IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
November 7, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
KEVIN ALEXANDER ROSENBLUM, DEFENDANT AND APPELLANT.
(Super. Ct. No. MF032426A)
The opinion of the court was delivered by: Hoch , J.
P. v. Rosenblum
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Kevin Alexander Rosenblum was convicted by jury of one count of transportation of methamphetamine, one count of possession of a dangerous weapon (sawed-off shotgun), two counts of possession of a firearm by a felon (sawed-off shotgun and handgun) and two counts of possession of ammunition by a felon (shotgun slugs and handgun ammunition). The jury also found that defendant was personally armed with a handgun during the transportation offense. After waiving a jury trial on an allegation that he was previously convicted of a strike offense, defendant admitted the allegation. The trial court sentenced defendant to an aggregate term of 10 years in state prison and imposed other orders.
On appeal, defendant asserts: (1) there is insufficient evidence to support the jury's finding that he was personally armed with a firearm during the transportation offense; (2) the trial court prejudicially erred in refusing his request to instruct the jury on simple possession as a lesser-included offense of transportation; (3) the trial court prejudicially erred in failing to provide the jury with a unanimity instruction regarding the possession of ammunition counts; (4) defendant's admission to the prior strike allegation was not intelligent and voluntary; and (5) defendant is entitled to additional presentence conduct credit under the October 1, 2011, amendment to Penal Code section 4019.*fn1
We disagree with each contention. As we explain, the jury reasonably could have inferred that the handgun, which was in the rear cargo area of defendant's Chevy Blazer as he transported methamphetamine in the vehicle, was available for use either offensively or defensively. With respect to defendant's second contention, we conclude that simple possession is not a lesser-included offense of transportation. Nor could the jury reasonably have concluded that defendant possessed the methamphetamine in the moving Blazer, but did not also transport the drug. Defendant's third contention fails because the verdict forms and the prosecutor's closing argument made clear which particular ammunition was being relied upon to support the possession of ammunition counts. We also conclude that defendant's admission to the prior strike allegation was intelligent and voluntary. Finally, defendant is not entitled to additional conduct credits under section 4019. Accordingly, we affirm the judgment.
On August 20, 2009, defendant lived on Austin Road in Manteca with his wife and children. Detective Paul Carmona with the Manteca Police Department's narcotics unit had the house under surveillance. Defendant arrived home in his Chevy Blazer at about 7:15 p.m. and then left the house in the same vehicle a short time later. Detective Carmona and several other police officers followed in unmarked police cars. Defendant drove south on Austin Road to Highway 99, drove north on Highway 99 to Highway 120, and then drove west on Highway 120 to Airport Way. At Airport Way, defendant exited the highway, drove over the overpass, and again got onto Highway 120, this time driving east. At Main Street, defendant again exited the highway and drove north until he was pulled over at Moffat Boulevard. During the entire trip, defendant was "changing lanes" and "constantly looking around, looking into his rear view mirror." According to Detective Carmona, defendant's route and manner of driving was "indicative of counter-surveillance" employed by drug dealers to make sure that law enforcement officers or other drug dealers are not following them.
Officers searched defendant when he was pulled over and found two small Ziploc baggies containing methamphetamine in the fold of his beanie cap. Officers also searched the Blazer's passenger compartment and found three such baggies in a pack of Newport cigarettes that was in the center console. The baggies were about a square inch in size and were decorated with a "space alien face." After defendant was arrested, police impounded the Blazer and then searched defendant's house. On the dresser in the master bedroom, officers found more methamphetamine, a digital scale, several Ziploc baggies that were identical to the ones found in the Blazer, another baggie containing marijuana, and $358 in cash. In the garage, police found a sawed-off shotgun, five shotgun slugs in a Nextel box next to the shotgun, and a safe containing some "miscellaneous ammunition," including a partial box of either .32-caliber or .22-caliber ammunition and a single .25-caliber round.
