People v. Balderrama
THE PEOPLE, and v. ROGELIO BALDERRAMA, and
- Area
- criminal
- Panel
- Daniel J. Kremer (author)
Analysis
The trial court accepted the defendant's admission of a prior serious felony conviction after advising him of his right to a jury trial but failing to explicitly advise him of his rights against self-incrimination and confrontation. The Court of Appeal reversed and remanded for a limited hearing on the prior conviction, finding the advisement insufficient under In re Tahl and declining to follow People v. Lizarraga.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Acceptance of defendant's admission of prior serious felony conviction“The court’s statements here, telling Balderrama only that he had a right to have the prior proved beyond a reasonable doubt to a jury or to the court as alternatives to admitting the prior, failed to inform Balderrama that he had a right not to incriminate himself and to confront the evidence against him.” | de novo | error | agree with court The appellate court correctly applied the strict standard from In re Tahl, which requires the record to contain direct evidence that the accused was aware of the specific constitutional rights being waived. The trial court's advisement, while mentioning the right to a jury trial, did not expressly communicate the rights against self-incrimination or confrontation. By declining to follow People v. Lizarraga, which allowed these rights to be inferred from the right to a trial, the appellate court adhered to the requirement that waivers must be express and specific, not inferred. The reliance on People v. Johnson (1989) to distinguish Lizarraga is supported by the cited authorities and the logical necessity of explicit advisement for constitutional waivers. |
Imposition of consecutive sentence“He also contends the court relied on improper factors to justify imposing a consecutive sentence. We agree the trial court failed to give Balderrama a sufficient advisement of his constitutional rights before accepting his admission and therefore reverse and remand on that issue. Otherwise, we affirm.” | abuse of discretion | correct | unsure The opinion states that the defendant contended the court relied on improper factors for the consecutive sentence, but the court affirms the judgment in all other respects. Although the specific reasoning for affirming the sentencing is not detailed in the excerpt, the disposition indicates the appellate court found no error in the sentencing phase, implying the trial court's exercise of discretion was within legal bounds. |
Authorities
- relied: In re Tahl (1969) 1 Cal.3d 122 — The record must contain on its face direct evidence that the accused was aware of his right to confrontation, to a jury trial, and against self-incrimination.
- relied: In re Ronald E. (1977) 19 Cal.3d 315 — Admonitions regarding constitutional rights are constitutionally compelled.
- relied: In re Yurko (1974) 10 Cal.3d 857 — Admonitions must be express and specific.
- relied: People v. Smith (1986) 187 Cal.App.3d 666 — The proper remedy for failure to properly advise of rights before admitting a prior conviction is to remand for a limited hearing on the truth of the prior.
- misapplied: People v. Lizarraga (1974) 43 Cal.App.3d 815 — The court declined to follow Lizarraga's holding that advising a defendant of the right to a trial and the prosecution's burden of proof is sufficient to advise of the rights against self-incrimination and confrontation, finding that such advice relies on impermissible inference.
- relied: People v. Johnson (1989) 212 Cal.App.3d 1179 — Lizarraga should not be followed because it does not effectively convey the right against self-incrimination and relies on inference, which is prohibited.
- relied: People v. English (1981) 116 Cal.App.3d 361 — An adequate advisement of the right against self-incrimination includes telling the defendant he is giving up the right to testify or not testify as he chooses.
The appellate opinion: sound — The opinion is sound because it correctly applies the strict standard from In re Tahl and In re Yurko, which require express and specific advisement of constitutional rights. It effectively distinguishes and declines to follow People v. Lizarraga based on the persuasive reasoning in People v. Johnson (1989), which highlights the impermissible reliance on inference to establish a waiver of the privilege against self-incrimination.
The trial court accepted Rogelio Balderrama's admission of a prior serious felony conviction after advising him only of his right to have the prior proved to a jury or the court beyond a reasonable doubt, and after a jury convicted him of residential burglary imposed a consecutive sentence. The Court of Appeal held the advisement omitted the privilege against self-incrimination and the right of confrontation required by In re Tahl, declined to follow People v. Lizarraga, reversed the prior-conviction finding and remanded for a limited hearing on the truth of the prior, and otherwise affirmed (the consecutive-sentence issue being resolved in an unpublished portion).
