Opinion
NOT TO BE PUBLISHED
Santa Clara County Super.Ct. No.CC593240
ELIA, J.Frederick William Everts appeals from a judgment of conviction of 15 counts of committing a lewd or lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)), two counts of employing a child for noncommercial pornography (§ 311.4, subd. (c)), and one misdemeanor count of possessing child pornography (§ 311.11, subd. (a)) following the submission of the case for decision based upon the preliminary hearing transcript and other exhibits. He was sentenced pursuant to Three Strikes law (§§ 667, subds. (b)-(i); 1170.12) to a total term of 800 years to life, which sentence was calculated with reference to One Strike law (§ 667.61).
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant asserts that that the judgment must be reversed because he did not personally waive his constitutional right against self incrimination before the submission of case to the court for decision, which submission was a "slow plea" tantamount to a plea of guilty. We conclude the "slow plea" was voluntary and intelligent under the totality of the circumstances and affirm.
A. Procedural History
By information filed October 27, 2005, defendant was charged with 15 felony counts of committing a lewd or lascivious act upon a child under the age of 14 (§ 288, subd. (a)) (counts one through 15), two felony counts of employing a child for noncommercial pornography (§ 311.4, subd. (c)) (counts 16 and 17), and one misdemeanor count of possessing child pornography (§ 311.11, subd. (a)) (count 18). John Doe 1 was the alleged victim in counts one through six and count 16, John Doe 2 was the alleged victim in counts seven and eight, and John Doe 3 was the alleged victim in counts nine through 15 and count 17.
As to counts one through 15, the information alleged two circumstances specified by One Strike law (§ 667.61), specifically that defendant had suffered a qualifying prior Oregon conviction within the meaning of section 667.61, subdivisions (a) and (d), and defendant had committed a qualifying offense against more than one victim within the meaning of section 667.61, subdivisions (b) and (e). The information also alleged two prior strike convictions, both Oregon sex offenses, within the meaning of Three Strikes law. (See §§ 667, subds. (b)-(i); 1170.12.)
Section 667.61 applies to specified offenses, including a lewd or lascivious act in violation of section 288, subdivision (a). (§ 667.61, subd. (c)(8).) Section 667.61 mandates a sentence of 25 years to life for a qualifying offense where a defendant has been previously convicted of a qualifying offense, including an offense committed in another jurisdiction that includes all of the same elements. (§ 667.61, subds. (a), (c)(8), (d)(1).) Where a mandatory sentence of 25 years to life is not required under subdivision (a) of section 667.61, section 667.61 mandates a sentence of 15 years to life where "[t]he defendant has been convicted in the present case or cases of committing [a qualifying offense] against more than one victim." (§ 667.61, subds. (b), (e).)
Defendant initially pleaded not guilty to all charges. On January 3, 2006, defendant added the plea of not guilty by reason of insanity. At the same time, he waived his right to a jury trial on both the guilt and sanity phases. The court informed the defendant that, at the court trial, the defendant would be entitled to exercise a number of rights, including "the right to testify on your own behalf or to invoke your right against self-incrimination and say nothing." Defendant indicated that he understood each of the rights.
On January 30, 2006, the parties indicated that the case was being submitted to the court for decision. When the court asked defendant whether he had talked with his lawyer about "proceeding in this fashion," the defendant answered, "Yes, I did." Before accepting the submission, the court advised defendant of his right to confront and cross-examine witnesses during the trial and the right to produce evidence, which included the right to testify on his own behalf, and obtained waivers of those rights. The court informed defendant of the "likelihood that the Court may find you guilty of the charges in this Information when we proceed in this fashion." It also solicited from counsel the information that defendant faced a maximum prison term of 1,175 years to life.
