P. v. Zamudio

Filed 10/26/06 P. v. Zamudio CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Gerardo Rincon Zamudio, Jr., is caught by the police with a gun in his car, and admits that the gun is his. He demands and receives a jury trial at which he offers no defense to the charge of possession of a firearm by a felon. (Pen. Code, § 12021, subd. (a)(1).) He is convicted. He appeals contending that his jury trial was tantamount to a "slow plea," and that the trial court erred by not obtaining a personal waiver of his right to testify in his own defense. We affirm.

FACTS

A vehicle driven by Zamudio was stopped by the police for failure to have a front license plate. A police officer decided to impound and search the vehicle when he discovered that Zamudio did not have a vehicle registration or a valid driver's license and had two pending arrest warrants. The officer also suspected that Zamudio may have been under the influence of drugs. After Zamudio admitted that there was a gun in the vehicle, the police officer found a loaded handgun under the driver's seat.

DISCUSSION

At trial, the defense rested without calling any witnesses. Zamudio claims the trial court had a sua sponte duty to inform him of his right to testify and obtain a waiver of that right before counsel rested. Established case law is to the contrary.

Although a defendant has a right to testify at his or her trial, even against the advice of counsel, a trial court is not required to advise the defendant of the right or to obtain an on-the-record waiver of the right. (People v. Bradford (1997) 15 Cal.4th 1229, 1332; People v. Alcala (1992) 4 Cal.4th 742, 805-806.) When defense counsel rests without calling the defendant as a witness, the trial court may presume the defendant has elected not to testify on advice of counsel, unless the court is aware of a conflict between defendant and counsel over that matter. (Ibid.) If the court's assumption is incorrect, defendant's remedy is not a personal waiver in open court, but a claim of ineffective assistance of counsel. (People v. Mosqueda (1970) 5 Cal.App.3d 540, 546.)

Here, the record shows no conflict between Zamudio and trial counsel or any desire by Zamudio to testify on his own behalf at trial. In particular, when counsel stated on the record that he would not be calling any witnesses, defendant voiced no objection.

Zamudio asserts that his failure to testify left the jury with no alternative to a guilty verdict, and argues that such circumstances are analogous to a guilty plea or a "slow plea" of guilty. No legal authority supports this argument.

Unquestionably, a defendant must knowingly waive his or her rights to a jury trial and to confront witnesses before a guilty plea. (See, e.g., People v. Mosby (2004) 33 Cal.4th 353, 356.) The same waivers are necessary when a defendant submits a case for decision on the preliminary hearing transcript or other documentation, a so-called "slow plea," if that submission is tantamount to a guilty plea. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605; see also People v. Sanchez (1995) 12 Cal.4th 1, 27.)

It should go without saying that a jury trial does not resemble a guilty plea or a slow plea. In a jury trial, the defendant exercises the rights that are waived when a defendant pleads guilty or submits the matter to a bench trial on the preliminary hearing transcript. Even a submission on a preliminary hearing transcript is not considered a slow plea when there has been significant cross-examination of witnesses at the preliminary hearing, or when defense counsel contests guilt based on the legal significance of undisputed facts. (People v. Sanchez, supra, 12 Cal.4th at p. 28; see also Bunnell v. Superior Court, supra, 13 Cal.3d at p. 605.)

At Zamudio's jury trial, defense counsel extensively cross-examined the arresting officer, and argued that Zamudio should not be convicted of the charged offense. Counsel's argument conceded the evidence would support a conviction for carrying a loaded firearm, a lesser offense, but the undisputed evidence did not provide many opportunities for defense counsel. The presence of overwhelming evidence of guilt, however, cannot be interpreted as tantamount to a guilty plea.

Zamudio claims he had a defense that was lost when he failed to testify at trial. He argues that his testimony could have supported self-defense or necessity as a justification for possessing the gun. Again, case law is to the contrary.

Temporary possession of a firearm in self-defense or in defense of others may be a defense to possession of a firearm by a felon. (People v. King (1978) 22 Cal.3d 12, 24.) To assert the defense, the felon must have a reasonable belief that he or she or another person "is in imminent peril of great bodily harm," and must be in possession of a firearm without "preconceived design . . . [and] for a period no longer than that in which the necessity or apparent necessity to use it in self-defense continues." (Ibid.; see also People v. Pepper (1996) 41 Cal.App.4th 1029, 1032.)

In this case, Zamudio relies solely on a statement in his probation report that "Zamudio told [police] officers he possessed the gun for his protection." But, even if Zamudio had testified that he had the firearm "for his protection" and embellished that assertion, the testimony would have been insufficient as a matter of law to establish any of the elements of the defense. A firearm belonging to Zamudio was discovered under the seat of a vehicle he was driving when stopped by the police. Even speculating that he may have anticipated the possibility of trouble later that day, Zamudio was in no imminent or other peril while carrying the firearm in his vehicle, and had been carrying the firearm for an indefinite period of time and by preconceived design.

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Timothy J. Staffel, Judge

Superior Court County of Santa Barbara

______________________________

Joseph D. Allen for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kyle Brodie, Adrian N. Tigmo, Deputy Attorneys General, for Plaintiff and Respondent.

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