Opinion
F071937
06-14-2018
THE PEOPLE, Plaintiff and Respondent, v. CONRAD GLENN WILKERSON, Defendant and Appellant.
Lauren E. Dodge, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Clifford E. Zall, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. F15900027)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge. Lauren E. Dodge, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant Conrad Glenn Wilkerson was convicted of felony corporal injury to a cohabitant and admitted five prior strike convictions, including a sexually violent offense that excluded him from the more lenient sentencing provisions of the Three Strikes Reform Act (Reform Act). He was sentenced to the third strike term of 25 years to life.
On appeal, defendant contends his conviction from the jury trial was barred by the principle of double jeopardy because he initially pleaded no contest pursuant to a plea agreement. While defendant entered a plea, the People determined prior to the sentencing hearing that he had prior strike convictions under an alias, whereas the plea agreement had been entered with the understanding that defendant did not have a prior record. The court granted the People's motion to withdraw from the plea agreement, and defendant's case proceeded to a jury trial. Defendant argues the People could not withdraw from the plea agreement and the court should have enforced the agreement instead of granting the People's motion.
Defendant next contends the amended information that was the basis for his jury trial failed to comply with the Reform Act because the People failed to specifically "plead and prove" that one of his prior strike convictions was for a sexually violent felony and thus excluded him from the more lenient sentencing provisions of the Reform Act.
Defendant further contends that his admissions to the prior conviction allegations were improper because the court failed to advise him of his constitutional rights.
We reverse defendant's admissions to the prior conviction allegations because of the court's failure to fully advise him of his constitutional rights and remand the matter for further appropriate proceedings, including retrial on the allegations and correction of his presentence credits. We find defendant's other issues are without merit.
FACTS
On October 19, 2014, defendant, N.E., and N.E.'s baby were staying at the Travel Lodge Motel in Fresno. Defendant was N.E.'s fiancé but was not the baby's father. N.E. asks for help
Shahrukh Dadabhoy owned and managed the motel and was working in the office that night. He knew that defendant, N.E., and the baby had been staying in a second floor room for several days.
Around 8:00 p.m., N.E. ran into the office. She was crying and asked Dadabhoy to call 911. Dadabhoy testified N.E.'s face was "messed up." There were bruises on N.E.'s face at the top of her cheek bone, outside the eyes. N.E. said that her baby was inside the motel room and the door was locked. 911 call
At 8:01 p.m., Dadabhoy called 911. Dadabhoy told the dispatcher that there was a "lady with the big bruise in her eye. I think there's a domestic fight going on there." As he spoke to the dispatcher, N.E. kept asking him for help. The dispatcher asked to speak with her, and Dadabhoy handed the telephone to N.E.
The dispatcher asked N.E. what was going on. N.E. said "a fight broke out between me, me and my dude," and her seven-month-old child was still in the motel room. N.E. identified herself, said that "Conrad Wilkerson" was her boyfriend, and he had hit her. N.E. said she had been too scared to call for help. The dispatcher told N.E. to stay at the motel's office until the police arrived.
The police arrive
Dadabhoy testified that when the police officers arrived, he gave them the master key to open the door to defendant's motel room.
Fresno Police Officer Moreno took defendant into custody at the motel. Defendant did not appear injured and did not ask for medical attention.
The trial evidence lacked any explanation of how N.E. recovered the baby, and whether defendant was in the motel room when the police arrived. The evidentiary gaps were most likely because the arresting officer was apparently unavailable for trial.
At the preliminary hearing, however, Officer Weigant testified that he was the first officer who arrived at the motel. He tried to open defendant's door with a key, but defendant had used the interior safety lock. Weigant could see into the room through a small opening in the door. He ordered defendant to open the door. Defendant was holding the baby and shouted, " '[F]**k you,' " in response. Weigant believed the baby was in imminent danger, and drew his weapon and kicked open the door. He ordered defendant to place the baby on the bed, and defendant again said, " '[F]**k you.' " Defendant finally put the baby on the bed. Weigant told N.E. to enter the room and grab the child. As N.E. reached for the baby, defendant lunged at her. Weigant stepped between N.E. and defendant, and N.E. picked up the baby and left. When Weigant tried to take defendant into custody, defendant resisted and a struggle ensued. Additional officers arrived and restrained defendant.
As we will explain in the procedural history, post, defendant was initially charged with resisting Officer Weigant, but that charge was dropped prior to trial.
Officer Maciel testified he spoke to N.E. at the motel about the incident. N.E. was upset, confused, and appeared to be in pain. N.E. was rubbing the side of her face and jaw. Maciel saw an injury on her face. N.E.'s cheek area was red, and it started to swell as he talked to her. The baby had no visible injuries.
Officer Maciel testified that N.E. said she had a verbal dispute with defendant because he was upset that she had taken a long time to return to the motel from somewhere. Defendant called her a bitch. N.E. mentioned defendant's sister, who had been killed as a result of a domestic violence incident, and told defendant: "You're gonna abuse me after your sister went through that?" Defendant got angry and told N.E. not to bring up his sister.
N.E. said the physical altercation began at that point. Defendant hit N.E. with his fist four times and inflicted the injuries to her face. N.E. said she was holding the baby when defendant hit her, and she tried to block some of the blows with her arm so the baby would not be injured. She felt her teeth crunch when defendant hit her face.
N.E. said that when defendant stopped hitting her, she left the baby in the motel room and went to the manager's office for help. Defendant closed and locked the motel room's door.
Paramedic Steven Alves examined N.E. at the motel. N.E. was very calm and cooperative, but appeared to have been crying. Alves observed the injuries on her face, "oral trauma" inside her mouth, and blood stains on her lips. N.E. said she had been hit in the head. N.E. said she had been drinking that night, and had three-quarters of a 24-ounce can of beer. N.E. said her teeth and jaw hurt.
About 20 minutes after the police arrived at the motel, a technician took photographs of N.E.'s facial injuries and they were introduced at trial. The photographs showed swelling and bruising on N.E.'s right temple area, discoloration around her right eye, and swelling above her cheekbone. She also had a small red mark on her right forearm.
The paramedics wanted to take N.E. to the hospital. She refused because there was no one to take care of the baby. Officer Maciel asked N.E. if she wanted to prosecute the case. N.E. said no. Maciel offered her an emergency protective order against defendant. She refused.
Bob Meade, a licensed marriage and family therapist, was called as a prosecution witness on intimate partner battering syndrome, which he described as "a situation where the victim has gone through enough abuse, verbal abuse, mental abuse, as well as physical, that they do things that sometimes seem so out of character for them." He testified generally about the type of abuse that results in this syndrome, the "cycle of violence," and relayed details about other cases. It was "very common" for victims of domestic violence to not want to prosecute the abuser and to decline a criminal protective order, and that such victims will hide to avoid going to court.
N.E. did not testify. Defendant did not testify, and the defense did not call any witnesses or introduce any evidence.
PROCEDURAL HISTORY
On appeal, defendant's primary argument is that his conviction must be reversed because it was barred by the doctrine of being placed twice in jeopardy, based on an initial plea agreement that was later withdrawn by the prosecution. As we will explain, the People moved to withdraw from the agreement when it was determined defendant had prior convictions under an alias. We thus turn to the procedural history of this case, which involved two case numbers.
PLEA PROCEEDINGS IN CASE NO. 14909802
Arraignment
On October 19, 2014, defendant was arrested at the motel.
On October 22, 2014, defendant was arraigned on a complaint filed in case No. F14909802. The court appointed the public defender to represent defendant.
The complaint is not part of the appellate record. The minute order states that defendant "David Glenn Wilkerson" pleaded not guilty to count 1, a felony violation of Penal Code section 273.5, subdivision (a), corporal injury to a spouse/cohabitant; count 2I, a felony violation of section 69, resisting an officer; and count 3, a misdemeanor violation of section 273a, subdivision (b), child cruelty. Plea agreement
All further statutory references are to the Penal Code unless otherwise indicated.
The complaint was not included in the appellate record. The minute order states that defendant denied "all priors and enhancements." As we will explain, however, this reference is erroneous because the prosecutor later stated that the complaint did not allege any prior conviction allegations because those were discovered after defendant entered his plea.
On October 28, 2014, defendant signed a felony advisement and waiver of rights in case No. F14909802. The written plea agreement identified defendant as "Conrad Wilkerson," and he signed it under that name.
The written agreement stated that "Conrad Wilkerson" would plead no contest to "Count 1 - § 273.5(a) and Count 2 amended to misdemeanor § 148(a)(1)." Defendant's attorney also signed the document. Plea hearing
Also on October 28, 2014, Judge Allen-Hill held a hearing on defendant's plea agreement. The minute order identified defendant as "David Glenn Wilkerson."
Defendant appeared with John Missirlian of Ciummo and Associates, who explained that conflict counsel had assumed representation in place of the public defender's office. Todd Eilers appeared for the People.
The court stated there was "some discrepancy" about defendant's name, and asked defendant to state his full name. Defendant replied, "Conrad Glenn Wilkerson." The court asked why the calendar identified him as "David" Wilkerson, and the complaint said "Conrad Glenn Wilkerson." Defendant said "David" was an alias, and that "Conrad Glenn Wilkerson" was his true name. The court made the true name finding.
Defense counsel said the prosecutor's plea offer was "no initial state prison, Count 1 as a felony, Count 2 will be reduced to a [section] 148 misdemeanor." The prosecutor agreed, and asked the court to amend count 2 to a violation of section 148, subdivision (a)(1).
The court advised defendant of the terms of the plea agreement and his constitutional rights, and further advised that he could be sentenced for up to four years for count 1 plus one year for the misdemeanor, for a total of five years. Defendant said he understood.
The court advised defendant that the matter would be referred for a probation recommendation and report, and "[i]f after reviewing that report and recommendation the Court concludes it cannot honor your agreement, seeks to impose a greater sentence than that to which you have agreed, you would be allowed to withdraw your plea, you could renegotiate with the District Attorney's office and/or set this matter for trial." (Iitalics added.)
Defendant said he understood. The parties stipulated to the police reports as the factual basis for the pleas.
The court found a factual basis for defendant's plea, and that it was knowing and voluntary. The court granted the prosecutor's motion to amend count 2 by interlineation.
