PEOPLE v. MANZANO

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Thomas Paul MANZANO, Defendant and Appellant.

No. D012546.

Decided: August 23, 1991

Janyce Keiko Imata Blair, under appointment by the Court of Appeal, Gardena, for defendant and appellant. Daniel E. Lungren, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Asst. Atty. Gen., Louis R. Hanoian and Pat Zaharopoulos, Deputy Attys. Gen., for plaintiff and respondent.

Thomas Paul Manzano was convicted by a jury of robbery.  (Pen.Code,2 § 211.)   The jury also found he used a deadly weapon in the commission of the offense (§ 12022, subd. (b)) and intentionally inflicted great bodily injury upon the victim (§ 12022.7).   It also convicted him of petit theft with a prior theft conviction (§§ 484, 666).3  After the jury verdict Manzano admitted the allegation of commission of three prior serious felonies (§ 667, subd. (a)).  The court sentenced him to an aggregate of 24 years in prison, consisting of 9 years for the robbery conviction and its enhancements and an additional 15 years for the three prior felony convictions.   It imposed and stayed a three-year sentence for the petit theft with a prior.

Manzano's contentions on appeal are (1) insufficient evidence to support the robbery conviction, (2) improper sentencing on the petit theft charge since it was an included offense of the robbery, and (3) error in accepting his admissions of the three prior felony convictions without an adequate advisement or waiver of constitutional rights.

We deal summarily with the first two contentions, concluding the evidence was sufficient for the conviction, but that Manzano is correct in his contention that a separate sentence (even though stayed) should not have been imposed for the petit theft conviction.   We then proceed with greater deliberation with the issue of error in advisement preceding the felony conviction admissions, concluding after some difficulty that this portion of the judgment should be affirmed.

I–II *

III

ALLEGEDLY DEFECTIVE ADVISEMENT OF CONSTITUTIONAL RIGHTS

In addition to the principal counts, Manzano was charged with the commission of three prior serious felonies.   The trial of the principal charges was bifurcated from the determination of the validity of the three prior felony convictions.   After a jury verdict of guilty, Manzano waived further trial and admitted the conviction of the offenses.   Before accepting the admissions the court was obliged to, and did, advise Manzano of the constitutional rights he was waiving by his admissions.   These “Boykin–Tahl ” admonishments (Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274;  In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449) require that the court advise the defendant on the record, and receive specific waivers from the defendant, of three basic constitutional trial rights:  (1) the right to a jury trial, (2) the right to assert the privilege against self-incrimination and to require proof of the case without the assistance of the defendant, and (3) the right to confront and cross-examine witnesses.   Applicable specifically in Boykin and Tahl to the taking of guilty pleas, the principle was extended in In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561 to advisements required before the taking of admissions of prior convictions.  (We refer hereafter to the general concept of failure to give complete advisements before the taking of admissions of priors as “Yurko error.”)

The transcript of the court's interrogation of the defendant at the time he waived his constitutional rights contains no specific reference to Manzano's waiver of his privilege against self-incrimination.   While the court made ample explanation of the waiver of jury trial and the right to confront and cross-examine witnesses, specific reference to existence of and waiver of the privilege against self-incrimination was simply omitted.4  Manzano urges that this defect requires reversal of the portions of the judgment and sentence based upon the admissions, reminding that the Boykin–Tahl–Yurko waivers must be expressed on the record and may not be implied from a defendant's conduct, and that failure of recorded and expressed waiver as to the three fundamental rights requires automatic reversal, not subject to a harmless error inquiry.

 We reluctantly agree that the omission of advisement of any of the three fundamental rights, upon the taking of an admission of conviction of prior felonies, is a defect requiring reversal and rehearing.   Our review of precedent convinces, however, that the entire record must be consulted to determine whether a defendant has received adequate advisements, and that it is inappropriate to limit review to the dialogue between court and defendant which takes place just prior to his admissions.   When the entire record is reviewed in this case, we are satisfied that Manzano was fully aware of the rights he was waiving.   In this regard we emphasize that we are not making inferences of knowledge from conduct of the defendant, which is precluded by In re Tahl, supra, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.   We are simply incorporating for our consideration the entire record, which amply demonstrates complete advisement and knowledge.

1. Existing Precedent Precludes the Application of Harmless Error Doctrine to Yurko Error.

Citing People v. Guzman (1988) 45 Cal.3d 915, 968, 248 Cal.Rptr. 467, 755 P.2d 917, the Attorney General contends that “Any error in the [advisement] is harmless where there is no reasonable probability that the defendant would have denied the priors or they would not have been found true․”  It appears from the record in this case that at the time the defendant entered his waivers the district attorney had marked, and was prepared to enter in evidence, certified copies of conviction records.   Neither at the time of trial nor presently on appeal has the defendant indicated any substantive basis for a contention that the convictions did not occur or that he was not the person convicted.   In sum, there appears to be no real issue as to the actual, substantive, validity of the charged priors.

