PEOPLE v. HELTON (1979)

On August 30, 1977, an information was filed in the Santa Clara Superior Court charging defendant Tammy June Helton (hereafter appellant) with sale of Phencyclidine (PCP), a controlled substance, in violation of Health and Safety Code, section 11379. Appellant entered a plea of not guilty on August 30, 1977.

At a pretrial hearing on October 17, 1977, before Judge McInerny, appellant and the People advised the court that both sides desired to waive their right to a jury trial.¹ The court was further advised that the parties had agreed to submit the case on the transcript of the preliminary examination with the stipulation that at the time of the submission appellant would be allowed to testify on her behalf, and the People would be allowed to present a rebuttal witness, if necessary. Two days later, on October 19, 1977, a hearing was had in the same court before Judge Zecher, at which appellant as well as the rebuttal witness of the prosecution presented their respective testimony. After careful consideration of both the newly admitted evidence and the preliminary hearing transcript, appellant was found guilty. On December 2, 1977, the court suspended the imposition of sentence and placed appellant on probation for three years on the condition that she serve one year in the county jail.

The sufficiency of evidence is not an issue on this appeal. The evidence adduced at the preliminary examination shows without equivocation that appellant offered to sell four grams of PCP to an undercover agent for $400. She was given the $400 by the agent. Thereupon appellant left and returned about 30 minutes later with three grams of contraband which she gave to the officer together with $105 change.

The only contention presented on appeal is that despite her explicit waiver of jury trial two days earlier, appellant should have been advised anew at the October 19 proceeding.

This argument is advanced, notwithstanding appellant's tacit admission that the waiver taken by Judge McInerny was a voluntary, knowing, and intelligent one, which was entered only after a full admonition by the judge. Thus, appellant's argument is nothing more than a plea to exalt form over substance. Were we to accede to such a patently absurd request, we would pervert, rather than serve, the ends of justice.

After reviewing appellant's contention set out in the opening brief, People moved this court to either affirm the judgment summarily or dismiss the appeal on the ground of frivolousness (People v. Browning (1978) 79 Cal.App.3d 320, 145 Cal.Rptr. 45; People v. Woodard (1973) 33 Cal.App.3d 930, 109 Cal.Rptr. 495; People v. Sumner (1968) 262 Cal.App.2d 409, 69 Cal.Rptr. 15). In entertaining respondent's motion, we set the case for oral argument. After having heard the oral contentions of the parties and reviewed in full both the pertinent facts and legal authorities, we conclude that respondent's motion is well taken and that the appeal at hand must be dismissed on the basis of frivolity.

In disposing of appellant's contention, it is to be emphasized that where, as here, the case is submitted essentially upon the preliminary hearing transcript, the only legal requirement is that there must be an affirmative showing on the record that the defendant waived his right against self-incrimination, confrontation and jury trial (Boykin v. Alabama (1969) 395 U.S. 238, 243-244, 89 S.Ct. 1709, 23 L.Ed.2d 274; In re Mosley (1970) 1 Cal.3d 913, 926, fn. 10, 83 Cal.Rptr. 809, 464 P.2d 473). As further elaborated in In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, while the waiver of the above mentioned rights must be specifically and expressly stated in the record, no recitation of a formula is needed to render the waiver valid and effective. All that is required is that “the 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,” and “What is required is evidence that the particular right was known to and waived by the defendant.” (In re Tahl, supra, at pp. 132-133, 81 Cal.Rptr. at pp. 584-585, 460 P.2d at pp. 456-457.)

In the case at bench the record shows beyond any dispute that at the October 17, 1977, hearing, it was explained to appellant at great length that by submitting her case upon the preliminary hearing transcript she would waive certain constitutional rights, and she was repeatedly admonished that this included her constitutional right to a jury trial. Appellant understood those rights and voluntarily waived them.² At the same time the record indicates that in the October 19, 1977, proceedings, appellant's trial counsel, Mr. Williams, spelled out to Judge Zecher that appellant had waived her right to a jury trial before Judge McInerny, and that appellant was willing to submit the case on the basis of the preliminary examination transcript in accordance with the terms agreed upon at the October 17, 1977, hearing.³

To sum it up, appellant here raises but one issue, i. e., the validity of waiver of jury trial. This contention is clearly devoid of any merit, because the record affirmatively demonstrates that in accordance with the standards set out in Boykin-Tahl, appellant was advised of and voluntarily waived her right to a trial by jury. Since the frivolousness of the appeal appears on “mere inspection” of the record, under long standing rules it is subject to summary dismissal (People v. Sumner, supra, 262 Cal.App.2d 409, 69 Cal.Rptr. 15).

On a final note, we cannot but observe that appellate counsel's handling of the present appeal was less than praiseworthy. While it is well established that counsel appointed for an indigent criminal defendant must raise all arguable legal points on appeal even though he may not expect to be successful (Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493; People v. Feggans (1967) 67 Cal.2d 444, 62 Cal.Rptr. 419, 432 P.2d 21; Gallagher v. Municipal Court (1948) 31 Cal.2d 784, 192 P.2d 905), there is an overriding legal and moral consideration setting a limit to appellate advocacy. As spelled out time and again, counsel may employ such means only as are consistent with truth and may never seek to mislead the judge or any judicial officer by resort to deceit or by artifice or false statement of fact or law (Bus. & Prof.Code, s 6068, subd. (d); Scofield v. State Bar (1965) 62 Cal.2d 624, 628, 43 Cal.Rptr. 825, 401 P.2d 217).

