Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Nos. SCD217932, SCD212333, Jeffrey F. Fraser, Judge.
NARES, Acting P. J
In San Diego County Superior Court case No. SCD217932, a jury convicted Robert Lee Johnson (Johnson) of the following five offenses allegedly committed in the course of three drug-related incidents that occurred on December 3, 9, and 23, 2008: (1) possession for sale of cocaine base on December 3 (count 2: Health & Saf. Code, § 11351.5); (2) possession of a controlled substance (hydrocodone, also known as Vicodin) on December 3 (count 3: § 11350, subd. (a)); (3) sale of cocaine base on December 9 (count 4: § 11352, subd. (a)); (4) possession for sale of cocaine base on December 9 (count 5: § 11351.5); and (5) misdemeanor possession of drug paraphernalia on December 23 (count 6: § 11364).
All further dates are to calendar year 2008 unless otherwise specified.
All further statutory references are to the Health and Safety Code unless otherwise specified.
The jury found Johnson not guilty of selling a controlled substance (cocaine base) on December 3 (count 1: § 11352, subd. (a)).
As discussed more fully, post, Johnson admitted various prior conviction enhancement allegations outside the presence of the jury during its deliberations without first being advised of his constitutional rights to a trial to determine whether he had suffered the alleged prior convictions, to remain silent, and to confront adverse witnesses.
At the sentencing hearing, the court struck two prior drug sales convictions (§ 11370.2, subd. (a)) that Johnson had admitted. The court sentenced Johnson to the low term of three years for count 2 (§ 11351.5), the principal term; a concurrent middle term of two years for count 3 (§ 11350, subd. (a)); a concurrent low term of three years for count 4 (§ 11352, subd. (a)); and a concurrent low term of three years for count 5 (§ 11351.5), and 180 concurrent days for count 6 (§ 11364).
During the same hearing, the court also sentenced Johnson in another case, San Diego County Superior Court case No. SCD212333, to a concurrent two-year state prison term based on his March 21 plea of guilty to one count of possession of cocaine base (§ 11350, subd. (a)). The court thus sentenced Johnson in the two cases to a total prison term of three years.
Johnson appeals, contending (1) the court erred and violated his federal constitutional right to due process when it denied his motion under Penal Code section 1118.1 for a judgment of acquittal as to count 3 (possession of Vicodin on December 3 in violation of § 11350, subd. (a)) because the evidence is insufficient to establish the element of unlawful possession; (2) he did not knowingly and intelligently waive his trial rights with respect to any of the prior conviction allegations because the court never advised him of those rights, and thus his admissions of those allegations must be reversed and the matter remanded for trial on those allegations; and (3) under Penal Code section 654, the court should not have sentenced him on both count 4 (sale of cocaine base on December 9 in violation of § 11352, subd. (a)) and count 5 (possession for sale of cocaine base on December 9 in violation of § 11351.5) because both offenses "evolve[d] out of the same incident." The People state they have "no opposition to the judgment being modified to stay the concurrent term on [c]ount 5" under Penal Code section 654.
For reasons we shall explain, we modify the judgment to stay under Penal Code section 654 the three-year concurrent sentence imposed for count 5 (possession for sale of cocaine base on December 9 in violation of § 11351.5), and we set aside Johnson's admissions regarding the truth of the enhancement allegations. In all other respects we affirm the judgment.
The following factual background pertains to case No. SCD217932.
A. The People's Case
Counts 1-3 (December 3)
On December 3, Detective Simon Adams of the San Diego Police Department's "Team Eight" central narcotics squad was working in an undercover capacity in the area of 17th Street and Imperial and had arranged to meet Louis Williams to buy drugs at that location.
When they met, Detective Adams indicated he wanted to buy $40 worth of cocaine base. As they began walking down the street, Williams asked for the $40, and Detective Adams gave him the money. Williams then asked Detective Adams if he would "take care" of him, which meant share a piece of the purchased narcotics with him in exchange for facilitating the transaction.
As Detective Adams waited nearby next to some electrical boxes, Williams spoke with Johnson. Detective Adams testified he saw Williams and Johnson exchange something. Williams then walked directly back to Detective Adams. Telling Detective Adams they were "good, " Williams placed cocaine base in Detective Adams's hand. In return, Detective Adams broke off a small piece of the cocaine base and gave it to Williams. At trial the parties stipulated that forensic testing confirmed the narcotic Detective Adams obtained tested positive for cocaine base and weighed 0.29 grams.
