Filed 11/13/13 P. v. Marin CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.
SILVESTRE CANO MARIN,
Defendant and Appellant. B242432
(Los Angeles County Super. Ct. No. MA054709)

APPEAL from a judgment of the Supe rior Court of Los Angeles County, John Murphy, Commissioner. Affirm ed in part, reversed in part, and remanded. Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Scott A. Taryle and Stacy S. Schwartz, Deputy Attorn eys General, for Plaintiff and Respondent.2 INTRODUCTION

A jury convicted defendant Silvestre Cano Marin of one count of driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)) (count 1, a felony), two counts of hit and run driving (Veh. Code, § 20002, subd. (a)) (counts 2 & 3, misdemeanors), and one count of vandalis m causing damage under $400 (Pen. Code, § 594, subd. (a)) (count 4, a misdemeanor). As to count 1, it was alleged that defendant had previously been convicted of a viola tion of Penal Code section 192, subdivision (c)(1), vehicular manslaughter, which is a sentencing enhancement pursuant to Vehicle
Code sections 23550 and 23550.5 and the “T hree Strikes” law (Pen. Code, §§ 1170.12, subds. (a)-(d) & 667, subds. (b )-(i)). It was further alleged th at defendant served a prior prison term pursuant to Penal Code secti on 667.5, subdivision (b) for a conviction of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). Prior to trial, defendant admitted his prior convictions. Accordingly, after the jury rendered its verdict he was sentenced to state prison for a term of seven years, consisting of the upper term of three years on count 1, doubled pursuant to the Thre e Strikes law; six months to run concurrently on count 2; six months to run concurrently on count 4; and a one-year consecutive term for the prio r prison conviction. A six-month term on count 3 was stayed pursuant to Penal Code section 654. Defendant argues on appeal that his admi ssions to the prior convictions must be reversed because the court accepted his admissions without advising him of his constitutional rights to conf rontation of witnesses a nd privilege against selfincrimination, or securing his wa iver of those rights. Defendant contends that the record
fails to demonstrate that the admissions we re intelligent and volunta ry, and therefore the findings on the prior conviction allegations must be reversed. As we shall explain, we

agree.3 In addition, we have reviewed at defenda nt’s request the sealed transcript of the trial court proceedings on his Pitchess 1 motion to determine whether the trial court failed to provide him with all discoverable informati on. We find no error in the trial court’s handling of those proceedings.

FACTUAL AND PROCED URAL BACKGROUND

During the evening of November 25, 2 011, defendant was driving a white sedan and collided with a sport utility vehicle parked along a curb, causing the SUV to ram into a minivan parked in front of it. All three vehicles were severely damaged. When the owner of the SUV approached defendant, de fendant began walking unsteadily away and then began running slowly, zigzagging as he ran. Shortly thereafter, the owner of the
minivan and the SUV owner st opped defendant and held hi m on the ground until police arrived. Defendant smelled strongly of alcoho l and his speech was sl urred. When police arrived and questioned him, defendant refuse d to answer many of their questions, and refused to submit to a field sobriety test or breath alcohol test. The police briefly left defendant alone in a police car and he kicked out the back wi ndow. At the police station,
defendant refused to submit to either a breath test or a blood alcohol test. Defendant waived his right to a jury tria l on the prior prison term and prior strike allegations. He admitted bo th prior convictions, includi ng a 2005 conviction for gross vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)), and a 2008 conviction for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), for which he had served a prior prison term and ha d not remained free from custody or the commission of a felony for the five ye ars following his release from prison. Specifically, in taking defendant’s admiss ions the court said to defendant, “With regard to that prior conviction, in the event of a conviction in this case you have a right to have a jury determine whet her the conviction is a valid conviction. I make a determination based on documents the DA gi ves me whether or not you’re the person

1 Pitchess v. Superior Court (1974) 11 Cal.3d 531.4 who is convicted, the jury th en makes a decision of whether there is, in fact, a conviction based on documents submitted to the jury by th e DA. If you admit that prior conviction,
that will be the end of that i ssue and you will be givi ng up your right to ha ve a jury trial. And if I were to accept the admiss ion, then the conviction, then it comes into play if there is an acquittal. [ Sic .] It basically has no effect. Do you understa nd?” Defendant and his
counsel conferred off the reco rd. The court asked defenda nt if he had been given adequate time to confer with his counsel regarding the prior co nviction. Defendant replied, “Yes, I understand, Your Honor. It’s just making sure.” Defense counsel told defendant, “Just answer his questions.” The court said, “Do you understand you ha ve a right to have a jury trial on the issue of the validity of the prior, correct?” Defendant rep lied, “Yes, sir.” The court continued, “Now, are we willing or do you want to give that right up and admit the truth of the prior conviction?” De fendant answered yes, and de fense counsel joined. The court said, “All right. The court accepts the admission.” Defense counsel then said, “Your Honor, it’ s also being alleged that he has a 667.5 prior, which is part of the information. [ 2 ] And he would admit th at at this time as well and then the defense request would be just there would be no reference to any of the priors alleged on the information in front of the jury.” The court said, “So if you admit that it’s the same situation, you do have a righ t to a trial on that issue as well.” Defense counsel said, “Same thing.” The court continue d: “You can exercise that right or give that right up and admit the pr ior conviction.” Defendant said, “Yes,” and the court asked, “You admit it?” Defendant replied in the affi rmative, and the court asked, “Give up your right to a jury trial on the prior conviction?” Defendant again replied in the affirmative. The court clarified that the prior prison te rm being referred to was a February 2008 conviction for violation of section 11377, subd ivision (a) of the Health and Safety Code (possession of a controlled substance). “I just want you to unde rstand correctly. You

