California Court of Appeals, Fourth District, Third Division
Appeal from a judgment of the Superior Court of Orange County No. 12WF1654 Donald F. Gaffney, Judge.
[Copyrighted Material Omitted]
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Christopher James Lloyd of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and found he inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)) during the assault. Trial on defendant’s five separate prior state prison commitments (Pen. Code, § 667.5, subd. (b)) was bifurcated from the trial on the assault. Defendant eventually admitted the five state prison priors more than seven months after the jury’s verdict. The trial court sentenced defendant to 11 years in state prison, consisting of a three-year midterm on the assault, a consecutive three-year term on the great bodily injury enhancement, and five consecutive one-year terms imposed pursuant to Penal Code section 667.5, subdivision (b).
We find two prejudicial errors. First, the prosecutor repeatedly argued in ways that diminished the reasonable doubt standard. When the court overruled defendant’s earlier objection, the prosecutor argued in rebuttal, “Well, what does not guilty mean? It means he did not commit a crime.” The prosecutor thus misstated the law, playing on a common misconception. Even though the jury was properly instructed with regard to reasonable doubt, we must conclude those instructions were weakened under the totality of the circumstances we find in this record. (People v. Vance (2010) 188 Cal.App.4th 1182, 1207 [116 Cal.Rptr.3d 98].) This was a close case. It was basically a swearing contest and there were credibility problems with witnesses on both sides. Had the prosecutor not misstated the law, there is a reasonable probability the jury would have returned a more favorable verdict for defendant.
The second critical error occurred when the court did not adequately advise defendant of his right to trial, to confront adverse witnesses, and to remain silent just prior to accepting defendant’s admission of his prior convictions. Just before accepting defendant’s admissions, the court only advised defendant of his right to a trial. The court did not advise defendant of his right to silence or to confront and cross-examine witnesses against him. According to the record on appeal, the last time defendant was advised of his Boykin-Tahl rights was when he was arraigned on the felony complaint, almost 15 months prior to his admission.
Timely advisement of these fundamental rights has been the law in this state for more than 40 years. (In re Yurko (1974) 10 Cal.3d 857 [112 Cal.Rptr. 513, 519 P.2d 561].)
But because trial courts have failed on a number of occasions to make the three clearly required advisements and obtain express waivers of each right, a line of cases involving incomplete Boykin-Tahl advisements has developed. (See People v. Mosby (2004) 33 Cal.4th 353 [15 Cal.Rptr.3d 262, 92 P.3d 841]; People v. Christian (2005) 125 Cal.App.4th 688 [22 Cal.Rptr.3d 861]; People v. Carroll (1996) 47 Cal.App.4th 892 [54 Cal.Rptr.2d 868]; People v. Torres (1996) 43 Cal.App.4th 1073 [51 Cal.Rptr.2d 77]; People v. Garcia (1996) 45 Cal.App.4th 1242 [53 Cal.Rptr.2d 256]; People v. Witcher (1995) 41 Cal.App.4th 223 [48 Cal.Rptr.2d 421]; People v. Howard (1994) 25 Cal.App.4th 1660 [31 Cal.Rptr.2d 103].) We publish this opinion to stress the need for trial courts to advise defendants of all their Boykin-Tahl rights and to obtain express waivers thereof. A defendant may knowingly and voluntarily enter an admission of a prior conviction even though the trial court failed to advise the defendant of the right to confront witnesses and to remain silent if a defendant “just” or “immediately” completed a jury trial at which he or she did not testify and counsel confronted witnesses on the defendant’s behalf. (People v. Mosby, supra, 33 Cal.4th at pp. 364-365.) We conclude, however, such an advisement occurring more than seven months later does not mandate the same result. A few scant minutes spent by a trial court advising a defendant and obtaining an express waiver of the right to a jury trial, the right to confrontation, and the right to silence, saves hours of time for both the appellate court and the trial court when a case must be remanded because the record does not demonstrate the defendant’s admission was entered freely and voluntarily. As Benjamin Franklin observed, “An ounce of prevention is worth a pound of cure.”
We conclude defendant was prejudiced by these errors. We therefore reverse both defendant’s conviction and his admissions of having served separate terms in state prison. The matter is remanded for retrial.
In June 2012, defendant and Karli Kellogg lived with two other males in a room at a Motel 6 in Westminster. Kellogg was working as a prostitute at the time. She admitted engaging in an act of prostitution on June 22, 2012.
On June 22, 2012, the night before the charged incident, Derwin Kemp, the victim, had an encounter with Kellogg. Although she had only had contact with Kemp two or three times before that night, Kellogg said she felt uncomfortable around Kemp and did not like him because he is Black. Kellogg said Kemp is a pimp and wanted her to work for him. She said she told him she did not want to work for him. According to Kellogg, Kemp then threatened to “smash [her] face in.” Kellogg took the threat seriously.
The next afternoon, Jason Herbold and Amber Baird visited Kellogg and defendant in their motel room. Around 4:00 p.m., Kemp, his friend Stephan Rice, Rice’s nephew Sean Joyner, and a girl named PJ went to the motel room uninvited. Kemp knew Kellogg would be there.
Kellogg told defendant about the previous night’s encounter with Kemp. She felt she needed to avoid contact with Kemp “at all costs” and was afraid he would make good on his threat. She told defendant she wanted Kemp and his friends to leave. Although she slammed the door in Kemp’s face, someone else in the room let Kemp and his friends in because it was thought what was being said at the front door was too loud.
Once inside the room, the dialogue between Kemp and Kellogg became heated. Kellogg testified Kemp said something demeaning about the money she was making. Kemp testified he did not threaten or insult Kellogg inside the motel room because “she’s a cripple, ” but he admitted he might have called her names.
During the argument, defendant went to Kellogg’s defense. She told him to calm down but ...