Filed 5/31/13 P. v. Sims CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B243961

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA124101)
         v.

ELIZABETH SIMS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, John A.
Torribio, Judge. Affirmed as modified.
         Nadezhda M. Habinek, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels and Esther
P. Kim, Deputy Attorneys General, for Plaintiff and Respondent.


                                               I. INTRODUCTION


         A jury convicted defendant, Elizabeth Sims, of phencyclidine possession for sale
(Health & Saf. Code, § 11378.5) and cocaine base possession (Health & Saf. Code, §
11350, subd. (a)). She was sentenced to six years in state prison. Defendant contends the
trial court failed to adequately advise her of her constitutional rights before accepting her
admission of a prior conviction. We find that under the totality of the circumstances
defendant’s admission of her prior conviction was knowing and intelligent. We modify
the oral pronouncement of judgment as to assessments. We affirm the judgment in all
other respects.


                                II. PROCEDURAL FACTS


       The information alleged defendant had a prior serious or violent felony conviction
within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12.
Trial on the prior conviction allegation was bifurcated. After the jurors commenced
deliberation, defendant waived her right to a jury trial on the prior conviction allegation.
Prior to the waiver, the trial court advised defendant of her right to a jury trial, but not her
rights to confront witnesses and remain silent: “The Court: On the record, does Ms.
Sims want to waive a jury on the priors if she’s convicted? [¶] [Lizandro] Salas [for the
defendant]: Yes. [¶] The Court: Ms. Sims, if the jury convicts you, you have a right to
have this same jury determine if you suffered any prior convictions in which you went to
state prison. Mr. Salas has indicated to the court that you are willing to waive jury, only
if they find you guilty, and have the court determine if you suffered any priors. [¶] Is
that correct? [¶] The Defendant: Yeah. [¶] The Court: Do you understand that you
have the right to a jury trial? [¶] The Defendant: (Nods head.) [¶] The Court:
Understanding that right, do you now waive and give up your right to a jury trial on the
priors only? [¶] The Defendant: Yes. [¶] The Court: Counsel join? [¶] Mr. Salas:
Yes. [¶] The Court: People join? [¶] Mr. Holcomb: Counsel joins. That also includes
the strike prior allegation. [¶] The Court: All priors. [¶] Mr. Holcomb: All priors.
Okay. [¶] The Court: But you’re correct. [¶] That would be any priors you’re charged
with, I would decide alone. Do you understand that? [¶] The Defendant: Yes.” (Italics
added.)

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       At the time of sentencing, defendant admitted the truth of the prior conviction
allegation. Again, prior to the admission, the trial court advised defendant of her right to
a court trial, but not her rights to confront witnesses and remain silent: “The Court: This
is Ms. Elizabeth Sims. She is present with Mr. Salas. Mr. Holcomb for the People.
Matter is on calendar for priors and sentencing. [¶] . . . [¶] The Court: Mr. Holcomb,
do you have anything you want to offer this morning? [¶] Mr. Holcomb: I do. I was
wondering if defense was going to stipulate or just admit the prior? [¶] Mr. Salas: Just
admit it and have the judge find it true. [¶] The Court: That’s the strike prior. [¶] Mr.
Salas: The strike prior. [¶] The Court: Okay. [¶] The Court: Ms. Sims, your counsel
has indicated that you are willing to admit that on February 13, 1985, in this county you
were convicted of the crime of first degree burglary and that is a strike. [¶] Do you
understand that? [¶] The Defendant: Yeah. [¶] The Court: You have a right to have
me, sitting as the judge alone, look at all the evidence and make a determination whether
that charge is true or not. Mr. Salas also has indicated that you are willing to admit it. [¶]
The Defendant: You didn’t ask me about that. [¶] [Defendant and counsel confer.] [¶]
The Defendant: Yes, sir. [¶] The Court: Do you waive your right to have the court
determine if you have suffered a prior, a strike prior? [¶] The Defendant: I already had
one. [¶] The Court: This is me alone. [¶] Remember, you had the jury trial on your
charges, the sales charges. Now, do you want me to have a little trial on the prior or do
you want to admit the prior? [¶] The Defendant: Do I want to admit the prior? [¶] The
Court: Yeah. [¶] The Defendant: It’s right there. I wasn’t even – I was 18. How are
you going to put it on me? [¶] The Court: The California Supreme Court has held they
could use the priors, even though that wasn’t the law when you were convicted. [¶] I
understand your frustration. A lot of things happened back then with defense lawyers
giving advice. But they have chosen to disagree. [¶] Then do you admit that you have
the prior strike prior? [¶] The Defendant: Yes. [¶] The Court: You understand this
will double any sentence I give you? [¶] The Defendant: No. [¶] The Court: By law,
any sentence I give you will be doubled because of the strike prior. [¶] Do you
understand that? [¶] The Defendant: Okay. [¶] The Court: Understanding that, do you

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admit the prior? [¶] The Defendant: Yes. [¶] The Court: Counsel join? [¶] Mr. Salas:
Yes. [¶] The Court: People join? [¶] Mr. Holcomb: People join. [¶] The Court:
Court finds the strike prior true.” (Italics added.)


                                     III. DISCUSSION


                A. Defendant’s Admission Was Knowing And Intelligent


       The question before us is whether, under the totality of the circumstances,
defendant’s admission of the prior conviction was voluntary and intelligent. (People v.
Hinton (2006) 37 Cal.4th 839, 875, fn. 12; People v. Mosby (2004) 33 Cal.4th 353, 360.)
We must examine the entire record to assess whether defendant’s admission was given
with an understanding of her rights. (Id. at p. 361; accord, People v. Hinton, supra, 37
Cal.4th at p. 875, fn. 12.) We find that it was. Defendant was represented at trial by
counsel. When the trial court inquired whether defendant was willing to admit her prior
conviction, she conferred with her attorney, Lizandro Salas, before doing so. When
defendant admitted the prior conviction allegation was true, she had just undergone a jury
trial. She did not testify at that trial. Hence she had just exercised her right to remain
silent. The prosecution was forced to prove the charges against her. Defendant, through
counsel, had confronted the adverse witnesses at trial. Therefore, she would have
understood her confrontation right. Moreover, defendant had extensive experience with
the criminal justice system. She had 14 prior convictions as an adult. Under the totality
of the circumstances, defendant voluntarily and intelligently admitted the prior conviction
allegation was true. (People v. Hinton, supra, 37 Cal.4th at p. 875, fn. 12; People v.
Mosby, supra, 33 Cal.4th at pp. 364-365.)




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                                     B. Assessments


       The trial court imposed a $30 court facilities assessment (Gov. Code, § 70373,
subd. (a)(1)) and a $40 court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)).
The assessments should have been imposed as to each of the two counts of which
defendant was convicted. (People v. Sencion (2012) 211 Cal.App.4th 480, 483-484; see
People v. Alford (2007) 42 Cal.4th 749, 758, fn. 6.) The oral pronouncement of judgment
must be modified to so provide. The abstract of judgment is correct in this regard and
need not be amended.


                                   IV. DISPOSITION


       The oral pronouncement of judgment is modified to impose $80 in court
operations assessments (Pen. Code, § 1465.8, subd. (a)(1)) and $60 in court facilities
assessments (Gov. Code, § 70373, subd. (a)(1)). The judgment is affirmed in all other
respects.
                            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                            TURNER, P.J.


       We concur:




       KRIEGLER, J.                                            O’NEILL, J.


       Judge of the Ventura Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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