P. v. Coronado
Filed 5/23/06 P. v. Coronado CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO JORGE CORONADO, Defendant and Appellant. | H028110 (Santa Clara County Super.Ct.No. BB257896) |
Defendant Antonio Coronado appeals from a judgment of conviction of first degree burglary (Pen. Code, §§ 459, 460, subd. (a))[1] (count one), two counts of threatening a witness (§ 140) (counts two and three), two counts of making criminal threats (§ 422) (counts five and six), and receiving stolen property (§ 496, subd. (a) (count 10). The case was submitted for a court trial based upon most of the preliminary hearing transcript and limited trial testimony. The remaining five counts of an 11-count information were dismissed in the interests of justice or for insufficiency of the evidence at the behest of the prosecutor. The court found true a prior serious felony conviction allegation (§ 667, subd. (a)) and a strike allegation (§ 667, subds. (b)-(i); 1170.12).
This appeal was originally filed in accordance with procedures outlined in People v. Wende (1979) 25 Cal.3d 436 and appointed appellate counsel requested that this court conduct an independent review of the record. After reviewing the record, we requested supplemental briefing. Defendant now asserts that the trial court committed Bunnell error (Bunnell v. Superior Court (1975) 13 Cal.3d 592) by failing to advise him of his right against self-incrimination and the direct consequences of conviction in accepting defendant's partial submission on the preliminary hearing transcript and by failing to obtain separate express, personal waivers of defendant's right to confront each law enforcement officer whose prior testimony was considered by the trial court. He also contends that the court erred by failing to stay punishment on count two pursuant to section 654.
We modify the judgment to stay the sentence on count two pursuant to section 654. As modified, we affirm the judgment.
A. Procedural History
An information filed on October 29, 2002 charged defendant with 11 offenses, all allegedly occurring on or about a day during a three-day period in June 2002. The information also alleged a prior serious felony conviction (§ 667, subd.(a)) and a prior violent or serious felony conviction under three strikes law (§ 667, subds. (b)-(i)), both predicated upon a first degree burglary conviction. Count 10 alleged that, on or about June 11, 2002, defendant bought and received and concealed and withheld stolen property, a gate opener, a check, and a credit card, from the owner in violation of section 496, subdivision (a). Count three alleged that, on or about June 12, 2002, defendant threatened force against Alma Saldivar, because she had provided assistance or information to a law enforcement officer, in violation of section 140. Count five alleged that, on or about June 12, 2002 defendant made criminal threats against Alma Saldivar in violation of section 422. Count one alleged that, on or about June 13, 2002, defendant committed first degree burglary (§§ 459, 460, subd. (a)) when he entered 2235 California Street, number 152, in Mountain View with the intent to commit a violation of section 140. Count two alleged that, on or about June 13, 2002, defendant committed a violation of section 140 when he threatened to use force and violence upon Alma Saldivar because she had provided assistance and information to a law enforcement officer. Count six alleged that, on or about June 13, 2002, defendant made criminal threats against Alma Saldivar in violation of section 422.
On April 20, 2004, defendant waived his right to a jury trial as to each count charged in the information and as to both sentencing allegations (§§ 667, subd. (a); 667, subds. (b)-(i); 1170.12).
On July 14, 2004, defense counsel indicated that defendant had agreed to submit the case based upon " the preliminary hearing transcript" supplemented by " his testimony and testimony of whoever the People may be calling." The court stated: " Mr. Coronado, this is going to be a court trial, as you've already indicated that you were agreeable to. But what will be different about this court trial . . . from ordinary court trials is because of what your attorney has just told me, that you will not and she will not and the DA will not be putting on live witnesses other than yourself and perhaps a few police officers . . . ." The court explained, " So, Mr. Coronado, there are several witnesses I will not be hearing from, live and in person, but I will be considering their testimony. [¶] Do you understand that?" Defendant replied, " Yes." The court then asked defendant, " And do you understand that what you are doing by agreeing to that procedure is giving up your right to have those witnesses in court testify in person and through your attorney to cross-examine those witnesses? . . . So Mr. Okonkwo [the prosecutor] is going to say who those witnesses are, so you know particularly." Mr. Okonkwo named Carmen Carpio, Alma Saldivar, and Gabriela Lozada. Mr. Okonkwo also mentioned: " There was also some Prop. 115 testimony regarding the property crime victims. So, obviously, those people will also not be testifying at the trial." [2] The court inquired, " That wasn't eyewitness type testimony, though?" Mr. Okonkwo replied, " That's correct." The court stated, " That was just, 'I own the property and this is mine' kind of testimony? . . . [¶] All right. So I think we have made a full disclosure at this point. [¶] Did you understand everything I've explained to you?" Defendant replied, " Yes, ma'am."
