Filed 4/3/14 P. v. Hill CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                          B244577

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. TA123453)
         v.

JASON A. HILL,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Allen Joseph Webster, Jr., Judge. Reversed and remanded.
         David L. Kelly, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E.
Maxwell and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and
Respondent.
                                 INTRODUCTION
      A jury convicted defendant Jason A. Hill of inflicting corporal injury upon a
cohabitant (§ 273.5, subd. (a))1 while using a deadly weapon (§ 12022, subd.
(b)(1).) The court discharged the jury and scheduled a bench trial on defendant’s
prior conviction allegations. Before the bench trial was conducted, defendant
made a Faretta motion.2 The court denied the motion, stating reasons not
recognized by case law. The day of the bench trial, defense counsel informed the
court that defendant had provided her with information that could form the basis of
a new trial motion and requested a continuance to permit her to investigate. The
court denied the request, erroneously stating that defendant could file a new trial
motion after sentencing. The court conducted the bench trial, found that
defendant’s prior conviction had been proven, and sentenced defendant to state
prison.
      In this appeal, defendant raises no claim of error in regard to the trial
resulting in his conviction. Instead, he contends that the trial court erred when it
denied his Faretta motion and defense counsel’s request for a continuance to
investigate a new trial motion. We agree and therefore reverse the judgment and
remand the case to the trial court solely to permit a renewal of those motions.


              FACTUAL AND PROCEDURAL BACKGROUND
      In relevant part, the information alleged that defendant violated section
273.5, subdivision (a) while using a deadly weapon and that he had suffered a prior
felony conviction within the meaning of several enhancement statutes.


1
      All statutory references are to the Penal Code.
2
      Faretta v. California (1975) 422 U.S. 806.


                                            2
      Deputy Public Defender Janet Araujo represented defendant. A jury trial
was conducted in which defendant testified on his own behalf.
      On September 14, the jury returned with its verdict. The jury convicted
defendant and found the deadly weapon enhancement to be true.3 After the trial
court discharged the jury, defendant was advised of and waived his right to a jury
trial on the issue of his prior conviction. The parties agreed that a bench trial
would be conducted on the prior conviction allegations immediately before the
October 5 probation and sentencing hearing.
      On October 5, defendant made a Marsden motion to relieve Araujo. At an
in camera hearing, the following occurred.
      Defendant explained that he “wish[ed] to relieve [Araujo] for ineffective
assistance of counsel and conflict of interest.” Defendant then stated: “I also did
file a pro per packet, sir, and I wish to exercise my Faretta rights at this time in
preparation for my pretrial hearing and pretrial motion.”
      The trial court rejected defendant’s request to relieve Araujo.4 In this
appeal, defendant does not contend that the trial court’s denial of his Marsden
motion was error.
      Turning to defendant’s Faretta request, the court asked: “And you want to
go pro per? You don’t even know the name of the motions [that you believe


3
       Since defendant does not challenge the sufficiency of the evidence to support the
jury’s verdict, there is no need to recite the facts of the crime.
4
         In denying the Marsden motion, the court stated that Araujo had been an attorney
“25, 30 years,” was “experienced, [had] tried a number of cases in [his] court, including
murder cases . . . [and] did an incredible job” in defendant’s case. The court explained
that it was not defense counsel’s “fault” that “the jury didn’t believe” defendant, but,
instead, credited the victim’s testimony. The court concluded: “I think the real conflict
is you [defendant] don’t like female lawyers. I think that’s the problem with this case.
[¶] . . . I don’t see a basis for why she [Araujo] should be removed.”


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defense counsel should have brought]. How could you go pro per?” At the end of
the in camera hearing, the court stated: “You want to go pro per for your appeal,
you can go pro per for your appeal.” “I’m denying [your Faretta motion].
[Araujo] is going to handle the [bench] trial [on the prior conviction], and once the
trial is over, if you want to file a Faretta, you can do it on your own. All right?
It’s going to be denied.”
      Proceedings resumed in open court. In the course of scheduling defendant’s
probation and sentencing hearing, defendant stated:
             “Certain things that have been revealed I’ve discovered since
      the trial, Your Honor, I believe it’s [a section] 1181 [subdivision] 8
      [motion], and those are certain things that I wish to expose to the court
      to allow you to see for basis and grounds for me to file my retrial
      motions, sir. There are certain things that [defense counsel] has
      consistently did that I feel is a conflict of interest. I feel like she’s
      railroaded me, Your Honor, and I do not wish to have her represent
      me.”


      The court replied: “I’ve already made a decision with respect to that, so the
bottom line is you can talk to her or we can decide [the date of your sentencing
hearing].” During the subsequent exchange, defendant reiterated: “I want to
exercise my Faretta rights.” The court responded: “That’s been denied. We are
talking about what day you want for P & S.” Ultimately, the court ordered the
parties to return on October 10.
      On October 10, Araujo told the court that defendant had “provided [her]
with further information that, if it’s investigated, would provide matter for a
motion for a new trial. . . . [¶] . . . The basis, just generally being, new
information that wasn’t readily available at the time of the trial.” Araujo
“request[ed] that the matter be put over for another court date . . . to allow [her] to



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investigate this information.”5 She stated that she had explained to defendant “that
if the court is amenable to [her] request on his behalf, that [she] would ask to have
a video conference with him [the] next week . . . and he would have to provide
[her] with the specific details and information so that [she] could investigate the
information to determine if there is [a basis for] a motion for a new trial.” The
prosecutor made multiple objections to this request and asked that defendant be
sentenced that day.
       The court explained, at length, its (erroneous) belief that defendant would be
able to file a new trial motion after sentencing.6 The court stated that if the new
information referenced by defense counsel “was not known to the defense or not
provided to the defense by [defendant], certainly if that is the case, then that could
5
       Subdivision (8) of section 1181 provides that the trial court may grant a new trial
motion “[w]hen new evidence is discovered material to the defendant, and which he
could not, with reasonable diligence, have discovered and produced at the trial. When a
motion for a new trial is made upon the ground of newly discovered evidence, the
defendant must produce at the hearing, in support thereof, the affidavits of the witnesses
by whom such evidence is expected to be given, and if time is required by the defendant
to procure such affidavits, the court may postpone the hearing of the motion for such
length of time as, under all circumstances of the case, may seem reasonable.”
6
        The court stated: “I’m not aware that the fact that a person is sentenced . . .
precludes anyone from filing a motion for new trial. I mean, seems to the court that’s a
constitutional right one has that you can file for a motion for new trial. . . . [¶] It happens
all of the time [after sentencing], . . . especially in these homicide cases. Happens on a
regular basis. There’s nothing that suggests that a motion for new trial can’t be lodged
after sentencing occurs. Or two, even after – or if there’s going to be an appeal. I don’t
think that there’s anything that legally prohibits someone from filing a motion for new
trial after they’ve been sentenced. I don’t think one has anything to do with the other.
That’s a person’s constitutional right. It must be done timely. I don’t know anything that
says once you are sentenced you lose jurisdiction to file a motion for a new trial. That’s
not my understanding. . . . I think there’s nothing precluding [defendant] or any other
individual from filing a motion for new trial. In fact, it tends to happen more after the
sentencing than before.”
        Defense counsel disagreed with the court’s assessment but could not cite authority
to support her view. The prosecutor’s comments suggested agreement with the trial
court’s incorrect statement of the law.

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be the subject of a motion for new trial” but then concluded that that scenario did
not “preclude[] the court from moving further with the case.” It therefore denied
defense counsel’s request to continue the matter.
      The court proceeded to the bench trial on defendant’s prior conviction.
During that proceeding, defendant reiterated: “I said I wanted to go pro per and
represent myself.” The court explained that it already denied that request several
times. At the end of the bench trial, the court found that defendant’s prior
conviction had been proven. The court immediately sentenced defendant to an 11-
year prison term.
      The court advised defendant of his appellate rights; defendant again sought
“to exercise my Faretta rights”; and the trial court reiterated defendant could do so
on appeal. Defense counsel then stated: “To reiterate that the court pointed out
earlier . . . that a motion for a new trial can be heard even after sentencing. So the
court pointed out to [defendant] that even though he’s going to be sentenced, he
doesn’t lose the ability to file a motion for new trial.” The trial court replied: “All
right.”
      This appeal follows.


