People v. Cross , 61 Cal. 4th 164 ( 2015 )


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  • Filed 5/18/15
    IN THE SUPREME COURT OF CALIFORNIA
    THE PEOPLE,                          )
    )
    Plaintiff and Respondent, )
    )                              S212157
    v.                        )
    )                        Ct.App. 3 C070271
    JOSHUA CROSS,                        )
    )                       Sacramento County
    Defendant and Appellant.  )                    Super. Ct. Nos. 09F06395,
    )                            11F03888
    ____________________________________)
    Penal Code section 273.5 defines various domestic violence crimes.
    Defendant Joshua Cross was charged with felony infliction of corporal injury in
    violation of section 273.5, subdivision (a) (hereafter section 273.5(a)). The
    information further alleged that Cross had suffered a prior conviction under
    section 273.5. At trial, Cross stipulated to the prior conviction, and the trial court
    accepted the stipulation without advising Cross of any trial rights or eliciting his
    waiver of those rights. The jury found Cross guilty of the charged offense under
    section 273.5(a) and also found true the prior conviction allegation. As provided
    in section 273.5, former subdivision (e) (now § 273.5, subd. (f)), Cross‘s prior
    conviction exposed him to a prison term of two, four, or five years instead of two,
    three, or four years. The trial court sentenced Cross to the maximum term of five
    years.
    1
    On appeal, Cross argues that, because his unwarned stipulation to the prior
    conviction had the direct consequence of subjecting him to a longer prison term,
    the stipulation was invalid under In re Yurko (1974) 
    10 Cal. 3d 857
    (Yurko). We
    agree and therefore conclude that Cross‘s sentence must be set aside.
    I.
    On May 20, 2011, Cross went to see the mother of his children at her
    apartment. In the course of a dispute, Cross slapped, punched, and choked her,
    resulting in a charge of felony infliction of corporal injury in violation of Penal
    Code section 273.5(a). (All undesignated statutory references are to the Penal
    Code.) A violation of section 273.5(a) is punishable by two, three, or four years in
    prison or up to one year in the county jail.
    The information further alleged that Cross had previously been ―convicted
    of the crime of spousal abuse in violation of Section 273.5 of the Penal Code,
    within the meaning of the [sic] Section 273.5(e)(1) of the Penal Code.‖ Section
    273.5 provides that ―[a]ny person convicted of violating this section for acts
    occurring within seven years of a previous conviction under subdivision (a) . . .
    shall be punished by imprisonment in a county jail for not more than one year, or
    by imprisonment in the state prison for two, four, or five years, or by both
    imprisonment and a fine . . . .‖ (§ 273.5, former subd. (e)(1), as amended by Stats.
    2007, ch. 582, § 1, p. 4894; see Stats. 2013, ch. 763, § 1 [redesignating former
    subd. (e)(1) as subd. (f)(1)]; hereafter section 273.5(f)(1).)
    At trial, defense counsel stipulated that ―[o]n January 15, 2010, [Cross] was
    convicted of a felony violation of Penal Code Section 273.5 . . . in relation to [a]
    domestic violence incident on August 14th of 2009.‖ The trial court accepted this
    stipulation without advising Cross of any trial rights or the penal consequences of
    admitting a prior conviction.
    2
    A jury convicted Cross of violating section 273.5(a) and found true the
    allegation that he suffered the prior conviction. In light of the prior conviction, the
    trial court sentenced him to the maximum term of five years for his current section
    273.5(a) offense.
    On appeal, Cross challenged the true finding on the prior conviction
    allegation on the ground that he did not knowingly and voluntarily waive his trial
    rights before stipulating to the prior conviction. The Court of Appeal rejected
    Cross‘s argument and affirmed the sentence. Relying on People v. Witcher (1995)
    
    41 Cal. App. 4th 223
    (Witcher) and declining to follow People v. Shippey (1985)
    
    168 Cal. App. 3d 879
    (Shippey), the court concluded that ―the stipulation to the
    existence of a prior conviction was not tantamount to admitting all the elements of
    an enhancement; rather, the existence of the prior conviction was instead a
    sentencing factor authorizing the trial court to impose a more severe alternative
    sentencing scheme. As a result, the trial court was not required to advise
    defendant of his fundamental trial rights and solicit waivers of them before giving
    effect to the stipulation.‖ We granted review.
    II.
