Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD200878. Roger Krauel, Judge.
NARES, Acting P. J.
A jury found Drafton Bunch guilty of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)) (count 1) and possessing cocaine base for sale (Health & Saf. Code, § 11351.5) (count 2). The court sentenced him to 10 years in prison: the four-year middle term for selling cocaine base, a stayed term (Pen. Code, § 654) for possessing cocaine base for sale, and, at issue in this appeal, three years each for two Health and Safety Code section 11370.2, subdivision (a) enhancements. Bunch appeals, contending he never admitted, and the People never proved, the allegations underlying these enhancements, or allegations of a third Health and Safety Code section 11370.2, subdivision (a) prior conviction; three Penal Code section 1203.07, subdivision (a)(11) probation denial prior convictions; four Penal Code section 1203, subdivision (e)(4) probation denial prior convictions; and prior prison terms (Pen. Code, §§ 667.5, subd. (b), 668). We conclude there was insufficient evidence to support the court's findings the allegations were true.
Health and Safety Code section 11370.2, subdivision (a) provides: "Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment."
Penal Code section 1203.07, subdivision (a)(11) proscribes probation for persons convicted of certain offenses with "one or more convictions for violating Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, or 11379.5 of the Health and Safety Code," excepting "prior convictions under Sections 11352, 11379, and 11379.5 of the Health and Safety Code . . . [for] transportation, offering to transport, or attempting to transport a controlled substance."
Penal Code section 1203, subdivision (e)(4) proscribes probation for "[a]ny person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony."
FACTUAL BACKGROUND
On August 15, 2006, Bunch's codefendant agreed to help an undercover police officer buy $20 worth of cocaine base. The officer gave the codefendant a $20 bill. The codefendant contacted Bunch, who reached into his waistband and brought out a white plastic-looking item. The codefendant then handed the officer a small piece of a white substance that turned out to be cocaine base. Before his arrest, Bunch threw away an object later identified as cocaine base. Another piece of cocaine base was found on the ground where the codefendant had been standing. Each piece of cocaine base constituted a usable amount. When arrested, Bunch had a $20 bill in his pocket. The bill had the same serial number as the $20 bill the police had recorded earlier.
PROCEDURAL BACKGROUND
As to each of the above substantive two offenses, the information contained six prior conviction allegations: two Health and Safety Code section 11352, subdivision (a) convictions pursuant to Health and Safety Code section 11370.2, subdivision (a) (one in case No. SCD170999 and one in case No. SCD157651); the same two Health and Safety Code section 11352, subdivision (a) convictions pursuant to Penal Code section 1203.07, subdivision (a)(11); a Health and Safety Code section 11351.5 conviction pursuant to Health and Safety Code section 11370.2, subdivision (a) (no case number specified); and a Health and Safety Code section 11351.5 conviction pursuant to Penal Code section 1203.07, subdivision (a)(11) (no case number specified). The information also alleged, as three prior prison terms, two February 3, 2003 convictions in case No. SCD170999 (Health & Saf. Code, §§ 11352, subd. (a), 11351.5) and one April 18, 2001 conviction in case No. SCD157651 (Health & Saf. Code, § 11352, subd. (a)). Finally, the information alleged four Penal Code section 1203, subdivision (e)(4) probation denial prior convictions: the two February 3, 2003 convictions in case No. SCD170999; the April 18, 2001 conviction in case No. SCD157651; and an August 29, 1995 conviction in case No. SCD112992 (Pen. Code, § 496, subd. (a)).
These allegations comprise two prior prison terms, not three. (Pen. Code, § 667.5, subd. (g) ["A prior separate prison term for the purposes of this section shall mean a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes"]; see In re Reeves (2005) 35 Cal.4th 765, 773 [the purpose of Penal Code section 667.5, subdivision (g) "is to avoid enhancing a sentence for a 'prior separate prison term' (§ 667.5, subd. (a)) more than once for a single prior stay in prison"].)
Additionally, the information alleged one count of destroying or concealing documentary evidence (Pen. Code, § 135), which the court dismissed before trial.
Bunch waived his right to a jury trial on the priors, and the court bifurcated the trial.
At the jury trial, on direct examination, Bunch admitted being convicted of receiving stolen property in "I think [19]95" and being convicted of selling drugs "[l]ike in 2000, 2001, 2002, something like that." The court admonished the jury that the prior convictions could be considered only for the purpose of determining the believability of Bunch's testimony.
After the jury's verdict, the following occurred.
"Mr. Duong [defense counsel]: Your Honor, I have talked with Mr. Bunch already, and he at this time will admit that he was convicted of the priors.
"The Court: Mr. Bunch, you understand that you do have a right to trial. You have a right to call witnesses. You have a right to testify or not to testify. That's your choice, and you obviously have a right to have counsel.
"Do you understand that you are giving those rights up if you admit that the priors -- that you have those prior convictions?
"The Defendant: Uh-huh.
"Mr. Duong: Say it aloud.
"The Court: 'Yes'?
"The Defendant: Yes.
"The Court: Are the People satisfied with the taking of the admission?
"Ms. Sueing-Jones [deputy district attorney]: Yes, Your Honor. Do you need to go through -- Do you typically go through the specific ones or just the ones that were alleged in the complaint?
"The Court: I am just referring to the three that are alleged in the complaint.
"Ms. Sueing-Jones: Right. Right.
"The Court: That is what I typically do.
"Ms. Sueing-Jones: Okay. I just didn't hear you say that. Thank you. Sorry.
"The Court: Okay. Then I find that the allegations of the priors as alleged in the information are true."
