Filed 9/4/20 P. v. Johns CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

KENNETH JOHNS,

Defendant and Appellant.

 B296081

 (Los Angeles County

 Super. Ct. No. BA458893)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Mark S. Arnold, Judge. Reversed and 

remanded with instructions.

Jennifer Peabody, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, 

Senior Assistant Attorney General, Zee Rodriguez and Wyatt 
2

E. Bloomfield, Deputy Attorneys General, for Plaintiff and 

Respondent.

_______________________________________________

INTRODUCTION

Appellant Kenneth Johns was represented by counsel 

at his trial on charges of, inter alia, murdering one man and 

attempting to murder another. A jury convicted him on all 

charges. His counsel obtained a continuance of the 

sentencing hearing to prepare a potential motion for new 

trial, but decided against filing such a motion. Disagreeing 

with that decision, appellant made a “Faretta motion,” i.e., a 

motion to represent himself. (See Faretta v. California

(1975) 422 U.S. 806, 807 (Faretta).) Before allowing 

appellant to represent himself, the court secured appellant’s 

confirmation that he understood his counsel was better 

equipped to file a new trial motion. Otherwise, the court did 

not advise appellant of any risk of self-representation, and 

appellant demonstrated no understanding of any such risk.

The court granted appellant’s Faretta motion and 

continued the sentencing hearing for a second time. 

Appellant filed his new trial motion the same day. At the 

continued hearing, appellant made a request for a third 

continuance, which the court denied. The court also denied 

appellant’s new trial motion. It sentenced appellant to an 

aggregate term of 61 years to life and imposed a restitution 

fine, a criminal conviction assessment, and a court 

operations assessment. Appellant made no argument 
3

regarding his sentence and raised no objection to the 

imposition of the fine and assessments. 

On appeal, appellant contends: (1) the trial court 

violated his constitutional right to counsel by allowing him 

to represent himself in litigating his sentence and motion for 

new trial without first ascertaining whether his purported 

waiver of his right to counsel was knowing and intelligent;

(2) the court abused its discretion, in a manner amounting to 

a violation of several of appellant’s constitutional rights,

when it denied his request for a third continuance of the

sentencing hearing; and (3) the court violated appellant’s 

due process and Eighth Amendment rights by imposing the

restitution fine and assessments without determining his 

ability to pay. 

We agree with appellant’s first contention, finding that 

the trial court’s failure to advise appellant of any of the 

substantial risks of self-representation at sentencing 

prevented the court from ascertaining whether appellant 

knowingly and intelligently waived his right to counsel, and 

that the court’s granting of his Faretta motion therefore

violated that right. Though the parties disagree whether a 

constitutional violation of this nature is subject to 

harmless-error analysis, we decline to resolve this dispute, 

as reversal is required under each of the standards the 

parties advance. Accordingly, we reverse and remand for

resentencing. We decline to address appellant’s other 

contentions, but we note that appellant will have an 
4

opportunity on remand to object to the imposition of any fine 

or assessment on the ground of inability to pay.

PROCEEDINGS BELOW

A. Prosecution Case

The People charged appellant with the attempted

murder of Paul Smith (Pen. Code, §§ 187, subd. (a), 664; 

count one) and with an assault upon Smith with a deadly 

weapon, viz., a large wooden object (id., § 245, subd. (a)(1); 

count two). In connection with the attempted murder count, 

the People alleged that appellant used a knife as a deadly 

weapon and inflicted great bodily injury. The People further 

charged appellant with the murder of Gerald Richard 

Jackson (id., § 187, subd. (a); count three), alleging he 

caused Jackson’s death by intentionally discharging a 

firearm. Finally, the People charged appellant with the

possession of a firearm by a felon (id., § 29800, subd. (a)(1); 

count four). 

1. Gerald Jackson’s Murder

On June 23, 2017, around 5:56 a.m., Los Angeles Police 

Department (LAPD) officers responded to the scene of a 

reported shooting in Skid Row. They discovered Gerald 

Jackson, the shooting victim, who soon died of a gunshot 

wound to the chest. 

