People v. Farwell

Defendant, Randolph Farwell, entered a stipulation through his counsel that admitted all of the elements of a charged crime, making it tantamount to a guilty plea. The question is how to assess the validity of the

was suspended for a failure to appear, and ... when he drove, he knew his license was suspended." The stipulation encompassed all of the elements of Vehicle Code section 14601.1, subdivision (a), as alleged in count 2. (See CALCRIM No. 2220.) The court instructed the jury that it must accept the stipulated facts as true. When the stipulation was entered, the court did not advise Farwell of the constitutional rights implicated by a guilty plea or the stipulation. Nor did it solicit a personal waiver of those rights.

The jury found Farwell guilty as charged. He was sentenced to 13 years in prison for vehicular manslaughter, with a concurrent term of six months for the misdemeanor conviction.

A divided Court of Appeal rejected Farwell's challenge to his conviction for driving with a suspended license. Acknowledging that the stipulation was tantamount to a guilty plea, the majority applied the totality of the circumstances test from Howard , supra , 1 Cal.4th 1132 , 5 Cal.Rptr.2d 268 , 824 P.2d 1315 . Considering Farwell's criminal history, the trial court's instructions to the panel during jury selection, and the fact that Farwell was in the midst of a jury trial when the stipulation was entered, the court held that "defendant knew of and waived his constitutional rights when he and his counsel made the strategic decision to enter the stipulation." Writing in dissent, Justice Mosk concluded that a " 'totality of the circumstances' " review could not be performed in a "silent record" case, which he defined as a circumstance where there "was no express advisement

( Cross ); In re Mosley (1970) 1 Cal.3d 913 , 924-925, 83 Cal.Rptr. 809 , 464 P.2d 473 .) Accordingly, the record must demonstrate that the defendant voluntarily and intelligently waived his constitutional trial rights. ( North Carolina v. Alford (1970) 400 U.S. 25 , 31, 91 S.Ct. 160 , 27 L.Ed.2d 162 ; Boykin , at p. 244, 89 S.Ct. 1709 ; Howard , supra , 1 Cal.4th at p. 1175, 5 Cal.Rptr.2d 268 , 824 P.2d 1315 .)

( Cross , at pp. 179-180, 187 Cal.Rptr.3d 139 , 347 P.3d 1130 , quoting Mosby , supra , 33 Cal.4th at p. 365, 15 Cal.Rptr.3d 262 , 92 P.3d 841 .) Applying this test, we concluded the record was insufficient: "The court did not ask whether Cross had discussed the stipulation with his lawyer; nor did it ask any questions of Cross personally or in any way inform him of his right to a fair determination of the prior conviction allegation. [Citation.] The stipulation occurred during the prosecutor's examination of the first witness in the trial; the defense had not cross-examined any witness at that point. [Citation.] Further, we have no information on how the alleged prior conviction was obtained." ( Cross , at p. 180, 187 Cal.Rptr.3d 139 , 347 P.3d 1130 .)

Farwell urges that Cross did not intend to overrule Mosby inasmuch as Mosby had drawn a distinction between silent record cases and incomplete advisement cases. Mosby did summarize the holdings of several Court of Appeal cases involving silent records ( Mosby , supra , 33 Cal.4th at pp. 361-362, 15 Cal.Rptr.3d 262 , 92 P.3d 841 ), and observed, "In all of the cases just discussed a jury trial on a substantive offense preceded the defendants' admissions of prior convictions. These defendants were not told on the record of their right to trial to determine the truth of a prior conviction allegation. Nor did they expressly waive their right to trial. 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 p. 362, 15 Cal.Rptr.3d 262 , 92 P.3d 841 ). This statement, however, was dictum. Mosby was advised of his right to a jury trial on the prior conviction allegation. ( Id . at p. 358, 15 Cal.Rptr.3d 262 , 92 P.3d 841 .) Thus, we had no occasion to consider what test applies when the defendant is not advised of any of his trial rights. It was unnecessary for Cross to overrule Mosby .

