In Re Tahl

PETERS, J., Concurring and Dissenting.

I concur with the majority’s conclusion that the exclusion of jurors Sonneborn and Delaney constituted reversible error as to the penalty verdict, and with the majority’s reading of Boykin v. Alabama (1969) 395 U.S. 238 [ 23 L.Ed.2d 274 , 89 S.Ct. 1709 ] as requiring a trial judge expressly to explain, and a defendant expressly to waive, constitutional rights to a jury trial, to confrontation, and against self-incrimination before a guilty plea is accepted. I also concur with the majority’s refusal to apply to decisions final prior to Boykin that case’s requirement that express explanations and waivers appear on the record.

I believe, however, that the realities of criminal justice demand a more basic reform of plea procedures than that undertaken' by the majority if we are to serve the laudable objectives of Boykin . A trial judge cannot meaningfully assess the voluntariness of a guilty plea, and the record of plea proceedings cannot fairly preclude a claim of the plea’s invalidity, as long as defendants are expected to hide the most common motivation for such pleas: plea bargains. I would require that all plea bargains be set forth on the record and that defendants be fully advised of the possible consequences of the bargain they have entered.

We have recognized that a substantial portion — probably the vast majority—of criminal cases are disposed of through the process of plea bargaining. (In re Hawley, 67 Cal.2d 824, 828 [ 63 Cal.Rptr. 831 , 433 P.2d 919 ].) We also know that most bargains do not appear on the record, and that defendants whose pleas have been obtained by promises of leniency are usually expected to deny the existence of such promises in spite of the common knowledge of judge, prosecutor, and defense counsel to the contrary. (See, e.g., American Bar Assn. Advisory Committee on the Criminal Trial, Standards Relating to Pleas of Guilty (tentative draft 1967) p. 61.) The result, in such cases, is that the entry of the plea is a ritual in which the recitations of the participants have little relation to reality. A defendant who is expected to lie when the judge asks if a guilty plea is the result of a promise of leniency is in no position to engage in a forthright exchange with the same judge at the same time when the question is the defendant’s understanding and relinquishment of his constitutional rights. Only if the defendant can be expected to be truthful will the Boykin *139 procedure protect against unknowing or involuntary waivers. If the defendant is expected merely to recite a script, a full record will be of absolutely no use in distinguishing the meritorious from the frivolous collateral attacks on guilty pleas.

An important part of a trial judge’s task is to ensure that a guilty plea is not the product of “ ‘duress, fraud, or other fact overreaching the free will and judgment of a defendant’ ” (People v. Wadkins, 63 Cal.2d 110, 114 [ 45 Cal.Rptr. 173 , 403 P.2d 429 ]), and to forestall frivolous attacks on such pleas. Accordingly, I believe that whenever such information is relevant to the terms of a disclosed bargain, a defendant should be told of the broad discretion of the Adult Authority (Pen. Code, §§ 1168, 3020, 5077), that the authority is apprised of the prosecutor’s and judge’s views of the defendant and his crime (Pen. Code, § 1203.01), and that in determining the defendant’s sentence and parole eligibility, the authority may consider charges that the prosecutor has agreed to drop in return for the guilty plea.

When the trial judge is fully aware of the terms of a plea bargain, and satisfied that the plea is otherwise valid, he should give the defendant an opportunity to withdraw the plea if the judge will not accept those terms. (People v. Delles, 69 Cal.2d 906 [ 73 Cal.Rptr. 389 , 447 P.2d 629 ].)

In two respects, I disagree with the majority. I would hold (1) that Boykin’s formal requirement of record proof of explanations and waivers applies to all cases not yet final, and (2) that Boykin’s substantive requirement that valid waivers in fact accompany a plea—regardless of the state of the record—is entitled to full retroactive effect.

As to the first point, I believe that Boykin’s formal requirement should apply to cases not yet final in accord with “[t]he historic pattern of applying the court’s current expression of a basic principle to cases pending on appeal. . . .” (People v. Charles, 66 Cal.2d 330, 334 [ 57 Cal.Rptr. 745 , 425 P.2d 545 ].) Especially where only decisions based on guilty pleas are involved, and the time between plea and finality relatively short, I do not believe that the burden on the administration of justice or the dimming memories of potential witnesses justifies any departure from the “historic pattern.” (See also my dissents in People v. Edwards, 71 Cal.2d 1096, 1110 [ 80 Cal.Rptr. 633 , 458 P.2d 713 ]; People v. Feggans, 67 Cal.2d 444, 449 [ 62 Cal.Rptr. 419 , 432 P.2d 21 ]; People v. Rivers, 66 Cal.2d 1000, 1005 [ 59 Cal.Rptr. 851 , 429 P.2d 171 ]; People v. Rollins, 65 Cal.2d 681, 693 [ 56 Cal.Rptr. 293 , 423 P.2d 221 ].)

