PEOPLE v. NEWMAN

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

The PEOPLE, Plaintiff and Respondent, v. William NEWMAN, Defendant and Appellant.

No. B114086.

Decided: June 30, 1998

Tracy J. Dressner, under appointment by the Court of Appeal, La Crescenta, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, John R. Gorey and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.

We conclude a stipulation to a prior conviction was invalid without an admonition of rights and waiver thereof.   We reverse the judgment.

As police in an unmarked car watched, defendant rode his bicycle in a manner that caused a car to veer over the center line in order to keep from hitting him.   The officers activated a red light and, using the PA (public address) system, told defendant to stop.   He looked at them and kept going.   They repeated the command.   Defendant ran into a curb and fell off his bicycle.   As he fell, he dropped a loaded hand gun.

Defendant had suffered several prior convictions, including a 1974 murder conviction.   The prosecutor charged him with being a felon in possession of a firearm.  (Pen.Code, § 12021, subd. (a)(1).) 1

There were two separate proceedings involving prior convictions.   At the first, defendant stipulated, in front of the jury, to having “been previously convicted of a felony.”   This was for purposes of section 12021, which elevates a misdemeanor to a felony if the person unlawfully possessing a firearm has suffered a prior felony conviction.   The felony to which defendant stipulated was not specified.   Defendant was advised of no rights.   No waivers were taken.   This proceeding is the subject of the appeal.2

After the jury verdict, defendant entered an admission to six prior felony convictions.   This second procedure is not contested on appeal.   The trial court sent defendant to prison for 25 years to life.

DISCUSSION

Defendant says the stipulation was invalid in that he should have been advised of and waived his constitutional rights as a prerequisite to establishment of the prior conviction.

In order to resolve the issue, we must reconcile several decisions by the California Supreme Court.

In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561, involved former section 644, the old “habitual offender” statute, since repealed.   The defendant admitted three prior convictions.   The jury convicted him of burglary.   This resulted in a life sentence.  Yurko established that “before a court accepts an accused's admission that he has suffered prior felony convictions, [he must be given] express and specific admonitions as to the constitutional rights waived by an admission.”  (Id. at p. 863, 112 Cal.Rptr. 513, 519 P.2d 561.)   The Yurko court went on to impose additional requirements, including that “an accused, prior to the time the court accepts his admission of an allegation of a prior criminal conviction or convictions, is entitled to be advised ․ of the precise increase in the term or terms which might be imposed, if any, in the accused's case pursuant to section 644 or other applicable statutes (see, e.g., §§ 666, 667[.])”  (Id. at p. 864, 112 Cal.Rptr. 513, 519 P.2d 561.)

Section 666 elevates a misdemeanor theft to a felony if the thief has suffered a prior theft-related conviction and served time therefor.   It is thus similar to section 12021.   In offering section 666 as an example of an “other applicable statute,” Yurko can be read to apply equally to section 12021.  (In re Yurko, supra, 10 Cal.3d at p. 864, 112 Cal.Rptr. 513, 519 P.2d 561.)  Yurko holds broadly that one cannot properly admit a prior conviction without being advised of the rights abandoned by the action and the consequences thereof.

In 1980, the Supreme Court dealt with a violation of section 12021.   The issue was whether the defendant could, by stipulating to its truth, keep from the jury the fact of his prior conviction.   The court held that “element ․ may not be given to a jury if the accused stipulates to it ․ unless the state can clearly demonstrate that [the] application [of this rule] will legitimately impair the prosecutor's case or preclude presentation of alternate theories of guilt.”  (People v. Hall (1980) 28 Cal.3d 143, 156, 167 Cal.Rptr. 844, 616 P.2d 826, fn. omitted, superseded by statute in People v. Valentine (1986) 42 Cal.3d 170, 173, 228 Cal.Rptr. 25, 720 P.2d 913, and disapproved on other grounds in People v. Bouzas (1991) 53 Cal.3d 467, 476, 279 Cal.Rptr. 847, 807 P.2d 1076 [both discussed below].)

