Opinion
C098098
06-17-2024
THE PEOPLE, Plaintiff and Respondent, v. FAUSTINO ANTHONY PENUELAS, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. STKCRFE20220009048
Wiseman J. [*]
After a jury found defendant Faustino Anthony Penuelas guilty of possessing a firearm having been convicted of a felony, defendant admitted he had previously been convicted of a serious felony within the meaning of Penal Code sections 1170.12, subdivision (b) and 667, subdivision (d). On appeal, defendant contends insufficient evidence supports the finding that he committed the prior felony for the benefit of a criminal street gang, based on our Supreme Court's decision in People v. Renteria (2022) 13 Cal.5th 951 (Renteria), which was issued approximately five months before his admission.
Undesignated statutory references are to the Penal Code.
We directed the parties to provide supplemental briefing addressing whether defendant has waived any evidentiary challenge to the finding that he had previously been convicted of a serious felony by admitting the allegation. In their supplemental brief, the People contend defendant is bound by his admission that his prior conviction was a serious felony within the meaning of sections 1170.12, subdivision (b) and 667, subdivision (d). Defendant responds that he should be permitted to countermand his admission, even though he made it subsequent to the issuance of the Renteria opinion, because his prior conviction preceded Renteria. Defendant also argues that the absence of evidence in the record showing his counsel informed him about the Renteria decision means we should find he was not properly advised. We see no merit in defendant's arguments, so we will affirm the judgment.
BACKGROUND
In September 2022, the People charged defendant with possessing a firearm having been convicted of a felony, among other offenses not relevant here. The People also alleged defendant had previously, in 2020, been convicted of the same offense, with an attached gang enhancement found true, and alleged that this prior conviction was a serious felony "within the meaning of Penal Code [s]ections 1170.12[, subdivision] (b) and 667[, subdivision] (d)."
The case went to trial in January 2023. After the close of evidence, defendant indicated his intent to waive his right to a jury trial on the prior serious felony allegation, which led to the following proceedings between the court, defendant, and defendant's counsel:
"THE COURT: Mr. Penuelas, your counsel just informed me that you're willing to waive the jury deciding whether you have suffered a strike prior .... Is that correct?
"THE DEFENDANT: Yes.
"THE COURT: And, Mr. Stephenson, you've explained to him the consequences of that, having the strike prior . . . ?
"MR. STEPHENSON: I have.
"THE COURT: So, Mr. Penuelas, obviously the strike prior can double whatever term you may get if you do get a prison term.... [¶] . . . [¶] [S]o you have the right to have this jury decide all that.
"Again, what your counsel is telling me is that you're willing to waive that
"THE DEFENDANT: Yeah.
"THE COURT: -- and just have the court decide or admit or stipulate if that's what you wanted to do.
"THE DEFENDANT: Yes.
"THE COURT: Okay. So we'll note there's a knowing, intelligent, and -knowing, intelligent, and voluntary waiver of the jury for the strike prior ...."
The jury found defendant guilty of the illegal firearm possession charge. Defendant then indicated his intent to waive his right to a court trial on the prior serious felony allegation and admit that he had previously been convicted of a serious felony, which led to the following:
"THE COURT: So, Mr. Penuelas, it's my understanding that your counsel has said you're going to go ahead and admit that you have suffered a prior strike felony as alleged in the information, pursuant to Penal Code section 1170.12(b), in that you were convicted on June 26th of 2020, of being a felon in possession of a firearm, with the enhancement that was to benefit the gang, benefit a gang or in association with a gang. That's what made -- made it a strike.
"Is that your intention, sir?
"THE DEFENDANT: Yes.
"THE COURT: And you do know this has the effect of doubling your sentence if you do get prison?
"THE DEFENDANT: Yes.
"THE COURT: And you would have a right to have a court trial on this matter. You would have a right to confront and cross-examine the witnesses [who] would testify against you. You would have the right to present a defense, as well as you have the right against self-incrimination, which means nobody can force you to admit that this is true. If you -- when you do admit it, you're incriminating yourself, because you are not denying the charge.
"Do you understand those rights, sir?
"THE DEFENDANT: Yes.
"THE COURT: Do you waive them?
"THE DEFENDANT: Yes.
"THE COURT: And do you concur in the rights waiver, sir?
"MR. STEPHENSON: I do.
"THE COURT: And obviously you have explained the consequences to your client just as I have?
"MR. STEPHENSON: I have.
"THE COURT: And you're not under the influence of anything that would affect your ability to understand what we are doing here today?
"THE DEFENDANT: No.
"THE COURT: Nobody has made any promises to you?
"THE DEFENDANT: No.
"THE COURT: And nobody has threatened you?
"THE DEFENDANT: No.
"THE COURT: So do you go ahead and admit you suffered a prior strike conviction as alleged in the information, again that being felon in possession of a firearm with street gang activity?
