Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA302666. George G. Homelike, Judge.
Kim Alchemist, 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. Haman aka, Assistant Attorney General, Lawrence M. Daniels and Sun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Eric Simmons appeals from his conviction of first degree murder, first degree attempted murder, and kidnapping for purposes of carjacking. Simmons contends that the trial court should have excluded, as inadmissible character evidence, statements made by a friend to law enforcement officers while both men were in custody, as well as testimony by his ex-wife that he had abused her. He also contends that his counsel was ineffective for failing to object or request a limiting instruction regarding evidence of other crimes, and for failing to request a cautionary instruction regarding in-custody informants. Simmons also contends that, although he admitted prior felony convictions, his sentence must be vacated because he was not adequately informed of his constitutional rights. We reject appellant’s contentions and affirm the judgment.
BACKGROUND
Simmons killed his girlfriend Isabel S., by shooting her in the head with a shotgun as she sat listening to music in the garage that she and Simmons used as a residence. The shooting occurred in the presence of witness Danny C., and within the hearing of Doria C. (also known as Doria J. and Betty). Both witnesses were friends of Isabel, and were visiting her at the time.
Doria testified that she had gone to put something in her car, but rushed back to the garage after hearing a gunshot. As she entered, Simmons said, “There’s somebody in here who’s waiting for you. Your best friend.” Simmons then pointed the shotgun at Doria’s head and fired from a distance of approximately six feet. She shielded her face with her arms, and suffered gunshot wounds on her face and forearm. Simmons asked, “You are still standing?” and fired again, this time in the direction of her abdomen, missing her and hitting the fence behind her. As Doria fled over the fence to a neighbor’s yard, Simmons ran to the front of the house.
Danny also testified. He saw Simmons walk into the room, heard a shot and saw Isabel’s head move backward, and then saw her brains spattered “all over the place.” He testified that Simmons had a “weird” look that evening, like a “typical dope fiend.” Danny immediately left the garage, and, as he walked away, he saw Simmons and Doria fighting with a gun. Simmons then fired the shotgun in his direction, but missed.
Still carrying the shotgun, Simmons went into the neighborhood, and approached a group of men who did not know him. One of the men, Enrique A., was sitting in his car conversing with the others. Enrique testified that when he saw Simmons approaching, he told his friend Mario R. to get in the car and the others to go into the house, but as Mario attempted to sit in the passenger seat, Simmons elbowed him out of the way and sat down in his place. Simmons held the shotgun in his right hand, pointed up, but did not order Enrique to drive; nor did he verbally threaten him.
Feeling threatened, and afraid for the safety of his friends, Enrique drove away and asked Simmons where he needed to go. Although Simmons was giggling and babbling incoherently in Spanish, Enrique heard him say la fronter, meaning, the border. After leaving the immediate neighborhood, Enrique stopped the car, told Simmons that he was going to get out and leave the keys, and then said, “You’re going to take it.” When Enrique got out, Simmons moved to the driver’s seat and drove away.
Sheriff’s Detective Todd Anderson testified that blood was found in Enrique’s car and on Simmons’s clothing. Counsel stipulated that the blood was Doria’s.
Simmons’s ex-wife Dorothy N. testified that Simmons came to her home at about 1:00 am the night of the shooting. He wanted her to go with him, but she refused. An hour or so later, Dorothy picked Simmons up from the home of a friend, and drove him to Red lands, where they spent one night in one motel and the next night in another. She then left him and went to work, where she was questioned by detectives.
While in jail, Simmons asked Dorothy to contact witnesses and dissuade them from testifying. He told her to tell Danny that he would appreciate his not showing up in court, and that, if he did testify, he would be in danger. Dorothy complied, and was later convicted of a felony attempt to dissuade a witness. She also retrieved telephone numbers from Simmons’s cell phone, which he had requested because he had a plan to pay off the witnesses.
On cross-examination, defense counsel elicited Dorothy’s testimony that Simmons beat her during their marriage, and that she obtained a restraining order against him.
Simmons’s aunt Stella C. testified that her parents lived in the front house, and that Simmons and Isabel had been permitted to live in the garage, which had been converted to living quarters. Although Stella denied she was aware that the couple’s relationship had deteriorated, she testified that Isabel had told her that Simmons had assaulted her several times in the week before the shooting.
