P. v. Terrones

Filed 1/29/09 P. v. Terrones CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Robert Martinez, Judge. Affirmed.

Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephen D. Matthews and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.

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Timothy Terrones (defendant) appeals from the judgment entered upon his conviction by jury of petty theft with priors (Pen. Code, 666).[1] Defendant admitted five prior convictions for purposes of proving his petty theft with priors charge. The trial court found to be true the allegation that defendant had suffered a prior felony strike conviction within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) and a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced defendant to an aggregate state prison term of four years. Defendant contends that the trial court failed to advise him of his constitutional rights prior to accepting his admission of the prior theft-related offenses, and reversal is therefore required under the totality of the circumstances test.

We affirm.

FACTUAL BACKGROUND

On August 4, 2007, at approximately 7:00 p.m., NK Nursery, in the City of Industry, was closed. Sheriffs deputies patrolling the area saw defendant near the back of the nursery. He was dragging a Sego Palm tree, in a 15 gallon pot, toward a car parked nearby. A second man was standing by the car, and a second Sego Palm tree was standing outside the fence, closer to the nursery. Each tree was worth $200.

The deputies drove up to defendant, who stopped dragging the tree and moved away from it. They asked if the trees were his. He responded, No. You got me. The deputies arrested him for stealing the two trees.

The deputies had the second man put the trees back in the nursery, which he did by lifting up the fence and sliding them underneath. The deputies allowed the second man to take defendants personal belongings and car home.

DISCUSSION

Before trial, defendant, representing himself, offered to admit his prior convictions in order to keep that information from the jury. These included a 1980 petty theft conviction in case No. WP027875; a 1981 burglary conviction in case No. MO41840; a 1984 burglary conviction in case No. M076795; a 1987 petty theft with prior conviction in case No. 87M10035; and 1991 grand theft and receiving stolen property convictions in case No. 91M07399. The trial court advised him that if he admitted the prior convictions, they would not come into evidence at trial.

The prosecutor identified the above-stated convictions and asked separately with respect to each if defendant admitted it. Defendant said that he did. There was no discussion of his constitutional rights or decision to waive those rights before he made the admissions. The trial court found that defendant has expressly, knowingly, understandingly, and intelligently waived his constitutional rights. Court finds his admissions to priors in count 1 are freely and voluntarily made with an understanding of the nature and consequences thereof and that theres a factual basis for his admissions. The prosecutor added: And just let me make it clear, Mr. Terrones, you understand that you are or were, then still are, if you want to withdraw your admissions, entitled to a jury determination as to the validity and trueness of each one of those priors, and you are entitled to all the regular constitutional rights that attach thereto. Do you understand that? Defendant stated that he did.

Just before the selected jury was brought into the courtroom to begin opening statements, the court revisited the issue, stating: I just wanted to make one thing clear and that is you admitted the priors on the count 1. I dont know if we explained to you the significance of that. The jurys going to address themselves to the crime of petty theft. They arent going to be told about the priors. But by admitting the priors, what that does is that if the jury finds you guilty of petty theft, it becomes a felony because you have admitted those priors. Do you understand? Defendant indicated that he did. The prosecutor stated: And you waive that for the purposes of that admission? Defendant again responded affirmatively.

Defendant contends that his conviction must be reversed because admission of his prior theft-related convictions was not voluntary or intelligent. He argues that the trial court failed to advise him of the constitutional rights he was waiving by his admissions, as mandated by Boykin v. Alabama (1969) 395 U.S. 238 (Boykin), and that reversal is therefore required under the totality of the circumstances test. This contention lacks merit.

A defendant prosecuted for petty theft with prior theft-related convictions may stipulate to a prior felony conviction allegation to preclude the jury from learning of that conviction. (People v. Bouzas (1991) 53 Cal.3d 467, 480.) This is because the prior conviction section of the statute is a sentencing matter for the trial court and not an element of the offense for the jury. (Ibid.) The question before us is what advisements, if any, are required for such a stipulation.

For a guilty plea to be valid, the record must reflect that the defendant was advised of and waived his right to a jury trial, to confront and cross-examine witnesses and his privilege against self-incrimination (Boykin, supra, 395 U.S. at p. 243; In re Tahl (1969) 1 Cal.3d 122, 130, disapproved on other grounds in Mills v. Municipal Court (1973) 10 Cal.3d 288, 306, fn. 16). The court in Boykin stated: We cannot presume a waiver of these three important rights from a silent record (Boykin, supra,at p. 243) and required that a defendant be advised of his or her rights on the record so that a reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant could be made (id. at p. 242). In In re Yurko (1974) 10 Cal.3d 857, 863-864, our Supreme Court held that trial courts are constitutionally required to advise defendants who intend to admit prior convictions of their Boykin rights and of those penalties and sanctions imposed as a result of the finding of the truth of the prior conviction allegation.

The question before us is whether the same requirement is extended to admissions of prior convictions for purposes of a section 666 charge. This precise question was presented to the First Appellate District in People v. Witcher (1995) 41 Cal.App.4th 223 (Witcher). There, the Court of Appeal found that [b]ecause the prior convictions and incarcerations were not elements of the section 666 offense which the jury was required to determine, appellants pretrial admission of [his prior theft convictions] was, in effect, a stipulation to their validity for the purpose of keeping them from the jury. (Witcher, supra, at pp. 233-234.) It continued, reasoning that: Appellant has cited no authority for the proposition that a defendant must be admonished about his constitutional rights when he enters into such a self-serving stipulation, and we decline to create such authority. He has received the benefit of his bargain. The prosecution was not allowed to prove his prior felony convictions and incarcerations before the jury. We will not now countenance an after-the-fact contention that his stipulation did not meet minimum constitutional standards. (Id.at p. 234.)

While the California Supreme Court has not yet weighed in on this specific issue, in People v. Newman (1999) 21 Cal.4th 413, 423, it cited Witcher with approval for the proposition that a defendant charged with petty theft with a prior ( 666) need not be admonished about his constitutional rights before stipulating to the existence of the prior conviction. We agree with Witcher.[2]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________________, J.

CHAVEZ

We concur:

___________________________________, P. J.

BOREN

___________________________________, J.

ASHMANN-GERST

[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] Because we have concluded that the trial court was not required to give defendant Boykin/Tahl advisements before his admission of the prior theft-related offenses under section 666, we need not consider whether his admission of those priors was intelligent, knowing and voluntary under the totality of the circumstances. (See People v. Howard (1992) 1 Cal.4th 1132, 1178 [if required Boykin/Tahl waivers not given, we consider whether the record affirmatively demonstrate[s] that the plea was voluntary and intelligent under the totality of the circumstances].)