1

Filed 3/13/24 P. v. Franklin CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIS PETER FRANKLIN,

Defendant and Appellant.

 A165893

 (Alameda County Super. Ct.

 No. 18CR013820)

 

Defendant Willis Peter Franklin appeals from a sentence of 62 years to 

life, imposed after a jury found him guilty of multiple sexual offenses against 

three victims, along with several weapons charges. Franklin asserts that his 

constitutional right to counsel of his choice was denied when the trial court 

refused to continue his trial for one day, instead requiring one of his two 

attorneys to appear remotely pending Polymerase chain reaction (PCR) test 

results for COVID 19. Defendant also contends that his Sixth Amendment 

rights were violated because he was not allowed to decide for himself whether 

to testify in his own defense at trial and was not properly advised by the 

court of that right. We affirm.
2

I. FACTS AND PROCEDURAL HISTORY

On August 30, 2021, the Alameda County District Attorney filed the 

operative second amended information in this case, charging Franklin with 

10 felonies: continuous sexual abuse of a child under the age of 14 with 

respect to Jane Doe One (Pen. Code,1 § 288.5, subd. (a), count one); lewd and 

lascivious acts on Jane Doe Two, a child under 14 years of age (§ 288, subd. 

(a), counts two and three); rape of an unconscious person, Jane Doe Three 

(§ 261, subd. (a)(4), count four); forcible oral copulation of Jane Doe Three 

(former § 288a, subd. (c)(2)(A); see now § 287, subd. (c)(2)(A), count five); 

forcible rape of Jane Doe Three (§ 261, subd. (a)(2), count six); sexual battery 

by restraint on Jane Doe Three (§ 243.4, subd. (a), count seven); two counts of 

possession of a firearm by a felon on August 24, 2018 (§ 29800, subd. (a)(1), 

counts eight and nine); and possession of a firearm by a prohibited person 

(§ 30305, subd. (a)(1), count ten). As to counts one through six, 

enhancements were alleged pursuant to section 667.61 (the One Strike law) 

that Franklin was convicted in the present case of qualifying offenses against 

more than one victim. The operative information additionally alleged that 

Franklin had been convicted of bank robbery (18 U.S.C. § 2113) in 1989 and 

received a prison term for that offense. Count seven was later dismissed for 

insufficient evidence. 

A. Trial

The jury trial was held over 17 days in September and October 2021.

Franklin was represented at trial by two attorneys, Brian Ford and Maria 

Belyi. Brian Ford gave the opening statement for the defense on September 2

and 3, 2021 and argued against a prosecution motion during the direct

1 All statutory references are to the Penal Code unless otherwise 

specified.
3

examination of the first witness on September 3. That same day, Belyi 

objected to testimony, argued regarding the admission of certain evidence, 

and later conducted the cross examination of the first witness. Belyi also 

questioned Jane Doe Three during a section 402 hearing. On the next court 

day, September 7, Belyi objected throughout the direct testimony of Jane Doe 

Three and then conducted her cross-examination. On September 8, 2021, 

Ford notified the court early in the morning that he was experiencing 

symptoms consistent with COVID 19. The court informed the jury that Ford 

was ill, and the matter was continued to the next day.

By September 9, 2021, both Franklin and Belyi (the two who sat at the 

same table with Ford) had both tested negative. Ford, who was still feeling 

unwell, tested negative with a home test kit but appeared remotely via a 

video platform as he was still awaiting the results of his PCR test. The trial 

court expressed a general concern about moving the matter along 

expeditiously and additionally opined that, “under the circumstances we find 

ourselves in with the concerns about the pandemic and COVID infections . . . 

the longer this case goes on it’s only going to get more complicated in that 

regard.” The court further noted that it had asked the jury members to send 

it a message if any of them “had concerns about their ability to carry forward” 

given the “developments over the last 24 hours,” and none of them had. The 

court concluded that it felt like “a necessity” to proceed for the remainder of 

that court day (it was already 11:33 a.m.) with Beyli present in court and 

Ford participating in the proceedings on the court’s video platform. It did not 

see any prejudice to Franklin in Belyi continuing her cross-examination of 

Jane Doe Three in an effort to complete the witness examination that day.

