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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. Dyke Edward NELSON, Defendant and Appellant.

No. B043285.

Decided: September 27, 1991

Robert Rabe, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., Robert F. Katz and William T. Harter, Supervising Deputy Attys. Gen., for plaintiff and respondent.

Dyke Edward Nelson appeals from the judgment entered following a jury trial in which he was convicted of two counts of attempted murder with great bodily injury (Pen.Code, §§ 664/187, 12022.7) and four counts of assault with a firearm, in three of which the victim suffered great bodily injury (Pen.Code, §§ 245, subd. (a)(2), 12022.7).   As to all six counts, appellant was found to have personally used a firearm (Pen.Code, § 12022.5), and he admitted that he had been convicted of a prior serious felony (Pen.Code, § 667, subd. (a)) and had served a prior prison term (Pen.Code, § 667.5, subd. (b)).  He contends:  “I. It was error to tell the jury it could draw adverse inferences from appellant's failure to explain or deny evidence against him.   II. Appellant was not advised of his rights before he admitted his prior convictions.”

On September 30, 1988, at approximately 2 a.m., Sharre Whitham, appellant's former girlfriend, Timothy Gregory, Whitham's current boyfriend, who was a bartender at the Mayfair Hotel, Edward Florez, and his girlfriend, Trinidad Garcia, left the bar at the Mayfair Hotel.   As they walked towards Garcia's car, Whitham heard a sound like jiggling keys which reminded her of the keys appellant always carried on his hip.   Before they got to Garcia's car, appellant fired several shots at the group.   Whitham was shot in the lower abdomen, Gregory was shot in the left forearm, and Florez was shot in the fingers and stomach.

Prior to the incident appellant had threatened Gregory, saying that he had guns and would use them because he was dating Whitham.   He told Gregory that he had an M–16 that “shoots real well” and he was not afraid to use his guns.1  According to Whitham, she and appellant had been lovers, but she broke off her relationship with him because of his jealousy and possessiveness.

Pomona Police Officer Michael Ervin responded to a shots-fired call sometime after 2 a.m. on September 30, 1988.   Based upon information he received, he sent units shortly thereafter to the Pip Printing building, which was only a block away from the scene of the shooting.   The Swat Team was called, and appellant was thereafter arrested.   During booking at the police station, a ring of keys was taken from appellant.

Pomona Police Detective Steve Walker investigated the shooting and found two expended bullets that were characteristic of a .22 caliber weapon.   He also found five .22 caliber Remmington shell casings.   That same day, he executed a search warrant at the Pip Printing building where appellant lived above the printing shop.   Underneath the carpet, Detective Walker found a .22 caliber rifle loaded with Remmington bullets.   He also found an empty box of Remmington .22 cartridges.   Fingerprints from the rifle were later identified as belonging to appellant.

Appellant denied shooting anyone.   He claimed that on the night of the shooting he was drunk, went to his apartment at 11:30 p.m. and fell asleep.   When he awoke the next morning, he went outside and was arrested by the Swat Team.   Appellant explained that he obtained the empty box of .22 shells when he got the rifle from an acquaintance from whom he later hid the gun.

During his direct examination, appellant admitted the prior robbery and burglary convictions, stating that he pled guilty in both cases.   He asserted he was fighting the instant case because he was not guilty.   He again admitted the convictions on cross-examination.   After appellant was convicted, the issue of appellant's priors was addressed and the court noted that because of his testimony, there was “probably sufficient” proof of the priors.   After further discussion off the record, the jury was told they would decide the next day whether the two prior convictions were true.   The next morning, appellant decided to admit the priors and was then informed of, and waived, his right to a jury trial.   He was not specifically and expressly advised of his right to confront witnesses or his privilege against self-incrimination, nor did he state that he waived them.



