PEOPLE v. CROSS

Appellant’s Petition for Review

Cal.July 18, 2013

Je $21215% am IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Court of Appeal No. C070271 V. Sacramento County Superior Court JOSHUA CROSS, Nos. 09F06395, 11F03888 Defendant and Petitioner. APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SACRAMENTO Hon. Greta C.Fall, Judge PETITION FOR REVIEW AFTER THE PARTIALLY PUBLISHED DECISION OF THE COURT OF APPEAL, THIRD APPELLATE DISTRICT, AFFIRMING THE JUDGMENT SUPREME COURT William W. Lee F | LL E D Attorney at Law JUL 18 2013 State Bar No. 233298 2777 Yulupa Avenue, #142 Frank A. McGuire Clerk Santa Rosa, CA 95405 Ph: (415)494-8305 Deputy Fax: (415)223-3479 williamwlee@me.com Attorney for Petitioner and Appellant By appointment of the Court of Appeal under the Central California Appellate Program assisted case system TABLE OF CONTENTS QUESTION PRESENTED.......ecceeceeeseeeseceneceeeseeeeceeseeeseeeeeeceaceseaeeeseetseseaees 1 STATEMENTOF THE CASE wouie.cccccccccceecccssccccccccscecsccecccaucceccasseescescececaues 2 STATEMENTOF THE FACTS.cececsecesssesecesecesececeseeccceuscevsssnsesseees 4 NECESSITY FOR REVIEWuu...ccccseeccccsseeecceccccccecececcecseeececsacessseeecs 7 I. INTRODUCTION 0.ceccccccccccccecsccsscssvssssssseeesceseeeceeeensarsasacaeees 5 Il. ARGUMENToun... eeecececceeceseesecceccosceccsssesecsssesseeccescescescuanerssecsneees 7 A. TRIAL COURT PROCEEDINGS200... cc cc cceeceeccsecesceeeseeves 7 B. THE COURT OF APPEAL'S HOLDINGIN THIS CASEwu... eee eeceeeceecceeeeececccececcecceceeeees 8 C. THE COURT OF APPEAL'S OPINION IS INCONSISTENT WITH THIS COURT'S PRIOR. CASES ON THEISSUE.0... oo. ecececcccccccecesecccccccecevseeesecseeeseeees 9 L. Trt re YurKO oiice ccc ccceccccceseesccecccccccccccccecssecscecnereeereeeees 9 2. Adams and N@WMan.......cccccccccsssseeccecccseeececcceseeseeees 12 D. THE CONFLICTING HOLDING IN PEOPLE v. SHIPPEYuu. c.cccccceccccscsscestsesteessesseeseeenseeenny 13 E. THE COURT SHOULD GRANT REVIEW TO CLARIFY THE LAW OF BOYKIN-TAHL-YURKO ADVISEMENT.........eee 14 CONCLUSION o.ooec ceececesseesseeseecsseseseeessneesseesaeeesaesaaseeeesaeeesaaeoseerateags 15 CERTIFICATE OF LENGTHou...ecccceeccecsecneeneesesereceeesreeseseaesnesassaens 16 ATTACHMENTAooo.ceeeceesesaeseaesneseeeeseseaesseeeaeeeeseaeeeaeaeenes 17 TABLE OF AUTHORITIES Cases Boykin v. Alabama (1969) 395 U.S. 238... .cccsscesccseeseeeseecsseeeeeeeeseeaessseeseesseeseeeeseserees 2,5,6 In re Tah] (1969) 1 Cal.3d 122 weescsscseeseeseeseeecneesseceeseeseeescesesesaeseesneeseenseneeeaes2,5,6 People v. Shippey (1985) 168 CalApp.3d 879... cccscssssessessesecceersecseeseenennenes 5,7,8,13,14 In re Yurko (1974) 10 Cal.3d 857 oo. eeeeesscscsssecesceeeeeesseseeesseseeseseacsecseeeas6,9,10,11,12,13,14 People v. Adams (1993) 6 Cal.4th 570.00... cccsssscsscsecenseeeeseesesseeseeseeesseeeseseeenees6,8,9,12,13 People v. Newman (1999) 21 Cal.4th 413 oo... ce ccescesscesseseeesseceseesesseesenseseesseseeaes 6,8,12,13 People v. Cross (2013) 216 Cal.App.4th 1403 oo.eeeeeeeeeeeeeetereeeeees6,7,8,10,11,12,14 People v. Witcher (1995) 41 Cal.App.4th 223 oo... .ccccsscccssscssesseceeessecseeeesesseeeeneeceeneessneens 6,7 People v. Tardy (2003) 112 Cal.App.4th 783 oo... cecsccecessessecssceeseeeeesensesseesseessesaesaeeaes 11 People v. Robinson (2004) 122 Cal.App.4th 275 .....cccecscccsscsssesseesseceeseecsneessaeeeeseeessseeeaes 11 Statutes Pen. Code Section 273.5. .occeiescssesseeeeescesceceseeseesceseeseeaeessesseesesseesesseeeceeaseaesaesaeeneeseeeeeeseeaes 7 Pen. Code Section 667... cee ceccescesseesseseesccseesceesecceseneceaeesesesessceaeesessesacesseeacseeeeaeseeseeeeaeenees 14 Pen. Code section 667.61... cecescceccseessssceeeseeesseeesseeseeeeeaeeaseeseecaeeecseeseeseenensesseesaeaesseeenees 14 Rules of Court Cal. Rules of Court, rule 8.500(D)(1). 0... cccccccceseesecessecesseceseesssessecseseesseeesssecessteessesensesaes 5 ii IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Court of Appeal Plaintiff and Respondent, No. C070271 V. Sacramento County Superior Court JOSHUA CROSS, Nos. 09F06395, 11F03888 Defendant and Petitioner. PETITION FOR REVIEW AFTER THE PARTIALLY PUBLISHED DECISION OF THE COURT OF APPEAL, THIRD APPELLATE DISTRICT, AFFIRMING THE JUDGMENT. TO THE HONORABLECHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: This petition for review follows the partially published decision of the Court of Appeal, Third Appellate District, filed on June 7, 2013. In the published portion of the opinion, the Court ofAppeal affirmed the judgment. (People v. Cross (2013) 216 Cal.App.4th 1403, 1409 (Cross).) The court held that no Boykin-Tahl advisement was required priorto petitioner's trial counsel stipulating to the existence of a prior conviction within the meaning of Penal Codesection 273.5, subdivision (e), which elevates the upper term sentence for a conviction of cohabitating partner abuse under Penal Code section 273.5, subdivision (a) from 4 years to 5 years in state prison. In the unpublished portion of the opinion, the Court of Appeal ordered thetrial court to calculate and correct petitioner's pre-sentence custodycredits. QUESTION PRESENTED Whethera stipulation to a prior conviction for purposes of the penalty-increasing allegation under Penal Code section 273.5, subdivision (e)' requires Boykin-Tahl advisement and waiverevenifthat allegation is classified as an "alternative sentencing scheme"rather than an "enhancement" or an elementofthe offense. (See Boykin v. Alabama (1969) 395 U.S. 238, 242 [89 S. Ct. 1709, 23 L. Ed. 2d 274]; In re Tahl (1969) 1 Cal.3d 122, 132.) STATEMENT OF THE CASE On July 1, 2011, a complaint was filed in Sacramento County Superior Court case number 11F03888 charging petitioner with the following violations: (1) Count One:infliction of corporal injury against the parentofpetitioner's child within the meaning of Penal Code section 273.5, subdivision (a), whichis a felony; (2) Count Two:first degree robbery within the meaning of Penal Code sections 211 and 212.5, whichis a felony; (3) Count Three: unjustifiable infliction of physical or mental suffering to a child within the meaning of Penal Code section 273a, subdivision (b), whichis a misdemeanor. (1 CT 12-13.) The complaint further alleged that petitioner had suffered a previous conviction under Penal Codesection 273.5, subdivision (a), which enhances the potential sentence for Count One under Penal Codesection 273.5, subdivision (e)(1). (1 CT 13.) On August 3, 2011, petitioner was held to answerto the chargesat a preliminary hearing, and preliminary hearing magistrate ordered the complaint to be deemedto be an ' Hereafter referred to as "section 273.5(e)." 