Filed 1/9/15 P. v. Valdez CA5




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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT



THE PEOPLE,                                                                                F066139

    Plaintiff and Respondent,                                                (Super. Ct. No. VCF258018)

    v.
                                                                                          OPINION
ROBERT ISRAEL VALDEZ,

    Defendant and Appellant.


         APPEAL from judgment of the Superior Court of Tulare County. Joseph A.
Kalashian, Judge.
         Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Robert Gezi and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and
Respondent.
                                                        -ooOoo-
       Following a jury trial, appellant Robert Israel Valdez was convicted of
premeditated attempted murder of Christopher Ince pursuant to Penal Code1 sections 187,
subdivision (a), and 664 (count 1); dissuading a witness from reporting a crime pursuant
to section 136.1, subdivision (b)(1) (count 2); and dissuading another witness from
reporting a crime pursuant to the same section (count 3). The jury also found true three
firearm enhancements (§ 12022.53, subds. (b), (c) & (d)) and a great bodily injury
enhancement (§ 12022.7, subd. (a)) associated with count 1, and a firearm enhancement
associated with counts 2 and 3 (§ 12022.5, subd. (a)). Prior to the commencement of
trial, Valdez admitted three prior prison term enhancements associated with all three
counts.
       For count 1, Valdez was sentenced to life in prison with the possibility of parole,
plus a consecutive term of 25 years to life for one of the firearm enhancements
(§ 12022.53, subd. (d)), plus three consecutive terms of one year each for the prior prison
term enhancements (§ 667.5, subd. (b)). The court stayed the remaining enhancements
under count 1.
       For counts 2 and 3, Valdez was sentenced to the middle term of two years, plus a
consecutive term of four years for the firearm enhancement (§ 12022.5, subd. (a)), with
the sentences on counts 2 and 3 to run concurrently with the sentence on count 1. The
court granted Valdez 462 days presentence credit for time actually served (402 days) and
local conduct (60 days).
       On appeal, Valdez raises five contentions. First, he argues he was deprived the
effective assistance of counsel because his trial attorney employed an “all or nothing”
trial strategy that was not objectively reasonable and his counsel then gave a closing
argument that omitted critical points, contained factual errors, and did not reasonably

1
       All future references are to the Penal Code unless otherwise noted.

                                             2
deliver upon a promise to identify the inconsistencies within the prosecution witnesses’
testimony. Second, he challenges the sufficiency of the evidence supporting the verdict
on count 1. Third, he argues that his admissions to the three prior prison term
enhancements were not voluntary and intelligent.
       We find these three arguments unpersuasive.
       Valdez also asserts that he is entitled to additional presentence credits for a total of
476 days of credit. Respondent concedes this point and we accept the concession.
Finally, Valdez maintains that the abstract of judgment contains clerical errors in that it
fails to show the stayed enhancements pursuant to section 12022.53, subdivisions (b) and
(c), which must be corrected. Respondent also concedes this point, which we accept.
       The judgment is modified to award Valdez a total of 476 days of presentence
credits and further modified to reflect the stayed enhancements pursuant to section
12022.53, subdivisions (b) and (c). As so modified, the judgment is affirmed.
                                           FACTS
       Valdez does not challenge the sufficiency of the evidence supporting the jury’s
verdicts in counts 2 and 3 for dissuading a witness under section 136.1, subdivision
(b)(1). As such, set forth below are those facts relevant to count 1.
       Prosecution Evidence
       At one time, Valdez and Ince were friends. On the day of the shooting, they had
known each other for about four or five years. On occasion, Valdez had stayed at the
Ince residence in Porterville.
       Ince’s wife had a medicinal marijuana card and she was growing seven marijuana
plants in the days leading up to the shooting. Multiple times before the shooting she
noticed Valdez in their backyard near the marijuana plants where he “shouldn’t have
been.” Valdez would come around at nighttime and go straight into Ince’s backyard


                                              3
without knocking on the front door. Ince’s wife told Ince about her concerns regarding
Valdez’s behavior.
       Ince also began to have doubts about Valdez after he showed up early one
morning at the Ince residence. The Ince’s were concerned that Valdez intended to steal
the marijuana, so Ince began to sleep in a tent in the backyard to protect his wife’s
garden.
       On September 20, 2011, Valdez drove to Ince’s home and spoke with Ince on his
front porch. Ince told Valdez that he was not welcome in their home anymore because
Valdez had twice tried to steal marijuana plants.
       Dillon Bowen, Brandon Bowen and Nathan Eastep were sitting outside the
neighboring residence and they witnessed part of the interaction. Another witness,
Zachary Lonero, was getting dressed inside that neighboring residence, but came outside
in time to see part of the confrontation.
       To some of the witnesses, it appeared that Valdez and Ince were arguing or
yelling. The argument appeared to be about marijuana and Dillon Bowen later told a
sheriff’s deputy that he heard Valdez claim the crop was his when he confronted Ince.
Lonero heard Ince telling Valdez to leave. The exchange between Valdez and Ince did
not last very long. Valdez cursed at Ince and walked back towards his truck.
       The witnesses varied in their testimony regarding where Valdez’s truck was
parked. Brandon Bowen testified that the truck was parked in Ince’s driveway. Eastep,
however, testified that Valdez initially pulled into Ince’s driveway but pulled away and
parked on the street before he began arguing with Ince. Dillon Bowen testified that
Valdez parked “with the truck to the curb” near the road before he argued with Ince. Ince
could not see the truck from his porch.
       At his truck, Valdez removed a rifle from behind the seat. Three of the witnesses
identified the rifle as a .22-caliber. Valdez walked back towards Ince and aimed the rifle.
                                             4
The witnesses all ran for cover once they realized that Valdez had the rifle and was
confronting Ince.
       The testimony varied regarding how close Valdez was to Ince when he aimed the
rifle. Ince testified that Valdez “approached my porch” with the rifle. Eastep saw Valdez
walking back towards Ince with the rifle but did not describe how close Valdez came to
Ince. Dillon Bowen gave the strongest indication when he testified that Valdez walked
back towards Ince and stood with the rifle “by the porch” and “on the concrete that goes
... up to the porch.” A sheriff’s deputy, however, testified that Dillon Bowen had
indicated on the day of the shooting that Valdez remained at his truck while he argued
with Ince, who remained near the front of his residence. The deputy estimated the
distance to be 40 or 50 feet from where Dillon Bowen believed Valdez to be standing
from Ince when they argued and then Valdez started firing.
       When Ince saw Valdez aim the rifle at him, he tried to jump inside his residence,
but he realized he did not have enough time. Ince testified that, “I motioned my body to
take the shot.” He further said, “I just kind of cringed up, leaned to the right so I could
take the shot in my right side, because I knew it was coming.” Valdez shot Ince one time
in the right side of his chest at approximately 12:20 p.m.
       After running for cover, most of the witnesses heard multiple shots fired. Brandon
Bowen testified that he heard “a couple” of gunshots and he told a sheriff’s deputy on the
day of the shooting that that he heard “four to five” gunshots. Dillon Bowen testified that
he heard a “few” shots and he told a deputy on the day of the shooting that Valdez fired
approximately four or five shots. Lonero told a deputy on the day of the shooting that he
heard “two to four gunshots[]” but at trial he testified to hearing only one shot.
       After shooting Ince, Valdez went back to his truck. Before leaving, Valdez
pointed his rifle at Eastep, who had returned outside and was standing between Valdez