Belyi objected to going forward without Ford physically present, 

arguing that they worked as a team and assisted each other in a way that 
4

was not possible over video. She noted that Ford’s face had been frozen 

during a previous hearing and was concerned technical malfunctions might 

prejudice how the defense was viewed by the jury. She also emphasized the 

seriousness of the case and Franklin’s right to have both of his retained 

attorneys present. The trial court responded that it had observed the two 

attorneys working together equally and believed Belyi to be “quite capable” of 

handling matters. While the defense was only asking for a one-day 

continuance, Belyi acknowledged that it was not a certainty Ford would be 

well by the next day or test negative. Belyi also clarified that, when she 

examined a witness, Ford helped her with follow-up questions and by 

filtering notes from Franklin to provide her with those he deemed important.

Ford contributed by citing several cases to the court regarding a defendant’s 

right to retained counsel of choice and argued that the situation could lead 

the jury to view him as disposable.

While it recognized that the situation was not “ideal,” the court could 

not imagine the jury thinking that Ford was dispensable or that Franklin 

could be prejudiced by the situation, given Ford’s prior conduct in court and 

his understandable need to isolate. Indeed, the court believed Ford’s 

willingness to dress in his suit and appear remotely even while ill would 

show the jury how important the case was to Franklin and Ford. The court 

emphasized that Ford would be visible to the jury on the court screen unless 

it was being used to show exhibits and that he would be listening in and able 

to contribute to the proceedings. It stated its willingness to allow Belyi and 

Ford to communicate by phone, text, or in a breakout room at “appropriate 

points.” Ultimately, the trial court denied defense counsel’s request to 

continue the matter to the next day so that Ford could be physically present.
5

The trial day moved forward with Belyi finishing her cross-examination 

of Jane Doe Three, the prosecutor completing his redirect examination, and 

Belyi conducting a re-cross examination. The prosecutor then began his 

direct examination of Jane Doe One. Ford tested negative and returned to 

court the next day.

On October 6, 2021, the jury found Franklin not guilty on count four 

and guilty on all other counts. It found true all special allegations. 

B. Motion for New Trial

In July 2022, Franklin—represented by new counsel—filed a motion for

new trial on grounds that he had not been advised by prior counsel that it

was his personal decision whether or not to testify at trial. The motion 

additionally argued that the trial court had a duty to advise Franklin on the 

record that the decision whether or not to testify was his to make, and the 

court had not done so. According to Franklin, since the identified errors were 

structural, a new trial was required. Attached to the motion were several

declarations. Franklin’s declaration stated that he repeatedly told his

attorneys (Ford and Belyi) that he wanted to testify and that “[his] attorneys

never told [him] that it was [his] right to decide whether or not to testify.” In 

contrast, both Ford and Belyi declared that they had advised Franklin that it 

was ultimately his choice whether or not to take the stand at trial. 

In its opposition to the new trial motion, the prosecution argued that 

California courts have explicitly rejected for decades the notion that 

defendants should or must be advised of their right to testify by the trial 

court. In support of its argument that Franklin agreed with his trial counsel 

not to take the stand, the prosecution submitted a transcript from a jail 

house call between Franklin and his mother discussing a colloquy in court 

regarding whether Franklin would testify. In relevant part, it reflects 
6

Franklin’s understanding of the decision as follows: “[The] judge asked them 

if they had any other witnesses, and they told him, and then, he, you know, 

he argued about that. He said, ‘well, what about your client? Is your client 

goin’ testify?’ And I looked at him, and he was like, ‘don’t you say nothin’ to 

me. Don’t say nothin’. I can’t ask you, and you can’t talk to me.’ And they 

looked at each other, and they said, ‘no, we don’t think he’s gonna’ testify. 

We don’t think’—and then, Maria came over ‘cuz she know what I said about 

that. Same thing Tina said, and she said, ‘Look, I know—she’s 

compassionate. She wants to do this, and your compassionate, and we know 

you want to, but you know, we really just want you to listen to us right now. 

Just listen to us. Let us do this.’ I was like, ‘okay, handle your business. 

Handle your business.’ ” After an unclear response from his mother, 

Franklin opined: “I think they did good—” Defense counsel argued in reply 

that the excerpt actually proved the opposite from what the prosecutor 

maintained—that Franklin thought it was his attorneys’ decision whether or 

not he testified.2

The court held a hearing on the new trial motion on July 25, 2022.

