Opinion
E052422
02-17-2012
THE PEOPLE, Plaintiff and Respondent, v. ELIGIO JOHN BUMANGLAG, Defendant and Appellant.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. SWF029016)
OPINION
APPEAL from the Superior Court of Riverside County. Larrie R. Brainard, Judge. (Retired judge of the San Diego Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed in part and reversed in part with directions.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.
During an argument, defendant Eligio John Bumanglag hit his mother's boyfriend with a baseball bat. By the time of trial, both the mother and the boyfriend had become reluctant to testify against defendant. On the stand, they minimized the boyfriend's injuries. The boyfriend's medical records were excluded as hearsay.
Defendant testified that the boyfriend attacked him; he denied using a baseball bat. He claimed that he did not think the boyfriend had been injured, and he volunteered that the medical records would support this. As a result, for purposes of impeachment, the trial court allowed the prosecutor to have defendant read some of the medical records out loud, including a statement that the boyfriend in fact had five broken ribs.
A jury found defendant guilty on one count of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) It found true a great bodily injury enhancement. (Pen. Code, § 12022.7, subd. (a).) Defendant admitted one "strike" prior (Pen. Code, § 667, subds. (b)-(i), 1170.12), one prior serious felony conviction enhancement (Pen. Code, § 667, subd. (a)), and two 1-year prior prison term enhancements (Pen. Code, § 667.5, subd. (b)). Defendant was sentenced to a total of 14 years in prison, plus the usual fines and fees.
Defendant now contends:
1. The trial court erred by denying defendant's motion for acquittal on the great bodily injury enhancement.
2. There was insufficient evidence to support the true finding on the great bodily injury enhancement.
3. Defense counsel rendered ineffective assistance by: (a) failing to request a limiting instruction with regard to the contents of the medical records; and (b) failing to object when the prosecutor argued that the contents of the medical records supported the great bodily injury enhancement.
4. Defense counsel rendered ineffective assistance by failing to object when the prosecutor referred to the possibility of probation in closing argument.
5. The trial court failed to give defendant the requisite advisements before he admitted the priors.
6. Defendant's admission of the two prior prison term enhancements was invalid because he was not asked to admit every element of this enhancement.
We agree that defendant counsel rendered ineffective assistance by failing to object to the prosecutor's use of the contents of the medical records as evidence of their truth in closing argument. Accordingly, the great bodily injury enhancement must be reversed. In the prosecution's discretion, however, it may be retried. We find no other reversible error.
I
FACTUAL BACKGROUND
A. Background.
Defendant lived with his mother, Helena Patterson, and her boyfriend, Robert Eubanks.
It is undisputed that, on July 9, 2009, the boyfriend confronted defendant because defendant had gotten paint on a fence while spray-painting a bicycle.
B. The Boyfriend's 911 Call.
The boyfriend called 911. He said that defendant had hit him with a baseball bat three times. He added, " . . . I think my ribs are cracked or something. I don't know."
C. The Boyfriend's First Statement to Police.
Officer Ryan Hollenweger responded to the call and interviewed the boyfriend.
The boyfriend told Officer Hollenweger that, during the confrontation, defendant attacked him with a baseball bat. First, defendant swung "in the direction of [the boyfriend's] head, so he put up his left arm and got hit in the elbow." Defendant's next swing hit him in the ribs. He told Officer Hollenweger that his ribs hurt and that he was in a lot of pain. He was having trouble breathing.
Officer Hollenweger observed a swelling on the boyfriend's left elbow, "between the size of a golf ball and [a] baseball." He also observed a red welt on the boyfriend's lower left back. Photos of these injuries were in evidence.
Paramedics examined the boyfriend, and he was taken to the hospital in an ambulance. Officers searched the apartment for a bat but did not find one.
D. Defendant's Mother's Statement to Police.
Officer Hollenweger also interviewed defendant's mother. She told him that defendant picked up a blue metal baseball bat and hit the boyfriend twice. She said that when defendant heard that the police had been called, he left, taking the bat with him.
E. The Boyfriend's Second Statement to Police.
A week later, Officer Hollenweger talked to the boyfriend again. At that point, the boyfriend had a cast on his left arm. He had no dressing on his rib area; he explained that his ribs had just been badly bruised.
The boyfriend said that he no longer wanted defendant prosecuted. Officer Hollenweger testified that, in around 90 percent of domestic violence situations, the "people who were attacked [would] say later . . . I[ was] not attacked in order to cover up for the defendant[.]"
