Filed 8/13/14 P. v. Navarro CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039681
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS120081)

         v.

JAVIER CORTEZ NAVARRO,

         Defendant and Appellant.



         A jury convicted defendant Javier Cortez Navarro of infliction of corporal injury
on a spouse or cohabitant (Pen. Code,§ 273.5, subd. (a))1 and found true the allegation
that he had suffered a prior conviction for the same offense (§ 273.5, subd. (e)(1)). The
jury also convicted defendant of contempt of court for violating a restraining order
(§ 166, subd. (c)(1)) and found true the allegation that the defendant had suffered a prior
conviction of contempt of court for violating a restraining order (§ 166, subd. (c)(4)).
Defendant was convicted of four misdemeanor counts of contempt of court for violating a
restraining order (§ 166, subd. (c)(1)). In a bifurcated proceeding, the trial court found
true the allegations that defendant had suffered a prior “strike” conviction (§§ 667,
subds. (b)–(i), 1170.12) and had served two prior prison terms (§ 667.5, subd. (b)). The
trial court sentenced defendant to state prison for nine years and four months.

1
      All undesignated statutory references are to the Penal Code in effect at the time of
defendant’s crimes.
                                                             1
       On appeal, defendant contends: (1) CALCRIM No. 852 erroneously states the
evidentiary inference to be made under Evidence Code section 1109 and violates due
process because it diminishes the prosecution’s burden of proving guilt; (2) there was an
invalid finding of prior convictions under sections 273.5, subdivision (e)(1) and 166,
subdivision (c)(4); and (3) the trial court erred in imposing a $10 fine. We conclude that
the trial court erred when it failed to advise defendant of his constitutional rights and the
consequences of the defense stipulation that he had previously been convicted of
sections 273.5 and 166. We reverse the judgment and remand the case for further
proceedings as to these prior conviction allegations. We also order the trial court to strike
the $10 fine.


                                    I. Statement of Facts
                                     A. Prosecution Case
       Jane Doe, defendant’s wife, testified that on January 12, 2012, defendant called
her from jail early in the morning and asked her to pick him up. Doe initially testified
that she told him that she would not pick him up and that he was in violation of a
restraining order. However, she later testified that she lied to defendant and told him that
she had presents for him and that she and Lilliana Guerrero would pick him up. She did
not mention the restraining order to him.2 Doe also testified that she did not pick up
defendant from jail.
       Doe testified that she did not call Guerrero after defendant called her on
January 12, 2012. However, Doe also testified that she called Guerrero and left a
message in which she asked her to pick defendant up from jail. Doe denied telling
Guerrero that she was going to get defendant “locked up.”


2
      A tape recording of the telephone call from jail between defendant and Doe was
played for the jury.
                                              2
       Doe testified that defendant knocked on her door between 1:30 p.m. and 2:00 p.m.
on January 12, 2012, and she asked him, “What are you doing here?” When defendant
walked in, she told him to leave because she was going to call his probation officer and
the police. Defendant then tried to pull a ring off of her finger, but he was unable to do
so. Her finger was bruised. Defendant also grabbed her arms and bruised them.
Defendant eventually threw some papers at Doe and left.
       Doe did not immediately contact the police on January 12, 2012, because
defendant was going to a program and she believed that he would not return. She also
still cared for defendant and believed that he could change. Between January 12 and
January 17, 2012, defendant called Doe at least three times. As a result of defendant’s
calls, Doe decided to contact the police on January 17 about defendant’s conduct on
January 12, 2012. Officer Alex Zamora was dispatched to Doe’s apartment. He
observed bruising on the back of her arms and bruising on her ring finger. He also took
photos of her injuries and listened to a voice mail message.
       The prosecution introduced evidence of defendant’s other acts of domestic
violence. On January 4, 2011, there was a restraining order against defendant. However,
Doe and defendant were together that day and began arguing because defendant did not
have a job. Defendant grabbed Doe’s arms, shook her, pulled her hair, and knocked her
down. Doe reported the incident to the police that day. When Officer Kevin Mead
arrived at Doe’s apartment, he observed injuries on her arms.
       On November 29, 2011, defendant arrived at Doe’s residence and they argued
over car keys. She attempted to call the police, but defendant “unplugged” the phone.
Officer Yolanda Rocha was dispatched to Doe’s apartment in response to a “hang up”
911 call and contacted Doe. When Officer Rocha arrived, she observed that the phone
was not damaged because Doe was using it. The officer learned that Doe had a
restraining order against defendant and observed that defendant was present in the


