People v. Hodges CA5

Opinion

Filed 9/21/26 P. v. Hodges CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F088894 Plaintiff and Respondent, (Super. Ct. No. BF192540A) v. JAMES HODGES, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Vicki Hightower, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Ian Whitney and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- Defendant James Hodges was charged with obstructing or resisting Monique D., an executive officer in the performance of her duties (Pen. Code,1 § 69 [count 1]); obstructing or resisting Melvin G., an executive officer in the performance of his duties (§ 69 [count 2]); battery against Monique D., a peace officer engaged in the performance of her duties (§ 243, subd. (c)(2) [count 3]); and indecent exposure with two prior convictions therefor (§ 314, subd. 1 [count 4]). As to all counts, the information alleged defendant was previously convicted of first degree burglary (§ 460, subd. (a)), which qualified as a “strike” offense under the Three Strikes law (§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)) and rendered him eligible for state prison (§ 1170, subds. (f), (h)(3)). The information also asserted two circumstances in aggravation: (1) defendant’s prior convictions are numerous or of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)); and (2) defendant has served a prior term in prison (id., rule 4.421(b)(3)). During a hearing on the parties’ motions in limine, defense counsel voiced concern that the prosecution would allude to defendant being on parole for an earlier indecent exposure offense at the time of the charged offenses. At the trial court’s suggestion and in defendant’s presence, defense counsel stipulated defendant had a prior indecent exposure conviction. During a subsequent pretrial hearing, defendant waived his right to be physically present in court. Thereafter, during another pretrial hearing, defense counsel agreed to bifurcation of the prior conviction and aggravating circumstance allegations and requested a bench trial thereon. The jury found defendant guilty as charged on all substantive offenses. In the bifurcated proceeding, the trial court found true the allegations defendant was previously convicted of indecent exposure on two occasions, he was previously convicted of first degree burglary, his prior convictions are numerous and of increasing seriousness, and he 1 Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.

2. served a prior prison term. Defendant received an aggregate term of 10 years in state prison: six years (the doubled upper term) on count 1, a consecutive 16 months (one- third the doubled middle term) on count 2, a consecutive 16 months (one-third the doubled middle term) on count 3, and a consecutive 16 months (one-third the doubled middle term) on count 4. On appeal, defendant makes several contentions. First, the trial court’s true findings as to the prior conviction and aggravating circumstance allegations must be reversed because defendant never expressly and personally waived his right to a jury trial thereon. Next, the felony conviction on count 4 must be reduced to a misdemeanor because defendant was not advised of and did not waive his Boykin2-Tahl3 rights before defense counsel stipulated to a prior indecent exposure conviction. Finally, the trial court erroneously imposed separate punishment on count 3 because the battery was “incident[al] to one objective” and “committed concurrently with the resisting arrest by threats or violence charges.” We conclude: (1) defendant’s express and personal waiver of his jury trial right as to the prior conviction allegations was unnecessary; (2) although defendant did not expressly and personally waive his jury trial right as to the circumstances in aggravation, the error was not prejudicial; (3) Boykin-Tahl admonitions were unwarranted; and (4) substantial evidence supported the imposition of separate punishment on count 3.

STATEMENT OF FACTS Defendant and Jose G.—both parolees—lived at a residential treatment facility in Bakersfield. On December 7, 2022, during a group session, Jose witnessed defendant “playing with his penis” “underneath his sweatpants.” After defendant “got erect[],” he 2 Boykin v. Alabama (1969) 395 U.S. 238.

3 In re Tahl (1969) 1 Cal.3d 122.

3. “proceeded to take it out” and “looked at [Jose] in the face.” On December 8, 2022, Jose reported the incident to a counselor. On December 8, 2022, parole agent Melvin G. visited the facility to see one of his parolees. Upon his arrival, he was asked by a staff member to take disciplinary action against defendant for masturbating during a group session. Melvin encountered and relayed the foregoing request to his supervisor, parole agent Monique D. In turn, Monique contacted defendant’s parole agent and received instructions to arrest defendant for violating the terms of his parole and transport him to county jail. Melvin, Monique, and another parole agent went to defendant’s room, informed him about a parole violation, and handcuffed him. As defendant was being escorted out of the facility, he asked “what he was being arrested for.” When Monique told him “he was alleged to have committed an act of indecent exposure,” defendant insisted “the staff … [was] lying” and “trying to sabotage [him].” Outside the facility, the agents tried to seat defendant in the back of their vehicle, but he “dropped his weight to the ground.” Defendant remarked, “Yeah, I’m not going back to jail. I just got out. This is not fair. You know, these staff [members] are trying to lie about me.” As Melvin and Monique were placing him into the vehicle, defendant “flailed his legs”—kicking Melvin multiple times—and attempted to headbutt them. Once defendant was inside, Monique tried to buckle the seatbelt. As she was doing so, he spat on her and then bit her twice, first on her left wrist and then on her right wrist. The second bite caused profuse bleeding. Because of defendant’s recalcitrance, the agents contacted the Bakersfield Police Department for extra assistance.

