MACK VERNON BUNNELL, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
S.F. No. 23128
In Bank
Feb. 27, 1975
13 Cal.3d 592
Sylva, Rubnitz, Dinapoli, Hastings, Holden & Livak and Thomas C. Hastings for Petitioner.
No appearance for Respondent.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O‘Brien, Assistant Attorney General, Robert R. Granucci and Herbert F. Wilkinson, Deputy Attorneys General, for Real Party in Interest.
WRIGHT, C. J.—Petitioner seeks a writ of prohibition to restrain the respondent superior court from proceeding to trial on an information charging him with murder unless it is stipulated that the offense may be no greater than second degree murder. (
Double Jeopardy—Former Acquittal
Petitioner contends that a prior proceeding which culminated in his conviction of second degree murder was a trial in which he was in jeopardy of conviction of first degree murder, that he was thereby impliedly acquitted of the greater offense, and that to force him to again stand trial on a charge of first degree murder is to punish him for successfully exercising his right of appeal. The People contend, on the other hand, that petitioner has never been in jeopardy of conviction for first degree murder, that the prior proceedings were not a trial which culminated in an acquittal of that degree of the offense, and that rather than penalizing petitioner for successfully exercising his right of appeal the pendency of the charge reflects the return of the case to the status quo ante following the reversal of the earlier judgment. An understanding of these contradictory positions and the issues thus raised necessitates a review of the procedural history of the case, for which purpose we have taken judicial notice of relevant records of the respondent court and of the decision of the Court of Appeal in which the earlier judgment was reversed. (
Petitioner was charged by information with the September 4, 1972, murder of his wife, and with being armed with a knife in the commission of the offense. (
Petitioner subsequently stipulated to consideration by the court of a
On petitioner‘s appeal from the judgment, the Court of Appeal reversed the judgment on the ground that petitioner had believed he would have a trial at which he would testify in his own behalf, but that he had been denied a fair trial because the court had prejudged the case and had already decided that petitioner was guilty of second degree murder before hearing his defense. The People now argue that the opinion of the Court of Appeal is ambiguous and does not hold that the proceedings in the superior court were a trial of the issue of petitioner‘s guilt rather than what is characterized as a “slow plea” of guilty. Reversal of the judgment would have been proper on grounds that while court and counsel considered the submission to be a slow plea, the record demonstrated as a matter of law that petitioner did not intend to admit his guilt and did not understand the effect of the submission and that therefore his waiver of his rights and his agreement to submit the cause for decision on the reporter‘s transcript of the preliminary hearing were not voluntary and intelligent. (People v. Gallegos (1971) 4 Cal.3d 242, 249 [93 Cal.Rptr. 229, 481 P.2d 237].) The Court of Appeal did not base its decision on that ground, however, but held that petitioner did not receive a fair trial. Implicit in that holding is a conclusion that the proceedings did constitute a trial. The judgment became final when the People did not seek further review and the subsequent proceedings which are the subject of the instant petition must be considered in light of that ruling. (People v. Durbin (1966) 64 Cal.2d 474, 477 [50 Cal.Rptr. 657, 413 P.2d 433].) Further, as we shall explain, whether or not the prior proceeding was a “slow plea,” it did constitute a trial for all purposes relevant to the issues now before us.
Neither petitioner nor the People has fully outlined the proceedings in the superior court which followed the issuance of the remittitur. It appears, however, that when the case was again set it appeared on the docket for trial on a charge of second degree murder. New counsel was appointed for petitioner and a jury trial was requested. At the hearing on a subsequent motion for a change of venue the People argued that the case had been returned to the same status it had occupied when the information was filed, i.e., that petitioner stood charged with first degree
Petitioner thereupon sought leave to enter a plea of former jeopardy (
Although the double jeopardy clause of the Fifth Amendment to the United States Constitution and the standards developed in its application by the United States Supreme Court apply to the states through the due process clause of the Fourteenth Amendment (Benton v. Maryland (1969) 395 U.S. 784, 795-796 [23 L.Ed.2d 707, 716-717, 89 S.Ct. 2056]), states are not precluded from applying more stringent standards or extending greater protection and California has done so. (See, e.g.,
