Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. Super. Ct. No. 05WF1854
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Raquel M. Gonzalez and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
A jury convicted defendant Claudio Ulises Morales of possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a), and transportation of methamphetamine in violation of section 11379. (All further statutory references are to the Health and Safety Code unless otherwise specified.) Defendant admitted allegations that he had previously been convicted of possession of methamphetamine for sale and transportation of methamphetamine.
We affirm. We consider and reject each of defendant’s contentions of trial error as follows.
1. Substantial evidence supports the jury’s findings defendant exercised dominion and control over, and was otherwise aware of, methamphetamine contained in the car he was driving when he was stopped by police.
2. The prosecutor’s comment to the jury during voir dire that this case was “not a Three Strikes case” was improper, but did not constitute prejudicial error. The prosecutor did not otherwise commit prejudicial misconduct.
3. The totality of the circumstances shows defendant’s admission to the allegations of the prior convictions was voluntary and intelligent, notwithstanding the trial court’s failure to expressly advise him of his rights to confront witnesses and remain silent at a trial of those allegations.
With regard to sentencing, defendant contends the true findings as to the prior conviction allegations under section 11370.2, subdivision (b) must be stricken because section 11370.2, subdivision (b) does not apply to either possession or transportation of methamphetamine. No enhancement under any subdivision of section 11370.2 applies to the current offense of possession of methamphetamine. Thus, as conceded by the Attorney General, the enhancement as to that offense must be struck.
With regard to transportation of methamphetamine, the information and the trial court inadvertently referred to subdivision (b) of section 11370.2, instead of the applicable subdivision—subdivision (c). As discussed post, we conclude the erroneous references to subdivision (b) of section 11370.2 did not constitute prejudicial error.
We remand to the trial court to (1) strike the prior conviction enhancement allegations under section 11370.2 as they pertain to defendant’s conviction for possession of methamphetamine, and (2) correct the record to show section 11370.2, subdivision (c) as the proper statutory authority for the prior conviction enhancement allegations as to defendant’s conviction for transportation of methamphetamine.
FACTS
At 11:00 a.m. on June 25, 2005, Officer Brian Anderson of the Garden Grove Police Department was on patrol when he saw a purple four-door station wagon change lanes without signaling and cause another vehicle to decrease its speed. Anderson activated the overhead lights and siren of his marked patrol car to conduct a traffic stop of the station wagon. Defendant was driving the station wagon and was accompanied by Rebecca Howcroft who was sitting in the front passenger seat.
After defendant was stopped, Anderson asked defendant for his driver’s license, registration, and proof of insurance. Defendant was the registered owner of the station wagon, but he was unable to produce a driver’s license.
Anderson asked defendant to step out of the station wagon, handcuffed him, and placed him in the patrol car. As defendant was stepping out of the station wagon, a second police officer arrived and “automatically went to the passenger side” of the station wagon. Anderson obtained defendant’s permission to search the station wagon. Anderson returned to the station wagon and asked Howcroft to exit the station wagon. A records check confirmed that Howcroft did not have “warrants or wants.” Howcroft consented to a search of the purse she had with her. After Anderson searched the purse and found that it contained nothing unlawful, he released Howcroft from the scene. Howcroft took the purse with her.
During the search of the station wagon, Anderson found a blue backpack located on the backseat behind the driver’s side seat. The blue backpack contained undescribed paperwork, men’s clothing, and small tools similar to ones Anderson had found in the back of the station wagon. Also inside the blue backpack was a black nylon carrier containing a glass pipe of the type used to smoke methamphetamine, 11 baggies containing methamphetamine, and 57 empty baggies. The 11 baggies containing methamphetamine weighed a total of 4.2 grams, and only seven of the baggies contained a useable amount of methamphetamine.
The parties stipulated that defendant, “if aware of the white crystal-like substance” found in the baggies, “would recognize it to be methamphetamine and knows it to be a controlled substance.”