2 information. (1 CT 14.) On November1, 2011, a jury was empanelledto try the case. (1 CT 10.) The court also held probation revocation hearings in Sacramento County Superior Court cases 09F06395 and 09F05116 based on the same evidence presented at the jury trial. (1 RT 5.) Duringthetrial, the counsels for both parties entered into a stipulation that petitioner had been previously convicted under Penal Code section 273.5, subdivision (a). (1 RT 85-86.) There was no advisement or waiverofpetitioner's right on record. (1 RT 85-86.) On November9, 2011, the jury foundpetitioner guilty of Counts One and Three, but was unable to reach a verdict on Count Two. (1 CT 10.) Thetrial court found petitioner in violation of probation. (1 RT 295.) On November 10, 2011, the trial court ordered Count Two dismissed on the prosecution's motion. (1 CT 10.) On December16, 2011, the trial court imposed the following sentence: (1) Upperterm of 4 years for Count One - Penal Code section 273.5, subdivision (a) a) Pursuant to Penal Code section 273.5, subdivision (e)(1), the upper term waselevated by petitioner's prior domestic conviction to 5 years; (2) 6 months in county jail for Count Three - misdemeanorviolation of Penal Code section 273a, subidivision (b) - to be served consecutively upon petitioner's release from prison; (1 CT 11, 167.) STATEMENT OF FACTS The prosecution presented evidencerelating to an incident on May 20, 2011, for which petitioner was charged. The prosecution also presented testimony regarding several prior domestic violence incidents involving petitioner pursuant to Evidence Code section 1109. The defense did not call any additional witnesses. (1 RT 210,) and petitioner elected to exercise his right to not testify. (1 RT 212.) On May20, 2011 at 4:30 or 5:30 in the morning, petitioner went to the apartment of Mya Welch. (1 RT 33-40.) Petitioner and Welch previously dated and have two children together. (1 RT 33-34.) Welch woke up to findpetitioner in her bedroom. (1 RT 38-39.) Petitioner asked for Welch's mobile phone. (1 RT 40.) Welch refused, because she believed petitioner would become angry if he saw text messagesandcalls that Welch's boyfriend had left on her phone. (1 RT 40-41.) Petitioner tried to wrestle the phone away from Welch. (1 RT 41.) While struggling for the phone, petitioner slapped and hit Welch in the face. (1 RT 41-43.) Petitioner choked Welch, then threw her onto the floor. (1 RT 43.) The phone flew out of Welch's hands whenshefell. (1 RT 43.) Petitioner picked up the phone. (1 RT 43.) Petitioner picked up the phone and read through the text messagesandcall log on Welch's phone. (1 RT 43.) He becameangry over the people Welch had been talking and texting with. (1 RT 43.) Petitioner struck Welch again. (1 RT 43.) Petitioner and Welch’s children were in the bedroom during the incident involving the phone. (1 RT 45.) Their son was two yearsold at the time ofthe incident. (1 RT 33.) Their daughter was approximately four months old. (1 RT 33.) Both were sleeping inside the bedroomatthe start of the incident. (1 RT 33.) Their son was awakeandcried during the incident. (1 RT 45.) Welch believed their daughter was up as well. (1 RT 45.) Petitioner then left the bedroom for the kitchen. (1 RT 44.) In the kitchen, petitioner called the male Welch had been texting and challenged him to fight. (1 RT 45.) After getting off the phone, petitioner returned to Welch's bedroom.(1 RT 46.) Petitioner went through Welch's purse and took out approximately $170. (1 RT 46.) Welch asked for her money and phone back. (1 RT 47.) Petitioner initially refused, but later told Welch he would bring her things back to her. (1 RT 47.) Petitionerleft Welch's residence, getting into the rear seat of a car waiting in the parking lot outside. (1 RT 47.) Welch had an older cell phone. (1 RT 48.) She switched her cellular service to the older phone. (1 RT 48.) She called petitioner and again demanded her phone and money back. (1 RT 48-49.) Petitioner refused. (1 RT 49.) Welch received a "bump"to her forehead, scratches, and redness on the inside of herlip during the altercation. (1 RT 49-51.) NECESSITY FOR REVIEW I. INTRODUCTION Review is necessary both to secure uniformity of decision among lower courts and to resolve an important questions of law (Cal. Rules of Court, rule 8.500(b)(1).) The Court of Appeal's holding here conflicts with the Fifth Appellate District's holding in People v. Shippey (1985) 168 Cal.App.3d 879, 888 (Shippey). This disagreement among lower courts implicates an important issue oflaw: whetherit is necessary for a trial court to advise a defendant and obtain a waiverprior to taking an admission to a prior conviction that elevates the penalty. Under Boykin, supra, 395 U.S. 238 and Tahl, supra, 1 Cal.3d 122, whena trial court accepts a guilty plea the record must contain on its face direct evidence that the 5 accused was aware, or made aware,ofhis right to confrontation, to a jury trial, and against self-incrimination. (Boykin, supra, 395 at p.242; Tahl, supra, 1 Cal.3d at p.132.) Furthermore, the court shall not presume a waiver based on a silent record. (Tahl, supra, 1 Cal.3d at p.132.) Inre Yurko (1974) 10 Cal.3d 857 (Yurko), recognized that "[u]ndoubtedly the particular rights waived by an admission ofthetruth of [an] allegation of prior convictions are important." (/d. at p.863.) Such an admission can carry serious " additional penalties and sanctions." (Jbid.) Therefore, “an accused must be advised of(1) specific constitutional protections waived by an admissionofthe truth of an allegation of prior felony convictions, and (2) those penalties and other sanctions imposed as a consequenceofa finding ofthe truth ofthe allegation.” (/d. at p.860.) This process of advisement and waiverapplies as well to stipulations that are “tantamountto a plea of guilty” where conviction is the inevitable result, such as submitting the issue of guilt on a preliminary hearing transcript lacking any defenseto the charges. (People v. Adams (1993) 6 Cal.4th 570, 576 (Adams).) In contrast, advisement and waiver requirements are not applicable to “an evidentiary stipulation which doesnot admit the truth of the allegation itself or every fact necessary to imposition of the additional punishment other than conviction of the underlying offense.” (/d. at p.580; see also (People v. Newman (1999) 21 Cal.4th 413, 417, 422-423 (Newman).) Here, applying this line of cases, the Third Appellate District held that advisement and waiveris unnecessary whenthe prior allegation is pursuant to Penal Code section 273.5, subdivision (e), because such an allegation is not "an element of an offense" or an "enhancement"butis instead an "alternative sentencing scheme." (Cross, supra, 216 Cal.App.4th at pp.1409-1410.) This decision cites the Second Appellate District decision People v. Witcher (1995) 41 Cal.App.4th 223, which held that advisement and waiver was not necessary prior to a stipulation to a prior theft conviction for purposes of Penal Codesection 666.