People v. Venegas CA4/2

Filed 10/7/22 P. v. Venegas 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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, E075326
v. (Super.Ct.No. SWF1707731)
SALVADOR VENEGAS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John M. Davis, Judge.
Reversed.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Christine Y. Friedman, Jennifer
B. Truong and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and
Respondent.
1
In March 2018, a jury found defendant, Salvador Venegas, guilty of assault with
force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4))1 and battery
causing serious bodily injury (§ 243, subd. (d)). The trial court found true the
allegations that defendant had suffered two prior strike convictions (§§ 667, subds. (c)
& (e)(2)(A), 1170.12, subd. (c)(2)(a)) and one prior serious felony conviction (§ 667,
subd. (a)).
The trial court trailed defendant’s sentencing behind defendant’s separate death
penalty trial, so that there could be a single sentencing hearing for the two cases. In
June 2020, in the instant case, the trial court sentenced defendant to prison for a
determinate term of five years and a consecutive indeterminate term of 25 years to life.
During the trial, defendant was self-represented. Defendant contends that the
judgment must be reversed because, when advising defendant about the risks of self-
representation, the trial court misinformed defendant regarding the maximum prison
sentence to which defendant was exposed in this case. We reverse the judgment.
PROCEDURAL HISTORY
A. PROCEEDINGS PRIOR TO FEBRUARY 22, 2018
1. COMPLAINT
The felony complaint against defendant was filed on October 30, 2017. The
complaint did not allege any prior convictions. On October 31, 2017, the Honorable
1 All further statutory references are to the Penal Code unless otherwise
indicated.
2
Mark A. Mandio presided over the arraignment on the complaint, and the following
exchange occurred:
The Court: “You do not want me to appoint you an attorney?
“The Defendant: No, Your Honor. I want to proceed pro per.
“The Court: You want to represent yourself in this case, too?
“The Defendant: Yes, Your Honor.
“The Court: And you are already representing yourself in another case; right?
“The Defendant: Yes.
“The Court: All right. I don’t think I need to go through the Faretta[2 ]
advisement twice. So we’ll show you as your OWN attorney representing yourself.”
Defendant was self-represented at his preliminary hearing on December 15,
2017.
2. ORIGINAL INFORMATION
The original information was filed against defendant on January 2, 2018. The
original information did not allege any prior convictions. On January 5, 2018,
defendant was arraigned on the original information. During that arraignment, the trial
court, with the Honorable Anthony Villalobos presiding, asked defendant, “And, sir,
you understand your rights in this matter?” Defendant responded, “I do, Your Honor.”
The trial court did not mention the issue of self-representation. (§ 987, subd. (a).)
2 Faretta v. California (1975) 422 U.S. 806, 834-835.
3
B. FEBRUARY 22, 2018
1. FIRST AMENDED INFORMATION
On February 22, 2018, the People filed a first amended information (FAI). The
FAI included allegations of prior convictions as follows:
“SERIOUS PRIOR OFFENSE
“It is further alleged that the defendant, SALVADOR VENEGAS was on or
about 08/21/2000 in the Superior Court of the State of California, for the County of Los
Angeles, convicted of the crime of, ATTEMPTED MURDER, a serious felony, in
violation of section 664/187, subdivision (a) of the Penal Code, within the meaning of
Penal Code section 667, subdivision (a).
“STRIKE PRIORS—667(c) & (e)(2)(A) and 1170.12(c)(2)(a)
“It is further alleged that prior to the commission of the offense(s) charged herein
the defendant, SALVADOR VENEGAS, was convicted of two or more serious and
violent felonies, within the meaning of Penal Code sections 667, subdivisions (c) and
(e)(2)(A), and 1170.12, subdivision (c), subsection (2)(a), to wit:
“FIRST PRIOR, a conviction on or about 08/21/2000 in the Superior Court of
the State of California, for the County of Los Angeles, for the crime of ATTEMPTED
MURDER, in violation of Penal Code section 664/187, subdivision (a), and
“SECOND PRIOR, a conviction on or about 08/21/2000 in the Superior Court
of the State of California, for the County of Los Angeles, for the crime of
ATTEMPTED MURDER, in violation of Penal Code section 664/187, subdivision (a).”
4
2. HEARINGS
At 8:55 a.m. on February 22, 2018, the trial court, with the Honorable John M.
Monterosso presiding in Department S201, held a hearing on defendant’s request for a
continuance. The trial court denied the motion, set the jury trial for that same day, and
reassigned the case to Department S202.
At 11:02 a.m. on February 22, 2018, the trial court, with the Honorable John M.
Davis presiding, called the case. At the beginning of the hearing, the following
exchange occurred:
“The Court: SWF1707731. And the prosecutor is present, and the defendant is
pro per. And I’m assuming that all the pro per information has been done, the request
by the defendant, and the filling out of the forms and all of that, and the discussion?
“[Prosecutor]: I believe so, yes.
“Defendant Venegas: I have, Your Honor.”
Despite the indication that a discussion about self-representation had already
occurred, the trial court said it felt “obligated to warn [defendant] again because now
we’re on the eve of trial.” As the trial court described the disadvantages of self-
representation, it said, “So it really does put you at a disadvantage. And when you’re
talking about—and like I said, I don’t really know the . . . facts here. But when you’re
talking about alleged crimes of violence done by you, then you’re also talking about
considerable time, especially if you have a criminal record.”
After more comments by the trial court, the following discussion occurred:
5
The Court: “So by all of this, what I’m trying to say is you should reconsider
representing yourself. First of all, did you understand everything I said?
“Defendant Venegas: I did, Your Honor.
“The Court: Okay. And is it still your choice to go forward pro per in this trial?
“Defendant Venegas: At this point, yes. I have just been served an amended
Information.
“The Court: All it did is add a strike. It added a strike.
“Defendant Venegas: Yes.
