People v. Everts, H031354 (Cal. App. 6/3/2008)

• Decision Date: 03 June 2008
• Docket Number: H031354
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. FREDERICK WILLIAM EVERTS, Defendant and Appellant.

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THE PEOPLE, Plaintiff and Respondent, v. FREDERICK WILLIAM EVERTS, Defendant and Appellant.

H031354

Court of Appeal of California, Sixth Appellate District.

June 3, 2008

NOT TO BE PUBLISHED

Appeal from the 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)),¹ 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).

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).² 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.)

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.³

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 .) "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 [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 [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 guilty⁴ and the submission in effect gave up the privilege against self-incrimination (see People v. Robertson (1989) 48 Cal.3d 18, 39-40).

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 , citing Boykin, supra, 395 U.S. at p. 242 ; see also Brady v. United States, supra, 397 U.S. at pp. 747-748 .)" (Id. at p. 1177.)

Howard, supra, 1 Cal.4th 1132, 1178 explicitly "adopt[ed] the federal test in place of the rule that the...