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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Daniel Wade PLUNKETT, Defendant and Appellant. IN RE: Daniel Wade PLUNKETT On Habeas Corpus.

Nos. B053557, B064611.

Decided: April 23, 1992

Michael L. Shultz, Malibu, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting, r. Asst. Atty. Gen., Robert Carl Schneider, and Juliet H. Swoboda, Deputy Attys. Gen., for plaintiff and respondent.

 Does Boykin 1–Tahl 2 apply when a defendant pleads not guilty, waives a jury trial, does not submit on the preliminary hearing transcript, and has a court trial which is “tantamount to a plea of guilty”?   We conclude the answer is yes.   Accordingly, we reverse the judgment of conviction.   The petition for habeas corpus, which we have consolidated for decision, is denied as moot.


Appellant was charged with a special circumstance murder committed with a firearm (Pen.Code, §§ 187,3 190.2, subd. (a)(17), 12022.5) and with robbery (§ 211).   Before trial the district attorney determined he would not seek the death penalty.   Defense counsel then asked the district attorney to forgo a life without possibility of parole punishment by moving to strike the special circumstance allegation.   The district attorney considered but declined the request.

On April 30, 1990, before Superior Court Judge Arthur Jean, appellant duly waived his right to a jury trial.   Earlier, however, he, his attorney, the prosecutor, and Superior Court Judge Norman Gordon had discussed having a court trial before Judge Gordon.   Following appellant's jury waiver, the case was set for trial in Judge Gordon's court on May 29, 1990.

On June 1, 1990, the trial began.   Both sides waived opening statement.   The prosecutor called six witnesses.   There was no cross-examination.   There were no defense objections.   The prosecution rested.   There was no defense.   The prosecutor made a half-page, “one-minute [closing] statement”.   Defense counsel made none.   On June 1, 1990, the trial ended.

The court found appellant guilty of first degree murder and second degree robbery and found true both the special circumstance (§ 190.2, subd. (a)(17)) and firearm (§ 12022.5) allegations.

The entire trial transcript is 49 pages.

The facts were not only brief but simple.   Appellant was a drug user in debt to his impatient and threatening supplier.   To pay off his debt he agreed to rob a pharmacy employee when she made her night deposit at the Security Pacific National Bank in Long Beach.

On June 10, 1989, about 11 p.m., the employee was in the process of dropping the deposit pouch into the deposit slot when appellant pushed her “out of the way and took the” pouch.   Duncan Anderson, who saw the robbery, ran after appellant.   About a block away, when Mr. Anderson caught up with appellant, appellant fatally shot him.   Appellant escaped on a waiting motorcycle driven by his drug supplier.

Appellant told some friends about the robbery-shooting and one of them told the police.   Twelve days later appellant was arrested.   He made a full confession.


1. Was the trial “tantamount to a plea of guilty”?

 From appearances, the trial certainly seemed “tantamount to a plea of guilty.”   In the face of what even the attorney general has characterized as “overwhelming” evidence of guilt, appellant was quiescent.   He did not object, cross-examine, call witnesses, or argue.   Reading the abbreviated trial transcript one has the impression of a “pretend” trial:  the prosecutor just going through the motions, the defense utterly passive and resigned, and the result a foregone conclusion.

 This impression is reinforced by defense counsel's post-trial comments.   When, immediately after finding appellant guilty as charged, the trial court inquired about a probation and sentence hearing date, defense counsel stated, “We had planned an extensive probation and sentencing on this.”  (Emphasis added.)   Defense counsel explained that “we are going to ask the court to strike the special circumstances․”  Later, at the combined sentence and motion-to-strike-the-special-circumstance hearing, defense counsel stated:  “From day one it was really never an issue of whether or not the defendant was guilty․  Defendant was willing to plead guilty from step one․  He wasn't fighting the case.”   Defense counsel further explained that the only purpose of the trial 4 was “that the court consider striking the special circumstance[ ].”

Appearances notwithstanding, to determine whether or not the instant trial was “tantamount to a plea of guilty” we must consider the development, purpose, and application of the Boykin–Tahl doctrine.

