People v. Lizarraga

• Decision Date: 11 December 1974
• Docket Number: Cr. 7557
• Citation: 118 Cal.Rptr. 208,43 Cal.App.3d 815
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. William R. LIZARRAGA, Defendant and Appellant.

Page 208

118 Cal.Rptr. 208

43 Cal.App.3d 815

The PEOPLE of the State of California, Plaintiff and Respondent, v. William R. LIZARRAGA, Defendant and Appellant.

Cr. 7557.

Court of Appeal, Third District, California.

Dec. 11, 1974.

As Modified Dec. 11, 1974.

Hearing Denied Feb. 26, 1975.

Evelle J. Younger, Atty. Gen. by Robert D. Marshall and Paul Bishop, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

Alfred Wright, Santa Clara, for defendant and appellant.

FRIEDMAN, Acting Presiding Justice.

An amended information charged defendant with selling heroin (Health & Saf.Code, § 11352) and also charged a prior conviction of the same offense. Represented by counsel, defendant waived a jury trial, and a date was set for trial before the court, sitting without a jury. On the trial date he appeared and, through counsel, expressed readiness to admit the prior conviction. He was then tried and found guilty. He appeals from the judgment.

Defendant charges constitutional infirmity of the trial court's recitation of the rights he was waiving by admitting the prior conviction. We review the trial court's recitation in the light of the general rule that an intelligent and effective admission of a prior conviction does not occur unless the trial court 'specifically and expressly' informs a defendant that his admission is a waiver of three constitutional privileges--the privilege against self-incrimination, the right to trial by jury and the right to confront one's accusers. (In re Yurko, 10 Cal.3d 857, 861--863, 112 Cal.Rptr. 513, 519 P.2d 561; In re Foss, 10 Cal.3d 910, 930, 112 Cal.Rptr. 649, 519 P.2d 1073.) Additionally, the court must inform the defendant of the prior conviction's effect upon his sentence and parole eligibility. (In re Yurko, supra, 10 Cal.3d at p. 864, 112 Cal.Rptr. 513, 519 P.2d 561.)

In this case the trial court conducted a discussion with the apparent design of apprising the defendant, in practical terms, of the effect of his admission. The judge, however, used none of the standard constitutional terminology. He did not, for example, employ terms such as 'self-incrimination' and 'confrontation.' The significant portions of the judge's admonitions are quoted in the margin. ¹

The Yurko and Foss decisions had their antecedents in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and In re Tahl, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449. The requirement for Specific and Express enumeration was articulated in Tahl, 1 Cal.3d at page 132, 81 Cal.Rptr. 577, 460 P.2d 449. We do not interpret the Tahl opinion as an ineluctable demand for literal constitutional terminology. Significantly, the Tahl opinion permits avoidance of 'the recitation of a formula by rote' and calls for 'direct evidence' that the accused was aware of his rights. (Id. at p. 132 81 Cal.Rptr. 577, 460 P.2d 449.) We interpret Tahl to permit recitation in nonlegalistic terms comprehensible to a layman unschooled in legalistic verbiage, if only it is specific. The recitation suffices if it communicates to the defendant the essential character of the constitutional privileges in lay language, provided the message does not require resort sort to inference.

The judge did not in so many words tell defendant that he was waiving his Fifth Amendment privilege against self-incrimination. The essence of the privilege is authoritatively described in Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653: 'Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth.' By telling defendant that he had a right to demand a trial at which the prosecution would be required to prove the prior conviction, the trial judge effectively conveyed the essential message of the privilege against self-incrimination.

The judge told defendant that his admission of a prior conviction would be a waiver of his right to have a trial on that issue, but did not mention 'jury' or refer to a 'right to trial by jury.' The procedures laid down in the Boykin-Tahl-Yurko-Foss concatenation were formulated in the context of the accused's yet unfulfilled right to a jury trial. Here the procedural context differs, because the accused had already waived a jury.

A defendant's waiver of jury trial expresses his consent to a trial of all issues, including a charged prior conviction, before the court sitting without a jury. (People v. Berutko, 71 Cal.2d 84, 94, 77 Cal.Rptr. 217, 453 P.2d 721; see also, Pen.Code, § 1025.) When the present defendant appeared for trial, no jury panel stood in the wings. The proceedings occurred as the prelude to an impending trial of all issues (including the charge of prior conviction) before the judge alone. Under these circumstances, there was no reason to inform the accused that he was about to waive for a second time a right already waived. His admission of the prior conviction would be a waiver of his residual right to a nonjury trial on that issue. After an effective waiver of jury trial, the Boykin-Tahl-Yurko-Foss requirements are satisfied by an admonition that the concession will be a waiver of the right to a trial. Thus the judge effectively described the second right defendant was waiving.