    When a criminal defendant enters a guilty plea, the trial court is required to
    ensure that the plea is knowing and voluntary. (See Boykin v. Alabama (1969) 
    395 U.S. 238
    , 243–244 (Boykin).) As a prophylactic measure, the court must inform
    the defendant of three constitutional rights — the privilege against compulsory
    self-incrimination, the right to trial by jury, and the right to confront one‘s
    accusers — and solicit a personal waiver of each. (People v. Howard (1992) 
    1 Cal. 4th 1132
    , 1179 (Howard); see Boykin, at pp. 243–244; In re Tahl (1969) 
    1 Cal. 3d 122
    , 130–133 (Tahl).) Proper advisement and waiver of these rights,
    conducted with ―the utmost solicitude of which courts are capable,‖ are necessary
    3
    ―to make sure [the accused] has a full understanding of what the plea connotes and
    of its consequence.‖ (Boykin, at pp. 243–244.)
    In 
    Yurko, supra
    , 
    10 Cal. 3d 857
    , we unanimously held that the same
    requirements of advisement and waiver apply when a defendant admits the truth of
    a prior conviction allegation that subjects him to increased punishment. The
    defendant in Yurko admitted, without adequate advisement or waiver, the truth of
    three prior felony convictions, resulting in an enhanced sentence of life
    imprisonment for his current first degree burglary offense. (Id. at p. 860 & fn. 1.)
    We explained: ―Because of the significant rights at stake in obtaining an
    admission of the truth of allegations of prior convictions, which rights are often of
    the same magnitude as in the case of a plea of guilty, courts must exercise a
    comparable solicitude in extracting an admission of the truth of allegations of prior
    convictions. . . . As an accused is entitled to a trial on the factual issues raised by
    a denial of the allegation of prior convictions, an admission of the truth of the
    allegation necessitates a waiver of the same constitutional rights as in the case of a
    plea of guilty. The lack of advice of the waivers so to be made, insofar as the
    record fails to demonstrate otherwise, compels a determination that the waiver was
    not knowingly and intelligently made.‖ (Id. at p. 863.) We concluded that
    ―Boykin and Tahl require, before a court accepts an accused‘s admission that he
    has suffered prior felony convictions, express and specific admonitions as to the
    constitutional rights waived by an admission. The accused must be told that an
    admission of the truth of an allegation of prior convictions waives, as to the
    finding that he has indeed suffered such convictions, the same constitutional rights
    waived as to a finding of guilt in case of a guilty plea.‖ (Ibid.)
    We went on to say that a defendant must also be advised of ―the full penal
    effect of a finding of the truth of an allegation of prior convictions.‖ (
    Yurko, supra
    , 10 Cal.3d at p. 865.) We held ―as a judicially declared rule of criminal
    4
    procedure‖ that an accused, before admitting a prior conviction allegation, must be
    advised of the precise increase in the prison term that might be imposed, the effect
    on parole eligibility, and the possibility of being adjudged an habitual criminal.
    (Id. at p. 864.)
    In Howard, we reaffirmed Yurko‘s requirements of ―explicit admonitions
    and waivers.‖ 
    (Howard, supra
    , 1 Cal.4th at pp. 1178–1179.) But we clarified that
    Yurko error is not reversible per se. Instead, the test for reversal is whether ―the
    record affirmatively shows that [the guilty plea] is voluntary and intelligent under
    the totality of the circumstances.‖ (Howard, at p. 1175; see People v. Mosby
    (2004) 
    33 Cal. 4th 353
    , 361–365 (Mosby) [applying Howard‘s totality of the
    circumstances test].)
    In addition, our case law since Yurko has drawn a distinction between, on
    one hand, ―a defendant‘s admission of evidentiary facts which [does] not admit
    every element necessary to conviction of an offense or to imposition of
    punishment on a charged enhancement‖ and, on the other, ―an admission of guilt
    of a criminal charge or of the truth of an enhancing allegation where nothing more
    [is] prerequisite to imposition of punishment except conviction of the underlying
    offense.‖ (People v. Adams (1993) 
    6 Cal. 4th 570
    , 577 (Adams).) The
    requirements of Boykin-Tahl and Yurko apply to the latter type of admission but
    not the former. (Adams, at pp. 580–583.)
