Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Charles F. Palmer, Judge, Los Angeles County Super. Ct. No. BA304408-02
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Umeka Payne appeals from the judgment entered following her conviction by a jury on one count of possession for sale of cocaine base (Health & Saf. Code, § 11351.5) and her admission in a bifurcated proceeding of a prior conviction for the same offense (§ 11370.2, subd. (a)). Payne contends the trial court failed to advise her of her constitutional rights to a trial by jury, to remain silent and to confront the witnesses against her before taking her admission of the prior conviction. She also contends, and the People agree, the minute order reflecting the sentence and abstract of judgment fail to include her earned presentence custody credits. We modify the judgment to accurately reflect Payne’s presentence custody credit and, as modified, affirm the judgment.
Statutory references are to the Health & Safety Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Payne was arrested on June 14, 2006 after a police narcotics enforcement detail observed another woman repeatedly ferry money to Payne as she sat in a car and retrieve plastic bags from Payne’s car that she used in a series of suspicious transactions. When the police approached to arrest Payne’s confederate, she dashed to the car and threw money into the front seat where Payne sat. Payne was found with a bag of rock cocaine in her lap and several bags near her.
Payne was charged by information with possession of cocaine base for sale with a special allegation that she had suffered a prior conviction for the identical crime three months earlier. The morning of trial, while Payne remained in lockup, her counsel and the prosecutor discussed a proposed plea agreement in the presence of the trial judge. In response to the prosecutor’s offer of a prison term of three years (compared to a maximum potential sentence of nine years four months), Payne’s counsel urged the court to consider a suspended sentence in light of psychological tests performed in connection with Payne’s prior offense, which had assessed her as mildly mentally retarded. After stating it would not consider a suspended sentence because of the previous conviction, the court continued, “I guess we should prepare for the trial. Is there -- first of all, I assume that the defendant would want to bifurcate the prior?” Payne’s counsel answered, “Yes. We’ll do a bench trial or something like that. I mean, if they come back with a conviction, we will just do a bench trial.” After discussing additional trial logistics, Payne was brought into the courtroom to record her response to the proposed plea agreement. The prosecutor restated the plea offer; Payne and her counsel conferred; and her counsel stated, “She’s aware of the offer and it’s going to be rejected.” The court then inquired, “Do the parties stipulate that we will bifurcate the trial of the prior?” Both counsel responded, “Yes.” The matter proceeded to trial.
Payne did not testify on her own behalf. At the close of evidence, Payne’s counsel advised the court, “I think I talked to Miss Payne about the bifurcated issue, we are not going to ask for a jury trial. If we need to try the priors, it would be before the court only.” The court then addressed Payne, “Is that correct, Miss Payne?” She answered, “Yes.” The court thereafter instructed the jury, including the standard instruction, “‘A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.’” (See Judicial Council of Cal. Crim. Jury Instns. (2007-2008) CALCRIM No. 355.)
The jury returned a guilty verdict on the single count of possession for sale of cocaine base. Once the jury was excused, the court asked defense counsel if Payne was willing to stipulate to the prior offense. Her counsel answered, “I haven’t looked at the court file. Is there . . . a certified sentencing transcript or anything? I’d like to verify whether or not everything is true and complete before we stipulate.” In response the court handed defense counsel the court file from Payne’s previous case, and the prosecutor provided him with a certified copy of Payne’s arrest record. The file also contained a Tahl waiver, presumably executed by Payne, that defense counsel reviewed. Immediately after reviewing the Tahl waiver found in the file, Payne’s counsel stated Payne would be “willing to stipulate and make that the [prior] conviction . . . is true.” The prosecutor then asked Payne, “Do you admit that on March 23rd, 2006, in case YA064328, you were convicted of a violation of Health and Safety Code section 11351.5, a felony, in Los Angeles Superior Court?” Payne answered, “Yes,” and her counsel joined in the admission.
