Opinion
E054228
11-26-2012
THE PEOPLE, Plaintiff and Respondent, v. VERONICA JENNIE MODESTO, Defendant and Appellant.
John D. O'Loughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia, and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
(Super.Ct.No. SWF10000037)
OPINION
APPEAL from the Superior Court of Riverside County. Larrie R. Brainard, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions.
John D. O'Loughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia, and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Veronica Jennie Modesto was caught shoplifting at a Sears store in Hemet. She appeals from judgment entered following jury convictions for commercial burglary (Pen. Code, § 459; count 1) and petty theft with a prior theft conviction (§§ 666/484, subd. (a); count 2). Defendant moved to bifurcate trial of the prior conviction and strike allegations (§§ 667.5, subd. (b), 667, subds. (c) and (e)(1), 1170.12, subd. (c)(1)). Defendant also waived her right to a jury trial on the prison prior and strike allegations and admitted she had prior convictions for two thefts and one attempted murder. The trial court sentenced defendant on count 1 to an aggregate sentence of five years in prison, consisting of four years for count 1, plus an additional year for the prison prior, and stayed the same sentence on count 2 under section 654.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends there was insufficient evidence to support imposition of the prison prior enhancements on counts 1 and 2 under section 667.5, subdivision (b), because defendant did not admit she served a prison term for her prior attempted murder conviction, and there was no evidence establishing she had served a prior prison term. Defendant also contends there was insufficient evidence to support her conviction for theft with a prior conviction under section 666 (count 2), because she did not admit, and there was no evidence establishing, that she served a prison term for her prior theft convictions. In addition, defendant contends the trial court violated her constitutional rights by not advising her of her rights to confrontation and against self-incrimination before she admitted her prior convictions for theft and attempted murder.
The parties agree, as does this court, that the trial court erred in imposing the same prison prior enhancement on more than one count, and therefore the enhancement must be stricken as to count 2. In all other respects, we reject defendant's contentions and affirm the judgment.
II
FACTS
Because the facts of this case are not necessary to resolution of the issues raised on appeal, we only briefly summarize them as follows. During the afternoon of December 16, 2009, Sears loss prevention agents observed defendant enter the store with an empty shopping cart, place store merchandise in the cart, and claim to be returning the merchandise, valued at approximately $75. After receiving store credit for the merchandise, defendant exited the store. The store's loss prevention manager, who had been alerted that defendant appeared to be shoplifting merchandise, confronted defendant as she exited the store. Defendant dropped her purse and ran away. Most of defendant's activities in the store were videotaped and displayed on monitors in the loss prevention office.
III
PRISON PRIOR ENHANCEMENT
Defendant contends there was insufficient evidence supporting the trial court's imposition of a prison prior enhancement on counts 1 and 2 (§ 667.5, subd. (b)). Defendant acknowledges she admitted she had a prior conviction for attempted murder but argues this admission was insufficient to support the prison prior enhancement under section 667.5, subdivision (b), because she did not admit she served a prison term, and there was no evidence establishing this.
A. Procedural Background
The information alleged that under section 667.5, subdivision (b), defendant was convicted on June 4, 2004, of the prior offense of attempted murder, served a prison term for the offense, and committed the charged crime within five years after completing the prison term for the prior offense. The information also alleged the same prior conviction of attempted murder constituted a serious and violent felony (strike) under sections 667, subdivisions (c) and (e)(1) and 1170.12, subdivision (c)(1). In addition, the People alleged in count 2 of the information (theft with a prior theft conviction; §§ 666/484, subd. (a)) that defendant had previously been convicted on June 4, 2001, of theft and served a prison term for the conviction.
Before jury voir dire in the instant case, defendant moved to bifurcate trial of the alleged prior convictions. The trial court asked whether defendant wished to have a jury trial of the prior conviction allegations in the event she was convicted of the charged offenses. Defense counsel stated: "She wishes to admit." The trial court asked if this included the 2001 petty theft prior. Defense counsel said defendant's admission included both the petty and grand theft offenses, which were not alleged as priors but were alleged as an element of count 2.
The court then explained to defendant: "Ms. Modesto, you have a right to proceed to jury trial as to the alleged priors herein and whether or not you have a prior for purposes of count 2." Defendant acknowledged she understood this. When the court asked her, "And do you give up that right . . . ?," she replied, "Yes."
The following additional discourse took place:
"THE COURT: And do you admit that in 2001 you were convicted of petty theft and grand theft on two separate occasions, one of each?