2. Boykin–Tahl doctrine.

Three years before Boykin, the United States Supreme Court reviewed a conviction obtained not by guilty plea but by a “prima facie case.”   An Ohio defendant charged with forgery had pleaded not guilty and then spent 18 months in custody awaiting trial.   His appointed attorney told the court defendant wanted a “prima facie” trial, i.e., one without cross-examination and without a defense.   Such a “trial” could be provided without delay.   Defendant told the court, “in no way am I pleading guilty to this charge” but, when pressed by the court, did not object to a “prima facie” trial.

The Supreme Court granted the defendant's habeas corpus petition because his “prima facie” trial was equivalent to a guilty plea and had been obtained without his waiver of confrontation and self-incrimination.  (Brookhart v. Janis (1966) 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314.)

In Boykin v. Alabama, supra, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 the court reversed a guilty plea conviction because the record failed to affirmatively show defendant-waivers of self-incrimination, jury trial, and confrontation.

Our Supreme Court construed Boykin as requiring “that each of the three rights mentioned—self-incrimination, confrontation, and jury trial—must be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his guilty plea.”  (In re Tahl, supra, 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 460 P.2d 449.)

In re Mosley  (1970) 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 4735 extended Boykin–Tahl to a trial conviction, a trial consisting entirely of a submission on the preliminary hearing transcript (SOT).   When such a SOT is “tantamount to a plea of guilty” the requirements of Boykin–Tahl apply.  (Id. at p. 926, fn. 10, 83 Cal.Rptr. 809, 464 P.2d 473.)  Mosley was prospective in application.  (People v. Gallegos (1971) 4 Cal.3d 242, 93 Cal.Rptr. 229, 481 P.2d 237.)

Because Mosley applied only to some, not all, SOTs, trial courts gave Boykin–Tahl admonitions only to some, not all, SOT defendants.   The result was a flood of Mosley appeals, primarily in the Second District.6  Repeatedly, appellate courts were asked to decide whether a particular SOT was or was not “tantamount to a plea of guilty.”  (See, e.g., People v. Hobbs (1970) 10 Cal.App.3d 831, 89 Cal.Rptr. 123;  People v. Moreland (1971) 15 Cal.App.3d 269, 92 Cal.Rptr. 563;  People v. West (1971) 15 Cal.App.3d 1015, 93 Cal.Rptr. 496;  People v. Neder (1971) 16 Cal.App.3d 846, 94 Cal.Rptr. 364;  People v. Johnson (1971) 18 Cal.App.3d 959, 96 Cal.Rptr. 421;  People v. Cook (1971) 19 Cal.App.3d 405, 96 Cal.Rptr. 860;  People v. Guerra (1971) 21 Cal.App.3d 534, 98 Cal.Rptr. 627;  People v. Soranno (1971) 22 Cal.App.3d 312, 99 Cal.Rptr. 235;  People v. Sanchez (1972) 24 Cal.App.3d 664, 101 Cal.Rptr. 193;  People v. Dorsey (1972) 25 Cal.App.3d 366, 101 Cal.Rptr. 826;  People v. Howell (1973) 30 Cal.App.3d 228, 105 Cal.Rptr. 748;  People v. Phillips (1973) 31 Cal.App.3d 483, 107 Cal.Rptr. 386.)

To staunch this flow, our Supreme Court extended Mosley to all SOTs and expanded the required advisements and waivers.  (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086.)

Although Bunnell resolved most SOT issues, it left undecided the question:  to what kind of proceedings other than an SOT might Boykin–Tahl apply?