The case was submitted based upon the preliminary hearing transcript, exhibits from the preliminary hearing, CDs and transcripts of two interviews between defendant and San Jose police during which defendant described his conduct with the alleged victims, transcripts of two interviews of John Doe 2, and a packet concerning the prior Oregon convictions of two sex offenses committed in 1992. There was also a stipulation that "all evidence introduced at the preliminary hearing is admissible at the court trial" and defendant was the defendant in the prior Oregon case.
The packet concerning the prior Oregon convictions contained a petition to plead guilty to two counts of a 15-count indictment and a waiver of jury trial, which was signed by defendant and dated January 27, 1993. The petition recited defendant's understanding of his rights, including the rights "to remain silent about all facts of the case" and "to have the jury told, if I decide not to testify at trial, that they cannot hold that decision against me . . . ." It also recited his understanding that he would be giving up all those rights by pleading guilty.
The prosecutor and defense counsel waived opening statement. On February 17, 2006, the court heard the prosecutor's closing statement. Defendant's counsel told the court that the defense was not disputing the evidence in the guilt phase. He simply asked the court "to use its discretion in deciding the physical acts occurred." The prosecutor and defense counsel submitted the case. The court found defendant guilty beyond a reasonable doubt of the 18 charged counts and found all allegations true beyond a reasonable doubt.
During the sanity phase, defense counsel called defendant as a witness and the court admitted the defense exhibit, a packet of documents concerning defendant's medical history, into evidence. The court found defendant to be sane at the time he committed the charged offenses.
On February 9, 2007, the court denied a Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and sentenced defendant to a total indeterminate term of 800 years to life as follows: 10 consecutive terms of 75 years to life on counts one through 9 and 15, five concurrent terms on counts 10 through 14, two consecutive terms of 25 years to life on counts 16 and 17, and a six-month county jail term on count 18 with six months credit for time served.
Under Three Strikes law, a defendant who is convicted of a felony and has suffered two or more prior strike convictions must be sentenced to an indeterminate term of life imprisonment with the minimum term calculated as the greater of three alternatives, including (1) "[t]hree times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions," (2) a 25-year prison term, and (3) "the term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement . . . ." (§ 667, subd. (e)(2)(A); 1170.12, subd. (c)(2)(A)(iii).) A Three Strikes sentence may be calculated with reference to One Strike law. (See People v. Acosta (2002) 29 Cal.4th 105, 130-135.)
B. Failure to Obtain Express Waiver of Right against Self-Incrimination
"A guilty plea operates as a waiver of important rights, and is valid only if done voluntarily, knowingly, and intelligently, 'with sufficient awareness of the relevant circumstances and likely consequences.' Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)." (Bradshaw v. Stumpf (2005) 545 U.S. 175, 183 [125 S.Ct. 2398].) "A slow plea is defined as a submission of the guilt phase to the court on the basis of the preliminary hearing transcripts that is tantamount to a plea of guilty because guilt is apparent on the face of the transcripts and conviction is a foregone conclusion if no defense is offered. (People v. Wright (1987) 43 Cal.3d 487, 496 . . . .)" (People v. Sanchez (1995) 12 Cal.4th 1, 28.) A submission constituting a "slow plea" requires a court to expressly advise a defendant of three constitutional rights, the right to jury trial, the privilege against self-incrimination, and the right to confront and cross-examine adverse witnesses, and to obtain personal waivers of those rights. (See People v. Sanchez, supra, 2 Cal.4th at pp. 27-28; People v. Howard (1992) 1 Cal.4th 1132, 1178-1179; see also Brady v. U.S. (1970) 397 U.S. 742, 747, fn. 4 [90 S.Ct. 1463] [Boykin added requirement that "record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily"]; Boykin v. Alabama (1969) 395 U.S. 238, 243 [89 S.Ct. 1709] [a valid waiver of constitutional rights cannot be presumed from silent record]); In re Tahl (1960) 1 Cal.3d 122, 132 [interpreting Boykin as requiring trial court to specifically and expressly enumerate those three constitutional rights for the defendant's benefit and to obtain the defendant's personal waiver of those rights prior to accepting a guilty plea].) There is no dispute on appeal that the submission of this case for judicial decision constituted a "slow plea" tantamount to a plea of guilty and the submission in effect gave up the privilege against self-incrimination (see People v. Robertson (1989) 48 Cal.3d 18, 39-40).
