Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD197819, John M. Thompson, Judge.
IRION, J.
A jury convicted Jesus Camacho of exhibiting harmful matter to a minor (Pen.Code, § 288.2, subd. (a)). Camacho subsequently admitted that he had a "serious felony" prior conviction (§ 667, subd. (a)(1)), a strike prior (id., subd. (e)(1)), and that he was released on bail when he committed the offense (§ 12022.1, subd. (b)). The trial court sentenced him to four years eight months in prison.
All statutory references are to the Penal Code unless otherwise specified.
On appeal, Camacho contends that his conviction must be reversed because: (i) the trial court erred in failing to instruct the jury on a lesser included offense of attempted exhibition of harmful matter to a minor; (ii) there was insufficient evidence to support the jury's conclusion that Camacho acted with the statutorily prohibited intent; (iii) there was insufficient evidence to support the jury's finding that the photograph Camacho exhibited to the minor was "harmful" as defined in the Penal Code; and (iv) the court erred by misreading an instruction defining an element of the offense. In addition, Camacho argues that his admissions to the prior serious felony, prior strike and on-bail allegations subsequently used to enhance his sentence must be reversed because he was not properly admonished of the constitutional rights he was waiving, or the penal consequences that could follow, in making the admissions.
We conclude that with the exception of the last contention, Camacho's claims are without merit. With respect to Camacho's admissions to the sentence enhancement allegations, the Attorney General concedes, and we agree, that the trial court failed to deliver the requisite admonitions as required by our Supreme Court. As we are unable to find the failure harmless under the controlling standard of review, we reverse Camacho's admissions and remand to the trial court for a new adjudication of the allegations, either by admission or trial, and for resentencing. In all other respects, we affirm the judgment.
FACTS
On March 16, 2006, 13-year-old Rebecca C. was walking to a bus stop on Imperial Avenue in San Diego. Camacho, who was then 28 years old, pulled his truck up next to her and asked if she would go for a ride with him. Rebecca said "No," but Camacho persisted, repeatedly driving around the block and approaching Rebecca in his truck as she walked. Camacho showed Rebecca money and offered to take her to school, the beach or breakfast. Rebecca continued walking, and saying "No." A witness who observed Camacho's repeated advances toward Rebecca called 911 and gave the police the license number of Camacho's truck.
When Rebecca reached the bus stop, Camacho said, "Do you want to see some pictures of a party I went to?" and then showed her a photograph of himself with his head between the legs of naked stripper who was lying on her back on a bed. Camacho also had a second photograph of himself with two strippers kissing, but Rebecca looked away before viewing it. Camacho then asked Rebecca to get in his truck, but Rebecca again declined.
At trial the prosecution also presented evidence that Rebecca told a police detective that Camacho yelled at her, "Get in the fucking car now," and later told her that if she did not get in, he would pull her in by her hair. Rebecca did not recall these statements at trial. The statements formed the basis for a charge of attempted kidnapping; the jury deadlocked on that charge and a mistrial was declared.
Finally, a police car drove by and Camacho, after looking in its direction, drove away. Responding to the 911 call, police soon arrived and interviewed Rebecca about the incident. Camacho was later identified and arrested.
I
The Trial Court Did Not Err in Failing to Sua Sponte Instruct the Jury on the Lesser Included Offense of Attempted Distribution of Harmful Matter to a Minor
Camacho contends that because the trial court failed to sua sponte instruct the jury on the offense of attempted exhibition of harmful matter to a minor (a lesser included offense of the offense for which he was convicted) his conviction must be reduced to attempt.
A trial court errs "if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 162.) An instruction on a lesser included offense is not required, however, "when the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime" (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5), and similarly no instruction is required when "there is no proof, other than an unexplainable rejection of the prosecution's evidence, that the offense was less than that charged." (See People v. Kraft (2000) 23 Cal.4th 978, 1063 (Kraft).)
Camacho contends that an instruction on attempted exhibition of harmful matter to a minor was required in the instant case because "[t]he evidence indicated that [Camacho] handed the pictures towards Rebecca," and thus the jury could have concluded that he tried, but was unsuccessful in exhibiting harmful material. (Italics added.) We disagree. On the evidence presented, there was no legally cognizable theory — apart from "an unexplainable rejection" of not only the prosecution's evidence, but also the defendant's testimony— upon which the jury could conclude that Camacho was guilty only of attempt, rather than the completed offense of exhibition of harmful matter to a minor. (Kraft, supra, 23 Cal.4th at p. 1063.)