PROCEDURAL BACKGROUND

I. Pretrial proceedings A hearing on the parties’ motions in limine was held on September 19, 2024. Present were the prosecutor, the defendant, and defendant’s attorney. Defense counsel 4. filed a motion asking the court—among other things—to order the prosecution “not to refer to, interrogate any witness concerning, comment on, or attempt to suggest to the jury in any way concerning any prior conduct or criminal acts concerning previously charged crimes .…” In particular, counsel did not want the prosecution to mention defendant was on parole for indecent exposure at the time of the December 7, 2022 incident. The court noted it “[did not] know how [to] get around” defendant’s parolee status given he was apprehended by parole agents for a parole violation. The court also recognized defendant’s prior conviction for indecent exposure would elevate a conviction on count 4 from a misdemeanor to a felony and necessitated two separate jury instructions: CALCRIM No. 1160 (“Indecent Exposure”) and CALCRIM No. 3100 (“Prior Conviction: Nonbifurcated Trial”). The following exchange occurred:

“THE COURT: … [¶] … [¶] So, [defense counsel], one way of doing this would be for you to stipulate that he had a prior [conviction for violating section] 314. That would not come in during the course of the trial, and we would not have to deal with a bifurcation, just give [CALCRIM No.] 1160 as it is, and deal with it … in that fashion.

“[DEFENSE COUNSEL]: And so the idea would be the jury would just be submitted the [charge of] indecent exposure [on count 4] as a felony. They wouldn’t have any idea whether [there] was a prior or not, and just enter a verdict, and I would stipulate that there was a prior so that there would be a felony conviction.

“THE COURT: Right. If you stipulate, it would then make it a felony, and the jury would hear nothing about any priors.

“[DEFENSE COUNSEL]: I’d stipulate to that.

“THE COURT: Okay. The jury won’t hear … defendant’s prior conviction for [violating section] 314. We’ll play it clean. The … defense will stipulate that he has suffered that prior conviction, and we’ll handle it that way. [¶] So make sure your people don’t discuss that, [prosecutor]. Explain to them to stay away from any prior conviction by … defendant.

“[PROSECUTOR]: Okay.”

5. On September 23, 2024, defendant refused to be transported to court. The court commented:

“We do have a jury [panel] outside waiting to come in. My understanding is … that even though I had a removal order for him from the jail with reasonable force, apparently [defendant] was so disruptive this morning at the jail that law enforcement/transportation did not feel that bringing him down here was the best move. Apparently, he was naked and threatening and wanted to fight, et cetera.

“So we’ve had [defendant] in court twice. Once was when we originally got the case and were waiting on motions and a few other things; so we trailed it to the next day. [¶] [Defendant] had a little outburst there, but I was going to discuss that with him the next day when we did the motions, which was on Thursday[, September 19, 2024]. So I didn’t talk to him about his behavior at all.

“When we came back on Thursday to do the motions, he sat there perfectly quiet. I explained everything to him. He was here in court. There wasn’t a single issue…. I explained to him what we were going to do today, and, apparently, he had quite an issue this morning.

“Now, my gut instinct was to go ahead and continue, in light of the fact that he had voluntarily removed himself from this. But I’ve had an in custody who’s refused transportation. I have not notified him of his right and obligation to appear. I have not notified him of the fact that he cannot act disorderly, disruptive[ly], and disrespectful[ly] in the court, and that we can carry on without him, and he can absent himself voluntarily, but I haven’t explained any of that to him. [¶] … [¶] So what we unfortunately find oursel[ves] in is that … I just have not had the opportunity to discuss with him the ramifications of acting like that.

“So, apparently, the sheriff’s office doesn’t want to bring him down today, and they are the boots on the ground there, and I will acquiesce to their evaluation of the situation. We will have him brought back tomorrow. Hopefully, I can make sure that they try to get him here, unless there’s an absolute issue with it … like we had this morning tomorrow, then we’d have to address getting him here somehow in a different fashion so I could speak with him. But I think it’s a wash for today.” Thereafter, the jury panel was excused.

