gno.law

People v. Lupien CA4/1

California Court of Appeal · D064207 · 2014-05-28 · Unpublished

Proceeding
appeal from a judgment
Trial court
Superior Court of San Diego County · No. SCD242206
Trial judge
Peter L. Gallagher
Outcome
affirmed — Affirmed.
Area
criminal
Panel
Patricia D. Benke (author), Alex C. McDonald, Cynthia Aaron

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:40Z · confidence high

The trial court denied defendant's motion to strike his 1986 prior conviction, finding that the minute order from that case sufficiently established compliance with Boykin/Tahl admonishments. The Court of Appeal affirmed the judgment, holding that the minute order was sufficient to prove the waiver of constitutional rights.

Ruling reviewedStandardThe courtThe model
Denial of motion to strike 1986 prior conviction for lack of Boykin/Tahl compliance
“In light of People v. Pride, supra, at pages 255-256, the minute order in this record was sufficient to establish compliance with Boykin/Tahl.”
unclearcorrectagree with court
The appellate court correctly applied the principle from People v. Pride that while a reporter's transcript is preferable, it is not strictly required to establish Boykin/Tahl compliance. Since the minute order in this case expressly listed the specific rights waived (self-incrimination, confrontation, jury trial), it provided a sufficient basis for the trial court's finding, distinguishing it from cases where the record was more ambiguous.

Authorities

  • relied: People v. Wende (1979) 25 Cal.3d 436 — Establishes the standard for appointed appellate counsel to review the record for error when no specific arguments are presented.
  • relied: People v. Pride (1992) 3 Cal.4th 195 — Holds that a trial court may infer compliance with Boykin/Tahl requirements from evidence other than a full reporter's transcript, such as testimony regarding a judge's habit and custom.
  • relied: Boykin v. Alabama (1969) 395 U.S. 238 — Requires that a guilty plea be voluntary and intelligent, necessitating specific advisements of constitutional rights.
  • relied: In re Tahl (1969) 1 Cal.3d 122 — California authority requiring specific advisements of rights before accepting a guilty plea.

The appellate opinion: sound — The opinion is sound because it correctly distinguishes the present case from People v. Pride by noting that the minute order here expressly referenced the specific rights, making the inference of compliance stronger than in the cited precedent. It properly applies the Wende standard to find no other issues.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

A jury convicted Lupien of robbery with prior-conviction findings; before trial the court denied his motion to strike a 1986 prior on Boykin/Tahl grounds after finding the minute order showed he was advised of and waived his rights, and it sentenced him to 13 years after striking the section 667 strike prior. On a Wende appeal with a supplemental pro per brief, the Court of Appeal held the minute order sufficed under People v. Pride, found no arguable issues, and affirmed.

Ruling reviewedStandardThe courtThe model
Denial of pretrial motion to strike the 1986 prior conviction on the ground the plea lacked proper Boykin/Tahl advisements and waivers, based solely on the minute order
“order in this record was sufficient to establish compliance with Boykin/Tahl.”
unclearcorrectagree with court
A reporter's transcript is not required to prove Boykin/Tahl compliance; Pride permitted inference of compliance from even weaker evidence (habit and custom testimony where the minute order was incomplete). Here the minute order expressly recited all three advisements and the waivers, which is a sufficient record. The court did not articulate the governing totality-of-the-circumstances test from People v. Howard, but on this record the omission does not affect the result because the record affirmatively shows advisement and waiver.
Judgment of conviction and 13-year sentence, reviewed for arguable issues under People v. Wende after appointed counsel filed a no-issue brief and defendant filed a supplemental brief
“disclosed no reasonably arguable appellate issues.”
unclearcorrectagree with court
The court followed the Wende procedure, permitted and addressed the defendant's personal contention as required, and found no arguable issue. Nothing in the recited facts (upper term, consecutive five-year section 667(a) term, three one-year prison priors, dismissed strike) suggests an unlawful sentence. The opinion does not state the disposition of the habeas petition it ordered considered with the appeal, but that does not undermine the affirmance.

