Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. FVI025951 Eric M. Nakata, Judge.
Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Michael T. Murphy, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P. J.
A jury found defendant and appellant Daniel Anthony Henson, Sr., guilty of vandalism causing more than $400 in damage under Penal Code section 594, subdivision (b)(1). Thereafter, defendant admitted the truth of allegations that he had previously suffered two prison priors under section 667.5, subdivision (b). The trial court sentenced defendant to serve the middle term of two years in prison for the vandalism conviction, plus two consecutive one-year terms for each of the prison priors, for a total prison term of four years.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that (1) the evidence was insufficient to support the trial court’s true finding that defendant suffered prison priors or, in the alternative, (2) defendant’s admission of the prison priors was not voluntary or intelligent. For the reasons set forth below, we shall affirm the judgment.
I
FACTUAL SUMMARY
On December 4, 2006, defendant caused several thousand dollars worth of damage to a house in Apple Valley because he believed that the owner owed him money.
II
ANALYSIS
A. Defendant’s Insufficient Evidence Argument Is Improper
Defendant contends that there was insufficient evidence to support the trial court’s true finding that defendant had suffered two prison priors under section 667.5, subdivision (b). Defendant’s argument, however, is groundless because there was no trial on the prison prior allegations; defendant waived his right to a trial and admitted the truth of those allegations.
After the jurors started deliberating on the vandalism charge, the trial court turned its attention to the prior conviction allegations and alleged circumstances in aggravation. The following colloquy followed:
“THE COURT: The record will reflect that we’re outside the presence of the jury. Present are both counsel and [defendant].
“Do you want to talk to [defendant] about the admissions?
“[DEFENSE COUNSEL]: Yes, your Honor. I think I did and I believe that he’s willing to just waive jury and admit the priors and I guess the Cunningham also.
Cunningham v. California (2007) 549 U.S. 270.
“THE COURT: Okay. Then let’s go ahead and do that then before we have the jury.
“[Defendant], do you understand that you have the right to have the jury—and only if the jury convicts you, okay. I mean, there certainly is the possibility that they can return a verdict of not guilty. So these admissions would mean nothing if they come back and find you not guilty.
“Do you admit, then, that you have previously been convicted and sentenced to prison, served prison time, for a violation of [section] 496, receiving stolen property, on or about November 5th, 2003 out of Riverside County in RIF10833?
“THE DEFENDANT: Yes.
“THE COURT: Do you also admit that you previously have been convicted of a felony offense and sentenced to state prison for a violation of [s]ection 453 [subdivision] (a) on or about May 4, 1994 out of Riverside County in case number CR53925.
“THE DEFENDANT: I believe—is that the GTA?
“[DEFENSE COUNSEL]: No. The first one was. This one was
“THE DEFENDANT: Yes.
“THE COURT: Okay. And do you admit—do you understand that you also have a right to have the jury decide whether or not the following aggravating circumstances are true or not true . . . ?”
As provided above, the record clearly reveals that defendant admitted to the prison priors. Therefore, defendant’s claim of insufficient evidence is improper.
B. Defendant’s Admission Was Knowing and Voluntary
Alternatively, defendant contends that “the record fails to demonstrate [defendant’s] voluntary and intelligent admission of his 1994 prior conviction.”
A criminal defendant who pleads guilty thereby waives three constitutional rights: (1) the privilege against self-incrimination, (2) the right to a jury trial, and (3) the right to confront one’s accusers. For a waiver of these fundamental constitutional rights to be valid, it must be knowing, intelligent, and voluntary. Such a waiver may not be presumed from a silent record; rather, the record must affirmatively disclose that a defendant who pleaded guilty did so knowingly and voluntarily. (Boykin v. Alabama (1969) 395 U.S. 238, 243 (Boykin).) In California, the same rule applies to the acceptance of an admission of the truth of an alleged prior conviction or prior prison term. (In re Yurko (1974) 10 Cal.3d 857, 863 (Yurko).)
