Filed 6/30/22 P. v. Romero CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079291
Plaintiff and Respondent,
v. (Super. Ct. No. JCF38495)
DANIEL SOLORIO ROMERO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County,
Christopher J. Plourd, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel
Rogers, and Matthew Mulford, Deputy Attorneys General, for Plaintiff and
Respondent.
Daniel Solorio Romero1 appeals a final judgment of a joint probation
revocation hearing. On appeal, Solorio contends that there is insufficient
evidence to show that the trial court adequately warned him of the
disadvantages of self-representation such that Solorio did not knowingly and
voluntarily waive his constitutional right to appointed counsel. We conclude
that the trial court sufficiently warned Solorio of the disadvantages of self-
representation and that Solorio knowingly and voluntarily waived his right to
appointed counsel. The judgment is affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2018, Solorio pled no contest to corporal injury upon a spouse
after a prior conviction in violation of Penal Code2 section 237.5,
subdivision (a).3 The court imposed a suspended sentence of four years in
state prison and placed him on probation with one year of credit for time
served.
In September 2018, December 2018, July 2019, and January 2020,
prosecutors filed four separate petitions to revoke Solorio’s probation. Solorio
admitted to each violation, and the court reinstated his probation each time.
In October 2020, prosecutors filed a fifth revocation petition and later
amended the petition to include an allegation that Solorio failed to report a
November 2020 arrest for possessing unlawful ammunition. Prosecutors
1 Appellant requests the court refer to him as Solorio, and the briefs refer
to him as Solorio. For consistency and clarity, we likewise refer to Appellant
as Solorio.
2 Further section references are to the Penal Code.
3 The underlying facts of the conviction are not relevant to this appeal.
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separately charged Solorio for the unlawful possession of ammunition in
violation of section 30305, subdivision (a)(1). The probation revocation
hearing, case No. JCF38495 (the “probation case”), the preliminary hearing
on the ammunition charge, case No. JCF004459 (the “ammunition case”), and
a separate felony case against Solorio, case No. JCF003657 (the “felony
case”), proceeded together.
Prior to the joint hearing, Solorio claimed that one of his attorneys had
a conflict of interest and twice requested a Marsden4 motion. The court held
two Marsden hearings and twice denied the motion.
On June 23, 2021, after the court denied Solorio’s second Marsden
motion, Solorio asked to represent himself “on all cases.” The court initially
denied the Faretta5 request for untimeliness. However, the court
reconsidered Solorio’s Faretta request when it postponed the preliminary
hearing due to the absence of subpoenaed witnesses. The court asked Solorio
if he would be ready for a preliminary hearing in two days, and Solorio
replied, “If I’m representing myself, yes.” The court told Solorio’s lawyers, “If
you can get him to fill out a Faretta waiver, we’ll go from there.”
At the next hearing on June 25, 2021, the court received a single
Faretta waiver from Solorio, and the court emphasized it “applies to both
cases.” The court again asked if Solorio wanted to represent himself, and he
informed the court that his family was helping him hire an attorney. When
asked if he would prefer for an attorney to represent him, he replied, “If
there’s no choice, I will represent myself, but as of now I really would like a
day or two to get myself a private lawyer.” Solorio waived his right to a
4 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
5 Faretta v. California (1975) 422 U.S. 806 (Faretta).
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speedy preliminary hearing to have time to hire counsel or alternatively
proceed with the Faretta waiver. The court told Solorio, “I’m going to give
you the Faretta forms right now, but hold on to them. Don’t get rid of them.
If you need them again, we’re going to need to know that.”6
On July 9, 2021, the court held the joint hearing but trailed the felony
case. Solorio wanted to renew his Faretta motion. The court stated, “Mr.
Solorio, you know your rights regarding Faretta. It’s not advisable, but if you
want to represent yourself, you have that right.” The court asked Solorio if
he still wanted to represent himself, and Solorio said that he did.
The court granted the request. It asked Solorio if he understood that
he was representing himself during the preliminary hearing and the
probation revocation hearing. Solorio replied, “So does that go together with
the violation or not?” The court explained that there were two separate cases
covered by a single hearing, but that Solorio did not have to represent
himself, “in both of them, or any of them.” Solorio replied, “I’ll do it on my
own, Your Honor.” The court emphasized that it did not advise self-
representation and that it was “an unwise decision.” Solorio reiterated that
he would represent himself in both cases. The court asked Solorio, “Do you
have any questions about your Faretta rights that we went over in that other
[felony] case? They are the same rights as these two cases[, the probation
case and the ammunition case].” Solorio said he was ready to proceed. When
Solorio asked to call a witness, the court warned Solorio that one of the risks
of self-representation and calling a witness that his former counsel did not
subpoena is that Solorio “may not fully appreciate or understand the pitfalls
of calling a witness.”
