Filed 4/3/14 P. v. Hill CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.
JASON A. HILL,
Defendant and Appellant. B244577
(Los Angeles County Super. Ct. No. TA123453)

APPEAL from a judgment of the Supe rior Court of Los Angeles County, Allen Joseph Webster, Jr., Judge . Reversed and remanded. David L. Kelly, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, A ssistant Attorney General, Margaret E.
Maxwell and Thomas C. Hs ieh, Deputy Attorneys Gene ral, for Plaintiff and Respondent.2 INTRODUCTION A jury convicted defendant Jason A. Hill of inflicting corporal injury upon a cohabitant (§ 273.5, subd. (a)) 1 while using a deadly weapon (§ 12022, subd. (b)(1).) The court discharged the jury and scheduled a bench trial on defendant’s prior conviction allegations. Before th e bench trial was c onducted, defendant
made a Faretta motion. 2 The court denied the mo tion, stating reasons not recognized by case law. The day of the benc h trial, defense counsel informed the court that defendant had provided her with information that could form the basis of a new trial motion and requested a continua nce to permit her to investigate. The court denied the request, erroneously sta ting that defendant could file a new trial motion after sentencing. The court c onducted the bench trial, found that defendant’s prior conviction had been pr oven, and sentenced defendant to state prison. In this appeal, defendant raises no cl aim of error in regard to the trial resulting in his conviction. Instead, he co ntends that the trial court erred when it
denied his Faretta motion and defense counsel’s request for a continuance to investigate a new trial motion. We agr ee and therefore reverse the judgment and remand the case to the trial court solely to permit a renewal of those motions.

FACTUAL AND PROCEDURAL BACKGROUND In relevant part, the information a lleged that defendant violated section 273.5, subdivision (a) while using a deadly weapon and that he had suffered a prior felony conviction within the meaning of several enhancement statutes.

1 All statutory references are to the Penal Code.

2 Faretta v. California (1975) 422 U.S. 806.3 Deputy Public Defender Ja net Araujo represented de fendant. A jury trial
was conducted in which defendant testified on his own behalf. On September 14, the jury returned w ith its verdict. The jury convicted defendant and found the deadly we apon enhancement to be true. 3 After the trial court discharged the jury, de fendant was advised of and waived his right to a jury trial on the issue of his prior conviction. The parties agreed that a bench trial would be conducted on the pr ior conviction allegations immediately before the October 5 probation and se ntencing hearing. On October 5, defendant made a Marsden motion to relieve Araujo. At an in camera hearing, th e following occurred. Defendant explained that he “wish[ed ] to relieve [Arauj o] for ineffective
assistance of counsel and conflict of interest .” Defendant then stated: “I also did file a pro per packet, sir, and I wish to exercise my Faretta rights at this time in preparation for my pretrial hearing and pretrial motion.” The trial court rejected defenda nt’s request to relieve Araujo. 4 In this appeal, defendant does not contend that the trial court’s denial of his Marsden
motion was error. Turning to defendant’s Faretta request, the court asked: “And you want to go pro per? You don’t even know the na me of the motions [that you believe

3 Since defendant does not ch allenge the sufficiency of th e evidence to support the jury’s verdict, there is no need to recite th e facts of the crime.

4 In denying the Marsden motion, the court stated that Araujo had been an attorney “25, 30 years,” was “experienced, [had] tried a number of cases in [his] court, including murder cases . . . [and] did an incredible jo b” in defendant’s case. The court explained that it was not defense counsel’s “fault” that “the jury didn’t believe” defendant, but, instead, credited the victim’s testimony. The c ourt concluded: “I think the real conflict is you [defendant] don’t like female lawyers. I think that’s the problem with this case. [¶] . . . I don’t see a basis for w hy she [Araujo] should be removed.”4 defense counsel should have brought]. How could you go pr o per?” At the end of the in camera hearing, the court stated: “You want to go pro per for your appeal, you can go pro per for your appeal.” “I’m denying [your Faretta motion]. [Araujo] is going to handle the [bench] tr ial [on the prior conviction], and once the trial is over, if you want to file a Faretta , you can do it on your own. All right? It’s going to be denied.” Proceedings resumed in open court. In the course of sc heduling defendant’s probation and sentencing hear ing, defendant stated: “Certain things that have been revealed I’ve discovered since the trial, Your Honor, I believe it’s [a section] 1181 [subdivision] 8 [motion], and those are certain things that I wish to expose to the court to allow you to see for basis and gr ounds for me to file my retrial motions, sir. There are certain th ings that [defense counsel] has consistently did that I feel is a c onflict of interest. I feel like she’s railroaded me, Your Honor , and I do not wish to have her represent me.”

