Opinion
A150280
07-20-2018
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ANGEL LANDA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 16SF008701-A)
Defendant Miguel Landa appeals a judgment following his plea of nolo contendere to felony burglary (Pen. Code, § 460, subd. (b).) He contends that his admission of a prior strike conviction was not knowing and intelligent because the trial court did not separately advise him of his constitutional rights in connection with that admission as required by Boykin v. Alabama (1969) 395 U.S. 238, 243-244 (Boykin); In re Tahl (1969) 1 Cal.3d 122, 130-133 (Tahl), disapproved on other grounds in Mill v. Municipal Court (1973) 10 Cal.3d 288, 306, footnote 16; and In re Yurko (1974) 10 Cal.3d 857, 863 (Yurko), disapproved on other grounds in People v. Howard (1992) 1 Cal.4th 1132, 1174-1180. We disagree, and will affirm the judgment.
All statutory references are to the Penal Code.
I. BACKGROUND
Landa was charged by felony information with attempted criminal threats (§§ 664, 422, subd. (a); count one), and burglary of a vehicle (§ 460, subd. (b); count two). The information also alleged that Landa had suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subd. (b)) and a prior serious felony conviction (§ 667, subd. (a)(1)), both stemming from a 2004 conviction of assault with a deadly weapon with a gang enhancement (§§ 245, subd. (a)(1), 186.22, subd. (a)). The information also charged that Landa had committed the charged offenses while on felony probation and therefore was ineligible for probation (§1203, subd. (k)). Landa pled not guilty and denied the allegations.
On September 6, 2016, Landa filed a change of plea form in which he stated that he wished to plead no contest to count two and to admit the strike prior allegation under section 1170.12, subdivision (c)(1). The change of plea form listed the charges and allegations against Landa. In the form, Landa recited that he understood the nature of the charges against him; that he had discussed the nature of the charges against him and the possible defenses with his attorney; and that his attorney had explained his constitutional rights to a trial by jury, to confront witnesses against him, the process of the court to compel the attendance of witnesses on his behalf, and the right to remain silent or to testify. In it, Landa stated, "I do realize that I give up these rights by pleading guilty or nolo contendere." Landa also stated that his attorney had explained that the maximum penalty that could be imposed as a result of his plea was six years in state prison and three years of post-release community supervision, plus fines and other conditions. It listed the terms of a negotiated disposition, which included a 32-month sentence, reference to probation, the court's consideration of a Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), restitution, and a no-contact order with the victim of the burglary. Landa and his counsel, Jeffery B. Jackson, both signed the change of plea form. By his signature, Jackson certified, among other things, that he had "personally read and explained the contents of the above declaration to the defendant" and concurred in defendant's plea.
At the hearing, the trial court asked Landa whether he had read, understood, and signed the plea form, and Landa responded that he had. The trial court then engaged in a lengthy oral colloquy with Landa during which he expressly waived his Boykin/Tahl rights:
"[Q.] Do you understand the nature of the charges against you?
"[A.] Yes.
"[¶] . . . [¶]
"[Q.] The waiver of rights form sets forth your constitutional rights. You have a right to a speedy public trial by jury. At a jury trial all 12 jurors must agree as to your guilt before you could be found guilty. Do you understand that right?
"[A.] Yes.
"[Q.] And do you give up that right?
"[A.] Yes.
"[Q.] Your right to be confronted by witnesses against you and the right to cross-examine them through your attorney. Do you understand that right?
"[A.] Yes.
"[Q.] And do you give up that right?
"[A.] Yes.
"[Q.] The right to use the process of the court to compel the attendance of witnesses on your behalf. Do you understand that right?
"[A.] Yes.
"[Q.] And do you give up that right?
"[A.] Yes.
"[Q.] The right to present evidence in your behalf as a defense to the charges, including your right to testify in your own defense. Do you understand that right?
"[A.] Yes.
"[Q.] And do you give up that right?
"[A.] Yes.
"[Q.] Your right to remain silent, that is your right to not testify against yourself if you so choose. Do you understand that right?
"[A.] Yes.
"[Q.] And do you give up that right?
"[A.] Yes.
"[¶] . . . [¶]
"[Q.] And do you understand that by entering a plea of guilty or no contest you'll be waving or giving up all the rights which I've explained to you?
"[A.] Yes.
"[Q.] Do you understand that a plea of no contest has the same legal effect as a plea of guilty?
"[A.] Yes."
