People v. Gandy ( 2017 )


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  • Filed 3/29/17
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION FOUR
    THE PEOPLE,                           B264452
    Plaintiff and Respondent,          (Los Angeles County
    Super. Ct. No. GA081997)
    v.
    ANTHONY EDWARD GANDY,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los
    Angeles County, Candace J. Beason, Judge. Affirmed.
    Sunnie L. Daniels, under appointment by the Court of
    Appeal, for Defendant and Appellant.
    Kamala D. Harris, Attorney General, Gerald A. Engler,
    Chief Assistant Attorney General, Lance E. Winters, Assistant
    Attorney General, Shawn McGahey Webb and Blythe J. Leszkay,
    Deputy Attorneys General, for Plaintiff and Respondent.
    _____________________________
    Defendant Anthony Edward Gandy appeals following his
    no contest plea, in which he admitted a prior strike (Pen. Code, §§
    1
    667, subds. (b)-(i), 1170.12, subd. (a)-(d)) based on three out-of-
    state felony convictions. Before he entered his plea, defendant
    moved to dismiss his prior felony convictions, which resulted from
    his no contest plea in 2001 to burglary and robbery charges in
    Oregon, on the ground that those convictions were obtained in
    2
    violation of his constitutional rights under Boykin-Tahl.
    Defendant contends he did not voluntarily and intelligently
    waive his Boykin-Tahl rights (the right to a jury trial, the right to
    confront witnesses, and the privilege against self-incrimination)
    when he pleaded no contest in the Oregon proceeding, and
    therefore the prior convictions cannot be used to enhance his
    sentence in this case. However, defendant may not collaterally
    attack a prior out-of-state conviction without demonstrating that
    “Tahl-like requirements operated in the jurisdiction at the time
    of the plea.” (People v. Green (2000) 
    81 Cal. App. 4th 463
    , 471
    (Green).) Defendant did not meet this burden. We also find that
    his plea was voluntary and intelligent under the totality of the
    circumstances. We therefore affirm.
    FACTUAL AND PROCEDURAL SUMMARY
    The Los Angeles District Attorney charged defendant by
    information in December 2011 with seven counts: dissuading a
    witness by force or threat (§ 136.1, subd. (c)(1); count 1), assault
    with a semiautomatic firearm (§ 245, subd. (b); count 2),
    possession of a firearm by a felon (§ 12021, subd. (a)(1); count 3),
    1
    Undesignated section references are to the Penal Code.
    2
    Boykin v. Alabama (1969) 
    395 U.S. 238
    (Boykin); In re Tahl
    (1969) 
    1 Cal. 3d 122
    (Tahl).
    2
    possession of ammunition (§ 12316, subd. (b)(1); count 4), sale
    and transportation of a controlled substance (Health & Saf. Code,
    § 11379, subd. (a); count 5), possession for sale of a controlled
    substance (Health & Saf. Code, § 11378; count 6), and leaving the
    scene of an accident (Veh. Code, § 20001, subd. (a); count 7).
    Three prior felony convictions were alleged as strikes (§§ 667,
    subds. (b)-(i), 1170.12, subd. (a)-(d)) and as prior serious felonies
    (§ 667, subd. (a)(1)). Enhancements for personal use of a firearm
    also were alleged. (§§ 665, subd. (c), 1192.7, subd. (c), 12022.5,
    subd. (a).) Defendant pleaded not guilty and denied the special
    allegations.
    In April 2012, defendant moved to dismiss the alleged prior
    felony convictions, which resulted from his no contest plea to two
    counts of burglary and one count of robbery before an Oregon
    court in 2001. He argued the prior convictions could not be used
    to enhance his sentence because he had not been expressly
    advised of nor waived his rights, as required by Boykin-Tahl and
    Oregon law. He cited the relevant Oregon statute, which
    provides: “‘(1) The court shall not accept a plea of guilty or no
    contest . . . without first addressing the defendant personally and
    determining that the defendant understands the nature of the
    charge. [¶] (2) The court shall inform the defendant: (a) That by
    a plea of guilty or no contest the defendant waives the right: [¶]
    [(A)] To trial by jury; [¶] [(B)] Of confrontation; and [¶] [(C)]
    Against self-incrimination.” (Or. Rev. Stat. § 135.385.) As
    exhibits to his motion to dismiss, defendant attached the Oregon
    superseding indictment, his signed plea petition, a transcript of
    the plea and sentencing hearing, and his own declaration.
