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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Gabriel Flores GALLEGOS, Defendant and Appellant.

Cr. 8397.

Decided: September 04, 1970

W. Keith Woodmansee, Walnut Creek, for appellant (Under appointment of the Court of Appeal). Thomas C. Lynch, Atty. Gen. of California, Robert R. Granucci, Richard N. Light, Deputy Attys. Gen., San Francisco, for respondent.

Defendant Gabriel Flores Gallegos appeals from a judgment based upon the trial court's finding that he was guilty of second degree burglary. (Pen.Code, §§ 459, 461.)

His principal contentions are (1) that the submission of his case to the court for decision on the transcript of his preliminary hearing, a sheriff's office ‘Crime Report,’ and a ‘Laboratory Report’ was tantamount to a plea of guilty; and (2) considered as a plea of guilty there was insufficient complance with the demands of Boykin v. Alabama (June 1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; In re Tahl (November 1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, and In re Mosley (January 1970) 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 473.

The record shows the following proceedings to have occurred on August 5, 1969:

‘[DEFENSE COUNSEL]: Mr. Gallegos is present in court represented by the public defender's office. At this time, Your Honor, we would ask permission to—at this time we would ask leave of the court to submit the matter for decision on the transcript of the preliminary hearing of guilt or innocence as to the charge of 459 stipulated second degree. I will voir dire Mr. Gallegos if the court desires.

‘THE COURT: Is that your true name, Gabriel Flores Gallegos?


‘THE COURT: You may voir dire.


‘Q. Mr. Gallegos, you understand that in this information you are charged with escape and with burglary?

‘A. Yes.

‘Q. And you are also charged with prior conviction of a felony, you understand that?

‘A. Yes.

‘Q. If we submit the matter on the transcript of the preliminary hearing, have I explained to you that the court will then read the transcript of the preliminary hearing, take that as evidence and decide your guilt or innocence on the charge of burglary, section 459 of the Penal Code, based solely on the contents of the transcript of the preliminary hearing?

‘A. Yes.

‘Q. In other words, no witnesses will be called for or against you, and you won't testify in your own behalf?

‘A. Right.

‘Q. That amounts to a waiver of a jury trial. And are you willing to waive your right to a jury trial at this time?

‘A. Yes.

‘Q. And you are willing to let the court consider the matter of your guilt or innocence based solely on the contents of this transcript; is that correct?

‘A. Yes.

‘THE COURT: People willing to stipulate that the burglary, if existent in this case, is burglary in the second degree?

‘[DISTRICT ATTORNEY]: Yes, Your Honor.

‘THE COURT: Mr. Gallegos, do you have any questions at all as to the procedure which is being followed here?

‘THE DEFENDANT: No, Your Honor.

‘THE COURT: You understand that what is going to happen, I am going to read this transcript, and I will then decide, based upon that evidence and only that evidence, whether you are guilty of burglary in the second degree?

‘THE DEFENDANT: Yes, Your Honor.

‘THE COURT: There will be no further evidence presented; do you understand that?

‘THE DEFENDANT: Yes, Your Honor.

‘THE COURT: Are you doing this freely and voluntarily?

‘THE DEFENDANT: Yes, Your Honor.

‘THE COURT: People willing to waive a jury trial?

‘[DISTRICT ATTORNEY]: People waive the jury, Your Honor.

‘THE COURT: Both sides waiving the jury in this case, the matter is submitted for decision on the transcript.’

The cause was then continued for announcement of decision to August 12, 1969. The record indicates no further proceedings until Auguse 12. On that day the following occurred:

‘THE CLERK: No. 5, People versus Gabriel Flores Gallegos.

‘[DEFENSE COUNSEL]: Yes, Your Honor, that matter is ready.

‘[DISTRICT ATTORNEY]: Ready, Your Honor.

‘THE COURT: This matter was previously submitted to me for decision based upon the transcript and additional information which was to be submitted to the court, and it was submitted to the court consisting of a crime report of the Santa Clara County Sheiff's Office, dated June the 15th, and a laboratory report, dated August the 7th.

‘[DISTRICT ATTORNEY]: At this time on the part of the People stipulate these additional matters might be considered as evidence in this matter.

‘[DEFENSE COUNSEL]: So stipulate.

‘THE COURT: * * * Is there any argument you wish to make, [Counsel]?

‘[DEFENSE COUNSEL]: No, Your Honor.

