Opinion
NOT TO BE PUBLISHED
Monterey County, Super. Ct. No. SS050563.
McAdams, J.
Following denial of defendant’s renewed motion to suppress evidence pursuant to Penal Code section 1538.5, defendant submitted his case to the court for decision on the basis of the preliminary hearing transcript and a laboratory report and was convicted by the court of felony possession of methamphetamine (Health & Safety § 11377, subd. (a)) in exchange for probation and a “Proposition 36” referral. (Pen. Code § 1210.) On appeal, defendant argues that he was illegally detained and searched, that counsel was ineffective for failing to argue that his detention was unduly prolonged, and that he was not properly advised prior to entering a “slow plea” and did not waive his right to a jury trial. (Bunnell v. Superior Court (1975) 13 Cal.3d 592 (Bunnell).) We affirm.
Initiative measure Proposition 36 was codified as Penal Code section 1210, effective July 1, 2001 (Proposition 36).
The facts are drawn from the preliminary hearing transcript, on which the motion to suppress was based.
On January 8, 2005, at approximately 5:30 p.m. Deputies Owen and Thornburg of the Monterey County Sheriff’s Department were traveling in their patrol car behind a blue Chevy Monte Carlo when Deputy Owen noticed that, unlike the driver, the passenger did not appear to be wearing the shoulder harness part of his safety belt. Deputy Owen “effect[ed] a traffic stop” and made contact with defendant, who was the passenger. It turned out that defendant was wearing his seat belt, but with the shoulder harness tucked underneath his armpit. Owen also made contact with the driver, who had a warrant for his arrest. After the driver was taken into custody, Deputy Thornburg had defendant step out of the vehicle. Owen did not hear what Thornburg said to defendant and he was not involved in the search of defendant’s person.
Thornburg told Owen that he found a “twisty baggie” on defendant and asked Owen to find out what was in it. Owen performed a presumptive test on the contents and weighed them. The substance in the baggie tested positive for methamphetamine and, along with the baggie, weighed .3 grams. There was enough of the substance that it could be inhaled through a straw. After his arrest, defendant told the deputies he used methamphetamine because he had been working late.
Deputy Thornburg made contact with defendant during the traffic stop, after the driver had been arrested. Either Thornburg or Owen asked defendant for identification. He had none, but gave his name. Deputy Owen ran his name, and found no warrants.
Thornburg “asked [defendant] to step out of the vehicle.” He did not specifically recall what words he used, but he testified: “I don’t tell passengers to get out of the car, I ask them.” Defendant stepped out without any problems that Thornburg remembered. After defendant stepped out of the car, Thornburg “[a]sked him if he had any illegal items on him, weapons, drugs” and “[h]e said no.” Thornburg then asked defendant for permission to search his person and defendant gave it. Thornburg did not recall the exact words he used, or exactly what defendant said, “[o]nly that he granted me permission.” Thornburg searched defendant’s pockets and located methamphetamine in defendant’s coin pocket on the front right side of his pants. He handed it to Deputy Owen.
Deputy Thornburg did not independently recall whether he or Deputy Owens initially asked defendant to step out of the car, but based on his and Deputy Owens’s report, he believed he was the one who did so. He knew he received defendant’s consent to search his person and found methamphetamine on him, because that was documented in his report.
Both deputies were in uniform, wearing a gun, a baton and handcuffs attached to their belts. Thornburg also had a taser.
Defendant testified in his own behalf, essentially corroborating the officers’ testimony. Defendant and a friend were in a car that was stopped by a sheriff’s car that “came out of nowhere.” When he and his friend asked what the problem was, they were told “something about my seat belt.” Defendant told them: “Well, I got it on. I was … smoking a cigarette. The seat belt comes from up on the roof, the old style cars, comes from the roof of the car and it was right in the path of where my cigarette [was], … so I just put it under my arm.” The officers asked him for identification. Defendant told them he didn’t have his identification with him, but gave them his name. Then nothing happened. Defendant guessed the officers ran his friend’s name because after they came back, they told defendant’s friend he had a warrant and they arrested him.
