People v. Truschke CA3 ( 2021 )

Filed 5/26/21 P. v. Truschke CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C090715
Plaintiff and Respondent, (Super. Ct. No. 18F2203)
v.
JAMES EDWARD TRUSCHKE, JR.,
Defendant and Appellant.
Defendant, James Edward Truschke, Jr., appeals his conviction for carrying a
concealed dirk or dagger (Pen. Code, § 21310)1 contending: (1) there was insufficient
evidence the knife qualified as a dirk or a dagger; (2) the conviction violated equal
protection because a person who possesses a dirk or dagger is similarly situated to one
who possesses a pocketknife or openly carries a knife; (3) the conviction violates the
1 Undesignated statutory references are to the Penal Code.
1
Second Amendment; (4) the trial court erred in permitting the officer to express an
opinion as to defendant’s guilt and testify as to a legal conclusion; (5) the five 1-year
prior prison term enhancements should be stricken under Senate Bill No. 136 (2019-2020
Reg. Sess.) (Senate Bill 136); and (6) the prior strike enhancement must be stricken,
because the record does not demonstrate he knowing and intelligently waived his right to
trial on the prior convictions. The conviction is affirmed. We agree, however, that the
prior prison term and prior strike enhancements must be stricken and remand the matter
for further proceedings.
FACTUAL BACKGROUND
Officer Darren Hull, of the Redding Police Department, responded to a report of
loitering in a vacant parking lot and contacted defendant. Defendant was wearing heavy
clothing, including a jacket zipped to the top. While Hull was on the radio, defendant
started to unzip his jacket and appeared to be reaching inside. Hull told him to stop and
walked around defendant. The jacket was partially open, and Hull could see a metal
handle of what appeared to be a knife. The rest of the knife was concealed under
defendant’s jacket. Hull removed the knife from defendant. The knife was in a sheath
that was secured to defendant’s torso, around his ribcage by a strap. The upper half of
the sheath rested at about the midcenter of defendant’s chest and pointed downward
toward the left of his torso. The knife was a fixed blade, survival-type knife,
approximately 10 inches from the tip of the blade to the end of the handle. The blade was
approximately the same length as the handle. There were no moving mechanisms or
hinges. It appeared to be a working knife with a sharp tip and edge. The sheath had a
strap that would ordinarily secure the knife in the sheath, but the strap was very torn and
weathered and it was not secured when Hull contacted defendant.
Based on his training and experience, Hull opined the knife could be used, without
modification, as a stabbing weapon and if so used, would cause significant injury. Hull
2
also believed the knife could have been easily drawn from the sheath. Defense counsel
did not object to this testimony.2
Defendant told Hull he had just found the knife and wanted to give it to the
officer, because he knew he was not supposed to have it.
PROCEDURAL HISTORY
Defendant was charged by information with carrying a concealed dirk or dagger
(§ 21310). The information further alleged defendant had a prior strike conviction
(§§ 667, subds. (b)-(i), 1170.12) and had served six prior prison terms (§ 667.5,
subd. (b).) A jury found defendant guilty, and, in bifurcated proceedings, defendant
admitted the prior conviction allegations. Subsequently, one of the convictions that
served as the basis for one of the prior prison term enhancements was reduced to a
misdemeanor and stricken.
The trial court sentenced defendant to a term of seven years eight months;
consisting of the lower term of 16 months, doubled pursuant to the prior strike, plus five
1-year terms for the prior prison term enhancements.
DISCUSSION
I
Substantial Evidence
Defendant contends there is not substantial evidence to support his conviction for
carrying a concealed dirk or dagger. Specifically, he contends there is not sufficient
evidence that the knife qualified as a dirk or dagger because it was in a sheath and
2 Prior to testifying as to his opinion based on his training and experience, defendant
objected to Hull’s opinion based on a lack of foundation. The court sustained the
objection. The prosecution laid a foundation as to Hull’s experience and training
regarding knives, weapons, defensive tactics, and wounds inflicted by knives, and
re‑asked the question seeking Hull’s opinion. Defense counsel again objected based on a
lack of foundation. The trial court overruled the objection. Defense counsel offered no
further objections to Hull’s opinions.
