Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F869
ROBIE, J.
A jury found defendant Michael Dean Demello guilty of assault with a deadly weapon. Defendant admitted two prior strike enhancements. The trial court sentenced him to four years for the assault conviction and an additional two years for the strike enhancements for a total of six years in prison.
On appeal, defendant contends the trial court erred in refusing to instruct on his theory of self-defense. Defendant also contends the trial court violated his federal constitutional rights to a jury trial and due process by failing to advise him of his rights prior to admission of his prior convictions. In addition, defendant contends the trial court erred in failing to advise him of the penal consequences of admitting the two prior convictions. We disagree with defendant and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the night of November 18, 2006, John Vert was watching TV in his motor home. Vert had been drinking since 3:00 p.m. and had consumed five to six beers. Three men came to his door and one of them asked him to come outside and have a beer. Vert recognized the voice as belonging to “John.” Vert then grabbed his Maglite before he went outside because he had no light outside of his motor home
When Vert stepped outside he was “sucker punched” by defendant. Vert then dropped his Maglite and tried to run away. Vert fell into a bush and defendant grabbed the Maglite and began to beat Vert with it. Defendant hit Vert in the back of the head and also his hands and forearms as Vert was trying to fend off the blows. After the assault, defendant and the two other men got in a car and drove away.
Vert went to Patricia Sloan’s house for assistance. Vert was bleeding profusely from his head and was dazed, dizzy, and disoriented when he arrived at Sloan’s house. Sloan could not stop the bleeding so she called 911 for help. Vert received three staples in his head for the wound.
Redding Police Officer Bart Langley spoke with defendant on December 11, 2006. Defendant said he, “John,” and “Cisco” went to Vert’s residence on November 11 to “talk to him.” Defendant said there was an argument with Vert. Defendant took the Maglite away from Vert who then ran, fell down, and hit his head. Defendant said he “may have used the flashlight to hit [Vert], but he couldn’t remember because he was on medication.” Defendant did not say that at any point he was in fear of his safety from being attacked by Vert.
Redding Police Corporal Eric Niver spoke with defendant over the phone on January 16, 2007. Defendant said he, “John,” and “Cisco” went to Vert’s house to tell him to stop talking about someone named “Sonny.” Defendant said Vert came out of his motor home “irate and drunk and swinging a mag light [sic].” Defendant said Vert swung the Maglite at him twice and he then took the Maglite from Vert and dropped it on the ground. Defendant said he “followed or chased” Vert until Vert “fell into some bushes.” Defendant said he did not strike Vert during the encounter.
After the People concluded their case, defense counsel notified the court that defendant did not intend to testify. The trial court explained to defendant that he had “the right to testify” and the “right to remain silent and not testify,” which defendant acknowledged. The court then asked defendant if he understood that it was his decision whether to testify and not his attorney’s decision. Defendant acknowledged that he understood. Defendant affirmed that his attorney answered all of his questions and that he had enough information to decide not to testify. The trial court found that defendant understood his right to testify and “knowingly and voluntarily and intelligently” gave up his right to testify.
Before closing argument, defense counsel requested the jury be instructed on self-defense. The trial court declined to instruct the jury on self-defense because there was “no evidence to support” it. The court noted that, in both his conversations with police officers, defendant said he took the Maglite from Vert who then ran and fell down. Although defendant said he might have hit Vert, but could not remember, the trial court found there was no evidence that defendant “was exercising any self-defense” because defendant said Vert never assaulted him. The court did not give the self-defense instruction.
After the jury began deliberating, the issue of the prior felony convictions was discussed. The following colloquy ensued:
“The Court: Does [defendant] intend to give up his right to a jury trial?
“[Defense Counsel]: Yes. I discussed the matter with him and what’s required as proof in these matters; mainly just paper proof. He has decided that if a guilty verdict is returned the Court can hear the enhancements; is that correct, sir?
“The Defendant: Yes.
“The Court: Sir, do you understand that you have the right to have the jury decide whether or not the special allegations are true?
“The Defendant: Yes.
“The Court: And when I say special allegations, I’m referring to the special allegation that you have a prior felony with a prison term and you did not stay out of prison for five years before you allegedly committed the new offense. That is [the] first one; do you understand that?