Next, the officer “asked [defendant] to step out of the car.” The officer’s precise words, more or less, were, “Can you step out of the car, please?” Defendant replied, “[Y]eah, for what? What did I do wrong? I was wearing my seat belt.” The officer then said, “[j]ust step out of the car.” Defendant did. The officer then asked: “Can you turn around so I can search … you?” He had already asked defendant “if I had anything on me or anything like that, and I said no, I don’t.” The officer said, “Just turn around, put your hands on the vehicle.” Defendant testified: “I wanted to say no, but I figured if I said no it’s just going to make more of a problem, so I just complied with what he asked me to do or what he told me to do.” He didn’t think he could say no “[b]ecause every time we said no before, it turns out I’ve ended up in jail.” The officer patted him down first and then started going through his pockets. He asked defendant to take everything out of his pockets, saying: “[C]an you take everything out of your pockets and put it on the back of the car, the trunk of the car?” Defendant didn’t respond verbally; he just did it. After he emptied his pockets, he put has hands back on the vehicle in the same position as before. The officer searched again and found the methamphetamine.
Later in his testimony defendant stated: “He just told me to step out of the vehicle.”
DISCUSSION
I. Denial of the Motion to Suppress Evidence (Pen. Code § 1538.5)
Standard of Review
In reviewing a motion to suppress evidence, we defer to the trial court’s express or implied factual findings where they are supported by substantial evidence. We exercise independent judgment on questions of law, including whether the challenged police action was constitutional. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Analysis
Defendant does not challenge the legality of the traffic stop of the vehicle in which he was riding for a Vehicle Code violation. (People v. McGaughran (1979) 25 Cal.3d 577, 582.) Nor does he challenge the officer’s request, or order, that he alight from the vehicle pursuant to that stop. (Maryland v. Wilson (1997) 519 U.S. 408, 419.) He argues that his detention, the pat search and the search of his pockets were all illegal because (1) since he “was in fact wearing a seatbelt, ” the officer had no reason to suspect him of involvement in criminal activity; (2) the officer had no reason to think he was armed; and (3) his apparent consent to the searches was involuntary because it was given in response to the officers’ show of authority. He also argues that his consent to the searches was involuntary because it was the product of an illegal detention; that trial counsel was ineffective for failing to argue that defendant’s detention was unduly prolonged; and that Deputy Thornburg was not credible because he could not remember what he said or what defendant said. Defendant’s major and minor premises may be summed up as follows: (1) since he “was in fact wearing a seatbelt”, defendant was not in violation of the law; (2) therefore, “once he exited the vehicle, [he] should have been free to leave ‘forthwith.’ ”
Because neither defendant nor respondent cited or discussed the applicability of Atwater v. City of Lago Vista (2001) 532 U.S. 318 (Atwater) or People v. McKay (2002) 27 Cal.4th 601(McKay) to the legality of defendant’s detention, arrest and search, we asked the parties for additional briefing.
For the following reasons, we now conclude that Atwater and McKay are dispositive of defendant’s claims.
Mandatory Safety Belt Law
The car in which defendant was riding was stopped for violations of Vehicle Code section 27315. The driver was in violation of the law for allowing his passenger, defendant, to ride in his car without a proper shoulder restraint. Defendant was also in violation of the law for riding in the car without a proper shoulder restraint. “California law makes it illegal to drive a car unless ‘properly restrained by a safety belt’ ” and a peace officer has probable cause to arrest a person for a violation of the statute upon observing that the person is “wearing his seatbelt under his … arm and not across his upper torso. It is not unconstitutional to arrest a driver for failing to wear a seatbelt.” (Hupp v. City of Walnut Creek (2005) 389 F.Supp.2d 1229, 1232 (Hupp), italics added, citing Atwater, supra, 532 U.S. 318.)
Vehicle Code section 27315 provides, in relevant part: “(d)(1) A person may not operate a motor vehicle on a highway unless that person and all passengers 16 years of age or over are properly restrained by a safety belt. … [¶] . . . [¶] (e) A person 16 years of age or over may not be a passenger in a motor vehicle on a highway unless that person is properly restrained by a safety belt. … [¶] . . . [¶] (h) Notwithstanding subdivision (a) of Section 42001, any violation of subdivision (d), (e), or (f) is an infraction punishable by a fine of not more than twenty dollars ($20) for a first offense, and a fine of not more than fifty dollars ($50) for each subsequent offense. In lieu of the fine and any penalty assessment or court costs, the court, pursuant to Section 42005, may order that a person convicted of a first offense attend a school for traffic violators or any other court-approved program in which the proper use of safety belts is demonstrated.” (Italics added.)