3
secured to his person, thus he would have had to use an “intervening mechanism” to use
the knife.
“ ‘In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ ” (People v. Steele (2002) 27 Cal.4th 1230,
1249.) We presume in support of the judgment the existence of every fact that could
reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
We reverse for lack of substantial evidence only if “ ‘upon no hypothesis whatever is
there sufficient substantial evidence to support [the conviction].’ ” (People v. Bolin
(1998) 18 Cal.4th 297, 331.)
Section 21310 generally prohibits carrying a concealed “dirk or dagger,” “but
provides exceptions for (1) a knife placed in a sheath and visibly suspended from the
waist and (2) a nonswitchblade folding or pocketknife if the blade is not exposed and
locked.” (People v. Mitchell (2012) 209 Cal.App.4th 1364, 1371 (Mitchell).) The term
“dirk or dagger” is defined as “a knife or other instrument with or without a handguard
that is capable of ready use as a stabbing weapon that may inflict great bodily injury or
death.” (§ 16470.) “[T]he prohibition against carrying a concealed dirk or dagger is
designed to give third parties the opportunity to protect themselves from the risk of a
surprise attack by a person carrying a weapon. [Citation.] The openly displayed
sheathed knife exception does not detract from the statutory purpose because the bearer’s
possession of the knife is visible. Similarly, the folding or pocketknife exception is
consistent with the statute’s objective because folded knives are not capable of ready use
‘without a number of intervening machinations that give the intended victim time to
anticipate and/or prevent an attack.’ [Citation.]” (Mitchell, at pp. 1371-1372.)
Defendant contends his sheathed knife falls within this exception because it was
not readily accessible and capable of use as a stabbing instrument. To support this claim,
4
defendant relies on People v. Sisneros (1997) 57 Cal.App.4th 1454 (Sisneros) and In re
Luke W. (2001) 88 Cal.App.4th 650 (Luke W.). (AOB 19-21) He contends that his knife
is no different than the knives in Sisneros or Luke W. We disagree.
Sisneros and Luke W. both involved a unique object that could be turned into a
weapon only through a series of precise movements to expose and attach a separate
blade. (Sisneros, supra, 57 Cal.App.4th at p. 1457; Luke W., supra, 88 Cal.App.4th at
p. 655.) The device at issue in Sisneros was a cylinder which, had to be unscrewed a full
five revolutions to reveal the blade and then screwed back five revolutions to attach the
blade to the handle. (Sisneros, at pp. 1455, 1457.) Because it required assembly before it
could be used as a knife, the “gizmo” was not capable of ready use as a stabbing weapon.
(Id. at p. 1457.) In Luke W., the device was designed to look like a credit card and
function like a “Swiss Army pocketknife,” housing a variety of tools. (Luke W., at
p. 655.) To access the knife, a person had to use both hands, one hand to hold the device
and the thumb and forefinger of the other hand to pull on specific ridged circles to release
the knife. (Id. at p. 654.) The object fell within the pocketknife exception to the statutory
definition of a dirk or dagger, as it could easily fit in a pocket of any article of clothing,
the knife blade could not be easily extracted from its slot without manual manipulation
using both hands, and the object was not a switchblade. (Id. at pp. 656-657.)
Unlike the objects in Sisneros and Luke W, defendant’s knife required no
manipulation to be turned into a weapon. Defendant’s knife was a survival-type knife
that was 10 inches long, with a fixed blade approximately five inches long, and a sharp
tip and edge that could inflict serious injury. The knife was neither a “gizmo” or novelty
item that required assembly or several intervening manipulations to be capable of use as a
stabbing weapon. (Compare Sisneros, supra, 57 Cal.App.4th at p. 1457; Luke W., supra,
88 Cal.App.4th at p. 656.) The only movement required was to remove it from its sheath.
The only impediment to using the knife as a stabbing weapon might have been the strap
securing the knife in place, but that strap was worn and not attached when defendant was
5
stopped. The sheath protected defendant from injury while the knife was strapped to his
torso, but it did not prevent him from readily using the knife as a dangerous stabbing
weapon. Accordingly, the knife falls within the statutory definition of a dirk or dagger.