Doria testified that she had seen Simmons strike Isabel and urinate on her clothing. Two days before the shooting, she saw him punch her in the head. After Simmons’s cousin David intervened, Simmons pointed at Isabel and David, gesturing with his hand in the shape of a pistol, and made gunfire noises.
Oscar G. testified that he had grown up with Simmons, and had lived in the garage with him at one time. Claiming he had amnesia due to amphetamine use, Oscar testified that he did not remember telling Detective Anderson about a conversation he had with Simmons while in custody approximately one week after the shooting. Oscar testified that he was a gang member, and that his life would be in danger from others simply for testifying in court, because testifying was forbidden in gang culture.
Oscar did not suggest that his life would be in danger from Simmons, and he testified that Simmons was not a gang member.
After Oscar answered “I don’t remember” to nearly all the prosecution’s questions, counsel orally stipulated that Oscar would answer all further questions about his conversation with detectives with a denial or by claiming not to remember. Defense counsel waived all objections to the audio recording of Oscar’s interview with Detectives Anderson and Barry Hall, and agreed that the recording could be admitted to impeach Oscar’s testimony. The recording was played for the jury, and a transcript of the interview was admitted into evidence.
In the interview, Oscar admitted that he was facing charges of failure to appear in court and falsely representing his identity to peace officers when he was arrested on a burglary charge. Detective Anderson told Oscar that, if he gave them information, the detectives would write a letter on his behalf to the judge and district attorney on his pending case telling them of his cooperation, which would probably prevent his going to prison. Detective Hall told Oscar he would probably be sent to jail instead.
Failure to appear in court may be a misdemeanor or felony, depending upon the underlying charges and other circumstances. (See Pen. Code, § 1320.) Falsely representing one’s identity to peace officer is a misdemeanor. (Pen. Code, § 148.9.)
Oscar told the detectives that while he and Simmons were in custody, waiting to be taken to court, Simmons told him he had been arrested on a domestic violence charge, and the murder charge was imminent. Simmons laughed and joked about not remembering what he had used to hit his ex-wife. Oscar remarked that Simmons was evil and “demon possessed.”
Oscar and Simmons rode the bus together to court. Simmons told Oscar that he had killed Isabel because he blamed her for ruining his marriage, and because he was angry about being kicked out of the garage, while she was permitted to stay. He was angry with the three of them -- Isabel, Danny, and Doria -- because they had been getting high while he was not there. Simmons admitted to Oscar that he shot Isabel in the head “at point blank range” after telling her, “[O]en more fucking word out of you and I’m gonna fucking blow your head off.” He then shot her when she made a remark and told him to shut up. Simmons told Oscar that he was going to claim insanity by pretending to be insane. He added, “[P]lieus they don’t have a murder weapon.” Simmons then told him where he had thrown it from the car. Simmons also told Oscar that he had intended to kill the witnesses. First, he shot Betty (Doria), Simmons said, wounding her in the arm, and then the gun jammed, allowing Danny and Betty to escape.
Oscar told the detectives that he had heard that Simmons had killed before, in Nevada sometime between 1994 and 1996, but he added that it could have been just talk. Oscar told them that it happened about the time that Simmons was arrested with “Beaver” in Las Vegas with a pound of crystal amphetamine in their possession. Oscar also told them that Simmons had beat his ex-wife Dorothy once, and that he was a drug dealer.
The defense presented no witnesses. Defense counsel did not suggest that the evidence was insufficient to prove that Simmons shot Isabel and Doria. He argued to the jury that the shooting was done in the heat of passion, and that the prosecution had not proven premeditation and deliberation.
The jury convicted Simmons of first degree murder (count 1), first degree attempted murder (count 2), and kidnapping during commission of carjacking (count 3). The jury found true the allegations that he personally used a firearm, personally discharged a firearm, and personally inflicted great bodily injury upon Isabel and Doria. Simmons waived a jury trial as to alleged prior serious or violent felony convictions. As to each count, he admitted a prior conviction for burglary in 1998, and convictions for auto theft and reckless driving while fleeing a police officer in 2001.
