Filed 6/6/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ELIJAH JOE RUFFIN,

Defendant and Appellant.

 B270940

 (Los Angeles County

 Super. Ct. No. TA137412)

APPEAL from a judgment of the Superior Court of Los Angeles 

County, John Cheroske and Kelvin D. Filer, Judges. Reversed.

Theresa Osterman Stevenson, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief 

Assistant Attorney General, Lance E. Winters, Assistant Attorney 

General, Zee Rodriguez and Corey J. Robins, Deputy Attorneys General, 

for Plaintiff and Respondent.
2

By information, appellant Elijah Joe Ruffin was charged with 

corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a))1 and 

assault by means of force likely to produce great bodily injury (§ 245, 

subd. (a)(4)), based on a single alleged assault on Katisha E. It was also 

alleged that he had suffered two prior strike convictions (§§ 667, subd. 

(d), 1170.12, subd. (b)) and had served two prior prison terms (§ 667.5, 

subd. (b)).

2 

In the master calendar court, on the date set for trial, appellant 

exercised his right to represent himself under Faretta v. California

(1975) 422 U.S. 806, after the court indicated it would find good cause to 

continue the trial because appellant’s appointed counsel was engaged in 

another trial. Before the court granted the Faretta request, appellant 

initialed and signed a written Faretta advisement form. Thereafter, 

appellant represented himself at trial before a different judge, and a 

jury convicted him of both counts. The trial court found the strike and 

prior prison term allegations true, struck one strike at sentencing, and 

sentenced appellant to total term of eight years in state prison. 

On appeal, appellant contends that the master calendar court 

failed to adequately advise him of the dangers and disadvantages of 

self-representation. We agree. The court’s inquiry consisted of asking 

whether appellant initialed and signed the form (he did) and whether 

 

1 Unspecified statutory references will be to the Penal Code.

2 The alleged strikes were prior convictions of forcible rape (§ 261, subd. 

(a)(2)) and criminal threats (§ 422, subd. (a)). 
3

he had any questions (he did not). The court did not ascertain on the 

record that defendant read and understood the written Faretta form. 

The court also failed to inquire about ambiguities in appellant’s 

responses regarding his understanding of the nature of the charges 

against him. And nothing in the record—not the oral proceedings or the 

written Faretta form—advised defendant of the penal consequences of 

conviction—27-years-to-life in state prison. Considering all these 

circumstances and reviewing the entire record de novo, we conclude 

that appellant’s Faretta waiver was invalid, because the master 

calendar court’s inquiry about the Faretta form and the remainder of 

the record fail to adequately demonstrate that that appellant 

understood the dangers and disadvantages of representing himself 

consistent with established case authority. Therefore, we reverse the 

judgment.3 

TRIAL EVIDENCE

Katisha E. testified that she began dating appellant in 2015 and 

moved into his home in March of that year. On April 2, 2015, she 

awoke around 2:00 a.m. when she heard appellant searching through 

her purse. Appellant accused Katisha E. of being a prostitute, and 

struck and choked her, resulting in swelling and redness to her right 

eye, bruising to her left eye, and bruises and a large bump to her right 

shoulder. Katisha E. moved to her stepmother’s house that night but 

 

3 Because we reverse on this ground, we need not discuss appellant’s 

other contentions. 
4

did not report the incident to the Los Angeles County Sheriff’s 

Department until April 5, 2015.

FARETTA PROCEEDINGS

On September 30, 2015, the last day for trial, appellant’s assigned 

alternate public defender was engaged in trial in another case. In the 

master calendar department, a substitute alternate public defender 

asked the court to continue the case until October 6, when appellant’s 

assigned attorney would be finished with the other trial. The court 

asked appellant, “You give up your right to go to trial today and agree 

to October 6 or not?” When appellant replied “no,” the court stated that 

it would find good cause to continue the trial. 

The alternate public defender then informed the court that 

appellant wanted to start the trial and proceed in pro. per. The court 

responded, “You are not that stupid. You have one of the best lawyers 

in the county.” Appellant stated, “You can’t keep me in jail for 

allegations. I have rights. You are unconstitutionally keeping me in 

prison. You are violating my rights to a speedy trial.” The court told 

appellant, “don’t talk to me anymore. Put him back. Any family here?” 

