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

The PEOPLE, Plaintiff and Respondent, v. Robert Earl FOREMAN, Defendant and Appellant.

Cr. 21918.

Decided: August 27, 1981

Quin Denvir, State Public Defender, George L. Schraer, Deputy State Public Defender, San Francisco, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Martin S. Kaye, Christopher J. Wei, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

On his guilty pleas under a plea bargain defendant Foreman was convicted of kidnapping for the purpose of robbery (Pen.Code, § 209), false imprisonment (Pen.Code, § 236), automobile theft (Veh.Code, § 10851), and 19 counts of robbery (Pen.Code, § 211). Nineteen “use of a firearm” allegations (Pen.Code, §§ 1203.06, 12022.5) of the information had been modified to “armed with a deadly weapon” (Pen.Code, § 12022, subd. (a)) which latter allegations were admitted. Allegations of “great bodily injury” (Pen.Code § 12022.7) and of three prior felony convictions had been stricken.

Foreman's notice of appeal from the judgment expressly states that it is “based solely on grounds occurring or rulings made after the entry” of the guilty pleas. But one of the principal contentions of the appeal is that his guilty pleas themselves were invalid for lack of the expressly recorded waiver of constitutional rights enumerated, and required, by Boykin v. Alabama (1969) 395 U.S. 238, 242-244, 89 S.Ct. 1709, 1711-1712, 23 L.Ed.2d 274.

I. Preliminarily, we pass upon a contention of the People that “the legality of appellant's guilty plea[s] may not be reviewed in the absence of a certificate of probable cause.”

Penal Code section 1237.5, as relevant here, states: “No appeal shall be taken by defendant from a judgment of conviction upon a plea of guilty … except where: (a) the defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings; and (b) The trial court has executed and filed a certificate of probable cause for such appeal with the county clerk.”

In implementation of the above-noted provisions of section 1237.5, rule 31(d) of the California Rules of Court provides that: “If the appeal from a judgment of conviction entered upon a plea of guilty … is based solely upon grounds … occurring after entry of such plea which do not challenge the validity of the plea …, the provisions of section 1237.5 of the Penal Code requiring a statement by the defendant and a certificate of probable cause by the trial court are inapplicable, …” (Emphasis added.)

Foreman had unsuccessfully applied to the trial court for a certificate of probable cause. It therefore appears, from the above-noted statute and rule of court, that Foreman's attack on “the validity of the plea[s],” because of claimed Boykin error committed during the proceedings on the guilty pleas but before their entry, should not be reviewed by us. If that were so, then Foreman would be denied a right to appeal on his claim of fundamental constitutional error, and relegated instead to the speculative discretionary remedy of an extraordinary writ application (see 5 Witkin, Cal. Procedure (2d ed. 1971) Extraordinary Writs, §§ 123-125, pp. 3900-3903) seeking a certificate of probable cause.

The problem of an accused's right to appeal Boykin error in the taking of a plea has been a perplexing one. Reviewing courts are understandably reluctant to deny consideration of such an important issue on its merits. Some have avoided the effect of section 1237.5 and rule 31(d) by treating such an appeal, “in the interest of judicial economy,” “as a petition for writ of habeas corpus” (People v. Vest (1974) 43 Cal.App.3d 728, 731-732, 118 Cal.Rptr. 84; People v. McMillan (1971) 15 Cal.App.3d 576, 578-579, 93 Cal.Rptr. 296), or as reviewable because of “the strong policy favoring disposition of appeals on the merits” (People v. Wagoner (1979) 89 Cal.App.3d 605, 610, 152 Cal.Rptr. 639), or, “in order to prevent further waste of time, effort and money,” as a petition for mandate (People v. Nigro (1974) 39 Cal.App.3d 506, 511, 114 Cal.Rptr. 213). However, more often the appeal appears simply to have been processed, and the point ignored. (See, e. g., People v. Soldoff (1980) 112 Cal.App.3d 1, 10, 169 Cal.Rptr. 57; People v. Gaskill (1980) 110 Cal.App.3d 1, 4-5, 167 Cal.Rptr. 549; In re Gary O. (1978) 84 Cal.App.3d 38, 41-42, 148 Cal.Rptr. 276; People v. Johnson (1977) 66 Cal.App.3d 197, 135 Cal.Rptr. 756, passim; People v. Tabucchi (1976) 64 Cal.App.3d 133, 142-143, 134 Cal.Rptr. 245.)

