Filed 8/19/20 P. v. Lopez CA2/6
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                         DIVISION SIX


 THE PEOPLE,                                                2d Crim. No. B299004
                                                         (Super. Ct. No. 2018026914)
      Plaintiff and Respondent,                               (Ventura County)

 v.

 EDWARD DAVID LOPEZ,

      Defendant and Appellant.



      Edward David Lopez appeals his conviction, by jury, of
driving under the influence of alcohol (DUI) in violation of
Vehicle Code section 23152, subdivision (a),1 driving with a blood
alcohol level of .08 percent or more (§ 23152, subd. (b))2, leaving

       All further statutory references are to the Vehicle Code
         1

unless otherwise noted.

        The DUI offenses of which appellant was convicted are
         2

lesser included offenses of the charged offenses: DUI causing
injury (§ 23153, subd. (a)) and driving with a .08% blood alcohol
causing injury. (§ 23153, subd. (b).)
the scene of an accident (§ 20001, subd. (a)), possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a)),
possession of drug paraphernalia (Health & Saf. Code, § 11364,
subd. (a)), and driving with a suspended license. (§ 14601.1,
subd. (a).) The trial court found appellant had one prior
conviction of DUI. It sentenced him to 16 months in any penal
institution plus a consecutive 120 days in jail. It also imposed
restitution fines totaling $2,100. (Pen. Code, §§ 1202.4, subd. (b),
1202.45.)
      Appellant contends his convictions of DUI must be reversed
because there is no substantial evidence he operated a vehicle on
a public highway and because the trial court failed to instruct the
jury on that element of the offenses. He further contends there is
no substantial evidence he possessed drug paraphernalia because
the police recovered from him only part of a broken
methamphetamine pipe. Appellant contends the trial court erred
when it found that he had admitted a prior DUI conviction
because the trial court did not advise him of his constitutional
rights or obtain a personal waiver of those rights. Finally,
appellant contends the trial court abused its discretion when it
declined to strike restitution fines based on his inability to pay.
We reverse the conviction on count 5, possession of drug
paraphernalia (Health & Saf. Code, §11364, subd. (a)), for
insufficiency of the evidence. We also reverse the prior conviction
finding. We remand the matter for resentencing. At
resentencing, the trial court shall consider whether to exercise its
discretion to reduce or waive the restitution fines. (Pen. Code,
§ 1202.4, subd. (c); People v. Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas).)




                                 2
                                FACTS
       Appellant drove a car on the roadway inside a storage
facility. Another patron of the storage facility had parked his
truck in the roadway and was standing next to it. As appellant
drove past, his car hit the man’s leg, causing an abrasion. The
man yelled at appellant, who stopped his car. When the man
reached appellant’s car, he noticed an open bottle on the back
seat that smelled like vodka. The two exchanged words.
Appellant drove away again. The man called 911.
       A Ventura police officer found appellant’s car in the facility,
but appellant was not inside it. An uncapped vodka bottle was
found on the back seat of the car. Appellant was eventually
found hiding under a trailer. He explained he was hiding
because the man he hit had friends who were looking for him.
Appellant smelled of alcohol and spoke slowly. His pupils were a
little dilated. The stem of a glass methamphetamine pipe was
found in his pocket. There was a white residue inside the stem.
Officers found a bag containing .29 grams of methamphetamine
under the trailer where he had been hiding. The man who called
911 identified appellant as the driver of the car that hit him. A
blood test showed that appellant had a blood alcohol content of
.137 percent.
                            DISCUSSION
       Driving on a Private Roadway. Appellant contends his
convictions of DUI and driving with a blood alcohol level of .08%
(§ 23152, subds. (a), (b)) are not supported by substantial
evidence because section 23152 applies only to driving on a public
road and he drove on a private road. The argument is without
merit.