Defendant pleaded no contest to count 1, corporal injury to a cohabitant, and count 2, misdemeanor resisting a peace officer.
The court granted the prosecution's motion to dismiss count 3, misdemeanor child cruelty, in light of the plea. The court vacated the preliminary hearing date, ordered preparation of a probation report, and set the sentencing hearing for December 2, 2014. The probation report
On November 25, 2014, the probation report was prepared in anticipation of defendant's sentencing hearing. The report identified defendant as "David Glenn Wilkerson," and stated he had aliases of "Conrad Glenn Wilkerson" and "David Conrad Wilkerson."
Defendant's statements
The probation report summarized the facts based on the police report. The probation officer spoke to the defendant at the jail on November 21, 2014. Defendant said he did not recall the incident because of his intoxication, but "he recalled slapping [the victim]; however, he is uncertain of why he slapped her." Defendant said he wanted to get the instant offense " 'over with' " so he could be released from custody and help the victim care for the child.
In issue I, post, we will address defendant's argument that the People could not withdraw the plea agreement because he detrimentally relied on it when he made these allegedly inculaptory statements to the probation officer.
Defendant's prior convictions
According to the probation report, defendant had a lengthy record based on "a local record check and as provided by the ... Federal Bureau of Investigation, California Identification and Investigation Bureau, and California Department of Motor Vehicles."
In 1975, defendant was convicted of misdemeanor resisting arrest and using a deadly weapon, and placed on probation.
In 1976, he was placed on probation for burglary.
In 1978, he was placed on probation for misdemeanor vandalism.
In 1980, defendant was convicted of felony first degree burglary and placed on probation; in 1982, he violated probation and was sentenced to four years in prison, and he was released on parole in 1983.
In 1984, defendant was convicted of misdemeanor petty theft and reckless driving, and placed on probation.
In 1985, defendant violated his parole and was returned to prison, and was released on parole later in 1985.
In 1986, defendant was convicted of felony assault by means likely to cause great bodily injury, and was placed on probation. Also in 1986, he was returned to prison for violating parole and was discharged from parole in 1987.
In 1988, defendant was convicted of burglary with a firearm enhancement; two counts of assault by means likely to cause great bodily injury; two counts of robbery with a firearm enhancement; two counts of rape by force or fear with a weapon enhancement; misdemeanor petty theft; two counts of misdemeanor wearing a mask for an unlawful purpose, with a prior prison term enhancement. He was sentenced to 36 years in prison.
Defendant was released on parole in 2008. He was returned to prison on a parole violation in 2009; paroled again in 2010, returned to prison later in 2010, and discharged in 2011.
In 2014, defendant was convicted of misdemeanor driving under the influence and driving without a license, and placed on probation.
The probation report concluded defendant was not eligible for probation, there were no unusual circumstances, and he should be sentenced to state prison. The People advise the court about defendant's criminal record
On December 2, 2014, the court convened the scheduled sentencing hearing. Defendant appeared with Mark Siegel of Ciummo and Associates. Tim Galstan appeared for the People; the probation officer was also present.
The prosecutor advised the court that the plea agreement had been reached "in contemplation of the fact that the defendant did not have a prior criminal history." Defense counsel did not object to this statement.
The prosecutor further stated that the probation report determined that defendant might have prior convictions under the name of "David Glenn Wilkerson." The prosecutor asked for a continuance to determine if that was true. The prosecutor said that if defendant had prior convictions, the People would not honor the plea agreement and would reset the matter for a preliminary hearing.
Defense counsel initially said he would submit on the prosecutor's request for a continuance, because Mr. Missirlian should handle the matter since he was more familiar with defendant's case. Counsel believed defendant would waive time.
The court asked defendant if he would waive time for the continuance. Defense counsel consulted with defendant, and said defendant refused to waive time and wanted to be sentenced immediately.
The prosecutor then asked the court not to honor the plea agreement and to send the matter back for a preliminary hearing. The prosecutor again explained the plea agreement was made with the understanding that defendant, known as "Conrad Wilkerson," did not have a prior criminal history. However, the probation department determined that defendant might have a criminal record under an alias.
The court granted the People's motion for a continuance and noted its earlier concerns about defendant's true name:
"This Court did, in fact, ask that there would be a true name finding in this matter and Mr. Wilkerson advised [the] Court that his name was, in
fact, Conrad Wilkerson. I think the People are going to have to demonstrate to the Court that the criminal record [in the probation report] is, in fact, the criminal record of the individual that is before the Court[,] David Glenn Wilkerson also known as Conrad David Wilkerson and David Conrad Wilkerson.
"The Court is going to give the People an opportunity to do that despite Mr. Wilkerson's objection. The Court is going to continue the matter ... so that the People can present proof demonstrating that mistake. [¶] ... [¶]
"The Court is giving the People leave to prove to the Court that the criminal record that is set forth in the Probation report belongs to the individual that is before the Court today."
The court continued the matter to December 19, 2014. Motion to set aside the plea agreement
On December 19, 2014, the court convened a hearing on defendant's plea agreement. Defendant was present with Mr. Missirlian, who had been present at the plea hearing. Mr. Galstan again appeared for the People.
The court said there had been an issue about defendant's true name, and asked defendant to state his true name for the record. Defendant said: "Conrad Glenn Wilkerson." The court found defendant also had an alias of "David Glenn Wilkerson."
The prosecutor asked the court not to proceed with sentencing, and to "bust" the plea and reset the matter because defendant had five serious and violent prior felony convictions "that were not known at the time of the plea in this case." The prosecutor had prepared a first amended complaint that alleged these prior convictions.
Defense counsel did not object to the prosecutor's statements about the existence of the prior convictions. Counsel said he had advised defendant that the People were prepared to file a first amended complaint, and the defense was ready to proceed on it.
"THE COURT: The motion is to set aside the plea based upon a mistake of fact with regard to Mr. Wilkerson's prior record. [¶ ] Your client is submitting—the defendant is submitting on that; is that correct?
"MR. MISSIRLIAN: That is correct, Your Honor.
"THE COURT: The Court, based on that submission, will grant the motion to withdraw the plea in this matter. The plea is withdrawn, it is set aside, that's the plea that was taken in this department back on October 28th of 2014." (Italics added.)
The first amended complaint; prior strike convictions
Immediately after the court vacated the plea, it accepted the first amended complaint for filing. The first amended complaint, dated December 19, 2014, charged defendant "Conrad Glenn Wilkerson" with count 1, felony corporal injury to a spouse/cohabitant; and count 2, felony resisting an executive officer, Officer Weigant (§ 69).
As noted above, Officer Weigant testified at the preliminary hearing that when he entered the motel room, defendant failed to obey his orders and resisted arrest. Weigant was apparently unavailable for trial and this count was later dropped by the People.
It was further alleged defendant had five prior strike convictions: first degree burglary in 1980 (§§ 459/460, subd. (a)); two robbery convictions in 1988 (§ 211); and two convictions for rape by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury, in violation of section 261, subdivision (a)(2), in 1988.
Defense counsel said he advised defendant the prior strike convictions had been added to the complaint, and that the third count from the original complaint, child cruelty, had been inadvertently omitted. Counsel said he had agreed that the prosecutor could file another amended complaint. The prosecutor said that he would likely file a second amended complaint at a later date.
Defendant pleaded not guilty and denied the allegations. Second amended felony complaint
On December 29, 2014, a second amended felony complaint was filed in case No. F14909802, charging defendant "Conrad Glenn Wilkerson" with the same two felony counts and alleging the same five prior strike convictions.
It was further alleged that defendant had one prior serious felony enhancement, based on the first degree burglary conviction in 1980; and four prior prison term enhancements, based on the two robbery convictions and two convictions for rape by force or fear (§ 261, subd. (a)(2)) in 1988.
Defendant pleaded not guilty and denied the allegations. Dismissal of case No. F14909802
On January 6, 2015, the court convened the scheduled preliminary hearing. Defendant was present with Mr. Missirlian. Miiko Anderson appeared for the prosecution.
The prosecutor moved for dismissal of the case without prejudice because a material witness was unavailable.
The court granted the motion to dismiss case No. F14909802 without prejudice. The prosecutor stated it would be refiled as case No. F15900027.
REFILING AS CASE No. F15900027
At the same hearing on January 6, 2015, the prosecution filed a felony complaint against defendant "Conrad Glenn Wilkerson" in case No. F15900027. Defendant was charged with count 1, felony corporal injury to a spouse/cohabitant, N.E.; and count 2, felony resisting an executive officer, Officer Weigant (§ 69).
The felony complaint alleged defendant had one prior serious felony enhancement based on first degree burglary in 1980; five prior strike convictions based on first degree burglary in 1980, two robbery convictions in 1988, and two convictions for rape by force or fear in 1988; and four prior prison term enhancements, based on the two robbery convictions and two forcible rape convictions.
Defendant pleaded not guilty and denied the special allegations. The court asked defendant for his true name and date of birth. Defendant said, "Conrad Glenn Wilkerson" and gave his birthdate. Amended information
On January 20, 2015, the preliminary hearing was held.
On January 27, 2015, the information was filed in case No. F15900027, that charged defendant with count 1, corporal injury to a spouse/cohabitant, N.E. (§ 273.5, subd. (a)); count 2, resisting an executive officer, Officer Weigant (§ 69); and count 3, misdemeanor child cruelty (§ 273a, subd. (b)), with the same prior conviction allegations: one prior serious felony enhancement, five prior strike convictions, and four prior prison term enhancements.
On April 1, 2015, an amended information was filed in case No. F15900027, charging defendant with count 1, felony corporal injury to a spouse/cohabitant (§ 273.5, subd. (a)); and count 2, misdemeanor child cruelty to N.E.'s baby (§ 273a, subd. (b)); it did not include a charge for resisting Officer Weigant (§ 69).
The amended information again alleged defendant had five prior strike convictions and five prior prison term enhancements, based on the same underlying prior felony offenses. It did not allege a prior serious felony enhancement. Trial and verdicts
In issue II, post, we discuss the allegations of the amended information in detail, and address defendant's argument that the People failed to "plead and prove" that he was subject to a third strike term because his prior conviction for forcible rape was a sexually violent offense that excluded him from the more lenient sentencing provisions of the Reform Act.
