Filed 9/21/26 P. v. Hodges CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F088894
Plaintiff and Respondent,
(Super. Ct. No. BF192540A)
v.
JAMES HODGES,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
Vicki Hightower, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Ian Whitney and Christina
Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant James Hodges was charged with obstructing or resisting Monique D.,
an executive officer in the performance of her duties (Pen. Code,1 § 69 [count 1]);
obstructing or resisting Melvin G., an executive officer in the performance of his duties
(§ 69 [count 2]); battery against Monique D., a peace officer engaged in the performance
of her duties (§ 243, subd. (c)(2) [count 3]); and indecent exposure with two prior
convictions therefor (§ 314, subd. 1 [count 4]). As to all counts, the information alleged
defendant was previously convicted of first degree burglary (§ 460, subd. (a)), which
qualified as a “strike” offense under the Three Strikes law (§§ 667, subds. (c)–(j),
1170.12, subds. (a)–(e)) and rendered him eligible for state prison (§ 1170, subds. (f),
(h)(3)). The information also asserted two circumstances in aggravation: (1) defendant’s
prior convictions are numerous or of increasing seriousness (Cal. Rules of Court, rule
4.421(b)(2)); and (2) defendant has served a prior term in prison (id., rule 4.421(b)(3)).
During a hearing on the parties’ motions in limine, defense counsel voiced
concern that the prosecution would allude to defendant being on parole for an earlier
indecent exposure offense at the time of the charged offenses. At the trial court’s
suggestion and in defendant’s presence, defense counsel stipulated defendant had a prior
indecent exposure conviction. During a subsequent pretrial hearing, defendant waived
his right to be physically present in court. Thereafter, during another pretrial hearing,
defense counsel agreed to bifurcation of the prior conviction and aggravating
circumstance allegations and requested a bench trial thereon.
The jury found defendant guilty as charged on all substantive offenses. In the
bifurcated proceeding, the trial court found true the allegations defendant was previously
convicted of indecent exposure on two occasions, he was previously convicted of first
degree burglary, his prior convictions are numerous and of increasing seriousness, and he
1 Unless otherwise indicated, subsequent statutory citations refer to the Penal
Code.
2.
served a prior prison term. Defendant received an aggregate term of 10 years in state
prison: six years (the doubled upper term) on count 1, a consecutive 16 months (one-
third the doubled middle term) on count 2, a consecutive 16 months (one-third the
doubled middle term) on count 3, and a consecutive 16 months (one-third the doubled
middle term) on count 4.
On appeal, defendant makes several contentions. First, the trial court’s true
findings as to the prior conviction and aggravating circumstance allegations must be
reversed because defendant never expressly and personally waived his right to a jury trial
thereon. Next, the felony conviction on count 4 must be reduced to a misdemeanor
because defendant was not advised of and did not waive his Boykin2-Tahl3 rights before
defense counsel stipulated to a prior indecent exposure conviction. Finally, the trial court
erroneously imposed separate punishment on count 3 because the battery was
“incident[al] to one objective” and “committed concurrently with the resisting arrest by
threats or violence charges.”
We conclude: (1) defendant’s express and personal waiver of his jury trial right as
to the prior conviction allegations was unnecessary; (2) although defendant did not
expressly and personally waive his jury trial right as to the circumstances in aggravation,
the error was not prejudicial; (3) Boykin-Tahl admonitions were unwarranted; and
(4) substantial evidence supported the imposition of separate punishment on count 3.
STATEMENT OF FACTS
Defendant and Jose G.—both parolees—lived at a residential treatment facility in
Bakersfield. On December 7, 2022, during a group session, Jose witnessed defendant
“playing with his penis” “underneath his sweatpants.” After defendant “got erect[],” he
2 Boykin v. Alabama (1969) 395 U.S. 238.
3 In re Tahl (1969) 1 Cal.3d 122.
3.
“proceeded to take it out” and “looked at [Jose] in the face.” On December 8, 2022, Jose
reported the incident to a counselor.
On December 8, 2022, parole agent Melvin G. visited the facility to see one of his
parolees. Upon his arrival, he was asked by a staff member to take disciplinary action
against defendant for masturbating during a group session. Melvin encountered and
relayed the foregoing request to his supervisor, parole agent Monique D. In turn,
Monique contacted defendant’s parole agent and received instructions to arrest defendant
for violating the terms of his parole and transport him to county jail. Melvin, Monique,
and another parole agent went to defendant’s room, informed him about a parole
violation, and handcuffed him. As defendant was being escorted out of the facility, he
asked “what he was being arrested for.” When Monique told him “he was alleged to
have committed an act of indecent exposure,” defendant insisted “the staff … [was]
lying” and “trying to sabotage [him].”
Outside the facility, the agents tried to seat defendant in the back of their vehicle,
but he “dropped his weight to the ground.” Defendant remarked, “Yeah, I’m not going
back to jail. I just got out. This is not fair. You know, these staff [members] are trying
to lie about me.” As Melvin and Monique were placing him into the vehicle, defendant
“flailed his legs”—kicking Melvin multiple times—and attempted to headbutt them.
Once defendant was inside, Monique tried to buckle the seatbelt. As she was doing so,
he spat on her and then bit her twice, first on her left wrist and then on her right wrist.
