Filed 8/5/14 P. v. Brown CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO


THE PEOPLE,                                                          B250551

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA396766)
         v.

DEANDRE JERROD BROWN,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. C. H.
Rehm, Jr., Judge. Affirmed with directions.


         James Koester, 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, Margaret E. Maxwell and Eric E.
Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.




                                        _________________________
       The People filed an information charging appellant Deandre Jerrod Brown with
one count of possession of a weapon while in custody (Pen. Code, § 4502, subd. (a)),1 a
felony. The information alleged that appellant had suffered a prior juvenile adjudication
of robbery in 1997 (a prior strike) (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and
had served two prior prison terms (§ 667.5, subd. (b)).
       Pursuant to plea negotiations, the information was amended to add a violation of
section 4502, subdivision (b), attempted manufacture or possession of a weapon while in
custody, also a felony. Appellant pled guilty to the amended count two. Count one and
the prior prison allegations were dismissed on the People’s motion. Following a court
trial, the prior juvenile adjudication was found to be true.
       Appellant was sentenced to a total of 16 months in state prison (consisting of the
midterm of eight months doubled because of the prior strike), to be served consecutively
to the sentence previously imposed in another case numbered BA393566.
       Appellant contends that the trial court erred in failing to conduct an evidentiary
hearing regarding the constitutional validity of his admission to the alleged charge in the
prior juvenile case. We disagree, but we direct the trial court to correct the abstract of
judgment to reflect appellant’s presentence custody credit.
                                          FACTS
       Because appellant entered a guilty plea here and the underlying facts are not at
issue, we only briefly offer this summary: On April 7, 2011, Los Angeles County
Sheriff’s Deputy Brandon Longoria was working at the Los Angeles County jail, where
appellant was an inmate. Deputy Longoria found a comb with a razor blade attached to
its bristles in appellant’s cell. Appellant admitted that the comb and razor were his and
said that he used it to cut his hair. According to Deputy Longoria, combs with razors
attached to the bristles were commonly used as slashing devices by inmates.




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

                                              2
                                      DISCUSSION
I. The Trial Court Was Not Required to Conduct an Evidentiary Hearing on the
Validity of Appellant’s Admission in the Prior Juvenile Case
       Appellant contends that the trial court erred by failing to conduct an evidentiary
hearing on the constitutional validity of his admission in the prior juvenile case.
Specifically, he claims that the prior juvenile adjudication cannot be used as a strike to
enhance his current sentence because the record in the juvenile case is silent as to
whether he was advised of his right to a contested jurisdictional hearing (or trial) before
the juvenile court accepted his admission.
       A. Relevant Proceedings
       Appellant, in propria persona, filed a motion to strike his prior juvenile
adjudication for robbery on the ground that the adjudication was invalid because the
record did not show that he was advised of his constitutional right to a trial before the
juvenile court accepted his admission to the charged offense. The instant trial court held
a bench trial on the issue. The prosecution introduced documents reflecting that appellant
suffered a prior juvenile adjudication for robbery in 1997. Defense counsel
acknowledged that the minute order in the juvenile case stated that appellant was advised
of and waived his constitutional rights to confront witnesses, the privilege against self-
incrimination, and the right to compel the attendance of witnesses, but argued that the
adjudication was not a valid strike because the minute order failed to reflect that appellant
had been advised of his right to a trial and that he had waived that right. The trial court
took the matter under submission, found that the adjudication was a valid strike, and
proceeded to sentencing without conducting a full evidentiary hearing on the issue.
       B. Applicable Law
       Prior felony convictions are often used to “increase the sentences meted out to
criminal defendants.” (People v. Allen (1999) 21 Cal.4th 424, 428 (Allen).) But a trial
court may not use a prior conviction to enhance a sentence if that prior conviction was
obtained in violation of the defendant’s constitutional rights. (Id. at p. 429.) The United
States Supreme Court has explained that before a defendant can enter a guilty plea to a