In a lengthy footnote, the Supreme Court noted “that a stipulation such as the one offered here shares several key characteristics with the admission of a prior conviction alleged for enhancement purposes [citing Yurko ], and with the submission of a case for decision on the basis of a preliminary hearing transcript with reservation of the rights to testify, to present additional evidence, and to cross-examine witnesses.  [Citation.]   Such a stipulation relieves the prosecution of the burden of proving the existence of a valid prior conviction beyond a reasonable doubt.  [Citing Yurko.]   It involves the partial waiver of significant constitutional rights.  [Citing Yurko.]”   (People v. Hall, supra, 28 Cal.3d at p. 157, fn. 9, 167 Cal.Rptr. 844, 616 P.2d 826.) The court went on to state that “trial courts in the future would be well-advised to assure the record adequately reflects the fact that a defendant is advised of any constitutional rights waived when stipulating to the status of an ex-felon.”  (Ibid.)

The Hall footnote makes it plain that Yurko applies to a violation of section 12021.   Reading the two cases together establishes that before a defendant can admit or stipulate to a prior conviction which elevates a misdemeanor to a felony, he must be given the Boykin-Tahl 3 admonitions and waive those rights.

“Proposition 8, adopted by the voters in 1982, added article I, section 28 to the California Constitution․  [¶] [The Supreme Court] granted hearing ․ to confront the second sentence of section 28(f):  ‘When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.’   Defendant and the People agree that this language is directed at People v. Hall [, supra,] 28 Cal.3d 143 [167 Cal.Rptr. 844, 616 P.2d 826]․”  (People v. Valentine, supra, 42 Cal.3d at pp. 172-173, 228 Cal.Rptr. 25, 720 P.2d 913.)  “It seems obvious that the second sentence of section 28(f) was aimed squarely at Hall.” (Id. at p. 176, 228 Cal.Rptr. 25, 720 P.2d 913.)

Respondent argues this means Hall has been abrogated and overruled.   Certainly this is so as to Hall's holding that a defendant can keep a prior conviction in a section 12021 case from the jury by stipulating to it.   However, we do not see how the language in Valentine can be read as a repudiation of Hall's footnote 9. Proposition 8 did not deal with Boykin-Tahl requirements.   And, as discussed below, the Supreme Court has subsequently discussed Hall without specifically disapproving of the concept set forth in footnote 9.

In People v. Bouzas, supra, 53 Cal.3d 467, 279 Cal.Rptr. 847, 807 P.2d 1076, the Supreme Court “granted review to resolve a split of authority in the Courts of Appeal concerning whether a defendant charged under ․ section 666 ․ may stipulate to a prior felony conviction allegation and thus preclude the jury from learning of that conviction.”  (Id. at p. 469, 279 Cal.Rptr. 847, 807 P.2d 1076, fn. omitted.)   The court concluded a defendant may do so, since the prior conviction is not an element of the current offense.  “ ‘[I]f the former conviction is an element of the offense for which the defendant is being tried, as in a prosecution under section 12021 ․, which makes it a felony for an exconvict to be in possession of a firearm, the prior conviction, as well as the possession of the firearm, must be proved and determined by the court or jury․’ ”  (Id. at p. 472, 279 Cal.Rptr. 847, 807 P.2d 1076.)   “[T]he prior conviction and incarceration requirement of section 666 is a sentencing factor for the trial court and not an ‘element’ of the section 666 ‘offense’․”  (Id. at p. 480, 279 Cal.Rptr. 847, 807 P.2d 1076.)

We thus have Bouzas holding that while the prior conviction and incarceration aspect of section 666 is merely a sentencing factor, the prior conviction requirement for section 12021 is an element of the offense.   Indeed, the court so held even while recognizing it had earlier said in Hall “ ‘that the willingness of a defendant to admit a prior felony conviction in the context of a section 12021 trial is logically indistinguishable from cases permitting an accused to admit a prior petty theft while on trial for felony petty theft with a prior conviction (see § 666)․  A valid distinction cannot be drawn between the felony petty theft situation and the present case [§ 12021].   In each instance, the prior is an essential component of the felony․’  [Citation.]”  (People v. Bouzas, supra, 53 Cal.3d at p. 476, 279 Cal.Rptr. 847, 807 P.2d 1076.)   In any event, Bouzas said nothing about whether there was any meaningful distinction between a “ stipulation” and an “admission” with reference to a prior.   The court did not discuss whether Boykin-Tahl admonitions and waivers were required in either event.

