Opinion
2d Crim. No. B227722
01-09-2012
THE PEOPLE, Plaintiff and Respondent, v. GERALD JEROME YOUNG, Defendant and Appellant.
Thomas K. Macomber, under appointment by the Court of Appeal for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Baine P. Kerr, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. MA045328)
(Los Angeles County)
Gerald Jerome Young appeals from judgment after conviction by jury of one count of possessing cocaine base for sale and one count of sale of a controlled substance. (Health & Saf. Code, §§ 11351.5, 11352, subd. (a).) He admitted that he had suffered four prior felony convictions for sale of controlled substances (§ 11370.2, subd. (a).) The trial court sentenced appellant to 17 years in state prison, consisting of a 5-year high term for possession of cocaine base for sale and 12 years of enhancements for the four prior convictions. (Ibid.) The court stayed the remaining count pursuant to Penal Code section 654, imposed a restitution fine in the amount of $3,400 and a corresponding parole restitution fine in the amount of $3,400. (Pen. Code, §§ 1202.4, subd. (b), 1202.45.)
All statutory references are to the Health and Safety Code unless otherwise stated.
Appellant contends that (1) the sentence enhancements for the four prior convictions are invalid because he did not unequivocally admit that he suffered those convictions and his waiver of rights was not voluntary or intelligent because the court's advisement was incomplete, (2) that the enhancements pursuant to section 11370.2 and the restitution fine must be reversed because the court erroneously believed it had no discretion to strike the priors or to set the amount of restitution, and (3) that this court should review the sealed transcript of the Pitchess hearing to determine whether any information was improperly withheld. We reject appellant's first contention, and agree with the second and third. We remand the matter to permit the trial court to exercise its discretion to impose or strike the section 11370.2 enhancements and to calculate the restitution fine pursuant to Penal Code section 1202.4. We conduct an independent review of the Pitchess transcript, concluding that no information was improperly withheld. We otherwise affirm.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
PROCEDURAL AND FACTUAL BACKGROUND
While under surveillance in 2009, appellant tossed 21 individually wrapped bundles of cocaine base out of his car window. He possessed $667 in cash and possessed no paraphernalia for ingesting cocaine. He had suffered four prior convictions for possessing cocaine base for sale in 1990, 1992, 1997, and 2002.
Before trial, appellant moved for disclosure of personnel records of an investigating sheriff's deputy concerning fabricating charges, dishonesty, writing false police reports, or planting evidence. (Pitchess v. Superior Court, supra, 11 Cal.3d 531.) The trial court conducted an in camera hearing and found no discoverable information.
The information charged appellant with possessing cocaine base for sale and sale of a controlled substance. (§§ 11351.5, 11351.) It also alleged he had suffered four prior felony convictions for possessing cocaine base for sale. (Ibid.) Counsel stipulated to these four prior sales convictions during trial, with no advisement of rights or personal waiver by appellant. Counsel did so in appellant's absence, after the trial court ruled that the prior convictions were admissible to prove absence of mistake and knowledge of the nature of the controlled substance. Counsel represented to the court that she had spoken to appellant about his right to a jury trial on the priors.
The court: "The jury would still have to decide those [priors]. Or, if Mr. Young wanted to, he could waive jury and do a court trial or a stipulation as to those four sales priors, as well as, the prison priors. [¶] Miss Hutton-Payne [appellant's counsel], you've spoken to him, and that is what he plans on doing then? Either have a court trial or stipulate as to the validity of all prior convictions?" Counsel: "That's correct, Your Honor."
The information also alleged that appellant had served six prior prison terms, including two additional convictions for possession of controlled substances. (§ 11350.) After trial, counsel stipulated that appellant had served five prior prison terms. The court ultimately struck the prior prison term enhancements. Before taking the stipulation about the prior prison terms, the court advised appellant of his right to trial on prior convictions, but it did not advise him of his concomitant rights against self-incrimination or to confront witnesses.
The following colloquy took place after the jury reached its verdict: The court: "Mr. Young, just so we're clear, do you agree to waive jury trial on the priors and have a court trial, the judge will be the jury, or by stipulation?" Appellant: "Yes, sir." The court told appellant to confer with counsel, which he did. The court then asked appellant: "So, yes, you are agreeing to waive jury on the priors?" Appellant responded: "Yes, sir." The court excused the jury. Defense counsel pointed out that appellant already stipulated to the four prior sales convictions. Counsel asked for time to confer about a stipulation to the prior prison terms.
