Bunnell v. Superior Court, S.F. 23128

CourtUnited States State Supreme Court (California)
Writing for the CourtWRIGHT; CLARK; McCOMB
Citation119 Cal.Rptr. 302,531 P.2d 1086,13 Cal.3d 592
Parties, 531 P.2d 1086 Mack Vernon BUNNELL, Petitioner, v. The SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; The PEOPLE, Real Party in Interest. In Bank
Docket NumberS.F. 23128
Decision Date27 February 1975

Page 302

119 Cal.Rptr. 302
13 Cal.3d 592, 531 P.2d 1086
Mack Vernon BUNNELL, Petitioner,
v.
The SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent;
The PEOPLE, Real Party in Interest.
S.F. 23128.
Supreme Court of California,
In Bank.
Feb. 27, 1975.

[13 Cal.3d 597]

Page 305

[531 P.2d 1089] Thomas C. Hastings and Sylva, Rubnitz, Dinapoli, Hastings, Holden & Livak, San Jose, for petitioner.

No appearance for respondent.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci and Herbert F. Wilkinson, Deputy Attys. Gen., for real party in interest.

[13 Cal.3d 598] WRIGHT, Chief Justice.

Petitioner seeks a writ of prohibition to restrain the respondent superior court from proceeding to trial on an information charging him with murder unless it is stipulated that the offense may be no greater than second degree murder. (Pen.Code, §§ 187, 189.) 1 In addition, he seeks a writ of mandate to compel the transfer of the cause to another county pursuant to section 1033 (reasonable likelihood that a fair and impartial trial cannot be had in the jurisdiction). For reasons which appear below we have concluded that he is not entitled to a change of venue but that he may not be tried for an offense greater than second degree murder.

Double Jopardy--Former Acquittal

Petitioner contends that a prior proceeding which culminated in his conviction of second degree murder was a trial in which he was in jeopardy of conviction of first degree murder, that he was thereby impliedly acquitted of the greater offense, and that to force him to again stand trial on a charge of first degree

Page 306

murder is to punish him for successfully exercising his right of appeal. The People contend, on the other hand, that petitioner has never been in jeopardy of conviction for first degree[531 P.2d 1090] murder, that the prior proceedings were not a trial which culminated in an acquittal of that degree of the offense, and that rather than penalizing petitioner for successfully exercising his right of appeal the pendency of the charge reflects the return of the case to the Status quo ante following the reversal of the earlier judgment. An understanding of these contradictory positions and the issues thus raised necessitates a review of the procedural history of the case, for which purpose we have taken judicial notice of relevant records of the respondent court and of the decision of the Court of Appeal in which the earlier judgment was reversed. (Evid.Code, § 452.)

Petitioner was charged by information with the September 4, 1972, murder of his wife, and with being armed with a knife in the commission of the offense. (§ 12022.) On November 5, 1972, petitioner, his counsel, and counsel for the People, proposed a disposition to the trial court. As explained by petitioner's counsel the case was to be submitted to the court for decision on the basis of the reporter's transcript of the preliminary examination with petitioner reserving the right to testify, the [13 Cal.3d 599] People reserving the right to present certain documentary and physical evidence in rebuttal, and petitioner reserving the right to cross-examine the authors of those documents if necessary for purposes of clarification. The terms of the submission were unusual and ambiguous. 2 The presence of the cause in this court is due in no small part to the failure of the trial court, counsel, and petitioner to achieve a common understanding of the purpose and effect of the submission. It is clear, however, that all participants understood that petitioner would not be convicted of first degree murder. 3

Page 307

[531 P.2d 1091] Petitioner subsequently stipulated to consideration by the court of a [13 Cal.3d 600] transcript of a conversation he had with an investigating police officer shortly after his arrest and he did not personally testify. After reviewing the transcript of the preliminary examination, the documents introduced by the People, and the transcript of the interview, the court found petitioner guilty of murder in the second degree and further found that he had been armed as alleged in the information.

