Filed 11/15/21 P. v. Hooker CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B307450
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA479490
v.
EZRA HOOKER, Sr.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael D. Abzug, Judge. Reversed.
James Koester, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and J. Michael
Lehmann, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
A jury convicted defendant and appellant Ezra Hooker of
assault with a firearm, unlawful possession of ammunition, felon
in possession of a firearm, and elder abuse, and found firearm
and prior conviction allegations true. The trial court sentenced
him to 23 years in state prison. On appeal, Hooker argues his
waiver of his right to counsel was not knowing and intelligent
because the trial court estimated his maximum possible sentence
at 17 years when his actual maximum possible sentence was 32
years. For the reasons discussed below, we agree. We therefore
reverse the judgment.1
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed an
information charging Hooker with assault with a firearm (Pen.
Code,2 § 245, subd. (a)(2); count one); unlawful possession of
ammunition (§ 30305, subd. (a)(1); count two); possession of a
firearm by a felon (§ 29800, subd. (a)(1); count three); and elder or
dependent adult abuse (§ 368, subd. (b)(1); count four). With
respect to counts one and four, the information alleged Hooker
personally used a firearm (§ 12022.5) and sustained a prior
serious felony conviction (§ 667, subd. (a)(1)). With respect to all
counts, the information alleged Hooker sustained a prior strike
conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and four
1 Because we reverse on this ground, we need not address
Hooker’s other contentions.
2 All further undesignated statutory references are to the
Penal Code.
2
prior convictions for which he served prison terms (§ 667.5, subd.
(b)).3
The jury found Hooker guilty on all counts and found the
firearm allegations true. In a bifurcated proceeding, the jury
found true that Hooker had sustained a prior manslaughter
conviction (§ 192, subd. (a)), which served as the basis for the
prior strike and serious felony allegations.
The trial court sentenced Hooker to 23 years in state
prison, consisting of an upper 4-year term on count 4, enhanced
to 8 years because of the prior strike, a 10-year firearm
enhancement (§ 12022.5, subd. (a)), and a 5-year prior serious
felony enhancement. The court imposed a concurrent 23-year
term on count 1 and concurrent 3-year terms on counts 2 and 3.
Hooker timely appealed.
DISCUSSION4
Hooker’s Waiver of His Right to Counsel was Not Knowing
and Intelligent
A. Relevant Proceedings
At his initial arraignment on the felony complaint, Hooker
informed Judge Teresa T. Sullivan that he wished to waive his
right to assistance of counsel and proceed in pro per. The court
advised Hooker of the charges he was facing and that there were
legal issues involved with the prior conviction allegations. The
3 The information erroneously cited section 667.6,
subdivision (b) when referencing the prior prison term
allegations.
4 We omit discussion of the facts because they are not
relevant to the dispositive issue in this appeal.
3
court informed Hooker that he was looking at “a lot of time on
this,” “maybe 17 years if things go bad.” 5 The court advised
Hooker that it was almost always unwise for a defendant to
represent himself, that he would not be afforded any special
assistance by the court, and that he would be held to the same
standards of conduct as an attorney. It also cautioned Hooker
that he would not be able to claim ineffective assistance of
counsel on appeal for any mistakes he makes during the
proceedings. The court asked Hooker if he understood the
potential consequences of proceeding pro per, and Hooker replied
that he did. The court then reiterated the potential dangers of
proceeding pro per and its recommendation that Hooker avail
himself of counsel. When Hooker indicated he still wished to
proceed in pro per, the court directed him to an Advisement and
Waiver of Right to Counsel Form. After Hooker stated he had
initialed the boxes on the form and signed the last page, the court
announced it was satisfied he had knowingly, understandably,
and intelligently executed the waiver, had freely and voluntarily
waived his right to counsel, and was competent to represent
himself.
Hooker represented himself at the preliminary hearing
where he was held to answer on all the charged offenses and the
special allegations.
Hooker subsequently appeared without counsel at the
arraignment on the felony information before Judge Michael D.
Abzug. The court noted Hooker’s pro per status. The court
reminded Hooker that he had a constitutional right to counsel
and appointed stand-by counsel, though it did not readvise him of
5 The court underestimated Hooker’s maximum possible
sentence, which was 32 years, nearly double the court’s estimate.
4
the pitfalls of self-representation, take a renewed waiver of his
right to counsel, or advise him that his maximum possible
sentence was greater than 17 years.
Hooker went on to represent himself at trial.
B. Applicable Legal Principles
“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. [Citations.]”
(People v. Burgener (2009) 46 Cal.4th 231, 240-241 (Burgener),
citing Faretta v. California (1975) 422 U.S. 806, 835-836 [95 S.Ct.
2525, 45 L.Ed.2d 562] (Faretta).) “In order to make a valid waiver
of the right to counsel, a defendant ‘should be made aware of the
dangers and disadvantages of self-representation, so that the
record will establish that “he knows what he is doing and his
choice is made with eyes open.” [Citation.]’ [Citation.]” (People v.
