The People v. Johnson CA6 ( 2013 )

Filed 9/11/13 P. v. Johnson CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H038575
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1223015)
v.
WILLIAM LOUIS JOHNSON,
Defendant and Appellant.
Following approximately a day and a half of testimony, a jury found William
Johnson (appellant) guilty of one count of unlawfully taking or driving a vehicle (Veh.
Code, § 10851, subd. (a), count one), and one count of possession of burglary tools (Pen.
Code, § 466, count two). Following the reading of the verdict, appellant admitted that
prior to the commission of the offenses in this case he had been convicted of a felony, for
which he had served a prior prison term within the meaning of Penal Code section 667.5,
subdivision (b).
On July 12, 2012, the court sentenced appellant to a blended sentence of three
years in prison to be served in the county jail followed by two years of mandatory
supervision pursuant to Penal Code section 1170, subdivision (h) on count one,1 and a 60-
1
The court sentenced appellant to the aggravated term —four years on count one—
plus a consecutive one year term for the prison prior.
day concurrent jail sentence on count two. The court imposed various fines and fees and
awarded appellant 385 days of presentence custody credits.
Appellant filed a timely notice of appeal.
On appeal, appellant contends that the trial court abused its discretion in admitting
evidence of his prior convictions for vehicle theft. Further, appellant argues that because
the trial court failed to advise him of his federal and state constitutional rights before he
admitted a prior prison term allegation, we must reverse and remand for further
proceedings. Respondent concedes this issue. We agree that the case must be remanded
for further proceedings.
Testimony Adduced at Trial
Jesus Flores
On January 1, 2012, Jesus Flores parked his blue 1990 Toyota Tercel in the area of
16th and Bryant Streets in San Francisco. He was away from his car for approximately
20 to 30 minutes. When he returned to where he had parked the car, sometime between
5:00 and 5:45 p.m., he found that it was missing; Mr. Flores had his keys with him. He
did not know appellant and had not given anyone permission to drive his car.
Officer Higgins
At around 1:30 a.m. on January 2, 2012, Santa Clara Police Officer Josh Higgins
drove into a parking lot on El Camino Real in Santa Clara. Officer Higgins saw appellant
sitting in the driver's seat of a blue Toyota Tercel; appellant appeared to be rummaging
around the seats. Officer Higgins was in a marked police SUV. After appellant looked
up and toward Officer Higgins, appellant got out of the Tercel very quickly, tossed a ring
of keys to the ground and began walking away. Appellant's head was down; to the
officer he appeared nervous.
Officer Higgins drove slowly toward appellant, stopped his police SUV, and as he
was getting out of it asked appellant what he was doing. Appellant told him that he was
getting "stuff" out of his car. Appellant's hands were trembling and he would not make
2
eye contact with the officer. Officer Higgins asked appellant if it was his car or was he
breaking into it. Appellant replied that he had clothing in the car. When Officer Higgins
asked appellant why he had dropped the keys, appellant did not say anything.
Officer Higgins confirmed with dispatch that the Tercel had been stolen; he
arrested appellant. Officer Higgins searched appellant and found two metal hook-shaped
objects in the pocket of appellant's pants, which the officer recognized as lock-picking
devices. He found a similar object and two small screwdrivers in appellant's backpack.
Officer Higgins admitted that he did not feel the hood of the car to see whether it warm,
which would have indicated that the engine had been running recently.
Officer Higgins was able to locate the keys that appellant had thrown away on the
ground by the driver's side door. He described the keys as "shaved"; they bore marks
showing that recently they had been filed to smooth out the ridges. According to Officer
Higgins, shaved keys allow the keys for one car's ignition to be used to start a different
car.
Officer Higgins admitted that the driver's seat in the Tercel was pushed too far
back for appellant to drive, but it was in a reclined position in which appellant could have
been sleeping.
While transporting appellant in the back of his patrol car to the county jail for
booking, Officer Higgins noticed that appellant was slumped over with his eyes closed.
The officer asked appellant if he was "okay" and appellant stated that he was not. Officer
Higgins asked appellant what was wrong and appellant stated that he had a skin infection
that was covering his body. Officer Higgins told appellant that he would be able to get
medical treatment at the jail. Appellant responded that he "made this happen." When
Officer Higgins asked appellant what he meant, appellant said that he " 'was driving that
car from San Francisco trying to get a cop to stop [him].' " Appellant said that he drove
the car through some residential streets in San Mateo while honking the horn in the hope
that someone would call the police. Appellant told Officer Higgins that he would not last
3
much longer on the streets because he needed food and medical care. He said that he
drove from San Francisco to San Jose because he felt that if he was arrested in San
Francisco he would not be in jail long enough to get his needs met.