On April 1, 2015, defendant's jury trial began on the amended information. At trial, defendant was represented by Franz Criego of Ciummo and Associates.
On April 7, 2015, defendant was found guilty of count 1, felony corporal injury to a spouse/cohabitant, N.E. The jury was unable to reach a verdict on count 2, child cruelty to N.E.'s baby, and the court declared a mistrial.
On April 8, 2015, defendant waived his right to a trial and admitted all the prior conviction allegations. The court dismissed count 2 in light of the mistrial. Sentencing hearing
On May 18, 2015, the court conducted the sentencing hearing. The court stated that defendant had five prior strike convictions, noted that the most recent strike conviction occurred in 1988, and that "absent compelling circumstances [defendant] is eligible for third strike sentencing even though the current crime is not a serious or violent felony because of his priors, specifically the rape convictions." (Italics added.)
The prosecutor agreed with the court's proposed sentence, and stated that defendant also committed two parole violations and a new offense for driving under the influence.
Defense counsel argued defendant's criminal conduct had become less serious in nature and urged the court to dismiss the prior strike convictions. Counsel asserted the current offense occurred because N.E. "received what is commonly referred to as a slap upside the head, which resulted in a traumatic condition; not a black eye, not a broken nose, not a broken jaw or otherwise. It was a lump on the side of her face," and defendant should not receive a life sentence.
Defense counsel further stated that the People had initially offered defendant a "no initial state prison" plea agreement, but "that particular offer was withdrawn at the time of sentencing initially, and he is now back in court looking at 25 [years] to life."
The prosecutor replied that defendant was initially offered a plea agreement without prison time because "we were not aware of his other name and the strike priors. So I mean, I know that I never offered him no initial state prison." Defense counsel did not dispute the prosecutor's description of the original plea agreement.
The court stated it reviewed the file in the original case No. F14909802, and found the complaint in that case did not allege any prior convictions, defendant entered a plea to that complaint on October 28, 2014, and something "led to the People's discovery of his priors or a more thorough search under aliases revealed at some ... later time, but in any event that offer was quickly withdrawn once the People became aware that he had five prior strike offenses. So I don't believe the People ever assessed that a person with this history, committing this crime, was worthy of a no initial state prison sentence and once they became aware of his priors they adjusted it accordingly."
The court made extensive findings and rejected defendant's request to dismiss the prior strike convictions. The court reviewed the underlying facts for defendant's convictions in 1988 for two counts of robbery and two counts of rape, and also rejected defense counsel's characterization of defendant's prior and current criminal conduct.
"I found the conduct in the underlying case where [defendant] picked up his two robberies and two rapes was just shocking in its callousness and its predatory nature. The first rape victim is in a car with a date on Christmas night when [defendant] advances on the car as the two are engaged in sexual activity in the back of the car. The female's getting dressed, sees a shadow, tells the male, who immediately jumps in the front seat. She starts trying to dress. He yells to the person to move, trying to get the car started. [Defendant] breaks the car window with his knife, cutting the male in the process, reaches in and opens the door, forcing the male to the passenger side, holding the knife to his face, robs him and the female of money and jewelry, puts a shirt over the male's head and tells him if he takes if off he'll kill both of them. Then he proceeds to rape the female at knife point, telling her if she did not cooperate he would stick the knife inside her stomach....
"Just over a week later another male and female in a parked car see him standing outside the window. He breaks the car window, grabs the female's hair as she starts the car, tells her he's going to kill her, reaches over from the passenger seat. The male punches him in the face, she drives off, and the two call the police.
"Fortunately defendant was found with the knife, black gloves, and dark blue stocking cap and skull cap, and is arrested, charged, and convicted of those crimes. This is in addition to a previous residential burglary in 1980. Particularly troubling is the predatory nature of those crimes where he preys on people in a car at night, successfully does so and rapes a woman twice, and steals the items from the two and threatens them both, and then just eight days later has to try the same act, and fortunately
the woman drives away, though he did manage to at least attempt a similar crime. Those crimes are so horribly violent and disrespectful of human life that it is very hard for me to accept that someone who is released from prison on those crimes and then subsequently commits two parole violations and picks up a new misdemeanor offense in the meantime is anyone other than the person who committed that crime in 1988. I'm not aware of any remorse, other than his remorse for the fact that he's facing 25 to life. His mistaken belief that somehow I could hang that over his head and let him do probation, which the law does not allow, and so I'm left with a person who initially, after a burglary, was given a diagnostic and a shot at probation and violated, went to prison, was paroled, picked up a stream of crimes and parole violations, including an assault before the instant offenses that I described in 1988; two assaults by means, two robberies - I'm sorry - two robberies, two rapes, and then subsequent parole violations and convictions. This is a person who, for the victim's benefit in this case might well have been much more, had she not fled and brought help. I don't think the public expects us to wait for [defendant] to kill someone or injure someone worse than he injured this woman before the Court imposes a sentence consistent with his history, and the fact that this is a violent crime against a female by a person who has twice raped females, a female, and twice attacked women, two separate women, in cars at night. It is, to my mind, a harsh sentence for a crime that results in a knot on the side of her head, but given the perpetrator and his history, it is the appropriate sentence."
The court sentenced defendant to the third strike term of 25 years to life. The court stayed the prior prison term enhancements.
DISCUSSION
I. Defendant's Jury Trial was not Barred by the Prior Plea Agreement
Defendant contends his trial counsel was prejudicially ineffective for failing to object to the filing of the information and his subsequent jury trial, and should have entered a plea of once in jeopardy.
Defendant asserts that jeopardy attached when he entered his plea to the complaint in exchange for no prison time, and the court accepted it. Defendant argues the prosecution had no basis to withdraw from the plea agreement, and the court lacked statutory authority to withhold its approval of the agreement. Defendant argues counsel was ineffective for failing to assert that the subsequent jury trial violated his constitutional right not to be placed twice in jeopardy.
A. Jeopardy
"Generally, a person is in legal jeopardy for an offense when placed on trial on a valid accusatory pleading before a competent court. [Citation.] But in cases that do not go to trial, '[o]rdinarily, jeopardy attaches when a defendant enters a plea of guilty, or when the court imposes sentence following the entry of that plea. [Citations.]' [Citations.]" (People v. Halim (2017) 14 Cal.App.5th 632, 642.)
The premise for defendant's double jeopardy argument is that he validly entered his plea to the complaint, it was accepted by the court, and both the court and the prosecution lacked any statutory authority to vacate the plea or withdraw from the agreement. We thus begin with the well-settled standards for plea agreements to determine whether jeopardy attached when defendant entered his plea.
B. Plea Agreements
"[T]he process of plea negotiation 'contemplates an agreement negotiated by the People and the defendant and approved by the court. [Citations.] Pursuant to this procedure the defendant agrees to plead guilty [or no contest] in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged. [Citation.] This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment [citation], by the People's acceptance of a plea to a lesser offense than that charged, either in degree [citations] or kind [citation], or by the prosecutor's dismissal of one or more counts of a multi-count indictment or information....' " (People v. Segura (2008) 44 Cal.4th 921, 929-930 (Segura).)
"The agreement must then be submitted to the trial court for approval. The court must tell the defendant that the court's acceptance of the proposed plea is not binding, that the court 'may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval,' and that if the court does withdraw its approval the defendant may withdraw the plea. [Citation.]" (People v. Martin (2010) 51 Cal.4th 75, 79 (Martin); § 1192.5.)
Section 1192.5 states:
"Upon a plea of guilty or nolo contendere to an accusatory pleading charging a felony, other than a violation of paragraph (2), (3), or (6) of subdivision (a) of Section 261, paragraph (1) or (4) of subdivision (a) of Section 262, Section 264.1, Section 286 by force, violence, duress, menace or threat of great bodily harm, subdivision (b) of Section 288, Section 288a by force, violence, duress, menace or threat of great bodily harm, or subdivision (a) of Section 289, the plea may specify the punishment to the same extent as it may be specified by the jury on a plea of not guilty or fixed by the court on a plea of guilty, nolo contendere, or not guilty, and may specify the exercise by the court thereafter of other powers legally available to it.
"Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.
"If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so. The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.
"If the plea is not accepted by the prosecuting attorney and approved by the court, the plea shall be deemed withdrawn and the defendant may then enter the plea or pleas as would otherwise have been available.
"If the plea is withdrawn or deemed withdrawn, it may not be received in evidence in any criminal, civil, or special action or proceeding of any nature, including proceedings before agencies, commissions, boards, and tribunals."
" 'Judicial approval is an essential condition precedent to the effectiveness of the "bargain" worked out by the defense and prosecution. [Citations.] But implicit in all of this is a process of "bargaining" between the adverse parties to the case - the People represented by the prosecutor on one side, the defendant represented by his counsel on the other - which bargaining results in an agreement between them. [Citation.]' [Citations.]" (Segura, supra, 44 Cal.4th at p. 930; Martin, supra, 51 Cal.4th at p. 79.)
"A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] 'The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citation.] If contractual language is clear and explicit, it governs. [Citation.] On the other hand, "[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it." [Citations.]' [Citation.] 'The mutual intention to which the courts give effect is determined by objective manifestations of the parties' intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. [Citations.]' [Citations.]" (People v. Shelton (2006) 37 Cal.4th 759, 767.)
"Acceptance of the agreement binds the court and the parties to the agreement. [Citations.] ' "When a guilty [or nolo contendere] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement." ' [Citations.]" (Segura, supra, 44 Cal.4th at pp. 930-931, fn. omitted; Martin, supra, 51 Cal.4th at p. 79.)
Thus, "[d]ue process requires that both the defendant and the prosecution, abide by the terms of the plea agreement and that the punishment imposed not significantly exceed that which the parties agreed upon. [Citation.]" (People v. Silva (2016) 247 Cal.App.4th 578, 587.)
