People v. Hoover CA2/8

Filed 5/23/16 P. v. Hoover CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 EIGHT

THE PEOPLE, B260156

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA133379)
v.

GEORGE CLAY HOOVER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court for the County of Los Angeles.
Michael Shultz, Judge. Affirmed.

Jeffrey J. Gale, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and
Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________
 SUMMARY
A jury convicted defendant George Clay Hoover of criminal threats, stalking, and
causing corporal injury to a person with whom he had a dating relationship. Defendant
admitted two prior strike offenses, and the court sentenced him to 20 years eight months
in prison. On appeal, defendant contends the court should have granted his Penal Code
section 1118.1 motion for judgment of acquittal as to the criminal threats charge, because
the prosecution presented no substantial evidence that his statements to the victim caused
her to be in sustained fear for her own safety. Defendant also contends his admission of
his prior convictions must be set aside because the record does not show the admissions
were voluntary and intelligent under the totality of the circumstances.
We find no merit in either contention and affirm the judgment.
FACTS
The victim in this case, Carmen Winston-Tolliver, lived in Compton with her
daughter (Sequoia Miner), her daughter’s boyfriend (Antwon Jackson), and her two-year-
old granddaughter. She worked as a dispatcher for the Los Angeles Police Department
(LAPD), and had done so for 24 years.
The victim began dating defendant in early 2014. The relationship was “rocky
from the start” because defendant was “very jealous and possessive.” The incidents that
culminated in the criminal charges against defendant occurred in April and May 2014.
The first incident
The victim had a cell phone defendant had given her. Defendant listened to the
messages on the cell phone, and became angry when he heard a message referring to the
victim’s “sexy, yellow ass.” They argued, and the victim told defendant, “I don’t want to
be with you.” They “got back together that night,” but they continued to argue because
defendant “kept bringing up the voice mail.”
The following day, April 14, they continued to argue, by phone, about the
message. “He was mad at me, sayin’ he was going to beat my ass,” and that “nobody
should be calling that cell phone because he purchased it for me.” Defendant told her,
“I’m gonna come over there and f--- you up.” According to the victim, defendant was

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“always sayin’ that. ‘I’m either kill you or I’m gonna f--- you up. I’m gonna beat your
ass.’ So, that day, he was like, ‘I’m gonna come over and stab your ass.’ ” The victim
was not afraid at that time, “because he said it before.” She also said she believed him,
because “[h]e knew I was off work that day,” but she was tired and took a nap.
Defendant woke the victim up “by being at my bedroom window, yellin’,
‘Carmen, if you don’t open the f------ door, I’m comin’ through the mother-f------
window.” The victim “jumped up. I was scared.” (There were fences and two locked
gates, to which she had never given defendant a key, surrounding the victim’s house.)
This “startled the shit out of me. So, of course, I jumped up and I ran to my front door
and opened the door.”
Defendant was drunk. He came in and they argued, again about the cell phone.
Defendant “just didn’t want anybody calling,” and thought the cell phone “should only be
for me and him to use, him to call me and me to call him or my kids.” The argument
ended when he fell asleep in her bed; “[h]e passed out.” According to the victim,
“Whenever we would break up, he would threaten me.” When he appeared “yellin’ at
my window,” the victim “was petrified, but I opened the door ‘cause I didn’t want him
comin’ through my window.” After defendant went to sleep, the victim was not “still
scared” because “once he went to sleep, he was fine. He was asleep.” She woke him up
the next morning and told him to leave because she had to go to work.
The April 15, 2014 incident
The following day, April 15, defendant and the victim were on the phone again,
arguing. Defendant “was mad again,” and the victim told him, “I don’t want to be with
you.” The victim told him not to come over to her house, but defendant said, “ ‘I’m
comin’. I’m comin’. You better believe I’m comin’, and I’m gonna f--- your ass up.’
That’s when he was – like, he was going to stab me. And I could hear him. He didn’t
have a car, but I knew he was comin’ ‘cause I heard him on the train.” Defendant “kept
calling” both her house phone and her cell phone. She kept telling him not to come to her
house, and “[h]e was like, ‘Bitch, f--- you. You gonna die.’ ”

