Opinion
MOSK, J.
On July 30, 1969, defendant pleaded not guilty by reason of insanity to a charge of issuing a check without sufficient funds (Pen. Code, § 476a) and in a separate case he entered the same plea to a charge of assault with a caustic chemical (Pen. Code, § 244). As provided in section 1016 of the Penal Code, a defendant who pleads not guilty by reason of insanity, without also pleading not guilty, thereby admits the commission of the underlying offense. After a trial on the sanity issue by the court sitting without a jury, defendant was found to' be sane at the time of the commission of the offenses charged and judgments of conviction were duly entered.1 The sole issue on this appeal is whether defendant’s pleas were constitutionally deficient under standards in effect at the time of entry.
Defendant originally pleaded not guilty to both charges. The court expressed doubt about Ms sanity and appointed psychiatrists to examine him. (Pen. Code, § 1368.) Alter hearing the medical testimony, the court found that defendant was insane and ordered Mm to be confined at Atascadero State Hospital. Subsequently, he was returned from Atascadero for further proceedings and counsel was appointed to represent Mm.
[37]*37On July 30, 1969, defendant requested permission to change his pleas. He withdrew the pleas of not guilty and pleaded not guilty by reason of insanity to both charges.2 The change of plea occurred after a colloquy between defendant and'the trial judge which will be discussed infra.
The two charges were consolidated for purposes of trial, and after hearing the testimony of psychiatrists and other witnesses, the trial court found defendant to be sane at the time the offenses were committed. Defendant moved for a new trial in both actions, and his motions were denied.
On June 2, 1969, the United States Supreme Court decided Boykin v. Alabama, 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709], which held that the record must affirmatively indicate a guilty plea was voluntarily and intelligently entered and that defendant waived the rights surrendered by a guilty plea. This court, in In re Tahl, 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449], decided on November 7, 1969, explicated the holding of Boykin and ruled that the principles set forth in Boykin were to be given prospective application only. As manifest by the chronology of events, defendant’s change of plea, which is equated to a plea of guilty, occurred after Boykin was decided but prior to our decision in Tahl. We conclude that since the circumstances attending the entry of the plea did not meet the specifications of Boykin, as those requirements were reflected in Tahl, and defendant entered his pleas after Boykin, the judgments must be reversed.
In Boykin the petitioner pleaded guilty to five indictments charging him with robbery, and a jury sentenced him to die on each count. The petitioner did not address the court and the judge asked him no questions concerning his plea. The Supreme Court reversed the conviction on the ground that it was error for the trial judge to accept the petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary. The court held that when a guilty plea is entered the accused waives the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront his accusers, that the waiver of these three fundamental rights cannot be presumed from a silent record, and that utmost solicitude is demanded in canvassing the matter with the accused to determine whether he has a full understanding of the connotation of the plea and its consequences. A judge who fulfills that responsibility leaves a record adequate for appellate review.
[38]*38In re Tahl, supra, 1 Cal.3d 122, decided some five months later, involved a petitioner who had entered his guilty plea prior to the Boykin decision. We reasoned as follows: Prior to Boykin, no specific language was prescribed to establish the waiver of rights and understanding of consequences attendant upon a plea of guilty, the court merely looking to the overall record and surrounding circumstances to ascertain the voluntary nature of the plea. The crucial factor was the presence of counsel at the time of the plea since, if the accused had counsel, courts generally assumed in the absence of evidence to the contrary that counsel would inform the accused of his constitutional rights and take steps to assure their protection. Judged by these pre-Boykin standards, the petitioner’s plea in Tahl was voluntarily entered.
However, we concluded, Boykin effected a change in the law. It made clear that a plea of guilty cannot stand unless the record indicates a free and intelligent waiver of the three enumerated rights necessarily abandoned by a guilty plea and an understanding of the nature and consequences of the plea. Mere inferences, however plausibly drawn, are insufficient, Each of the three rights must be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his guilty plea. This is not only a fair deduction from the Boykin opinion but it is the only realistic means of assuring that the judge leaves a record adequate for any review that may be sought. Boykin was, however, to be given prospective application only.
