People v. Chasco, Cr. 15183

• Decision Date: 19 September 1969
• Docket Number: Cr. 15183
• Citation: 276 Cal.App.2d 271,80 Cal.Rptr. 667
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Carlos Lujan CHASCO, Defendant and Appellant.

Page 667

80 Cal.Rptr. 667

276 Cal.App.2d 271

The PEOPLE of the State of California, Plaintiff and Respondent, v. Carlos Lujan CHASCO, Defendant and Appellant.

Cr. 15183.

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

Sept. 19, 1969.

Hearing Denied Nov. 26, 1969.

Michael Palley, Los Angeles, under appointment by the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Arthur B. Rosenfeld, Deputy Atty. Gen., for respondent.

KAUS, Presiding Justice.

After a court trial defendant was found guilty of having violated section 11501 of the Health and Safety Code (sale of narcotics). He was sentenced to state prison and appeals from the judgment.

In view of the nature of the issues raised on appeal a very condensed statement of the facts will suffice.

On March 14, 1967, an informer introduced defendant to Edward Noriega, an undercover officer. Defendant removed two balloons from his pocket and handed them to the informer. The informer then asked Noriega for $100.00. Noriega gave $100.00 to the informer who in turn handed the money to defendant. The transaction took place in the living room of the informer's home.

The two balloons contained a white powdery substance. Privately retained counsel stipulated that the balloons contained 'the narcotic heroin.'

Testifying in his own defense, defendant admitted that there had been a transaction with the informer. He denied, however, that he had sold anything and claimed that the deal had to do with two Doberman pinscher puppies which the informer was trying to sell to him. In any event, Officer Noriega was not present.

At the outset of the trial defendant had admitted six out of seven prior felony convictions with which he was charged. The court, however, with the concurrence of the District Attorney, found 'that the best interests of justice would be served if the defendant were committed pursuant to Section 3051 of the Welfare and Institutions Code,' adjourned the criminal proceedings and referred the matter to the so-called Psychiatric Department of the court. It appears from the record that although defendant was then committed to the California Rehabilitation Center he was later rejected under the provisions of section 3053 of the Welfare and Institutions Code. After defendant was returned to the trial court, it conducted a hearing to determine whether or not the Director of Corrections had abused his discretion in returning defendant. After hearing various witnesses the court found that there had been no such abuse. In addition it appeared that in the meanwhile the Adult Authority had revoked defendant's parole in another matter. The court thought that this action alone tied its hands, citing In re Teran, 65 Cal.2d 523, 55 Cal.Rptr. 259, 421 P.2d 107. Defendant's attorney requested that defendant be returned to the California Rehabilitation Center pending an attempt to have the Adult Authority vacate its order revoking defendant's parole. The court refused to do so and sentence was imposed.

The most important of defendant's present contentions is the claim that counsel's stipulation that the balloons contained heroin deprived him of the right to confront the witness or witnesses who might have so testified. (Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.) He also argues that, lack of confrontation aside, California law does not permit counsel to stipulate to 'the crucial fact in a lawsuit.' For this proposition he cites Harness v. Pacific Curtainwall Co., 235 Cal.App.2d 485, 45 Cal.Rptr. 454. Lastly he argues that the stipulation deprived him of the effective assistance of counsel. (People v. Ibarra, 60 Cal.2d 460, 464--466, 34 Cal.Rptr. 863, 386 P.2d 487.) We consider these claims in inverse order.

There is nothing to the Ibarra point. The stipulation may have been nothing but a tactical move on the part of counsel. It was well designed to obviate unnecessary proof which would have focused the court's attention on the most damning part of the evidence. Defendant's position at the trial was not that the powder in the balloons was something other than heroin, but that he had had nothing to do with it. Certainly ineffective assistance does not affirmatively appear from this record. (People v. Reeves, 64 Cal.2d 766, 773--774, 51 Cal.Rptr. 691, 415 P.2d 35; People v. Hill, 70 Cal.2d ---, --- ^*, 76 Cal.Rptr. 225, 452 P.2d 329; People v. McGautha, 70 Cal.2d ---, --- ^**, 76 Cal.Rptr. 434, 452 P.2d 650; People v. Fain, 70 Cal.2d ---, --- ^***, 75 Cal.Rptr. 633, 451 P.2d 65.)