Under the related doctrines of double jeopardy and former acquittal, jeopardy attaches when a defendant is placed on trial on an accusatory pleading in a court of competent jurisdiction, and a jury is impaneled and sworn, or, if jury trial has been waived, the trial “entered upon” by the reception of evidence or otherwise. (Richard M. v. Superior Court (1971) 4 Cal.3d 370, 376 [93 Cal.Rptr. 752, 482 P.2d 664]; Curry v. Superior Court, supra, 2 Cal.3d 707, 712.) A defendant who has been convicted of a lesser degree or lesser included offense than that charged in the accusatory pleading is deemed to have been acquitted of the greater charge. He may not be retried for any offense of which he has
A defendant who submits his case for decision on the basis of the transcript of the preliminary examination agrees that the transcript may be considered in lieu of the personal testimony of the witnesses who appeared at the preliminary hearing. His trial is therefore “entered upon” when the stipulation to submit the case is accepted by the court. That acceptance is analogous to the swearing of a witness or the reception of evidence and, for purposes of placing the defendant in jeopardy, has the same effect. This is true whether or not the submission is “tantamount to a plea of guilty” and thus requires that the defendant be advised of the constitutional rights he thereby waives (Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709]; In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449]; People v. Gallegos (1971) 4 Cal.3d 242 [93 Cal.Rptr. 229, 481 P.2d 237]), and irrespective of whether the submission is made pursuant to a bargained-for agreement. Notwithstanding such agreements or the fact that conviction is a foregone conclusion, a submission of the cause for decision on the transcript is a trial.4
The People attach unwarranted significance and claim consequences unauthorized by statute to this submission and others which they characterize as “tantamount to a plea of guilty.” That phrase was used in In re Mosley (1970) 1 Cal.3d 913, 926, footnote 10 [83 Cal.Rptr. 809, 464 P.2d 473], to explain our extension of the Boykin-Tahl requirements to submissions in which the guilt of the defendant was apparent on the basis of the evidence presented at the preliminary hearing and in which conviction was a foregone conclusion if no defense was offered. In Boykin v. Alabama, supra, 395 U.S. 238, the United States Supreme Court held that a defendant who pleads guilty must be shown to have
We did not purport to hold in Mosley that a submission has the same consequences as a guilty plea or that it may be equated to a guilty plea for other purposes, nor could we do so. The permissible pleas and the form in which they must be entered are specified by statute. (
Many of the consequences which follow the entry of particular pleas are also of statutory or constitutional origin and are not subject to diminution by judicial fiat. Thus a defendant who has entered a plea of not guilty is entitled to the presumption of innocence and to require the People to assume the burden of overcoming that presumption by introducing evidence sufficient to establish his guilt beyond a reasonable doubt. (
Similarly, a defendant convicted of a criminal offense has a statutory right to appeal from the judgment unless the conviction is based on a plea of guilty or a plea of nolo contendere. (
In summary, the defendant who submits his cause on the transcript does not give up his right to any trial, only to a jury trial, and, unless otherwise specified, to present additional evidence in his own defense. He preserves his right to appeal and to present argument at trial and on appeal regarding the sufficiency of the evidence and its legal significance, and to raise other appropriate issues, irrespective of any “foregone conclusion” or understanding that he will be found guilty. Thus, the characterization of the prior proceedings as a “trial” or, as the People suggest, a “slow plea” is irrelevant to our inquiry.
The People‘s argument, and the failure of some trial and appellate courts to recognize that submissions are trials even when conviction is certain apparently arise out of our use of the “tantamount to a plea of guilty” language in In re Mosley, supra, 1 Cal.3d 913, 926, footnote 10, and our limited extension of the Boykin-Tahl requirements to only those submissions in which the defendant acknowledges that conviction was probable. That limitation, of course, followed from the fact that Mosley was compelled by Boykin v. Alabama, supra, 395 U.S. 238, which involved only pleas of guilty. The procedural contexts in which the Boykin requirements were first enunciated and in which they have since been found either expressly applicable or appropriate though not compelled (In re Mosley, supra, 1 Cal.3d 913; In re Sutherland (1972) 6 Cal.3d 666 [100 Cal.Rptr. 129, 493 P.2d 857]; People v. Levey (1973) 8 Cal.3d 648 [105 Cal.Rptr. 516, 504 P.2d 452]; In re Yurko (1974) 10 Cal.3d 857 [112 Cal.Rptr. 513, 519 P.2d 561]; Mills v. Municipal Court (1973) 10 Cal.3d 288 [110 Cal.Rptr. 329, 515 P.2d 273]) have tended to obscure the fact that the objectives of those requirements, i.e., assurance that the defendant is aware of his basic constitutional rights, that his waiver is both voluntary and intelligent, and that his decision to waive these rights is made with an understanding of the consequences thereof, are no less important when the defendant surrenders all or substantially all of those rights by a submission in which he contests his guilt by reserving the right to present additional evidence or to present legal argument in defense of the charge.