The court replied: “I’ve already made a decision with respect to that, so the bottom line is you can talk to her or we can decide [the date of your sentencing hearing].” During the subsequent excha nge, defendant reiterated: “I want to exercise my Faretta rights.” The court responded: “That’s been denied. We are talking about what day you want for P & S.” Ultimately, th e court ordered the parties to return on October 10. On October 10, Araujo told the cour t that defendant had “provided [her] with further information that, if it’s investigated, would provide matter for a
motion for a new trial. . . . [¶] . . . The basis, just generally being, new information that wasn’t readily availabl e at the time of th e trial.” Araujo “request[ed] that the matter be put over for another court da te . . . to allow [her] to5 investigate this information.” 5 She stated that she had explained to defendant “that if the court is amenable to [her] request on his behalf, that [she] would ask to have
a video conference with him [the] next week . . . and he would have to provide [her] with the specific details and information so that [she] could investigate the information to determine if there is [a basis for] a motion for a new trial.” The prosecutor made multiple objections to th is request and asked that defendant be sentenced that day. The court explained, at length, its (e rroneous) belief that defendant would be able to file a new trial motion after sentencing. 6 The court stated that if the new information referenced by defense counsel “was not known to the defense or not provided to the defense by [defendant], certai nly if that is the case, then that could

5 Subdivision (8) of section 1181 provides th at the trial court may grant a new trial motion “[w]hen new evidence is discovered ma terial to the defendant, and which he could not, with reasonable diligence, have di scovered and produced at the trial. When a motion for a new trial is made upon the gr ound of newly discovered evidence, the defendant must produce at the hearing, in support thereof, th e affidavits of the witnesses by whom such evidence is expect ed to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstance s of the case, may seem reasonable.”

6 The court stated: “I’m not aware that the fact that a person is sentenced . . . precludes anyone from filing a motion for new tria l. I mean, seems to the court that’s a constitutional right one has that you can file for a motion for new trial. . . . [¶] It happens all of the time [after sentencing], . . . espe cially in these homicide cases. Happens on a regular basis. There’s nothing that suggests that a motion for new trial can’t be lodged after sentencing occurs. Or two, even after – or if there’s going to be an appeal. I don’t think that there’s anything that legally prohibits someone from filing a motion for new trial after they’ve been senten ced. I don’t think one has anyt hing to do with the other. That’s a person’s constitutional right. It must be done timely. I don’t know anything that says once you are sentenced you lose jurisdiction to file a motion for a new trial. That’s not my understanding. . . . I think there’s nothing preclud ing [defendant] or any other individual from filing a motion for new trial. In fact, it tends to happen more after the sentencing than before.” Defense counsel disagreed with the court’ s assessment but could not cite authority to support her view. The pr osecutor’s comments suggeste d agreement with the trial court’s incorrect statement of the law.6 be the subject of a motion for new trial” bu t then concluded that that scenario did not “preclude[] the court from moving furthe r with the case.” It therefore denied defense counsel’s request to continue the matter. The court proceeded to the bench tr ial on defendant’s prior conviction. During that proceeding, defendant reiterated: “I said I wanted to go pro per and represent myself.” The cour t explained that it already denied that request several times. At the end of the bench trial, the court found that defendant’s prior conviction had been proven. The court i mmediately sentenced defendant to an 11- year prison term.
The court advised defendant of his a ppellate rights; defendant again sought “to exercise my Faretta rights”; and the trial court re iterated defendant could do so on appeal. Defense counsel then stated: “To reiterate that th e court pointed out
earlier . . . that a motion for a new trial can be heard even after sentencing. So the court pointed out to [defendant] that even though he’s going to be sentenced, he doesn’t lose the ability to file a motion for new trial.” The trial court replied: “All right.” This appeal follows.

