People v. Forrest

• Decision Date: 21 June 1990
• Docket Number: No. E006479,E006479
• Citation: 270 Cal.Rptr. 573,221 Cal.App.3d 675
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Walter FORREST, Defendant and Appellant.

Page 573

270 Cal.Rptr. 573

221 Cal.App.3d 675

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Walter FORREST, Defendant and Appellant.

No. E006479.

Court of Appeal, Fourth District, Division 2, California.

June 21, 1990.

Certified for Partial Publication ^*

As Modified on Denial of Rehearing

July 20, 1990.

Review Denied Sept. 12, 1990.

[221 Cal.App.3d 676] Peter A. Estern, San Jose, under appointment by the Court of Appeal, for defendant and appellant.

[221 Cal.App.3d 677] John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Frederick R. Millar, Jr. and Robert M. Foster, Supervising Deputy Attys. Gen., for plaintiff and respondent.

OPINION

HOLLENHORST, Acting Presiding Justice.

Pursuant to a plea agreement, defendant pled guilty before a magistrate (Pen.Code, § 859a) to two counts of robbery (Pen.Code, § 211), admitted the allegations that, in connection with each robbery, defendant used a dangerous weapon (Pen.Code, § 12022, subd. (b)), admitted the truth of two alleged prior serious felony convictions (Pen.Code, § 667, subd. (a)) and admitted that he had served a prior prison term (Pen.Code, § 667.5, subd. (b)). ¹ After defendant's motion to withdraw his guilty plea was denied, the trial court sentenced defendant to state prison for 15 years, in accordance with the terms of the plea agreement.

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 to 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

The federal Constitution requires that, in order for a guilty plea to be knowing and voluntary, it must be based on an express and knowing waiver of the defendant's Constitutional right to a jury trial, to confront witnesses and against self-incrimination. (Boykin v. Alabama (1969) 395 U.S. 238, 242-244, 89 S.Ct. 1709, 1711-1713, 23 L.Ed.2d 274; In re Tahl (1969) 1 Cal.3d 122, 130-131, 81 Cal.Rptr. 577, 460 P.2d 449.) It is error, reversible per se, to fail to advise and obtain a waiver of any of these three rights. (In re Tahl, supra, 1 Cal.3d at p. 130, 81 Cal.Rptr. 577, 460 P.2d 449; see In re Ibarra (1983) 34 Cal.3d 277, 283, fn. 1, 193 Cal.Rptr. 538, 666 P.2d 980.)

Our review of the transcript of the Penal Code section 859a proceeding reveals that the magistrate did expressly advise defendant of his constitutional rights, including the right to a jury trial. ³ The record also reflects that defendant expressly waived each of these rights. ⁴ Given these advisements and waivers, we can only interpret defendant's claim to mean that before accepting a guilty plea and admissions of prior convictions in a single plea proceeding, the magistrate must expressly and separately advise defendant of his right to a jury trial on the prior convictions. We find no direct authority for this contention.

Defendant relies on People v. Luick (1972) 24 Cal.App.3d 555, 101 Cal.Rptr. 252 and People v. Laury (1989) 209 Cal.App.3d 713, 257 Cal.Rptr. 480 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 an 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 separate 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 are aware of only two cases, neither of which are cited by the parties, which imply that separate advisement and waiver of rights is required where defendant, in a single proceeding, enters a guilty plea which includes admissions of prior conviction allegations. In People v. Bell (1981) 118 Cal.App.3d 781, 173 Cal.Rptr. 669, Division One of this Court, in reliance on Bunnell v. Superior Court (1975) 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086, reversed a judgment based on a guilty plea which included an admission of a prior conviction where the record did not reflect clearly that defendant had been advised of and waived his right to a jury trial. The Bell court also held that, "The Bunnell mandate applies not only to guilty pleas, but to admissions of prior convictions. (See In re Yurko (1974) 10 Cal.3d 857 [112 Cal.Rptr. 513, 519 P.2d 561]....) Here, however, the sentencing court failed to advise Bell of any of the three rights he had in connection with the prior conviction allegation, nor did it solicit from him a waiver of those rights. His admission of the conviction as well as his guilty plea to the robbery must be voided. [Citation.]" (People v. Bell, supra, 118 Cal.App.3d at p. 785, 173 Cal.Rptr. 669, fn. omitted.)

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 conviction except to obtain defendant's admission of the allegation. (See People v. Bell, supra, 118 Cal.App.3d at pp. 783-784, 173 Cal.Rptr. 669.) 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 plea 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 advisement 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 (1975) 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086 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 Penal Code section 12022, subdivision (a). The Court specifically stated, albeit in a footnote, that "We reject defendant's contention that he was entitled to separate advisements on the arming allegations, as nothing in defendant's plea separated them from the substantive offenses. (Compare People v. Casarez (1981) 124 Cal.App.3d 641 ...; People v. Bell (1981) 118 Cal.App.3d 781, 785 ....)" (People v. Wright, supra, 43 Cal.3d, at p. 493, fn. 2, 233 Cal.Rptr. 69, 729 P.2d 260.)

We find the Court's analysis in Wright regarding the arming allegations 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 of 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, 173 Cal.Rptr. 669. 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...