Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS082297
McAdams, J.
Following a court trial, defendant was convicted of assault with a deadly weapon and possession of methamphetamine. (Pen. Code § 245, subd. (a)(1); Health & Saf. Code § 11377, subd. (a).) He was sentenced to state prison for a term of three years on the assault, with a concurrent term of two years on the drug possession count. On appeal, he argues that the drug possession count must be reversed because he was not advised of, and did not waive, his constitutional rights to a trial, confrontation of witnesses, and his privilege against self incrimination when his attorney stipulated to a guilty finding on that count. We reverse.
STATEMENT OF THE CASE
Defendant was charged by information with attempting to murder (count 1) and assaulting with a deadly weapon (count 2) Salvador Marquez on August 31, 2008. He was also charged with possessing methamphetamine on September 3, 2008. (Pen. Code §§ 664/187, 245, subd. (a)(1); Health & Saf. Code § 11379, subd. (a).) The information further alleged use of a deadly weapon in the commission of the attempted murder, and a prior prison term. (Pen. Code §§ 12022, subd. (b)(1), 667.5, subd. (b).)
On April 23, 2009, defendant and the People waived jury trial on counts 2 and 3 and the prior prison term allegation. The prosecutor agreed to dismiss count 1 and limit defendant’s maximum exposure in the event of conviction to four years and eight months. Prior to making his waiver, defendant was advised that by waiving jury trial on counts 2, 3 and the prior prison term allegation, he would be giving up the right to have “12 people... decide whether or not you are guilty and whether or not the allegation is true.” Instead, “it would be this Court that would – a judge would make the decision alone as to whether or not you’re guilty and/or whether or not the enhancement is true.” Defendant indicated that he understood.
On May 13, 2009, defendant’s case came on for court trial on counts 2, 3, and the prior prison term allegation. The prosecutor called two witnesses, Samantha Tomasini and Salvador Marquez, to testify about the assault. The prosecutor presented no evidence with respect to the methamphetamine possession count. Instead, at the close of the People’s case in chief, the prosecutor informed the court that “[a]s to the facts pertaining to Count 3, I believe [defense counsel] has a stipulation.” Defense counsel then stated: “On or about August 31, 2008 Mr. Guajardo had in his possession methamphetamine, consistent for a usable quantity and for personal use.” The prosecutor accepted that stipulation and added: “If we could just stipulate these events took place..., if they took place, on... August 31, 2008” in Monterey County. As amended, the stipulation was accepted by defense counsel. The parties also stipulated to certain testimony by Officer Arensdorf concerning the assault which is not relevant to this appeal.
Following the stipulation, the People rested and defendant testified in his own behalf about the altercation between him and Mr. Marquez. Detective James Arensdorf testified for the prosecution in rebuttal regarding the assault count. The parties gave closing arguments. With respect to count 3, the methamphetamine possession count, defense counsel argued: “And I know there’s sufficient evidence at this point for the... 11377. I’ll submit it on that.”
The court found defendant guilty of both counts. Defense counsel asked the court to dismiss the prior prison term allegation “as there was no evidence.” The court did so.
On June 18, 2009, defendant was sentenced to state prison to the midterm of three years on the assault conviction, with a concurrent midterm of two years on the methamphetamine possession conviction.
STATEMENT OF FACTS
The facts underlying defendant’s assault conviction are not pertinent to the sole issue raised in this appeal and may be briefly summarized. Samantha Tomasini, Salvador Marquez, and Tomasini’s then-boyfriend, went to visit defendant at the apartment building in which defendant lived at 2:00 a.m. on August 31, 2008. Defendant was in the kitchen adjacent to the common area on the first floor of the building. According to Tomasini, defendant and Marquez looked at each other and defendant “just got mad.” Defendant had a knife in his hand. He grabbed Marquez by the shirt. The two men were up against a wall. Other people tried to separate them. Tomasini claimed she did not see the actual stabbing.
Marquez confirmed that defendant “appeared pretty pissed off” to see him. Defendant said something, opened a kitchen drawer, grabbed a knife, and punched him “in the nasal cavity” with the hand that held the knife. Then defendant punched him in the abdomen. At first, Marquez did not know he had been stabbed. Marquez ran out of the building and into the street. He felt something wet and saw that he was bleeding. After that, the ambulance and the police came.