The Bouzas court went on to reject its dictum in Hall that the prior conviction in a section 666 case is an element of the charge.   It also backed away from its Hall language that “there exists no ‘logical’ basis to treat differently ․ section 666 and ․ section 12021” with reference to the prior conviction requirement.  (People v. Bouzas, supra, 53 Cal.3d at p. 479, 279 Cal.Rptr. 847, 807 P.2d 1076.)   Instead, it commented that “the basis for the distinction has been long recognized in the jurisprudence of this state.”  (Ibid.)

But Bouzas did not specifically overrule Hall or disapprove any other part of it, including footnote 9. As we read Bouzas, it left that portion of Hall intact.

We move on to the Adams case, which dealt with yet another criminal statute.  “[S]ection 12022.1 permits the imposition of an additional two-year term (enhancement) to be served consecutively to the term being imposed for a criminal offense (secondary offense), and for consecutive service of the secondary offense term, if the defendant committed the secondary offense while on bail or own recognizance release pending trial or appeal on another charge (primary offense).”  (People v. Adams (1993) 6 Cal.4th 570, 572, 24 Cal.Rptr.2d 831, 862 P.2d 831, fns. omitted.)   The Adams court held that Boykin-Tahl admonitions and waivers are not necessary when a defendant stipulates to the fact that he was out on bail when the secondary offense was alleged to have been committed.

The court distinguished a 12022.1 enhancement:  “An admission or stipulation of facts alleged in most enhancement allegations will lead to imposition of increased punishment on conviction of the underlying offense.   The enhancement provided by section 12022.1 differs, however, since the enhancement is not applicable if the defendant is not convicted of the primary offense.   Unless he stipulates both to the bail/own recognizance element of the enhancement and that he is guilty of or has been convicted of the primary offense, his stipulation to the former will not necessarily lead to imposition of the enhanced penalties authorized by section 12022.1.”   (People v. Adams, supra, 6 Cal.4th at p. 580, 24 Cal.Rptr.2d 831, 862 P.2d 831, fn. omitted, italics added.)

The Adams court discussed Yurko:  “[There], we recognized that guilt of a substantive crime was not at stake, but reasoned that ‘the practical aspects of a finding of prior convictions may well impose upon a defendant additional penalties and sanctions which may be even more severe than those imposed upon a finding of guilty without the defendant having suffered the prior convictions.’  [Citation.]   Since the Legislature had provided for a trial on allegations of prior convictions, thereby giving the defendant a right to jury trial and proof beyond a reasonable doubt, we accepted the petitioner's argument that the procedure leading to imposition of the added penalties was protected by specific constitutional provisions which could not be waived unless the defendant had knowledge of the rights and understood the impact of his plea on those rights.

“ ‘Because of the significant rights at stake in obtaining an admission of the truth of allegations of prior convictions, which rights are often of the same magnitude as in the case of a plea of guilty, courts must exercise a comparable solicitude in extracting an admission of the truth of alleged prior convictions.   Although the issue was not before the Supreme Court in Boykin nor before us in Tahl, it is nevertheless manifest that an accused is entitled to be advised of those constitutional rights waived by him in making such an admission.   As an accused is entitled to a trial on the factual issues raised by a denial of the allegation of prior convictions, an admission of the truth of the allegation necessitates a waiver of the same constitutional rights as in the case of a plea of guilty.’  [Citing Yurko.]”  (People v. Adams, supra, 6 Cal.4th at p. 577, 24 Cal.Rptr.2d 831, 862 P.2d 831.)

