Filed 1/3/24 P. v. Baker CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

TOMMIE LEE BAKER,

Defendant and Appellant.

 B325893

 (Los Angeles County

 Super. Ct. No. VA095371)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Roger T. Ito, Judge. Affirmed.

Jared G. Coleman, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle and David A. Voet, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

Defendant and appellant Tommie Lee Baker seeks reversal 

of his sentence and remand for resentencing, asserting the trial 

court’s denial of his motion to represent himself in a resentencing 

proceeding was an abuse of discretion as well as a violation of the

Sixth Amendment to the United States Constitution and his right

to due process. We find no merit in defendant’s arguments and 

thus affirm the judgment.

BACKGROUND1

A jury convicted defendant of the attempted murder of 

Antonio Godinez (count 1) and found he personally used, 

intentionally discharged, and proximately caused great bodily 

injury with a firearm (Pen. Code, § 12022.53, subds. (b)-(d)),2 and 

personally inflicted great bodily injury (§ 12022.7, subd. (a)). 

Defendant was also convicted of four counts of attempted 

carjacking, and during each crime defendant personally used a 

firearm (§ 12022.53, subd. (b)). As to the attempted carjacking 

from Godinez (count 2), the jury found defendant inflicted great 

bodily injury (§ 12022.7, subd. (a)). In October 2007 defendant 

was sentenced as a second strike offender to an aggregate 

sentence of 58 years to life in prison. On appeal, this court held 

the sentences for the attempted carjacking alleged in counts 3 

and 4 were erroneously stayed, and the matter was remanded for 

resentencing. (People v. Baker (May 7, 2009, B204173) [nonpub. 

1 We do not include a summary of the evidence adduced at 

trial, as it is unnecessary to the determination of the issues 

raised on appeal. We provide a timeline to address arguments 

made by defendant regarding delays.

2 All further unattributed statutory references are to the 

Penal Code.
3

opn.].) The trial court resentenced defendant to the same total 

term by striking the order to stay counts 3 and 4, and instead 

imposing the concurrent middle terms of five years for each 

count.

In 2018, the California Department of Corrections and 

Rehabilitation notified the trial court of inconsistencies between 

the abstract of judgment and a related minute order, suggesting 

the possibility of an unauthorized sentence. When the case was 

called for resentencing on January 15, 2019, defendant moved 

pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta) to 

have appointed counsel relieved and to represent himself. The 

trial court reviewed the court record and found defendant had 

filed a “whole bunch” of petitions for habeas corpus petitions. 

Defendant volunteered that the court had sent him a cease and 

desist letter. The court also found defendant was originally 

granted pro. per. status in January 2007, and asked for 

reappointment of counsel in April 2007. The court noted that 

after conviction defendant filed a number of habeas petitions, as 

well as various motions before three different judges. Based on 

these findings the trial court denied the Faretta motion and noted 

trial counsel had been adequate counsel through trial and to the 

present. The court observed defendant to be “playing games.”

In response, defendant stated reasons for his 

dissatisfaction with appointed counsel. The trial court asked 

whether defendant was requesting new counsel. Defendant said 

he was, prompting the court to conduct a Marsden hearing.3 

Defendant explained that counsel had been ineffective prior to 

his 2007 trial. The court denied the Marsden motion.

3 See People v. Marsden (1970) 2 Cal.3d 118.
4

Defendant was resentenced and again appealed, citing 

sentencing errors and asserting that the trial court erred by 

denying defendant’s request to represent himself at the 

resentencing hearing. (People v. Baker (May 6, 2020, B295721) 

[nonpub. opn.].) Due to sentencing errors, we again remanded 

the matter with directions regarding resentencing, noting, “On 

remand, defendant can again request self-representation, and the

trial court can consider that request based on the facts known at 

the time.” (Ibid.)

On October 30, 2020, after remand, defendant requested 

appointment of new counsel. A new bar panel attorney was 

appointed on October 30, 2020, and a resentencing hearing was 

scheduled for November 30, 2020. After several continuances due 

to defendant’s medical condition, a hearing was held on May 19, 

2021, for resentencing and to consider defendant’s renewed 

Faretta motion. After hearing from defendant regarding the

Faretta motion, and warning defendant of the drawbacks of selfrepresentation, the trial court granted the motion, relieved 

counsel, and continued the matter to June 2, 2021.

On that date the court advised it had been notified that 

defendant’s pro. per. privileges had been revoked due to concerns 

about his mental health and possible self-harm by the sheriff’s 

department. The trial court declared a doubt about defendant’s 

mental status pursuant to section 1368. The court revoked 

defendant’s pro. per. status, appointed stand-in counsel, and 

continued the matter to the following week. A bar panel attorney 

was appointed and requested a continuance to investigate the 

sheriff’s department report. The proceedings were suspended.

