People v. Tapia CA2/8 ( 2021 )

Filed 9/15/21 P. v. Tapia CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B305572
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA099077-03)
v.
ALISHA NICOLE TAPIA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Vincent H. Okamoto, Judge. Affirmed in
part, reversed in part, and remanded with directions.
Kathleen Caverly and Olivia Meme, under appointment by
the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt Bloomfield and Michael C. Kellar,
Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________
Alisha Nicole Tapia appeals from a judgment of 35 years to
life for first degree burglary, attempted first degree burglary,
vandalism, and misdemeanor possession of burglary tools.
On appeal, Tapia contends: (1) the conviction for attempted first
degree burglary must be reversed because it was a lesser
included offense of the first degree burglary conviction; (2) the
trial court abused its discretion when it admitted evidence of her
prior convictions; (3) the trial court abused its discretion when it
failed to strike at least one of her prior convictions pursuant to
People v. Superior Court (Romero) (1996) 13 Cal.4th 497; (4) the
admonishments given for the prior conviction allegations were
deficient resulting in an involuntary admission; (5) the trial
court’s sentence of 35 years to life violates the California
Constitution’s prohibition against cruel and unusual punishment;
and (6) the case should be remanded for several sentencing
errors. We agree Tapia’s attempted burglary conviction must be
reversed. We also agree the admonition was deficient rendering
the prior conviction admissions involuntary. We remand for
further proceedings on the prior conviction allegations and for
resentencing. We otherwise affirm the judgment.
FACTS
On October 21, 2018, Lloyd Quiggle and Patricia
Ziegler were inside their home in Manhattan Beach when they
heard a loud noise. Quiggle found a stepladder propped against
the scaffolding surrounding their house, which was in the process
of being painted. He then heard crashing glass and ran towards
the sound. He yelled to Ziegler that someone was on the
scaffolding. At the front of the house, he saw Tapia climbing
down the scaffolding, wearing white painter’s overalls and a
ventilator mask with “a small crowbar in her pocket.” He
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demanded to know what she was doing. She said “sorry, sir,” and
ran away with Quiggle in pursuit. When Quiggle saw Tapia had
stopped to take off the painter’s overalls and mask, he took a
photo to help the police apprehend her. Quiggle fractured his foot
trying to jump over a wall while chasing Tapia.
The investigating officer recovered the overalls, the
ventilator mask, and the crowbar where Tapia had left them.
Quiggle and Ziegler discovered a broken window on the third
floor, a cut in a first floor window screen, a cut in the third floor
sliding glass door screen, and a tear in the plastic covering the
master bedroom exterior door. The window appeared to be
shattered by a blunt object, such as the crowbar. The broken
window was boarded up and replaced for a total cost of $1,250.
A July 19, 2019 information charged Tapia with attempted
first degree burglary (count 1; Pen. Code, § 664/4591), vandalism
(count 2; § 594, subd. (a)), possession of burglary tools (count 3;
§466), and first degree burglary with persons present (count 4;
§§ 459, 667.5, subd. (c)(21)). It was further alleged as to counts 1,
2, and 4 that Tapia suffered two prior serious felonies under
section 667, subdivision (a)(1) and suffered two prior strikes
under the Three Strikes law.2
At trial, the People presented evidence of the incident as
described above. Tapia testified in her own defense. She
1 All further section references are to the Penal Code unless
otherwise specified.
2 There are minor discrepancies in the record regarding the
total number of prior serious felonies suffered by Tapia. Those
discrepancies do not affect our disposition or analysis.
3
explained she had been addicted to methamphetamine for the
past 15 years. In 2013, she pleaded guilty to six counts of first
degree burglary and was sentenced to five years in prison. When
she was released on parole in 2017, she was homeless. On the
night before the incident, Tapia stayed in a motel smoking
methamphetamine with Joseph Navarro and Louis Lopez, whom
she met through a friend in prison. Navarro told Tapia it was
Lopez’s birthday and they decided to go to the beach that
morning to drink. Lopez drove and stopped at Home Depot.
He claimed he needed to buy something for his mother. Navarro
and Tapia waited outside for him and Tapia did not see what he
purchased. In the car, Tapia continued to smoke
methamphetamine and took four to five shots of tequila. She
testified she was still coherent, however.
