Opinion
E064759
03-06-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID GUERRERO, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1203580) OPINION APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant David Guerrero was an inmate at the Southwest Detention Center when he attacked another inmate and slit his throat. Defendant was convicted of attempted, willful, deliberate and premediated murder. In addition, he admitted he suffered two prior serious and violent felony convictions.
Defendant claims on appeal that he was not fully advised of his federal constitutional rights to a jury trial, to remain silent, and to confront witnesses, before admitting he suffered the prior convictions used to enhance his sentence. He insists this case should be remanded for a trial on the prior convictions. Under the totality of the circumstances, defendant voluntarily and intelligently waived his rights.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Defendant was charged in an information filed by the Riverside County District Attorney's Office with one count of attempted willful, deliberate and premediated attempted murder (Pen. Code, §§ 664, 187). He was additionally charged with having personally used a deadly and dangerous weapon during the commission of the offense (§ 12022, subd. (b)(1)). Defendant was also charged with having suffered two prior serious and violent felony convictions (§§ 667, subds. (a), (c) & (e)(2)(A), 11701.12, subd. (c)(2)(A)) and having served two prior prison terms (§ 667.5, subd. (b)) for the same convictions.
All further statutory references are to the Penal Code unless otherwise indicated.
On March 12, 2014, defendant waived his right to a jury trial on the prior convictions and they were bifurcated from the substantive charges. A mistrial was declared on March 21, 2014, because the jury could not reach a verdict. On October 24, 2014, a second trial commenced. Defendant waived his right to a jury trial on the prior convictions and the priors were again bifurcated on the substantive charges. On November 6, 2014, defendant was found guilty of willful, deliberate and premediated attempted murder and the jury found true the allegation that he personally used a deadly and dangerous weapon.
On January 15, 2015, defendant admitted he had suffered the prior convictions. Defendant's motion to strike his prior convictions was denied. Defendant was sentenced to 25 years to life for the first degree murder and an additional determinative sentence of 11 years for the prior convictions and use of a deadly and dangerous weapon. His sentence was to be served in state prison.
B. FACTUAL HISTORY
The facts of the substantive crimes are not relevant to the issues raised on appeal and only need to be briefly addressed.
The victim was an inmate at the Southwest Detention Center on March 30, 2012. He was a member of the Elsinore Vatos Locos gang. In 2010, he witnessed the shooting of his friend by a member of a rival gang, the Elsinore Young Classics. He spoke with police and identified the shooter as a member of the Elsinore Young Classics.
On March 30, 2012, the victim was in custody for another matter. He was released into the dayroom at the prison with several other inmates. Another inmate asked him to play chess. While they were playing, the victim observed defendant walk behind him. Someone then pulled his head back and slashed his throat with some type of knife. Other inmates started pushing and beating him. He saw defendant quickly walk away. The inmate who was playing chess with the victim identified defendant as the person who slit the victim's throat. The victim believed he was targeted due to his having identified a gang member in the 2010 shooting.
DISCUSSION
Defendant claims he was not adequately advised of his federal constitutional rights to a trial, to confront witnesses, and to remain silent, before admitting the prior convictions. While we agree defendant was not advised of his rights to remain silent and confront witnesses, under the totality of circumstances defendant's admissions to the prior convictions were voluntarily and intelligently made.
A. ADDITIONAL FACTUAL BACKGROUND
Prior to defendant's first trial, the trial court noted that it assumed defendant wanted to bifurcate the trial on the prior convictions. In regards to waiving a jury trial on the prior convictions, defendant's counsel advised him, "[Defendant], you have the option of having either the jury or the judge determine the veracity of your prior felony convictions. You have the right to have the jury do that. It's my recommendation that instead of having a jury do that, which then the jury will have to know about your prior specifically, you would have the judge do that. And it is only done after and if you are convicted of this charge. Do you agree to that?" Defendant responded, "I agree." The trial court stated, "The Court will find a knowing[], voluntar[y], and intelligent waiver as to his right to a jury trial on the priors. And he is requesting the Court trial. This is only on the condition he's convicted." The prior convictions were bifurcated from the substantive charges.
At his first trial, defendant chose to testify. He admitted he had suffered prior convictions of shooting at an inhabited dwelling and participating in a street gang. The jury could not reach a verdict.
Just prior to the second trial, the parties met prior to choosing the jury. The trial court noted that the prior convictions would be bifurcated. The trial court noted, "It's yet to be determined whether it's going to be bifurcated to the Court." The trial court asked defense counsel about whether a jury trial was being requested on the prior convictions and defendant's counsel responded that they would be tried by the court and not a jury. The deputy district attorney was asked by the trial court if he wanted a waiver of jury trial. He responded "No, that's fine." After the jury reached its verdict, the trial court asked if the prior convictions were going to be tried to the court and both parties responded affirmatively.
