “If it’s not her, that’s about it.” 

At the next hearing on September 20, defendant filed a statement of 

disqualification against Judge Ottenweller. 

On September 23, the court stated it was striking the statement of 

disqualification and handed out copies of its written order. Defendant read 

the order and then he engaged in colloquy with the judge about the case 

authority cited by the court, disputing its relevance, and arguing that his 

motion had been made “at the earliest practicable time” as required by the 

law. Defendant elaborated on his reasons: “It came . . . to my thinking that 

on . . . September 18, 2019, is when I determined you are very bias[ed] 
15

against me, not only that, but have also committed prejudice against me, 

have been prejudiced against me by your actions . . . .” His reasons were 

based on trial court rulings on the admissibility of evidence pertaining to 

defendant’s alleged trauma.

Defendant argued several grounds of prejudice, all related to the court’s 

rulings on various pretrial motions. He said the court tried to force him to 

“relinquish my pro per status.” Again, defendant cited case law, at length, 

concluding that his motion for disqualification was “timely” and that the 

court was not proceeding “in the right way,” and the court’s actions “fall[ ]

under the norms of misconduct.” When the court asked whether defendant

had “anything else . . . on the disqualification issue,” defendant declared he 

was refusing to participate.9 

The court returned to the logistics for the next day’s trial proceedings. 

The court stated that it was prepared to bring in the jury panel, and 

defendant interjected that he “refused to participate.” 

The court announced that they were waiting for the jury panel to come 

into the courtroom to be sworn, and that 18 would be called to the jury box. 

Defendant persisted, “I refuse to participate in this illegal proceeding[ ];” he 

was exercising his “one and only peremptory challenge;” and the judge was 

“excused.” Defendant stated that the judge had not finished hearing in 

limine motions, and it was improper to move on to selecting the jury. “I 

refuse this proceeding. I would like to go back.” Despite repeated requests 

from the bailiff, defendant stood up and would not sit down. “I refuse to 

9 He stated, “I refuse to take part in this. Since this is illegal and this 

is unlawful, I refuse to take part in any of this proceeding today or until we 

go about it the right way, until the Judge goes about this the right way as far 

as the disqualification motion I filed.” [¶] So I refuse—I will remain silent . . . 

I refuse to participate.” 
16

participate in this illegal proceeding by law— . . . [¶] I’m entitled to that.” 

Defendant also asked for transcripts of prior hearings to file a writ, listing all 

of the hearing dates. 

The court ruled the peremptory challenge under Penal Code section 

170.6 filed that day was denied as untimely, as was the challenge defendant

had filed a few days earlier. The court told defendant it was to his benefit to 

stay in the courtroom while the jury was selected. Defendant interjected 

again “I refuse,” and the court said: “If you insist on being removed for your 

jury trial, I’m prepared to go ahead and continue picking a jury in your 

absence.”

Defendant reiterated his refusal to participate and insulted the court.10 

Unfazed, the court responded, “So, Mr. Tamrat, do you want to sit here 

while we pick a jury?” Defendant responded in the same vein. The court 

continued, “I heard you twice before that. . . . [¶] And you’re trying whatever 

you need to do to get some reaction from me so you can challenge me in the 

case. [¶] So the question is are you prepared to sit down here while we pick a 

jury?” 

Defendant said, “By law, I have that right to refuse to participate. 

[¶] And I asked—let the record reflect that I asked to have more time as far 

as this is judgment—this is cause right here to waive this jury panel 

selection. . . . [¶] That’s how I feel about your courtroom. I spit on the floor.” 

The trial court sought to clarify whether defendant was seeking a 

continuance and waiving his right to a speedy trial; the court indicated jury 

10 He said, “I will not come back to court again. . . . [¶] You can go on 

with this illegal proceeding, you piece of shit. Go ahead. I’m not worried 

about it. That’s what you are. You are a white devil with this little cracker 

system. You’re nothing but a white devil that abuses authority. You’re a 

piece of shit. And you know that.” 
17

selection would begin if not. Defendant did not respond directly but stated, “I 

choose to exercise my right to not participate in—I do not want to be in this 

illegal—this corrupt courtroom. [¶] So you may go ahead and cuff me up and 

get me out of here.” The bailiff and defendant’s investigator urged defendant

to stay seated. Defendant responded, “I refuse to participate in this illegal 

corrupt courtroom.” 