“The Court: So that changes your sentencing structure.
“Defendant Venegas: Absolutely.
“The Court: —in what you’re—you know, they probably talked to—somebody
has probably talked to you at some point about your maximum exposure. And in this
case, you know, I don’t know what was told to you before what the maximum exposure
was. But once there’s a strike added to your Information, that basically doubles what—
not always, but it’s sometimes more, sometimes less, but basically doubles the
possibility of what the years are that you could be sentenced to as a maximum.”
After a discussion concerning defendant’s opportunity to conduct legal research
in the jail, the dialogue continued as follows:
The Court: “[Y]ou would be able to look up hopefully by Monday what it means
to add a strike to your Information. But just in general terms, it doubles the exposure
you have. It doesn’t mean that that would be imposed. It just—that depends on the
facts of the case and your criminal history. And I don’t really know either one of those
6
things at this time. I’m just advising you in general. [¶] And so first of all, do you
understand what I said about this—your strike being added?
“Defendant Venegas: I do, Your Honor. I do as far as the repercussions.
“The Court: Yes. We can argue about the strike itself.
“Defendant Venegas: Okay.
“The Court: And then that’s something I’ll give you a chance to do. But I’m just
saying that’s the general—if it’s kept—and I’m not ruling that—because I don’t know
anything about it at this point. I’m just saying if it’s kept, whatever you are looking at
suddenly becomes more serious. And so that should also factor into whether you want
to complete—continue representing yourself.
“Assuming that it is just wors[t] case scenario for you—and like I said, I’m not
ruling because I haven’t heard any of the factors at all about anything. If it was kept on,
and if you were convicted, and that was found to be a true strike prior, then you’re
looking at a significant amount of time. [¶] And so I just wanted you to reconsider
representing yourself in light of this. Do you recall what you were told was your
exposure before this?
“Defendant Venegas: I have not. It’s my understanding it’s two or four years.
“[Prosecutor]: With the 243(d) and the 245(a)(4) are 654 [sic], meaning that you
would only be sentenced on one of them. So the upper term on a 245 is four years times
two is eight years. And I didn’t add any GBI allegation or anything in that regard.
“The Court: So four years to eight years?
“[Prosecutor]: Correct.
7
“The Court: So anyway, that’s kind of the ballpark at least for you to consider.”
After a discussion of defendant’s death penalty case, which was also pending at
that time, the following exchange occurred:
The Court: “I’m very willing to go forward with you in pro per status if that’s
what you want to do.
“Defendant Venegas: Yes, Your Honor.
“The Court: You do?
“Defendant Venegas: I do, Your Honor.”
The court went on to discuss trial logistics. The court said it would arraign
defendant on the FAI, and the following exchange occurred:
The Court: “But as to the amended Information, have you received the amended
Information?
“Defendant Venegas: I just have, Your Honor.
“The Court: And have you—do you see the difference between the old
Information and the new Information?
“Defendant Venegas: I do, Your Honor.
“The Court: Okay. And I’ve told you what the ramifications of that is, the
sentencing difference is that you might be looked at—looking at based on this
allegation—the prior allegations being added. And let me see if—is the only thing that
was added the strike prior?
“[Prosecutor]: Yes, Your Honor.”
8
There was further discussion of trial issues and logistics, and then the court
recessed for a lunch break. When the proceedings resumed, the trial court said it was
unable to find a written Faretta petition in the court file, so it asked defendant to initial
and sign the form petition indicating that he wanted to be self-represented. (Riverside
County Sup. Ct. Form RI-OTS08.) The written petition did not provide any information
about the maximum sentence in the case. Defendant agreed to sign the form, and the
following discussion ensued:
“The Court: And now, [defendant], did you understand what you read and
signed?
“Defendant Venegas: I did, Your Honor.
“The Court: Okay. Do you need any[]more time with the form before we go
forward?
“Defendant Venegas: I do not, Your Honor.
“The Court: Okay. Now, I want to arraign you on the amended Information. So
I have in my hand an amended Information. The amended Information has a Count 1 of
a 245(a) felony by force likely to produce great bodily injury. I believe that was in the
prior one. So why don’t you get out your amended Information. [¶] Okay. You have
the one that says amended Information?
“Defendant Venegas: I do, Your Honor.
“The Court: Okay. So it’s a Count 1 of a 245(a)(4), commit assault upon [the
victim] by force likely to produce great bodily injury. Count 2, a 243, did unlawfully
use force upon the person of [the victim], inflicting thereby serious bodily injury. And
9
then it’s got several different ways of listing the attempted murder—well, there’s—I
guess it was two attempted murders.
“[Prosecutor]: Two victims.
“The Court: Two victims.
“[Prosecutor]: Yes.
“The Court: In the past?
“[Prosecutor]: Yes.
“The Court: Okay. So then there’s these attempted murders. And it’s—one is
alleged as a serious prior. That has to do with the sentencing, whether or not you’re
eligible for probation and things like that. And then there’s a strike prior, which is using
the same case because it was two or more of those serious and violent felonies, which is
what I told you before. Basically it would double your sentence.
“Also, you would now have two strikes. And if you commit a third strike, you
could be looking at 25 to life after—if you are convicted in this case. Do you
understand that?
“Defendant Venegas: Yes, Your Honor.
“The Court: Okay. And then they have the priors listed, which are two priors,
but both being convicted on 8/21/2000. Do you understand the information—the
amended Information?
“Defendant Venegas: I do, Your Honor.
“The Court: Okay. And do you waive reading of any further than I already
did—waive any further reading of it?
10
“Defendant Venegas: I do waive it, Your Honor.
“The Court: Okay. And so we will show that you have been arraigned on the
amended Information and that you understand it.”
