Filed 8/29/14 P. v. Blanco 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,

         Plaintiff and Respondent,                                                      F067268

                   v.                                            (Super. Ct. Nos. F12902111; F08500427)

ERNESTO BLANCO,
                                                                                     OPINION
         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt,
Judge.
         James Bisnow, 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, Stephen G. Herndon and Max
Feinstat, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-



*        Before Detjen, Acting P.J., Franson, J., and Peña, J.
       In April 2009, in case No. F08500427, appellant, Ernesto Blanco, pled guilty to
first degree burglary (Pen. Code, § 460, subd. (a))1 and was placed on probation.
       In case No. F12902111, a jury convicted Blanco of first degree burglary (count
1/§ 460, subd. (a)), receiving stolen property (count 2/§ 496, subd. (a)), and resisting
arrest (count 3/§ 148, subd. (a)(1)), arising out of a March 2012 incident. In a separate
proceeding, Blanco admitted allegations that he had two prior convictions within the
meaning of the three strikes law (§ 667, subds. (b)-(i)), two serious felony enhancements
(§ 667, subd. (a)(1)) and two prior prison term enhancements.
       On April 28, 2013, the court found Blanco violated his probation in case No.
F08500427 by engaging in the March 2012 conduct underlying the charges in case No.
F12902111. The court then sentenced Blanco to an aggregate term of 35 years to life in
both cases: 25 years to life on his burglary conviction in case No. F12902111, two five-
year serious felony enhancements, and concurrent terms on the remaining counts
including Blanco’s burglary conviction in case No. F08500427.
       On appeal, Blanco contends: 1) the court committed instructional error; and 2) his
admission of the prior conviction allegations was not free and voluntary. We affirm.
                                          FACTS
The Substantive Offenses
       On March 25, 2012, at 5:34 p.m., Fresno County Sheriff’s Deputy James Lyman
responded to a residence on Jensen Avenue after receiving a dispatch that the garage
sensor of an alarm was activated there. While inspecting the garage, Deputy Lyman saw
Blanco standing in the backyard. He drew his gun and commanded Blanco to stop and
get on the ground but Blanco ran out of the yard. Deputy Lyman chased Blanco into a
field where Blanco was eventually taken into custody with the help of a police canine.
During a postcustody search, Deputy Lyman found coins, jewelry, pins, a necklace, and a


1      All further statutory references are to the Penal Code.


                                             2.
harmonica in Blanco’s pockets. He also found a silver loop earring in an area where he
had seen Blanco throw something.
       Deputy Lyman inspected the house and found the window on the back door
broken, the interior of the house ransacked, and a bicycle leaning against the side of the
house. Jayne Shapazian, whose mother lived at the house, arrived on the scene soon after
Blanco was taken into custody and identified the items found in Blanco’s pockets as
property taken from the house.
       Blanco testified he was riding his bicycle to his daughter’s house when he stopped
at the residence to urinate and went behind some bushes. While he was relieving himself,
he saw a shiny object in the grass in the backyard and he entered the yard to see what it
was. Blanco saw it was jewelry and put it in his pocket. He ran when he was confronted
by the deputy because he was trespassing. Blanco denied entering the house or hearing
the alarm. He conceded that he possessed stolen property and resisted arrest.
Jury Deliberations
       The court finished instructing the jury on March 19, 2013, at 1:50 p.m. Later that
afternoon, the jury informed the court that it had reached a verdict on all counts. While
polling the jurors, the court noticed that one juror appeared hesitant to state that he agreed
with the verdict of guilty on count 1. The court then told the jury it was not going to
accept the verdicts. In so doing, the court stated:

               “And our system of law requires that each of you not only reach this
       conclusion on an individual basis, but that you do it unanimously. And I’m
       not trying to in any way influence the decision that may ultimately come
       out of this, but you have to understand that it is my job not to accept a
       verdict that is not clear and unequivocal, okay, that [is] why I ask those
       questions.”
       Deliberations resumed the following morning. At 11:04 a.m., the jury submitted a
question to the court asking how to proceed if they had a hung jury. The court told the
jury through the clerk that it needed to know if there were any verdicts and for them to be
more specific on the nature of the deadlock. At 11:36 a.m., the jury sent a note to the