‘[DISTRICT ATTORNEY]: Submitted, Your Honor.

‘THE COURT: The Court having read and considered the material in this case finds the defendant Mr. Gallegos guilty of burglary as alleged in Count One. Further finds that the burglary is burglary in the second degree. On Count No. Two, the Court finds the defendant not guilty. There being no proof on the prior—it has not been admitted, has it?

‘[DEFENSE COUNSEL]: No, Your Honor.

‘THE COURT:—finds the prior not true. * * * august the 29th for report, probation and sentencing.’

The Attorney General in his brief has correctly set forth the evidence relating to the burglary charge which was before the trial court; we quote it verbatim.

‘Preliminary Hearing

‘On June 15, 1969, at about 4:00 a. m., John Quale, a thirteen year old paper boy, was packing papers at a Chevron station in Saratoga, California. June 15 was a Sunday. He heard the sound of breaking glass together with the sound of someone using a chisel against concrete. The noise came from a Safeway store which was located in a shopping center across the street from the Chevron station.

‘John did not immediately report what he had heard to anyone. He proceeded to deliver his first batch of papers. Upon returning to the station after delivering the first batch of papers, he saw a man running from near the door of the Safeway store. John was not sure how much time had elapsed since he had heard the breaking of glass, but his estimates ranged from 20 minutes to a half hour to one hour. The man was wearing a green sweater or jacket. Shortly thereafter, but exactly when is not clear, John told the father of a second paper boy of what he had seen and heard.

‘Just prior to 5:00 a. m. of the same morning, two police officers were patrolling the shopping center in which the Safeway store was located. It was still quite dark. The officers were patrolling with the headlights of their vehicle off.

‘The officers observed a 1962 Ford proceed into the shopping center from Blauer Avenue, which runs between the Chevron station and the shopping center. The headlights of the vehicle were off, and its trunk lid was partially open. The vehicle proceeded slowly in front of the Safeway store. The officers stopped the vehicle at the side of the store.

‘The driver of the Ford was appellant. He was breathing and swating heavily. He was wearing a green sweater. He had no identification. He falsely stated his name was ‘Tony Flores.’

‘While the officers were questioning appellant, the father to whom John Quale, the paper boy, related what he had seen and heard approached the officers and related the story to them. The officers observed that there was a window broken next to the door of the Safeway store, and that a number of cartons of cigarettes had been stacked in the aisle about four feet from thw window.

‘The officers observed that there was no back seat in applellant's car, providing a clear space from the trunk into the back seat area of the car, and that there was no spare tire in the car. They later discovered a lug wrench in the vehicle.

‘Crime Report ‘* * * Appellant had turned away from the officers before he was stopped in an apparent attempt to avoid them. He could give no reasons for his being in the shopping center.

‘Also found in appellant's vehicle were a 3-inch file, a leather punch, a pair of white gloves, and a butcher knife with a 10-inch blade.

‘The cartons of cigarettes stacked beside the broken window had come from the shelves of the store as well as from a stock room.

‘Laboratory Report

‘There were freshly broken particles of glass found in appellant's shoes which matched in density and light refraction characteristics the glass from the broken window. The lug wrench found in appellant's car had wood and paint transfer on it which matched in color and texture the wood and finish on a door jamb of the stock room inside the Safeway store. There were marks on the door jamb of the stock room which were similar in general characteristics to which could have been made by the lug wrench found in appellant's vehicle.’

Boykin v. Alabama, supra, 395 U.S. 238, 243–244, 89 S.Ct. 1709, 1712, holds that ‘Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination. * * * Second, is the right to trial by jury. * * * Third, is the right to confront one's accusers. * * *’ Such a waiver, Boykin states, is never presumed from a silent record, and trial courts must exercise the ‘utmost solicitude’ in making sure that a defendant ‘has a full understanding of what the plea connotes and of its consequence.'1

In re Tahl, supra, 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 584, 460 P.2d 449, 456, discussing and refining the rule of Boykin, holds that before a guilty plea may be accepted:

‘[T]he 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. [¶] However, where, as here, the accused has been present at voir dire and has heard the indictment read and the consequences in terms of penalty discussed, the court would not necessarily be expected to repeat each of those matter verbatim, a brief examination to ascertain defendant's understanding being sufficient. While much remains within the trial court's discretion, in light of the importance of the rights involved and the consequent exactitude with which constitutional guarantees must necessarily be protected, a trial court would be well advised to err on the side of caution and employ the time necessary to explain adequately and to obtain express waiver of the rights involved. At stake is the protection of both the accused and the People, the latter by the assurance that an otherwise sound conviction will not fall due to an inadequate record.’ (Emphasis added.)