F. The Boyfriend's Testimony at Trial.
The boyfriend was a reluctant witness. When first subpoenaed, he had refused to testify. He admitted that both defendant and defendant's mother had asked him not to testify. However, he admitted that in the 911 call he told the truth. He also admitted that he told the truth to the police.
The boyfriend testified that he received the injuries shown in the photos when defendant hit him with a baseball bat. At the time, his ribs "felt like they were cracked," because it hurt when he took a deep breath. His left elbow was sore; he did not know if it was broken, but he could bend it only about "35 percent of the way[.]" He claimed not to remember whether his arm was in a cast or not. He testified that his elbow was all better within a month. By the time of trial, however, his ribs still hurt when he coughed.
G. Defendant's Mother's Testimony at Trial.
Defendant's mother, too, was a reluctant witness. She admitted that she did not want to testify against her son. She also admitted that he had asked her not to come to court.
She testified that the confrontation between defendant and the boyfriend was strictly verbal. She denied having a baseball bat in the house. She either denied making or denied remembering any contrary statements to the police.
She admitted that defendant left because the police were coming. She also admitted that the boyfriend went to the hospital, and when he came back, he had a cast on his left arm. She claimed, however, that he took the cast off immediately and said he was not hurt. He complained about an injury to his side for two or three days, but after that, he said it did not hurt anymore.
According to defendant's mother, the boyfriend had never injured her — " . . . I'm the boss, not him."
H. Defendant's Jailhouse Phone Call.
In a phone call to his mother from jail, defendant told her that the boyfriend should say he had lied about everything. Defendant also said, "[T]hey['re] saying that if nobody shows up [at] court, that they're going to dismiss the case."
Defendant kept insisting, "I didn't do nothing." He added, "I don't even know what happened that day."
I. Defendant's Testimony at Trial.
Defendant testified that the confrontation started in his bedroom. He went out to the carport area, but the boyfriend followed him. They were both under the influence of alcohol.
The boyfriend hit defendant in the jaw. They got into "a mutual combat." They fell to the ground and bounced off a pole. They rolled around on the ground for a couple of minutes, until the boyfriend said, "I'm going to call the cops" and ran toward a neighbor's house. Defendant left because he was on parole and did not want to go to jail.
When asked on cross-examination what stopped the fight, defendant mentioned for the first time that some neighbors separated them. When asked how many there were, he said some eight or ten. According to defendant, they "saw the whole incident . . . ." However, he did not try to get these witnesses to speak to the police.
According to defendant, at the time, he did not realize that the boyfriend was injured. Later, however, he concluded that the boyfriend must have hurt his ribs when he hit the pole and must have hit his elbow on the ground. Defendant claimed, "There was no bat involved at all."
Defendant believed that his mother had lied to the police because she was afraid of the boyfriend; he had beaten her some "15, 20 times" and "busted her head open." However, when asked if he was upset about this, he said he "stayed out of it" and did not call the police. In fact, he and the boyfriend "were best friends."
II
THE EVIDENCE SUPPORTING THE GREAT BODILY INJURY ENHANCEMENT
A. Additional Factual and Procedural Background.
1. The introduction of the contents of the medical records to impeach defendant.
During their case-in-chief, the People attempted to introduce the boyfriend's medical records (exhibit 6). The trial court excluded them as hearsay.
After the People rested, defense counsel made a motion for acquittal (Pen. Code, § 1118.1) on the great bodily injury enhancement. The trial court denied the motion.
Defendant then took the stand and testified:
"Q. You didn't even know he was injured; correct?
"A. Correct.
"Q. You just thought that you guys fell down during the mutual combat, and you didn't see a swollen elbow or anything like that, did you?
"A. Correct.
"Q. Okay.
"A. And on some of the hospital — on some of the hospital work, it says that his ribs and —
"Q. Hold on.
"A. — his elbows.
"Q. Hold on. Hold on." (Italics added.)
On cross-examination, there was this colloquy:
"Q. I have People's Exhibit 6 right here. Those are the records you were talking about; right? Is that correct?
"[DEFENSE COUNSEL]: Objection. Foundation.
"THE COURT: Overruled. [¶] . . . [¶]
"Q. (BY [THE PROSECUTOR]:) You indicated that the medical records show that [the boyfriend] was just fine; correct?
"Stay on this page.
"A. Can I look at the other one?
"Q. Actually I need you to look at this page. What does it actually say about the nature of [the boyfriend]'s injuries?
