Opinion
E052389
11-07-2011
THE PEOPLE, Plaintiff and Respondent, v. ALFONSO DIAZ, JR. Defendant and Appellant.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting, and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF024308)
OPINION
APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia, Judge. Affirmed.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting, and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Alfonso Diaz, Jr. (defendant) appeals from judgment entered following jury convictions for battery with serious bodily injury (Pen. Code, § 243, subd. (d); count 1), spousal abuse (§ 273.5, subd. (a); count 2), and aggravated assault (§ 245, subd. (a)(1); count 3). The jury found defendant not guilty of false imprisonment (§ 236; count 4) and child endangerment (§ 273a, subd. (a); count 6). The trial court denied defendant's motion to dismiss a prior strike under section 1385, and sentenced defendant to six years in state prison.
Unless otherwise noted, all statutory references are to the Penal Code.
The trial court dismissed three of the child endangering counts (counts 7, 8, and 9) under section 995, and granted defendant's motion for acquittal under section 1118.1 as to count 5 (dissuading the victim).
Defendant contends there was insufficient evidence to support his convictions. He also argues the trial court's failure to advise him of his constitutional rights before he admitted a prior conviction allegation, violated his due process rights. We reject defendant's contentions and affirm the judgment.
II
FACTS
Defendant and Christina Diaz (Christina) married in 2001. Christina had known defendant since she was 14 years old. At the time of trial, Christina was 27 years old and was living with defendant and their six children, all fathered by defendant. The children ranged in age from five months to 10 years old.
Christina's Statement
The following facts are based on Christina's statement given to Deputy Cramer on January 11, 2008, and on Christina's trial testimony acknowledging she made the statements but recanting them. During the afternoon of January 8, 2008, Christina and her four daughters, ranging in age from two to eight years old, went to Christina's parents' house in Los Angeles. Christina felt she needed to get away. At the time, Christina, defendant, and their daughters lived together in Perris.
During the evening of January 8, 2008, around 8:00 p.m., defendant drove to Christina's parents' home and argued with Christina. Defendant accused Christina of having an affair with another man. Defendant told Christina to return home. He pulled out a pistol from his waistband and warned Christina, "Don't make it worse, or we're all going to die here together." Christina returned home that evening. At trial, Christina denied this incident had occurred. She claimed she made up the incident because she was mad at defendant and wanted defendant to get in trouble.
On January 9 or 10, 2008, after coming home from work, defendant again accused Christina, in front of their four daughters, of cheating on him and told the children that Christina was looking for a new father for them. Defendant showed Christina a phone bill and asked her whose phone numbers were on the bill. Christina told him to leave or she would call the police. He refused to leave and pushed the children out of the bedroom. Defendant then hit Christina in the mouth with his open hand, grabbed her by her hair, pulled her to the ground, and stepped on her neck with his steel-toed boot. Christina could not breathe and lost consciousness.
When Christina regained consciousness, her one-year-old daughter was crying over her. Two of her other daughters were in another room. Later, during Christina's testimony she stated that all four of her daughters were in her room crying when Christina regained consciousness. Defendant told Christina to tell him with whom she was having an affair. Defendant kicked her in the stomach, head, and back, while Christina was protecting her daughter. Defendant also punched Christina in the face several times, pushed her into a wall, grabbed her throat, and strangled her until she could not breathe. Christina bit defendant's thumb and fingers, drawing blood. Defendant ordered her to lick his blood off his fingers. After she complied, he hit her in the head several times.
The next morning, around 10:00 a.m., on January 10, 2008, defendant unplugged the telephones and computer, locked Christina in her bedroom, and hit her in the back with the phone cords. When defendant caught her trying to escape through the bedroom window that evening, defendant hit her in the left eye. During the morning of Friday, January 11, 2008, defendant kicked Christina in the groin, back, and head several times, and then left.
Christina's Testimony
At trial, Christina recanted most of what she told Cramer had occurred in January 2008. Christina acknowledged she had told Cramer much of what he reported but denied that what she had said was true. Christina claimed she either did not say what Cramer reported or had made it up because she was mad at defendant and wanted defendant to get in trouble.