The second bite caused profuse bleeding. Because of defendant’s recalcitrance, the
agents contacted the Bakersfield Police Department for extra assistance.
PROCEDURAL BACKGROUND
I. Pretrial proceedings
A hearing on the parties’ motions in limine was held on September 19, 2024.
Present were the prosecutor, the defendant, and defendant’s attorney. Defense counsel
4.
filed a motion asking the court—among other things—to order the prosecution “not to
refer to, interrogate any witness concerning, comment on, or attempt to suggest to the
jury in any way concerning any prior conduct or criminal acts concerning previously
charged crimes .…” In particular, counsel did not want the prosecution to mention
defendant was on parole for indecent exposure at the time of the December 7, 2022
incident. The court noted it “[did not] know how [to] get around” defendant’s parolee
status given he was apprehended by parole agents for a parole violation. The court also
recognized defendant’s prior conviction for indecent exposure would elevate a conviction
on count 4 from a misdemeanor to a felony and necessitated two separate jury
instructions: CALCRIM No. 1160 (“Indecent Exposure”) and CALCRIM No. 3100
(“Prior Conviction: Nonbifurcated Trial”). The following exchange occurred:
“THE COURT: … [¶] … [¶] So, [defense counsel], one way of
doing this would be for you to stipulate that he had a prior [conviction for
violating section] 314. That would not come in during the course of the
trial, and we would not have to deal with a bifurcation, just give
[CALCRIM No.] 1160 as it is, and deal with it … in that fashion.
“[DEFENSE COUNSEL]: And so the idea would be the jury would
just be submitted the [charge of] indecent exposure [on count 4] as a felony.
They wouldn’t have any idea whether [there] was a prior or not, and just
enter a verdict, and I would stipulate that there was a prior so that there
would be a felony conviction.
“THE COURT: Right. If you stipulate, it would then make it a
felony, and the jury would hear nothing about any priors.
“[DEFENSE COUNSEL]: I’d stipulate to that.
“THE COURT: Okay. The jury won’t hear … defendant’s prior
conviction for [violating section] 314. We’ll play it clean. The … defense
will stipulate that he has suffered that prior conviction, and we’ll handle it
that way. [¶] So make sure your people don’t discuss that, [prosecutor].
Explain to them to stay away from any prior conviction by … defendant.
“[PROSECUTOR]: Okay.”
5.
On September 23, 2024, defendant refused to be transported to court. The court
commented:
“We do have a jury [panel] outside waiting to come in. My
understanding is … that even though I had a removal order for him from
the jail with reasonable force, apparently [defendant] was so disruptive this
morning at the jail that law enforcement/transportation did not feel that
bringing him down here was the best move. Apparently, he was naked and
threatening and wanted to fight, et cetera.
“So we’ve had [defendant] in court twice. Once was when we
originally got the case and were waiting on motions and a few other things;
so we trailed it to the next day. [¶] [Defendant] had a little outburst there,
but I was going to discuss that with him the next day when we did the
motions, which was on Thursday[, September 19, 2024]. So I didn’t talk to
him about his behavior at all.
“When we came back on Thursday to do the motions, he sat there
perfectly quiet. I explained everything to him. He was here in court.
There wasn’t a single issue…. I explained to him what we were going to
do today, and, apparently, he had quite an issue this morning.
“Now, my gut instinct was to go ahead and continue, in light of the
fact that he had voluntarily removed himself from this. But I’ve had an in
custody who’s refused transportation. I have not notified him of his right
and obligation to appear. I have not notified him of the fact that he cannot
act disorderly, disruptive[ly], and disrespectful[ly] in the court, and that we
can carry on without him, and he can absent himself voluntarily, but I
haven’t explained any of that to him. [¶] … [¶] So what we unfortunately
find oursel[ves] in is that … I just have not had the opportunity to discuss
with him the ramifications of acting like that.
“So, apparently, the sheriff’s office doesn’t want to bring him down
today, and they are the boots on the ground there, and I will acquiesce to
their evaluation of the situation. We will have him brought back tomorrow.
Hopefully, I can make sure that they try to get him here, unless there’s an
absolute issue with it … like we had this morning tomorrow, then we’d
have to address getting him here somehow in a different fashion so I could
speak with him. But I think it’s a wash for today.”
Thereafter, the jury panel was excused.
6.
On the morning of September 24, 2024, defendant was transported to court after
he was “pepper spray[ed]” by law enforcement officials. The following exchange
occurred:
“THE COURT: … [¶] … [¶] … You’re in custody, and if you
refuse transport, you have an obligation to appear, but the trial can proceed
without you if you’re not here. Okay? [¶] You have a right to remain
silent, and your absence is voluntary, if you refuse to come in, and that’s a
voluntary waiver of your right to be here and to confront the witnesses
against you. Okay? [¶] And I’m informing you now that your defense
counsel will be present and he will proceed and we will proceed without
you, if you voluntarily absent yourself from these proceedings. Okay? [¶]
So … you appear to be quiet and ready to go this morning. [¶] Do you
understand what’s going on?
“THE DEFENDANT: Yes.
“THE COURT: Do you have any questions of me?
“THE DEFENDANT: No. [¶] … [¶]
“THE COURT: Would you like to stay and sit over here at counsel
table, or what is your preference?
