PEOPLE v. WARD

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

PEOPLE of the State of California, Plaintiff and Respondent, v. Bobby WARD, Defendant and Appellant.

AO30027.

Decided: August 27, 1986

John K. Van de Kamp, Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for plaintiff and respondent. Jay E. Goodman, San Francisco, for defendant and appellant.

Defendant Bobby Ward (hereafter Ward ) was charged by an information with motor vehicle theft as proscribed by Vehicle Code section 10851, and with possession of stolen property (Pen. Code, § 496).   The information also alleged that he had suffered three prior felony convictions.   A jury was waived, and the cause was submitted for decision by the superior court on the transcript of Ward's preliminary examination, and such additional witnesses as either party might wish to produce.   The court found Ward guilty of the Vehicle Code automobile theft charge, and that he had suffered the prior convictions with prison terms therefor.   Judgment was entered under which he was sentenced to state prison for four years.

The appeal before us is from the judgment.

We affirm the judgment for the reasons we now state.

The several appellate contentions are considered as stated by Ward.

I. Contention:  “Insufficient evidence was presented to sustain the conviction of violating Vehicle Code § 10851 against appellant.”

 The “test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the [guilt is proved] beyond a reasonable doubt․”  (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738;  our emphasis.)  “Evidence, to be ‘substantial’ must be of ponderable legal significance ․ reasonable in nature, credible, and of solid value.”  (People v. Johnson, supra, 26 Cal.3d p. 576, 162 Cal.Rptr. 431, 606 P.2d 738;  Estate of Teed (1952) 112 Cal.App.2d 638, 644, 247 P.2d 54.)   And when a jury's verdict is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the finding of fact, and when two or more inferences can reasonably be deduced from the evidence, a reviewing court is without power to substitute its deductions for those of the jury.   It is of no consequence that the jury, believing other evidence or drawing different inferences, might have reached a contrary conclusion.  (Grainger v. Antoyan (1957) 48 Cal.2d 805, 807, 313 P.2d 848;  and see People v. Johnson, supra, 26 Cal.3d 557, 576–577, 162 Cal.Rptr. 431, 606 P.2d 738.)

We state the trial's evidence as it was found true by the superior court.

A black Cadillac automobile with license plates numbered WKA 512 was parked one morning on a street in Salinas, California.   Its owner had not given Ward, or anyone, permission to take or drive it.   About 8:30 o'clock on the same morning, Ward, a black man, was released from confinement in the nearby California State Prison at Soledad, and driven to Salinas.   And when the Cadillac's owner returned to where she had parked it, the vehicle was not there.   The car was reported stolen to the police.   Later on the same day, a citizen who knew the Cadillac's owner and was familiar with the vehicle, observed a black man driving it, bumping into another automobile, and driving away.

Nine days later an Oakland police officer, with a list of reported stolen automobiles, and remembering that a black Cadillac was so listed, observed such a vehicle parked in the yard of a business establishment.   He drove by, checked his information, and upon returning noted that the black Cadillac had the stolen car's license number, WKA 512.   Defendant Ward was in the driver's seat and the car was “backing around.”   Ward was then arrested for the crime of which he was later convicted.

The evidence we have related was manifestly substantial evidence of Ward's guilt.

II. Contention:  “Because the lower court erred under Bunnell v. Superior Court (1975) 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086, the judgment must be reversed with directions to allow appellant to withdraw his slow plea if he so chooses.”

 The “slow plea” of the contention was Ward's agreement to submit the question of his guilt, for decision by the court, on the transcript of his preliminary examination.   It was in the nature of a plea bargain for a condition was that if found guilty, “the maximum punishment would be the middle term of two years and two additional years for two of the three priors that are presently charged in the information for a total of four years.”

Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 531 P.2d 1086, requires that upon such a “slow plea,” as upon a guilty plea:  “[T]he record shall reflect that he [the defendant] has been advised of his right to a jury trial, to confront and cross-examine witnesses, and against self-incrimination.   It shall also demonstrate that he understands the nature of the charges.   Express waivers of the enumerated constitutional rights shall appear.”

Here, Ward was properly advised as to each of those concepts, except one.   The exception was the trial court's inadvertent failure to advise him of his right against self-incrimination, and to secure an appropriate waiver.   There was thus Bunnell error.

Ward “submits that the foregoing demonstrates reversible error in that he was not advised of, nor did he expressly waive his right against self-incrimination;  because of this void, the judgment must be reversed.”

 The question remains whether the judgment must be reversed or, if instead, the harmless error rule should apply.

