Opinion
H023803.
7-17-2003
THE PEOPLE, Plaintiff and Respondent, v. IVORY LOUIS THOMAS, Defendant and Appellant.
Defendant Ivory Louis Thomas was charged by complaint with assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1) [count 1]), violation of a protective order ( § 273.6, subd. (a) [count 2]); and battery ( §§ 242, 243, subd. (a) [count 3]). The complaint alleged that, in the commission of the assault, defendant personally inflicted great bodily injury under circumstances involving domestic violence ( §§ 12022.7, subd. (d), 1203, subd. (e)(3)). It also alleged that defendant had suffered two prior "strike" convictions ( §§ 667, subds. (b) — (i), 1170.12) and had served a prior prison term ( § 667.5, subd. (b)). Defendant pleaded no contest to the three substantive charges. After a court trial, the court found true the prior strike conviction allegation that involved a criminal threat ( § 422). After denying defendants request for dismissal of that "strike" prior pursuant to section 1385, the trial court sentenced defendant to eight years in state prison. The court dismissed the infliction of great bodily injury allegation, the second strike allegation, and the prior prison term allegation. On appeal defendant contends the denial of his "Romero" (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 917 P.2d 628) request that the trial court strike his prior strike conviction was an abuse of discretion. Alternatively, he claims "the trial of the strike prior allegation was tantamount to an admission, but no Boykin-Tahl waivers were obtained." (Emphasis and capitalization omitted.)
I. Facts
Shortly before 9 p.m. on May 21, 2000, Milpitas police officers arrived at the home of defendants wife after receiving a telephone call from her stating her 12-year-old son had threatened her with a knife and was throwing bricks through the windows of her residence. Upon arrival, officers made contact with defendants wife, who said defendant had violated her restraining order earlier that day by coming to her residence. The couple had been married for 21 years but had been separated for about one year. They have six children together.
Defendant came to the residence to confront his wifes current boyfriend, and the two men had a physical altercation upon his arrival. During the fight, defendant also hit his wife on her forehead. Defendant fled the residence after the boyfriend "beat" him up; the boyfriend also left to obtain medical attention for his lacerated knee. Defendants 12-year-old son then became upset at his mother, grabbed a knife, held it up to her, and said, "Im going to kill you bitch." Defendants wife called the police from a neighbors home.
The police interviewed defendants wife. During that interview, she indicated she felt dizzy and nauseous. When paramedics arrived, she said she had been knocked unconscious when defendant hit her head. She was transported to Kaiser for her injuries. A warrant issued in June 2000 for the defendants arrest, and he was arrested two months later.
Defendants wife also was the victim of the criminal threat that supported defendants prior strike conviction. We set forth a summary of those facts during our discussion of defendants contentions on appeal.
II. Discussion
A. Refusal to Dismiss Defendants Prior "Strike" Conviction
Prior to sentencing defendant made a motion under section 1385 to dismiss his strike in the interests of justice. On appeal he contends the trial court abused its discretion when it refused to strike his prior strike conviction because his "background does not indicate that he is the type of person for whom the three strikes law was enacted."
In Romero, the California Supreme Court held that "section 1385(a) does permit a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law [Penal Code section 667, subdivisions (b) to (i) and 1170.12]." (Romero, supra, at pp. 529-530.) However, the court noted that the trial courts discretion is "limited" and that it must consider not only the defendants constitutional rights but also the interests of society. (Id. at p. 530.) Thus, the court may not dismiss a strike for reasons of judicial convenience or economy; to reward the defendant for pleading guilty; or because of personal antipathy toward the purpose and consequences of the Three Strikes law. (Id. at p. 531.)
"In People v. Williams (1998) 17 Cal.4th 148, 948 P.2d 429 [], the Supreme Court further set forth principles which should guide a trial court in the exercise of its discretion under . . . section 1385 and on the standards under which an appellate court is to review that exercise of discretion. The court stated that in Romero, it had implied that "preponderant weight must be accorded to factors intrinsic to the [Three Strikes] scheme, such as the nature and circumstance of the defendants present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects. [Citation.] In deciding whether to strike a prior conviction, and in reviewing a trial courts ruling, . . . the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (Ibid.)" (People v. Barrera (1999) 70 Cal.App.4th 541, 553, 554.)
