Filed 3/18/14 P. v. Bobbitt CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
                               publication or ordered published for purposes of rule 8.1115.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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                        E057872

v.                                                                        (Super.Ct.No. RIF1105603)

FREDERICK GARNETT BOBBITT,                                                OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. John M. Davis, Judge.

Affirmed.

         Sarah A. Stockwell, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Brendon

Marshall, Deputy Attorneys General, for Plaintiff and Respondent.




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       A jury convicted defendant and appellant Frederick Bobbitt of second degree

burglary (Pen. Code, § 459; Count 1)1 and petty theft (§ 484, subd. (c); Count 2). In a

bifurcated proceeding, defendant admitted two prior felony convictions from the state of

Georgia. The trial court imposed the upper term of three years imprisonment, doubled

to six years because of defendant’s prior strikes.

       Defendant challenges the validity of his waiver of a trial on his prior convictions,

arguing that the trial court’s failure to ask him if he was aware that he was surrendering

his rights not to testify and to confront the witnesses against him rendered his waiver

ineffective. We disagree.

                      FACTUAL AND PROCEDURAL HISTORY

       On October 8, 1992, defendant was convicted of robbery in Glynn County,

Georgia.2 He was sentenced to 15 years in state prison, and was paroled after serving

less than eight years. On April 11, 2002, defendant was convicted of robbery in Ware

County, Georgia. He was sentenced to 10 years in state prison, but was paroled after


       1   All further statutory references are to the Penal Code unless indicated.

       2  The Georgia statute under which defendant was convicted reads: “§ 16-8-40.
Robbery [¶] (a) A person commits the offense of robbery when, with intent to commit
theft, he takes property of another from the person or the immediate presence of
another: [¶] (1) By use of force; [¶] (2) By intimidation, by the use of threat or
coercion, or by placing such person in fear of immediate serious bodily injury to himself
or to another; or [¶] (3) By sudden snatching. [¶] (b) A person convicted of the offense
of robbery shall be punished by imprisonment for not less than one nor more than 20
years. [¶] (c) Notwithstanding any other provision of this Code section, any person
who commits the offense of robbery against a person who is 65 years of age or older
shall, upon conviction thereof, be punished by imprisonment for not less than five nor
more than 20 years.” (Ga. Code Ann. § 16-8-40 (West).)


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serving less than eight years. The robberies followed a pattern: defendant would

approach a cashier for a purchase. Once the cash register was opened, he would strike

the cashier in the face and grab money from the till.

       In the instant case, on November 1, 2011, defendant approached the cashier in a

home décor gift shop in Riverside. He had a 38-cent postcard in his hand, and gave the

cashier 50 cents in payment. When the cashier opened the register, defendant pulled the

register towards himself and grabbed some bills from the cash tray. Defendant left the

store with $111. Police officers tracked defendant to a city bus and arrested him.

Defendant was recognized at an in-field identification by the cashier, and another

witness that had followed defendant as he left the area where the gift shop was located.

       Defendant bifurcated trial on the current charges from the issue of his prior

convictions. He was informed by the trial judge that he had a right to a jury trial on

both issues, but waived a jury trial in favor of a bench trial on the priors. Defense

counsel also moved before trial to “dismiss” the prior strikes under People v. Superior

Court (Romero) (1996) 13 Cal. 4th 497. The motion was denied.

       Prior to the decision on the motion, defense counsel announced defendant had

decided to waive his right to a bench trial on the out-of-state strikes and would admit to

them. Counsel put on the record the substance of a conversation he had with defendant

about the “elements of robbery under the California Code and also the facts underlying

[defendant’s] conviction in Georgia.” The trial judge asked if defendant understood

admitting the prior strikes could double his term of imprisonment for the current

conviction. Defendant replied “Yes. I want to get it over with.”


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       The prosecutor then had defendant admit the prior strikes on the record. At that

point, defense counsel again noted he had reviewed the court records for both strikes

and “went through all the elements of robbery under California law with [defendant].”

Defendant agreed on the record that was correct. He then received a six-year sentence.

                                      DISCUSSION

       Defendant contends that his waiver of a court trial on the strike priors was invalid

because it was not made knowingly and intelligently.