After searching defendant's house, police did a more thorough search of the Blazer. In the rear cargo area, in the jack compartment, officers found a .25-caliber handgun and a clip containing six .25-caliber rounds. The jack compartment was covered, but was easily opened by depressing two tabs. Once the cover was removed, the gun and clip could be retrieved simply by reaching into the compartment. Defendant could not reach the weapon from the driver's seat. However, it would take a matter of seconds for defendant to either climb into the back seat or walk around the Blazer and open the back. From either position, defendant could reach into the cargo area, open the jack compartment, and retrieve the gun and clip.
Sufficiency of the Evidence
Defendant contends there is insufficient evidence to support the jury's finding that he was personally armed with a firearm during the transportation offense. We disagree.
" 'To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1077; Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].) The standard of review is the same in cases in which the prosecution relies on circumstantial evidence. (People v. Snow (2003) 30 Cal.4th 43, 66.) " 'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt.' " (People v. Stanley (1995) 10 Cal.4th 764, 792-793.) Accordingly, we must affirm the judgment if the circumstances reasonably justify the jury's finding of guilt regardless of whether we believe the circumstances might also reasonably be reconciled with a contrary finding. (People v. Thomas (1992) 2 Cal.4th 489, 514; People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Section 12022, subdivision (c), provides for an enhancement of three, four, or five years for "any person who is personally armed with a firearm" in the commission of certain enumerated offenses, including transportation of methamphetamine. This provision is "part of the Dangerous Weapons Control Law, which regulates a wide range of unlawful activities involving firearms and other deadly weapons. (§ 12000 et seq.) Unlike section 12022.5, which imposes enhanced penalties for personal use of a firearm in the commission of a felony, section 12022 'does not require that a defendant utilize a firearm or even carry one on the body.' [Citations.] A defendant is armed under section 12022 as long as the gun is 'available for use, either offensively or defensively.' [Citation.]" (People v. Pitto (2008) 43 Cal.4th 228, 236 (Pitto).)
In People v. Bland (1995) 10 Cal.4th 991, 997 (Bland), the defendant was convicted of possession of cocaine base for the purpose of sale and was found to have been armed during the commission of the offense within the meaning of section 12022. The cocaine base was found in the defendant's bedroom closet; under the bed was a cache of unloaded firearms. (Id. at pp. 995-996.) The Court of Appeal found insufficient evidence to support the arming enhancement based on the fact that the defendant was outside the house when police found the drugs and firearms in his bedroom. (Id. at p. 996.)
Our Supreme Court disagreed and reinstated the enhancement, explaining: "Possessory drug offenses are continuing crimes that extend throughout a defendant's assertion of dominion and control over the drugs, even when the drugs are not in the defendant's immediate physical presence. Therefore, when the prosecution has proved a charge of felony drug possession, and the evidence at trial shows that a firearm was found in close proximity to the illegal drugs in a place frequented by the defendant, a jury may reasonably infer: (1) that the defendant knew of the firearm's presence; (2) that its presence together with the drugs was not accidental or coincidental; and (3) that, at some point during the period of illegal drug possession, the defendant had the firearm close at hand and thus available for immediate use to aid in the drug offense. These reasonable inferences, if not refuted by defense evidence, are sufficient to warrant a determination that the defendant was 'armed with a firearm in the commission' of a felony within the meaning of section 12022." (Bland, supra, 10 Cal.4th at p. 995.)
The Bland court also explained: "Of course, contemporaneous possession of illegal drugs and a firearm will satisfy the statutory requirement of being 'armed with a firearm in the commission' of felony drug possession only if the evidence shows a nexus or link between the firearm and the drugs. The federal courts, in interpreting the federal counterpart to California's weapons enhancement law (18 U.S.C. § 924 (c)(1)), have described this link as a 'facilitative nexus' between the drugs and the gun. [Citation.] Under federal law, which imposes specified prison terms for using or carrying a firearm ' "during and in relation to" ' a crime of drug trafficking, 'the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence.' [Citation.] So too in California." (Bland, supra, 10 Cal.4th at p. 1002.) However, while "section 12022 implicitly requires both that the 'arming' take place during the underlying crime and that it have some 'facilitative nexus' to that offense," "[e]vidence that a firearm is kept in close proximity to illegal drugs satisfies this 'facilitative nexus' requirement; a firearm's presence near a drug cache gives rise to the inference that the person in possession of the drugs kept the weapon close at hand for 'ready access' to aid in the drug offense." (Ibid.)
