People v. Johnson

Opinion

TODD, J.

Paul L. Johnson pled guilty to one count of petty theft (Pen. Code, 1 § 484) and admitted a prior petty theft (§ 666). He was sentenced to two years in prison.

Johnson alleges two errors were made justifying withdrawal of his guilty plea. First, the court did not advise him he had a right to try the facts of the principal charge and the prior conviction in separate proceedings. Second, because the court did not inform Johnson of his rights pursuant to Boykin- Tahl 2 solely with respect to the admission of the prior, he was not allowed *870 the opportunity to make a knowing and intelligent waiver of those rights. For the reasons set forth below, we affirm.

Facts

On November 11, 1986, Johnson stole a jacket from a department store in Mission Valley. He was charged with violating section 484, petty theft, with a prior petty theft under section 666. 3

On November 26, 1986, a change of plea hearing was held. At this hearing, Johnson tendered to the court a change of plea form. The form was filled out except for sections 11a and 1 lb 4 —the initial boxes for these two sections have lines drawn through them and were not initialed by Johnson. The trial court did not explain to Johnson his right to bifurcate the proceedings. Further, while the trial court explained to Johnson his rights pursuant to Boykin-Tahl with respect to the plea of guilty, it did not inform him these rights similarly existed with respect to the admission of the prior. 5 Johnson pleaded guilty and admitted the prior.

*871 Discussion

I

The trial court was not required to instruct Johnson about his right to have the principal charge and prior heard separately. Because the prior conviction for petty theft is an element of the principal crime charged and triable at the time the principal crime is tried, Johnson had no right to a bifurcated proceeding.

Relying on the notion that jury knowledge of a prior conviction can cause potential prejudice against which defendants should be accorded protection, People v. Bracamonte (1981) 119 Cal.App.3d 644, 655 [174 Cal.Rptr. 191], held that where a defendant contests the existence of a prior charged for purposes of enhancing his sentence (§ 667.5), he or she is entitled to have that matter heard only after the jury has found the defendant guilty of the principal charge. 6 This bifurcated procedure, however, does not apply to a trial of petty theft with a prior petty theft conviction “where the prior conviction is itself an element of the underlying charge.” (People v. Shippey (1985) 168 Cal.App.3d 879, 890 [214 Cal.Rptr. 553].)

The rule stated in Shippey is supported by the following passage in People v. Valentine (1986) 42 Cal.3d 170, 179-180, footnote 3 [228 Cal.Rptr. 25, 720 P.2d 913]: “Nor is bifurcation mandatory under People v. Bracamonte (1981) 119 Cal.App.3d 644 [174 Cal.Rptr. 191]. Bracamonte declared a rule of procedure that when defendant disputes priors alleged for purposes of *872 sentence enhancement, trial on the priors should be postponed until after conviction on the current charge. As Bracamonte noted, ‘[t]he issue of guilt “and the proof of prior convictions [for enhancement of sentence] are clearly severable.” [Citation.] The latter is unrelated to the substantive issue of guilt and affects only the penalty imposed. [Citation.]’ (P. 650.) Here, by contrast, ex-felon status is directly related to the substantive issue of guilt and is not ‘clearly severable.’ ”

Likewise in Johnson’s case, the status of conviction of a prior petty theft is directly related to the substantive issue of guilt. Thus, under this language of Valentine, bifurcation is not required.

This court said in People v. Sandoval (1987) 188 Cal.App.3d 1428, 1430 [234 Cal.Rptr. 97], “The justification for a bifurcated proceeding relating to prior convictions is to prevent jurors deciding a defendant’s guilt on unrelated charges from being informed of a prior criminal record by exposure to those prior convictions which have no relevance to guilt on present charges.

“The issue was directly addressed in People v. Berutko (1969) 71 Cal.2d 84, 94 [77 Cal.Rptr. 217, 453 P.2d 721], where the Supreme Court held a single waiver of jury trial will be deemed a defendant’s consent to try all issues in the case before the court sitting without a jury, including prior conviction charges.”

Following the Berutko rule, Sandoval held that even where the trial court had granted a bifurcation motion as to the prior felony convictions charged, the defendant’s single jury trial waiver covered both the guilt and prior felony conviction aspects of the trial. (Sandoval, supra, 188 Cal.App.3d at pp. 1430-1431.)

We conclude that since the prior conviction is an element of the offense triable along with the principal offense, a defendant is not entitled to a Bracamonte bifurcation procedure. (People v. Shippey, supra, 168 Cal.App.3d 879, 890.) Accordingly, there was no error in accepting Johnson’s plea of guilty without first advising him of the Bracamonte procedure as to the prior. (See also People v. Lewis (1987) 191 Cal.App.3d 1288, 1301-1302 [237 Cal.Rptr. 64].) Under Sandoval and Berutko, supra, Johnson’s waiver is deemed to run to all issues in the case, including prior conviction charges.

