PEOPLE v. HARRIS

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

The PEOPLE, Plaintiff and Respondent, v. Lloyd HARRIS, Defendant and Appellant.

No. B119787.

Decided: May 27, 1999

Terry R. Kolkey, under appointment by the Court of Appeal, Vista, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and M. Susan Sullivan, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Defendant Lloyd Harris appeals from a judgment entered after the jury convicted him of second degree robbery (Pen.Code, § 211 1) and he admitted suffering a prior serious felony conviction.   The trial court sentenced defendant to state prison for double the five-year upper term (§§ 667, subds.(b)-(i), 1170.2), and imposed a five-year enhancement for the prior conviction to run consecutive to the base term (§ 667, subd. (a)(1)), for a total term of 15 years.   We modify the judgment by striking the five-year enhancement and affirm the judgment as modified.

STATEMENT OF FACTS

At about 11:40 a.m., on May 9, 1997, Anthony Rucker (Rucker) stood near the corner of Hollywood Boulevard and Bronson Street in Los Angeles.   He watched as two men, later identified as defendant and Nathan Clinton (Clinton), approached him from across the street.   Rucker suspected nothing and turned his back on the two men.   As Rucker did so, Clinton walked up to Rucker and said, “This is what's going to happen.”   Defendant then approached Rucker from behind and shoved what Rucker believed was a nine millimeter handgun into his back.   Rucker was unsure, however, if it was an actual gun or just an object used to scare him.   Rucker surrendered his backpack.   After defendant lowered his “weapon,” he and Clinton casually walked away.   Rucker called 911 from a nearby liquor store.   He gave the dispatcher a description of defendant and Clinton.

Los Angeles Police Officer Thomas Glazebrook received a 911 broadcast regarding two suspects who had committed a robbery.   The first suspect was described as wearing a white shirt, dark pants and dark shoes and having his hair braided.   The second suspect, who was reported possibly to have used a nine millimeter handgun, was described as wearing a black and white checked shirt, dark pants, white shoes and a baseball cap.   After searching for about 15 minutes, Officer Glazebrook located defendant and Clinton on Carlton Way near St. Andrews Place about six blocks from the robbery site and detained them.   Defendant was carrying a back pack and a black and white checked shirt.   Clinton's hair was braided.   Neither suspect was carrying a gun.

Los Angeles Police Officer Guillermo Campos, who had gone to Rucker's residence to obtain a report, learned that defendant and Clinton were in custody near the intersection of Carlton and St. Andrews.   Officer Campos drove Rucker there to conduct a field showup.   From inside the police vehicle, Rucker identified Clinton as the person who had been in front of him during the robbery and who had taken his backpack.   Rucker did not immediately recognize defendant because defendant was wearing a T-shirt and had turned his baseball cap around.   After Officer Glazebrook adjusted defendant's cap, Rucker identified defendant as the person who had approached him from behind during the robbery.2  Rucker also saw his backpack.   After looking inside, Rucker noticed that a jazz CD, keys and two money orders were missing.   Upon searching defendant, Officer Glazebrook found Rucker's CD in defendant's pants pocket.

Following his arrest, Clinton denied committing the robbery.   He later pled guilty and agreed to testify for the prosecution.   At defendant's trial, Clinton testified that he and defendant had robbed Rucker because they were short of money.   Clinton did not know whether defendant had used a gun during the robbery.

Defense

Edward Wright testified that defendant was a good friend who had been living with him in his apartment on Carlton Way for about three months.   At 11:10 a.m. on May 9, 1997, Wright telephoned his apartment from work and spoke to defendant.   When Wright called later in the afternoon, no one answered.

Defendant's mother and father confirmed that defendant was living in an apartment on Carlton Way on May 9th.   Defendant's mother, Nicole Foston, testified that she sent defendant money by Western Union almost daily and paid the telephone bill at the apartment.

CONTENTIONS

I

Defendant contends the finding that he was previously convicted of a serious felony must be set aside because (1) he did not waive his constitutional rights;  (2) he did not personally admit his prior robbery conviction;  and (3) he was not advised of the direct consequences of his admission.

II

Defendant asserts the trial court improperly calculated his pre-sentence custody credits.