These principles also apply to the crime of transportation of a controlled substance. In Pitto, supra, 43 Cal.4th 228, the defendant was convicted of possession and transportation of methamphetamine and was found to have been armed during the commission of these offenses within the meaning of section 12022. (Id. at pp. 234-235.) At trial, the defendant testified that he planned to drive his minivan to Clear Lake for Memorial Day weekend. Before driving to the lake, he pulled into a casino parking lot, where police searched the vehicle and found methamphetamine, an unloaded handgun, and six rounds of ammunition behind the driver's seat. The defendant admitted to placing the drugs and gun together in the back of the minivan. (Id. at pp. 232-233.)
After discussing Bland, supra, 10 Cal.4th 991, our Supreme Court explained: "Applying the foregoing principles here, this was a classic case for finding that the defendant was armed while possessing and transporting a controlled substance. According to the evidence on both sides, defendant's Ruger pistol and his 12 grams of methamphetamine sat almost side by side inside his minivan as he drove to the lake and stopped at the casino. By his own admission, such close proximity did not occur through ignorance or happenstance. Rather, defendant placed the gun and drugs there together, on purpose, while preparing for a long holiday weekend. Prosecution evidence indicated that he could reach both the gun and the bullets from the driver's seat, and that the gun could be loaded quickly. Thus, a rational jury could have concluded beyond a reasonable doubt that the gun was available 'to protect the defendant during a drug sale, to guard against theft of the drugs, or to ward off police.' " (Pitto, supra, 43 Cal.4th at p. 238, quoting Bland, supra, 10 Cal.4th at p. 1002.)
In this case, defendant argues that, unlike Pitto, supra, 43 Cal.4th 228, the methamphetamine and handgun were "nowhere near" each other. Nor, argues defendant, is there "direct evidence showing that [he] even knew the .25-caliber handgun was in the covered jack compartment of the Blazer." Defendant also points out that both he and his wife had access to the vehicle, the gun was not loaded, the clip was found inside the jack compartment, and "no one sitting in the driver's seat could possibly have reached the jack compartment, much less the gun itself." While we agree that Pitto presents a stronger case for finding an arming enhancement, we nevertheless conclude that substantial evidence supports the jury's finding that defendant was armed with a firearm while transporting methamphetamine.
First, a gun need not be immediately adjacent to the drugs or within arm's reach of the defendant in order to be available for use in connection with the drug offense. As did our Supreme Court in Bland, supra, 10 Cal.4th at page 1002, we look to federal precedent interpreting the "facilitative nexus" requirement. In United States v. Castro-Lara (1st Cir. 1992) 970 F.2d 976, the United States Court of Appeals for the First Circuit explained that the "critical concern is not whether the gun was 'instantly available' or 'exclusively dedicated to the narcotics trade,' but whether it was 'available for use' in connection with the narcotics trade." (Id. at p. 983.) There, the defendant was "apprehended in his car, at the scene of a drug pickup, with the gun inside the car's trunk." (Ibid.) Despite the fact that the gun was not within arm's reach of the defendant and the drugs had not yet been delivered, the court found substantial evidence to support the jury's conclusion that the gun was " 'available for use' during and in relation to the drug trafficking crime." (Ibid.) The court explained that "a rational jury was free to conclude that the location of the firearm -- near a large sum of cash, in close proximity to live ammunition, and at a place where drugs were to be delivered -- coupled with the timing -- [the defendant] brought the gun to the airstrip in the course of taking delivery of a sizeable quantity of cocaine -- supported a finding that the firearm was 'available for use' during and in relation to the drug trafficking crime." (Ibid.)
Here, defendant transported methamphetamine in his Blazer. The gun and clip were in the jack compartment of the rear cargo area. The evidence established that defendant could have accessed the gun and loaded it within 15 to 20 seconds. This could be done either by climbing into the back seat and reaching into the cargo area or by walking around the vehicle and opening the back. And while defendant would have been required to stop the Blazer in order to access the gun, the crime of transportation continues as long as the controlled substance is being moved from one location to another, whether by vehicle or by foot travel. (See People v. Ormiston (2003) 105 Cal.App.4th 676, 682-684.) Thus, even if defendant was required to stop the Blazer and retrieve the gun from the cargo area to guard against theft of the drugs or to ward off police, the methamphetamine in defendant's beanie cap would have continued its movement during the gun's retrieval. Moreover, a successful defense of the drugs would have enabled defendant to restart the Blazer and continue the transportation by vehicle. Based on these facts, we conclude that the gun was available for use during and in relation to the crime of transportation of methamphetamine.
