Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Tulare County, No. VCF166946, Joseph A. Kalashian, Judge.
William Malloy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Hill, Acting P.J., Kane, J., and Poochigian, J.
Appellant, Steven Victor Palomino, pled no contest to robbery (Pen. Code, § 211), and receiving stolen property (§ 496, subd. (a)). Palomino also admitted a serious felony enhancement (§ 667, subd. (a)), three prior prison term enhancements (§ 667.5, subd. (b)), and allegations that he had a prior conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)).
All further statutory references are to the Penal Code, unless otherwise indicated.
On October 30, 2007, the court sentenced Palomino to an aggregate term of 15 years: the aggravated term of five years, doubled to ten years because of Palomino’s strike conviction; a five-year serious felony enhancement; and a concurrent six-year term on Palomino’s receiving stolen property conviction, the upper term of three years, doubled to six years because of Palomino’s strike conviction.
On appeal, Palomino contends the judgment must be reversed because the court did not adequately advise him of his Boykin/Tahl rights. We will affirm.
FACTS
On June 10, 2006, Palomino and William Lopez used their car to cut off a car in which their employer, A.H., was a passenger. Lopez got out of the car and began arguing with A.H. Lopez then dragged A.H. out of the car and began punching him. After Palomino joined in, Lopez took A.H.’s wallet and he and Palomino got in their car and drove off.
On July 9, 2007, the court took Lopez’s and Palomino’s plea. After explaining to Palomino the consequences of his plea, the court advised Palomino of his constitutional rights as follows:
“THE COURT: And by entering those pleas, you’re going to be giving up your right to a jury trial, your right to testify in your own behalf, but nobody can force you to do that, your right to subpoena witnesses into court at no expense to you, and the right to cross-examine and confront any witnesses that are called to testify against you.
“Do you understand those rights?
“[PALOMINO]: Yes sir.”
DISCUSSION
Palomino contends the court failed to advise him of his right to remain silent and to take an appropriate waiver of this right. He relies on People v. Christian (2005) 125 Cal.App.4th 688, to contend that under the totality of the circumstances, the failure to advise him of his right to remain silent and to take a waiver of this right rendered his plea involuntary because the record fails to show that he understood he had the right to remain silent. We will reject these contentions.
“Under In re Tahl (1969) 1 Cal.3d 122 … (Tahl), our Supreme Court, following Boykin v. Alabama (1969) 395 U.S. 238 … (Boykin), held that when a voluntary guilty plea is entered, the defendant must expressly be informed of and waive three specific constitutional rights[, ] [i.e., his right to a jury trial, his right to confrontation, and his right against self incrimination]. Originally, a trial court’s failure to give the required advisements and obtain a waiver was held to require automatic reversal of the conviction. [Citations.] Many years after Tahl, however, in People v. Howard (1992) 1 Cal.4th 1132 …, the court relaxed this ruling, holding that when a defendant is not given the Boykin-Tahl advisements, reversal is required only if the record does not demonstrate that the plea was knowingly and intelligently entered. [Citation.] ‘In replacing the old rule, the focus was shifted from whether the defendant received express rights advisements, and expressly waived them, to whether the defendant’s admission was intelligent and voluntary because it was given with an understanding of the rights waived.... 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.’ [Citation.]” (People v. Bradford (2008) 169 Cal.App.4th 843, 853-854.)
Here, the court clearly advised appellant of his right to a jury trial and his right to confront witnesses. Further, although the court did not use the terms the “right against self incrimination” or the “right to remain silent, ” the court did advise Palomino that he had the “right to testify in [his] own behalf, but nobody [could] force [him] to do that.”Although the court could have described Palomino’s right against self incrimination more accurately, by advising Palomino that no one could force him to testify, the trial court in effect advised him of his right to remain silent. Additionally, Palomino had a substantial criminal record consisting of numerous juvenile adjudications, three prior felony convictions, and one misdemeanor conviction. Although these adjudications and convictions occurred from 1985 through September 2005, they show that Palomino was very familiar with the criminal process and likely was aware of his constitutional rights, including his right to remain silent. (Cf. People v. Mosby (2004) 33 Cal.4th 353, 357, 365 [court relied on defendant’s prior plea six years earlier to conviction underlying a prior conviction allegation in the case at bench to conclude that defendant understood his constitutional rights with respect to admission of the prior conviction allegation].)
People v. Christian, supra, 125 Cal.App.4th 688, is inapposite. In Christian, the court did not admonish the defendant prior to taking his plea of his rights to confrontation and against self incrimination. (Id. at p. 693.) Here, as noted above, prior to taking Palomino’s plea, the court advised him of the three requisite constitutional rights, although it inartfully described Palomino’s right to remain silent. Thus, we conclude that under the totality of the circumstances, Palomino entered his plea knowingly and intelligently.
DISPOSITION
The judgment is affirmed.