People v. Gandy ( 2017 )

Filed 8/3/17; opinion on rehearing
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B264452
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA081997)
v.
ANTHONY EDWARD GANDY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Candace J. Beason, Judge. Affirmed.
Sunnie L. Daniels, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler and
Lance E. Winters, Assistant Attorneys General, Shawn McGahey
Webb and Blythe J. Leszkay, Deputy Attorneys General, for
Plaintiff and Respondent.
Defendant Anthony Edward Gandy appealed following his
no contest plea, in which he admitted a prior strike based on
three out-of-state felony convictions. Before entering his plea
defendant moved to dismiss his prior convictions, which resulted
from his no contest plea in 2001 to burglary and robbery charges
in Oregon, on the ground they were obtained in violation of his
1
constitutional rights under Boykin-Tahl. On appeal, defendant
argued he did not voluntarily and intelligently waive his rights
when he pleaded no contest in the Oregon proceeding, and
therefore the prior convictions could not be used to enhance his
sentence. In our original opinion, we held that defendant could
not collaterally attack his prior out-of-state convictions because
“Tahl-like requirements” did not operate in Oregon at the time of
his prior pleas. (See People v. Green (2000) 81 Cal. App. 4th 463,
471 (Green).) We also held, in the alternative, that defendant’s
plea was voluntary and intelligent under the totality of the
circumstances.
In his petition for rehearing defendant argued that
Oregon’s plea requirements are substantially similar to those of
California under Tahl and its progeny—specifically, both
jurisdictions require express, on-the-record admonitions and
waiver of rights but permit reliance on a validly executed waiver
form. Defendant also argued that our previous opinion relied on
inapplicable authority in finding that his plea was voluntary and
intelligent. We granted rehearing and directed counsel to file
supplemental briefs. The People agreed that Oregon had Tahl-
like requirements and hence defendant was permitted to
collaterally attack his prior convictions, but maintained the
1
Boykin v. Alabama (1969) 395 U.S. 238 (Boykin); In re Tahl
(1969) 1 Cal. 3d 122 (Tahl).
2
judgment should nevertheless be affirmed on our alternative
holding. After reconsidering these issues, we conclude defendant
may collaterally attack his prior convictions but the judgment
should be affirmed because his Oregon plea was voluntary and
intelligent under the totality of the circumstances.
FACTUAL AND PROCEDURAL SUMMARY
The Los Angeles District Attorney charged defendant by
information in December 2011 with seven counts: dissuading a
witness by force or threat (Pen. Code, § 136.1, subd. (c)(1)),2
assault with a semiautomatic firearm (§ 245, subd. (b)),
possession of a firearm by a felon (§ 12021, subd. (a)(1)),
possession of ammunition (§ 12316, subd. (b)(1)), sale and
transportation of a controlled substance (Health & Saf. Code, §
11379, subd. (a)), possession for sale of a controlled substance
(Health & Saf. Code, § 11378), and leaving the scene of an
accident (Veh. Code, § 20001, subd. (a)). Three prior felony
convictions were alleged as strikes (§§ 667, subds. (b)-(i), 1170.12,
subd. (a)-(d)) and as prior serious felonies (§ 667, subd. (a)(1)).
Enhancements for personal use of a firearm also were alleged.
(§§ 665, subd. (c), 1192.7, subd. (c), 12022.5, subd. (a).)
Defendant pleaded not guilty and denied the special allegations.
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 relevant Oregon statute, which provides: “‘(1) The court shall
2 Undesignated section references are to the Penal Code.
3
not accept a plea of guilty or no contest . . . without first
addressing the defendant personally and determining that the
defendant understands the nature of the charge. [¶] (2) The
court shall inform the defendant: (a) That by a plea of guilty or
no contest the defendant waives the right: [¶] [(A)] To trial by
jury; [¶] [(B)] Of confrontation; and [¶] [(C)] Against self-
incrimination.” (Or. Rev. Stat. § 135.385.) As exhibits to his
motion to dismiss, defendant attached the Oregon superseding
indictment, his signed plea petition, a transcript of the plea and
sentencing hearing, and his own declaration.
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
4
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 were satisfied
because the plea petition advised defendant of his constitutional
rights and included his acknowledgment that the plea was
executed “knowingly and voluntarily.” Defense counsel countered
that the plea petition failed to specify which rights defendant was
5
waiving; and defendant did not expressly waive his Boykin-Tahl
rights when entering his plea in open court. The trial court took
the matter under submission.
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 (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 (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.
6
DISCUSSION
I
“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.)
“In People v. Sumstine (1984) 36 Cal. 3d 909 [(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.”