Officer Ellis
Officer Ellis responded to the scene after Officer Higgins took appellant into
custody. Using one of the shaved keys that appellant had thrown away, Officer Ellis was
able to start the Tercel.
Rita Johnson
Appellant's ex-wife, Rita Johnson, testified that appellant arrived on a bicycle at
her home in San Jose on December 24, 2011. Appellant left on the bicycle on January 1,
2012, between approximately 4:00 to 4:30 p.m. to catch the train back to San Francisco.
Mrs. Johnson believed the train ride to San Francisco took between one and two hours.
Discussion
Introduction into Evidence of Appellant's Prior Conviction for Vehicle Theft
Background
In limine, among other things, the prosecution sought to introduce evidence of
appellant's three prior convictions for violating Vehicle Code section 10851 (theft or
unauthorized use of a vehicle), which occurred in 1989, 2006 and 2011. The court ruled
that a 1989 conviction was too remote to be admissible. As to the remaining two
convictions, over defense counsel's objection, and after conducting an Evidence Code
section 352 analysis, the court ruled that they were admissible on the issue of appellant's
intent as to both the vehicle taking charge and the possession of burglary tools charge.
Near the end of the prosecution's case, the prosecutor informed the court that the
parties had agreed to a stipulation. The court informed the jury that a stipulation was an
agreement by the attorneys regarding the facts. Thereafter, the prosecutor read the
following: "The parties stipulate that on July 6th, 2006, William Louis Johnson was
convicted of unlawful taking or driving of a vehicle, in violation of California Vehicle
4
Code Section 10851, in San Mateo County case number SC061503A. [¶] It is further
stipulated that on October 27, 2011, William Louis Johnson was convicted of unlawful
taking or driving of a vehicle, in violation of California Vehicle Code Section 10851, in
San Francisco County case No. 11023468."
After confirming that defense counsel so stipulated, the court told the jury the
following. "Now, Ladies and Gentlemen, the evidence that you just heard of the prior
convictions is offered for a limited purpose only. You may, but are not required to,
consider this evidence to show, if it does, that the defendant acted with a specific intent
required in one or both of the charged crimes in this case. You cannot consider this
evidence as indicating the defendant had a propensity or predisposition to unlawfully take
or drive a vehicle or possess burglary tools." The court asked the jurors if any one of
them needed the stipulation or the instruction reread. It appears that one juror so
indicated. Accordingly, the court reread the limiting instruction. A copy of the
stipulation was given to the jury during deliberations after the jury posed a question to the
court that read "We would like the specific definition of the 'stipulation.' " However, it
does not appear that the court gave the jurors a copy of the accompanying limiting
instruction, but told them that they could consider the stipulation "only for the limited
purpose explained at the time of the stipulation."
Appellant contends that the trial court abused its discretion in permitting the
introduction of evidence of his prior convictions because intent was not a contested
issue.2
Under Evidence Code section 1101, "evidence of a person's character or a trait of
his or her character (whether in the form of an opinion, evidence of reputation, or
evidence of specific instances of his or her conduct) is inadmissible when offered to
2
At trial, appellant conceded that he was guilty of count two—possession of
burglary tools. Accordingly, this issue is limited to only the unlawfully driving or taking
a vehicle charge.
5
prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).)
"Evidence that a defendant committed crimes other than those for which the defendant is
then being tried is barred by Evidence Code section 1101 . . . if it is offered to prove the
defendant's criminal disposition, but not if it is offered to prove a material disputed issue
such as motive or intent. [Citation.]" (People v. Hayes (1990) 52 Cal.3d 577, 616-617.)
However, to be admissible, "such evidence 'must not contravene other policies limiting
admission, such as those contained in Evidence Code section 352. [Citations.]'
[Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) Since evidence of uncharged
offenses is highly prejudicial, it must have substantial probative value, and the trial court
must carefully analyze the evidence under Evidence Code section 352 to determine if its
probative value outweighs its inherent prejudicial effects. (Ibid.)
