P. v. Guterres

Filed 6/30/08 P. v. Guterres CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In June 2007, Lilian Louisa Guterres (appellant) was convicted by a jury of felony petty theft with a prior conviction (Pen. Code,^[1] 666) and misdemeanor false representation ( 148.9, subd. (a)). She expressly waived her right to a jury trial and admitted the truth of three prior felony convictions. Accordingly, pursuant to section 667.5, a one-year enhancement was set to run consecutively with the two-year sentence imposed by the court.

On appeal, appellant claims that because she was not properly advised of her constitutional rights of confrontation and against self-incrimination, her concession of prior convictions is invalid. We conclude, under the authority of People v. Mosby (2004) 33 Cal.4th 353, 362-365 (Mosby), and the totality of the circumstances, that appellant freely and intelligently waived her constitutional rights because (1) the trial court partially advised her of such rights; (2) she had just confronted witnesses at trial; and (3) appellant had extensive experience with the criminal justice system.

I. FACTS

The parties do not dispute the factual findings of the trial court. Appellants section 666 conviction stemmed from an incident occurring at the Home Depot in Colma. The section 148.9 subdivision (a) conviction stemmed from an incident occurring at a Starbucks in South San Francisco.

At the conclusion of the jury trial on the charges, the court inquired as to how appellant wished to proceed with regard to the truth of prior convictions that would enhance her sentence. Both before and after the jury verdict, appellant, being admonished only of her right to a jury determination, waived her constitutional rights and admitted the prior convictions. Accordingly, pursuant to section 667.5, subdivision (b), a one-year enhancement was set to run consecutively with the two-year sentence imposed by the court. This appeal followed the entry of judgment.

II. DISCUSSION

A. Governing Law

In In re Tahl (1969) 1 Cal.3d 122, 132-133, the California Supreme Court held that before a criminal defendant can enter a constitutionally valid guilty plea, he or she must be admonished expressly of the right to a jury trial, to confront accusers, and against self-incrimination. The court in In re Yurko (1974) 10 Cal.3d 857, 863 (Yurko), extended this requirement to a defendants admission of a prior conviction.

Acknowledging a change in the weight of authority, in 1992 our Supreme Court revisited Yurko. (People v. Howard (1992) 1 Cal.4th 1132, 1175.) The court found that the overwhelming weight of authority no longer supports the proposition that the federal Constitution requires reversal when the trial court has failed to give explicit admonitions on each of the so-called Boykin [Boykin v. Alabama (1969) 395 U.S. 238 (Boykin)] rights. (People v. Howard, supra, 1 Cal.4th at p. 1175, first italics added.) Specifically, no longer was a plea of guilty automatically invalid when imperfect advisements were given to the defendant with regards to his or her Boykin rights. (Ibid.; see also People v. Ernst (1994) 8 Cal.4th 441, 445-446.) Instead, as the court explained, Yurko error involving Boykin/Tahl admonitions should be reviewed under the test used to determine the validity of guilty pleas under the federal Constitution. Under that test, a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances. [Citations.] . . . [E]rrors in the articulation and waiver of those rights shall require the plea to be set aside only if the plea fails the federal test. (People v. Howard, supra, 1 Cal.4th at p. 1175.)

More recently, in Mosby, supra, 33 Cal.4th at pages 362-365, our Supreme Court concluded that although it is ideal[] for the defendant to be expressly admonished of all of his or her Boykin rights (e.g., by supporting judicial economy), failure to do so does not automatically invalidate an admission of a prior conviction. (Mosby, supra, 33 Cal.4th at p. 365 & fn. 3). The court held that if the transcript does not reveal complete advisements and waivers, the reviewing court must examine the record of the entire proceeding to assess whether the defendants admission of the prior conviction was intelligent and voluntary in light of the totality of the circumstances. [Citation.] (Id. at p. 361.) We note, as the court did in Mosby, 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 defendants photograph [or] fingerprints . . . . [Citation.] (Mosby, supra, 33 Cal.4th at p. 364.)