Shortly thereafter, at 6:15 p.m., San Diego Police Department Officer Matthew Zdunich, who was also a member of the narcotics team, and who was in uniform in a police car around the corner at the time of the drug sale transaction, received a "bust" signal and about 10 minutes later was ordered to contact Johnson and identify him.
When Officer Zdunich got out of his patrol car and approached Johnson, Johnson stuck both his hands in a shopping cart that was covered with a folded shirt. Officer Zdunich instructed Johnson to remove his hands. Johnson complied, but he kept his hands clenched into fists and put his thumbs into the pockets of his pants, under his jacket.
Officer Zdunich told Johnson to show his hands. When Officer Zdunich asked him what was in his hands, Johnson opened his hand and a clear plastic baggie containing pills fell to the ground. When it hit the ground, Johnson said, "It's just Vicodin."
As Officer Zdunich picked up the baggie from the ground, he spotted a second clear plastic baggie containing a white substance about one foot away from the first one. Officer Zdunich arrested Johnson. At trial the parties stipulated that forensic testing revealed the pills in the first baggie were Vicodin, and the substance in the second baggie was cocaine base having a net weight of 0.92 grams.
Counts 4-5 (December 9)
On December 9, San Diego Police Department Officer Luke Johnson, a member of the Team Eight narcotics squad, was working undercover in the area of 17th Street and Imperial. He approached Carlitos Figueroa, whom he knew from previous drug transactions. Figueroa wanted Officer Johnson to give him $20 to purchase the drugs, but Officer Johnson declined to do so. Instead, they walked down 17th Street so Figueroa could find a dealer.
Officer Johnson sat down next to a chain-link fence, and Figueroa approached Johnson, who was again standing near the electrical boxes. Johnson and Figeuroa walked over to Officer Johnson, and Johnson said, "Just so you know, I'm not a dealer."
Johnson then spit a piece of cocaine base out of his mouth and gave it to Officer Johnson, who gave $20 to Johnson in return. At trial the parties stipulated that forensic testing confirmed the substance Johnson gave to Officer Johnson tested positive for cocaine base and weighed 0.21 grams.
Count 6 (December 23)
On December 23, San Diego Police Department Officer Alex Hesselgesser received a call instructing him to contact and arrest Johnson, who was walking along Commercial Street. When he arrested Johnson, Officer Hesselgesser found a two-inch cocaine base pipe in each of Johnson's shoes.
B. Defense Case
Johnson testified and denied giving any drugs to Williams during the December 3 transaction. He indicated that Williams already had drugs in his possession. Johnson also indicated that when the police car approached, people nearby began to leave the area and someone must have dropped the baggie that contained cocaine base. Johnson testified he saw the baggie on the ground and wanted to pick it up because he was thinking it probably contained cocaine, but he "didn't get a chance."
Johnson admitted he possessed the Vicodin on December 3, but testified he received a prescription for the Vicodin in the county jail, and he obtained the Vicodin from the Veterans Administration (VA) hospital.
Johnson denied selling drugs to Officer Johnson on December 9 and denied having a rock of cocaine base in his mouth on that date. He did admit he possessed the glass cocaine base pipes found in his shoes on December 23.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE (COUNT 3)
Johnson first contends the court erred and violated his federal constitutional right to due process when it denied his motion under Penal Code section 1118.1 for a judgment of acquittal as to count 3 (possession of Vicodin on December 3 in violation of § 11350, subd. (a)) because (he asserts) the evidence is insufficient to establish the element of unlawful possession. We reject this contention.
Penal Code section 1118.1 provides in pertinent part: "In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal."
Section 11350, subdivision (a) provides: "Except as otherwise provided in this division, every person who possesses (1) any controlled substance... specified in subdivision (b)... of Section 11055, ... unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison." (Italics added.) Hydrocodone (Vicodin) is a Schedule II controlled substance specified in subdivision (b)(1)(J) of section 11055.
A. Background
At the conclusion of the prosecution's case-in-chief, outside the presence of the jury, the defense moved for a judgment of acquittal on all charges under Penal Code section 1118.1, but provided argument only with respect to count 3. In support of the motion, defense counsel argued the prosecution had not presented any evidence "one way or the other on whether [Johnson] had a prescription" for the Vicodin.