At the outset, we note that when the trial court overrules a defendant's objections
to prior crimes evidence, and the defendant enters into a stipulation regarding the scope
of that evidence "to control the form of the evidence, not to concede admissibility," the
issues raised by the defendant's objections are preserved for appeal. (People v.
Bacigalupo (1991) 1 Cal.4th 103, 138–139, judg. vacated and cause remanded (1992)
506 U.S. 802, reaffd. (1993) 6 Cal.4th 457.) Accordingly, we turn to whether the court
erred in ruling the prior convictions evidence was admissible.
" 'On appeal, the trial court's determination of this issue, being essentially a
determination of relevance, is reviewed for abuse of discretion' [Citation.]" (People v.
Whisenhunt (2008) 44 Cal.4th 174, 203.) Further, the evidence must be viewed in the
light most favorable to the verdict. (People v. Catlin (2001) 26 Cal.4th 81, 120.)
"Evidence that a defendant committed crimes other than those for which he is on
trial is admissible when it is logically, naturally, and by reasonable inference relevant to
prove some fact at issue, such as motive, intent, preparation or identity. [Citations.]"
(People v. Daniels (1991) 52 Cal.3d 815, 856.)
6
"It is well settled that various degrees of similarity are required to establish
identity, common scheme or plan and intent. 'When the prosecution seeks to prove the
defendant's identity as the perpetrator of the charged offense with evidence he had
committed uncharged offenses, the admissibility of evidence of the uncharged offenses
turns on proof that the charged and uncharged offenses share sufficient distinctive
common features to raise an inference of identity. A lesser degree of similarity is
required to establish the existence of a common plan or scheme and still less similarity is
required to establish intent. [Citations.] In order to be admissible to prove intent, the
uncharged misconduct must be sufficiently similar to the charged offense to support the
inference that the defendant probably acted with the same intent in each instance.
[Citation.]' [Citations.]" (People v. Hendrix (2013) 214 Cal.App.4th 216, 240-241.)
"To establish a defendant's guilt of violating Vehicle Code section 10851,
subdivision (a), the prosecution is required to prove that the defendant drove or took a
vehicle belonging to another person, without the owner's consent, and that the defendant
had the specific intent to permanently or temporarily deprive the owner of title or
possession. [Citation.]" (People v. O'Dell (2007) 153 Cal.App.4th 1569, 1574, italics
added.)
Appellant argues that the primary cause of disagreement in this case was whether
he drove or moved the Tercel; his intent was never in dispute and therefore his intent was
not a material fact in issue in this case.
Appellant forgets that his "not guilty plea put in issue all of the elements of the
offense[]. [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1243.) This would have
been true even if he had conceded, or merely not disputed, the issue of his intent. (People
v. Jones (2010) 51 Cal.4th 346, 372 (Jones).) " '[T]he prosecution's burden to prove
every element of the crime is not relieved by a defendant's tactical decision not to contest
an essential element of the offense.' (Estelle v. McGuire (1991) 502 U.S. 62, 69.)"
(Jones, supra, 51 Cal.4th at p. 372.)
7
As appellant notes, there was no dispute that the car was stolen, and the
prosecution did not contend that he had stolen the Tercel from its last known location in
San Francisco. However, appellant's intent in driving the Tercel was an issue, even if not
" 'significantly' in issue." (People v. Roldan (2005) 35 Cal.4th 646, 706-707 (Roldan),
overruled on a different point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
As the Roldan court explained, " ' "We have long recognized 'that if a person acts
similarly in similar situations, he probably harbors the same intent in each instance'
[citations], and that such prior conduct may be relevant circumstantial evidence of the
actor's most recent intent. The inference to be drawn is not that the actor is disposed to
commit such acts; instead, the inference to be drawn is that, in light of the first event, the
actor, at the time of the second event, must have had the intent attributed to him by the
prosecution." ' [Citation.]" (Roldan, supra, 35 Cal.4th at p. 706.)
Lacking direct evidence of appellant's mental state, evidence of the two prior
Vehicle Code section 10851 convictions was relevant to demonstrate appellant's intent in
driving the Tercel. That is, the two incidents were sufficiently similar to support the
inference appellant probably harbored the same intent in each instance. (People v.
Ewoldt, supra, 7 Cal.4th at p. 402; People v. Lindberg (2008) 45 Cal.4th 1, 23; People v.