II
Equal Protection
Defendant contends that if his sheathed knife fits the statutory definition of a dirk
or dagger, then his conviction under section 21310 violates the equal protection clauses
of the state and federal Constitutions. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.)
Recognizing that this claim is forfeited based on counsel’s failure to object in the trial
court, defendant also claims the failure to object was ineffective assistance of counsel.
To establish ineffective assistance of counsel, “the defendant must first show
counsel’s performance was deficient, in that it fell below an objective standard of
reasonableness under prevailing professional norms. Second, the defendant must show
resulting prejudice . . . . When examining an ineffective assistance claim, a reviewing
court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel
acted within the wide range of reasonable professional assistance.” (People v. Mai
(2013) 57 Cal.4th 986, 1009.)
“The concept of equal protection recognizes that persons who are similarly
situated with respect to a law’s legitimate purposes must be treated equally. [Citation.]
Accordingly, ‘ “[t]he first prerequisite to a meritorious claim under the equal protection
clause is a showing that the state has adopted a classification that affects two or more
similarly situated groups in an unequal manner.” ’ [Citation.] ‘This initial inquiry is not
whether persons are similarly situated for all purposes, but “whether they are similarly
situated for purposes of the law challenged.” ’ ” (People v. Brown (2012) 54 Cal.4th 314,
328, italics omitted.) “If the two groups are not similarly situated or are not being treated
differently, then there can be no equal protection violation. However, if these threshold
requirements are met, a court must next ascertain whether the Legislature has a
6
constitutionally sufficient reason to treat the groups differently. [Citation.] Unless the
groups are defined by word or effect as members of a ‘suspect class’ (such as race,
national origin, gender, or illegitimacy, to name a few) or the law affects a fundamental
right, a law will be upheld as long as there is any ‘ “ ‘rational relationship between the
disparity of treatment and some legitimate governmental purpose,’ ” ’ even if the rational
basis for that law was never articulated by—or even relied on by—the Legislature.”
(People v. Castel (2017) 12 Cal.App.5th 1321, 1326-1327.)
Defendant contends that people who carry sheathed knives are similarly situated to
people who carry pocketknives for purposes of applying a law that punishes the
concealment of knives that are readily accessible. He reasons that just as the blade of a
pocketknife cannot be easily extracted because of its “snug fit,” a sheath makes a knife
difficult to extract. Defendant further contends there is no compelling reason or rational
basis for distinguishing between these two types of knives because a sheathed knife is
just as difficult to extract as a pocketknife and both provide third parties with time to
prepare for a confrontation. We are not persuaded.
Section 21310 proscribes the concealed carrying of a knife to protect people who
come in contact with the knife carrier. The prohibition is designed to prevent surprise
attacks, which can occur when a concealed knife is capable of ready use as a dangerous
weapon. (Mitchell, supra, 209 Cal.App.4th at p. 1371.) Thus, the law targets weapons
that are not just easy to access but easy to use on unsuspecting third parties. For purposes
of this law, people who carry pocketknives are not similarly situated to people who
conceal sheathed knives on their person. The time required to retrieve a closed
pocketknife from inside one’s clothing and then open its blade and lock it into place
reduces the element of surprise, giving third parties the opportunity to protect themselves.
By contrast, a knife that is sheathed will often be much easier to locate and the dexterity
required to pull the knife from its sheath is materially different from the process of
opening a blade from a pocketknife and locking it into place.
7
Moreover, because pocketknives are different from sheathed knives both in terms
of appearance and utility, there is a rational basis for treating them differently. Under
section 16470, for a pocketknife to be capable of ready use as a dangerous stabbing
weapon, the blade must be open and locked into place. A knife with a fixed blade will
always be open and locked into place, whether or not it is sheathed. In this sense, a
sheath is like a handguard, which offers protection to the knife user without impeding its
ready use as a dangerous weapon, and the Legislature has concluded that a knife with a
fixed open blade qualifies as a dirk or dagger whether or not it is equipped with a
handguard. (§ 21310.)
