IN RE: John Keith RILEY on Habeas Corpus. The PEOPLE of the State of California

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

IN RE: John Keith RILEY on Habeas Corpus. The PEOPLE of the State of California, Plaintiff and Appellant, v. John Keith RILEY, Defendant and Respondent.

Cr. 8127, 8181.

Decided: August 10, 1976

Edwin L. Miller, Jr., Dist. Atty., Peter C. Lehman and F. Dale Marriott, Deputy Dist. Attys., for plaintiff and appellant. Appellate Defenders, Inc., by J. Perry Langford, San Diego, for defendant and respondent.

Defendant John Keith Riley was indicted on October 29, 1971. On December 22, 1971 he pleaded guilty to one count of committing lewd and lascivious acts on the body of a child under 14 (Pen.Code § 288). Eight other counts in the indictment were dismissed and the allegation of a prior felony conviction was stricken. On January 18, 1972 Riley was found to be a mentally disordered sex offender and committed. He was returned to the superior court about five months later, the acting director of Atascadero certifying Riley remained dangerous to society and had not benefited from treatment. The superior court recommitted him to the Department of Mental Hygiene. On May 11, 1973 the recommitment was reversed and remanded for further proceedings (4 Crim.No. 5241). On July 5, 1973 he was once again committed and that order was reversed on April 3, 1974 because remittitur had not issued on the preceding appeal (4 Crim.No. 6556).

On January 23, 1975 Riley was returned to the superior court and found no longer to be a mentally disordered sex offender. On February 3, 1975 an order was made nunc pro iunc as of January 31, 1975, suspending the imposition of sentence and granting probation for five years.

On March 28, 1975 Riley filed a petition for writ of habeas corpus asserting he was not advised of his rights enumerated in the Boykin-Tahl decisions. Riley expressly declined to provide evidence of whether he was in fact given Boykin-Tahl rights but stated under penalty of perjury he was not advised his guilty plea would have the effect of compelling him to register as a sex offender (Pen.Code § 290). Judge Robert Conyers, who received the guilty plea, said it is his custom and practice to advise and take waivers of the Boykin-Tahl rights, but he had no independent recollection of Riley's case. The judge could not provide evidence on the question of whether defendant was advised of his registration obligation under Penal Code section 290. Exhibits showing Riley registered under Penal Code section 290 on September 8, 1958 and was notified of the registration requirement on May 18, 1972 were attached to the People's papers filed in opposition to the habeas corpus proceeding.

The record of the proceedings at the time the guilty plea was received has been lost and is not available for inspection.

On April 23, 1975 Judge Ross G. Tharp granted the writ of habeas corpus setting aside the plea previously entered and reinstating the indictment (4 Crim.No. 8127).

On May 14, 1975 a notice of appeal of the order granting the writ was filed by the People. On May 30, 1975 Riley filed a notice of motion under Penal Code section 995 to set aside the indictment because it was not presented to the court “in the presence” of the grand jury as required by Penal Code section 944. When the indictment was presented to the court only ten jurors were present and the law states 12 are required in San Diego County to constitute a quorum.1 On June 16, 1975 Judge Ben W. Hamrick granted the motion to set aside the indictment. The People appeal (4 Crim. No. 8181).

The United States Supreme Court has held it cannot be assumed from a silent record that a guilty plea has been voluntarily made and that the constitutional rights necessarily forfeited by such a plea had been freely and intelligently waived (Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274). This rule requires, as a condition of acceptance of the guilty plea, the record show the defendant has been advised of his constitutional right to trial by jury, the right to confront one's accusers and the privilege against self-incrimination as well as an understanding of the nature and consequence of his plea (Boykin v. Alabama, supra; In re Tahl, 1 Cal.3d 122, 130-131, 81 Cal.Rptr. 577, 460 P.2d 449).

The California Supreme Court has stated:

“… the 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.” (Original included emphasis; In re Tahl, supra, 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 584, 460 P.2d 449, 456.)