Kelly (2007) 42 Cal.4th 763, 783.) At least one of the prior incidents involved the use of
shaved keys. Although we do not know the details of the other, given that the least
amount of similarity is required to show intent, just the fact that appellant had in the past
unlawfully taken or driven a vehicle, was sufficiently similar to the Tercel incident to
warrant introduction on the issue of intent. (People v. Ewoldt, supra, 7 Cal.4th at p. 402.)
Appellant argues that although the prosecutor was careful to point out to the jurors
that they could use the prior convictions only for the purpose of showing his intent in
driving the Tercel, the prosecutor went on to state, "another important factor is the fact
. . . that defendant has been convicted of this crime in the past, that in the past, the
defendant has possessed somebody else's car, has driven it intending to deprive them [of]
8
ownership of that car." Appellant argues that the prosecution's reference to him having
"driven" the cars associated with his prior convictions inappropriately gave the jury
license to use the priors to determine that he drove the Tercel in this case. We are not
persuaded that the jury would have done any such thing. Our review of the record of the
prosecutor's argument shows that the prosecutor used the prior crimes evidence solely to
establish appellant's intent. Furthermore, the jury was instructed twice by the court that
they could consider the prior crimes evidence only to show that appellant "acted with the
specific intent required for one or both of the charged crimes" and not as evidence
indicating that appellant "had a propensity or predisposition to unlawfully take or drive a
vehicle," which is what they would have had to have done to use the evidence as
appellant suggests. Moreover, the court instructed the jury, "[d]uring trial, certain
evidence was admitted for a limited purpose. You may consider that evidence only for
that purpose and for no other." We presume the jury understood and followed the court's
instructions. (People v. Lindberg, supra, 45 Cal.4th at p. 26.)
Finally, assuming for the sake of argument that the trial court abused its discretion
in admitting evidence of appellant's prior crimes, reversal is not required. Even if the
other crimes evidence had been excluded, appellant was seated in a stolen car; he
possessed tools used to break into cars and a shaved key that was able to start the Tercel.
Appellant's statements to Officer Higgins that he "made this happen" and that he " 'was
driving that car from San Francisco trying to get a cop to stop [him]' " were particularly
damaging to appellant. In short, there was compelling evidence that appellant unlawfully
drove or took the Tercel. Accordingly, a result more favorable to appellant was not
reasonably probable absent admission of the prior crimes evidence. (People v. Welch
(1999) 20 Cal.4th 701, 750; People v. Watson (1956) 46 Cal.2d 818, 836.) For the same
reasons, any error was harmless beyond a reasonable doubt. (See Chapman v. California
(1967) 386 U.S. 18, 24; People v. Cole (2004) 33 Cal.4th 1158, 1195.)
9
Appellant asserts that prejudice was demonstrated because when the court reread
the stipulation to the jury during deliberations, but did not reread its limiting instruction,
the court placed the admission of the priors squarely in front of the jury with a vague
instruction to remember its previous limiting instruction; and since the jury returned a
guilty verdict 15 minutes later, without a thorough explanation of the use of the priors,
there is a reasonable probability that the jury convicted based on the priors. Again, we
are not persuaded. The trial court reminded the jurors of the limited use of the evidence
of the priors and we have no reason to presume that the jurors were incapable of
remembering that limiting instruction and following the instruction they had been given
twice by the court. The fact that on the jury request form for the "specific definition of
the 'stipulation' " the words "Instructions on how" were crossed out indicates to this court
that the jurors were quite aware of the instruction on how to use the evidence.
Overwhelming evidence of guilt is a more likely explanation for the jury returning a
guilty verdict after being reread the stipulation regarding appellant's prior convictions.3
The assertion by appellant that the jury "might have been confused about the proper
application of the prior convictions," might not have remembered the limiting instruction
details or may have disagreed amongst themselves about its directives is pure
speculation. "It is ordinarily presumed that jurors are intelligent persons capable of
understanding and correlating all jury instructions that are given. [Citations.]" (People v.
Phillips (1985) 41 Cal.3d 29, 58.) Appellant's showing here has left that presumption un-
rebutted.
3
An equally plausible explanation is the jury was convinced that appellant took or
drove the car, but was unsure if appellant had the specific intent to permanently or
temporarily deprive the owner of possession of the Tercel. Any doubts about appellant's
intent would have been dispelled once the stipulation on the other crimes evidence was
read again and the jury applied the instruction on how to use this evidence.
