People v. Tamrat CA1/2

Filed 12/22/21 P. v. Tamrat CA1/2
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 TWO
THE PEOPLE,
Plaintiff and Respondent,
A159390
v.
HERMON TAMRAT, (Sonoma County
Super. Ct. No. SCR722500)
Defendant and Appellant.
After a run-in with mall security guards over his use of an electrical
outlet to charge a cell phone, defendant Hermon Tamrat was charged with
assault with a knife, making attempted criminal threats, and exhibiting a
deadly weapon, plus various enhancements and a strike prior. At his
preliminary hearing, defendant sought to represent himself, as he apparently
had on previous occasions. The court granted his request and, from the time
of his arraignment after being held to answer at the preliminary hearing
through sentencing, defendant served as his own lawyer. The proceedings
included multiple days of pretrial hearings on discovery, Pitchess1 and other
pretrial motions, a motion to suppress, motions in limine, a hearing on
courtroom security, and belated attempts by defendant to disqualify the trial
1
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
1
judge. When the trial court denied the disqualification motion just as jury
selection was about to begin, defendant announced that he would not take
part in the trial. Defendant thus absented himself from jury selection, and
all trial proceedings thereafter including the taking of evidence (which lasted
about one day). The trial court repeatedly offered to appoint the public
defender, but defendant refused each time. Defendant appeared for posttrial
motions and sentencing.
Defendant contends the trial court abused its discretion in not ordering
a mental health evaluation to assess defendant’s competency to represent
himself when, after representing himself for many months, defendant made
statements in court which, he now argues, constituted “compelling” and
“substantial evidence” that he was affected by an “extreme, disabling mental
illness.” We find no merit to this argument.
Defendant also claims he is entitled to a reduction in his sentence
under newly enacted Penal Code section 1170, subdivision (b)(6)
(§ 1170(b)(6)), which goes into effect January 1, 2022. The Attorney General
agrees the new law applies retroactively to defendant but argues remand is
necessary to allow the trial court to make the appropriate findings under the
new sentencing provision. We agree with the Attorney General and will
remand the matter for resentencing in accordance with section 1170(b)(6).
The judgment is otherwise affirmed.
FACTUAL BACKGROUND
The Underlying Crimes
On December 2, 2018, a security guard at the Coddington Mall in
Santa Rosa saw defendant charging his cell phone in an outlet that was not
designated for that use. When the guard told defendant he couldn’t charge
his phone there, defendant lunged at him with a raised fist and starting
2
cursing at him in a raised voice. The security guard radioed for help, and two
other guards arrived momentarily.
One of the security guards had a body camera, and a video recording of
the incident was eventually shown to the jury. When a second guard walked
up to defendant, defendant said, “Don’t walk up on me. What are you doing?”
He then pulled a pocketknife from his pocket. He “fake[d] a lunge” towards
the guard threatening to “put holes in you.”
A security guard warned defendant he would be pepper sprayed if he
didn’t leave. Defendant started to walk away but then turned to face the
security guards again. A guard pepper sprayed defendant, who then “rushed”
the guard, knife in hand, and tried to stab him in the abdomen.
After 911 was called, Santa Rosa police officers arrived at the scene.
Defendant yelled at the officers, who eventually handcuffed defendant. A
folding knife with a three to three-and-a-quarter-inch blade was found in
defendant’s pants pocket.
The Procedural History of This Case
At his arraignment on December 7, 2018, defendant told the court he
“was falsely imprisoned” and “the police stole $300 from my pocket when I got
arrested.” He said he had been falsely imprisoned multiple times before, but
the cases always got dismissed because they were false. (As will be seen,
defendant’s consistent refrain was that he was always the victim in his
interactions with law enforcement and the system was “rigged” against him.)
On December 20, 2018, defendant made his first Marsden2 motion,
which was denied.
2
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
3
At the preliminary hearing on January 25, 2019, before Judge Peter
Ottenweller, defendant mentioned his interest in self-representation.3
Defendant was held to answer, and he made a second Marsden motion which
was denied. The court told defendant he could let the court know at the next
hearing how he wished to proceed on self-representation.
At the arraignment on February 7, defendant asked to represent
himself, the court gave him a Faretta waiver form to complete, and defendant
filled it out. The court granted defendant’s request to represent himself,
finding he “has the mental capacity to make a lawful waiver of the right to
counsel. He has been advised by the Faretta form of his constitutional and
statutory rights. He understands all of those rights. He has made an
express, explicit, voluntary, willing, knowing and intelligent decision to
represent himself.”
Defendant then requested a court-appointed investigator to assist with
pretrial discovery. Anthony Hopkins was appointed as his investigator.
Over the course of five hearings in February and March, defendant
engaged in detailed discussions with the court and the prosecution about
discovery.
At one of the hearings, the court indicated it was going to review
unredacted video evidence in chambers, and defendant reacted with distrust
and began complaining about his treatment in jail. He stated, “So I’m
supposed to just trust you guys right now like that? . . . [N]o disrespect, . . .
3 Just as the first witness was being sworn, defendant said he wanted
to represent himself. The court gave defendant a written Faretta form.
(Faretta v. California (1975) 422 U.S. 806 (Faretta).) However, after some
discussion between defendant and defense counsel, counsel stated defendant
wanted a continuance to review the evidence. The prosecution objected, and
the court denied a continuance, noting there had been no time waiver.
4
[¶] . . . I’m having a hard time in this jail right now.” Defendant claimed his
“pro per rights” were being violated. The court said it would find out from
the pro per coordinator at the jail whether accommodations were being made
for defendant to prepare for trial and the court would get involved if there
were not. When the court ordered the bailiff to take defendant back to jail,
defendant became hostile toward the court. He accused the court of
“basically working with them [the jail]. I already knew, you piece of shit.
You’re a piece of shit, too. You know that videotape is edited too and
tampered with illegally. Fucking piece of shit.”
The next two hearings on discovery were uneventful. Defendant
answered questions, said he understood answers, and made no outbursts.
On May 1, there was a lengthy pre-trial proceeding at which the court
granted many of defendant’s requests for discovery and discussed with
defendant and his investigator the logistics of viewing video footage in jail
and subpoenaing witnesses.
At another pretrial hearing on June 17, defendant asked for advisory
counsel to help him write, claiming that his writing arm had been injured by
the sheriff. The court denied the request on the ground that this was not an
appropriate basis for advisory counsel. The court reminded defendant he
could reconsider whether he wanted to be represented by a public defender.
