People v. Howard

MOSK, J., Concurring and Dissenting.

I concur in the judgment as to guilt and death eligibility. After review, I have found no error warranting reversal or vacation on either question.

I dissent, however, as to penalty. Pursuant to People v. Deere (1985) 41 Cal.3d 353, 360-368 [222 Cal.Rptr. 13, 710 P.2d 925], I would set aside the verdict of death as unreliable under the Eighth Amendment to the United States Constitution and article I, section 17, of the California Constitution because defendant failed, and indeed refused, to introduce available evidence in mitigation.¹ If an accused is to be permitted to follow such a course—and thereby practically compel the imposition and subsequent affirmance of the ultimate sanction—he may as well be allowed to irrevocably “plead death.” At least in such a situation, we avoid, both at trial and on appeal, the unseemly spectacle of an empty charade.

One issue presented in this case raises a question of general importance and calls for extended discussion—defendant’s admission of a sentence-enhancement allegation.

In Boykin v. Alabama (1969) 395 U.S. 238, 242-244 [23 L.Ed.2d 274, 279-280, 89 S.Ct. 1709], the United States Supreme stated the following principles applicable here. For a defendant’s guilty plea to be valid under the due process clause of the Fourteenth Amendment, it must be knowing and voluntary. Such a plea effectively waives several federal constitutional rights, including three basic trial rights—viz., the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. For such a waiver to be valid under the due process clause, it must itself be knowing and voluntary. A valid waiver of the three basic trial rights cannot be presumed from a silent record. It is therefore error for a trial court to accept a guilty plea from a defendant without an affirmative showing that the plea is knowing and voluntary. Such a showing, of course, assures that “the judge . . . leaves a record adequate for any review that may be later sought. . . (Id. at p. 244, fn. omitted [23 L.Ed.2d at p. 281].)

In In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449], we held that Boykin requires that, before accepting a guilty plea, the trial court must give the defendant express admonitions, and obtain from him express waivers, as to each of the three basic trial rights.

The Tahl holding was virtually unanimous. (1 Cal.3d at pp. 129-133; id. at p. 138 (conc. & dis. opn. of Peters, J.).) A single justice dissented, stating only his disagreement with the disposition—which did not depend on Boykin. (Id. at p. 138 (dis. statement by McComb, J.).)

Moreover, the Tahl holding was supported by close analysis. (1 Cal.3d at pp. 129-133.) We recognized that there were “at least two plausible interpretations of Boykin.” (Id. at p. 130.) One would merely ask for “statements and facts in the record from which a reasonable presumption could be drawn that a defendant has been apprised of and has voluntarily waived his rights, and has intelligently pleaded guilty.” (Id. at pp. 130-131.) The other would demand that each of the three basic trial rights “must be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his guilty plea.” (Id. at p. 132.) We adopted the latter. We reasoned: “While the Boykin text contains no such requirement in express terms, we believe it is not only a fair inference from the opinion . . . but it is the only realistic means of assuring that ‘the judge . . . leaves a record adequate for any review that may be later sought.’ ” (Ibid.)

At the conclusion of the relevant discussion in Tahl, we impliedly raised, but declined to resolve, the question whether harmless-error analysis was available if a trial court failed in its obligations and, if so, what such analysis would entail. (1 Cal.3d at p. 133.)

In In re Yurko (1974) 10 Cal.3d 857 [112 Cal.Rptr. 513, 519 P.2d 561], we held that Boykin and Tahl require that before accepting an admission of a sentence-enhancement allegation, the trial court must give the defendant express admonitions, and obtain from him express waivers, as to each of the three basic trial rights.

The Yurko holding was unanimous. (10 Cal.3d at pp. 861-863; id. at p. 867 (conc. & dis. opn. of Mosk, J.).) It was also supported by close analysis. (Id. at pp. 861-863.) We reasoned, in substance, that an admission was ftinctionally equivalent to a guilty plea. (Ibid.)

At the conclusion of the relevant discussion in Yurko, we impliedly raised, but declined to resolve, the question whether harmless-error analysis was available if a trial court failed in its obligations and, if so, what such analysis would entail. (10 Cal.3d at p. 863, fn. 6.)

