Filed 9/11/14 P. v. Perez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D066231
Plaintiff and Respondent,
v. (Super. Ct. No. RIF1101215)
JOHN ANTHONY PEREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County, Elisabeth
Sichel, Judge. Reversed in part, affirmed in part and remanded.
Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Laura A.
Glennon, Deputy Attorneys General, for Plaintiff and Respondent. A jury found John Anthony Perez guilty of first degree murder (Pen. Code, § 187,
subd. (a)),1 with the further finding that Perez personally and intentionally discharged a
firearm and proximately caused great bodily injury or death (§§ 12022.53, subd. (d),
1192.7, subd. (c)(8)). Perez admitted two serious and violent felony offenses, and the
trial court sentenced him to prison under the "Three Strikes" Law (§§ 667, subds. (b)-(i),
1170.12) to a term of 100 years to life.
Perez contends (1) the trial court improperly admitted evidence concerning a
bullet core found at the scene of the murder and a gun found in Perez's vehicle;
(2) insufficient evidence supports the verdict; (3) defense counsel was ineffective because
she failed to argue that Perez was not present during the shooting; (4) Perez did not make
a voluntary and intelligent waiver of his fundamental rights when admitting his two prior
convictions for serious and violent felonies; and (5) the trial court abused its discretion in
denying Perez's motion to strike his prior serious and violent felony convictions.
We agree with the People's concession that Perez did not voluntarily and
intelligently waive his rights when admitting his prior serious and violent felony
convictions, and that the adjudication of the prior conviction allegations should be
vacated. However, we find no merit to Perez's remaining contentions. We accordingly
reverse the judgment to the extent it adjudicates that Perez incurred two prior serious and
violent felonies, and we remand for further proceedings.
1 Unless otherwise indicated, all further statutory references are to the Penal Code.
2 I
FACTUAL AND PROCEDURAL BACKGROUND
Juan Carlos Diaz was shot and killed shortly before midnight on May 22, 2010,
during an argument that took place on the street outside of Jose Barrojas's home in
Moreno Valley. Four witnesses to the shooting spoke to police about the incident and
later testified at trial.
A. Evidence Provided by Andrew Diaz
According to the trial testimony of Diaz's nephew, Andrew Diaz (Andrew),2 the
shooting occurred during an argument over the eviction of Diaz's girlfriend, Dianna
Garcia (Dianna) from Barrojas's house. As Andrew testified, Diaz, Dianna, Andrew, and
Dianna's niece Naidene Garcia (Naidene) arrived at Barrojas's house in Diaz's car late in
the evening of May 22, 2010. Barrojas approached Dianna, who was in the car, and
asked for the house keys, but Dianna refused to hand them over. Three other men were
present with Barrojas, one of whom Andrew identified as Perez. At some point, Diaz and
Andrew got out of the car.
According to Andrew, Perez walked by Diaz's car with a second man and said,
"What's up" to Diaz, enabling Andrew to clearly see Perez's face. The four men briefly
went inside of Barrojas's house, turned off the porch light and then came back out and
approached the car again. According to Andrew, the men asked for the house keys in a
2 To avoid confusion due to shared surnames, we refer to certain witnesses by their first names, and we intend no disrespect by doing so.
3 rude manner, and Diaz said, "I don't have no house key," referring them to Dianna. Perez
extended his arm and shot Diaz in the chest with a single shot from a gun that Andrew
believed might have been a Glock. The bullet went through Diaz's chest and exited
through his back. Andrew then saw Perez pick up the expended bullet shell and drive
away by himself in a black car.
Andrew had no doubt at trial that Perez was the shooter and that he had clearly
seen Perez's face. However, Perez makes much of the fact that during a police interview,
Andrew was shown a photographic lineup containing Perez's photo, and although
Andrew stated that Perez looked most similar to the shooter, he was not certain. Further,
immediately after the shooting, Andrew was shown Perez's DMV photo and did not
identify him as the shooter.
