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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Glenn Allan REILLY, Defendant and Appellant.

Cr. 16323.

Decided: March 23, 1970

Donald F. Roeschke, Woodland Hills, under appointment by the Court of Appeal, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., James H. Kline, Deputy Atty. Gen., for plaintiff and respondent.

Glenn Allan Reilly was charged with the murder of Wanda Lee Orr on 21 November 1967 (Pen.Code, § 187). The trial court, sitting without a jury, found him guilty of voluntary manslaughter (Pen.Code, § 192.1) after the cause had been submitted on the transcript of the preliminary hearing and on evidence presented by the prosecution during a partial jury trial. On appeal defendant argues there was no substantial evidence to support the finding that he killed Mrs. Orr.

Between 9 and 9:30 a. m. on 21 November 1967 an employee of the Showboat Bar in Torrance saw defendant Reilly and Mrs. Orr standing in the rain near a station wagon parked behind the bar. The two struggled, then Reilly slapped Mrs. Orr around her shoulders and face, grabbed her, and forced her into the car. As Reilly got in one side of the automobile Mrs. Orr jumped out the other and ran away. Reilly then drove off.

A few minutes later Griffin Spencer met Mrs. Orr in the nearby Flamingo Bar, and he remained with her that day until about 8:30 p. m. When he first saw her she had bruises on her thigh, on her knees, and on her ankles but none on her face and arms. That morning she had been intoxicated, but when he drove her home that night she was sober. Spencer and Mrs. Orr arrived at her house sometime between 8 and 8:30 p. m. The house was dark, the door was unlocked, and Reilly was seated in the kitchen. Mrs. Orr told Reilly that if he didn't leave she would call the police, but when she started to pick up the telephone Reilly threatened to rip it off the wall if she tried to use it. Mrs. Orr and Reilly then walked outside. Spencer stayed inside the house eating chocolate cake. Moments later he heard Mrs. Orr scream, and when he went to the front door, he saw Reilly strike Mrs. Orr in the face four or five times with his fist and knock her to the ground. Spencer noticed a bruise on Mrs. Orr's face that he had not seen earlier. Mrs. Orr left, Spencer resumed eating his chocolate cake, and Reilly came back into the house and told Spencer to leave because the police would arrive shortly. Spencer left. He had been there about 30 minutes.

Mark Orr, the victim's 18-year-old son, lived in the house with his mother, but on the nights of 20 and 21 November he stayed at his father's motel room. About 8:30 or 8:40 p. m. on the 21st, Mark went to his home and saw Reilly, a frequent visitor, seated at the kitchen table apparently sobbing. Mark left without looking in any other part of the house and without seeing his mother and went to his father's motel room. When his father arrived five minutes later, Mark told him that he had seen Reilly at his mother's house. Although there was a telephone in the room, his father went out, saying he was going to telephone the police about Reilly's presence at the house, and he did not return to the room for 30 or 40 minutes . Next morning Mark went to his home about 7:45 a. m. and found its doors and windows locked. Through a window he saw his mother lying in bed, her face cut and bruised. Mark broke in through a window, discovered his mother was dead, and phoned his father and the Torrance police.

Dr. Kenneth Chapman, who performed an autopsy on Mrs. Orr's body for the Los Angeles County Coroner on 23 November 1967, attributed the cause of death to multiple injuries of the head, chest, and abdomen, including a lacerated aorta and liver. There were also superficial lacerations of the external genitalia and a laceration of the wall of the vagina, indicating some sort of assault involving the sexual organs. The time of death could not be fixed because the body had been embalmed prior to the autopsy.

Defendant made no statement, presented no defense, and did not take the stand.

The above summarizes the entire evidence about the crime and the identity of its perpetrator. We believe this evidence insufficient to sustain the conviction of the defendant for homicide. To support a conviction evidence must be ‘substantial,’ ‘i. e., evidence that reasonably inspires confidence and is ‘of solid value’ * * *' (People v. Bassett, 69 Cal.2d 122, 139, 70 Cal.Rptr. 193, 204, 443 P.2d 777, 788.) ‘[T]his test has perhaps most frequently been invoked in holding insufficient the evidence of identity purporting to connect defendant with the crime [citations] * * *’ (Id. at 139, 70 Cal.Rptr. at 204, 443 P.2d at 788.) Here the evidence connecting defendant with the crime established that he was a frequent companion of the victim, had quarreled with and beaten her twice on 21 November, and had been in her house the evening before the discovery of her body on the morning of 22 November. While this evidence makes defendant a prime suspect, ‘[e]vidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact. * * * The prosecution's burden is a heavy one: ‘To justify a criminal conviction, the trier of fact must be reasonably persuaded to a near certainty. The trier must therefore have reasonably rejected all that undermines confidence.’ (People v. Hall, supra, 62 Cal.2d 104 at p. 112, 41 Cal.Rptr. 284 at p. 112, 396 P.2d 700 at p. 705.)' (People v. Redmond, 71 A.C. 775, 785, 79 Cal.Rptr. 529, 534, 457 P.2d 321, 326.)

