IN RE: MICHAEL W.

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

IN RE: MICHAEL W., a Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Plaintiff and Respondent, v. MICHAEL W., Defendant and Appellant.

Civ. 25172.

Decided: July 31, 1981

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Ernest Martinez, Deputy State Public Defender, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Richard D. Garske and Jay M. Bloom, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

 In this case we part company with the majority opinion in People v. Dougherty, 102 Cal.App.3d 270, 162 Cal.Rptr. 277, which imposed upon the trial courts of this state the sua sponte obligation to obtain on the record a waiver of the right to closing argument in criminal and juvenile cases.   We find the dissent of Presiding Justice George Brown to be completely persuasive.   As Presiding Justice Brown said, “․ no statute, rule or case has been cited which requires that the judge do so” (obtain such a waiver).  (102 Cal.App.3d 270, 280, 162 Cal.Rptr. 277.)   We agree.   The majority holding places an unreasonable and unwarranted burden on the trial courts.

In this respect, the facts of these two cases are identical.

Dougherty was a non-jury criminal case.   This is a contested jurisdictional hearing in juvenile court.   In each, after both parties had rested and advised the court there was no more testimony, no request was made for oral argument.   The court then proceeded to announce its findings.

In Dougherty, the majority found that the defendant had been denied due process because the trial court had not elicited a waiver of oral argument.

The majority position in Dougherty is not compelled by any controlling authority.  Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 and In re William F., 11 Cal.3d 249, 113 Cal.Rptr. 170, 1520 P.2d 986, on which the majority in Dougherty relied, are easily distinguishable.   In each case defense counsel expressly requested to be permitted to argue and in each case the trial judge refused that request.   In each case there was clearly a denial of due process and the right to effective counsel.

As Presiding Justice Brown said in Dougherty, it is certainly better practice for trial judges to inquire if counsel desires to argue before deciding a case.   That is the general rule.   Usually the court says “Do counsel want to argue” or something to that effect.   Sometimes counsel speak up and say “May I be heard” before the court says anything.   However, if no one says anything, there is no reason for the trial judge to affirmatively seek a waiver of oral argument before deciding the case.   Again we quote from Presiding Justice Brown:  “In my opinion the proper rule should be that if counsel desires to argue it is his burden and obligation to request argument at the peril of being held to have waived argument for failing to do so.   To place the burden on the trial judge to ask if oral argument is desired, as the principal opinion does, is an example of a disturbing trend to overload a trial judge with sua sponte duties instead of leaving them where they should be—on the shoulders of counsel.   If counsel wants to argue, it would be a simple matter for him to say so.   As an appellant it is his obligation to affirmatively establish error on the record.  [¶ ]  This conclusion is consistent with waiver principles and appellant practice in other situations involving constitutional violations and the majority of cases decided in other jurisdictions.   For example, in the area of Miranda (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974) violations, an error is deemed waived unless objection is made and may not be raised for the first time on appeal.  (In re Dennis M. (1969) 70 Cal.2d 444, 462, 75 Cal.Rptr. 1, 450 P.2d 296;  People v. Peters (1972) 23 Cal.App.3d 522, 529–532, 101 Cal.Rptr. 403, cert. den. 409 U.S. 1064, 93 S.Ct. 563, 34 L.Ed.2d 517.)   Similarly, if a search and seizure violation is not raised at the trial court level the defect may not be raised on appeal.  (People v. Jenkins (1975) 13 Cal.3d 749, 753, 119 Cal.Rptr. 705, 532 P.2d 857, cert. den. 423 U.S. 860, 96 S.Ct. 115, 46 L.Ed.2d 88).   Nor is it permissible to argue lack of counsel at a lineup for the first time on appeal.  (People v. Williams (1970) 2 Cal.3d 894, 909, [88 Cal.Rptr. 208, 471 P.2d 1008] cert. den. 401 U.S. 919, 91 S.Ct. 903, 27 L.Ed.2d 821.)”  (Dougherty, supra, 102 Cal.App.3d at p. 280, 162 Cal.Rptr. 277.)

The Oregon Court of Appeal came to exactly the same conclusion in State v. Green (1980), 49 Or.App. 949, 621 P.2d 67.   So did the Second Division of the Second Appellate District of this state in People v. Manning, Cal.App., 174 Cal.Rptr. 625.   We agree with Presiding Justice Brown, the Second Division of the Second District of the California Court of Appeal and the Oregon Court of Appeal.   We can think of nothing further to add to the discussion.   The burden placed upon trial courts by Dougherty is not compelled by controlling authority, by any reason having to do with the administration of justice or by common sense.

 As of the date of this hearing, Dougherty was the law since it had been filed some four months earlier.   Under elementary principles of stare decisis, that opinion, whatever we may think of it, was binding on the trial court.   Therefore, the failure to affirmatively elicit a waiver of argument was error.   Nevertheless, given the facts of this case, we have no hesitation in finding beyond a reasonable doubt that this failure resulted in no prejudice to the defendant.

We now proceed to the other issue raised on the appeal—the sufficiency of the evidence as to the Penal Code section 148 allegation.1  Since this has no precedential value, we probably shouldn't even clutter up a published opinion with it.   We dispose of its briefly.

One night a uniformed police officer in a marked police car stopped a vehicle for having an expired registration.   It became necessary to use not only the red light but the siren to effect this stop as the driver was reluctant to do so.   When the car finally stopped, minor, a passenger, leapt from the car and took off with a paper bag under his arm.   The officer chased him for awhile, then returned to the stopped car.   Other officers saw the minor crawl out from under a palm tree.   When ordered to stop he took off again.   He was finally apprehended and under the palm tree was found a grocery bag containing a substantial amount of marijuana.

Minor contends that the officers had no right to chase him and stop him.

 When an officer makes a legal stop of a motor vehicle in the night and an occupant leaps from the car and sprints away carrying a grocery bag full of something, any officer worth his salt is going to pursue.   Common sense would indicate that the fleeing person is either a thief or someone with contraband who is fleeing to avoid detection.   Under these circumstances the officer was entitled to a reasonable suspicion that the fleeing person was engaged in criminal activity.  (In re Tony C., 21 Cal.3d 888, 148 Cal.Rptr. 366, 582 P.2d 957.)   Therefore, under Penal Code section 148 the officer had a lawful duty that he was attempting to discharge.

To put the matter as succinctly as possible, if under the circumstances such as these—a nighttime red light and siren traffic stop after which a passenger takes off like a scalded dog while carrying a grocery bag full of something—if an officer cannot chase and detain him, then we might just as well give up any attempt to protect ourselves through effective law enforcement and turn society over to the predators.

Judgment affirmed.

FOOTNOTES

1.   The court found to be true allegations in a petition filed under Welfare and Institutions Code section 602 charging minor with possession of marijuana for sale (Health & Saf. Code, § 11359) and obstructing a public officer in the performance of his duties (PnCd,§18. No issue is made as to the sufficiency of the evidence as to the marijuana count.

GARDNER, Presiding Justice.

KAUFMAN and McDANIEL, JJ., concur.