IN RE: Lavern HAMMOND

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Court of Appeal, Third District, California.

IN RE: Lavern HAMMOND, on habeas corpus.

Cr. 6976.

Decided: July 13, 1973

Michael J. Mathews, Citrus Heights, for petitioner. Evelle J. Younger, Atty. Gen., by Charles P. Just and Gregory W. Baugher, Deputy Attys. Gen., Sacramento, for respondent.

In this habeas corpus proceeding petitioner challenges a December 15, 1971, judgment wherein he was declared to be an habitual criminal under the provisions of section 644 of the Penal Code.

On October 8, 1971, by an amended information in the Sacramento County Superior Court petitioner was charged with five felony counts, namely, Count I, forcible rape (Pen. Code, § 261, subd. 2); Count II, rape by threats (Pen. Code, § 261, subd. 3); and Counts III, IV, and V, burglary (Pen. Code, § 459). The information charged him with three prior felony convictions for the crime of robbery, alleging as to each such conviction that he had served a separate term of imprisonment therefor. The information also charged a prior conviction of the crime of escape in violation of Penal Code section 4532, subdivision (a).

Before trial petitioner pled not guilty to the crimes charged in the information but appeared and personally admitted having suffered the charged prior convictions. On this admission a proper determination of habitual criminality could, upon conviction, be made under the provisions of Penal Code section 644, subdivision (b). His subsequent trial resulted in convictions on the count of rape by threats and on one count of burglary in the first degree.

The federal Supreme Court in Boykin v. Alabama (1969) 395 U.S. 238, 243–244, 89 S.Ct. 1709, 23 L.Ed.2d 274, 279–280, enumerated three constitutional rights involved in any waiver taking place when a guilty plea is entered in a state criminal trial, namely, the privilege against self-incrimination, right to a jury trial and right to confront accusers. Boykin held that a waiver of each of these rights must clearly appear on the record.

The transcript of the proceedings of November 22, 1971, at which the admission of the charged prior convictions was made clearly discloses that none of the advisements and waivers required by Boykin v. Alabama, supra, were given. (In re Tahl (1969) 1 Cal.3d 122, 131–133, 81 Cal.Rptr. 577, 460 P.2d 449; People v. Rizer (1971) 5 Cal.3d 35, 38, 95 Cal.Rptr. 23, 484 P.2d 1367.) The question thus presented is whether or not defendant's admission, entered after Boykin, of charged prior convictions is tantamount to a guilty plea to which the rule expressed in Boykin is applicable. We are persuaded that the answer must be in the affirmative by several considerations.

It is established that the Boykin waivers are required in situations other than those involved in the entry of a plea of guilty. Application of the Boykin requirements has been expanded to include the use of stipulations or admissions which in the circumstances of a particular case are in fact tantamount to a plea of guilty. (In re Mosley (1970) 1 Cal.3d 913, 924–925, 83 Cal.Rptr. 809, 464 P.2d 473 (submission of the case on the transcript of the preliminary examination); People v. Gallegos (1971) 4 Cal.3d 242, 247–249, 93 Cal.Rptr. 229, 481 P.2d 237 (submission of case on transcript of preliminary examination and police and laboratory reports); Brookhart v. Janis (1966) 384 U.S. 1, 5–7, 86 S.Ct. 1245, 16 L.Ed.2d 314, 317–319 (agreement not to contest state's case or cross-examine its witnesses).)

The problem has had previous judicial scrutiny. In Wright v. Craven, D.C., 325 F.Supp. 1253, affirmed in 9 Cir., 461 F.2d 1109, the identical question was presented to the federal trial and appellate courts which answered it with very persuasive reasoning. Although the admission involved in Wright occurred before Boykin and the primary inquiry was a determination of whether the waiver was a “knowing, intelligent act done with sufficient awareness of the relevant circumstances and likely consequences'. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938),' the court analyzed the applicable federal and state law. (325 F.Supp. p. 1257.) It concluded that the admission of prior criminal convictions in a situation similar to those presented to us is, under California law, a ‘functional equivalent of a plea of guilty.’ We quote at length from the Wright opinion (pp. 1256–1257): ‘A finding of habitual criminality has been called an adjudication of status, and not of guilt as to a separate offense. [Citations.]