We review the trial courts refusal to dismiss prior felony conviction allegations in the furtherance of justice under a deferential abuse of discretion standard. (People v. Williams, supra, 17 Cal.4th at p. 162.) A trial court abuses its discretion if its order "exceeds the bounds of reason." (People v. Warner (1978) 20 Cal.3d 678, 683, 143 Cal. Rptr. 885, 574 P.2d 1237.) On appeal, "the burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citation.] Concomitantly, [ a] decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.] [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978, 928 P.2d 1171.)
In response to defendants written request that it dismiss the prior strike for making a criminal threat, the trial court considered that written request and also read and considered the original and supplemental probation reports, letters written on defendants behalf, and certificates he earned while in custody, including certificates for completion of educational programs and a 90-day "Aspirations Program" for inmates to maintain a productive lifestyle free from addiction. The court also heard a psychiatric nurse practitioner make a statement on behalf of defendant in which she said she had seen defendant at least every three weeks for the past year while he was incarcerated, that he had "worked very hard in the drug and alcohol program," that she saw a change in him, that "he is highly motivated in his recovery," and that she thought he had a "good chance of being successful in his recovery." Defendant then told the court he had been sober for the last 16 months, that he had to "quit trying to please everyone else" and had "to please and love himself first and foremost." Defendant said he realizes that he needs to deal with his alcohol problem and believes "its merited and warranted" for him to have another chance at rehabilitation. Defense counsel argued that defendants criminal history had been short, beginning in 1999, that his criminality was due to his alcoholism "disease," and he now has chosen to stop drinking and to have a "renewed sense of life." In response, the prosecutor argued that defendant is "clearly a case for the three strikes laws," pointing out defendants "continuing trend of abusing his wife, and abusing his children, and a violent past, [and a ] violent current offense."
After taking all of the above into consideration and the fact that "this was originally a three strikes case," the trial court selected "the high term," namely eight years in state prison, "based on the defendants violent conduct while he was on probation when this occurred, [and] that his prior performance on probation was unsatisfactory." The court then indicated that it was "denying the motion [to dismiss the prior strike]. [P] I am taking a look at the entire record of the defendant, as well as the defendants excellent progress in the last year, but I simply dont think that it overcomes all that has transpired both in this case as well as the other cases that have occurred. [P] The court feels that the eight year sentence is an appropriate sentence, in view of the circumstances of both [defendant] as an individual and with respect to the various factors in aggravation that are enumerated in the probation report as well as articulated factors the court has already mentioned."
Based on the above, the record establishes without reasonable doubt the trial court was aware of its discretion to strike the prior strike conviction under section 1385, subdivision (a). It chose not to do so and, instead, sentenced defendant to an upper four-year term for assault by means of force, which was doubled as a result of the prior strike, for a total of eight years. In making its decisions to deny probation, to sentence to the upper term, and to double that sentence as a result of the prior strike rather than dismissing the strike, the trial court did not consider improper or extrinsic factors or circumstances. Rather, the court expressly weighed relevant facts and circumstances and concluded that defendant was not outside the spirit of the Three Strikes law given the nature of defendants current offenses, the pattern and nature of his criminal past which showed a continuous violent past, his alcohol abuse and domestic violence tendencies, his multiple probation violations, and that fact that he was on probation for two similar violent felony convictions that involved the same victim in his current offense.
Defendant does not convince us that the courts ruling exceeded the "bounds of reason." (Williams, supra, 17 Cal.4th at p. 162.) The record reflects that defendants criminal history consists of three prior felony convictions and eight prior misdemeanor convictions, in addition to numerous reports of violent acts against his wife, children, family members, and friends. His felony convictions include making criminal threats to commit a crime resulting in death or great bodily injury, battery with serious bodily injury, and child endangerment. The misdemeanors include two counts of child endangerment, two counts of battery, driving under the influence, petty theft, and other vehicle code violations.
Contrary to counsels argument to the trial court, the record shows that, in 1990, San Jose police responded to a hospital regarding a domestic violence incident in which defendants wife reported that defendant had picked her up and thrown her onto the floor, that her head hit the floor, and that defendant had punched her right arm and her ribs. Although she had suffered bruised ribs, defendants wife did not want to prosecute him so the District Attorney had declined to issue a complaint.
