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People v. Nettles1/26/2004
enalize those who voluntarily consume alcoholic beverages to the point of legal intoxication and thereafter operate a motor vehicle, thereby combining
sharply impaired physical and mental faculties with a vehicle capable of exerting great force and speed and causing severe damage and death' "].)
*5 But the failure to obtain Boykin-Tahl waivers does not require reversal if the record otherwise shows that the stipulation was " 'voluntary and intelligent under the totality of the circumstances.' " (People v. Allen (1999) 21 Cal.4th 424, 438 .)
Examining the record, we conclude defendant was aware of his constitutional rights related to the determination of his level of intoxication. First, the record contains defendant's express waiver of his right to testify; he plainly understood that the decision on whether to testify was his. Second, defendant made the stipulation while he was engaged in a jury trial, in which his counsel vigorously cross-examined all the witnesses who testified for the prosecution. We may infer from defendant's participation in the trial that he understood that, by stipulating that his blood-alcohol level exceeded 0.08 percent when he was driving, he was foregoing the opportunity to have the jury hear testimony on that issue, including testimony on cross-examination.
Finally, a brief exchange that occurred at some point following the stipulation illustrates defendant knew he had given up the right to a jury trial on its contents. Defense counsel indicated in colloquy that, although defendant "will stipulate to the DUI," he had developed some reservations about that portion of the stipulation in which he agreed he had refused the chemical test for intoxication:
"[DEFENSE COUNSEL]: Your Honor, my client is--he will stipulate to the DUI, but he's contending the refusal that he didn't refuse to take the test. So we had discussed this at one time and--
"THE COURT: Well, he's already entered into a stipulation I read in front of the jury that he refused.
"[DEFENSE COUNSEL]: We discussed this as strategy briefly, but my client has changed his mind.
"THE COURT: Well, it's a little late for that.
"[DEFENSE COUNSEL]: I understand.
"THE COURT: I already told the jury that he agrees that he refused.
"[DEFENSE COUNSEL]: Your Honor, I understand. This was something we had discussed previously with the testimony with the reports given. I advised my client this is what it was going to be, that for strategy reasons, what we should be doing. [ ] ... [ ]
"[DEFENSE COUNSEL]: One moment, Your Honor.
"(Off-the-record discussion.)
"[DEFENSE COUNSEL]: Your Honor, my client understands, and we have talked about this before. We will enter in the stipulation.
"THE COURT: All right. Mr. Nettles, you understand that you have the right to have a jury decide whether or not the allegation that you refused a chemical test is true to be decided by a jury. Do you understand that?
"THE DEFENDANT: Yes, I do.
"THE COURT: And by waiving the right to a jury on that issue and by abiding by the stipulation, you are, in fact, acknowledging that you refused a chemical test; is that correct?
"THE DEFENDANT: Yes. Can I ask one quick question?
*6 "THE COURT: Sure.
"THE DEFENDANT: All right.
"(Off-the-record discussion with attorney.) [ ] ... [ ]
"THE COURT: That's fine. So the jury will then not need to find that allegation true. The allegation is true. I find that Mr. Nettles has knowingly, intelligently, and voluntarily waived his right to a jury trial on that allegation and, in fact, has stipulated to the truthfulness of the allegation."
It is apparent from this exchange that defendant discussed with counsel before making the stipulation the "strategy" of waiving his right to a jury trial of the intoxication counts; and we conc
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