       Since a guilty plea has serious consequences, a defendant seeking to plead must

be informed and aware of his rights before a court accepts his plea. The United States

Supreme Court found that a guilty plea constitutes the waiver of a defendant’s rights

against self-incrimination, to trial by jury, and to confrontation of the evidence against

him. As a result, if a “plea is not equally voluntary and knowing, it has been obtained in

violation of due process and is therefore void.” (Boykin v. Alabama (1969) 395 U.S.

238, 243, fn. 5 (Boykin).) The California Supreme Court required that all three rights

“be specifically and expressly enumerated for the benefit of and waived by the accused

prior to acceptance of his guilty plea.” (In re Tahl (1969) 1 Cal.3d 122, 132.) This

process is collectively called “the Boykin-Tahl admonitions.” The same rule applies to

the acceptance of an admission of the truth of an alleged prior conviction or prior prison

term. (In re Yurko (1974) 10 Cal.3d 857, 863.)




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       Subsequent precedent has held that reversal is required for failure to give the

Boykin-Tahl advisements only if the totality of the circumstances of the record does not

demonstrate that the plea was knowingly and intelligently entered. (People v. Howard

(1992) 1 Cal.4th 1132, 1175; People v. Bradford (2008) 169 Cal.App.4th 843, 853-

854.) The focus of this examination is not “whether the defendant received express

rights advisements, and expressly waived them, [but] whether the defendant’s admission

was intelligent and voluntary because it was given with an understanding of the rights

waived.” (People v. Mosby (2004) 33 Cal.4th 353, 361 (Mosby).) A Mosby inquiry is

not limited to “the courtroom colloquy,” and takes in the record of the entire

proceedings. (Ibid.)

       Further, Mosby differentiates between cases with “truly silent-record[s]” as to the

Boykin-Tahl advisements and those, as here, where the defendants had been advised of

their right to a jury trial, but not of the other two constitutional rights. (Mosby, supra,

33 Cal.4th at pp. 361-363.) Where the record is completely silent, a reviewing court

cannot infer that a defendant has knowingly and intelligently waived all three rights.

(Id. at p. 362.) When a defendant has actually waived his jury trial right, the status of

the remaining rights may be constructed from review of the record.

       The Mosby Court did not elevate procedure over function. “[T]rial on a prior

conviction is ‘simple and straightforward,’ often involving only a presentation by the

prosecution ‘of a certified copy of the prior conviction along with defendant’s

photograph [or] fingerprints’ and no defense evidence at all.” (Mosby, supra, 33

Cal.4th at p. 364, quoting People v. Monge (1997) 16 Cal.4th 826, 838.) Extensive


                                              5
proof is not required to support a waiver of a trial of prior convictions. The Mosby

defendant had just finished a jury trial, and “not only would have known of, but had just

exercised, his right to remain silent at trial. . . . And, because he had, through counsel,

confronted witnesses at that immediately concluded trial, he would have understood that

at a trial he had the right of confrontation.” (Mosby, at p. 364.) Finally, the Court noted

a defendant with prior convictions has some degree of knowledge and sophistication

regarding his legal rights, and since 1970, would have received at least the Boykin

advisements as part of any guilty plea. (Mosby, at p. 365.)

       The totality of circumstances can lead to the conclusion that a defendant was

unaware of his rights. That was the decision in People v. Christian (2005) 125

Cal.App.4th 688 (Christian), where the defendant pled no contest to the charges against

him and had not been tried. (Id. at pp. 693, 697.) Further, there was no information

regarding whether the defendant’s priors resulted from plea or trial. (Id. at p. 697.)

“Given the lack of information regarding [the defendant’s] prior convictions, the

significant gap [in time between his last conviction and the present charges], and the

lack of other facts demonstrating an awareness and comprehension of his constitutional

rights, we cannot infer that [the defendant’s] prior experience in the criminal justice

system demonstrated his present knowledge and understanding of his rights.

[Citations.]” (Id. at pp. 697-698.) Although it is not an in-depth inquiry, the question of

the knowledge and voluntariness attributable to a defendant’s decision to waive a trial is

fact-dependent.




