People v. Phillips CA2/8 ( 2023 )

Filed 4/7/23 P. v. Phillips CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B318690
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA496239-02)
v.
DEMETRICE PHILLIPS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Richard S. Kemalyan, Judge. Affirmed.
Charles T. Anderson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan S. Pithey, Assistant Attorney
General, Scott A. Taryle and Stefanie Yee, Deputy Attorneys
General, for Plaintiff and Respondent.
_________________________________
INTRODUCTION
A jury convicted Demetrice Phillips of fleeing a police
vehicle while driving recklessly and against traffic, in violation of
Vehicle Code sections 2800.2 and 2800.4. Phillips testified at
trial and admitted to a previous conviction for felony robbery, a
fact admitted into evidence for impeachment purposes. After the
jury returned a guilty verdict, Phillips waived a second jury trial
on his prior conviction and stipulated to its truth.
Phillips appealed. He argues that the trial court, before
accepting his admission of the prior conviction, failed to
adequately advise him of his rights and of the consequences of his
admission. The totality of the circumstances shows that Phillips
knowingly waived his rights. Phillips forfeited his claim that the
trial court failed to inform him of the consequences of his
admission by failing to raise any objection below. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We recite only those facts applicable to the narrow issues
on appeal.
In September 2021, Phillips was charged by information
with count 1, Penal Code section 211, robbery; count 2, Vehicle
Code section 2800.2, fleeing a police officer while driving
recklessly; and count 3, Vehicle Code section 2800.4, fleeing a
police officer while driving in the opposite direction of traffic.
The information also alleged that Phillips had been
convicted of violating Penal Code section 211 once before, in
January 2017. The information stated that this was a “serious
and/or violent felony” that would subject Phillips to sentencing
under the “Three Strikes” law. It listed the effect of the specific
applicable section, Penal Code 1170.12(b), as “x 2” as to each
count.
2
Phillips asked that the trial on his current charges and the
trial on the strike prior allegation be bifurcated. The trial court
granted the request. The trial court told Phillips that after the
jury was sent out to deliberate, it would need to know how
Phillips “wish[ed] to have the bifurcation handled, whether you
want it tried before the jury or the court, or there will be a
stipulation.”
Phillips was tried by jury in December 2021. Before he
testified, the trial court told him that “nobody can compel you to
testify in this case. You know that I cannot compel you to testify.
[The attorney], representing the people[] cannot compel you nor
can your own attorney . . . compel you to take the stand and
testify. So what I’m asking you, sir, being knowledgeable as to
your rights and being so counseled by Mr. . . . and the court now
so advising you, is it your desire to give up your Fifth
Amendment right and to testify in the case?” Phillips answered,
“yes.”
After argument from both parties, the trial court ruled that
the People could impeach Phillips at trial with his 2017
conviction for robbery and a sustained juvenile petition.1 Phillips
admitted to his 2017 conviction for robbery on both direct and
cross examination.
Once the jury began its deliberations, the trial court asked
Phillips how he wanted to proceed on the prior conviction
allegation. Phillips’s counsel said that he would waive a jury
trial, and the court then told Phillips that he had a right to a
“formal jury trial on your prior conviction . . . you have the right
1 The juvenile adjudication was not alleged as a strike prior
and is not raised as an issue in this appeal.
3
to have this jury determine the validity and correctness of your
prior conviction . . . .” Phillips then told the court he wanted to
waive a jury trial and counsel joined in the waiver.
When the jury returned its guilty verdicts, the trial court
told Phillips that it would set a future hearing for two purposes:
“One is the priors trial, which is indicated to be a bench trial, or
we will of course allow the defendant to determine if he wants to
stipulate to the priors,” and “for sentencing, unless, [counsel],
there’s going to be a stipulation and admission today on that
prior.” Counsel then replied that there was going to be a
stipulation that day.
The trial court then took Phillips’s admission by stating,
“Mr. Phillips, in this matter, the People have alleged—you
previously having waived your right to a jury trial on your prior
conviction, the People have alleged in this matter that you were
convicted on January 25th, 2017, of a violation of Penal Code
section 211 in the Los Angeles Superior Court in case number
TA141940. [¶] You have the right to a bench trial, a court trial
on that matter, having waived jury trial, but you also are entitled
at this time to stipulate such that you are agreeing that that is a
true and correct conviction as alleged. Is that what you wish to
do in this matter?” Phillips responded, “Yes,” and his counsel
joined in the stipulation.
The record does not reflect that the trial court advised
Phillips of his rights to remain silent or to confront witnesses
before Phillips stipulated to his 2017 conviction. It also does not
reflect that the trial court told Phillips the specific consequences
his admission to this prior conviction would have on his sentence.
At sentencing, the court denied probation, finding Phillips
ineligible based on his prior conviction. Then, as to count 2, the
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court sentenced Phillips to “two years, which is doubled to four
years pursuant to the three strikes law” due to the prior
conviction. As to count 3, the court again sentenced Phillips to
“two years, doubled to four years,” before staying the sentence on
that count under section 654.
This appeal followed.