Noting that the People had the burden under the applicable CALCRIM jury instruction of proving Johnson did not have a prescription for the Vicodin, the court inquired about how the People could show Johnson did not have such a prescription.
The court gave the jury the following modified version of CALCRIM No. 2304: "The defendant is charged in Count [3] with possessing Hydrocodone, a controlled substance. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant unlawfully possessed a controlled substance; [¶] 2. The defendant knew of its presence; [¶] 3. The defendant knew of the substance's nature or character as a controlled substance; [¶] 4. The controlled substance was Hydrocodone; [¶] AND [¶] 5. The controlled substance was in a usable amount. [¶]... [¶] The defendant is not guilty of possessing Hydrocodone if he had a valid, written prescription for that substance from a physician, dentist, podiatrist, naturopathic doctor, or veterinarian licensed to practice in California. The People have the burden of proving beyond a reasonable doubt that the defendant did not have a valid prescription. If the People have not met this burden, you must find the defendant not guilty of possessing a controlled substance." (Italics added.)
The prosecutor argued the People had met their burden because there was no evidence Johnson had a prescription for the Vicodin on December 3 when he was found in possession of 0.92 grams of cocaine base, and the evidence showing he "just did a drug deal" circumstantially showed Johnson did not have a prescription.
The court directed the parties' attention to the use note following CALCRIM No. 2304, which cites People v. Mower, supra, 28 Cal.4th 457 (Mower) for the proposition that the defendant need only raise a reasonable doubt about whether his possession of the drug was lawful because of a valid prescription.
It appears the court was referring to the bench note to CALCRIM No. 2304, which states in pertinent part: "The prescription defense is codified in Health and Safety Code sections 11350 and 11377. It is not available as a defense to possession of all controlled substances. The defendant need only raise a reasonable doubt about whether his or her possession of the drug was lawful because of a valid prescription. (See People v. Mower (2008) 28 Cal.4th 457, 479.)"
The court then asked defense counsel whether Johnson was going to testify. When defense counsel replied, "We think so at this point in time, " the court indicated that Johnson's motion for a judgment of acquittal as to count 3 under Penal Code section 1118.1 was "a bit premature." The prosecutor indicated he would not object to the court deferring its ruling on the motion until later in the trial proceeding.
Indicating that it felt "more comfortable" reading Mower, supra, 28 Cal.4th 457, before it ruled on the acquittal motion, the court stated it would defer its ruling. Defense counsel responded by stating, "Understood, Your Honor."
During his ensuing testimony, Johnson admitted he possessed the Vicodin pills and knew what they were. When defense counsel asked him where he obtained the Vicodin, Johnson stated:
"I got those from─I have a─okay. I hadn't been too long out of the county jail. I got a prescription for Vicodins in the county jail. I got those Vicodins from the VA hospital. Yeah. I fell off a freeway off-ramp, and I went through the pain clinic at the VA hospital. I saw specialist after specialist. They recommended that I be trialed on opiates for better pain control. At first they gave me Methadone, but it made me hallucinate. I thought people was on top of the roof. So they gave me Vicodin. So I been prescribed by the VA hospital and the San Diego County jail for Vicodin. Yeah." (Italics added.)
At the conclusion of the defense's case, again outside the presence of the jury, the court revisited Johnson's motion for acquittal as to count 3. The court noted that the evidence showed the Vicodin was not in a prescription pill bottle, Johnson did not have a prescription on him, and "he didn't volunteer a prescription" to the police. Noting it had read the Mower case, the court stated that Mower held the burden of demonstrating an exonerating fact may be imposed on the defendant when its existence is particularly within his personal knowledge and proof of its nonexistence would be difficult or inconvenient for the prosecution. The court then denied Johnson's motion for acquittal.
B. Standard of Review
In People v. Cole (2004) 33 Cal.4th 1158, 1212 (Cole), the California Supreme Court explained that, "[i]n reviewing a challenge to the sufficiency of the evidence under the due process clause of the Fourteenth Amendment to the United States Constitution and/or the due process clause of article I, section 15 of the California Constitution, we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence─that is, evidence that is reasonable, credible, and of solid value─from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt."
