Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07800830. Carlos A. Cabrera, Judge.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Dawson, J. and Kane, J.
The trial court sentenced appellant Michael Zavala to 20 years in prison after Zavala admitted a prior serious felony conviction and a jury convicted him of attempted murder. Zavala appeals the sentence, contending Yurko error. He argues the admission was invalid because the record is silent on the required Boykin-Tahl advisements. We agree that this is a silent record case—rather than one of incomplete advisement—and will remand.
In re Yurko (1974) 10 Cal.3d 857 (Yurko).
Under Boykin v. Alabama (1969) 395 U.S. 238 (Boykin) and In re Tahl (1969) 1 Cal.3d 122 (Tahl), the record must show that prior to the acceptance of a guilty plea the defendant was advised of his or her privilege against self-incrimination, right to a jury trial, and right to confront witnesses. Yurko requires the same advisement be given before a defendant admits a prior conviction.
BACKGROUND
In May 2008, the district attorney filed a first amended information that charged Zavala in count 1 of corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)), count 2 of assault with a deadly weapon (§ 245, subd. (a)(1)), and count 3 of attempted murder (§§ 664, 187, subd. (a)). The information further alleged that Zavala used a deadly and dangerous weapon in violation of section 12022, subdivision (b)(1), and inflicted great bodily injury in violation of section 12022.7, subdivision (e). The facts of the substantive crimes are not germane to the appeal and are not recited here.
Further statutory references are to the Penal Code.
Additionally, the information alleged that Zavala was convicted in 2001 of first degree residential burglary (§§ 459, 460), resulting in a strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), a prior prison term (§ 667.5, subd. (b)), and a prior serious felony conviction (§ 667, subd. (a)(1)).
Zavala’s attorney successfully moved to bifurcate trial of the alleged prior conviction. A six-day jury trial on the substantive offenses ensued. Eight witnesses testified for the prosecution and were cross-examined by the defense. Zavala did not testify. During closing argument, Zavala’s attorney reminded the jury that his client had “an absolute constitutional right not to testify.”
While the jury was deliberating, the trial court turned to the prior conviction:
“[The Court:] Mr. Zavala, before the jury returns, we would like to take care of these matters of the priors. I’ve been told you’re willing to admit the priors. Of course, if you’re found not guilty it will be mute [sic], that will have an affect [sic] if you are found guilty. The priors can be proved, it’s just the matter of going through the process. But my understanding from your attorney is that you’re willing to voluntarily—”
Defense counsel interrupted to obtain an assurance that the court could still exercise Romero discretion at sentencing. The court said the possibility remained. Zavala then admitted the burglary conviction as a strike, a prior prison term, and a prior serious felony conviction. Zavala also admitted he did not remain free from prison in the five-year period following the prison term. The defense counsel joined the admission, and the court accepted it.
A Romero motion asks the court to strike a prior conviction allegation pursuant to the discretion granted by section 1385. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)
Later that afternoon, the jury returned a guilty verdict on all counts. Zavala was sentenced to 20 years in prison. The sentence included 14 years for attempted murder, a middle term doubled because of the strike; one year for using a deadly or dangerous weapon, and five years for the prior serious felony conviction.
Zavala filed timely notice of appeal.
DISCUSSION
The sole issue on appeal is whether Zavala’s admission of the prior conviction was valid as a voluntary and intelligent waiver of his rights to a jury trial, to avoid self-incrimination, and to confront witnesses.
I. Standard of Review
The trial court must ensure that a defendant who wishes to admit a prior conviction first receives a Boykin-Tahl advisement on the defendant’s rights regarding jury trial, self-incrimination, and witness confrontation. (See Yurko, supra, 10 Cal.3d at p. 863.) When the Boykin-Tahl advisement is defective, the appellate court must remand unless the record affirmatively shows the waiver was “‘voluntary and intelligent under the totality of the circumstances.’” (People v. Mosby (2004) 33 Cal.4th 353, 360 (Mosby), quoting People v. Howard (1992) 1 Cal.4th 1132, 1175.) The entire proceeding, not just the plea colloquy, is reviewed. (Mosby, at p. 361.)
The high court has divided defective plea advisements into two categories: (1) silent record cases, and (2) cases of incomplete Boykin-Tahl advisements. (Mosby, supra, 33 Cal.4th at p. 361.) An appellate court cannot infer voluntary and intelligent waiver from a silent record and must remand those cases. (See id. at p. 362.) Conversely, a case of incomplete advisement can be affirmed if the record affirmatively shows voluntary and intelligent waiver. (See id. at p. 365; see also People v. Howard, supra, 1 Cal.4th at p. 1180.)
II. The Parties’ Contentions
Zavala’s counsel contends that this is a silent record case that must be remanded because no Boykin-Tahl advisements were given.
The Attorney General contends that this is not a silent record case because Zavala was told the priors could be proved by going “through the process.” The Attorney General further contends the waiver was voluntary and intelligent because Zavala had discussed the admission with his attorney, had pled guilty before, and had just watched a six-day jury trial on the substantive offense. During the trial, Zavala’s attorney cross-examined multiple witnesses and explicitly advised the jury that Zavala had “an absolute constitutional right not to testify.”
