People v. Gandy

In April 2012, defendant moved to dismiss the alleged 2001 prior Oregon felony convictions, which resulted from his no contest plea to two counts of burglary and one count of robbery. He argued the prior convictions could not be used to enhance his sentence because he had not been expressly advised of nor waived his rights, as required by Boykin - Tahl and Oregon law. He cited

The court issued a minute order several days later denying defendant's motion. The order explained: "Although Gandy received incomplete Boykin / Tahl advisement in his Oregon case according to the standard set in [ People v. Mosby (2004) 33 Cal.4th 353 , 15 Cal.Rptr.3d 262 , 92 P.3d 841 ( Mosby ) ] due to the lack of clear and on the record enumeration of his rights, the California Supreme Court has held in [ Garcia v. Superior Court (1997) 14 Cal.4th 953 , 966, 59 Cal.Rptr.2d 858 , 928 P.2d 572 ( Garcia ) ] that a motion to dismiss due to the defense counsel['s] ineffective advice should not be granted where a defendant faces current prosecution with a noncapital offense. In this instance, the case law supports denying defendant's motion to dismiss prior convictions."

In August 2014, the district attorney filed an amended information, which added a new count for possession of a controlled substance with a firearm ( Health & Saf. Code, § 11370.1, subd. (a) ). Defendant withdrew his plea of not guilty as to the counts for assault with a semiautomatic firearm (§ 245, subd. (b)) and possession of a controlled substance for sale ( Health & Saf. Code, § 11378 ) pursuant to a plea agreement. He entered a no contest plea, and admitted that he personally had used a firearm (§ 12022.5, subd. (a)) and previously had been convicted of one prior strike (§§ 667, subds. (b)-(i), 1170.12, subd. (a)-(d)).

Defendant was sentenced in May 2015 to a total term of 17 years and four months in state prison. He filed a notice of appeal and request for a certificate of probable cause, which the trial court granted.

The Sumstine decision was grounded on policy considerations favoring efficiency: "Previously we had allowed a defendant to challenge a prior by seeking a writ of habeas corpus after a final judgment in which the prior had been used to enhance his sentence. [Citations.] But in Coffey we decided that 'it is clearly in the interest of efficient judicial administration that attacks upon the constitutional basis of prior convictions be disposed of at the earliest possible opportunity, and we are therefore of the view that, if the issue is properly raised at or prior to trial, it must be determined by the trial court.' "

Unlike Tahl , the Oregon cases do not explicitly require that evidence of the defendant's waiver appear on the record. However, taking the language of the Oregon statute together with its analysis by the Oregon courts, it appears that Oregon has a " Tahl -like" policy of requiring express, on-the-record admonitions and waiver of rights, whether verbally or in writing. Thus, we can generally "expect the record of the challenged prior guilty plea readily to show, on its face, that the defendant knew and waived his rights." ( Allen , supra , 21 Cal.4th at p. 447, 87 Cal.Rptr.2d 682 , 981 P.2d 525 (conc. opn. of Baxter, J).) Consequently, defendant was not barred from collaterally attacking his prior Oregon convictions. ( Green , supra , 81 Cal.App.4th at pp. 470-471, 96 Cal.Rptr.2d 811 .)

Proceeding to the merits of defendant's collateral attack on his prior convictions, we affirm the judgment because his prior no contest plea was constitutionally valid under the governing federal test. "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, 5 Cal.Rptr.2d 268 , 824 P.2d 1315 , citing North Carolina v. Alford (1970) 400 U.S. 25 , 31, 91 S.Ct. 160 , 27 L.Ed.2d 162 and Brady v. United States (1970) 397 U.S. 742 , 747, fn. 4, 90 S.Ct. 1463 , 25 L.Ed.2d 747 .)

In Howard , supra , 1 Cal.4th at page 1178, 5 Cal.Rptr.2d 268 , 824 P.2d 1315 , our Supreme Court abandoned the rule that "the absence of express admonitions and waivers

Defendant contends his plea was not voluntary and intelligent because nothing in the record demonstrates that he was aware of and understood that by entering it he was waiving his Boykin rights. He argues that the plea petition was insufficient because it advised him of the rights to which he was entitled if he pleaded not guilty, but did not expressly state that he was waiving those rights by pleading guilty or no contest. He also contends the trial judge's "vague" questioning during the plea colloquy fell short of affirmatively showing that defendant knew precisely what he was giving up. Defendant points to his declaration, which states that neither defense counsel nor the trial judge ever expressly advised him of his rights and the fact that he was waiving them by entering his plea.