2 The information includ ed defendant’s prior conv iction for gross vehicular manslaughter as an allegation u nder count 1 (driving under the influence of alcohol) as a prior strike, and also as a component of other allegations.5 understand you have a ri ght to a jury trial on the issue of whether it is a valid conviction, correct?” Defendant said yes, and that he was giving up that right and admitting the conviction. Defense counsel joined. Thereafter, a jury was impaneled and convicted defendant on all counts. Defendant did not testify or present any evidence. This timely appeal followed.

DISCUSSION

I. Advisement of Constitutional Righ ts Prior to Defendant Admitting Prior
Convictions
Defendant contends that b ecause the true findings by the court on the allegations of his prior convictions and prior prison term were based solely on his admissions, and
because the record fails to demonstrate that the admi ssions were intelligent and voluntary, the findings on the prior conviction a llegations must be reversed. We agree. “[A]n accused must be advised of (1) sp ecific constitutional protections waived by an admission of the truth of an allegation of prior felony convictions, and (2) those penalties and other sanctions im posed as a consequence of a finding of the truth of the allegation.” ( In re Yurko (1974) 10 Cal.3d 857, 860 ( Yurko ).) The federal constitutional rights involved are the privilege against compulsory self-incrimination, the right to a trial by jury, and the right to confront one’s accusers. ( In re Tahl (1969) 1 Cal.3d 122, 132 ( Tahl ).) In Yurko
, supra , 10 Cal.3d at page 863, the Supreme Court extended the Tahl requirements of express admon itions and waivers to the ad mission of a prior conviction for sentencing purposes. (See People v. Howard (1992) 1 Cal.4th 1132, 1177 ( Howard ).) However, in Howard , our Supreme Court clarified th at “the overwhelming weight of authority no longer supports the propos ition that the federal Constitution requires
reversal when the trial court has failed to give explicit admonitions on each of the so-6 called Boykin [ 3 ] rights.” (1 Cal.4th at p. 1175.) Th e Court therefore adopted the less rigid federal approach to determini ng whether a guilty plea or admission of prior convictions is voluntary and intelligent rather than adopting a rule of reversal per se. Under this approach, the court considers whether the reco rd “affirmatively dem onstrate[s] that the plea was voluntary and intelligent under the tota lity of the circumstances. [Citations.]” ( Id. at p. 1178.) In other words, “[i]f the reco rd fail[s] to disclose proper advisements and waivers, the appellate court [i s] required to determine furthe r, based on the totality of the circumstances, whether the defendant’s [plea] . . . was voluntarily and intelligently made. This determination require[s] the appellate court to examine the entire proceeding.” ( People v. Allen (1999) 21 Cal.4th 424, 438.) Similarly, in People v. Mosby (2004) 33 Cal.4th 353 ( Mosby ), the Supreme Court reiterated its commitment to application of a ha rmless error analysis in this context. It further elaborated: “In replacing the old ru le, the focus was shif ted from whether the defendant received express rights advisements, and expressly waived them, to whether
the defendant’s admission wa s intelligent and voluntary beca use it was given with an understanding of the rights waived. After our Howard decision, an appellate court must go beyond the courtroom colloquy to assess a claim of Yurko error. [Citation.] Now, if the transcript does not reve al complete advisements and waivers, the reviewing court must examine the record of ‘the entire pr oceeding’ to assess whether the defendant’s admission of the prior convicti on was intelligent and voluntary in light of the totality of circumstances.” ( Id . at p. 361.) In Mosby , defendant was found to have voluntarily and intelligently admitted his prior conviction where he was informed that he did not have to admit the prior conviction but could have had a ju ry or court trial, he had just participated in a jury trial where he had confronted witnesses and remained silent, and he had experience in pleading guilty in the past, i.e., the very convic tion he was then admitting. ( Id. at p. 365.)