Koontz (2002) 27 Cal.4th 1041, 1070 (Koontz), citing Faretta,
supra, 422 U.S. at p. 835.) “No particular form of words is
required in admonishing a defendant who seeks to waive counsel
and elect self-representation; the test is whether the record as a
whole demonstrates that the defendant understood the
disadvantages of self-representation, including the risks and
complexities of the particular case. [Citations.]” (Koontz, supra, at
p. 1070.) We review “de novo whether the defendant’s invocation
was knowing and voluntary. [Citations.]” (People v. Marshall
(1997) 15 Cal.4th 1, 24.) “‘The burden is on the defendant to
demonstrate he did not knowingly and intelligently waive his
right to counsel.’ [Citations.]” (People v. Sullivan (2007) 151
Cal.App.4th 524, 547, italics omitted (Sullivan).)
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C. Analysis
Hooker contends his waiver of the right to counsel was not
knowing and intelligent because the trial court underestimated
his potential maximum sentence. He notes that the trial court
estimated his sentence at “maybe 17 years if things go bad,”
when his maximum possible sentence was 31 years and 4
months. Hooker’s maximum possible sentence was actually 32
years. The Attorney General counters that even though the trial
court underestimated Hooker’s maximum possible sentence, his
waiver of his right to counsel was knowing and intelligent. We
agree with Hooker.
As this court previously noted in People v. Ruffin (2017) 12
Cal.App.5th 536, 544 there is a split in California authority
whether the trial court must specifically advise a defendant who
seeks to represent himself of the maximum penal consequences of
the convictions. (Compare People v. Bush (2017) 7 Cal.App.5th
457, 469-474 (Bush) [advisement of penal consequences not
required] with People v. Jackio (2015) 236 Cal.App.4th 445, 454-
455 [advisement of maximum punishment, including
enhancements, is required].) We resolve Hooker’s case without
weighing in on this split in authority. We note that the issue in
Hooker’s case is slightly different than the question on which
courts are split. Courts are split on whether a trial court has an
affirmative duty to inform a defendant of his or her maximum
sentence. The question here is whether a trial court that elects to
inform the defendant of the maximum sentence must do so
accurately. We conclude the answer is yes. Critically, our
Supreme Court has explained “the test is whether the record as a
whole demonstrates that the defendant understood the
disadvantages of self-representation, including the risks and
6
complexities of the particular case. [Citation.]” (Koontz, supra, 27
Cal.4th at p. 1070, italics added.) By misinforming Hooker that
his maximum possible sentence was 17 years when he actually
faced up to 32 years, the court deprived him the opportunity to
meaningfully understand one of the most crucial “risks . . . of
[his] particular case[ ]” – the risk that, if convicted, he could
spend much or all of the rest of his life in prison.6 The trial court’s
15-year underestimate of Hooker’s maximum possible sentence
was constitutional error because it fundamentally interfered with
his ability to knowingly and intelligently understand the
potential consequences of waiving his right to counsel.
“[W]hen the record demonstrates that the trial judge
neglected to advise the defendant of the dangers and
disadvantages of self-representation as required by Faretta when
the waiver is taken, but the waiver of the right to counsel was
voluntary, the courts have split on the standard of reversible
error: some have determined that the error is structural and
reversible per se; others have declared the error must be found
prejudicial under the Chapman v. California (1967) 386 U.S. 18,
24 [87 S.Ct. 824, 17 L.Ed.2d 705] [(Chapman)] test unless the
error is harmless beyond a reasonable doubt. [Citations.]”
(Sullivan, supra, 151 Cal.App.4th at p. 551, fn. 10.) Under the
Chapman standard, the burden is on the Attorney General to
6 Hooker was 52 years old when the court arraigned him on
the felony complaint, took his waiver of his right to counsel, and
advised him that he was facing 17 years in prison. Thus, the
court erroneously informed Hooker that he could be released by
his late 60’s, when he potentially could have been held until his
mid-80’s. We reject the Attorney General’s contention that this
error did not significantly underestimate Hooker’s maximum
possible sentence.
7
prove the error was harmless beyond a reasonable doubt. (See
Chapman, supra, 386 U.S. at p. 24.)
Assuming that inaccurate and misleading Faretta
advisements can be harmless in some circumstances where the
waiver of counsel is nonetheless voluntary, the Attorney General
here cannot sustain his burden of proving the error was harmless
beyond a reasonable doubt. We reject the Attorney General’s
contention that the error was harmless because the record shows
Hooker “would have exercised his right to represent himself
regardless of what the trial court had advised him regarding his
potential maximum sentence.” Although the record shows Hooker
wanted to represent himself on the court’s representation that his
maximum possible sentence was 17 years, it provides no
indication whether he would have decided to represent himself if
the court had correctly informed him that his maximum sentence
was 32 years. Nor does the record reveal whether Hooker would
have elected to represent himself if he had been told he faced a
possible sentence of 23 years, the sentence he actually received.
On this silent record, we cannot conclude the error was harmless
beyond a reasonable doubt.7
7 Because we conclude the trial court’s underestimate of
Hooker’s maximum possible sentence was prejudicial error, we
need not fully address Hooker’s contentions relating to section
987, subdivision (a), though we note the court’s failure to readvise
Hooker of the pitfalls of self-representation and take a renewed
waiver of his right to counsel at the arraignment on the felony
information was error under that statute. (See People v. Crayton
(2002) 28 Cal.4th 346, 361.)
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DISPOSITION
The judgment is reversed. The case is remanded for further
proceedings, and for the People to decide whether to retry the
case.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
COLLINS, J.
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