Therefore, although some of our requirements are not constitutionally compelled, we have concluded that effective upon the date on which this opinion becomes final, 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.,
We are satisfied that compliance with these requirements will not unduly burden trial courts, some of which have anticipated most if not all of the requirements set forth herein.6 The additional burden, if any, will be far outweighed by the benefits of assuring criminal defendants that the full panoply of constitutional and statutory rights provided by
Although, as explained above, a submission on the transcript is a trial whether or not it is “tantamount to a plea of guilty,” is a “slow plea,” or is a part of a “bargain” with the prosecutor, that conclusion does not answer the inquiry whether a submission accompanied by an express stipulation by the People that the defendant will be convicted of a lesser degree or lesser offense than that charged in the accusatory pleading places the defendant in jeopardy as to the greater offense.
It is settled that jeopardy as to an offense of which a defendant has been convicted continues during appellate proceedings and retrial following reversal of the judgment, but ends as to offenses of which he has been expressly or impliedly acquitted. (Price v. Georgia, supra, 398 U.S. 323; Green v. United States (1957) 355 U.S. 184 [2 L.Ed.2d 199, 78 S.Ct. 221, 61 A.L.R.2d 1119].) However, jeopardy attaches only when a defendant is brought to trial on the offense charged in the accusatory pleading. In Price the defendant had been charged with and tried for murder, but had been convicted by a jury of voluntary manslaughter. After reversal of the judgment on appeal he was again placed on trial for murder under the original indictment. His plea of autrefois acquit was rejected and he was again convicted of manslaughter. Reversing the judgment, notwithstanding the fact that the conviction was for the lesser offense and no greater punishment had been imposed, the court reaffirmed its prior holdings that the Fifth Amendment protection against double jeopardy protects not against being twice punished but against being twice put in jeopardy. The court explained that “the ‘twice put in jeopardy’ language of the Constitution thus relates to a potential, i.e., the risk that an accused for a second time will be convicted of the ‘same offense’ for which he was initially tried.” (398 U.S. at p. 326 [26 L.Ed.2d at p. 303].) The court further explained that its decision was based on the reasoning of Green v. United States, supra, 355 U.S. 184, that when a defendant had been convicted of a lesser offense than that charged, and had thus been impliedly acquitted of the greater charge, “jeopardy on the greater charge had ended when the first jury ‘was given a full opportunity to return a verdict’ on that charge and instead reached a verdict on the lesser charge.” (Id., at pp. 328-329 [26 L.Ed.2d at p. 305].) The court concluded that reversal of the judgment
Applying the rules discussed above in light of Price we conclude that petitioner was never placed in jeopardy of conviction of first degree murder. At the time jeopardy attached in his trial, i.e., when the submission was accepted by the court, he was not exposed to the risk of conviction of first degree murder, there has therefore been no implied acquittal of that offense, and the trier of fact has been given no opportunity to find him guilty of first degree murder.
However, the fact that the constitutional doctrine of double jeopardy may not bar prosecution of petitioner for first degree murder on retrial does not end our inquiry. Notwithstanding the fact that the People initially charged petitioner with murder without limitation as to degree, they proceeded to trial on a reduced charge of second degree murder when they stipulated at the outset of the trial that petitioner could be convicted of no greater offense. Penal Code section 1023 provides: “When the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that accusatory pleading.”
Interpreting that section in People v. Greer (1947) 30 Cal.2d 589, 597 [184 P.2d 512], we held: “Although section 1023 refers to a situation where the prosecution for the greater offense is first in time, there is no such limitation in the cases. If the defendant is tried first for assault and later for battery, the prosecution for the included offense bars the subsequent prosecution for the greater offense. [Citations.] ‘A conviction of the lesser is held to be a bar to [the] prosecution for the greater on the theory that to convict of the greater would be to convict twice of the lesser.’ (People v. Krupa [64 Cal.App.2d 592] at p. 598 [149 P.2d 416].) If this were not the rule, section 1023 could be vitiated by the simple device of beginning with a prosecution of the lesser offense and proceeding up the scale.”
In the case before us petitioner was placed in jeopardy on a charge of second degree murder when the court accepted the agreement of the
Therefore, although the People are correct in their assertion that the reversal of the prior judgment without directions by the Court of Appeal returned the case for trial on the original accusatory pleading in the posture in which it had been prior to the waiver of jury trial and stipulation to submit the cause on the transcript, it does not follow that petitioner may be tried for or convicted of first degree murder. Thus, although petitioner is no longer bound by his waivers and stipulation, having once been tried for second degree murder he may not now be tried for or convicted of a greater offense.