The court then proceeded to obtain defendant's waiver of the right of confrontation. The court asked: " [A]re you willing to give up your right to confront and cross-examine those particular witnesses who were referenced?" Defendant answered, " Yes, ma'am." The court continued, " And in that case, are you doing that of your own free will?" Defendant again answered, " Yes, ma'am." The court inquired, " Has anyone threatened you in order to get you to give up that right?" Defendant replied, No, ma'am." The court inquired, " Has anyone promised you anything in order to give up that right?" Defendant answered, " No, ma'am." The court asked, " And are you currently under the influence of any drug, alcohol, or medication at this time?" Defendant replied, " No, ma'am." The court then inquired, " Do you have any questions about giving up your right to confront and cross-examine the witnesses Mr. Okonkwo mentioned?" Defendant replied, " No." The court stated: " You have the right to confront and cross-examine witnesses who were listed by Mr. Okonkwo here in open court. Do you understand and give up that right?" Defendant answered, " Yes, ma'am." The court then stated that it would " proceed on a partial transcript and partial live witnesses as agreed to" and allowed Mr. Okonkwo to conduct voir dire.
Mr. Okonkwo inquired: " Mr. Coronado, also you heard at the preliminary hearing on October 16th, 17th, and 22nd of 2002, you heard statements made by Parampjeet Singh, Anil Misra and Ileana Jimenez, testimony given by officers but that was regarding statements those people made regarding stolen property. [¶] Do you also understand and give up your right to confront and cross-examine those individuals?" Defense counsel then interjected: " I'm sorry. I thought--it was my understanding based on our conversation yesterday that some of those charges as it relates to some of the victims were going to be dismissed." Mr. Okonkwo replied, " That's correct. But I wanted to get the waiver now so we don't have to backtrack." Mr. Okonkwo eventually clarified that the prosecution was only going forward on counts one, two, three, five, six, seven and 10.
Mr. Okonkwo proceeded to ask defendant, " Mr. Coronado, do you understand that Ms. Jimenez will not be coming in to testify at the . . . court trial?" Defendant replied, " Yes." Mr. Okonkwo continued, " And do you understand that you would have the right to confront and cross-examine her regarding the criminal charges against you, particularly in Count 10. Do you understand that?" Defendant stated, " Yes." Mr. Okonkwo asked, " And do you give up that right?" Defendant replied, " Yes."
Before the formal trial commenced, Mr. Okonkwo indicated that he had anticipated that the court would consider the entire preliminary hearing transcript. He wanted to ensure that Mr. Coronado had understood and given up his right to confront each witness. Defense counsel indicated that he had a different understanding, namely that " the Court need not read the portions of the transcript related to Counts 4, 8, 9 and 11, because those matters were being dismissed." After further discussion, Mr. Okonkwo indicated that both counts seven and eight were being dismissed because the victim, Anil Misra, was out of state.
Eventually, after an extended discussion, the court stated that it was going to read the entire preliminary hearing transcript except for the testimony of a detective on pages 128 to 138. Mr. Okonkwo indicated that he was satisfied with that resolution. Defense counsel complained that she " thought the Court wasn't going to read the information about Mr. Singh." The court told defense counsel, " I don't know where that is and you didn't know either, so if you can find it, then we can have that be an exclusion as well, which is great for me because it's less that I have to read." Defense counsel did not subsequently on the record identify any further portion of the transcript for exclusion or interpose any objection to the court's consideration of the entire preliminary hearing transcript with the exception of pages 128-138.
After trial, prosecutor Okonkwo asked the court to amend the information to add Gabriela Lozada as victim in count three. Defense counsel indicated that she had no objection and the court allowed the amendment.
After finding defendant guilty on counts one, two, three, five, six and 10 and finding the sentencing allegations (§§ 667, subd. (a), 667, subds. (b)-(i), 1170.12) to be true, the court sentenced defendant in this case in conjunction with resentencing in case number CC252157 to a total term of 19 years in state prison. The court imposed a total prison term of 13 years and eight months for the convictions in this case alone. The sentence included a four-year term on count one (first degree burglary) (§§ 461, 667, subds. (b)-(i), 1170.12) and a concurrent four-year term on count two (threatening a witness) (§§ 140; 667, subds. (b)-(i); 1170.12). The court stayed its sentence on count six (making criminal threats) (§ 422) pursuant to section 654.
B. Evidence
At the preliminary hearing, Carmen Carpio testified that around June 10, 2002 property was stolen from her van, which was parked in the carport of her apartment complex at 2235 California Street in Mountain View. She discovered the theft between 7:00 and 8:00 in the morning when she went to the car to get her wallet. She called police to report the theft. At some point, Carpio saw someone by the dumpsters going through her things. That individual was identified in court as defendant. He came and went from the dumpster area a number of times over the course of the day. Carpio called the police a number of times as well. At some point that day, she reported to police that she had seen two Hispanics in the dumpster area.
