Opinion
D072506
06-11-2018
THE PEOPLE, Plaintiff and Respondent, v. DAMIAN CANOLE, Defendant and Appellant.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. SCD270634, SCD255426) APPEAL from a judgment of the Superior Court of San Diego County, Esteban Hernandez, Judge. Affirmed. Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
BACKGROUND
The facts of the underlying offense are not in dispute. On January 5, 2017, in Yuma, Arizona, Cynthia Arias left her car running while she went back into her house to retrieve items she had left behind. When she returned, her car was gone. Two days later, Arias received a phone call from defendant Damian Canole. Defendant was crying and identified himself as the man who stole her car and offered reasons why he did so. Arias told defendant that she would not press charges if he returned the car. Defendant said he would return the car but did not do so. Approximately six days later, police located the car in San Diego. Defendant was in the drivers' seat and a woman was in the front passenger seat. He told police that he got the car from Arias.
In a complaint filed by the San Diego District Attorney's Office, defendant was charged with one felony count of taking and driving a vehicle in violation of Vehicle Code section 10851, subdivision (a) and one felony count of receiving a stolen vehicle in violation of Penal Code section 496d. The complaint also alleged defendant had sustained two strike priors within the meaning of Penal Code sections 667, subdivision (b) through (i), 1170.12 and 668.
On March 7, 2017, defendant's probation in case No. SCD255426 was revoked. In that case, defendant was convicted of a misdemeanor violation of Health and Safety Code section 11377, subdivision (a). That matter was ordered to trail this case.
On April 26, 2017, defendant waived a jury trial on the alleged priors. At that time, there were no admonitions with respect to his rights against self-incrimination or confrontation. A jury trial on the underlying charges followed. The jury returned a verdict finding defendant guilty of theft of Arias's vehicle.
After the jury was discharged, the court inquired as to whether there would be an admission of the priors or a request for a court trial on the priors. Defense counsel stated there would be an admission. The parties agree there were no admonitions with respect to his right to a jury trial, privilege against self-incrimination, confrontation of the accusers, or the penal consequences of admitting the convictions.
Defendant was sentenced on June 16, 2017. His counsel's motion to strike the priors was denied. Probation also was denied. Defendant was sentenced to the upper term of three years on the auto theft charge, doubled to six years for the strike priors, and received a total of 273 days of credits. On the misdemeanor case trailing the current offense, he was sentenced to two years to run concurrent to the instant offense. Credits were awarded. A timely notice of appeal was filed.
ANALYSIS
The Attorney General agrees the court did not expressly advise defendant of his constitutional rights to a jury trial, confrontation and right against self-incrimination, and the consequences of his admission of the two priors, as required by In re Yurko (1974) 10 Cal.3 857, and as discussed in People v. Howard (1992) 1 Cal.4th 1132, 1179; Boykin v. Alabama (1969) 395 U.S. 238, 243-244. However, the People rely upon the argument that reversal is not required if the record affirmatively shows the admission is voluntary and intelligent under the totality of circumstances test articulated in People v. Cross (2015) 61 Cal.4th 164, 179-181.
In People v. Cross, the court reiterated the rule pronounced in People v. Mosby (2004) 33 Cal.4th 353, 361, that in applying the totality of circumstances test the reviewing court must review the entire record, not just the record of the plea colloquy. The court further stated that previous experience in the criminal justice system is relevant to a recidivist's knowledge and sophistication regarding his or her legal rights. (People v. Cross, at pp. 179-180.) Defendant does not dispute application of the totality of circumstances test. Rather, defendant urges the totality of circumstances test does not establish defendant's admission was knowing and voluntary.
Defendant requests this court take judicial notice of 191 postMosby decisions, which are mostly unpublished. The request is denied.
We find defendant's experience in the criminal justice system, and in particular, the constellation of the trial on the underlying charges and his probation revocation, warrants a conclusion that as to the admissions, his waiver of jury trial, confrontation, and self-incrimination were made knowingly and intelligently.
According to defendant's probation report in this case, defendant pleaded guilty to at least eight cases filed against him between 1993 and 2016. He also pleaded guilty to the crimes for which he was on probation while committing the instant offenses. (Case No. SCD255426.) There, defendant executed a plea form, which fully advised him in writing of his rights to a jury trial, to remain silent, and to confront witnesses. He waived those rights.
In the underlying case here, defendant understood he had a right to a jury trial. He expressly waived a jury on the truth of the admissions. Immediately before admission of the priors, defendant had undergone a full jury trial on the underlying crimes of theft of Arias's vehicle and receiving stolen property. During the trial, adverse witnesses were called to testify against him. Thus, he understood, and indeed had exercised, the right to confront those testifying against him. Defendant also exercised his right to remain silent, as he did not testify.
The question of whether defendant's prior experience in the criminal justice system would lead him to understand the effect on his sentence in this case, were he to admit the priors, also guides our analysis here. Prior to the time the court accepts an admission of an allegation of a prior criminal conviction or convictions, an accused is entitled to be advised of the precise increase in the term or terms that may be imposed and the effect on any increase in term or terms of imprisonment on eligibility for parole. (In re Yurko, supra, 10 Cal.3d at p. 864.)
Again, however, we are guided by the circumstances surrounding the underlying case, the immediate prior history of the admission of the priors, and the misdemeanor case for which he was on probation at the time he admitted the two priors. The priors were specifically alleged in the complaint, which referenced the Penal Code sections effecting the possibility of an increased sentence due to the priors. We may assume defendant discussed the complaint and the effect of the admission of the priors with his attorney. In this regard, we note defendant has not alleged on this appeal that his counsel was incompetent for failing to fully explain the nature and effect of his admission of the priors.
Although the People have persuasively argued that, given the totality of circumstances we may find there was no prejudice to defendant for an incomplete advisement of the admission of the priors, we are reminded that such an incomplete advisement is very risky. It would be so much more prudent to take the few additional minutes of time to assure a reviewing court that the defendant has been properly and fully advised and further, assist the reviewing court in determining such an advisement has occurred.
In People v. Lloyd (2015) 236 Cal.App.4th 49, the defendant admitted five priors seven months after trial on the underlying charges. He received one year additional sentence for each prior. There, the trial court only advised the defendant he had a right to a trial on the priors. Although the reviewing court used a totality of circumstances test, neither the full record nor the defendant's criminal history provided sufficient evidence that the defendant understood the rights that were not explained. We find what the reviewing court had to say important: "A few scant minutes spent by a trial court advising a defendant and obtaining an express waiver of the right to a jury trial, the right to confrontation, and the right to silence, saves hours of time for both the appellate court and the trial court when a case must be remanded because the record does not demonstrate the defendant's admission was entered freely and voluntarily." (Id. at p. 53.)
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J. WE CONCUR: IRION, J. DATO, J.