(Id. at p.228-229.) As explained below, the Court ofAppeal's holding here is inconsistent with Yurko and the cases that follow it. Onthe other hand, citing Jn re Yurko the Fifth Appellate District concluded in Shippey, supra, 168 Cal.App.3d 879, that Boykin-Tahl advisementis required for admitting a prior allegation under Penal Code section 666. (/d. at pp.882, 887-888.) This case presents a new legal question. “The issue has not . . . been the subject of any holding under section 273.5(e)(1).” (Cross, supra, 216 Cal.App.4th at p.1409.) Moreover, because the Court of Appeal’s opinion here creates a rule that conflict with Shippey as well Yurko's line of cases, this court should grant review underrule 8.500(b)(1). Il. ARGUMENT A. TRIAL COURT PROCEEDINGS In Count One,petitioner was convicted for violating Penal Code section 273.5, subdivision (a) and was sentenced to the upper term of five years based on a true finding on the prior allegation that he had previously suffered a conviction under the same Penal Code section within the last seven years. (1 RT 298; Pen. Code, § 273.5, subds. (a), (e)(1).) Penal Codesection 273.5, subdivision (e)(1) provides in pertinent part that ,“Any person convicted of violating this section for acts occurring within seven years of a previous conviction under subdivision (a)” is subject to a sentencing triad of two, four, or five years (as opposedto the two, three, or four years otherwise specified in subd.(a).) Duringthetrial, the prosecutor read to the jury the following stipulation: “On January 15th, 2010, the Defendant was convicted of a felony violation of Penal Code Section 273.5, spousal abuse,in relation to the domestic violence incident on August 14th of 2009.” (1 RT 85-86.) Thetrial court corrected the prosecutor that the charge should 7 not be read as “spousal abuse”but rather that of “a person with whom the defendant had a child in common.” (1 RT 86.) Thetrial court otherwise accepted the stipulation. (1 RT 86.) The record does not show petitioner’s trial counsel to have orally agreed to this stipulation, althoughtrial counsel did not objectto it or subsequent references to such a stipulation. (1 RT 85-86.) There is also a written stipulation. (1 CT 138.) Thetrial court instructed the jury, “During the trial you were told that the People and the defense agreedor stipulated to certain facts. This means that they both accept those facts as true. Because there is no dispute about those facts, you must accept them as true.” (1 RT 256.) Thetrial court did not provide any advisementto petitioner regarding his rights or consequencesto the stipulation, and did not obtain any waivers. (1 RT 85-86.) B. THE COURT OF APPEAL'S HOLDINGIN THIS CASE Onappeal, petitioner contendedthat, prior to accepting the stipulation, the trial court should have provided petitioner with Boykin-Tahl advisements and obtained relevant waivers from petitioner. (Cross, supra, 216 Cal.App.4th pp. 1407-1408.) The stipulation to the existence of a prior conviction for Penal Code section 273.5, subdivision (e) purposes was tantamount to an admission that directly resulted in penal consequenceresults. (See Adams, supra, 6 Cal.4th at pp.576, 580 and Newman, supra, The Court ofAppeal held that advisement and waiver were not required for section 273.5, subdivision (e) prior because that allegation is not an “enhancement”but an “alternative sentencing scheme.” (/bid.) The implication being that advisement and waiveris required if a prior allegation is an “enhancement”butnotfor a prior allegation that constitutes an “alternative sentencing scheme,” even if the latter elevates the defendant’s penalty. The Court ofAppeal’s reasoning is inconsistent with this court’s prior cases nor 8 with the Fifth Appellate District’s holding in. Shippey, supra, 168 Cal.App.3d at p.888. C. THE COURT OF APPEAL’S OPINION IS INCONSISTENT WITH THIS COURT’S PRIOR CASES ON THE ISSUE Althoughthis court has not addressed the specific question of whether advisement and waiveris required for admitting or stipulating to a prior allegation under section 273.5(e), this court has developeda line of cases explaining the rationale behind requiring advisement and waiverprior to accepting an admissionorstipulation to prior allegations. l. Inre Yurko In re Yurko “wasthe first case in which this court was called upon to consider the applicability of the Boykin-Tahl requirements to a defendant's plea to an allegation other than one charging commission of a criminal offense.” (Adams, supra, 6 Cal.4th at p.576.) In Yurko, a defendant charged with burglary admitted to three prior felony offenses. (Yurko, supra, 10 Cal.3th at p.860.) That admission led to an adjudication that he was an habitual criminal and to a sentence oflife imprisonment under former Penal Code section 644,rather than to the imposition of sentence for the burglary of which the jury had convicted him. (/bid; see also Adams, supra, 6 Cal.4th at pp.576-577.) This court found, Undoubtedly the particular rights waived by an admission ofthe truth of the allegation of prior convictions are important. Althoughthereis not at stake a question of guilt of a substantive crime, the practical aspects of a finding of prior convictions may well impose upon a defendantadditional penalties and sanctions which may be even moresevere than those imposed upon a finding of guilt without the defendant having suffered the prior convictions. Thusa finding of prior convictions may foreclose the possibility of probation (§ 1203), may extend the term for the basic crimeto life imprisonment(§ 644), and may substantially extend the time served on such a life sentence before the defendant becomeseligible for parole (§§ 9 3046-3048.5). (Yurko, supra, 10 Cal.3d at p.862.) Yurko therefore held “that Boykin and Tahl require, before a court accepts an accused's admission that he has suffered prior felony convictions, express and specific admonitionsas to the constitutional rights waived by an admission. The accused must be told that an admission ofthe truth of an allegation of prior convictions waives, as to the finding that he has indeed suffered such convictions, the same constitutional rights waivedas to a finding of guilt