                                   DISCUSSION
                        A. DENIAL OF FARETTA MOTION
      Defendant first contends that the trial court erred when it denied his request
to represent himself.
      A criminal defendant has a constitutional right to self-representation if he
voluntarily and intelligently waives his right to counsel. (Faretta v. California,
supra, 422 U.S. at pp. 818-819; People v. Windham (1977) 19 Cal.3d 121, 124
(Windham).) If the request for self-representation is timely, “the defendant’s
‘technical legal knowledge’ is irrelevant to the court’s assessment of the

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defendant’s knowing exercise of the right to defend himself.” (Windham, supra, 19
Cal.3d at p. 128.) But if the “defendant has elected to proceed to trial represented
by counsel and the trial has commenced, it is thereafter within the sound discretion
of the trial court to determine whether such a defendant may dismiss counsel and
proceed pro se.” (Id. at p. 124.)
      Relying upon People v. Miller (2007) 153 Cal.App.4th 1015 (Miller),
defendant contends that his Faretta motion was timely so that the trial court was
required to grant it as long as he voluntarily and intelligently waived the right to
counsel. We are not persuaded that the motion was timely.
      In Miller, the defendant was represented by counsel throughout trial,
including the return of the jury’s verdict and the trial court’s denial of a new trial
motion. (Miller, supra, 153 Cal.App.4th at p. 1019.) Two months before the
sentencing hearing, the defendant stated he wished to represent himself. The trial
court, after balancing multiple factors, rejected the Faretta request. (Id. at p.
1020.)
      The Court of Appeal reversed. It noted that the “timeliness of a Faretta
motion made after a finding of guilt but before sentencing appears to be a question
of first impression.” (Miller, supra, 153 Cal.App.4th at p. 1022.) It concluded that
the defendant’s request “made after the jury returned its verdict and his new trial
motion had been denied, but well before sentencing, was not made during trial for
the simple reason that sentencing occurs posttrial. [Citations.] Sentencing is not
like a bifurcated trial on prior convictions [which is] part of ‘a proceeding which
ha[s] been divided into separate components for [the] defendant’s benefit.’
[Citation.] Instead, sentencing is a proceeding separate and distinct from the trial.”
(Id. at pp. 1023-1024.) Because “the request was timely, [the defendant] had an
absolute right to represent himself at sentencing and the trial court was required to
grant his request for self-representation, which was unequivocal, as long as he was

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mentally competent and the request was made ‘knowingly and intelligently, having
been apprised of the dangers of self-representation.’ [Citation.]” (Id. at p. 1024.)
      Miller is clearly distinguishable. In Miller, when the defendant made his
Faretta request, the trial court had already denied a new trial motion and the only
pending matter was a sentencing hearing set two months in the future. Here, on the
other hand, when defendant made his Faretta request, the court had not yet
conducted a bench trial on defendant’s prior conviction and defendant had
indicated that he intended to file a new trial motion. We therefore find that
defendant’s request, while unequivocal, was made during trial so that the trial
court retained discretion to grant or deny it. This takes us to the next issue: was
the trial court’s denial of defendant’s Faretta request an abuse of discretion?
      Windham sets forth the factors a trial court should consider in ruling upon a
Faretta request made during trial. They include “the quality of counsel’s
representation of the defendant, the defendant’s prior proclivity to substitute
counsel, the reasons for the request, the length and stage of the proceedings, and
the disruption or delay which might reasonably be expected to follow the granting
of such a motion.” (Windham, supra, 19 Cal.3d at p. 128.)
      In this case, the trial court did not discuss any of those factors. Instead, it
relied upon two legally incorrect reasons to deny the motion.
      First, it stated that defendant lacked sufficient legal knowledge to represent
himself. (“You don’t even know the name of the motions. How could you go pro
per?”) But a defendant’s legal knowledge or acumen is not a relevant factor to
consider in ruling upon a Faretta request. (Windham, supra, 19 Cal.3d at p. 128.)
      Second, the trial court told defendant that if he insisted upon representing
himself, he could do so on appeal. But this statement is likewise incorrect. A
criminal defendant has no constitutional right to self-representation on appeal.