(Green, supra, 81 Cal.App.4th at pp. 466-467.) “Sumstine
directed trial courts to follow the following procedure: When a
defendant makes sufficient allegations that his conviction, by
plea, in the prior felony proceedings was obtained in violation of
7
his constitutional Boykin-Tahl rights, the trial court must hold
an evidentiary hearing. At the hearing, the prosecution bears the
initial burden of producing evidence that the defendant did
indeed suffer the conviction. The defendant must then produce
evidence to demonstrate his Boykin-Tahl rights were infringed.
The prosecution then has the right to rebuttal, at which point
reliance on a silent record will not be sufficient. [Citations.]”
(People v. Allen (1999) 21 Cal. 4th 424, 435 (Allen).)
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.’”
(Sumstine, supra, 36 Cal.3d at p. 920, quoting People v. Coffey
(1967) 67 Cal. 2d 204, 215, italics omitted.)
In People v. Howard (1992) 1 Cal. 4th 1132, 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.) 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.) 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
8
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.)
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 (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.
(Custis, at p. 496.) 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.)
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.” (Garcia, supra, 14 Cal.4th at p. 956.) The
court articulated several policy considerations to support its
decision: “Such a claim [of ineffective assistance of counsel] often
will necessitate a factual investigation with regard to counsel’s
actions, omissions, and strategic decisions, requiring the parties
and the court to reconstruct events possibly remote in time, and
to scour potentially voluminous records, substantially delaying
the proceedings related to the current offense.” (Id. at p. 965.)
The court distinguished Sumstine as that case did not involve a
9
challenge to a prior conviction based on ineffective assistance of
counsel. (Garcia, at p. 964.)
In Allen, supra, 21 Cal. 4th 424, the California Supreme
Court revisited Sumstine in light of Custis and Garcia, and held
that Sumstine continues to allow a defendant to collaterally
attack a prior conviction on Boykin-Tahl grounds unless the
underlying plea preceded the decision in Tahl. (Allen, at p. 443.)
The court noted that Sumstine was not based on “constitutional
imperatives,” but on the policy judgment that it is more efficient
to hear a collateral attack on a prior conviction at trial rather
than wait for a later challenge on habeas corpus. (Allen, at
p. 435.) The court reasoned that Sumstine remains an efficient
procedural rule as applied to post-Tahl guilty pleas, where “the
record of the hearing in which the trial court accepted the
defendant’s plea should clearly demonstrate the defendant was
told of his rights and that he affirmatively waived them.” (Allen,
at p. 442.) This efficiency rationale does not apply to pre-Tahl
guilty pleas where the record is unlikely to clearly demonstrate
whether the defendant was aware of and voluntarily waived his
rights before pleading. (Allen, at p. 443.) The court accordingly
held “that motions to strike prior felony convictions on Boykin-
Tahl grounds are limited to post-Tahl guilty pleas.” (Allen, at
p. 443.)
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.)
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
10
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 (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.) The court explained that “if a Tahl-
like policy of requiring preplea advisements and waivers on the
record was in effect in the state court where the plea was taken,
we will allow a collateral attack on the ensuing conviction. If no
such policy operated at the time or place of the prior plea, in the
interests of finality of judgments recognized in Custis and judicial
efficiency, we will not allow collateral challenges to the
subsequent conviction.” (Id. at p. 471.)
II
In 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 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
11
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.) 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.)
In In re Ibarra (1983) 34 Cal. 3d 277, 285, abrogated on
other grounds as recognized in Mosby, supra, 33 Cal.4th at page
360, 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.) 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
12
to appeal. (See People v. Panizzon (1996) 13 Cal. 4th 68, 83 [“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 privilege against self-
incrimination. (See Or. Rev. Stat. § 135.385(2); see also Stelts v.
State (1985) 299 Or. 252 [701 P.2d 1047]; Lyons v. Pearce (1985)
298 Or. 554 [694 P.2d 969].) In Cruz v. Cupp (1986) 78 Or.App.
303, 305 [716 P.2d 770, 771] the petitioner “challenged [his]
conviction on the ground that the trial court did not orally advise
him of the consequences of the plea.” He argued that the “[trial]
court is required to address him personally on each matter
contained in ORS 135.385(2),” that is, that by pleading no contest
he waived the enumerated rights. (Cruz v. Cupp, at p. 771.) The
court disagreed, finding that “[t]he trial court’s duty to inform
petitioner of the matters contained in ORS 135.385(2) was
satisfied by the written plea petition, which contained the
information required by ORS 135.385(2). Trial counsel advised
the court that he had explained the plea petition to petitioner and
that petitioner had read and understood it before signing it.
