People v. Harris CA2/8

Filed 3/9/23 P. v. Harris CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B309051
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA139667)
v.
BYRON SAMUEL HARRIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Roger Ito, Judge. Reversed.
Lori Nakaoka, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney
General, Michael C. Keller and Wyatt E. Bloomfield, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________________
INTRODUCTION
Byron Samuel Harris was charged with five counts of
robbery. Harris pled not guilty and not guilty by reason of
insanity. The trial court held a bifurcated bench trial as to guilt
and sanity. The guilt phase was submitted solely on the basis of
the preliminary hearing transcripts. Defense counsel made no
argument at the guilt phase of trial, and the trial court found
Harris guilty on all five counts. Subsequently, at the sanity
phase, the trial court found Harris sane at the time of the
robberies.
On appeal, Harris argues that the trial court committed
reversible error by failing to obtain his valid consent to submit
the guilt phase of the trial on the preliminary hearing
transcripts. We conclude that the submission on the preliminary
hearing transcripts was a slow plea. We also conclude that the
record does not affirmatively show that, under the totality of the
circumstances, Harris intelligently waived his right to confront
and cross-examine witnesses or his right against self-
incrimination when he consented to trial on the preliminary
hearing transcripts. Accordingly, we reverse.1
1
Because we reverse on this basis, we need not reach
Harris’s claims that (1) reversal is also warranted because he was
incompetent at the time of the preliminary hearing on counts 1
through 3; (2) his jury trial waiver was invalid; (3) the evidence is
insufficient to sustain his conviction on count 3; and (4) remand
for resentencing is required under the recent amendments to the
Penal Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
Harris was charged by information with five counts of
robbery (Pen. Code, § 211) based upon four separate incidents
that took place in July 2015 in Long Beach, Lakewood, and
Norwalk, California. Counts 1 to 3 alleged three separate
robberies. Counts 4 and 5 were based on a single alleged robbery
involving two victims. Harris was arrested on July 22, 2015.
The preliminary hearing for counts 1 to 3, concerning the
Lakewood and Norwalk incidents, took place on August 5, 2015.
Defense counsel did not put on evidence but cross-examined
witnesses. The defense also made a motion that Harris be held to
answer on the lesser offense of grand theft due to insufficient
evidence, which the judge rejected. An information on these
counts was filed on August 20, 2015. Harris was arraigned that
same day.
The preliminary hearing for the Long Beach incidents,
concerning counts 4 and 5, took place on February 28, 2017. At
the preliminary hearing on these counts, defense counsel did not
put on evidence but cross-examined witnesses. Counsel moved to
dismiss based upon insufficiency of the evidence, without any
argument, and the court rejected the motion.
On September 11, 2017, the Long Beach case was
consolidated with the Norwalk and Lakewood cases. Harris
subsequently pled not guilty and not guilty by reason of insanity
to all five counts on an amended, consolidated information.
On June 26, 2019, Harris waived his right to a jury trial.
During this hearing, Harris told the court he did not want to
waste the court’s time because he was “pretty much guilty” of one
of the charges and had told the officers who arrested him that.
The trial court informed Harris that he had the right to plead
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guilty, but defense counsel interjected, stating that he wanted to
get Harris the “optimal outcome” and thought that during the
“guilt phase [this evidence] may not lead to an acquittal, but [it]
will lead to a better outcome . . . .” Counsel went on, “I don’t see
any upside for [sic] pleading at this point because we’re not trying
to play the court as far as guilt or innocence.”
Two days later, on June 28, 2019, Harris also agreed to
submit the guilt phase of the trial to the court solely on the
preliminary hearing transcripts. The trial court’s conversation
with Harris to obtain his consent went as follows:
“Mr. Harris, a couple things before we get started. . . . I’ve
had this discussion with the attorney and with the deputy D.A.,
and I want to make sure you’re aware of this and this is the way
we are planning on proceeding and it’s okay with you. [¶] And
that is, [defense counsel] has indicated that he does not desire to
have those witnesses physically come in. However, they already
testified at preliminary hearings . . . . And what [defense
counsel] has indicated, at least for this portion of the trial, which
is for me to determine whether or not you’re guilty of one or more
of those crimes, I would review the transcript and then make my
determination as to whether or not you’re guilty of one or more of
those crimes just by review of the transcript.” The judge then
noted that defense counsel had cross-examined the witnesses at
the preliminary hearings and had been “pretty thorough” in that
examination as to the “nature” of the crimes.
