Opinion
H047165
01-29-2021
THE PEOPLE, Plaintiff and Respondent, v. LEONARD JAMES FOX, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 18CR012248 )
Defendant Leonard James Fox waived his right to a preliminary examination and submitted to a court trial on the police reports on a charge of possession of contraband in prison (Pen. Code, § 4573.6, subd. (a)) and a strike (Pen. Code, § 1170.12, subd. (c)(1)) allegation under an agreement that limited his exposure to four years in prison. The trial court did not expressly advise defendant of any of his constitutional rights or obtain express waivers before defendant made this submission. Defendant waived his right to be present at the trial, but he did not waive his right to be present at sentencing. Defendant was not present at the trial. The court convicted him of the possession count and found the strike allegation true. At defendant's trial counsel's request, the court proceeded immediately to sentencing and sentenced defendant to four years in prison.
On appeal, defendant contends that the judgment must be reversed because he was not advised of and did not waive his constitutional rights before he submitted to a court trial on the police reports. We conclude that the record does not affirmatively demonstrate that defendant's submission was knowing, voluntary, and intelligent, and we therefore reverse the judgment.
Defendant also contends that the judgment must be reversed because he was deprived of his right to be present at the sentencing hearing. Since we conclude that his conviction is invalid, we need not address that issue. --------
I. BACKGROUND
Defendant was charged by complaint with possession of contraband in prison, and it was alleged that he had suffered a prior strike conviction. On June 26, 2019, defendant appeared in court for the setting of the preliminary examination, and the following colloquy occurred: "THE COURT: All right. So the Court's understanding is, there's going to be a waiver [of] the prelim. We'll proceed with the Complaint as the Information. There'll be a personal time waiver, and, then, we're going to set it for a court trial date. [¶] Mr. Fox, do you understand that you have the right to have a preliminary hearing, and, if you waive your right to the preliminary hearing, you're not going to see, be able to question or hear the evidence or the witnesses, or bring any witnesses and evidence of your own? And the next thing that's going to happen is, we're going to consider that Complaint, those charges, the Information, and we're going to go to trial on that Information. And it's going to be a court trial, and there will be no witnesses called. It will just be submitted on the police reports for me to decide. [¶] And that's what you want to do? [¶] THE DEFENDANT FOX: Yes, Your Honor. [¶] THE COURT: All right. And you waive your right to the preliminary hearing? [¶] THE DEFENDANT FOX: Yes, Your Honor."
Defendant waived time and asked "I don't have to be present?" The court replied: "You do not, if you wish to not be here, right." The court elicited defendant's trial counsel's agreement to defendant's desire not to be present and then stated: "Mr. Fox, we're going to grant you a 977 waiver, so you will not be brought to court on that day. After it's over, we'll be scheduling it for a sentencing date, but you will need to be here for that; okay?" Defendant said "Yes, Your Honor." The prosecutor noted that "[t]he Court trial that we entered into was for the lower term top, with the strike." The court agreed that "that's what we talked about in chambers."
Defendant was not present at the court trial a week later. The trial consisted entirely of the submission of documents for the court's consideration. The court found defendant guilty and found the strike allegation true, and it asked defendant's trial counsel "how did you want to proceed on sentencing?" Defendant's trial counsel responded: "I'll defer to the Court. But I did get word from Mr. Fox that he would like it sooner than later, if the Court can accommodate that." He then stated: "Let's have immediate sentencing, please." The court agreed and asked defendant's trial counsel if he had "any comments about sentencing?" The following colloquy then occurred: "MR. BUCKLES [defendant's trial counsel]: No. It was agreed upon that Mr. Fox would receive the low term of two years, doubled, pursuant to the strike allegation. [¶] THE COURT: Mr. Morgan, any comments? [¶] MR. MORGAN [the prosecutor]: That was the top, yes." The court sentenced defendant to the lower term of two years, doubled for the strike for a total term of four years in state prison. Defendant timely filed a notice of appeal.