LAPD Detective Jonathan Vander Lee obtained 

surveillance videos from several cameras in Skid Row, which 

were played for the jury. One video showed a man shooting 
5

Jackson twice around 5:52 a.m. The shooter was wearing a 

black hoodie, a white shirt sticking out from underneath the 

hoodie, black pants, and black shoes. Other videos showed a 

man in similar clothing removing a bicycle from a tent near 

the scene of the shooting around 5:40 a.m., appearing to 

retrieve an object from behind the tent soon thereafter, and 

concealing that object in his pocket while proceeding toward 

the scene of the shooting. 

On July 5, 2017, while driving in Skid Row, Detective 

Vander Lee happened upon appellant. Believing that 

appellant resembled the shooter in the video, he arranged for 

other officers to contact appellant while he returned to a 

police station to watch appellant from surveillance cameras. 

In video from those cameras (which was played for the jury), 

appellant went to the tent from which the shooter had 

removed a bicycle. Appellant was arrested after he entered 

the tent. 

Jackson’s companion, Cathy Garcia, identified 

appellant, whom she had known for more than 20 years, as 

the man in the video from the day of the shooting. Garcia 

was called to a police station on the day Jackson was killed. 

After leaving the station, she encountered appellant, who 

had a gun and was wearing what she believed was a 

bulletproof vest. 

Two additional witnesses, each in custody at the time 

of trial, identified appellant as the man in the video from the 

day of the shooting. Appellant’s former girlfriend, Regina 

Davis, did so both in her trial testimony and in a recorded 
6

police interview that was played for the jury. She testified 

she did not want to testify, but she had been served with a 

subpoena and had been arrested when she refused to comply 

with it. Andrea Johnson similarly testified that she did not 

want to testify. Johnson denied knowing appellant, but in a 

recorded police interview that was played for the jury, she 

identified appellant -- whom she said she had known for 

more than 20 years -- as the man in the video from the day of 

the shooting. 

2. Paul Smith’s Attempted Murder and 

Assault

Paul Smith testified that on June 19, 2017, when he 

was giving food to an unhoused Skid Row resident outside 

the hotel where he lived and worked, appellant -- a stranger 

to him -- abruptly stabbed him in the abdomen with a knife. 

Appellant tossed the knife to another man and eventually 

departed on a bicycle. Smith pursued appellant with a pipe, 

initiated a brief fight with appellant and the man to whom 

appellant had thrown the knife, and returned to the hotel. 

While Smith waited for the police at the hotel, appellant 

sneaked up behind him and struck him with a large wooden 

object. Videos of the stabbing and bludgeoning were played 

for the jury. Smith’s stab wound required surgery. 

B. Defense Case

Appellant denied killing Jackson. He testified that at 

the time of Jackson’s shooting, he was in a tent with Terrie 
7

Smith and another woman. In her own testimony, Terrie 

Smith corroborated this alibi. 

Appellant also denied attacking Paul Smith. He 

testified that he confronted Smith after Smith slapped a 

friend of his, but Smith walked away. He implied that 

Smith might have been stabbed by another Skid Row 

resident who confronted Smith about the slap. Smith soon 

reappeared and struck Charles Allen, another of appellant’s 

friends, with a metal pole. In his own testimony, Allen 

corroborated appellant’s claim that Smith struck Allen with 

a pole. The surveillance video also corroborated this claim. 

Appellant acknowledged that he knew Johnson -- one 

of the prosecution witnesses who had identified him in a 

video from the day of the shooting, but at trial denied 

knowing him. He further confirmed that he had been having 

frequent phone calls with his friend Willie Meyers during 

trial, but denied plotting with Meyers to influence witnesses’ 

testimony. 

