PEOPLE v. FARWELL

Amicus Curiae Brief of Criminal Justice Legal Foundation

Cal.October 26, 2016

SUPREME COURT FILED $231009 OCT 26 2016 Jorge Navarrete Clerk IN THE SUPREME COURT °°" OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiffand Respondent, VS. RANDOLPH D. FARWELL, Defendant and Appellant. Court of Appeal, Second Appellate District, Division Five No. B257775 Los Angeles County Superior Court No. TA130219 The Honorable Paul A. Bacigalupo, Judge APPLICATION FOR PERMISSION TO FILE AND BRIEF AMICUS CURIAE OF CRIMINAL JUSTICE LEGAL FOUNDATION . IN SUPPORT OF RESPONDENT y KENT S. SCHEIDEGGER State Bar No. 105178 *KYMBERLEE C. STAPLETON State Bar No. 213463 Criminal Justice Legal Foundation 2131 L Street Sacramento, California 95816 Telephone: (916) 446-0345 Fax: (916) 446-1194 E-mail: Kym.Stapleton@cjlf.org Attorneysfor Amicus Curiae Criminal Justice Legal Foundation IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiffand Respondent, VS. RANDOLPH D. FARWELL, Defendant and Appellant. APPLICATION FOR PERMISSION TO FILE BRIEF AMICUS CURIAE IN SUPPORT OF RESPONDENT To the Honorable Chief Justice of the Supreme Court of the State of California The CriminalJustice Legal Foundation (CJLF) respectfully applies for permission to file a brief amicus curiae in support of Respondent, the People ofthe State ofCalifornia, pursuant to rule 8.520(f) ofthe California Rules of Court.’ Applicant’s Interest CJLF is a non-profit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public _ interest. CJLF seeks to bring the constitutional protection of the accused 1. No party or counsel for a party authored this brief in wholeor in part, and no counsel or party made a monetary contribution intended to fund the preparation or submissionofthis brief. No person other than amicus curiae CJLF made a monetary contribution to its preparation or submission. into balance with the rights ofthe victim andofsociety to rapid,efficient, and reliable determination of guilt and swift execution of punishment. In the present case, the defendant seeksto create a rule of automatic reversal, without regard for thejustice ofthe case or actual prejudice to the defendant, in a defined class of cases. Such a rule would be contrary to the interests CJLF was formedto protect. Need for Further Argument Amicusis familiar with the arguments presented on both sides ofthis issue and believe that further argumentis necessary. Thebrief is submitted with this application and ready for immediate filing. The attached brief brings to the attention of the court additional United State Supreme Court precedent, not previously briefed, regarding the harmless-error procedure it permits that is consistent with the federal constitutional right of due process of law that underlies the admonition requirements of both federal and state law. October 6, 2016 Respectfully Submitted, KYMBERLEE C. STAPLETON Attorneyfor Amicus Curiae Criminal Justice Legal Foundation il into balance with therights ofthe victim and ofsociety to rapid,efficient, and reliable determination of guilt and swift execution ofpunishment. In the present case, the defendant seeks to create a rule of automatic reversal, without regard for the justice ofthe case or actual prejudice to the defendant, in a defined class of cases. Such arule would be contrary to the interests CJLF was formedto protect. Need for Further Argument Amicusis familiar with the arguments presented on bothsidesofthis issue and believe that further argumentis necessary. Thebrief is submitted with this application and ready for immediate filing. The attached brief brings to the attention of the court additional United State Supreme Court precedent, not previously briefed, regarding the harmless-error procedure it permits that is consistent with the federal constitutional right of due process of law that underlies the admonition requirements of both federal andstate law. October 6, 2016 Respectfully Submitted, KYMBERLEE C. STAPLETON Attorneyfor Amicus Curiae Criminal Justice Legal Foundation il TABLE OF CONTENTS Application for permission to file .......... 0.0.0.0. eee ee eee i Table of authorities... 0...ceeeee es iv Summary of facts and case ..... 0...eeeens 1 Summary of argument ...... 0.0... ccc ce ee eee eens 3 Argument ©... 0.0...ceeeen ene eect ne neae 4 I A defendant’s stipulation to the elements of a criminal offense is valid if a review ofthe entire record indicates it was entered into voluntarily and intelligently underthetotality of the CITCUMSTANCES 2...eectee een een e ees 4 A. Evolution of the Boykin/Tahl Admonitions in California ... 4 B. Mosby, Cross, and Section 13 ..............0.00000005 9 C. Courts are Permitted to Examinethe Entire Record on Appellate Review ....... 0... ccc ccc eee eee 12 i Recidivists’ knowledgeof constitutionaltrial rights .............. 19 il Underthe totality of the circumstances, the defendant’s stipulation was entered into knowingly and voluntarily ..................... 20 Conclusion ...... 0... ceceeee ne ence enn 21 ill TABLE OF AUTHORITIES Cases Boykin v. Alabama (1969) 395 U.S. 238... 0.6... . ee eee eee 4,5,6 Brady v. United States (1970) 397 U.S. 742 ............... 8, 20, 21 Chapman v. California (1967) 386 U.S. 18... 6.0... eee eee eee 12 In re Mosley (1969) 1 Cal.3d 913 2.0... ceecee ee 7 In re Tahl (1969) 1 Cal.3d 122.2... 0.0.0... eeeeen ee 7 In re Yurko (1974) 10 Cal.3d 857 2.0...cenee 7 McCarthyv. United States (1969) 394 U.S. 459 ........... 4,5, 6,17 People v. Adams (1993) 6 Cal.4th 570 ....... 0... cece eee eee ee 4 People v. Cross (2015) 61 Cal.4th 164 ................ 8, 10,11, 17 People v. Farwell (2015) 241 Cal.App.4th 1313 2.2.2.2... 0.22. 1, 2, 10, 18, 19, 20, 21 People v. Howard (1992) 1 Cal.4th 1132 ........0....0... 6, 7, 8,9 People v. Levey (1973) 8 Cal.3d 648.2... 0... cece eee eee 7 People v. Mosby (2004) 33 Cal.4th 353 ......... 