My second disagreement with the majority relates to the substantive law *140 enunciated by Boykin . Faced with a record which revealed nothing more than the fact of the petitioner’s guilty plea, Boykin noted that such a plea is “more than a confession” and involves a waiver of rights to a jury trial, to confrontation, and against self-incrimination. (395 U.S. at pp. 242-243 [23 L.Ed.2d at pp. 279-280].) Boykin reasoned that since the admission of a confession must be based on a “ ‘reliable determination on the voluntariness issue,’ ” and since a waiver of the right to counsel is invalid unless the record, or allegation and evidence, shows an intelligent and understanding rejection of counsel by the accused, “[w]e think that the same standard must be applied to determining whether a guilty plea is voluntarily made.” (Id., at p. 242 [ 23 L.Ed.2d at p. 279 ].) Because prior case law precluded presuming a waiver of counsel from a silent record, and in order to facilitate direct and collateral review, Boykin concluded that “[w]e cannot presume a waiver of these three important federal rights from a silent record.” (Id., at pp. 242-244 [23 L.Ed.2d at pp. 279-280].) I agree with the majority that Boykin’s concern with the state of the record means that in the future we must presume the absence of constitutional waivers from the existence of a silent record. This is the formal and prophylactic aspect of Boykin . But Boykin also stands for the proposition that a guilty plea includes constitutional waivers and is therefore invalid unless in fact entered by a defendant who understands the implications of the plea and has decided voluntarily to forego his rights.

Although the majority does not address itself to this substantive aspect of Boykin , its affirmance of petitioner’s guilt verdict in the face of his allegations implies a denial of retroactivity not only to Boykin’s formal demands, but also to the substantive rights which those demands were designed to protect.

In so doing, the majority has departed from the practice of both this court and the United States Supreme Court. Thus, although both courts have denied retroactivity to decisions excluding confessions obtained in the absence of counsel, both courts have recognized that collateral relief is available for those who can show that their confessions were in fact involuntary. (Johnson v. New Jersey (1966) 384 U.S. 719 , 730 [ 16 L.Ed.2d 882 , 86 S.Ct. 1772 ]; People v. Rollins, supra, 65 Cal.2d at p. 686; In re Lopez, 62 Cal.2d 368, 375-377 [ 42 Cal.Rptr. 188 , 398 P.2d 380 ].) Similarly, although both courts have denied retroactivity to decisions demanding the presence of counsel at lineups to ensure fairness, both courts have recognized that collateral relief is available for those who can show that their lineups were in fact violative of due process. (Stovall v. Denno (1967) 388 U.S. 293, 299 [ 18 L.Ed.2d 1199, 1204 , 87 S.Ct. 1967 ]; People v. Feggans, supra, 61 Cal.2d at pp. 448-449.)

Even the federal decisions' upon which the majority relies are in full *141 accord with retroactive application of the substantive rights protected by the prospective procedure with which they deal. In denying retroactive effect to Boykin , the majority analogizes the Boykin case to McCarthy v. United States (1969) 394 U.S. 459 [ 22 L.Ed.2d 418 , 89 S.Ct. 1166 ], and today’s case to Halliday v. United States (1969) 394 U.S. 831 [ 23 L.Ed.2d 16 , 89 S.Ct. 1498 ], McCarthy interpreted rule 11 of the Federal Rules of Criminal Procedure to require that a district judge personally address a defendant to determine that he understands the nature of the charges against him and the consequences of a guilty plea, and to demand that a district judge refuse to accept such a plea until he is satisfied that it has a basis in fact. The McCarthy court held that any defendant whose plea was accepted without full compliance with rule 11 could plead anew. Although Halliday denied retroactive effect to McCarthy’s rule that a formal violation of rule 11 per se entitles a defendant to withdraw his guilty plea, the court was careful to point out that “a defendant whose plea has been accepted without full compliance with Rule 11 may still resort to appropriate post-conviction remedies to attack his plea’s voluntariness. Thus, if his plea was accepted prior to our decision in McCarthy , he is not without a remedy to correct constitutional defects in his conviction. Cf. Johnson v. New Jersey, supra, at 730 [ 16 L.Ed.2d at 890 ].” (394 U.S. at p. 833 [23 L.Ed.2d at p. 20].) The Halliday court noted that the petitioner before it had already been afforded a hearing on the voluntariness of his plea, at which “the Government had met its burden of demonstrating that petitioner entered his plea voluntarily with an understanding of the nature of the charges aganist him.” (Id., at pp. 831-832 [23 L.Ed.2d at p. 19).)

