Opinion
D048214
5-1-2007
THE PEOPLE, Plaintiff and Respondent, v. DAVID EARL SCHILTZ, Defendant and Appellant.
NOT TO BE PUBLISHED
A jury convicted appellant David Schiltz of receiving, withholding or concealing a stolen vehicle (Pen. Code, § 496d), unlawfully driving a vehicle (Veh. Code, § 10851, subd. (a)) and evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a)). The trial court subsequently found true the allegations that Schiltz had suffered three prior prison terms (§ 667.5, subd. (b)) and two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12). Schiltz challenges the jury convictions based on alleged instructional errors. He also challenges the sentence, arguing his 1978 guilty plea to a robbery charge does not qualify as a prior strike conviction. Schiltz also asserts, and the People concede, People v. Trujillo (2006) 40 Cal.4th 165 mandates reversal of the true finding that his prior Nevada conviction qualified as a prior strike conviction. We agree and therefore reverse that true finding and order the issue remanded for retrial if the People so decide. (Id. at p. 174; Monge v. California (1998) 524 U.S. 721.)
All further statutory references are to the Penal Code unless otherwise specified.
After the guilt phase, the jury in a bifurcated proceeding found Schiltz sane at the time of the offenses. Schiltz does not claim the sanity phase was infected by error, and therefore we do not detail the evidence presented in that phase.
I
FACTS
A. Prosecution Case
On January 6, 2004, Detective Winslow found a 2000 Chevrolet Silverado pickup truck (the truck), reported stolen in Las Vegas, parked across the street from a house where automobile thieves had been known to reside. The original license plates had been replaced with those registered to a Ford vehicle. Winslow staked out the truck and house. At approximately 6:00 p.m. Schiltz emerged from the house, got into the truck, and drove away.
Two marked police units moved in immediately behind the truck. Police followed the truck until it stopped at a stop light. While Schiltz was stopped at the light, Detective Murillo (driving an unmarked vehicle and in plainclothes) pulled up next to the truck on the drivers side and saw Schiltz. The officer in the marked police vehicle immediately behind Schiltz aimed his search light at the truck, activated the overhead light bar, and got out to perform a "hot stop." The officer unholstered his gun and began shouting orders to Schiltz. Schiltz looked in his rear view mirrors and then drove away. He turned right and went up and over a curb, through some bushes, across a gas station parking lot, and onto the intersecting street. Officers gave chase, with the lead car activating its siren. Schiltz did not yield, but ran several stop signs. At one intersection, several cars had to slow or stop to avoid collisions. The speed limit in the area was 25 miles per hour, but Schiltz was traveling between 30 and 55 miles per hour. After Schiltz turned onto Flamingo, his speed increased to between 50 and 60 miles per hour. Schiltz eventually stopped, abandoned the truck, and escaped. When Detective Winslow examined the truck, the ignition had not been tampered with and the windows were intact. A cup bearing Schiltzs fingerprints was found in the truck.
The truck owner, a car sales company in Las Vegas, discovered the truck had been stolen from its Las Vegas lot in November 2003 following an overnight break-in. The keys to the truck were also missing.
B. Defense Evidence
Schiltz testified he found work at a tow yard in 2003. Schiltz saved his employers home and business from an approaching fire and the employer showed his gratitude by giving Schiltz a fully-contained 1985 motor home. In November 2003 Schiltz and Julie Kolasz drove the motor home to Las Vegas. Kolasz testified she met Schiltz in November 2003 and accompanied him to Las Vegas in a motor home. A few days later, he met "Richie" and spent the next approximately 10 days socializing with him. Richie was homeless but had the truck, which he wanted to sell, and Schiltz agreed to exchange the motor home for the truck.