"Do you admit that's true?
"THE DEFENDANT: Yes.
"THE COURT: I'm going to find you knowingly, intelligently, and voluntarily waived your constitutional rights as to that."
Prior to the sentencing hearing, defendant stipulated that two aggravating factors existed-he had served a prior prison term and had been on parole at the time of the offense. Based on those two factors, the trial court selected the upper-term sentence of three years in prison. The court then doubled the sentence to six years in prison, based on the prior serious felony conviction.
Defendant timely appealed from the trial court's order. In their initial briefing, the parties agreed that the record lacked substantial evidence to show that defendant's prior serious felony conviction met the requirements of Renteria. We directed the parties to file supplemental briefs addressing whether defendant has waived any evidentiary challenge to the finding that he had previously been convicted of a serious felony by admitting the allegation.
DISCUSSION
I
Waiver of Evidentiary Challenge
Defendant contends no substantial evidence supports a finding that his prior serious felony conviction meets the requirements established in Renteria, supra, 13 Cal.5th at page 951. We conclude defendant waived any evidentiary challenge to the finding by admitting the allegation.
Renteria addressed "the showing the prosecution must make to establish that Penal Code section 186.22 gang enhancements or penalties apply to a crime committed by a gang member who acts alone." (Renteria, supra, 13 Cal.5th at p. 957.) The jury had convicted the defendant in Renteria of two counts of shooting at an inhabited dwelling and found true the allegations that the defendant had committed both counts "for the benefit of . . . any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members," pursuant to section 186.22, subdivision (b)(4). (Renteria, at pp. 957, 959.) The Renteria court held that, in order to prove a gang enhancement under section 186.22, subdivision (b) when a lone actor commits a felony, the People must prove the defendant committed the offense "(1) for the benefit of the gang, and (2) with specific intent to promote, further, or assist the criminal conduct of gang members." (Renteria, at p. 965.) Renteria also held that the "benefit of the gang" must be more than "enhancing] the gang's reputation for viciousness in the community" and the "criminal conduct of gang members" must be "criminal activity other than the charged offense." (Id. at pp. 965-969.)
Renteria did not address California's three strikes law (§§ 667, subds. (b)-(j); 1170.12) nor does it address the specific provision that makes "any felony offense, which would also constitute a felony violation of Section 186.22" a serious felony for the purposes of sentencing under the three strikes law (§§ 1192.7, subd. (c)(28); 667, subd. (d); 1170.12, subd. (b)). Accordingly, defendant's contention that the record lacks substantial evidence that his commission of the prior offense meets the standards explained in Renteria misses the point. The lack of evidence is due to defendant's admission, which removed from dispute the allegation that defendant had been convicted of a prior serious felony. (See People v. Maultsby (2012) 53 Cal.4th 296, 302 ["an admission removes from consideration evidence going to the truth of the alleged enhancement"].) In other words, after defendant admitted the allegation that his prior conviction was a serious felony "within the meaning of Penal Code [s]ections 1170.12[, subdivision] (b) and 667[, subdivision] (d)," the prosecution had no need to-and consequently did not-offer evidence to prove the allegation.
People v. Thomas (1986) 41 Cal.3d 837 (Thomas), addressed a similar situation. In Thomas, the defendant had been convicted of rape and, prior to trial, admitted that he had been convicted of four burglaries which were" 'serious felon[ies] . . . within the meaning of sections 667 and 1192.7 of the Penal Code.'" (Thomas, at p. 839.) But those four burglary priors "occurred at a time when entry into a residence was not an element of the crime of second degree burglary" and prior to the enactment of the law defining serious felonies. (Id. at pp. 840-841.) Between the time of the prior convictions and the case on appeal, sections 667 and 1192.7 had been enacted, defining "burglary of a residence" as a serious felony. (Thomas, at p. 840.) The defendant contended that "his admission of the prior convictions was insufficient because he did not specially admit that his prior burglaries involved entry into a residence." (Id. at p. 842.)
The Thomas court rejected the defendant's substantial evidence challenge, reasoning: "A burglary does not have to involve a residence to be a serious felony under section 1192.7; that section would also include a burglary in which the defendant inflicted great bodily injury on any person other than an accomplice (subd. (c)(8)), used a firearm (subd. (c)(8)), or used a deadly weapon (subd. (c)(23)). Thus the issue posed by the information is not whether the defendant entered a residence, but whether he committed the burglary in a manner which would render it a 'serious felony' under section 1192.7. Defendant's admission concedes this exact issue." (Thomas, supra, 41 Cal.3d at pp. 842-843.)
