Opinion
B163936.
11-12-2003
THE PEOPLE, Plaintiff and Respondent, v. ROBERT M. THOMAS, Defendant and Appellant.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephen A. McEwen and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Robert M. Thomas appeals from the judgment of conviction of felony evading a peace officer, which was entered following a jury trial. He contends: (1) the trial court prejudicially erred in admitting evidence of the property seized from his vehicle at the time of his arrest; (2) he was denied due process as a result of a jury instruction that created a mandatory presumption; and (3) the record does not establish that he voluntarily and intelligently waived his constitutional rights before admitting a prior conviction enhancement allegation. After review, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
At about 9:30 p.m. on April 22, 2002, officers Mark Baca, Cory Leeper and Ruben Moreno of the City of La Verne Police Department were on patrol, each in their own marked patrol cars, when they responded to a dispatch regarding two suspicious males possibly "casing" a shopping center.
Upon arriving at the shopping center, Leeper saw defendant walking in front of the Vons supermarket located there. While Leeper and Moreno were in front of the Vons market, Baca drove around to conduct an area check for the suspects. As he drove across the rear of the market, Baca noticed a black Lexus SUV, but did not see anyone who matched the description of the suspects. When Baca turned around to drive back across the rear of the market, he saw an SUV driving toward him. Defendant was later identified as the driver. Baca radioed Moreno and Leeper, who were in front of the market, as he followed the SUV out of the parking lot. Leeper pulled behind the SUV as it turned right onto Foothill and entered the right-turn only lane. Moreno and Baca followed behind Leeper.
Although the SUV was in the right turn only lane, it did not turn right. Instead, it accelerated through the intersection and continued westbound on Foothill. All three officers activated their lights and sirens. Instead of stopping, the SUV accelerated to between 80 and 90 miles per hour as it approached the next intersection. It slowed to between 70 and 80 miles per hour as it passed through the intersection. The posted speed limit was 45 miles per hour.
The SUV then entered the onramp to the westbound 30 Freeway. Traveling at between 40 and 50 miles per hour up the 360-degree onramp, the SUV began "fishtailing," apparently out of control. After regaining control, the SUV accelerated to between 90 and 100 miles per hour on the freeway.
With Leeper, Baca and Moreno still in pursuit, the SUV transitioned onto the southbound 210 Freeway, traveling between 70 and 80 miles per hour. The posted speed limit was 65 miles per hour. From the far left lane, the SUV crossed over all the lanes to the far right lane, before exiting the 210 Freeway at Arrow Highway. Other cars were forced to brake and slow in reaction to the SUV.
At trial, defendant presented evidence that traffic on the 30 Freeway and the 210 Freeway was "light" that day; he slowed to between 20 and 25 miles while on the Arrow Highway; and all the lights were green while he was on Foothill.
After failing to stop at the red light on Arrow Highway, the SUV made a left onto Maimone, where it failed to stop at a second red light. After two more right turns, the SUV stopped at the end of a cul-de-sac on Dancroft. As defendant began to exit the SUV through the drivers side door, Leeper broadsided the SUV with his patrol car to prevent defendants escape.
The pursuit lasted three minutes and covered 4.2 miles, during which time defendant committed several vehicle code violations. In a search of the SUV, a Jaguar factory stereo, three unopened bottles of champagne, and five cartons of cigarettes were found. The street value of these items was approximately $1,700.
Donald Renfro was driving on the 30 Freeway towards the 210 Freeway when he observed the pursuit in progress and saw something ejected from the SUV. A little while later, he saw a second item thrown out of the SUV. Both items presented a hazard to oncoming traffic. Renfro pulled over and retrieved the first item: a bolt cutter, which Renfro eventually turned over to the police. Leeper also saw two items being thrown from the SUV. When he returned to the area after defendant had been apprehended, Leeper recovered about 20 cartons of cigarettes.
