People v. McDade CA2/7 ( 2021 )

Filed 4/13/21 P. v. McDade CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B301180
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA099573)
v.
TONY CLIFTON MCDADE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Edmund W. Clarke, Judge. Affirmed.
Johanna Pirko, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel and John Yang,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
The People charged Tony Clifton McDade with unlawful
driving or taking a vehicle, in violation of Vehicle Code section
10851, subdivision (a), and alleged he had two prior felony
convictions, one for the same offense and one for carjacking. At
trial McDade admitted the prior conviction allegations, and the
court found them true. The jury convicted McDade, and the court
sentenced him to a prison term of six years eight months.
McDade appealed. He argues the trial court, before
accepting his admission of the prior conviction allegations, failed
to adequately advise him of his constitutional rights; in
particular, his rights not to incriminate himself, to a jury trial,
and to confront adverse witnesses. McDade contends that, as a
result, he did not knowingly, intelligently, and voluntarily waive
his rights before admitting the allegations. Because the trial
court sufficiently advised him of his rights, we affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People Charge McDade with Unlawfully Driving
or Taking a Vehicle
McDade broke a car window and stole from the glove
compartment several items, including the spare key to the
owner’s other car. Two days later McDade stole the owner’s other
car. Two weeks after that, police officers observed McDade
removing items from the stolen car. The police arrested McDade
and found the spare key in his pocket.
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The People charged McDade with unlawful driving or
taking a vehicle, in violation of Vehicle Code section 10851,
subdivision (a). The People alleged McDade suffered a prior
conviction, less than a year earlier, for the same offense (id.,
§ 10851, subd. (e); see Pen. Code, § 666.5, subd. (a)), for which he
was on probation. The People also alleged McDade had a prior
conviction for carjacking (Pen. Code, § 215), a serious or violent
felony conviction within the meaning of the three strikes law (id.,
§§ 667, subds. (b)-(i), 1170.12).
B. McDade Does Not Present a Defense at Trial and
Admits the Prior Conviction Allegations
The People called four witnesses; counsel for McDade cross-
examined one of them, but declined to question the other three.
After the People rested, counsel for McDade advised the court
that McDade would not testify or otherwise present a defense.
The court stated, “Mr. McDade, you could testify in your own
defense if you choose to . . . . You also have the right to remain
silent. It’s your right and your right alone. . . . So if you’re going
to rest your case without testifying, I’m assuming that you know
that the choice was yours; that you could testify or you could
remain silent. Am I right that you know that that is your choice
to make?” McDade responded, “Yes, Your Honor.”
Before closing argument, and outside the presence of the
jury, counsel for McDade announced McDade was “willing to
admit his prior convictions” as alleged. The trial court, again
addressing McDade directly, explained that, if he admitted the
allegation of a prior conviction for carjacking, the conviction
would be a serious or violent felony for purposes of the three
strikes law and that, if he admitted the allegation of a prior
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conviction for violating Vehicle Code section 10851, subdivision
(a), the conviction could increase his sentence because the current
offense would be his second violation of that statute. The court
further advised McDade as follows:
“The Court: So, either one of these [alleged prior
convictions], or both, could end up adding to the time that you
would receive on a sentence. You could say nothing, and the
prosecution would have to prove these to the jury; or you could
testify in defense of your case in a separate phase and say, these
aren’t my convictions, they aren’t me, or [they are] for some other
charges. If a reasonable doubt were established, then they
should not be found true.
“If you admit to me that those are true, I will find them
true, and then I’ll wait to see if they come into play or not; but
any chance of presenting it to the jurors, any chance of testifying,
any chance of challenging these as true will be gone if you admit
that these prior convictions are true.
“With that in mind, do you wish to admit that each of the
prior convictions that I’ve described is true?
“[McDade]: Yes, Your Honor.
