P. v. Raney

Filed 6/5/08 P. v. Raney CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

A jury found defendant Lamon Raney guilty of unlawfully attempting to drive or take a vehicle (Veh. Code,  10851, subd. (a), Pen. Code, 664.)[1] Defendant then admitted two of the prior convictions alleged in the information. The trial court sentenced him to two years in prison, one of which was based on the prior prison term arising from the two convictions.[2] Defendant contends on appeal that the trial court deprived him of his constitutional rights by failing to advise him of his right to a jury trial on the prior convictions and prison term and of the penal consequences of his admission. We affirm the judgment of guilt, reverse the judgment on the enhancement allegations, and remand for further proceedings.

I. BACKGROUND

Before trial, defendant moved to bifurcate the trial on the prior conviction allegations. The following colloquy took place while defendant was present in court: The Court: All right. And then other motions: The defense moves to bifurcate the trial on the prior conviction. The Information in this case has four alleged prior convictions, and you certainly have a right to have that done if thats what you want. [] Now, what you need to dothat motion will be grantedyou need to let me know before the end of the trial if hes going to admit the priors, if hes going to have a court trial, or if he wants a jury to make that determination. [] [Defense Counsel]: Okay. [] The Court: If he wants a jury to make the determination, then we need to know so she can get all the information. [] [Defense Counsel]: Sure.

After the jury reached its verdict on the charge of attempting to unlawfully drive or take a vehicle, the trial court dismissed the jury. Immediately after the jury left the courtroom, the following discussion took place: The Court: Nobody reminded me before I released them. What did you want to do with the prior? [] [Defense Counsel]: Were prepared to stipulate to the prior. [] The Court: Okay. All right. Which was the prior that we werethere was a third prior? [] [Prosecutor]: It was, yes. After counsel explained that the two prior convictions that defendant was admitting were based on the same event, the court asked defendant whether he admitted or denied that he had been convicted of unlawful driving or taking of a vehicle and had received a prison term. Defendant initially denied having served a prison term, saying he [hadnt] been to prison at all. The following exchange took place: [Defense Counsel]: You got a paper commitment? [] The Defendant: Thats right. [] [Defense Counsel]: That count [sic]. [] The Court: You received like the equivalent of a prison sentence. [] The Defendant: Okay. [] The Court: Do you admit or deny that? [] The Defendant: Admit. Defendant then admitted receiving the equivalent of a prison term for the other conviction arising out of the same incident.

II. DISCUSSION

Defendant contends the record does not show that he made a knowing and intelligent waiver of his right to a jury trial on the prior conviction and prison term allegations or that he was advised of the penal consequences of his admission.

Where, as here, the trial court did not advise a defendant of his rights before accepting an admission of a prior conviction, we must decide whether, under the totality of the circumstances, defendants admission was voluntary and intelligent despite the trial courts failure to advise defendant of his rights. (People v. Mosby (2004) 33 Cal.4th 353, 360 (Mosby).) Thus, the absence of express admonishments and waivers does not require reversal regardless of prejudice. Instead, we look to the entire record, not just to the record of the plea colloquy, to determine whether the waiver was intelligent and voluntary. (Id. at p. 361, citing People v. Howard (1992) 1 Cal.4th 1132, 1178.)

As our Supreme Court noted in Mosby, in silent-record cases, where the defendant was not advised of the right to have a trial on an alleged prior conviction, we 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. (Mosby, supra, 33 Cal.4th at pp. 361-362.) Thus, in People v. Stills (1994) 29 Cal.App.4th 1766, 1768-1769, after the jury had reached its verdict, the trial court noted that the prior conviction allegations had been bifurcated; without advising the defendant of his rights, the court asked him if he admitted the allegations. Because the record did not affirmatively show that defendant knew of his constitutional rights and voluntarily waived them before making the admission, the Court of Appeal concluded the admission was invalid. (Id. at p. 1771.)

A similar result was reached in People v. Johnson (1993) 15 Cal.App.4th 169, 177-178. There, the trial court had been about to excuse the jury when the prosecutor reminded it that trial of the priors was still necessary. (Id. at p. 177, fn. 2.) Outside the presence of the jury, the judge recited the prior convictions, and asked the defendant,  Do you admit those prior convictions?  The defendant became confused, and the trial judge said,  All I want to know is whether you were convicted or whether or not you want a jury trial; were you convicted?  The defendant admitted the convictions. (Id. at p. 177.) The Court of Appeal reversed the true findings on the priors, stating, We have no doubt that Johnson was in fact aware of his right to a jury trial, his right to confront witnesses, and his right to remain silent, all of which he had just exercised in trial. What is impossible to determine from this silent record is whether Johnson not only was aware of these rights, but was also prepared to waive them as a condition to admitting his prior offenses. (Id. at p. 178.) In Mosby, our Supreme Court characterized the record in Johnson as so nearly silent as to be indistinguishable from Stills and other silent-record cases in which the admission of the priors was invalid. (Mosby,supra, 33 Cal.4th at pp. 361-362.)

There is no meaningful distinction between this case and the silent-record cases discussed above. It is true that at the outset of trial, the court told defense counsel, in defendants presence, that before the end of the trial, he should let the court know if defendant wanted a jury trial on the priors. When defendant admitted the priors, however, the jury had already been discharged, and he received no advisement that he still had a right to a jury trial on the priors. Even if he was aware of his rights, as in Johnson, nothing in the record indicates he was prepared to waive them. Indeed, his initial response that he denied having served the prison term because he had not actually been to prison suggests he may have been at least somewhat confused about the proceedings. We cannot conclude that the totality of the circumstances shows a knowing and intelligent waiver of defendants constitutional rights.

III. DISPOSITION

The judgment is reversed to the extent the trial court found the enhancement allegations true, and is affirmed in all other respects. The matter is remanded for a limited new trial on the enhancement allegations.

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RIVERA, J.

We concur:

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RUVOLO, P.J.

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SEPULVEDA, J.

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[1] The facts underlying defendants conviction are not germane to the issues he raises on appeal, and we will not recite them here.

[2] As we explain below, it appears that both prior convictions arose out of the same event, and the information alleged a single prior prison term under Penal Code section 667.5, subdivision (b) for the prior convictions that defendant admitted. Although the trial court stated that defendant would receive a single one-year term for the two prison priors, for a total prison term of two years, the clerks minutes and the abstract of judgment indicate defendant received a separate one-year sentence for each prior, for a total prison term of three years. We need not resolve this discrepancy here, because we are reversing the judgment on the enhancement allegations.