Cole also explained that, "[i]n ruling on a motion for judgment of acquittal pursuant to [Penal Code] section 1118.1, a trial court applies the same standard an appellate court applies in reviewing the sufficiency of the evidence to support a conviction, that is, ' "whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged." ' " (Cole, supra, 33 Cal.4th at pp. 1212-1213.)
On appeal, we independently review the trial court's ruling under Penal Code section 1118.1 that the evidence is sufficient to support a conviction. (Cole, supra, 33 Cal.4th at p. 1213.) "We also determine independently whether the evidence is sufficient under the federal and state constitutional due process clauses." (Ibid.)
C. Analysis
As previously noted, Johnson was charged in count 3 with felony possession of Vicodin, a controlled substance, in violation of section 11350, subdivision (a) (hereafter referred to as section 11350(a)). Under the express provisions of that subdivision, a valid written prescription for the controlled substance is a defense to a criminal prosecution for an alleged violation of that subdivision. (§ 11350(a) ["every person who possesses... any controlled substance..., unless upon the written prescription of a physician... licensed to practice in this state, shall be punished by imprisonment in the state prison" (italics added)], see fn. 6, ante.)
Section 11350(a), however, is silent on the question of which party─the People or the defendant─bears the burden of proof as to the facts underlying the statutory valid-written-prescription defense set forth therein. Johnson's claims that the evidence is insufficient to sustain his conviction of count 3 and that the court erred in denying his motion for acquittal as to that count, thus raise two related but distinct issues concerning the allocation and weight of the burden of proof under his section 11350(a) valid-written-prescription defense.
The first issue is which party─the People or Johnson─bears the burden of proof as to the facts underlying that defense. Evidence Code section 115 defines "burden of proof" as "the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court."
The second issue is what is required to be done by the party who bears the burden of proof as to the facts underlying the defense. Evidence Code section 115 provides that "[t]he burden of proof may require a party to raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt." (Italics added.)
The answer to the first question of whether it is the People or Johnson who bears the burden of proof as to the existence of the exonerating facts allegedly underlying Johnson's written prescription defense is provided by the so-called rule of convenience and necessity. Under the rule of convenience and necessity, "the 'burden of proving an exonerating fact may be imposed on the defendant if its existence is "peculiarly" within his or her personal knowledge and proof of its nonexistence by the prosecution would be difficult or inconvenient.' " (Mower, supra, 28 Cal.4th at p. 477.)
Here, application of the rule of convenience and necessity supports the conclusion that section 11350(a) should be interpreted to allocate to Johnson the burden of proving the existence of the exonerating facts allegedly underlying his valid-written-prescription defense under that statute. After the People rested their case-in-chief, Johnson asserted that defense for the first time by testifying that he "got a prescription for Vicodins in the county jail" and had "been prescribed by the VA hospital and the San Diego County jail for Vicodin." However, he did not identify who at the jail or the VA hospital prescribed the Vicodin, nor did he state when the Vicodin was prescribed.
Under these circumstances, the allocation to Johnson of the burden of proving the existence of the exonerating facts underlying his prescription defense, of which the prosecution had no prior notice at the time of trial, is appropriate under the rule of convenience and necessity because those claimed facts were peculiarly within Johnson's own personal knowledge, proof of their nonexistence by the prosecution would have been relatively difficult or inconvenient, if not impossible; and thus it is not unduly harsh or unfair to place on Johnson the burden of proving those exonerating facts. (See Mower, supra, 28 Cal.4th at p. 477.)
With respect to the second issue─what is required to be done by the party who bears the burden of proof as to the facts underlying a defense, whom we have determined to be the defendant─the answer is not provided by either the statute itself (§ 11350(a)), which does not expressly define the weight of the burden of proof or the rule of convenience and necessity. The California Supreme Court has resolved this issue. The general rule is that, when the defense relates to the elements of a charged offense, the defendant's burden is merely a burden of production, not a burden of persuasion, and the defendant must merely raise a reasonable doubt as to his guilt; the defendant need not establish the exonerating facts underlying his defense by a preponderance of the evidence. (Mower, supra, 28 Cal.4th at pp. 479-480; see also People v. Mentch (2008) 45 Cal.4th 274, 292-293 [conc. opn. of Chin, J.].)