C. Prosecution Rebuttal Evidence

The People played recordings of calls placed by 

appellant, from jailhouse phones, to Meyers. On one call, 

appellant asked Meyers to arrange for a man to attend trial 

the next day “so [Johnson] and them can see . . . his face,” 

adding, “You know, a little threat.” On a later call, appellant 

said he was proud of Johnson for, inter alia, denying that 

she knew him. 
8

D. Closing Arguments and Verdicts

In closing, the prosecutor argued the “damning” video 

evidence established appellant’s guilt, especially in light of 

the testimony from multiple witnesses identifying appellant 

as the man in the videos. He argued appellant had 

intimidated witnesses, reflecting consciousness of guilt. 

Relatedly, he argued Johnson had denied knowing appellant 

on the stand (after identifying him before trial) because she 

was afraid to identify him as the shooter in his presence. 

Appellant’s counsel urged the jury to believe 

appellant’s denials of guilt, relying on the absence of 

evidence of motive and challenging the prosecution 

witnesses’ credibility. She argued appellant had made no 

attempt to intimidate witnesses, explaining that he 

repeatedly called Meyers during trial merely to offer running 

commentary to a friend. 

In rebuttal, a second prosecutor again emphasized the 

video evidence and identification testimony, and argued that 

Johnson had failed to identify appellant on the stand 

because she was afraid of him. 

On October 25, 2018, the jury convicted appellant on 

all counts, found the murder was premeditated and 

deliberate, and found the allegations associated with each 

count true. The court scheduled a sentencing hearing for 

December 3. 
9

E. Faretta Motion and Colloquy

At the December 3, 2018 sentencing hearing, 

appellant’s counsel requested a continuance to January 29, 

2019, for a potential motion for new trial. The court granted 

the continuance. Appellant’s counsel did not file a new trial 

motion.

At the outset of the January 29 hearing, appellant’s 

counsel informed the court that appellant wished to 

represent himself. The court engaged in the following

Faretta colloquy: 

“The court: Why would you want to do 

that? 

“[Appellant]: I have more evidence and I 

want to file a new trial motion. 

“The court: All right. Well, the trial is over. 

So how much of a continuance do you want?

“[Appellant]: Can I get 45 days?

“The court: No, it’s too much. You were 

convicted in October.

“[Appellant]: Okay. Well, give me two 

weeks.

“The court: Okay, two weeks. Do you think 

you can somehow do a better job than [your 

counsel] on your sentence?

“[Appellant]: I have no evidence yet.

“The court: What’s the new evidence[?]
10

“[Appellant]: Witnesses sent letters and I’m 

getting affidavits made up saying that they were 

coerced.

“The court: All right.

“[Appellant’s counsel]: He wants to do a 

new trial motion.

“[Appellant]: A new trial motion, that’s

what I want to do.

“The court: Okay. What day do [--] you 

don’t think you’d be better off giving the 

information to [your counsel] and let[ting] her file 

the motion? Because she knows how to file a 

motion, you don’t.

“[Appellant’s counsel]: Your Honor, we’ve 

discussed it and --

“The court: What?

“[Appellant’s counsel]: I said we’ve 

discussed it and that’s not something --

“The court: You understand [your counsel]’s 

in a better position to file a motion for new trial 

than you are? Do you understand that?

“[Appellant]: Yes.

“The court: You nevertheless want to 

continue -- you want to represent yourself?

“[Appellant]: Yes.

“The court: Okay. All right. You can 

represent yourself.” 
11

Having granted appellant’s Faretta motion, the court 

appointed appellant’s former counsel as standby counsel and 

continued the hearing to February 19. 

