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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,

Plaintiff and Respondent,

v.

EZRA HOOKER, Sr.,

Defendant and Appellant.

B307450

Los Angeles County

Super. Ct. No. BA479490

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.
2

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. 
3

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. 
4

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. 
5

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).)
6

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 
7

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. 
8

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.)
9

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.