The rule of Boykin and Tahl extends not only to guilty pleas. It is applicable to proceedings which, in their particular circumstances, have the practical effect of such pleas, or as said in In re Mosley, supra, 1 Cal.3d 913, 924, 83 Cal.Rptr. 809, 815, 464 P.2d 473, 479, are ‘tantamount to a plea of guilty.’ Such proceedings, depending upon their context, may take the form of a submission of the question of guilt or innocence on the transcript of a preliminary hearing. (In re Mosley, supra, p. 924, 83 Cal.Rptr. 809, 464 P.2d 473;2 People v. Wheeler, 260 Cal.App.2d 522, 526, 67 Cal.Rptr. 246.)

On Gallegos' voir dire examination of August 5, 1967 he expressly waived trial by jury, consented that he be tried solely on the testimony of the witnesses at his preliminary hearing, and thereby waived his right of confrontation and cross-examination of those witnesses. He also waived his Fifth Amendment rights. His counsel had made it clear that the question of guilt or innocence would be ‘based solely on the contents of the transcript.’ The court stated: ‘I am going to read this transcript, and I will then decide, based upon that evidence and only that evidence, whether you are guilty of burglary.’ It is certain that on that day Gallegos expressly agreed that his case might be tried on the testimony of the witnesses at the preliminary hearing—his stipulation went no further.

From the record of the preliminary hearing a finder of fact could reasonably conclude that Gallegos was probably up to some mischief, and yet entertain a reasonable doubt that it was he who had burglarized the Safeway store; he was identified by no one as the burglar, he possessed neither stolen goods nor burglar tools, and the evidence otherwise was wholly circumstantial.

On August 12, 1969, a different stipulation was entered into; pursuant to it the court could (and did) also consider the ‘Crime Report’ and the ‘Laborator Report.’ Defense counsel's contribution to the stipulation was the response ‘So stipulate.’ Gallegos himself remained silent.

The additional reports added much to the evidence against Gallegos. Glass particles which must have come from the store's broken window were found in his shoes. A tool found in his car had on it wood and paint transfers from the burglarized premises; its pointed end matched indentations made in the course of the unlawful entry. And cloth gloves which could prevent telltale fingerprints were found in Gallegos' possession. The evidence against him no longer appeared susceptible of an innocent interpretation; from it any reasonable trier of fact must inevitably conclude that Gallegos was the burglar.

The stipulation of August 12, 1969, under the facts and circumstances we have outlined, must reasonably be said to be ‘tantamount to a plea of guilty.’ (See In re Mosley, supra, 1 Cal.3d 913, 924, 83 Cal.Rptr. 809, 815, 464 P.2d 473, 479.) The stipulation was not ‘elicited from the person of the defendant’ as required by In re Tahl, supra, 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 584, 460 P.2d 449, 456. It follows that Gallegos did not waive his right of confrontation of the witnesses who perceived and related the inculpatory matters described in the ‘Crime Report’ and ‘Laboratory Report,’ as required by Boykin, supra, Tahl, supra, and Mosley, supra. From the rules announced in Boykin, Tahl, and Mosely, it follows that the failure to elicit the constitutionally required waiver ‘from the person of the defendant’ must result in reversal of the judgment.

We conisder it proper to point out, and emphasize, the following language of In re Tahl, supra, 1 Cal.3d 122, 132–133, 81 Cal.Rptr. 577, 584–585, 460 P.2d 449, 456–457: ‘[A]n express waiver on the record has long been required in regard to the right to a jury trial; there appears no sound reason why the court should not likewise advise the accused as to, and obtain an express waiver of, his rights to confrontation and against self-incrimination prior to acceptance of his plea of guilty. We have no doubt that in the course of a trial a waiver of constitutional rights may be implied and need not necessarily be preceded by a full explanation of each right and its consequences. (See People v. Evanson (1968) supra, 265 Cal.App.2d 698, 701–702, 71 Cal.Rptr. 503.) But in proceedings related to a formal plea, at which time the court is required at a minimum to ascertain whether the plea is knowingly made without threat or inducement, it is salutary for the court at the same time to explain the full import of his guilty plea to the accused. Something short of this procedure may, in a proper context, be held sufficient; on that we need not rule today. However, in this post-Boykin milieu courts and prosecutors are forewarned and will be wall advised to avoid any such uncertainty and to produce for the record the required information. * * *’ (Emphasis added.) As we have indicated, by virtue of In re Mosley, supra, 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 473, this admonition is often applicable to criminal cases submitted for decision on the testimony of a preliminary hearing; trial courts would also be ‘well advised’ to follow it in all such cases.

