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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 Superior 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, Assistant Attorney General, Margaret E. 

Maxwell and Thomas C. Hsieh, Deputy Attorneys General, 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 the bench trial was conducted, defendant 

made a Faretta motion.2

 The court denied the motion, stating reasons not 

recognized by case law. The day of the bench 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 continuance to permit her to investigate. The 

court denied the request, erroneously stating that defendant could file a new trial 

motion after sentencing. The court conducted the bench trial, found that 

defendant’s prior conviction had been proven, and sentenced defendant to state 

prison. 

 In this appeal, defendant raises no claim of error in regard to the trial 

resulting in his conviction. Instead, he contends 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 agree 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 alleged 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 Janet Araujo represented defendant. A jury trial 

was conducted in which defendant testified on his own behalf. 

 On September 14, the jury returned with its verdict. The jury convicted 

defendant and found the deadly weapon enhancement to be true.3

 After the trial 

court discharged the jury, defendant 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 prior conviction allegations immediately before the 

October 5 probation and sentencing hearing. 

 On October 5, defendant made a Marsden motion to relieve Araujo. At an 

in camera hearing, the following occurred. 

 Defendant explained that he “wish[ed] to relieve [Araujo] 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 defendant’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 name of the motions [that you believe 

 

3

 Since defendant does not challenge the sufficiency of the evidence to support the 

jury’s verdict, there is no need to recite the 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 job” 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 court 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 why she [Araujo] should be removed.” 
4

defense counsel should have brought]. How could you go pro 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] trial [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 scheduling defendant’s 

probation and sentencing hearing, 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 grounds for me to file my retrial 

motions, sir. There are certain things that [defense counsel] has 

consistently did that I feel is a conflict 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 exchange, 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, the court ordered the 

parties to return on October 10. 

 On October 10, Araujo told the court 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 available at the time of the trial.” Araujo 

“request[ed] that the matter be put over for another court date . . . to allow [her] to 
5

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 this request and asked that defendant be 

sentenced that day. 

 The court explained, at length, its (erroneous) 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], certainly if that is the case, then that could 

 

5

 Subdivision (8) of section 1181 provides that the trial court may grant a new trial 

motion “[w]hen new evidence is discovered material to the defendant, and which he 

could not, with reasonable diligence, have discovered and produced at the trial. When a 

motion for a new trial is made upon the ground of newly discovered evidence, the 

defendant must produce at the hearing, in support thereof, the affidavits of the witnesses 

by whom such evidence is expected 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 circumstances 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 trial. 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], . . . especially 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 sentenced. I don’t think one has anything 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 precluding [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 prosecutor’s comments suggested agreement with the trial 

court’s incorrect statement of the law. 
6

be the subject of a motion for new trial” but then concluded that that scenario did 

not “preclude[] the court from moving further with the case.” It therefore denied 

defense counsel’s request to continue the matter. 

 The court proceeded to the bench trial on defendant’s prior conviction. 

During that proceeding, defendant reiterated: “I said I wanted to go pro per and 

represent myself.” The court 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 immediately sentenced defendant to an 11-

year prison term. 

 The court advised defendant of his appellate rights; defendant again sought 

“to exercise my Faretta rights”; and the trial court reiterated defendant could do so 

on appeal. Defense counsel then stated: “To reiterate that the 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 trial court erred when it denied his request 

to represent himself. 

 A criminal defendant has a constitutional 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-representation is timely, “the defendant’s 

‘technical legal knowledge’ is irrelevant to the court’s assessment of the 
7

defendant’s knowing exercise of the right to defend himself.” (Windham, supra, 19 

Cal.3d at p. 128.) But if the “defendant has 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 voluntarily and intelligently waived the right to 

counsel. We are not persuaded 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 multiple 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 before 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 sentencing, was not made during trial for 

the simple reason that sentencing occurs posttrial. [Citations.] Sentencing is not 

like a bifurcated trial on prior convictions [which is] part of ‘a proceeding which 

ha[s] been divided into separate components for [the] defendant’s benefit.’ 

[Citation.] Instead, sentencing is a proceeding separate and distinct from the trial.” 

(Id. at pp. 1023-1024.) Because “the request was timely, [the defendant] had an 

absolute right to represent himself at sentencing and the trial court was required to 

grant his request for self-representation, which was unequivocal, as long as he was 
8

mentally competent and the request was made ‘knowingly and intelligently, having 

been apprised of the dangers of self-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 defendant made his Faretta request, the court had not yet 

conducted a bench trial on defendant’s prior conviction and defendant had 

indicated that he intended to file a new 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 court should consider in ruling upon a 

Faretta request made during trial. They include “the quality of counsel’s 

representation of the defendant, the defendant’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 reasonably 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 discuss 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 name of the motions. How could you go pro 

per?”) But a defendant’s legal 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 told 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 Attorney 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 added.) 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 [the trial court abuses its 

discretion if its ruling is based on impermissible factors or an incorrect legal 

standard].) This error requires a limited remand to permit defendant 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 REQUEST FOR A CONTINUANCE 

TO INVESTIGATE A NEW TRIAL MOTION 

 Defendant next contends that the trial court abused its discretion in denying 

defense counsel’s request for a continuance to prepare a new trial motion. We 

agree. 

 The trial court possesses broad discretion 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 knowledge and consideration of the “legal 

principles essential to an informed, intelligent and just decision. [Citation.]” 

(People v. Lara (2001) 86 Cal.App.4th 139, 165.) 
10

 In this case, the trial court denied the 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 trial court apparently believed 

that a continuance was not necessary because defense counsel could investigate the 

basis of a new trial motion and file that motion 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 foreclosed [his] opportunity to investigate and 

litigate any motion for new trial.” He further argues that the improper denial of the 

continuance request “made it impossible for trial counsel to make a record from 

which this Court may determine whether or not such [new trial] motion had merit 

or lacked merit.” We agree and therefore 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 raises no claim of error in regard to the 

propriety of defendant’s conviction. Therefore, our reversal of the judgment is 

limited to a reversal of the trial court’s finding on the prior conviction and its 
11

subsequent imposition of sentence. This will permit defendant to renew his 

Faretta motion and, if the motion is denied, allow defense counsel to move again 

for a continuance to allow her to investigate 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 directions set forth in this opinion. 

 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

 WILLHITE, J. 

 We concur: 

 EPSTEIN, P. J. 

 MANELLA, J.