DISCUSSION
On appeal, Phillips argues that the record fails to
demonstrate that he understood his right to remain silent before
stipulating to his prior robbery conviction or the precise
consequences of his admission.2 The People counter that the
record establishes that Phillips voluntarily and intelligently
waived his rights before admitting to his prior robbery conviction.
The People also argue that Phillips has forfeited his claim that
the trial court failed to inform him of the specific consequences of
his admission and that, even if he had not waived this claim, he
has not established prejudice. We agree with the People and
affirm in all respects.
I. The Totality of the Circumstances Establishes That
Phillips Knowingly and Voluntarily Waived His
Rights.
“[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
2 Phillips does not develop any specific argument regarding
the trial court’s failure to inform him of his right to confront
witnesses, and simply mentions this fact in the “introduction” to
his opening brief.
5
right to confront adverse witnesses. [Citation.] Proper
advisement and waivers of these rights in the record establish a
defendant’s voluntary and intelligent admission of the prior
conviction.” (People v. Mosby (2004) 33 Cal.4th 353, 356 (Mosby).)
These are commonly referred to as the defendant’s Boykin-Tahl
rights and the Boykin-Tahl advisal. (See id. at p. 360; In re Tahl
(1969) 1 Cal.3d 122, 132; Boykin v. Alabama (1969) 395 U.S. 238,
243–244.)
The failure to provide this advisal before a defendant’s
admission to a prior conviction does not warrant an automatic
reversal. Rather, we must determine whether the admission of
the prior conviction was “ ‘voluntary and intelligent under the
totality of the circumstances.’ ” (Mosby, supra, 33 Cal.4th at
p. 360, italics omitted.) The specific question before us is
“whether the defendant’s admission was intelligent and
voluntary because it was given with an understanding of the
rights waived,” and to answer this question we must go “beyond
the courtroom colloquy” and examine the entire record. (Id. at
p. 361.) In evaluating the totality of the circumstances, a
defendant’s previous experience with the criminal justice system
is considered because it is relevant to whether the defendant
knew he had the rights to remain silent and to confront adverse
witnesses. (Id. at p. 365.)
We conclude that Phillips voluntarily and knowingly
waived his rights to remain silent and to confront adverse
witnesses. Phillips had just undergone a jury trial where he was
informed of his right to remain silent. He waived this right,
testified, and admitted his prior robbery conviction. In addition,
his attorney cross-examined an adverse witness at trial. Then, as
soon as the jury began deliberating, the trial court informed
6
Phillips that he was entitled to a second trial on the prior
conviction, explaining that he had the right to a “formal jury trial
on your prior conviction . . . you have the right to have this jury
determine the validity and correctness of your prior conviction.”
Mosby is instructive here. In Mosby, immediately after the
jury found defendant guilty, the defendant was told he had a
right to a jury trial on the prior conviction allegation. (Mosby,
supra, 33 Cal.4th at p. 364.) The defendant then admitted his
prior conviction. (Ibid.) On appeal, the defendant argued that
the trial court committed reversible error by not informing him of
his rights to remain silent and confront witnesses before he
admitted to the prior conviction. (Ibid.) The Court of Appeal
disagreed, “stating: ‘It would exalt a formula (Boykin–Tahl) over
the very standard that the formula is supposed to serve (that the
plea is intelligent and voluntary) to suggest that a defendant,
who has just finished a contested jury trial, is nonetheless
unaware that he is surrendering the protections of such a trial’
when after being advised of the right to a trial on an alleged prior
conviction the defendant waives trial and admits the prior.”
(Ibid.) The California Supreme Court explicitly agreed with this
statement. (Ibid.)
Here, just as in Mosby, the same day the jury returned a
verdict, the trial court told Phillips he had a right to a jury trial,
which he then waived. Then, moments later, Phillips said he
would stipulate to the 2017 conviction, just as in Mosby. Like
Mosby, Phillips would also have been aware of the rights he was
waiving because he had just completed a contested jury trial
where he was informed of his right to remain silent, and his
attorney had cross-examined an adverse witness on his behalf.
7
Phillips argues that his case is materially different from
Mosby. Phillips argues that unlike in Mosby, he testified at trial.
He asserts that because he was told that by testifying at trial, he
would give up his right against self-incrimination, he reasonably
would have concluded that he had already waived his right to
remain silent in the trial on the prior conviction.
We reject this contention. First, Phillips does not cite any
legal authority in support of this claim. Phillips instead
analogizes to cases concerning Miranda v. Arizona (1966)
384 U.S. 436 (i.e., cases discussing “Miranda rights”) to assert
that the advisal of his rights during the contested jury trial was
stale and a second advisal was necessary to inform him that he
again had the right to remain silent. We decline to analogize to
the very different circumstances that the Miranda doctrine is
concerned with because we find Mosby directly on point, as
described above. Mosby also rejected a similar argument that too
much time had passed between the initial advisal in the jury trial
and the admission of the prior conviction where, like here, the
defendant had “just undergone a jury trial.” (Mosby, supra,
33 Cal.4th at p. 365.)
Second, we are not persuaded that because Phillips waived
his right against self-incrimination in his jury trial, he would
have reasonably assumed he had already waived this right in his
separate trial on the prior conviction. The trial court informed
Phillips that he was entitled to a separate jury trial. It was just
as reasonable for Phillips to understand that the second jury trial
would give him the same rights as the first. Mosby specifically
instructs that a prior advisal of a right is relevant to whether the
defendant knows he has the rights again at a later date. (Mosby,
supra, 33 Cal.4th at p. 365.)