    The plea petition was a two-page form including half a page
    for defense counsel’s certification. Paragraph 6 stated: “I
    3
    understand that I am not required to plead guilty or no contest
    and may plead not guilty if I choose. If I plead not guilty, I
    understand I am entitled to a speedy trial before a jury of my
    peers; . . . that I have an absolute right to confront any witness
    that would testify against me and cross examine such witness;
    [and] that I need not take the witness stand or give any
    testimony against myself.” Paragraph 11 stated: “I have taken
    no drink nor anything else which would in any way [impair] my
    judgment at this time, and I feel th[at] I am now fully alert and
    that in executing this petition I am doing so knowingly and
    voluntarily.” Defendant signed and dated the petition. His
    attorney certified that he believed “the statements,
    representations and declarations made by Defendant in the
    foregoing petition are in all respects accurate and true.” His
    attorney also certified “[t]hat in my opinion the Defendant’s plea
    is voluntarily and understandingly made.”
    The transcript of the plea and sentencing hearing indicates
    that the Oregon trial court had ratified a plea bargain agreement
    and defendant tendered the plea petition. The transcript
    includes the following colloquy:
    Judge: Mr. Gandy uh, I see that you and Mr. Bain
    [defense counsel] have both signed this written
    plea petition. Did you in fact sign this on
    November the 14th?
    Gandy: Yes sir.
    Judge: Did you have a chance to read through it
    carefully and discuss it with Mr. Bain before
    you signed it[?]
    4
    Gandy: Yes I did.
    Judge: Any questions about what it says or what you
    are giving up by entering this plea?
    Gandy: No.
    In his declaration dated March 5, 2012, defendant stated that his
    attorney in Oregon told him to sign the plea petition, did not read
    each word and paragraph to him, never specifically advised him
    of paragraph 6, and never advised him that he was waving his
    right to a jury trial, the right to confront witnesses, and the
    privilege against self-incrimination when he pleaded guilty.
    In June 2012, the California trial court held a hearing on
    defendant’s motion to dismiss the prior convictions. The
    prosecutor argued that the Boykin-Tahl requirements were
    satisfied because the plea petition advised defendant of his
    constitutional rights and included his acknowledgment that the
    plea was executed “knowingly and voluntarily.” Defense counsel
    countered that the plea petition failed to specify which rights
    defendant was waiving; and defendant did not expressly waive
    his Boykin-Tahl rights when entering his plea in open court. The
    trial court took the matter under submission.
    The court issued a minute order several days later denying
    defendant’s motion. The court reasoned: “Although Gandy
    received incomplete Boykin/Tahl advisement in his Oregon case
    according to the standard set in [People v. Mosby (2004) 
    33 Cal. 4th 353
    (Mosby)] due to the lack of clear and on the record
    enumeration of his rights, the California Supreme Court has held
    in [Garcia v. Superior Court (1997) 
    14 Cal. 4th 953
    , 966 (Garcia)]
    that a motion to dismiss due to the defense counsels’ [sic]
    ineffective advice should not be granted where a defendant faces
    5
    current prosecution with a noncapital offense. In this instance,
    the case law supports denying defendant’s motion to dismiss
    prior convictions.”
    In August 2014, the district attorney filed an amended
    information, which added an eighth count for possession of a
    controlled substance with a firearm (Health & Saf. Code,
    § 11370.1, subd. (a)). Defendant withdrew his plea of not guilty
    as to counts two and six pursuant to a plea agreement. He
    entered a no contest plea, and admitted that he had personally
    used a firearm (§ 12022.5, subd. (a)) and previously had been
    convicted of one prior strike (§§ 667, subds. (b)-(i), 1170.12, subd.
    (a)-(d)).
    Defendant was sentenced in May 2015 to a total term of 17
    years and four months in state prison. He filed a notice of appeal
    and request for a certificate of probable cause, which the trial
    court granted.