At the preliminary hearing, Mountain View Police Officer Ruben Gonzalez testified that, in response to an auto burglary call, he arrived at 2235 California Street at 8:55 a.m. on June 11, 2002 and contacted Carpio. Carpio indicated that someone in the dumpster area might have her property. Upon searching that area, he found a backpack, a purse, a checkbook register, a name tag, a passport in Carpio's name, and a State of California benefits ID card in Carpio's name. Defendant was not there. Carpio identified certain items and indicated they had been taken from her vehicle.
Officer Gonzalez further testified that he found other items in the backpack retrieved from the dumpster area and he ultimately traced them to the owner, Ileana Jimenez. She told him that the items had last been seen in her vehicle at about 11:30 p.m. on June 10, 2002 and discovered missing the next morning. Her vehicle had been parked in the 2300 block of California Street in a parking lot across the street from the apartment complex and about a block and a half from the dumpsters.
Officer Gonzalez also reported his phone interview with another auto burglary victim, Paranjeet Singh. Singh had told him that on June 13, 2002 property had been stolen from his car, which had been parked at 2235 California Street. The last time he had seen his vehicle before it was broken into was June 12, 2002 at about 10:30 p.m. The stolen items included his car stereo, CDs, a portable Walkman, sunglasses, and miscellaneous receipts.
At the preliminary hearing, Agent Ken Leal testified that at 6:42 p.m. on June 11, 2002, he went out to 2235 California Avenue in Mountain View in regard to a report of an individual possibly possessing stolen property from an auto burglary. He contacted the victim, Carmen Carpio. She told him that this individual had her gate or garage door opener as well as other property removed from her purse. No suspect was found at that time. About 55 minutes later, Agent Leal received a dispatch that the suspect was back at the apartment complex. He returned to the location and was directed by Carpio and others to the dumpster area.
Defendant was located sitting on a chair in the apartment complex's dumpster area. He had an electronic gate or garage door opener on his belt. Defendant initially told Agent Leal that he had found the opener but, after further questioning, he said it belonged to one of his friends. A blank check printed with Carpio's name was found on the chair when defendant stood up. A Sears credit card in Carpio's name was found in the right rear pocket of defendant's pants.
Agent Leal testified that he showed the three items to Carpio, who confirmed that the opener was one stolen out of her vehicle and the Sears card was taken out of her purse which had been in the vehicle. Carpio indicated to Agent Leal that defendant did not have her permission to possess the check. Defendant was placed under arrest.
Agent Leal further testified that during an inventory search of defendant at the police station, an AAA card in the name of Carpio's husband was located in defendant's right front pants pocket. After defendant received a Miranda warning and indicated a willingness to talk, defendant told police that he had found the Sears credit card and Carpio's check.
At the preliminary hearing, Gabriela Lozada testified that in June 2002 she was living in apartment number 194 at 2235 California Street. Sometime in June, outside of her apartment, she ran into Carpio and learned that some of Carpio's things had been stolen from Carpio's car. When Carpio described the thief, Lozada told Carpio that she thought it was defendant. She gave defendant's name and " the little information that [she] knew of him." Lozada testified that Carpio, Saldivar, and she were present when the police arrived and made contact with defendant.
Lozada testified that, a day or two after Carpio's property was taken, defendant came to the back patio of her apartment and tried to come in. Saldivar, who was there as well, " ran further inside the house." Defendant " got a bit violent" and " started yelling that he wanted to come inside the apartment . . . ." He said she " was going to pay for having given that information." Lozada stated that she was " [a] bit frightened" because she was afraid that he might try to beat her. Another renter, Roberto Mora, stopped defendant from going in by telling him to calm down.
At the preliminary hearing, Alma Saldivar testified that she had known defendant for about a month before the incidents. Saldivar acknowledged that prior to Caprio's car being broken into, defendant and she had a falling out over money. Defendant claimed she owed him for a cell phone which belonged to her but was in defendant's name. She indicated that she was going to pay him but no bills had yet been received since she had the phone for only a month at that time.
Saldivar further testified that, in the evening after she heard someone had stolen Carpio's property, Saldivar called the police to tell them that she had seen defendant. After officers arrived, she and others helped look for defendant around the apartment complex. She saw police arrest him by the dumpsters.
Saldivar testified that after defendant's arrest, she received a collect telephone call from defendant in jail. Instead of saying his name at the appropriate point in the collect call, defendant threatened her, saying that she was going to pay for calling the police and he was going to kill her. She felt afraid.
The next day, Saldivar saw defendant when he came to the back patio of an apartment. Defendant asked for Alejandra, who did not live there, cursed at Saldivar, and told Saldivar that she was going to be sorry. Saldivar went inside and closed the door. They did not discuss the cell phone that day.
The last time Saldivar saw defendant was the following morning at Alejandra's apartment, where Saldivar had been sleeping on the floor. At about 5:30 a.m., defendant angrily shook Saldivar awake. He told Saldivar that he was going to beat her up because she had called the police on him. She was afraid. Saldivar pushed defendant off, called for Alejandra's husband who was sleeping in the bedroom, and told defendant that she was going to call the police. Defendant took off. Saldivar called the police.
