Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F08905313. James M. Petrucelli, Judge.
Julia Freis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Gomes, J.
PROCEEDINGS
On January 7, 2009, appellant, Jeremiah Anthony Cortez, was found guilty after a jury trial of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1), count one) and carrying a loaded firearm (§ 12031, subd. (a)(1), count two). The jury acquitted appellant of a misdemeanor allegation that he possessed a hypodermic needle or syringe (Bus. & Prof. Code, § 4140, count three). At the conclusion of the trial, the appellant admitted a prior prison term enhancement (§ 667.5, subd. (b)) and a prior serious felony conviction within the meaning of the three strikes law (§ 667, subs. (b)-(i) & § 1170.12, subs. (a)-(d)). In taking appellant’s admission, however, the trial court failed to give appellant any of his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl).
Unless otherwise indicated, all statutory references are to the Penal Code.
On February 5, 2009, the court sentenced appellant to prison on count one for the midterm of two years, which it doubled to four years pursuant to the three strikes law. Appellant’s sentence on count two was stayed pursuant to section 654. The court imposed a consecutive prison term of one year for the prior prison term enhancement. Appellant contends, and respondent concedes, the trial court erred in failing to give him any constitutional advisements.
Because the only issue on appeal concerns the failure of the trial court to give Boykin/Tahl advisements to appellant in taking his admission of the prior serious felony and prior prison term allegations, we do not recount the facts of his case.
DISCUSSION
The parties concur that the trial court failed to give appellant any Boykin/Tahl advisements. We agree and will reverse appellant’s admission of the special allegations and his sentence.
In the instant case, the prosecutor noted after the jury was excused that there remained the issue of appellant’s priors. The court had an unreported sidebar conversation with the prosecutor and defense counsel. The court noted there was an allegation of a prior serious felony conviction for robbery in 2003. The court asked appellant if he was admitting the prior and appellant replied yes to the court’s question. The court then asked appellant if he was committed to state prison and if his conviction was a felony conviction. Appellant replied yes to both questions. The court failed to give appellant a single Boykin/Tahl advisement.
The California Supreme Court extended the application of the Boykin-Tahl rule to cases in which the defendant admits a prior conviction for sentencing purposes in In re Yurko (1974) 10 Cal.3d 857, 863-864 (Yurko). In People v. Howard (1992) 1 Cal.4th 1132, 1175, the Supreme Court held that a Yurko error involving Boykin/Tahl admonitions is reviewed by the test used to determine the validity of guilty pleas under the federal Constitution. A plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of circumstances. The Howard court stated it would continue to require that trial courts expressly advise defendants on the record of their Boykin/Tahl rights. Errors in the articulation and waiver of those rights, however, require the plea to be set aside only if the plea fails the federal test. (Ibid.)
In People v. Campbell (1999) 76 Cal.App.4th 305, as in the instant case, there were no admonitions with respect to any of the applicable constitutional rights. The appellate court rejected the contention that it could infer from defendant’s past experience and familiarity with the criminal justice system that he intelligently and voluntarily waived his rights. (Id. at p. 310.) The Campbell court reasoned that if the defendant’s experience was sufficient to constitute a voluntary and intelligent waiver of constitutional rights, courts would rarely have to give Boykin/Tahl admonitions. The Campbell case found that under Howard, we are not permitted to imply knowledge and a waiver of rights on a silent record. (Ibid.)
The record here is devoid of any showing that appellant’s admission of the prior serious felony and conviction and prior prison term enhancement was intelligent and voluntary, and, accordingly, we must reverse and remand for further proceedings.
DISPOSITION
Appellant’s convictions are affirmed. His admission of the prior serious felony conviction and prior prison term enhancement is reversed, and the case is remanded to the trial court to determine the truth of these allegations and for resentencing in accordance with the views expressed above. After resentencing, the trial court is directed to prepare an amended abstract of judgment and forward it to the proper authorities.