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 The victim told her daughter and Mr. Jackson that “ ‘[defendant] is at it again.
He’s on his way over. He said he gonna stab me.’ ” Ms. Miner and Mr. Jackson “got
scared” and armed themselves with knives and bats. “And the part that made them really
get scared is because [Mr. Jackson] had told [defendant], ‘you know what, my daughter is
here. Don’t come over.’ And I could hear [defendant] through the phone sayin’, ‘F---
you. I’m gonna f------ kill you, too. F--- you and your family. I don’t give a f---.’ ”
Defendant kept calling the victim. “And every time I would answer, he was, like,
threatening me, like, ‘Bitch, don’t hang up the mother-f------ phone on me. I’m on my
way. I’m gonna beat your ass when I get there.” “He called so many times that my voice
message was full, and it holds 45 messages.” The victim said she “was scared to death.
Like, either he was gonna stab me or I was gonna – I was gonna protect myself.”
The victim called 9-1-1, because “if he comes over here, one of us is gonna get
stabbed. I’m sick of it.” (Tapes of two 9-1-1 calls, one at 4:26 p.m. and one at 6:22 p.m.,
were played for the jury. The victim told police that her “ex-boyfriend just called and
said he’s on his way to kill me.”)
Ms. Miner was looking out the window, and told her mother when she saw
defendant arrive. They called the police for the second time. Defendant knocked on the
door, and when the victim did not answer, defendant walked across the street where two
neighbors were standing. He handed a neighbor (who has since died) something that the
victim believed to be a weapon, and looked like a pocketknife to Ms. Miner and
Mr. Jackson. Then, as he was crossing the street, the police detained him. (Deputy
Anthony Bautista, who responded to the 9-1-1 calls, said that none of the three (the
victim, Ms. Miner or Mr. Jackson) mentioned the knife to him.)
When defendant was detained, he told the police he “was very upset and he felt
like either harming himself or harming her.” Deputy Bautista listened to a few of
defendant’s voicemail messages (there were about 10), and saw “over 50” text messages
as well. In the voicemail messages, defendant “was angry,” but there were “[n]o threats
at the time.”

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 Deputy Bautista did not arrest defendant, believing that “the best thing to do
would be to take him to a mental hospital to be evaluated just to make sure that he is
fine.”1 The victim told Deputy Bautista “she wasn’t being threatened at the time, but she
felt scared because he kept calling. But there was nothing there saying that, like, he was
gonna kill her or he was gonna do anything like that at the time.” (The victim testified
that “[i]f I told the deputies I wasn’t scared, it was probably because they were there.
I’ve been scared. I mean, if I’m not with him, he’s just crazy, so I was always in fear.”)
Ms. Miner told Deputy Bautista that she was not in fear; that “it was annoying” and “they
were just tired of the phone calls” and text messages. Mr. Jackson told Deputy Bautista
that “he wasn’t really in fear.”
The next day, someone from the hospital called the victim on behalf of defendant,
telling her defendant’s location and that he was fine. Defendant did not call for
three days, but after he was released, he starting calling again, over 30 times a day. The
victim did not answer for seven or eight days, but finally talked to defendant because she
missed him. They resumed their relationship, which was “good, on and off.” Arguments
continued, and defendant “would just get crazy” when the victim received calls on her
cell phone. He would “[t]alk shit about beatin’ my ass or f------ me up, killin’ me. He
didn’t want anybody callin’ that phone.” The victim did not tell her daughter and
Mr. Jackson that she had resumed her relationship with defendant because they were
“petrified, so I didn’t want them to know that I was back with him.” They found out, and
the victim wrote down defendant’s address and gave it to Mr. Jackson, “’cause I just
didn’t trust [defendant].”
The May 2014 incidents
In May, the victim decided to end the relationship, because “I didn’t want the
threats,” and “I had enough of it.” On either May 10 or May 16, 2014, the victim went

1 Under Welfare and Institutions Code section 5150, a peace officer may, upon
probable cause, take a person into custody for evaluation at a designated facility for up to
72 hours when the person, “as a result of a mental health disorder, is a danger to others,
or to himself or herself . . . .” (Id., subd. (a).)