Defendant contends and the People concede that there was no express waiver by defendant of his right to confront witnesses against him and the colloquy set forth in the margin supports his claim.3
[39]*39The People insist, however, that no direct waiver of the right to confrontation was required because defendant’s pleas were entered after Boykin was decided but before the Tahl opinion, and the holding of the [40]*40latter case should be given prospective application only. They theorize that Boykin requires only that some affirmative record be made by the court to show that a guilty plea was intelligent and voluntary and they contend that such a record was made here. Tahl, it is asserted, set forth more stringent requirements, than Boykin for acceptance of a guilty plea, and the additional requisites of Tahl should be applicable only to cases in which pleas were entered after Tahl.
There is no merit in this argument. First, Boykin specifically states that the waiver of the three enumerated rights cannot be presumed from a silent record (395 U.S. at p. 243 [23 L.Ed.2d at p. 279]) and the decision thus stands for a proposition more precise than that an affirmative record must be made merely on the issue of voluntary and knowing waiver. Indeed, it appears from the opinions therein that the petitioner in Boykin did not claim his plea was involuntary or made without knowledge of its consequences. Second, it is manifest from the opinion in Tahl that this court was not imposing requirements in addition to those set forth in Boykin but was merely expounding for the guidance of California trial courts the specific procedure which the holding in Boykin demands. It is equally clear that the exactions of Boykin, as explained in Tahl,
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Opinion
MOSK, J.
On July 30, 1969, defendant pleaded not guilty by reason of insanity to a charge of issuing a check without sufficient funds (Pen. Code, § 476a) and in a separate case he entered the same plea to a charge of assault with a caustic chemical (Pen. Code, § 244). As provided in section 1016 of the Penal Code, a defendant who pleads not guilty by reason of insanity, without also pleading not guilty, thereby admits the commission of the underlying offense. After a trial on the sanity issue by the court sitting without a jury, defendant was found to' be sane at the time of the commission of the offenses charged and judgments of conviction were duly entered.1 The sole issue on this appeal is whether defendant’s pleas were constitutionally deficient under standards in effect at the time of entry.
Defendant originally pleaded not guilty to both charges. The court expressed doubt about Ms sanity and appointed psychiatrists to examine him. (Pen. Code, § 1368.) Alter hearing the medical testimony, the court found that defendant was insane and ordered Mm to be confined at Atascadero State Hospital. Subsequently, he was returned from Atascadero for further proceedings and counsel was appointed to represent Mm.
[37]*37On July 30, 1969, defendant requested permission to change his pleas. He withdrew the pleas of not guilty and pleaded not guilty by reason of insanity to both charges.2 The change of plea occurred after a colloquy between defendant and'the trial judge which will be discussed infra.
The two charges were consolidated for purposes of trial, and after hearing the testimony of psychiatrists and other witnesses, the trial court found defendant to be sane at the time the offenses were committed. Defendant moved for a new trial in both actions, and his motions were denied.
On June 2, 1969, the United States Supreme Court decided Boykin v. Alabama, 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709], which held that the record must affirmatively indicate a guilty plea was voluntarily and intelligently entered and that defendant waived the rights surrendered by a guilty plea. This court, in In re Tahl, 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449], decided on November 7, 1969, explicated the holding of Boykin and ruled that the principles set forth in Boykin were to be given prospective application only. As manifest by the chronology of events, defendant’s change of plea, which is equated to a plea of guilty, occurred after Boykin was decided but prior to our decision in Tahl. We conclude that since the circumstances attending the entry of the plea did not meet the specifications of Boykin, as those requirements were reflected in Tahl, and defendant entered his pleas after Boykin, the judgments must be reversed.
In Boykin the petitioner pleaded guilty to five indictments charging him with robbery, and a jury sentenced him to die on each count. The petitioner did not address the court and the judge asked him no questions concerning his plea. The Supreme Court reversed the conviction on the ground that it was error for the trial judge to accept the petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary. The court held that when a guilty plea is entered the accused waives the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront his accusers, that the waiver of these three fundamental rights cannot be presumed from a silent record, and that utmost solicitude is demanded in canvassing the matter with the accused to determine whether he has a full understanding of the connotation of the plea and its consequences. A judge who fulfills that responsibility leaves a record adequate for appellate review.
