People v. Mosby

• Decision Date: 08 July 2004
• Docket Number: No. S104862.,S104862.
• Citation: 92 P.3d 841,15 Cal.Rptr.3d 262,33 Cal.4th 353
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Clyde MOSBY, Defendant and Appellant.

15 Cal.Rptr.3d 262

92 P.3d 841

33 Cal.4th 353

The PEOPLE, Plaintiff and Respondent, v. Clyde MOSBY, Defendant and Appellant.

No. S104862.

Supreme Court of California.

July 8, 2004.

Elizabeth Campbell, Sacramento, under appointment by the Supreme Court, and Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Jo Graves, Assistant Attorney General, Stan A. Cross and Susan J. Orton, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, J.

Thirty years ago this court held that before accepting a criminal defendant's admission of a prior conviction, the trial court must advise the defendant and obtain waivers of (1) the right to a trial to determine the fact of the prior conviction, (2) the right to remain silent, and (3) the right to confront adverse witnesses. (In re Yurko (1974) 10 Cal.3d 857, 863, 112 Cal.Rptr. 513, 519 P.2d 561.) Proper advisement and waivers of these rights in the record establish a defendant's voluntary and intelligent admission of the prior conviction. (People v. Howard (1992) 1 Cal.4th 1132, 1178-1179, 5 Cal.Rptr.2d 268, 824 P.2d 1315 (Howard); North Carolina v. Alford (1970) 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162.)

When, immediately after a jury verdict of guilty, a defendant admits a prior conviction after being advised of and waiving only the right to trial, can that admission be voluntary and intelligent even though the defendant was not told of, and thus did not expressly waive, the concomitant rights to remain silent and to confront adverse witnesses? The answer is "yes," if the totality of circumstances surrounding the admission supports such a conclusion.

I

On April 13, 1999, defendant Clyde Mosby was arrested for selling a $20 piece of rock cocaine to an undercover police officer. He was charged with one count of selling cocaine (Health & Saf.Code, § 11352, subd. (a)), and it was alleged he had a prior felony conviction for possession of a controlled substance (Health & Saf.Code, § 11370, subds. (a) & (c)).¹

At trial, the prosecution offered three witnesses: Detective Chaplin, who bought the cocaine, described its purchase; Detective Reyes, who was present at the arrest, identified the rock of cocaine as the one he had seized; and chemist Edwin Smith testified that the rock contained cocaine base. Defendant's attorney cross-examined each detective. Defendant did not testify, although his codefendant did.

After the trial court learned that the jury had arrived at its verdict, the trial court asked defendant whether he wanted a jury trial on the bifurcated prior conviction allegation.

"The Court: The question is, should this jury return a guilty verdict as to Mr. Mosby, the hearing on whether it is true he did suffer such a prior conviction. Mr. Dawson [hereafter defense counsel].

"[Defense Counsel]: Your Honor, I've spoken with Mr. Mosby, and at this time he's willing to, first of all, waive jury on that issue. He will leave that in the hands of the court.

"But secondly, at [t]his time, I am in agreement that he will admit the enhancement, which essentially, absent unusual circumstances, makes him probation ineligible and allow the court to do what it will at sentencing if that becomes a necessary issue.

"The Court: Well, your understanding is he's willing to waive the jury?

"[Defense Counsel]: Waive the jury and actually admit the prior offense.

"The Court: We can deal with that afterwards.

"Mr. Mosby, it's alleged in the information that you were convicted of a felony violation, a drug offense, back on or about May 5th of '93, that's alleged in the information, so that if that's true, you were convicted on this charge, this present charge, it would make you ineligible for probation, do you understand that?

"The Defendant: Yes.

"The Court: You are entitled to have this jury, if they should find you guilty, you're entitled to have this jury determine the truth of the allegation that you suffered this prior felony conviction.

"You're entitled to have the jury hear that and make a decision on whether that's true or not.

"Do you understand that?

"The Defendant: Yes.

"The Court: Do you waive and give up your right to have this jury make a determination as to whether you suffered such a prior conviction?

"The Defendant: Yes.

"The Court: And you join in that, [defense counsel]?

"[Defense Counsel]: I do."

The jury then returned and delivered its verdict finding defendant guilty of selling cocaine. After discharging the jury, the court returned to the prior conviction allegation.

"The Court: [Defense counsel], since Mr. Mosby wants the court to hear that matter, or prepared to admit the prior —

"[Defense Counsel]: He's prepared to admit the prior.

