People v. Gandy

• Decision Date: 03 August 2017
• Docket Number: B264452
• Citation: 221 Cal.Rptr.3d 633,13 Cal.App.5th 1288
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Anthony Edward GANDY, Defendant and Appellant.

13 Cal.App.5th 1288

221 Cal.Rptr.3d 633

The PEOPLE, Plaintiff and Respondent,

v.Anthony Edward GANDY, Defendant and Appellant.

B264452

Court of Appeal, Second District, Division 4, California.

Filed August 3, 2017

Sunnie L. Daniels, Manhattan Beach, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler and Lance E. Winters, Assistant Attorneys General, Shawn McGahey Webb and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.

EPSTEIN, P.J.

Defendant Anthony Edward Gandy appealed following his no contest plea, in which he admitted a prior strike based on three out-of-state felony convictions. Before entering his plea defendant moved to dismiss his prior convictions, which resulted from his no contest plea in 2001 to burglary and robbery charges in Oregon, on the ground they were obtained in violation of his constitutional rights under Boykin – Tahl .¹ On appeal, defendant argued he did not voluntarily and intelligently waive his rights when he pleaded no contest in the Oregon proceeding, and therefore the prior convictions could not be used to enhance his sentence. In our original opinion, we held that defendant could not collaterally attack his prior out-of-state convictions because " Tahl –like requirements" did not operate in Oregon at the time of his prior pleas. (See People v. Green (2000) 81 Cal.App.4th 463, 471, 96 Cal.Rptr.2d 811 ( Green ).) We also held, in the alternative, that defendant's plea was voluntary and intelligent under the totality of the circumstances.

In his petition for rehearing defendant argued that Oregon's plea requirements are substantially similar to those of California under Tahl and its progeny—specifically, both jurisdictions require express, on-the-record admonitions and waiver of rights but permit reliance on a validly executed waiver form. Defendant also argued that our previous opinion relied on inapplicable authority in finding that his plea was voluntary and intelligent. We granted rehearing and directed counsel to file supplemental briefs. The People agreed that Oregon had Tahl -like requirements and hence defendant was permitted to collaterally attack his prior convictions, but maintained the judgment should nevertheless be affirmed on our alternative holding. After reconsidering these issues, we conclude defendant may collaterally attack his prior convictions but the judgment should be affirmed because his Oregon plea was voluntary and intelligent under the totality of the circumstances.

FACTUAL AND PROCEDURAL SUMMARY

The Los Angeles District Attorney charged defendant by information in December 2011 with seven counts: dissuading a witness by force or threat ( Pen. Code, § 136.1, subd. (c)(1) ),² assault with a semiautomatic firearm (§ 245, subd. (b)), possession of a firearm by a felon (§ 12021, subd. (a)(1)), possession of ammunition (§ 12316, subd. (b)(1)), sale and transportation of a controlled substance ( Health & Saf. Code, § 11379, subd. (a) ), possession for sale of a controlled substance ( Health & Saf. Code, § 11378 ), and leaving the scene of an accident ( Veh. Code, § 20001, subd. (a) ). Three prior felony convictions were alleged as strikes (§§ 667, subds. (b)-(i), 1170.12, subd. (a)-(d)) and as prior serious felonies (§ 667, subd. (a)(1)). Enhancements for personal use of a firearm also were alleged. (§§ 665, subd. (c), 1192.7, subd. (c), 12022.5, subd. (a).) Defendant pleaded not guilty and denied the special allegations.

In April 2012, defendant moved to dismiss the alleged 2001 prior Oregon felony convictions, which resulted from his no contest plea to two counts of burglary and one count of robbery. He argued the prior convictions could not be used to enhance his sentence because he had not been expressly advised of nor waived his rights, as required by Boykin – Tahl and Oregon law. He cited the relevant Oregon statute, which provides: " ‘(1) The court shall not accept a plea of guilty or no contest ... without first addressing the defendant personally and determining that the defendant understands the nature of the charge. [¶] (2) The court shall inform the defendant: (a) That by a plea of guilty or no contest the defendant waives the right: [¶] [ (A) ] To trial by jury; [¶] [ (B) ] Of confrontation; and [¶] [ (C) ] Against self-incrimination." ( Or. Rev. Stat. § 135.385.) As exhibits to his motion to dismiss, defendant attached the Oregon superseding indictment, his signed plea petition, a transcript of the plea and sentencing hearing, and his own declaration.

