Opinion
B226306
08-29-2011
THE PEOPLE, Plaintiff and Respondent, v. ALONSO DELGADILLO, Defendant and Appellant.
John Raphling, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie A. Miyoshi and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA367100)
APPEAL from a judgment of the Superior Court of Los Angeles County. Anne H. Egerton, Judge. Affirmed.
John Raphling, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie A. Miyoshi and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Alonso Delgadillo appeals from a judgment entered after his plea of no contest to one count of receiving stolen property and an admission to a prior felony conviction. Defendant contends that the trial court failed to make the appropriate inquiry after he sought to represent himself, and that his counsel was ineffective for failing to assert judicial coercion as a ground for defendant's motion to withdraw his no contest plea. Defendant also contends that his admission of the prior conviction is invalid because he was not properly advised of his constitutional rights, and because the trial court had no jurisdiction to take the admission. We reject defendant's contentions and affirm the judgment.
BACKGROUND
Defendant was charged with eight counts of receiving stolen property, in violation of Penal Code section 496, subdivision (a). Pursuant to section 1170.12, subdivisions (a) through (d), and section 667, subdivisions (b) through (i), the "Three Strikes" law, the information alleged that defendant had suffered two prior strikes. In addition, the information alleged, pursuant to section 667.5, subdivision (b), that defendant had suffered four prior convictions for which he served prison terms, and did not remain free of prison custody for a period of five years before committing the current offenses.
All further statutory references are to the Penal Code, unless otherwise indicated.
Represented by the public defender, defendant was arraigned and entered a plea of not guilty the same day. Thereafter, defense counsel filed a section 995 motion (995 motion) on defendant's behalf. The motion was denied and a trial date set for April 14, 2010. On April 14, the public defender declared a conflict, was relieved, and Michelle Mead (Mead) was appointed to represent defendant. Seven pretrial conferences were held between April 30, 2010, and May 14, 2010, and Mead was present with defendant at all such hearings.
Section 995 provides a procedure to challenge the prosecution evidence presented at the preliminary hearing as insufficient to establish probable cause to charge the defendant in an indictment or information.
On the day of trial, before jury selection, the prosecution made an offer to settle the case with a sentence limit of eight years in prison. After nearly three hours of negotiation, during which defendant was permitted to confer with his attorney and his mother, the prosecution made a second offer, under which defendant would plead to one count with six years in prison.
The trial court explained the offer to defendant and gave him a moment to confer further with his attorney. The court also explained, "Your potential maximum exposure is 18 years 4 months. Because you have a recent strike conviction, you are not eligible for probation and any sentence is doubled. That's how the maximum is calculated." The court told defendant, "It's up to you. If you want to accept the offer, fine. If you want to have a trial, fine."
Defendant expressed his opinion that the prosecution had overcharged the offenses and that it was unfair. Defendant said that he tried to speak to his lawyer, but he had not had the opportunity, because she had not come to see him. He also complained that he had asked for a 995 motion and that another judge had previously indicated it would be granted if defendant provided him receipts for the property.
The trial court explained to defendant that the prosecution was required to prove its case beyond a reasonable doubt and may or may not be able to do so. The court also explained that the 995 motion had been denied and that proof of receipts was not something that could be considered at a preliminary hearing. The court added, "I know that Miss Mead has talked to you in great length. For example, this morning, I know she was in the back." When defendant claimed that this was the only time she had spoken to him, the court said, "I'm sorry. I just do not believe that. I'm familiar with Miss Mead. She works very hard. You were arraigned on this case a long time ago back in February. She's been working on your behalf since then. She's got them to come down from close to nine years to six."
The court added, "I understand that you think it's unfair and that you didn't do anything. Fine. You're entitled to have a trial. It's my job before we bring the jurors in here to make sure you understand that in turning down the six years, if you are convicted, you will probably be looking at substantially more time. If you're found not guilty, end of case."
Defendant then asked the court to permit him to represent himself, explaining, "I would rather go pro per and defend myself and study my own case because I don't understand any of this stuff. I'm not getting it. I do not know what this is. I don't know what this is." The trial court asked why he would want to represent himself, when he did not understand what he read, and whether he was prepared to proceed with trial. Defendant was not prepared to proceed, but asked for at least a month to "look and study," and "to figure everything out."
