Opinion
C085270
06-08-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY JEROME COX, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17NCR11833, 16NCR10945)
Defendant Anthony Jerome Cox appeals his convictions for unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)), failure to stop at the scene of an accident (Veh. Code, § 20002, subd. (a)), and resisting an officer (Pen. Code, § 148, subd. (a)(1)). He contends: (1) the trial court erred by failing to instruct the jury on the elements which make unlawfully taking or driving a vehicle a felony; (2) trial counsel was ineffective for failing to move to bifurcate his prior strike conviction; (3) under the totality of the circumstances, he did not voluntarily and intelligently admit the prior strike allegation; and (4) the trial court erred in imposing a one-year jail term on his misdemeanor hit-and-run conviction. We agree as to his last point only. Accordingly, we will modify defendant's sentence on the misdemeanor hit-and-run conviction. In all other respects, we affirm the judgment.
Undesignated statutory references are to the Vehicle Code.
BACKGROUND
Defendant was tried and sentenced in case Nos. 17NCR11833 and 16NCR10945. The notice of appeal includes both cases; however, defendant raises no issues on appeal relative to case No. 16NCR10945. Accordingly, we do not recount the substantive facts or procedural history underlying case No. 16NCR10945.
On October 13, 2016, Joshua Allen, a partner at Willows Glass, parked his 2006 Chevy Silverado in an alley behind the shop. He left the truck unlocked with the keys in it so his employees could use it for deliveries if needed.
Due to Joshua Allen and Tami Allen sharing the same surname, we refer to each of them by their first names. No disrespect is intended. --------
Jodie Gatz, Kelly Lederer, and Tami Allen were all working at the shop that day. Around lunchtime, they each saw defendant sitting in the parking lot. He was bald, wearing a dark sweatshirt, blue jeans, and white tennis shoes. When Lederer returned to work at 1:30 p.m., defendant was gone.
Robert Berens was working as a supervisor with the Glenn-Colusa Irrigation District. He found a pickup truck crashed into an irrigation ditch about 16 miles from the Willows Glass store. The truck appeared to have been driven off the road into the ditch, the driver's side door was open, and the windshield was cracked. The truck had not been there earlier in the day. He called the California Highway Patrol to report the accident.
Around 2:00 p.m. that day, Tami received a phone call from an employee with the Glenn-Colusa Irrigation District informing her that they had found Joshua's truck. Tami and Lederer went to the location and confirmed it was Joshua's truck. Gatz also identified a photograph of defendant as the person she had seen in the parking lot earlier.
Officer Timothy Horwath responded to the scene. He noted the windshield was cracked in a manner that usually indicates head impact to the windshield. The ditch the truck was in had water flowing through it, so a person getting out of the truck would have had to wade through water and climb the muddy sides of the ditch.
Law enforcement detained defendant at about 2:35 p.m. He was wearing a black sweatshirt, blue jeans, and white sneakers. He was wet, his pants, shoes, and socks were muddy, and he had a cut on his lip and a bloody spot on the top of his head. The injuries were consistent with someone who had hit their head on a windshield. Defendant admitted he had been at Willows Glass earlier in the day. Officer Horwath arrested defendant and transported him to the jail. Once at the jail, defendant repeatedly refused to get out of the vehicle. Eventually the deputies had to physically remove him from the vehicle and carry him into the jail.
Joshua had purchased the truck eight months earlier for $12,000. When he left the truck at the shop, it was undamaged and when he saw it later that day, at around 4:00 p.m., the truck was "totaled." The insurance company considered the truck irreparable and totaled it for $12,000.
PROCEDURAL HISTORY
A complaint deemed an information charged defendant with unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)—count I); receiving stolen property (Pen. Code, § 496d, subd. (a)—count II); failure to stop at the scene of an accident (Veh. Code, § 20002, subd. (a)—count III); and resisting an officer without violence (Pen. Code, § 148 subd. (a)(1)—count IV). The information further alleged defendant had a prior serious felony conviction for first degree burglary. (Pen. Code, §§ 667, subds. (b)-(i), 1170.2.)
