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The People v. Johnny Angel Hinojosa

March 1, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOHNNY ANGEL HINOJOSA, DEFENDANT AND APPELLANT.



(Super. Ct. No. LF011638A)

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

P. v. Hinojosa CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

BACKGROUND

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 ...


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