The court denied the motion as untimely, noting the age of the case, the readiness of counsel, the jurors waiting to be called into the courtroom, and the subpoenaed witnesses. The court concluded, "It would be a significant disruption to the court and to justice if I were to delay the case at this point."
Defendant decided to take the offer, telling the court that he had no choice. The court replied, "You do have a choice," although there were "risks to both sides of going to trial." The prosecutor then explained the charge in count 1, and asked defendant whether he had had a chance to speak with his attorney about his case, including possible defenses. Defendant replied, "Yes." The prosecutor explained to defendant the terms of the plea agreement, the constitutional rights he was relinquishing, and the consequences of his plea. The prosecutor explained that the six years consisted of the upper term of three years on one count, doubled to six years due to prior convictions. Defendant stated that he understood his rights and the plea agreement, and agreed that he was entering into the agreement because he thought it was the best thing for himself, and that no one had made any threats against him to make him enter into the agreement. Defendant pled no contest to count 1, and the trial court sentenced him to six years in prison, with 349 days custody credit. The court dismissed the remaining counts.
The next day, the trial court recalled the matter, because the court and prosecutor had forgotten to obtain an admission of defendant's prior strike offense. Defense counsel confirmed that the plea agreement had called for an admission to defendant's conviction of arson in violation of section 451, subdivision (d). When asked if he admitted the strike offense, defendant said, "Your Honor, I'm really still unhappy with the fact that I'm pleading guilty again to something. I just wanted to represent myself." When the trial court explained that it would simply be an admission that he was convicted of the prior offense, defendant said, "If I withdraw my plea, I wouldn't be able to represent myself? That's my question. That's all I'm asking."
Defendant refused to admit the prior conviction. He told the court that he felt he was being forced to take six years, without time to prepare, not knowing what the charges were, "not understanding what the charge of what count, what is being used against me." Defendant added, "It's all real quick. My lawyer here, it's not her fault that they handed her the case in late April, only being able to talk to me a few seconds."
The court corrected defendant, explaining that Ms. Mead had been appointed April 14.
The prosecutor suggested that the court schedule a trial solely to prove the prior conviction. The court refused at first, pointing out that defendant had entered into a plea agreement, and the agreement required him to admit the strike. The court ordered a recess to permit defendant to confer with counsel. When the court reconvened, defense counsel orally moved the court to consent to a withdrawal of defendant's plea. Counsel explained that defendant had felt pressured by his mother to enter into the plea agreement, and had wanted more time to represent himself. Further, defendant wanted a transcript of the 995 motion hearing, and now regretted his decision.
The trial court found that defendant had not established good cause to withdraw his plea, and rejected the allegation that defendant had been rushed, finding that the day before, defendant had been afforded lengthy discussions with the court, his attorney, and his mother, and had had time to consider the offer. The court denied the motion, and indicated that it would schedule a jury trial on the prior conviction alone. Defendant then admitted the prior conviction. The trial court noted that defendant would be permitted to appeal from the denial of the motion to withdraw his plea.
Defendant filed a timely notice of appeal from the order denying his motion to withdraw his plea, but did not obtain a certificate of probable cause from the trial court regarding issues relating to the validity of his plea. Defendant applied to this court for a belated certificate of probable cause to include such issues, which we granted.
A defendant may not appeal from a judgment of conviction upon a plea of guilty or no contest unless the trial court has executed and filed a certificate stating there is probable cause for the appeal, or unless the defendant reserved the right to have certain issues reviewed on appeal. (People v. Shelton (2006) 37 Cal.4th 759, 769; § 1237.5; Cal. Rules of Court, rule 8.304(b).)
DISCUSSION
Faretta v. California (1975) 422 U.S. 806, 820-821 (Faretta).
Defendant contends that the trial court was required by the Sixth and Fourteenth Amendments to the United States Constitution to grant his motion to represent himself, and that the court erred in finding his motion untimely. The Sixth Amendment right to counsel implies a right of self-representation if the defendant voluntarily and intelligently elects to do so. (Faretta, supra, 422 U.S. at pp. 820-821; People v. Windham (1977) 19 Cal.3d 121, 124 (Windham).)"When 'a motion to proceed pro se is timely interposed, a trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be.' [Citation.]" (People v. Danks (2004) 32 Cal.4th 269, 295, quoting Windham, at p. 128.)