Anderson asked defendant “[i]f everything inside the vehicle belonged to him.” Defendant said, “everything but the purse.” Anderson asked if defendant had anything illegal inside the station wagon, and defendant said that he did not. Anderson informed defendant that he had found methamphetamine in the station wagon, as defendant was being transported to the jail.
Defendant testified at trial that the blue backpack was not his and that he did not place it in the station wagon. He testified that he saw Howcroft put a bag in the backseat of the station wagon, but he did not know whether it was the backpack. Defendant further testified he first learned that methamphetamine had been found in his car when the judge told him in court.
Anderson testified that during a postarrest interview that took place between 30 and 45 minutes after he had initially stopped defendant, defendant stated that “he didn’t have any dope, that the dope wasn’t his, that he’s had it in the past but this wasn’t his.”
PROCEDURAL BACKGROUND
Defendant was charged in an information with (1) possession for sale of a controlled substance (methamphetamine) in violation of section 11378 (count 1), and (2) sale or transportation of a controlled substance (methamphetamine) in violation of section 11379, subdivision (a) (count 2).
The information further alleged as to counts 1 and 2 that pursuant to Penal Code section 1203.07, subdivision (a)(11), and section 11370.2, subdivision (b), defendant was previously convicted of violating sections 11378 and 11379 on May 9, 2002.
Before trial, the court granted defendant’s motion to bifurcate trial on the prior conviction allegations. While the jury was deliberating on the charged offenses, defendant was advised of, and waived, the right to a jury trial as to the prior conviction allegations; he admitted those allegations. The jury found defendant guilty of possession of a controlled substance, a lesser included offense within the offense charged in count 1, and of transportation of a controlled substance as charged in count 2.
Defendant was sentenced to a total of six years in state prison. The trial court imposed the middle term of 3 years on count 2, and a consecutive three-year term as an enhancement for defendant’s 2002 conviction for transportation of a controlled substance under section 11370.2. The court stayed sentencing on count 1 under Penal Code section 654, and struck the other prior conviction allegations for sentencing purposes only.
DISCUSSION
I.
Substantial Evidence Supports the Judgment.
Defendant contends substantial evidence does not support the finding that he was aware of the presence of methamphetamine inside the station wagon—a necessary element for both possession and transportation of methamphetamine. Defendant also contends substantial evidence does not support his conviction for possession of methamphetamine because there was not sufficient evidence to show he exercised dominion and control over the methamphetamine.
A.
Standard of Review
In reviewing a claim of insufficiency of evidence in a criminal case, “[t]he standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below 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 find the defendant guilty beyond a reasonable doubt. [Citations.] ‘“[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.”’ [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 66.)
B.
Substantial Evidence Shows Defendant Was Aware of the Presence of Methamphetamine and Exercised Control over or the Right to Control the Methamphetamine.
Defendant’s knowledge of the presence of methamphetamine is an essential element for both the offense of possession of methamphetamine and the offense of transportation of methamphetamine. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242 [knowledge of presence is an element of possession of controlled substance offense]; People v. LaCross (2001) 91 Cal.App.4th 182, 185 [knowledge of presence is an element of transportation of controlled substance].) This element may be established circumstantially. (People v. Palaschak, supra, 9 Cal.4th at p. 1242.) That defendant exercised control over or the right to control an amount of methamphetamine is an additional necessary element of the crime of possession of methamphetamine.
Substantial evidence supports the jury’s finding that defendant knew of the presence of methamphetamine inside his car, as follows: (1) the methamphetamine was found in a black nylon carrier inside a blue backpack located behind the driver’s seat of defendant’s station wagon; (2) defendant had been driving the car when Anderson stopped him; (3) in addition to the black nylon carrier, the blue backpack contained what appeared to be men’s clothing and small tools similar to the ones found in the back of car; (4) defendant admitted that the tools in the back of the car were his; (5) Anderson asked defendant whether there was anything inside the vehicle that did not belong to him and defendant answered, “[t]he purse inside the front seat, on the front passenger seat”; and (6) Howcroft had a purse with her in the front seat at the time Anderson stopped defendant’s car.
