Filed 3/30/22 P. v. Herdt CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Jared Herdt was convicted of two bank robberies and admitted having five prior strike convictions, all for bank robberies. For these crimes, Herdt was sentenced to an aggregate term of 50 years to life in prison. On appeal, Herdt contends that the judgment must be reversed because the trial court misled him to believe that he would receive a lenient sentence if he entered a “slow plea” to the robbery charges and admitted his prior convictions. We affirm the judgment.

BACKGROUND

I. The 2019 Bank Robberies

On the morning of September 7, 2019, a man went into a Wells Fargo Bank in Mill Valley, approached the counter and showed the teller a note while holding one hand inside his pocket in a manner suggesting he had a gun. The note said to give the man all the money in the drawers with no GPS and dye packs or else everyone would get shot. The teller and her manager feared for their life, believing they would be killed if they did not comply with the note. They gave the man $16,250 in cash and he left the scene on a red mountain bike.

The FBI obtained still photographs of the robber from bank surveillance cameras, which they used to make a “Wanted” poster. The director of a San Francisco re-entry facility for former federal prisoners recognized Herdt on the poster. She notified authorities that Herdt was on federal probation for robbery and was a registered sex offender, but she did not know his current location. Records pertaining to Herdt’s criminal history disclosed that his sex registration address was listed as homeless in Sacramento.

On the morning of September 14, 2019, a man went into a Wells Fargo Bank in Novato and approached the bank manager who was standing in the lobby. The man asked how much cash he could withdraw, stating he needed $14,000. The manager responded that the bank could not distribute that much money without prior notice, suggested that the man obtain a cashier’s check, and directed him to a teller. The manager noticed that the man kept one hand inside his jacket as if he was holding a gun or weapon, recalled seeing a notice about the robbery in Mill Valley, and attempted to signal the teller by mouthing the words “ ‘[p]ush the button.’ ” Noticing the interaction, the man told the teller “ ‘Don’t even think about it,’ ” then turned back toward the manager and asked for his name in an intimidating manner. The man handed the teller a note, which said something like “ ‘Don’t push the alarm,’ ” and told the teller to open the bank drawers. After the teller opened the bottom drawer and put cash on the counter, the man said he knew she had more and told her to “ ‘do both drawers.’ ” The teller handed over $6,013. The man put the cash and his note in his bag and left the bank.

On September 18, 2019, Sacramento detectives created a ruse to locate Herdt by leaving a message on his cell phone, requesting that he report to the station to complete paperwork regarding his sex offender registration. When Herdt arrived at the station on the 19th, he was detained. Later that day, Novato police placed Herdt under arrest. From his van, police recovered a jacket, bag, hat, and sunglasses that were “consistent” with photographs from the bank robberies. They also recovered a $10,000 “money band” with a Wells Fargo Mill Valley stamp on it.

Herdt was transported to the Novato Police Station, where he participated in a recorded interview after waiving his rights under Miranda v. Arizona (1966) 384 U.S. 436. Herdt expressed concern about federal prosecution and asked if his cooperation would ensure that his case would be handled by state authorities. The officer informed Herdt that she could not make “any promises of any kind.” Herdt responded that he understood he was not in a good position to bargain, stating: “ ‘I mean, you pretty much got me dead to rights. You know, I’ll admit that. I mean, evidence is there. I wasn’t smart enough to have the foresight to . . . take care of loose ends . . . so, basically, lemme just tell you then.’ ”

Herdt told the officer that he did not have motivation to live, and he was planning to jump off the Golden Gate Bridge when he decided that he might as well have a “ ‘good time’ ” first, which led him to the bank in Mill Valley. Herdt parked his van, rode his bike to the bank, committed the robbery and then drove back to Sacramento, where he left the bike at a homeless encampment and spent the $16,000 at a casino. Herdt admitted that he also committed the robbery in Novato and reported that he canvassed the area around the bank and planned how to avoid surveillance cameras. Herdt spent all the money he got from the Novato robbery at a casino. He told the officer he did not have a weapon during either robbery, but just kept his hand in his pocket so that witnesses would believe he had a gun. He also shared that he had a plan to commit another robbery the next weekend at a Chase Bank in Novato.

