Filed 10/13/20 P. v. Wafer CA5

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER LEON WAFER,

Defendant and Appellant.

F075412

(Super. Ct. Nos. F11900322, 

F16906924)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Glenda S. 

Allen-Hill and James Petrucelli, Judges.

†

Frank J. Torrano, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and 

F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Levy, Acting P.J., Meehan, J. and DeSantos, J.

†

Judge Allen-Hill presided on January 27, 2017, and February 6, 2017; Judge 

Petrucelli presided over all other hearings pertinent to this appeal.
2.

On December 5, 2016, defendant Christopher Leon Wafer was charged with 

criminal threats (Pen. Code,1 § 422 [count 1]); willful infliction of corporal injury upon a 

cohabitant (§ 273.5, subd. (f)(2) [count 2]); and witness dissuasion (§ 136.1, subd. (b)(2) 

[counts 3-5]). In connection with count 2, the information alleged he was convicted of 

spousal battery (§ 243, subd. (e)(1)) on November 20, 2012. On February 17, 2017, 

following a trial, the jury found defendant guilty as charged.2 At the March 20, 2017 

sentencing hearing, the trial court suspended imposition of sentence for three years and 

placed defendant on formal probation on the condition he serve concurrent one-year jail 

terms on each count, inter alia.3 Defendant filed a notice of appeal on April 3, 2017. 

In his opening brief, defendant contended the trial court’s grant of his request to 

represent himself and conduct his own defense pursuant to Faretta v. California (1975) 

422 U.S. 806 constituted reversible error. In a supplemental brief, he argued for 

retroactive application of section 1001.36. Under this provision, certain defendants 

suffering from mental disorders may be eligible for pretrial diversion (§ 1001.36, 

subd. (a)), defined as “the postponement of prosecution, either temporarily or 

permanently, at any point in the judicial process from the point at which the accused is 

charged until adjudication, to allow the defendant to undergo mental health treatment” 

(id., subd. (c)). “If the defendant has performed satisfactorily in diversion, at the end of 

the period of diversion, the court shall dismiss the defendant’s criminal charges that were 

the subject of the criminal proceedings at the time of the initial diversion.” (Id., 

subd. (e).)

1 Subsequent statutory citations refer to the Penal Code.

2

Immediately thereafter, at a violation-of-probation (VOP) hearing, the court 

judicially noticed the verdicts and found defendant failed to comply with conditions of 

probation.

3

In connection with defendant’s VOP case, the court revoked and then reinstated 

probation under the same terms and conditions. 
3.

We originally rejected defendant’s claims and affirmed the judgment.

The California Supreme Court granted review and remanded the case to us with 

directions to vacate our decision and reconsider the cause in light of People v. Frahs

(2020) 9 Cal.5th 618 (Frahs). We have done so. We now conclude defendant “is 

entitled to a limited remand for the trial court to decide whether he should receive 

diversion under section 1001.36.” (Id. at p. 625.)

STATEMENT OF FACTS

Beginning on May 1, 2016, defendant lived with his girlfriend N.B. and her two 

minor daughters. On June 30, 2016, N.B. opened defendant’s cell phone and found text 

messages to and from other women. She became upset and left the apartment with her 

children in tow because she did not want to be around him. N.B. subsequently texted 

defendant about her discovery. The two quarreled after she and her daughters returned to 

the apartment. Eventually, defendant’s voice grew louder and he uttered profanity. He 

then “smashed [a tablet computer] on the table” and “punched his TV.” N.B. became 

frightened. She went to her daughters’ bedroom and attempted to pacify her children, 

who were also scared. 

An hour later, when the commotion subsided, N.B. moved her daughters to her 

own bedroom. While the three were watching television to “get their mind off of what 

was going on,” defendant entered. He “went into the closet to start grabbing his stuff” 

and “kept . . . cursing at [N.B.].” At one point, defendant “swung at [N.B.’s chin].” 

Although he “missed . . . what he was aiming for,” he still scratched her right arm. 

Defendant was “verbally abusive and whatnot for about another few minutes” before he 

left the room. N.B. closed the door and ultimately fell asleep with her children. 

