P. v. Balbas



















Filed 12/11/12 P.
v. Balbas CA4/3











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NOT TO BE PUBLISHED IN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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



FOURTH APPELLATE DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. NICOLAS PAUL BALBAS, Defendant and Appellant.

G045803 (Super. Ct. No. 10WF1170) O P I N I O N

Appeal
from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge.
Affirmed.

Jeffrey
S. Kross, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Garrett Beaumont and Joy
Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

INTRODUCTION

Defendant
Nicolas Paul Balbas appeals from the judgment entered after a jury found him
guilty of two counts of attempted first degree robbery, one count of residential
burglary, and two counts of assault with a semiautomatic weapon, with related
enhancements. The trial court accepted
defendant’s admission of prior conviction allegations, and sentenced defendant
to a total prison term of 17 years.

Defendant
contends that although the trial court advised him of his right to a jury trial
on the prior conviction allegations before accepting defendant’s admission of
them, the trial court failed to also advise him of his constitutional rights to
remain silent and confront witnesses.
Defendant further contends the trial court also erred by failing to
completely advise him of the consequences of admitting the prior conviction
allegations.

We
affirm. After reviewing “the totality of
the circumstances” surrounding defendant’s admission of the prior conviction
allegations, we conclude his admission was voluntary and intelligent. (People
v. Mosby (2004) 33 Cal.4th 353, 360 (Mosby).) The trial court’s failure to advise defendant
of the consequences of admitting the prior conviction allegations did not
constitute prejudicial error because defendant failed to show it is reasonably
probable he would not have admitted them had he been so advised. (People
v. McClellan (1993) 6 Cal.4th 367,
378.)



FACTS

Around
3:00 a.m. on May 18, 2010, defendant’s friend, Kyle Valencia, called
defendant and invited him to come to a motel room to drink beers and “to
party.” Valencia, Jared Gaeta, and
Kimberly Norton were in the motel room when defendant and “this guy named Sean”
arrived. Sean pulled out a firearm,
pointed it at Gaeta, and yelled to everyone to be quiet and told Valencia to
get on the ground. Valencia complied and
got on the ground. Defendant and Sean
told Norton to get on the floor; she also did as she was told.

Norton
heard Sean say something like “get on the floor. Where is the money? If you don’t want a cap in him, you’ll tell
me.” Norton also heard defendant say
that she “better listen” to him and Sean.
Valencia told Norton to give them the money; Norton told everyone that
she did not have any money.

Defendant
straddled Valencia (who was on the ground), and seemed to either try to get
money or “just check [Valencia’s] person.”
Defendant punched Valencia in the head.
Gaeta grabbed the gun Sean was holding and struggled to get it out of
Sean’s hand. The gun discharged and a
bullet struck the door jamb. Defendant
and Sean ran off together.



PROCEDURAL
BACKGROUND

Defendant
was charged in an information with two counts of attempted first degree robbery
in violation of Penal Code sections 211, 212.5, subdivision (a), and
664, subdivision (a) (counts 1 and 2); one count of first degree
residential burglary in violation of Penal Code sections 459 and 460,
subdivision (a) (count 3); and two counts of assault with a
semiautomatic firearm in violation of Penal Code section 245,
subdivision (b) (counts 4 and 5).
(All further statutory references are to the Penal Code unless otherwise
specified.) As to count 3, the
information alleged that offense came within the meaning of section 462,
subdivision (a) and also alleged that a person who was not defendant’s
accomplice was present in the residence during the commission of the
residential burglary, within the meaning of section 667.5,
subdivision (c)(21). The information
further alleged that pursuant to section 12022, subdivision (a)(1),
defendant was armed with a firearm in the commission of counts 1, 2, and
3.

The
information contained prior conviction allegations. It alleged that pursuant to
sections 667, subdivisions (d) and (e)(1) and 1170.12,
subdivisions (b) and (c)(1), defendant was previously convicted of assault
with a deadly weapon in violation of section 245, subdivision (a)(1)
(a serious felony) in December 2004. The
information further alleged that in August 2005, defendant was convicted of
possession for sale of a controlled substance in violation of Health and Safety
Code section 11378, and, in January 2008, was convicted of second degree
burglary in violation of sections 459 and 460, subdivision (b); for
each of those two convictions, defendant served a separate prison term within
the meaning of section 667.5, subdivision (b).

The
jury found defendant guilty on all counts and also found true the enhancement
allegations as to those counts. The trial
court addressed resolution of the prior conviction allegations as follows:

“The
Court: Counsel, I’m sorry to have to
address this, but in the computer system, when they data input, they never
input your priors. So we’ve never
reached a decision. The jury is exactly
where they would be now that there’s been a conviction. [¶] Counsel, your client has a right to have
the jury determine whether or not the priors are true or your client can waive
that right and ask the court that I hear that evidence. [¶] What would your client like to do?