The record also shows defendant exercised control over or the right to control the methamphetamine, as the evidence of the location of the methamphetamine—behind the driver’s seat of defendant’s station wagon and inside a backpack containing men’s clothes and tools similar to those found in the back of the station wagon—supports the finding the methamphetamine belonged to defendant.
Thus, substantial evidence supports defendant’s convictions.
II.
Defendant Was Not Prejudiced by Any Prosecutorial Misconduct.
Defendant contends the prosecutor improperly (1) told the jury during voir dire, “[t]his is not a Three Strikes case”; (2) attempted to elicit testimony about defendant’s outstanding bail warrants during his cross-examination of defendant; and (3) “twice argued that the knowledge element of the offenses was established because of [defendant]’s prior conviction for transporting methamphetamine.” He contends the prosecutor’s statements, individually and collectively, constitute prejudicial prosecutorial misconduct.
A.
Standard of Review
“‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “‘A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so “egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’”’ [Citation.]” (People v. Navarette (2003) 30 Cal.4th 458, 506.)
The California Supreme Court has stated that “the term prosecutorial ‘misconduct’ is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.” (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
“‘“As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.”’” (People v. Ayala (2000) 23 Cal.4th 225, 284.) “[I]n the absence of prejudice to the fairness of a trial, prosecutor misconduct will not trigger reversal.” (People v. Bolton (1979) 23 Cal.3d 208, 214.)
B.
The Prosecutor’s Comment That the Case Did Not Implicate the Three Strikes Law
During voir dire, the prosecutor stated, “[a]nd one final thing that I want to leave with you. You must not consider punishment. As jurors, you cannot consider what will happen if you find the person guilty. Punishment cannot enter into your deliberations. That’s something that’s left to the sole discretion of the court, and some people have trouble with punishment. You hear a lot about it in the press. We had something on the ballot about the Three Strikes. This is not a Three Strikes case. There are no strikes involved in this case.” Defendant’s counsel objected to the prosecutor’s comment, and the trial court sustained the objection. The prosecutor then repeated, “[y]ou cannot consider punishment. [¶] Can everybody promise to do that, not consider punishment and just look at the facts?”
“A defendant’s possible punishment is not a proper matter for jury consideration.” (People v. Holt (1984) 37 Cal.3d 436, 458.) The prosecutor should not have informed the jury that the instant case did not implicate the Three Strikes law. However, the record does not show that the prosecutor’s isolated comment could be construed as an egregious pattern of conduct that infected the trial with such unfairness that defendant was denied due process. (People v. Navarette, supra, 30 Cal.4th at p. 506.) Even if the record did show the prosecutor’s comment constituted a deceptive or reprehensible method of attempting to persuade the jury, which it does not, the record does not support “‘“a reasonable likelihood that the jury construed or applied”’” the prosecutor’s reference to defendant’s possible punishment “‘“in an objectionable fashion.”’” (People v. Ayala, supra, 23 Cal.4th at p. 284.)
As discussed ante, defendant’s counsel immediately objected to the prosecutor’s Three Strikes comment and the trial court sustained the objection. The prosecutor repeated to the jury his earlier statement that it could not consider defendant’s possible punishment in its deliberations. Later, the trial court instructed the jury, “[b]oth sides here have a right to expect from you [that] you will conscientiously consider and weigh the evidence, apply the law and then reach a just verdict in that way regardless of its consequences.”
Thus, the record does not show defendant was prejudiced by the prosecutor’s comment.
C.
The Record Does Not Show the Prosecutor Attempted to Improperly Elicit Excluded Evidence, or That Defendant Was Prejudiced by Any Such Attempt.
Before trial, defendant moved to exclude evidence he had two “no bail warrants” on June 25, 2005, and he was arrested by Anderson that day after the traffic stop because of those warrants. The trial court concluded that the existence of the warrants had “pretty negligible” probative value and ordered evidence of the warrants excluded.
Defendant contends that during the prosecutor’s cross-examination of him, the prosecutor improperly attempted to elicit inadmissible evidence of the existence of the no-bail warrants. Defendant was cross-examined by the prosecutor as follows:
“Q. By [the prosecutor]: Do you recall when speaking to Officer Anderson at any time on June 25th, 2005, denying that the dope in the car was yours?