During jury deliberations, the trial court granted the prosecution's motion to dismiss count II. The jury found defendant guilty of counts I, III, and IV. The trial court sentenced defendant to a term of three years on count I, doubled pursuant to the strike, and concurrent one-year terms on counts III and IV, each.
DISCUSSION
I
Defendant contends the trial court prejudicially erred in failing to properly instruct the jury on all the elements required to convict defendant of felony driving or taking a vehicle. Specifically, the jury was not required to find either that defendant unlawfully drove the vehicle or that defendant unlawfully took a vehicle valued at over $950. (People v. Page (2017) 3 Cal.5th 1175, 1183, 1187-1188 (Page).) The People concede the trial court's instruction was in error, but argue the error was harmless under Chapman v. California (1967) 386 U.S. 18 .
Section 10851, subdivision (a) provides: "Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, . . . is guilty of a public offense . . . ." A violation of section 10851, subdivision (a) can be charged as either a felony or a misdemeanor. (See People v. Lee (2017) 16 Cal.App.5th 861, 866.)
In the fall of 2014, Proposition 47 amended or added various provisions to the Penal Code to reclassify certain felony offenses as misdemeanors. Among the new provisions was section 490.2, which defines the misdemeanor offense of petty theft as "obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950)." (Pen. Code, § 490.2, subd. (a).)
A violation of section 10851 can—but does not necessarily—constitute a theft offense. (See People v. Garza (2005) 35 Cal.4th 866, 871.) It is a theft offense when the defendant unlawfully takes a vehicle with the intent to permanently deprive the owner of possession. (Page, supra, 3 Cal.5th at p. 1183; Garza, at p. 871.) On the other hand, it is a nontheft offense when the driving takes place after the theft is complete (referred to in Page as "posttheft driving") or when the defendant takes or drives the vehicle only to deprive the owner of possession temporarily (commonly known as "joyriding"). (Page, at p. 1183; People v. Gutierrez (2018) 20 Cal.App.5th 847, 854.)
Thus, under Proposition 47 as construed in Page, a theft-based violation of section 10851 is a misdemeanor if the value of the stolen vehicle does not exceed $950, and a felony if the value exceeds $950. (Page, supra, 3 Cal.5th at p. 1183.) A driving-based violation of section 10851 remains a potential felony (because it is a wobbler offense) regardless of the value of the driven vehicle. (Page, at p. 1188 & fn. 5.) Here, the prosecution made clear in closing argument that the legal theory for the section 10851 conviction was the claim that defendant stole the vehicle.
The trial court instructed the jury on section 10851 as follows:
"The Defendant is charged in Count I with unlawfully taking or driving a vehicle, in violation of Vehicle Code Section 10851. To prove that the Defendant is guilty of this crime, the People have to prove, number one, the Defendant took or drove someone else's vehicle without the owner's consent; and, number two, when the Defendant did so, he intended to deprive the owner of possession or ownership of the vehicle for any period of time. [¶] A 'taking' requires that the vehicle be moved for any distance, no matter how small. And a 'vehicle' does include a truck." These instructions were incomplete for felony unlawful taking or driving a vehicle, as they omit the element of the value of the vehicle.
When the trial court erroneously omits an element in the jury instructions, we must determine whether the error is prejudicial. (People v. Jo (2017) 15 Cal.App.5th 1128, 1161-1162.) We review these instructional errors under the harmless error standard of Chapman; that is, "[i]s it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?" (Neder v. United States (1999) 527 U.S. 1, 18 [144 L.Ed.2d 35, 53]; People v. Merritt (2017) 2 Cal.5th 819, 822.) " 'Where an instruction omits some elements of the offense or allegation, but the elements were uncontested and supported by overwhelming evidence, it would not necessarily follow that the trial was fundamentally unfair or an unreliable vehicle for determining guilt or innocence.' [Citation.]" (Merritt, at p. 827.)