C. TRIAL AND POSTTRIAL
Defendant was self-represented during his jury trial and the bifurcated court trial
on the prior conviction allegations. On March 16, 2018, Judge Davis presided over the
court trial on the prior conviction allegations. At the start of the bifurcated trial, the
court said, “And just so the record is clear, I have a copy of the First Amended
Information, which I assume is what we’re going off of, and that—there is an allegation
of a serious prior offense being the attempted murder, which it says was 8/21/2000 in
Los Angeles, and they’re both strikes, of course. And then they’re alleged as a first
prior and second prior separately.” After the close of evidence, the trial court said, “I do
find that these are valid priors and—both of them. They’re strike priors, and they’re
serious priors. I do find them to be valid.”
On June 22, 2018, the trial court conducted a hearing as to whether defendant’s
sentencing in the instant case would trail behind defendant’s death penalty case. There
was a discussion as to whether defendant would want a probation report in the instant
case because defendant’s attorney in the death penalty case might not want defendant
interviewed. The prosecutor asserted, “I don’t know that we necessarily need a
sentencing report because it’s a three strikes case, so the Court’s required to sentence
him to 25 to life anyway on this case.”
11
The trial court responded, “I mean, you know, counsel states that the 25 to life is
mandatory, and I’m—I don’t disbelieve you, but I haven’t heard from the defendant on
that issue.” The trial court asked defendant if defendant was requesting to trail his
sentencing behind the death penalty case, and defendant confirmed that was his request.
The court then asked defendant if he waived being sentenced by the trial judge in the
instant case, so that he could be sentenced by the judge in the death penalty case, and
the following exchange occurred:
“The Defendant: I think I would like a continuance to confer with my attorney
[in the death penalty case] about that because I didn’t talk to him about this case
particularly, and considering that the People have stated that this is a three strikes case,
and I—
“The Court: What?
“The Defendant: That this is a three strikes case so I could be subject to a life
sentence, I would like a chance to talk to my attorney to see what—if I should seek that
or if I should seek counsel at sentencing, because it’s my understanding that I could
still—I still have the opportunity to seek counsel for sentencing. So that’s something I
would—definitely would like to discuss with my attorney on my death penalty case.”
The trial court continued the matter. On August 22, 2018, defendant agreed that
he could be sentenced by a different judge.
D. MOTION FOR COUNSEL
On September 26, 2018, defendant moved for counsel to be appointed. In the
motion, defendant asserted, “Prior to trial, the court inquired about defendant’s potential
12
exposure on the case cited above, the People on behalf of Ms. Garcia 3 [sic] stated that
the max was 8 years. [¶] However, the People have elected to seek a 25-life sentence
due to defendant’s potential eligibility as a third strike candidate.” Defendant asserted
the trial court should appoint “ ‘counsel to investigate possible grounds for a motion for
a new trial.’ ” On October 12, 2018, the trial court, with the Honorable Kelly L. Hansen
presiding, appointed conflict counsel to represent defendant. Ms. Demi Tolbert
(Defense Counsel) was appointed to represent defendant in the instant case.
E. SENTENCING HEARING
Defendant was found guilty in the capital case. On December 18, 2018, the jury
in the capital case fixed the penalty at life without the possibility of parole.
Defendant’s sentencing hearing in the instant case took place on June 30, 2020,
with the Honorable Otis Sterling, III, presiding. At the hearing, defendant was
represented by Defense Counsel. At the start of the hearing, Defense Counsel stated
that she did not have complete transcripts for the trial in the instant case, but she
believed there was a basis for a motion for new trial.
Defense Counsel said, “I have pulled the transcript from the date that [defendant]
was arraigned on this first amended information on February 22nd, 2018, and it was
before Judge Davis. And about approximately 20 pages, both Judge Davis and the
prosecutor advised [defendant], who was pro per on that date, that this amended
information only added a strike—singular. It added a strike. Then both the Court and
3 Ms. Jennifer Garcia was the prosecutor in the instant case.
13
the prosecutor go on to explain the maximum commitment, for [defendant’s] benefit, to
adding a strike. [¶] And throughout this entire transcript, they both reiterate that it
basically doubles his sentence. They talk about a maximum of maybe eight years.
Then [the prosecutor] indicates that, ‘No. It wouldn’t be eight years; it would be less
than that because the two counts are just an alternative charging, and they would be
654.’ Then the Court clarifies with [the prosecutor], and he says, ‘So the maximum
exposure would be four to eight years?’ She says, ‘Correct.’ ”
Defense Counsel asserted the FAI was confusing because it did not indicate that
there were two victims for the alleged prior convictions, which shared the same date.
Defense Counsel asserted that defendant decided to proceed as self-represented “based
on the sum and substance of what was told to him and explained to him by a judge and
an experienced prosecutor, contemplat[ing] that he was facing a single strike.” Defense
Counsel made an oral motion for the trial court to strike one of the prior strike
convictions so that defendant would be sentenced with a single prior strike conviction.
Defense Counsel asserted that if the trial court denied that motion, then the matter
should be continued so that a motion for new trial could be filed after the complete trial
transcripts were obtained.
The prosecutor asserted that the FAI alleged two prior strike convictions and
defendant was arraigned on the FAI. The prosecutor asserted the FAI arraignment
transcript reflected there were two victims for the two prior attempted murder
convictions. The prosecutor also pointed to the portion of the transcript in which Judge
Davis said, “ ‘Okay. So then there’s these attempted murders, and it’s one is alleged as
14
a serious prior. That has to do with sentencing, whether or not you’re eligible for
probation and things like that, and then there’s a strike prior, which is using the same
case because it was two or more of those serious and violent felonies, which is what I
told you before. Basically, it would double your sentence. Also, you would now have
two strikes. And if you commit a third strike, you could be looking at 25 to life after—
if you are convicted in this case. Do you understand?’ To which [defendant]
responded, ‘Yes, Your Honor.’ ”
The trial court found that the FAI clearly alleged two prior strike convictions,
and that, based on the portion of the transcript quoted by the prosecutor, the court did
not “see there was any confusion as to what [defendant] was being charged with . . . .
