P. v. Gaines

Filed 8/23/07 P. v. Gaines CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Andrew Donnell Gaines was convicted by a jury of attempted second degree robbery (Pen. Code,  211, 664)[1] and was sentenced to two years in prison for that offense, plus one year for service of a prior prison term ( 667.5, subd. (b)). Defendant submits that the one-year enhancement must be reversed because it was neither admitted nor found to be true. We hold that defendant effectively admitted the enhancement, and thus affirm the judgment.

I.

The information filed March 20, 2006, charged defendant with the enhancement as follows: It is further alleged . . . pursuant to Penal Code section 667.5(b) that the defendant Andrew Donnell Gaines, has suffered the following prior conviction(s): Court Case - FCR204127, Code/Statute - HS11350(a), Conviction Date - 02/07/2003, County - SOLANO, State - CA, Court Type - SUPERIOR and that a term was served as described in Penal Code section 667.5 for said offense(s), and that the defendant did not remain free of prison custody for, and did commit an offense resulting in a felony conviction during, a period of five years subsequent to the conclusion of said term. On the date the information was filed, defendant waived arraignment and denied the enhancement.

After the verdict was returned on the current offense, the court called a recess while defendant conferred with counsel about waiving a jury trial on the enhancement. The court explained to the jury that as part of the whole charge, he is charged with a prior conviction of a felony offense and that has to be proven . . . . After the recess, the court excused the jury, turned to the enhancement, and took appellants admission as follows:

The Court: . . . Miss Polvorosa [defense counsel], I understand Mr. Gaines is willing to admit that he, in fact, suffered a conviction on February 7th, 2003 and that five years has not expired since he served that term?

Ms. Polvorosa: Thats correct.

The Court: Do you admit that is true, Mr. Gaines?

The Defendant: Yes, sir.

The Court: Ill accept your admission.

II.

Defendant contends that the enhancement must be reversed because the court did not secure his admission that he had suffered a felony, as opposed to a misdemeanor, conviction, or that he had served a prison, as opposed to a jail, term for that conviction, as required by section 667.5, subdivision (b). This contention lacks merit.

While a felony conviction and a prison term were not expressly mentioned in the discussion among the court, defendant, and defense counsel, it is clear in context that defendant was admitting the enhancement as alleged in the information where those facts were spelled out. The admission was entered immediately following a conference with counsel about the enhancement that was part of the whole charge in the case, and the statements at issue plainly referred to the enhancement as charged. The February 7, 2003 conviction defendant admitted could have been none other than the Health and Safety Code section 11350, subdivision (a) conviction, a felony offense, which was alleged to have occurred on that date, and that term defendant admitted serving cannot be construed as anything other than the prison term he was alleged to have served for that offense.

A defendant can effectively admit an enhancement even if the record does not affirmatively establish that he was advised of every element thereof. (People v. Thomas (1986) 41 Cal.3d 837, 844.) Here, defendant admitted that he had: (1) suffered a specific prior conviction, previously identified as a felony; and (2) served time for that conviction, previously identified as a prison term, within the last five years. These admissions were sufficient for imposition of the enhancement, even if the previously identified elements were only implicit in the discussion.

Defendant contends that a contrary conclusion is required under People v. Lopez (1985) 163 Cal.App.3d 946, and People v. Epperson (1985) 168 Cal.App.3d 856, but those cases are distinguishable. The defendants there admitted nothing beyond their prior convictions. (People v. Lopez, supra, at p. 951; People v. Epperson, supra, at pp. 863-865.) Here, as noted, defendant not only admitted the prior conviction, he also admitted serving time therefore within the previous five years, a term that, in context, corresponded to the one alleged.

III.

The judgment is affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Stein, J.

______________________

Margulies, J.

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[1] Unless otherwise indicated, subsequent statutory references are to the Penal Code.