P. v. Gebhardt

Filed 4/18/07 P. v. Gebhardt CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTOPHER J. GEBHARDT,
Defendant and Appellant.
E039087
(Super.Ct.No. FSB47288)
OPINION
APPEAL from the Superior Court of San Bernardino County. Marsha Slough,
Judge. Affirmed in part, reversed in part with directions.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer and Edmund G. Brown, Attorneys General, Mary Jo Graves, Chief
Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Raquel
M. Gonzalez, Supervising Deputy Attorney General, and Quisteen S. Shum, Deputy
Attorney General, for Plaintiff and Respondent.

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2
A jury convicted defendant of driving under the influence, causing injury (Veh.
Code, § 23153, subd. (a)), driving with a blood alcohol level of 0.08 percent or greater
(Veh. Code, § 23153, subd. (b)) and leaving the scene of an accident (Veh. Code, §
20001, subd. (a)), during all of which he inflicted great bodily injury on the victim. (Pen.
Code, § 12022.7, subd. (a).) In bifurcated proceedings, he admitted suffering two felony
convictions for which he served prison terms (Pen. Code, § 667.5, subd. (b)) and the trial
court found that he suffered a third.1 He was sentenced to prison for 17 years 4 months,
1 It should be noted that the information, which bears a file stamp, alleged that
defendant had suffered two priors for which he served prison terms, specifically, a
conviction of violating Penal Code section 215 in 1996, and a conviction of violating
Penal Code section 12020, subdivision (a)(4) in 2002. In the record before us, there is an
undated amended Information which bears no file stamp. It alleges that there are three
priors for which defendant served prison terms, i.e., a 1990 felony driving under the
influence (DUI), the 1996 conviction of violating Penal Code section 215, and the 2002
conviction of violating Penal Code section 12020, subdivision (a)(4). There is no
notation in any of the minutes that this document was filed by the prosecutor or that
defendant was arraigned on it. At the bifurcated proceedings on the truth of the prior
allegations, defendant admitted to suffering the 1990 felony DUI and what the prosecutor
said was “a violation of Penal Code section 212” in 2002, which bears the same number
as the violation of Penal Code section 12020, subdivision (a)(4) alleged in the
information and the amended information. We assumed the prosecutor misspoke (or her
words were misreported) when she identified the section of the Penal Code defendant
violated in 2002. The trial court found defendant had been convicted of the 1996
violation of Penal Code section 215. Just before imposing sentence, the trial court noted
that, pursuant to Penal Code section 667.5, subdivision (b), defendant had admitted or
been found by it to have been convicted of the 1990 DUI, the 1996 carjacking and
“carrying a concealed weapon in 2002.” However, when it imposed sentence, it imposed
a 5-year term for the 1996 carjacking under Penal Code section 667, subdivision (a), and
“1 year for each of the other 2 convictions which were admitted by [defendant] at the
time of this trial . . . [making] . . . a total state prison term . . . of 17 years 4 months.”
Despite this, the abstract of judgment and minutes of the sentencing hearing show that the
trial court imposed three one year terms for each of the Penal Code section 667.5,
subdivision (b) true findings, for a total sentence of 18 years 4 months, which is not
[footnote continued on next page]

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and appeals, claiming the trial court erred in allowing him to represent himself, in
excluding evidence and in sentencing him.
After the case was fully briefed, the United States Supreme Court decided
Cunningham v. California (Jan. 22, 2007, No. 05-6551) ___U.S.___ [2007 D.A.R. 1003].
Therein, the court held that the California determinate sentencing law violates a
defendant’s Sixth and Fourteenth Amendment rights to trial by jury by allowing the trial
court to impose the upper term based on facts found by it, applying a preponderance of
the evidence standard.
Under the compulsion of Cunningham, we reverse the sentence for count 1 and
remand the matter to the trial court to permit the People to have an opportunity to present
what they believe are factors justifying the imposition of an upper term to a jury. In the
event they opt not to do so, or if a jury does not find such factors, the trial court shall
resentence defendant, imposing either the mid or low term for driving while under the
influence, causing injury (count 1).
We reject defendant’s remaining contentions and affirm his convictions and
sentences on counts 2 and 3 and the prior convictions/prison enhancments.
The facts surrounding the crimes of which defendant was convicted are irrelevant t
this opinion.
[footnote continued from previous page]
supported by the oral pronouncement of the trial court. The trial court should take care
not to repeat these errors on remand.

