Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. Nos. SS062227A, SS062273A
Mihara, J.
Defendant Benny Joe Perez contends, and the People concede, that the record fails to show that he voluntarily and intelligently waived his right to a jury trial, his right to confront witnesses, and his privilege against self-incrimination before he admitted the truth of the alleged prior narcotics conviction. We reverse the judgment.
We do not include a statement of facts, because it is not relevant to the issue on appeal.
On October 20, 2006, the jury found defendant Benny Joe Perez guilty of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a) - count 4) and transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a) - count 3) in case No. SS062273A. In a bifurcated proceeding on the same day, defendant admitted the truth of a prior narcotics conviction allegation (Health & Saf. Code, § 11370.2, subd. (c)).
On November 8, 2006, the information in case No. SS062227A was amended pursuant to a negotiated agreement to add a count of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1).) After advisements and waivers, defendant pleaded no contest to aggravated assault.
On December 8, 2006, the trial court sentenced defendant to three years on count 3 in case No. SS062273A, plus three years for the prior conviction, and a concurrent two-year term on count 4. The trial court sentenced defendant to three years for assault to be served concurrently with the other sentences.
II. Discussion
Following the conclusion of the trial in case No. SS062273A, this colloquy occurred: “THE COURT: . . . [¶] It’s my understanding the defendant desires to admit that he suffered a prior conviction of Health and Safety Code Section 11378 on or about November 21 of 1997? [¶] MR. PETTIT [DEFENSE COUNSEL]: That’s correct, your Honor. [¶] MR. MCNULTY [PROSECUTOR]: And also a conviction -- [¶] THE COURT: I’m sorry. Can you stop for just a minute so I can hear what’s going on? [¶] MR. PETTIT: Yes, he is. [¶] THE COURT: All right. Is that right, sir? [¶] THE DEFENDANT: Yes. [¶] THE COURT: The court accepts the admission.”
Prior to admitting the truth of a prior conviction allegation, the defendant must be advised of his right to a jury trial, the right to confront witnesses, and his privilege against self-incrimination. (People v. Mosby (2004) 33 Cal.4th 353, 359-360 (Mosby); In re Yurko (1974) 10 Cal.3d 857, 863.) In determining the validity of such an admission, the test is “whether ‘the record affirmatively shows that [the admission] is voluntary and intelligent under the totality of the circumstances.’” (Mosby, supra, 33 Cal.4th at p. 360, quoting People v. Howard (1992) 1 Cal.4th 1132, 1175.) Where the record does not include an express advisement of the right to a jury trial, courts “cannot infer 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.) Since defendant was not advised of his rights before he admitted the prior narcotics allegation, the judgment must be reversed.
III. Disposition
The judgment is reversed. The matter is remanded for a determination of the truth of the prior narcotics conviction allegation, and for resentencing in accordance with the results of the proceedings on remand.
WE CONCUR: Bamattre-Manoukian, Acting P.J., McAdams, J.