At the next hearing on July 24, defendant filed a Pitchess motion which
the court set for hearing. The trial court again asked defendant whether he
would like a public defender appointed to represent him. Defendant was firm
and repeatedly said no. At the close of the hearing before leaving the
courtroom, defendant stated, “Kangaroo court.”
At the next hearing on August 30, the Pitchess motion was taken off
calendar because it had not been properly served. Defendant objected to the
5
court dropping the Pitchess motion from calendar and accused the judge of
bias. Again, he called the court a kangaroo court.
When court reconvened that afternoon, defendant made rude remarks
and said, “You feel good about yourself taking me away from what I had
going on, losing my job, losing my tax money now since I’ve been falsely
imprisoned?” The hearing resumed. The trial court denied defendant’s
further motion for advisory counsel, and defendant then argued at length
against the ruling. The court reminded defendant of his Faretta waiver form.
“I’m going to read to you what you signed in February of 2019. . . . [¶] . . . [I]t
lists your constitutional rights, that you have read and understood them. It
asks in there whether you can read and write English. You marked yes. Do
you have any mental illness or disability that would impair your abilities?
You said no.” The court continued to read the representations made by
defendant on the waiver form,4 and concluded, “So Mr. Tamrat, I’m going to
ask you again, do you wish me to appoint a Public Defender to represent you
in this matter? Yes or no?” Eventually defendant replied in no uncertain
terms that he did not want a public defender.
When the court tried to set the next date for the case, defendant
interjected that he wanted to address the Pitchess motion. The court warned
defendant if he did not “respect [the court] by using the word kangaroo court,
I will then find you in contempt with various sanctions that apply to it.”
Defendant responded that the court had not “been treating me with respect
based on your abuse of discretion just because I represent myself and you
thought I was just a dumb street punk, I already know that, but you see that
4Including that defendant understood the “numerous disadvantages to
representing myself,” such as having to follow the same rules of procedure as
a lawyer and not getting special treatment from the bench.
6
. . . I have some skills.” Defendant and the court engaged in extended
colloquy about the Pitchess issue. Defendant lashed out against the judge
and the prosecutor saying he knew “these little games” they were playing and
made repeated references to a kangaroo court.
At a hearing on September 11, the court asked defendant if he had any
objection to the court reviewing records subpoenaed by defendant for
relevance, outside the parties’ presence. Defendant objected that he did not
trust the court or think it was fair. After that, the court and parties
discussed discovery and trial witnesses at length. Defendant informed the
court that some defense witnesses would testify about his character and
mental health.
On September 16, the court conducted a lengthy evidentiary hearing on
the issue of courtroom security5 in which defendant fully participated; the
transcript ran to about 100 pages.
To support its request that defendant be restrained at trial, the county
presented evidence defendant was dangerous and threatening in jail and his
behavior was disrespectful in court.
Sergeant Michael Patrick from the sheriff’s department testified that
defendant was “classified as an Administrative Segregation, level three, . . .
behavior problem, with an internal behavior code of Z.” Administrative
segregation was for people who “pose[ ] a serious threat to the safety of our
staff, other inmates or our facility, and you do not have major mental health
concerns.” “[B]ehavior problem” refers to inmates who are “acting out
regularly, by showing a disregard for facility rules, for lack of adhering to the
5 The county counsel, on behalf of the sheriff’s department, had
requested an order to place defendant in restraints during trial. Defendant
had filed a motion to appear without restraints.
7
rules within the units and following staff’s directions.” Patrick testified that
code “Z” generally “indicates an inmate is prescribed or is tracked for mental
health medications,” but he was “not privy” to why defendant was so
classified.
Defendant objected that he was “not a mental health issue” and he had
never talked to mental health staff at the jail.
Patrick described defendant’s behavior in jail as “[d]angerous,
threatening and of definite concern regarding the safety and security of our
facility.” In his view, when defendant “receives negative information or
things do not go in the direction he likes, there’s a probability that he would
act out or be verbally aggressive toward staff. How that translates into the
courtroom would definitely be a concern.”
Steven Nelson, a bailiff, testified about defendant’s demeanor in the
courtroom in the preceding months. According to Nelson, defendant usually
“behave[d] himself during court proceedings until . . . towards the end of the
proceedings.” Then “if [defendant] has further things that he wants to talk
[about] and the Judge . . . advise[s] him that he’s done for that session, he
becomes verbally abusive to the Judge, to the staff, and usually that
continues out the door and then down the hallway . . . .” In Nelson’s three-
and-a-half years of working as a courtroom bailiff defendant’s verbal behavior
was the worst he had seen.
Defendant strongly disputed Patrick’s testimony about his jail
behavior. He argued jail staff had “tainted his file with false evidence, false
statements” and had been harassing him since his arrest on December 12
because he wrote grievances and exercised his rights.
On September 17, the judge gave his tentative ruling on the security
issue that defendant’s feet would be secured to a bolt underneath the
8
courtroom desk, but his hands would not be restrained, and he could use a
soft pen at trial. Defendant would not be secured to his chair, nor did the
court agree to the other restraints the deputies had requested.
In what comes across as measured tones even on the written transcript,
the judge reasoned:
“I have been the Judge throughout Mr. Tamrat’s case here in
Department 10. He has appeared in front of me probably 20 times or more.
My observations of Mr. Tamrat, he has never been physically aggressive
while in the courtroom. He has . . . at times . . . been disrespectful in his
language here in the courtroom, but except for comments regarding reporting
myself or the attorneys or the staff to various disciplinary tribunals, he’s
never threatened the Court, nor . . . am I aware that he has threatened any of
my courtroom staff. So, in other words, while I think Mr. Tamrat’s behavior
at times has been disruptive . . . I’ve not found him to be [physically]
aggressive.”
The court further observed, “I also heard that there are times Mr.
Tamrat can behave himself and act accordingly and there are times that
when he is triggered or when he . . . feels that he is being discriminated
against or picked on or treated unfairly, that he acts out in a verbally abusive
manner which also can translate into physically aggressive behavior.”
The same day, the court heard a motion to suppress; defendant cross-
examined an officer at length and made a detailed closing argument, citing
cases.
September 18, 2019, brought another lengthy day of pretrial motions
and rulings. Defendant told the court one of his prospective character
witnesses, Salmon Tedla, would address defendant’s “mental health” and
“traumatic incidents” in his life that resulted in a PTSD diagnosis.