Appellant’s father stated that he was present. The court said, “Maybe 

you can talk to him. He wants to commit suicide. He has a good 

lawyer. He doesn’t know how to be a lawyer. If he wants to, I will let 

him. If you want to talk to him, it’s up to you. You want to talk to 

him?” The father replied, “I can talk to him but he wants a speedy 
5

trial.” The court stated, “Okay. Thanks for helping me. We will pass 

this.” The court then took a recess. 

The court provided appellant with a copy of a document later 

described by the court as “the pro. per. policy memorandum of Local 

Rule 6.41,”

4 as well as a written advisement and waiver of right to 

counsel form. On the waiver form, appellant checked the boxes advising 

him of, among other things, his right to counsel, his right to represent 

himself, and a lengthy, detailed list of dangers and disadvantages of 

self-representation. In the portion of the form regarding the charges, 

appellant checked the box indicating that he understood he was 

“charged with the following crime(s),” but the space for listing the 

charges was left blank. He checked the box stating that he knew “the 

crime(s) with which you are charged (is) (are) (general) (specific) intent 

crime(s),” but he failed to circle either. He also checked boxes indicating 

that he knew what facts had to be proved before he could be found 

guilty and knew the legal defenses. Nothing in the form advised him of 

the penal consequences of conviction. Because he was eligible for 

treatment as a third-strike defendant, with two prior prison terms 

alleged alleged, he was subject to a possible sentence of 27 years to life 

in state prison.5 He checked boxes affirming that he understood the 

 

4 The memorandum is not in the record. Neither side discusses its 

contents in arguing whether appellant’s Faretta waiver was valid. Rather, 

both rely on the written waiver form and the record of oral proceedings. 

5 Neither of appellant’s charged offenses, which were committed in a 

single violent incident, was a serious or violent felony. Nonetheless, upon 

conviction of either or both of those crimes, and a true finding of his two 
6

court’s recommendation that he not represent himself and that it 

remained his wish to represent himself. Finally, he signed and dated 

the form, certifying: “I have read, understood and considered all of the 

above warnings included in this petition, and I still want to represent 

myself. I freely and voluntarily give up my right to have a lawyer 

represent me.” 

When the court reconvened, the following proceedings occurred: 

“THE COURT: Recalling People vs. Ruffin. I have documents by 

Mr. Ruffin. You understand you are requesting to go to trial today and 

to represent yourself. Is that your wish?

“THE DEFENDANT: Yes.

“THE COURT: You had an opportunity to read the documents 

submitted to you. Those were the pro. per. policy memorandum of Local 

Rule 6.41. Did you read that?

“THE DEFENDANT: Yes.

“THE COURT: Did you understand it?

 

alleged strikes, he would not be eligible for sentencing as if he was a second 

strike defendant under section 667, subdivision (e)(2)(C). One of defendant’s 

alleged prior strikes was a conviction of forcible rape under section 261, 

subdivision (a)(2). Such a crime is a sexually violent offense as defined in 

Welfare and Institutions Code section 6600, subdivision (b). Under section 

667, subdivision (e)(C)(iv)(I), a defendant who has suffered a prior conviction 

of such an offense is exempted from treatment as a second strike defendant, 

even if the present crimes are not serious or violent. (See Couzens & 

Bigelow, California Three Strike Sentencing (Rutter Group 2016) § 7:2, pp. 7-

18 to 7-19.) Therefore, if appellant were convicted of one or both of the 

charges against him, and if both alleged strikes were found true, he was 

subject to third strike sentencing. In addition, if the section 667.5, 

subdivision (b) priors were found true, appellant could possibly be sentenced 

to an additional two years. Thus, we describe the maximum possible 

sentence if appellant were convicted and all his priors were found true as 27 

years to life. 
7

“THE DEFENDANT: Yes.

“THE COURT: I am holding a document entitled Advisement of 

Waiver of Right to Counsel of 4 pages. On the right-hand side it has 

initials E.R. Did you put that in there?

“THE DEFENDANT: Yes.

“THE COURT: That stand for Elijah Ruffin?

“THE DEFENDANT: Yes.

“THE COURT: Is that your signature?

“THE DEFENDANT: Yes.

“THE COURT: You have any questions about anything before I 

send you to trial forthwith?

“THE DEFENDANT: No.