In Atwater, a police officer stopped the defendant’s car because neither she nor her children were wearing seat belts, in violation of Texas’ seat belt law, a misdemeanor punishable only by a small fine. (Atwater, supra, 532 U.S. at p. 323.) The police officer arrested the defendant instead of citing her because she did not have her driver’s license or her insurance documentation. (Id. at p. 324.) She was taken to the police station, booked and jailed for an hour, after which she was taken before a magistrate and released on bond. She ultimately pleaded guilty to the seat belt law violations and paid a $50 fine. (Ibid.) She then brought suit against the municipality and the chief of police under section 1983 of Title 42 of the United States Code for a violation of her Fourth Amendment rights. (Id. at p. 325.) The U.S. Supreme Court granted certiorari on the constitutional question and held that “[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” (Id. at p. 354.)
Subsequently, in People v. McKay, supra, 27 Cal.4th 601, the California Supreme Court considered a similar issue in light of Atwater. In McKay, a peace officer saw the defendant riding a bicycle the wrong way on a residential street, an infraction in violation of Vehicle Code section 21650.1. (McKay, at p. 606.) He stopped defendant intending to write defendant a citation, and asked defendant for identification. Defendant had no identification with him but gave his name and date of birth. The officer arrested defendant pursuant to Vehicle Code section 40302(a), “based on his failure ‘to present his driver’s license or other satisfactory evidence of his identity for examination.’ ” (McKay, at p. 606; see People v. Monroe (1993) 12 Cal.App.4th 1174, 1179-1180 [Veh. Code § 40302(a) “makes custodial arrest of a traffic violator mandatory if the violator cannot produce either a driver’s license or other satisfactory evidence of his or her identity”].) The officer conducted a search of defendant incident to arrest and discovered a baggie containing suspected methamphetamine in his left sock. (McKay, at p. 606.) A subsequent computer check of defendant’s name and date of birth yielded an address that matched the address defendant had given the officer, and a general description that was consistent with defendant’s appearance.
When the defendant’s motion to suppress was denied, he pleaded guilty to possession of methamphetamine, admitted a prior strike conviction and was sentenced to prison. The judgment was affirmed on appeal by a split decision and the Supreme Court granted review. Our Supreme Court rejected the defendant’s argument that a custodial arrest for a fine-only offense violated the Fourth Amendment. “Under Atwater, all that is needed to justify a custodial arrest is a showing of probable cause. … We must therefore conclude that there is nothing inherently unconstitutional about effecting a custodial arrest for a fine-only offense.” (McKay, supra, 27 Cal.4th at p. 607.)
The court also rejected the defendant’s alternative argument that his arrest violated the Fourth Amendment because it was not authorized by Vehicle Code section 40302(a). After review of Atwater, Vehicle Code section 40302(a), and the strictures Proposition 8 places on California’s interpretation of the Fourth Amendment, the court concluded that “so long as the officer has probable cause to believe that an individual has committed a criminal offense, a custodial arrest—even one effected in violation of state arrest procedures—does not violate the Fourth Amendment. In this case, then, it is of no moment that defendant’s arrest assertedly violated the procedures set forth in section 40302(a) since (as defendant concedes) Deputy Valento had probable cause to believe defendant had violated a provision of the Vehicle Code.” (McKay, supra, 27 Cal.4th at p. 618.)
Finally, the court concluded that defendant’s arrest did not, in fact, violate Vehicle Code section 40302(a), because “an officer has broad discretion to effect a custodial arrest under section 40302(a) unless the offender has presented a current and valid driver’s license or other reliable documentary evidence of identification.” (McKay, supra, 27 Cal.4th at p. 622, italics added.)
Here, the driver of the car in which defendant was riding was detained because of the driver’s suspected violation of Vehicle Code section 27315, the mandatory safety belt law – permitting defendant to ride without proper safety restraint. (See fn. 3, ante.) Because “[a] traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver, ” defendant was also detained. (Brendlin v. California (2007) __U.S. __ [127 S.Ct. 2400, 2407].) In addition, defendant was detained because the deputies had reason to suspect that he was engaged in some criminal activity – that is, not wearing a safety belt, also a violation of Vehicle Code section 27315, which is a criminal offense. (See Kodani v. Snyder (1999) 75 Cal.App.4th 471, 476 [detention for seatbelt violation upheld in DMV suspension appeal].) Thus, the initial detention was entirely legal.