In the case at bar, the majority undertake to reconsider Tahl and Yurko. I see no reason to do so. The wisdom of requiring express admonitions and waivers, as the majority themselves acknowledge, “remains beyond question.” (Maj. opn., ante, at p. 1179.) Moreover, the rules themselves are now long and well settled. “[T]he respect accorded prior decisions increases . . . with their antiquity, as the society adjusts itself to their existence, and the surrounding law becomes premised upon their validity.” (South Carolina v. Gathers (1989) 490 U.S. 805, 824 [104 L.Ed.2d 876, 892, 109 S.Ct. 2207] (dis. opn. of Scalia, J.).) Finally, the exercise of reexamination here turns out to be merely academic: the result is simply to declare again rules declared previously—albeit on supervisory rather than federal constitutional grounds.

Be that as it may, if Tahl and Yurko are indeed to be reconsidered, they should then be reaffirmed categorically and unconditionally.

To begin with, the holdings of Tahl and Yurko are supported by persuasive discussion. They are also clear and unambiguous, easy to understand and easy to apply.

Further, the United States Supreme Court has never explicitly rejected either Tahl or Yurko. Nor has it done so implicitly.

Contrary to the majority’s implication, neither Brady v. United States (1970) 397 U.S. 742 [25 L.Ed.2d 747, 90 S.Ct. 1463], nor North Carolina v. Alford (1970) 400 U.S. 25 [27 L.Ed.2d 162, 91 S.Ct. 160], purports even to consider the question whether Boykin requires express admonitions and waivers.

In a footnote, Brady states in dictum that “The requirement that a plea of guilty must be intelligent and voluntary to be valid has long been recognized. The new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.” (397 U.S. at pp. 747-748, fn. 4 [25 L.Ed.2d at p. 756], citation omitted.) Precisely what the required affirmative disclosure demands does not figure in Brady in any way. Therefore, the quoted statement does not bear on the issue of express admonitions and waivers.

For its part, Alford states that United States v. Jackson (1968) 390 U.S. 570 [20 L.Ed.2d 138, 88 S.Ct. 1209], “established no new test for determining the validity of guilty pleas. The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” (400 U.S. at p. 31 [27 L.Ed.2d at pp. 167-168].) Jackson dealt only with the question whether a guilty plea entered to avoid the death penalty was voluntary. Here too, the quoted statement does not bear on the issue of express admonitions and waivers.

I recognize, as I must, that Tahl and Yurko stand against a majority of lower federal court decisions. (See, e.g., United States v. Pricepaul (9th Cir. 1976) 540 F.2d 417, 424-425 [guilty plea].) But they certainly do not stand alone. (See, e.g., United States ex rel. Miller v. McGinnis (7th Cir. 1985) 774 F.2d 819, 823-824 [guilty plea].)

In any event, the dispositive issue is whether Tahl and Yurko were correctly decided. I believe they were: as stated above, the supporting discussion is persuasive.

Although I see no reason for us to reconsider Tahl and Yurko, I do believe that we should consider the general question of the availability and character of harmless-error analysis. This broad issue has never been definitively resolved.² It should be. Otherwise, the conflicts that have arisen in the case law³ are likely to persist and indeed grow more numerous and more severe.

To my mind, automatic reversal should not result on the erroneous omission of one or more express admonitions and/or waivers as to one or more of the three basic trial rights when a guilty plea or an admission is accepted.⁴

For example, in many cases a reviewing court may perhaps be able to declare the error harmless by finding that the trial court substantially complied with its obligations. The standard, suggested by the case law, is whether “the record . . . affirmatively disclose[s]” (Brady v. United States, supra, 397 U.S. at p. 747, fn. 4 [25 L.Ed.2d at p. 756]) that the guilty plea or admission in question “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 [27 L.Ed.2d at p. 168]). That is to say, does the record show on its face that the guilty plea or admission amounts to a knowing and voluntary decision to exercise or abandon the three basic trial rights? The relevant choice—trial or no trial—can be knowing and voluntary if and only if what is chosen thereby—trial rights or no trial rights—is itself understood and intended.⁵

In other cases, in which substantial compliance cannot be found, the reviewing court may simply vacate the judgment in pertinent part and remand the cause to the trial court for a limited evidentiary hearing. At such a hearing, the court would determine whether the defendant’s guilty plea or admission was in fact knowing and voluntary. If yes, it would reinstate the judgment. If no, it would strike the guilty plea or admission and allow the defendant to respond to the charge anew.

