Opinion
E068305
09-20-2018
THE PEOPLE, Plaintiff and Respondent, v. MANUEL ROBERT O'ROURKE, Defendant and Appellant.
John Evan Edwards, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 16CR005549) OPINION APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez, Judge. Affirmed in part, reversed in part with directions. John Evan Edwards, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant, Manuel Robert O'Rourke, sprayed several people at a bus stop with pepper spray. Defendant appeals from the judgment entered following jury convictions for use of tear gas (Pen. Code, § 22810, subd. (g)(1); count 2) and unlawful use of tear gas (§ 22900; count 3). Defendant waived his right to a jury trial and admitted two prison priors (§§ 667.5, subd. (b), 1170.12, subds. (b), (c)(1)) and a serious or violent felony prior (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) as to count 2. The trial court sentenced defendant to seven years in prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends his waiver of his constitutional trial rights and admission of his prior convictions was not knowing and voluntary. He also contends the court erred in excluding evidence that two days before he committed the charged offenses, he reported to the police that teenagers had been harassing him. Defendant argues the harassment evidence supported his defense that when he committed the charged offenses, he felt threatened and acted in self-defense.
We agree the judgment must be reversed as to defendant's prior conviction enhancements (priors), because the trial court failed to obtain proper waivers of his trial rights and advise defendant of the penal effects of admitting his priors. Therefore, defendant's sentence is vacated and the matter is remanded for a new trial solely on the priors. The judgment is affirmed in all other respects.
II.
FACTS
While waiting at a bus stop during the afternoon of March 18, 2016, Bridget, who was 67 years old, saw defendant yelling obscenities at teenagers who were across the street. Defendant was on the same side of the street as Bridget. The teenagers yelled back at defendant but did not display any aggression toward him. Defendant taunted and threatened the teenagers and exhorted them to come over to his side of the street. Bridget asked defendant to lower his voice and refrain from using obscenities. Defendant cursed Bridget and stared at her in a threatening manner. Bridget stared back at defendant and then turned her back on him and sat back down on the bus stop bench. As the three teenage boys crossed the street and approached the bus stop, defendant walked toward them, continuing to yell at them. Defendant had a large wrench hooked to his pants.
As two former navy corpsman, David C. and Brandon M., were driving by, they noticed defendant's aggressive behavior and body language directed towards Bridget and stopped to intervene. Brandon called 911 while David got between defendant and Bridget. David and Brandon told the boys to go home. Two of the boys approached defendant. Defendant and the boys continued yelling at each other. The boys' ages appeared to range from 10 to 16 years old. Defendant started spraying pepper spray at the boys. The boys held up their skateboards to shield themselves from the spray and fled. A gust of wind blew some of the pepper spray onto Bridget's face and hands while she was seated on the bus stop bench. Defendant was about a foot away from Bridget.
According to Bridget, the boys did not make any aggressive movements towards defendant. Donna, a passing motorist, observed the incident and called 911. She testified that defendant had "an aggressive stance" while spraying what appeared to be pepper spray at four young men with skateboards. The boys stepped backwards as defendant sprayed them. As defendant tried to follow the boys, Brandon remained between defendant and the boys. When California Highway Patrol Officer Swanson arrived, defendant was standing next to two of the boys, who were sitting on the curb. David and Brandon were maintaining the peace.
Sheriff's Deputy Abell arrived at the scene, confiscated the pepper spray canister, and arrested defendant. Defendant was angry and belligerent. Deputy Abell testified that the canister contained pepper spray, which is considered a type of tear gas and is considered dangerous.
III.