As noted, the failure to wear a seat belt while riding in a motor vehicle is an infraction (Veh. Code § 27315, subd. (h)). It is, therefore, a criminal offense. (Pen. Code §§ 17, 19.8.)
Upon further investigation, the officer could see that, despite defendant’s protestations to the contrary, defendant was not in compliance with the statute. True, he was wearing a safety belt – but because he was wearing the shoulder restraint under his armpit, he was not wearing it properly, and was thus in violation of the statute. (Hupp, supra, 389 F.Supp.2dat p. 1232.) The deputy requested defendant’s driver’s license, which would have permitted him to simply cite and release defendant for the safety belt violation. However, defendant did not have his driver’s license. Nor did he have any other documentary evidence to prove his identity. At this point, under Atwater and McKay, the deputy had probable cause to arrest defendant and was entitled to take him into custody pursuant to Vehicle Code section 40302(a). No evidence was presented at the hearing on the suppression motion, by either the officers or defendant, which suggests that the officer’s discretionary choice to arrest defendant was “based on invalid criteria, such as race, religion, or other arbitrary classification, including the exercise of protected statutory or constitutional rights.” (McKay, supra, 27 Cal.4th at p. 622.) Incident to that lawful arrest, the officer searched defendant and found methamphetamine. Defendant’s arrest did not violate Fourth Amendment or Vehicle Code section 40302(a). Therefore, the court properly denied his motion to suppress evidence.
Defendant argues, however, that we should not resolve his Fourth Amendment claims against him on the basis of the safety belt law violation because the prosecutor did not urge this basis in the trial court. In this case, we disagree. As defendant acknowledges in his supplemental briefing, while there are situations where the People are not allowed “to assert a new theory on appeal to support or defeat the trial court’s suppression ruling, ” there are also situations where the People are allowed to do so. (Green v. Superior Court (1985) 40 Cal.3d 126, 137 (Green).) Specifically, the Green court noted that the People had been prohibited “from justifying arrests on grounds which did not occur to the arresting officers at the time of the arrest.” (Ibid.) The court observed: “The obvious reason for that rule is to prevent ‘hunch’ arrests on the street, based on nothing more than confidence that a smart prosecutor will discover a legal basis in the courtroom.” (Ibid., fn. omitted.) The People have also been prohibited from asserting a new theory on appeal when “the People’s new theory was not supported by the record made at the first hearing and would have necessitated the taking of considerably more evidence, thus thwarting Penal Code section 1538.5’s purpose of avoiding continued relitigation of admissibility questions. In still other cases the defendant had no notice of the new theory and thus no opportunity to present evidence in opposition.” (Id. at pp. 137-138.)
In Green, however, the court allowed the People to prevail on a new theory of inevitable discovery because the case before it did not “suffer from those problems. The evidence supporting the plain view/inevitable discovery theory was fully developed by both the prosecution and the defense. Defendant had an opportunity to cross-examine and, indeed, did cross-examine [the witness] regarding the facts supporting this theory. Thus defendant does not appear to have been prejudiced by any lack of formal notice. The factual basis for the theory is fully set forth in the record, and it does not appear that any further evidence could have been introduced” to undermine the new theory. (Green, supra, 40 Cal.3d at p. 138, fn. omitted.)
In our view, this case does not present a situation in which we should be barred from considering the application of Atwater and McKay to an arrest for a violation of California’s safety belt law. Here, defendant knew that he was detained on the basis of a safety belt law violation, and he noticed his motion to suppress on the grounds of illegal detention, as well as illegal search and arrest. He should have been aware of the relevance of the safety belt law to the facts of his case. In addition, defendant had the opportunity to, and did, cross-examine both officers on the key facts surrounding their observations of a safety belt law violation. Furthermore, defendant testified at the suppression hearing on the type of seat belt with which the car was equipped (a shoulder restraint), and the manner in which he was wearing it (under his armpit). Thus, this is not a case where the new theory was not supported by the record made at the first hearing and would have necessitated the taking of considerably more evidence, as in Lorenzana v. Superior Court (1973) 9 Cal.3d 626 at pages 640 to 641. And, it is not a case where the defendant had no notice of the facts supporting the new theory and thus no opportunity to present evidence in opposition, as in People v. Adam (1969) 1 Cal.App.3d 486, 489; Reinert v. Superior Court (1969) 2 Cal.App.3d 36, 42; or Giordenello v. United States (1958) 357 U.S. 480, 487-488. (Green, supra, 40 Cal.3d at p. 138.)
