People v. Kramer

• Decision Date: 13 May 1964
• Docket Number: Cr. 8055
• Citation: 38 Cal.Rptr. 487,227 Cal.App.2d 199
• Parties: The PEOPLE, Plaintiff and Respondent, v. Thomas D. KRAMER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 487

38 Cal.Rptr. 487

227 Cal.App.2d 199

The PEOPLE, Plaintiff and Respondent, v. Thomas D. KRAMER, Defendant and Appellant.

Cr. 8055.

District Court of Appeal, Second District, Division 4, California.

May 13, 1964.

Hearing Denied July 8, 1964.

Stiles Wegener, Palos Verdes Estates, under appointment by District Court of Appeal, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Peter H. F. Graber, Deputy Atty. Gen., for plaintiff and respondent.

JEFFERSON, Justice.

By information, defendant was charged with one count of robbery and four counts of forgery. The information also alleged a prior felony conviction. In a jury trial, in which defendant chose to represent himself in propria persona, he was found guilty as charged. Thereafter, the robbery count was dismissed, defendant's motion for new trial, as to the counts charging him with forgery, was denied, as was probation, and he was sentenced to the state prison for the term prescribed by law, the sentences on each count to run concurrently. ¹

No issue is raised as to the sufficiency of the evidence to support the judgment. The single contention made by defendant's court appointed counsel is that the trial court erred by failing to advise defendant, who represented himself at the trial, of his privilege against self-incrimination as guaranteed by Article I, Section 13 of the California Constitution. It is urged that, under the circumstances of this case, the trial court had the duty to advise defendant of his right not to take the witness stand to testify in his own defense.

A resume of the instructions given by the trial judge during the course of the trial, relative to defendant's testifying, follows: At the inception of the trial, before the jury was called, the judge asked the defendant whether he wished to admit or deny a prior conviction alleged in the information. At this time the judge advised him, 'If you admit the fact of this prior felony, the fact of this felony or conviction, if such is the case, can only be brought out if you take the witness stand on your own behalf.' The court then stated: 'The district attorney cannot before the jury bring out any evidence of this prior felony if it is now admitted. He can, however, even if it is admitted, in the event you take the stand on your own behalf, then ask you the question of whether or not you have ever been convicted of a felony, which is admissible in the matter of impeaching you.' After the prosecution had presented its case, the court instructed defendant:

'Mr. Kramer (defendant), as I previously explained to you, this is the defendant's time to proceed with his case. You may, if you desire, make an opening statement, and then proceed wth your evidence.'

MR. KRAMER: 'In other words, take the stand?'

THE COURT: 'As I have told you, you will also have an opportunity to sum up the case. Do you wish to make an opening statement to the jury, or do you wish to go onto the witness stand, or do you wish to call some witness?'

When defendant continued to question the procedure to be followed in putting on his defense, the court further instructed him:

'You are entitled to make a statement to the jury as to what, in your opinion, the evidence which you will introduce will show. Following that you may, if you desire, either take the stand yourself or call any witness that you have. I am merely outlining the procedure. Now, what you do is, of course, for you and you alone to determine.' After making an opening statement, defendant took the witness stand. Before giving his testimony however, he asked if the deputy district attorney would 'interrogate' him. The court replied that the prosecutor 'has the right to interrogate you on the things that you testify to on direct--or your own examination.'

Though it is apparent that the court properly advised defendant that he had various procedural alternatives which he could follow in presenting his case, nowhere does the record indicate that defendant was informed he had the privilege to refuse to testify.

The issue presented in the instant case is whether the trial judge has a duty to inform the accused of his constitutional right not to testify where the accused is not represented by counsel, and if so, does the fact that the accused voluntarily takes the stand constitute a waiver of the privilege?

It is clear that a defendant, who is represented by counsel, waives his privilege not to testify if he voluntarily takes the stand. (People v. Huerta, 148 Cal.App.2d 272, 306 P.2d 505; People v. De Georgio, 185 Cal.App.2d 413, 8 Cal.Rptr. 295.) The People maintain that the same result should follow in the situation, where as here, the defendant is not represented by counsel.

No California case has been cited which passes on this precise question. Killpatrick v. Superior Court, 153 Cal.App.2d 146, 314 P.2d 164 is closest in point. There, the defendants, who were not represented by counsel, were called by the prosecution to testify in a contempt proceeding. In annulling the judgments of conviction, the court said (153 Cal.App.2d p. 149, 314 P.2d p. 166): 'The privilege [against self-incrimination] cannot be made truly effective unless the defendant in a criminal case who is not represented by counsel is advised by the court of the existence of the privilege whenever such advice apppears to be necessary. [Citations.]' The court further stated (153 Cal.App.2d p. 150, 314 P.2d p. 167): 'It is axiomatic that a person may waive the privilege against self-incrimination. But any such waiver 'must be informed and intelligent. There can be no waiver if the defendants do not know their rights.' [Citation.]' The court concluded (153 Cal.App.2d pp. 150-151, 314 P.2d p. 167): 'By requiring petitioners, who were without the aid of counsel, to testify without advising them of their constitutional rights, the court violated their privilege against self-incrimination. And petitioners cannot be said to have waived their privilege since such waiver must be 'informed and intelligent' in order to be voluntary. [Citation.]'

Should the rule be any different than as stated by the court in Killpatrick, supra, where, as in the instant case, there is no element of compulsion--where the accused freely takes the stand? We think not. The court in Cochran v. State, Fla.App., 117 So.2d 544, 79 A.L.R.2d 638 was called upon to rule on the issue now before us. The accused, who was not represented by counsel, was advised by the trial judge, at the conclusion of the prosecution's case, that he could then make any statement he wished. The state, as in the instant case, urged that there was no error in the court's failure to advise the...