    In Adams, for example, we held that a mere stipulation to being on bail
    ―does not admit the truth of . . . every fact necessary to imposition‖ of additional
    punishment under section 12022.1 and therefore ―does not have the definite penal
    consequences necessary to trigger the Boykin-Tahl requirements.‖ 
    (Adams, supra
    ,
    6 Cal.4th at p. 580.) Similarly, in People v. Newman (1999) 
    21 Cal. 4th 413
    (Newman), we held that the Boykin-Tahl requirements did not apply to the
    defendant‘s stipulation to his status as a felon because ―no penal consequences
    5
    flowed directly from the stipulation, and the prosecutor still was required to prove
    the remaining elements of the [felon in possession of a firearm] offense.‖
    (Newman, at p. 422.) Adams and Newman make clear that the Boykin-Tahl
    requirements do not apply to a stipulation of ―evidentiary facts, even facts crucial
    to a conviction,‖ if the stipulation does not encompass ―all of the evidentiary facts
    necessary to imposition of the additional penalty.‖ (Adams, at p. 582.)
    With these principles in mind, we turn to the case before us.
    III.
    At the outset, the Attorney General argues that Cross has forfeited his claim
    because he did not object to the lack of advisement and waiver at trial. Although
    the Attorney General did not raise this issue in the Court of Appeal (see Cal. Rules
    of Court, rule 8.500(c)(1)), it presents a ―pure question[] of law, not turning upon
    disputed facts.‖ (People v. Superior Court (Ghilotti) (2002) 
    27 Cal. 4th 888
    , 901,
    fn. 5.) Accordingly, we shall exercise our discretion to address the forfeiture issue
    before turning to the merits of Cross‘s claim.
    A.
    In support of forfeiture, the Attorney General relies on People v. Vera
    (1997) 
    15 Cal. 4th 269
    (Vera), where we held that ―[a]bsent an objection to the
    discharge of the jury or commencement of court trial, defendant is precluded from
    asserting on appeal a claim of ineffectual waiver of the statutory right to jury trial
    of prior prison term allegations.‖ (Id. at p. 278.) We explained that the right to
    have a jury determine the truth of a prior conviction allegation ―is derived from
    statute,‖ not from the state or federal Constitution, and does not implicate any
    constitutional requirement of express and personal waiver. (Vera, at pp. 277–278;
    see § 1025.) A defendant is ―therefore obligated to bring the alleged error to the
    attention of the trial court in order to preserve his claim for appellate review.‖
    (Vera, at p. 281.)
    6
    Vera is inapposite here, however, because the defendant in Vera did not
    admit the truth of a prior conviction allegation. Instead, Vera waived his statutory
    right to a jury trial in favor of a bench trial. 
    (Vera, supra
    , 15 Cal.4th at p. 273.)
    We said the denial of a jury trial on the prior prison term allegations raised no due
    process concerns because Vera ―does not assert, nor does the record in this case
    suggest, he was denied a fair trial.‖ (Id. at p. 280; see 
    id. at p.
    281 [―[T]he
    substitution of a fair court trial for jury trial on a sentence enhancement allegation
    does not constitute a violation of federal due process.‖].) Thus, the forfeiture in
    Vera arose from the defendant‘s acquiescence to a bench trial instead of a jury
    trial, not from his acquiescence to no trial at all.
    Notably, our opinion in Vera strongly implied that defendants have a due
    process right to receive a fair trial on the truth of prior prison term allegations.
    (See 
    Vera, supra
    , 15 Cal.4th at p. 281 [―So long as defendant received a fair court
    trial on the truth of the prior prison term allegations . . . his claim of ineffectual
    waiver does not constitute a federal due process claim.‖]; 
    id. at p.
    280 [―[B]ecause
    defendant was afforded a fair determination of the truth of the prior prison term
    allegations by the trial court sitting as a trier of fact, he was afforded ‗due process
    of law . . . .‘ ‖].) Although post-Yurko case law has clarified that there is no
    constitutional right to a jury trial on a prior conviction allegation (see Vera, at
    pp. 274, 277; People v. Wiley (1995) 
    9 Cal. 4th 580
    , 589; Almendarez-Torres v.
    United States (1998) 
    523 U.S. 224
    ), Yurko correctly concluded that ―an accused is
    entitled to a trial on the factual issues raised by a denial of the allegation of prior
    convictions . . . .‖ (
    Yurko, supra
    , 10 Cal.3d at p. 863, italics added.) Indeed, it is
    well established that, while there is no single ― ‗best‘ recidivist trial procedure,‖
    due process requires ―adequate notice‖ and ―an opportunity to challenge the
    accuracy and validity of the alleged prior convictions.‖ (Spencer v. Texas (1967)
    
    385 U.S. 554
    , 567; see Oyler v. Boles (1962) 
    368 U.S. 448
    , 452 [―[A] defendant
    7
    must receive reasonable notice and an opportunity to be heard relative to the
    recidivist charge . . . .‖].) When a defendant forgoes this basic protection, his or
    her decision must be ―knowingly and intelligently made.‖ (Yurko, at p. 863.)