"The Court: Mr. Mosby, can you understand that you are entitled — you already waived having the jury determine the truth of this prior felony conviction of yours that's alleged. You are ... entitled to have the court hear the matter, as well, to make a determination.

"Do you understand that?

"The Defendant: Yes.

"The Court: Do you waive and give up your right to have the court make that determination?

"The Defendant: Yes."

The court then read the allegation that on May 5, 1993 defendant was convicted of drug possession in violation of Health and Safety Code section 11350; defendant admitted that he had been so convicted. Defendant was sentenced to a prison term of three years and eight months.

Defendant appealed, contending that the trial court's incomplete rights advisements rendered his admission of the prior conviction invalid. The Court of Appeal disagreed. It said: "It would frankly be absurd for this court to find that the defendant's admission of his prior conviction — a prior plea of guilty — was not voluntary and intelligent when he knew he did not have to admit but could have had a jury or court trial, had just participated in a jury trial where he had confronted witnesses and remained silent, and had experience in pleading guilty in the past, namely, the very conviction that he was now admitting."

Defendant petitioned for review in this court, arguing that the Court of Appeal's decision created a conflict with other Court of Appeal opinions. We granted review.

II

A. Our Decision in In re Yurko, supra, 10 Cal.3d 857

In Boykin v. Alabama (1969) 395 U.S. 238, 243 and footnote 5, 89 S.Ct. 1709, 23 L.Ed.2d 274, the United States Supreme Court explained that a defendant seeking to plead guilty is denied due process under the federal Constitution unless the plea is voluntary and knowing. "Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination.... [Citations.] Second, is the right to trial by jury. [Citation.] Third, is the right to confront one's accusers." (Id. at p. 243, 89 S.Ct. 1709.) In Boykin, the defendant pled guilty to five counts at a proceeding in which "the judge asked no questions of petitioner concerning his plea, and petitioner did not address the court." (Id. at p. 239, 89 S.Ct. 1709.) Given that truly "silent record," the high court refused to presume a knowing and voluntary waiver of these constitutional rights. (Ibid.) In the wake of Boykin, we held in In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, that "each of the three rights mentioned — self-incrimination, confrontation, and jury trial — must be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his guilty plea." (Id. at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449, italics added.)

Some five years later, in In re Yurko, supra, 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561, we adopted as a judicial rule of criminal procedure the requirement that the three Boykin-Tahl admonitions must also be given "before a court accepts an accused's admission that he has suffered prior felony convictions." (Id. at p. 863, 112 Cal.Rptr. 513, 519 P.2d 561, italics added.)

Of note here is a recent decision of the United States Supreme Court that the federal Constitution's right to a jury trial does not extend to the factual determination of whether a defendant has suffered a prior conviction. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435.) Nor does our state Constitution afford such a right. (People v. Epps (2001) 25 Cal.4th 19, 23, 104 Cal.Rptr.2d 572, 18 P.3d 2; see also People v. Sengpadychith (2001) 26 Cal.4th 316, 326, 109 Cal.Rptr.2d 851, 27 P.3d 739.) That right is purely statutory in origin. (Pen.Code, §§ 1025 [same jury that tried criminal charge must try prior conviction allegation], 1158; People v. Epps, supra, 25 Cal.4th at p. 23, 104 Cal.Rptr.2d 572, 18 P.3d 2.) When trial is required by statute, we shall assume for the purpose of this discussion that a defendant's due process trial rights, at least under our state Constitution, encompass the rights to remain silent and to confront witnesses. (Cal. Const., art. I, § 15.) Here, defendant was advised only of his right to trial, which he waived before admitting the prior conviction. Thus, we must decide whether, under the totality of the circumstances, defendant's admission was voluntary and intelligent despite the trial court's failure to advise defendant of the rights to remain silent and to confront witnesses.

B. Standard of Review for Yurko Error

For nearly two decades after our decision in In re Yurko, supra, 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561, lack of express advisement, and waiver, of all three Boykin-Tahl rights was viewed as error requiring automatic reversal. (See People v. Wright (1987) 43 Cal.3d 487, 493-495, 233 Cal.Rptr. 69, 729 P.2d 260; In re Ibarra (1983) 34 Cal.3d 277, 283, fn. 1, 193 Cal.Rptr. 538, 666 P.2d 980; In re Ronald E. (1977) 19 Cal.3d...