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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Jess Delrey ADAMS, Defendant and Appellant.

No. E009916.

Decided: December 15, 1992

Donna S. Davis, Long Beach, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Rudolf Corona, Jr., Supervising Deputy Atty. Gen. and William M. Wood, Deputy Atty. Gen., for plaintiff and respondent.


The defendant appeals his convictions which occurred partly by jury verdict and partly by plea of guilty.   He contends on appeal that the court erred by failing to take complete Boykin–Tahl 1 waivers from the defendant when he stipulated that he was “out on bail” at the time some of the charges in the information were committed.   He further contends that the court erred in failing to state reasons on the record for the imposition of consecutive sentences.   Finding no prejudicial error, we affirm.


The district attorney filed an information charging the defendant in seven counts.   The first four counts were all alleged to have been committed on or about February 7, 1991, and were severed before trial from the other counts.   The three remaining counts were all alleged to have been committed on or about March 19, 1991, and were tried by jury.

The information charged the defendant:  in count one with possession of a firearm which had the serial numbers removed or altered, a violation of Penal Code section 12090 3 ;  in count two with possession of a short-barreled shotgun, a violation of section 12020, subd. (a);  in count three with possession of methamphetamine, a violation of Health and Safety Code section 11377, subd. (a);  in count four with possession of a hypodermic syringe, a violation of Business and Professions Code section 4149;  in count five with residential burglary, a violation of section 459;  in count six with the unlawful taking or driving of a vehicle, a violation of Vehicle Code section 10851;  and in count seven with receiving stolen property, a violation of section 496.   Finally, the information alleged that at the time of the commission of the offenses alleged in counts five, six and seven the defendant was released from custody prior to the judgment becoming final on a primary offense within the meaning of section 12022.1.

Prior to jury selection, the court severed the first four counts due to improper joinder.   Jury trial commenced on counts five, six and seven, and the jury found the defendant guilty of the unlawful taking or driving of a vehicle, receiving stolen property, and attempted residential burglary as a lesser included offense of the residential burglary charge.   The jury also returned findings that at the time the defendant committed all three offenses, the defendant had been released from custody pending trial on a criminal offense within the meaning of section 12022.1.

Nine days later the defendant entered pleas of guilty to all four of the previously severed counts based on an indicated sentence from the court that it would impose a total sentence of four years and eight months in state prison on all seven charges.   The court told the defendant that his potential exposure on all the charges was about eight years.   There was no plea bargain with the People, and the indicated sentence was not a “lid,” i.e., the court stated it would actually impose the four years and eight months rather than imposing a sentence of up to four years and eight months.   Immediately after the pleas were entered, the defendant was sentenced.   Probation was denied, and the defendant was sentenced to four years and eight months in state prison.   The court imposed consecutive sentences as to some of the counts in order to arrive at the indicated sentence without stating reasons on the record for imposition of consecutive sentences or expressly stating that it was relying on the court's agreement with the defendant to justify the imposition of consecutive sentences.   Additional facts will be referred to as pertinent to the issues.


A. The Boykin–Tahl advisal and waiver.

Prior to the commencement of voir dire, the defendant requested a ruling on his motion for bifurcation of the “out-on-bail” enhancement alleged pursuant to section 12022.1 so that he could discuss it with the prospective jurors during voir dire in the event of an adverse ruling.   The court denied the motion for bifurcation and indicated that the enhancement would be tried right along with the underlying charges rather than trying it after the jury had returned a verdict on the underlying charges.

Following jury empanelment and before testimony began, the attorneys proposed a stipulation regarding the enhancing allegation:  “At the time Jess Delrey Adams allegedly committed the offenses for which he is presently on trial, he was out of custody on his own recognizance, or on bail for other charges which were then pending against him.”   The following exchange then occurred:

“THE COURT:  All right.   Mr. Adams, you would have the right to have the evidence brought in relating to this, which is the documents to show that charges were filed against you and so forth, and have them actually presented to the jury.   If you enter into this stipulation, you will be waiving your right to confrontation to the extent of not having—not forcing the District Attorney to actually present the proof in open court.   Do you understand that?