These flaws in defendant’s equal protection theory preclude him from carrying his
burden of proving ineffective assistance of counsel. “Counsel does not render ineffective
assistance by failing to make motions or objections that counsel reasonably determines
would be futile.” (People v. Price (1991) 1 Cal.4th 324, 387.) Because people who
conceal sheathed knives on their person are not similarly situated to people who carry
pocketknives and because there is a rational basis for different treatment of these two
distinct groups, defendant’s trial counsel could have concluded reasonably that objecting
to his conviction on equal protection grounds would have been futile.
III
Second Amendment
Defendant contends that if his knife fits the statutory definition of a dirk or dagger
then section 21310 violates the Second Amendment of the federal Constitution because
its restriction on his right to bear arms in self-defense is not narrowly tailored to a
legitimate government objective. Again, this claim was forfeited because it was not
raised below. Thus, we turn to defendant’s fallback position that the failure to make a
Second Amendment challenge constituted ineffective assistance of counsel.
Defendant argues that competent defense counsel would have argued that his
conviction violates the Second Amendment under the reasoning of Mitchell, supra,
8
209 Cal.App.4th 1364. In Mitchell, the court rejected defendant’s claim that former
section 12020, the predecessor to section 21310, violated the Second Amendment.
Relying on authority rejecting Second Amendment challenges to statutes restricting the
carrying of concealed firearms, the Mitchell court found that former section 12020 was
“narrowly tailored to serve the important governmental interest of preventing exposure to
the risk of surprise attacks and [did] not burden the right to bear arms in self-defense
beyond what [was] reasonably necessary to serve that interest.” (Mitchell, at p. 1375-
1376.) In reaching this conclusion, the court reasoned as follows: “[A]n instrument
qualifies as a dirk or dagger only if it is a knife or other instrument capable of ready use
as a stabbing weapon that may inflict great bodily injury or death; hence, the statute is
narrowly restricted to concealed stabbing instruments that pose a serious threat to
physical safety. Further, the statute does not apply to the open carrying of a dirk or
dagger, and it excludes from its coverage an openly suspended sheathed knife, as well as
nonswitchblade folding and pocketknives kept in a closed or unlocked position. Thus,
the statute provides other means of carrying a dirk or dagger for self-defense.” (Id. at
p. 1375.)
Defendant contends that Mitchell establishes that a restriction on the right to carry
a knife for self-defense can be justified under the Second Amendment only if it is
“capable of ready use,” whereas he was convicted of possessing a weapon that was not
capable of ready use because it was sheathed. As explained above, we reject the factual
premise of this claim; the trial evidence did not compel the jury to find that defendant’s
sheath prevented him from easily accessing and readily using his knife as a dangerous
stabbing weapon. Furthermore, section 21030 provides means of carrying a dirk or
dagger for self-defense that do not pose the same serious threats to physical safety as a
concealed stabbing instrument like the one removed from defendant’s body.
9
In short, with Mitchell as the governing authority, defense counsel’s failure to
make a Second Amendment challenge in this case was not ineffective assistance of
counsel. (See People v. Price, supra, 1 Cal.4th at p. 387.)
IV
Admission of Officer Hull’s Opinion Testimony
Defendant contends the trial court erred in admitting Hull’s testimony that the
knife was readily capable of use as a stabbing device. Again recognizing counsel did not
object to the testimony on this basis, defendant also contends counsel was ineffective in
failing to object.
To preserve a claim that a trial court erroneously admitted evidence, a defendant
must make a clear, specific, and timely objection at trial. (Evid. Code, § 353.) The
failure to do so forfeits the claim on appeal. (People v. Partida (2005) 37 Cal.4th 428,
434 [a defendant’s failure “ ‘ “to make a timely and specific objection” on the ground
asserted on appeal makes that ground not cognizable’ ” on appeal].) Accordingly,
defendant’s claim that the trial court erred is forfeited.
