Walker

This case requires us to determine whether a trial judge may find an alleged prior conviction “not true” based on the trial judge’s personal belief the prosecution should have to prove the validity of the waiver of Boykin-Tahl rights, even in the absence of a challenge on that ground by the defendant. After rehearing, we conclude the prosecution is not required to prove, as an element of the “truth of a prior conviction” the validity of the underlying change of plea, because such challenge can only be made pursuant to the procedures set forth in People v. Sumstine (1984) 36 Cal.3d 909 [ 206 Cal.Rptr. 707 , 687 P.2d 904 ] (Sumstine) and People v. Allen (1999) 21 Cal.4th 424 [ 87 Cal.Rptr.2d 682 , 981 P.2d 525 ], We also conclude that a “not true” finding based on the absence of proof of a Boykin-Tahl waiver is not an acquittal and that the prosecution may appeal the court’s order effectively striking the alleged prior conviction.

David Jerome Walker entered a guilty plea to burglary of an automobile (Pen. Code, § 459) He waived his right to jury trial on the issue of the truth of two alleged serious/violent felony prior convictions (§ 667, subds. (b)-(i)) and one prison…