"[DEFENSE COUNSEL]: Objection. Calls for hearsay. [¶] . . . [¶]
"THE COURT: He can be impeached. I'll overrule the objection. [¶] . . . [¶]
"A. Fifth to ninth left anterior and posterior rib fractures. [¶] . . . [¶]
"Q. . . . [¶] You can go ahead and read this part right here.
"A. There is a nondisplaced fracture along the lateral aspect of the distal shaft of the —
"[DEFENSE COUNSEL]: Objection. Hearsay. He's reading medical documents.
"THE COURT: I'm afraid your client said the record showed no harm or no injuries. So I'm going to let him be impeached with it."
Defendant proceeded to testify that the records that he had seen were from the emergency room: "[O]ne doctor said one thing and another doctor said another."
2. The prosecutor's closing argument.
In closing argument, the prosecutor said that defendant had hit the boyfriend in the elbow, "fracturing his bones."
He also said: "Consider the force that is required to break someone's ribs, to fracture his ribs. We heard the defendant himself read out of those medical records explaining the nature of those fractured ribs. . . . That's perfectly consistent with hitting someone with a baseball bat, not scuffling with them for a couple minutes."
Next, he said: "Now, these medical reports are important in two ways. One is it shows the nature of the injuries. These are bone fractures. This isn't minor. This is consistent with being hit with a baseball bat. They're bones that are breaking because of what he did." He went on to argue that the medical records were also important because they impeached defendant.
Finally, the prosecutor said: "What is great bodily injury? We know [the boyfriend]'s ribs were fractured. We know his arm was fractured." "Really[,] this case isn't about whether it's minor or moderate; right? We're talking about broken bones here."
Defense counsel did not object to any of these statements.
B. The Motion for Acquittal on the Great Bodily Injury Enhancement.
Defendant contends that the trial court erred by denying his motion for acquittal on the great bodily injury enhancement.
We will assume, without deciding, that a motion for acquittal can be brought with respect to a conduct-based enhancement, such as a great bodily injury enhancement. (Cf. People v. Norris (2002) 95 Cal.App.4th 475, 478-479 [motion for acquittal cannot be brought with respect to a status-based enhancement, such as a prior prison term enhancement].)
"The standard applied by the trial court under section 1118.1 in ruling on a motion for judgment of acquittal is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction. [Citation.] 'In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — evidence that is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier reasonably could deduce from the evidence. [Citation.] [¶] . . . "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.] We do not reweigh evidence or reevaluate a witness's credibility. [Citation.]' [Citation.]" (People v. Whisenhunt (2008) 44 Cal.4th 174, 200.)
"'Where the section 1118.1 motion is made at the close of the prosecution's casein-chief, the sufficiency of the evidence is tested as it stood at that point.' [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1213.)
For purposes of a great bodily injury enhancement, "'great bodily injury' means a significant or substantial physical injury." (Pen. Code, § 12022.7, subd. (f).) "[T]he injury need not be so grave as to cause the victim '"permanent," "prolonged," or "protracted"' bodily damage. [Citation.]" (People v. Cross (2008) 45 Cal.4th 58, 64, italics added.) A torn hymen, along with the associated bleeding and pain, can be sufficient to constitute great bodily injury. (People v. Williams (1981) 115 Cal.App.3d 446, 454-455.) In People v. Jaramillo (1979) 98 Cal.App.3d 830, the court held that "multiple contusions over various portions of [the victim's] body," accompanied by swelling, that were both visible and painful the following day constituted sufficient evidence of great bodily injury. (Id. at p. 836.) By contrast, "'a minor laceration . . . '" does not constitute great bodily injury. (People v. Martinez (1985) 171 Cal.App.3d 727, 735.)
Here, the boyfriend had an injury to his left arm that required him to wear a cast on the arm for at least a week. He was able to bend his arm only 35 percent of the way. The injury took about a month to heal. Admittedly — at least as of the close of the prosecution's case — the evidence regarding the injury to the boyfriend's ribs showed only a severe bruise. Even so, however, it also showed that the injury was still causing him occasional pain at trial, over a year later. A reasonable jury could find that this constituted great bodily injury.
Defendant challenges the evidence that the boyfriend was in a cast. He dissects minutely Officer Hollenweger's testimony to this effect and dismisses it as "speculation." However, Officer Hollenweger saw the appliance on the boyfriend's arm, and in his opinion, it was a cast. Moreover, defendant's mother, who lived with the boyfriend, admitted that he had a cast. Although she claimed that he took it off immediately, it was still on when Officer Hollenweger saw it a week later. In any event, the only room for doubt was with respect to whether it was a cast or a splint. Either way, the arm had to be immobilized for at least a week. This was still substantial evidence of great bodily injury.