[38]*38In re Tahl, supra, 1 Cal.3d 122, decided some five months later, involved a petitioner who had entered his guilty plea prior to the Boykin decision. We reasoned as follows: Prior to Boykin, no specific language was prescribed to establish the waiver of rights and understanding of consequences attendant upon a plea of guilty, the court merely looking to the overall record and surrounding circumstances to ascertain the voluntary nature of the plea. The crucial factor was the presence of counsel at the time of the plea since, if the accused had counsel, courts generally assumed in the absence of evidence to the contrary that counsel would inform the accused of his constitutional rights and take steps to assure their protection. Judged by these pre-Boykin standards, the petitioner’s plea in Tahl was voluntarily entered.
However, we concluded, Boykin effected a change in the law. It made clear that a plea of guilty cannot stand unless the record indicates a free and intelligent waiver of the three enumerated rights necessarily abandoned by a guilty plea and an understanding of the nature and consequences of the plea. Mere inferences, however plausibly drawn, are insufficient, Each of the three rights must be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his guilty plea. This is not only a fair deduction from the Boykin opinion but it is the only realistic means of assuring that the judge leaves a record adequate for any review that may be sought. Boykin was, however, to be given prospective application only.
Defendant contends and the People concede that there was no express waiver by defendant of his right to confront witnesses against him and the colloquy set forth in the margin supports his claim.3
[39]*39The People insist, however, that no direct waiver of the right to confrontation was required because defendant’s pleas were entered after Boykin was decided but before the Tahl opinion, and the holding of the [40]*40latter case should be given prospective application only. They theorize that Boykin requires only that some affirmative record be made by the court to show that a guilty plea was intelligent and voluntary and they contend that such a record was made here. Tahl, it is asserted, set forth more stringent requirements, than Boykin for acceptance of a guilty plea, and the additional requisites of Tahl should be applicable only to cases in which pleas were entered after Tahl.
There is no merit in this argument. First, Boykin specifically states that the waiver of the three enumerated rights cannot be presumed from a silent record (395 U.S. at p. 243 [23 L.Ed.2d at p. 279]) and the decision thus stands for a proposition more precise than that an affirmative record must be made merely on the issue of voluntary and knowing waiver. Indeed, it appears from the opinions therein that the petitioner in Boykin did not claim his plea was involuntary or made without knowledge of its consequences. Second, it is manifest from the opinion in Tahl that this court was not imposing requirements in addition to those set forth in Boykin but was merely expounding for the guidance of California trial courts the specific procedure which the holding in Boykin demands. It is equally clear that the exactions of Boykin, as explained in Tahl, were applicable to all pleas entered after Boykin.
Tahl recites, for example, that Boykin “necessitates a more precise showing on all phases of a guilty plea than mere inferences however plausibly drawn” (1 Cal.3d at p. 131), and that a fair conclusion from Boykin is that the three rights mentioned therein be expressly enumerated for the benefit of the accused and waived by him (p. 132). It is further specified that in the post-Boykin setting courts should avoid uncertainty and produce the required information for the record (p. 133) and that Boykin dictates new procedures which should be given prospective application to those cases in which pleas were entered after Boykin (p. 135). [41]*41We thus made it abundantly clear that prospectivity related to Boykin, not to Tahl.
Decisions of the Courts of Appeal subsequent to Tahl have correctly interpreted the holding of that case to apply to all guilty pleas entered after the date of Boykin. (People v. Vick (1970) 11 Cal.App.3d 1058, 1071 [90 Cal.Rptr. 236]; In re Michael M. (1970) 11 Cal.App.3d 741, 744 [89 Cal.Rptr. 718]; see also People v. Jordan (1970) 11 Cal.App.3d 597, 600 [90 Cal.Rptr. 40]; People v. Gayton (1970) 10 Cal.App.3d 178, 181 [88 Cal.Rptr. 891].)
