People v. Smith

• Decision Date: 31 May 1977
• Docket Number: No. 2710,2710
• Citation: 70 Cal.App.3d 306,138 Cal.Rptr. 783
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Everett Barry SMITH, Defendant and Appellant.

Page 783

138 Cal.Rptr. 783

70 Cal.App.3d 306

The PEOPLE, Plaintiff and Respondent, v. Everett Barry SMITH, Defendant and Appellant.

No. 2710.

Court of Appeal, Fifth District, California.

May 31, 1977.

Hearing Denied July 28, 1977.

Daniel T. Dauenhauer, Sacramento, for defendant and appellant

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., James T. McNally and Gregory W. Baugher, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

GARGANO, Associate Justice.

By information appellant was charged with murder in violation of section 187 of the Penal Code. ¹ Appellant stipulated to submit his case to the court for decision on the basis of the reporter's transcript of the preliminary hearing; he was found guilty of murder in the first degree. Appellant was sentenced to state prison for the term prescribed by law. His appeal raises three main contentions for reversal: that the trial judge failed to inform appellant that his stipulation to submit his case to the court for decision on the transcript of the preliminary hearing was tantamount to a plea of guilty; that the murder prosecution was precluded by appellant's prior robbery conviction since the same transaction played a significant part in both offenses; and that the court lacked the power to sentence appellant on the murder conviction because he still was serving a sentence on his robbery conviction.

On the evening of December 27, 1974, Larry Tanksley walked into a liquor store in Fresno, California, with a .38 caliber snub-nosed pistol with the intent to rob. The liquor store was owned by Thomas Kubota and gunfire was exchanged between the robber and the proprietor; Tanksley was fatally wounded and he died at the Valley Medical Center a few hours later. Kubota, though seriously injured, did not die immediately. However, due to a coronary insufficiency caused by arteriosclerosis, and due to the lowering of blood pressure associated with the shock by the bullet wound, blood was unable to reach Mr. Kubota's heart and he suffered a myocardial infraction moments after he was wounded. ² He died nine months later on September 25, 1975, after suffering acute and chronic heart failure caused by the strain placed on his heart as a result of not having enough living muscle tissue in the heart to keep it functioning properly.

After the attempted robbery, the police discovered that appellant and one Tex McDonald also were involved in the crime; appellant was placed under arrest and taken to the Fresno police station where he gave a confession.

Appellant told the police that several days before the attempted robbery of Kubota's liquor store, Tanksley and two other men came to his house and asked him if he knew where they could obtain a pistol. A couple of days later appellant took Tanksley and Tanksley's two friends to the house of Johnny Coronado; when they discovered that Coronado was not at home, appellant and Tanksley broke into the house and stole Coronado's .38 caliber sunb-nosed pistol. That night appellant, Tanksley and the two other men held up a liquor store in Cedar Heights. A few days later on the evening of December 27, 1974, Tanksley, appellant and Tex McDonald drove to Fresno in a car belonging to McDonald's wife; they located Kubota's liquor store and parked the car a couple of blocks away. McDonald went inside the liquor store to look the place over; when he returned to the car he told Tanksley that 'it looked pretty good.' Tanksley went into the liquor store with the pistol, and appellant and McDonald waited in the vehicle. A short time later, McDonald and appellant saw numerous police cars heading toward the liquor store they drove away in Mrs. McDonald's automobile.

On April 17, 1975, the district attorney of Fresno County filed an information in the superior court of that county (Superior Court Action No. 28908--A) charging appellant with burglary and armed robbery; appellant entered a plea of guilty to first degree robbery and the burglary count was dismissed. On June 18, 1975, appellant was sentenced to state prison on the robbery conviction.

On November 7, 1975, the present action was commenced when an information was filed in the superior court charging appellant with the murder of Kubota. The appellant moved to enter a plea of former judgment of conviction and to dismiss the information on that ground; the motion was denied.