However, the federal test does not require a showing that the trial judge specifically and expressly advised defendant that by pleading no contest he would be waiving his rights. (See, e.g.,

Under the totality of these circumstances, we conclude that defendant's plea was voluntary and intelligent and therefore his prior convictions are constitutionally valid. (See Howard , supra , 1 Cal. 4th at p. 1175, 5 Cal.Rptr.2d 268 , 824 P.2d 1315 .) The

The plea petition was on a two-page form including half a page for defense counsel's certification. Paragraph 6 states: "I understand that I am not required to plead guilty or no contest and may plead not guilty if I choose. If I plead not guilty, I understand I am entitled to a speedy trial before a jury of my peers; ... that I have an absolute right to confront any witness that would testify against me and cross examine such witness; [and] that I need not take the witness stand or give any testimony against myself." Paragraph 11 states: "I have taken no drink nor anything else which would in any way [impair] my judgment at this time, and I feel th[at] I am now fully alert and that in executing this petition I am doing so knowingly and voluntarily." Defendant signed and dated the petition. His attorney certified that he believed "the statements, representations and declarations made by Defendant in the foregoing petition are in all respects accurate and true." His attorney also certified "[t]hat in my opinion the Defendant's plea is voluntarily and understandingly made."

The transcript of the plea and sentencing hearing indicates that the Oregon trial court had ratified a plea bargain agreement and defendant tendered the plea petition. The transcript includes the following colloquy:

Judge: Mr. Gandy uh, I see that you and Mr. Bain [defense counsel] have both signed this written plea petition. Did you in fact sign this on November the 14th?

Gandy: Yes sir.

Judge: Did you have a chance to read through it carefully and discuss it with Mr. Bain before you signed it[?]

Gandy: Yes I did.

Judge: Any questions about what it says or what you are giving up by entering this plea?

Gandy: No.

In his declaration dated March 5, 2012, defendant stated that his Oregon attorney told him to sign the plea petition, did not read each word and paragraph to him, did not specifically advise him of paragraph 6, and did not advise him that he was waving his right to a jury trial, the right to confront witnesses, and the privilege against self-incrimination when he pleaded guilty.

In June 2012, the California trial court held a hearing on defendant's motion to dismiss the prior convictions. The prosecutor argued the Boykin - Tahl requirements

"In [ Boykin ] the United States Supreme Court determined that a defendant who pled guilty could attack the ensuing conviction on the ground the record did not affirmatively establish a knowing and intelligent waiver of certain constitutional rights-the right to a jury trial, the right to confront witnesses, and the privilege against self-incrimination. [Citation.] Just months later, the California Supreme Court addressed the same issue in [ Tahl ]. Again, the defendant alleged his guilty plea was not made voluntarily or with a complete understanding of its consequences. The Tahl court, bound by Boykin , set forth the additional requirement that the record clearly state that the defendant specifically and expressly waived each of the three enumerated constitutional rights. [Citation.] Both Tahl and Boykin involved direct challenges on an appeal from the contested conviction." ( Green , supra , 81 Cal.App.4th at p. 466, 96 Cal.Rptr.2d 811 .)

"In People v. Sumstine (1984) 36 Cal.3d 909 [ 206 Cal.Rptr. 707 , 687 P.2d 904 ] [ ( Sumstine ) ], the California Supreme Court considered whether a defendant, whose sentence was subject to enhancement by a prior conviction, was permitted to attack collaterally the validity of that conviction on Boykin / Tahl grounds. The court answered affirmatively, deciding that a defendant could question a prior conviction on any constitutional ground, including a Boykin / Tahl violation." (

In People v. Howard (1992) 1 Cal.4th 1132 , 5 Cal.Rptr.2d 268 , 824 P.2d 1315 , the California Supreme Court recognized that explicit admonitions and waivers of each of the three Boykin - Tahl rights are not required as a matter of federal constitutional law. ( Id. at p. 1175, 5 Cal.Rptr.2d 268 , 824 P.2d 1315 .) The court adopted the federal test for validity, under which "a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances. [Citations.]" ( Howard , at p. 1175, 5 Cal.Rptr.2d 268 , 824 P.2d 1315 .) The court also held that in the exercise of its supervisory powers it would "continue to require that trial courts expressly advise defendants on the record of their Boykin / Tahl rights. However, errors in the articulation and waiver of those rights shall require the plea to be set aside only if the plea fails the federal test." ( Howard , at p. 1175, 5 Cal.Rptr.2d 268 , 824 P.2d 1315 .)

A defendant's ability to collaterally attack a prior conviction under Sumstine was called into question by the United States Supreme Court decision in Custis v. United States (1994) 511 U.S. 485 , 114 S.Ct. 1732 , 128 L.Ed.2d 517 ( Custis ), which involved a challenge to the defendant's prior state conviction based on a claim of ineffective assistance of counsel. The court held that the right to collaterally attack prior convictions used for sentence enhancement purposes cannot be extended beyond the right to have appointed counsel established under Gideon v. Wainwright (1963) 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 . ( Custis , at p. 496, 114 S.Ct. 1732 .) The decision was based on the unique significance of depriving an indigent defendant of appointed counsel, the ease in determining from the record whether a failure to appoint counsel occurred, and the interest in promoting the finality of judgments. ( Id. at pp. 494-497, 114 S.Ct. 1732 .)