In a concurring opinion rendered in a similar case in the First District of this court, Justice King commented on the absurdity of rehearings when no substantive question was to be presented, saying:

“The costs of transporting [the defendant] from the state prison to [the county of original trial] for trial, paying a lawyer to represent him, paying the costs of a jury trial and, undoubtedly, another appeal, constitute a gross waste of taxpayer dollars, since [the defendant] makes no claim he could prevail upon a trial of the validity of his prior convictions.   In addition to the needless financial cost, a heavily overburdened district attorney and trial court will waste time on a frivolous claim which could be better spent reducing the backlog of serious criminal cases.”  (People v. Ray (1990) 220 Cal.App.3d 943, 951, 269 Cal.Rptr. 682).

We find, however, a long line of authority requiring reversal and rehearing for Yurko error, and not admitting an investigation into lack of prejudice.  Boykin and Tahl, each having to do with confessions of guilt, rather obviously admit of no inquiry into the matter of prejudice.  Yurko established the Boykin–Tahl requirement for the taking of admissions of prior convictions, and added the requirement that the defendant be advised of the penal consequences of his admission.  (In re Yurko, supra, 10 Cal.3d at p. 864, 112 Cal.Rptr. 513, 519 P.2d 561.)   This further requirement was identified, however, as a rule of court rather than constitutionally mandated matter.   As to failure to adhere to the rule of court (advisement of penal consequences) the court stated that the error would require setting aside the admission “if prejudice appears.”  (Ibid.)

The distinction between the three constitutionally required admonitions and the admonition respecting penal consequences imposed by rule of court was further explained in In re Ronald E. (1977) 19 Cal.3d 315, 321, 137 Cal.Rptr. 781, 562 P.2d 684:  “an uninformed waiver based on the failure of the court to advise an accused of the consequences of an admission constitutes error which requires that the admission be set aside only if the error is prejudicial to the accused” (emphasis added), and this is “[u]nlike an uninformed waiver of the specified constitutional rights which renders a plea or admission involuntary and requires that it be set aside, ․”  (Ibid.)

The Supreme Court's position that failure to advise as to the three constitutional waivers is error per se, not amenable to harmless error review, was reinforced in two subsequent cases dealing with related issues.  In re Ibarra (1983) 34 Cal.3d 277, 193 Cal.Rptr. 538, 666 P.2d 980 addressed the question of use of signed waiver forms for satisfaction of advisement requirements.   Commenting in a footnote on the effect of Boykin–Tahl error, the court distinguished habeas corpus review from review on direct appeal, stating that when error is established on direct appeal the defendant is “entitled to automatic reversal.”  (Id. 34 Cal.3d at p. 283, fn. 1, 193 Cal.Rptr. 538, 666 P.2d 980.)   In the second case, People v. Wright (1987) 43 Cal.3d 487, 233 Cal.Rptr. 69, 729 P.2d 260, the court wrestled with the issue whether “Bunnell ” error [requirement of advisements and waivers before submitting the case on the basis of the preliminary hearing transcript] was error of constitutional dimension.   Referring to Yurko and In re Ronald, the court restated the proposition that failure to give advisements which were not constitutionally mandated (i.e., Bunnell advisements) would not require reversal unless prejudice could be shown, but confirmed the earlier statement in In re Ronald that error in constitutional advisements could not be subject to harmless error analysis.  (People v. Wright, supra, 43 Cal.3d at p. 495, 233 Cal.Rptr. 69, 729 P.2d 260.)

Most of the Court of Appeal decisions which have reviewed errors in advisements in the taking of felony admissions have assumed, without discussion, that failure to cover any one of the three elemental rights to be waived would result in automatic reversal.5  One of the most recent of these cases, People v. Balderrama (1990) 221 Cal.App.3d 282, 270 Cal.Rptr. 432, is from our own court, reflecting the decision of a unanimous panel.   Finding Yurko error, the court stated simply “[w]hen an accused has not been properly advised of his constitutional rights before admitting a prior conviction, the proper remedy is to remand the matter to the trial court for a limited hearing on the truth of the prior.”  (Id. at p. 284, 270 Cal.Rptr. 432).

This weight of Court of Appeal authority is opposed by at least one opinion to the contrary, People v. Prado (1982) 130 Cal.App.3d 669, 182 Cal.Rptr. 129.6  In that case the record did not disclose the giving of any advisements prior to the taking of the defendant's admissions of prior convictions.   The Court of Appeal acknowledged the error, but refused reversal on harmless error grounds.   It stated:

“[R]eversal is not required where it is not reasonably probable that, if advice had been given, appellant would have denied the prior convictions and they would have been found not to have occurred.  (Cf. In re Ronald E. (1977) 19 Cal.3d 315, 325 [137 Cal.Rptr. 781, 562 P.2d 684].)   Appellant has not challenged the validity of the prior convictions and does not assert that he would have denied them if he had been properly advised.   We are mindful that in People v. Knighten (1980) 105 Cal.App.3d 128 [164 Cal.Rptr. 96], this court under similar circumstances remanded the cause to the trial court to take further proceedings to determine the validity of the prior convictions.   We are persuaded by People v. English, supra, 116 Cal.App.3d 361, 368 [172 Cal.Rptr. 122], that such remand is unnecessary where appellant has failed to show that if given proper warnings he would have denied the priors.   In that situation the error is harmless.”  (People v. Prado, supra, 130 Cal.App.3d at pp. 675–676, 182 Cal.Rptr. 129.)