9, 10, i, 17, 19, 21 People v. Sandoval (2015) 62 Cal.4th 394 ........... 0. ee eee eee 12 United States v. Vonn (2002) 535 U.S.55 ....... 5, 12, 14, 15, 16, 17 Federal Rules Federal Rule of Criminal Procedure 11 .................2-4-- 12, 14 Federal Rule of Criminal Procedure 52 .................220000- 15 California Constitution Cal. Const., art. VI, §13 2.0.0.0... eeecee 12 iv IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiffand Respondent, vs. RANDOLPH D. FARWELL, Defendant and Appellant. BRIEF AMICUS CURIAE OF THE CRIMINAL JUSTICE LEGAL FOUNDATION IN SUPPORT OF RESPONDENT SUMMARYOF FACTS AND CASE Petitioner, Randolph D. Farwell, was convicted by a jury of gross vehicular manslaughter (count 1) and driving with a suspendedor revoked driver’s license (count 2). (People v. Farwell (2015) 241 Cal.App.4th 1313, 1315.) Prior to trial, Farwell’s attorney informedthetrial court that Farwell wasprepared to enter a no contest plea on count2 to take the issue “out of the handsofthe jury,” or alternatively, bifurcate the trial on count 2. Ud. at pp. 1315-1316.) The prosecution was unwilling to accept the no contest plea and objected to the motion to bifurcate. (/d. at p. 1316.) Farwell’s motion to bifurcate was denied. (/bid.) Extensivejury voir dire and pretrial proceedings were held. (/bid.) Ajury was empaneled,andtrial on both counts commenced. (/bid.) After a witness was called and cross-examined, Farwell and his attorney made the decision to stipulate to the elements of count 2. Ud. at p. 1319.) Prior to reading the stipulation into the record, in open court and in Farwell’s presence, the judge informedthejury that the parties agreedto a stipulation “instead of having to bring witnesses in to testify” about the elements charged in count 2. (/d. at p. 1316.) Farwell’s attorney then read the following stipulation aloud to the jury: “on June 21st, 2013, [defendant] wasdriving a motor vehicle while his license was suspendedfora failure to appear and that when he drove, he knew his license was suspended[.]” ([bid.) Atthe trial’s conclusion, the jury found Farwell guilty onall counts. (/bid.) In addition to counts 1 and 2, the District Attorney’s information alleged that Farwell had a priorserious felony conviction. (bid.) Farwell admitted the prior conviction allegation and was sentencedto state prison for a term of 13 years. (/bid.) The prison term consisted of four years on count 1, doubled pursuant to the Three Strikes law, plus five years enhancementfor the prior conviction. (/bid.) A concurrent term was imposed on count 2. (/bid.) Farwell filed a timely notice of appeal arguing that his conviction on count 2 must be reversed. (/bid.) He claimed he wasnot explicitly advised ofhis constitutionaltrial rights before the court accepted his stipulation to the substantive crime of knowingly operating a motor vehicle with a suspendedlicense. (/d. at p. 1315.) A divided panel of the Court of Appeal affirmed the judgment concludingthat on thebasis ofthe entire record, Farwell’s stipulation was voluntary andintelligent underthe totality of the circumstances. (/bid.) This Court granted review on February 3, 2016. SUMMARY OF ARGUMENT Therule of/n re Tahi andits progeny, that failure to strictly follow the Boykin/Tahl advisement procedure is ground for automatic reversal, was wrong as a matter of federal law. It was correctly overturned in Peoplev. Howard, which adopteda “totality of the circumstances”test. People v. Mosby, correctly understood, did not partially overrule Howard and restore automatic reversal for a newly defined class ofcases. Nor could it. Article VI, section 13 of the California Constitution categorically forbids reversal without harmless-error analysis except when federal law requiresit, and federal law does not requiredit here. A reviewing court is not limited to the transcript of the plea hearing andis permitted review beyondthe courtroom colloquyatthe time the plea or stipulation is entered. The entire record is relevant and open to review when considering if a lack of advisements affected the defendant’s substantial rights. Becausereview ofthe entire proceeding is permitted, and reviewing courts can examine the defendant’s understanding throughout the progression ofthe case, there can be no “contemporaneous” requirement. If the record shows that a defendant’s constitutional trial rights were presented at somepointor at multiple points during the progression ofthe case, it is all relevant to the defendant’s knowledge and understanding of those rights and waiverofthose rights whena pleaorstipulation is finally entered. Any previously learned knowledgeis not erased and is not any less intelligent when entered later on. It would be a waste of time and judicial resources to vacate and remandin these types of cases so that the defendant can get a “second chance”ifhe or she later decides the sentence was notsatisfactory on the first go round. ARGUMENT I. A defendant’s stipulation to the elements of a criminal offense is valid if a review of the entire record indicates it was entered into voluntarily and intelligently underthe totality of the circumstances. A defendant’s decision to plead guilty to a substantive crimeis itself a conviction ofthat crime. (Boykin v. Alabama (1969) 395 U.S. 238, 242.) Thus, a guilty plea must be entered into voluntarily andintelligently. Ud. at pp. 242-243.) The voluntary andintelligent requirements seek to ensure that a criminal defendant is aware of the constitutionaltrial rights being given up by pleading guilty. (See People v. Adams (1993) 6 Cal.4th 570, 581-582.) A. Evolution ofthe Boykin/Tahl Admonitions in California. In mid-1969, the United States Supreme Court decided two separate cases that examined the required course of action surroundingthe judicial acceptanceofguilty pleas in federal court and in state court. In McCarthy v. United States (1969) 394 U.S. 459, 460, the Court construed Federal Rule of Criminal Procedure 11 (“Rule 11") and the remedy on appeal for the trial court’s failure to comply with the Rule asit then existed.’ Rule 11 governs the procedure federal district courts must follow before accepting adefendant’s guilty plea. The Court stated that even though Rule 11 is not constitutionally mandated, it was designed to assist the district court judge’s determination of whether the defendant’s guilty plea is truly knowingand voluntary, whichis constitutionally required. (McCarthy, 394 U.S. at p. 465.) Rule 11 acts to assist the trial court with producing a complete court record ofthe factors relevant to a defendant’s knowing and voluntary waiverofconstitutional rights when entering a guilty plea. (See ibid.) 1. At the time McCarthy was decided, Rule 11 was muchshorter and simpler than the present version. Whena plea ofguilty is entered, a defendant waivesseveral constitu- tional rights, includingthe privilege against compulsory self-incrimination, the right to a jury trial, and the right to confront one’s accusers. (/d. at p. 466.) “For this waiverto be valid under the Due Process Clause, it must be ‘an intentional relinquishment or abandonment of a known right or privilege.’ ” (/bid., quoting Johnson v. Herbst (1938) 304 U.S. 458, 464.) The Government asked that the case be remanded for further evidentiary hearings on that issue, but the Court refused. (United States v. Vonn (2002) 535 U.S. 55, 67.) The Court vacated the conviction and allowed the defendantto plead over again.” (McCarthy, 394 U.S.at pp. 471-472.) The Court’s “holding was based solely on the application of Rule 11 and not upon constitutional grounds.” (/d. at p. 464.) In Boykin v. Alabama (1969) 395 U.S. 238, 239, the defendant pleaded guilty to a five-count indictment charging him with common law robbery, which at the time was punishable by death in Alabama. Thetrial 2. In 1969, the McCarthy court refused to remand for further proceedings on whether the waiver was knowing and voluntary and held that when a guilty plea is accepted in violation of Rule 11, the defendant must be given the opportunity to plead anew. In 1975, six years after McCarthy, Rule 11 was amended to include many more detailed procedural requirements. McCarthy adopted aper se reversal rule under the pre-1975 version of Rule 11. In direct response to McCarthy, Rule 11 was amendedagain in 1983 to require courts to evaluate violations under a harmless error standard, instead of reversing outright per se. “The Advisory Committee reasoned that, althougha rule ofper se reversal might have beenjustified at the time McCarthy was decided, ‘[a]n inevitable consequence of the 1975 amendments was someincreasein the risk that a trial judge, in a particular case, might inadvertently deviate to some degree from the procedurewhicha very literal reading of Rule 11 would appear to require.’ [citation] After the amendments, ‘it became more apparent than ever that Rule 11 should not be given such a crabbed interpretation that ceremony was exalted over substance.’ ” (Vonn, 535 U.S. at pp. 69-70.) judge asked the defendant no questions about his plea and the defendant did not address the court. (/bid.) State law mandated a jury to decide the penalty when a defendant pleaded guilty. (/d. at p. 240.) The jury sentenced the defendant to death on each ofthe five indictments. (bid.) On appeal, because the record was devoid of evidence that the defendant understoodthe constitutionaltrial rights he was relinquishing by pleading guilty, the United States Supreme Court reversed the judgment, stating “‘[i]t was error, plain on the face ofthe record,forthe trial judge to accept petitioner’s guilty plea without an affirmative showing, that it was intelligent and voluntary.” (/d. at p. 242.) The Court held that a waiver of constitutional trial rights is as important as the privilege against self- incrimination andtrial byjury, and that confrontation could not be inferred from a silent record. (/d. at p. 243.) Pre-McCarthy (guilty pleas in federal court) and pre-Boykin (guilty pleas in state court) it was assumed without discussion that a criminal defendant voluntarily and intelligently waivedhis or her constitutionaltrial rights when entering a guilty plea. (People v. Howard (1992) 1 Cal.4th 1132, 1175, citing Brady v. United States (1970) 397 U.S. 742, 747, fn. 4.) McCarthy and Boykin changed that assumption and instead required an “affirmative showing”on the record ofthe waiver. (Boykin, 395 U.S. atp. 242.) Neither case, however, detailed what constituted an “affirmative showing.” They simply mandated thetrial courts to create a record ofthe proceedings and did not dictate the exact level of information the trial courts must engage the defendant in whenhe or she pleads guilty. (See Boykin, 395 U.S. at pp. 243-244; McCarthy, 394 U.S. at pp. 468-467, fn. 20.) In Boykin, Justice Harlan’s dissent voiced concern that the Court “in effect fastens upon the States, as a matter of federal constitutional law, the rigid prophylactic requirements ofRule 11 ....” (Boykin, 395 U.S.at p. 245 (dis. opn. of Harlan, J.).) Soon after the McCarthy and Boykin decisions, this court decided Jn re Tahl (1969) 1 Cal.3d 122. Just as Justice Harlan feared, Tahl expanded sg oeBoykin’s “affirmative showing” requirement in California. Tah/ held that the three constitutionaltrial rights discussed in Boykin—self-incrimination, confrontation, and jury trial—‘must be specifically and expressly enumerated for the benefit of and waived by the accused prior to accep- tance ofhis guilty plea.” (/d. at p. 132.) Furthermore, “mere inference, no matter how plausibly drawn from the evidence, wasnotsufficient to meet the constitutional mandate.” (People v. Levey (1973) 8 Cal.3d 648, 653.) Tahl’s holding was based entirely on federal law, not on state law.’ (Howard, | Cal.4th at pp. 1176-1177.) Ifthe three admonitions were not “specifically and expressly enumerated,”it was considered reversible error per se. Ud. at p. 1177.) The express waiver requirement became knownin California as the Boykin/Tahl admonitions. In California, a stipulation admittingto all ofthe elements of a substantive crime is tantamount to a guilty plea andis also subject to the Boykin/Tahl admonition requirement.* (Jn re Mosley (1969) 1 Cal.3d 913, 926, fn. 10.) For manyyears,ifthese admonitions were not expressly enumerated and waived by the defendant, the challenged guilty plea would be automatically reversed on appeal regardless of prejudice. (Howard, | Cal.4th at p. 1177.) California’s interpretation of federal law was unique. Federal ‘appellate courts expressly rejected California’s expansiveinterpretation of 3. “Although we considered the argumentthat the state Constitution also required explicit waivers, we expressly declined to base our holding on state law. We choseto rely instead on federal law because ‘it [was] our view that Boykin necessitate[d] a more precise showing.’ ” (Howard, | Cal.4th at p. 1176.) 4. The Boykin/Tahl admonitions are also required when a defendant admits the truth of a prior conviction that may result in a sentencing enhancement. (Jn re Yurko (1974) 10 Cal.3d 857, 863.) Boykin. (Id. at pp. 1177-1178 & fn. 18.) Because the overwhelming weight offederal authority did not require explicit admonitions and did not reverseper se for their absence, in 1992 this court took anotherlookat the applicable standard of review in Howard. Howard noted that the widely accepted test was whetherthe record affirmatively demonstratesthat “the plea wasvoluntary andintelligent underthe totality ofthe circumstances.” (Id. at p. 1178 & fn. 18, citing North Carolina v. Alford (1971) 400 U.S. 25, 31; Brady v. United States (1970) 397 U.S. 742, 747-748 & fn. 4.) Because Jahl was an interpretation of federal law, and federal standards govern the effectiveness ofwaived federal constitutional rights, this court adopted the federal totality of the circumstances harmless errortest and rejected Jahi’s rule that required automatic reversal without a showing of prejudice. (Howard, 1 Cal.4th at p. 1178.) Even though the Howardcourt adopted the federal standard ofreview, it did not abandon the Boykin/Tahl admonitions requirementat thetrial court level. (Howard, 1 Cal.4th at p. 1178.) Rather, this Court stated that the admonitions remain important and that “explicit admonitions and waiversstill serve the purpose that originally led us to require them: They are the only realistic means of assuring that the judge leaves a record adequate for review.” (Jd. at pp. 1178-1179.) This Court recently reaffirmed “the judicially created rule of criminal procedure requiring full Boykin-Tahl advisementsforall guilty pleas in criminaltrials regardless of whetherthe defendant’s rights are derived from statute or from the state or federal Constitution.” (People v. Cross (2015) 61 Cal.4th 164, 179.) The judicially created rule of Tah/ serves the same function in California courts that Rule 11 serves in federal courts. (See Howard, supra, at 1179.) 5. “{T]he weight of authority today makes it abundantlyclearthat ‘the California interpretation ofBoykin announcedin Tahis not required by the federal Constitution... .’ ” (Howard, 1 Cal.4th at 1177, quoting United States v. Pricepaul(9th Cir. 1976) 540 F.2d 417, 424- 425.) Current law in California requires a reviewing court to determineif the guilty plea or stipulation was voluntary andintelligent underthetotality of the circumstances. (Howard, | Cal.4th at p. 1178.) The best evidence in the record ofthis standard is a showingthat the defendant wasexplicitly advised of the waivedrights at the timeofthe plea or stipulation. (/d. at p. 1179.) However, a lack of express advisements is no longerreversible error without a showingofprejudice to the defendant. (/d. at p. 1178.) In Howard, the defendant was expressly advised of and waived his right to a jury trial and his right to confront witnesses. (1 Cal.4th at p. 1179.) He was not, however, expressly advised of his privilege against self-incrimination and did not expressly waive that right. (/d. at p. 1180.) Pre-Howard, the incomplete advisementofall three trial rights would have been grounds for an automatic reversal. (See People v. Mosby (2004) 33 Cal.4th 353, 360.) However, because Howardadopted the federal standard of review, the court examined the entire record and determined that even though there was no express advisement, the defendant was awareofhis right not to incriminate himself. (Howard, | Cal.4th at p. 1180.) “In replacing the old rule, the focus was shifted from whether the defendant received express rights and advisements, and expressly waived them, to whether the defendant’s admission wasintelligent and voluntary because it was given with an understanding of the rights waived.” (Mosby, 33 Cal.4th at p. 361.) The federal requirement of voluntary andintelligent could be inferred from the evidence in the record and required no “talismanic phrase[.]’’ (Howard, 1 Cal.4th at p. 1180, quoting UnitedStates v. Sherman (9th Cir. 1973) 474 F.2d 303, 305-306.) Thus, there are no “magical words”that mustbe clearly stated on the record for a reviewing court to conclude that the defendant’s waiveris voluntary andintelligent. B. Mosby, Cross, and Section 13. In Mosby, this court reviewed a numberofprior conviction casesafter Howard and categorized them as “silent record” cases and “incomplete advisement” cases. “Truly silent record” cases in the prior conviction context are those in whichthere is no express advisement or waiver ofthe Boykin/Tahl admonitions. (33 Cal.4th at p. 361.) “Incomplete advisement” cases, on the other hand, are those in which the defendant is advised of some,but not all, of the three Boykin/Tahl admonitions. (/d. at pp. 362- 364.) The dissenting opinion in the Court ofAppeal and the defendant read Mosby as creating a new rule ofautomatic reversal in a class ofcases. (See Farwell, 241 Cal.App.4th at p. 1324 (dis. opn. of Mosk,J.).) The dissent contendsthat in “silent record”cases, “a reviewing court cannotinferthat the defendant knowingly andintelligently waived his [Boykin/Tahlrights and] reversal is required . . . without a harmless error analysis.” (Ibid., italics added.) But, “[iJn incomplete advisement cases, reversal is not required if ‘the totality of the circumstances surrounding the admission’ supports the conclusion that the admission was voluntary andintelligent.” ([bid.) In essence,the dissent contends that Mosby carved outa discrete class of cases, exempted them from the general rule of Howard, and reinstated the discredited automatic reversalrule ofthe 7ahl line for these cases. The key question in this case is not whether People v. Cross (2015) 61 Cal.4th 164 subsequently overruled Mosby. (Cf. Farwell, 241 Cal.App.4th atp. 1325 (dis. opn.).) The key question is whether Mosby itself overruled Howardsub silento as to a newly defined class of cases. The defendant says, “The ideathat this court would overrule such a significant precedent without explicitly saying so is not how California’s appellate system functions.” (Reply Brief 8-9.) Indeed. The context of Mosby as a prior conviction case is important to understanding why knowing andintelligent waiver had not been estab- lished in the cases described as “truly silent record” cases, not because there is some different rule for enhancements as opposed to substantive 10 offenses. (Cf. Reply Brief 7-8.) The fact that there is a right to trial on the question of a prior convictionat all is not obvious to a layman. Without advisement, the defendant might well believe that the record ofhis prior conviction is conclusive. Thus, the record ofthe preceding jury trial on the substantive offense provides no indication that the defendant was aware that he had a rightto trial on a prior conviction. (See Mosby, 33 Cal.4th at p. 362.) However, where the record does indicate that the defendant knew he hada rightto trial on prior convictions, the record ofthe precedingtrial on the substantive offense may establish his understanding ofthe subsid- iary rights that are includedin rightto trial. (See id. at p. 364.) Rather than carving out a set of cases as being exempt from the Howard “totality ofthe circumstances”rule, Mosby is better understood as identifying a frequently occurring fact pattern that typically fails the rule. The defendant’s awarenessofhis right to trial of substantive offenses, as well as enhancementallegations that are typically tried in the guilt phase (such as gun use or great bodily injury), may very well be inferable from the record of proceedingsprior to the plea orstipulation in question. In rare cases, that may even betrue fora prior conviction allegation, though it was not in the “silent record” cases reviewed in Mosby. This is how People v. Cross, supra, understood and applied both Howard and Mosby. Cross notes Howard’s “totality ofthe circumstances” rule, cites Mosby with nohintthatit created an exception to Howard, and reverses based on the fact that there is nothing in the record to support an inference “that Cross’s stipulation was knowing and voluntary.” (61 Cal.4th at p. 180.) This is the application of the Howardrule to the facts ofthe case beforeit, not an exception to Howardfordiscrete class ofcases. 1] If federal law does not require a rule of automatic reversal, then California Constitution article VI, section 13 flatly forbids one.° “The plain meaning ofthis provision is that a reviewing court may not reverse a judgment without addressing harmless error.” (People v. Sandoval (2015) 62 Cal.4th 394, 445.) That is, no doubt, why Zahl andits misguided progeny purportedto rest their automatic reversal rule on a claim that it was required by Boykin. (See supra at p. 7, fn. 3.) With this error definitively corrected in Howard, section 13 prohibitsits reintroduction on independent state grounds, even in part. C. Courts are Permitted to Examine the Entire Record on Appellate Review. In federal courts, pleas and plea agreements are covered by Rule 11, a rule that serves the same function as California’s judicially created rule of Tahl. To help ensure a guilty plea is knowing and voluntary, Rule 11(b) dictates the steps a federaltrial judge must take before acceptingthe guilty plea. (United States v. Vonn (2002) 535 U.S. 55, 62.) Rule 11(b)(1) contains the three Boykin/Tahl admonitions, plus 12 more admonitions.’ 6. Federal law does, of course, trump section 13 when it requires a stricter standard. (See Chapmanv. California (1967) 386 U.S. 18, 20 & fns. 3, 24 (predecessor of § 13).) 7. Federal Rule of Criminal Procedure 11(b)(1) provides: (b) Considering and Accepting a Guilty or Nolo Contendere Plea. (1) Advising and Questioning the Defendant. Before the court accepts aplea ofguilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendantof, and determine that the defendant understands, the following: (A) the government’s right, in a prosecution for perjury or false statement, to use against the defendant any statement that the 12 defendant gives underoath; (B) the right to plead not guilty, or having already so pleaded, to persist in that plea; (C) the right to a jury trial; (D)the right to be represented by counsel—andifnecessary have the court appoint counsel—at trial and at every other stage of the proceeding; (E) the rightat trial to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses; (F) the defendant’s waiver ofthese trial rights if the court accepts a plea of guilty or nolo contendere; (G) the nature of each charge to which the defendantis pleading; (H) any maximumpossible penalty, including imprisonment, fine, and term of supervisedrelease; (1) any mandatory minimum penalty; (J) any