“A. I didn’t know that such drugs were there.
“Q. When did you find out that there were drugs in the car?
“A. I really didn’t know until I went to court and the judge told me.
“Q. You must have been really surprised?
“[Defense counsel]: Objection. Irrelevant. [¶] Ask to approach?
“The Court: Well, it’s vague. So sustained on those grounds. Rephrase, if you want to.
“[Defense counsel]: Your honor, may be approach? I’d like this on the record. I’d like a side bar.
The following discussion was held outside of the presence of the jury.
“[Defense counsel]: I am going to object to this line of questioning. He has asked it several times and he’s alluding how could you be arrested and not ask why you were arrested when he knows why he is arrested. It’s for these two no bail warrants that he was aware of and so by his continuing to intimate how could you not know or not ask why you’re being arrested, it’s going to come out somehow or I am afraid that it’s going there, the no bail warrants, ‘that’s why I was being arrested, that’s why I didn’t say anything,’ to continually push that is where we’re going.
“The Court: Well, I previously ruled and still rule that the no bail warrants don’t come in but no, I didn’t see it as going there. Either side should feel free to probe the circumstances under which he was either asked or not asked about the drugs, confronted or not confronted with the drugs, when that occurred and what, if anything, he responded and why or why not those topics are fair game.
“[Defense counsel]: I think he’s asked that and the last question ‘weren’t you surprised when the judge’ is completely inappropriate and it’s just asking to elicit a response from him on the ruling that the court already said he can’t get into. ‘Weren’t you surprised,’ that’s totally inappropriate. That’s not a question—that’s trying to get into an area that the court has ruled he can’t get into.
“The Court: Well, actually, I sustained the objection to that question on whether or not he was surprised, I am not too sure how you intended to pursue it any further but all I can do is reiterate that either side should feel free to probe the area of inquiry which is legitimate which is when, if ever, he became aware of the accusation involving drugs and what, if anything, he ever said before, during or after that about the drugs and whether they were his and whether that was in response to a question or whatever. Those are all legitimate.
“[Defense counsel]: Okay.
“The Court: Anything else?
“[Defense counsel]: No.”
The prosecutor then informed the court he had no further questions for defendant.
The record does not show the prosecutor questioned defendant in order to elicit testimony that defendant had been arrested as a result of his two no-bail warrants. The record shows the prosecutor questioned defendant about the moment in time he first learned that the police had found methamphetamine in his car. Even if the prosecutor had intended to elicit testimony about defendant’s no-bail warrants in violation of the court’s ruling excluding such evidence, defendant’s counsel objected to the prosecutor’s question allegedly intended to elicit such testimony, and the objection was sustained by the trial court before defendant answered the question.
Furthermore, the jury was also instructed by the trial court, “[i]f an objection was sustained to a question, don’t guess what the answer might have been or speculate as to the reason for the objection. Don’t assume the truth of any insinuation suggested by a question of a witness because the question isn’t evidence. It should be considered only as it helps you understand the answer.” (See People v. Pinholster (1992) 1 Cal.4th 865, 943 [prosecutor’s attempt to intentionally elicit inadmissible testimony not prejudicial error because defense objection was sustained, trial court directed no further references to improper subject matter, witness did not answer question, and jury was instructed to disregard question].)
D.
The Prosecutor’s References to Defendant’s Prior Conviction During Closing Argument Did Not Constitute Prejudicial Misconduct.
Before trial, defendant stipulated that he would recognize methamphetamine and understand its nature as a controlled substance. Defendant asserts he entered into the stipulation establishing that he knew of the nature of methamphetamine as a controlled substance to avoid the use of his prior convictions to prove such knowledge under Evidence Code section 1101, subdivision (b). In light of the parties’ stipulation, the court excluded evidence of defendant’s prior convictions to prove that element of the charged offenses under Evidence Code section 1101, subdivision (b). The court further ruled, however, that the prosecution would be allowed to introduce evidence of certain of defendant’s several prior felony convictions for impeachment purposes, each of which constituted a recent crime of moral turpitude, in the event defendant testified at trial.