All of that seems pretty clear.” The trial court denied the motion to strike one of
defendant’s prior strike convictions and concluded a motion for new trial would be
untimely.
In response, Defense Counsel said, “[The prosecutor] tells the pro per defendant
that his exposure is four to six years on this case. Clearly, she is not telling him
correctly. What was he supposed to do?” Defense Counsel asserted it was
unconscionable to advise a defendant that his exposure was four to six years and then
seek a life sentence. Defense Counsel argued there was legal cause to not sentence
defendant because complete transcripts of the trial were not yet available and “it appears
that [defendant] was advised by the judge and the prosecutor that he was not a three-
striker.”
15
The trial court said that if defendant were wrongly advised of his maximum
exposure, then that was cured when defendant was given a copy of the FAI and
arraigned on the FAI because the defendant was “provided a document that clearly
spells out what it is he’s going forward on and what it is he’s facing should he decide to
go forward.”
Defense Counsel said, “So you’re saying that because a judge in a black robe
sitting on an elevated platform[] tells him his exposure is four to six years and the
prosecutor who’s bringing the charges agrees it’s four to six years, but because this man
who does not have a college or law degree is handed a piece of paper that says that there
are strike priors and there’s a first prior and a second prior but it’s really kind of the
same as the serious prior, that he is supposed to figure that all out and say to himself,
‘I’m really a three-striker. Forget about what that elevated judge and district attorney
said.’ ”
The trial court responded, “Yeah. I don’t want to get into a debate about this.
But I don’t think you’re giving [defendant] enough credit.” Defense Counsel asserted
the trial court was improperly placing the burden on defendant when “the burden to give
accurate information [is] on the man in the black robe and the prosecutor.” The trial
court replied, “I don’t want to get into a debate about this.” Defense Counsel again said
there was legal cause to not proceed with sentencing.
The trial court concluded that “at the time that the judge arraigns him on that
information, he’s clearly aware of what he’s facing when he goes forward to trial, both
in terms of the substantive offenses and the allegations of the prison priors and the strike
16
priors. . . . So I don’t see there’s any legal cause to continue this for the purposes of
evaluating whether or not [defendant] was not informed properly. So your motion to
continue it is denied.” The trial court sentenced defendant to a determinate term of five
years and a consecutive indeterminate term of 25 years to life.
DISCUSSION
A. KNOWING WAIVER
Defendant contends the judgment must be reversed because he did not
knowingly waive his right to counsel due to the trial court and the prosecutor
misinforming defendant that his maximum sentencing exposure was eight years when it
was actually 30 years to life.
“ ‘A criminal defendant has a right, under the Sixth Amendment to the federal
Constitution, to conduct his own defense, provided that he knowingly and intelligently
waives his Sixth Amendment right to the assistance of counsel.’ ” (People v. Burgener
(2009) 46 Cal.4th 231, 240-241.) “In deciding whether a waiver is knowing . . ., we
examine the record as a whole to see whether the defendant actually understood the
consequences and import of the decision to waive counsel . . . . [Citation.] There is no
prescribed script or admonition that trial courts must use in warning a defendant of the
disadvantages of self-representation. But, in whatever way the trial court chooses to
explain the perils of self-representation, the record as a whole must establish that the
defendant understood the ‘dangers and disadvantages’ of waiving the right to counsel,
including the risks and intricacies of the case.” (People v. Mickel (2016) 2 Cal.5th 181,
211-212 (Mickel).)
17
One of the risks presented by a case is the possible penalty. (See People v. Riggs
(2008) 44 Cal.4th 248, 278 [“[T]he record shows defendant understood the possibility
of a penalty phase of the trial that might result in a sentence of death. Accordingly, we
conclude defendant adequately was made aware of the ‘ “disadvantages of self-
representation, including the risks and complexities of the particular case,” ’ and that he
made his choice to waive counsel with ‘ “ ‘eyes open.’ ” ’ ”]; see also People v.
Frederickson (2020) 8 Cal.5th 963, 1004 [“During the oral colloquy, defendant affirmed
his awareness that he faced ‘murder with special circumstances and [that] the maximum
term is the death penalty.’ [¶] . . . The court’s inquiry was sufficient”]; see also People
v. Noriega (1997) 59 Cal.App.4th 311, 319 [“The trial court gave no specific warnings
or advisements regarding the risks and dangers of self-representation. The court did not
inquire whether appellant understood . . . the potential penal consequences if he lost at
trial”])
Because a defendant needs to know the risks of self-representation, the Supreme
Court advised: “While many defendants will know the potential sentences they face
while waiving representation, it is valuable for trial courts—as a routine practice—to
orally review during a Faretta colloquy the potential sentence a defendant faces.”
(Mickel, supra, 2 Cal.5th at p. 212.)
This court has also advised that, during the Faretta colloquy, trial courts should
discuss with defendants “possible punishments” because such an advisements “will
serve to point up to [a] defendant just what he is getting himself into and establish
18
beyond question that ‘ “he knows what he is doing and his choice is made with eyes
open.” ’ ” (People v. Lopez (1977) 71 Cal.App.3d 568, 573.)
“ ‘A defendant may challenge the grant of a motion for self-representation on the
basis the record fails to show the defendant was made aware of the risks of self-
representation.’ ” (People v. Sullivan (2007) 151 Cal.App.4th 524, 546-547 (Sullivan).)
“ ‘The burden is on the defendant to demonstrate he did not knowingly and intelligently
waive his right to counsel.’ [Citations.] On appeal, the courts ‘review the entire
record—including proceedings after the purported invocation of the right of self-
representation—and determine de novo whether the defendant’s invocation was
knowing and voluntary.’ ” (Id. at p. 547.) The “knowing” portion of “knowing and
voluntary” means “ ‘the defendant must “actually . . . understand the significance and
consequences” of the decision.’ ” (Id. at p. 545.)