We first observe that the above-noted section 1237.5 and rule 31(d), with which we are here concerned, were originally enacted prior to announcement of the Boykin rule, at a time when error seldom, if ever, attended the taking and entry of a guilty plea. The purpose of the statute was “merely” to screen out “frivolous claims” which had been waived by the guilty plea, from the “issues which have not been waived” such as defective sentencing proceedings following the guilty plea. (See People v. Kaanehe (1977) 19 Cal.3d 1, 9, 136 Cal.Rptr. 409, 559 P.2d 1028; In re Brown (1973) 9 Cal.3d 679, 683, 108 Cal.Rptr. 801, 511 P.2d 1153.)

The question presented is whether we are bound to the literal meaning of section 1237.5 and rule 31(d), or whether those directives may be construed as proposed only to screen out “frivolous claims” such as are rationally deemed waived by a guilty plea.

Initially we observe that it may not reasonably be said that an arguable (as here) contention of Boykin error is a “frivolous claim.”

It has long been the rule that: ““‘The mere literal construction of a section in a statute ought not to prevail if it is opposed to the intention of the legislature apparent by the statute; and if the words are sufficiently flexible to admit of some other construction it is to be adopted to effectuate that intention. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.””’ (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259, 104 Cal.Rptr. 761, 502 P.2d 1049.) This principle was manifestly followed by our high court when, in reference to section 1237.5 and rule 31(d), it declared: “Other than search and seizure issues which are specifically made reviewable by section 1538.5, subdivision (m), all errors arising prior to entry of a guilty plea are waived, except those which question the jurisdiction or legality of the proceedings resulting in the plea.” (People v. Kaanehe, supra, 19 Cal.3d 1, 9, 136 Cal.Rptr. 409, 559 P.2d 1028; emphasis added.)

Here the Boykin issue raised by Foreman expressly concerns the “legality of the proceedings” resulting in his guilty pleas. We therefore hold that Boykin error may be urged by a defendant upon his appeal (without a certificate of probable cause) from a judgment of conviction based upon his plea of guilty.

We proceed to our consideration of the several appellate contentions raised by Foreman. We state them as phrased by him.

II. Contention: “The record does not contain an express waiver of rights.”

The rights referred to are, as indicated, those announced, or confirmed, by Boykin v. Alabama, supra, 395 U.S. 238, 242-244, 89 S.Ct. 1709, 1711-1712, 23 L.Ed.2d 274: “First, is the privilege against compulsory self-incrimination ․ Second, is the right to trial by jury․ Third, is the right to confront one's accusers.” (Id. p. 243, 89 S.Ct. at p. 1712.) To the same effect, see In re Tahl (1969) 1 Cal.3d 122, 130, 81 Cal.Rptr. 577, 460 P.2d 449.

Foreman's instant contention, as we understand it, is that for his guilty pleas to be valid he must himself have expressly and vocally stated that he waived each of those rights. It is not enough, he says, that the rights were fully explained to him and that with such knowledge his guilty pleas were intelligent and voluntary.

Disagreeing, the People argue that where the accused is made aware of the pertinent constitutional rights and thereafter pleads guilty, the demands of Boykin and Tahl are met. It is not necessary, they insist, that he vocally state, as to each of the rights, that he “waives it.”

Boykin holds that upon a defendant's guilty plea the record must establish “an affirmative showing that it was intelligent and voluntary” (395 U.S. p. 242, 89 S.Ct. at p. 1711; emphasis added); nowhere does it require the defendant's personal vocalization of a “waiver” of the related constitutional rights.

Elaborating the Boykin rule, the state's high court in In re Tahl, supra, 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 460 P.2d 449, stated: “This does not require the recitation of a formula by rote or the spelling out of every detail by the trial court. It does mean that 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. Each must be enumerated and responses elicited from the person of the defendant. Because mere inference is no longer sufficient, the presence of an attorney cannot alone satisfy these requirements; as noted, the defendant in Boykin was represented by counsel.” (Some emphasis added.) Emphasizing the need that the accused be “aware, or made aware” of the stated constitutional rights, the court observed (p. 133, 81 Cal.Rptr. 577, 460 P.2d 449), “it is salutary for the court … to explain the full import of his guilty plea to the accused.”