The trial judge then asked Harris if he was in agreement
that the court could review the transcripts and “make the
determination as to whether or not you’re guilty beyond a
reasonable doubt as to one or more of those counts, count 1
through 5.” Harris responded that he thought it was only one
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count. The trial judge replied that there were five counts, and
Harris replied that he thought “Rio Hondo proved some out.” The
trial judge then told Harris that he would look into the issue.
The trial court next explained to Harris that if the court
found Harris guilty on one or more of the offenses, the trial would
proceed to a second, sanity phase of the trial. After a discussion
of when the second phase of the trial could be completed, Harris
told the court that he was in agreement with submitting on the
preliminary hearing transcripts for purposes of determining
guilt.
After obtaining Harris’s consent to submission of the guilt
phase on the preliminary hearing transcripts, the trial court
informed Harris that “[i]n exchange for this the prosecution . . .
has agreed to strike . . . [a] prior strike offense. They’re striking
it. In other words, you are not going to be sentenced on that prior
strike offense.” It went on to say that “at least in terms of
whether or not it could double your sentence, they’re agreeing—
because you’re agreeing to this, they’re agreeing to go ahead and
strike that.” It later elaborated, “it will prevent any of these
counts from being doubled.”
The trial court then adjourned for lunch. Afterwards, it
announced that it had read the preliminary hearing transcripts
and was giving both sides “a chance to be heard as to the
sufficiency of the evidence.” Defense counsel replied without any
such argument, simply stating “[s]ubmitted, Your Honor.” The
People also submitted without argument. The trial court then
held that “[b]ased on my review of the preliminary hearing
transcripts, I do in fact find beyond a reasonable doubt that
Mr. Harris is guilty [of counts 1 through 5].”
5
The sanity phase of the bench trial took place
approximately four months later, in November 2020. The court
found that Harris was sane at the time of the July 2015
robberies, so it rejected his claim of not guilty by reason of
insanity.
This appeal followed.
DISCUSSION
Harris argues that the trial court did not obtain his valid
consent to submit the question of guilt on the preliminary
hearing transcripts, and thus reversal on all five counts is
required. He asserts that his consent was a “slow plea,”
tantamount to a guilty plea, made without any awareness of the
fundamental rights he was relinquishing and the consequences of
his decision.
The People do not claim that Harris was given the proper
advisal when he agreed to submit on the preliminary hearing
transcripts. Instead, the People argue that the submission on the
preliminary transcripts was not tantamount to a guilty plea, thus
not a slow plea, so any error in failing to properly advise Harris
was subject to harmless error review and was harmless.
I. Background on Slow Pleas
Our Supreme Court recently explained that “[w]e have
defined a slow plea as an ‘ “ ‘agreed-upon disposition . . . which
does not require the defendant to admit guilt but results in a
finding of guilt . . . usually, for a promised punishment.’ ” ’
[Citation.] A recognizable example of a slow plea ‘is a bargained-
for submission on the transcript of a preliminary hearing in
which the only evidence is the victim’s credible testimony, and
the defendant does not testify and counsel presents no evidence
or argument on defendant’s behalf.’ [Citation.] This type of
6
submission is tantamount to a guilty plea because the
defendant’s guilt is apparent on the evidence presented at the
preliminary hearing and conviction is a foregone conclusion as no
defense is mounted. [Citation.] A submission occurs when the
defendant gives up his or her right to a jury trial, the right to
present additional evidence as part of a defense and agrees the
court can decide the case on the basis of the transcript of prior
proceedings.” (People v. Morelos (2022) 13 Cal.5th 722, 744–745
(Morelos).)
“Deciding whether a submission is a slow plea is often
difficult, and courts generally review such pleas based on
defendant’s willingness to contest guilt during the court trial.”