However, "in order to invoke an unconditional right he must assert it '"within a reasonable time prior to the commencement of trial."' [Citations.]" (People v. Frierson (1991) 53 Cal.3d 730, 742 (Frierson); see also People v. Lynch (2010) 50 Cal.4th 693, 722-723 (Lynch).)If the motion is not timely made, "it is thereafter within the sound discretion of the trial court to determine whether such a defendant may dismiss counsel and proceed pro se." (Windham, supra, 19 Cal.3d at p. 124.) Although there is no "single point in time at which a self-representation motion filed before trial is untimely . . . , pertinent considerations may extend beyond a mere counting of the days between the motion and the scheduled trial date." (Lynch, supra, at p. 723.)
Defendant contends that his motion was timely, because it was made before opening statements. As authority for this contention, defendant relies upon the California Supreme Court's acknowledgment in Windham that New York courts followed such a rule of timeliness. (Windham, supra, 19 Cal.3d at p. 127.) However, the court did not adopt such a hard and fast rule, and suggested that a Faretta motion made the day before trial could be considered untimely. (See Windham, at p. 128, fn. 5.)
Since Windham, the California Supreme Court has held in numerous cases that Faretta motions made on the "eve of trial" are untimely. (Lynch, supra, 50 Cal.4th at pp. 722-723, citing People v. Valdez (2004) 32 Cal.4th 73, 102, ["motion made 'moments before jury selection was set to begin'"]; People v. Horton (1995) 11 Cal.4th 1068, 1110, [motion made on the date scheduled for trial]; People v. Clark (1992) 3 Cal.4th 41, 99100 [case continued day to day with "jury selection set to begin at any time"]; Frierson, supra, 53 Cal.3d at page 742 [motion made on "the eve of trial"].) In Lynch, the court held that the trial court should consider the totality of the circumstances in determining whether the motion is timely, including such factors as "the time between the motion and the scheduled trial date, . . . whether trial counsel is ready to proceed to trial, the number of witnesses and the reluctance or availability of crucial trial witnesses, the complexity of the case, any ongoing pretrial proceedings, and whether the defendant had earlier opportunities to assert his right of self-representation." (Lynch, supra, at p. 726.)
Here, the trial court considered factors suggested in Lynch: the court noted the advanced age of the case as well as the fact that counsel had announced ready for trial the week before, that jurors were waiting to be called into the courtroom, and that witnesses had been subpoenaed. The court found that delaying trial would cause a significant disruption to the court and to justice. Further, defendant expressed the need for a month or more just to understand the case, not to prepare the case for trial. The need for such a delay, combined with the other factors considered by the trial court, justified its finding that the motion was untimely, as the trial court must be afforded "'wide latitude in balancing the right to counsel of choice against the needs of fairness . . . and against the demands of its calendar.'" (Lynch, supra, 50 Cal.4th at p. 728.)
Thus, whether to grant the motion was not constitutionally mandated by the Sixth Amendment, but was a matter within the discretion of the trial court. (See Lynch, supra, 50 Cal.4th at pp. 721-722; Windham, supra, 19 Cal.3d at pp. 124, 127-128.) Defendant contends that in exercising its discretion, the trial court was required to hold a separate Marsden type hearing and express its reasoning on the record. He compares this case with two cases in which the trial court had made no inquiry at all, but had summarily denied the defendant's motion. (See People v. Rivers (1993) 20 Cal.App.4th 1040, 1047, 1049; People v. Hernandez (1985) 163 Cal.App.3d 645, 650, 653.)
People v. Marsden (1970) 2 Cal.3d 118.
Here, the trial court did make an inquiry. The trial court was not required to state the reasons underlying its decision to deny a motion for self-representation; it was required only to establish a record sufficient to review its discretion. (Windham, supra, 19 Cal.3d at p. 129, fn. 6.) To establish such a record, the trial court should inquire into defendant's reasons for the request, the quality of counsel's representation, any prior proclivity of defendant to substitute counsel, the length and stage of the proceedings, and any disruption or delay which might reasonably be expected if the court granted the motion. (Id. at pp. 128-129.) After defendant made his request to represent himself, the trial court considered all these factors, other than the absence of a proclivity to bring such motions. Such absence does not indicate an abuse of discretion, where, as in this case, the defendant had ample time beforehand to request self-representation, and had not shown good cause for the delay. (See People v. Burton (1989) 48 Cal.3d 843, 854.)