At the preliminary hearing, Mountain View Police Officer Tony Vieyra testified that he went out to 2235 California Street and spoke with both Saldivar and Lozada on June 12, 2002. Saldivar reported to him that she had received a phone call from defendant threatening that he would pay her back for calling the police on him and she was scared and feared for her safety. She told the officer that she had known defendant for a month and he had helped her get a cell phone.
Lozada separately told Officer Vieyra that defendant had gone to the rear patio of her residence and yelled at Saldivar and her. Lozada informed Officer Vieyra that defendant threatened that " they needed to watch their backs, that he would get even with them and that he would break into their houses at night." Lozada indicated she was scared and feared for her family's and her own safety.
Officer Vieyra also contacted Roberto Mora on June 12 and learned that Mora had found defendant " outside the patio area" earlier in the day. According to Mora, they spoke about money defendant owed him for a car, which Mora had sold to defendant. They walked away from the apartment and defendant left when the police arrived.
Officer Vieyra responded to call regarding a residential burglary at apartment 152 at 2235 California Street shortly after 5:42 a.m. on June 13. He again spoke with Saldivar. She reported that defendant had come, uninvited, into the apartment, where she was sleeping on the floor. Saldivar reported that defendant had shaken her and told her that she owned him money for a cell phone and that he was going to beat her because she had called the police on him. She had told the officer that she had run to Diego's room. Gerrardo Diego Rosas, who was also interviewed at the apartment, did not see or hear anything. Officer Vieyra did not find any indication of a forced entry. After defendant was apprehended, the officer took Saldivar for an in-field identification and she confirmed that defendant was the person who had shaken and threatened her.
Officer Vieyra learned from other officers that defendant was carrying a bag over his right shoulder at the time he was first sighted on the morning of June 13, 2002 and the bag was recovered from the location where defendant was arrested. Handcuffs were also recovered from the location where defendant was arrested.
After receiving his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602]) from Officer Vieyra, defendant indicated he had telephoned Saldivar regarding payment of money she owed him for a phone. Defendant told the officer that Saldivar had invited him over on June 12 and on June 13. He explained that he went to Saldivar's apartment on June 13 to meet her and get his money. Defendant used derogatory language in reference to Saldivar, calling her a " crazy bitch" and saying he would get even with her, and " payback is a bitch." Defendant told Officer Vieyra that he believed Saldivar had called the police on him.
At the preliminary hearing, Mountain View Police Officer Sean Thompson testified that at 5:42 a.m. on June 13 he responded to the area of 2235 California Street. He contacted the suspect on El Camino Real, about a mile from the crime scene. Defendant was already under arrest and a number of other officers were there. Defendant was very angry and belligerent. He threatened to kill the officers. The items found in defendant's bag included, among other things, two checks in the name of Anil Misra made out to defendant in the amounts of $5,000 and $10,000, sunglasses, some receipts, CDs, a portable CD player, a Sony microcassette recorder, a car stereo, and a stereo faceplate. Paranjeet Singh subsequently identified sunglasses, a receipt, Indian Music CDs, a portable CD player, a Sony microcassette recorder, and a car stereo and faceplate as belonging to him.
At trial, the prosecution again called Officer Tony Vieyra. He testified regarding four exhibits, a diagram of the apartment complex's layout and several photographs showing locations in the apartment complex, which were admitted into evidence.
The defense then called defendant to testify. Defendant testified that he had lived in apartment 152 for about a month beginning in early May 2002 but he said he never had a key. He stated that he met Saldivar and Lozada in April. He testified that he activated Saldivar's cell phone and set up an account for her in his name at Verizon Wireless. In the beginning of June, he moved back with his parents.
Defendant acknowledged that he was sitting in a chair in the dumpster area of 2235 California Street when the Mountain View police first made contact with him and he was subsequently arrested for possession of stolen property, handcuffed, and taken out of the dumpster area. He claimed to have been waiting for his friend Geraldo Humberto Solano, who did not come. Defendant testified that he had smoked drugs, methamphetamine, in the dumpster area with Roberto Mora. He admitted that he got a " little bit" violent when he was arrested and tried to kick police officers because they had pushed him.
When asked why he was at the apartment complex on June 11, defendant explained that he wanted the money Saldivar owed him for the cell phone. Defendant admitted that, when he was arrested that day, he had a remote control for the apartment complex's gate but he denied stealing it from Carpio's car and claimed it belonged to his friend Solano. He admitted that he had told Officer Leal that he had found the remote control. The prosecutor then asked, " Well, which one is it? You found it or this man, Humberto, gave it to you?" Defendant replied, " Humberto gave it to me."
At trial, defendant also admitted that when he was contacted in the dumpster area, he was sitting on a blank check belonging to Carmen Carpio. When asked about Carpio's Sears charge card found in his pocket, defendant stated he found it on the chair. He claimed he also found the AAA card on the chair and admitted putting that card in his pocket.