In accepting defendant’s admission of the sentence-enhancement allegation in this case, the trial court gave express admonitions, and obtained express waivers, concerning two of the three basic trial rights, i.e., jury trial and confrontation. It failed, however, to give such an admonition or to obtain such a waiver as to the third, i.e., the privilege against compulsory self-incrimination. The omission was, of course, error. But it was not fatal. The court substantially complied with its obligations. It explicitly told defendant that he had “the right to force the District Attorney to prove this and to bring in evidence and witnesses[.]” It thereby implicitly told him that he had the right to stand mute at trial if he so chose. Hence, the record shows on its face that defendant’s admission amounts to a knowing and voluntary decision to abandon the privilege.⁶ Accordingly, the error was harmless.⁷

In conclusion, although I would affirm the judgment in all other respects, I would reverse it insofar as it imposes the sentence of death.

1 Compare People v. Sanders (1990) 51 Cal.3d 471, 531-533 [273 Cal.Rptr. 537, 797 P.2d 561] (dis. opn. of Mosk, J.) (finding a verdict of death constitutionally unreliable when available mitigating evidence was not introduced); People v. Lang (1989) 49 Cal.3d 991, 1059-1062 [264 Cal.Rptr. 386, 782 P.2d 627] (conc. & dis. opn. of Mosk, J.) (same); and People v. Williams (1988) 44 Cal.3d 1127, 1158-1061 [245 Cal.Rptr. 635, 751 P.2d 901] (conc. & dis. opn. of Mosk, J.) (same).

2 See generally People v. Ray (1990) 220 Cal.App.3d 943, 945-950 [269 Cal.Rptr. 682], which holds automatically reversible the erroneous omission of one or more express admonitions and/or waivers as to one or more of the three basic trial rights when an admission is accepted. Ray discusses decisions including the following; People v. Guzman (1988) 45 Cal.3d 915, 968 [248 Cal.Rptr. 467, 755 P.2d 917], which holds that such an error on an admission is subject to harmless-error analysis under what is evidently the “reasonable probability” standard of People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]; People v. Wright (1987) 43 Cal.3d 487, 493-495 [233 Cal.Rptr. 69, 729 P.2d 260], which holds that such an error on a submission that is not tantamount to a guilty plea is subject to harmless-error analysis under the Watson “reasonable probability” standard; In re Ibarra (1983) 34 Cal.3d 277, 283, footnote 1 [193 Cal.Rptr. 538, 666 P.2d 980], which states in dictum that such an error on a guilty plea is automatically reversible; In re Ronald E. (1977) 19 Cal.3d 315, 320-321 [137 Cal.Rptr. 781, 562 P.2d 684], which makes the same statement in dictum; People v. Johnson (1989) 212 Cal.App.3d 1179, 1182 [261 Cal.Rptr. 159], which holds that such an error on a guilty plea or an admission is automatically reversible; People v. Shippey (1985) 168 Cal.App.3d 879, 889 [214 Cal.Rptr. 553], which holds that such an error on an admission is subject to harmless-error analysis under the Watson “reasonable probability” standard; and People v. Prado (1982) 130 Cal.App.3d 669, 675 [182 Cal.Rptr. 129], which makes the same holding.

3 See footnote 2, ante.

4 I recognize that Boykin can indeed be construed to require automatic reversal regardless of the circumstances. (E.g., Boykin v. Alabama, supra, 395 U.S. at pp. 244-249 [23 L.Ed.2d at pp. 280-283] (dis. opn. of Harlan, J.); see also fn. 2, ante.) But I do not so read the decision.

5 The majority are apparently in accord. True, their opinion contains language that may perhaps be read to suggest that the relevant choice can be deemed knowing and voluntary even if what is chosen thereby is not itself understood and intended. Such a rule, however, would be unsound. One cannot knowingly and voluntarily choose to face or forgo trial if he does not understand what trial means; and he cannot understand what trial means if he is not aware of the three basic trial rights.

6 The majority opinion contains language that may perhaps be read to suggest that if a defendant knows he has the right not to plead guilty or not to make an admission but rather to proceed to trial, he must necessarily know he has the right not to incriminate himself at any trial that might ensue. Such an inference, however, would be supported by neither fact nor logic.

7 I note in passing that the prosecutor’s conduct at several points in the course of trial is troubling. For example, his peremptory challenges against all the Black prospective jurors raises a suspicion of invidious racial discrimination—against defendant as well as the prospective jurors themselves. Proof, it seems, is lacking: defendant’s motion under People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748], was inadequate. Also, the prosecutor’s summation at the penalty phase bad an apparent racist subtext. But because I have found prejudicial Deere error, I need not, and do not, determine whether the argument amounted to reversible misconduct.