Opinion
C083574
09-28-2017
THE PEOPLE, Plaintiff and Respondent, v. MARCUS CROWDUS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F07571)
A jury found defendant Marcus Crowdus guilty of felony and misdemeanor domestic battery and assault charges. (Pen. Code, §§ 240, 243, subd. (d), 273.5, subd. (a).) Through trial counsel, but without being advised by the trial court of his constitutional rights, defendant stipulated to the fact that he suffered a prior domestic battery conviction in Indiana. The jury found true the prior conviction allegation and the trial court enhanced defendant's sentence accordingly.
Unspecified statutory references are to the Penal Code.
Defendant contends his stipulation was neither intelligent nor voluntary and thus the stipulation must be set aside and the sentence enhancement vacated. He further contends the prior Indiana misdemeanor conviction does not fall within the class of offenses described in section 273.5, subdivision (f)(1) and therefore should not have been used to enhance his sentence by one year. Defendant contends the matter should be reversed and remanded for resentencing or, alternatively, reversed and remanded with directions to the trial court to either secure his knowing, intelligent, and voluntary admission of the prior conviction allegation or order a retrial of the prior conviction allegation.
The People concede both of defendant's claims, that the error was prejudicial, and that the judgment as to the prior conviction allegation must be reversed. The People argue defendant's sentence should be vacated and the matter remanded for the trial court to resentence him to the upper term of four years.
We agree the stipulation must be set aside, the judgment as to the prior conviction enhancement reversed, and the matter remanded for limited proceedings. We otherwise affirm the judgment.
PROCEDURAL BACKGROUND
We dispense with a detailed recitation of the facts as they are unnecessary to our resolution of this appeal. Suffice it to say that, on two separate occasions, defendant attacked and injured J. Doe, a woman with whom he was in a dating relationship. J. Doe initially reported the attacks to law enforcement officers, but later recanted her accusations, stating she was injured when she was hit in the face with a basketball.
On October 6, 2016, defendant was charged by second amended information with willful and unlawful infliction of corporal injury on J. Doe, with whom defendant had a dating relationship, resulting in a traumatic condition, a felony (§ 273.5, subd. (a)—count one), unlawful violation of the personal liberty of J. Doe by violence, menace, fraud, and deceit (§ 236—count two), willfully causing and permitting Z. Doe, a child of three years, to be injured under circumstances other than those likely to produce great bodily harm or death (§ 273a, subd. (b)—count three), willful and unlawful use of force and violence upon J. Doe resulting in the infliction of serious bodily injury (§ 243, subd. (d)—count four), and willful and unlawful infliction of corporal injury on J. Doe, with whom defendant had a dating relationship, resulting in a traumatic condition, a misdemeanor (§ 273.5, subd. (a)—count five). The amended information alleged that, in the commission of count one, defendant inflicted great bodily injury (§ 12022.7, subd. (e)) and suffered a prior conviction for violating section 273.5, subdivision (a) in Sacramento County on May 2, 2013 (§ 273.5, subd. (f)(1)).
The prosecution subsequently informed the trial court that the amended information incorrectly alleged a prior section 273.5, subdivision (a) conviction in Sacramento County when in fact the prior conviction occurred in the State of Indiana. --------
Defendant was tried by a jury and found guilty of counts one and four, and not guilty of counts two and three. As to count five, the jury found defendant guilty of the lesser included offense of misdemeanor assault. (§ 240.) The jury also found not true the allegation that defendant inflicted great bodily injury, and found true the allegation that defendant suffered a prior infliction of corporal injury conviction.
The trial court denied probation and sentenced defendant to the upper term of four years on count one, plus a consecutive one-year term for the prior domestic battery conviction enhancement (§ 273.5), plus three years (the middle term) for count four stayed pursuant to section 654, for an aggregate term of five years in state prison. The court awarded defendant 377 days of presentence custody credit and imposed mandatory fees and fines.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends, and the People concede, that his stipulation to the prior conviction was not a voluntary or intelligent waiver of his right to challenge the validity of the prior conviction. We will accept the People's concession as provident and reverse the judgment as to the true finding on the prior conviction allegation and strike the related one-year enhancement.
Background
Near the end of defendant's trial, outside the presence of the jury, the parties discussed with the trial court the reliability of the People's evidence of defendant's prior Indiana conviction for misdemeanor domestic battery. In order to prove defendant's prior Indiana conviction, the People offered a certified record of defendant's "multistate rap" which purported to show defendant was convicted in Indiana in 2013 of violating "Indiana code 35-42-2-1.3(a)," classified as a "misdemeanor class A, domestic battery." The People argued the Indiana code section described the offense as "a person who knowingly and intentionally touches an individual who is a spouse or is living if as a spouse or has a child in common and touches them in a rude, insolent or angry manner that results in bodily injury to the person." The People further argued the elements of the Indiana conviction were "similar to the elements described in the current case and would suffice for a similar type of conviction."