“The Court: I accept your admission. I find true each of
the allegations of prior convictions. I find that you voluntarily
admitted them and knowingly and intelligently waived the rights
associated with the jury trial, and the right to a court trial. The
court takes no action regarding those admissions. They don’t
come into play unless there is in fact a conviction.”
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C. The Jury Convicts McDade, and the Trial Court
Sentences Him
The jury convicted McDade of unlawful driving or taking a
vehicle. Prior to sentencing, McDade filed a motion under People
v. Superior Court (Romero) (1996) 13 Cal.4th 497 to dismiss his
prior serious or violent felony conviction for purposes of the three
strikes law. In his motion McDade stated he “admitted that he
suffered a prior conviction [for carjacking] and also admitted to a
probation violation” for his prior conviction for unlawfully taking
or driving a vehicle. The court denied the Romero motion and
sentenced McDade to a prison term of six years eight months,
consisting of the middle term of three years under Penal Code
section 666.5, subdivision (a), doubled under the three strikes
law, plus a consecutive term of eight months for violating
probation. McDade timely appealed.
DISCUSSION
McDade argues he did not knowingly, intelligently, and
voluntarily admit the prior conviction allegations because the
trial court only “cryptically” advised him of his constitutional
rights before accepting his admission and because “there is no
way to discern whether [he] knew that his trial rights extended to
trial on the prior convictions.” We conclude that, even if the trial
court did not explicitly advise McDade of all of his rights before
accepting his admission, under the totality of the circumstances
McDade understood his rights and knowingly, intelligently, and
voluntarily waived them.
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A. Applicable Law and Standard of Review
“When a criminal defendant enters a guilty plea, the trial
court is required to ensure that the plea is knowing and
voluntary. [Citation.] As a prophylactic measure, the court must
inform the defendant of three constitutional rights—the privilege
against compulsory self-incrimination, the right to trial by jury,
and the right to confront one’s accusers—and solicit a personal
waiver of each. [Citations.] Proper advisement and waiver of
these rights, conducted with ‘the utmost solicitude of which
courts are capable,’ are necessary ‘to make sure [the accused] has
a full understanding of what the plea connotes and of its
consequence.’” (People v. Cross (2015) 61 Cal.4th 164, 170; see
Boykin v. Alabama (1969) 395 U.S. 238, 243-244 [89 S.Ct. 1709,
23 L.Ed.2d 274]; In re Tahl (1969) 1 Cal.3d 122, 130-133.) “[T]he
same requirements of advisement and waiver apply when a
defendant admits the truth of a prior conviction allegation that
subjects him to increased punishment.” (Cross, at p. 170; see
ibid. [“‘Boykin and Tahl require, before a court accepts an
accused’s admission that he has suffered prior felony convictions,
express and specific admonitions as to the constitutional rights
waived by an admission’”]; In re Yurko (1974) 10 Cal.3d 857, 863
[same].) Lack of proper advisement “‘compels a determination
that the waiver was not knowingly and intelligently made.’”
(Cross, at p. 170.)
A trial court’s failure to properly advise a defendant of his
or her rights before accepting an admission, however, “‘is not
reversible “if the record affirmatively shows that [the admission]
is voluntary and intelligent under the totality of the
circumstances.”’” (People v. Farwell (2018) 5 Cal.5th 295, 302;
see People v. Sivongxxay (2017) 3 Cal.5th 151, 167 [we “examine
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the totality of the circumstances” in deciding “whether a
defendant knowingly and intelligently waived his rights in
entering a guilty plea”]; see also Farwell, at p. 303 [totality of the
circumstances test “applies in all circumstances where the court
fails, either partially or completely, to advise and take waivers of
the defendant’s trial rights before accepting a guilty plea”];
People v. Cross, supra, 61 Cal.4th at pp. 179-180 [same].) “‘[I]n
applying the totality of the circumstances test, a reviewing court
must “review[ ] the whole record, instead of just the record of the
plea colloquy.”’” (Farwell, at p. 302; see Cross, at pp. 179-180.) A
review of the entire record “sheds light on defendant’s
understanding” of his or her rights and the implications of
waiving those rights. (People v. Mosby (2004) 33 Cal.4th 353,
365.) “For instance, ‘a defendant’s prior experience with the
criminal justice system’ is . . . ‘relevant to the question [of]
whether he knowingly waived constitutional rights’” because
“previous experience in the criminal justice system is relevant to
a recidivist’s ‘“knowledge and sophistication regarding his [legal]
rights.”’” (Ibid.; see Sivongxxay, at p. 173, fn. 8 [“relevant
circumstances include not only the colloquy, but also defendant’s
prior criminal history, other events before and after the waiver
was entered, and the fact that defendant was represented by
counsel”].)