 Appellant's contention that the court committed prejudicial error when it instructed the jury it could consider the failure to explain or deny certain facts when he testified (CALJIC No. 2.62) is without merit.   Contrary to appellant's argument, he was not prejudiced by this instruction.   Appellant categorically denied the shootings, stating that he was asleep in his apartment when they occurred, and the jury was told that the instruction was applicable only if they found appellant failed to explain or deny any evidence or facts against him “which he can reasonably be expected to deny or explain.” 2  Appellant's denial was further corroborated by other witnesses.   The jury was also instructed to “[d]isregard any instruction which applies to facts determined by you not to exist.”  (CALJIC No. 17.31.)   The jury is presumed to have followed the court's instruction.  (See People v. Beach (1983) 147 Cal.App.3d 612, 624, 195 Cal.Rptr. 381.)   Under these circumstances, the error, if any, was harmless.  (See People v. James (1987) 196 Cal.App.3d 272, 296, 241 Cal.Rptr. 691;  People v. Campbell (1978) 87 Cal.App.3d 678, 684–686, 151 Cal.Rptr. 175.)


 Appellant contends that the judgment must be reversed concerning his two prior felony convictions because he did not specifically waive his constitutional right to confront witnesses or his privilege against self-incrimination before he admitted the prior felony convictions.   Under In re Yurko (1974) 10 Cal.3d 857, 861–863, 112 Cal.Rptr. 513, 519 P.2d 561, it has long been held that a criminal defendant must be advised of, and must waive, three specific constitutional rights before his admission that he has suffered a prior felony conviction can be validly accepted.   The three enumerated rights are the privilege against self-incrimination, the right to confrontation of witnesses and the right to a jury trial.  (Ibid.)  Although the record discloses that appellant was expressly advised of and waived his right to a jury trial and waived his privilege against self-incrimination by testifying, we find that appellant was not advised of nor did he waive his right to confrontation concerning his prior convictions.

Prior to the jury's verdict and in the presence of the jury, appellant testified that he had previously been convicted of both attempted robbery and burglary and pled guilty in those cases.3  After the verdicts, the trial court explained to the jury that the case had been “bifurcated at the outset” with respect to the prior felony convictions and indicated that the jury had already “heard some testimony in this case” relating to the felony convictions and that it remained necessary to make a finding regarding their truths.   Outside the presence of the jury the court discussed the fact that appellant had “admitted the priors in the presence of the jury.   Whether or not he's admitted each and every element that [the prosecutor had] alleged is something else again.   I am really not sure.”

Subsequent to the jury's guilty verdicts, the court expressly advised appellant of his right to a jury trial, and appellant waived that right.   The trial court did not further advise appellant concerning the constitutional rights which would be waived upon admission of the priors.   However, with reference to the fact that appellant had already admitted these priors to the jury, it is clear that such testimony constitutes a direct waiver of a defendant's privilege against self-incrimination.  (People v. Mora (1984) 153 Cal.App.3d 18, 24, 199 Cal.Rptr. 904;  People v. Mack (1977) 66 Cal.App.3d 839, 861, 136 Cal.Rptr. 283;  People v. Ingram (1976) 60 Cal.App.3d 722, 726–727, 131 Cal.Rptr. 752.)

But nothing in the present record indicates that appellant was advised of or waived his right to confrontation of witnesses.   Respondent urges that we may apply a harmless error analysis to the trial court's failure to obtain a proper waiver of appellant's right to confrontation as to the prior felony conviction enhancement allegations.   In support of this position, respondent cites 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, 650–651, 250 Cal.Rptr. 659, 758 P.2d 1189, as well as People v. Prado (1982) 130 Cal.App.3d 669, 675, 676, 182 Cal.Rptr. 129.   We do not view People v. Guzman, supra, or People v. Karis, supra, as standing for that proposition and reject any holding in People v. Prado, supra, which does.

In requiring that the record contain a specific, express showing on its face of advisement of each of the three enumerated constitutional rights in order to have a proper waiver and admission of a prior felony conviction, the Supreme Court in In re Yurko, supra, 10 Cal.3d 857, 862–863, 112 Cal.Rptr. 513, 519 P.2d 561, used language indicating that a “reversible error per se” standard of review applied.   The Supreme Court stated, “Where no such showing appears on the face of the record the conviction must be set aside.”  (Id. at p. 862, 112 Cal.Rptr. 513, 519 P.2d 561.)   At the same time, the Supreme Court in Yurko also judicially created a nonconstitutional rule of procedure that required defendants to be advised of the consequences of their admissions.   However, failure to meet this nonconstitutional requirement requires reversal only “if prejudice appears.”  (Id. at p. 864, 112 Cal.Rptr. 513, 519 P.2d 561.)