Once the defendant has carried his or her burden to raise a reasonable doubt as to the existence of the exonerating facts underlying the defense, the burden shifts to the prosecution to prove beyond a doubt that the claimed exonerating facts do not exist. (See Mower, supra, 28 Cal.4th at p. 479; see also People v. Mentch, supra, 45 Cal.4th at pp. 292-293 [conc. opn. of Chin, J.].) If the trial court determines the evidence is sufficient to warrant instruction on the defense, the defendant has carried his or her burden of production, and the court should not instruct the jury that the defendant has the initial burden of production, but rather should instruct the jury that the prosecution has the burden to prove beyond a reasonable doubt that the claimed exonerating facts do not exist. (See Mentch, supra, 45 Cal.4th at p. 293.)
Here, the claimed exonerating fact of a valid written prescription for the Vicodin found in Johnson's possession relates to an element of the section 11350(a) offense charged in count 3 because the existence of such a prescription, if established, would negate the element of unlawful possession. Accordingly, Johnson had the initial burden of producing evidence showing he had a valid written prescription. Thus, the court's ruling on Johnson's motion for acquittal based on the possible existence of a valid prescription could properly be deferred until the conclusion of the defense case. After Johnson met his burden of production by testifying he obtained a prescription for Vicodin in the county jail and the VA hospital, the court properly instructed the jury under a modified version of CALCRIM No. 2304 that the prosecution had the burden of proving beyond a reasonable doubt that Johnson did not have a valid written prescription.
The version of CALCRIM No. 2304 that the court gave to the jury stated in part: "The defendant is not guilty of possessing [Vicodin] if he has a valid, written prescription for that substance from a physician... licensed to practice in California. The People have the burden of proving beyond a reasonable doubt the defendant did not have a valid prescription. If the People have not met this burden, you must find the defendant not guilty of possessing a controlled substance." (Italics added.)
After reviewing the entire trial record in the light most favorable to the judgment of conviction as to count 3, we conclude the prosecution met its burden of presenting substantial evidence from which any rational trier of fact could have found beyond a reasonable doubt that Johnson possessed the Vicodin without a valid written prescription. Officer Zdunich's testimony established that the Vicodin pills that fell from Johnson's hand were tightly wrapped up in a clear plastic baggie. They were not in a prescription medication bottle. Officer Zdunich's testimony also showed that the manner in which Johnson possessed the Vicodin exhibited consciousness of guilt. Specifically, Officer Zdunich testified that when he approached him, Johnson stuck both of his hands into a shopping cart. When the officer told him to take his hands out of the shopping cart, Johnson did so but kept his hands clenched up in fists and then stuck his thumbs into the pockets of his pants with his jacket hanging over the tops of his fists. When Officer Zdunich told Johnson to take his hands out of his pockets and show them to him, Johnson took them out but they were "balled up." Officer Zdunich stated he then asked Johnson, "What's in your hands?" When he opened his right hand and dropped the plastic baggie, Johnson said, "It's just Vicodin." Officer Zdunich also stated that when he reached down to pick up the baggie, he spotted a second baggie about a foot away that the parties stipulated contained cocaine base.
From the foregoing evidence any rational trier of fact could find that Johnson exhibited such consciousness of guilt because he possessed the Vicodin without a valid written prescription. We thus conclude the court did not err or violate Johnson's federal constitutional right to due process by denying his motion for judgment of acquittal as to count 3.
II. FAILURE TO GIVE BOYKIN/TAHL ADMONITIONS
Johnson also contends he did not knowingly and intelligently waive his trial rights with respect to any of the prior conviction allegations because the court never advised him of those rights, and thus his admissions of those allegations must be reversed and the matter remanded for trial on those allegations. We conclude Johnson's admissions must be set aside because (for reasons we shall explain, post) we cannot infer that in admitting the enhancement allegations Johnson knowingly and intelligently waived his right to a trial on those allegations as well as the associated rights to silence and confrontation of witnesses.
A. Background
1. Johnson's admission of prior conviction and other enhancement allegations
Before the prosecution rested its case, defense counsel informed the court outside the presence of the jury that he had conferred with Johnson, who had indicated that in the event the jury found him guilty, he would admit the prior conviction allegations. The court then engaged in the following colloquy with Johnson:
"The Court: Okay. So what I usually do in that situation, sir, is as soon as the trial's done I'll just take an admission, which means that -- if you're acquitted, it's meaningless. And if you're convicted, then we -- then it stands and, you know, we deal with that at a later date, in terms of sentencing. Make sense?