in case of a guilty plea.” (Yurko, supra, 10 Cal.3d at p.863.) In so holding, this court found that what triggers the advisement and waiver requirementis not the specific type of allegations, but whether admitting to the allegation will carry penal consequences for the defendant. “The admission ofthe truth of the allegation of prior convictions has been differentiated from a plea of guilty through a characterization of the former as merely allowing a determination ofa ‘status’ which can subject an accused to increased punishment. [Citations.] Although this may be technically correct, the distinction is meaningless if, as in the case of a plea of guilty, the accused nevertheless will be held to have waived, without proper protections, important rights by such an admission.” (Yurko, supra, Cal.3d at p.862.) Here, in contrast, the Court of Appeal drawsthe line similarly based on a categorical distinction. The court held because section 273.5(e) sets forth an “alternative sentencing scheme”rather than an “enhancement,” there is no need for advisement and waiver. (Cross, supra, 216 Cal.App.4th pp. 1407-1408.) In other words, Boykin-Tahl advisement and waiveris only necessary for a priorallegation if that prior allegation constitutes an “enhancement.” This analysis is inconsistent with Yurko. Yurko held Boykin-Tahl advisements were necessary for admissionsto prior allegations because“the practical aspects of a finding of prior convictionsthe practical aspects of a finding of prior convictions may well impose upon a defendant additional 10 penalties and sanctions which may be even more severe than those imposed upon a finding of guilt without the defendant having suffered the prior convictions.” (Yurko, supra, 10 Cal.3d at p.862.) The section 273.5(e) prior has such a practical effect. By entering into the stipulation, petitioner’s trial counsel petitioner to risk of additional prison time. The “additional penalties” contemplated by the Yurko court included therisk of foreclosing the possibility ofprobation or extending the time before a defendantis eligible for parole. (Yurko, supra, 10 Cal.3d at p.862.) Risking an additional year in prison is consistent with the kind of additional penalties contemplated by the Yurko court. Following Yurko's reasoning, Boykin-Tahli advisement and waiver should be required before trial court accepts an admission undersection 273.5(e). Furthermore, the prior allegation that warranted advisement and waiver in Yurko was not an enhancement. Applying the Court of Appeal's analysis to the facts in Yurko, one would have to conclude that no advisement was necessary. This is inconsistent with Yurko's holding. The Court of Appeal here analogized the 273.5(e) prior to Penal Code section 666 in that neither is an “enhancement.” (Cross, supra, 216 Cal.App.4th at pp.1408-1409.) Thecourt cites People v. Tardy (2003) 112 Cal.App.4th 783 (Tardy) and People v. Robinson (2004) 122 Cal.App.4th 275 (Robinson) as support. (Cross, supra, 216 Cal.App.4th at pp.1408-1409.) Neither Tardy nor Robinson considered the present issue ofBoykin-Tahl advisement and waiver. (Tardy, supra, 112 Cal.App.4th at p.787, fn.2; Robinson, supra, 122 Cal.App.4th at pp.281-282.) Tardy and Robinson addressedissues relating to pleading requirements on a complaint or information. (Tardy, supra, 112 Cal.App.4th at p.787, fn.2; Robinson, supra, 122 Cal.App.4th at pp.281-282.) In this unrelated context, Tardy concluded, "Although section 666 has been referred to as a sentencing enhancementstatute [Citations.] . . . it is not an 'enhancement' 11 becauseit does not add to the base term." (Tardy, supra, 112 Cal.App.4th at p.787, fn. 2.) Tardy cites Rules of Court, rule 4.405(c), which provides that an "enhancement" adds to the base term. (bid.) Under Tardy and the Court of Appeal's opinion here, other punishment-elevating allegations are "alternative sentencing schemes." (bid; Cross, supra, 216 Cal.App.4th at pp.1408-1409.) Underthis definition, former Penal Code section 644, which subjected the defendantto a life sentence in Yurko, would not be an enhancement but an alternative sentencing scheme becauseit replaces rather than addto the base term. (Yurko, supra, 10 Cal.3d at pp.862-863; Adams, supra, 6 Cal.4th at p.573.) The Court of Appeal here held that no advisement and waiveris requiredifthe prior allegation is an alternative sentencing schemerather than an enhancement. (Cross, supra, 216 Cal.App.4that p.1410.) Applying the Court ofAppeal's rule to Yurko's facts would haveyielded results that contradicted Yurko's holding. 2. Adams and Newman The Court of Appeal's holding is likewise inconsistent with this court's established rules in Adams and Newman. Adams and Newmanclarified the requirementfor advisement and waiver, but did not stray from the rationale set forth in Yurko. (See Newman, supra, 21 Cal.4th at pp.418, fn. 4, 422; Adams, supra, 6 Cal.4th at p.573.) In Yurko, the reason to require advisement and waiver wasbecauseofthe penal consequencesthat an admissionto the prior can trigger. (Yurko, supra, 10 Cal.3d at pp.862-863.) In Adams,the court foundthat stipulating. (Adams, supra, 6 Cal.4th at p.577.) In the context of the bail/recognizance enhancementallegation, a stipulation to being on bail, standing alone, does not cover every fact necessary to the imposition of additional punishment. (/d. at p.580.) Rather, the trier of fact must also find the defendant guilty of 12 the underlying offense. (/bid. at p.580.) There was therefore no need for Boykin-Tahl advisement and waiver. Relying on Adams,this court held that a stipulation to felon status in the context of a prosecution for felon in possession of a firearm does nottrigger the need for advisement and waiver. (People v. Newman, supra, 21 Cal.4th at pp.415, 420, 422.) The court reasoned that no penal consequences flowed directly from a simple stipulation to one’s status as a felon and, therefore, the stipulation was not sufficiently similar to an admission of an enhancementallegation or a guilty plea to require constitutional advisements and waivers. (/d. at p. 422.) Both Newman and Adamscited Yurko, and neither departed from Yurko's reasoning. (Adams, supra, 6 Cal.4th at pp.573, 577; Newman, supra, 21 Cal.4th at pp.418, fn. 4, 422.) In both cases, this court's analysis on whether Boykin-Tahl advisement was required focused on whetherthe stipulation has attendant penal consequences. (Adams, supra, 6 Cal.4th at p.577; Newman, supra, p.422.) Neither case set forth reasoning that suggests the Boykin-Tahl advisement and waiver processis required only if an allegation constitutes an "enhancement." The