Turning to the alleged lack of authority of counsel to stipulate to a 'crucial' fact, it is sufficient to say that while proof of the chemical composition of the powder was certainly essential to the People's case, defendant's denial of any connection with it relegated the issue to a subsidiary role. In the Harness case, on which defendant relies, it was held that an attorney did not have the right to stipulate away his client's only interest in the litigation. The distinction is obvious.

More serious is defendant's confrontation point. He was entitled to confront all the witnesses against him, not just some, and there is nothing in the record to show that he, as distinguished from his attorney, (Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837) intelligently and competently waived this right.

If all we had to worry about is California case law interpreting the Constitution, defendant's point could be dismissed as frivolous. In People v. Foster, 67 Cal.2d 604, 606, 63 Cal.Rptr. 288, 432 P.2d 976, the attorney, without the defendant's express consent, submitted the case, in part, on the transcript of the preliminary hearing. It was held that the right of confrontation was effectively waived when 'defense counsel, in defendant's presence and without objection by him, joined in the stipulation regarding the use of that transcript.' (67 Cal.2d at 606, 63 Cal.Rptr. at 290, 432 P.2d at 978.)

Without intending to question the authority of Foster, the cases on which it relied and those which have followed it (e.g. People v. Ross, 268 Cal.App.2d ---, --- ^****, 74 Cal.Rptr. 99), we think that the problem whether constitutional rights can be effectively waived by counsel without the client's express and intelligent consent must be examined in the light of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. There the judgment was reversed because the record did not show a valid waiver of the various constitutional rights which the defendant gave up when he pleaded guilty. ¹ The court specifically mentioned the right to 'confront one's accusers' as one of the rights with respect to which it could not presume a waiver from a silent record. ²

Trials should be triable. Almost every record we see shows that by a waiver of one constitutional right or another the prosecution's burden has been simplified. A good proportion of these waivers are simply made by counsel. Rarely does the record show whether counsel's apparent accommodation is prompted by trial tactics, negligence or sheer ignorance of the existence of the right. If it really follows from Boykin that every purported waiver of every constitutional right must be affirmatively shown to have been personally and intelligently made by the client, it would be necessary to stop the proceedings and have a hearing on that question every time the attorney declines to cross-examine a witness or fails to object to inadmissible evidence. ³ Indeed, logically it might even follow that the record must show intelligent, personal waivers of constitutional rights not necessarily applicable, for who knows what a more vigorous cross-examination or the production of an additional witness might show. ⁴

The solution lies not in logic, but in practicalities. After all, the question is not whether the courts should permit a deprivation of a federal constitutional right to go without redress; rather it is the extent to which, on direct appeal, the trial record must negative possible violations. In Boykin the court held that when the conviction is based on a guilty plea, the record must so show; but, as the dissent points out, even if the court had held otherwise, Boykin could have attempted to establish in habeas corpus proceedings that he pleaded in ignorance. As long as collateral relief is available the question becomes simply this: when does the need of the trial court to get on with its business take a back seat to the desirability of negativing the need for such further proceedings.

In this case we deal with a simple stipulation of fact, not fatal to the defense or even contradictory to the defendant's position at the trial. ⁵ We are convinced that in such a case the Constitution does not demand affirmative demonstration that it has not been violated. Just where the line between a guilty plea and a stipulation of fact such as ours should be drawn, we need not attempt to determine. ⁶ There may be stipulations of fact so destructive of the accused's position at the trial that to permit them to be made without a showing of his intelligent consent is to court reversal. This is not such a case.

As already noted, defendant is not without a remedy. If he can adequately allege and satisfactorily prove that his attorney's stipulation deprived him of the right to confrontation without a constitutionally valid waiver, he would undoubtedly be entitled to relief by way of habeas corpus. Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508, held that Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255, was to be given 'fully retroactive application.'

By pointing to habeas corpus as an available remedy we by no means intimate that d...