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Waivers, Advisements, and the Totality of the Circumstances

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In Boykin v. Alabama (1969), the U.S. Supreme Court declared, " It was error, plain on the face of the record, for the trial judge to accept petitioner's guilty plea without an affirmative showing that it was intelligent and voluntary."  That "plain on the face of the record" language was necessary because the defendant had not preserved a claim of error on this point.

The California Supreme Court quickly pounced on Boykin and elevated its references to the record into a mandate of ritual.  Acknowledging that Boykin could be interpreted as either requiring that a voluntary and intelligent waiver be fairly discernible from the record or that a strict ritual was required in every case, Justice Stanley Mosk's opinion for the court went with the ritual in In re Tahl (1970).  Many years and personnel changes later, that court corrected itself in People v. Howard (1992), holding that the record is sufficient if it "affirmatively shows that it is voluntary and intelligent under the totality of the circumstances."

The rule applies to stipulations to all the elements of a crime as well as guilty pleas (as there is little difference in practice), and until today there was some disagreement as to whether the "totality" rule applied only to cases where the Boykin-Tahl admonitions (as they are known in California) are incomplete or also to those where they are missing altogether.

That question was answered today in a vehicular homicide case, People v. Farwell, No. S231009.  In the Court of Appeal, the majority applied the totality test, but dissenting Justice Richard Mosk thought that People v. Mosby (2004) made that rule inapplicable to "silent record" cases.  CJLF filed an amicus brief, written by Kym Stapleton, to support applying the totality rule.

"We hold that the totality of the circumstances test applies in silent record cases as well," the unanimous opinion by Justice Corrigan says.  "As amicus curiae Criminal Justice Legal Foundation observes, '[r]ather than carving out a set of cases as being exempt from the Howard "totality of the circumstances" rule, Mosby is better understood as identifying a frequently occurring fact pattern that typically fails [to satisfy] the rule.' "  Two contrary Court of Appeal decisions are expressly disapproved.

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