Court of Appeal's opinion here is therefore both novel and a departure from this court's case law. D. ©THE CONFLICTING HOLDING IN PEOPLE v. SHIPPEY In Shippey, supra, 168 Cal.App.3d 879,the Fifth Appellate District concluded that Boykin-Tahl advisement wasrequired for admitting a prior allegation under Penal Code section 666. (/d. at pp.882, 887-888.) Duringhis trial on the charge of committing petty theft under Penal Code section 666, the defendant admitted on direct examination that he was convicted of petty theft in 1982. (/d. at p.883.) Relying on Jn re Yurko (1974) 10 Cal.3d 857, 864, the Court ofAppeal found that Boykin-Tahl advisement and waiver 13 applies to admissionsofprior conviction for Penal Code section 666 purposes. (Shippey, supra, 168 Cal.App.3d at pp.887-888.) The court noted that the rationale behind Yurko wasto ensure that a defendantis awareofhis rights he gives up and the consequences he subjects himself to when admitting a prior allegation. (Shippey, supra, 168 Cal.App.3d at p.888, citing Yurko, supra, 10 Cal.3d at p.862.) "Undoutedly the particular rights waived by an admission of the truth of the allegation of prior convictions are important. Although thereis not at stake a question of guilt of a substantive crime, the practical aspects of a finding of prior convictions may well impose upon a defendant additional penalties and sanctions which may be even moresevere than those imposed upona finding of guilt without the defendant having suffered the prior convictions." (Yurko, supra, 10 Cal.3d at p.863; see also Shippey, supra, 168 Cal.App.3d p.888-889.) The court reasoned that "[p]roof of a prior under section 666 raises a misdemeanor crime punishable by a fine or county jail sentence to a felony punishable by imprisonment. . . [a]dmitting theprior petty theft ultimately resulted in the defendant's sentenceto state prison for three years." (/d. at p.888.) The court "perceive[d] no logical reason why the Yurko rule would not be applicable[.]" (Zbid.) Despite analogizing the Penal Code section 273.5, subdivision (e) prior allegation to Penal Code section 666, the Court of Appeal here nevertheless declined to apply Shippey. (Cross, supra, 216 Cal.App.4th at p.1410.) The court acknowledges that neither Adams nor Newman disapproved Shippey. (Ibid.) If Shippey remains sound law, and Penal Code section 666 and 273.5(e) are analogous for the purposesofthe issue here, then the Court of Appeal's holding in this case contradicts that of Shippey. 14 E. THIS COURT SHOULD GRANT REVIEW TO CLARIFY THE LAW OF BOYKIN-TAHL-YURKO ADVISEMENT The contradiction between Shippey and the Court of Appeal's holding here requires resolution by this court. Furthermore, the Court of Appeal's holding here has far- reaching and serious consequences.If only allegations that add to a base term are "enhancements," then statutes like "Three Strikes Law" (Pen. Code, § 667, subd.(e)) and "One Strike Law" (Pen. Code, § 667.61, subd. (a)) would not be "enhancements." Under the Court of Appeal's holding here, a defendant admitting or stipulating to such prior allegations would not be entitled to Boykin-Tahl advisement despite the severe potential consequences. Yet this runs contrary to this court's rationale, set forth in Yurko, for mandating that the court's shall undergo the advisement and waiverprocess for defendant's admitting to prior allegations that can elevate a defendant's punishment. This is therefore an area of law that requires this court's clarification. CONCLUSION Based on the foregoing reasons, petitioner respectfully requests that this court grant review. Dated: July 17, 2013 Respectfully submitted, ~~ William W. Lee Attorney for Petitioner 15 CERTIFICATE OF LENGTH I, William W. Lee, counsel for JOSHUA CROSS,certify pursuantto the California Rules of Court, that the word count for this documentis 4419 words, excluding the tables, this certificate, and any attachment. This document wasprepared in MICROSOFT WORD 2007 andthis is the word count generated by the program forthis document. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed, at Santa Rosa, CA,on July 17, 2013 ~ William W. Lee Attorney for Petitioner 16 ATTACHMENTA: Opinion in PEOPLE v. CROSS(2013) 216 Cal.App.4th 1403 Court of Appeal Case No. C070271 17 CERTIFIED FOR PARTIAL PUBLICATION” COPY IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) THE PEOPLE, C070271 Plaintiff and Respondent, (Super. Ct. Nos. 09F06395, 11F03888) v. JOSHUA CROSS, FlLED Defendant and Appellant. JUN ~7 2013 Court of Appeal, Third Appallate District Doena O. Faweatt, Clerk BY Deputy APPEAL from ajudgment ofthe Superior Court of Sacramento County, Greta Curtis Fall, Judge. Affirmed with directions. William W, Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, ChiefAssistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent. ‘* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinionis certified for publication with the exception ofpart IT. of the Discussion. I A jury found defendant Joshua Cross guilty of felony infliction of corporal injury on the motherofhis child, and misdemeanorinfliction ofabuse on the child (case No. 11F03888). It was unable to reach a verdict on a charge ofrobbery (which thetrial court dismissed on the prosecutor’s motion). Thejury also sustained an allegation ofa prior conviction in 2010 for inflicting corporal injury on the mother of defendant’s child in 2009. Thetrial court sentenced defendantto a term in state prison for the felony, with a consecutivejail term for the misdemeanor. Thetrial court further found defendant in violation ofthe grantsofprobation in the 2009 incident (case No. 09F06395) andin another 2009 case (case No. 09F05116). It imposed a consecutive state prison term in case No. 09F06395, terminating probation in case No. 09F05116. It calculated conduct and custody credits only with respect to his current (May 2011) offense. On appeal, defendant arguesthat trial counsel’s stipulation that defendant was convicted in 2010 for the 2009 incident ofdomestic violence was “tantamount to an admission ofa prior conviction,” and thus required thetrial court to advise defendant of his fundamentaltrial rights and solicit his waiver ofthem before it could give effect to the stipulation. In the published part of this decision, we concludethe stipulation to the existence ofa prior conviction was not tantamount to admitting all the elements ofan enhancement,rather, the existence ofthe prior conviction was instead a sentencing factor authorizing thetrial court to impose a moresevere alternative sentencing scheme. Asa result, the trial court was not