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The People v. Michael Raymond Bauer

December 19, 2012


APPEAL from a judgment of the Superior Court of San Diego County, Roderick W. Shelton and Stephanie Sontag, Judges. (Super. Ct. No. SCS230471)

The opinion of the court was delivered by: Haller, J.


Reversed and remanded with directions.

Michael Bauer appeals from orders revoking his probation and imposing a six-year prison sentence as a result of his earlier guilty plea to a charge of lewd and lascivious conduct with a child under 14 years. Bauer contends he was denied his right to counsel at the probation revocation and deferred sentencing hearings. We conclude the trial court erred in failing to inform Bauer of his right to counsel at these hearings and to obtain a knowing waiver of this right. We determine the error requires a reversal of the probation revocation and sentencing orders, conditioned on Bauer exercising his right to counsel on remand.


On April 24, 2009, Bauer put his hands down the pants of a seven-year-old boy and touched the boy's penis. This incident occurred in the bathroom of a fast food restaurant. Shortly after, Bauer was arrested and charged with one count of lewd and lascivious conduct. (Pen. Code,*fn1 § 288, subd. (a).)

On December 17, 2009, Bauer initialed and signed a form requesting to represent himself on the charges brought against him, and acknowledging he was aware of his right to counsel and the dangers of self-representation. (See People v. Lopez (1977) 71 Cal.App.3d 568, 571.) At a hearing on the same date, the court orally informed Bauer of his right to counsel and explained the disadvantages associated with self-representation. Bauer said he understood each of the court's admonitions and elected to represent himself.

One year later, on December 21, 2010, Bauer entered a guilty plea to the section 288, subdivision (a) offense pursuant to a plea agreement in which he represented himself. The court suspended imposition of sentence for five years, and placed Bauer on five years' formal probation with certain conditions, including not associating with minors and "[not] be[ing] in places where minors congregate, unless with an adult approved by the probation officer." Bauer was also required to register as a sex offender. At the conclusion of the hearing, Bauer was released from custody.

About six weeks later, on about February 2, 2011, Bauer was arrested for allegedly violating his probation. Six days later, the court (Judge Roderick Shelton) held an arraignment hearing on the probation violation charges, which the prosecutor stated was that Bauer "absconded from probation." Bauer represented himself at the hearing, and there is no showing he was advised of his right to counsel. When the court asked Bauer whether he wanted to admit or deny the charge, Bauer responded that he had understood from his probation officer and the "paperwork" that he would have the opportunity to argue at the hearing why probation should not be revoked, and asked "what would be the result" of his admission or denial. The court responded that "[i]f you admit I will set it for sentencing after revocation" and "[i]f you deny I'll set it for evidentiary hearing." When Bauer did not respond with a denial or admission, the court entered a denial on Bauer's behalf. Bauer objected, stating that the court was "violating my rights since I am pro per." The court then concluded the hearing.

One month later, on March 7, the court (Judge Stephanie Sontag) held the probation revocation hearing. At the outset of the hearing, the prosecutor stated that the alleged probation violations were: (1) "absconded probation"; and (2) "contact with a minor." The evidence at the hearing showed that on February 1 (about six weeks after Bauer was placed on probation), Bauer went to the Escondido police department to register as a sex offender. While he was there, Bauer told one of the detectives that he planned to have contact with a homeless family including an eight-year-old boy and wanted to know whether that would violate his probation conditions. The detective then called Bauer's probation officer, Kirk Palmer, who spoke on the phone with Bauer. Palmer told Bauer that his probation conditions prohibited contact with minors and, when Bauer challenged this statement, Palmer told Bauer that he was required to comply with the probation officer's directions. Palmer told Bauer to report to his office the next morning, but Bauer said he could not do that because he was a student and was disabled. Shortly after, Bauer left the police department without completing his sex offender registration process. About an hour later, Bauer telephoned Palmer and said he was going to kill himself. Shortly after, Bauer was arrested.

At the probation revocation hearing, Bauer's probation officer (Palmer) testified to the circumstances summarized above. Palmer also said that after he arrested Bauer, Bauer admitted that he had contact with a homeless minor on "four or five occasions." In a tape recording played for the court, Bauer admitted to "roughhousing" with the minor.

In his testimony, Bauer acknowledged that he had contact with a child of a homeless family, but said he was helping members of this family who were receiving services from the same homeless agency that was providing assistance to Bauer. Bauer argued that his contact with the minor should not be considered a probation violation because the contact occurred in a "public place," the contact was "by accident," and "it was a common case of forgetfulness."

After the hearing, the court found there was sufficient evidence to show that Bauer had physical contact with a minor and this contact violated the probation condition prohibiting contact with minors. However, the court found the evidence was insufficient to support the "absconding" probation violation allegation. The court then ordered a 90-day evaluation under section 1203.03 and continued the sentencing portion of the hearing.

Three months later, on June 17, the court held the sentencing hearing. Bauer represented himself and there is nothing on the record showing he was told of his right to appointed counsel or given admonishments about the dangers of self-representation. At the outset of the hearing, the court denied Bauer's motion to continue. After permitting extensive argument, the court denied ...

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