People v. Davis

• Citation: 103 Cal.App.3d 270,163 Cal.Rptr. 22
• Decision Date: 12 March 1980
• Docket Number: Cr. 11278
• Parties: The PEOPLE, Plaintiff and Respondent, v. Glen Ray DAVIS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 22

163 Cal.Rptr. 22

103 Cal.App.3d 270

The PEOPLE, Plaintiff and Respondent, v. Glen Ray DAVIS, Defendant and Appellant.

Cr. 11278.

Court of Appeal, Fourth District, Division 1, California.

March 12, 1980.

Hearing Denied May 7, 1980.

Appellate Defenders, Inc. and Handy Horiye, San Diego, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Jay M. Bloom and Alan S. Meth, Deputy Attys. Gen., for plaintiff and respondent.

WIENER, Associate Justice.

Glen Ray Davis was charged with robbery (Pen.Code, § 211) ¹ in count I, attempted robbery (Pen.Code, §§ 664, 211) in count II, and possession of a concealable firearm by an ex-felon ( § 12021) in counts III and IV. In conjunction with counts I and II, it was alleged defendant personally used a firearm ( §§ 12022.5, 1203.06, subd. (a)(1)(iii).) Three prior felony convictions were also alleged, including an armed robbery in 1971 which was alleged to be a violent felony under section 667.5, subdivision (a). Defendant agreed to submit count II on the transcript of the preliminary hearing and waived his right to a jury trial. The court found him guilty of attempted robbery with personal use of a firearm and also found the allegation pertaining to the 1971 robbery to be true. The remaining counts and allegations were dismissed and stricken respectively. Defendant appeals his judgment of conviction.

We conclude that under Bunnell v. Superior Court (1975) 13 Cal.3d 592, 119 Cal.Rptr. 302, 581 P.2d 1086, the failure of the court to advise the defendant of his privilege against self-incrimination and obtain his express waiver before submitting the matter on the preliminary hearing transcript requires reversal. Accordingly, we reverse the judgment with directions to the court to reinstate the dismissed counts and stricken allegations. Among the remaining issues we address for the guidance of the court upon retrial and sentencing, we decide defendant's prior robbery conviction is not a violent felony, thus defendant's sentence can be enhanced for one year only under section 667.5, subdivision (b).

Factual Background

On December 19, 1978, at about 1:00 a. m., Raymond Williams, an employee of the Burger King located at 4625 Mission Bay Drive in San Diego, was leaving the restaurant at closing time, when defendant accosted him with a gun demanding the whereabouts of the safe. He led defendant to the safe, but told him he did not know the combination. Defendant then demanded he get the individual who did. When Williams' attempt to do so proved unsuccessful, defendant shot the gun at the floor in apparent frustration. The men then entered the office where defendant told Williams to open the cash drawers. The latter replied the drawers were locked and he did not have the keys. Defendant stated: "You better open these drawers, or you're going to be a dead man." Williams still maintained he could not do so because he did not have the keys. At about this time, he put the gun to Williams' head. He then ordered Williams onto the floor, ripped out the telephone line, and left.

San Diego Police Officer Ronald Hobson received a call regarding the attempted robbery and a description of the suspects. He proceeded towards Mission Bay Hospital where the suspect had last been seen; found defendant who fit the description in the parking lot; arrested him; and placed him in the rear of his patrol car. Williams was then brought to the scene and positively identified him. In the area between Burger King and Mission Bay Hospital, Officer Burstein discovered a loaded .38 caliber Smith and Wesson revolver which had been used in the attempted robbery.

I

Bunnell v. Superior Court, supra, 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086, requires that "in all cases in which the defendant seeks to submit his case for decision on the transcript . . . the record shall reflect that he has been advised of his right to a jury trial, to confront and cross-examine witnesses, and against self-incrimination." (Id., at p. 605, 119 Cal.Rptr. at p. 311, 531 P.2d at p. 1094.) A defendant must expressly waive each of his enumerated constitutional rights. (Id., at p. 605, 119 Cal.Rptr. 302, 531 P.2d 1086.) Defendant concedes he was properly admonished except for his right against self-incrimination.

The court told him of his right to ". . . call witnesses of your own to testify in the case; and if you want to get on the stand and testify as to the facts surrounding this charge of attempted robbery, you may do so." The subject matter was again addressed a few moments later by the prosecutor, causing defense counsel to reply: "That he has given up his right to testify on his own behalf, or not to testify, and has a right to call witnesses." The court then responded: "I have talked to Mr. Davis about each of those things. That covers it." The defendant was present during this dialogue. The following day, defendant reaffirmed his desire to the trial judge to put his case before him.

