Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. YA063371, Michael P. Vicencia, Judge. Affirmed.
David Christian Read for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, Acting P. J.
Lorenzo Christopher Caver appeals from the judgment entered following a jury trial resulting in his conviction of possessing cocaine in the base form for sale. (Health & Saf. Code, § 11351.5.) In bifurcated proceedings, he admitted that he had served a separate prison term after two felony convictions. (Pen. Code, § 667.5, subd. (b).) The trial court sentenced defendant to an aggregate term of five years in state prison, consisting of the upper term of four years for the offense, enhanced by one year for having served a separate prison term.
Unless otherwise specified, all further statutory references are to the Penal Code.
On appeal, he contends that (1) the trial court committed prejudicial Yurko error (In re Yurko (1974) 10 Cal.3d 857 (Yurko)) as it failed to advise him of and obtain an express and personal waiver of the requisite constitutional rights before his admission of the separate prison term enhancement, and (2) the failure to advise him of the direct penal consequences of the admission also requires a reversal.
The totality of circumstances show a voluntary and intelligent admission of the one-year separate prison term enhancement. Defendant has waived the issue of the failure to advise him of the consequences of the admission, or the failure to advise was nonprejudicial.
We shall affirm the judgment.
FACTS
On November 18, 2005, two Los Angeles County deputy sheriffs, Angelo Lopez and John Magana, were assigned to the Lennox Station Narcotics Bureau and were on patrol. They saw a car parked in a red zone near 88th Street and Vermont Avenue in Los Angeles County, which had no front license plate. Deputy Lopez ran the license plate on the rear of the car and discovered that the car’s registration had expired.
Deputy Lopez approached to advise the driver, defendant, of the traffic violation. During the contact, the deputy obtained probable cause to arrest defendant. Before Deputy Lopez put defendant into the rear seat of the patrol vehicle, he patted defendant down for weapons and contraband. The deputy found 1.27 grams of marijuana in a baggie and 15 rocks of base cocaine in a film canister in defendant’s pockets. The base cocaine’s net weight was 3.07 grams.
At trial, pursuant to Evidence Code section 352, the trial court excluded evidence that defendant was on parole and that he was arrested because he had an outstanding warrant related to his parole status.
At trial, an experienced narcotics detective and the detaining deputies testified that the only conclusion one could reach from the defendant’s possession of 15 rocks of base cocaine was that defendant possessed the rocks for the purpose of sale.
Defendant did not testify, but called his own narcotics expert, a former addict and former narcotics officer. Contrary to the testimony of the prosecution experts, the defense expert gave his opinion that it was reasonable to conclude that the possession of 15 rocks of base cocaine also might indicate that the person possessed the rocks for his own personal use.
DISCUSSION
I. Yurko Error
Defendant contends that he is entitled to a reversal of the trial court’s true finding as to the prison term enhancement because the trial court failed to advise him of his Boykin-Tahl rights prior to his admission of the one-year prison term allegations. (Boykin v. Alabama (1969) 395 U.S. 238, 243 & fn. 5 (Boykin); In re Tahl (1969) 1 Cal.3d 122 (Tahl).)
A. Background
The information contained two section 667.5, subdivision (b) prison term allegations. The trial court held bifurcated proceedings on the prior conviction allegations. After the jury returned its guilty verdict with respect to the offense, the trial court had the jury momentarily return to the jury room. Trial counsel and defendant spoke briefly off the record. Then, trial counsel informed the court that he had explained to defendant that defendant now had the constitutional right to have the jury decide the issue of the truth of the prior conviction allegations. The trial court asked defendant whether he understood that the jury could decide the issue of the “prison prior.” Defendant replied, “Yeah.” The prosecutor inquired whether “further down the road,” defendant was contemplating having a court trial or admitting the allegations.
The trial court asked defendant whether he wanted a court trial on the allegations. Trial counsel and defendant again conferred off the record. Defendant personally said, “I want the judge to decide.” Trial counsel reiterated, “We would like a court trial.”
The trial court was aware that the prosecutor had another jury trial that was scheduled to begin the next day. The trial court scheduled the court trial on the bifurcated prison term allegations six days later, on March 22, 2006. The trial court advised defendant that he had a right to have an immediate trial on the prior conviction allegations. It explained that by agreeing to put the matter over, defendant would be waiving his right to an immediate trial on these allegations. Defendant personally agreed to the postponement.
On March 22, 2006, defendant appeared for the court trial. The trial court announced that it understood that defendant wanted to admit the “priors.” Trial counsel agreed that was what defendant had decided.
The prosecutor asked defendant personally whether he admitted that he had two prior felony convictions in case Nos. BA268653 and KA057984 for which he had served one separate prison term. Defendant replied, “Yes.” The trial court asked trial counsel whether she joined in the admission, and she replied, “Yes.”
The trial court then sentenced defendant.
