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
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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
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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[?]
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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
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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
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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)],
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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
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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
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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.
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DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
EPSTEIN, P. J.
We concur:
MANELLA, J.
COLLINS, J.
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