People v. Wright

• Decision Date: 02 January 1987
• Citation: 233 Cal.Rptr. 69,43 Cal.3d 487,729 P.2d 260
• Court: California Supreme Court
• Parties: , 729 P.2d 260 The PEOPLE, Plaintiff and Respondent, v. Edward Judson WRIGHT, Defendant and Appellant. Crim. 25362.

Page 69

233 Cal.Rptr. 69

43 Cal.3d 487, 729 P.2d 260

The PEOPLE, Plaintiff and Respondent, v. Edward Judson WRIGHT, Defendant and Appellant.

Crim. 25362.

Supreme Court of California.

Jan. 2, 1987.

As Modified Jan. 29, 1987.

[43 Cal.3d 490] [729 P.2d 261]

Frank O. Bell, Jr., Public Defender, under appointment by the Court of Appeal, and Nancy Ann Stoner, Deputy Atty. Gen., for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Robert F. Katz and William V. Ballough, Deputy Attys. Gen., for plaintiff and respondent.

BROUSSARD, Justice.

Defendant was convicted in a court trial of one count of first degree murder (Pen. Code, § 187), one count of burglary (Pen. Code, § 459), and three counts of robbery (Pen. Code, § 211) and given consecutive sentences with enhancements for prior felony convictions and being armed with a firearm (Pen. Code, § 12022, subd. (a)). He contends his convictions must be reversed without a showing of prejudice because the court failed to give the advisements and take the waivers required by Bunnell v. Superior Court (1975) 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086 for submissions on the transcript of a preliminary hearing. ¹ For reasons discussed within, we hold that the trial court erred in failing to advise defendant that the submission would require him to waive his privilege against self-incrimination and in failing to advise him of the potential range of punishment. Because the submission was not tantamount to a plea of guilty, the Bunnell error requires reversal only if the error was prejudicial to the defendant. We affirm the judgment of the Court of Appeal because it is not reasonably probable an outcome more favorable to defendant would have resulted had the error not been committed.

BUNNELL ERROR

"It has long been recognized that under the federal Constitution a defendant's plea of guilty to a criminal charge is only valid if it is voluntarily and knowingly made." (Mills v. Municipal Court (1973) 10 Cal.3d 288, 291, 110 Cal.Rptr. 329, 515 P.2d 273.) In Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, the United States Supreme Court held that an appellate court may not presume from a "silent record" that a defendant has voluntarily and intelligently waived the constitutional rights which he implicitly relinquishes by entering a plea of guilty. A few months later, in In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, certiorari denied, Tahl v. California (1969) 398 U.S. 911, 90 S.Ct. 1708, 26 L.Ed.2d 72, we construed Boykin to require the record to reveal "on its face" that the trial court, before accepting a guilty plea, expressly advised the accused and obtained his or her waiver of the full panoply of constitutional rights: the rights to trial by jury, to confront and cross-examine witnesses, and against self-incrimination. We have often reiterated the Boykin-Tahl requirement that the record show explicit advisements and waivers of constitutional rights. (People v. Rizer (1971) 5 Cal.3d 35, 95 Cal.Rptr 23, 484 P.2d 1367 [plea of not guilty by reason of insanity]; In re Sutherland (1972) 6 Cal.3d 666, 100 Cal.Rptr. 129, 493 P.2d 857 [guilty plea entered pursuant to a plea bargain]; Mills v. Municipal Court, supra, 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273 [guilty plea of misdemeanor through counsel permitted if record shows defendant's awareness and personal waiver of constitutional rights]; In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561 [admission of allegations of prior felony convictions]; People v. Hall (1980) 28 Cal.3d 143, 157, fn. 9, 167 Cal.Rptr. 844, 616 P.2d 826 [stipulation to the status of ex-felon].) When the defendant actually pleads guilty or admits prior felony convictions and "no such showing appears on the face of the record[,] the conviction must be set aside." (In re Yurko, supra, 10 Cal.3d 857, 862, 112 Cal.Rptr. 513, 519 P.2d 561; see In re Ronald E. (1977) 19 Cal.3d 315, 321, 137 Cal.Rptr. 781, 562 P.2d 684.)

In In re Mosley (1970) 1 Cal.3d 913, 924-926, 83 Cal.Rptr. 809, 464 P.2d 473, certiorari denied, Mosley v. California (1970) 400 U.S. 905, 91 S.Ct. 144, 27 L.Ed.2d 142, albeit in dictum, we extended the Boykin-Tahl advisement and waiver requirements to cases in which a defendant's submission on the transcript of the preliminary hearing was in fact "tantamount to a guilty plea." In People v. Levey (1973) 8 Cal.3d 648, 654, 105 Cal.Rptr. 516, 504 P.2d 452, we adopted the dictum of Mosley and held that if a submission is tantamount to a guilty plea, a conviction obtained without advisement and waiver of the right against self-incrimination is reversible per se.