"However, there is an out for the trial court. The court may withdraw its initial approval of the plea at the time of sentencing and decline to impose the agreed upon sentence, 'so long as the parties can be restored to their original positions.' [Citations.] If the court withdraws its initial approval, it must inform the defendant that he or she has the right to withdraw the plea and allow the defendant to do so; it cannot merely alter the terms of the agreement by imposing punishment significantly greater than that originally bargained for. [Citations.] Put another way, the trial court may not 'unilaterally modify[] the terms of the bargain without affording ... an opportunity to the aggrieved party to rescind the plea agreement and resume proceedings where they left off.' [Citation.] This rule is not new. It has long been the rule that if the trial court disapproves of the negotiated disposition and seeks to modify it, the court must expressly tell the defendant he or she can withdraw the plea if the defendant is unwilling to accept the modified terms. [Citation.] 'The required explanation and defendant's right to have his plea withdrawn apply both at the time of entering the plea and at sentencing.' [Citation.]" (People v. Silva, supra, 247 Cal.App.4th at p. 587, italics added; Segura, supra, 44 Cal.4th at p. 931.)
At the time of sentencing, the court thus " 'has broad discretion to withdraw its prior approval of a negotiated plea.' [Citation.] ' "Such withdrawal is permitted, for example, in those instances where the court becomes more fully informed about the case [citation], or where, after further consideration, the court concludes that the bargain is not in the best interests of society." ' [Citation.]" (People v. Silva, supra, 247 Cal.App.4th at pp. 587-588, italics added in original.)
C. Analysis
The entirety of the record shows that defendant and the People entered into a plea agreement as contemplated by section 1192.5. The court retained discretion to grant the prosecution's motion to vacate the plea and also to withdraw its approval of the agreement at the time of the scheduled sentencing hearing.
The complaint charged defendant with count 1, felony corporal injury to a spouse/cohabitant (§ 273.5, subd. (a)), count 2, felony resisting an officer (§ 69), and count 3, misdemeanor child cruelty (§ 273a, subd. (b)); it did not include any prior conviction allegations. Defendant and the People entered into a plea agreement whereby defendant would plead no contest to count 1 as alleged in the complaint; no contest to an amended count 2, a misdemeanor violation of section 148, subdivision (a)(1), resisting or obstructing an officer; and count 3 would be dismissed.
At the start of the plea hearing, the court was concerned about defendant's true name and whether he had an alias. In response to the court's questions, defendant said his true name was Conrad Glenn Wilkerson, and David Wilkerson was an alias.
The court properly advised defendant of his constitutional rights and, more importantly, that it retained discretion under section 1192.5 to withdraw its approval of the plea agreement after preparation of the probation report and before he was sentenced: "If after reviewing that report and recommendation the Court concludes it cannot honor your agreement, seeks to impose a greater sentence than that to which you have agreed, you would be allowed to withdraw your plea, you could renegotiate with the District Attorney's office and/or set this matter for trial." Defendant said he understood, waived his rights, and entered his no contest pleas.
At the scheduled sentencing hearing, the prosecutor advised the court that the plea agreement had been reached "in contemplation of the fact that the defendant did not have a prior criminal history." Defendant did not object to this statement.
The prosecutor further stated that, based on information within the probation report, defendant might have prior convictions under the alias of David Glenn Wilkerson. The prosecutor said that if defendant had prior convictions, the People would not honor the plea agreement and would reset the matter for a preliminary hearing, and asked for a continuance to confirm the existence of the prior convictions. Defendant objected to a continuance and asked to be sentence, but did not dispute the prosecutor's statement about the terms of the plea agreement.
The court granted the continuance and again expressed its concern as to whether defendant had honestly stated his true name at the prior plea hearing.
When the court reconvened the later proceedings, the prosecutor stated defendant had five prior strike convictions "that were not known at the time of the plea in this case," and asked to withdraw from the plea.
Defense counsel, who had represented defendant at the plea hearing, did not object or dispute the prosecutor's statements about the terms of the plea agreement - that it had been based on the understanding that defendant did not have a prior criminal record. Instead, counsel said he had advised defendant that the People were prepared to file a first amended complaint, the defense was ready to proceed on it, and counsel submitted the matter. Based on that submittal, the court granted the motion to withdraw the plea, and reset the matter for the filing of a new complaint and a preliminary hearing.
"[A] plea bargain is ineffective unless and until it is approved by the court. [Citations.]" (In re Alvernaz (1992) 2 Cal.4th 924, 941.) Section 1192.5 "expressly reserves to the court the power to disapprove the plea bargain, provided the defendant is given the opportunity 'to withdraw his or her plea if he or she desires to do so.' [Citation.]" (People v. Kim (2011) 193 Cal.App.4th 1355, 1362.) "[T]he sentencing court is not bound by the bargain, but is empowered to disapprove it and deny it effect, at least so long as the parties can be restored to their original positions." (Id. at p. 1360, italics in original.) "In exercising their discretion to approve or reject proposed plea bargains, trial courts are charged with the protection and promotion of the public's interest in vigorous prosecution of the accused, imposition of appropriate punishment, and protection of victims of crimes. [Citation.] For that reason, a trial court's approval of a proposed plea bargain must represent an informed decision in furtherance of the interests of society [citation]; as recognized by both the Legislature and the judiciary, the trial court may not arbitrarily abdicate that responsibility." (In re Alvernaz, supra, 2 Cal.4th at p. 941.)
In People v. Thomas (1994) 25 Cal.App.4th 921 (Thomas), the defendant was charged in a misdemeanor complaint with driving under the influence after having suffered two such prior convictions, and with driving with a blood-alcohol level of .08 percent or more. At arraignment, he and the prosecutor entered into a negotiated disposition and agreed to plead guilty to driving with a blood-alcohol level of .08 percent or more, and to admit the two prior convictions, with the remaining count to be dismissed. The defendant waived his rights; the trial court accepted the plea and admissions and dismissed the remaining count. The court immediately started to impose sentence, but discovered that the case represented defendant's defendant's fourth conviction. The court set aside the plea on the ground that the negotiated disposition was based on a false premise. The prosecutor subsequently dismissed the misdemeanor complaint and filed a felony complaint. After a trial, the defendant was convicted of felony driving under the influence with three prior offenses. On appeal, the defendant claimed that the filing of the felony complaint violated the prohibition against double jeopardy, and that the lower court lacked the authority to withdraw an accepted guilty plea on its own motion. (Id. at pp. 923-924.)
Thomas rejected defendant's arguments and held that "[i]n taking a guilty plea and approving a negotiated disposition, the trial court retains the inherent power to withdraw its approval at the time of sentencing. 'Every court has inherent power to prevent abuse of its process and to conform its procedures to the fundamentals of due process.' [Citation.] This rule allows a trial court '... to set aside the plea [of guilty] on its own initiative prior to the entry of judgment.' [Citations.] A trial court should not have to honor a tentative commitment based on a false premise. Crediting appellant's contention would require the trial court to sentence a defendant contrary to its conscientiously articulated view that such a sentence would not be in the interests of justice. 'Our courts are not gambling halls but forums for the discovery of truth.' [Citations.] Here the truth was discovered prior to the finality of judgment." (Thomas, supra, 25 Cal.App.4th at p. 925-926.)
As in Thomas, the court in this case had statutory authority to withdraw its approval of the plea agreement and grant the prosecution's motion to vacate upon being informed that defendant had a lengthy record of prior convictions. While defendant initially demanded to be sentenced, he did not object to the prosecutor's statement that the plea agreement was based on the understanding that he did not have any prior convictions. Even if defendant had not submitted the matter, the court retained discretion to withdraw its approval of the plea agreement based on defendant's apparent misrepresentation about his true name and his prior record. The record indicates the court was about to do vacate the plea, and instead granted the prosecution's motion based upon defendant's concession about the terms of the plea agreement and submission of the matter.
Defendant asserts that while the prosecutor later claimed that the plea was conditioned on the absence of defendant's criminal history, there is no evidence that such a condition was part of the plea. As explained above, however, defendant was represented by the same attorney at both the plea hearing and the subsequent hearing where the court vacated the plea agreement. Defendant never objected to the prosecutor's statement that the plea was originally conditioned on the absence of a prior criminal history.
Defendant argues that even if the court accepted the plea pursuant to section 1192.5, the court never withdrew its approval of the bargain and instead accepted defense counsel's acquiescence to the prosecution's motion to withdraw. Defendant thus asserts that "there is nothing to suggest the trial court would have withdrawn its approval of the plea bargain based on the prosecutor's mistake of fact [about his prior convictions]. Aware of its discretion, the court might have instead taken the position that the prosecutor should have borne the risk of its own mistake and upheld the plea bargain ...."
To the contrary, there is nothing in the record to indicate the court was going to order the prosecutor to abide by the plea agreement. When the prosecutor initially advised the court that defendant may have prior convictions under an alias, the court overruled defendant's demand to be immediately sentenced and granted a limited continuance so the prosecutor could determine if the probation report accurately set forth defendant's true name and prior record. At the subsequent hearing, the record demonstrates the court was about to withdraw its approval of the plea bargain but instead granted the prosecutor's motion to vacate based upon defendant's submittal of the matter.
1. Mistake of Fact
Defendant argues that the prosecutor should have to bear his "mistake of fact" about his prior record since defendant admitted his alias at the plea hearing, and the prosecutor could have checked his prior record under both names before entering into the plea agreement.
Defendant's "mistake of fact" argument is based on Amin v. Superior Court (2015) 237 Cal.App.4th 1392 (Amin), where the defendant was charged with misdemeanor sexual assault offenses. The prosecutor and the defendant reached a plea agreement, part of which stated that the agreement would settle all pending incidents against defendant that were mentioned in the police reports. The defendant entered the plea and he was sentenced in accordance with the agreement. After the sentencing hearing, the prosecutor learned that the defendant had been suspected of sexually molesting two children, that case had been mentioned in the police reports, and the police had obtained evidence to charge him with the offenses after the defendant had been sentenced. The prosecutor filed a new complaint against the defendant based on the molestation of the two children. The defendant moved to dismiss the complaint and argued the new case had been resolved by the plea agreement in the prior case. The trial court found the prosecutor had been negligent in failing to read the original police reports about the pending cases against the defendant, but denied the defendant's motion to dismiss. (Id. at pp. 1398-1400.)
