Filed 10/18/17 P. v. Roberson CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Glenn)

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A jury found defendant Kenneth Wayne Roberson guilty of being a felon in possession of ammunition. (Pen. Code, § 30305, subd. (a)(1).)[1] Defendant admitted to allegations that he was previously convicted of five strike offenses. (§§ 667, subd. (c) & (e)(1), 1170.12, subd. (c)(1).)

On appeal, defendant contends the trial court failed to advise him of his Boykin-Tahl[2] rights prior to accepting his admission. Defendant also contends the trial court erred in imposing a $1,069 “base fine” for his conviction under section 30305. We conclude both claims have merit and remand the matter to the trial court for retrial of the enhancement allegations and resentencing, and to articulate the basis for imposition of the base fine.

BACKGROUND

We recite only the facts relevant to defendant’s claims of error.

The complaint alleged defendant was previously convicted of five strike offenses. Prior to trial, there was an off-the-record meeting that resulted in the following colloquy on the record:

“THE COURT: Ok. Thank you.

“We met earlier this morning and discussed any stipulated issues, and it’s my understanding there is . . . also a stipulation that the special allegations--I think they’re charged five times--are also true. Is that correct?

“[DEFENSE COUNSEL]: Yes, your Honor. We’re further stipulating that he has a status of a convicted felon as a result of those convictions.

“[THE PROSECUTOR]: Thank you, your Honor. That is stipulated.”

The People then entered several exhibits to support that stipulation.

As to those prior strikes, the court later asked:

“And each--and your client is stipulating to the strike priors also, [counselor], that are on page 2, 3, and 4 of the Information?

“[DEFENSE COUNSEL]: Yes, your Honor. Stipulating to each and every one of those as a strike prior pursuant to 1170.12c(1) [sic].

“THE COURT: . . . They are also--the strike priors they are alleged and also incorporated into the prior admission of the prior felony convictions?

“[DEFENSE COUNSEL]: Yes, your Honor.”

The court then stated, “[B]ecause the defendant . . . has stipulated to these matters being found to be true at this time, they will not be mentioned in front of the jury with the exception that he is an ex-felon at the time of the event. . . .”

Later in the trial, when preparing to discuss jury instructions, the trial court referred again to the stipulation: “. . . I don’t have anything for the special allegations. They have been stipulated to. So I will return the verdict forms to counsel for the People.”

At sentencing, the trial court noted defendant “previously admitted to the special allegation under [section] 1170.12[,] making him ineligible for probation in this case.” The court then sentenced defendant to six years in state prison. The court ordered defendant to “pay a base fine in this matter for the violation of $1,069, a restitution fine of [$]1[,]800, [and] a parole revocation . . . fine of [$]1[,]800.”

DISCUSSION

A. Boykin-Tahl Rights

Defendant contends the trial court failed to advise him of his Boykin-Tahl rights prior to accepting his admission to being previously convicted of five strike offenses thereby rendering his admission invalid. The People concede the error, and we agree.

A criminal defendant’s plea of guilty amounts to a waiver of three constitutional rights: (1) the privilege against self-incrimination; (2) the right to a trial by jury; and (3) the right to confront one’s accusers. Accordingly, the trial court must advise a defendant of these rights before taking such a plea. (Boykin, supra, 395 U.S. at pp. 242-243 [23 L.Ed.2d at p. 279]; Tahl, supra, 1 Cal.3d at p. 132 [“each of the three rights mentioned -- self-incrimination, confrontation, and jury trial -- must be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his guilty plea”].) For a waiver of these constitutional rights to be valid, it must be knowing, intelligent, and voluntary. (See Boykin, at p. 244 [23 L.Ed.2d at p. 280].)

In California, the Boykin-Tahl advisements must also be given before the trial court may accept a criminal defendant’s admission that he or she has prior felony convictions. (In re Yurko (1974) 10 Cal.3d 857, 863.) “As an accused is entitled to a trial on the factual issues raised by a denial of the allegation of prior convictions, an admission of the truth of the allegation necessitates a waiver of the same constitutional rights as in the case of a plea of guilty.” (Ibid.) The trial court must also advise such a defendant of “the full penal effect of a finding of the truth of an allegation of prior convictions.” (Id. at p. 865.)

The lack of express advisement, and waiver, of each of the Boykin-Tahl rights constitutes reversible error unless “the record affirmatively shows that [the admission] is voluntary and intelligent under the totality of the circumstances.” (People v. Howard (1992) 1 Cal.4th 1132, 1175.)

In People v. Mosby (2004) 33 Cal.4th 353, our Supreme Court drew a distinction between “silent-record cases” and cases of “ncomplete advisement of [i]Boykin-Tahl rights.” (Id. at pp. 361-363.) In the former situation, the record reveals “no express advisement or waiver of the Boykin-Tahl rights before a defendant’s admission of a prior conviction.” (Id. at p. 361.) In such cases, “we cannot infer that in admitting the prior the defendant has knowingly and intelligently waived [the right to trial to determine the truth of the prior conviction allegation] as well as the associated rights to silence and confrontation of witnesses.” (Id. at p. 362; see People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1420-1421.)

The People concede that in this case there were no advisements given, nor any waivers taken prior to the trial court’s acceptance of defendant’s admission that he was previously convicted of five strike offenses. In this silent-record case, we cannot infer that defendant’s admission of the enhancement allegation was knowing or intelligent. (Cf. People v. Mosby, supra, 33 Cal.4th at p. 362.)

This error compels that we reverse the trial court’s prior prison term finding and vacate defendant’s sentence. Remand for retrial of the strike enhancement allegations is permissible. (See People v. Sifuentes, supra, 195 Cal.App.4th at pp. 1421-1422.)

B. Base Fine

Defendant also contends the trial court erred in failing to articulate the basis for imposition of a $1,069 “base fine.” The People concede the issue. We agree the trial court erred.

Defendant was convicted of violation section 30305, which “is punishable by imprisonment in a county jail not to exceed one year or in the state prison, by a fine not to exceed one thousand dollars ($1,000), or by both the fine and imprisonment.” (§ 30305, subd. (a)(2).) This fine, which may not exceed $1,000, is the “base fine”; it can be increased by penalties and surcharges. (See People v. Hamed (2013) 221 Cal.App.4th 928, 935.) The trial court did not, however, articulate any penalties or surcharges, referring to the $1,069 as the “base fine.” Nor did the abstract of judgment list the correct statutory basis for the fine, noting only general penalty provisions sections 18 and 19.

Accordingly, we will remand the matter and direct the trial court to identify the statutory basis or bases for the $1,069 fine. (People v. High (2004) 119 Cal.App.4th 1192, 1201.)

DISPOSITION

Defendant’s prior strike conviction enhancement findings are reversed, his sentence is vacated, and the matter is remanded to the trial court for retrial of the strike allegations and resentencing. On remand the trial court is further directed to articulate the basis or bases for the $1,069 fine imposed on defendant, to prepare an amended abstract of judgment, and to deliver a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

/s/

Blease, Acting P. J.

We concur:

/s/

Duarte, J.

/s/

Renner, J.