The judge responded, “All right. Then let’s bring our jury panel in if we 

could[,] so we can start up the jury selection process.” Without prompting, 

defendant said, he wanted to be taken "back to my cell.” 

Th trial court cautioned that he thought this “is not a good idea on your 

part. I think the jury would want to see you and actually hear from you in 

this case.” And again the court asked, “do you want to sit here and be part of 

these proceedings or do you want to be taken back up to your cell.”

Defendant said, “I refuse to take part and I will be filing a habeas 

corpus because you’re holding me hostage at this point. And I’m definitely 

filing that misconduct to the judicial commission of San Francisco.” He 

reiterated his request for transcripts of all of the proceedings. 

After defendant left the courtroom, with the prosecutor, defense 

investigator and court staff present, the trial court made “some observations

. . . so the record is more clear in this case.” The judge said: “While Mr. 

Tamrat was being asked by me whether or not he would participate in this 

trial, he got up out of his chair. The bailiffs asked him to get back into his 

chair. He did not physically resist, but did not get back in his chair.

“He then sat down in his chair, I think primarily at the urging of Mr. 

Hopkins [investigator], and started formulating spit in his mouth where my 

bailiff pulled out a spit guard in case he was going to spit. He then, I believe, 

dribbled some spit onto the ground from his chair.
18

“There was further discussion. He then got up again. The bailiffs 

again ordered him back in his chair. Again, I believe he got back in his chair 

because Mr. Hopkins encouraged him to do so and he got back in his chair.”

As to defendant’s self-representation, the prosecutor commended the 

court for “zealously safeguard[ing defendant’s] right to represent himself,” 

but believed there was good cause for a continuance (presumably to appoint 

counsel) because defendant was “completely unable to abide by rules of 

procedure and courtroom protocol . . . .” 

Following a recess, defendant was back in the courtroom, along with 

his investigator and the prosecutor, and the court noted defendant agreed to 

be there. The court made clear the trial would go forward whether defendant

was present or not and explained the mechanics of how it would proceed in 

his absence, concluding “I just want you to be aware without you being here, 

all of those things are going to happen. [¶] So do you wish to be removed 

from the courtroom and back to your cell?” Defendant said “[y]es, I do,” and 

engaged in more name calling against the judge, stating he was being “held 

hostage” by the judge. 

The prosecutor suggested the court could deny a request for selfrepresentation “when the defendant is unable or unwilling to . . . abide by 

rules of procedure and courtroom protocol,” citing a treatise. He observed the 

record was “replete with disorderly, disruptive and disrespectful behavior 

evidencing an inability or unwillingness to abide by rules of procedure and 

courtroom protocol” and, further, even if a defendant is competent to stand 

trial, he “may not be competent to conduct the trial proceedings by himself 

and may be denied the right of self-representation.” 

Defendant objected to the prosecutor’s statements and chastised the 

court as “corrupt, tainted, you perform misconduct.” At that point the trial 
19

court addressed the bailiff and asked that defendant be taken back to his cell. 

Before he left the courtroom, defendant once again told the court that it was 

breaking the rules and called him a “wannabe” judge. 

The prosecutor then stated that the “prudent course of conduct at this 

point is that [Mr. Tamrat] be denied his right to continue with selfrepresentation, that we have a Public Defender appointed, and we go through 

that process, whatever that process looks like, whether it involves an 

eventual Marsden motion, whether it involves ultimately him representing 

himself. [¶] We’re not going to continue to invite jurors down to the 

courthouse and go through this rigamarole indefinitely, but the more robust 

record that we have built, the safer we are going to be if and when reviewed 

by an appellate Court.” 