“THE [DEFENDANT]: I would like to be removed. I don’t agree
with this; so I don’t need to be here. My mind is going –
“THE COURT: You don’t want to be here. [¶] Can you tell me
why?
“THE [DEFENDANT]: Truth will come out. If people not commit
perjury and do the right thing, truth will come out. I don’t have nothing to
hide. I don’t have to go along. The truth is if this is really a court of law
and justice, then the justice shall set me free; so –
“THE COURT: So … do you want to sleep on it and have you come
back tomorrow and ask you?
“THE DEFENDANT: I wish not to have to come back at all.
“THE COURT: Okay. So you’re telling me you don’t want to be
here today and you don’t want to be here for the rest of the trial?
7.
“THE DEFENDANT: No.… I have faith in the judicial system,
that they will do the right thing.
“THE COURT: Okay. But I – Mr. Hodges, I just need to hear are
you waiving your right to be here today and for the rest of the trial?
“THE DEFENDANT: I’m waiving my right.
“THE COURT: You are. [¶] Okay. [Defense counsel]?
“[DEFENSE COUNSEL]: No comment.
“THE COURT: [Prosecutor]?
“[PROSECUTOR]: Submit it.
“THE COURT: Okay. Mr. Hodges, we’ll go ahead and have you
taken out, then, sir. [¶] Would you like me to bring you back at all to see if
you change your mind, or no?
“THE DEFENDANT: Nope.
“THE COURT: Okay. All right, gentlemen. [¶] Thank you very
much, sir. Have a good day.”
Defendant, defense counsel, and the court subsequently signed a waiver form. It read:
“Waiver of Defendant’s Personal Presence
“I, James Hodges, having been advised of my right to be present at all
stages of the proceedings, including the right to the presentation of and
arguments on questions of fact and law, and to the right to confront and
cross examine all witnesses, hereby waives the right to be present at the
trial and any related proceeding in this case. I request the court to proceed
during my absence pursuant to this waiver, and agree that my interest is
represented by the presence of my attorney as if I were personally present
in court with him, and further agree that notice to my attorney that his
presence in court is required on set date and time is notice of the same to
me.”
In the afternoon of September 24, 2024, the trial court and counsel discussed
bifurcation. The following exchange occurred:
“THE COURT: … [¶] … [¶] [Prosecutor], you were inquiring
about a bifurcation as to which charge?
8.
“[PROSECUTOR]: I believe all the felonies have prior
enhancements, and there’s also the [two circumstances in aggravation] .…
“THE COURT: [Defense counsel], first things first. As to the
[circumstances in aggravation], I don’t remember if you indicated when we
were discussing this earlier or not whether you’d want a trial by jury on the
[circumstances in aggravation] or by Court, in light of the fact that … [this]
is going to be by docket or paper.
“[DEFENSE COUNSEL]: I’m wanting a Court trial.
“THE COURT: Court trial. Okay. [¶] Then we would have a
Court trial, if there’s a guilty verdict, [prosecutor]. We would have a Court
trial on those particular enhancements.
“[PROSECUTOR]: Okay.
“THE COURT: So they would be bifurcated. The jury wouldn’t get
it.
“[PROSECUTOR]: Would that also include the [Three Strikes
sentencing scheme]?
“THE COURT: Yeah. The priors, the jury is not going to hear that.
[¶] [Defense counsel], in light of the fact that, once again, we wouldn’t be
getting into those priors, it’s just going to be a review of documentation, a
Court trial on that as well?
“[DEFENSE COUNSEL]: Right. And I stipulated to the priors for
the purposes of the jurors getting the instruction without any knowledge of
priors.
“THE COURT: Very good. [¶] Yes, I do remember that. That was
kind of an agreement we had. [¶] … [¶] … And then as to the
enhancements, that would be by a Court trial, which would be in front of
me on the strikes, and the [circumstances in aggravation].
“[PROSECUTOR]: Okay.… [D]efendant doesn’t need to waive?
“THE COURT: Defendant has turned everything over to [defense
counsel].
“[PROSECUTOR]: Okay. [¶] … [¶]
“[DEFENSE COUNSEL]: One other thing, Your Honor.
9.
“THE COURT: Yes, sir.
“[DEFENSE COUNSEL]: At the conclusion of the prosecution’s
case, I think we should bring … defendant back to waive his right to testify,
assuming he wants to do that. Because I don’t think we really went over
that, and I think that it may be premature to go over that until the evidence
is closed by the prosecution.
“[PROSECUTOR]: I believe that language is … included in the
waiver. At least the end of it.
“THE COURT: I’ll tell you what, [counsel]. Let me take a look at
that, and they wouldn’t be concluding by tomorrow anyway.
“[DEFENSE COUNSEL]: Right.
“THE COURT: So let me take a look at that. I’ll have an answer
for you in the morning.”
On September 25, 2024, before the jury was sworn in the following exchange
occurred:
“[PROSECUTOR]: Your Honor, … has the Court made a decision
whether we’re going to bring back … defendant?
“THE COURT: I believe that the waiver that we spoke to him about
and … the written waiver will be sufficient. However, the law states that I
may bring him back, and at this point my tentative is to not bring him back,
… but I haven’t heard the evidence yet. So depending on how it goes, I
may or may not. So the tentative is he will not be coming back unless
something, during the course of the testimony, triggers the fact that he
needs to come back and we need to speak to him.”