On the morning of July 1, 2016, defendant reentered N.B.’s bedroom “arguing” 

and “cursing,” which woke up N.B. He wanted her to drive him to the bank so he could 

withdraw some money he owed her and be “done with” her. N.B. agreed to do so and 

brought along her daughters. En route to the bank, defendant called N.B. “a bitch” and 
4.

“an ugly motherfucker.” He continued to curse on the ride home following the 

withdrawal. 

After N.B. parked her vehicle, she, her children, and defendant made their way to 

their apartment. Defendant continued screaming. Because several neighbors were 

around, N.B. implored defendant to lower his voice. He responded, “I don’t care about 

these neighbors, these neighbors could kiss my ass.” At some point, N.B. said, “[J]ust 

stop already, it’s enough, just stop.” Defendant retorted, “[S]hut the fuck up before I 

fuck you up.” N.B. was “shaken.” Once inside the apartment, she instructed a neighbor 

via text message to call the police. When the neighbor asked whether “everything [was] 

okay,” N.B. answered, “[N]o, I’m scared and I don’t want to call the cops in front of 

[defendant].” 

Approximately 15 to 20 minutes later, at or around 12:30 p.m., Fresno Police 

Officers Escareno and Yang arrived at the apartment. According to Escareno, N.B. 

“looked like she had been crying.” Escareno questioned defendant while Yang escorted 

N.B. outside. During the interview, defendant “became a little bit more upset.” He 

“started to raise his voice,” “started to . . . clench his fists,” “paced . . . back and forth,” 

and “was a little animated.” Defendant remarked “he hope[d] [N.B.] had made good 

allegations against him because when he got out, he was going to find her and he was 

going to fuck her up.” He was taken into custody. 

Between July 5 and July 26, 2016, defendant repeatedly phoned N.B. from jail. 

He told her to drop the charges. 
5.

DISCUSSION

I. Faretta motion

a. Background

On January 26, 2017, the public defender appearing on behalf of defendant 

declared a conflict of interest. The trial court relieved the public defender and appointed 

attorney Richard Esquivel to represent defendant in both the criminal prosecution and the 

VOP hearing (see ante, fn. 2). After the court scheduled a settlement conference on 

January 27, 2017, and tentatively scheduled a trial for January 30, 2017, defendant 

indicated he was unwilling to waive time and wanted to proceed with the VOP hearing. 

Esquivel—“against [defendant’s] wishes”—asked the court to “trail [the VOP hearing] 

behind the trial case” because he was “not prepared to commit malpractice and go 

forward on a hearing that [he was] not prepared for.” The court found good cause to 

“continue the VOP to January 30th to trail . . . the trial case . . . .” 

At the January 27, 2017 hearing, Esquivel advised the court:

“I spoke to [defendant] yesterday. I spoke[] to him today. It is his 

desire to go forward with trial. I’ve informed him that we’re not prepared 

to go forward with trial and I would be requesting additional time to review 

the file, speak to him before going to trial. [¶] I believe it is his desire at 

this point to represent himself and go forward.” 

When the court asked whether Esquivel was correct, defendant stated, “Yes.” The court 

instructed defendant to complete and file a document titled “ADVISEMENT AND 

WAIVER OF RIGHT TO COUNSEL (Faretta Waiver).” The document detailed 

several disadvantages of self-representation and the court’s recommendation to accept 

appointed counsel, inter alia. Defendant signed the form, certifying he “read, understood, 

and considered all of the above warnings,” “still want[ed] to represent [him]self,” and 

“freely and voluntarily g[a]ve up [his] rights to have a lawyer represent [him].” 

After the form was submitted, the following colloquy transpired in open court:
6.

“THE COURT: . . . . [¶] . . . [W]e need to discuss the motion to 

represent yourself, we call it a Faretta motion because that’s the case that 

established how we go about granting such a request. The law disfavors 

you representing yourself. [¶] [Do y]ou understand that . . . ?

“THE DEFENDANT: I understand.