At bench the time of death was never established. The whereabouts of the victim's husband, the whereabouts of Spencer, and the whereabouts of defendant during the evening of 21 November and the early morning of 22 November were not shown and remain a matter of speculation. Evidence cannot be considered ‘substantial‘ which leaves unresolved the many conflicting possibilities present here as to the time of the killing, the circumstances and mode of the killing, the provocation therefor, and the identity of the killer.

Defendant's failure to deny the crime cannot form the basis for an inference of his guilt. (Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.) It logically follows that defendant's failure to present a defense during the trial of the cause cannot be used to bolster up the shortcomings of the prosecution's case. (People v. Ashley, 42 Cal.2d 246, 268–269, 267 P.2d 271; cf. Pen.Code, §§ 1118, 1118.1.) If, as is true, the trial court is required to order an acquittal at the close of plaintiff's case when the evidence then before the court is insufficient to sustain a conviction, an appellate court must necessarily apply a comparable rule in reviewing under similar circumstances the substantiality of the evidence in support of a conviction. Neither court can take into account as evidence of guilt defendant's failure to present a defense. If the evidence in a case is sufficient to sustain a conviction, there is no need for a court to rely upon the lack of a defense; if it is sufficient, lack of a defense cannot save an unsupported finding of guilt. (People v . Ashley, supra, p. 269, 267 P.2d 271; Pen.Code, § 1118.1.)

Our brother Herndon suggests that the submission of the cause by the defendant on a partial record was equivalent to a plea of guilty. We agree with him that it is most probable that some agreement had been reached between court and counsel on the disposition of the charge. However, the difficulty with accepting a probable agreement on disposition as equivalent to a plea of guilty (and hence rendering superfluous any review of the substantiality of the evidence) is that no agreement was made part of the record, and nothing indicates that defendant himself became a party to such an agreement. Pleas must be made in open court by the defendant personally (Pen.Code, § 1018), and in view of the increasingly stringent requirements attached to the acceptance of guilty pleas, we do not believe that statutory and constitutional safeguards governing the entry of such pleas may be waived by implication. (Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; In re Tahl, 1 Cal.3d 122, 130–133, 81 Cal.Rptr. 577, 460 P.2d 449; cf. Proposed Rule 810, California Rules of Court, 45 State Bar J. 45.) Accordingly, disposition of the cause must be justified by the evidence before the court, and we must consider the substantiality of that evidence in relation to the finding. So considered, we conclude there is no substantial evidence of guilt and no evidence of solid value to support the finding. (People v. Redmond, 71 A.C. 775, 785, 787, 79 Cal.Rptr. 529, 457 P.2d 321.) We see nothing contradictory in In re Mosley, 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 473, where the victime of the crime gave direct testimony about the assault with which the accused was charged and where the existence of substantial evidence against the accused was undisputed.

The judgment is reversed.

I dissent.

It is my opinion that the record in this case not only discloses evidence sufficient to support the trial court's finding beyond a reasonable doubt that defendant Reilly killed Wanda Orr, but it also discloses circumstances which demonstrate to a practical certainty that defendant's stipulation to waive the jury which had been impaneled and to submit the case to the court on the transcript of the preliminary examination and on the testimony theretofore taken was tantamount to a plea of guilty to manslaughter. (Cf. In re Mosley, 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 473.)

Sufficiency of the Evidence

Although the testimony of each of the witnesses for the prosecution is summarized in the majority opinion with reasonable accuracy, these brief summaries do not begin to convey the incriminating impact that is gained from a reading of the transcript . The testimony of these witnesses was remarkably clear and consistent. Their cross-examination by defense counsel was unusually extended and detailed, but it accomplished nothing but to strengthen and emphasize incriminating details.

Two prosecution witnesses described in vivid detail the savage and inhuman treatment which appellant inflicted upon his female victim during the morning preceding the night of the homicide and again in the late evening of the same day. In the course of the morning episode he struck her about the face and body, forced her into his station wagon and started to drive away. Her mortal fear of him was dramatically evidenced by the manner in which she jumped from his moving car, fell to her hands and knees, got up and ran across the parking lot, around a building and up an alley in order to make her escape.