Here, the record demonstrates that defendant did not understand the
consequences of his decision. The trial court told defendant that the FAI added a single
strike, which meant defendant’s sentence would be doubled. Defendant told the court
that he believed he was facing “two or four years” in prison in this case. The prosecutor
incorrectly represented that the upper term sentence would be four years, doubled to
eight years. Defendant then said he would proceed without counsel.
When the trial court mentioned arraigning defendant on the FAI, the trial court
asked, “[I]s the only thing that was added the strike prior?” The prosecutor replied,
“Yes, Your Honor.” After that false representation, defendant signed a petition for self-
representation.
19
The trial court then arraigned defendant on the FAI. As the court went through
the FAI with defendant the court recognized that two prior attempted murders were
alleged. The court said, “one is alleged as a serious prior” and the second was “a strike
prior,” which “would double your sentence.”
When explaining the prior serious felony allegation (§ 667, subd. (a)), the court
did not mention that it would add a consecutive five-year term to defendant’s prison
sentence. Rather, the trial court said that the prior would cause defendant to not be
“eligible for probation and things like that.”
When the trial court explained the prior strike, it said, “Also, you would now
have two strikes. And if you commit a third strike, you could be looking at 25 to life
after—if you are convicted in this case.” Thus, the court told defendant that if he were
convicted in the instant case, he would have two strikes, so “if [defendant] commit[ted]
a third strike” then he would be subject to a sentence of 25 years to life in the next case.
At the February 22, 2018, hearing, there was no indication that defendant was
facing a sentence of 30 years to life. To the contrary, the trial court and the prosecutor
told defendant that the FAI added a single strike and that he was facing a maximum
sentence of eight years.
We now turn to the FAI. At the February 22, 2018 hearing, defendant said he
had “just been served” with the FAI. The FAI alleged two prior strike convictions and a
prior serious felony conviction. The FAI also cited the statute for a sentence of 25 years
to life. (§ 667, subd. (e)(2)(A).) We examined the record to determine if defendant
20
researched the sentencing statute cited in the FAI and found no indication that defendant
researched the statute.
Defendant told the trial court at the arraignment on the FAI that he was housed in
an administrative segregation unit in the jail, which meant his legal research
opportunities were “very limited.” The trial court explained that inmates in
administrative segregation have fewer legal research opportunities because they “have
to be separated from everybody.” Defendant said he had not been given an opportunity
for legal research since “last Wednesday,” and that statement was made on a Thursday. 4
Thus, the record indicates that defendant had legal research opportunities less than once
per week. The trial court said to defendant, “[Y]ou would be able to look up[,]
hopefully by Monday[,] what it means to add a strike to your Information. But just in
general terms, it doubles the exposure you have.”
Thus, while the FAI provided a citation that defendant could research to learn
that the trial court and the prosecutor had misinformed him, there were two problems.
First, the trial court suggested that defendant research “what it means to add a strike.”
Thus, the research topic suggested by the court was incorrect, because two strike priors
were alleged, not just one. Second, defendant had limited legal research opportunities,
and given the trial court’s and the prosecutor’s assurances that defendant was facing
only eight years in prison, it seems unlikely that defendant would have used his limited
research time on the topic of sentencing.
4 We take judicial notice of the fact that February 22, 2018, was a Thursday.
(Evid. Code, § 451, subd. (f).)
21
Another aspect of the FAI is that it plainly alleged two prior strikes. We
considered that defendant saw the two prior strike allegations. However, there are two
problems with that as well. The first problem is that it appears neither the prosecutor
nor the trial judge understood the allegations in the FAI. It would be unfair to hold
defendant to a higher standard than the trial judge and the prosecutor. The second
problem is that, when the trial court arraigned defendant on the FAI, it said that one of
the priors was being used to deny defendant probation and the second prior was being
used as a strike to double defendant’s sentence. So, to the extent defendant saw the two
prior conviction allegations, the trial court explained them in such a way that defendant
believed he was facing a maximum sentence of eight years.
At the start and the close of the bifurcated trial on the prior conviction
allegations, the trial court said that the two prior convictions were both strike
convictions. However, given that the trial court had explained that one conviction was
being used to deny defendant probation, and the other conviction was being used to
double defendant’s sentence, defendant would have little reason to conclude that he was
facing a sentence of 30 years to life.
At the June 22, 2018, hearing concerning whether defendant’s sentencing would
trail behind the death penalty case, the prosecutor said, “[I]t’s a three strikes case, so the
Court’s required to sentence him to 25 to life anyway on this case.” That was the first
time a clear statement was made that the instant case involved a maximum sentence
close to 30 years to life. Defendant responded by requesting a continuance to speak
with the attorney in his death penalty case because the prosecutor said that defendant
22
“could be subject to a life sentence” in the instant case. In defendant’s September 26,
2018, motion for counsel to be appointed, he wrote that “the People on behalf of Ms.
Garcia [sic] stated that the max was 8 years. [¶] However, the People have elected to
seek a 25-life sentence due to defendant’s potential eligibility as a third strike
candidate.”
We find the foregoing portion of the record particularly telling in that it reveals
defendant’s understanding that the prosecutor elected to seek an eight-year sentence but
then changed her mind and decided to seek a sentence of 25 years to life. That means
that when defendant was self-represented during the jury trial and bifurcated court trial,
he believed the prosecutor had chosen to seek an eight-year sentence—not 30 years to
life.
In sum, the trial court and the prosecutor affirmatively misinformed defendant
that he was facing a maximum sentence of eight years; neither the prosecutor nor the
trial court understood the prior conviction allegations in the FAI, so it would be difficult
to conclude defendant understood the allegations; defendant had limited legal research
opportunities in order to discover that he had been misinformed; and the record
indicates defendant held the belief that the prosecutor had decided to seek an eight-year
prison sentence. Thus, the record, as a whole, indicates that defendant thought he was
facing an eight-year prison term when he waived his right to counsel, which means
defendant did not make a knowing waiver of counsel. (Mickel, supra, 2 Cal.5th at p.