Here, the vehicle was a 2006 Chevy Silverado truck in good condition, with no damage, "not a dent to it." Joshua paid $12,000 for the truck only eight months before it was stolen. The insurance company considered the truck totaled and paid the whole $12,000 loss. Defendant did not contest this evidence in any way. The evidence on this element was uncontested and overwhelming. We have reviewed the trial evidence to determine " 'whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element' . . . (Neder[ v. United States], supra, 527 U.S. at p. 19; see People v. Mil [2012] 53 Cal.4th [400,] 417)." (People v. Gonzalez (2012) 54 Cal.4th 643, 666.) We conclude on this record, no rational juror could find the 2006 Chevy Silverado was valued at less than $950. Accordingly, the instructional error was harmless beyond a reasonable doubt.
II
Defendant contends: (1) trial counsel was ineffective in not moving in limine to bifurcate the prior strike allegation; (2) there was no tactical basis for failing to request bifurcation; and (3) the error was prejudicial. He contends the error was prejudicial as it "could have caused the jurors to believe that [defendant] was the sort of person disposed to committing theft offenses." He concludes it is "more than reasonably probable that the jurors' knowledge that [defendant] had a prior 'serious and violent felony' conviction for a theft-related offense would have gone a long way in convincing them that he was guilty."
Background
Prior to jury voir dire, the prosecutor asked if the strike prior would be included in the jury trial. The trial court confirmed it would be included. As jury selection began, the trial court read the charges alleged against defendant to the jury pool, drug possession, unlawfully taking a vehicle, receiving stolen property, hit and run, resisting an officer arrest, and the prior strike allegation that defendant had previously been convicted of first degree burglary, "a serious and violent felony." The trial court informed the jury that defendant had pleaded not guilty to all the charges and denied the special allegation, so the jury would have to decide whether his guilt was proven beyond a reasonable doubt. Following a side bar, the trial court informed the venire panel that the special strike allegation had been withdrawn, stating, "[s]ometimes things occur during the processes of having a jury, and in this particular case I am advised that I just remarked to you that there's a special allegation that's been charged here and that's been taken away. There's no such special charge. You're not to consider it for any reason whatsoever; it's gone. Okay? All right." Outside the presence of the jury, defendant admitted the prior conviction allegation.
Analysis
An ineffective assistance of counsel claim has two prongs. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) Defendant must show that his counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and there is a reasonable probability that, but for counsel's errors, the result would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) " 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (Id. at p. 218.) It is not necessary for us to consider the performance prong of the ineffective assistance test if defendant cannot meet the prejudice prong. (Strickland, at p. 697 .)
Defendant cites no authority for his contention that a brief reference to a prior conviction made in reading the information is prejudicial. The authorities on which he relies, involved cases in which evidence of the defendant's prior conviction was improperly introduced at trial.
Here, the trial court, consistent with the procedure indicated in Penal Code section 1093, read the allegations of prior convictions in the information together with allegations of charged offenses. (People v. Bracamonte (1981) 119 Cal.App.3d 644, 652-653, disapproved of by another point People v. Calderon (1994) 9 Cal.4th 69; People v. Hoerler (1962) 208 Cal.App.2d 402, 408-409.) The trial court also explicitly stated defendant denied the charges and allegations and they would have to be proven beyond a reasonable doubt. Almost immediately thereafter, the trial court informed the jury that the prior conviction allegation had been withdrawn and it was not to consider it for any reason. The prior conviction was not mentioned again at any point during the trial. Because jurors are presumed to understand and follow the court's instructions (People v. Sanchez (2001) 26 Cal.4th 834, 852), it is reasonably likely that the jury disregarded the passing mention of the prior conviction and did not consider it for any purpose.
Accordingly, on this record, even assuming trial counsel's performance was deficient in failing to seek bifurcation of the prior conviction, we cannot say that a brief statement made by the trial court contributed in any way to the guilty verdicts. It is not reasonably probable that defendant would have obtained a better result if counsel had sought bifurcation; thus, his claim for ineffective assistance of counsel fails.