Despite this array of precedent, with Prado as the one real exception, we have been urged to discern a change in Supreme Court approach.   We are pointed to two Supreme Court cases decided in 1988 which, it is argued, signal a relaxation of the rule of per se reversal for Yurko error.   The first of these is People v. Guzman, supra, 45 Cal.3d 915, 248 Cal.Rptr. 467, 755 P.2d 917.   The Yurko error in the Guzman trial was alleged to have been committed in the advisement of right to jury trial.   Instead of referencing the right of trial by jury, the trial court had stated that the defendant had a right to a “hearing” on the issue.   The Supreme Court found this to be error, but classified it as harmless error not warranting reversal.   It stated:

“The People implicitly concede the error, but argue it is harmless on these facts.   We agree.   On this record there is no reasonable probability that, if the term ‘jury trial’ instead of ‘hearing’ had been used, defendant (i) would have denied the priors and (ii) they would not have been found true.   There is no dispute that defendant had suffered the priors and served prison terms therefor.   We therefore conclude the error was harmless.  (People v. Prado (1982) 130 Cal.App.3d 669, 675–676 [182 Cal.Rptr. 129];  People v. English (1981) 116 Cal.App.3d 361, 369–370 [172 Cal.Rptr. 122].”  (People v. Guzman, supra, 45 Cal.3d at p. 968, 248 Cal.Rptr. 467, 755 P.2d 917.)

We note from the above quote that the court (1) recognized the existence of clear constitutional Yurko error, (2) applied the harmless error test to it, and (3) in so doing expressly approved People v. Prado, the one case which most clearly had enunciated the applicability of harmless error doctrines to Yurko error.   The argument could well be made that this signaled a change in Supreme Court approach to reversal per se for Yurko error.   A literal reading of the above passage supports that contention.   We would be disposed to accept this interpretation were it not for the fact that the question has been fully examined and resolved otherwise by the First District Court of Appeal, in a lengthy and well-reasoned opinion.   (People v. Ray, supra, 220 Cal.App.3d 943, 269 Cal.Rptr. 682.)

Justice Low, writing for a unanimous panel, concluded that the Supreme Court would not overrule its previous decisions in Tahl, Yurko, Ronald E., Ibarra and Wright “without any discussion of the point or any indication it had in mind what those precedents said as to the standard of prejudice.”   Rather, the Court of Appeal determined, “[w]e read Guzman as holding only that harmless error analysis may be used to assess the effect of advisements which are overly vague.”  (220 Cal.App.3d at p. 948, 269 Cal.Rptr. 682.)

 We recognize that opinions from other districts of the Court of Appeal are not binding on our court.  (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, §§ 772, 773, pp. 740–743.)   Where, however, the prior opinion reaches the identical issue, consists of a detailed and competent review of the law, and constitutes a well-reasoned and supportable decision, deference in the interests of comity and uniformity would appear appropriate.   The opinion in People v. Ray, supra, assuredly measures up to these criteria, and we therefore accept its construction of the language in People v. Guzman, supra.

The other 1988 Supreme Court case requiring examination is People v. Karis (1988) 46 Cal.3d 612, 250 Cal.Rptr. 659, 758 P.2d 1189.   There the court made a general statement about Yurko error as follows:

“Prior to accepting a defendant's admission that he has suffered a prior conviction, when that prior is charged for the purpose of enhancing a term imposed under the Determinate Sentencing Act, the court must advise the defendant of, and obtain on the record, express waivers by the defendant of the constitutional rights he waives by his admission.   The court must also advise the defendant of the impact the finding of prior conviction will have on his term.   If the advice and waivers do not appear on the record the finding must be set aside on appeal if prejudice appears.”  (Id. at p. 650, 250 Cal.Rptr. 659, 758 P.2d 1189.)

We note that the court characterized the constitutional rights as “waivers,” and the advisement concerning penal consequences as “advice.”   It then stated that failure of the record to show both “advice” and “waivers” would be subject to harmless error analysis.   However, as was the Ray court with respect to the Guzman language, we are unable to attribute to this general language an intent to overrule Tahl, Yurko, Ronald E. and Wright.   Not only is the language general and perhaps subject to other interpretation, but the error made in Karis was failure to advise as to penal consequences—the non-constitutional waiver which always has been subject to harmless error test.   We do not believe, therefore, that Karis can be relied upon as indicative of a change in the Yurko precedent, which requires reversal per se for Yurko constitutional error in advisement.

