People v. McCoy

• Decision Date: 22 July 1974
• Docket Number: Cr. 23609
• Citation: 40 Cal.App.3d 854,115 Cal.Rptr. 559
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard McCOY, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 559

115 Cal.Rptr. 559

40 Cal.App.3d 854

The PEOPLE, Plaintiff and Respondent, v. Richard McCOY, Defendant and Appellant.

Cr. 23609.

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

July 22, 1974.

As Amended Aug. 6, 1974.

Hearing Denied Sept. 19, 1974.

Nancy L. Kelso, Beverly Hills, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., and William R. Pounders and Jack T. Kerry, Deputy Attys. Gen., for plaintiff and respondent.

STEPHENS, Associate Justice.

By information, defendant and codefendant (not a party to this appeal) were charged in Count I with offering to sell and having sold a restricted dangerous drug (sodium secobarbital), in violation of Health and Safety Code section 11912 (now 11379), and in Count II, with unlawful possession of marijuana, in violation of Health and Safety Code section 11530 (now 11357). The jury found defendant guilty of possession of a restricted dangerous drug, a necessarily included but lesser offense than that charged in Count I. Defendant was acquitted of the offense charged in Count II. Defendant's application for probation was denied and he was sentenced to state prison for the term prescribed by law.

Officer Carter of the Los Angeles County Sheriff's Department arranged through a reliable informant to purchase from defendant a quantity of 'red devils' (a street name for sodium secobarbital). While Carter and the informant were driving to the place where the sale was to take place, the informant observed defendant, who was seated in a car which was parked in front of a house. After Carter stopped the car and the informant had spoken with defendant, Carter and the informant followed defendant to the rear of the house, where there was a detached room. Carter and the informant entered. Several minutes later, defendant appeared with a large quantity of red capsules in a bag. While defendant counted out some capsules from the bag, Carter (who was wired for sound) gave a prearranged signal to the surveillance team of officers to converge and make the arrests. Officer Feiga and other officers arrived at the scene and entered the room when the door was opened as they approached. Feiga observed defendant squatting on a mattress with a large paper bag between his legs containing approximately 1,000 red capsules. There was also a quantity of red capsules in his hand and in a sandwich bag on a nightstand. ¹ Thereupon defendant was arrested.

Defendant's first contention is that his counsel's stipulation as to the chemical composition of the contraband deprived him of his right to confrontation of witnesses. Basically, defendant contends that Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, is applicable where an accused is denied his right of confrontation as a result of his counsel's stipulation which precludes jury consideration of a material element of the offense.

In People v. Chasco, 276 Cal.App.2d 271, 80 Cal.Rptr. 667, this court considered the identical contention now raised by defendant. In rejecting the validity of this contention, we held (at pp. 273--274, 80 Cal.Rptr. at p. 669):

'Turning to the alleged lack of authority of counsel to stipulate to a 'crucial' fact, it is sufficient to say that while proof of the chemical composition of the powder was certainly essential to the People's case, defendant's denial of any connection with it relegated the issue to a subsidiary role. In the Harness (v. Pacific Curtainwall Co., 235 Cal.App.2d 485, 45 Cal.Rptr. 454) case, on which defendant relies, it was held that an attorney did not have the right to stipulate away his client's only interest in the litigation. The distinction is obvious.'

While acknowledging that there was some substance to defendant's argument that Boykin required a showing of waiver, this court noted (at pp. 275--276, 80 Cal.Rptr. at p. 670):

'The solution lies not in logic, but in practicalities. After all, the question is not whether the courts should permit a deprivation of a federal constitutional right to go without redress; rather it is the extent to which, on direct appeal, the trial record must negative possible violations. In Boykin the court held that when the conviction is based on a guilty plea, the record must so show; but, as the dissent points out, even if the court had held otherwise, Boykin could have attempted to establish in habeas corpus proceedings that he pleaded in ignorance. As long as collateral relief is available the question becomes simply this: when does the need of the trial court to get on with its business take a back seat to the desirability of negativing the need for such further proceedings.