“THE COURT:  Are you willing to waive your right to confrontation to—so that this stipulation can be presented to the jury, rather than it being presented in the form of normal evidence?

“THE DEFENDANT:  Yes, sir.

“THE COURT:  All right.   Also, there will be a Finding that this jury will have to make relating to you being out on bail.   And that Finding is basically incorporated in this stipulation.   So, if the stipulation is accepted by the Court and presented to the jury, this jury will almost necessarily find the out-on-bail allegation to be true against you.   Do you understand that?


“THE COURT:  Okay.   That—the enhancement for the out-on-bail allegation is two years.   Now, that cannot be imposed unless—until you are found—if and until you are found guilty of the other offense.   But, it—by admitting this, you have admitted a big part of what would have to be proved for the out-on-bail allegation.   Do you understand that?


“THE COURT:  Which means, basically, that if you are found guilty in your other case and found guilty in this case, that jury will find the out-on-bail allegation to be true, which will mean two years extra in state prison.   Do you understand that?


“THE COURT:  It is your desire, then, to enter into the stipulation;  is that correct?


“THE COURT:  There is a tactical reason for it, obviously, because that way we won't present to the jury the actual documents and bring [out] what the charges actually were.   Do you understand that?

“THE DEFENDANT:  Yes, sir.

“THE COURT:  Okay.   And it's my understanding counsel will work out a limiting instruction to tell the jurors that they are not to use this as character type of evidence against them;  is that correct?”

 The defendant contends “in effect, entering into the stipulation was equivalent to entering a guilty plea to the formal criminal charge of committing a felony while released on bail, relieving the prosecutor of his duty of proving the elements of [the out-on-bail allegation].”   He further contends that the stipulation was improper because the court did not fully advise the defendant of his right to a jury trial, his right of confrontation, and his privilege against self-incrimination as required by Boykin–Tahl, nor did he expressly waive those rights.

The defendant relies primarily on footnote nine of People v. Hall (1980) 28 Cal.3d 143, 157, 167 Cal.Rptr. 844, 616 P.2d 826, a case in which a defendant contended that it was error for the court not to allow him to stipulate to his felon status in a prosecution for the crime of felon in possession of a firearm.   In that footnote the court advised trial courts in the future to assure the record reflects an adequate advisal and waiver of constitutional rights when stipulating to the felon status in felon-in-possession-of-a-firearm cases.   The court noted that the stipulations like the one offered by the defendant in Hall share characteristics with the admission of a prior conviction alleged for enhancement purposes and with the submission for decision on the basis of a preliminary hearing transcript.   Such stipulations involve the waiver of substantial constitutional rights.

By analogy the defendant contends that before he could stipulate to his “out-on-bail” status he should have been fully advised of his constitutional rights, and the court should have taken express waivers from him of his rights.   The court, however, in footnote nine of Hall stated that “whether [the rule] may also apply to other factual stipulations the court need not, and does not, decide․”

The People respond that the decision in Hall was characterized by a later decision of the Supreme Court as dictum which has never been extended beyond the felon-in-possession-of-a-firearm cases and “has not been interpreted to require a waiver of rights with respect to ordinary evidentiary stipulations.”  (People v. Ramirez (1990) 50 Cal.3d 1158, 1184, fn. 13, 270 Cal.Rptr. 286, 791 P.2d 965.)   Further, the People contend, the court in People v. Lang (1989) 49 Cal.3d 991 at p. 1038, 264 Cal.Rptr. 386, 782 P.2d 627 stated that “[t]he requirements of Yurko [In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561] and Hall do not apply to a stipulation that is ‘not the legal equivalent of a guilty plea or other admission which necessarily would have definite penal consequences.’  [Citation.]”  The Lang court then cited with approval, but without analysis, People v. Stuckey (1988) 199 Cal.App.3d 876, 245 Cal.Rptr. 225, a case which appears to be squarely on point with the instant case.