San Jose police reports next show that, in 1995, defendant got into a fistfight and physically abused his 16-year-old daughter.
The probation report reveals that, in 1997, San Jose police officers found the front door damaged went to defendants house due to a family disturbance. Defendants wife said she had confronted him about his "asking one of her coworkers out" and that their argument escalated into a physical altercation in which he threw her onto the bed and pinned her down. When their 15-year-old daughter tried to intervene, defendant struck the daughter with his fist. He fled after his 11-year-old daughter threw a telephone at him and hit him in the head. The 15-year-old suffered a cut on her lip and swelling to her ear. Based upon this incident, defendant was convicted of one count of child endangerment.
In 1997, defendants nephew reported to San Jose police that defendant argued with family members at a relatives graduation and then grabbed the nephews neck and punched him in the jaw. The nephew could not defend himself due to a previously paralyzed back; when he fell to the ground, defendant stood over him and said he was "going to get your punk ass nephews" and that they "cant run or hide forever." Defendant then fled. The nephew suffered a swollen jaw and a cut under his lip; he was afraid defendant would act on his threats and felt he needed to buy a gun for protection.
In 1999, defendant drove his 11-year-old son to the home of Pastor Robert Harrison, who had hired defendant for some contracting work. Defendant showed up intoxicated and demanded the pastor rent a paint sprayer. Pastor Harrison told defendant to go home because he was drunk and to "sleep it off." Defendant then punched the pastor in the face. In response, Pastor Harrison grabbed defendant and pinned him to ground. Defendant struggled, wanting a fight. The son threw rocks at the pastor, which allowed defendant to flee. The pastor had difficulty breathing and was taken to the hospital.
The next day, defendants wife reported to police that the night before, defendant had pulled out some of her hair and had bruised her right arm and left knee, but she was afraid to call police. After defendant was arrested, he admitted hitting the pastor, claiming that his wife had said the pastor was trying to go to bed with her.
In June 1999, defendant committed the offense that resulted in his prior strike. When a San Jose police officer responded to a report of a family disturbance, the officer determined that defendant had fled the scene after violating a restraining order and assaulting several victims. Defendants wife said she arrived home from work to find defendant sitting in front of her house despite her restraining order against him, and she could tell he had been drinking. Defendant said he would kill his wife after she told him to leave. From inside the house, the wife heard a commotion outside and went to investigate. She found defendant kicking their 17-year-old daughter. When Gina, a friend of the wife, began to hit defendant from behind in a futile attempt to make him stop hurting his daughter, the wife ran away from the house and went around the block.
Gina said defendant had been at the residence drinking alcohol throughout the day, that he was extremely intoxicated, and that he and his wife began arguing when he threw a broom, striking Ginas leg. Gina threw the broom back, missing defendant, and defendant threw it again, this time striking Ginas 10-year-old daughter. While defendant and his wife continued to argue, one of their children swung an iron by its cord in an effort to keep defendant from striking anyone. As the iron was swinging, it struck Ginas daughters hand, cutting some of her fingers. When the child dropped the iron, defendant struck the child in the face with a closed fist, knocking her to the ground. Defendant then struck Gina in the face with a closed fist, similarly knocking her to the ground; defendant then kicked Gina in the stomach as she lay there.
Aware of defendants past violent behavior, defendants 17-year-old daughter tried to remove all the other children from the room. Her statement paralleled that of Gina, although she added that she jumped on defendants back and bit his cheek as he was kicking Gina and that defendant then threw her to the ground and kicked her in the head and stomach before he fled.
Defendants 13-year old daughter said she heard defendant threaten that he was going to kill his wife. She could hear defendant hitting Gina, and when she ran out of her room, she saw her older sister run towards defendant with a knife in her hand. Defendant took the knife and kicked and punched his older daughter. Ginas daughter then jumped on defendants back, but defendant pulled her off and hit her. Defendants 13-year old daughter tried to help Ginas daughter by hitting defendant from behind. He tried to hit his younger daughter, but she fled. Defendant then hit and kicked his 9-year old niece for no known reason. The 13-year old informed the officer that defendant had a shotgun hidden in the bedroom closet. That gun was collected for safekeeping.
Gina, her daughter, and the 17-year-old were taken by ambulance to the hospital, while medical personnel at the scene treated the 13-year-old and the injured niece.