After denying his motion for new trial, the trial court sentenced Simmons to 25 years to life as to count 1, pursuant to Penal Code section 190. Consecutive to that sentence, the court imposed 25 years to life for discharging a firearm resulting in great bodily injury, pursuant to section 12022.53, subdivision (d). As to count 2, the court sentenced Simmons to a consecutive life term, pursuant to section 664, subdivision (a), plus 25 years to life for causing great bodily injury with a firearm, pursuant to section 12022.53, subdivision (d). The court stayed imposition of sentence as to the other two enhancements alleged as to count 2 pursuant to sections 12022.5 and 12022.7. With regard to count 3, the court sentenced Simmons to a consecutive life term pursuant to section 209.5, subdivision (a), plus a 10-year enhancement for the firearm allegation alleged pursuant to section 12022.53, subdivision (b). As to each of the three counts, the court imposed a five-year enhancement due to Simmons’s prior felony conviction, pursuant to section 667, subdivision (a)(1).
All subsequent code references are to the Penal Code unless otherwise noted.
The court ordered that the sentence as to each count run consecutively, because each charge involved a separate victim and separate act. Thus, the total sentence was 75 years to life, plus two life terms, plus 25 years. The sentence was imposed March 19, 2008, and Simmons filed a timely notice of appeal the same day.
DISCUSSION
I. Character and Other Crimes Evidence
At trial, Oscar answered the prosecution’s questions regarding what he had told detectives with, “I don’t remember,” and he testified that his life would be in danger from others simply for testifying in court. Dispensing with further testimony from Oscar, counsel stipulated that he would answer any further prosecution questions about his interview by Detectives Anderson and Hall with, “I don’t know,” or he would deny he made the statements.
A witness’s evasive and untruthful “I don’t know” answers are deemed inconsistent with prior statements, justifying the admission of the prior statements to establish the truth of the matters asserted, under the conditions preserving the right to confrontation. (See Avid Code, §§ 770, 1235; People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220.) Simmons acknowledges that Oscar’s interview was admissible under this rule, but contends that the court should have excluded Oscar’s opinion of his character and statements regarding other crimes.
In particular, Simmons contends that the trial court erred in admitting Oscar’s statements to the detective that Simmons had beaten Dorothy, that he had committed a murder in Nevada, that he was a drug dealer, and that he was evil and “possessed by a ‘demon.’” He contends that the statements amounted to character evidence, prohibited by Evidence Code section 1101, subdivision (a), and the court should have excluded them.
Evidence Code section 1101, subdivision (a) provides that with certain exceptions, “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”
After dispensing with further testimony from Oscar, the prosecutor asked defense counsel: “Do you also waive all objections to admitting the audio recording of Oscar G[.] made on May 24, 2006, for the purpose of impeachment... ?” Counsel answered, “Yes.” The recording was played for the jury, and although counsel limited the waiver to impeachment, he permitted the court to play the entire recording, without objecting to the challenged statements as improper impeachment or as inadmissible character evidence.
There can be no reversal by reason of the admission of possibly excluder evidence unless the defendant preserved the issue with a timely objection in the trial court, and a statement of the specific ground of objection. (Avid Code, § 353, sud (a).) Further, a defendant may not expressly acquiesce in the admission of evidence and then challenge the evidence on appeal. (People v. Clark (1990) 50 Cal.3d 583, 624.) A defendant is bound by the stipulations of counsel and express waivers made in open court. (People v. Wilson (1947) 78 Cal.App.2d 108, 119-120.) As defense counsel allowed the entire recording to be played without a specific objection, a suggested redaction, or a request for a limiting instruction specific to the challenged remarks, Simmons did not preserve the admissibility of Oscar’s comments for review.
In any event, Oscar’s comments were harmless, as the evidence against Simmons was overwhelming. Simmons shot Isabel in Danny’s presence and within Doria’s hearing, and then turned the shotgun on Danny and Doria as they fled the scene. After Simmons shot Doria, he remarked, “You’re still standing?” fired at her again. Later, while in custody, Simmons attempted to dissuade the witnesses from testifying. Finally, in an unchallenged part of Oscar’s statement, Oscar told the detectives that Simmons admitted that he had shot Doria and had tried to shoot Danny, intending to kill them both. Simmons referred to the shotgun in his conversation with Oscar as the “murder weapon,” and told him that his defense to the murder would be sanity.