B. Analysis

The facts and legal dispute in the present case are nearly identical to those in Mosby. The Mosby court was asked to rule on whether the defendant adequately understood all of his Boykin rights before admitting the truth of a prior conviction. (Mosby, supra, 33 Cal.4th at pp. 357-358.) The record there revealed that after the trial court learned the jury had reached a verdict, it asked the defendant whether he wanted a jury trial on the prior conviction allegation. The defendant waived the right and admitted the prior after being expressly advised only of the right to have a jury determination. He was not advised of his rights to confront witnesses and remain silent. (Id. at p. 364.) Adhering to the totality of the circumstances test, the Mosby court determined that the record, on the whole, supported the inference that the defendant freely and intelligently waived his constitutional rights with respect to the prior conviction allegation despite not being expressly admonished of all his Boykin rights. (Id. at p. 365.) The court inferred from the fact that the codefendant testified while the defendant did not, that the defendant was aware of his right against self-incrimination. (Id. at p. 364.) The court reasoned that because the defendant, through counsel, had confronted witnesses at the jury trial, he would have properly understood that right as well. (Ibid.)

Like Mosby, here the trial court addressed the prior conviction allegation after the jury had reached a verdict and informed appellant of her right to have the jury make the decision. Appellant elected to waive her rights and admitted the priors.

The issue here is whether appellant freely and intelligently admitted the prior convictions, i.e., whether she did so with knowledge of her rights to a jury or court trial, to confront witnesses, and to remain silent. (Mosby, supra, 33 Cal.4th at pp. 356, 359.) It is not disputed that appellant was admonished of her right to have a jury decide the truth of the prior convictions.

The record establishes by a totality of the circumstances that appellant was sufficiently admonished of her right to confront witnesses. Appellant had just concluded a trial in which she, through counsel, confronted and cross-examined a number of witnesses. We therefore infer, as the court did in Mosby,that appellant would understand that she had the right to confront witnesses at a trial. (Mosby, supra, 33 Cal.4th at p. 364.)

With respect to the right against compulsory self-incrimination, appellant asserts that her experience with the criminal justice system does not support the inference that she understood this right. We disagree.

We look to a defendants experience with the criminal justice system to infer the constitutional rights he or she is privy to. (Mosby, supra, 33 Cal.4th at p. 365.) The court in Mosby makes clear, a defendants 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 because previous experience speaks to a recidivists knowledge and sophistication regarding his [legal] rights. [Citations.] (Ibid., fn. omitted.) The Mosby court found relevant that the defendant had pleaded guilty in the past and would have received complete advisements on those occasions. (Ibid.)

In this case, appellant has suffered numerous felony and misdemeanor convictions. Three affect appellants sentence in this case. In sum, the record reveals that prior to this case appellant had been found guilty by a court trial in at least one instance, had pleaded no contest in at least five instances, and had admitted to prior convictions/enhancements in at least two instances.

Appellant nonetheless claims that because she has never pleaded guilty to any criminal chargehaving pleaded no contest six timesshe has inadequate experience with the criminal justice system to have knowingly, freely and intelligently waived her constitutional rights. This argument is unpersuasive. It is firmly established that when a defendant pleads guilty or no contest to criminal charges, the same rules regarding admonishments, waivers and advisements apply. (People v. Panizzon (1996) 13 Cal.4th 68, 80; People v. Lytle (1992) 10 Cal.App.4th 1, 4; People v. DeFilippis (1992) 9 Cal.App.4th 1876, 1879.) This is true whether or not defendant is making her plea under a plea bargain agreement or whether both parties agree on maximum punishment. (People v. Lytle, supra, at p. 4; People v. DeFilippis, supra, at p. 1879.)

Moreover, as appellant concedes, she had admitted enhancements to prior convictions on multiple occasions. We have no reason to doubt that appellant received proper advisements when she, on numerous occasions, pleaded no contest and admitted enhancements. Because we infer she was fully admonished of her constitutional rights and the consequences of waiving them on past occasions, we conclude appellant freely and intelligently waived those rights and admitted her past convictions in this instance.

III. DISPOSITION

The judgment is affirmed.

_________________________

Reardon, J.

We concur:

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Ruvolo, P.J.

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Rivera, J.

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^[1]All further statutory references are to the Penal Code.