At trial, defendant testified that he had been convicted of four felony charges in 2002. He further testified he had been convicted of one count of failing to appear in court, two counts of receiving stolen property, and one count of transporting a controlled substance.
Defendant contends that, notwithstanding the parties’ stipulation on this point, at the conclusion of trial, “the prosecutor twice argued that the knowledge element of the offenses was established because of [defendant]’s prior conviction for transporting methamphetamine.” Defendant further contends, “[t]he prosecutor’s argument was also an invitation for the jury to improperly use [defendant]’s prior conviction as propensity evidence” in violation of Evidence Code section 1101, subdivision (a).
During closing argument, in reviewing the elements of the offense of possession of methamphetamine for sale, the prosecutor argued: “Three, the person knew of its nature as a controlled substance. Here we had some evidence that about three years ago this same defendant was actually convicted for transporting methamphetamine. He knows what methamphetamine is. He’s moved it before. He, himself, has indicated that he’s used it before. In fact, part of the stipulation is if he were aware of this crystal-like substance, he would recognize it to be methamphetamine and know it to be a controlled substance. [¶] So essentially we had a stipulation. Even if he hadn’t testified, the defense is acknowledging the man knows what meth is. Obviously, they’re going to be arguing element number 2, did he know it was there, but he knows what it is.”
Later, while addressing the elements of the offense of transportation of methamphetamine, the prosecutor stated, “[t]here are only two elements to this. We know he is transporting it. Did he know of its presence? We know that he knows the nature of methamphetamine. He’s transported it before and he’s used it before.”
Defendant’s counsel neither objected to the prosecutor’s argument nor requested the jury be admonished with regard to any such argument. Thus, defendant has waived his argument of prosecutorial misconduct on this issue. (People v. Demetrulias (2006) 39 Cal.4th 1, 30 [defendant forfeited claims of prosecutorial misconduct by failing to object at trial and seek admonition].)
Even if defendant had not waived this issue, and assuming the prosecutor’s reference to the prior conviction during closing argument was improper, it is not reasonably probable that a result more favorable to defendant would have occurred absent the misconduct. Before the prosecutor’s closing argument, defendant had already stipulated before the jury that he would recognize methamphetamine and was aware it was a controlled substance. Thus, the prosecutor’s argument that this element of the charged offenses was also established, in part, by defendant’s prior conviction for transportation of methamphetamine is superfluous at best since defendant’s stipulation had already conceded that point. The prosecutor’s argument did not invite the jury to consider defendant’s prior conviction for transportation of methamphetamine as evidence showing defendant had a propensity to commit similar crimes.
Furthermore, the prosecutor informed the jury that evidence of defendant’s prior convictions was relevant to his credibility in the instant case, and the trial court instructed the jury that “[t]he fact that a witness has been convicted of a felony, if this is a fact, may be considered by you only for the purpose of determining the believability of the witness.” We presume the jury followed that instruction. (People v. Boyette (2002) 29 Cal.4th 381, 436.)
We reject defendant’s argument that the cumulative effect of any prosecutorial misconduct alleged in this case rises to the level of reversible error.
III.
The Totality of the Circumstances Shows Defendant’s Admission of the Prior Conviction Allegations Was Made Voluntarily and Intelligently.
Defendant contends the totality of the circumstances show that his admission to the prior conviction allegations was not voluntarily and intelligently made after the trial court provided him an incomplete advisement of his rights to confront witnesses and remain silent during a jury trial of the prior conviction allegations. We disagree.