The court allowed a recess, and when counsel returned they stipulated to the prior prison terms. The court asked counsel: "As to the four prison priors, it's been stipulated to the four sales priors. Those are valid, correct?" Appellant's counsel responded: "Correct." Based on the stipulation, the court found the four prior sales convictions true and the five prior prison terms true. Appellant's counsel then asked the court: "And, your Honor, are you going to take the admission - - the stipulation from [appellant]?" The court responded: "I'm sorry," and appellant's counsel asked, "Is [appellant] required to stipulate to those?"
The trial court responded by asking appellant whether he stipulated to both the prior sales convictions and the prior prison terms. The court asked appellant: "Based on your attorney and the [district attorney's] review of the paperwork and documentation that he has, they are both willing to stipulate that the four sales priors are valid and that there's five total prison priors that you are susceptible to have a one-year enhancements because of. Do you agree with that sir?" Appellant replied: "Yes, sir."
At the time of sentencing, the court stated its belief that it had no discretion with respect to the three-year enhancements for each prior sales conviction (§ 11370.2) or with respect to calculating the amount of victim restitution. With respect to section 11370.2, subdivision (a), the court said: "I have no discretion but to impose that three-year enhancement to each of those cases." With respect to victim restitution, the court said: "You're ordered to pay a victim restitution fund fine to the state in the amount of, and this is again a fixed complete number, a fixed figure. It's number of years times 200, so that's $3400, pursuant to 1202.4(b)."
DISCUSSION
Appellant's Admission to the Prior Sales Convictions
Appellant contends that his admission to the prior sales convictions is invalid because it was equivocal and because it was based on an incomplete advisement and therefore not voluntary and intelligent. We agree that the advisement was incomplete, but conclude that the admission was unequivocal and, based on the entire record, voluntary and intelligent in the totality of the circumstances.
A defendant must personally admit that he suffered a prior conviction. (Pen. Code, § 1205, subd. (a).) We do not, therefore, rely on counsel's midtrial evidentiary stipulation to the prior sales convictions. (People v. Adams (1993) 6 Cal.4th 570, 579.) However, appellant unequivocally and personally admitted the prior sales convictions after trial when he responded, "Yes, sir," to the court's question, "Based on your attorney and the [district attorney's] review of the paperwork and documentation that he has, they are both willing to stipulate that the four sales priors are valid and that there's five total prison priors that you are susceptible to have a one-year enhancements because of. Do you agree with that sir?" Appellant interprets his response as an admission only that counsel were willing to stipulate, and not an admission that he actually suffered the prior sales convictions. We reject the interpretation as unduly strained.
We must still consider whether the admission was voluntary and intelligent. Only a voluntary and intelligent admission is valid. (Boykin v. Alabama (1969) 395 U.S. 238, 243; In re Tahl (1969) 1 Cal.3d 122, 132 (Boykin-Tahl).) To ensure that any admission to a prior felony conviction is voluntary and intelligent, the trial court must advise the defendant, and obtain waivers, of the three Boykin-Tahl rights: (1) the right to a jury trial, (2) the right to remain silent, and (3) the right to confront witnesses. (In re Yurko (1974) 10 Cal.3d 857, 863.) Here, the trial court found the prior sales convictions and the prior prison terms true without ever advising appellant of his right against self-incrimination or to confront adverse witnesses. The prosecutor and appellant's counsel were of no assistance to the court in executing these duties. The court did advise appellant of his right to jury trial when it asked him, "do you agree to waive jury trial on the priors," and, "So, yes, you are agreeing to waive jury on the priors." This advisement was incomplete.
An incomplete advisement does not require automatic reversal. (People v. Howard (1992) 1 Cal.4th 1132, 1178.) Where advisement is incomplete, we must look beyond the courtroom colloquy and examine the record of the entire proceedings to assess whether the defendant's admission of the prior conviction was intelligent and voluntary in light of the totality of the circumstances. (People v. Mosby (2004) 33 Cal.4th 353, 361.)
In People v. Mosby, supra, 33 Cal.4th 353, like this case, the defendant was advised of his right to jury trial, but not his right to remain silent or to confront witnesses. The Court concluded that his admission that he had suffered a prior felony conviction was nevertheless voluntary and intelligent because, having just participated in a jury trial on the underlying offense, the defendant understood that trial included the rights to remain silent and to confront witnesses, both of which he had just exercised. (Id. at pp. 364-365.) Moreover, the defendant had experience with waiving his Boykin-Tahl rights because his prior conviction arose from a guilty plea. (Id. at p. 365.)
The jury trial advisement in this case was not as complete as that in People v. Mosby, which was as follows. The court: "You are entitled to have this jury, if they should find you guilty, you're entitled to have this jury determine the truth of the allegation that you suffered this prior felony conviction. [¶] You're entitled to have the jury hear that and make a decision on whether that's true or not. [¶] Do you understand that?" The defendant: "Yes." The court: "Do you waive and give up your right to have this jury make a determination as to whether you suffered such a prior conviction?" The defendant: "Yes." The court: "And you join in that, [defense counsel]?" Defense counsel: "I do." (Id. at p. 358.)