Defendant was charged by information with evading an officer while driving with a willful and wanton disregard for the safety of others, a felony (Veh. Code, § 2800.2, subd. (a) (section 2800.2)) (count1) and giving false information to an officer (Pen. Code, § 148.0, subd. (a)) (count 2). Prior conviction enhancements were also alleged. When defendants first jury trial ended in a mistrial, the People dismissed count 2 and retried count 1 to a second jury. After the second jury convicted defendant as charged, defendant admitted the alleged priors. He was sentenced to a total of five years in prison.
Defendant filed a timely notice of appeal.
DISCUSSION
Evidence of Items Found in Defendants Car Was Admissible
Defendant contends the trial court prejudicially erred in allowing the prosecution to introduce into evidence the champagne, cigarette cartons and stereo the police found when they searched the SUV. Defendant argues it was undisputed that he was fleeing from the police; the only disputed issue was whether he drove in a manner that showed a wanton or willful disregard for public safety; the challenged evidence was not relevant to this issue and, furthermore, it was inadmissible evidence of an uncharged crime (possession of stolen property). We disagree.
In pertinent part, Evidence Code section 1101 provides: "(a) [With certain exceptions,] evidence of a persons character or a trait of his or her character (whether in the form of . . . evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [& para;] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime . . . when relevant to prove some fact (such as motive . . . ) other than his or her disposition to commit such an act." (See also People v. Scheer (1998) 68 Cal.App.4th 1009, 1017 (Scheer).)
Although not an element of the offense which must be proved, motive "`. . . is material as evidence tending to refute or support the presumption of innocence. [Citation.]" (Scheer, supra, 68 Cal.App.4th at p. 1017.) "A `motive is defined as a `[c]ause or reason that moves the will and induces the action[,] `[a]n inducement, or that which leads or tempts the mind to indulge a criminal act. (Blacks Law Dict. (rev. 4th ed. 1968) p. 1164, col. 2.) Motive is an intermediate fact which may be probative of such ultimate issues as intent [citations], . . . or commission of the criminal act itself [citation]." (Scheer, supra, 68 Cal.App.4th at pp. 1017-1018.) The intermediate fact of motive may be established by evidence of prior dissimilar crimes "for the evident reason that the motive for the charged crime arises simply from the commission of the prior offense. [Citation.] The existence of a motive requires a nexus between the prior crime and the current one, but such linkage is not dependent on comparison and weighing of the similar and dissimilar characteristics of the past and present crimes. [Citations.]" (Id. at p. 1018.) Moreover, to be admissible, evidence of the uncharged crimes must not be outweighed by the probability that its admission would create a serious danger of prejudice, of confusing the issues, or misleading the jury. (Ibid.) We review the trial courts determination of these issues for abuse of discretion. (Ibid.) Finally, "the erroneous admission of prior misconduct evidence does not compel reversal unless a result more favorable to the defendant would have been reasonably probable if such evidence were excluded. [Citations.]" (Ibid.; Evid. Code, § 353.)
Here, prior to trial, defendant moved to exclude evidence of the cigarette cartons, whiskey bottles, and stereo found by police when they searched the SUV after defendant was arrested, as well as the cigarette cartons and bolt cutters tossed out of the car, on the ground that such evidence would be more prejudicial than probative. Defendant argued that, even assuming the evidence tended to prove his intent to evade the officers, such intent could be inferred from the videotape of the pursuit, making the challenged evidence cumulative. The prosecutor countered that evidence of the items that were tossed out of the SUV and into the path of an oncoming car was relevant to prove the wanton, willful disregard for public safety element of the charged offense; moreover, that the cigarette cartons found on the highway were similar to the cigarette cartons found in the SUV tended to establish that defendant threw these items out of the car, as opposed to these items having been deposited in the roadway by some other person, at some other time. Moreover, the prosecutor argued, evidence of the contents of the SUV was relevant to prove defendant had a motive to flee from the police. The trial court denied the motion, reasoning that the challenged evidence was probative of motive and would not take long to present. We agree.
Defendant moved to exclude the evidence pursuant to Evidence Code section 352, but did not specifically argue it was inadmissible pursuant to Evidence Code section 1101, subdivision (a). On appeal, the People argue that defendant has thus waived this claim. We conclude the objection was sufficient to preserve the issue for appeal.