“The Defendant: Yeah.
“The Court: And the second one is that you have a another prior felony with a prison term. The first one dealt with the conviction for possession of a controlled substance, the second one deals with the conviction for being a felon in possession of a firearm. So you understand those are the two special allegations I’m referring to?
“The Defendant: Yes.
“The Court: If the jury decides this, that means the People would have to prove to the jury beyond a reasonable doubt that those allegations are true; do you understand that?
“The Defendant: Yes.
“The Court: If you give up the right to a jury trial, that means the Court, I, will be deciding and the People will have to prove to me that those allegations are true beyond a reasonable doubt; do you understand that?
“The Defendant: Yes.
“The Court: Have you had all the time that you need to discuss this decision with your attorney?
“The Defendant: Yeah.
“The Court: Have you asked him all the questions that you want to ask him about this decision?
“The Defendant: Yes.
“The Court: Has he answered your questions to your satisfaction?
“The Defendant: Yes.
“The Court: Do you have all the information that you need to make that decision?
“The Defendant: Yes.
“The Court: The Court finds the defendant understands his right to a jury trial for the special allegations and knowingly and voluntarily gives up that right and agrees to give up his right to have the jury decide that and agrees that the judge will decide that. And that at a later time it will be helpful to know whether he is going to admit the prior or whether there will be the court trial.”
The jury then returned a verdict of guilty of assault with a deadly weapon. The court discussed with both parties how the bifurcated special allegations were going to proceed. The following colloquy ensued.
“The Court: Is [defendant] going to be admitting to the second special allegation?
“[Defense Counsel]: Yes, we’re prepared to admit the second allegation. Clearly, that is within the five year period. We’re prepared to admit that one.
“The Court: While you’re looking in the file with regard to special allegation number one, let me cover this with the defendant as to special allegation number two.
“Sir, as to both the special allegations, you have the right to have the prosecution prove to this Court beyond a reasonable doubt that it is true, that you had a prior felony, that you served time in prison, and that did you not remain free of prison for a period of five years before committing this new offense that you’ve just been convicted of. Now, you have the right to give up the right to the trial and admit the truth of the special allegations, but I want to make sure that you understand you have the right to that trial. And that if we had the trial, you have the right to cross-examine any witnesses. I don’t believe there will be any witnesses. It is all going to be exhibits; correct, [prosecuting attorney]?
“[Prosecuting Attorney]: That’s correct, your Honor.
“The Court: And you would have the right to present your own evidence. You’d have the right to testify yourself
“The Defendant: I did it.
“The Court: I have to go through this. You have the right to present your own evidence and use the subpoena power of the court to bring any witnesses and the evidence favorable to you. So we have to cover your knowledge about your rights. Do you understand that you have the right to have that trial?
“The Defendant: Yep.
“The Court: And are you giving up that right?
“The Defendant: Yes.”
Defendant then admitted that he had a prior prison term from which he had not been out of prison for five years before committing this crime. The court then had the following colloquy with defendant regarding the other special allegation.
“The Court: [Defendant], do you want to confer further with your attorney with regard to whether or not you’re having a trial as to the first special allegation, the ’97 conviction, or are you ready to proceed?
“The Defendant: I’m ready to proceed.
“The Court: Do you understand that you have the right to trial as to whether that special allegation is true?
“The Defendant: Uh-huh.
“The Court: Your answer?
“The Defendant: Yes.
“The Court: And you are giving up your right to trial as to that special allegation?
“The Defendant: Yes.”
Defendant admitted he had another prior prison term from which he had not been out of prison for five years before committing this crime. He received an additional two years for the two prior enhancements. Defendant timely appealed.
DISCUSSION
Defendant argues that his constitutional rights were violated when the trial court declined to give the jury a self-defense instruction. Defendant also argues that his constitutional rights were violated because the trial court did not give him a full advisement of his rights and penal consequences before he waived his right to a trial and admitted the special allegations.