212 [“In deciding whether a waiver is knowing . . . , we examine the record as a whole
to see whether the defendant actually understood the consequences and import of the
23
decision to waive counsel.”]; Sullivan, supra, 151 Cal.App.4th at p. 545 [“knowing”
means a defendant actually understands the consequences of the decision to waive
counsel].)
The People assert the trial court did not misinform defendant because the trial
court warned it was unfamiliar with defendant’s criminal history. We find the People’s
argument unpersuasive due, in part, to the following exchange in the trial court:
“The Court: Okay. And is it still your choice to go forward pro per in this trial?
“Defendant Venegas: At this point, yes. I have just been served an amended
Information.
“The Court: All it did is add a strike. It added a strike.”
The trial court was the first to offer the incorrect information about the FAI
adding a single strike. If the trial court were unfamiliar with the FAI and defendant’s
criminal history, then the trial court should have said it could not advise defendant
regarding the possible maximum sentencing exposure. By stating defendant’s exposure
without any such qualification, the court suggested that it knew enough about the case
to do so.
Next, the People assert the trial court gave defendant accurate sentencing
information. The People point to the following portion of the trial court’s comments:
“Okay. So then there’s these attempted murders. And it’s—one is alleged as a serious
prior. That has to do with the sentencing, whether or not you’re eligible for probation
and things like that. And then there’s a strike prior, which is using the same case
because it was two or more of those serious and violent felonies, which is what I told
24
you before. Basically it would double your sentence. [¶] Also, you would now have
two strikes. And if you commit a third strike, you could be looking at 25 to life after—
if you are convicted in this case. Do you understand that?”
In the People’s argument they emphasize the trial court’s mention of “two
priors.” The trial court’s mention of two priors was not helpful because the court said
one of the priors was being used as a prior serious felony (§ 667, subd. (a)) and the
second was being used as a strike. Thus, the trial court communicated that this was a
second strike case. Reading the trial court’s statement as a whole, it cannot reasonably
be interpreted as a clear statement of defendant’s exposure.
In the People’s argument they italicize the trial court’s words “if you are
convicted in this case.” The People assert that the trial court informed defendant he
“faced a potential sentence of 25 years to life.” The People are taking the trial court’s
words out of context. The trial court told defendant that, in this case, his sentence
would be doubled, but if defendant were convicted in this case, i.e., creating a second
strike, and then convicted in the future of a third strike, then he would face a sentence of
25 years to life. At no point during the arraignment on the FAI did the trial court inform
defendant that he was facing a sentence of 30 years to life in this case.
Next, the People assert that, at the start of the bifurcated court trial on the prior
conviction allegations the trial court correctly informed defendant that two prior strikes
were alleged in the instant case. The trial court said, “And just so the record is clear, I
have a copy of the First Amended Information, which I assume is what we’re going off
of, and that—there is an allegation of a serious prior offense being the attempted
25
murder, which it says was 8/21/2000 in Los Angeles, and they’re both strikes, of course.
And then they’re alleged as a first prior and second prior separately.”
There are at least two problems with relying on the foregoing comment by the
trial court. First and foremost, the trial court did not clarify that the sentence defendant
was facing was 30 years to life. Second, if one were listening to the trial court’s
comments, without the benefit of rereading the trial court’s comments in a transcript,
one could have reasonably understood the comments as describing two—not three—
prior conviction allegations, which would be (1) one prior serious felony conviction
(§ 667, subd. (a)), and (2) one prior strike conviction. As discussed ante, the trial court
told defendant that those allegations meant defendant would be denied probation and
sentenced, at most, to eight years in prison.
Next, the People assert that providing defendant with a copy of the FAI cured
any misstatements by the trial court. The standard for a knowing waiver is what a
defendant actually understood (Mickel, supra, 2 Cal.5th at p. 212; Sullivan, supra, 151
Cal.App.4th at p. 545; People v. Best (2020) 49 Cal.App.5th 747, 759), i.e., a
defendant’s subjective understanding (Kidd v. Lemke (2013 7th Cir.) 734 F.3d 696,
705). The standard is not what a defendant could have known or should have known.
Defendant was given a copy of the FAI, but he was affirmatively misinformed by the
prosecutor and the trial court regarding the sentencing consequences of the allegations
in the FAI. Moreover, after the trial, defendant continued to express a belief that he was
facing a maximum sentence of eight years. Accordingly, the fact that defendant was
26
given a copy of the FAI does not indicate that defendant actually understood he had
been misinformed about the maximum eight-year sentence.
The People assert the FAI “clarified [defendant’s] actual sentence exposure.”
The People are correct that the FAI alleged a three strikes case and cited to the statute
for a three strikes sentence. The flaw is that, because the prosecutor said the maximum
sentence would be eight years, defendant believed the prosecutor had elected to seek an
eight-year sentence. In the motion for appointment of counsel, defendant wrote, “[T]he
People on behalf of Ms. Garcia [sic] stated that the max was 8 years. [¶] However, the
People have elected to seek a 25-life sentence due to defendant’s potential eligibility as
a third strike candidate.” The foregoing indicates that, throughout the trial, defendant’s
belief was that the People had chosen to seek only an eight-year prison sentence. While
defendant could have known or should have known that he was facing a sentence of 30
years to life based upon the FAI, the record indicates that defendant did not actually
know he was facing a sentence of 30 years to life, which means defendant’s waiver of
counsel was not knowing.