                                             3
apartment. After waiving his Miranda3 rights, defendant told the officer that he was there
to say hi to Doe and that he was aware of the restraining order. Defendant was arrested
for violation of the restraining order.
       Alexandra McCabe testified as an expert on domestic violence. She explained that
there is commonly a “cycle of violence” in domestic violence cases. This cycle includes:
the “honeymoon” period; a period in which victims experience tension or hostility from
their partners; and an incident of violence. Victims of domestic violence return to their
abusers an average of seven times. Victims stay in these relationships for a variety of
reasons: love, cultural barriers, lack of support, religious beliefs, batterers’ promises to
reform, and fear. Batterers control their victims by isolating them from their families and
friends, by exerting economic control, or by threatening them. Many victims “tend to
report things late, not at all, or minimize.” Victims frequently talk about the batterers’
bad childhood or their being under pressure. Victims who have protective orders against
their batterers often allow them to have contact.
       The parties stipulated that on December 8, 2011, defendant was convicted of
disobeying a court order in violation of section 166, subdivision (c)(1), and that on
February 9, 2011, he was convicted of inflicting corporal injury on a spouse in violation
of section 273.5.


                                          B. Defense Case
       Guerrero, Doe’s neighbor, testified that on January 11, 2012, Doe reminded
Guerrero that she had agreed to go with Doe to pick up defendant from jail the next day.
Doe also called Guerrero around 4:00 a.m. the following day and asked whether she was
ready to pick up defendant. About an hour later, Guerrero drove Doe and her two
daughters to the jail, picked up defendant, and drove them back home. They arrived


3
       Miranda v. Arizona (1966) 384 U.S. 436.
                                               4
home around 6:00 a.m. or 6:30 a.m. Guerrero also drove Doe and defendant to the
welfare office sometime after 12:00 p.m. that same day. During the drive, Guerrero
noticed that both defendant and Doe had marks on their necks. Doe and defendant spent
about 15 to 30 minutes at the welfare office.
       Sometime between January 12 and 17, 2012, Doe told Guerrero that she intended
to get defendant “locked up.” Guerrero was convicted of embezzlement in 2008.
       A Department of Social Services document in defendant’s name had a date stamp
of “January 12, 2012” on it, and a receipt for the document was issued at 1:40 p.m. on
January 12. The “1:40 p.m.” stamp indicated the time that the document was logged in,
and not necessarily the time that defendant was present at the Department of Social
Services.
       Michael Robles, a retired social worker, knew defendant and Doe from his church.
He had seen defendant and Doe together at a bible study group six or seven times in
2011. At approximately 11:00 a.m. on January 12, 2012, Robles was sitting in the lobby
of the welfare office when defendant and Doe walked into the building. They spoke with
Robles for about 30 minutes and both seemed happy. Both defendant and Doe had
“hickies” on their necks. Doe told Robles that defendant had been released from jail that
morning and they were there to reinstate his food stamps.


                                        II. Discussion
                                   A. CALCRIM No. 852
       Defendant contends that the trial court erred when it instructed the jury pursuant to
CALCRIM No. 852 that the jury could consider evidence of uncharged domestic
violence for disposition.
       Here, the trial court instructed the jury pursuant to CALCRIM No. 852 as follows:




                                                5
       “The People presented evidence that the defendant committed domestic violence
that was not charged in this case. Specifically, incidents described by Jane Doe during
her testimony as occurring on January 4, 2011 and November 29 of 2011.
       “Domestic violence means abuse committed against an adult who is a spouse.
Abuse means intentionally or recklessly causing or attempting to cause bodily injury or
placing another person in reasonable fear of imminent serious bodily injury to himself or
herself or to someone else.
       “You may consider this evidence only if the People have proved by a
preponderance of the evidence that the defendant in fact committed the uncharged
domestic violence.
       “Proof by a preponderance of the evidence is a different burden of proof than
proof beyond a reasonable doubt. A fact is proved by preponderance of the evidence if
you can conclude that it is more likely than not that the fact is true.
       “If the People have not met this burden of proof, you must disregard this evidence
entirely. If you decide that the defendant committed the uncharged domestic violence,
you may, but are not required to conclude from that evidence that the defendant was
disposed or inclined to commit domestic violence and, based on that decision, also
conclude that the defendant was likely to commit and did commit corporal injury on a
spouse as charged here.
       “If you conclude that the defendant committed the uncharged domestic violence,
that conclusion is only one factor to consider along with all the other evidence. It is not
sufficient by itself to prove that the defendant is guilty of corporal injury to a spouse.
The People must still prove each charge beyond a reasonable doubt.
       “Do not consider this evidence for any other purpose except for the limited
purpose that I just described, as well as proof of the prior convictions for corporal injury
on a spouse as alleged in the special allegation related to Count Number 1 and proof of