About 8:30 p. m. on the night of the homicide the witness Spencer took the decedent to her home. The house was dark but appellant was found seated in the kitchen. When Mrs. Orr told him to leave or she would call the police, he threatened to ‘rip the phone off the wall.’ Shortly thereafter he added to his sordid record of assault and kidnapping another aggravated assault upon the same female victim.

Added to this evidence of appellant's savage and inhuman propensities, his disposition to visit his wrath upon this particular victim, her great fear of him and the nature of the injuries which caused her death, we have the eloquent picture of appellant sobbing while seated in a chair in the victim's home late on the night of the homicide.

Adding persuasiveness and ‘lending weight to the evidence presented by the prosecution’ which made out a prima facie case, there was the significant failure of appellant to testify or to offer any evidence. In considering this strongly incriminating evidence introduced by the prosecution, the trier of the facts ‘could then consider defendant's failure to deny, or explain that evidence in determining the weight it was to be given.’ (People v. Ashley, 42 Cal.2d 246, 269, 267 P.2d 271; see also, People v. McFarland, 58 Cal .2d 748, 756–757, 26 Cal.Rptr. 473, 376 P.2d 449.)

Further consideration will be given to appellant's failure to testify or to offer any evidence, since I regard it as one of the many circumstances indicating that his stipulation to submit the case in the manner shown by the record constituted a ‘slow plea’ of guilty of manslaughter. First, however, I shall review the proceedings in the trial court which in my opinion demonstrate the true purpose and intent of the stipulation.

In Some Circumstances a Stipulation to Submit on a Transcript of the Preliminary Examination is Tantamount to a Plea of Guilty

In re Mosley, supra, 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 473, presents a very interesting case in which our Supreme Court recently concluded ‘without hesitation that the stipulation entered into by counsel to submit the case on the transcript of the preliminary examination was, in the circumstances of [that] particular case, tantamount to a plea of guilty’ to a charge of assault by means of force likely to produce great bodily injury, a lesser offense than assault with a deadly weapon, the latter being the offense with which Mosley had been charged.

Although the facts and circumstances as recited in Mosley obviously are different from those of the case at bench, there are striking procedural similarities and, most important, Mosley establishes the realistic proposition that when the circumstances of a given case demonstrate that a stipulated submission on the contents of a specified record was tantamount to a plea of guilty, an appellate court should treat it accordingly.

Procedural Circumstances of the Submission

Five witnesses called by the People had testified at the preliminary examination in this case; they were Wilma Mooer, Griffin W. Spencer, David K. Frawley, Mark Orr, and Dr. Kenneth Chapman. The trial was commenced on Monday, May 20, 1968. A jury was selected and sworn and on Tuesday, May 21st, Wilma Mooer was called as the first witness for the prosecution. The witnesses Mooer and Frawley were examined and cross-examined and the direct examination of Mark Orr was commenced on the same day.

The examination of Mark Orr, the victim's son, took almost the entire morning of Wednesday, May 22, 1968. After extensive cross-examination defense counsel indicated that Mark could be excused but desired to have him remain available. The prosecutor agreed, indicating that he would ‘contact Mr. Orr and have Mark come down when needed.’ This reference to Mr. Orr indicates that the victim's estranged husband was available although not called as a witness. Mr. Keir, the deputy district attorney, then stated, ‘Your Honor, our next witness is flying in from Mississippi and won't be in until 12:30.1 I could call someone out of order. I would ask leave of court to take the next witness off the stand when our other witness comes in from out of town.’ Thereupon, at 11:37 a. m. the trial was recessed until 1:30 p. m. Upon resumption of the trial after the noon recess there ensued the following significant proceedings:

‘THE COURT: People versus Glen Allan Reilly. The record will show the defendant and his counsel are present; the jury is present and in the box. MR. KEIR: People are ready. MR. MAC CABE: Does your Honor have a copy of the transcript? THE COURT: Yes. MR. MAC CABE: We are willing to waive jury. THE COURT: All right. Would you take the waiver? MR. KEIR: Glen Allan Reilly, you understand you are entitled to a jury trial of 12 people but this is a right you may give up or waive. Do you understand that? THE DEFENDANT: Yes. MR. KEIR: You have discussed the matter of waiving jury with your attorney, Mr. Mac Cabe? THE DEFENDANT: Yes. MR. KEIR: Has he explained to you you a right to a jury trial? THE DEFENDANT: Yes . MR. KEIR: Do you now waive or give up your right to a jury trial? THE DEFENDANT: Yes. MR. MAC CABE: Counsel joins. MR. KEIR: Do you want this matter heard by the Court sitting without a jury? THE DEFENDANT: Yes. MR. KEIR: Mr. Mac Cabe, do you join? MR. MAC CABE: Counsel joins. MR. KEIR: People join. THE COURT: Very well . Ladies and gentlemen of the jury, I want to thank you very much for your services in this case. You will return, now, to the jury assembly room. All right. You may proceed, Mr. Keir.