“THE COURT: Okay. Sent to Department C, Judge Filer for trial 

today.” 

When the case was called that morning in the trial department, 

the prosecutor stated his appearance, and the trial court noted that 

appellant was representing himself. Appellant replied: “Really I don’t 

want to represent myself pro per. But I have no choice. I’ve been in 

prison. I wanted a speedy trial. . . . I really would like someone with

some type of legal responsibility to represent me because now I have to 

ask for a couple days to go over this to build a defense for me.” The 

court replied, “All that should have been taken care of in Department D. 

Today is day ten of ten. . . . [¶] I’m confident you have been granted pro 

per status. So we’re here and ready to proceed with the trial, and I 

intend on going through with the trial.” Appellant stated, “I had no 

time to go over any paperwork, so if I can ask for some time to go over 

paperwork, and come back [at] a later date so I can have a defense. 

This is the first time I’ve seen paperwork regarding this case at all.” 
8

The prosecutor replied that appellant had “indicated he was ready 

today.” Appellant stated, “And what I mean by ready . . . I was ready to 

go to trial to defend myself with some type of legal help.” The court 

denied appellant’s request, stating, “No, this has already been litigated 

and you can’t play games with the court system. I have a waiver form 

that has been initialed by you and signed by you indicating that you 

have been properly advised and that you want to represent yourself. 

Once that determination was made by Judge Cheroske he granted you 

that right, so the case was sent here for trial.” 

The trial court noted that it would take the rest of the day to pick 

a jury, and that appellant would have an opportunity to read any 

relevant reports before testimony began the next day. The court also 

advised appellant that he would not receive any special treatment and 

that he would receive a fair trial. The court added, “So you’re here 

representing yourself; is that correct?” Appellant replied, “Yes, I am.” 

The court briefly explained the procedures for picking a jury, bifurcated 

the trial on appellant’s alleged prior convictions, and at the prosecutor’s 

urging again advised that appellant would receive “no special treatment 

and no special privilege. . . . All the rules of evidence must be followed 

and observed and the rules of court decorum as well.” Appellant 

affirmed that he understood. 

DISCUSSION

Appellant contends the master calendar court erred by allowing 

him to represent himself without first determining whether he 
9

knowingly and intelligently waived his right to counsel. For the 

reasons discussed below, we agree.

“‘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 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.] “No particular form of words is required in admonishing a 

defendant who seeks to waive counsel and elect self-representation.” 

[Citation.] Rather, “the test is whether the record as a whole 

demonstrates that the defendant understood the disadvantages of selfrepresentation, including the risks and complexities of the particular 

case.” [Citations.]’ [Citation.] Thus, ‘[a]s long as the record as a whole 

shows that the defendant understood the dangers of self-representation, 

no particular form of warning is required.’ [Citations.]” (People v. 

Burgener (2009) 46 Cal.4th 231, 240–241 (Burgener).) “‘On appeal, we 

review the entire record, including proceedings after the invocation of 

the right to self-representation, and determine de novo whether the 

defendant’s waiver of the right to counsel was knowing and voluntary.’ 

[Citations.]” (People v. Bush (2017) 7 Cal.App.5th 457, 469 (Bush).)

Although no specific inquiry is required, prior California decisions 

have discussed the types of warnings that are sufficient. Those 

warnings “‘include the defendant’s inability to rely upon the trial court 
10

to give personal instruction on courtroom procedure or to provide the 

assistance that otherwise would have been rendered by counsel. . . .’ 

[Citation.] The defendant ‘should at least be advised that: selfrepresentation 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 will receive no help or special treatment from the 

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

cocounsel. [Citation.] [¶] While this list of issues is not exhaustive, it 

demonstrates that there are a number of matters the court must ask 

about and consider before ruling on a defendant’s request to represent 

himself.’ [Citation.]” (People v. Sullivan (2007) 151 Cal.App.4th 524, 

545–546 (Sullivan).)