People v. Gallinger (1963) 212 Cal.App.2d 851 [28 Cal.Rptr. 472], on which Johnson relies, is of no assistance to him. Gallinger, since overruled, did not involve a question of bifurcation. Rather, the defendant admitted *873 the prior petty theft and the court’s concern was whether section 1025 7 was violated by informing the jury in a petty theft with a prior petty theft trial that the defendant has admitted the prior conviction of petty theft. Galling-er held “such prosecutions should be conducted as if the former misdemeanor conviction is not an element of the crime of felony.” (Id. at p. 856, italics added.) This is not a holding that the prior petty theft is not an element of the section 666 charge. Rather, it is a rule of procedure accommodating section 1025 where the defendant admits the prior. (See also People v. Sherren (1979) 89 Cal.App.3d 752, 756-759 [152 Cal.Rptr. 828].)

Moreover, to the extent Gallinger could be read as holding the prior petty theft conviction is not an element of the felony charge, it was overruled by People v. Hall (1980) 28 Cal.3d 143, 157 [167 Cal.Rptr. 844, 616 P.2d 826] (held overruled on another point by Proposition 8 in People v. Valentine, supra, 42 Cal. 3d 170, 181-182). Referring to the elements of both a section 12021 offense (ex-felon in possession of a concealable firearm) and a section 666 offense which we consider here, Hall states “the prior is an essential component of the felony.” (Id. at p. 156.)

For purposes of a section 12021 case only, Hall applied the general principle of Gallinger that where the defendant admits the prior, the element of a prior conviction may not be given to the jury. (Ibid.) However, Hall expressly disapproved Gallinger to the extent it was inconsistent with the principles announced in Hall. (Id. at p. 156, fn. 8.) Any reading of Gallinger as saying the prior petty theft is not an element of the section 666 offense is inconsistent with the “essential component” statement in Hall. It is thus clear that Hall overruled Gallinger on this point.

II

Consistent with the conclusion reached in part I, ante, the trial court is not required to separately give the Boykin-Tahl advice with respect to the prior conviction where before a guilty plea to a charge of petty theft with a prior petty theft under sections 484 and 666 the defendant is otherwise properly advised of his rights pursuant to Boykin-Tahl as to the entire charge. (Cf. In re Yurko (1974) 10 Cal.3d 857, 863 [112 Cal.Rptr. 513, 519 *874 P.2d 561], where separate admission of prior conviction, not principle charge, is involved.)

Here, Johnson was properly advised of his rights pursuant to Boykin-Tahl concerning the entire charge under sections 484 and 666. 8 Before entering his plea he also expressed his awareness the maximum penalty for this petty theft with a prior petty theft offense is three years in prison and a $10,000 fine, and if he were sentenced to prison he could be subject to parole for as much as 48 months. The same information was contained in the form entitled “Plea of Guilty/No Contest-Felony” which he said he read and signed. Johnson knew the consequences of his plea. (In re Yurko, supra, 10 Cal.3d 857, 864.)

It is clear this was not a case such as People v. Shippey, supra, 168 Cal.App.3d 879, where the defendant was not advised of his rights pursuant to Boykin-Tahl or the consequences of his admission of the prior petty theft conviction before going to trial on the principal petty theft charge. Shippey held this was error under In re Yurko, supra 10 Cal.3d 857, 864. Shippey could not find the error harmless, concluding it was reasonably probable the defendant might not have admitted the prior petty theft allegation had he been advised the admission would permit imposition of a three-year prison sentence. (Id. at pp. 889, 890.) Also, the record did not show he served time in custody for the prior petty theft conviction. (Id. at p. 890.) More important it was “unlikely that defendant knew or understood the formalities of his sentence with regard to the three prior convictions at the time of his admission of the prior petty theft as prescribed in section 666. Therefore, it is doubtful he knowledgeably admitted the truth of the allegation.” (Id. at p. 890.)

Here, Johnson knew the consequences as well as the formalities of his sentence at the time he entered his plea. In addition, he acknowledged having served time in custody for the prior petty theft conviction. 9 Thus, the *875 concerns expressed in Shippey about a knowledgeable plea are inapplicable to Johnson’s case.

In any event, since Johnson was advised of his rights pursuant to Boykin-Tahl and knew the consequences of his plea of guilty to “petty theft with a prior,” the single offense charged in the felony complaint, no further or separate admonition of his rights pursuant to Boykin-Tahl or of the consequences of his plea is required. Johnson’s guilty plea after the advisement waived his rights with respect to the entire charge of petty theft with a prior theft conviction.

Disposition

Affirmed.

Work, Acting P. J., and Benke, J., concurred.