The net result of all this is that a defendant in a section 666 case can keep the prior conviction from the jury by stipulating to it.   If he is charged with a section 12021 violation (felon with a gun), a stipulation will not keep the prior conviction from the jury.   As to a section 666 case (and by analogy, as to a section 12021 case), Yurko holds an admission to the prior cannot be entered without Boykin-Tahl waivers.   Hall requires the waivers as to the prior conviction on a section 12021 case.  Bouzas, while distinguishing between priors in a section 666 and section 12021 case, says nothing about whether waivers are required, but discusses Hall, disapproving part of it but saying nothing about footnote 9. Bouzas does not mention Yurko, but, in distinguishing between section 666 and section 12021 cases, could conceivably be read as limiting Yurko to section 666 cases, although we do not so read it.   Adams says waivers are not required as to a 12022.1 stipulation because the bail aspect is not alone sufficient to establish the enhancement.   The Adams court has not backed away from Yurko, at least so far as an admission is concerned.   Indeed, the Adams court has cited Yurko's requirement of admonitions and waivers when admitting a prior conviction.   And although the Supreme Court has recognized footnote 9 in Hall as dictum (People v. Ramirez (1990) 50 Cal.3d 1158, 1184, fn. 13, 270 Cal.Rptr. 286, 791 P.2d 965), it has never repudiated it.

Adams noted the dictum in Hall's footnote 9 and pointed out that in Ramirez it had refused to apply the Hall dictum “when a defendant admits he has suffered prior convictions where the prior convictions were simply penalty phase aggravating evidence.”  (People v. Adams, supra, 6 Cal.4th at p. 578, 24 Cal.Rptr.2d 831, 862 P.2d 831.)   The Supreme Court thus passed up an opportunity to eliminate the Hall dictum.

Earlier, in People v. Wright (1990) 52 Cal.3d 367, 276 Cal.Rptr. 731, 802 P.2d 221, the Supreme Court had the opportunity to repudiate the Hall dictum, but chose instead to apply the harmless error doctrine.  (“Even if we were to assume that this dictum in Hall should properly be extended to the stipulations at issue here, reversal would not be warranted.”  (Id. at p. 407, 276 Cal.Rptr. 731, 802 P.2d 221.)

Does Yurko alone, or in combination with Hall, still require the Boykin-Tahl procedure for admission of a prior conviction in a 12021 case?   We must conclude it does.  Yurko has never been overruled and specifically required, by its use of the section as an example, the procedure as to an admission to the prior conviction in a section 666 case.   Since section 666 is merely a sentencing factor, we see no reason the procedure would not be required (as directed by Hall ) when admitting the prior conviction as the more central factor of an element of a section 12021 case.

The question becomes whether there is any practical distinction between stipulating to a prior conviction and entering an admission to it.  People v. Witcher (1995) 41 Cal.App.4th 223, 234, 48 Cal.Rptr.2d 421, for example, relying on Bouzas, has held that if a defendant charged with violating section 666 stipulates to the prior conviction, he need not be given the admonitions required for an admission.  (“[W]e are not convinced that Bouzas or any other national or state authority requires that a stipulation for section 666 purposes demands the full panoply of constitutional admonitions required to properly admit charged prior convictions.”)

We are not persuaded that Witcher is correct.   As noted above, Hall's footnote 9 flatly states that there is no practical distinction between a stipulation and an admission and says trial courts would be “well advised” to give the admonitions and take the waivers when a defendant stipulates to the prior conviction.  (People v. Hall, supra, 28 Cal.3d at p. 157, fn. 9, 167 Cal.Rptr. 844, 616 P.2d 826.) Lest there be any doubt about the continued validity of the proposition that such a stipulation is tantamount to an admission, we quote from a footnote in Adams:  “When a defendant stipulates to the existence of a fact in controversy ․, the jury is instructed that it must regard the fact as conclusively proved.  (See CALJIC No. 1.02.)   Therefore, while the jury or court must still find the allegation is true, we presume that the instruction will be followed, that the jury will consider the facts conclusively proved, and that the jury will find the allegation true.  [¶] That being the case, when the stipulation admits every element of the enhancement that is necessary to imposition of the additional penalty, for purposes of Boykin-Tahl analysis we see no meaningful distinction between an admission of the truth of an enhancement allegation and an admission of all of the elements necessary to imposition of the additional punishment authorized by the enhancement.”  (People v. Adams, supra, 6 Cal.4th at p. 580, fn. 7, 24 Cal.Rptr.2d 831, 862 P.2d 831, italics added.)