III. Analysis
The threshold question is whether to classify the case as one of incomplete advisement or silent record.
A. Principles Used to Classify Cases
“Truly silent-record cases are those that show no express advisement or waiver of the Boykin-Tahl rights before a defendant’s admission of a prior conviction.” (Mosby, supra, 33 Cal.4th at p. 361.) Included in this group are cases that have only a fleeting reference to a jury trial but no other advisement. (See id. at p. 362, citing People v. Johnson (1993) 15 Cal.App.4th 169, 177.)
In comparison, a case of incomplete advisement occurs when the defendant is advised of his or her right to a jury trial on the prior conviction but not of the right to remain silent or the right to confront witnesses. (See Mosby, supra, 33 Cal.4th at p. 363.) The jury trial advisement need not occur during the plea colloquy, as long as it is reflected elsewhere in the record. (See id. at pp. 362-363, citing People v. Carroll (1996) 47 Cal.App.4th 892 [defendant advised of right to jury in first trial, which resulted in mistrial, and asked in second trial if he wanted to waive “right to a trial”]; see also People v. Hinton (2006) 37 Cal.4th 839, 875, fn. 12 [advisements given outside the plea colloquy].)
For example, the Hinton court rejected a silent record contention where the defendant (1) said he discussed the matter with his attorney and understood the “‘effect and consequence’” of his admission, (2) was prepared to exercise his rights with respect to other special circumstance allegations, and (3) was present when the judge told the jury venire that a guilty verdict on the murder charge would require the jury to decide the truth of the special circumstances, including a prior murder conviction. (See People v. Hinton, supra, 37 Cal.4th at p. 875, fn. 12.)
B. Is the Record Silent on Boykin-Tahl Advisements?
The Attorney General argues this is not a silent record case and urges the court to infer voluntary and intelligent waiver from the totality of the circumstances. The Attorney General relies on the following facts: (1) The record supports an inference that Zavala discussed the admission with his attorney. (2) The probation report indicated that Zavala’s 2001 conviction was based on a no contest plea. (3) Zavala admitted the conviction immediately after a six-day jury trial during which he exercised his rights regarding self-incrimination and witness confrontation. (4) Prior to accepting the plea, the trial court said, “The priors can be proved, it’s just the matter of going through the process.”
The relevance of the first three facts depends on whether we accept the statement that the “priors can be proved” by “going through the process” as an advisement on the right to a jury trial. This principle is best understood by comparing Mosby, which was affirmed, with People v. Stills (1994) 29 Cal.App.4th 1766, which was remanded. Mosby and Stills also involved (1) a record that implied the defendant had discussed the admission with his attorney, (2) a defendant with experience pleading guilty, and (3) a jury trial that preceded the admission. (See Mosby, supra, 33 Cal.4th at pp. 357-358, 364; Stills, supra, at p. 1769.) The key difference: the Mosby record showed an express advisement on the right to a jury trial but not the other two rights, while the Stills record was silent on advisements. (Mosby, at p. 358; Stills, at p. 1769.)
The Attorney General argues this court should infer Zavala understood the comment about “the process” as an advisement on the right to a jury trial, which would make the case more analogous to Mosby. The record does not support this inference.
Even if we infer an off-record conversation about the admission from defense counsel’s willingness to join the admission and the trial court’s comment, “I’ve been told [Zavala is] willing to admit the priors,” we have no way of knowing whether the conversation included advisements. Zavala never discussed his understanding of the rights waived, unlike the Hinton defendant who said he discussed the matter with his attorney and understood the “effect and consequence” of his admission. (People v. Hinton, supra, 37 Cal.4th at p. 875, fn. 12.) “In the same way that the presence of an attorney alone does not satisfy the Boykin-Tahl requirements [citation], we will not presume appellant was informed of his Boykin-Tahl rights in appellant’s conversation with his counsel.” (People v. Christian (2005) 125 Cal.App.4th 688, 698.)
Further, while Zavala did, indeed, have experience pleading no contest, he did not have experience admitting a strike. The 2001 robbery conviction to which he pled was his first strike.
Without an on-record indication that Zavala knew that “the process” for proving a prior conviction was the same as the process for proving the substantive offenses, we must conclude that the trial court’s statement was no more instructive than the fleeting reference to a jury trial that was deemed insufficient in People v. Johnson. (See Mosby, supra, 33 Cal.4th at p. 362, citing People v. Johnson, supra, 15 Cal.App.4th at p. 177 [classifying as near-silent on advisement the phrase, “‘[a]ll I want to know is whether you were convicted or whether or not you want a jury trial’”].) The trial court’s reference to “the process” was “so nearly silent [on advisement] as to be indistinguishable” from the silent-record cases. (Mosby, at p. 362.)
Consequently, “we cannot infer that in admitting the prior the defendant has knowingly and intelligently waived [the right to a jury trial] as well as the associated rights to silence and confrontation of witnesses.” (Mosby, supra, 33 Cal.4th at p. 362.) We reject the Attorney General’s contention that the admission was valid under the totality of the circumstances.
DISPOSITION
We reverse the judgment as to the sentence and remand for adjudication of the strike prior allegations, either by admission or trial.