Opinion
D071839
05-31-2018
THE PEOPLE, Plaintiff and Respondent, v. OMAR MOHAMED UMIYE, Defendant and Appellant.
Bruce L. Kotler, 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, Barry Carlton and Sabrina Y. Lane-Erwin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD268945) APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge. Affirmed in part, reversed in part, and remanded with directions. Bruce L. Kotler, 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, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Omar Umiye guilty of driving under the influence of drugs (former Veh. Code, § 23152, subd. (e), now Veh. Code, § 23152, subd. (f)). He admitted to three prior DUI convictions (Veh. Code §§ 23152, subd. (a), 23103), and one prison prior (Pen. Code, § 667.5). The trial court imposed the upper term of three years, plus one year for the prison prior. The court sentenced Umiye to two years in custody, and two years of mandatory supervision. The supervision conditions included notifying the probation officer about residence changes and contacts with law enforcement.
Umiye contends his admissions were invalid, arguing the trial court failed to adequately advise him of his rights and his admissions were not voluntary and intelligent under the totality of the circumstances. This contention has merit. We reverse the admissions and remand for further proceedings and resentencing. The judgment is otherwise affirmed.
Umiye also contends the residence and contact conditions were unconstitutionally overbroad. Because we remand for resentencing, we do not reach these issues.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2016, a San Diego Police Department officer arrested Umiye after observing him asleep in a vehicle that was against a curb and still running, and conducting field sobriety tests. An information charged Umiye with driving under the influence of drugs, and also alleged he had three prior convictions in the past 10 years—two for driving under the influence under Vehicle Code section 23152, subdivision (a), and one for reckless driving under Vehicle Code section 23103, subdivision (a)—raising the present offense to a felony under Vehicle Code § 23550, subdivision (a), and a prison prior.
Umiye moved to bifurcate the prior convictions and prison prior, which the trial court granted. A jury trial was held on the substantive charge. Umiye did not testify. After the jury began deliberations, the following exchange occurred:
THE COURT: All right. We are outside the presence of the jury. What do you want to do about the priors?
[DEFENSE COUNSEL]: One moment, Your Honor.
THE COURT: Sure.
(Pause.) [¶] (Counsel confer.)
[DEFENSE COUNSEL]: Your Honor, we are agreeing to a court trial and considering an admission.
THE COURT: Okay. Have you guys—Off the record. [¶] (Discussion concerning an unrelated case.) [¶] Are we ready on—Mr. Umiye, there's nothing much for a jury to do on priors anymore.
[DEFENSE COUNSEL]: I understand, Your Honor.
THE COURT: We simply need to do a court trial or admit.
[DEFENSE COUNSEL]: I understand. Mr. Umiye's present. He is aware of his right to a trial as to the priors, the DUIs, and the prison prior. At this time he does enter an admission to those priors.
THE COURT: All right. Sir, do you admit that the three DUI priors—one from January 24th, 2013, one from March 25th, 2011, and one from May 21st, 2008—you have in fact committed those priors?
[DEFENSE COUNSEL]: Yes, Your Honor.
[¶] . . . [¶]
[PROSECUTOR]: Your honor, there is also a prison prior alleged on the Complaint as well.
[DEFENSE COUNSEL]: Which is one of those three priors.
THE COURT: Right. You also admit the prison priors alleged under 667.5(b)?
THE DEFENDANT: No question about that.
THE COURT: Yes?
THE DEFENDANT: Yes.
THE COURT: Okay. Thank you, sir. [¶] . . . he's admitted the priors. So we've taken care of that. There's a waiver by both parties to a jury and/or trial. . . .
The jury convicted Umiye of driving under the influence of drugs. The trial court chose the upper term of three years, and a consecutive term of one year on the prison prior. The court imposed a split sentence of two years of incarceration and two years of mandatory supervision. The supervision conditions required Umiye to report "any change of address" and "contact [with law enforcement] or arrest" to the probation officer.
DISCUSSION
Umiye contends the trial court failed to adequately advise him of his rights as to his prior convictions, and that his admissions regarding those convictions were not knowing and voluntary.
A. Applicable Law and Standard of Review
Trial courts are required to "advise defendants who intend to admit prior convictions that they have the right to a jury trial on the prior, the right to confront and cross-examine witnesses, and the right against self-incrimination (Boykin/Tahl rights). (Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.)." (People v. Campbell (1999) 76 Cal.App.4th 305, 309-310 (Campbell), citing In re Yurko (1974) 10 Cal.3d 857, 861-865; see People v. Cross (2015) 61 Cal.4th 164, 170 (Cross) [court must advise defendant of rights and "solicit a personal waiver of each"].) "[A] defendant must also be advised of 'the full penal effect of a finding of the truth of an allegation of prior convictions.' " (Cross, at pp. 170-171.)
