Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF132060, Patrick F. Magers, Judge.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Melissa Mandel, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King J.
A jury convicted defendant of one count of petty theft with a prior. (Pen. Code, § 666.) Defendant admitted an allegation that he had suffered a prior strike conviction. (§§ 667, subds. (c) & (e), 1170.12, subd. (c)(1).) On appeal, defendant contends the prior strike allegation must be reversed because there is no evidence that the trial court properly admonished and took a waiver of defendant’s constitutional rights to a jury trial, right of confrontation, and privilege against self-incrimination. We find that, under the totality of the circumstances, defendant’s admission of the prior strike conviction was voluntary and intelligent and, therefore, affirm the judgment below.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
The People charged defendant by information with one count of petty theft with a prior (§ 666) in which the prior was alleged to have been a conviction for first degree burglary on March 12, 1998. Additionally, a prior strike conviction was alleged as to the same prior conviction. Before trial, defense counsel indicated defendant would stipulate to the prior conviction as an element of the substantive offense. In that regard, the court engaged in the following colloquy with defendant:
“THE COURT: . . . [¶] . . . [defendant], under Count 1, an element of the offense is that you sustained a prior theft-related conviction, and it is alleged that that crime would be a violation of [section] 459 of the Penal Code, a burglary, on August, the 2nd, 1998 [sic], in the Superior Court, County of Riverside. [¶] You do have a right to have the jury hear the evidence to determine whether or not that is true. [¶] You have a right to be present, to see, hear, question and cross-examine all witnesses on that issue. [¶] You have a right to defend that allegation by testifying on your own behalf. [¶] You have the right to have other evidence and witnesses brought into court to defend against that allegation. [¶] At this time, it is suggested that you stipulate or admit to that conviction so the jury will not be aware of that.
“THE DEFENDANT: Yes.
“THE COURT: Obviously, if you are found not guilty of the theft, then the admission of the prior is of no consequence. [¶] Do you understand?
“THE DEFENDANT: Yes, I do.
“THE COURT: Okay. At this time, do you admit to the first-degree burglary on March 12th, 19[9]8?
“THE DEFENDANT: Yes.”
In his defense, defendant took the stand, during which he admitted his convictions for numerous prior offenses, including the 1998 burglary, a petty theft in 1998, an additional first degree burglary in 1996, misdemeanor check fraud in 1997, felony possession of a controlled substance for sale, and felony vandalism. Defendant testified that while he pled guilty to all the prior offenses, he took the current charges to trial because he was innocent: “I did not do this one. This is why I’m here. Here at trial.” After the conclusion of the trial, but before closing arguments, the court asked defense counsel how they wanted to handle the prior strike allegation. Defense counsel responded, “we will probably waive jury and—and have the Court try that, and we may stipulate to it. I haven’t talked to him about it. We will make that decision tomorrow.” The court then immediately permitted counsel time to confer with defendant, after which defense counsel stated: “I’ve talked to [defendant], and he’s agreed to waive a jury trial, waive a Court trial, and stipulate to the priors, specifically the strike prior of March 12th, 19[9]8.” The minute order for that date indicates that the court and counsel had conferred regarding the prior strike allegation. Furthermore, it reflects that, “Defense states that if defendant is convicted he will waive [a] jury trial on [the] prior strike [allegation].”
During his closing argument, defense counsel commented on defendant’s choice to take the stand during the trial: “He could have hid behind the Fifth Amendment and not told you his story. . . . [H]e elected to tell you his story because you’re all he has left.” At the originally scheduled sentencing date held approximately one month after defendant’s conviction, the following colloquy occurred regarding the prior strike allegation:
“THE COURT: . . . The matter is set for sentencing, and also we have the pending [section] 667[, subdivisions] (c) and (e) [allegation]. And did we resolve that?
“[DEFENSE COUNSEL]: We did. My understanding is we stipulated to it at the outset of the trial.
“THE COURT: And I just want to make sure that that has been resolved, because on the face of the probation officer’s report it says ‘counts pending.’
“THE CLERK: Your Honor, I believe in the minutes it said that the client stipulated that if he was convicted he would admit to it. That’s what was written in the minutes, so that’s why it doesn’t have that he actually admitted it, but there was a stipulation if he was convicted there would not be a trial on the priors.
“[DEFENSE COUNSEL]: That is the way I understand it. Do we then need to make an admission to the priors formally?
“THE COURT: Probably. Probably. All right. In the Information under Count 1 it is alleged that on or about March 12, 1998, in the Superior Court, County of Riverside, that you were convicted of the crime of first-degree burglary, and this is alleged as a strike. The effect of the strike is to double the base punishment for the primary charge; primary charge being [section] 666 of the Penal Code. And previously you have been convicted by jury of that charge. And at this time, sir, do you admit that the allegation is true that on March 12, 1998, that you were convicted of first-degree burglary?