The court thereupon found that "the Defendant has made a free, knowing, and intelligent waiver of his constitutional rights," and ordered the plea waiver form to be filed. Following Landa's entry of a no contest plea to count two, the court then asked: "And with respect to the prior conviction, strike—prior strike conviction, which is alleged as Prior 1 on page 2 of the information, alleging that you had a prior conviction set forth and listed there, that qualifies as a strike, within the meaning of Penal Code Section 1170.12 [subdivision] (c)(1), do you admit to the special allegation?" Landa responded, "Yes." The court thereupon accepted Landa's plea and ordered it entered. The court also executed the Findings and Order section of the plea form, similarly reciting, "The defendant personally and by his . . . attorney in open court having this date entered a plea of . . . nolo contendere, and having been advised as to his . . . rights, said plea is hereby accepted and ordered entered. The Court finds that the defendant made a knowing, intelligent and voluntary waiver of the above rights, and that a factual basis exists for such plea."
On October 5, 2016, Landa filed a Romero motion to dismiss his prior strike conviction, and asked the court to sentence him to probation and one year in the county jail. The People opposed the motion and urged the court to sentence Landa to the agreed-upon "top" of 32 months in state prison. The trial court denied the motion and sentenced Landa to the low term of 16 months, doubled to 32 months based on his prior strike conviction, in accordance with the plea agreement and the probation department's recommendation. This timely appeal followed.
II. DISCUSSION
Landa contends that his admission of his prior strike conviction was not knowing and intelligent because, while he "admittedly was informed that he had the rights to a jury trial, to confront and cross-examine witnesses, and against self-incrimination," neither the change of plea form nor the court separately informed him of those rights with respect to the allegation of the prior strike conviction.
"When a criminal defendant enters a guilty plea, the trial court is required to ensure that the plea is knowing and voluntary. [Citation.] As a prophylactic measure, the court must inform 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).) "Proper advisement and waivers of these rights in the record establish a defendant's voluntary and intelligent admission of the prior conviction." (People v. Mosby (2004) 33 Cal.4th 353, 356 (Mosby).) The same requirements of advisement and waiver also apply when a defendant admits the truth of a prior conviction allegation that subjects him to increased punishment. (Yurko, supra, 10 Cal.3d at p. 863.) So-called Yurko error involving Boykin/Tahl admonitions is reviewed under the test used to determine the validity of guilty pleas under the federal Constitution. (People v. Howard (1992) 1 Cal.4th 1132, 1175.) "Under that test, a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances." (Ibid.; accord, Cross, at p. 171.)
The People assert first that because Landa did not object to the lack of a separate advisement at the time of sentencing, and agreed to the sentence ultimately imposed as part of the negotiated disposition, he has forfeited any objection here. However, in Cross, our Supreme Court explicitly rejected a closely similar forfeiture argument. There, the defendant challenged an unwarned stipulation to a prior conviction that had the direct consequence of subjecting him to a longer prison term. The Court rejected the Attorney General's argument that Cross had forfeited his claim because he did not object to the lack of advisement and waiver at trial. (Cross, supra, 61 Cal.4th at p. 173.) Referring to its decision in People v. Palmer (2013) 58 Cal.4th 110, which held that the defendant did not forfeit a claim that the trial court made an inadequate inquiry into the factual basis for his guilty plea, the Court held that "[t]he same constitutional standards of voluntariness and intelligence apply when a defendant forgoes a trial on a prior conviction allegation. [Citation.] Thus, just as Palmer could not forfeit his claim that the trial court should have ensured his plea was voluntary and knowing by inquiring into its factual basis, Cross cannot forfeit his claim that the trial court should have ensured his stipulation was voluntary and knowing by advising him of his right to 'a fair determination of the truth of the prior [conviction] allegation.' [Citation.]" (Cross, at p. 173.) The same conclusion follows here.
The People's reliance on People v. Jones (2009) 178 Cal.App.4th 853 is misplaced. There, the trial court failed to advise the defendant of the direct consequences of admitting his prior arson conviction, which included an increase in the sentence, doubling of the base term of his offense under the "Three Strikes" law, and the addition of a five-year term because the prior conviction qualified as a serious felony. The court, following People v. Wrice (1995) 38 Cal.App.4th 767, held that " 'when the only error is a failure to advise [the defendant] of the penal consequences [of admitting a prior conviction], the error is waived if not raised at or before the time of sentencing.' " (Jones, at p. 858.) Here, however, Landa does not contend that the trial court failed to advise him of the penal consequences of his admission, and in fact, it explicitly did so.