                                              3.
court stating they were hung on the burglary count and asking how to proceed. The court
then advised the attorneys it intended to bring the jury into the courtroom, voir dire them
on the nature of the deadlock and, depending on what they disclosed, either send them
back for further deliberations or declare a mistrial and accept the verdict as to the other
counts.
       The prosecutor suggested further argument whereas defense counsel suggested
that a “discussion” of CALCRIM would be appropriate. The court, however, brought the
jury back into the courtroom and simply asked them whether further instructions, further
readback of testimony, or any other assistance by the court would assist them in arriving
at a unanimous verdict on the burglary count. In so doing, the court explained,

               “Now ladies and gentlemen, I want you to understand that the law
       prefers and the purpose of trials is to achieve this, and that is the law prefers
       that we have unanimous verdicts in all matters submitted to you. It doesn’t
       mean that we are going to force the issue and I think our actions yesterday
       made that very clear, but if there is something that you feel would aid the
       twelve of you in reaching a, first of all, accommodating a further discussion
       of the issues and hopefully reach a unanimous verdict, then it is my job to
       try to accommodate you....”
       After a juror indicated that he or she would like to ask a question and would
submit a written request, the court stated:

              “So, folks, thank you for participating in the process. I hope you
       understand that we have to be as deliberate about it as we are, okay. We
       aren’t going through these motions just for the heck of it. We need to make
       a record. We need to make sure that everything is done in such a way that
       your deliberations are not in any way tampered with and that you have a
       full and complete opportunity to look at everything that you feel is
       important in your decision-making process, okay, so go back to the room
       and send me a request.”
       The jury deliberated for approximately 15 minutes before they were excused for
lunch at 12:00 p.m. At 1:30 p.m., they resumed deliberations. At approximately 1:58
p.m., the jury reached guilty verdicts on all counts.




                                              4.
                                        DISCUSSION
The Alleged Instructional Error
       Blanco relies on People v. Gainer (1977) 19 Cal.3d 835 (Gainer) to contend the
court coerced the jury into reaching a verdict when it instructed them that the “law
prefers” unanimous verdicts and that the “purpose of trials” is to achieve such verdicts.
According to Blanco, since a hung jury is a possible outcome of a trial, the court
incorrectly told the jury that the law preferred a unanimous verdict and that the purpose
of a trial was to achieve such a verdict. Blanco further claims that this “truly placed
‘excessive and illegitimate pressures on the deliberating jury.’” We will reject these
contentions.
       In Gainer, the Supreme Court examined the case law regarding instructions given
to deadlocked juries (sometimes called “dynamite” or “Allen” charges (after Allen v.
United States (1896) 164 U.S. 492), and identified “the two elements frequently found in
such instructions ... which raise the gravest doubts as to their propriety.” (People v.
Gainer, supra, 19 Cal.3d at pp. 842, 845.) The court determined that the “most
questionable feature is the discriminatory admonition directed to minority jurors to
rethink their position in light of the majority’s views.” (Ibid.) The second aspect of such
instructions that the court identified as particularly problematic was “the direction ... that
‘[the jury] should consider that the case must at some time be decided.’” (Ibid.)
       After examining the flaws in both of these parts of the instruction before it (the
Gainer instruction), the court adopted a “judicially declared rule of criminal procedure”
that “it is error for a trial court to give an instruction which either (1) encourages jurors to
consider the numerical division or preponderance of opinion on the jury in forming or
reexamining their views on the issues before them; or (2) states or implies that if the jury
fails to agree the case will necessarily be retried.” (Gainer, supra, 19 Cal.3d at p. 852, fn.
omitted.)




