PEOPLE v. SAINZ (1990)

Facing charges of burglary and possession of stolen property (Pen.Code, §§ 459, 496), defendant Michael Angelo Sainz, Jr. on March 13, 1989, waived his right to jury trial of allegations that he had two prior felony convictions (Pen.Code, §§ 667, 667.5).   A jury empaneled that day found defendant guilty of burglary on March 16th.   Immediately after the jury was discharged, defendant admitted the allegations concerning the priors.   The only question on defendant's appeal from the ensuing judgment of conviction, with sentence to state prison for ten years, is whether reversal is commanded by reason of defective waivers of defendant's confrontation and self-incrimination rights.

Following the dictates of Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 and In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, our Supreme Court in In re Yurko (1974) 10 Cal.3d 857, 863, 112 Cal.Rptr. 513, 519 P.2d 561 held:  “We conclude that Boykin and Tahl require, before a court accepts an accused's admission that he has suffered prior felony convictions, express and specific admonitions as to the constitutional rights waived by an admission.”   Defendant does not challenge the adequacy of the trial court's admonitions.   His attack is confined solely to the corollary proposition of Yurko:  “The record must clearly reflect both the admonitions given the accused and the fact of the accused's waivers ․”  (Id. at p. 865, 112 Cal.Rptr. 513, 519 P.2d 561 [emphasis added].)  This was not the passing fancy of an ill-considered aside, but an essential point the court took pains to reiterate:  “ ‘[T]here must be a specific and express showing on the face of the record that the rights were known to and waived by ․ [defendant]․’ ”  (Id. at p. 862, 112 Cal.Rptr. 513, 519 P.2d 561.)   The consequence of noncompliance is plain:  “Where no such showing appears on the face of the record the conviction must be set aside.”  (Ibid.)  Our Supreme Court still holds to these requirements.  (See People v. Wright (1987) 43 Cal.3d 487, 491–492, 233 Cal.Rptr. 69, 729 P.2d 260 and authorities cited.)

The Attorney General concedes that explicit waivers by defendant of his constitutional rights do not appear on the face of the record.   He puts forward two related arguments against reversal.   Both are unavailing.

Reversal is not forestalled by our opinion in People v. Harty (1985) 173 Cal.App.3d 493, 219 Cal.Rptr. 85.   It is true that there we noted:  “[J]udgments have been affirmed where the record clearly shows (1) the defendant was fully advised of the three constitutional rights waived by pleading guilty, (2) the defendant has expressed his understanding of those rights being waived, but (3) something less than the magic words ‘I waive’ or ‘I give up’ were used to effectuate the waiver of those rights.  [Citations.]   What is of primary importance is the defendant's awareness of his constitutional rights.  [Citation.]  ‘The defendant does not have to say precisely by rote, “I give up my right to a trial by jury.”  “Something short of this procedure may in a proper context, be held sufficient;  ․”   [Citations].’ ”  (Id. at p. 502, 219 Cal.Rptr. 85 [emphasis in original].)  By itself, this passage seems to give the Attorney General a basis for attempting to defend the judgment.   But the passage cannot be ripped from its context.  Harty involved a collateral attack (via a motion to strike) on an allegedly infirm prior conviction.   Immediately after the passage quoted above, we stated:  “Ultimately, however, we need not decide if the Boykin–Tahl requirements were sufficiently complied with in this case.   While 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.”  (Ibid.)  One of the authorities we cited for the latter half of the second sentence was In re Ibarra (1983) 34 Cal.3d 277, 283, fn. 1, 193 Cal.Rptr. 538, 666 P.2d 980, where our Supreme Court explained the advantages of direct attack on appeal as opposed to collateral attack:  “We recognize that petitioner's claim that he did not waive his Boykin ․ and Tahl ․ rights ․ would be reviewed under a more favorable standard on appeal than on petition for habeas corpus.   Specifically, if petitioner did not waive those rights, he would be entitled to automatic reversal on appeal, but would have to prove prejudice in a habeas corpus proceeding.”   The judgment was affirmed in Harty, not because we found the functional equivalent of the Yurko requirements, but because we held that the defendant had failed to satisfy the stricter collateral attack standard of proving “actual prejudice from any Boykin–Tahl error.”  (See People v. Harty, supra, at pp. 502–504, 219 Cal.Rptr. 85.)