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ISSUES AND D ISCUSSION
1. Self-Representation
Defendant made a Marsden2 motion on May 27, 2005. During the hearing on the
motion, defendant told the trial court that he had been through a trial before and his court
appointed attorney was “corrupted” and, due to this, defendant “c[ould not] believe or
trust attorneys in this courtroom.” He said he wanted to represent himself in the current
case because he was present during these offenses and knew what really happened, while
his attorney did not. He said he had no problem taking the deal then being offered by the
People, but the latter wanted to double his sentence due to his prior strike conviction,
which defendant believed had been obtained illegally, i.e., through “tricking” the jury that
convicted him. Defendant announced that he intended to call, during the hearing to
determine whether he had been convicted of the strike prior, the juror in the trial of the
prior who would support his claim that that jury had been tricked. Defense counsel
acknowledged that defendant wanted to represent himself. The trial court agreed to hear
defendant’s motion pursuant to Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525]
(Faretta) almost three weeks hence and pointed out that defendant could spend the
interim thinking about his desire to represent himself. The trial court told defendant,
“People, in my view, are also better represented by a lawyer who can look into facts and
subpoena people . . . .”
2 People v. Marsden (1970) 2 Cal.3rd. 118 (Marsden).

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On June 17, 2005, during the first proceeding following arraignment, defense
counsel told the trial court that defendant wanted to make a motion to represent himself.
The following colloquy occurred between defendant, his attorney, the prosecutor and the
trial court:
“THE COURT: [To defendant] [Y]ou have just been given a document, I think,
that I need to go over with you. [¶] Do you understand, Mr. Gebhardt, that it is generally
not a wise choice to represent yourself in a criminal matter? [¶] . . . [¶]
“THE DEFENDANT: Yes, I do.
“THE COURT: [¶] . . . [¶] I am going to go over the form with you, and I want
you to look at it. And would you read to me the second statement. . . .
“THE DEFENDANT: ‘The penalties for the offenses if found guilty and
additional consequences that could result.’
“THE COURT: In other words, do you understand the penalties for the offenses
that you’re charged with if the jury found you guilty?
“THE DEFENDANT: Yes
“THE COURT: What’s your understanding of them? [¶] . . . [¶] What do you
understand your exposure to be?
“THE DEFENDANT: The money that is going to be involved bringing all the
people in the jury, the Court is going to retaliate and give me more time.
“THE COURT: What do you understand your maximum time in state prison to be
based on the charges?
“THE DEFENDANT: From what I hear right now, it’s 6, with 85.

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“THE COURT: You have 6 years with 85 percent?
“[PROSECUTOR]: That’s the offer.
“[DEFENSE ATTORNEY]: That’s the offer.
“THE COURT: Okay. That’s the offer. [¶] Do you understand that I will not
give you any special consideration if you are representing yourself throughout the course
of this trial?
“THE DEFENDANT: I understand.
“THE COURT: Do you understand that you have to comply with all of the rules
of evidence and all the other rules of criminal proceedings just as though you were
trained in law school?
“THE DEFENDANT: I understand that, . . . [¶] . . . [¶]
“THE COURT: Do you understand that incompetency of counsel cannot be raised
on appeal if you go to trial and you represent yourself and lose? In other words, you
can’t say [, “]I was incompetent as a lawyer.[”]
“THE DEFENDANT: I understand.
“THE COURT: Okay. Do you understand that disruptive behavior on your part
during any of your court proceedings, including the trial, could result in the Court
terminating your pro per status? Do you understand that?
“THE DEFENDANT: Yes.

