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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. David Malcolm WHITE, Defendant and Appellant.

No. F004602.

Decided: December 27, 1985

Richard I. Targow, Sebastopol, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Eddie, T. Keller, Sandra V. Hughes, and J. Robert Jibson, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.


Appellant David Malcolm White stands convicted after a court trial of second degree burglary (Pen.Code, §§ 459, 460);  the court sentenced him to state prison for the aggravated term of three years, granted 226 days custody credit, and imposed a restitution fine of $100.   Appellant seeks reversal of the judgment, claiming (1) the evidence was insufficient to establish his guilt beyond a reasonable doubt, and (2) the court erred reversibly in accepting partial submission of the matter upon the transcript of appellant's previous trial 1 without obtaining appellant's personal waiver of a jury trial or advising appellant of the consequences of conviction as mandated in Bunnell v. Superior Court (1975) 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086.   In supplemental briefing, appellant further contends (3) the court erred reversibly under Bunnell in accepting the partial submission without securing appellant's waiver of the privilege against self-incrimination.   For the reasons discussed below, we find appellant's arguments unpersuasive and affirm the judgment.



In supplemental briefing, appellant contends that the court's omission to advise him of the privilege against self-incrimination and to obtain a waiver of this right prior to accepting the partial submission (Bunnell v. Superior Court, supra, 13 Cal.3d at p. 592, 605, 119 Cal.Rptr. 302, 531 P.2d 1086) constitutes per se reversible error.   Although appellant waived his rights to a jury trial and to confront and cross-examine witnesses, the trial court did not obtain an express waiver of the privilege against self-incrimination.   We agree with respondent that the error does not require reversal in the circumstances of this case.

 Where a defendant pleads guilty or admits a charged prior conviction, it is established that lack of on-the-record advisement and waiver of the three principal constitutional rights forfeited by a guilty plea requires automatic reversal if raised on direct appeal.  (In re Yurko (1974) 10 Cal.3d 857, 861–863, 112 Cal.Rptr. 513, 519 P.2d 561;  People v. Rizer (1971) 5 Cal.3d 35, 37–38, 95 Cal.Rptr. 23, 484 P.2d 1367;  see Boykin v. Alabama, (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274;  In re Tahl, (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.)   The purpose of the formal procedural requirements of Boykin-Tahl is to assure that the defendant's conclusive confession of guilt is voluntary, “with the necessary concomitant, knowing and intelligent waiver of constitutional rights which [are] forfeited by a plea of guilty.”  (In re Yurko, supra, 10 Cal.3d at p. 861, 112 Cal.Rptr. 513, 519 P.2d 561.)

In In re Mosley (1970) 1 Cal.3d 913, 926–927, 83 Cal.Rptr. 809, 464 P.2d 473, the California Supreme Court indicated that Boykin-Tahl admonishments would be required in future cases where a submission of a case on the transcript of the preliminary hearing was “tantamount to a plea of guilty․”  The Mosley dictum was adopted in People v. Levey (1973) 8 Cal.3d 648, 105 Cal.Rptr. 516, 504 P.2d 452, where the defendant was advised of and waived a jury and the right to confront and cross-examine witnesses before submitting the case on a transcript of the preliminary hearing (containing only evidence of guilt), but was not advised of the privilege against compulsory self-incrimination.   The court reversed the conviction, explaining “It would exalt form over substance if we were to conclude that a defendant who directly admits his guilt is entitled to the full panoply of rights described in Boykin and Tahl but one who indirectly makes the same admission by uttering a statement which is tantamount to a guilty plea is not entitled to the same rights.”   (8 Cal.3d at p. 652, 105 Cal.Rptr. 516, 504 P.2d 452.)

In Bunnell v. Superior Court, supra, 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086, the Supreme Court held that in all cases in which a defendant submits the issue of guilt, in whole or in part, on the transcript of the preliminary hearing, 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.”  (Id., at p. 605, 119 Cal.Rptr. 302, 531 P.2d 1086.)