Second, contrary to defendant's suggestion, there need not be direct evidence that he knew the gun and clip were in the jack compartment. When the prosecution has proved a charge of transportation of a controlled substance and the evidence at trial shows that a firearm is readily accessible in the means of conveyance, we believe that a jury may reasonably infer: (1) that the defendant knew of the firearm's presence; and (2) that its presence in the same vehicle as the drugs was not accidental or coincidental. (See Bland, supra, 10 Cal.4th at p. 995.) Here, the only evidence offered by defendant to refute these reasonable inferences is the fact that his wife also had access to the Blazer. The jury impliedly found that this was not enough. We are inclined to agree.
Substantial evidence supports the jury's finding that defendant was armed with a firearm in the commission of a felony within the meaning of section 12022.
Defendant also argues that the trial court prejudicially erred in refusing his request to instruct the jury on simple possession as a lesser-included offense of transportation. He is mistaken.
A trial court has a sua sponte duty to "instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser." (People v. Birks (1998) 19 Cal.4th 108, 118.) For purposes of this instructional duty, "a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (Id. at p. 117.) Thus, two tests are used: (1) the "elements test," which determines whether "all the legal elements of the lesser offense are included in the definition of the greater crime, such that the greater cannot be committed without committing the lesser"; and (2) the "accusatory pleading test," which determines "whether the accusatory pleading describes the greater offense in language such that the offender, if guilty, must necessarily have also committed the lesser crime." (People v. Moon (2005) 37 Cal.4th 1, 25-26.)
Defendant was not entitled to an instruction on possession as a lesser-included offense of transportation under the elements test. "[W]hile possession of a controlled substance is often a circumstance tending to prove transportation, possession is not an essential element of the offense of transportation of narcotics. One can transport drugs without necessarily being in possession of the drugs. The offense of transportation thus can be committed without necessarily committing the offense of possession. [Citation.]" (People v. Watterson (1991) 234 Cal.App.3d 942, 947; People v. Rogers (1971) 5 Cal.3d 129, 134 (Rogers) [possession not necessary to establish transportation; where a defendant aids and abets passenger in carrying or conveying drugs, he or she is guilty of transportation even though the drugs are in the passenger's exclusive possession].)
Turning to the accusatory pleading test, the information pleads the transportation charge in the following terms: "On or about 08/20/09 the crime of TRANSPORTATION/SELLING OF A CONTROLLED SUBSTANCE, in violation of Section 11379 of the Health and Safety Code, a FELONY, was committed by KEVIN ALEXANDER ROSENBLUM, who at the time and place last aforesaid, did willfully and unlawfully transport, import into the State of California, sell, furnish, administer, and give away, and offer to transport, import into the State of California, sell, furnish, administer, and give away, and attempt to import into the State of California and transport a controlled substance, to wit, METHAMPHETAMINE."
While the information alleges that defendant also sold and offered to sell methamphetamine, "possession of a controlled substance cannot be a necessarily lesser included offense of selling or offering to sell" because "the former crime contains elements a sales offense does not: knowing possession of a usable quantity. [Citation.] A conviction for selling controlled substances does not require proof of possession at all, much less possession of a usable quantity. [Citations.]" (People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524; People v. Murphy (2007) 154 Cal.App.4th 979, 984 ["possession is not an essential element of the sale offense" because "one can broker a sale of a controlled substance that is within the exclusive possession of another"].) Nor do the allegations of importing, furnishing, administering, or giving away necessarily require defendant to have possessed a usable amount of methamphetamine. Because the transportation count charged in the information does not allege that defendant possessed methamphetamine, possession was not a lesser-included offense under the accusatory pleading test.
