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The People v. Johnny Angel Hinojosa


March 1, 2011


(Super. Ct. No. LF011638A)

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

P. v. Hinojosa CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant, Johnny Angel Hinojosa, entered a plea of guilty to a charge of street terrorism (Pen. Code, 186.22, subd. (a)) after his counsel withdrew and without expressly stating in open court that he did not wish to be represented by counsel, as required by Penal Code section 1018.*fn1 His subsequent motion to withdraw his plea on that ground (among others) was denied.

He contends, and the People correctly concede, that the trial court did not comply with section 1018 before it allowed him to plead guilty to a felony and therefore defendant's motion to withdraw the plea should have been granted. We shall remand the matter so as to permit defendant to withdraw his plea.


There was no preliminary hearing, trial, or probation report from which to summarize the underlying facts of defendant's offense. We note only that defendant and his girlfriend were charged with taking a Jeep Cherokee vehicle without the owner's consent (Veh. Code, § 10851, subd. (a)--count 1) and with receiving the Jeep as stolen property (§ 496d, subd. (a)--count 2). The complaint also charged that, in connection with receiving the stolen Jeep, defendant was willfully and actively participating in a criminal street gang (§ 186.22, subd, (a)--count 3.)

On the date scheduled for the preliminary hearing, defendant appeared with his then counsel, who announced that "over the advice of counsel," defendant wished to enter a guilty plea. The prosecutor described "several options" offered to defendant: he could plead guilty either to count 1 or 2 (neither of which are "strikes") and receive one year in jail, or he could plead guilty to count 3 (a strike) and receive a four-month sentence. Defendant's interest in entering a guilty plea was contingent on his girlfriend also receiving an acceptable plea offer; the prosecutor said that if defendant were "willing to take the fall, for lack of a better word, then [his co-defendant girlfriend] would be allowed to simply enter a plea" and receive deferred entry of judgment.

Returning after defendant's girlfriend resolved her charges for a guilty or no contest plea to a misdemeanor, defense counsel told the court he had discussed the plea offers with defendant, and "[a]against my counsel, [defendant] does wish to accept one of those offers. I did advise him of his Constitutional Rights, and would ask to be relieved as counsel.

"The Court: Okay. Mr. Hinojosa, is that what you want to do, you want to enter a plea today?

"The Defendant: Yes.

"The Court: And take the offer by the DA?

"The Defendant: Yes.

"The Court: Your attorney is asking to be relieved, are you objecting to that?

"The Defendant: Yeah.

"The Court: You are or aren't going to object?

"The Defendant: I don't know what you're trying to say. Like, he wants to relieve himself and I'm saying, yeah, it's fine.

"The Court: Okay. Is that what you want to do?

"The Defendant: Yes, sir.

"The Court: Which of the charges were you going to enter a plea to?

"The Defendant: Four months with a strike.

"The Court: Four months as a strike?

"The Defendant: Four months as a strike.

"The Court: You understand that is the gang affiliation, street terrorism that you're pleading to?

"The Defendant: Yeah.

"[¶] . . . [¶]

"The Court: We need to go over those same rights. [¶] I'm sure you heard me with [co-defendant], but I have to leave the same paper trail behind us. [¶] You have the following rights: Since this is a felony, you have a right to a preliminary hearing to see if there's enough evidence to go on to a full trial. [¶] You have the right, if that happened, to a speedy and public trial by jury. [¶] You have the right to be represented by an attorney at all stages. And if you can't afford one, an attorney will be provided at no cost. [¶] You have the right to get subpoenas issued to bring people here if you think their testimony might be helpful. You have the right to see, confront and cross-examine any witness the Prosecution puts on. [¶] You have the right to remain silent. You can't be forced to testify. Your silence can't [be] used as evidence of your guilt, but you would be testifying against yourself if you entered these pleas. [¶] Do you understand these rights?

"The Defendant: Yes, sir.

"The Court: Do you give up those rights?

"The Defendant: Yes, sir.

"The Court: Have you had enough time to think about this?

"The Defendant: Yes."


A guilty plea to a felony not punishable by death "can only be received from a defendant appearing without counsel if the following conditions are met: (1) The court fully informs the defendant of his or her right to counsel; (2) the court finds that the defendant understands his or her right to counsel and freely waives it; and (3) the defendant expressly states in open court that he or she does not wish to be represented by counsel." (4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings, § 263, p. 473; see Pen. Code, § 1018.)*fn2

Less than six months after he pled guilty, defendant moved to withdraw his plea, arguing that good cause existed to withdraw the plea because the trial court failed to comply with section 1018, and the factual basis for the guilty plea was inadequate. The motion was denied.

At no point before taking defendant's plea did the trial court make a finding that defendant understood and freely waived his right to counsel, nor did defendant expressly state that he did not wish to be represented by counsel, as required by section 1018.

Although there is no specific formula for advising a defendant of his or her rights, the record, in light of the totality of circumstances, must "'show[] by direct evidence that the accused was fully aware of his rights.' [Citations.]" (People v. Murillo (1995) 39 Cal.App.4th 1298, 1304.) "Certainly, it is best for the trial court to ensure that there is an adequate record for appeal and protect the validity of guilty pleas by making its advisements, defendant's understanding of his rights, and waivers as complete and explicit as possible. Indeed, our Supreme Court established a judicial rule requiring explicit admonitions and waivers." (Murillo, supra, 39 Cal.App.4th at p. 1304, citing People. v. Howard (1992) 1 Cal.4th 1132, 1178-1179.)

The record here shows defendant acceded to his appointed counsel's request to be relieved, but it does not show defendant was aware he was entitled to the appointment of other counsel after his appointed defense counsel sought to be relieved, nor does it show that defendant understood the dangers and pitfalls of self-representation. (People v. Pinholster (1992) 1 Cal.4th 865, 928-929; see Faretta v. California (1975) 422 U.S. 806, 835 [45 L.Ed.2d 562, 581-582].) And, in particular, there was no express statement by defendant in open court that he wished to proceed without the services of counsel, despite the express requirement of section 1018.

Under these circumstances, it appears defendant's guilty plea did not comply with section 1018. Accordingly, his motion to withdraw the plea to the charge of street terrorism should have been granted.


The matter is remanded to the trial court to allow defendant to withdraw his guilty plea to the charge of street terrorism, if he chooses to do so.

We concur:



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