9
Defendant also noted his proposed exhibit of the definition of PTSD, which he
intended to use to argue to the jury that he “went into defensive mode” at the
mall because “when they performed the tactical maneuver around [him],” he
was “triggered” to act “in defense.”
After establishing that Tedla was not a doctor, the court explained to
defendant that Tedla’s proffered testimony about PTSD was not proper for a
layperson. Defendant responded that Tedla would only testify about “these
incidents” that defendant went through and that none of his witnesses would
act as doctors or “mention anything with PTSD.”
The court took a recess and addressed motions in limine. Defendant
worked his way through the motions, showing his familiarity with the
process.
Defendant’s consistent theme was that he had been subject to a biased
investigation and false statements; he said he filed a citizen complaint
against the officers in his case for excessive force,6 and he was “truly the
victim” in the incident. He also believed money had been stolen from him at
booking.
The trial court showed exceptional patience with defendant. The court
explained to defendant that he could testify to previous fighting or threat
incidents to explain his behavior, but he could not self-diagnose PTSD.
After additional argument about whether defendant’s written definition
of PTSD was admissible as an exhibit, defendant claimed the judge was
“basically railroading me,” and that “[y]ou guys got to cheat me to beat me.”
The court explained that PTSD was a matter for expert opinion, that without
6 The court said the citizen complaint was inadmissible because
defendant had not been charged with resisting arrest or battery on a peace
officer.
10
an expert, the definition proffered by defendant was hearsay and irrelevant,
and that the court had authorized funds for defendant to retain an expert,
but he had not done so. Defendant repeated the refrain that he was being
cheated and railroaded.
Defendant objected on the grounds of relevance to the pocketknife
recovered from the incident at the mall being displayed during trial. After
the court overruled the objection, defendant addressed the court, “Also, I
would like to let the record reflect that I will not get a fair jury panel. I will
be prejudiced due to the fact that I’ve been subject [to] harassment from the
FBI and other law enforcement agencies. It’s a well-known fact. You don’t
have to play this little game. Everybody knows what going on. So I would
never be able to get a fair trial based on that fact. And I could bring
witnesses in on what I’m saying right now.” Defendant said he would like a
change of venue.
Defendant then made the statement he now relies on as evidence of
severe mental illness. Complaining about harassment by the FBI, defendant
said: “It’s viral, you know, a lot of people are involved in this, relatives
know[ ] that. The FBI implanted something in me illegally, messed with me
in my head and my body and continue to do it in this jail as well, in the cell.
[¶] It’s a bunch of things. It’s too—you wouldn’t even be found to understand.
I would have to sit you down. It’s not no conspiracy. I have witnesses,
relatives that witness some phenomenal experience with their eyes.”
Defendant continued: “They know that I am subject to harassment
. . . . And a lot of people know about me. What it is, I don’t know, but it’s a lot
of things being said about me. I walk down the street and . . . it’s hard to
explain, but trust me it’s—everybody knows me for some reason. This is not
no crazy talk or nothing. Like I said, I could bring witnesses which are
11
relatives and other people in this regards. I will not be subject to a fair trial.
I will be prejudiced automatically due to that fact and everybody is well
aware so . . . . [¶] You know what I’m talking about, he does, he does, the
Sheriff does, the stenographer, everybody knows what’s going on. [¶] So, you
know, I would not be subject to a fair trial and I’m letting that be known, and
I could bring witnesses, but if you deny me that, then, hey, oh well, it’s more
of appeal. That’s about . . . the 10th reason I could appeal this case if I get
falsely convicted. Because I got a bunch of appeal reasons . . . with you and
this courtroom, this kangaroo court. So I’m not worried about it, plus I got
my Habeas Corpus, but I will submit that. I will not get a fair trial.”
The prosecutor then brought to the court’s attention an email he
received from defendant’s investigator Hopkins—an interview summary of
proposed defense witness Tedla, who was defendant’s uncle—which the
prosecutor suggested was relevant given defendant’s comments “regarding
the FBI and his mental state.” According to Hopkins’s summary, Tedla
believed defendant was “highly anti-social, has no friends or social life, was
extremely paranoid, believed federal agents were monitoring him and
surveilling him, [and] believed his uncle [Tedla] was conspiring with federal
agents against him.”7
7 At this point, defendant stated he had been harassed for years and, “I
would not get a fair trial based on the jury panel because everybody knows,
this is viral . . . . All that . . . dumb stuff going on. . . . Everywhere I go on the
street, somebody—when they walk right by me. . . . [¶] And my relatives
know . . . I’m being targeted. They know what’s going on. They’re doing a
bunch of illegal stuff, the FBI and other authority, law enforcement,
government authority, they’re doing some illegal stuff, and I’m subject to a lot
of harassment for a lot of years . . . .” Defendant correctly referenced the trial
court’s earlier ruling that Tedla could not testify to the diagnosis of PTSD
since he was not an expert.
12
The prosecutor observed that defendant’s “statements to the Court . . .
seem to devolve into some rather paranoid expressions” and reminded the
court of its “authority under Evidence Code 730,” suggesting “perhaps you
have Dr. Correa take a quick look . . . .”8
The trial court did not think defendant required a mental health
evaluation, explaining: “The Court at this point does not believe a further
evaluation by Dr. Correa would be in order. . . . [W]e have spent almost three
full days with Mr. Tamrat discussing somewhat sophisticated legal issues.
Mr. Tamrat seems to be following along. While he has in his remarks to the
Court again continues to be disrespectful in not only the Court but
announcing how the proceedings are rigged against him, which does show
some paranoia, this can also be from Mr. Tamrat’s own personal experiences
that he is relating to. [¶] So I don’t believe that his comments here about a
chip in his body from the FBI and those kind of things will interfere with his
ability to understand the nature of the charges and to represent himself in
this matter.”
After a break, the trial court moved on to more pretrial motions and
matters. The court spent a considerable amount of time going over the jury
selection process, including the kinds of questions that could be asked in voir
dire. Defendant told the court he “kn[e]w the questions to ask,” but felt the
8 Evidence Code section 730 provides the court authority to appoint an
expert to investigate and testify “as an expert at the trial of the action
relative to the fact or matter as to which the expert evidence is or may be
required.” The parties do not identify who Dr. Correa is and have not pointed
us to anywhere in the record where he is mentioned. Nor have they pointed
us to anywhere in the record that indicates that the court, the prosecutor, or
the defense counsel (before defendant began representing himself) ever
expressed a doubt about defendant’s competence to stand trial under Penal
Code section 1368.