We conclude that the trial court made a sufficient inquiry, and did not abuse its discretion in denying the motion. Although we find no error, we agree with respondent that defendant has shown no prejudice from the denial of his motion. The erroneous denial of an untimely Faretta motion is reviewed under the harmless error test of People v. Watson (1956) 46 Cal.2d 818 (Watson). (People v. Rivers (1993) 20 Cal.App.4th 1040, 1050.) Under that test, error is harmless unless it appears from a review of the whole record that it was reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. (Watson, supra, at p. 836.)
Defendant has merely argued that self-representation might have worked to his advantage, but does not suggest how it would have done so. His reasons for self-representation were to have time to understand the charges, which he claimed were excessive, and to bring another 995 motion in which he would submit evidence of his innocence. As the trial court explained, defendant's 995 motion would not have been heard, and defense counsel had negotiated a dismissal of all but one count. Defendant admitted that what he wanted was time, not to prepare for trial, and not because he thought his own representation could add anything positive to his defense, but merely to study the charges and the law. Thus the only probable result would have been a delay in the proceeding. Because such a result would not be more favorable to defendant, no prejudice is shown. (See Watson, supra, 46 Cal.2d at p. 836.)
II. Effectiveness of Counsel
Defendant contends that his counsel was ineffective in moving to withdraw his no contest plea, because she did not base the motion upon the ground of judicial coercion. The Sixth Amendment right to assistance of counsel includes the right to the effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686-674; see also Cal. Const., art. I, § 15.) To establish that counsel was ineffective, defendant must show that counsel's performance was deficient, and that he was prejudiced by counsel's errors. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126 (Rodrigues).)
Defendant contends that counsel should have been prompted to assert judicial coercion by his statement that he "felt pressured to enter into the disposition." He argues that the trial court was coercive in telling him, "[I]f you are convicted, you will probably be looking at substantially more time." Defendant also argues that the court "made a very concise, but very clear, threat to impose 'substantially more time' if [defendant] rejected the plea deal and went to trial."
The trial court may permit a defendant to withdraw a guilty or no contest plea upon showing that his exercise of free judgment had been overcome, such as by duress or undue pressure by the court. (People v. Weaver (2004) 118 Cal.App.4th 131, 145-146 (Weaver); § 1018; see also People v. Sandoval (2006) 140 Cal.App.4th 111, 127 (Sandoval); People v. Williams (1969) 269 Cal.App.2d 879, 885 (Williams).)
Although the statute requires an application prior to judgment, the trial court has the power to permit the withdrawal of the defendant's plea after the pronouncement of judgment. (People v. Campos (1935) 3 Cal.2d 15, 17; § 1018.)
Defendant contends that the pressure brought to bear on him was no less than that described in Weaver. In Weaver, the defendant was charged with child molestation. The trial judge inserted himself intensely into the plea negotiations, by the following conduct: urging the defendant to accept the prosecution's offer; repeatedly making comments indicating a belief that defendant was guilty and a pedophile in denial, citing specific examples of other defendants who refused reasonable offers and received longer sentences after going to trial; telling defendant that he did not want to see the girls "'victimized' again" by having to testify; and describing the evidence of child pornography found on the defendant's computer as an ugly, smelly monster with warts and "'green stuff dripping from its mouth and the horns'" that would be brought "'into the courtroom and put . . . on that table [to] puke all over the place and crap all over the place . . . .'" (Weaver, supra, 118 Cal.App.4th at pp. 135-138.) In asking to withdraw his plea, the defendant told the court that he felt pressured by the judge's comments. (Id. at p. 146.)
The conduct of the trial court in this case could not be more dissimilar to the judge's behavior in Weaver. Here, the parties came into the hearing with a final offer by the prosecution, and the trial court was not involved in plea negotiations. The court did not "threaten" to give defendant a longer sentence, but informed him of his potential maximum exposure, if convicted of all charges after a trial. It is the trial court's obligation to ascertain whether defendant understands the nature of the charges, as well as the consequences of the plea agreement and whether it is voluntary. (Williams, supra, 269 Cal.App.2d at pp. 884-885.) The court may discharge that duty through reasonable inquiry, so long as it does not impart incorrect legal advice, promises, or threats. (Id. at pp. 881-882, 885.)