“THE COURT: . . . . [¶] The Court would advise you that it is not 

in your best interest to represent yourself, that you should not do so but you 

have the right to represent yourself even after the Court admonishes that it’s 

not in your best interest. It’s certainly disfavored in the law for you to 

represent yourself. It’s very difficult for you to do that. Even if you have a 

law degree the Court would be telling you not to do that. [¶] You 

understand that . . . ? [¶] . . . [¶]

“THE DEFENDANT: Yes.

“THE COURT: Do you understand that it’s in your best interest to 

have counsel represent you?

“THE DEFENDANT: Yes.

“THE COURT: And despite all of that, you’re still asking to 

represent yourself?

“THE DEFENDANT: Yes.

“THE COURT: The Court will allow you to represent yourself in 

this matter, then the Court will grant that motion.” (Italics added.) 

Defendant later clarified he wanted to represent himself in the VOP hearing only. The 

court granted the Faretta motion as to the VOP hearing; Esquivel was still appointed to 

represent defendant in the criminal prosecution. The court scheduled the trial and VOP 

hearing for February 6, 2017. 

At the February 6, 2017 hearing, the following colloquy transpired:

“THE COURT: . . . . [¶] What’s the status on the jury trial?

“MR. ESQUIVEL: Your Honor, I’ve just got assigned out on a case

that times out before [defendant]’s. In addition, I simply wouldn’t be 

prepared to go forward on this case at any rate. I have to review his 

discovery, make sure all the investigation has been done. I’m going to ask 

to trail this to the 9th and see where we are in our trial. [¶] . . . [¶]
7.

“THE COURT: . . . [Y]ou understand that request?

“THE [DEFENDANT]: I do understand it, and I’m not waiving any 

time. He’s not prepared. I’m prepared to represent myself in both cases.

“THE COURT: Well, let me explain something . . . . Your case 

doesn’t time out until February 14th.

“THE DEFENDANT: I know.

“THE COURT: So it is my intention to trail this case within time to 

February 9th. Are you making a request to represent yourself on [the 

criminal prosecution]?

“THE DEFENDANT: Correct. If he’s not prepared, I got it.” 

Defendant submitted a second “ADVISEMENT AND WAIVER OF RIGHT TO 

COUNSEL (Faretta Waiver)” and the court conducted a hearing on the request later 

that afternoon. The following colloquy transpired:

“THE COURT: . . . . [¶] . . . [Y]ou have been through the issue of 

[the] Faretta [m]otion. The Court granted the motion for you to represent 

yourself in [the criminal prosecution], and then you brought it to my 

attention that you did not wish to represent yourself in [the criminal 

prosecution], only in the violation of probation case. [¶] Those 

circumstances have changed; is that correct . . . ?

“THE DEFENDANT: Correct.

“THE COURT: At this point in time you believe that you have the 

ability to represent yourself in the matter that’s going to trial . . . . [¶] Is 

that correct?

“THE DEFENDANT: Correct.

“THE COURT: And . . . you understand that it will be your 

responsibility to do a number of things that generally an attorney would be 

doing for you, and that’s, specifically, picking a jury, making 

determinations as to which, if any, motions need to be filed, motions in 

limine, in particular eliminating certain testimony. [¶] . . . [¶]

“THE DEFENDANT: Correct. [¶] . . . [¶]
8.

“THE COURT: The Court previously told you that I would 

encourage you not to represent yourself, that it’s not a smart move to 

represent yourself . . . , particularly in a felony matter, but in any type of 

proceeding, but you have read the form and it is still your request to 

represent yourself despite the Court’s strong admonition that you not do so. 

[¶] Is that correct?

“THE DEFENDANT: Correct.

“THE COURT: You are set for trial for tomorrow. Are you 

confirming that trial tomorrow?

“THE DEFENDANT: Yes.

“THE COURT: The matter then is confirmed for trial. [Defendant] 

is representing himself on tomorrow’s date. . . . [¶] . . . You continue to 

represent yourself in the matter that’s trailing, the misdemeanor violation of 

probation. [¶] Is that correct?

“THE DEFENDANT: Correct.

“THE COURT: And do you want that matter to continue to trail?

“THE DEFENDANT: I would like that matter to be over with.

“THE COURT: I understand that, and how would you like to go 

about having that matter over with?