6. On the morning of September 24, 2024, defendant was transported to court after he was “pepper spray[ed]” by law enforcement officials. The following exchange occurred:

“THE COURT: … [¶] … [¶] … You’re in custody, and if you refuse transport, you have an obligation to appear, but the trial can proceed without you if you’re not here. Okay? [¶] You have a right to remain silent, and your absence is voluntary, if you refuse to come in, and that’s a voluntary waiver of your right to be here and to confront the witnesses against you. Okay? [¶] And I’m informing you now that your defense counsel will be present and he will proceed and we will proceed without you, if you voluntarily absent yourself from these proceedings. Okay? [¶] So … you appear to be quiet and ready to go this morning. [¶] Do you understand what’s going on?

“THE DEFENDANT: Yes.

“THE COURT: Do you have any questions of me?

“THE DEFENDANT: No. [¶] … [¶]

“THE COURT: Would you like to stay and sit over here at counsel table, or what is your preference?

“THE [DEFENDANT]: I would like to be removed. I don’t agree with this; so I don’t need to be here. My mind is going – “THE COURT: You don’t want to be here. [¶] Can you tell me why?

“THE [DEFENDANT]: Truth will come out. If people not commit perjury and do the right thing, truth will come out. I don’t have nothing to hide. I don’t have to go along. The truth is if this is really a court of law and justice, then the justice shall set me free; so – “THE COURT: So … do you want to sleep on it and have you come back tomorrow and ask you?

“THE DEFENDANT: I wish not to have to come back at all.

“THE COURT: Okay. So you’re telling me you don’t want to be here today and you don’t want to be here for the rest of the trial?

7. “THE DEFENDANT: No.… I have faith in the judicial system, that they will do the right thing.

“THE COURT: Okay. But I – Mr. Hodges, I just need to hear are you waiving your right to be here today and for the rest of the trial?

“THE DEFENDANT: I’m waiving my right.

“THE COURT: You are. [¶] Okay. [Defense counsel]?

“[DEFENSE COUNSEL]: No comment.

“THE COURT: [Prosecutor]?

“[PROSECUTOR]: Submit it.

“THE COURT: Okay. Mr. Hodges, we’ll go ahead and have you taken out, then, sir. [¶] Would you like me to bring you back at all to see if you change your mind, or no?

“THE DEFENDANT: Nope.

“THE COURT: Okay. All right, gentlemen. [¶] Thank you very much, sir. Have a good day.” Defendant, defense counsel, and the court subsequently signed a waiver form. It read:

“Waiver of Defendant’s Personal Presence “I, James Hodges, having been advised of my right to be present at all stages of the proceedings, including the right to the presentation of and arguments on questions of fact and law, and to the right to confront and cross examine all witnesses, hereby waives the right to be present at the trial and any related proceeding in this case. I request the court to proceed during my absence pursuant to this waiver, and agree that my interest is represented by the presence of my attorney as if I were personally present in court with him, and further agree that notice to my attorney that his presence in court is required on set date and time is notice of the same to me.” In the afternoon of September 24, 2024, the trial court and counsel discussed bifurcation. The following exchange occurred:

“THE COURT: … [¶] … [¶] [Prosecutor], you were inquiring about a bifurcation as to which charge?

8. “[PROSECUTOR]: I believe all the felonies have prior enhancements, and there’s also the [two circumstances in aggravation] .… “THE COURT: [Defense counsel], first things first. As to the [circumstances in aggravation], I don’t remember if you indicated when we were discussing this earlier or not whether you’d want a trial by jury on the [circumstances in aggravation] or by Court, in light of the fact that … [this] is going to be by docket or paper.

“[DEFENSE COUNSEL]: I’m wanting a Court trial.

“THE COURT: Court trial. Okay. [¶] Then we would have a Court trial, if there’s a guilty verdict, [prosecutor]. We would have a Court trial on those particular enhancements.

“[PROSECUTOR]: Okay.

“THE COURT: So they would be bifurcated. The jury wouldn’t get it.

“[PROSECUTOR]: Would that also include the [Three Strikes sentencing scheme]?

“THE COURT: Yeah. The priors, the jury is not going to hear that. [¶] [Defense counsel], in light of the fact that, once again, we wouldn’t be getting into those priors, it’s just going to be a review of documentation, a Court trial on that as well?

“[DEFENSE COUNSEL]: Right. And I stipulated to the priors for the purposes of the jurors getting the instruction without any knowledge of priors.

“THE COURT: Very good. [¶] Yes, I do remember that. That was kind of an agreement we had. [¶] … [¶] … And then as to the enhancements, that would be by a Court trial, which would be in front of me on the strikes, and the [circumstances in aggravation].

“[PROSECUTOR]: Okay.… [D]efendant doesn’t need to waive?

“THE COURT: Defendant has turned everything over to [defense counsel].

“[PROSECUTOR]: Okay. [¶] … [¶]

“[DEFENSE COUNSEL]: One other thing, Your Honor.

9. “THE COURT: Yes, sir.