    Cross‘s unwarned stipulation to the truth of the prior conviction allegation did not
    merely waive a jury trial; it waived any trial at all.
    In this context, we find instructive our recent decision in People v. Palmer
    (2013) 
    58 Cal. 4th 110
    , which held that the defendant did not forfeit a claim that
    the trial court violated section 1192.5 by making an inadequate inquiry into the
    factual basis for his guilty plea. (Palmer, at p. 117.) Palmer ―waived a
    preliminary hearing and probation report, and he acknowledged having discussed
    the charge and defenses with his counsel as well as his satisfaction with the advice
    he received. Defendant did not assert below that the procedure the trial court
    followed failed to satisfy section 1192.5, and he made no claim that the court or
    counsel should have identified a document or documents supporting the factual
    basis of the plea.‖ (Id. at pp. 115–116.) The Attorney General argued forfeiture,
    relying on Vera. But we said that Vera‘s ―application in the present context would
    be inappropriate, given the prophylactic purpose behind the factual basis
    requirement, a purpose analogous to that behind the prophylactic advisements of
    applicable federal constitutional rights given a defendant before his or her guilty
    plea is taken, which ‗helps ensure that the ―constitutional standards of
    voluntariness and intelligence are met.‖ ‘ ([Citation]; cf. Boykin v. Alabama
    (1969) 
    395 U.S. 238
    , 243 . . . .)‖ (Palmer, at p. 116.) The same constitutional
    standards of voluntariness and intelligence apply when a defendant forgoes a trial
    on a prior conviction allegation. (
    Yurko, supra
    , 10 Cal.3d at pp. 863, 865.) Thus,
    just as Palmer could not forfeit his claim that the trial court should have ensured
    his plea was voluntary and knowing by inquiring into its factual basis, Cross
    cannot forfeit his claim that the trial court should have ensured his stipulation was
    8
    voluntary and knowing by advising him of his right to ―a fair determination of the
    truth of the prior [conviction] allegation[].‖ 
    (Vera, supra
    , 15 Cal.4th at p. 280.)
    B.
    We turn now to the merits of Cross‘s appeal. The Attorney General argues
    that this case is indistinguishable from Adams. In Adams, the defendant was
    charged with several theft-related crimes. 
    (Adams, supra
    , 6 Cal.4th at p. 574,
    fn. 3.) The information alleged that he committed these offenses while ―released
    from custody‖ under section 12022.1 pending trial for another crime. (Adams, at
    p. 574.) Adams stipulated that at the time he allegedly committed the theft-related
    offenses, he was ― ‗out of custody on his own recognizance, or on bail for other
    charges . . . .‘ ‖ (Ibid.) The jury convicted him of the theft-related offenses and
    found the ―on bail‖ allegation true. (Id. at p. 575.)
    On appeal, Adams argued that the trial court was required to give him
    Boykin-Tahl admonitions before accepting his stipulation. We disagreed,
    explaining that Adams ―stipulated only that he had been released on bail when the
    offense charged against him was committed. Before the enhanced penalty
    authorized by section 12022.1 could be imposed the People not only had to prove
    that defendant committed the secondary offense [i.e., the current charged offense],
    but also convict him or demonstrate that he had been convicted of the primary
    offense [i.e., the offense for which he was released on bail].‖ 
    (Adams, supra
    , 6
    Cal.4th at p. 582; see 
    id. at p.
    580 [―Unless he stipulates both to the bail/own
    recognizance element of the enhancement and that he is guilty of or has been
    convicted of the primary offense, his stipulation to the former will not necessarily
    lead to imposition of the enhanced penalties authorized by section 12022.1.‖].)
    Because Adams had stipulated only that he was on bail pending trial on another
    crime and not that he was guilty of that other crime, we concluded that his
    ―stipulation that he was on bail was an ordinary evidentiary stipulation.‖ (Id. at
    9
    p. 582.) The stipulation did not admit ―every fact necessary to imposition of the
    additional punishment other than conviction of the underlying [theft-related]
    offense[s]‖ and therefore did ―not have the definite penal consequences necessary
    to trigger the Boykin-Tahl requirements.‖ (Id. at p. 580.)