ADMISSION OF DEFENDANT'S PRIORS
Defendant contends the trial court erred in failing to advise him properly of his Boykin-Tahl rights before he admitted his priors. The court did not advise defendant of his constitutional rights to remain silent and confront adverse witnesses, or of the penal consequences of his plea. Defendant therefore asserts his admissions were not voluntarily and intelligently made. The People argue that defendant's admission of his priors was voluntary and intelligent even though the trial court did not advise defendant of his rights to silence and confrontation or of the penalty effects of admitting the priors.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122. --------
A. Procedural Background
The prosecution alleged in the amended information that defendant had one serious or violent felony prior (strike) and two prison priors. The trial court granted defendant's motion to bifurcate trial of the prior conviction allegations from the substantive charges. On the final day of trial, defense counsel informed the court, "My belief is, after speaking with Mr. O'Rourke, that he would be admitting the priors if there is a conviction on Count 2." Defendant confirmed this representation was correct. The trial court then informed defendant that he had a right to a jury trial on the priors. Defendant stated he understood this right. The court asked defendant if he wished to waive his rights and admit the priors. Defendant stated, "I'll waive the jury." When the court asked defendant if he also wished to admit the priors, defendant stated, "I admit those." Defendant's attorney joined. The trial court concluded, "We will show that he has waived his right to a jury trial if it becomes necessary." The court added that, if the jury found defendant not guilty, the priors would become moot. The court minutes state, "Defendant admits priors and waives a jury trial as to the priors."
After the prosecution's case, the trial court asked if defendant intended to testify. Defense counsel responded that he believed defendant did not intend to do so. The court told defendant that he had a constitutional right to testify and also a constitutional right not to testify and remain silent. The court asked defendant if he had discussed that with his attorney. Defendant said they had "barely discussed it at all. Very minimally we discussed it." Defendant acknowledged he had gone to trial before.
The court then told defendant during a hearing on whether to allow evidence of the alleged harassment incident two days before the charged offenses: "And so you understand your rights and in regards to either remaining silent and not testifying or the right to take the witness stand on your own behalf. Okay. That is your right and your right alone. Your attorney can offer you advice, but ultimately it's your decision as to whether or not you want to testify." Defendant asked the court if he could speak with his attorney. The court permitted him to do so during a 10-minute recess.
Upon reconvening, the court noted that defendant had an opportunity to talk with his attorney about his rights to remain silent, "to rely upon the state of the evidence," and to testify. Defendant told the court he decided to follow his attorney's advice and not testify. Defense counsel acknowledged this was his advice and that such advice was primarily based upon the fact that defendant had three prior convictions, which were felonies and crimes of violence. Defense counsel stated he believed that the jury would likely find against defendant and disbelieve him if he testified because of his prior convictions.
The next day, after the jury announced its verdict, the trial court noted that defendant had waived a jury trial as to his priors and admitted his priors. The court further stated that the court had found true the priors. During sentencing, defendant told the court he was unaware that one of the priors he had admitted was a strike. Nevertheless, the court sentenced defendant based on his previous admission of two prison priors and his prior strike conviction.
B. Applicable Law
A criminal defendant who pleads guilty 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. A waiver of these fundamental constitutional rights must be made knowingly, intelligently, and voluntarily, and such a waiver will not be presumed from a silent record. (Boykin v. Alabama, supra, 395 U.S. at p. 243; People v. Lloyd (2015) 236 Cal.App.4th 49, 57.) In California, the same rule applies to admitting a prior conviction or prior prison term allegation. (In re Yurko (1974) 10 Cal.3d 857, 863; Lloyd, supra, at p. 57.) A reviewing court will find a defendant's admission of a prior conviction valid if the record affirmatively shows it was voluntary and intelligent under the totality of the circumstances. (People v. Howard (1992) 1 Cal.4th 1132, 1175; see also People v. Farwell (2018) 5 Cal.5th 295, 303-304 [totality of the circumstances test applies in all circumstances where the court fails, either partially or completely, to advise and take waivers of the defendant's trial rights before accepting a guilty plea].)