The next day, Schiltz met Julie Cox. She asked him for a ride to her home in Arkansas. Schiltz met with Richie and gave him the keys and paperwork for the motor home but Richie was in the midst of an argument with two girlfriends and therefore could not immediately give Schiltz the paperwork for the truck. Schiltz agreed to wait and spent a few hours waiting before he told Richie that he was leaving to drive Julie Cox to Arkansas, and would collect the paperwork when he returned. Schiltz twice tried telephoning Richie while on the road, but did not reach him. Schiltz also spent a week unsuccessfully trying to find Richie after returning to Las Vegas from Arkansas. Schiltz then returned to San Diego. He later replaced the license plates on the truck because the license plates had expired. The new license plates were given to Schiltz by a friend, Mike, from a car that Mike owned but had been wrecked.
Schiltz had little recall of the events of January 6, 2004. He was feverish and nauseous, and was frightened that someone had tried to kill him by adulterating the drugs he had earlier used. To counteract the symptoms, he went to a house where he obtained and consumed a large amount of methamphetamine. When he left the house he felt high and sensed danger. He drove in a way to lose someone if they were following him, although he saw no one following him.
While at a signal light, he saw a man looking at him and making faces, and Schiltz thought it was an Egyptian government hit man sent to kill him to prevent him from talking about pyramids on Mars. Suddenly, he was blinded by a bright light and he drove away because he feared the agent was going to kill him. He did not know there were police behind him or in pursuit. When the truck started malfunctioning, he left it and ran away.
A defense doctor testified long-term methamphetamine users suffer from delusions and paranoia and a condition similar to schizophrenia.
It was not unusual for Schiltz to own an unregistered truck because, when he was dealing drugs, he often traded drugs for vehicles, including vehicles that were not stolen. He did not think the truck was stolen.
Julie Cox met Schiltz on November 24, 2003, in Las Vegas. She was having difficulty returning to Arkansas and accepted his offer to drive her there. When she next saw him, he told her he had traded his motor home for the truck he was then driving. She helped Schiltz transfer his belongings from the motor home to the truck, and went with him to meet Richie to exchange the paperwork. However, Richie was involved in an argument with two women and Schiltz was unable to get Richies attention. Schiltz gave Richie the paperwork and keys for the motor home but could not get the paperwork for the truck, and left with Cox. During the trip, Schiltz made numerous calls to Richie but was unable to locate him.
II
CHALLENGES TO JURY VERDICTS
A. The "Mistake" Instruction
Schiltz requested a special instruction stating that if he had a good faith belief that he had the right to the truck, even though it was a mistaken belief, that belief would be a defense to any theft offense even if Schiltzs belief was unreasonable. The trial court instead gave CALJIC No. 4.35, which stated, "An act committed or an omission made in ignorance or by reason of a mistake of fact which disproves any criminal intent is not a crime. [¶] Thus a person is not guilty of a crime if he commits an act or omits to act under an actual belief in the existence of certain facts and circumstances which, if true, would make the act or omission lawful." Schiltz asserts the court erred in substituting CALJIC No. 4.35 for his proposed pinpoint instruction and the error was prejudicial.
Schiltzs proposed instruction stated: "The defendants good faith belief, even though mistakenly held, that he had a right or claim to the property taken, negates the intent to steal. [¶] The defendant need not show that his mistaken claim of right was reasonable. An unreasonable belief that he had a legal right to take the property will suffice so long as the claim was made in good faith. [¶] If, after consideration of all the evidence, you have a reasonable doubt whether the defendant acted under a good faith belief in a right or claim to the property you must find him not guilty."
Even assuming Schiltz preserved the argument for appeal, we conclude the instruction was properly refused because it was misleading. His proposed instruction stated that "a good faith belief [of] a right or claim to the property taken . . . negates the intent to steal." (Italics added.) However, the only offense to which this instruction was even potentially relevant — the unlawful taking or driving offense (Veh. Code § 10851, subd. (a)) — was prosecuted under the theory that Schiltz violated the law because he drove the truck knowing it was stolen, not that he had stolen the truck. (Cf. People v. Jaramillo (1976) 16 Cal.3d 752, 757 [§ 10851 can be violated by "driving a vehicle . . . with or without intent to steal the vehicle"].) Accordingly, the italicized portion of Schiltzs proposed special instruction would have created confusion by instructing on "intent to steal" when that intent was not an element of the charges the jury was to decide. When a proposed pinpoint instruction is misleading, and the import of the legal principles contained within the pinpoint instruction are adequately covered by other instructions given by the court, it is proper to decline to give the pinpoint instruction. (See, e.g., People v. Bolden (2002) 29 Cal.4th 515, 556-559.)