The court remained neutral, did not advocate the prosecution's position, and told defendant, "It's up to you. If you want to accept the offer, fine. If you want to have a trial, fine." Nor did the court express an opinion as to defendant's guilt or innocence as in Weaver, or as in Sandoval.
Moreover, defendant did not claim that he felt pressured by the court, as the defendant did in Weaver. (See Weaver, supra, 118 Cal.App.4th at p. 146.) Defendant told his attorney that he felt pressured by his mother to accept the plea bargain. Defendant explained to the court that he had pled guilty many times in the past when he thought he was innocent, and that he suffered from anxiety attacks. He said to the court, "I was willing to do this, but when they put my mom there, it hurt more, to see her go through it." Defendant thus made clear that the pressure he felt was reluctance to accept the plea bargain, and regret afterward. However, neither reluctance nor post-plea regret can provide good cause for withdrawal of a guilty plea. (People v. Knight (1987) 194 Cal.App.3d 337, 344.)
As the claim of judicial coercion had no merit, the motion would not have been granted on that ground. "The Sixth Amendment does not require counsel to raise futile motions. [Citations.]" (People v. Solomon (2010) 49 Cal.4th 792, 843, fn. 24.) Counsel's performance was thus not deficient due to her failure to urge the meritless ground of judicial coercion, and defendant's claim of ineffective assistance must fail. (See Rodrigues, supra, 8 Cal.4th at p. 1126.)
III. Belated Admission
Defendant contends that the trial court had no jurisdiction to take his admission the following day, because judgment had already been pronounced, and that his sentence must therefore be reduced to three years. He relies on People v. Hartsell (1973) 34 Cal.App.3d 8, which has no application to the facts of this case. There, after the defendant admitted prior convictions and was convicted of the charged crimes by a jury, the trial court forgot to enhance his sentence due to the prior convictions. (Id. at p. 11.) The court attempted to correct the error solely by including the prior convictions and enhanced sentence in the abstract of judgment. (Id. at p. 12.)
There are no such facts and no such issue here. Under the plea bargain, defendant was required to admit his prior arson conviction, but the court and prosecution forgot to take the admission. The court did not correct the error by entering a nonexistent admission into the abstract of judgment. The court called defendant back to court the very next day to take the admission as agreed under the plea bargain.
Section 1170, subdivision (d) provides that the trial court retains jurisdiction to recall a sentence and commitment on its own motion at any time within 120 days of the original sentence. The statute has been construed as "confer[ring] upon the trial court broad authority to 'recall a sentence on its own motion for any reason rationally related to lawful sentencing . . . .' [Citation.]" (People v. Lockridge (1993) 12 Cal.App.4th 1752, 1757.) For example, a trial court retains jurisdiction to recalculate a sentence to effectuate the terms of the plea bargain. (People v. Williams (2007) 156 Cal.App.4th 898, 907-909.) Further, the court may act within that time to avoid an unauthorized sentence. (Id. at p. 907.)
Although defendant agreed to a six-year term, the sentence could not exceed the three-year maximum authorized by law without the enhanced punishment due to the prior strike conviction. (See People v. Kim (2011) 193 Cal.App.4th 1355, 1363; see People v. Bryant (1992) 10 Cal.App.4th 1584, 1593 (Bryant):) On the other hand, a three-year term would also have been unauthorized because the People were entitled to the benefit of the plea agreement. (See People v. Segura (2008) 44 Cal.4th 921, 930-931; People v. Kaanehe (1977) 19 Cal.3d 1, 13-14.) Thus, once the trial court accepted the bargain and defendant entered a plea in furtherance of it, the circumstances required the trial court to proceed exactly as it did.
Defendant suggests that the court's procedure implicated double jeopardy. We disagree. A similar argument was made in Bryant. In that case, the defendant had intended to enter a plea to all charges; when the trial court took the plea, it forgot to obtain defendant's admission to a sentence enhancing allegation, but sentenced him as though it had done so. (Bryant, supra, 10 Cal.App.4th at pp. 1594-1595.) Because the error could be corrected without affecting the convictions on the underlying substantive offenses, double jeopardy was not an issue. (Id. at pp. 1597-1598.) The same was true here.
What is required when the court forgets to take an agreed upon plea to a sentence enhancing provision "'is to return the proceedings to the point at which the court erred and reroute them to the proper track.' [Citation.]" (Bryant, supra, 10 Cal.App.4th at p. 1598.) Here, the trial court did just that, and did so well within the time permitted by section 1170, subdivision (d).