The California Supreme Court in In re Tahl, supra, 1 Cal.3d at pages 132-133, held that the trial court must advise a defendant on the record of his or her rights to silence, confrontation of witnesses, and a jury trial, and the defendant must waive these rights on the record before the trial court accepts a guilty plea. (Ibid.) It later clarified that the requirement of such advisements is a matter of the court's own supervisory powers and not a matter of federal constitutional law. (People v. Howard, supra, 1 Cal.4th at p. 1175.) Therefore, even when a trial court fails to advise a defendant of his or her constitutional rights, a guilty plea "is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances." (Ibid.) Where "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 the circumstances." (People v. Mosby (2004) 33 Cal.4th 353, 361 (Mosby).)
In Mosby, supra, 33 Cal.4th 353, the court considered the validity of the defendant's admission of a prior conviction after he had received incomplete Boykin admonitions. Although the defendant was advised of and waived his right to jury trial, he was not told of his right against self-incrimination or to confront adverse witnesses, nor did he expressly waive those rights. (Mosby, supra, at pp. 356, 358.) Mosby explained that Howard "shifted [the focus] from whether the defendant received express rights advisements, and expressly waived them, to whether the defendant's admission was intelligent and voluntary because it was given with an understanding of the rights waived." (Mosby, supra, at p. 361.) If the record shows there have not been 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." (Ibid.) Applying this test, Mosby upheld the waiver. (Id. at p. 364.)
The Mosby court reasoned that "[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." (Mosby, supra, 33 Cal.4th 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.) On that basis, 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, at p. 365, fn. omitted.)
In People v. Farwell, supra, 5 Cal.5th 295, the court recently held that the totality of the circumstances test applies in both incomplete advisements and silent record cases, as in Farwell, where the trial court did not advise the defendant of any constitutional rights. (Id. at p. 298.) After discussing Mosby and applying the Boykin-Tahl analysis and Howard test, the court in Farwell concluded the court record failed to affirmatively show that the defendant understood his attorney's stipulation, which was tantamount to a guilty plea and resulted in waiver of his constitutional trial rights. (Farwell, supra, at p. 295.)
C. Discussion
Defendant argues the record demonstrates he did not voluntarily and intelligently waive his trial rights and admit his priors, because the court did not advise him of his rights to silence and confrontation or inform him of the penal consequences of admitting his priors.
Defendant argues that his diagnosis of suffering from a psychotic disorder demonstrates his waiver of his trial rights and admission of his priors was not knowingly made. We do not find this argument persuasive because the court-appointed psychiatrist concluded in his psychological examination report that defendant was capable of understanding the nature and purpose of the criminal proceedings against him, and defendant had the ability to work rationally with his attorney in the preparation of his defense. The psychological examination report does not support the proposition that defendant's mental illness interfered in any way with his ability to voluntarily and intelligently waive his trial rights and admit his priors.
Other circumstances reflected in the record, however, demonstrate that defendant's waiver of his trial rights and admission of his priors was not voluntary and intelligent. Unlike in Mosby, defendant admitted his priors mid-trial, before defendant informed the court he would not testify. It was not until defendant told the court he would not testify that the trial court advised defendant near the end of the trial of his rights to testify, to remain silent, and to confrontation. When the court advised defendant of these additional rights, defendant requested to discuss with his attorney waiving his right to testify. Defendant told the court that he and his attorney had "[v]ery minimally" discussed the matter. They had "just barely discussed it at all." This suggests that defendant did not fully understand his trial rights when he previously admitted his priors.
Although some of the circumstances in Mosby are similar to those in the instant case, Mosby is distinguishable. As in Mosby, here, defendant was advised of his right to a jury trial on the prior conviction allegations and defendant personally waived this right to a jury trial and admitted his priors. Also, as in Mosby, when defendant admitted his priors, he had previously cross-examined the prosecution's witnesses during the trial on the substantive offenses and his waiver of a jury trial and admission of his priors occurred near the end of the prosecution. In addition, when defense counsel advised the court that defendant would be admitting his priors, defense counsel told the court defendant decided to do so after speaking with defense counsel. Defendant also had previous experience in the criminal justice system, including previously going to trial on several occasions, with convictions in 2002, 2003, 2006, 2007, and 2012, for crimes such as disorderly conduct, assault, domestic violence, involuntary manslaughter, and assault with a deadly weapon. These circumstances suggest defendant was aware of his trial rights, including his rights to silence and confrontation.