Defense counsel did not object thereto. Defendant did not return to court.
II. Jury instructions
Prior to closing arguments, the trial court instructed the jury. Among other things,
the court issued CALCRIM No. 1160:
“Count 4.… [D]efendant is charged in [c]ount 4 with indecent
exposure, in violation of … [s]ection 314. To prove … defendant is guilty
of this crime, the People must prove that, one, … defendant willfully
exposed his genitals in the presence of another person or persons who
might be offended or annoyed by … defendant’s actions, and, two, when …
10.
defendant exposed himself, he acted lewdly by intending to direct public
attention to his genitals for the purpose of sexually arousing or gratifying
himself or another person or sexually offending another person.
“Someone acts willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage. It is not required that the person
actually see the exposed genitals.”
III. Bifurcated bench trial
On September 30, 2024, after the jury found defendant guilty of the substantive
offenses, the trial court conducted a bifurcated trial on the prior conviction and
aggravating circumstance allegations. The prosecutor provided a section 969b packet,
which contained, among other things:
(1) A June 9, 2004 abstract of judgment from Los Angeles County (case
No. YA057440) reflecting defendant’s conviction for unlawful
possession of a firearm by a felon (former § 12021, subd. (a)(1)) and a
two-year prison term;
(2) A June 10, 2004 abstract of judgment from Los Angeles County (case
No. TA067309) reflecting defendant’s conviction for vandalism
(§ 594) and a two-year prison term;
(3) A May 26, 2005 abstract of judgment from Los Angeles County (case
No. YA061721) reflecting defendant’s conviction for unlawful
possession of a firearm by a felon (former § 12021, subd. (a)(1)) and a
16-month prison term;
(4) A December 19, 2005 abstract of judgment from Los Angeles County
(case No. YA061945) reflecting defendant’s conviction for
brandishing a deadly weapon other than a firearm (§ 417, subd. (a)(1))
and a 16-month prison term;
(5) An October 7, 2009 abstract of judgment from Kern County (case
No. BF120106A) reflecting defendant’s conviction for obstructing or
resisting an executive officer in the performance of his or her duties
(§ 69), a prior prison term enhancement (§ 667.5, former subd. (b)),
and a 28-month prison sentence;
(6) An October 13, 2009 abstract of judgment from Kern County (case
No. BF124254A) reflecting defendant’s conviction for willful failure
11.
to appear on a felony charge (§ 1320.5) and an eight-month prison
term;
(7) A January 24, 2012 abstract of judgment from Kern County (case
No. BF138992A) reflecting defendant’s conviction for first degree
burglary (§ 460, subd. (a)) and a four-year prison term;
(8) A December 10, 2012 abstract of judgment from Kern County (case
No. SF016607A) reflecting defendant’s conviction for indecent
exposure with a prior conviction therefor (§ 314, subd. (1)), a prior
prison term enhancement (§ 667.5, former subd. (b)), and a five-year
prison sentence;
(9) A June 15, 2016 abstract of judgment from Sacramento County (case
No. 15F05222) reflecting defendant’s conviction for indecent
exposure (§ 314, subd. 1) and a 16-month prison term;
(10) An August 17, 2022 abstract of judgment from San Joaquin County
(case No. STK-CR-2019-13215) reflecting defendant’s conviction for
indecent exposure with a prior conviction therefor (§ 314, subd. (1))
and an eight-month prison term; and
(11) An October 11, 2022 abstract of judgment from Solano County (case
No. FCR337145) reflecting defendant’s two separate convictions for
indecent exposure with a prior conviction therefor (§ 314, subd. (1))
and a 16-month prison term.
The prosecutor also provided a 22-page California Law Enforcement
Telecommunications System (CLETS) printout of defendant’s criminal history
information.
After reviewing the aforementioned documents, the court pronounced:
“It does appear to the Court that … defendant has suffered the prior
conviction as alleged, a violation of … [s]ection 460[, subdivision ](a).…
Out of the County of Kern, date of conviction, 12/22/11. That was a plea in
case number BF138992A. And find … defendant guilty of suffering that
prior [section] 460[, subdivision ](a) conviction, which is a strike
conviction, and I will find that that was alleged on all four counts and find
him guilty thereof for that strike, on all four counts.
“As to … [c]ount 4, … there are two prior convictions, case out of
Kern County, SF016607A, on or about May 23, 2012, for Mr. Hodges.…
[A]n abstract from Sacramento County for [defendant].… [T]he crime was
12.
committed in 2015. The date of conviction of 6/15/16, case ending in
F05222.
“Find … defendant has suffered those two previous [section] 314[,
subdivision 1 conviction]s, … therefore make [c]ount 4 a felony, per the
agreement that the jury would not hear that, that I would make that finding
by way of Court trial if there was … a guilty verdict on [c]ount 4.
“Therefore, we do have two prior convictions for the same, and as a
result, that will be a guilty verdict for [c]ount 4. The jury has found him
guilty, but with the two priors, that will make it the felonies.
