Yurko, In re

• Decision Date: 07 March 1974
• Docket Number: Cr. 16368
• Citation: 10 Cal.3d 857,519 P.2d 561,112 Cal.Rptr. 513
• Court: California Supreme Court
• Parties: , 519 P.2d 561 In re Edward Michael YURKO on Habeas Corpus.

Page 513

112 Cal.Rptr. 513

10 Cal.3d 857, 519 P.2d 561

In re Edward Michael YURKO on Habeas Corpus.

Cr. 16368.

Supreme Court of California,

In Bank.

March 7, 1974.

As Modified on Denial of Rehearing April 17, 1974.

As Modified April 24, 1974.

Edward Michael Yurko, in pro. per., and Richard H. Levin, Los Angeles, under appointment by the Supreme Court, for petitioner.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris of the first degree . . . who shall have and Robert D. Marshall, Deputy Attys. Gen., for respondent.

WRIGHT, Chief Justice.

Petitioner was convicted in July 1969 of burglary in the first degree (Pen.Code, § 459) after trial to a jury. An amended information filed on the day of trial alleged that he had suffered three prior felony convictions. Upon advice of counsel petitioner admitted the correctness of the allegation of prior convictions and such admission formed the basis of his being adjudged an habitual criminal (Pen.Code, § 644). ¹ The judgment was affirmed on appeal. (People v. Yurko (1970), 2 Crim. 17702, unpublished.)

Petitioner seeks habeas corpus relief on the grounds that he was denied a speedy trial and the effective representation of counsel at trial and on appeal, and on the further ground that he unknowingly waived constitutional protections because he was not adequately advised as to the consequences of admitting the truth of the charged prior felony convictions. (See Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. In re Tahl (1969), 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.) For reasons stated later herein we find no merit in the first asserted grounds. As to the other ground we hold that henceforth an accused must be advised of (1) specific constitutional protections waived by an admission of the truth of an allegation of prior felony convictions, and (2) those penalties and other sanctions imposed as a consequence of a finding of the truth of the allegation. Because the new rule is to be applied prospectively only to admissions occurring after the filing of this opinion, petitioner is not entitled to any relief.

The record fails to disclose that petitioner was aware at the time of the admission of the truth of the charged prior convictions, ² that if convicted of the substantive charges he might be found an habitual criminal by reason of such admission and, if so found, the consequences thereof. ³

Petitioner's basic contention is that Boykin v. Alabama, supra, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 is applicable in proceedings wherein an accused is required to plead to a charge of having suffered a prior felony conviction, and that he was denied due process when the court failed to advise him of the consequences of his admission at the time it was made. In Boykin the United States Supreme Court held that it could not be presumed from a silent record that a guilty plea was voluntarily made with the necessary concomitant, knowing and intelligent waiver of constitutional rights which were forfeited by a plea of guilty. (Id. at pp. 242--244, 89 S.Ct. 1709.) This emphasis on the necessity of an affirmative showing of waiver was grounded on the recognition that a guilty plea, '. . . is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.' (Id. at p. 242, 89 S.Ct. at p. 1711.)

In the case of In re Tahl, supra, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, we construed Boykin to require more than an inferential showing from the record that an accused waived his constitutional rights to confront accusers, to trial by jury, and against compulsory self-incrimination. We held that the court itself must 'specifically and expressly' enumerate each of the rights, 'employ the time necessary to explain adequately and to obtain express waiver of the rights involved' prior to acceptance of a guilty plea, and ensure that an adequate record be available for possible review. (Id. at p. 132, 81 Cal.Rptr. at p. 584, 460 P.2d at p. 456; see also, In re Sutherland (1972) 6 Cal.3d 666, 100 Cal.Rptr. 129, 493 P.2d 857; People v. Rizer (1971) 5 Cal.3d 35, 95 Cal.Rptr. 23, 484 P.2d 1367.)

Shortly after Tahl we clearly indicated, albeit in dictum, that where a submission of a case on the transcripts of the preliminary hearing was tantamount to a guilty plea for purposes of waiver of an accused's rights, the record must reflect the same affirmative showing of waiver required by Boykin and Tahl. (In re Mosley (1970) 1 Cal.3d 913, 926, fn. 10, 83 Cal.Rptr. 809, 464 P.2d 473.) ⁴ Finally, in People v. Levey (1973) 8 Cal.3d 648, 105 Cal.Rptr. 516, 504 P.2d 452, we adopted the dictum of Mosley and held that where a submission is tantamount to a guilty plea for purposes of waiver of an accused's rights '. . . there must be a specific and express showing on the face of the record that the rights were known to and waived by . . . (defendant) . . .' (Id. at p. 653, 105 Cal.Rptr. at p. 520, 504 P.2d at p. 456.) Where no such showing appears on the face of the record the conviction must be set aside.

