The overwhelming majority of criminal convictions occur by the entry of a guilty or no contest plea.  The law has established certain well-defined standards to be applied in determining the validity of a conviction which resulted from a guilty or no contest plea.  Basically, any guilty or no contest plea must be made voluntarily and intelligently, with a knowledge of the fundamental constitutional rights involved and the direct penal consequences of the guilty plea, and the defendant’s expressed desire to waive his or her constitutional rights.[1]

 

            The law is clear that a defendant’s guilty plea is unconstitutional as involuntary and unintelligent where the defendant did not express an intelligent waiver of his or her fundamental constitutional rights unless the record demonstrates in the totality of the circumstances that the defendant was nevertheless aware of those rights.[2]  A defendant who raises a Rule 11 error for the first time on appeal may obtain reversal predicated upon the violation only by showing that there was plain error.[3]  Under Fed.R.Crim.P. 52(b), a plain error is one that affects the substantial rights of the defendant. 

 

            If the defendant’s lack of waivers renders the previous guilty or no contest plea unintelligent or involuntary, the conviction must be reversed.  On the other hand, if the entire record of the prior proceedings demonstrates that client was in fact aware of these rights, despite the lack of advisement and waiver, the plea may stand.

 

            The totality of circumstances must demonstrate the defendant’s knowing and voluntary waiver of the applicable constitutional rights.[4]  “[W]aivers of constitutional rights must, of course, be ‘knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.’ [Citation.]”[5]  A reviewing court cannot simply presume such waivers from a silent record; the record itself, or other evidence, must show an intelligent and knowing act by the defendant.[6]  A waiver of rights must be based upon something more than speculation.[7]  The court must make a finding on the record that a guilty plea was made knowingly and intelligently.  This means that the court must formally state its conclusion on the record.[8]  The judge, however, does not need to announce his or her finding; it is sufficient if the docket states that the court found the waiver to have been “knowingly, intelligently, and understandingly made . . . .”[9] 

 

            Many of these requirements apply as well to the “slow plea” situation, in which the defendant waives the rights to jury trial, confrontation, and against self-incrimination, and stipulates that the court may decide guilt or innocence on the basis of stipulated facts, the offense report, or the preliminary hearing transcript.

The U.S. Supreme Court granted the defendant’s habeas corpus petition because his “prima facie” trial was equivalent to a guilty plea and had been obtained without his waiver of confrontation and self-incrimination.[10]

 

            In California, the courts have specifically held that the Boykin-Tahl requirements apply to a proceeding in which rights are waived under circumstances in which the court will find the defendant guilty of a criminal offense, i.e., where the proceedings are tantamount to a guilty plea.[11]  If the procedure used is the equivalent to a plea of guilty, the failure to obtain knowing and voluntary waivers requires reversal per se.[12]

[1] Boykin v. Alabama, 395 U.S. 238 (1969); In re Tahl (1969) 1 Cal.3d 122; People v. Howard (1992) 1 Cal.4th 1132, 1174-1180.

[2] Boykin v. Alabama, 395 U.S. 238, 242-244 (1969); In re Tahl (1960) 1 Cal.3d 122, 132; People v. Howard (1992) 1 Cal.4th 1132, 1174-1180.

[3] United States v. Vonn,  535 U.S. 55, 58 (2002); United States v. Ma, 290 F.3d 1002 (9th Cir. 2002)(failure of trial court personally to ensure that defendant knowingly waived right to appeal in violation of Fed.R.Crim.P. 11(c)(6) not plain error).

[4] People v. Vickers (1972) 8 Cal.3d 451, 457-58; see In re Moss (1985) 175 Cal.App. 3d 913, 929-30 (a printed waiver form is an insufficient waiver of the due process rights applicable at a probation revocation hearing).

[5] People v. Mroczko (1983) 35 Cal.3d 86, 110, 197 Cal.Rptr. 52, 672 P.2d 835.