                                              5
and Dillon Bowen with a phone to his ear. Valdez stated, “You better not be calling the
cops.” After having trouble starting the engine, Valdez drove away.
       Ince went inside his house and looked out a bedroom window to confirm Valdez
had left. After Valdez left, Ince went back outside and collapsed on or near his porch,
bleeding from his torso. The witnesses rushed to Ince’s side, and called for law
enforcement and an ambulance.
       Deputies from the Tulare County Sheriff’s Department arrived at the scene and
located a live (unfired) .22-caliber round lying on the road just off the curb in front of
Ince’s residence. The deputies, however, did not find any bullet holes in Ince’s home, on
his porch, in his door, or anywhere on his property. There was no evidence of shots fired
other than Ince’s injury. Although .22-caliber rifles generally “kick out” spent rounds,
deputies did not find any spent rounds in the area of the shooting. However, Lonero told
a deputy that he witnessed Valdez “picking up objects from the ground in front of
[Ince’s] residence” and, although he was not sure what those objects were, it “may have
been spent shell casings from the rifle that [Valdez] had fired.”
       In the hospital, Ince told a deputy that Valdez shot him, and Ince identified Valdez
from a six-pack photographic lineup. Ince also told a deputy that another person, David
Seaman, was at his house during the incident. At trial, however, Ince testified that
Seaman was not at his (Ince’s) house when the shooting occurred, but he believed
Seaman was next door at the neighboring house.
       Ince suffered a collapsed lung and required 12 days of hospitalization. The
doctors did not remove the bullet from Ince’s body over concern it would cause more
complications.
       Hours later on the day of the shooting, Ince’s uncle saw and recognized Valdez as
Valdez entered a liquor store in Strathmore. Ince’s uncle had been told earlier that
Valdez shot Ince. Valdez was grabbed and held until sheriff deputies arrived and
                                              6
apprehended him sometime after 9:00 p.m. that same day. At around midnight, deputies
located Valdez’s truck in Strathmore, searched it and found two live .22-caliber rounds.
       On the day of the shooting, Brandon Bowen, Dillon Bowen, Eastep and Lonero all
identified Valdez as the shooter in a photo lineup. At trial, Ince identified Valdez as his
shooter and three of the witnesses identified Valdez as the only person who had a gun
before shots were fired.
       Defense Evidence
       Valdez testified on his own behalf. He described Ince as a “buddy” and went to
Ince’s house in the morning on September 20, 2011, to pick up some belongings. Once
there, Ince gave him some of clothes and a jacket, but Ince told him he had to leave
because Ince’s father did not want Valdez on the property. Valdez left Ince’s house
without any argument or dispute occurring. There was no issue regarding marijuana.
Before leaving, Valdez saw Seamen at Ince’s house. Valdez also saw the witnesses at the
neighboring residence while he was at Ince’s house.
       After leaving Ince’s house, Valdez went to his sister’s house and then assisted
someone at the Farmers Market gas station in the afternoon, around 12:00 p.m. or 12:30
p.m. He was at the gas station for a “good 30-45 minutes” before he drove that same
individual to a walnut field, where the individual worked. While at the walnut field,
Valdez asked for potential employment from an individual named “Nacho”.
       After leaving the walnut field, Valdez went back to Porterville to visit a friend
whom he had not seen in a while. His friend was not home so Valdez spoke with the
friend’s girlfriend, waited for 20 minutes and left. He went back to Porterville to his
wife’s house where he talked to his brother-in-law. Valdez started to drink and smoke
marijuana. Valdez then went to Strathmore, ran out of gas, and saw Ince’s uncle in the
Strathmore Liquor Store. Valdez went inside the store to ask for help, and Ince’s uncle
and another man “assaulted” him before sheriff deputies arrived and arrested Valdez.
                                             7
       After he was taken into custody, Valdez informed sheriff deputies that he had been
at the Farmers Market gas station. He also told deputies about the walnut field and
talking to Nacho. Valdez stated that he “begged” the deputy to go to the Farmers Market
and check the surveillance to show he was not the shooter. Deputies, however, never
checked the surveillance system.
       Valdez told the jury that he did not shoot Ince. He stated that all of the witnesses
were lying about seeing him shoot Ince. He also said Ince’s wife lied about seeing him in
her marijuana plants.
                                       DISCUSSION

       I.   VALDEZ WAS NOT DEPRIVED THE EFFECTIVE ASSISTANCE OF
            COUNSEL
       Valdez contends that his convictions should be reversed and he be granted another
trial because he was deprived of the effective assistance of counsel. He argues he was
prejudiced due to “a breakdown in the adversarial process that our system counts on to
produce just results.” (Strickland v. Washington (1984) 466 U.S. 668, 696.)
       We find Valdez’s arguments to be without merit.
       A.     Standard of Review
       Under the federal and state constitutions, a criminal defendant is entitled to the
assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) The
constitutional right is a guarantee “not to some bare assistance but rather to effective
assistance.” (People v. Ledesma (1987) 43 Cal.3d 171, 215, original italics.) To prevail
on a claim of ineffective assistance of counsel, a defendant must establish two criteria:
(1) that counsel’s performance fell below an objective standard of reasonable competence
and (2) that he was thereby prejudiced. (Strickland v. Washington, supra, 466 U.S. at pp.
687-688; People v. Mayfield (1997) 14 Cal.4th 668, 783-784.) The defendant has the



                                              8
burden of showing both deficient performance and resulting prejudice. (People v. Lucas
(1995) 12 Cal.4th 415, 436.)
       Regarding the first criterion, the appellate court is to defer to counsel’s reasonable
tactical decisions, and there is a strong presumption that counsel’s conduct falls within
the range of reasonable professional assistance. (People v. Lucas, supra, 12 Cal.4th at p.
436.) An appellate court will reverse the conviction “only if the record on appeal
affirmatively discloses that counsel had no rational tactical purpose for his act or
omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581.) In conducting this review,
the appellate court considers whether the record contains any explanation for counsel’s
actions; if the record sheds no light on counsel’s actions, the claim is not cognizable
unless counsel was asked for an explanation and failed to provide one, or unless there
could be no satisfactory explanation for the actions taken. (People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266; People v. Kelly (1992) 1 Cal.4th 495, 520.)
       Regarding the second criterion, a defendant must establish a reasonable
probability that, but for counsel’s unprofessional error, the result would have been
different. (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Samayoa
(1997) 15 Cal.4th 795, 845.) A reasonable probability is “a probability sufficient to
undermine confidence in the outcome.” (Strickland v. Washington, supra, at p. 694.)
       Where a claim of ineffectiveness may be rejected due to lack of prejudice, that
course should be followed. (In re Scott (2003) 29 Cal.4th 783, 825; In re Cox (2003) 30
Cal.4th 974, 1019.)
       B.     Defense Counsel’s Trial Tactics
       Valdez contends that his own testimony about not shooting Ince did not prevent
his trial counsel from making “back-up arguments” and informing the jury that if they
rejected Valdez’s testimony there was still insufficient evidence of specific intent to kill
and insufficient evidence of premeditation. Valdez also argues that his counsel was
                                              9
ineffective because he did not request any jury instructions for lesser related offenses,
such as assault with a firearm (§ 245, subd. (a)(2)) or grossly negligent discharge of a
firearm (§ 246.3, subd. (a)).
       A failure to raise a potentially meritorious defense can deny a defendant the
effective assistance of counsel, and a crucial defense is not necessarily one that, if
presented, would result in defendant’s acquittal. (People v. Farley (1979) 90 Cal.App.3d
851, 865.) However, counsel is not necessarily incompetent for presenting a defense that
had no hope of success because “[m]any defenses are hopeless, or nearly so.” (People v.
Scott (1997) 15 Cal.4th 1188, 1215 [rejecting argument that defense counsel was
incompetent for presenting defense that had no hope of success].)
       Here, defense counsel could have reasonably decided as a matter of tactics to
fully support Valdez’s testimony, or what appellant describes as an “all or nothing” trial
strategy. Indeed, in his closing arguments, defense counsel reminded the jury that Valdez
testified he was elsewhere at the time of the shooting and counsel noted that law
enforcement failed to investigate Valdez’s alibi. Defense counsel also argued that
Seaman was present during the shooting, but Seaman was never questioned or
interviewed regarding his role. Defense counsel could have reasonably decided that to
argue in the alternative, that Valdez shot Ince but did so without intent to kill, or without
premeditation and deliberation, would simply undermine his client’s credibility.
       The trial court instructed the jury on the charged offense of attempted murder
committed with premeditation and deliberation. It also instructed the jury of the lesser
crime of attempted voluntary manslaughter—heat of passion.2




2
       The record is silent on whether defense counsel requested any jury instructions or
objected to any jury instructions.

                                             10
       Despite Valdez’s argument to the contrary, it was not unreasonable for defense
counsel to not request jury instructions on either assault with a deadly weapon (§ 245) or
negligent discharge of a firearm (§ 246.3) in light of the defense strategy that Valdez had
an alibi that law enforcement failed to investigate. Moreover, assault with a deadly
weapon and negligent discharge of a firearm are not lesser included offenses of attempted
murder, but rather lesser related offenses. (People v. Nelson (2011) 51 Cal.4th 198, 215.)
In an attempted murder case, a trial court may properly refuse to instruct a jury on assault
with a deadly weapon or negligent discharge of a firearm if the evidence is lacking.
(Ibid.) Given the evidence in this case, it is doubtful the trial court would have given jury
instructions on these lesser related offenses because there was substantial evidence (see
sec. II, post) that Valdez acted with intent to kill. (Id. at pp. 206-207, 215 [trial court
properly declined defendant’s request to instruct on assault with deadly weapon and
negligent discharge of firearm when defendant was charged with attempted murder after
firing multiple shots at police officers].)
       Although defense counsel could have raised any number of “back-up arguments”
to the jury, or asked for jury instructions on lesser related offenses, it is not the appellate
court’s role to determine if different approaches were available, but, rather, whether the
record discloses that defense counsel had no rational tactical reason for the approach he
took. (People v. Fosselman, supra, 33 Cal.3d at p. 581.) In reviewing this appellate
record, there is an explanation for defense counsel’s decision to argue the evidence
consistent with his client’s testimony and alibi. As such, it cannot be said that defense
counsel’s trial strategy resulted in ineffective assistance even though Valdez now
questions that strategy in hindsight and calls it unreasonable. (People v. Mendoza Tello,
supra, 15 Cal.4th at p. 266 [appellate court considers whether record contains any
explanation for counsel’s actions].)


                                               11
       Just as importantly, Valdez cannot establish it was reasonably probable a different
outcome would have resulted had defense counsel made “back-up arguments” or
requested jury instructions on other lesser related offenses. This was not a case with
“scant evidence” of specific intent to kill as Valdez argues. To the contrary, substantial
evidence supports the jury’s finding that Valdez acted with intent to kill. (See sec. II,
post.) The evidence of guilt was strong and the option of the lesser crime of attempted
voluntary manslaughter was presented to and rejected by the jury. In addition, the jury
was presented with, and rejected, the option of finding Valdez guilty of attempted murder
without premeditation and deliberation. As such, Valdez cannot show that he was
prejudiced by defense counsel’s actions. This is true even when the “cumulative impact”
of those actions are weighed, as Valdez urges.
       Defense counsel’s actions do not undermine confidence in the outcome of this
trial. (Strickland v. Washington, supra, 466 U.S. at p. 694.) Thus, Valdez’s convictions
will not be reversed.
       C.     Defense Counsel’s Closing Argument
       Valdez asserts that defense counsel’s closing argument was “jumbled and
confused” and a “mishmash.” He raises numerous contentions, each discussed below,
attempting to show that his counsel’s closing argument deprived him of effective
assistance of counsel because it was objectively unreasonable.
       The right to effective assistance of counsel extends to closing arguments, the
purpose of which is for counsel to sharpen and clarify the issues the jury must decide.
(Yarborough v. Gentry (2003) 540 U.S. 1, 5; Herring v. New York (1975) 422 U.S. 853,
862.) The decision of how to argue to the jury after the presentation of evidence is
inherently tactical, and judicial review of a defense attorney’s summation is highly
deferential. (Yarborough v. Gentry, supra, at p. 6; People v. Freeman (1994) 8 Cal.4th
450, 498.) Closing argument is both an art and a science, and counsel must establish as
                                             12
much credibility with the jury as possible in order to persuade them. (People v. Fairbank
(1997) 16 Cal.4th 1223, 1251.)
        To prevail on a claim that counsel’s concessions during closing argument
constituted ineffective assistance, a defendant must overcome the strong presumption that
counsel’s actions were sound trial strategy under the circumstances prevailing at trial.
(People v. Freeman, supra, 8 Cal.4th at p. 498.) Where the incriminating evidence was
strong and counsel offered some other choice in the defendant’s favor, concessions in
closing argument do not constitute ineffective assistance. (People v. Hart (1999) 20
Cal.4th 546, 631.)
        “Reversals for ineffective assistance of counsel during closing argument rarely
occur; when they do, it is due to an argument against the client which concedes guilt,
withdraws a crucial defense, or relies on an illegal defense. [Citation.]” (People v. Moore
(1988) 201 Cal.App.3d 51, 57.) But where evidence of the defendant’s guilt is
overwhelming, no prejudice is suffered. (People v. Avena (1996) 13 Cal.4th 394, 422-
423.)
               1.     Defense Counsel Neglected Legal Definitions
        Valdez argues that defense counsel neglected the legal definitions and failed to
attack the prosecution’s case in the context of the elements of the charged crimes and the
enhancements. He asserts that counsel did not identify the elements of attempted murder,
the legal definition of premeditation, or describe the elements of the other charges and
enhancements.
        As discussed above, however, defense counsel could have reasonably decided as a
matter of tactics to not emphasize the elements of attempted murder or premeditation and,
instead, support Valdez’s testimony and alibi. Indeed, in his closing arguments, defense
counsel reminded the jury that Valdez informed law enforcement he was elsewhere at the
time of the shooting and counsel noted that law enforcement failed to investigate
                                             13
Valdez’s alibi. Defense counsel also argued that Seaman was present during the shooting
but he was never questioned or interviewed. The convictions will be affirmed because
defense counsel had a rational tactical approach. (People v. Fosselman, supra, 33 Cal.3d
at p. 581.)
       Moreover, the trial court instructed the jury on the law and gave the elements of
each of the charged crimes and the enhancements, as was the court’s duty. (§§ 1093,
subd. (f), 1127.) Thus, it is not reasonably probable that a different result would have
occurred had defense counsel acted as Valdez now urges. (Strickland v. Washington,
supra, 466 U.S. at p. 694.)
              2.     Defense Counsel Misstated Certain Facts
       Valdez next asserts that defense counsel incorrectly stated certain facts during
closing argument, such as Lonero ran to assist Ince while Valdez was still present and all
of the witnesses testified that there were multiple shots fired.
       Valdez is correct that defense counsel misstated these facts during closing
argument. Lonero testified that he went to assist Ince after Valdez left. Further, Lonero
testified that it sounded to him like only a single shot was fired. In addition, Ince was not
asked, and did not testify, regarding the number of shots fired at him.
       However, these factual mistakes were not prejudicial. The trial court instructed
the jury that nothing the attorneys said in their opening statements or closing arguments
was evidence. (CALCRIM No. 222.) It is presumed that the jury followed the trial
court’s instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.) It is also presumed that
the jurors relied on their own recollections of the evidence.
       Substantial evidence established that Valdez acted with intent to kill. (See sec. II,
post.) Three of the witnesses (Dillon Bowen, Brandon Bowen and Eastep) all testified
that multiple shots were fired. Given the substantial evidence, it cannot be shown that it
was reasonably probable a different outcome would have resulted had defense counsel
                                              14
argued that Lonero testified only a single shot was fired. Likewise, it is immaterial that
defense counsel incorrectly stated Lonero ran to assist Ince while Valdez was still
present. Valdez cannot show that he was prejudiced by defense counsel’s misstatement
of these facts. (Strickland v. Washington, supra, 466 U.S. at p. 694.) This argument has
no merit.
              3.     Defense Counsel Failed to Focus on Witness Inconsistencies
       Valdez next contends that defense counsel promised to point out the
inconsistencies within the witnesses’ testimony but was then “sorely deficient.” Valdez
asserts that defense counsel focused on the counts dealing with dissuading a witness,
which was not as important as the attempted murder charge.
       Defense counsel, however, dealt with the attempted murder charge in the closing
argument. He reminded the jury that Valdez testified he was elsewhere at the time of the
shooting and noted that law enforcement failed to investigate the alibi. Defense counsel
also argued that Seaman was present during the shooting but he was never questioned or
interviewed. It cannot be said that defense counsel’s argument had no rational purpose
because the incriminating evidence was strong but counsel offered an alternative choice
in Valdez’s favor. (People v. Hart, supra, 20 Cal.4th at p. 631; People v. Fosselman,
supra, 33 Cal.3d at p. 581.)
       Further, defense counsel did point out inconsistencies in the evidence regarding
the number of shots fired. He highlighted that law enforcement found no forensic
evidence of multiple shots fired, and he questioned the veracity of the witnesses’
testimony in that regard. He also argued that Lonero’s pretrial statement that he saw
Valdez “picking up bullet casings” was not reasonable. The convictions will be affirmed
because defense counsel had a rational tactical approach in defending Valdez. (People v.
Fosselman, supra, 33 Cal.3d at p. 581.)