That defendant conceded he was fleeing from the police but disputed that he was driving in a manner that showed willful and wanton disregard for the safety of persons or property, does not make the challenged evidence irrelevant. On the contrary, evidence that, while he was fleeing from police, defendant was in possession of stolen goods with an estimated value of $1,700 tends to establish a motive for defendant to drive even more recklessly than he otherwise might have, thus meeting the higher standard of section 2800.2. This is so because with stolen property (1) the stakes were higher than they would have been, for example, if defendant only had expired registration tags, and/or (2) defendant would have benefited from putting greater distance from the pursuing police officers to allow him an opportunity to discard stolen property, something defendant tried without success. The existence of such a motive is probative of the commission of the criminal act itself. (Scheer, supra, 68 Cal.App.4th at p. 1018.) Accordingly, the evidence was admissible.
There Was No Instructional Error
Defendant contends he was denied due process because the trial court did not instruct the jury that, in order to find the commission of three individual Vehicle Code violations to constitute a violation of Vehicle Code section 2800.2, subdivision (a), it must find each individual Vehicle Code violation was committed with willful and wanton disregard for the safety of others. As we understand defendants argument, it is that, as given, the instructions created a mandatory presumption that, if defendant violated the three identified Vehicle Code sections, he was driving with a willful or wanton disregard for the safety of persons or property, and that such an evidentiary presumption improperly relieved the prosecution of proving beyond a reasonable doubt the willful or wanton disregard element of the charged offense. Defendant is incorrect.
Vehicle Code section 2800.2, subdivision (a) provides: "If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle . . ." is guilty of a felony. Subdivision (b) of Vehicle Code section 2800.2 provides: "For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs." (Italics added.) Accordingly, the jury was instructed: "Every person who flees or attempts to elude a pursuing peace officer in violation of Vehicle Code section 2800.1, subdivision (a) and drives the pursued vehicle in a willful or wanton disregard for the safety of persons or property is guilty of a violation of [Vehicle Code] Section 2800.2, subdivision (a), a felony. [& para;] A willful or wanton disregard for the safety of persons or property also includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time the person driving violates three or more Vehicle Code sections, such as Vehicle Code section 22350, Unsafe Speed; Vehicle Code section 21658, Unsafe Lane Change; and Vehicle Code section 21453, Failure to Stop at a Circular Red Light, or damage to property occurs." The trial court also instructed the jury on the elements of a violation of Vehicle Code sections 22350, 21658, and 21453.
The flaw in defendants argument is that it focuses on due process considerations of mandatory presumptions in the context of a criminal action. A mandatory presumption is an evidentiary device. Subdivision (b) of Vehicle Code section 2800.2, however, does not create an evidentiary presumption. Rather, subdivision (b) establishes a rule of substantive law, namely, that violation of any three of various specified Vehicle Code sections while fleeing from a peace officer is one of three ways in which the crime of felony evading in violation of Vehicle Code section 2800.2, subdivision (a) may be committed. These three ways are: (1) driving generally with a willful and wanton disregard for the safety of persons or property; (2) violating three or more specified Vehicle Code sections; or (3) damaging property.
According to Evidence Code section 600, subdivision (a): "A presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action. A presumption is not evidence." "A statute providing that a fact or group of facts is prima facie evidence of another fact establishes a rebuttable presumption." (Evid. Code, § 602.) "Every rebuttable presumption is either (a) a presumption affecting the burden of producing evidence or (b) a presumption affecting the burden of proof." (Evid. Code, § 601.) "The effect of a presumption affecting the burden of proof is to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact." (Evid. Code, § 606.) In a criminal action, a rebuttable presumption affecting the burden of proof of any element of the offense "operates only if the facts that give rise to the presumption have been found or otherwise established beyond a reasonable doubt . . . ." (Evid. Code, § 607.)