B. Evidence Provided by Jose Barrojas
Barrojas identified Perez to police in a photographic lineup in November 2010.
Specifically, Barrojas stated that he knew Perez as "Sapo," and that Perez was the person
who shot Diaz. Barrojas also told police that Perez had threatened to kill him in
connection with giving information in this case, and Barrojas identified Perez in the
photographic lineup only after confirming that Perez was in custody. Consistent with his
statements to police in November 2010, Barrojas stated to police immediately after the
shooting that "Sapo" was the person who shot Diaz.
At trial, however, Barrojas did not provide an identification of Perez as the
shooter. Instead, Barrojas consistently claimed memory loss about the details of the
shooting that might implicate Perez and did not remember what he previously told police.
4 It is obvious from Barrojas's testimony that his loss of memory was a tactic to avoid
providing evidence at trial that might put him or his family in jeopardy. Specifically,
Barrojas admitted at trial that he had received threats connected to his testimony in this
case, that he was afraid for the safety of his family, and that he was choosing to answer
questions in a certain way as a form of protection for his family.
C. Evidence Provided by Miguel Hernandez
Barrojas's cousin, Miguel Hernandez, was also present during the shooting. In a
May 2010 interview, Hernandez told police that Sapo was there on the night of the
shooting, and he identified Perez as Sapo in a photographic lineup. Hernandez also told
police that he heard Dianna yell out "Sapo" immediately after the shooting, and that Sapo
called him a few minutes after the shooting to suggest to Hernandez that he hadn't seen
Sapo at the scene. Indeed, phone records show a call from Perez to Hernandez minutes
after the shooting, and the cell phone tower registering the call from Hernandez is within
a few miles of the location of the shooting. Perez's cell phone records also showed that
Perez had been communicating with both Hernandez and Barrojas on the evening of the
shooting.3
3 Perez argues that there was insufficient evidence connecting him with the cell phone involved in the calls on the night of the shooting. We reject that argument, as the jury could conclude from strong circumstantial evidence that the phone number belonged to Perez based on the fact that "John Perez" in Moreno Valley was the subscriber, the relevant cell phone records number contained a number of calls to Hernandez, and the same telephone number was in Barrojas's contacts listing as "Sapo."
5 Hernandez did not testify at trial to all of the things he earlier told police.
Hernandez admitted to being present during the shooting. However, he claimed that he
only met Perez once at a party and that Perez was not there on the night of the shooting.
According to Hernandez's testimony, he was not watching when the shooting occurred
and did not know the identity of the shooter. Hernandez denied telling police that Perez
had phoned him immediately after the shooting.
D. Evidence Provided by Naidene Garcia
Naidene testified that she watched the shooting from the backseat of Diaz's car,
and she remembered that it happened after a long argument between Barrojas and
Dianna, in which Dianna refused to return Barrojas's house keys. Three other men were
with Barrojas: Hernandez and two men who Naidene may have seen before at a party.
Naidene did not see the shooter's face, but she saw a semiautomatic gun in his right hand.
The shooter was one of the two other men, not Hernandez; he was chunky and short; and
was wearing dark blue pants and a black sweater. Naidene was not able to identify Perez
as the shooter in the courtroom or earlier in a photographic lineup, but she remembered
hearing Dianna or Hernandez yelling "Sapo" immediately after the shooting.
E. Perez's Interview with the Police
At trial, the jury was played a recorded interview between police and Perez that
took place in August 2010. Perez denied being at Barrojas's house on the night of the
shooting, even when confronted with cell phone records that put him in the vicinity.
Perez claimed he had left his cell phone in the car overnight on May 22, 2010, and thus
did not have it with him around the time of the shooting. Although Perez claimed during
6 his police interview that he had not used the nickname Sapo for 15 or 20 years, the
People presented evidence at trial that Perez had referred to himself as Sapo in a recorded
telephone conversation in February 2011. The jury heard evidence that a gun holster was
found at the scene of the shooting with DNA on it that connected it to Perez. The police
asked Perez about the holster during the interview, and Perez claimed that his DNA
would not be found on any holster at the scene of the shooting.