While this case involves a partial submission on the transcript of an earlier trial, rather than a preliminary hearing transcript, respondent does not argue that waivers of the three enumerated constitutional rights were not required, and we discern no basis in Bunnell for distinguishing this type of submission.  (See People v. Mora, (1984) 153 Cal.App.3d 18, 199 Cal.Rptr. 904;  People v. Tran (1984) 152 Cal.App.3d 680, 199 Cal.Rptr. 539.)   However, respondent strongly contests appellant's assertion that the effect of Bunnell error is to require reversal without a showing of prejudice in all submission cases.   Did the Supreme Court intend, as appellant urges, that such error be reversible per se regardless of whether the submission was tantamount to a plea of guilty?

Neither Bunnell itself, nor any subsequent Supreme Court case, directly addresses this question.  Bunnell involved a petition for a writ of prohibition to restrain the superior court from proceeding to trial on an information charging first degree murder where petitioner's previous trial, involving a partial submission on the preliminary hearing transcript, and resulting in a conviction of second degree murder, was reversed on appeal on the ground that the trial court had prejudged the case.  (Bunnell v. Superior Court, supra, 13 Cal.3d 592, 598–601, 119 Cal.Rptr. 302, 531 P.2d 1086.)   The issue before the Supreme Court was whether the partial submission was a “trial” within the meaning of the constitutional protections against double jeopardy.   It was in this context that the Supreme Court discussed the past distinctions between “slow pleas” and other submissions, and announced a uniform rule for trial courts in future cases.   The court concluded:

“We are satisfied that compliance with these requirements will not unduly burden trial courts, some of which have anticipated most if not all of the requirements set forth herein.   The additional burden, if any, will be far outweighed by the benefits of assuring criminal defendants that the full panoply of constitutional and statutory rights provided by our system of criminal justice is available to them and by our attempt to insure that any waiver thereof by defendants is both voluntary and intelligent.   This practice will also lessen the burden on appellate courts which must now attempt to ascertain by examination of the record whether a submission was ‘tantamount to a plea of guilty.’ ”  (Id., at pp. 605–606, 119 Cal.Rptr. 302, 531 P.2d 1086, fn. omitted.)

The Courts of Appeal have reached conflicting conclusions concerning the standard of reversible error.   Several cases, beginning with People v. Ingram, (1976) 60 Cal.App.3d 722, 726–727, 131 Cal.Rptr. 752, hold that Bunnell error, including failure to advise the defendant of the privilege against self-incrimination, does not require reversal unless the submission is tantamount to a guilty plea or the record shows prejudice from the lack of an express advisement and waiver.  (See also People v. Mora, supra, 153 Cal.App.3d 18, 24–25, 199 Cal.Rptr. 904;  People v. Orduno (1978) 80 Cal.App.3d 738, 749–450, 145 Cal.Rptr. 806.)   In contrast, the court in People v. Wells, (1983) 149 Cal.App.3d 497, 195 Cal.Rptr. 608 concluded that Bunnell error is reversible per se, regardless of whether the particular submission amounts to a slow plea of guilty.  (See also People v. Drieslein (1985) 170 Cal.App.3d 591, 597–599, 216 Cal.Rptr. 244.)3

 We agree with the analysis of Ingram and Orduno that the Bunnell rule, extending the requirement of express advisement and waiver of fundamental rights to cases not involving slow pleas, was instituted by the Supreme Court as a judicially imposed rule of criminal procedure and “was not constitutionally mandated.”  (People v. Orduno, supra, 80 Cal.App.3d at p. 749, 145 Cal.Rptr. 86;  People v. Ingram, supra, 60 Cal.App.3d at pp. 726–727, 131 Cal.Rptr. 752.)   Accordingly, where the submission is not tantamount to a guilty plea, Bunnell error does not require reversal unless the defendant suffered prejudice.  (People v. Mora, supra, 153 Cal.App.3d 18, 24–25, 199 Cal.Rptr. 904.)

