By Benjamin Porter
SACRAMENTO, CA – With his trial set to start in less than a week, defendant Andrew Duenas informed Judge Joseph Orr in Dept. 63 of the Sacramento County Superior Court on Tuesday afternoon he was going to represent himself.
Facing up to 15 years and four months in prison for several felonies and misdemeanors, Duenas said “I don’t trust my attorney’s legal strategies.”
The felonies include evading a police officer, evasion while driving down the opposite direction of a highway, assault, driving under the influence, failing to stop after hitting and damaging property, and assaulting a police dog.
Friday July 9, Duenas had a motion to fire his court-appointed attorney, also known as a Marsden motion, denied.
Duenas’s court-appointed attorney, Anthony John Crisostomo, began the proceedings by saying that that he initially hoped to ask for a continuance because of the large amount of police body camera footage he had recently received from the District Attorney.
However, last week’s denial of the Marsden motion and Duenas’s new desire to represent himself changed the course of the hearing, prompting Judge Orr to warn Duenas about the potential futility of doing so.
“You need to be aware that it’s almost inevitable, well it’s almost a certainty, that you will not know how to conduct this trial in any kind of a professional fashion,” Judge Orr said. “Have you ever represented yourself before in a criminal proceeding?”
“This would be my first,” Duenas replied.
Judge Orr continued by informing Duenas of more of the risks in representing himself, or “in propria persona,” often abbreviated as “pro per.”
“The court would not be granting you any special privileges because you would be representing yourself, which means that every objection that’s made that’s sustained, you would not be permitted to argue it,” Judge Orr said, later adding that he would be “held to the same standards as an attorney is held.”
Crisostomo, Judge Orr, and Deputy District Attorney Emilee Divinagracia then discussed the potential prison exposure that Duenas risked by representing himself, which they initially calculated as 10 years and four months but later amended to 15 years and four months because Duenas has a prior strike.
Wondering why Duenas would risk such a lengthy prison term, Judge Orr asked if any deals had been offered by the prosecution.
“Is there an offer that’s been conveyed?” Judge Orr asked.
“The last offer was middle term doubled,” Divinagracia said. “That offer has since been revoked since we went forward with prelim and at this time I had asked the defense if there was anything that the defendant would take and he indicated that there was none.”
Crisostomo clarified Divinagracia’s remarks by stating that, while Duenas had not accepted the DA’s deal, he did have a preferred option other than representing himself at trial.
“Well just to be clear, my client did ask for probation, which the People were not amenable to given his prior record,” Crisostomo said. “So, Ms. Divinagracia is not incorrect in what she’s stating, but what Mr. Duenas wanted was a probation offer without the prior strike alleged.”
Since the District Attorney would “not require” a plea to the previous strike if Duenas opted to resolve it, that means that under the deal he would face only two years, according to the now-revoked deal.
Judge Orr expressed his bafflement:
“Well, Mr. Duenas I think that you would be making a grave mistake by attempting to represent yourself, both because your exposure is so high, and because you really have no experience in dealing with this,” Judge Orr said. “I would really urge you to reconsider.”
“I mean, well, in all honesty, Judge, I would like to move,” Duenas said. “Because, like my attorney said, there has been a discrepancy where a Marsden motion was filed, it was denied, and I told the judge, like I say it now, I don’t trust my attorney’s legal strategies moving forward toward trial, therefore I would like to go pro per.”
After accepting Duenas’s desire to represent himself, Judge Orr had the Faretta forms signed, scanned and sent to the jail for Duenas to sign.
Crisostomo then mentioned that Duenas had filed a “995” motion on his own behalf, asking the judge to dismiss one or more of the charges. Crisostomo acknowledged that these documents were “not authored by myself.” Neither Divinagracia nor Judge Orr had actually received the documents.
Judge Orr then walked Duenas through the entire Faretta advisement, informing him that it’s “generally not wise to represent yourself, and that you have a right to an attorney at all stages of the proceedings, you understand that?”
“Yes sir,” Duenas replied.
“You also understand you’re gonna be opposed by a trained prosecutor?
“And that you will have to comply with the rules of evidence, just as an attorney will?
“And you’re not going to be able to appeal if you are convicted based on the claim that you are not competent to represent yourself?”
“And you understand the court’s not going to delay this case to allow you a new attorney to prepare to represent you, you understand that?”
“And I’ve inquired into your legal background and you’ve indicated that you basically have none, except for that this is basically your first go at representing yourself, is that correct?”
“And knowing all of this you still request to represent yourself?”
Following some comments from Divinagracia regarding amendments to the complaint, Judge Orr again indicated to Duenas that he would have very little time to prepare and that he did not want to change the trial date because of this “last minute” decision to “go Faretta.”
“I do believe that there is going to be a pro per coordinator who will assist in terms of getting you an investigator, but I don’t know what is going to be able to be done between now and the trial date, and I’m not continuing that trial date. So […] and the court is just in the position of hiring a new pro per coordinator as well.”
“Okay, understood,” Duenas said.
However, the hiring of a new pro per coordinator ended up convincing Divinagracia that it would make more sense to postpone the trial after all, giving Duenas more time.
“Your Honor, we’re on again for a trial readiness conference on the 15th, so two days from now,” Divinagracia said. “I don’t think we’re going to have the answer to those questions two days from now. So if we could, I would ask to reset the jury trial dates. That way we don’t have to come back again.”
“To reset what?” Judge Orr asked.
“The jury trial date,” Divinagracia said. “Because the check-in calendar has already been–the deadline has already passed. And so we wouldn’t get assigned a courtroom. I’d rather just pick new jury trial dates today and then we can drop our next court appearance, which is supposed to be two days from now, for a trial readiness conference.”
After a long silence of nearly 30 seconds from Judge Orr, “Well I’m sure Mr. Duenas doesn’t oppose that.”
Despite Duenas’s contention that he wanted the trial to be “like three weeks out,” the judge and DDA eventually settled on dates much further out to allow for the appointment of a new pro per coordinator and an investigator to work with Duenas.
The jury trial is reset for Sept. 13 at 8:45 in Dept. 9, while the trial readiness hearing will now be on Sept. 9 at 1:35 in Dept. 63.
Judge Orr concluded the proceedings by wishing Duenas “good luck.”
“Thank you,” Duenas said.