    DISCUSSION
    Defendant contends the trial court erred when it denied his
    motion to dismiss the prior out-of-state convictions under Garcia
    even though the court found he did not receive adequate Boykin-
    Tahl advisements. He notes that the trial court misconstrued his
    motion as raising a claim of ineffective assistance of counsel,
    when in fact the motion was solely based on an alleged Boykin-
    Tahl violation. The People agree that the court erred because
    defendant never asserted ineffective assistance of counsel, but
    maintain the judgment should be affirmed because defendant’s
    plea was voluntary and intelligent under the totality of the
    circumstances.
    Although the trial court erroneously denied the motion
    under 
    Garcia, supra
    , 
    14 Cal. 4th 953
    , the court’s ultimate ruling
    6
    was correct and will be affirmed. (See People v. Smithey (1999)
    
    20 Cal. 4th 936
    , 972 [a ruling will not be disturbed on appeal
    merely because it was given for a wrong reason; it must be
    sustained if correct under any applicable theory].) Here,
    defendant may not collaterally attack his prior out-of-state
    conviction because he did not demonstrate that “Tahl-like
    requirements” operated in Oregon at the time of the plea. 
    (Green, supra
    , 81 Cal.App.4th at p. 471.) Even considering defendant’s
    challenge on the merits, the record affirmatively shows that his
    plea was voluntary and intelligent under the totality of the
    circumstances. (People v. Howard (1992) 
    1 Cal. 4th 1132
    , 1177-
    1178 (Howard).)
    I
    “In [Boykin] the United States Supreme Court determined
    that a defendant who pled guilty could attack the ensuing
    conviction on the ground the record did not affirmatively
    establish a knowing and intelligent waiver of certain
    constitutional rights—the right to a jury trial, the right to
    confront witnesses, and the privilege against self-incrimination.
    [Citation.] Just months later, the California Supreme Court
    addressed the same issue in [Tahl]. Again, the defendant alleged
    his guilty plea was not made voluntarily or with a complete
    understanding of its consequences. The Tahl court, bound by
    Boykin, set forth the additional requirement that the record
    clearly state that the defendant specifically and expressly waived
    each of the three enumerated constitutional rights. [Citation.]
    Both Tahl and Boykin involved direct challenges on an appeal
    from the contested conviction.” 
    (Green, supra
    , 81 Cal.App.4th at
    p. 466.)
    “In People v. Sumstine (1984) 
    36 Cal. 3d 909
    [(Sumstine)],
    7
    the California Supreme Court considered whether a defendant,
    whose sentence was subject to enhancement by a prior conviction,
    was permitted to attack collaterally the validity of that conviction
    on Boykin/Tahl grounds. The court answered affirmatively,
    deciding that a defendant could question a prior conviction on
    any constitutional ground, including a Boykin/Tahl violation.”
    
    (Green, supra
    , 81 Cal.App.4th at pp. 466-467.) “Sumstine
    directed trial courts to follow the following procedure: When a
    defendant makes sufficient allegations that his conviction, by
    plea, in the prior felony proceedings was obtained in violation of
    his constitutional Boykin-Tahl rights, the trial court must hold
    an evidentiary hearing. At the hearing, the prosecution bears the
    initial burden of producing evidence that the defendant did
    indeed suffer the conviction. The defendant must then produce
    evidence to demonstrate his Boykin-Tahl rights were infringed.
    The prosecution then has the right to rebuttal, at which point
    reliance on a silent record will not be sufficient. [Citations.]”
    (People v. Allen (1999) 
    21 Cal. 4th 424
    , 435 (Allen).)
    The decision in Sumstine was grounded on policy
    considerations favoring efficiency: “Previously we had allowed a
    defendant to challenge a prior by seeking a writ of habeas corpus
    after a final judgment in which the prior had been used to
    enhance his sentence. [Citations.] But in Coffey we decided that
    ‘it is clearly in the interest of efficient judicial administration
    that attacks upon the constitutional basis of prior convictions be
    disposed of at the earliest possible opportunity, and we are
    therefore of the view that, if the issue is properly raised at or
    prior to trial, it must be determined by the trial court.’”