Amin held that the defendant's original plea agreement was valid, it could not be rescinded based on the prosecutor's mistake of fact in failing to read the police reports about the pending cases against him, and the prosecution had to "bear the risk of the mistake that resulted from [the prosecutor's] failure to read the [police reports] more carefully." (Amin, supra, 237 Cal.App.4th at p. 1404.) Amin emphasized that the prosecutor could have learned the accurate facts prior to entering the agreement, and held the prosecutor's "purported ignorance of or mistake about that fact will not suffice to void the agreement. [Citations.]" (Id. at p. 1405.) The prosecutor's failure to take care prior to entering the agreement was "not grounds for excusing compliance with its stated terms." (Id. at p. 1406.) Amin further explained that " 'to allow the state to revoke plea agreements made through negligence on the part of the district attorney's office might [well] encourage such negligence. Requiring the district attorney to know the pertinent facts in a given case before entering a plea bargain will prevent such negligence and will ensure fairness to both the [s]tate and the defendant.' [Citation.]" (Id. at p. 1409.)
In contrast to Amin, defendant's plea in this case was not yet final. He had not been sentenced and the court had not accepted the plea agreement. Defendant's plea was not final without judicial approval, and the court retained discretion to withdraw its approval at the time of the sentencing hearing as long as the parties could be restored to their original positions. (Segura, supra, 44 Cal.4th at pp. 930-931; Martin, supra, 51 Cal.4th at p. 79; People v. Silva, supra, 247 Cal.App.4th at p. 587.)
2. Detrimental Reliance
Defendant next contends that the court could not withdraw its approval of the plea because he could not be restored to his original position. Defendant asserts that he detrimentally relied on the plea agreement because he made inculpatory statements to the probation officer in the postplea report, and those statements could have been used to impeach him if he had testified at trial.
"The critical point of no return for enforcement of a plea bargain is the entry of plea or detrimental reliance." (People v. Cantu (2010) 183 Cal.App.4th 604, 607; People v. Rhoden (1999) 75 Cal.App.4th 1346, 1354.) " 'A defendant relies upon a [prosecutor's] plea offer by taking some substantial step or accepting serious risk of an adverse result following acceptance of the plea offer. [Citation.] Detrimental reliance may be demonstrated where the defendant performed some part of the bargain. [Citation.] For example, a defendant who provides beneficial information to law enforcement can be said to have relied to his detriment. [Citation.] Reliance may not be shown "by the mere passage of time." [Citation.] Also, it may not be shown where the defendant stopped preparing his defense, absent a showing of specific prejudice. [Citation.] Nor may detrimental reliance be shown by the prospect of a longer sentence. [Citation.]' [Citation.]" (People v. Rhoden, supra, 75 Cal.App.4th at p. 1355, italics added in original.)
Defendant's "detrimental reliance" argument is based on his alleged postplea "damaging admissions" to the probation officer (AOB 26). According to the probation report, defendant told the probation officer that he did not recall the incident with N.E. because of his intoxication, but "he recalled slapping [the victim]; however he [was] uncertain of why he slapped her." Defendant contends that he would have been impeached with these statements if he had testified at trial.
In People v. Pacchioli (1992) 9 Cal.App.4th 1331 (Pacchioli), the defendant pleaded guilty and made statements to the probation officer, and then was allowed to withdraw his guilty plea. (Id. at pp. 1333, 1335.) The trial court excluded the postplea statements as substantive evidence of guilt, but held they could be used to impeach the defendant if he took the stand and contradicted his earlier statements. (Id. at pp. 1335-1337.) Pacchioli agreed that the defendant's statements could not be used as substantive evidence of guilt, and were admissible solely for impeachment. (Id. at p. 1341.)
In People v. Scheller (2006) 136 Cal.App.4th 1143, the defendant entered a plea and made statements to the probation officer. The defendant later withdrew the plea and went to trial, and the statements were introduced as substantive evidence of his guilt. Scheller agreed with Pacchioli, and held the defendant's postplea statements to the probation officer were inadmissible as substantive evidence of his guilt: "Although the statements could not be unmade, the trial court could effectively restore the status quo and bring about substantial justice by excluding them. It follows that allowing the prosecution to use them as substantive evidence against defendant violated due process." (Scheller, supra, at p. 1152.)
In this case, defendant has not shown that he detrimentally relied or was otherwise prejudiced by the court's vacation of the plea agreement prior to sentencing. The court vacated the plea agreement and restored the parties to the status quo. When compared to the prosecution's evidence in this case, defendant's statements to the probation officer were not of a quality that would have prevented him from testifying at his subsequent jury trial. Officer Maciel testified that N.E. said defendant was upset, they argued, he had punched her in the face several times, and he inflicted the obvious injuries to her face. Both Maciel and the paramedic testified about N.E.'s condition, and photographs of her facial injuries were introduced. The paramedic also testified that N.E. said she had been drinking that night.
If defendant had testified at trial and denied hitting N.E., he would have been subject to impeachment based on N.E.'s statements that he hit her. While N.E. did not testify, she made these statements to the motel manager, the 911 dispatcher, the law enforcement personnel who arrived at the scene, and the paramedics, and the prosecution introduced the photographs of her face.
The record suggests that defendant may have decided not to testify because he faced impeachment with his multiple prior convictions of moral turpitude instead of his brief statement to the probation officer.
Defendant acknowledges that the court retains discretion to withdraw its approval of a plea pursuant to section 1192.5, but argues that statute was not applicable to the plea proceedings in this case. Defendant asserts the plea was instead "more akin to a charge bargain under section 1192.1," as discussed in People v. Mikhail (1993) 13 Cal.App.4th 846 (Mikhail), and the court lacked jurisdiction to disapprove the agreement or grant the prosecution's motion to vacate the plea.
Section 1192.1 states: "Upon a plea of guilty to an information or indictment accusing the defendant of a crime or attempted crime divided into degrees when consented to by the prosecuting attorney in open court and approved by the court, such plea may specify the degree thereof and in such event the defendant cannot be punished for a higher degree of the crime or attempted crime than the degree specified." (Italics added.)
In Mikhail, the prosecution charged the defendant in an information with murder, attempted murder, and assault with a deadly weapon. The defendant pleaded guilty to the lesser included offense of voluntary manslaughter in exchange for the dismissal of the remaining charges. The plea included no restrictions on the court's sentencing power. The trial court took the plea, granted the motion to dismiss the other charges, and set the matter for sentencing before another judge. (Mikhail, supra, 13 Cal.App.4th at pp. 849-851.)
At the sentencing hearing, a different judge said that the case should go to trial for a jury to determine the defendant's guilt. Both the prosecutor and the defendant objected. The prosecutor advised the court that the plea had been negotiated under section 1192.1 and not section 1192.5, and the court lacked statutory authority to vacate the plea under section 1192.1. The court disagreed, vacated the plea agreement, and reinstated the original charges. After a jury trial, the defendant was convicted of second degree murder. (Mikhail, supra, 13 Cal.App.4th at pp. 851-852.)
Mikhail held the defendant's plea to a lesser included offense in the information was governed by sections 1192.1 and 1192.4, and not section 1192.5. In contrast to section 1192.5, section 1192.1 did not allow the trial court to withdraw its approval of the plea bargain. Mikhail held the trial court's actions violated the separation of powers because it withdrew its approval of the plea bargain, and forced the defendant to trial, over the objections of both the prosecution and the defendant. Mikhail further noted the trial court improperly engaged in such conduct in the absence of any new facts, but simply because the court believed the defendant deserved a longer sentence. (Mikhail, supra, 13 Cal.App.4th at pp. 855-858.)
Mikhail and section 1192.1 are not applicable to this case in part because defendant entered his plea to the principal felony count alleged in a complaint and not an information, in exchange for the reduction of the second felony count and dismissal of the third count.
We thus conclude that the court properly vacated the plea agreement, and defendant's trial did not violate the constitutional prohibition against double jeopardy.
II. Notice of the Third Strike Term
As explained above, after the court vacated defendant's plea, the prosecution filed an amended felony information that alleged count 1, felony corporal injury to a spouse/cohabitant, and count 2, misdemeanor child cruelty, and that he had five prior strike convictions. The same five prior strike convictions were alleged in the amended information that defendant was ultimately tried on. After defendant was convicted of felony corporal injury to a spouse/cohabitant, defense counsel advised the court that he was going to waive his right to both a jury and bench trial, and admit the five prior strike convictions.
Defendant contends that the court improperly imposed the third strike term of 25 years to life because the prosecution failed to "plead" in the amended information that he was not eligible for the more lenient sentencing provisions pursuant to the prospective provisions of Proposition 36, Reform Act (§ 667, subd. (e)), and instead faced a third strike term, even though his conviction in count 1 for felony corporal injury was not for serious and/or violent offense. (AOB 43-55)
A. Failure to Object/Ineffective Assistance
Defendant did not raise this issue below or demur to the amended information for allegedly failing to provide notice of the possible third strike sentence. "Generally, the purpose of an accusatory pleading is ' "to provide the accused with reasonable notice of the charges." ' [Citation.]" (People v. Whitmer (2014) 230 Cal.App.4th 906, 919.) "The well-established rule is that failure to demur on the ground that a charging allegation is not sufficiently definite waives any objection to the sufficiency of the information. [Citations.]" (People v. Holt (1997) 15 Cal.4th 619, 672.)
In the alternative, defendant contends that his attorney was prejudicially ineffective for failing to argue that his due process rights were violated because the prosecution failed to plead and prove that he was subject to a third strike term. "To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings. [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
B. The Reform Act
" 'Under the Three Strikes law as originally enacted, a felony defendant who had been convicted of a single prior serious or violent felony (a second strike defendant) was to be sentenced to a term equal to "twice the term otherwise provided as punishment for the current felony conviction." [Citation.] By contrast, a defendant who had been convicted of two or more prior serious or violent felonies (a third strike defendant) was to be sentenced to "an indeterminate term of life imprisonment with a minimum term of" at least 25 years. [Citation.]' [Citation.] Thus, under the original law, a defendant previously convicted of two qualifying strikes was subject to a life term if he was subsequently convicted of any new felony, regardless of whether it was a serious or violent one." (People v. Frierson (2017) 4 Cal.5th 225, 230, italics in original.)
"On November 6, 2012, the voters approved Proposition 36, the Three Strikes Reform Act of 2012 ..., which amended ... sections 667 and 1170.12 and added section 1170.126. [Citation.]" (People v. White (2014) 223 Cal.App.4th 512, 517, fn. omitted.)
