Filed 10/11/18 P. v. Rodriquez CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Lassen)

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Defendant Luis Alberto Rodriguez appeals following his conviction by jury for possessing methamphetamine in state prison, focusing on the imposition of a prior strike sentence that followed. He raises a single issue on appeal: the voluntary and intelligent nature of his pretrial admissions to two prior strikes. He points to the seriously flawed advisement pursuant to Boykin v. Alabama (1969) 395 U.S. 238 (Boykin) and In re Tahl (1969) 1 Cal.3d 122 (Tahl) (Boykin/Tahl advisement) that accompanied his admissions. Because the errors in advisement, although serious, did not render defendant’s admissions involuntary or unknowing, we affirm the judgment.

BACKGROUND

Due to the limited nature of the claim on appeal, we need not address the facts of the case in any detail. It suffices to say that defendant was charged with possession of methamphetamine in state prison (Pen. Code, § 4573.6)[1] and two prior strikes, one murder and one robbery (§ 667, subds. (b) - (i)). The trial court granted defendant’s motion to bifurcate the trial on his prior convictions, and defendant admitted two prior strike convictions pretrial, contingent on his conviction by jury of the drug offense.

The admissions went like this:

“THE COURT: [S]o you want to take an admission to the priors at this time?

[DEFENSE COUNSEL]: Well, we have decided that that would probably be more expedient than if the Defendant is the [sic] found guilty having the jury wait to decide whether or not he wants to admit or deny them. [¶] So he understands the significance of it, that if he is found not guilty there’s no effect of him admitting to them now. That if, in fact, he is found guilty his admission is a matter of court record and we don’t have to have another trial on it.

[DISTRICT ATTORNEY]: And it could subject him to a 25 to life term on this case.

[DEFENSE COUNSEL]: Yes.

THE COURT: You understand that, [defendant]?

THE DEFENDANT: Yes, sir.

THE COURT: Do you have any questions about anything about that particular statement by counsel?

THE DEFENDANT: No, sir.

THE COURT: You have had an opportunity to talk to your counsel about the consequences of admitting and then being found guilty on the [sic] count 1, the consequences of the admission at that point, you understand that?

THE DEFENDANT: Yes, sir, I do.

THE COURT: Having that in mind do you still want to admit to the violations or the strike?

THE DEFENDANT: Yes.”

The court then asked the prosecutor to take the admission.

“[DISTRICT ATTORNEY]: [Defendant], it’s alleged in the Information that you have suffered a prior conviction for a violation of Penal Code Section 187, that’s murder, on July 9th, 2007 in case number SA, Sam Alfred, 060127 out of Los Angeles County. [¶] Do you admit that you suffered that prior conviction?

THE DEFENDANT: Yes, sir, I do.

[DISTRICT ATTORNEY]: It’s also alleged in the Information that you suffered a prior conviction for a violation of Penal Code Section 211, that is robbery, on December 1st, 2005, case number YA062143 out of the Superior Court of Los Angeles County. [¶] Do you admit that you suffered that conviction?

THE DEFENDANT: Yes, sir, I do.

[DISTRICT ATTORNEY]: And do you realize that your admissions of these priors could lead, if there’s a conviction in this new case, could lead to a new sentence of 25 to life being imposed upon you consecutive to the term you’re currently serving?

THE DEFENDANT: Yes, sir, I do.

[DISTRICT ATTORNEY]: Thank you.

THE COURT: Counsel join?

[DEFENSE COUNSEL]: Yes.

THE COURT: [D]o you have any questions . . . about what just occurred in the statements made by the District Attorney, anything that you didn’t understand?

THE DEFENDANT: No, sir.

THE COURT: All right. [¶] Also I would point out, and we have talked about it earlier . . . that these two admissions are conditioned on you being found guilty. Should that not occur and you are found not guilty then this admission would have no effect. [¶] Is that your understanding?

THE DEFENDANT: Yes, sir.

THE COURT: All right.

The Court finds the Defendant knowingly and intelligently waived his constitutional rights, understands the consequences of the admissions. I will accept the admissions as having been given freely and voluntarily. [¶] Anything further on that?

[DISTRICT ATTORNEY]: Yes, because the Court said that giving up [sic] the constitutional rights there were a few that I would like to go over. [¶] [Defendant], you understand that you can actually have a jury trial on whether you suffered those prior convictions or not?

THE DEFENDANT: Yes, sir, I do.

[DISTRICT ATTORNEY]: And you give up that right?

THE DEFENDANT: Yes, sir, I do.

[DISTRICT ATTORNEY]: Do you understand that you could call witnesses at that jury trial about your priors only, if you wanted to?

THE DEFENDANT: Yes, sir.

[DISTRICT ATTORNEY]: And you give up that right?

THE DEFENDANT: Yes, sir, I do.

