People v. Dakin

• Decision Date: 28 April 1988
• Docket Number: No. A037107,A037107
• Citation: 248 Cal.Rptr. 206,200 Cal.App.3d 1026
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael A. DAKIN, Defendant and Appellant.

Page 206

248 Cal.Rptr. 206

200 Cal.App.3d 1026

The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael A. DAKIN, Defendant and Appellant.

No. A037107.

Court of Appeal, First District, Division 3, California.

April 28, 1988.

Denis Honeychurch, Law Offices of Honeychurch & Finkas, Fairfield, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Ann K. Jensen, Supervising Deputy Atty. Gen., Thomas A. Brady, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

BARRY-DEAL, Associate Justice.

Michael A. Dakin (appellant) appeals from a judgment sentencing him to one year in county jail for a violation of Vehicle Code section 23153, subdivision (b) (driving with a blood-alcohol level of 0.10 percent or more and causing bodily injury), ¹ entered after he submitted his case on the preliminary hearing transcript. Appellant contends the trial court erred in failing to advise him that the submission would require him to waive his privilege against self-incrimination and that the direct consequences of a conviction included a minimum one-year sentence to county jail and a five-year revocation of his driver's license. He also maintains that the evidence was insufficient to support his conviction because it did not show bodily injury. We affirm the judgment.

Discussion

At the preliminary hearing, Lester Wayne Testerman testified that at approximately 2 p.m. on March 5, 1986, he was driving his pickup truck on Peabody Road in Vacaville. His wife was riding with him. As he slowed for a stoplight, there was a terrific impact to the rear of his vehicle. His head and his wife's head went through the rear window of the pickup and shattered it. Mr. Testerman suffered two cuts on his forehead which were one-half to three-quarters of an inch long, a headache, and a stiff neck. Mrs. Testerman suffered a bleeding nose and a headache. The Testermans did not consult a physician because they felt their injuries were not serious enough to warrant medical attention.

Officer Melvin Bussell testified at the preliminary hearing that he arrived on the scene and found appellant inside his pickup. Appellant told the officer that at the time of the accident he had been driving the pickup 45-55 miles per hour. The speed limit in the area was 45 miles per hour. The officer observed that appellant had a strong odor of alcoholic beverage around him, that his speech was slurred, and that his eyes were bloodshot and his pupils dilated. Officer Bussell concluded appellant might be under the influence of alcohol and arrested him. A blood sample was taken from appellant at the hospital. The toxicology report indicated appellant had a blood alcohol level of 0.30. Officer Bussell testified that upon contacting the Testermans, he saw no visible injuries to Mrs. Testerman.

The court took judicial notice of documents evidencing appellant's two prior convictions of misdemeanor drunk driving within five years of the violations charged.

Counsel for appellant presented no evidence at the preliminary hearing but did cross-examine two of the prosecution witnesses. Appellant did not testify. The municipal court held appellant to answer in superior court after rejecting counsel's argument that there was insufficient evidence of bodily injury. Appellant then moved to dismiss the information pursuant to Penal Code section 995 on the ground that the evidence of bodily injury was insufficient to support the holding order. The court rejected the argument and denied appellant's motion.

On October 16, 1986, appellant's case proceeded to court trial. The district attorney and defense counsel stipulated to submit the case on the transcript of the preliminary hearing along with the toxicology report and the record of appellant's two prior misdemeanor convictions.

Before accepting the submission, the court directed defense counsel to voir dire appellant regarding the proposed submission. Defense counsel advised appellant of his right to jury trial and of his right to confront and cross-examine witnesses against him, and appellant waived these rights. The trial court advised appellant that he was giving up his right to present any additional evidence or witnesses and that he was giving up his right to testify on his own behalf.

In addition, the trial court informed appellant that the maximum potential punishment he could face would be four years in state prison and incorrectly advised him that a conviction would result in an automatic one-year suspension of his driving privileges. The court also advised appellant that if the case was submitted on the preliminary hearing transcript, he would probably be found guilty, and pointed out that the procedure appellant was stipulating to was sometimes referred to as a slow plea.

The court found appellant guilty of violating section 23153, subdivision (b), and found that the allegations regarding prior convictions were true. ² It dismissed a section 23153, subdivision (a), charge. Appellant was admitted to probation for five years on various terms and conditions, including serving a sentence of one year in county jail. Appellant filed a timely notice of appeal.