"A submission that prospectively appeared to be a slow plea may turn out to be part of a full-blown trial if counsel contested the sufficiency of evidence for those counts or presented another potentially meritorious legal argument against conviction. Conversely, a submission that did not appear to be a slow plea because the defendant reserved the right to testify and call witnesses or to argue the sufficiency of the evidence [citation] may turn out to be a slow plea if the defense presented no evidence or argument contesting guilt." (People v. Sanchez, supra, 12 Cal.4th at p. 28.) Here, defense counsel presented no evidence or substantive argument in the guilt phase.
In People v. Howard, supra, 1 Cal.4th 1132, the trial court had accepted a defendant's admission of a prior prison term allegation "without first advising him, expressly and on the record, of the privilege against self-incrimination." (Id. at p. 1174.) On review, the Supreme Court "reexamined Boykin and [its] prior understanding of that decision, and concluded that failure to specifically articulate each of the three constitutional rights waived by a plea of guilty or admission of a prior conviction does not require reversal if the record nonetheless makes it clear that the 'plea was voluntary and intelligent under the totality of the circumstances.' " (People v. Adams (1993) 6 Cal.4th 570, 576, fn. 5.) Although the Supreme Court recognized that explicit admonitions and waivers are "an important part of the process of accepting a plea of guilty or an admission of a prior conviction" and are still required in this state (Howard, supra, 1 Cal.4th at p. 1178), it discarded the prior rule of automatic reversal for Boykin-Tahl error in light of the weight of authority. (Id. at pp. 1175, 1178.) It observed that the United States Supreme Court had stated that "the standard for determining the validity of a guilty plea 'was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.' (North Carolina v. Alford, supra, 400 U.S. at p. 31 [27 L.Ed.2d at p. 168], citing Boykin, supra, 395 U.S. at p. 242 [23 L.Ed.2d at p. 279]; see also Brady v. United States, supra, 397 U.S. at pp. 747-748 [25 L.Ed.2d at pp. 755- 756].)" (Id. at p. 1177.)
Howard, supra, 1 Cal.4th 1132, 1178 explicitly "adopt[ed] the federal test in place of the rule that the absence of express admonitions and waivers requires reversal regardless of prejudice" "[b]ecause the effectiveness of a waiver of federal constitutional rights is governed by federal standards (Boykin, supra, 395 U.S. at p. 243 [23 L.Ed.2d at p. 279]) . . . ." The federal test requires the record to "affirmatively demonstrate that the plea was voluntary and intelligent under the totality of the circumstances. [Citations.]" (Ibid.)
In Howard, supra, 1 Cal.4th 1132, the Supreme Court determined: "The record in this case affirmatively demonstrates that defendant knew he had a right not to admit the prior conviction and, thus, not to incriminate himself. The court specifically informed defendant that he had a right to force the district attorney to prove the prior conviction in a trial and that, in such a trial, he would have the rights to a jury and to confront adverse witnesses. The admonitions were not empty words because defendant was actively represented by counsel and preparing for trial on charges to which he had pled not guilty. Moreover, there was a strong factual basis for the plea. On this record, considering the totality of the relevant circumstances, we conclude that defendant's admission of the prior conviction was voluntary and intelligent despite the absence of an explicit admonition on the privilege against self-incrimination." (Id. at p. 1180, fn. omitted.) The Supreme Court stated in a case subsequent to Howard: "Although we have not directly held the Howard totality-of-the-circumstances test would apply on direct appeal from a guilty plea to a substantive offense, our subsequent cases seem to have assumed it. (See People v. Ernst (1994) 8 Cal.4th 441, 446 . . .; People v. Adams (1993) 6 Cal.4th 570, 576, fn. 5, . . .; People v. Wash (1993) 6 Cal.4th 215, 268-269 . . . [capital case].)" (People v. Allen (1999) 21 Cal.4th 424, 439, fn. 4.)