[DISTRICT ATTORNEY]: You understand that after the jury comes back with a verdict, if it’s guilty you could have that same jury then deliberate about whether you suffered these prior convictions or not?

THE DEFENDANT: Yes, sir.

[DISTRICT ATTORNEY]: And you give up that right?

THE DEFENDANT: Yes, sir, I do.

[¶] . . . [¶]

THE COURT: Thank you. [¶] I knew that was missing. That’s why I said it the way I did. [¶] Also you can subpoena witnesses at that trial should that occur free of charge. Do you understand that? That’s the only thing you left out.

THE DEFENDANT: Yes, sir.

THE COURT: Any questions about those rights?

THE DEFENDANT: No, sir.

THE COURT: You’re going to give up those rights?

THE DEFENDANT: Yes, sir.

THE COURT: Counsel join in the waivers?

[DEFENSE COUNSEL]: Yes.”

The jury subsequently found defendant guilty of the drug charge. The trial court granted defendant’s motion to dismiss his robbery strike (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and sentenced him to the upper term of four years in prison doubled to eight years pursuant to the remaining strike.

DISCUSSION

Defendant contends the record does not show a voluntary and intelligent waiver of his constitutional rights due to the flawed and incomplete Boykin/Tahl advisement that we have set forth in full ante. We requested and received supplemental briefing on the recent decision of People v. Farwell (2018) 5 Cal.5th 295, in which our Supreme Court held that the totality of the circumstances test (People v. Howard (1992) 1 Cal.4th 1132) “applies in all circumstances where the court fails, either partially or completely, to advise and take waivers of the defendant’s trial rights before accepting a guilty plea” (Farwell, at p. 303.) Applying that test, we conclude that all circumstances taken together reveal that defendant’s waiver was voluntary and intelligent, because defendant clearly understood the rights he was waiving.

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 and obtain his or her waiver of each right before taking such a plea. (Boykin, supra, 395 U.S. at p. 243; In re 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. (Boykin, at p. 243.)

The Boykin/Tahl advisements must also be given before the trial court may accept a criminal defendant’s admission to prior 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 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, supra, 1 Cal.4th at p. 1175; People v. Mosby (2004) 33 Cal.4th 353, 360.)

Here, as the Attorney General concedes, defendant was not expressly advised of two of the three required rights. Although he was told of his right to jury trial and several other connected rights such as subpoenaing and calling witnesses, he was not told of his corresponding right to confront witnesses against him and privilege against self-incrimination. The advisement was seriously flawed. Therefore, we cannot assume a voluntary and intelligent waiver merely because the trial court so found, we must look to the totality of the circumstances. The focus of our analysis is not “whether the defendant received express rights advisements, and expressly waived them, [but] whether the defendant’s admission was intelligent and voluntary because it was given with an understanding of the rights waived.” (People v. Mosby, supra, 33 Cal.4th at p. 361, italics added.) We must go beyond the record of the plea colloquy and review the entire record to ascertain whether defendant understood the necessary rights. (Ibid.) “ ‘[A] defendant’s prior experience with the criminal justice system’ is . . . ‘relevant to the question of whether he knowingly waived constitutional rights.’ [Citation.] ‘That is so because previous experience in the criminal justice system is relevant to a recidivist’s ‘ “knowledge and sophistication regarding his [legal] rights.” ’ [Citations.]” (Id. at p. 365.)

Here, the prosecution correctly advised defendant of the maximum sentence, and defendant told the trial court he had discussed with his attorney and understood the consequences of admitting the prior convictions. Immediately after his admissions (in the same hearing), defendant was advised at length of his right to a jury trial on the priors, including the right to subpoena and call witnesses, and was asked again whether he understood and gave up those rights. Although the description of what a jury trial would afford defendant was incomplete, as the right to confront adverse witnesses and the privilege against self-incrimination were not explained, considering all the circumstances it was clear that defendant understood and gave up his right to a jury trial, with all its included rights and privileges.

Critical to our determination that defendant understood the rights he was waiving is his extensive prior experience within the criminal justice system. Although defendant waived preparation of a probation report, information from both the prosecutor and the Department of Corrections and Rehabilitation indicates that defendant had felony convictions from 2005, 2007, 2008, and 2012, as well as a juvenile adjudication from 2002. Presumably defendant either went to trial (and thus witnessed the rights and privileges trial afforded him) or waived his right to trial and pleaded guilty or no contest (and thus waived trial rights and privileges) as to each of these convictions. In short, defendant had either experienced at least one jury trial or had been admonished as to his trial rights and privileges when entering multiple pleas--or both. The totality of the circumstances shows defendant understood what he was waiving; his admissions were voluntary and intelligent.

DISPOSITION

The judgment is affirmed.

/s/

Duarte, J.

We concur:

/s/

Raye, P. J.

/s/

Butz, J.