I. Bunnell Error

A. The Privilege Against Self-Incrimination

Appellant contends the trial court erred in failing to advise him that the submission on the preliminary hearing transcript would require him to waive his privilege against self-incrimination and that this error requires per se reversal because the submission on the preliminary hearing transcript was a slow plea and therefore "tantamount to a guilty plea."

"It has long been recognized that under the federal Constitution a defendant's plea of guilty to a criminal charge is only valid if it is voluntarily and knowingly made. [Citation.]" (Mills v. Municipal Court (1973) 10 Cal.3d 288, 291, 110 Cal.Rptr. 329, 515 P.2d 273.) In Boykin v. Alabama (1969) 395 U.S. 238, 242, 89 S.Ct. 1709, 1714, 23 L.Ed.2d 274, the United States Supreme Court held that an appellate court may not presume from a " 'silent record' " that a defendant has voluntarily and intelligently waived the constitutional rights which he or she implicitly relinquishes by entering a plea of guilty. The California Supreme Court later construed Boykin to require that the record must reveal "on its face" that the trial court, before accepting a guilty plea, expressly advised the accused and obtained his or her waiver of the full panoply of constitutional rights: the rights to trial by jury, to confront and cross-examine witnesses, and against self-incrimination. (In re Tahl (1969) 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 460 P.2d 449, emphasis omitted, cert. den. sub nom. Tahl v. California (1970) 398 U.S. 911, 90 S.Ct. 1708, 26 L.Ed.2d 72.)

It is true that slow pleas have been equated with guilty pleas insofar as the record of either must show explicit advisements and waivers of constitutional rights. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 602-603, 119 Cal.Rptr. 302, 531 P.2d 1086.) In addition, slow pleas are similar to guilty pleas in that, in both instances, omissions of the self-incrimination advisement and waiver are per se reversible. (People v. Levey (1973) 8 Cal.3d 648, 652-654, 105 Cal.Rptr. 516, 504 P.2d 452.) However, if guilt is contested after submission on the transcript, the submission does not amount to a slow plea of guilty, and the trial court's failure to advise the defendant is reversible only if it is reasonably probable a result more favorable to the defendant would have been reached if he or she had been properly advised. (People v. Wright (1987) 43 Cal.3d 487, 493-495, 233 Cal.Rptr. 69, 729 P.2d 260, citing People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243; People v. Jackson (1987) 192 Cal.App.3d 209, 216, 237 Cal.Rptr. 373.)

Therefore, our inquiry is whether the submission in this case was a slow plea and thus tantamount to a plea of guilty. In People v. Wright, supra, 43 Cal.3d at pages 495-497, 233 Cal.Rptr. 69, 729 P.2d 260, the Supreme Court set forth explicit guidelines for determining whether a defendant's submission on the preliminary hearing transcript constitutes a slow plea. A slow plea is " '... an agreed-upon disposition of a criminal case via any one of a number of contrived procedures which does not require the defendant to admit guilt but results in a finding of guilt on an anticipated charge and, usually, for a promised punishment.' Perhaps the clearest example of a slow plea is a bargained-for submission on the transcript of a preliminary hearing in which the only evidence is the victim's credible testimony, and the defendant does not testify and counsel presents no evidence or argument on defendant's behalf. Such a submission is 'tantamount to a plea of guilty' because 'the guilt of the defendant [is] apparent on the basis of the evidence presented at the preliminary hearing and ... conviction [is] a foregone conclusion if no defense [is] offered.' [Citations.]

"Submissions that are not considered slow pleas include those in which (1) the preliminary hearing involves substantial cross-examination of the prosecution witnesses and the presentation of defense evidence or (2) the facts revealed at the preliminary examination are essentially undisputed but counsel makes an argument to the court as to the legal significance to be accorded them. [Citation.]" ( People v. Wright, supra, 43 Cal.3d at p. 496, 233 Cal.Rptr. 69, 729 P.2d 260.)

In determining whether a submission is a slow plea, we must assess the circumstances of the entire proceeding. (People v Wright, supra, 43 Cal.3d at p. 496, 233 Cal.Rptr. 69, 729 P.2d 260.) "If it appears on the whole that the defendant advanced a substantial defense, the submission cannot be considered to be tantamount to a plea of guilty. Sometimes, a defendant's best defense is weak. He [or she] may make a tactical decision to concede...