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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or

or dered 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 Responden t

,

v.

WILL IS PETER FRANKLIN

,

Defendant and Appellant. A 1 6 5893

( Alameda County Super. Ct.

No. 18CR013820 )

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

life

, imposed after a jury f ound him guilty of multiple sex ual 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 p ending Polymerase chain reaction ( PCR ) test

results for COVID 19

. Defendant also c ontends that his Sixth Amendment

rights w ere violated because he was no t allowed to decide for himself whether

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

court of that right

. W e affirm.2 I. FACTS AND PROCEDURAL HISTORY

On August 3 0, 2021 , the Alameda County District Attorney filed the

operative second amended information in this case

, char g ing 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) , count s 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 o n 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), co unt ten)

. As to c ounts 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

T he jury t rial 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

examin ation 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 secti on 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

sym ptoms 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 ad ditionally 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 prejudi ce 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 ot her in a way that4

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. S he also emphasized the

seriousness of th e 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.

W hile 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 u nless

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.” Ultimate ly, 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 coun t 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. Accordin g 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 tha t “[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 i ts 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 Fr anklin 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 reflect s6

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 o ver ‘ 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 th e 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 disc ussion 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 re ason 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 c ourt 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

consis tent 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 dec ide8

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 t estified 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 voi r 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 pe rsonal 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 ad equately

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, a t the sentencing hearing on August 8, 2022

, the cou rt

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

— four

consecutive terms of 1 5 years to life ( c ounts one, two, five, and six ) to run

consecutively to a two

- year determinate term for count eight

. C oncurrent

terms were imposed with respect to count s 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 countervailin g 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. Wood ruff (2018) 5 Cal.5th 697, 728

,

citing United States v. Gonz alez

- Lopez (2006) 548 U.S. 140, 144 ( Gonzalez

Lopez ) .) In Gonzalez

- Lopez

, the U nited States Supreme Court rejected the

argument that th is Sixth Amen d ment right to coun sel 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 consequences10

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 co unsel 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 a n 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 argu es that once he was denied his attorney ’s p hysical

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 that11

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

physical ly presen t 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 F ranklin’s

two attorneys physically present and the other present and available

remotely implicates Sixth Amendment concerns

. Indeed, the Gonzalez

- Lopez

court justified its conclusion t hat the erroneous deprivation of the right to

counsel of choice i s 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 dir ectly 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.

Rat her, 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, t he 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 the12

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

its willingness to allow Belyi and Ford to communicate during the

proceedings. W e see no error, and certainly no abuse of discretion.

B. Constitutional Right to Decide to Testify in Own Defense

Franklin next contend s that his Sixth Amendment right to decide for

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

attorneys never explain ed 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

. O n 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 McC o y v. Lou isiana (2018) 584 U.S. 414

( McCoy )

. We are not persuaded by either claim

.

1. Legal Framework and Standard of Review

Bot h the Fifth Amendment of the U nited States Constitution and

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

defendant s cannot be compelled to testify a s witness es against themselves in

criminal proceedings. In a related vein

, the United States Supreme Court

explicitly held in 1987 that criminal defendant s also h ave “ 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. 4 4

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

“ T he 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, t he Supreme C ourt 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 ; accor d, 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 p p. 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 he r ] own behalf. ” ( Johnson

,

at p. 61 8

, 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 .) Th us, a defendant

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

advice of, defense counsel. ” ( Bradford

, supra

, 1 5 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.3 d 540, 545 ( Mosqueda ); accord, People v. Enraca ( 2012) 53

Cal.4th 735, 762

– 763 ( E n raca ) [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

defenda nt ]; Bradford

, supra

, 1 5 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 decisi on s , again

opining that a trial court has no duty to give a dvice 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 the15

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

hearings on the question of waiver. ” ( Ibid. ) In doing so, t he 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 “manifes t and unmistakable

abuse of discretion.” ’ ” ( Peopl e 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. 2 7.) In ot her words,

our review of the constitutional claim is de novo.

2

. No Sixth Amendment Violation is Established

i

. Defendant W

as A dequately A dvised B y C ounsel

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 own16

defense. Franklin does no thing to refute these core facts. He a ssert s that the

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

whether he would testify was the “ ‘bus i ness ’ o f his attorneys” rather than his

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

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

because he assumed his atto r neys had not prepared to put him on the stand.

E ven 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 it s discretion in denying Franklin’s new trial motion on that

basis

. 3

ii . Trial Court H

ad N o D uty to S eek an E

xplicit W

aiver

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 p p . 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 .)

A lthough 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 d id not consider whether a trial court must advise

and/ or seek an explicit waiver on the record to preserve said righ ts

. 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 Fran klin

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 expli cit 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. ” ( Sici liano v. Vose (1st Cir. 1987) 83 4 F.2d 29, 30 ( opn. of18

Bryer, J. ) ; accord, United States v. Rodriguez

- Arpacio (5th Cir. 20 18 ) 888 F.3d

189, 193

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

87879 at p p

. 1 4

– 1 6 ; 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.4t h 785, 791.)

III. DISPOSITION

The judgment is affirmed.19 LANGHORNE WILSON

, J.

WE CONCUR:

H UMES

, P. J.

B ANKE

, J.

A 165893