The court disagreed with the prosecutor’s suggestion that defendant 

was not competent to represent himself. The court explained its “view of the 

case after researching this issue” as follows. “We have started this trial. We 

started the trial with in limine motions on September 16th and we went 

through three full days of in limine motions with Mr. Tamrat as well as [his 

investigator] being present. . . . [¶] Mr. Tamrat during that period of time 

exhibited to me an understanding, a rudimentary understanding, of the law. 

He filed in limine motions, he argued in limine motions, and in this Court’s 

opinion had done research while in custody, had written up his own motions, 

he had written up a motion to suppress and participated in the motion to 

suppress which was during our in limine motions in which a witness was on 

the stand and which he questioned the witness I believe in a substantive 

way. [¶] So therefore, I do believe that he is competent to—still competent to 

represent himself.
20

“It was not until he came close on the day of trial, which was the trial 

call on Friday, the 20th, that he filed his disqualification declaration, and 

then on the actual day to select a jury when the Court issued its order 

striking the disqualification, Mr. Tamrat continued on with a theme that he 

has utilized since February in this case when he went in pro per, February 

2019, that the trial was bias[ed], the participants in the trial were bias[ed] 

against him, and this has been a continuing theme with him.

“He has expressed that the jail personnel are bias[ed] against him, 

have violated his rights. He has expressed numerous times that this Court 

has violated his rights and that he could not get a fair trial. He has 

continually, I believe, had the philosophy that because of who he is, he could 

not get a fair trial in any courtroom no matter where it was.

“So with that, I’m bringing that up because this is not new or aberrant 

behavior on his part. This is consistent throughout, and when I bring up that 

it’s been consistent throughout, it is however you want to term it on his part 

a consistent philosophy that he has brought to these proceedings.

“So he has totally requested that he represent himself. The Court has 

explored with him the danger of doing so a number of times. He has refused 

the Court’s invitation to have counsel appointed for him. When counsel was 

appointed for him, we had a Marsden motion for him to remove that counsel, 

and when that was not granted, he then went in pro per.

“So with that said, I believe he knows what he’s doing. I believe his 

conduct is calculated here to what he’s doing and is consistent with his belief 

that he cannot get a fair trial even if he participated in any way, shape or 

form in this case.” 

The court concluded that “[defendant] has voluntarily absented himself 

from these proceedings. I believe if I were to go down the road that [the 
21

prosecutor] is suggesting in the case, that we would be here a year from now 

in the same situation, and just as [the prosecutor] said, where we might be, 

who knows, with a jury being out in the hallway and with that uncertainty. 

[¶] [Defendant] is not going to run my courtroom, and so I’m going to run my 

courtroom and we are going to start up with jury selection.”

The prosecutor noted that the court had given defendant “repeated 

opportunities to simply ask the Court for more time and he has failed to do 

that” and then submitted on the court’s ruling 

The next morning, when the court called the matter for jury trial and 

defendant was not present, the court (outside the jury’s presence) asked for a 

report on defendant’s status. The bailiff told him that defendant had gotten 

dressed in his civil clothes but then told jail staff he did not want to be in 

court today and would be there tomorrow. The court stated that “the Court 

made an order that Mr. Tamrat be dressed out and be ready to come into 

Court this morning at 10:30 a.m. Again, Mr. Tamrat has decided to absent 

himself from these proceedings, and the Court is prepared to go forward with 

the proceedings in his absence.” 

The next court day, defendant did appear. Outside the presence of the 

jury, the court asked him if he intended to present a case (the prosecution 

having finished its case) and whether defendant would stipulate that two 

documents could be admitted in evidence. Defendant responded by objecting 

“to everything going on in this kangaroo court with this trial” and 

maintaining that the proceedings were unlawful “since I filed my . . . 

disqualification motion.” The court checked whether defendant was going to 

give an opening statement or present witnesses, and defendant again 

objected to “this illegal and unlawful proceeding taking place which is this 

trial.” Defendant then asked to file a motion to dismiss for vindictive 
22

prosecution and “head back to my cell,” objecting to “being here in this 

kangaroo courtroom.” He said, “you got to cheat me to beat me” as he left the 

courtroom. 