6 The Faretta form is not in the record. The clerk at the Imperial County
Superior Court clerk’s office filed a declaration that she could not find it.
4
At the conclusion of the hearing, the court found probable cause for the
ammunition charges and found Solorio violated four of five probation
violation allegations. As a result, the court revoked Solorio’s probation.
Later, Solorio asked the court to reinstate the public defender, and the court
granted his request.
At sentencing for the probation violation, the court denied Solorio’s
request for probation, waived formal arraignment for sentencing, and
sentenced Solorio to state prison for four years. Additionally, the court
ordered Solorio to pay restitution of $300. The prosecutor dismissed the
ammunition case and the felony case.
Solorio timely appealed.
II.
DISCUSSION
This appeal concerns whether, based on the totality of the record,
Solorio knowingly and voluntarily waived his Sixth Amendment right to
counsel following sufficient warnings by the trial court about the
disadvantages of self-representation. Solorio contends that the trial court
omitted various warnings of self-representation typically associated with a
valid waiver of appointed counsel such that Solorio did not knowingly and
voluntarily waive his right to counsel. Thus, the trial court erred in granting
Solorio’s waiver. We disagree.
When determining whether a defendant validly waived a right to
counsel, we “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.”
(People v. Marshall (1977) 15 Cal.4th 1, 24; People v. Burgener (2009) 46
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Cal.4th 231, 241 (Burgener); see also People v. Bloom (1989) 48 Cal.3d 1194,
1224 (Bloom).)
A. Legal Principles
In Faretta, the United States Supreme Court recognized a defendant’s
right to waive appointed counsel in favor of self-representation as
constitutionally protected by the Sixth Amendment. (Faretta, supra, 422
U.S. at p. 818.) To obtain a valid Faretta waiver, a competent defendant
must knowingly, voluntarily, timely, and unequivocally waive his or her right
to counsel. (Id. at p. 835; Godinez v. Moran (1993) 509 U.S. 389, 396;
People v. Lynch (2010) 50 Cal.4th 693, 721, 722.) Thus, a defendant waiving
the right to counsel “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.’ ” (Faretta, at p. 835.) The
knowing and voluntary requirement ensures “the defendant actually does
understand the significance and consequences of a particular decision.”
(Godinez, at p. 401, fn. 12; see also Faretta, at p. 835.) “The test for a valid
waiver of counsel is not whether specific warnings or advisements were given
but whether the record as a whole demonstrates that the defendant
understood the disadvantages of self-representation, including the risk and
complexities of this particular case.” (Bloom, supra, 48 Cal.3d at p. 1225;
People v. Koontz (2002) 27 Cal.4th 1041, 1070.) Thus, the trial court need
only warn a defendant “in general terms of the most common disadvantages.”
(People v. Frederickson (2020) 8 Cal.5th 963, 1003 (Frederickson).)
Additionally, “no particular form of warning is required.” (Burgener, supra,
46 Cal.4th at p. 241.)
Although a valid Faretta waiver is established from the record as a
whole, in Lopez, the court set guidelines for warnings that a trial court should
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use to caution a defendant when the defendant requests a Faretta waiver.
(People v. Lopez (1977) 71 Cal.App.3d 568, 572-573 (Lopez).) A trial court
should warn a defendant that: (1) self-representation is unwise; (2) the
defendant is held to the same rules and standards as an attorney;
(3) opposing counsel is an experienced professional; and (4) the defendant will
not receive special library privileges in connection with his or her defense.
(Ibid.) Conversely, a trial court is not required to warn a defendant
requesting a Faretta waiver that he or she is precluded from appealing based
on ineffective assistance of counsel. (Bloom, supra, 48 Cal.3d at p. 1225.)
Some courts hold that a trial court is not constitutionally required to
warn a defendant in every case of “all possible penal consequences” from
their trial. (People v. Bush (2017) 7 Cal.App.5th 457, 473 (Bush); see also
People v. Harbolt (1988) 206 Cal.App.3d 140, 149-151.) However, other
courts hold that a trial court should advise a defendant of “the maximum
punishment” he or she faces. (People v. Jackio (2015) 236 Cal.App.4th 445,
454-455 (Jackio); see also People v. Noriega (1997) 59 Cal.App.4th 311, 319.)