The People assert defendant “elected to represent himself and validly waived his
right to counsel before the trial court informed him of his potential sentence.” There are
two flaws in this assertion. The first flaw is that when defendant waived his right to
counsel prior to the FAI, no prior convictions were alleged against him, and he believed
he was facing a maximum sentence of four years. So, during those prior waivers
defendant did not have an understanding of risks that were posed once the FAI was
filed.
27
The second flaw is that the trial court needed to obtain a waiver of counsel from
defendant during the arraignment on the FAI, and that waiver occurred after the trial
court and the prosecutor told defendant that he was facing a maximum of eight years in
prison. “[T]he governing statutes provided (and continue to provide) that a defendant in
felony proceedings shall be advised of the right to counsel on at least two distinct
occasions prior to trial: first, when the defendant is brought before a magistrate and
advised of the filing of the complaint (§ 859), and second, after the preliminary
examination, when the defendant is arraigned in superior court on the information
(§ 987).” (People v. Crayton (2002) 28 Cal.4th 346, 361 (Crayton); see also Sullivan,
supra, 151 Cal.App.4th at pp. 550-551.)
In the instant case, during the arraignment on the complaint, defendant was not
advised of the risks involved in this case. During the arraignment on the original
information, the trial court failed to raise the issue of self-representation. (§ 987, subd.
(a).) Thus, during the arraignment on the FAI, which added prior conviction
allegations, it was imperative for the trial court to accurately advise defendant of the
risks of self-representation. (§ 987, subd. (a); Crayton, supra, 28 Cal.4th at p. 361.)
Because defendant’s prior waivers do not indicate that he waived counsel with an
understanding that he could be sentenced to 30 years to life in prison, the sufficiency of
the waiver taken during the arraignment on the FAI was critical.
The People assert that there is a split of authority concerning whether trial courts
must inform self-represented defendants of the maximum sentencing exposure
presented in a case. (People v. Jackio (2015) 236 Cal.App.4th 445, 450 [“the court need
28
notify the defendant only of the maximum penalty he faces”]; contra People v. Harbolt
(1988) 206 Cal.App.3d 140, 149-150 [Faretta does not “mandate an advisement on
possible penal consequences”]; see also People v. Ruffin (2017) 12 Cal.App.5th 536,
544 [“there is a split of authority in California as to whether the court must also
specifically advise the defendant of the maximum penal consequences of conviction”].)
The People urge us to follow the cases that do not require trial courts to inform
defendants of the maximum sentencing exposure.
We need not decide whether trial courts are required to inform defendants of
their maximum sentencing exposure because it is undisputed that trial courts are
required to provide accurate advisements to a defendant. (In re Moser (1993) 6 Cal.4th
342, 352; People v. Goodwillie (2007) 147 Cal.App.4th 695, 734-735.) In other words,
if it were optional to provide information about sentencing, then trial courts that choose
to provide such information must still do so accurately. (See People v. Castillo (1997)
16 Cal.4th 1009, 1015 [“Even if the court has no sua sponte duty to instruct on a
particular legal point, when it does choose to instruct, it must do so correctly”]; see also
People v. Barnum (2003) 29 Cal.4th 1210, 1226 [“[A] trial court is not required to
advise a self-represented defendant of the privilege against compelled self-
incrimination. In any given case, the court remains free to provide such an advisement,
so long as its words do not stray from neutrality toward favoring any one option over
another. A trial court of course must proceed carefully in providing an advisement”].)
Accordingly, we do not address the split of authority concerning whether trial courts are
required to advise self-represented defendants of their maximum sentencing exposure.
29
In sum, we conclude defendant’s waiver of counsel was made with the
misunderstanding that he was facing eight years in prison, rather than 30 years to life,
which means the “knowing” element of the waiver was not meant. We turn to the issue
of prejudice.
B. PREJUDICE
“Although the denial of a proper request for self-representation has been
determined to be structural error [citation], neither the federal Supreme Court nor the
state Supreme Court has decided whether the granting of a request for self-
representation based on inadequate Faretta admonishment compels the same result.
[Citations.] Our state courts that have addressed the question have applied the
Chapman[5 ] harmless error standard. [Citation.] Although two California courts have
applied automatic reversal following errors in allowing self-representation, the cases are
readily distinguishable. In both instances the defendants received no self-representation
warnings at all before being allowed to proceed without counsel.” (People v. Bush
(2017) 7 Cal.App.5th 457, 475; see also People v. Burgener, supra, 46 Cal.4th at p.
244.)
In Crayton, our Supreme Court concluded that the requirement to readvise a
defendant of the right to counsel at the arraignment on the information (§ 987) is a
statutory “prophylactic safeguard.” The high court concluded that the “failure to obtain
a new and clear indication that the defendant desired to represent himself or herself at
5 Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).
30
trial” was subject to harmless error review under the standard of People v. Watson
(1956) 46 Cal.2d 818. (Crayton, supra, 28 Cal.4th at pp. 364-365.)
Crayton is distinguishable because the record of defendant’s arraignment on the
complaint does not include any advisements of the risks of self-representation prior to
taking defendant’s waiver of counsel, and, at the arraignment on the original
information, no advisements were given and no waiver was taken. Thus, the
arraignment on the FAI is the first instance in the record in which advisements were
given by the trial court, i.e., it was the first time defendant was informed of the risks and
consequences associated with the instant case. As a result, we do not view the
advisements and waiver of counsel taken at the arraignment on the FAI to be a second
or “prophylactic” waiver that was only necessary under state law. Therefore, we apply
the Chapman standard. (People v. Bush, supra, 7 Cal.App.5th at p. 477.)
Under the Chapman standard, “[B]efore a federal constitutional error can be held
harmless, the court must be able to declare a belief that [the error] was harmless beyond
a reasonable doubt.” (Chapman, supra, 386 U.S. at p. 24.) We examine whether
defendant would not have waived counsel “had the trial court given a proper
advisement.” (In re Moser, supra, 6 Cal.4th at p. 352; Berman v. Cate (2010) 187
Cal.App.4th 885, 900.)