"THE DEFENDANT: Yes. [¶] . . . [¶]
"THE COURT: Now, I gather, Ms. Modesto, you admit that in 2004 you were convicted of attempted murder that actually occurred in 2002. [¶] Is that correct, ma'am?
"THE DEFENDANT: Yes.
"THE COURT: You admit that fact?
"THE DEFENDANT: Yes.
"THE COURT: You admit that is what we call a strike offense which doubles your punishment?
"THE DEFENDANT: Yes.
"THE COURT: All right. Is that sufficient for you?
"MR. MASON [defense counsel]: It is, your Honor."
After the jury returned its verdict, finding defendant guilty of commercial burglary (§ 459; count 1) and petty theft (§ 484, subd. (a); count 2), the trial court noted that defendant had previously admitted the two prior theft offenses and the strike, as alleged. Therefore count 2 was a felony theft offense.
At the sentencing hearing, the trial court noted that defendant "did admit of course that she has a strike prior. She has a prior prison term which was a strike." The court then sentenced defendant to four years for count 1, plus an additional year for the prison prior, and stayed the same sentence on count 2 under section 654.
As the People correctly concede, the trial court only asked defendant if she had suffered the prior convictions as alleged in the information. The trial court did not ask defendant if she had served prison terms on the convictions.
B. Applicable Law
As relevant here, subdivision (b) of section 667.6 provides for a mandatory consecutive one-year term "where the new offense is any felony for which a prison sentence . . . is imposed" and where the defendant served a "prior separate prison term," except when the prison term was "prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody . . . ." (§ 667.5, subd. (b).)
Under subdivision (d) of section 667.5, "[t]he additional penalties provided for prior prison terms shall not be imposed unless they are charged and admitted or found true in the action for the new offense." (§ 667.5, subd. (d).) Furthermore under subdivision (e) of section 667.5, "[t]he additional penalties provided for prior prison terms shall not be imposed for any felony for which the defendant did not serve a prior separate term in state prison or in county jail under subdivision (h) of Section 1170."
"Imposition of a sentence enhancement under Penal Code 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.) "Due process requires the prosecution to shoulder the burden of proving each element of a sentence enhancement beyond a reasonable doubt. [Citations.]" (Id. at p. 566.)
C. Discussion
Defendant argues that the prison prior under section 667.5, subdivision (b), must be vacated because defendant did not admit that she had served a prison term for her prior attempted murder conviction and there is no evidence establishing she did so. The People assert that, so long as the information alleges the essential facts of a prison prior enhancement, defendant's admission to that enhancement is sufficient. We agree.
We decline to follow People v. Lopez (1985) 163 Cal.App.3d 946, 950-951, which held that a valid admission of a prior prison term allegation required that the accused specifically admit, not only the prior conviction, but also the prior prison term and whether the defendant remained free of further convictions for a five-year period. Instead, as stated in People v. Watts (2005) 131 Cal.App.4th 589 (Watts), "We agree with the People that generally an admission of a prior conviction allegation admits all elements of the prior conviction and all elements of offenses necessarily included in the prior conviction offense, just as a plea of guilty admits every element of a charged offense. (Cf. People v. Westbrook (1999) 43 Cal.App.4th 220, 223-224 [a guilty plea admits every element of the charged offense and is a conclusive admission of guilt, and '[a]dmissions of enhancements are subject to the same principles as guilty pleas'].)" (Watts, at pp. 594-595.)
Viewing defendant's posttrial admissions in the context of the entire proceedings (People v. Mosby (2004) 33 Cal.4th 353, 356 (Mosby)), we conclude that when defendant admitted the prior conviction and strike allegations, she was admitting the enhancement allegations set forth in the information, which included all elements necessary to support the enhancements under section 667.5, subdivision (b). (Watts, supra, 131 Cal.App.4th at pp. 594-595; see also People v. Ebner (1966) 64 Cal.2d 297, 303 ["[d]fendant's admission of the prior convictions is not limited in scope to the fact of the convictions but extends to all allegations concerning the felonies contained in the information"]; People v. Cardenas (1987) 192 Cal.App.3d 51, 61 ["admission of prior convictions where the charging information specifically alleges the convictions resulted in prior separate prison terms is deemed an admission such prison terms were separately served"]; see also People v. Welge (1980) 101 Cal.App.3d 616, 623 ["admission of prior convictions cannot be construed as an admission that separate terms were served therefor, in the absence of an allegation in the information or complaint that the defendant served separate terms on the prior convictions"]; People v. Franco (1970) 4 Cal.App.3d 535, 540 ["Appellant's admission of the prior conviction thus included an admission that he had served a term therefor as alleged in the information, even though he was not asked, separately, whether he had served such term."]) Therefore, in the instant case, the section 667.5, subdivision (b), enhancement was properly imposed on count 1.