Defendant's trial counsel objected to the document as inadmissible hearsay and lacking foundation. Noting the elements of the Indiana conviction "basically coincide perfectly with a [section] 243(e)(1), which is our [California's] battery on a spouse," the court concluded it would allow the People to use the document as a basis for submitting other evidence to the jury. The court proposed that the parties fashion a stipulation indicating to the jury that defendant suffered a prior conviction in Indiana for a misdemeanor domestic battery. With assurances from the court that the stipulation would not waive defendant's potential challenge to admissibility of the evidence of the prior conviction on appeal, defendant's counsel agreed to a stipulation to the fact of the prior conviction to be read to the jury.
At the close of the People's case, the prosecutor read the following stipulation to the jury: "[I]t's been stipulated between the parties that the defendant . . . suffered a misdemeanor conviction for domestic battery out of Indiana in 2013." After defendant's counsel affirmed the stipulation, the court told the jury, "So a stipulation, folks, is an agreement between the parties that they agree to those facts. No further witnesses need to be called regarding that piece of evidence." Thereafter, the People rested and defendant offered no witnesses or evidence on his behalf.
Analysis
The Supreme Court has held, as a rule of judicial procedure, that when taking an admission of a prior conviction, the trial court must expressly advise the defendant of the three Boykin-Tahl rights—jury trial, confrontation, and self-incrimination—and obtain an express waiver of those rights. (In re Yurko (1974) 10 Cal.3d 857, 863 & fn. 5; Boykin v. Alabama (1969) 395 U.S. 238, 243 [23 L.Ed.2d 274, 279-280]; In re Tahl (1969) 1 Cal.3d 122, 131.)
When a defendant does not expressly waive all of his rights, a reviewing court must examine "whether 'the record affirmatively shows that [the admission] is voluntary and intelligent under the totality of the circumstances.' " (People v. Mosby (2004) 33 Cal.4th 353, 360, quoting People v. Howard (1992) 1 Cal.4th 1132, 1175, italics omitted.) "The focus is not whether [an allegation of] a prior [conviction] would have been found true, but on whether the defendant knew of his constitutional rights." (People v. Stills (1994) 29 Cal.App.4th 1766, 1770, citing People v. Howard, supra, 1 Cal.4th at p. 1180.)
The parties are in agreement that People v. Cross (2015) 61 Cal.4th 164 (Cross) is on point. In Cross, the defendant stipulated to a prior conviction which subjected him to a higher potential prison term. The trial court accepted the defendant's stipulation without advising him of (a) his right to trial on the prior conviction allegation or (b) the penal consequences of his admission. In addition, the trial court accepted the stipulation during the prosecution's questioning of its first witness, so the defendant had not been exposed by the trial itself to the rights he was waiving. Our Supreme Court concluded defendant's waiver of his constitutional rights was not knowing and voluntary under the totality of the circumstances. (Id. at pp. 179-180.)
Here, as in Cross, it is plain from the record that when defendant stipulated to the prior Indiana conviction, thus subjecting him to increased punishment, he was never advised of his constitutional rights, including the right to a jury trial, the right to confront and cross-examine witnesses, and the privilege against self-incrimination, nor did he make an express waiver of those rights to the trial court. The record also makes plain that, before accepting the stipulation, the trial court never directly addressed defendant regarding the stipulation or admission of the prior Indiana conviction, nor did the court confirm with defense counsel that counsel had spoken with defendant about or explained the effect of the stipulation. Although defendant's counsel obtained assurances from the court that the stipulation would not waive defendant's challenge to admissibility of the evidence of the prior conviction on appeal, "nothing in the record affirmatively shows that [defendant] was aware of his right to a fair determination of the truth of the prior conviction allegation" (Cross, supra, 61 Cal.4th at p. 180) or his constitutional rights associated therewith.
Given the circumstances here, defendant's stipulation to the prior Indiana conviction, the resulting true finding rendered by the jury, and the one-year sentence enhancement imposed by the court must be set aside and the matter remanded for further proceedings.
In light of our conclusion that the enhancement for the prior Indiana conviction must be set aside, we need not reach defendant's additional claim (also conceded by the People) that his prior Indiana misdemeanor conviction for domestic battery does not fall within the class of offenses described in section 273.5, subdivision (f)(1) and therefore cannot be used to enhance his sentence.
DISPOSITION
The finding that defendant suffered the prior conviction and the imposition of a one-year state prison sentence are reversed. In all other respects the judgment is affirmed. The matter is remanded to the trial court for further proceedings to determine the truth of the alleged prior conviction. If the prior is again found true, the true finding and the one-year state prison term shall be reinstated. If the prior is not found true, the court shall resentence defendant accordingly.
NICHOLSON, Acting P. J. We concur: HULL, J. MAURO, J.