Opinion
2d Crim. No. B226182 Super. Ct. No. BA367924
10-26-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMES PAUL RHONE, Defendant and Appellant.
Ann Bergen, Penners Bergen, a Law Corporation, under Appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth R. Byrne, Supervising Deputy Attorney General, and David C. Cook, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County)
James Paul Rhone appeals from the judgment after conviction by jury of grand theft person. (Pen. Code, § 487, subd. (c).) In a bifurcated proceeding, pursuant to a plea agreement with the prosecution, appellant admitted a 1984 prior strike conviction (robbery). (§§ 211; 667, subds. (c) & (e); 1170.12, subds. (a) & (c)). The trial court sentenced him to four years in state prison for grand theft (a doubled two-year midterm). Appellant contends that he did not voluntarily and intelligently admit his 1984 robbery conviction. He further argues, and respondent concedes, that the abstract of judgment fails to reflect the fines that were actually pronounced by the trial court. We remand with directions to correct the abstract of judgment and otherwise affirm.
All statutory references are to the Penal Code unless otherwise stated.
BACKGROUND
Appellant exercised his right to be tried by jury. He was represented by counsel at trial and present while his counsel cross-examined adverse witnesses. He testified at trial. While cross-examining appellant in the presence of the jury, the prosecution inquired as follows regarding his prior convictions:
"[PROSECUTOR:] In 1984, . . . were you convicted of committing robbery, taking of property by force and fear?
"[APPELLANT:] That's a long time. I don't remember. But I know I had a case back then.
"[PROSECUTOR:] Did you have a conviction for robbery?
"[APPELLANT:] I pleaded guilty to that.
"[PROSECUTOR:] And this is you?
"[APPELLANT:] I guess it was.
"[PROSECUTOR:] Now, in 1991, were you convicted of first degree burglary for entering a residence?
"[APPELLANT:]" Yes."
Before the jury found him guilty of grand theft person, appellant waived his right to a jury trial regarding the prior strike conviction allegations. In subsequent post-verdict proceedings, appellant admitted his prior strike convictions. Portions of those proceedings follow:
"[PROSECUTOR]: Mr. Rhone . . . do you admit for purposes of this priors [sic] trial that on August 9th of 1991 you suffered a conviction for Penal Code section 459 in the first degree in Case No. BA024933? [¶] . . . [¶]
"[PROSECUTOR]: Your honor, . . . the date should reflect June 5th of 1991 . . . .
"THE COURT: I'm amending by interlineations. [¶] . . .[¶] Conviction date is June 5th of 1991 for BA024933, for first degree burglary.
"[PROSECUTOR] Mr. Rhone, do you admit that you suffered a conviction for Penal Code section 459 in the first degree in Case Number BA024933, on June 5th of 1991?
"[Defendant and his counsel confer sotto voce]
"[DEFENSE COUNSEL]: He's saying it's December 31st, '91.
"[PROSECUTOR]: Your honor, December 31st 1991, . . . he suffered a conviction for possessing a controlled substance within a jail. . . . [T]here was a December 31st conviction . . . for a different matter.
"[DEFENSE COUNSEL]: So he's just saying it's a different day. But I think . . . .
"THE COURT: Did he hear what she just said?
"[DEFENSE COUNSEL]: Yes.
"[The defendant and his counsel confer sotto voce]
"[DEFENSE COUNSEL]: Your honor, he's just telling me he doesn't actually remember the date, but he does admit the conviction.
"THE COURT: All right. . . . [¶] . . . [¶]
"[PROSECUTOR]: Mr. Rhone do you admit that you suffered a prior conviction for Penal Code section 211 in Case No. A751721 on November 29th of 1981?
"THE DEFENDANT: I don't remember it.
"THE COURT: Do you remember that you suffered a conviction?
"THE DEFENDANT: I remember I had a case.
"THE COURT: Do you remember you suffered a conviction for robbery? Do you remember that you suffered that conviction for strong-arm robbery?
"THE DEFENDANT: Yes.
"THE COURT: And it was in 1984?
"THE DEFENDANT: I don't know. I guess it was. I don't know. It's been a while.
"THE COURT: If we told you that it was in 1984, would that seem about right?
"THE DEFENDANT: I was in prison. I guess.
"THE COURT: So, Sir, we can go through this, and you don't have to remember. We can have a trial. They can present records and everything. But we're trying to help you. But if you don't want to admit it, that's fine.
"THE DEFENDANT: I'm trying to help myself also.