While this discussion deals with enhancements, as opposed to elements of a crime, it recognizes that there is no practical distinction between admitting such crucial material and stipulating to it.   And the discussion in no way implies that either Yurko or Hall's footnote 9 is no longer viable.

Putting all this together, we conclude that in a section 12021 case, before a defendant can admit or stipulate to any prior conviction necessary to establish the firearm possession as a felony, he must be advised of his rights and waive same per Boykin-Tahl.

Respondent points to certain language in Adams, claiming it can be construed as calling for a different result.   Immediately after citing Yurko for the proposition that admission of a prior conviction is “ ‘often of the same magnitude as in the case of a plea of guilty,’ ” so the trial court “ ‘must exercise a comparable solicitude in extracting an admission of the truth of alleged prior convictions ’ ” (People v. Adams, supra, 6 Cal.4th at p. 577, 24 Cal.Rptr.2d 831, 862 P.2d 831), the Adams court went on to state:

“In no case, however, did we hold, or even intimate, that a defendant's admission of evidentiary facts which did not admit every element necessary to conviction of an offense or to imposition of punishment on a charged enhancement, as opposed to an admission of guilt of a criminal charge or of the truth of an enhancing allegation where nothing more was prerequisite to imposition of punishment except conviction of the underlying offense, was subject to the Boykin-Tahl or Yurko requirements.4  That question was not presented.   When the question of evidentiary stipulation has been presented in other contexts, however, we have held that such admissions or stipulations need not be preceded by such advice and waiver of rights, and advice regarding the penalty consequences of the admission.”   (People v. Adams, supra, 6 Cal.4th at p. 577, 24 Cal.Rptr.2d 831, 862 P.2d 831, fn. added.)

Later in the Adams opinion, we find the following:  “When a defendant who has asserted and received his right to trial, and has waived none of his constitutional rights, elects to stipulate to one or more, but not all, of the evidentiary facts necessary to a conviction of an offense or to imposition of additional punishment on finding that an enhancement allegation is true, the concerns which prompted the Boykin holding are not present.   No Supreme Court decision in which the voluntariness of a defendant's plea was in question suggests that the court's concern in Boykin extended beyond the issues of voluntariness which arise when a defendant admits a charge and, as a result, no trial on his guilt or innocence of the charge is held.”  (People v. Adams, supra, 6 Cal.4th at p. 581, 24 Cal.Rptr.2d 831, 862 P.2d 831.)

Respondent, citing the above language, argues that defendant, “by merely stipulating he had previously been convicted of a felony, [ ] did not admit all of the elements of the charged offense.   Because no penal consequences flowed directly from his stipulation, no Boykin-Tahl-Yurko advisements were required and, consequently, [defendant's] contention fails.”

We read the quoted Adams language differently.   We keep in mind the Adams court was talking about an enhancement and we are here dealing with an element of the crime.   The court said no waivers were necessary if a defendant admitted but one aspect of an enhancement.   But, if he admits “every element necessary ․ to imposition of punishment on a charged enhancement ․ where nothing more [is] prerequisite to imposition of punishment except conviction of the underlying offense” (People v. Adams, supra, 6 Cal.4th at p. 577, 24 Cal.Rptr.2d 831, 862 P.2d 831), the Boykin-Tahl procedure must be employed.   We cannot ignore that this language comes immediately after the court reiterated, by a direct quote therefrom, that Yurko requires the Boykin-Tahl procedure when a defendant admits a prior conviction.   The Yurko defendant did not “admit everything” by admitting the prior.   The admission was inconsequential unless the jury convicted him of the current offense.   Only then did the priors come into play to classify the defendant as an habitual offender.   And Yurko made a point of not limiting the holding to the habitual offender statute.