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to defendant’s apartment in San Pedro to return his garage clicker.2 They argued about
why the victim was ending the relationship, and “then it got volatile where he grabbed me
by my neck, threw me up against the wall, told me I wasn’t leavin’.”
Defendant “was chokin’ me” and saying “if he couldn’t have me, nobody
could . . . .” The victim understood that to mean that he was going to kill her. “[H]e
wasn’t gonna let me be with anybody else, which he has said – he’s said that a lot of
times even to a point where he’s like, ‘I have a bullet with your name on it.’ He was so
possessive.” (At trial, the victim did not remember if defendant made that statement on
the day of the assault, saying, “but, I mean, he’s threatened me so much.”) The victim
was “scared” and crying. She could barely breathe, because “he was chokin’ my
esophagus.”
Defendant let go and the victim tried to walk to the front door, but defendant
grabbed her by her arm, “tellin’ me I’m not going’ no mother f------ where, and that’s
when he drags me into his room,” a distance of about 20 feet. He dragged her onto an air
mattress, and was “just hitting’ me, yellin’, cussin’, and hittin’.” Defendant was
punching her, and he kicked her, too. She tried to fight back and get away, but “he’s way
bigger than me, so he overpowered me.” The episode lasted “[m]aybe an hour” or an
hour and a half. It ended when the victim told defendant she loved him; she was “telling
him what he wanted to hear” so she “could get the hell out of there.” Defendant
eventually let her go home.
The victim was distraught when she left. She was “glad to be leavin’ with my life
‘cause, as crazy as he was acting, he had never done that before.” She did not call the
police or tell her daughter or Mr. Jackson because she was “too embarrassed. I mean, . . .
I work for the police.” She was “all purple with bruises” and did not want her daughter
and Mr. Jackson to see the bruises; she “felt stupid, ‘cause I kept goin’ back to him, and

2 The testimony is not clear about the date of the assault at defendant’s apartment.
The information alleges that defendant made criminal threats on or about May 16, 2014;
stalked the victim on or between April 1 and May 16, 2014; and inflicted the corporal
injury on or about May 10, 2014. The verdict forms reflected those same dates.

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my kids didn’t want me with him in the first place after he did what he did.”
(Photographs of the bruises on her back, arm and leg were placed in evidence at the trial.)
Defendant continued to call and text the victim, “threatenin’ me when I wouldn’t
answer the phone.” Telephone records showed defendant called the victim 30 times on
May 10, and 107 times on May 16. The victim also received 80 or 90 text messages from
defendant on the day of the assault. At some point on May 16, defendant told the victim
over the telephone that he was going to “put a bullet in [her] head.”
When she got home on the day of the assault, the victim called her girlfriend,
Rosana Montoya, and told her everything: that defendant had “basically kidnapped me,
kept me at his house, beat my ass and wouldn’t let me leave, was tellin’ me how he was
gonna kill me.” According to Ms. Montoya, the victim was “scared,” “frightened” and
crying, and Ms. Montoya was “afraid for her.” Ms. Montoya, who also worked for the
LAPD as a dispatcher, telephoned a police lieutenant at her place of work and reported
everything the victim had told her.
At about 10:00 p.m. on May 16, Deputy Bautista again went to the victim’s home,
after being notified by the LAPD “to go to the location in regards to a criminal-threats
call.” He spoke with the victim, who told him that “they got into it over the phone again,
and the defendant threatened her to put a bullet in her head.” Deputy Bautista testified
that “[a]t that point, she said she did not fear for her life.” An emergency protective order
was issued on that date.
After the incidents in May, the victim was “hospitalized two times from severe
stress.” (At the trial in September 2014, the victim testified she “lost over 50 pounds in
the last four months. [¶] I’m still stressed out.”)
Defendant was charged by information with three felonies: criminal threats (Pen.
Code, § 422, subd. (a)), stalking (§ 646.9, subd. (a)), and inflicting corporal injury on a
person with whom he had a dating relationship (§ 273.5, subd. (a)). The information also
alleged two prior serious or violent felony convictions (§ 245, subd. (a)(1)).
At trial, the jury heard the evidence we have just described.