Nevertheless, relying on a footnote in Rogers, supra, 5 Cal.3d 129, defendant argues that we should look to the evidence adduced during trial and conclude that because he was "indisputably the actual and sole possessor, simple possession must be a lesser-included offense." As mentioned, our Supreme Court held in Rogers that possession is not necessary to establish transportation. The court then posited in a footnote: "In cases where defendant's possession is incidental to, and a necessary part of, the transportation charged, and no prior or subsequent possession is shown, the offense of possession is deemed to be necessarily included in the offense of transportation, and defendant may not be convicted of both charges." (Id. at p. 134, fn. 3.) Defendant acknowledges that this passage is dicta, but argues that it "makes perfect sense." We disagree with defendant's argument for two reasons. First, the footnote speaks of the transportation charged, not the transportation proven at trial. Here, the information does not allege that the transportation charge was based upon defendant's possession of the methamphetamine.
Second, and more importantly, even if this footnote can be read as suggesting that we should consider the evidence when determining whether a lesser offense is necessarily included in a greater offense, this dicta is inconsistent with more recent holdings of our Supreme Court. In People v. Ortega (1998) 19 Cal.4th 686, our Supreme Court explained: "There are several practical reasons for not considering the evidence adduced at trial in determining whether one offense is necessarily included within another. Limiting consideration to the elements of the offenses and the language of the accusatory pleading informs a defendant, prior to trial, of what included offenses he or she must be prepared to defend against. If the foregoing determination were to be based upon the evidence adduced at trial, a defendant would not know for certain, until each party had rested its respective case, the full range of offenses of which the defendant might be convicted. Basing the determination of whether an offense is necessarily included within another offense solely upon the elements of the offenses and the language of the accusatory pleading promotes consistency in application of the rule precluding multiple convictions of necessarily included offenses, and eases the burden on both the trial courts and the reviewing courts in applying that rule. Basing this determination upon the evidence would require trial courts to consider whether the particular manner in which the charged offense allegedly was committed created a sua sponte duty to instruct that the defendant also may have committed some other offense. In order to determine whether the trial court proceeded correctly, a reviewing court, in turn, would be required to scour the record to determine which additional offenses are established by the evidence underlying the charged offenses, rather than to look simply to the elements of the offenses and the language of the accusatory pleading." (Id. at p. 698, overruled on another point in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229; see also People v. Montoya (2004) 33 Cal.4th 1031, 1036.)
Finally, even if defendant were correct that possession of methamphetamine was a lesser-included offense of transportation of methamphetamine based on the facts of this case, the trial court still did not err because there was no substantial evidence that defendant possessed, but did not also transport, the methamphetamine. As mentioned, a trial court must instruct on a lesser-included offense "if there is substantial evidence the defendant is guilty only of the lesser." (People v. Birks, supra, 19 Cal.4th at p. 118, italics added.) Here, the evidence showed that defendant drove his Blazer while in possession of methamphetamine. Because there are no facts refuting the showing that defendant moved the methamphetamine from one location to another, a reasonable jury could not find that he possessed methamphetamine but did not also transport the drug. Thus, the same evidence defendant relies upon to argue that possession is a lesser-included offense of transportation dooms his claim that the trial court erred in failing to instruct on possession.
We also reject defendant's claim that the trial court prejudicially erred in failing to provide the jury with a unanimity instruction regarding the possession of ammunition counts.
A criminal defendant has a constitutional right to a unanimous verdict and "the jury must agree unanimously the defendant is guilty of a specific crime." (People v. Russo (2001) 25 Cal.4th 1124, 1131.) Thus, "[i]n any case in which the evidence would permit jurors to find the defendant guilty of a crime based on two or more discrete acts, either the prosecutor must elect among the alternatives or the court must require the jury to agree on the same criminal act. [Citation.] Where it is warranted, the court must give the instruction sua sponte. [Citation.] The omission of a unanimity instruction is reversible error if, without it, some jurors may have believed the defendant guilty based on one act, while others may have believed him [or her] guilty based on another. [Citation.]" (People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1588-1589.)