13
process was rigged against him. “It’s me versus this courtroom. . . . [Y]ou’re
against me, and . . . that’s facts.” The court turned to peremptory challenges
and how they are exercised, as well as how a challenge to the panel could be
made. Defendant repeatedly indicated he understood what the court was
saying.
Then defendant stated he wanted to exercise his “peremptory challenge
in recusing you as a judge because every defendant has one challenge as far
as that.” The trial court denied the challenge as untimely.
The court moved to jury instructions; later, defendant brought up an
issue of discovery noncompliance. Just before the close of proceedings for the
day, the trial court addressed defendant, “I’m going to give you another
opportunity to consider having the Public Defender reappointed to represent
you on this case. Do you wish to have me reappoint the Public Defender to
represent you on this case?” Defendant identified by name one attorney from
the Public Defender’s Office he would accept. When the court said it didn’t
determine who would be assigned to the case, defendant said, “Yeah, if it
ain’t her—I probably think about it. Other than that, I’m cool. I don’t want
to.” And he added, “If it’s not her, that’s about it.”
At the next hearing on September 20, defendant filed a statement of
disqualification against Judge Ottenweller.
On September 23, the court stated it was striking the statement of
disqualification and handed out copies of its written order. Defendant read
the order and then he engaged in colloquy with the judge about the case
authority cited by the court, disputing its relevance, and arguing that his
motion had been made “at the earliest practicable time” as required by the
law. Defendant elaborated on his reasons: “It came . . . to my thinking that
on . . . September 18, 2019, is when I determined you are very bias[ed]
14
against me, not only that, but have also committed prejudice against me,
have been prejudiced against me by your actions . . . .” His reasons were
based on trial court rulings on the admissibility of evidence pertaining to
defendant’s alleged trauma.
Defendant argued several grounds of prejudice, all related to the court’s
rulings on various pretrial motions. He said the court tried to force him to
“relinquish my pro per status.” Again, defendant cited case law, at length,
concluding that his motion for disqualification was “timely” and that the
court was not proceeding “in the right way,” and the court’s actions “fall[ ]
under the norms of misconduct.” When the court asked whether defendant
had “anything else . . . on the disqualification issue,” defendant declared he
was refusing to participate.9
The court returned to the logistics for the next day’s trial proceedings.
The court stated that it was prepared to bring in the jury panel, and
defendant interjected that he “refused to participate.”
The court announced that they were waiting for the jury panel to come
into the courtroom to be sworn, and that 18 would be called to the jury box.
Defendant persisted, “I refuse to participate in this illegal proceeding[ ];” he
was exercising his “one and only peremptory challenge;” and the judge was
“excused.” Defendant stated that the judge had not finished hearing in
limine motions, and it was improper to move on to selecting the jury. “I
refuse this proceeding. I would like to go back.” Despite repeated requests
from the bailiff, defendant stood up and would not sit down. “I refuse to
9 He stated, “I refuse to take part in this. Since this is illegal and this
is unlawful, I refuse to take part in any of this proceeding today or until we
go about it the right way, until the Judge goes about this the right way as far
as the disqualification motion I filed.” [¶] So I refuse—I will remain silent . . .
I refuse to participate.”
15
participate in this illegal proceeding by law— . . . [¶] I’m entitled to that.”
Defendant also asked for transcripts of prior hearings to file a writ, listing all
of the hearing dates.
The court ruled the peremptory challenge under Penal Code section
170.6 filed that day was denied as untimely, as was the challenge defendant
had filed a few days earlier. The court told defendant it was to his benefit to
stay in the courtroom while the jury was selected. Defendant interjected
again “I refuse,” and the court said: “If you insist on being removed for your
jury trial, I’m prepared to go ahead and continue picking a jury in your
absence.”
Defendant reiterated his refusal to participate and insulted the court.10
Unfazed, the court responded, “So, Mr. Tamrat, do you want to sit here
while we pick a jury?” Defendant responded in the same vein. The court
continued, “I heard you twice before that. . . . [¶] And you’re trying whatever
you need to do to get some reaction from me so you can challenge me in the
case. [¶] So the question is are you prepared to sit down here while we pick a
jury?”
Defendant said, “By law, I have that right to refuse to participate.
[¶] And I asked—let the record reflect that I asked to have more time as far
as this is judgment—this is cause right here to waive this jury panel
selection. . . . [¶] That’s how I feel about your courtroom. I spit on the floor.”
The trial court sought to clarify whether defendant was seeking a
continuance and waiving his right to a speedy trial; the court indicated jury
He said, “I will not come back to court again. . . . [¶] You can go on
10
with this illegal proceeding, you piece of shit. Go ahead. I’m not worried
about it. That’s what you are. You are a white devil with this little cracker
system. You’re nothing but a white devil that abuses authority. You’re a
piece of shit. And you know that.”
16
selection would begin if not. Defendant did not respond directly but stated, “I
choose to exercise my right to not participate in—I do not want to be in this
illegal—this corrupt courtroom. [¶] So you may go ahead and cuff me up and
get me out of here.” The bailiff and defendant’s investigator urged defendant
to stay seated. Defendant responded, “I refuse to participate in this illegal
corrupt courtroom.”
The judge responded, “All right. Then let’s bring our jury panel in if we
could[,] so we can start up the jury selection process.” Without prompting,
defendant said, he wanted to be taken "back to my cell.”
Th trial court cautioned that he thought this “is not a good idea on your
part. I think the jury would want to see you and actually hear from you in
this case.” And again the court asked, “do you want to sit here and be part of
these proceedings or do you want to be taken back up to your cell.”
Defendant said, “I refuse to take part and I will be filing a habeas
corpus because you’re holding me hostage at this point. And I’m definitely
filing that misconduct to the judicial commission of San Francisco.” He
reiterated his request for transcripts of all of the proceedings.
After defendant left the courtroom, with the prosecutor, defense
investigator and court staff present, the trial court made “some observations
. . . so the record is more clear in this case.” The judge said: “While Mr.
Tamrat was being asked by me whether or not he would participate in this
trial, he got up out of his chair. The bailiffs asked him to get back into his
chair. He did not physically resist, but did not get back in his chair.