10
Appellant's Prior Prison Term Admission
Appellant contends that we must reverse this case and remand to the trial court
because the court failed to advise him of his federal and state constitutional rights, and
get his waiver of those rights, in connection with his admission that he had a prior
conviction for which he had served a prior prison term. Respondent concedes this issue
and points out that the record is silent as to whether appellant's admission was voluntary
and knowing.
Background
Immediately after setting the date for a sentencing hearing in this case, and
informing appellant that the probation department would contact him, the court paused to
state the following. "Actually, you know what? We have to do the -- we have to either
do a court trial on the prison prior, unless he wants to admit it." Defense counsel asked
for "one moment" and conferred with appellant. Thereafter, defense counsel stated,
"Your Honor, he's indicated a willingness to admit the prison prior at this time." The
court addressed appellant directly and stated, "All right. Mr. Johnson, it is alleged in the
information within the meaning of Penal Code Section 667.5(b) that prior to the
commission of the offenses charged in the Information, you were convicted of a felony,
vehicle theft in San Mateo docket SC061503A, and for that offense, you served a prison
term, and that since serving that term did not remain free of both prison custody and a
felony conviction for five years. [¶] Do you admit or deny the allegation?" Appellant
replied, "Admit."
Before a trial court accepts a defendant's admission of a prior conviction
allegation, the court must identify for the defendant the three rights that the defendant is
waiving (i.e., to a jury trial, to remain silent, and to confront witnesses), and must obtain
waivers of these rights from the defendant. (People v. Mosby (2004) 33 Cal.4th 353,
359-360 (Mosby).) If an express waiver of the rights is not secured from the defendant,
11
reversal is required unless the record as a whole shows the admission was voluntary and
intelligent under the totality of circumstances. (Id. at pp. 360–361.)4 The question is
whether the defendant's admission was intelligent and voluntary "because it was given
with an understanding of the rights waived." (Id. at p. 361; see also People v. Hinton
(2006) 37 Cal.4th 839, 875, fn. 12.)
4
Before People v. Howard (1992) 1 Cal.4th 1132 (Howard), California law viewed
the failure to advise a defendant of his constitutional rights or secure his waiver of them
prior to accepting a guilty plea or admission of a prior conviction—known as Boykin-
Tahl (plea) or Yurko (prior conviction admission) error—as automatically reversible,
regardless of prejudice. In Howard, however, our Supreme Court determined that "Yurko
error involving Boykin/Tahl admonitions should be reviewed under the test used to
determine the validity of guilty pleas under the federal Constitution. Under that test, a
plea is valid if the record affirmatively shows that it is voluntary and intelligent under the
totality of the circumstances." (Howard, supra, 1 Cal.4th at p. 1175.) Thus, although the
trial court in Howard did not admonish the defendant concerning his privilege against
self-incrimination, the Supreme Court concluded that the defendant's admission of the
prior conviction was voluntary and intelligent from a review of the totality of the
circumstances. (Id. at p. 1180.) Subsequent to Howard, however, some courts of appeal
questioned the wisdom of applying a harmless error test in this context and declined to
review the record in the manner directed by the Howard court. (People v. Howard
(1994) 25 Cal.App.4th 1660; People v. Garcia (1996) 45 Cal.App.4th 1242; People v.
Carroll (1996) 47 Cal.App.4th 892; People v. Van Buren (2001) 93 Cal.App.4th 875.) In
Mosby, supra, 33 Cal.4th 353, our Supreme Court reiterated its commitment to
application of a harmless error analysis of Boykin-Tahl-Yurko error and elaborated that
"[i]n replacing the old rule, the focus was shifted from whether the defendant received
express rights advisements, and expressly waived them, to whether the defendant's
admission was intelligent and voluntary because it was given with an understanding of
the rights waived. After our Howard decision, an appellate court must go beyond the
courtroom colloquy to assess a claim of Yurko error. [Citation.] Now, if the transcript
does not reveal complete advisements and waivers, the reviewing court must examine the
record of 'the entire proceeding' to assess whether the defendant's admission of the prior
conviction was intelligent and voluntary in light of the totality of circumstances."
(Mosby, at p. 361.) However, with respect to "[t]ruly silent-record cases . . . that show no
express advisement and waiver of the Boykin-Tahl rights before a defendant's admission
of a prior conviction," the court stated: "In such cases, in which the defendant was not
advised of the right to have a trial on an alleged prior conviction, we cannot infer that in
admitting the prior the defendant has knowingly and intelligently waived that right as
well as the associated rights to silence and confrontation of witnesses." (Id. at pp. 361-
362.)