It is against this background that we turn to petitioner's contention that the same requirements of knowledge and waiver should apply to the admission of the truth of the allegation of prior felony convictions and that absent an affirmative showing of waiver on the record an adjudication, insofar as it is based on an admission, must be set aside.

The admission of the truth of the allegation of prior convictions has been differentiated from a plea of guilty through a characterization of the former as merely allowing a determination of a 'status' which can subject an accused to increased punishment. (See In re McVickers (1946) 29 Cal.2d 264, 176 P.2d 40; People v. Franco (1970) 4 Cal.App.3d 535, 84 Cal.Rptr. 513.) Although this may be technically correct, the distinction is meaningless if, as in the case of a plea of guilty, the accused nevertheless will be held to have waived, without proper protections, important rights by such an admission. Undoubtedly the particular rights waived by an admission of the truth of the allegation of prior convictions are important. Although there is not at stake a question of guilt of a substantive crime, the practical aspects of a finding of prior convictions may well impose upon a defendant additional penalties and sanctions which may be even more severe than those imposed upon a finding of guilt without the defendant having suffered the prior convictions. Thus a finding of prior convictions may foreclose the possibility of probation (§ 1203), may extend the term for the basic crime to life imprisonment (§ 644), and may substantially extend the time served on such a life sentence before the defendant becomes eligible for parole (§§ 3046--3048.5).

The burden is on the state as in the case of the trial of other factual matters in issue to prove beyond a reasonable doubt those alleged prior convictions challenged by a defendant. (People v. Womack (1967) 252 Cal.App.2d 761, 60 Cal.Rptr. 870; People v. Niles (1964) 227 Cal.App.2d 749, 757, 39 Cal.Rptr. 11.) Those procedures by which the imposition of such added penalties is to be fixed are thus protected by specific constitutional provisions and it is such protections which, it is urged, cannot be waived except with knowledge and understanding. The waiver of these constitutional protections has been fairly described as the 'functional equivalent' of the waivers embodied in a plea of guilty to an independent criminal charge. (Wright v. Craven (D.C.1971) 325 F.Supp. 1253.)

Boykin holds that because of the significant constitutional rights at stake in extracting from an accused a guilty plea a court must exercise the 'utmost solicitude' of which it is capable in canvassing the matter with the accused to make sure he has a full understanding of what is being waived. ⁵ Because of the significant rights at stake in obtaining an admission of the truth of allegations of prior convictions, which rights are often of the same magnitude as in the case of a plea of guilty, courts must exercise a comparable solicitude in extracting an admission of the truth of alleged prior convictions. Although the issue was not before the Supreme Court in Boykin nor before us in Tahl, it is nevertheless manifest that an accused is entitled to be advised of those constitutional rights waived by him in making such an admission. As an accused is entitled to a trial on the factual issues raised by a denial of the allegation of prior convictions, an admission of the truth of the allegation necessitates a waiver of the same constitutional rights as in the case of a plea of guilty. The lack of advice of the waivers so to be made, insofar as the record fails to demonstrate otherwise, compels a determination that the waiver was not knowingly and intelligently made.

We conclude that Boykin and Tahl require, before a court accepts an accused's admission that he has suffered prior felony convictions, express and specific admonitions as to the constitutional rights waived by an admission. The accused must be told that an admission of the truth of an allegation of prior convictions waives, as to the finding that he had indeed suffered such convictions, the same constitutional rights waived as to a finding of guilt in case of a guilty plea. (See fn. 5, supra.) ⁶

A question is raised whether there is a requirement to further advise an accused with respect to the effect which a determination of habitual criminality will have on the punishment and other sanctions to be imposed upon the accused's conviction of the substantive crime charged. As stated, severe sanctions are at issue and there are numerous and complex circumstances in which those sanctions and the degrees thereof are to be made applicable. The consequences of an admission could, without imposing any undue burden on the judicial...