Shortly after the threat and assaults, an officer found defendant asleep in the back of a car, and he was arrested without incident. After he was admonished pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, defendant said he entered into an argument with Gina and that he threw or pushed her to the ground in self-defense after she tried to hit him. He recalled nothing else as "it all went chaotic." Defendant said he knew he had to leave when he saw Gina calling the police since he was violating a restraining order.
A blood test at the preprocessing center revealed that defendants blood alcohol level was 0.19 percent.
Based upon the June 23, 1999 incident, defendant was convicted of making criminal threats, battery with serious bodily injury, two counts of misdemeanor child endangerment involving unjustifiable pain, and misdemeanor battery. He was ordered to serve one year in the county jail as a condition of probation.
In 1999, the family lost their home because of defendants addiction to alcohol. They moved in with defendants grandmother, and then defendant lost his job. From age 35 until his arrest in June 1999, defendant drank at least 18 beers a day. After surgery in 1993, he became addicted to Vicodin and Motrin until his June 1999 arrest. After he was released from custody in March 2000, defendant began drinking again.
In 2000, Milpitas police went to the home of defendants wife regarding a disturbance because one of her friends had reported that he had called her and had heard arguing, that the wife said defendant was choking her, and that defendant told his wife to hang up the phone. The police knocked for ten minutes before the wife responded. She denied defendant was there, claiming she only had spoken to him by telephone. She did admit that defendant was restricted from any contact, including by telephone, with her and her family pursuant to a restraining order. Their son was uncooperative and denied defendant was there, while a daughter said her brother had said defendant was there. Defendant denied having been at his wifes home or having talked with her by telephone.
Less than a month later, defendant violated the courts restraining order again and committed the current offenses. On May 21, 2000, while extremely intoxicated, he drove one of his sons to the home of his wife, where he saw her new boyfriends car. Enraged, he entered her home and physically assaulted the boyfriend. When the wife tried to stop defendant, he hit her numerous times, ultimately knocking her unconscious. Defendant said he had consumed 18 beers before driving there, but that he was sober enough to know he was violating a restraining order.
The probation report noted that "defendants behavior in the present matter is of significant concern" because, "not only was the defendant on probation for similar actions against the same victim, he violated his restraining order and admitted to drinking more than 18 beers prior to driving his son to the victims residence. The defendant admitted he is an alcoholic and is currently in treatment. He further stated this is his first attempt at treatment and only admitting he is an alcoholic in June 2000. This contradicts the defendants last pre sentence report dated October 15, 1999 when he stated he was an alcoholic and was in two separate substance abuse programs. As noted in his last pre sentence report, the defendant is stating all the appropriate concepts about staying clean and sober and addressing his anger issues, but he has made similar statements in the past which makes his sincerity questionable. [P] Although he has been granted probation in the past and has been ordered to attend[] the appropriate domestic violence counseling, he has failed to successfully deal with his anger which is seen by his recidivism. It is no longer believed the defendant is an appropriate candidate for probation . . . ."
The probation report listed one mitigating sentencing factor, namely, that defendant voluntarily acknowledged wrongdoing at an early stage of the criminal process. By contrast, it listed the following four aggravating factors: (1) defendant has engaged in violent conduct, which indicates a serious danger to society; (2) his prior convictions are numerous or of increasing seriousness; (3) he was on probation when the crime was committed; and (4) his prior performance on probation was unsatisfactory. Recognizing that "through years of violence and intimidation, the defendant has created children with emotional scars who will need long-term counseling to even have a chance at succeeding in life," the probation department recommended that the trial court impose the aggravated term of eight years.
Concerning defendants background, character, or prospects, the trial court recognized defendants prospect of recovery from his alcohol addiction and his process in his educational endeavors. However, the trial court reasonably found that those factors did not outweigh the long history of criminal conduct and that his record spoke more loudly concerning his character and future prospects than his recently found desire to change.
In sum, given the record in this case, defendant has not shown that the trial courts refusal to dismiss his prior strike was an abuse of discretion.