On December 19, defendant was present in the courtroom for post-trial 

proceedings. The case had been continued to that day for defendant to 

prepare a motion for new trial, but on December 19 he stated he wanted a 

ruling on his Penal Code section 1385 motion to dismiss. Defendant stated 

that he already knew the court would deny the motion because “you’re 

corrupt” and “not an honorable judge,” and it had been a “kangaroo 

courtroom” since “the start.” The court put the matter over for ruling and 

possible sentencing later that afternoon. Defendant stated, “you’re white 

devils” and, “you cost me a lot of losses,” accusing the court and the 

prosecutor of “working together to falsely imprison me, man, but it’s gonna 

cost you, I guarantee that. It cost me my job, my tax return money. It cost 

me a bunch of losses.” Defendant would not come to court at 1:30 p.m., so the 

court continued the matter. 

On December 27, defendant was in court for sentencing. First the court 

heard lengthy argument from both sides on the Penal Code section 1385 

motion. The court explained its reasoning and denied the motion, which 

again resulted in defendant calling the court names. The trial judge stated, 

“The Court does believe Mr. Tamrat has explained at various times . . . that 

he suffers from posttraumatic stress disorder as a result of either his 

upbringing or his time in custody, and the Court does acknowledge that . . . 

and would give credibility to that aspect of Mr. Tamrat’s behavior, or it’s a 

reason for his behavior and personality. And so the Court did consider that

aspect of Mr. Tamrat’s background and experience, but that was not 

sufficient to overcome the serious nature of this case and the strike.” 
23

Defendant continued to argue against the ruling and the prosecutor’s view on 

sentencing. The trial court repeatedly asked defendant for his view on his 

sentence, and he said “For me being falsely imprisoned and you . . . trying to 

protect other white people, your fellow white men, for committing a battery 

on me . . . on video camera . . . [¶] that they manipulated, edited and 

tampered with on top of that?” Defendant went on, “The appropriate 

sentence? So this is like comedy for you . . . .” Defendant said that the court

should dismiss all charges because he was “falsely imprisoned.” 

When the court stated, “Mr. Tamrat, nothing further,” defendant

replied with more epithets. 

The court asked the bailiff to remove defendant from the courtroom, as 

defendant continued to utter expletives and rude remarks. Defendant’s spit 

hit the court reporter, but not the court.

The court then completed pronouncement of the sentence, without 

defendant present. As to factors in mitigation, the court stated, “I do believe 

that Mr. Tamrat suffers not from a psychiatric condition but from some other 

condition in which he feels validly to him. The Court doesn’t find this in 

either the prosecution in this case or otherwise, but Mr. Tamrat genuinely 

feels that he is victimized both because of his race and his socioeconomic 

status. In this matter he did not use . . . an attorney in the case, which I 

believe severely prejudiced his matter from not only the trial in the case” but 

also in posttrial motions to place him in a better position for sentencing. The 

court stated “for that reason,” it sentenced him to the mid-term on count 1, 

imposed the remaining sentences concurrently, and exercised its discretion to 

strike defendant’s five-year prior serious felony conviction under Penal Code 

section 667, subdivision (a). While the prior strike was for a violent offense, 

“the underlying case here, again, was Mr. Tamrat, I believe, acting out after 
24

being confronted and aggravating the situation again because, I believe, he 

feels victimized because of his race and socioeconomic status.” 

DISCUSSION

A.

Defendant does not contend he was incompetent to stand trial. He does 

not contest that his Faretta waiver was voluntary, knowing and intelligent. 

He does not claim there was error in his absence from the trial.11 He does not 

allege any errors in the conduct of the trial or his sentence. Defendant raises 

one narrow claim: the trial court “abused its discretion in failing to order an 

evaluation or a hearing to assess [defendant’s] competence to represent 

himself.”

The Sixth Amendment right to a defense necessarily includes the “right 

to self-representation.” (Faretta, supra, 422 U.S. at p. 819.) “In Indiana v. 