2. The Record as a Whole Reveals Sufficient Advisements to Satisfy Yurko Requirements.

Admittedly, if we confine ourselves to the colloquy between the judge and the defendant just preceding his entry on the record of his admissions of felony convictions, we must conclude the advisement was defective.   However, we are convinced that we need not so restrict our investigation.   While the precedents previously cited emphasize that the revelation of advisements and waivers must be on the record, and not implied, we may look to the entire record to ascertain advisement by the court and understanding by the defendant of the rights he is waiving.

Our Supreme Court in In re Tahl, supra, 1 Cal.3d at p. 127, 81 Cal.Rptr. 577, 460 P.2d 449, first reviewed the general law of the several states on the subject, finding no requirement of any specific language of waiver or advisement.   While an affirmative showing on the record might be desirable, the court could look “to the overall record and the surrounding circumstances to ascertain the voluntary nature of the plea.”  (Ibid.)  Stating the law post–Boykin, however, the Tahl court tightened what it had conceived as prior law.  “[T]he record must contain on its face direct evidence that the accused was aware, or made aware, of his right to confrontation, to a jury trial, and against self-incrimination, as well as the nature of the charge and the consequences of his plea.   Each must be enumerated and responses elicited from the person of the defendant.”  (Id. at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449.)

The Tahl court did not, however, require that everything necessary to be said be told the defendant at the time of entry of waiver.   The court recognized that the circumstance of taking of a guilty plea is different from that of waiver of constitutional rights during a trial, where “a waiver of constitutional rights may be implied and need not necessarily be preceded by a full explanation of each right and its consequences.”  (Tahl, supra, 1 Cal.3d at p. 133, 81 Cal.Rptr. 577, 460 P.2d 449.)   In the Tahl case itself the Supreme Court acknowledged that the presence of the defendant during voir dire proceedings would have resulted in his hearing and presumed understanding of the nature of the charges and their consequences in terms of penalty.   (Id. at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449.)   In a footnote the court explained that “[w]hat is required is evidence that the particular right was known to and waived by the defendant.   The explanation need not necessarily be by the court, although the waiver must be by the defendant.”  (Id. at p. 133, fn. 6, 81 Cal.Rptr. 577, 460 P.2d 449.)

When the court in Yurko reiterated the Boykin–Tahl requirement of on-the-record admonitions and waivers, it deemed it appropriate to add “We acknowledge that there may be other circumstances in particular cases which may warrant the finding of a proper waiver as we noted in Tahl, ” citing footnote six from Tahl.  (In re Yurko, supra, 10 Cal.3d at p. 863, fn. 6, 112 Cal.Rptr. 513, 519 P.2d 561.)   Again, in In re Mosley (1970) 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 473 [a case dealing with admonitions and waivers required before submitting the case on the basis of the preliminary transcript] the court found it appropriate to consider “petitioner's conduct at the trial, ․ together with his knowledge of the evidence which had been produced against him at the preliminary examination, ․”;  and found from all the circumstances that there was “little room for speculation that [the defendant] was not fully aware of the import of submitting the case ․ on the transcript․”  (Id. at p. 925, 83 Cal.Rptr. 809, 464 P.2d 473.)

We have examined People v. Guzman and its interpretation by the Court of Appeal in People v. Ray.   While we agree that Guzman does not alter the basic rule of reversal for failure of Yurko constitutional advisement, it certainly stands for a concept of practical and reasonable construction of on-the-record advisements.   The court in Guzman found the reference by the trial court to waiver of a “hearing” was adequate advisement of waiver of right to jury trial.   It did so, however, on the basis that “[o]n this record there is no reasonable probability that, if the term ‘jury trial’ instead of ‘hearing’ had been used, defendant ․ would have denied the priors․”  (People v. Guzman, supra, 45 Cal.3d at p. 968, 248 Cal.Rptr. 467, 755 P.2d 917.)   The “record” of the Guzman trial disclosed the taking of waivers of jury trial of the existence of prior felony convictions after the defendant had experienced a full death penalty jury trial on the substantive charges.   The teaching of Guzman, we believe, is not that error in failing to give Yurko advisement is subject to harmless error analysis, but that apparent errors in the terminology of advisements can be found harmless (i.e., not errors at all) when the advisement is measured in terms of the total record.

In order to weigh the effect of the advisement given, or not given, to Manzano, we must review the entire proceeding.   We note that the advisement session followed a full jury trial, attended by Manzano.   Manzano had been represented at all times by counsel, had exercised his right to jury trial, to confront and to cross-examine witnesses and to call witnesses on his own behalf.   He had elected to remain silent during trial, and heard the jury instructed as to his constitutional right against self-incrimination.   He also had stipulated to having the jury advised that he had suffered a prior felony conviction for burglary and had served a prison term for that conviction, in lieu of the prosecutor's proving that element of the crime of petit theft.