This document, which was contained in the case file for Payne’s prior conviction, does not appear in the record before us. Nonetheless, we are familiar with the contents of a “Tahl waiver” or “Boykin/Tahl waiver,” as it is also known (see Boykin v. Alabama (1969) 395 U.S. 238 [89 S.Ct. 1709, 23 L.Ed.2d 274]; In re Tahl (1969) 1 Cal.3d 122, abrogation recognized in People v. Howard (1992) 1 Cal.4th 1132, 1174-1180.) A Tahl waiver enumerates the consequences of a defendant’s plea or admission and includes written waivers of his or her constitutional rights to a jury trial, to remain silent and to confront witnesses. (See In re Yurko (1974) 10 Cal.3d 857, 863 [“Boykin and Tahl require, before a court accepts an accused’s admission that he has suffered prior felony convictions, express and specific admonitions as to the constitutional rights waived by an admission. The accused must be told that an admission of the truth of an allegation of prior convictions waives, as to the finding that he had indeed suffered such convictions, the same constitutional rights waived as to a finding of guilt in case of a guilty plea”].)
At a subsequent hearing Payne was sentenced to an aggregate state prison term of seven years: the middle term of four years on the possession for sale charge plus three years for the prior conviction enhancement.
CONTENTIONS
Payne contends the trial court committed error under In re Yurko (1974) 10 Cal.3d 857 (Yurko) when it failed to advise her of her constitutional rights to a trial by jury, to remain silent and to confront the witnesses against her before she admitted the prior conviction. She also contends the minute order reflecting her sentence and abstract of judgment fail to include her presentence custody credits.
DISCUSSION
1. The Record Indicates Payne’s Waiver of Her Constitutional Rights Was Voluntary and Intelligent Under the Totality of the Circumstances
Yurko error occurs when a court fails to “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. Howard (1992) 1 Cal.4th 1132, 1178.) “Proper advisement and waivers of these rights in the record establish a defendant’s voluntary and intelligent admission of the prior conviction.” (People v. Mosby (2004) 33 Cal.4th 353, 356 (Mosby) citing Howard, at pp. 1178-1179.) “Yurko error involving Boykin/Tahl admonitions should be reviewed under the test used to determine the validity of guilty pleas under the federal Constitution. Under that test, a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.” (Howard, at p. 1175.) More recently, the Supreme Court elaborated that in applying the Howard “totality of the circumstances” test, the reviewing 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.” (People v. Mosby, supra, 33 Cal.4th at p. 361.)
Mosby separated the cases into two categories: (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 the defendants had been advised of their right to a jury trial but not of the other two constitutional rights. (Id. at pp. 362-364.)
With regard to the truly silent record cases (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 appellate courts were correct in holding the defendant’s 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 on the underlying offenses and then admitted their prior convictions after they had been advised of a similar right to a jury trial on the special allegations relating to the prior offenses, although not specifically advised of their rights to confront witnesses and against self-incrimination. The Supreme Court agreed it would exalt form over substance to conclude, as had the Courts of Appeal in those cases, a defendant who had just finished a contested jury trial “‘is nonetheless unaware that he is surrendering the protections of such a trial’ when after being advised of the right to a trial on an alleged prior conviction the defendant waives trial and admits the prior.” (Mosby, supra, 33 Cal.4th at p. 364.) Although approving the decisions in the silent record cases, which had reversed the true findings on the allegations supporting prior conviction enhancements, Mosby disapproved the decisions concluding the pleas were not intelligent and voluntary in the incomplete advisement cases. (Id. at p. 365, fn. 3.)
Payne’s situation does not fall cleanly into either of the two categories identified by the Supreme Court in Mosby. The record contains no express advisement of any of the rights Payne waived by admitting the fact of her prior conviction. Yet the record is far from silent as to her understanding of the rights she ultimately waived: Payne’s admission was made immediately following a jury trial on the possession for sale charge, during which she exercised all of the relevant rights at issue, including her right to remain silent and her right to confront the witnesses against her. In addition, Payne had been convicted of the same offense several months earlier and had executed a Tahl waiver during the course of those proceedings. As Mosby points out, “‘a defendant’s prior experience with the criminal justice system’ is . . . ‘relevant to the question [of] whether [she] knowingly waived constitutional rights.’” (Mosby, supra, 33 Cal.4that p. 365.) The record also reflects repeated instances of consultation between Payne and her counsel. At the close of evidence her counsel stated he had discussed with Payne her waiver of a jury trial on the enhancement and stated on the record, in her presence, she did not intend to request a jury trial on the issue; Payne then answered “Yes” to the court’s confirming question to her. With respect to her opportunity to defend against the alleged enhancement, Payne’s counsel reviewed the court file from her prior case to determine whether any defense existed to the allegation -- and specifically noted the Tahl waiver she had executed -- immediately before allowing her to admit her prior conviction and joining in that admission.
