Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF063102 John G. Evans, Judge.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr., and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P. J.
I. INTRODUCTION
Defendant Julio Cesar Reyes appeals from his conviction of attempted murder with premeditation and deliberation (Pen. Code, §§ 664, 187, subd. (a); count 1) and robbery (§ 211; count 2), with associated enhancement allegations (§§ 12022, subd. (b)(1), 12022.53, subds. (c) & (d), and 12022.7, subd. (a)). Defendant contends the true finding on the prior strike allegation must be reversed because the trial court failed, over defense objection, to conduct an evidentiary hearing comporting with the requirements of People v. Allen (1999) 21 Cal.4th 424 (Allen). We find no error, and we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTS AND PROCEDURAL BACKGROUND
Defendant raises no issue on appeal regarding the underlying crimes; we therefore set forth the facts in summary fashion. Defendant and a cohort, Isaac Lopez, approached Tarik Ajanovic at a restaurant. Lopez asked Ajanovic for a cigarette; Ajanovic gave him one and he and Lopez conversed briefly. Lopez left, and defendant pulled out a gun and told Ajanovic to hand over his watch. Ajanovic complied, and defendant demanded his wallet. As Ajanovic was reaching for his wallet, defendant shot him in the chest. Defendant tried to fire a few more times but the gun misfired. Defendant fled outside, where Lopez picked him up. They were captured the same night after Lopez crashed the car into a residence. Defendant had Ajanovic’s watch in his pocket when he was arrested. Ajanovic survived the gunshot injury with no permanent disability.
The jury found defendant guilty of attempted murder with premeditation and deliberation (§§ 664, 187, subd. (a); count 1) and robbery (§ 211; count 2) and found true allegations as to both counts under sections 12022, subd. (b)(1), 12022.53, subds. (c) & (d), and 12022.7, subd. (a). Trial on a prior strike allegation (a 2001 robbery conviction) was bifurcated. The trial court found the prior strike allegation true. (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1).)
On May 28, 2010, the trial court sentenced defendant to a life term with a minimum parole eligibility of 14 years for the attempted murder, and a consecutive term of 25 years to life for the great bodily injury firearm enhancement (§ 12022.53, subd. (d)). The trial court stayed the sentences for the robbery and all other enhancements.
III. DISCUSSION
Defendant contends the true finding on the prior strike allegation must be reversed because the trial court failed, over defense objection, to conduct an evidentiary hearing comporting with the requirements of Allen, supra, 21 Cal.4th 424.
A. Additional Background
At the hearing on the prior, the People submitted into evidence, among other things, a certified prior conviction consisting of the complaint, the information, the minutes of defendant’s guilty plea hearing, defendant’s plea form, the minutes of the sentencing hearing, and the abstract of judgment. The minute order for the entry of plea hearing stated defendant was “advised of the charges and consequences of his/her plea and statutory sentencing, ” and that his counsel “concur[red] in defendant[’]s plea and/or admissions.” (Capitalization omitted.) The minute order stated, “Court finds based on inquiry & examination of [defendant] that [defendant] has the ability to understand and does understand his/her constitutional rights.” (Capitalization omitted.) The minute order further stated that the court found the plea was “the result of defendant expressly, knowingly, understandingly, and intelligently waiv[ing] his/her constitutional rights, ” and that defendant “knows & understands constitutional rights, nature of charges & consequences of his/her plea.” (Capitalization omitted.)
Defendant’s counsel pointed out that on the plea form, defendant had not initialed the statement, “I understand the terms of the plea agreement, ” although all other statements were initialed. On that basis, defendant’s counsel moved to strike the prior under Allen, supra, 24 Cal.App.4th 424 and later to amend the minutes nunc pro tunc to conform to the plea form—i.e., to state that defendant did not understand the plea. The trial court denied the request. It observed that defendant had signed the box that stated he had had adequate time to discuss the case, including the consequences of the plea, with his attorney, and noted that the prior court, in accepting the plea, had found defendant had the ability to understand his rights and did understand those rights.
B. Analysis
A trial court may not use a prior conviction to increase a defendant’s sentence if the prior conviction was obtained in violation of the defendant’s constitutional rights. (Allen, supra, 21 Cal.4th at p. 429.) Before a defendant may enter a guilty plea, he must knowingly and intelligently waive the constitutional rights to a jury trial and to confront witnesses and the constitutional privilege against self-incrimination. (Boykin v. Alabama (1969) 395 U.S. 238, 242 (Boykin); In re Tahl (1969) 1 Cal.3d 122, 132 (Tahl), superseded by statute on another ground as stated in People v. Carty (2003) 110 Cal.App.4th 1518, 1523-1524.)
When the defendant makes a sufficient allegation that the prior conviction was obtained in violation of Boykin/Tahl rights, the trial court must hold an evidentiary hearing, at which the prosecutor bears the initial burden of producing evidence that the defendant in fact suffered the prior conviction. (Allen, supra, 21 Cal.4th at pp. 435-436.) The burden then shifts to the defendant to produce evidence that his Boykin/Tahl rights were violated. (Allen, supra, at p. 435.) The reviewing court must then examine the record “to assess whether the defendant’s admission of the prior conviction was intelligent and voluntary in light of the totality of the circumstances. [Citation.]” (People v. Mosby (2004) 33 Cal.4th 353, 361.)
However, to meet his burden, the defendant “‘must affirmatively allege that at the time of his prior conviction he did not know of, or did not intelligently waive, ’” his rights. (Allen, supra, 21 Cal.4th at pp. 438-440; italics in original.) Thus, a defendant may not merely rely on a silent record—even if the record does not show he waived his constitutional rights before pleading guilty, he must plead and prove he was actually unaware of his rights and that he would not have pleaded guilty had he known those rights. (People v. Soto (1996) 46 Cal.App.4th 1596, 1605-1606.) Here, defendant made no such allegation.
Moreover, the totality of the circumstances indicates defendant did understand the consequences of his plea. On the first page of the plea form, defendant initialed a paragraph entitled “CONSEQUENCES OF PLEA, ” which listed five specific consequences. On the second page, defendant initialed the statement that he had had adequate time to discuss the matter with his counsel, including the consequences of his plea. The minute order stated that the court, in taking defendant’s plea, had conducted “inquiry & examination” of defendant to establish that defendant understood his rights. We conclude the trial court did not err in failing to conduct a further hearing under Allen.
IV. DISPOSITION
The judgment is affirmed.
We concur: MCKINSTER J., KING J.