'In this case we deal with a simple stipulation of fact, not fatal to the defense or even contradictory to the defendant's position at the trial. We are convinced that in such a case the Constitution does not demand affirmative demonstration that it has not been violated. Just where the line between a guilty plea and a stipulation of fact such as ours should be drawn, we need not attempt to determine. There may be stipulations of fact so destructive of the accused's position at the trial that to permit them to be made without a showing of his intelligent consent is to court reversal. This is not such a case. (Fns. omitted.)'

The development of the law with respect to when the policies enunciated in Boykin are applicable does not convince us that the ruling in Chasco is not still viable. Boykin has been extended to situations which are the functional equivalent of a plea of guilty, such as the submission of the case on the preliminary transcript or a 'slow plea.' (In re Mosley, 1 Cal.3d 913, 83 Cal.Rptr. 809, 464 P.2d 473.) In the recent case of In re Yurko, 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561, our Supreme Court extended Boykin to situations where the defendant is called upon to plead to a charge of having suffered a previous felony conviction. In holding that there must be a specific and express showing that defendant waived his constitutional rights attendant to an admission of prior felony convictions, the court stated (395 U.S. at p. 862, 112 Cal.Rptr. at p. 516, 519 P.2d at p. 564):

'The admission of the truth of the allegation of prior convictions has been differentiated from a plea of guilty through a characterization of the former as merely allowing a determination of a 'status' which can subject an accused to increased punishment. (See In re McVickers (1946) 29 Cal.2d 264, 176 P.2d 40; People v. Franco (1970) 4 Cal.App.3d 535, 84 Cal.Rptr. 513.) Although this may be technically correct, the distinction is meaningless if, as in the case of a plea of guilty, the accused nevertheless will be held to have waived, without proper protections, important rights by such an admission. Undoubtedly the particular rights waived by an admission of the truth of the allegation of prior convictions are important. Although there is not at stake a question of guilt of a substantive crime, the practical aspects of a finding of prior convictions may well impose upon a defendant additional penalties and sanctions which may be even more severe than those imposed upon a finding of guilt without the defendant having suffered the prior convictions. Thus a finding of prior convictions may foreclose the possibility of probation (§ 1203), may extend the term for the basic crime to life imprisonment (§ 644), and may substantially extend the time served on such a life sentence before the defendant becomes eligible for parole (§§ 3046--3048.5).'

We do not believe that the factors which influenced the Yurko court to apply the Boykin rules to admissions of priors necessitate the same approach to the question of stipulations of counsel to certain Factual matters. A decision not to require the People to prove by expert testimony the forbidden status of the seized substance does not amount to a significant deprivation of a defendant's constitutional rights. Absent an attack upon the accuracy of the test performed or other error in connection with the determination of the chemical composition of the evidence, defense counsel and defendant have nothing to gain by a refusal to stipulate. ² Indeed, where counsel knows that the seized substance is what the chemist will say it is and counsel cannot hope to discredit that conclusion, a stipulation generally avoids the dramatization of the nature of the substance before the jury. The decision by counsel to enter into the type of stipulation here in question parallels the type of tactical decisions which counsel must make as to which witnesses to call on defendant's behalf and to what extent the People's witnesses are to be cross-examined. These aspects of counsel's professional discretion do not lend themselves to the strictures attendant to a guilty plea or its equivalent. Under the standard that the assistance of counsel must be commensurate with the due process right to fair trial (People v. Sharp, 7 Cal.3d 448, 103 Cal.Rptr. 233, 499 P.2d 489; People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487), it cannot be said that every tactical trial decision must be reviewed by the defendant and only allowed where his consent is secured and expressly set forth in the record. ³ (Cf., Henry v. Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564, 13 L.Ed.2d 408.)

Defendant next contends that his motion to dismiss the information (Pen.Code, § 995) should have been granted because (1) the stipulation relative to the chemical nature of the seized substance was invalid hence the evidence was not properly before the court; and (2) since the entry by the police officers was in violation of Penal Code section 844, the evidence thereby obtained (secobarbital) was therefore inadmissible. ⁴ For the reasons heretofore stated, we find no merit in contention (1). Contention (2) is likewise without merit.

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