On January 15, 2015, the trial court stated, "We are here for the purpose of proceeding to the bifurcated matters. And it's my understanding, however, that as to the matters that were to be tried to the Court today, that there would be admissions, is that correct?" Defendant's counsel responded, "That's correct, Your Honor. [Defendant is] prepared to admit that he is the person that suffered those convictions, reserving his right to challenge applicability of these strikes." The trial court then stated that defendant had been charged in the information with "a first prior offense," a "first serious prior offense," and "a first special prior offense as pled," which all related to the shooting at an inhabited dwelling on June 17, 2003. The trial court stated, "And [defendant], by your comments, would be in fact admitting that he suffers from these prior offenses and serious prior offenses; is that right?" Defendant's counsel responded, "That is correct, Your Honor."
The trial court then stated defendant was also charged in the information with "the second prior offense, second serious prior offense, as well as the second special prior offense," that all related to a conviction suffered for active participation in a criminal street gang. The trial court stated, "And to those prior offenses as indicated by the Court's comments, [defendant] would be admitting?" Defendant's counsel responded, "That's correct." The trial court asked if it was necessary for it to comment on the factual basis and both parties indicated no.
At the next hearing, at which defendant's motion for new trial was heard and denied, at the end of the hearing, the trial court noted, "It's my understanding the defendant, by review of the record, has admitted to the prior strikes, and so thus this now is a Three Strikes case with a life sentence potentially to be imposed." There was no objection.
At a hearing on October 23, 2015, defendant chose to represent himself. The trial court and defendant had the following discussion after he chose to represent himself:
"THE COURT: [Defendant], there's a question I have, in that given we've had several hearings post-verdict, as to whether or not you had admitted to the priors which were bifurcated in this case. [¶] Are you aware of what I'm talking about, sir?
[Defendant]: Yes, sir.
THE COURT: And would you agree with me that you admitted to the priors as set forth in the Felony Information?
[Defendant]: I agree that I admit that I suffered the conviction. But on the first conviction
THE COURT]: Which was the 2003 matter?
[Defendant]: Which was the, yes, in 2003, that conviction was suffered, but it does not qualify as a serious felony prior.
THE COURT: All right. We've had so many hearings, my memory has become rather sketchy in regard to what was apparently the subject matter of a hearing on January 15th, 2015. [¶] So insofar as being in prison on those occasions that are set forth in the Information, you've admitted to that previously; correct, sir?
[Defendant]: Yes, sir.
THE COURT: And what you dispute is whether or not this qualifies, one of these priors qualifies for a strike, which would be the basis for the Three Strikes; correct?
[Defendant]: Well, actually I don't believe either one of them would qualify as a strike. The second one is a 186.22, which does not qualify either because of a constitutional basis due to a Joe Rodriguez in 2012, that appellate case."
Defendant informed the court of the "Rodriguez" case, which showed that his section 186.22 prior did not qualify as a strike. Defendant asked the trial court to strike the conviction. He additionally argued that his violation of section 246 did not qualify as a strike because it was not proven he caused an injury. Defendant then advised the trial court he wanted to file a Romero motion. The People responded that defendant's strikes qualified as serious strikes.
People v. Superior Court (Romero) 13 Cal.4th 497 (Romero). --------
The People also submitted a section 969 subdivision (b) packet for defendant's conviction of shooting at an inhabited dwelling, which included information that he was convicted of a charge of personal discharge of a weapon. Defendant continued to object arguing that it had to be proven he caused injury.
Defendant sought to subpoena the entire record from his conviction of shooting at an inhabited dwelling. The trial court inquired, "You're contending you're not guilty?" Defendant responded, "Correct." The trial court informed defendant that it could not consider that he was not guilty of the prior conviction. The trial court could not reconsider his guilt, but could consider it in addressing the Romero motion.
The trial court asked the prosecutor if sentencing should proceed. She responded, "Yes, your honor. And I think that to make it clean, first we need to determine if in fact we do have prior admissions to these convictions. I believe the Court said we do. [¶] Then the decision is left to the Court to determine whether or not they are strikes, serious or violent felonies. It's not up for argument. The Court determines that based on the law. [¶] And from there, if the Court wants to entertain [defendant]'s oral Romero motion, we can deal with the facts of his prior cases, his record, and whether or not the Court can strike them for purposes of sentencing."
The trial court then stated, "Let me get this from the minutes to assuage any concern that anybody would have—take away any concern that anybody might have. [¶] What led to this hearing being called in this order, in this fashion, was my review of this file, which again memory becomes sketchy over a year, so I went back and reviewed the court's minutes. And in the court's minutes it says this: [¶] 'Admits priors 1 and 2. Defendant's admission to priors is subject to verification of strikes.' Which is entirely consistent with what I'm hearing here. So that's the 969(b) packet. [¶] And the position as taken by the People is that you've suffered from two strikes prior to this. And the position of the People is that insofar as your Romero motion, that's separate and apart from the finding on the priors, okay. [¶] So if the Court is incorrect on the priors, okay, either reserved or preserved for further litigation by way of a writ, or on appeal; correct?"
