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Court of Appeal, First District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Stephen Thomas O'CONNELL, Defendant and Appellant.


Decided: December 13, 1983

John K. Van de Kamp, Atty. Gen., Herbert F. Wilkinson, Donna B. Chew, Deputy Attys. Gen., San Francisco, for plaintiff and respondent. John L. Williams, San Jose, for defendant and appellant.

 In a contested criminal nonjury trial, when the prosecution offers the transcript of the preliminary hearing into evidence, without objection from defense counsel, we hold that defendant has not submitted his case on the transcript and the court is not required to advise defendant of his right at trial to confront and cross-examine witnesses who testified at the preliminary hearing and obtain a waiver of that right.

Stephen Thomas O'Connell was charged with murder (Pen.Code § 187).   He waived his right to a jury trial and, after a nonjury trial, the court found him guilty of second degree murder.   We affirm the judgment.

The victim and O'Connell had been divorced approximately two years.   On the evening of the victim's death, she visited a house shared by Ed Dorman and Victoria Beal and asked Dorman to call O'Connell and invite him over.   After his arrival, O'Connell and the victim left the house together.   Approximately one hour later, O'Connell returned alone.   He wanted to speak to Dorman, but Dorman was asleep, so he took Beal outside where she saw the victim lying on the ground and tried unsuccessfully to revive her.

Upon Beal's request, O'Connell and Dorman carried the victim into the house.   Beal asked O'Connell what happened and he said, “She fell.”   Beal tried unsuccessfully to revive the victim by throwing water on her face.   O'Connell told Beal, “I don't think she is breathing.   Give her mouth to mouth.”   The victim did not revive despite additional efforts, during which O'Connell said, “I did it because she threatened to take Cory [his daughter from his marriage to the victim] away from me.”   O'Connell then indicated he was going to leave but he should be called, “If you can't wake her up ․”

After O'Connell left, Beal became aware of bruises on the victim's face and had Dorman call O'Connell.   Shortly thereafter O'Connell returned with his present wife.   Beal screamed at her, “He killed Jan;  he killed her.”   Mrs. O'Connell said, “I know.   Don't worry about it;  we're going to take care of it.   Just calm down.”   Dorman and O'Connell then carried the victim out of the house and placed her in O'Connell's automobile so she could be taken to a hospital.   After the O'Connells left, Beal called the police.   They found the victim's body in a field.

The coroner determined that the primary cause of death was asphyxiation by strangulation, with a secondary cause of blunt abdominal trauma.   The coroner established that the victim suffered severe injuries to her neck area, including fractures of her voice box, a fractured rib, lacerated liver, and internal bleeding.

O'Connell, relying on Bunnell v. Superior Court (1975) 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086, contends it was reversible error for the trial judge to fail to advise him of his right against self-incrimination and his right to confront and cross-examine at trial the witnesses who testified at the preliminary hearing, and to fail to obtain his waiver of those rights.

In Bunnell, our Supreme Court held:  “The distinction heretofore established between submissions that are ‘tantamount to a plea of guilty’ and those in which the defendant actively contests his guilt has also unnecessarily burdened trial courts with the task of attempting to determine in advance of the acceptance of the submission whether guilt is apparent, acknowledged, or contested.   We have concluded that in order to relieve trial courts of this burden and in order to give maximum assurance that defendants are fully aware of the significant rights that they surrender in any submission and of the possible consequences thereof, such defendants shall be fully advised of these rights and consequences and that the record shall reflect such advice, waivers, and acknowledgment by the defendant of his understanding of these consequences in all submissions.

“Therefore, although some of our requirements are not constitutionally compelled, we have concluded that effective upon the date on which this opinion becomes final, in all cases in which the defendant seeks to submit his case for decision on the transcript or to plead guilty, the record shall reflect that he has been advised of his right to a jury trial, to confront and cross-examine witnesses, and against self-incrimination.   It shall also demonstrate that he understands the nature of the charges.   Express waivers of the enumerated constitutional rights shall appear.   In cases in which there is to be a submission without a reservation by the defendant of the right to present evidence in his own defense he shall be advised of that right and an express waiver thereof taken.   If a defendant does not reserve the right to present additional evidence and does not advise the court that he will contest his guilt in argument to the court, the defendant shall be advised of the probability that the submission will result in a conviction of the offense or offenses charged.   In all guilty plea and submission cases the defendant shall be advised of the direct consequences of conviction such as the permissible range of punishment provided by statute, registration requirements, if any (e.g., [Pen.Code] § 290;  Health & Saf.Code, § 11590), and, in appropriate cases the possibility of commitment pursuant to Welfare and Institutions Code sections 3050, 3051, or 6302.”  (13 Cal.3d at p. 605, 119 Cal.Rptr. 302, 531 P.2d 1086, emphasis added.)