In addition, we note that the court should satisfy itself that the 

defendant understands the nature of the charges against him, though 

there is a split of authority in California as to whether the court must

also specifically advise the defendant of the maximum penal 

consequences of conviction. (See Bush, supra, 7 Cal.App.5th at pp. 469-

474 [discussing decisions and holding advisement of penal consequences 

is not essential to a valid Faretta waiver]; compare People v. Jackio 
11

(2015) 236 Cal.App.4th 445, 454-455 [holding that court must advise 

the defendant of the maximum punishment if convicted, including 

enhancements].) We need not enter the debate whether and to what 

extent a trial court is required to advise of possible penal consequences, 

because even if such an advisement is not mandatory, its total absence 

is certainly a factor to consider in determining whether the defendant’s 

waiver was knowingly made, and in this case we rely on the entire 

record to conclude that the Faretta waiver was invalid. 

Finally, “[t]he high court has instructed that courts must draw 

every inference against supposing that the defendant wishes to waive 

the right to counsel. [Citation.] It follows, as several courts have 

concluded, that in order to protect the fundamental constitutional right 

to counsel, one of the trial court’s tasks when confronted with a motion 

for self-representation is to determine whether the defendant truly 

desires to represent himself or herself. [Citations.] The court faced 

with a motion for self-representation should evaluate not only whether 

the defendant has stated the motion clearly, but also the defendant’s 

conduct and other words. Because the court should draw every 

reasonable inference against waiver of the right to counsel, the 

defendant’s conduct or words reflecting ambivalence about selfrepresentation may support the court’s decision to deny the defendant’s 

motion. A motion for self-representation made in passing anger or 

frustration, an ambivalent motion, or one made for the purpose of delay 

or to frustrate the orderly administration of justice may be denied.” 

(People v. Marshall (1997) 15 Cal.4th 1, 23 (Marshall).)
12

In the instant case, there is no question that the master calendar 

court’s oral comments themselves failed to adequately advise appellant 

of the dangers and disadvantages of self-representation. In that regard, 

Burgener is instructive. There, the defendant was represented by 

counsel at trial and at several post-conviction and post-appeal hearings. 

The case was reversed and remanded twice. The defendant asked to 

represent himself at a resentencing hearing after defense counsel stated 

his intent to request another continuance. “Promptly upon learning of 

defendant’s interest in representing himself, the court stated, ‘I think I 

would be remiss if I didn’t advise you at least with regard to certain 

possible pitfalls with regard to self-representation.’ Then, at the 

subsequent hearing, the court acknowledged that its own opinion on the 

matter was not determinative; ‘[i]t’s a question of whether or not you 

are fully aware of the consequences of representing yourself.’” 

(Burgener, supra, 46 Cal.4th at p. 241.)

Our Supreme Court reasoned that, although “the trial court was 

aware of its duty to advise defendant of the dangers and disadvantages 

of self-representation . . . [¶] [t]he record concerning defendant’s 

understanding of the dangers and disadvantages of self-representation 

. . . is rather thin. Despite the foregoing statements of intent, the court 

did not actually follow through and advise defendant of the ‘possible 

pitfalls’ or ‘consequences’ of self-representation. Instead, the court 

simply assumed that defendant was aware of them, at first declaring, 

‘I’m sure that you’re familiar with all of the obligations and—that are 

concerned in this particular matter, what the consequences are.’” 
13

(Burgener, supra, 46 Cal.4th at pp. 241-242.) The court found the trial 

court’s advisement “plainly insufficient to establish a knowing and 

intelligent waiver of the right to the assistance of counsel.” (Id. at p. 

242.) Burgener emphasized that a request for self-representation in a 

limited proceeding, such as “the trial court’s reconsideration of his 

application to modify the verdict . . . differs markedly from a trial on the 

merits, which involves voir dire of potential jurors, the examination and 

cross-examination of witnesses, and jury instructions.” (Ibid.) 

Here, the master calendar court’s oral comments advised 

appellant, in substance, that it was unwise for him to represent himself: 

“You are not that stupid”; “He wants to commit suicide. He has a good 

lawyer. He doesn’t know how to be a lawyer.” But the court did not 

give any other oral advisements. Respondent relies on the written 

waiver form to argue that appellant’s waiver was knowing and 

voluntary. We disagree. 

In granting appellant’s request to represent himself, the master 

calendar court declared: “You understand you are requesting to go to 

trial today and to represent yourself. Is that your wish?” Appellant 

replied, “Yes.” The court noted that appellant “had an opportunity to 

read the documents submitted to” him. The court then referred 

specifically to “the pro. per. policy memorandum of Local Rule 6.41,”

and asked if appellant read and understood it. Appellant replied yes to 

both questions. Next, the court stated that it was “holding a document 

entitled Advisement of Waiver of Right to Counsel of 4 pages.” In 

response to the court’s inquiries, appellant affirmed that he had 
14

initialed and signed the form. The court then asked, “You have any 

questions about anything before I send you to trial forthwith?” When 

appellant answered he did not, the court ordered the case out for trial. 

