Opinion
A148609
09-18-2017
THE PEOPLE, Plaintiff and Respondent, v. ISMAEL ARIAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. 15025229, 225041)
After a jury convicted appellant Ismael Arias of drug-related felony offenses and misdemeanor resisting arrest, his counsel stipulated that he had suffered a prior conviction and had been released on bail or on his own recognizance at the time he committed one of the felonies. He contends these stipulations were invalid because they subjected him to a longer sentence and were not preceded by advisements regarding his constitutional rights as required by Boykin v. Alabama (1969) 395 U.S. 238, 243-244 (Boykin), In re Tahl (1969) 1 Cal.3d 122, 130-133 (Tahl), and In re Yurko (1974) 10 Cal.3d 857, 860 (Yurko).) We agree.
I. BACKGROUND
On May 9, 2015, San Francisco Police Department officers observed appellant make what appeared to be a hand-to-hand drug sale to a man who approached him on the street. Appellant struggled with the officers when they arrested him, and cocaine base was found in his possession and in the possession of the other man, who had been detained and cited. On November 12, 2015, appellant sold cocaine based to an undercover police officer.
An information was filed charging appellant with two counts of selling cocaine base (counts 1-2), one count of possession for sale of cocaine base (count 3), and one count of resisting arrest (count 4). (Health & Saf. Code, §§ 11352, subd. (a), 11351.5; Pen. Code, § 148, subd. (a)(1).) Count 1 arose from the November 12 arrest; counts 2 through 4 from the May 9 arrest. The information also contained two sentence enhancement allegations: (1) that appellant had been released on bail or on his own recognizance within the meaning of Penal Code section 12022.1, subdivision (b), when he committed the crime charged in count 1; and (2) that on November 5, 2015, appellant had suffered a prior conviction for sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)), within the meaning of Health and Safety Code section 11370.2, subdivisions (a) and (c).
A jury trial commenced in February 2016. Prior to jury selection, the court noted it had "already granted an oral request to bifurcate [appellant]'s prior convictions."
During the trial, the prosecution sought to introduce evidence of appellant's prior conviction of sale of a controlled substance for the purpose of proving his intent under Evidence Code section 1101, subdivision (b). When discussing the procedure for admitting the evidence, the prosecutor commented, "[A]nd the fact that the prior is admissible, and the Court has ruled it admissible under 1101, is not changed by a defense request to bifurcate the charged prior. [¶] He's basically asking for when the jury decides the truth of the prior, or a trial of that prior, that it be separate from these charges. [¶] I don't think that that request, in any way, changes what 1101(b) says about the admissibility of prior conduct." The court took judicial notice of the docket in that prior case, advising the jury: "I take judicial notice that on November 5, 2015 in a department of this court, the defendant's motion to withdraw his not-guilty plea was granted and the defendant was advised of and personally waived his constitutional rights and entered a plea of guilty to a count of a violation of Section 11352(a) of the Health and Safety Code, sale of a controlled substance. [¶] I further take judicial notice that, on December 8, 2015, the defendant was sentenced on that conviction—again, in this court, the San Francisco Superior Court.
The jury returned a verdict convicting appellant of counts 1, 3 and 4, but it could not reach a verdict as to count 2. The court declared a mistrial as to count 2, discharged the jury, and advised counsel that after a brief break they would "return and talk about the bifurcated allegation and scheduling of sentencing." When they returned to the courtroom, the following colloquy occurred:
"THE COURT: . . . . [¶] So the first matter relates to the allegation of the defendant's prior conviction. [¶] The complaint [sic] alleges that the defendant was convicted of [] a violation of Section 11352(a) of the Health and Safety Code, a felony, on or about November 5, 2015 in this court. [¶] And I understood, [defense counsel], that you're prepared to stipulate to [the] truth of that allegation? [¶] [DEFENSE COUNSEL]: Well, yes, that's correct. [¶] I just want the dates to be clear, in that he pled on November 5th and was sentenced on December the 8th of 2015. [¶] THE COURT: All right. And I have that stipulation from you then? [¶] [DEFENSE COUNSEL]: Yes. [¶] THE COURT: My understanding is that the plea is, itself, is - amounts to a conviction, so I think this is properly alleged. [¶] [DEFENSE COUNSEL]: I would disagree, but I would stipulate to those dates. [¶] THE COURT: All right. [¶] Do you also stipulate to the truth of the allegation, that the felony alleged in Count 1 was committed while the defendant was on bail and/or his own recognizance, within the meaning of [Penal Code section] 12022.1(b)? [¶] [DEFENSE COUNSEL]: Yes."