3 Boykin v. Alabama (1969) 395 U.S. 238 ( Boykin ).7 Here, defendant was advised of and expressl y waived his right to a jury trial on the allegation of prior convictions. As the Atto rney General concedes, however, he was not advised on the record of his pr ivilege against self-incriminati on, his right to confront the witnesses against him, or the penal cons equences of his admission to the prior
convictions. The Attorney General argues that defendant nonetheless understood his constitutional rights when he admitted his pr ior convictions. The Attorney General points to defendant’s “two previous trips thr ough the criminal justic e system” as giving defendant “a practical education of the system” and the ability to understand the constitutional rights he was waiving in adm itting the priors. Acknowledging that the
record does not disclose whether defenda nt’s prior convictions resulted from plea bargains or jury trials, the Attorney General asserts that if the convictions resulted from pleas, then defendant had been given the Boykin-Tahl advisements and therefore would have understood the privilege to avoid self-i ncrimination and the right to confrontation. (Citing Mosby
, supra , 33 Cal.4th at p. 365.) On th e other hand, if the previous convictions occurred after jury trials, defend ant would have witnessed his counsel crossexamining witnesses and would ha ve discussed with his counse l whether to testify. He
therefore would have understood he had the ri ght of confrontation and the right to remain silent. (Citing Mosby
, supra , 33 Cal.4th at p. 364.) The A ttorney General also points out that defendant was assisted by counsel th roughout his admissions to the priors, and counsel joined in th e waiver for both admissions after the court gave defendant the opportunity to consult with his counsel. Based on the totality of the circumst ances, however, where there was no explicit advisement of the right to confront his accuse rs or the right to remain silent, it is not possible here to find defendant’s admissions of guilt were “voluntary and intelligent.”
The state of the record here l eaves us no alternative but to reverse the true findings on defendant’s prior offenses and prison term , and to remand for a new proceeding to determine the validity of these allegations. (See People v. Johnson (1993) 15 Cal.App.4th 169, 178.)8 While a defendant’s familiarity with the cr iminal justice system is relevant to his knowledge and sophistication regarding his le gal rights, because the record does not reflect whether the prior convictions resulted from trials or guilty pleas, “we are unable to determine whether or not [def endant] was ever informed on any occasion of his privilege against compulsory self-incrimination and/or his right to confront his accusers.” ( People
v. Witcher (1995) 41 Cal.App.4th 223, 231 ( Witcher ).) Thus, “[defendant’s] prior convictions, standing alone, [do not] serve to es tablish that he was aware of his rights. Were we to conclude otherwise, th ere would be no need to admonish any defendant who had previously been convicted of a crime, and we decline to adopt such a rule.” ( Ibid. ) We do not find defendant’s past experience in the criminal justice system to be a significant factor indicating that he was fully aware of his constitutional rights. The prior convictions were not especially recent, havi ng occurred in 2005 and 2008, nor are two prior convictions numerous enough to consider defendant knowledgeable and sophisticated with regard to th e criminal justice system. In addition, the admissions here took place prior to trial, and therefore he di d not yet have the oppo rtunity to experience his attorney confronting witnesses and had not yet testified or declined to do so. Finally, as to defendant’s representation by counsel and opport unity to discuss the admissions with his counsel, we find no basis in the record upon wh ich to evaluate the
likelihood of the inference the Attorney General urges us to draw that defendant’s rights were fully explained to him by his counsel. There is no basis upon which to conclude that the shortcomings of the trial court’s ad monitions were rendered nonprejudicial. (See
Witcher
, supra , 41 Cal.4th at p. 232.) Defendant also was not advised rega rding the penal consequences of his admissions. (See Yurko
, supra , 10 Cal.3d at p. 865.) Ho wever, we need not discuss the
failure to admonish him in th at regard in light of our conclusion that the lack of advisements regarding his constitu tional rights requires reversal.9 II. The Pitchess Motion Defendant requests that we review the in camera proceedings of his Pitchess
motion to determine whether the trial cour t properly ruled on th e discoverability of information contained in the personnel and ad ministrative files of the arresting officers, Deputies Tomlinson and Clark. We re view the trial court’s ruling on the Pitchess motion for abuse of discretion. ( People v. Hughes (2002) 27 Cal.4th 287, 330.) The trial court
conducted an in cam era hearing at which the custodian of records was placed under oath and presented the personnel files of Deputies Tomlinson and Clark. The court reviewed the potentially responsive documents outside the presence of all persons except the
custodian and his counsel. The trial court made the appropriate inquiries concerning whether the custodian had produced all poten tially responsive documents, and described thoroughly, in the s ealed transcript of the hearing, the documents produced. ( People v.
Mooc (2001) 26 Cal.4th 1216, 1229.) We have reviewed the sealed record of the in camera proceeding and conclude the trial cour t appropriately exercised its discretion in concluding that there was no rele vant, discoverable material to be disclosed. We find no error in the trial court’s ruling.

DISPOSITION

The judgment is affirmed as to defe ndant’s convictions of driving under the influence of alcohol or drugs, two counts of hit and run driving, and vandalism causing damage under $400. That part of the judgment relating to the true findings on allegations of defendant’s prior convictions and prison te rm is reversed, and th e cause remanded for10 new proceedings, either by trial or admissi on, with proper advisements and waivers of those priors, and for resentencing.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

WILLHITE, Acting P. J.

MANELLA, J.