“[Defendant’s
counsel]: Can I see the packet?

“[The
prosecutor]: Yes.

“[Defendant’s
counsel]: I need a minute to—

“The
Court: Sure. [¶] Let’s hold off with the jury a
minute. [¶] Sir, what the jury would decide
is whether or not you’re the person who suffered these convictions only, not
what they mean, just so you know. That
is, whether or not they’re strikes. But
you have a right to have the jury determine whether or not you suffered these
convictions. [¶] Counsel, is it one—it’s
two convictions? A 245 and a 459?

“[The
prosecutor]: I believe there’s a
one-year prior[] as well, Your Honor.
There’s a—the 245 is the strike but then he—

“The
Court: But I’m just doing
convictions. That’s all the jury is going
to do. What they are, I take care
of. So what’s—how many cases is the jury
going to hear? What do you have in the
way of evidence?

“[The
prosecutor]: I have the 245 prior and
then I have the 969(b) packet for the 11377(a) and the 459‑460(b).

“The
Court: . . . I don’t see a[]
11377(a) charged.

“[The
prosecutor]: It is, Your Honor. It’s immediately after the 667(a)(1), the
first 667.5(b).

“The
Court: Please give me page and line.

“[The
prosecutor]: Page 3 starting at line 11.

“The
Court: Mine says ‘11378.’

“[The
prosecutor]: Yes.

“The
Court: You said ‘11377.’

“[The
prosecutor]: I misspoke, Your Honor.

“The
Court: Okay. Would your client—

“[Defendant’s
counsel]: My client would be fine if the
court was the fact finder with regard to the priors.

“The
Court: Whether or not he suffered the
conviction.

“[Defendant’s
counsel]: Correct.

“The
Court: In other words, we—is that okay
with you, sir?

“The
defendant: Yes, sir.

“The
Court: All right. Then what we’ll do at this point is excuse
the jury, get them on their way.”

After
the jury was dismissed and defendant’s counsel stated she had a “brief chance”
to look at the prior conviction documentation, the trial court offered the
following options on the bench trial of the prior conviction allegations. The court stated, “[w]e can do it
now—sometimes your client says, ‘no, I’m just going to admit the priors
anyway’—or we can do it on the date of sentencing. Whatever you’d like to do.”

Defendant’s
counsel asked for a moment and the court said,“[s]ure.” The reporter’s transcript notes a
“[d]iscussion [was] held off the record.”
Defendant’s counsel then stated, “at this time my client is inclined to admit
the priors.” Defendant admitted each
prior conviction allegation. The trial
court pointed out that one of the prior conviction allegations pertaining to
serving a prior prison term “[e]ssentially” was a “one‑year enhancement,”
to which defendant responded, “[o]kay.”
The court asked him if he “underst[oo]d that” and defendant responded,
“[y]es, sir.” The court also pointed out
that the section 245 prior conviction was a “strike prior,” and asked
whether “either side wish[ed] to be heard further on that.” The prosecutor and defendant’s counsel both
replied, “[n]o.”

The trial
court sentenced defendant to a total prison term of 17 years by imposing
(1) a 12‑year term on count 4 (double the middle term because
of the strike prior conviction); (2) a 12‑year term on count 5
(double the middle term for the strike prior conviction) to run concurrently
with the term imposed on count 4; (3) a four‑year term on
count 1 (double the middle term because of the strike prior conviction),
plus a one‑year consecutive term for the section 12022,
subdivision (a)(1) enhancement on count 1 (the court stayed execution
of this sentence pursuant to section 654); (4) a four‑year term
on count 2 (double the middle term because of the strike prior
conviction), plus a one‑year consecutive term for the section 12022,
subdivision (a)(1) enhancement on count 2 (the court stayed execution
of this sentence pursuant to section 654); (5) an eight‑year
term on count 3 (double the middle term because of the strike prior
conviction), plus a one‑year consecutive term for the section 12022,
subdivision (a)(1) enhancement, and a three‑year consecutive term
for the section 667.5, subdivision (c)(21) enhancement (the court
stayed execution of this sentence as well, pursuant to section 654); and
(6) a five‑year term for the December 2004 prior conviction to run
consecutively to the term imposed on count 4. The trial court struck the two prior
conviction allegations under section 667.5, subdivision (b) for
purposes of sentencing only.

Defendant
appealed.



