Filed 1/10/18 P. v. Rodriguez CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

AL RODRIGUEZ,

Defendant and Appellant.

F074741

(Fresno Super. Ct. No. F16904014)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. James M. Petrucelli, Judge.
Kent D. Young, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Penal Code section 273.5, subdivision (a) defines the crime of inflicting corporal injury on a cohabitant (among other classes of victims). Subdivision (f) of the same statute provides for enhanced punishment of any person convicted of violating section 273.5 within seven years of a previous conviction for certain enumerated crimes. (§ 273.5, subd. (f)(1).)
Defendant Al Rodriguez was charged with and convicted of two crimes after he choked a cohabitant. The information and jury verdict form described one of those crimes as corporal injury to a cohabitant “with [a] prior” under section 273.5, subdivision (f)(1).
During trial, the jury was informed that defendant had stipulated that he suffered a prior conviction for corporal injury on a spouse on December 12, 2011. There is no indication defendant was advised of his trial rights before entering into the stipulation.
Under People v. Cross (2015) 61 Cal.4th 164 (Cross), it was error for the trial court to fail to give a trial rights advisement and obtain a waiver as to those rights before accepting defendant’s stipulation to a prior conviction. The distinction urged by the Attorney General – that the charging document in this case alleged a violation of subdivision (f)(1) as a crime whereas the charging document in Cross alleged the applicability of subdivision (f)(1) as a separate allegation – is immaterial. (See Cross, supra, 61 Cal.4th at pp. 175–176.)
As a result, defendant’s conviction for “corporal injury to cohabitant with prior” must be reversed. The count may be retried. We also accept the Attorney General’s concession that the sentence on a prior prison term enhancement must be stricken. That, too, may be tried on remand. In all other respects, the judgment is affirmed.
BACKGROUND
In an information filed in July 2016, defendant was charged with inflicting corporal injury on a cohabitant, spouse, etc. with a prior (count 1; § 273.5, subd. (f)(1)), assault by means likely to produce great bodily injury (count 2; § 245, subd. (a)(4)), and dissuading a witness from reporting a crime (count 3; § 136.1, subd. (b)(1).) The information also alleged a section 667.5, subdivision (b) enhancement for a December 12, 2011, conviction for violating section 273.5, subdivision (a).
A jury convicted defendant on counts 1 and 2, but acquitted defendant of count 3. The jury verdict on count 1 read as follows:
“We, the jury in the above-entitled action, find the defendant, AL RODRIGUEZ, GUILTY of Penal Code Section 273.5(f)(1), CORPORAL INJURY TO COHABITANT WITH PRIOR, a felony, as charged in Count One of the Information filed herein.”
The court sentenced defendant to five years in prison on count 1, plus one year for the section 667.5, subdivision (b) enhancement. On count 2, defendant was sentenced to an aggravated, concurrent term of four years.
EVIDENCE
Stephanie C. testified that on June 17, 2016, she got into an argument with defendant, who she was living with at the time. During the argument, defendant straddled her and choked her. Defendant eventually began to leave and Stephanie C. said she was calling the police. Defendant ran, grabbed the phone out of her hand, and hit her in the face with the phone.
Defendant testified the argument began because Stephanie C. was upset when he asked about the smell of methamphetamine in the house. Defendant told Stephanie C. “that was enough, I couldn’t deal with it anymore.” Stephanie C. screamed at him as he left. Defendant testified he never straddled Stephanie C., never put his hands around her neck and never threw her phone.
Prior Offense
Stipulation
After opening arguments, the court read a stipulation between the parties to the jury. The court said the stipulation would be marked as an exhibit and would be available to the jury during deliberations. The stipulation provided, in pertinent part:
“The defendant, Al Rodriguez, was duly and legally convicted of a felony violation of Penal Code Section 273.5 subdivision (a), corporal injury to spouse, in Fresno case number F11906177 on December 12, 2011, involving the named victim, Stephanie [C.].”
The court then instructed the jury: “Now, the People and the defense have agreed to stipulate to these facts. This means that they both accept these facts as true. Because there is no dispute about these facts, you must also accept them as true.”
Defendant’s Testimony
The following exchange occurred during defendant’s testimony:
“Q. Let me – we talked about a prior incident involving you and Stephanie, correct, from 2011?
“A. Yes.
“Q. Okay. Do you recall what happened in that case? Did you go to trial and fight it or did something else happen?
“A. No, I took a plea on it and manned up to it and confessed, because, I mean, there was an incident there, and I was guilty of it, so I—
“Q. Okay. And so you took some sort of a plea bargain; correct?
“A. Correct.”
On cross-examination, the following exchange occurred:
“Q. Let’s talk about 2011, the incident with the rifle. On October 25, 2011, you loaded a rifle and you pointed it at Stephanie [C.] in a threatening manner; correct?
“A. No, I did not.
“Q. You pled guilty to domestic violence involving that rifle, did you not?
“A. No, I did not. I pleaded no contest.
“Q. Okay. I apologize. You pled no contest, which is very similar to guilty is that correct?
“A. I don’t know what the statute is. I pled not guilty – I mean, no contest as part of the agreement we did.
“Q. You took responsibility for what you did October 25 of 2011?
“A. Correct.”