In the case at bench, appellate counsel was less than candid in presenting the facts in the opening brief. Although the seminal contention on appeal revolved around appellant's waiver of her right to a jury trial at the preliminary proceedings, appellate counsel failed to furnish this court with the transcript of the crucial October 17, 1977 hearing, where the waiver occurred, leaving the impression that a valid jury waiver had never been given by the appellant.⁴ The true state of the facts was established only when respondent moved to augment the appellate record by including the transcript of the October 17 hearing, which proved beyond a scintilla of doubt that such waiver had in fact occurred, and also that the waiver appeared on the face of the record as required by Boykin-Tahl. In light of the patently unmeritorious appeal, appellate counsel should have followed the guidance provided by Anders by advising this court that the purported appeal was wholly frivolous and by requesting permission to withdraw from the case (Anders v. California, supra, 386 U.S. at p. 744, 87 S.Ct. 1396).⁵

The appeal is dismissed.

FOOTNOTES

1.  “. . . A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant's counsel. . . .” (Cal.Const., art. I, s 16.)

2.  The illustrative excerpts of the augmented record read as follows: “THE COURT: The court calls the matter of People versus Tammy June Hilton, is that your true name, ma'am? THE DEFENDANT: Helton. THE COURT: Helton, I am sorry. This is the time and place set for the pre-trial hearing on this matter. After discussion with counsel, It is the understanding of the court that both sides wish to waive a jury in this case. That thereafter the People and the defendant will submit the prosecution testimony on the preliminary examination held Friday August the 19th before Judge Kanemoto; that the defendant specifically reserves the right and intends to testify in her own defense. And, that the prosecution reserves the right to have the investigating officer testify as a rebuttal witness or supplemental witness as the case may be. Is that right? MR. VOYLES: That is correct.”“THE COURT: Miss Helton, I want you to listen carefully to what I am saying, because if you don't understand what is being said, then I will stop and I will let you talk to your lawyer. You are presently charged before this court with a felony violation of Health and Safety Code section 11379, offering or selling Phencyclidine or PCP, Angel Dust, whatever. How old are you, Ma'am? THE DEFENDANT: I turned nineteen last Tuesday. THE COURT: If you are convicted of this offense, you could be sent to the state prison. It is much more likely that you would be sent to the California Youth Authority. I will not discuss the specific maximum sentence. That is the place that you are looking at. Your attorney and the district attorney have indicated that what they wish to do is have this matter tried without a jury which is your constitutional right, and instead let a judge decide it, decide the question of your guilt or innocence. Now, if you do that, you have the right, then, to come up and testify and tell your side of the story and whether you are guilty or not. Do you understand that? THE DEFENDANT: Right. THE COURT: Now, if you do that, you are giving up your constitutional right to a jury trial, do you understand that? THE DEFENDANT: Uh-huh.”“THE COURT: I am satisfied that there is a knowledgeable waiver of a jury trial. Are you satisfied, Mr. Voyles? MR. VOYLES: I am not sure I heard an explicit waiver. THE COURT: Do you give up your right to a jury trial? THE DEFENDANT: Yes. THE COURT: Are you satisfied? MR. WILLIAMS: I am satisfied. MR. VOYLES: Satisfied.” (Emphases added.)

3.  The pertinent part of the October 19 hearing record is as follows: “MR. WILLIAMS: Good morning, Your Honor. John Williams of the Public Defender's Office appearing on behalf of Miss Helton who is present. We're ready to proceed in this matter, Your Honor. There was a waiver of Jury before Judge McInerny yesterday morning, I guess, And it is our intention to We're willing to submit the People's case upon our basis of the preliminary examination transcript that was had on the preliminary examination that was had on August 19th, 1977, before Judge Kanemoto, and if that is agreeable with the People, we would then proceed to have Miss Helton testify.” (Emphasis added.)

4.  While counsel for appellant did, by footnote, observe that “there is a reference in the record to an earlier jury waiver proceeding” and was willing to assume Arguendo the validity of that waiver, the plain, inexcusable fact is that experienced appellate counsel deliberately failed to provide this court with the transcript of the earlier proceeding so that we would not have to assume anything.In her petition for rehearing, appellant asserts that “this Court gave counsel not the slightest indication that it was concerned with counsel's ethical conduct until it attacked counsel in its published opinion.” This assertion is simply not true. Each of the three justices participating asked pointed questions at oral argument as to counsel's duty to provide this court with a Complete record of the proceedings below. Counsel's only and consistent reply was that the transcript of the earlier proceeding was “irrelevant,” a wholly frivolous and empty excuse.

5.  The State Public Defender is fully aware of this procedure, having utilized it with approval of the Court of Appeal (see People v. McGee (1978) 82 Cal.App.3d 127, 146 Cal.Rptr. 833). In fact, the very same office of the State Public Defender involved in the case at bench has as recently as May 3, 1979, requested this very court to grant a request to withdraw on the ground of absence of justiciable issues (People v. Dumas, 1 Crim. 19073, the record of which we take judicial notice).

KANE, Associate Justice.

TAYLOR, P. J., and ROUSE, J., concur.