DISCUSSION

I

Defendant contends the finding that he was previously convicted of a serious felony must be set aside because (1) he did not waive his constitutional rights;  (2) he did not personally admit his prior robbery conviction;  and (3) he was not advised of the direct consequences of his admission.   The contention lacks merit.

 For an admission of a prior conviction to be valid, a defendant must be advised of and waive his constitutional rights to a jury trial and to confront witnesses against him, as well as his privilege against self-incrimination.  (People v. Adams (1993) 6 Cal.4th 570, 576, 24 Cal.Rptr.2d 831, 862 P.2d 831;  People v. Howard (1992) 1 Cal.4th 1132, 1176-1177, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)   This ensures the admission is voluntary and intelligent, as required by the federal Constitution.  (Id. at p. 1175, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)   If specific advisements are not given and waivers are not taken, the admission nevertheless may be considered valid “if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.”  (Ibid.;  People v. Randle (1992) 8 Cal.App.4th 1023, 1034, 10 Cal.Rptr.2d 804.)

After the jury returned its verdict, but before the jury was brought into the courtroom, the trial court asked defense counsel how he wished to proceed on the issue of prior conviction allegations.   Defense counsel replied, “There's going to be an admission.”   The following then transpired:

“THE COURT:  Okay. [¶] Mr. Harris, I don't know what the jury is going to do.   If you admit the prior conviction and then they acquit you, it's of no consequence to you because it only serves to enhance your punishment if you're convicted.   If you're not convicted, then this means nothing.

“THE DEFENDANT:  Right.

“THE COURT:  But if the jury does convict you, you have a right to have this same jury decide whether or not you've previously been convicted of robbery.  [¶] Do you understand that?

“THE DEFENDANT:  Yes.

“THE COURT:  And if you had this jury decide whether you had been previously convicted of robbery, all 12 of them would have to agree beyond a reasonable doubt that you were previously convicted of robbery.  [¶] Do you understand that?

“THE DEFENDANT:  Yes.

“THE COURT:  You also have the right to confront and cross-examine the witnesses against you at that trial, which means to be here when the witnesses testify about the prior conviction and have your lawyer ask them questions about that.  [¶] Do you understand that?

“THE DEFENDANT:  Yes.

“THE COURT:  And the privilege against self-incrimination, which means that you don't have to say anything that helps to prove the prior conviction is true;  and when you admit the prior conviction, you're giving up your privilege against self-incrimination with respect to the prior conviction.  [¶] Do you understand that?

“THE DEFENDANT:  Yes.

“THE COURT:  Do you give up all of those rights and admit that you were in fact previously convicted of robbery in case number PA006458 on January the 23rd of 1992 within the meaning of Penal Code sections 1170.2(a) [sic ] through (d) and 667(b) through (i)?   Do you admit the prior conviction? [ 3 ]

“[DEFENSE COUNSEL]:  In the San Fernando Court, second degree robbery.   That's what the abstract shows, your Honor.

“THE COURT:  If that's what the abstract shows.   It doesn't say - I'm reading the information and it doesn't say San Fernando court.   It just gives the case number.

“[DEFENSE COUNSEL]:  Look at the abstract close to the end.

“THE COURT:  I got it.   Yes. It was in Department F in San Fernando and it was second degree robbery.  [¶] Do you understand that?

“THE DEFENDANT:  Yes, I do.

“THE COURT:  And do you join in the waiver and concur in the admission, Mr. Maginnis?

“[DEFENSE COUNSEL]:  Yes, I do, your Honor.

“THE COURT:  All right.  [¶] Then we will bring in the jury and take the verdict and then discharge them.”

This exchange discloses that, although defendant was advised of and understood his constitutional rights, he did not expressly waive them or admit his prior robbery conviction.4  It is equally apparent, however, that defendant intended to waive his rights and admit his prior conviction but did not expressly do so as the result of his counsel's interruption.   Just after the trial court had asked defendant the critical question whether he waived his rights and admitted his prior conviction, but before defendant could answer, defense counsel interrupted in an attempt to clarify the court's description of the conviction.   After some discussion, defendant acknowledged that he understood he was being asked about a second degree robbery conviction incurred in the San Fernando Valley.   In response to the court's inquiry, defense counsel joined in the waivers and concurred in the admission, obviously believing defendant had expressly waived his rights and admitted the prior.   The court held a similar belief, stating, “[t]hen we will bring in the jury and take the verdict and then discharge them.”   Indeed, after the jury's guilty verdict was read and the jury was polled, the trial court informed the jury that its services were concluded.   It then thanked and excused the jury, which left the courtroom.