The colloquy below suggests Schiltz proffered his special instruction believing the court had refused to give CALJIC No. 4.35. However, the court noted Schiltz had withdrawn his original lengthy list of instructions (including CALJIC No. 4.35) before the court had ruled on it, and was instead ruling on Schiltzs revised list, which did not include CALJIC No. 4.35 because (as Schiltz stated) he had "scratched out the wrong one here." The court then stated it would give CALJIC No. 4.35, rather than the special instruction, and Schiltz did not further argue CALJIC No. 4.35 was inadequate or articulate why his special instruction should instead be given. Instead, he thanked the court for giving CALJIC No. 4.35. We need not decide whether this conduct amounts to a withdrawal of the special instruction because we conclude the instruction was properly refused and the remaining instructions were adequate.
The prosecutors closing argument, succinctly summarizing the issues presented by the section 10851 charge, stated, "In count 2, the violation of Vehicle Code section 10851, the defendant is not charged with the theft of the vehicle at all. The theory on this one is that he was driving a stolen vehicle. . . ."
Even assuming the court sua sponte should have reconfigured the proposed instruction to incorporate Schiltzs claim that any belief (even unreasonably held ones) would constitute a defense to the unlawful driving offense, we are convinced the omission was harmless. The jury was instructed that Schiltz would not be guilty if he acted "under an actual belief in the existence of certain facts which, if true, would make the act or omission lawful." (Italics added.) This language neither limited "actually held" beliefs to reasonable ones nor excluded unreasonable beliefs from its ambit. We presume jurors are intelligent people capable of understanding and correlating the instructions they are given (People v. Crandell (1988) 46 Cal.3d 833, 873-874, disapproved on other grounds by People v. Crayton (2002) 28 Cal.4th 346, 364-365), and therefore presume the jury understood the import of the instruction to mean they should acquit Schiltz if they found he actually believed the truck was not stolen, regardless of whether a reasonable person confronted with the same facts may have held a different belief.
There appears to be some disagreement over whether a belief that is wholly unreasonable would constitute a defense. (Compare People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 10-11 [court errs by instructing belief must be actual and reasonable] with People v. Stewart (1976) 16 Cal.3d 133, 140 [questioning whether a belief that is "wholly unreasonable" in light of fact known to defendant would constitute defense].)
Schiltz asserts the error was prejudicial because the prosecutors closing argument purportedly emphasized the unreasonableness of Schiltzs belief that the truck was not stolen to counter his defense that he believed he was legally entitled to drive the truck. However, we have reviewed the passages of the prosecutors closing argument that Schiltz cites to support this assertion, and are convinced the prosecutor was not arguing or implying that Schiltzs belief regarding the status of the truck was legally invalid because it was unreasonable. Accordingly, the instructions were adequate.
The quoted comments (when read in context) merely argued that, when the jury decides the reasonable interpretations of circumstantial evidence and whether the crimes had been proved beyond a reasonable doubt, the issue is not what is " reasonable in a defendants mind [but] is what [the jury] deem[s] reasonable. [¶] . . . [¶] The doubt has to be reasonable and it has to be yours. . . . He has asked you to look at things through his eyes. And thats not proper."
B. The Unanimity Instruction
Schiltz argues the court was obligated sua sponte to give a unanimity instruction in connection with the count alleging he violated section 496d. That section can be violated if a defendant, knowing a vehicle to have been stolen, has received, or alternatively withheld or concealed, the vehicle. (Ibid.) Schiltz asserts that, because there was evidence of each proscribed act, a unanimity instruction was required.
Factual Basis
Schiltz received the stolen truck in Las Vegas from Richie, and the prosecutor argued that when Schiltz first received the truck, he in fact knew it was stolen because of the circumstances surrounding the transaction. Secondly, the prosecutor argued that even if Schiltz was initially ignorant of the trucks status, by the time he returned to Las Vegas from Arkansas there were additional "red flags" that alerted him to its stolen status but he nevertheless kept (withheld) the truck. Thirdly, the prosecutor argued that after Schiltz returned to California, his knowledge of the trucks status was shown because he made no effort to renew the expired registration but instead switched the license plates with a legally owned car (concealed) because he did not want to be caught.