DISCUSSION
A. DENIAL OF FARETTA MOTION
Defendant first contends that the tria l court erred when it denied his request to represent himself.
A criminal defendant has a constitutiona l right to self-representation if he voluntarily and intelligently waives his right to counsel. ( Faretta v. California,

supra, 422 U.S. at pp. 818-819; People v. Windham (1977) 19 Cal.3d 121, 124 ( Windham ).) If the request for self-represen tation is timely, “the defendant’s ‘technical legal knowledge’ is irrelevant to the c ourt’s assessment of the7 defendant’s knowing exercise of the right to defend himself.” ( Windham, supra, 19 Cal.3d at p. 128.) But if the “defendant ha s elected to proceed to trial represented by counsel and the trial has commenced, it is thereafter within the sound discretion
of the trial court to determine whether such a defendant may dismiss counsel and proceed pro se .” ( Id . at p. 124.) Relying upon People v. Miller (2007) 153 Cal.App.4th 1015 ( Miller ),
defendant contends that his Faretta motion was timely so that the trial court was required to grant it as long as he voluntar ily and intelligently waived the right to counsel. We are not persuade d that the motion was timely.
In Miller , the defendant was represented by counsel throughout trial, including the return of the jury’s verdict and the trial court’s denial of a new trial motion. ( Miller, supra , 153 Cal.App.4th at p. 1019.) Two months before the sentencing hearing, the defendant stated he wished to represent himself. The trial court, after balancing multip le factors, rejected the Faretta request. ( Id . at p. 1020.) The Court of Appeal reversed. It noted that the “timeliness of a Faretta motion made after a finding of guilt but be fore sentencing appears to be a question of first impression.” ( Miller, supra , 153 Cal.App.4th at p. 1022.) It concluded that the defendant’s request “made after the jury returned its verdict and his new trial motion had been denied, but well before se ntencing, was not made during trial for the simple reason that sentencing occurs pos ttrial. [Citations.] Sentencing is not like a bifurcated trial on prior convictions [which is] part of ‘a proceeding which ha[s] been divided into separate com ponents for [the] defendant’s benefit.’ [Citation.] Instead, sentencing is a proceedi ng separate and distin ct from the trial.” ( Id . at pp. 1023-1024.) Because “the reque st was timely, [the defendant] had an absolute right to represent himself at se ntencing and the trial court was required to grant his request for self-representation, which was unequivocal, as long as he was8 mentally competent and the request was made ‘knowingly and intelligently, having been apprised of the dangers of se lf-representation.’ [Citation.]” ( Id . at p. 1024.)
Miller is clearly distinguishable. In Miller, when the defendant made his
Faretta request, the trial court had already denied a new trial motion and the only pending matter was a sentencing hearing set two months in the future. Here, on the other hand, when de fendant made his Faretta request, the court had not yet
conducted a bench trial on defendant’s prior convict ion and defendant had
indicated that he intended to file a ne w trial motion. We therefore find that defendant’s request, while unequivocal, was made during trial so that the trial court retained discretion to grant or deny it. This takes us to the next issue: was
the trial court’s denial of defendant’s Faretta request an abuse of discretion?
Windham sets forth the factors a trial c ourt should consider in ruling upon a
Faretta request made during trial. They include “the quality of counsel’s representation of the defendant, the defe ndant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasona bly be expected to follow the granting of such a motion.” ( Windham, supra, 19 Cal.3d at p. 128.) In this case, the trial court did not di scuss any of those factors. Instead, it relied upon two legally incorrect reasons to deny the motion. First, it stated that defendant lacked sufficient legal knowledge to represent himself. (“You don’t even know the na me of the motions. How could you go pro per?”) But a defendant’s le gal knowledge or acumen is not a relevant factor to consider in ruling upon a Faretta request. ( Windham, supra, 19 Cal.3d at p. 128.) Second, the trial court to ld defendant that if he insisted upon representing himself, he could do so on appeal. But this statement is likewise incorrect. A
criminal defendant has no constitutional right to self -representation on appeal.9 ( Martinez v. Court of Appeal of Cal., Fourth Appellate Dist. (2000) 528 U.S. 152; People v. Scott (1998) 64 Cal.App.4th 550.) To avoid this conclusion, the Attorn ey General cites to comments the trial
court made when it first denied the Marsden motion to argue that the trial court did rely upon proper factors when it denied the Faretta request. (See fn. 4, ante .) But the “trial court’s exercise of discretion in denying an untimely Faretta motion is properly affirmed if substantial evidence in the record supports the inference that
the [ trial ] court had those factors in mind when it ruled .” ( People v. Bradford (2010) 187 Cal.App.4th 1345, 1354, italics a dded.) In this case, the comments the
trial court made when it denied the Faretta motion support the contrary inference.
We therefore find that its denial of the Faretta motion was an abuse of discretion. (See People v. Knoller (2007) 41 Cal.4th 139, 156 [t he trial court abuses its discretion if its ruling is based on impe rmissible factors or an incorrect legal standard].) This error requires a limite d remand to permit defe ndant to renew his
Faretta motion so that the trial court may rule based upon the Windham factors. (See People v. Miller, supra, 153 Cal.App.4th at pp. 1024-1025.)