Defendant stated he had an idea that Salidvar and Carpio had called the police. Defendant indicated that he thought they called the police because they saw him sitting in the dumpster area with stolen property.
At first, defendant denied making any telephone calls from jail after his arrest. He then admitted placing a collect call to Saldivar. He stated that he recognized Saldivar's voice when the call was answered. He said he merely asked if his girlfriend was back from Mexico. He denied accusing Saldivar of giving information about him to the police. He later acknowledged that he had made numerous collect calls from jail in the past and, when a collect call is placed from jail, the recipient receives a message that this is a collect call from Santa Clara County jail and then there is a space for the caller to say his name. He denied threatening Saldivar during any collect call.
Defendant testified that after being released from jail on June 12, he went directly to Mountain View to get the money that Saldivar owed him. He admitted he was not invited. At first, he stated he did not ever see Saldivar or Lozada that day. He then admitted to having a small conversation with Lozada when he went to her apartment. He admitted asking for Alejandra even though he knew she was in Mexico. He acknowledged seeing Lozada but he denied seeing Saldivar. He did not recall telling Lozada and Saldivar that they would be sorry or calling them " sons of bitches" or " whores" or saying " fuck you." He denied trying to force his way into Lozada's apartment. He acknowledged that he did not go to apartment number 152 to look for Saldivar.
Defendant admitted that he smoked " a little bit" of methamphetamine on the night of June 12. He stated that he was " mistaken" and " wasn't thinking clearly" when he originally testified that he had not used methamphetamine after getting out of jail.
Defendant acknowledged that he went to see Saldivar at about 5:45 a.m. on June 13. According to defendant, Saldivar had said she would have his money for him before she went to work at 7:00 a.m. He could not remember when he had this conversation or made these arrangements with Saldivar. He testified that he knocked on the patio door and Saldivar came out onto the patio. According to defendant, he asked, " 'Do you have the money you owe me for the phone?' " Saldivar said, " 'I'm going to call the cops.' " Defendant claimed that Saldivar made up his threats against her. When asked if she made up the fact that he possessed stolen property on June 11, defendant replied, " No, that was true."
Defendant admitted that, on the morning of the 13th, he crossed the street when he saw a police officer because he possessed stolen property, a stereo and Rayban glasses, and he was scared. He admitted that he crossed back and forth over the median to avoid the police officer and was teasing the officer by showing and waving handcuffs. He explained he was high on drugs. He denied telling an officer that Saldivar was a crazy bitch and he would get even with her or saying " 'payback is a bitch.' "
Defendant denied ever threatening Saldivar or Lozada or indicating that they would pay for calling the cops on him.
Defendant acknowledged that he had pled guilty to four felonies in 2003. He explained that " they had [the] evidence," he " didn't want to fight it," and he " wasn't going to jury trial for that."
After the defense rested, the prosecution recalled Officer Vieyra, who testified that Saldivar " appeared scared, frightened" when he arrived at 5:47 a.m. at the apartment at 2235 California Street. Defendant was under arrest by 6:04 a.m. At the police station on June 13, defendant referred to " Alma Saldivar as a crazy bitch" and said that " he'd get even with her and that payback is a bitch."
C. Bunnell Error
Defendant contends that the trial court committed error under Bunnell v. Superior Court, supra, 13 Cal.3d 592 by failing to advise him of his right against self-incrimination and by failing to inform him of the direct consequences of conviction before his partial submission of the case. He also maintains that the trial court committed error under Bunnell by failing to obtain separate express, personal waivers of his right to confront each officer whose preliminary hearing was considered by the court at trial.
Defendant maintains that these errors were prejudicial under People v. Watson (1956) 46 Cal.2d 818, 836. He argues that it is reasonably probable that the court would have acquitted him of at least some of the charges had he been properly apprised of his right against self-incrimination because he would not have testified. He contends that it is reasonably probable that the court would have acquitted him of at least some of the charges had he been properly advised of the potential prison sentence upon conviction because he would not have agreed to a trial by submission. Finally, defendant asserts that the court's failure to obtain an express waiver of his right to confront Officer Leal was prejudicial because it is reasonably probable that he would have been acquitted of count 10 (receiving stolen property) had the court had excluded the preliminary hearing testimony of Officer Leal.