However, unlike in Mosby, there is direct evidence that defendant was unaware he was admitting a prior strike. He therefore was unaware of the penal effects of admitting his priors. Defendant argues that the record contains a "crystal-clear statement" by defendant during sentencing that he did not understand the penal consequences of his admission of his priors. During the sentencing hearing, two months after the trial, defendant acknowledged he admitted the two prison priors but said he was unaware he had a prior strike and had admitted it. Nevertheless, the trial court found defendant had admitted the strike. As a consequence, the court doubled defendant's three-year base term to six years on count 2, in addition to imposing a consecutive one-year term for one of the prison priors.
Before a defendant admits a prior conviction allegation, the trial court is required to fully advise the defendant of not only the defendant's constitutional rights subject to waiver (self-incrimination, confrontation, and jury trial), but also advise the defendant of the full penal effect of a finding of the truth of a prior conviction allegation. (In re Yurko, supra, 10 Cal.3d at p. 865; People v. Howard, supra, 1 Cal.4th at pp. 1175-1176.) The second advisement requires that the accused "must be advised of the precise increase in the prison term that might be imposed, the effect on parole eligibility, and the possibility of being adjudged a habitual criminal." (People v. Cross (2015) 61 Cal.4th 164, 171; Yurko, supra, at p. 864.) The prophylactic purpose of providing the advisements before a defendant admits the truth of a prior conviction allegation is to help ensure that the constitutional standards of voluntariness and intelligence are met. (Cross, supra, at p. 173.)
Although the failure to advise a defendant of the penal consequences of a plea or admission does not constitute federal constitutional error, the omission violates a judicially declared rule of criminal procedure which requires the same analysis here. In determining whether defendant's waiver of trial rights and admission of his priors was voluntary and intelligent, this court thus must consider whether the trial court fully advised defendant of the penal consequences of admitting his priors. (In re Yurko, supra, 10 Cal.3d at pp. 864-865.)
We conclude the record shows that defendant was not sufficiently advised or aware of the penal effect of admitting all three priors or that one of the priors was a strike. Defendant's statement made during sentencing indicates that he was unaware he was admitting a strike and thus did not realize that admitting the prior strike would have the effect of doubling his three-year base term on count 2. There is no evidence in the record that his attorney, the trial court, or anyone else advised him of this before he admitted his priors. The court also did not advise him of the penal effects of admitting the two prison priors.
The record at best is unclear as to defendant's understanding of his trial rights and the penal effects when he admitted his priors. Based on the totality of the circumstances reflected in the record, we thus conclude defendant did not voluntarily and intelligently waive his trial rights and admit his priors. As a result, defendant's admissions of his priors, his waiver of a jury trial on them, and the trial court's findings regarding the truth of those allegations must be set aside.
IV.
INADMISSIBILITY OF BB INCIDENT EVIDENCE
Defendant contends the trial court abused its discretion in excluding evidence that two days before the charged crimes (the tear gas incident), defendant called the sheriff's department and reported that teenagers had been shooting BB's at the trailer where he lived. Defendant believed that the teenagers involved in the BB incident were also involved in the tear gas incident.
After the prosecution completed its case, defendant requested the court to allow defendant to introduce evidence of the BB incident which would consist of testimony by the deputy sheriff who received defendant's report of the incident. Defense counsel informed the court that he anticipated the deputy sheriff would testify that defendant called about midnight and reported he had heard a couple of BB's hitting the side window of his trailer. Defendant said he went outside and noticed six or seven male teenagers and one female teenager. The names of the teenagers were unknown. Defendant said he did not want a report prepared. He only wanted the incident documented. Defense counsel argued that the deputy's testimony regarding the BB incident was relevant because it explained why defendant believed the teenagers were a threat to him when he sprayed them with tear gas in self-defense.