The court did not affirmatively ascertain on the record whether 

appellant actually read and understood the advisements contained in 

the waiver form, and whether, with such understanding, appellant 

wished to waive his right to counsel and represent himself. 

Further, appellant’s completed form was not entirely clear 

regarding his knowledge of the charges against him. In the portion of 

the form regarding the charges, appellant checked the box indicating 

that he understood he was “charged with the following crime(s),” but 

the space for listing the charges was left blank. He also checked the box 

stating that he knew “the crime(s) with which you are charged (is) (are) 

(general) (specific) intent crime(s).” But without appropriate editing, 

his mere checking the box suggested that, in fact, he did not know 

whether the charges required general or specific intent. On the other 

hand, he checked boxes indicating that he knew what facts had to be 

proved before he could be found guilty and knew the legal defenses. 

Despite these apparent ambiguities, the master calendar court made no 

inquiry in an attempt to assure itself that appellant actually understood 

the charges. We do not mean to suggest that a court must make a 

detailed inquiry into a defendant’s knowledge of specific elements of the 

charges against him. And we certainly understand the exigencies of 

running a busy master calendar court. But when a completed Faretta 

waiver form is blank as to the specific charges and confusing as to the 
15

defendant’s understanding of the intent requirements, yet reflects that 

the defendant purports to know what facts must be proved for 

conviction and knows the legal defenses, at least some inquiry would be 

helpful to ensure that the defendant truly understands the nature of 

the charges against him. Further, neither the court nor the form 

advised defendant of the penal consequences of conviction—up to 27 

years to life in state prison—and nothing in the record on appeal 

reveals such an advisement. Reviewing this record de novo and as a 

whole, we cannot say that the waiver form, coupled with the court’s oral 

inquiry, satisfactorily demonstrates that appellant’s request to 

represent himself was knowing and voluntary. 

Nor can we say that the advisements appellant received in the 

trial court cured these deficiencies in the record. Because the waiver 

occurred in the master calendar court, the trial court merely advised 

appellant, in substance, that he would receive no special treatment, and 

that he must comply with the rules of evidence and court decorum. 

These advisements do not fill the holes left by the record of the master 

calendar proceedings. 

The decisions on which respondent relies—People v. Blair (2005) 

36 Cal.4th 686 (Blair), overruled on other grounds in People v. Black

(2014) 58 Cal.4th 912, and People v. Miranda (2015) 236 Cal.App.4th 

978 (Miranda) —are distinguishable. In Blair, the court rejected the 

defendant’s claim that his Faretta waiver was not knowing and 

voluntary. The court explained that “the record is replete with 

instances in which defendant was warned of the dangers and 
16

disadvantages of self-representation, both orally and in writing, in both 

the municipal and superior courts. For example, defendant was orally 

warned that representing himself was unwise, that the prosecutor was 

an experienced lawyer who would have an advantage over him, that as 

an in propria persona defendant he would receive no special 

consideration from the court, that he would be unable to claim 

ineffective assistance of counsel on appeal, that as his own attorney it 

would be difficult to be objective, and that a death penalty case involved 

special risks. These oral advisements sufficed to apprise defendant of 

the dangers and disadvantages of self-representation.” (Blair, supra, 36 

Cal.4th at p. 708.) Some of the advisements were given only in the

written waiver form the defendant signed. The court reasoned that the 

failure to orally advise the defendant about “these latter warnings . . .

does not necessarily invalidate defendant’s waiver, particularly when,

as here, we have no indication that defendant failed to understand what 

he was reading and signing. To the contrary, defendant demonstrated 

his ability to read and write in numerous pro se filings before the court. 

