Filed 10/22/18 P. v. Emidy CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Jeannie M. Joseph, Judge. Reversed and remanded.

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Christine Livingston Bergman and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

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Kevin Keegen Emidy[1] correctly argues this is a “silent-record” case reflecting no advisement of his trial rights concerning prior conviction and prior prison term allegations before the trial court asked for, and received, his admissions of those allegations. Under the totality of the circumstances, we cannot determine that in entering those admissions, Emidy made a knowing and intelligent waiver of his trial rights. (People v. Farwell (2018) 5 Cal.5th 295, 303 (Farwell).) We therefore reverse the court’s true findings regarding those enhancement allegations and remand for a new sentencing hearing, pending the prosecutor’s election to retry the prior conviction and prior prison term allegations.

FACTUAL AND PROCEDURAL BACKGROUND

A jury trial in February 2017 disclosed the following facts supporting Emidy’s conviction of several drug offenses and related charges, which he does not challenge. In August 2016, officers from the Irvine Police Department placed Emidy’s apartment under surveillance, followed him as he drove away, and pulled him over when he engaged in evasive maneuvers and committed numerous traffic violations. A search of Emidy’s front pants pocket uncovered a bindle of 3.49 grams of methamphetamine and $824 cash, half of a pill of Xanax from his back pocket, and 4.315 grams of heroin from his sock. The officers found text messages on Emidy’s phone and drug paraphernalia in the vehicle indicative of sales activity. During the stop, the phone, which the officers recovered from the driver’s seat, appeared to still be connected in an ongoing call to Jordan O’Neil, the registered owner of the vehicle.

The police returned that evening to surveil the apartment Emidy and O’Neil shared, and they apprehended O’Neil at the door after she opened it with her key. When she was thereafter searched, O’Neil had 16.593 grams of heroin in her shorts. The officers also found text messages on her phone from an unknown sender urging O’Neil to hide “‘[e]verything in that house, put in the safe. Foil, tubes, everything. Fuck. This is all fucking bad.’” Other text messages on O’Neil’s phone related to selling drugs. Inside the apartment, the officers found an open safe containing 46.8 grams of methamphetamine and drug paraphernalia used to smoke heroin and methamphetamine, including glass pipes and tin foil. O’Neil’s purse, discovered in the master bedroom, contained just over $1,000 in cash; the officers also found money orders in various denominations and a used hypodermic needle in a trash can during their search of the apartment.

Charges against O’Neil were resolved while those against Emidy proceeded to trial. The jury convicted Emidy of possession of heroin for sale (count 1; Health & Saf. Code, § 11351), possession of methamphetamine for sale (count 2; Health & Saf. Code, § 11378), conspiracy to commit possession for sale of a controlled substance (count 3; Pen. Code, § 182, subd. (a)(1); all further statutory references are to the Penal Code unless noted), conspiracy to destroy or conceal evidence (count 4; § 182, subd. (a)(1)), and misdemeanor possession of controlled-substance paraphernalia (count 7; Health & Saf. Code, § 11364, subd. (a)).[2] The jury found true as to count 2 a quantity enhancement allegation for more than 28.5 grams of methamphetamine. (§ 1203.073, subd. (b)(2).)

Before trial, the court granted Emidy’s request to bifurcate two issues. First, the court bifurcated enhancement allegations for numerous alleged prior convictions (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)), including two prior prison terms (§ 667.5, subd. (b)). The alleged priors consisted of seven robbery counts from a 2008 case and a burglary conviction in 2005. Secondly, the court bifurcated a so-called crime-bail-crime enhancement (§ 12022.1, subd. (b)) alleging Emidy committed the drug offenses while released on his own recognizance for an earlier offense, possession of brass knuckles alleged as a felony (§ 21810), which was still pending (16HF0320) at the time of Emidy’s jury trial.

