Filed 10/30/13 P. v. Young CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. MITCHELL YOUNG, II, Defendant and Appellant. D062966

(Super. Ct. No. SCD242212)

APPEAL from a judgment of the Superi or Court of San Diego County, Theodore M. Weathers, Judge. Affirmed.

Koryn & Koryn and Sylvia Koryn, under appointment by the Court of Appeal, for the Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant Attorneys General, Meagan J. Beal and W illiam M. Wood, Deputy Attorneys General for the Plaintiff and Respondent.2 A jury convicted Mitchell Young, II, of one count of burglary (Pen. Code, 1 § 459). Following the ju ry verdict, Young admitted six pris on priors (§ 667.5, subd. (b)). The court sentenced him to prison for th e middle term of two years, struck the punishment for his fifth and sixth prison priors, and impose d one-year consecutive terms for each of the first four prison priors, for a total term of six years. The last three years were ordered suspended under sec tion 1170, subdivision (h)(5)(B). Young appeals, challenging the instructi ons given to the jury and the sentence imposed. He contends the trial court erred by declining to instruct the jury on voluntary intoxication and by giving the jury a consci ousness of guilt instruction. He further contends the court di d not obtain a knowing and voluntary waiver of his right against self-incrimination, right of confrontation, a nd right to a jury trial before accepting his admissions of his prior convictions, rendering his admissions invalid. We affirm the judgment.
FACTUAL AND PROCEDUR AL BACKGROUND Around 9:00 a.m. on Ju ly 23, 2012, Philip Anguiano was standing in his girlfriend's garage in the Skyline Hills ar ea of San Diego. Anguiano noticed Young walking on the other side of th e street when Young said some thing to him that he could not hear. Young then asked Anguiano whose Mercedes-Benz wa s parked in the driveway across the street, and told Angu iano that he was going to take the car. Young also told Anguiano he was looking for work.

1 Statutory references are to the Pe nal Code unless otherwise indicated.3 Suspicious, Anguiano entered his girl friend's house and observed Young from a window. Anguiano watched him walk around the Mercedes-Benz, pick up a clothes hanger that he made into a hook, and use it to unlock the back door of the MercedesBenz. When Young opened the door, Anguia no noticed the window was slightly down, which Young then pushed back up with his ha nds. Young sat down in the back seat of the car, and began rifling through th e car. Anguiano called police. San Diego Police Officer Blake Williams arrived while Young was still in the back seat of the Mercedes-Benz. Officer Williams approached Young and asked him what he was doing. Young to ld the officer he was "at his friend's house." Officer Williams noticed Young had a pi ece of paper in his hand, an d when he asked Young to step out of the car Young placed the piece of paper on the back seat. After placing Young in handcuffs, Officer W illiams returned to the car and noticed a handprint on the window and a coat hanger on the seat. The pi ece of paper Young ha d been holding was a pay stub for Eric Rogers, the register ed owner of the Mercedes-Benz. In his written report of the incident, O fficer Williams checked a box to indicate that Young was a possible narcotics user, desc ribed his demeanor as in a "stupor," and characterized his speech as "m umbling." However, the office r testified that Young did not appear to be intoxicated or under the infl uence of any narcotics. He did not smell any alcohol on Young, who spoke very little to the officer, pr eventing him from determining whether Young was intoxica ted or under the influe nce of narcotics. The Mercedes-Benz had been parked in the driveway of Rogers's parents' house for about two years. Rogers's mother had passed away and hi s father was in an assisted4 living home, so Rogers and his brother were renovati ng the house. Rogers testified that he did not know Young and had not give n him permission to enter his car.
DISCUSSION
I. Instructional Error
A. Standard of Review A court does not err by giving a jury inst ruction where there is sufficient evidence to support the instruction. ( People v. Williams (1997) 16 Cal.4th 635, 677; People v. Howard (2008) 42 Cal.4th 1000, 1025.) Sufficie nt evidence is ev idence from which a reasonable jury could have conc luded that the particular facts underlying the instruction did in fact exist. ( People v. Carr (1972) 8 Cal.3d 287, 294.) A jury misinstruction is evaluated for prejudice under the Watson test. ( People v. Watson (1956) 46 Cal.2d 818; People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130; People v. Breverman (1998) 19 Cal.4th 142, 173, 176.) Unless we conclude there is a reasonable probability that a result more favorable to the appellant would have been reached in the absence of the alleged error in instruction, the ju dgment will be affirmed. ( Watson , at p. 836.)
B. Voluntary Intoxication Instruction Young contends he presen ted substantial evidence he was intoxicated during the burglary, and therefore the court erred by fai ling to instruct the ju ry with CALCRIM No. 3426 regarding voluntary intoxication. 2 Specifically, Young ar gues Officer Williams's