Navarro received a phone call when they arrived at
Manhattan Beach and Lopez dropped him off. Lopez then parked
the car near Quiggle and Ziegler’s house. Lopez told Tapia he
wanted to rob their house and he knew she could do it due to her
prior convictions. Lopez told Tapia she had been smoking
methamphetamine for free and now she needed to “make some
money.”
When Tapia refused, he hit her and choked her by pressing
the crow bar against her throat. He held her by the hair while
she put on the painter’s overalls. Tapia walked to the side of the
house as Lopez watched. She feared for her life and believed she
could not outrun Lopez. She observed people in the home and
decided to make a loud noise to alert them and create a diversion.
She broke a window with the crowbar. When Quiggle came
outside, Tapia apologized to him. She then ran away to escape
Lopez.
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Tapia explained, “I just didn’t know what to do” “[b]ecause
I’m on parole. I’m high. I’m under the influence.” Tapia denied
intending to steal anything. She also denied cutting a window
screen or ripping plastic off the master bedroom door.
The jury found Tapia guilty on all counts. In a bifurcated
proceeding, Tapia admitted the six prior convictions for first
degree residential burglary alleged under the California Three
Strikes law, as well as under section 667, subdivision (a), with
one of the convictions occurring in 2007 and five of them
occurring in 2013. The trial court sentenced Tapia to an
indeterminate term of 25 years to life as a third strike, plus an
additional five years for each of the two prior serious felony
counts under section 667, subdivision (a).
Tapia timely appealed.
DISCUSSION
I. The Attempted Burglary Conviction
Tapia seeks reversal of her conviction for attempted
burglary because it is a lesser included offense of burglary.
According to Tapia, both charges arose from a single course of
conduct. We agree.
“While section 654 prohibits multiple punishment, it is
generally permissible to convict a defendant of multiple charges
arising from a single act or course of conduct. [Citations.]
However, a ‘judicially created exception to this rule prohibits
multiple convictions based on necessarily included offenses.
[Citations.]’ [Citation.] [¶] When a defendant is found guilty of
both a greater and a necessarily lesser included offense arising
out of the same act or course of conduct, and the evidence
supports the verdict on the greater offense, that conviction is
controlling, and the conviction of the lesser offense must be
5
reversed. [Citations.] If neither offense is necessarily included in
the other, the defendant may be convicted of both, ‘even though
under section 654 he or she could not be punished for more than
one offense arising from the single act or indivisible course of
conduct.’ [Citation.]” (People v. Sanders (2012) 55 Cal.4th 731,
736.)
Attempted burglary is a lesser included offense of burglary.
(People v. Michaels (1961) 193 Cal.App.2d 194, 198.) Accordingly,
Tapia may be convicted of both attempted burglary and burglary
of the Quiggle and Ziegler house only if the two crimes were not
part of an indivisible course of conduct.
The Attorney General contends the evidence supports a
finding that Tapia’s attempted burglary and burglary were not
part of the same course of conduct because the attempted
burglary charge was based on the cut to the window screen on the
first floor while the burglary charge was based on the broken
window on the third floor. Tapia could have left the area after
she cut the first floor window screen but she engaged in a new
course of conduct by moving the ladder to the scaffolding,
climbing to the third floor, and breaking the window.
We are not persuaded. The “multiple entries were
‘committed pursuant to one intention, one general impulse, and
one plan.’ ” (People v. Montoya (1994) 7 Cal.4th 1027, 1046, fn.
10.) Unlike the cases cited by the Attorney General — People v.
Washington (1996) 50 Cal.App.4th 568 and In re William S.
(1989) 208 Cal.App.3d 313 — there was no time delay between
one entry and the other because Tapia did not leave the property
and later return. The cutting of the screen on the first floor and
the breaking of the window on the third floor occurred
immediately after one another as part of a single course of
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conduct with one intention. Accordingly, Tapia’s conviction for
attempted burglary must be reversed.
II. Evidence of the Prior Convictions
Next, Tapia challenges the trial court’s decision to admit
her prior convictions at trial. She contends the record fails to
affirmatively demonstrate the trial court weighed the probative
value of the prior convictions with the risk of undue prejudice as
required by Evidence Code section 352 (section 352).
Additionally, Tapia asserts that the trial court abused its
discretion when it declined to exclude the 2007 conviction as
remote. Lastly, she contends the burglary convictions should
have been sanitized. We conclude the record discloses the trial
court was aware of and fulfilled its duties under section 352. We
hold the trial court properly exercised its discretion in admitting
the prior convictions.