Farwell argues that Mosby "made a clear statement that the circumstantial evidence test is not applicable to silent record cases." He quotes the following passage: "[I]f the transcript does not reveal complete advisements and waivers, the reviewing court must examine the record of 'the entire proceeding'...." ( Mosby , supra , 33 Cal.4th at p. 361, 15 Cal.Rptr.3d 262 , 92 P.3d 841 .) According to Farwell, our use of the word "complete" means that the Howard test applies to "incomplete" advisements, but not silent record cases. He reads too much into this single word. Mosby 's use of the word "complete" correlates with the record before it, which involved an incomplete advisement. It does not stand for the proposition that the totality of the circumstances test cannot be applied in silent record cases. That issue was simply not before the court.

We now hold that the Howard totality of the circumstances test applies in all circumstances where the court fails, either partially or completely, to advise and take waivers of the defendant's trial rights before accepting a guilty plea. Howard explained that "the high court has never read

Boykin as requiring explicit admonitions on each of the three constitutional rights. Instead the court has said that the standard for determining the validity of a guilty plea 'was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.' [Citations.] 'The new element added in Boykin ' was not a requirement of explicit admonitions and waivers but rather

self-incrimination, the right to jury trial, and the right to confrontation on equal footing: "We cannot presume a waiver of these three important federal rights from a silent record." ( Boykin , at p. 243, 89 S.Ct. 1709 , italics added.) Howard 's test is similarly unamenable to Farwell's proffered interpretation. An inquiry into whether the totality of the circumstances affirmatively shows that the plea is voluntary and intelligent bears no relation to prioritizing the rights at issue. (See, e.g., People v. Sovereign (1993) 27 Cal.App.4th 317 , 320-321, 39 Cal.Rptr.2d 38 [applying Howard test where defendant was advised of his right to confrontation and his privilege against compelled self-incrimination, but not his right to a jury trial].)

It bears emphasis that silent record cases will face their own practical hurdle. The failure to advise a defendant of any trial rights will make it much harder to demonstrate a plea was properly accepted. Under Howard , the record must " affir matively show

A comparison of the circumstances surrounding the plea negotiations with the circumstances of the later stipulation brings this point into focus. In pretrial discussions, defense counsel indicated that she had conferred with her client and that he was willing to plead no contest to the charge of driving while his license was suspended or revoked, "so that can be an issue taken out of the hands of the jury ." (Italics added.) As noted, Farwell's offer to plead no contest was resisted by the prosecutor and ultimately rejected by the court. The prosecutor did offer to accept a plea on the vehicular manslaughter charge, and the court discussed that offer with Farwell. During that discussion, the court summarized the charges and explained Farwell's basic trial rights as follows: "[T]he prosecutor will present her witnesses" and "defense counsel will point out the problems with the case, if you will, or at least attack some of the testimony. That's her job, is to confront those witnesses." The court then explained that "when it's all said and done, 12 people there, having heard all this testimony, and having also heard the strengths and weaknesses of the case" would either return a verdict of guilty, not guilty, or fail to reach a verdict. Noting that the prosecutor had offered a plea bargain of 13 years in prison, the court asked Farwell whether he "had an opportunity to process that, think about it, talk to his family about it, understand and weigh that, and realize the risks and benefits of what a jury could do , what a sentencing court could do, and have a response to that particular offer?" (Italics added.) Farwell replied, "Yes sir. I disagree." After the jurors were sworn, the court instructed them in Farwell's presence that the "defendant has pleaded not guilty to the charge or charges," and that he "is presumed to be innocent. This presumption

stipulation when Farwell was neither advised of, nor expressly waived, his privilege against self-incrimination, or his rights to jury trial and confrontation. People v. Howard (1992) 1 Cal.4th 1132 , 5 Cal.Rptr.2d 268 , 824 P.2d 1315 ( Howard ) held that a plea is valid notwithstanding the lack of express advisements and waivers "if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances." ( Id . at p. 1175, 5 Cal.Rptr.2d 268 , 824 P.2d 1315 .) Some appellate courts have concluded, however, that the Howard test only applies to "incomplete" advisements but not to "silent records," where there is a total absence of advisements and waivers. We hold that the totality of the circumstances test applies in silent record cases as well. Applying that test, the record fails to affirmatively show that Farwell understood his counsel's stipulation had the effect of waiving his constitutional trial rights. The stipulation was the only basis for the jury's misdemeanor verdict. We reverse the Court of Appeal's judgment affirming that conviction.

to, or waiver by, defendant of his constitutional rights at the time of the stipulation." Relying on People v. Mosby (2004) 33 Cal.4th 353 , 15 Cal.Rptr.3d 262 , 92 P.3d 841 ( Mosby ), Justice Mosk concluded that "[i]n silent record cases, a reviewing court cannot infer that the defendant knowingly and intelligently waived his rights to trial, to remain silent, and to confront witnesses." Accordingly, he would hold that "reversal [was] required ... without a harmless error analysis."

"Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial." ( Boykin v. Alabama (1969) 395 U.S. 238 , 243, 89 S.Ct. 1709 , 23 L.Ed.2d 274 ( Boykin ).) These include the privilege against self-incrimination, the right to trial by jury, and the right to confrontation. ( Ibid . ) The effect of a stipulation for purposes of Boykin "is defined by the rights a defendant surrenders." ( People v. Robertson (1989) 48 Cal.3d 18 , 40, 255 Cal.Rptr. 631 , 767 P.2d 1109 .) A stipulation that admits all of the elements of a charged crime necessary for a conviction is tantamount to a guilty plea. ( People v. Little (2004) 115 Cal.App.4th 766 , 776-778, 9 Cal.Rptr.3d 446 ; cf. People v. Cross (2015) 61 Cal.4th 164 , 171, 174-175, 187 Cal.Rptr.3d 139 , 347 P.3d 1130

counts of robbery with a possible punishment of death. At arraignment, he pleaded guilty to all charges. The Supreme Court observed that "the judge asked no questions of petitioner concerning his plea, and petitioner did not address the court." ( Id . at p. 239, 89 S.Ct. 1709 .) The defendant received a jury trial on the question of punishment and was sentenced to death. ( Id . at p. 240, 89 S.Ct. 1709 .) The Supreme Court held that "[w]hat is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought...." (

Mosby was told of and expressly waived his right to jury trial. He was not advised of his right against self-incrimination or to confront adverse witnesses, nor did he expressly waive those rights. (

system is relevant to a recidivist's " 'knowledge and sophistication regarding his [legal] rights.' " ' "

'the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.' " ( Howard , supra , 1 Cal.4th at p. 1177, 5 Cal.Rptr.2d 268 , 824 P.2d 1315 .) This inquiry does not depend on the presence of at least one Boykin admonition. Rather,

[ ]" that the defendant's waiver of constitutional rights was voluntary and intelligent. ( Howard , supra , 1 Cal.4th at p. 1179, 5 Cal.Rptr.2d 268 , 824 P.2d 1315 , italics added.) The absence of express advisements is particularly troublesome in the context of stipulations that are tantamount to a guilty plea. When the defendant's counsel enters into such a stipulation, the record must affirmatively demonstrate that the defendant understood the agreement effectively extinguished his trial rights. (See Collins , supra , 26 Cal.4th at p. 305, 109 Cal.Rptr.2d 836 , 27 P.3d 726 ; Adams , supra , 6 Cal.4th at p. 577, 24 Cal.Rptr.2d 831 , 862 P.2d 831 .)

Applying the Howard totality of circumstances test, the Court of Appeal majority concluded that Farwell "knew of and waived his constitutional rights when he and his counsel made the strategic decision to enter the stipulation." The majority focused on comments the trial court made to Farwell and to the jury in his presence about the charged crimes, the People's burden of proof, Farwell's right to cross-examine witnesses and his right not to testify. It also concluded that Farwell was aware of his constitutional rights "because he was in the midst of that very jury trial, after a witness had been called and cross examined when he and his attorney made the strategic trial decision to stipulate to the elements of count 2." Finally, it noted that Farwell had two prior convictions and that his previous experience in the criminal justice system was relevant to demonstrate his knowledge of his legal rights.

We need not decide whether these circumstances affirmatively demonstrate that Farwell was aware of his constitutional trial rights as a general matter. Instead, we find the record insufficient for another reason: There is no affirmative showing that Farwell understood he was waiving his trial rights by

requires that the People prove a defendant guilty beyond a reasonable doubt." "Unless the [People's] evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty."