                                               6
the prior conviction for a violation of a court order as alleged in the special allegation
related to Count 3.”
       Though defendant did not object to this instruction, section 1259 permits this court
to “review any instruction given, . . . even though no objection was made thereto in the
lower court, if the substantial rights of the defendant were affected thereby.” We will
review the merits of defendant’s challenge to CALCRIM No. 852.
       Defendant argues that CALCRIM No. 852 misstated the evidentiary inference to
be made under Evidence Code section 1109. He claims that “[a]lthough the statute
simply states the evidence is not inadmissible under Evidence Code section 1101, the
instruction goes further, directing the jury that it may draw an inference that the
‘defendant was disposed or inclined to commit domestic violence.’ ”
       “Statutory construction begins with the plain, commonsense meaning of the words
in the statute, ‘ “because it is generally the most reliable indicator of legislative intent and
purpose.” ’ [Citation.] ‘When the language of a statute is clear, we need go no further.’ ”
(People v. Manzo (2012) 53 Cal.4th 880, 885.)
       Evidence Code section 1109, subdivision (a)(1) states that “. . . in a criminal action
in which the defendant is accused of an offense involving domestic violence, evidence of
the defendant’s commission of other domestic violence is not made inadmissible by
Section 1101 if the evidence is not inadmissible pursuant to Section 352.” Evidence
Code section 1101 provides in relevant part: “Except as provided in this section and in
Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or
her character (whether in the form of an opinion, evidence of reputation, or evidence of
specific instances of his or her conduct) is inadmissible when offered to prove his or her
conduct on a specified occasion.” Though Evidence Code section 1109 does not refer to
disposition, when this instruction is read together with Evidence Code section 1101, it
authorizes the admission of evidence of the defendant’s commission of other domestic


                                               7
violence to prove his or her conduct on a specific occasion, that is, his or her disposition
to commit the charged offense.
        Evidence Code section 1109 does not violate a defendant’s right to due process.
(People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096.) Given that Evidence Code
section 1109 authorizes the admission of evidence of prior acts of domestic violence to
show disposition, the issue then becomes how the jury may use such evidence in
determining the defendant’s culpability of the charged offenses without violating his or
her due process rights.
        In People v. Reliford (2003) 29 Cal.4th 1007 (Reliford), the California Supreme
Court approved CALJIC No. 2.50.01, which is analogous to CALJIC No. 2.50.02, the
prior instruction on Evidence Code section 1109 evidence. The instructions are identical
except CALJIC No. 2.50.01 refers to “sexual offense” and CALJIC No. 2.50.02 refers to
“domestic violence.” In Reliford, the court held that CALJIC No. 2.50.01 correctly stated
the law regarding the limited purpose for which the jury may consider the prior offenses
and the prosecution’s burden of proof. (Reliford, at pp. 1012–1013, 1016.) Courts of
Appeal have determined that Reliford applies to CALCRIM No. 852. (People v. Johnson
(2008) 164 Cal.App.4th 731, 740-741; People v. Reyes (2008) 160 Cal.App.4th 246, 252-
253.)
        Defendant acknowledges that Reliford concluded that disposition is a reasonable
inference from the evidence of other acts of domestic violence, but he claims that “it is
not the only inference that the jury can make from the evidence, and it may make other
inferences from [Evidence Code] section 1109 evidence without finding it probative to
disposition.” Defendant does not identify what other inferences might have been drawn
from the domestic violence evidence in the present case. In any event, CALCRIM
No. 852 merely instructs the jury that it “may” draw an inference of a defendant’s
disposition to commit domestic violence and, based on that decision, that he was likely to