A. Proceedings Below
The People’s theory of the prior convictions’ admissibility
rested on two grounds: (1) impeachment, and (2) evidence of prior
bad acts under Evidence Code section 1101, subdivision (b).
Before trial commenced, the People filed a motion to
impeach Tapia with her prior felony convictions for first degree
residential burglary and grand theft of a firearm in 2007 and six
counts of first degree residential burglary in 2013, if she chose to
testify. During trial, defense counsel raised the issue of Tapia’s
potential testimony and requested the trial court either exclude
the number of burglary convictions she suffered in 2013 or
exclude the 2007 conviction because it was more distant in time.
Defense counsel argued, “the introduction of so many convictions
would be more prejudicial than probative, would be highly
prejudicial since it’s a similar type of charge. And the jury could
7
easily conclude that based on her history, her several [burglaries]
on her record[,] that she committed this one as well.”
The prosecutor retorted the prior convictions were also
relevant to counter Tapia’s defense that she acted under duress.
Thus, according to the prosecutor, the prior convictions were
admissible not only to impeach her credibility but also to show
intent and absence of mistake to the jury. The trial court denied
the request, finding that under the relevant legal authorities,
“she could be impeached on any or all of those felonies.”
B. Legal Principles
Evidence of a prior felony conviction may be used for
purposes of impeachment in any criminal proceeding. (Cal.
Const., art. I, § 28, subd. (f); see also Evid. Code, § 788.) The
California Supreme Court has limited the admissibility of prior
convictions to those which necessarily involve moral turpitude.
(People v. Castro (1985) 38 Cal.3d 301, 306 (Castro).) Burglary is
a crime involving moral turpitude. (People v. Edwards (2013) 57
Cal.4th 658, 722.) “ ‘When determining whether to admit a prior
conviction for impeachment purposes, the court should consider,
among other factors, whether it reflects on the witness’s honesty
or veracity, whether it is near or remote in time, whether it is for
the same or similar conduct as the charged offense, and what
effect its admission would have on the defendant’s decision to
testify.’ [Citation.]” (Id. at p. 722 [discussing factors articulated
in People v. Beagle (1972) 6 Cal.3d 441, 453 (Beagle), abrogated
on other grounds by People v. Diaz (2015) 60 Cal.4th 1176, 1190].)
A court is not required to exclude a prior conviction because it is
too similar to the current charge. (People v. Tamborrino (1989)
215 Cal.App.3d 575, 590.)
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Additionally, evidence that a person committed a crime
may be relevant to prove motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident. (Evid. Code, § 1101, subd. (b).) “To satisfy this theory
of relevance, charged and uncharged crimes need only be
‘sufficiently similar to support the inference that the defendant
“ ‘ probably harbor[ed] the same intent in each instance.’
[Citations.]” ’ ” (People v. Demetrulias (2006) 39 Cal.4th 1, 15.)
Notwithstanding its admissibility for impeachment
purposes or under Evidence Code section 1101, subdivision (b), a
trial court retains the discretion to exclude evidence of a prior
conviction under section 352. (People v. Wheeler (1992) 4 Cal.4th
284, 296; People v. Castro, supra, 38 Cal.3d at p. 306; People v.
Clark (2021) 62 Cal.App.5th 939, 957.) That is, the trial court
may “exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of
misleading the jury.” (§ 352.) “Prejudice for purposes of
Evidence Code section 352 means evidence that tends to evoke an
emotional bias against the defendant with very little effect on
issues, not evidence that is probative of a defendant’s guilt.”
(People v. Crew (2003) 31 Cal.4th 822, 842.)
We review a trial court’s decision to admit or exclude
evidence of a prior conviction for an abuse of discretion. (People
v. Hinton (2006) 37 Cal.4th 839, 887; People v. Green (1995) 34
Cal.App.4th 165, 183 (Green).)
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C. The Trial Court Was Aware of Its Duty Under
Section 352
We first address whether the trial court failed to fulfill its
duties under section 352. The People contend Tapia has forfeited
the issue because defense counsel failed to request that the trial
court expressly weigh the relevant factors under section 352
when it indicated it was “inclined” to admit the evidence. The
People have failed to present any authority that requires a
defendant to make such a request or risk forfeiture; People v.
