Filed 8/6/14 P. v. Valdez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT



THE PEOPLE,                                                                                F066817

         Plaintiff and Respondent,                                           (Super. Ct. No. DF010971A)

                   v.                                                                    OPINION
CIRENIO AMBRIZ VALDEZ,

         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Robert S.
Tafoya, Judge.
         Ann Bergen, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and John
G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.

                                                        -ooOoo-


*        Before Levy, Acting P.J., Franson, J., and Peña, J.
                                    INTRODUCTION
       On January 9, 2013, appellant, Cirenio Ambriz Valdez, was charged in an
amended information with two felony counts of driving under the influence of alcohol
with two prior felony convictions for driving under the influence (Veh. Code, §§ 23152,
subd. (a) & 23550.5, count 1) and driving with a blood alcohol of .08 percent or higher
with two prior felony convictions for driving under the influence (Veh. Code, §§ 23152,
subd. (b) & 23550.5, count 2). The amended information further alleged a misdemeanor
violation of driving a vehicle with a suspended license (Veh. Code, § 14601.2, subd. (a),
count 3), two prior prison term enhancements (Pen. Code, § 667.5, subd. (b)), and five
prior convictions for driving while under the influence of drugs or alcohol.1
       Prior to the commencement of a jury trial, the court granted appellant’s motion for
a bifurcated trial on the issue of the truth of the prior prison term enhancements, and on
the truth of his prior driving under the influence convictions. Appellant was found guilty
of all three counts.2 Appellant waived a jury trial on the truth of his prior convictions.
Appellant admitted the truth of one of the prior prison term enhancements and of all the
allegations in the amended information that he had multiple convictions for prior acts of
driving under the influence.3 The second prior prison term enhancement was withdrawn
on motion by the prosecutor.
       Appellant was sentenced to prison for the upper term three years on count 1 and to
a consecutive term of one year for the prior prison term enhancement. Appellant’s



1      Unless otherwise designated, all further statutory references are to the Penal Code.
2     Because the only issue on appeal involves whether appellant knowingly and
voluntarily waived his right to a trial on the truth of his prior convictions, we do not
recount the facts of appellant’s offense.
3      The element in counts 1 and 2 of appellant’s prior convictions was also bifurcated.


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sentence on count 2 was stayed pursuant to section 654 and he was sentenced to a
concurrent term on count 3, the misdemeanor count.
       Appellant contends that his waiver of a jury trial on the truth of his prior
convictions for driving under the influence was not knowing and intelligent because the
trial court failed to properly advise him of his constitutional rights prior to taking his
admission of the prior convictions. We find that the record, taken as a whole, indicates
that appellant made a knowing and intelligent waiver of his right to a jury trial on the
truth of his prior convictions as well as the truth of the prior prison term enhancement.
                                       DISCUSSION
Trial Proceedings
       Appellant’s trial counsel, Killain Jones, argued a lengthy in limine motion to
bifurcate the issue of the truth of appellant’s prior convictions for driving under the
influence. Mr. Jones’s strategy was to protect appellant from the possibility of the jury
knowing about the past convictions so jurors would not say “hey he did it in the past, he
did it this time.” The trial court noted that the prior conviction allegations were related
more to sentencing than to any element of the current allegations.
       After consulting with the prosecutor, the court ruled that should appellant testify,
the prosecutor could impeach him by asking appellant about his two prior felony
convictions by referring to them as crimes of moral turpitude. Appellant did not testify
and the defense rested without calling witnesses.
       Just before the jury deliberations concluded, Jones informed the court that “if the
jury comes back with a guilty verdict, Mr. Valdez says he’s – if the jury comes back with
a guilty verdict, he will admit the prison prior and the prior convictions without a jury.”
The court replied that it understood “the jury was being waived.” Jones replied, “Yes.”
The court asked appellant if that was what he wanted to do. Appellant replied, “Yes.”
The jury finished deliberations and announced its verdict.

