Post-Conviction Relief for Immigrants

(A)  Voluntariness of Guilty Plea.  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 the client was in fact aware of these necessary 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.[280]  “[W]aivers of constitutional rights must, of course, be ‘knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.’ [Citation.]”[281]  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.[282]  A waiver of rights must be based upon something more than speculation.[283]  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.[284]  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 . . . .”[285] 

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

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

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

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

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

[285] People v. Garcia, 98 Cal.App.3d Supp. at 17, 159 Cal.Rptr. at 489.