(People v. Sanchez (1995) 12 Cal.4th 1, 28 (Sanchez), disapproved
of on other grounds by People v. Doolin (2009) 45 Cal.4th 390,
421, fn. 22.) “An appellate court, in determining whether a
submission is a slow plea, must assess the circumstances of the
entire proceeding. . . . A submission that prospectively appeared
to be a slow plea may turn out to be part of a full-blown trial if
counsel contested the sufficiency of evidence for those counts or
presented another potentially meritorious legal argument against
conviction. Conversely, a submission that did not appear to be a
slow plea because the defendant reserved the right to testify and
call witnesses or to argue the sufficiency of the evidence [citation]
may turn out to be a slow plea if the defense presented no
evidence or argument contesting guilt. [¶] If it appears on the
whole that the defendant advanced a substantial defense, the
submission cannot be considered to be tantamount to a plea of
guilty. Sometimes, a defendant’s best defense is weak. He may
make a tactical decision to concede guilt as to one or more of
several counts as part of an overall defense strategy. A
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submission under these circumstances is not a slow plea . . . .”
(People v. Wright (1987) 43 Cal.3d 487, 496–497 (Wright),
abrogated on another ground as recognized by People v. Mosby
(2004) 33 Cal.4th 353 (Mosby).)
II. Submission of the Guilt Phase of the Trial on the
Preliminary Hearing Transcripts Was a Slow Plea
Under the Circumstances of the Entire Proceeding
We conclude that Harris’s consent to submission of the
guilt phase of the trial on the preliminary hearing transcripts
was a slow plea. The submission was a bargained-for agreement
between the parties. As the trial court stated, in “exchange” for
Harris agreeing to submit on the transcripts, the People agreed
to strike a prior offense, which impacted the potential sentence.
The defense submitted the guilt phase of the trial entirely on the
preliminary hearing transcripts, and the only evidence in the
transcripts was the victims’ testimony. (Morelos, supra,
13 Cal.5th at p. 744.) Counsel did not make any argument at the
guilt phase of trial.
The People assert that because defense counsel made
arguments as to the sufficiency of the evidence at the preliminary
hearings, the submission is not a slow plea. We disagree.
We consider the totality of the circumstances, and look to
whether the defense contested guilt “during the court trial.”
(Sanchez, supra, 12 Cal.4th at p. 28.) Thus, a plea that did not
initially appear to be a slow plea may become one if, as is the case
here, “the defense presented no evidence or argument contesting
guilt.” (Wright, supra, 43 Cal.3d at p. 497.) In cases where our
Supreme Court has found a submission on the transcripts was
not a slow plea, the defendant asserted at least some defense at
trial. (Id. at pp. 498–499 [trial court heard from five defense
8
witnesses and defense contested guilt for some of the crimes];
Sanchez, at p. 28 [defense counsel moved for judgment of
acquittal and to strike prosecution’s evidence, and made
arguments against guilt].)
People v. Dakin (1988) 200 Cal.App.3d 1026, cited by the
People, is inapposite. Dakin concerned materially different facts.
The court found relevant that the submission was not made in
exchange for any agreement with the prosecution. (Id. at
p. 1032.) It also found relevant that defense counsel presented
“argument to the court that the facts in the transcript d[id] not
support a conviction . . . .” (Id. at pp. 1032–1033.) The court
disagreed with the defendant’s assertion that because the same
argument had been made and rejected twice before in
preliminary hearings, it was a forgone conclusion at trial. (Id. at
p. 1032.) Recognizing that “if guilt is contested after submission
on the transcript, the submission does not amount to a slow plea
of guilty,” the court in Dakin held that the submission was not a
slow plea. (Id. at pp. 1031, 1033.)
We also find unpersuasive the People’s argument that
because Harris pled not guilty by reason of insanity and made
arguments and put on evidence at the sanity phase of the trial,
the submission on the transcripts at the guilt phase was not a
slow plea. When a defendant pleads not guilty and also pleads
not guilty by reason of insanity, as Harris did here, the court
holds a bifurcated trial as to the issues of guilt and of sanity.
(People v. Hernandez (2000) 22 Cal.4th 512, 520.) The defendant
is first tried as to guilt. Then, if the trier of fact finds the
defendant guilty, it must determine whether the defendant was
sane or insane at the time he or she committed the offenses. (Id.
at p. 520; Pen. Code, § 1026, subd. (a).) The issue in the sanity
9
phase is not whether the defendant is guilty of committing the
charged acts, but whether or not the defendant should be
punished for his or her actions because they were committed
knowingly. (Hernandez, at p. 521.) Under California law, a
defendant is not guilty by reason of insanity if at the time the
offense was committed, the defendant was incapable of knowing
or understanding the nature and quality of his act and of
distinguishing right from wrong. (Pen. Code, § 25, subd. (b);
Hernandez, at p. 520.) Thus, the defense’s evidence and
argument at the sanity phase of the bifurcated trial does not
impact the outcome of the guilt phase, which is determined first.