The prosecutor responded, "Yes."
The following exchanged then occurred:
"[Prosecutor]: And I did just pass up to the Court a second 969(b) packet. That one has [defendant]'s prior 186.22 conviction and prison commitment. Just so the record's abundantly clear. And both of those are on file.
THE COURT: Which becomes absolutely moot and irrelevant in light of the fact that there were prior admissions obtained.
[Defendant]: Your Honor, for the record, as far as the prior admissions, I mean, on my retrial motion, one of the bases for it is insufficient counsel. And up until the fact that I started doing this research on it, I was not aware that just because I suffered it necessarily that it had qualified. The argument that I have on a 246, just barely through research, I realized that if I was not the one that caused the injury, it does not qualify as a strike. [¶] For the Court to say that I admitted to it, yes, I suffered the conviction, but for all purposes of the court, it does not qualify as a conviction. So to go ahead with the sentencing without accepting the arguments, would be in violation of constitutional rights, Your Honor."
The trial court reviewed the records of the shooting at an inhabited dwelling case. It found the prior convictions qualified. The trial court further stated, "But you have previously pled or admitted to the two strikes. That's what the court's record reflects. And I think that's what your comments would suggest, is that you reserve your right to argue that these in fact are strikes at all."
The trial court reviewed the Romero motion filed by defendant and denied it.
B. ANALYSIS
1. ADMISSIONS VOLUNTARILY MADE
"[B]efore accepting a criminal defendant's admission of 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." (People v. Mosby (2004) 33 Cal.4th 353, 356; see also Boykin v. Alabama (1969) 395 U.S. 238, 243; In re Tahl (1969) 1 Cal.3d 122, 132.) A trial court's failure to provide the defendant with the requisite admonitions does not require automatic reversal regardless of prejudice. (Mosby, at p. 361.)
In People v. Mosby, supra, 33 Cal.4th 353, the defendant was only advised that he had a right to a jury trial on the prior convictions, but the trial court did not advise the defendant of his rights to remain silent and to confront witnesses. (Id. at pp. 357-358.) The Supreme Court first rejected that the failure to advise defendant of his Boykin-Tahl rights required automatic reversal. The court concluded the proper test is "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.) The court found that despite the lack of advisement to the defendant of his right to remain silent and cross examine witnesses, he had just been involved in a jury trial during which he exercised his right not to testify and had witnessed his counsel cross examine witnesses. The court concluded, "he would have understood that at a trial he had the right of confrontation." (Id. at p. 364) The court also looked to the defendant's prior experience with the criminal justice system, including a prior plea of guilty, in deciding that the totality of the circumstances established that he voluntarily and intelligently admitted the prior convictions. (Id. at p. 365.)
Recently, the Supreme Court reaffirmed that the failure to "properly advise a defendant of his or her trial rights is not reversible 'if the record affirmatively shows that [the admission] is voluntary and intelligent under the totality of the circumstances.'" (People v. Cross (2016) 61 Cal.4th 164, 179.)
Here, under the totality of the circumstances, defendant understood his rights. Defendant was advised that he had a right to a trial on the prior convictions. Prior to defendant's first trial, his counsel and the trial court fully advised defendant he was entitled to a jury or court trial on the prior convictions. The court found that defendant had "knowingly, voluntarily" and intelligently waived his right to a jury trial on the priors. Defendant's second trial commenced only a few months later. Prior to the second trial, defendant's counsel was asked about the prior convictions and advised the trial court defendant agreed to be tried by the court and not a jury.
As in Mosby, defendant here was well aware that he had a right to a jury trial on the prior convictions. The only advisements he did not receive were his rights to remain silent and to cross-examine witnesses. Defendant had just undergone two trials. During the first trial, defendant had testified and admitted his prior convictions. Defendant chose to not testify at the second trial. Further, defendant sat through two trials where his counsel cross-examined witnesses. The totality of the circumstances establish defendant was well aware of his rights during trial not to testify and of the ability to cross-examine witnesses.
Moreover, defendant had a history in the criminal justice system. He had pleaded guilty to the prior conviction for the gang activity. The minute order from sentencing indicates the trial court found he had waived his Boykin/Tahl rights. Defendant, as a recidivist, had previously been made aware of his rights.
Finally, defendant's comments that he did not believe his prior convictions qualified as strikes does not show his admissions were made involuntarily. Defendant acknowledged several times that he had admitted he suffered the prior convictions. The fact he argued after admitting the strikes that they did not qualify under the law, does not mean his admission was not voluntary. Under the totality of the circumstances, defendant voluntarily and intelligently admitted his prior convictions.
DISPOSITION
We affirm the judgment in its entirety.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: HOLLENHORST
Acting. P. J. SLOUGH
J.