Accordingly, the logic of Johnson v. New Jersey, supra, Stovall v. Denno, supra, and Halliday v. United States, supra, means that today’s decision should deny retroactive effect only to the formal requirements of Boykin , and that we should give full retroactive effect to the substantive rights which the formalities were designed to protect. Any prisoner convicted on a guilty plea should be entitled to collateral relief if he can show that the plea was not voluntary in the constitutional sense because unaccompanied by understanding and voluntary waivers of constitutional rights to confrontation, to a jury trial, and against self-incrimination.

We should accord the substantive rights Boykin enunciated full retroactive effect because any violation of those rights fundamentally and completely “infects the integrity of the truth-determining process at trial. . . .” (Stovall v. Denno, supra, at p. 298 [ 18 L.Ed.2d at p. 1204 ].) Unlike a violation of Boykin’s formal requirements, any departure from Boykin’s substantive rule necessarily means that a defendant has pleaded guilty without voluntarily and intelligently waiving his rights to a jury trial, *142 to confrontation, and against self-incrimination. In turn, any violation of Boykin’s substantive demand means that an invalid plea has precluded any truth-determining .process; thus considerations of reliance and the burden on the administration of justice are improper. (Cf. Desist v. United States (1969) 394 U.S. 244, 251-252 [ 22 L.Ed.2d 248, 256-257 , 89 S.Ct. 1030, 1048 ].)

The majority indicates that a prisoner who pleaded guilty prior to Boykin will be forced to rely on pre-Boykin California law to attack that plea—law which did not require that a trial judge give a defendant any admonition prior to accepting his guilty plea if that defendant were represented by counsel (People v. Mendez, 27 Cal.2d 20, 22 [ 161 P.2d 929 ]; People v. Loeber, 158 Cal.App.2d 730, 735-736 [ 323 P.2d 136 ]), and which held that “no error in the [plea] procedure could have prejudiced [an] appellant because of a failure of the court to enumerate” constitutional rights. (People v. Emigh, 174 Cal.App.2d 392, 394-395 [ 344 P.2d 851 ].) In short, California law conclusively presumed waiver from a silent plea record whenever the defendant was represented by counsel. (Cf. Witkin, Cal.Criminal Procedure (1963) § 253, p. 234.)

Although the petition before us is primarily concerned with the inadequacy of the record of the plea proceedings, the petitioner expressly alleges that at the time of his plea he did not comprehend the nature of the charges against him, that he was ignorant of the felony-murder doctrine, and had no appreciation of the fact that his plea made him eligible for capital punishment—in part because he was under the influence of “six doses” of phenobarbital. In response, the majority cites In re Cameron, 68 Cal.2d 487, 501, fn. 8 [ 67 Cal.Rptr. 529 , 439 P.2d 633 ], for the proposition that “[w]ith a hypnotic drug ... the fact that the individual is conscious indicates that he is no longer under the influence of the drug.” That quote paraphrases medical testimony in a totally unconnected case which is in no way binding on the present petitioner. Especially when the People admit that petitioner had been receiving three lA grain doses of phenobarbital a day, and when medical authorities indicate that barbituates affect different subjects in different ways and may result in the subject becoming mentally confused (see Brown, The Enigma of Drug Addiction (1961) p. 27; 1 Lundquist, Methods of Forensic Science (1962) p. 377), I do not think we should dismiss the allegation summarily.

The majority also alludes to the petitioner’s affirmative responses to questions as to whether he had been advised of his rights, the nature of the charges against him, and the consequences of his plea. But these responses beg the questions in issue: only if petitioner in fact understood the felony-murder doctrine, the nature of the charges against him, the fact that his plea *143 made him eligible for capital punishment, and the extent of his constitutional rights could he have been competent to answer.

In my view the petitioner has sufficiently alleged that his plea was involuntary and that he did not knowingly waive his rights. I believe he should be afforded a hearing to determine the truth of his allegations.

Petitioner’s application for a rehearing was denied December 10, 1969, and the opinion was modified to read as printed above. Peters, J., was of the opinion that the petition should be granted.