On cross-examination, Officer Hollenweger testified:
"Q. . . . Was it a cast or a splint?
"A. I remember it being a cast.
"Q. Okay. So it was the kind — like whiteish, not really whiteish, but the cast material? It wasn't wrapped in an Ace bandage or anything like that?
"A. It had — well, it was wrapped in an Ace bandage type material, but I couldn't tell if it was hard underneath. But it seemed solid. He wasn't moving his elbow.
"Q. Okay, but if [the boyfriend] wanted to, he could have taken the Ace bandage off?
"A. I guess, yeah. Yes.
"Q. Do you know what a splint looks like? Like a hard cast splint?
"A. Well, I couldn't see underneath. The material was over [the] top of it.
"Q. Yeah. But do you know what that looks like?
"A. A splint?
"Q. Yes.
"A. Yes.
"Q. Okay. But your recollection is it just looked like his arm was wrapped by an Ace bandage, but whatever was holding it was not movable; correct?
"A. Yes."
The People claim that the boyfriend also testified that his arm was in a cast for a week. Not so. the closest he came was in the following testimony:
"Q. Actually you received a cast on your left arm; correct?
"A. It's been too long ago.
"Q. You had the cast on your arm for over a week?
"A. I guess so. Correct. I'm not sure. I'm being truthful with you. You told me to be truthful. I can't remember everything, okay?
"Q. . . . But you had a cast on your left arm; correct?
"A. I'm not sure. Like I told you, okay, I'm not sure." (Italics added.)
Defendant also argues that there was insufficient evidence to support the jury's verdict on the great bodily injury enhancement. After the prosecution's case-in-chief, defendant read into the record the statement in the medical records that the victim had fractured ribs. The general rule is that hearsay admitted without objection is substantial evidence sufficient to support a finding. (In re Marquez (1992) 1 Cal.4th 584, 599.) Here, of course, defense counsel did object; however, the objection was overruled on the express ground that the evidence was relevant to a nonhearsay purpose. Defense counsel then failed to request a limiting instruction. By doing so, he effectively failed to object to the jury's consideration of the evidence for its truth. Thus, by the time the case went to the jury, there was even more evidence of great bodily injury.
C. Ineffective Assistance of Counsel.
Defendant contends that his trial counsel rendered ineffective assistance: (1) by failing to request a limiting instruction that the jury was not to consider the contents of the medical records for their truth; and (2) by failing to object when the prosecutor used the contents of the medical records for their truth in closing argument.
" . . . 'In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.]' [Citation.]" (People v. Gamache (2010) 48 Cal.4th 347, 391.)
In this case, at least initially, defense counsel could have had a sound tactical reason for failing to request a limiting instruction. It is well established that competent counsel may choose not to request a limiting instruction, because the instruction may backfire by emphasizing unfavorable evidence. (People v. Hinton (2006) 37 Cal.4th 839, 878; People v. Johnson (1993) 6 Cal.4th 1, 50.)
There could have been no sound tactical purpose, however, for defense counsel's failure to object to the prosecutor's closing argument. The trial court had expressly admitted the evidence for the limited purpose of impeachment. Ordinarily, "urging use of evidence for a purpose other than the limited purpose for which it was admitted is improper argument." (People v. Lang (1989) 49 Cal.3d 991, 1022.) One could argue that because defense counsel had not requested a limiting instruction, the prosecutor's argument was not literally misconduct. (See part II.B, ante.) It was not too late, however, to object and to request a limiting instruction in response to the prosecutor's argument. And there was no downside. Indeed, any concern that defense counsel had about emphasizing the evidence should have been all the more reason to pipe up once the prosecutor did, in fact, emphasize it.
The prosecution argues that, because the contents of the medical records were admissible for impeachment, they were also admissible for their truth. Not so. Under Evidence Code section 1235, a witness's prior inconsistent statement is admissible not only to impeach, but also for its truth. (People v. McKinnon (2011) 52 Cal.4th 610, 672.) There is no such hearsay exception, however, for impeachment evidence in general. (See, e.g., People v. Blacksher (2011) 52 Cal.4th 769, 806 [witness's out of court statements "were admissible not for their truth but solely to impeach her former testimony"].)