In a case that perhaps spawned some of the confusion surrounding the standard of review which must be applied concerning admission of prior convictions, the Supreme Court in In re Ronald E. (1977) 19 Cal.3d 315, 137 Cal.Rptr. 781, 562 P.2d 684, held that the failure of a trial court merely to advise an accused of the consequences of an admission was error requiring reversal only if prejudicial to the accused.   The Supreme Court applied the harmless error test of People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243 and found that the failure to advise the accused of the consequences of his admission was harmless.  (In re Ronald E., supra, 19 Cal.3d at pp. 321, 325–326, 137 Cal.Rptr. 781, 562 P.2d 684.)

Also adding to the possibility of confusion was the Court of Appeal decision in People v. English (1981) 116 Cal.App.3d 361, 369–371, 172 Cal.Rptr. 122.   Because in that case the defendant received no specific advisement regarding the consequences of his admission, the court there applied the harmless error test as explained in In re Ronald E., supra.   However, in advising the defendant prior to his admission, the trial court in English had told him that he could “testify or not [ ] testify, as you choose.”   The Court of Appeal held that the reversible error per se standard was not applicable since the trial court had in fact advised the defendant as to all three of the specific constitutional rights.   The court found that the advice to the defendant that he could “ ‘testify or not [ ] testify, as you choose’ ” had “conveyed the essential character of appellant's privilege against self-incrimination to him in nonlegalistic terms comprehensible to a layman” and thus presented “no ambiguity.”   Thus, the advisement standard of In re Yurko, supra, 10 Cal.3d at page 863, 112 Cal.Rptr. 513, 519 P.2d 561, had been satisfied.  (People v. English, supra, 116 Cal.App.3d at pp. 370–371, 172 Cal.Rptr. 122.)   The court in English did not apply a harmless error test as to the advisement of the three specific constitutional rights but rather held that there had been full and specific advisement, albeit in laymen's terms.

Indeed, with respect to review where the trial court has failed to advise concerning any or all of the three specific rights, the California Supreme Court has itself followed the rule requiring automatic reversal of that part of a judgment resting on a plea or admission.  (In re Ibarra (1983) 34 Cal.3d 277, 283, fn. 1, 193 Cal.Rptr. 538, 666 P.2d 980;  People v. Wright (1987) 43 Cal.3d 487, 495, 233 Cal.Rptr. 69, 729 P.2d 260.)   The automatic reversal rule has generally been stated more emphatically in opinions of the Court of Appeal.  (People v. Ray (1990) 220 Cal.App.3d 943, 269 Cal.Rptr. 682;  People v. Johnson (1989) 212 Cal.App.3d 1179, 1182, 261 Cal.Rptr. 159;   People v. Pimentel (1979) 89 Cal.App.3d 581, 588, 152 Cal.Rptr. 519.)

Two opinions of panels of the Court of Appeal have, however, applied a harmless error test to claims that a trial court had failed to advise of the constitutional rights as required by In re Yurko, supra.  (In each of these two cases there appears to have been both a failure to advise of the specific rights as well as a failure to advise concerning the consequences.)   These two cases are People v. Prado, supra, 130 Cal.App.3d 669, 675, 182 Cal.Rptr. 129, and People v. Shippey (1985) 168 Cal.App.3d 879, 889–890, 214 Cal.Rptr. 553.   However, People v. Shippey, supra, which relies on People v. Prado, supra, has neither been followed nor cited for this proposition in other appellate opinions except by the court in People v. Ray, supra, 220 Cal.App.3d 943, 947, 269 Cal.Rptr. 682, which criticized it.   In People v. Prado, supra, 130 Cal.App.3d 669, 675, 182 Cal.Rptr. 129, the record did not show the defendant was advised of the rights he waived in admitting the prior convictions, nor did it show that he had been advised of the consequences of such admission.   Citing In re Ronald E., supra, 19 Cal.3d 315, 325, 137 Cal.Rptr. 781, 562 P.2d 684, and People v. English, supra, 116 Cal.App.3d 361, 368, 172 Cal.Rptr. 122, the Court of Appeal held that “reversal 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.”  (People v. Prado, supra, 130 Cal.App.3d at p. 675, 182 Cal.Rptr. 129.)