“He then sat down in his chair, I think primarily at the urging of Mr.
Hopkins [investigator], and started formulating spit in his mouth where my
bailiff pulled out a spit guard in case he was going to spit. He then, I believe,
dribbled some spit onto the ground from his chair.
17
“There was further discussion. He then got up again. The bailiffs
again ordered him back in his chair. Again, I believe he got back in his chair
because Mr. Hopkins encouraged him to do so and he got back in his chair.”
As to defendant’s self-representation, the prosecutor commended the
court for “zealously safeguard[ing defendant’s] right to represent himself,”
but believed there was good cause for a continuance (presumably to appoint
counsel) because defendant was “completely unable to abide by rules of
procedure and courtroom protocol . . . .”
Following a recess, defendant was back in the courtroom, along with
his investigator and the prosecutor, and the court noted defendant agreed to
be there. The court made clear the trial would go forward whether defendant
was present or not and explained the mechanics of how it would proceed in
his absence, concluding “I just want you to be aware without you being here,
all of those things are going to happen. [¶] So do you wish to be removed
from the courtroom and back to your cell?” Defendant said “[y]es, I do,” and
engaged in more name calling against the judge, stating he was being “held
hostage” by the judge.
The prosecutor suggested the court could deny a request for self-
representation “when the defendant is unable or unwilling to . . . abide by
rules of procedure and courtroom protocol,” citing a treatise. He observed the
record was “replete with disorderly, disruptive and disrespectful behavior
evidencing an inability or unwillingness to abide by rules of procedure and
courtroom protocol” and, further, even if a defendant is competent to stand
trial, he “may not be competent to conduct the trial proceedings by himself
and may be denied the right of self-representation.”
Defendant objected to the prosecutor’s statements and chastised the
court as “corrupt, tainted, you perform misconduct.” At that point the trial
18
court addressed the bailiff and asked that defendant be taken back to his cell.
Before he left the courtroom, defendant once again told the court that it was
breaking the rules and called him a “wannabe” judge.
The prosecutor then stated that the “prudent course of conduct at this
point is that [Mr. Tamrat] be denied his right to continue with self-
representation, that we have a Public Defender appointed, and we go through
that process, whatever that process looks like, whether it involves an
eventual Marsden motion, whether it involves ultimately him representing
himself. [¶] We’re not going to continue to invite jurors down to the
courthouse and go through this rigamarole indefinitely, but the more robust
record that we have built, the safer we are going to be if and when reviewed
by an appellate Court.”
The court disagreed with the prosecutor’s suggestion that defendant
was not competent to represent himself. The court explained its “view of the
case after researching this issue” as follows. “We have started this trial. We
started the trial with in limine motions on September 16th and we went
through three full days of in limine motions with Mr. Tamrat as well as [his
investigator] being present. . . . [¶] Mr. Tamrat during that period of time
exhibited to me an understanding, a rudimentary understanding, of the law.
He filed in limine motions, he argued in limine motions, and in this Court’s
opinion had done research while in custody, had written up his own motions,
he had written up a motion to suppress and participated in the motion to
suppress which was during our in limine motions in which a witness was on
the stand and which he questioned the witness I believe in a substantive
way. [¶] So therefore, I do believe that he is competent to—still competent to
represent himself.
19
“It was not until he came close on the day of trial, which was the trial
call on Friday, the 20th, that he filed his disqualification declaration, and
then on the actual day to select a jury when the Court issued its order
striking the disqualification, Mr. Tamrat continued on with a theme that he
has utilized since February in this case when he went in pro per, February
2019, that the trial was bias[ed], the participants in the trial were bias[ed]
against him, and this has been a continuing theme with him.
“He has expressed that the jail personnel are bias[ed] against him,
have violated his rights. He has expressed numerous times that this Court
has violated his rights and that he could not get a fair trial. He has
continually, I believe, had the philosophy that because of who he is, he could
not get a fair trial in any courtroom no matter where it was.
“So with that, I’m bringing that up because this is not new or aberrant
behavior on his part. This is consistent throughout, and when I bring up that
it’s been consistent throughout, it is however you want to term it on his part
a consistent philosophy that he has brought to these proceedings.
“So he has totally requested that he represent himself. The Court has
explored with him the danger of doing so a number of times. He has refused
the Court’s invitation to have counsel appointed for him. When counsel was
appointed for him, we had a Marsden motion for him to remove that counsel,
and when that was not granted, he then went in pro per.
“So with that said, I believe he knows what he’s doing. I believe his
conduct is calculated here to what he’s doing and is consistent with his belief
that he cannot get a fair trial even if he participated in any way, shape or
form in this case.”
The court concluded that “[defendant] has voluntarily absented himself
from these proceedings. I believe if I were to go down the road that [the
20
prosecutor] is suggesting in the case, that we would be here a year from now
in the same situation, and just as [the prosecutor] said, where we might be,
who knows, with a jury being out in the hallway and with that uncertainty.
[¶] [Defendant] is not going to run my courtroom, and so I’m going to run my
courtroom and we are going to start up with jury selection.”
The prosecutor noted that the court had given defendant “repeated
opportunities to simply ask the Court for more time and he has failed to do
that” and then submitted on the court’s ruling
The next morning, when the court called the matter for jury trial and
defendant was not present, the court (outside the jury’s presence) asked for a
report on defendant’s status. The bailiff told him that defendant had gotten
dressed in his civil clothes but then told jail staff he did not want to be in
court today and would be there tomorrow. The court stated that “the Court
made an order that Mr. Tamrat be dressed out and be ready to come into
Court this morning at 10:30 a.m. Again, Mr. Tamrat has decided to absent
himself from these proceedings, and the Court is prepared to go forward with
the proceedings in his absence.”
The next court day, defendant did appear. Outside the presence of the
jury, the court asked him if he intended to present a case (the prosecution
having finished its case) and whether defendant would stipulate that two
documents could be admitted in evidence. Defendant responded by objecting
“to everything going on in this kangaroo court with this trial” and
maintaining that the proceedings were unlawful “since I filed my . . .
disqualification motion.” The court checked whether defendant was going to
give an opening statement or present witnesses, and defendant again
objected to “this illegal and unlawful proceeding taking place which is this
trial.” Defendant then asked to file a motion to dismiss for vindictive
21
prosecution and “head back to my cell,” objecting to “being here in this
kangaroo courtroom.” He said, “you got to cheat me to beat me” as he left the
courtroom.