"[Johnson]: Is that good, though?
"The Court: What?
"[Johnson]: Is this─
"The Court: Acquittals are good for you. Yeah.
"[Johnson]: I mean, does─I forgot what you just said about me admitting my past.
"The Court: No. No. Well, basically the vast majority of times it goes by admission on priors, because there's really not much for a jury to do anymore. Most of the questions are decided by this court.
"[Johnson]: Right.
"The Court: And, so, if you get acquitted by the jury, then your admission to the priors are meaningless. If you get convicted, then, yes. They─they play a role in what can or cannot happen at sentencing. But in all likelihood, quite frankly, I'm going to have those options at sentencing anyway, depending on what the verdicts are. Am I making sense? Your lawyer's shaking his head, but I know he knows what I'm talking about. I don't know if you─
"[Johnson]: I wish I knew what you was talking about.
"The Court: Basically, you─by admitting, if you get convictions, then the priors can play a role in what happens at sentencing.
"[Johnson]: Right.
"The Court: If you get acquitted─
"[Johnson]: Then it don't matter anyway.
"The Court: ─Then it doesn't matter anyway. It depends on what the verdicts are that they really─
"[Johnson]: Right. Okay. Bear with me, Your Honor.
"The Court: Sure.
"[Johnson]: I'm kind of day late and a dollar short. I understand perfect what you're saying about the priors meaning something if I'm not or if I am acquitted. But whether or not I admit them today, what meaning does that have?
"The Court: Well, it doesn't mean anything until the verdicts come back. It just saves us time.
"[Johnson]: Okay.
"The Court: For example, if there's a trial on the priors, either with just the court or partially with the jury, the [District Attorney] just gets the documents. And they put in, usually, what they call a prison packet. Usually they do fingerprints and just -- they basically just show that these documents exist, showing these convictions, and you're the guy who has them. See what I'm saying?
"[Johnson]: Yeah. I hear that. I wonder where that leaves me. That's all I was trying to get at. I wasn't trying to make it long and drawn out.
"The Court: The bottom line for you is what does a jury do in terms of the underlying crime. I mean, that's really, really where it kind of plays out.
"[Johnson]: All right." (Italics added.)
Later, outside the presence of the jury after it retired for deliberations, Johnson admitted enhancement allegations that (1) he previously had been convicted twice for drug sales (§ 11370.2, subd. (a)); (2) one of those convictions qualified as a prison prior (Pen. Code, § 667.5, subd. (b)); and (3) he had suffered three prior convictions for possession of drugs in violation of section 11350, subdivision (a), within the meaning of Penal Code section 1203, subdivision (e)(4), and, thus, based on that number of such convictions he was ineligible for probation except in an unusual case where the interests of justice would best be served if he were granted probation.
The record shows that before Johnson made these admissions, the court did not advise him of any of his Boykin-Tahl rights (i.e., his constitutional rights to a trial to determine whether he had suffered the alleged prior convictions, to remain silent, and to confront adverse witnesses).
See Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122; see also People v. Mosby (2004) 33 Cal.4th 353, 360.
2. Sentencing (case No. SCD217932 )
During the subsequent sentencing hearing, the court struck the two prior drug sales convictions that Johnson admitted under section 11370.2, subdivision (a). Noting this was "a very mitigated case" and it was "an absolute waste of taxpayer money to send [Johnson] to prison, " but a grant of probation was statutorily barred, the court sentenced Johnson to the low term of three years for count 2 (§ 11351.5), the principal term; a concurrent middle term of two years for count 3 (§ 11350, subd. (a)); a concurrent low term of three years for count 4 (§ 11352, subd. (a)); a concurrent low term of three years for count 5 (§ 11351.5); and 180 days concurrent for count 6 (§ 11364).
The court imposed no sentencing enhancements, as reflected in the portion of the abstract of judgment reserved for listing "ENHANCEMENTS charged and found to be true FOR PRIOR CONVICTIONS OR PRISON TERMS, " which lists no enhancements; and it sentenced Johnson to a total prison term of three years.
