Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA094837, Michael L. Schuur, Judge.
Jonathan B. Steiner and Ronnie Duberstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Lawrence M. Daniels and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Deron Early was convicted, following a jury trial, of one count of petty theft with a prior theft-related conviction in violation of Penal Code section 666. Appellant admitted the prior theft-related conviction before trial. The trial court found true the allegation that appellant had served a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced appellant to the mid-term of two years in prison for the current conviction plus a one-year enhancement term for the section 667.5 enhancement.
All further references are to the Penal Code unless otherwise indicated.
Five months before the trial of this matter, appellant pled no contest to a charge of receiving stolen property in case number VA087729 and was placed on formal probation. His trial in this matter also constituted a probation violation hearing in that case. Sentence in the present case was ordered to run concurrently to the three year sentence in case number VA087729.
Appellant appeals from the judgment of conviction, contending that his admission of a prior theft-related conviction was invalid and that in any event the conviction itself did not satisfy the requirements of section 666. We affirm the judgment of conviction.
Facts
On April 14, 2006, appellant left a Home Depot in Cerritos with a cart full of merchandise for which he did not pay. He was detained by one of the store's loss prevention officers until Los Angeles County Sheriff's Deputies arrived and arrested him.
Discussion
1. Advisements
Appellant was not advised of his Boykin-Tahl rights before admitting that he had suffered a prior theft related conviction. Appellant contends that such advisements were required. We do not agree.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
Section 666 provides: "Every person who, having been convicted of petty theft, grand theft, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496 and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petty theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison."
In Boykin, the United States Supreme Court held that it was error for a trial judge to accept a defendant's guilty plea "without an affirmative showing that it was intelligent and voluntary." (Boykin v. Alabama, supra, 395 U.S. at p. 242.) In Tahl, the California Supreme Court held that Boykin required that when a trial court accepts a guilty plea, "the record must contain on its face direct evidence that the accused was aware, or made aware, of his right to confrontation, to a jury trial, and against self-incrimination." (In re Tahl, supra, 1 Cal.3d at p. 132.) The California Supreme Court later held "as a judicially declared rule of criminal procedure" that an admission of a prior conviction allegation requires express waivers of the right to confrontation and jury trial and the privilege against self-incrimination. (In re Yurko (1974) 10 Cal.3d 857, 863-864.)
There are only two published cases which directly address the issue of whether Boykin-Tahl advisements are required before a defendant admits a prior theft related conviction within the meaning of section 666: People v. Shippey (1985) 168 Cal.App.3d 879 and People v. Witcher (1995) 41 Cal.App.4th 223. The Court in Shippey held that such advisements are required; the Court in Witcher held that they are not. Appellant characterizes these differences as a conflict and urges us to follow Shippey. We decline appellant's invitation.
In Shippey, the Court of Appeal simply stated that it could "perceive no logical reason why the Yurko rule would not be applicable" to a defendant's prior petty theft conviction. (People v. Shippey, supra, 168 Cal.App.3d at p. 888.)
Shippey was decided before our Supreme Court's decisions in People v. Bouzas (1991) 53 Cal.3d 467. Witcher was decided after that case. We find the reasoning of Witcher to be consistent with Bouzas and subsequent cases involving related issues.
In Bouzas, our Supreme Court noted that "[n]umerous other cases, beginning with our own in 1881, have long held [that the fact of a prior conviction is not an element of petty theft with a prior petty theft conviction], and have treated the prior conviction under former section 666 as a sentencing factor for the court, and not as an 'element' of an offense to be determined by a jury." (People v. Bouzas, supra, 53 Cal.3d at p. 473.) The Court reaffirmed that "the prior conviction and incarceration" requirement of section 666 is a sentencing factor for the trial court and not an element of the section 666 offense that must be determined by the jury. (Id. at p. 480.)
The Court found that when the Legislature revised and merged former sections 666 and 667 to create the present version of section 666, the Legislature was presumed to have been aware of and acquiesced in the courts' 100 years of case law holding that the prior conviction was a sentencing factor and intended that the present version receive the same interpretation. (People v. Bouzas, supra, 53 Cal.3d at p. 475.)
The Court of Appeal in Witcher built on Bouzas, holding that Boykin-Tahl advisements and waivers were not required when a defendant admits a prior conviction for purposes of section 666. The Court noted that Bouzas permitted a defendant charged with a section 666 violation to stipulate to the fact of a prior conviction and incarceration to preclude the jury from learning of the conviction. The Court reasoned: "Because the prior convictions and incarcerations were not elements of the section 666 offense which the jury was required to determine, appellant's pretrial 'admission' of them was, in effect, a stipulation to their validity for the purpose of keeping them from the jury. Appellant has cited no authority for the proposition that a defendant must be admonished about his constitutional rights when he enters into such a self-serving stipulation, and we decline to create such authority. He has received the benefit of his bargain. The prosecution was not allowed to prove his prior felony convictions and incarcerations before the jury. We will not now countenance an after-the-fact contention that his stipulation did not meet minimum constitutional standards." (People v. Witcher, supra, 41 Cal.App.4th at pp. 233-234.) We agree with this reasoning.