Contrary to Camacho's contention on appeal, there was no dispute at trial about whether Camacho actually showed (i.e., exhibited) Rebecca the picture of himself with his head in between the stripper's legs. Rebecca testified that Camacho showed her the picture and described it for the jury. Camacho confirmed the existence of the picture in his testimony, stated that he pulled the picture out of his pocket, said "Check it out," and that Rebecca leaned forward and said, "Oh." Camacho then explained that "[f]rom her reaction," he realized that his action in showing her the picture was "stupid." On cross examination, Camacho was asked, "You showed the picture to a 13-year old girl . . . ?"; he responded, "Yes I did." Then, when asked why he had done so, Camacho responded, " I don't know why I showed it to her." (Italics added.) Given this evidence, there is no reasonable basis for the jury to have concluded that Camacho was guilty solely of attempted exhibition of harmful material to a minor. Camacho was either guilty of the completed offense (exhibiting the picture to her) or not at all (e.g., if the picture was not "harmful," or if Camacho showed it to her without the requisite intent), and consequently no sua sponte instruction was required.
Even with respect to the second photograph (or considering the two photographs together), Camacho would have been guilty of a completed offense, not attempt, as long as he "offer[ed]" to show it to Rebecca, something that was, again, not disputed in the evidence presented to the jury. (§ 288.2, subd. (a) [completed offense occurs when a defendant "exhibits, or offers to . . . exhibit" harmful material to a minor].)
The jury was, in fact, instructed on the lesser included offense of misdemeanor exhibition of harmful material to a minor, which would have applied if the jury concluded that Camacho exhibited (or offered to exhibit) a harmful picture to Rebecca without the specific intent required for the felony.
II
The Evidence Was Sufficient to Allow the Jury to Conclude that Camacho Exhibited the Photograph to Rebecca with the Prohibited Intent
Camacho contends that his conviction must be reversed because — in light of his own testimony that "he showed the pictures to the minor . . . just to show off or to shock her" — the record does not contain substantial evidence to support the jury's verdict that he acted with the prohibited intent. (§ 288.2, subd. (a) [felony is established only if harmful material exhibited to a minor "with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of [defendant] or [the] minor, and with the intent or for the purpose of seducing [the] minor"].) We disagree.
In evaluating a challenge to the sufficiency of the evidence, "we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66 (Snow).) Reversal is not warranted "unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331 (Bolin).)
With respect to challenges to the sufficiency of evidence to support a jury's finding of intent, we are mindful on appeal that "[t]he question of intent is one of fact" and, as it is "rarely susceptible of direct proof," must "usually be inferred from a consideration of all the facts and circumstances shown by the evidence." (People v. Pitts (1990) 223 Cal.App.3d 606, 887, 888 (Pitts); People v. Falck (1997) 52 Cal.App.4th 287, 299 [same].) Consequently, "[a] jury can conclude that defendant had the requisite intent from the circumstances surrounding the incident in question." (Pitts, at p. 888.) " '[I]f the evidence is sufficient to justify a reasonable inference that the requisite intent existed, the finding of its presence in a particular case, may not be disturbed on appeal [citations].' " (Ibid.)
As Camacho never confessed to having the prohibited intent, the jury was required, as is generally the case, to discern his intent from the circumstances surrounding the incident. (Pitts, supra, 223 Cal.App.3d at pp. 887-888.) In this case, those circumstances were sufficient to support a reasonable conclusion that Camacho was acting with the intent prohibited by statute, i.e., that he showed Rebecca the photograph of himself with a naked stripper "with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of [himself] or [the] minor, and with the intent or for the purpose of seducing [the] minor." (§ 288.2, subd. (a).)
Rebecca testified that Camacho repeatedly drove around the block, asking her — a 13-year-old girl who he had never met — to enter his truck; showed her seven $100 bills, saying, "I've got some money"; and finally showing her a photograph of himself with his head between the legs of a naked stripper. Camacho further informed the jury in his own testimony that he had been to a strip club earlier that day, was trying to "pick [Rebecca] up," thought Rebecca was "cute" and that she was "interested" in him, and, thinking she was around 15 or 16 years old, told her he was 19. Camacho explained that even though he could tell Rebecca was "young," she "kept smiling at me," suggesting to Camacho that her "no" was not really a "no," but a "maybe."