    
    (Sumstine, supra
    , 36 Cal.3d at p. 920, quoting People v. Coffey
    (1967) 
    67 Cal. 2d 204
    , 215, italics omitted.)
    8
    In 
    Howard, supra
    , 1 Cal.4th at page 1175, the California
    Supreme Court recognized that explicit admonitions and waivers
    of each of the three Boykin-Tahl rights are not required as a
    matter of federal constitutional law. The court adopted the
    federal test for validity, under which “a plea is valid if the record
    affirmatively shows that it is voluntary and intelligent under the
    totality of the circumstances. [Citations.]” (Howard, at p. 1175.)
    The court also held that in the exercise of its supervisory powers
    it would “continue to require that trial courts expressly advise
    defendants on the record of their Boykin/Tahl rights. However,
    errors in the articulation and waiver of those rights shall require
    the plea to be set aside only if the plea fails the federal test.”
    (Howard, at p. 1175.)
    A defendant’s ability to collaterally attack a prior
    conviction under Sumstine was called into question by the United
    States Supreme Court decision in Custis v. United States (1994)
    
    511 U.S. 485
    (Custis), which involved a challenge to the
    defendant’s prior state conviction based on a claim of ineffective
    assistance of counsel. The court held that the right to collaterally
    attack prior convictions used for sentence enhancement purposes
    cannot be extended beyond the right to have appointed counsel
    established under Gideon v. Wainwright (1963) 
    372 U.S. 335
    .
    (Custis, at p. 496.) The decision was based on the unique
    significance of depriving an indigent defendant of appointed
    counsel, the ease in determining from the record whether a
    failure to appoint counsel occurred, and the interest in promoting
    the finality of judgments. (Id. at pp. 494-497.)
    Three years later, in Garcia, the California Supreme Court
    followed Custis in holding that “a criminal defendant may not
    challenge a prior conviction on the ground of ineffective
    9
    assistance of counsel in the course of a current prosecution for a
    noncapital offense.” (
    Garcia, supra
    , 14 Cal.4th at p. 956.) The
    court articulated several policy considerations to support its
    decision: “Such a claim [of ineffective assistance of counsel] often
    will necessitate a factual investigation with regard to counsel’s
    actions, omissions, and strategic decisions, requiring the parties
    and the court to reconstruct events possibly remote in time, and
    to scour potentially voluminous records, substantially delaying
    the proceedings related to the current offense.” (Id. at p. 965.)
    The court distinguished Sumstine as that case did not involve a
    challenge to a prior conviction based on ineffective assistance of
    counsel. (Garcia, at p. 964.)
    In 
    Allen, supra
    , 
    21 Cal. 4th 424
    , the California Supreme
    Court revisited Sumstine in light of Custis and Garcia, and held
    that Sumstine continues to allow a defendant to collaterally
    attack a prior conviction on Boykin-Tahl grounds unless the
    underlying plea preceded the decision in Tahl. (Allen, at p. 443.)
    The court noted that Sumstine was not based on “constitutional
    imperatives,” but on the policy judgment that it is more efficient
    to hear a collateral attack on a prior conviction at trial rather
    than wait for a later challenge on habeas corpus. (Allen, at
    p. 435.) The court reasoned that Sumstine remains an efficient
    procedural rule as applied to post-Tahl guilty pleas, where “the
    record of the hearing in which the trial court accepted the
    defendant’s plea should clearly demonstrate the defendant was
    told of his rights and that he affirmatively waived them.” (Allen,
    at p. 442.) This efficiency rationale does not apply to pre-Tahl
    guilty pleas where the record is unlikely to clearly demonstrate
    whether the defendant was aware of and voluntarily waived his
    rights before pleading. (Allen, at p. 443.) The court accordingly
    10
    held “that motions to strike prior felony convictions on Boykin-
    Tahl grounds are limited to post-Tahl guilty pleas.” (Allen, at
    p. 443.)
    The majority in Allen expressly declined to decide whether
    Sumstine permits a defendant to collaterally attack a prior out-
    of-state conviction. (
    Allen, supra
    , 21 Cal.4th at p. 443 & fn. 7.)