                                               5.
       Blanco does not argue, nor do we find, that the comments complained of invoke
either of these concerns. Further, jury unanimity in a criminal trial is more than a legal
preference or goal, it is a state constitutional requirement. (People v. Mickle (1991) 54
Cal.3d 140, 178.) Moreover, it does not follow from the possibility that every criminal
trial may end in a hung jury that the law does not favor a unanimous verdict or that the
purpose of a trial is not to achieve a unanimous verdict. Accordingly, we reject Blanco’s
contention that the court coerced the jury into reaching a verdict simply by telling them
the law preferred unanimous verdicts and that the purpose of a trial was for the jury to
reach a unanimous verdict.
Admission of the Prior Conviction Allegations
       In taking Blanco’s admission of the prior conviction allegations, the court stated,

               “So Mr. Blanco, previously we discussed the fact that you have the
       right to have this same jury decide whether it’s true that you’ve suffered
       these prior convictions and it would also be their job to determine if they
       qualify both as strike priors .... You have already entered a waiver of the
       right to have the jury hear that -- hear those prior conviction matters. You
       still have the right to a trial. That would be conducted by me, which would
       require the People to produce proof that you have in fact suffered these
       convictions and that they constitute ... strike priors ... under the law. [¶]
       Now if you give up the right to have a court trial, that means that we won’t
       be presenting any further evidence and there won’t be any further contest to
       these prior conviction allegations. You will in fact be admitting them.”
       The court did not advise Blanco of his right of confrontation or his right against
self-incrimination before it took his admission of the prior conviction allegations. Blanco
contends the court prejudicially erred by its failure to do so. Blanco is wrong.
       Before a trial court accepts a defendant’s admission to a prior conviction
allegation, the court must enumerate for the defendant the three rights that the defendant
is waiving (i.e., to a jury trial, to remain silent, and to confront witnesses), and must
obtain waivers of these rights from the defendant. (People v. Mosby (2004) 33 Cal.4th
353, 356, 359-360 (Mosby).) If an express waiver of these rights is not secured from the
defendant, reversal is required unless the record as a whole shows the admission was

                                              6.
voluntary and intelligent under the totality of circumstances. (Id. at pp. 360–361.) The
question is whether the defendant’s admission was intelligent and voluntary “because it
was given with an understanding of the rights waived.” (Id. at p. 361.)
       In those cases where “the transcript does not reveal complete advisements and
waivers,” the court must examine “the whole record, instead of just the record of the plea
colloquy” to determine whether the “admission ... was intelligent and voluntary in light of
the totality of circumstances.” (Mosby, supra, 33 Cal.4th at p. 361.) The factors the
court can consider include the defendant’s participation in a trial immediately prior to
entering a plea and the defendant’s prior experience in the criminal justice system from
which he may have learned of his constitutional rights. (Id. at p. 365.) “‘[A] defendant’s
prior experience with the criminal justice system’ is, as the United States Supreme Court
has concluded, ‘relevant to the question [of] whether he knowingly waived constitutional
rights.’ [Citation.] That is so because previous experience in the criminal justice system
is relevant to a recidivist’s ‘“knowledge and sophistication regarding his [legal] rights.”’
([Citation]; see United States v. Dawson (9th Cir. 1999) 193 F.3d 1107, 1110–1111 [the
defendant, who had received full advisements in state court action two months before he
entered a guilty plea on incomplete advisements in federal court, knowingly waived
rights of confrontation and silence despite lack of advisement on either].)” (Ibid. )
       Here, Blanco waived his right to a jury trial on the prior conviction allegations
prior to admitting them. Further, during the jury trial on the underlying offenses, which
had just concluded when Blanco admitted these allegations, Blanco exercised his right of
confrontation through his attorney’s cross-examination of prosecution witnesses.
Additionally, from 1977 through 2009, in 14 separate cases, Blanco was convicted of a
multitude of felony and misdemeanor offenses. Moreover, the prior strike allegations,
the prior prison term enhancements, and the serious felony enhancements were all based
on first degree burglary convictions that Blanco suffered in 1977 and 2009, and during
cross-examination, Blanco admitted suffering the 2009 burglary conviction.


                                             7.
       Accordingly, in view of Blanco’s admission of one prior conviction during the
trial and his extensive experience with the legal system, we conclude under a totality of
the circumstances that Blanco voluntarily and intelligently admitted the prior conviction
allegations.
                                     DISPOSITION
       The judgment is affirmed.




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