[6] Carnley v. Cochran, 369 U.S. 506, 515-516, 8 L.Ed.2d 70, 76-77, 82 S.Ct. 884 (1962); In re Johnson (1965) 62 Cal.2d 325, 334, 42 Cal.Rptr. 228, 398 P.2d 420.

[7] In re Sutherland (1972) 6 Cal.3d 666, 671, 100 Cal.Rptr. 129, 493 P.2d 857.

[8] In re Johnson (1965) 62 Cal.2d 325, 42 Cal.Rptr. 228; People v. Garcia (1979) 98 Cal.App.3d Supp. 14, 159 Cal.Rptr. at 489.

[9] Ibid., 98 Cal.App.3d Supp. At 17, 159 Cal.Rptr. at 489.

[10] Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245 (1966).

[11] People v. Rogers (1961) 56 Cal.2d 301, 14 Cal.Rptr. 660; People v. Gray (1982) 135 Cal.App.3d 859, 185 Cal.Rptr. 772; People v. Huynh (1991) 229 Cal.App.3d 1067, 281 Cal.Rptr. 785; see In re Steven H. (1982) 130 Cal.App.3d 449, 181 Cal.Rptr. 719; People v. Drieslein (1985) 170 Cal.App.3d 591, 216 Cal.Rptr. 244.

[12] People v. Wright (1987) 43 Cal.3d 487, 492, 233 Cal.Rptr. 69, 71; People v. Huynh (1991) 229 Cal.App.3d 1067, 1078, 281 Cal.Rptr. 785, 792.       

POST CON RELIEF " GROUNDS " READABILITY
Sixth District published In re E.O. (2010) 188 Cal.App.4th 1149 (probation condition restricting the minor's freedom to approach or enter a courthouse was unconstitutionally vague.) In making its point, the court stressed the need for precise and comprehensible probation conditions - especially in juvenile cases. The court analyzed the text of the probation condition in question using an "online readability tester" which showed it would take over 28 years of education to comprehend the condition as written. (Id. at p. 1157.) Courts rule that the defendant was advised of a right, orally or in a prepared form, and that he/she thereafter acknowledged the right and waived it. But in many cases, these advisements are prepared using complicated text that an average person, much less a criminal defendant in a time of high anxiety, would find difficult to comprehend. Readability tests are designed to measure comprehension difficulty when reading a passage of contemporary English. One test, the Flesch-Kinkaid Grade Level test, indicates the number of years of education a person needs to be able to understand the text easily, after the first reading. The fairly recent CALCRIM jury instructions were a product of a task force appointed by Chief Justice George after a study revealed that jurors could not understand and therefore properly apply the earlier standard instructions as written. Now Supreme Justice Corrigan in her Preface to CALCRIM acknowledged the earlier instructions were "impenetrable" and a product of statutes and case law written by and for a specialized legal audience and expressed in terms of art that have evolved over several centuries. She emphasized that jurors must be able to understand the instructions they are asked to follow, and the instructions should be drafted in a way that takes the audience into account. The same is certainly true of legal advisements given to criminal defendants, and yet in many cases, the text is almost incomprehensible to regular people charged with crimes. For example, the Penal Code section 1016.5 advisal given before a guilty plea explains the immigration consequences of the conviction in text the Flesh Kinkaid readability study shows would require over 23 years of education - the equivalent of a graduate degree. Very few people advised of that right before pleading guilty probably understood it but it is routinely used against defendants seeking to withdraw pleas based on a claim that they were unaware of the consequences. The Lopez waiver form used in many courts to advise potential pro per defendants of the dangers of self-representation requires almost 13 years of education according to the Flesch-Kinkaid test. The Penal Code section 977 waiver of presence advisement requires over 28 years of education to understand a form that simply needs to say "I don't need to be present for these proceedings." Compare this with the standard Miranda advisement which requires only a 6th grade education and was suggested by a court that was genuinely concerned that the suspect understand the warning. Our clients' cognitive levels can be easily tested by a psychologist, and the results of this testing can be measured against the readability studies to show they did not understand a particular advisement. Counsel should be on the lookout for opportunities to make use of the readability studies as the court did in In re E.O. Thanks to Pat Ford.