F. Perez's Conviction and Sentence
The jury convicted Perez of first degree murder (§ 187, subd. (a)) and made a true
finding that Perez personally and intentionally discharged a firearm and proximately
caused great bodily injury or death (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8)). The
trial court sentenced Perez under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12)
to a prison term of 75 years to life for the murder conviction, plus 25 years to life for one
of the firearm enhancements (§ 12022.53, subd. (d)).
II
DISCUSSION
A. The Trial Court Properly Admitted Evidence of Perez's Firearm and the Bullet Core Found at the Scene of the Shooting
We first consider Perez's argument that the trial court improperly admitted certain
evidence that Perez unsuccessfully sought to exclude during motions in limine. First,
Perez sought to exclude evidence of People's exhibit 46, which was a Glock 17,
nine-millimeter gun found in Perez's vehicle during a traffic stop in August 2010, several
months after the May 2010 shooting. Second, Perez sought to exclude evidence related
7 to People's exhibits 17 and 58, which were a bullet core that police recovered at the scene
of the shooting after a neighbor in the same cul-de-sac noticed it in his driveway the next
morning, and a photo of the bullet core.
As relevant here, a ballistics expert testified that the bullet core was of the type
that could have been shot from the model of gun that was found in Perez's vehicle.4
However, the bullet core also could have been fired from several other types of guns, and
because the jacket of the bullet was not recovered, it was not possible to analyze whether
the bullet had been fired from Perez's gun.
Perez contends that both items of evidence should have been excluded under
Evidence Code section 352 because if they have any relevance at all to this case, it is very
minimal, and there was a danger of undue prejudice from their admission into evidence.5
As we will explain, we disagree.
Pursuant to Evidence Code section 352, "[a] trial court may exclude otherwise
relevant evidence when its probative value is substantially outweighed by concerns of
4 As the ballistics expert explained, a bullet core is a bullet in which the outside covering of the bullet is no longer present.
5 Although Perez's argument is not clear, he also may be intending to argue that regardless of the prejudicial nature of the evidence, it also should have been excluded because it did not meet the basic relevancy threshold for admission. Subject to statutory exceptions, "all relevant evidence is admissible." (Evid. Code, § 351.) Evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Id., § 210.) To the extent Perez is advancing a pure relevancy argument, we address the lack of merit to that argument in connection with our discussion of probative value of the contested evidence during our analysis under Evidence Code section 352.
8 undue prejudice, confusion, or consumption of time." (People v. Scott (2011) 52 Cal.4th
452, 490 (Scott).) " ' "The 'prejudice' referred to in Evidence Code section 352 applies to
evidence which uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues. In applying section 352,
'prejudicial' is not synonymous with 'damaging.' " ' " (Id. at p. 491.) "Rulings regarding
relevancy and Evidence Code section 352 are reviewed under an abuse of discretion
standard." (People v. Lee (2011) 51 Cal.4th 620, 643.)
In conducting our analysis under Evidence Code section 352, we first examine the
probative value of both the bullet core and the gun found in Perez's vehicle.
Perez argues that the bullet core had little or no probative value in this case
because it was likely not connected in any way to the shooting that occurred on May 22,
2010. Specifically, Perez argues that the bullet core was purportedly old and dirty and
the police debated whether to collect it at all, making it unlikely that it was related to a
shooting that had just occurred. We reject Perez's argument because it is based on a
misunderstanding of the trial testimony.
The jury heard testimony at trial about two different bullets that the police
collected from the scene of the shooting. The first bullet was People's exhibit 58 (also
depicted in the photo in People's exhibit 17), and was examined by the ballistics expert,
who opined that it could have come from a gun like Perez's. That specific bullet was
found in a neighbor's driveway in the same cul-de-sac as Barrojas's house on the morning
after the shooting. The second bullet was depicted in a photograph marked as People's
exhibit 5. The second bullet was a live 357 Magnum round located by the police in a
9 sewer and was very dirty and appeared to be old, so that the police debated whether it
should be collected as evidence. The old and dirty 357 Magnum round is not the bullet
that the ballistics expert testified could have been fired from Perez's gun.
