People v. Knight

Opinion

SIMS, Acting P. J.

As pertinent, defendant Booker Thomas Knight was charged by information with violation of Health and Safety Code section 11350, subdivision (a) (possession of a controlled substance).

Defendant agreed to submit his guilt or innocence to the court on the basis of the transcript of the preliminary hearing. The trial court found defendant guilty as charged.

On appeal, defendant first contends the trial court did not adequately advise him of his right against self-incrimination.

Where submission upon the preliminary hearing transcript is tantamount to a plea of guilty, a defendant must be advised he is giving up his right against self-incrimination.

(People

v.

Levey

(1973) 8 Cal.3d 648, 652 [105 Cal.Rptr. 516, 504 P.2d 452]; see

People

v.

Wright

(1987) 43 Cal.3d 487, 493 [233 Cal.Rptr. 69, 729 P.2d 260];

Bunnell

v.

Superior Court

(1975) 13 Cal.3d 592, 605 [119 Cal.Rptr. 302, 531 P.2d 1086].) Here, the trial court found the submission was tantamount to a plea of guilty and the People properly concede the submission was a “slow plea.”

Defendant was not expressly advised he would be waiving his right against self-incrimination by submitting the case upon the transcript.

In 1973 in

People

v.

Levey, supra,

8 Cal.3d at page 654, the failure to obtain an express waiver of a defendant’s right against self-incrimination was held to be reversible per se. Recently, however, in

People

v.

Howard

(1992) 1 Cal.4th 1132 [5 Cal.Rptr.2d 268, 824 P.2d 1315], our Supreme Court has held that the failure to advise and obtain an express waiver of the right against self-incrimination, in connection with the admission of a prior conviction, is not reversible per se. Rather, the failure “should be reviewed