B. Failure to Obtain Waivers Pursuant to Bunnell
Defendant next contends his court trial for the prior strike allegation "was tantamount to an admission" (capitalization and emphasis omitted), and that the trial court therefore erred by failing to advise him of his constitutional rights pursuant to Bunnell v. Superior Court (1975) 13 Cal.3d 592, 119 Cal. Rptr. 302, 531 P.2d 1086. He argues that his case should be remanded for a new trial on the strike prior.
"In Bunnell the Supreme Court stated: A defendant who submits his case for decision on the basis of the transcript of the preliminary examination agrees that the transcript may be considered in lieu of the personal testimony of the witnesses who appeared at the preliminary hearing. [Citation.] In so doing the defendant surrenders his constitutional rights to trial by jury, to confront and cross-examine his accusers, and to freedom from compulsory self-incrimination. [Citations.] Consequently, In order to give maximum assurance that defendants are fully aware of the significant rights that they surrender in any submission and of the possible consequences thereof, such defendants shall be fully advised of these rights and consequences and . . . the record shall reflect such advice, waivers, and acknowledgment by the defendant of his understanding of these consequences in all submissions. (Bunnell v. Superior Court , supra, 13 Cal.3d at p. 605.)" (People v. Phillips (1985) 172 Cal. App. 3d 670, 673, 218 Cal. Rptr. 524.)
For the reasons stated below, we conclude that defendants case was not submitted within the meaning of Bunnell and that the trial court therefore had no duty to give the advisements and take the waivers required by Bunnell.
Defendant agreed to plea no contest to the three substantive charges with the understanding that he could receive a maximum prison term of nine years and eight months. Defense counsel said he understood that, upon the prosecutors motion, the trial court would strike one prior strike allegation, the prior prison term allegation, and the great bodily injury allegation. Counsel also said he understood "the other remaining strike prior" "will be set for court trial." (Italics added.)
In the course of advising defendant of the consequences of his plea, the trial court told defendant, "I have to do a Banell [ sic] waiver also. [P] . . . Do you understand that if I do find the prior strike true, its mandatory state prison, mandatory double the term thats selected; do you understand that?" When defendant answered affirmatively, the court asked, "Do you understand all these consequences Ive mentioned to you?" After defendant again answered affirmatively, the court said, "Im now going to advise you of your constitutional rights.
[P]These apply to all the allegations and a preliminary examination as well. [P] You have the right to a preliminary examination." After defendant, his counsel, and the prosecutor waived their right to a preliminary examination, the court explained to defendant that, after a preliminary examination, "if you were held to answer, charges would be filed against you in another department of the superior court. [P] And in that department, you would have the right to a jury trial, or if the prosecutor agreed to a court trial. [P] Do you understand and give up these rights?" After defendant, said, "Yes," the court continued, "You have the right to confront and cross examine witnesses who testify. [P] Do you understand and give up these rights?" After defendant said, "Yes," the court went on, "You have the privilege against self-incrimination, which is sometimes known as your right to remain silent. [P] You also have the right to testify, if you wish. Do you understand and give up these rights?" Defendant said, "Yes," and the court continued, "You have the right to subpoena witnesses to come to court to present a defense, as well as the right to a public and speedy trial. [P] Do you understand and give up these rights?" Defendant said, "Yes."
The trial court then stated the following: "Now, with respect to the allegation of the strike prior, you have all these rights as well, and its my understanding that youre not admitting that at this time, but its going to be heard at a court trial, that means, you would be giving up your right to a jury trial, youll be giving up your right to cross-examine and confront the witnesses who testify, and you may not be making the decision on whether or not youre going to testify. [P] This is whats commonly known as a Banell [sic] waiver, although, it may be somewhat inarticulably put on my part."
At that point, defense counsel interjected, "Its a straight court trial."
The trial court responded, "Never mind that. [P] With respect to the prior strike, do you understand and give up your right to a jury trial only as to that?" Again, defendant said, "Yes." (Italics added.)
