Filed 8/2/16 P. v. Melton CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E064173
v. (Super.Ct.No. RIF1301055)
ROBERT EARL MELTON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge.
(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.) Affirmed.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy Utomi,
Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Robert Earl Melton appeals from a judgment of
conviction of selling methamphetamine. (Health & Saf. Code, § 11379, subd. (a).) He
was sentenced to six years in prison as a “second striker.” (Pen. Code, § 667, subds. (c)
& (e)(1).)1 On this appeal, he contends that his admission of a “strike prior” was
improperly received because he was not advised of his constitutional rights prior to the
admission. We disagree. He also contends that his credits were improperly calculated,
and the People agree but point out an arithmetical error with which defendant, in turn
agrees.
I
STATEMENT OF THE CASE
The underlying facts are not relevant to this appeal and may be very briefly
summarized. Defendant sold methamphetamine to an undercover police officer
participating in a “sting” operation. He was convicted after a jury trial.
The information alleged that he had suffered a prior serious or violent felony
conviction, a 1979 conviction for rape in the state of Washington. (§ 667, subds. (c) &
(e)(1).) Before the case was submitted to the jury, defendant waived his right to a jury
trial as to the prior convictions, confirming “You [the judge] can make it.” After the jury
returned its verdict, defendant apparently told counsel that he was under a
conservatorship and counsel declared a doubt as to his competency. (§ 1368.)
Proceedings were suspended.
1 All subsequent statutory references are to the Penal Code.
2
The required reports on defendant’s mental status came back 2-1 for competent
and after the parties submitted on the reports, the trial court found defendant competent
and proceedings resumed. At the sentencing hearing, defense counsel first informed the
court that defendant did not wish to admit the prior. Defendant interjected, “No, that’s
not correct,” and in response to counsel’s surprise continued, “I admit my prior.” After
some discussion with counsel, defendant told the court “the prosecutor’s got to show
three express waivers of when I gave up my constitutional rights. [¶] . . . [¶] It’s Boykin
and Tahl. [¶] . . . [¶] . . . And then it’s People v. Sunstein [sic], and it’s 1994.[2] It’s in
the California code book of 1994. It’s 35.33, page 880. [¶] . . . [¶] He’s got to show that
I gave three express waivers to waiving my rights.”
The court then informed defendant that he would have to use the appropriate
legal mechanism if he wished to attack his prior conviction. Defendant then asserted that
he wanted new counsel, a request which was rejected by the court after the appropriate
hearing under People v. Marsden (1970) 2 Cal.3d 118.
Back in open court, defendant’s counsel expressly advised him that the court
intended to determine whether he had suffered the prior conviction, and asked him
whether he wished to admit that he was the person described in the documentation, or to
“challenge and have the People prove to the judge that you’re that person.” Defendant’s
response was “It was me.” However, defendant also insisted that “when I admitted to it,
it was not a strike.”
2 The correct citation is People v. Sumstine (1984) 36 Cal.3d 909.
3
When the court then explained that the “Three Strikes” law retroactively made the
conviction a “strike,” defendant commented that “There’s a Romero act to strike a
strike.”3 After some discussion of the facts of the prior case in the context of a potential
motion to strike—during which defendant only contested the facts, not his identity as
the person who did whatever had happened, the court in essence asked him if he wished
to admit that he had pleaded guilty to kidnapping and rape. Defendant stated “I did
not. [¶] . . . [¶] I pleaded guilty to one count.” The court then asked “any reason to
conduct a court trial on this matter? Any reason you can think of to conduct a court trial
on this matter, or do you just wish to waive that court trial[4] and admit that you were
convicted in 1979?” Defendant answered “Yeah. I admitted it.” The court then
pronounced sentence.
II
DISCUSSION
There is no dispute that before a defendant admits the truth of a prior conviction
allegation he or she must be advised of the right to a trial on the issue, the right to remain
silent, and the right to confront adverse witnesses. (In re Yurko (1974) 10 Cal.3d 857,
863.)5 The presence of express advisals and waivers on the record establishes that the
3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
4 It will be remembered that defendant had already expressly waived his right to a
jury trial on the issue.