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“THE COURT: Do you understand that if you cannot afford an attorney that you
have the right to have one, a public defender, to continue representing you? Do you
understand that?
“THE DEFENDANT: Yes.
“THE COURT: Do you need an interpreter?
“THE DEFENDANT: No.
“THE COURT: All right. What is your date of birth?
“THE DEFENDANT: 7-4-64.
“THE COURT: Can you explain to me what your years of schooling have been?
“THE DEFENDANT: I think I went up to about 10th or 11th grade, but I also
took a course in business college and, you know, other things I always read and went into
the law books and stuff like that.
“THE COURT: . . . Have you been involved in any prior criminal proceedings in
the past such that makes you feel like you’re competent to represent yourself?
“THE DEFENDANT: Um, yeah. That’s one of the reasons that I feel it would be
better.
“THE COURT: Have you represented yourself in the past, or did you have a
lawyer in the past?
“THE DEFENDANT: I wanted to [represent myself], but I put my faith in the
lawyer, and he really did it this time. That’s why I don’t want to have nobody do it again.
“THE COURT: Can you read English?
“THE DEFENDANT: Yes.

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“THE COURT: Do you have difficulty understanding, reading English?
“THE DEFENDANT: No. [¶] . . . [¶]
“[DEFENSE ATTORNEY]: [¶] . . . [¶] I did speak with [defendant] about this
yesterday. I know [the attorney who appeared specially for defense counsel on May 25,
2005] has spoken with him. And he is very adamant that he wants to exercise his right to
represent himself. He just feels based upon what has happened to him in his past cases
that he is better off representing himself. [¶] I have talked to him about the law and the
fact that he has to follow courtroom rules and procedures as well as being able to clearly
communicate with the Court. I have advised him of Faretta versus California. [¶]
Under the Sixteenth and Fourteenth Amendment, it’s his right. And he’s adamant that he
wants to represent himself. [¶] . . . [¶]
“THE COURT: [To defendant] . . . I have asked and inquired into your
educational background, training and knowledge. Based upon my inquiries, I find that
you are knowingly, intelligently and voluntarily giving up your right to counsel. I will
allow you to represent yourself in this case. . . . [¶] However, if at any point in
time, . . . you want me to reappoint the public defender to represent you, tell me, and I
will do that.
“THE DEFENDANT: I don’t think that’s going to happen.
“THE COURT: [T]hat does not mean that we can get ourselves involved in the
middle of trail and all of a sudden you say ‘Hey, I want a lawyer.’ That might be a little

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bit too late. I don’t want you to think that. But if you want a lawyer, tell me you want a
lawyer, and the Court will be happy to consider the request.
“THE DEFENDANT: I look at it like this, your Honor, if I want to stick my foot
in the mud, I will do it myself. [¶] . . . [¶]
“THE COURT: Do you understand that your case is being called back July 1 for
assignment calendar, . . . with trial starting July 5? [¶] Will you be ready to proceed by
that time?
“THE DEFENDANT: Yes. . . .”
The form to which the trial court referred is included in the record before this
court.3 The trial court went over each point in the form orally with defendant, except for
one, which dealt with the fact that defendant would be opposed by a trained, experienced
prosecutor should he choose to represent himself.
Defendant here essentially contends that “‘the record as a whole [fails to]
demonstrate . . . that [he] understood the disadvantages of self-representation, including
the risks and complexities of the particular case.’” (People v. Blair (2005) 36 Cal.4th
686, 708.) We review the matter de novo. (People v. Danks (2004) 32 Cal.4th 269, 295.)
Defendant carries the burden of showing that his waiver of counsel was not knowing and
intelligent. (People v. Truman (1992) 6 Cal.App.4th 1816, 1824.) This burden is not
satisfied by simply pointing out that certain advisements were not given. (Ibid.)
However, this is primarily what defendant does here.
3 Defendant did not sign it.

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Defendant made clear to the trial court during the hearing on his Marsden motion
that he was aware of the facts involved in his case. In fact, he felt that he was more
competent to represent himself than to have a lawyer represent him because of that
familiarity. During the hearing on the Faretta motion, his attorney advised the court that
he had explained the law to defendant. Defendant twice represented to the trial court that
he was aware of the deal that was being offered by the prosecutor. It is highly unlikely
that he would have this awareness without also knowing what maximum he faced if he
rejected the deal. In fact, he told the trial court during the Faretta hearing that he was so
aware. He demonstrated knowledge of how criminal proceedings occurred in that he
knew there would be a separate trial involving the truth of the prior allegations, and he
had a plan as to how to conduct that trial. He had been through the system numerous
times. Given this, it would also be highly unlikely that he was unaware that the
prosecutor he faced was an experienced litigator. He had twice been told by the trial
court, once during the Marsden hearing and once during the Faretta hearing, that self-
representation was not wise or preferable. He acknowledged knowing he would be
expected to comply with all the rules of evidence and procedure, as though he were an
attorney, and he would be given no special consideration. He knew he could not claim
incompetency of counsel on appeal if he represented himself. He had gotten as far as the
10th or 11th grade, had taken courses in business college and had read law books. He
had no difficulty reading or understanding English. According to his attorney, he was
“very adamant” about wanting to represent himself. As defendant himself stated, “[If] I
want to stick my foot in the mud, I will do it myself.” He had over two weeks to think