Turning to the claim that the failure to object was ineffective assistance of counsel,
as above, to establish ineffective assistance of counsel, defendant must show that his
counsel’s representation fell below the standard of a competent advocate and a reasonable
probability exists that, but for counsel’s errors, the result would have been different.
(Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 [80 L.Ed.2d 674]
(Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) A “ ‘reasonable
probability’ ” is a probability sufficient to undermine confidence in the outcome. (People
v. Bolin, supra, 18 Cal.4th at p. 333.) “The likelihood of a different result must be
substantial, not just conceivable.” (Harrington v. Richter (2011) 562 U.S. 86, 112
[178 L.Ed.2d 624].) Surmounting Strickland’s high bar is thus never an easy task.
(Harrington, at p. 105 [Strickland’s high bar must be applied with scrupulous care since
10
ineffective assistance claims can function as a way to escape rules of waiver and
forfeiture and raise issues not presented at trial].)
“Whether to object to arguably inadmissible evidence is a tactical decision . . . .”
(People v. Maury (2003) 30 Cal.4th 342, 415.) “[B]ecause trial counsel’s tactical
decisions are accorded substantial deference, failure to object seldom establishes
counsel’s incompetence.” (Id. at pp. 415-416.) Nevertheless, we need not decide
whether counsel had a reasonable tactical basis for omitting an objection because we
conclude defendant has not shown the requisite prejudice necessary to support his
ineffective assistance of counsel claim. (Strickland, supra, 466 U.S. at p. 697.)
There is not a reasonable probability that, but for the admission of Hull’s
testimony that the knife was readily capable of being used as a stabbing weapon, the
result would have been different. First, defendant had ample opportunity to cross-
examine Hull, dispelling any possible prejudice. (People v. Bradley (2012)
208 Cal.App.4th 64, 84.) Moreover, the knife and the sheath themselves were admitted
in evidence and shown to the jury. The knife was approximately 10 inches long, with a
five-inch fixed blade, sharp tip and edge. The sheath had a strap that would ordinarily
secure the knife and perhaps make it less readily accessible, but that strap was worn out
and not secured. The jury saw pictures of how defendant had the knife attached to his
body and the sheath in which it was contained, including the worn out, unsecured strap.
In addition, Hull testified as to the character of the knife, how defendant was carrying it,
and the extent to which the knife was concealed. On this record, defendant has not met
his burden of establishing prejudice.
V
Prior Prison Term Enhancements
Defendant contends, and the People agree, that recently enacted Senate Bill 136
that limits the prior offenses that qualify for a prior prison term enhancement under
section 667.5, subdivision (b), applies retroactively to his case. We agree.
11
On October 8, 2019, the Governor signed Senate Bill 136 (2019-2020 Reg. Sess.)
that amended section 667.5, effective January 1, 2020 (Stats. 2019, ch. 590, § 1). This
bill narrowed the eligibility for the one-year prison prior enhancement to those who have
served a prior prison sentence for a sexually violent offense, as defined. The statute as
amended now provides: “Except where subdivision (a) applies, where the new offense is
any felony for which a prison sentence or a sentence of imprisonment in a county jail
under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and
consecutive to any other sentence therefor, the court shall impose a one-year term for
each prior separate prison term for a sexually violent offense as defined in subdivision (b)
of Section 6600 of the Welfare and Institutions Code, provided that no additional term
shall be imposed under this subdivision for any prison term served prior to a period of
five years in which the defendant remained free of both the commission of an offense
which results in a felony conviction, and prison custody or the imposition of a term of jail
custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not
suspended.” (§ 667.5, subd. (b).)