Three years later, in Garcia , the California Supreme Court followed Custis in holding that "a criminal defendant may not challenge a prior conviction on the ground of ineffective assistance of counsel in the course of a current prosecution for a noncapital offense." (

The majority in Allen expressly declined to decide whether Sumstine permits a defendant to collaterally attack a prior out-of-state conviction. ( Allen , supra , 21 Cal.4th at p. 443 & fn. 7, 87 Cal.Rptr.2d 682 , 981 P.2d 525 .) However, Justice Baxter provided guidance in his concurring opinion: "The majority acknowledge that the Sumstine rule, as applied to Boykin - Tahl issues, is tolerable only insofar as we can expect the record of the challenged prior guilty plea readily to show, on its face, that the defendant knew and waived his rights. For this reason, only priors governed by Tahl 's requirement of express admonitions and waivers may be the subject of a Sumstine motion. Just as this principle eliminates Boykin - Tahl challenges to California priors that predate Tahl , so must Boykin - Tahl challenges to non-California priors be excluded, except where it appears beyond doubt that the guilty pleas underlying such convictions were subject, under the law of the convicting jurisdictions, to Tahl -like procedural formalities." ( Id. at p. 447, 87 Cal.Rptr.2d 682 , 981 P.2d 525 (conc. opn. of Baxter, J.) italics omitted.)

In Green , the Fifth District Court of Appeal followed Justice Baxter's concurrence in Allen , holding that "a defendant may not collaterally attack a prior out-of-state conviction unless there is evidence that Tahl -like requirements operated in the jurisdiction at the time of the plea." ( Green , supra , 81 Cal.App.4th at pp. 470-471, 96 Cal.Rptr.2d 811 .) The court explained that "if a Tahl -like policy of requiring preplea advisements and waivers on the record was in effect in the state

I

n our previous opinion we concluded defendant was barred from collaterally attacking his prior convictions under Green , supra , 81 Cal.App.4th at pages 470-471, 96 Cal.Rptr.2d 811 because he did not demonstrate that " Tahl -like" requirements operated in Oregon at the time of his prior no contest plea. We granted rehearing on this issue and requested supplemental briefing. The parties are in agreement that there is substantial parity between the plea advisement and waiver requirements under California and Oregon law, and consequently defendant could collaterally attack his prior convictions. We agree.

Tahl held that the three rights identified in Boykin "must be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his guilty plea." ( Tahl , supra , 1 Cal.3d at p. 132, 81 Cal.Rptr. 577 , 460 P.2d 449 .) Tahl required that "the record must contain on its face direct evidence that the accused was aware, or made aware of his" enumerated rights. ( Ibid. , italics omitted.) However, Tahl did not require that these rights be explained and waived orally or in court at the time of the plea. In a footnote, the court indicated that "[w]hat is required is evidence that the particular right was known to and waived by the defendant. The explanation need not necessarily be by the court." ( Id. at p. 133, fn. 6, 81 Cal.Rptr. 577 , 460 P.2d 449 .)

In In re Ibarra (1983) 34 Cal.3d 277 , 285, 193 Cal.Rptr. 538 , 666 P.2d 980 , abrogated on other grounds as recognized in Mosby , supra , 33 Cal.4th at page 360, 15 Cal.Rptr.3d 262 , 92 P.3d 841 , the Supreme Court held that under normal circumstances, where there is no indication the plea is otherwise involuntary, reliance on a validly executed waiver form satisfies the Boykin - Tahl requirements. The trial court "need only determine whether defendant had read and understood the contents of the form, and had discussed them with his attorney." ( In re Ibarra, at p. 286, 193 Cal.Rptr. 538 , 666 P.2d 980 .) However, if the judge has reason to believe defendant does not fully understand his rights, the judge "must conduct further canvassing of the defendant to ensure a knowing and intelligent waiver of rights." ( Ibid . ) The Supreme Court later authorized this procedure in the context of a waiver of the right to appeal. (See People v. Panizzon (1996) 13 Cal.4th 68 , 83, 51 Cal.Rptr.2d 851 , 913 P.2d 1061 ["a court may rely upon a defendant's validly executed waiver form as a proper substitute for a personal admonishment"].)

Oregon Revised Statute section 135.385 codifies Boykin by requiring the trial court to inform the defendant that by pleading guilty or no contest, the defendant waives the right to a jury trial, the right to confront witnesses, and

The totality of the circumstances in this case demonstrates that defendant's plea was voluntary and intelligent. Defendant signed the plea petition, which advised him that he had the choice of pleading not guilty, and that he had a right to jury trial, to confront witnesses, and to invoke the privilege against self-incrimination. Defendant also acknowledged by signing the

DISPOSITION

The judgment is affirmed.

We concur:

MANELLA, J.

COLLINS, J.