For example, in People v. Crawford (1982) 131 Cal.App.3d 591 (Crawford), the defendant was convicted of possession of a firearm by an ex-felon. (Id. at p. 593.) The evidence at trial revealed that two handguns were found in the defendant's bedroom (.357 magnum and .22 luger) and two handguns were found in a bedroom occupied by another person (.38 derringer and .357 magnum). The defendant's girlfriend testified that the .22 luger belonged to her. While the jury was instructed that they must find that the defendant possessed one or more handguns, they were not instructed that they must unanimously agree as to which one or more of the guns he possessed. Nor did the information specify which gun or guns the defendant was charged with possessing. (Id. at pp. 594-595.) The Court of Appeal found reversible instructional error, explaining: "[T]he various acts of possession in this case involve a variety of handguns located in various portions of the house. Moreover, the evidence presented at trial, if believed, suggested the circumstances surrounding the .22 luger were different than those surrounding either of the .357 magnums, nor were the relevant indicia of possession as to each .357 magnum similar. Certain jurors might quite easily have been persuaded beyond a reasonable doubt that appellant possessed one gun, but not another." (Id. at p. 598.)
In this case, the information charged defendant with two counts of possession of unspecified ammunition (Counts 4 and 5). And, as defendant observes: "During the search of [his] Blazer, officers found a magazine containing six rounds of .25 caliber ammunition. In a box in his garage, they found shotgun 'slugs.' Inside a locked safe in the garage, they also found some .32 caliber rounds." Based on Crawford, supra, 131 Cal.App.3d 591, defendant asserts that we must reverse both possession of ammunition counts. We are not persuaded. The verdict forms informed the jury that Count 4 involved "shotgun shells" and Count 5 involved "handgun ammunition." The prosecutor also informed the jury during closing argument that Count 4 involved "shotgun shells" and Count 5 involved "handgun shells." He then clarified that the shotgun shells were actually "slugs" and the handgun shells were ".25 caliber." The only shotgun slugs found by police were found in the Nextel box next to the shotgun. Thus, an election was clearly made with respect to Count 4.
With respect to Count 5, a clip containing six .25-caliber rounds was found next to the handgun in the back of the Blazer; miscellaneous ammunition, including one .25-caliber round, was found in the locked safe in the garage. Theoretically, some jurors could have concluded that defendant possessed the .25-caliber rounds in the clip while other jurors could have found that he possessed the single .25-caliber round in the safe. However, during closing argument, the prosecutor mentioned the safe in the garage and made clear that the ammunition found therein was relied upon only to the extent that defendant's knowledge of the contents of the safe made it more likely that he also knowingly possessed the handgun in the car. We find that a reasonable jury would have understood that the prosecution was relying on the .25-caliber rounds in the clip to support the possession of ammunition charged in Count 5.
The trial court did not err in failing to provide the jury with a unanimity instruction with respect to the possession of ammunition counts. And, in any event, because the jury also found defendant guilty of possessing the handgun that was next to the clip in the back of the Blazer, we do not believe there to be a reasonable possibility of disagreement among the jurors as to whether defendant possessed the .25 caliber rounds in the clip. Thus, any error in failing to provide a unanimity instruction would be harmless. (See People v. Burns (1987) 196 Cal.App.3d 1440, 1458.)
Prior Strike Admission
Defendant further asserts that the trial court failed to advise him of his Boykin-Tahl*fn2 rights prior to accepting his admission to the prior strike allegation, and that, under the totality of the circumstances, this admission was not voluntary and intelligent. We disagree.
A criminal defendant's plea of guilty amounts to a waiver of three constitutional rights: (1) the privilege against self-incrimination; (2) the right to a trial by jury; and (3) the right to confront one's accusers. Accordingly, the trial court must advise a defendant of these rights before taking such a plea. (Boykin, supra, 395 U.S. at p. 243 [23 L.Ed.2d at p. 279]; Tahl, supra, 1 Cal.3d at p. 132 ["each of the three rights mentioned ―― self-incrimination, confrontation, and jury trial ‒‒ must be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his [or her] guilty plea"].) For a waiver of these constitutional rights to be valid, it must be knowing, intelligent, and voluntary. (Boykin, supra, 395 U.S. at p. 243.)