Legal Principles
"Defendants in criminal cases have a constitutional right to a unanimous jury verdict." (People v. Napoles (2002) 104 Cal.App.4th 108, 114.) When the jury is presented with evidence of more than one factual basis for conviction of the crime charged, the jury must be instructed along the lines of CALJIC No. 17.01 that it must unanimously agree upon the act or acts constituting the crime, and this instruction must be given sua sponte if not requested. (People v. Moore (1986) 185 Cal.App.3d 1005, 1014.) The purpose of the unanimity instruction is to prevent a verdict that results from some jurors believing the defendant committed one act and others believing the defendant committed a different act, without agreement on what conduct constituted the offense. (People v. Washington (1990) 220 Cal.App.3d 912, 915-916.)
When a defendant is charged with a single criminal act but the evidence reveals more than one instance of the charged crime, either the prosecution must select the particular act upon which it relies to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. (People v. Moore, supra, 185 Cal.App.3d at p. 1014; People v. Brown (1996) 42 Cal.App.4th 1493, 1499-1500.) However, the failure to give a unanimity instruction is harmless when disagreement by the jury concerning the factual basis for conviction is not reasonably probable. (People v. Jenkins (1994) 29 Cal.App.4th 287, 298.)
Analysis
We are convinced that, even assuming a unanimity instruction was required here (but see People v. Zavala (2005) 130 Cal.App.4th 758, 769 ; cf. People v. Sutherland (1993) 17 Cal.App.4th 602, 612), any error was harmless because there is no reasonable probability the jury disagreed on the factual basis for the conviction but nevertheless found him guilty. It was undisputed that Schiltz retained possession of the truck through January 6, 2004. The only disputed issue on which the jury could have disagreed was when Schiltz knew the truck was stolen. Although some jurors could have concluded Schiltz immediately knew of its stolen status in November 2003 when he obtained (received) the truck, while other jurors believed Schiltz was ignorant at the time of its receipt but came to know of its status at some later point while he continued to keep (withheld/concealed) the truck, the jury would not have convicted Schiltz unless all jurors agreed that Schiltz knew of its stolen status no later than when the police spotted and pursued him and caused him to abandon the truck. Because there is no reasonable probability some jurors found him guilty because they believed he did not know of its stolen status when he received it but did know of its stolen status while he continued to keep it, while other jurors found him guilty because they believed he knew of its stolen status when he received it but not know of its stolen status while he continued to keep it, there is no reasonable probability the jury disagreed on the factual basis for the conviction but nevertheless found him guilty.
C. The Discovery Instruction
Schiltz asserts the trial court prejudicially erred by giving CALJIC No. 2.28 because the instruction was unwarranted by the facts and is prejudicially ambiguous as to its implementation or application.
The Instruction
At the time of trial, CALJIC No. 2.28, as modified to identify the undisclosed information (the italicized portion below) and given to the jury during the guilt phase, read:
"The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of the truth, save court time and avoid any surprise which may arise during the course of the trial. Delay in the disclosure of evidence may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut the non-complying partys evidence. [¶] Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately. In this case, the Defendant failed to timely disclose the following evidence: identity of a witness, photos, expert witness reports, information regarding the motor home.
"Although the Defendants failure to timely disclose evidence was without lawful justification, the Court has, under the law, permitted the production of this evidence during the trial. [¶] The weight and significance of any delayed disclosure are matters for your consideration. However, you should consider whether the untimely disclosed evidence pertains to a fact of importance, something trivial or subject matters already established by other credible evidence."
