People v. Sanchez
| Decision Date | 31 March 1972 |
| Docket Number | Cr. 4735 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond Frederick SANCHEZ, Defendant and Appellant. |
Victor Sherman and Nasatir, Sherman & Hirsch, Beverly Hills, and Harry E. Weiss, Hollywood, for defendant and appellant.
Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Mark A. Levin, Deputy Atty. Gen., for plaintiff and respondent.
Following defendant's unsuccessful motions in the superior court to suppress evidence (Pen.Code, § 1538.5(i)) and to set aside the information (Pen.Code, § 995), the case was submitted on the transcript of the preliminary hearing. The submission on the transcript was tantamount to a guilty plea and was actually part of a negotiated disposition. The court found defendant guilty of possession of marijuana (Health & Saf.Code, § 11530), alleged priors were stricken, probation was denied and defendant was sentenced to state prison.
Defendant appeals from the judgment contending: (1) the record does not disclose a proper advisement and waiver of his privilege against self-incrimination; (2) the evidence is insufficient to support his conviction; and (3) the incriminating evidence resulted from a search and seizure made pursuant to an invalid search warrant. In connection with the latter contention, defendant points to several irregularities in the proceedings in the municipal court prior to filing of the information. Although defendant asserts these irregularities in his arguments concerning the validity of the search warrant, they are more appropriately germane to the question whether defendant's motion to set aside the information was improperly denied.
The information charged defendant and Joan Kathy Sanchez, also known as Joan Weimer, 1 jointly with one count of possession of marijuana (Health & Saf.Code, § 11530). It was also alleged in the information that defendant had suffered two prior convictions of violation of Health & Safety Code, section 11530. Throughout the proceedings below, defendant and the female co-defendant were represented by the same privately retained attorney. After their sections 1538.5 and 995 motions were denied, the case was submitted for decision on the basis of the transcript of the preliminary hearing. Following are pertinent excerpts from the transcript of the submission:
'MR. CALLEN (defense counsel): Submit on the transcript with the understanding that the priors be stricken and that Mr. Sanchez be found guilty of one count of 11530 of the Health & Safety Code; be referred to probation and Miss Weimer be found guilty of one count of 11556, Health & Safety Code (), one year summary probation and as a condition of probation she violate no law and that she submit to search and seizure.
'MR. PATTERSON (prosecuting attorney): I believe for Mrs. Sanchez that the 556 was to be the lesser included of the 530 since it isn't alleged in that count.
(Emphasis supplied.)
The reason for submitting on the report (sic) is the case of People versus White which is up before the U.S. Supreme Court. 2
That is the reason for submitting.
'THE COURT: Find the defendant (Raymond Frederick Sanchez) guilty of 11530.'
In accordance with the understanding stated by defense counsel, the female codefendant was found guilty of a misdemeanor violation of Health & Safety Code, section 11556 and granted summary probation and defendant was found guilty of violating section 11530 and referred to the probation office for investigation and report. Subsequently, again in accordance with the understanding stated by defense counsel, defendant's alleged prior convictions were ordered stricken.
Unquestionably, defendant is correct in characterizing the submission on the transcript in the case at bench as tantamount to a guilty plea. While defendant argued insufficiency of the evidence at the preliminary hearing and attempts to argue that point on appeal (infra), no such argument or contention was presented to the trial court at the time of submission. On the contrary, the submission was made on the express understanding that defendant would be found guilty of a violation of Health & Safety Code, section 11530, and the court told defendant that he would be found guilty of that offense. Manifestly, the submission of the case in this fashion was part of a negotiated disposition by which, in substance, defendant agreed to plead guilty to the offense charged in exchange for having stricken the alleged prior convictions which, otherwise, might have substantially increased the minimum period of defendant's imprisonment (see Health & Saf.Code, § 11530). Indeed, according to defense counsel's statement, the only reason for submitting on the transcript rather than entering a plea of guilty or Nolo contendere was the preservation of defendant's right to seek appellate review of the validity of the search warrant on the basis of an issue involved in United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453. (See fn. 2, Ante, and accompanying text.) 3
Noting its recent decision in In re Tahl, 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 460 P.2d 449, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, the California Supreme Court in In re Mosley, 1 Cal.3d 913, 926, fn. 10, 83 Cal.Rptr. 809, 816, 464 P.2d 473, 480, instructed 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.' (Original italics; see also People v. Gallegos, 4 Cal.3d 242, 248, 93 Cal.Rptr. 229, 481 P.2d 237.) Initially, the Attorney General urges that the quoted language from the footnote in Mosley later quoted in the text of Gallegos was a dictum; that, insofar as the enumeration of rights is concerned, it was borrowed without expressed consideration of the rights involved from Tahl (1 Cal.3d at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449); and that, even though a particular submission on the transcript of the preliminary hearing may be tantamount to a guilty plea, it is nevertheless not an express admission of guilt and that, therefore, no express waiver of the privilege against self-incrimination is required. On other facts this argument might have some appeal, 4 but, where, as here, the submission is made on the express understanding that guilt be found, the defendant is expressly informed he is going to be found guilty, and the submission is in fact a plea of guilty made as part of a negotiated disposition, it cannot prevail.
Alternatively, however, the Attorney General contends that the record contains a sufficient affirmative showing that defendant was aware of and waived his privilege against self-incrimination to the extent required by Mosley and Gallegos. This contention is sound. As noted in Tahl, the advisement of rights (1 Cal.3d at p. 132, 81 Cal.Rptr. at p. 584, 460 P.2d at p. 456; see also In re Sutherland, 6 Cal.3d 666, 669--670, 100 Cal.Rptr. 129, 493 P.2d 859.)
The record does contain on its face direct evidence that defendant was aware or made aware of his right against self-incrimination. In the italicized portion of he excerpts from the transcript of the submission, Ante, the court, although it did not use the word 'self-incrimination,' did advise defendant, in substance, that nobody could compel him to testify against himself. There can be no question but that defendant knew full well he was, in effect, pleading guilty. The submission was made on the express understanding that he be found guilty, and the court expressly...
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