The question remains whether this case should be governed by the line of cases in which the People sought to justify arrests on grounds “which did not occur to the arresting officers at the time of the arrest.” (Green, supra, 40 Cal.3d at p. 137; see People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 197-199; People v. Miller (1972) 7 Cal.3d 219, 225-226; Mestas v. Superior Court (1972) 7 Cal.3d 537, 542; People v. Smith (1983) 34 Cal.3d 251, 269-271; Agar v. Superior Court (1971) 21 Cal.App.3d 24, 28-32, cited in Green, supra, 40 Cal.3d at p. 137.) We do not think so, for the following reasons.
First, each of the cited cases applied California law as it existed before the passage of Proposition 8. “With the passage of Proposition 8, we are not free to exclude evidence merely because it was obtained in violation of some state statute or state constitutional provision. ‘ “Our state Constitution ... forbids the courts to order the exclusion of evidence at trial as a remedy for an unreasonable search and seizure unless that remedy is required by the federal Constitution as interpreted by the United States Supreme Court.” ’ ” (McKay, supra, 27 Cal.4th at p. 608.) As interpreted by the high court, an arresting officer’s subjective intent is not the touchstone of reasonableness under the Fourth Amendment. On the contrary, “ ‘the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.’ ” (Whren v. United States (1996) 517 U.S. 806, 812.) Here, Deputy Thornburg did not expound on his theoretical basis for searching defendant, although he did state he believed defendant had consented to the search. But whether or not Deputy Thornburg subjectively believed his search of defendant’s pockets was incident to arrest for a violation of the safety belt law is not dispositive, as long as he actually had probable cause to arrest defendant (Atwater, McKay) and the search was substantially contemporaneous with the arrest. (United States v. Robinson (1973) 414 U.S. 218; Rawlings v. Kentucky (1980) 448 U.S. 98, 111.) In this case, both predicates exist.
Second, the rationale for the line of cases cited by the Green court is not implicated here. There is no reasonable basis to fear, in this case, that the officers effected a “hunch” arrest on the street, based on nothing more than confidence in the prosecutor’s ability to discover a legal basis in the courtroom. The officers’ testimony about the sequence of events leading up to the discovery of drugs in defendant’s pockets was corroborated in every important respect by defendant’s own testimony, and the People did not discover the legal basis at issue here.
Finally, defendant argues that he was never charged with or convicted of a violation of the safety belt law, “thus, the factual questions regarding whether there was indeed any minor criminal violation were never posed below.” However, the issue at the suppression hearing was not whether defendant was in fact guilty of the safety belt law violation, but whether the officers had reasonable suspicion to detain defendant, and probable cause to arrest him, for a suspected violation. Thus, even if true, it is beside the point that defendant “could have factually developed a defense based upon several exceptions noted in Vehicle Code section 27315 (g)” because the issue at the suppression motion was not whether he was factually guilty.
Vehicle Code section 27315, subdivision (g) provides in relevant part: “This section does not apply to a passenger or operator with a physically disabling condition or medical condition which would prevent appropriate restraint in a safety belt, if the condition is duly certified by a licensed physician and surgeon or by a licensed chiropractor who shall state the nature of the condition, as well as the reason the restraint is inappropriate. This section also does not apply to a public employee, when in an authorized emergency vehicle as defined in paragraph (1) of subdivision (b) of Section 165, or to any passenger in any seat behind the front seat of an authorized emergency vehicle as defined in paragraph (1) of subdivision (b) of Section 165 operated by the public employee, unless required by the agency employing the public employee.”
In any event, we note the transcript of the suppression hearing refutes any suggestion that defendant was the passenger behind the front seat of an authorized emergency vehicle (he was riding in the front passenger seat of an older style blue Monte Carlo). The probation report indicates that defendant did not suffer from any physical or mental health problems, and that he was unemployed.
For the reasons stated above, we conclude that Officer Thornburgh lawfully conducted a search of defendant’s person incident to his custodial arrest for a suspected violation of Vehicle Code section 27315, the mandatory safety belt law.
