Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Leslie Brown, Judge, Los Angeles County Super. Ct. No. GA061447
James Koester, 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, Robert F. Katz and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
Defendant and appellant Darryl B. Jefferson was convicted of mayhem (Pen. Code, § 203) after biting off the top portion of Allison Artiaga’s left ear during a fight initiated by defendant. Defendant waived trial on the prior conviction and prior prison term allegations. He admitted suffering a prior serious felony conviction for robbery in case No. BA186555 (§ 667, subd. (a)), which also qualified as a prior conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i) and 1170.12, subds. (a)-(d)). Defendant also admitted prior prison term allegations for the robbery and a section 666 conviction in case No. GA044009 within the meaning of section 667.5, subdivision (b). Defendant was sentenced to state prison for 15 years, calculated as the midterm of four years for mayhem, doubled under the three strikes law, plus a five-year enhancement for the prior serious felony and two additional years for the prior prison terms.
Defendant’s name in the amended information is Darryl B. Jefferson. The record reflects that defendant changed the first name to Kittiy in 2004. Appellate counsel uses the masculine pronoun to refer to defendant in the appellate briefs. With no disrespect intended, we use the masculine pronoun to be consistent with appellate counsel’s usage.
All statutory references are to the Penal Code, unless otherwise indicated.
The jury acquitted defendant of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)) in a separate count.
In this timely appeal, defendant contends (1) his admissions were not voluntary and intelligent because the trial court failed to properly advise defendant prior to taking the admissions, (2) it was improper to impose the five-year enhancement under section 667, subdivision (a)(1) and the one-year enhancement under section 667.5, subdivision (b) for the robbery conviction in case No. BA186555, and (3) it was improper to enhance the sentence under section 667.5, subdivision (b) for the conviction in case No. GA044009 because defendant did not admit that he served a separate prison term.
We hold defendant’s admissions were voluntary and intelligent. As conceded by the Attorney General, it was not proper to enhance the sentence for five years under section 667, subdivision (a)(1) and one year under section 667.5, subdivision (b), since both enhancements arose from a single conviction. The finding that defendant served a prior prison term in case No. GA044009 must be reversed as defendant never admitted to serving a separate prior prison term. Accordingly, we affirm the admissions as voluntary and intelligent, but the two years imposed for the two prior prison terms must be vacated.
The manner in which admissions to the enhancements were taken by the trial court and the prosecution in this case is unacceptable. Both entities failed to comply with settled principles of law in connection with the resolution of the alleged enhancements.
DISCUSSION
I. Defendant’s Admissions of His Prior Convictions Were Voluntary and Intelligent
Defendant contends the true findings on the prior conviction allegations, based on his admissions, must be vacated. Defendant argues his admissions were not voluntary and intelligent because the trial court failed to properly advise him of his privilege against self-incrimination, his right to confront and cross-examine witnesses, and the prosecution’s duty to prove the truth of the allegations beyond a reasonable doubt. Defendant also argues the trial court failed to advise him of the consequences of admitting the prior convictions. We conclude the totality of the circumstances demonstrate the admissions were voluntary and intelligent, and any error in failing to advise of the penal consequences of an admission was waived.
A. Law On Admissions
Before the trial court may accept an admission of the truth of a prior conviction for sentencing purposes, a defendant must be advised of the right to a jury trial, the right to confront and cross-examine witnesses, and the privilege against self-incrimination. (People v. Mosby (2004) 33 Cal.4th 353, 359-360; In re Yurko (1974) 10 Cal.3d 857, 863.) The appropriate test for determining the validity of an admission of a prior conviction is whether the totality of circumstances in the record demonstrates the defendant’s admission was voluntary and intelligent. (People v. Mosby, supra, 33 Cal.4th at pp. 360-361; People v. Howard (1992) 1 Cal.4th 1132, 1175.) “When, immediately after a jury verdict of guilty, a defendant admits a prior conviction after being advised of and waiving only the right to trial, . . . that admission [can] be voluntary and intelligent even though the defendant was not told of, and thus did not expressly waive, the concomitant rights to remain silent and to confront adverse witnesses . . . if the totality of circumstances surrounding the admission supports such a conclusion.” (People v. Mosby, supra, 33 Cal.4th at p. 356.) Where the record contains no express advisement of the right to a jury trial, “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.” (Id. at p. 362.)
A defendant must also be advised of the penal consequences of admitting a prior conviction. (In re Yurko, supra, 10 Cal.3d at p. 864.) If prejudice appears from an omission to so advise, the true finding must be set aside. (Ibid; accord, People v. Walker (1991) 54 Cal.3d 1013, 1023 [prejudice is shown if it is reasonably probable defendant would not have admitted the prior had he been advised of the consequences].) Failure to object in the trial court to the omission of this advisement results in a waiver of the objection if the record reflects the defendant was aware of the increased sentence that might be imposed. (People v. Wrice (1995) 38 Cal.App.4th 767, 770-771.)