III
Defendant contends under the totality of the circumstances, his admission of the prior conviction was not voluntary and intelligent. He argues he was not fully advised of his rights and the penal effect of a true finding on his prior conviction. Defendant argues he gave the admission prior to waiving his rights, did not clearly indicate he was waiving his right to a jury trial, and the admission resulted from a material misunderstanding of the law, specifically that he admitted it to keep it from the jury, not realizing he could seek bifurcation or have a bench trial.
Background
Prior to the jury being sworn, the trial court stated counsel had indicated defendant was prepared to admit the strike allegation. The court noted for the record: "[I]n our pretrial conference, when asked the question as to whether that was going to be tried before the jury, [defendant] indicated affirmatively; and it was through his counsel. And now that he has—in a moment—going to admit that, it will not come before the jury for any intents and purposes, except that if [defendant] decides to testify, the conviction can be used for the felony conviction [sic]."
Defense counsel added, "Furthermore, your Honor, that prior to the jury taking the box, [the district attorney] reminded me that he would voir dire the jurors as to the strike prior. I asked the Defendant at counsel table if he was prepared to admit that, and he declined. It was subsequently that he then came forward to me and asked to admit it, as we're doing at this time."
"[COURT]: Mr. Cox, is it your intention, sir, to admit the special allegation under 667(c) and (e)(1) and 1170.12(c)(1)?
"[DEFENDANT]: Admit what?
"MR. SMITH: That you are the person that suffered that conviction?
"[DEFENDANT]: Yeah, I got—I mean, I have a strike.
"[COURT]: Is it true, sir, that on May 21, 2008, in Butte County, you were convicted of first degree Burglary?
"[DEFENDANT]: Yeah.
"[COURT]: All right. And you understand the jury has already taken their place, although not yet sworn, and you have a right to have the jury decide whether or not this strike is true or not?
"[DEFENDANT]: Right; I rather—
"[COURT]: And you're waiving your right to have that jury make that determination?
"[DEFENDANT]: I mean, I'd rather not have them decide whether it's true or not.
"[COURT]: That's precisely why we're putting it on the record now that you're giving up your right to have the jury make that decision.
"[DEFENDANT]: Right; then they don't
"[COURT]: And like in any other case, you have the right to present your own witnesses and evidence concerning that strike prior, and you waive that right?
"[DEFENDANT]: Yes.
"[COURT]: And you waive your right to remain silent on that issue only
"[DEFENDANT]: Yes.
"[COURT]: —that you have a prior conviction; right?
"[DEFENDANT]: Yes.
"[COURT]: Okay. Any further questions?
"[DEFENSE COUNSEL]: No, your Honor."
Analysis
When accepting a defendant's admission of prior convictions, the trial court must advise the defendant 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 his plea.' " (People v. Lloyd (2015) 236 Cal.App.4th 49, 57, quoting In re Tahl (1969) 1 Cal.3d 122, 132; In re Yurko (1974) 10 Cal.3d 857, 863.) The trial court must also advise such a defendant of "the full penal effect of a finding of the truth of an allegation of prior convictions." (In re Yurko, at p. 865.) For a waiver of these constitutional rights to be valid, it must be knowing, intelligent, and voluntary. (Boykin v. Alabama (1969) 395 U.S. 238, 243 .) The lack of express advisement, and waiver, of each of the Boykin-Tahl rights constitutes reversible error unless "the record affirmatively shows that [the admission] is voluntary and intelligent under the totality of the circumstances." (People v. Howard (1992) 1 Cal.4th 1132, 1175; People v. Mosby (2004) 33 Cal.4th 353, 360.)
The focus of the analysis is not "whether the defendant received express rights advisements, and expressly waived them, [but] whether the defendant's admission was intelligent and voluntary because it was given with an understanding of the rights waived." (People v. Mosby, supra, 33 Cal.4th at p. 361.) The court must go beyond the record of the plea colloquy and review the entire record. (Ibid.) Moreover, " 'a defendant's prior experience with the criminal justice system' is . . . 'relevant to the question [of] whether he knowingly waived constitutional rights.' [Citation.] That is so because previous experience in the criminal justice system is relevant to a recidivist's ' "knowledge and sophistication regarding his [legal] rights." ' [Citations.]" (Id. at p. 365.)