Defendant testified that he was in the kitchen preparing to cook a steak, using a knife, when Marquez entered the kitchen and grabbed him by the shirt. Defendant grabbed Marquez back and the two pushed each other around. Defendant hit Marquez in the face with the hand that held the knife. Then he punched Marquez in the side. Marquez “kind of fell on top of [the knife].” Defendant felt threatened by Marquez “[a]nd I kind of defended myself at the time.” Afterwards, defendant felt confused and “went for a walk... to get some air.”
As noted above, no evidence, save the stipulation, was presented at trial on the drug charge. At the preliminary hearing, Officer Arensdorf of the Salinas Police Department testified that he arrested defendant on September 4, 2008, at his residence and conducted a search incident to that arrest. In defendant’s right front pocket, Arensdorf located a cylindrical tube containing four small baggies containing a substance which appeared to be methamphetamine. Defense counsel offered to stipulate for the purposes of the preliminary hearing that the substance was methamphetamine in a useable quantity for personal use, and the prosecutor accepted that stipulation.
DISCUSSION
Citing this court’s decision in People v. Little (2004) 115 Cal.App.4th 766 (Little), defendant argues that his conviction for methamphetamine possession must be reversed because the court accepted trial counsel’s stipulation to the factual elements of a Health and Safety Code section 11377 violation without ever advising him of his constitutional rights to a court trial, confrontation of witnesses and privilege against self incrimination, or securing his waiver of those rights. Defendant further argues that the error is not harmless, because the record “discloses no evidence from which to infer that defendant knew the stipulation would effectively waive his right[s].”
The Attorney General does not dispute that error occurred. He assumes that Little was correct in concluding that a stipulation that admits every element necessary to sustain a conviction triggers a duty to give constitutional advisements and obtain waivers. (Little, supra, 115 Cal.App.4th at p. 776.) Although he notes that defense counsel’s stipulation did not expressly admit knowing possession, he also acknowledges that the prosecutor presented no evidence in support of the charge, and defense counsel did not argue for acquittal but instead conceded in closing argument that the “evidence” presented – that is, the stipulation – was sufficient for conviction. We agree with the Attorney General that, “[u]nder these circumstances, when the parties treated the stipulation as complete and uncontested proof of the offense, we shall assume that the stipulation was the functional equivalent of a guilty plea.” We conclude that the stipulation was tantamount to a guilty plea and, like a guilty plea, it triggered the duty to give advisements and obtain waivers. (Little, at p. 776.) The Attorney General asserts, however, that the error was harmless.
Prior to People v. Howard (1992) 1 Cal.4th 1132 (Howard), California law viewed the failure to advise a defendant of his constitutional rights or secure his waiver of them prior to accepting a guilty plea or admission of a prior conviction – known as Boykin-Tahl (plea) or Yurko (prior conviction admission) error – as automatically reversible, regardless of prejudice. In Howard, however, our Supreme Court determined that “Yurko error involving Boykin/Tahl admonitions should be reviewed under the test used to determine the validity of guilty pleas under the federal Constitution. Under that test, a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.” (Howard, supra, 1 Cal.4th at p. 1175.) Thus, although the trial court in Howard did not admonish the defendant concerning his privilege against self-incrimination, the Supreme Court nonetheless concluded that the defendant’s admission of the prior conviction was voluntary and intelligent from a review of the totality of the circumstances. (Id. at p. 1180.) Subsequent to Howard, however, some courts of appeal questioned the wisdom of applying a harmless error test in this context and declined to review the record in the manner directed by the Howard court. (People v. Howard (1994) 25 Cal.App.4th 1660; People v. Garcia (1996) 45 Cal.App.4th 1242; People v. Carroll (1996) 47 Cal.App.4th 892; People v. Van Buren (2001) 93 Cal.App.4th 875.) In People v. Mosby (2004) 33 Cal.4th 353 (Mosby), our Supreme Court reiterated its commitment to application of a harmless error analysis of Boykin-Tahl-Yurko error and elaborated that “[i]n replacing the old rule, the focus was shifted from whether the defendant received express rights advisements, and expressly waived them, to whether the defendant’s admission was intelligent and voluntary because it was given with an understanding of the rights waived. After our Howard decision, an appellate court must go beyond the courtroom colloquy to assess a claim of Yurko error. [Citation.] Now, 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.” (Mosby, at p. 361.) However, with respect to “[t]ruly silent-record cases... that show no express advisement and waiver of the Boykin-Tahl rights before a defendant’s admission of a prior conviction, ” the Court stated: “In such cases, in which the defendant was not advised of the right to have a trial on an alleged prior conviction, we cannot infer that in admitting the prior the defendant has knowingly and intelligently waived that right as well as the associated rights to silence and confrontation of witnesses.” (Mosby, supra, 33 Cal.4th at pp. 361-362.)