The above instruction has met with nearly universal opprobrium. (See People v. Lawson (2005) 131 Cal.App.4th 1242, 1247-1249; People v. Cabral (2004) 121 Cal.App.4th 748, 751-752; People v. Bell (2004) 118 Cal.App.4th 249, 255.) The court in People v. Saucedo (2004) 121 Cal.App.4th 937, 942-943, explained the instruction is problematic because it "encourages speculation and offers insufficient direction. [A]lthough the jurors [a]re told "[t]he weight and significance of any delayed disclosure are matters for your consideration," the instruction provides no guidance on how this failure might legitimately affect their deliberations. [Citations.] Jurors are simply left to speculate, in the absence of any information, that the People were put at an actual disadvantage because of the late discovery. Further, if there were no diminution of the Peoples right to subpoena witnesses or present rebuttal, it is unclear how the jurors [a]re to evaluate the weight of the potentially affected testimony. Certainly, in the absence of any practical impact on the fact-finding process . . . the jurors [a]re not free to somehow fashion a punishment to be imposed on [the defendant] because [defendants] lawyer did not play by the rules. " (Saucedo, at p. 942, quoting Bell, at p. 255.)
In short, the instruction "implie[s] that the jurors should do something but they were given no idea what that something should be. Their alternatives were severely limited. They could disbelieve, discount, or look askance at the defense witnesses. But it is not clear why, or to what extent, they should do so in the absence of evidence that the prosecution was unfairly prevented from showing that the witnesses were unreliable." (People v. Bell, supra, 118 Cal.App.4th at p. 255.)
Analysis
Schiltz first asserts there was no factual basis for giving the instruction, arguing (1) his failure to list one witness (Julie Kolasz) did not violate discovery rules because he did not "reasonably [anticipate he would be] likely to call" her (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 376, fn. 11), (2) his failure to provide the photographs of the truck was inconsequential because the truck was in the prosecutors hands, and (3) he timely disclosed the expert witness reports from his mental health experts. However, the court concluded his explanation for not listing Ms. Kolasz as a potential witness or revealing her identity until a few days before calling her as a witness was not "believable" or in "good faith," and there is substantial basis for that conclusion. The fact the truck was in the prosecutors hands does not render inconsequential Schiltzs failure to provide his photographs of the truck because it preempted the prosecutors ability to verify whether the photos fairly portrayed the truck. Finally, Schiltz conceded at trial that he did not timely provide expert witness reports. There was an adequate factual basis for the instruction.
When the court was inserting the list of late-provided discovery into CALJIC No. 2.28, it stated it would include "photos, [expert] witness reports. Okay. I guess they werent done 30 days before trial because I remember this happening during trial. So okay. And the rest of the information about the motor home." Schiltz responded, "I didnt object to that. I was like, You got me. "
However, we agree the inherent ambiguity in CALJIC No. 2.28 makes its usage improvident. It invites the jury to fashion an amorphous sanction for injury done to the prosecution, without either offering any guidance as to an appropriate sanction or even requiring a demonstrable showing of injury to the prosecution from the discovery defalcations. Although use of CALJIC No. 2.28 is imprudent, we are convinced it was harmless under People v. Watson (1956) 46 Cal.2d 818, 836. It neither operates as a mandatory presumption of culpability, nor directs a finding of any fact. (People v. Saucedo, supra, 121 Cal.App.4th at p. 941.) Instead, it merely provides an additional platform from which to assert credibility challenges to evidence proffered by the defendant. (Id. at p. 943.) Here, the prosecution did not mention the late discovery (in either her closing or rebuttal arguments) as a basis for discrediting the late-provided defense evidence, thereby muting the impact of the instruction. Moreover, the only evidence on which CALJIC No. 2.28 might have operated appears to have been of minor significance. Ms. Kolasz (the only witness whom the jury was informed was a previously undisclosed witness) merely described Schiltzs drug ingestion (a fact essentially conceded by the prosecutor), his use of the motor home to travel to Las Vegas (which fact was confirmed by Julie Cox) and his need to obtain funds before arriving in Las Vegas, and Kolasz offered no evidence bearing on the central disputed issues of Schiltzs trade for the truck or his actions thereafter. Schiltz does not on appeal explain how doubts regarding the accuracy of his photographs might have swayed the jurys decision on whether he knew the truck was stolen.