Defendant here is not mounting a collateral attack on a prior conviction.   He is instead launching a direct attack on his current conviction.   Having established noncompliance with Yurko, defendant is thus claiming that he is “entitled to [the rule of] automatic reversal on appeal” cited in Ibarra.   Read in its proper context, Harty does not establish a countervailing principle which carries the day for the Attorney General.

The related argument eschews Harty as controlling authority, but continues to employ it as furnishing a more fact-specific argument against reversal.   Invoking our statement that “ ‘[s]omething short of [the Yurko ] procedure may in a proper context, be held sufficient,’ ” the Attorney General claims to find in the combined context of the proceedings held on March 13th and 16th adequate demonstration of defendant's knowing waiver.   It is undoubtedly true that defendant's waiver of his right to jury trial on March 13th fully complied with the Yurko requirements.   Yet it is equally true that the waivers of defendant's remaining constitutional rights on March 16th occurred immediately after the conclusion of the fully contested jury trial which resulted in the jury returning a guilty verdict on the burglary charge.   The Attorney General would have us believe that the intervening events would not have affected defendant's presence of mind and ability to make a level-headed assessment of admitting the priors based on matters recited before the trial started.   We believe this argument stretches “ ‘proper context’ ” much too far and involves conjecture.

With the Attorney General's two arguments thus defeated, we can only apply the Supreme Court's rule of automatic reversal.  (See In re Ibarra, supra, 34 Cal.3d 277 at p. 283, fn. 1, 193 Cal.Rptr. 538, 666 P.2d 980;  In re Yurko, supra, 10 Cal.3d 857 at pp. 862, 865, 112 Cal.Rptr. 513, 519 P.2d 561.)   Had this been a situation where the advisements were defective we might have been able to avoid this result using the harmless error standard used in People v. Karis (1988) 46 Cal.3d 612, 650–651, 250 Cal.Rptr. 659, 758 P.2d 1189, People v. Guzman (1988) 45 Cal.3d 915, 968, 248 Cal.Rptr. 467, 755 P.2d 917, and People v. Prado (1982) 130 Cal.App.3d 669, 675–676, 182 Cal.Rptr. 129.   But a defendant's waivers, as we have seen, stand on a different plane.   As a matter of federal constitutional law, they cannot be presumed from a silent record.   This point was a constant refrain in Boykin:  “ ‘Presuming waiver from a silent record is impermissible․   Anything less [than a showing on the record] is not waiver.’  ․ The question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards․   We cannot presume a waiver of ․ important federal rights from a silent record.”  (Boykin v. Alabama, supra, 395 U.S. 238 at pp. 242–243, 89 S.Ct. at pp. 1711–1712 [citing and quoting Carnley v. Cochran (1962) 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70].)  Unless the record establishes that a waiver “ ‘is ․ equally voluntary and knowing, it has been obtained in violation of due process and is therefore void.’ ”   (Id. 395 U.S. at p. 243, 89 S.Ct. at p. 1712 [citing and quoting McCarthy v. United States (1969) 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418].)

Those portions of the judgment based on Penal Code section 667 and 667.5 are reversed, and the cause is remanded to the trial court for further proceedings.   The judgment of conviction is affirmed in all other respects.