In this respect, Vehicle Code section 2800.2, subdivision (b) is similar to other Penal Code sections that describe various ways of committing the same crime. For example, Penal Code section 484j provides: "Any person who publishes the number or code of an existing, canceled, revoked, expired or nonexistent access card, personal identification number, computer password, access code, debit card number, bank account number, or the numbering or coding which is employed in the issuance of access cards with the intent that it be used . . . to avoid the payment of any lawful charge, or with intent to defraud or aid another in defrauding, is guilty of a misdemeanor. . . ." That section further provides: "As used in this section, `publishes means the communication of information to any one or more persons . . . in person or by telephone, radio or television, or on a computer network or computer bulletin board, or in a writing of any kind, including without limitation a letter or memorandum, circular or handbill, newspaper or magazine article, or book." The second sentence of Penal Code section 484j does not create a mandatory presumption that communication by one of the stated means constitutes "publishing." Rather, that second sentence defines the conduct that constitutes publishing for purposes of the statute.
Just like Penal Code section 484j, subdivision (b) of Vehicle Code section 2800.2 defines the conduct that constitutes violation of subdivision (a) of that section. It does not create a presumption. Accordingly, contrary to defendants assertion, it was not necessary to prove that each Vehicle Code violation was committed with a wanton and willful disregard for the safety of others, as it is the fact of three violations occurring during a police pursuit which raises the conduct of fleeing from a police officer to a felony, irrespective of whether it can be demonstrated that each individual violation standing alone was the product of a wanton and willful disregard for safety.
Defendants reliance on People v. Roder (1983) 33 Cal.3d 491, 498 (Roder), for a contrary result is misplaced. This is because Roder and its progeny, including In re Christopher K. (2001) 91 Cal.App.4th 853 (Christopher K.); People v. Daniels (1993) 18 Cal.App.4th 1046 (Daniels); People v. Wandick (1991) 227 Cal.App.3d 918, 923 (Wandick), as well as its antecedents, such as People v. Henderson (1980) 109 Cal.App.3d 59, 65 (Henderson), are inapposite. In each of those cases, an evidentiary presumption, not a substantive rule of law was at issue. For example, in Christopher K., Wandick, and Henderson, the courts each held that Penal Code section 12091 created an unconstitutional mandatory presumption because possession of a firearm upon which the identifying marks have been obliterated, standing alone, is not sufficient to prove beyond a reasonable doubt that the possessor obliterated the identifying marks. (Christopher K., supra, at p. 856; Henderson, supra, at p. 62; Wandick, supra, at p. 925.)
Penal Code section 12090 makes it a felony to change, alter, remove or obliterate the maker, model, manufacturers number or other mark of identification on any firearm without written permission from the Department of Justice. Penal Code section 12091 provides: "Possession of any pistol or revolver upon which the name of the maker, model, manufacturers number or other mark of identification has been changed, altered, removed, or obliterated, shall be presumptive evidence that the possessor changed, altered, removed, or obliterated the same." (Italics added.)
Similarly in Carella v. California (1989) 491 U.S. 263, the United States Supreme Court found the defendant was denied due process because jury instructions based on Vehicle Code section 10855 and Penal Code section 484, subdivision (b)(2) "foreclosed independent jury consideration of whether the facts proved established certain elements of the [charged] offense." And in Roder, supra, 33 Cal.3d 491, our Supreme Court held that jury instructions regarding former Penal Code section 496 created an unconstitutional mandatory presumption that a person whose principal business is dealing in used or second hand merchandise is guilty of knowingly receiving stolen property if that person fails to make a reasonable inquiry to ascertain whether the person from whom such property was received had the legal right to sell or deliver it. (Roder, supra, 33 Cal.3d at pp. 505-506; see alsoDaniels, supra, 18 Cal.App.4th at p. 1052 [jury instruction stating that moving the victim 500 feet satisfied the asportation element of kidnapping as a matter of law created unconstitutional mandatory presumption].)
"Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted." (Pen. Code, § 503.) Vehicle Code section 10855 provides: "Whenever any person who has leased or rented a vehicle willfully and intentionally fails to return the vehicle to its owner within five days after the lease or rental agreement has expired, that person shall be presumed to have embezzled the vehicle." (Italics added.) Penal Code section 484, subdivision (b)(2) provides: "Except as provided in Section 10855 of the Vehicle Code, where a person has leased or rented the personal property of another person pursuant to a written contract, and where the property has a value no greater than one thousand dollars ($ 1,000), or where the property is a commonly used household item, intent to commit theft by fraud shall be rebuttably presumed if the person fails to return the personal property to its owner within 20 days after the owner has made written demand by certified or registered mail following the expiration of the lease agreement for return of the property so leased . . . ." (Italics added.)