“[DEFENSE COUNSEL]: At the conclusion of the prosecution’s case, I think we should bring … defendant back to waive his right to testify, assuming he wants to do that. Because I don’t think we really went over that, and I think that it may be premature to go over that until the evidence is closed by the prosecution.

“[PROSECUTOR]: I believe that language is … included in the waiver. At least the end of it.

“THE COURT: I’ll tell you what, [counsel]. Let me take a look at that, and they wouldn’t be concluding by tomorrow anyway.

“[DEFENSE COUNSEL]: Right.

“THE COURT: So let me take a look at that. I’ll have an answer for you in the morning.” On September 25, 2024, before the jury was sworn in the following exchange occurred:

“[PROSECUTOR]: Your Honor, … has the Court made a decision whether we’re going to bring back … defendant?

“THE COURT: I believe that the waiver that we spoke to him about and … the written waiver will be sufficient. However, the law states that I may bring him back, and at this point my tentative is to not bring him back, … but I haven’t heard the evidence yet. So depending on how it goes, I may or may not. So the tentative is he will not be coming back unless something, during the course of the testimony, triggers the fact that he needs to come back and we need to speak to him.” Defense counsel did not object thereto. Defendant did not return to court.

II. Jury instructions Prior to closing arguments, the trial court instructed the jury. Among other things, the court issued CALCRIM No. 1160:

“Count 4.… [D]efendant is charged in [c]ount 4 with indecent exposure, in violation of … [s]ection 314. To prove … defendant is guilty of this crime, the People must prove that, one, … defendant willfully exposed his genitals in the presence of another person or persons who might be offended or annoyed by … defendant’s actions, and, two, when … 10. defendant exposed himself, he acted lewdly by intending to direct public attention to his genitals for the purpose of sexually arousing or gratifying himself or another person or sexually offending another person.

“Someone acts willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. It is not required that the person actually see the exposed genitals.”

III. Bifurcated bench trial On September 30, 2024, after the jury found defendant guilty of the substantive offenses, the trial court conducted a bifurcated trial on the prior conviction and aggravating circumstance allegations. The prosecutor provided a section 969b packet, which contained, among other things:

(1) A June 9, 2004 abstract of judgment from Los Angeles County (case No. YA057440) reflecting defendant’s conviction for unlawful possession of a firearm by a felon (former § 12021, subd. (a)(1)) and a two-year prison term;

(2) A June 10, 2004 abstract of judgment from Los Angeles County (case No. TA067309) reflecting defendant’s conviction for vandalism (§ 594) and a two-year prison term;

(3) A May 26, 2005 abstract of judgment from Los Angeles County (case No. YA061721) reflecting defendant’s conviction for unlawful possession of a firearm by a felon (former § 12021, subd. (a)(1)) and a 16-month prison term;

(4) A December 19, 2005 abstract of judgment from Los Angeles County (case No. YA061945) reflecting defendant’s conviction for brandishing a deadly weapon other than a firearm (§ 417, subd. (a)(1)) and a 16-month prison term;

(5) An October 7, 2009 abstract of judgment from Kern County (case No. BF120106A) reflecting defendant’s conviction for obstructing or resisting an executive officer in the performance of his or her duties (§ 69), a prior prison term enhancement (§ 667.5, former subd. (b)), and a 28-month prison sentence;

(6) An October 13, 2009 abstract of judgment from Kern County (case No. BF124254A) reflecting defendant’s conviction for willful failure 11. to appear on a felony charge (§ 1320.5) and an eight-month prison term;

(7) A January 24, 2012 abstract of judgment from Kern County (case No. BF138992A) reflecting defendant’s conviction for first degree burglary (§ 460, subd. (a)) and a four-year prison term;

(8) A December 10, 2012 abstract of judgment from Kern County (case No. SF016607A) reflecting defendant’s conviction for indecent exposure with a prior conviction therefor (§ 314, subd. (1)), a prior prison term enhancement (§ 667.5, former subd. (b)), and a five-year prison sentence;

(9) A June 15, 2016 abstract of judgment from Sacramento County (case No. 15F05222) reflecting defendant’s conviction for indecent exposure (§ 314, subd. 1) and a 16-month prison term;

(10) An August 17, 2022 abstract of judgment from San Joaquin County (case No. STK-CR-2019-13215) reflecting defendant’s conviction for indecent exposure with a prior conviction therefor (§ 314, subd. (1)) and an eight-month prison term; and (11) An October 11, 2022 abstract of judgment from Solano County (case No. FCR337145) reflecting defendant’s two separate convictions for indecent exposure with a prior conviction therefor (§ 314, subd. (1)) and a 16-month prison term. The prosecutor also provided a 22-page California Law Enforcement Telecommunications System (CLETS) printout of defendant’s criminal history information. After reviewing the aforementioned documents, the court pronounced:

“It does appear to the Court that … defendant has suffered the prior conviction as alleged, a violation of … [s]ection 460[, subdivision ](a).… Out of the County of Kern, date of conviction, 12/22/11. That was a plea in case number BF138992A. And find … defendant guilty of suffering that prior [section] 460[, subdivision ](a) conviction, which is a strike conviction, and I will find that that was alleged on all four counts and find him guilty thereof for that strike, on all four counts.

“As to … [c]ount 4, … there are two prior convictions, case out of Kern County, SF016607A, on or about May 23, 2012, for Mr. Hodges.… [A]n abstract from Sacramento County for [defendant].… [T]he crime was 12. committed in 2015. The date of conviction of 6/15/16, case ending in F05222.

“Find … defendant has suffered those two previous [section] 314[, subdivision 1 conviction]s, … therefore make [c]ount 4 a felony, per the agreement that the jury would not hear that, that I would make that finding by way of Court trial if there was … a guilty verdict on [c]ount 4.

“Therefore, we do have two prior convictions for the same, and as a result, that will be a guilty verdict for [c]ount 4. The jury has found him guilty, but with the two priors, that will make it the felonies.

“Lastly, we have the [circumstances in aggravation] as to all counts, [California Rules of Court, rule] 4.421(b)(2), that Mr. Hodges’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous and of increasing seriousness, and [California Rules of Court, rule] 4.421(b)(3), that he served a prior prison term.

“The Court, in reviewing the [section] 969b packet, does see that he served a prior prison term. He will therefore be found guilty of that [circumstance in aggravation], that [circumstance] is true, and as to the lengthy criminal record, … [b]ased on the 22-page rap sheet and the conviction for this crime and the date of convictions in the [section] 969b [packet], the Court will find that to be true and … defendant guilty thereof.”

DISCUSSION

I. Defendant’s express and personal waiver of his right to a jury trial on the prior conviction allegations was unnecessary. As noted, the trial court found true the allegations defendant was previously convicted of indecent exposure on two separate occasions, which elevated the indecent exposure conviction on count 4 to a felony. (§ 314 [“Upon the second and each subsequent conviction under subdivision 1 of this section, … every person so convicted is guilty of a felony, and is punishable by imprisonment in state prison.”].) The court also found true the allegation he was previously convicted of first degree burglary, which triggered the Three Strikes sentencing scheme (§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)) and required him to serve his sentence in the state prison (§ 1170, subds. (f), 13. (h)(3)). On appeal, defendant contends these findings must be reversed because he never expressly and personally waived his right to a jury trial thereon. “Under the Fifth and Sixth Amendments to the United States Constitution, ‘any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.’ [Citations.]” (People v. Wiley (2025) 17 Cal.5th 1069, 1078 (Wiley).) However, “[an] exception to the jury trial right for ‘the fact of a prior conviction’ has long been recognized in the [United States Supreme Court]’s precedent. [Citations.]” (Id. at p. 1079; see, e.g., Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”].) In California, “[t]he right … to a jury trial of prior conviction allegations derives from sections 1025 and 1158, not from the state or federal Constitution[s].” (People v. Epps (2001) 25 Cal.4th 19, 23; accord, People v. Gallardo (2017) 4 Cal.5th 120, 125, 127.) “Whenever, for purposes of enhancing the sentence on current charges, the prosecution alleges a prior conviction sustained by the defendant, and the defendant disputes the allegation, the question whether he or she ‘has suffered’ the prior conviction must, unless a jury is waived, be submitted to a jury in the current proceeding.” (People v. Nguyen (2009) 46 Cal.4th 1007, 1015, italics added, quoting §§ 1025, subds. (a), (b), 1158.) While the California Constitution contemplates waiver of the jury trial right “by the consent of both parties expressed in open court by the defendant and the defendant’s counsel” (Cal. Const., art. I, § 16), this requirement of a defendant’s “express, personal waiver” (People v. Vera (1997) 15 Cal.4th 269, 278) “applies to the constitutional right to a jury trial, … not to jury trial rights that are established only by statute” (People v. French (2008) 43 Cal.4th 36, 46 (French).) (See People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5 [“The rule that a waiver of the constitutional right to a jury trial must be 14. express has no application to the statutory right to have the same jury that determined [the] defendant’s guilt of the currently charged offenses determine the truth of alleged prior convictions.”].) Thus, the premise upon which defendant rests his argument vis-à- vis the trial court’s prior conviction findings is flawed. Waiver of a defendant’s statutory jury trial right may be made by defense counsel. (See, e.g., People v. Thomas (2001) 91 Cal.App.4th 212, 214–215.) Here, defendant’s counsel requested a bifurcated bench trial on the prior conviction allegations, among other things. (See id. at p. 215.) Defendant waived his right to be physically present in court, so did not object to the waiver. (See People v. Saunders, supra, 5 Cal.4th at p. 589 [“[D]efendant’s failure to object precludes his obtaining appellate relief on the basis of the [purported] statutory error committed by the trial court.”]; cf. French, supra, 43 Cal.4th at p. 46 [“[A] ‘[d]efendant’s failure to object … would not preclude his asserting on appeal that he was denied his constitutional right to a jury trial.”].) Even assuming, arguendo, defense counsel’s waiver on defendant’s behalf was somehow improper, absent this purported error, “it is not ‘reasonably probable that a result more favorable [to defendant] would have been reached’ [citation] if the jury, instead of the court, had determined that defendant ‘suffered’ [citation] the prior convictions.” (People v. Epps, supra, 25 Cal.4th at p. 29; see ibid. [Watson4 harmless error test applies where “error is purely one of state law”].) Documents provided by the prosecution unequivocally demonstrated defendant was previously convicted of indecent exposure on at least two separate occasions as well as first degree burglary on yet another occasion. (See People v. Miles (2008) 43 Cal.4th 1074, 1083 [“Absent rebuttal evidence, the trier of fact may presume that an official government document, prepared contemporaneously as part of the judgment record and describing the prior conviction, is truthful and accurate. Unless rebutted, such a document, standing alone, is sufficient 4 People v. Watson (1956) 46 Cal.2d 818.