“Lastly, we have the [circumstances in aggravation] as to all counts,
[California Rules of Court, rule] 4.421(b)(2), that Mr. Hodges’s prior
convictions as an adult or sustained petitions in juvenile delinquency
proceedings are numerous and of increasing seriousness, and [California
Rules of Court, rule] 4.421(b)(3), that he served a prior prison term.
“The Court, in reviewing the [section] 969b packet, does see that he
served a prior prison term. He will therefore be found guilty of that
[circumstance in aggravation], that [circumstance] is true, and as to the
lengthy criminal record, … [b]ased on the 22-page rap sheet and the
conviction for this crime and the date of convictions in the [section] 969b
[packet], the Court will find that to be true and … defendant guilty
thereof.”
DISCUSSION
I. Defendant’s express and personal waiver of his right to a jury trial on the
prior conviction allegations was unnecessary.
As noted, the trial court found true the allegations defendant was previously
convicted of indecent exposure on two separate occasions, which elevated the indecent
exposure conviction on count 4 to a felony. (§ 314 [“Upon the second and each
subsequent conviction under subdivision 1 of this section, … every person so convicted is
guilty of a felony, and is punishable by imprisonment in state prison.”].) The court also
found true the allegation he was previously convicted of first degree burglary, which
triggered the Three Strikes sentencing scheme (§§ 667, subds. (c)–(j), 1170.12, subds.
(a)–(e)) and required him to serve his sentence in the state prison (§ 1170, subds. (f),
13.
(h)(3)). On appeal, defendant contends these findings must be reversed because he never
expressly and personally waived his right to a jury trial thereon.
“Under the Fifth and Sixth Amendments to the United States Constitution, ‘any
fact that exposes a defendant to a greater potential sentence must be found by a jury, not a
judge, and established beyond a reasonable doubt, not merely by a preponderance of the
evidence.’ [Citations.]” (People v. Wiley (2025) 17 Cal.5th 1069, 1078 (Wiley).)
However, “[an] exception to the jury trial right for ‘the fact of a prior conviction’ has
long been recognized in the [United States Supreme Court]’s precedent. [Citations.]”
(Id. at p. 1079; see, e.g., Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [“Other than
the fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.”].) In California, “[t]he right … to a jury trial of prior conviction
allegations derives from sections 1025 and 1158, not from the state or federal
Constitution[s].” (People v. Epps (2001) 25 Cal.4th 19, 23; accord, People v. Gallardo
(2017) 4 Cal.5th 120, 125, 127.) “Whenever, for purposes of enhancing the sentence on
current charges, the prosecution alleges a prior conviction sustained by the defendant, and
the defendant disputes the allegation, the question whether he or she ‘has suffered’ the
prior conviction must, unless a jury is waived, be submitted to a jury in the current
proceeding.” (People v. Nguyen (2009) 46 Cal.4th 1007, 1015, italics added, quoting
§§ 1025, subds. (a), (b), 1158.)
While the California Constitution contemplates waiver of the jury trial right “by
the consent of both parties expressed in open court by the defendant and the defendant’s
counsel” (Cal. Const., art. I, § 16), this requirement of a defendant’s “express, personal
waiver” (People v. Vera (1997) 15 Cal.4th 269, 278) “applies to the constitutional right to
a jury trial, … not to jury trial rights that are established only by statute” (People v.
French (2008) 43 Cal.4th 36, 46 (French).) (See People v. Saunders (1993) 5 Cal.4th
580, 589, fn. 5 [“The rule that a waiver of the constitutional right to a jury trial must be
14.
express has no application to the statutory right to have the same jury that determined
[the] defendant’s guilt of the currently charged offenses determine the truth of alleged
prior convictions.”].) Thus, the premise upon which defendant rests his argument vis-à-
vis the trial court’s prior conviction findings is flawed. Waiver of a defendant’s statutory
jury trial right may be made by defense counsel. (See, e.g., People v. Thomas (2001) 91
Cal.App.4th 212, 214–215.) Here, defendant’s counsel requested a bifurcated bench trial
on the prior conviction allegations, among other things. (See id. at p. 215.) Defendant
waived his right to be physically present in court, so did not object to the waiver. (See
People v. Saunders, supra, 5 Cal.4th at p. 589 [“[D]efendant’s failure to object precludes
his obtaining appellate relief on the basis of the [purported] statutory error committed by
the trial court.”]; cf. French, supra, 43 Cal.4th at p. 46 [“[A] ‘[d]efendant’s failure to
object … would not preclude his asserting on appeal that he was denied his constitutional
right to a jury trial.”].)
Even assuming, arguendo, defense counsel’s waiver on defendant’s behalf was
somehow improper, absent this purported error, “it is not ‘reasonably probable that a
result more favorable [to defendant] would have been reached’ [citation] if the jury,
instead of the court, had determined that defendant ‘suffered’ [citation] the prior
convictions.” (People v. Epps, supra, 25 Cal.4th at p. 29; see ibid. [Watson4 harmless
error test applies where “error is purely one of state law”].) Documents provided by the
prosecution unequivocally demonstrated defendant was previously convicted of indecent
exposure on at least two separate occasions as well as first degree burglary on yet another
occasion. (See People v. Miles (2008) 43 Cal.4th 1074, 1083 [“Absent rebuttal evidence,
the trier of fact may presume that an official government document, prepared
contemporaneously as part of the judgment record and describing the prior conviction, is
truthful and accurate. Unless rebutted, such a document, standing alone, is sufficient
4 People v. Watson (1956) 46 Cal.2d 818.
15.
evidence of the facts it recites about the nature and circumstances of the prior
conviction.”].)