‘MR. KEIR: At this time we offer to stipulate that the People's case may be submitted on the testimony already taken in this trial and also the testimony taken at the time of the Preliminary Hearing; the witnesses who were called, sworn and testified at that time be deemed herein called, sworn and testified in this court. We offer to stipulate that they testified as set forth in the transcript of the Preliminary Hearing. Also, any stipulations entered into at the Preliminary Hearing be deemed entered into in the court, and any exhibits offered and received in evidence at the Preliminary Hearing be deemed offered and received in this court, and also any exhibits offered and not yet received in this trial be received. MR. MAC CABE: So stipulated. THE COURT: Very well. Let the record show the Court has read and considered the reporter's transcript of the Preliminary Examination. MR. KEIR: People rest. MR. MAC CABE: Submitted. THE COURT: Very well. The defendant is found guilty of violation of Section 192, Subdivision 1 of the Penal Code, voluntary manslaughter, a necessarily and lesser included offense of that charged in the Information. MR. MAC CABE: Waive time and ask for permission to file a written application for probation. THE COURT: A probation report is ordered and the matter is set for probation hearing and sentence on June 12, 1968, 9:30 A.M. in his Department.’

It is perfectly obvious from the quoted text of the proceedings that an understanding had been reached between court and counsel and that the court's pronouncemint finding the defendant guilty of manslaughter was precisely the verdict that defendant expected. Defense counsel's reference to the transcript and the judge's statement that he already had ‘read and considered the Reporter's Transcript of the Preliminary Examination’ are indicative . After the stipulation, both sides rested and defense counsel ‘submitted’ without argument. The judge announced his verdict forthwith and without any explanatory comment. Defense counsel's only response was ‘Waive time and ask for permission to file a written application for probation.’

The significance of the recited circumstances is too obvious to anyone with any experience in criminal trials to require further comment. Defense counsel had undoubtedly sensed the attitude of the jury and in view of the record he rightly sensed the probability of a murder verdict.

In view of defendant's affirmation to the court that he had discussed the matter of waiving the jury with his attorney and that his attorney had explained to him his rights in the premises, the following from In re Mosley, supra, 1 Cal.3d at pages 926–927, 83 Cal.Rptr. at pages 809, 816, 464 P.2d at pages 473, 480, is apposite:

‘However, our characterization of the stipulation in question as the practical equivalent of a plea of guilty requires that we also consider whether the relief sought by petitioner must be granted because of noncompliance with the provisions of California law governing the entry of such a plea. (See People v. Rogers (1961) 56 Cal.2d 301, 305–307, 14 Cal.Rptr. 660, 363 P.2d 892; cf. People v. Reeves (1966) 64 Cal.2d 766, 772, 51 Cal.Rptr. 691, 415 P.2d 35.) Section 1018 of the Penal Code provides in relevant part that ‘every plea must be put in by the defendant himself in open court.’ In In re Martinez (1959) 52 Cal.2d 808, at page 815, 345 P.2d 449 at page 453, we observed that ‘The purpose of the requirement that a plea be entered by defendant personally is to ensure that the plea is his own. If it is, the purpose of that requirement is accomplished, * * *’ Moreover, when a plea is made with counsel and it appears or can be inferred from the record that prior to making the plea defendant has consulted with counsel it is presumed, in the absence of evidence to the contrary, that counsel has informed defendant of the various rights which are waived by a plea of guilty. (See In re Tahl, supra, 1 Cal.3d 122, at pp. 127–129, 81 Cal.Rptr. 577, 460 P.2d 449.) The record in the instant case clearly indicates that counsel had conferred with petitioner prior to the stipulation in question; we can construe petitioner's ready assent to the procedure, including his specific waivers of jury trial and the right to produce further evidence, in no other way. These same affirmations also demonstrate that the ‘plea’ was ‘his own’ as required by In re Martinez, supra, 52 Cal.2d 808, 815, 345 P.2d 449. Accordingly, we hold that petitioner is not entitled to relief on the ground of noncompliance with provisions of California law governing the entry of a plea of guilty.'