Here, the bullet core was relevant evidence, as there is a reasonable possibility that
it was connected to the shooting for which Perez was being prosecuted. Specifically, the
bullet exited Diaz's torso after passing through it, the bullet core was found early on the
morning after the shooting in a nearby neighbor's driveway, and the bullet's physical
characteristics and location did not rule it out as the bullet that killed Diaz.
Perez also argues that there was no relevance to the fact that police found a
Glock 17, nine-millimeter gun in his car during a traffic stop in August 2010. We
disagree. The gun found in Perez's possession had probative value because it creates a
possible link between Perez and the shooting. For one thing, Andrew testified that based
on his knowledge of firearms, he believed that the gun he saw the shooter using to kill
Diaz could have been a Glock. Therefore, the fact that Perez owned a Glock gun could
be used as one piece of a circumstantial evidence in support of a finding that Perez was
the shooter. Second, Perez's possession of the Glock 17 gun had probative value because
there was a possible link between Perez's gun and the bullet core found on the morning
after the shooting. As the ballistics expert testified, the type of gun found in Perez's
possession was one type of gun that could have fired the bullet core. Thus, although
there was not a strong link between Perez's possession of the gun and the possibility that
he was the shooter, the fact did have some tendency in reason to support the ultimate
finding and was therefore relevant. (See People v. Riser (1956) 47 Cal.2d 566, 577
10 ["When the specific type of weapon used to commit a homicide is not known, it may be
permissible to admit into evidence weapons found in the defendant's possession some
time after the crime that could have been the weapons employed. There need be no
conclusive demonstration that the weapon in defendant's possession was the murder
weapon."].)
Next, considering whether the evidence of the bullet core or Perez's possession of
the Glock 17 was unduly prejudicial, we agree with the trial court that those items did not
give rise to a significant risk of undue prejudice. The ballistics expert made it clear that
she was not able to link the bullet core to the gun that was found in Perez's possession
because the jacket of the bullet was missing, so that the most she could determine was
that Perez's gun was one of several models of guns that could have shot the bullet core.
Based on that unambiguous testimony, it is unlikely that a juror would have jumped to
the unwarranted conclusion that Perez was the shooter merely because he possessed the
type of gun that could have shot the bullet core. Further, as the trial court correctly
pointed out, Perez's possession of a gun, standing alone, does not create a significant risk
of prejudice by evoking an emotional bias against Perez (Scott, supra, 52 Cal.4th at
p. 490) because many law-abiding people possess guns for many different reasons.
In sum, we conclude that the trial court did not abuse its discretion by admitting
evidence relating to the bullet core and Perez's possession of a gun.
B. Sufficient Evidence Supports the Verdict
We next consider Perez's contention that the verdict is not supported by substantial
evidence. Specifically, Perez contends that looking at the evidence as a whole, there is
11 "no more than a scintilla of evidence that [Perez] was the shooter" and that "the greater
balance of the record . . . directly refutes the notion that [Perez] shot [Diaz]." As we will
explain, Perez's argument lacks merit.
In considering a challenge to the sufficiency of the evidence, "we review the entire
record in the light most favorable to the judgment to determine whether it contains
substantial evidence—that is, evidence that is reasonable, credible, and of solid value—
from which a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. . . . We presume every fact in support of the judgment the trier of fact could have
reasonably deduced from the evidence. . . . If the circumstances reasonably justify the
trier of fact's findings, reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a contrary finding. . . . 'A
reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' "
(People v. Albillar (2010) 51 Cal.4th 47, 60, citations omitted.) "Although it is the jury's
duty to acquit a defendant if it finds the circumstantial evidence susceptible of two
reasonable interpretations, one of which suggests guilt and the other innocence, it is the
jury, not the appellate court that must be convinced of the defendant's guilt beyond a
reasonable doubt." (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054, italics added.)
