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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Appellant, v. Ronald SILVEIRA, Defendant and Respondent.

No. H007026.

Decided: July 23, 1991

John K. Van De Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Herbert F. Wilkinson, Supervising Deputy Atty. Gen., Jeremy Friedlander, Deputy Atty. Gen., San Francisco, for plaintiff and appellant. Arthur Dudley, under appointment by the Court of Appeal, Page & Coben, Santa Cruz, for defendant and respondent.

Pursuant to Penal Code section 1238, subdivision (a)(10), the People appeal from the trial court's order striking allegations that defendant Ronald Silveira suffered prior convictions based upon guilty pleas stemming from offenses that occurred on December 15, 1984, and April 3, 1985.   The sole issue before this court is whether the trial court properly granted defendant's motion to strike on the basis of alleged Boykin–Tahl (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) violations.   For the reasons stated below, we affirm.

The facts of the underlying charges in this appeal are not in issue and need not be recited here;  the procedural history of the case is set forth below.

Defendant was charged by information CR 2980 with violating four provisions of the Vehicle Code on October 20, 1989:  driving under the influence of alcohol, a felony (§ 23152, subd. (a)) 1 ;  driving with a blood alcohol level greater than 0.10 percent, a felony (§ 23152, subd. (b)) 2 ;  driving with a revoked or suspended license (§ 14601.2);  and failure to maintain financial responsibility forms (§ 16020).   As to each section 23152 charge, the information alleged four section 23152 prior convictions, for offenses committed on March 13, 1983, August 13, 1984, December 15, 1984, and April 3, 1985.   In conjunction with the section 14601.2 charge, the information alleged three prior convictions for the same offense which occurred on December 15, 1984, April 3, 1985, and October 21, 1986.   Defendant moved to strike the section 23152 and 14601.2 prior convictions which applied to the December 15, 1984, and April 3, 1985, offenses on the ground that they were the result of guilty pleas in which “the trial court did not obtain a complete, knowing, understanding and intelligent waiver of defendant's constitutional rights.”

After the trial court granted the motion to strike the challenged prior conviction allegations in CR 2980, information CR 3232 was filed against defendant charging him with committing three additional Vehicle Code violations on February 3, 1990.   It charged defendant with driving under the influence of alcohol, a felony (§ 23152, subd. (a)) and with driving with a blood alcohol level greater than 0.08 percent, a felony (§ 23512, subd. (b)).  As to those two counts, the information alleged the same section 23152 prior convictions alleged in the earlier information.3  The information also charged an additional section 14601.2 violation and the October 1986 prior conviction alleged in the earlier information.

After the December 15, 1984, and April 3, 1985, priors were also stricken in CR 3232, the section 23152, subdivision (a) counts in both cases were amended to charge misdemeanors.   Defendant then pleaded no contest to a violation of section 23152, subdivision (a) and to a violation of section 14601.2 in both CR 2980 and CR 3232 and admitted the truth of the prior convictions as ultimately alleged.   The court placed defendant on probation for five years upon condition inter alia that he serve twenty-four months in county jail.


The People concede the lack of on-the-record express waivers as to the right to jury trial and the right of confrontation but contend that defendant's “failure to expressly waive [his] rights before pleading guilty does not render the subsequent guilty plea invalid on collateral attack when, as here, [the trial] court finds that the defendant understood his rights and that he knew he was waiving them by pleading guilty.”   We find the People's contention without merit.