At the hearing on June 22, 2018, the prosecutor said, “[T]he Court’s required to
sentence him to 25 to life anyway on this case.” Defendant then requested a
continuance so he could speak with an attorney because the prosecutor had announced
that defendant “could be subject to a life sentence.” On September 26, 2018, defendant
31
moved for counsel to be appointed. In the motion, defendant asserted, “Prior to trial,
the court inquired about defendant’s potential exposure on the case cited above, the
People on behalf of Ms. Garcia [sic] stated that the max was 8 years. [¶] However, the
People have elected to seek a 25-life sentence due to defendant’s potential eligibility as
a third strike candidate.” Defendant asserted the trial court could appoint “ ‘counsel to
investigate possible grounds for a motion for a new trial.’ ” At the sentencing hearing,
defendant was represented by counsel.
Thus, the record reflects that as soon as defendant understood that this case
involved a potential life sentence, he wanted an attorney and obtained an attorney.
Therefore, had the trial court correctly informed defendant, at the arraignment on the
FAI, that this case involved a maximum sentence of 30 years to life, defendant likely
would not have waived counsel. Accordingly, the court’s error was not harmless
beyond a reasonable doubt.
The People assert the trial court’s misadvisement did not cause defendant to
waive counsel because defendant had waived counsel prior to the trial court stating that
the maximum sentence would be eight years. At the arraignment on the complaint, the
trial court did not admonish defendant regarding the risks of self-representation in this
case.
At the hearing on February 22, 2018, the trial court explained that, if defendant
proceeded as self-represented, then defendant would be “expected to know the law and
the rules of court” and the trial court would not be able to help defendant “during the
course of the trial.” The court also told defendant that the prosecutor in the case “is a
32
very experienced District Attorney. And she’s done a lot of trials.” Then the following
exchange occurred:
“The Court: Okay. And is it still your choice to go forward pro per in this trial?
“Defendant Venegas: At this point, yes. I have just been served an amended
Information.
“The Court: All it did is add a strike. It added a strike.
“Defendant Venegas: Yes.”
The trial court proceeded to discuss defendant’s maximum sentencing exposure
in the case. After the discussion, the following exchange occurred:
“The Court: Okay. All right. And, [defendant], once I’ve given you all that
information, I’m very willing to go forward with you in pro per status if that’s what you
want to do.
“Defendant Venegas: Yes, Your Honor.
“The Court: You do?
“Defendant Venegas: I do, Your Honor.”
We read the record as the trial court informing defendant generally of the risks of
self-representation, checking if defendant was still interested in self-representation
given that information, and then, because defendant was still interested, advising
defendant of the specific sentencing risks associated with this case, and then finally
taking defendant’s waiver. To the extent the People are reading the record as the trial
court taking two waivers in succession, such a reading is not reasonable. If the trial
court had accepted defendant’s waiver of counsel prior to misinforming him about the
33
maximum eight-year prison sentence, then the court would not have proceeded to
discuss the issue with defendant and take the waiver again. Thus, as we read the record,
(1) no advisements about the risk of the case were given at the arraignment on the
complaint, (2) no advisements about self-representation were given at the arraignment
on the original information, and (3) misinformation about the maximum penalty was
given at the arraignment on the FAI.
The People assert that, because defendant was facing a death penalty case,
receiving a sentence of 30 years to life “may not have been as concerning to him as it
would be for someone who did not face a potential death sentence,” and thus defendant
would have waived counsel if he had received a correct advisement. The People’s
argument ignores the record. When defendant finally understood that this case involved
a possible life sentence, he requested counsel and had counsel at his sentencing hearing.
Defendant’s request for counsel in this case occurred prior to the jury fixing the penalty
in the death penalty case. Therefore, the record indicates that defendant would have
wanted counsel had he known he was facing a sentence of 30 years to life.
The People assert that, at the start of the court trial on the prior convictions, the
trial court said there were two prior strike convictions, and defendant did not, at that
point, request counsel, which indicates defendant would have waived counsel if he had
been informed of the correct maximum sentence. At the start of the court trial, the trial
court did not indicate that defendant was facing a sentence of 30 years to life.
Defendant understood that there was to be a trial on the two prior attempted murder
convictions, but he had been affirmatively misinformed that the two prior convictions
34
meant (1) he would be denied probation, and (2) his sentence could be doubled to eight
years. Thus, the fact that defendant was aware of the allegations does not mean he
understood that he was facing a potential life sentence.
The People assert that if defendant had counsel at trial, then the result would
have been the same because the evidence of defendant’s guilt was “insurmountable.”
Our prejudice inquiry does not concern whether defendant might have prevailed on the
charges if he had counsel, rather, our inquiry is whether defendant “ ‘would have
accepted the appointment of counsel had the court’ ” properly advised defendant.
(Sullivan, supra, 151 Cal.App.4th at p. 551; see also People v. Noriega, supra, 59
Cal.App.4th at p. 321 [“whether appellant would have decided in favor of professional
representation had he been fully informed of the dangers and risks of his decision to
proceed in propria persona”].)
We do not delve into whether a different outcome may have occurred at trial if
defendant had counsel because if defendant had trial counsel, then counsel may have
presented different evidence and approached the case with an entirely different strategy.
In other words, we do not know and cannot speculate what difference counsel may have
made either procedurally or in terms of the evidence presented. As a result, prejudice is
sufficiently demonstrated by the portions of the record indicating defendant would not
have waived counsel had he known that he was facing a 30 year to life sentence. (See
Cordova v. Baca (2003 9th Cir.) 346 F.3d 924, 930 [“What matters is that the defendant
was put on trial without a lawyer though the Constitution guarantees him that right.
35
That is the kind of defect in the trial process the Supreme Court has told us time and
again cannot be unscrambled”].)
DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
CODRINGTON
J.
36