II. Failure to secure defendant’s express and personal waiver of his right to a
jury trial on the circumstances in aggravation was not prejudicial.
“Under California law, most felonies carry a ‘determinate’ prison sentence
consisting of one of three possible terms, designated the lower, middle, and upper terms.”
(People v. Nguyen (1999) 21 Cal.4th 197, 201.) Section 1170, subdivision (b)(2) reads in
part:
“The court may impose a sentence exceeding the middle term only when
there are circumstances in aggravation of the crime that justify the
imposition of a term of imprisonment exceeding the middle term and the
facts underlying those circumstances have been stipulated to by the
defendant or have been found true beyond a reasonable doubt at trial by the
jury or by the judge in a court trial.” (Accord, Cal. Rules of Court, rule
4.420(b).)
Circumstances in aggravation are set forth in California Rules of Court, rule 4.421.
As noted, the trial court found true two aggravating circumstance allegations:
(1) defendant’s prior convictions are numerous or of increasing seriousness (Cal. Rules of
Court, rule 4.421(b)(2)); and (2) defendant has served a prior term in prison (id.,
rule 4.421(b)(3)). On appeal, defendant contends these findings must be reversed
because he never expressly and personally waived his right to a jury trial thereon.
“Under the federal Constitution and [the] state Constitution, a defendant in a
criminal proceeding has a right to a jury trial” (People v. Sivongxxay (2017) 3 Cal.5th
151, 166 (Sivongxxay)) and is “entitled to a jury trial on all aggravating facts, other than
the bare fact of a prior conviction and its elements, that expose the defendant to
imposition of a sentence more serious than the statutorily provided midterm” (Wiley,
supra, 17 Cal.5th at p. 1086, fn. omitted). A defendant “may assert the right to a jury
trial, may waive jury in favor of a court trial, or may waive trial altogether.” (Wiley,
supra, at p. 1086.) “When the constitutional right to jury trial is involved, … an express
16.
waiver [is required] even in cases in which the circumstances make it apparent that all
involved—the trial court, the prosecutor, defense counsel, and the defendant—assumed
that the defendant had waived or intended to waive the right to a jury trial.” (French,
supra, 43 Cal.4th at p. 47; see Cal. Const., art. I, § 16; Sivongxxay, supra, at p. 166
[“Waiver must be ‘express[ed] in words … and will not be implied from a defendant’s
conduct.’ ”].)
Here, the record shows defendant actively resisted being brought to the courtroom.
When the trial court advised that his refusal to attend would constitute “a voluntary
waiver of [his] right to be here and to confront witnesses against [him]” and the matter
would “proceed without [him],” defendant stated he “would like to be removed,”
“wish[ed] not to have to come back at all,” and was “waiving [his] right” to be physically
present. In a signed waiver form, defendant attested he was “advised of [his] right to be
present at all stages of the proceedings, including the right to the presentation of and
arguments on questions of fact and law, and to the right to confront and cross examine all
witnesses”; “waive[d] the right to be present at the trial and any related proceeding in this
case”; “request[ed] the court to proceed during [his] absence pursuant to this waiver”;
“agree[d] that [his] interest is represented by the presence of [his] attorney as if [he] were
personally present in court with him”; and “agree[d] that notice to [his] attorney that his
presence in court is required on set date and time is notice of the same to [him].”
Nothing indicates defendant expressly or personally waived his right to a jury trial
on the circumstances in aggravation. (Cf. Sivongxxay, supra, 3 Cal.5th at p. 166 [the
defendant “acknowledges that he expressly stated on the record that he gave up his right
to a jury trial”].) Even the Attorney General concedes in the respondent’s brief “this
waiver may not be broad enough to constitute a valid waiver of [defendant]’s jury trial
rights .…” This does not end our inquiry, however.
17.
“When a defendant is deprived of a jury trial on aggravating facts used to justify
imposition of an upper term sentence, the reviewing court must apply the Chapman[5]
standard of review. [Citations.] Under that standard, ‘a sentence imposed under …
section 1170[, subdivision ](b) must be reversed and remanded unless the reviewing court
concludes beyond a reasonable doubt that a jury, applying that same standard, would
have found true all of the aggravating facts upon which the court relied to conclude the
upper term was justified, or that those facts were otherwise proved true in compliance
with the current statute.’ [Citations.] Lack of a jury trial is not harmless under Chapman
if ‘the record contains evidence that could rationally lead to a contrary finding’ with
respect to the aggravating fact at issue. [Citations.]” (Wiley, supra, 17 Cal.5th at
p. 1087.) Conversely, “failure to submit a sentencing factor to a jury may be found
harmless if the evidence supporting that factor is overwhelming and uncontested, and
there is no ‘evidence that could rationally lead to a contrary finding.’ [Citations.]”
(French, supra, 43 Cal.4th at p. 53.)
Here, the documents provided by the prosecution demonstrated overwhelmingly
and undisputedly that defendant had at least 11 prior convictions6 and served more than
5 Chapman v. California (1967) 386 U.S. 18.
6 California Rules of Court, rule 4.421(b)(2)’s circumstance in aggravation
requires a defendant’s prior convictions to be “numerous or of increasing seriousness.”