The plea petition was on a two-page form including half a page for defense counsel's certification. Paragraph 6 states: "I understand that I am not required to plead guilty or no contest and may plead not guilty if I choose. If I plead not guilty, I understand I am entitled to a speedy trial before a jury of my peers; ... that I have an absolute right to confront any witness that would testify against me and cross examine such witness; [and] that I need not take the witness stand or give any testimony against myself." Paragraph 11 states: "I have taken no drink nor anything else which would in any way [impair] my judgment at this time, and I feel th[at] I am now fully alert and that in executing this petition I am doing so knowingly and voluntarily." Defendant signed and dated the petition. His attorney certified that he believed "the statements, representations and declarations made by Defendant in the foregoing petition are in all respects accurate and true." His attorney also certified "[t]hat in my opinion the Defendant's plea is voluntarily and understandingly made."

The transcript of the plea and sentencing hearing indicates that the Oregon trial court had ratified a plea bargain agreement and defendant tendered the plea petition. The transcript includes the following colloquy:

Judge: Mr. Gandy uh, I see that you and Mr. Bain [defense counsel] have both signed this written plea petition. Did you in fact sign this on November the 14th?

Gandy: Yes sir.

Judge: Did you have a chance to read through it carefully and discuss it with Mr. Bain before you signed it[?]

Gandy: Yes I did.

Judge: Any questions about what it says or what you are giving up by entering this plea?

Gandy: No.

In his declaration dated March 5, 2012, defendant stated that his Oregon attorney told him to sign the plea petition, did not read each word and paragraph to him, did not specifically advise him of paragraph 6, and did not advise him that he was waving his right to a jury trial, the right to confront witnesses, and the privilege against self-incrimination when he pleaded guilty.

In June 2012, the California trial court held a hearing on defendant's motion to dismiss the prior convictions. The prosecutor argued the Boykin – Tahl requirements were satisfied because the plea petition advised defendant of his constitutional rights and included his acknowledgment that the plea was executed "knowingly and voluntarily." Defense counsel countered that the plea petition failed to specify which rights defendant was waiving; and defendant did not expressly waive his Boykin – Tahl rights when entering his plea in open court. The trial court took the matter under submission.

The court issued a minute order several days later denying defendant's motion. The order explained: "Although Gandy received incomplete Boykin / Tahl advisement in his Oregon case according to the standard set in [ People v. Mosby (2004) 33 Cal.4th 353, 15 Cal.Rptr.3d 262, 92 P.3d 841 ( Mosby ) ] due to the lack of clear and on the record enumeration of his rights, the California Supreme Court has held in [ Garcia v. Superior Court (1997) 14 Cal.4th 953, 966, 59 Cal.Rptr.2d 858, 928 P.2d 572 ( Garcia ) ] that a motion to dismiss due to the defense counsel['s] ineffective advice should not be granted where a defendant faces current prosecution with a noncapital offense. In this instance, the case law supports denying defendant's motion to dismiss prior convictions."

In August 2014, the district attorney filed an amended information, which added a new count for possession of a controlled substance with a firearm ( Health & Saf. Code, § 11370.1, subd. (a) ). Defendant withdrew his plea of not guilty as to the counts for assault with a semiautomatic firearm (§ 245, subd. (b)) and possession of a controlled substance for sale ( Health & Saf. Code, § 11378 ) pursuant to a plea agreement. He entered a no contest plea, and admitted that he personally had used a firearm (§ 12022.5, subd. (a)) and previously had been convicted of one prior strike (§§ 667, subds. (b)-(i), 1170.12, subd. (a)-(d)).

Defendant was sentenced in May 2015 to a total term of 17 years and four months in state prison. He filed a notice of appeal and request for a certificate of probable cause, which the trial court granted.

DISCUSSION

I

"In [ Boykin ] the United States Supreme Court determined that a defendant who pled guilty could attack the ensuing conviction on the ground the record did not affirmatively establish a knowing and intelligent waiver of certain constitutional rights—the right to a jury trial, the right to confront witnesses, and the privilege against self-incrimination. [Citation.] Just months later, the California Supreme Court addressed the same issue in [ Tahl ]. Again, the defendant alleged his guilty plea was not made voluntarily or with a complete understanding of its consequences. The Tahl court, bound by Boykin , set forth the additional requirement that the record clearly state that the defendant specifically and expressly waived each of the three enumerated constitutional rights. [Citation.] Both Tahl and Boykin involved direct challenges on an appeal from the contested conviction." ( Green , supra , 81 Cal.App.4th at p. 466, 96 Cal.Rptr.2d 811.)

"In People v. Sumstine (1984) 36 Cal.3d 909 [206 Cal.Rptr. 707, 687 P.2d 904] [ ( Sumstine ) ], the California Supreme Court considered whether a defendant,...