Failure to Advise a Defendant Prior to Accepting a Guilty Plea
Before People v. Howard (1992) 1 Cal.4th 1132, California law viewed the failure to advise a defendant of his constitutional rights or secure his waiver of them prior to accepting a guilty plea or admission of a prior conviction--known as Boykin-Tahl (plea) or Yurko (prior conviction admission) error--as automatically reversible, regardless of prejudice.
In Howard, however, our Supreme Court determined that "Yurko error involving Boykin/Tahl admonitions should be reviewed under the test used to determine the validity of guilty pleas under the federal Constitution. Under that test, a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances." (Howard, supra, 1 Cal.4th at p. 1175.)
Thus, although the trial court in Howard did not admonish the defendant concerning his privilege against self-incrimination, the Supreme Court concluded that the defendant's admission of the prior conviction was voluntary and intelligent from a review of the totality of the circumstances. (Id. at p. 1180.)
Subsequent to Howard, however, some courts of appeal questioned the wisdom of applying a harmless error test in this context and declined to review the record in the manner directed by the Howard court. (People v. Howard (1994) 25 Cal.App.4th 1660; People v. Garcia (1996) 45 Cal.App.4th 1242; People v. Carroll (1996) 47 Cal.App.4th 892; People v. Van Buren (2001) 93 Cal.App.4th 875.)
In People v. Mosby (2004) 33 Cal.4th 353, the Court reiterated its commitment to application of a harmless error analysis of Boykin-Tahl-Yurko error and elaborated that "in replacing the old rule, the focus was shifted from whether the defendant received express rights advisements, and expressly waived them, to whether the defendant's admission was intelligent and voluntary because it was given with an understanding of the rights waived.
After the Howard decision, an appellate court must go beyond the courtroom colloquy to assess a claim of Yurko error. Now, if the transcript does not reveal complete advisements and waivers, the reviewing court must examine the record of 'the entire proceeding' to assess whether the defendant's admission of the prior conviction was intelligent and voluntary in light of the totality of circumstances." (Mosby, at p. 361.)
However, with respect to "truly silent-record cases . . . that show no express advisement and waiver of the Boykin-Tahl rights before a defendant's admission of a prior conviction," the court stated: "In such cases, in which the defendant was not advised of the right to have a trial on an alleged prior conviction, we cannot infer that in admitting the prior the defendant has knowingly and intelligently waived that right as well as the associated rights to silence and confrontation of witnesses." (Id. at pp. 361-362.)
In Mosby, the court found that a defendant's admission of his priors was intelligent and voluntary under the totality of circumstances, notwithstanding the trial court's failure to advise and obtain a waiver of the rights to silence and confrontation of witnesses. (Mosby, supra, 33 Cal.4th at pp. 356, 360, 364-365.) The lynchpin of Mosby's conclusion was that the defendant was expressly advised about, and had expressly waived, his right to a jury or court trial on the priors. (Id. at p. 364.)
The court in Mosby reasoned that it was apparent that the defendant knew about and intended to waive the two rights attendant to trial (i.e., silence and witness confrontation) because he had just participated in a trial on the substantive offenses where those very same rights were exercised. (Id. at pp. 364-365.)
Mosby distinguished cases where there was absolutely no advisement and waiver as to the jury or court trial right, or where the trial court's reference to the trial right was fleeting and without response from the defendant so that the circumstances in effect equated to a complete lack of advisement and waiver. (Id. at pp. 361-362.)
In the case before the Mosby court, immediately after the jury returned a guilty verdict, the defendant was advised that he had a right to a jury trial on the prior conviction. He waived that right and admitted the truth of the allegation. The court held that the totality of the circumstances supported a finding that "defendant voluntarily and intelligently admitted his prior conviction despite being advised of and having waived only his right to a jury trial." (Mosby, supra, 33 Cal.4th at p. 365.)
Important considerations in Mosby included the fact that defendant "had just undergone a jury trial" at which he did not testify but his codefendant did, indicating that he understood he had a right to remain silent at trial, thereby "forcing the prosecution to prove he had sold cocaine." (Id. at p. 364.)
In addition, at the trial that had just concluded, his attorney had confronted witnesses, indicating that defendant "would have understood that at a trial he had the right to confrontation." (Ibid.)
Finally, the court also considered defendant's prior experience with the criminal justice system "relevant to a recidivist's '"knowledge and sophistication regarding his legal rights."'" (Id. at p. 365.)