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District Court of Appeal, First District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Burdette ROGERS, Defendant and Appellant.*

Cr. 3773.

Decided: November 17, 1960

Robert H. Aarons, Robert J. Johnston, Pasadena, for appellant. Stanley Mosk, Atty. Gen., of California, Arlo E. Smith and Daniel A. Sharp, Deputy Attys. Gen., for respondent.

On this appeal from a judgment of conviction of murder in the second degree, the only question is whether the appellant was denied a fair trial because of the effect of a stipulation entered into by his counsel and the district attorney. As there are no issues relating to the facts or the evidence, it is sufficient to indicate that there was no dispute as to the facts, that the appellant admitted shooting his wife by firing into her face with a rifle during an argument about her conduct with another man, but claimed that the shooting occurred accidentally.

Appellant was charged by indictment with the murder of his wife and entered a plea of not guilty. Appellant then properly waived a jury and all counsel stipulated that the court would consider the evidence as presented with the restriction that the court would be restricted to either a finding of second degree murder or a finding of voluntary or involuntary manslaughter, and that the court would be precluded from a finding of first degree murder or a finding of not guilty.

On appeal, it is argued that the effect of the above stipulation was to withdraw the appellant's plea of not guilty and erroneously enter a plea of guilty, made not personally by the appellant but by his attorney. There is no merit in this argument. The record shows that the appellant was present in open court when the stipulation was made. In the absence of circumstances to the contrary, it is to be assumed that an attorney acts with proper authority. Lachman Bros. v. Muenzer, 143 Cal.App.2d 520, 300 P.2d 295. It is well established law that counsel has the right to stipulate relative to any of the steps of an action or proceeding particularly where the stipulation was made in the presence of the accused who made no objection to it. People v. Cohen, 94 Cal.App.2d 451, 210 P.2d 911; see also People v. Wilson, 78 Cal.App.2d 108, 119–120, 177 P.2d 567. Stipulations fixing the degree of a crime are proper. People v. Ward, 118 Cal.App.2d 604, 258 P.2d 86; People v. Helsley, 41 Cal.App.2d 935, 108 P.2d 97.

The entire argument on appeal is based on certain comments made by the trial court. During the first day of trial, during the discussion of a hearsay objection raised by the appellant's attorney, the court said:

‘A lot of these things in this trial we are hearing may be exposed to legal objection, you see, but exposure is quite different than a trial in which a presumption of innocence goes throughout and the sole purpose of the fact finder is to find guilt or innocence, but here is something different—a pseudo trial because the Court is bound—the defendant cannot be—under the stipulation, found guilty of murder first or be found innocent, so it all goes to throw light on every aspect, if that light will help determine the true nature of the crime. [Emphasis supplied.]

Several days later at the conclusion of all the evidence, before hearing the argument of counsel, the court said:

‘At this point, and being totally open to every conviction or dissilusionment by argument at this point, were I trying this case without the stipulation of counsel, I would be inclined to find the defendant guilty of murder in the first degree.

‘You may go on from there.

‘I have considered the stipulation and the effect it would have upon the Court. My thinking on it and only a matter of thinking, as a matter of first intention, that the stipulation amounts to nothing that suggests a matter of first intention. It's perhaps novel and not common in cases of this type to know the effect of such stipulation.

‘It would obviously amount to an agreement of counsel but in the orderly system of jurisprudence, I doubt very much whether it could tie the hands of the Court or whether it could diminish or depreciate the jurisdiction of the Court.

‘Now I give you primarily those remarks to indicate the first impression and the last impression which I have received concerning the, and only concerning the facts of the case.’

The court then explained its theory of the case, and continued as follows:

‘Well, as I have said before, there are many things that can be said, I have tried to analyze the matter and we do not have to indulge these things further. I have, very obviously, gentlemen, exposed my thinking and I told you I was impelled to the conclusion this man was guilty of murder in the first degree. That is one man's opinion but there is no need to elaborate at all on that because I am going to keep my judgment within the fabric of the situation—murder in the second degree or manslaughter. The primary reason is, this man waived his right to trial by jury—based on that stipulation, so I have been impelled to the conclusion and still firm in my conviction, that the defendant is guilty of murder in the second degree and it is the decision of the Court that the defendant is guilty of murder in the second degree.

‘Such is the judgment and such is the finding of the Court.’

It is argued that the above remarks indicate that the proceeding was a mock trial conducted as if the appellant had entered a plea of guilty and thereby deprived the appellant of his constitutional rights. We cannot agree. The record indicates that evidence was presented for several days and that the court presided with proper fairness and impartiality. The record does not bear out appellant's contention that the court treated him as if the presumption of innocence did not apply. As to the stipulation, the trial court clearly indicated that it did not consider itself bound thereby. At best, the record reveals merely some ambiguity as to the effect of the stipulation, as it is not clear whether the court's finding was made pursuant to the stipulation or not. On appeal, all ambiguities must be resolved in favor of the judgment, unless an abuse of discretion is clearly shown. Even assuming that the court acted pursuant to the stipulation, and assuming that it would be error for a court to so act, it would be difficult to see any prejudice to the appellant who invited and supported the stipulation. cf. Gomez v. Superior Court, 50 Cal.2d 640, 328 P.2d 976. It is the duty of the appellant to demonstrate that the error prejudiced his cause. People v. Flores, 113 Cal.App.2d 813, 249 P.2d 66. Rather, in the instant case, it would appear that the effect of the stipulation, if any, was to help the appellant's cause. Assuming that the court ignored the stipulation and acted independent of it, there is no error.

Appellant also contends that he was never duly arraigned for judgment and properly sentenced. The record, however, shows that he was properly asked by the court if he had any legal cause to show why judgment should not now be pronounced against him; that he replied he had none and was duly and regularly sentenced.

We need not concern ourselves with appellant's other contentions which were raised generally without references to the record. People v. Cowan, 44 Cal.App.2d 155, 158, 112 P.2d 62; Rules on Appeal 15(a).

We conclude that the judgment finds support in the record before us.

Judgment affirmed.

I concur in the judgment, but solely on the ground that the stipulation was not given the effect of a guilty plea. The case was fully tried and defendant was found guilty of murder in the second degree, rather than of the lesser offense of manslaughter. The evidence fully warrants the finding. If the stipulation, not joined in by defendant personally, had been given any effect as a plea of guilty, I should vote to reverse (see People v. Davis, 48 Cal.2d 241, 256, 309 P.2d 1). But the record clearly establishes that the stipulation was not so treated.

KAUFMAN, Presiding Justice.

SHOEMAKER, J., concurs.