The trial court concluded that the allegation was too tenuous that the individuals in both incidents were the same. The court therefore found there was not a reasonable likelihood the proposed evidence would be relevant, and introducing the BB incident evidence would constitute an unreasonable consumption of time. The trial court further stated it would be unreasonable to conclude the evidence would provide any insight into the defense or whether defendant committed the charged crimes. Therefore, under Evidence Code section 352, the court excluded the proposed testimony by the deputy who investigated the BB incident.
After the trial court denied defendant's request to introduce the evidence, defendant submitted on the evidence presented during the prosecution's case and defense counsel argued during closing argument that defendant acted in self-defense. The court instructed the jury on the elements of self-defense, including instructing the jury that it was required to "consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed."
The trial court retains discretion to admit or exclude relevant evidence offered. (People v. Rodriguez (1999) 20 Cal.4th 1, 9; Evid. Code, § 352.) A trial court's exercise of such discretion in admitting or excluding evidence "is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (Rodriguez, supra, at pp. 9-10.)
Defendant argues the evidence was relevant to show his mental state at the time of the tear gas incident, in which he believed the teenagers were a threat to him. Defendant asserts the evidence was crucial to his claim he acted in self-defense when he sprayed the teenagers with pepper spray. We disagree. The evidence was irrelevant because there was no showing that the teenagers involved in the BB incident were actually the same individuals involved in the tear gas incident. Defense counsel argued that defendant believed the same teenagers were involved in both the BB incident and the tear gas incident, but there was no showing that this belief was reasonable.
There was also no showing that defendant feared the teenagers, or any reason for defendant to fear them and act in self-defense. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083.) Self-defense requires the defendant to "actually and reasonably believe in the need to defend." (Id. at p. 1082.) "Although the belief in the need to defend must be objectively reasonable, a jury must consider what 'would appear to be necessary to a reasonable person in a similar situation and with similar knowledge . . . .' (CALJIC No. 5.50.) It judges reasonableness 'from the point of view of a reasonable person in the position of defendant . . . .' [Citation.] To do this, it must consider all the '"'facts and circumstances . . . in determining whether the defendant acted in a manner in which a reasonable man would act in protecting his own life or bodily safety.'"' [Citation.]" (Id. at pp. 1082-1083.)
Here, there was no evidence the individuals involved in the BB incident were the same individuals involved in the tear gas incident or that they threatened defendant in any way. Unrefuted evidence established that defendant, not the teenagers, initiated the unprovoked chemical attack against the teenagers. The BB incident evidence therefore had little, if any, probative value and would have been prejudicial and confusing. The jurors would have been left to speculate whether the teenagers were involved in both incidents and whether the BB incident evidence had any relevance to the tear gas incident.
In addition, any testimony by the deputy regarding what defendant told him about the BB incident would constitute inadmissible hearsay evidence. "'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) Even if the hearsay was admissible under the mental state hearsay exception (Evid. Code, § 1250), the trial court reasonably excluded the evidence as irrelevant because there was insufficient evidence linking the BB incident report to defendant's state of mind at the time of the tear gas incident. Defendant was the unprovoked aggressor in the tear gas incident and there was insufficient evidence that defendant reasonably feared the teenagers, regardless of whether he believed they were the individuals who had fired BB's at his trailer. Any connection between defendant's statement reporting the BB incident and defendant's state of mind at the time of the tear gas incident is tenuous at best. Therefore, the trial court did not abuse its discretion in excluding the BB incident evidence as irrelevant, inadmissible hearsay, and inadmissible under Evidence Code section 352.
V.
DISPOSITION
We reverse the judgment in part, as follows: We vacate defendant's sentence and remand for a new court trial on the prior conviction allegations and resentencing. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. MILLER
J.