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Acceptance of defendant's admission of a prior serious felony conviction (§§ 667(a), 1192.7(c)(18)) without express advisement of the privilege against self-incrimination and the right of confrontation“In this advisement, the court specifically and expressly told Balderrama he had a right to a jury trial, but did not specifically and expressly tell him. he had a right to confrontation and a right not to incriminate himself.” | de novo | error (procedure) | agree with court Under Tahl and Yurko the record must show on its face express and specific advisement of all three Boykin rights before an admission of a prior is accepted; the quoted colloquy mentions only the jury-trial right and burden of proof. The court correctly rejected the People's Lizarraga analogy, following the 1989 Johnson decision's reasoning that deriving self-incrimination and confrontation rights from an advisement about trial and burden of proof requires the very inference Tahl forbids. The remedy of remand for a limited hearing on the truth of the prior follows People v. Smith and was consistent with the per se reversal rule then governing Tahl error (People v. Wright). The reasoning and authorities support the result as the law stood in 1990. |
Imposition of a consecutive sentence allegedly based on improper factors“He also contends the court relied on improper factors to justify imposing a consecutive sentence.” | unclear | correct | unsure The judgment was affirmed in all other respects, so the appellate court evidently rejected this contention, but the discussion appears in Part II, which is unpublished and omitted from the opinion. Without the reasoning or the sentencing record, no independent assessment is possible. |
Authorities
- relied: In re Tahl (1969) 1 Cal.3d 122 — The record must contain on its face direct evidence that the accused was aware, or made aware, of the rights to confrontation, jury trial, and against self-incrimination before a plea or admission is accepted.
- relied: In re Yurko (1974) 10 Cal.3d 857 — Boykin/Tahl admonitions apply to admissions of prior convictions and must be express and specific.
- relied: In re Ronald E. (1977) 19 Cal.3d 315 — The Tahl admonitions are constitutionally compelled.
- relied: People v. Smith (1986) 187 Cal.App.3d 666 — When a defendant is not properly advised before admitting a prior, the remedy is remand for a limited hearing on the truth of the prior.
- relied: People v. Johnson (1989) 212 Cal.App.3d 1179 — Lizarraga should not be followed; advising of the right to trial with the prosecution bearing the burden of proof does not effectively convey the privilege against self-incrimination without resort to impermissible inference.
- relied: People v. Johnson (1978) 77 Cal.App.3d 866 — Telling a defendant of the right to trial and the prosecution's burden does not inform him of the privilege against self-incrimination; inference may not be used to find advisement of rights.
- relied: People v. English (1981) 116 Cal.App.3d 361 — An advisement that the defendant could 'testify or not testify, as you choose' adequately conveys the privilege against self-incrimination in lay terms.
- relied: People v. Wright (1987) 43 Cal.3d 487 — Cited for its disapproval of People v. Casarez on other grounds; also the source of the then-governing rule that Tahl advisement error requires reversal.
The appellate opinion: sound — The published portion directly answers the People's sole argument (the Lizarraga analogy) by surveying the subsequent appellate treatment of Lizarraga and adopting the 1989 Johnson court's reasoning that Tahl prohibits inferring advisement of rights, and it applies the established Smith remedy. The analysis is thorough and consistent with the Supreme Court authority then in force; the only gap is that the consecutive-sentence issue is resolved in an omitted unpublished part, which cannot be evaluated.
How this analysis was made · dispute it
record incompleteOpinion — Kremer
Opinion
KREMER, P. J.Rogelio Balderrama was convicted by a jury of burglarizing a residence (Pen. Code,2 § 459). He admitted he had a prior serious felony conviction (§§ 667, subd. (a), 1192.7, subd. (c)(l)(18)). On appeal, Balderrama contends the court failed to adequately advise him of his constitutional privilege against self-incrimination and his right of confrontation *284before accepting his admission of the prior serious felony conviction. He also contends the court relied on improper factors to justify imposing a consecutive sentence. We agree the trial court failed to give Balderrama a sufficient advisement of his constitutional rights before accepting his admission and therefore reverse and remand on that issue. Otherwise, we affirm.
Discussion
I
Sufficiency of Advisements
When a trial court accepts a guilty plea, “the record must contain on its face direct evidence that the accused was aware, or made aware, of his right to confrontation, to a jury trial, and against self-incrimination, . . .” (In re Tahl (1969) 1 Cal.3d 122, 132 [81 Cal.Rptr. 577, 460 P.2d 449], cert, den. 398 U.S. 911 [26 L.Ed.2d 72, 90 S.Ct. 1708], italics in original.) These admonitions are constitutionally compelled. (In re Ronald E. (1977) 19 Cal.3d 315, 320 [137 Cal.Rptr. 781, 562 P.2d 684].) The admonitions must be “express and specific.” (In re Yurko (1974) 10 Cal.3d 857, 863 [112 Cal.Rptr. 513, 519 P.2d 561].) When an accused has not been properly advised of his constitutional rights before admitting a prior conviction, the proper remedy is to remand the matter to the trial court for a limited hearing on the truth of the prior. (People v. Smith (1986) 187 Cal.App.3d 666, 684 [231 Cal.Rptr. 897].)