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 At the close of the prosecution’s evidence, defendant moved for a judgment of
acquittal on all counts. (Pen. Code, § 1118.1.) As to the criminal threats count,
defendant argued the prosecutor did not present sufficient evidence “that the criminal
threat allegedly made on the 16th was immediate and unconditional; nor is there any
corroborating evidence beyond the words of [the victim] to even show that such a thing
existed.” The court denied the motion, finding “ample evidence” to go to the jury. The
court observed, as to the criminal threats, that no corroboration was necessary, “although
there’s ample circumstantial evidence of corroboration that [defendant] uttered threats.
Whether they were uttered particularly on that exact date is a little unclear, but, again,
there doesn’t have to be corroboration.”
The defense presented no evidence.
On September 17, 2014, the court announced the jury had reached a verdict, and
then raised the issue of defendant’s prior convictions, as follows:
“Mr. Hoover, I have no idea what the verdict is. I have not seen it, will not
see it until it’s handed over to me; however, in the event of an adverse verdict –
that is a guilty verdict – on each one of the counts, we still have the issue of the
prior convictions. [¶] [Defense counsel] indicated he spoke with you, and at this
time you’re willing to admit the prior convictions; is that correct?
“THE DEFENDANT: Yes, sir, Your Honor.
“THE COURT: All right. Now, you do have the right to have a jury trial
to determine the truth of those prior convictions. In fact, you have the right to
have this jury determine the truth of those prior convictions. And at that jury trial
you have the right to confront and cross-examine the witnesses, the right to remain
silent, and the right to the subpoena power of the court. Those are called your jury
trial rights. [¶] Do you understand those rights?
“THE DEFENDANT: Yes, sir, Your Honor.
“THE COURT: Do you waive and give up those rights with respect to the
priors?
“THE DEFENDANT: Yes, sir, Your Honor.

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 “THE COURT: And do you admit that you suffered a prior conviction in
case BA186571 for Penal Code section 245 -- 245, subdivision (a)(1) on
September 22nd, 1992, in the Los Angeles Superior Court? [¶] Do you admit or
deny?
“THE DEFENDANT: I admit.
“THE COURT: It’s further alleged in the information that you suffered a
prior conviction on January 21st, 1986, for the same offense, Penal Code
section 245(a)(1), in Case No. A, as in apple, 633599. [¶] Do you admit or deny
that prior conviction?
“THE DEFENDANT: Yes. Yes, sir, Your Honor.
“THE COURT: Admit or deny?
“THE DEFENDANT: I admit.
“THE COURT: Counsel, do you join in the admission?
“[DEFENSE COUNSEL]: I do, Your Honor.
“THE COURT: All right. The court finds the defendant understands the
nature of the allegations alleged in the information, as well as the possible
penalties and consequences, as well as the constitutional rights to a jury trial with
respect to the prior convictions. And the court finds the prior convictions true.”
The jury convicted defendant on all counts. The court sentenced defendant to
20 years eight months in prison (the high term of four years, doubled, on the domestic
violence count; the midterm of eight months, doubled, on each of the other two counts,
all to run consecutively; plus two consecutive five-year enhancements for defendant’s
two prior serious felony convictions (Pen. Code, § 667, subd. (a)(1)), and made other
orders not at issue in this appeal.
DISCUSSION
Defendant contends the court should have granted his Penal Code section 1118.1
motion for judgment of acquittal on the criminal threats count, and that his admission of
his two prior convictions should be set aside. Neither claim has merit.

