Failure to Advise Defendant of His or Her Privilege Against Self-incrimination

In People v. Howard (1992) 1 Cal.4th 1132, the court considered what the consequences should be if the trial court fails to advise a defendant of his or her privilege against self-incrimination when the defendant admits a prior conviction. The defendant in Howard was expressly advised of, and waived, his right to a jury trial, his right to require the People to prove the prior conviction, and his right to confront witnesses. ( Id. at p. 1179.) However, there was no express advice or waiver of the defendant's privilege against self-incrimination. The Howard court held that the absence of an express waiver of the self- incrimination privilege does not necessarily invalidate the defendant's admission of the prior conviction. Instead, the question is whether the admission was voluntary and intelligent under the totality of the circumstances. (Howard, supra, 1 Cal.4th at p. 1178.) The court concluded: "On this record, the absence of an express waiver of the privilege against self-incrimination does not lead us to conclude that defendant's admission of the prior was less than voluntary and intelligent. . . . The record in this case affirmatively demonstrates that defendant knew he had a right not to admit the prior conviction and, thus, not to incriminate himself. The court specifically informed defendant that he had a right to force the district attorney to prove the prior conviction in a trial and that, in such a trial, he would have the rights to a jury and to confront adverse witnesses. The admonitions were not empty words because defendant was actively represented by counsel and preparing for trial on charges to which he had pled not guilty. Moreover, there was a strong factual basis for the plea." ( Id. at p. 1180, )