Here, Balderrama admitted the prior conviction before the trial of his burglary offense. The court advised Balderrama as follows: “The Court: We have arrived in this courtroom to have the jury determine whether or not the charge of residential burglary is true or not, and in that regard you are allowed to have the jury determine the truth or falsity of this prior that you say you wish to admit; and if they do, they will have to find it to have been proved beyond a reasonable doubt, which is a requirement in this country.
“Do you understand that?
“The Defendant: Yes.
“The Court: Do you understand that if you admit this prior, you will not be having the jury determine its validity; you will be admitting its validity to the court?
“The Defendant: Yes.
*285“[The court informs Balderrama of the consequences of admitting the prior.]
“The Court: . . . The alternative is to deny the prior, in which case I would have to read it to the jury and tell them that they’re going to have to undertake to hear evidence on that also. Or, you could ask to have it put over and then the court could determine it after the jury determines your guilt or innocence on the underlying charge. That’s roughly what the alternatives are.
“Do you understand that?
“The Defendant: Yes.
“The Court: And you wish to give up those alternatives and admit that you have been previously convicted?
“The Defendant: Yes.”
In this advisement, the court specifically and expressly told Balderrama he had a right to a jury trial, but did not specifically and expressly tell him. he had a right to confrontation and a right not to incriminate himself. The People nonetheless argue the advisement was sufficient by analogy to People v. Lizarraga (1974) 43 Cal.App.3d 815 [118 Cal.Rptr. 208],
In Lizarraga, the court told the defendant: “[Y]ou have a right to stand on your denial of this prior conviction and require the People to prove this prior conviction beyond a reasonable doubt to the Court through competent evidence” and that by admitting the prior “what you are doing is giving up your right to a trial on the issue of whether or not you suffered this prior conviction.” (43 Cal.App.3d at p. 818, fn. 1.) The Lizarraga court found case law did not demand “literal constitutional terminology,” but permitted “recitation in nonlegalistic terms comprehensible to a layman unschooled in legalistic verbiage, if only it is specific.” {Id. at p. 818.) The court concluded: “The recitation suffices if it communicates to the defendant the essential character of the constitutional privileges in lay language, provided the message does not require resort to inference.” {Ibid.)
The Lizarraga court found the recitation by the trial judge sufficiently communicated the essential character of the constitutional privileges. The court found the right against self-incrimination was effectively communicated “[b]y telling defendant that he had a right to demand a trial at which the prosecution would be required to prove the prior conviction” (43 Cal.App.3d at p. 819) and the right of confrontation was communicated by *286telling the defendant he had a right to force the prosecution to produce the record of the prior conviction and a right to contest its validity (id. at p. 821).
Subsequent cases have generally criticized Lizarraga (see People v. Johnson (1989) 212 Cal.App.3d 1179, 1184-1186 [261 Cal.Rptr. 159]; People v. Casarez (1981) 124 Cal.App.3d 641, 645-646 [177 Cal.Rptr. 451], disapproved on other grounds in People v. Wright (1987) 43 Cal.3d 487, 494-495 [233 Cal.Rptr. 69, 729 P.2d 260]; People v. Hernandez (1979) 100 Cal.App.3d 637, 642 [160 Cal.Rptr. 607]; People v. Pimentel (1979) 89 Cal.App.3d 581, 587 [152 Cal.Rptr. 519], People v. Johnson (1978) 77 Cal.App.3d 866, 875 [143 Cal.Rptr. 852]), found it factually distinguishable (see People v. Garcia (1988) 201 Cal.App.3d 324, 331-332 [247 Cal.Rptr. 94]; People v. Bell (1981) 118 Cal.App.3d 781, 784-785, fn. 1 [173 Cal.Rptr. 669]; People v. English (1981) 116 Cal.App.3d 361, 370-371 [172 Cal.Rptr. 122]) or cited it only for the proposition the admonitions do not have to be in legalistic language (see People v. Garza (1983) 142 Cal.App.3d 131 [190 Cal.Rptr. 824]). No case has expressly followed Lizarraga’s holding that advising a defendant he has a right to demand a trial and require the prosecution to prove the prior conviction is, in itself, sufficient to advise a defendant of his rights against self-incrimination and confrontation. (Compare People v. Kane (1985) 165 Cal.App.3d 480, 486, fn. 2 [211 Cal.Rptr. 628], which cited Lizarraga to support the court’s rejection, without discussion, of the defendant’s claim he had not been adequately advised of his right to confrontation.)
