Opinion
E068491
07-23-2018
THE PEOPLE, Plaintiff and Respondent, v. HERMANDO ANTONIO VEGA HERNANDEZ, Defendant and Appellant.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meagan J. Beale and A. Natasha Cortina, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1603448) OPINION APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed with directions. William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meagan J. Beale and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On January 31, 2017, an information charged defendant and appellant Hermando Antonio Vega Hernandez with possessing a concealed dirk or dagger upon his person under Penal Code section 21310 (count 1). The information also alleged that defendant had served six separate prison terms under section 667.5, subdivision (b), and that defendant had suffered three prior strike convictions under sections 667, subdivisions (c) and (e)(2)(A), and 1170.12, subdivision (c)(2).
All statutory references are to the Penal Code unless otherwise specified.
On April 25, 2017, a jury found defendant guilty of count 1, felony possession of a dirk or dagger under section 21310. In a bifurcated proceeding, defendant admitted two of the three alleged strike priors and four of the six alleged prison priors. The court found the third strike allegation to be true. The court imposed the upper term of three years on count 1, doubled due to the strike convictions, and one-year terms for two of the prison priors for a total of eight years in prison. The court struck the one-year sentences for the two remaining prison priors.
The abstract of judgment and minute order do not accurately reflect the oral pronouncement. They both indicate that the court stayed the one-year terms imposed on the two remaining prison priors. Because the trial court's oral pronouncement of a sentence prevails over the court minutes and abstract of judgment (People v. Mesa (1975) 14 Cal.3d 466, 471), we hereby correct the abstract and minute order to reflect the oral pronouncement that the one-year sentence for the two remaining prison priors are stricken, and not stayed. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts may order correction of clerical errors in abstract of judgment].) --------
On June 5, 2017, defendant filed a timely notice of appeal.
B. FACTUAL HISTORY
On July 15, 2016, Elizabet Gallardo called 911 after seeing defendant, who appeared to be homeless, with weapons and getting into a fight with a person driving a truck. Defendant tried to hit the man in the truck with a bat and pulled out knives, "and a lot of different stuff" from his cart.
The police responded and located defendant. After failing to comply with repeated instructions to put his hands up and not reach for his knives, the officers managed to detain and arrest defendant. Police recovered three knives and a hammer from defendant's person.
At trial, defendant testified that he had been laying in the shade thinking about planting some apple seeds by the riverbed when a man in a truck pulled over, and without provocation, came toward defendant with a sledge hammer. Defendant armed himself in self-defense.
Defendant admitted that he previously pled guilty to a burglary in 1995, to resisting arrest in 2007, to assault with a deadly weapon in 2007, to possessing a weapon in prison in 2011, and to assault with a deadly weapon in 2012.
DISCUSSION
A. DEFENDANT KNOWINGLY AND VOLUNTARILY ADMITTED THE TRUTH OF HIS PRIORS
Defendant contends that his admissions to his prison priors and strike allegations were neither knowing nor voluntary because the trial court failed to advise him of all of his constitutional rights. Although the trial court erred in some respects, defendant's admissions are still valid under the totality of the circumstances.
1. ADDITIONAL FACTS
During the motions in limine on April 20, 2017, defense counsel asked to bifurcate the trial on defendant's prison priors and strike allegations from the jury trial. The trial court obtained defendant's waiver of his right to a jury trial on the allegations and enhancements. The following colloquy occurred:
"The Court: All right. Let me make sure that we have an understanding here. [¶] [defendant], your lawyer has asked to bifurcate your priors, which consist of, I think prison priors; am I correct?
"[Defense counsel]: And strike priors, your Honor.
"The Court: And strike priors. Yes. Meaning you have the right to have that matter heard by this jury. And often, it does not insure to your benefit to have a jury hear about your prior criminal history, including prison priors. [¶] And there's a request by defense counsel . . . to bifurcate, that is, to separate the charges of the dirk-and-dagger concealment as against you from your prison priors and your strike priors. [¶] Did you understand all of that sir?