In the case at bench the record provides additional evidence that the court's verdict that defendant was guilty of manslaughter was precisely the verdict that defendant expected when he agreed to waive the jury and to submit the case as indicated. The following proceedings at the probation and sentence hearing are eloquent in their implications, especially the perfunctory and almost apologetic motion for a new trial which was made and submitted without argument:

‘MR. MAC CABE: The defendant is present with counsel, William Mac Cabe, your Honor. THE COURT: This is the time set for probation hearing and sentence in this matter. Let the record show the defendant and his counsel are present; that the Court has read and considered the record of the probation officer. MR. MAC CABE: The defendant just asked me, and I mentioned to him, the possibility of psychiatric evaluation. Just as the Court was coming out he asked me at the conclusion if there would be an opportunity to make a motion for a new trial, at the conclusion of that psychiatric—I wanted to make that for the record, that he will want to make the motion for a new trial. THE COURT: I will put it over until that time. MR. KEIR: The proper time for a motion for a new trial would be now, prior to imposition of sentence. THE COURT: Very well, I will hear a motion for a new trial now. MR . MAC CABE: We will make a motion for a new trial now, although it was not noticed. That is, I don't recall that it was noticed. I don't recall the notice, and the defendant wants a motion for a new trial based on all the statutory grounds. THE COURT: Very well. Submitted? MR. MAC CABE: Yes, your Honor. We don't have any other material to submit this morning, except, I believe the Court does still have the transcript. THE COURT: Yes. MR. MAC CABE: So, you do have all of the evidence that we have introduced. THE COURT: Yes. The motion for a new trial is denied.’ (Emphasis added .)

The Significance of Appellant's Silence

It must be conceded that the reasonable inferences which the trier of the facts will naturally and logically draw from a defendant's failure to deny or explain that which he necessarily is in a position to deny or explain may not under presently prevailing law be utilized to establish a prima facie case. (People v. McFarland, supra, 58 Cal.2d 748, 26 Cal.Rptr. 473, 376 P.2d 449.)

However, it does not follow that such failure is without legal significance. Common sense is expressed in People v. Ashley, supra, 42 Cal.2d 246, 269, 267 P.2d 271, in the observation that such failure properly can be considered as ‘persuasive’ and as a factor ‘lending weight to the evidence presented by the prosecution.’ By party of reasoning it may also be utilized as another circumstance tending to prove that the defendant submitted his case in a manner that was tantamount to a plea of guilty.

Mr. Justice Douglas in writing the majority opinion in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, did not undertake to say that the trier of the facts might not in appropriate circumstances draw inferences of guilt from the failure of the accused to take the stand and deny or explain incriminating evidence or facts within his knowledge. That decision does not dispute the soundness of the observations of the California Supreme Court in People v. Modesto, 62 Cal.2d 436, 452, 42 Cal.Rptr. 417, 426, 398 P.2d 753, 762, that ‘it cannot be overemphasized that whether or not the court or prosecutor comments on the defendant's failure to testify, the jury will draw adverse inferences therefrom. It will expect the defendant to present all the evidence he can to escape conviction, and it will naturally infer that his failure to explain or deny evidence against him when the facts are peculiarly within his knowledge arises from his inability to do so. ‘Such an inference is natural and irresistible. It will be drawn by honest jurymen, and no instruction will prevent it.’ [Citations.] The Constitution is not at war with common sense . [Citation.] It does not compel the court to instruct the jurors to ignore inferences their reason dictates.'

On the contrary, Justice Douglas recognized that the inference of guilt might be ‘natural’ or even ‘irresistible.’ This is shown by his statement as follows: ‘What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another. That the inference of guilt is not always so natural or irresistible is brought out in the Modesto opinion itself: * * *’ (Emphasis added.) (380 U.S. page 614, 85 S.Ct. page 1233.)

And as Mr. Justice Stewart so cogently stated in his dissenting opinion in Griffin (380 U.S. at p. 623, 85 S.Ct. at p. 1237): ‘The petitioner was not compelled to testify, and he did not do so. But whenever in a jury trial a defendant exercises this constitutional right, the members of the jury are bound to draw inferences from his silence. No constitution can prevent the operation of the human mind.’ (See People v. Beghtel, 239 Cal.App.2d 692, 695–696, 49 Cal.Rptr. 235.)

Certainly a judge no less than a jury is entitled to draw from a given fact or combination of facts whatever inferences accord with logic and common sense.

I would affirm the judgment.


1.  In the context of the record it appears as a practical certainty that this expected witness was Griffin Spencer who testified at the preliminary examination but because of the stipulated submission he was not called to testify at the trial.

FLEMING, Associate Justice.

ROTH, P. J., concurs.