Indeed, Kolaszs testimony was so de minimus that the prosecutors cross-examination covers barely three pages of reporters transcript, and her evidence is not mentioned by the prosecutor at all in her closing argument.
Schiltz asserts he was prejudiced because a part of his defense was the testimony of his mental health experts, and the reference to expert reports may have caused the jury to discount their testimony. However, in the guilt phase (the only phase in which this instruction was given), Schiltzs "mental health" experts testified only that methamphetamine use can over time cause paranoid and delusional ideations, but both experts conceded a methamphetamine user could form specific intentions and have feelings of omnipotence, and a user can show manic behavior while under the influence, which behavior was not necessarily the product of delusional ideations.
Dr. MacSpeiden diagnosed Schiltzs condition as amphetamine dependence and bipolar disorder, but appeared to rule out amphetamine-induced psychotic disorder with delusions (in remission) or amphetamine-induced psychotic disorder with hallucinations (in remission).
During closing argument, the prosecutor did not ask the jury to ignore the experts opinions as lacking veracity. Instead, the prosecutor noted the experts testified a methamphetamine user in the early phase of usage may simply have feelings of omnipotence before long-term use induces deterioration into delusional beliefs and a user could rationally perceive reality and form specific intentions. The prosecutor further noted Schiltzs expert testified Schiltz had a personality profile consistent with acting rashly and in disregard of the injurious consequences to others, and argued that this "kind of sounds like the omnipotent part of the methamphetamine cycle to me." We are convinced, considering the prosecutors limited cross-examination of the experts and affirmative use of the experts opinions, it is not reasonably likely the instruction caused the jury to ignore Schiltzs expert testimony.
III
CHALLENGES TO SENTENCE
Schiltz challenges the sentence insofar as it is based on the courts true finding that his 1978 guilty plea to a Riverside County robbery charge qualified as a prior strike conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12). He alleged the 1978 conviction was constitutionally invalid because he did not receive his "Boykin/Tahl" advisements and, because the record does not show on its face that he received such advisements, the trial court erred in denying his motion to dismiss the prior conviction allegation.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
A. Applicable Law
A trial court may not enhance the sentence of a criminal defendant based on a prior felony conviction obtained in violation of the defendants constitutional rights. (Burgett v. Texas (1967) 389 U.S. 109, 114-115.) Accordingly, when a state wishes to rely on a defendants prior felony conviction to enhance his or her sentence, the prior conviction must be constitutionally valid. (Garcia v. Superior Court (1997) 14 Cal.4th 953, 959.) A defendant may challenge the validity of a prior conviction (including raising a Boykin/Tahl claim) by a motion to dismiss the prior conviction allegation (People v. Sumstine (1984) 36 Cal.3d 909, 922-924) and, if the prior conviction is constitutionally invalid, the defendant is entitled to be sentenced without the effect of the prior conviction.
Under Boykin, to ensure a guilty plea is made intelligently and voluntarily, the record should show the defendant was made aware of three constitutional rights he or she was waiving by pleading guilty: the right to a jury trial, the right to confront the witnesses against the defendant, and the right to be free from compelled self-incrimination. An intelligent and voluntary waiver will not be presumed from a silent record. In Tahl, our Supreme Court concluded that, in light of Boykin, "each of the three rights mentioned — 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 [or her] guilty plea." (In re Tahl, supra, 1 Cal.3d at p. 132.)
Sumstine later concluded a criminal defendant may challenge the validity, in his or her present trial, of a prior felony conviction on Boykin/Tahl grounds (People v. Sumstine, supra, 36 Cal.3d at p. 920), and "directed trial courts to follow the following procedure: When a defendant makes sufficient allegations that his [or her] conviction, by plea, in the prior felony proceedings was obtained in violation of [the defendants] constitutionalBoykin-Tahl rights, the trial court must hold an evidentiary hearing. At the hearing, the prosecution bears the initial burden of producing evidence that the defendant did indeed suffer the conviction. The defendant must then produce evidence to demonstrate his [or her] Boykin-Tahl rights were infringed. The prosecution then has the right to rebuttal, at which point reliance on a silent record will not be sufficient." (People v. Allen (1999) 21 Cal.4th 424, 435.)