"THE COURT: So to help yourself, in order to get the indicated sentence, you would have to admit the prior convictions for which they're showing you paperwork for. We wouldn't expect you to remember way back in 1984. But showing you paperwork that indicated that is the case, it will require you to admit it.
"[Defendant and counsel confer sotto voce.]
"[DEFENSE COUNSEL]: Can you ask that question again?
"[PROSECUTOR]: Mr. Rhone, do you admit that you suffered a conviction for Penal Code section 211 in Case No. A751721, on November 29th of 1984?
"THE DEFENDANT: Yes.
"THE COURT: All right. Counsel join?
"[DEFENSE COUNSEL]: Yes, I do."
The trial court then found appellant's prior conviction of robbery in Case No. A751721 to be true. After making that finding, it admonished appellant about his right to a court trial as to whether the conviction was true. Appellant waived his right to a court trial.
DISCUSSION
Prior Conviction
Appellant contends that he did not voluntarily and intelligently admit his 1984 robbery conviction. We disagree.
A guilty plea or an admission of a prior conviction is valid if the record affirmatively shows that the plea is voluntary and intelligent under the circumstances. (People v. Howard (1992) 1 Cal.4th 1132, 1175 [admission of prior valid although trial court did not advise concerning right against self-incrimination].) Advisement and waivers of the constitutional rights to a jury trial, to confront adverse witnesses and to not incriminate oneself, establish a defendant's voluntary and intelligent admission of the prior conviction. (People v. Mosby (2004) 33 Cal.4th 353, 356.) Absent complete advisement and waivers, the reviewing court must examine "the whole record" to determine whether a defendant's admission of a prior conviction was intelligent and voluntary under the totality of the circumstances. (Id. at p. 361.)
Like the defendant in Mosby, appellant admitted the prior conviction enhancement following a jury trial in which his attorney cross-examined adverse witnesses. During the trial, appellant testified on his own behalf and acknowledged that he had suffered a prior conviction. Appellant was in the courtroom when prospective jurors were instructed that "it is a constitutional right of the defendant that he not be required to testify," and that if he chose not to testify, his choice should not be held against him. He was also present when his attorney informed the trial court of the possibility that appellant might testify and that they "would have to discuss which convictions would be used to impeach him if he were to take the stand." The reasonable inference is that counsel advised appellant of his right against self-incrimination and right to confront adverse witnesses before appellant testified and before he admitted the prior conviction allegation.
Appellant's experience in the criminal justice system is also relevant in determining whether he knowingly waived his legal rights. (People v. Mosby, supra, 33 Cal.4th at p. 365.) He is not a stranger to the criminal justice system. He had four prior convictions that qualify as strikes, dating back to 1972. He claims that he was not admonished about the length of the sentence he would face if he admitted the prior strike or if he refused to admit it. While neither the court nor prosecutor did so during recorded proceedings, the record suggests that his counsel discussed appellant's potential sentence under either scenario with him. His counsel filed a motion asking the court to strike his prior convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497; the prosecution filed written opposition. Thereafter, in appellant's presence, his counsel advised the court that he would admit a prior strike conviction with the understanding that the midterm would be imposed for grand theft person, and he would receive a second strike sentence. Under the totality of the circumstances, the record establishes that appellant intelligently and voluntarily admitted the prior conviction. (See, e.g., People v. Howard, supra, 1 Cal.4th at p. 1180 [admission of prior conviction valid even where defendant was not advised of right against self- incrimination].)
Fines
As appellant argues, and respondent concedes, the abstract of judgment and minute order reflect a $50 fine (Health & Saf. Code § 11372.5) and an $85 penalty (§ 1464; Govt. Code § 76000) that were not imposed by the court in its oral pronouncement of judgment. In the event of such a discrepancy, "the oral pronouncement controls. [Citations.]" (People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3.)
DISPOSITION
We remand and direct the clerk of the superior court to amend the abstract of judgment and minute order to correspond with the court's oral pronouncement of judgment; i.e., the amended order and abstract shall not include any Health and Safety Code section 11372 fine, nor any corresponding penalty pursuant to section 1464 and Government Code section 76000. The clerk shall also forward the amended abstract of judgment to the Department of Corrections. The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED.
COFFEE, J.
We concur:
GILBERT, P.J.
PERREN, J.
Barbara R. Johnson, Judge
Superior Court County of Los Angeles
Ann Bergen, Penners Bergen, a Law Corporation, under Appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth R. Byrne, Supervising Deputy Attorney General, and David C. Cook, Deputy Attorney General, for Plaintiff and Respondent.