    Here, by contrast, section 273.5(f) authorized the trial court to impose a
    greater punishment on Cross if the jury found that he was guilty of the charged
    offense under section 273.5(a) and that he had previously been convicted of
    violating section 273.5. Cross stipulated that he had previously been ―convicted of
    a felony violation of Penal Code Section 273.5.‖ Because he admitted ―every fact
    necessary to imposition of the additional punishment other than conviction of the
    underlying offense‖ 
    (Adams, supra
    , 6 Cal.4th at p. 580), he was entitled to receive
    Boykin-Tahl warnings before he made this admission.
    The Court of Appeal reasoned that Cross‘s ―stipulation to the existence of a
    prior conviction was not tantamount to admitting all the elements of an
    enhancement; rather, the existence of the prior conviction was instead a sentencing
    factor authorizing the trial court to impose a more severe alternative sentencing
    scheme.‖ But we do not see a meaningful distinction between an ―enhancement‖
    and an ―alternative sentence scheme‖ in this context. Cross was sentenced to five
    years in prison under section 273.5(f). But for his stipulation to a previous
    conviction of another section 273.5(a) offense within the past seven years, Cross
    faced no more than four years in prison for his current section 273.5(a) offense. In
    Adams, we said that a stipulation has ―definite penal consequences‖ if it
    establishes ―every fact necessary‖ to support an ―additional punishment.‖ 
    (Adams, supra
    , 6 Cal.4th at pp. 578, 580; accord, People v. 
    Newman, supra
    , 21 Cal.4th at
    p. 421.) A stipulation may establish every fact necessary to support an increased
    punishment even if the trial court decides not to impose that punishment. Thus,
    our cases suggest that the phrase ―definite penal consequences‖ means definite
    10
    exposure to additional punishment. Because the stipulation here established every
    fact necessary to expose Cross to a penalty beyond the four-year maximum term
    available under section 273.5(a), it resulted in a definite penal consequence.
    ―[N]othing more was prerequisite to imposition of [the elevated] punishment
    except conviction of the underlying offense . . . .‖ (Adams, at p. 577.)
    In so concluding, we follow the same approach as in Yurko, where we
    considered the ―practical aspects‖ of admitting the truth of a prior conviction
    allegation. (
    Yurko, supra
    , 10 Cal.3d at p. 862.) We said: ―The admission of the
    truth of the allegation of prior convictions has been differentiated from a plea of
    guilty through a characterization of the former as merely allowing a determination
    of a ‗status‘ which can subject an accused to increased punishment. [Citations.]
    Although this may be technically correct, the distinction is meaningless if, as in
    the case of a plea of guilty, the accused nevertheless will be held to have waived,
    without proper protections, important rights by such an admission. Undoubtedly
    the particular rights waived by an admission of the truth of the allegation of prior
    convictions are important. Although there is not at stake a question of guilt of a
    substantive crime, the practical aspects of a finding of prior convictions may well
    impose upon a defendant additional penalties and sanctions which may be even
    more severe than those imposed upon a finding of guilt without the defendant
    having suffered the prior convictions.‖ (Ibid.)
    The Attorney General argues that Yurko‘s requirement of advisement and
    waiver does not apply here because ―[s]ection 273.5([f])(1) does not set forth an
    enhancement, i.e., a term of punishment in addition to the punishment set forth for
    an underlying offense.‖ According to the Attorney General, section 273.5(f)(1)
    defines an ―aggravated offense,‖ and Cross‘s stipulation established only one
    element of the offense, leaving intact ―his right to jury trial on the present
    aggravated offense in the same way as if he had stipulated to any other element,
    11
    such as whether the victim was his cohabitant, or whether he willfully inflicted
    corporal injury.‖
    Were we to adopt this characterization of section 273.5(f)(1), however, it
    would follow that the sentencing provision at issue in Yurko also defined an
    ―aggravated offense‖ or ―alternative sentencing scheme,‖ not an ―enhancement.‖
    That provision read: ― ‗Every person convicted . . . of . . . burglary of the first
    degree . . . who shall have been previously three times convicted, upon charges
    separately brought and tried, and who shall have served separate terms therefor in
    any state prison . . . , of the crime of robbery, burglary . . . shall be adjudged an
    habitual criminal and shall be punished by imprisonment in the state prison for
    life.‘ ‖ (
    Yurko, supra
    , 10 Cal.3d at p. 860, fn. 1, quoting former § 644, subd. (b).)