"The Defendant: Yes, I do, your Honor.
"The Court: Okay. In order for me to grant the motion to bifurcate, I'd like to effectively get on the record here that you're waiving a jury trial. [¶] Do you wish try the bifurcated matter to the jury or to the Court?
"The Defendant: To the jury, your Honor.
"[Defense counsel]: May I just have a moment to explain it, your Honor?
"The Court: You may. [¶] . . . [¶]
"[Defense counsel]: We're ready, your Honor.
"The Court: Okay. And I'm just trying to be very careful for the record here. There was a point in time, sir, that you were self-represented. Now you have counsel. And that's extremely helpful to the Court and to you. [¶] But I have granted the motion to bifurcate, meaning we're going to try the other issues before we get to the matters that are bifurcated, and they're two separate proceedings. [¶] Do you understand that?
"The Defendant: Yes, sir.
"The Court: All right. Now, the next question is this: Do you bifurcate those matters? That is, will you try the bifurcated matters to me? And in so doing, you must waive your right to a jury trial. Do you waive your right to a jury trial?
"The Defendant: Just for the prison priors.
"The Court: Okay. And just for the bifurcated matters, including the strike priors and the prison priors; yes? Yes, sir?
"The Defendant: Yes. Yes, sir.
"The Court: This is after full consultation with [defense counsel] that you're doing this; correct? That you're giving us this waiver? Yes?
"The Defendant: Yes."
After defendant's trial on the charges, during which defendant admitted to pleading guilty to each of the alleged priors, the trial court proceeded to the trial on defendant's prison priors and strike allegations. The prosecutor advised the court of its intention to dismiss one of defendant's six alleged priors, and the court dismissed the prior. Defense counsel advised the court that defendant would like to admit the strike allegations and prison priors "with the caveat" that he would still like to argue that one of the five prison priors was invalid. The court agreed, and the following colloquy occurred:
"The Court: It appears there are four prison priors that you would be admitting to. And they would be identified as a prison prior dated 7/17/12, another dated 5/23/2007, and another dated 7/19, 2002, and a fourth dated 10/20/1995. [¶] Sir, did you, in fact, suffer from these prison priors? 'Yes' or "no,' Sir?
"Defendant: Yes.
"The Court: All right. Now I understand and I . . .
"Defendant: But, your Honor, from San Bernardino one, I got a second.
"The Court: I don't think I mentioned that one at all. I purposely avoided mentioning 10/2/2011. That's what we're talking about; is that correct? Is that the one that's
"[Defense counsel]: The question, yes.
"The Court: in issue?"
Thereafter, the court and defense counsel resolved the issue of the invalid prior, with the prosecutor agreeing that it was invalid. After indicating its intention to impose nine years, based in part on defendant's priors, the court asked defendant again about his intentions to admit the prison priors, "With that in mind, again, the think the question was posed to you, sir, would you be admitting to the prison priors just mentioned by the Court? Defense counsel "conferred with the defendant off the record" and then answered, "yes."
After relisting the precise prison priors that defendant would be admitting, the court asked, "Is it true, sir, that as to the four I've just described, that you, in fact, suffered from those prison priors, 'yes' or 'no'?" Defendant responded, "yes."
The court then turned to defendant's strike priors and asked defendant whether he admitted those allegations as well. Defendant promptly responded, "yes" to two of the strike priors but not to the third strike prior. Instead, defendant and defense counsel again conferred off the record. When they returned, defendant explained that he could not remember the third strike. The court expressed understanding because of defendant's "ample" experience with the law and suggested that defendant take the time to see whether reviewing some documentation regarding defendant's convictions would refresh his memory. After defendant took a moment to confer with his counsel, his counsel advised the court that defendant would submit on the documents, which include his 969b packet for an assault with a deadly weapon in 2017. The court reviewed the certified record and took judicial notice of the fact that defendant's 2007 assault with a deadly weapon conviction was true and qualified as a strike.