Defendant argues that the trial court erred in imposing the prison prior enhancement under section 667.5, subdivision (b), on both counts 1 and 2. The People agree, as does this court, that this constitutes sentencing error. Because the prison prior enhancement is directed to the nature of the offender, it can be imposed only once. (People v. Williams (2004) 34 Cal.4th 397, 402.) Therefore, the prison prior enhancement, imposed under section 667.5, subdivision (b), must be stricken as to count 2. As to count 1, the prison prior enhancement is proper.
IV
SUFFICIENCY OF EVIDENCE OF THEFT WITH A PRIOR CONVICTION
Defendant contends there was insufficient evidence to support her conviction for petty theft with a prior theft conviction under section 666 (count 2) because there was no evidence she served a prison term for the alleged prior theft conviction.
The information alleged in count 2 that defendant had previously been convicted on June 4, 2001, of theft and served a prison term for the conviction. Defendant waived trial by jury as to her prior conviction allegations, including the underlying prior conviction for theft, alleged in count 2. Defendant expressly admitted she had prior convictions for two theft convictions in 2001, "for purposes of Count 2." The court clarified that defendant admitted the two 2001 theft convictions, not as priors, but as "an element of Count 2." Defendant agreed she understood this. Defendant also admitted she had a conviction in 2004 for attempted murder. After the jury found defendant guilty of petty theft (count 2), the trial court dismissed the jury and stated that defendant "has admitted the two prior theft-related offenses, the strike as alleged. Therefore this Count 2 is in fact a felony offense."
Under section 666, a conviction for petty theft is punishable as a felony if the defendant has "been convicted of petty theft, grand theft, . . . burglary, . . . and having served a term of imprisonment therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, who is subsequently convicted of petty theft" (§ 666, subd. (b)) and "has a prior violent or serious felony conviction, as specified in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7" (§ 666, subd. (b)(1)).
This amended version of section 666, effective in September 2010, provides for incarceration in state prison upon conviction of petty theft with one prior theft conviction and a prior conviction for a violent or serious felony conviction under the Three Strikes law. (People v. Vinson (2011) 193 Cal.App.4th 1190, 1191.) "[T]the amendment to section 666 that became effective on September 9, 2010, applies retroactively" (id. at p. 1193), and therefore applies to the instant case, in which defendant committed the charged crimes in December 2009, but was sentenced in July 2011, after section 666 was amended. (People v. Wade (2012) 204 Cal.App.4th 1142, 1150-1151; see also Vinson, at p. 1199.)
Here, defendant admitted the underlying prior theft conviction, as alleged for purposes of charging defendant in count 2 with theft with a prior. Defendant also admitted she had a prior strike conviction for attempted murder. Defendant does not dispute these admissions or that the current version of section 666 applies retroactively. Rather, defendant argues that there is no evidence or admission she served a prison term for the prior convictions. But as we conclude above, regarding the section 667.5, subdivision (b) enhancement, defendant's admission of her prior convictions encompassed the allegation in the information that she served prison terms for the convictions. Count 2 of the information alleges in relevant part that "defendant having been previously convicted for the crime of THEFT on June 4, 2001, . . . and having thereafter served a term thereof in a Penal Institution and having been imprisoned therein as a condition of probation for said offense within the meaning of . . . section 666."
In People v. Franco (1970) 4 Cal.App.3d 535, 540, the court explained that, "Where 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. [Citations.] Appellant's admission of the prior conviction thus included an admission that he had served a term therefor as alleged in the information, even though he was not asked, separately, whether he had served such term."
Although in the instant case, there was no reading of the information right before defendant admitted the prior conviction allegations, the trial court explained to defendant the nature of the prior conviction allegations. The trial court further clarified that she was admitting the prior convictions alleged in count 2, "for purposes of Count 2." We conclude that, even though defendant was not specifically asked if she served a prison term for her prior 2001 theft convictions, the circumstances in the instant case reflect that defendant knowingly admitted that she not only admitted a prior theft conviction, but also that she served a prison term on the conviction, as alleged in count 2 of the information. (People v. Franco, supra, 4 Cal.App.3d at p. 540.)