The cases have repeatedly held the record is necessary to be sure the “defendant ‘was aware that he had these rights and freely and voluntarily waived the same before his guilty plea was accepted by the court”’ (In re Sutherland, 6 Cal.3d 666, 670, 100 Cal.Rptr. 129, 132, 493 P.2d 857, 860, dealing only with the problem of a defendant's knowledge and waiver of the three constitutional rights to jury trial, confrontation, and against self-incrimination). A silent record is insufficient and I know of no authority dealing with guilty pleas accepted since Boykin-Tahl which states this constitutional protection can be “presumed.” The defendant's right to a full and accurate record to support his contentions on appeal, however, is fundamental (Code Civ.Proc. § 914; Pen.Code § 1181(9); In re David T., 55 Cal.App.3d 798, 127 Cal.Rptr. 729).

There is no reason, however, for the defendant to enjoy the benefits of a “presumption” the record is silent on the compliance with Boykin-Tahl requirements merely from the fact the record is not available for visual examination. Whether the defendant was advised of his rights and this fact is properly reflected by the record is a factual matter for the court after weighing the evidence and drawing inferences available to it (Winton v. Municipal Court, 48 Cal.App.3d 228, 236-238, 121 Cal.Rptr. 561). The court hearing the writ for habeas corpus thus properly received evidence of the judge's practice and custom in giving Boykin-Tahl admonitions and on the content of the record. The burden of proving the fulfillment of these constitutional requirements lies with the People.2

It is not clear from the record below whether the court based its decision on the evidence received or the fact that since there was no record which revealed on its face the Boykin-Tahl admonition had been given as to the three constitutional rights, there was no compliance with Boykin-Tahl. Counsel for Riley does not argue there is an issue as to the giving admonition of the three constitutional rights since the testimony of Judge Conyers was uncontradicted and the court could infer that admonition, establishing both Riley's knowledge and waiver of those rights, was given. Rather, he contends there was no evidence offered at all that Riley was given the admonition advising him of the consequence of his plea that he would be required to register as a sex offender under Penal Code section 290 and Riley affirmatively stated in his petition he received no such admonition. There was no evidence rebutting Riley's declaration in this respect.

I cannot, however, limit my consideration in this way. There was evidence from which the court could infer the admonition had been given on the constitutional rights, but I am concerned by the court's comment in summarizing its conclusion when it made the following statement:

“THE COURT: Well, apparently the decisions place the duty on the Court to give the appropriate admonitions, and as a corollary thereto, presumably, the Court has a duty to see to it that it is clear, and administrative personnel maintain proper records and preserve those records, and if that duty is not discharged—I'm going to rule that the defendant is now found to comply with whatever the requirements were, or that an admonition which is not available to the Court is no admonition; and, the writ of habeas corpus will be granted.”

The last sentence is unintelligible to the extent it speaks of the defendant's compliance with “whatever the requirements were.”3 To the extent this record is intelligible, it is apparent the court did not weigh the evidence as to whether there was in fact an admonition. From all appearances it instead ruled that where the record has been lost by the court and it is impossible to make an examination of the transcript, there was no admonition. We do not perceive this to be the law and the case must be remanded for the factual finding. The uncontradicted evidence is present from which a court could easily infer the admonition was given as to the three constitutional rights specified by Boykin-Tahl but I am reluctant to make that factual determination for the lower court when the record is not clear it did or would do so.

Riley finds more comfort in the argument no evidence was offered relative to the court's advising him registration under Penal Code section 290 would be a direct consequence of a guilty plea. Such an admonition was not required at the time of Riley's plea.

In re Tahl, supra, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, requires the court to advise the defendant of “the consequences of his plea.”