Before accepting a criminal defendant’s admission of a prior conviction, a trial court “must advise the defendant and obtain waivers of (1) the right to a trial to determine the fact of the prior conviction, (2) the right to remain silent, and (3) the right to confront adverse witnesses.” (People v. Mosby (2004) 33 Cal.4th 353, 356.) “Proper advisement and waivers of these rights in the record establish a defendant’s voluntary and intelligent admission of the prior conviction.” (Ibid.) A trial court’s failure to provide the defendant with the requisite admonitions does not require per se reversal. (Id. at p. 361.) “[I]f 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.; People v. Hinton (2006) 37 Cal.4th 839, 875, fn. 12 [“in discussing the failure to provide specific admonitions of the rights surrendered by the admission of a prior-prison-term allegation, the validity of the admission depends not on express admonitions and waivers but on whether the admission was ‘voluntary and intelligent under the totality of the circumstances’”].)
In People v. Mosby, supra, 33 Cal.4th 353, the California Supreme Court addressed the following issue: “When, immediately after a jury verdict of guilty, a defendant admits a prior conviction after being advised of and waiving only the right to trial, can that admission be voluntary and intelligent even though the defendant was not told of, and thus did not expressly waive, the concomitant rights to remain silent and to confront adverse witnesses?” (Id. at p. 356.) The Supreme Court concluded that the answer to this question is “‘yes,’ if the totality of the circumstances surrounding the admission supports such a conclusion.” (Ibid.)
In concluding the defendant voluntarily and intelligently admitted his prior conviction despite the incomplete advisement by the trial court, the Mosby court explained that the defendant had admitted the prior conviction immediately after a jury found him guilty of the substantive offense following a trial in which he was represented by counsel and did not testify. (People v. Mosby, supra, 33 Cal.4th at p. 364.) “Thus, he not only would have known of, but had just exercised, his right to remain silent at trial, forcing the prosecution to prove he had sold cocaine. And, because he had, through counsel, confronted witnesses at that immediately concluded trial, he would have understood that at a trial he had the right of confrontation.” (Ibid.)
The court added, “[a] review of the entire record also sheds light on defendant’s understanding. For instance, ‘a defendant’s prior experience with the criminal justice system’ is, as the United States Supreme Court has concluded, ‘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.”’ [Fn. omitted.] [Citations.] Here defendant’s prior conviction was based on a plea of guilty, at which he would have received Boykin-Tahl advisements. As the Court of Appeal here concluded: ‘[H]e 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.’” (People v. Mosby, supra, 33 Cal.4th at p. 365.)
In this case, while the jury was deliberating on the substantive offenses, the trial court inquired, “if defendant want[ed] a jury trial or to waive or to have a court trial on the allegation of the priors.” The following colloquy ensued.
“[Defense counsel]: I have discussed that with [defendant] and he is prepared to admit the priors as pled in the information.
“The Court: All right, sir, it’s alleged that you have a couple of prior convictions. It looks like they’re both out of this same case in 2002 that we have file here on which alleges a couple of prior convictions of possession for sale and transportation, the section that they’re alleged under means that if you were to be convicted of any of the felony offenses here and these priors were to be found to be true, whatever the sentence would be for the felonies that you’re convicted of could be enhanced by up to three years for each of the two prior convictions.
“In other words, total of the two could add six years to your term. Of course, there is no consequence if the[] jury doesn’t convict you of the offenses but that’s the potential exposure that you would have for these two priors.
“You actually have a right, if you wanted, to a trial on the allegation of the priors. The prosecutor would have to prove that they’re true, that they’re your priors. Normally, it’s not a real long trial because the files are right here but the jury would decide whether you had proof and whether the proof was sufficient that they were your prior convictions.
“And are you willing at this point to waive and give up the right to a jury determination whether those priors are true and now that your lawyer has seen the files and seen the proof to instead just admit that they are true knowing that it could add up to six years to your term?”
“The defendant: Okay, yes.
“The Court: You understand then what would happen is as soon as we finish with the trial, we’d just let the jurors go and then you would—if they convict you of something, you would have already admitted the priors and we would just go ahead from there and you have had a chance to talk this over with your lawyer and that’s all right with you, that’s what you want to do?
“The defendant: Yes.
“The Court: Counsel join?
“[Defense counsel]: Yes.
“The Court: You did talk it over with him, he understands, in your opinion, what we’re talking about?
“[Defense counsel]: Yes.”