" In Bunnell, [the California Supreme Court] court held that a stipulation to submit a case for decision on preliminary hearing transcripts must be accompanied by advice regarding the personal waiver of a defendant's constitutional rights to jury trial, silence, and to confront and cross-examine, i.e., Boykin-Tahl advice and waivers. (Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709]; In re Tahl (1960) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449].)" (People v. Sanchez (1995) 12 Cal.4th 1, 27.) The Bunnell court held: " [I]n all cases in which the defendant seeks to submit his case for decision on the transcript or to plead guilty, the record shall reflect that he has been advised of his right to a jury trial, to confront and cross-examine witnesses, and against self-incrimination. It shall also demonstrate that he understands the nature of the charges. Express waivers of the enumerated constitutional rights shall appear. In cases in which there is to be a submission without a reservation by the defendant of the right to present evidence in his own defense he shall be advised of that right and an express waiver thereof taken. If a defendant does not reserve the right to present additional evidence and does not advise the court that he will contest his guilt in argument to the court, the defendant shall be advised of the probability that the submission will result in a conviction of the offense or offenses charged. In all guilty plea and submission cases the defendant shall be advised of the direct consequences of conviction such as the permissible range of punishment provided by statute . . . ." (Bunnell v. Superior Court, supra, 13 Cal.3d at p. 605.)
The court in Bunnell, supra, 13 Cal.3d at page 605 made clear that the requirement of advisements and waivers applies " in all submissions," whether or not a submission is tantamount to a plea of guilty. Subsequently, the Supreme Court stated: " Although we recognized in Bunnell that the Boykin-Tahl advisements might not be constitutionally required in all circumstances, we concluded that in the interest of justice it was appropriate to adopt a judicially declared rule of criminal procedure, requiring the giving of certain advisements in a broad category of cases." (People v. Barella (1999) 20 Cal.4th 261, 266.)
In People v. Wright (1987) 43 Cal.3d 487, the California Supreme Court stated: " Bunnell's requirement of a self-incrimination advisement and waiver is not constitutionally compelled for submissions that are not tantamount to a plea of guilty. If the submission does not amount to a slow plea of guilty, there is no involuntary confession of guilt. Boykin-Tahl admonishments and waivers in such contested submissions are required only to effectuate the judicial policies of minimizing error, maximizing protection of defendants' constitutional rights, and eliminating the necessity of requiring trial and appellate courts to determine whether a submission is a slow plea. A trial court's failure to comply with this judicial rule of criminal procedure requires reversal only if it is reasonably probable a result more favorable to the defendant would have been reached if he had been properly advised. [Fn. omitted.] (Cal. Const., art. VI, § 13; People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.)" (Id. at p. 495.) The court advised: " Because omissions of the self-incrimination advisement and waiver are per se reversible for slow pleas but subject to a Watson test of prejudice if guilt remains contested after the submission, trial courts are advised to abide by the Bunnell requirement to give admonishments and obtain waivers in all submission cases." (Ibid., italics added, but see People v. Howard (1992) 1 Cal.4th 1132, 1174-1179 [rejecting reversal per se and adopting federal constitutional test].)
In People v. Robertson (1989) 48 Cal.3d 18, 39-40, the California Supreme Court explained " submission" as follows: " A 'submission' within the meaning of Tahl, supra, 1 Cal.3d 122 and Bunnell, supra, 13 Cal.3d 592 occurs when a defendant gives up his right to trial by jury and, unless otherwise specified, the right to present additional evidence in his own defense and agrees the court can decide his case on the basis of the transcript of prior proceedings. (Bunnell v. Superior Court, supra, 13 Cal.3d at p. 604; see People v. Hendricks, supra, 43 Cal.3d at p. 593.) Although the parties may reserve the right to present additional evidence, the essential components of a submission are waiver of a jury trial and, with respect to the witnesses who testified in the prior proceedings, waiver of the right to confrontation in the present proceeding. (See People v. Wright, supra, 43 Cal.3d at p. 496; People v. Hendricks, supra, 43 Cal.3d at p. 593, and cases cited; cf. People v. Phillips (1985) 172 Cal.App.3d 670 . . . .) When the submission is a 'slow plea' or 'tantamount to a plea of guilty,' the defendant also gives up his privilege against self-incrimination. (People v. Levey, supra, 8 Cal.3d at p. 652.)" (Id. at pp. 39-40.)
In People v. Sanchez (1995) 12 Cal.4th 1, the defendant waived his right to a jury trial and submitted the case for a court trial on the basis of the preliminary hearing transcripts. The defendant argued on appeal that the trial court committed reversible error under Bunnell by failing to advise him that he was relinquishing his Fifth Amendment right against self-incrimination and by failing to advise him of the direct consequences of a conviction. (Id. at p. 28.) The Supreme Court recognized in Sanchez that, even though that defendant's submission was not tantamount to a guilty plea, Boykin-Tahl advisements and waivers were required as a matter of judicial policy. (See People v. Sanchez, supra, 12 Cal.4th at pp. 28-29.) Nevertheless, the court found no reversible error.