The conclusion that Manzano was well aware, at the time of waiver of his Yurko rights, of his privilege against self-incrimination becomes compelling when the specific timing of events in Manzano's case is reviewed.   Jury instructions and the stipulation admitting the prior burglary were given at 1:31 p.m.   Manzano was present when CALJIC instructions advising of his privilege against self-incrimination were read to the jury.7  The jury reached its verdict at 4 o'clock the same afternoon.   The trial of prior felonies having been bifurcated, the court then inquired of defense counsel concerning trial of the priors.   On the record the court stated:  “At side bar the court inquired of counsel whether the defendant wished to have a jury trial on the issue of his three serious felony priors, and I believe [counsel for defendant] has had a chance to speak with Mr. Manzano and that he desires to have a court trial on those priors;  is that correct ․?”  Counsel responded affirmatively.   The court then inquired directly of the defendant and received an affirmative reply.   The jury was released at 4:16 p.m.

The prosecution then indicated to the court its willingness to proceed with the court trial of the priors, and referred to the availability of documentation which had been previously marked by the clerk for the purpose of establishing the priors.   At that point counsel for the defendant stated “Mr. Manzano will admit the three priors, stipulate to them, whatever.”   The court then advised Manzano of his rights and took his waivers, as previously set forth in footnote four, ante, at page 814.

 On this record, we have no hesitancy in finding that at the time of his waiver of trial and admission of prior felonies, Manzano was well aware of the one constitutional right not specifically referenced by the court—the privilege against self-incrimination.   We do not reach this conclusion by way of inference from conduct.   We make the determination because we know Manzano had (1) participated in a full jury trial in which he utilized his privilege against self-incrimination, being represented at all times by counsel, and (2) less than three hours before the waiver had listened to full and accurate instructions to the jury which detailed his privilege against self-incrimination.   As stated in footnote six to In re Tahl, supra, 1 Cal.3d at p. 133, 81 Cal.Rptr. 577, 460 P.2d 449, “[w]hat is required is evidence that the particular right was known to and waived by the defendant.”   The record here amply supports the conclusion that Manzano well knew of his privilege against self-incrimination, and that he knowingly waived that trial right along with the other constitutional rights specifically referenced by the court in its final admonition.

DISPOSITION

The jury verdict is affirmed.   The judgment of conviction of petit theft with a prior is reversed;  otherwise the judgment is affirmed.

I concur in parts I, II, and that portion of III entitled “2.   The Record as a Whole Reveals Sufficient Advisements to Satisfy Yurko Requirements.”   I also concur in the result.   I disagree, however, with the dicta contained in that portion of part III entitled “1.   Existing Precedent Precludes the Application of Harmless Error Doctrine to Yurko Error.”

The majority has, correctly in my view, concluded Manzano was fully aware of his trial rights at the time he voluntarily waived jury trial and admitted his prior felony convictions.   Inexplicably, however, the majority has chosen to add to its opinion a gratuitous interpretation of the Supreme Court's decisions in People v. Guzman (1988) 45 Cal.3d 915, 968, 248 Cal.Rptr. 467, 755 P.2d 917 and People v. Karis (1988) 46 Cal.3d 612, 650, 250 Cal.Rptr. 659, 758 P.2d 1189.   In dicta the majority makes an interesting comment referring to People v. Guzman:  “We note from the above quote that the court (1) recognized the existence of clear constitutional Yurko [In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561] error, (2) applied the harmless error test to it, and (3) in so doing expressly approved People v. Prado [ (1982) 130 Cal.App.3d 669, 182 Cal.Rptr. 129], the one case which most clearly had enunciated the applicability of harmless error doctrines to Yurko error.   The argument could well be made that this signaled a change in Supreme Court approach to reversal per se for Yurko error.   A literal reading of the above passage supports that contention․”  (Maj. opn., ante, pp. 817–818.)   The majority thereafter elects, however, to follow the opinion of the Court of Appeal in People v. Ray (1990) 220 Cal.App.3d 943, 269 Cal.Rptr. 682, which concludes that although the Supreme Court said harmless error applies to Yurko trial rights waivers, they didn't really mean it.   Respectfully, in this case we should not even be swimming in the harmless error pool, and we certainly should not be adding mud to its already murky waters.

I believe the majority's conclusion that Yurko errors are reversible per se and its direct rejection of two Supreme Court cases squarely holding to the contrary is misguided.   The majority then joins the panel in People v. Ray, supra, 220 Cal.App.3d 943, 269 Cal.Rptr. 682 elevating Yurko error to the very select group of trial court errors not subject to the harmless error rule.1  Because I believe this portion of the majority opinion is not only dicta, but wrong, I am compelled to respond to it.

The majority relies heavily on People v. Ray, supra, 220 Cal.App.3d 943, 269 Cal.Rptr. 682 for the proposition the harmless error rule does not apply to the failure to completely advise a defendant of his Yurko trial rights before taking a waiver.   That court found the Yurko warning was in two parts:  the admonition of trial rights and the advisement of consequences.   After reviewing numerous earlier cases, the court in Ray concluded the failure to fully advise of consequences is subject to harmless error because it is not constitutionally mandated, but the failure to warn of trial rights is not, as those rights are mandated by Tahl.2

Ray, however, as well as the landmark Boykin 3 /Tahl/Yurko cases concerning the waiver of trial rights, involved the taking of admissions on guilt or priors pretrial.   In marked contrast, this case concerned admissions and waivers after a jury trial, the record of which reflects Manzano had exercised the full panoply of trial rights before he admitted his prior convictions.