                                              8
commit the charged offense of corporal injury on a spouse. The use of “may” indicates
to the jury that it was free to draw other inferences from this evidence.
       Relying on People v. James (2000) 81 Cal.App.4th 1343 (James), defendant
contends that the instruction proposed in James “better tracks the language of Evidence
Code section 1109 and does not draw undue emphasis on the defendant’s disposition.” In
James, the trial court gave the pre-1999 version of CALJCI No. 2.50.02. (James, at
pp. 1349-1350.) James found error in instructions “suggesting that a defendant’s prior
offenses may be sufficient to convict him of the charged crime.” (James, at pp. 1353,
1363.) We first note that no such infirmity is present in CALCRIM No. 852, which
instructs the jury that if it concluded that the defendant committed the uncharged
domestic violence, this was “only one factor to consider along with all the other
evidence” and was “not sufficient by itself to prove that the defendant [was] guilty” of
the charged offense. (CALCRIM No. 852.)
       Defendant also cites to dicta in a footnote in James, supra, 81 Cal.App.4th 1343 in
which the Court of Appeal acknowledged that the 1999 amended version of CALJIC
No. 2.50.01 was “an improvement” over the earlier version, but it went on to opine that
“to the degree it still suggests other offense evidence is relevant only to infer guilt from
propensity, we believe the instruction simultaneously overstates and unduly limits the use
of such evidence. The Falsetta court acknowledged that other crimes evidence may be
considered for a variety of purposes ‘such as establishing defendant’s motive, intent, or
identity (if those issues remain contested), or bolstering the young victim’s credibility.’
[Citation.] We believe an instruction in general terms would be more appropriate,
leaving particular inferences for the argument of counsel and the jury’s common sense.
At a minimum, deleting the words ‘and did commit’ from the standard instruction would
remedy many of the concerns addressed above.” (James, at p. 1357, fn. 8.) This dicta
lacks precedential value (see e.g., People v. Macias (1997) 16 Cal.4th 739, 743) and at
most criticizes the instruction rather than invalidating it. Thus, though the commentary to
                                              9
CALCRIM No. 852 references both the James rationale and its proposed alternative
language, we are not persuaded that the trial court erred in instructing the jury pursuant to
CALCRIM No. 852. Since CALCRIM No. 852, as given in the present case, expressly
limits how the jury may consider other evidence of domestic violence, we find no due
process violation.
       Defendant also argues that CALCRIM No. 852 violated due process, “because it
diminished the prosecution’s burden of proving guilt of the charge[d] crimes beyond a
reasonable doubt.” As previously stated, Reliford, supra, 29 Cal.4th at pp. 1012-1015
rejected the defendant’s contention that CALJIC No. 2.50.01 was “ ‘likely to mislead the
jury concerning . . . the prosecution’s burden of proof.’ ” This court is bound by Reliford.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)


                        B. Validity of Findings of Prior Convictions
       Defendant next contends that the trial court erred by failing to advise him of his
Boykin-Tahl4 rights prior to accepting the stipulation that he had suffered prior
convictions within the meaning of sections 273.5, subdivision (e)(1) and 166,
subdivision (c)(4).
       Here, the prosecution charged defendant in count one of infliction of corporal
injury on a spouse or cohabitant (§ 273.5, subd. (a)). A conviction for violating
section 273.5, subdivision (a) is punishable “by imprisonment in the state prison for two,
three, or four years, or in a county jail for not more than one year, or by a fine of up to six
thousand dollars ($6,000) or by both that fine and imprisonment.” The prosecution also
alleged that defendant had a prior conviction on February 9, 2011, for the same offense
pursuant to section 273.5, subdivision (e)(1). A defendant who is convicted of violating
section 273.5, subdivision (a) “within seven years of a previous conviction under