Response to Juror Question
In response to a jury question during deliberations, the court told the jury:
“Jury instruction 840 refers – No. 840 in the upper left hand corner – refers to Penal Code Section 273.5. Penal Code Section 273.5 subdivision (a) is corporal injury without a prior conviction. Penal Code Section 273.5(f)(1) is corporal injury with a prior conviction. There has been a stipulation to the prior conviction, and one of your jury instructions gives you instructions about a stipulation. The elements to be proved for Penal Code Section 273.5 subdivision (a) and Penal Code Section 273.5 subdivision (f) subsection (1) are the same.”
DISCUSSION

I. UNDER SUPREME COURT AUTHORITY, THE TRIAL COURT WAS REQUIRED TO GIVE A TRIAL RIGHTS ADVISEMENT BEFORE ACCEPTING DEFENDANT’S STIPULATION; THE RECORD REVEALS NO SUCH ADVISEMENTS AND DEFENDANT’S CONVICTION MUST THEREFORE BE REVERSED
Defendant argues the trial court improperly accepted his stipulation without advisement and waiver of his trial rights. Under Cross, supra, 61 Cal.4th 164, we must agree.
A. Boykin-Tahl Advisements
“When a criminal defendant enters a guilty plea, the trial court is required to ensure that the plea is knowing and voluntary. [Citation.] As a prophylactic measure, the court must inform the defendant of three constitutional rights – the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers – and solicit a personal waiver of each. [Citations.]” (Cross, supra, 61 Cal.4th at p. 170.) These are sometimes called “Boykin-Tahl advisements.” (E.g., People v. Mosby (2004) 33 Cal.4th 353, 365.) This rule has been extended to apply “when a defendant admits the truth of a prior conviction allegation that subjects him to increased punishment.” (Cross, supra, 61 Cal.4th at p. 170, citing In re Yurko (1974) 10 Cal.3d 857.)
B. Section 273.5
Section 273.5, contains several subdivisions. (§ 273.5.)
Subdivision (a) defines the substantive crime of willful infliction of corporal injury.
“Any person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim described in subdivision (b) is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000), or by both that fine and imprisonment.” (§ 273.5, subd. (a).)
Subdivision (f) provides for enhanced punishment if the defendant’s violation of subdivision (a) occurred within seven years of a prior conviction for certain enumerated crimes.
“(f)(1) Any person convicted of violating this section for acts occurring within seven years of a previous conviction under subdivision (a), or subdivision (d) of Section 243, or Section 243.4, 244, 244.5, or 245, shall be punished by imprisonment in a county jail for not more than one year, or by imprisonment in the state prison for two, four, or five years, or by both imprisonment and a fine of up to ten thousand dollars ($10,000).
“(2) Any person convicted of a violation of this section for acts occurring within seven years of a previous conviction under subdivision (e) of Section 243 shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to ten thousand dollars ($10,000), or by both that imprisonment and fine.” (§ 273.5, subd. (f).)
C. Cross
In Cross, supra, 61 Cal.4th 164, the Supreme Court addressed whether Boykin-Tahl advisements are required when a defendant stipulates that he or she has suffered a prior conviction under section 273.5, subdivision (f). In Cross, the defendant was charged with felony infliction of corporal injury under section 273.5, subdivision (a). (Cross, supra, 61 Cal.4th at p. 168.) The information also alleged Cross had suffered a prior conviction under section 273.5. Cross stipulated that he had indeed suffered a prior conviction under section 273.5, and the trial court accepted the stipulation without advising him of any trial rights or eliciting a waiver of those rights. The jury convicted Cross of violating section 273.5, subdivision (a) and found true the prior conviction. “Cross’s prior conviction exposed him to a prison term of two, four, or five years instead of two, three, or four years.” (Cross, supra, at p. 141.)
The Supreme Court held that because Cross had admitted “ ‘every fact necessary to imposition of the additional punishment other than conviction of the underlying offense’ [citation] …,” he was entitled to receive Boykin-Tahl warnings before he made this admission.” (Cross, supra, 61 Cal.4th at p. 174.)
D. Application
The Attorney General seeks to distinguish Cross because in that case the 273.5, subdivision (f) “enhancement was charged as a separate allegation” whereas here defendant was charged with the crime of inflicting corporal injury with a prior under subdivision (f). We find this to be a distinction without a difference. Whether subdivision (f) is properly regarded as an enhancement to the crime described in subdivision (a) (as it was charged in Cross) or, alternatively, is its own “aggravated offense” (as it was charged in this case) is immaterial. (Cross, supra, 61 Cal.4th at pp. 175–176.) Cross was entitled to Boykin-Tahl advisements because his stipulation “admitted ‘every fact necessary to imposition of the additional punishment other than conviction of the underlying offense’ [citation] ….” (Cross, supra, 61 Cal.4th at p. 174, italics added.) Defendant in the present case was entitled to the advisements for the same reason. That the information in this case stylized subdivision (f) as a distinct crime (i.e., corporal injury “with a prior”) while the charging document in Cross expressed the applicability of subdivision (f) as a separate allegation, does not alter the dispositive fact that the defendant’s stipulation in this case “admitted ‘every fact necessary to imposition of the additional punishment other than conviction of the underlying offense’ [citation] ….” (Cross, supra, at p. 174.) Consequently, defendant was entitled to Boykin-Tahl advisements and their absence from the record requires reversal. Defendant may be retried. (See People v. Lloyd (2015) 236 Cal.App.4th 49, 53 [matter remanded for retrial after insufficient trial rights advisement]; see also People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1421.)

