Opinion
C085212
08-16-2018
THE PEOPLE, Plaintiff and Respondent, v. ROSE ANN FERGUSON, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MCYKCRTR2011774, SCCRCRF20161346)
Defendant Rose Ann Ferguson pled guilty to driving under the influence of alcohol causing injury and driving on a suspended license, and admitted allegations of causing great bodily injury, having a blood-alcohol content level over 0.20 percent, and a prior driving under the influence conviction in case No. MCYKCRTR2011774. The trial court sentenced her to a six-year state prison term, suspended execution of sentence, and placed defendant on five years' formal probation.
We dispense with a recitation of the facts of defendant's crimes as they are unnecessary to resolve this appeal.
Defendant subsequently violated and was reinstated on probation numerous times before being charged in case No. SCCRCRF20161346 with corporal injury to a cohabitant or significant other, a violation of Penal Code section 273.5, subdivision (a). The information additionally alleged pursuant to subdivision (f)(2) of section 273.5, that defendant had two convictions for violating section 243, subdivision (e) within the last seven years.
Undesignated statutory references are to the Penal Code.
Defendant pled no contest in this new case. The change of plea form stated that she was pleading no contest to a violation of section 273.5, subdivision (a). The form did not mention the prior conviction allegation but did specify that she could receive a maximum term of five years. At the change of plea colloquy, the trial court asked defendant "how do you plead to violating section 273.5 (a) of the Penal Code, a felony, corporal injury to a cohabitant or significant other," to which she pled no contest. As with the change of plea form, there was no mention of the prior conviction allegation, and defendant did not admit to any prior convictions and was not advised of her rights regarding them or the consequences of such an admission.
The trial court found defendant violated probation in the earlier case. Sentencing on both violations was deferred and defendant was ordered to go into a residential treatment program for six months. After defendant was denied acceptance into the program and was subsequently reinstated on probation, her probation was revoked after another probation violation.
Sentencing defendant in both cases, the trial court executed the previously imposed six-year term for the driving under the influence conviction and imposed a consecutive 16-month term for the corporal injury conviction for a total state prison term of seven years four months.
Defendant contends the trial court erred in imposing the 16-month term for the corporal injury count because that sentence could only be supported by defendant admitting prior conviction allegations that were not part of her plea. She asks us to modify her sentence to reflect a conviction for section 273.5 without the enhancements, a one-year term. The People admit the failure regarding the prior conviction allegation but ask us to remand the matter so the trial court can admonish defendant on the consequences of admitting the prior convictions. Defendant is right.
A violation of section 273.5 is punished as a misdemeanor or by two, three, or four years in state prison. (§ 273.5, subd. (a).) If the defendant has a prior conviction for "subdivision (d) of Section 243, or Section 243.4, 244, 244.5, or 245," then the punishment is two, four, or five years in state prison. (§ 273.5, subd. (f)(1).) If the defendant has a prior conviction for section 243, subdivision (e) within the last seven years, then the crime is punished by a two-, three-, or four-year state prison term. (§ 273.5, subd. (f)(2).)
In order to enhance punishment under section 273.5, subdivision (f), the People must give a defendant notice he or she may be sentenced under that provision. (People v. Wilford (2017) 12 Cal.App.5th 827, 836-837.) Further, a defendant has a right to a jury trial on all prior conviction allegations. (§§1025, subd. (b), 1158.) A defendant admitting a prior conviction must be advised of his or her constitutional rights and of the penal consequences of the admission before the admission can be valid. (People v. Cross (2015) 61 Cal.4th 164, 179-180.)
Defendant was never charged with a prior conviction that could support a four-year middle term under section 273.5, subdivision (f)(1). While the information alleged qualifying priors under subdivision (f)(2), that provision has the same felony sentence as the felony term for section 273.5, subdivision (a), two, three, or four years. Moreover, since defendant's plea form did not refer to either subdivision (f)(1) or (f)(2), and she did not admit or was advised of her rights and consequences of such an admission, she was convicted of a violation of section 273.5 without either of the subdivision (f) allegations. We shall modify her punishment on that count to one-third the middle term, one year.
The People's novel contention that we remand so defendant could admit her prior conviction and be advised of her rights is not supported by precedent, does not address the fact that defendant never admitted a prior conviction, and does not address how we could remedy this deficiency without violating defendant's privilege against self-incrimination. It is without merit. --------
DISPOSITION
The judgment is modified to reflect a consecutive one-year term for the violation of section 273.5, subdivision (a), for a total term of seven years in state prison. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract reflecting the modified judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Hoch, J.