California Court of Appeal Oct 7, 2022 No. E075326Unpublished
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, 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)
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
AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant's waiver of his right to counsel was not knowing and intelligent because the trial court and prosecutor significantly misinformed him regarding his maximum sentencing exposure.
Issues
Whether a defendant's waiver of the right to counsel is knowing and intelligent when the trial court and prosecutor misinform the defendant of his maximum sentencing exposure.