B. Proceedings
On the day of trial, defense counsel told the trial court that defendant wanted counsel to file a motion to dismiss defendant’s prior conviction under the three strikes law pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Defense counsel had explained to defendant that a Romero motion is not made until after conviction or plea, and the trial court would probably not prematurely dismiss defendant’s “strike prior.” Defendant then requested and was granted a hearing under People v. Marsden (1970) 2 Cal.3d 118. At the Marsden hearing, defendant indicated he knew his sentence for a conviction of mayhem might be doubled because his robbery conviction was a strike prior and increased by five years as a serious felony, and by one year for each of his prior prison terms. Counsel explained to defendant how many years the priors would add to defendant’s sentence to help defendant understand how the prosecutor arrived at a nine-year plea bargain offer. Ultimately, defendant withdrew his motion to relieve counsel. Nothing in the transcript of the Marsden hearing indicates the five-year prior did not apply to the mayhem charge.
We advised the parties of our intent to release the transcript of the Marsden hearing to the Attorney General because it appeared the transcript reflected defendant’s awareness of the penal consequences of his prior convictions. We invited the parties to submit letter briefs. Defendant did not oppose release of the transcript to the Attorney General, we ordered the transcript released, and we have considered the transcript.
The trial court granted defendant’s request to bifurcate the issue of his prior convictions. Before the jury returned with the verdict, the trial court directed the prosecutor to take defendant’s jury waiver. The prosecutor stated: “In this case, it’s been alleged that you suffered a prior prison conviction pursuant to 667(a)(1) and 1170.12(a) through (d). The particular allegation is that you previously were convicted of Penal Code section 211, in case BA186555 and that you were sentenced to prison as a result of that plea. [¶] Sir, you do have a right to have a jury hear the evidence of that prior and the People have the burden to prove it beyond a reasonable doubt. [¶] Do you want to waive and give up your right to have a jury, this jury, hear that evidence and instead have the People prove it to the court?” Defendant answered in the affirmative and counsel joined.
Immediately after the jury returned with the verdict, defendant entered his admissions. The prosecutor advised defendant that “it’s alleged . . . that in case BA186555, you were convicted on July 22, 1999 of violating Penal Code section 211, in the L. A. County Central Superior Court of the State of California. To that allegation, do you admit or deny? [¶] [Defendant]: Admit. [¶] [Prosecutor]: And also, in case GA044009 on October 5th, 2000, you were convicted of violating Penal Code section 666 in the Los Angeles County Pasadena Court, of the California Superior Court. To that allegation, do you admit or do you deny? [¶] [Defendant]: I admit.” The trial court then stated to defendant, “I should explain to you, Mr. Jefferson, that prior to the admission, we’ll do it this way anyway, that you had a right to have a trial on this and you understand that right and you’re giving up that right at this time and admitting freely the prior convictions that were just read to you; is that correct? [¶] [Defendant]: Yes. [¶] [The Court]: Counsel joins in that waiver? [¶] [Counsel]: Yes. [¶] . . . [¶] [The Court]: All right. Okay. Then the court will accept the admissions; find the defendant has freely, knowingly, voluntarily and intelligently waived his rights to a hearing and freely admits the two prior convictions.” No admission was made by defendant to the elements of the enhancements under section 667.5, subdivision (b). At the time of taking defendant’s waivers and admissions, neither the trial court nor the prosecutor enumerated defendant’s trial rights or the penal consequences of the admissions. Defendant did not object to these omissions.
The trial court sentenced defendant to 15 years in state prison. The sentence included one-year enhancements under section 667.5, subdivision (b) for the prior prison term allegations stemming from case Nos. BA186555 and GA044009. Defense counsel advised the trial court that defendant was “indicating that he has been sentenced actually to prison previously, just one commitment. Although it may have been two cases.” After conferring with the prosecutor, defense counsel stated “it appears that there were two separate commitments very close in time.”
The Admissions Are Valid
Before defendant’s waivers and admissions, he was advised of his right to a jury trial regarding the prior robbery conviction and the allegation that he served a term in state prison in case No. BA186555. Defendant was also informed that the prosecution had the burden of proving these allegations beyond a reasonable doubt. Defendant had just completed a jury trial at which he exercised his right to confront and cross-examine witnesses and his right not to testify. The prosecution was required to prove guilt of the of the mayhem charge beyond a reasonable doubt. While the trial court did not enumerate all the rights defendant would surrender by waiving trial and admitting the prior conviction allegations, or enumerate the penal consequences of true findings, the record indisputably demonstrates defendant was aware of those rights and understood how the priors would enhance his sentence. Defendant had exercised his rights in the trial that just concluded. He had been advised of his right to a jury trial on the robbery prior conviction allegation, as well as being informed of the prosecution’s duty to prove the allegations beyond a reasonable doubt. On this record, we hold defendant was aware these rights applied to the adjudication of the prior conviction allegations, and under the totality of the circumstances, defendant’s admissions of the prior conviction allegations were voluntary and intelligent.