Witcher is also consistent with two cases decided after Bouzas. In People v. Adams, the California Supreme Court held that Boykin-Tahl advisements are not required when a defendant stipulates to the factual allegation that he was released on bail when the charged offense occurred. Release on bail is an element of a section 12021.1 sentence enhancement. (People v. Adams (1993) 6 Cal.4th 570, 582-583.) In People v. Newman, the California Supreme Court held that Boykin-Tahl advisements are not required when a defendant stipulates to his status as a felon for purposes of the offense of possession of a firearm by a felon. (People v. Newman (1999) 21 Cal.4th 413, 422-423.) The Court specifically rejected the defendant's argument that for Boykin-Tahl purposes there is an important distinction between stipulations to elements of a sentence enhancement and those involving elements of a substantive offense. (People v. Newman, supra, 21 Cal.4th at p. 420.)
The reasoning of Witcher is also consistent with the United States Supreme Court's decision in Almendarez-Torres v. U.S. (1998) 523 U.S. 224 and Apprendi v. New Jersey (2000) 530 U.S. 466. In Almendarez-Torres, the Court held that a prior conviction could be treated solely as a sentencing factor and thus need not be pled and proved to the jury as an element of the offense. (Almendarez-Torres v. U.S., supra, 523 U.S. at pp. 239-247.) In Apprendi, the Court clarified that a prior conviction was the only aggravating sentencing factor which did not need to be pled and proved to a jury. (Apprendi v. New Jersey, supra, 530 U.S. at p. 490.)
Appellant contends that Almendarez-Torres and Apprendi, particularly when read with Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856], require that the prior conviction exception be read narrowly and limited to the fact of the conviction. Appellant acknowledges that the California Supreme Court has held that the prior conviction exception of Apprendi, Blakely and Cunningham should be read broadly to include other recidivist factors, such as whether the prior convictions are numerous or increasingly serious. (People v. Black (2007) 41 Cal.4th 799, 818-820.) We have previously found that the fact that the defendant served a prior prison term falls within Apprendi/Almendarez-Torres exception to the jury trial requirement. (People v. Thomas (2001) 91 Cal.App.4th 212, 220-223.) We see nothing in Blakely, Cunningham or Black which would alter our conclusion in Thomas.
2. Adequacy of stipulation
Appellant contends that his admission of a prior-theft related conviction was not adequate for purposes of section 666. He contends that he admitted only the fact of the conviction and not the subsequent incarceration.
On December 8, 2005, in case No. VA087729, appellant pled guilty to a violation of section 496. He was sentenced to three years in prison, but execution of the sentence was suspended and appellant was placed on formal probation for five years. As a condition of probation, appellant was ordered to serve 315 days in county jail, a condition which was satisfied by time already served in the case. Sentence was imposed by Commissioner Michael Schuur, serving as a temporary judge.
Appellant was arrested for the present offense on April 14, 2006. His conviction in case No. VA087729 was alleged as a prior theft related conviction for purposes of the current section 666 charge. The trial of this case served as a probation revocation hearing as to case No. VA087729. Commissioner Michael Schuur, serving as a temporary judge, conducted both the trial of this matter and the probation revocation hearing.
Prior to trial, the trial court stated: "In this case, [appellant] is charged with petty theft with a prior. [¶] Did he want to admit the prior or not?" Appellant's attorney replied: "He wants to admit the prior, Your Honor." The court stated: "Okay. [¶] So, Mr. Early, what your attorney is advising you to do, if you admit the prior I don't actually instruct them that you have been convicted of a prior theft related offense. [¶] So, do you admit that you were convicted of receiving stolen property on December 8, 2005, in case No. VA087729 in the Los Angeles Superior Court; do you admit that that's true?" Appellant replied: "Yes, sir." The court concluded: "Okay. Then it will be read to the jury as one count of theft."
We think that the only reasonable understanding of appellant's admission is that he intended to and did admit all the facts necessary to keep the jury from learning of his prior conviction. Those facts would include the time he served in jail.
Assuming for the sake of argument that appellant's admission did not include his jail time, we would find the error harmless. The trial of this matter was also a probation revocation hearing for case No. VA087729. The judge in this matter was the same judge who sentenced appellant in that earlier case. The minute orders from that case, including the minute order showing the condition of jail time and the satisfaction of that time, are in the record before us on appeal and thus should have been part of the record before the trial court. Thus, we find beyond a reasonable doubt that appellant's service of jail time was uncontested and supported by overwhelming evidence. (See Neder v. U.S. (1999) 527 U.S. 1, 17 [finding erroneous instruction omitting element of the offense harmless "where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence"].)
Disposition
The judgment is affirmed.
We concur TURNER, P. J. KRIEGLER, J.