We also reject defendant’s contention that counsel was ineffective for failing to argue that the detention was illegally prolonged. People v. McGaughran, supra, 25 Cal.3d 577 held that “a police officer who (1) has stopped a motorist for a traffic violation for which the latter cannot be taken into custody and (2) has already detained the offender for the period necessary to perform his functions arising from the violation, [cannot] thereafter lawfully detain him for an additional period of time solely for the purpose of conducting a warrant check.” (Id. at p. 586.) However, “[i]f a warrant check can be completed within that same period [necessary to discharge duties incurred by the traffic stop], no reason appears to hold it improper: because it would not add to the delay already lawfully experienced by the offender as a result of his violation, it would not represent any further intrusion on his rights.” (Id. at p. 584, fn. omitted.) McGaughran is inapposite on these facts. Here, defendant could be taken into custody for the safety belt infraction because he did not have a driver’s license or other documentary evidence of his identity. Further, there was no point during the progression of events from the stop to the search where the officers’ actions added to the delay already lawfully experienced by defendant.
II. Validity of Bunnell Waivers
Defendant contends the submission upon the preliminary hearing was a “slow plea” that required him to expressly waive his right to a jury trial; that he did not actually waive his right to a jury trial in connection with his “slow plea” to simple methamphetamine possession; and that, pursuant to People v. Ernst (1994) 8 Cal.4th 441, the error requires reversal per se. Defendant also contends the trial court failed to advise him of (1) the nature of the charges; (2) the probability that the court would find him guilty of the added second count; and (3) the direct consequences and range of the punishment for the offense. As a result, he argues, reversal is required. As we shall explain, we agree that defendant’s submission was tantamount to a guilty plea and thus qualifies as a “slow plea.” However, we conclude that the trial court’s advisement and defendant’s waiver of the jury trial right were sufficient to demonstrate that defendant’s “slow plea” was voluntarily and intelligently entered. Therefore, reversal is not required. As for the court’s failure to give the remaining Bunnell advisements, we conclude defendant has not demonstrated any prejudice.
Factual Background
Defendant was originally charged with transportation of methamphetamine, (Health & Saf. Code § 11379), a charge which carries a state prison sentence of two, three or four years. Pursuant to a negotiated disposition, the prosecutor amended the information to add a second felony count of simple possession of methamphetamine (Health & Saf. Code § 11377), which carries a state prison sentence of 16 months, two years or three years in state prison or, in the alternative, a year in the county jail.
The amendment was made with the understanding that defendant would submit the case to the court for trial on the basis of the preliminary hearing transcript and a laboratory report. On the subject of a jury trial, the court informed defendant: “I will consider that evidence sitting as a judge in a court trial. And that’s instead of having 12 people that would be selected by both sides that would listen to the evidence in the case, the evidence presented by the prosecution, also by you, if you wanted to do that, at a jury trial.” The court then indicated that the verdict was not pre-determined; the prosecutor would have to prove “this charge” beyond a reasonable doubt and if he didn’t do so “I would be obligated and I would find that you’re not guilty of the charge.” Conversely, “if I am convinced that they’ve met that standard, I would be obligated on the contrary to find that you’re guilty of the charge.” The court also indicated that it would “give both attorneys the chance to argue their analysis of the evidence sometime next week.” At this point the court asked, “Do you understand so far?” When defendant answered “yes, ” the court asked defendant, “Are you willing to proceed with a court trial, in having me decide what the facts are and apply the law to what I determine the facts to be?” Defendant said “yeah.” Eventually, the court asked defendant if he understood that “by doing it this way … you’ll also give up the right … to what we call confront witnesses. What that means is you had the right to see, hear and question any witnesses that testify. … By submitting it on the transcript, you will give up the right to question or see, hear or [have] any other witnesses testify…. Do you understand that?” Defendant said “yes.” The court then asked defendant, “[s]o do you give up the additional right to have witnesses of your own testify at this court trial?” Defendant said “yes.” The court also asked defendant if he understood that he would also give up the right to “never have to say anything unless you want to do that.” Defendant said “yeah.” The court also asked if defendant gave up that right, and defendant replied “yes.” The court also asked if defendant understood that he would be giving up the right to present any other evidence, and defendant said that he did. The court concluded: “I will find that you do understand what a jury trial amounts to. And that you knowingly and intelligently give up that right.”
At the time of decision, the court and prosecutor clarified that “one of the conditions of the jury waiver [was] that it would be a court trial on felony [Health & Safety Code section] 11377 only.”
A month later, the court found defendant guilty of count 2, “based on the evidence” and referred the case to probation and “the Prop 36 calendar so that he could be sentenced to Prop 36” in accordance with “the understanding.” Defendant was sentenced in accordance with the bargained-for understanding.
