Defendant failed to demonstrate that he was denied his right to self-representation during Proposition 47 proceedings. Fedalizo represented himself in two cases: an initial case in which he pleaded no contest to second degree burglary, receiving stolen property, and other charges, and a second case for counterfeiting a seal (Pen. Code, § 472), which was committed while he was on probation in the first case. He admitted violating his probation and was sentenced in both cases. After the passage of Proposition 47, he petitioned to have the offenses reduced to misdemeanors. The motion was denied as to the counterfeiting case, which was affirmed in a separate appellate opinion. In the first case, appointed counsel appeared on Fedalizo’s behalf. The trial court granted the petition and resentenced him. On appeal, Fedalizo claimed his Sixth Amendment right to be present at the resentencing hearing and right to represent himself were denied. Held: Affirmed. The Sixth Amendment right to counsel is self-executing. The right to self-representation, however, must be clearly and timely asserted, and the defendant must knowingly waive his right to counsel; it may be waived expressly or impliedly through conduct that is inconsistent with the assertion of that right. Prior to the resentencing, a deputy public defender appeared on Fedalizo’s behalf and waived his presence. Absent evidence that counsel misrepresented his authority to appear for Fedalizo, it is presumed that counsel obtained his consent to act as his attorney. Further, trial courts have some flexibility in dealing with Proposition 47 petitions, including appointing the public defender and relying on them to make personal contact with the defendant. Because Fedalizo did not show that the deputy public defender acted without his approval, he waived his right to self-representation. [Editor’s Note: Justice Segal dissented and would have reversed.]

Defendant did not have the right to be present at the Proposition 47 resentencing hearing. When a defendant files a Proposition 47 petition, the trial court makes an initial, legal determination regarding eligibility for resentencing. Fedalizo was not entitled to be present for the eligibility determination, which was made in open court with no opposition from the prosecution. The trial court then granted the petition and resentenced Fedalizo. Once the petition was granted, the offenses became misdemeanors by operation of law for purposes of resentencing. Under Penal Code section 1193, subdivision (b), judgment in a misdemeanor case may be pronounced in the defendant’s absence where his presence is waived and a misdemeanor defendant may appear through counsel (Pen. Code, § 977, subd. (a)), which is what occurred here.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B263029.PDF