 These circumstances leave no doubt that defendant intended to waive his rights and admit his prior conviction and that the trial court, prosecutor, defense counsel, and defendant believed that had transpired.   Defendant did not object when the jury was dismissed and, during sentencing, he did not object to the trial court's imposition of sentencing enhancements made applicable by his purported admission.   In fact, at the sentencing hearing, defendant mentioned his prior robbery conviction and admitted that he “[m]essed up in the past.”   Under the totality of the circumstances, we conclude that defendant intended to, and in fact did, voluntarily and intelligently waive his constitutional rights and admit his prior robbery conviction.  (But see People v. Torres (1996) 43 Cal.App.4th 1073, 1082, 51 Cal.Rptr.2d 77.)   However, the five-year consecutive enhancement imposed pursuant to Penal Code section 667, subdivision (a) must be stricken because the trial court never asked defendant to, and defendant did not, admit that he suffered a prior serious felony conviction within the meaning of that subdivision.

 Defendant also challenges the validity of his admission on the ground that the trial court failed to advise him of the penal consequences of admitting his prior robbery conviction, including his ineligibility for probation.  “[U]nlike the admonition required for a waiver of constitutional rights, advisement of the penal consequences of admitting a prior conviction is not constitutionally mandated.   Rather, it is a judicially declared rule of criminal procedure.  [Citations.]”  (People v. Wrice (1995) 38 Cal.App.4th 767, 770, 45 Cal.Rptr.2d 193.)   The failure to advise a defendant of the consequences of an admission is an error that requires the admission to be set aside only if the error is prejudicial to the defendant.   In order to demonstrate prejudice, defendant must show it is reasonably probably that he would not have made the admission if he had been advised properly of the consequences of doing so.  (People v. Walker (1991) 54 Cal.3d 1013, 1022-1023, 1 Cal.Rptr.2d 902, 819 P.2d 861.)   Defendant has failed to make the required showing.

 The trial court's failure to advise defendant expressly of the penal consequences of his admission must be deemed harmless error because the record shows that defendant was, in fact, aware of those consequences.   Before advising defendant of his constitutional rights, the trial court told defendant that if he admitted the truth of his prior robbery conviction, and if the jury convicted him, his sentence would be enhanced.   To this admonishment, defendant replied, “Right.”   Although the trial court did not expressly tell defendant that he would receive a mandatory five-year enhancement under section 667, subdivision (a)(1), and that the base term would be doubled pursuant to section 1170.12 and section 667, subdivisions (b) through (i), defendant was advised that he would face more time in prison as the result of his admission.   In addition, during the sentencing hearing, the prosecutor reminded the court that prior to trial, the People had offered defendant the minimum a defendant could get on a second strike, nine years without the gun use allegation, which consisted of double the two-year low term plus a five-year enhancement.   Thus, defendant was well aware of the penal consequences of his admission.

Defendant also knew that probation would not be an option for him if he was convicted.   The trial court's advisement that defendant's sentence would be enhanced as the result of his admission necessarily implied that he was not going to be placed on probation if convicted.   Moreover, at a pretrial hearing held on September 25, 1997, defense counsel stated that defendant had been willing to take an offer that had been made if he received 50 percent sentence reduction credit, but rejected the offer after “[h]e read the code section which requires 85 percent of the time.”   Finally, on October 30, 1997, before the prospective jurors were brought into the courtroom, the trial court noted that defendant had been offered 10 years with 50 percent sentence reduction credit because the victim had not been present that morning.   Now that the witness was present, however, the offer had been withdrawn.   The trial court then stated that the prosecution's prior offer of 10 years with a minimum 80 percent of that term to be served was still available.   Defendant rejected that offer.   At the sentencing hearing, defense counsel urged the court to grant defendant's motion for new trial or in the alternative “reduce the charge to something less than robbery such as grand theft to make the defendant eligible for probation in this case.”   This reinforces the conclusion that defendant knew he was ineligible for probation.   In short, defendant suffered no prejudice from the trial court's failure to advise him expressly of the penal consequences attending his admission.