4
      Boykin v. Alabama (1969) 395 U.S. 238 (Boykin) and In re Tahl (1969) 1 Cal.3d
122 (Tahl).
                                              10
subdivision (a) . . . shall be punished by imprisonment in a county jail for not more than
one year, or by imprisonment in the state prison for two, four, or five years, or by both
imprisonment and a fine of up to ten thousand dollars ($10,000).” (§ 273.5, subd. (e)(1).)
          The prosecution charged defendant in count three of contempt of court for
violating a restraining order after a conviction involving an act of violence (§ 166,
subd. (c)(4)). It was also alleged that defendant had been convicted of violating section
166, subdivision (c)(1) within seven years of the charged offense. A conviction for
violating section 166, subdivision (c)(1) is a misdemeanor which is “punishable by
imprisonment in a county jail for not more than one year, by a fine of not more than one
thousand dollars ($1,000), or by both that imprisonment and fine.” When a defendant is
convicted of violating section 166, subdivision (c)(1), within seven years of an identical
conviction, and the second or subsequent conviction involves an act of violence or “ ‘a
credible threat’ ” of violence, punishment is “imprisonment in a county jail not to exceed
one year, or in the state prison for 16 months or two or three years.” (§ 166, subd. (c)(4).)
          Defendant’s motion to bifurcate the fact of the prior convictions was denied.
          During trial, the parties entered into a stipulation and the trial court instructed the
jury: “Stipulation means the parties have agreed that certain evidence does exist. So
rather than bringing in witnesses or testimony or physical evidence, they’ve agreed that
these convictions; that the defendant was convicted of a 166(c)(1) on December 8th of
2011 and convicted of a violation of Penal Code Section 273.5 on February the 9th of
2011. [¶] That information will become relevant when you are deliberating in this
case. . . . There’s no objection by the defense. They are not arguing that they do not
exist.”
          The trial court also instructed the jury: “If you find the defendant guilty of the
crimes alleged in Counts 1 and 3 -- and 1 is the 273.5, inflicting corporal injury on a
spouse or cohabitant. And 3 is the violation of the court order, the 166(c)(4). There is
also a special allegation attached to each of those. [¶] So if you find the defendant guilty
                                                 11
of the crimes charged in Counts 1 and 3, you must also decide whether the People have
proved the additional allegation that the defendant was previously convicted of other
crimes. [¶] It has already been determined that the defendant is the person named in the
stipulation entered into by the parties. You must decide whether the evidence proves that
the defendant was convicted of the alleged other crimes based on that stipulation. [¶]
The People allege that the defendant has been convicted of, one, a violation of 273.5
on . . . February 9th of 2011 in the superior court of Monterey County in case
MS292717A. That relates to Count 1. . . . [¶] . . . [¶] The People allege that the
defendant has been convicted of a violation of Penal Code Section 166(c)(1) on
December 8th of 2011 in the superior court of Monterey County in case MS300979A.
[¶] You must consider each of these alleged convictions separately. The People have the
burden of proving each alleged conviction beyond a reasonable doubt. If the People have
not met this burden for any alleged conviction, you must find that the alleged conviction
has not been proved.”
       The jury convicted defendant of the count 1 charge that he inflicted corporal injury
on a spouse or cohabitant (§ 273.5, subd. (a)), and found true the allegation that he had a
prior conviction for the same offense (§ 273.5, subd. (e)(1)). As to count 3, the jury
convicted defendant of contempt of court for violating a restraining order (§ 166,
subd. (c)(1)) and found true the allegation that the defendant had suffered a prior
conviction of contempt of court for violating a restraining order (§ 166, subd. (c)(4)).
       Prior to accepting a criminal defendant’s guilty plea, a trial court must advise him
of the constitutional rights to a jury trial, to confront accusers, and against compulsory
self-incrimination, and obtain the defendant’s express waivers of these rights. (Boykin,
supra, 395 U.S. at p. 243; Tahl, supra, 1 Cal.3d at pp. 132-133.) In re Yurko (1974) 10
Cal.3d 857 (Yurko) extended this rule to cases in which the trial court accepts a
defendant’s admission that he has suffered prior felony convictions. (Id. at p. 863.)
Yurko also imposed additional admonitions “as a judicially declared rule of criminal
                                             12
procedure” that the trial court advise the defendant: (1) he might be adjudged an habitual
criminal if applicable to his case; (2) “of the precise increase in the term or terms which
might be imposed, if any, in the accused’s case pursuant to . . . applicable statutes
[citation];” and (3) of the effect on eligibility for parole. (Id. at p. 864.)5
       Moreover, advisement and waiver requirements are not limited to a defendant’s
guilty plea or admission to a prior conviction. In re Mosley (1970) 1 Cal.3d 913 held that
when defense counsel’s stipulation to submit the case on the transcript of the preliminary
examination is “tantamount to a plea of guilty,” the stipulation “must be accompanied by
an affirmative showing on the record that the defendant waives his right to freedom from
compulsory self-incrimination, his right to trial by jury, and his right to confront his
accusers.” (Id. at p. 926, fn. 10.) In Bunnell v. Superior Court (1975) 13 Cal.3d 592, the
California Supreme Court stated that it used the phrase “ ‘tantamount to a plea of guilty ’ ”
in Mosley “to explain [the] extension of the Boykin-Tahl requirements to submissions in
which the guilt of the defendant was apparent on the basis of the evidence presented at
the preliminary hearing and in which conviction was a foregone conclusion if no defense
was offered.” (Bunnell, at p. 602.)
       Claims that a stipulation also triggers Boykin-Tahl and Yurko requirements were
considered in People v. Adams (1993) 6 Cal.4th 570 (Adams) and People v. Newman
(1999) 21 Cal.4th 413 (Newman). In Adams, the prosecution alleged an enhancement
that the defendant had committed some of his offenses while he was released from
custody (§ 12022.1). (Adams, at p. 574.) The defendant stipulated that when the alleged
offenses were committed, he was out of custody on bail on his own recognizance. (Ibid.)
On appeal, the defendant argued that his stipulation was void because the trial court had