Here, defendant essentially testified that he did not believe the boyfriend was seriously injured because (among other things) the medical records said he was not. A witness can be impeached with proof of "[t]he existence or nonexistence of any fact testified to by him." (Evid. Code, § 780, subd. (i).) Thus, the fact that the medical records said the boyfriend was seriously injured was relevant to impeach, whether this was true or not. However, as the trial court recognized, the medical records were inadmissible for their truth, because the prosecution never showed that any hearsay exception applied.
If only defense counsel had objected to defendant's testimony, instead of just repeating, "Hold on," we would not be where we are today. Certainly it is always dicey to object to your own witness's testimony, much less your own client's. Still, a simple "nonresponsive" or "no question pending" objection, coupled with a motion to strike, would not have made defendant look bad in the eyes of the jury.
Fortunately, we need not decide whether this failure to object, standing alone, constituted ineffective assistance.
The prosecution had obtained the medical records in response to a "custodian of records" subpoena. (See Evid. Code, §§ 1560-1567; Pen. Code, § 1326, subds. (b), (c).) Under Evidence Code section 1562, the declaration of a custodian of records, which is required in response to such a subpoena, can be used to lay the foundation for the admission of a document at trial under the business records exception (Evid. Code, § 1270-1272); the custodian need not testify in person.
[footnote continued on next page] [footnote continued from previous page]
We have therefore considered whether the trial court should have admitted the medical records under Evidence Code section 1562; if so, then arguably defense counsel's otherwise ineffective assistance was not prejudicial. (See Lockhart v. Fretwell (1993) 506 U.S. 364, 369371 [113 S.Ct. 838, 122 L.Ed.2d 180].)
We conclude, however, that applying Evidence Code section 1562 in a criminal case would violate the confrontation clause as construed in Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177].) A custodian's declaration is undoubtedly testimonial within the meaning of Crawford. Indeed, even before Crawford, one California court had held that applying Evidence Code section 1560 et seq. in a criminal case would violate the confrontation clause. (People v. Dickinson (1976) 59 Cal.App.3d 314, 319320.)
We are also convinced that defense counsel's failure was prejudicial with regard to the great bodily injury enhancement. The evidence of great bodily injury, while sufficient (see part II.B, ante), was only just barely so. On the continuum of great bodily injury, it was at the extreme low end. Even a bone fracture does not necessarily constitute great bodily injury as a matter of law. (People v. Nava (1989) 207 Cal.App.3d 1490, 14941498.) Thus, it seems reasonably probable that, if the prosecutor had not been allowed to assert that the medical records showed bone fractures and to argue that these fractures were proof of great bodily injury, at least one juror would have had a reasonable doubt about the truth of the enhancement.
On the other hand, we cannot conclude that the failure was prejudicial with regard to the assault conviction. Indeed, defendant does not seem to argue that it was. There was strong evidence that defendant hit the boyfriend with a baseball bat and that he did not do so in self-defense. While the prosecutor's argument was marginally relevant to this issue, we see no reasonable probability that it affected the verdict.
Accordingly, we must reverse the true finding on the great bodily injury enhancement. However, the prosecution will have the option of retrying this enhancement. (See People v. Anderson (2009) 47 Cal.4th 92, 119-123.)
III
REFERRING TO PUNISHMENT IN CLOSING ARGUMENT
Defendant contends that defense counsel rendered ineffective assistance by failing to object when the prosecutor referred to punishment in closing argument.
A. Additional Factual and Procedural Background.
In closing argument, the prosecutor said: "Don't consider things like sympathy or punishment. Now, why no consideration of sympathy or punishment? The reason why is because the judge is allowed to consider both of these things when making the determination. If you say those . . . things happened, that was against the law, he's guilty, then the judge has a separate decision to make which is based on another set of laws and even includes other facts that will determine what type of punishment is appropriate and whether or not some type of custody is appropriate or some type of terms of probation. That's all up to the judge, and he knows that law and he'll know those facts. So that's why we don't want to intermix it." (Italics added.)
Before trial, and again after closing arguments, the jury was instructed, "You must reach your verdict without any consideration of punishment." (CALCRIM No. 101, No. 3550.)
B. Merits.
Defense counsel forfeited any prosecutorial misconduct claim by failing to object and to request an admonition. (People v. Mendoza (2011) 52 Cal.4th 1056, 1098, fn. 30.) We see no reason why an appropriate admonition would not have cured the asserted harm. For example, the trial court could have told the jury that the argument was improper and that it should not consider punishment at all, specifically including whether defendant could or could not be placed on probation. We therefore address this issue solely under the rubric of ineffective assistance of counsel.