Defendant also appeared to be of at least normal intelligence and spoke 

articulately in court.” (Id. at p. 709.) Further noting that the defendant 

had “demonstrated considerable legal knowledge, and had represented 

himself at his previous trial on the attempted murder charges involving 

the same underlying events,” the court concluded that the record 

supported the conclusion that the Faretta waiver was knowing and 

voluntary. (Ibid.)
17

Citing Blair, Miranda observed that “[w]hile it is preferable to 

question a defendant about his responses to a written waiver form, the 

failure to do so does not necessarily invalidate a waiver where there is 

no indication the defendant did not understand what he was reading 

and signing.” (236 Cal.App.4th at p. 986.) In Miranda, after the 

defendant initialed and signed the waiver form, he affirmed that he 

wanted to represent himself, and answered yes when asked “whether, 

by initialing and signing the form, he was telling the court that he 

understood he had the constitutional right to an attorney and whether 

he understood the dangers and disadvantages of representing himself.” 

Finally, “[t]he court then asked: ‘And knowing all of those consequences 

and what can happen to you, and the fact that you will not be given any 

special consideration, and I personally advise you not to represent 

yourself, you still want to represent yourself?”’ (Ibid.) The defendant 

replied that he did, and the court granted the Faretta waiver. 

On appeal, the appellate court reasoned in relevant part: “This 

was not a case where the trial court relied solely on the waiver form. 

After Miranda signed the form the trial court asked him whether by 

signing and initialing the form he had in fact read and understood it. 

Miranda answered yes. The court also asked Miranda whether he still 

wanted to represent himself despite his knowledge, including the loss of 

his right to counsel and the court’s advice that he not represent himself.

Miranda again answered yes. His statements to the court were clear 

and direct and showed a strong desire to represent himself.” (236 

Cal.App.4th at p. 986.) 
18

In the present case, unlike Blair, the record is not “replete with 

instances in which defendant was warned of the dangers and 

disadvantages of self-representation, both orally and in writing, in both 

the municipal and superior courts.” (Blair, supra, 36 Cal.4th at p. 708.) 

Indeed, the record reveals that the court failed to engage in even the 

minimal inquiry undertaken by the court in Miranda to ensure that 

appellant’s decision to represent himself was knowing and voluntary. 

Neither Blair nor Miranda stand for the proposition that when a 

defendant signs a written Faretta waiver form, the court need only 

conduct the kind of perfunctory proceeding that occurred in the master 

calendar court here, in which the court merely advised appellant that 

self-representation was unwise, and asked whether he initialed and 

signed the form and whether he had any questions. Rather, even when 

a waiver form is completed, the court’s duty remains to ensure that the 

defendant’s waiver of the right to counsel is knowing and voluntary. 

The record as a whole must demonstrate “‘“that the defendant 

understood the disadvantages of self-representation, including the risks 

and complexities of the particular case.”’” (Bush, supra, 7 Cal.App.5th 

at p. 469; compare id. at p. 478 [record showed the defendant knowingly 

and voluntarily waived counsel where, after receiving the written 

waiver form, the court explained the risks, issued “repeated reminders 

at 10 separate hearings,” and repeatedly offered to appoint a public 

defender at each of those hearings]; People v. Fox (2014) 224 

Cal.App.4th 424, 426, 431, 437 [rejecting the defendant’s claim that he 

did not knowingly and intelligently exercise his right to self-
19

representation, despite the trial court’s incorrect advice about one of the 

counts, because after receiving the signed waiver form, the trial court 

explained the disadvantages of self-representation and inquired into the 

defendant’s educational and psychological background]; People v. 

Conners (2008) 168 Cal.App.4th 443, 454-455 [relying not only on the 

written Faretta waiver form, but also on the “extensive colloquy” before 

granting the Faretta motion and the “shorter colloquy with the trial 

judge at the start of the trial,” to conclude “‘the record as a whole’” 

showed the defendant “‘understood the disadvantages of selfrepresentation’”].) 

In the present case, the record does not meet that test. The 

master calendar court failed to ascertain on the record that defendant 

actually read and understood the written Faretta form. The court failed 

to inquire about ambiguities in the form regarding defendant’s 

understanding of the nature of the charges against him. Nothing in the 

record—not the oral proceedings or the written Faretta form—advised 

defendant of the significant possible sentencing consequences of 

conviction. Under these circumstances, reviewing the record de novo, 

we do not have confidence that appellant was adequately made aware of 

the risks and disadvantages of self-representation before his request to 

represent himself was granted. And nothing that later occurred in the 

trial court cures these deficiencies. 