Edwards (2008) 554 U.S. 164 (Edwards), however, the United States 

Supreme Court held that states may, but need not, deny self-representation 

to defendants who, although competent to stand trial, lack the mental health 

or capacity to represent themselves at trial—persons the court referred to as 

‘gray-area defendants.’ ” (People v. Johnson (2012) 53 Cal.4th 519, 523

(Johnson).) “Edwards described competence to represent oneself at trial as 

11 By statute, a defendant can waive his right to be present at trial in a 

non-capital felony case where he voluntarily absents himself from trial. (Pen.

Code, § 1043, subd. (b)(2).) Moreover, although it did not happen here, 

defendant could have been removed from the trial if, “after he has been 

warned by the judge that he will be removed if he continues his disruptive 

behavior, [he] nevertheless insists on conducting himself in a manner so 

disorderly, disruptive, and disrespectful of the court that the trial cannot be 

carried on with him in the courtroom.” (Pen. Code, § 1043, subd. (b)(1); see 

People v. Espinoza (2016) 1 Cal.5th 61 [trial court did not abuse its discretion 

in proceeding with trial when self-represented defendant voluntarily 

absented himself from trial].)
25

the ability ‘to carry out the basic tasks needed to present [one’s] own defense 

without the help of counsel.’ [Citation.] It . . . said the states may deny selfrepresentation to those competent to stand trial but who ‘suffer from severe 

mental illness to the point where they are not competent to conduct trial 

proceedings by themselves.’ [Citation.] Although asked to ‘adopt a more 

specific standard,’ the high court declined to do so.” (Johnson, supra, 53 

Cal.4th at p. 530, italics added.)

The California Supreme Court in Johnson also explicitly declined to 

adopt a more specific standard. “[W]e believe the standard that trial courts 

. . . should apply is simply whether the defendant suffers from a severe 

mental illness to the point where he or she cannot carry out the basic tasks 

needed to present the defense without the help of counsel.” (Johnson, supra, 

53 Cal.4th at p. 530.)

12

The Johnson court then discussed how this would work in practice. “A 

trial court need not routinely inquire into the mental competence of a 

defendant seeking self-representation. It needs to do so only if it is 

considering denying self-representation due to doubts about the defendant’s 

mental competence. When a court doubts a defendant’s competence to stand 

trial, it ‘shall appoint a psychiatrist or licensed psychologist, and any other 

expert the court may deem appropriate, to examine the defendant.’ (Pen. 

Code, § 1369, subd. (a).) Similarly, when it doubts the defendant’s mental 

competence for self-representation, it may order a psychological or psychiatric 

examination to inquire into that question. To minimize the risk of improperly 

12 The issue in Johnson was “may California courts deny selfrepresentation when Edwards permits such denial?” And if so, whether the 

trial court in Johnson had properly denied self-representation in that case. 

(Johnson, supra, 53 Cal.4th at p. 525.) The Johnson court answered both 

questions in the affirmative.
26

denying self-representation to a competent defendant, ‘trial courts should be 

cautious about making an incompetence finding without benefit of an expert 

evaluation, though the judge’s own observations of the defendant’s in-court 

behavior will also provide key support for an incompetence finding and 

should be expressly placed on the record.’ ” (Johnson, supra, 53 Cal.4th at 

pp. 530-531, italics added.)

The Johnson court admonished that “[t]rial courts must apply this 

standard cautiously. . . . Criminal defendants still generally have a Sixth 

Amendment right to represent themselves. Self-representation by 

defendants who wish it and validly waive counsel remains the norm and 

many not be denied lightly. A court may not deny self-representation merely 

because it believes the matter could be tried more efficiently, or even more 

fairly, with attorney on both sides. Rather, it may deny self-representation 

only in those situations where Edwards permits it.” (Johnson, supra, 53 

Cal.4th at p. 531, italics added.)

We review a court’s determination on self-representation with a large 

degree of deference. “As with other determinations regarding selfrepresentation, we must defer largely to the trial court’s discretion. 