                                            15
              4.     Defense Counsel Confused the Victims in Counts 2 and 3
       Valdez correctly points out that defense counsel mixed up the victims in counts 2
and 3 and incorrectly told the jury that they were Brandon Bowen and Eastep. The two
victims were Dillon Bowen and Eastep. Valdez contends counsel’s actions were
objectively unreasonable.
       The trial court, however, instructed the jury that nothing the attorneys said in their
opening statements or closing arguments was evidence. (CALCRIM No. 222.) It is
presumed that the jury followed the trial court’s instructions. (People v. Holt, supra, 15
Cal.4th at p. 662.) Moreover, the trial court instructed the jury that the victims in counts
2 and 3 were “Dillon Bowen” and “Nathan Eastep” and the prosecutor explained in his
arguments that “D.B.” was Dillon Bowen and “N.E.” was Nathan Eastep. Finally, the
verdict forms listed “Dillon Bowen” as the victim of count 2 and “Nathan Eastep” as the
victim in count 3.
       It is not reasonably probable that the result would have been different had defense
counsel correctly stated these victims’ names. (Strickland v. Washington, supra, 466
U.S. at p. 694.)
              5.     Defense Counsel Did Not Accurately Define “Premeditation”
       Finally, Valdez maintains that defense counsel gave an incorrect definition of
“premeditation” when he suggested the basis for the prosecutor’s premeditation
allegation was that Valdez “kept shooting. That’s why it’s premeditated.” Valdez
contends that the law’s definition of premeditation does not equate to “adding up a
number of shots fired or blows struck” but is based on a “preexisting reflection” or
“considered beforehand as opposed to a rash impulse.” (See People v. Pride (1992) 3
Cal.4th 195, 247.)
       The trial court, however, instructed the jury on the legal definition of
“premeditation” and it is presumed the jury followed the court’s instructions. (People v.
                                             16
Holt, supra, 15 Cal.4th at p. 662.) Moreover, as discussed in sections II and III, post,
there was substantial evidence that Valdez acted with intent to kill, and with
premeditation and deliberation. Thus, Valdez cannot establish it was reasonably probable
a different outcome would have resulted had defense counsel given a hornbook definition
of “premeditation” to the jury in his closing argument, after the court defined the law.
       In viewing all of defense counsel’s actions, including his conduct during closing
argument, Valdez cannot show he was prejudiced even when the “cumulative impact” of
those actions is weighed. Defense counsel’s actions, either taken individually or
collectively, do not undermine confidence in the outcome of this trial. (Strickland v.
Washington, supra, 466 U.S. at p. 694.) Therefore, Valdez cannot establish he was
deprived of the benefit of effective assistance of counsel.

       II.   SUBSTANTIAL EVIDENCE SUPPORTS SPECIFIC INTENT TO KILL
             AND PREMEDITATION
       Valdez argues the evidence was insufficient to prove he specifically intended to
kill Ince, a necessary element of attempted murder. He maintains that he only had an
intent to scare or harass. Valdez relies on People v. Smith (2005) 37 Cal.4th 733 (Smith)
and People v. Leon (2010) 181 Cal.App.4th 452 (Leon) to support his assertion that his
due process rights were violated and his conviction for attempted murder must be
reversed.
       In addition, Valdez asserts that the evidence was insufficient to support the finding
that the attempted murder was premeditated and deliberate. He contends that there was
“scant evidence” of planning or motive to kill, and the manner of how the weapon was
fired undercuts the evidentiary sufficiency of premeditation.
       A.     Standard of Review for Substantial Evidence
       California law is well settled regarding the review for substantial evidence to
support a criminal conviction. The appellate court reviews the entire record in the light

                                             17
most favorable to the judgment to determine whether a reasonable jury could have found
the defendant guilty beyond a reasonable doubt based on “‘evidence that is reasonable,
credible, and of solid value.’” (People v. Jones (2013) 57 Cal.4th 899, 960, quoting
People v. Johnson (1980) 26 Cal.3d 557, 578.)
       In doing its review, the appellate court is not required to ask whether it believes
the trial evidence established guilt beyond a reasonable doubt. (People v. Johnson,
supra, 26 Cal.3d at p. 576.) Rather, the issue is whether any rational jury could have
found the essential elements of the crime beyond a reasonable doubt after viewing the
evidence favorably for the prosecution. (Ibid.) The appellate court is to presume the
existence of any fact the jury could have reasonably deduced from the evidence in
support of the judgment. (People v. Clark (2011) 52 Cal.4th 856, 943, citing People v.
Davis (1995) 10 Cal.4th 463, 509.)
       B.     Analysis of “Intent to Kill”
       For a defendant to be convicted of attempted murder, the prosecution must prove
that the defendant had a specific intent to kill and the defendant committed a direct but
ineffectual act toward accomplishing the intended killing. (Smith, supra, 37 Cal.4th at p.
739; see §§ 187, subd. (a), 664.) The mental state required for attempted murder is
different from that required for murder itself, which does not require the intent to kill
because implied malice--a conscious disregard for life--is sufficient. (Smith, supra, at p.
739.) As such, for Valdez to be convicted of the attempted murder of Ince, the
prosecution had to prove he acted with specific intent to kill Ince. (Ibid.)
       “[A]n intent unlawfully to kill” and “express malice” are essentially the same
concepts. (People v. Saille (1991) 54 Cal.3d 1103, 1114.) To be guilty of attempted
murder of Ince, Valdez had to harbor express malice toward him. (Smith, supra, 37
Cal.4th at p. 739, citing People v. Swain (1996) 12 Cal.4th 593, 604-605.) Express
malice requires a showing that the defendant either desired the result of death or knew to
                                             18
a substantial certainty that death would occur. (Smith, supra, at p. 739, citing People v.
Davenport (1985) 41 Cal.3d 247, 262.)
       Neither murder nor attempted murder requires proof of motive. (Smith, supra, 37
Cal.4th at p. 740.) However, “evidence of motive is often probative of intent to kill.”
(Id. at p. 741.) It is also well established that the defendant’s actions and the
circumstances of the case can be used to infer the mental state required to convict the
defendant of attempted murder. (Ibid., citing People v. Lee (1987) 43 Cal.3d 666, 679.)
       The act of firing a gun toward a victim at a close, but not point blank, range is
sufficient to support an inference of intent to kill where the shot could have inflicted a
mortal wound had the shot been on target. (Smith, supra, 37 Cal.4th at p. 741, citing
People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) The fact that a defendant may
have stopped firing after his first shot and then abandoned his efforts due to fear does not
establish he lacked the intent to kill. (Smith, supra, at p. 741.) In addition, the fact that
the victim may have lived because of the defendant’s poor marksmanship does not
establish a less culpable state of mind. (Ibid.)
       Here, Ince’s testimony alone provides substantial evidence to support the jury’s
verdict that Valdez acted with intent to kill. Ince testified that Valdez approached the
porch with the rifle and then pointed it at him. Valdez then fired and struck Ince in the
right side of his chest. Valdez’s actions imply intent to kill because he aimed his rifle at
Ince’s upper body and fired. Had Valdez’s shot been on target, the shot could have
inflicted a mortal wound. The fact that Ince may have lived due to Valdez’s poor
marksmanship does not establish a less culpable state of mind. Valdez’s actions display
an express malice because it can be reasonably inferred that he either desired Ince’s death
or knew to a substantial certainty that death would occur when he aimed the rifle at Ince’s
torso and fired. (Smith, supra, 37 Cal. 4th at p. 739.)