Townsel (2016) 63 Cal.4th 25, 66, cited by the People, merely
holds that a failure to object on a specific ground forfeits that
specific challenge on appeal. There was no forfeiture.
It is well established that a “ ‘trial judge need not expressly
weigh prejudice against probative value—or even expressly state
that he has done so.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 40.)
Instead, the record must demonstrate the trial court understood
and fulfilled its responsibilities under section 352. (People v.
Lucas (1995) 12 Cal.4th 415, 449.)
Here, the court heard argument regarding the probative
value of the evidence as well as its potential for prejudice.
Specifically, defense counsel argued “the introduction of so many
convictions would be more prejudicial than probative, would be
highly prejudicial since it’s a similar type of charge.” He also
asserted the 2007 conviction was less probative because it was
remote in time. The prosecutor then argued the evidence was
admissible not only for impeachment purposes, as stated in its
motion in limine filed prior to trial, but it was probative to
counter Tapia’s duress defense. The discussion, although short,
covered at least three of the “guideline” factors identified in
Beagle: the crime’s relevance to the trait of untruthfulness (its
10
impeachment value); the closeness or remoteness in time of the
conviction to the crime charged; and the similarity of the offenses.
(See People v. Beagle, supra, 6 Cal.3d at p. 453.) Given the
parties’ arguments, which the trial court considered, we are
convinced the trial court understood its discretion under section
352 to exclude the evidence. The record shows the trial court
“ ‘understood and fulfilled its responsibilities under . . . section
352. Nothing more was required.’ [Citation.]” (People v. Lucas,
supra, 12 Cal.4th at p. 449.)
D. Remoteness and Failure to Sanitize
Tapia acknowledges the prior convictions “may have been
relevant” both to impeach her and to demonstrate her intent or
lack of mistake under Evidence Code section 1101, subdivision
(b). However, she contends the 2007 conviction was nevertheless
subject to exclusion under section 352 because it was remote in
time. She also contends all of the convictions were required to be
sanitized. We disagree.
1. The 2007 Conviction
“Remoteness for purposes of [Evidence Code] section[s] 352
and 1101, subdivision (b) is measured differently than
remoteness for purposes of impeachment. For the latter, the
question often turns on whether the person has led a blameless
life, demonstrating that the person no longer has the propensity
to lie generally imputed to convicted felons. [Citation.] For the
former, the question is whether the prior conduct is so old that it
is not reasonable to conclude it speaks to a person’s current
mental state. [Citations.]” (People v. Williams (2018) 23
Cal.App.5th 396, 422, fn. 9.) Generally, both questions relate to
whether the passage of time has diminished the current
11
probative value of the prior conviction or the alleged prior bad
act.
If a defendant continues to engage in criminal conduct
despite the passage of time, decisional law has routinely found no
error even if the prior conviction may have occurred a decade or
more ago. In Green, supra, 34 Cal.App.4th at page 183, the trial
court admitted a 20-year-old prior conviction because the
defendant’s 1973 conviction was followed by five additional
convictions in 1978, 1985, 1987, 1988, and 1989. In finding no
error, the court of appeal reasoned that “ ‘the systematic
occurrence of [appellant’s] priors over a 20-year period create[d] a
pattern that [was] relevant to [his] credibility.’ ” (Ibid.)
Similarly, Tapia has not led a legally blameless life since
2007, as she suffered six convictions in 2013. Tapia also
admitted she was on parole for the 2013 convictions at the time of
her arrest for the current crimes. Based on her criminal history
from 2007 to the time of committing the instant charges in 2018,
the prior convictions were relevant for both impeachment and as
evidence of prior bad acts to counter her testimony that she
committed the offenses under duress. As such, the 2007
conviction was not remote.
Even if the 2007 conviction was less probative of Tapia’s
intent due to its age, its admission was harmless given Tapia’s
six other convictions in 2013. It is not reasonably probable she
would have obtained a better result absent the error. (People v.
Watson (1956) 46 Cal.2d 818, 836.)
2. Sanitizing the Prior Convictions
Tapia contends the trial court should have sanitized her
prior convictions by allowing the prosecutor to refer only to a
generalized descriptor of the crime (e.g., theft-related offenses)
12
because her prior convictions were also for burglary. Tapia has
forfeited this issue. (Green, supra, 34 Cal.App.4th at p. 182,
fn. 9.) At trial, Tapia did not request the prior convictions be
sanitized. She merely requested the trial court either exclude the
2007 conviction or exclude the number of 2013 convictions.