15. evidence of the facts it recites about the nature and circumstances of the prior conviction.”].)

II. Failure to secure defendant’s express and personal waiver of his right to a jury trial on the circumstances in aggravation was not prejudicial. “Under California law, most felonies carry a ‘determinate’ prison sentence consisting of one of three possible terms, designated the lower, middle, and upper terms.” (People v. Nguyen (1999) 21 Cal.4th 197, 201.) Section 1170, subdivision (b)(2) reads in part:

“The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” (Accord, Cal. Rules of Court, rule 4.420(b).) Circumstances in aggravation are set forth in California Rules of Court, rule 4.421. As noted, the trial court found true two aggravating circumstance allegations: (1) defendant’s prior convictions are numerous or of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)); and (2) defendant has served a prior term in prison (id., rule 4.421(b)(3)). On appeal, defendant contends these findings must be reversed because he never expressly and personally waived his right to a jury trial thereon. “Under the federal Constitution and [the] state Constitution, a defendant in a criminal proceeding has a right to a jury trial” (People v. Sivongxxay (2017) 3 Cal.5th 151, 166 (Sivongxxay)) and is “entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm” (Wiley, supra, 17 Cal.5th at p. 1086, fn. omitted). A defendant “may assert the right to a jury trial, may waive jury in favor of a court trial, or may waive trial altogether.” (Wiley, supra, at p. 1086.) “When the constitutional right to jury trial is involved, … an express 16. waiver [is required] even in cases in which the circumstances make it apparent that all involved—the trial court, the prosecutor, defense counsel, and the defendant—assumed that the defendant had waived or intended to waive the right to a jury trial.” (French, supra, 43 Cal.4th at p. 47; see Cal. Const., art. I, § 16; Sivongxxay, supra, at p. 166 [“Waiver must be ‘express[ed] in words … and will not be implied from a defendant’s conduct.’ ”].) Here, the record shows defendant actively resisted being brought to the courtroom. When the trial court advised that his refusal to attend would constitute “a voluntary waiver of [his] right to be here and to confront witnesses against [him]” and the matter would “proceed without [him],” defendant stated he “would like to be removed,” “wish[ed] not to have to come back at all,” and was “waiving [his] right” to be physically present. In a signed waiver form, defendant attested he was “advised of [his] right to be present at all stages of the proceedings, including the right to the presentation of and arguments on questions of fact and law, and to the right to confront and cross examine all witnesses”; “waive[d] the right to be present at the trial and any related proceeding in this case”; “request[ed] the court to proceed during [his] absence pursuant to this waiver”; “agree[d] that [his] interest is represented by the presence of [his] attorney as if [he] were personally present in court with him”; and “agree[d] that notice to [his] attorney that his presence in court is required on set date and time is notice of the same to [him].” Nothing indicates defendant expressly or personally waived his right to a jury trial on the circumstances in aggravation. (Cf. Sivongxxay, supra, 3 Cal.5th at p. 166 [the defendant “acknowledges that he expressly stated on the record that he gave up his right to a jury trial”].) Even the Attorney General concedes in the respondent’s brief “this waiver may not be broad enough to constitute a valid waiver of [defendant]’s jury trial rights .…” This does not end our inquiry, however.

17. “When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman[5] standard of review. [Citations.] Under that standard, ‘a sentence imposed under … section 1170[, subdivision ](b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.’ [Citations.] Lack of a jury trial is not harmless under Chapman if ‘the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue. [Citations.]” (Wiley, supra, 17 Cal.5th at p. 1087.) Conversely, “failure to submit a sentencing factor to a jury may be found harmless if the evidence supporting that factor is overwhelming and uncontested, and there is no ‘evidence that could rationally lead to a contrary finding.’ [Citations.]” (French, supra, 43 Cal.4th at p. 53.) Here, the documents provided by the prosecution demonstrated overwhelmingly and undisputedly that defendant had at least 11 prior convictions6 and served more than 5 Chapman v. California (1967) 386 U.S. 18.

6 California Rules of Court, rule 4.421(b)(2)’s circumstance in aggravation requires a defendant’s prior convictions to be “numerous or of increasing seriousness.” (Italics added.) Therefore, the circumstance may be established so long as one of these factors is shown. We recognize our Supreme Court held a determination as to whether a defendant’s prior convictions are of increasing seriousness “requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. As a result, it involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them.” (Wiley, supra, 17 Cal.5th at p. 1082.) By contrast, in the instant case, to find defendant sustained at least 11 prior convictions, one need only look at his criminal record to register this quantity and not engage in any “comparative and qualitative” evaluation. (Id. at p. 1090.)

18. one prior prison term. (See People v. Henley (1999) 72 Cal.App.4th 555, 561 [“A trier of fact is entitled to draw reasonable inferences from certified records offered to prove a defendant suffered a prior conviction and served a prison term.”].) Nothing in the record contradicts these objective facts. Therefore, the failure to secure defendant’s express and personal waiver of his right to a jury trial on the circumstances in aggravation was harmless.

III. Boykin-Tahl admonitions were unwarranted. “[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.” (People v. Mosby (2004) 33 Cal.4th 353, 356 (Mosby), citing In re Yurko (1974) 10 Cal.3d 857, 863; see Mosby, supra, at pp. 359–360 [Boykin- Tahl admonitions].) Boykin-Tahl admonitions are required “for all guilty pleas in criminal trials regardless of whether the defendant’s rights are derived from statute or from the state or federal Constitution.” (People v. Cross (2015) 61 Cal.4th 164, 179 (Cross).) “Proper advisement and waivers of these [Boykin-Tahl] rights in the record establish a defendant’s voluntary and intelligent admission of the prior conviction.” (Mosby, supra, at p. 356.) Case law “has drawn a distinction between, on one hand, ‘a defendant’s admission of evidentiary facts which [does] not admit every element necessary to conviction of an offense or to imposition of punishment on a charged enhancement’ and, on the other, ‘an admission of guilt of a criminal charge or of the truth of an enhancing allegation where nothing more [is] prerequisite to imposition of punishment except conviction of the underlying offense.’ [Citation.] The requirements of Boykin-Tahl … apply to the latter type of admission but not the former. [Citation.]” (Cross, supra, 61 Cal.4th at p. 171.)

19. The key concern is whether “the defendant’s unwarned admission of prior convictions automatically expose[s] him to increased punishment.” (Id. at p. 178.) According to the record, defendant’s attorney filed a motion in limine asking the court—among other things—to prohibit the prosecution from mentioning defendant’s prior criminal acts. At the September 19, 2024 motion hearing, counsel specified he did not want the prosecution to point out defendant was on parole for indecent exposure at the time of the December 7, 2022 incident. The trial court proposed counsel could stipulate defendant had a prior indecent exposure conviction so this information “would not come in during the course of the trial” and the court would only need to instruct the jury on indecent exposure without any reference to the earlier offense. After confirming with the court this approach would ensure jurors “wouldn’t have any idea whether [there] was a prior or not,” counsel so stipulated and the court told the prosecutor to “make sure [his] [witnesses] don’t discuss that” and “[e]xplain to them to stay away from any prior conviction by … defendant.” Five days later, at the September 24, 2024 pretrial hearing, counsel reminded the court he “stipulated to the priors for the purposes of the jurors getting the [indecent exposure] instruction without any knowledge of priors” and the court “remember[ed]” this arrangement. The trial court and counsel agreed to bifurcation of the prior conviction and aggravating circumstance allegations and counsel requested a bench trial thereon. At the September 30, 2024 bench trial, the court reviewed the section 969b packet and the 22-page CLETS printout and found true (among other things) the allegation defendant was previously convicted of indecent exposure on two separate occasions, which—given the jury’s guilty verdict on court 4—“ma[de] [c]ount 4 a felony.” The court added “the jury [did] not hear” about these prior convictions “per the agreement.” Without question, at the time of the September 19, 2024 stipulation, defendant— who was present at the motion hearing—did not receive Boykin-Tahl admonitions. However, these admonitions were unwarranted. In view of the foregoing circumstances, 20. the stipulation was never intended to “waive[] any trial at all” (Cross, supra, 61 Cal.4th at p. 173) on the prior indecent exposure allegations. In fact, the trial court conducted a bifurcated bench trial thereon. (Cf. Mosby, supra, 33 Cal.4th at pp. 357–359 [no trial on prior conviction allegation].) Per the court’s pronouncement, its true findings on the prior indecent exposure allegations—not the jury’s verdict alone—elevated the conviction on count 4 from a misdemeanor to a felony. In other words, the stipulation did not “automatically expose[] [defendant] to increased punishment” (Cross, supra, at p. 178) and the bench trial was “ ‘necessary … to imposition of punishment on a charged enhancement’ ” (id. at p. 171).