Interpreting Boykin and Tahl, California's Supreme Court has left “no doubt that to establish a defendant was advised of and waived his constitutional rights in pleading guilty there must be a specific and express showing on the face of the record that the rights were made known to and waived by him, and that mere inference, no matter now plausibly drawn from the evidence, does not suffice.” (People v. Levey (1973) 8 Cal.3d 648, 653, 105 Cal.Rptr. 516, 504 P.2d 452; and see In re Sutherland (1972) 6 Cal.3d 666, 100 Cal.Rptr. 129, 493 P.2d 857, passim; People v. Rizer (1971) 5 Cal.3d 35, 95 Cal.Rptr. 23, 484 P.2d 1367, passim; In re Tahl, supra, 1 Cal.3d 122, 124-135, 81 Cal.Rptr. 577, 460 P.2d 449.)

The rationale was reiterated by the high court in In re Ronald E. (1977) 19 Cal.3d 315, 320, 137 Cal.Rptr. 781, 562 P.2d 684: “‘[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.”’ (Some emphasis added.)

(Foreman makes no contention, nor could he reasonably do so, that the record does not contain direct evidence that he “was aware, or made aware” of “the nature of the charge and the consequences of his plea.”)

Lesser reviewing courts of California, where there was no express vocalized waiver by the defendant upon a Boykin inquiry, have concluded that: “The recitation suffices if it communicates to the defendant the essential character of the constitutional privileges in lay language, provided the message does not require resort to inference.”' (People v. Johnson (1978) 77 Cal.App.3d 866, 876, 143 Cal.Rptr. 852.) And where, following proper enumeration of each of the rights, the defendant was asked —“Do you understand this right?” and responded “Yes”—his guilty plea was found valid, despite lack of express vocalization or response that he “waived” each of them. The court said: “The pivotal issue on this phase of the case at bench is whether the docket entries recorded in the clerk's handwriting as yes or no answers to specific questions constitute an express and explicit waiver by appellant. We hold that they do. It is clear that a waiver of constitutional rights may not be implied from entry of a guilty plea … or implied from the conduct of a defendant ․ However, it seems clear that responses of ‘yes' or ‘no’ from the appellant's own mouth are express and explicit answers.” (Ganyo v. Municipal Court (1978) 80 Cal.App.3d 522, 529, 145 Cal.Rptr. 636.)

We advert now to the Boykin inquiry of the case before us.

The proceedings on Foreman's guilty pleas were lengthy, and patently extemporaneous. The court and counsel were aware of Boykin's requirements and manifestly endeavored to comply with them. We select and quote from those portions of the record which directly concern the instant issue (the emphasis is added).

Bearing upon the right of confrontation, we observe the following: “[Defense Counsel:] Now, at the trial you would be entitled to see the witnesses testify from the witness stand or any item of evidence presented in open court. That's a right you have at trial, right, and you have read the preliminary hearing transcript; you have seen a number of the witnesses testify in front of you so you have some idea what it means for a witness to testify in court and be cross-examined by the lawyer, is that true? [Foreman:] Yes. [Defense Counsel:] But if you plead guilty, none of that is going to happen. [Foreman:] Right.” (Emphasis added.)

And as to the right to a jury trial and the privilege against self-incrimination, the record reveals the following dialogue: “[Defense Counsel:] Now, you understand you have a right to have a jury trial on these issues if you want to. The D.A. would have to prove his case beyond a reasonable doubt. None of that is going to happen if you plead guilty. He won't have a jury trial and you—you have the right to be silent and not to incriminate yourself and you can see by the nature of what you're doing here today, you have gotten into a little bit of incrimination. You have made a few statements and by pleading guilty, you are admitting that you did all these things. [Foreman:] Yes, I did.” (Emphasis added.)

Immediately thereafter, Foreman entered his pleas of guilty. And we note that otherwise he had indicated an intelligent awareness of the nature of the proceedings.

Under the above authority it becomes manifest that there was “a specific and express showing on the face of the record that [Foreman's] rights were made known to and [by his intelligent guilty pleas] waived by him, …” (People v. Levey, supra, 8 Cal.3d 648, 653, 105 Cal.Rptr. 516, 504 P.2d 452.) So also was there “an affirmative showing that [the guilty pleas were] intelligent and voluntary.” (Boykin v. Alabama, supra, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274.)

However, at this point it seems proper to restate, for the benefit of trial courts and counsel, some of In re Tahl's words of warning: “[I]n proceedings related to a formal plea, at which time the court is required at a minimum to ascertain whether the plea is knowingly made without threat or inducement, it is salutary for the court at the same time to explain the full import of his guilty plea to the accused. Something short of this procedure may, in a proper context, be held sufficient; on that we need not rule today. However, in this post-Boykin milieu courts and prosecutors are forewarned and will be well advised to avoid any such uncertainty and to produce for the record the required information.” (1 Cal.3d p. 133, 81 Cal.Rptr. 577, 460 P.2d 449; fn. omitted.) To this we add the suggestion that, although as here sometimes unnecessary and not constitutionally required, courts and counsel would be well advised in cases such as this to secure express vocalized waivers from the accused and, further, not to trust to counsel's memory, or extemporization, such an important matter as a Boykin inquiry.