The majority's reliance on Ray is also questionable because of that court's summary dismissal of Karis and Guzman, deeming those cases not to actually hold what their plain language states.   In Karis, a unanimous Supreme Court, although dealing with an alleged failure to advise of consequences in a Yurko waiver said:

“Prior to accepting a defendant's admission that he has suffered a prior conviction, when that prior is charged for the purpose of enhancing a term imposed under the Determinate Sentencing Act, the court must advise the defendant of, and obtain on the record, express waivers by the defendant of the constitutional rights he waives by his admission.   The court must also advise the defendant of the impact the finding of prior conviction will have on his term.   If the advice and waivers do not appear on the record the finding must be set aside on appeal if prejudice appears.”  (People v. Karis, supra, 46 Cal.3d at p. 650, 250 Cal.Rptr. 659, 758 P.2d 1189, italics added.)

In Guzman, the alleged Yurko error was specifically in the admonition of trial rights;  the trial court had advised the defendant of the right to a “hearing,” rather than the right to a jury trial.   The court, relying on two Court of Appeal cases 4 (one of which the court in Ray found inconsistent with Yurko ), responded to the Attorney General's assertion of harmless error by saying:

“We agree.   On this record there is no reasonable probability that, if the term ‘jury trial’ instead of ‘hearing’ had been used, the defendant (i) would have denied the priors and (ii) they would not have been found true.   There is no dispute that defendant has suffered the priors and served the prison terms therefor.   We therefore conclude the error was harmless.”   (People v. Guzman, supra, 45 Cal.3d at p. 968, 248 Cal.Rptr. 467, 755 P.2d 917.)

Ray glosses over Karis and Guzman, finding the Supreme Court could not have meant what it said in those cases concerning the application of a harmless error standard which would include the trial rights portion of the Yurko warning.  (People v. Ray, supra, 220 Cal.App.3d at p. 948, 269 Cal.Rptr. 682.)   To reach this conclusion, the court in Ray reasoned that in order for the Supreme Court to have meant what it said, it would have to have departed from the federal mandate in Boykin and would have had to overrule its previous decisions in “Tahl, Yurko, Ronald E. [In re Ronald E. (1977) 19 Cal.3d 315, 321–326, 137 Cal.Rptr. 781, 562 P.2d 684], Ibarra [In re Ibarra (1983) 34 Cal.3d 277, 283, fn. 1, 193 Cal.Rptr. 538, 666 P.2d 980] and Wright [People v. Wright (1987) 43 Cal.3d 487, 233 Cal.Rptr. 69, 729 P.2d 260].”  (People v. Ray, supra, 220 Cal.App.3d at p. 948, 269 Cal.Rptr. 682.)   The difficulty with such analysis is none of the cases cited by the court in Ray address the question of whether it is appropriate to apply harmless error to Yurko error in a particular fact situation.

Boykin and Tahl, as we know, dealt with the requirements of a valid plea of guilty and did not address the issue of priors, let alone harmless error.   Yurko merely extended and expanded the Boykin /Tahl warnings as applied to priors.  Ronald E. concerned the admissions for a true finding in a juvenile case and Ibarra merely stated the Boykin /Tahl rule regarding per se reversal for failure to advise of trial rights for the taking of a guilty plea.

Moreover, Wright had nothing to do with priors, dealing instead with alleged errors in the warnings involved in the submission of a case for trial on the transcript of the preliminary hearing.   The question in Wright was whether there was a “slow plea” or whether guilt was still being contested.   Ultimately, that court concluded the case did not present a “slow plea” and thus any error was harmless.   The opinion written by Justice Broussard, and concurred in by Justices Mosk, Grodin and Reynoso, discussed a wide range of waiver circumstances, including Yurko waivers, which admittedly implies Yurko error as to trial rights might be reversible per se.   However, that discussion was without analysis.   The remaining members of the court joined only in the result, holding any error had been harmless.

It is thus apparent the first Supreme Court case to address a squarely presented Yurko error issue as to trial rights was Guzman.   In that case, the court made clear the harmless error rule was applicable to any such error.   That the majority, or some other appellate court, would have liked more discussion on the issue, or that it thought it would be appropriate to dispatch some earlier unrelated case with overly broad language does not detract from the clarity of the supreme court's holding.