In California, the Boykin-Tahl advisements must also be given before the trial court may accept a criminal defendant's admission that he or she has prior felony convictions. (In re Yurko (1974) 10 Cal.3d 857, 863.) "As an accused is entitled to a trial on the factual issues raised by a denial of the allegation of prior convictions, an admission of the truth of the allegation necessitates a waiver of the same constitutional rights as in the case of a plea of guilty." (Ibid.) The trial court must also advise such a defendant of "the full penal effect of a finding of the truth of an allegation of prior convictions." (Id. at p. 865.)
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 (Mosby).)
In Mosby, supra, 33 Cal.4th 353, our Supreme Court drew a distinction between "silent-record cases" and cases of "[i]ncomplete advisement of Boykin-Tahl rights." (Id. at pp. 361-363.) In the former situation, the record reveals "no express advisement and waiver of the Boykin-Tahl rights before a defendant's admission of a prior conviction." (Id. at p. 361.) "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 p. 362.) In the incomplete advisement situation, the defendant is advised of the right to have a trial on the alleged prior conviction, but not the privilege against self-incrimination or the right to confront witnesses. It is in these cases that we "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." (Id. at p. 361.)
In this case, while the jury was deliberating, defense counsel indicated that, should there be a conviction, defendant would "waive a jury trial" on the prior strike allegation. The trial court then addressed defendant: "[Y]ou understand that we're putting the cart before the horse, but if there's a conviction, you would have a right to a jury that would decide whether you have a strike prior, and what [defense counsel] is telling [me] is you are willing to waive jury trial, just for that strike, to decide whether you have a strike." Defense counsel asked: "Different jury, right?" The trial court answered: "No, it's the same jury." Defense counsel then asked: "Do we have to decide right now?" The trial court responded: "You need to take some time and explain it to your client."
The following day, the jury reached a verdict. After the verdict was read, the following exchange took place between the trial court and defense counsel: "[The trial court]: [D]id your client want to -- does he want a jury trial on the priors or is he going to -- [¶] [Defense counsel]: We'll waive that. [¶] [The trial court]: You'll waive the jury trial? [¶] [Defense counsel]: Yes." The jury was then excused and a date was set for the court trial on the prior strike allegation, to be held concurrently with the sentencing hearing.
At the sentencing hearing, defense counsel informed the trial court that defendant would be admitting the prior strike. The trial court then addressed defendant: "[A]s to all counts, it is alleged that you have suffered a prior strike, specifically that on October 3rd, 1997, in Alameda County, you were convicted of the crime of voluntary manslaughter, a violation of section 192(a) of the Penal Code. [¶] Do you admit that prior?" Defendant responded: "Yes." Based on the admission, the trial court found the prior strike allegation to be true.
Defendant argues that this is "essentially a silent record case," and that "[n]othing in this record permits the inference that [he] was aware of all of his rights, or that his admissions were voluntary and intelligent under the totality of the circumstances." We are not persuaded. In Mosby, supra, 33 Cal.4th 353, as here, the defendant was advised of the right to have a trial on the alleged prior conviction, but not the privilege against self-incrimination or the right to confront witnesses. Nevertheless, our Supreme Court found his admission to the prior conviction to be intelligent and voluntary, explaining: "Here, defendant, who was represented by counsel, had just undergone a jury trial at which he did not testify, although his co-defendant did. Thus, he not only would have known of, but had just exercised, his right to remain silent at trial, forcing the prosecution to prove he had sold cocaine. And, because he had, through counsel, confronted witnesses at that immediately concluded trial, he would have understood that at a trial he had the right of confrontation." (Id. at p. 364.) Similarly, here, defendant was informed by the trial court that he had the right to a jury trial on the prior strike allegation, and he had just gone through a jury trial on the underlying offenses, during which he chose not to testify and, through counsel, confronted the witnesses produced by the prosecution.