After further discussion, defense counsel asked the court, if it was not inclined to select the low term, then to impose only eight years based on the midterm. Over the People's objection and request for nine years, the trial court sentenced defendant to eight years in state prison based on the upper term of three years, doubled pursuant to the strikes, and one year each for two of the prison priors.
2. ANALYSIS
As defendant contended, the trial court erred in taking defendant's admissions to his priors and two of his strikes. A court must "exercise a comparable solicitude" toward the protection of the defendant's constitutional rights as it employs in accepting in any guilty plea. (In re Yurko (1974) 10 Cal.3d 857, 863.) The court must "inform the defendant of three constitutional rights—the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers—and solicit a personal waiver of each." (People v. Cross (2015) 61 Cal.4th 164, 170 (Cross).)
In this case, as provided in detail ante, although the trial court expressly advised defendant of his right to a jury trial and obtained his wavier, the court failed to advise defendant of his privilege against compulsory self-incrimination and the right of confrontation. The error, however, is not reversible per se. "Instead, the test for reversal is whether 'the record affirmatively shows that the [admission] is voluntary and intelligent under the totality of the circumstances.' " (Cross, supra, 61 Cal.4th at p. 171, quoting People v. Howard (1992) 1 Cal.4th 1132, 1175.) In applying the totality of the circumstances test, "a reviewing court must 'review[] the whole record, instead of just the record of the plea colloquy.' " (Cross, at pp. 179-180, quoting People v. Mosby (2004) 33 Cal.4th 353, 361 (Mosby).) In that regard, a defendant's previous experience in the criminal justice system is relevant to his knowledge and sophistication concerning his legal rights. (Cross, at p. 180; Mosby, at p. 365.)
Here, the totality of the circumstances demonstrate a knowing and intelligent wavier of defendant's constitutional rights. Defendant appears to argue that the totality of the circumstances analysis cannot be applied in this case because "[a] trial court's failure to provide any advisement presents a 'silent record' and the error is arguably reversible per se." Defendant argues that the trial court "did not advise appellant of any of his constitutional rights and he did not establish that defense counsel had advised appellant of his rights." We disagree. As provided in detail ante, the trial court advised defendant of his right to a jury trial on his priors and obtained a waiver before defendant's trial on the substantive charge. During the colloquy, defendant showed his clear understanding as he made sure the trial court knew that he was not giving up his right to a jury trial on the dirk and dagger charge. Defendant contends that this waiver does not apply to this case because it was prior to the jury trial, and not at the sentencing hearing. Defendant, however, provides no legal authority to support his contention that giving such a waiver prior to the jury trial, and not immediately prior to the sentencing hearing, is invalid. Here, defendant clearly understood that he was giving up his right to a jury trial on his prior convictions and strike allegations. Defendant made certain that the court knew that that he was not giving up his right to a jury trial on his substantive charge.
Moreover, we recognize that defendant had just completed a jury trial on the substantive charge in which he observed his counsel confront and cross-examine witnesses. Therefore, he clearly knew that he had a right to confront and cross-examine witnesses prior to admitting his prior convictions and strikes. Additionally, defendant repeatedly conferred with his counsel during the process of his admissions. Furthermore, defendant declined to admit one of the strike priors that he did not remember. Instead of admitting to the strike, he submitted on the prosecutor's certified records of his criminal past. Also, although the record supports defendant's claims that he had some noted mental issues, the record shows that defendant ultimately understood what he was doing in court and what he was giving up.
Based on the foregoing, under the totality of the circumstances, we find that the record affirmatively shows defendant's admission was knowing and intelligent.
DISPOSITION
The trial court is directed to amend the abstract of judgment and minute order to accurately reflect the trial court's oral pronouncement that the one-year sentences for the two remaining prison priors were stricken, and not stayed. The trial court is further directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. SLOUGH
J.