The answers have been numerous.  Boykin–Tahl does not apply to the following:  a jury trial (even with a “minimal defense”) (People v. Murphy (1972) 8 Cal.3d 349, 366, 105 Cal.Rptr. 138, 503 P.2d 594;  People v. Hendricks (1987) 43 Cal.3d 584, 238 Cal.Rptr. 66, 737 P.2d 1350);  People v. Griffin (1988) 46 Cal.3d 1011, 1029, 251 Cal.Rptr. 643, 761 P.2d 103;  People v. Cox (1991) 53 Cal.3d 618, 670–671, 280 Cal.Rptr. 692, 809 P.2d 351);  a probation violation hearing (People v. Dale (1973) 36 Cal.App.3d 191, 112 Cal.Rptr. 93 [defendant submitted an alleged probation violation on a “negative” report by a probation officer] );  to the stipulated testimony of a single witness in a multi-witness trial (People v. Hall (1979) 95 Cal.App.3d 299, 314–316, 157 Cal.Rptr. 107);  to the penalty phase of a trial (People v. Jackson (1980) 28 Cal.3d 264, 313–315, 168 Cal.Rptr. 603, 618 P.2d 149 [no mitigating evidence presented] );  to an SOT where not only the victim again testified and was cross-examined but the defendant also testified (People v. Phillips (1985) 172 Cal.App.3d 670, 218 Cal.Rptr. 524);  to defense counsel's concession during final argument that defendant was guilty of burglary (but not robbery or murder) (People v. Ratliff (1986) 41 Cal.3d 675, 696–697, 224 Cal.Rptr. 705, 715 P.2d 665);  to a bifurcated prior-conviction-allegation trial (People v. Chandler (1986) 186 Cal.App.3d 200, 204, 230 Cal.Rptr. 492 [defendant waived jury and the prosecutor proved the priors with documentary evidence] ).

But Boykin–Tahl does (or may) apply to the following:  an SOT involving a 131–page preliminary hearing transcript and a 425–page former codefendant's trial transcript (People v. Cook (1971) 19 Cal.App.3d 405, 96 Cal.Rptr. 860);  submission on doctors' reports at a mentally disordered sex offender hearing (People v. Townsend (1971) 20 Cal.App.3d 919, 98 Cal.Rptr. 8);  entry of only a not guilty by reason of insanity plea (People v. Rizer (1971) 5 Cal.3d 35, 95 Cal.Rptr. 23, 484 P.2d 1367);  misdemeanor trials (Mills v. Municipal Court (1973) 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273);  felony conviction allegations (In re Yurko (1974) 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561);  narcotic conviction allegations (In re Foss (1974) 10 Cal.3d 910, 112 Cal.Rptr. 649, 519 P.2d 1073);  to “hybrid” arrangements requiring trial court to find defendant guilty of at least a specified minimum offense but prohibiting conviction of a specified maximum offense (People v. Rogers (1961) 56 Cal.2d 301, 14 Cal.Rptr. 660, 363 P.2d 892;  People v. Gray (1982) 135 Cal.App.3d 859, 185 Cal.Rptr. 772;  People v. Huynh (1991) 229 Cal.App.3d 1067, 281 Cal.Rptr. 785);  SOT plus submission on police reports (People v. Wells (1983) 149 Cal.App.3d 497, 195 Cal.Rptr. 608);  submission on reports of psychiatrists (during a bifurcated sanity trial) (ibid.);   submission on police reports (In re Michael V. (1986) 178 Cal.App.3d 159, 223 Cal.Rptr. 503).

It is also clear that Boykin–Tahl may apply when the “submission” involves live testimony rather than a transcript or a report.   For example, in In re Steven H. (1982) 130 Cal.App.3d 449, 181 Cal.Rptr. 719, the juvenile, after confronting a witness (and having an opportunity to cross-examine him) during a suppression hearing, submitted his trial on that witness's just given testimony.   The order declaring him to be a ward was reversed on Boykin–Tahl grounds.

Moreover, even when live testimony is presented during trial, Boykin–Tahl may apply.   In People v. Drieslein (1985) 170 Cal.App.3d 591, 216 Cal.Rptr. 244 not only was there a submission on the transcripts of the preliminary hearing and section 1538.5 hearing but the prosecution also called a “live” witness.   The conviction was reversed on Boykin–Tahl grounds.

Finally, just as in the instant trial, Boykin–Tahl may apply when there is no stipulation to testimony and the trial consists entirely of “live” testimony.   In People v. Tran (1984) 152 Cal.App.3d 680, 199 Cal.Rptr. 539 the trial began with a jury but after the victim concluded his direct examination the parties waived jury, stipulated to certain lesser included offenses, and rested.  “The court immediately found the defendants guilty of the stipulated lesser included offenses and not guilty of all other charges.”   (Id. at p. 683, 199 Cal.Rptr. 539.)   In reversing the convictions the Court of Appeal characterized the trial as a “legal charade” (id. at p. 684, 199 Cal.Rptr. 539), nothing more than a “slow plea” 7 which “counsel simply lacks the authority to [enter] ․ without [defendants'] informed consent.”   (Id. at p. 685, 199 Cal.Rptr. 539.)