The defendant was charged with unlawful taking of a vehicle (Veh. Code, § 10851), but convicted of grand theft, presumably in violation of Penal Code section 487, subdivision (d)(1).)
At the relevant time, Penal Code section 496 provided in pertinent part as follows: "2. Every person whose principal business is dealing in or collecting used or secondhand merchandise . . . who buys or receives any property which has been stolen . . . under such circumstances as should cause such person . . . to make reasonable inquiry to ascertain that the person from whom such property was bought or received had the legal right to sell or deliver it, without making such reasonable inquiry, shall be presumed to have bought or received such property knowing it to have been so stolen or obtained. This presumption may, however, be rebutted by proof." (Italics added.) Subdivision (3) of former Penal Code section 496 put upon the defendant the burden of showing that he made such reasonable inquiry.
The court in Roder did not find section 496 itself to be unconstitutional, observing: "[T]he transformation of the statutory rebuttable presumption into a permissible inference appears quite reasonable and feasible. . . . [A] carefully drafted instruction which places the inference in context and does no more than inform the jury that upon the prosecutions proof of the four basic facts it is permitted — but not required — to infer guilty knowledge is fairly innocuous . . . ." (Id. at pp. 505-506.)
Each of these cases is inapposite, because each addresses the constitutionality of a mandatory evidentiary presumption. As we have already explained, Vehicle Code section 2800.2, subdivision (b) creates a rule of substantive law, defining the specific conduct that constitutes a violation of subdivision (a) of that statute. It does not create an evidentiary presumption.
Defendants Waiver of his Constitutional Rights
Also without merit is defendants contention that the conviction on the Penal Code section 667.5 enhancement must be reversed because the trial court failed to advise him of his right against self-incrimination.
Defendant also contends reversal is required because the trial court did not advise him of the consequences of his plea. Since such an advisement is a declared rule of criminal procedure and not constitutionally mandated, the error is waived if not raised at or before sentencing. (People v. Wrice (1995) 38 Cal.App.4th 767, 770-771.) Here, defendant failed to timely raise the issue. Thus, he has waived it.
"In In re Yurko (1974) 10 Cal.3d 857, 861-865 . . ., our Supreme Court held trial courts are constitutionally required to expressly advise defendants who intend to admit prior convictions that they have the right to a jury trial on the prior, the right to confront and cross-examine witnesses, and the right against self-incrimination (Boykin/Tahl rights). (Boykin v. Alabama (1969) 395 U.S. 238 . . .; In re Tahl (1969) 1 Cal.3d 122 . . . .) The Supreme Court later held that `Yurko error involving Boykin/Tahl admonitions should be reviewed under the test used to determine the validity of guilty pleas under the federal Constitution. Under that test, a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances. (People v. Howard (1992) 1 Cal.4th 1132, 1175 . . . .)" (People v. Campbell (1999) 76 Cal.App.4th 305, 309-310 (Campbell).) While a voluntary and intelligent waiver cannot be inferred solely from the defendants experience and familiarity with the criminal justice system (id. at p. 310), such experience and familiarity may be considered as a part of the totality of the circumstances. (Parke v. Raley (1992) 506 U.S. 20, 37.)
In Campbell, the trial court failed to advise the defendant of any of the Boykin-Tahl rights he would be waiving if he admitted the prior convictions. The court of appeal reversed on that issue.