We agree with the parties that Senate Bill 136’s amendment should be applied
retroactively in this case. Whether a particular statute is intended to apply retroactively is
a matter of statutory interpretation. (See People v. Superior Court (Lara) (2018)
4 Cal.5th 299, 307 [noting “the role of a court is to determine the intent of the
Legislature”].) Ordinarily, new criminal legislation is presumed to apply prospectively
unless the statute expressly declares a contrary intent. (§ 3.) Where the Legislature has
reduced punishment for criminal conduct, an inference arises under In re Estrada (1965)
63 Cal.2d 740 “ ‘that, in the absence of contrary indications, a legislative body ordinarily
intends for ameliorative changes to the criminal law to extend as broadly as possible,
distinguishing only as necessary between sentences that are final and sentences that are
not.’ ” (Lara, at p. 308.) Conversely, the Estrada rule “ ‘is not implicated where the
Legislature clearly signals its intent to make the amendment prospective, by the inclusion
12
of an express saving clause or its equivalent.’ ” (People v. Floyd (2003) 31 Cal.4th 179,
185, italics omitted.)
Here, Senate Bill 136 narrowed who was eligible for a section 667.5, subdivision
(b) prison prior enhancement, thus rendering ineligible many individuals, including
defendant, whose prior prison history no longer includes a qualifying offense. There is
nothing in the bill or its associated legislative history that indicates an intent that the court
not apply this amendment to all individuals whose sentences are not yet final. Under
these circumstances, we conclude Estrada’s inference of retroactive application applies.
(See, e.g., People v. Nasalga (1996) 12 Cal.4th 784, 797-798 [applying In re Estrada,
supra, 63 Cal.2d 740 inference of retroactivity to legislative changes to § 12022.6, subds.
(a) & (b) enhancements].) Defendant’s judgment was not final when the statute took
effect, thus entitling him to its benefits. (See People v. Vieira (2005) 35 Cal.4th 264,
305-306 [defendant entitled to retroactive application of criminal statute that takes effect
during the time defendant has to appeal to the Supreme Court].) Accordingly, we will
modify the judgment to strike defendant’s prior prison term enhancements. Because the
trial court imposed the lower term at sentencing, it is appropriate to remand this matter
for resentencing to allow the trial court to revisit its sentencing choices in light of the
changed circumstances. (See People v. Jennings (2019) 42 Cal.App.5th 664, 682
[remanding for resentencing following striking of enhancements in light of Senate Bill
136]; People v. Francis (2017) 16 Cal.App.5th 876, 887 [remand unnecessary where
court could not alter sentence to compensate for the loss of enhancements].)
VI
Prior Strike Enhancement
Defendant contends his prior strike enhancement should be stricken because the
record does not affirmatively show he knowingly and intelligently waived his right to a
trial on the truth of the priors.
13
Additional Relevant Background
On the same day defendant was served with the arrest warrant, he was also
provided with, and signed, a written advisement of rights. The advisement included the
right to a jury trial, the right to cross-examine witnesses, and the right against self-
incrimination. Although the referenced charging document charged defendant with
carrying a concealed dirk or dagger, a prior strike conviction, and six prior prison term
enhancements, the form did not advise defendant these rights also applied to the prior
strike conviction.
In the pretrial hearing on the motions in limine, held before defendant indicated he
would admit the prior strike conviction, the court and the parties discussed a number of
possible issues surrounding the implications of whether defendant chose to testify or not,
including possible impeachment with prior convictions and admonitions to the jury about
not drawing negative inferences if he did not choose to testify. At this pretrial hearing,
defense counsel indicated defendant would admit the prior strike conviction and prior
prison terms. The trial court advised defendant if the jury found him guilty, by admitting
the priors, he would be giving up his right to a trial. Defendant indicated he understood
and was giving up that right. Defendant was not further advised of his right to cross-
examination or against self-incrimination specifically relative to the prior strike
conviction. Defense counsel concurred in the waiver. Defendant admitted he had
sustained a prior robbery conviction and admitted serving six prior prison terms.