                                              19
       Valdez argues that only one shot was fired so that, under the totality of the
evidence, Valdez could not have had a specific intent to kill. Valdez points to Ince’s and
Lonero’s testimony, and to the lack of evidence at the crime scene, as showing a
“reasonable inference” that only a single shot was fired. Respondent counters that
Valdez fired more than a single shot as multiple witnesses testified and/or told law
enforcement at the scene that Valdez fired multiple times. We need not decide on how
many shots Valdez actually fired to resolve this issue because a single shot is sufficient to
establish intent to kill. (Smith, supra, 37 Cal.4th at p. 741.) There was substantial
evidence that Valdez fired at least one time at Ince. The jury could reasonably determine
that Valdez had intent to kill when he aimed the rifle at Ince’s torso and fired. (Ibid.)
       Valdez’s argument is also without merit that he did not have intent to kill because
he did not fire the rifle at “point blank range” but near his truck, which a police officer
estimated may have been as great as 40 to 50 feet away from where Ince stood. The law,
however, does not require a showing of “point blank range” to support a conviction of
attempted murder for firing a gun. (Smith, supra, 37 Cal.4th at p. 741.) Instead, “close
range” is sufficient where the shot could have inflicted a mortal wound had the shot been
on target. (Ibid.)
       The jury had substantial evidence to determine that Valdez fired the rifle at close
range and not from his truck. Ince testified that Valdez “approached [him] with the gun
and he shot me.” Dillon Bowen also testified that Valdez walked back to his truck,
grabbed a rifle and walked back around the truck and then he shot. Dillon Bowen stated
that when Valdez shot he was “just down the steps down the porch[]” and Ince was
standing on the porch in front of his door. Also, Eastep testified that Valdez walked back
towards Ince with the rifle before he pointed it at Ince and shot. This was substantial
evidence to support a conviction for attempted murder. (People v. Lashley (1991) 1


                                              20
Cal.App.4th 938, 945 [substantial evidence supported attempted murder conviction where
defendant fired single shot from a .22-caliber rifle from second story balcony].)
       Valdez also maintains that Ince “accidentally” leaned into the shot, establishing
that Valdez did not actually put Ince in the line of fire. Valdez’s argument, however, is
not supported by Ince’s testimony, when he told the jury that he “leaned to the right so I
could take the shot in my right side, because I knew it was coming.” Ince’s testimony
shows he was in the line of fire because he moved to take the shot on his right side. Even
if Ince’s testimony can be interpreted more than one way, the circumstances reasonably
justified the jury’s finding so the judgment will not be reversed. (People v. Abilez (2007)
41 Cal.4th 472, 504 [opinion of reviewing court that circumstances might also reasonably
be reconciled with a contrary finding of the jury does not warrant reversal of judgment].)
The jury was well within its right to use Ince’s testimony as establishing Valdez placed
Ince in the line of fire and intended to kill him. (Smith, supra, 37 Cal.4th at p. 741.)
       Finally, Valdez’s reliance on Leon, supra, 181 Cal.App.4th 452, is misplaced. In
Leon, the defendant fired a single shot into the right taillight of a car that held three
occupants. Once of the occupants was struck and killed. The defendant was convicted of
one count of murder and two counts of attempted murder. (Id. at pp. 456-458.) Two of
the occupants were seated on the passenger side, with one occupying the front seat and
the other the rear seat. The third occupant was the driver. (Id. at p. 457.) The shot went
through the taillight and back seat, and killed the back seat passenger. (Id. at pp. 457-
458.) The Leon court held that the evidence was sufficient to support the finding of
intent to kill the two victims seated on the passenger side of the vehicle, one behind the
other, because they were in the defendant’s line of fire, but the evidence was insufficient
to show intent to kill the driver, who was not in the line of fire from the single shot. (Id.
at pp. 465-466.) The court noted that it was “physically impossible” for the single bullet
to strike the driver as well as the other two victims. (Id. at p. 465.)
                                              21
       Here, substantial evidence supports that Valdez fired a shot at Ince at close range
because Valdez walked towards Ince after getting his rifle from his truck and prior to
shooting. Also, substantial evidence supports that Ince was in the line of fire because he
“leaned to the right so [he] could take the shot in [his] right side, because [he] knew it
was coming.” It was physically possible for Valdez’s shot to strike Ince even before Ince
moved. As such, Leon is distinguishable.
       Likewise, Valdez’s attempt to distinguish Smith, supra, 37 Cal.4th 733, is
misplaced. In Smith, the defendant fired a single shot into the rear of a vehicle from a
distance of one car’s length away. Two victims were in the car and in the line of fire.
The defendant was convicted of attempted murder of both victims despite firing a single
shot. The Smith court upheld the defendant’s conviction for attempted murder against a
substantial evidence challenge. The Smith court emphasized that both victims were in the
line of fire and the shot was discharged from close range. (Id. at p. 743.) Given the facts
of this case, Smith supports affirming Valdez’s conviction for attempted murder because
Ince was in the line of fire and Valdez discharged the shot from close range.
       Substantial evidence supports the jury’s verdict that Valdez had a specific intent to
kill Ince when Valdez aimed the rifle at Ince’s torso and fired. (Smith, supra, 37 Cal.4th
at p. 741.) This evidence was reasonable, credible, and of solid value such that a
reasonable jury could find Valdez guilty beyond a reasonable doubt. (People v. Jones,
supra, 57 Cal.4th at p. 960; People v. Johnson, supra, 26 Cal.3d at p. 576.) Accordingly,
Valdez’s conviction in count 1 is affirmed.
       C.     Analysis of “Premeditation”
       Premeditation and deliberation exist when the attempted killing occurred as a
result of preexisting reflection rather than an “unconsidered or rash impulse.” (People v.
Bolin (1998) 18 Cal.4th 297, 332.) In the context of first degree murder, “‘premeditated’
means ‘considered beforehand,’ and ‘deliberate’ means ‘formed or arrived at or
                                              22
determined upon as a result of careful thought and weighing of considerations for and
against the proposed course of action.’” (People v. Mayfield (1997) 14 Cal.4th 668, 767.)
       The Supreme Court utilizes three categories of evidence to resolve the issue of
premeditation and deliberation: planning activity, motive, and manner of killing. (People
v. Steele (2002) 27 Cal.4th 1230, 1249.) These factors do not require a “special
combination” and they are not accorded any particular weight, but these factors are a
guide for an appellate court to assess whether the evidence supports an inference that a
killing or attempted killing occurred because of preexisting reflection. (People v. Bolin,
supra, 18 Cal.4th at pp. 331-332.) The appellate court will uphold an attempted murder
verdict when there is (1) extremely strong evidence of planning, or (2) evidence of
motive coupled with either (a) evidence of planning or (b) evidence of a manner of
killing showing that the defendant must have had a preconceived design. (People v.
Bloyd (1987) 43 Cal.3d 333, 348.)
       While premeditation and deliberation do not require an extended period of time,
the test is not the duration of time so much as the extent of reflection. (People v. Bloyd,
supra, 43 Cal.3d at p. 348.) The essence of premeditation and deliberation is a cold
calculated judgment rather than a rash impulse. (People v. Cole (2004) 33 Cal.4th 1158,
1224.) The Supreme Court has cautioned, however, that if “deliberation” and
“premeditation” meant no more reflection than that involved in forming intent to kill,
then there would be no distinction between attempted murder, and attempted
premeditated and deliberate murder. (People v. Anderson (1968) 70 Cal.2d 15, 26.)
       Here, substantial evidence established that Valdez had a motive to kill Ince.
Valdez and Ince engaged in an argument after Ince told Valdez he was no longer
welcome at the Ince home over concerns Valdez had tried to steal marijuana plants. Ince
and Valdez’s argument before the attempted murder is sufficient to support an inference
that anger motivated Valdez to kill. (People v. Bloyd, supra, 43 Cal.3d at pp. 342-343,
                                             23
348.) Valdez argues that his disagreement with Ince over the marijuana plants “hardly
supports a motive to kill.” However, a motive to kill need not be rational and even
shallow anger at how Ince spoke to Valdez may be a motive for murder. (People v.
Lunafelix (1985) 168 Cal.App.3d 97, 102.)
       As to planning, substantial evidence also exists that Valdez did more than act on a
rash impulse. Valdez drove to Ince’s house with a loaded rifle in his truck. This is
circumstantial evidence that Valdez had considered the possibility of a violent encounter.
(People v. Lee (2011) 51 Cal.4th 620, 636; People v. Alcala (1984) 36 Cal.3d 604, 626,
abrogated by statute on other grounds as stated in People v. Falsetta (1999) 21 Cal.4th
903, 911 [“when one ... brings along a deadly weapon which he subsequently employs, it
is reasonable to infer that he considered the possibility of homicide from the outset”].)
       After arguing with Ince, Valdez returned to his truck, obtained the rifle, and then
walked back towards Ince before aiming the rifle and firing. One witness even testified
that Valdez backed the truck out of the driveway and then positioned it so that it was
“facing into the road” before obtaining his rifle. This was substantial evidence for the
jury to determine that Valdez acted on more than just a rash impulse. (People v. Bolin,
supra, 18 Cal.4th at p. 332.) Although the record does not suggest that it took Valdez a
significant period of time to retrieve his rifle and walk back towards Ince, premeditation
and deliberation do not require an extended period of time, and cold, calculated judgment
can occur quickly. (Id. at pp. 331-332.)
       Valdez argues that his actions only show a “sudden burst of anger” after he argued
with Ince because he did not have the rifle on his person when he first spoke with Ince
but had to return to retrieve it, thereby suggesting a “sudden unplanned and impulsive
decision to fire in a fit of passion.” The jury, however, was given the opportunity to find
Valdez guilty of attempted voluntary manslaughter (heat of passion), which it rejected.
Based on this record, the jury could have reasonably determined that Valdez acted with
                                             24
more than a sudden burst of anger when, instead of shooting Ince during their argument,
he walked away from Ince, returned to his truck, retrieved the rifle, and then walked back
to shoot Ince.
       As to the manner of the attempted killing, Valdez again asserts that the evidence
infers only a single shot was fired, “thereby suggesting an unconsidered and hastily
conceived rash impulse to scare or frighten” Ince. However, even a single shot aimed at
a vital area of the victim’s body at close range is evidence of deliberation. (People v.
Koontz (2002) 27 Cal.4th 1041, 1082.)
       Respondent again urges that the evidence establishes that multiple shots were
fired. In viewing the evidence in the light most favorable to the verdict, the jury had
substantial evidence to determine that Valdez fired more than once at Ince. The manner
of the attempted killing shows that Valdez acted deliberately to bring about Ince’s death.
       Finally, Valdez cites People v. Boatman (2013) 221 Cal.App.4th 1253 (Boatman)3
as support that there is insufficient evidence to find premeditation. The facts of Boatman,
however, are very different from those presented here.
       In Boatman, the defendant shot his girlfriend in her face while they were in a
bedroom of his family’s home. (Boatman, supra, 221 Cal.App.4th at p. 1258.) There
were other family members in the home at the time, but none of them witnessed the
shooting. The defendant gave different versions of what happened. He initially told