[Citations.] The trial court’s determination regarding a defendant’s 

competence must be upheld if supported by substantial evidence. [Citation.] 

Such deference is especially appropriate when, as here, the same judge has 

observed the defendant on numerous occasions. ‘[T]he trial judge . . . will 

often prove best able to make more fine-tuned mental capacity decisions, 

tailored to the individualized circumstances of a particular defendant.’ 

(Edwards, supra, 554 U.S. at p. 177.)” (Johnson, supra, 53 Cal.4th at pp.

531-532.)
27

The parties do not dispute that Johnson governs the standard for when 

a defendant who is competent to stand trial may nonetheless be precluded 

from self-representation, nor do they dispute that we review the trial court’s 

decision for abuse of discretion. Where they disagree is that defendant

asserts the trial court had a continuing obligation to monitor him for 

competence to represent himself, while the Attorney General argues trial 

courts do not have such a duty. We need not resolve this dispute because, 

even assuming the trial court had a continuing duty to assess defendant’s 

competence for self-representation, we find no abuse of discretion on the 

evidence presented here.13

Under the Johnson test, we ask whether the trial court abused its 

discretion in concluding that it did not have before it a defendant who 

suffered “from a severe mental illness to the point where he [could not] carry 

out the basic tasks needed to present the defense without the help of 

counsel.” (Johnson, supra, 53 Cal.4th at p. 530.) We conclude it did not.

At the outset of his self-representation, defendant completed a written 

Faretta waiver indicating that he did “not have any mental illness or 

disability or have taken any drugs, medicine or alcohol that would impair 

[his] abilities.”14 At the September 16 hearing on courtroom security,

13 In his opening brief, defendant contended that a trial court has a 

continuing obligation even after a Faretta motion is granted to monitor a 

defendant’s competence to represent himself, and must order a mental health 

exam “ ‘if the evidence of mental incapacity is “compelling.” ’ ” But as the 

Attorney General points out, the sole authority for this proposition was a 

citation to a concurring opinion in People v. Powell (1986) 180 Cal.App.3d

469, 484, a case that long predates Johnson and Edwards. Defendant does 

not dispute in his reply brief that he cited to a concurring opinion, nor does 

he defend the point further. 

14 In a footnote, defendant suggests there was something questionable 

about this statement, since given the way the form was worded, defendant
28

Sergeant Patrick, who testified as a jail classification expert, explained that 

defendant’s classification meant “you do not have major mental health 

concerns.”

15 

From February through to the trial in September, as we have detailed 

above, defendant litigated his case. He made and argued motions covering 

the panoply of his rights as a criminal defendant, including among others a 

Penal Code section 995 motion, discovery motions, a Pitchess motion, and a 

motion to suppress. He requested, obtained, and worked with, a courtappointed investigator. He subpoenaed witnesses. He cross-examined 

witnesses at evidentiary hearings. When the judge explained court 

procedures and his rights, such as jury selection and use of prior testimony 

for impeachment, he evidenced understanding, made connections to earlier 

court proceedings, and said he understood. 

Defendant demonstrated persistence and legal knowledge. He argued 

points, cited authority, and won some motions. The trial court described the 

in limine motions as addressing “somewhat sophisticated legal issues.” 

Indeed, defendant acknowledges in his brief before us that defendant was 

“diligent in his written advocacy, filing a multitude of pleadings.” 

checked “no” in response to the statement, “I do not have any mental illness 

or disability or have taken any drugs, medicine, or alcohol that would impair 

my abilities.” The trial court interpreted the response as meaning he did not 

have a mental illness. But this argument is a makeweight. 

To the extent, defendant is now suggesting he actually told the court 

the opposite because he checked the box for “no” rather than “yes,” the 

transcript of the hearing demonstrates the court and defendant understood 

that he was claiming he was able to represent himself and was not impaired 

by mental illness. 