Clearly, the Supreme Court meant what it said, voluntary admissions of prior convictions are to be set aside on appeal because of errors in warnings only “․ if prejudice appears.”  (People v. Karis, supra, 46 Cal.3d at p. 650, 250 Cal.Rptr. 659, 758 P.2d 1189.)   That court in Karis made no effort to qualify its broad language regarding the requirement of prejudice nor did it indicate it was making the fine separation of the components of Yurko made by the court in Ray.   If we, as intermediate courts, cannot apply such a clear statement of law from the high court, then perhaps the problem is of our making and not, as Ray and the majority suggest, that of the high court.

That the Supreme Court meant what it said is further supported by its own comments in Ibarra concerning the mandate of Tahl, “that something less than full admonishment of the defendant by the court might be permissible in a proper context.”  (In re Ibarra, supra, 34 Cal.3d at p. 285, 193 Cal.Rptr. 538, 666 P.2d 980, citing In re Tahl, supra, 1 Cal.3d at p. 133, 81 Cal.Rptr. 577, 460 P.2d 449.)   If we are going to consider harmless error, this case is in the “proper context” to apply “something less than full admonishment.”

Thus, if the application of the harmless error doctrine was necessary for resolution of this case, I would apply the rule of Karis and Guzman to the facts of this case.   From those facts I would conclude no prejudice can be shown which would warrant reversal.   As the majority recognizes, there is not the slightest hint Manzano would have had second thoughts about admitting the priors if he had been advised at the time of this admission he was giving up his right of silence.   As the majority correctly notes, it was Manzano through counsel who twice interrupted the trial court's efforts to give him, first, a jury, then a court trial.   There is no serious doubt the district attorney who was in the process of proving the priors would have been able to do so.   There is virtually no question an application of the harmless error doctrine to this case would find no reversible error.

To reiterate, however, the majority has correctly determined Manzano was fully aware of his trial rights at the time of the admission of the priors.   The harmless error doctrine, therefore, is simply inapplicable to this case and the discussion of the doctrine completely unnecessary for its resolution.   I have undertaken to respond to the dicta of the majority simply to point out the Supreme Court has made very clear the harmless error doctrine applies to all aspects of the Yurko rule.   I do not believe Courts of Appeal ought to ignore or attempt to rationalize away clear directions from the Supreme Court, nor should we load the official reports with dicta on this topic in the hope the overburdened Supreme Court will tell us “one more time” what it has twice made crystal clear.   I therefore decline to join the majority's harmless error discussion.

FOOTNOTES

FN2. All statutory references are to the Penal Code unless otherwise specified..  FN2. All statutory references are to the Penal Code unless otherwise specified.

3.   Theft, as defined in section 484, is divided into “grand” theft (§ 487) and “petty” theft (§ 488).   Other associated code sections also refer to “petty” theft (see, e.g., § 490.5).   However, the enhanced crime of conviction of theft following a prior conviction, as set forth in section 666, refers to “petit.”   We infer from the wording of section 666 (“[e]very person who, having been convicted of petit theft, ․”) that the reference to “petit” theft is in fact to “petty” theft as set forth in the earlier sections.   Since the defendant in this case was faced with a charge of “petit theft with a prior conviction,” we utilize throughout our opinion this form of spelling, which has been described by grammatical authority as the preferred form.  (See Garner, A Dictionary of Modern Legal Usage (1987) p. 415.)

FOOTNOTE.   See footnote 1, ante.

4.   The full transcript of the examination is as follows:“THE COURT:  Mr. Manzano, do you understand you are entitled—we talked about the jury trial which you waived, but you are entitled to have a trial where the People have to prove each prior by presenting competent evidence, and then the court would make a decision on the validity of that evidence on the validity of each of the priors.   Do you understand that?“THE DEFENDANT:  Yes.“THE COURT:  Do you waive that additional right and admit each of these three serious felony priors?“THE DEFENDANT:  Yeah.“THE COURT:  Do you understand that each of these potentially could add five years to any sentence that may be imposed?“THE DEFENDANT:  Yeah.“THE COURT:  Sir, do you understand that?“THE DEFENDANT:  Yes.“THE COURT:  Does either counsel have any further questions with regard to the waiver?“MR. DUSEK:  I believe he also has the right to confront and cross-examine any witnesses that he would be waiving.“THE COURT:  Do you understand that, sir?“THE DEFENDANT:  No.“THE COURT:  Well, if the People were going to present witnesses, you would be entitled to confront and cross-examine them.   I believe the proof that the People expect to present is documentary proof;  is that correct, Mr. Dusek?“MR. DUSEK:  Yes.“THE COURT:  Of course you'd be entitled to present evidence that tended to disprove these priors, if you'd like to do so.   Do you understand those rights?“THE DEFENDANT:  Yes.“THE COURT:  Do you waive those as well?“THE DEFENDANT:  Yes.“THE COURT:  Anything further?“MR. DUSEK:  Other than an admission to each and every prior.“THE COURT:  With regard to the first serious felony prior, it is alleged that on or about June the 24th, 1975, in the superior court of the State of California, San Diego County, you were convicted of a serious felony robbery with personal use of a firearm, four counts, in violation of Penal Code sections 211 and 12022.5, separately brought and tried within the meaning of Penal Code section 667(A) and 1192.7(C)(19)(8).   Do you admit or deny that prior?“THE DEFENDANT:  I did time for it.“THE COURT:  Are you saying you admit that prior?“THE DEFENDANT:  Yeah.“THE COURT:  And with regard to the second serious felony prior, it is alleged that on or about March the 4th, 1983, in the superior court of the State of California, County of San Diego, you were convicted of a serious felony, burglary of an inhabited dwelling, with use of a deadly weapon, in violation of Penal Code sections 459 and 12022(B), separately brought and tried within the meaning of Penal Code section 667(A) and 1192.7(C)(18)(8).   Do you admit or deny that prior?“THE DEFENDANT:  Yeah.   Yes.“THE COURT:  You admit it?“THE DEFENDANT:  Yeah.“THE COURT:  With regard to the third serious felony prior, it is alleged that on or about May the 22nd, 1985, in the superior court of the State of California, for the County of San Diego, you were convicted of a serious felony, attempted robbery with use of a deadly weapon, in violation of Penal Code sections 664, 211 and 12022(B), separately brought and tried within the meaning of Penal Code section 667(A) and 1192.7(C)(27)(19)(8).   Do you admit or deny this prior?“THE DEFENDANT:  Yes.“THE COURT:  Do you admit it, sir?“THE DEFENDANT:  Yes.“THE COURT:  Are the People satisfied?“MR. DUSEK:  Yes.”