The Mosby court also explained that " 'a defendant's prior experience with the criminal justice system' is, as the United States Supreme Court has concluded, '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.]" (Mosby, supra, 33 Cal.4th at p. 365.) There, the defendant's "prior conviction was based on a plea of guilty, at which he [or she] would have received Boykin-Tahl advisements." (Ibid.) Here, defendant's prior conviction was also based on a guilty plea. And while defendant argues that the previous plea occurred "in 1997, fourteen years before" his admission in this case, and that "[t]here is no evidence in this record that he was properly advised at his prior trial, or that he remembered an[y] such admonitions fourteen years later," we presume, as did the Mosby court, that Boykin-Tahl advisements were given prior to defendant's guilty plea. Nor do we believe that the intervening span of time undermines the inference that this prior plea, coupled with the advisement and waiver of defendant's Boykin-Tahl rights, made him knowledgeable about these rights.
We conclude that defendant's admission to the prior strike allegation was voluntary and intelligent under the totality of the circumstances.
Retroactive Application of Section 4019
Finally, defendant claims that he is entitled to additional accrual of conduct credits under the most recent incarnation of section 4019. Not so.
As defendant points out, effective October 1, 2011, the Legislature amended section 4019 to provide, without any exclusions, that "a term of four days will be deemed to have been served for every two days spent in actual custody." (§ 4019, subd. (f).) Subdivision (h) expressly provides that this change "shall apply prospectively and shall apply to prisoners who are committed to a county jail, city jail, industrial farm, or road camp for a crime committed on or after October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior law." (§ 4019, subd. (h), italics added.) Defendant's crime was committed before October 1, 2011. And, as defendant acknowledges, under the prior law, he was excluded from this additional accrual of conduct credit because he has a prior serious felony conviction. (See former § 4019, subds. (b) & (c), as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 3X 28, § 50, eff. Jan. 25, 2010; former § 2933, subd. (e)(3), as amended by Stats. 2010, 2009-2010 Reg. Sess., ch. 426, § 1, eff. Sept. 28, 2010.)
Defendant argues that, despite the express terms of section 4019, "equal protection compels that the amendment to section 4019 effective October 1, 2011 be applied to award [defendant] one-for-one conduct credit." Based on our Supreme Court's recent decisions in People v. Brown (2012) 54 Cal.4th 314 (Brown) and People v. Lara (2012) 54 Cal.4th 896 (Lara), we conclude that equal protection principles do not require retroactive application of the October 1, 2011, amendment to section 4019.
In Brown, our Supreme Court rejected an argument that "apply[ing] former section 4019 prospectively violates the equal protection clauses of the state and federal Constitutions. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a).)" (Brown, supra, 54 Cal.4th at p. 328.) The court explained: "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."' [Citation.]" (Ibid.) The court then explained that a statute authorizing incentives for good behavior has "important correctional purposes," i.e., promoting good behavior, which "are not served by rewarding prisoners who served time before the incentives took effect and thus could not have modified their behavior in response. That prisoners who served time before and after former section 4019 took effect are not similarly situated necessarily follows." (Ibid., citing with approval In re Strick (1983) 148 Cal.App.3d 906, 913 ["incentive purpose has no meaning if an inmate is unaware of it"]; see also In re Stinnette (1979) 94 Cal.App.3d 800, 806 ["it is impossible to influence behavior after it has occurred"].)
As in this case, the defendant in Brown relied on In re Kapperman (1974) 11 Cal.3d 542 (Kapperman), a case holding "that equal protection required the retroactive application of an expressly prospective statute granting credit to felons for time served in local custody before sentencing and commitment to state prison." (Brown, supra, 54 Cal.4th at p. 330.) The court rejected the contention that the question of retroactive application of former section 4019 was controlled by Kapperman, explaining: "Credit for time served is given without regard to behavior, and thus does not entail the paradoxical consequences of applying retroactively a statute intended to create incentives for good behavior. Kapperman does not hold or suggest that prisoners serving time before and after the effective date of a statute authorizing conduct credits are similarly situated." (Brown, supra, 54 Cal.4th at p. 330.)
The same reasoning applies with equal force to the current version of section 4019. (Lara, supra, 54 Cal.4th at p. 906, fn. 9; see also People v. Ellis (2012) 207 Cal.App.4th 1546.)
Accordingly, we conclude that defendant is not entitled to the additional accrual of conduct credits under the October 1, 2011, amendment to section 4019.
The judgment is affirmed.
We concur: ROBIE , Acting P. J. DUARTE , J.