II. Pre-Trial Proceedings

In a September 2019 complaint, Herdt was charged with two counts of second degree robbery. (Pen. Code § 211; statutory references are to this code unless otherwise indicated.) Both counts were accompanied by allegations that the crime was a serious felony and a violent felony, and constitutes a strike offense. (§§ 1192.7, 667.5, 1170.12, subd. (b).) The complaint contained allegations that Herdt has five prior felony convictions for bank robbery that all constitute strikes under California law. (18 U.S.C. § 2113, subd. (a); Pen. Code, § 1170.12, subd. (b).) Herdt waived formal arraignment on the complaint and deferred entry of a plea.

In October 2019, Herdt made a motion to remove his appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Herdt complained that he wanted to plead guilty, but his attorney was advising him not to. Herdt thought it would be “counterintuitive” to plead not guilty because he had “already cooperated fully with the authorities on this investigation.” The court explained why pleading not guilty at an early stage was reasonable and potentially beneficial, and then asked if Herdt wanted to move forward with his current counsel, to which he responded “Yeah, sure.” Defense counsel then shared her view that Herdt’s primary concern was that he did not want to appear disingenuous; he had been forthcoming with police and wanted to be “as helpful as possible.” The court found that the Marsden motion was either withdrawn or denied. After the prosecutor joined the hearing, Herdt entered pleas of not guilty and denied all priors and special allegations.

In November 2019, Herdt’s case was called for a preliminary hearing. Defense counsel inquired about a postponement due to a possible plea bargain. After the court stated it was not inclined to postpone, Herdt waived his right to a preliminary hearing. Before agreeing to the waiver, defense counsel stated that Herdt wanted to make sure the court knew Herdt had been cooperative with the police and that the current charges did not involve weapons or any injuries. After the preliminary hearing was waived, Herdt was held to answer, and the matter was continued. On November 19, the People filed an information containing the same charges and allegations that appeared in the complaint. Herdt entered pleas of not guilty, denied all allegations, and waived time for a jury trial.

In March 2020, the court held a hearing on a defense motion to strike four of the five prior strike allegations pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The defense argued it would be fundamentally unfair to sentence Herdt to 25 years to life or 50 years to life for being a “skateboard bandit.” Defense counsel proposed that if the court were to strike four of the five strike priors, it could impose a 20-year sentence, which would be reasonable. The prosecutor opposed the motion, arguing that the record of Herdt’s priors indicates that he is a violent criminal.

The trial court denied the Romero motion on the ground that it could not find that striking Herdt’s prior convictions would serve the interests of justice. The court explained that a 20-year sentence “might, under some circumstances, seem like a reasonable sentence for someone who is convicted of a . . . couple of bank robberies,” but the court was not in a position to decide prior to trial or entry of a plea what sentence would be reasonable for this defendant. Further, the court found, information that was before the court did not weigh in favor of granting the motion, including Herdt’s “abysmal” record and multiple prior bank robberies. The court also pointed out that defense counsel had miscalculated 20 years as the guideline sentence that would apply if only one of Herdt’s prior strikes was considered; since a defendant would not receive “full” terms for two robberies, but a midterm for the second, the guideline sentence would be 12 years, not 20.

Defense counsel apologized for her miscalculation but argued the Romero motion was ripe because there was no intention or need to have a jury trial. In response, the court stated: “I can’t make any promises at pretrial to give him some number.” It opined further that if Herdt “wanted to plead open,” and the defense could propose a “mechanism” for calculating a reasonable sentence, the court could reconsider the Romero motion.

In June 2020, Herdt made another Marsden motion. Herdt complained that his attorney was neglecting him and not doing the legal work he was entitled to receive. Defense counsel outlined work she had done and apologized for not being more communicative. Counsel suggested that Herdt’s frustrations stemmed from the fact that he had changed his mind about what he wanted; initially, Herdt was very depressed and just wanted to plead guilty, but after waiving the preliminary hearing, Herdt wanted a rigorous defense and to dispute everything. Herdt denied that he wanted a rigorous defense. He told the court his guilt was “a foregone conclusion,” and his “whole motive” was to expedite the case. Herdt stated that he made a Marsden motion despite not wanting a rigorous defense because it seemed like his counsel did not “have any special interest in this case.” The court encouraged Herdt and his counsel to find ways to communicate better but stated that it had not heard enough to justify removing counsel.

