People v. Howard

In People v. Howard (1992) 1 Cal.4th 1132, the court failed to advise the defendant of his right not to incriminate himself. (Id. at pp. 1179-1180.) Howard adopted the federal test -- that the record must affirmatively demonstrate that the plea was voluntary and intelligent under the totality of the circumstances -- in place of the former rule in California that the absence of express advisements and waivers requires reversal regardless of prejudice. (Id. at p. 1178.) Howard ultimately found that the record there affirmatively demonstrated that the defendant knew he had the right not to incriminate himself and that the failure of the trial court to make this advisement and to take this admission was harmless because the admission was knowing and voluntary. (Id. at p. 1180.) The Court held that the failure to advise of the three rights--is not reversible per se. Rather, despite the error an admission of a prior conviction is valid "if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances." (Howard, supra, at p. 1175.) In Howard, the defendant was advised of--and personally waived--his right to trial by jury and his right to confrontation, but was not advised of his privilege against self-incrimination. (Howard, supra, 1 Cal.4th at pp. 1179-1180.) The court did not find reversible error because the totality of the circumstances showed that defendant knew he did not have to admit the prior, and thus incriminate himself, because he was told he could take the issue to trial, require the district attorney to prove the prior, and confront witnesses. (Id. at p. 1180.) "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." (Ibid.) In People v. Howard (1992) the trial court took explicit waivers of jury trial and confrontation rights but failed to obtain a specific waiver of the privilege against self-incrimination. The California Supreme Court found that, under the totality of the circumstances of that case, when the defendant admitted the prior convictions, his waivers represented "'a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" (Howard, supra, 1 Cal.4th at p. 1177.) "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. . . . 'A plea of guilty is the most complete form of self-incrimination.'" (Id., at p. 1180.) By the plea, the defendant admits he is guilty of the charged offense. It is thus "'essential that the defendant know that he has a right not to plead guilty, and that the record show he knows it.' However, when the record demonstrates that knowledge there is 'no need to go farther and attach to such knowledge the talismanic phrase "right not to incriminate himself."' " (Ibid.) In Howard, the California Supreme Court noted that "defendant relied solely on the fact that the prosecutor had challenged the only two Black prospective jurors. Defendant did not make any effort to set out the other relevant circumstances, such as the prospective jurors' individual characteristics, the nature of the prosecutor's voir dire, or the prospective jurors' answers to questions. A showing as limited as defendant's offers little practical assistance to the trial court, which must determine from 'all the circumstances of the case' whether there is 'a strong likelihood' that prospective jurors have been challenged because of their group association rather than because of any specific bias. " (Howard, supra, 1 Cal.4th 1132, 1154.) The California Supreme Court characterized such a showing as "completely inadequate." (Ibid.) The Court noted that the record "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." (1 Cal.4th at p. 1180.) On the record before it, the Howarad court concluded defendant's admission of the prior conviction was voluntary and intelligent, despite the absence of an explicit admonition on the privilege against self-incrimination. (Ibid.)