Moreover, we would be required to conclude that the instant plea was defective even if we were to accede arguendo to the People’s contention that the requirement of express waiver set forth in Tahl is prospective only. This follows for the reason that Boykin cannot be interpreted to hold merely that the record must affirmatively show a guilty plea was voluntarily and intelligently made.4 In Tahl we stated that Boykin might [42]*42plausibly be interpreted to mean that an express showing of waiver of the three constitutional rights surrendered by a guilty plea is not required but that the waiver of these rights could be inferred from the record. However, neither we nor any persuasive authority have suggested that a general showing the plea was voluntary and intelligent would satisfy Boykin. We noted that the record might well support a presumption that the petitioner in Tahl was advised of his rights of confrontation and self-incrimination from his acknowledgment that his attorney had explained his constitutional rights to him. But, we opined, it was not necessary to determine the applicability of such a rule to the facts therein because Boykin necessitated a more precise showing than mere inference, no matter how plausibly drawn from the evidence, i.e., a specific and express enumeration and waiver by the accused of the three constitutional rights surrendered by a guilty plea (1 Cal.3d at pp. 130-132).
Here, acceptance of even the rejected alternative rationale would not validate the plea because there was no record from which we may infer that defendant was advised of the right to confront witnesses against him. The People rely upon the facts that the defendant was a man of intelligence, that he had a prior conviction, and that he had discussed the change of plea with his attorney. While these circumstances might have justified an inference that the plea was voluntarily and intelligently entered under the standards applicable prior to Boykin, they do not satisfy even the more tolerant alternative interpretation of Boykin suggested in Tahl.
Our conclusion is not inconsistent with People v. Gallegos (1971) 4 Cal.3d 242 [93 Cal.Rptr. 229, 481 P.2d 237] and In re Mosley (1970) 1 Cal.3d 913 [83 Cal.Rptr. 809, 464 P.2d 473]. In Mosley we held that the principles set forth in Boykin and Tahl were applicable whenever a defendant stipulated that he would submit his case on the transcript of the preliminary hearing under circumstances in which submission was tantamount to a guilty plea. However, express waiver would be required only as to stipulations made “in the future.” (1 Cal.3d at p. 926, fn. 10.) The issue in Gallegos was whether certain proceedings which occurred in the period between the Boykin and Tahl decisions, which defendant claimed amounted to a guilty plea under Mosley, should be governed by the standards of Mosley (i.e., the express waiver required by Boykin-Taht). We held that Mosley would be applied prospectively only. In reaching this conclusion we relied primarily on the fact that trial judges could not reasonably expect that the Boykin-Tahl requirements would be applied not only to guilty pleas but also to stipulations of the type discussed in Mosley and that Mosley itself, in recognition of this fact, stated that its teachings were to be applied in the future, Here, [43]*43by contrast, we are not faced with a question of the type of proceeding to which Boykin should be applied, i.e., it is applicable in all guilty plea proceedings. Furthermore, Tahl (unlike Mosley) makes it clear that its requirements are applicable to guilty pleas accepted after Boykin.
Under the circumstances trial judges could reasonably have anticipated that the United States Supreme Court’s decision in Boykin would be interpreted in the proper manner described in Tahl. In fact, it appears that in the state’s largest court, the Los Angeles Superior Court, the approved practice prior to Tahl was to require a defendant who entered a guilty plea to expressly acknowledge that by doing so he waived the three constitutional rights surrendered by the plea. (See Los Angeles Superior Court Criminal Trial Judges’ Benchbook, Plea of Guilty, adopted April 18, 1969.) Presumably, other courts were also following the procedures dictated by Boykin as expounded in Tahl during the comparatively brief interval between the two decisions.
In view of our conclusion that defendant’s pleas of not guilty by reason of insanity were deficient, it is not necessary to discuss his additional contention that the evidence was insufficient to support the trial court’s determination that he was sane at the time the offenses were committed.
The judgments are reversed.
Peters, J., Tobriner, J., and Sullivan, J., concurred.