III. Herdt’s Slow Plea and Admissions

In August 2020, the court held a trial setting conference where Herdt requested a court trial, which was set for September 15. At the September 15 hearing, the court requested clarification about the nature of the proceeding, pointing out that the matter had been set as a court trial but there were prior discussions about submitting the case on the police reports without argument. The court inquired whether the defense was anticipating a “slow plea” or if it intended to contest guilt after the presentation of agreed upon evidence. Defense counsel’s initial response was that Herdt might dispute the force or fear element of robbery, but after she consulted privately with Herdt, counsel advised the court that there would be “no argument” and Herdt would enter a slow plea.

Before proceeding, the court asked if Herdt had questions and Herdt responded that he did not know the meaning of a slow plea. The court explained that the term describes a process under which the defendant does not plead guilty but submits the matter for the court to decide under circumstances that would be tantamount to a guilty plea because, among other things, the defendant waives constitutional rights that apply at trial. The court also told Herdt that “by simply giving the Court police reports and not doing anything further, it’s probably a forgone conclusion that you’re going to be found guilty.” Herdt confirmed that he understood the process and wanted to use it here.

Then the court addressed with Herdt the constitutional rights Herdt would waive by participating in a slow plea. During the colloquy, Herdt expressly waived his rights to a speedy, public jury trial, to have witnesses and evidence presented in a trial setting, to present a defense, to confront and cross-examine witnesses, and to remain silent or, should he choose, to testify. Herdt also affirmed that he understood it was likely that he would be found guilty.

Next, the court discussed evidence that would be presented to the court pursuant to the parties’ agreement. To prove the current charges, the People would submit police reports from Mill Valley and Novato. Evidence regarding Herdt’s prior convictions had been ordered but not yet received, so the court inquired whether the defense wanted to bifurcate the hearing regarding the prior conviction allegations or continue the entire case to a later date. Defense counsel stated that she would like a continuance, but she did not know how Herdt would feel about that.

The court presented the options to Herdt. Herdt responded by asking if the priors were “in question as to [his] guilt.” The court stated that it did not know “anything” about Herdt’s priors or if they were “in question.” It appeared that they were not in question in the “minds of the attorneys,” but the prosecution had to present evidence to the court and had not yet received the formal documents, so the court intended to grant them a continuance.

Herdt stated that he did not understand how the priors had a bearing on the case. Pointing out that Herdt had probably already discussed the matter in detail with defense counsel, the court stated that prior strikes had been alleged and told Herdt that “if you have those prior strike offenses, then that adds a consequence on the sentence that you could receive.” Herdt said that it seemed like the priors would only be relevant to sentencing “not during . . . the trial of this case.” The court explained that Herdt had a right to a trial of the prior conviction allegations as well, with all the constitutional rights they had previously discussed. Then, Herdt stated that he wanted to proceed with a trial of the current charges.

Noting that Herdt had questioned why his priors were relevant, the court then stated that it would advise Herdt about the maximum sentence he was facing. The prosecutor stated that two counts of robbery were alleged, and the “maximum exposure” for each count was 25 years to life. The court then explained to Herdt that, although the sentence for robbery is not 25 years to life, the sentence for robbery when you have two or more prior qualifying strike convictions is 25 to life, and in this case the People alleged that Herdt has five prior qualifying strike convictions. Therefore, the court told Herdt, “the sentence you would be subjecting yourself here today is 50 years to life for the two underlying charges.” The court told Herdt to consider this “maximum” sentence when deciding whether to participate in “the process that we’ve defined here today.” Herdt stated that he understood and wanted to proceed.

After a break, copies of police reports regarding the Mill Valley and Novato bank robberies, each with multiple attachments, were admitted without objection. The prosecutor stated that the only other evidence the People would offer pertained to Herdt’s priors. The court responded that it would bifurcate the hearing on the priors. The defense offered no evidence and neither side presented argument. The court found Herdt guilty of both counts of second degree robbery.

Then the court proposed continuing the matter for a week for a trial or slow-plea submission on the prior conviction allegations. The prosecutor and defense counsel agreed. However, Herdt stated that he wanted to admit the priors were true. Herdt waived his constitutional rights to a trial of the prior conviction allegations and admitted having five strike priors. The court found the prior conviction allegations were true and continued the matter for sentencing.