    We are unable to discern any relevant difference between that language and the
    language of section 273.5(f)(1): ―Any person convicted of violating this section
    for acts occurring within seven years of a previous conviction under subdivision
    (a) . . . shall be punished by [among other options] . . . imprisonment in the state
    prison for two, four, or five years . . . .‖ Indeed, the two statutes are virtually
    parallel. But Yurko did not treat former section 644, subdivision (b) as a statute
    defining an aggravated offense, of which the prior convictions were merely one
    element. And Yurko did not parse whether former section 644, subdivision (b)
    specified an ―enhancement‖ or an ―alternative sentencing scheme.‖ Such
    nomenclature played no role in our analysis. What mattered was that the
    defendant‘s unwarned admission of prior convictions automatically exposed him
    to ―added penalties.‖ (Yurko, at p. 863.)
    The Court of Appeal relied on 
    Witcher, supra
    , 
    41 Cal. App. 4th 223
    , and
    declined to follow 
    Shippey, supra
    , 
    168 Cal. App. 3d 879
    . Both Witcher and
    Shippey involved an admission of a prior conviction allegation without Yurko
    advisements in the analogous context of section 666, which punishes petty theft
    12
    with a prior conviction. In Shippey, the defendant admitted a prior misdemeanor,
    and the Attorney General sought to ―distinguish the instant case from Yurko on the
    sole basis that Yurko involved a prior felony conviction.‖ (Shippey, at p. 888.)
    The court held that Yurko‘s rationale ―does not appear to be so limited‖ (Shippey,
    at p. 888) and ―is equally applicable to an admission of a prior misdemeanor
    conviction which may result in greatly increased potential punishment‖ (
    id. at p.
    889). ―Proof of a prior under section 666 raises a misdemeanor crime
    punishable by a fine or county jail sentence to a felony punishable by
    imprisonment. In the instant case this is certainly true. Admitting the prior petty
    theft ultimately resulted in defendant‘s sentence to state prison for three years.‖
    (Id. at p. 888.) Applying Yurko, the Shippey court held that the defendant should
    have been advised of his trial rights and the consequences of his admission. (Id. at
    p. 889.)
    A decade later, the court in Witcher (without mentioning Shippey) found
    Yurko‘s requirements inapplicable to the defendant‘s admission of two prior
    conviction allegations under section 666. (
    Witcher, supra
    , 41 Cal.App.4th at
    pp. 233–234.) There the defendant, through a lengthy colloquy with the trial
    court, indicated that he wished to admit the two prior convictions in order to
    foreclose the prosecution from presenting evidence of those prior convictions. (Id.
    at pp. 228–231.) During the colloquy, the trial court advised the defendant of his
    right to a jury trial, but he ―was never advised of his privilege against compulsory
    self-incrimination and his right to confront his accusers,‖ he ―did not expressly
    waive those rights,‖ and he ―was never informed of the penal consequences of his
    admission of the priors.‖ (Id. at p. 231; see 
    id. at p.
    234 [under § 666, prior
    convictions ―serve to raise a petty theft to a felony with attendant penal
    consequences‖].) Despite these ―mistakes‖ (
    id. at p.
    231), the Witcher court
    explained that ―appellant‘s pretrial ‗admission‘ of [the prior convictions] was, in
    13
    effect, a stipulation to their validity for the purpose of keeping them from the jury.
    Appellant has cited no authority for the proposition that a defendant must be
    admonished about his constitutional rights when he enters into such a self-serving
    stipulation, and we decline to create such authority. He has received the benefit of
    his bargain. The prosecution was not allowed to prove his prior felony convictions
    and incarcerations before the jury. We will not now countenance an after-the-fact
    contention that his stipulation did not meet minimum constitutional standards.‖
    (Id. at pp. 233–234.) We find this reasoning unpersuasive.
    If, as the court in Witcher found, the defendant was not adequately apprised
    of his trial rights (
    Witcher, supra
    , 41 Cal.App.4th at p. 231) and, as a result, his
    admission ―cannot be said to be ‗knowing and voluntary‘ ‖ (
    id. at p.
    233), then he
    ―received the benefit of his bargain‖ (
    id. at p.
    234) only at a cost not fully known
    to him. In other words, although the trial court told the defendant what he was
    getting by stipulating to the prior convictions, the court did not make him fully
    aware of what he was giving up.
