Opinion
E064426
09-20-2017
THE PEOPLE, Plaintiff and Respondent, v. ESTEVAN ARNULFO GARCIA, Defendant and Appellant.
Robert E. Boyce and Benjamin Kingston, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Steve Oetting and Warren J. Williams, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1404531) OPINION APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed in part, reversed in part with directions. Robert E. Boyce and Benjamin Kingston, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Estevan A. Garcia of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and found true the allegation that Garcia personally inflicted great bodily injury on the victim (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)). Subsequently, Garcia admitted to nine alleged enhancements relating to prior convictions. The trial court sentenced Garcia to an indeterminate term of 25 years to life, plus five years for each of three serious felony priors (§ 667, subd. (a)).
Further undesignated statutory references are to the Penal Code. --------
On appeal, Garcia contends that the judgment must be reversed with respect to the prior conviction enhancements, because the trial court failed to obtain proper waivers of his trial rights—sometimes referred to as "Boykin-Tahl rights"—before he admitted the prior convictions. We agree, and therefore vacate Garcia's sentence and remand for a new trial solely on the prior conviction enhancements, affirming the judgment in all other respects.
I. FACTUAL AND PROCEDURAL BACKGROUND
On September 4, 2014, after a trial, during which Garcia did not testify in his own defense, the jury returned a verdict of guilty on one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), and found true the allegation that Garcia personally inflicted great bodily injury on the victim (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)). On December 12, 2014, Garcia admitted to three prison prior convictions (§ 667.5, subd. (b)), three serious felony prior convictions (§ 667, subd. (a)), and three strike prior convictions (§ 667, subds. (c) & (e)(2)). These enhancements were each predicated on one of three alleged previous felony convictions; one from 1995, the second from 1997, and the most recent from 2012. The trial court sentenced Garcia to an indeterminate term of 25 years to life, plus five years for each of the three serious felony priors.
Prior to trial, the trial court granted Garcia's motion to bifurcate trial of the alleged prior convictions, and Garcia waived his right to a jury trial with respect to those enhancements. With respect to that waiver, Garcia was advised by defense counsel as follows: "Mr. Garcia, as we discussed earlier this morning, you have a right to have a jury trial for each and every one of these charges that you're facing, including but not limited to your prison priors, strike priors, and what are called nickel priors, 667, subdivision (a) priors. You understand that what we're asking you is to waive your right to a jury trial on all of those particular priors and have those—the truth of those convictions be determined at a hearing in the future before the judge rather than before the jury. Do you understand that?" Garcia responded: "Yes sir." Defense counsel further inquired: "Do you understand that, you're giving up—by asking for that you're giving up your right to have a jury make those determinations. Are you okay with that?" Garcia again responded: "Yes sir."
On November 7, 2014, the trial court granted Garcia's motion to substitute in newly retained counsel. On December 12, 2014, at the posttrial hearing set for a court trial on the bifurcated priors, defense counsel informed the court that Garcia was going to instead admit all of the prior conviction allegations. Without giving Garcia any further advisements, the trial court asked him whether he admitted to each of the priors; he did. After Garcia admitted the priors, his counsel agreed that there was a factual basis for the admissions, and stated "And this is pursuant to a written waiver also." The written waiver referred to—dated December 9, 2014, and filed in the trial court on December 12, 2014, apparently after the hearing— reads as follows: "After a long discussion with my attorney and my careful consideration over the weekend I have decided to admit my prior convictions and waive a formal trial on my prior criminal convictions." (Some capitalization omitted.)
II. DISCUSSION
As noted, Garcia contends he was not fully appraised of his Boykin-Tahl rights, and argues the true findings on his prior conviction enhancements must be reversed on that basis. The People concede that the trial court failed to fully advise Garcia of all of his rights, but argue that the totality of the circumstances demonstrate that his admissions were nevertheless voluntary and intelligent, so no reversal is required. For the reasons discussed below, we agree with Garcia.
A. Applicable Law.
A criminal defendant who pleads guilty waives three constitutional rights: (1) the privilege against self-incrimination, (2) the right to a jury trial, and (3) the right to confront one's accusers. A waiver of these fundamental constitutional rights must be made knowingly, intelligently, and voluntarily, and such a waiver will not be presumed from a silent record. (Boykin v. Alabama (1969) 395 U.S. 238, 243.) In California, the same rule applies to admitting a prior conviction or prior prison term allegation. (In re Yurko (1974) 10 Cal.3d 857, 863.)
The California Supreme Court in In re Tahl (1969) 1 Cal.3d 122, 132-133 held that the trial court must advise a defendant, on the record, of his or her rights against self-incrimination, to a jury trial, and to confrontation, and the defendant must waive these rights, on the record, before the trial court accepts a guilty plea. (Ibid.) It later clarified that the requirement of such advisements is a matter of the court's own supervisory powers and not a matter of federal constitutional law. (People v. Howard (1992) 1 Cal.4th 1132, 1175.) Therefore, even when a trial court fails to advise a defendant of his or her constitutional rights, a guilty plea "is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances." (Ibid.) Where "the transcript does not reveal complete advisements and waivers, the reviewing court must examine the record of 'the entire proceeding' to assess whether the defendant's admission of the prior conviction was intelligent and voluntary in light of the totality of the circumstances." (People v. Mosby (2004) 33 Cal. 4th 353, 361 (Mosby).
In Mosby, the California Supreme Court distinguished between two types of cases in which defendants admitted prior convictions after a jury trial on the substantive charges: (1) truly silent record cases, those in which the record showed "no express advisement or waiver of the Boykin-Tahl rights before a defendant's admission of a prior conviction" (Mosby, supra, 33 Cal.4th at p. 361); and (2) incomplete Boykin-Tahl advisement cases, those in which defendants had been advised of their right to a jury trial, but not of the other two constitutional rights. (Mosby, supra, at pp. 362-364.) Mosby teaches that, with regard to truly silent record cases, "[it] cannot [be inferred] that in admitting the prior the defendant has knowingly and intelligently waived that right as well as the associated rights to silence and confrontation of witnesses." (Id. at p. 362.) In incomplete advisement cases, such an inference may sometimes be made. But the incomplete advisement may be held harmless only if the record affirmatively shows the admissions were voluntary and intelligent under the totality of the circumstances. (Id. at pp. 363-364.)
In Mosby, "immediately after the jury found defendant guilty . . . [he] was told he had a right to a jury trial on the prior conviction allegation. (Mosby, supra, 33 Cal.4th at p. 364.) He thereafter admitted the prior conviction. (Id. at pp. 357-359.) The Mosby court reasoned that "[the] defendant, who was represented by counsel, had just undergone a jury trial at which he did not testify, although his codefendant did. Thus, he not only would have known of, but had just exercised, his right to remain silent at trial, forcing the prosecution to prove he had sold cocaine. And, because he had, through counsel, confronted witnesses at that immediately concluded trial, he would have understood that at a trial he had the right of confrontation." (Id. at p. 364.) In addition, the Mosby court pointed out that "'a defendant's prior experience with the criminal justice system' is . . . 'relevant to the question [of] whether he knowingly waived constitutional rights.'" (Id. at p. 365, quoting Parke v. Raley (1992) 506 U.S. 20, 37; see also United States v. Dawson (9th Cir. 1999) 193 F.3d 1107, 1110-1111.) On that basis, Mosby concluded that the "defendant voluntarily and intelligently admitted his prior conviction despite being advised of and having waived only his right to jury trial." (Mosby, supra, at p. 365, fn. omitted.)
B. Analysis.
The present case falls within the second category of cases discussed in Mosby, in which the defendant was advised of his right to a jury trial, but not of his rights against self-incrimination and to confrontation. (Mosby, supra, 33 Cal.4th at pp. 362-364.) We therefore must determine, based on the totality of circumstances, whether Garcia's admissions of his prior convictions were voluntary and intelligent.
We conclude that the facts here are sufficiently different from those in Mosby that we cannot say with any assurance that Garcia truly knew of and voluntarily waived his Boykin-Tahl rights. Unlike Mosby, where the incomplete advisement and admission occurred immediately after the jury verdict, here Garcia's admission was not taken until three months later. This is not as long as the seven months found significant by the Court of Appeal in People v. Lloyd (2015) 236 Cal.App.4th 49, 59 [distinguishing Mosby].) Nevertheless, it is a substantial amount of time.
The procedural posture of the present case at the time when Garcia made his admissions also differs in a significant respect from Mosby. Before trial of his substantive offense, Garcia waived his right to have a jury determine whether the prior conviction allegations were true, after being advised of that right. The bifurcated trial on his prior convictions was, therefore, to be a court trial. Nothing in the record establishes that Garcia was ever advised—in this case, or in any prior case—that his rights against self-incrimination and to confrontation applied not only in the setting of a jury trial, but also in a court trial. The basis for the inference that is a lynchpin of the analysis in Mosby—that defendant had just exercised the same rights in the trial of his substantive offenses, so he knew he would have them in a trial on his prior convictions—is therefore lacking here.
Furthermore, those cases which have upheld admissions in the face of defective advisements involve cases where the trial judge made some, even if ultimately inadequate, effort to inform the defendant of his or her rights. In Mosby, for example, immediately before taking the defendant's admissions, the trial court explicitly advised him that by doing so he was giving up the right to have either a jury or the court make the determination. (Mosby, supra, 33 Cal.4th 353, 358.) Here, the trial court never made any advisements whatsoever. Instead, it responded to defense counsel's representation that Garcia was prepared to admit to all the prior convictions by immediately asking Garcia whether he admitted or denied each prior, without any attempt by the court to advise him of his rights. The trial court also made no effort, before taking Garcia's admissions, to ascertain whether he had been otherwise advised of his rights (for example, by means of a written waiver that, unlike the one actually signed by Garcia and filed in this case, adequately described the rights being waived). (See People v. Christian (2005) 125 Cal.App.4th 688, 698 ["[W]e will not presume appellant was informed of his Boykin-Tahl rights in [his] conversation with his counsel."].)
In briefing and at oral argument, the People emphasize that this case is not Garcia's first contact with the criminal justice system. His criminal history includes felony convictions in 1995, 1997, and 2012, each of which apparently involved him pleading guilty, rather than proceeding to trial. Nevertheless, our record is silent about exactly how or when Garcia was apprised of his trial rights in connection with his previous convictions. Moreover, even the most recent of these convictions is from years before the proceedings at issue in this appeal. We do not find it appropriate to infer, on these facts, that Garcia is so sophisticated a participant in the criminal justice system that he understood his rights as they apply to this case.
In short, based on the totality of the circumstances, on this record we cannot conclude with assurance that Garcia knowingly and voluntarily waived his rights. The trial court never advised him of his rights. The remedy for this error is reversal as to the prior conviction enhancements and remand for a new trial limited to that issue. (People v. Moore (1992) 8 Cal.App.4th 411, 422.) Since Garcia waived his right to a jury trial regarding the prior conviction allegations, the new trial shall be heard by the court, not a jury. We emphasize that nothing in this opinion should be construed to prohibit Garcia from again admitting the prior convictions, once he is fully apprised of his rights by the court.
III. DISPOSITION
We reverse the judgment in part, as follows: We vacate Garcia's sentence and remand for a new court trial of the prior conviction allegations and resentencing. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.