After the jury’s verdict, the trial court accepted Emidy’s admissions on the prior convictions, but with no discussion of his trial rights regarding those allegations. The court also accepted Emidy’s admission of the crime-bail-crime allegation. The court simply queried, after noting “we’re outside the presence of the jury,” “[I]s the defendant going to be admitting those at this time?” In a colloquy between the court, the prosecutor, and Emidy, Emidy admitted the prior felony convictions, and the crime-bail-crime allegation. Later that same day, on returning for the afternoon session, the court, with the requisite advisement of rights, accepted Emidy’s guilty felony plea on the brass knuckles offense, which was joined with a misdemeanor driving on a suspended license count to which Emidy also pleaded guilty.

Two months later, in April 2017, the trial court in a single hearing sentenced Emidy on both adjudications, first on the offenses and enhancement allegations related to his drug arrest, and then on Emidy’s brass knuckles and suspended license guilty plea. For the drug counts and related offenses and allegations, the court imposed an aggregate sentence of six years, including two-years on the crime-bail-crime enhancement. The court, however, in imposing sentence on the brass knuckles offense, reduced Emidy’s felony conviction to a misdemeanor (§ 17, subd. (b)), and imposed a one-year concurrent sentence.

In imposing sentence, the trial court observed immediately before reducing the brass knuckles offense to a misdemeanor, “I think six years is more than enough. Not more than enough. It’s just about right, I guess—I guess for what you’re doing.” As to the sentence on the drug offenses, the court earlier observed: “I’m choosing low end on one and medium on the other for a few reasons. Primarily because, Mr. Emidy, you have quite a prior record. I think that’s a factor in aggravation. An inability to comply with probation. However, I think you have some factors in mitigation as well. I did read the pre-sentence report and I do find that your childhood was not good. It was terrible and I think addiction had a lot to do with this offense. And it’s for that reason that I’m also mitigating your sentence and chose the low end and the mid-range on counts 1 and 2 respectively.” The court also noted as “other reasons” for its sentencing choices that “this was a medium scale operation. You are not a king p[i]n, you are not completely small, understand, but sort of medium to small so that’s a factor taken into consideration.”

DISCUSSION

Emidy challenges the trial court’s failure to advise him of his rights before taking his admissions on his prior convictions. A criminal defendant’s plea of guilty or inculpatory admission requires a personal 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. (Boykin v. Alabama (1969) 395 U.S. 238, 243 (Boykin).) 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 or admission. (In re Tahl (1969) 1 Cal.3d 122, 132 (Tahl).) “[E]ach 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.” (Ibid.) For a waiver of these constitutional rights to be valid, it must be knowing, intelligent, and voluntary. (Boykin, at p. 242.)

The Boykin-Tahl advisements must be given before the trial court may accept a criminal defendant’s admission that he or she has suffered 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.)

This is a silent-record case. “[S]ilent-record cases are those that show no express advisement or waiver of the Boykin-Tahl rights before a defendant’s admission of a prior conviction.” (People v. Mosby (2004) 33 Cal.4th 353, 361.) These cases typically arise when a “jury trial on a substantive offense preceded the defendant[’s] admissions of prior convictions. [D]efendants were not told on the record of their right to trial to determine the truth of a prior conviction allegation. Nor did they expressly waive their right to trial. In such cases, in which the defendant was not advised of the right to have a trial on an alleged prior conviction, [the appellate court] cannot infer that in admitting the prior the defendant has knowingly and intelligently waived that right as well as the associated rights to silence and confrontation of witnesses.” (Id. at p. 362.) Absent any advisement of rights, it is “impossible to determine” whether the defendant “not only was aware of these rights, but was also prepared to waive them as a condition to admitting his prior offenses.” (People v. Johnson (1993) 15 Cal.App.4th 169, 178.)

The Attorney General argues, as Emidy accurately rephrases it, that Emidy’s knowledge and implicit waiver of his rights “may be inferred from bits and pieces . . . scattered throughout the record.” The Attorney General relies on: (1) Emidy’s arraignment on the charges, to which he pleaded not guilty; (2) his bare request to bifurcate the issue of his prior convictions to follow the trial on his substantive offenses; (3) the trial court’s advisement that he had a right to a jury trial on his current and pending felony charges within 60 days; (4) the trial court’s advisement at the close of the prosecution’s case of his right to testify or remain silent; and (5) the fact that Emidy was represented by counsel and had “substantial experience with the criminal justice system.”