The reporter’s transcript shows that defendant was advised of his right to a jury trial on the prior conviction allegations, and that he voluntarily and intelligently waived that right. The reporter’s transcript does not show that the trial court expressly advised defendant of the concomitant rights to confront witnesses and to remain silent during such a trial. As directed by People v. Mosby, supra, 33 Cal.4th 353, we 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.” (Id. at p. 361.)
At the time defendant admitted the prior conviction allegations, he had just undergone a jury trial on the charged offenses, during which he, through his attorney, confronted witnesses. Having just exercised his right to confront witnesses during the jury trial, defendant would have understood that he could have exercised that right at a trial on the prior conviction allegations.
Unlike the defendant in People v. Mosby, supra, 33 Cal.4th 353, defendant did testify during the jury trial of the charged offenses, and thus did not at that time exercise his right to remain silent at trial. The record shows, however, that in 2002, roughly three years before he admitted the prior conviction allegations, defendant pleaded guilty to the offenses underlying the prior conviction allegations. We reasonably presume, as the Supreme Court did in People v. Mosby, that defendant received a full advisement of his rights to confront witnesses and remain silent during a jury trial of those offenses. Thus, the record shows defendant’s relatively recent prior experience with the criminal justice system shows he voluntarily and intelligently waived his constitutional rights to confront witnesses and remain silent in the instant case, despite the trial court’s failure to expressly advise him of those rights.
This case is distinguishable from People v. Christian (2005) 125 Cal.App.4th 688, in which the appellate court concluded that an incomplete advisement constituted reversible error. In that case, the defendant pleaded guilty to the charged offenses and admitted prior conviction allegations. Unlike the instant case, the defendant “had not just participated in a trial at which he would have exercised his right to confront witnesses, nor had he just taken advantage of nor waived []his right against self-incrimination. Appellant was not forgoing a relatively simply trial limited to the issue of the priors. He was forgoing a trial on the substantive charges as well as on the prior allegations.” (Id. at p. 697.) The court further noted that “unlike the defendant in Mosby, we have no facts with regard to the circumstances of appellant’s prior convictions. We do not know if they were by plea or trial and we cannot infer that he would have received advisements in his prior cases. There is a nine-year gap between appellant’s last conviction and the present charges. Given the lack of information regarding appellant’s prior convictions, the significant gap, and the lack of other facts demonstrating an awareness and comprehension of his constitutional rights, we cannot infer that appellant’s prior experience in the criminal justice system demonstrated his present knowledge and understanding of his rights.” (Id. at pp. 697-698.)
We conclude the totality of the circumstances presented in the record shows defendant voluntarily and intelligently admitted his prior conviction allegations in this case.
IV.
Sentencing Issues
Defendant contends the true findings as to the prior conviction allegations under section 11370.2, subdivision (b) must be stricken because section 11370.2, subdivision (b) does not apply to defendant’s convictions for possession of methamphetamine in violation of section 11377, subdivision (a) and transportation of methamphetamine in violation of section 11379.
The information alleged as to counts 1 and 2 that pursuant to section 11370.2, subdivision (b), defendant was convicted in 2002 of felony violations of sections 11378 and 11379. Section 11370.2, subdivision (b) provides: “Any person convicted of a violation of, or of a conspiracy to violate, Section 11378.5, 11379.5, 11379.6, 11380.5, or 11383 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, . . . 11378, . . . [or] 11379 . . ., whether or not the prior conviction resulted in a term of imprisonment.”
With regard to count 1, the jury found defendant guilty of the lesser included offense of possession of methamphetamine in violation of section 11377, subdivision (a). A violation of section 11377 does not qualify for enhancement under section 11370.2, subdivision (b), or any other subdivision of section 11370.2. Therefore, and as conceded by the Attorney General, the three-year enhancement for count 1 (which was stricken by the trial court for purposes of sentencing only) must be stricken for all purposes.