A “ ‘[n]onviolent drug possession offense, ’ as defined in Proposition 36, includes ‘the unlawful personal use, possession for personal use, or transportation for personal use’ of specified controlled substances, including cocaine base. (Pen. Code, § 1210, subd. (a); see also Health & Saf. Code, § 11054, subd. (f)(1).) It excludes ‘the possession for sale’ of any controlled substance.” (People v. Dove (2004) 124 Cal.App.4th 1, 6.)
Analysis
Defendant argues that the colloquy between him and the court demonstrates that he entered into a “slow plea.” We agree. “A slow plea is defined as a submission of the guilt phase to the court on the basis of the preliminary hearing transcripts that is tantamount to a plea of guilty because guilt is apparent on the face of the transcripts and conviction is a foregone conclusion if no defense is offered. [Citation.] Deciding whether a submission is a slow plea is often difficult, and courts generally review such pleas based on defendant’s willingness to contest guilt during the court trial. ‘Submissions that are not considered slow pleas include those in which (1) the preliminary hearing involves substantial cross-examination of the prosecution witnesses and the presentation of defense evidence or (2) the facts revealed at the preliminary examination are essentially undisputed but counsel makes an argument to the court as to the legal significance to be accorded them.’ ” (People v. Sanchez (1995) 12 Cal.4th 1, 28.) It is true that the court’s comments suggested that the question of guilt or innocence was not a foregone conclusion: “I will read the preliminary hearing … transcript and will analyze it in light of the People’s burden of proof beyond a reasonable doubt.” However, most of the cross-examination at the preliminary hearing centered on the legality of the search, not on defendant’s guilt or innocence of simple methamphetamine possession, the issue before the court in the submission. Furthermore, on the basis of the preliminary hearing transcript and the laboratory report, and in the absence of any defense, conviction of methamphetamine possession was a foregone conclusion.
Moreover, defense counsel did not argue for acquittal of the charge. He argued that the court should not find defendant guilty of transportation but only of misdemeanor possession of methamphetamine, given the very small amount of methamphetamine in defendant’s possession. To this argument the prosecutor responded that “one of the conditions of the jury waiver [was] that it would be a court trial on felony [Health & Safety Code section] 11377 only” and the court agreed. Thus, the record suggests that neither transportation of methamphetamine nor misdemeanor possession were ever at issue. In our view, this submission qualifies as a “slow plea” under Sanchez.
Because this was a slow plea, the trial court was required to (1) advise defendant of his Boykin-Tahl rights, that is, his constitutional rights to jury trial, silence and confrontation, and (2) secure his express waivers of those rights. (Boykin v. Alabama (1969) 395 U.S. 238 (Boykin); In re Tahl (1969) 1 Cal.3d 122 (Tahl); Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605.) In addition, the record “shall also demonstrate that [the defendant] understands the nature of the charge. … In cases in which there is to be a submission without a reservation by the defendant of the right to present evidence in his own defense he shall be advised of that right and an express waiver thereof taken. If a defendant does not reserve the right to present additional evidence and does not advise the court that he will contest his guilt in argument to the court, the defendant shall be advised of the probability that the submission will result in a conviction of the offense or offenses charged. In all guilty plea and submission cases the defendant shall be advised of the direct consequences of conviction such as the permissible range of punishment provided by statute….” (Bunnell, at p. 605.)
Prior to 1992, our Supreme Court “treated the failure to comply with a defendant’s Boykin-Tahl rights as requiring automatic reversal of the defendant’s conviction.” (People v. Allen (1999) 21 Cal.4th 424, 437 (Allen).) However, in People v. Howard (1992) 1 Cal.4th 1132, the court “reevaluated the rule of automatic reversal.” (Allen, at p. 437.) The Howard court concluded “that the Boykin-Tahl rule merely requires that ‘[t]he record must affirmatively demonstrate that the plea [that is, the admission of a prior conviction] was voluntary and intelligent under the totality of the circumstances.’ (Italics added.) … [¶] . . . [¶] After Howard, for an appellate court simply to determine the defendant had not been expressly told of his rights, nor expressly waived them was no longer sufficient. If the record failed to disclose proper advisements and waivers, the appellate court was required to determine further, based on the totality of the circumstances, whether the defendant’s admission in any event was voluntarily and intelligently made. This determination required the appellate court to examine the entire proceeding. [Citations.] As in all appeals, however, this determination was limited to the trial record.” (Allen, at pp. 438-439.)