Franklin testified that he was not advised by his attorneys that he could 

“override or veto” the decision made by them regarding whether he would 

take the stand. With respect to the discussion in court regarding whether he 

would testify, Franklin stated: “[The judge] looked back at the two lawyers, 

2 A number of excerpts from jury voir dire were also before the court 

and were equally equivocal. Some comments suggested it was Franklin’s 

personal decision whether to testify—e.g., “[‘]But a defendant’s decision not 

to, if that’s what happens, I don’t know, but if Mr. Franklin chooses not to 

testify, I won’t ask him why.[’]” (Italics omitted.) Others implied it was a 

defense decision—e.g., his lawyers may say “ ‘[t]here’s no reason for you to get 

up there. That may be a determination they make a couple of days from now, 

there’s no reason to testify, not after all that evidence.’ ” (Italics omitted.)
7

Ms. Belyi and [Ford] and they looked back and forth at each other until 

ultimately they decided that I would not testify. That was the first time that 

the decision was made. Up until then Mr. Ford was for my testifying and Ms. 

Belyi was not. But that was the first time the decision was actually made. 

They made it and no one asked me anything else.”

Franklin acknowledged that Belyi walked over and said to him: “I 

know this is what you want to do but just listen to us; we don’t want you to 

testify.” He also recalled Ford telling him at some point: “[S]itting on the 

witness stand a witness can say one thing and blow the whole case. Right

now they haven’t proven their case so we don’t need to do this.” When 

Franklin told his attorneys to handle their business, he meant for them to 

make the decision like they had other decisions with respect to trial tactics.

He did not “think [he] had a choice in it.” He did not recall Belyi ever saying 

that it was his choice.

The court then asked Franklin: “[Belyi] didn’t say anything to the 

effect of we don’t care what you think, this decision has been made by Mr. 

Ford and I. We don’t want to hear what you have to say. It’s none of your 

business. She didn’t say anything like that. She said ‘listen to us.’ Listen to 

our advice on this topic.” Franklin agreed that was what Belyi said. When 

defense counsel objected to the court’s questions, the court replied: “The 

point I’m making is your client’s own testimony is that his lawyer said to him 

‘listen to us.’ That suggests to me his agency in the decision. Not that this 

was pressed upon him, a decision taken from him. His own testimony is 

consistent with their declaration.” 

Belyi testified that she recalled talking with Franklin around five times 

during her representation of him regarding whether or not he would testify at 

trial. She advised Franklin more than once that it was his right to decide 
8

whether or not he would take the stand. Specifically, Belyi believed she said 

“that it’s ultimately up to [him] and that he [could] testify even if we 

disagree[d] with that path.” Belyi also advised Franklin that she did not 

think he should testify, explaining that his testimony would open the door for 

the admission of evidence that would be damaging to his case. From her 

recollection, Franklin ultimately agreed to go along with her advice. Belyi 

did not secure an actual waiver from Franklin of his right to testify. Had 

Franklin insisted on testifying, she would have allowed it. 

Ford testified that he spoke with Franklin more than five times about 

testifying in his case and advised him more than once that it was his decision 

whether or not he testified at trial. He consistently gave Franklin his “very 

strong” opinion that he should not take the stand in his own defense.

However, if Franklin had insisted on testifying, he would have allowed him to 

do so. Ford admitted that he never formally voir dired Franklin about his 

decision whether to testify. 

After argument, the trial court denied the motion for new trial. It 

noted there was no dispute that Franklin was not questioned on the record by 

either counsel or the court regarding his personal right to choose whether to 

testify. But it rejected Franklin’s argument that such a failure, in itself, 

required reversal. The court went on to find both Belyi and Ford credible, 

accepting their testimony “that they did on a number of occasions adequately 

advise Mr. Franklin of his right to testify and that the choice in that matter 

was his.” The court continued: “So in regard to any credibility calls I just 

want to say that that was the Court’s finding and I in essence believe that 

Mr. Franklin’s position really is one of regret that he did not testify as 

opposed to a position where he did not understand that he had the right to 

override his lawyers’ advice on that point.” 
9

Thereafter, at the sentencing hearing on August 8, 2022, the court 

imposed a total term of 62 years to life under the One Strike Law—four

consecutive terms of 15 years to life (counts one, two, five, and six) to run 

consecutively to a two-year determinate term for count eight. Concurrent

terms were imposed with respect to counts three (15 years), nine (two years), 

and 10 (two years). This appeal followed.