In People v. Mosby (2004) 33 Cal.4th 353, the California Supreme Court recognized that with Howard "the focus was shifted from whether the defendant received express rights advisements, and expressly waived them, to whether the defendant's admission was intelligent and voluntary because it was given with an understanding of the rights waived." (Id. at p. 361.) Mosby confirmed that a court must go beyond the record of the plea colloquy and review the entire record. (Ibid.) It also made clear that " 'a defendant's prior experience with the criminal justice system' is . . . 'relevant to the question of whether he knowingly waived constitutional rights.' (Parke v. Raley (1992) 506 U.S. 20, 37, 113 S.Ct. 517, 121 L.Ed.2d 391.)" (Id. at p. 365.) "That is so because previous experience in the criminal justice system is relevant to a recidivist's ' "knowledge and sophistication regarding his [legal] rights." ' (Parke, at pp. 36-37, 113 S.Ct. 517; see United States v. Dawson (9th Cir.1999) 193 F.3d 1107, 1110-1111 [defendant who had received full advisements in state court action two months before he entered a guilty plea on incomplete advisements in federal court knowingly waived rights of confrontation and silence despite lack of advisement on either].)" (Ibid.) It concluded that, under the totality of the circumstances, the defendant had voluntarily and intelligently admitted his prior conviction even though he was advised of and waived only his right to jury trial and not his rights to remain silent and to confront witnesses. (Ibid.)
Defendant agrees that the Howard totality-of-the-circumstances test applies but argues that this case is more similar to People v. Christian (2005) 125 Cal.App.4th 688, in which the appellate court concluded the record failed to demonstrate that the defendant entered his plea "understandingly and voluntarily" and reversed the judgment. (Id. at p. 698-699.) In People v. Christian, supra, 125 Cal.App.4th 688, the appellate court scrutinized the entire record but found no facts detailing the circumstances of defendant's prior convictions or demonstrating that defendant was aware of and comprehended his constitutional rights. (Id. at p. 697.)
In contrast to the record in People v. Christian, the record in this case shows that defendant was aware of his constitutional right not to incriminate himself and the fact that the submission would likely incriminate him and result in lifelong imprisonment. The record of defendant's guilty plea in the prior Oregon case indicates that defendant understood and waived his constitutional privilege against self-incrimination. In early January 2006, the same month this case was submitted for decision, the court advised defendant, in connection with his waiver of a jury trial, that he retained the right at a court trial "to invoke your right against self-incrimination and say nothing." Defendant then expressed his understanding of that right. Immediately before accepting the submission of this case later in January 2006, the court informed the defendant that he would likely be found guilty and be facing a maximum sentence of 1,175 years to life. It also obtained defendant's express waivers of the rights of confrontation and presenting evidence in his own defense. Defendant indicated he had discussed the choice of submission with his attorney.
The court's failure to expressly advise defendant of his right against self-incrimination and obtain a personal waiver of that right immediately before accepting a "slow plea" does not necessarily require reversal. (See People v. Calvert (1993) 18 Cal.App.4th 1820, 1837-1838.) The validity of the submission depends upon whether the record affirmatively demonstrates that the submission and the attendant inherent waivers of constitutional rights were voluntary and intelligent under the totality of the circumstances. (See People v. Howard, supra, 1 Cal.4th at p. 1178.) Our review of the record leads us to conclude, considering the totality of the circumstances, defendant was aware of his right against self-incrimination and voluntarily and intelligently gave up that right in the guilt phase and the submission represented a voluntary and intelligent choice among the alternatives available to defendant.
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.