Camacho relies extensively in his two challenges to the sufficiency of the evidence on defense evidence to establish his contention that the "whole record" demonstrates that the evidence was insufficient to support his conviction. (People v. Bassett (1968) 69 Cal.2d 122, 138 & fn. 15 ["whole record" review requires an evaluation of "the entire picture of the defendant put before the jury" and cannot be limited to "isolated bits of evidence selected by the respondent"].) Consequently, we necessarily include the defense evidence, and particularly Camacho's own testimony, in our evaluation of his challenge to the sufficiency of the evidentiary record to support his conviction. (Cf. People v. Takencareof (1981) 119 Cal.App.3d 492, 502 [in reviewing for substantial evidence, "[t]he appellate court must consider not only the case of the prosecution, but the entire record, including the defense testimony"]; People v. Chicanti (1999) 71 Cal.App.4th 956, 963 [finding substantial evidence in support of conviction based, in part, on defendant's testimony], disapproved on other grounds in People v. Hudson (2006) 38 Cal.4th 1002, 1008-1010 & fn. 3.)
Finally, while Camacho emphasizes that the sole direct evidence of intent was his own testimony that he was acting merely "to show off," the testimony to which he refers was significantly more incriminating. When the prosecutor asked Camacho why he showed Rebecca the picture, he answered, "I don't know why." Then Camacho began to elaborate on this answer, acknowledging that he "had quite a while to ask myself that question," and adding:
"[I]t was just like a childish kind of impulse. She was young. I was pretending to be young. I kind of -- you could say kind of reverted back to when I was 12, 13 years old, you know, that childish mentality. Some kid comes to school with a Playboy and everybody is looking at it and laughing you know. I don't know why I showed it to her. I just -- I guess I was, like, trying to show off, you know."
The jury could rationally have interpreted this answer to, in fact, support the inference that Camacho possessed the prohibited intent – to arouse himself or Rebecca, and seduce her (e.g., "She was young"; "I was pretending to be young") — rather than merely crediting his final statement, after repeatedly answering, "I don't know," that he was merely "trying to show off."
In sum, given the totality of the evidence before the jury surrounding Camacho's exhibiting to Rebecca a picture of himself with his head between the legs of a stripper, there was substantial evidence for the jury to reasonably conclude that Camacho possessed the requisite unlawful intent. Consequently, we cannot overturn the jury's verdict on this ground. (People v. Lyles (1957) 156 Cal.App.2d 482, 486 [where the evidence "is sufficient to justify a reasonable inference that the requisite intent existed, the finding of its presence in a particular case, may not be disturbed on appeal"]; People v. Massie (2006) 142 Cal.App.4th 365, 372 [in evaluating whether circumstantial evidence demonstrates requisite intent, "[t]he proper inferences to be drawn are the province of the jury and not an appellate court"].)
III
The Evidence Was Sufficient to Establish that the Photograph Was "Harmful"
Camacho next contends that the evidence was insufficient to sustain a finding that the photograph was "harmful," as that term is defined in the Penal Code. Again, Camacho relies on his own testimony to demonstrate that the "record as a whole" establishes the insufficiency of the evidence.
Under section 313, material is considered " '[h]armful' " for purposes of section 288.2, subdivision (a) if, "when considered as a whole: 1. It shows or describes sexual conduct in an obviously offensive way; 2. A reasonable person would conclude that it lacks serious literary, artistic, political, or scientific value for minors; AND 3. An average adult person, applying contemporary statewide standards, would conclude it appeals to prurient interest." (CALCRIM No. 1140; § 313.)
This definition "essentially tracks" the three-pronged test for obscenity that can be constitutionally regulated as articulated in Miller v. California (1973) 413 U.S. 15, 24: " '[1] whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; [2] whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and [3] whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.' " (People v. Hsu (2000) 82 Cal.App.4th 976, 992.)
Again applying the substantial evidence standard of review, with the additional caveat that it " ' "is the exclusive province of the . . . jury to determine the credibility of a witness" ' " (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith)), we conclude that there was sufficient evidence from which a reasonable jury could conclude that the photograph Camacho showed to Rebecca was "harmful." (§§ 288.2, subd. (a), 313.)