The United States Supreme Court in Boykin was concerned with whether there is a showing in the record the plea is intelligent and voluntary, particularly, if not exclusively, in connection with the three constitutional rights involved in entering a guilty plea. It was in this respect the court ruled the record must show that the trial court made sure the defendant “has a full understanding of what the plea connotes and of its consequence” (Boykin v. Alabama, supra, 395 U.S. 238, 243-244, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274). Similarly focusing on the defendant's understanding, the California Supreme Court in Tahl made reference to “consequences” in a single sentence stating its holding the record must show the defendant “was aware, or made aware, of” the three constitutional rights, the nature of the charge and the consequences of his plea (In re Tahl, supra, 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 584, 460 P.2d 449, 456).

Boykin and Tahl were concerned with a record showing the defendant knew (1) he had the three constitutional rights, and (2) by pleading guilty he understood the consequences of giving up these three known rights. Since the Tahl decision, however, the courts have refined the meaning of “consequences.” The first clear statement of the meaning of the word in California came in the February 1974 case of People v. Searcie, 37 Cal.App.3d 204, 211, 112 Cal.Rptr. 267, where the court modified the apparently unlimited scope of the word and held it meant direct consequences and not those which are collateral to the plea (see also People v. Flores (April 1974), 38 Cal.App.3d 484, 487, 113 Cal.Rptr. 272). Earlier, in October 1973, the California Supreme Court considered a case in which a person charged with a misdemeanor requiring registration as a sex offender (Pen.Code §§ 290, 647(a)) was not represented by counsel and the municipal court record showed no advice or waiver of his right to counsel or notification the plea of guilty would result in the registration (In re Birch, 10 Cal.3d 314, 110 Cal.Rptr. 212, 515 P.2d 12). The court in Birch characterized the registration requirement as a “grave and direct consequence” of his imminent conviction as a result of the guilty plea (In re Birch, supra at 322, 110 Cal.Rptr. 212, 515 P.2d 12). Relying on right to counsel, not Boykin-Tahl principles, the court held that in the absence of counsel to advise a defendant of the consequence the responsibility to do so rested with the court. Since the record contained no evidence suggesting the court gave this advice before taking the plea and since the defendant was not represented by counsel, the guilty plea could not be regarded as knowingly and intelligently made (see In re Yurko, 10 Cal.3d 857, 864, fn. 7, 112 Cal.Rptr. 513, 519 P.2d 561). Thus, Birch's judgment of conviction was vacated with directions to set aside his plea of guilty (In re Birch, supra, 10 Cal.3d 314, 318, 322, 110 Cal.Rptr. 212, 515 P.2d 12).

A distinctly consistent trend of our Supreme Court since In re Tahl has been to apply the Boykin-Tahl rule to other situations only prospectively4 (People v. Gallegos (March 1971), 4 Cal.3d 242, 247-248, 93 Cal.Rptr. 229, 481 P.2d 237, rule on submissions on transcript of preliminary examination that are tantamount to a guilty plea is prospective from date of In re Mosley (Jan. 30, 1970), 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 473; People v. Rizer (May 1971), 5 Cal.3d 35, 38-41, 95 Cal.Rptr. 23, 484 P.2d 1367, prospective ruling of Tahl relates back to date of Boykin June 2, 1969; Mills v. Municipal Court (Oct. 1973), 10 Cal.3d 288, 308-311, 110 Cal.Rptr. 329, 515 P.2d 273, rule applied to municipal court guilty pleas and made applicable only from date of decision, October 25, 1973; In re Yurko (Mar. 1974), supra, 10 Cal.3d 857, 863-866, 112 Cal.Rptr. 513, 519 P.2d 561, rule, including advice of consequences, applied to defendant's admission of prior felony conviction and made prospective from date of decision, March 7, 1974; Bunnell v. Superior Court (Feb. 1975), 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 531 P.2d 1086, rule applied to all submissions on transcript of preliminary examination, including submissions not tantamount to a guilty plea, and made prospective from date the decision became final, March 29, 1975 [[Cal. Rules of Court, Rule 24(a)]).