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122, disapproved on another point in Mills v. Municipal Court (1973) 10 Cal.3d 288, 307; In re Yurko (1974) 10 Cal.3d 857.
In the case before the Mosby court, immediately after the jury returned a guilty verdict, the defendant was advised that he had a right to a jury trial on the prior conviction. He waived that right and admitted the truth of the allegation. The Court held that the totality of the circumstances supported a finding that “defendant voluntarily and intelligently admitted his prior conviction despite being advised of and having waived only his right to a jury trial.” (Mosby, supra, 33 Cal.4th at p. 365.) Important considerations included the fact that defendant “had just undergone a jury trial” at which he did not testify but his codefendant did, indicating that he understood he had a right to remain silent at trial, thereby “forcing the prosecution to prove he had sold cocaine.” (Id. at p. 364.) In addition, at the trial that had just concluded, his attorney had confronted witnesses, indicating that defendant “would have understood that at a trial he had the right to confrontation.” (Ibid.) Finally, the court also considered defendant’s prior experience with the criminal justice system “relevant to a recidivist’s ‘ “knowledge and sophistication regarding his [legal] rights.” ’ ” (Id. at p. 365.) In a footnote, the Court disapproved People v. Van Buren, supra, 93 Cal.App.4th 875, People v. Carroll, supra, 47 Cal.App.4th 892, People v. Garcia, supra, 45 Cal.App.4th 1242, People v. Torres, supra, 43 Cal.App.4th 1073, and People v. Howard, supra, 25 Cal.App.4th 1660, to the extent they were inconsistent with its holding in Mosby. (Mosby, supra, 33 Cal.4th at p. 365, fn. 3.) All were cases which the Mosby court had earlier in the opinion characterized as showing incomplete advisements and waivers rather than being “[t]ruly silent-record cases.” (Mosby, at p. 361.)
Relying on Mosby, the Attorney General argues that the totality of the circumstances in this case demonstrate that defendant voluntarily and intelligently stipulated to his guilt on the methamphetamine possession count. The totality of those circumstances are that: (1) the preliminary hearing transcript established a strong factual basis for conviction on the drug possession count; (2) the negotiated agreement limited defendant’s exposure to prison time to four years, eight months in return for a waiver of jury trial; (3) the prosecutor had concluded his case-in-chief by the time the parties announced their stipulation; and (4) defendant had a long criminal record going back to 1972. From these facts, he asks us to infer that defendant, without being so informed, understood that when his attorney stipulated that he possessed a useable quantity of methamphetamine for his personal use on August 31, 2008, defendant gave up his right to have the judge decide, after a trial at which witnesses testified, whether he was guilty of methamphetamine possession on that date. We are also asked to infer that defendant understood that the prosecutor was no longer required to bring in any witnesses to prove that he possessed methamphetamine on that date, and that he was giving up his privilege against self incrimination as to the drug possession charge, even though defendant chose not to admit that charge when he testified. We are not persuaded.
We agree that the preliminary hearing transcript established a strong factual basis for the methamphetamine possession count. However, at the preliminary hearing, defense counsel stipulated to the fact that the substance found on defendant on September 3, 2008, was methamphetamine for the purposes of the preliminary hearing only. When defendant later waived jury, he was specifically informed, and stated that he understood, that he would have a trial on the assault and methamphetamine possession counts as well as the prior conviction allegation, and at that trial the court would make the determination of the truth of both charges and the prior conviction allegation. Nothing in the taking of the jury waiver informed him that court findings against him were a foregone conclusion, or a condition precedent to the limited maximum exposure. Contrary to the Attorney General’s argument, we do not read the jury waiver transcript as promising defendant “[a] four-year eight-month sentence” which “could only have been reached by imposing the three-year midterm for the assault, a consecutive eight-month (one-third the midterm) sentence for the drug offense, and a consecutive one-year term for the prison prior.” As we read the transcript, defendant’s maximum exposure was limited by the prosecutor’s agreement to drop the attempted murder count, and that a term of four years, eight months was the greatest sentence defendant could receive, if the court found him guilty of counts 2, 3 and the prior prison term, which findings were not a foregone conclusion. Even considering the evidence adduced at the preliminary hearing, in conjunction with the jury waiver, we see nothing that would have led defendant to understand that by agreeing to a court trial, he would in effect be pleading guilty to possession of methamphetamine on August 31, 2008.
