Pleas And Admissions [§EA-21]
Boykin-Tahl issues concerning the adequacy of plea advisements and waivers arise in two principal enhancement contexts. The first is where, during the current case, the defendant admits an enhancement prior. (In re Yurko (74) 10 C3d 857, 863-64 [112 CR 513].) The second is a defense motion to strike an enhancement prior, under People v. Sumstine (84) 36 C3d 909, 922 [206 CR 707], on the ground the defendant received inadequate advisements at the time of his plea in the prior case.
EA III(A) Admissions of Priors In Current Case [§EA-22]: Under Yurko, a defendant’s admission of an enhancement prior is subject to the same advisement and waiver requirements as a plea to a substantive offense. The defendant must be advised of the three key Boykin-Tahl rights (jury trial, privilege against self-incrimination, and confrontation) he will be giving up by his admission of the priors. He must also be advised of the penal consequences of admitting the enhancement.
Nonetheless, in People v. Howard (92) 1 C4th 1132, 1174-81 [5 CR2d 268]; the Supreme Court curtailed not only Yurko, but Tahl itself. Trial courts are still directed to advise defendants of the three Boykin rights and to elicit express on-the-record waivers of those rights. However, failure to adhere strictly to that advisement-and-waiver procedure will no longer automatically be considered federal constitutional error. While previous California Supreme Court opinions had suggested that omission of any of the three rights was reversible per se, Howard replaces that regimen with a loosely-defined “totality of the circumstances” analysis. An omission of an explicit advisement on one of the rights (e.g., self-incrimination, as in Howard itself) will not require reversal if the reviewing court is satisfied, from the “totality of the record” that the defendant’s plea or admission was “voluntary and intelligent.” Thus, in Howard, the Supreme Court divined that the defendant was actually aware of his privilege against self-incrimination and its application to the priors, despite the absence of any explicit advisement to that effect.
The most obvious casualties of Howard will be cases in which the court fully advised the defendant of all three Boykin rights, but failed to elicit an explicit waiver of one or more of the rights. Prior to Howard, some appellate opinions (particularly unpublished ones) took a surprisingly strict, literal view of Tahl and reversed where the defendant was only asked to acknowledge his “understanding” of the rights but did not, in so many words, “waive” or “give up” those rights. After Howard, defects of this kind are probably no longer briefable.
Even after Howard, reviewing courts will still set aside admissions of priors where the trial court wholly failed to comply with Yurko, such as by accepting the defendant’s admission of a prior without admonishing him of any of the three Boykin rights. (People v. Johnson (93) 15 CA4th 169, 177-78 [18 CR2d 650]; People v. Moore (92) 8 CA4th 411, 416-18 [10 CR2d 286] [in Moore, proper advisements and waivers of the Boykin rights did precede the court’s acceptance of the defendant’s admission of a second prior (Moore at 422)].) But the valid admission of the second prior did not cure the complete omission of advisements on the first one, even under the totality-of-circumstances analysis of Howard. (Id. at 416.)] Generally, it should still be possible to brief cases in which the court wholly omitted one of the required advisements, but Howard will pose a formidable (though not necessarily insurmountable) obstacle. In order to establish that the omission of one of the rights was prejudicial — i.e., that the admission was not “voluntary and intelligent” — appellate counsel should consider raising the advisement issue in a companion habeas corpus petition. Through the habeas petition, counsel can place before the appellate court a declaration from the defendant himself establishing that, in fact, he was not aware of the omitted right (such as confrontation or self-incrimination) or of its application to determination of the priors.
