People v. Towey

Opinion

ARDAIZ, P. J. On August 31, 1999, a jury found appellant Michael Eddie Towey guilty of felony transportation of methamphetamine and the misdemeanors of possession of marijuana, being under the influence of a controlled substance, and giving false identification to a police officer. The trial court found as true enhancement allegations of a prior serious or violent felony conviction for attempted robbery, a prior conviction for possession for sale of a controlled substance, and prior prison terms for both of these convictions. Appellant was sentenced to an 11-year prison term.

Appellant filed a timely appeal claiming (1) the trial court erred by not obtaining appellant’s personal waiver of the use of CALJIC Nos. 2.60 and 2.61, (2) proper instructions about proof of the required mental states were not given, (3) the trial court erred by not giving sua sponte instructions regarding voluntary intoxication, (4) he was not under “detention” for purposes of Penal Code section 148.91 at the time he falsely identified himself to a police officer, (5) the transportation of methamphetamine conviction was not supported by substantial evidence, (6) the transportation of methamphetamine conviction must be reversed because the trial court did not give CALJIC Nos. 3.00 or 3.01 regarding aiding and abetting, (7) the trial court erred by failing to advise appellant of his Boykin-Tahl-Yurko2 rights before his admission of the enhancement allegations, (8) the use of CALJIC No. 17.41.1 infringed upon appellant’s constitutional right to trial by jury, and (9) the use of CALJIC No. 17.42 prohibiting the jury from considering the penalties or punishments was prejudicial error.

We will affirm the convictions, reverse the findings of the enhancement allegations and remand for further proceedings. In the published portion of [883]this opinion we address the issue of whether a defendant must personally waive the giving of CALJIC Nos. 2.60 and 2.61 regarding a defendant not testifying. The facts of this case are unnecessary to the published portion of this opinion.

Facts*

Discussion

I

Personal Consent of Defendant Is Not Required to Forgo the Use of CAUIC Nos. 2.60 and 2.61

Appellant presents the novel question of whether or not the trial court erred when it accepted defense counsel’s waiver of a request for CALJIC Nos. 2.60 (Defendant Not Testifying—No Inference of Guilt May be Drawn) and 2.61 (Defendant May Rely on The State of The Evidencé) without obtaining a personal waiver from appellant. The record reflects the following discussion of defense counsel’s waiver of these two instructions: