Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. No. CRM000321, Brian L. McCabe, Judge.
Meredith Fahn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
A jury convicted appellant Marco Antonio Hernandez of numerous counts related to a confrontation with his companion, Jessica Solis, including possession of a firearm by a felon, in violation of Penal Code section 12021, subdivision (a)(1). After admitting the enhancements, he was sentenced to a prison term of seven years four months.
All further statutory references are to the Penal Code unless otherwise stated.
Hernandez argues the trial court improperly instructed the jury and it erred by failing to give the advisements required by the Boykin/Tahl line of cases when he admitted the truth of the enhancements. We will affirm the judgment.
Boykin v. Alabama (1969) 395 U.S. 238 (Boykin); In re Tahl (1969) 1 Cal.3d 122 (Tahl).
FACTUAL AND PROCEDURAL SUMMARY
Hernandez and Solis lived together at various residences, sometimes alone and sometimes with other people. On April 25, 2009, the two got into a heated argument. During the argument, Hernandez struck Solis in the back with the buckle end of a belt, leaving a large bruise. Solis claimed she was accidentally struck with the belt buckle, as Hernandez was attempting to strike a vehicle on which she was leaning. The argument escalated. A neighbor testified she observed Hernandez striking Solis with an object that appeared to be a steel pipe.
When the police arrived at the scene, Hernandez fled on a bicycle, but was stopped a few blocks away. He was arrested without further incident. A search incident to the arrest resulted in the discovery of a folding knife locked in the open position concealed in Hernandez’s rear pants pocket. Solis claimed the knife was hers and that Hernandez took it away from her during the argument.
Officers later searched the area where the neighbor saw Hernandez striking Solis with a metal object. A shotgun, with the stock removed, was discovered in a nearby flower bed. The shotgun was almost completely buried under dirt, but enough was visible to allow officers to locate it. When an officer showed the object to the neighbor, she positively identified it as the object with which Hernandez had struck Solis. She explained that when the event occurred, Hernandez had his back to her. She could see only the barrel of the firearm and was unable to identify it as a firearm at the time of the incident.
Hernandez was charged with possession of a firearm by a felon (§ 12021, subd. (a)(1)), possession of a prohibited weapon (§ 12020, subd. (a)), carrying a concealed dirk or dagger (§ 12020, subd. (a)(4)), corporal injury to a cohabitant (§ 273.5, subd. (a)), possession of a deadly weapon with the intent to commit an assault (§ 12024), and resisting arrest (§ 148, subd. (a)). In addition, Hernandez was charged with enhancements for (1) having a prior conviction that constituted a strike within the meaning of section 1170.12 and (2) having served a prior prison sentence within the meaning of section 667.5.
The jury found Hernandez guilty as charged, with the exception that he was found not guilty of felony corporal injury to a spouse (§ 273.5, subd. (a)), but instead was found guilty of the lesser included offense of misdemeanor battery on a cohabitant (§ 243, subd. (e)(1)). Hernandez admitted the enhancements. He was sentenced to a total term of seven years four months in prison.
DISCUSSION
I. Instruction on Constructive Possession
Analogizing to drug possession cases, Hernandez argues that the trial court had a sua sponte duty to instruct the jury that he could have possessed the shotgun constructively. He asserts that in the absence of such an instruction, there was insufficient evidence to support the verdict that he was guilty of possession of a firearm by a felon and possession of an illegal weapon (sawed-off shotgun).
The premise on which this argument is based is a belief that the shotgun was found in at least two pieces. According to Hernandez, the evidence at trial established that he used only the barrel of the shotgun to strike Solis. The remainder of the weapon, including the firing mechanism, was not attached to the barrel. Because there was no evidence that he held or possessed the remainder of the shotgun (including the firing mechanism), to convict him the jury would have to find that he held not only the barrel of the shotgun, but he also constructively possessed the remainder of the weapon. Simply possessing the barrel of the weapon would not constitute possession of a firearm because the statutory definition requires that the firearm must, at a minimum, appear to be able to fire a projectile or a number of projectiles. (§ 12020, subd. (c)(21); People v. Nelums (1982) 31 Cal.3d 355, 360.) The barrel of a shotgun alone does meet this requirement.
The error in Hernandez’s argument is that he assumes the gun was in two pieces, and that he held only the barrel of the shotgun. We read the record differently.
The neighbor, Kristin Weathers, described the object with which Hernandez was hitting Solis as a metal pole, not a firearm. Indeed, she described the appearance of the object as similar to the shaft of a golf club. The evidence to support the charge, however, was provided by Merced Police Officer Frank Bazzar.
Bazzar testified that he responded to the scene after receiving a request for assistance. After Hernandez was arrested, Bazzar spoke with Weathers. He then searched the area where the assault had occurred according to Weathers’s description. During the search, he located an item that he believed was what Weathers had seen. The object was covered by dirt except for six to eight inches that was visible. The visible portion appeared to be a metal rod. When Bazzar removed the item from the dirt, he discovered the item was a “shotgun that had the butt stock removed.” Bazzar confirmed the weapon would fire.410 shotgun shells.
Bazzar then showed Weathers the shotgun. When he did so, Bazzar “kind of hid the breech portion and the handle portion of the shotgun, only exposing the barrel portion to her.” Weathers identified the shotgun as the object with which Hernandez had hit Solis.
