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Filed 12/6/23 P. v. Hebebrand CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.
TIMOTHY LOUIS HEBEBRAND ,

Defendant and Appellant. C096282 (Super. Ct. No. STK

- CR

- F

DV

- 2018

- 0001343 )

In 2019, d efendant Timothy Louis Hebebrand pleaded no contest to kidnapping and corporal injury to a spouse/cohabitant/parent of a child. I n 2020 , the trial court imposed
but suspended the sentence and granted defendant formal probation. Beginning i n May 2021, t he prosecution filed three successive affidavits seeking orders to show cause, alleging probation violations. On October 18, 2021, b efore t he hearings on the orders to
show cause regarding the alleged probation violations, defendant moved to represent
himself under Faretta v. California (1975) 422 U.S. 806 ; the trial court denied the motion

. Ultimately, the court found defendant violated pro bation , revoked probation , and executed the previously suspended sentence.2

On appeal, defendant asserts the trial court : (1) erred in denying his Faretta motion, (2) violated Penal Code section 654 1 by failing to stay the sentence imposed on
count 3 , an d ( 3 ) erred in its imposi tion of sentence based on changes made by Senate Bill No. 567 (2021

- 2022 Reg. Sess.) (Stats. 2021, ch. 731) (Senate Bill No. 567) . He adds that he is entitled to additional custody credits

. The People concede the trial court erred in denying defendant’s Faretta motion.
W e agree and reverse the order denying the motion. We vacate the orders following the error, including execution of sentence that resulted in the judgment being appealed . We
remand the case to the trial court for further proceedings as necessary . In light of this determination, we address defendant’s sentencing contentions only briefly

. BACKGROUND
As t he underlying facts have no bearing on the issues presented on appeal , we do

not recite them here. It suffices to say that a n information charged defendant with torture (§ 206; count 1), kidnapping (§ 207, subd. (a); count 2), corporal injury to a spouse/cohabitant/parent of a child (§ 273.5, subd. (a); count 3), criminal th reats (§ 422, subd. (a); count 4), and violation of a court order (§ 273.6, subd. (a); count 5). The information alleged defendant had a prior strike (§§ 1170.12, subd. (b), 667, subd. (d)), and, i n connection with counts 2 through 4, th at he inflicted gr eat bodily injury on the
victim under circumstances involving domestic violence (§ 12022.7, subd. (e )). On November 8, 2019, defendant pleaded no contest to counts 2 and 3 and admitted to the great bodily injury enhancement on count 2. The trial court dismissed the remaining counts and struck the remaining allegations. On January 24, 2020, t he court impose d a prison sentence of 11 years consisting of the upper term of eight years on count 2 , a concurrent middle term of three years on count 3 , and three years on the section 12022.7,

1 Undesignated statutory references are to the Penal Code.3

subdivision (e) enhancement

. T he court suspended execution of the sentence and granted
defendant a five

- year term of formal probation. Defendant did not appeal from the imposition of sentence. On May 17, 2021, the prosecution filed an affidavit seeking an order to show cause , stating defendant had violated probation by commit ting robbery (§ 211 ) and taking a vehicle without consent ( Veh

. Code , § 10851, subd

. (a) ) ; the court issued the order to show

cause

. The prosecution filed two subsequent affidavits seeking orders to show cause, alleging defendant violated probation by com mitting misdemeanor vandalism (§ 594,
subd. (b)(2)) and felony vandalism (§ 594, subd. (b)(1))

. On July 23, 2021, following an evaluation, defendant was found ineligible for
mental health court or mental health diversion.
As we discuss in more detail post , on October 18, 2021, defendant brought a Faretta motion, requesting that he be allowed to re present himself. The trial court denied
the motion. On March 24, 2022, the trial court found defendant had violated probation. T he court revoked probation and committed defendant to state prison for execution of the previously suspended sentence

. Defendant timely appealed; the case was fully briefed on Oc tober 3, 2023, and assigned to this panel shortly thereafter.
DISCUSSION
I Right to Self

- R epresentation Defendant asserts the trial court erred in denying his October 18, 2021, request to represent himself. The People agree and concede the matter shoul d be remanded and the4

parties “returned to the position they were in before the court erred.” We agree with the parties

. A. Additional Background On October 18, 2021, defense counsel indicated defendant wanted to represent
himself. The trial court aske d defendant why he wanted to represent himself. Defendant responded: “ [S] ince I’ve been in custody, I’ve had a few motions and different law and things I’ve expressed to my lawyer that I feel like I would like filed,

. . . some different things looked at , from old sentencing transcripts, to my illegal arrest, to missing property, to a bunch of different things that I’ve expressed raised a concern to me. [¶] And just some different things, like the DA