But the effects on a defendant of such a finding are so drastic that trial of the issues raised by a charge of recidivism has been called an independent proceeding to which most of the incidents of traditional due process apply. The defendant may demand a full ‘judicial hearing’ on the validity of any of the priors charged: he may insist on his right ti representation by counsel; and he must have adequate notice of the State's invocation of its recidivism statutes. [Citations.]

‘An admission of priors is as telling in many ways as any guilty plea. Normally, the State must prove alleged priors beyond a reasonable doubt. [Citation.] There is no such burden as to priors which are admitted. [Citation.] Ordinarily, the State must defend and affirmatively show the validity of those priors which the defendant claims are invalid for constitutional or other reasons. With an admission, validity is no issue, either at trial or on appeal. [Citation.] No with an admission need there be any showing of the nature of the priors (a most significant issue when foreign convictions are alleged) or of the sentences imposed and served. [Citation.] Hence an admission of prior convictions waives a wide range of rights, and may, as here, leave one defenseless against invocation of a statute which carries a mandatory life sentence.

‘California's treatment of an admission of priors as a waiver of various rights places such an admission on a par with pleas of guilty, which if knowingly and voluntarily made are now seen as working a forfeiture of a vast range of rights, procedural and substantive. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). If the plea or admission is valid, it serves to insulate even unconstitutional state action from subsequent review. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) . . ..

‘This Court concludes that an admission of prior convictions in the context of California's habitual criminality statute is the functional equivalent of a plea of guilty to an independent criminal charge.

‘. . .

‘The weighty consequences which the courts now attach to guilty pleas are constitutionally justified only because of the procedural safeguards which have been erected about the taking of such pleas . . .

‘. . .

‘. . . A guilty plea is now seen as an act of tremendous moment, performed by a person fully informed, not only as to his own guilt or innocence, but as to the strength of the case against him, the strategic alternatives open to him, and the sentence which is likely to await him upon conviction. Brady v. United States, . . . 397 U.S. at 748, 90 S.Ct. 1463 . . ..’

The court in Wright fully noted that it was dealing with a pre-Boykin plea and that Boykin is not retroactive, but observed ‘[i]f this were a post-Boykin plea, the Court would have no difficulty . . ..’ (325 F.Supp. p. 1258.) The record herein at no place shows an in-court warning of the recidivism charge and of the penalties attached thereto, or advice of the rights foregone by virtue of admission of the priors.

The response of the Attorney General, insofar as the impact of the Wright holding, is twofold: (1) It is contended that Wright is not controlling since state courts have exclusive jurisdiction to interpret their own statutes in criminal procedures (Brady v. Maryland (1963) 373 U.S. 83, 90, 83 S.Ct. 1194, 10 L.Ed.2d 215, 220; Hernandez v. Schneckloth (9 Cir., 1970) 425 F.2d 89; and (2) Wright does not represent a correct interpretation of California law, and if it did, the law is not applicable to the case before us.

With reference to the first contention, the Attorney General notes that Wright cited no California case as authority for the rule therein expressed. While it is true that the federal appellate opinion does not cite state authorities, it is equally true that the opinion was based upon an analysis of the federal district court which does quote liberally from applicable California law. The first contention must fail.

The Attorney General, secondly, advances the argument that an admission of prior convictions is distinguished from a guilty plea in that in terms of section 644 the recidivist determination cannot be made merely on the basis of an admission of appropriate prior convictions without the additional requirement of a conviction upon the principal crime charged at the trial in which the habituality determination is to be made. Under the Wright rationale, however, this appears to be a distinction without significance since it is the charging of and the finding in regard to the prior convictions that allows section 644 to be operable in the presence of a current conviction.