B. Analysis
Despite a less formal colloquy and the absence of a standard Faretta
waiver form in the record, the record as a whole reflects a valid waiver.
First, the record reflects Solorio made a voluntary decision regarding
Faretta because he repeatedly requested and affirmed his desire to represent
himself on three separate occasions during the June 23, 2021, June 25, 2021,
and July 9, 2021 hearings. Prior to requesting a waiver, Solorio requested
two Marsden hearings because he did not want his counsel. The effort he
undertook to remove counsel further shows the voluntariness of his waiver.
The court ensured that Solorio knew he would be representing himself in
both the probation case and the ammunition case, and Solorio unequivocally
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agreed to “do it on [his] own.” Therefore, Solorio knew the extra
responsibility he gained when representing himself in the probation case and
the ammunition case.
Second, the trial court did not “simply den[y] or grant[ ]” Solorio’s
request for self-representation. (See People v. Truman (1992) 6 Cal.App.4th
1816, 1824.) Rather, the court engaged in discussions with Solorio regarding
his Faretta rights over multiple hearings that provided both explicit and
implicit warnings of the dangers of self-representation. For example, the
court told Solorio that he did not advise self-representation and that it was
“an unwise decision.” Although a Faretta form was not in the record, on June
25, 2021, the court received a single Faretta form that applied “to both cases.”
At the July 9, 2021 hearing, the court also referred to Solorio’s Faretta rights,
which it had detailed “in the other case,” suggesting that the trial court gave
Solorio Faretta warnings in the felony case and that Solorio understood those
warnings. The court further confirmed this understanding by reminding
Solorio that he knew his rights regarding Faretta. The court’s references to
Solorio’s Faretta rights in the felony case and his apparent understanding of
those rights support the conclusion that Solorio knowingly and voluntarily
waived his right to counsel in the ammunition case and the probation case.
Despite the court not providing some Lopez warnings verbatim, the
trial court’s implicit references to Faretta warnings follows Burgener’s
acknowledgement that a less formal colloquy can be appropriate. In
Burgener, the court recognized that when a defendant requests to represent
themselves, some circumstances may justify “a less searching or formal
colloquy.” (Burgener, supra, 46 Cal.4th at p. 242 [finding that the trial
court’s emphasis on the benefits of self-representation alone during the
court’s reconsideration of an application to modify a verdict was not a
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sufficient colloquy]; see also Patterson v. Illinois (1988) 487 U.S. 285, 299
[finding that a limited inquiry into a defendant’s request for self-
representation is permitted at the post indictment stage].) A less formal
colloquy was appropriate considering Solorio’s understanding of Faretta in
the context of the felony case and his history of probation revocation
hearings.
In addition to this less formal colloquy, the judge supplemented these
discussions with explicit admonishments that he did not advise self-
representation and that it was “an unwise decision,” both warnings that
clearly follow the Lopez guidelines. (Lopez, supra, 71 Cal.App.3d at pp. 572-
573; People v. Daniels (2017) 3 Cal.5th 961, 975.) The court also explicitly
warned Solorio about the risk of calling a witness as a self-represented
defendant.
Third, the court inquired and subsequently granted Solorio’s waiver in
the context of a joint hearing that included his fifth probation revocation
hearing. In Frederickson, the court found the trial court’s inquiry into a
defendant’s request for a Faretta waiver sufficient in part because the
defendant told the court he had been involved in several cases and had
previously represented himself in them. (Frederickson, supra, 8 Cal.5th at
p. 1004.) Although the record does not indicate that Solorio represented
himself previously as in Frederickson, Solorio was familiar with the criminal
justice system and he knew his Faretta rights through the felony case. This
further shows that Solorio knew the disadvantages of self-representation,
and thus he knowingly and voluntarily waived his right to counsel.
Finally, if the court were required to ensure Solorio knew the
maximum possible punishment (see Jackio, supra, 236 Cal.App.4th at p. 455;
but see Bush, supra, 7 Cal.App.5th at p. 473), because of Solorio’s previous
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no-contest plea and four prior probation revocation hearings, Solorio was
aware of the upper term punishment of four years. Thus, Solorio knew the
maximum punishment he faced, and a warning on this matter was not
required.
Independently examining the record as a whole, we conclude the trial
court adequately warned Solorio of the disadvantages of self-representation
such that Solorio knowingly, voluntarily, and intelligently waived his
constitutional right to appointed counsel. The trial court did not err by
granting Solorio’s Faretta waiver.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O’ROURKE, J.
BUCHANAN, J.
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