People v. Gallegos

• Decision Date: 01 March 1971
• Docket Number: Cr. 15143
• Citation: People v. Gallegos, 4 Cal.3d 242, 93 Cal.Rptr. 229, 481 P.2d 237 (Cal. 1971)
• Parties: , 481 P.2d 237 The PEOPLE, Plaintiff and Respondent, v. Gabriel Flores GALLEGOS, Defendant and Appellant.
• Court: California Supreme Court

Page 229

93 Cal.Rptr. 229

4 Cal.3d 242, 481 P.2d 237

The PEOPLE, Plaintiff and Respondent, v. Gabriel Flores GALLEGOS, Defendant and Appellant.

Cr. 15143.

Supreme Court of California In Bank.

March 1, 1971.

Rehearing Denied March 31, 1971.

W. Keith Woodmansee, Walnut Creek, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Robert R. Granucci and Richard N. Light, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

The issue presented by this appeal is whether our decision in In re Mosley (Jan. 3, 1970) 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 473 should be applied retroactively to the date of Boykin v. Alabama (June 2, 1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 or prospectively. We have concluded that Mosley should be accorded prospective application only.

Defendant was charged by information with burglary (Pen.Code, § 459) and escape (Pen.Code, § 4532, subd. (b)). The cause originally was submitted for decision by stipulation of defendant, his counsel and counsel for the People on the transcript of the preliminary hearing. At a later date upon stipulation entered into by defendant's counsel and counsel for the People police crime and laboratory reports were received to supplement the transcript. Defendant was found not guilty of escape but was found guilty of burglary in the second degree (Pen.Code, § 460).

On appeal from the judgment of conviction defendant contends that acceptance of his counsel's stipulation to the consideration of the police reports by the trial court constituted prejudicial error. In support of this contention he asserts that the latter stipulation to the admission of the crime and laboratory reports was tantamount to a plea of guilty and therefore could be properly accepted only in conformity with those procedural safeguards fashioned by the United States Supreme Court and this court to assure that guilty pleas are not only voluntary but are made only by defendants who have an intelligent understanding of the consequences thereof and of the constitutional rights thereby waived. (Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.) As the trial took place after the decision in Boykin and prior to our decision in In re Mosley, supra, 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 473, in which we held that there requirements were applicable to submission on the transcript under circumstances in which such submission was tantamount to a plea of guilty, defendant contends that Mosley should be accorded retroactive effect. We have concluded that Mosley should not be applied retroactively and that as the stipulation was properly made and accepted in conformity with the then applicable requirements, the judgment should be affirmed.

Defendant and his counsel stipulated to submission of the cause on the transcript of the preliminary examination when they appeared for trial on August 5, 1969. The stipulation was accepted by the court after defendant's counsel examined defendant on Voir dire to establish that defendant was aware of the nature of the charges, of the meaning of the stipulation and that by the stipulation he was waiving his rights to jury trial, to confrontation by and cross-examination of witnesses, and to testify in his own behalf. ¹ At the conclusion of counsel's Voir dire of defendant, the People agreed to stipulate that the burglary, if proved, was of the second degree. The court then, before accepting defendant's stipulation, examined him further to confirm his understanding of the procedural and constitutional effects of the stipulation and emphasized that the decision would be based solely on the evidence in the transcript and that no further evidence would be presented. ²

One week later, on August 12, 1969, counsel, in the presence of defendant, but without his express acquiescence, stipulated to consideration of the police crime and laboratory reports. Defendant neither joined in nor objected to counsel's stipulation, and the court did not inquire into his understanding of the effect of counsel's action. ³ The court then found defendant guilty of burglary of the second degree.

The People argue that Mosley should not be accorded retroactive effect and that both stipulations were properly accepted by the trial court. In view of our conclusion that these contentions are meritorious we need not consider the People's further contention that, in the circumstances of this case, the stipulation to consider the crime and laboratory reports was not tantamount to a plea of guilty. ⁴

Our conclusion that Mosley shall have prospective effect only is predicated on the same considerations that led us to conclude that the rules enunciated in Boykin v. Alabama, supra, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, did not require retroactive application. (In re Tahl, supra, 1 Cal.3d 122, 133, 81 Cal.Rptr. 577, 460 P.2d 449.) The same criteria for determining if a constitutional ruling is to be applied retroactively apply: '(1) the purpose of the new rule; (2) the extent of reliance upon the old rule; and (3) the effect retroactive application would have upon the administration of justice.' (Halliday v. United States (1969) 394 U.S. 831, 832, 89 S.Ct. 1498, 1499, 23 L.Ed.2d 16; In re Tahl, supra, 1 Cal.3d 122, 134, 81 Cal.Rptr. 577, 460 P.2d 449.)