“THE DEFENDANT: Yes, I do.
“THE COURT: All right. And you concur?
“[DEFENSE COUNSEL]: Yes, Your Honor.
“THE COURT: All right. The Court will take the admission. . . .”
Thereafter, the court sentenced defendant to an aggregate four-year term of imprisonment, consisting of the midterm of two years on count 1, doubled pursuant to the strike prior.
II. DISCUSSION
Defendant contends that he was never specifically advised of his constitutional rights concerning self-incrimination, confrontation, and jury trial with regard to the effect of his admission on the section 667, subdivisions (c) and (e) sentence enhancement. (See In re Yurko (1974) 10 Cal.3d 857, 863-864; Boykin v. Alabama (1969)395 U.S. 238, 243 [89 S.Ct. 1709, 23 L.Ed.2d 274]; In re Tahl (1969) 1 Cal.3d 122, 132.) While we agree that the court failed to provide constitutional admonishments to defendant regarding his rights and take a waiver of those rights immediately prior to its taking of defendant’s admission of the prior offense, we find that the error does not require reversal because the record demonstrates that the admission was made voluntarily and intelligently. (See People v. Mosby (2004) 33 Cal.4th 353, 361 (Mosby); People v. Howard (1992) 1 Cal.4th 1132, 1178.)
In the first instance, we note that Mosby makes clear that the United States Supreme Court’s decision in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435] revealed that defendants do not have a federal constitutional right to a jury trial for a determination of whether a defendant has suffered a prior conviction. (Mosby, supra, 33 Cal.4th at p. 360.) Similarly, the California Constitution provides no such right. (Ibid.) Thus, a defendant’s right to jury trial on an allegation of a prior strike conviction is purely statutory. (Ibid.; §§ 1025, subd. (b), 1158.) Nevertheless, for the sake of argument, Mosby assumed that a defendant’s state constitutional right to due process may encompass a defendant’s rights to confrontation and against self-incrimination. (Mosby, supra, at p. 360.) In its own case, Mosby determined that the defendant’s admissions were voluntarily and intelligently made when he was informed only of his right to a trial on the allegation, but not his rights against self-incrimination and confrontation. Thus, the test for whether a defendant has voluntarily and intelligently entered an admission to a prior strike conviction is whether “the totality of circumstances surrounding the admission supports such a conclusion.” (Id. at p. 356.) We believe here, after examining the record in its entirety, the circumstances abundantly indicate that defendant admitted his prior strike conviction voluntarily and intelligently, with full knowledge of his constitutional and statutory rights.
The court twice admonished defendant that he had a right to a trial by jury, a right to confront and cross-examine witnesses against him, a right to present evidence on his own behalf, a privilege against self-incrimination, and advised him of the charges against him and the consequences of his plea with regard to both the substantive offense and the prior strike allegation. These admonishments occurred at defendant’s arraignment on the complaint and his arraignment on the information. Prior to trial, when defense counsel indicated defendant would stipulate to the prior conviction as an element of the substantive offense, the court admonished defendant again that he had a right to a jury trial on the issue, a right to confrontation of the witnesses against him, a right to present evidence on the issue, and a right to testify. After expressing comprehension of those rights, defendant admitted his conviction for purposes of an element of the substantive offense. On the stand, defendant indicated that he understood he had a right to a trial on offenses charged against him when he indicated that while he had pled guilty to previous offenses, he took the instant case to trial because he was innocent. After the court permitted a conference between defense counsel and defendant regarding how they wished to handle the prior strike allegation, defense counsel indicated that, “I’ve talked to [defendant], and he’s agreed to waive a jury trial, waive a Court trial, and stipulate to the prior[], specifically the strike prior of March 12th, 19[9]8.” The court then asked defendant if that was correct, to which defendant replied it was.
While the court did not expressly admonish defendant of his rights immediately before taking defendant’s stipulation to the prior, it strains credulity to believe that, at this point, defendant did not already know his constitutional and statutory rights as they related to the prosecution’s burden to prove the allegation. The court had issued such admonishments to defendant on three prior instances in this case alone. Moreover, defendant was represented by counsel who had apparently just explained defendant’s rights to him. (Mosby, supra, 33 Cal.4th at p. 364.) Defendant indicated that he did, indeed, waive both his rights to a jury and bench trial on the prior strike allegation. Defendant had just undergone a trial for the substantive offense in which he exercised his right to a jury trial and to confrontation of witnesses against him. While he did not exercise his right against self-incrimination, it is apparent he did so on the advice of counsel after having been informed of his privilege not to take the stand. As defense counsel indicated in his closing remarks, “[defendant] could have hid behind the Fifth Amendment and not told you his story. . . . [H]e elected to tell you his story because you’re all he has left.” (Italics added.)