                                  3
       The provisions of the Vehicle Code “refer exclusively to the
operation of vehicles upon the highways, unless a different place
is specifically referred to.” (§ 21001.) Section 23152, which
defines the DUI offenses of which appellant was convicted, is part
of chapter 12 of the Vehicle Code. Section 23100 defines the
application of chapter 12. It states, “The provisions of this
chapter apply to vehicles upon the highways and elsewhere
throughout the State unless expressly provided otherwise.” (Ibid.,
emphasis added.) The phrase “elsewhere throughout the State,”
is a specific reference to places other than highways, indicating
that the provisions of chapter 12 are not limited in their
application by section 21001.
       As the court explained in People v. Malvitz (1992) 11
Cal.App.4th Supp. 9, section 23100 means “that the provisions in
chapter 12 apply to vehicles anywhere they can be driven unless
the specific provision limits itself to a specific location.” (Malvitz,
supra, at p. 12.) Section 23152 thus “prohibits driving a vehicle
while under the influence of alcohol and/or drugs even though the
vehicle is driven only in an area not open to the general public.”
(Malvitz, at p. 10.)
       Section 23152 is not limited to driving on a public road.
There was substantial evidence that appellant violated the
statute by driving a vehicle while under the influence of alcohol.
There was no error.
       Instructional Error. Appellant contends that driving a
vehicle on a public highway is an essential element of the offense
of DUI and that the trial court erred when it failed to include
that essential element in its instructions to the jury. We reject
the contention for the reason we have already explained: section
23152 is not limited to driving on a public road.




                                  4
       Possession of Drug Paraphernalia. Ventura Police Officer
Nicholas Davy testified that, when he arrested appellant, he
found “the glass stem of a methamphetamine pipe” on appellant’s
person. The item was not, Officer Davy testified, a “full meth
pipe.” Officer Davy explained that, typically, a meth pipe has
both a glass stem and “a glass bulb[o]us end” with a hole at the
top. The item he recovered from appellant was missing the glass
bulbous end and “appeared to be broken.” Davy testified there
was a white residue inside the stem which he opined was left
over from when it was used to smoke methamphetamine.
       Appellant was convicted of possessing drug paraphernalia
in violation of Health & Safety Code, section 11364. The statute
provides, “It is unlawful to possess . . . any device, contrivance,
instrument, or paraphernalia used for unlawfully injecting or
smoking (1) a controlled substance . . . .” (Id., subd. (a).)
Appellant contends his conviction is not supported by substantial
evidence because the item found on his person was not
paraphernalia within the meaning of the statute. We agree.
       “In evaluating a claim regarding the sufficiency of the
evidence, we review the record ‘in the light most favorable to the
judgment below to determine whether it discloses substantial
evidence — that is, evidence which is reasonable, credible, and of
solid value — such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ [Citation.]” (People
v. Westerfield (2019) 6 Cal.5th 632, 713.) We also presume in
support of the judgment the existence of every fact the trier of
fact could reasonably infer from the evidence. (People v. Lindberg
(2008) 45 Cal.4th 1, 27.)
       Applying those standards requires us to conclude the
conviction is not supported by substantial evidence. A




                                5
methamphetamine pipe is drug paraphernalia within the
meaning of Health & Safety Code section 11364. But the object
appellant possessed was not a pipe. It was a piece of a broken
pipe. There was no evidence the broken stem could itself be used
to ingest a controlled substance. A reasonable jury could find
that appellant possessed part of a broken meth pipe. There is,
however, no factual basis supporting an inference that the broken
pipe stem could be “used for unlawfully . . . smoking . . . a
controlled substance . . . .” (Id., subd. (a).) The broken pipe stem
was not drug paraphernalia within the meaning of the statute.
As a consequence, appellant’s conviction on count 5, for violating
Health & Safety Code section 11364, is not supported by
substantial evidence and must be reversed.
       Admission of Prior Conviction. Appellant contends the trial
court did not advise him of his constitutional rights before
accepting his admission that he had suffered a prior DUI
conviction. The admission was therefore not knowing and
intelligent and must be set aside. Respondent contends the
record taken as a whole supports a reasonable inference that
appellant understood the constitutional rights he was waiving.
We are not convinced.
       The question of appellant’s prior DUI conviction arose three
separate times during his brief trial. Before jury selection, the
trial court asked appellant’s counsel whether appellant wanted a
jury trial on the prior conviction allegation. The transcript
reflects that appellant and his trial counsel “conferred sotto
vo[i]ce.” Counsel then stated, “We’re prepared to waive jury on
the prior.” After the trial court was reminded by the prosecutor
that a personal waiver would be required, the trial court agreed
and indicated it would take the waiver “at the appropriate time.”