The Sanchez court stated: " For submissions not tantamount to a guilty plea, a trial court's failure to advise the defendant of his right against self-incrimination is implicated only to the extent defendant surrendered the right. (Hendricks, supra, 43 Cal.3d at p. 592.)" (12 Cal.4th at p. 30.) The court determined that defendant Sanchez was not required to make a personal, on-the-record waiver of his right against self incrimination since he " never surrendered his self-incrimination privilege because he chose not to testify during the guilt phase proceedings." (Ibid.) The court also concluded that the court's failure to inform defendant of the potential maximum and minimum terms of imprisonment required " reversal only if it is reasonably probable a result more favorable to the defendant would have been reached in absence of the error. (Wright, supra, 43 Cal.3d at p. 495; People v. Watson (1956) 46 Cal.2d 818, 836 . . . .)" (Ibid.)
In this case, we conclude that reversal is not required for any Bunnell error because it is not reasonably probable a result more favorable to the defendant would have been reached in absence of such error.[3] The record indicates that the parties agreed that the case would be submitted on the extensive preliminary hearing transcript, the prosecution reserved the right to call additional witnesses, and defendant retained the right to testify in his own behalf. Defendant understood that the court would be considering the testimony of witnesses who would not be present in court. The court expressly advised defendant of his right to have witnesses testify in person in court and to cross-examine them, the protections encompassed by the Confrontation Clause (see Coy v. Iowa (1988) 487 U.S. 1012, 1015-1020 [108 S.Ct. 2798]; Pennsylvania v. Ritchie (1987) 480 U.S. 39, 51 [107 S.Ct. 989], plur. opn.). The prosecutor named three witnesses, Carpio, Saldivar and Lozada, and referred to the Proposition 115 testimony. Defendant indicated his willingness to give up his right to confront the " particular witnesses who were referenced" and expressly waived his right to confront the witnesses " listed by Mr. Okonkwo" and his right to confront Ileana Jimenez, a victim of another theft. The defense did not object to the court's consideration of any preliminary hearing testimony on the ground of defendant's Sixth Amendment right of confrontation and did not object to any particular portion of the preliminary hearing transcript after the court provisionally announced only a limited exclusion of prior testimony at trial. At trial, defendant related his relatively recent experience entering pleas of guilty and his willingness to do so when the evidence was against him.
The record reflects defendant's clear desire to submit the case on the preliminary hearing testimony relevant to the counts prosecuted at trial but to testify in his own defense. Nothing in the record before us suggests that defendant would not have submitted the case on the portions of the preliminary hearing transcript considered by the trial court had the court sought separate waivers of the right of confrontation, had the court advised defendant of the consequences of conviction, or had the court informed defendant of his right against self-incrimination.
In addition, since defendant reserved the right to present evidence in his own defense and his partial submission did not amount to a slow plea of guilty (see People v. Sanchez, supra, 12 Cal.4th at pp. 28-29; People v. Wright (1987) 43 Cal.3d 487, 496-497),[4] defendant's constitutional right against self-incrimination was not implicated by the submission. (See People v. Sanchez, supra, 12 Cal.4th at p. 30; see also People v. Robertson, supra, 48 Cal.3d at p. 40.) Consequently, a personal, on-the-record waiver of that right was not required for the submission. (See People v. Sanchez, supra, 12 Cal.4th at p. 30.)
Defendant eventually partially waived his right against self incrimination at trial when he exercised his right to testify in his own behalf. " 'A defendant who takes the stand to testify in his own behalf waives the privilege against self-incrimination to the extent of the scope of relevant cross-examination. [Citations.] . . . ' [Citations.]" (People v. Coffman (2004) 34 Cal.4th 1, 72.) By testifying in his own defense, a defendant relinquishes " his privilege against compelled self-incrimination with respect to cross-examination on matters within the scope of the narrative testimony he provided on direct examination, as well as on matters that impeached his credibility as a witness. [Citations.]" (People v. Barnum (2003) 29 Cal.4th 1210, 1227, fn. 3.) Trial courts are not required to advise a defendant of the right against self-incrimination prior to a defendant testifying in his or her own defense. (See Brown v. U.S. (1958) 356 U.S. 148, 154-155 [78 S.Ct. 622] [where a defendant in a criminal case voluntarily " takes the stand and testifies in his own defense his credibility may be impeached and his testimony assailed like that of any other witness, and the breadth of his waiver is determined by the scope of relevant cross-examination" ]; Powers v. U.S. (1912) 223 U.S. 303, 314 [32 S.Ct. 281] [" the rule recognized in this court is that a defendant who voluntarily takes the stand in his own behalf, thereby waiving his privilege [against self-incrimination], may be subjected to a cross-examination concerning his statement" ]; People v. Thomas (1974) 43 Cal.App.3d 862, 867 [a trial court has no duty to advise a defendant who is represented by counsel regarding the privilege against self-incrimination and such defendant effectively waives the privilege against self-incrimination as to all inquiries proper on cross-examination by voluntarily taking the witness stand]; see also People v. Barnum, supra, 29 Cal.4th at p. 1226 [" a trial court is not required to advise a self-represented defendant of the privilege against compelled self-incrimination" ].)