The procedural steps to be followed in resolving a motion to strike a prior conviction for driving under the influence and driving on a suspended or revoked license are set forth in section 41403, which provides in relevant part as follows:

“(a) In any proceedings to have a judgment of conviction of a violation of Section 14601, 14601.1, 14601.2, 23152, or 23153, or Section 23103 as specified in Section 23103.5, which was entered in a separate proceeding, declared invalid on constitutional grounds, the defendant shall state in writing and with specificity wherein the defendant was deprived of the defendant's constitutional rights, which statement shall be filed with the clerk of the court and a copy served on the court that rendered that judgment and on the prosecuting attorney in the present proceedings at least five court days prior to the hearing thereon.  [¶] (b) Except as provided in subdivision (c), the court shall, prior to the trial of any pending criminal action against the defendant wherein the separate conviction is charged as such, hold a hearing, outside of the presence of the jury, in order to determine the constitutional validity of the charged separate conviction issue.   At the hearing the procedure, the burden of proof, and the burden of producing evidence shall be as follows:  [¶] (1) The burden of proof remains with the prosecution throughout and is that of beyond a reasonable doubt.  [¶] (2) The prosecution shall initially have the burden of producing evidence of the separate conviction sufficient to justify a finding that the defendant has suffered that separate conviction.  [¶] (3) After the production of evidence required by paragraph (2), the defendant then has the burden of producing evidence that the defendant's constitutional rights were infringed in the separate proceeding at issue.   If the separate conviction sought to be invalidated is based upon a plea of guilty or nolo contendere, the defendant shall provide the court with evidence of the prior plea, including the court docket, written waivers of constitutional rights executed by the defendant, and transcripts of the relevant court proceedings at the time of the entry of the defendant's plea.   These records shall be provided to the defendant without cost to him or her, when the defendant is represented by the public defender or counsel appointed pursuant to Section 987.2 of the Penal Code.  [¶] (4) If the defendant bears this burden successfully, the prosecution shall have the right to produce evidence in rebuttal.  [¶] (5) The court shall make a finding on the basis of the evidence thus produced and shall strike from the accusatory pleading any separate conviction found to be constitutionally invalid.”

Pursuant to the statutory requirements set forth above, defendant produced evidence that his constitutional Boykin–Tahl rights were infringed in the separate proceeding at issue.   The record of the pleas taken in the December 15, 1984, and April 3, 1985, prior convictions establishes that the trial court never obtained defendant's express waiver of his right to jury trial or his right of confrontation as required by Boykin and Tahl.   Before entering the pleas which are the subject of this appeal, defendant and the court engaged in the following dialogue:

“THE COURT:  Do you understand the rights that you have?  [¶] THE DEFENDANT:  Yes, I do.  [¶] THE COURT:  You're not giving up your right to counsel.   You have that right whether you can afford it or not.   Do you understand that?  [¶] THE DEFENDANT:  Yes, I do.  [¶] THE COURT:  You have a right to a jury trial, do you understand that?  [¶] THE DEFENDANT:  Yes.  [¶] THE COURT:  You have the right to confront and cross-examine those who testify against you in that trial.  [¶] THE DEFENDANT:  Yes.  [¶] THE COURT:  You have the right to put on a defense of your own, to use the Court's subpoena power for that purpose.  [¶] THE DEFENDANT:  No, I don't—or I do.   I'm sorry.  [¶] THE COURT:  When you plead guilty to these charges or admit the prior conviction you incriminate yourself.   You don't have to do that.   Do you give up your privilege against self-incrimination?  [¶] THE DEFENDANT:  Yes, I do.”

The requirement of express constitutional advisements and waivers for admission of prior convictions was announced in In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561.   As discussed at length in People v. Ray (1990) 220 Cal.App.3d 943, 269 Cal.Rptr. 682, the holding in Yurko derived from the parallel requirements for a valid guilty plea, enunciated in Boykin and elaborated in Tahl.   The court in Ray reviewed Boykin 's holding that “[a] knowing waiver of the basic trial rights foreclosed by the plea—self-incrimination, jury trial, and confrontation—cannot be presumed from a silent record [and that] [w]ithout a showing on the record, the plea would be considered involuntary.  [Citation.]”  (Id., at p. 946, 269 Cal.Rptr. 682.)   The Ray court explained that “[i]n Tahl our high court clarified the mandate of Boykin, expressly requiring that the record show a pleading defendant was made aware of each of the fundamental trial rights being forfeited.  [Citation.]   No harmless error analysis was suggested.”  (Ibid.)  In Tahl, the court specifically required that “each of the three rights mentioned [in Boykin ]—self-incrimination, confrontation, and jury trial—must be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his guilty plea.”  (In re Tahl, supra, 1 Cal.3d at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449, emphasis added.)