The instant contention is found invalid.

III. Contention: “The appellant should have been advised that by pleading guilty he was waiving his right to raise various issues on appeal.”

We are advised of no authority requiring the trial court to advise a defendant that by pleading guilty he was waiving his right to an appeal based upon a claim of error antedating the proceedings on his plea. Rule 250, California Rules of Court, requires advisement only of the right of appeal “upon conviction after trial, or after imposing sentence following a revocation of probation, …” And we note that in People v. Watts (1977) 67 Cal.App.3d 173, 184, 136 Cal.Rptr. 496, the court expressly rejected a defendant's contention of error in the trial court's failure “to explain to him the effect of a guilty plea on his appeal rights, …” In the case at bench the only claim of error antedating Foreman's guilty pleas made known to us, is that discussed in part II above; as to that contention he has been allowed such an appeal. “Anyone who seeks on appeal to predicate a reversal of conviction on error must show that it was prejudicial.” (People v. Archerd (1970) 3 Cal.3d 615, 643, 91 Cal.Rptr. 397, 477 P.2d 421.) Nor is anything seen in People v. Lee (1980) 100 Cal.App.3d 715, 161 Cal.Rptr. 162; People v. Coleman (1977) 72 Cal.App.3d 287, 139 Cal.Rptr. 908, or People v. Brown (1971) 18 Cal.App.3d 1052, 96 Cal.Rptr. 476, of aid to Foreman on his instant contention.

Again, no error is seen.

IV. Contention: “The appellant should serve no more than one-third of the middle base term for count five.”

(On this contention we are concerned with statutes as in effect March and April of 1980 when Foreman's several crimes were committed. Such reference as we here make to them will be as they were then in effect.)

The trial court fixed the sentence on Foreman's count five robbery conviction (with a one-year enhancement) at six years. It was a determinate sentence. (See Pen.Code, § 213.) On his count eleven conviction of kidnaping for the purpose of robbery he was sentenced to a term of life imprisonment with possibility of parole, an indeterminate sentence. (See Pen.Code, § 209, subd. (b); In re Jeanice D. (1980) 28 Cal.3d 210, 222-224, 168 Cal.Rptr. 455, 617 P.2d 1087.) The court decided that the two terms should run consecutively. It fixed the count five determinate sentence for robbery as the principal term, and the count eleven indeterminate sentence as the subordinate term to run consecutive to the principal term.

Foreman argues that the trial court, under Penal Code section 1170.1, should have fixed his indeterminate life imprisonment term (count eleven) as his principal term and as the first to be served, and his determinate six-year robbery sentence as subordinate, on which he need serve but one-third of the middle term, as in that case fixed by the statute.

The argument is invalid, for Penal Code section 669 provided: “[L]ife sentences, whether with or without the possibility of parole, may be imposed to run consecutively with one another or with any other term of imprisonment for a felony conviction. Whenever a person is committed to prison on a life sentence which is ordered to run consecutive to any determinate term of imprisonment imposed pursuant to [section 1170.1], the determinate term of imprisonment shall be served first․” (Emphasis added.)

Penal Code section 1168 provided: “… (b) For any person not sentenced under [the Determinate Sentence Law, which included § 1170.1], but who is sentenced to be imprisoned in the state prison [for an indeterminate term], the court imposing the sentence shall not fix the term or duration of the period of imprisonment.”

We also take note of Penal Code section 3046's provisions that “No prisoner imprisoned under a life sentence may be paroled until he has served at least seven calendar years. Where two or more life sentences are ordered to run consecutively to each other pursuant to Section 669, no prisoner so imprisoned may be paroled until he has served at least seven calendar years on each of the life sentences which are ordered to run consecutively․” From this statute, amended contemporaneously with enactment of the Determinate Sentence Law, we discern a legislative, and thus a public, policy that a person whose indeterminate life sentence is ordered to run consecutively with another term of imprisonment shall not have the benefit of a two-thirds time reduction of the latter term, as otherwise permitted by section 1170.1.

To the same general effect see rule 451(a), California Rules of Court, and advisory committee comment thereto (Deering's and West's Ann. Codes).

