Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA303308, Michael M. Johnson, Judge. Affirmed.
Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Jayson Johnson appeals from the judgment entered after a jury convicted him of one count of attempted second degree robbery. (Pen. Code, §§ 664 & 211.) Defendant waived his right to a jury trial on the allegation that he had served three prior prison terms pursuant to section 667.5, subdivision (b) and admitted that he suffered two prior convictions for petty theft with a prior conviction pursuant to section 666 and one for grand theft pursuant to section 487, subdivision (c). The trial court sentenced defendant to a total of five years in state prison, which included a two-year term for the attempted robbery conviction and three consecutive one-year terms for the prior prison terms. On appeal, defendant contends that the evidence was insufficient to prove that he had served three prior prison terms as a result of three prior felony convictions.
Defendant advised the trial court that his name is spelled “Jayson” rather than “Jason.” The trial court ordered the information amended by interlineation to correct the spelling.
All further statutory references are to the Penal Code unless otherwise indicated.
We affirm.
DISCUSSION
The evidence was sufficient to prove defendant had served three prior prison terms as a result of three prior felony convictions
Defendant contends that the evidence was insufficient to prove that he had served three prior prison terms as a result of the three prior felony convictions because he did not admit, and the People did not present any evidence, that he had served a prison term as a result of any one of the three convictions. We disagree.
Pursuant to section 667.5, subdivision (b): “Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefore, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.” Thus, imposition of a sentence enhancement under section 667.5 requires proof that the defendant: “(1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction.” (People v. Tenner (1993) 6 Cal.4th 559, 563.)
In considering whether sufficient evidence supports the trial court’s finding on the section 667.5, subdivision (b) enhancements, the reviewing court must review the record in the light most favorable to the trial court’s finding and determine whether a reasonable trier of fact could have found the enhancement allegations true beyond a reasonable doubt. (People v. Elmore (1990) 225 Cal.App.3d 953, 959–960 (Elmore).) The record must affirmatively show that the defendant’s admission that he suffered a prior conviction is voluntary and intelligent under the totality of the circumstances. (People v. Mosby (2004) 33 Cal.4th 353, 360.)
In People v. Franco (1970) 4 Cal.App.3d 535 (Franco), the defendant pled not guilty to the offense of petty theft and denied two prior convictions of petty theft. Before the jury was impaneled, the defendant admitted one of the prior convictions in chambers. The trial court read the allegations of the information including the charge that the defendant was previously convicted of petty theft and served a term for that crime. (Franco, supra, at p. 539.) The defendant admitted the prior offense upon questioning by the trial court but was not asked separately whether he had served a prison term in connection with the crime. The appellate court cited People v. Jackson (1950) 36 Cal.2d 281, 287 for the proposition that “[w]here an information charges the accused with a former conviction, and with having served a term of imprisonment therefor, and upon arraignment and the reading of the information to him he admits, without reservation, that he has suffered such conviction, it must be assumed that he knowingly admitted that he served the sentence as alleged in the information. To determine otherwise would be quibbling with the facts.” (Franco, supra, 4 Cal.App.3d at p. 540.) Thus, the appellate court held that the defendant’s admission of the prior conviction included an admission that he had served a term as alleged in the information even though he was not asked separately whether he had served such a term. (Ibid.)
In Elmore, supra, 225 Cal.App.3d at page 957, the appellate court held that the trial court may consider the defendant’s trial testimony in determining whether the allegations of serving a prison term are true. The Elmore court also held that a trial court is allowed to make reasonable inferences from the facts presented in determining whether the defendant served and completed a term of imprisonment. (Id. at p. 960.)
Here, the record shows that defendant was advised that the information charged him with the three prior convictions. Defendant stated that he understood the prior convictions alleged against him, understood that he had the right to a jury trial, and admitted suffering the three prior convictions. The trial court did not question him separately about whether he served a prison term for those prior convictions.
However, our examination of the record convinces us that defendant knew and understood the section 667.5, subdivision (b) enhancements alleged against him, and that his admission of the three felony convictions contained in the information was a voluntary and intelligent admission to the prison prior enhancements. The information specifically charged defendant with serving a term for each of his prior convictions. The information alleged that defendant had been convicted of three prior felonies: petty theft with a prior conviction pursuant to section 666 on June 29, 2004, petty theft with a prior conviction pursuant to section 666 on June 5, 2003, and grand theft pursuant to section 487, subdivision (c) on July 11, 2001. The information further alleged “that a term was served as described in Penal Code section 667.5 for said offense(s), and that the defendant did not remain free of prison custody for, and did commit an offense resulting in a felony conviction during, a period of five years subsequent to the conclusion of said term.”
After requesting bifurcation of the allegations of the three one-year prison priors, and before the jury returned with the verdict, defendant waived his right to a jury trial on the prior convictions. The trial court then advised defendant that he was waiving his right to a jury trial on the prior prison sentences as well as the prior felony convictions, stating: “All right. [¶] Mr. Johnson, there are allegations that you had three prior felony convictions which resulted in a term of prison, and that fewer than [f]ive years separated each of those prison terms under the meaning of Penal Code [section 667.5, subd. (b)]. [¶] The—you are entitled to a trial on those issues, just like the trial we completed. You would be presumed innocent and the People must prove each of those allegations under the statute beyond a reasonable doubt. [¶] In the trial, I would make a determination as to whether you were the person who was convicted in each of those cases. You are entitled to a jury trial on the question of whether the paperwork establishes the convictions and the prison sentences as well as the other requirements of the statute.” (Italics added.) Defendant stated that he understood everything the court explained and agreed to waive jury.
Further, at a pretrial hearing, defendant made a motion to proceed in pro. per. The trial court advised him that the three one-year priors alleged in the information would add three years to his sentence if he was convicted. Accordingly, defendant was advised as to the consequences of admitting that he had served separate prison terms for each felony. And, during the course of trial, defendant admitted during his testimony that he had been convicted of four felonies and had been to state prison. Thus, even though defendant was not separately asked whether he admitted having served a prior prison term when he admitted the prior convictions as in Franco, supra, 4 Cal.App.3d at page 540, we conclude that defendant was well aware of the elements of section 667.5, subdivision (b), before he admitted the prior convictions.
Defendant’s motion to proceed in pro. per. was granted, as well as his subsequent request for counsel and later request for private counsel.
Despite defendant’s contention on appeal that the record does not indicate any admission or denial of his enhancements alleged in the information, and that the advisement given by the trial court during the bifurcation discussion was remote in time, we conclude that under the totality of the circumstances, defendant was fully informed of the nature of the charges he was admitting.
We conclude that the evidence was sufficient to prove defendant had served three prior prison terms as a result of three prior felony convictions.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.