It can be misconduct for a prosecutor to argue that the defendant may be placed on probation. (People v. Costa (1956) 141 Cal.App.2d 795, 799-800.) Such an argument tends to "facilitat[e] a conviction of the defendant, by reason of the jury supposing that leniency would be subsequently extended to him." (People v. Peeples (1916) 32 Cal. App. 279, 280.) Defendant claims that, in this case, the reference to probation was also misleading, because he was ineligible for probation.
Actually, however, the prosecutor told the jury that it should not consider punishment. People v. Kegler (1987) 197 Cal.App.3d 72 is precisely on point. There, during closing argument, the prosecutor stated, "'[I]f you find the defendant guilty, it's up to the judge to determine what the sentence is. That means if the defendant gets probation or spend[s] time in custody, the judge alone makes that determination, and he determines how long a person spends in custody.'" (Id. at p. 91, fn. 3.) The appellate court held: "The conduct referred to does not constitute misconduct, defined as 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' [Citation.]" (Id. at p. 91.) It explained: "The prosecutor's comments with respect to probation do not suggest a lenient disposition; rather they were references to the fact that in this case the matter of penalty or punishment was not to be considered by the jury, which is precisely what they were told by [the jury instructions] . . . ." (Ibid.)
Because the prosecutor did not commit misconduct, defense counsel was not ineffective in failing to object.
IV
DEFENDANT'S ADMISSIONS OF THE PRIORS
A. Additional Factual and Procedural Background.
Prior to trial, the allegations regarding the priors were bifurcated, and defendant waived a jury trial on them.
After the jury verdict, there was this colloquy:
"THE COURT: . . . [¶] Counsel, we still have to deal with the adjudication of the priors. What's going to happen there?
"[THE PROSECUTOR]: Do you want to have a trial in front of the judge?
"[DEFENSE COUNSEL]: That's what we would like to do. But just saying — "(Counsel confer off the record.)
"[DEFENSE COUNSEL]: I think I'll talk to my client. I think he could probably admit rather than having a trial.
"THE COURT: . . . [¶] Is that what you wish to do, Mr. Bumanglag, is admit that you have suffered each of the prior offenses, including the one that qualifies as a strike as alleged? Do you admit that's true or not? If you don't, that's fine. We will — the People will present the evidence.
"THE DEFENDANT: Yes.
"THE COURT: All right. It is alleged, Mr. Bumanglag, that you did suffer a conviction for petty theft with a prior on April 10th of 2006 and were sent to state prison for that offense.
"Is that correct, sir?
"THE DEFENDANT: Yes.
"THE COURT: And do you admit that you did suffer a conviction on July 25th of 1997 for unlawful sexual intercourse; that is, sex with someone who was, it says here, under the age of 16 in violation of Penal Code [s]ection 261.5, sub (d).
"THE DEFENDANT: Yes.
"THE COURT: And is it true that you served some time in custody for that offense?
"THE DEFENDANT: Yes.
"THE COURT: And do you admit that you did suffer a conviction in 1989, June 20th, for the offense of burglary of a dwelling which is a serious felony and therefore a so-called strike felony? Do you admit that you did suffer that conviction, sir?
"THE DEFENDANT: Yes.
"THE COURT: Anything further on that issue?
"[THE PROSECUTOR]: I think that — one thing to be clear, the priors for the 666 and the prior for the 261.5, the custody was served in a prison; is that correct?
"THE DEFENDANT: Yes."
The trial court did not advise defendant that he was waiving his right to remain silent or his right to confront the witnesses against him. It also did not advise him regarding the consequences of his admissions.
With regard to the two prior prison term enhancements, defendant was not asked to admit, and did not admit, that he either committed a felony or was in prison within five years after the underlying convictions.
B. Analysis.
1. Need for a certificate of probable cause.
Preliminarily, the People contend that defendant cannot challenge his admissions because he did not obtain a certificate of probable cause. (See Pen. Code, § 1237.5; see also People v. Fulton (2009) 179 Cal.App.4th 1230, 1235-1238.) While this appeal was pending, however, in People v. Maultsby (2012) 53 Cal.4th 296, the California Supreme Court held that, after a defendant has been convicted of the charged offense in a jury trial, he or she does not need a certificate of probable cause to challenge the admission of a prior conviction. (Id. at p. 298.)