2 CALCRIM No. 3426 reads in part: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acte d [or failed to do an act] with5 report and testimony, along with Young's "bi zarre behavior," could lead a jury to conclude that Young was int oxicated during the crime. At the time of Young's offense, section 22, subdivision (b) provided: "Evidence of voluntary intoxication is admissib le solely on the issue of whether or not the defendant actually formed a required specific intent . . . ." 3 Burglary is a specific intent offense ( People v. Montoya (1994) 7 Cal.4th 1027, 1052) and therefore Young was entitled to an instruction on voluntary intoxi cation if there was "substantia l evidence of [his] voluntary intoxication and the intoxication affected [his] 'actual formation of specific intent.' " ( People v. Williams , supra , 16 Cal.4th at p. 677.)
In Williams , the defendant sought a voluntary intoxication instruction based on a witness's testimony that he wa s "probably spaced out" when he committed the crime. ( People v. Williams , supra , 16 Cal.4th at p. 677.) Th e defendant also pointed to statements he made to the police after th e crime that he was "doped up" and "smokin pretty tough then." ( Ibid. ) Williams held this evidence was insufficient to warrant a voluntary intoxication instruction because, assuming the evidence would qualify as

_________ < insert specific intent or mental st ate required, e.g., 'the intent to permanently deprive the owner of his or her pr operty' or 'knowledge that . . .' or 'the intent to do the act required' >. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any in toxicating drug, drink, or other substance knowing that it could produce an intoxicati ng effect, or willingly assuming the risk of that effect." "An instruction on the significa nce of voluntary intoxication is a 'pinpoint' instruction that the trial court is not required to give unless requested by the defendant." ( People v. Rundle (2008) 43 Cal.4th 76, 145, di sapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
3 Section 22 was amended and renumbered in 2012 effectiv e January 1, 2013, and is now section 29.4.6 substantial, it failed to provide any supp ort for the contention that the voluntary intoxication "had any eff ect on defendant's ability to formulate intent." ( Id. at pp. 677- 678.) We conclude the court here correctly fo und the evidence was insufficient to show that Young was intoxicated in a manner that would cause him to lack the specific intent to burglarize. Young misreads Officer W illiams's testimony. Wh en asked if Young "appear[ed] to be intoxicated at all[,]" the officer responded: "No. I did not smell any alcohol on his person. And he spoke very little to me, so I was unable to tell if he was intoxicated or under the influence of anythi ng." Officer Williams also testified that Young did not exhibit any symp toms of being under the influence of a narcotic. He explained that his statement in his repor t that Young was "mum bling" was simply referring to Young not sp eaking loudly. Other than the statements in Officer Williams's report, Young provides no evidence of intoxica tion. He did not testify, did not produce evidence of the amount of alcohol he asse rtedly consumed, and did not present any evidence regarding any cognitiv e impairment he was sufferi ng from during the crime. Without any direct or expert te stimony on this subject, the jury would be left to speculate whether Young was intoxicated at all. But even if we were to accept Officer Williams's report as substantial evidence of Young's intoxication, the voluntary intoxication instruction would still be un warranted because, as in Williams , there was no evidence of the effect any such intoxication had on Young's ability to fo rmulate intent. ( People v. Williams , supra , 16 Cal.4th at pp. 677-678.)7 C. Consciousness of Guilt Instruction Over Young's objection, the court instru cted the jury with CALCRIM No. 362 as follows: "If the defendant made a false or mi sleading statement before this trial relating to the charged crime, knowing the statemen t was false or intending to mislead, that conduct may show he was aware of his guilt of the crime, and you may consider it in determining his guilt. If you conclude that th e defendant made the statement, it is up to you decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself." Young contends th e court erroneously gave this consciousness of guilt instructi on because it caused th e jury to make an inference that was unsupported by the facts, and it was an improper pinpoint instruction that "improperly shifted the balance of inst ructions" against Young in violation of his right to due process under the Fifth and F ourteenth Amendments to the United States Constitution. A consciousness of guilt instruction is pr oper when there is evidence from which the jury could reasonably find that a defendant's false stat ements were made to deflect suspicion from himself, reflecting consciousness of guilt. (See People v. Howard , supra , 42 Cal.4th at p. 1025.) When Officer Williams first approa ched Young while he was in the back seat of the Merced es-Benz, Young sought to ju stify his presence by telling Officer Williams he was at his friend's house. But Rogers testified that he did not know Young, and there is no evidence any other pe rson at Rogers's parent's house was, or claimed to be, Young's friend. On this re cord, a jury could reasonably find Young's8 statement that he was "at his friend's house" wa s false and made to mislead the officer to deflect any suspicion as to his presence in the parked car. Young also argues the consciousness of guilt instruction was an improper factual pinpoint instruction that "shifted the balance of instructions" against him in violation of his right to due process. The Californi a Supreme Court has consistently upheld consciousness of guilt instructions because "it can be inferred rationally that false statements regarding a crime show a consciousness of guilt . . . ." ( People v. Griffin (1988) 46 Cal. 3d 1011, 1027; People v. Howard , supra , 42 Cal.4th at p. 1025 [rejecting the argument that a consciousness of guilt inst ruction violates a de fendant's due process rights].) Moreover, a consciousness of guilt instruction is not an improper pinpoint instruction because it tells the jury they may consider the evidence of false statements, but the evidence cannot prove guilt by itself . (See People v. Arias (1996) 13 Cal.4th 92, 142; People v. Kelly (1992) 1 Cal.4th 495 ["If the court tells the jury that certain evidence is not alone sufficient to convict, it must nece ssarily inform the jury, either expressly or impliedly, that it may at least consider the evidence"].) We may not disregard the Supreme Court's holdings on consciousness of guilt instructions ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and theref ore reject Young's claim that the consciousness of guilt instruction violated his due process rights under the Fifth and Fourteenth Amendments of th e United States Constitution.9 II. Claim of Deficient Advisements