These cases describe the right against self-incrimination in very broad terms. "The privilege against self-incrimination is applicable not only to a frank admission of guilt but also to statements which could furnish a link in the chain of evidence needed for conviction. (Blau v. United States (1950) 340 U.S. 159, 161, 71 S.Ct. 223, 224, 95 L.Ed. 170.) A defendant who by his stipulation permits the prosecution to prove its case without requiring the production of any evidence in court, other than the transcript of a prior hearing, furnishes far more than a mere link in the chain of evidence." (People v. Levey, supra, 8 Cal.3d at p. 652, 105 Cal.Rptr. 516, 504 P.2d 452.) He necessarily forfeits his constitutional right against self-incrimination. In such cases, an affirmative showing of an advisement and waiver rather than a silent record is necessary to establish that the confession of guilt is voluntarily made and that the defendant has knowingly and intelligently waived his rights. (Id., at pp. 653-654, 105 Cal.Rptr. 516, 504 P.2d 452; In re Tahl, supra, 1 Cal.3d at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449; see Boykin v. Alabama, supra, 395 U.S. 238, 243-244, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274.)

Finally, in Bunnell v. Superior Court, supra, 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086, we required advisements and waivers of the constitutional rights whether or not a submission is tantamount to a plea of guilty. We specifically held that "in all cases in which the defendant seeks to submit his case for decision on the transcript or to plead guilty, the record shall reflect that he has been advised of his right to a jury trial, to confront and cross examine witnesses, and against self-incrimination.... Express waivers of the enumerated constitutional rights shall appear.... In all guilty plea and submission cases the defendant shall be advised of the direct consequences of conviction such as the permissible range of punishment provided by statute...." (Id. at p. 605, 119 Cal.Rptr. 302, 531 P.2d 1086.) We stated two purposes for this rule: (1) to "assur[e] criminal defendants that the full panoply of constitutional and statutory rights provided by our system of criminal justice is available to them and ... that any waiver thereof by defendants is both voluntary and intelligent" (id. at pp. 605-606, 119 Cal.Rptr. 302, 531 P.2d 1086); and (2) to relieve trial courts of the unnecessary burden of "attempting to determine in advance of the acceptance of the submission whether guilt is apparent, acknowledged, or contested" (id. at p. 605, 119 Cal.Rptr. 302, 531 P.2d 1086). We expressed the hope that "[t]his practice will also lessen the burden on appellate courts which must now attempt to ascertain by examination of the record whether a submission was 'tantamount to a plea of guilty' " (id. at p. 606, 119 Cal.Rptr. 302, 531 P.2d 1086).

STANDARD OF REVIEW

There was clear error under Bunnell in this case. The trial court failed to advise defendant that submission on the transcript of the preliminary hearing would involve waiver of the privilege against self-incrimination. The court also failed to advise defendant on the full range of punishment, since it failed to advise defendant on the additional terms that would be imposed because of the enhancements charged. ² Although we have held that failure to advise and obtain waivers of any of the three fundamental constitutional rights is per se reversible error if the submission is tantamount to a guilty plea (People v. Levey, supra, 8 Cal.3d at p. 654, 105 Cal.Rptr. 516, 504 P.2d 452; In re Mosley, supra, 1 Cal.3d at pp. 924-926, 83 Cal.Rptr. 809, 464 P.2d 473), we have never squarely addressed the question of the appropriate standard of review for failure to advise and take a waiver of the privilege against self-incrimination in cases where the submission is not a slow plea. The Courts of Appeal have reached conflicting conclusions on the issue.

One line of authority adopts the Watson test of prejudice (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, cert. den. 355 U.S. 846, 78 S.Ct. 70, 2 L.Ed.2d 55) and holds that Bunnell error does not require reversal where the submission is not tantamount to a guilty plea, unless the record shows that it is reasonably probable that the outcome would have been different if no error had been committed. (People v. Mora (1984) 153 Cal.App.3d 18, 24-25, 199 Cal.Rptr. 904; People v. Orduno (1978) 80 Cal.App.3d 738, 748-749, 145 Cal.Rptr. 806, cert. den., Ordono v. California (1979) 439 U.S. 1074, 99 S.Ct. 849, 59 L.Ed.2d 41; People v. Smith (1977) 70 Cal.App.3d 306, 314, 138 Cal.Rptr. 783; People v. Ingram (1976) 60 Cal.App.3d 722, 726-727, 131 Cal.Rptr. 752.) ³ Courts in the Ingram line regard the Bunnell requirement of advisements and waivers for submissions that are not tantamount to a plea of guilty to be a judicial rule of criminal procedure that is based not on the constitution but on a policy to lessen the burden on trial courts. (See People v. Cahan (1955) 44 Cal.2d 434, 442, 282 P.2d 905.)

A second line of cases finds failure to advise and obtain waivers of the constitutional rights to be reversible per se. (People v. Drieslein (1985) 170 Cal.App.3d 591, 597-599, 216 Cal.Rptr. 244; People v. Romanoski (1984)...