Boykin-Tahl error is reversible per se because of a policy determination by the courts that where a defendant surrenders the important constitutional rights necessarily forfeited by a guilty plea, an affirmative showing rather than a silent record is necessary to establish that the confession of guilt is voluntarily made and that defendant has knowingly and intelligently waived his rights to a jury trial, to confront and cross-examine witnesses against him, and the privilege against self-incrimination.  (Boykin v. Alabama, supra, 395 U.S. 238, 242–244, 89 S.Ct. 1709, 1711–1712.)   However, the rationale for extending the express waiver requirements to all submission cases (to minimize error and maximize protection of defendants' constitutional rights) does not compel reversal in every case involving Bunnell error.   If the proceeding is not tantamount to a plea of guilty, the policy to guard against involuntary confessions does not require automatic reversal for an omission in advice of rights, and we must look to the record to determine whether the error resulted in prejudice.  (People v. Orduno, supra, 80 Cal.App.3d 738, 749, 145 Cal.Rptr. 806;  see, by analogy, People v. Murtishaw (1981) 29 Cal.3d 733, 756, 175 Cal.Rptr. 738, 631 P.2d 446 [wrongful introduction of an admission of the defendant is not per se reversible error].)

 In the circumstances of this case, the court's omission to obtain from appellant an express waiver of the privilege against self-incrimination was harmless error under any standard.4  The effect of the submission in this matter is similar to that in People v. Ingram, supra, 60 Cal.App.3d 722, 727, 131 Cal.Rptr. 752:

“The submission here was plainly not tantamount to a plea of guilty.   Advice on the privilege against self-incrimination and on the range of possible punishment would not have affected Ingram's decision to accept the submission of the transcript of the preliminary hearing as the equivalent of live testimony, since he intended to take the stand and deny he was the man who took [the victim's] wallet.   Ingram never sought to challenge the truth of the testimony of the prosecution witnesses;  instead he hoped to reconcile their testimony with his own explanation for possession of [the victim's] wallet.   Ingram did testify on his own behalf, and thus directly waived his privilege against self-incrimination.   He could not reasonably have been expected to understand that submission of the prosecution's case on the transcript somehow amounted to a further and different waiver of his privilege against self-incrimination.”

Unlike the defendant in Ingram, appellant testified in the prior proceeding and stipulated to submit the retrial partially on the transcript of both prosecution and defense evidence.   However, the substance of the procedure is comparable:  appellant's partial submission clearly was not tantamount to an admission of guilt.   Appellant consistently contested his guilt through the defense evidence in the submission and the additional witness called at the second trial;  the stipulation did not concede any element of the prosecution's case.   Although appellant had the right to require the People to shoulder the entire burden of proving his guilt by putting on admissible evidence,5 appellant was not prejudiced by his stipulation to allow use of the prosecution case as presented in the transcript of the first trial.

The defense did not present any evidence controverting the physical evidence relied on by the prosecution to show guilt.   Appellant did not contest that the shoe with the distinctive defect was his and did not offer any evidence contradicting the expert opinions that the shoe, as well as tread patterns of tires on the Griffins' car, matched prints at the scene.   Rather, appellant offered a different explanation for the prosecution's circumstantial evidence:  he testified in the first trial that he joined the Griffins by chance the evening before his arrest on April 6, 1984, explained that the shoes seized by police had been left in the Griffins' car a few weeks before the burglary, and presented an alibi for the night of March 28–29 through his own testimony and that of his sister.   Because the effect of this submission was to present the court with the defense explanation as well as the prosecution's circumstantial evidence, it is inconceivable that appellant would have proceeded differently had he first been advised by the court of his privilege to require the prosecution to put on its case once again.

Appellant contends that he suffered prejudice because if he had been advised of his privilege to remain silent before the submission, he might have chosen to present alibi and other exculpatory evidence solely through the testimony of his sister, who testified in the first trial, and Roy Griffin, who was called by the defense at the second trial.   Thus, appellant claims prejudice because his testimony from the earlier trial was introduced at the retrial without an express waiver of the privilege against self-incrimination.   This argument is without merit.