Our function is not to determine from the evidence whether defendant was aware of his right to remain silent. (In re Tahl (1969) 1 Cal.3d 122, 130-131, 81 Cal.Rptr. 577, 460 P.2d 449; People v. Levey (1973) 8 Cal.3d 648, 653, 105 Cal.Rptr. 516, 504 P.2d 452.) The face of the record must establish that defendant was expressly told of his right against self-incrimination and his express waiver of that right. (Id., at p. 653, 105 Cal.Rptr. 516, 504 P.2d 452; Bunnell v. Superior Court, supra, 13 Cal.3d at p. 605, 119 Cal.Rptr. 302, 531 P.2d 1086.) Here, the script was not followed. There was nothing in the explanation by the court to indicate that defendant could not be compelled to be a witness against himself. ² The judgment of conviction must be reversed; the remaining counts dismissed pursuant to the "slow plea" bargain shall be restored. (People v. Collins (1978) 21 Cal.3d 208, 215, 145 Cal.Rptr. 686, 577 P.2d 1026; In re Sutherland (1972) 6 Cal.3d 666, 672, 100 Cal.Rptr. 129, 493 P.2d 857.)

II

Defendant next contends the court erred in denying his motion to strike his 1971 prior felony conviction of robbery. The basis of his argument is that the record fails to demonstrate on its face that when he entered his plea of guilty to the 1971 robbery, he was advised of or personally waived his constitutional rights. We conclude defendant has waived his right to assert this issue for lack of diligence.

We assume arguendo that a pretrial hearing to determine the constitutional validity of a prior conviction as authorized by People v. Coffey (1967) 67 Cal.2d 204, 217, 60 Cal.Rptr. 457, 430 P.2d 15, is not limited solely to an attack on the constitutional infirmity of the denial of the right to counsel, but also permits the constitutional challenge of a prior conviction on the ground that the court failed to properly admonish defendant pursuant to Boykin-Tahl requirements before accepting his guilty plea. (Salazar v. Municipal Court (1975) 44 Cal.App.3d 1024, 1026-1028, 119 Cal.Rptr. 98, see also Ballard v. Municipal Court (1978) 84 Cal.App.3d 885, 889-892, 149 Cal.Rptr. 82; see contra People v. Lewis (1977) 74 Cal.App.3d 633, 639-640, 141 Cal.Rptr. 614.)

Admittedly the record is silent as to whether defendant was advised of his rights where he entered his plea in 1971. The minute order and change of plea form do not show compliance with the requirements of In re Tahl, supra, 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 460 P.2d 449. A reporter's transcript is not available to shed light on what occurred because in accordance with court policy the reporter's notes were destroyed after the expiration of five years. What the record does indicate is that after defendant was convicted in 1971 he was placed on probation. On April 11, 1974, he was sentenced to prison for violating the terms of his probation. He appealed the judgment on other grounds to this court, which we found to be without merit and affirmed the judgment. (People v. Davis (July 31, 1975) 4 Crim.No. 6855.) The Supreme Court denied his petition for hearing on September 24, 1975, and the remittitur was issued on September 30, 1975.

Defendant has never challenged the prior on the grounds that he was not advised of or waived his rights. His argument is restricted to the silence of the record. The issues which defendant now attempts to raise could have been presented in his appeal from his prior conviction. "He does not assert, for instance, that his failure to challenge such claimed improprieties was predicated on a lack of knowledge of his constitutional rights at a time when he might have made a timely challenge." (In re Ronald E. (1977) 19 Cal.3d 315, 322, 137 Cal.Rptr. 781, 785, 562 P.2d 684, 688.) Just as he could not now resort to habeas corpus relief as a substitute for appeal absent special circumstance constituting excuse for such failure where the claimed error could have been, but was not, raised upon a timely appeal from the judgment of conviction (id.; In re Walker (1974) 10 Cal.3d 764, 773, 112 Cal.Rptr. 177, 518 P.2d 1129), he may not do so here for lack of due diligence.

III

Defendant's principal term was five years the upper term of three years for attempted robbery plus two years for the firearm use ( § 12022.5). The principal term was increased enhanced by three years under section 667.5, subdivision (a) for an aggregate term of eight years because the new felony and the prior conviction of robbery with use of a firearm were both violent felonies specified in section 667.5, subdivision (c). ( § 667.5, subd. (a).) ³ The essential preliminary fact starting the process for the three-year enhancement was the deter mination that the attempted robbery with use of a firearm was one of the violent felonies specified in section 667.5, subdivision (c). ( § 667.5, subd. (a).)

Defendant's argument focuses on the alleged improper dual use of a section 12022.5 finding. That...