EA III(B) Challenging Pleas Underlying Priors — Sumstine [§EA-23]: In filing a Sumstine motion (or assessing the record of a Sumstine motion on appeal), counsel should first bear in mind that Howard, discussed above, is now the governing standard for the sufficiency of plea advisements and waivers. Under Sumstine and its progeny, it has always been more difficult to attack a prior plea on Boykin-Tahl grounds than to raise a similar challenge to the sufficiency of the plea advisements in the current case. (See generally Curl v. Superior Court (90) 51 C3d 1292, 1303-05 [276 CR 49].) It will be still more difficult now. The same considerations discussed above, in the context of enhancement admissions, will apply. Any plea colloquy which would pass muster for purposes of an appeal in the present case (e.g., full advisements but incomplete waivers) will also be sufficient to survive a Sumstine motion. (The U.S. Supreme Court’s first decision in this area underscores these difficulties. (Parke v. Raley (92) 506 US 20 [121 LEd2d 391; 113 SCt 517].) The Supreme Court upheld a set of Kentucky procedures for collateral challenges which included a series of burden shifting rules similar to those developed in California under the Sumstine and Curl decisions. In particular, the Kentucky rule required the state to prove the existence of the challenged conviction but accorded it a presumption of regularity and allocated to the defendant the burden of producing evidence of the constitutional invalidity of the prior. If the defendant successfully refuted the presumption of regularity, the burden would shift back to the state to prove the constitutionality of the prior. (Id. at 520; but cf. Curl at 1307 [defendant’s burden to prove constitutional invalidity of prior by preponderance standard].) In Parke the Supreme Court also agreed that the defendant’s prior experience in the criminal justice system could be considered in determining whether he knowingly waived his constitutional rights during a subsequent plea. (Parke at 526-27.) Thus Parke is likely to be viewed as a green light to review of Sumstine challenges under a totality of circumstances analysis, similar to that of Howard.)
Counsel must be especially attentive to developing a record adequate to support a Sumstine argument. Two potential pitfalls merit special attention.
EA III(B)(1) Transcripts Of The Prior Plea [§EA-24]: According to one case, it is the defendant’s burden, during the trial court proceedings, either to procure a reporter’s transcript of the prior plea or to show that no transcript is available. (People v. Vallejo (91) 1 CA4th 760, 763 [2 CR2d 413].) Vallejo holds that even where the defendant’s affidavit or testimony would otherwise be sufficient to state a prima facie case under Sumstine, the motion may be denied for failure to submit a plea transcript or to establish that none is available.
EA III(B)(2) Defendant’s Affidavit Or Testimony [§EA-25]: Counsel should also take particular care to ensure that the defendant’s own supporting affidavit (or testimony) includes all the averments necessary to support the Sumstine motion. While it’s debatable whether Sumstine itself takes this position, the appellate cases generally hold that it’s not enough to allege that the court failed to advise the defendant of a particular right. The defendant must further aver (1) that he was actually unaware of that right at the time of the prior plea, and (2) if he had been advised of it, he wouldn’t have pled. (People v. Cooper (92) 7 CA4th 593, 600-01 [8 CR2d 912]; People v. Harty (85) 173 CA3d 493, 503 [219 CR 85].) Particularly in light of Howard, an absence of proof of the former point (the defendant’s actual lack of knowledge) is likely to prove fatal to the Sumstine argument.
Obviously, the best time to develop a Sumstine claim is at the trial court level. Nonetheless, as with other issues, a determination that the current record is insufficient does not necessarily mean that appellate counsel should drop the Sumstine issue. Instead, counsel should consider ways of curing the gaps in the record. The most obvious solution (as with issues on enhancement admissions) is a habeas petition. Indeed habeas corpus would probably be the only means of remedying a defect in the affidavit supporting the Sumstine motion. Through the habeas petition, counsel could submit a new declaration from the defendant containing the additional averments required by cases such as Harty and Cooper. (The failure of the defense to submit a plea transcript (or to show that none was available) presents a more tricky question. One possibility is for appellate counsel to obtain the necessary plea transcript and ask the appellate court to take judicial notice of it. That approach has the virtue of avoiding the necessity of a separate writ petition. However, at least one appellate court has refused to take judicial notice of a plea transcript in that context, stating that review of the Sumstine issue on appeal must be confined to the record actually presented to the trial court. (People v. Johnson (90) 217 CA3d 978, 983 n 3 [266 CR 221].) While Johnson is not necessarily the last word on this point, counsel would be well advised also to file a writ petition including the plea transcript.
EA III(C) Admissions Of Other Enhancing Facts [§EA-26]: As Howard and Yurko confirm, for Boykin-Tahl purposes an admission of an enhancement prior is the equivalent of a guilty plea and is subject to the same advisement and waiver requirements. Nonetheless, there has been some dispute over the extent to which those principles apply to enhancing facts regarding other crimes which are not, strictly speaking, priors. (See People v. Adams (93) 6 C4th 570, 578-83 [24 CR2d 831], holding that stipulation to on-bail status is insufficient to require waiver of constitutional rights because all elements of the enhancement have not been admitted.)