II. DISCUSSION

A. Constitutional Right to Counsel of Choice

Franklin asserts on appeal that the judgment must be reversed because 

the trial court denied him his Sixth Amendment right to counsel of his choice. 

He claims that the error was structural, requiring reversal without 

consideration of prejudice or any countervailing factors. Franklin 

misapprehends the scope of the constitutional right he invokes.

1. Legal Framework and Standard of Review

“The Sixth Amendment right to counsel guarantees a criminal

defendant the right to choose his or her own counsel when the defendant does

not need appointed counsel.” (People v. Woodruff (2018) 5 Cal.5th 697, 728,

citing United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 144 (GonzalezLopez).) In Gonzalez-Lopez, the United States Supreme Court rejected the

argument that this Sixth Amendment right to counsel of choice is not

violated unless a defendant has been prejudiced. (Gonzalez-Lopez, at

pp. 144–146.) Thus, “[d]eprivation of the right is ‘complete’ when the 

defendant is erroneously prevented from being represented by the lawyer [he 

or she] wants.” (Id. at p. 148.) The Supreme Court also concluded that 

violation of the right is not subject to review for harmless error. Rather,

“erroneous deprivation of the right to counsel of choice, ‘with consequences 
10

that are necessarily unquantifiable and indeterminate, unquestionably 

qualifies as “structural error.” ’ ” (Id. at p. 150.)

The Gonzalez-Lopez Court, however, was careful to point out that the

Sixth Amendment right to counsel of choice “ ‘is circumscribed in several 

important respects.’ ” (Gonzalez-Lopez, supra, 548 U.S. at p. 144.) As is 

relevant here, the Court “ ‘recognized a trial court’s wide latitude in

balancing the right to counsel of choice against the needs of fairness

[citation], and against the demands of its calendar.’ ” (People v. Lynch (2010)

50 Cal.4th 693, 725, quoting Gonzalez-Lopez, at p. 152; see also Morris v.

Slappy (1983) 461 U.S. 1, 11 [“ ‘Trial judges necessarily require a great deal

of latitude in scheduling trials.’ ”].) Thus, a trial court may “ ‘make

scheduling and other decisions that effectively exclude a defendant’s first

choice of counsel.’ ” (Gonzalez-Lopez, at p. 152.) 

A continuance of a criminal proceeding “shall be granted only upon a

showing of good cause.” (§ 1050, subd. (e).) Granting or denying a motion for

continuance is left to the discretion of the trial court and will be affirmed on

appeal absent a showing of an abuse of discretion. (People v. Mickey (1991)

54 Cal.3d 612, 660.) Reviewing courts look to the “circumstances of each

case, ‘ “particularly in the reasons presented to the trial judge at the time the

request [was] denied.” ’ ” (People v. Courts (1985) 37 Cal.3d 784, 791.) 

2. No Constitutional Violation is Established

Franklin argues that once he was denied his attorney’s physical

presence for a single court day when Ford was required to appear remotely,

the violation of his Sixth Amendment right to counsel of his choice was

complete. Thus, he claims, the judgment must be reversed for structural

error and without any balancing of competing interests. As we have just

stated, however, a trial court may “make scheduling and other decisions that
11

effectively exclude a defendant’s first choice of counsel,” without running

afoul of the Sixth Amendment. (Gonzalez-Lopez, supra, 548 U.S. at p. 152.) 

Here, Franklin’s first choice was understandably to have Ford

physically present for every day of trial. But we do not believe the trial

court’s decision to proceed with trial for one day with only one of Franklin’s

two attorneys physically present and the other present and available

remotely implicates Sixth Amendment concerns. Indeed, the Gonzalez-Lopez

court justified its conclusion that the erroneous deprivation of the right to 

counsel of choice is structural error as follows: “Different attorneys will

pursue different strategies with regard to investigation and discovery,

development of the theory of defense, selection of the jury, presentation of the

witnesses, and style of witness examination and jury argument. And the

choice of attorney will affect whether and on what terms the defendant

cooperates with the prosecution, plea bargains, or decides instead to go to

trial. In light of these myriad aspects of representation, the erroneous denial

of counsel bears directly on the ‘framework within which the trial proceeds,’

. . . [h]armless-error analysis in such a context would be a speculative inquiry

into what might have occurred in an alternate universe.” (Id. at p. 150.) 