The trial court was correct on this point. For purposes of Health and Safety Code section 11370.2, a prior conviction occurs upon the ascertainment of guilt, which occurs when the defendant pleads guilty and not when he or she is sentenced. (People v. Rhoads (1990) 221 Cal.App.3d 56, 59.)
The district attorney dismissed count 2 in the interest of justice, and a sentencing hearing was held as to the counts of conviction. The court imposed the four-year middle term for the sales conviction in count 1, enhanced by two years for the on-bail enhancement under Penal Code section 12022.1, for a total term of six years. It imposed the three-year middle term for the possession for sale conviction in count 3, accompanied by a three-year enhancement under Health and Safety Code section 11370.2, and ordered the sentence on count 3 to run concurrently. The court also imposed a concurrent 12-month term for the misdemeanor resisting arrest conviction in count 4. Appellant was ordered to serve two years of his sentence in county jail under Penal Code section 1170, subdivision (h)(5), followed by mandatory supervision for the remaining four years.
II. DISCUSSION
"When a criminal defendant enters a guilty plea, the trial court is required to ensure that the plea is knowing and voluntary. [Citation.] As a prophylactic measure, the court must inform the defendant of three constitutional rights—the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers—and solicit a personal waiver of each. [Citations.] Proper advisement and waiver of these rights, conducted with 'the utmost solicitude of which courts are capable,' are necessary 'to make sure [the accused] has a full understanding of what the plea connotes and of its consequence." (People v. Cross (2015) 61 Cal.4th 164, 170 (Cross).) The same requirements of advisement and waiver also apply when a defendant admits the truth of a sentence enhancement allegation. (Yurko, supra, 10 Cal.3d at p. 860.) The advisements need not be given before the court accepts a stipulation to evidentiary facts that is not the equivalent of an admission to a substantive offense or enhancement allegation. (People v. Adams (1993) 6 Cal.4th 570, 582-583 (Adams).)
In this case, defense counsel purported to enter into two evidentiary stipulations pertaining to the enhancement allegations: (1) that appellant pled guilty to a violation of Health and Safety Code section 11352, subdivision (a), on November 5, 2015, and (2) he was on bail or released on his own recognizance when he committed the crime alleged in count 1 on November 12, 2015. As the Attorney General all but acknowledges, these "cumulative" stipulations admitted every fact necessary for the enhancements to apply and were tantamount to admissions of those allegations. (See Cross, supra, 61 Cal.4th at p. 174; Adams, supra, 6 Cal.4th at p. 582.) Yet, not only did the court fail to provide appellant with Boykin/Tahl/Yurko admonitions, it failed to obtain an admission from appellant personally, as required by Penal Code section 1025. (See People v. Williams (1980) 103 Cal.App.3d 507, 516 ["It is reasonably apparent that the purpose behind . . . Penal Code section 1025's requirement that a defendant personally answer that he has suffered the subject prior conviction is the same purpose behind Penal Code section 1018's requirement that the defendant personally enter a guilty plea: to ensure that the incriminatory statement is the defendant's own. [Citation.]".) This was error.
Penal Code section 1025 provides in pertinent part, "[A] defendant who is charged in the accusatory pleading with having suffered a prior conviction . . . shall be asked whether he or she has suffered the prior conviction. . . . [H]is or her answer shall be entered in the minutes of the court. . . ."
The failure to give the required advisements before taking an admission is not reversible per se, and an admission will not be set aside when "the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances." (People v. Howard (1992) 1 Cal.4th 1132, 1175.) In making this inquiry, the focus is not on whether an enhancement would have been found true, but on whether the defendant was aware of his or her constitutional rights. (People v. Christian (2005) 125 Cal.App.4th 688, 695-698; People v. Stills (1994) 29 Cal.App.4th 1766, 1770 (Stills).)
