THE PEOPLE, Plaintiff and Respondent, v. ROBERT WALTER FORREST, Defendant and Appellant.
No. E006479
Fourth Dist., Div. Two.
June 21, 1990.
A petition for a rehearing was denied July 16, 1990, and appellant‘s petition for review by the Supreme Court was denied September 12, 1990.
221 Cal. App. 3d 675
[Opinion certified for partial publication.*]
Peter A. Estern, under appointment by the Court of Appeal, for Defendant and Appellant.
OPINION
HOLLENHORST, Acting P. J. Pursuant to a plea agreement, defendant pled guilty before a magistrate (
Defendant asserts three issues in this appeal from the judgment. We conclude that each of defendant‘s contentions lacks merit and affirm the judgment.
I.
ADVISEMENT AND WAIVER OF CONSTITUTIONAL RIGHTS
Defendant‘s first claim is that the magistrate who took defendant‘s guilty plea failed tо advise defendant expressly of defendant‘s constitutional right to a jury trial on the issue of the prior convictions and failed to obtain an express waiver of that right from defendant. The Attorney General contends that a “full and fair reading of the record” reflects that defendant was properly advised of, and knowingly waived, defendant‘s right to a jury trial on both the current charges and the prior convictions.2
Our review of the transcript of the
Defendant relies on People v. Luick (1972) 24 Cal.App.3d 555 [101 Cal.Rptr. 252] and People v. Laury (Cal.App.) to support the contention that defendant must expressly be advised of and waive the right to a jury trial on the prior convictions. The Supreme Court held in In re Yurko (1974) 10 Cal.3d 857, 862-863 [112 Cal.Rptr. 513, 519 P.2d 561] that the Boykin and Tahl requirements of an express advisement and knowing waiver of defendant‘s constitutional rights apply to admissions of prior convictions. Consequently, we cannot and do not dispute defendant‘s assertion as аn accurate statement of the law.
Defendant‘s analysis fails, however, in the application of the legal principle to the facts in this case. The critical fact which distinguishes Yurko, and the cases relied on by defendant, from this case is that in each of those cases, the prior conviction and the current substantive offense to which the prior conviction related were each addressed in sepаrate proceedings. In Yurko, the defendant admitted the prior convictions, on the advice of his attorney, before the start of a jury trial on a burglary charge.5 There is nothing in Yurko or the cases cited by defendant which requires a separate advisement and waiver of rights where, as here, defendant in a single proceeding pleads guilty to a current charge and also admits that he suffered prior convictions.6
We find that the facts in Bell are distinguishable from the facts in this case. Although the Bell court engaged in only a minimal recitation of the facts and circumstances surrounding the details of defendant‘s plea, it appears the court was particularly influenced by the fact that the trial court, in advising defendant of his rights and obtaining a waiver thereof, repeatedly only referred to defendant‘s current, substantive burglary offense. The trial court did not mention the prior conviсtion except to obtain defendant‘s admission of the allegation. (See People v. Bell, supra, 118 Cal.App.3d at pp. 783-784.) The manner in which the trial court in Bell administered the advisement had the effect, in our opinion, of implicitly separating the burglary charge from the prior conviction allegation. In this case, however, both the advisement and waiver of defendant‘s constitutional rights were preceded by a recitation of the pleа bargain which included express reference to both the current offenses and the prior conviction allegations. We therefore decline to follow Bell here. We further find that Bell incorrectly interprets the requirements of Yurko to the extent Bell implies that a separate advisement is always required where defendant, in a single plea proceeding, pleads guilty to a current offense and admits a prior conviction.
The second case which indirectly addresses the separate аdvisement issue is People v. Wright (1987) 43 Cal.3d 487 [233 Cal.Rptr. 69, 729 P.2d 260], in which the Supreme Court held that where defendant submits to a court trial based on the transcript of the preliminary hearing, and the submission does not amount to a slow guilty plea, failure to advise defendant of defendant‘s constitutional rights violates the requirements of Bunnell v. Superior Court, supra, 13 Cal.3d 592, but reversal is required only if prejudice is demonstrated. In reaching this conclusion, the court rejected the contention that the Constitution requires separate advisement and waiver of rights with respect to allegations that defendant was armed within the meaning of
We find the court‘s analysis in Wright regarding the arming allegatiоns equally applicable to the prior conviction allegations in this case. We hold that where there is nothing in the manner in which the plea is taken which actually or in effect separates the substantive offense from the prior conviction allegation, a single express advisement and waiver of defendant‘s constitutional rights is sufficient under Boykin, Tahl and Yurko. In this case, defendant‘s plea to the substantive offenses and admission оf the prior convictions occurred in a single proceeding and were not actually separated in time. Nor did the magistrate separate the substantive offenses from the prior conviction allegations, in effect, by the manner in which the advisement was given and the waiver was taken, as was the case in People v. Bell, supra, 118 Cal.App.3d 781. Accordingly, we conclude that the single express advisement was sufficient in this case to inform defendant of each of his constitutional rights, including his right to a jury trial, with respect to both the guilty pleas to the substantive offenses and the admissions of the prior convictions and that defendant, as reflected in the record, knowingly waived each of those rights.
II., III.*
DISPOSITION
The judgment is affirmed.
Dabney, J., concurred.
TIMLIN, J.—I concur.
