People v. Tijerina

• Decision Date: 24 October 1969
• Docket Number: Cr. 13547
• Citation: 1 Cal.3d 41,81 Cal.Rptr. 264
• Court: California Supreme Court
• Parties: , 459 P.2d 680 The PEOPLE, Plaintiff and Respondent, v. Roland TIJERINA, Defendant and Appellant.

Page 264

81 Cal.Rptr. 264

1 Cal.3d 41, 459 P.2d 680

The PEOPLE, Plaintiff and Respondent, v. Roland TIJERINA, Defendant and Appellant.

Cr. 13547.

Supreme Court of California,

In Bank.

Oct. 24, 1969.

Richard H. Levin, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Mark A. Ivener, Deputy Atty. Gen., for plaintiff and respondent.

John D. Maharg, County Counsel, Edward H. Gaylord, Asst. County Counsel, and Jean Louise Webster, Deputy County Counsel, as amici curiae on behalf of plaintiff and respondent.

TRAYNOR, Chief Justice.

In these appeals defendant challenges judgments and orders entered against him in three cases on January 31, 1968. A court commissioner acted as a temporary judge ¹ in all three cases. In No. A--220328 and No. A--226235 the commissioner acted pursuant to stipulation of defendant and counsel and appointment by the court, and no contention is made that he was not empowered to act in those cases. In No. 307540, however, no stipulation was entered into authorizing the commissioner to act, and his order revoking probation in that case is challenged on that ground.

In No. A--220328 defendant was found guilty of grand theft (Pen.Code, § 487, subd. 1) and sentenced to prison for the term prescribed by law. He appeals from the judgment.

By stipulation the case was submitted on the transcript of the preliminary hearing. Joe Mena, a security agent for the Broadway Department Store, was told that on several successive Monday nights between 7:30 and 8 a person entered the store with a box on his head or on his shoulders. On Monday evening, March 27, 1967, Mena saw defendant walk through the store and use a stairway marked 'Employees Only.' Mena alerted his partner, Walter Johnson. About 35 minutes later they saw defendant leaving the store with a large box on his head. As they followed, defendant looked back in their direction, dropped the box, and started to run. After a three or four minute chase, Mena and Johnson caught him. The box contained 46 packages of men's undershorts priced at $5 a package, two sweaters priced at $20 each, and one sweater priced at $16.99. The box also contained 13 men's sport shirts and 17 packages of undershorts, the price of which does not appear.

Defendant contends that the retail price of the property does not establish its 'reasonable and fair market value' (Pen.Code, § 484) and that the evidence is therefore insufficient to support a conviction of grand theft for the taking of property worth more than $200. (Pen.Code, § 487, subd. 1.) In the absence of proof, however, that the price charged by a retail store from which merchandise is stolen does not accurately reflect the value of the merchandise in the retail market, that price is sufficient to establish the value of the merchandise within the meaning of sections 484 and 487. (People v. Cook (1965) 233 Cal.App.2d 435, 438, 43 Cal.Rptr. 646.)

Defendant also contends that the evidence is insufficient to establish that the merchandise was taken without the consent of the department store. There is no merit in this contention. One of the security officers testified that he was informed when someone had permission to remove merchandise and that he had not been told that defendant had such permission. Moreover, the manner of the taking, defendant's dropping the box on being discovered, his flight, and the absence of a sales slip are also evidence of lack of consent.

Defendant asserts that his waiver of the right to a jury trial was ineffective, on the ground that he was not told that a jury's verdict must be unanimous. Defendant was represented by an attorney at both the preliminary hearing and at the trial, and he was carefully questioned before his waiver of a jury trial was accepted. ² He stated that he knew what a jury trial was, and he was also told that 'That is when twelve people sit over here in the box and hear all the evidence.' Under these circumstances, the court was not required to explain further to defendant the significance of his waiver of a jury trial. (People v. Langdon (1959) 52 Cal.2d 425, 432, 341 P.2d 303; People v. Golston (1962) 58 Cal.2d 535, 538--539, 25 Cal.Rptr. 83, 375 P.2d 51; People v. Lookadoo (1967) 66 Cal.2d 307, 311, 57 Cal.Rptr. 608, 425 P.2d 208.)

In No. A--226235 defendant was found guilty of petty theft with a prior conviction of a felony. (Pen.Code, § 667.) His motion for a new trial was denied, and he was sentenced to prison for the term prescribed by law. He appeals from the order denying his motion for new trial and from the judgment. The appeal from the order must be dismissed. (People v. Ing (1967) 65 Cal.2d 603, 614, 55 Cal.Rptr. 902, 422 P.2d 590; Pen.Code, § 1237.)