The trial judge did not in so many words tell defendant that he was waiving 'the privilege of confrontation' or 'the right to confront his accusers.' In a general way the Sixth Amendment right of confrontation is the right of an accused to meet the witnesses against him face-to-face and to cross-examine them. (Pointer v. Texas, 380 U.S. 400, 403--404, 85 S.Ct. 1065, 13 L.Ed.2d 923.) Jurists and commentators debate whether its prime purpose is to assure cross-examination or to prevent hearsay, and if the latter, what kinds of hearsay. (California v. Green, 399 U.S. 149, 156--160, 90 S.Ct. 1930, 26 L.Ed.2d 489 (per White, J.), 172--187 (per Harlan, J.), 192--194 (per Brennan, J.); People v. Green, 70 Cal.2d 654, 660--661, 75 Cal.Rptr. 782, 451 P.2d 422; People v. Johnson, 68 Cal.2d 646, 651--657, 68 Cal.Rptr. 599, 441 P.2d 111; People v. Pierce, 269 Cal.App.2d 193, 202, fn. 4, 75 Cal.Rptr. 257; Read, The New Confrontation--Hearsay Dilemma, 45 So.Cal.L.Rev. 1--50.) Eventually one winds up with the notion that the precise components and specific demands of the confrontation guaranty must be discerned case-by-case. (Read, Op. cit., p. 48.) In fashioning a lucid description of the confrontation privilege for a lay defendant who has expressed a preliminary desire to admit a prior conviction, mindfulness of the mechanics of trial is indispensable.

When the accused challenges a prior conviction, the state bears the burden of proving it beyond a reasonable doubt. (In re Yurko, supra, 10 Cal.3d at p. 862, 112 Cal.Rptr. 513, 519 P.2d 561.) The state may prove the conviction prima facie by introducing in evidence a certified copy of a prison record, a certified copy of court minute orders or an abstract of the judgment. (Pen.Code, § 969b; People v. Hill, 67 Cal.2d 105, 121--122, 60 Cal.Rptr. 234, 429 P.2d 586; People v. Bradley, 3 Cal.App.3d 273, 275--276, 83 Cal.Rptr. 234; People v. Spearman, 1 Cal.App.3d 898, 905, 82 Cal.Rptr. 277.) All these documents are hearsay but admissible under exceptions to the hearsay rule. The recorders of these entries are not in court and not available for cross-examination. ²

Despite its hearsay character and notwithstanding the unavailability of witnesses, documentary proof of a prior conviction does not violate the confrontation guaranty. (People v. Bryan, 3 Cal.App.3d 327, 345, 83 Cal.Rptr. 291; People v. Coyle, 88 Cal.App.2d 967, 978, 200 P.2d 546 (cert. den. 337 U.S. 909, 69 S.Ct. 1042, 93 L.Ed. 1721); People v. Purcell, 22 Cal.App.2d 126, 132, 70 P.2d 706; People v. Russell, 131 Cal.App. 646, 21 P.2d 959.) The rationale is that the confrontation rule permits some limited varieties of hearsay evidence (Pointer v. Texas, supra, 380 U.S. at p. 407, 85 S.Ct. 1065) including public documents (Dowdell v. United States, 221 U.S. 325, 329--330, 31 S.Ct. 590, 55 L.Ed. 753; 23 C.J.S. Criminal Law § 1000). Because the issue is provable by documents, advice that the defendant's waiver will cost him a face-to-face meeting with the prosecution's flesh-and-blood witnesses generates far more confusion than clarity.

The procedural agenda for trying a charge of prior conviction opens with the prosecution's offer of the record of conviction. A second stage is reached when and if the defendant assumes the burden of producing defensive evidence, e.g., to show constitutional infirmity; if he assumes that burden, a third stage is reached at which the prosecution may offer rebuttal evidence. (People v. Coffey, 67 Cal.2d 204, 217, 60 Cal.Rptr. 457, 430 P.2d 15; People v. Nugent, 18 Cal.App.3d 911, 915, 96 Cal.Rptr. 209.) Only in the third stage is there any...