In People v. Mosby (2004) 33 Cal.4th 353 (Mosby), the California Supreme Court distinguished between two types of cases in which defendants admitted prior convictions after a jury trial on the substantive charges: (1) truly silent record cases; and (2) incomplete Boykin-Tahl advisement cases. "Truly silent-record cases are those that show no express advisement or waiver of the Boykin-Tahl rights before a defendant's admission of a prior conviction." (Id. at p. 361.) A case of incomplete advisement occurs when the defendant is advised of his or her right to a jury trial on the prior conviction allegation, but not of the right to remain silent or the right to confront witnesses. (Id. at p. 363.)
Silent record cases must be remanded because "[it] cannot [be inferred] that in admitting the prior the defendant has knowingly and intelligently waived [the right to trial] as well as the associated rights to silence and confrontation of witnesses." (Mosby, supra, 33 Cal.4th at p. 362; Campbell, supra, 76 Cal.App.4th at p. 310 ["we are not permitted to imply knowledge and a waiver of rights on a silent record"].) Conversely, cases involving incomplete advisements can be affirmed if "the record affirmatively shows that [the admission] is voluntary and intelligent under the totality of the circumstances." (People v. Howard (1992) 1 Cal.4th 1132, 1175.) For this category of incomplete advisements, we "must go beyond the courtroom colloquy" and "examine the record of 'the entire proceeding' to assess whether the defendant's admission of the prior conviction was intelligent and voluntary . . . ." (Mosby, at p. 361.)
Mosby was an incomplete advisement case. In Mosby, after a jury trial, the trial court advised the defendant he had a right to a jury trial on the prior conviction, but did not address his other rights, and the defendant waived the jury trial. (Mosby, supra, 33 Cal.4th at p. 358.) The California Supreme Court determined the defendant's admission was knowing and voluntary under the totality of circumstances, as he had just participated in the jury trial (at which he did not testify, and his counsel confronted witnesses); he had previous experience in the criminal justice system; and his prior conviction was based on a guilty plea, for which he would have received the requisite advisements. (Mosby, at pp. 364-365.)
The exchange was, in relevant part: "The Court: . . . [Y]ou're entitled to have this jury determine the truth of the allegation that you suffered this prior felony conviction. [¶] . . . [¶] Do you understand that?" "The Defendant: Yes." "The Court: Do you waive and give up your right to have this jury make a determination as to whether you suffered such a prior conviction?" "The Defendant: Yes." (Mosby, supra, 33 Cal.4th at p. 358.)
In contrast to incomplete advisements, Mosby distinguished cases where there was absolutely no advisement and waiver as to the jury or court trial right (Mosby, supra, 33 Cal.4th at pp. 361-362), or where the trial court made such a fleeting reference to the right to trial that it was effectively indistinguishable from a complete lack of advisement and waiver. (Id. at p. 362, citing People v. Johnson (1993) 15 Cal.App.4th 169, 177-178 (Johnson).) The Johnson decision, which was discussed in Mosby, is instructive. In Johnson, following a jury trial, the trial court asked defendant if he admitted the priors; he became confused and the court stated: " 'All I want to know is whether you were convicted or whether or not you want a jury trial; were you convicted?' " (Johnson, at p. 177.) This court reversed the judgment finding true defendant's admission of the alleged prior convictions, reasoning: "We have no doubt that Johnson was in fact aware of his right to a jury trial, his right to confront witnesses, and his right to remain silent, all of which he had just exercised in trial. What is impossible to determine from this silent record is whether Johnson not only was aware of these rights, but was also prepared to waive them as a condition to admitting his prior offenses." (Id. at p. 178.) In discussing Johnson, the California Supreme Court explained: "[a]lthough the record was not entirely silent . . . , it was so nearly silent as to be indistinguishable . . . ." (Mosby, at p. 362.)
B. Analysis
This case does not involve an entirely silent record, but, as in Johnson, it is effectively indistinguishable from one. The trial court did not inform Umiye he had a right to a jury trial on the priors, and said nothing about his right to remain silent, his right to confront witnesses, or sentencing consequences. The court only made a passing reference to a jury trial, stating "there's nothing much for a jury to do on priors anymore." That statement, coupled with the comment that "[w]e simply need to do a court trial or admit," actually could have dissuaded Umiye from exercising his rights, to the extent he was aware of them.