On June 29, 2021, the new attorney told the court that 

unlike the last court date defendant appeared to be “quite 

competent,” but that he would return the next day with an 
5

evaluation order. The matter was continued to July 29, 2021 

pending an evaluation pursuant to section 1368. On that date, 

defense counsel reported the psychologist needed an additional 

30 to 45 days due to limited video availability. The matter was 

continued twice, awaiting reports from the psychologist.

On December 21, 2021, before the completion of defendant’s 

evaluation, the trial court allowed defense counsel to withdraw as 

counsel for defendant, as defendant had written a letter to the 

court making allegations against counsel, creating an 

irreconcilable conflict. The court appointed another bar panel 

attorney, who requested a three-week continuance. On 

January 10, 2022, the court appointed still another bar panel 

attorney. On January 11, 2022, defendant’s handwritten pro. per.

Faretta motion was filed. On February 1, 2022, defendant 

appeared with new counsel, who informed the court that the 

psychological evaluation had not been completed due to the 

conflict with prior counsel. The new attorney, McCurry, asked to 

bring in a psychologist of his choosing and for time to do so.

The competency hearing was continued several times at 

defense counsel’s request due to the medical evaluation not being

completed. On September 1, 2022, the parties submitted the 

issue on the psychologist’s report. After review the trial court

found defendant was fully aware of the nature of the proceedings 

against him and competent to proceed with resentencing on

September 22, 2022. Defendant did not mention a motion to 

represent himself.

On September 22, 2022, defendant appeared with counsel, 

who had filed an extensive sentencing memorandum advocating 

full resentencing due to ameliorative changes to the law. The 

trial court had reviewed the memorandum and the attachments, 

including letters of support, prison accomplishments, defendant’s 
6

age at the time of the crimes (25 years), and evidence of a 

troubled childhood due to his mother’s longstanding drug abuse 

issue. The court agreed full resentencing was warranted and 

sentenced defendant to a total term of 20 years, eight months 

plus 25 years to life in prison. The court chose the middle term 

over the high term as to count 1, doubled as a second strike to 14 

years, plus the firearm enhancement pursuant to section 

12022.53, subdivision (d) of 25 years to life. The court then 

imposed one-third the middle term of one year eight months as to 

count 2, without doubling as a second strike. The firearm and 

great bodily injury enhancements as to that count were stricken. 

The court imposed but stayed five years as to each count 3 and 4, 

and struck the firearm enhancements as to those counts. As to 

count 5, the court imposed the middle term of one year eight 

months plus one-third the enhancement alleged pursuant to 

section 12022.53, subdivision (b) of three years four months.

Defendant did not mention a motion to represent himself 

and spoke only one word during the 30 minute hearing. After the 

court pronounced sentence and informed defendant of his appeal 

rights, the court asked defendant if he had any questions about 

his appeal rights. Defendant had none.

A timely notice of appeal from the judgment was filed.

DISCUSSION

Defendant contends: “The sentence must be reversed

because appellant was denied his right to represent himself in 

violation of the Sixth Amendment and a denial of due process of 

law.” (Boldface omitted.) 

The Sixth Amendment of the United States Constitution

gives a defendant the right to be represented by counsel and the 

right of self-representation. (Faretta, supra, 422 U.S. at pp. 819-
7

820.) The Sixth Amendment right to self-representation may be 

asserted by any defendant competent to stand trial. (Godinez v. 

Moran (1993) 509 U.S. 389, 399-400.)4

We construe defendant’s arguments to be that the trial 

court abused its discretion by denying defendant’s request to 

represent himself on multiple occasions, for taking too long to 

resolve the competence issue, and the trial court committed 

structural error by failing to sua sponte reinstate defendant’s pro.

per. status once he was found competent to proceed with 

resentencing. Defendant contends that an abuse of discretion 

standard of review applies to the first two contentions, and the 

alleged structural error is reversible per se.

Defendant seems to contend the trial court abused its 

discretion in denying his right to self-representation because

appointed counsel testified on June 29, 2021, that defendant was 

competent, aware of the issues he faced at resentencing, yet the 

trial the court delayed granting his request for selfrepresentation. Even if counsel’s testimony were enough, 

appointed counsel did not testify but merely stated to the court 

that unlike their last meeting, defendant “seemed quite 

competent” that day. Moreover, counsel made no objection to the 

court’s suspension of criminal proceedings and indeed selected a 

court-approved expert. Citing People v. Horton (1995) 11 Cal.4th 

1068, 1108, defendant acknowledges that once doubt of 

4 Defendant does not argue that the Sixth Amendment or 

state law allows a person to be sentenced while mentally 

incompetent. “A person shall not be tried or adjudged to 

punishment . . . while that person is mentally incompetent.” 