DISCUSSION

The
trial court advised defendant of his right to a jury trial on the prior
conviction allegations. Initially,
defendant waived that right in favor of a bench trial. Shortly thereafter, defendant’s counsel
informed the trial court that defendant decided to admit the prior conviction
allegations. The court accepted
defendant’s admission. Defendant contends his admission of the
prior conviction allegations was not voluntary and intelligent because the
trial court failed to advise him of his privilege against self‑incrimination
and his right to confront witnesses at a trial on the prior conviction
allegations. Defendant further contends
the trial court failed to completely advise him of the potential consequences
of admitting the prior conviction allegations.
We reject each of defendant’s arguments for the reasons explained >post.

I.

The Totality of the Circumstances
Show Defendant Voluntarily and Intelligently Admitted the Prior Conviction
Allegations.

In >Mosby, supra, 33 Cal.4th at page 356, the California Supreme Court
explained: “Thirty years ago this court
held that before accepting a criminal defendant’s admission of a prior
conviction, the trial court must advise the defendant and obtain waivers of
(1) the right to a trial to determine the fact of the prior conviction,
(2) the right to remain silent, and (3) the right to confront adverse
witnesses. [Citation.] Proper advisement and waivers of these rights
in the record establish a defendant’s voluntary and intelligent admission of
the prior conviction. [Citations.] [¶] When, immediately after a jury verdict of
guilty, a defendant admits a prior conviction after being advised of and
waiving only the right to trial, can that admission be voluntary and
intelligent even though the defendant was not told of, and thus did not
expressly waive, the concomitant rights to remain silent and to confront
adverse witnesses? The answer is ‘yes,’
if the totality of the circumstances surrounding the admission supports such a
conclusion.”

In >Mosby, supra, 33 Cal.4th at page 364, a jury found the defendant guilty
of selling cocaine, and the trial court told the defendant he had a right to a
jury trial on a prior conviction allegation.
The defendant waived a jury trial and then admitted the truth of the
prior conviction allegation. (>Ibid.)
On appeal, the defendant contended the court committed reversible error
by not telling him of his rights to remain silent and to confront
witnesses. (Ibid.) The Court of Appeal
rejected the defendant’s argument on the ground it would exalt a formula “‘over
the very standard that the formula is supposed to serve (that the plea is
intelligent and voluntary) to suggest that a defendant, who has just finished a
contested jury trial, is nonetheless unaware that he is surrendering the
protections of such a trial’ when after being advised of the right to a trial
on an alleged prior conviction the defendant waives trial and admits the
prior.” (Ibid.) The Supreme Court
agreed with the Court of Appeal and affirmed the judgment of conviction. (Id.
at pp. 364, 366.)

The
Supreme Court further stated that “[a] review of the entire record also sheds
light on defendant’s understanding. For
instance, ‘a defendant’s prior experience with the criminal justice system’ is,
as the United States Supreme Court has concluded, ‘relevant to the question
[of] whether he knowingly waived constitutional rights.’ [Citation.]
This is so because previous experience in the criminal justice system is
relevant to a recidivist’s ‘“knowledge and sophistication regarding his [legal]
rights.”’ [Citations.] Here defendant’s prior conviction was based
on a plea of guilty, at which he would have received Boykin[ v. Alabama (1969)
395 U.S. 238]-[In re ]Tahl [(1969) 1
Cal.3d 122] advisements. As the Court of
Appeal here concluded: ‘[H]e knew he did
not have to admit [the prior conviction] but could have had a jury or court
trial, had just participated in a jury trial where he had confronted witnesses
and remained silent, and had experience in pleading guilty in the past, namely,
the very conviction that he was now admitting.’
[¶] Under the totality of the circumstances, the Court of Appeal did not
err in concluding that defendant voluntarily and intelligently admitted his
prior conviction despite being advised of and having waived only his right to
jury trial.” (Mosby, supra, 33 Cal.4th
at p. 365, fns. omitted.)

In the
instant case, as in Mosby, at the
time defendant admitted the prior conviction allegations, he had just undergone
a jury trial at which he invoked his privilege against self-incrimination by
not testifying. Through his trial
counsel, defendant also cross‑examined the prosecution’s witnesses. Defendant’s participation in that trial,
therefore, demonstrated his understanding of his constitutional privilege
against self‑incrimination and right to confront witnesses during a
trial.

Defendant
and the Attorney General disagree as to whether we must also analyze
defendant’s experience with the criminal justice system prior to the instant
case, before concluding defendant’s admission of the prior conviction
allegations was voluntary and intelligent.
The parties do not dispute that defendant has previously pleaded guilty
to several offenses before the instant case, as the probation report shows
defendant pleaded guilty to (1) one count of felony assault with a deadly
weapon or deadly force in 2004, (2) two felony drug offenses in 2005, and
(3) two felony burglaries and one attempted theft offense in 2008. We may presume defendant received complete
advisements before entering each guilty plea.
(Mosby, supra, 33 Cal.4th at p. 365 [“Here defendant’s prior
conviction was based on a plea of guilty, at which he would have received >Boykin‑Tahl advisements”]; >People v. Allen (1999) 21 Cal.4th 424,
426‑427 [a defendant may move to strike an alleged prior conviction on
the ground the trial court in the prior proceeding failed to observe the
defendant’s Boykin‑Tahl
rights].) Here, the consideration of
defendant’s prior experience in the criminal justice system further supports
the conclusion he voluntarily and intelligently admitted the prior conviction
allegations in this case.