Such is obviously not the case here.

Rather, we conclude that the trial court’s decision to proceed with the

trial under the circumstances presented is more properly analyzed for abuse

of discretion as a denial of Franklin’s request for a continuance. It is clear

from the factual recitation set forth above that no abuse occurred here. In

denying the continuance, the trial court heard the concerns of defense

counsel; considered the comfort level of the jury and Jane Doe Three; weighed

the unique concerns presented by the COVID 19 pandemic; received negative

tests from Belyi and Franklin; considered Belyi’s clear competence and the
12

stage of the proceedings; saw no material prejudice to Franklin; and stated 

its willingness to allow Belyi and Ford to communicate during the

proceedings. We see no error, and certainly no abuse of discretion. 

B. Constitutional Right to Decide to Testify in Own Defense

Franklin next contends that his Sixth Amendment right to decide for

himself whether or not to testify was violated in this case because his

attorneys never explained to him that it was his choice to make. In a related 

argument, Franklin asserts that the trial court erred by failing to give him an 

express advisement on the record that the decision whether or not to testify 

was personal and to obtain a valid waiver. On this second point, he argues

existing precedent to the contrary is no longer good law in light of the United 

States Supreme Court’s decision in McCoy v. Louisiana (2018) 584 U.S. 414

(McCoy). We are not persuaded by either claim.

1. Legal Framework and Standard of Review

Both the Fifth Amendment of the United States Constitution and 

Article 1, section 15 of the California Constitution provide that criminal 

defendants cannot be compelled to testify as witnesses against themselves in

criminal proceedings. In a related vein, the United States Supreme Court 

explicitly held in 1987 that criminal defendants also have “a constitutional 

right to testify on [their] own behalf.” (People v. Johnson (1998) 62 

Cal.App.4th 608, 617 (Johnson), citing Rock v. Arkansas (1987) 483 U.S. 44 

(Rock); accord, People v. Bradford (1997) 15 Cal.4th 1229, 1332 (Bradford).) 

“The Supreme Court stated the right to testify ‘is one of the rights that “are 

essential to due process of law in a fair adversary process” ’ [citation] and was 

protected by the Fifth, Sixth, and Fourteenth Amendments of the United 

States Constitution.” (Johnson, at p. 617, quoting Rock, at pp. 51–53.) 
13

Specifically, the Supreme Court explained: “ ‘The opportunity to testify 

is . . . a necessary corollary to the Fifth Amendment’s guarantee against 

compelled testimony’ since the privilege against self-incrimination ‘ “is 

fulfilled only when the accused [are] guaranteed the right ‘to remain silent 

unless [they] choose[] to speak in the unfettered exercise of [their] own will.’

. . . The choice of whether to testify in one’s own defense . . . is an exercise of 

the constitutional privilege.” ’ ” (Johnson, 62 Cal.App.4th at p. 617, quoting

Rock, supra, at pp. 52-53; accord, People v. Duong (2020) 10 Cal.5th 36, 55 [“A 

criminal defendant has the right to testify at trial, ‘a right that is the mirror 

image of the privilege against compelled self-incrimination and accordingly is 

of equal dignity.’ ”].) The Rock Court further found “the right to testify ‘in the 

Compulsory Process Clause of the Sixth Amendment, which grants [] 

defendant[s] the right to call “witnesses in [their] favor” ’ since “ ‘[l]ogically 

included in the accused’s right to call witnesses whose testimony is “material 

and favorable to [their] defense,” [citation] is a right to testify [themselves], 

should [they] decide it is in [their] favor to do so.’ ” (Johnson, at pp. 617–618, 

quoting Rock, at p. 52.) Finally, “ ‘the Fourteenth Amendment’s guarantee 

that no one shall be deprived of liberty without due process of law [which 

includes the] right to be heard and to offer testimony,’ necessarily includes 

the criminal defendant’s right to testify in [his or her] own behalf.” (Johnson, 

at p. 618, quoting Rock, at p. 51.)