B. Applicable Legal Principles
In In re Yurko (1974) 10 Cal.3d 857 (Yurko), the California Supreme Court held that before a trial court accepts a criminal defendant's admission of a prior conviction that forms the basis for a sentencing enhancement, it must advise the defendant of "the full penal effect of a finding of the truth of an allegation of prior convictions"; and it must also advise the defendant of, and obtain waivers of, his Boykin-Tahl rights (i.e., the right to a trial to determine the fact of the prior conviction, the right to remain silent, and the right to confront adverse witnesses). (Yurko, at pp. 863-865; see also People v. Mosby, supra, 33 Cal.4th at p. 360.) The trial court is thus required to determine─after the defendant is fully advised of the Boykin-Tahl rights subject to waiver and the full penal effect of a finding that an enhancement allegation is true─whether the defendant's admission of the truth of the allegation was "knowingly and voluntarily made." (Yurko, at p. 865.) Furthermore, "[t]he record must clearly reflect both the admonitions given the accused and the fact of the accused's waivers, if any." (Ibid.)
Our Supreme Court has explained that the requirements announced in Yurko apply to sentencing enhancements other than those imposed for a defendant's prior convictions. (People v. Adams (1993) 6 Cal.4th 570, 576 [stating that "an admission of an allegation made in the information or indictment for the purpose of increasing the punishment otherwise applicable to the offense" is subject to the admonition and waiver requirements recognized in Yurko].)
As a general rule, the absence in the record of proper Yurko admonitions, while error, will not always require reversal of a defendant's admissions. Rather, if the transcript does not reveal complete Yurko 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." (People v. Mosby, supra, 33 Cal.4th at p. 361.)
However, our Supreme Court has created an exception to the foregoing rule in so-called "silent-record" cases. In People v. Mosby, supra, 33 Cal.4th at page 361, the high court explained that "silent-record cases are those that show no express advisement or waiver of the Boykin-Tahl rights before a defendant's admission of a prior conviction." The Supreme Court held in Mosby that "[i]n 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, at p. 362, italics added.)
C. Analysis
Here, the People concede that the trial court did not provide Johnson with "any admonitions pertaining to his admission to the prior convictions on the record." We agree. A review of the entire record reveals the court accepted Johnson's admission of the truth of the enhancement allegations without first advising him of his Boykin-Tahl rights, including his right to a trial on those allegations, or of the full penal effect of a finding that the enhancement allegations were true, as required by Yurko, supra, 10 Cal.3d at pages 863-865. A review of the record also shows the court accepted Johnson's admissions without first obtaining his express waivers of his Boykin-Tahl rights.
We conclude this case qualifies as a silent-record case because the court accepted Johnson's admissions without first advising him on the record of his Boykin-Tahl rights, including his right to a trial on the prior conviction and other enhancement allegations, and before Johnson expressly waived his Boykin-Tahl rights. Accordingly, as a matter of law under the Supreme Court's Mosby silent-case rule (discussed, ante), we cannot infer that in admitting the enhancement allegations Johnson knowingly and intelligently waived his right to a trial on those allegations as well as the associated rights to silence and confrontation of witnesses. (People v. Mosby, supra, 33 Cal.4th at p. 362.)
The People contend that although the court did not provide Johnson with any of the requisite Boykin-Tahl/Yurko admonitions, any error was harmless because, under the totality of the circumstances, Johnson's admissions were "voluntary and intelligent." Specifically, the People cite portions of the record suggesting (among other things) that Johnson "had extensive experience in the criminal justice system, " the probation report shows he has "a criminal history dating back to 1983, " he "has admitted to prior conviction allegations in the past and was well familiar with his rights in this regard, " and his trial counsel "had discussed the matter with him and had indicated that [Johnson] did not wish to dispute the prior convictions."
The People's contention is unavailing because the "totality of the circumstances" harmless error test does not apply in this case. As already discussed, the Supreme Court explained in Mosby that if the record shows the trial court advised the defendant of his right to a trial on a prior conviction allegation and obtained his waiver of that right, but the record does not reveal complete Boykin-Tahl/Yurko advisements and waivers, a reviewing court may examine the entire record "to assess whether the defendant's admission of the prior conviction was intelligent and voluntary in light of the totality of circumstances." (People v. Mosby, supra, 33 Cal.4th at p. 361.) Here, however, it is undisputed that the record shows the trial court did not advise Johnson of his right to a trial on a prior conviction allegations and did not obtain his waiver of that right before it accepted his admissions.