The requirement of registration (Pen.Code § 290) now has been declared to be a direct consequence of the plea of guilty where Penal Code section 288 is charged. The required admonition, however, was not affirmatively stated to be necessary until Bunnell v. Superior Court (Feb. 1975), supra, 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 531 P.2d 1086, and there the court expressed the rule as applying only prospectively from March 29, 1975. While admittedly only dicta, the Supreme Court in Bunnell said:

“Therefore, although some of our requirements are not constitutionally compelled, we have concluded that effective upon the date on which this opinion becomes final, in all cases in which the defendant seeks to submit his case for decision on the transcript or to plead guilty, the record shall reflect that he has been advised of his right to a jury trial, to confront and cross-examine witnesses, and against self-incrimination. It shall also demonstrate that he understands the nature of the charges. Express waivers of the enumerated constitutional rights shall appear. In cases in which there is to be a submission without a reservation by the defendant of the right to present evidence in his own defense he shall be advised of that right and an express waiver thereof taken. If a defendant does not reserve the right to present additional evidence and does not advise the court that he will contest his guilt in argument to the court, the defendant shall be advised of the probability that the submission will result in a conviction of the offense or offenses charged. In all guilty plea and submission cases the defendant shall be advised of the direct consequences of conviction such as the permissible range of punishment provided by statute, registration requirements, if any (e.g., § 290; Health & Saf. Code, § 11590), and, in appropriate cases the possibility of commitment pursuant to Welfare and Institutions Code, sections 3050, 3051, or 6302.” (Bunnell v. Superior Court, supra, 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 310, 531 P.2d 1086, 1094.)

The only other case closely in point after Boykin-Tahl and before the plea was accepted here (Dec. 1971) is In re Leyva (May 1970), 8 Cal.App.3d 404, 407, 87 Cal.Rptr. 265. It held the defendant's possible commitment as a mentally disordered sex offender was a direct consequence requiring an admonition where a defendant was not represented by counsel (see also In re Birch (Oct. 1973), supra, 10 Cal.3d 314, 322, 110 Cal.Rptr. 212, 515 P.2d 12). There is, of course, no absence of counsel involved in Riley's case. His case, then, is to be distinguished from Leyva and Birch (see In re Yurko, supra, 10 Cal.3d 857, 864, fn. 7, 112 Cal.Rptr. 513, 519 P.2d 561).

Contrary to Riley's contention that Boykin-Tahl requires the admonition as a constitutional mandate and cannot operate prospectively leaving a void period in the application of the Boykin-Tahl rule, this is not unusual in determining what is a “direct consequence” of the plea (see In re Yurko (March 1974), supra, 10 Cal.3d 857, 864, 112 Cal.Rptr. 513, 519 P.2d 561). In Yurko the court held an admonition as to the consequences of admitting prior felony convictions (along with the three constitutional rights) must be given to the defendant before he may be deemed to have properly entered his plea.5 According to the court a failure to advise the defendant of these consequences is error which, if prejudice appears, will require setting aside a finding of the truth of the prior conviction allegation (In re Yurko, supra, 10 Cal.3d 857, 864, 112 Cal.Rptr. 513, 519 P.2d 561). This rule requiring advice of consequences and the rule requiring the admonition of constitutional rights were both expressly declared to have only prospective application (In re Yurko, supra, 10 Cal.3d 857, 865-866, 112 Cal.Rptr. 513, 519 P.2d 561). The sex offender registration consequence is of similar gravity to the consequences flowing from admissions of prior convictions. There is no reason to treat one consequence any differently from another for purposes of determining whether Boykin-Tahl principles applied as of the date of the Boykin decision or at some later time when a court declares the application of those principles to a particular consequence.

As noted, it has been the rule rather than the exception to give only prosective effect to rulings making Boykin-Tahl applicable to situations other than the ordinary guilty plea process involved in those cases. The sex offender registration requirement was not considered as a consequence for purposes of required admonitions until nearly two years after Riley's plea was entered, at the earliest, and then only in the context of a case involving deprivation of the constitutional right to counsel (In re Birch (Oct. 1973), supra, 10 Cal.3d 314, 322, 110 Cal.Rptr. 212, 515 P.2d 12). It was not affirmatively stated that the admonition must be given as to registration until February 1975, and this rule was expressly made prospective only (Bunnell v. Superior Court (Feb. 1975), supra, 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 531 P.2d 1086).