5.   See, e.g., People v. Balderrama (1990) 221 Cal.App.3d 282, 270 Cal.Rptr. 432;  People v. Garcia (1988) 201 Cal.App.3d 324, 247 Cal.Rptr. 94;  People v. Casarez (1981) 124 Cal.App.3d 641, 177 Cal.Rptr. 451;  People v. Bell (1981) 118 Cal.App.3d 781, 173 Cal.Rptr. 669;  People v. Knighten (1980) 105 Cal.App.3d 128, 164 Cal.Rptr. 96;  People v. Hernandez (1979) 100 Cal.App.3d 637, 160 Cal.Rptr. 607;  People v. Pimentel (1979) 89 Cal.App.3d 581, 152 Cal.Rptr. 519;  People v. Johnson (1978) 77 Cal.App.3d 866, 143 Cal.Rptr. 852.

6.   In addition to People v. Prado (1982) 130 Cal.App.3d 669, 182 Cal.Rptr. 129, People v. English (1981) 116 Cal.App.3d 361, 172 Cal.Rptr. 122 has been cited as standing for the proposition that failure of Yurko constitutional advisements can be subject to a prejudicial error analysis.   We believe the case cannot be cited broadly for this proposition, because the principal error in advisement was in failing to explain the penal consequences which would result from the admission of the prior felony (hence, constituting it a non-constitutional Yurko error).   The error of alleged constitutional dimension in English, relating to the self-incrimination advisement, was properly rejected on substantive grounds (statement that defendant had right “to testify or not testify, as you choose” held adequate explanation of the privilege against self-incrimination).  (Id. at p. 367, 172 Cal.Rptr. 122.)   We should also note People v. Shippey (1985) 168 Cal.App.3d 879, 214 Cal.Rptr. 553, in which the court found failure to advise both of the constitutional rights being waived and the Yurko “rule of court” advisement of penal consequences.  (Id. at p. 889, 214 Cal.Rptr. 553.)   Nevertheless, the court, without explanation, applied a harmless error test to determine reversibility.   However, since the court found prejudice from the error, and reversed, the case can hardly be deemed authority for applicability of a harmless error test to deny reversal for Yurko error.

7.   The jury was specifically instructed under CALJIC Nos. 2.60 and 2.61 as follows:“A defendant in a criminal trial has a constitutional right not to be compelled to testify.   You must not draw any inference from the fact that a defendant does not testify.“Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way.”  [CALJIC No. 2.60.]“In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him.“No lack of testimony on the defendant's part will makeup for a failure of proof by the People so as to support a finding against him on any such essential elements.”  [CALJIC No. 2.61.]

1.   Interestingly, this term the United States Supreme Court has decided even the admission at trial of a coerced confession in violation of the Fifth Amendment is subject to harmless error analysis.  (See Arizona v. Fulminante (1991) 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302.)

2.   (In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.)

3.   (Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.)

4.   The court in Guzman relied on People v. English (1981) 116 Cal.App.3d 361, 369–370, 172 Cal.Rptr. 122, which had applied harmless error to the failure to advise of consequences under Yurko, and on People v. Prado (1982) 130 Cal.App.3d 669, 675–676, 182 Cal.Rptr. 129, which applied the harmless error rule to an error in the advisement of trial rights during a Yurko waiver.  Ray, without analysis, specifically found fault with the holding of Prado.  (People v. Ray, supra, 220 Cal.App.3d at p. 947, 269 Cal.Rptr. 682.)

FROEHLICH, Associate Judge.

BENKE, Acting P.J., concurs.

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