In reviewing the record, we find in none of these instances any on-record reference to Emidy’s trial rights regarding prior convictions. “Truly silent-record cases are those that show no express advisement or waiver of Boykin-Tahl rights before a defendant’s admission of a prior conviction.” (Mosby, supra, 33 Cal.4th at p. 361.) In such cases, as here, “defendants were not told on the record of their right to trial to determine the truth of a prior conviction allegation.” (Mosby, at p. 362.) Nevertheless, the totality of the circumstances test still applies as to whether the defendant made a knowing and intelligent waiver of his or her rights. (Farwell, supra, 5 Cal.5th at p. 303.) But without any suggestion that Emidy’s trial rights extended to the prior conviction allegations, we see no basis to infer a knowing and intelligent waiver of those rights. As the high court observed in Farwell, “It bears emphasis that silent record cases will face their own practical hurdle. The failure to advise a defendant of any trial rights will make it much harder to demonstrate a plea was properly accepted.” (Id. at p. 306.) The error here requires reversal of the prior conviction findings (People v. Cross (2015) 61 Cal.4th 164, 180; People v. Little (2004) 115 Cal.App.4th 766, 779-780), but jeopardy does not attach. The allegations may be retried. (Monge v. California (1998) 524 U.S. 721; People v. Monge (1997) 16 Cal.4th 826.)

We therefore vacate Emidy’s sentence and remand the case for retrial of the prior conviction allegations at the prosecutor’s election and, following retrial, if any, for resentencing. (People v. Fielder (2004) 114 Cal.App.4th 1221, 1234.)

The necessity of resentencing partially moots Emidy’s other appellate argument. He contends the trial court erred in imposing the crime-bail-crime enhancement when the court subsequently exercised its discretion under section 17 to reduce Emidy’s underlying brass knuckles felony conviction to a misdemeanor. He is correct. An enhancement under section 12022.1 for committing a new offense while on bail or while released on one’s own recognizance may not be imposed unless the defendant is convicted of both the primary and secondary offenses, and both are finally adjudicated to be felonies. (In re Ramey (1999) 70 Cal.App.4th 508, 512 (Ramey); In re Jovan B. (1993) 6 Cal.4th 801, 814; People v. McClanahan (1992) 3 Cal.4th 860, 868.)

Emidy contends the crime-bail-crime enhancement must be permanently stayed or stricken. The necessity of resentencing moots this question because the trial court may not impose the crime-bail-crime enhancement on resentencing. Specifically, we observe that the court may not revisit its reduction of Emidy’s brass knuckles guilty plea conviction to a misdemeanor because neither Emidy nor the People filed a notice of appeal in that case (16HF0320), and the time to appeal has long passed. Consequently, as the court in Ramey colorfully put it, “Like the Cheshire Cat, the felony count [necessary for a subsequent crime-bail-crime enhancement has] disappeared from sight, leaving nothing behind but a mischievous grin.” (Ramey, supra, 70 Cal.App.4th at p. 512.)

It is also true, however, that the trial court’s sentence here included not only the crime-bail-crime enhancement, but also a mix of a low-term, mid-term, concurrent sentencing, and stays on the various counts and allegations against Emidy. Nothing restricts the court from exercising its discretion to reach a different mix totaling the six years the court viewed as “just about right,” or such other outcome as the court determines in its discretion based on the facts and argument introduced in a new sentencing hearing on remand.

DISPOSITION

The trial court’s true finding on the prior felony conviction allegations is reversed. Emidy may be retried at the prosecutor’s election on those allegations within 60 days of the remittitur from this court. Upon retrial, if any, or in the absence of retrial, the court shall conduct a new sentencing hearing and then forward a new abstract of judgment to the Department of Corrections and Rehabilitation.

GOETHALS, J.

WE CONCUR:

MOORE, ACTING P. J.

THOMPSON, J.