F. Sentencing and New Trial Motion

In a sentencing memorandum, the People asked the 

court to sentence appellant to a 50-years-to-life term on the 

murder count (doubled from a 25-years-to-life term as a 

result of the jury’s true finding on the firearm allegation), a 

consecutive 13-year term on the attempted murder count 

(comprising the high term of nine years and three- and oneyear enhancements for appellant’s infliction of great bodily 

injury and use of a knife as a deadly weapon, respectively), 

and a consecutive one-year term on the assault with a deadly 

weapon count. The People relied on purported aggravating 

factors under California Rules of Court, rule 421, including, 

inter alia, the facts that: (1) appellant inflicted great bodily 

injury, in that he “shot and killed” Jackson and “beat and 

stabbed” Smith; (2) appellant used weapons, viz., a gun, a 

knife, and a large wooden object; (3) appellant had engaged 

in a pattern of “violent conduct,” demonstrated by 21 prior 

convictions he sustained between 1988 and 2016; and (4) 

appellant had shown no remorse. Most of appellant’s prior 

convictions were for possession of cocaine for sale; with only 

two exceptions -- each a domestic violence offense -- the 

underlying offenses were nonviolent. 

The same day appellant’s Faretta motion was granted 

(January 29, 2019), he filed a handwritten motion for new 
12

trial. The motion was based on the following grounds: (1) 

the prosecutors and detectives coerced witnesses by 

threatening to incarcerate them or withhold compensation if 

they did not testify as they had been coached; (2) one of the 

prosecutors unlawfully communicated with a juror by 

mouthing “thank you” to the juror and exchanging smiles, 

waves, blinks, and nods; (3) the video evidence had been 

improperly altered in an unspecified manner; (4) the court 

improperly failed to instruct the jury on witnesses being 

under the influence of drugs; and (5) the court improperly 

failed to instruct the jury on in-custody witnesses. In 

declarations submitted in opposition to appellant’s motion, 

the prosecutors and Detective Vander Lee denied appellant’s 

accusations. 

At the outset of the February 19, 2019 sentencing 

hearing, appellant informed the court he was not ready to 

argue his motion for new trial, explaining, “I have a 

supplemental I want to do now that I’m in pro per.” After 

confirming that appellant was requesting another

continuance of the hearing, the court denied the request. 

Appellant protested, “You gave me pro per and I don’t even 

have my case file.” The court responded, “You asked to be 

pro per. If you have difficulties representing yourself and 

preparing at the jail, that’s one of the unfortunate things 

about being in custody. You’re the one that wanted to 

represent yourself.” 

The court denied the new trial motion, explaining, 

“[Appellant] was represented by very experienced counsel 
13

during the trial. The jury was properly instructed in all 

areas, including in-custody witnesses . . . . There’s no 

evidence that there was anything -- any misfeasance or 

malfeasance regarding the videos. There is no evidence they 

were altered, and they were properly authenticated. [¶] 

Regarding the contention that there was improper contact 

with Juror Number 7, that is baseless. There’s no evidence 

of that. [¶] There’s no evidence that any witness perjured 

themself [sic] or any witness was unduly coerced by police or 

any prosecutor. [¶] The motion for new trial is denied. 

There is no merit.” 

Appellant protested that Davis had testified she did 

not want to testify, and that he had obtained letters --

presumably including a letter from Davis -- since the trial. 

The court reviewed the letters and remarked, “These don’t 

tell us anything new. The in-custody witnesses [Davis and 

Johnson] didn’t want to be here. They didn’t want to 

testify.”1 Appellant added, “I also want -- in my 

supplemental I wanted to add about the misstatements of 

facts that [the prosecutor] did in front of the jury, as far as 

claiming that [Johnson] was scared. She never stated that 

she was scared to testify.” The court replied, “You’re an 

example of why people should not be representing themself 

[sic]. You were represented by a trained attorney. She knew 

1 The letters reviewed by the court are not in the record. The 

clerk of the superior court certified that the letters could not be 

located. 
14

what she was doing. You don’t know what you’re doing, but 

the law allows you to represent yourself.” 