15 Defendant, too, was adamant he was “not a mental health issue,” and 

denied he had ever talked with jail mental health staff. 
29

Defendant’s theme from the beginning of the proceedings and to its 

conclusion was that he was pepper sprayed unreasonably at the shopping 

mall, reacted as he did on account of his PTSD, lost his job as a result of the 

arrest, and was falsely imprisoned. This theme was consistent with his 

distrust that he could get a fair resolution in the legal system, which was also 

apparent from the beginning of the criminal proceedings. He did not trust 

his jailers who he said mistreated him and against whom he allegedly filed 

grievances. He had multiple negative experiences with public defenders and 

made Marsden motions. He did not trust the authenticity of the videotape 

evidence; he was concerned the prosecutor might tamper with evidence. He

came to believe that the judge was biased against him, and belatedly 

attempted to exercise a peremptory challenge and then disqualify the judge. 

He did not believe the court followed the correct procedure in addressing the 

disqualification issue. He did not think he could get a fair trial from a jury. 

But distrust of authority is not necessarily a sign of mental illness. As the 

court observed, defendant’s sense that the trial was “rigged against him” may 

stem “from Mr. Tamrat’s own personal experiences that he is relating to.” 

Defendant’s behavior was sometimes rude and obstreperous, and he 

sometimes resorted to insults and profanity, but as Sergeant Patrick 

observed, defendant’s outbursts usually came after he “receive[d] negative 

information or things d[id] not go in the direction he” wanted. Again, the 

court reasonably could have determined defendant’s verbal outbursts were 

not evidence of mental illness. And although voicing disrespect may have 

undermined the effectiveness of his advocacy and risked being subjected to 

sanctions (which were never imposed), it did not mean defendant was 

incompetent to represent himself. (See People v. Taylor (2009) 47 Cal.4th
30

850, 866 [“self-representation more often than not results in detriment to the 

defendant, if not outright unfairness”].)

16 

Defendant argues his statement about the FBI, his uncle’s statement 

about his paranoia, the testimony at the courtroom security hearing about his

behavior in jail, and his decision to absent himself from trial compel the 

conclusion that he was “incompetent to represent himself.” The Attorney 

General responds that even assuming defendant’s statements about the FBI 

and the uncle’s statements were indicative of “mental instability” that does 

not mean defendant was unable to “ ‘carry out the basic tasks needed to 

present the defense without the help of counsel,’ ” citing Johnson, supra, 53 

Cal.4th at page 530. We think the Attorney General has the better 

argument, in light of all we have described about defendant’s consistent

ability to actually carry out the basic tasks of his defense all the while 

displaying some conspiratorial and perhaps paranoid views.

Further, the trial judge’s contemporaneous observations are critical. 

As of September 17, the trial judge estimated defendant had appeared before 

him 20 times or more. The court characterized the motions in limine 

hearings as “almost three full days with Mr. Tamrat discussing somewhat 

sophisticated legal issues,” and noting he “seems to be following along.” 

Addressing directly the issue of defendant’s announcements that the 

proceedings were rigged against him, the court said this could “show some 

paranoia,” but “this can also be from Mr. Tamrat’s own personal experiences 

that he is relating to,” an apparent reference to the circumstances that led to 

16 We can only speculate how defendant would have conducted himself 

if he had not voluntarily absented himself from the courtroom. But that is 

not our inquiry here. A defendant in a felony case such as this one has a 

right not to be present, defendant here chose that course, and he does not 

raise his absence as an alternative ground for appeal.
31

defendant’s arrest and prosecution in this case. Based on what the court had 

observed, defendant’s “comments about a chip in his body from the FBI” did 

not “interfere with his ability to understand the nature of the charges and to 

represent himself in this matter.” Defendant agreed with this point, and 

without profanity. About a week later, as jury selection was about to begin 

without defendant, the trial court reiterated its reasons for finding defendant 

competent to represent himself, notwithstanding defendant’s decision to 

absent himself from the proceedings. The court characterized that decision 

as “not new or aberrant behavior.” Rather, “he knows what he’s doing . . . his 

conduct is calculated here . . . and is consistent with his belief that he cannot 

get a fair trial even if he participated in any way.” 