While the photograph that Camacho showed Rebecca was not admitted at trial (Camacho testified he discarded it the day after the incident), it was described by both Camacho and Rebecca in vivid detail, with Camacho even explaining how the photograph had come into existence. Camacho testified a photographer with a Polaroid camera had taken it in exchange for a fee at a strip club in Tijuana. Camacho explained that the stripper he was watching "la[id] down in front of" him, "open[ed] her legs" and while she was "sitting there with her legs open," Camacho "grabbed her behind, turn[ed] around, look[ed] at the camera," and "st[u]ck my tongue out," and the cameraman "snapped" the photo. Rebecca described the photograph similarly, adding, however, that it depicted a completely nude "girl laying down," with Camacho's head "facing her" and "in her vagina."
On appeal, Camacho argues that the record "seems to support Mr. Camacho's version," which suggested that his face was pointed toward the camera, not in the stripper's vagina, but whether or not we agree with this assertion, it is the jury's role to assess credibility. (Smith, supra, 37 Cal.4th at p. 739; People v. Martinez (2003) 113 Cal.App.4th 400, 412 ["it is not within our province to reweigh the evidence or redetermine issues of credibility"].) A reasonable jury could have credited Rebecca's testimony over the self-interested testimony of Camacho with respect to the more prurient details of the photograph, and determined, based on the whole of the testimony, that the photograph depicted Camacho with his face, at least partly, in the nude stripper's vagina, and with his tongue out. (Bolin, supra, 18 Cal.4th at p. 331 [reversal is not warranted "unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]' "].)
Given the above-described understanding of the photograph, the jury could reasonably conclude that the photograph satisfied the definition of " '[h]armful' " matter under section 313, i.e., that it depicted sexual conduct in an obviously offensive way, lacked artistic merit and appealed to prurient interests. Consequently, we are not authorized to overturn the jury's verdict on this ground. (Snow, supra, 30 Cal.4th at p. 66.)
IV
The Indication in the Transcript that the Court Misread an Instruction Defining "Seducing a Minor" Does Not Warrant Reversal
Camacho contends that the trial court misread the instruction defining the requisite element of "seducing a minor," requiring reversal. We disagree.
As noted earlier, an element of the felony offense of exhibiting harmful material to a minor is that the offender possesses the specific intent to, among other things, seduce the minor. (§ 288.2, subd. (a).) The transcript of proceedings indicates that the court read the instruction regarding the definition of "seducing a minor" in section 288.2 as follows: "To 'seduce a minor' means to entice the minor or engage in a sexual act involving physical contact between the seducer and the minor." (Italics added.) In fact, the instruction should read: "To seduce a minor means to entice the minor to engage in a sexual act involving physical contact between the seducer and the minor." (CALCRIM No. 1140, second italics added.)
Even assuming that the oral instruction is an accurate transcription of the judge's statements to the jury, we do not believe that reversal is warranted on this ground. Our Supreme Court has repeatedly held that "the misreading of a jury instruction does not warrant reversal if the jury received the correct written instructions," and Camacho cites no contrary authority. (People v. Prieto (2003) 30 Cal.4th 226, 255; People v. Box (2000) 23 Cal.4th 1153, 1212 ["misreading instructions is at most harmless error when the written instructions received by the jury are correct"].)
The fact that neither party objected to the court's reading of the instruction suggests that there was no error, but simply a mistrancription, a suggestion that is supported by the fact that the transcription of the court's instructions contains a number of other apparent mistranscriptions. Nevertheless, we assume for purposes of this appeal that the transcript accurately represents the trial court's oral pronouncements.
Here, the judge's oral instructions were followed by the presentation to the jury of proper written instructions that accurately stated the proper definition of "seduc[ing] a minor" to be applied. In its oral instructions, the court instructed the jury that they would receive a copy of the instructions in written form. Given the complicated network of definitions and elements upon which the jury's verdict depended in this case, it would be implausible to assume that the jurors worked through the elements of the offenses based solely on their recollection of the oral instructions they received. Rather, as there is no indication to the contrary, we presume that the jury followed the proper written instructions it received for purposes of its deliberations, rather than the oral instruction containing the misstatement noted by Camacho on appeal. (People v. Osband (1996) 13 Cal.4th 622, 687-688 [stating in assessing challenge to oral instructions that differed from proper written instructions that "[t]he jurors had before them six copies of the written version when they began to deliberate, and we presume that they were guided by those copies"].) Consequently, we reject the contention that reversal is warranted on this ground.