On December 19, defendant was present in the courtroom for post-trial
proceedings. The case had been continued to that day for defendant to
prepare a motion for new trial, but on December 19 he stated he wanted a
ruling on his Penal Code section 1385 motion to dismiss. Defendant stated
that he already knew the court would deny the motion because “you’re
corrupt” and “not an honorable judge,” and it had been a “kangaroo
courtroom” since “the start.” The court put the matter over for ruling and
possible sentencing later that afternoon. Defendant stated, “you’re white
devils” and, “you cost me a lot of losses,” accusing the court and the
prosecutor of “working together to falsely imprison me, man, but it’s gonna
cost you, I guarantee that. It cost me my job, my tax return money. It cost
me a bunch of losses.” Defendant would not come to court at 1:30 p.m., so the
court continued the matter.
On December 27, defendant was in court for sentencing. First the court
heard lengthy argument from both sides on the Penal Code section 1385
motion. The court explained its reasoning and denied the motion, which
again resulted in defendant calling the court names. The trial judge stated,
“The Court does believe Mr. Tamrat has explained at various times . . . that
he suffers from posttraumatic stress disorder as a result of either his
upbringing or his time in custody, and the Court does acknowledge that . . .
and would give credibility to that aspect of Mr. Tamrat’s behavior, or it’s a
reason for his behavior and personality. And so the Court did consider that
aspect of Mr. Tamrat’s background and experience, but that was not
sufficient to overcome the serious nature of this case and the strike.”
22
Defendant continued to argue against the ruling and the prosecutor’s view on
sentencing. The trial court repeatedly asked defendant for his view on his
sentence, and he said “For me being falsely imprisoned and you . . . trying to
protect other white people, your fellow white men, for committing a battery
on me . . . on video camera . . . [¶] that they manipulated, edited and
tampered with on top of that?” Defendant went on, “The appropriate
sentence? So this is like comedy for you . . . .” Defendant said that the court
should dismiss all charges because he was “falsely imprisoned.”
When the court stated, “Mr. Tamrat, nothing further,” defendant
replied with more epithets.
The court asked the bailiff to remove defendant from the courtroom, as
defendant continued to utter expletives and rude remarks. Defendant’s spit
hit the court reporter, but not the court.
The court then completed pronouncement of the sentence, without
defendant present. As to factors in mitigation, the court stated, “I do believe
that Mr. Tamrat suffers not from a psychiatric condition but from some other
condition in which he feels validly to him. The Court doesn’t find this in
either the prosecution in this case or otherwise, but Mr. Tamrat genuinely
feels that he is victimized both because of his race and his socioeconomic
status. In this matter he did not use . . . an attorney in the case, which I
believe severely prejudiced his matter from not only the trial in the case” but
also in posttrial motions to place him in a better position for sentencing. The
court stated “for that reason,” it sentenced him to the mid-term on count 1,
imposed the remaining sentences concurrently, and exercised its discretion to
strike defendant’s five-year prior serious felony conviction under Penal Code
section 667, subdivision (a). While the prior strike was for a violent offense,
“the underlying case here, again, was Mr. Tamrat, I believe, acting out after
23
being confronted and aggravating the situation again because, I believe, he
feels victimized because of his race and socioeconomic status.”
DISCUSSION
A.
Defendant does not contend he was incompetent to stand trial. He does
not contest that his Faretta waiver was voluntary, knowing and intelligent.
He does not claim there was error in his absence from the trial.11 He does not
allege any errors in the conduct of the trial or his sentence. Defendant raises
one narrow claim: the trial court “abused its discretion in failing to order an
evaluation or a hearing to assess [defendant’s] competence to represent
himself.”
The Sixth Amendment right to a defense necessarily includes the “right
to self-representation.” (Faretta, supra, 422 U.S. at p. 819.) “In Indiana v.
Edwards (2008) 554 U.S. 164 (Edwards), however, the United States
Supreme Court held that states may, but need not, deny self-representation
to defendants who, although competent to stand trial, lack the mental health
or capacity to represent themselves at trial—persons the court referred to as
‘gray-area defendants.’ ” (People v. Johnson (2012) 53 Cal.4th 519, 523
(Johnson).) “Edwards described competence to represent oneself at trial as
11By statute, a defendant can waive his right to be present at trial in a
non-capital felony case where he voluntarily absents himself from trial. (Pen.
Code, § 1043, subd. (b)(2).) Moreover, although it did not happen here,
defendant could have been removed from the trial if, “after he has been
warned by the judge that he will be removed if he continues his disruptive
behavior, [he] nevertheless insists on conducting himself in a manner so
disorderly, disruptive, and disrespectful of the court that the trial cannot be
carried on with him in the courtroom.” (Pen. Code, § 1043, subd. (b)(1); see
People v. Espinoza (2016) 1 Cal.5th 61 [trial court did not abuse its discretion
in proceeding with trial when self-represented defendant voluntarily
absented himself from trial].)
24
the ability ‘to carry out the basic tasks needed to present [one’s] own defense
without the help of counsel.’ [Citation.] It . . . said the states may deny self-
representation to those competent to stand trial but who ‘suffer from severe
mental illness to the point where they are not competent to conduct trial
proceedings by themselves.’ [Citation.] Although asked to ‘adopt a more
specific standard,’ the high court declined to do so.” (Johnson, supra, 53
Cal.4th at p. 530, italics added.)
The California Supreme Court in Johnson also explicitly declined to
adopt a more specific standard. “[W]e believe the standard that trial courts
. . . should apply is simply whether the defendant suffers from a severe
mental illness to the point where he or she cannot carry out the basic tasks
needed to present the defense without the help of counsel.” (Johnson, supra,53 Cal.4th at p. 530.)12
The Johnson court then discussed how this would work in practice. “A
trial court need not routinely inquire into the mental competence of a
defendant seeking self-representation. It needs to do so only if it is
considering denying self-representation due to doubts about the defendant’s
mental competence. When a court doubts a defendant’s competence to stand
trial, it ‘shall appoint a psychiatrist or licensed psychologist, and any other
expert the court may deem appropriate, to examine the defendant.’ (Pen.