In Mosby, the defendant had just been convicted after a jury trial at which prosecution witnesses had testified against him and his codefendant had testified, but he had not testified. Thus, the Court was able to infer that the defendant understood and gave up his rights to a jury, a trial, confrontation, and his privilege against self incrimination when the trial court informed him that he had a right to a jury trial on the prior conviction, he waived that right, and then admitted the prior conviction.
The situation here is not comparable to the one in Mosby. The stipulation here occurred mid-trial and, unlike the situation in Mosby, no one mentioned to defendant, at the time of the stipulation, that he had a right to a trial on the methamphetamine possession which he would be giving up by virtue of his attorney’s stipulation. Here, two witnesses had testified as to the assault in the prosecutor’s case in chief, but none had yet testified about the methamphetamine possession when defense counsel proferred her stipulation that defendant had possessed a useable quantity of methamphetamine for his personal use on a different day than the one proven at the preliminary hearing or charged in the information. He did not personally assent to the stipulation. After the stipulation, defendant waived his privilege against self incrimination as to the assault by testifying about it, but he remained silent on the methamphetamine possession, and the prior conviction, in his testimony. For all the record here shows, up to the time defense counsel informed the court during closing argument that the evidence was sufficient to convict defendant of methamphetamine possession, defendant may reasonably have expected that, like the prior conviction enhancement, the methamphetamine possession charge would be dismissed for lack of evidence. We cannot infer from this scenario that defendant implicitly understood that by maintaining his silence on the methamphetamine charge during his testimony, and failing to speak up when his attorney admitted that he possessed methamphetamine on a different day than the one proven at the preliminary hearing or charged in the information, he had, in effect, just pleaded guilty to methamphetamine possession on August 31, 2008, and thereby given up his right to confront witnesses to the charge, his privilege against self incrimination, and the right to have the trial court “consider and evaluate the weight of the evidence concerning this charge....” (Little, supra, 115 Cal.App.4th at p. 779.) Instead, the court “was required to accept as a fact that defendant violated the law, and as a result, all it had to do was enter the guilty verdict preordained by the stipulation.... Thus, the [court] here did not have to perform the traditional functions that attend a determination of guilt. Rather, in substance, the [court] performed a procedural function similar to that performed by the court when it accepts a guilty plea or admission concerning the truth of an enhancement allegation; similar, but with one important difference. Unlike defendants in those situations, defendant here was not advised of any of his constitutional rights, he was not told that the stipulation would require total or partial surrender of those rights, and he did not waive any of those rights.” (Ibid.) The present record does not permit us to draw the inference that defendant’s stipulation was knowing and voluntary.
Nor can the inference of a voluntary and intelligent waiver be supplied in this case by defendant’s long criminal history. While defendant’s familiarity with the criminal justice system is relevant to his knowledge and sophistication regarding his legal rights, nothing in this record suggests that defendant had any prior experience with stipulations that were tantamount to a guilty plea. Under such circumstances, we decline to infer from the defendant’s familiarity with the criminal justice system a knowing and voluntary waiver of constitutional rights in connection with a stipulation that “implicitly and necessarily covered all evidentiary facts required [for] conviction and imposition of punishment.” (Little, supra, 115 Cal.App.4th at p. 778; People v. Campbell (1999) 76 Cal.App.4th 305, 310.)
CONCLUSION
Defendant was not expressly advised that defense counsel’s stipulation was tantamount to a guilty plea, nor did he waive his constitutional rights to a court trial, confrontation of witnesses or privilege against self incrimination as to that charge. The totality of the circumstances do not permit the inference that defendant voluntarily and intelligently waived the constitutional rights implicated by the stipulation. Therefore, the failure to advise defendant and obtain his waivers concerning his constitutional trial rights was not harmless. Defendant’s conviction for violating Health and Safety Code section 11377 must be reversed.
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court for possible retrial on the charge under Health and Safety Code section 11377. If, within 30 days of the filing of the remittitur the district attorney elects not to retry the charge, then the court shall resentence defendant and enter a new judgment.
WE CONCUR: Premo, Acting P.J., Elia, J.