Here, ample evidence supports a finding that Perez was present at the scene of the
crime and was the person who shot Diaz. First, both Andrew and Barrojas were
eyewitnesses who identified Perez as the shooter. Although Barrojas's identification of
Perez as the shooter occurred during interviews with police and not at trial, the jury could
reasonably conclude that Barrojas was telling the truth to the police and not during his
12 trial testimony, as Barrojas admitted that he had been threatened and that his trial
testimony had been influenced by the threats. Further, although Naidene did not see the
shooter, she remembers someone yelling "Sapo" immediately after the shooting, and her
physical description of the shooter was consistent with Perez's characteristics. Hernandez
also told police that Perez was present during the shooting. Although Hernandez testified
differently at trial, the jury could reasonably conclude that his trial testimony was not
credible because he had received threats or was attempting to protect Perez. Perez's cell
phone records also placed him near the scene of the shooting and showed that he had
been communicating with both Hernandez and Barrojas on the evening of the shooting,
and the DNA on the holster found at the scene matched Perez's DNA.
Based on all of these facts, substantial evidence supports a finding that Perez was
the person who shot Diaz.
C. Perez Has Not Established That Defense Counsel Was Ineffective During Closing Argument
During closing argument, defense counsel adopted the strategy of arguing that
Perez was present during the shooting, but that the actual shooter was an unidentified
person, whom all of the witnesses were protecting by falsely identifying Perez.
Specifically, defense counsel argued, "what you have been listening to is the trial of a
man who was a witness to the shooting of Juan Carlos Diaz, the guy who happened to be
there." Defense counsel acknowledged that that "John Perez lied when he said he wasn't
there. He was there." However, she argued that "Nobody wants to tell the truth about
13 who the shooter is. That should be painfully obvious. It should be as equally obvious
that the shooter is not in the courtroom."
Defense counsel then reviewed certain statements that witnesses made to police
when describing the shooting, which could support the inference that the actual shooter
was the other man who was with Perez, but not Perez himself. Among other things, there
was some confusion about Andrew's description to the police of the clothing and
movements of the different men present at the scene, which, along with Andrew's failure
to identify Perez in a photographic lineup, could be interpreted to mean that Andrew had
excluded Perez as the shooter immediately after the shooting. Further, Naidene stated
that she saw the shooter run toward the house after the shooting, which together with
other evidence — including Perez's cell phone records — might have called into doubt
whether Perez was the person who shot Diaz.
Perez contends that defense counsel was ineffective because she took the approach
of conceding that Perez was at the scene of the shooting rather than arguing, at least in
the alternative, that Perez was not there at all.
"Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) A defendant
claiming ineffective assistance of counsel has the burden to show: (1) counsel's
performance was deficient, falling below an objective standard of reasonableness under
prevailing professional norms; and (2) the deficient performance resulted in prejudice.
(Strickland v. Washington (1984) 466 U.S. 668, 687; Ledesma, at pp. 216, 218.)
14 Prejudice is shown when "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome." (Strickland, at p. 694.)
Further, as is important here, "[r]eviewing courts reverse convictions on direct
appeal on the ground of incompetence of counsel only if the record on appeal
demonstrates there could be no rational tactical purpose for counsel's omissions."
(People v. Lucas (1995) 12 Cal.4th 415, 442; see People v. Anderson (2001) 25 Cal.4th
543, 569.) "In the usual case, where counsel's trial tactics or strategic reasons for
challenged decisions do not appear on the record, we will not find ineffective assistance
of counsel on appeal unless there could be no conceivable reason for counsel's acts or
omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.)
"The right to effective assistance extends to closing arguments. [Citations.]
Nonetheless, counsel has wide latitude in deciding how best to represent a client, and
deference to counsel's tactical decisions in his closing presentation is particularly
important because of the broad range of legitimate defense strategy at that stage."
