People v. Witcher

• Decision Date: 20 December 1995
• Docket Number: No. A067930,A067930
• Citation: 48 Cal.Rptr.2d 421,41 Cal.App.4th 223
• Court: California Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 9717, 95 Daily Journal D.A.R. 16,884 The PEOPLE, Plaintiff and Respondent, v. Glennell WITCHER, Defendant and Appellant.

Page 421

48 Cal.Rptr.2d 421

41 Cal.App.4th 223, 95 Cal. Daily Op. Serv. 9717,

95 Daily Journal D.A.R. 16,884

The PEOPLE, Plaintiff and Respondent, v. Glennell WITCHER, Defendant and Appellant.

No. A067930.

Court of Appeal, First District, Division 4, California.

Dec. 20, 1995.

Rehearing Denied Jan. 18, 1996.

Certified for Partial Publication ^*

Susan D. Shors, under appointment by the Court of Appeal, San Francisco, for appellant.

Daniel E. Lungren, Attorney General of the State of California, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Thomas A. Brady, Don Jacobson, Deputy Attorneys General, San Francisco, for respondent.

ANDERSON, Presiding Justice.

Glennell Witcher (appellant) was charged by information with two counts of petty theft with a prior conviction. (PEN.CODE, § 666.)¹ 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. ² 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, subdivision (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, 89 S.Ct. 1709, 23 L.Ed.2d 274; 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, 112 Cal.Rptr. 513, 519 P.2d 561.) 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, 5 Cal.Rptr.2d 268, 824 P.2d 1315.) 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, 5 Cal.Rptr.2d 268, 824 P.2d 1315.) 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 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. [p] 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? [p] 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. [p] THE COURT: He does not have a right to a separate trial on the priors as alleged within the content of the two charges. [p] MR. HALL: Thank you. [p] THE COURT: The 666. [p] MR. HALL: I just wanted to make sure that was clear however you do have the right. [p] MR. ROJAS: To stipulate them out. [p] THE COURT: To stipulate them out as it relates to prior convictions one and two it might be somewhat confusing. I just want to make sure you understand, Mr. Witcher, to the extent that the two charges the two prior convictions are alleged as an element [sic ] of the 666 counts that are charged against you as it relates to those two charges you can if you wish admit in open court and waive your right to require the prosecution to prove those to the jury. You then have the right to admit them in court, and once they are admitted by you then the prosecution--that's an element [sic ] they do not have to prove but also the jury would not hear the fact and would not be brought to their attention as it relates to those two counts that you have the two prior convictions. [p] Now, also alleged for sentencing purposes, however, is prior number one which alleges again the second degree burglary conviction ... and prior number two the same burglary conviction which is alleged under a different code section so in essence you have the burglary conviction--strike that. The robbery conviction, 212.5 subsection (b), charged separately and distinctly as a prior conviction for the purpose of sentencing. [p] Now, as it relates to that allegation you have the right if you wish to have a bifurcated or what is known a split hearing. In other words that you can request the right to have that not presented to the jury. Ask them not to make that decision. You can ask that if in fact under that circumstance you were convicted of the charge or one or both of the charges then you would have a separate and distinct trial, and it could be either a court trial before a judge or it could be a jury trial before a jury as it relates to those two separate allegations. [p] [APPELLANT]: So let me.... [p] THE COURT: Why don't you take some time and discuss that with Mr. Rojas. I'll give about five minutes, Mr. Rojas. (Recess Taken.) [p] Mr. Rojas: Thank you for the recess, your honor. In discussions with Mr. Witcher, I believe that he is prepared at this time to admit the priors as they relate to counts now one and two and also to admit them as they relate to the priors under section[s] 667(e)(d) and 667.5(b). [p] THE COURT: All right. Mr. Witcher, we've had a lengthy discussion here as it relates to these prior allegations. Now based on your discussions, Mr. Rojas has indicated to me that it is your intent now to admit the prior convictions that are alleged within the amended counts one and two, and what that means is that you would be waiving your right to require the district attorney to prove those to the jury. By admitting those, the district attorney is not being required to prove those to the jury. However, on the other hand, the jury will not hear about those prior convictions. So do you understand that, sir? [p] [APPELLANT]: Yes, I do. [p] THE COURT: And so you understand by admitting the prior convictions alleged in count one and two the only right you would be giving up would be requiring the district attorney to prove those to the jury panel? [p] [APPELLANT]: Yes, I do. [p] THE COURT: And you are prepared to give up that right and to admit each of the prior...