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Name: People v. Bauer
Case #: D060346
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 12/19/2012

A probation revocation/deferred sentencing hearing is not a continuation of the initial criminal proceeding and a defendant must be advised of his right to counsel at the subsequent hearing. Although the United States Supreme Court has declined to establish an inflexible constitutional right to counsel at every revocation hearing, under California law an indigent criminal defendant has a right to appointed counsel at a probation revocation hearing and a constitutional right to counsel at a deferred sentencing hearing, and must be informed of these rights. Here, appellant represented himself when he pled guilty to a violation of Penal Code section 288, subdivision (a) and was placed on probation. At a subsequent revocation hearing held a couple of months later, he again represented himself and was found in violation of probation and ultimately sentenced to state prison. There was no showing that he was advised of his right to counsel at the revocation hearing. The court rejected the Attorney General’s argument that because appellant had been advised of the right to counsel at the initial hearing and there was such a short passage of time between the two processes, appellant was sufficiently advised. As the court noted, the two processes were sufficiently different such that it would be reasonable for appellant to assume there was no right to counsel at the less formal revocation hearing, and view the revocation hearing as an administrative hearing with no right to counsel. Additionally, although appellant had been advised of his right to counsel at the initial proceedings, it was early on and approximately a year prior to the revocation hearing. Under either a per se error standard or a harmless error standard, the failure to advise appellant of his right to counsel was prejudicial and the matter was reversed. Because appellant was previously adamant in his desire to represent himself, if, on remand, he again opted to represent himself following advisement, there would be no need to hold a second probation evidentiary hearing and the sentence could be reinstated.