Reversal is not required. It is not reasonably probable that a result more favorable to the defendant would have been reached in absence of the alleged Bunnell errors. (See People v. Sanchez, supra, 12 Cal.4th at p. 30; People v. Watson (1956) 46 Cal.2d 818, 836.)
D. Section 654
The crimes charged in counts one (first degree burglary), two (threatening a witness) and six (making criminal threats) all involved defendant's conduct early on the morning of June 13, 2002. In closing argument, the prosecutor indicated that counts one and two " cover the same period of time" and count two involves the " words spoken" conveying that " he was going to beat her up." The prosecutor stated as to count six: " Count 6 is also a criminal threat count and I think it certainly would be argued by the defense it's 654 to Count 1 or Count 2 or both." He acknowledged that " [t]he 422 [count six] is also achieved by the same facts that are found in Count 2." Punishment was stayed as to count six but not as to count two.
" The test for determining whether section 654 prohibits multiple punishment has long been established: 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' (Neal v. State of California, supra, 55 Cal.2d at p. 19 . . . .)" (People v. Britt (2004) 32 Cal.4th 944, 951-952.) " [O]rdinarily, if the defendant commits both burglary and the underlying intended felony, Penal Code section 654 will permit punishment for one or the other but not for both. [Citations.]" (People v. Centers (1999) 73 Cal.App.4th 84, 98-99.)
Defendant now asserts that the information and the evidence show that his sole intent in entering the apartment on the morning of June 13, 2004 was to threaten Salidvar and, therefore, both count two and count six should have been stayed pursuant to section 654. The People concede that count two should have been stayed. We agree since the burglary count alleged that defendant entered with the intent to commit a violation of section 140 and the record shows the three crimes were committed during an indivisible course of conduct incident to a single objective and did not involve multiple victims of violence. (Cf. People v. Miller (1977) 18 Cal.3d 873, 886.)
The judgment is modified to stay punishment on count two pursuant to section 654. As modified, the judgment is affirmed. The trial court is directed to send an amended abstract of judgment to the Department of Corrections reflecting the modification.
_____________________________
ELIA, J.
WE CONCUR:
_____________________________
RUSHING, P. J.
_____________________________
PREMO, J.
Publication Courtesy of California attorney directory.
Analysis and review provided by Oceanside Apartment Manager Lawyers.
[1] All further statutory references are to the Penal Code.
[2] " [B]y virtue of provisions adopted as part of Proposition 115 more than a decade ago, qualified police officers generally are permitted to relate the statements of out-of-court declarants at a preliminary hearing." (Correa v. Superior Court (2002) 27 Cal.4th 444, 448; see § 872, subd. (b).)
[3] Although the trial court did not obtain separate express waivers of defendant's right to confront each law enforcement officer whose preliminary examination testimony was considered by the court and every hearsay declarant whose statements were related by those officers, defendant has not claimed that his partial submission was not a voluntary, intelligent and knowing waiver of his right to confront each of those witnesses under the totality of circumstances. (See Brady v. U.S. (1970) 397 U.S. 742, 748-749 [90 S.Ct. 1463] [waivers of constitutional rights must be voluntary, knowing, and intelligent acts and voluntariness can be determined only by considering all of the relevant circumstances]; cf. Boykin v. Alabama (1969) 395 U.S. 238, 242-243 [knowing and voluntary guilty plea waives privilege against compulsory self-incrimination, right to jury trial, and right to confrontation], 243 [waiver of these federal constitutional rights cannot be presumed from a silent record]; 243 [federal standards govern question of an effective waiver of a federal constitutional right], 244 [record must affirmatively disclose that defendant voluntarily and understandingly entered pleas of guilty]; cf. also People v. Mosby (2004) 33 Cal.4th 353, 365 [under totality of the circumstances, defendant voluntarily and intelligently admitted prior conviction despite being advised of and having waived only right to jury trial]; People v. Allen (1999) 21 Cal.4th 424, 439, fn. 4 [" Although we have not directly held the Howard totality-of-the-circumstances test would apply on direct appeal from a guilty plea to a substantive offense, our subsequent cases seem to have assumed it" ]; Parke v. Raley (1992) 506 U.S. 20, 37, 113 S.Ct. 517, 121 L.Ed.2d 391 [" a defendant's prior experience with the criminal justice system" is " relevant to the question of whether he knowingly waived constitutional rights" ]; People v. Howard (1992) 1 Cal.4th 1132, 1175 [defendant's admission of special allegation is valid if the record affirmatively shows that it was voluntary and intelligent under the totality of the circumstances].)
[4] Defense counsel conducted substantial cross-examination of the prosecution witnesses during the preliminary hearing. Defendant did not concede guilt as to any count. He reserved the right to testify in his own behalf and testified at trial regarding every count that was prosecuted at trial. Although defense counsel indicated after the close of evidence that he was submitting on count 10, counsel did present closing arguments in regard to counts one, two, three, five and six.
