Opinion
F051064
5-25-2007
THE PEOPLE, Plaintiff and Respondent, v. DEREK DUANE MORRISON, Defendant and Appellant.
William Davies, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette and Michael P. Farrell, Assistant Attorneys General, Michael A. Canzoneri and David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Harris, Acting P.J., Hill, J. and Kane, J.
Defendant entered a plea of guilty to count 1, felony assault with a deadly weapon, to wit, a knife (Pen. Code § 245, subd. (a)(1)) and admitted the truth of the prior "strike" conviction allegation (§ 667, subds. (c)-(j)). The remaining counts and allegations were dismissed. Defendant waived a presentence report, requested immediate sentencing and stipulated to a four-year prison term. He was sentenced to a state prison term of four years, which consisted of the low term of two years, doubled pursuant to section 1170.12. He filed a timely notice of appeal and thereafter obtained a certificate of probable cause from the trial court.
All statutory references are to the Penal Code unless otherwise noted.
The sole basis for appeal is that the trial court failed to advise defendant of his right to a jury trial prior to accepting his guilty plea and therefore his plea must be set aside. We affirm the judgment because we conclude that the record of his change of plea affirmatively establishes that the plea was intelligent and voluntary. (People v. Howard (1992) 1 Cal.4th 1132, 1178.)
FACTS
Before defendants preliminary hearing was to commence, his counsel informed the court that he wished to accept the prosecutions offer for a stipulated four-year prison term in consideration of his pleading guilty to count 1 and admitting the prior strike conviction, with the People dismissing the remaining counts and allegations. The court then engaged in colloquy with defendant in which defendant expressly waived his right to a preliminary hearing, requested immediate sentencing and waived certain rights, as follows:
"THE COURT: You also would have the right to a trial. Do you understand that right?
"[DEFENDANT]: Yes, sir.
"THE COURT: Do you give up that right?
"[DEFENDANT]: Yes, sir.
"THE COURT: During your trial you would have the right to testify in your own behalf and present affirmative defense evidence. [¶] Do you understand that right?
"[DEFENDANT]: Yes. Yes, sir.
"THE COURT: Do you give up that right?
"[DEFENDANT]: Yes.
"THE COURT: You have the right to use the subpoena powers of the Court to compel the attendance of witnesses. [¶] Do you understand that right?
"[DEFENDANT]: Yes, sir.
"THE COURT: Do you give up that right?
"[DEFENDANT]: Yes.
"THE COURT: You also have the right to confront and cross examine witnesses. [¶] Do you understand that right?
"[DEFENDANT]: Yes.
"THE COURT: Do you give up that right?
"[DEFENDANT]: Yes.
"THE COURT: You have the absolute right against self-incrimination and the right to remain silent under the Fifth Amendment of the U.S. Constitution. [¶] Do you understand that right?
"[DEFENDANT]: Yes.
"THE COURT: Do you give up that right?
"[DEFENDANT]: Yes."
Later, the court and defendant had the following exchange:
"THE COURT: Have you had enough time to discuss this plea, admission, the prior and its consequences with [defense counsel]?
"[DEFENDANT]: Yes.
"THE COURT: Do you have any questions of me, sir?
"[DEFENDANT]: No, sir.
"THE COURT: [Defense counsel], are you satisfied that [defendant] understands the nature of the plea and its consequences?
"[DEFENSE COUNSEL]: Yes, your Honor. [¶] . . . [¶]
"THE COURT: Based on the stipulation of counsel, the Court will find there is a factual basis for the plea, the admission of the strike prior and will further find that [defendant] has knowingly, intelligently and voluntarily waived the rights as explained to him, that he is fully aware of the consequences of entering a plea based on the Courts advisal, as well as representations of counsel."
DISCUSSION
Before a court may accept a guilty plea, it must specifically and expressly explain and obtain a waiver by the accused of the rights to a jury trial, to confront witnesses and against self-incrimination. (In re Tahl (1969) 1 Cal.3d 122, 132.) In the ongoing exercise of its supervisory powers, the California Supreme Court continues to require that trial courts expressly advise defendants of their Tahl rights on the record. (People v. Howard, supra, 1 Cal.4th at p. 1175.) However, where a defendant claims that the trial court failed to expressly advise and obtain proper waivers of these rights, the plea may be set aside only if it fails the "federal test." Under the federal test, a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances. (Ibid.)
In People v. Howard, supra, 1 Cal.4th 1132, the defendant pled guilty after waiving his confrontation and jury trial rights. The court failed to advise him of his right against self-incrimination. Nevertheless, considering the totality of the relevant circumstances, the court concluded that the defendants 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.)
In the instant case, defendant was expressly advised of his right to a trial, which he waived. He was expressly advised of his right to testify on his own behalf and present defense evidence, and he waived those rights. He was expressly advised of his right to use the subpoena powers of the court to compel attendance of witnesses, and he waived that right. He was expressly advised of his right to cross-examine witnesses, and he waived that right. He was expressly advised of his right against self-incrimination, and he waived that right. He was represented by counsel, who expressly stated that he was satisfied his client understood the nature of the plea and its consequences. Under the totality of these circumstances, defendants plea was voluntary and intelligent.
Defendant relies on People v. Ernst (1994) 8 Cal.4th 441 (Ernst) in arguing that the trial courts failure to obtain an express waiver of his jury trial right is reversible per se. In Ernst, the defendant was convicted following a court trial. There had been no express waiver by the defendant of his right to trial by jury. The court of appeal reversed the conviction on the ground that the defendant had not expressly waived his right to a jury trial and the Supreme Court affirmed. However, the Ernst court distinguished a case in which a defendant proceeds to trial without a jury, where an express waiver is required by article I, section 16, of the California Constitution, from a case such as People v. Howard, where a change of plea was taken and the court erroneously failed to obtain an express waiver of one of the Tahl rights. (People v. Ernst, supra, at p. 446.) The Ernst court noted: "Judicial authority also is in accord with our conclusion that the requirement in article I, section 16, of an express waiver applies only when the defendant exercises his or her right to a trial." (Id. at p. 448.) Thus, Ernst is not authority for the proposition that a failure to obtain an express waiver of the right to a jury trial on a change of plea is reversible per se. Instead, the validity of a change of plea is governed by the federal test, that is, whether the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances. (People v. Howard, supra, 1 Cal. 4th at p. 1175.)
Here, the totality of the circumstances indicated that defendant knowingly and intelligently gave up his right to a trial in consideration of a stipulated four-year prison term and the dismissal of several criminal counts. He was represented by counsel, who confirmed to the court his opinion that defendant understood the nature of the plea and its consequences. The record is sufficient to show that defendants change of plea was voluntary and intelligent.
DISPOSITION
The judgment is affirmed.