The Reform Act has both prospective and retrospective provisions. (People v. White, supra, 223 Cal.App.4th at p. 517.) The retrospective part of the Reform Act "provides a means whereby, under three specified eligibility criteria and subject to certain disqualifying exceptions or exclusions, a prisoner currently serving a sentence of 25 years to life under the pre-Proposition 36 version of the Three Strikes law for a third felony conviction that was not a serious or violent felony may be eligible for resentencing as if he or she only had one prior serious or violent felony conviction. [Citations.]" (Ibid., § 1170.126)
Defendant's contentions in this case involve the prospective provisions of the Reform Act that amended section 667 and section 1170.12. (People v. White, supra, 223 Cal.App.4th at p. 517.) " 'The Reform Act changed the sentence prescribed for a third strike defendant whose current offense is not a serious or violent felony. [Citation.] Under the Reform Act's revised penalty provisions, many third strike defendants are excepted from the provision imposing an indeterminate life sentence [citation] and are instead sentenced in the same way as second strike defendants [citation]: that is, they receive a term equal to "twice the term otherwise provided as punishment for the current felony conviction" [citation]." (People v. Frierson, supra, 4 Cal.5th at p. 230, italics added.)
"A defendant does not qualify for this ameliorative change, however, if his current offense is a controlled substance charge involving large quantities [citation], one of various enumerated sex offenses [citation], or one in which he used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury [citation]." (People v. Frierson, supra, 4 Cal.5th at p. 231.)
In addition, "[t]he ameliorative provisions of the Reform Act ... do not apply in cases in which the defendant was previously convicted of certain enumerated offenses, including those involving sexual violence, child sexual abuse, homicide or attempted homicide, solicitation to commit murder, assault with a machine gun on a peace officer or firefighter, possession of a weapon of mass destruction, or any serious or violent felony punishable by life imprisonment or death. [Citation.] The Act provides that these disqualifying factors must be pleaded and proved by the prosecution. [Citation.]" (People v. Frierson, supra, 4 Cal.5th at p. 231, italics added.)
Thus, under the prospective provisions of the Reform Act, sections 667 and 1170.12 were amended to provide that a defendant convicted of two prior serious or violent felonies is subject to the sentence of 25 years to life only if the current third felony is a serious or violent felony. If the current offense is not a serious or violent felony, defendant would still be subject to a third strike term if the prosecution pleads and proves one of the enumerated disqualifying exceptions or exclusions applies. If not, the defendant will be sentenced as a second strike offender. (People v. White, supra, 223 Cal.App.4th at p. 517; § 667, subd. (e)(2)(C); § 1170.12, subd. (c)(2)(C).)
C. The Current Felony Conviction
The amended information charged defendant with count 1, felony corporal injury to a spouse/cohabitant (§ 273.5, subd. (a)); and count 2, misdemeanor child cruelty (§ 273a, subd. (b)). Defendant was convicted of count 1, and the jury was unable to reach a verdict on count 2.
While defendant had multiple prior strike convictions, his current conviction in count 1 was not for a serious or violent felony, and thus did not trigger the third strike sentencing provisions of the Reform Act. (§ 667, subd. (c)(2)(C); § 1170.12, subd. (c)(2)(C).)
D. The Prior Strike Convictions
While defendant's current offense was not a serious or violent felony, he was still subject to a third strike term under the Reform Act.
After being amended by the Reform Act, both section 667 and section 1170.12 identify "eight types of particularly serious or violent felonies, known colloquially as 'super strikes,' " that exclude the defendant from sentencing under the Reform Act, and instead render him or her eligible for a third strike indeterminate term, even if the current offense is not serious or violent. (People v. Valencia (2017) 3 Cal.5th 347, 351 & fn. 3; § 667, subd. (e)(2)(C)(iv)(I)-(VIII); § 1170.12, subd. (c)(2)(C)(iv)(I)-(VIII).)
The Reform Act thus states that if a defendant has two or more prior strike convictions "that have been pled and proved, and the current offense is not a serious or violent felony," the defendant shall be sentenced to a second strike term "unless the prosecution pleads and proves" one of the "super strike" exclusions. (§ 667, subd. (e)(2)(C)(iv)(I)-(VIII); § 1170.12, subd. (c)(2)(C)(iv)(I)-(VIII), italics added.)
The Reform Act's amendments define a "super strike" prior conviction to include:
"A 'sexually violent offense' as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (§ 667, subd. (e)(2)(C)(iv)(I); § 1170.12, subd. (c)(2)(C)(iv)(I); People v. Valencia, supra, 3 Cal.5th at p. 351, fn. 3.)
Welfare and Institutions Code section 6600, subdivision (b) defines a "[s]exually violent offense" to include a felony conviction for violating section 261, rape, "when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person...." (Welf. & Inst. Code, § 6600, subd. (b).)
After defendant's plea was vacated, the prosecution filed an amended complaint that alleged he had five prior strike convictions: first degree burglary in 1980; two robbery convictions in 1988; and two convictions in 1988 for violating section 261, subdivision (a)(2), rape by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. Thereafter, the same five prior convictions were alleged as prior strike offenses in the second amended complaint; the felony complaint in the refiled case; the information, and the first amended information on which he was tried.
Defendant's conviction for violating section 261, subdivision (a)(2), rape by force or fear, constituted a "super strike" that would have excluded him from sentencing under the Reform Act. Thus, while defendant's current felony conviction was not a serious or violent felony, he was still subject to a third strike term since he had five prior strike convictions, and one conviction was for a sexually violent offense as defined by Welfare and Institutions Code section 6600, subdivision (b). (§ 667, subd. (e)(2)(C)(iv)(I); § 1170.12, subd. (c)(2)(C)(iv)(I).)
E. The Allegations in the Amended Information
Defendant has not challenged the validity of any of his prior strike convictions, or that both of his prior convictions for rape by force or fear in violation of section 261, subdivision (a)(2) are "sexually violent offenses" as defined by Welfare and Institutions Code section 6600, subdivision (b).
Instead, defendant argues that since his current felony conviction for corporal injury to a spouse/cohabitant was not a serious or violent felony, he was still not subject to a third strike term under the Reform Act. Defendant asserts the prosecution failed to "plead and prove" in the amended information that the prior rape conviction was a "super strike" and constituted an exclusion from the more lenient sentencing provisions of the Reform Act, as defined by section 667, subdivision (e)(2)(C)(iv)(I) and section 1170.12, subdivision (c)(2)(C)(iv)(I). Defendant argues that as a result of this alleged pleading defect, he should have been sentenced to a second strike term.
Our review of the amended information refutes this argument. The amended information alleged the same five prior strike convictions that were initially alleged in the amended complaint, and repeatedly alleged throughout the pleadings. Thus, defendant was clearly on notice that the People alleged he had two prior convictions for rape by force or fear.
The amended information stated the following allegations as to each of the prior forcible rape convictions:
"PRIOR SERIOUS FELONY CONVICTIONS (STRIKES)
"It is further alleged pursuant to ... section(s) 667(b) through (i) and 1170.12(a) through (d) that the defendant(s) Conrad Glenn Wilkerson, has suffered the following prior conviction(s) of a serious or violent felony.
| "Conv. Date | Charge | Court Case# | Court |
| "08/03/1988 | PC 261(a)(2) | 380350-9 | Fresno Superior Ct." |
"It is further alleged due to the above referenced conviction(s) that the defendant(s) Conrad Glenn Wilkerson, is not eligible to be sentenced to county jail pursuant to ... sections 1170(f) and 1170(h)."
Section 1170, subdivisions (f) and (h)(3) excludes defendants from being sentenced to county jail under the provisions of the Criminal Justice Realignment Act of 2011. (People v. Wilcox (2013) 217 Cal.App.4th 618, 621.)
Both the information and the amended information contained the identical allegations for the other three prior convictions of first degree burglary and the two robbery convictions: the same heading of "Prior Serious Felony Convictions (Strikes)," and that each prior conviction was being alleged "pursuant to Penal Code section(s) 667(b) through (i) and 1170.12(a) through (d)."
F. Analysis
Defendant argues these allegations in the amended information were insufficient to provide notice and comply with statutory pleading and proof requirement of the Reform Act. Defendant argues the prosecution was, instead, required to specifically plead that at least one of his prior rape convictions was a super strike that excluded him from receiving a second strike term under the Reform Act.
As we have explained, under the prospective provisions of the Reform Act, "when an initial sentencing for a current offense is at issue, there is a clear statutory pleading and proof requirement with respect to factors that disqualify a defendant with two or more prior strike convictions from sentencing as a second strike offender. [Citations.]" (People v. Osuna (2014) 225 Cal.App.4th 1020, 1033, disapproved on other grounds by People v. Frierson, supra, 4 Cal.5th 225; People v. Chubbuck (2014) 231 Cal.App.4th 737, 745-746.) "If a defendant has two or more prior serious and/or violent felony convictions ... that have been pled and proved, and the current offense is not a felony described in paragraph (1) of subdivision (b) of this section, the defendant shall be sentenced pursuant to paragraph (1) of subdivision (c) of this section, unless the prosecution pleads and proves" one of the disqualifying factors. (§ 1170.12, subd. (c)(2)(C), italics added; § 667, subd. (e)(2)(C).)
In the amended information, the prosecution complied with the requirement to "plead and prove" that defendant was subject to a third strike term under the Reform Act. First, as to the current offenses, the amended information alleged that defendant committed one felony (count 1) and one misdemeanor (count 2). A third strike sentence is only possible if a defendant is convicted of a current felony offense. (§ 667, subds. (b), (c); § 1170.12, subds. (a), (b).) The felony was identified as corporal injury to a spouse/cohabitant in violation of section 273.5, subdivision (a), further advising defendant that his current offense was not a serious and/or violent felony.
Second, defendant was advised from the moment the court granted the People's motion to withdraw from the plea agreement, that the amended complaint alleged he had five prior strike convictions, including two prior convictions for rape by force or fear in violation of section 261, subdivision (a)(2). These allegations were again set forth in the information and amended information.
Third, the amended information specifically stated that each prior conviction was alleged as "PRIOR SERIOUS FELONY CONVICTIONS (STRIKES)" (italics added), and that each prior conviction was alleged pursuant to sections 667, subdivision (b) through (i) and section 1170.12, subdivision (a) through (d).