II. DISCUSSION
The Attorney General concedes that defendant's submission to a court trial on the police reports was a "slow plea." A "slow plea" is a submission on documents that facially demonstrate guilt such that "conviction is a foregone conclusion" based solely on those documents. (People v. Sanchez (1995) 12 Cal.4th 1, 28, disapproved on a different point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Because such a submission is considered to be " 'tantamount to a plea of guilty,' " the submission must be "accompanied by . . . advisement and express personal waiver of three specific constitutional rights—the rights to a jury trial, to confront and cross-examine witnesses, and against self-incrimination." (People v. Cunningham (2015) 61 Cal.4th 609, 637.)
The Attorney General argues that defendant's submission was valid because "[a]ppellant would have clearly understood (1) from the waiver of his preliminary hearing and his right to bring his own evidence there and confront the evidence against him there, and (2) from his agreement to a court trial on the 'police reports' only, that he had a right to jury trial and a right to confront the evidence against him." The Attorney General contends that defendant's waiver of his right to a preliminary examination and agreement to submit the matter for a court trial on the police reports in and of themselves "constituted an express waiver of his right to a jury trial, and his right to confront the evidence against him." (Italics added.)
The Attorney General's argument ignores the fact that the record does not reflect any "express waiver" of defendant's "right to a jury trial." (Italics added.) Defendant's colloquy with the trial court did not include the slightest mention of a jury trial or suggest that defendant was aware that he could instead have elected to have a jury trial. The court simply told defendant that "we're going to set it for a court trial" and "it's going to be a court trial" without ever mentioning any alternatives. We reject the Attorney General's claim that there was an "express waiver" by defendant of his "right to a jury trial."
The Attorney General alternatively claims that the totality of the circumstances demonstrates that defendant's submission was voluntary and intelligent despite the absence of express advisements or express waivers. Even where "the defendant had not been expressly told of his rights, nor expressly waived them," a slow plea is nevertheless valid if, "based on the totality of the circumstances, . . . the defendant's admission in any event was voluntarily and intelligently made." (People v. Allen (1999) 21 Cal.4th 424, 438.) The slow plea will be valid if "the record in this case affirmatively shows that defendant's [submission] constituted a knowing and voluntary waiver of his constitutional rights." (People v. Howard (1992) 1 Cal.4th 1132, 1179, disapproved on a different point in People v. Rhoades (2019) 8 Cal.5th 393, 425, fn. 12.)
While there need not be express advisements or express waivers, a slow plea cannot be upheld unless the record "affirmatively" demonstrates "a knowing and voluntary waiver" of the right to a jury trial. (Howard, supra, 1 Cal.4th at p. 1179.) The Attorney General relies on three facts to support his claim that defendant's submission was knowing and voluntary. First, defendant agreed to a court trial on the police reports. Second, defendant was represented by counsel. Third, defendant had suffered prior convictions.
None of these facts affirmatively demonstrates that defendant knew he had a right to a jury trial. His agreement to a court trial on the police reports reflects his understanding that he would not be able to confront witnesses, but it says nothing about his knowledge of his right to a jury trial. The fact that he was represented by counsel does not affirmatively demonstrate that his counsel told him of his right to a jury trial. While that might be a reasonable inference to draw, the record contains no affirmative demonstration that his counsel did so. Finally, the fact that defendant had suffered two prior convictions, both by plea, does not affirmatively demonstrate that he was aware of his right to a jury trial on the current in-prison offense. While an inference might be drawn that he was advised of his right to a jury trial when he entered those pleas, the record before us does not affirmatively demonstrate that such advisements were given.
Nothing in the record of defendant's waiver of his right to a preliminary examination and his agreement to a court trial on the police reports tells us anything about his awareness of his right to a jury trial. The record does not affirmatively demonstrate that anyone ever mentioned to defendant that, instead of a court trial, he had the right to choose to have a jury trial. Consequently, our review of the entire record rebuts the Attorney General's claim that the totality of the circumstances affirmatively demonstrates that defendant knowingly and voluntarily waived his right to a jury trial. Accordingly, we cannot uphold the judgment.
III. DISPOSITION
The judgment is reversed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
BAMATTRE-MANOUKIAN, J.