People v. Robertson
Decision Date | 10 December 1992 |
Docket Number | No. F015828,F015828 |
Citation | 14 Cal.Rptr.2d 572,11 Cal.App.4th 835 |
Parties | The PEOPLE, Plaintiff and Respondent, v. Harold Lloyd ROBERTSON, Jr., Defendant and Appellant. |
Court | California Court of Appeals Court of Appeals |
Appellant Harold Lloyd Robertson, Jr. was convicted by a jury of robbery (PEN.CODE, § 212.51, subd. (b)) with a personal firearm use enhancement ( § 12022.5; count 1), possession of a firearm by an ex-felon ( § 12021, subd. (a); count 3), possession of stolen property ( § 496, subd. 1; count 9), and conspiracy to commit second degree robbery ( §§ 182, subd. (a)(1)/212.5, subd. (b); count 10). The jury acquitted appellant on a second robbery count. It found true four of five overt acts alleged in the conspiracy count. In a bifurcated hearing, the trial court found that appellant had suffered a prior serious felony conviction ( § 667, subd. (a)) and had served three prior prison terms within the meaning of section 667.5, subdivision (b).
Appellant was sentenced to prison for 14 years and 8 months on the current charges. The court designated the sentence imposed in an earlier case (No. 40773A) as the subordinate term, stayed all but one year and four months of that term, and ordered it to run consecutively to the principal term.
On appeal appellant asserts he was denied effective assistance of counsel because of his trial attorney's failure to present the testimony of several witnesses appellant claims would have supported his alibi and mistaken identity defenses. He also claims the trial court committed reversible error when it accepted a stipulation as to appellant's ex-felon status without advising and obtaining personal waivers of the right to confrontation and the privilege against self-incrimination. Finally, he complains the judgment as entered did not reflect the correct number of presentence custody credits to which he was entitled in case No. 40773A.
We conclude the ineffective assistance of counsel claim lacks merit. While the court erred in receiving the stipulation of ex-felon status without full advisements and waivers, reversal is not required because it is not probable appellant was prejudiced by the error. We agree the judgment does not award appellant all credits to which he was entitled, and we remand solely for a redetermination of credits.
FACTS **
I. Appellant was not denied effective assistance of counsel. ***
II. Failure to comply with the Boykin/Tahl requirements as to appellant's admission of ex-felon status was harmless error.
Count 3 of the information charged appellant with being an ex-felon in possession of a firearm during the robbery of the Foot Locker store in Bakersfield on November 19, 1989. At the start of trial, the following exchange occurred between counsel, appellant and the trial court:
Appellant contends the conviction on count 3 must be overturned because the trial court did not obtain the necessary Boykin /Tahl waivers 4 before taking the stipulation, relying exclusively on People v. Hall (1980) 28 Cal.3d 143, 157, 167 Cal.Rptr. 844, 616 P.2d 826.
Pursuant to the principles set forth in Boykin and Tahl, before a trial court may accept an accused's admissions of guilt, express and specific admonitions and personal waivers as to each of the rights to trial, confrontation, and cross-examination, and the privilege against self-incrimination, must be given and received, or an admission or plea cannot be regarded as having been intelligently and voluntarily made. The record must reflect both the admonitions and the waivers. (In re Yurko (1974) 10 Cal.3d 857, 865, 112 Cal.Rptr. 513, 519 P.2d 561; People v. Wright (1987) 43 Cal.3d 487, 491-493, 233 Cal.Rptr. 69, 729 P.2d 260; People v. Stuckey (1988) 199 Cal.App.3d 876, 881, 245 Cal.Rptr. 225; Axness v. Superior Court (1988) 206 Cal.App.3d 1489, 1497, 255 Cal.Rptr. 896.) Although advisements do not have to be given in their literal constitutional terminology, they must be explained to the accused. Advisements must be such that they communicate to the average layperson the essential character of the constitutional right he or she is waiving. (People v. Lucky (1988) 45 Cal.3d 259, 284-285, 247 Cal.Rptr. 1, 753 P.2d 1052.) Here the record reflects appellant was advised of and waived his right to a jury trial, but the trial court did not give or receive waivers on the remaining rights identified in Boykin and Tahl.
Appellant did not enter a plea of guilty to the charge or admit to a particular crime. Instead, appellant admitted one element of the offense charged. The issue is thus whether Boykin /Tahl advisements are required and, if so, what is the consequence of a failure to give them. The issue was addressed in People v. Hall, supra, 28 Cal.3d at page 157, footnote 9, 167 Cal.Rptr. 844, 616 P.2d 826.
In Hall, the question was whether a defendant could stipulate to his status as an ex-felon when charged with possession under section 12021 and therefore keep his prior convictions from the jury. Our state Supreme Court held the defendant could. In its analysis, the court, in footnote 9, stated as follows:
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People v. Newman
...143, 157, fn. 9, 167 Cal.Rptr. 844, 616 P.2d 826 (Hall )) and from the Courts of Appeal (compare People v. Robertson (1992) 11 Cal.App.4th 835, 840-842, 14 Cal.Rptr.2d 572 (Robertson ), People v. Turner (1983) 145 Cal.App.3d 658, 670-671, 193 Cal.Rptr. 614 (Turner ), disapproved on another ......
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People v. Rodriguez
...closely related and analogous to the issue before us. It implicitly repudiated the dicta in Hall. (But see People v. Robertson (1992) 11 Cal.App.4th 835, 840-841, 14 Cal.Rptr.2d 572; People v. Robertson (1989) 48 Cal.3d 18, 41, 255 Cal.Rptr. 631, 767 P.2d 1109; People v. Wright (1987) 43 Ca......
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People v. Bray, F055926 (Cal. App. 9/28/2009)
...stipulation was a tactical choice and the prior conviction easily could be proven by reference to standard sources. (People v. Robertson (1992) 11 Cal.App.4th 835, 842-843, disapproved on another point in People v. Newman, supra, 21 Cal.4th at pp. 422-423, fn. 6.) At the May 5, 2008, prelim......
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Prior convictions of separate offenses
...all other constitutional rights and certainly knew he was incriminating himself and didn’t have to. In People v. Robertson (1992) 11 Cal.App.4th 835, Disapproved of by People v. Newman, infra , the court held that the failure to advise of trial rights before stipulating to ex-felon element ......
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Table of cases
...People v. Roberts (1956) 47 Cal.2d 374, §§7:20.31, 7:76.4 People v. Roberts (1992) 2 Cal.4th 271, §1:21.5 People v. Robertson (1992) 11 Cal.App.4th 835, §4:14.4 People v. Robinson (1994) 25 Cal.App.4th 1256, §10:35.4 People v. Robinson (1995) 31 Cal.App.4th 494, §§5:52.2, 5:53.4, 5:111.2 Pe......