V
Remand Is Required for Relitigation of the Sentence Enhancement Allegations
Camacho contends that his admissions to sentence enhancement allegations that he had a prior strike/serious felony conviction and was on bail at the time of the offense are invalid because the record does not reveal that the admissions were knowing and voluntary. The Attorney General concedes the absence of the requisite admonitions, but contends that the error was harmless.
A. Procedural History
Prior to trial, the court engaged in the following colloquy with counsel:
"[Prosecutor]: Your Honor, I do have an exhibit I introduced at the prelim, out on bail. I have a certified copy of the docket, out [on] bail enhancement. That would list the charges.
"The Court: I presume that you are --
"[Defense Counsel]: Bifurcating.
"The Court: -- Making a motion to bifurcate?
"[Defense Counsel]: Correct.
"The Court: Are you going to -- Does he want to admit the prior? Does he want me to try it without the panel? Does he want a jury trial on whether or not he was out on bail? You have to make that decision at some point.
"[Defense Counsel]: We'll make an admission.
"The Court: So we'll go ahead and bifurcate the 12021 enhancement."
The sentence enhancement allegations were next raised after the jury returned its verdict on the underlying counts.
"[Prosecutor]: I don't think we have taken a formal admission on the allegation for count 1.
"The Clerk: And there's the prior, also.
"[Prosecutor]: The out-on-bail enhancement.
"The Court: Mr. Camacho, it's alleged that -- [defense counsel] indicated pretrial that you would be in a position to admit the allegations. It's been alleged that in this particular case you committed these offenses while out on bail pursuant to Penal Code section 12022.1[, subdivision (b)]. Do you admit that allegation, sir?
"The Defendant: Yes, Your Honor.
"The Court: It is also alleged that you suffered a serious felony prior as well as a strike prior coming out of the same case, SCD 194507. The date of conviction was February 2006, out of San Diego. This is a domestic violence case.
Do you admit, sir, that you did suffer that prior as both a first serious felony prior as well as a strike prior?
"The Defendant: Yes."
The record does not reveal that Camacho was ever advised of the constitutional rights he was waving by entering admissions to the allegations or that he was advised of any of the penal consequences that would follow from the admissions.
B. Applicable Legal Principles
In In re Yurko (1974) 10 Cal.3d 857, 861-865 (Yurko), our Supreme Court held that trial courts are required to advise defendants who intend to admit prior convictions that form the basis for sentencing enhancements that they have the right to a jury trial on the prior, the right to confront and cross-examine witnesses, and the right against self-incrimination (Boykin/Tahl rights). (Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.) The court is also required to insure that the accused has been advised of "the full penal effect of a finding of the truth of an allegation of prior convictions." (Yurko, at p. 865.) Under Yurko, error has occurred unless "[t]he record . . . clearly reflect[s] both the admonitions given the accused and the fact of the accused's waivers . . . ." (Ibid.)
Our Supreme Court has stated that the requirements announced in Yurko apply to sentencing enhancements other than those for a defendant's prior convictions, such as the on-bail enhancement at issue in the instant case. (People v. Adams (1993) 6 Cal.4th 570, 576 [stating that "an admission of an allegation made in the information or indictment for the purpose of increasing the punishment otherwise applicable to the offense" is subject to the Boykin/Tahl requirements recognized in Yurko.) The Attorney General, accordingly, agrees that Yurko's requirements apply to the on-bail enhancement, and we accept that concession as consistent with our Supreme Court's pronouncements on the question.
The absence of proper Yurko admonitions, while error, will not always require reversal of a defendant's admissions. Rather, "if 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 [sentencing enhancement allegation] was intelligent and voluntary in light of the totality of circumstances." (People v. Mosby (2004) 33 Cal.4th 353, 361 (Mosby).)
C. Analysis
While conceding that the requisite admonitions are absent from the record in the instant case, the Attorney General contends that Camacho's admissions need not be reversed because Camacho had previous experience with the criminal justice system, had participated in a jury trial prior to making his admissions and was represented by counsel, and therefore "must have been aware" of the requisite Yurko information. We disagree.