As explained above, Proposition 36 amended the "Three Strikes" law, as set forth in section 667, subdivision (e) and section 1170.12, subdivision (d), to define the prospective provisions of the Reform Act. The amended provisions provide for a second strike term if the current offense was not a serious or violent felony. More importantly, those same subdivisions also define the super strikes that exclude a defendant from the more lenient sentencing provisions of the Reform Act.
Taken in its entirety, the amended information provided sufficient notice that defendant was charged with one current felony conviction that was not a serious or violent felony; he had five prior felony convictions specifically alleged to be "STRIKES(S)" within the meaning of section 667, subdivisions (b) through (i) and section 1170.12, subdivisions (a) through (d); the exclusionary provisions of the Reform Act, including the definition of a super strike is contained in section 667, subdivision (e) and section 1170.12, subdivision (d); and the amended information alleged that two of his prior strike convictions were violations of section 261, subdivision (a)(2), rape by force or fear, defined by reference within section 667, subdivision (e) and section 1170.12, subdivision (d) as a sexually violent offense.
1. People v. Mancebo
Defendant relies on People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo) and argues the amended information should have specifically cited the exclusionary sections of the Reform Act, particularly section 667, subdivision (e)(2)(C) and section 1170.12, subdivision (c)(2)(C).
Mancebo addressed the pleading and notice provisions in section 667.61, the "One Strike" law. In that case, the information charged the defendant with several offenses arising from sexual assaults on two victims on separate occasions. The information also alleged that the defendant was eligible for a life sentence under section 667.61 based on three circumstances: kidnapping, use of a gun, and binding the victim. The information further alleged enhancements for personal use of a gun pursuant to section 12022.5. The jury found the defendant guilty as charged and found all the enhancements to be true. (Mancebo, supra, 27 Cal.4th at p. 740.)
At the time of sentencing, the trial court in Mancebo correctly recognized that section 667.61 precluded relying on the defendant's use of a gun to impose both a one strike sentence under section 667.61 plus a section 12022.5 firearm enhancement. However, the trial court decided to sentence the defendant to one strike terms based on an "unpled" circumstance that the offenses involved multiple victims, since the substantive offenses involved different victims on separate occasions. The court then sentenced the defendant to life terms under section 667.61, using the previously unpled "multiple victim" circumstances of the One Strike law, and separately imposed 10-year terms for the gun use under section 12022.5. (Mancebo, supra, 27 Cal.4th at p. 740.)
Mancebo held the sentence was unauthorized and violated due process because "no factual allegation in the information or pleading in the statutory language informed defendant that if he was convicted of the underlying charged offenses, the court would consider his multiple convictions as a basis for One Strike sentencing under section 667.61, subdivision (a). Thus, the pleading was inadequate because it failed to put defendant on notice that the People, for the first time at sentencing, would seek to use the multiple victim circumstance to secure indeterminate One Strike terms under section 667.61, subdivision (a) and use the circumstance of gun use to secure additional enhancements under section 12022.5(a)." (Mancebo, supra, 27 Cal.4th at p. 745.)
In reaching this conclusion, Mancebo explained:
"The pleading and proof requirements of section 667.61, subdivisions (f) and (i), and defendant's due process rights, were violated here - not
because defendant was never afforded notice that he was being charged with crimes against two victims; he obviously was, and not because defendant was never afforded notice that the One Strike law would apply to his case; again, he was. Sentencing error occurred because defendant was given notice that gun use would be used as one of the two pleaded and minimally required circumstances in support of the One Strike terms, whereafter, at sentencing, the trial court used the unpled circumstance of multiple victims to support the One Strike terms, and further imposed two 10-year section 12022.5(a) enhancements that could otherwise not have been imposed but for the purported substitution." (Mancebo, supra, at p. 753, italics in original.)
Mancebo rejected the dissent's claim that the majority was relying on " 'the rigid code pleading requirements the Legislature has repeatedly rejected.' [Citation.]" (Mancebo, supra, 27 Cal.4th at p. 753.)
"To the contrary, we do not here hold that the specific numerical subdivision of a qualifying One Strike circumstance under section 667 .61, subdivision (e), necessarily must be pled. We simply find that the express pleading requirements of section 667.61, subdivisions (f) and (i), read together, require that an information afford a One Strike defendant fair notice of the qualifying statutory circumstance or circumstances that are being pled, proved, and invoked in support of One Strike sentencing. Adequate notice can be conveyed by a reference to the description of the qualifying circumstance (e.g., kidnapping, tying or binding, gun use) in conjunction with a reference to section 667.61 or, more specifically, 667.61, subdivision (e), or by reference to its specific numerical designation under subdivision (e), or some combination thereof. We do not purport to choose among them." (Id. at pp. 753-754, italics added.)
In contrast to Mancebo, the amended information in this case specifically alleged defendant was charged with one current felony offense, and the prosecution would seek a third strike sentence based on the special allegations that he had multiple prior strikes as defined by section 667, subdivisions (b) through (i) and section 1170.12, subdivisions (a) through (d), including a violation of section 261, subdivision (a)(2), rape by force or fear.
While the amended information did not specifically allege that defendant's prior rape convictions were "sexually violent offenses" that excluded him from a second strike term under the Reform Act, the "pleading and proof" provisions of section 667 and section 1170.12 do not require inclusion of "the specific numerical subdivision" of the particular exclusion. (See, e.g., Mancebo, supra, 27 Cal.4th at p. 753.)
2. People v. Tennard
Our conclusion that the People complied with the Reform Act's pleading and proof requirement is further supported by People v. Tennard (2017) 18 Cal.App.5th 476 (Tennard), which rejected an argument similar to that raised in this case and held that the prosecution did not have to specifically plead that a defendant was subject to the exclusions set forth in section 667, subdivision (e)(2)(c) of the Reform Act.
In Tennard, the defendant was convicted of the nonstrike felony of corporal injury to a spouse/cohabitant in violation of section 273.5. He had two prior strike convictions, including a violation of section 261, subdivision (a)(2), rape by force or fear. Since defendant's current offense was not serious or violent, he would have received a second strike term, but he was disqualified under the provisions of the Reform Act because his prior forcible rape conviction was a super strike. (Tennard, supra, 18 Cal.App.5th at p. 480.)
"The information included a single 'special allegation' that the [prior] robbery and forcible rape convictions were 'serious and violent' felonies. Under the 'special allegation' heading, the information referenced 'sections 667, subdivisions (c) and (e)(2)(A), and 1170.12, subdivision (c), subsection (2)(a)' but did not reference section 667, subdivision (e)(1)(C). The information also did not specifically allege that defendant's prior forcible rape conviction disqualified him or rendered him ineligible for sentencing under section 667, subdivision (e)(1), or that the prosecution intended to seek an indeterminate 25-year-to-life term for defendant's current, nonstrike offense." (Tennard, supra, 18 Cal.5th at p. 482.)
After the defendant in Tennard was convicted of the nonstrike felony, the court found the prior allegations true and sentenced the defendant to the third strike term of 25 years to life. On appeal, the defendant argued the prosecution was required "to specifically plead, in the information, that his forcible rape conviction was a super strike, a disqualifying factor and an exception which rendered him ineligible to be sentenced as a second strike offender to twice the term otherwise provided for his current conviction. (§ 667, subd. (e)(1), (2)(C).) He argues the information was insufficiently specific because it did not reference section 667, subdivision (e)(2)(C) or expressly allege that his prior forcible rape conviction was a sexually violent offense and a disqualifying factor within the meaning of ... section 667, subdivision (e)(2)(C)(iv)(I) and Welfare and Institutions Code section 6600, subdivision (b)." (Tennard, supra, 18 Cal.App.5th at p. 485.)
Tennard rejected the defendant's due process and notice arguments.
"[Section 667,] [s]ubdivision (e)(2)(C) has two pleading and proof requirements. The first requires the prosecution to plead and prove that the defendant has two or more prior strikes. This is plainly necessary because subdivision (e)(2)(C) applies only if the defendant has two or more prior strikes and the current offense is not a strike. (§ 667, subd. (e)(2)(C).) The second pleading and proof requirement requires the prosecution to plead and prove that 'any' of the exceptions to second strike sentencing eligibility listed in subdivision (e)(2)(C)(i) through (iv) apply. The question defendant raises requires us to determine the level of specificity that is required to plead that an exception to second strike sentencing eligibility applies.
"The plain language of section 667, subdivision (e)(2)(C) only requires the prosecution to 'plead and prove' that 'any' of the exceptions to second strike sentencing eligibility set forth in subparagraphs (i) through (iv) apply. Neither subdivision (e)(2)(C) nor any other part of section 667 requires the prosecution to specifically 'plead and prove' that an exception applies by using any particular language or by referencing the particular subparagraph of the exception or disqualifying factor. As noted, all of the exceptions are based either on the defendant's current conviction (§ 667, subd. (e)(2)(C)(i)-(iii)) or on specified super strike convictions (id., subd. (e)(2)(C)(iv))." (Tennard, supra, 18 Cal.App.5th at pp. 485-486.)
Tennard further held that a defendant's due process right to notice was satisfied:
"Under the 'special allegation' heading, the information referenced section '667,' subdivisions '(c) and (e)(2)(A),' and their initiative
counterparts, section '1170.12, subdivision (c), subsection (2)(a).' It alleged that defendant had two or more 'serious and violent' felony convictions, 'within the meaning of ... sections 667, subdivisions (c) and (e)(2)(A), and 1170.12, subdivision (c), subsection (2)(a).' It also listed the dates, places, and code section numbers of defendant's prior robbery and prior forcible rape convictions and identified the forcible rape conviction as 'RAPE BY FORCE.'
"These allegations were sufficient to satisfy both of the pleading and proof requirements of section 667, subdivision (e)(2)(C) and defendant's due process right to notice that the prosecution would seek an indeterminate term on his current nonstrike felony conviction, pursuant to subdivision (e)(2)(A). As noted, subdivision (e)(2)(A) requires the court to impose an indeterminate term on a current, nonstrike felony, when the defendant has two or more prior strikes. By its terms, subdivision (e)(2)(A) applies '[e]xcept as provided in subparagraph (C),' and subparagraph (C) requires the defendant to be sentenced as a second strike offender pursuant to subdivision (e)(1) (that is, as if the defendant had only one prior strike) unless an exception applies. [Citation.]