                                             6
       “[T]he standard of review . . . is whether the record affirmatively demonstrates

that the plea was voluntary and intelligent under the totality of the circumstances.”

(People v. Wash (1993) 6 Cal.4th 215, 268.) The trial court’s express and implied

findings must be upheld if supported by the record. (People v. Webb (1993) 6 Cal.4th

494, 531-532.) Here there is a clear record defendant was informed of his right to a trial

on the priors, and an implicit finding by the trial court that defendant was aware of and

understood his right to silence and confrontation.

       Counsel and the trial judge each told defendant that he had a right to go to trial

on his prior convictions:

       “[Defense Counsel]: [Defendant], I informed you that you have a right to a jury

trial with respect to your priors, that specifically—the alleged prior robbery convictions,

and you did inform me that you stipulate and you agree to have a bench trial, which

means the judge will try those convictions, correct?

       “Defendant: Yes.

       “The Court: All right. So you waive jury on that issue and—and agree that I can

hear whether or not there is a valid prior or not; is that correct?

       “Defendant: Yes, sir.”

       When defendant decided to waive the bench trial, the judge asked him on the

record if he understood the consequences of so doing:

       “[Defense Counsel]: I spoke to my client. He advised the court that he was

going to consent to a bench trial. I spoke to him today, and I believe he’s just going to

admit those strikes. So I just wanted to put several things on the record.


                                              7
       “The Court: Okay. Let’s do that.

       “[Defense Counsel]: [Defendant], I went through your convictions, all the

reports that came from the state of Georgia. I went through the elements of robbery

under the California Code and also the facts underlying your conviction in Georgia.

And you told me today that you just wanted to admit that the two convictions that you

have in Georgia were strikes under California law; is that correct?

       “Defendant: Yes.

       “The Court: All right. And you understand, [Defendant], what that means is that

your sentence is subject to being doubled because you have those strike priors? And

you understand that, your maximum sentence for your crime?

       “Defendant: Yes.

       “The Court: And with that in mind, you still want to admit those two priors?

       “Defendant: Yes. I want to get it over with.”

       Defendant clearly waived his right to a jury trial.

       Under Mosby, supra, this is a case involving an incomplete advisement of

Boykin-Tahl rights. In such cases, we look to the circumstances of the case to determine

whether or not defendant was likely aware of his other Boykin-Tahl rights. Here, as in

Mosby, defendant had just completed a trial where he did not testify and where his

counsel confronted his accusers through cross-examination. Defendant knew of and

exercised these rights.




                                             8
       The People note defendant pled guilty to the 2002 robbery and was likely given

at least the Boykin advisement of his rights. Because of that, and defendant’s additional

criminal history, the People argue defendant’s knowledge can be presumed. Defendant

asserts there was too great of a time gap between the current criminal charges and his

prior offenses to impute knowledge of his rights from those experiences with the

judicial system. Nine years passed since defendant’s last robbery conviction, and

defendant uses that fact to liken this case to Christian, supra, where there was a similar

gap.

       Christian, however, involved a plea to both the offense and the priors, which

meant that the defendant had not just completed trial. (Christian, supra, 125

Cal.App.4th at p. 697.) Defendant here was tried before a jury, and exercised both his

right to remain silent and, through his attorney, his right to confront and challenge the

evidence against him. Unlike in Christian, knowledge of these rights can be imputed to

defendant because of his recent utilization of them. Similarly, defendant’s argument

that the lack of information about whether his prior convictions were obtained by plea,

or through trial matters to assessing his level of knowledge about his rights, is

unpersuasive. Any significance they may have is dwarfed by the fact of his current

experience through trial. There is no doubt that defendant was aware of his rights to

remain silent and to confrontation of evidence against him despite the failure of the trial

court to specifically and expressly enumerate them.




                                             9
       We conclude that under the totality of the circumstances defendant voluntarily

and intelligently admitted his prior convictions despite being advised of and having

expressly waived only his right to a jury trial.

                                        DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                      MILLER
                                                                                        J.


We concur:


RICHLI
                        Acting P. J.


KING
                                   J.




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