(Italics added.) Therefore, the circumstance may be established so long as one of these
factors is shown.
We recognize our Supreme Court held a determination as to whether a defendant’s
prior convictions are of increasing seriousness “requires a comparison and evaluation of
the relationship among a defendant’s prior convictions, and a determination as to their
relative seriousness. As a result, it involves something more than a narrow factual
finding that the convictions were sustained and what elements were required to prove
them.” (Wiley, supra, 17 Cal.5th at p. 1082.) By contrast, in the instant case, to find
defendant sustained at least 11 prior convictions, one need only look at his criminal
record to register this quantity and not engage in any “comparative and qualitative”
evaluation. (Id. at p. 1090.)
18.
one prior prison term. (See People v. Henley (1999) 72 Cal.App.4th 555, 561 [“A trier of
fact is entitled to draw reasonable inferences from certified records offered to prove a
defendant suffered a prior conviction and served a prison term.”].) Nothing in the record
contradicts these objective facts. Therefore, the failure to secure defendant’s express and
personal waiver of his right to a jury trial on the circumstances in aggravation was
harmless.
III. Boykin-Tahl admonitions were unwarranted.
“[B]efore 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.” (People v. Mosby (2004) 33 Cal.4th 353, 356 (Mosby),
citing In re Yurko (1974) 10 Cal.3d 857, 863; see Mosby, supra, at pp. 359–360 [Boykin-
Tahl admonitions].) Boykin-Tahl admonitions are required “for all guilty pleas in
criminal trials regardless of whether the defendant’s rights are derived from statute or
from the state or federal Constitution.” (People v. Cross (2015) 61 Cal.4th 164, 179
(Cross).) “Proper advisement and waivers of these [Boykin-Tahl] rights in the record
establish a defendant’s voluntary and intelligent admission of the prior conviction.”
(Mosby, supra, at p. 356.)
Case law “has drawn a distinction between, on one hand, ‘a defendant’s admission
of evidentiary facts which [does] not admit every element necessary to conviction of an
offense or to imposition of punishment on a charged enhancement’ and, on the other, ‘an
admission of guilt of a criminal charge or of the truth of an enhancing allegation where
nothing more [is] prerequisite to imposition of punishment except conviction of the
underlying offense.’ [Citation.] The requirements of Boykin-Tahl … apply to the latter
type of admission but not the former. [Citation.]” (Cross, supra, 61 Cal.4th at p. 171.)
19.
The key concern is whether “the defendant’s unwarned admission of prior convictions
automatically expose[s] him to increased punishment.” (Id. at p. 178.)
According to the record, defendant’s attorney filed a motion in limine asking the
court—among other things—to prohibit the prosecution from mentioning defendant’s
prior criminal acts. At the September 19, 2024 motion hearing, counsel specified he did
not want the prosecution to point out defendant was on parole for indecent exposure at
the time of the December 7, 2022 incident. The trial court proposed counsel could
stipulate defendant had a prior indecent exposure conviction so this information “would
not come in during the course of the trial” and the court would only need to instruct the
jury on indecent exposure without any reference to the earlier offense. After confirming
with the court this approach would ensure jurors “wouldn’t have any idea whether [there]
was a prior or not,” counsel so stipulated and the court told the prosecutor to “make sure
[his] [witnesses] don’t discuss that” and “[e]xplain to them to stay away from any prior
conviction by … defendant.” Five days later, at the September 24, 2024 pretrial hearing,
counsel reminded the court he “stipulated to the priors for the purposes of the jurors
getting the [indecent exposure] instruction without any knowledge of priors” and the
court “remember[ed]” this arrangement. The trial court and counsel agreed to bifurcation
of the prior conviction and aggravating circumstance allegations and counsel requested a
bench trial thereon. At the September 30, 2024 bench trial, the court reviewed the section
969b packet and the 22-page CLETS printout and found true (among other things) the
allegation defendant was previously convicted of indecent exposure on two separate
occasions, which—given the jury’s guilty verdict on court 4—“ma[de] [c]ount 4 a
felony.” The court added “the jury [did] not hear” about these prior convictions “per the
agreement.”
Without question, at the time of the September 19, 2024 stipulation, defendant—
who was present at the motion hearing—did not receive Boykin-Tahl admonitions.
However, these admonitions were unwarranted. In view of the foregoing circumstances,
20.
the stipulation was never intended to “waive[] any trial at all” (Cross, supra, 61 Cal.4th at
p. 173) on the prior indecent exposure allegations. In fact, the trial court conducted a
bifurcated bench trial thereon. (Cf. Mosby, supra, 33 Cal.4th at pp. 357–359 [no trial on
prior conviction allegation].) Per the court’s pronouncement, its true findings on the
prior indecent exposure allegations—not the jury’s verdict alone—elevated the
conviction on count 4 from a misdemeanor to a felony. In other words, the stipulation
did not “automatically expose[] [defendant] to increased punishment” (Cross, supra, at
p. 178) and the bench trial was “ ‘necessary … to imposition of punishment on a charged
enhancement’ ” (id. at p. 171).