IV. Herdt’s Sentence

Herdt was sentenced on October 20, 2020. The prosecutor asked the court to follow the probation report recommendation to impose an aggregate sentence of 50 years to life. The defense asked for reconsideration of its Romero motion. Alternatively, the defense requested that the court stay sentence for one of Herdt’s current convictions. Defense counsel argued that a 25-year-to-life sentence was appropriate because that had been the prosecutor’s original plea offer and the only reason Herdt had not accepted it was because of his mental health challenges.

The court expressed empathy for Herdt, but stated that it would impose a sentence that was commensurate with Herdt’s history and the crimes he committed. The court also denied requests to either strike or dismiss Herdt’s prior convictions, finding that the grounds for granting such relief had not been established. Instead, the court imposed consecutive terms of 25 years to life for each of Herdt’s robbery convictions, for an aggregate sentence of 50 years to life in prison.

DISCUSSION

Herdt contends that the judgment must be reversed because the trial court provided erroneous advice about the consequences of his slow plea and admissions by implying that Herdt would receive a more lenient sentence if he waived his constitutional trial rights. As we will explain, this claim fails for multiple reasons.

I. Guiding Principles

“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.” (People v. Cross (2015) 61 Cal.4th 164, 170.) The record must demonstrate that the defendant voluntarily and intelligently waived these constitutional trial rights. (People v. Lopez (2019) 31 Cal.App.5th 55, 63.)

When the defendant agrees to submit his or her case for decision pursuant to a procedure that is tantamount to a guilty plea, the procedure must include advisement and waiver of the defendant’s constitutional trial rights. (People v. Cunningham (2015) 61 Cal.4th 609, 637–638.) This type of submission, sometimes referred to as a “ ‘ “slow plea” of guilty’ ” includes the situation here, where the defendant submits the issue of guilt on the basis of agreed upon evidence, such as police reports. (Id. at p. 638; see also People v. Farwell (2018) 5 Cal.5th 295, 308 (Farwell) [a submission that is tantamount to a guilty plea requires a valid waiver of the defendant’s constitutional trial rights].)

The criminal defendant’s trial rights are commonly referred to as Boykin-Tahl rights. (Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.) Proper Boykin-Tahl advisements admonish the defendant of “both the constitutional rights that are being waived and the direct consequences of the plea.” (People v. Walker (1991) 54 Cal.3d 1013, 1022 (Walker), clarified on another ground in People v. Villalobos (2012) 54 Cal.4th 177, 183; see also In re Moser (1993) 6 Cal.4th 342, 351 (Moser).) Unlike the admonition required to waive constitutional rights, advisement regarding the consequences of a plea is not constitutionally mandated but is a judicially declared rule of criminal procedure. (Walker, at p. 1022.) Nevertheless, in all cases in which the defendant seeks to plead guilty or to enter a slow plea tantamount to a guilty plea, the defendant must be advised of his trial rights and of the direct consequences of conviction, including the permissible range of punishment. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605.)

A valid admission of a prior conviction also requires advisement and waiver of the defendant’s Boykin-Tahl rights. (People v. Lloyd (2015) 236 Cal.App.4th 49, 57.) The admission is knowing and voluntary when the record shows the defendant was advised of the constitutional protections being waived by the admission and of the penalties imposed as a consequence of the admission. (Ibid.)

II. Herdt Was Not Misadvised About the Consequences

Of His Slow Plea and Admissions

Herdt contends the trial court misadvised him because its admonitions misled Herdt to expect less than a maximum sentence if he entered a slow plea and admitted the priors. Herdt forfeited this claim by failing to make a timely objection in the trial court. (Walker, supra, 54 Cal.3d at pp. 1022–1023; People v. Wrice (1995) 38 Cal.App.4th 767, 770–771 (Wrice).) At the sentencing hearing, the defense moved for reconsideration of its Romero motion and defense counsel expressed regret about rejecting the prosecutor’s plea offer. But Herdt did not argue that he had expected a more lenient sentence. Even if Herdt had preserved this claim, it fails on its merits.

Herdt argues that the trial court’s admonition that Herdt could face a maximum sentence of 50 years to life was misleading because it implied falsely that the court (1) had discretion to impose less than a maximum sentence in this case, and (2) would exercise that discretion to impose a reduced sentence if Herdt entered a slow plea and admitted his priors. We address separately the flaws in each prong of this argument.