At sentencing, the court denied probation based on Penal Code section 1203.07, subdivision (a)(11), Bunch's criminal record, and the facts of the instant case. As to count 1, it imposed the four-year middle term; found that two Health and Safety Code section 11370.2, subdivision (a) enhancements had been pleaded and proven (case Nos. SCD170999 and SCD157651); and enhanced Bunch's sentence by three years for each, for a total of six years. It found "that a second enhancement pursuant to Health and Safety Code section 11370.2[, subdivision] (a) has been pled and proved concerning . . . case [No. SCD]170999" and "enhancement pursuant to Penal Code section[s] 667.5 and 668 has been pled and proved concerning [case Nos. SCD157651 and SCD170999]." It then stated: "As to the last two enhancements, the court strikes those enhancements . . . ." The court stayed the sentence on count 2. It did not mention the four Penal Code section 1203, subdivision (e)(4) probation denial prior convictions.
There was no second Health and Safety Code section 11370.2, subdivision (a) allegation as to case No. SCD170999. Rather, the information did not specify a case number for the remaining Health and Safety Code section 11370.2, subdivision (a) allegation.
It appears that the court's reference to "the last two enhancements" encompassed the "second enhancement pursuant to Health and Safety Code section 11370.2[, subdivision] (a)" and the "enhancement pursuant to Penal Code section[s] 667.5 and 668 . . . concerning [case Nos. SCD157651 and SCD170999]."
DISCUSSION
Bunch asserts although defense counsel said that Bunch would admit the allegations concerning the prior convictions, Bunch never actually admitted them. Rather, Bunch contends, he simply told the court that he understood he would be waiving his constitutional rights if he did admit the allegations. Bunch also asserts the People never proved the allegations. He concludes there was insufficient evidence to support the court's findings the allegations were true and asks that this case be remanded for resentencing. His arguments apply to the Health and Safety Code section 11370.2, subdivision (a) enhancements; the probation denial prior convictions; and the prior prison terms.
Before a defendant admits an allegation for sentencing purposes, the court must explicitly advise the defendant of his or her constitutional trial rights, and obtain the defendant's voluntary and intelligent waiver of those rights. (People v. Howard (1992) 1 Cal.4th 1132, 1174-1180.) It is axiomatic that the court must also obtain the defendant's admission the allegation is true, which provides the factual basis for the court's subsequent finding of the truth of the allegation. Here, this crucial step was omitted. The court never asked Bunch whether he admitted the allegations and, as a consequence, Bunch never admitted them. Alternatively, the People could have proved the allegations. They did not do so.
As shown from the dialogue quoted above, Bunch never admitted any of the priors. Defense counsel's statement that Bunch "will admit that he was convicted of the priors" did not specify which priors. It was not until Bunch's terse participation in the dialogue had ended that the court said it was "referring to the three [priors] that are alleged in the complaint." Even then there was no specification of the applicable code sections─Health and Safety Code section 11370.2, subdivision (a); Penal Code section 1203.07, subdivision (a)(11); Penal Code section 1203.07, subdivision (a)(11); and Penal Code section 667.5, subdivision (b).
The People argue that Bunch's testimony at trial constituted an admission of the truth of the priors. That testimony, however, was adduced for the sole purpose of impeaching Bunch, and had no relation to sentencing. Additionally, the basis of his statement that he was convicted of selling drugs "[l]ike in 2000, 2001, 2002, something like that" is unclear. The context of the statement does not disclose whether it refers to one conviction or more than one conviction. The statement does not cite any of the code sections set forth in Health and Safety Code section 11370.2, subdivision (a). Furthermore, one of the three Health and Safety Code section 11370.2, subdivision (a) allegations attached to each count was based on a conviction of possessing cocaine base for sale under Health and Safety Code section 11351.5─not a conviction of selling drugs. Moreover, Bunch's statements do not constitute admissions of the elements of Penal Code section 667.5, subdivision (b). That subdivision requires a "prior separate prison term served for any felony" except one "served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction." Bunch's statements say nothing about serving a prison term. Finally, his statements do not cite any of the code sections set forth in Penal Code section 1203.07, subdivision (a)(11) or contain a clear acknowledgement that he had two previous felony convictions within the meaning of Penal Code section 1203, subdivision (e)(4).
The probation report lists two drug sales convictions (Health & Saf. Code, § 11352, subd. (a)): an April 18, 2001 conviction in case No. SCD157651, and a February 3, 2003 conviction in case No. SCD170999. It lists one conviction of receiving stolen property, an August 29, 1995 conviction in case No. SCD112992.
A conviction of receiving stolen property can be either a felony or a misdemeanor. (Pen. Code, § 496, subd. (a).)
The People also assert, "During motions in limine, the court noted and appellant agreed that his prior convictions for receiving stolen property (Pen. Code, § 496[, subd. (a)] case number SCD112992) and for selling narcotics (Health & Saf. Code, § 11352, subd. (a), case numbers SCD157651 and SCD170999) were crimes of moral turpitude." The portions of the record the People cite to support this assertion, however, consist of a discussion between the court and counsel, with no statements by Bunch.
Finally, the People cite, as further evidence that Bunch admitted the priors, his failure to point out, at sentencing, that the true findings on the prior convictions lacked an evidentiary basis. Bunch's silence at sentencing clearly does not constitute the required affirmative personal admission of the priors.
Following the proper procedure in taking an admission protects "both the accused and the People, the latter by the assurance that an otherwise sound [admission] will not fall due to an inadequate record." (People v. Howard, supra, 1 Cal.4th at p. 1179.) Here, because the allegations were neither admitted nor proved, there is insufficient evidence to sustain the court's finding the allegations were true.
DISPOSITION
The true findings on the allegations of the prior convictions and the sentence are reversed. In all other respects, the judgment is affirmed. The case is remanded to the trial court with directions to conduct a new hearing on the allegations of the prior convictions and hold a new sentencing hearing.
WE CONCUR: McDONALD, J., AARON, J.