Although People v. Prado, supra, has not been followed by other courts of appeal, it was cited with apparent approval, along with People v. English, supra, 116 Cal.App.3d 361, 369–370, 172 Cal.Rptr. 122, by the California Supreme Court in People v. Guzman, supra, 45 Cal.3d 915, 968, 248 Cal.Rptr. 467, 755 P.2d 917.   However, in Guzman the court had “properly advised defendant of his rights to cross-examine witnesses, to call his own witnesses, to remain silent and to be represented by counsel, as well as the legal consequences of admitting the priors.   Instead of expressly telling defendant he had a right to a ‘jury trial,’ however, the court told defendant he had the right to a ‘hearing’ at which the truth of the priors would have to be proved beyond a reasonable doubt.”  (Ibid.)  The Supreme Court found that there was “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.”  (Ibid.)

In assessing the significance of the Supreme Court's decision in Guzman, we agree with the conclusion reached in People v. Ray, supra, 220 Cal.App.3d 943, 269 Cal.Rptr. 682.   There, the Court of Appeal found that the Supreme Court did not, either by its holding in Guzman or by its citation of Prado, intend to overrule its previous decisions in In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, In re Yurko, supra, 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561, nor its decisions in In re Ibarra, supra, 34 Cal.3d 277, 283, fn. 1, 193 Cal.Rptr. 538, 666 P.2d 980, or in People v. Wright, supra, 43 Cal.3d 487, 493–494, 233 Cal.Rptr. 69, 729 P.2d 260, which adhered to the per se reversal rule.  (People v. Ray, supra, 220 Cal.App.3d at p. 948, 269 Cal.Rptr. 682.)

Although the Supreme Court in Guzman cited People v. Prado, supra, 130 Cal.App.3d 669, 182 Cal.Rptr. 129, to support its conclusion that harmless error applied to Guzman's admission of his priors, it did so, as explained in People v. Ray, supra, 220 Cal.App.3d 943, 948, 269 Cal.Rptr. 682, “without any discussion of the point or any indication it had in mind what those precedents [i.e., Tahl, Yurko, Ronald E., Ibarra and Wright ] said as to the standard of prejudice.”   As aptly noted in People v. Ray, supra, “In Guzman the trial court had not completely omitted any of the three rights specified in Tahl, but had referred vaguely to the right to a ‘ “ ‘hearing’ ” ' rather than specifically to a ‘ “ ‘jury trial.’ ” '   We read Guzman as holding only that harmless error analysis may be used to assess the effect of advisements which are overly vague․  [¶ ] Considerations of logical consistency and practical difficulty also militate against holding the constitutional variety of Yurko error subject to harmless error analysis.   Such a holding would create an anomaly in that constitutional Yurko error would be potentially harmless, but constitutional Boykin–Tahl error would not be.   The constitutional aspect of Yurko was based on the Boykin–Tahl principles.   The Yurko court reasoned that the potential magnitude of punishment created by admission of prior convictions, as well as the rights waived, was the equivalent of those involved in pleading guilty to a substantive offense, and that trial courts must therefore exercise ‘a comparable solicitude’ in accepting such admissions.  (10 Cal.3d at pp. 862–863, 112 Cal.Rptr. 513, 519 P.2d 561.)   No reason appears why the operation of the two rules should be different as to review of the error.”  (People v. Ray, supra, 220 Cal.App.3d at pp. 948–949, 269 Cal.Rptr. 682.) 4

Nor does the Supreme Court's use of harmless error analysis concerning Yurko error in People v. Karis, supra, 46 Cal.3d 612, 650–651, 250 Cal.Rptr. 659, 758 P.2d 1189, provide support to respondent's argument.   The error in Karis concerned the adequacy of the trial court's advice concerning the consequences of the admission (i.e., the length of the enhancement terms), and People v. Guzman, supra, was not cited.   Such Yurko error, as previously discussed, is subject to the harmless error test.  (In re Ronald E., supra, 19 Cal.3d 315, 325–326, 137 Cal.Rptr. 781, 562 P.2d 684.)