In People v. Sumstine (1984) 36 Cal.3d 909, 206 Cal.Rptr. 707, 687 P.2d 904, the court held that a defendant whose sentence could be enhanced because he suffered a prior conviction may collaterally attack the validity of that conviction by moving to strike on the ground of a Boykin–Tahl violation.   In so holding, the court recognized that “[t]he purpose of a motion to strike is to challenge only the present effect of the prior conviction [and] [a]s the state is the party proposing to assert the effect of the prior conviction at the current trial, the state should also be prepared to face challenges to it [fn. omitted].”  (Id., at 921, 206 Cal.Rptr. 707, 687 P.2d 904.)   The defendant in Sumstine, unlike the defendant here, was left with an incomplete record of his prior conviction because the reporter's notes “no longer exist[ed].”  (Ibid.)   Defendant's claim that his Boykin–Tahl rights were violated based upon a missing and therefore silent record was denied because the court felt that a “defendant is not unduly burdened by a demand that he now allege actual denial of his [Boykin–Tahl ] rights rather than rely on mere silence of the record [fn. omitted].”  (Id., 36 Cal.3d at p. 923, 206 Cal.Rptr. 707, 687 P.2d 904.)   In that context, the court concluded that when a defendant is collaterally attacking the judgment on Boykin–Tahl grounds, “it is not enough for him to allege that the record of his prior conviction is silent regarding those rights.   He must affirmatively allege that at the time of his prior conviction he did not know of, or did not intelligently waive, such rights.”  (Id., at p. 914, 206 Cal.Rptr. 707, 687 P.2d 904, emphasis added.)   The court then added that “this does not end the matter:  once such an allegation is made, the court must hold an evidentiary hearing of the type set forth in People v. Coffey (1967) 67 Cal.2d 204 [60 Cal.Rptr. 457, 430 P.2d 15] [parallel citation], to determine the truth of the allegation.”  (Ibid.)

 The People's claim that when “[r]ead together, Boykin, Tahl, and Sumstine establish ․ [that] the validity of a guilty plea on direct appeal does not turn on an explicit waiver of rights but only upon an explicit understanding of those rights when the defendant waives them by pleading guilty” (italics in original) is unsupported by the trilogy of cases upon which they rely.   As noted above, Boykin, Tahl, and Sumstine together stand for the proposition that a defendant's motion to strike a prior conviction must be granted if he can prove the truth of his allegation that he actually did not waive his Boykin–Tahl rights prior to entering his plea on that prior conviction.

 Defendant here was able to prove the truth of his allegation that his Boykin–Tahl constitutional rights had been infringed by introducing into evidence the complete record of the reporter's notes from the prior proceeding.   Defendant met his initial burden of alleging and establishing a Boykin–Tahl violation and of producing evidence “that [his] constitutional [Boykin–Tahl ] rights were infringed in the separate proceeding at issue.”  (§ 41403, subd. (b)(3).)

 Nevertheless, the People, relying upon Sumstine 's and Coffey 's requirement for an evidentiary hearing to establish the truth of defendant's Boykin–Tahl violation allegation, contend that, even when the defendant has produced such evidence on an actual Boykin–Tahl violation, “a collateral attack on a guilty plea must fail if a court finds that the defendant understood his rights and the implications of his plea when he pleaded guilty.”