    However, Justice Baxter provided guidance in his concurring
    opinion: “The majority acknowledge that the Sumstine rule, as
    applied to Boykin-Tahl issues, is tolerable only insofar as we can
    expect the record of the challenged prior guilty plea readily to
    show, on its face, that the defendant knew and waived his rights.
    For this reason, only priors governed by Tahl’s requirement of
    express admonitions and waivers may be the subject of a
    Sumstine motion. Just as this principle eliminates Boykin-Tahl
    challenges to California priors that predate Tahl, so must
    Boykin-Tahl challenges to non-California priors be excluded,
    except where it appears beyond doubt that the guilty pleas
    underlying such convictions were subject, under the law of the
    convicting jurisdictions, to Tahl-like procedural formalities.” (Id.
    at p. 447 (conc. opn. of Baxter, J.) italics omitted.)
    In Green, the Fifth District Court of Appeal followed
    Justice Baxter’s concurrence in Allen in holding that “a defendant
    may not collaterally attack a prior out-of-state conviction unless
    there is evidence that Tahl-like requirements operated in the
    jurisdiction at the time of the plea.” 
    (Green, supra
    , 81
    Cal.App.4th at pp. 470-471.) The court explained that “if a Tahl-
    like policy of requiring preplea advisements and waivers on the
    record was in effect in the state court where the plea was taken,
    we will allow a collateral attack on the ensuing conviction. If no
    such policy operated at the time or place of the prior plea, in the
    11
    interests of finality of judgments recognized in Custis and judicial
    efficiency, we will not allow collateral challenges to the
    subsequent conviction.” (Id. at p. 471.)
    II
    Following Green, the issue before us is whether defendant
    satisfied his burden of presenting evidence that, under Oregon
    law, his plea was subject to procedures corresponding to
    California’s Tahl requirements. Defendant maintains he
    satisfied this burden by citing Oregon Revised Statute section
    135.385.
    The Oregon statute codifies Boykin by requiring the trial
    court to inform the defendant that, by pleading guilty or no
    contest, the defendant waives the right to a jury trial, the right to
    confront witnesses, and the privilege against self-incrimination.
    (See Or. Rev. Stat. § 135.385(2); see also Stelts v. State (1985) 
    299 Or. 252
    [
    701 P.2d 1047
    ]; Lyons v. Pearce (1985) 
    298 Or. 544
    [
    694 P.2d 969
    ].) However, unlike California’s Tahl procedure, the
    Oregon statute has not been interpreted to require express, on-
    the-record admonitions and waiver of rights.
    In Cruz v. Cupp (1986) 78 Or.App. 303, 305 [
    716 P.2d 770
    ,
    771] (Cruz), the petitioner “challenged [his] conviction on the
    ground that the trial court did not orally advise him of the
    consequences of the plea.” He argued that the “[trial] court is
    required to address him personally on each matter contained in
    ORS 135.385(2),” that is, that by pleading no contest he waived
    the right to a jury trial, the right to confront witnesses, and the
    privilege against self-incrimination. (716 P.2d at p. 771.) The
    court disagreed, finding that “[t]he trial court’s duty to inform
    petitioner of the matters contained in ORS 135.385(2) was
    satisfied by the written plea petition, which contained the
    12
    information required by ORS 135.385(2). Trial counsel advised
    the court that he had explained the plea petition to petitioner and
    that petitioner had read and understood it before signing it.
    Accordingly, the court ascertained that petitioner had the
    information to which he was entitled under ORS 135.385(2).”
    (716 P.2d at p. 771, citing Lyons v. 
    Pearce, supra
    , 694 P.2d at p.
    974.)
    Cruz establishes that under Oregon law a trial court may
    rely on a written plea petition setting forth the Boykin
    advisements and certification by defense counsel that defendant
    read and understood the document before signing it. Oregon
    courts are not required to expressly advise a defendant of his
    Boykin rights and obtain his waiver on the record. (Cf. 
    Tahl, supra
    , 1 Cal.3d at p. 132; 
    Howard, supra
    , 1 Cal.4th at p. 1175.)
    We therefore find that defendant failed to present evidence that
    “Tahl-like” requirements operated in Oregon at the time of his no
    contest plea, and accordingly he cannot collaterally attack the
    prior convictions through a pretrial motion to dismiss. 