Thus, we agree that the Supreme Court has not rejected the per se reversible error rule concerning failure to advise of constitutional rights nor substituted for it the harmless error rule.   The trial court's failure to obtain, on the record, therefore, a knowing waiver of appellant's right to confrontation constitutes Yurko error which is per se reversible.

Nonetheless, we join the court in People v. Ray, supra, 220 Cal.App.3d 943, 950, 269 Cal.Rptr. 682, in urging that “[i]t may be that Yurko is due for reexamination,” and agree particularly with Justice King (who observed in his concurring opinion) that, in spite of the result that present law requires, “common sense, waste of precious public resources, and restraint in imposing frivolous trials on already overburdened trial courts, cry out for the Supreme Court to reexamine the law.”  (Id. at pp. 950–951, 269 Cal.Rptr. 682.)   Nowhere in the instant record, the briefs, or oral argument was a claim made that appellant's prior convictions were invalid and in fact appellant admitted the truth of these prior convictions in his testimony before the jury.   Certainly were it not for the rule of per se reversal, we would rule that this error was nonprejudicial.

The California rule of per se reversibility is not compelled by Boykin v. Alabama, supra, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, since that case only requires “an affirmative showing that it [the guilty plea] was intelligent and voluntary.”  (Boykin v. Alabama, supra, at p. 242, 89 S.Ct. at p. 1711;  see the discussion in In re Tahl, supra, 1 Cal.3d 122, 130–133, 81 Cal.Rptr. 577, 460 P.2d 449.)   With respect to the admission of prior felony convictions, the United States Supreme Court has made no ruling specifically applying the Boykin standard.

While several circuits of the United States Court of Appeals have applied the Boykin standard to the admission of state prior convictions used to enhance punishment (notably, the Ninth Circuit in Wright v. Craven (9th Cir.1972) 461 F.2d 1109;  see also Government of Virgin Islands v. George (3d Cir.1984) 741 F.2d 643, and Cox v. Hutto (8th Cir.1979) 589 F.2d 394), at least one circuit has refused to employ even a Boykin standard regarding such admissions.  (See Holloway v. Lynaugh (5th Cir.1988) 838 F.2d 792 and Swift v. Lynn (5th Cir.1989) 870 F.2d 1039, 1041–1043, applying a “totality of the circumstances” analysis of the record and citing Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)   And, in the Ninth Circuit, with respect to guilty pleas, the federal Court of Appeals “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․”  (United States v. Pricepaul (9th Cir.1976) 540 F.2d 417, 424.)   That court has specifically noted that the California interpretation of Boykin as announced in the Tahl decision is not required by the federal constitution.  (Ibid.)

Hence, were we not bound to apply the standard of per se reversible error (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937), this court would apply a standard of review which requires prejudice to be shown before we would reverse as to the prior felony convictions which appellant admitted freely and voluntarily during his trial.


The true findings as to the prior convictions are reversed, and the cause is remanded to the trial court for a limited new trial on the truth of the prior conviction allegations and for resentencing.   In all other respects the judgment is affirmed.


1.   Several witnesses testified that they had seen appellant at the Mayfair Hotel on the night of the shooting.   The night desk clerk at the hotel said that he had seen appellant bring a loaded shotgun into the hotel about a week prior to the shooting.

2.   The People argue on appeal that appellant offered no plausible explanation as how someone could have used his rifle, gone into his apartment, put the rifle under the bandstand and gotten out within the few minutes between the shootings and the sealing of the area, while he was in the apartment.   The jury could reasonably have believed, however, that defendant could not be expected to give an explanation for this situation since he stated that he was drunk and asleep at the time this allegedly occurred.

3.   Appellant's testimony on the prior felony convictions was presented at the outset of his direct examination in an obvious effort to lessen the sting of prosecutorial inquiry about the convictions during cross-examination.   Defense counsel elicited the fact that appellant had pled guilty to these two prior convictions and that appellant was “fighting this case” because he was not guilty.   Defense counsel emphasized this point during his argument to the jury.

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

BOREN, Associate Justice.

ASHBY, Acting P.J., and GRIGNON, J., concur.