On February 27, 1976, appellant submitted the murder charge to the court for decision on the transcript of the preliminary hearing. The court found him guilty of murder in the first degree and sentenced appellant to prison for the term prescribed by law. In imposing the sentence the trial judge directed that the sentence previously imposed on the robbery conviction in Fresno County Superior Court Action No. 28908--A be stayed pending the finality of the present judgment on the murder conviction and service of sentence as to that conviction, the stay to become permanent when service of the sentence is completed. ³ The court also gave appellant full credit for time served on the robbery conviction.

We considered first appellant's contention that the trial judge committed prejudicial error when he failed to tell appellant that his stipulation submitting his case to the court for decision on the basis of the reporter's transcript of the preliminary hearing was tantamount to a plea of guilty.

In January 1970, the California Supreme Court extended the Boykin requirements (Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274) on guilty pleas, as interpreted in In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, to a stipulation submitting a criminal case to the court for decision on the transcript of the preliminary hearing, if under the circumstances of the particular case the submission was '. . . In fact tantamount to a plea of guilty . . ..' (Original emphasis.) (In re Mosley (1970) 1 Cal.3d 913, 926, fn. 10, 83 Cal.Rptr. 809, 816, 464 P.2d 473, 480.) As a consequence, it was incumbent upon the trial judge to determine in advance whether the submission amounted to a guilty plea and if so, to make certain that the record showed that the defendant had waived his right to a jury trial, his right to confront and cross-examine witnesses, and his privilege against self-incrimination.

On February 27, 1975, the California Supreme Court concluded that the distinction it had drawn between submissions which were tantamount to pleas of guilty and those which were not, posed an unnecessary burden on the trial judges of this state. (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 531 P.2d 1086.) The court abandoned the distinction by adopting an all-inclusive mandatory formula in the form of an admonition to be given by the trial judge in every case where a defendant charged with a criminal offense decides to submit his cause to the court for decision on the transcript of the preliminary hearing. Briefly, the court stated:

'. . . in all cases in which the defendant seeks to submit his case for decision on the transcript or to plead guilty, the record shall reflect that he has been advised of his right to a jury trial, to confront and cross-examine witnesses, and against self-incrimination. It shall also demonstrate that he understands the nature of the charges. Express waivers of the enumerated constitutional rights shall appear. In cases in which there is to be a submission without a reservation by the defendant of the right to present evidence in his own defense he shall be advised of that right and an express waiver thereof taken. If a defendant does not reserve the right to present additional evidence and does not advise the court that he will contest his guilt in argument to the court, the defendant shall be advised of the probability that the submission will result in a conviction of the offense or offenses charged. In all guilty plea and submission cases the defendant shall be advised of the direct consequences of conviction such as the permissible range of punishment provided by statute, registration requirements, if any (e.g., § 290; Health & Saf.Code, § 11590), and, in appropriate cases the possibility of commitment pursuant to Welfare and Institutions Code, sections 3050, 3051, or 6302.' (Emphasis added.) (Bunnell v. Superior Court, supra, 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 310, 531 P.2d 1086, 1094.)

There is, of course, no merit to appellant's position that the court erred in failing to inform appellant that the submission in question was tantamount to a plea of guilty; this requirement is not and never has been the law of this state. Nevertheless, the record shows that before stipulating to the submission, appellant did not reserve the right to present additional evidence. The record also shows that neither appellant nor his counsel advised the court that appellant's guilt would be contested in argument to the court. Thus, the Attorney General commendably calls our attention to the Bunnell decision and concedes that the trial judge was obligated to inform appellant that his stipulation to submit his case for decision on the transcript of the preliminary hearing Probably would result in a conviction of the offense charged. The Attorney General argues that the judge substantially complied with the Supreme Court's mandate when he told appellant, '. . . the Court, under this pleading, could find you guilty of murder in the first degree; and if that's what the finding of the Court is, the punishment is imprisonment for the rest of your life.'

We hesitate to hold that the requirements of Bunnell were met in the case at bench. The statement to which the Attorney General alludes in support of his position that the trial judge told appellant that the submission of the case for the court's decision on the transcript of the preliminary hearing probably would result in a conviction...