Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA072097. Arthur Jean, Judge.
Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
Raymond Nillis Jones (appellant) entered a plea of guilty to selling or transporting a controlled substance in violation of Health and Safety Code section 11352, subdivision (a). The trial court sentenced him to the low term of three years, doubled to six years due to appellant’s prior strike conviction within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d).
The trial court struck two other prior strike convictions, making appellant’s case only a two-strike case. The clerk’s transcript mistakenly categorizes the three-year term as the upper term.
Appellant appeals on the ground that his sentence must be vacated and the case remanded to the trial court because he did not enter a plea of guilty or nolo contendere to any offense charged by the prosecution. We affirm.
FACTS
On October 20, 2006, Officer Shea Robertson of the Long Beach Police Department was assigned to the narcotics team. On that evening he was near a liquor store on Atlantic Avenue conducting a street narcotics investigation using a paid confidential informant. He searched the informant and ensured he had no money or contraband on his person. He provided the informant with $20 of prerecorded “buy money” and told him to try to purchase narcotics at the liquor store. After Officer Robertson dropped off the informant, he noticed a white Buick parked in the store’s parking lot. The occupants were later identified as appellant and a Mr. Smith. The informant walked up to the car and asked where he could “pick up” “some stuff.” Appellant told him to get in, and they would take the informant to a place. The informant refused. Eventually, after receiving permission from Officer Robertson, the informant gave appellant the money and took appellant’s wallet for collateral, as appellant had suggested. The informant obtained appellant’s identifying information from the wallet.
Because there was no trial, the facts are gleaned from the transcript of the preliminary hearing.
The Buick drove away and returned approximately 10 minutes later. Appellant got out of the Buick and jogged over to the informant. Appellant placed a small, off-white, rock-like substance on top of a short pole and said, “Look.” The informant picked up the rock and returned appellant’s wallet. The informant gave the rock to Officer Robertson. Appellant and Mr. Smith drove away, and the Buick was stopped by other officers. A forensic chemist tested the rock and determined that it consisted of .41 grams of cocaine.
DISCUSSION
I. Proceedings Below
On the day after the jury was sworn, appellant told the court that he would like to resolve the case that day. The trial court had already informed appellant that the best offer was six years. Appellant requested that the six-year sentence be comprised of the low term of three years with three 1-year enhancements so that he could serve half time. The trial court refused appellant’s request. The following exchange then took place:
“THE DEFENDANT: Okay. Is it possible I can get a 90 day stay so I can finish my medical here in county?
“THE COURT: Yes.
“THE DEFENDANT: Okay.
“THE COURT: If you enter a plea of guilty or no contest, over [the prosecutor’s] objection, I am going to commit you to prison for six years. I will give you—put over sentencing for about 90 days. In prison you will earn the right to be on parole at some point. Your period of parole will be for three years. While on parole if you follow the rules, you will have no further problems. If you don’t, they could take you back and make you serve another year as a parole violator. If you are not a citizen of this country, this conviction will result in deportation, denial of naturalization, denial of the right to come back into the country if you leave it. You are going to have to pay a $200 restitution fine, a $50 laboratory fee, $200 parole revocation fee, a $20 security fee. You have to register as a narcotic offender and keep that registration up to date for five years upon your release. So you understand these things?
“THE DEFENDANT: Yes.
“THE COURT: You have a right to a trial by jury, to confront and cross-examine witnesses, to remain silent, and to defend yourself. Do you understand those rights?
“THE DEFENDANT: Yes.
“THE COURT: Give up those rights?
“THE DEFENDANT: Yes.
“THE COURT: To the last remaining—to the charge, to the last remaining prior, all of the 667.5 (b) priors, the last remaining strike prior, how do you plead?
“THE DEFENDANT: This one right here?
“THE COURT: Yes.
“THE DEFENDANT: Guilty, I guess.
“THE COURT: Counsel, do you join in the waivers, approve of the plea and stipulate to a factual basis based on your reading of the police reports.
“MR. WINDON [defense counsel]: Yes. Pursuant to [People v. West (1970) 3 Cal.3d 595].
“THE COURT: I find a knowing, intelligent and voluntary waiver and plea. It is accepted. And I intend at time of sentencing to commit you to prison for six years.” (Italics added.)
The trial court then set sentencing for 90 days from the taking of the plea, and defense counsel agreed.
At the sentencing proceeding, the following exchange took place as the trial court began to pronounce sentence:
“THE DEFENDANT: Excuse me, sir.
“MR. WINDON: Your Honor, for some reason—Mr. Jones, the last time you were here, you pled to six years.
“THE DEFENDANT: No, I did not.
“THE COURT: It’s my recollection. It’s yours. Was Ms. Saba here?
“MS. SABA [the prosecutor]: No, I was not, but my notes reflect that, in fact, he pled to six years.
“THE COURT: Credit for time served is
“THE DEFENDANT: Excuse me, Your Honor.
“THE COURT: Yes, sir.
“THE DEFENDANT: But I didn’t plead. Me and you were speaking of trying to get rid of the case and at which time you had told me that the D.A. wanted eight years and that you would settle for six at which I would have to do five. And I came to you and asked you if you would give me three years with three one-year enhancements to get my half time and you said no, that you wanted me to do five years. After that, I’ve never been given any rights. You told the bailiff to take the jury and send them back out into the audience. And then you got up and you left and you told the lawyers they could leave. And at that time, I said, ‘Well, can I have a stay of sentencing?’ And I was asking what was happening. He wouldn’t tell me nothing. The D.A. wouldn’t tell me anything. Nobody said anything about my rights. I was not read rights as far as giving up my jury trial, which I never did.
