Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F03218
CANTIL-SAKAUYE , J.
Defendant Joseph Stanley pled no contest to selling cocaine base (Health & Saf. Code, § 11352, subd. (a)) less than a month after a mistrial on the same charge. The trial court sentenced defendant to a stipulated low term of three years, and the prior drug conviction (§ 11370.2, subd. (a)) was dismissed.
Hereafter, undesignated statutory references are to the Health and Safety Code.
Having obtained a certificate of probable cause, defendant appeals, contending that his plea was taken without a proper advisement and waiver of his rights. We affirm.
BACKGROUND
Because they are not relevant to the appeal, the facts of the offense are briefly summarized.
An undercover police officer for the Sacramento Police Department offered to buy $20 of cocaine base from defendant. Defendant signaled to a man later identified as Clifford Johnson. Defendant and the officer walked up to Johnson, and defendant picked up a piece of paper containing cocaine base and gave it to Johnson, who then gave it to the officer. The officer gave Johnson two $10 bills.
On March 27, 2006, Defendant was tried on the charge of selling or furnishing cocaine base. The prior conviction was bifurcated and the defendant waived jury trial on the prior. On April 5 the jury could not reach a verdict and the trial court declared a mistrial. The trial court advised defendant he had the right to a new trial within 60 days. On May 3, 2006, defendant pled no contest to the charge in return for a stipulated low term of three years in prison. In taking the plea, the trial court never advised defendant of his right to confront witnesses against him, his right to a jury trial, or his privilege against self-incrimination.
DISCUSSION
Defendant contends that his no contest plea is invalid because the trial court never advised him of his rights. We reject the claim by examining the totality of the circumstances and finding that he knew of his rights.
Before a defendant enters a plea of guilty or no contest, the trial court must obtain a waiver of the defendant’s right to confront witnesses against him, his right to a jury trial, and his privilege against self-incrimination. (People v. Wright (1987) 43 Cal.3d 487, 491-492.) If the court fails to do so, the totality of circumstances must show the plea was voluntarily and intelligently given. (Ibid.; People v. Howard (1992) 1 Cal.4th 1132, 1175 (Howard).)
The trial court declared the mistrial on April 5, 2006. On May 3, 2006, defense counsel informed the court that defendant would plead no contest to the charge for a stipulated low term of three years with no additional time in two pending misdemeanor cases. The following exchange then took place between defendant and the trial court:
“The Court: Mr. Stanley, do you understand what your attorney said about what’s to be done with your case today?
“The Defendant: Yes, Your Honor.
“The Court: Is that what you intend to do?
“The Defendant: Yes, Your Honor.”
The trial court then asked for a factual basis for the plea, which the prosecutor provided. The court asked for any objections to the factual basis for the plea, and counsel stated that defendant had none.
The trial court then advised defendant of the consequences of the plea -- that he would be subject to parole at the conclusion of his prison term, he could be deported if not a citizen, and he would have to register as a drug offender. The court then took the no contest plea from defendant, and made the finding that “there is a factual basis for the pleas and the pleas and the waivers were made knowingly, intelligently and voluntarily.”
As defendant notes, there is no record of his ever being advised of his rights when the plea was taken. Citing People v. Mosby (2004) 33 Cal.4th 353 (Mosby), the Attorney General contends the totality of circumstances shows defendant knew of the rights he would give up by making the plea, and that he made a voluntary and intelligent waiver of his rights to confrontation, jury trial, and self-incrimination.
In Mosby, “immediately after the jury found defendant guilty of selling cocaine, defendant was told he had a right to a jury trial on the prior conviction allegation.” (Mosby, supra, 33 Cal.4th at p. 364.) The Supreme Court reasoned that “unlike a trial on a criminal charge, trial on a prior conviction is ‘simple and straightforward,’ often involving only a presentation by the prosecution ‘of a certified copy of the prior conviction along with the defendant’s photograph [or] fingerprints’ and no defense evidence at all. [Citation.] Here, [Mosby] who was represented by counsel, had just undergone a jury trial at which he did not testify, although his codefendant did. Thus, he not only would have known of, but had just exercised, his right to remain silent at trial, forcing the prosecution to prove he had sold cocaine. And, because he had, through counsel, confronted witnesses at that immediately concluded trial, he would have understood that at a trial he had the right of confrontation.” (Ibid.) The court also found the defendant’s record to be relevant because Mosby’s “prior conviction was based on a plea of guilty, at which he would have received Boykin-Tahl advisements.” (Id. at p. 365.)