required to advise defendant of his fundamental trial rights and solicit waivers ofthem before givingeffect to the stipulation. We shall therefore affirm the judgmentin case No. 11F03888. Defendant also maintains he was not awardedpresentencecredits that he had accrued in connection with case No. 09F06395.1 1 Although his notice ofappeal includes only the case numberofhis current offense, we deem it to embrace case No. 09F06395 as well, which waspart ofthe judgment from which he was appealing. Onthe other hand, as he does not raise any arguments in connection with case No. 09F05116, we deem him to have abandonedanyappealin that 2 The People concede defendantis entitled to the credits. We shall affirm the sentence in case No. 09F06395, but as we explain in the unpublished part ofthe decision, we must remandfor thetrial court to calculate the conceded credits because the record on appeal is unclear. The circumstances underlying defendant’s present or prior convictions are not relevant to his contentions. We therefore omit any factual summary andproceedto the Discussion. DISCUSSION I. Advisements and Waivers Were Not Necessary to Effect Stipulation Beforetrial, the prosecutor successfully moved to admit defendant’s prior acts of domestic violence againstthe victim, including the August 2009 incidentthat resulted in his conviction in case No. 09F06395. Attrial, the prosecutor submitted a stipulation with the defense, which recited that defendant had been convicted in January 2010 for an incident of domestic violence in August 2009 with the same victim as the current offense. Thecourt later instructed the jury that it must accept the facts in a stipulation as true, and that the People had the burden ofproving prior conviction for domestic violence beyond a reasonable doubt(but reminding the jury that the fact ofthe prior conviction had been the subjectofa stipulation). Defendant argues on appealthat before accepting thestipulation,the trial court should have advised him ofhis fundamentaltrial rights and solicited his waiver ofthem. Because courts will not presumeona silent record that a defendant pleading guilty—an act that constitutes a conviction ofitself—knowingly andintelligently waived the right to a jury, the right of confrontation, and the right against compulsory self- case. (Conservatorship ofBen C. (2007) 40 Cal.4th 529, 544, fh. 8; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 732, p. 798 & § 739, p. 806.) 3 incrimination,a trial court in accepting a guilty plea must expressly advise the defendant of these rights and solicit a waiver ofthem on the record. (Jn re Tahi (1969)1 Cal.3d 122, 132-133, applying Boykin v. Alabama (1969)395 U.S. 238, 242 [23 L.Ed.2d 274].) This process of advisement and waiver applies as well in circumstances “tantamountto a plea ofguilty” where conviction is the inevitable result, such as submitting the issue of guilt on a preliminary hearing transcript lacking any defense to the charges. (People v. Adams(1993) 6 Cal.4th 570, 576 (Adams).) This rule applies to both substantive offenses and enhancements. (/d. at pp. 576-577.) However, a defendant’s admission of “evidentiary facts” that do not embrace every elementofan offense or an enhancement, — and which therefore leaves something “prerequisite to imposition ofpunishment,”is not subject to the need for advisements and waivers. (Adams, at pp. 577-578, 581.) To understand defendant’s argumentthat advisements and waivers were necessary in the present context, we quickly explain a pair of Supreme Court decisions (People v. Newman (1999) 21 Cal.4th 413 (Newman) and Adams, supra, 6 Cal.4th at p. 580) and People v. Little (2004) 115 Cal.App.4th 766 (Little), which distinguished the Supreme Court decisions. Regarding the enhancement for committing secondary offenses while onbail for a primary offense, Adams concludeda stipulation to the fact ofbeing on bail does not admit all the elements ofthe enhancement, because conviction ofthe primary offenseis also an element ofthe enhancement (Adams, supra, 6 Cal.4th at pp. 580, 582), in contrast with the mere “prerequisite” of a conviction for the secondary offense to which the enhancement was attached (id. at p. 580, fn. 6). Returning to the issue in the context of a stipulation to felon status in a prosecution for unlawful possession of a firearm, Newman 2 The merepossibility ofjury nullification despite admissionofall facts necessary for a conviction or finding is an insufficient prerequisite to conviction to obviate the need for advisements and waivers. (Adams, supra, 6 Cal.4th at p. 580, fn. 7.) 4 concluded prior Supreme Court dicta regarding the need for advisements and waivers before accepting stipulations to felon status were no longer viable because this admitted only one ofthe elements ofthe offense. (Newman, supra, 21 Cal.4th at pp. 417, 422-423 & fn. 6.) In Little, the defendant stipulated that he was underthe influence ofa controlled substancein violation ofHealth and Safety Code section 11550. (Little, supra, 115 Cal.App.4th at p. 772.) Little rejected the People’s argumentthat this stipulation did not embrace the mensrea ofthe offense (and thus did not require the process of | advisement and waiver), concluding that the stipulation was not merely to being under the influence, but being underthe influence within the meaning ofthe statute and thus was a complete admission of guilt. (/d. at p. 775.) It then held that a stipulationto all of the elements ofan offense must include advisements and waivers to be effective(id. at pp. 776-778), explaining this was in fact the necessary implication ofAdams and Newton both focusing on whether the stipulations at issue were tantamountto a guilty plea. Penal Code section 273.5, subdivision (e)(1) (hereafter § 273.5(e)(1))> provides in pertinent part that “Any person convicted of violating this section for acts occurring within seven years ofa previous conviction under subdivision (a)” is subject to a sentencing triad oftwo, four, or five years (as opposedto the two,three, or four years otherwise specified in subdivision (a) of the statute). Based on the principles we have just outlined, defendant therefore claims that his stipulation admitted the only element of what hetermsis a recidivist “enhancement”ofhis current offense, because conviction of the underlying present offense is a mere prerequisite under Adams. The People, other than adverting to the possibility of nullification (a point that Adamsrejected, as we noted) and attempting to argue defendant somehowretained his fundamentalconstitutional rights with respect to the fact ofhis prior conviction