                                              3
crime, the defendant must knowingly and intelligently waive the constitutional right to a
jury trial, the right to confront witnesses, and the privilege against self-incrimination.
(Boykin v. Alabama (1969) 395 U.S. 238, 243 (Boykin).) In In re Tahl (1969) 1 Cal.3d
122, 132 (Tahl), the California Supreme Court elaborated on Boykin by holding that the
constitutional rights mentioned in that case together with the right to counsel must be
specifically and expressly enumerated and waived by an accused before he enters a guilty
plea, and that this waiver must appear on the face of the record.
         It is well established that a defendant may collaterally challenge a prior conviction
at the trial on his current offenses by moving to have the prior conviction stricken on the
ground that his Boykin-Tahl rights were violated. (People v. Sumstine (1984) 36 Cal.3d
909, 918–919 (Sumstine).) However, to obtain an evidentiary hearing on such a motion
to strike, it is “not enough for [the defendant] to allege that the record of his prior
conviction is silent regarding those rights.” (Sumstine, supra, at p. 914.) Rather, the
defendant “must affirmatively allege that at the time of his prior conviction he did not
know of, or did not intelligently waive, such rights.” (Ibid.; Allen, supra, 21 Cal.4th at
pp. 438–440.) Thus, a defendant may not merely rely on a silent record, but must plead
and prove he was actually unaware of his rights and that he would not have pleaded
guilty had he known those rights. (People v. Soto (1996) 46 Cal.App.4th 1596, 1605–
1606.)
         When a defendant brings a motion to strike and sufficiently alleges a constitutional
Boykin-Tahl rights violation, the trial court must hold an evidentiary hearing. (Sumstine,
supra, 36 Cal.3d at p. 914.) At the hearing, the prosecution first bears the burden of
making a prima facie showing that the defendant suffered the prior conviction. (Id. at
p. 923.) Once that showing is made, the burden shifts to the defendant to produce
evidence demonstrating a violation of the Boykin-Tahl constitutional requirements.
(Ibid.) If the defendant meets this burden, the prosecution has the right to rebut the
defendant’s showing. (Ibid.) The trial court must then determine, in light of the totality
of the circumstances, whether the defendant’s prior plea constituted a knowing and



                                               4
intelligent waiver of his constitutional trial rights. (People v. Howard (1992) 1 Cal.4th
1132, 1175.)
       C. Analysis
       There is no dispute here that appellant suffered a prior juvenile adjudication for
robbery.2 The dispute is whether he was entitled to an evidentiary hearing on the
constitutional validity of his admission to the robbery charge in the juvenile case.
“Applying the rules established by Sumstine and its progeny, it is apparent [appellant]
failed to carry his burden of proof on this issue.” (People v. Soto, supra, 46 Cal.App.4th
at p. 1606.)
       Appellant failed to allege facts sufficient to justify a hearing on his motion to
strike the prior adjudication. Appellant’s motion to strike his prior adjudication merely
asserted that “the record was silent as to whether the defendant knowingly and
[voluntarily] waived [his constitutional] rights.” Appellant’s declaration attached to the
motion did not address whether he was advised of and waived the right to trial.
Appellant’s motion and defense counsel’s later argument both solely relied on the
argument that the record was silent as to whether appellant waived his right to a contested
adjudication hearing. Appellant did not allege that the juvenile court never advised him
of his right to a bench trial. Nor did appellant allege that he did not know of, or did not
intelligently waive, his right to trial or that he would not have admitted the robbery
allegation had he been advised of such right. Because appellant did not affirmatively
allege that at the time of his prior adjudication he did not know of, and did not voluntarily
waive, his right to trial, he was not entitled to an evidentiary hearing on the validity of his
admission in the juvenile case.




2
       The Boykin-Tahl rules, absent the right to a jury trial, are applicable to juvenile
adjudications. (In re Ronald E. (1977) 19 Cal.3d 315, 321; In re Regina N. (1981) 117
Cal.App.3d 577, 582–583.)

                                               5
       Appellant points out that during the bench trial the prosecutor mistakenly asserted
that the issue of the constitutional validity of appellant’s admission had to be decided by
the juvenile court that made the adjudication. He claims that the trial court impliedly
adopted this incorrect statement of the law in denying him an evidentiary hearing. Even
if this were true, we review a trial court’s ruling and not its reasoning. (Whyte v. Schlage
Lock Co. (2002) 101 Cal.App.4th 1443, 1451.) The ruling was correct because appellant
did not meet his burden of obtaining an evidentiary hearing.3
II. The Abstract of Judgment Must be Corrected to Reflect Appellant’s Presentence
Custody Credits
       Appellant contends, and the People concede, that the abstract of judgment fails to
reflect his presentence custody credits. The abstract of judgment reflects the sentence of
nine years four months imposed in prior case No. BA393566. In the BA393566 case,
appellant was awarded a total of 350 days of presentence custody credit. Since the
abstract of judgment includes both that case and the instant case, it should be corrected to
include appellant’s presentence custody credit.




3
       Appellant also contends that his prior juvenile adjudication cannot be used to
enhance his sentence because he was not entitled to have a jury determine the facts
underlying the commission of the adjudicated offense. Appellant acknowledges that the
California Supreme Court rejected this contention in People v. Nguyen (2009) 46 Cal.4th
1007, 1028, and that we are bound by this decision. Accordingly, we do not address his
contention here.

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                                    DISPOSITION
      The trial court is directed to correct the abstract of judgment by including
appellant’s presentence custody credit of 350 days and to forward a corrected copy to the
Department of Corrects and Rehabilitation. In all other respects, the judgment is
affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                  _____________________________, Acting P. J.
                                        ASHMANN-GERST


We concur:



______________________________, J.
           CHAVEZ



______________________________, J.*
           FERNS




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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