On petitioner's appeal from the judgment, the Court of Appeal reversed the judgment on the ground that petitioner had believed he would have a trial at which he would testify in his own behalf, but that he had been denied a fair trial because the court had prejudged the case and had already decided that petitioner was guilty of second degree murder before hearing his defense. The People now argue that the opinion of the Court of Appeal is ambiguous and does not hold that the proceedings in the superior court were a trial of the issue of petitioner's guilt rather than what is characterized as a 'slow plea' of guilty. Reversal of the judgment would have been proper on grounds that while court and counsel considered the submission to be a slow plea, the record demonstrated as a matter of law that petitioner did not intend to admit his guilt and did not understand the effect of the submission and that therefore his waiver of his rights and his agreement to submit the cause for decision on the reporter's transcript of the preliminary hearing were not voluntary and intelligent. (People v. Gallegos (1971) 4 Cal.3d 242, 249, 93 Cal.Rptr. 229, 481 P.2d 237.) The Court of Appeal did not base its decision on that ground, however, but held that petitioner did not receive a fair trial. Implicit in that holding is a conclusion that the proceedings did constitute a trial. The judgment became final when the People did not seek further review and the subsequent proceedings which are the subject of the instant petition must be considered in light of that ruling. (People v. Durbin (1966) 64 Cal.2d 474, 477, 50 Cal.Rptr. 657, 413 P.2d 433.) Further, as we shall explain, whether or not the prior proceeding was a 'slow plea,' it did constitute a trial for all purposes relevant to the issues now before us.

Neither petitioner nor the People has fully outlined the proceedings in the superior court which followed the issuance of the remittitur. It appears, however, that when the case was again set it appeared on the docket for trial on a charge of second degree murder. New counsel was appointed for petitioner and a jury trial was requested. At the hearing on a subsequent motion for a change of venue the People argued that the case had been returned to the same status it had occupied when the information was filed, i.e., that petitioner stood charged with first degree [13 Cal.3d 601] murder. The People argued that the prior proceedings had been part of a bargained-for disposition and that if petitioner now wished to withdraw from that bargain by retracting his waiver of jury trial he would have to face a first degree murder charge. In its memorandum of decision denying the motion for change of venue, the court declared that as a consequence of the reversal of the judgment without direction by the Court of Appeal the accusatory pleading stood as if no trial had been conducted and that all stipulations previously entered into had been expunged.

Petitioner thereupon sought leave to enter a plea of former jeopardy (Cal.Const., art. I, § 13, cl. 4; § 1016), asserting that his conviction of second degree murder in the prior proceedings necessarily implied an acquittal of the greater charge of first degree murder. The court rejected the plea and the instant petition followed. Prohibition is the proper remedy to pre

Page 308

[531 P.2d 1092] vent retrial when a defendant has been once in jeopardy. (Paulson v. Superior Court (1962) 58 Cal.2d 1, 5, 22 Cal.Rptr. 649, 372 P.2d 641.)

Although the double jeopardy clause of the Fifth Amendment to the United States Constitution and the standards developed in its application by the United States Supreme Court apply to the states through the due process clause of the Fourteenth Amendment (Benton v. Maryland (1969) 395 U.S. 784, 795--796, 89 S.Ct. 2056, 23 L.Ed.2d 707), states are not precluded from applying more stringent standards or extending greater protection and California has done so. (See, e.g., Cal.Const., art. I, § 13, cl. 4; § 654; Curry v. Superior Court (1970) 2 Cal.3d 707, 87 Cal.Rptr. 361, 470 P.2d 345.) We are guided therefore by both the decisions of the United States Supreme Court applying the Fifth Amendment and our own past decisions interpreting the statutes and Constitution of California.

Under the related doctrines of double jeopardy and former acquittal, jeopardy attaches when a defendant is placed on trial on an accusatory pleading in a court of competent jurisdiction, and a jury is impaneled and sworn, or, if jury trial has been waived, the trial 'entered upon' by the reception of evidence or otherwise. (Richard M. v. Superior Court (1971) 4 Cal.3d 370, 376, 93 Cal.Rptr. 752, 482 P.2d 664; Curry v. Superior Court, supra, 2 Cal.3d 707, 712, 87 Cal.Rptr. 361, 470 P.2d 345.) A defendant who has been convicted of a lesser degree or lesser included offense than that charged in the accusatory pleading is deemed to have been acquitted of the greater charge. He may not be retried for any offense of which he has [13 Cal.3d 602] been acquitted, whether expressly or impliedly, notwithstanding a subsequent reversal of the judgment on appeal. (Price v. Georgia (1970) 398 U.S. 323, 329, 90 S.Ct. 1757, 26 L.Ed.2d 300; Benton v. Maryland, supra, 395 U.S. 784, 796, 89 S.Ct. 2056, 23 L.Ed.2d 707; Gomez v. Superior Court (1958)50 Cal.2d 640, 328 P.2d 976.)