When the trial court admonished Herdt about the consequences of entering a slow plea, it did not state or imply that it had discretion to select from a range of possible sentences. Instead, it focused Herdt’s attention on the difference between the sentence for robbery and the sentence for robbery when you have two strikes, and then it explicitly advised Herdt that the sentence he “would be subjecting” himself to was 50 years to life. Later, when Herdt expressed his desire to admit his prior convictions, the court stated: “As I mentioned earlier, Mr. Herdt, by admitting these prior convictions, you’re taking the underlying sentence for those robberies, and those will be enhanced to amount to 25 years to life in prison for each one.” These advisements did not suggest that the court had discretion to impose a more lenient sentence.

Herdt disputes this conclusion, arguing that he was misled because the court “repeatedly” told him that 50 years to life was a “maximum” sentence he “could” receive, which suggested strongly that was not the sentence he would actually receive. But Herdt points to nothing in the slow plea colloquy where the court suggests Herdt was likely to receive less than the maximum sentence.

Before permitting Herdt to agree to the slow-plea submission, the court stated that it would advise him as to “the maximum possible sentence he’d be facing if convicted here.” It then told Herdt that the “sentence you would be subjecting yourself here today is 50 years to life for the two underlying charges.” After confirming with the prosecutor that there were no additional enhancement allegations that might impact the sentence, the court stated: “So, Mr. Herdt, the maximum you could receive here is 50 years to life if convicted of both offenses and the Court finds at least two of those prior convictions true.” (Italics added.)

This colloquy did not imply that the court had discretion or an intent to impose a lenient sentence. The court was obligated to advise Herdt that a direct consequence of the slow plea was to expose himself to the maximum possible sentence allowed by law. (See People v. Archer (2014) 230 Cal.App.4th 693, 702 [failure to advise defendant of maximum possible sentence is ground for motion to withdraw a plea].) So the court explained that 50 years to life was the “maximum” because that was the sentence Herdt was subjecting himself to if Herdt was convicted of the current charges and the court found that at least two of the prior strike allegations were true. Making a record of this required admonition was not error.

Even if the admonition did imply that the court had discretion to impose a lower sentence, that implication would not have been false. On appeal, Herdt argues that a 50-year-to-life sentence was mandatory under relevant provisions of the Three Strikes Law because Herdt has five prior strike convictions. (Citing § 667 subds. (c)(6) & (e)(2).) This argument ignores the trial court’s “discretion to dismiss a prior conviction alleged under the Three Strikes law.” (People v. Dryden (2021) 60 Cal.App.5th 1007, 1029; see § 1385, subd. (a); Romero, supra, 13 Cal.4th 497.) Herdt attempted to invoke that discretion by filing his Romero motion. When the court denied that motion, it acknowledged the possibility that it could strike prior strike convictions at a later date if evidence—which the court had not yet seen—supported that course of action. Those remarks were not false or misleading. At sentencing Herdt’s counsel did renew the Romero motion, and requested in the alternative that the court permanently stay the sentence on one count. In response, the trial court reviewed the evidence in mitigation, the number of prior robbery convictions, and the two convictions for which Herdt was to be sentenced, concluding, “I’m just not of a mind that that’s the appropriate thing to do here under the circumstances.” That is, the trial court recognized it had discretion and exercised that discretion to sentence Herdt to 50 years to life.

The second prong of Herdt’s argument also fails; the record does not support Herdt’s contention that he was actually misled by the trial court to believe that he would receive a lenient sentence if he entered a slow plea and/or admitted the strikes. Throughout the trial court proceedings, Herdt consistently maintained he was guilty and that the evidence proved his guilt. Despite his admissions, Herdt agreed to enter not guilty pleas pursuant to the advice of his counsel, but he still insisted on waiving his right to a preliminary hearing. Then, at the slow-plea hearing, Herdt was advised several times that he could be sentenced to 50 years to life. Herdt acknowledged this fact without saying or doing anything to indicate he expected a lower sentence.