The instant case is more compelling than Tran.   Here, six credible prosecution witnesses testified while in Tran there was only one, and he “related a confusing, disjointed statement through a Vietnamese interpreter.”   (People v. Tran, supra, at p. 682, 199 Cal.Rptr. 539.) 8  Here, appellant received neither benefit nor bargain, being convicted of charges which subjected him to life without possibility of parole punishment.   In Tran, the defendants were charged with felonies, convicted only of misdemeanors, and given time-served sentences.   Here, as in Tran, “[t]here was no warning ․ that [appellant] [was] likely to be convicted of anything. ”  (People v. Tran, supra, at p. 685, 199 Cal.Rptr. 539.   Original emphasis.)   Here, as in Tran, there was “no cross-examination, no defense, and no argument.”  (Id. at p. 683, 199 Cal.Rptr. 539.)

 As with a traditional SOT, we believe “[i]t would exalt form over substance if we were to conclude that a defendant who directly admits his guilt is entitled to the full panoply of rights described in Boykin and Tahl but one who indirectly makes the same admission ․ is not entitled to the same rights.”  (People v. Levey (1973) 8 Cal.3d 648, 652, 105 Cal.Rptr. 516, 504 P.2d 452.)

Appellant, as surely as if he had pleaded nolo contendere or agreed to a “prima facie” trial (Brookhart v. Janis, supra, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314), admitted his guilt.   His was a trial without contest.   We conclude that appellant's trial was “tantamount to a plea of guilty.”

On this record reversal is required.   Appellant pleaded not guilty and therefore was not advised of and did not waive his right of confrontation and privilege against self-incrimination.   There is nothing in the “totality of the circumstances” that shows appellant voluntarily and intelligently relinquished these rights.  (People v. Howard, 1 Cal.4th 1132, 1175, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)

Since we must reverse the judgment, it is unnecessary to consider other contentions raised by appellant.

It may, however, be useful to consider two remaining questions, usually ignored or puzzlingly explained.   First, why is Boykin–Tahl inapplicable to a jury trial but applicable to a court trial?   Second, how can the trial judge fulfill Boykin–Tahl responsibilities when a court trial turns out to be a “slow guilty plea?”

3. Why Boykin–Tahl is inapplicable to a jury trial but applicable to a court trial.

Our Supreme Court has explained Boykin–Tahl inapplicability to jury trials this way:  “When a defendant undergoes a jury trial any competent defense counsel will inform him of his right to call witnesses on his own behalf, of his right to testify or not to testify, and, in the absence of unusual circumstances, will cross-examine the witnesses for the prosecution.”   (People v. Murphy, supra, 8 Cal.3d 349, 366, 105 Cal.Rptr. 138, 503 P.2d 594;  People v. Hendricks, supra, 43 Cal.3d 584, 592, 238 Cal.Rptr. 66, 737 P.2d 1350 [quoting Murphy ].)

This explanation is more puzzling than clarifying.   It appears to rely upon a factual presumption (“competent defense will inform him of his right ․”) from a silent record, precisely what Boykin–Tahl prohibit.  (“We cannot presume a waiver of these three important federal rights from a silent record.”  (Boykin v. Alabama, supra, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274.)

In fact, as People v. Hendricks disclosed the rationale is not a factual presumption:  the “defendant must be deemed to have been informed of his rights by counsel․”  (People v. Hendricks, supra, 43 Cal.3d 584, 593, 238 Cal.Rptr. 66, 737 P.2d 1350.)  (Emphasis added.)

But why must the jury-trial-defendant “be deemed to have been informed of his rights by counsel?”   The answer, we believe, turns on the right of cross-examination and on practicalities.

The right to a jury trial is not in question with a jury-trial-defendant because that right is exercised, not surrendered.   No advisement and no express waiver is appropriate or necessary.

Similarly, the privilege against compulsory self-incrimination (by a quiescent jury-trial-defendant) is not implicated because by not testifying he exercises, not surrenders, the privilege.