Christina testified at trial that she was having an affair in January 2008. Christina's cousin called defendant on January 10, 2008, and told him Christina was cheating on defendant. Defendant and Christina argued about it during the morning of January 10. At first, Christina denied she was having an affair but later told defendant it was true. That evening, defendant and Christina argued again for a couple of hours about Christina having an affair. Christina threw a phone at defendant because she was mad. Defendant threw a telephone bill at her. The papers hit her in the mouth. Christina got mad and hit and scratched defendant. Defendant pushed her down on the floor. Christina came back at defendant and hit him. Defendant hit Christina in the left eye. He did not hit her in the right eye. Defendant did not kick her or pull out of the wall any phone cords. Defendant and Christina eventually stopped fighting. They continued arguing for another 40 minutes and then went to bed.
Christina further testified that Friday morning, January 11, 2008, defendant and Christina argued again about Christina having an affair. Christina started screaming at defendant. She continued to deny she was having an affair. Defendant told her to be quiet and covered her mouth with his hand. Christina bit his finger because she was mad at him. His hand bled. He went to the kitchen and washed his hands. Defendant did not hit Christina.
Christina went to the police station during the afternoon of January 11, 2008, because she was mad at defendant. He had hit her and accused her of having an affair. Before going to the police station, she called the man with whom she was having an affair and told him she had had a physical altercation with defendant. Her boyfriend told her to blame everything on defendant. She followed his advice. Up until then, Christina had not called the police because she did not want to publicize her personal business.
Christina acknowledged that a woman, who was a stranger, drove Christina and her children to the police station to get help. The woman dropped them off at the station and left. Christina remained at the police station until she was transported to the hospital. On January 11, 2008, Christina spoke to Deputy Cramer at the police station and at the hospital. Christina was discharged from the hospital that same evening. After leaving the hospital, she lived at a domestic violence shelter for 30 days. A couple of weeks after leaving the shelter, Christina and her children reunited with defendant. Thereafter, Christina and defendant had two more children.
Deputy Cramer's Testimony
Deputy Cramer testified that he first came in contact with Christina on January 11, 2008, at the Perris police station. Deputy Cramer responded to a call regarding a domestic violence situation at the police station. Christina was in the station lobby with her four children. She was being treated by paramedics who were about to transport her to the hospital. Christina was crying and talking but it was difficult to understand her. Deputy Cramer followed the paramedics to the hospital and contacted her in the emergency room. He tried to get Christina to calm down. She was in hysterics. After about 10 or 15 minutes, Deputy Cramer talked to her. Photographs of her injuries were taken while Christina was being treated at the hospital. Additional photographs were taken 30 to 45 minutes later, after Deputy Cramer interviewed Christina. Photographs of Christina's injuries were shown to the jury.
The first half of Christina's interview at the hospital was extremely difficult because Christina was very upset and crying. She "wailed" her responses to Deputy Cramer's questions, which made it difficult for him to understand her and he had to repeat questions. After 15 or 20 minutes Christina's answers became coherent for the most part. Christina was upset about what would happen to her children and where she would go. She was also concerned defendant might find her. Christina continued to cry sporadically throughout the interview, which lasted 30 to 45 minutes.
Cramer testified he observed Christina had the following injuries: On Christina's back, below her right shoulder, redness with a yellow bruise around it; redness and swelling on Christina's upper right thigh; four distinct bruises, appearing to be fingertip marks, on her right bicep; a barely visible black eye on the right side of her face, including bruising from the bridge of her nose around the right eye socket; swelling on the side of her face and a prominent black eye on the left side of her face; a bruise on Christina's chest; and marks and bruises on both of her arms, legs, and back. Deputy Cramer testified he did not see any injuries on Christina's back consistent with being hit with computer or telephone cords. He also did not see any injuries on Christina's neck.