for domestic violence, do not 3 Undesignatedstatutory references are to the Penal Code. 5 identify any elementofthis “enhancement”that the stipulation did not admit. They also suggest (at length) that Little was wrongly decided and we shouldnot follow it. Based on analogous precedent, which weaskedthe parties to address in supplementalbriefing, we conclude section 273.5(e)(1) is not an enhancementbutis simply a sentencing factor authorizing the trial court to impose an alternate sentencing scheme, and therefore the principles ofAdams, Newman,andLittle do not have any application to defendant’s stipulation. Section 666 givesa trial court discretion to treat a conviction for petty theft as a felony upon proofthat a defendanthas prior convictions for petty theft or other theft- related offenses that resulted in imprisonment. People v. Witcher (1995) 41 Cal.App.4th 223 (Witcher), cited with approval in Newman,supra, 21 Cal.4th at page 423, involved a defendant’s stipulation to the existence ofprevious theft-related convictions resulting in imprisonmentin order to prevent the jury from receiving evidence about them attrial. (Witcher, supra, 41 Cal.App.4th. at pp. 226, 228-229.) Based on precedent that the recidivist factor in section 666 was not an element of any offense and thus properly subject to a stipulation to keep the fact out ofevidence, Witcher concluded the requirement ofadvisements and waivers (that we have described above) did not apply to such a stipulation, particularly where the stipulation had resulted in a benefit to the defendant of excluding otherwise admissible evidence about his prior offenses and an offsetting detrimentto the prosecution ofdenying it the opportunity ofproving the prior offenses to the jury. (Witcher, at pp. 233-234.) People v. Robinson (2004) 122 Cal.App.4th 275 reiterated this theme. It held that not only did section 666 not establish a substantive offense, it also did ot establish an enhancement;rather,it established an alternate sentencing scheme with an elevated punishment forrecidivist thieves. (Robinson, at p. 281.) As a result, an information can be amendedto allege the applicability ofsection 666 even if the prosecution had not introduced evidenceofthe prior convictions at the preliminary hearing. (Robinson, supra, 122 Cal.App.4th at pp. 281-282.) People v. Murphy (2001) 25 Cal.4th 136, 155, in drawing an analogy to section 666 in the context ofsection 654, also unequivocally held that section 666 “does not establish an enhancement, but establishes an alternate and elevated penalty.” (Accord, People v. Tardy (2003) 112 Cal.App.4th 783, 787, fn. 2 (Tardy) [holding as a result the defendant could be punished under section 666 evenifstatute notitself alleged in the information]; cf. Robert L. v. Superior Court (2003) 30 Cal.4th 894, 899 [§ 186.22, subd. (d) is not an enhancement“becauseit does not add an additional term of imprisonmentto the base term” andis instead an alternate sentence].) The issue has not, as far as we can determine, been the subject of any holding under section 273.5(e)(1).4 However, the nature ofsection 273.5(e)(1)’s provision for an alternate sentencing schemewith elevated punishment for repeat offenders convicted of domestic violence convincesus that the authority decided under section 666 is properly analogous. In defendant’s supplemental response,hefirst attempts to distinguish Witcher (and section 666) on the groundthat section 666’s alternative sentencing scheme requires proofofboth a conviction and a term of incarceration. This simply begs the question: If neither section 666 nor section 273.5(e)(1) is an offense or an enhancement, then it does not matter whether a stipulation admits fewer than all ofthe criteria for the imposition of the alternative sentencing scheme. Similarly, that his stipulation to a prior conviction has “penal consequences”ignores the actual distinction drawn in the case between admitting 4 Interpreting an ambiguousrecordin the course of concluding thatthe trial court imposed an unauthorized sentence, People v. Price (2004) 120 Cal.App.4th 224, 242, described section 273.5(e)(1) as an “offense” that “includefes] the element ofa prior conviction” (italics omitted). As this was dicta without any thorough analysis ofthe proposition announced or compelling logic in its support, we do notfind it persuasive. (People v. Smith (2002) 95 Cal.App.4th 283, 300.) 7 a prior conviction for purposes of an alternative sentencing scheme andfor the enhancementin section 667. (Witcher, supra, 41 Cal.App.4th at p. 234.) It is true that, unlike in Witcher, defendant’s stipulation did not result in the benefit of keeping the facts ofthe prior conviction out ofevidence. But “benefit” does not play anypart in the | analysis ofAdams, Newman, and Little, and thus its apparent absencein the present case is irrelevant for our present purposes. By the same token, the fact that Witcher received some advisements does not play any part in the holding (because the opinion nevertheless found these to be manifestly inadequate (Witcher, supra, 41 Cal.App.4th at pp. 232-233)) and thus the complete absence of advisements in the present case is irrelevant. Finally, Witcher does not in any sense “suggest[]” that express advisements ofpenal consequences are required, since the opinion found sufficient notice ofthese consequences fromthe inclusion ofa reference to section 666 and the facts ofprior convictions in the allegations of the information (Witcher, at pp. 226, 234), as is true here with respect to section 273.5 and the prior conviction. Defendant next argues weshould follow the reasoning ofthe Fifth Appellate District in People v, Shippey (1985) 168 Cal.App.3d 879, which required advisements and waivers before a defendant could be allowed to testify to the existence ofa prior conviction for petty theft. (/d. at pp. 888-889.) However, Shippey did not consider the distinction at issue here between an alternative sentencing scheme and an enhancement. It simply cited to precedent that involved the admission ofa prior conviction for purpose of an enhancement and concluded, “This reasoning appears equally applicable to the instant case.” (/d. at p. 888.) It therefore does not have any significance to us that neither Adams nor Newman disapproved Shippey (as defendant points out). We recognize, as defendant argues, that the issue in Tardy arose in a different context than inthe present case. However,it was necessary to Tardy’s holding to conclude that section 666 did not create a substantive offense of “petty theft with a prior” but wasinstead a sentencing factor authorizing