By stipulation the case was submitted on the transcript of the preliminary hearing and the superior court file of the prior conviction (No. 307540) of an assault with a deadly weapon. (Pen.Code, § 245.)

Shortly after the closing hour on October 12, 1967, a saleslady at the J. W. Robinson Department Store saw defendant looking at merchandise. The next day a pile of merchandise was discovered by a store detective on a platform next to a stairway restricted to emergency use by employees. A stakeout was ordered. Shortly after noon, defendant arrived, took a paper bag from his pocket and put a cashmere coat from the pile of merchandise into the bag. He was apprehended in the store. He did not have a sales slip for the coat, which was on sale for $88, and he had not been given permission to take it or any of the merchandise in the pile.

Defendant claims that he did not effectively waive his right to a jury trial. He personally waived his right to a jury trial in this case the day after he waived his right to a jury trial in No. A--220328. Although the inquiry at the time of the waiver was more limited ³ than that in No. A--220328, our holding in that case also applies here.

Defendant contends that section 667 of the Penal Code ⁴ is unconstitutional in providing for an increased penalty based on a prior felony conviction. It is settled, however, that section 667 and similar statutes are not unconstitutional. (People v. Dutton (1937) 9 Cal.2d 505, 507, 71 P.2d 218; People v. Biggs (1937) 9 Cal.2d 508, 512, 71 P.2d 214; People v. Quiel (1945) 68 Cal.App.2d 674, 680, 157 P.2d 446; People v. Collins (1959) 172 Cal.App.2d 295, 301, 342 P.2d 370.)

Defendant maintains that the theft was not complete, on the ground that he did not succeed in removing the coat from the store. Unlike the defendant in People v. Meyer (1888) 75 Cal. 383, 17 P. 431, who attempted to steal an overcoat that was chained to a clothing store dummy, defendant reduced the cashmere coat to his possession. His subsequent failure to remove the coat from the store did not render the theft incomplete. (People v. Quiel, supra, 68 Cal.App.2d 674, 679, 157 P.2d 446; People v. Dukes (1936) 16 Cal.App.2d 105, 108--109, 60 P.2d 197.)

In No. 307540 defendant pleaded guilty to assault with a deadly weapon (Pen.Code, § 245). On March 28, 1966, he was sentenced to prison for the term prescribed by law, but execution of sentence was suspended and he was placed on probation for two years on condition that he spend the first 90 days in jail. As pointed out above, the file in this case was presented to the commissioner on January 31, 1968, to prove defendant's prior conviction as an element of the crime charged in No. A--226235. Defendant does not challenge the 1966 judgment or the order granting probation in No. 307540. His attack is on the commissioner's revocation of probation in that case. Defendant requested a continuance of three to four weeks to obtain private counsel to represent him in the probation revocation proceedings. The temporary judge denied the motion for continuance, revoked probation, and ordered into effect the original 1966 sentence of imprisonment in the state prison for the term prescribed by law. The order is erroneously labelled a judgment, and defendant's notice of appeal states that it is from the judgment entered against him in No. 307540 on January 31, 1968. The order is appealable, however, as an 'order made after judgment, affecting the substantial rights of the party' (Pen.Code, § 1237, subd. 3, now subd. 2), and defendant's notice of appeal will be construed to refer to it. (People v. Robinson (1954) 43 Cal.2d 143, 145, 271 P.2d 872.)

Defendant contends that the order is void on the ground that no stipulation was entered into permitting the commissioner to act as a temporary judge in the case in which it was entered. We agree with this contention.

As revised in 1966, section 21 of article VI of the California Constitution provides:

'On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause.'

The purpose of the Constitution Revision Commission in proposing this revision was to restate the substance of the existing section (then art. VI, § 5) ⁵ concisely in modern terms (see Proposed Revision, supra, fn. 1, p. 98; Estate of Soforenko (1968) 260 Cal.App.2d 765, 766, 67 Cal.Rptr. 563) and to extend the authority to use temporary judges to justice courts. (See 1967 Judicial Council Report, p. 89.) Both before and after the 1966 revision of article VI, however, a stipulation of the parties was constitutionally required for one not occupying the office of judge to serve as a temporary judge. (In re Chapman (1956) 141 Cal.App.2d 387, 390, 295 P.2d 573; In re Wales (1957) 153 Cal.App.2d 117, 119, 315 P.2d 433.) To the extent that Martin v. Martin (1963) 215 Cal.App.2d 338, 339, 30 Cal.Rptr. 293, is to the contrary, it is disapproved.

There is nothing in Code of Civil Procedure, section 259a, subdivision 4 or in RULE 244 OF THE CALIFORNIA RULES OF COURT⁶ contrary to our...