We shall discuss Gallegos' remaining contention since it may be raised on his retrial. He argues that his ‘initial detention by police was without reasonable cause, thus invalidating admission of the evidence wpon which he was convicted.’

It is well established that police officers in the discharge of their duties may detain and question a person when the circumstances are such as would indicate to a reasonable man in like position that such a course is necessary to the proper discharge of those duties. (People v. One 1960 Cadillac Coupe, etc., 62 Cal.2d 92, 95–96, 41 Cal.Rptr. 290, 396 P.2d 706; People v. Mickelson, 59 Cal.2d 448, 450–451, 30 Cal.Rptr. 18, 380 P.2d 658; People v. Singletary, 268 Cal.App.2d 41, 44, 73 Cal.Rptr. 855.) Here the police at 5 a. m. saw Gallegos driving an automobile with lights out and trunk open in a shopping center. When seen he tried to avoid them. He had no identification and could give no reason for being where he was. His detention was clearly reasonable. During his detention the police learned of the burglary a short time before of a nearby store; they then had probable cause for Gallegos' arrest. There is no merit to the instant contention.

The judgment is reversed.

I dissent.

I concur in the conclusion that the evidence supports the implied findings that there was reasonable cause to detain the defendant, and probable cause for his subsequent arrest. The decision also properly points out that the thorough voir dire by the public defender and the court established that the defendant knowingly and intelligently waived the right to trial by jury, and knowingly and intelligently waived his right to again confont and cross-examine the winesses against him by consenting to the submission of his case on the record of the preliminary examination. No question arises concerning the defendant's Fifth Amendment right against compulsory self-incrimination, because he has made no affirmation of his guilt as is the case with a guilty plea. (See Boykin v. Alablama (1969) 395 U.S. 238, 243–244, 89 S.Ct. 1709, 23 L.Ed.2d 274; McCarthy v. United States (1969) 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418; In re Tahl (1969) 1 Cal.3d 122, 130, 81 Cal.Rptr. 577, 460 P.2d 449; People v. McFadden (1970) 4 Cal.App.3d 672, 689–690, 84 Cal.Rptr. 675; and People v. Franco (1970) 4 Cal.App.3d 535, 540, 84 Cal.Rptr. 513.)

The crux of the case is the efect of the subsequent stipulation by defendant's counsel that the ‘Crime Report’ and the ‘Laboratory Report’ might be considered as evidence in the case. The majority by an extension of the dictum in In re Mosley (1970) 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 473, conclude that since the facts revealed by the stipulated evidence could offer the defendant no hope of acquittal, the stipulation was tantamount to a plea of guilty, and should, therefore, have been accompanied by the constitutional and statutory safeguards which such a plea entails tory safeguards which such a plea entails (see 1 Cal.3d at p. 927, 83 Cal.Rptr. 809, 464 P.2d 473), particularly a personal waiver of the right to confront the witnesses who perceived and related the inculpatory matters described in the report.

In my opinion there was no error in the proceedings before the trial court.

In the first place, the record ‘manifests no objection on petitioner's part either at the time of the stipulation (cf. Brookhart) [Brookhart v. Janis (1966) 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314]) or at the time of the court's finding of guilt (cf. Wheeler [People v. Wheeler (1968) 260 Cal.App.2d 522, 67 Cal.Rptr. 246]).’ (See In re Mosley, supra, 1 Cal.3d at p. 925, 83 Cal.Rptr. at p. 815, 464 P.2d at p. 419; and People v. McFadden, supra, 4 Cal.App.3d 672, 692, 84 Cal.Rptr. 675.)