-- certain things the DA said. I want to move to
dis qualify the District Attorney. Some things I feel are wrong. [¶] I just feel like some things have been wrong. I feel like some things have been wrong. I would like to go ahead and try to see if I can maybe somehow create a little bit of

-- you know, a little bit of, what I say, is justice a little bit. You know? And see what

-- get some rulings on some of these things I feel are not right, some things I feel are being overlooked, some things I feel are being not adequately presented correctly.”
T he colloquy between defendant and the court continued: “THE COURT: What is your educational level, sir? “THE DEFENDANT: I have a GED from Tracy Adult School. I went to 12th grade. I dropped out in 12th g rade. “THE COURT: Okay. So you have a GED? “THE DEFENDANT: Yeah. “THE COURT: Have you attended any college? “THE DEFENDANT: I’m a certified welde r. I

-- I graduated at a welding school in Stockton, probably about five years ago. I’m certified in MIG, TIG, and stick. “THE COURT: Do you have any further college? “THE DEFENDANT: No, sir, I don’t.5

“THE COURT: Okay. And you understand every attorney in this state has at least graduated from college? The vast, vast majority have graduated from law school and have passed the California Bar Examination. “Do you understand that, sir? “THE DEFENDANT: Yes, sir, I do. “THE COURT: And you understand this prosecutor’s a young man, but I assume he’s been a prosecutor for a number of years. So he’s prosecuted cases.

“ I see that you have some felony matters going on.

“ You understand this is kind of serious business? “THE DEFENDANT: Yes, s ir, I do.

“ [¶] .

. . [¶]
“THE COURT:

. . . Now, sir, have you had any psychological issues? “THE DEFENDANT: I had a competency hearing in the beginning of this case, [ 2 ] and [defense counsel] was there through that. .

. . And [defense counsel] picked up the case after that, and then he walked me through that, and then pulled me out of, basically, competency court. I had the hearing, seen a doctor. They said you’re fine. Pulled me out of that, and now I’ve been with him ever since. “He did hire a doc tor, and he does state that there might be some medical issues going. He’s not sure if they’re psychological or if it’s physical or what’s going on. We do have a doctor we’re talking to and

-- but other than that, I’ve never took any medication. I

never had anything like that, no psychological health problems, no nothing.
“THE COURT: Mr. Hebebrand, knowing what you know about this situation and what’s going on, if you were the judge, would you let yourself be your own lawyer? “THE DEFENDANT: Yeah.

“ THE COURT: Why?

2 On July 15, 2021, the trial court found defendant competent to stand trial. (1 CT 257)6

“THE DEFENDANT: Why? Because it’s my Constitutional right, first of all.

“ Second of all, I’ve expressed to you some concerns about motions, different things

-- expressed to you that I understand what an illegal search is. I’ve express ed to you I understand what competency hearings are, the proceedings, different things, and I believe the Constitutional right would override. I mean, it is .

. . my Constitutional right to represent myself.

“ [¶] .

. . [¶]
“THE COURT: Sir, I disagree w ith probably 90 percent of what you’ve just said. I don’t need to go through the file. The reason why counsel has not filed these motions or made these arguments, ‘cause he knows they’re going absolutely nowhere. Why should he waste anybody ’s time and his effort when he knows what the resul t is going to be? Why commit legal suicide? “Secondly, you don’t know the law. You’ve had no legal training or education other than your cases. You really don’t know what’s going on. You’re not prepared to represent yourself. “The only thing you said that I agree with is that the [ Faretta ] case, which came down from the United States Supreme Court, said that clients do have the Constitutional right to represent themselves. That’s why we’re going through this hearing right now. That’s the only thing you got right. “What’s going to happen is if I were to grant this motion, you’re going to get nowhere. And at some point down the road, you’d have to be appointed counsel again.”
Defense counsel indicate d that “some of what [defendant] said about help ing with the doctor, that is sort of a .

. . process that is in the works at the moment. And I’m still trying to gather some information .

. . in that regard.” The trial court indicated it was concerned about defendant’s competence “with these psycholo gical

-- or probably potential mental health issues being involved.” The court stated its tentative ruling would be to deny defendant’s Faretta motion without7

prejudice “to being re

- raised pending sort of these mental health issues being resolved or
furth er reports or inquiries.”
T he trial court then denied defendant’s Faretta motion without prejudice, concluding: “You would not be a fair match for the prosecutor. You got no legal training. You don’t

-- you’re not college educated. [¶] I understand maybe you’ve been through the system. I understand you’re not happy with the resu lts or what’s going on, but at this point with the possibility of some mental issues going on and the discovery has not been apparently completed or the investigation or what your counsel wants to do in preparation of the case, I’m going to deny your motio n under [ Faretta v. California ] without prejudice. Meaning, that you can re