“THE COURT: Credit for time served is 234 actual, 116 conduct. It’s 350 days. $200, $20, $200. Forthwith concurrent commitment. The registration upon release from custody. Testing, DNA testing. Case number BA254472, probation terminated. Good luck to you, sir.
“THE DEFENDANT: Excuse me. So I don’t get to plead or anything? I just get my rights ran over with, sir?
“THE COURT: Mr. Jones, you did. You’re playing a game with me.
“THE DEFENDANT: I am not playing a game with you, your Honor. I have action of taking this up on appeal.”
At this time the proceedings were adjourned.
II. Appellant’s Argument
Appellant contends he made no clear, definite, and unconditional admission of guilt to the charged offense. During the taking of the plea, the trial court did not inform appellant he was pleading guilty to a violation of Health and Safety Code section 11352, subdivision (a) or any other offense. As a result, he made no admission of guilt to any substantive offense as required by Penal Code section 1018 and relevant case law. According to appellant, his right to due process was violated by his being sent to prison for a crime of which he was never convicted, and his sentence must be vacated and the case remanded for further proceedings.
Penal Code section 1018 provides: “On application of the defendant at any time before judgment . . . the court may . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. . . . This section shall be liberally construed to effect these objects and to promote justice.”
III. Relevant Authority
When an accused enters a guilty plea, the record must contain evidence on its face that the accused was aware of, or made aware of, his or her right to confrontation, to a jury trial, and against self-incrimination as well as the nature of the charge and the consequences of the plea. (In re Tahl (1969) 1 Cal.3d 122, 132; see also Boykin v. Alabama (1969) 395 U.S. 238, 241-244.) For a plea to be valid, the defendant must have waived his or her rights voluntarily, knowingly, and intelligently. (Brady v. United States (1970) 397 U.S. 742, 748.)
IV. Appellant’s Plea Valid
The record of appellant’s sentencing clearly shows that his memory of the prior proceeding was faulty. In addition, his claim that he made no admission of guilt to a substantive offense is without merit. Under the totality of circumstances in this case, appellant was adequately informed of the charge against him. Therefore, when he pleaded guilty to “the charge,” he pleaded guilty to the violation of Health and Safety Code section 11352, subdivision (a).
In People v. Howard (1992) 1 Cal.4th 1132, the California Supreme Court held, in the context of determining the validity of an admission of a prior conviction, that the ultimate question was whether “considering the totality of the relevant circumstances, . . . defendant’s admission of the prior conviction was voluntary and intelligent.” (Id. at p. 1180.) This totality-of-the-circumstances test also applies when a defendant challenges the validity of a guilty plea to a substantive offense. (People v. Allen (1999) 21 Cal.4th 424, 438-439, fn. 4.)
A plea may be involuntary either because (a) the accused does not understand the nature of the constitutional protections that he or she is waiving or (b) because he or she has such an incomplete understanding of the charge that the plea cannot stand as an intelligent admission of guilt. (Henderson v. Morgan (1976) 426 U.S. 637, 645 & fn. 13 (Henderson).) Without adequate notice of the nature of the charge, or proof that the defendant in fact understood the charge, the plea cannot be voluntary. (Smith v. O’Grady (1941) 312 U.S. 329, 334; see also Henderson, supra, at p. 645, fn. 13.)
In Henderson, the high court stated that a plea cannot be voluntary in the sense of an intelligent admission unless the defendant received “‘real notice of the true nature of the charge against him.’” (Henderson, supra, 426 U.S. at p. 645.) In that case, a charge of second-degree murder was never formally made, and it remained unexplained at the time of the plea. (Id. at pp. 645-646.) The court rejected the State’s argument that its ruling would lead to “countless collateral attacks on judgments entered on pleas of guilty.” (Henderson, supra, at p. 646.) The court stated that, even where a record does not contain an express representation that a charge has been explained to the defendant, “it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” (Id. at p. 647.) In re Tahl reveals the same reasoning, stating, “where . . . the accused has been present at voir dire and has heard the indictment read and the consequences in terms of penalty discussed, the court would not necessarily be expected to repeat each of those matters verbatim” at the taking of the plea. (In re Tahl, supra, 1 Cal.3d at p. 132.)
The record in this case shows that appellant was informed at the beginning of his preliminary hearing on November 7, 2006, that he was charged with only one count—sale, transportation, and offer to sell cocaine. Appellant underwent the preliminary hearing and heard the testimony describing the nature of his acts that led to the charge. At the end of the preliminary hearing he and his codefendant were held to answer for “sale of cocaine base, also, transportation, actually. I therefore order that they both be held to answer for that offense.” A one-count information was filed on November 22, 2006, charging appellant with “sale/transportation/offer to sell” a controlled substance in violation of Health and Safety Code section 11352, subdivision (a), and appellant was arraigned on the charge. Appellant pleaded not guilty to the charge. On March 8, 2007, voir dire commenced in appellant’s presence, and we may assume that the trial court read the charge to the jury. (Evid. Code, § 664; People v. Sullivan (2007) 151 Cal.App.4th 524, 549-550 [we must presume trial court regularly performed its lawful duty].) Appellant had at least several days to ponder the plea to the charge, since the record shows that the trial court informed him that the minimum was a second strike case with a sentence of six years on March 8, 2007, and appellant accepted the plea bargain on March 12, 2007.
Under these circumstances, we conclude appellant was adequately informed of the nature of the charge against him, and he voluntarily, knowingly, and intelligently pleaded guilty to that offense. The record reflects appellant’s awareness and understanding of his rights and the consequences of his actions. We observe that appellant was not unfamiliar with the criminal justice system, having suffered nine felony convictions and six misdemeanor convictions since 1969. His argument is without merit.
DISPOSITION
The judgment is affirmed.
We concur: BOREN P. J., ASHMANN-GERST J.