The snag is with the third right, “the right to confront one's accusers.”   (Boykin v. Alabama, supra, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 26 L.Ed.2d 274.)   If a jury-trial-defendant surrenders this right by failing to cross-examine any prosecution witness and Boykin–Tahl require an express waiver of this right, then a jury-trial-defendant who refuses to waive this right could not be validly convicted.   Such a result, to understate it, is impractical.  (Cf. People v. Chasco (1969) 276 Cal.App.2d 271, 274–276, 80 Cal.Rptr. 667.)

By contrast, this intolerable result can be avoided in a court trial.   A defendant has no right to a court trial and the trial judge, before accepting a jury waiver, may make all appropriate inquiries and require all appropriate waivers, even, in extreme cases, a waiver of the right to cross-examine witnesses.9

4. How can the trial judge fulfill Boykin–Tahl responsibilities in a “slow plea” court trial?

The issue will rarely arise.   During the 23 years since Boykin, we are aware of only one other “slow plea” court trial (People v. Tran, supra, 152 Cal.App.3d 680, 199 Cal.Rptr. 539) not involving some sort of SOT or stipulation.

 Of course, in such rare instances, if either counsel—prosecutor or defense counsel—is aware the court trial will be an uncontested one, there is a duty to inform the trial court.  Boykin–Tahl advisements may then be given and waivers obtained.

 Even without being alerted by counsel, a trial court may, before accepting a jury waiver, inquire whether the trial will be uncontested.   Such inquiries, prior to Bunnell, were commonplace with SOTs.  (See, e.g., People v. Phillips (1973) 31 Cal.App.3d 483, 486, 107 Cal.Rptr. 386.)   But assurances by counsel that the trial will be a contested one and hence Boykin–Tahl is inapplicable—are not binding on appeal.  (Ibid.)

As in Tran, the instant record does not portray a judge surprised by an uncontested trial.   Rather, and understandably, the record simply suggests the trial judge was unaware Boykin–Tahl applied to such an uncontested trial.


The judgment is reversed.   The petition is denied, as moot.


1.   Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.

2.   In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.

3.   Unless otherwise noted, all statutory references are to the Penal Code.

4.   It is unclear from defense counsel's remarks whether he believed that judicial discretion to strike a special circumstance could only be exercised if there had been a trial (rather than a conviction by plea) or whether he merely believed that a trial was helpful to the exercise of such discretion.  (A trial was not necessary.   See People v. Williams (1982) 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029.)

5.   Mosley was foreshadowed by People v. Wheeler (1968) 260 Cal.App.2d 522, 67 Cal.Rptr. 246.

6.   In 1970, of the 33,142 felony dispositions in Los Angeles County Superior Court 30.8 percent were by SOT.   In the rest of California, the SOT disposition rate was 3 percent.  (Greenwood et al., Prosecution of Adult Felony Defendants (1976) pp. xxiii, 125.)

7.   The court then “venture[d] to define the term ‘slow plea.’   It is an agreed-upon disposition of a criminal case via any one of a number of contrived procedures which does not require the defendant to admit guilt but results in a finding of guilty on an anticipated charge and, usually, for a promised punishment.”  (Id. at p. 683, fn. 2, 199 Cal.Rptr. 539.)   Without approving this definition, the Supreme Court quoted it in People v. Wright (1987) 43 Cal.3d 487, 496, 233 Cal.Rptr. 69, 729 P.2d 260.   We do not find the definition helpful.   By employing the passive term “an agreed-upon disposition,” the definition blurs what is almost always the critical issue:  whether the defendant knowingly agreed to the disposition.   Nor, as the definition implies, do we believe the prosecutor 's agreement is an essential element, although usually present.

8.   Even in “slow plea” SOTs the trial court has the responsibility to determine if the defendant is guilty beyond a reasonable doubt.   (People v. Martin (1973) 9 Cal.3d 687, 694–695, 108 Cal.Rptr. 809, 511 P.2d 1161;  People v. McKinzie (1982) 134 Cal.App.3d 1016, 1020, 184 Cal.Rptr. 884.)

9.   By such a waiver we mean only an express defendant acknowledgement of his right to cross-examine witnesses and the waiver of that right by its not being exercised.

FRED WOODS, Associate Justice.

LILLIE, P.J., and JOHNSON, J., concur.

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