Herdt contends the trial court misled him during the Romero hearing because, although the court denied Herdt’s motion, it expressed the view that a sentence of 20 years or even 12 years would be reasonable, given Herdt’s current crimes and prior history. The trial court expressed no such view. Defense counsel made a proposal for Herdt to “plead open” to the charges and have the court impose a 20-year sentence by striking four of Herdt’s strikes. The court pointed out that under that scenario, the sentence would be 12 years, not 20, and did not find that either term would be reasonable here. The court did comment “that 20-year sentence would be a reasonable sentence in the abstract,” but it followed that statement immediately with “I just can’t say that for certain now. [¶] That’s not the only consideration under the Romero line of cases. . . . [¶] And his record is really abysmal.” The court concluded, “[a]t this stage, under the factors outlined in the authorities, I can’t find that the interests of justice are served by striking any of” Herdt’s priors.

Herdt argues there is “abundant” evidence that he expected leniency and that this expectation motivated him to enter a slow plea. He refers us to comments defense counsel made during various hearings, which emphasized to the court that Herdt’s current offenses did not involve violence and that he had cooperated with law enforcement. Herdt also posits that evidence he rejected a plea bargain proves that he expected a more favorable outcome by using the slow-plea process. We accept for purposes of argument that Herdt hoped to garner favor with the court by appearing to be honest and cooperative. Some form of cooperation may have been his best option given the evidence of guilt, including his admission to police that they “ ‘pretty much got me dead to rights.’ ” Herdt may also have had a subjective expectation of leniency, but his expectation is not evidence that the trial court’s advisements regarding the consequences of a slow plea or admission were misleading. Herdt does not point to anything that the trial court said or did to mislead Herdt to expect a lenient sentence. That Herdt chose to reject a plea bargain from the prosecutor, gambling he would get a more favorable outcome from the court, does not entitle him to the lesser sentence.

Contending that he suffers from depression and other mental health problems, Herdt cites authority requiring trial courts to evaluate a defendant’s competency when presented with substantial evidence raising a reasonable doubt concerning the defendant’s competency to stand trial. (See e.g. People v. Rogers (2006) 39 Cal.4th 826, 847.) Without identifying substantial evidence raising a doubt about his ability to understand or participate in the slow-plea submission, Herdt suggests that his mental health problems may have prevented him from fully understanding the consequences of his slow plea and admissions. Such speculation is not borne out by the record, which shows that Herdt was fully capable of understanding the colloquy about his rights and that he was unequivocal in communicating his desire to enter a slow plea to the charges and to admit the strike priors.

Herdt contends that this case is analogous to People v. Spears (1984) 153 Cal.App.3d 79 (Spears). The two defendants in Spears entered guilty pleas pursuant to plea bargains that were negotiated in the presence of the trial court. (Id. at p. 84.) During those negotiations, the defendants were led to believe that probation was likely despite the fact that probation was statutorily disfavored for the offenses that the defendants were going to admit. (Ibid.) The court never advised either defendant about the statutory presumption against probation. (Id. at p. 87.) Before taking one defendant’s plea, the court expressly confirmed that the defendant was eligible for probation. (Id. at p. 83.) Further, the court’s admonition about the permissible range of sentences included a warning to “the defendants that if given probation, the terms and conditions of probation must be observed to avoid revocation.” (Ibid.) After the defendants entered guilty pleas but before sentencing, both made motions under section 1018 to withdraw their pleas, which the trial court denied. (Id. at p. 81.) The defendants were sentenced to prison terms, which they appealed. (Ibid.)

The Spears court found that the trial court abused its discretion by precluding the defendants from withdrawing their guilty pleas in violation of the statutory policy that “when in doubt, a prejudgment motion to withdraw a guilty plea should be granted.” (Spears, supra, 153 Cal.App.3d. at pp. 87–88.) The court reasoned that the trial court’s advice about the range of punishment was misleading “to the extent that the defendants had been permitted by the court to believe that probation was likely” because the advice included references to probation “without the slightest hint that there were statutory hurdles” that made such a sentence unlikely. (Id. at p. 87.) In reversing the judgment, the Spears court relied heavily on record evidence showing that probation had been mentioned to the defendants “as a viable alternative.” (Ibid.) Limiting its holding to the circumstances before it, the court held that a trial court “need[s] to advise a defendant that probation is disfavored when the plea and admissions make it so, and the defendant, counsel, and the court appear to consider probation ‘likely.’ ” (Ibid., italics omitted.)