B. DENIAL OF THE RE QUEST FOR A CONTINUANCE
TO INVESTIGATE A NEW TRIAL MOTION
Defendant next contends that the tria l court abused its discretion in denying defense counsel’s request for a continuan ce to prepare a new trial motion. We

agree. The trial court possesses broad discre tion to grant or deny a request for continuance. ( People v. Sakarias (2000) 22 Cal.4th 596, 646-647.) But a proper exercise of juridical discretion requires kn owledge and consideration of the “legal principles essential to an informed, inte lligent and just decision. [Citation.]” ( People v. Lara (2001) 86 Cal.App.4th 139, 165.)10 In this case, the trial court denied th e request after it repeatedly stated its
erroneous belief that defendant could file his new trial motion after he had been sentenced. (See fn. 6, ante .) In other words, the tr ial court apparently believed
that a continuance was not necessary because defense c ounsel could investigate the
basis of a new trial motion and file that mo tion after defendant had been sentenced. The law is to the contrary. Section 1182 provides that a new trial motion “must be
made and determined before judgment[.]” Thus, “[i]t is axiomatic . . . that a
motion for new trial cannot be entertained or granted after judgment is entered.” ( People v. Hales (1966) 244 Cal.App.2d 507, 511.) Defendant urges that the “trial court’s misunderstanding of the law concerning timeliness of such motions amounts to a de facto refusal to hear such motion at all, and completely foreclos ed [his] opportunity to investigate and litigate any motion for new trial.” He further ar gues that the improper denial of the continuance request “made it impossible for trial counsel to make a record from which this Court may determ ine whether or not such [n ew trial] motion had merit or lacked merit.” We agree and therefor e reject the Attorney General’s arguments
that the trial court could have denied the request based upon reasons it did not
state or that the trial court’s denial of the request was not prejudicial. The remedy is to remand the matter to the trial court so that defense counsel can renew her request for a continuance to permit her to investigate a new trial motion and the trial court can rule upon the request using the appropriate factors. (See People v. Braxton (2004) 34 Cal.4th 798, 818-820.)

C. LIMITED REMAND As previously noted, this appeal rais es no claim of error in regard to the propriety of defendant’s conviction. Ther efore, our reversal of the judgment is
limited to a reversal of the trial court’ s finding on the prior conviction and its11 subsequent imposition of sentence. This will permit defenda nt to renew his
Faretta motion and, if the motion is denied, allow defense counsel to move again for a continuance to allow her to investig ate a new trial motion. If the motion is granted, defendant will have the opportunity to move for new trial. If the trial court denies both motions, it is directed to reinstate its finding on the prior conviction and its imposition of sentence.

DISPOSITION The judgment is reversed and the matter is remanded to the trial court to proceed in accord with the dir ections set forth in this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

MANELLA, J.