In People v. Stuckey, supra, 199 Cal.App.3d 876, 245 Cal.Rptr. 225, a defendant was also charged with an “out-on-bail” enhancement under section 12022.1.   He also stipulated that he had been released on other criminal offenses at the time of the commission of the new charges without the benefit of a full Boykin–Tahl advisal and waiver.   The court found that the stipulation was not tantamount to an admission of the enhancing allegation which would require the full Boykin–Tahl advisal and waiver, but rather it was merely the admission of only one factual element of the allegation, in effect an evidentiary stipulation.  “The People were still required to prove the remaining elements, i.e., his guilt on the primary and secondary offenses, before the enhancement would apply.   Therefore, this stipulation did not resemble in its effect the stipulation entered into in Yurko which would automatically affect the defendant adversely upon conviction of the charge to which the enhancement was appended.   It more resembles the factual stipulations ․ which [do] not ‘lend themselves to strictures attendant to a guilty plea or its equivalent.’  [Citation.]”  (Id., 10 Cal.3d at p. 882, 112 Cal.Rptr. 513, 519 P.2d 561.)

The defendant simply contends that Stuckey was wrongly decided.   We agree.   The defendant there, as in the instant case, admitted the only fact which is the only element of the “out-on-bail” enhancement, and the allegation automatically carries a two-year consecutive term if found true.   Once a defendant has admitted the fact that he was out of custody on a pending criminal case, there is nothing left to prove except the underlying charge to which the enhancing allegation attaches.   Such an admission, which admits every element of the allegation, is more than a mere factual or evidentiary admission and is tantamount to a plea of guilty to the allegation requiring a full Boykin–Tahl advisal and waiver.  (People v. Murphy (1972) 8 Cal.3d 349, 366, 105 Cal.Rptr. 138, 503 P.2d 594.)

 The court was required to give a complete Boykin–Tahl advisal and take a waiver of the defendant's constitutional rights in the present case, but we find no prejudicial error in the failure to do so.   In People v. Howard (1992) 1 Cal.4th 1132, 5 Cal.Rptr.2d 268, 824 P.2d 1315, the Supreme Court held that the failure to fully advise and take express waivers of constitutional rights in accepting a plea or admission is judged by the federal constitutional standard.   The federal standard looks to the record to determine whether it shows the plea or admission was voluntary and intelligent under the totality of the circumstances.  (Id. at p. 1175, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)   In Howard, as in the instant case, the court advised the defendant of his right to a jury trial and confrontation but failed to advise of the privilege against self-incrimination.   The court after reviewing the record determined that the failure to advise of the privilege against self-incrimination was harmless in light of the facts of that case.

We likewise find the court's failure to advise of the privilege against self-incrimination to be harmless using the federal standard as applied to the facts of the present case.   The court told the defendant that he would be giving up the right to force the People to produce evidence to the jury to prove the allegation and that by submitting the stipulation the jury would necessarily find the allegation true.   The defendant acknowledged that he was aware of that and was willing to enter into the stipulation.   He was expressly advised of his right to confrontation, and he expressly waived that right.   He was told that the issue would be decided by the jury, and he implicitly waived that right by personally agreeing to the stipulation.   The court asked him if he wanted to enter into the stipulation which implicitly told him that he had a right not to, and he could force the People to present evidence.  (People v. Howard, supra, 1 Cal.4th 1132, 1180, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)   Tactically, there were excellent reasons for the defendant to stipulate rather than have the People prove the allegation which should have been relatively simple for the People to do through the introduction of the court records into evidence.   Those records would have revealed the nature of the charges to the jury, and the stipulation kept that information from the jury.

The record shows that while there was not an express advisal and an express waiver of all three rights under Boykin–Tahl, the defendant was fully aware of them and the consequences of his stipulation.   His agreement to the stipulation was voluntary and intelligent.   Any error in the advisal and waiver procedure was clearly harmless under the federal standard.

B. The case does not need to be remanded for resentencing.**


The judgment is affirmed.


1.   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.

2.   Since the defendant only raises questions of law on appeal, a recitation of the facts underlying the charges is irrelevant and unnecessary.   Consequently, they will be omitted.

3.   All further statutory references are to the Penal Code unless otherwise stated.

FOOTNOTE.   See footnote *, ante.

McKINSTER, Associate Justice.

HOLLENHORST, Acting P.J., and McDANIEL, J.***, concur.