2. Failure to advise of rights.
Defendant contends that the trial court failed to advise him of the rights he was giving up before he admitted the various prior allegations.
"[B]efore accepting a criminal defendant's admission of a prior conviction, the trial court must advise the defendant and obtain waivers of (1) the right to a trial to determine the fact of the prior conviction, (2) the right to remain silent, and (3) the right to confront adverse witnesses. [Citation.] Proper advisement and waivers of these rights in the record establish a defendant's voluntary and intelligent admission of the prior conviction. [Citations.]" (People v. Mosby (2004) 33 Cal.4th 353, 356.)
"[I]f the transcript does not reveal complete advisements and waivers, the reviewing 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. [Citation.]" (People v. Mosby, supra, 33 Cal.4th at p. 361.)
In a "silent record" case — when the record does not show that the defendant was advised of or waived any of the pertinent rights — "we cannot infer that in admitting the prior the defendant has knowingly and intelligently waived th[e] right [to trial] as well as the associated rights to silence and confrontation of witnesses." (People v. Mosby, supra, 33 Cal.4th at p. 362; see also People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1421.)
By contrast, in an "incomplete advisement" case — when the record shows that the defendant was advised of and waived some, but not all, of the pertinent rights — we can look to whether the defendant has already undergone a trial on the charged offense and thus would be aware of these rights. (People v. Mosby, supra, 33 Cal.4th at p. 364.) "'[A] defendant, who has just finished a contested jury trial, is . . . []aware that he is surrendering the protections of such a trial' when after being advised of the right to a trial on an alleged prior conviction the defendant waives trial and admits the prior." (Ibid.)
Defendant questions this reasoning. He argues that a trial on a substantive offense is significantly different from a trial on a prior, and hence it is not obvious that one has all the same rights in the latter that one has in the former. The Supreme Court, however, has rejected the identical argument. (People v. Mosby, supra, 33 Cal.4th at p. 364.) We are therefore bound to reject it here.
As defendant concedes, this is an incomplete advisement case. He was advised of — and he did waive — his right to a jury trial on the priors. The only problem is that he was not expressly advised of his right to remain silent or his right to confront adverse witnesses. Thus, we may look to the record of the trial, as well as to his criminal record.
Before trial, there was a discussion of "whether or not, if Mr. Bumanglag testifies, he can be impeached by the fact that he has prior felony convictions . . . ." In addition, the trial court instructed the jury, before trial, that "the defense may . . . present evidence, but is not required to do so. Because he's presumed innocent, the defendant does not have to prove that he's not guilty." After the prosecution rested, defense counsel stated, "My client has told me he would like to testify, your Honor." Thus, it seems pretty clear that defendant knew that he did not have to testify.
In any event, "because [defendant] had, through counsel, confronted witnesses at that immediately concluded trial, he would have understood that at a trial he had the right of confrontation." (People v. Mosby, supra, 33 Cal.4th at p. 364.)
Finally, in an incomplete advisement case, we can also look to the defendant's "previous experience in the criminal justice system[, which] is relevant to a recidivist's '"knowledge and sophistication regarding his [legal] rights."' [Citations.]" (People v. Mosby, supra, 33 Cal.4th at p. 365, fn. omitted.) Here, in 1989, defendant had pleaded guilty to burglary, and in 2006, he had pleaded guilty to petty theft with a prior. We may presume that he received complete advisals each time. (Ibid.)
Defendant questions Mosby's reasoning on this point, too, stating, "The flaw in this argument is that the record does not establish what advisements appellant received when he pleaded guilty." However, if he did not receive complete advisals in the past, he could have challenged the use of these prior convictions as enhancements in this case. (People v. Allen (1999) 21 Cal.4th 424, 426-427.) Hence, it is perfectly logical to presume that he did receive complete advisals. In any case, again, the Supreme Court's reasoning is binding on us.
3. Failure to Advise of Consequences.
Defendant also contends that the trial court failed to advise him of the consequences of his admissions.
"Prior to accepting a defendant's admission that he has suffered a prior conviction, . . . [t]he court must . . . advise the defendant of the impact the finding of prior conviction will have on his term." (People v. Karis (1988) 46 Cal.3d 612, 650.)