Simmons also contends that the court erred in admitting Dorothy’s testimony that Simmons beat her and that she had obtained a restraining order against him. Because defense counsel elicited Dorothy’s statements, Simmons may not challenge the evidence on appeal. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1139.)
II. Assistance of Counsel
A. Contentions
Simmons contends that he was denied effective representation of counsel in violation of the United States and California Constitutions, because defense counsel elicited Dorothy’s testimony and failed to object to Oscar’s statements or request a proper limiting instruction. He also contends that counsel was ineffective in failing to request Judicial Council of California Criminal Jury Instructions CALJIC No. 3.20 or CALCRIM No. 336, instructing the jury to view the testimony of an in-custody informant with caution.
B. Standard and Scope of Review
“The Sixth Amendment guarantees competent representation by counsel for criminal defendants. We presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions. [Citations.]” (People v. Holt (1997) 15 Cal.4th 619, 703.) As Simmons acknowledges, it is his burden to establish that counsel’s performance was deficient, and that counsel’s errors were so serious as to deprive him of a fair trial with a reliable result. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).)
“Judicial scrutiny of counsel’s performance must be highly deferential.... [T]he defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation.]” (Strickland, supra, 466 U.S. at p. 689.) “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’” (People v. Lucas (1995) 12 Cal.4th 415, 436-437, citing Strickland, at p. 689.)
Counsel’s failure to object is rarely found to be constitutionally ineffective representation. (People v. Huggins (2006) 38 Cal.4th 175, 252.) When counsel’s explanation for the omission does not appear in the appellate record, a claim of ineffective assistance will be rejected unless the record shows that “‘“counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.”’ [Citations.]” (People v. Earp (1999)20 Cal.4th 826, 871.)
The defendant must also demonstrate prejudice, “i.e.,... a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the [defendant]. [Citations.]” (In re Jones (1996) 13 Cal.4th 552, 561.) If the defendant fails to do so, the reviewing court need not determine whether counsel’s performance was deficient. (People v. Holt, supra, 15 Cal.4th at p. 703.)
C. Oscar’s Remarks and Dorothy’s Testimony Regarding Spousal Abuse
Simmons contends that counsel could have had no satisfactory tactical reason not to object to Oscar’s characterizations of him as “evil” and “demon possessed,” or to elicit Dorothy’s testimony that she had been beaten by Simmons during her marriage to him. (See People v. Earp, supra, 20 Cal.4th at p. 871.) He contends that the evidence was prejudicial, and that, without it, the jury might have believed his heat of passion defense and found him guilty of voluntary manslaughter. The evidence, Simmons argues, allowed the jury to conclude that he was a “stone cold killer who premeditated the execution of his girlfriend.”
Simmons’s contention presupposes that there was sufficient evidence to permit the jury to find in favor of his heat of passion defense. Malice may be negated by a sudden quarrel or heat of passion sufficient to reduce an intentional homicide to manslaughter. (§ 192, sud (a).) However, the evidence must show that “the defendant’s reason was, at the time of his act, so disturbed or obscured by some passion -- not necessarily fear and never, of course, the passion for revenge -- to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.” (People v. Logan (1917) 175 Cal. 45, 49.)
Rather than discussing the elements and evidence pertaining to heat of passion, Simmons contends that because the trial court agreed to give an instruction on heat of passion, there was substantial evidence to support it.
The defense is available only where the defendant affirmatively demonstrates sufficient provocation. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) Thus, Simmons’s burden at trial was to show that the victim’s physical or verbal behavior was sufficiently provocative that it would have caused an ordinary person of average, sober disposition to become so inflamed that he or she would lose reason and judgment. (People v. Lee (1999) 20 Cal.4th 47, 59.)
Just before Simmons shot her, according to Doria, Isabel was sitting in a chair listening to music -- hardly provocative. Simmons had been angry all week because his aunt Stella -- “his own blood” -- had evicted him but not Isabel. According to Oscar, Isabel and Simmons had argued just before the shooting. He said to her, “[Y]ou guys can’t be fucking back here partying or doing drugs or smoking meth pipes, you gotta leave.” When she replied, “[S]hut the fuck up,” he said, “[O]en more word out of you and I’m gonna blow your head off.” She spoke again -- Oscar did not say what she said -- and Simmons shot and killed her. There was no other evidence of Isabel’s conduct.