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       The court again asked appellant if it was his intention to admit the prior
convictions that were alleged. Again, appellant replied, “Yes.” Appellant then admitted
five prior convictions for driving under the influence and one prior prison term
enhancement.
Analysis
       Appellant asserts Yurko error,4 contending the record fails to show that he
knowingly and voluntarily waived his constitutional rights when he admitted the prior
convictions and the prior prison term enhancement because he had not been given the
advisements described in Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969)
1 Cal.3d 122 (Boykin-Tahl). Appellant contends that, since he was not specifically
advised of his right to confront witnesses and his privilege against self-incrimination, his
admissions must be set aside. We find that this case falls within the incomplete
advisement category of cases and the totality of the circumstances in this record
demonstrate defendant knowingly and voluntarily waived his constitutional rights when
he admitted his prison prior.
       Generally, before accepting a defendant’s guilty plea, the trial court must advise a
defendant and obtain waivers of (1) the privilege against self-incrimination; (2) the right
to trial by jury; and (3) the right to confront one’s accusers before accepting a guilty plea.
(People v. Mosby (2004) 33 Cal.4th 353, 359 (Mosby).) These three rights are referred to
as Boykin-Tahl rights. (See Mosby, supra, at p. 360.)
       The trial court must ensure that a defendant who wishes to admit a prior
conviction first receives a Boykin-Tahl advisement on the defendant’s rights regarding
jury trial, self-incrimination, and witness confrontation. (In re Yurko, supra, 10 Cal.3d at
p. 863.) When the Boykin-Tahl advisement is defective, the appellate court must remand

4      In re Yurko (1974) 10 Cal.3d 857.


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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 (1992) 1 Cal.4th 1132, 1175 (Howard).) The entire proceeding, not just the plea
colloquy, is reviewed. (Mosby, at p. 361.)
       The California 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.) Cases categorized as silent record cases must
be remanded by the appellate court because it cannot infer a voluntary and intelligent
waiver from the record. (Id. at p. 362.) Conversely, cases in the incomplete advisement
category can be affirmed if the record affirmatively shows voluntary and intelligent
waiver. (Id. at p. 365; see Howard, supra, 1 Cal.4th at p. 1180.)
       “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.” (Mosby,
supra, 33 Cal.4th at p. 361.) Included in this group are cases that have only a fleeting
reference to a jury trial but no other advisement. In silent-record cases, the trial court
often fails to take an actual waiver of any constitutional right from the defendant. (Id. at
p. 362.)
       A case of incomplete advisement occurs when the defendant is advised of his or
her right to a jury trial on the prior conviction allegation but not of the right to remain
silent or the right to confront witnesses. (Mosby, supra, 33 Cal.4th at p. 364.) In Mosby,
the trial court advised the defendant of his right to a trial by jury on the issue of a prior
conviction allegation that had been bifurcated from underlying narcotics allegations.
(Mosby, supra, 33 Cal.4th at pp. 356-358.) The defendant expressly waived his right to a
jury trial on the truth of the prior conviction, but was not advised of and did not waive his
other Boykin-Tahl rights. (Mosby, supra, at pp. 357-358.)



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       The Supreme Court in Mosby adopted the finding by the Court of Appeal that had
rejected the defendant’s argument that the trial court erred in failing to inform him of his
rights to remain silent and to confront witnesses: “‘It would exalt a formula (Boykin-
Tahl) over the very standard that the formula is supposed to serve (that the plea is
intelligent and voluntary) to suggest that a defendant, who has just finished a contested
jury trial, is nonetheless unaware that he is surrendering the protections of such a trial’
when[,] after being advised of the right to a trial on an alleged prior conviction[,] the
defendant waives trial and admits the prior.” (Mosby, supra, 33 Cal.4th at p. 364.)
       Mosby noted that the trial on a prior conviction was straightforward and
questioned whether a defendant who had just finished a trial for sale of cocaine would not
have understood that the trial of the alleged prior would afford him the same rights as he
had at trial on the drug offense. (Mosby, supra, 33 Cal.4th at p. 364.) We find the same
true of appellant in the case at bar.
       Appellant’s counsel sought during in limine motions to bifurcate the truth of
appellant’s prior convictions for sentence enhancement purposes as well as for the truth
of the prior prison term enhancement. Prior to the jury issuing its verdict, appellant’s
counsel informed the court that his client was waiving a jury trial. The court asked
appellant if this was the case and appellant responded affirmatively. Appellant also
expressly waived his right to a jury trial on the truth of the prior convictions and the
prison term enhancement.
       Finally, although it is uncertain from the current record whether appellant entered
a guilty plea in any of his five prior convictions, it is clear that appellant was very
familiar during his sixth proceeding with the criminal process. On this record, we find
from all of the circumstances that appellant made a knowing and intelligent admission of
the truth of his criminal convictions and the prior prison term enhancement.



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                            DISPOSITION
The judgment is affirmed.




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