Code, § 1369, subd. (a).) Similarly, when it doubts the defendant’s mental
competence for self-representation, it may order a psychological or psychiatric
examination to inquire into that question. To minimize the risk of improperly
12 The issue in Johnson was “may California courts deny self-
representation when Edwards permits such denial?” And if so, whether the
trial court in Johnson had properly denied self-representation in that case.
(Johnson, supra, 53 Cal.4th at p. 525.) The Johnson court answered both
questions in the affirmative.
25
denying self-representation to a competent defendant, ‘trial courts should be
cautious about making an incompetence finding without benefit of an expert
evaluation, though the judge’s own observations of the defendant’s in-court
behavior will also provide key support for an incompetence finding and
should be expressly placed on the record.’ ” (Johnson, supra, 53 Cal.4th at
pp. 530-531, italics added.)
The Johnson court admonished that “[t]rial courts must apply this
standard cautiously. . . . Criminal defendants still generally have a Sixth
Amendment right to represent themselves. Self-representation by
defendants who wish it and validly waive counsel remains the norm and
many not be denied lightly. A court may not deny self-representation merely
because it believes the matter could be tried more efficiently, or even more
fairly, with attorney on both sides. Rather, it may deny self-representation
only in those situations where Edwards permits it.” (Johnson, supra, 53
Cal.4th at p. 531, italics added.)
We review a court’s determination on self-representation with a large
degree of deference. “As with other determinations regarding self-
representation, we must defer largely to the trial court’s discretion.
[Citations.] The trial court’s determination regarding a defendant’s
competence must be upheld if supported by substantial evidence. [Citation.]
Such deference is especially appropriate when, as here, the same judge has
observed the defendant on numerous occasions. ‘[T]he trial judge . . . will
often prove best able to make more fine-tuned mental capacity decisions,
tailored to the individualized circumstances of a particular defendant.’
(Edwards, supra, 554 U.S. at p. 177.)” (Johnson, supra, 53 Cal.4th at pp.
531-532.)
26
The parties do not dispute that Johnson governs the standard for when
a defendant who is competent to stand trial may nonetheless be precluded
from self-representation, nor do they dispute that we review the trial court’s
decision for abuse of discretion. Where they disagree is that defendant
asserts the trial court had a continuing obligation to monitor him for
competence to represent himself, while the Attorney General argues trial
courts do not have such a duty. We need not resolve this dispute because,
even assuming the trial court had a continuing duty to assess defendant’s
competence for self-representation, we find no abuse of discretion on the
evidence presented here.13
Under the Johnson test, we ask whether the trial court abused its
discretion in concluding that it did not have before it a defendant who
suffered “from a severe mental illness to the point where he [could not] carry
out the basic tasks needed to present the defense without the help of
counsel.” (Johnson, supra, 53 Cal.4th at p. 530.) We conclude it did not.
At the outset of his self-representation, defendant completed a written
Faretta waiver indicating that he did “not have any mental illness or
disability or have taken any drugs, medicine or alcohol that would impair
[his] abilities.”14 At the September 16 hearing on courtroom security,
13 In his opening brief, defendant contended that a trial court has a
continuing obligation even after a Faretta motion is granted to monitor a
defendant’s competence to represent himself, and must order a mental health
exam “ ‘if the evidence of mental incapacity is “compelling.” ’ ” But as the
Attorney General points out, the sole authority for this proposition was a
citation to a concurring opinion in People v. Powell (1986) 180 Cal.App.3d
469, 484, a case that long predates Johnson and Edwards. Defendant does
not dispute in his reply brief that he cited to a concurring opinion, nor does
he defend the point further.
14In a footnote, defendant suggests there was something questionable
about this statement, since given the way the form was worded, defendant
27
Sergeant Patrick, who testified as a jail classification expert, explained that
defendant’s classification meant “you do not have major mental health
concerns.”15
From February through to the trial in September, as we have detailed
above, defendant litigated his case. He made and argued motions covering
the panoply of his rights as a criminal defendant, including among others a
Penal Code section 995 motion, discovery motions, a Pitchess motion, and a
motion to suppress. He requested, obtained, and worked with, a court-
appointed investigator. He subpoenaed witnesses. He cross-examined
witnesses at evidentiary hearings. When the judge explained court
procedures and his rights, such as jury selection and use of prior testimony
for impeachment, he evidenced understanding, made connections to earlier
court proceedings, and said he understood.
Defendant demonstrated persistence and legal knowledge. He argued
points, cited authority, and won some motions. The trial court described the
in limine motions as addressing “somewhat sophisticated legal issues.”
Indeed, defendant acknowledges in his brief before us that defendant was
“diligent in his written advocacy, filing a multitude of pleadings.”
checked “no” in response to the statement, “I do not have any mental illness
or disability or have taken any drugs, medicine, or alcohol that would impair
my abilities.” The trial court interpreted the response as meaning he did not
have a mental illness. But this argument is a makeweight.
To the extent, defendant is now suggesting he actually told the court
the opposite because he checked the box for “no” rather than “yes,” the
transcript of the hearing demonstrates the court and defendant understood
that he was claiming he was able to represent himself and was not impaired
by mental illness.
15Defendant, too, was adamant he was “not a mental health issue,” and
denied he had ever talked with jail mental health staff.
28
Defendant’s theme from the beginning of the proceedings and to its
conclusion was that he was pepper sprayed unreasonably at the shopping
mall, reacted as he did on account of his PTSD, lost his job as a result of the
arrest, and was falsely imprisoned. This theme was consistent with his
distrust that he could get a fair resolution in the legal system, which was also
apparent from the beginning of the criminal proceedings. He did not trust
his jailers who he said mistreated him and against whom he allegedly filed
grievances. He had multiple negative experiences with public defenders and
made Marsden motions. He did not trust the authenticity of the videotape
evidence; he was concerned the prosecutor might tamper with evidence. He
came to believe that the judge was biased against him, and belatedly
attempted to exercise a peremptory challenge and then disqualify the judge.
He did not believe the court followed the correct procedure in addressing the
disqualification issue. He did not think he could get a fair trial from a jury.
But distrust of authority is not necessarily a sign of mental illness. As the
court observed, defendant’s sense that the trial was “rigged against him” may
stem “from Mr. Tamrat’s own personal experiences that he is relating to.”