“[W]hen the record demonstrates that the trial judge neglected to 

advise the defendant of the dangers and disadvantages of selfrepresentation as required by Faretta when the waiver is taken, but the 
20

waiver of the right to counsel was voluntary, the courts have split on 

the standard of reversible error: some have determined that the error is 

structural and reversible per se; others have declared the error must be 

found prejudicial under the Chapman v. California (1967) 386 U.S. 18, 

24 test unless the error is harmless beyond a reasonable doubt.” 

(Sullivan, supra, 151 Cal.App.4th at p. 551, fn. 10; see Bush, supra, 7 

Cal.App.5th at p. 477.) Assuming that inadequate Faretta advisements 

can be harmless in some circumstances where the waiver of counsel is 

nonetheless voluntary, the record here fails to demonstrate beyond a 

reasonable doubt whether appellant would have decided to represent 

himself had he been properly advised. 

Upon appearing in the trial department after the inadequate 

inquiry by the master calendar court, appellant told the trial court, “I 

don’t want to represent myself pro per. But I have no choice. I’ve been 

in prison. I wanted a speedy trial. . . . I really would like someone with 

some type of legal responsibility to represent me because now I have to 

ask for a couple days to go over this to build a defense for me.” When 

the court replied that “[a]ll that should have been taken care of in 

Department D” and that the case would proceed to trial, appellant 

protested that “I had no time to go over any paperwork, so if I can ask 

for some time to go over paperwork, and come back [at] a later date so I 

can have a defense. This is the first time I’ve seen paperwork regarding 

this case at all. . . . [W]hat I mean by ready meant I was ready to go to 

trial to defend myself with some type of legal help.” Given appellant’s 

reluctance to represent himself in the trial department, it cannot be 
21

said, beyond a reasonable doubt, that had he been properly advised of 

the dangers and disadvantages of self-representation he would have 

chosen to represent himself. Rather, the record indicates that 

appellant’s request for self-representation was “made in passing anger 

or frustration” about the need to continue the trial and that appellant 

immediately expressed “ambivalence about self-representation.” 

(Marshall, supra, 15 Cal.4th at p. 23; see Bush, supra, 7 Cal.App.5th at 

p. 469 [on appeal, we examine the “‘entire record, including proceedings 

after the invocation of the right to self-representation, [to] determine 

. . . whether the defendant’s waiver of the right to counsel was knowing 

and voluntary.’”].) 

For the foregoing reasons, we conclude that appellant’s request for 

self-representation was not knowing, intelligent, and voluntary.

DISPOSITION

The judgment is reversed.

CERTIFIED FOR PUBLICATION

WILLHITE, J.

I concur:

COLLINS, J.
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EPSTEIN, P. J., Concurring in the Judgment.

The underlying facts in this case are recounted in the majority 

opinion. Briefly summarized, they show that defendant had been 

charged with corporal injury to a cohabitant and assault with force 

likely to cause great bodily injury. He pleaded not guilty to these 

charges and a deputy alternate public defender, Leslie Kelley, was 

appointed to represent him. On September 30, 2015, the case was in 

the criminal master calendar department for assignment to a trial 

department and trial that day. Defendant appeared with another 

alternate public defender who explained that Ms. Kelley was engaged in 

trial. The deputy alternate public defender who made the appearance 

asked that the case go over to October 6, 2015, by which time Ms. Kelley 

would be available to try the case. The delay amounted to four court 

days. When asked if he agreed to the postponement defendant replied 

“no.” The court expressed willingness to postpone to October 6 for good 

cause. At that point the deputy alternate public defender informed the 

court that defendant “wants to go pro per and he wants to start today.”

The trial court responded, addressing defendant, “You are not that 

stupid. You have one of the best lawyers in the county.” Defendant 

replied, “You can’t keep me in jail for allegations. I have rights. You 

are unconstitutionally keeping me in prison. You are violating my 

rights to a speedy trial.” The trial court asked if any family member 

was present in court, and defendant’s father announced his presence. 

Addressing the father, and in defendant’s presence, the court said, 
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“Maybe you can talk to him. He wants to commit suicide. He has a 

good lawyer. He doesn’t know how to be a lawyer. If he wants to I will 

let him. If you want to talk to him, it’s up to you. You want to talk to 

him?” Defendant’s father replied that he could talk to defendant but 

that defendant “wants a speedy trial.” The trial court thanked the 

father and passed the case until later in the calendar. 