IV. Substantial evidence supported the imposition of separate punishment on
count 3.
“An act or omission that is punishable in different ways by different provisions of
law may be punished under either of such provisions, but in no case shall the act or
omission be punished under more than one provision.” (§ 654, subd. (a).) Moreover,
“because [section 654] is intended to ensure that defendant is punished ‘commensurate
with his culpability’ [citation], its protection has been extended to cases in which there
are several offenses committed during ‘a course of conduct deemed to be indivisible in
time.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
“Whether a defendant may be subjected to multiple punishment under section 654
requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may
include not only a discrete physical act but also a course of conduct encompassing several
acts pursued with a single objective. [Citations.]” (People v. Corpening (2016) 2 Cal.5th
307, 311.) “At step one, courts examine the facts of the case to determine whether
multiple convictions are based upon a single physical act.” (Id. at p. 312.) “If so, the
defendant may not be punished more than once for that act.” (Id. at p. 311.) “Whether a
defendant will be found to have committed a single physical act for purposes of section
654 depends on whether some action the defendant is charged with having taken
21.
separately completes the actus reus for each of the relevant criminal offenses.” (Id. at
p. 313.) “Only if we conclude that the case involves more than a single act[, ]i.e., a
course of conduct[, ]do we then consider whether that course of conduct reflects a single
‘ “intent and objective” ’ or multiple intents and objectives. [Citations.]” (Id. at pp. 311–
312.) “It is defendant’s intent and objective, not the temporal proximity of his offenses,
which determine whether the transaction is indivisible.” (People v. Harrison, supra, 48
Cal.3d at p. 335.) “[I]f all of the offenses were merely incidental to, or were the means of
accomplishing or facilitating one objective, defendant may be found to have harbored a
single intent and therefore may be punished only once.” (Ibid.) “If, on the other hand,
defendant harbored ‘multiple criminal objectives,’ which were independent of and not
merely incidental to each other, he may be punished for each statutory violation
committed in pursuit of each objective, ‘even though the violations shared common acts
or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (Ibid.)
“The question of whether the acts of which defendant has been convicted
constitute an indivisible course of conduct is primarily a factual determination, made by
the trial court on the basis of its findings concerning the defendant’s intent and objective
in committing the acts.” (People v. Lee (1980) 110 Cal.App.3d 774, 786; accord, People
v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) “Its findings on this question must be
upheld on appeal if there is any substantial evidence to support them.” (People v.
Hutchins (2001) 90 Cal.App.4th 1308, 1312; see People v. Blake (1998) 68 Cal.App.4th
509, 512 [“A trial court’s implied finding that a defendant harbored a separate intent and
objective for each offense will be upheld on appeal if it is supported by substantial
evidence.”].) “ ‘We must “view the evidence in a light most favorable to the respondent
and presume in support of the [sentencing] order the existence of every fact the trier
could reasonably deduce from the evidence. [Citation.]” [Citation.]’ [Citation.]”
(People v. Hutchins, supra, at pp. 1312–1313.)
22.
The record—viewed in the light most favorable to the People—shows defendant
did not want to return to jail. While handcuffed, he “dropped his weight to the ground”
so he would not be placed in the parole agents’ vehicle. While parole agents Melvin G.
and Monique D. were in the process of moving defendant into the vehicle, defendant
“flailed his legs” and tried to headbutt them. He even kicked Melvin multiple times.
This conduct completed the actus reus for each charge of obstructing or resisting an
executive officer in the performance of his or her duties (counts 1 and 2). (See People v.
Morgan (2026) 19 Cal.5th 132, 139 [“Section 69[, subdivision (a)] makes it a crime to
‘attempt[], by means of any threat or violence, to deter or prevent an executive officer
from performing any duty imposed upon the officer by law’ and to ‘knowingly resist[],
by the use of force of violence, the officer, in the performance of his or her duty.’ ”]; see
also People v. Martin (2005) 133 Cal.App.4th 776, 781–783 [discussing § 654’s
“multiple-victim exception”].)
Despite defendant’s efforts, he was eventually placed inside the vehicle. When
Monique tried to buckle the seatbelt, defendant spat on her and then bit her twice, first on
her left wrist and then on her right wrist (which drew blood). The spitting and the biting
completed the actus reus for the battery charge (count 3). (See § 242 [“A battery is any
willful and unlawful use of force or violence upon the person of another.”]; People v.
Hamilton (2009) 45 Cal.4th 863, 934 [spitting]; People v. Atkins (1975) 53 Cal.App.3d
348, 362 [biting].) While defendant insists the resisting and the battery were “committed
concurrently” toward “one objective,” i.e., “to avoid going back to jail,” substantial
evidence supported a finding that the battery was so gratuitous as a “means to achieve
[that] objective” that it cannot “be termed ‘incidental’ and must be considered to express
a different and more sinister goal than mere successful commission of the original
crime.” (People v. Nguyen (1988) 204 Cal.App.3d 181, 191; see ibid. [“[Section 654]
cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far
23.
beyond those reasonably necessary to accomplish the original offense.”].) Hence, we
conclude the imposition of separate punishment on count 3 was appropriate.
DISPOSITION
The judgment is affirmed.
DETJEN, J.
WE CONCUR:
LEVY, Acting P. J.
SANDHU, J.
24.