IV. Advisement of Rights
Defendant contends that the true finding on the prior conviction must be reversed, because he was not advised of his constitutional rights, including his right to confrontation and cross-examination, a jury trial, and the right against self-incrimination (Boykin-Tahl rights), as required under In re Yurko (1974) 10 Cal.3d 857, 863 (Yurko). In Yurko, the California Supreme Court held that before taking an admission to a prior conviction, "the trial court must advise the defendant and obtain waivers of (1) the right to a trial to determine the fact of the prior conviction, (2) the right to remain silent, and (3) the right to confront adverse witnesses. [Citation.]" (People v. Mosby (2004) 33 Cal.4th 353, 356 (Mosby), citing Yurko, supra, at p. 863.)
See Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
Yurko error does not require automatic reversal. (Mosby, supra, 33 Cal.4th at pp. 360-361.) Instead, "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. [Citation.]" (Id. at p. 361.)
Defendant contends that this is a "silent record" case, where there were no Boykin-Tahl advisements whatsoever, and thus, it cannot be inferred that defendant knowingly and intelligently waived his right to a trial on the prior convictions. (See Mosby, supra, 33 Cal.4th at pp. 361-362.) We disagree. The facts of this case show an "incomplete" advisement, which occurs when a defendant has been advised regarding his right to a jury trial, but not as to his right to confrontation and against self-incrimination. (Ibid.) When defendant was brought back to court to admit the prior conviction, he refused to do so at first. The trial court said, "Unless everybody waives jury, he's entitled to a jury trial." A recess was taken to allow defendant to confer with counsel, which he did "at some length." Defendant then interposed a motion to withdraw the no contest plea he had entered the day before. After the trial court denied the motion, the judge said, "If he wishes to admit that this conviction . . . is his, fine. If not, we'll have a jury trial on the prior alone. There are jurors available today." Then, the court said to the prosecutor, "Sometimes, when we've done jury trials on priors, . . . [w]e first have the jury . . . . They're simply to determine the prior." When defendant indicated his unhappiness at entering the plea the day before, the court replied, "What I need to know now is whether I'm going to bring in 35 jurors to decide if this is your prior conviction or whether you wish to admit that this is your prior conviction." Defendant was thus well advised that he had the right to a jury trial on his prior conviction.
Defendant was not informed of his trial rights to confrontation and against self-incrimination, and an express waiver was not elicited. However, just the day before, he had entered a no contest plea to count 1, after speaking at length with his attorney, who was with him when he entered his plea. The consequences and possible future consequences of the plea were explained to him in detail. The court and the prosecutor explained that the upper term of three years was doubled to six years due to his prior conviction. The prosecutor explained to defendant that he had a right to a jury trial "in this matter." The prosecutor also told defendant that he had the right to question any witnesses against him, to be represented by counsel at trial, to present a defense, use the court's subpoena power to call witnesses without cost, and to testify or not testify. Defendant stated that he understood all these rights and wished to give them up to change his plea.
Defendant suggests that any advisement of his right to a jury trial was negated by the court's following comments, which he describes as "inconsistent and confusing": "[W]e're not talking about a trial. You have been convicted on your plea"; and "It would be the shortest jury trial in history to prove that it's his conviction. You'd bring in your certified docket and prove it." Although stating that the trial would be the shortest in history was perhaps an exaggeration, trials to prove a prior conviction are, in fact, short, "'simple and straightforward,' often involving only a presentation by the prosecution 'of a certified copy of the prior conviction along with the defendant's photograph [or] fingerprints' and no defense evidence at all. [Citation.]" (Mosby, supra, 33 Cal.4th at p. 364.) It is doubtful that the court's comments caused any confusion.
Moreover, defendant admitted his prior conviction just 24 hours after he was advised of his trial rights, not simply as to his no contest plea, but "in this matter." At both times, he was represented by counsel, and was permitted to speak to her at length, and to address the court. We conclude that the totality of the circumstances demonstrate that defendant's admission was voluntary and intelligent. Thus, reversal is not required. (See Mosby, supra, 33 Cal.4th at pp. 360-361.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____, J.
CHAVEZ
We concur:
____, Acting P. J.
DOI TODD
____, J.
ASHMANN-GERST