In
defendant’s supplemental brief, he argues:
“As far as can be determined from the probation report, none of these
prior felonies had related enhancing allegations attached. Thus, while the probation report indicates
[defendant] had a significant amount of prior experience pleading guilty to >substantive offenses, it lacks any
indication he had any experience
admitting prior conviction sentencing
allegations following a jury trial on the substantive offenses. As far as can be determined from the
probation report, this was the first time [defendant] was involved in a jury
trial followed by a determination of a prior conviction allegation.” In Mosby,
supra, 33 Cal.4th at page 364,
the Supreme Court rejected this argument, stating: “Defendant argues that when he admitted the
prior conviction—immediately after a jury found him guilty of selling
cocaine—he would not necessarily have understood that trial of the alleged
prior would afford him the same rights that he had at the trial of the drug
charge. We note that unlike a trial on a
criminal charge, trial on a prior conviction is ‘simple and straightforward,’
often involving only a presentation by the prosecution ‘of a certified copy of
the prior conviction along with the defendant’s photograph [or] fingerprints’
and no defense evidence at all.
[Citation.] Here, defendant, who
was represented by counsel, had just
undergone a jury trial at which he did not testify, although his codefendant did. Thus, he not only would have known of, but
had just exercised, his right to remain silent at trial, forcing the
prosecution to prove he had sold cocaine.
And, because he had, through counsel, confronted witnesses at that
immediately concluded trial, he would have understood that at a trial he had
the right of confrontation.”

In sum,
after reviewing the totality of the circumstances, we conclude defendant
voluntarily and intelligently admitted the prior conviction allegations.

II.

The Trial Court’s Failure to
Completely Advise Defendant as to the Consequences of Admitting the Prior
Conviction Allegations Did Not Constitute Prejudicial Error.

In his
opening brief, without accompanying analysis or citation to legal authority,
defendant argues the trial court erred by failing to completely advise him of
the consequences that would follow his admission of the prior conviction
allegations.

In >People v. Villalobos (2012) 54 Cal.4th
177, 181-182, the California Supreme Court stated: “‘[B]efore taking a guilty plea the trial
court must admonish the defendant of both the constitutional rights that are
being waived and the direct consequences of the plea.’ [Citation.] . . . However, we have
held that because ‘advisement as to the consequences of a plea is not
constitutionally mandated,’ ‘the error is waived absent a timely
objection.’ [Citation.]” In People
v. Villalobos, the Supreme Court held, “defendant failed to object to the
restitution fine at or before sentencing; thus, the advisement error does not entitle
defendant to a remedy.” (>Id. at p. 182.)

Here,
defendant did not object to the trial court’s failure to advise him as to the
consequences of his admission to the prior conviction allegations. He first raised this issue on appeal. Hence, defendant’s argument is waived. (People
v. Jones (2009) 178 Cal.App.4th 853, 859.)

Even if
defendant’s argument was not waived, it is without merit because he has failed
to show prejudicial error. In >People v. McClellan, >supra, 6 Cal.4th at page 378, the
California Supreme Court stated: “‘[A]
defendant (even on direct appeal) is entitled to relief based upon a trial
court’s misadvisement only if the defendant establishes that he or she was
prejudiced by the misadvisemenent, i.e., that the defendant would not have
entered the plea of guilty had the trial court given a proper advisement.’ [Citations.]
Although defendant alleges that had he properly been advised, he would
not have entered his plea of guilty, there is nothing in the record on appeal
to support this contention. Thus, we
conclude defendant has failed to meet his burden of establishing
prejudice.” (See People v. Walker (1991) 54 Cal.3d 1013, 1023 [“Upon a timely
objection, the sentencing court must determine whether the error prejudiced the
defendant, i.e., whether it is ‘reasonably probable’ the defendant would not
have pleaded guilty if properly advised”].)

In the
instant case, nothing in the record shows that defendant would not have
admitted the prior conviction allegations had he been completely advised as to
the consequences of such an admission.
Defendant’s opening brief does not make such an assertion. (Defendant did not file a reply brief in this
appeal.) We therefore conclude defendant
has failed to meet his burden of establishing prejudicial error.



DISPOSITION

The
judgment is affirmed.







FYBEL,
J.



WE CONCUR:







O’LEARY, P. J.







IKOLA, J.