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People v. Jones

March 25, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL TROY JONES, DEFENDANT AND APPELLANT.



APPEAL from the Superior Court of San Bernardino County. Robert J. Lemkau, Judge. Affirmed. (Super. Ct. No. FSB049602).

The opinion of the court was delivered by: Ramirez P. J.

CERTIFIED FOR PUBLICATION

OPINION

Defendant and appellant Michael Troy Jones appeals his jury conviction for arson (Pen. Code, § 451, subd. (d))*fn1 because he believes the trial court made several errors in reaching his total sentence of 16 years in state prison. He contends the trial court failed to properly inform him of the direct consequences of his admission of a prior arson offense. He also argues the trial court violated section 654, the prohibition against the dual use of facts, and his federal constitutional right to a jury trial.

FACTUAL AND PROCEDURAL BACKGROUND

In a first amended information, defendant was charged with arson of property of another. (§ 451, subd. (d).) It was further alleged defendant had a prior conviction for arson (§ 451, subd. (c)) within the meaning of section 451.1, which also qualified as a prior strike (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and a prior serious felony (§ 667, subd. (a)). Before trial, defendant admitted the truth of the prior arson allegations.

Evidence presented at trial indicated defendant was seen leaning and reaching inside a stolen, abandoned truck by a passing motorist. As defendant ran from the truck, the motorist saw smoke and flames coming from inside the vehicle, so he used his cell phone to dial 911. A responding police officer searched defendant after finding him inside a nearby building and found paper and matches in his pockets. An arson expert testified the fire started in the interior driver seat of the vehicle as a result of a combustible open flame device, such as a match or lighter. Defendant testified in his own defense and denied setting the fire. During his trial testimony, defendant once again admitted he had a prior conviction for arson after setting fire to a pile of "girlie books" inside an old abandoned gas station.

The trial court sentenced defendant to a total of 16 years in state prison. To reach the total term of 16 years, the trial court imposed the upper term of three years for the new arson conviction and doubled it to six years because of the prior strike. The court then added a consecutive term of five years under section 451, subdivision (a), based on defendant‟s prior arson conviction, and another five-year consecutive term because the prior arson conviction qualified as a serious felony.

DISCUSSION

Defendant's Admission of the Prior Conviction Allegations

Defendant contends his sentence should be vacated because the trial court failed to advise him of the direct consequences of admitting his prior arson conviction. Defendant claims these consequences included an increase in the sentence under section 451, subdivision (c), doubling of the base term of his offense under the "Three Strikes" law, and the addition of a five-year term because the prior arson conviction qualified as a serious felony.

"A defendant who admits a prior criminal conviction must first be advised of the increased sentence that might be imposed. [Citations.] However, unlike the admonition required for a waiver of constitutional rights, advisement of the penal consequences of admitting a prior conviction is not constitutionally mandated. Rather, it is a judicially declared rule of criminal procedure. [Citations.] Consequently, when the only error is a failure to advise of the penal consequences, the error is waived if not raised at or before sentencing." (People v. Wrice (1995) 38 Cal.App.4th 767, 770-771.)

Here, the transcript of the hearing held October 16, 2007, when defendant admitted his prior arson conviction, confirms the court did not specifically advise defendant of the direct consequences of his admission.*fn2 The record also indicates defendant‟s counsel did not object on this ground at or before the time of sentencing. Accordingly, ...


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