B. Under the Totality of the Circumstances McDade
Knowingly, Intelligently, and Voluntarily Waived His
Rights
After counsel informed the trial court McDade would
admit the prior conviction allegations, the court advised McDade
that a true finding on the allegations could subject him to an
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increased sentence. For that reason, the court stated, McDade
had two options: He “could say nothing” or he could testify and
deny the allegations. In advising McDade that he could remain
silent, the court effectively apprised him of his right not to
incriminate himself. In fact, that was the second time the court
advised McDade of that right; earlier in the trial, when counsel
informed the court McDade would not be presenting a defense,
the court advised McDade that he had the right not to testify (as
well as the right to testify). McDade stated he understood and he
chose not to testify. (See People v. Mosby, supra, 33 Cal.4th at
p. 364 [a defendant who “had just undergone a jury trial at which
he did not testify . . . not only would have known of, but had just
exercised, his right to remain silent at trial”].)
The trial court also told McDade that, if he chose not to
admit the allegations, “the prosecution would have to prove these
to the jury,” but that, if he admitted the allegations, “any chance
of presenting [them] to the jurors . . . will be gone.” The trial
court also stated that, even if McDade said nothing, the People
would still have to prove the allegations. There was nothing
“cryptic” about this advisement. The court was telling McDade
that he had a right to a jury trial on the prior conviction
allegations and that he would lose that right if he admitted the
allegations (which confirmed he had such a right to lose).
And although the court did not specifically mention
confrontation, McDade knew he had the right to confront and
cross-examine the witnesses the People would call to prove the
prior conviction allegations because he had already exercised that
right earlier in the trial and witnessed what the exercise of that
right looked like. Counsel for McDade cross-examined one of the
four prosecution witnesses at the trial and had the opportunity to
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cross-examine the others. McDade understood he would have
that same right in a trial on the prior conviction allegations. (See
People v. Mosby, supra, 33 Cal.4th at p. 364 [“because [defendant]
had, through counsel, confronted witnesses at the immediately
concluded trial, he would have understood that at a trial he had
the right of confrontation”].)
Other circumstances confirmed that McDade understood
his constitutional rights and knowingly, intelligently, and
voluntarily waived them. McDade was familiar with his
constitutional rights and what it meant to waive them. He had a
criminal history, which included pleading no contest to the same
offense less than a year earlier. (See People v. Mosby, supra,33 Cal.4th at p. 365 [defendant’s previous experience completing
a Boykin/Tahl form advising him of his constitutional rights
before pleading guilty “sheds light on defendant’s understanding”
of those rights, especially where the defendant pleaded guilty to
“‘the very conviction that he was now admitting’”].) Because
McDade “‘knew he did not have to admit [the prior conviction
allegations] but could have had a jury or court trial, had just
participated in a jury trial where he had confronted witnesses
and remained silent, and had experience in pleading guilty in the
past’” (Mosby, at p. 365), McDade knowingly, intelligently, and
voluntarily admitted the prior conviction allegations in this case.
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DISPOSITION
The judgment is affirmed.
SEGAL, Acting P. J.
We concur:
FEUER, J.
McCORMICK, J.*
* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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