I concur.   I find it difficult to rationalize the proposition that if a defendant is not properly advised of his constitutional rights his plea is subject to harmless error analysis on appeal, but if he does not recite the correct mantra in waiving those rights his plea is automatically reversed.   But if he is advised that he has a constitutional right to a “hearing” (instead of a “jury trial”) how can it be that he has properly waived his right to a jury trial?   If he “waives that right” is he not waiving the right to a “hearing” rather than the unspoken “jury trial?”   But our Supreme Court has concluded such error in advisement is harmless:  “On this record there is no reasonable possibility 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.   There is no dispute that defendant had suffered the priors and served prison terms therefor.”  (People v. Guzman (1988) 45 Cal.3d 915, 968, 248 Cal.Rptr. 467, 755 P.2d 917.)

Nevertheless, faced with the opportunity to address the effect of an improper waiver, our Supreme Court declined to accept.   That leaves in force its earlier pronouncement, albeit in a footnote and albeit dictum, but nevertheless unequivocal:  “if petitioner did not waive those rights [ (Boykin and Tahl ) ], he would be entitled to automatic reversal on appeal․”  (In re Ibarra (1983) 34 Cal.3d 277, 283, fn. 1, 193 Cal.Rptr. 538, 666 P.2d 980.)   I am satisfied that Justice Poché has correctly stated the current law of California and I am bound by that law.  (See In re Anderson (1968) 69 Cal.2d 613, 634–635, 73 Cal.Rptr. 21, 447 P.2d 117 [conc. opn. of Mosk, J.].)

I dissent from the reasoning of my colleagues.

I am unable to find language in any case by the California Supreme Court holding, as does the prevailing opinion in this case, that for purposes of determining the prejudicial impact of “Yurko error,” ¹ a defendant's waivers of constitutional rights before admitting prior felony convictions “stand on a different plane” than advisement of those constitutional rights.

A. Advice and Waiver of Boykin–Tahl Rights

After In re Yurko, supra, 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561, the law in this area was reasonably clear.   In that case, our Supreme Court recognized the United States Supreme Court's holding in Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 that “a plea of guilty was tantamount to a waiver of three important federal rights:  ‘First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment․   Second, is the right to trial by jury․   Third, is the right to confront one's accusers․' ”  (In re Yurko, supra, at p. 863, fn. 5, 112 Cal.Rptr. 513, 519 P.2d 561, quoting Boykin v. Alabama, supra, 395 U.S. at pp. 243–244, 89 S.Ct. at pp. 1712–1713.)

In In re Tahl (1969) 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 460 P.2d 449, our Supreme Court construed Boykin to require more than an inferential showing from the record that an accused waived his constitutional rights against compulsory self-incrimination, to trial by jury and to confront accusers.   It held that the trial court “must ‘specifically and expressly’ enumerate each of the rights, ‘employ the time necessary to explain adequately and to obtain express waiver of the rights involved’ prior to acceptance of a guilty plea, and ensure that an adequate record be available for possible review.  [Citations.]”  (In re Yurko, supra, 10 Cal.3d at p. 861, 112 Cal.Rptr. 513, 519 P.2d 561.)

Applying those principles, our Supreme Court in Yurko concluded “that Boykin and Tahl require, before a court accepts an accused's admission that he has suffered prior felony convictions, express and specific admonitions as to the constitutional rights waived by an admission.   The accused must be told that an admission of the truth of an allegation of prior convictions waives, as to the finding that he has indeed suffered such convictions, the same constitutional rights waived as to a finding of guilt in case of a guilty plea.”  (In re Yurko, supra, 10 Cal.3d at p. 863, 112 Cal.Rptr. 513, 519 P.2d 561.)

