People v. Dorsey

• Decision Date: 08 May 1972
• Docket Number: Cr. 19335
• Citation: 101 Cal.Rptr. 826,25 Cal.App.3d 366
• Parties: The PEOPLE, Plaintiff and Respondent, v. Lynn Joseph DORSEY and James Mark Dorsey, Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 826

101 Cal.Rptr. 826

25 Cal.App.3d 366

The PEOPLE, Plaintiff and Respondent, v. Lynn Joseph DORSEY and James Mark Dorsey, Defendants and Appellants.

Cr. 19335.

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

May 8, 1972.

As Modified on Denial of Rehearing June 7, 1972.

Hearing Denied Aug. 2, 1972.

Barber & Bate, by Randle H. Bate, Los Angeles, for defendants and appellants.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Barbara T. King, Deputy Atty. Gen., for plaintiff and respondent.

STEPHENS, Associate Justice.

Defendants were charged in consolidated informations with committing the crime of attempted grand theft, a violation of Penal Code sections 487, subd. 3, and 664, a felony. Defendants entered pleas of not guilty, and after motions under Penal Code sections 1538.5 and 995, trial was had, with the evidence being submitted as recorded in the transcript of the preliminary hearing. Each defendant was found guilty of a violation of Vehicle Code section 10852, which was termed by the court as a lesser included offense. Probation was denied and sentence imposed. This appeal followed.

The facts most favorable to the prosecution are that one Meador was the owner of a vehicle with wire wheels. He parked his car in a parking space near his apartment, and affixed it with a lock and chain drawn through the spokes of the wheels to a trash can. At approximately 5:00 a.m. on August 28, 1969, Meador heard what sounded to him to be a chain being removed from the wheels of his car and the chain being placed upon the hood of the vehicle. He looked outside, but could not see what had happened. After dressing, he went to the car and saw that what he had concluded was in fact what had happened. He called the police. The police arrived promptly, and after hearing the facts recited by Meador, drove around the area to ascertain if any suspects were in the vicinity. They observed defendants driving slowly along the road, not far from Meador's parked car. Defendants' car was going from side to side in the road, slowing as it came alongside of parked vehicles, in a manner suggestive of casing for purposes of theft. Defendants sought to avoid the police by changing direction several times, but were eventually stopped by them. In defendants' car was seen a tool customarily used in car thefts, and after defendants' arrest, the car was searched, producing what appeared to the trial judge to be a sophisticated car-thief's supply of working tools. After proper Miranda warnings, two of the three persons in defendants' car, including one of the defendants, made highly incriminating statements approaching the status of confessions.

The principal contention on appeal is that the code section under which defendants were convicted is not a lesser in cluded offense. Technically, this may be true; however, the rule expressed in People v. Francis, 71 Cal.2d 66 at 74, 75 Cal.Rptr. 199 at 204, 450 P.2d 591 at 596 does not compel a reversal on this ground. In Francis, under identical material circumstances to the instant case, the court stated:

'Although it appears that Francis was convicted of a crime not included in the charge against him, reversal is not required under the circumstances of this case. The preliminary hearing transcript contains evidence that would have supported a finding of guilt of the crime charged . . . (Citations) and of the crime of which he was convicted. As noted the case was submitted on the preliminary hearing transcript. No evidence was offered on Francis' behalf and no argument was made by (his) attorney . . . In submitting the case neither Francis nor his attorney could rationally have anticipated anything other than a finding of guilt of some offense. When the trial court announced its finding the attorney's response was 'Think you, your Honor,' indicative of his feeling that the judge had given Francis the benefit of being found guilty of a lesser offense. It is understandable that neither Francis nor his lawyer thereafter made any objection in the trial court to the court's finding. At the proceedings for the pronouncement of judgment the only remarks made on Francis' behalf were a plea for probation.'

Under these same circumstances in the instant case, we apply the rule of Francis.

This does not dispose of the matter, however, for, since Francis, the rule of In re Mosley, 1 Cal.3d 913, 926, fn. 10, 83 Cal.Rptr. 809, 816, 464 P.2d 473, 480, has become applicable to a trial where submission on the preliminary transcript is tantamount to a slow plea of guilty to some offense. In Mosley, the court stated:

'As we recently held in Tahl (1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449), the requirement of Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, that the defendant's waiver of rights involved in a guilty plea affirmatively appear on the record is to be given prospective application. Thus, petitioner herein is precluded from reliance upon Boykin. We think it clear, however, that Boykin and Brookhart (v. Jones) (384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314), taken together, require that in the future the use of stipulations which, in the circumstances of the particular case, are In fact tantamount to a plea of guilty . . . must be accompanied by an affirmative showing on the record that the defendant waives his right to freedom from compulsory...