Payne also was present when the court instructed the jury during the trial, “the defendant will have the right to cross-examine,” “the defense does not have to present any evidence” and “[a] defendant has an absolute constitutional right not to testify.”
Payne’s probation report also reveals she had twice been convicted of petty theft in January and December 2005, and unlawfully living on government property in September 2005.
Payne counters she was not expressly advised of the consequences of her admission, that is, the additional three-year term for the enhancement. But Payne was fully advised of the maximum sentence of nine years four months at the time she rejected the People’s plea offer of a three-year term. The record reflects Payne conferred with her counsel after being informed of the offer -- and the maximum alternative sentence -- before she rejected it.
In sum, our review of the entire record, including the circumstances surrounding Payne’s prior conviction, convinces us her admission was voluntary and intelligent notwithstanding the trial court’s failure to provide complete advisements and to obtain full Boykin-Tahl waivers. We note, however, that a trial court’s failure to give full advisements and obtain express waivers carries a high -- and needless -- cost. “‘As a consequence of the . . . failure to obtain valid admissions of readily provable serious priors, appeals are filed, briefs are prepared, appellate research and record review are conducted, argument is heard, appellate opinions are written, matters are remanded to trial courts, defendants are transported from prisons to county jails to courtrooms, attorneys are appointed to represent defendants, and prior allegations are belatedly relitigated.’” (Mosby, supra, 33 Cal.4th at p. 365, fn. 3, quoting People v. Garcia, supra, 45 Cal.App.4th at p. 1249 (conc. opn. of Woods (Fred), J.); see People v. Carroll, supra, 47 Cal.App.4th at pp. 897-898, disapproved on other grounds in Mosby, at p. 365, fn. 3 [“The consequences of admissions of priors in cases such as this are too grave and the giving of a proper warning far too easy to justify this court in searching through the record for something to save the admission. While we regret any added burden to an overloaded court system, the solution is to be found in compliance with well known, easily followed rules, not in strained applications of the harmless error doctrine by the appellate courts”].)
Payne’s assertion on appeal her mild mental retardation vitiates any inference she understood the rights she waived or the consequences of her admission ultimately does not assist us in analyzing her claim. Her counsel made no assertion she was incompetent to stand trial, nor does she do so on appeal. Based on our review of the record, she appeared to cooperate properly in the presentation of her defense. In the absence of any other indicia of her lack of understanding, we are unable to rest our decision on this claim.
2. The Abstract of Judgment Shall Be Amended To Accurately Reflect Payne’s Accumulated Presentence Credit
At the sentencing hearing the court awarded Payne 156 days of presentence custody credit (104 actual days and 52 conduct days). Payne contends and the Attorney General concedes the abstract of judgment does not accurately reflect Payne’s earned presentence custody credit and must be corrected. “An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.” (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We have the authority to correct any clerical error in the abstract of judgment so the records will conform to the oral judgment pronounced by the sentencing court. (People v. Boyde (1988) 46 Cal.3d 212, 256; People v. Baines (1981) 30 Cal.3d 143, 150; People v. Brown (2000) 83 Cal.App.4th 1037, 1039, 1046-1047.) We accordingly order the abstract of judgment modified to reflect the actual presentence custody credit earned by Payne. (People v. Avila (1999) 75 Cal.App.4th 416, 424.)
DISPOSITION
The judgment is affirmed. The abstract of judgment is ordered corrected to reflect Payne is entitled to 156 days of presentence credit. The superior court is directed to prepare a corrected abstract of judgment and forward it to the Department of Corrections.
We concur: WOODS, J., ZELON, J.