The court called the case back after a recess. By then defendant 

had been provided with the form for waiver of counsel. With a single 

exception, he checked boxes verifying that he had read and understood 

the rights he would be giving up and the dangers of self-representation, 

including the court’s advice that he not give up his right to 

representation by counsel. Defendant acknowledged having read, 

initialed and signed the waiver form, upon which the case was 

transferred to another court for trial. (A copy of the form, as completed 

and initialed by defendant, is appended here as Attachment A.) He was 

not again asked if he understood what he was waiving. 

The single exception on the completed form is with respect to the 

“Charges and Consequences” part of the form, questions 4 through 7. 

Question 4 of the form states, “I understand that I am charged with the 

following crimes(s),” followed by two blank lines to be filled in. 

Defendant did not fill them in. But he checked the “yes” box for the 

next three questions, which asked if he knew the crimes which were 

charged, including whether they were general or specific intent crimes, 

knew what had to be proven for him to be found guilty, and knew the 

legal defenses to those charges. 
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What is missing at this juncture and elsewhere on the form, is an 

acknowledgment that defendant had been advised of the punishment he 

faced if convicted of the charges. The maximum punishment was 

complicated in this case because of enhancements based on defendant’s 

prior record, including a prior prison term. There is nothing in the 

record that states or incorporates some document that states, the 

maximum prison time that could be imposed. 

But for that omission, I see no basis for reversal. 

Once in the trial courtroom defendant asked for more time to 

prepare; that was denied because he had refused to waive time and had 

demanded to go to trial that day. The waiver form acknowledged that 

he had been specifically warned that “no continuance will be allowed 

without a showing of good cause, and that such requests made just 

before trial will most likely be denied.” (Item 3F on the waiver form.) 

The case proceeded to trial, which resulted in defendant’s conviction of 

the charges against him. There is no record that defendant sought to 

withdraw his waiver of counsel or asked that counsel be appointed to 

defend him. (He was represented by counsel in proceedings following 

return of the guilty verdicts.) 

The majority find fault with the trial court’s failure to ask 

defendant if he understood what rights he was waiving. I do not agree. 

He initialed specific references to waiving rights some 16 times, and he 

dated and signed the final substantive paragraph, which reads “I 

hereby certify that I have read, understood and considered and 

voluntarily give up my right to have a lawyer represent me.” 
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Barring some showing that defendant was unable to understand 

what he was signing or that he had changed his mind about selfrepresentation, this ought to be, and in my opinion is sufficient with 

respect to the initialed items. The court was not required to 

remonstrate with defendant about his choice so long as it was 

reasonably satisfied that defendant understood what he was giving up 

and the risks of self-representation. The printed form sets most of this 

out in plain language, avoiding legalese. Beyond that, the court made it 

clear that it believed defendant was making a mistake: it warned that 

waiver of counsel was unwise and more (“You are not stupid”), that in 

doing so defendant was likely to be convicted (“he wants to commit 

suicide”; “[h]e doesn't know how to be a lawyer”), but defendant 

persisted. The trial court’s phrasing may have been inelegant, but it 

was clear and pointed. “While it is preferable to question a defendant 

about his responses to a written waiver form, the failure to do so does 

not necessarily invalidate a waiver where there is no indication the 

defendant did not understand what he was reading and signing.” 

(People v. Miranda (2015) 236 Cal.App.4th 978, 986, and cases cited.)

It surely would be unusual if defense counsel had not advised 

defendant of the punishment he was facing if convicted on all charges. 

The law is not yet settled on the extent to which the record must show 

that a defendant was informed of the punishment he or she faced if 

convicted. (Compare People v. Bush (2017) 7 Cal.App.5th 457, 468–473; 

People v. Sullivan (2007) 151 Cal.App.4th 524, 545; People v. Jackio 

(2015) 236 Cal.App.4th 445, 453; People v. Conners (2008) 168 
26

Cal.App.4th 443, 455.) The correct rule, in my opinion, is that the record 

must reflect that the defendant is aware of the magnitude of the penalty, 

at least in terms of prison time, that may be imposed if found guilty of 

the charges. Since it does not, I agree that reversal is required. 

EPSTEIN, P. J.
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ATTACHMENT A
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