We note the People's additional claim that "any error was harmless because the court struck the prior convictions allegations and only sentenced [Johnson] to the middle [sic] term on Count [2 (possession for sale of cocaine base on December 3 in violation of § 11351.5)] and ran the rest of the terms concurrent." In his reply brief, Johnson acknowledges that the People's claim is "substantively true, " but maintains that the striking of those allegations was the result of judicial error that should be corrected on appeal both for the sake of accuracy and to eliminate the potential that the true finding on the allegations, and the order striking the allegations, might be misconstrued in the future to Johnson's detriment.
While we agree the record shows the court did not enhance Johnson's sentence as a result of Johnson's admissions, for reasons already discussed we have concluded the court committed reversible error by failing to provide Johnson with proper Boykin-Tahl/Yurko advisements and to obtain proper waivers from him before it accepted his admissions.
In sum, because we cannot infer on the record before us that Johnson knowingly and intelligently waived his Boykin-Tahl rights when he admitted the truth of the enhancement allegations, we conclude those admissions must be set aside. In light of the trial court's unchallenged decisions to strike the enhancement allegations and to impose no sentencing enhancements, we need not remand the matter to the trial court for adjudication of those allegations, either by admission or trial, and for resentencing. Rather, we shall order Johnson's admissions set aside.
III. PENAL CODE SECTION 654 (COUNTS 4 & 5)
Last, Johnson contends that, under Penal Code section 654, the court should not have sentenced him on both count 4 (sale of cocaine base on December 9 in violation of 11352, subd. (a)) and count 5 (possession for sale of cocaine base on December 9 in violation of § 11351.5), because both offenses "evolve out of the same incident." The People assert they have "no opposition to the judgment being modified to stay the concurrent term on [c]ount 5" under Penal Code section 654.
A. Applicable Legal Principles
Penal Code section 654, subdivision (a) provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
Penal Code section 654 "precludes multiple punishment for a single act or omission, or an indivisible course of conduct" (People v. Deloza (1998) 18 Cal.4th 585, 591) and ensures that the defendant's punishment will be commensurate with his or her criminal culpability. (People v. Kramer (2002) 29 Cal.4th 720, 723.) If a defendant suffers two convictions, and punishment for one is barred by Penal Code section 654, "that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed." (Deloza, supra, 18 Cal.4th at pp. 591-592.)
Whether a course of conduct is indivisible for purposes of Penal Code section 654 depends on the intent and objective of the defendant, not the temporal proximity of the offenses. (People v. Hicks (1993) 6 Cal.4th 784, 789.) If all the criminal acts were incident to one objective, then punishment may be imposed only as to one of the offenses committed. (People v. Rodriguez (2009) 47 Cal.4th 501, 507.) If, however, the "defendant harbored 'multiple criminal objectives, ' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Harrison (1989) 48 Cal.3d 321, 335.)
Generally, the trial court has broad discretion in determining the factual issue of whether a defendant has multiple objectives for purposes of Penal Code section 654, and on appeal we will uphold the court's express or implied finding that a defendant held multiple criminal objectives if it is supported by substantial evidence. (See People v. Osband (1996) 13 Cal.4th 622, 730; People v. Blake (1998) 68 Cal.App.4th 509, 512.)
B. Analysis
The People assert that the concurrent term imposed for Johnson's conviction of count 5 (possession for sale of cocaine base on December 9 in violation of § 11351.5) should be stayed because count 5 and count 4 (sale of cocaine base on December 9 in violation of 11352, subd. (a)) both arose out of the December 9 incident in which Johnson sold cocaine base to Detective Johnson.
We agree the judgment must be modified under Penal Code section 654 to stay the concurrent term imposed for count 5, because the record shows Johnson harbored a single intent and objective─to sell the cocaine base─when he committed both offenses during that single course of conduct on December 9.
DISPOSITION
The three-year concurrent sentence imposed for count 5 (possession for sale of cocaine base on December 9 in violation of § 11351.5) is ordered stayed pursuant to Penal Code section 654. The trial court is directed to prepare an amended abstract of judgment to reflect this modification of the sentence and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. Johnson's admissions regarding the truth of the enhancement allegations are set aside. As so modified, the judgment in all other respects is affirmed.
WE CONCUR: HALLER, J.O'ROURKE, J.