Opinion
Hearing Granted Feb. 24, 1971.
Opinion on pages 83 to 88 omitted
HEARING GRANTED
Subsequent opinion was not certified for publication.
Thomas C. Lynch, Atty. Gen., by Jack R. Winkler and Joel S. Primes, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.
E. Richard Walker, Davis, for defendant-appellant.
PIERCE, Presiding Justice.
Defendant appeals from a judgment entered by the trial court after submission of the case to the court by stipulations, solely on the transcript of the preliminary hearing. The court found defendant guilty of second degree burglary in violation of Penal Code section 459.
An examination of the transcript of the preliminary hearing shows only a perfunctory cross-examination of the prosecution's witnesses (the effect of which was actually to cement the prosecution's case against defendant). Evidence produced by the prosecution showed that defendant (with others not before the trial court) had been caught in the act of burglarizing a men's clothing store. Thus, once the stipulation had been made a conviction was certain.
When the stipulation was made at the trial, the trial court, before accepting it, ascertained by questions put to defendant that the latter knew that he was waiving (1) the right to a jury trial, and (2) the right to confront witnesses. There was no advice by the court of the nature of the charges or of the punishment for second degree burglary; nor was defendant asked if he was aware of such matters. Defense counsel made no argument on defendant's behalf.
From what has been stated above it becomes clear that the stipulation was the equivalent of a plea of guilty.
When a defendant pleads guilty his plea is more than a confession. A confession admits that the accused did certain acts. But the guilty plea is itself a conviction. Nothing remains but a judgment and sentence fixing punishment. (Boykin v. Alabama (1969) 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274.) Boykin also makes clear that when a plea of guilty is legally accepted in a state criminal trial the defendant has waived three fundamental rights guaranteed by the federal constitution: (1) the privilege against compulsive self-incrimination (Fifth Amendment); (2) the right to a trial by jury; and (3) the right to confront one's accusers ((2) and (3) being Sixth Amendment rights). These are applicable to the states by reason of the Fourteenth Amendment. The rule of Boykin is that a guilty plea can be accepted only upon a record affirmatively showing that it was free and voluntary, i.e., that all three of the foregoing constitutional guaranties have been met. And the court states (on pages 243-244, 89 S.Ct. on page 1712, 23 L.Ed.2d 274): 'What is at stake for an accused * * * demands [91 Cal.Rptr. 922] the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.'
Our Supreme Court in In re Tahl (1969) 1 Cal.3d 122, 130, 81 Cal.Rptr. 577, 460 P.2d 449, stated the Boykin rule but ruled that it only applied prospectively from the date of Boykin.
In In re Mosely (1970) 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 473, the court had before it precisely the same question as is involved in the instant case--whether a stipulation to submit a criminal case on the preliminary hearing transcript equated with a guilty plea. The court (in footnote 9, at page 924 of 1 Cal.3d, 83 Cal.Rptr. 809, 464 P.2d 473) cautioned that there are circumstances where it would not be. None of such circumstances were present here nor were they present in Mosely. There the court held at page 927, 83 Cal.Rptr. at page 817, 464 P.2d at page 481: 'Our decision is * * * that where, as in the instant case, the defendant submits his case on a transcript of the preliminary hearing which under the circumstances can offer him no hope of acquittal, such submission is tantamount to a plea of guilty and must be accompanied by the constitutional and statutory safeguards which such a plea entails.' Mosely, however, was a petition for a writ of habeas corpus. The writ was denied. It was denied, not because of any dissimilarity of the essential facts from those here present, but because under the rule in Tahl, Boykin is to be applied prospectively. The petitioner in Mosely had entered into the stipulation (reviewed in 1966) more than three years before Boykin.
The Attorney General contends that it must be presumed that defendant, who was represented by counsel, had been advised by him of the effect of a guilty plea (hence of the stipulation of submission). Both Tahl and Mosely are quoted in that regard. The quotations, however, refer to pre-Boykin law. In Tahl especially there is a comprehensive discussion (on pages 126-133 of 1 Cal.3d, 81 Cal.Rptr. 577, 460 P.2d 449) both of pre-Boykin law and of two possible interpretations of Boykin requirements. The court concludes that there must be an express showing of all of the enumerated rights. The court says (on p. 132, 81 Cal.Rptr. on p. 584, 460 P.2d on p. 456): 'This does not require the recitation of a formula by rote or the spelling out of every detail by the trial court. It does mean that the record must contain on its face direct evidence that the accused was aware, or made aware, of his right to confrontation, to a jury trial, and against self-incrimination, as well as the nature of the charge and the consequences of his plea. Each must be enumerated and responses elicited from the person of the defendant. Because mere inference is no longer sufficient, the presence of an attorney cannot alone satisfy these requirements; as noted, the defendant in Boykin was represented by counsel.'
The final contention of the Attorney General arises from the following sentence in footnote 10 on page 926 of 1 Cal.3d, on page 816 of 83 Cal.Rptr., on page 480 of 464 P.2d of the Mosely decision: 'We think it clear, however, that Boykin and Brookhart, taken together, require that in the future [italics ours] the use of stipulations which, in the circumstances of the particular case, are in fact tantamount to a plea of guilty * * * must be accompanied by an affirmative showing on the record that the defendant waives his right to freedom from compulsory self-incrimination * * *.' The words 'in the future' (which we have italicized in the foregoing sentence) are taken by the Attorney General to mean in the future after Mosely. Read in context it is clear to us that they only mean that the Boykin rule is to operate prospectively from the date of Boykin--decided June 2, 1969, approximately six months before this case was tried.
[91 Cal.Rptr. 923] It is true that in People v. Jordan (1970) 11 Cal.App.3d 597, 600, 90 Cal.Rptr. 40, the appellate court of the second district placed the same construction on 'in the future' as that placed by the Attorney General. We cannot agree with that interpretation. In addition to our belief that the context of the entire footnote 10 in Mosely does not permit the interpretation, neither would it be permissible as a matter of constitutional law. The Boykin rule by its express terms fixes a federal constitutional rule relating to acceptance of a plea of guilty binding upon the states via the Fourteenth Amendment
The question of an effective waiver of a federal constitutional right is governed by federal standards. (Boykin, supra, at p. 243 of 395 U.S., 89 S.Ct. 1709, 23 L.Ed.2d 274.) And it was in Boykin, not in Mosely, that federal standards were set in the instant case. Mosely is merely a declaration that that rule is applicable (under the circumstances encompassed) to the acceptance by the court of a stipulation by a defendant that his case be heard on the transcript of a preliminary hearing, which stipulation is effectually a guilty plea.
The record shows that defendant was guilty of burglary (and may have been subject to prosecution for first degree burglary--see Penal Code section 460--instead of second-degree burglary of which he was found guilty.) It is possible that there had been a plea bargain (although if there was we fail to understand why the indirect and circuitous method of a not guilty plea and then a stipulation-which-insured-conviction was adopted). Plea bargaining is not only legal but, in a proper case, approved. (People v. West (Dec. 3, 1970), 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409, typewritten copy p. 11 et seq.) There is nothing, however, in the record before this court which shows a plea bargain. If there were such a bargain, it argues 'loud and clear' for the validity of the declaration of our Supreme Court that '[w]e should exhume the process from stale obscurantism and let the fresh light of open analysis expose both the prior discussions and agreements of the parties, as well as the court's reasons for its resolution of the matter.' (Idem. p. 609, 91 Cal.Rptr, p. 393, 477 P.2d p. 417, typewritten copy p.22.)
The judgment is reversed.
FRIEDMAN and JANES, JJ., concur.