 Bunnell is applicable when the defendant seeks to submit his case for decision on the transcript of the preliminary hearing, or to plead guilty.   Here, the prosecution offered documents into evidence to which a hearsay objection could properly have been made.   The failure of defense counsel to make such an objection does not transform the case into one where defendant submits his case for decision on the preliminary hearing transcript.   Defendant was obviously not pleading guilty, since he fully presented his defense by calling witnesses, including an expert, and testifying himself.   The procedure mandated by Bunnell is meant to ensure that criminal defendants are fully aware of the rights they are giving up by submitting their case on the transcript of the preliminary hearing, (Bunnell v. Superior Court, supra, 13 Cal.3d at p. 605, 119 Cal.Rptr. 302, 531 P.2d 1086.)   Having had the benefit of a trial of his case, O'Connell did not give up his rights in any sense and did not submit his case on the transcript.   Bunnell was not applicable.

 Because the prosecution submitted its case on the transcript of the preliminary hearing, it might be argued that O'Connell did not fully enjoy his right to confront and cross-examine the prosecution's witnesses.   But his counsel had extensively cross-examined these witnesses at the preliminary hearing.   His right of confrontation and cross-examination was waivable by counsel in his presence (unless the defendant objected) without a formal admonition and express waiver.  (People v. Hill (1971) 19 Cal.App.3d 306, 96 Cal.Rptr. 813;  see also, In re Mosley (1970) 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 473.)   Defense counsel refrained from objecting to submission of the transcript of the preliminary hearing into evidence at the trial.   For whatever tactical reason, defense counsel chose not to exercise O'Connell's confrontation and cross-examination rights at that point, and therefore waived those rights.

 Furthermore, even if Bunnell were applicable, under the facts here, the error would not have been prejudicial.   O'Connell acknowledged causing his former wife's death, but presented a “heat of passion” defense.   Although O'Connell did not specifically waive his right to confrontation and cross-examination, he did understand that the only evidence the prosecution would present would be the preliminary hearing transcript, plus portions of the police report.   Thus, in effect, he waived his right to confrontation and cross-examination.  (People v. Orduno (1978) 80 Cal.App.3d 738, 749, 145 Cal.Rptr. 806;  see also People v. Ingram (1976) 60 Cal.App.3d 722, 131 Cal.Rptr. 752.)   In both Orduno and Ingram the case was submitted by the defendant on the transcript of the preliminary hearing, although in the latter case the defendant testified in his own defense, and, in both cases, argument was presented to the court on the issue of guilt.   Both decisions held a Bunnell violation is to be tested by the Watson standard of whether it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of error.  (People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.)

 Since Orduno and Ingram, there have been a number of decisions dealing with submissions by defendants on the transcript of the preliminary hearing (or on a written report) where Bunnell warnings were not given and waivers of rights were not obtained from defendants.   All have reversed the convictions evincing a trend toward finding Bunnell error reversible per se rather than subject to Watson review.  (See People v. Kirkwood (1977) 70 Cal.App.3d 290, 138 Cal.Rptr. 649;  People v. Davis (1980) 103 Cal.App.3d 270, 163 Cal.Rptr. 22;  People v. Bell (1981) 118 Cal.App.3d 781, 173 Cal.Rptr. 669;  People v. Casarez (1981) 124 Cal.App.3d 641, 177 Cal.Rptr. 451;  In re Mario G. (1981) 125 Cal.App.3d 1060, 181 Cal.Rptr. 744;  People v. Gray (1982) 135 Cal.App.3d 859, 185 Cal.Rptr. 772.)   One decision went so far as to state “another way of expressing the point is that Bunnell requires a ‘tailor-made style of advice and waivers in the context of any procedure which is less than or different than a full blown jury trial.’ ”   (People v. Gray, supra, 135 Cal.App.3d 859, 869, 185 Cal.Rptr. 772.)   We disagree that Bunnell error is reversible per se and hold that under the facts of this case, even if Bunnell is applicable, any error was not prejudicial.

 O'Connell's final contention is that he was prejudiced by not being advised of his privilege against self-incrimination.1  He relies on People v. Levey (1973) 8 Cal.3d 648, 105 Cal.Rptr. 516, 504 P.2d 452, but like Bunnell, Levey is not applicable in the instant case.  Levey involved a defendant who testified after submitting his case on the preliminary hearing transcript.   The trial court did not advise him of, nor did the defendant expressly waive, this privilege.   The instant case was not a submission, but a trial.   As part of his case O'Connell testified on his own behalf.   He effectively waived his privilege against self-incrimination.   (Witkin, Cal.Evidence (2d ed. 1966) Witnesses, § 911, pp. 845–846.)

The judgment is affirmed.


1.   We have also considered O'Connell's challenge to the sufficiency of the evidence to support a second degree murder conviction, but find it to have no merit.

KING, Associate Justice.

LOW, P.J., and HANING, J., concur.

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