                                 6
       Once the trial ended and the jury began its deliberations,
the court again asked defense counsel, “is jury waived on the
special allegations assuming we get that far?” Counsel replied,
“Your Honor, I believe we did, but we do waive jury.” The court
replied, “Okay. All right. Excellent.” Although appellant was
present in the courtroom, the trial court did not address him
directly, explain to him what it meant to “waive jury,” or obtain a
personal waiver from him.
       After the jury returned its verdict and had been excused,
the trial court again asked, “Oh, the priors? What do we do with
the [priors]?” The prosecutor replied, “So I know the defendant
waived trial on it.” The trial court answered, “Waived jury.” It
then asked defense counsel, “Do you want to stipulate to the
priors? Do you want . . . a bench trial on the priors?” Defense
counsel replied, “Mr. Lopez is prepared to admit the priors.” The
court accepted that representation and concluded, “So the priors
are admitted.” Again, although appellant was present in the
courtroom, the trial court did not explain the waiver to him or
address him directly. Appellant did not speak at all.
       Appellant did speak, briefly, immediately before the
defense rested its case, when the trial court asked whether
appellant wanted to exercise his right to testify. It informed him,
“[Y]ou understand you have a constitutional right not to testify in
this case, but it is your decision as to whether you want to testify
or not. Your attorney cannot tell you what to do. He can give you
advice on the subject and you can choose to follow his advice or
not follow his advice, but the decision is entirely yours. [¶] So
knowing that, is it your desire to waive your right to testify and
not testify in this case?” Appellant replied, “Yes, it is, your
Honor.”




                                 7
       The parties agree that, before declaring the prior conviction
allegation admitted, the trial court did not expressly list the
constitutional rights appellant would be waiving by the
admission. They also agree appellant did not personally state
that he waived trial or admitted the prior conviction allegation.
       “[B]efore accepting a criminal defendant’s admission of a
prior conviction, the trial court must advise the defendant and
obtain waivers of (1) the right to a trial to determine the fact of
the prior conviction, (2) the right to remain silent, and (3) the
right to confront adverse witnesses. [Citation.] Proper
advisement and waivers of these rights in the record establish a
defendant’s voluntary and intelligent admission of the prior
conviction. [Citations.]” (People v. Mosby (2004) 33 Cal.4th 353,
356 (Mosby).) Where, as here, the transcript reveals that the
trial court did not advise the defendant of each of these rights or
obtain the defendant’s personal waiver of them, “the reviewing
court must examine the record of ‘the entire proceeding’ to assess
whether the defendant’s admission of the prior conviction was
intelligent and voluntary in light of the totality of circumstances.”
(Id. at p. 361.)
       This totality of the circumstances test “applies in all
circumstances where the court fails, either partially or
completely, to advise and take waivers of the defendant’s trial
rights before accepting a guilty plea.” (People v. Farwell (2018) 5
Cal.5th 295, 303 (Farwell).) However, as the court explained in
Farwell, “It bears emphasis that silent record cases will face their
own practical hurdle. The failure to advise a defendant of any
trial rights will make it much harder to demonstrate a plea was
properly accepted. Under [People v.] Howard [(1992) 1 Cal.4th
1132, (Howard),] the record must ‘affirmatively show[ ]’ that the




                                 8
defendant’s waiver of constitutional rights was voluntary and
intelligent. [Citation.]” (Id. at p. 306.)
       Respondent urges us to infer appellant made a knowing
and intelligent waiver based on the following: appellant’s jury
trial on the substantive offenses had just concluded; he was
advised of his right to testify about the substantive offenses and
personally waived it; appellant was present when his counsel
waived jury trial on the prior conviction allegation; the record
reflects counsel conferred with appellant before waiving jury
trial; and appellant had prior convictions, so he had some
knowledge of his right to trial and understood the terms
“verdict,” and “conviction.” These facts establish that appellant
was familiar with jury trials on substantive offenses. They do not
establish that he knew his right to trial extended separately to
the prior conviction allegation. The trial court never advised
appellant of that fact. In addition, appellant never personally
uttered a single word indicating he understood and agreed with
counsel’s waiver of his trial rights or his admission of the prior
conviction. Under these circumstances, we cannot say the record
“affirmatively shows that defendant’s admission of the prior
conviction constituted a knowing and voluntary waiver of his
constitutional rights.” (Howard, supra, 1 Cal.4th at p. 1179.)
       Respondent’s reliance on Mosby, supra, 33 Cal.4th 353, is
misplaced. In Mosby, the trial court asked the defendant directly
if he understood that admitting the prior conviction allegation
would make him ineligible for probation, that he had a right to a
jury trial on the allegation and that he had a right to a court trial
on the allegation. The defendant personally stated he understood
each of those rights and waived trial on the allegation. He then
personally admitted the prior conviction. (Id. at pp. 357-359.)