Defendant’s behavior was sometimes rude and obstreperous, and he
sometimes resorted to insults and profanity, but as Sergeant Patrick
observed, defendant’s outbursts usually came after he “receive[d] negative
information or things d[id] not go in the direction he” wanted. Again, the
court reasonably could have determined defendant’s verbal outbursts were
not evidence of mental illness. And although voicing disrespect may have
undermined the effectiveness of his advocacy and risked being subjected to
sanctions (which were never imposed), it did not mean defendant was
incompetent to represent himself. (See People v. Taylor (2009) 47 Cal.4th
29850, 866 [“self-representation more often than not results in detriment to the
defendant, if not outright unfairness”].)16
Defendant argues his statement about the FBI, his uncle’s statement
about his paranoia, the testimony at the courtroom security hearing about his
behavior in jail, and his decision to absent himself from trial compel the
conclusion that he was “incompetent to represent himself.” The Attorney
General responds that even assuming defendant’s statements about the FBI
and the uncle’s statements were indicative of “mental instability” that does
not mean defendant was unable to “ ‘carry out the basic tasks needed to
present the defense without the help of counsel,’ ” citing Johnson, supra, 53
Cal.4th at page 530. We think the Attorney General has the better
argument, in light of all we have described about defendant’s consistent
ability to actually carry out the basic tasks of his defense all the while
displaying some conspiratorial and perhaps paranoid views.
Further, the trial judge’s contemporaneous observations are critical.
As of September 17, the trial judge estimated defendant had appeared before
him 20 times or more. The court characterized the motions in limine
hearings as “almost three full days with Mr. Tamrat discussing somewhat
sophisticated legal issues,” and noting he “seems to be following along.”
Addressing directly the issue of defendant’s announcements that the
proceedings were rigged against him, the court said this could “show some
paranoia,” but “this can also be from Mr. Tamrat’s own personal experiences
that he is relating to,” an apparent reference to the circumstances that led to
16 We can only speculate how defendant would have conducted himself
if he had not voluntarily absented himself from the courtroom. But that is
not our inquiry here. A defendant in a felony case such as this one has a
right not to be present, defendant here chose that course, and he does not
raise his absence as an alternative ground for appeal.
30
defendant’s arrest and prosecution in this case. Based on what the court had
observed, defendant’s “comments about a chip in his body from the FBI” did
not “interfere with his ability to understand the nature of the charges and to
represent himself in this matter.” Defendant agreed with this point, and
without profanity. About a week later, as jury selection was about to begin
without defendant, the trial court reiterated its reasons for finding defendant
competent to represent himself, notwithstanding defendant’s decision to
absent himself from the proceedings. The court characterized that decision
as “not new or aberrant behavior.” Rather, “he knows what he’s doing . . . his
conduct is calculated here . . . and is consistent with his belief that he cannot
get a fair trial even if he participated in any way.”
The trial court also suspected gamesmanship on defendant’s part.
Faced with an increasing barrage of verbal insults from defendant as jury
selection loomed, the trial court, patient throughout, observed that defendant
was “trying whatever you need to do to get some reaction from me so you can
challenge me in this case.” To the trial court’s credit, it persisted with
patience and solicitude.17
Defendant points to the prosecutor’s statement that by absenting
himself from trial, defendant put any conviction at risk and that the most
prudent course might be to revoke his right to represent himself to protect
the record. But in the end, after the trial court explained why it would
proceed with the jury trial, as we have described above, the prosecutor
submitted on the court’s ruling.
17 Defendant was already planning for writs and his appeal, requesting
transcripts and telling the court in objection to one ruling that if he was
denied the relief he sought that was “about . . . the 10th reason I could appeal
this case if I get falsely convicted.”
31
In sum, defendant exercised and persistently maintained his right to
represent himself. The trial court repeatedly offered to appoint the public
defender throughout the proceedings, and defendant repeatedly rejected this
option. The trial court on this record did not abuse its discretion in allowing
the self-representation to proceed without holding a mental competency
hearing.
B.
Senate Bill No. 567 (2021-2022 Reg. Sess.) amends Penal Code section
1170 effective January 1, 2022. Newly enacted section 1170(b)(6) provides in
relevant part, “[U]nless the court finds that the aggravating circumstances
outweigh the mitigating circumstances that imposition of the lower term
would be contrary to the interests of justice, the court shall order imposition
of the lower term if any of the following was a contributing factor in the
commission of the offense: [¶] (A) The person has experienced psychological,
physical, or childhood trauma, including, but not limited to, abuse, neglect,
exploitation, or sexual violence.”
After we filed our initial opinion on November 30, 2021, we granted
rehearing to consider defendant’s claim that he is entitled to a reduction in
his sentence under section 1170(b)(6). The Attorney General recognizes the
new sentencing provision applies to defendant. Because the new law is
ameliorative and defendant’s case will not be final by January 1, 2022, we
agree with the parties that defendant is entitled to the benefit of section
1170(b)(6). (See People v. Conley (2016) 63 Cal.4th 646, 657 [under the rule of
In re Estrada (1965) 63 Cal.2d 740, 744-745, courts infer, “in the absence of
contrary indications, a legislative body ordinarily intends for ameliorative
changes to the criminal law to extend as broadly as possible, distinguishing
only as necessary between sentences that are final and sentences that are
32
not”]; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308–309 [applying
Estrada rule and concluding Proposition 57 applied retroactively because it
was an ameliorative change to the criminal law and nothing in the law
rebutted inference of intent to extend the benefit as broadly as possible].)
Defendant argues that remand is not necessary because the trial
court’s findings at sentencing “conclusively establish that [he] is entitled to a
lower term” under the new law and, therefore, the Court of Appeal can
resentence defendant. (Italics added.) We are not prepared to reach this
conclusion without remanding to the trial court. When the trial court
sentenced defendant, section 1170(b)(6) had not been enacted, and thus the
court had no reason to consider such issues as whether defendant
experienced trauma that was “a contributing factor in the commission of the
offense[s]” and whether “aggravating circumstances outweigh the mitigating
circumstances” such that “imposition of the lower term would be contrary to
the interests of justice” as specified under the new law. The trial court is in a
much better position than we are to make these factual findings and so we
will remand the matter to allow the trial court to sentence defendant under
section 1170(b)(6) in the first instance.
DISPOSITION
The sentence is vacated and the matter is remanded to the trial court
to sentence defendant under Penal Code section 1170 as amended by Senate
Bill No. 567. The judgment is otherwise affirmed.
33
_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, Acting P.J.
_________________________
Kline, J.*
A159390, People v. Tamrat
*Assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
34