California Court of Appeals, Third District, Sacramento
CERTIFIED FOR PARTIAL PUBLICATION[*]
APPEAL from a judgment of the Superior Court of Sacramento County Nos. 09F06395, 11F03888, Greta Curtis Fall, Judge.
William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
BUTZ, Acting P. J.
A jury found defendant Joshua Cross guilty of felony infliction of corporal injury on the mother of his child, and misdemeanor infliction of abuse on the child (case No. 11F03888). It was unable to reach a verdict on a charge of robbery (which the trial court dismissed on the prosecutor’s motion). The jury also sustained an allegation of a prior conviction in 2010 for inflicting corporal injury on the mother of defendant’s child in 2009. The trial court sentenced defendant to a term in state prison for the felony, with a consecutive jail term for the misdemeanor. The trial court further found defendant in violation of the grants of probation in the 2009 incident (case No. 09F06395) and in another 2009 case (case No. 09F05116). It imposed a consecutive state prison term in case No. 09F06395, terminating probation in case No. 09F05116. It calculated conduct and custody credits only with respect to his current (May 2011) offense.
On appeal, defendant argues that trial counsel’s stipulation that defendant was convicted in 2010 for the 2009 incident of domestic violence was “tantamount to an admission of a prior conviction, ” and thus required the trial court to advise defendant of his fundamental trial rights and solicit his waiver of them before it could give effect to the stipulation. In the published part of this decision, we conclude the stipulation to the existence of a prior conviction was not tantamount to admitting all the elements of an enhancement; rather, the existence of the prior conviction was instead a sentencing factor authorizing the trial court to impose a more severe alternative sentencing scheme. As a result, the trial court was not required to advise defendant of his fundamental trial rights and solicit waivers of them before giving effect to the stipulation. We shall therefore affirm the judgment in case No. 11F03888. Defendant also maintains he was not awarded presentence credits that he had accrued in connection with case No. 09F06395. The People concede defendant is entitled to the credits. We shall affirm the sentence in case No. 09F06395, but as we explain in the unpublished part of the decision, we must remand for the trial court to calculate the conceded credits because the record on appeal is unclear.
The circumstances underlying defendant’s present or prior convictions are not relevant to his contentions. We therefore omit any factual summary and proceed to the Discussion.
I. Advisements and Waivers Were Not Necessary to Effect Stipulation
Before trial, the prosecutor successfully moved to admit defendant’s prior acts of domestic violence against the victim, including the August 2009 incident that resulted in his conviction in case No. 09F06395. At trial, the prosecutor submitted a stipulation with the defense, which recited that defendant had been convicted in January 2010 for an incident of domestic violence in August 2009 with the same victim as the current offense. The court later instructed the jury that it must accept the facts in a stipulation as true, and that the People had the burden of proving a prior conviction for domestic violence beyond a reasonable doubt (but reminding the jury that the fact of the prior conviction had been the subject of a stipulation). Defendant argues on appeal that before accepting the stipulation, the trial court should have advised him of his fundamental trial rights and solicited his waiver of them.
Because courts will not presume on a silent record that a defendant pleading guilty—an act that constitutes a conviction of itself—knowingly and intelligently waived the right to a jury, the right of confrontation, and the right against compulsory self-incrimination, a trial court in accepting a guilty plea must expressly advise the defendant of these rights and solicit a waiver of them on the record. (In re Tahl (1969) 1 Cal.3d 122, 132-133, applying Boykin v. Alabama (1969) 395 U.S. 238, 242 [23 L.Ed.2d 274].) This process of advisement and waiver applies as well in circumstances “tantamount to a plea of guilty” where conviction is the inevitable result, such as submitting the issue of guilt on a preliminary hearing transcript lacking any defense to the charges. (People v. Adams (1993) 6 Cal.4th 570, 576 (Adams).) This rule applies to both substantive offenses and enhancements. (Id. at pp. 576-577.) However, a defendant’s admission of “evidentiary facts” that do not embrace every element of an offense or an enhancement, and which therefore leaves something “prerequisite to imposition of punishment, ” is not subject to the need for advisements and waivers. (Adams, at pp. 577-578, 581.) To understand defendant’s argument that advisements and waivers were necessary in the present context, we quickly explain a pair of Supreme Court decisions (People v. Newman (1999) 21 Cal.4th 413 (Newman) and Adams, supra, 6 Cal.4th at p. 580) and People v. Little (2004) 115 Cal.App.4th 766 (Little), which distinguished the Supreme Court decisions.
Regarding the enhancement for committing secondary offenses while on bail for a primary offense, Adams concludeda stipulation to the fact of being on bail does not admit all the elements of the enhancement, because conviction of the primary offense is also an element of the enhancement (Adams, supra, 6 Cal.4th at pp. 580, 582), in contrast with the mere “prerequisite” of a conviction for the secondary offense to which the enhancement was attached (id. at p. 580, fn. 6). Returning to the issue in the context of a stipulation to felon status in a prosecution for unlawful possession of a firearm, Newman concluded prior Supreme Court dicta regarding the need for advisements and waivers before accepting stipulations to felon status were no longer viable because this admitted only one of the elements of the offense. (Newman, supra, 21 Cal.4th at pp. 417, 422-423 & fn. 6.) In Little, the defendant stipulated that he was under the influence of a controlled substance in violation of Health and Safety Code section 11550. (Little, supra, 115 Cal.App.4th at p. 772.) Little rejected the People’s argument that this stipulation did not embrace the mens rea of the offense (and thus did not require the process of advisement and waiver), concluding that the stipulation was not merely to being under the influence, but being under the influence within the meaning of the statute and thus was a complete admission of guilt. (Id. at p. 775.) It then held that a stipulation to all of the elements of an offense must include advisements and waivers to be effective (id. at pp. 776-778), explaining this was in fact the necessary implication of Adams and Newton both focusing on whether the stipulations at issue were tantamount to a guilty plea.
Penal Code section 273.5, subdivision (e)(1) (hereafter § 273.5(e)(1)) provides in pertinent part that “Any person convicted of violating this section for acts occurring within seven years of a previous conviction under subdivision (a)” is subject to a sentencing triad of two, four, or five years (as opposed to the two, three, or four years otherwise specified in subdivision (a) of the statute). Based on the principles we have just outlined, defendant therefore claims that his stipulation admitted the only element of what he terms is a recidivist “enhancement” of his current offense, because conviction of the underlying present offense is a mere prerequisite under Adams. The People, other than adverting to the possibility of nullification (a point that Adams rejected, as we noted) and attempting to argue defendant somehow retained his fundamental constitutional rights with respect to the fact of his prior conviction for domestic violence, do not identify any element of this “enhancement” that the stipulation did not admit. They also suggest (at length) that Little was wrongly decided and we should not follow it. Based on analogous precedent, which we asked the parties to ...