Accordingly, the court ascertained that petitioner had the
information to which he was entitled under ORS 135.385(2).”
(Cruz v. Cupp, at p. 771, citing Lyons v. Pearce, at p. 974.)
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
13
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 (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.)
III
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, citing North Carolina v. Alford (1971) 400 U.S. 25, 31
and Brady v. United States (1970) 397 U.S. 742, 747, fn. 4.)
In Howard, supra, 1 Cal.4th at page 1178, our Supreme
Court abandoned the rule that “the absence of express
admonitions and waivers requires reversal regardless of
prejudice.” In adopting the federal test, Howard acknowledged
that the United States Supreme 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.’
(North Carolina v. Alford, supra, 400 U.S. at p. 31, citing Boykin,
supra, 395 U.S. at p. 242; see also Brady v. United States, supra,
397 U.S. at pp. 747-748.) ‘The new element added in Boykin’ was
14
not a requirement of explicit admonitions and waivers but rather
‘the requirement that the record must affirmatively disclose that
a defendant who pleaded guilty entered his plea understandingly
and voluntarily.’ (Brady v. United States, supra, 397 U.S. at pp.
747-748, fn. 4.)” (Howard, at p. 1177.)
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
document that he was executing his plea “knowingly and
voluntarily.” Defense counsel certified that “[d]efendant’s plea is
voluntarily and understandingly made.” And when defendant
appeared in court, the trial judge asked whether he had “a chance
to read through [the plea petition] carefully and discuss it with
[defense counsel] before [he] signed it.” Defendant responded
affirmatively. When asked whether he had “[a]ny questions
about what it says or what [he was] giving up by entering this
plea,” defendant said he did not.
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
15
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.,
Wilkins v. Erickson (9th Cir. 1974) 505 F.2d 761, 762-763 [where
judge receiving defendant’s guilty plea determined he was
pleading voluntarily and warned him of the possible sentencing
consequences, defendant could not prevail on federal habeas
corpus merely because the judge did not also specifically advise
that he was waiving his Boykin rights by entering the plea].)3 We
3
Several cases in California also have upheld a defendant’s
plea or admission to prior convictions during trial as
constitutionally valid under the totality of the circumstances
even in the absence of an express advisement and waiver. (See,
e.g., Mosby, supra, 33 Cal.4th at pp. 364-365 [defendant
voluntarily and intelligently admitted his prior conviction despite
being advised of and having waived only his right to jury trial];
Howard, supra, 1 Cal.4th at p. 1180 [defendant’s admission of
prior prison term was voluntary and intelligent despite absence
of express waiver of privilege against self-incrimination]; People
v. Sovereign (1993) 27 Cal. App. 4th 317, 321 [defendant’s plea was
voluntary and intelligent despite absence of explicit admonition
and waiver by defendant of his right to jury trial].) In his
petition for rehearing, defendant argued these cases are
inapposite. Although factually distinct, they support the
proposition that express advisements and waivers are not
necessarily required under the federal totality of the
circumstances test. (See People v. Lloyd (2015) 236 Cal. App. 4th
49, 58 [“[u]se of the totality of the circumstances test means
California has rejected the rule that ‘express admonitions and
16
find the language of the plea petition to be sufficiently clear to
inform defendant that in pleading no contest he would be waiving
his Boykin rights. Defendant does not claim that he did not or
could not read or understand the plea petition. In fact, he
confirmed to the trial judge that he had read the document
carefully and had discussed it with defense counsel before signing
it. Based on the plea petition and defendant’s colloquy with the
judge, a knowing and voluntary waiver is fairly implied.
We are not persuaded by defendant’s declaration, in which
he alleges defense counsel told him to sign the petition without
advising him of his Boykin rights. This allegation is inconsistent
both with defense counsel’s certification that defendant’s plea
was made “voluntarily and understandingly” and defendant’s
own statements during the colloquy in which he acknowledged
reading the plea petition carefully and discussing it with defense
counsel. Similar conclusory declarations have been rejected as a
basis for collateral attack of a prior conviction on Boykin-Tahl
grounds. (See, e.g., People v. Soto (1996) 46 Cal. App. 4th 1596,
1606.) And to the extent defendant alleges his attorney rendered
ineffective assistance, this claim cannot be a basis to collaterally
attack a prior conviction, as the trial court suggested below. (See
Garcia, supra, 14 Cal.4th at p. 956.)
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.) The trial court’s decision denying
defendant’s motion to dismiss was ultimately correct, and the
prior conviction was properly used to enhance his sentence.
waivers’ are the sine qua non of a knowing and intelligent
waiver].)
17
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
EPSTEIN, P. J.
We concur:
MANELLA, J.
COLLINS, J.
18