    It may be that many defendants who admit a prior conviction do so in order
    to obtain some benefit. But the fact that a defendant may derive a benefit is not
    itself a sufficient reason to dispense with proper advisement. This court in Yurko
    was aware that ―[t]here are many tenable reasons‖ why a defendant might ―admit
    charges of prior convictions. For instance, when an accused admits priors they
    may not be alluded to in any way during trial except for impeachment purposes if
    he elects to testify. [Citations.] Further, a denial of priors would result not only in
    their existence being brought to the attention of the jury, but it would give undue
    emphasis to such priors as the People would then be required to submit proof
    thereof.‖ (
    Yurko, supra
    , 10 Cal.3d at p. 866; cf. 
    Boykin, supra
    , 395 U.S. at p. 240
    [―Trial strategy may of course make a plea of guilty seem the desirable course.‖].)
    But such considerations had no bearing on our rationale for the necessity of
    14
    advisement. (Yurko, at pp. 862–863.) To be sure, the particular benefit sought by
    a defendant in admitting a prior conviction may reveal the extent of his awareness
    of his trial rights or the penal consequences of his admission. For example, a
    desire to keep a prior conviction away from the jury demonstrates a defendant‘s
    awareness of the right to a jury trial. But the mere fact of receiving a benefit,
    without more, does not preclude a defendant from claiming inadequate
    advisement.
    The Court of Appeal in this case, noting that ―unlike in Witcher,
    defendant‘s stipulation did not result in the benefit of keeping the facts of the prior
    conviction out of evidence,‖ seized on a different aspect of Witcher‘s reasoning.
    Witcher observed that proof of prior convictions neither constitutes an element of
    the section 666 offense nor results in a sentencing enhancement under section 666
    as it does under section 667, subdivisions (c), (d), and (e), and section 667.5,
    subdivision (b). (
    Witcher, supra
    , 41 Cal.App.4th at pp. 226, 233–234.) Relying
    on this taxonomy as well as other cases that have said (in the context of pleading
    requirements) that section 666 does not establish an enhancement or a substantive
    offense (see, e.g., People v. Robinson (2004) 
    122 Cal. App. 4th 275
    , 281–282), the
    Court of Appeal here advanced the theory that section 273.5(f), like section 666, is
    an ―alternative sentencing scheme‖ and, as such, does not implicate Boykin, Tahl,
    or Yurko.
    It is true that some of our cases have distinguished between a sentence
    enhancement and an alternative sentencing scheme. (See, e.g., Robert L. v.
    Superior Court (2003) 
    30 Cal. 4th 894
    , 898–900; People v. Acosta (2002) 
    29 Cal. 4th 105
    , 118–120.) But we have also recognized that the distinction is not
    always relevant. (See, e.g., People v. Bouzas (1991) 
    53 Cal. 3d 467
    , 476–479
    [repeatedly stating that § 666 specifies a sentencing ―enhancement‖].) Neither
    Witcher nor the Court of Appeal in this case explained why the characterization of
    15
    section 666 or former 273.5(f)(1) as an ―alternative sentencing scheme‖ and not an
    ―enhancement‖ should make a difference from the standpoint of the substantive
    concerns animating our decision in Yurko. Yurko did not examine whether the
    statute at issue defined an enhancement or an alternative sentencing scheme; our
    concern was that the defendant‘s unwarned admission of prior convictions
    automatically exposed him to increased punishment. While seeming to
    acknowledge that Cross‘s stipulation likewise exposed him to increased
    punishment, the Court of Appeal said: ―Merely because an alternative sentencing
    scheme has the same effect as an enhancement does not mean it must be treated
    the same way‖ for purposes of advisement and waiver. We conclude, to the
    contrary, that Yurko applies precisely because section 273.5(f)(1) has the same
    effect as an enhancement: It makes the admission of a prior conviction, by itself, a
    sufficient ―prerequisite‖ for increased punishment, with ―nothing more‖ required
    ―except conviction of the underlying offense.‖ 
    (Adams, supra
    , 6 Cal.4th at
    p. 577.) Because Witcher‘s reasoning led the Court of Appeal to err, we
    disapprove 
    Witcher, supra
    , 
    41 Cal. App. 4th 223
    , to the extent it is inconsistent with
    this opinion, and our citation to Witcher with approval in 
    Newman, supra
    , 
    21 Cal. 4th 421
    , 423, should no longer be followed.
    As noted, Yurko was decided before our cases clarified that the right to a
    jury trial on a prior conviction allegation ―is derived from statute‖ and not from
    the state or federal Constitution. 
    (Vera, supra
    , 15 Cal.4th at p. 274.) Since then,
    we have not decided the precise contours of the advisement that is constitutionally
    required in this context. (Cf. 