Unlike the express discussions on the subject of Farwell's change of plea, the circumstances preceding the stipulation are cryptic at best. After the People's first witness, defense counsel asked to approach the bench for an unreported discussion, apparently without Farwell's presence. Thereafter, the court simply read the stipulation into the record and informed the jury of its conclusive evidentiary effect. The court did not discuss the stipulation or its legal effect with Farwell. Nor did counsel confirm on the record that she had done so. The People urge us to infer that she did. (Citing People v. Barrett (2012) 54 Cal.4th 1081 , 1105, 144 Cal.Rptr.3d 661 , 281 P.3d 753 .) The way this stipulation was handled makes such an assumption unwarranted. When Farwell's counsel entered the stipulation, Farwell had rejected the plea offer and was in the midst of a jury trial. The trial court had refused to accept his no contest plea to count 2. Farwell would correctly have understood that he was accused of both crimes and that the prosecution bore the burden of proving him guilty. There is no affirmative evidence that Farwell understood

concluded that the defendant's admission of the prior conviction was valid despite the absence of an explicit admonition on the privilege against self-incrimination. ( Howard , at p. 1180, 5 Cal.Rptr.2d 268 , 824 P.2d 1315 .)

Although Howard involved an admission of a prior conviction, subsequent cases have assumed that the totality of the circumstances test also applies when a defendant pleads guilty to a substantive offense. ( People v. Allen (1999) 21 Cal.4th 424 , 439, fn. 4, 87 Cal.Rptr.2d 682 , 981 P.2d 525 [citing cases]; People v. Collins (2001) 26 Cal.4th 297 , 310-311, 109 Cal.Rptr.2d 836 , 27 P.3d 726 ( Collins ).) This approach makes good sense. Howard interpreted Boykin , which involved a guilty plea to a substantive offense, and Howard 's logic applies with equal force in both contexts.

In Mosby , supra , 33 Cal.4th 353 , 15 Cal.Rptr.3d 262 , 92 P.3d 841 , we again considered the validity of the defendant's admission of a prior conviction when he had received incomplete Boykin admonitions.

under the totality of the circumstances.' " ( Cross , at p. 179, 187 Cal.Rptr.3d 139 , 347 P.3d 1130 , quoting Howard , supra , 1 Cal.4th at p. 1175, 5 Cal.Rptr.2d 268 , 824 P.2d 1315 .) We quoted Mosby for the proposition that "in applying the totality of the circumstances test, a reviewing court must 'review[ ] the whole record, instead of just the record of the plea colloquy,' and that 'previous experience in the criminal justice

be deemed harmless if the record affirmatively shows, based on the totality of the circumstances, that the defendant's waiver was knowing and voluntary." ( Blackburn , supra , 61 Cal.4th at p. 1136, 191 Cal.Rptr.3d 458 , 354 P.3d 268 , citing Howard , supra , 1 Cal.4th at p. 1178, 5 Cal.Rptr.2d 268 , 824 P.2d 1315 .) Howard had expressly rejected a rule of automatic reversal. ( Howard , at pp. 1177-1178, 5 Cal.Rptr.2d 268 , 824 P.2d 1315 .) Nothing in Blackburn calls that holding into question.

Farwell also urges a distinction between waiver of the right to jury trial on the one hand, and the privilege against self-incrimination and right to confrontation on the other. He argues: "In the context of a defendant who is about to plead guilty, Howard and its progeny have applied the 'totality of the circumstances' test only to the failure of the trial court to warn and obtain express waivers of the rights to avoid self-incrimination and to confront and cross-examine witnesses. That test has not been applied when the jury waiver was not express, voluntary and intelligent." Neither Boykin nor Howard supports this attempted distinction. When crafting its holding, the Boykin court looked to standards for waivers in other contexts, including the voluntariness of a defendant's confession. ( Boykin , supra , 395 U.S. at p. 242, 89 S.Ct. 1709 , citing Jackson v. Denno (1964) 378 U.S. 368 , 387, 84 S.Ct. 1774 , 12 L.Ed.2d 908 .) It nowhere suggested that the right to jury trial was superior to the constitutional rights discussed by analogy, or to the other trial rights implicated by a plea of guilty. On the contrary, Boykin placed the privilege against

virtue of the stipulation entered on his behalf.