“THE DEFENDANT: Um, I guess I don’t have no problem taking 

that to trial so, you know –

“THE COURT: It is set tomorrow for –

“THE DEFENDANT: Oh, okay, yeah.

“THE COURT: – Contested Hearing, that’s my recollection, so it’s 

really not trailing, it’s set tomorrow for Contested Hearing.

“THE DEFENDANT: Okay.” (Italics added.) 

On February 8, 2017, the second day of trial, the following colloquy transpired:

“THE COURT: . . . . [¶] All right. Now, the first issue I want to 

cover is that this will be a final opportunity . . . for you to let the Court 

know if you wish to have an attorney assist you. I have discussed this with 
9.

you off the record. You have assured the Court that you wish to represent 

yourself. Is that correct?

“[THE DEFENDANT]: Correct.

“THE COURT: I’ve also discussed with you that you will be held to 

the same standards as any other attorney from a procedural standpoint, and 

the appropriate instruction will be read to the jury regarding that. [¶] I 

have also instructed you that once this trial commences, that I would treat 

any requests for continuance as I would any other attorney in your 

circumstance. Do you understand all of that?

“[THE DEFENDANT]: Yes.

“THE COURT: And if, in fact, during this trial you request the 

assistance of counsel, you have made this determination knowingly and 

intelligently, and you wish to proceed knowing that I would not stop the 

trial because of your request for counsel. Do you understand that, sir?

“[THE DEFENDANT]: Yes.” 

On February 15, 2017, the sixth day of trial, after the prosecution rested, the 

following colloquy transpired:

“THE COURT: What are we going to do, . . . ?

“[THE DEFENDANT]: Put me on the stand.

“THE COURT: Well, if you want to testify –

“[THE DEFENDANT]: I sure do.

“THE COURT: All right. Now, I caution you, . . . –

“[THE DEFENDANT]: I don’t need no more of your caution. Let’s 

get this done. I’ve been doing a pretty good job so far, not bad for a

veteran with a brain injury. I know what I’m doing now, don’t I? Thank

you. I don’t need any more of your caution. I’m ready to testify.” 

b. Analysis

“ ‘A criminal defendant has a right, under the Sixth Amendment to the federal 

Constitution, to conduct his own defense, provided that he knowingly and intelligently 

waives his Sixth Amendment right to the assistance of counsel. [Citations.] A defendant 
10.

seeking to represent himself “should be made aware of the dangers and disadvantages of 

self-representation, so that the record will establish that ‘he knows what he is doing and 

his choice is made with eyes open.’ [Citation.]” [Citation.]’ ” (People v. Burgener

(2009) 46 Cal.4th 231, 240-241.)

Defendant contends his waiver was invalid because he was not warned about the 

maximum possible punishment that could be imposed if he were found guilty of the 

charged crimes. (See People v. Jackio (2015) 236 Cal.App.4th 445, 454-455.) Even 

assuming, arguendo, the trial court had an affirmative duty to admonish defendant about 

the maximum possible punishment, “we . . . reject defendant’s contention that the 

omission of this single piece of information from the court’s extensive colloquy with him 

about the hazards and risks of self-representation requires an automatic reversal.” 

(People v. Bush (2017) 7 Cal.App.5th 457, 474 (Bush).) 

“Although the denial of a proper request for self-representation has been 

determined to be structural error [citation], neither the federal Supreme Court nor the 

state Supreme Court has decided whether the granting of a request for self-representation 

based on an inadequate Faretta admonishment compels the same result. [Citations.] Our 

state courts that have addressed the question have applied the Chapman[4] harmless error 

standard. [Citations.] Although two California courts have applied automatic reversal 

following errors in allowing self-representation, the cases are readily distinguishable. In 

both instances the defendants received no self-representation warnings at all before being 

allowed to proceed without counsel. [Citations.]” (Bush, supra, 7 Cal.App.5th at p. 475, 

fns. omitted.)