In 1987, our Supreme Court carefully reviewed its prior holdings in this general area.  (See People v. Wright (1987) 43 Cal.3d 487, 233 Cal.Rptr. 69, 729 P.2d 260.)   It said that in Tahl, “we construed Boykin to require the record to reveal ‘on its face’ that the trial court, before accepting a guilty plea, expressly advised the accused and obtained his or her waiver of the full panoply of constitutional rights:  the rights to trial by jury, to confront and cross-examine witnesses, and against self-incrimination.   We have often reiterated the Boykin–Tahl requirement that the record show explicit advisements and waivers of constitutional rights.  [Citations.]²  When the defendant actually pleads guilty or admits prior felony convictions and ‘no such showing appears on the face of the record[,] the conviction must be set aside.’  (In re Yurko, supra, 10 Cal.3d 857, 862 [112 Cal.Rptr. 513, 519 P.2d 561];  see In re Ronald E. (1977) 19 Cal.3d 315, 321 [137 Cal.Rptr. 781, 562 P.2d 684].)”  (People v. Wright, supra, at pp. 491–492, 233 Cal.Rptr. 69, 729 P.2d 260, emphasis added.)

Thus, until recently, our Supreme Court has consistently held that, at least on direct appeals (see In re Ibarra (1983) 34 Cal.3d 277, 283, fn. 1, 193 Cal.Rptr. 538, 666 P.2d 980), the failure both to explicitly advise and obtain waivers of any of the three fundamental constitutional rights is per se reversible error (see People v. Wright, supra, 43 Cal.3d at p. 493, 233 Cal.Rptr. 69, 729 P.2d 260).

B. Advice of Consequences

To be distinguished from the standard of review applicable when the record fails to show explicit advisements and waivers of the three Boykin–Tahl rights is the standard of review applicable to uninformed waivers based upon the failure of the trial court to advise an accused of the consequences of a plea or an admission of prior felony convictions.

After reaching its conclusion in Yurko concerning the applicability of Boykin and Tahl to admitting the truth of charged prior convictions (In re Yurko, supra, 10 Cal.3d at pp. 861–863, 112 Cal.Rptr. 513, 519 P.2d 561), the Supreme Court next raised the question “whether there is a requirement to further advise an accused with respect to the effect which a determination of habitual criminality will have on the punishment and other sanctions to be imposed upon the accused's conviction of the substantive crime charged.”  (Id., at p. 864, 112 Cal.Rptr. 513, 519 P.2d 561.)

To achieve justice for both the accused and the state, the Supreme Court concluded “that as a judicially declared rule of criminal procedure [citation] 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 [Penal Code] 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.  [Fn. omitted.]   The failure to so advise an accused in the enumerated instances will constitute error which, if prejudice appears, will require the setting aside of a finding of the truth of an allegation of prior convictions.  [Fn. omitted.]”  (In re Yurko, supra, 10 Cal.3d at p. 864, 112 Cal.Rptr. 513, 519 P.2d 561, emphasis added.)

Again, until recently, the Supreme Court clearly differentiated between the standard of review applicable to Boykin–Tahl errors and those relating to shortcomings in advice of the consequences of a guilty plea or admission of prior convictions.  “Unlike an uninformed waiver of the specified constitutional rights which renders a plea or admission involuntary and requires that it be set aside, an uninformed waiver based on the failure of the court to advise an accused of the consequences of an admission constitutes error which requires that the admission be set aside only if the error is prejudicial to the accused.”  (In re Ronald E. (1977) 19 Cal.3d 315, 321, 137 Cal.Rptr. 781, 562 P.2d 684, emphasis added, citing In re Yurko, supra, at p. 864, 112 Cal.Rptr. 513, 519 P.2d 561.)

C. Recent Cases

The prevailing opinion cites People v. Karis (1988) 46 Cal.3d 612, 650–651, 250 Cal.Rptr. 659, 758 P.2d 1189 and People v. Guzman (1988) 45 Cal.3d 915, 968, 248 Cal.Rptr. 467, 755 P.2d 917 in support of its conclusion that the standard of review for defective waivers “stand on a different plane” from that relating to advisements.   While I do not read that particular distinction into those decisions, the Supreme Court's discussion in those cases seems to have blurred some of the other distinctions set out above.