Venue
Petitioner contends that widespread publicity surrounding the death of his wife and subsequent civil suits filed by her heirs, as well as the interjection of the opinion of the Court of Appeal reversing the prior judgment into the June 1974 primary campaign by a candidate for judicial office have created a reasonable likelihood that a fair trial cannot be had in Santa Clara County. His motion for change of venue made pursuant to
It is the duty of the reviewing court to make an independent evaluation of the record and to satisfy itself de novo that the defendant
In support of his motion petitioner calls to our attention three newspaper articles containing factual reports of the circumstances of the homicide, all published within two days of the event; a follow-up article presenting an official denial of improper police procedure and a councilman‘s call for an investigation of the reason for the failure of the police to respond to the victim‘s request for protection after petitioner allegedly threatened her; and two brief notices of the forthcoming funeral services for the victim which recalled the circumstances of her death. All of these articles were published in September 1972, more than two years ago.
In addition petitioner notes two November 1972 newspaper articles reporting that the victim‘s heirs had filed a lawsuit against the City of San Jose, and another November 1972 article reporting the conviction of petitioner following his first trial; an April 1973 article about the filing of a lawsuit by the estate of the victim; a January 1974 article reporting the reversal of the prior judgment; and, finally, two articles published in February and March 1974 about a contest for the superior court seat occupied by the judge who had presided over the first trial in which the challenger was quoted as having attacked the incumbent‘s qualifications on the basis of the opinion of the Court of Appeal that the latter had denied petitioner a fair trial.
None of the news stories was of a sensational or inflammatory nature. The reporting was essentially factual. The stories were relatively brief, none more than 12 to 15 column inches and most much shorter. None was accompanied by large headlines denoting a major news story. There is no basis to suppose either that the reports attracted unusual interest in the case at the time they were published, or that, if such interest did exist, it continues to the present. In short, none of the factors which led us to conclude in Frazier and in Maine that a reasonable likelihood existed that the petitioners in those cases could not receive a fair trial in the counties of original venue is apparent here. The motion for a change of venue was properly denied.
The alternative writ heretofore issued is discharged. The petition is denied insofar as it seeks to compel a change of venue. Let a peremptory writ of mandate issue directing the superior court to proceed in accordance with the views expressed herein.
Tobriner, J., Mosk, J., Sullivan, J., and Burke, J., * concurred.
CLARK, J.—I dissent. Even if the doctrine of the law of the case precludes us from treating this submission as a “slow plea” (ante, p. 600; see generally 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 633 et seq.), this case is at least analogous to those where a conviction based upon a negotiated plea is set aside because of the trial court‘s failure to obtain constitutionally required waivers.
In In re Sutherland (1972) 6 Cal.3d 666 [100 Cal.Rptr. 129, 493 P.2d 857], the defendant pleaded guilty to one count in return for dismissal of the remaining four counts. In setting aside the conviction on habeas corpus, this court ordered all five counts restored to the superior court calendar. “Since by granting relief we are in effect permitting defendant to withdraw his guilty plea, the ends of justice require that the status quo ante be restored by reviving the four dismissed counts.” (Id. at p. 672.) A successful attack upon a guilty plea on direct appeal resulted in a like disposition in People v. Kirkpatrick (1972) 7 Cal.3d 480, 487 [102 Cal.Rptr. 744, 498 P.2d 992].
The quid pro quo here was waiver of petitioner‘s right to jury trial in return for a stipulation that he would not be found guilty of first degree murder. Petitioner declined the People‘s offer to reinstate the bargain following reversal of the second degree murder conviction. Therefore, the ends of justice require that the status quo ante be restored by reviving the first degree murder charge, unless it is barred by the doctrine of double jeopardy.
The majority correctly concludes the “constitutional” doctrine of
*Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
However, the majority then holds that section 1023 of the Penal Code, as construed in People v. Greer (1947) 30 Cal.2d 589 [184 P.2d 512], does bar the first degree murder charge. The sole reason given for this otherwise inexplicable conclusion is that, “If the rule were otherwise a defendant charged with and convicted of a lesser included offense could not appeal without running the risk of a new prosecution for a greater inclusive offense, whereas a defendant charged with the greater offense but convicted only of the lesser offense could appeal without running such risk under the doctrine of implied acquittal.” (Ante, p. 608.)
The quoted reasoning does not apply here. Defendant could have appealed “without running the risk of a new prosecution for a greater inclusive offense.” Had he not repudiated the bargain, defendant after reversal could not be tried for the greater offense. A defendant who avoids prosecution for the greater offense by a bargain and then repudiates it is obviously in a substantially different position on retrial from the defendant who did not repudiate the bargain or the one who did not enter into a bargain but was acquitted of the greater offense.
I further dissent from adding verses—admittedly not constitutionally required (ante, p. 605)—to the Boykin-Tahl-Mosley litany.
McComb, J., concurred.