In People v. Mora (1984) 153 Cal.App.3d 18, 199 Cal.Rptr. 904 (hrg. den.), the appellate court was, as we are here, concerned with the trial court's failure, on a “slow plea,” to advise the defendant of “his privilege against self-incrimination,” and to secure its waiver.   The Mora court (153 Cal.3d p. 24, 199 Cal.Rptr. 904) first pointed out that:  “The Supreme Court has mandated that the record demonstrate that the defendant has expressly waived, inter alia, his privilege against self-incrimination․  (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605 [119 Cal.Rptr. 302, 531 P.2d 1086]․)  These requirements apply equally to guilty pleas and to submissions on a transcript, even where, in the latter case, the defendant contests his guilt by presenting additional evidence.  (Bunnell v. Superior Court, supra, 13 Cal.3d at p. 604 [119 Cal.Rptr. 302, 531 P.2d 1086].)”

But, the Mora court then said:  “However, the trial court's failure to give these advisements in the instant case is utterly nonprejudicial․”  (153 Cal.App.3d p. 24, 199 Cal.Rptr. 904;  our emphasis.)

We interpret the Mora decision as holding that in such cases, Bunnell error may be deemed harmless where the error is “utterly nonprejudicial.”

The record before us reflects the following criminal record of Ward.

To this court it is inconceivable that Ward, with his frequent brushes with the law and jails, and prisons, and exposure to our criminal justice system, was not aware of his right against self-incrimination, and that he did not knowingly waive that right by his proposal of a “slow plea.”   We hold that the trial court's failure to give the proper advisement, and secure an appropriate waiver, was “utterly nonprejudicial.”

As in Mora (153 Cal.App.3d p. 25, 199 Cal.Rptr. 904), Ward has provided us “with no basis for a belief that had he been properly admonished” he would have acted differently.   Indeed, even now, he claims no prejudice;  he asks only that he be permitted to withdraw his “slow plea,” if he so chooses.  “[W]e are not constitutionally required” to permit “a criminal defendant [to so] juggle his constitutional rights.”  (People v. Floyd (1970) 1 Cal.3d 694, 707, 83 Cal.Rptr. 608, 464 P.2d 64, overruled on other grounds, People v. Wheeler (1978) 22 Cal.3d 258, 287, 148 Cal.Rptr. 890, 583 P.2d 748.)

We are therefore of the opinion that it is not reasonably probable that a different result would have obtained in the absence of the trial court's error (see People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243), and further, that the error was harmless under the criteria of the state's Constitution, article VI, section 13, and Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.

Moreover, it is a well-known and ordinarily applicable rule of our law that:  “Anyone who seeks on appeal to predicate a reversal of conviction on error must show that it was prejudicial.”  (People v. Archerd (1970) 3 Cal.3d 615, 643, 91 Cal.Rptr. 397, 477 P.2d 421.)

III. Contention:  “Appellant must be given an additional 82 days local conduct credit.”

 Penal Code section 2933 provides, as we and apparently Ward interpret it, that in addition to pretrial custody and conduct credits, a state prison inmate may obtain additional credit on his sentence “for performance in work assignments and performance in elementary, high school and vocational education programs.”   Such “credit is a privilege, not a right, [and] every prisoner shall have a reasonable opportunity to participate in a full-time credit qualifying assignment in a manner consistent with institutional security and available resources.”

Ward argues, based on section 2933, that upon his sentencing the trial court should have allowed him an additional 82 days of credit.   He says:  “Appellant spent substantial presentence time in custody.   At the time of pronouncement of judgment, appellant was credited with 164 days actual local custody time and 82 days local conduct credit.   Appellant contends that he should be awarded an additional 82 days conduct credit.   The reason for these additional days is equal protection of the law requires it.”

We are unpersuaded.

Upon sentencing a convicted defendant to state prison, the trial court is necessarily without knowledge whether the defendant would or could be given, or take advantage of, section 2933's privilege of “a reasonable opportunity to participate in a full-time credit qualifying assignment in a manner consistent with institutional security and available resources.”   Without such knowledge, the court would manifestly be unable to fix or order related credits.   And were the court to allow the claimed credits they might not be earned by the defendant's future prison conduct.

“[T]he equal protection clause does not require ‘Absolute equality’ ․, is not ‘a demand that a statute necessarily apply equally to persons' ․, and permits a state to ‘provide for differences so long as the result does not amount to ․ an “invidious discrimination.” ’ ”  (In re Antazo (1970) 3 Cal.3d 100, 110, 89 Cal.Rptr. 255, 473 P.2d 999;  and see People v. Jackson (1980) 28 Cal.3d 264, 286, 168 Cal.Rptr. 603, 618 P.2d 149;  and see authority in those cases collected.)

People v. Caruso (1984) 161 Cal.App.3d 13, 207 Cal.Rptr. 221, lends no aid to Ward.   That authority simply holds that section 2933 applies to postsentence prison credits allowed to encourage the rehabilitation of prisoners.   And it was expressly held (161 Cal.App.3d p. 20, 207 Cal.Rptr. 221) that section 2933 credits are not “available before sentencing.”

Here we observe neither judicial error, nor “invidious discrimination.”

The judgment is affirmed.

ELKINGTON, Associate Justice.

RACANELLI, P.J., and HOLMDAHL, J., concur.