 Appellant, who was represented by counsel, waived the privilege in the first trial by taking the stand and testifying.  (People v. Thomas (1974) 43 Cal.App.3d 862, 867–868, 118 Cal.Rptr. 226.)   While appellant's waiver was effective only in the proceeding in which he testified and he was therefore free to assert it in the second trial (see People v. Lopez (1980) 110 Cal.App.3d 1010, 1020–1021, 168 Cal.Rptr. 378), such election could not have prevented all prosecution use of his prior testimony.   To the extent that his explanations constituted admissions (e.g., that the distinctive shoe was his, that he gave a false name to police, that he associated with Griffin before the time of the offense), the testimony would have been admissible at the new trial over defense objection.  (Evid.Code, § 1220;  People v. Griffith (1960) 181 Cal.App.2d 715, 719–720, 5 Cal.Rptr. 620;  People v. Thourwald (1920) 46 Cal.App. 261, 267–269, 189 P. 124.)   To the extent the testimony was not incriminatory, appellant obviously was not prejudiced.  (People v. Thourwald, supra, 46 Cal.App. at 267, 189 P. 267.)

 Finally, appellant suggests that in addition to the advisements enumerated in Bunnell, a court accepting a defendant's stipulation to submit the case upon the transcript of a prior hearing should warn the defendant that “the judge who reads the transcript will not have the opportunity to observe the demeanor of the witnesses and to assess their credibility.”   Defense counsel undoubtedly should fully explain to his client the practical importance of the right of confrontation, including the value of compelling a witness “to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”  (Mattox v. United States (1895) 156 U.S. 237, 242–243, 15 S.Ct. 337, 339, 39 L.Ed. 409.)   However, the trial court fulfilled its duty in this regard by ascertaining that appellant was aware of and waived the right to confront and cross-examine witnesses.   As explained in In re Tahl, supra, 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 460 P.2d 449, “the spelling out of every detail by the trial court” is not required.

We conclude that the court's omission to advise appellant of the privilege against self-incrimination before accepting the submission in this case was not prejudicial error.

The judgment is affirmed.



1.   In appellant's first trial the jury did not reach a verdict.   Appellant then waived his right to jury trial and to confrontation and stipulated to submit the matter in part on the transcript of the first trial;  the prosecution and the defense each called an additional witness who did not testify in the earlier proceeding.

2.   See footnote * ante.

3.   Arguably, the result in Wells and Drieslein might be reconciled with Ingram.   In Drieslein, the proceedings apparently were tantamount to a guilty plea, as the case was submitted on preliminary hearing and suppression motion transcripts.   In Wells, it may not have been possible to rule out prejudice from the failure to advise of the privilege against self-incrimination.  Wells was a prosecution for attempted murder, mayhem and aggravated assault in which defendant entered not guilty and not guilty by reason of insanity pleas.   The issue of guilt was submitted on the preliminary hearing transcript and police reports;  no defense evidence was presented although counsel argued the evidence was insufficient.

4.   The standard of reversible error for violations of judicially imposed rules of criminal procedure which are not constitutionally compelled is the reasonable probability of prejudice test of People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.  (In re Ronald E. (1977) 19 Cal.3d 315, 325–326, 137 Cal.Rptr. 781, 562 P.2d 684.)   While we agree with the analysis of Ingram that this is the proper standard for assessing Bunnell error in cases not involving slow pleas (People v. Ingram, supra, 60 Cal.App.3d at pp. 726–727, 131 Cal.Rptr. 752), we would reach the same result under the standard of Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, applicable to review of federal constitutional error.  (See People v. Orduno, supra, 80 Cal.App.3d at pp. 749–750, 145 Cal.Rptr. 806.)

5.   In People v. Levey, supra, 8 Cal.3d 648, 652, 105 Cal.Rptr. 516, 504 P.2d 452, the Supreme Court explained that the privilege against self-incrimination necessarily is involved where a defendant submits his case on the transcript of the preliminary hearing:“The privilege against self-incrimination is applicable not only to a frank admission of guilt but also to statements which could furnish a link in the chain of evidence needed for conviction.  [Citation.]  A defendant who by his stipulation permits the prosecution to prove its case without requiring the production of any evidence in court, other than the transcript of a prior hearing, furnishes far more than a mere link in the chain of evidence.”  (Ibid. )