Defendant's Testimony
Defendant testified that during the evening of January 10, 2008, he confronted Christina about having an affair. She became upset and told him to leave. When he refused and told her to leave, Christina said she was going to call the police. Defendant told her to go ahead and handed her the phone. Christina became more angry and threw the phone at defendant, injuring his eye. Defendant smacked Christina in the mouth with phone bill papers. Christina punched, scratched, and kicked him. Defendant grabbed her and pushed her down, causing her to bang into the dresser and fall to the ground. Christina got up and punched, kicked and scratched defendant. Defendant hit her in the eye. Christina approached defendant two or three more times. Defendant pushed her away. Defendant punched Christina in her eye with a closed fist to defend himself and to get her to stop fighting. The two stopped fighting but continued arguing until they fell asleep.
The next morning, defendant asked Christina again if she was having an affair Christina got angry and denied having an affair. She yelled and screamed in defendant's face. When he put his hand up to stop the screaming, Christina bit his thumb. He did not hit Christina and he did not make her lick the blood off his finger. He washed blood off and went outside and sat in his car for 30 or 40 minutes, and then he drove around.
Defendant denied stepping on Christina's throat with steel-toed work boots or causing her to lose consciousness. He does not have steel-toed boots. Defendant acknowledged he owned heavy duty work boots.
Christina's father, defendant's mother, and defendant's niece's husband testified that defendant was a nonviolent person.
III
SUFFICIENCY OF THE EVIDENCE
Defendant contends there was insufficient evidence to support his convictions for battery with serious bodily injury, spousal abuse, and aggravated assault. We disagree.
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Defendant argues that, although Christina told Deputy Cramer defendant physically injured her, Christina's statements to Deputy Cramer were inconsistent with her trial testimony and were inherently improbable. This court will not uphold the judgment if based upon evidence inherently improbable, but "'testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by [the trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]'" (People v. Thornton (1974) 11 Cal.3d 738, 754, quoting People v. Huston (1943) 21 Cal.2d 690, 693; see also People v. Barnes (1986) 42 Cal.3d 284, 306.)
Defendant asserts that the falsity of most of Christina's statements to Cramer is apparent without resorting to inferences or deductions. Defendant claims reasonable minds would not believe the majority of Christina's statements. Defendant acknowledges he testified he punched Christina in the eye with a closed fist, but claims he did this in self-defense. Defendant argues that the physical evidence, including the photographs showing Christina's injuries, demonstrated that he did not injure Christina as severely as she claimed he did. In addition, he asserts Christina was not admitted to the hospital and was discharged "right away."
A. Elements of Assault, Battery, and Spousal Abuse
The prosecution was required to provide substantial evidence of each of the elements of the crimes of (1) battery with serious bodily injury, (2) spousal abuse, and (3) aggravated assault. As to battery, the court instructed the jury that to convict defendant, it must find the following elements: "1. The defendant willfully and unlawfully touched Christina Diaz in a harmful or offensive manner; [¶] AND [¶] 2. Christina Diaz suffered serious bodily injury as a result of the force used (;/.) [¶] AND [¶] 3. The defendant did not act in self-defense."
The court instructed the jury that to convict defendant of spousal abuse it must find: "1. The defendant willfully and unlawfully inflicted a physical injury; [¶] AND [¶]
2. The injury inflicted by the defendant resulted in a traumatic condition. [¶] AND [¶] 3. The defendant did not act in self-defense."
As to a conviction for aggravated assault, the jury was instructed it must find: "1A. The defendant did an act that by its nature would directly and probably result in the application of force to a person, and [¶] 1B. The force used was likely to produce great bodily injury; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; [¶] AND [¶] 4. When the defendant acted, he had the present ability to apply force (likely to produce great bodily injury; [¶] AND [¶] 5. The defendant did not act in self-defense."
B. Inherent Improbability
Defendant does not challenge the sufficiency of evidence as to any particular element of his battery, spousal abuse and aggravated assault convictions. Rather, he argues that Christina's statements to Deputy Cramer, describing defendant's acts, were inherently improbable, considering the physical evidence. Defendant claims the jury convicted him of the three crimes because the jury believed Christina's statements made to Deputy Cramer and did not believe her trial testimony that she was the aggressor, who attacked defendant.