Authorities

  • relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for error.
  • relied: People v. Pride (1992) 3 Cal.4th 195 — Compliance with Boykin/Tahl may be established without a reporter's transcript; a trial court may infer advisement and waiver from circumstantial evidence such as the judge's habit and custom.
  • relied: Boykin v. Alabama (1969) 395 U.S. 238 — A guilty plea is invalid unless the record shows the defendant knowingly waived the privilege against self-incrimination, the right to jury trial, and the right to confront accusers.
  • relied: In re Tahl (1969) 1 Cal.3d 122 — The Boykin rights must be specifically and expressly enumerated on the record and expressly waived by the defendant.
  • missed: People v. Howard (1992) 1 Cal.4th 1132 — Boykin/Tahl advisement errors are not reversible per se; the question is whether the record affirmatively shows the plea was voluntary and intelligent under the totality of the circumstances.

The appellate opinion: sound with gaps — The court correctly answered the defendant's only contention by relying on Pride, which permits proof of Boykin/Tahl compliance without a reporter's transcript, and the minute order here expressly recited all three advisements and waivers. It did not articulate the Howard totality-of-the-circumstances standard that governs such challenges and did not state how it disposed of the habeas petition it ordered considered with the appeal, though neither gap affects the correctness of the affirmance.

How this analysis was made · dispute it

Opinion

Filed 5/28/14 P. v. Lupien CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D064207

Plaintiff and Respondent, v. (Super. Ct. No. SCD242206)

PAUL RUSSELL LUPIEN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Peter L.

Gallagher, Judge. Affirmed.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

On April 5, 2013, a jury found defendant and appellant Paul Russell Lupien guilty of one count of robbery in violation of Penal Code section 211.1 The jury also found that 1 All further statutory references are to the Penal Code. Lupien had committed the robbery while on probation within the meaning of section 1203, subdivision (k), had been convicted of a violent or serious felony within the meaning of section 667, subdivisions (b) through (i), and had been convicted of a serious felony within the meaning of section 667.5, subdivision (b).

Prior to trial, Lupien moved to strike his earlier 1986 conviction on the grounds his plea in that case was invalid because he had neither been properly advised nor waived his Boykin/Tahl2 rights. The trial court, after reviewing the minute order entered at the time of Lupien's plea in the 1986 case, found that Lupien had been properly advised and had waived his right against self-incrimination, to confront witnesses, and to a jury trial.

Accordingly, the trial court denied Lupien's motion.

At sentencing, the trial court dismissed the section 667 "strike" prior under section 1385 and dismissed one of the prior prison term enhancements. Lupien was sentenced to the upper term of five years on the robbery conviction (§ 213, subd. (a)(2)), a consecutive five-year term for the prior serious felony (§ 667, subd. (a)), and three consecutive one- year terms on the three prior prison term enhancements (§ 667.5, subd. (b)). Against his total 13-year prison term, Lupien was given 256 days of custody credits and 39 days of conduct credits. He was ordered to pay a $3,000 restitution fine, and a parole revocation fine in that amount was stayed.

Lupien filed a timely notice of appeal.

2 Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122. 2 DISCUSSION Appointed appellate counsel has filed a brief summarizing the proceedings below.

Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Counsel suggests, as an issue for our review, whether the trial court erred in denying Lupien's motion to strike his prior conviction.

We granted Lupien permission to file a brief on his own behalf, and he did so.

Lupien also filed a petition for a writ of habeas corpus, which we have ordered considered with his appeal. In his brief, Lupien argues the trial court erred in denying his motion to strike his prior conviction. In particular, he argues the trial court should not have relied solely on the minute order, which shows that the trial court in the prior case advised Lupien of his right against self-incrimination, his right to confront witnesses, and his right to a jury trial.

Although, as the trial court itself indicated, a reporter's transcript of Boykin-Tahl admonishments and their waiver is a preferable means of establishing compliance, it is not required. In People v. Pride (1992) 3 Cal.4th 195, 255-256, a case where no reporter's transcript was available and, unlike the minute order here, the minute order did not expressly refer to all three Boykin-Tahl admonishments, the court nonetheless held that a trial court could infer compliance from testimony as to the deceased trial judge's "habit and custom." Here, the minute order expressly refers to Lupien's right against self- incrimination, his right to confront witnesses, and his right to a jury trial and indicates 3 that he waived them. In light of People v. Pride, supra, at pages 255-256, the minute order in this record was sufficient to establish compliance with Boykin/Tahl.

Our review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 has disclosed no reasonably arguable appellate issues.

We find Lupien was adequately represented both at trial and on appeal.

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

McDONALD, J.

AARON, J.

Cites, in this corpus