People v. Mosby

• Decision Date: 31 January 2002
• Docket Number: No. C033593.,C033593.
• Citation: 95 Cal.App.4th 967,116 Cal.Rptr.2d 208
• Parties: The PEOPLE, Plaintiff and Respondent, v. Clyde MOSBY, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

116 Cal.Rptr.2d 208

95 Cal.App.4th 967

The PEOPLE, Plaintiff and Respondent, v. Clyde MOSBY, Defendant and Appellant.

No. C033593.

Court of Appeal, Third District,

January 31, 2002.

Certified for Partial Publication.^*

Review Granted May 1, 2002.

Steven A. Torres, Torres & Torres, Boston, MA, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Stan Cross, Supervising Deputy Attorney General, Susan J. Orton, Deputy Attorney General, for Plaintiff and Respondent.

KOLKEY, J.

I. INTRODUCTION

After a jury found defendant Clyde Mosby guilty of selling cocaine (Health & Saf.Code, § 11352, subd. (a)), defendant admitted that he had suffered a prior conviction for possession of a controlled substance within the meaning of Health and Safety Code section 11370, subdivisions (a) and (c).

On appeal, he contends that the trial court (1) failed to properly admonish him and obtain the requisite waivers, as required by In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449 (Tahl), before he admitted his prior conviction, and (2) erred in instructing the jury pursuant to CALJIC No. 17.41.1. Since defendant was not prejudiced in either case, we shall affirm.

In the published portion of this opinion, we address whether a defendant's admission of a prior conviction is voluntary and intelligent—the test for harmless error here—when the record reflects that the defendant has expressly waived his right to both a jury and court trial in connection with his admission of his prior conviction, but has neither been expressly advised of, nor waived, his rights to remain silent or to confront witnesses in accordance with Tahl, supra, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449. We conclude that a defendant has made a voluntary and intelligent decision to admit his prior conviction, when he has expressly waived his right to both a jury and court trial over the issue of his prior conviction pursuant to the advice of counsel, and has just completed a jury trial, where he has confronted witnesses and exercised his right to remain silent. Under those circumstances, a defendant must necessarily be aware that the waiver of his right to trial means that he is waiving his right to confront witnesses at that waived trial, and that by admitting his prior conviction, he is waiving his right to remain silent over the existence of that conviction. It would exalt a formula (the specific admonitions to be enumerated for a valid plea under Tahl) over the very standard that the formula is supposed to serve (that the plea is intelligent and voluntary)—and would affront common sense—to suggest that a defendant, who has just completed a contested jury trial, is nonetheless unaware that he is surrendering the protections of such a trial when he thereafter expressly waives his right to both a jury and court trial over the issue of his prior conviction pursuant to the advice of counsel and instead admits the conviction. While we do not condone the trial court's failure to give the required admonitions under Tahl, supra, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, neither do we consider, on this record, the defendant's admission of his prior conviction to be anything but intelligent and voluntary.

II. FACTUAL AND PROCEDURAL BACKGROUND

Given the contentions on appeal, the underlying facts of the offense may be briefly stated.

An undercover police officer approached Alice Fulbright, and asked where he could get a "20," i.e., $20 worth of rock cocaine. Fulbright directed the officer to another location, where defendant motioned the officer over. When the officer pulled up, defendant approached the vehicle, and the officer told defendant that he wanted $20 worth of rock cocaine. Defendant responded "all right," and told a second man that the officer wanted a 20. The officer gave the second man $20 in exchange for a piece of rock cocaine.

Defendant and Fulbright were each charged with one count of selling cocaine in violation of Health and Safety Code section 11352, subdivision (a). Defendant was also alleged to have suffered a prior felony conviction for possession of a controlled substance within the meaning of Health and Safety Code section 11370, subdivisions (a) and (c).

The jury found both defendant and Fulbright guilty of selling cocaine. Defendant waived his right to a jury over the adjudication of his prior felony conviction allegation and subsequently admitted it.

III. DISCUSSION

A. Defendant's Admission of His Prior Conviction

We address first defendant's claim that the trial court failed to properly admonish him and obtain the requisite waivers before he admitted his prior conviction.

1.

After the jury had reached its verdicts, but before they were announced, the court engaged in the following colloquy with defendant and his counsel:

"The Court: . . . Before we bring the jury back, however, with respect to Mr. Mosby [the defendant], the information alleges a prior felony conviction by Mr. Mosby, which was bifurcated.