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about his decision before he officially made it, and, of course, he had the rest of the trial
to rescind it.4
As in Blair, “[t]hese facts support the conclusion that defendant understood the
Faretta warnings.” (People v. Blair, supra, 36 Cal.4th at p. 709.) Defendant has not
carried his burden of showing that his waiver was not knowing and intelligent.
2. Exclusion of Evidence
After defendant testified, he announced that he had no other witnesses to call. The
trial court informed the jury that it would be reviewing all the documents, adjourn for the
day, give instructions, have argument by the prosecutor and defendant and submit the
case to the jury on the following court day. After the trial court, the prosecutor and
defendant went over exhibits and instructions, proceedings were adjourned with the trial
court saying, “[W]e’ll resume on [the next court day] with closing [arguments] and
instructing the jury.” At the beginning of proceedings the next court day, the trial court
noted that it had just been handed a notice of motion to introduce evidence of the
defendant’s character and defendant stated orally that he had filed such a motion.
Defendant here concedes that there is no such written motion in the superior court file
and the Clerk’s Transcript supports this.5 The trial court pointed out to defendant that he
4 As the People correctly point out, in the weeks following the granting of his
motion for self-representation, the record makes clear that defendant was aware of the
charges against him and their attendant sentences and he reiterated his desire to continue
to represent himself.
5 The People appear to be a bit confused on this point. Before defendant
mentioned the motion to introduce character evidence, he made a motion “for the Court
[footnote continued on next page]

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had rested the prior court day and the time to present such evidence was during the trial.
Defendant replied that he had not rested the previous court day. The matter was not
further addressed.
Defendant here contends that the trial court erred in failing to allow him to present
character evidence or, in the alternative, to consider his motion to be a motion to reopen
and grant it. Of course, we have no idea what was in the motion, so we are completely
unable to assess the prejudicial impact of the trial court’s ruling, even if we were to fault
the trial court on either score. As such, reversal of defendant’s convictions on the basis
that this evidence should not have been excluded would require pure speculation on our
part that it might have made a difference in the outcome of defendant’s trial. This we
cannot do.
D ISPOSITION
Defendant’s convictions are affirmed, as are his sentences for counts 2 and 3 and
the prior/prison enhancements. His sentence for count 1 is reversed and the matter is
[footnote continued from previous page]
to order the return of Gebhardt, the test results, November 12, 2005, and the page stating
I was wearing a helmet[.]” After mentioning the character evidence motion, defendant
said, “These documents consist of four pages: blood specimens, one page of receipts
stating I was wearing a helmet, pictures of the roadway where the motorcycle fell and so
forth.” Although the People interpret the foregoing as meaning that this latter
information was part of the character evidence motion, logic suggests that it referenced
the first motion defendant made. Indeed, after the trial court reiterated that one of
defendant’s motion “asks to submit narrative supplemental reports[,] . . . blood specimen
reports, photos of the accident[,] . . . an overall of the photographs on Thursday
afternoon, medical declaration of condition . . . and . . . arrest application . . .” the trial
court denied that motion. If this denial referenced the character evidence motion, as the
[footnote continued on next page]

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remanded to the trial court to permit the People to have the opportunity to have a jury
determine beyond a reasonable doubt the existence of one or more aggravating factors. If
the People choose not to do this or if the jury fails to find one or more aggravating
factors, the trial court is directed to resentence defendant to the lower or mid term.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
HOLLENHORST
J.
RICHLI
J.
[footnote continued from previous page]
People assert, then the trial court failed to rule on defendant’s first motion, which we find
difficult to believe.

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