In any event, as we have discussed, the burglary
convictions were admissible under Evidence Code section 1101,
subdivision (b) on the issue of intent. Sanitizing them as “theft-
related offenses” would reduce or eliminate their probative value
because the charged crimes and the prior crime would no longer
demonstrate “ ‘the recurrence of a similar result . . . [that] tends
to establish (provisionally, at least, though not certainly) the
presence of the normal, i.e., criminal, intent accompanying such
an act. . . .’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th at
p. 402.) In this context, it is the similarity of the acts that gives
the evidence its probative value – here the prior commission of
residential burglaries.
III. Admission of the Prior Convictions Was Not
Voluntary and Intelligent
Tapia admitted she suffered six prior convictions for
residential burglary in a post-trial hearing. She contends her
admission was not voluntary and intelligent because she was not
told of, and thus did not expressly waive, her rights to remain
silent and to confront adverse witnesses. We agree.
A. Proceedings Below
The trial on Tapia’s prior convictions was bifurcated from
the trial on the charged offenses. Immediately following the
verdict, defense counsel waived Tapia’s right to a jury trial on the
prior convictions on her behalf. On February 3, 2020,
approximately three-and-a-half months after she was found
13
guilty by the jury on October 23, 2019, the parties reconvened for
a post-trial hearing. The prosecutor took Tapia’s waivers and
admission of her prior convictions as follows:
“[Prosecutor]: Ms. Tapia, in case number YA099077, you
have the right to a court trial on your priors. Do you waive and
give up that right and admit that on December 17th, 2007, you
were convicted of one count of first degree residential burglary in
violation of [Penal] [C]ode section 459 in case NA076088?
“The Defendant: Yes.
“[Prosecutor]: And do you also admit that on September
19th, 2013, you were convicted of five counts of first degree
residential burglary in violation of Penal code section 459 in case
number NA094785?
“The Defendant: Yes.
“[Prosecutor]: Counsel, do you join?
“[Defense Counsel]: Yes.
“[Prosecutor]: People join as well.
“The Court: Thank you. The record will reflect that the
defendant has admitted [the] prior two convictions, two counts of
burglary.”
The matter was then continued to a later date for probation
and sentencing.
B. Legal Principles
“[B]efore accepting a criminal defendant’s admission of a
prior conviction, the trial court must advise the defendant and
obtain waivers of (1) the right to a trial to determine the fact of
the prior conviction, (2) the right to remain silent, and (3) the
right to confront adverse witnesses. [Citation.] Proper
advisement and waivers of these rights in the record establish a
defendant’s voluntary and intelligent admission of the prior
14
conviction. [Citations.]” (People v. Mosby (2004) 33 Cal.4th 353,
356 (Mosby); see People v. Cross (2015) 61 Cal.4th 164, 170
(Cross) [discussing Boykin–Tahl requirement that the trial court
ensure a guilty plea is knowing and voluntary]; Boykin v.
Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.)
Failure to provide express advisement and to obtain
waivers are no longer subject to automatic reversal. (Mosby,
supra, 33 Cal.4th at p. 360.) “[I]f the transcript does not reveal
complete advisements and waivers, the reviewing court must
examine the record of ‘the entire proceeding’ to assess whether
the defendant’s admission of the prior conviction was intelligent
and voluntary in light of the totality of circumstances.
[Citation.]” (Mosby, supra, 33 Cal.4th at p. 361.)
In Mosby, supra, 33 Cal.4th at page 364, the defendant was
told he had a right to a jury trial on a prior conviction allegation
and, after waiving that right, admitted the truth of the allegation
“immediately after a jury found him guilty of selling cocaine.”
The court found the defendant’s admission of his prior conviction
was voluntarily and intelligently made under the totality of the
circumstances, despite the trial court’s failure to expressly advise
the defendant and obtain an express waiver of his right to
confrontation and his right to be free from compulsory self-
incrimination. (Ibid.)
It reasoned because the defendant entered his admission
after he had “just undergone a jury trial at which he did not
testify” but his codefendant did, the defendant “not only would
have known of, but had just exercised, his right to remain silent
at trial, forcing the prosecution to prove he had sold cocaine.