V
WAIVER OF CONSTITUTIONAL RIGHTS
Defendant contends her admission of prior convictions was not made voluntarily and intelligently because she was not advised of her constitutional rights to confrontation and against self-incrimination before admitting her prior convictions. A. Procedural Background
In January 2011, defendant requested bifurcation of her prior conviction allegations trial of the substantive crimes. The trial court asked defendant if she also wished to admit her prior convictions. Defendant said she did. The court then informed defendant that she had a right to a jury trial of the prior theft conviction allegations. The court also advised defendant, "[Y]ou have a right to proceed to jury trial as to the alleged priors herein and whether or not you have a prior for purposes of Count 2." The court further explained that admitting the strike allegation would double her punishment. Defendant stated she understood she had a right to a jury trial of the prior conviction allegations and strike but nevertheless wished to waive that right.
B. Applicable Law
A criminal defendant who pleads guilty, relinquishes three constitutional rights: (1) the privilege against self-incrimination, (2) the right to a jury trial, and (3) the right to confront one's accusers. A waiver of these fundamental constitutional rights must be made knowingly, intelligently, and voluntarily. Such a waiver may not be presumed from a silent record. The record must affirmatively disclose that the waiver was made knowingly and voluntarily. (Boykin v. Alabama (1969) 395 U.S. 238, 243 (Boykin).)
In In re Tahl (1969) 1 Cal.3d 122, 132-133 (Tahl),the California Supreme Court similarly held that the trial court must advise a defendant, on the record, of his or her rights against self-incrimination, to a jury trial, and to confrontation, and the defendant must waive these rights, on the record, before the trial court accepts a guilty plea. (Ibid.)This same rule applies to admitting a prior conviction or prior prison term allegation. (In re Yurko (1974) 10 Cal.3d 857, 863.)
After Tahl was decided, the California Supreme court clarified in People v. Howard (1992) 1 Cal.4th 1132 (Howard), that the requirement of such advisals is a matter of the court's own supervisory powers and not a matter of federal constitutional law. (Id. at p. 1175.) Therefore, even when a trial court fails to advise a defendant of his or her constitutional rights, a guilty plea "is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances. [Citations.]" (Ibid.)
The Supreme Court explained in Mosby, supra, 33 Cal.4th at page 361, that, "After our Howard decision, an appellate court must go beyond the courtroom colloquy to assess a claim of Yurko error. [Citation.] Now, if the transcript does not reveal complete 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." (Ibid.)Thus, a defendant who admits a prior conviction without expressly waiving his or her rights to remain silent and confront adverse witnesses may nevertheless be found to have made a voluntary and intelligent waiver of those rights so long as "the totality of circumstances surrounding the admission supports such a conclusion." (Id. at p. 356; see also Howard, supra, 1 Cal.4th at p. 1178.)
The court in Mosby distinguished between two types of cases in which defendants admitted prior convictions after a jury trial on the substantive charges: (1) truly silent record cases, those in which the record showed "no express advisement or waiver of the Boykin-Tahl rights before a defendant's admission of a prior conviction" (Mosby, supra, 33 Cal.4th at p. 361); and (2) incomplete Boykin-Tahl advisement cases, those in which defendants had been advised of their right to a jury trial, but not of the other two constitutional rights. (Mosby, at pp. 362-364.)
With regard to the truly silent record cases (e.g., People v. Stills (1994) 29 Cal.App.4th 1766; People v. Campbell (1999) 76 Cal.App.4th 305; People v. Moore (1992) 8 Cal.App.4th 411; People v. Johnson (1993) 15 Cal.App.4th 169 [nearly silent]), Mosby concluded the defendants' admissions were not voluntary and knowing: "In all of the [silent record] cases . . . a jury trial on a substantive offense preceded the defendants' admissions of prior convictions. These defendants were not told on the record of their right to trial to determine the truth of a prior conviction allegation. Nor did they expressly waive their right to trial. In such cases, in which the defendant was not advised of the right to have a trial on an alleged prior conviction, [it] cannot [be inferred] 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, supra, 33 Cal.4th at p. 362.)