No matter how grievous and insulting, words alone cannot be sufficient provocation to reduce an intentional homicide to manslaughter. (People v. Dixon (1961) 192 Cal.App.2d 88, 91; see, e.g., People v. Manriquez (2005) 37 Cal.4th 547, 586 [motherfucker]; People v. Najera (2006) 138 Cal.App.4th 212, 226 [faggot].) Certainly, “shut the fuck up” would not drive the average person into a homicidal rage, and there is no evidence of Isabel’s final words. There was simply no evidence of sufficient provocation by Isabel.
Thus, the state of the evidence was such that it was not reasonably probable that the jury would have found heat of passion even without Oscar’s remarks and evidence of prior spousal abuse. Further, it is unlikely that the jury would have believed that Simmons was not ordinarily a violent man. His aunt Stella told Detective Anderson that he had assaulted Isabel several times during the week before shooting her. Doria testified that she had seen Simmons punch Isabel in the head two days before the shooting, and that she had seen him hit her on the head twice before.
We conclude that Simmons has not met his burden to show a reasonable probability that the result would have been more favorable to him had his counsel objected to Oscar’s remarks or had he not elicited Dorothy’s spousal abuse testimony. (See Strickland, supra, 466 U.S. at p. 689; In re Jones, supra, 13 Cal.4th at p. 561.) Thus, Simmons has presented no basis for reversal, and we need not determine whether counsel’s performance was deficient in this regard. (See People v. Holt, supra, 15 Cal.4th at p. 703.)
D. Limiting Instruction
We do not agree that counsel failed to request an appropriate limiting instruction with regard to Oscar’s statements that Simmons had committed other crimes. At defense counsel’s request, the court gave the following limiting instruction to the jury immediately after playing the recording of Oscar’s interview: “To the extent that you heard any reference it [sic] in the tape, ladies and gentlemen, regarding other crimes not related to this crime, you’re not to consider that for any purpose in relation to this crime. Keep that in mind. It has nothing it [sic] to do with the charges in this crime.”
Simmons suggests that the limiting instruction was insufficient because it was not in the form of CALJIC No. 2.50, which limits the use of evidence of other crimes by instructing the jury not to consider such evidence to prove bad character or a disposition to commit crimes. The standard instruction goes on to state the exceptions the trial court may choose if applicable to the particular case. For example, the court may instruct the jury that such evidence may be considered to show intent, identity, motive, or consent. (CALJIC No. 2.50 (2005 rev.).) Here, the trial court allowed no exceptions, but instructed the jury “not to consider that for any purpose....”
Thus, counsel requested and obtained the broadest possible instruction short of having the evidence stricken. We presume that the jury followed the court’s instruction; thus, any danger of considering the evidence to prove a predisposition to commit crimes was dispelled. (People v. Lindberg (2008) 45 Cal.4th 1, 25-26.) Simmons has thus failed to show either that counsel’s performance was deficient, or that the instruction resulted in the deprivation of a fair trial. (See Strickland, supra, 466 U.S. at p. 687.)
E. Cautionary Instruction
Simmons contends that his counsel was ineffective because he did not request CALJIC No. 3.20 or CALCRIM No. 336. “In any criminal trial or proceeding in which an in-custody informant testifies as a witness, upon the request of a party, the court shall instruct the jury as follows: [¶] ‘The testimony of an in-custody informant should be viewed with caution and close scrutiny. In evaluating such testimony, you should consider the extent to which it may have been influenced by the receipt of, or expectation of, any benefits from the party calling that witness. This does not mean that you may arbitrarily disregard such testimony, but you should give it the weight to which you find it to be entitled in the light of all the evidence in the case.’” (§ 1127a, sud (b).) Both CALJIC No. 3.20 and CALCRIM No. 336 contain the required language.
Because the record does not reveal why defense counsel did not request this instruction, the claim of ineffective assistance of counsel must be rejected unless there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) A possible explanation appears in the words of section 1127a, subdivision (b): “The testimony of an in-custody informant should be viewed with caution....” (Italics added.) Oscar’s testimony was that he remembered none of his statements to the detectives. Because Oscar’s incriminating statements were made in his interview with detectives, not in his testimony, counsel could reasonably have been of the opinion that CALJIC No. 3.20 or CALCRIM No. 336 was not relevant, and that it was better not to call attention to the interview. We cannot presume that counsel acted unreasonably under such circumstances. (See People v. Huggins, supra, 38 Cal.4th at p. 252.)