5
       The issue of whether the trial court erred by failing to advise the defendant in
accordance with Yurko, supra, 10 Cal.3d 857 before accepting the stipulation that the
defendant had a prior conviction for an offense that exposed him to a greater sentence
under section 273.5 is currently pending before the California Supreme Court in People
v. Cross, review granted October 2, 2013, S212157.
                                               13
not complied with Boykin-Tahl requirements. (Adams, at p. 575.) Adams concluded that
Boykin-Tahl requirements were not applicable to an evidentiary stipulation which did
“not admit the truth of the allegation itself or every fact necessary to imposition of the
additional punishment other than conviction of the underlying offense.” (Adams, at
p. 580.) Adams observed that the section 12022.1 enhancement allegation differed from
most enhancement allegations because it did not apply unless the defendant was
convicted of the primary offense. (Adams, at p. 580.) Thus, since the defendant did not
stipulate to all elements of the enhancement allegation, Yurko did not require Boykin-Tahl
advice and waivers or that the trial court advise the defendant of the penal consequences
if the allegation was found to be true. (Adams, at p. 582.)
       In Newman, supra, 21 Cal.4th 413, the prosecutor charged the defendant with
being a felon in possession of a firearm (§ 12021) and alleged six prior felony
convictions enhancements. (Newman, at p. 416.) Trial on the section 12021 charge and
enhancement allegations was bifurcated. (Newman, at p. 416.) Before trial on the
substantive charge, defense counsel stipulated to the defendant’s status as a felon. (Ibid.)
On appeal, the defendant argued that the stipulation was invalid because the trial court
had failed to advise him of any rights or obtain any waivers in accordance with Boykin-
Tahl and Yurko. (Newman, at pp. 417-418.) Relying on Adams, supra, 6 Cal.4th 570,
Newman rejected defendant’s argument because he had not stipulated to all of the
evidentiary facts necessary for his conviction. (Newman, at pp. 422-423.)
       In People v. Little (2004) 115 Cal.App.4th 766 (Little), this court distinguished
stipulations that directly result in penal consequences from those in Adams and Newman.
In Little, the defendant was charged with child endangerment and various drug offenses,
including Health and Safety Code section 11550. (Little, at p. 769.) Prior to trial, the
defendant stipulated that he “was under the influence of a controlled substance,
methamphetamine, in violation of Health and Safety Code section 11550(A),” and this
stipulation was read to the jury. (Little, at p. 772.) Little concluded that since the
                                              14
defendant‘s stipulation covered all facts required for conviction and punishment and thus
was tantamount to a guilty plea, the trial court was required to give Boykin-Tahl
admonitions. (Little, at pp. 775, 776-778.)
       Here, defendant was subject to enhanced punishment under section 273.5,
subdivision (e)(1) if the prosecution proved that he had suffered an enumerated offense,
including a prior conviction under section 273.5, subdivision (a), and that the conviction
occurred within the past seven years. Similarly, defendant was subject to enhanced
punishment under section 166, subdivision (c)(4) if the prosecution proved that he had
suffered a prior conviction for violating a restraining order within the past seven years.
Like Little, and unlike Adams and Newman, the stipulation in the present case covered all
evidentiary facts required for the jury to find true the prior conviction allegations. In
effect, the stipulation was an admission to the truth of both prior conviction allegations.
Under Yurko, a prior conviction cannot be admitted by a defendant unless the trial court
advises the defendant of his or her rights and the consequences of the admission. Thus,
here, defendant was entitled to advisements in accordance with Boykin-Tahl and Yurko
before stipulating to his prior convictions of sections 273.5 and 166.
       Relying on People v. Witcher (1995) 41 Cal.App.4th 223 (Witcher) and People v.
Tardy (2003) 112 Cal.App.4th 783 (Tardy), the Attorney General argues that “[a] prior
conviction for domestic violence and a prior conviction for disobeying a protective or
stay-away order are only sentencing factors to which the requirement of advisements and
waiver does not apply . . . .”