Evidence establishing Christina's injuries included Deputy Cramer's testimony regarding his observations of Christina's injuries, Christina's statements to Deputy Cramer, and photographs of Christina's injuries, taken on January 11, 2008. The photographs included photographs of injuries to Christina's left eye, hands, left leg, right thigh, arms, torso, and upper chest. Defendant argues that these photographs established it was inherently improbable that defendant committed (1) battery with serious bodily injury, (2) spousal abuse, or (3) aggravated assault. We disagree. If the jury believed what Christina told Deputy Cramer immediately following the charged offenses, the photographs support the convictions, rather than dispel any possibility of guilt.
Even if not every detail Christina said about the attack was true - such as defendant hitting her with a telephone cord and stepping on her neck with a steel-toed boot - there was more than sufficient evidence to support the jury findings that defendant assaulted and battered Christina, and that defendant was not acting in self-defense. The photographs supported reasonable inferences that Christina's injuries resulted in a traumatic condition, defendant used force likely to produce great bodily injury, and Christina suffered serious bodily injury as a result of the force defendant used. Christina's body, including her face and chest, was bruised and battered. Christina's statements to Deputy Cramer supported a reasonable finding that defendant beat her up repeatedly upon discovering Christina was having an affair. Although the photographs may not show any injuries consistent with Christina's statement to Deputy Cramer that defendant stepped on her neck, hit her back with a telephone cord, and kicked her in the stomach, head and back, defendant did not establish that such conduct could not have occurred absent visible injuries.
Furthermore, even if Christina's statements regarding the neck and telephone cord incidents were untrue or exaggerated, this does not establish that her statements concerning defendant's other violent acts were inherently improbable. As the trial court instructed, the jury "alone, must judge the credibility or believability of the witnesses. . . .
You may believe all, part, or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe." This applies equally to Christina's statements to Deputy Cramer, which Christina acknowledged making but recanted at trial.
In determining whether to believe Christina's trial testimony, as opposed to her conflicting statements made to Deputy Cramer immediately following the charged offense, the jury, no doubt, took into consideration the fact that, after Christina left the domestic violence shelter, she reunited with defendant and her children, and was living with them at the time of trial. Defendant's convictions turned on the credibility of defendant and Christina's trial testimony verses Christina's statements to Deputy Cramer immediately following the charged crimes and Deputy Cramer's corroborating testimony. It is not for this court to weigh the credibility of the conflicting testimony and evidence. Christina's statements to Deputy Cramer, which establish defendant's guilt, were not "so inherently incredible, so contrary to the teachings of basic human experience, so completely at odds with ordinary common sense, that no reasonable person would believe [them] beyond a reasonable doubt." (United States v. Chancey (11th Cir. 1983) 715 F.2d 543, 546-547 (Chancey).)
Defendant cites People v. Headlee (1941) 18 Cal.2d 266, Chancey, supra, 715 F.2d at pp. 546-547, and People v. Lang (1974) 11 Cal.3d 134, 136, 139-140 (Lang), in support of the proposition Christina's statements to Deputy Cramer were inherently improbable and therefore require reversal of defendant's convictions. These cases are factually inapposite. Headlee reversed the defendant's rape conviction, concluding the rape was inherently improbable under the evidence presented. (Headlee, supra, 18 Cal.2d at pp. 267-268.) Headlee involved implausible circumstances in which the jury found the victim was raped in a taxicab with two other people in the cab, including the victim's friend and the cab driver. Neither of the two objected to the rape or attempted to prevent it. In addition, the victim had several opportunities to escape but did not. (Id. at p. 273.)
In Chancey, supra, 715 F.2d at pages 546-547, the court reversed the defendant's conviction for interstate kidnapping of a 17-year-old girl, based on inherently improbable circumstances. The court in Chancey concluded that, because the girl had "a wealth of opportunities" to escape and participated in consensual sex with the defendant, there was insufficient evidence the girl was transported and detained against her will. (Id. at p. 547.) The Chancey court concluded the girl's testimony was "inherently incredible, so contrary to the teachings of basic human experience, so completely at odds with ordinary common sense, that no reasonable person would believe it beyond a reasonable doubt." (Id. at p. 546.)