Howard’s rule has been applied not only to the Boykin-Tahl advisements and waivers required before an admission of a prior conviction (as in Howard itself), but also to the advisement and waiver of constitutional rights required before a guilty plea or a submission upon a preliminary hearing transcript that is tantamount to a guilty plea, i.e., a “slow plea.” (Allen, supra, 21 Cal.4th at p. 439, fn. 4; People v. Knight (1992) 6 Cal.App.4th 1829.)
Unlike the requirement that a defendant be advised of his Boykin-Tahl rights before entering a plea or submission, which is constitutionally compelled, Bunnell’s requirement of other advisements is a judicially declared rule of criminal procedure. (Bunnell, supra, 13 Cal.3d at p. 605; People v. Walker, supra, 54 Cal.3d at 1013, 1022; see People v. Wright (1987) 43 Cal.3d 487, 495, disapproved on another ground in People v. Howard (1992) 1 Cal.4th 1132, 1174-1178, cert. den. sub nom. Howard v. California (1992) 506 U.S. 942.) “[A] defendant (even on direct appeal) is entitled to relief based upon a trial court’s misadvisement only if the defendant establishes that he or she was prejudiced by the misadvisement, i.e., that the defendant would not have entered the plea of guilty had the trial court given a proper advisement.” (In re Moser (1993) 6 Cal.4th 342, 352.)
In this case we have examined the trial court’s colloquy with defendant and his counsel and find that defendant was advised of, and expressly waived, his right to a jury trial. While the court’s explanation of the jury trial right could have been better, we nevertheless conclude that the court’s advisements were sufficient to apprise the defendant that he had a right to have a jury, that is, “12 people that would be selected by both sides” listen to the evidence in the case, “the evidence presented by the prosecution, also by you … at a jury trial” and decide if the prosecution had proved the charge beyond a reasonable doubt.
Similarly, while the court might have elicited a clearer waiver, we think defendant’s waiver here – saying “yeah” to the court’s question, “Are you willing to proceed with a court trial, in having me decide what the facts are and apply the law to what I determine the facts to be?” – satisfactorily demonstrates that defendant expressly gave up his right to a jury trial.
With respect to the ancillary advisements required by Bunnell, we find that the court was not required, in this case, to warn defendant that he would probably be found guilty, because defense counsel reserved the right to argue the case at a later time. The court informed defendant: “I’ll give both attorneys a chance to argue their analysis of the evidence sometime next week.”
As for the nature of the charges, the court did inform defendant, on the record, that the prosecutor was going “to amend and add a count. [¶] . . . [¶] [Of] 11377, simple possession of methamphetamine, as a felony.” The record also reflects that there had been prior discussions of the proposed disposition, and defendant asked no questions about the charge. Again, while the court did not make the best record it could have, we find no basis to infer that defendant was unaware of the nature of the charges he faced.
The court also failed to inform defendant on the record of the consequences of conviction. “On submission on a transcript of preliminary hearing, a defendant must be told of the potential maximum and minimum terms of imprisonment. [Citation.] Nonetheless, a court’s failure to comply with this rule requires reversal only if it is reasonably probable a result more favorable to the defendant would have been reached in absence of the error.” (Sanchez, supra, 12 Cal.4th at p. 30, citing People v. Watson (1956) 46 Cal.2d 818, 836.) Here, as in Sanchez, defendant has not demonstrated that if he had been properly advised, he would not have waived his rights and submitted his case to the court for trial on the preliminary hearing transcript and the lab report. (See Sanchez, at p. 31.) The record reflects that defendant gained a significant advantage in sentencing by accepting a “slow plea.” The court had agreed to allow the prosecutor to amend the information to add a lesser charge and had further agreed to limit its review of the evidence to the question whether it supported a conviction for that lesser charge only, and to refer defendant for treatment pursuant to Proposition 36 if it did. Defendant received the benefit of his bargain and did not complain at the sentencing hearing. No prejudice appears.
CONCLUSION
Defendant’s motion to suppress evidence was properly denied. Consideration of the totality of the circumstances here leads us to the conclusion that defendant expressly, voluntarily and intelligently waived his right to a jury trial. Assuming the court erred in failing to properly give ancillary Bunnell advisements, defendant was not prejudiced.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.