       In Witcher, supra, 41 Cal.App.4th 223, the defendant was charged with two counts
of petty theft with a prior conviction (§ 666). (Witcher, at p. 226.) Prior to trial,
defendant admitted the two prior convictions for purposes of section 666. (Witcher, at
p. 226.) On appeal, defendant argued, among other things, that his admission of the two
prior convictions was not voluntary and intelligent. (Ibid.) Relying on People v. Bouzas
(1991) 53 Cal.3d 467, which had held that the prior conviction and incarceration
                                              15
requirement of section 666 was not an element of the crime and thus the defendant had
the right to stipulate to this requirement, Witcher concluded that the defendant’s
“admission” or stipulation did not require advisements and waivers. (Witcher, at pp. 233-
234.) Witcher reasoned: “Appellant has cited no authority for the proposition that a
defendant must be admonished about his constitutional rights when he enters into such a
self-serving stipulation, and we decline to create such authority. He has received the
benefit of his bargain. The prosecution was not allowed to prove his prior felony
convictions and incarcerations before the jury. We will not now countenance an after-
the-fact contention that his stipulation did not meet minimum constitutional standards.”
(Id. at p. 234.) Here, in contrast to Witcher, defendant’s stipulation did not prevent the
jury from hearing that he had previously been convicted of sections 273.5 and 166.
Moreover, there was no discussion in Bouzas regarding admonitions and waivers.
       Nor are we persuaded by the Attorney General’s reliance on Tardy, supra, 112
Cal.App.4th 783 in which the Court of Appeal determined that section 666 was not an
“ ‘enhancement’ because it [did] not add to the base term.” (Tardy, at p. 787, fn. 2, citing
Cal. Rules of Court, rule 4.405(c).) Like section 666, sections 273.5, subdivision (e)(1)
and 166, subdivision (c)(4) are not enhancements. However, Yurko made no distinction
between the different types of prior convictions, that is, whether they constitute
enhancements or sentencing factors that authorize the trial court to employ an alternate
sentencing scheme. Accordingly, we conclude Yurko is controlling in the present case.
       The lack of advisement of each of the Boykin–Tahl rights and penal consequences
as well as the defendant’s waiver of his rights constitute reversible error unless “the
record affirmatively shows that [the stipulation] is voluntary and intelligent under the
totality of the circumstances.” (People v. Howard, supra, 1 Cal.4th at p. 1175.) Here,
there is nothing in the record to show that defendant’s stipulation was voluntary and
intelligent under the totality of the circumstances. Accordingly, the judgment is reversed.


                                             16
                              C. Local Crime Prevention Fine
       Defendant contends, and the People concede, that the local crime prevention fine
of $10 must be stricken.
       Section 1202.5, subdivision (a) provides in relevant part: “In any case in which a
defendant is convicted of any of the offenses enumerated in Section 211, 215, 459, 470,
484, 487, 488, or 594, the court shall order the defendant to pay a fine of ten dollars ($10)
in addition to any other penalty or fine imposed.”
       Here, defendant was acquitted of the charge in count 2 of residential burglary
(§§ 459, 460, subd. (a)). Defendant was neither charged nor convicted of any other
offense that subjected him to the fine under section 1202.5. Though defendant did not
object to imposition of this fine, it was unauthorized and thus can be corrected at any
time. (People v. Scott (1994) 9 Cal.4th 331, 354.) Thus, this fine must be stricken.




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                                      III.     Disposition
       The judgment is reversed and remanded for further proceedings regarding the
sections 273.5 and 166 prior conviction allegations. The trial court is also directed to
strike the $10 fine imposed pursuant to section 1202.5, subdivision (a).




                                             _______________________________
                                             Mihara, J.



WE CONCUR:




______________________________
Bamattre-Manoukian, Acting P. J.




______________________________
Grover, J.




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