The California Supreme Court has held that the trial court must advise a defendant, on the record, of his or her rights regarding self-incrimination, jury trial, and confrontation, and the defendant must waive these rights, on the record, before the trial court may accept a guilty plea. (In re Tahl (1969) 1 Cal.3d 122, 132-133 (Tahl).) It has since made it clear, however, that the requirement of such advisals is a matter of its own supervisory powers and not a matter of federal constitutional law. (People v. Howard (1992) 1 Cal.4th 1132, 1175 (Howard).) Accordingly, even when a trial court fails to give the required advisals, a guilty plea “is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances. [Citations.]” (Ibid.)
As the Supreme Court more recently explained, “After our Howard decision, an appellate court must go beyond the courtroom colloquy to assess a claim of Yurko error. [Citation.] Now, 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 prior conviction was intelligent and voluntary in light of the totality of circumstances.” (People v. Mosby (2004) 33 Cal.4th 353, 361 (Mosby), citing People v. Allen (1999) 21 Cal.4th 424, 438; accord, United States v. Vonn (2002) 535 U.S. 55, 76.)
Hence, a defendant who admits a prior conviction without expressly waiving his or her rights to remain silent and confront adverse witnesses may nevertheless be found to have made a voluntary and intelligent waiver of those rights so long as “the totality of circumstances surrounding the admission supports such a conclusion.” (Mosby, supra, 33 Cal.4th at p. 356; see also Howard, supra, 1 Cal.4th at p. 1178.)
In People v. Howard (1994) 25 Cal.App.4th 1660, People v. Van Buren (2001) 93 Cal.App.4th 875, People v. Campbell (1999) 76 Cal.App.4th 305, and People v. Carroll (1996) 47 Cal.App.4th 892, cases discussed by Mosby, the defendants admitted prior convictions after a jury trial on the substantive charges. Mosby separated these cases into two categories: (1) truly silent record cases, those in which the record showed “no express advisement or waiver of the Boykin-Tahl rights before a defendant’s admission of a prior conviction” (Mosby, supra, 33 Cal.4th at p. 361); and (2) incomplete Boykin-Tahl advisement cases, those in which defendants had been advised of their right to a jury trial, but not of the other two constitutional rights. (Mosby, at pp. 362-364.)
With regard to the truly silent record cases (e.g., People v. Stills (1994) 29 Cal.App.4th 1766; People v. Campbell, supra, 76 Cal.App.4th 305; People v. Moore (1992) 8 Cal.App.4th 411; People v. Johnson (1993) 15 Cal.App.4th 169 [nearly silent]), Mosby concluded the appellate courts were correct in holding that the defendant’s admissions were not voluntary and knowing: “In all of the [silent record] cases . . . a jury trial on a substantive offense preceded the defendants’ admissions of prior convictions. These defendants were not told on the record of their right to trial to determine the truth of a prior conviction allegation. Nor did they expressly waive their right to trial. In such cases, in which the defendant was not advised of the right to have a trial on an alleged prior conviction, [it] cannot [be inferred] 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.” (Mosby, supra, 33 Cal.4th at p. 362.)
In the incomplete advisement cases (People v. Carroll, supra, 47 Cal.App.4th 892; People v. Howard, supra, 25 Cal.App.4th 1660; People v. Torres (1996) 43 Cal.App.4th 1073; People v. Garcia (1996) 45 Cal.App.4th 1242), the defendants had participated in jury trials and thereafter admitted priors. Their admissions were made after they were advised of the right to a jury trial, but not of the rights to confront witnesses or against self-incrimination. The Courts of Appeal held that the totality of circumstances in those cases did not show the admissions were voluntary and intelligent, and the incomplete advisements required reversal. Mosby disapproved these incomplete advisement cases, as well as People v. Van Buren, supra, 93 Cal.App.4th 875. (Mosby, supra, 33 Cal.4th at p. 365, fn. 3.)