Moreover, much of the same information is contained in CALJIC No. 2.20, which the court read to the jury. That instruction tells the jury that, in evaluating a witness’s testimony, they may consider factors including the ability of the witness to remember, the character and quality of the testimony, demeanor and manner of the witness, the existence or nonexistence of a bias, interest, or other motive, the attitude of the witness toward giving testimony, inconsistent statements, the witness’s prior felony conviction or past criminal conduct amounting to a misdemeanor, and whether the witness is testifying under a grant of immunity. While CALJIC No. 2.20 is not as specific as CALJIC No. 3.20 regarding the testimony of in-custody witnesses, it was sufficient to warn the jury to be cautious of Oscar’s testimony and statements.
Further, because Oscar’s statements were not the only evidence of Simmons’s intent to kill Isabel and Doria, the omission of CALJIC No. 3.20 was harmless. (See People v. Hovey (1988) 44 Cal.3d 543, 565 [refusal to give informant instruction harmless where informant’s testimony was not the sole basis for the conviction or was amply corroborated].) There was ample corroboration for Simmons’s admission to Oscar that he had intended to kill his victims. Other evidence established that, after shooting Isabel, Simmons turned the shotgun on the two witnesses under circumstances showing premeditation and deliberation. Danny testified that Simmons fired the gun at him as he fled the scene. Doria testified that Simmons told that her best friend was waiting for her, and then said, “You’re going for a long ride, but you’re staying here,” just before pointing the shotgun at her head and firing. A moment later, he remarked, “You’re still standing?” and then fired in the direction of her abdomen. Later, while in custody, Simmons enlisted Dorothy to attempt to dissuade the witnesses from testifying.
We conclude that Simmons has not overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Strickland, supra, 466 U.S. at p. 689.) We further conclude that it is not reasonably probable that the result would have been more favorable to Simmons had counsel requested an instruction based upon section 1127a. (See In re Jones, supra, 13 Cal.4th at p. 561.)
I. Admission of Priors
Simmons waived a jury trial on the allegations that he had had three prior felony convictions. After the verdicts were entered, he admitted the prior convictions, and admitted that he had not remained free from custody for a period of at least five years after the conclusion of those cases. As a result, the trial court enhanced the sentence in this case on each of the three counts by five years, pursuant to section 667, subdivision (a)(1). He now contends that his sentence must be vacated, because he did not waive his federal constitutional right to confrontation and privilege against self-incrimination.
“[B]efore accepting a criminal defendant’s admission of a prior conviction, the trial court must 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. [Citation.] Proper advisement and waivers of these rights in the record establish a defendant’s voluntary and intelligent admission of the prior conviction. [Citations.]” (People v. Mosby (2004) 33 Cal.4th 353, 356 (Mosby); In re Yurko (1974) 10 Cal.3d 857, 863 [extending Boykin/Tahl rights to admission of prior convictions].)
See Boykin v. Alabama (1969) 395 U.S. 238, 243; In re Tahl (1969) 1 Cal.3d 122, 132.
When, as here, a defendant has been informed of his right to a trial on the prior conviction, but has not been advised of his right to remain silent and to confront witnesses, the reviewing court may nevertheless find the admission voluntary and intelligent, if the totality of circumstances surrounding the admission supports such a conclusion. (Mosby, supra, 33 Cal.4th at p. 356.) The California Supreme Court found such circumstances in Mosby, noting that the defendant was represented by counsel, and had just undergone a jury trial at which he did not testify and his counsel had confronted witnesses. (Id. at p. 364.) From such facts, the court concluded that the defendant would have understood that his right to a trial on the priors would include the right to remain silent and the right of confrontation. (Ibid.)
As the Supreme Court stated, quoting the appellate court: “‘It would exalt a formula (Boykin-Tahl) over the very standard that the formula is supposed to serve (that the plea is intelligent and voluntary) to suggest that a defendant, who has 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.) We find the court’s reasoning equally applicable here. Considering the totality of the circumstances, and on facts very similar to those of Mosby, we also conclude that Simmons’s admission was voluntary and intelligent.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RUBIN, ACTING P. J., FLIER, J.