3
       Via letter dated September 22, 2014, Valdez submitted Boatman as supplemental
authority asserting that Boatman was decided after the November 5, 2013, mailing of
Valdez’s reply brief. Boatman was published on December 4, 2013. As a general
proposition, points raised after the opening brief will not be considered unless good cause
is shown for failure to present them earlier. (People v. Adams (1990) 216 Cal.App.3d
1431, 1441, fn. 2; People v. Jackson (1981) 121 Cal.App.3d 862, 873.) Given Boatman’s
publication date, Valdez has shown good cause. (Meier v. Ross General Hospital (1968)
69 Cal.2d 420, 423, fn. 1.) Accordingly, we will consider Boatman.

                                             25
officers that his girlfriend accidentally shot herself. He then stated that he accidentally
shot her thinking the gun was not loaded. His final story was that he knew the gun was
loaded and his girlfriend playfully pointed it at him, he slapped it away, and he then
cocked back the hammer “‘just jokingly’” and the gun fired after the hammer slipped.
(Id. at p. 1259.) At trial, however, he testified that she playfully pointed the gun at him
and he took it and playfully pointed it back at her. While pointing it at her, he cocked
back the hammer, and, when she slapped the gun, it discharged. (Id. at p. 1260.)
Immediately after the shooting, the defendant asked his brother to call the police and he
attempted to give his girlfriend mouth-to-mouth resuscitation. (Ibid.)
       The Boatman court concluded that there was no planning evidence presented.
(Boatman, supra, 221 Cal.App.4th at p. 1267.) The court pointed out that there was “no
evidence that defendant left the room or the house to get a gun, or that he even moved
from his squatting position on the floor.” (Ibid.) The court further reasoned that the
“[d]efendant’s behavior following the shooting [was] of someone horrified and distraught
about what he had done, not someone who had just fulfilled a preconceived plan,” noting
that he tried to resuscitate his girlfriend, told his brother to call the police, and could be
heard crying in the background during the 911 call. (Ibid.) The court concluded that
“[t]he evidence not only fails to support an inference of a plan to kill [his girlfriend], but
strongly suggests a lack of a plan to kill.” (Ibid, original italics.)
       The Boatman court also found “little or no relevant motive evidence.” (Boatman,
supra, 221 Cal.App.4th at p. 1267.) The only motive evidence was a text message from
the victim to a friend, stating that she was having a fight with the defendant. The
Attorney General relied on this to argue that the jury may have inferred that the defendant
was “‘in a bad mood after being released from custody and he was angry with [his
girlfriend].’” (Id. at pp. 1267-1268.)


                                               26
       Here, unlike in Boatman, substantial evidence establishes that Valdez walked
away from Ince in order to retrieve his loaded rifle, giving him time to premeditate and
deliberate before he returned and fired. Further, unlike in Boatman, substantial evidence
establishes that Valdez had a motive to kill Ince following their argument and dispute
over the marijuana crop. Finally, unlike in Boatman, there is no evidence that Valdez’s
behavior following the shooting was of someone horrified and distraught about what he
had done. Instead of trying to give aid to Ince or having authorities summoned, as the
defendant did for his girlfriend in Boatman, Valdez fled the crime scene. Indeed, the jury
even heard testimony that, before fleeing, Lonero witnessed Valdez “picking up objects
from the ground in front of [Ince’s] residence” and, although Lonero was not sure what
those objects were, it “may have been spent shell casings from the rifle that [Valdez] had
fired.” Unlike in Boatman, Valdez’s actions after the shooting were those of someone
who had just fulfilled a preconceived plan. (Boatman, supra, 221 Cal.App.4th at p.
1267.) Boatman is distinguishable and does not support Valdez’s argument.
       When the Supreme Court’s three factors are analyzed, substantial evidence
supports an inference that the attempted killing occurred because of Valdez’s preexisting
reflection. (People v. Bolin, supra, 18 Cal.4th at p. 332.) This evidence was reasonable,
credible, and of solid value such that a reasonable jury could find that Valdez intended to
kill Ince with deliberation and with premeditation. (People v. Jones, supra, 57 Cal.4th at
p. 960.) Accordingly, Valdez’s conviction in count 1 is affirmed.

       III. VALDEZ GAVE VOLUNTARY AND INTELLIGENT ADMISSIONS TO
            THE THREE PRIOR PRISON TERM ENHANCEMENTS UNDER
            SECTION 667.5, SUBDIVISION (B)
       Valdez argues that he did not voluntarily and intelligently admit the three prior
prison term enhancements under section 667.5, subdivision (b). As a result, Valdez urges



                                            27
that this matter should be remanded for retrial of these prior conviction allegations. We
disagree.
       A.     Background
       On the first day of trial, but before the jury was sworn, the following exchange
took place between the court, defense counsel (Mr. Bianco), the prosecutor (Mr.
Rodriguez), and Valdez.

              “THE COURT:          [Valdez] matter.

              “MR. BIANCO:           Yes. We talked about this procedurally in
              chambers. There are special allegations on all three counts in which
              the District Attorney has alleged a prior felony for purposes of the
              jury not hearing the specifics about those prior felonies and limiting
              their understanding of [Valdez’s] record that he’s been convicted of
              felony crimes of moral turpitude. He would be admitting special
              allegations of the prior felony in case ... 40793, 520342 and 135783.
              I believe it’s just those three.

              “MR. RODRIQUEZ:             Right.

              “THE COURT:           Those are the three. They’re all from Tulare
              County. Each of those adds an additional year should you be found
              guilty of any of these three crimes. Do you understand that?

              “[VALDEZ]:           Yes.