II

Defendant contends the trial court improperly calculated his pre-sentence custody credits.   The People disagree, maintaining that the credits were properly calculated.  “The most expeditious and ․ appropriate method of correction of errors of this kind is to move for correction in the trial court.   It is the obligation of the superior court, under [Penal Code] section 2900.5, to calculate the number of credit days and include the same in the abstract of judgment (§ 2900.5, subd. (d)).  If a dispute arises as to the correct calculation of credit days, such should be presented on noticed motion ‘for resolution to the court which imposed the sentence and which has ready access to the information necessary to resolve the dispute.’  [Citation.]”  (People v. Fares (1993) 16 Cal.App.4th 954, 958, 20 Cal.Rptr.2d 314;  accord, People v. Salazar (1994) 29 Cal.App.4th 1550, 1557, 35 Cal.Rptr.2d 221;  People v. Robinson (1994) 25 Cal.App.4th 1256, 1258, 31 Cal.Rptr.2d 445;  People v. Culpepper (1994) 24 Cal.App.4th 1134, 1138-1139, 29 Cal.Rptr.2d 719;  People v. Little (1993) 19 Cal.App.4th 449, 451-452, 23 Cal.Rptr.2d 394.)

Parole Revocation Fine

 The People ask this court to modify the judgment to impose a mandatory and separate $200 parole revocation fine pursuant to section 1202.45.   Although it is in our power to correct such an omission on appeal, as is our practice, we decline to do so, for the People failed to raise the issue below.  (See, e.g., People v. Bolden (1999) 71 Cal.App.4th 730, 743, 84 Cal.Rptr.2d 111.)

It is primarily the responsibility of the sentencing court, and of the prosecutor, to ensure that a correct, lawful sentence is imposed.   The prosecutor must take care to request explicitly all particulars of appropriate relief at the sentencing hearing, to monitor the abstract of judgment to make sure the sentence is recorded accurately and completely, and, where it is not, to request the trial court to correct the error.   We imagine that part of the problem can be traced to the abstract of judgment form provided to the trial court, which lacks specific reference to the types of fines, fees and assessments that the court may be called upon to impose.  (See People v. Hong (1998) 64 Cal.App.4th 1071, 76 Cal.Rptr.2d 23.)   Were we to continue to modify judgments and thereby fill the void created by these types of omissions, however, we fear that our actions might serve to perpetuate further the problem rather than to alleviate it.   Accordingly, we decline to address these issues.

We foresee no grave consequences of a refusal to correct judgments at the appellate level.   We say this because, to the extent an omission results in an unauthorized sentence, it may be corrected at any time.  (People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040;  People v. Serrato (1973) 9 Cal.3d 753, 763-765, 109 Cal.Rptr. 65, 512 P.2d 289, overruled on another point in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1, 189 Cal.Rptr. 855, 659 P.2d 1144.) The People are quite capable of bringing a jurisdictional omission to the attention of the trial court.   We are confident that, when brought to its attention, the trial court will faithfully perform its duty to ensure that a proper judgment has been rendered.

The judgment is modified by striking the five-year enhancement imposed pursuant to section 667, subdivision (a)(1).   As so modified, the judgment is affirmed.   The clerk of the superior court is directed to prepare a modified abstract of judgment and forward a copy to the Department of Corrections.

FOOTNOTES

FN1. All statutory references herein are to the Penal Code..  FN1. All statutory references herein are to the Penal Code.

2.   At trial, Rucker could not initially identify defendant.   After some thought, he was able to do so.

3.   The trial court failed to mention section 667, subdivision (a).   Yet, it imposed the enhancement mandated by that provision, namely, a five-year enhancement to be served consecutively to the base term.

4.   Although the trial court's minutes of November 4, 1997 state that “Defendant admits prior as in Case # PA006458 pursuant to 1170.12(a)-(d) and 667(b)-(i) Penal Codes as charged in count 1 of the information,” the Reporter's Transcript shows that no express admission was made.   Because the Reporter's Transcript is entitled to greater credence under the circumstances of this case, we deem it controlling.  (See, e.g., People v. Smith (1983) 33 Cal.3d 596, 599, 189 Cal.Rptr. 862, 659 P.2d 1152;  People v. Ritchie (1971) 17 Cal.App.3d 1098, 1103, 95 Cal.Rptr. 462.)

SPENCER, P.J.

MIRIAM A. VOGEL, J., and MASTERSON, J., concur.

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