At the date initially set for sentencing, the court requested of the parties whether the matter of the prior strike allegation had been resolved. Defense counsel replied that defendant had already admitted it prior to trial. Nonetheless, just to be sure, the court insisted on taking a “formal” admission of the truth of that allegation. Thus, the court again explained the allegation against defendant and its consequences should he admit its truth. Defendant indicated that he understood and admitted the allegation. Defense counsel concurred in that admission. If anything, the taking of defendant’s admission of the prior strike allegation at this time was redundant and simply afforded defendant even further assurances that his rights were being protected.
Furthermore, we note that Mosby determined that “‘a defendant’s prior experience with the criminal justice system’ is . . . ‘relevant to the question [of] whether he knowingly waived constitutional rights.’ [Citation.] That is so because previous experience in the criminal justice system is relevant to a recidivist’s ‘“knowledge and sophistication regarding his [legal] rights.”’ [Citations.]” (Mosby, supra, 33 Cal.4th at p. 365.) Here, defendant admitted on the stand, under oath, that he had suffered prior convictions for burglary and petty theft in 1998, first degree burglary in 1996, misdemeanor check fraud in 1997, felony possession for sales in some unnoted year, and felony vandalism two months prior to trial in the current matter. Defendant testified that he had pled guilty to each of those offenses. Thus, we can be sure that defendant had been informed of and knowingly and intelligently waived his constitutional rights as to each of those offenses. (Ibid.) Hence, his understanding of the criminal justice system and his rights in regard to the prior strike allegation were substantial and his admission was, therefore, made knowingly and intelligently.
Finally, as Mosby also noted, “[U]nlike a trial on a criminal charge, trial on a prior conviction is ‘simple and straightforward,’ often involving only a presentation by the prosecution ‘of a certified copy of the prior conviction along with the defendant’s photograph [or] fingerprints’ and no defense evidence at all.” (Mosby, supra, 33 Cal.4th at p. 364.) Here, it is difficult, if not impossible, to imagine how defendant’s exercise of his rights would have benefitted him at all. The People already offered, and the court admitted into evidence, a certified rap sheet of defendant’s first degree burglary conviction of March 12, 1998, at the preliminary hearing. After an admonishment of his rights, defendant admitted he had sustained the prior conviction as an element of the substantive offense. Moreover, defendant admitted on the stand, under oath, that he had, indeed, been convicted of the burglary which was alleged as a prior strike. Thus, defendant’s disputations are purely academic at best.
Defendant’s citations to People v. Stills (1994) 29 Cal.App.4th 1766, People v. Campbell (1999) 76 Cal.App.4th 305, and People v. Moore (1992) 8 Cal.App.4th 411 are unavailing for the proposition that the instant matter is a “silent record case,” containing no admonishments or waivers of rights and, therefore, requires reversal. In all of those cases, the courts indicated that no admonitions or waivers with respect to any of the defendants’ rights had been given or taken. (People v. Stills, supra, at pp. 1770-1771; People v. Campbell, supra, at p. 310; People v. Moore, supra, at p. 417.) Here, as noted above, defendant had received three such admonitions and had expressly waived those rights on at least two occasions prior to his admission of the prior strike allegation. Moreover, those cases found no evidence that the defendants’ admissions were voluntary or intelligent. Juxtaposed with the facts of the current case, we see overwhelming evidence that this defendant knew and understood his rights; thus, his waiver of those rights was intelligent and voluntary. Finally, those cases predate Mosby, which expanded and developed the criteria for determining whether a defendant’s admission of a prior conviction was knowing and voluntary. We have applied those criteria in the instant case and find defendant’s claim wanting.
Although not pointed out by either counsel, we note that both the sentencing minute order of February 5, 2007, and the abstract of judgment reflect that the court imposed the midterm of four years, not the two years it actually imposed. Likewise, neither document reflects imposition of punishment for the prior strike conviction. Thus, while both show the correct aggregate prison term, neither reflects the accurate manner of its determination. Therefore, we shall order both documents corrected to reflect the imposition of the midterm of two years on the petty theft conviction, doubled pursuant to the strike prior.
III. DISPOSITION
The trial court is directed to prepare a corrected sentencing minute order for February 5, 2007, and abstract of judgment which accurately reflect the imposition of the midterm of two years for the petty theft conviction, doubled pursuant to the strike prior. The trial court is directed to deliver a certified copy of the corrected minute order and abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Ramirez P.J., Hollenhorst, J.