In People v. Grimble (1981) 116 Cal.App.3d 678, 684-685, 172 Cal.Rptr. 362 (hg. den.), the court, passing upon an argument such as is here made by Foreman, stated: “We construe Penal Code section 669 to mean that whenever a person is sentenced to prison on a life sentence and any other term of imprisonment for a felony conviction, and the sentences are to run consecutively, the sentence must provide that the determinate term of imprisonment shall be served first and the life sentence shall be consecutive to the determinate term, and not vice versa. Since the sentence imposed on January 22 made the determinate terms consecutive to the life term, the sentence imposed was directly contrary to the provisions of section 669.” (Emphasis added.)

And in the recent case of People v. Day (1981) 117 Cal.App.3d 932, 173 Cal.Rptr. 9 (hg.den.), the defendant contended substantially as Foreman does here. The court stated (pp. 936-937, 173 Cal.Rptr. 9): “Day … contends the imposition of the five-year upper term to run consecutive to the indeterminate sentence of twenty-five years to life was improper. Day argues the term for count three should have been treated as a subordinate term resulting in a sentence of one-third of the middle term of three years, thus a consecutive term of one year only. He reaches this conclusion by interpreting the legislative intent of the pertinent sentencing statutes to mean that a determinate sentence that is made consecutive to an indeterminate sentence must be computed the same as consecutive determinate sentences, i. e., one-third of the middle term. [¶] The Legislative has clearly distinguished indeterminate life sentences and determinate sentences under Penal Code sections 1170 and 1170.1 and provides that the determinate sentence be served first under Penal Code section 669. However, there is no provision designating one term as principal and the other a subordinate term. The legislative intent to treat the term as independent is clear. Penal Code section 1168, subdivision (b), provides that the court imposing the sentence shall not fix the term or duration for a period of imprisonment. Penal Code section 669 distinguishes life terms from any determinate term of imprisonment imposed pursuant to sections 1170 and 1170.1. [¶] The legislative intent is further spelled out in California Rules of Court, rule 451: …” (Latter emphasis added.)

V. Contention: “The trial court failed to state reasons for imposing a consecutive term for count five.”

The statement of the contention is correct.

Rule 425, California Rules of Court, provides: “Criteria affecting the decision to impose consecutive rather than concurrent sentences include: (a) Facts relating to the crimes, including whether or not: (1) The crimes and their objectives were predominantly independent of each other. (2) The crimes involved separate acts of violence or threats of violence. (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. (4) Any of the crimes involved multiple victims. (5) The convictions for which sentences are to be imposed are numerous. (b) Any circumstances in aggravation or mitigation.”

The first five of the rule's criteria were abundantly present here. Additionally, the court found Foreman to be a heroin addict who had failed in rehabilitative efforts; that his crimes, planned with a degree of professionalism, had been of increasing seriousness; and that he was patently a danger to society. The sixth criterion (subd. (b)) was thus also satisfied.

The trial court should, of course, state its reasons for imposing consecutive sentences. (See Pen.Code, § 1170, subd. (c); People v. Walker (1978) 83 Cal.App.3d 619, 622, 148 Cal.Rptr. 66). But the reason for the rule is to permit a meaningful review of the court's exercise of sentencing discretion. Where the reasons for imposition of consecutive terms are evident from the record, a failure to recite them in detail will not be held prejudicial error. As said in People v. Blessing (1979) 94 Cal.App.3d 835, 838-839, 155 Cal.Rptr. 780: “Our ability to review the decision here is not impaired by the failure of the trial court to make reference to the above rule [425, Cal.Rules of Court]. Conversely, a simple recital of the applicable criteria would not have served any useful purpose. [¶] We are unwilling to engage in idle gestures or reach ridiculous results by slavish adherence to ritualistic form. A brief glance at the record shows that defendant's crimes met every criteria listed in the rule and there is a total absence of any mitigating circumstances.” We apply this rationale here, and find no prejudicial error.

VI. Contention: “The abstracts of judgment must be corrected to strike the findings that the appellant inflicted great bodily injury.”

The Attorney General agrees “that under the plea bargain agreement the great bodily injury allegations in counts eleven, twelve, and twenty-two were to be dismissed” and that the abstract of judgment should be corrected accordingly. We shall so order.

The judgment is modified by striking therefrom the recitals that in the perpetration of the crimes charged in counts eleven, twelve and twenty-two, defendant intended to, or did, inflict great bodily injury. As so modified the judgment is affirmed.

ELKINGTON, Acting Presiding Justice.

NEWSOM and GRODIN, JJ., concur. Rehearing denied; GRODIN, J., dissenting.