The court immediately proceeded to impose sentence, 

without asking appellant whether he wished to argue his 

sentence. On the murder count (count three), the court 

sentenced appellant to a term of 50 years to life, comprising 

a base term of 25 years to life and an additional 25-years-tolife term resulting from the firearm enhancement. On the 

attempted murder count (count one), the court sentenced 

appellant to a term of 11 years, comprising the middle term 

of seven years and three- and one-year enhancements for 

appellant’s infliction of great bodily injury and use of a knife 

as a deadly weapon, respectively. On the assault with a 

deadly weapon count (count two), the court sentenced 

appellant to the middle term of three years, stayed pursuant 

to Penal Code section 654. Finally, on the felon-inpossession count (count four), the court sentenced appellant 

to the middle term of two years, to run concurrently with his 

sentence on the attempted murder count. The court also

imposed a victim restitution fine, a criminal conviction 

assessment, and a court operations assessment. The court 

articulated no reasons for any of its sentencing decisions. 

Appellant timely appealed. 

DISCUSSION

Appellant contends, inter alia, the trial court violated 

his constitutional right to counsel by allowing him to 

represent himself in litigating his sentence and motion for 
15

new trial without first ascertaining whether his purported 

waiver of his right to counsel was knowing and intelligent. 

We agree. Though the parties disagree whether a

constitutional violation of this nature is subject to harmlesserror analysis, we need not resolve this dispute, as reversal 

is required under each standard the parties advance. We 

therefore reverse and remand for resentencing.

A. Principles

A valid Faretta waiver requires “‘a finding that the 

waiver is knowing and voluntary, i.e., the accused 

understands the significance and consequences of the 

decision and makes it without coercion.’” (People v.

Frederickson (2020) 8 Cal.5th 963, 1002 (Frederickson).) To 

support such a finding, a trial court must “inform the 

defendant in general terms of the most common 

disadvantages” of self-representation. (Id. at 1003.) “‘The 

defendant “should at least be advised that: 

self-representation is almost always unwise and that the 

defense he conducts might be to his detriment; he will have 

to follow the same rules that govern attorneys; the 

prosecution will be represented by experienced, professional 

counsel who will have a significant advantage over him in 

terms of skill, training, education, experience, and ability; 

the court may terminate his right to represent himself if he 

engages in disruptive conduct; and he will lose the right to 

appeal his case on the grounds of ineffective assistance of 

counsel. [Citation.] In addition, he should also be told he 
16

will receive no help or special treatment from the court and 

that he does not have a right to standby, advisory, or 

cocounsel.”’” (People v. Ruffin (2017) 12 Cal.App.5th 536, 

544 (Ruffin).) Courts frequently require defendants to sign 

written forms including such admonitions before granting 

their requests for self-representation. (See, e.g., id. at 541;

Frederickson, supra, at 1004.) 

Where a defendant requests self-representation after 

trial, the Faretta inquiry “‘need not be as exhaustive and 

searching as a similar inquiry before the conclusion of 

trial[.]’” (People v. Burgener (2009) 46 Cal.4th 231, 242 

(Burgener).) Nevertheless, the trial court must ensure the 

defendant is aware of the potential dangers of 

self-representation. (See id. at 242-243 [circumstances that 

“defendant asked to represent himself for the limited 

purpose of the trial court’s reconsideration of his application 

to modify the [death penalty] verdict,” and that application 

had already been briefed, “did not relieve the court of its 

duty altogether to ensure that defendant be made aware ‘of 

the hazards ahead’ if he proceeded without the assistance of 

counsel”; trial court should have advised defendant “that the 

district attorney would be both experienced and prepared, 

that defendant would receive no special consideration or 

assistance from the court and would be treated like any 

other attorney, that he would have no right to standby or 

advisory counsel, [and] that he would be barred from 

challenging on appeal the adequacy of his representation”].) 

“‘[C]ourts must draw every inference against supposing that 
17

the defendant wishes to waive the right to counsel.’” (Ruffin, 

supra, 12 Cal.App.5th at 545.)

Some courts have held that a failure-to-warn Faretta

violation is a structural error requiring automatic reversal. 