I
The Trial Court Did Not Err In Denying The Self-Defense Instruction Because Substantial Evidence Did Not Support It
Defendant contends his constitutional right to a fair jury trial was violated because the jury was not instructed on self-defense as he requested. We find the trial court did not err in denying a self-defense instruction because it was not supported by substantial evidence. Further, because there was no error there was no constitutional violation.
A
Legal Standard
“‘“The trial court functions both as a neutral arbiter between two contesting parties and as the jury’s guide to the law. This role requires that the court fully instruct the jury on the law applicable to each particular case. ‘“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.”’”’” (People v. Watie (2002) 100 Cal.App.4th 866, 876, italics added, quoting People v. Daya (1994) 29 Cal.App.4th 697, 712.)
A trial court may “‘properly refuse an instruction offered by the defendant if it . . . is not supported by substantial evidence.’” (People v. Hovarter (2008) 44 Cal.4th 983, 1021, quoting People v. Moon (2005) 37 Cal.4th 1, 30.) Substantial evidence is evidence “‘of ponderable legal significance . . . reasonable in nature, credible, and of solid value.’” (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting Estate of Teed (1952) 112 Cal.App.2d 638, 644; see People v. Bassett (1968) 69 Cal.2d 122, 139.) “‘Obviously the word cannot be deemed synonymous with “any” evidence.’” (Bassett,at p. 139.) The reviewing court “‘must resolve the issue in light of the whole record’” and “may not limit its review to the evidence favorable to the respondent.” (Johnson,at p. 577, quoting Bassett,at p. 138.)
B
Substantial Evidence Did Not Support The Self-Defense Instruction
Defendant contends the jury could have believed his one statement to police that Vert was irate and drunk, swinging the Maglite at him and therefore his assault was justified in self-defense. Defendant contends that because a jury could have believed this version, it was error to not instruct on self-defense. We disagree.
“For an assault to be in self-defense, the defendant must actually and reasonably believe in the need to defend.” (People v. Jefferson (2004) 119 Cal.App.4th 508, 518.) Reasonableness is judged “‘from the point of view of a reasonable person in the position of defendant.’” (Ibid., quoting People v. McGee (1947) 31 Cal.2d 229, 238.) The finder of fact “‘must consider all the “‘“facts and circumstances . . . in determining whether the defendant acted in a manner in which a reasonable man would act in protecting his own life or bodily safety.”’”’” (Jefferson, at p. 518, quoting People v. Moore (1954) 43 Cal.2d 517, 528.)
On review, the trial court did not err in declining to instruct the jury on self-defense because such an instruction was not supported by substantial evidence. The only evidence tending to show that defendant actually believed in the need to defend himself comes from his last conversation with the police where he stated, for the first time, that Vert came out of his motor home “‘irate and drunk and swinging a mag light [sic].’” Defendant at no other point offered evidence that tended to show he reasonably believed in the need to protect his own life or bodily safety. Rather defendant told police that he took the flashlight from Vert and dropped it on the ground. He admitted to chasing after Vert. He also admitted to possibly hitting Vert. Moreover, Vert’s testimony was that defendant “sucker punched” him and took the flashlight, chased after Vert, and then proceeded to beat him about his head and hands causing a laceration to his head so severe that Vert received three staples to repair it. The evidence also showed that defendant and his accomplices went to see Vert for the specific purpose of confronting him regarding money and his “talking shit” about Sonny. This does not support self-defense.
Defendant is merely attempting to point to one piece of evidence in isolation to support his claim of self-defense. However, this one piece of evidence is not substantial evidence to support such an instruction to the jury. Therefore, the trial court did not err in refusing the instruction.
C
Defendant’s Federal Constitutional Right To A Fair Jury Trial Was Not Violated
Defendant’s argument that his Sixth Amendment right to a fair jury trial was violated is premised on the argument that failing to instruct the jury on self-defense was error. However, as discussed, there was no error and therefore defendant’s federal constitutional rights were not violated.
II
The Trial Court Did Not Violate Defendant’s Constitutional Rights In Taking The Plea
Defendant contends his federal constitutional rights to a jury trial and due process were violated because the trial court did not fully advise him of his rights before it accepted his admission of the two prior convictions. Defendant also asserts the trial court committed reversible error because it did not warn him of the penal consequences of the admission of the prior convictions. We disagree.