Hernandez’s confusion comes from the phrase “shotgun that had the butt stock removed.” He interprets the phrase as meaning the shotgun was in two pieces, with the barrel being separate from the rest of the firearm. We understand the phrase differently. Bazzar was describing a complete shotgun, except that a portion of the stock or handle (the portion intended to be rested on one’s shoulder when the gun is fired) was removed to shorten the weapon. The stock consists of the butt, comb, grip, and forearm. ( [as of June 3, 2011].) Bazzar testified that only the butt portion of the stock was removed. From this testimony, the only conclusion we can draw is that the remainder of the weapon, including the firing mechanism, was intact. Since there is no suggestion in the record that when Bazzar found the shotgun it was in two pieces, or the shotgun was missing the firing mechanism, our conclusion is supported by the record.
It is inconceivable that defense counsel would not have argued that Hernandez used only the barrel of the shotgun to strike Solis if there were any evidence to support the claim. The only conclusion that can be reached is that there was no such evidence. Accordingly, since the jury concluded that Hernandez used the barrel of the shotgun to strike Hernandez, he necessarily possessed a firearm within the meaning of sections 12021 and 12020.
II. Failure to Obtain Boykin/Tahl Waiver Before Taking Admission to Enhancements
After the jury returned with its verdict, defense counsel informed the trial court that Hernandez would be admitting the two enhancements (prior conviction constituting a strike and prior prison term). The trial court then confirmed with Hernandez that he had the right to a jury or court trial on the enhancements. Hernandez stated he understood, waived the right to a trial, and then admitted both enhancements were true.
Hernandez argues that the trial court erred in accepting his admission because it failed to inform him of, and obtain a waiver of, all of the rights required under the Boykin/Tahl line of cases.
In Boykin, the Supreme Court held that prior to taking a guilty plea from a defendant, the trial court must confirm that the defendant understands, and waives, his right to a jury trial, his right against self-incrimination, and his right to confront his accusers. (Boykin, supra, 395 U.S. at p. 243.) The California Supreme Court held in Tahl that a defendant must, on the record, be advised of his right to confront witnesses, his right to a jury trial, his right against self-incrimination, the nature of the charge against him, and the consequences of his plea. The defendant must personally waive these rights before pleading guilty. (Tahl, supra, 1 Cal.3d at p. 132.) These requirements were extended to an admission by a defendant that he had suffered a prior conviction five years later in In re Yurko (1974) 10 Cal.3d 857, 863.
Hernandez was not advised of his right to confront witnesses and his right prohibiting compulsory self-incrimination before admitting the enhancements. The People concede this was error, but claim the error was harmless. This issue was addressed in People v. Mosby (2004) 33 Cal.4th 353 (Mosby).
Mosby was arrested for violating Health and Safety Code section 11352, subdivision (a), and it was alleged he had suffered a prior conviction for possession of a controlled substance within the meaning of Health and Safety Code section 11370, subdivisions (a) and (c). The jury returned a verdict of guilty on the charge of violating Health & Safety Code section 11352. Mosby then waived his right to a jury trial on the enhancement and admitted the enhancement was true. Mosby argued that the failure to advise him of the right to confront witnesses and the right prohibiting compulsory self-incrimination before he admitted the enhancements required reversal.
The Supreme Court rejected the argument, concluding that the “totality of the circumstances” supported the conclusion that Mosby’s admission was voluntary and intelligent, despite the failure to give him complete advisements. (Mosby, supra, 33 Cal.4th at pp. 356, 365.) The Supreme Court observed that Mosby had just undergone a jury trial where he did not testify, even though his codefendant did, thus he must have been aware of the right against compulsory self-incrimination. (Id. at p. 364.) Also, Mosby was represented by counsel, who had confronted witnesses against him, thus he would be aware of the right to confront witnesses. (Ibid.) Finally, the Supreme Court noted that a defendant’s prior experience with the criminal justice system also was relevant to a defendant’s sophistication and knowledge of his legal rights. (Id. at p. 365.) The Supreme Court observed that Mosby had pled guilty to the prior charge, at which time he would have received the Boykin/Tahl advisements. (Ibid.)
The circumstances in this case are remarkably similar. Hernandez just had undergone a jury trial at which he was represented by counsel. He did not testify, thus demonstrating he understood the right prohibiting compulsory self-incrimination. Indeed, the trial court confirmed with defense counsel that the matter had been discussed with Hernandez and Hernandez had chosen not to testify. Defense counsel had just confronted the prosecution’s witnesses, and thus Hernandez must have been aware of the right to confront witnesses. Finally, the report of the probation officer revealed that Hernandez had extensive experience with the criminal justice system, with no fewer than nine previous cases filed against him. At least five of the cases (three cases were juvenile cases, and it is unclear if the allegations were found true) resulted in convictions (it is unclear whether the convictions were the result of pleas or guilty verdicts). In addition, Hernandez was charged with violating parole on six occasions.
It is logical for us to infer that someone with Hernandez’s experience in the criminal justice system, and who had just undergone a jury trial, understood his right to a jury trial, to confront the witnesses against him, and his right against compulsory self-incrimination. We thus conclude that, under the totality of the circumstances, Hernandez’s admission to the enhancements was made intelligently and voluntarily.
DISPOSITION
The judgment is affirmed.
WE CONCUR: DETJEN, J., FRANSON, J.