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1. Sufficiency of the Evidence of Criminal Threats
“In ruling on a motion for judgment of acquittal . . . , a trial court applies the same
standard an appellate court applies in reviewing the sufficiency of the evidence to support
a conviction, that is, ‘ “whether from the evidence, including all reasonable inferences to
be drawn therefrom, there is any substantial evidence of the existence of each element of
the offense charged.” [Citations.]’ [Citation.] ‘Where the [Penal Code] section 1118.1
motion is made at the close of the prosecution’s case-in-chief, the sufficiency of the
evidence is tested as it stood at that point.’ [Citation.]” (People v. Cole (2004) 33
Cal.4th 1158, 1212-1213.)
Substantial evidence is “evidence that is reasonable, credible, and of solid value—
from which a reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt.” (People v. Cole, supra, 33 Cal.4th at p. 1212.) “We review
independently a trial court’s ruling under [Penal Code] section 1118.1 that the evidence is
sufficient to support a conviction.” (Id. at p. 1213.)
In People v. Toledo (2001) 26 Cal.4th 221 (Toledo), the court “divide[d] the crime
of criminal threat into five constituent elements . . . .” (Id. at p. 227.) The prosecution
must establish “all of the following: (1) that the defendant ‘willfully threaten[ed] to
commit a crime which will result in death or great bodily injury to another person,’
(2) that the defendant made the threat ‘with the specific intent that the statement . . . is to
be taken as a threat, even if there is no intent of actually carrying it out,’ (3) that the
threat--which may be ‘made verbally, in writing, or by means of an electronic
communication device’--was ‘on its face and under the circumstances in which it [was]
made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the
person threatened, a gravity of purpose and an immediate prospect of execution of the
threat,’ (4) that the threat actually caused the person threatened ‘to be in sustained fear for
his or her own safety or for his or her immediate family’s safety,’ and (5) that the
threatened person’s fear was ‘reasonabl[e]’ under the circumstances.” (Id. at pp. 227-
228, quoting Pen. Code, § 422, subd. (a).)

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 Defendant contends the evidence was insufficient to establish the fourth element:
that the threat actually caused the victim to be in sustained fear for her own safety.
Defendant points to the victim’s testimony about the incidents in April, when she testified
both that she was frightened and feared for her own and her children’s lives, but also
testified that, when she was talking to the police on the day of her 9-1-1 calls, “[a]t that
moment, I wasn’t afraid of him. I mean, I’m not afraid of him.” Defendant also relies on
Deputy Bautista’s testimony that the victim told him that “she didn’t feel threatened at
the time,” and “she kept telling me, no, she did not feel threatened. She kept telling me
that she still loved him . . . .” (Deputy Bautista also testified that “[s]he said she wasn’t
being threatened at the time, but she felt scared because he kept calling.”)
Defendant’s reliance on testimony about the victim’s reaction to the April
incidents is unavailing. The record is clear that the criminal threats charge was founded
on defendant’s conduct in May, when the evidence showed that defendant, during the
physical assault on the victim, and while he was choking her, said “if he couldn’t have
me, nobody could . . . .” The victim testified she understood that to mean that he was
going to kill her, and that made her feel “scared.” Then, over the telephone on May 16,
defendant told the victim he was going to “put a bullet in [her] head.”3 As to that threat,
the only direct evidence about the victim’s reaction came from Deputy Bautista, who said
that “[a]t that point, she said she did not fear for her life.”
We have no difficulty concluding there was substantial evidence that both threats
just described “ ‘actually caused the [victim] ‘to be in sustained fear for . . . her own
safety . . . .’ ” (Toledo, supra, 26 Cal.4th at pp. 227-228.) As to the first threat, we have
the victim’s own testimony that she was “scared” because she understood defendant’s
threat (“if he couldn’t have me, nobody could”) to mean he was going to kill her. The
circumstances of the second threat – which occurred in the wake of a physical assault

3 The court gave a unanimity instruction stating that the defendant was charged with
uttering criminal threats “sometime during the period of May 16, 2014,” that the
prosecution “may have presented evidence of more than one act to prove that defendant
committed this offense,” and that the jury had to agree on which act defendant
committed.