In Karis, for example, the court states the legal standard applicable to “Yurko error” as follows:  “Prior to accepting a defendant's admission that he has suffered a prior conviction, when that prior is charged for the purpose of enhancing a term imposed under the Determinate Sentencing Act, the court must advise the defendant of, and obtain on the record, express waivers by the defendant of the constitutional rights he waives by his admission.   The court must also advise the defendant of the impact the finding of prior conviction will have on his term.   If the advice and waivers do not appear on the record the finding must be set aside on appeal if prejudice appears.  (In re Yurko (1974) 10 Cal.3d 857, 863–864, 112 Cal.Rptr. 513, 519 P.2d 561.)”  (People v. Karis, supra, 46 Cal.3d at p. 650, 250 Cal.Rptr. 659, 758 P.2d 1189.)

Analyzing that paragraph, the first sentence summarizes the court's conclusion at the bottom of page 863 in Yurko that the Boykin–Tahl requirements were applicable as a prerequisite to accepting an accused's admission that he or she has suffered prior felony convictions.   Nowhere on that page, however, did the Yurko court discuss what standard of review should apply in the event of a Boykin–Tahl error.  (See In re Yurko, supra, 10 Cal.3d at p. 863, 112 Cal.Rptr. 513, 519 P.2d 561.)

The second sentence of the quoted paragraph in Karis reflects the Yurko court's discussion at the top of page 864, 112 Cal.Rptr. 513, 519 P.2d 561.   There, the court had changed its focus from Boykin–Tahl to the further requirement that the trial court advise [not obtain waivers from] an accused with respect to the effect which a determination of habitual criminality would have on the punishment and other sanctions to be imposed upon the accused's conviction of the substantive crime charged.  (See In re Yurko, supra, 10 Cal.3d at p. 864, 112 Cal.Rptr. 513, 519 P.2d 561.)

The third sentence in the paragraph quoted from Karis reflects the last sentence in the text on page 864, 112 Cal.Rptr. 513, 519 P.2d 561 of Yurko which, in its original context, clearly applied only to the failure to advise of consequences.   The Karis court appears to have applied that standard of prejudicial error across the board, to both the Boykin–Tahl and advice of consequences requirements.  (Compare People v. Karis, supra, 46 Cal.3d at p. 650, 250 Cal.Rptr. 659, 758 P.2d 1189, with In re Yurko, supra, 10 Cal.3d at pp. 863–864, 112 Cal.Rptr. 513, 519 P.2d 561.)

Although the decision does not expressly say so, Karis is susceptible to the interpretation that it involved only an error relating to advice of consequences.   The defendant was told he faced an additional five years for each prior conviction when in fact he faced the possibility of consecutive 10–year sentences.  (See People v. Karis, supra, 46 Cal.3d at p. 650, 250 Cal.Rptr. 659, 758 P.2d 1189.)   If so, then a search for prejudicial error was appropriate under the line of cases cited in part B, above.

I find it more difficult to reconcile Guzman with the earlier line of cases.   The underlying error clearly related to a defect in the Boykin–Tahl portion of the advice given to the defendant before he admitted his prior felony convictions.   Instead of being told that he had a right to a “jury trial,” the court told the defendant he had a right to a “hearing” at which the truth of the priors would have to be proved beyond a reasonable doubt.   The People implicitly conceded error.  (People v. Guzman, supra, 45 Cal.3d at p. 968, 248 Cal.Rptr. 467, 755 P.2d 917.)

Under earlier case law, this was clearly an error that would have resulted in an automatic reversal of that portion of the judgment based upon the admission of the prior conviction.   But the Supreme Court instead accepted the argument of the People that the error was harmless.  “On this record there is 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.   There is no dispute that defendant had suffered the priors and served prison terms therefor.   We therefore conclude the error was harmless.  (People v. Prado (1982) 130 Cal.App.3d 669, 675–676, 182 Cal.Rptr. 129;  People v. English (1981) 116 Cal.App.3d 361, 369–370, 172 Cal.Rptr. 122.)”  (People v. Guzman, supra, 45 Cal.3d at p. 968, 248 Cal.Rptr. 467, 755 P.2d 917.)