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Like the appellant in Mosby, appellant had just participated in a jury trial in which he exercised his right to remain silent and his counsel cross-examined adverse witnesses. Moreover, his criminal record demonstrates extensive experience in the criminal justice system from which we can infer some knowledge and sophistication regarding his rights. (People v. Mosby, supra, 33 Cal.4th at p. 365, citing Parke v. Raley (1992) 506 U.S. 20, 37.)
The cases upon which appellant relies are inapposite. In People v. Johnson (1993) 15 Cal.App.4th 169, the record was silent as to any waiver by defendant of any right. The trial court did not give the defendant an opportunity to answer the question whether he waived jury before it asked him another question, whether he was convicted. The court asked: "'All I want to know is whether you were convicted or whether or not you want a jury trial; were you convicted?'" (Id. at p. 177.) Accordingly, the court could not find that he voluntarily and intelligently waived his Boykin-Tahl rights with respect to the prior conviction. (Id at p. 178.) Here, appellant unequivocally waived his right to jury trial on the record before admitting the prior convictions.
In People v. Moore (1992) 8 Cal.App.4th 411, the defendant admitted a prior conviction with no advisement at all. (Id. at p. 415.) Here, appellant was advised of his right to jury.
In People v. Jones (1995) 37 Cal.App.4th 1312, there was insufficient evidence to support a jury's finding that an alleged prior was true where the minute order concerning that conviction was not in evidence. A waiver of rights form was admitted, but it was insufficient because it only demonstrated appellant's intent to enter a plea and did not demonstrate that he had actually done so in open court. (Id. at p. 1316.) Here, the reporter's transcript demonstrates that appellant admitted to the prior convictions in open court after being advised of his right to jury trial and with knowledge of his concomitant rights against self-incrimination and to confront witnesses in a trial.
We do not condone incomplete advisement. As the California Supreme Court emphasized in People v. Howard, supra, 1 Cal.4th at pages 1178-1179, explicit admonitions and waivers are an important part of the process of accepting a plea of guilty or an admission to a prior conviction. Although incomplete advisement does not necessitate automatic reversal, "explicit admonitions and waivers still serve the purpose that originally led us to require them: They are the only realistic means of assuring that the judge leaves a record adequate for review. [Citation.] Moreover, the essential wisdom of explicit waivers remains beyond question." (Ibid.)
Sentencing Discretion
As respondent concedes, this matter must be remanded for a new sentencing hearing because the record affirmatively demonstrates that the trial court was not aware it had discretion to strike the enhancements for the prior sale convictions or to calculate the amount of restitution. Section 11370.2 provides for a three-year sentence enhancement for each prior conviction of an enumerated offense, such as the four prior sales offenses here, but an enhancement resulting from a prior conviction may be stricken in the furtherance of justice pursuant to Penal Code section 1385. (People v. Meloney (2003) 30 Cal.4th 1145, 1155.) Similarly, Penal Code section 1202.4 provides for a restitution fine that may be calculated as the product of $200 multiplied by the years of imprisonment, multiplied by the number of felony convictions (id. at subd. (b)(2)), but the amount is "set at the discretion of the court" (id. at subd. (b)(1)), based on factors that include "the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered any losses as a result of the crime, and the number of victims involved in the crime" (id. at subd. (d)). An abuse of discretion occurs where the trial court is not aware of its discretion. (People v. Carmony (2005) 33 Cal.4th 367, 378.) Because the trial court did not understand that it had discretion to strike the priors and to calculate the restitution amount, we must remand to give it an opportunity to do so.
Independent Review of the Pitchess Hearing
Appellant requested independent review of the trial court's in camera hearing on his Pitchess motion to determine whether any records were improperly withheld. Respondent did not object. We conducted an independent review of the in camera hearing pursuant to People v. Mooc (2001) 26 Cal.4th 1216, 1229-1232. We conclude the trial court did not abuse its discretion when it determined that there were no discoverable records.
DISPOSITION
The orders imposing sentence enhancements pursuant to section 11370.2 and imposing the restitution fine are vacated. We remand the matter to allow the trial court to exercise its discretion to impose or strike the section 11370.2 enhancements and to calculate the restitution fine pursuant to section 1202.4. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED.
COFFEE, J.
We concur:
GILBERT, P.J.
PERREN, J.
Richard E. Naranjo, Judge
Superior Court County of Los Angeles
Thomas K. Macomber, under appointment by the Court of Appeal for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Baine P. Kerr, Deputy Attorney General, for Plaintiff and Respondent.