(Yarborough v. Gentry (2003) 540 U.S. 1, 5-6.) "The decision of how to argue to the jury
after the presentation of evidence is inherently tactical[,]" and in that context our
Supreme Court has acknowledged "the importance of maintaining credibility before the
jury." (People v. Freeman (1994) 8 Cal.4th 450, 498.) "[G]ood trial tactics often
demand complete candor with the jury, and . . . in light of the weight of the evidence
incriminating a defendant, an attorney may be more realistic and effective by avoiding
15 sweeping declarations of his or her client's innocence." (People v. Mitcham (1992) 1
Cal.4th 1027, 1060-1061.) Thus, for example, in People v. McPeters (1992) 2 Cal.4th
1148, when several eyewitnesses put the defendant at the scene of the crime, but the
defendant testified that he was not there, our Supreme Court rejected an argument that
counsel was ineffective in closing argument for conceding the defendant's presence.
Counsel was merely taking a strategic approach to "make the best of a bad situation."
(Id. at p. 1187.)
Here, in light of the evidence, defense counsel reasonably could have concluded
that she would lose credibility if she attempted to argue that Perez was not at the scene of
the crime. Perez's cell phone records placed him near the shooting. Further, Perez's
DNA was found on the holster recovered from the crime scene. Either in conversations
with police or at trial, each of the four eyewitnesses placed Perez at the scene of the
shooting. Hernandez, Barrojas and Andrew all stated that Perez was at the scene, and
Naidene heard someone yell Perez's nickname, Sapo.
Although Perez claimed during his police interview that he was not at the scene,
and he attempted to explain cell phone records putting him near the shooting by claiming
that he left his phone in a car all evening and the car was used by someone else, the
evidence undermines that claim. Records of calls between Perez's phone and Hernandez
and Barrojas during the time that Perez was supposedly away from his phone suggest that
Perez was actively using his phone around the time of the shooting.
In sum, because unrefuted evidence put Perez at the scene of the shooting, it was a
reasonable tactical choice for defense counsel to concede Perez's presence at the scene of
16 the shooting and to concentrate instead on the evidence suggesting that Perez may have
been misidentified as the shooter. Perez has accordingly not established ineffective
assistance of counsel.
D. The Trial Court Erred in Not Properly Advising Perez When Accepting Perez's Admission of His Prior Convictions
The operative information alleged that Perez incurred two prior convictions in
1987 that constituted serious and violent felonies under the Three Strikes law.
Immediately following the return of the jury verdicts, the trial court accepted Perez's
admission that he incurred the two prior felony convictions alleged in the information.
Perez contends that the proceedings were defective because the trial court did not
advise Perez of his right to a jury trial, his right to confront witnesses and his right against
self-incrimination, and Perez did not waive those rights. The People concede that the
trial court erred, that the trial court's adjudication of the prior conviction allegation should
therefore be vacated, and this matter should be remanded for further proceedings
regarding the prior convictions. As we will explain, we agree with the People's position.
The trial court engaged in the following dialogue with Perez when accepting his
admission of his prior convictions:
"THE COURT: . . . Mr. Perez, the following priors have been alleged: The first is that on or about September 21st, 1987, in the Superior Court of the State of California for the County of Riverside, you were convicted of the crime of assault with a firearm, a serious and violent felony in violation of Penal Code section 245, [subdivision (a)](2), within the meaning of Penal Code [section] 667, subdivision[s] (c) and (e)(2)(A) and [section] 1170.12, subdivision (c)(2)(a). Sir do you wish to admit or deny that you suffered that prior conviction on September 21st, 1987, for assault with a firearm?
17 "THE DEFENDANT: Admit
"THE COURT: All right. And the second prior is that — oh, it's a special prior offense. It's the same prior."
"[PROSECUTOR]: I'm sorry, Your Honor. It's two counts from the same date but two separate counts, two separate victims.
"THE COURT: Oh, it's two separate victims.
"[PROSECUTOR]: Yes.