                                 9
Here, by contrast, the trial court never asked appellant directly if
he understood any of his trial rights, whether he agreed with
counsel’s waiver of trial, or whether he personally admitted the
prior conviction. Unlike the defendant in Mosby, appellant never
personally waived any right or made any admission. We cannot
infer a knowing and intelligent waiver from the silence of both
the trial court and appellant.
       The failure to advise appellant of any trial rights requires
reversal of the prior conviction finding. (Farwell, supra, 5
Cal.5th at p. 308; People v. Cross (2015) 61 Cal.4th 164, 180.)
However, “when reversible error occurs during the sentencing
phase of a criminal proceeding, reversing the judgment as to the
sentence only is generally appropriate.” (People v. Lightsey
(2012) 54 Cal.4th 668, 703; see also People v. Monge (1997) 16
Cal.4th 826 [state and federal double jeopardy protections do not
bar retrial of prior conviction allegation in noncapital case].) We
therefore vacate the sentence, and remand for retrial of the prior
conviction allegation and for resentencing. (People v. Fielder
(2004) 114 Cal.App.4th 1221, 1234.)
       Restitution. At sentencing, defense counsel asked the trial
court to waive all fines and fees based on appellant’s inability to
pay. The trial court waived the Criminal Justice Administrative
fee of $543.48 and the presentence investigation fee of $2000. It
declined to impose any victim restitution because the victim had
testified he suffered no monetary damages. But the trial court
declined to waive the restitution fine (Pen. Code, § 1202.4) or the
parole revocation restitution fine (Pen. Code, §1202.45). Both
appellant’s trial counsel and the court stated they were unsure
whether the court had authority to waive those fines. The trial
court imposed two $1050 restitution fines and told appellant's




                                 10
trial counsel, “if you come up with something for me to consider,
I'll reconsider.”
        Appellant contends the trial court abused its discretion
when it declined to strike the restitution fines. Dueñas, supra, 30
Cal.App.5th at p. 1169, explains its constitutional and statutory
authority to do so. Respondent contends imposition of the
restitution fine was not unconstitutional but agrees the case
should be remanded to permit the trial court to exercise its
discretion to retain the fines or reduce them based on appellant’s
inability to pay. We agree.
        Penal Code section 1202.4, subdivision (b) provides, “In
every case where a person is convicted of a crime, the court shall
impose a separate and additional restitution fine, unless it finds
compelling and extraordinary reasons for not doing so and states
those reasons on the record.” The amount of the fine is set “at
the discretion of the court,” but where, as here, the defendant is
convicted of a felony, “the fine shall be not less than three
hundred dollars ($300) . . . .” (Id., subd. (b)(1).) Inability to pay
may be considered by the trial court in determining whether to
impose a fine greater than the statutory minimum. (Id., subd.
(c).) Penal Code section 1202.45 requires the trial court to impose
and stay a parole revocation restitution fine in the same amount
as that imposed under section 1202.4. (§1202.45, subd. (a).)
        The trial court failed to exercise its statutory authority to
reduce the restitution fines based on appellant’s indigency. We
remand the matter to permit the trial court to exercise its
discretion in this regard.
                             DISPOSITION
        The judgment on count 5, possession of drug paraphernalia
in violation of Health & Safety Code section 11364, subdivision




                                 11
(a), is reversed for insufficiency of the evidence. The true finding
on the prior conviction allegation is also reversed. The matter is
remanded to the trial court for retrial on that allegation and for
resentencing. At the resentencing hearing, the trial court shall
consider whether to reduce or waive the restitution fines
imposed. After resentencing, the trial court shall prepare an
amended abstract of judgment and send a certified copy to the
Department of Corrections and Rehabilitation.
        NOT TO BE PUBLISHED.



                                                  YEGAN, J.


We concur:


             GILBERT, P. J.


             PERREN, J.




                                 12
                       Ben Coats, Judge

               Superior Court County of Ventura

                ______________________________


     Laurie A. Thrower, under appointment by the Court of
Appeal, for Defendant and Appellant.

      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Chung L. Mar, Michael Katz,
Deputy Attorneys General, for Plaintiff and Respondent.