"However, unlike the admonition required for a waiver of constitutional rights, advisement of the penal consequences of admitting a prior conviction is not constitutionally mandated. Rather, it is a judicially declared rule of criminal procedure. [Citations.]" (People v. Wrice (1995) 38 Cal.App.4th 767, 770-771.) Thus, "'the failure of the court to advise an accused of the consequences of an admission . . . requires that the admission be set aside only if the error is prejudicial to the accused.' [Citation.]" (People v. Walker (1991) 54 Cal.3d 1013, 1022-1023.)
"'A showing of prejudice requires the appellant to demonstrate that it is reasonably probable he would not have entered his plea if he had been told about the [consequences].' [Citations.]" (People v. Walker, supra, 54 Cal.3d at p. 1023.) On this record, defendant cannot show that he would not have made the admissions if he had been advised of the consequences. Hence, the error is not reversible.
4. Failure to Obtain an Admission That the Five-Year "Washout" Period Did Not Apply.
Finally, defendant contends that his admissions of the prior prison term enhancements were invalid because he was not asked to admit every element of this enhancement.
The People respond that defendant has forfeited this contention by failing to present a meaningful legal analysis supported by citation of authority and citation of facts in the record. Not at all. The argument is fully fleshed out. Although defendant cites only one case — Henderson v. Morgan (1976) 426 U.S. 637 [96 S.Ct. 2253, 49 L.Ed.2d 108] — he explains fully how, in his view, that case supports his contention. Given this, the People's reliance on forfeiture is weak sauce.
The statute defining the one-year prior prison term enhancement provides: "[N]o additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction." (Pen. Code, § 667.5, subd. (b).) The People have the burden of proving that this five-year "washout" period does not apply. (People v. Fielder (2004) 114 Cal.App.4th 1221, 1232.)
"[A] defendant's admission of an alleged enhancement," however, "is valid even if it does not include specific admissions of every factual element required to establish the enhancement." (People v. French (2008) 43 Cal.4th 36, 50.) "[G]enerally an admission of a prior conviction allegation admits all elements of the prior conviction and all elements of offenses necessarily included in the prior conviction offense, just as a plea of guilty admits every element of a charged offense. [Citation.]" (People v. Watts (2005) 131 Cal.App.4th 589, 594-595.) Here, the information expressly alleged that the five-year washout period did not apply. "'Defendant's admission of [a] prior conviction[] is not limited in scope to the fact of the conviction[] but extends to all allegations concerning the [felony] contained in the information.' [Citation.]" (People v. Jackson (1985) 37 Cal.3d 826, 835-836.)
"It is . . . the role of counsel to explain to his client the essentials of the charge. We recognize that in an occasional case counsel may fail to do so, and a defendant may plead guilty or admit an enhancement without having been informed of some critical matter, but that claim is best asserted by a petition for a writ of habeas corpus." (People v. Thomas (1986) 41 Cal.3d 837, 844.) As noted, defendant relies on Henderson v. Morgan, supra, 426 U.S. 637. Significantly, that was a habeas case, not a direct appeal. (Id. at p. 639.)
Defendant points out that this record suggests that he may be entitled to the benefit of the five-year washout period with respect to his 1997 conviction for statutory rape (Pen. Code, § 261.5, subd. (d)). According to the probation report, after serving a prison term for that offense, he was released on parole in 1999; he was not convicted of another felony until 2006. Although the record does not reflect when he committed that felony, he has asked us to take judicial notice of the register of actions in that case, which lists a "[v]iolation [d]ate" in 2006.
We decline to take such judicial notice, mainly because it is irrelevant. If this particular enhancement allegation is, in fact, untrue, defendant's remedy is by way of habeas.
We also must decline because, while we can take judicial notice of the existence of court records, we cannot take judicial notice that statements in them are true. (People v. Hernandez (2011) 51 Cal.4th 733, 741, fn. 3.)
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V
DISPOSITION
The conviction for assault with a deadly weapon is affirmed. The strike prior, the prior serious felony conviction enhancement, and the two prior prison term enhancements are also affirmed. The great bodily injury enhancement is reversed. On remand, if the prosecution elects not to retry the great bodily injury enhancement or fails to retry it in a timely manner (see Pen. Code, § 1382, subd. (a)(2)), the trial court shall promptly resentence defendant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.J.
MILLER
J.
We recognize that even the testimony of a witness who contradicts himself can constitute substantial evidence. (See People v. Avila (2006) 38 Cal.4th 491, 589-590.) Here, however, when the boyfriend's testimony is viewed in context, no reasonable juror could have understood him to be testifying that a cast was, in fact, on his arm for a week. At most, he was agreeing with the prosecutor that this was a possibility.