In cases where the trial court has given a partial advisement of the Boykin/Tahl/Yurko rights, an appellate court "must go beyond the courtroom colloquy" and "examine the record of 'the entire proceeding' to assess whether the defendant's admission . . . was intelligent and voluntary in light of the totality of [the] circumstances." (People v. Mosby (2004) 33 Cal.4th 353, 361 (Mosby).) It is not clear whether this approach applies to a true "silent record case" such as the one before us, i.e., a case in which there was no admonishment in connection with a plea or admission as opposed to an incomplete admonishment. (Ibid.) In Mosby, the Supreme Court summarized prior "silent record" decisions and concluded that in such cases, it would not "infer that in admitting the prior the defendant has knowingly and intelligently waived [the right to a jury trial] as well as the associated rights to silence and confrontation of witnesses." (Id., at p. 362; see People v. Campbell (1999) 76 Cal.App.4th 305, 310; Stills, supra, 29 Cal.App.4th at p. 1769-1771; People v. Johnson (1993) 15 Cal.App.4th 169, 177-178; People v. Moore (1992) 8 Cal.App.4th 411, 415-418.)
The issue of whether the "totality of the circumstances" test may be applied in a silent record case, and the extent to which the other parts of the proceedings and a defendant's prior experience with the criminal justice system may be considered, is pending before the California Supreme Court in People v. Farwell, review granted Feb. 3, 2016, S2311009, previously published at 241 Cal.App.4th 1313. Reversal of appellant's enhancements is necessary regardless of the outcome of Farwell, because the record here, even when considered as a whole, does not establish a voluntary and intelligent admission of the enhancement allegations.
The trial court did not advise appellant of any of his constitutional rights, nor did it ascertain whether he had discussed them with defense counsel. The case is similar to Cross, in which the trial court accepted a stipulation to the fact of a prior conviction that would expose the defendant to additional punishment without providing an admonition or securing a waiver. (Cross, supra, 61 Cal.4th at p. 169.) The Supreme Court reversed, finding no indication the stipulation was knowing or voluntary. (Id. at p. 180.) "After counsel read the stipulation in open court, the trial court immediately accepted it. The court did not ask whether [the defendant] had discussed the stipulation with his lawyer, nor did it ask any questions of [the defendant] personally or in any way inform him of his right to a fair determination of t[he truth of the] prior conviction allegation." (Ibid.)
The Attorney General argues the case is distinguishable from Cross because appellant was advised of his constitutional rights when he pled guilty to the prior offense underlying the enhancement allegations. We are not persuaded. The record on appeal provides no detail as to the precise admonitions given in the prior case. Additionally, the prior case did not involve an admission of enhancement allegations, and a defendant who understands his constitutional rights with respect to substantive criminal charges would not necessarily realize that those rights apply with equal force to such allegations.
Nor are we persuaded appellant was put on notice of his Boykin/Tahl/Yurko rights by the court's bifurcation of the enhancement allegations for purposes of trial. The brief comment by the court memorializing the bifurcation ("I have already granted an oral request to bifurcate [appellant]'s prior convictions . . . .") was too oblique a reference to the right to a jury trial to infer that appellant gleaned an understanding of any of his constitutional rights as they pertained to the enhancement allegations. The prosecutor's characterization of the bifurcation as a procedure by which the jury would separately consider the prior conviction allegation was similarly insufficient to put appellant on notice of his constitutional rights.
Nothing in the colloquy surrounding the stipulations in this case would have alerted a reasonable person that appellant had any constitutional rights with respect to the stipulation. The enhancements under Penal Code section 12022.1 and Health and Safety Code section 11370.2 must be vacated and the case remanded for further proceedings. A retrial of the allegations is permissible. (See People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1421.)
The trial court imposed the three-year enhancement under Health and Safety Code section 11370.2 only as to the possession for sale conviction in count 3, and ran the sentence on both the substantive crime and that enhancement concurrent with the sentence on count 1. This was an unauthorized sentence. An enhancement under section 11370.2 pertains to a defendant's status and does not attach to any particular count. (People v. Tillotson (2007) 157 Cal.App.4th 517, 542.) Although the court could elect to strike the section 11370.2 enhancement in the interests of justice, the enhancement was mandatory unless stricken. (See People v. McCray (2006) 144 Cal.App.4th 258, 267; People v. Savedra (1993) 15 Cal.App.4th 738, 747.) Should the section 11370.2 enhancement be properly admitted by appellant or found true on remand, the trial court should treat that enhancement accordingly at resentencing. --------
III. DISPOSITION
The enhancements under Penal Code section 12022.1 and Health and Safety Code section 11370.2 are reversed and the sentence is vacated. The case is remanded for further proceedings consistent with this opinion.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.