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causing the victim to be “distraught” and “glad to be leavin’ with my life” – fully
justified the inference that the victim continued to fear for her own safety. Deputy
Bautista came to the victim’s home at 10:00 on the evening of May 16, “in regards to a
criminal-threats call,” and the victim told him that defendant had threatened to “put a
bullet in [her] head.” This occurred on the same day she received 107 voicemail
messages from him. It may be that the victim did not think defendant would actually go
so far as to kill her, or it may be that she did not fear for her life “[a]t that point,” because
the police were present. But the evidence as a whole certainly permits (if not compels)
the conclusion, beyond a reasonable doubt, that she continued to fear for her personal
safety. There was no error in the trial court’s denial of defendant’s motion for acquittal.
2. Defendant’s Prior Convictions
Defendant’s other contention is that his admission of his two prior convictions
must be set aside because the record does not show the admissions were voluntary and
intelligent under the totality of the circumstances. Specifically, defendant contends that,
while the trial court advised him of his jury trial rights, the trial court “failed to advise
him of the precise increase in the prison term that might be imposed, the effect on parole
eligibility, and the possibility of being adjudged a habitual criminal as required by”
Supreme Court precedents. Defendant relies on In re Yurko (1974) 10 Cal.3d 857, 862
(Yurko), and People v. Cross (2015) 61 Cal.4th 164, 179 (Cross). We disagree with
defendant’s conclusion.
a. The legal background
The applicable principles are stated in Yurko and in People v. Wrice (1995) 38
Cal.App.4th 767, 770-771 (Wrice).
In Yurko, the court concluded, “as a judicially declared rule of criminal
procedure,” that an accused, before admitting a prior conviction allegation, must be
advised of “the precise increase” in the prison term that might be imposed, the effect on
parole eligibility, and the possibility of being adjudged an habitual criminal. (Yurko,
supra, 10 Cal.3d at p. 864.) “The failure to so advise an accused in the enumerated
instances will constitute error which, if prejudice appears, will require the setting aside of

12
a finding of the truth of an allegation of prior convictions.” (Ibid.; see Cross, supra, 61
Cal.4th at pp. 170-171 [quoting Yurko and describing later precedents clarifying “that
Yurko error is not reversible per se,” and the test is whether the record affirmatively
shows that a plea is voluntary and intelligent under the totality of the circumstances].)4
In Wrice, the Court of Appeal repeated the Yurko rule that a defendant who admits
a prior criminal conviction “must first be advised of the increased sentence that might be
imposed.” (Wrice, supra, 38 Cal.App.4th at p. 770.) “However, unlike the admonition
required for a waiver of constitutional rights, advisement of the penal consequences of
admitting a prior conviction is not constitutionally mandated. Rather, it is a judicially
declared rule of criminal procedure.” (Ibid.; see People v. Wright (1987) 43 Cal.3d 487,
495 [“ ‘Unlike an uninformed waiver of the specified constitutional rights which renders
a plea or admission involuntary . . . , an uninformed waiver based on the failure of the
court to advise an accused of the consequences of an admission constitutes error which
requires that the admission be set aside only if the error is prejudicial to the accused.’ ”].)
Wrice continues: “Consequently, when the only error is a failure to advise of the penal
consequences, the error is waived if not raised at or before sentencing.” (Wrice, at
pp. 770-771, citing People v. Walker (1991) 54 Cal.3d 1013, 1023 [same; “[u]pon a
timely objection, the sentencing court must determine whether the error prejudiced the
defendant, i.e., whether it is ‘reasonably probable’ the defendant would not have pleaded

4 Yurko also held that the decisions in Boykin v. Alabama (1969) 395 U.S. 238 and
In re Tahl (1969) 1 Cal.3d 122 apply to an accused’s admission of prior felony
convictions. (Yurko, supra, 10 Cal.3d at p. 863.) In Boykin, the high court held it was
error to accept a guilty plea “without an affirmative showing that it was intelligent and
voluntary.” (Boykin, at p. 242.) The court explained that we cannot presume a defendant
has waived three important constitutional rights – the privilege against compulsory self-
incrimination, the right to trial by jury, and the right to confront one’s accusers – from a
silent record. (Id. at p. 243.) In Tahl, our own Supreme Court held that each of those
three rights “must be specifically and expressly enumerated for the benefit of and waived
by the accused prior to acceptance of his guilty plea.” (Tahl, at p. 132.) In People v.
Howard (1992) 1 Cal.4th 1132, the court changed the Tahl rule. (Howard, at p. 1178.)
Now, while California still requires explicit admonitions and waivers, “a plea is valid if
the record affirmatively shows that it is voluntary and intelligent under the totality of the
circumstances.” (Id. at p. 1175.)