- raise it when you feel appropriate, but I don’t think there’s been a sufficient showing that you are competent or should exercise your Constitutional right to represent yourself. [¶]

. . . In my mind, because of this potential mental issue, you really are not competent to represent yourself legally in this case at this point.” On March 15, 2022, the trial court denied defendant’s second Faretta motion. On April 25, 2022, afte r the court found defendant had violated probation, but prior to executing the previously suspend ed sentence, the court granted defendant’s third request to represent himself

. B

. The Constitutional Right to Self

- R epresentation

“ A defendant has a federal constitutional right to self

- representation if he or she voluntarily and intelligently so chooses. ” ( People v. Thomas (2023) 14 Cal.5th 327, 397, citing Faretta v. California , supra , 422 U.S. at pp. 835

- 836.) “ When a defendant makes a timely and unequivocal request for self

- representation, and does so knowingly, voluntarily, and intelligently, a trial court must grant the defendant ’ s request. ” ( Thomas , at p. 397.) When a defendant requests self

- representation, the trial court must determine both (1) that
the defendant is competent to waive the right to counsel, that is, the defendant has the ability to understand the proceedings and the dangers and disadvantages of self

-8

representation, and (2) that the defendant’s decision to forgo the assistance of counsel i s knowing and voluntary. ( Godinez v. Moran (1993) 509 U.S. 389, 400

- 401 ( Godinez ) .)

“ The question whether the defendant ’ s assertion of the right to self

- representation and waiver of the right to counsel was knowing and intelligent is reviewed de novo. ” ( People v. Orosco (2022) 82 Cal.App.5th 348, 358, citing People v. Marshall (1997)
15 Cal.4th 1, 24 .) “ A trial court ’ s determination regarding the defendant ’ s competence to represent himself is reviewed for substantial evidence. ” ( Oro sco , at p. 358, citing People v. Johnson (2012) 5 3 Cal.4th 519, 531.)
C

. Analysis Regarding competency, t he trial court asked defendant in this case if he had any psychological issues, and defendant no ted he had been found competent to stand trial. He had also been found ineligible for mental health court or mental health diversion. A doctor had apparently indicated “there might be some medical issues,” but defendant was “not sure if they’re psycholog ical or if it’s physical or what’s going on.” Defendant continued, “We do have a doctor we’re talking to .

. . but other than that, I’ve never took any medication. I never had anything like that, no psychological health problems, no nothing.”
Defense co unsel indicated “some of what [defendant] said about helping with the doctor,
that is sort of a .

. . process that is in the works at the moment. And I’m still trying to gather some information

. . . .” Although t he trial court expressed concern about d efendant’s competence “with these psychological

-- or probably potential mental health issues being involved,” and raised “the possibility of some mental issues going on , ” t his is not sufficient to deny
defendant self

- representation. Although “a trial cou rt may exercise its discretion to deny
self

- representation where a defendant suffers from a severe mental illness such that he or she is unable to perform the basic tasks necessary to present a defense [,] ” ( People v. Mickel (2016) 2 Cal.5th 181, 20 8 ) , here the court’s concern about “potential” and9

“possib[le]” mental health issues do es not rise to this level. Nor does this concern appear to be warranted based on the record or sufficient to justify denial of defendant’s motion

. As for his understanding of the proceedings, d efendant explained he wanted to represent himself to make certain motions and obtain rulings on matters he felt were being
overlooked and presented incorrectly

. The trial court confirmed defendant understood the proceedings and the risks and disadvantages associated with representing himself, including that he lacked the training, education, and experience of attorneys such as the prosecutor. The court also confirmed defendant understood there were felony matters involved, and that the c ase was “serious business.” Defendant repeatedly represented that
he understood. The “ competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right , not the competence to represent himself. ” ( Godinez, supra , 509 U.S. at p. 399.) We conclude th is record indicate s defendant ha d the ability to understand the proceedings and the dangers and disadvantages of self

representation , and there is no t substantial evidence he lacked the competence to waiv e his right to counsel

. Further, based on the record and in particular the colloquy , we conclude defendant’s decision to represent himself was knowing, voluntary, and intelligent. Moreover, defendant was unwavering and clear in his desire to represent him self and the reasons he
wished to do so. H is request was unequivocal

. I t was not “an insincere request or one made under the cloud of emotion” which “may be denied.” ( People v. Marshall , supra , 15 Cal.4th at p. 21.) Lastly, defendant’s request was timely. He made his request on October 18, 2021. On that date, defense counsel indicated , “we are scheduled for a preliminary hearing that’s set for next Monday. The prosecutor and I