              “THE COURT:            By admitting those now you’re going to be
              giving up your right to have the jury decide that issue. You’d also
              have the right to testify, but nobody could force you to do so
              regarding those matters, but nobody could force you to do so. You’d
              have the right to subpoena witnesses into court at no expense to you,
              and the right to cross-examine and confront witnesses that might be
              called against you.

              “[VALDEZ]:            What do you mean by admitting them? Am I
              getting time for that?

              “THE COURT:          Only if you’re convicted of one of those three
              crimes.

                                            28
              “[VALDEZ]:             All right.

              “THE COURT:            You understand those rights, then?

              “[VALDEZ]:             Yes.

              “THE COURT:            Do you give up those rights?

              “[VALDEZ]:             Yes.

              “THE COURT:          Okay. Pursuant to 667.5(b) that you suffered a
              conviction in court case 40793 for a violation of Vehicle Code
              Section 10851 on July 15, 1998, out of Tulare County?

              “[VALDEZ]:             Yes, sir.

              “THE COURT:          And also case CRF 00520342, for a violation of
              Health and Safety Code Section 11377, conviction date February 4,
              2000, out of Tulare County?

              “[VALDEZ]:             Yes, sir.

              “THE COURT:        And also VCF 135783 for a violation of Health
              and Safety Code Section 11359, conviction date March 18, 2005, out
              of Tulare County.

              “[VALDEZ]:             Yes, sir.”
       B.     Standard of Review
       The trial court must ensure that a defendant who wishes to admit a prior
conviction first receives a Boykin-Tahl4 advisement about his or her rights and obtain
waivers regarding (1) the right to a trial to ascertain the fact of the prior conviction; (2)
the right to remain silent; and (3) the right to confront adverse witnesses. (In re Yurko
(1974) 10 Cal.3d 857, 863; People v. Mosby (2004) 33 Cal.4th 353, 356 (Mosby).)
Advisement and waiver of these rights are necessary to establish a defendant’s voluntary



4
      Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d
122 (Boykin-Tahl).

                                                 29
and intelligent admission to a prior conviction. (Mosby, supra, at p. 356; People v.
Howard (1992) 1 Cal.4th 1132, 1178-1179.)
       When the Boykin-Tahl advisement is defective, the appellate court must remand
unless the record affirmatively shows the waiver was “‘voluntary and intelligent under
the totality of the circumstances.’” (Mosby, supra, 33 Cal.4th at p. 360, quoting People v.
Howard, supra, 1 Cal.4th at p. 1175.) The entire proceeding, not just the plea colloquy,
is reviewed. (Mosby, supra, at p. 361.)
       The Supreme Court divides defective plea advisements into two categories: (1)
silent record cases, and (2) cases of incomplete Boykin-Tahl advisements. (Mosby, supra,
33 Cal.4th at pp. 361-362.) Silent record cases must be remanded because the appellate
court cannot infer a voluntary and intelligent waiver from the record. (Id. at p. 362.)
“Truly silent-record cases are those that show no express advisement or waiver of the
Boykin-Tahl rights before a defendant’s admission of a prior conviction.” (Id. at p. 361.)
Conversely, cases in the incomplete advisement category can be affirmed if the record
affirmatively shows voluntary and intelligent waiver. (Id. at p. 365; see People v.
Howard, supra, 1 Cal.4th at p. 1180.)
C.     Analysis
       Here, Valdez does not contend, and we do not find, that this is a “silent record”
case requiring remand. On the contrary, the trial court admonished Valdez that by
admitting the priors “you’re going to be giving up your right to have the jury decide that
issue. You’d also have the right to testify, but nobody could force you to do so regarding
those matters, but nobody could force you to do so. You’d have the right to subpoena
witnesses into court at no expense to you, and the right to cross-examine and confront
witnesses that might be called against you.” In so doing, the trial court adequately
informed Valdez of his right to a jury trial, his right to testify, that nobody could force
him to testify, his right to subpoena witnesses, and his right to cross-examine and
                                              30
confront witnesses. This was done prior to receiving Valdez’s admissions on the priors.
These advisements were proper and satisfied the standard set forth by the Supreme Court.
(Mosby, supra, 33 Cal.4th at p. 356.)
       Valdez, however, argues that under the totality of the circumstances, he did not
give proper waivers. He raises a series of concerns, set forth below, which are
unconvincing when viewed individually or collectively.
               1.     The Court Gave a Satisfactory Advisement on the Trial Right
       Valdez first asserts that the trial court’s advisements on his right to trial was
defective because the trial court “alluded to the jury trial right” but failed to inform him
“that he also had a right to a court trial on the prison priors.” Valdez, however, cites no
authority holding an admonishment is defective where the trial court only mentions a
right to a trial by jury and fails to advise the defendant of the right to a court trial.
       To the contrary, the Supreme Court, in fashioning the Boykin-Tahl advisements,
held that “each of the three rights mentioned--self-incrimination, confrontation, and jury
trial--must be specifically and expressly enumerated for the benefit of and waived by the
accused” before a guilty plea could be accepted. (In re Tahl, supra, 1 Cal.3d at p. 132,
italics added.)
       Five years after In re Tahl, the Supreme Court extended the three Boykin-Tahl
admonitions and required them to be given before a court accepts a defendant’s
admission that he had prior felony convictions. (In re Yurko, supra, 10 Cal.3d 857, 863.)
At no time has the Supreme Court expanded the Boykin-Tahl advisements to require
advisement to the accused on the right to a court trial in the alternative to a jury trial. The
trial court’s express advisement to Valdez that he had the right to a jury trial satisfies the
Boykin-Tahl line of cases. (Mosby, supra, 33 Cal.4th at pp. 359-360.)




                                               31
              2.     The Court Adequately Advised on the Right to Not Testify
       Valdez next contends that the trial court’s advisement regarding his right against
self-incrimination was defective because it was “confusing and incomplete” and did not
correctly inform him of the “crux” of his right against self-incrimination.
       The trial court, however, made it clear Valdez could not be forced to testify, which
is the “crux” of his right against self-incrimination. (U.S. Const., 5th Amend. [“[n]o
person . . . shall be compelled in any criminal case to be a witness against himself ….”];
see People v. Tom (2014) 59 Cal.4th 1210, 1222-1223.)
       Valdez’s argument is without merit.
              3.     All of the Elements Are Deemed Admitted
       Valdez maintains that the trial court did not advise, and he did not admit, all of the
elements of the section 667.5, subdivision (b), enhancements5, demonstrating that his
admission was not intelligent and voluntary under the totality of the circumstances.
Valdez cites People v. Epperson (1985) 168 Cal.App.3d 856 (Epperson) in support.
However, Valdez’s argument and legal authority are not persuasive.
       In Epperson, the defendant admitted only the fact of each prior conviction but not
the existence of the requisite prison term served or the nonexistence of the five-year
“washout” period under section 667.5, subdivision (b). (Epperson, supra, 168
Cal.App.3d at p. 864.) The Epperson court declined to view defendant’s admissions of
the “convictions” as including admissions of all the necessary elements under section
667.5, subdivision (b). (Epperson, supra, at pp. 864-865.) The Epperson court, however,


5
       Imposition of a sentence enhancement under section 667.5 requires proof that the
defendant (1) was previously convicted of a felony; (2) was imprisoned as a result of that
conviction; (3) completed that term of imprisonment; and (4) did not remain free for five
years of both prison custody and the commission of a new offense resulting in a felony
conviction. (§ 667.5, subd. (b); People v. Tenner (1993) 6 Cal.4th 559, 563.)