In People v. Howard (1992) 1 Cal.4th 1132 (Howard), although the trial court advised the defendant of his right to a jury trial and to confront the witnesses against him, it failed to advise him of his privilege against self-incrimination before taking his admission that he had served a prison term for burglary. Based upon that admission, the trial court enhanced the defendants sentence by one year pursuant to Penal Code section 667.5. (Id. at p. 1174.) Our Supreme Court affirmed, observing: "Boykin does not require specific articulation of each of the three rights waived by the guilty plea, as long as it is clear from the record that the plea was voluntary and intelligent . . . . [Citation.]" (Id. at p. 1178.) The court in Howard found the advisements of the right to a jury trial and to confront witnesses were sufficient to affirmatively demonstrate that the defendant "knew he had a right not to admit the prior conviction and, thus, not to incriminate himself," and that it was not necessary "`to go farther and attach to such knowledge the talismanic phrase "right not to incriminate himself." [Citations.]" (Id. at p. 1180.) The Supreme Court recently approved Howards "totality of the circumstances" standard in People v. Collins (2001) 26 Cal.4th 297, 310.
The facts of this case are similar. Here, at a hearing on October 28, 2002, defendant indicated that he wished to admit the three prior convictions alleged as enhancements pursuant to Penal Code section 667.5. The trial court expressly advised defendant that he had a constitutional right to a jury trial and to confront witnesses. After defendant waived those rights, the trial court took defendants admission without advising him of his right against self-incrimination or the consequences of his plea. Defense counsel joined in the waivers and admissions. The matter was thereafter set for sentencing. On November 22, 2002, defendant waived arraignment for judgment and sentence. After agreeing there was no legal cause why sentence should not be pronounced, defense counsel urged the trial court to strike the prior conviction enhancements because they did not involve violent crimes. The trial court declined to do so and sentenced defendant to a total of three years on the enhancement, comprised of one year for each prior conviction.
Here, as in Howard, defendant was advised of his right to a trial and to confront witnesses. Under the Supreme Courts reasoning in Howard, this record affirmatively demonstrates that defendant knew he had a right not to admit the prior conviction, and thus not to incriminate himself.
Although we agree with Campbell that defendants mere familiarity with the legal system is no substitute for the advisement of Yurko rights, here defendant had just completed a trial in which he did not testify, a manifest indication he knew he did not have to incriminate himself. This fact, coupled with the express waiver of the rights to a jury trial and to confront witnesses, brings this case within Howards ambit.
Defendants reliance on People v. Van Buren (2001) 93 Cal.App.4th 875, 884 (Van Buren); People v. Garcia (1996) 45 Cal.App.4th 1242, 1246-1248 (Garcia); and People v. Torres (1996) 43 Cal.App.4th 1073, 1079-1082 (Torres), for a contrary result is misplaced. In Van Buren, the defendant was not advised of his right against self-incrimination, right to a jury trial, right to confront witnesses, the consequences of a guilty plea or the consequences of an admission of a prior conviction. (Van Buren, supra, at pp. 883-884.) In Garcia, the defendant was not advised of his right to confront witnesses or his privilege against self-incrimination. (Garcia, supra, at pp. 1246-1247.) In Torres, likewise, the trial court failed to advise the defendant of both his right of against self-incrimination and his right to confront witnesses. (Torres, supra, at p. 1079.) Thus, in each of those cases, the record did not affirmatively show that the pleas were voluntary and intelligent under the totality of the circumstances. Here, by contrast, as in Howard, the trial court failed to advise the defendant of only his right against self-incrimination. Inasmuch as defendant was advised of his right to confront witnesses and right to a jury trial, and expressly waived those rights, the record affirmatively shows that defendants plea was voluntary and intelligent under the totality of the circumstances.
This is not to say that a plea is necessarily valid if the defendant is advised of two out of three of the Boykin/Tahl rights. It is not. Trial courts are still required to expressly advise defendants on the record of all the Boykin/Tahl rights. (Howard, supra, 1 Cal.4th at p. 1175.) We merely apply the now well established rule that, while the failure to do so constitutes error, such error does not necessarily require the plea to be set aside. (Id. at pp. 1174-1175.) Rather, the test is whether the record affirmatively shows that the plea was voluntary and intelligent under the totality of the circumstances. (Id. at pp. 1177-1178.) We cannot emphasize enough that this does not absolve trial courts of their continuing duty to adequately explain and obtain express waivers of the rights involved. (Id. at p. 1179.)
DISPOSITION
The judgment of conviction is affirmed.
We concur: COOPER, P.J. and BOLAND, J.