Another problem with respondent's construction is that it could dispense with waivers if the defendant admits the prior conviction before the jury delivers a verdict on the underlying charge, and require the waivers if the admission is taken after the verdict.   A pre-verdict admission would have no penal consequence at that moment.   But an admission taken after the guilty verdict would now have direct and immediate penal consequences.

If we construe the Adams language as respondents urges, it means the Supreme Court overruled Yurko.   By our reading, however, the court merely tried to distinguish its case (commission of a crime while out on bail, with admission of only one requirement of the enhancement) from Yurko (commission of a burglary after having suffered several prior convictions, with admission of all requirements of the enhancement).

In People v. Fisk (1975) 50 Cal.App.3d 364, 123 Cal.Rptr. 414, the Court of Appeal reversed an admission that defendant had suffered two prior felony convictions.   It did so because the Boykin-Tahl procedure had not been employed.   However, it separately let stand a conviction for section 12021 purposes in spite of the fact that the prior conviction needed for that charge had been stipulated to without admonition and waiver of rights.  Fisk clearly found a substantive distinction between a stipulation and an admission.  Hall's footnote 9 cited Fisk thusly:  “It is true that the decision to stipulate to the ex-felon status is a tactical one.   The same can be said, however, of the decisions to plead guilty, to submit a case on the preliminary hearing transcript, or to admit prior convictions alleged for enhancement purposes.   Yet Boykin-Tahl protections apply to such decisions.  (But see People v. Fisk [, supra,] 50 Cal.App.3d [at p.] 371 [123 Cal.Rptr. 414].)”  (People v. Hall, supra, 28 Cal.3d at p. 157, fn. 9, 167 Cal.Rptr. 844, 616 P.2d 826.)

Respondent argues that this means Hall “left Fisk fully viable.”   As respondent points out, Hall expressly disapproved several other decisions, but not Fisk. Indeed, as respondent points out, Adams cited Fisk with approval.  (“Evidentiary stipulations have long been recognized as tactical trial decisions which counsel has discretion to make without the express authority of the client.  [Four case citations, including Fisk.]” (People v. Adams, supra, 6 Cal.4th at p. 578, 24 Cal.Rptr.2d 831, 862 P.2d 831.)

We do not see either Hall's or Adams' reference to Fisk as supportive of respondent's argument.  Hall seems to have merely pointed out that appellate courts had previously engaged in a distinction (stipulation vs. admission) that Hall now found invalid for purposes of establishing a prior conviction.  Adams cited Fisk for a proposition (counsel has certain stipulation power) that remains valid to this day.

What stands out in all this is that Yurko seems alive and well and Hall's footnote 9, although perhaps wounded, has never been killed.   Even if we were to conclude Hall had been completely overruled, we still have Yurko requiring waivers for an admission of the prior conviction in a section 666 case where, per Bouzas, the prior conviction is not even an element, but merely a sentencing factor.   We have Bouzas confirming that the prior conviction is an element of a section 12021 crime.   And we have Adams opining that there is no practical distinction between a stipulation and an admission under these circumstances.

We conclude the Boykin-Tahl procedure must be followed whenever a defendant, charged with a violation of section 12021, either admits or stipulates to the requisite prior conviction.

DISPOSITION

The judgment is reversed.   The matter is remanded for a new trial.

FOOTNOTES

1.   All further statutory references are to the Penal Code.

2.   In light of our resolution of this issue, we do not reach defendant's other claims of error.

3.   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, disapproved on other grounds in Mills v.Municipal Court (1973) 10 Cal.3d 288, 307, fn. 16, 110 Cal.Rptr. 329, 515 P.2d 273.

4.   The converse of this language is that if one is admitting the truth of an enhancing allegation, and all that is then required before punishment can be imposed is conviction of the underlying offense, the Boykin-Tahl procedure is required.

ORTEGA, Associate Justice.

SPENCER, P.J., and DUNN*, J., concur.

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