On appeal, the People appear to argue that, after People v. Howard (1992) 1 Cal.4th 1132, a defendants Sumstine motion to strike should be denied notwithstanding the absence of the explicit advisements and waivers contemplated by Boykin/Tahl as long as the prosecution can show from the totality of the circumstances that the plea was knowing and voluntary under federal constitutional principles. (Howard, at pp. 1175, 1177-1179.) However, the Allen court explained Howard was examining the appropriate standards for a direct appeal asserting Yurko (In re Yurko (1974) 10 Cal.3d 857) error, and Howard did not supplant or undermine Sumstine. (People v. Allen, supra, 21 Cal.4th at pp. 437-440.)
B. Evaluation
Schiltzs motion to dismiss the 1978 prior Riverside conviction allegation included evidence, in the form of his declaration, that he was neither advised of nor waived his Boykin/Tahl rights, and that if he had been advised of those rights he would not have pleaded guilty. In response, the prosecution did not provide either the change of plea form or the reporters transcript of the Riverside proceedings, but instead relied solely on the minute order. The minute order contained the following cryptic language: "x Court x advises defendant _ is informed that defendant has been advised of his legal rights. x Rights waived."
Schiltzs showing satisfied the initial burden placed on him by Sumstine. (See Sumstine, supra, 36 Cal.3d at pp. 922-923 [defendant must allege actual denial of Boykin/Tahl rights and produce evidence "tending to show his constitutional rights were infringed"].) After Schiltz made this showing, "it will not be sufficient rebuttal for the state to simply invoke the regularity of the silent record." (Ibid.) Instead, the prosecution must produce rebuttal evidence showing Schiltz received his Boykin/Tahl rights and waived those rights. (Sumstine, at pp. 923-924.)
Here, although the record states the "court advise[d] defendant of his legal rights" and the "rights [were] waived," it nowhere enumerates what legal rights Schiltz was advised of and waived. A defendant has many "legal rights" waived by a guilty plea (e.g., to a preliminary hearing, a speedy trial, and appeal) outside the ambit of Boykin/Tahl, and the record here does not reflect Schiltz was actually advised of one, all or none of the rights specified by Boykin/Tahl. While pre-Tahl cases did not require express advisements on the record as a condition to their validity, "in post-Tahl cases . . . trial courts were on notice that the record must contain on its face direct evidence that the accused was aware, or made aware, of his [or her] right to confrontation, to a jury trial, and against self-incrimination, as well as the nature of the charge and the consequences of his [or her] plea. [Quoting Tahl, supra, 1 Cal.3d at p. 132.)" (People v. Allen, supra, 21 Cal.4th at p. 443 [italics added by Allen].) The record produced below does not satisfy the prosecutions burden of showing Schiltz was expressly advised of and waived the rights enumerated by Boykin/Tahl, and we will not speculate (based solely on the amorphous reference in the minute order to Schiltz being advised of his "rights") that Schiltz was actually given his Boykin/Tahl advisements. On this showing, therefore, the Riverside County conviction may not be used to enhance Schiltzs sentence.
C. Appropriate Disposition
The People argue that, even were the prosecutions showing insufficient, we should remand the matter for a retrial on the special allegation to allow the prosecution to gather additional evidence as to the constitutional validity of the conviction. (People v. Barragan (2004) 32 Cal.4th 236.) Schiltz asserts remand is improper because, as a practical matter, the parties have mustered all of the evidence available on this question. We cannot predict what evidence might become available and we therefore will not preclude the prosecution from attempting to locate and produce additional evidence supporting the contention that Schiltz was advised of and waived the rights enumerated by Boykin/Tahl in the Riverside County proceeding.
DISPOSITION
The judgment of convictions and the true findings on the three prior prison term allegations are affirmed. The courts true findings as to the two prior strike conviction allegations are reversed, and Schiltzs sentence is vacated. The matter is remanded for a new sentencing hearing, and any further proceedings not inconsistent with this opinion.
We Concur:
HALLER, Acting P. J.
IRION, J.