Analysis
When accepting a defendant’s admission of prior convictions, the trial court must
advise the defendant of his or her “ ‘right to confrontation, to a jury trial, and against self-
incrimination, as well as the nature of the charge and the consequences of his [or her]
plea.’ ” (People v. Lloyd (2015) 236 Cal.App.4th 49, 57, quoting In re Tahl (1969)
1 Cal.3d 122, 132; In re Yurko (1974) 10 Cal.3d 857, 863.) For a waiver of these
constitutional rights to be valid, it must be knowing, intelligent, and voluntary. (Boykin
14
v. Alabama (1969) 395 U.S. 238, 241-244 [23 L.Ed.2d 274].) The lack of express
advisement, and waiver, of each of the Boykin-Tahl rights constitutes reversible error
unless “the record affirmatively shows that [the admission] is voluntary and intelligent
under the totality of the circumstances.” (People v. Howard (1992) 1 Cal.4th 1132, 1175;
People v. Mosby (2004) 33 Cal.4th 353, 360.) The focus of the analysis is not “whether
the defendant received express rights advisements, and expressly waived them, [but]
whether the defendant’s admission was intelligent and voluntary because it was given
with an understanding of the rights waived.” (Mosby, at p. 361.) The reviewing court
must go beyond the record of the plea colloquy and review the entire record. (Ibid.)
Moreover, “ ‘a defendant’s prior experience with the criminal justice system’ is . . .
‘relevant to the question [of] whether he [or she] knowingly waived constitutional rights.’
[Citation.] That is so because previous experience in the criminal justice system is
relevant to a recidivist’s ‘ “knowledge and sophistication regarding his [or her] [legal]
rights.” ’ [Citations.]” (Id. at p. 365, fn. omitted.)
We review the totality of the circumstances whether the trial court failed, “either
partially or completely, to advise and take waivers of the defendant’s trial rights before
accepting a guilty plea.” (People v. Farwell (2018) 5 Cal.5th 295, 303.) We examine the
record to determine if the record “affirmatively shows” that the defendant’s waiver of
constitutional rights was voluntary and intelligent. (People v. Howard, supra, 1 Cal.4th
at p. 1179.)
Here, before taking his admission on the prior convictions, the trial court advised
defendant only of his right to a jury trial. The record does not affirmatively demonstrate
defendant had an understanding of the rights he was waiving as to the prior strike
conviction. Defendant had received a written advisement of his rights, including his right
to confront witnesses, and against self-incrimination; however, nothing in that
advisement indicates those rights also apply to the prior strike conviction. Defense
counsel concurred in the waiver, but the record does not indicate counsel had spoken with
15
defendant about his rights and their applicability to his prior strike conviction. Defendant
waived his rights prior to exercising his rights in the jury trial on the substantive offenses.
(See People v. Cross (2015) 61 Cal.4th 164, 180.) Defendant has had significant prior
experience in the criminal justice system. However, nothing in the record indicates how
those cases were resolved or whether defendant was properly advised of his rights as to
prior convictions or availed himself of those rights in those prior cases. “Given the lack
of information regarding appellant’s prior convictions . . . and the lack of other facts
demonstrating an awareness and comprehension of his constitutional rights, we cannot
infer that appellant’s prior experience in the criminal justice system demonstrated his
present knowledge and understanding of his rights.” (People v. Christian (2005) 125
Cal.App.4th 688, 697-698; see People v. Daniels (2017) 3 Cal.5th 961, 1001 (conc. &
dis. opn. of Cuéllar, J.) That is, “[t]he court did not ask whether [defendant] had
discussed the [admission] with his lawyer; nor did it ask any questions of [defendant]
personally or in any way inform him of his right to a fair determination of the prior
conviction allegation. [Citation.] The [admission] occurred [prior to defendant
exercising his trial rights]. [Citation.] Further, we have no information on how the
alleged prior conviction was obtained. [Citation.]” (Cross at p. 180.) Moreover, there
was no discussion of the penal consequences of the admission. “[N]othing in the record
affirmatively shows that [defendant] was aware of his right to a fair determination of the
truth of the prior conviction allegation.” (Ibid.) On this record, we conclude defendant’s
prior strike conviction enhancement must be stricken.
16
DISPOSITION
The prior prison term and prior strike conviction enhancements are stricken. The
remaining conviction is affirmed. The matter is remanded to the trial court for possible
retrial of the prior strike conviction enhancement and resentencing consistent with this
opinion.
/s/
HOCH, J.
We concur:
/s/
BLEASE, Acting P. J.
/s/
KRAUSE, J.
17