(See Burgener, supra, 46 Cal.4th at 244.) On the other hand, 

our Supreme Court has assumed, without deciding, that a 

deficient Faretta colloquy may be harmless if the People 

show beyond a reasonable doubt that: (1) the defendant 

would have waived counsel even had he received adequate 

warnings; or (2) the outcome would have been no more 

favorable to the defendant even had he elected to be 

represented by counsel. (See id. at 244-245.) 

Appellant urges us to apply the automatic-reversal standard, 

while the People urge us to apply either or both of the 

harmless-error standards. We need not determine which 

standard applies because, as explained below, reversal is 

required under each of the proffered standards. 

B. Analysis

The trial court failed to ascertain whether appellant 

sufficiently understood the risks of self-representation to 

knowingly waive his right to counsel. The court did not 

provide appellant with any written advisement of the risks 

of self-representation. In the course of its brief oral colloquy, 

the court completed only two relevant exchanges with 

appellant. First, the court asked appellant if he believed he 

could “do a better job” than his counsel on his sentence, and 

appellant responded, “I have no evidence yet.” This response 
18

was a non-sequitur from which we can infer no 

understanding of the risks of self-representation at 

sentencing. Second, after informing appellant that he, 

unlike his counsel, did not know “how to file a motion,” the 

court asked appellant if he understood his counsel was in a 

better position to file a motion for new trial. Appellant said 

he understood this, and the court granted his motion. Thus, 

the court allowed appellant to represent himself at his 

sentencing hearing -- where he made no sentencing 

argument whatsoever -- without first ascertaining anything 

other than appellant’s stated understanding that his counsel 

was better equipped to file a new trial motion.

Faretta and its progeny required more. The risks of 

self-representation at sentencing were substantial; nothing 

before the trial court suggested appellant possessed the 

sophisticated legal knowledge necessary to address the 

court’s discretion in sentencing appellant’s homicide and 

related convictions, or to respond to the People’s arguments 

concerning the exercise of that discretion.2 As appellant’s 

current counsel observes, appellant “appeared unaware of 

any sentencing discretion the court had, including the ability 

2 Contrary to the People’s contention, appellant’s criminal 

history did not warrant an assumption that he understood the 

risks of self-representation. Although appellant had been 

sentenced for various nonviolent offenses and two domestic 

violence offenses, nothing in the record suggested he had 

experience with homicide sentencing, much less representing 

himself.
19

to strike or reduce the firearm enhancement pursuant to 

Senate Bill No. 620 and People v. Morrison (2019) 34 

Cal.App.5th 217, 221-225, the ability to impose concurrent 

terms on the attempted murder count, the ability to strike 

the great bodily injury or personal use enhancements 

attached to the attempted murder conviction, or the ability 

[to] strike fines, fees and assessments based on an inability 

to pay . . . .” Had appellant remained represented by counsel, 

his counsel might have objected to the imposition of the 

restitution fine and assessments under People v. Dueñas

(2019) 30 Cal.App.5th 1157 (issued weeks before the 

January 29, 2019 hearing at which appellant’s Faretta

motion was made and granted). Moreover, his counsel might 

have argued for a favorable exercise of the court’s sentencing

discretion, including by objecting to the People’s dual 

reliance on certain facts as both aggravating factors and 

elements of the offense or enhancement, the People’s 

reliance on appellant’s largely nonviolent criminal history as 

evidence of a pattern of “violent conduct,” and the People’s 

reliance on appellant’s lack of remorse. (See 3 Witkin & 

Epstein, Cal. Criminal Law (4th ed. 2020) Punishment, 

§§ 319-320 [discussing prohibitions on dual reliance on fact 

as both aggravating factor and as element of crime or 

enhancement]; id. § 322 [“prior criminality is distinct from 

prior violence”]; People v. Weber (2013) 217 Cal.App.4th 1041, 

1064 [trial court could not rely on defendant’s lack of 

remorse as aggravating factor, where defendant denied guilt 

and evidence of guilt was in conflict].) By representing 
20

himself, appellant risked forfeiting all sentencing arguments 

and potentially receiving a longer prison sentence.