applicable forfeiture; (K) the court’s authority to order restitution; (L) the court’s obligation to impose a special assessment; (M)in determining a sentence, the court’s obligation to calculate the applicable sentencing-guideline range and to consider that range, possible departures under the Sentencing Guidelines, and other sentencing factors under 18 U.S.C. §3553(a); (N) the terms of any plea-agreement provision waiving the right to appeal orto collaterally attack the sentence; and 13 One such requirementis thetrialjudge’s duty to advise the defendant ofhis or her right to counsel. (Fed. Rules Crim. Proc., rule 11(b)(1)(D), 18 U.S.C.) In Vonn, the defendant was charged with armed bank robbery and use of a firearm during a crime of violence. (535 U.S. at p. 59.) The defendant was appointed counsel and advised by the magistrate at two separate court appearances of his constitutional rights. (/bid.) The defendant eventually decidedto plead guilty to both charges. (/d. at p. 60.) Whenenteringhis guilty plea, the defendant was advisedby thetrial court of all but one of the Rule 11 admonitions. Thetrial court did not inform the defendant of his right to counsel if he were to choose totry the case instead. ([bid.) On appeal, the defendant sought to set aside his convictions on the groundthat he wasnotadvisedofhis right to counselas required by Rule 11. Ud. at p. 61.) The Ninth Circuit put the burden on the Governmentto show that the omission was harmless and had noeffect on the defendant’s substantial rights. (Jbid.) The Ninth Circuit further limited its review to the plea proceedings and refused to examinethe entire record to determine if the defendant was aware of his continuing right to counselat trial. (Ibid.) The Ninth Circuit held that the Government failed to meet its burden to show thetrial court’s error was harmless and it vacated the convictions. (bid.) The United States Supreme Court granted certiorari and reversed on both issues. (/d. at pp. 61-62.) The Vonn Court explained that Rule 11 had “evolved” over the years from a “general schemeto detailed plan[.]” (/d. at p. 62.) Rule 11 is a “detailed formulafortesting a defendant’s readiness to proceed to enter a plea of guilty[.]” (U/d. at p. 69.) Ifa trial judge does not precisely dictate each of the fifteen Rule 11 admonitions to the (O) that, if convicted, a defendant whois not a United States citizen ‘may be removed from the United States, denied citizenship, and denied admission to the United States in the future. 14 defendant, Rule 11 includes a provision for “dealing with a slip-up by the judgein applying the Rule itself.” (/d. at p. 62.) Rule 11(h) provides that “(ajny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.” (/d. at p. 62.) Section (h) to Rule 11 was added in 1983 because “ ‘Rule 11 should not be given such a crabbedinterpretation that ceremony wasexalted over substantce.’ ” (/d. at pp. 70, quoting Advisory Committee’s Notes.) The Vonn Court compared Rule 11(h) to Federal Rule of Criminal Procedure 52(a), which allows the Governmentto provethat a timely error raised on appeal by the defendantis “harmless” and thus has noeffect on the defendant’s substantial rights. (/d. at p. 62.) The flip side of Rule 52(a), is Federal Rule ofCriminal Procedure 52(b). The “plain error”rule allowsa defendant an opportunity to proveanerror, not timely raised in the trial court, affected his or her substantial rights and can be reviewed on appeal. (/bid.) Under Rule 52(b),“the defendant whosat silent attrial has the burden to show that his ‘substantial rights’ were affected.” (/d. at p. 63.) Rule 11(h)is similar to Rule 52(a), but does not contain a plain-error provision comparable to Rule 52(b). The Vonn Court first addressed whether Rule 11’s harmless error standard eliminated a silent defendant’s burden undera plain error review like that of Rule 52(b). If so, it would allow a defendant and his counsel to sit silent at trial then give the defendantthe right to require the Govern- ment to prove the Rule 11 error was harmless. The Court refused to endorse such a result. “{A] defendant could chooseto say nothing about a judge’s plain lapse under Rule 11 until the moment of taking a direct appeal, at which time the burden would alwaysfall on the Governmentto prove harmlessness. A defendant could simply relax and wait to see if the sentence later struck him assatisfactory; if not, his Rule 11 silence would haveleft him with clear but uncorrected Rule 11 error to place on the Government’s shoulders. ... [T]he value of finality requires defense counsel to be onhis toes, notjust the judge, and the defendant 15 whojustsits there when a mistake can be fixed cannotjustsit there whenhespeaksuplater on.” (/d. at p. 73.) Congress did not intend Rule 11(h) to trump Rule 52(b)in all Rule 11 cases. (/d. at p. 74.) Thus, the defendant and his lawyer have an obligation to bring a Rule 11 violation to the court’s attention at trial. (Ud. at p. 73, fn. 10.) “A defendant’s right to counsel on entering a guilty plea is expressly recog- nized in Rule 11(c)(2), and counselis obliged to understand the Rule 11 requirements.It is fair to burden the defendantwith his lawyer’s obligation to do whatis reasonably necessary to render the guilty plea effectual and to refrain from trifling with the court. It therefore makes sense to require counsel to call a Rule 11 failing to the court’s attention.” (Jbid.) The same is true for a defendantchoosingto represent himself.® (/bid.) The Vonn Court then addressed the scope of an appellate court’s inquiry into Rule 11 violations. (/d. at p. 74.) The Ninth Circuit confined itselfto only the record ofthe plea proceeding. (/bid.) The Supreme Court disagreed and held that Congress intended otherwise. (/bid.) Althoughit is true that prior to the addition of section (h), under McCarthy, if the defendant alleged on appeal that he or she was not fully advised of the panoply of admonitions, the reviewing court was to only examine “the record at the time the plea is entered{.