the imposition of an alternative sentence (and therefore only the prior theft-related convictions needed to be alleged) because otherwise thefailure to allege section 666 in the information would have precluded punishmentpursuantto it. (Tardy, supra, 112 Cal.App.4th at pp. 787-788 & fn. 2.) Tardy thus properly stands for that proposition (as does Robinsonfor the same reason). Asfor the statement in Robinson that section 666 “operates in the same manner”as recidivist enhancements, this again does not “suggest[]” that the need for advisements and waivers should apply, as defendant claims. Merely becausean alternative sentencing schemehas the same effect as an enhancement does not mean it must be treated the same way, and Robinsonin fact did nottreat section 666 as if it were an enhancement(for which evidence mustbe introducedat a preliminary hearing in order to allow amendment of an information to includeit). Wetherefore concludea stipulation to a prior conviction for domestic violence for purposesofsection 273.5(e)(1) does not require a trial court to engage in the advisement and waiver process, as defendantasserts. Having rejected the underlying premise ofhis argument, we do notfind anyerror. If. Presentence Custody Credits* Defendant entered his plea ofno contest in case No. 09F06395 in December 2009; the trial court granted probation in January 2010. In March 2011, the trial court found that defendant had violated probation based on an incident of domestic violence the previous month;it reinstated defendant on probation, conditioned on a 60-day jail term. Againstthe jail term,the trial court credited defendant with 25 days of custody he had served in connection with the August 2009 incident and 24 days of conduct credit. As * See footnote, ante, page1. noted above, thetrial court in sentencing defendantto state prison did not calculate any presentence credits for case No. 09F06395. Defendant maintains he is entitled to have the 25 days of custody credit and 24 days of conduct credit that the trial court identified in March 2011 credited against his consecutive term for case No. 09F06395. The People concede the issue. While we agree in theory, the present record does not allow useither to accept the 49 days to which the parties have stipulated or to determine the correct amount of custody credit, so we must remand for the trial court to make the proper calculation. In the first place, the record does not identify the dates of defendant’s custody. If it occurred in 2009 (close in time to theincident), he would have accrued conductcredits at the lower rate oftwo days for every four-day period of custody. (Former § 4019, subds. (b) & (c) [see Stats. 1982, ch. 1234, § 7, p. 4553]; People v. Brown (2012) 54 Cal.4th 314, 318, 322 [regardless oftime ofsentencing, conduct credits accrueat rate in effect at time ofcustody].) If it occurred after January 25, 2010, but before September 28, 2010, defendant would have accrued conduct credit at the rate ofone day for every two-day period, as the trial court apparently calculated. (Former § 4019, subds. (b)(1) & (c)C1) [see Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50].) And ifit occurred between September 28, 2010, and the March 2011 hearing, he would have accrued conduct credit at the rateofone dayfor every day ofcustody. (Former § 2933, subd. (e)(1) [see Stats. 2010, ch. 426, § 1].) We cannot resolve this question on appeal. In addition, a defendant is ordinarily entitled to credit against a subordinate term resulting from a probation violation for any period ofcustody imposed as a condition of that probation. (People v. Riolo (1983) 33 Cal.3d 223, 226, 228-229; Peoplev. Cooksey (2002) 95 Cal.App.4th 1407, 1414.) It would appear from the record that defendant was supposed to be in custody for an additional 11 days before the presentMay 2011 incident as a condition ofreinstatement on probation (after his accruedcredits were deducted from 10 the 60-dayjail term). He would thus appearto be entitled to an additional 11 days of custody credit with conductcredit at a rate again of one day for every one day of custody (former § 2933, subd. (e)(1) [see Stats. 2010, ch. 426, § 1]), unless there is some fact not disclosed in the record for denying him this credit for the ordered 11 days of custody. Given the uncertainties in the record and the unexplained omission ofthe other 11 days of custody from the calculation ofthe parties, we cannot give defendant the remedy he requests. The better course of action is to remand the matterto the trial court for a proper determination ofthe facts that are relevant to the calculation ofthe presentence credits to which defendantis entitled for his subordinate term in case No. 09F06395. [END OF NONPUB.PT.IL] DISPOSITION The judgmentin case No. 11F03888is affirmed. The sentenceis affirmed and the matter is remanded in case No. 09F06395 for a calculation ofthe proper amount of custody and conductcredits. Thetrial court shall thereafter prepare an amendedabstract ofjudgment and forwarda certified copy to the California Department of Corrections and Rehabilitation. (CERTIFIED FOR PARTIAL PUBLICATION) | BUTZ , Acting P.J. We concur: MAURO , J. HOCH , J 11 PEOPLEv. JOSHUA CROSS Court of Appeal No. C070271 DECLARATION OF SERVICE I, the undersigned, declare as follows: Iam a citizen of the United States, over the age of 18 years and not a party within the action; my business address is 2777 Yulupa Avenue, #142, Santa Rosa, CA 95405. On Obs | / , AO{ a , L served the attached PETITION FOR REVIEW by placing a true copy thereof in an envelope addressed to the person(s) named belowat the address(es) shown,and by sealing and depositing said envelope in the United States Mail at Santa Rosa, California, with postage thereon fully prepaid. There is delivery service by United States mail at each of the places so addressed, or there is regular communication between the place of mailing and each ofthe places so addressed. Office of the Attorney General Sacramento County Superior Court P.O. Box 944255 720 9th Street Sacramento, CA 94244-2550 Sacramento, CA 95814 Central Calif. Appellate Program Sacramento County District Attorney 2407 J Street 901 G Street Suite 301 Sacramento, CA 95814 Sacramento, CA 95816-4736 Joshua Cross California Court of Appeal CDC# AK5675 Third Appellate District Folsom State Prison 621 Capitol Mall, 10 Flr. P.O. Box 715071 Sacramento, CA 95814 Represa, CA 95671 I declare under penalty of perjury underthe laws ofthe State of California that the foregoing is true and correct. Executed on Ao} 3, at Santa Rosa, California. WILLIAM W.LEE DECLARANT