    (Green, supra
    , 81 Cal.App.4th at pp. 470-471.)
    III
    Even if we were to consider defendant’s collateral attack on
    the prior Oregon convictions, we would find that his prior no
    contest plea was constitutionally valid. Under the applicable
    federal test, “the record [must] affirmatively [demonstrate] that
    [the plea was] voluntary and intelligent under the totality of the
    circumstances.” (
    Howard, supra
    , 1 Cal.4th at p. 1175, citing
    North Carolina v. Alford (1970) 
    400 U.S. 25
    , 31 [“[t]he standard
    was and remains whether the plea represents a voluntary and
    intelligent choice among the alternative courses of action open to
    the defendant”]; Brady v. United States (1970) 
    397 U.S. 742
    , 747,
    13
    fn. 4 [“the record must affirmatively disclose that a defendant
    who pleaded guilty entered his plea understandingly and
    voluntarily”].)
    The totality of the circumstances here shows that
    defendant voluntarily and intelligently pleaded no contest in the
    Oregon proceeding. Defendant signed a plea petition, which
    advised him that he had the choice of pleading not guilty, and
    would accordingly be afforded the right to a jury trial, the right to
    confront witnesses, and the privilege against self-incrimination.
    Defendant also acknowledged in signing the document that he
    was executing his plea “knowingly and voluntarily.” Defense
    counsel certified that “[d]efendant’s plea is voluntarily and
    understandingly made.” When defendant appeared in court, the
    trial judge asked whether he had “a chance to read through it
    carefully and discuss it with [defense counsel] before [he] signed
    it.” Defendant responded affirmatively. When asked whether he
    had “[a]ny questions about what it says or what [he was] giving
    up by entering this plea,” defendant said he did not.
    Defendant contends that his plea was not voluntary and
    intelligent because nothing in the record demonstrates that he
    was aware of and understood that he would be waiving his
    Boykin rights. He argues that the plea petition was insufficient
    because it advised him of the rights to which he was entitled if he
    pleaded not guilty, but did not expressly state that he was
    waiving those rights by pleading guilty or no contest. He also
    contends the trial judge’s “vague” questioning during the plea
    colloquy fell short of affirmatively showing that defendant knew
    precisely what he was giving up. Defendant points to his
    declaration, which states that neither defense counsel nor the
    trial judge ever expressly advised him of his rights and the fact
    14
    that he was waiving them by entering his plea.
    Although were we to argue that the record does not
    affirmatively demonstrate that defendant expressly waived his
    Boykin rights, his plea may still be upheld as constitutioanlly
    valid under the totality of the circumstances. (See, e.g., 
    Mosby, supra
    , 33 Cal.4th at pp. 364-365 [defendant voluntarily and
    intelligently admitted his prior conviction despite being advised
    of and having waived only his right to jury trial]; 
    Howard, supra
    ,
    1 Cal.4th at p. 1180 [defendant’s admission of a prior prison term
    was voluntary and intelligent despite the absence of an express
    waiver of the privilege against self-incrimination]; People v.
    Sovereign (1993) 
    27 Cal. App. 4th 317
    , 321 [defendant’s plea was
    voluntary and intelligent despite the absence of an explicit
    admonition and waiver by defendant of his right to a jury trial].)
    We find the language of the plea petition to be sufficiently
    clear to inform defendant that he agreed to waive his rights by
    entering a plea of no contest. Defendant does not claim that he
    did not or could not read or understand the plea petition. In fact,
    he confirmed to the trial judge that he had read the document
    carefully and had discussed it with defense counsel before signing
    it. Under the totality of these circumstances, we conclude that
    defendant’s plea was voluntary and intelligent and therefore his
    prior convictions were constitutionally valid. (See 
    Howard, supra
    , 1 Cal. 4th at p. 1175.) The trial court’s decision denying
    defendant’s motion to dismiss was ultimately correct, and the
    prior conviction was properly used to enhance his sentence.
    15
    DISPOSITION
    The judgment is affirmed.
    CERTIFIED FOR PUBLICATION.
    EPSTEIN, P. J.
    We concur:
    MANELLA, J.
    COLLINS, J.
    16