“[B]efore a federal constitutional error can be held harmless, the court must be 

able to declare a belief that it was harmless beyond a reasonable doubt.” (Chapman, 

supra, 386 U.S. at p. 24.) In the instant case, defendant exhibited his unwillingness to 

4 Chapman v. California (1967) 386 U.S. 18 (Chapman).
11.

waive time even though his then-counsel Esquivel was newly appointed and was not 

prepared to proceed. As to both the VOP hearing and the criminal prosecution, defendant 

completed and signed Faretta waiver forms certifying he was freely and voluntarily 

relinquishing his right to have an attorney represent him. At multiple hearings and even 

at trial, he maintained he wanted to represent himself even though the court warned him 

about the difficulties and disadvantages of doing so. “[T]he record as a whole . . . 

convinces us beyond a reasonable doubt that defendant knew what he was doing in 

requesting self-representation, made his choice with eyes open, and would have done the 

same even if the court had advised him specifically about the maximum potential 

[punishment] on conviction.” (Bush, supra, 7 Cal.App.5th at p. 477, fn. omitted.)

II. Section 1001.36

In a supplemental brief, defendant argued for retroactive application of section 

1001.36. On the basis of People v. Craine (2019) 35 Cal.App.5th 744, disapproved in 

part by Frahs, supra, 9 Cal.5th 618, we originally held that section 1001.36 did not apply

retroactively to defendant’s case.

Prior to Frahs, there was a split among the appellate districts regarding the 

retroactivity of section 1001.36. (See Frahs, supra, 9 Cal.5th at p. 631, fn. 2.) In Frahs, 

our Supreme Court found “neither the text nor the history of section 1001.36 clearly 

indicates that the Legislature intended that the Estrada rule[5] would not apply to this 

diversion program” (id. at p. 624) and held that the provision applies retroactively to 

cases in which judgment is not yet final on appeal (ibid.).

On June 27, 2018, after defendant was sentenced, but while his case was still 

pending on appeal, the Legislature enacted section 1001.36, which took effect 

5

In In re Estrada (1965) 63 Cal.2d 740, the Supreme Court held that an amendatory 

statute lessening punishment for a crime was presumptively retroactive and applied to all 

persons whose judgments were not yet final at the time the statute took effect.
12.

immediately. (Stats. 2018, ch. 34, §§ 24, 37.) Thus, in view of Frahs, section 1001.36 

applies retroactively to the instant case.

“Having found that section 1001.36 applies retroactively, we must now consider 

the remedy.” (Frahs, supra, 9 Cal.5th at p. 637.) In Frahs, the Supreme Court 

recognized “the record on appeal is unlikely to include information pertaining to several 

eligibility factors” “[w]hen . . . a defendant was tried and convicted before section 

1001.36 became effective.” (Id. at p. 638; see § 1001.36, subd. (b)(1)(A)-( F) [criteria].) 

Thus, “requiring defendants to show they would meet all threshold eligibility 

requirements before the appellate court may remand the case to the trial court—which 

decides in the first instance whether a defendant is eligible for diversion—would be 

inconsistent with any sensible retroactive application of the statute.” (Frahs, supra, at 

p. 638.) The high court concluded “a conditional limited remand for the trial court to 

conduct a mental health diversion eligibility hearing is warranted when . . . the record 

affirmatively discloses that the defendant appears to meet at least the first threshold 

eligibility requirement for mental health diversion—the defendant suffers from a 

qualifying mental disorder [citation].” (Id. at p. 640; see § 1001.36, subd. (b)(1)(A).) 

Here, the record affirmatively discloses that defendant seems to suffer from a 

qualifying mental disorder. Accordingly, a conditional limited remand for the court to 

conduct a mental diversion eligibility hearing is warranted.

DISPOSITION

The judgment is conditionally reversed. The cause is remanded to the trial court 

with directions to conduct a mental health diversion eligibility hearing pursuant to section 

1001.36. If the trial court determines defendant qualifies for diversion, it may grant 

diversion. If defendant completes diversion, the court shall dismiss the charges. On the 

other hand, if the court determines defendant is ineligible for diversion, or he does not 

successfully complete diversion, then his convictions and sentence shall be reinstated. 

We express no view regarding whether defendant will be able to show eligibility on 
13.

remand or whether the trial court should exercise its discretion to grant diversion if it 

finds him eligible. (Accord, Frahs, supra, 9 Cal.5th at p. 641.)