In contrast to Spears, the present case does not involve a motion to withdraw a guilty plea prior to sentencing. Even after sentence was announced, the defense did not disavow Herdt’s slow plea or admissions, or even suggest that it had been misled to expect a more lenient sentence. Further, the advisement Herdt received about his maximum possible sentence is materially different than the advisement in Spears. For one thing, the Spears trial court expressly stated that the defendants could be sentenced to probation and acted as though that option was viable, whereas here the trial court said nothing in the plea colloquy to indicate that Herdt would receive a lenient sentence if he entered a slow plea or admitted the priors. Moreover, in Spears the record showed there was “a climate of ‘real anticipation’ that probation was likely.” (People v. Vento (1989) 208 Cal.App.3d 876, 879 [distinguishing Spears, which was decided by the same court].) Here, by contrast, the record does not show that anyone anticipated the slow-plea procedure would lead to Herdt receiving a more lenient sentence than he would have received had he invoked his jury trial rights.

III. Herdt Fails To Show Prejudice

Herdt’s claim of reversible error fails for the independent reason that he does not show prejudice. Because “the requirement that a trial court advise a defendant of the direct consequences of a guilty plea is regarded as a ‘judicially declared rule of criminal procedure,’ not a constitutionally compelled rule of due process . . . any error in accepting a plea without such advisements may be set aside only if it is reasonably probable that appellant would have entered a different plea had he been properly advised.” (People v. McMillion (1992) 2 Cal.App.4th 1363, 1370; see Moser, supra, 6 Cal.4th at p. 352; Walker, supra, 54 Cal.3d at pp. 1022–1023.)

Here, the record shows that Herdt’s primary motivation has always been to admit his guilt instead of invoking his trial rights. He filed his first Marsden motion because he wanted to plead guilty against the advice of counsel. At his second Marsden hearing, Herdt insisted he did not want to contest his guilt or dispute any of the allegations that were made against him, and he was candid in acknowledging that he wanted only more attention from his attorney. At the slow-plea trial, Herdt rejected opportunities for continuances, insisting that he wanted the court to rule on the pending charges, and that he also wanted to admit all of his prior strike convictions without waiting to see the prosecutor’s evidence. Finally, Herdt made an impassioned speech after he was sentenced, but he did not use that platform to argue or even suggest that he had been misled to believe that he would receive a more lenient sentence, even though the judge had just stated, in sentencing him to 50 years to life, “I think you’ve been expecting that.” The reasonable probability established by these circumstances is that Herdt would have participated in the slow-plea submission and admitted the strike priors even if he had been advised explicitly to not expect a lenient sentence.

Herdt contends that a showing of prejudice is not required because a misleading advisement about the consequences of a plea constitutes structural error. Herdt bases this contention on People v. Collins (2001) 26 Cal.4th 297. In that case, the trial court told the defendant that he “would receive ‘some benefit’—of a nature that would be determined at a later date if [he] waived his right to a trial by jury.” (Id. at p. 304.) Our Supreme Court found that the trial court’s statement was an improper inducement, which rendered the jury trial waiver involuntary, and this structural defect required reversal of the judgment without a showing of prejudice. (Id. at pp. 312–313.) In the present case, the trial court did not state that Herdt would receive a benefit if he waived his right to a jury trial or otherwise induce Herdt to waive his trial rights.

Herdt makes the alternative argument that he was prejudiced because the totality of the circumstances “indicate” that he was misled by the court’s advisements. This theory of prejudice is unsound. If the transcript of a plea hearing does not show complete advisements and waivers of the defendant’s constitutional trial rights, the reviewing court will examine the totality of the circumstances to determine whether a defendant’s plea or admission was nevertheless intelligent and voluntary. (Farwell, supra, 5 Cal.5th at p. 304; People v. Mosby (2004) 33 Cal.4th 353, 361.) A different test applies to misadvisement regarding the consequences of a plea or admission, which is a ground for reversal only if it is reasonably probable that the defendant would not have entered the plea or made the admission if the misadvisement had not occurred. (Walker, supra, 54 Cal.3d at p. 1023; Wrice, supra, 38 Cal.App.4th at p. 771.) In any event, the totality of the circumstances that we have considered in this case establish that Herdt’s slow plea and admissions were knowing and voluntary.

DISPOSITION

The judgment is affirmed.

TUCHER, P.J.

WE CONCUR:

PETROU, J.

RODRÍGUEZ, J.

People v. Herdt (A161723)