The Supreme Court held that “defendant voluntarily and intelligently admitted his prior conviction despite being advised of and having waived only his right to jury trial.” (Mosby, supra, 33 Cal.4th at p. 365, fn. omitted.) “‘[H]e knew he did not have to admit [the prior conviction] but could have had a jury or court trial, had just participated in a jury trial where he had confronted witnesses and remained silent, and had experience in pleading guilty in the past, namely, the very conviction that he was now admitting.’” (Ibid.)
This was not the only holding in Mosby. The Supreme Court also addressed cases with a “[t]ruly silent” record. (Mosby, supra, 33 Cal.4th at p. 361.) Cases with a silent record “are those that show no express advisement and waiver of the Boykin-Tahl rights before a defendant’s admission of a prior conviction.” (Ibid.) In such a case, “we cannot infer that in admitting the prior the defendant has knowingly and intelligently waived that right [to jury trial on prior conviction allegations] as well as the associated rights to silence and confrontation of witnesses.” (Id. at p. 362; see People v. Christian (2005) 125 Cal.App.4th 688, 693-694, 696 (Christian).)
Mosby is not the last word from the Supreme Court on what constitutes a silent record. In People v. Hinton (2006) 37 Cal.4th 839, 875, defendant contended his admission of the truth of the prior-murder-conviction special circumstance was not voluntary or intelligent because no Boykin-Tahl admonition had been given. (Id. at p. 875, fn. 12.) The Supreme Court rejected the contention stating, “the validity of the admission depends not on express admonitions and waivers but on whether the admission was ‘voluntary and intelligent under the totality of the circumstances.’ [Citation.]” (Ibid.) The trial court’s failure to enumerate defendant’s rights did not present a “‘[t]ruly . . . silent record’ [citation], inasmuch as defendant stated that he had discussed the matter with his attorney and understood ‘the effect and consequence of admitting that prior conviction.’ [Citation.]” (Ibid.) The court further concluded that “defendant was indisputably aware of his right to a jury trial, right to confront witnesses, and privilege against self-incrimination with respect to the three other special-circumstance allegations in the information, and was in fact about to exercise those rights.” (Ibid.)
We find this case more analogous to Hinton than the silent record cases identified in Mosby. Slightly less than a month before the plea, defendant had been tried on precisely the same charge to which he pled no contest and was advised of all three Boykin-Tahl rights when he waived jury trial on his prior conviction at the start of the trial. When taking the waiver of the jury trial on the prior, the trial court informed defendant, “You have a right to testify, but you can’t be forced to testify. You have [a] right to remain silent on that. You have a right to be confronted by witnesses, and have your attorney cross-examine those witnesses on that prior just the same as you do on the charge itself.” (Italics added.)
Defendant pled no contest on May 3, 2006, the speedy trial advisement was given on April 5, 2006, and the advisement on the jury trial for the prior was given on March 27, 2006.
At the trial, defendant had a jury, saw his counsel confront the prosecution’s witnesses, and exercised his right to remain silent. When he was examined by a psychiatrist to determine whether he was competent to stand trial, defendant stated he understood that he had the rights to a trial by jury, to observe witnesses who testify against him, and to remain silent.
Applying Hinton, we find the record is not silent. Examining the totality of the circumstances, including the trial court’s advisement after mistrial of the defendant’s right to a new trial within 60 days, we conclude defendant knew his rights, and voluntarily waived them; the plea is valid. While we find no reversible error, this is not an endorsement of the trial court’s conduct in taking the plea. As our Supreme Court has stated, “we emphasize that explicit admonitions and waivers are still required in this state. We also reaffirm our caveat in Tahl that trial courts ‘would be well advised to err on the side of caution and employ the time necessary to explain adequately and to obtain express waivers of the rights involved. At stake is the protection of both the accused and the People, the latter by the assurance that an otherwise sound conviction will not fall due to an inadequate record.’ [Citation.]” (Howard, supra, 1 Cal.4th at p. 1179.)
DISPOSITION
The judgment is affirmed.
We concur: BLEASE , Acting P.J., RAYE , J.