1

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or 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-FDV-2018-0001343)

In 2019, defendant Timothy Louis Hebebrand pleaded no contest to kidnapping and 

corporal injury to a spouse/cohabitant/parent of a child. In 2020, the trial court imposed 

but suspended the sentence and granted defendant formal probation. Beginning in May

2021, the prosecution filed three successive affidavits seeking orders to show cause, 

alleging probation violations. On October 18, 2021, before the 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 probation, 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 6541 by failing to stay the sentence imposed on 

count 3, and (3) erred in its imposition 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. 

We 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 the underlying facts have no bearing on the issues presented on appeal, we do 

not recite them here. It suffices to say that an 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 threats (§ 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, in connection with counts 2 through 4, that he inflicted great 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, the court imposed 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. The 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 committing 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 committing 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 represent himself. The trial court denied 

the motion. 

On March 24, 2022, the trial court found defendant had violated probation. The 

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 October 3, 2023, and 

assigned to this panel shortly thereafter. 

DISCUSSION

I

Right to Self-Representation

Defendant asserts the trial court erred in denying his October 18, 2021, request to 

represent himself. The People agree and concede the matter should be remanded and the 
4

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 asked 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 

disqualify 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.” 

The 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 grade.

“THE COURT: Okay. So you have a GED?

“THE DEFENDANT: Yeah.

“THE COURT: Have you attended any college?

“THE DEFENDANT: I’m a certified welder. 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, sir, 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 doctor, 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 expressed 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 with 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 result 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 indicated that “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 . . . in that regard.” 

The trial court indicated it was concerned about defendant’s competence “with 

these psychological -- or probably potential mental health issues being involved.” The 

court stated its tentative ruling would be to deny defendant’s Faretta motion without 
7

prejudice “to being re-raised pending sort of these mental health issues being resolved or 

further reports or inquiries.” 

The 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 results 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 motion 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, after the court found defendant had violated probation, but prior to 

executing the previously suspended sentence, the court granted defendant’s third request to 

represent himself. 

B. The Constitutional Right to Self-Representation

“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 is 

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.” (Orosco, at p. 358, citing 

People v. Johnson (2012) 53 Cal.4th 519, 531.)

C. Analysis

Regarding competency, the trial court asked defendant in this case if he had any 

psychological issues, and defendant noted 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 psychological 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 counsel 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 the trial court expressed concern about defendant’s competence “with 

these psychological -- or probably potential mental health issues being involved,” and 

raised “the possibility of some mental issues going on,” this is not sufficient to deny 

defendant self-representation. Although “a trial court 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, 208), here the court’s concern about “potential” and 
9

“possib[le]” mental health issues does 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, defendant 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 case 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 this record indicates defendant had the 

ability to understand the proceedings and the dangers and disadvantages of selfrepresentation, and there is not substantial evidence he lacked the competence to waive 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 himself and the reasons he 

wished to do so. His request was unequivocal. It 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 to 
10

come back to court.” The probation violation hearings were held on March 24, 2022, 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 would not be a fair match for 

the prosecutor. These 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 the 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 seeks 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 section 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 jurisdiction to determine the merits of the appeal and must 
11

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 and 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 sentence, 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, we 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. 

III

Remaining Sentencing Claims

Defendant next asserts the trial court erred in its imposition 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 on 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 after the trial court made that order. (See 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

Nevertheless, as the parties agree, in light of our determination on the Faretta issue, this 

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, defendant adds 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. Defendant 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 awarding 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. The 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 remanded for further proceedings as necessary. 

If defendant again 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.