A. Background After both sides rested, Young waived hi s right to a jury trial on his six prison priors. The trial court explained the People 's charges with regard to the prior prison terms, Young's right to a jury trial on the prison priors, and conf irmed Young understood the allegations against him. Th e following exchange occurred: "[The Court]: Mr. Young understands that he has a right—if there is a conviction for the charge in count one, the burglary count, the fel ony, Mr. Young would have the right to have the same jury de termine whether or not the pris on priors that are alleged in the information are true. He also has the right to waive that jury tria l if he so desires. Have you and he discussed his right to a jury trial on the priors? "[Defense counsel]: We have, your honor. And just—he's indicated to me that he would not like a jury trial on the priors. A nd I'm just going to confer with him for one brief moment to ensure that that is still where he stands. "[The Court]: Okay. "[Discussion held off the record.] "[Defense counsel]: He maintains his pos ition that he does not want a jury trial on the priors. "[The Court]: Okay. So, Mr. Young, you understand that yo u do have—if there is a conviction for the burglary ch arge, you would have the right to have the same jury hear about your prison priors. Do you understand that? "[Young]: Yes.10 "[The Court]: And then they would determine whether or not the People have proved up those prison priors beyond a reasona ble doubt or not. Do you understand that? "[Young]: Huh-uh. "[The Court]: Yes. So let me tell you. So the same jury would hear the People's evidence about th e prison priors. "[Young]: Okay. "[The Court]: Okay? And they would have to determine whether the People have proved those prison priors be yond a reasonable doubt. You understand that? Basically, it's a jury trial on the prio rs. So, Mr. Young, you seem to indicate that you don't understand what I'm saying, so let me try to start over and explain it a little bit better. [¶] So what we are asking is whether or not you want the jury to—if you want a jury trial on your priors. Do you understand that? "[Young]: Yes. "[The Court]: And [defense counsel] ha s indicated that, after speaking with you, you told her that you don't want a jury trial on the priors. Is that correct? "[Young]: That's correct. "[The Court]: Okay. Do you have any qu estions about your rights to have a jury trial on the priors? "[Young]: No, sir. "[The Court]: No? And you are willing to give up those rights and waive a jury trial at this time; correct? "[Young]: Correct.11 "[The Court]: All right. Any questions about that? "[Young]: No, sir." After the jury returned its verdict, the court summari zed each of Young's prior convictions, and Young admitted them. Th e court then found Young had made a voluntary and intelligent waiver of his right to trial, stating, "The Court believes that Mr. Young has been fully advised of his right to a tr ial. He has waived hi s right to both a jury trial as well as a court trial on the issue of th e priors. He has admitted, and I believe that he has knowingly and intelligen tly waived those rights and ma de his admission to those six prison priors. So the Court will find each of those six prison pr iors to be true."
B. Analysis Before accepting a criminal defendant's ad mission of a prior conviction, a trial court must advise the defendant of the right to a jury trial on the prio r, the right to remain silent, and the right to conf ront adverse witnesses. ( In re Yurko (1974) 10 Cal.3d 857, 863.) If the defendant makes an express waiver of these rights, or under the totality of the circumstances the admission was volunta rily and knowingly made, the admission stands. ( People v. Mosby (2004) 33 Cal.4th 3 53, 360-361.) Young contends the prior conviction enhancements should be stricken because the trial court did not fully advise him of his rights before he admitted his six pr ior prison terms. He maintains the court did not inform him following th e jury's guilty verdict of his right to a trial, his right to remain silent, or his right to confront adverse witnesses. In making these arguments, Young fails to acknowledge the discussion he had with the Court regarding his right to a jury trial on his prison priors immediately after12 both sides rested. He instead compares his situation to In re Candelario (1970) 3 Cal.3d 702, a case in which the Supr eme Court was confronted with the difference between clerical and judicial error in amending a judgment to include a prior conviction. ( Id. at p. 705.) Candelario does not discuss proper advisement s prior to a defendant's admission of prison priors, but instead addresses a trial court's jurisdiction to later amend an abstract of judgment to include a prior conviction that was not referenced in the pronouncement of judgment. 4 ( Ibid. ) We disagree with Young's assertion that the Court in this case "effectively did the same thing" by imposin g a sentence "premised on findings that had never been made." Here, the trial court took Young's waiver of all of his prior convictions, found them to be true, and they are reflected in the abstract of judgment. Accordingly, there is no question as to th e trial court's jurisd iction, and Young's comparison is without merit.