In Mosby, “immediately after the jury found defendant guilty of selling cocaine, defendant was told he had a right to a jury trial on the prior conviction allegation.” (Mosby, supra, 33 Cal.4th at p. 364.) The defendant thereafter admitted the prior convictions. (Id. at pp. 357-359.) Mosby reasoned that “unlike a trial on a criminal charge, trial on a prior conviction is ‘simple and straightforward,’ often involving only a presentation by the prosecution ‘of a certified copy of the prior conviction along with the defendant’s photograph [or] fingerprints’ and no defense evidence at all. [Citation.] [In Mosby], [the] defendant, who was represented by counsel, had just undergone a jury trial at which he did not testify, although his codefendant did. Thus, he not only would have known of, but had just exercised, his right to remain silent at trial, forcing the prosecution to prove he had sold cocaine. And, because he had, through counsel, confronted witnesses at that immediately concluded trial, he would have understood that at a trial he had the right of confrontation.” (Id. at p. 364.) In addition, the Mosby court pointed out that “‘a defendant’s prior experience with the criminal justice system’ is . . . ‘relevant to the question [of] whether he knowingly waived constitutional rights.’” (Id. at p. 365, quoting Parke v. Raley (1992) 506 U.S. 20, 37; see also United States v. Dawson (9th Cir. 1999) 193 F.3d 1107, 1110-1111.)
Mosby disapproved language in People v. Garcia, supra, 45 Cal.App.4th at page 1248, “[t]o the extent [it] suggests that the sophistication of the crime itself, apart from a defendant’s actual knowledge or capacity to understand the constitutional rights in question, is relevant to a defendant’s intelligent waiver of rights . . . .” (Mosby, supra, 33 Cal.4th at p. 365, fn. 2.)
Under the totality of circumstances, Mosby concluded that the “defendant voluntarily and intelligently admitted his prior conviction despite being advised of and having waived only his right to jury trial.” (Mosby, supra, 33 Cal.4th at p. 365.) “‘[H]e knew he did not have to admit [the prior conviction] but could have had a jury or court trial, had just participated in a jury trial where he had confronted witnesses and remained silent, and had experience in pleading guilty in the past, namely, the very conviction that he was now admitting.’” (Ibid.)
In this case, the trial court—as detailed above—advised defendant that he had the right to have the jury determine his prison priors. Defendant, thereafter, admitted his prison priors. Because of the advisement given by the court, defendant’s reliance on the silent record cases—People v. Moore, supra, 8 Cal.App.4th 411 and People v. Johnson, supra, 15 Cal.App.4th 169—is misplaced.
Instead, we must analyze this case as an incomplete advisement case under Mosby, supra, 33 Cal.4th 353. Here, defendant admitted his prison priors after completion of the trial on his substantive charge, vandalism, just as the jurors began deliberations. Therefore, as in Mosby, defendant had just completed a contested jury trial at which he exercised his right not to testify and observed the confrontation of witnesses against him. Moreover, at his arraignment, defendant signed an “Advisement of Legal Rights” form. The form specifically stated that defendant understood that he had the following legal rights: (1) right to counsel; (2) jury trial; (3) confrontation and cross-examination of witnesses; (4) privilege against self-incrimination; and (5) defense witnesses. Additionally, defendant had a lengthy criminal history dating back to 1987. Defendant had been convicted of several offenses and spent time in both jail and prison. Furthermore, the record clearly shows that defendant understood what was transpiring during the hearing. After admitting his prison priors, the trial court addressed whether defendant wished to admit certain circumstances in aggravation that had been alleged.
“THE COURT: Okay. And do you admit—do you understand that you also have a right to have the jury decide whether or not the following aggravating circumstances are true or not true:
“1. That the defendant was on probation or parole when the crime was committed? Do you admit that?
“THE DEFENDANT: When these
“THE COURT: When this offense was committed.
“THE DEFENDANT: No, I discharged.
“[¶] . . . [¶]
“THE DEFENDANT: I’m discharged on both numbers.”
Therefore, the record clearly reveals that defendant paid attention to the court’s questions and responded knowingly and intelligently.
In sum, a defendant who sees in action the very rights in question in the context of the trial of the underlying charge cannot reasonably fail to understand that the absence of a trial means those rights are forfeited. Under the totality of the circumstances, we find that defendant voluntarily and intelligently admitted his prior prison term allegations.
III
DISPOSITION
The judgment is affirmed.
We concur: KING, J., MILLER, J.