In the incomplete advisement cases (People v. Carroll (1996) 47 Cal.App.4th 892; People v. Howard (1994) 25 Cal.App.4th 1660; People v. Torres (1996) 43 Cal.App.4th 1073; People v. Garcia (1996) 45 Cal.App.4th 1242), the defendants had participated in jury trials and thereafter admitted priors. Their admissions were made after they were advised of the right to a jury trial, but not of the rights to confront witnesses or against self-incrimination. The Court of Appeal held that the totality of circumstances in those cases did not show the admissions were voluntary and intelligent, and the incomplete advisements required reversal. Mosby disapproved these incomplete advisement cases, as well as People v. Van Buren (2001) 93 Cal.App.4th 875. (Mosby, supra, 33 Cal.4th at p. 365, fn. 3.)
Under the totality of circumstances in Mosby, the court concluded that the "defendant voluntarily and intelligently admitted his prior conviction despite being advised of and having waived only his right to jury trial." (Mosby, supra, 33 Cal.4th at p. 365.) The defendant in Mosby "'knew he did not have to admit [the prior conviction] but could have had a jury or court trial, had just participated in a jury trial where he had confronted witnesses and remained silent, and had experience in pleading guilty in the past, namely, the very conviction that he was now admitting.'" (Ibid.)
C. Discussion
Relying on People v. Christian (2005) 125 Cal.App.4th 688, defendant argues that the record in the instant case does not demonstrate that defendant knowingly and intelligently waived her constitutional rights before admitting the prior conviction allegations. In Christian, as in the instant case there was no jury trial of the substantive charges before the defendant admitted the prior conviction allegations. But the instant case is distinguishable from Christian in that the defendant in Christian, not only admitted the prior conviction allegations, but also admitted the substantive charges. (Id. at p. 697.) In addition, in Christian there were no facts regarding the circumstances of the defendant's prior convictions, such as whether the prior convictions were by plea or trial. Therefore the court could not infer the defendant had received advisements of his constitutional rights in the prior cases. Furthermore, there was a nine-year gap between the defendant's last conviction and the present charges. The court in Christian therefore concluded it could not infer that the defendant's prior experience in the criminal justice system demonstrated his present knowledge and understanding of his rights. (Id. at p. 698.)
Here, the totality of circumstances show that defendant voluntarily and intelligently admitted the prior conviction allegations, even though right before doing so the court did not advise her of her constitutional rights to confrontation and against self-incrimination. Unlike in Christian, defendant did not admit any substantive charges, and there is ample evidence in the record demonstrating that defendant understood her rights as a result of being advised of her constitutional rights during the proceedings in the instant case and during previous criminal proceedings against her. Defendant's admissions were made after there had been a preliminary hearing on the charges and allegations. Also, throughout the instant proceedings defendant was represented by counsel, and the minute order on June 8, 2010, states that defendant was advised of her constitutional rights, waived her rights to a reading of the complaint and information, waived formal arraignment, pled not guilty to the charges, and denied the prior conviction and strike allegations. It can be reasonably inferred from the minute order that, during or before formal arraignment in 2010, the court and defense counsel advised defendant of the allegations against her and her constitutional rights.
In addition, defendant had an extensive criminal history during the past 10 years, which would have led to defendant being repeatedly informed of her constitutional rights. Such a history is relevant to a "recidivist's '"knowledge and sophistication regarding [her legal] rights."'" (Mosby, supra, 33 Cal.4th at p. 365.) Defendant's criminal history included felony and misdemeanor convictions in 2001 for theft, battery, and failing to appear in court, a misdemeanor drug conviction in 2002, and an attempted murder conviction in 2004. The record also shows defendant pled guilty to the attempted murder charge in 2004, at which time she would have been advised of her Boykin-Tahl rights. (Mosby, supra, 33 Cal.4th at p. 365.) Defendant's criminal history further included multiple parole violations, which would have likely resulted in further advisement of her rights.
There was also no significant time gap between when defendant admitted the prior conviction allegations in the instant case in January 2011, and when she was previously advised of her constitutional rights, including at her formal arraignment in June 2010. Other instances when defendant likely was informed of her rights and participated in criminal proceedings included when she was convicted of attempted murder in June 2004, and violated her parole in June 2009, March 2010, and April 2011. It can be reasonably inferred that by the time defendant admitted her prior convictions in the instant case, she was well versed in the criminal justice system and fully aware of her constitutional rights, including the rights to confrontation and against self-incrimination. We therefore conclude based on the totality of the circumstances, that defendant voluntarily and intelligently admitted the prior convictions in the instant case.
VI
DISPOSITION
The prison prior enhancement, imposed under section 667.5, subdivision (b), as to count 2, is ordered stricken. In all other respects, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect that the prison prior enhancement, imposed under section 667.5, subdivision (b), as to count 2, is stricken, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
KING
J.