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California Supreme Court Rules That Defense Counsel Can’t 
Agree to Stipulation That’s Tantamount to Guilty Plea Without Voluntary and Intelligent Waiver by Defendant

by Derek Gilna

The bedrock principle of criminal defense is to force the prosecution to prove its case against his client, but in the case of Randolph Farwell, his attorney agreed to a stipulation of facts that was tantamount to a guilty plea because it admitted each element of the charged crime. The record was silent whether Farwell “entered a constitutionally valid waiver of his trial rights,”  i.e., right to a jury trial, right to confront witnesses, and right against self-incrimination.  The Supreme Court of California reversed the California Court of Appeal’s judgment affirming the conviction.

Farwell had been charged with gross vehicular manslaughter as a felony in count 1 and, in count 2, a misdemeanor for driving on a suspended or revoked license. Prior to trial, defense counsel indicated that his client was considering a guilty plea to the misdemeanor.

The Supreme Court in its opinion observed that People v. Howard (1992) 1 Cal.4th 1132, “held that a plea is valid notwithstanding the lack of express advisements and waivers ‘if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.’” It also explained that the “Howard test” has generally been applied only to “incomplete” advisements but not to “silent records,” where there is no affirmative evidence that the defendant understood the proceedings or agreed to the stipulation. However, in the present case, the Court announced that the Howard test applies to both incomplete advisements as well as silent records.

The Court warned that silent record cases are “particularly troublesome in the context of stipulations that are tantamount to a guilty plea.” In such cases, like the present one, “the record must affirmatively demonstrate that the defendant understood the agreement [stipulation] effectively extinguished his trial rights.” 

The Court further explained that silent record cases “will face their own practice hurdle. The failure to advise a defendant of any trial rights will make it much harder to demonstrate a plea was properly accepted.” It reiterated that Howard requires that the record “affirmatively show” that the defendant’s waiver was “voluntary and intelligent.” 

Applying the foregoing principles to the present case, the Court ruled that the record is insufficient to determine whether Farwell voluntarily and intelligently waived his legal rights because there’s “no affirmative showing that Farwell understood he was waiving his trial rights by virtue of the stipulation entered on his behalf.” 

The Court appeared to be troubled by the sequence of events leading up to the stipulation: “After the People’s first witness, defense counsel asked to approach the bench for an unreported discussion, apparently without Farwell’s presence,” the Court recounted.  “Thereafter, the court simply read the stipulation into the record and informed the jury of its conclusive evidentiary effect. The court did not discuss the stipulation or its legal effect with Farwell. Nor did counsel confirm on the record that she had done so.”

Consequently, since “the record is insufficient to establish that Farwell entered into a constitutionally valid waiver of his trial rights, the stipulation having that effect must be set aside,” the Court concluded.  Accordingly, it reversed the Court of Appeal’s judgment affirming his conviction on count 2 and remanded for further proceedings consistent with this opinion. See: People v. Farwell, 419 P.3d 913 (Cal. 2018). 

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