Lower Courts of Ninth Circuit

CAL POST CON " GROUNDS " INADEQUATE WAIVER OF TRIAL RIGHTS
People v. Lloyd, 236 Cal.App.4th 49, 186 Cal.Rptr.3d 245 (4th Dist. Apr. 21, 2015) (reversing admission of prior conviction for Yurko error, where defendant was not expressly advised of his or her trial rights " the rights to trial, to confrontation, and to remain silent; the record does not show defendant was aware of or intended to waive these rights and does not permit the inference that defendant was sufficiently aware of the trial procedures to show that his current waiver was knowing and intelligent).

CAL POST CON " GROUNDS " FAILURE TO OBTAIN KNOWING AND INTELLIGENT WAIVER OF RIGHTS
People v. Lloyd, ___ Cal.App.4th ___, ___ Cal.Rptr.3d ___, 2015 WL 1804472 (4th Dist. Apr. 21, 2015) (trial court failed to obtain knowing and intelligent waiver of rights of confrontation and silence prior to defendant's admission of prior convictions, where the last time the defendant had been advised trial rights was at arraignment almost 15 months earlier).

Other

POST CON RELIEF " GROUNDS " READABILITY
Sixth District published In re E.O. (2010) 188 Cal.App.4th 1149 (probation condition restricting the minor's freedom to approach or enter a courthouse was unconstitutionally vague.) In making its point, the court stressed the need for precise and comprehensible probation conditions - especially in juvenile cases. The court analyzed the text of the probation condition in question using an "online readability tester" which showed it would take over 28 years of education to comprehend the condition as written. (Id. at p. 1157.) Courts rule that the defendant was advised of a right, orally or in a prepared form, and that he/she thereafter acknowledged the right and waived it. But in many cases, these advisements are prepared using complicated text that an average person, much less a criminal defendant in a time of high anxiety, would find difficult to comprehend. Readability tests are designed to measure comprehension difficulty when reading a passage of contemporary English. One test, the Flesch-Kinkaid Grade Level test, indicates the number of years of education a person needs to be able to understand the text easily, after the first reading. The fairly recent CALCRIM jury instructions were a product of a task force appointed by Chief Justice George after a study revealed that jurors could not understand and therefore properly apply the earlier standard instructions as written. Now Supreme Justice Corrigan in her Preface to CALCRIM acknowledged the earlier instructions were "impenetrable" and a product of statutes and case law written by and for a specialized legal audience and expressed in terms of art that have evolved over several centuries. She emphasized that jurors must be able to understand the instructions they are asked to follow, and the instructions should be drafted in a way that takes the audience into account. The same is certainly true of legal advisements given to criminal defendants, and yet in many cases, the text is almost incomprehensible to regular people charged with crimes. For example, the Penal Code section 1016.5 advisal given before a guilty plea explains the immigration consequences of the conviction in text the Flesh Kinkaid readability study shows would require over 23 years of education - the equivalent of a graduate degree. Very few people advised of that right before pleading guilty probably understood it but it is routinely used against defendants seeking to withdraw pleas based on a claim that they were unaware of the consequences. The Lopez waiver form used in many courts to advise potential pro per defendants of the dangers of self-representation requires almost 13 years of education according to the Flesch-Kinkaid test. The Penal Code section 977 waiver of presence advisement requires over 28 years of education to understand a form that simply needs to say "I don't need to be present for these proceedings." Compare this with the standard Miranda advisement which requires only a 6th grade education and was suggested by a court that was genuinely concerned that the suspect understand the warning. Our clients' cognitive levels can be easily tested by a psychologist, and the results of this testing can be measured against the readability studies to show they did not understand a particular advisement. Counsel should be on the lookout for opportunities to make use of the readability studies as the court did in In re E.O. Thanks to Pat Ford.