Turning to the merits, the principal issue Landa raises here—whether a defendant who enters a guilty plea and at the same time admits a prior conviction must separately waive his or her Boykin/Tahl rights as to the latter—was squarely decided in a case neither party has cited, People v. Forrest (1990) 221 Cal.App.3d 675 (Forrest). In Forrest, pursuant to a plea agreement, the defendant pled guilty to two counts of robbery, admitted the allegations that he used a dangerous weapon in connection with each robbery, admitted the truth of two alleged prior serious felony convictions, and admitted that he had served a prior prison term. (Id. at p. 677.) The magistrate expressly advised the defendant of his constitutional rights, including the right to a jury trial, and the defendant expressly waived each of these rights. (Id. at p. 678.) However, he contended on appeal that "before accepting a guilty plea and admissions of prior convictions in a single plea proceeding, the magistrate must expressly and separately advise defendant of his right to a jury trial on the prior convictions." (Id. at pp. 678-679.) The court rejected the defendant's argument, holding squarely that "where there is nothing in the manner in which the plea is taken which actually or in effect separates the substantive offense from the prior conviction allegation, a single express advisement and waiver of defendant's constitutional rights is sufficient under Boykin, Tahl and Yurko." (Id. at p. 681; cf. People v. Sivongxxay (2017) 3 Cal.5th 151, 177 [separate waiver of jury trial with respect to special circumstance allegation required by People v. Memro (1985) 38 Cal.3d 658 "does not demand 'that a defendant's waiver of his jury-trial right on special circumstance allegations be taken in accordance with a prescribed ritual, e.g., a separate interrogation of defendant about his special circumstance jury trial rights as distinct from his other jury trial rights' "].)
The holding in Forrest is consistent with California law, which scrutinizes the totality of the circumstances in determining whether a defendant has voluntarily and intelligently waived his or her rights, rather than imposing rigid and formalistic requirements such as that Landa urges here. (See, e.g., People v. Farwell (2018) 5 Cal.5th 295, 303-304 [totality of the circumstances test applies in all circumstances where the court fails, either partially or completely, to advise and take waivers of the defendant's trial rights before accepting a guilty plea]; Mosby, supra, 33 Cal.4th at p. 365 [under the totality of the circumstances, defendant voluntarily and intelligently admitted his prior conviction despite being advised of and having waived only his right to jury trial]; People v. Howard, supra, 1 Cal.4th at pp. 1178-1180 [defendant's admission of prior conviction constituted a knowing and voluntary waiver of his constitutional rights despite the absence of an express waiver of the privilege against self-incrimination].)
Forrest is dispositive of Landa's claim. Here, as there, Landa's plea to the substantive offenses and his admission of the prior conviction "occurred in a single proceeding and were not actually separated in time." (Forrest, supra, 221 Cal.App.3d at p. 681.) Further, Landa was twice advised of his rights, and twice expressly agreed to waive those rights—first in a written change of plea form, and second on the record before the trial court. Moreover, in the written plea form, Landa confirmed that his attorney had explained his constitutional rights to him, and Jackson likewise certified in writing that he had personally read and explained the contents of the plea form to Landa. No more was required.
Landa also argues that his plea was not knowing and intelligent because the record is "ambiguous" as to whether his prior conviction was a "strike" within the meaning of the Three Strikes law. He points out that the probation report described the conviction as based on his involvement in a physical assault on the victim, a rival gang member, but made no reference to his having used a deadly weapon.
Landa's arguments are unavailing. Both the information and the change of plea form explicitly cited the statute (§1170.12) under which that prior conviction was considered a strike. Nor is there any question that Landa admitted the special allegation that he had suffered a prior strike; in its colloquy, the trial court explicitly called the allegation to his attention and made it clear that the prior conviction "qualifies as a strike, within the meaning of Penal Code Section 1170.12 [subdivision] (c)(1)." Landa's admission that the prior conviction was a strike forecloses any challenge on appeal to the factual basis for the plea. (People v. Palmer, supra, 58 Cal.4th at p. 114.) In any event, because Landa's prior felony assault conviction was enhanced for his participation in a criminal street gang (§ 186.22, subd. (a)), it was a serious felony, and consequently a strike. (See § 1192.7, subd. (c)(28) ["serious felony" includes "any felony offense, which would also constitute a felony violation of Section 186.22"]; § 186.22, subd. (e)(1) [assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in section 245].) There was no ambiguity.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Schulman, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Reardon, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------