. . . have agreed that we’re going to continue

. . . the hearing any way [ sic ] .” He then stated, “regardless of what happens at this particular motion, when we come to court next Monday, we’re going to pick other dates to10

come back to court.” The probation violation h earings were held on March 24, 2 022, five
months later. Beyond the trial court’s concern about competency , which we have addressed and
found insufficient , it appears the court denied defendant’s request because defendant did not know the law, lacked legal training and education, and w ould not be a fair match for the prosecutor. T hese are not grounds for denying defendant’s request to represent himself. (See Godinez , supra , 509 U.S. at pp. 400

- 401 ; People v. Thomas , supra , 14 Cal.5th at p. 397.) The “ critical question is not whether a self

- represented defendant meets the standards of an attorney, or even whether a defendant is capable of conducting
an effective defense. ” ( People v. Mickel , supra , 2 Cal.5th at p. 206. ) We agree with the parties that the trial court improperly denied defendant’s motion to represent himself.
Because t he erroneous denial of a Faretta motion is reversible per se ( People v. Becerra (2016) 63 Cal.4th 511, 520) , we shall reverse the order denying the motion, vacate all orders that followed the error, including the execution of sentence that resulted in the judgment being appealed, and remand the case to the trial court for further proceedings as
necessary

. If defendant again seek s to represent himself, the request shall be evaluated
based on the record before the trial court at the time of the ruling on any such motion and shall be considered in light of this opinion.
II
Section 654
Defendant asserts the trial court violated sect ion 654 by failing to stay the sentence imposed on count 3 . The People respond that, because defendant did not appeal from the order granting probation and imposing and suspending sentence, we lack jurisdiction to address the issue. We agree that we must dismiss this claim for lack of jurisdiction.

“ ‘[T]he filing of a timely notice of appeal is a jurisdictional prerequisite. “Unless the notice is actually or constructively filed within the appropriate filing period, an appellate court is without jur isdiction to determine the merits of the appeal and must11

dismiss the appeal.” ’ ” ( People v. Denham (2014) 222 Cal.App.4th 1210, 1213, quoting
Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 113 .) An order granting probation and imposing but suspending execution of the sentence is an appealable order. (§ 1237, subd. (a); People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.) “In general, an appealable order that is not appealed becomes final an d binding and may not subsequently be attacked on an appeal from a later appealable order or judgment.” ( Ramirez , at
p. 1421.)
Defendant ’ s failure to file a timely appeal from the January 2020 order granting probation and imposing and suspending senten ce , in which the trial court did not stay the sentence imposed on count 3 pursuant to section 654 , deprives us of jurisdiction to address
his section 654 claim. Accordingly , w e will dismiss this portion of the appeal. In doing so, we note that defendant is not precluded from raising this claim when he is again properly before the trial court for a sentencing proceeding . A court with jurisdiction may address the claim that a sentence is unauthorized at any time.
II I Remaining Sentencing Claims
D efendant next asserts the trial court erred in its imposi tion of sentence in light of changes made to sentencing laws by Senate Bill No. 567

. Unlike defendant’s contention concerning section 654, defendant’s failure to raise this issue o n appeal from the 2020 order granting probation and imposing and suspending sentence does not deprive us of jurisdiction to address the matter

. This is because Senate Bill No. 567 became effective on January 1, 2022 , well aft er the trial court made that order

. ( S ee People v. Martinez (2020)
54 Cal.App.5th 885, 894 [the defendant could not have raised Senate Bill No. 136 (2019

- 2020 Reg. Sess.) issue on appeal from supervision order because that legislation had not
been enacted at that time; failure to file such a direct appeal does not preclude the
defendant from taking advantage of ameliorative amendments that took effect while he was appealing from subsequent revocation of his supervision and execution of sentence ]

. )12

Neverth eless , as the parties agree, in light of our determination on the Faretta issue , t hi s contention is moot. In the event of any future sentencing, defendant will have the opportunity to raise any issues he deems appropriate under Senate Bill No. 567. Finally, d efendant a dds that, when it executed the sentence, the trial court erred in awarding custody credits

. Again, based on our determination on the Faretta claim , this
issue is moot. D efendant requests that, in the event we reverse, we provide instructions for the trial court to follow in awarding custody credits. We decline to instruct the trial court

on aw ard ing custody credits at a theoretical sentencing proceeding ; we trust the sentencing court will correctly apply current law

. DISPOSITION
The section 654 claim on appeal is dismissed for lack of jurisdiction

. T he trial court’s October 18, 2021 , order denying defendant’s Faretta motion is reversed. All orders entered thereafter are vacated, including the execution of sentence that resulted in the judgment being appealed . The case is remand ed f or further proceedings as necessary. If defendant ag ain seeks to represent himself, the request shall be evaluated based on the record before the court at the time of the ruling on any such motion and shall be considered in light of this opinion

.

/s/ Duarte, Acting P. J.

We concur:

/s/ Renner, J.

/s/ Krause, J.