The People state the court "expressly referenced the option[] of a jury trial" and that Umiye "was advised of his right to a jury trial"—in each case without citing the record. The only statement in the transcript regarding a jury trial on the priors appears to be the inadequate, passing reference that there was not "much for a jury to do on priors . . . ." But this reference to the jury's purported role was "so nearly silent [on advisement] as to be indistinguishable" from the silent record cases. (Mosby, supra, 33 Cal.4th at p. 362; Johnson, supra, 15 Cal.App.4th at p. 177 [classifying as near silent on advisement the phrase, " '[a]ll I want to know is whether you were convicted or whether or not you want a jury trial' "].)
We recognize the court stated after the colloquy that there was a "waiver by both parties to a jury," but this statement is not supported by what had just transpired, and it also is insufficient to establish a proper advisement and waiver.
Even if we were to treat this case as an incomplete advisement (rather than silent record) case, reversal is required because we cannot conclude Umiye's admissions as to his prior convictions were voluntary and intelligent under the totality of the circumstances. In applying the totality of the circumstances standard, the People cite Mosby, and contend Umiye had just finished a jury trial, had experience in the criminal justice system, and pled guilty (or went to trial) on his priors.
The issue of whether the "totality of the circumstances" standard may be applied in a silent record case, and the extent to which other parts of the proceedings and a defendant's prior experience with the criminal justice system may be considered, is pending before the California Supreme Court in People v. Farwell, review granted Feb. 3, 2016, S231009. The outcome of that proceeding does not affect this case, given our conclusion that the record when considered as a whole does not establish a voluntary and intelligent admission and waiver.
Mosby is distinguishable. The defendant in that case had not only finished a jury trial, but had actually been advised of his right to a jury trial on the prior and waived it. (Mosby, supra, 33 Cal.4th at p. 358.) Umiye did not receive that advisement, or provide such waiver, in any meaningful sense. When the court bifurcated the priors, it simply stated "granted," and did not give admonitions at that time either. (Cf. Mosby, supra, 33 Cal.4th at p. 358 [defendant stated "yes" to whether he understood jury trial right, and that he waived it].) Umiye's admission of the priors therefore was not voluntary and intelligent.
We also reject the People's claim that we should infer Umiye intelligently and voluntarily waived his rights because he had experience and familiarity with the criminal justice system. Mosby does not suggest prior experience or pleas are sufficient, without more, to establish a knowing and voluntary admission. (See Campbell, supra, 76 Cal.App.4th at p. 310 ["[i]f this experience were sufficient . . . , courts would rarely be required to give Boykin/Tahl admonitions"].)
The People's other arguments are similarly unpersuasive. They contend the record "strongly suggests" Umiye's counsel "advised [him] of his options for how to handle the prior conviction allegations" during a break. They also argue Umiye did not disagree when his counsel said he was aware of his right to trial and then admitted the priors, pointing out that Umiye was "not a person who simply agreed to . . . all terms[.]" First, we decline to speculate that Umiye's counsel informed him about his rights while "counsel confer[red]" or while the trial court was addressing an unrelated matter. (Cf. People v. Christian (2005) 125 Cal.App.4th 688, 698 ["[W]e are not privy to the conversation appellant had with his counsel about the plea offer, only that the conversation took place. . . . [W]e will not presume appellant was informed of his Boykin-Tahl rights in appellant's conversation with his counsel."].) Second, we recognize Umiye apparently agreed to admit the priors, but on this record, we cannot conclude he was aware of his rights and prepared to waive them when he did so. (See Johnson, supra, 15 Cal.App.4th at p. 178.) There simply was no effort to obtain an on-the-record advisement and waiver of Umiye's relevant rights.
As an example, the People noted that, when the court asked if Umiye wanted to waive his right to be present for any requests by the jury for a read back of testimony, Umiye's counsel declined and stated Umiye wanted to be present for such read backs. --------
In sum, because the record does not establish Umiye's voluntary and intelligent admission of the prior convictions, we reverse as to the admissions, and remand for a new adjudication of the allegations and for resentencing. (See People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1421-1422.) As a result, we do not reach Umiye's arguments regarding his mandatory supervision conditions.
DISPOSITION
The admissions are reversed. The matter is remanded to the trial court for a new adjudication of these allegations, either by admission or trial, and for resentencing thereafter. The judgment is otherwise affirmed.
GUERRERO, J. WE CONCUR: McCONNELL, P. J. NARES, J.