After defendant pleaded no contest to the three substantive charges, the trial court set a court trial for the prior strike allegation. At the court trial, the prosecution entered two exhibits into evidence. The first was a copy of certified booking sheets and photographs from two prior arrests, including the prior strike. The second was a certified copy of the felony complaint, sentencing minutes, and probation report of the strike prior. Defense counsel stipulated that as to first exhibit, Peoples number 1, a qualified latent fingerprint examiner would testify that the fingerprints on the booking sheets are those of defendant. The prosecution then rested its case. Defense counsel made a motion for acquittal pursuant to section 1118 on the grounds that the underlying prior conviction is unconstitutional. He argued that the Three Strikes law, as enacted as part of Proposition 21, violates the single subject rule, the ex post facto doctrine, and that a prior serious or violent felony occurring before March 8, 2000, the enactment date of Proposition 21, does not constitute a strike. After denying the motion for acquittal, the trial court asked defense counsel, "Does the defense wish to proffer any evidence?" After defense counsel responded, "No evidence at this time[,]" the trial court noted that it had read the documents contained in Peoples 1, as well as the stipulation," and that it was "satisfied beyond a reasonable doubt as to the truth of the allegation with respect to the 422 prior, and find it to be a serious felony, and find that the allegation to be [sic] true beyond a reasonable doubt."
Defendants claim to the contrary, his court trial regarding the strike prior was not tantamount to an admission that required Bunnell advisements.
"In People v. Tran (1984) 152 Cal. App. 3d 680, 683, 199 Cal. Rptr. 539, footnote 2 [], the Court of Appeal ventured to define the term slow plea. It is an agreed-upon disposition of a criminal case via any one of a number of contrived procedures which does not require the defendant to admit guilt but results in a finding of guilt on an anticipated charge and, usually, for a promised punishment. Perhaps the clearest example of a slow plea is a bargained-for submission on the transcript of a preliminary hearing in which the only evidence is the victims credible testimony, and the defendant does not testify and counsel presents no evidence or argument on defendants behalf . . . . [P] Submissions that are not considered slow pleas include those in which (1) the preliminary hearing involves substantial cross-examination of the prosecution witnesses and the presentation of defense evidence or (2) the facts revealed at the preliminary examination are essentially undisputed but counsel makes an argument to the court as to the legal significance to be accorded them. [Citation.] [P] The wide variety of submissions that fall between these extremes, however, present troublesome classification problems. When the defendant reserves the right to testify or offer evidence and the record shows no sign of negotiations between defendant and prosecution, the submission may or may not be a slow plea . . . . [P] An appellate court, in determining whether a submission is a slow plea, must assess the circumstances of the entire proceeding. . . . A submission that prospectively appeared to be a slow plea may turn out to be part of a full-blown trial if counsel contested the sufficiency of evidence for those counts or presented another potentially meritorious legal argument against conviction. Conversely, a submission that did not appear to be a slow plea because the defendant reserved the right to testify and call witnesses or to argue the sufficiency of the evidence [citation] may turn out to be a slow plea if the defense presented no evidence or argument contesting guilt." (People v. Wright (1987) 43 Ca1.3d 487, 496-497 (Wright).)
Defendant did not enter a "slow plea" tantamount to an admission. Instead, he asked for and received a full court trial regarding the prior strike allegation, and his waiver of his right to a jury trial preceded, and was not a consequence of, the admission of the certified copies of the booking sheets, photographs, felony complaint, probation report, and sentencing minutes of the strike prior introduced by the prosecution. (People v. Phillips, supra, 172 Cal. App. 3d at p. 673.) Defendant did not give up his right to testify or his right to present additional evidence. At the end of the prosecutions case, the trial court asked counsel if there was any evidence to be presented by the defense; it was not a foregone conclusion that defendant had no evidence. Rather, here, as in People v. Chandler (1986) 186 Cal. App. 3d 200, 204, 230 Cal. Rptr. 492, defendant "merely waived the right to jury trial and thereafter the People presented documentary evidence regarding [his] prior conviction[]." Accordingly, defendant "was free to attack the validity of the documentary evidence, to subpoena and call witnesses in his defense or to take the witness stand in his own behalf. [Citations.]" (People v. Chandler, supra, 186 Cal. App. 3d at p. 204.) Defendant made no agreement that the court could decide the matter based solely upon these documents, and he presented to the court legal arguments challenging the prior strike conviction on the grounds that the prior strike violated the single subject rule and the ex post facto doctrine.
Having concluded that there was no Bunnell submission in defendants case, we conclude the trial court did not err in failing to give the advisements and take the waivers required by Bunnell.
III. Disposition
The judgment is affirmed.
We concur: Bamattre-Manoukian, Acting P.J., and Wunderlich, J.