Filed 9/18/17 P. v. Jones CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge. Affirmed.

Law Offices of John F. Schuck and John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Chellyn Jones of multiple counts of insurance fraud (Ins. Code, § 1871.4, subd. (a)(1); counts 3-8, 11-20) and grand theft (Pen. Code, § 487, subd. (a); count 21). Jones waived a jury trial and admitted she had served three prior prison terms (Pen. Code, §§ 667.5, subd. (b), 668) and suffered a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12 and 668). She thereafter pleaded guilty to failing to appear at her sentencing hearing (Pen. Code, § 1320, subd. (b)), and admitted an allegation that she had committed the crime while out on bail (Pen. Code, § 12022.1, subd. (b)). On Jones's motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), the trial court struck her strike prior conviction. It exercised its discretion to also strike her prior prison terms and the on-bail enhancement. The court sentenced Jones to a five-year prison term on count 3, concurrent three-year midterms on counts 4 through 8 and 11 through 20, and concurrent two-year terms on count 21 as well as on her failure to appear conviction.

Jones contends that the trial court failed to fully advise her of her rights under Boykin-Tahl (Boykin v. Alabama (1969) 395 U.S. 238 (Boykin) and In re Tahl (1969) 1 Cal.3d 122 (Tahl)); that while the court advised her of her right to a jury trial on the alleged prior convictions, it failed to advise her of her constitutional rights against self-incrimination and confrontation before she admitted the priors. She maintains that her jury trial waiver after the court's perfunctory advisement at sentencing does not establish she was aware of or understood her other rights with respect to her prior convictions, and there was no evidence her counsel discussed all of these constitutional rights with her, rendering her admissions invalid. We conclude Jones's admission to her prior convictions was voluntary and intelligent under the totality of the circumstances, and therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND[1]

Jones's jury trial took place over the course of nine days in October 2015. After the jury commenced its deliberations, the court brought up the subject of bifurcating Jones's prior convictions, and defense counsel advised the court that Jones would admit to the priors. The court then obtained Jones's waiver of a jury trial:

"The court: . . . Ma'am, you have a right to have a jury trial on the priors. Do you waive that right?"

"[Jones]: Okay, yeah.

"The court: Do you waive the right to have a jury trial on that?

"[Jones]: Yeah."

After the jury reached its verdicts on Jones's convictions, the following colloquy occurred:

"The court: Priors, what do you want to do about the priors?

"[Defense counsel]: We're going to admit.

"The court: All right. Ma'am, do you admit the prior convictions which are listed in the complaint, including three prison priors which are alleged in the Penal Code section 667.5[, subdivision] (b), which all three are listed, and also a strike, a violation of Penal Code section 246.3 from 1999? Do you admit those prior convictions?

"[Jones]: Yes.

"The court: Thank you. Note the admission of the prior convictions."

DISCUSSION

Before accepting a criminal defendant's admission of a prior conviction, a trial court must advise the defendant of the right to a jury trial on the prior, the right to remain silent, and the right to confront adverse witnesses. (In re Yurko (1974) 10 Cal.3d 857, 863; People v. Lloyd (2015) 236 Cal.App.4th 49, 57.) A proper advisement and defendant's waiver of those Boykin-Tahl rights in the record establish that the defendant's admission of the prior conviction was voluntary and intelligent. (People v. Mosby (2004) 33 Cal.4th 353, 356 (Mosby).) But a court's failure to give explicit advisements or obtain the defendant's waiver is not reversible per se. (People v. Cross (2015) 61 Cal.4th 164, 171.) "Instead, the test for reversal is whether 'the record affirmatively shows that [the admission] is voluntary and intelligent under the totality of the circumstances.' " (Id. at pp. 171, 179, quoting People v. Howard (1992) 1 Cal.4th 1132, 1175 (Howard); see Mosby, at pp. 361-365.) In making this inquiry, we look to whether the defendant's

" 'previous experience in the criminal justice system' " demonstrates his or her

" ' "knowledge and sophistication regarding his [legal] rights . . . ." ' " (Cross, at p. 180, quoting Mosby, at p. 365.) Thus, where, as here, the transcript does not reveal complete advisements and waivers, we "must go beyond the courtroom colloquy" to assess the defendant's claim of error and "examine the record of 'the entire proceeding' to

assess whether the defendant's admission of the prior conviction was intelligent and voluntary . . . ." (Mosby, supra, 33 Cal.4th at p. 361.)

In Mosby, the court found a defendant voluntarily and intelligently admitted his prior conviction despite the absence of his waiver of his rights to remain silent and to confront adverse witnesses. (Id. at pp. 356, 360, 363-365.) There, immediately after the jury found the defendant guilty, the trial court expressly advised the defendant he had a right to a jury trial on the prior conviction allegation, and the defendant expressly waived that right, admitting the truth of that allegation. (Id. at pp. 358, 364.) On appeal, the defendant argued the trial court reversibly erred by failing to advise him of his other two rights. (Id. at p. 364.) The California Supreme Court rejected the contention, looking to the defendant's previous experience in the criminal justice system and his knowledge and sophistication regarding his legal rights. (Id. at p. 365.)

The Mosby court pointed out that the defendant had just participated in a jury trial at which he did not testify, and during the trial his counsel confronted witnesses. (Mosby, supra, 33 Cal.4th at p. 365.) Also, his prior conviction was based on a plea of guilty, in connection with which he would have received the requisite advisements. (Ibid.) Thus, the California Supreme Court held that under the totality of the circumstances, the Court of Appeal did not err by concluding the defendant had voluntarily and intelligently admitted his prior conviction despite being advised of and having waived only his right to a jury trial. (Ibid.)

Jones concedes in her reply brief that we must apply Mosby's totality of the circumstances test; that this is not a so-called "silent record" case. (Mosby, supra, 33 Cal.4th at p. 361.)[2] Under the circumstances of this case, Mosby controls and requires that we affirm the judgment. Immediately after Jones's trial concluded and the jury was sent out to deliberate, the court advised her of her right to jury trial on her prior convictions, and Jones explicitly waived that right. She had just completed a multi-day trial in which her counsel confronted and cross-examined witnesses, and she chose not to testify or present evidence. Jones had suffered multiple prior convictions, and at least one of them alleged to be a prison prior—a 2005 conviction for identity theft—was the result of a guilty plea, at which she would have received Boykin-Tahl advisements. As in Mosby, given these circumstances Jones thus " 'knew [s]he did not have to admit [the prior convictions] but could have had a jury or court trial, had just participated

in a jury trial where [s]he had confronted witnesses and remained silent, and had experience in pleading guilty in the past, namely, the very conviction that [s]he was now admitting.' " (Mosby, supra, 33 Cal.4th at p. 365.)

Jones would have us ignore Mosby, which is apposite, and hold that the fact she waived her jury trial right, even after having just completed a lengthy trial, does not establish she was aware of or understood her other rights with respect to her prior convictions. She argues the trial court did not ascertain whether she "fully understood" her right to a jury trial since its admonition was "obtained in a perfunctory manner," and there was no evidence counsel discussed with her all of her constitutional rights. But Mosby permits us to infer from the circumstances of Jones's experience in the criminal justice system, including Jones's prior guilty plea, that she in fact understood the nature of the Boykin-Tahl rights. Accordingly, though we emphasize that trial courts are required to give full advisements and obtain express waivers of all such rights (see Mosby, supra, 33 Cal.4th at p. 365, fn. 3), under the totality of the circumstances in this case, Jones voluntarily and intelligently admitted her prior convictions despite being advised of and having waived only her right to jury trial. (Id. at p. 365.)

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.