"THE COURT: That on or about September 21st, 1987, you were convicted of assault with a firearm, a serious and violent felony in violation of Penal Code section 245[, subdivision (a)](2), and that there were two separate victims of that crime. Do you admit or deny that, sir?
"THE DEFENDANT: Admit
"THE COURT: All right. Anything further, counsel?
"[PROSECUTOR]: No, thank you, Your Honor.
"THE COURT: All right. Then the court finds the special allegations to be true."
Before accepting a criminal defendant's admission of a prior conviction, a trial
court must advise the defendant of the right to a jury trial on the prior, the right to remain
silent, and the right to confront adverse witnesses. (In re Yurko (1974) 10 Cal.3d 857,
863; People v. Mosby (2004) 33 Cal.4th 353, 365, fn. 3 (Mosby) ["Ideally, a defendant
admits a prior conviction only after receiving, and expressly waiving, standard
advisements of the rights to a trial, to remain silent, and to confront adverse witnesses."].)
When a defendant is only partially advised about his rights and does not expressly
waive all of them, the waiver is valid and the admission is effective if, under the totality
of the circumstances, the record establishes that the defendant made a voluntary and
18 intelligent waiver. (Mosby, supra, 33 Cal.4th at pp. 360-361.) However, our Supreme
Court has established that in "[t]ruly silent-record cases," in which there is "no express
advisement or waiver . . . before a defendant's admission of a prior conviction," a court
"cannot infer that in admitting the prior the defendant has knowingly and intelligently
waived [the right to a trial] as well as the associated rights to silence and confrontation of
witnesses." (Id. at pp. 361-362.)
This case presents a classic example of a "[t]ruly silent[ ]record." (Mosby, supra,
33 Cal.4th at p. 361.) The trial court made no attempt whatsoever to advise Perez of his
right to trial, right to silence or right to confrontation of witnesses, or to obtain waivers of
those rights. Accordingly, we cannot infer that Perez understood and voluntarily and
intelligently waived those rights. Perez's admission is therefore ineffective, and we
vacate the trial court's acceptance of Perez's purported admission that he suffered two
prior serious and violent felonies in 1987, and accordingly reverse that portion of the
judgment.6
E. Perez's Motion to Strike His Prior Serious and Violent Felonies Must Be Vacated and Readjudicated After Further Proceedings on the Allegations Regarding Those Prior Convictions
At sentencing, the trial court considered Perez's motion to strike his prior serious
and violent felonies pursuant to People v Superior Court (Romero) (1996) 13 Cal.4th
6 We note that although a defendant has a statutory right to a trial on the fact of his prior convictions by the same jury as made a finding on his guilt on the crimes in the present matter (§ 1025, subd. (b)), the right to double jeopardy does not bar a retrial on the issue of defendants' prior convictions when that statutory provision is not followed. (People v. Saunders (1993) 5 Cal.4th 580, 595.) There is accordingly no bar to a remand for a trial by a different jury on the allegation of Perez's prior convictions. 19 497, 508 (Romero motion). The trial court denied the Romero motion, concluding that
based on Perez's long criminal record, he was not outside the spirit of the Three Strikes
law. Perez challenges the trial court's denial of the Romero motion, contending that it
was based on inaccurate information about his criminal history.
As the parties agree, in light of our disposition vacating the trial court's acceptance
of Perez's admission of his two prior strike convictions, it is premature for us to consider
Perez's challenge to the trial court's denial of the Romero motion, as the fact of those
convictions have not yet been properly established in this case. We therefore need not,
and do not, express a view on whether the trial court abused its discretion in denying the
Romero motion. Instead, we vacate the ruling on the Romero motion so that it may be
renewed if and when the fact of Perez's prior strike convictions is established.
20 DISPOSITION
We reverse the portion of the judgment adjudicating the truth of the allegation that
Perez incurred two serious and violent prior felony convictions and adjudicating the
Romero motion. This matter is remanded for further proceedings consistent with this
opinion. In all other respects, the judgment is affirmed.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
MCDONALD, J.