We review the totality of the circumstances whether the trial court failed, "either partially or completely, to advise and take waivers of the defendant's trial rights before accepting a guilty plea." (People v. Farwell (2018) 5 Cal.5th 295, 303.) We examine the record to determine if the record "affirmatively shows" that the defendant's waiver of constitutional rights was voluntary and intelligent. (People v. Howard, supra, 1 Cal.4th at p. 1179, italics added.)
Here, the trial court advised defendant of his right to a jury trial, to present his own witnesses and evidence, and his right to remain silent. The discussions by counsel as to pretrial conversations with defendant indicate, prior to the trial court's advisement, he was aware of his right to a jury trial on the prior strike. Defendant was not advised of his right to confront or cross-examine witnesses. However, defendant had a significant criminal record, dating back to 2002 in six separate cases, including multiple misdemeanor theft convictions, felony evading police, felony drug offenses, and burglary. Defendant's prior significant experience in the criminal justice system also indicates his waiver of rights was knowing and intelligent. In the course of those prior proceedings, defendant was either advised of his various trial rights, including the right to confront witnesses, and waived them or availed himself of those rights and took the matters to trial.
Finally, the record demonstrates that defendant discussed his admission with defense counsel and made the decision to enter his admission with the benefit of advice from defense counsel. Based on our review of the entire record, we conclude that under the totality of the circumstances, at the time of his admission of the prior conviction allegation and waiver of rights, defendant was aware of his rights to confront adverse witnesses and to remain silent.
Defendant also claims the trial court erred in failing to advise him of the penal consequences of his admission. Unlike his trial rights, nothing in the record indicates defendant was advised of or aware of the penal consequences of his admission. That advisement, however, is not constitutionally mandated, but is, instead, "a judicially declared rule of criminal procedure." (In re Yurko, supra, 10 Cal.3d at p. 864; see also People v. Wright (1987) 43 Cal.3d 487, 495.) Accordingly, any error by the trial court in not advising a defendant of the penal consequences of his or her admission of prior prison term allegations "is waived if not raised at or before sentencing. Upon a timely objection, the sentencing court must determine whether the error prejudiced the defendant, i.e., whether it is 'reasonably probable' the defendant would not have pleaded guilty [or admitted the truth of the prior prison term allegation] if properly advised [of its penal consequences]. [Citation.]" (People v. Walker (1991) 54 Cal.3d 1013, 1023, overruled on other grounds in People v. Villalobos (2012) 54 Cal.4th 177, 183.) There was no objection at the time of sentencing on the specific ground that defendant was not adequately advised of the penal consequences of the admission. Accordingly, this claim is forfeited. (Ibid.)
Finally, defendant claims his admission was based on a material misunderstanding of the law, and that misunderstanding induced him to enter the admission. He claims the "record strongly suggests that [he] ultimately admitted the strike-prior allegation because he felt he had to in order to keep the jury from hearing about the prior again." We are not persuaded the record reflects such a misunderstanding. Rather, defense counsel indicated, defendant had previously affirmatively indicated the strike prior would be tried to a jury, and even after learning the district attorney would be questioning the jury about the strike, he was not willing to enter an admission. This record does not demonstrate a misunderstanding of the law "induced" defendant's plea.
IV
Defendant's final contention is the trial court erred in imposing a one-year term on the misdemeanor hit-and-run conviction. (§ 20002, subd. (a).) He contends this is an unauthorized sentence as the statute provides for only a six-month term in county jail. The People properly concede the point. We accept the People's concession and shall modify the judgment to reflect the proper term.
DISPOSITION
The judgment is modified to impose a six-month concurrent term for misdemeanor hit and run. In all other respects, the judgment is affirmed.
/s/_________
BLEASE, Acting P. J. We concur: /s/_________
BUTZ, J. /s/_________
DUARTE, J.