    Mosby, supra
    , 33 Cal.4th at p. 360 [―When trial is
    required by statute, we shall assume . . . that a defendant‘s due process trial rights,
    at least under our state Constitution, encompass the rights to remain silent and to
    confront witnesses.‖].) We need not do so in this case either. At a minimum,
    Cross was entitled to be advised of his right to a fair determination of the truth of
    16
    the prior conviction allegation. Without such advisement, Cross ―waived, without
    proper protections, important rights by [his] admission‖ of the prior conviction.
    (
    Yurko, supra
    , 10 Cal.3d at p. 862.)
    While leaving for another day what additional advisements are
    constitutionally required, we take this opportunity to affirm the judicially created
    rule of criminal procedure requiring full Boykin-Tahl advisements for all guilty
    pleas in criminal trials regardless of whether the defendant‘s rights are derived
    from statute or from the state or federal Constitution. (See 
    Mosby, supra
    , 33
    Cal.4th at pp. 359–360; 
    Yurko, supra
    , 10 Cal.3d at p. 864 & fn. 7.) Adherence to
    this rule will provide a measure of certainty and uniformity for the trial courts.
    IV.
    The failure to properly advise a defendant of his or her trial rights is not
    reversible ―if the record affirmatively shows that [the admission] is voluntary and
    intelligent under the totality of the circumstances.‖ 
    (Howard, supra
    , 1 Cal.4th at
    p. 1175.) In Howard, we found a knowing and voluntary waiver despite a lack of
    advisement because the record ―affirmatively demonstrate[d] 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.‖ (Id. at
    p. 1180.) In 
    Mosby, supra
    , 
    33 Cal. 4th 353
    , 361, we clarified 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 system is relevant to a recidivist‘s ‗ ―knowledge
    and sophistication regarding his [legal] rights‖ ‘ ‖ (
    id. at p.
    365).
    17
    Here, the record contains no indication that Cross‘s stipulation was
    knowing and voluntary, and the Attorney General does not contend otherwise.
    After counsel read the stipulation in open court, the trial court immediately
    accepted it. 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.
    (Cf. 
    Mosby, supra
    , 33 Cal.4th at pp. 357–358.) 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. (Cf. 
    id. at p.
    364.) Further, we have no
    information on how the alleged prior conviction was obtained. (Cf. 
    id. at p.
    365.)
    Even if the complaint‘s express mention of ―Section 273.5([f])(1) of the Penal
    Code‖ was sufficient to put Cross on notice of the penal consequence of his
    stipulation, nothing in the record affirmatively shows that Cross was aware of his
    right to a fair determination of the truth of the prior conviction allegation.
    Accordingly, Cross‘s stipulation must be set aside.
    CONCLUSION
    For the reasons above, we reverse the Court of Appeal‘s judgment
    affirming the true finding on the prior conviction allegation and the five-year
    sentence. In all other respects, we affirm the Court of Appeal‘s judgment, and we
    remand for further proceedings not inconsistent with this opinion.
    LIU, J.
    WE CONCUR:
    CANTIL-SAKAUYE, C. J.
    WERDEGAR, J.
    CHIN, J.
    CORRIGAN, J.
    CUÉLLAR, J.
    KRUGER, J.
    18
    See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
    Name of Opinion People v. Cross
    __________________________________________________________________________________
    Unpublished Opinion
    Original Appeal
    Original Proceeding
    Review Granted XXX 
    216 Cal. App. 4th 1403
    Rehearing Granted
    __________________________________________________________________________________
    Opinion No. S212157
    Date Filed: May 18, 2015
    __________________________________________________________________________________
    Court: Superior
    County: Sacramento
    Judge: Greta Fall
    __________________________________________________________________________________
    Counsel:
    John Hargreaves, under appointment by the Supreme Court, and William W. Lee, under appointment by the
    Court of Appeal, for Defendant and Appellant.
    Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P.
    Farrell, Assistant Attorney General, Carlos A. Martinez, David Andrew Eldridge and Catherine Tennant
    Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
    1
    Counsel who argued in Supreme Court (not intended for publication with opinion):
    John Hargreaves
    Central California Appellate Program
    2150 River Plaza Drive, Suite 300
    Sacramento, CA 95833
    (916) 441-3792
    Catherine Tennant Nieto
    Deputy Attorney General
    1300 I Street, Suite 125
    Sacramento, CA 94244-2550
    (916) 323-6307
    2