A defendant who submits his case for decision on the basis of the transcript of the preliminary examination agrees that the transcript may be considered in lieu of the personal testimony of the witnesses who appeared at the preliminary hearing. His trial is therefore 'entered upon' when the stipulation to submit the case is accepted by the court. That acceptance is analogous to the swearing of a witness or the reception of...

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358 practice notes
  • United States v. Rodriquez, No. 06–1646.
    • United States
    • U.S. Supreme Court
    • 19 Mayo 2008
    ...2008); Mich. Rule Crim. Proc. 6.302(B)(2) (West 2007); Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992); Bunnell v. Superior Court, 13 Cal.3d 592, 604–605, 119 Cal.Rptr. 302, 531 P.2d 1086, 1094 (1975). 4. By 1986, when Congress added the relevant statutory language, see Pub.L. 99–570, ......
  • People v. Bell, F074656
    • United States
    • California Court of Appeals
    • 1 Abril 2020
    ...of innocence." ( Cool v. United States (1972) 409 U.S. 100, 104, 93 S.Ct. 354, 34 L.Ed.2d 335 ; see Bunnell v. Superior Court (1975) 13 Cal.3d 592, 603, 119 Cal.Rptr. 302, 531 P.2d 1086 ; see also § 1096.) In contrast, special pleas raise separate issues to which the presumption of innocenc......
  • People v. Ratliff
    • United States
    • United States State Supreme Court (California)
    • 3 Abril 1986
    ...is tantamount to a guilty plea requiring defendant's personal waiver of his constitutional rights. (Cf. Bunnell v. Superior Court (1975) 13 Cal.3d 592, 604-605, 119 Cal.Rptr. 302, 531 P.2d 1086.) We disagree. Counsel's tactical decision to argue a particular personal view of the evidence, i......
  • People v. Blackburn, H037207
    • United States
    • California Court of Appeals
    • 14 Agosto 2013
    ...not advised of, or did not knowingly and voluntarily waive, his rights in the prior plea proceeding]; Bunnell v. Superior Court (19175) 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 531 P.2d 1086 [creating procedural rule requiring advisements in all submission cases]; In re Yurko (1974) 10 Cal.3d......
  • Request a trial to view additional results
359 cases
  • United States v. Rodriquez, No. 06–1646.
    • United States
    • U.S. Supreme Court
    • 19 Mayo 2008
    ...2008); Mich. Rule Crim. Proc. 6.302(B)(2) (West 2007); Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992); Bunnell v. Superior Court, 13 Cal.3d 592, 604–605, 119 Cal.Rptr. 302, 531 P.2d 1086, 1094 (1975). 4. By 1986, when Congress added the relevant statutory language, see Pub.L. 99–570, ......
  • People v. Bell, F074656
    • United States
    • California Court of Appeals
    • 1 Abril 2020
    ...of innocence." ( Cool v. United States (1972) 409 U.S. 100, 104, 93 S.Ct. 354, 34 L.Ed.2d 335 ; see Bunnell v. Superior Court (1975) 13 Cal.3d 592, 603, 119 Cal.Rptr. 302, 531 P.2d 1086 ; see also § 1096.) In contrast, special pleas raise separate issues to which the presumption of innocenc......
  • People v. Ratliff
    • United States
    • United States State Supreme Court (California)
    • 3 Abril 1986
    ...is tantamount to a guilty plea requiring defendant's personal waiver of his constitutional rights. (Cf. Bunnell v. Superior Court (1975) 13 Cal.3d 592, 604-605, 119 Cal.Rptr. 302, 531 P.2d 1086.) We disagree. Counsel's tactical decision to argue a particular personal view of the evidence, i......
  • People v. Blackburn, H037207
    • United States
    • California Court of Appeals
    • 14 Agosto 2013
    ...not advised of, or did not knowingly and voluntarily waive, his rights in the prior plea proceeding]; Bunnell v. Superior Court (19175) 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 531 P.2d 1086 [creating procedural rule requiring advisements in all submission cases]; In re Yurko (1974) 10 Cal.3d......
  • Request a trial to view additional results

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