Furthermore, the record of defendant’s request to counsel to file a motion under Romero and his statements at the Marsden hearing shows defendant was aware of the penal consequences of admitting the prior convictions allegations. Under these circumstances, any failure to advise defendant of the consequences of his admissions did not render the admissions invalid. (People v. Wrice, supra, 38 Cal.App.4th at pp. 770-771.)
Moreover, the failure to advise of the penal consequences of an admission is subject to the California standard of harmless error. There is nothing in the record to suggest defendant would not have made the admissions had he been explicitly advised of the penal consequences. Error, if any, was harmless. (Cal. Const., art. VI, § 13; People v. Walker, supra, 54 Cal.3d at p. 1023.)
II. It Was Improper to Enhance the Sentence Pursuant to Both Section 667, subdivision (a)(1) and Section 667.5, subdivision (b) For the Same Prior Conviction
Defendant contends the one-year enhancement of his sentence for a prior prison term pursuant to section 667.5, subdivision (b) based on his robbery conviction in case No. BA186555 must be stricken because that conviction was also the basis for a five-year enhancement imposed pursuant to section 667, subdivision (a)(1). Respondent concedes the point, and we agree. (People v. Jones (1993) 5 Cal.4th 1142, 1150, 1152-1153 [“when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply”].) This one-year enhancement in case No. BA186555 must be stricken.
III. It Was Improper To Enhance The Sentence Under Section 667.5, subdivision (b) For The Prior Conviction in GA044009
Defendant contends the one-year enhancement under section 667.5, subdivision (b) for the prior conviction in case No. GA044009 should be vacated because defendant did not admit he served a separate prison term when he admitted the fact of the conviction and there was no proof of that element. We agree with the contention.
“Imposition of a sentence enhancement under . . . section 667.5 requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction.” (People v. Tenner (1993) 6 Cal.4th 559, 563.) The prosecution must prove each element of the enhancement beyond a reasonable doubt. (Id. at p. 566.) “The additional penalties provided for prior prison terms shall not be imposed unless they are charged and admitted or found true in the action for the new offense.” (§ 667.5, subd. (d).) “The additional penalties provided for prior prison terms shall not be imposed for any felony for which the defendant did not serve a prior separate term in state prison.” (§ 667.5, subd. (e).) “The distinction between a prior felony conviction and a separate prison term served for such felony is obvious. A prior felony conviction could well have resulted in something less than confinement in the state prison, in which event no enhancement would be called for under section 667.5, subdivision (b).” (People v. Gaines (1980) 112 Cal.App.3d 508, 516.)
Similar to the facts in People v. Lopez (1985) 163 Cal.App.3d 946, defendant admitted he suffered the prior conviction in GA044009, but “he was not asked to and did not admit that he served a separate prison term for [the] prior conviction[], and no evidence was introduced to so establish. . . . Moreover, unlike the situation in People v. Franco (1970) 4 Cal.App.3d 535, 539-540[, ] where the defendant was advised [immediately prior to and in the context of] admitting the prior conviction that the information charged him both with having suffered a prior conviction and with having served a prior term of incarceration therefor, here the record does not indicate that[, in taking the admission, ] the [amended information] was read to defendant, that he waived a reading thereof, or that he was ever advised that by admitting the validity of the prior convictions he would also be admitting that he served separate prison terms therefor. Thus, his admission that [he sustained] the prior convictions [] cannot be construed as an admission of the allegations that he served prior, separate prison terms for each of those convictions.” (People v. Lopez, supra, 163 Cal.App.3d at p. 951.)
People v. Welge (1980) 101 Cal.App.3d 616 (Welge), cited by respondent, is distinguishable. In Welge, the court stated that in admitting the prior conviction the defendant admitted he served a separate prison term. (Id. at p. 623.) However, the defendant did not simply admit the fact he suffered the prior conviction. He admitted the prior conviction “as charged in the amended complaint.” (Id. at p. 619.) The amended complaint specifically alleged the defendant served a separate prison term for the prior conviction. (Id. at p. 623.) In that circumstance, it is fair to assume the admission included an admission he served a separate prison term. Such an assumption is not warranted in the present case, because defendant not asked to admit the prior allegation as alleged in the amended information, and at the sentencing hearing he questioned whether he had received two prison commitments for the two prior felony convictions or only one.
As the record contains neither proof nor defendant’s admission of the prior prison term elements of this section 667.5, subdivision (b) allegation, the prosecution did not carry its burden of proving the allegation beyond a reasonable doubt. Accordingly, the finding as to the prior prison term allegation stemming from case No. GA0440009 must be reversed and the one-year enhancement must be vacated. On remand, the People may retry the allegation. (People v. Barragan (2004) 32 Cal.4th 236, 239.)
DISPOSITION
The one-year enhancement imposed pursuant to section 667.5, subdivision (b) based on defendant’s prior conviction in case No. BA186555 is reversed. The finding that defendant served a prior prison term pursuant to section 667.5, subdivision (b) in case No. GA044009 is reversed and remanded for further proceedings on the allegation. In all other respects, the judgment is affirmed.
We concur: TURNER, P. J., MOSK, J.