The Rock Court further opined that “the Sixth Amendment ‘ “grants to 

the accused personally the right to make [his or her] defense” ’ which includes 

the ‘right to present [their] own version of events in [their] own words.’ ”

(Johnson, supra, 62 Cal.App.4th at p. 618, italics in Rock.) Thus, a defendant 

“may exercise the right to testify over the objection of, and contrary to the 

advice of, defense counsel.” (Bradford, supra, 15 Cal.4th at p. 1332.)
14

However, the right to testify “must be exercised with caution and good 

judgment, and with the advice and under the direction of competent trial 

counsel. It necessarily follows that a trial judge may safely assume that a 

defendant, who is ably represented and who does not testify is merely 

exercising [his or her] Fifth Amendment privilege against self-incrimination 

and is abiding by [defense] counsel’s trial strategy.” (People v. Mosqueda

(1970) 5 Cal.App.3d 540, 545 (Mosqueda); accord, People v. Enraca (2012) 53 

Cal.4th 735, 762–763 (Enraca) [quoting Mosqueda].) 

Thus, our high court has repeatedly held that a trial court is not 

required to “obtain an affirmative waiver on the record whenever a defendant 

fails to testify at trial.” (People v. Acala (1992) 4 Cal.4th 742, 805; accord, 

People v. Bradford (1997) 14 Cal.4th 1005, 1052–1053 [same and 

distinguishing the right to a jury trial because Cal. Const., art. I, § 16 

expressly requires a personal waiver of the jury trial right from the 

defendant]; Bradford, supra, 15 Cal.4th at p. 1332 [trial court has no sua 

sponte duty to inform a defendant of his or her “right to testify, or to obtain 

his personal waiver of that right”]; see also People v. Hayes (1991) 229 

Cal.App.3d 1226, 1232 [“[t]he waiver of the right to testify may be made by 

counsel, and the courts have wisely refused to impose a sua sponte obligation 

on the trial court to extract a personal waiver from the defendant”].) 

In 2012, the Supreme Court reaffirmed these previous decisions, again 

opining that a trial court has no duty to give advice or seek an explicit waiver

regarding a defendant’s right to testify, unless a conflict with counsel comes 

to the court’s attention. (Enraca, supra, 53 Cal.4th at p. 762.) Specifically, 

our high court rejected the argument “that requiring an advisement and 

explicit waiver, even in the absence of a conflict, ‘would not only protect [a] 

defendant’s fundamental constitutional right to testify, but also ease the 
15

burden on the judicial system’ by obviating the need for posttrial evidentiary 

hearings on the question of waiver.” (Ibid.) In doing so, the Court noted: 

“When the record fails to disclose a timely and adequate demand to testify, ‘a 

defendant may not await the outcome of the trial and then seek reversal 

based on [a] claim that despite expressing to counsel [a] desire to testify, [the 

defendant] was deprived of that opportunity.’ ” (Id. at pp. 762–763.)

“On appeal, a trial court’s ruling on a motion for new trial is reviewed 

under a deferential abuse of discretion standard. [Citation.] Its ruling will 

not be disturbed unless defendant establishes ‘a “manifest and unmistakable 

abuse of discretion.” ’ ” (People v. Hoyos (2007) 41 Cal.4th 872, 917, fn. 27

(Hoyos), overruled in part on another ground in People v. Black (2014) 58 

Cal.4th 912, 919–920.) “We accept the trial court’s credibility determinations

and findings on questions of historical fact if supported by substantial

evidence.” (People v. Nesler (1997) 16 Cal.4th 561, 582; accord People v.

Albarran (2007) 149 Cal.App.4th 214, 224, fn. 7.) However, with respect to 

constitutional questions, such as that at issue here, “the asserted abuse of 

discretion is the asserted failure of the trial court to recognize violations of 

defendant’s constitutional rights.” (Hoyos, at p. 917, fn. 27.) In other words, 

our review of the constitutional claim is de novo.