Contrary to the Attorney General's contention, the record does not contain a sufficient showing of a knowing and voluntary waiver of Camacho's Boykin/Tahl rights under Yurko. As noted above, the transcript of proceedings reveals what can only be characterized as a bare bones discussion of the sentence enhancement allegations. Prior to trial, the trial court asked Camacho's counsel whether Camacho "want[ed]" a trial on the enhancements, and then later, following the prosecutor's request to "take[] a formal admission" on the allegations, recited the allegations and asked Camacho, "Do you admit . . ., sir," each of the allegations. This record does not "clearly reflect," or indicate in any respect, that Camacho was informed that he had a right to a jury trial on the allegations at which he would also have the right to confront and cross-examine witnesses, and a right against self-incrimination; nor is there any indication that the court informed Camacho of "the full penal effect of a finding of the truth of an allegation of prior convictions." (Yurko, supra, 10 Cal.3d at p. 865.)
While one would generally assume that any represented defendant would be informally advised of the requisite information by counsel, we are not permitted to make such an assumption. The rule announced in Yurko requires that the advisements be placed on the record for the very reason that doing so is "the only realistic means of assuring that the judge leaves a record adequate for review." (People v. Howard (1992) 1 Cal.4th 1132, 1178-1179 (Howard).)
Given the total absence of anything resembling the requisite Yurko admonitions in the record, we do not believe that the other factors referenced by the Attorney General, which are generally used to buttress incomplete admonitions, are sufficient to cure the Yurko error. (Mosby, supra, 33 Cal.4th at p. 362 [recognizing that when defendants do not "expressly waive their right to 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"]; People v. Campbell (1999) 76 Cal.App.4th 305, 309-311 (Campbell) [reversing for Yurko error in similar procedural circumstance because "there were no admonitions with respect to any of the three constitutional rights"].) In fact, the factors cited by the Attorney General — that Camacho was represented; he had previous experience with the criminal justice system; and he had a trial on an underlying offense — will be present in the vast majority of cases in which a defendant admits a sentence enhancement allegation. To hold that these factors are themselves sufficient would eviscerate the Yurko requirements, in our view, violating both the letter and spirit of controlling Supreme Court case law. (Cf. Campbell, at p. 310 [rejecting contention that experience with the criminal justice system is sufficient to demonstrate a knowing and voluntary waiver because if that were the case, "courts would rarely be required to give Boykin/Tahl admonitions"].)
Even in those circumstances when our Supreme Court has concluded that the absence of requisite admonitions was harmless because the record demonstrated a knowing and voluntary waiver, it has consistently emphasized the importance of providing the admonitions in future cases. (Howard, supra, 1 Cal.4th at pp. 1178-1179 [emphasizing that "the essential wisdom of explicit waivers remains beyond question" as they "are the only realistic means of assuring that the judge leaves a record adequate for review"]; Mosby, supra, 33 Cal.4th at p. 365, fn. 3 ["Although it may not be reversible error, failing to give full advisements and obtain express waivers carries a high cost. 'As a consequence of the . . . failure to obtain valid admissions of readily provable serious priors, appeals are filed, briefs are prepared, appellate research and record review are conducted, argument is heard, appellate opinions are written, matters are remanded to trial courts, defendants are transported from prisons to county jails to courtrooms, attorneys are appointed to represent defendants, and prior allegations are belatedly relitigated' "]; cf. Campbell, supra, 76 Cal.App.4th at p. 311 [stating that we "continue to be concerned by the frequency by which trial courts fail to provide the necessary admonitions" and "urg[ing] the trial courts to comply with the well known, easily followed rules set forth in In re Yurko"].)
We recognize, of course, that at least with respect to the prior conviction, there appears to be little possibility that Camacho would prevail in any litigation on the matter, as he admitted the conviction during his testimony at trial and was sentenced on that case during the instant sentencing proceeding. Nevertheless, in evaluating a Yurko challenge, "[t]he focus is not on whether a prior would have been found true, but on whether the defendant knew of his constitutional rights." (People v. Stills (1994) 29 Cal.App.4th 1766, 1770-1771.) Here, as there is an insufficient record for us to conclude that Camacho was aware of the rights he was waiving with his admissions or the penal consequences of those admissions, we must remand the case for the allegations to be relitigated. (Id. at p. 1771; Campbell, supra, 76 Cal.App.4th at p. 311.)
DISPOSITION
The judgment is affirmed, with the exception that Camacho's admissions regarding the on-bail, prior strike and prior serious felony sentencing enhancement are reversed, along with the sentencing enhancements imposed. The matter is remanded to the trial court for a new adjudication of those allegations, either by admission or trial, and for resentencing.
WE CONCUR: HALLER, Acting P. J., McDONALD, J.