People v. Levey

• Decision Date: 05 January 1973
• Docket Number: Cr. 16485
• Citation: 8 Cal.3d 648,504 P.2d 452,105 Cal.Rptr. 516
• Court: California Supreme Court
• Parties: , 504 P.2d 452 The PEOPLE, Plaintiff and Respondent, v. Steve LEVEY, Defendant and Appellant. In Bank

Page 516

105 Cal.Rptr. 516

8 Cal.3d 648, 504 P.2d 452

The PEOPLE, Plaintiff and Respondent, v. Steve LEVEY, Defendant and Appellant.

Cr. 16485.

Supreme Court of California,

In Bank.

Jan. 5, 1973.

Michael A. Kaiman and Peter L. Knecht, Los Angeles, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Robert R. Granucci, Joyce F. Nedde and Eugene Kaster, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Associate Justice.

Defendant was convicted of violating section 11912 of the Health and Safety Code (sale of a restricted dangerous drug) after stipulating that the case could be decided by the trial court on the basis of the transcript of the preliminary hearing. He contends that the stipulation was tantamount to a plea of guilty (In re Mosley (1970) 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 473), that, therefore, he should have been advised of the constitutional rights he waived by the entry of such a plea, and that the judgment must be reversed because he was not advised of his privilege against compulsory self-incrimination and did not waive that right.

In Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, the United States Supreme Court held that the record must affirmatively establish a defendant was aware of and voluntarily waived the constitutional rights he surrendered by entering a plea of guilty, i.e., the privilege against compulsory self-incrimination, the right to a trial by jury, and the right to confront witnesses. A few months later, we held in In re Tahl, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, that Boykin required a specific and express enumeration to the accused and the waiver by him of these three rights, and that mere inference, no matter how plausibly drawn from the evidence, was not sufficient to meet the constitutional mandate. This holding was reiterated in People v. Rizer (1971) 5 Cal.3d 35, 95 Cal.Rptr. 23, 484 P.2d 1367, and In re Sutherland (1972) 6 Cal.3d 666, 100 Cal.Rptr. 129, 493 P.2d 857. We made it clear in Mosley that whenever a stipulation to submit a case on the basis of the transcript of the preliminary hearing in actuality amounts to a plea of guilty, the record must affirmatively reflect the defendant's waiver of all three of the rights surrendered by a guilty plea. (1 Cal.3d 926, fn. 10, 83 Cal.Rptr. 809, 464 P.2d 473.)

In applying the foregoing rules to the facts of the present case, we must first determine whether defendant's stipulation to submit the case on the transcript of the preliminary hearing was tantamount to a plea of guilty. At the preliminary hearing, an agent employed by the Bureau of Narcotic Enforcement testified that in a conversation with defendant at which one Siegal was present defendant agreed to sell the agent 31 tablets containing LSD for $100. The witness testified further that defendant declined to consummate the transaction directly with the agent, but agreed to leave the tablets at a place of his own choosing and to inform Siegal of their location, whereupon Siegal could transmit the information to the agent. Defendant left the pair, and when he returned he had a conversation with Siegal, who thereafter told the agent the tablets had been left in a parking lot across the street. The agent proceeded to that location, found 31 tablets, which were stipulated to contain LSD, and left $100 as he had been instructed to do.

Defendant's attorney cross-examined the witness generally as to the background of Siegal, but no evidence or argument was offered on defendant's behalf. Nor was any argument offered by defendant at the time he stipulated to the submission of the case on the transcript, and defendant stated that he would offer no evidence. At the time of the submission defendant admitted that he understood the transcript contained only evidence pointing to his guilt and no evidence indicating his innocence, and that the court would in all likelihood find him guilty as charged. Finally, the record reveals that the stipulation was entered into as a result of negotiations between defendant and the prosecution.

Under these circumstances, it cannot be contended seriously that the agreement to submit the matter on the transcript did not amount to a plea of guilty. The People argue, however, that since defendant asserts on appeal that the evidence introduced at the preliminary hearing was insufficient to support his conviction, the stipulation cannot be found to be tantamount to a plea of guilty. There is no merit in this contention. Not only is the testimony at the preliminary hearing clearly sufficient to support defendant's conviction of violating section 11912 of the Health and Safety Code, ¹ but neither at the time of the preliminary hearing nor when the stipulation was made was insufficiency of the evidence asserted by defendant. The stipulation was the result of plea negotiation, and it is clear throughout the proceedings in the trial court that it was assumed by both the People and defendant the stipulation would result in a finding of guilt. (Cf. People v. Sanchez (1972) 24 Cal.App.3d 664, 669--670, 101 Cal.Rptr. 193.)

In resolving this controversy we reach a subject which, although only obliquely referred to by the People, is nevertheless fundamental to the result: whether it is necessary to inform a defendant of his privilege against self-incrimination if the conviction results not from a direct plea of guilty but from a stipulation to submit the case on the transcript under circumstances which are tantamount to a guilty plea. The suggestion has been made that, unlike the situation in which an actual guilty plea is entered, a defendant does not waive his privilege against self-incrimination when he makes such a stipulation since submission on the transcript does not amount to a personal admission of guilt. Therefore, it is asserted, neither advice regarding the privilege against self-incrimination nor an express waiver of the privilege is required if a defendant submits his case on the transcript of the preliminary hearing.

The privilege against self-incrimination is applicable not only to a frank admission of guilt but also to statements which could '(furnish) a link in the chain of evidence needed (for conviction).' (Blau v. United States (1950) 340 U.S. 159, 161, 71 S.Ct. 223, 224, 95 L.Ed. 170.) A defendant who by his stipulation permits the prosecution to prove its case without requiring the production of any evidence in court, other than the transcript of a prior hearing, furnishes far more than a mere link in the chain of evidence. It would exalt form over substance if we were to conclude that a defendant who directly admits his guilt is entitled to the full panoply of rights described in Boykin and Tahl but one who indirectly makes the same admission by uttering a statement which is tantamount to a guilty plea is not entitled to the same rights.

In recognition of these considerations Mosley specifically spells out the privilege against self-incrimination as one of the rights which must be enumerated to a defendant who enters into a stipulation which in fact is tantamount to a plea of guilty. (1 Cal.3d 913, 926, fn. 10, 83 Cal.Rptr. 809, 464 P.2d 473.) Other cases since Mosley have held that the privilege against self-incrimination is one of the rights which must be expressly waived in such a situation. (People v. Dorsey (1972) 25 Cal.App.3d...