The majority‘s conclusion that, in this particular case, there was nothing in the manner in which the magistrate accepted the pleas of guilty to the
I concur reluctantly, however, in the holding that defendant was properly advised of his basic constitutional rights regarding those sentence enhancement allegations which he admitted to be true, and that as to such allegations he expressly waived those rights intelligently, knowingly and voluntarily.
If judges and magistrates follow the lead in the majority opinion, defendants who are admitting enhancements simultaneously with pleas of guilty to substantive charges in the same complaint or information will not be separately advised that, as to each enhancement: (1) They are entitled to at least the three basic constitutional rights (right against self-incrimination, right to confront and cross-examine adverse witnesses and right to jury trial); and (2) an admissiоn of such operates to waive those rights. They will be further deprived of a judicial determination whether as to each enhancement he/she understands those rights and is knowingly, intelligently and voluntarily waiving such by admitting the allegations.
It is my view that each enhancement (if found true) has at least the same punitive effect as each substantive charge in the same information or complaint. That is, if an enhancement is found true, the аccused suffers the threat of loss of her/his fundamental right of liberty by imprisonment. Actually, in many instances, the threat is more certain and greater because some sentence enhancements result in mandatory incarceration and a longer sentence than the charges to which they may relate. (In re Yurko (1974) 10 Cal.3d 857, 862 [112 Cal.Rptr. 513, 519 P.2d 561].) These serious consequences demand individual advisements and findings by the judge or magistrate respecting enhancemеnt allegations.
Moreover, the Supreme Court‘s footnote 2 in People v. Wright, supra, that separate advisements (and presumably waivers of such rights) need not be made and accepted as to enhancements which are not separated from the charged substantive offenses appears to conflict with the constitutional principles mentioned in In re Yurko, supra, 10 Cal.3d at page 863:
”Boykin holds that because of the significant constitutional rights at stake in extracting from an accused a guilty plea a cоurt must exercise the ‘utmost solicitude’ of which it is capable in canvassing the matter with the accused to make sure he has a full understanding of what is being waived. Because of the significant rights at stake in obtaining an admission of the truth of allegations of prior convictions, which rights are often of the same magnitude as in the case of a plea of guilty, courts must exercise a comparable solicitude in extracting an admission of the truth of alleged prior convictions. Although the issue was not before the Supreme Court in Boykin nor before us in Tahl, it is nevertheless manifest that an accused is entitled to be advised of those constitutional rights waived by him in making such an admission. As an accused is entitled to a trial on the factual issues raised by a denial of the allegation of prior convictions, an admission of the truth of the allegation necessitates a waiver of the same constitutional rights as in the case of a plea of guilty. The lack of advice of the waivers so to be made, insofar as the record fails to demonstrate otherwise, compels a determination that the waiver was not knowingly and intelligently made.
“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 аs 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.” (Italics added, fns. omitted.)
The California Supreme Court may wish to clarify whether its statements in footnote 2 of People v. Wright, supra, are consistent with In re Yurko, supra, and have the meaning as attributed by the majority.
It appears tangentially appropriate at this point to refer to the following statement in People v. Ray (1990) 220 Cal.App.3d 943 [269 Cal.Rptr. 682, 686] at page 950, which holds that the failure to advise a defendant that by admitting an alleged prior he gave up his right against self-incrimination was reversible error:
“It may be that Yurko is due for reexamination. Perhaps it should not be presumed that a defendant asked to admit a prior, who has either had a trial on the substantive offense, is shortly to have such a trial or has just pled guilty after full advisеment, is so ignorant of his basic trial rights as to render his admission involuntary if additional advisements are not made. It is also possible that for the overwhelming majority of defendants facing an enhancement for prior conviction, the only real concern is the length of time by which the prison term will be increased if the allegation is admitted
or proved. Perhaps the full advisements mandated by Yurko are only a matter of form for most defendants, and reversal in cases such as the present one a waste of trial court time. Unless and until such questions are reexamined by our high court, however, intellectual honesty requires that we not subvert the clear mandate of Yurko by misapplying the rule of harmless error. At present the problem may be prevented by the trial courts, which should exercise care to ensure that these basic advisements and waivers are fully executed. “In obedience to a long line of decisions from the federal and statе Supreme Courts, we conclude that constitutional Yurko error—the failure to obtain, on the record, knowing waivers of the constitutional trial rights before accepting a defendant‘s admission of prior convictions—is per se reversible error.” (Italics added.)
In the meantime, it is suggested that any judge or magistrate who receives an admission of an enhancement at the same time she/he accepts a guilty plea to a substantive charge specifically inform the defendant that he/she is entitled to the same constitutional rights regarding the enhancement as apply to the substantive charge, and that, by admitting such, she/he waives those rights. After such advice, the judicial officer should make findings respecting the defendant‘s understanding of such rights and that his/her admission will constitute a waiver of such. Finally, the judge or magistrate should recite further findings that such admissiоn and resulting waiver were made knowingly, intelligently and voluntarily by the defendant.
These limited additional procedural steps will not add any substantial burden on a recognizedly overworked criminal trial bench but they will be in accord with the spirit, if not the mandate, of the Boykin-Tahl-Yurko constitutional precepts.
A petition for a rehearing was denied July 16, 1990, and appellant‘s petition for review by the Supreme Court was denied September 12, 1990.
* See footnote, ante, page 675.