                                           8
(Martinez v. Court of Appeal of Cal., Fourth Appellate Dist. (2000) 528 U.S. 152;
People v. Scott (1998) 64 Cal.App.4th 550.)
         To avoid this conclusion, the Attorney General cites to comments the trial
court made when it first denied the Marsden motion to argue that the trial court did
rely upon proper factors when it denied the Faretta request. (See fn. 4, ante.) But
the “trial court’s exercise of discretion in denying an untimely Faretta motion is
properly affirmed if substantial evidence in the record supports the inference that
the [trial] court had those factors in mind when it ruled.” (People v. Bradford
(2010) 187 Cal.App.4th 1345, 1354, italics added.) In this case, the comments the
trial court made when it denied the Faretta motion support the contrary inference.
We therefore find that its denial of the Faretta motion was an abuse of discretion.
(See People v. Knoller (2007) 41 Cal.4th 139, 156 [the trial court abuses its
discretion if its ruling is based on impermissible factors or an incorrect legal
standard].) This error requires a limited remand to permit defendant to renew his
Faretta motion so that the trial court may rule based upon the Windham factors.
(See People v. Miller, supra, 153 Cal.App.4th at pp. 1024-1025.)


               B. DENIAL OF THE REQUEST FOR A CONTINUANCE
                      TO INVESTIGATE A NEW TRIAL MOTION
         Defendant next contends that the trial court abused its discretion in denying
defense counsel’s request for a continuance to prepare a new trial motion. We
agree.
         The trial court possesses broad discretion to grant or deny a request for
continuance. (People v. Sakarias (2000) 22 Cal.4th 596, 646-647.) But a proper
exercise of juridical discretion requires knowledge and consideration of the “legal
principles essential to an informed, intelligent and just decision. [Citation.]”
(People v. Lara (2001) 86 Cal.App.4th 139, 165.)

                                            9
      In this case, the trial court denied the request after it repeatedly stated its
erroneous belief that defendant could file his new trial motion after he had been
sentenced. (See fn. 6, ante.) In other words, the trial court apparently believed
that a continuance was not necessary because defense counsel could investigate the
basis of a new trial motion and file that motion after defendant had been sentenced.
The law is to the contrary. Section 1182 provides that a new trial motion “must be
made and determined before judgment[.]” Thus, “[i]t is axiomatic . . . that a
motion for new trial cannot be entertained or granted after judgment is entered.”
(People v. Hales (1966) 244 Cal.App.2d 507, 511.)
      Defendant urges that the “trial court’s misunderstanding of the law
concerning timeliness of such motions amounts to a de facto refusal to hear such
motion at all, and completely foreclosed [his] opportunity to investigate and
litigate any motion for new trial.” He further argues that the improper denial of the
continuance request “made it impossible for trial counsel to make a record from
which this Court may determine whether or not such [new trial] motion had merit
or lacked merit.” We agree and therefore reject the Attorney General’s arguments
that the trial court could have denied the request based upon reasons it did not
state or that the trial court’s denial of the request was not prejudicial.
      The remedy is to remand the matter to the trial court so that defense counsel
can renew her request for a continuance to permit her to investigate a new trial
motion and the trial court can rule upon the request using the appropriate factors.
(See People v. Braxton (2004) 34 Cal.4th 798, 818-820.)


                                  C. LIMITED REMAND
      As previously noted, this appeal raises no claim of error in regard to the
propriety of defendant’s conviction. Therefore, our reversal of the judgment is
limited to a reversal of the trial court’s finding on the prior conviction and its

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subsequent imposition of sentence. This will permit defendant to renew his
Faretta motion and, if the motion is denied, allow defense counsel to move again
for a continuance to allow her to investigate a new trial motion. If the motion is
granted, defendant will have the opportunity to move for new trial. If the trial
court denies both motions, it is directed to reinstate its finding on the prior
conviction and its imposition of sentence.


                                       DISPOSITION
             The judgment is reversed and the matter is remanded to the trial court
to proceed in accord with the directions set forth in this opinion.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                WILLHITE, J.




             We concur:




             EPSTEIN, P. J.




             MANELLA, J.




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