The trial court also suspected gamesmanship on defendant’s part. 

Faced with an increasing barrage of verbal insults from defendant as jury 

selection loomed, the trial court, patient throughout, observed that defendant 

was “trying whatever you need to do to get some reaction from me so you can 

challenge me in this case.” To the trial court’s credit, it persisted with 

patience and solicitude.17

Defendant points to the prosecutor’s statement that by absenting 

himself from trial, defendant put any conviction at risk and that the most 

prudent course might be to revoke his right to represent himself to protect 

the record. But in the end, after the trial court explained why it would 

proceed with the jury trial, as we have described above, the prosecutor 

submitted on the court’s ruling. 

17 Defendant was already planning for writs and his appeal, requesting 

transcripts and telling the court in objection to one ruling that if he was 

denied the relief he sought that was “about . . . the 10th reason I could appeal 

this case if I get falsely convicted.” 
32

In sum, defendant exercised and persistently maintained his right to 

represent himself. The trial court repeatedly offered to appoint the public 

defender throughout the proceedings, and defendant repeatedly rejected this 

option. The trial court on this record did not abuse its discretion in allowing 

the self-representation to proceed without holding a mental competency 

hearing. 

B.

Senate Bill No. 567 (2021-2022 Reg. Sess.) amends Penal Code section 

1170 effective January 1, 2022. Newly enacted section 1170(b)(6) provides in 

relevant part, “[U]nless the court finds that the aggravating circumstances 

outweigh the mitigating circumstances that imposition of the lower term 

would be contrary to the interests of justice, the court shall order imposition 

of the lower term if any of the following was a contributing factor in the 

commission of the offense: [¶] (A) The person has experienced psychological, 

physical, or childhood trauma, including, but not limited to, abuse, neglect, 

exploitation, or sexual violence.” 

After we filed our initial opinion on November 30, 2021, we granted 

rehearing to consider defendant’s claim that he is entitled to a reduction in 

his sentence under section 1170(b)(6). The Attorney General recognizes the 

new sentencing provision applies to defendant. Because the new law is 

ameliorative and defendant’s case will not be final by January 1, 2022, we 

agree with the parties that defendant is entitled to the benefit of section 

1170(b)(6). (See People v. Conley (2016) 63 Cal.4th 646, 657 [under the rule of 

In re Estrada (1965) 63 Cal.2d 740, 744-745, courts infer, “in the absence of 

contrary indications, a legislative body ordinarily intends for ameliorative 

changes to the criminal law to extend as broadly as possible, distinguishing 

only as necessary between sentences that are final and sentences that are 
33

not”]; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308–309 [applying 

Estrada rule and concluding Proposition 57 applied retroactively because it 

was an ameliorative change to the criminal law and nothing in the law 

rebutted inference of intent to extend the benefit as broadly as possible].) 

Defendant argues that remand is not necessary because the trial 

court’s findings at sentencing “conclusively establish that [he] is entitled to a 

lower term” under the new law and, therefore, the Court of Appeal can 

resentence defendant. (Italics added.) We are not prepared to reach this 

conclusion without remanding to the trial court. When the trial court 

sentenced defendant, section 1170(b)(6) had not been enacted, and thus the 

court had no reason to consider such issues as whether defendant 

experienced trauma that was “a contributing factor in the commission of the 

offense[s]” and whether “aggravating circumstances outweigh the mitigating 

circumstances” such that “imposition of the lower term would be contrary to 

the interests of justice” as specified under the new law. The trial court is in a 

much better position than we are to make these factual findings and so we 

will remand the matter to allow the trial court to sentence defendant under 

section 1170(b)(6) in the first instance. 

DISPOSITION

The sentence is vacated and the matter is remanded to the trial court 

to sentence defendant under Penal Code section 1170 as amended by Senate 

Bill No. 567. The judgment is otherwise affirmed.
34

_________________________

Miller, J.

WE CONCUR:

_________________________

Stewart, Acting P.J.

_________________________

Kline, J.*

A159390, People v. Tamrat

* Assigned by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.