12
In Mosby, the court found that a defendant's admission of his priors was intelligent
and voluntary under the totality of circumstances, notwithstanding the trial court's failure
to advise and obtain a waiver of the rights to silence and confrontation of witnesses.
(Mosby, supra, 33 Cal.4th at pp. 356, 360, 364–365.) The lynchpin of Mosby's
conclusion was that the defendant was expressly advised about, and had expressly
waived, his right to a jury or court trial on the priors. (Id. at p. 364.) The court in Mosby
reasoned that it was apparent that the defendant knew about and intended to waive the
two rights attendant to trial (i.e., silence and witness confrontation) because he had just
participated in a trial on the substantive offenses where those very same rights were
exercised. (Id. at pp. 364–365.) Mosby distinguished cases where there was absolutely
no advisement and waiver as to the jury or court trial right, or where the trial court's
reference to the trial right was fleeting and without response from the defendant so that
the circumstances in effect equated to a complete lack of advisement and waiver. (Id. at
pp. 361–362.)
In the case before the Mosby court, immediately after the jury returned a guilty
verdict, the defendant was advised that he had a right to a jury trial on the prior
conviction. He waived that right and admitted the truth of the allegation. The court held
that the totality of the circumstances supported a finding that "defendant voluntarily and
intelligently admitted his prior conviction despite being advised of and having waived
only his right to a jury trial." (Mosby, supra, 33 Cal.4th at p. 365.) Important
considerations in Mosby included the fact that defendant "had just undergone a jury trial"
at which he did not testify but his codefendant did, indicating that he understood he had a
right to remain silent at trial, thereby "forcing the prosecution to prove he had sold
cocaine." (Id. at p. 364.) In addition, at the trial that had just concluded, his attorney had
confronted witnesses, indicating that defendant "would have understood that at a trial he
had the right to confrontation." (Ibid.) Finally, the court also considered defendant's
prior experience with the criminal justice system "relevant to a recidivist's ' "knowledge
13
and sophistication regarding his [legal] rights." ' " (Id. at p. 365.) In a footnote, the
Mosby court disapproved People v. Van Buren, supra, 93 Cal.App.4th 875, People v.
Carroll, supra 47 Cal.App.4th 892, People v. Garcia, supra, 45 Cal.App.4th 1242,
People v. Torres (1996) 43 Cal.App.4th 1073, and People v. Howard, supra, 25
Cal.App.4th 1660, to the extent they were inconsistent with its holding in Mosby.
(Mosby, supra, 33 Cal.4th at p. 365, fn. 3.) All were cases that the Mosby court had
earlier in the opinion characterized as showing incomplete advisements and waivers
rather than being "[t]ruly silent-record cases." (Id. at p. 361.)
Here the trial court's fleeting statement, "we have to either do a court trial on the
prison prior, unless he wants to admit it" in no way advised appellant that he had a right
to a jury trial on the prior prison term allegation, to confront witnesses against him and
his privilege against self-incrimination.5 In this case a very experienced trial court made
no meaningful effort to properly inform appellant of his rights before appellant admitted
the prior prison term allegation. As the court in People v. Howard, supra, 1 Cal.4th at
pages 1178-1179 explained, "explicit admonitions and waivers still serve the purpose that
originally led [the Supreme Court] to require them," and "are the only realistic means of
assuring that the judge leaves a record adequate for review."
In this case, we are compelled to vacate the sentence and remand the case for yet
another hearing.
5
Even though appellant had just finished a jury trial during which his attorney had
confronted the witnesses against him, and he had exercised his right to remain silent, a
passing remark about a "court trial" in no way informed appellant that he had a right to a
jury trial on the prior prison term allegation. Further, although it appears from the
probation officer's report that appellant has an extensive criminal history, it is impossible
to tell whether any of appellant's prior convictions stemmed from pleas or were the result
of jury trials. Nor are we able to tell whether or not appellant has ever admitted a prior
prison term allegation in the past.
14
Disposition
The judgment is reversed. The matter is remanded to the trial court for a new
adjudication of the prior prison term allegation under Penal Code section 667.5,
subdivision (b), either by admission or trial, and for resentencing thereafter.
________________________________
ELIA, J.
WE CONCUR:
______________________________
RUSHING, P. J.
______________________________
PREMO, J.
15