Secondly, defendant's conduct at the time the matter was originally submitted on the record of the preliminary examination considered together with his knowledge of the evidence which had been produced against him at that examination, in my opinion, does not leave room for speculation that he was not fully aware of the import of submitting the case without further testimony. In contrast to the opinion of the majority, I believe, ‘To argue that he harbored the hope of acquittal in such circumstances is to argue the incredible. (Cf. In re Tahl, 1 Cal.3d 122 at p. 135, fn. 12, 81 Cal.Rptr. 577, 460 P.2d 449 * * *)’ (In re Mosley, supra, 1 Cal.3d at pp. 925–926, 83 Cal. Rptr. at p. 816, 464 P.2d at p. 480; and see People v. McFadden, supra, 4 Cal.App.3d 672, 692, 84 Cal.Rptr. 675.) The circumstantial evidence revealed by the testimony at the preliminary hearing, including that relating to his unexplained flight at the time of his arraignment before a magistrate, demonstrates that the defendant in his initial waiver of rights realized that he was entering into a stipulation which was tantamount to a plea of guilty.1

The reports subsequently introduced were the frosting on the cake, and it was undoubtedly the knowledge of the existence of the laboratory report which led to the original concession which was openly and fully acquiesced in by the defendant personally.

In the third place, the principle enunciated by the majority places an unwarranted, unnecessary, and perturbational restriction upon the right of counsel to make any tactical decisions in connection with the representation of a defendant. In People v. Evanson (1968) 265 Cal.App.2d 698, 71 Cal.Rptr. 503 (hearing denied), the 698, 71 Cal.Rptr. 503 (hearing denied), the defendant contended ‘that the judge should not have accepted a waiver of trial by jury without first fiving him full advice concerning his rights and ascertaining through a procedure comparable to that required for an effective waiver of counsel that the waiver was competent.’ (265 Cal.App.2d at p. 701, 71 Cal.Rptr. at p. 505.) The court distinguished the two situations, and observed, ‘* * * where a defendant is reprented by counsel it is to be expected that counsel will intentionally refrain from asserting, or advise waiver of, certain constitutional rights from time to time in his choice of defense tactics. It is not necessary that whenever such a tactical waiver occurs the court interrupt the proceedings to advise defendant of the right which is to be waived and question him to ascertain whether the waiver is made with full appreciation of the consequences.’ (Id., pp. 701–702, 71 Cal.Rptr. p. 505. See also People v. Chasco (1969) 276 A.C.A. 317, 321, 80 Cal.Rptr. 667 [hearing denied]; and Witkin, Cal.Crim.Proc. (1969 Supp.) Trial, § 378A, p. 213.)

The views expressed in Evanson have been approved in In re Tahl, supra, (1 Cal.3d at pp. 129 and 133, 81 Cal.Rptr. 577, 460 P.2d 449), and People v. McFadden, supra, (4 Cal.App.3d at p. 690, 84 Cal.Rptr. 675). They are echoed in In re Mosley, supra, where the court made the following observations concerning the defendant's right to confront the witnesses against him: ‘That right may be waived wholly or in part by the accused—either by a personal assertion of waiver or by aequiescence in a waiver undertaken by his counsel; it may also in some circumstances be waived in part by counsel without the consent of the accused, as when counsel makes a ‘tactical decision’ not to cross-examine a particular witness or not to place the accused on the stand. However, the fundamental right may not be waived in its entirety by counsel—only the accused himself can do this, either by express waiver or by acquiescence in a waiver undertaken on his behalf by counsel. Accordingly, the right cannot be waived in its entirety by counsel over the objection of the accused by entering into stipulations which, in the circumstances of the particular case, are tantamont to a plea of guilty.' (1 Cal.3d at p. 924, 83 Cal.Rptr. at p. 815, 464 P.2d at p. 479.)

In People v. Chasco, supra, the court anticipated In re Mosley, supra. It observed, ‘* * * we think that the problem whether constitutional rights can be effectively waived by counsel without the client's express and intelligent consent must be examined in the light of Boykin v. Alabama, * * *’ (276 A.C.A. at p. 320, 80 Cal.Rptr. at p. 670.) The defendant contended that he was entitled to confront all of the witnesses against him, not just some; and that there was nothing in the record to show that he, as distinguised from his attorney, intelligently and competently waived this right when his privately retained counsel stipulated that two balloons, containing a white powdery substance, which an undercover officer testified participated in purchasing from the defendant contained the narcotic heroin. The appellate court disposed of the proposition that an attorney may not stipulate to a crucial point in the law suit by reference to the fact that the defendant denied ever selling any balloon or ever dealing with the undercover agent. The issue was whether or not the balloons were ever sold and delivered by the defendant, not their content. (Id.) The court met the question of confrontation as follows:

‘Trials should be triable. Almost every record we see shows that by a waiver of one constitutional right or another the prosecution's burden has been simplified. A good proportion of these waivers are simply made by counsel. Rarely does the record show whether counsel's apparent accommodation is prompted by trial tactics, negligence of sheer ignorance of the existence of the right. If it really follows from Boykin that every purported waiver of every constitutional right must be affirmatively shown to have been personally and intelligently made by the client, it would be necessary to stop the proceedings and have a hearing on that question every time the attorney declines to cross-examine a witness or fails to object to inadmissible evidence. Indeed, logically it might even follow that the record must show intelligent, personal waivers of constitutional rights not necessarily applicable, for who knows what a more vigorous cross-examination or the production of an additional witness might show.

‘The solution lies not in logic, but in practicalities. After all, the question is not whether the courts should permit a deprivation of a federal constitutional right to go without redress; rather it is the extent to which, on direct appeal, the trial record must negative possible violations. In Boykin the court held that when the conviction is based on a guilty plea, the record must so show; but, as the dissent points out, even if the court had held otherwise, Baykin could have attempted to esablish in habeas corpus proceeding that he pleaded in ignorance. As long as collateral relief is available the question becomes simply this: when does the need of the trial court to get on with its business take a back seat to the desirability of negativing the need for such further proceedings.

‘In the case we deal with a simple stipulation of fact, not fatal to the defense or even contradictory to the defendant's position at the trial. We are convinced that in such a case the Constitution does not demand affirmative demonstration that it has not been violated. Just where the line between a guilty plea and a stipulation of fact such as ours should be drawn, we need not attempt to determine. There may be stipulations of fact so destructive of the accused's position at the trial that to permit them to be made without a showing of his intelligent consent is to court reversal. This is not such a case.’ (Id., pp. 320–322, fns. omitted, 80 Cal.Rptr. pp. 670–671.)

Here the majority have assumed that the stipulations of fact were so destructive of the accused's position at the trial that to permit them to be made without showing of the defendant's intelligent consent is ipso facto a denial of his constitutional right to confront the witnesses against him and requires a reversal. This conclusion does not necessarily follow. There may be no triable issue concerning the facts in the ‘Crime Report’ or the ‘Laboratory Report.’ Since one can only expect effective legal representation if he makes full disclosure of all facts to his attorney, we are entitled to assume, in the absence of any showing to the contrary, that the defendant was unable to furnish counsel with any grounds for contesting the veracity of what was set forth in the reports. (See People v. Ross (1968) 268 Cal.App.2d 525, 529, 74 Cal.Rptr. 99; and People v. Silva (1968) 266 Cal.App.2d 165, 72 Cal.Rptr. 38.) The concessions obtained as to the other charges, and the hope of leniency may well have dictated the course taken by counsel. From all that appears he may have investigated and ascertained that the compilers of the reports would in fact have testified in accordance with the recitals.

The extension of the decision In re Mosley to every stipulation concerning facts is apt to place an unwarranted burden on the administration of justice. If investigaton reveals certain facts to be true, there is no justifiable purpose in requiring proof by witnesses in open court. To so require is to strengthen the hand of those who would destroy our system of justice by attacking its slow and cumbersome processes, and by branding as pettifoggery its insistence on procedural and substantive law which protects constitutional rights. The court-wise defendant will always insist on the production of the last shred of evidence in the hope that some innocent slip of the witness will cast reasonable doubt on whether the laboratory specimen can be fully accounted for, or whether some witnesses' recollection is faulty. The conscientious counsel will not be able to stipulate to anything for fear that subsequent events will produce a charge of incompetency. The defense consel should be manager of the law suit. (See People v. Foster (1967) 67 Cal.2d 604, 606, 63 Cal.Rptr. 288, 432 P.2d 976; People v. Dessauer (1952) 38 Cal.2d 547, 552, 241 P.2d 238; People v. Maugh (1969) 1 Cal.App.3d 856, 864, 82 Cal.Rptr. 147; People v. Rodriguez (1969) 275 A. C.A. 1064, 1072, 80 Cal.Rptr. 397; People v. Ross, supra, 268 Cal.App.2d 525, 529–530, 74 Cal.Rptr. 99; People v. Sartain (1968) 268 Cal.App.2d 486, 490–491, 73 Cal.Rptr. 799; People v. Silva, supra, 266 Cal.App.2d 165, 171–175, 72 Cal.Rptr. 38; People v. Evanson, supra, 265 Cal.App.2d 698, 701, 71 Cal.Rptr. 503; People v. Cruz (1966) 244 Cal.App.2d 137, 140, 53 Cal.Rptr. 354; and People v. Andrews (1965) 234 Cal.App.2d 69, 77–79, 44 Cal.Rptr. 94.) In any event, the receipt of a report pursuant to the stipulation of counsel without objection of the defendant who is then present, should be deemed a waiver of the right to confront and cross-examine the witness who compiled the report. (See People v. Dessauer, supra, 38 Cal.2d 547, 552, 241 P.2d 238; and People v. Maugh, supra, 1 Cal.App.3d 856, 864, 82 Cal.Rptr. 147.) If counsel, by stipulating, deprives the defendant of a constitutional right, the defendant, as set forth below, has his remedy by collateral attack.