The jury also found defendant guilty of transporting methamphetamine in violation of section 11379 as charged in count 2 of the information, for which the trial court imposed the three-year enhancement. The information, however, erroneously alleged section 11370.2, subdivision (b) as the applicable statutory basis for the enhancement. Section 11370.2, subdivision (b) does not apply to convictions for violating section 11379. Subdivision (c) of section 11370.2 is the applicable subdivision. Section 11370.2, subdivision (c) provides: “Any person convicted of a violation of, or of a conspiracy to violate, Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment.” (Italics added.)
At the sentencing hearing, the trial court reiterated the information’s erroneous reference to section 11370.2, subdivision (b), stating “[t]he court enhances that sentence by three years consecutive pursuant to the appropriate section which is [section] 11370.2[, subdivision ](b).”
The Attorney General contends the information’s and the trial court’s incorrect references to subdivision (b) instead of subdivision (c) of section 11370.2 constitute mere clerical error. The Attorney General further contends the information “set forth the current and prior qualifying offenses and accurately conveyed the length of the enhancement term being sought,” thereby providing defendant adequate notice of, and an ample opportunity to prepare a defense to, a three-year sentence enhancement under section 11370.2. We agree.
Penal Code section 960 provides, “[n]o accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect of imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits.”
In People v. Bergman (1984) 154 Cal.App.3d 30, 32, the defendant was found guilty of murder, rape, forced oral copulation, and kidnapping. The information alleged the defendant personally used a firearm within the meaning of former Penal Code section 12022.5, which provided for an enhancement term of two years. (People v. Bergman, supra, 154 Cal.App.3d at p. 37, fn. 13.) The sentencing court imposed two enhancement terms under former Penal Code section 12022.3, which provided for a three-year enhancement term for gun use during certain sex crimes. (People v. Bergman, supra, 154 Cal.App.3dat p. 37.) On appeal, the appellate court held, “[t]he effect of designating section 12022.5 in the information and using the charging language which was employed, was to give appellant notice that additional two-year enhancements would be sought under that section. He was given no notice up to the time of sentence that any three-year enhancement [under former Penal Code section 12022.3] was sought.” (Id. at p. 38.)
In People v. Thomas (1987) 43 Cal.3d 818, the California Supreme Court disapproved of People v. Bergman, stating, “[t]he flaw in Bergman’s analysis is the court’s failure to recognize the language of the pleading itself—irrespective of the statutory specification—should have alerted the defendant he faced the increased enhancement term. Thus, it is not true the defendant in Bergman was given ‘no notice’ since the wording of the information shows he must have been cognizant he was called on to refute an allegation he used a firearm during the commission of the charged felonies. Since we have seen it is the language of the accusatory pleading which is controlling and not the specification of the statute by number [citation], the proper inquiry in Bergman should have been whether the defendant was misled to his prejudice by the notation in the information that he was charged with an enhancement under section 12022.5 rather than section 12022.3. Since . . . it did not appear the defendant in Bergman would have prepared his defense any differently had he been subjectively aware a three-year term could be imposed under section 12022.3, he suffered no prejudice and reversal on this ground was unwarranted. Bergman is therefore disapproved to the extent it is inconsistent with our opinion.” (Id. at p. 831.)
Here, the allegations of the information correctly identified the current and prior qualifying offenses. Both subdivisions (b) and (c) of section 11370.2 provide for a 3-year enhancement term. Defendant does not contend that he would have prepared his defense any differently had the information and the trial court correctly referred to subdivision (c) instead of subdivision (b) of section 11370.2. As in People v. Thomas, supra, 43 Cal.3d 818, 831, this typographical error caused defendant “no prejudice and reversal on this ground [i]s unwarranted.” We remand to the trial court to correct this typographical error in the court record.
DISPOSITION
The judgment is affirmed. We remand to the trial court to (1) strike the prior conviction enhancement allegation under Health and Safety Code section 11370.2 as it pertains to defendant’s conviction of possession of methamphetamine, a lesser included offense of the charged offense of possession for sale of methamphetamine; and (2) correct the court record and issue a new abstract of judgment reflecting section 11370.2, subdivision (c) as the statutory basis for defendant’s three-year enhancement
term. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: SILLS, P. J., IKOLA, J.