In that regard, the People claim that the motion to strike the prior convictions should have been denied here, because, after the defense presented the above-quoted transcript in conjunction with its motion to strike the prior convictions, the prosecution presented evidence of at least two occasions on which defendant did expressly waive his three fundamental constitutional trial rights before pleading guilty or no contest to a charge, evidence which they claim proved that defendant “did in fact understand his rights” and therefore was sufficient to rebut defendant's claim that his constitutional rights were infringed.4

The judge who ruled on the motions to strike was the same judge who had earlier taken the underlying pleas being challenged.   He noted that “[w]ithin the record before me is one of [my] perfect pleas” and one by Commissioner Watts from occasions prior to the defective pleas in which defendant entered pleas “to identical charges and received a full advisement of his rights, and waived those rights.”   In discussing the occasion on which the challenged pleas were taken, the judge commented that “Mr. Silveira in my opinion knows his rights, and knew his rights on that occasion, as well as I did, and also knows the pratfalls [sic ] of my being a human being, if that be the case.”

At the hearing to reconsider the motion to strike, the judge reiterated his belief that “everyone in the courtroom that is familiar with what took place, including your client[,] knows exactly what his rights were.”   He went on, “We actually have a record here, a history before me, of prior admonitions by me, prior pleas by your client to where undeniably he knew exactly what his rights were․”

After reviewing the statute in question and statements of several courts on the question, we are convinced that the trial court correctly found that the rebuttal evidence proffered by the prosecution did not establish beyond a reasonable doubt that the prior convictions were constitutionally valid, which was clearly the prosecution's unique burden in proving the validity of a prior conviction under section 41403, subdivisions (b)(1) and (b)(5).5

The court in People v. Rizer (1971) 5 Cal.3d 35, 42, 95 Cal.Rptr. 23, 484 P.2d 1367, refused to consider the fact that the defendant was a man of intelligence who had a prior conviction and had discussed his change of plea with his attorney, noting that Boykin necessitates “a more precise showing than mere inference, no matter how plausibly drawn from the evidence, i.e., a specific and express enumeration and waiver by the accused of the three constitutional rights surrendered by a guilty plea [citation].”  Similarly, in People v. Ray, supra, 220 Cal.App.3d at p. 949, 269 Cal.Rptr. 682, the court refused to “speculate that a particular defendant was aware of a right because of his experience with the criminal justice process․”

We are convinced that, instead of the type of evidence of prior experience with the criminal justice process which was produced in this case, the prosecutorial rebuttal evidence contemplated in Sumstine, Coffey, and subdivision (b)(4) of section 41403, is evidence which could clarify an ambiguous or incomplete record.   The court in Sumstine emphasized that, in order to prevent lengthy interruptions in a trial to procure witnesses and other evidence relevant to a Boykin–Tahl challenge, it “required courts to put on the record the questioning of the defendant concerning his Boykin/ Tahl rights in order to preserve ‘a record adequate for any review that may be later sought.’  (Boykin, supra, 395 U.S. at p. 244, 89 S.Ct. at p. 1712;  italics added.)”  (People v. Sumstine, supra, 36 Cal.3d at p. 919, fn. 6, 206 Cal.Rptr. 707, 687 P.2d 904.)   More important in terms of the precise issue before us, the court in Sumstine added that “[i]f a proper record exist[s], Boykin/Tahl claims could as easily be determined as right to counsel claims ․ [which are] easily determined on the face of the record.”  (Ibid.)

In the instant case, the trial court had the benefit of the complete record of previous proceedings.   A review of that record showed a clear Boykin–Tahl violation in that defendant did not waive his right to jury trial or his right of confrontation prior to entering his plea as to two of his prior convictions.   Because the face of the record irrefutably revealed a valid Boykin–Tahl claim, the trial court properly found those two prior convictions “constitutionally invalid” within the meaning of section 41403, subdivision (b)(5).


Given that the order striking the prior conviction allegations based on guilty pleas stemming from offenses that occurred on December 15, 1984, and April 3, 1985, is affirmed, the judgment of conviction is similarly affirmed.


