People v. Witcher (41 Cal. App. 4th 223, 1995)

Opinion

ANDERSON, P. J.

Glennell Witcher (appellant) was charged by information with two counts of petty theft with a prior conviction. (Pen. Code, § 666.) Two separate priors were charged in connection with the section 666 counts—a 1987 second degree robbery conviction and a 1990 second degree burglary conviction. The 1987 robbery conviction was also alleged as a “strike” pursuant to section 667, subdivisions (c), (d) and (e), and the sentence served on that conviction was charged as the basis for a section 667.5, subdivision (b), prior prison term enhancement allegation.

Prior to trial, appellant admitted the two priors for section 666 purposes. The jury found appellant guilty of both petty theft charges. Prior to sentencing appellant admitted his second degree robbery conviction for both section 667, subdivisions (b), (d), and (e), and section 667.5, subdivision (b), purposes. The trial court then sentenced appellant to a prison term of 48 months under the “two strikes” provisions of section 667—twice the lower term on the first section 666 conviction (32 months) plus twice one-third the middle term on the second conviction (16 months).

Appellant’s principal claim on appeal is that his admission of the two priors was not voluntary and intelligent for section 666 and sentencing purposes. He advances an additional challenge to the validity of his conviction—that he was prejudiced by the jury’s alleged receipt of written instructions addressing appellant’s prior convictions which were not read to the jury and which the court did not intend to give. He also challenges his sentence on several bases. We reverse the imposition of sentencing enhancements, but otherwise affirm.

I. The Court’s Inadequate Admonitions Necessitate a New Trial Concerning the Truth of the Prior Convictions

When a plea of guilty is entered by a defendant, he must be admonished about three constitutional rights: (1) the privilege against compulsory self-incrimination, (2) the right to trial by jury, and (3) the right to confront one’s accusers; in addition, the defendant must waive those rights knowingly and voluntarily. (Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709]; In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449]; People v. Howard (1992) 1 Cal.4th 1132, 1176-1179 [5 Cal.Rptr.2d 268, 824 P.2d 1315].) The same procedures must be employed for admission of prior convictions for sentencing purposes. (In re Yurko (1974) 10 Cal.3d 857, 863 [112 Cal.Rptr. 513, 519 P.2d 561].) In addition to admonition of these constitutional rights our Supreme Court has declared “as a judicially declared rule of criminal procedure” that an accused is entitled to be advised: (1) of any habitual criminal consequences, (2) of the precise increase in term which might be imposed, and (3) of the effect on eligibility for parole. (Id. at p. 864.) The failure to secure an express waiver of each enumerated right is, however, not reversible per se. (People v. Howard, supra, 1 Cal.4th at pp. 1177-1179.) The test is whether or not the record indicates that the admission was voluntary and intelligent “under the totality of the circumstances.” (Id. at p. 1178.) We now examine the record to determine whether or not appellant’s admissions were intelligent and voluntary.

A. The Admissions Prior to Trial

Just prior to the start of trial, the district attorney dismissed two counts of the information. The court then asked appellant’s counsel if appellant were planning to admit the two priors. Appellant’s counsel (Edward Rojas) said that appellant was planning to do so and to testify in his own behalf. The district attorney (Stephen Hall) then stated: “Your honor, perhaps for the sake of the record as well as counsel for [appellant] if the court could inquire and explain to [appellant] his rights relative to these issues.”

The court then explained to appellant that two counts of the information had been dismissed. The court went on to explain the remaining charges to appellant: “. . . Now ... in those two offenses you’re charged with the same allegation a violation of 666 of the Penal Code. The first count one alleges that that occurred on the 23rd of April, 1994, and it is alleged that you ... did willfully and unlawfully steal ... the personal property of another . . . said defendant having been previously convicted of the following crimes and having served a term therefor in a penal institution or having been imprisoned therein as a condition of probation for said offense in violation of Penal Code section 666. And then it again alleges the two prior convictions, the burglary conviction in the second degree out of San Mateo County which was suffered in 1990 and the second degree robbery conviction which allegedly occurred in San Francisco County of [sic\ the 10th of September, 1987 . . . .” Appellant replied that he understood what the court was saying. The court then explained the second count and received appellant’s assurance that he understood that charge, as well. Colloquy ensued: “The Court: So you have and I’ll let you discuss this with Mr. Rojas you can if you wish at this time admit those prior convictions out of the presence of the jury and you do, however, have a right to a jury trial. [^Q You have a right to require the prosecution to present it to the jury, or you can waive that right and admit them at this point in time and then the latter portion of each one of those charges would be stricken and would not be read to the jury. Mr. Hall, something you would like to add? [<¡0 Mr. Hall: I was just going to inquire of the court relative to informing Mr. Witcher of his right to have a separate trial on those priors. HO The Court: He does not have a right to a separate trial on the priors as alleged within the content of the two charges. HO Mr. Hall: Thank you. [U The Court: The 666. [f] Mr. Hall: I just wanted to make sure that was clear however you do have the right. Mr. Rojas: To stipulate them out. [