Finally, if In re Mosley is to be applied so as to require a knowing and intelligent personal waiver from the defendant before counsel may waive any point which may incriminate (for who can tell what is tantamount to gutil the record is finally made and reviewed?), it should only be applied to cases ensuing after it was decided, January 30, 1970.

In re Tahl, supra, reviews McCarthy v. United States, supra, 394 U.S. 459, 89 S.Ct. 1166, in which the requirements of Rule 11 of the Federal Rules of Criminal Procedure regarding acceptance of a guilty plea were held to be mandatory, and Halliday v. United States (1969) 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16, in which it was held that only those defendants whose guilty pleas were accepted after April 2, 1969, the date of the decision in McCarthy, were entitled to plead anew if their plea was accepted without full compliance with Rule 11. The Supreme Court of this state concluded, by analogy to the rationale of Halliday, that ‘Boykin v. Alabama and the procedures adopted herein must be given prospective application only, i. e., to those cases in which pleas were entered subsequent to the effective date of that decision [June 2, 1969].’ (1 Cal.3d at p. 135, 81 Cal.Rptr. at p. 586, 460 P.2d at p. 458.) Therefore, I conclude that the rule of In re Mosley, supra, insofar as it requires that all of the constitutional and statutory safeguards which are entailed in connection with a plea of guilty to accompany a stipulation by counsel as to evidence which is tantamount to a plea of guilt, should be limited to cases in which such a stipulation was entered into after January 30, 1970, the date of the decision in Mosley. The court in Mosley recognized it was charting new paths when it said, ‘We think it clear, however, that Boykin and Brookhart, taken together, require that in the future 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, his right to trial by jury, and his right to confront his accusers. (See Boykin v. Alabama, supra, 395 U.S. 238, 243–244, 89 S.Ct. 1709 * * *)’ (1 Cal.3d at p. 926, fn. 10, 83 Cal.Rptr. at p. 816, 464 P.2d at p. 480, emphasis added. See also People v. McFadden, supra, 4 Cal.App.3d 672, 689–692, 84 Cal.Rptr. 675.)

In Halliday, the United States Supreme Court pointed out that the purposes of securing a personal waiver of each and every constitutional right in connection with a guilty plea are ‘(1) to insure that every defendant who pleads guilty is afforded Rule 11's procedural safeguards, which are designed to facilitate the determination of the voluntariness of his plea; (2) to provide a complete record at the time the plea is entered of the factors relevant to this determination, thereby enabling a more expeditious disposition of a post-conviction attack on the plea.’ (394 U.S at p. 832, 89 S.Ct. at p. 1499, 23 L.Ed. at p. 20.) The court pointed out that if in fact there was a constitutional defect in a defendant's conviction, he could raise it by collateral attack. It noted that the McCarthy rule changed existing practice, and so it declined to apply McCarthy retroactively. The court adopted this approach to the Boykin rule in the Tahl case (1 Cal.3d at pp. 133–135, 81 Cal.Rptr. 577, 460 P.2d 449).