Just as in Thomas, the issue posed by the information in this case is not whether defendant's conduct in the prior offense meets the requirements of Renteria, but whether he committed the prior offense in a manner that would render it a serious felony under sections 1170.12 and 667, which both reference section 1192.7. (§§ 1170.12, subd. (b)(1), 667, subd. (d)(1).) As in Thomas, defendant's admission concedes this exact issue. Whether the gang enhancement attached to defendant's prior conviction meets the requirements of Renteria is of no consequence because defendant has admitted that the prior conviction qualifies as a serious felony under the three strikes law. By doing so, he chose not to contest the issue and cannot do so for the first time on appeal.
Defendant cites to People v. Watts (2005) 131 Cal.App.4th 589, but Watts is easily distinguished. In Watts, the defendant did not admit his prior conviction qualified as a serious felony. Instead, the defendant "reserved the right to argue at sentencing, and indeed argued at sentencing, that his prior conviction did not qualify as a 'strike.'" (Id. at p. 592.) Here, in contrast, defendant chose to admit that his prior conviction qualified as a serious felony rather than arguing it did not. Defendant thereby waived any evidentiary challenge to the prior serious felony allegation.
We also note that defendant's prior conviction need not meet the requirements of Renteria because Renteria addressed only subdivision (b) of section 186.22, but a felony offense qualifies as a serious felony if it would also be a violation of any part of section 186.22. (§ 1192.7, subd. (c)(28); see People v. Briceno (2004) 34 Cal.4th 451, 462.) The allegation in this case mentioned street gang activity and the gang enhancement attached to defendant's prior conviction but did not specify how the conduct violated section 186.22. Defendant could have challenged the serious felony allegation for uncertainty, but he did not file a demurrer, hence, he waived his right to do so. (Thomas, supra, 41 Cal.3d 843 ["The defect in the pleading, however, is one of uncertainty only, and is waived by defendant's failure to demur"].)
II
Grounds for Challenging Defendant's Admission
Having waived his right to challenge either the form of the allegation or the evidentiary basis for his admission, defendant's options on appeal are limited. As the Thomas court observed, "when the sufficiency of an admission of a prior conviction is called into question, the only issue is whether the admission was voluntary, made by a defendant who has been informed of his constitutional rights and of the consequences of the admission." (Thomas, supra, 41 Cal.3d at pp. 844-845; see People v. Cross (2015) 61 Cal.4th 164, 170-171.) Defendant does not contend his admission was involuntary or unknowing, nor would the record support such a contention. The trial court repeatedly informed defendant of the consequences of his decisions to waive his rights to both a jury trial and a court trial and repeatedly confirmed that defendant's counsel had explained those consequences to defendant.
This is not a situation where defendant could not have been aware of a subsequent change in the law; defendant made his admission approximately five months after the Renteria decision was issued. Instead, just as in Thomas, "we have neither claim nor finding that defendant was not advised of the elements of the charge and enhancements. From all that appears on the record this is no different from any other case in which counsel explains to his client the basis of the charges, and the client, in admitting the charges, knowingly admits each of the elements of that charge. If defendant wants to assert that in fact he was not properly advised of the basis of the serious felony charges, he will have to do so by petition for a writ of habeas corpus." (Thomas, 41 Cal.3d at p. 844, fns. omitted.)
The Thomas court further explained: "It is not the function of the information to state the elements of an offense or enhancement. (See §§ 951, 952, 969.) It is, instead, the role of counsel to explain to his client the essentials of the charge. We recognize that in an occasional case counsel may fail to do so, and a defendant may plead guilty or admit an enhancement without having been informed of some critical matter, but that claim is best asserted by a petition for a writ of habeas corpus." (Thomas, supra, 41 Cal.3d at pp. 843-844.) Just as in Thomas, defendant fails to show that his counsel did not explain the elements of the serious felony allegation. Defendant must present any such evidence by petition for a writ of habeas corpus.
Defendant argues that the absence of evidence in the record showing his counsel informed him about the Renteria decision means we should find he was not properly advised. But "counsel is presumed to know the defendant's rights and is obligated to advise the defendant accordingly." (People v. Blackburn (2015) 61 Cal.4th 1113, 1124; see also People v. Samayoa (1997) 15 Cal.4th 795, 845-846 ["' "If the record sheds no light on why counsel acted or failed to act in the manner challenged, 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' [citation], the contention must be rejected"' "].) Defendant fails to show that his attorney did not properly advise him about the extent to which the Renteria decision may have affected his prior conviction. So, just as in Thomas, if defendant has evidence outside the record to support this contention, he must offer it by petition for a writ of habeas corpus.
Because defendant admitted the allegation that he had previously been convicted of a serious felony and does not claim that admission was not knowing and voluntary, we have no basis to vacate the trial court's finding that the allegation was true. As we are not remanding this case, we need not address defendant's argument that the trial court must consider the changes made by Assembly Bill No. 333 (2021-2022 Reg. Sess.) on remand.
DISPOSITION
The judgment is affirmed.
We concur: Duarte, Acting P. J. Mesiwala, J.
[*] Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.