In view of the foregoing I would hold admonition of the sex offender registration requirement was not required on December 22, 1971 when Riley pleaded guilty. The court had no duty to admonish Riley of this consequence.

Additionally, it is significant to note Riley was convicted of a sex offense in 1955 and on September 8, 1958 he registered as a sex offender under the provisions of section 290. I am satisfied there would have been no direct consequence to him in any case since he was already registered under the law. Under this circumstance, a failure to advise him results in no apparent prejudice. Proof of a record showing the court advised Riley registration as a sex offender was a consequence of his guilty plea was not required.

The order of the court below in 4 Crim.No. 8127 allowing the defendant to withdraw his plea should be reversed with directions.

The People have also appealed from the order dismissing the indictment made pursuant to Penal Code section 995 (4 Crim.No. 8181). The order of the court in this regard must be reversed because our opinion reversing the order allowing withdrawal of the guilty plea does not leave the pleadings in a position where a section 995 motion would be available in any case. Where there has been a guilty plea or trial on the merits, the motion under section 995 is not available (see Pen.Code § 996; People v. Quigley, 222 Cal.App.2d 694, 700, 35 Cal.Rptr. 393).

The orders appealed from are reversed with directions to conduct further proceedings to determine whether the Boykin-Tahl admonition relative to the right to a jury trial and to confront one's accusers and the privilege against self-incrimination were in fact given Riley. If it finds they were given, the writ of habeas corpus should be denied and the judgment would then remain in effect.

FOOTNOTES

1.  We take judicial notice San Diego County has a population of less than 4 million and the number of jurors required is specified by Penal Code section 940 which reads as follows: “An indictment cannot be found without concurrence of at least 14 grand jurors in a county in which the required number of members of the grand jury prescribed by Section 888.2 is 23, and at least 12 grand jurors in other counties. When so found it must be endorsed. ‘A true bill,’ and the endorsement must be signed by the foreman of the grand jury.”

2.  The cases cited by the People to the effect the presumption of regularity places the burden on the defendant to show invalidity of proceedings are distinguishable because they deal with construction or procedural rather than fundamental defects and antedate Boykin-Tahl (see In re Martha, 122 Cal.App.2d 654, 265 P.2d 527; In re Bell, 19 Cal.2d 488, 122 P.2d 22).

3.  If the word “Court” is substituted for “defendant” and the word “not” substituted for “now” the sentence would make sense. It would then read: “I am going to rule that the Court is not found to comply with whatever the requirements were, or that an admonition which is not available to the Court is no admonition; …”It is likely this more accurately states the basis of the judge's ruling and the alternative phrase saying that an unavailable admonition is no admonition merely clarifies what was said in the preceding phrase.

4.  The court in In re Yurko, supra, 10 Cal.3d 857, 865, 112 Cal.Rptr. 513, 519 P.2d 561, citing Tahl, explains there are three factors to be considered in determining the applicability of a new rule: (1) the purpose of the new rule, (2) the extent of reliance on the old rule, and (3) the effect of retroactive application on the administration of justice.

5.  “… an accused, prior to the time the court accepts his admission of an allegation of a prior criminal conviction or convictions, is entitled to be advised: (1) that he may thereby be adjudged an habitual criminal pursuant to section 644 if that section is applicable in his case; (2) of the precise increase in the term or terms which might be imposed, if any, in the accused's case pursuant to section 644 or other applicable statutes (see, e. g., §§ 666, 667); and (3) of the effect of any increased term or terms of imprisonment on the accused's eligibility for parole.” (In re Yurko, supra, 10 Cal.3d 857, 864, 112 Cal.Rptr. 513, 517, 519 P.2d 561, 565.)

COLOGNE, Associate Justice.

AULT, Acting P. J., and COUGHLIN, J.,* concur in the opinion by COLOGNE, J.