A
Legal Standard
Before a trial court can accept an accused’s admission of prior felony convictions the accused must be advised of: (1) the right against compulsory self-incrimination; (2) the right to confrontation; and (3) the right to a jury trial. (People v. Mosby (2004) 33 Cal.4th 353, 359-360, citing Boykin v. Alabama (1969) 395 U.S. 238, 243 [23 L.Ed.2d 274, 279], In re Tahl (1969) 1 Cal.3d 122, 132, In re Yurko (1974) 10 Cal.3d 857, 863.) A defendant need not be advised of all these rights if “‘the record affirmatively shows that [the admission] is voluntary and intelligent under the totality of the circumstances.’” (Mosby, at p. 360, italics omitted, quoting People v. Howard (1992) 1 Cal.4th 1132, 1175.) The pertinent inquiry is “whether the defendant’s admission was intelligent and voluntary because it was given with an understanding of the rights waived.” (Mosby,at p. 361.) “[I]f 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., quoting People v. Allen (1999) 21 Cal.4th 424, 438.)
These constitutional rights will hereinafter be referred to as defendant’s Boykin-Tahl rights.
In addition to advising an accused of his constitutional rights, a trial court must also advise the accused of the penal consequences of admitting a prior conviction. Our Supreme Court stated that “as a judicially declared rule of criminal procedure [citation] an accused, prior to the time the court accepts his admission of an allegation of a prior criminal conviction or convictions, is entitled to be advised: (1) that he may thereby be adjudged an habitual criminal . . . (2) of the precise increase in the term or terms which might be imposed, if any . . . and (3) of the effect of any increased term or terms of imprisonment on the accused’s eligibility for parole.” (In re Yurko, supra, 10 Cal.3d at p. 864.) A defendant “is entitled to relief based upon a trial court’s misadvisement only if the defendant establishes that he or she was prejudiced by the misadvisement, i.e., that the defendant would not have entered the plea of guilty had the trial court given a proper advisement.” (In re Moser (1993) 6 Cal.4th 342, 352, citing People v. Walker (1991) 54 Cal.3d 1013, 1022-1023.) Any “error is waived absent a timely objection.” (Walker,at p. 1023.)
B
The Trial Court Did Not Err In Its Advisement Of Defendant’s Constitutional Rights
Defendant contends that given the totality of circumstances, it cannot be shown that he was aware of his Boykin-Tahl rights because the record does not show whether he was advised of them in his previous convictions and he was not fully advised of them here. We disagree.
It is of note that defendant was advised of his right to a jury trial and his right to confrontation. The only Boykin-Tahl right not specifically enumerated was the right to not testify. However, defendant overlooks the fact that he had just completed a jury trial where he was aware of his right to not testify and chose to exercise that right. This evidences knowledge of that right. The Supreme Court found the same to be true in Mosby. There the defendant had undergone a jury trial where he did not testify and the court found that “he not only would have known of, but had just exercised, his right to remain silent at trial.” (People v. Mosby, supra, 33 Cal.4th at p. 364.) The same can be said for defendant here. He exercised his right to not testify at the immediately concluded trial, therefore he certainly understood that he had the right not to testify even though the court stated he had “the right to testify.”
Defendant was specifically advised of two of his Boykin-Tahl rights and was aware of the third from his exercise of that right at trial. Based on the totality of circumstances, we find defendant’s waiver of his Boykin-Tahl rights was intelligently and voluntarily made. Therefore, we find no error.
C
Any Error From The Trial Court’s Failure To Advise Defendant Of The Penal Consequences Of Admitting The Prior Enhancements Was Forfeited
We find it was error to not advise defendant of the penal consequences of admitting the special allegations. Defendant faced an additional two years in prison for admitting the special allegations and the record is devoid of the trial court’s ever advising defendant of the consequence of such an admission. However, because defendant did not timely object, any error is forfeited. (People v. Walker, supra, 54 Cal.3d at p. 1023 [any error in failure to advise of the consequences of a plea “is [forfeited] if not raised at or before sentencing”].)
DISPOSITION
The judgment is affirmed.
We concur: MORRISON, Acting P. J., BUTZ, J.