Opinion
C088919
05-29-2020
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY PATRICK MCKENNA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 6215851)
Pursuant to a plea agreement, defendant Timothy Patrick McKenna pled no contest to second degree robbery and admitted a prior strike conviction. The trial court sentenced defendant to the upper term of five years, doubled to 10 years for the prior strike, in accordance with the plea agreement. On appeal, defendant argues he was not properly advised of his constitutional rights prior to admitting the prior strike. We affirm the judgment.
I. BACKGROUND
Defendant entered a bank and told a teller, "This is a robbery. Give me all your money." The teller put $3,714 in a black bag defendant gave her that she thought contained a gun. Defendant was arrested after attempting to flee police officers.
Defendant was charged with attempted second degree robbery, second degree robbery, and resisting or obstructing a peace officer. Defendant was also charged with three prior strikes (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), three prior serious felony convictions (§ 667, subd. (a)(1)), and a prior prison term enhancement (§ 667.5, subd. (b)).
Undesignated statutory references are to the Penal Code. --------
Defendant pled no contest to second degree robbery and one prior strike. For the plea, defendant signed an advisement and waiver of rights form. The form stated he was pleading to the second degree robbery count with a potential range of "2-3-5" and a potential enhancement of "PC 667(b)-(i)" for a total sentence of "UT x 2 = 10 yrs." The form confirmed defendant was giving up his rights to a jury trial, confront witnesses, subpoena witnesses, testify in his own defense, and to remain silent and not self-incriminate. Defendant initialed next to each of these rights advisements signifying he understood both the right and that he gave up the right.
The trial court confirmed defendant's plea at a hearing the same day he signed the advisement form. The court explained to defendant: "You would be entering a plea of no contest to a violation of . . . [s]ection 211, a felony. As a result, you would—and admitting a prior strike and, as a result, be sentenced to state prison in the state of California for ten years. That's your understanding of what's going to happen?" Defendant responded, "Yes." The court next confirmed with defendant he had signed and initialed the advisement and waiver of rights form, he had read over the form with his attorney, he understood what rights he was giving up, and he understood the consequences of the plea. The court then asked how defendant pled for the second degree burglary charge and defendant responded, "No contest." Defendant confirmed he understood this had the same effect as a guilty plea. The court also read the details of the prior serious or violent felony and stated it constituted a strike. The court asked, "Do you admit that prior conviction, sir?" Defendant responded, "Yes." The court accepted his admission.
The court sentenced defendant to the upper term of five years and because "the defendant has admitted a prior strike, that five years becomes ten years." The prosecutor then moved to dismiss the other two counts and the remaining allegations. The court granted the motion.
II. DISCUSSION
Defendant contends he did not knowingly waive his constitutional rights to a jury trial, to confront his accusers, and against self-incrimination, known as Boykin-Tahl rights, before making his no contest plea for the prior strike. Though the plea was knowingly made for the second degree robbery count, defendant asserts the "court and parties simply forgot to [] make sure [defendant] knowingly waived his rights as to the []prior conviction." The People concede the advisement was lacking for the strike plea, but argue the error was harmless.
Underlying the parties' arguments is the unsupported assumption trial courts must provide separate advisements and waivers for both a substantive offense and an enhancement, even where, as here, the plea and the admission are taken together in the same hearing and the waiver form encompasses both. This is not the case.
" 'Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial.' [Citation.] These include the privilege against self-incrimination, the right to trial by jury, and the right to confrontation." (People v. Farwell (2018) 5 Cal.5th 295, 299, citing Boykin v. Alabama (1969) 395 U.S. 238, 243 ; In re Tahl (1969) 1 Cal.3d 122, 130-131.) "[T]he record must demonstrate that the defendant voluntarily and intelligently waived his constitutional trial rights." (Farwell, supra, at p. 300.) " '[A] plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.' " (Id. at p. 301.) "Waivers may be manifested either orally or in writing." (People v. Panizzon (1996) 13 Cal.4th 68, 80.)
Boykin-Tahl advisements are required for admissions of prior felony convictions. (In re Yurko (1974) 10 Cal.3d 857, 863.) But there is no requirement that a defendant must receive a separate set of advisements for both a plea to a substantive offense and a plea to a prior conviction made simultaneously and where the waiver form encompasses both. This conclusion is supported by People v. Forrest (1990) 221 Cal.App.3d 675 (Forrest), a case neither party cites. There, the trial court gave Boykin-Tahl advisements before the defendant pled guilty to substantive offenses and admitted prior convictions. (Id. at p. 678, fns. 3 & 4.) The defendant asserted on appeal the trial court failed to expressly advise him of his constitutional right to a jury trial before he admitted the prior convictions, relying on several cases requiring advisement of rights for prior convictions, including Yurko. (Forrest, supra, at pp. 677, 679.) The court disagreed, finding that in these cases, "the prior conviction and the current substantive offense to which the prior conviction related were each addressed in separate proceedings." (Id. at p. 679.) Nothing in those cases "requires a separate advisement and waiver of rights where, as here, defendant in a single proceeding pleads guilty to a current charge and also admits that he suffered prior convictions." (Ibid.)
Forrest held "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. . . . [W]e conclude that the single express advisement was sufficient in this case to inform defendant of each of his constitutional rights . . . and that defendant, as reflected in the record, knowingly waived each of those rights." (Forrest, supra, 221 Cal.App.3d at p. 681.) This analysis is consistent with recent California law confirming courts must scrutinize the totality of the circumstances in determining whether a defendant has voluntarily and intelligently waived rights. (See People v. Farwell, supra, 5 Cal.5th at pp. 303-304.)
Forrest is applicable to the advisement of rights here. There, as here, defendant's plea to the substantive offense and his admission of the prior conviction "occurred in a single proceeding and were not actually separated in time," nor did the trial court "separate the substantive offense[] from the prior conviction allegation[], in effect, by the manner in which the advisement was given and the waiver was taken." (Forrest, supra, 221 Cal.App.3d at p. 681.) The pleas being taken together and both referenced in the same waiver distinguishes this case from those cited by the parties here. (See People v. Howard (1992) 1 Cal.4th 1132, 1174 [defendant admitted prior prison term before trial and did not plead to substantive offense]; People v. Cross (2015) 61 Cal.4th 164, 170 [defendant stipulated at trial to a prior conviction and did not plead to substantive offense].) The advisement and waiver form with the court's colloquy expressly notified defendant he was waiving his Boykin-Tahl rights for both the second degree robbery plea and the prior conviction admission. Nothing was further required to confirm defendant intelligently and voluntarily waived his rights.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J.
We concur:
/S/_________
MAURO, Acting P. J.
/S/_________
DUARTE, J.