Here, the trial court found Harris guilty solely on the pretrial
transcript and without any evidence or argument from defense
counsel at trial, and then four months later found him sane.
In sum, based on the totality of the circumstances, we find
that the submission of Harris’s guilt on the basis of the pretrial
transcript was a slow plea.
III. The Record Does Not Establish That Harris
Voluntarily and Intelligently Waived His Rights to
Confront Witnesses and Against Self-incrimination
“ ‘It has long been recognized that under the federal
Constitution a defendant’s plea of guilty to a criminal charge is
only valid if it is voluntarily and knowingly made.’ ” (Wright,
supra, 43 Cal.3d at p. 491.) A slow plea is tantamount to a plea
of guilty. (Id. at p. 492.) Therefore, the trial court must inform
the defendant of his or her right to a jury trial, to confront and
cross-examine witnesses, and against self-incrimination, and the
defendant must knowingly waive these rights. (Bunnell v.
Superior Court (1975) 13 Cal.3d 592, 605 (Bunnell); Wright, at
pp. 496–497.) This is also known as an advisal of constitutional
10
2
rights pursuant to Boykin–Tahl to ensure the decision is
voluntary and intelligent. (Wright, at pp. 496–497; Sanchez,
supra, 12 Cal.4th at pp. 28–29.)
If a trial court fails to instruct the defendant on the right to
a jury trial, the error is per se reversible. (People v Holmes (1960)
54 Cal.2d 442; People v. Sivongxxay (2017) 3 Cal.5th 151, 166.)
In contrast, a failure to instruct on the right to confront and
cross-examine witnesses, and against self-incrimination, does not
compel automatic reversal when the record establishes that the
submission on the prior evidence was voluntary and intelligent
under the totality of the circumstances. (Mosby, supra,
33 Cal.4th at p. 360; People v. Calvert (1993) 18 Cal.App.4th
1820, 1837, citing People v. Howard (1992) 1 Cal.4th 1132, 1175,
abrogated on other grounds in People v. Rhoades (2019) 8 Cal.5th
393; see also Cal. Criminal Law: Procedure and Practice
(Cont.Ed.Bar 2022 ed.) § 28.21.)
The People do not claim that the trial court properly
advised Harris of his right to confront and cross-examine
witnesses and against self-incrimination. Accordingly, the
question before us is whether the record establishes that Harris
voluntarily and knowingly waived these rights under the totality
of the circumstances. (Mosby, supra, 33 Cal.4th at p. 360.) We
find no such evidence. There is no affirmative indication in the
record that Harris knew of his right to confront and cross-
2
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969)
1 Cal.3d 122.
11
examine witnesses, or against self-incrimination.3 There is thus
no evidence that his waiver of these rights when he consented to
submit on the preliminary hearing transcripts was voluntary and
intelligent.
In addition, when a defendant submits his case on the
transcript, the record must also reflect that the defendant
“understands the nature of the charges.” (Bunnell, supra,
13 Cal.3d at p. 605.) The defendant must also be advised of the
“direct consequences of conviction.” (Ibid.) The record does not
establish that Harris understood the nature of the charges.
Harris thought he faced only one charge of robbery, not five.
He believed that “Rio Hondo proved some out,” and told the trial
court that. The trial court told Harris it would look into this
issue. But there is no indication that the trial court ever clarified
this issue for Harris, as it told him it would. The record also does
not establish that Harris was directly advised of the
consequences of conviction before he consented to submit on the
transcript. Moreover, the record suggests that Harris was
surprised at the sentencing stage by the length of the sentence,
as shown by him asking, “I wonder why I got so much time?”
For these reasons, the record does not establish that
Harris’s waiver of his rights by submitting on the preliminary
hearing transcripts was intelligent and voluntary, so we must
reverse.
3
We do not reach the question of whether Harris’s jury trial
waiver was valid because we hold that Harris’s waiver of his
rights to confront and cross-examine witnesses and against self-
incrimination was invalid.
12
DISPOSITION
The judgment is reversed on all counts.
VIRAMONTES, J.
We concur:
STRATTON, P. J.
WILEY, J.
13