We find the same to be true regarding Christina's statements to Deputy Cramer about defendant's violent acts. It is plausible that defendant became enraged and physically violent when he discovered Christina was having an affair. Christina may have exaggerated some of his acts, but her statements supported reasonable findings that defendant nevertheless assaulted and battered Christina, including giving her two black eyes.
Defendant's reliance on Lang, supra, 11 Cal.3d 134, is also misplaced. In Lang, the defendant was convicted of sequentially molesting twin children. The children's testimony was not believable because each child used almost identical words to describe how she was molested and each child stated the molestation occurred at a party while the defendant was sitting in a chair in full view of six to 12 other party guests, none of whom saw either molestation. The Lang court concluded "a strong argument could have been made that the twins' testimony was inherently improbable and insubstantial." (Id. at p. 139.) The Lang court noted that "even the trial court described the alleged event as 'incredible.' The prosecution offered no corroborating testimony whatever; neither twin witnessed or even mentioned the other's molestation, and no medical testimony was introduced to establish the possibility of such assault." (Ibid.)
The factual circumstances in Lang differ significantly from those in the instant case. Furthermore, in the instant case there was physical evidence corroborating the nature of Christina's injuries and both defendant and Christina testified they got into several altercations, including physical fights, over Christina having an affair. There was conflicting evidence as to whether defendant acted in self-defense when defendant hit Christina. The circumstances described by Christina in her statements to Deputy Cramer were not improbable.
"While an appellate court can overturn a judgment when it concludes the evidence supporting it was 'inherently improbable,' such a finding is so rare as to be almost nonexistent. '"To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions." [Citations.]' [Citation.]" (People v. Ennis (2010) 190 Cal.App.4th 721, 728.) The instant case is not one of those rare cases in which there was either a physical impossibility that Christina's statements were true or that their falsity was apparent without resorting to inferences or deductions. There being no inherent improbability as to the majority of Christina's statements to Deputy Cramer, we conclude there was sufficient evidence to support defendant's convictions.
IV
SENTENCING
Defendant contends the trial court violated his due process rights by failing to advise him of his constitutional rights before deeming his prior conviction allegation admitted.
On September 15, 2010, while the jury was deliberating, the trial court asked the parties if defendant's prior conviction allegation should be addressed. Defense counsel requested that it not be addressed until the jury returned a verdict. Defense counsel confirmed that defendant waived a jury trial on the issue. The following day the jury returned a verdict and the parties stipulated to addressing the prior conviction allegation at the sentencing hearing.
During sentencing on October 29, 2010, defense counsel advised the court that defendant was "willing to admit his strike prior." The trial court responded, "All right. At this time he admits it." Later, during the sentencing hearing, defendant addressed the trial court but did not mention or challenge his attorney's representation that defendant had admitted the prior conviction allegation.
The sentencing minute order of October 29, 2010, states that defendant waived his constitutional rights and jury trial on the prior conviction allegation, and admitted the prior conviction allegation. The reporter's transcript of the sentencing hearing shows that defendant was not advised of his constitutional rights and he did not personally admit the prior conviction allegation. Rather, defendant's attorney told the court defendant intended to admit the prior conviction allegation. We reconcile this conflict in favor of the reporter's transcript: "Conflicts between the reporter's and clerk's transcripts are generally presumed to be clerical in nature and are resolved in favor of the reporter's transcript unless the particular circumstances dictate otherwise." (In re Merrick V. (2004) 122 Cal.App.4th 235, 249.)
