(Super. Ct. No. MF008672A) APPEAL from a judgment of the Superior Court of Kern County. Cory J. Woodward, Judge.
The opinion of the court was delivered by: Levy, Acting P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellant Albert Ralph Guzman was convicted of possession of a sharp
instrument while confined in a state prison. (Pen. Code,*fn1
§ 4502, subd. (a).) While testifying in front of the
jury, appellant admitted to three prior felony convictions -- robbery,
auto theft, and possession of methamphetamine for sale -- and a gang
enhancement as to the robbery conviction. After the jury rendered its
verdict and was excused, appellant again expressly admitted the prior
robbery conviction and also admitted serving a prior prison term for a
felony. On that basis, the court found true both a prior strike
conviction within the meaning of the "three strikes" law (§§ 667,
subds. (a)-(j) & 1170.12, subds. (a)-(e)), and conviction for a felony
within five years of serving a prior prison term for a felony. (§
667.5, subd. (b).) The trial court sentenced appellant to nine years,
consisting of the four-year upper term, doubled for the strike prior,
plus a one-year enhancement for the prior prison term, to be served
consecutive to his robbery sentence for a total fixed term of 25
On appeal, appellant makes three arguments: (1) the trial court abused its discretion and committed prejudicial error when it permitted appellant to admit the prior gang enhancement charge; (2) section 4502 is unconstitutionally vague; and (3) the trial court's failure to advise appellant of his constitutional rights in connection with his admission of his priors requires remand for a new trial on the truth of his prior convictions. Respondent concedes appellant was not properly advised of his constitutional rights before admitting his priors. We affirm the conviction. We reverse the trial court's findings on the priors and remand to the trial court for proper proceedings on the truth of the prior conviction and prior prison term served, consistent with this opinion.
FACTUAL AND PROCEDURAL HISTORY
On February 3, 2009, appellant was transferred to California Correctional Institution (CCI) in Tehachapi from a San Bernardino County jail. As part of inmate reception procedures, inmates must pass through a walk-through metal detector wearing only their underwear. When appellant passed through, he set off the metal detector alarms. Supervising Sergeant William Kelly asked appellant if he had any contraband. Appellant admitted he had razor blades, and was escorted to the restroom, where he removed the finger of a glove, tied off at the end, from his rectum. Inside the glove finger were a number of items, all wrapped in toilet paper and cellophane: 11 single razor blades, apparently removed from disposable shavers; one razor blade still in the plastic casing of a shaver head with the handle broken off; a piece of paper with addresses and telephone numbers written on it; and magazine clippings.
Appellant was charged with one count of possession of a sharp instrument while confined in a penal institution, with two special allegations regarding appellant's prior strike conviction and his prior prison term served.
At the pretrial hearing, with appellant present, the trial court confirmed with defense counsel that appellant was going to admit his prior strike allegation and prior prison term when he testified at trial and the jury was not going to try the priors. The trial court also ruled on the use of appellant's prior felony convictions for purposes of impeachment, permitting the prosecution to use three of appellant's prior convictions, and excluding one of his two 2005 convictions, as it was too similar to the other 2005 conviction. The court noted the allowed prior convictions were for crimes of moral turpitude and would impact appellant's credibility. The court also noted the convictions were recent or close in time to releases from prison. Finally, the court noted the current charge was dissimilar to the priors and appellant's decision to testify would suffer no impact from allowing the prosecution to present evidence of his prior convictions. No mention was made of a gang enhancement to one of the prior convictions at that time.
At trial, Officer Richard Hetzel and Lieutenant Jeffory Gentry testified that certain prisoners were allowed to possess disposable shavers, depending on their classification level within the prison. Appellant, however, being slated for "Administrative Segregation," was not allowed to have any razors in his possession. The correctional officers also testified as to the potential use of exposed razors as weapons or slashing instruments. No inmate is permitted to possess ...