The purposes of Boykin, as interpreted and implemented by Tahl, are to assure both that pleas of guilty are intelligently made and to provide a 'complete record' to facilitate disposition of post-conviction attacks on the plea. (In re Tahl, supra, 1 Cal.3d 122, 134, 81 Cal.Rptr. 577, 460 P.2d 449. Cf. People v. West (1970) 3 Cal.3d 595, 611, 91 Cal.Rptr. 385, 477 P.2d 409.) Identical purposes were served by the extension of the Boykin-Tahl requirements to stipulations which, under the circumstances of the particular case, are tantamount to a plea of guilty at the time they are made. (See In re Mosley, supra, 1 Cal.3d 913, 926, fn. 10, 83 Cal.Rptr. 809, 464 P.2d 473.)

Our major concerns in determining that Boykin was not to be accorded retroactive effect were the extent of reliance on the old rule and the effect of the new rule on the administration of justice if applied retroactively. (In re Tahl, supra, 1 Cal.3d 122, 134--135, 81 Cal.Rptr. 577, 460 P.2d 449.) Although only seven months elapsed between the decision in Boykin, June 2, 1969, and that in Mosley, January 30, 1970, and the burden on the administration of justice would be much less, we believe the same considerations govern since the purpose of the new rule is primarily prophylactic.

Reliance on former practice in accepting stipulations to submit cases for decision on the transcript of the preliminary hearing was not unwarranted subsequent to Boykin. That decision did not sufficiently cast doubt on the continued acceptability of the former practice to give adequate notice to trial judges of the need to examine such stipulations prior to acceptance and to determine if, under the facts of the particular case as they appeared at the time the stipulation was offered, it was tantamount to a plea of guilty. Both Boykin and Tahl dealt only with the entry of the guilty plea itself. Nor did Brookhart v. Janis (1966) 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314, afford such foreknowledge, for there it was conceded by the Ohio trial and supreme courts that the state procedure of 'prima facie case' by which the defendant had been convicted was 'the practical equivalent of a plea of guilty.' (384 U.S. at p. 7, 86 S.Ct. at p. 1248.) Since the Ohio procedure considered in Brookhart was in all cases the equivalent of a plea of guilty, it would not be unreasonable to expect trial courts to recognize the applicability of Boykin to that procedure. It does not follow, however, that trial courts should have anticipated extension of Boykin to the California procedure of stipulating to submission on the transcript of the preliminary hearing, a procedure which in many instances is entirely consistent with a defendant's continued assertion of innocence. (See In re Mosley, 1 Cal.3d 913, 924, fn. 9, 83 Cal.Rptr. 809, 464 P.2d 473.)

Therefore, not until our decision in Mosley could we reasonably expect trial judges to consider the possible necessity to apply the rules enunciated in Boykin and Tahl to the acceptance of stipulations to submit causes on the transcript of a preliminary hearing, or to subsequent stipulations. It was for that reason that we said in Mosley: 'We think it clear, however, that Boykin and Brookhart, 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 self-incrimination, his right to trial by jury, and his right to confront his accusers.' (In re Mosley, supra, 1 Cal.3d 913, 926, fn. 10, 83 Cal.Rptr. 809, 816, 817, 464 P.2d 473, 480--481.) In imposing these requirements only 'in the future,' i.e., to stipulations made subsequent to January 30, 1970, the date of our decision in Mosley, we gave recognition to the justifiable reliance of the trial courts on the adequacy of the former practice. Both the trial judge and counsel for defendant demonstrated commendable foresight here in anticipating Mosley when the stipulation to submit the matter on the transcript was offered. Their failure to recognize that the Voir dire should have been repeated with respect to defendant's waiver of his right of confrontation by and cross-examination of those witnesses whose evidence was considered as a result of the second stipulation, or to establish on the record that defendant was aware that his plea was tantamount to a plea of guilty and...