Recently, another division of this district in People v. Johnson, supra, 212 Cal.App.3d 1179, analyzed Lizarraga and declined to follow it for three reasons: (1) case law did not support Lizarraga's holding, (2) the statements made by the trial judge in Lizarraga did not “effectively convey” the right against self-incrimination, and (3) a conclusion the trial judge’s statements “effectively conveyed” the right improperly depended on inference. (Id. at p. 1184.)
The Johnson court stated: “In the only case discussing the holding in Lizarraga, People v. Johnson (1978) 77 Cal.App.3d 866 at page 876 [143 Cal.Rptr. 852], that holding was properly criticized as follows: ‘[W]e are at a loss to understand how telling a defendant that he has the right to a trial on the issue of the prior conviction, and that the prosecution has the burden of proving the prior conviction beyond a reasonable doubt, also tell him that he has a privilege against self-incrimination, which he waives, if he admits the prior. For all that appears in the record, the defendant didn’t even know that he had such a privilege, much less that he waived it. ffl] At best, it may be asserted that the defendant has inferentially waived his privilege. But, as the Lizarraga court itself observed, inference may not be resorted to in order *287to find that the defendant has been advised of his rights.’ ” (Id. at pp. 1184-1185, italics in original.)
The Johnson court found the advisement in Lizarraga did not effectively convey the meaning of the privilege against self-incrimination and contrasted the advisement in Lizarraga, which the court found inadequate, with the advisement given in People v. English, supra, 116 Cal.App.3d 361, 370, which the court found adequate. In People v. English, the court told the defendant he was giving up the right to go to trial where he could “ ‘testify or not testify, as you choose.’ ”
Finally, the Johnson court analyzed how Lizarraga impermissibly relied on inferences for its conclusion.
“[A]lthough Lizarraga purports to avoid the inference prohibited by Tahl in reaching its holding that the essence of the right against self-incrimination was effectively communicated, inference was necessarily involved in Lizarraga and is necessarily involved in the People’s contention in this case. For either the defendant or the court in Lizarraga to see advice of the right against self-incrimination in advice of the right to a trial by jury at which the prosecution has the burden of proof, or for the People in this case to see advice of the Fifth Amendment right in advice of the right to jury trial with the prosecution producing evidence, they must reason that, if the prosecution has the burden of proof at trial or must present evidence against the defendant, then the defendant has the right not to incriminate himself. By any understanding of the word, this is an inference, and it is mere sophistry to contend that the right against self-incrimination was ‘effectively conveyed’ by, and not inferred from, advice of the right to a jury trial with either the prosecution having the burden of proof or producing evidence against the defendant. (Cf.: People v. English, supra, 116 Cal.App.3d at p. 370-371 [communication of right against self-incrimination]; People v. Garza, supra, 142 Cal.App.3d at pp. 132-134 [communication of right to jury trial and right of confrontation].)” (People v. Johnson, supra, 212 Cal.App.3d at p. 1186.)
We find the reasoning of the Johnson courts to be persuasive and likewise decline to follow Lizarraga.
The court’s statements here, telling Balderrama only that he had a right to have the prior proved beyond a reasonable doubt to a jury or to the court as alternatives to admitting the prior, failed to inform Balderrama that he had a right not to incriminate himself and to confront the evidence against him. Since the court failed to advise Balderrama of these rights and to *288obtain an effective waiver, we must remand the matter for a limited hearing on the truth of the priors.
IP*
Disposition
The cause is reversed and remanded for a hearing on the prior conviction enhancement. In all other respects, the judgment is affirmed.
Wiener, J., and Nares, J., concurred.
All statutory references are to the Penal Code unless otherwise specified.
See footnote, ante, page 282.
Cites, in this corpus
- People v. Johnson E005836 · 1989-08-04
- People v. Garcia B020204 · 1988-05-17
- People v. Wright Crim. 25362 · 1987-01-02
- People v. Smith D004490 · 1986-12-01
- People v. Kane Crim. 13418 · 1985-03-08
- People v. Garza AO17028 · 1983-04-21
- People v. Casarez Crim. 4337 · 1981-10-16
- People v. Bell Crim. 11736 · 1981-04-20
- People v. English Crim. 38059 · 1981-02-27
- People v. Hernandez Crim. 3593 · 1979-12-13
- People v. Pimentel Crim. 32842 · 1979-02-16
- People v. Johnson Crim. 15573 · 1978-02-23
- In Re Ronald E. Crim. 19652 · 1977-04-15
- People v. Lizarraga Crim. 7557 · 1974-12-11
- In Re Yurko Crim. 16368 · 1974-03-07
- In Re Tahl Crim. 13410 · 1969-11-07
Cited by
- People v. Moore B052621 · 1992-07-27