On March 6, 2006, defendant was 30 years old. The probation report revealed that he had a criminal history. In 1999, in two different misdemeanor cases, he was convicted of driving with a suspended license and carrying a loaded firearm. In 2000, he was found in violation of probation for the latter offense and sentenced to 60 days in jail. In 2001, in three different misdemeanor cases, he was convicted of burglary, driving with a suspended license, and petty theft with a prior conviction. In two of the cases, he was later found to be in violation of his probation, and he was ordered to serve a further jail term. In 2004, he suffered a felony conviction for possessing marijuana for sale and was sentenced to two years in state prison.
During the current sentencing proceedings, trial counsel indicated that in 2004, defendant actually had suffered three felony convictions, not just the one conviction revealed by the probation report. Defendant had been imprisoned for two years on all three cases. Trial counsel said that defendant had graduated from Culver City High School and that he had attended West Los Angeles Community College.
B. The Relevant Legal Principles
In the decision in People v. Mosby (2004) 33 Cal.4th 353 (Mosby), the California Supreme Court explained the relevant legal principles.
“For nearly two decades after our decision in In re Yurko, supra, 10 Cal.3d 857, lack of express advisement, and waiver, of all three Boykin-Tahl rights was viewed as error requiring automatic reversal. (See People v. Wright (1987) 43 Cal.3d 487, 493–495; In re Ibarra (1983) 34 Cal.3d 277, 283, fn. 1; In re Ronald E. (1977) 19 Cal.3d 315, 320–321.) Then, in our 1992 decision in Howard [(1992)] 1 Cal.4th 1132, we revisited the issue and came to a different conclusion. The pertinent inquiry, we said, was whether ‘the record affirmatively shows that [the admission] is voluntary and intelligent under the totality of the circumstances’ (id. at p. 1175, italics added), applying ‘the test used to determine the validity of guilty pleas under the federal Constitution.’ (Ibid.) Howard explained: ‘[T]he weight of authority today makes it abundantly clear that “the California interpretation of Boykin announced in Tahl is not required by the federal Constitution . . . .” (United States v. Pricepaul (9th Cir. 1976) 540 F.2d 417, 424–425; [citation].)’ (Id. at pp. 1177–1178.) We also said that the United States Supreme Court ‘has never read Boykin as requiring explicit admonitions on each of the three constitutional rights,’ but instead looks to the test set out in North Carolina v. Alford [(1970)] 400 U.S. [25,] 32, which asks ‘“whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.”’ (Howard, supra, at p. 1177.)
“By adopting in Howard the federal constitutional test of whether under the totality of circumstances the defendant’s admission is intelligent and voluntary, we rejected the rule that ‘the absence of express admonitions and waivers requires reversal regardless of prejudice.’ (Howard, supra, 1 Cal.4th at p. 1178.) In replacing the old rule, the focus was shifted from whether the defendant received express rights advisements, and expressly waived them, to whether the defendant’s admission was intelligent and voluntary because it was given with an understanding of the rights waived. After our Howard decision, an appellate court must go beyond the courtroom colloquy to assess a claim of Yurko error. (See People v. Allen (1999) 21 Cal.4th 424, 438.) Now, if 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 circumstances. (Ibid.) That approach—reviewing the whole record, instead of just the record of the plea colloquy—was recently endorsed by the United States Supreme Court in a case where a federal court failed, before accepting the defendant’s guilty plea, to advise the defendant of his right to counsel as required by rule 11 of the Federal Rules of Criminal Procedure. (United States v. Vonn (2002) 535 U.S. 55, 76; Fed. Rules Crim. Proc., rule 11(b)(1), 18 U.S.C.)” (Mosby, supra, 33 Cal.4th at pp. 360–361.)
C. The Analysis
Here, defendant waived his right to a jury trial immediately after his full-blown trial on guilt. However, six days later, when the court trial on the prior conviction allegations was scheduled, the trial court failed to readvise defendant of his right to a jury or to a court trial, and it failed to obtain the required express waivers of the constitutional rights to remain silent and to confront adverse witnesses. Thus, we address the question of whether defendant’s admission was voluntary and intelligent under the totality of the circumstances.
In Mosby, supra, 33 Cal.4th 353, the defendant was charged with one count of selling cocaine. It was also alleged that he had a prior felony conviction. (Id. at p. 356.) After learning that the jury had arrived at a guilty verdict on the substantive offense, the defendant admitted the prior felony conviction. (Id. at p. 357.) Prior to accepting the admission, the defendant was advised of, and waived, his right to trial by jury. However, the defendant was not advised of his rights against self-incrimination and to confrontation, nor did he waive such rights. (Id. at pp. 357–358.)