And, because he had, through counsel, confronted witnesses at
that immediately concluded trial, he would have understood that
15
at a trial he had the right of confrontation.” (Mosby, supra, 33
Cal.4th at p. 364.) The court also observed the defendant’s prior
conviction was the result of a guilty plea and he would have been
advised of his Boykin–Tahl rights in the earlier case. (Mosby, at
p. 365.) Further, the court noted that unlike the trial that the
defendant had just undergone, “trial on a prior conviction is
‘simple and straightforward,’ often involving only a presentation
by the prosecution ‘of a certified copy of the prior conviction along
with defendant’s photograph [or] fingerprints’ and no defense
evidence at all.” (Id. at p. 364.)
In People v. Lloyd (2015) 236 Cal.App.4th 49, 59–60
(Lloyd), the court found the defendant’s admission of his five
prior convictions was not voluntary and intelligent because it was
not made until seven months after his trial. “In the interim, [the]
defendant’s trial counsel declared a conflict of interest and was
relieved as counsel of record, new counsel was appointed to
represent [the] defendant, and the matter was continued a
number of times for trial on the state prison priors and
sentencing.” (Id. at p. 59.) Further, the appellate record did not
include information regarding whether the prior convictions were
a result of a guilty plea or a trial. The court concluded, “On this
record, defendant’s experience in the criminal justice system does
not permit a reasonable inference he was aware of and intended
to waive his right to silence and confrontation by admitting the
state prison priors.” (Id. at p. 60.)
C. Analysis
Our facts are closer to Lloyd than to Mosby. We conclude
Tapia’s admission of her prior convictions was not intelligent and
voluntary in light of the totality of circumstances. Here, there is
no dispute Tapia was informed of her right to a trial and waived
16
that through her counsel. She was not expressly informed of her
right to remain silent or of her right to confrontation.
As in Lloyd, Tapia had not “just” undergone a trial where
her counsel confronted witnesses through cross-examination.
Instead, over three months had elapsed between the time of trial
and her admission. Moreover, unlike the defendant in Mosby
who exercised the right to remain silent by not testifying, Tapia
testified at trial. Accordingly, we may not infer, as the Mosby
court did, that Tapia would have known of her right to remain
silent at trial. Given these circumstances, a reasonable inference
may not be drawn that Tapia was aware of and intended to waive
her rights to silence and confrontation when she admitted the
prior convictions.3 As a result, Tapia’s admission of her prior
convictions was not intelligent and voluntary.
3 We observe Tapia was also not advised of the penal
consequences of her admission as required by the Supreme Court
in In re Yurko (1974) 10 Cal.3d 857 (Yurko), which extended
Boykin–Tahl advisements to when a criminal defendant admits a
prior conviction allegation that subjects him or her to increased
punishment. In Yurko, the high court unanimously held that
“henceforth an accused must be advised of (1) specific
constitutional protections waived by an admission of the truth of
an allegation of prior felony convictions, and (2) those penalties
and other sanctions imposed as a consequence of a finding of the
truth of the allegation.” (Id. at p. 860; People v. Cross, supra, 61
Cal.4th at pp. 170–171.) As a result of this “judicially created
rule of criminal procedure[,]” the trial court must advise the
defendant “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.” (Cross, supra, at pp. 171,
179, citing Yurko, supra, 10 Cal.3d at pp. 863–864.)
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IV. The Remaining Contentions are Moot
Our determination that Tapia’s prior conviction admissions
were involuntary because the admonition was deficient requires
that the judgment imposed be vacated, the case remanded to
either conduct a priors trial, or, to take new waivers, and to
conduct re-sentencing. As such, the remaining contentions Tapia
raised (abuse of discretion for not striking a prior conviction
allegation pursuant to Romero/judgment imposed was cruel and
unusual punishment under the California Constitution/various
sentencing issues) are rendered moot.
DISPOSITION
The conviction for attempted burglary (count 1) is reversed.
The true finding on the allegations that Tapia suffered two prior
convictions is reversed and the judgment imposed is vacated.
The matter is remanded for further proceedings on the prior
conviction allegations and resentencing. Upon resentencing, the
trial court is instructed to prepare an amended abstract of
judgment and to transmit it to the Department of Rehabilitation
and Corrections. The judgment is otherwise affirmed.
OHTA, J.*
We concur:
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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STRATTON, Acting P. J. WILEY, J.
19