(§ 1367, subd. (a).) Indeed, doing so would violate state law and 

federal due process guarantees. (People v. Ary (2011) 51 Cal.4th 

510, 513; see Pate v. Robinson (1966) 383 U.S. 375, 385.)
8

competency was declared and the criminal proceedings were 

suspended, the court lacked jurisdiction to rule upon a Faretta

motion. The trial court was required to appoint counsel until the 

conclusion of the competency proceedings. (See People v. Lightsey

(2012) 54 Cal.4th 668, 696, fn. 11, 697-698.) Failure to do so 

would have been a reversible miscarriage of justice under article 

VI, section 13 of our state Constitution. (Lightsey, at p. 702.)

The People observe defendant makes no claim the trial 

court’s revocation of his pro. per. status was error. We agree 

defendant does not challenge the court’s discretion to suspend 

proceedings and obtain a competency evaluation after the report 

of symptoms of mental illness. However, defendant does appear 

to claim that revocation of his pro per status was nevertheless an 

abuse of discretion because the competency determination was

such a “slow, inconsistent, and confusing process [that it] 

effectively eclipsed his constitutional right to autonomy in 

directing his case.” Defendant claims he repeatedly asked to 

represent himself during the 15 months between the court’s 

suspension of proceedings to the determination of his competence, 

but the requests were denied without giving any reason.

5 

Defendant also complains that when competence was reinstated 

the court failed to reinstate his pro. per. status on its own.

Defendant argues the revocation of the grant of an order 

granting pro. per. status is reviewed under an abuse of discretion

5 In making these assertions, defendant fails to refer to the 

record. We found a single request after doubt was declared and 

have described the continuances and the reasons for them in the 

Background section. Defendant was present at about half the 

hearings. He thus exaggerates claims to have repeatedly 

requested self-representation during that time.
9

standard. As it is defendant who claims discretion was abused, it 

is his burden to demonstrate the alleged abuse, and he must do 

so by showing the court’s exercise of discretion was irrational or 

arbitrary, and not “‘grounded in reasoned judgment and guided 

by legal principles and policies appropriate to the particular 

matter at issue.’” (People v. Superior Court (Alvarez) (1997) 14 

Cal.4th 968, 977.) Moreover, it is always the complaining party’s 

burden to demonstrate a miscarriage of justice suffered as a 

result of an abuse of discretion. (Denham v. Superior Court

(1970) 2 Cal.3d 557, 566.) A miscarriage of justice occurs when it 

appears that a result more favorable to the appealing party 

would have been reached in the absence of the alleged errors. 

(People v. Watson (1956) 46 Cal.2d 818, 836; see Cal. Const., art. 

VI, § 13.) We note counsel was thorough in his advocacy, 

resulting in defendant’s aggregate prison term being reduced 

from 58 years to life in prison to 45 years to life. Defendant does 

not suggest he could have achieved a different outcome. As 

defendant has made no effort to demonstrate either an abuse of 

discretion or prejudice, we need not undertake any further 

discussion of defendant’s arguments on this issue.

Defendant also appears to claim the trial court should have 

reinstated his pro. per. status without further request, and a 

failure to do so violated his Sixth Amendment under the United 

States Constitution. He argues this was structural error, 

reversible without regard to prejudice. Defendant adds he was 

unable to make such a request because he was forced to proceed 

with unwanted counsel and was thus not given the opportunity to 

renew his request at the resentencing hearing.

The People respond that defendant did in fact have an 

opportunity to renew his request for self-representation. On 

September 1, 2022, the court declared defendant competent to 
10

proceed with resentencing. At that time, counsel told the court 

he intended to file additional documentation setting forth 

defendant’s position and requested time to do so. Defendant said 

nothing at that hearing.6 The September 22, 2022 sentencing 

hearing lasted about 30 minutes. Defendant appeared with 

counsel, and at no time did defendant renew his request to 

represent himself. Defendant demonstrated many times in 

hearings prior to June 2, 2021, that he had no compunction 

against interjecting his views in open court. Yet he did not do so 

at resentencing even when the court asked both counsel whether 

there was anything else they wished to say. Nor did defendant 

speak up after the trial court imposed a reduced sentence and 

then asked defendant whether he had any questions about his 

appeal rights.

We agree with the People that by his conduct defendant 

abandoned or withdrew any request to represent himself. A 

“Faretta right, once asserted, may be waived or abandoned.” 

(People v. Dunkle (2005) 36 Cal.4th 861, 909, disapproved on 

another point in People v. Doolin (2009) 45 Cal.4th 390, 421, 

fn. 22.) “A defendant may, by his or her conduct, indicate 

abandonment or withdrawal of a request for self-representation.” 