The Mosley case recognizes the existing practice with respect to the right of confrontation. ‘The right may be waived, however, and in numerous cases it has been held that no infringement thereof results when defense counsel, in defendant's presence and without objection by him stipulates at trial that testimony given at the preliminary examination, as reflected in the transcript thereof, shall be given the same force and effect as though the witnesses had so testified at trial. [Citations.]’ (1 Cal.3d at p. 921, 83 Cal.Rptr. at p. 813, 464 P.2d at p. 477.) After examining Brookhart v. Janis, supra, 384 U.S 1, 86 S.Ct. 1245 and People v. Wheeler, supra, 260 Cal.App.2d 522, 67 Cal.Rptr. 246, cases in which the defendant had personally waived a jury trial, but had voiced an objection to proceeding on a stipulated record, the court concluded, ‘* * * the right cannot be waived in its entirety by counsel over the objection of the accused by entering into stipulations which, in the circumstances of the particular case, are tantamount to a plea of guilty.’ (Id., 1 Cal.3d p. 924, 83 Cal.Rptr. p. 815, 464 P.2d p. 479.) If this rule is applicable to the stipulation entered into by counsel in this case, it is a qualification of the prior rule that counsel may enter into stipulations concerning the evidence. (See People v. Foster, supra, 67 Cal.2d 604, 606, 63 Cal. Rptr. 288, 432 P.2d 976, and related cases cited above.) As such it should be prospective in application.

This is not to say that defendant is without his remedies. If he can show that the facts revealed by the ‘Crime Report’ and the ‘Laboratory Report’ were contrived or controvertible and that his counsel's stipulation was made over his objection, or with knowledge that there was evidence to the contrary, he may have some right to attack the judgment collaterally.

In People v. Chasco, supra, the court stated, “As already noted, defendant is not without a remedy. If he can adequately allege that his attorney's stipulation deprived him of the right to confrontation without a constitutionally valid waiver, he would undoubtedly be entitled to an evidentiary hearing on habeas corpus. Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508, held that Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 was to be given ‘fully retroactive application.” (276 A.C.A. p. 965, fn. omitted, 80 Cal.Rptr. p. 671.)

‘By pointing to habeas corpus as an available remedy we by no means intimate that defendant would be entitled to a retrial simply on a finding that he did not personally and intelligently waive his right to confrontation. He would still have to overcome problems arising out of the attorney's power to adopt trial strategy except ‘where the circumstances are exceptional.’ (Henry v. Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564, 13 L.Ed.2d 408), harmless error rules (Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705) and so forth.

‘Indeed, the complexities of the issues in a habeas corpus hearing illustrate the absurdity of requiring the making of a series of records of intelligent waivers in the middle of criminal trials. Further, defendants may derive positive benefits from being relegated to habeas corpus. One example is enough: suppose the attorrney and the defendant have not, in fact, discussed a particular stipulation which the attorney wants to make. If it is of the type which requires the personal consent of the defendant and if the court inquires into the existence of such consent during the trial, the defendant's responses to the court's inquiry may well conform to what he believes his lawyer wants him to say, rather than to the truth. A searching factual hearing on habeas coupus is far more likely to establish the true nature of a purported waiver of a constitutional right than are formula responses made during the trial.’ (276 A.C.A. at pp. 322–323, as modified p. 965, 80 Cal.Rptr. at p. 671.)

For the foregoing reasons I would affirm the judgment.


1.  We note that the case at bench was tried after the announcement of Boykin v. Alabama, supra, which operates prospectively only. (See In re Tahl, supra, 1 Cal.3d 122, 133, 81 Cal.Rptr. 577, 460 P.2d 449.)

2.  In re Mosley, supra, 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 473, makes it clear that ‘Reference to the facts of the particular case is necessary,’ and that submission on a preliminary hearing transcript is not necessarily the equivalent of a guilty plea. (See fn. 9, p. 924, 83 Cal.Rptr. p. 815, 464 P.2d p. 479.)

1.  The case was submitted without argument at the original hearing August 5, 1969 and continued to August 7, 1969. continued to August 12, 1969. There is no transcript of the proceedings on that day, but the minutes reflect it was continued to August 12, 1969. On that date the second stipulation was entered into by defendant's counsel and the matter was then submitted again without argument. The record suggests that the disposition was part of an arrangement under which the burglary would be of the second degree, a second count, of escape and a charged prior would be dismissed for lack of evidence, and doctors would be appointed, presumably to evaluate the propriety of treatment, other than commitment to the state prison, for defendant. There is not transcript of the proceedings on August 29, 1969 when defendant was denied probation and sentenced.

ELKINGTON, Associate Justice.

MOLINARI, P. J., concurs.

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