II. THE PARTIES CONCEDE THE PRIOR PRISON TERM ENHANCEMENT MUST BE STRICKEN
The information alleged a prior prison term enhancement under section 667.5, subdivision (b). Before trial, the defense made a motion to bifurcate. Specifically, defendant moved the court as follows:
“Defendant’s prior PC 273.5(a) from 2011 is anticipated to be used by the Government to both establish the PC 273.5(f)(1) enhancement and to establish his prison prior. Given the prejudice which would result should the jury hear evidence of Defendant’s prior 2011 conviction, the Court should bifurcate that portion of the proceedings from the guilt phase initially to be tried by the jury.” (Italics added.)
The court granted the motion. However, it seems the bifurcated proceedings never occurred. Nonetheless, at sentencing, the court sentenced defendant to one year on the prior prison term enhancement.
The Attorney General concedes the enhancement must be stricken, absent a proper true finding or sufficient admission by defendant. We accept this concession and order the sentence on the prior prison term enhancement stricken. The enhancement may be tried on remand. (Cf. People v. Miller (2008) 164 Cal.App.4th 653, 668.)
Defendant objects to permitting trial of the prison prior on remand, arguing that such a disposition is barred by res judicata. “ ‘[T]he doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.’ [Citation.]” (People v. Barragan (2004) 32 Cal.4th 236, 252, some italics removed.) “ ‘The prerequisite elements for applying the doctrine … are …: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]’ [Citation.]” (Id. at p. 253, italics added.)
Defendant contends the first element is satisfied and argues “the prison prior allegation was not actually litigated at trial, even though it could have been.” Not so. The prison prior allegation could not have been litigated at the jury trial because it had been bifurcated from that proceeding. As a result, the prior prison term enhancement was not “at issue” in the jury trial, nor was it “litigated” therein. The first res judicata element is not satisfied.
DISPOSITION
Defendant’s conviction and sentence on count 1 is reversed, and the sentence imposed on the prior prison term enhancement is stricken. Count 1 (including the averment that defendant violated section 273.5, subd. (a), and the averment that subd. (f) applies) may be retried, and the prior prison term enhancement may be tried on remand. In all other respects, the judgment is affirmed.