IV. Substantial evidence supported the imposition of separate punishment on count 3. “An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).) Moreover, “because [section 654] is intended to ensure that defendant is punished ‘commensurate with his culpability’ [citation], its protection has been extended to cases in which there are several offenses committed during ‘a course of conduct deemed to be indivisible in time.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.) “Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.]” (People v. Corpening (2016) 2 Cal.5th 307, 311.) “At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act.” (Id. at p. 312.) “If so, the defendant may not be punished more than once for that act.” (Id. at p. 311.) “Whether a defendant will be found to have committed a single physical act for purposes of section 654 depends on whether some action the defendant is charged with having taken 21. separately completes the actus reus for each of the relevant criminal offenses.” (Id. at p. 313.) “Only if we conclude that the case involves more than a single act[, ]i.e., a course of conduct[, ]do we then consider whether that course of conduct reflects a single ‘ “intent and objective” ’ or multiple intents and objectives. [Citations.]” (Id. at pp. 311– 312.) “It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible.” (People v. Harrison, supra, 48 Cal.3d at p. 335.) “[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.” (Ibid.) “If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (Ibid.) “The question of whether the acts of which defendant has been convicted constitute an indivisible course of conduct is primarily a factual determination, made by the trial court on the basis of its findings concerning the defendant’s intent and objective in committing the acts.” (People v. Lee (1980) 110 Cal.App.3d 774, 786; accord, People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) “Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; see People v. Blake (1998) 68 Cal.App.4th 509, 512 [“A trial court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.”].) “ ‘We must “view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” [Citation.]’ [Citation.]” (People v. Hutchins, supra, at pp. 1312–1313.)

22. The record—viewed in the light most favorable to the People—shows defendant did not want to return to jail. While handcuffed, he “dropped his weight to the ground” so he would not be placed in the parole agents’ vehicle. While parole agents Melvin G. and Monique D. were in the process of moving defendant into the vehicle, defendant “flailed his legs” and tried to headbutt them. He even kicked Melvin multiple times. This conduct completed the actus reus for each charge of obstructing or resisting an executive officer in the performance of his or her duties (counts 1 and 2). (See People v. Morgan (2026) 19 Cal.5th 132, 139 [“Section 69[, subdivision (a)] makes it a crime to ‘attempt[], by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law’ and to ‘knowingly resist[], by the use of force of violence, the officer, in the performance of his or her duty.’ ”]; see also People v. Martin (2005) 133 Cal.App.4th 776, 781–783 [discussing § 654’s “multiple-victim exception”].) Despite defendant’s efforts, he was eventually placed inside the vehicle. When Monique tried to buckle the seatbelt, defendant spat on her and then bit her twice, first on her left wrist and then on her right wrist (which drew blood). The spitting and the biting completed the actus reus for the battery charge (count 3). (See § 242 [“A battery is any willful and unlawful use of force or violence upon the person of another.”]; People v. Hamilton (2009) 45 Cal.4th 863, 934 [spitting]; People v. Atkins (1975) 53 Cal.App.3d 348, 362 [biting].) While defendant insists the resisting and the battery were “committed concurrently” toward “one objective,” i.e., “to avoid going back to jail,” substantial evidence supported a finding that the battery was so gratuitous as a “means to achieve [that] objective” that it cannot “be termed ‘incidental’ and must be considered to express a different and more sinister goal than mere successful commission of the original crime.” (People v. Nguyen (1988) 204 Cal.App.3d 181, 191; see ibid. [“[Section 654] cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far 23. beyond those reasonably necessary to accomplish the original offense.”].) Hence, we conclude the imposition of separate punishment on count 3 was appropriate.

DISPOSITION The judgment is affirmed.

DETJEN, J. WE CONCUR:

LEVY, Acting P. J.

SANDHU, J.

24.