--------
Defendant contends his admission of the prior conviction allegation was invalid because he was not advised of his constitutional rights to remain silent, confront adverse witnesses, and have a jury trial to establish the prior conviction allegation, as required under In re Yurko (1974) 10 Cal.3d 857, 863 and People v. Mosby (2004) 33 Cal.4th 353, 356 (Mosby). "[B]efore accepting a criminal defendant's admission of a prior conviction, the trial court must advise the defendant and obtain waivers of (1) the right to a trial to determine the fact of the prior conviction, (2) the right to remain silent, and (3) the right to confront adverse witnesses. (In re Yurko (1974) 10 Cal.3d 857, 863.) Proper advisement and waivers of these rights in the record establish a defendant's voluntary and intelligent admission of the prior conviction. [Citations.]" (Mosby, at p. 356.)
The court in Mosby noted that under Apprendi v. New Jersey (2000) 530 U.S. 466, 490, "the federal Constitution's right to a jury trial does not extend to the factual determination of whether a defendant has suffered a prior conviction. [Citation.] Nor does our state Constitution afford such a right. [Citations.] That right is purely statutory in origin. [Citations.] When trial is required by statute, we shall assume for the purpose of this discussion that a defendant's due process trial rights, at least under our state Constitution, encompass the rights to remain silent and to confront witnesses. [Citation.]" (Mosby, supra, 33 Cal.4th at p. 360.)
Here, defendant was not advised of his constitutional rights immediately before the court deemed admitted the prior conviction allegation. In Mosby, our high court addressed the following issue: "When, immediately after a jury verdict of guilty, a defendant admits a prior conviction after being advised of and waiving only the right to trial, can that admission be voluntary and intelligent even though the defendant was not told of, and thus did not expressly waive, the concomitant rights to remain silent and to confront adverse witnesses? The answer is 'yes,' if the totality of circumstances surrounding the admission supports such a conclusion." (Mosby, supra, 33 Cal.4th at p. 356.)
This court must thus look to the totality of circumstances leading to admission of defendant's prior conviction allegation in order to determine whether defendant made an admission voluntarily and intelligently, despite not being first advised of his constitutional rights to remain silent, confront adverse witnesses, and have a trial on the issue. (Mosby, supra, 33 Cal.4th at p. 365.) In considering the record in its entirety, we conclude defendant voluntarily and intelligently admitted the prior conviction allegation. Defense counsel's statement to the trial court in defendant's presence that defendant had waived his right to a jury trial on the prior conviction allegation, established that defendant was aware of his right to a trial on the allegation but chose to waive it. It was also likely defendant knew he had a right to testify at trial since he had exercised his right to testify at the trial on the substantive offenses. He similarly was aware of his right to confront and cross-examine witnesses, as he exercised his confrontation right during the jury trial.
Furthermore, defendant had previous encounters with the criminal judicial system. He had previously sustained two misdemeanor convictions for resisting, delaying, or obstructing an officer, and had a felony conviction for making criminal threats, which was the basis of the prior conviction allegation in the instant case. According to the court in Mosby, defendant's "'prior experience with the criminal justice system' is, as the United States Supreme Court has concluded, 'relevant to the question [of] whether he knowingly waived constitutional rights.'" (Mosby, supra, 33 Cal.4th at p. 365, quoting Parke, v. Raley (1992) 506 U.S. 20, 37.) This is because "previous experience in the criminal justice system is relevant to a recidivist's '"knowledge and sophistication regarding his [legal] rights."'" (Mosby, at p. 365, quoting Parke, at pp. 36-37.)
Defendant complains that he did not personally admit the prior conviction allegation. Rather, his attorney advised the trial court that defendant intended to admit it. But he was present when his attorney informed the court of his admission and did not disagree or object. Furthermore, defendant had an opportunity to raise his objection when he addressed the court during sentencing but did not do so. The totality of circumstances surrounding admission of defendant's prior conviction allegation supports the conclusion that, even though the defendant was not advised of, and thus did not expressly waive, the concomitant rights to have a jury trial, remain silent, and confront adverse witnesses, defendant voluntarily and intelligently admitted his prior conviction allegation. (Mosby, supra, 33 Cal.4th at p. 356.)
V
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Codrington
J.
We concur:
McKinster
Acting P. J.
Miller
J.