4 In In re Candelario , supra , 3 Cal.3d 702, a defendant convicted of selling heroin admitted having received a prior felony convi ction for possession of marijuana. The prior conviction, however, was not mentione d in the oral pronouncement of judgment, the minute order of judgment, or the original abstract of judgment. ( Id . at p. 706.) Over a month later, the trial court f iled an amended abstract of judgment including the prior conviction. ( Id . at pp. 704-706.) The California Supreme Court held the attempted amendment was invalid on the ground that the court's fa ilure to include the prior conviction in the judgment c ould not be presumed an ina dvertent clerical error: "Admission of the prior offense . . . does not thereby relieve th e court of its responsibility to pronounce judgment finding petitioner guilty of the substantive offense with a prior conviction, and to have such ju dgment entered in the official records of the court. [¶] Reference to the prior convicti on must be included in the pr onouncement of judgment for if the record is silent in th at regard, in the absence of ev idence to the contrary, it may be inferred that the omission was an act of leniency by the trial court. In such circumstances the silence operates as a finding that the prior conviction was not true." ( Id

. at p. 706.)13 Young also relies on People v. Torres (1996) 43 Cal.App.4th 10 73, a case that was subsequently disapproved by Mosby , supra , 33 Cal.4th 353. Under the circumstances of this case, Mosby is controlling. In Mosby , the court found a defendant's admission of his prior conviction voluntary and intelligent, desp ite the absence of the defendant's waiver of his rights to remain silent and to confront adverse witnesses. ( Id. at pp. 356, 360, 363- 365.) There, the trial court had expressly advi sed the defendant of his right to a jury trial on his prior conviction allega tion, and the defendant expr essly waived that right, admitting the truth of that allegation. ( Id. at pp. 358, 364.) On appeal, the defendant argued the trial court committed reversible erro r by failing to advise him of his other two rights. ( Id. at p. 364.) The Supreme Court he ld the defendant's understanding and whether he knowingly waived constitutional rights was informed by the entire record of the proceedings, because "previous experience in the criminal justice system is relevant to a recidivist's ' "knowled ge and sophistication regardi ng his [legal] rights." ' " ( Id . at p. 365, in part citing Parke v. Raley (1992) 506 U.S. 20, 36-37.) The defendant in Mosby had just participated in a jury trial at which he did not te stify, and during the trial his counsel confronted witnesses. ( Mosby , 33 Cal.4th at p. 365.) Also, his prior conviction was based on a plea of guilty, in connection with which he woul d have received the requisite advisements. ( Ibid .) Thus, the California Supreme Court held that under the totality of the circumstances, the Court of A ppeal did not err by conc luding the defendant had voluntarily and intelligently admitted his prior convicti on despite being advised of and having waived only his ri ght to a jury trial. ( Ibid .)14 Young contends his prior experience with the criminal justice system is insufficient to prove his knowledge of the righ t to remain silent and right to confront witnesses. However, Young's in terpretation of the totality of the circumstances fails to acknowledge that he waiv ed his right to a jury trial on hi s prison priors just minutes after trial concluded on the substa ntive offenses. As in Mosby , Young did not testify at his trial and his attorney confronted advers e witnesses. Additionally, Young has an extensive criminal record, with at least six prior convictions , from which a court can infer he has " ' "knowledge and sophistication regarding his [legal] rights." ' " ( People v. Mosby, supra , 33 Cal.4th at p. 365.) Based on this record, we conclude under the totality of the circumstances Young made a volunta ry and intelligent admission of his prison priors.15 DISPOSITION The judgment is affirmed.

O'ROURKE, J. WE CONCUR:

McCONNELL, P. J.

HALLER, J.