|” Ud. at p. 75, quoting McCarthy, 8. “It is perfectly true that an uncounseled defendant may not, in fact, know enoughto spot a Rule 11 error, but when a defendant chooses self-representation after a warning from the court ofthe perils this entails, see Faretta v. California, 422 U.S. 806, 835 (1975), Rule 11 silenceis one ofthe perils he assumes. Any other approachis at odds with Congress’s object in adopting Rule 11, recognized in McCarthy [citation], to combat defendants’ ‘often frivolous’ attacks on the validity of their guilty pleas, by aiding the district judge in determining whetherthe defendant’s plea was knowing and voluntary and creating a record at the timeofthe plea supporting that decision.” (Vonn, 535 U.S.at p. 73, fn. 10.) 16 394 US.at p. 470,italics in original.) If not contemporaneous,the courts were reversing per se and allowing defendants to plead again anew. (McCarthy, 394 U.S.at p. 472.) With the enactment of Rule 11(h), the Vonn Court held that a reviewing court is not limited to only the transcript ofthe plea hearing and Rule 11 colloquy. (Vonn, 535 U.S.at p. 75.) Rather, the entire record is relevant and open to review when considering if a Rule 11 error affected the defendant’s substantial rights. (/bid.) Vonn’s interpretation of the Federal Rules of Criminal Procedureis, ofcourse, not binding on state courts interpreting their own rulesandstate- law precedents. Vonn is important, though, becauseofits implicit holding that the harmless-error procedure it permits is consistent with the federal constitutional right of due process of law that underlies the admonition requirements of both Rule 11 and Zahl. (See id. at p. 74, n. 10 (rejecting argument that plain-error rule would “leave some ‘unconstitutional pleas’ uncorrected”’).) California soon followed Vonn’s lead and also permitted review beyond the courtroom colloquyat the time theplea or stipulation is entered. (Mosby, 33 Cal.4th at p. 361, citing Vonn, 535 U.S. at p. 76; People v. Cross (2015) 61 Cal.4th 164, 180.) “[I]f the transcript does not reveal complete advisements and waivers, the reviewing court must examine the 999record of‘the entire proceeding’ to determine if underthe totality ofthe circumstances, the waivers were intelligent and voluntary. (Mosby, 33 Cal.4th at p. 361, italics added.) Becausereview ofthe entire proceeding is permitted, and reviewing courts can examine the defendant’s understanding throughout the progression ofthe case, there can be no “contemporaneous” requirement. When a defendant is made awareofhisor hertrial rights at a preliminary hearing or jury voirdire, then at a later proceeding choosesto plead guilty or enter into a stipulation, any previously learned knowledgeis not erased 17 and the pleais not any less intelligent when entered later on. In this case, the defendant was represented by counsel and in the middle of a jury trial upon which witnesses were called and cross-examined. He and his attorney then made the strategic decision to stipulate to the charge of driving with a suspendedor revoked driver’s license to take the issue “out of the hands of the jury” and to avoid “having to bring witnesses in to testify.” (Farwell, 241 Cal-App.4th at pp. 1315-1316.) Trial on the count of vehicular manslaughter continued. The defendant chosenotto testify either beforeor after the stipulation. Thus, his right to a jury trial, his right to confront witnesses, and his right to remain silent wereall afforded to him and he was well aware of those rights ‘when the stipulation was entered. Requiring the admonitions to be contemporaneouswith the guilty plea or stipulation is contrary to established federal andstate law, and is a waste ofjudicial time and resources. Some criminal cases span several months before going to trial. Somelast several months and nevergetto trial. All of the proceedingsleading upto thetrial or decision not to go to trial are relevant to the defendant’s knowledge and understanding of the criminal justice system andtherights affordedto criminal defendants. At each of those proceedings where the defendant is present, he or she is observing, listening, and taking in the criminal process. If the record shows a defendant’s constitutional trial rights were presented at some point or at multiple points during the progression of the case,it is all relevant to the defendant’s knowledge and understanding of those rights and waiver of those rights when a plea orstipulation is finally entered. It would be a waste of timefor all involved to vacate and remandin these types ofcases so that the defendant can get a “second chance”if he or she later decides the sentence wasnotsatisfactory on thefirst go-round. 18 II. Recidivists’ knowledge of constitutional trial rights. Whenreviewing the entire record “ ‘a defendant’s prior experience with the criminal justice system’ is . . . ‘relevant to the question [of] whether he knowingly waivedconstitutional rights.’ ” (Mosby, 33 Cal.4th at p. 365, quoting Parke v. Raley (1992) 506 U.S. 20, 37.) A defendant with a criminal history is not naive to the legal process afforded to criminals. He or she has presumably been arrested and jailed, read the Mirandarights, advised by an attorney, and proceededto trial or entered into a plea agreement. At previoustrial or plea agreement, the defendant was presumably advised of the Boykin/Tahl admonitions. Asa result, the defendanteither served a jail sentence, was released on parole, or was placed on probation. This prior experience indicates a defendant’s “ ‘knowledge and sophistication regarding his [legal] rights.’ ” (/bid., quoting Parke, 506 U.S. at pp. 36-37.) Whena person continues to commit crimes, even after being caught and punished, he or she is armed with the legal knowledge gained during those past experiences. In this case, the defendant was convicted of engagingin anillegal speed contest in February 2010, and convicted again ofa residential burglary in July 2010 (a strike). (Farwell, 241 Cal.App.4th at p. 1320.) Unfortunately, the illegal speed contest conviction was not enoughto keep him from driving with a suspendedlicense andthuskilling a person while driving. In both of the defendant’s prior convictions, he either pled guilty or no contest to the charges or proceededto trial. Thus, he was fully aware of the constitutional trial rights afforded to him when hestipulated to driving with a revoked or suspended driver’s license on the advice of counsel duringhistrial. 19 III. Underthe totality of the circumstances, the defendant’s stipulation was entered into knowingly and voluntarily. The Court of Appeal majority reviewed the entire record and found thatit affirmatively showed the defendant’s stipulation wasintelligent and voluntary. (Farwell, 241 Cal.App.4th at p. 1321.) The court foundthat the defendant’s right to trial, to remain silent, and to confront and cross- examine witnesses was mentionedor discussedat least 45 times. (/d. atp. 1316.) Priorto trial, the Court explicitly advised the defendantofhisright to trial within 60 days and was asked if he understood that right. (/d. at p. 1315.) The defendant respondedaffirmatively and expressly waived that right. (/bid.) Also priorto trial, the defendant’s attorney informed the court that the defendant wanted count 2 “taken out ofthe handsofthe jury” and waspreparedto enter no contest on that count. (/d. at pp. 1315-1316.) Attrial and in the defendant’s presence, the jury was informedofthe defendant’sright to trial, the purpose of a jury trial, the defendant’s rights to confront and cross-examinethe prosecution’s witnesses, the defendant’s right notto testify and his right to remainsilent. (/d. at pp. 1318-1320.) Trial commenced on both count 1 and count 2. (/d. at p. 1318.) The state called a witness and defendant’s counsel cross-examinedthat witness. (Id. at p. 1319.) The defendant and his attorney made the decision to stipulate to the elements ofcount 2 during the veryjurytrial that he claims he was inadequately advisedof. Criminal defendants make the decision to plead guilty or to stipulate to the elements of a crime for many different reasons. (Brady v. United States (1970) 397 U.S. 742, 756-757.) “The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision.” (/d. at p. 757.) 20 The defendant was represented and advised by competent counsel at trial.” He was made aware bythecourt ofthe charges brought against him and of his associated trial rights. Further, there is no claim that the defendant is incompetent. (See id. at p. 756.) Underthe applicable standard of review,if a recordis truly “silent,” a reviewing court will be unable to conclude that a defendant’s waiver was voluntary andintelligent. (See Mosby, 33 Cal.4th at p. 362.) This record is not silent. The defendant is a recidivist. He has been previously convicted of felony burglary and for engaging in an illegal speed contest. (Farwell, 241 Cal.App.4th at p. 1320.) Even though the plea colloquy does not show a direct dialog between the judge and the defendant regarding the three Boykin/Tahl admonitions, the record is replete with evidence that the defendant was advised or informedofhis constitutional rights throughoutthe stages of this case. Therefore, the Court of Appeal correctly concluded that under the totality of the circumstances, the defendant voluntarily, knowingly, and intelligently waived his constitu- tional rights when he and his attorney made the decision during trial to stipulate to count 2 of knowingly driving with a suspended or revoked driver’s license. CONCLUSION The judgmentof the Court of Appeal for the Second District should be affirmed. October 6, 2016 Respectfully Submitted, C. haplca KYMBERLEE C. STAPLETON Attorneyfor Amicus Curiae Criminal Justice Legal Foundation 9. Defendant has made no ineffective assistance of counsel claim. 21 CERTIFICATE OF COMPLIANCE Pursuantto California Rules of Court, Rule 8.520, subd. (c)(1) I, Kymberlee Stapleton, hereby certify that the attached briefamici curiae contains 6592 words,as indicated by the computer program used to prepare the brief. Date: October 6, 2016 Respectfully Submitted, KYMBERLEEC. STAPLETON Attorneyfor Amicus Curiae DECLARATION OF SERVICEBY U.S. MAIL The undersigned declares under penalty of perjury that the followingis true and correct: I am over eighteen years of age, not a party to the within cause, and employed by the Criminal Justice Legal Foundation, with offices at 2131 L Street, Sacramento, California 95816. On the date below I served the attached document by depositing true copies of it enclosed in sealed envelopes with postage fully prepaid, in the United States mail in the County of Sacramento, California, addressed as follows: Gary A. Lieberman Deputy Attorney General 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Attorneyfor Respondent People ofthe State ofCalifornia Jonathan B. Steiner Executive Director California Appellate Project (LA) 520 S. Grand Avenue, 4th Floor Los Angeles, CA 90071 Attorneyfor Defendant Randolph D. Farwell Samantha Borghi Deputy District Attorney Los Angeles County District Attorney’s Office 210 West Temple Street Los Angeles, CA 90012 Sherri R. Carter, Clerk of the Court For: Hon. Paul A. Bacigalupo Los Angeles County Superior Court 111 N. Hill Street Los Angeles, CA 90012 Clerk, California Court of Appeal Second Appellate District, Division Five 300 S. Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 On the date below [ submitted one electronic copy of the attached document to the California Supreme Court by using the Supreme Court’s Electronic Document Submission system. Executed on October 6, 2016, at Sacramento, California. Co awe Irma H. Abella