1.   All statutory references are to the Vehicle Code unless otherwise stated.

2.   The section 23152 violations were charged as felonies pursuant to section 23175 which provides state prison as a possible penalty for violating section 23152 within seven years of three or more separate violations for that section or other related specified sections which resulted in convictions.

3.   The People and defense counsel on appeal agree that the information in CR 3232 inadvertently alleged that defendant's second section 23152 prior conviction occurred on January 1, 1984, instead of the true date of August 13, 1984.   Counsel also agree that, in actuality, the four prior section 23152 convictions alleged in CR 2980 are the same four prior convictions alleged in CR 3232.   In order to present an accurate factual statement, we rely upon their joint representation and a photocopy of defendant's Department of Motor Vehicles “rap sheet” which confirms that the violation dates for defendant's four section 23152 prior convictions are the same as those cited above.

4.   The People wisely do not rely upon People v. Harty (1985) 173 Cal.App.3d 493, 219 Cal.Rptr. 85, in which the court concluded that a defendant does not establish that “[his] constitutional rights were infringed in the separate proceeding at issue” (Veh.Code § 41403, subd. (b)(3)) unless he satisfies the stricter collateral attack standard of proving “actual prejudice from any Boykin–Tahl error.”  (Harty, supra, at 502, 219 Cal.Rptr. 85.)  Harty relied upon In re Ronald E. (1977) 19 Cal.3d 315, 137 Cal.Rptr. 781, 562 P.2d 684, in which the court concluded that a petitioner who establishes he did not waive his Boykin/ Tahl rights would have to prove prejudice in a habeas corpus proceeding:  “Petitioner is not entitled to collateral relief merely because of a Boykin/Tahl denial as in such event the writ would merely serve as an alternate path for appellate review.   He must, in these circumstances, establish that his admissions were involuntary for want of the admonitions required by Boykin/Tahl.   But notwithstanding the absence of such admonitions, if he were in fact independently aware of Boykin/Tahl rights, then his admissions could not be deemed involuntary and he would not be entitled to collateral relief.”  (In re Ronald E., supra, 19 Cal.3d at p. 325, fn. 8, 137 Cal.Rptr. 781, 562 P.2d 684.)Harty held that “[w]hile it is now clear that a motion to strike is a proper and timely vehicle to attack an invalid prior conviction [citation], a successful collateral attack on a prior conviction requires an allegation and a showing of actual prejudice from any Boykin/Tahl error.  [Citations.]  ․ [¶] In the context of this adult criminal proceeding, Ronald E. requires appellant to establish that his guilty plea was in fact involuntary for want of the Boykin/Tahl admonitions.   Thus, assuming Boykin/Tahl error, reversal is not required where it is not reasonably probable that, if advice were given and more explicit waivers were sought, appellant would not have pleaded guilty at the [earlier] proceedings.  [Citation.]”  (People v. Harty, supra, 173 Cal.App.3d at 502–503, 219 Cal.Rptr. 85.)Section 41403, subdivision (b)(1)'s explicit requirement that “[t]he burden of proof remains with the prosecution throughout and is that of beyond a reasonable doubt” precludes grafting Harty 's general holding that the defendant must establish prejudice onto the unique statutory scheme set forth in section 41403.

5.   In its discussion of the burden of proof relevant to a collateral attack of a prior conviction underlying a prior-murder special circumstance, the court in Curl v. Superior Court (1990) 51 Cal.3d 1292, 1306, fn. 8, 276 Cal.Rptr. 49, 801 P.2d 292, recognized the unique scheme set forth in section 41403 when it commented that “the very fact that the Legislature explicitly incorporated the ‘beyond a reasonable doubt’ standard of proof into the bifurcated statutory scheme of Vehicle Code section 41403, reinforces our conclusion that provision for such a heightened standard of proof could have been, but was not, expressly incorporated by the drafters into the statutory scheme here in issue.”

COTTLE, Associate Justice.

PREMO, Acting P.J., and ELIA, J., concur.

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