The other contentions of the Attorney General must fail in the light of the Supreme Court's very recent unanimous holding in People v. Levey (1973) 8 Cal.3d 648, 105 Cal.Rptr. 516, 504 P.2d 452. In Levey defendant was convicted of a narcotics violation after his case was submitted on the transcript of his preliminary examination. Before the submission of the transcript and his stipulation as to its use defendant was advised of and waived his right to a jury trial and his right to confront witnesses. He did not expressly waive his privilege against compulsory self-incrimination. The high court reversed the conviction, citing its earlier holdings in In re Tahl, supra, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449; People v. Rizer, supra, 5 Cal.3d 35, 95 Cal.Rptr. 23, 484 P.2d 1367; and In re Sutherland (1972) 6 Cal.3d 666, 100 Cal.Rptr. 129, 493 P.2d 857. It noted that its earlier holding in In re Mosley, supra, 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 473, required the express waiver of the privilege against self-incrimination in those cases in which defendant's stipulation is ‘tantamount to a plea of guilty.’ In considering the nature of the proceedings, short of an outright admission of guilt, to which the Boykin-Tahl rationale applies, the court used the following significant language (8 Cal.3d at p. 652, 105 Cal.Rptr. at p. 519, 504 P.2d at p. 455): ‘The privilege against self-incrimination is applicable not only to a frank admission of guilt but also to statements which could ‘furnish a link in the chain of evidence needed for conviction.’ (Blau v. United States (1950) 340 U.S. 159, 161, 71 S.Ct. 223, 224, 95 L.Ed. 170 [, 172].) A defendant who by his stipulation permits the prosecution to prove its case without requiring the production of any evidence in court, other that the transcript of a prior hearing, furnishes far dence. It would exalt form over substance if we were to conclude that a defendant who directly admits his guilt is entitled to the full panoply of rights described in Boykin and Tahl but one who indirectly makes the same admission by uttering a statement which is tantamount to a guilty plea is not entitled to the same rights.'

Under the force of the foregoing language, we must conclude that similarly the admission of prior felony convictions constitute ‘far more that a mere link in the chain of evidence.’ Petitioner forfeited his right to compel the state to prove the priors, their validity and their nature. In admitting prior convictions petitioner in the language of Levery, ‘by his stipulation permits the prosecution to prove its case without requiring the production of any evidence in court . . ..’ Controlled as we are by the reasoning of Levery, we find no argument of logic or reason that can distinguish the effect on a defendant flowing from his admission of prior convictions, on the one hand, and the submission of his case on the basis of a preliminary examination, on the other. The Levey reasoning equally sweeps away the contentions of the People that petitioner has failed to allege any irregularity regard to the prior convictions admitted by him, or that petitioner fails to establish that the case against him has merit, or that he would not validly reenter the identical plea held to be invalid. (People v. Howell (1973) 30 Cal.App.3d 228, 237–238, 105 Cal.Rptr. 748.)

We hold the petitioner's admissions of the charged prior convictions constitute ‘the functional equivalent of a plea of guilty to an independent criminal charge’ taken in the absence of the waiver by petitioner of the rights enunciated in Boykin v. Alabama, supra, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Applying, as we do, the reasoning of Wright v. Craven, supra, 325 F.Supp. 1253, we conclude that the petitioner's admission of the prior convictions, viewed as a plea of guilty, was invalid and thus inadequate to support the determination of habitual criminality under Penal Code section 644, subdivision (b). It follows accordingly that petitioner must be allowed to withdraw his admissions of the prior convictions and the case must be remanded to the superior court for a hearing on the validity of the prior convictions, or for the entry of petitioner's plea thereon, accompanied by the waivers required by the Boykin rule.

RICHARDSON, Presiding Justice.

FRIEDMAN, and REGAN, JJ., concur.