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guilty if properly advised”]; see People v. Villalobos (2012) 54 Cal.4th 177, 182 [“we
have held that because ‘advisement as to the consequences of a plea is not
constitutionally mandated,’ ‘the error is waived absent a timely objection’ ”].)
b. This case
In this case, defendant has forfeited his claim because he did not raise it at or
before sentencing. In any event, no prejudice appears.
As respondent concedes, the trial court did not advise defendant of the precise
penal consequences of his admissions. The record shows, however that defendant knew
he faced a prison term well in excess of the 20-year eight-month sentence that was
actually imposed.
First, before calling for a panel of prospective jurors to hear the case, the trial
court discussed with defendant a plea offer from the prosecution. The prosecution had
offered a six-year term in state prison and dismissal of the stalking and domestic violence
charges in exchange for a plea to the criminal threats charge. Defendant told the court he
understood the offer and had no questions about it. Then:
“THE COURT: You do understand that if you are convicted of all of the
offenses, you’re looking at a substantial amount of time in prison. Quite frankly,
you’re looking at spending the rest of your life in prison. By my calculation, it
would be somewhere between 35 to life and 85 to life. I actually think it’s 85 to
life, at this point. [¶] But the reason I’m not giving you exact numbers on that is
because I haven’t heard argument from the defense as to why a particular Code
section, called 654, might or might not apply or how the third-strike law is
interpreted. There’s no question you’re looking at life. The only question is how
many years to life that you’re looking at. [¶] You do understand that?
“THE DEFENDANT: Yes, sir, Your Honor.
“THE COURT: Do you have any questions about that?
“THE DEFENDANT: No, Your Honor.”
Second, after defendant was advised of his constitutional rights, waived those
rights, and admitted his two prior convictions (on Sept. 17, 2014), the prosecutor filed a

14
sentencing memorandum seeking the maximum term, calculated to be 38 years four
months to life. The memorandum expressly stated that defendant faced sentencing under
the “Three Strikes” law, and that his two prior convictions added 10 years to his sentence.
Defendant filed a sentencing memorandum requesting a sentence of 10 years eight
months, and asking the court to strike his 1986 prior conviction based on its age.
The trial court struck the 1986 conviction at defendant’s first sentencing hearing,
but recalled the sentence and resentenced defendant several days later, imposing the five-
year enhancements for both prior convictions. Defense counsel expressly conceded “that
the imposition of the two five-year priors cannot be avoided,” and asked the court to
impose the low term on the domestic violence count and concurrent terms on the other
two counts.
Thus the record shows this is a case like Wrice, where the court found the
defendant “was not only aware of the increased penalties, but argued for leniency with
that awareness,” and “also did not object when the judge sentenced him.” (Wrice, supra,
38 Cal.App.4th at p. 771; see ibid. [“Had the imposition of sentence on the enhancement
allegations ‘come as a genuine surprise, it would have been a simple matter to bring the
issue to the attention of the trial court.’ ”].)
In sum, defendant forfeited his claim that he was not advised of the penal
consequences of his admission of his prior convictions. Defendant cites Cross for the
proposition that his claim cannot be forfeited, but Cross involved the trial court’s
acceptance of the defendant’s stipulation, at trial, that he had suffered a prior domestic
violence conviction, subjecting him to a longer prison term, “without advising [the
defendant] of any trial rights or eliciting his waiver of those rights.” (Cross, supra, 61
Cal.4th at p. 168; see People v. Trujillo (2015) 60 Cal.4th 850, 859 [forfeiture doctrine
has no application to advisements of federal constitutional rights given a defendant before
guilty plea is taken].) Here, defendant was fully advised of and waived his jury trial
rights.
But even had defendant not forfeited his claim, the record is clear that the error did
not prejudice him: that is, there is no reasonable probability that defendant would not

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have admitted the truth of his prior convictions if the court had specifically advised him
of the penal consequences when he made those admissions. (Cf. Wrice, supra, 38
Cal.App.4th at p. 771, citing People v. Walker, supra, 54 Cal.3d at p. 1023.) Defendant
was aware before his trial began that he faced the possibility of either 35 years or
85 years to life in prison. His claim that the record does not show his admissions were
voluntary and intelligent is without merit.
DISPOSITION
The judgment is affirmed.

GRIMES, J.
WE CONCUR:
BIGELOW, P. J.

RUBIN, J.

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