                                             32
noted that the government conceded at oral argument that the defendant had not
reoffended within the required five-year period, and striking the enhancement was
therefore proper. (Id. at p. 865.) The Epperson court then agreed that modification of
defendant’s sentence was proper. (Ibid.)
       In contrast, in People v. Carrasco (2012) 209 Cal.App.4th 715 the defendant
admitted only the fact of the prior convictions and not the additional facts that he served
separate prison terms for those priors and that he committed a new crime within the five-
year “washout” period. (Id. at p. 723.) The Carrasco court, however, found the
defendant’s admissions sufficient to encompass both the facts of the convictions and the
elements of the enhancements because the facts were alleged in the information and the
court alluded to them. (Id. at p. 724.) At the time of the admission the trial court noted
that the priors were “‘both state prison priors pursuant to 667.5, subdivision (b).’” (Ibid.)
The court asked the defendant if he understood that he could be sentenced to serve an
additional one year for each of the two state prison priors, and the defendant answered
that he did understand, and he then admitted the priors. (Ibid.) The trial court then found
the prior convictions true “‘within the meaning of Penal Code section 667.5, subdivision
(b).’” (Ibid.) The Carrasco court found that under the “totality of the circumstances” the
defendant admitted the allegations set forth in the information, which included all of the
elements under section 667.5, subdivision (b). (Carrasco, supra, at p. 724.)
       Here, we agree with Carrasco and find Epperson unpersuasive. Valdez was
charged by information, which specifically alleged that he had suffered three prior
convictions for which he had served a prison term and did not remain free of prison
custody for, and committed an offense resulting in a felony conviction during, a period of
five years subsequent to the conclusion of the term, within the meaning of section 667.5,
subdivision (b). At the beginning of the exchange before the admissions, Valdez’s trial
counsel alluded to the information when he stated that there “are special allegations on all
                                             33
three counts in which the District Attorney has alleged a prior felony ....” Valdez’s
counsel then stated that Valdez “would be admitting special allegations of the prior
felony in case ... 40793, 520342 and 135783.” The trial court, as in Carrasco, then
specifically mentioned section 667.5, subdivision (b), in eliciting Valdez’s admissions to
the allegations of the prior convictions. The trial court also cautioned Valdez that he
would receive more time if he was convicted of one of the current crimes.
       Under the totality of the circumstances, Valdez admitted the allegations as set
forth in the information, which included all the elements under section 667.5, subdivision
(b). (Carrasco, supra, 209 Cal.App.4th at pp. 724-725; see People v. Ebner (1966) 64
Cal.2d 297, 303 [“Defendant’s admission of the prior convictions is not limited in scope
to the fact of the convictions but extends to all allegations concerning the felonies
contained in the information.”].)
              4.     Valdez Understood His Rights
       Valdez next points to his question to the court--“What do you mean by admitting
them? Am I getting time for that?”--as evidence his admission was not intelligent and
voluntary. We are not persuaded. If anything, Valdez’s question, and the court’s answer,
further shows the subsequent waivers were voluntary and intelligent because Valdez
asked about the consequence of admitting the priors and the court confirmed he would
receive additional time if he was convicted. Immediately after this exchange, the court
then asked Valdez if he understood these rights, and Valdez responded in the affirmative.
This exchange only reinforces that Valdez was informed and understood his rights.
              5.     Valdez’s Past Criminal History Is Relevant
       Finally, Valdez stresses that his factual situation differs from the facts in Mosby
because, unlike in Mosby, the trial court’s advisements occurred before his jury trial
commenced. As such, Valdez reasons that he had no way to understand and appreciate
his rights when he entered into his admissions. Further, Valdez contends his criminal
                                             34
history cannot be used to imply he intelligently and voluntarily waived his rights, and he
cites People v. Campbell (1999) 76 Cal.App.4th 305 (Campbell) and People v. Sifuentes
(2011) 195 Cal.App.4th 1410 (Sifuentes). Again, Valdez’s contentions have no merit.
       In both Sifuentes and Campbell, the court rejected the prosecution’s argument that
the defendant’s experience and familiarity with the criminal justice system demonstrated
that he intelligently and voluntarily waived his rights. (Campbell, supra, 76 Cal.App.4th
at p. 310; Sifuentes, supra, 195 Cal.App.4th at pp. 1420-1421.) However, in both
Campbell and Sifuentes, the trial court gave no admonitions with respect to any of the
applicable constitutional rights and they were both “silent-record” cases. It was in this
context as “silent record” cases that the court rejected the contention it could infer from
the defendant’s past experience and familiarity with the criminal justice system that the
defendant intelligently and voluntarily waived his rights. (Campbell, supra, at p. 310;
Sifuentes, supra, at p. 1421.)
       Here, we do not have a “silent record case” and, instead, the trial court gave the
required Boykin-Tahl admonitions. As such, Campbell and Sifuentes are distinguishable.
As discussed in Mosby, Valdez’s past criminal history is relevant.
       A review of the probation officer’s report reveals that Valdez had extensive
experience with the criminal justice system with six previous felony convictions, five
violations of parole and numerous misdemeanor convictions. Even more telling, the
report shows Valdez had a previous prison sentence enhanced for prison priors under
section 667.5, subdivision (b). It is logical for us to infer that someone with Valdez’s
experience in the criminal justice system, even if he had not yet undergone a jury trial,
understood his right to a jury trial, to confront the witnesses against him, and his right
against compulsory self-incrimination. We thus conclude that, under the totality of the
circumstances, Valdez’s admissions to the enhancements were made intelligently and


                                             35
voluntarily. The trial court did not err by imposing the one-year prior prison term
enhancements.

        IV. VALDEZ IS ENTITLED TO 476 DAYS OF PRESENTENCE CUSTODY
            CREDIT
        Valdez argues that he is entitled to additional presentence custody credits so that
his total award is 476 days for time actually served (414 days) and local conduct (62
days). Respondent agrees.
        The probation report indicates Valdez’s actual days of custody were calculated
based upon a September 20, 2011, to October 25, 2012, period. Valdez, however, was
sentenced on November 6, 2012, and the trial court failed to include the additional days
in custody. (People v. Smith (1989) 211 Cal.App.3d 523, 526 [actual days of custody run
through sentencing date].) September 20, 2011, to the date of sentencing equals 414
days.
        Because Valdez was convicted of a violent felony as set forth under section
2933.1, his conduct credits are calculated at the rate of 15 percent. (§ 2933.1.) Fifteen
percent of 414 equates to 62 days. As such, Valdez is entitled to 476 total days of
presentence credit and the judgment will be so modified.
        V.     THE ABSTRACT OF JUDGMENT CONTAINS CLERICAL ERRORS
        Valdez’s final contention is that the abstract of judgment has clerical errors. Once
again, respondent agrees.
        The jury found Valdez guilty as charged in count 1. The jury found true that in the
commission of the attempted murder Valdez personally and intentionally discharged a
firearm which proximately caused great bodily injury (§ 12022.53, subd. (d)), personally
and intentionally discharged a firearm (§ 12022.53, subd. (c)), personally and
intentionally used a firearm (§ 12022.53, subd. (b)), and personally inflicted great bodily
injury (§ 12022.7, subd. (a)).

                                             36
       In accordance with section 12022.53, subdivision (f), the trial court imposed and
then stayed three of these four enhancements. (People v. Gonzalez (2008) 43 Cal.4th
1118, 1130.) Specifically, associated with count 1, the court stayed the enhancements
under sections 12022.7, subdivision (a), 12022.53, subdivision (b), and 12022.53,
subdivision (c). For count 1, the court sentenced Valdez to life with the possibility of
parole, plus a consecutive term of 25 years to life for the enhancement pursuant to section
12022.53, subdivision (d).6
       However, a clerical mistake occurred. The abstract of judgment indicates that the
court stayed three enhancements pursuant to section 12022.53, subdivision (d), which
must be corrected. The abstract should be amended to reflect that the enhancements were
stayed under sections 12022.53, subdivision (b), and 12022.53, subdivision (c). The
abstract correctly shows the stayed enhancement pursuant to section 12022.7, subdivision
(a). The three stayed enhancements under section 12022.53, subdivision (d), should be
stricken from the abstract.
                                        DISPOSITION
       The case is remanded for the trial court to correct the abstract of judgment to show
that Valdez had a total of 476 days presentence credits based on 414 days of actual
custody and 62 days of conduct credit and to modify the abstract of judgment to reflect
the stayed enhancements pursuant to section 12022.53, subdivision (b), and section
12022.53, subdivision (c). The court shall strike the three stayed enhancements pursuant
to section 12022.53, subdivision (d).




6
       The court also imposed three consecutive terms of one year each for the prior
prison term enhancements pursuant to section 667.5, subdivision (b).

                                            37
      The trial court is directed to prepare an amended abstract of judgment to reflect the
above changes and to forward the amended abstract of judgment to the appropriate
authorities. The judgment is otherwise affirmed.


                                                       ________________________
                                                       Franson, J.


WE CONCUR:


______________________
Kane, Acting P.J.


______________________
Poochigian, J.




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