8
Finally, Phillips argues that the record fails to establish
that his prior criminal conviction came by way of a guilty plea,
unlike the defendant in Mosby. In Mosby, the court pointed to
evidence that the defendant had pleaded guilty to his prior
conviction, and thus would have been given a Boykin-Tahl
advisal at that time. (Mosby, supra, 33 Cal.4th at p. 365.) It
then reasoned that the defendant would have known of these
rights years later when he admitted to the prior conviction for
purposes of a strike enhancement. (Id. at pp. 364–365.) But this
fact alone was not dispositive. The Court in Mosby considered
this fact as one part of the “entire record” that “[shed] light on
[Mosby’s] understanding” of his rights, and went on to state all of
the relevant facts: “As the Court of Appeal here concluded: ‘[H]e
knew he did not have to admit [the prior conviction] but could
have had a jury or court trial, had just participated in a jury trial
where he had confronted witnesses and remained silent, and had
experience in pleading guilty in the past, namely, the very
conviction that he was now admitting.’ ” (Ibid.) Although we do
not know whether Phillips was similarly advised of his Boykin-
Tahl rights prior to his 2017 conviction, the absence of this
evidence does not change our conclusion, which is based on the
entire record.
In sum, we conclude that Phillips’s waiver of his rights,
when he stipulated to his prior conviction, was knowing and
voluntary because he had just finished a jury trial where he was
advised of his right to remain silent, and his attorney had cross-
examined an adverse witness on his behalf.
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II. Phillips Waived His Claim That the Trial Court
Failed to Advise Him of the Consequences of His
Admission.
In addition to the Boykin–Tahl advisal discussed above, a
court must inform a defendant of “those penalties and other
sanctions imposed as a consequence of a finding of the truth of
the allegation” before the defendant admits a prior conviction.
(In re Yurko (1974) 10 Cal.3d 857, 860.) This is “ ‘a judicially
declared rule of criminal procedure’ that an accused, before
admitting a prior conviction allegation, must be advised of the
precise increase in the prison term that might be imposed, the
effect on parole eligibility, and the possibility of being adjudged a
habitual criminal. ([In re Yurko] at p. 864.)” (People v. Cross
(2015) 61 Cal.4th 164, 170–171.) Because “ ‘advisement as to the
consequences of a plea is not constitutionally mandated,’ ” “ ‘the
error is waived absent a timely objection.’ ” (People v. Villalobos
(2012) 54 Cal.4th 177, 182 (Villalobos).) Failure to object “at or
before sentencing” waives this “advisement error [and] does not
entitle defendant to a remedy.” (Ibid., citing People v. Walker
(1991) 54 Cal.3d 1013, 1022 (Walker) [overruled on other grounds
in Villalobos, at p. 183].)
In Walker, the trial court failed to inform the defendant of a
fine that would be imposed if he pleaded guilty. The record
established that the defendant was represented by counsel at the
time of the plea, and that counsel was familiar with the probation
report that recommended the imposed fine. The California
Supreme Court reasoned that it therefore would have been a
“simple matter” for counsel to have brought a timely objection to
the trial court’s failure to advise of the fine. (Walker, supra,10
54 Cal.3d at p. 1023.) Because counsel failed to do so, the claim
was waived. (Ibid.)
Here, Phillips was also represented by counsel, and the fact
that the prior conviction would double his sentence on counts 2
and 3 was written in the information, of which counsel was
presumably aware. There was also a discussion in the record,
prior to Phillips’s admission, of a possible plea to the “low term
doubled,” and the court stated it was doubling the sentences
under the three strikes law at the sentencing hearing. Yet,
counsel failed to object or otherwise timely raise this claim at or
before the sentencing hearing. Phillips’s claim is therefore
waived.
Additionally, for Phillips to successfully challenge the trial
court’s failure to advise him of the specific consequences of his
stipulation, he must establish prejudice. (Walker, supra,54 Cal.3d at pp. 1022–1023; In re Yurko, supra, 10 Cal.3d at
p. 864.) Phillips must demonstrate that it was reasonably
probable that if properly advised, he would not have stipulated to
the prior robbery conviction and would have instead proceeded to
trial. (See Walker, at p. 1023.) Phillips makes no argument
regarding prejudice, and he admitted to the prior conviction twice
at the jury trial. We are not convinced he would have declined to
do so a third time if properly advised.
Phillips’s claim that he was not advised of the consequences
of his stipulation to his 2017 conviction is waived by his failure to
raise it below, and, even if it were not, he has not established
prejudice.
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DISPOSITION
The judgment is affirmed.
VIRAMONTES, J.
We concur:
STRATTON, P. J.
GRIMES, J.
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