These are commonly referred to as “Boykin-Tahl” advisements after Boykin v.
5
Alabama (1969) 395 U.S. 238, 243 and In re Tahl (1969) 1 Cal.3d 122, 132.
4
defendant’s admission is voluntary and intelligent. (People v. Howard (1992) 1 Cal.4th
1132, 1178-1179.) However, the absence of express advisals and waivers do not
establish the contrary; rather, whether the defendant’s admission was voluntary and
intelligent is determined by the totality of the circumstances if, as here, at least partial
advisals are given. (People v. Cross (2015) 61 Cal.4th 164, 179; People v. Mosby (2004)
33 Cal.4th 353, 356 (Mosby); cf. People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1421
[a “silent-record” case].)
In Mosby, the defendant was informed that he had the right to a jury trial on the
prior conviction allegation. (Mosby, supra, 33 Cal.4th at p. 364.) The same is true here.
However, defendant—as was also the case in Mosby—was not expressly informed of his
rights to remain silent and to confront witnesses. But again like the defendant in Mosby,
defendant here had recently gone through a trial at which he had not testified and at
which counsel had examined witnesses and therefore knew of such rights.
It is true that due to the competency proceedings, several months elapsed from the
rendition of the verdict on February 27, 2015, and the admission of the prior on July 17,
2015. In People v. Lloyd (2015) 236 Cal.App.4th 49, 59-60 (Lloyd), the court declined to
find that an admission made seven months after trial reflected knowledge of the specified
constitutional rights where nothing else supported a conclusion that defendant was
intimately familiar with them. Lloyd is distinguishable. First, we do not agree that the
reference in Mosby to a defendant who has “just” been through trial reflects any specific
time during which the advisals and experience may remain fresh. (See Mosby, supra, 33
5
Cal.4th at pp. 364-365; Lloyd, supra, at p. 59.) Rather, the lapse of time in our view is
but one factor to be used in determining whether, at the time of the admission, defendant
was aware of his rights.
Furthermore, in this case the record is more than sufficient to establish defendant’s
familiarity with his rights. A defendant’s prior experience with the criminal justice
system—and specifically cases in which a plea was presumably preceded by Boykin-Tahl
advice—may be considered in determining a defendant’s legal sophistication. (Mosby,
supra, 33 Cal.4th at p. 365.) Here, that sophistication is more directly expressed. In the
portions of the transcript which we have summarized and from which we have quoted
above, defendant—specifically citing Boykin, Tahl, Sumstine, and Romero—
demonstrated a familiarity with the law involving pleas and admissions, as well as
“strikes,” which would be impressive in a law student, let alone a criminal defendant. He
also expressly stated that “the prosecutor’s got to show three express waivers of when I
gave up my constitutional rights.” The conclusion is inevitable that defendant knew
exactly what these “three” “constitutional rights” were.
As a fallback, defendant suggests that because competency proceedings had
recently been conducted, the court should have taken extra care to ensure that he
understood the rights he was giving up by his admission. But once the court found him
competent, there was no need for unusual concern. (Although we recognize that the court
in fact failed to take even the necessary steps to advise defendant.)
6
Defendant’s other argument is that he is entitled to 249 days of actual custody
credit and 124 conduct credits for a total of 373 days. The amended abstract credits him
with only 239 actual days, although it awards 124 conduct credits which would be
appropriate for 249 actual days. The People agreed with defendant’s legal position but
pointed out that both the court and defendant’s arithmetical calculations were incorrect,
arguing that the correct numbers were 229 actual and 114 conduct credits. Defendant
agrees with this. We will so order.
III
DISPOSITION
The trial court is directed to issue an amended abstract of judgment reflecting 229
days of actual custody and 114 days of conduct credit and forward a copy of the amended
abstract of judgment to the Department of Corrections. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
MILLER
J.
SLOUGH
J.
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