Opinion
NOT TO BE PUBLISHED
Superior Court County No. 1183843 of Santa Barbara, James F. Rigali, Judge.
Christie Stanley, District Attorney and Gerald McC.Franklin, Senior Deputy District Attorney for Plaintiff and Appellant.
Office of the Public Defender, Gregory C. Paraskou, Public Defender and Michael Ganschow, Deputy Public Defender for Defendant and Respondent.
GILBERT, P.J.
The People appeal an order of the trial court striking a criminal street gang allegation regarding defendant's 1999 serious felony and strike conviction of possession of a proscribed weapon. (Pen. Code, §§ 1238, subd. (a)(1), 12020, subd. (a), 186.22, subd. (b).) We conclude that defendant's admission of the gang allegation was voluntary and intelligent, and reverse.
All further statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
On November 29, 2006, the People filed an information against Edgardo Guevara, alleging that he inflicted great bodily injury upon his spouse or cohabitant, falsely imprisoned her, and inflicted cruelty to a child under circumstances likely to produce great bodily injury. (§§ 273.5, subd. (a), 12022.7, subd. (e), 236, 273a.) The information also alleged that Guevara suffered two prior felony strike convictions in Riverside County: a 1992 conviction of robbery, and a 1999 conviction of possession of a proscribed weapon in aid of a criminal street gang. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) Among other things, the information alleged that the two felony convictions also supported a section 667, subdivision (a), five-year sentence enhancement.
On November 5, 2007, Guevara filed a motion to strike the criminal street gang allegation regarding the 1999 weapon possession conviction. He asserted that he did not receive express advice of nor did he waive his constitutional rights prior to admitting the gang allegation. (In re Tahl (1969) 1 Cal.3d 122.) Guevara reasoned that the 1999 conviction was not a serious felony for purposes of recidivist sentencing or sentence enhancement, absent the gang allegation. (§§ 667, subd. (d)(1), 1192.7, subd. (c)(28).)
To support his motion, Guevara presented the trial court with a copy of the written plea form that he initialed and executed on September 27, 1999; a copy of the transcript of the plea entry proceedings on that date; a copy of the computer-generated case record for that date; and his declaration that he had not been advised of nor had he waived his constitutional rights regarding the gang allegation.
Guevara had initialed and signed the two-page written plea form which had advised him of his constitutional rights and his waiver thereof by "enter[ing] a plea of guilty." The form also states that Guevara is "to enter a guilty plea to the following charges and/or enhancements: Count one 12020 P.C. . . . Admit 186.22(b)(1) P.C. (gang allegation)." The plea was expressly conditioned upon Guevara receiving a 44-month term of imprisonment. Guevara's attorney executed the written plea form, which affirmed that Guevara understood his constitutional rights and that his guilty plea would waive those rights.
During the plea colloquy, the trial court questioned Guevara whether he read the advisement of rights in the plea form and whether he discussed them with his attorney. Guevara replied affirmatively. The trial court found that Guevara knowingly and intelligently waived his constitutional rights regarding the plea. Guevara then pleaded guilty to possession of a sawed-off shotgun, and admitted that he possessed the weapon for the benefit of a criminal street gang. The trial court did not orally advise Guevara of nor did it solicit an express waiver of his constitutional rights regarding either the substantive charge or the gang allegation.
After receiving written and oral argument, the trial court granted Guevara's motion, and it struck the 1999 serious felony and strike conviction. (§§ 667, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
The People appeal and contend that the trial court erred as a matter of law.
DISCUSSION
The People argue that the trial court erred by concluding that the record of Guevara's 1999 felony conviction did not establish a voluntary and intelligent waiver of his constitutional rights prior to his admission of the gang allegation. They assert that Guevara's admission was voluntary and intelligent "under the totality of the circumstances," given the written plea advisements and the inextricable relationship between the weapon possession charge and the gang enhancement. (People v. Mosby (2004) 33 Cal.4th 353, 360.)
Guevara responds that the record is silent regarding express advisement and waiver of his constitutional rights regarding the gang allegation. He asserts that the 1999 serious felony and strike conviction is constitutionally invalid.
Nearly 40 years ago, our Supreme Court held that an accused's constitutional rights to jury trial, confrontation, and against self-incrimination, "must be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his guilty plea." (In re Tahl, supra, 1 Cal.3d 122, 132.) The absence of express admonitions and waivers, however, does not require reversal regardless of prejudice. (People v. Mosby, supra, 33 Cal.4th 353, 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 [sentencing enhancement allegation] was intelligent and voluntary in light of the totality of circumstances." (Ibid.) This approach reviews the entire record—not only the plea colloquy—to determine whether defendant's admission was intelligent and voluntary, and given with an understanding of the constitutional rights waived.
Here in 1999, Guevara completed a written plea form acknowledging and waiving his constitutional rights regarding the "guilty plea to the following charges and/or enhancements. Count One 12020 P.C. admit [a 1992 felony conviction] admit 186.22 (b)(1) P.C. (gang allegation)." During the sentencing colloquy, Guevara stated that he read the advisement and waiver of rights, discussed it with his attorney, placed his initials on the plea form, and signed the form at the bottom of the first page.
Thus the record establishes that Guevara knew of his constitutional rights and voluntarily waived them by admitting the gang allegation. This is not a record where there were no admonitions or waivers whatsoever. We conclude that under the totality of circumstances, Guevara's admission was voluntary, intelligent, and constitutionally valid.
The order is reversed.
We concur: YEGAN, J., PERREN, J.