Failing to address these risks, among others, the court 

advised appellant only that his counsel was “in a better 

position to file a motion for new trial.” It failed to advise him 

that he would receive no special assistance from the court 

(such as the continuance appellant later requested), that the 

People would be represented at sentencing by experienced 

and prepared counsel, or that he would be barred from 

raising appellate challenges to the adequacy of his 

representation (such as a challenge based on his failure to 

object to the restitution fine and assessments under People v. 

Dueñas, supra, 30 Cal.App.5th 1157). (See Burgener, supra, 

46 Cal.4th at 242-243 [faulting trial court for failing to 

deliver these admonitions, even though defendant sought 

self-representation only on already-briefed application to 

modify death verdict].) We conclude that in doing no more 

than extracting appellant’s concession that his attorney was

better equipped to file a new trial motion than he was, the 

court failed to ascertain whether appellant’s purported 

waiver of his right to counsel was knowing and intelligent, 

and thus violated his right to counsel by allowing him to 

represent himself.3

3 The Faretta cases on which the People rely are 

distinguishable. (See People v. Weber, supra, 217 Cal.App.4th at 

1045, 1057-1060 [record supported finding that defendant’s 

Faretta waiver was knowing and voluntary, where trial court 

ascertained that defendant understood “that he would be held to 

(Fn. is continued on the next page.)
21

Assuming, arguendo, that the court’s Faretta violation 

is amenable to harmless-error review, we reject both of the 

People’s arguments for finding the violation harmless 

beyond a reasonable doubt. First, we conclude there was a 

reasonable doubt whether appellant would have elected to 

remain represented by counsel had he been adequately 

advised of the risks of self-representation at sentencing. In 

arguing to the contrary, the People rely primarily on 

evidence that appellant had prepared his new trial motion 

prior to requesting self-representation. However, this 

preparation merely reflected appellant’s desire to file the 

motion -- not his hypothetical insistence on filing the motion 

in the face of adequate admonitions of the risks of 

the same standards as an attorney, that the trial court would not 

assist him in representing himself, and that another trial judge 

had recently allowed defendant to represent himself in a criminal 

case,” and trial court would have delivered additional 

admonitions had defendant’s repeated interruptions not thwarted 

its attempts to do so]; People v. Sullivan (2007) 151 Cal.App.4th 

524, 548-550 [defendant failed to satisfy his appellate burden on 

Faretta claim, where record included neither reporter’s transcript 

of Faretta hearing nor settled statement, requiring the Court of 

Appeal to presume that trial court regularly performed its 

Faretta duties].) Another, non-Faretta case on which the People 

rely is inapposite. (See Parke v. Raley (1992) 506 U.S. 20, 23-25, 

35-57 [Kentucky Court of Appeals did not err in finding that 

defendant knowingly and voluntarily entered guilty plea to

burglary charge, where defendant was represented by counsel 

when he entered plea and had been fully advised of his rights 

when he pleaded guilty to another burglary two years earlier].) 
22

representing himself at sentencing. Had he received such 

admonitions, he might have elected to remain represented 

by counsel even at the expense of filing his new trial motion, 

or revealed -- as his current counsel suggests -- that his true 

desire was for substitute counsel willing to file the motion. 

Second, we conclude there is a reasonable doubt whether 

appellant would have secured a more favorable sentence had 

he elected to remain represented by counsel. The court gave 

no reasons for any of its sentencing decisions, leaving us 

with no basis to find the court would have adhered to each 

decision in the face of all arguments counsel might have 

made. 
23

DISPOSITION

The judgment is reversed. The matter is remanded 

with instructions to appoint counsel to represent appellant 

in litigating his sentence and any post-trial motion he may 

choose to file, and to resentence appellant. Our instructions 

have no effect on appellant’s right to represent himself upon 

a knowing and voluntary waiver of his right to counsel.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

 MANELLA, P. J.

We concur:

WILLHITE, J.

CURREY, J.