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The People v. Kelly Lee Bohannan

February 8, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KELLY LEE BOHANNAN, DEFENDANT AND APPELLANT.



(Super. Ct. Nos. 10F2176, 10F2330, 11F2362)

The opinion of the court was delivered by: Butz , J.

P. v. Bohannan

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Kelly Lee Bohannan appeals from the imposition of two sentence enhancements, a prior strike conviction and an on-bail enhancement. He contends (1) there is not sufficient evidence to support the true finding as to his prior strike conviction and (2) the on-bail enhancement must be stricken, as he did not admit it.

As to the first contention, we requested supplemental briefing as follows: After defendant withdrew his admission of the prior strike conviction to contest the validity of the strike, and the trial court's subsequent determination that the prior conviction was a valid strike, was the court required to comply with Penal Code section 1025*fn1 and have defendant personally answer that he had suffered the prior conviction before imposing the originally negotiated disposition? We find in the absence of a proper true finding on the prior strike conviction, the trial court was required to comply with section 1025 and obtain defendant's personal admission.

The People properly concede the second contention. Accordingly, we shall reverse and remand for further proceedings on the enhancement allegations.

FACTUAL AND PROCEDURAL BACKGROUND*fn2

In case No. 10F2176 defendant was charged in March 2010 with possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) It was further alleged he had a prior strike conviction in 1987 (Pen. Code, § 1170.12) and had served five prior prison terms (id., § 667.5, subd. (b)).

A few days later, defendant was charged in a separate complaint--case No. 10F2330-- with felony vandalism (Pen. Code, § 594, subd. (b)(1)), attempted auto theft (Veh. Code, § 10851, subd. (a)/Pen. Code, § 664), and misdemeanor counts of driving under the influence (Veh. Code, § 23152, subd. (a)), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), hit-and-run (Veh. Code, § 20002, subd. (a)) and obstructing a peace officer (Pen. Code, § 148, subd. (a)(1)). As to the felony charges, it was also alleged defendant had committed these offenses while he was released on bail in case No. 10F2176. It was further alleged defendant suffered a prior strike conviction (Pen. Code, § 1170.12) and had served five prior prison terms (id., § 667.5, subd. (b)).

In July 2010, in case No. 10F2176, defendant pleaded no contest to possessing methamphetamine and admitted the prior strike allegation. In case No. 10F2330, he pleaded no contest to felony vandalism, felony attempted vehicle theft and misdemeanor driving under the influence. He also admitted the prior strike conviction and five prior prison term allegations. The plea agreement indicated defendant would also admit the on-bail enhancement allegation. However, defendant did not actually enter that admission. Pursuant to the plea agreement, the remaining charges were dismissed. Defendant was provisionally granted probation if he completed the Teen Challenge treatment program. If he failed the program, he would be sentenced to a term of 15 years four months in state prison.

Approximately three weeks later, defendant moved to withdraw his admission of the prior strike, based on his claim that the 1987 conviction was a misdemeanor conviction, not a felony. The People acknowledged defendant had established a sufficient basis for withdrawing the admission and the trial court granted the motion.

At the hearing on the motion, the People noted defendant was now entitled to a jury trial on the strike allegation and indicated their willingness to proceed immediately to a court trial if defendant waived his right to a jury trial. Defense counsel and defendant indicated they were prepared to waive jury trial and proceed to a court trial. The court and counsel then set forth the issues to be addressed: first, the validity of the underlying felony conviction; second, whether ...


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