"The question is, should this jury return a guilty verdict as to Mr. Mosby, the hearing on whether it is true he did suffer such a prior conviction. Mr. Dawson.

"Mr. Dawson [Defendant's Counsel]: Your Honor, I've spoken with Mr. Mosby, and at this time, he's willing to, first of all, waive jury on that issue. He will leave that in the hands of the court.

"But secondly, at [t]his time, I am in agreement that he will admit the enhancement. . . .

"The Court: Well, your understanding is he's willing to waive the jury?

"Mr. Dawson: Waive the jury and actually admit the prior offense.

"The Court: We can deal with that afterwards.

"Mr. Mosby, it's alleged in the information that you were convicted of a felony violation, a drug offense, back on or about May 5th of '93, that's alleged in the information, so that if that's true, you were convicted on this charge, this present charge, it would make you ineligible for probation, do you understand that?

"The Defendant: Yes.

"The Court: You are entitled to have this jury, if they should find you guilty, you're entitled to have this jury determine the truth of the allegation that you suffered this prior felony conviction.

"You're entitled to have the jury hear that and make a decision on whether that's true [or] not.

"Do you understand that?

"The Defendant: Yes.

"The Court: Do you waive and give up your right to have this jury make a determination as to whether you suffered such a prior conviction?

"The Defendant: Yes.

"The Court: And do you join in that, Mr. Dawson?

"Mr. Dawson: I do.

"The Court: Thank you. I'll ask the bailiff to return the jury to the courtroom."

After the jury verdicts were read and the jury polled and discharged, the court turned again to the issue of defendant's alleged prior conviction:

"The Court: First of all, as to the case and the prior conviction alleged against Mr. Mosby, Mr. Dawson, since Mr. Mosby wants the court to hear that matter, or prepared to admit the prior

"Mr. Dawson: He's prepared to admit the prior.

"The Court: Mr. Mosby, can you understand that you are entitled—you already waived having the jury determine the truth of this prior felony conviction of yours that's alleged. You are entitled to having waived the jury, you're entitled to have the court hear the matter, as well, to make a determination.

"Do you understand that?

"The Defendant: Yes.

"The Court: Do you waive and give up your right to have the court make that determination?

"The Defendant: Yes.

"The Court: Mr. Mosby, to the allegation in the information that on or about May 5th, 1993, in the Superior Court of the State of California for the County of Sacramento, you were convicted of a felony, controlled substance of narcotic drug offense, to wit, the crime of possession of a controlled substance in violation of Section 11350 of the Health and Safety Code.

"Do you admit or deny that?

"The Defendant: I admit it."

2.

Defendant contends that his sentence must be reversed, and the matter remanded for resentencing because before the trial court accepted his admission of his prior conviction, it "failed to advise [defendant] of any of his constitutional rights, other than his right to a jury trial, or to secure [defendant's] waiver of those rights." Accordingly, defendant argues that "the admissions were not `knowing and intelligent,' and this court must reverse [defendant's] three year eight month commitment. . . ."

In Boykin v. Alabama (1969) 395 U.S. 238, 242-244, 89 S.Ct. 1709, 1711-1713, 23 L.Ed.2d 274, 279-280 (Boykin), the United States Supreme Court held that it was error for a trial court to accept a defendant's guilty plea to a series of robberies "without an affirmative showing that it was intelligent and voluntary." (395 U.S. at p. 242, 89 S.Ct. at p. 1711, 23 L.Ed.2d at p. 279.) It explained that the waiver of three constitutional rights was involved in a plea-the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers and that it could not "presume a waiver of these three important federal rights from a silent record." (395 U.S. 238, 243-244, 89 S.Ct. 1709, 1712-1713, 23 L.Ed.2d 274, 279-280.)

In Tahl, supra, 1 Cal.3d 122, 81 Cal. Rptr. 577, 460 P.2d 449, limited on other grounds in Mills v. Municipal Court (1973) 10 Cal.3d 288, 302-311, 110 Cal. Rptr. 329, 515 P.2d 273, the California Supreme Court concluded (erroneously, as it turned out¹) that Boykin required "that each of the three rights mentioned—self-incrimination, confrontation, and jury trial—must be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his guilty plea. . . . [¶] This does not require the recitation of a formula by rote or the spelling out of every detail by the trial court. It does mean that the record must contain on its face direct...