(People v. Weeks (2008) 165 Cal.App.4th 882, 887.) For example, 

where a self-represented defendant acquiesces in the 

participation of stand-by counsel, he may not complain on appeal 

6 Defendant incorrectly asserts that the trial court found him 

competent and sentenced him the next day. According to the 

record, the trial court sentenced defendant three weeks after 

finding him competent. We have examined the record de novo to 

determine whether defendant effectively requested the right to 

self-representation. (See People v. Dent (2003) 30 Cal.4th 213, 

218.)
11

that he was denied his right to self-representation. (People v. 

Dunkle, supra, at p. 909, citing McKaskle v. Wiggins (1984) 465 

U.S. 168.)

In People v. Kenner (1990) 223 Cal.App.3d 56, 62 (Kenner),

as here, defendant “had ample opportunity to call the court’s 

attention to the neglected Faretta motion, but did not.” Also as in 

Kenner, defendant may have “had second thoughts about the 

wisdom of representing himself and abandoned the idea. [¶] 

Defendants who sincerely seek to represent themselves have a 

responsibility to speak up.” (Ibid.) The Kenner court concluded 

that “it is reasonable to require the defendant who wants to take 

on the task of self-representation to remind the court of the 

pending motion. Therefore, we hold that on this record, where 

appellant had both time and opportunity to follow up on his 

request for a hearing on his Faretta motion, and failed to do so, 

he must be deemed to have abandoned or withdrawn that 

motion.” (Ibid.; accord, People v. Skaggs (1996) 44 Cal.App.4th 1,

5-9.)

Defendant may have been influenced by counsel’s extensive 

sentencing memorandum with mitigation evidence, advocating 

full resentencing due to ameliorative changes to the law. In 

agreeing full resentencing was warranted, the court was guided 

by the memorandum and evidence, particularly the evidence of 

defendant’s troubled childhood and substance abuse, the support 

of his family, and his age (25 years) at the time of the offense. 

The court complimented counsel on his presentation and noted 

that although defendant was quite agitated in court with prior 

counsel, he had been exceptionally courteous and professional in 

his demeanor since McCurry’s appointment.

Moreover, at sentencing the only Faretta motion before the 

court was defendant’s pro. per. motion filed in January 2022 
12

while proceedings were suspended. There had been no ruling,

and it was incumbent upon defendant to request such a ruling. 

(People v. Skaggs, supra, 44 Cal.App.4th at pp. 7-8.) By failing to 

do so and never raising the issue again, defendant abandoned the 

motion. (Ibid.)

Defendant contends that renewing the motion would have 

been futile, and thus his failure to do so did not constitute a 

waiver. He argues the combination of denials and inordinate 

delays would make any further requests appear to be futile. “It 

may be that where a defendant has been repeatedly rebuffed in 

his request to proceed in propria persona an inference of futility 

may be indulged to obviate the inference from his appearance 

with retained counsel that he intended to give up his right to 

proceed in propria persona.” (People v. Weeks, supra, 165 

Cal.App.4th at p. 889, italics added.) Defendant fails to refer to 

the record in support of his argument of many requests and 

denials, which the record does not in fact support. Defendant 

was granted pro. per. status in January 2007, and then he asked

that counsel be appointed in April 2007. His next request, on

January 15, 2019, was denied when the trial court suspected he 

was “playing games.” His subsequent request was granted in 

May 2021. This does not suggest that a renewed request upon 

being declared competent to proceed would have surely been 

denied.

Defendant next relies on United States v. Arlt (9th Cir. 

1994) 41 F.3d 516, 523, where the court did not find a waiver 

when defendant appeared with counsel, because the defendant 

had previously “stated his request clearly and unequivocally and 

the judge has denied it in a[n] equally clear and unequivocal 

fashion.” Defendant also relies on People v. Tena (2007) 156 

Cal.App.4th 598, 609-610, and quotes People v. Butler (2009) 47 
13

Cal.4th 814, 825, footnote 3, to argue that “defendant was not 

required to renew his request after it was conclusively denied.” 

Defendant’s reliance on these cases is misplaced, as defendant’s 

pro. per. status was not conclusively denied after an unequivocal 

request, or any request, but revoked as required due to doubts 

about his competence. (See People v. Lightsey, supra, 54 Cal.4th 

at pp. 696, fn. 11, 697-698.) Moreover, even though the trial 

court had conclusively denied one request in the past before 

granting another, defendant’s silence after being found 

competent does not suggest futility, particularly after all the 

delays noted by defendant, but instead a decision to abandon the 

request. (See Kenner, supra, 223 Cal.App.3d at pp. 58-59, 62.)

We conclude that the trial court did not err or abuse its 

discretion, and no constitutional right was violated by the court’s 

appointment of counsel for resentencing.

DISPOSITION

The judgment is affirmed.

___________________________

CHAVEZ, J.

We concur:

_______________________________

ASHMANN-GERST, Acting P. J.

_______________________________

HOFFSTADT, J.