In reviewing the Court of Appeal decisions cited by the Supreme Court in Guzman, that portion of English relied upon related only to an error in the advice as to how English's sentence would be enhanced if he admitted the prior convictions.   In support of the proper application of harmless error analysis in that case, the Court of Appeal cited appropriate portions of In re Yurko, supra, 10 Cal.3d at p. 864, 112 Cal.Rptr. 513, 519 P.2d 561 and In re Ronald E., supra, 19 Cal.3d at pp. 325–326, 137 Cal.Rptr. 781, 562 P.2d 684.  (See People v. English (1981) 116 Cal.App.3d 361, 369–370, 172 Cal.Rptr. 122.)

In the other Court of Appeal case cited by the Supreme Court in Guzman, this court may have been as ambiguous in its language in Prado as I now find the Supreme Court to have been in Guzman.   Apparently in that case, there was error both as to the Boykin–Tahl advice and the advice given as to the consequences of the admissions.  (See People v. Prado (1982) 130 Cal.App.3d 669, 675, 182 Cal.Rptr. 129.)   In support of its decision that harmless error analysis was applicable, this court made a citation by way of analogy to In re Ronald E., supra, 19 Cal.3d at p. 325, 137 Cal.Rptr. 781, 562 P.2d 684, and ultimately relied on the earlier decision in People v. English, supra, 116 Cal.App.3d 361, 172 Cal.Rptr. 122.   Those authorities related only to errors in advice concerning the consequences of a defendant's admission to a prior conviction.

Every day our busy trial court judges are required to properly advise repeat offenders of the constitutional rights they waive when admitting prior convictions, to obtain explicit waivers of those rights, and to properly advise those defendants of the consequences of their admissions.   If the trial court falls short in those requirements, we at the appellate level must determine the impact of such errors.   Because of the frequency with which the situation arises, and the interest in achieving justice for both the accused and the state, it is important that we have clear-cut guidance as to what is legally required in this area.

If the court has fundamentally moved away from the direction I understood it had taken earlier, it would assist the lower courts if it could address the issue more fully in a case where this is a primary issue.

Although unlike my colleagues I do not read it into those decisions, has our Supreme Court declared a differing standard dependent upon whether a Boykin–Tahl error involves the advice given or the waiver that is taken?   Or has our high court inadvertently blurred the distinctions previously made between the standards of review applicable to the Boykin–Tahl advice and waiver requirement, which had been reversible per se, and the lesser standard applicable when there is an error in giving an accused advice concerning the consequences of his admission?   Or if the court intended to reconsider its earlier standard of review when there is a constitutionally based Boykin–Tahl error, might it not be more appropriate to adopt instead the “harmless beyond a reasonable doubt” standard set forth in Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705?

I respectfully suggest it would be helpful if the Supreme Court would look closely at this issue in this or some other appropriate case so as to clarify the ambiguity that has crept into this important area of the law.

FOOTNOTES

1.   See In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561.

2.   At this point, the Supreme Court cited the following cases to which it had applied these Boykin–Tahl requirements:  “(People v. Rizer (1971) 5 Cal.3d 35, 95 Cal.Rptr. 23, 484 P.2d 1367 [plea of not guilty by reason of insanity];  In re Sutherland (1972) 6 Cal.3d 666, 100 Cal.Rptr. 129, 493 P.2d 857 [guilty plea entered pursuant to a plea bargain];  Mills v. Municipal Court [1973] 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273 [guilty plea of misdemeanor through counsel permitted if record shows defendant's awareness and personal waiver of constitutional rights];  In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561 [admission of allegations of prior felony convictions];  People v. Hall (1980) 28 Cal.3d 143, 157, fn. 9, 167 Cal.Rptr. 844, 616 P.2d 826 [stipulation to the status of ex-felon].)”

POCHÉ, Associate Justice.