2. No Sixth Amendment Violation is Established

i. Defendant Was Adequately Advised By Counsel

Franklin’s first argument—that he was not adequately advised of his

right to decide for himself whether or not to testify—is easily dismissed. As

stated above, the court found Belyi and Ford credible, and we must accept the

trial court’s credibility determinations. The testimony of Ford and Belyi

supplies substantial evidence that they advised Franklin on multiple

occasions that it was ultimately his choice whether or not to testify in his own
16

defense. Franklin does nothing to refute these core facts. He asserts that the

jail house call supports his testimony that he believed the decision regarding

whether he would testify was the “ ‘business’ of his attorneys” rather than his

own choice. But the call is, at best, ambiguous. And he claims that he only 

went along with Belyi’s “last minute” plea to “ ‘listen to us right now’ ”

because he assumed his attorneys had not prepared to put him on the stand.

Even if this were true, it does not overcome the credible statements of Ford 

and Belyi that they each advised him of his right to testify more than once. 

In short, the record does not show that Franklin’s attorneys failed to advise 

him properly regarding his right to take the stand, and thus the trial court 

did not abuse its discretion in denying Franklin’s new trial motion on that 

basis.

3

ii. Trial Court Had No Duty to Seek an Explicit Waiver 

The second part of Franklin’s argument in this context is that we 

should ignore decades of precedent concluding that a trial court has no duty 

to give advice or seek an explicit waiver regarding a defendant’s right to 

testify based on the United States Supreme Court’s decision in McCoy, supra,

584 U.S. 414. We decline to do so. Even while presenting this argument, 

Franklin concedes that the McCoy case does not specifically deal with a 

3 By failing to demand on the record the right to testify in his own 

defense, Franklin has arguably forfeited the issue. (See Enraca, supra, 53 

Cal.4th at pp. 762–763.) However, since the trial court held a hearing and 

considered the merits of the claim in denying the new trial motion—and 

because we must address the constitutional issue regardless—we address and 

reject the argument on the merits.
17

defendant’s decision to testify. It is just listed as a right reserved “ ‘for the 

client.’ ” 

In brief, the Court explained that the Sixth Amendment guarantees a 

defendant the right to make a defense; it “ ‘speaks of the “assistance” of 

counsel, and an assistant, however expert, is still an assistant.’ ” (McCoy,

supra, 584 U.S. at p. 421.) While some decisions, such as trial management, 

are best left to counsel, “[s]ome decisions . . . are reserved for the client—

notably, whether to plead guilty, waive the right to a jury trial, testify in 

one’s own behalf, and forgo an appeal.” (Id. at p. 422.) 

Although McCoy listed the right to testify in one’s own defense among

those trial decisions that are reserved for the client, it did so only to add 

another right to that list—the right of a defendant to maintain his or her 

innocence at trial. McCoy did not consider whether a trial court must advise 

and/or seek an explicit waiver on the record to preserve said rights. Further, 

nothing in McCoy suggests that all of the listed decisions reserved for a 

defendant in a criminal case—whether to plead guilty, waive the right to a 

jury trial, testify in one’s own behalf, forgo an appeal, and maintain 

innocence—must be treated identically in all respects. For example, as is 

relevant here, a number of courts have rejected the procedural rule Franklin 

argues is required here because the right to testify is so inextricably tied to 

the Fifth Amendment right against self-incrimination. “To require the trial 

court to follow a special procedure, explicitly telling defendant about, and 

securing an explicit waiver of, a privilege to testify (whether administered 

within or outside the jury’s hearing), could inappropriately influence the 

defendant to waive [his or her] constitutional right not to testify, thus 

threatening the exercise of this other, converse, constitutionally explicit, and 

more fragile right.” (Siciliano v. Vose (1st Cir. 1987) 834 F.2d 29, 30 (opn. of 
18

Bryer, J.); accord, United States v. Rodriguez-Arpacio (5th Cir. 2018) 888 F.3d 

189, 193–194; Brown v. Graham (W.D.N.Y. 2011) 2011 U.S. Dist. LEXIS 

87879 at pp. 14–16; see generally State v. Morel-Vargas (Conn. 2022) 273 

A.3d 661, 672–675.) In sum, nothing in McCoy mandates we reject existing 

precedent in this context, and we are therefore bound to follow it. (People v. 

Landry (1996) 49 Cal.App.4th 785, 791.) 

III. DISPOSITION

The judgment is affirmed.
19

LANGHORNE WILSON, J.

WE CONCUR:

HUMES, P. J.

BANKE, J.

A165893