"The allegation of the forcible rape conviction, which was identified by its code section number, section 261, subdivision (a)(2), and as 'RAPE BY FORCE,' sufficiently notified defendant that the prosecution would seek to disqualify him from second strike sentencing eligibility, pursuant to section 667, subdivision (e)(1), based on the forcible rape conviction. Although section 667, subdivision (e)(2)(C) was not referenced in the information, it was not required to be. It was effectively noted by the reference to section 667, subdivision '(e)(2)(A),' which specifically references, in its introductory clause, section 667, subdivision (e)(2)(C) as an exception to its provisions. The information also specifically alleged that defendant has a prior conviction for 'rape by force,' which is a super strike described in Welfare and Institutions Code section 6600, subdivision (b), a disqualifying factor identified in ... section 667, subdivision (e)(2)(C)(iv)(I)." (Tennard, supra, 18 Cal.App.5th at pp. 487-488.)
In this case, as in Tennard, defendant was provided sufficient notice that if he was convicted of the single charged felony offense alleged in the amended information, the prosecution would seek a third strike term based on the specific allegations that his prior convictions were "strikes," they were alleged within the meaning of section 667, subdivisions (b) through (i) and section 1170.12, subdivisions (a) through (d), and one of those prior convictions was for a violation of section 261, subdivision (a)(2), rape by force or fear, defined by reference to the Reform Act as a sexually violent offense.
III. Defendant's Admissions to the Prior Conviction Allegations
Defendant next contends that the court failed to properly advised him, and obtain waivers of, his constitutional and statutory rights when he admitted the prior conviction allegations, as required by Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl) and In re Yurko (1974) 10 Cal.3d 857 (Yurko)
Defendant did not forfeit this claim by failing to object to the lack of sufficient advisements at trial. (People v. Cross (2015) 61 Cal.4th 164, 173.)
A. Background
As set forth above, the amended information alleged defendant had five prior strike convictions and five prior prison term enhancements. The court granted defendant's motion to bifurcate the prior conviction allegations.
After the jury found defendant guilty of count 1, the court was about to convene the jury trial for the prior conviction allegations. Defense counsel advised the court that defendant was prepared to waive his right to both a jury and bench trial and admit the allegations.
The court noted that defendant's fingerprints had been "rolled" earlier that day. The court asked defense counsel if he talked to the fingerprint technician and he was "satisfied that the People's documents to prove the convictions ... what we call a [section] 969b packet in fact belongs to this defendant?" Defense counsel said yes.
What follows is the entirety of the court's exchange with defendant to advise him of his constitutional rights and obtain his admissions to the prior conviction allegations.
"THE COURT: Okay. So Mr. Wilkerson, we have the jury coming back this morning to hear this issue. I'm told you wish to waive your right to a trial on the priors; is that correct?
"THE DEFENDANT: Yes.
"THE COURT: Anybody made any promises to you or any threats to get you to admit these prior convictions?
"THE DEFENDANT: No.
"THE COURT: And you've had enough time to consider your options with Counsel to make your decision?
"THE DEFENDANT: Yes.
"THE COURT: All right. Starting at page 2 of the first amended information then, it is alleged pursuant to 667 B through I and 1170.12 A through D, that is the Three Strikes Law adopted by the Legislature by the voters, that you have suffered a conviction for a serious or violent felony, specifically a serious felony that is a conviction for a violation of sections 459/460(a) of the Penal Code, residential burglary, having been convicted on or about June 11th of 1980 in Fresno Superior Court case number 255166-1; do you admit having suffered that prior conviction?
"THE DEFENDANT: Yes.
"THE COURT: It is further alleged that you suffered a separate serious and violent conviction, again pursuant to those sections, this one being a serious and a violent felony, alleged violation of section 211 of the Penal Code, conviction date August 3rd of 1988 in Fresno Superior Court case number 380350-9, you admit having suffered that conviction for second degree robbery?
"THE DEFENDANT: Yes.
"THE COURT: It's further alleged that there was a separate count of robbery, that is there were two counts of robbery in that same case, and that in that case you were convicted of yet a second count of a violation of section 211 robbery; you admit having suffered that separate conviction as well?
"THE DEFENDANT: Yes.
"THE COURT: It's further alleged that in that same case you were convicted of a violation of section 261(a)(2) of the Penal Code, forcible rape, again pursuant to the strike sections in the code, the allegation is that you suffered that serious and violent felony conviction again in that same case. You admit having suffered that conviction as well?
"THE DEFENDANT: Yes.
"THE COURT:And then finally there's an additional allegation in that case that you were convicted of a violation of a separate violation of 261(a)(2), again in that same case, conviction date August 3rd of '88, you admit having suffered that additional conviction of forcible rape?
"THE DEFENDANT: Yes."
"THE COURT: ... It is further alleged pursuant to 667.5(b) of the Penal Code that you were convicted of the robbery counts and rape counts and sentenced to state prison in 1988 for those crimes, that you failed to remain free of prison custody for a period of five years after those convictions and prior to the commission of the present crime within the meaning of 667.5(b) of the Penal Code; do you admit that prison prior as well?
"THE DEFENDANT: Yes.
"THE COURT: Accept the plea and admission of the priors as knowing, intelligent, and voluntary ...." (Italics added.)
The court acknowledged that the amended information also alleged a fifth prior prison term enhancement, but ordered that stricken because of a faulty allegation.
After accepting the plea, the court remanded defendant without bail and scheduled the sentencing hearing. Thereafter, the court recalled the jurors into the courtroom, thanked them for their service, and discharged them.
B. Boykin/Tahl/Yurko
A trial court is required to ensure a guilty plea is knowing and voluntary pursuant to Boykin/Tahl. The court must inform the defendant of three constitutional rights as a prophylactic measure - the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront accusers. The court must solicit a personal waiver from the defendant of each right. (People v. Cross, supra, 61 Cal.4th at p. 170.)
Yurko held the same requirements of advisement and waiver of constitutional rights apply when a defendant admits the truth of a prior conviction allegation subjecting him or her to increased punishment. A record that does not indicate the advisements were made and waivers taken compels the determination the waiver of constitutional rights in the admission of prior convictions was not knowingly and intelligently made. There must be express and specific admonitions as to the constitutional rights being waived by an admission before the trial court can accept a defendant's admission he or she has prior felony convictions. (People v. Cross, supra, 61 Cal.4th at p. 170.)
Further, as a judicially declared rule of criminal procedure, before admitting a prior conviction allegation, the accused must be advised of the precise increase in the prison term to be imposed, the effect of parole eligibility, and the possibility of being adjudged an habitual criminal. (People v. Cross, supra, 61 Cal.4th at pp. 170-171.)
In People v. Howard (1992) 1 Cal.4th 1132, 1178-1179, the California Supreme Court reaffirmed Yurko's requirements of explicit admonitions and waivers, but clarified Yurko error is not per se reversible. The test for reversal is whether the record affirmatively shows the change of plea is voluntary and intelligent under the totality of the circumstances. (People v. Howard, supra, at pp. 1175-1178; People v. Cross, supra, 61 Cal.4th at p. 171.)
In People v. Mosby (2004) 33 Cal.4th 353, the court drew a distinction between "silent-record cases" and cases of "[i]ncomplete advisement of Boykin-Tahl rights." (Id. at pp. 361-363.) In the former situation, the record reveals "no express advisement and waiver of the Boykin-Tahl rights before a defendant's admission of a prior conviction." (Id. at p. 361.) "In such cases, in which the defendant was not advised of the right to have a trial on an alleged prior conviction, we cannot infer that in admitting the prior the defendant has knowingly and intelligently waived that right as well as the associated rights to silence and confrontation of witnesses." (Id. at p. 362.) In the incomplete advisement situation, the defendant is advised of the right to have a trial on the alleged prior conviction, but not the privilege against self-incrimination or the right to confront witnesses. In those cases, the court "must examine the record of 'the entire proceeding' to assess whether the defendant's admission of the prior conviction was intelligent and voluntary in light of the totality of circumstances." (Id. at p. 361.)
C. Analysis
In this case, the trial court failed to give defendant complete Boykin/Tahl advisements of his constitutional rights, or to take a waiver of those rights pursuant to the requirements of Yurko, aside from a limited reference to his right to a "trial," without specifying whether the reference was to a jury or a bench trial. There is nothing in the record to demonstrate defendant made a knowing and intelligent waiver of his rights pursuant to Boykin/Tahl and Yurko.
"While leaving for another day what additional advisements are constitutionally required, we take this opportunity to affirm the judicially created rule of criminal procedure requiring full Boykin-Tahl advisements for all guilty pleas in criminal trials regardless of whether the defendant's rights are derived from statute or from the state or federal Constitution. [Citations.] Adherence to this rule will provide a measure of certainty and uniformity for the trial courts." (People v. Cross, supra, 61 Cal.4th at p. 179, citing Yurko, supra, 10 Cal.3d at p. 864 & fn. 7.)
Accordingly, all of defendant's admissions of the prior conviction allegations are invalid and must reversed. The People, however, are still entitled to prove the prior conviction allegations, and remand for retrial on these matters is not barred by double jeopardy. (Monge v. California (1998) 524 U.S. 721, 727-734; People v. Barragan (2004) 32 Cal.4th 236, 239-242; People v. Monge (1997) 16 Cal.4th 826, 843-844; People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1421-1422.)
IV. Presentence Credits
Defendant contends, and the People concede, that he is entitled to 424 days of custody credits pursuant to section 4019, rather than the 409 days that were awarded. On remand, the abstract of judgment must be corrected.
DISPOSITION
Defendant's conviction in count 1 for felony corporal abuse of a spouse/cohabitant is affirmed.
Defendant's sentence is reversed because of the trial court's failure to advise defendant of his rights pursuant to Boykin/Tahl and Yurko, and the matter remanded for further appropriate proceedings.
On remand, the abstract of judgment must be corrected to reflect that defendant had 424 days of custody credits.
As modified, the judgment is affirmed in all other respects.
/s/_________
POOCHIGIAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
FRANSON, J.