In deciding Mosby, the California Supreme Court said that ‘“a defendant’s prior experience with the criminal justice system’” was relevant to whether he or she knowingly waived constitutional rights as such experience is relevant to a “recidivist’s ‘“knowledge and sophistication regarding his [or her legal] rights.’”” (Mosby, supra, 33 Cal.4th at p. 365, fn. omitted, citing Parke v. Raley (1992) 506 U.S. 20, 36–37, and United States v. Dawson (9th Cir. 1999) 193 F.3d 1107, 1110–1111.) The Mosby court found no error based on the totality of circumstances because defendant had just completed a jury trial at which he was represented by counsel and during which he had declined to testify. The Court reasoned that the Mosby defendant, through his counsel during the trial, examined and cross-examined the various witnesses during the trial on guilt. Such an experience necessarily meant that the defendant would have understood that during a prospective trial on the prior convictions allegations, defendant had the same constitutional rights against self-incrimination and to confront and cross-examine witnesses. (Mosby, supra, at p. 364.) Immediately after the guilt phase of the trial, the Mosby defendant was informed of his right to a jury trial on the prior conviction allegation and waived that right. (Ibid.) The Mosby defendant’s prior conviction was entered after his plea of guilty, at which time the defendant presumably would have received Boykin-Tahl advisements and waived them. (Mosby, supra, at p. 365.)
As discussed in the Mosby case, in People v. Torres (1996) 43 Cal.App.4th 1073, the Court of Appeal reversed and remanded for retrial the findings that the defendant had suffered prior convictions and a prior prison term. (Mosby, supra, 33 Cal.4th at p. 363.) A jury had just convicted the defendant of several crimes when he was advised of his right to a jury trial on the alleged priors. The defendant admitted the priors and did so without admonishment, or waivers, of his rights to remain silent and to confront witnesses. The Court of Appeal in Torres concluded that without express advisements and waivers in the record, “‘it is not possible here to find defendant’s admissions’” were voluntary and intelligent. (Mosby, supra, at p. 363, quoting People v. Torres, supra, at p. 1082.) In Mosby, the California Supreme Court disapproved of the Torres decision, which essentially was based on the same facts that exist in this case. (Mosby, supra, at p. 365, fn. 3.)
This is not a silent record case. (See People v. Hinton (2006) 37 Cal.4th 839, 875, fn. 12; Mosby, supra, 33 Cal.4th at p. 361.) The only significant difference between the facts in Mosby and the instant facts are that there was a brief six-day delay between the jury trial on guilt and the admission of the prior conviction allegations. This defendant is a 30-year-old high school graduate who has attended community college. The brief delay occasioned by the prosecutor’s unavailability for an immediate court trial would not have caused defendant to forget the legal rights he enjoyed during the preceding trial on guilt. During that trial, defendant declined to testify, and his trial counsel engaged in extensive examination and cross-examination of the witnesses, which would have made defendant aware that during any prospective trial he would be able to exercise the rights against self-incrimination and to confront and cross-examine witnesses. The trial court advised defendant of his right to a jury trial, and he expressly waived that right six days before the court trial. Consequently, during these admissions, defendant would have been well aware of all of his Boykin-Tahl rights.
Based on the totality of circumstances, the record demonstrates that defendant’s admission was knowing and intelligent.
II. The Consequences of the Plea
Defendant also challenges the validity of his admission on the ground that the trial court failed to advise him of the penal consequences of admitting the prison term allegation, i.e., that the admission would result in a prison term of one year that would be consecutive to the term imposed for the offense.
This contention also lacks merit.
“‘To establish that the defendant fully understands the consequences of his plea, the trial court must satisfy itself that the defendant knows about the permissible range of sentences to which he subjects himself by pleading guilty.’ (People v. Tabucchi (1976) 64 Cal.App.3d 133, 142; In re Tahl, supra, 1 Cal.3d at p. 133, fn. 7.) Thus, the California Supreme Court has directed that ‘[in] all guilty plea . . . cases the defendant shall be advised of the direct consequences of conviction such as the permissible range of punishment provided by statute, . . . ’ (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605.)” (People v. Caban (1983) 148 Cal.App.3d 706, 710.)
Unlike the admonition required for a waiver of constitutional rights, an advisement of the penal consequences of admitting a prior conviction is not constitutionally mandated. Rather, it is a judicially declared rule of criminal procedure. (People v. Wrice (1995) 38 Cal.App.4th 767, 770.) “[W]hen the only error is a failure to advise of the penal consequences, the error is waived if not raised at or before sentencing. ([People v. Walker (1991) 54 Cal.3d 1013,] 1023.) Such policies ensure the fair and orderly administration of justice. (People v. Scott (1994) 9 Cal.4th 331, 351.) ‘The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had.’ (People v. Melton (1990) 218 Cal.App.3d 1406, 1409, quoted with approval in People v. Walker, supra, at p. 1023.)” (Wrice, supra, at pp. 770–771.)
The failure to advise a defendant of the consequences of an admission is an error that requires the admission to be set aside only when the error is prejudicial to the defendant. In order to demonstrate prejudice, a defendant must show it is reasonably probable that he would not have made the admission if he had been advised of the consequences of doing so. (People v. Walker, supra, 54 Cal.3d at pp. 1022–1023; see also People v. Zaidi (2007) 147 Cal.App.4th 1470, 1489.)
Defendant has waived this contention by his failure at sentencing to object to the imposition of the one-year term for the enhancement. Barring waiver, the record contains no indication that defendant would not have entered the admission if he was fully aware of the direct penal consequence of his admission, i.e., that he would obtain the additional one-year term. Without a showing of prejudice, a reversal is not required.
DISPOSITION
The judgment is affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.