*1 No. 21024. Jan. [Crim. 1981.] PEOPLE,
THE Plaintiff and Respondent, CHADD,
BILLY LEE Defendant Appellant.
Counsel *5 Denvir, Defender,
Quin appointment Public under the Su- State Court, Sevilla, Defender, State preme Charles M. Chief Public Deputy Alexander, Defender, Elaine A. Chief Assistant Public Donald L. State Kerson, Defender, Public A. State Harold F. and Deputy Tyvoll Charles R. for Defendant and Appellant. Khoury General, Philibosian, H. Chief George Deukmejian, Attorney Robert General, Kremer, Assistant Daniel J. Assistant Gen- Attorney Attorney eral, Benke, D. Richard and Harley D. Garske Patricia D. Mayfield, General, for Plaintiff Deputy Attorneys Respondent.
Opinion
MOSK, J. Lee Billy Defendant Chadd from appeals judgment im- sentence death following his to a posing plea guilty charge murder, As will we hold that first the trial court degree appear, prejudicial committed error without the consent accepting defendant’s counsel as Code section Because required by Penal 1018. issue, of the limited nature of the we need not recite facts of the case in detail. him, alia,
Defendant was arraigned on a complaint inter charging (count 6), the first degree murder of Linda Hewitt and alleging special circumstances the crime a making capital offense under the stat- (Former Code, utes then in effect. seq., Pen. et added by Stats. § 5-14, 1256-1262.) ch. pp. Defendant entered a not plea of §§ counsel, Pitkin; guilty his David through appointed R. the court denied bail, but set the case for bail review one week later. On that how- day, ever, Mr. appeared Pitkin his client and without informed the court that defendant was in a hospital after to commit suicide. attempting Because disordered, court appeared to the that defendant might mentally the court directed a 72-hour period treatment and undergo (Pen. Code, 4011.6.) evaluation in psychiatric facility. examination, Defendant thereafter waived the and was preliminary arraigned on an information the same presenting essentially charges. The prosecutor announced he would seek the death on count 6. penalty Mr. Pitkin informed the court that defendant to plead wished advice, against that he would consent to client entering observed, such a plea. As “This defendant’s particular basic de suicide, sire is to commit and he’s for the asking cooperation of State in that endeavor.” The then took following colloquy place: Chadd, Mr. counsel has your indicated want you
“The Court: to commit this suicide. You want to have the Court help you doing that. What that? about *6 Honor, true, Your it’s I did I attempt suicide.
“The Defendant: have trial, serious to the of given consequences consideration the charges 1The are as follows: 1: Murder of of 2: basic Count Patricia Franklih. Count Rape Sodomy of Count of Robbery Patricia Franklin. Count 3: Patricia Franklin. 4: Burglary Patricia Franklin. Count 5: Linda of Patricia Franklin’s house. Count 6: of Murder Sodomy Rape 7: of Hewitt. Count of Linda Hewitt. Count Linda 8: Hewitt. Robbery of copulation Count 9: Oral Linda Hewitt. Count 10: Linda Hewitt. addition, special alleged purpose were of making three for the circumstances capital murder in a count 6 offense: by 1. premeditated, personally The murder was deliberate and was committed (i.e., 7). during rape defendant count Linda Hewitt apd by premeditated, personally 2. The murder was deliberate and committed (i.e., 10). during robbery count Hewitt Linda defendant, he had personally previously 3. The committed mur- murder was (i.e., 1). dered Patricia Franklin count be, for in- outcome, feel the would all penalty what it be. I death might better me. tents for can’t, death receive the penal-
“If the of California and I don’t State try for They’re going then I another shot Nevada. got have ty, out, I have If then will to do just that doesn’t work death too.!2! penalty, it myself.” attitude,
In view court a doubt as to defendant’s of this declared and ordered defendant sanity, suspended proceedings, (Pen. 1368.) Code, a further examination. undergo psychiatric The was found mentally compe- resumed after defendant proceedings any plea Mr. his firm reiterating objection tent. Pitkin began by He that to his of Penal according reading his client. guilty explained 1018, “a offense consent plea requires Code section a guilty And he that defendant was at- counsel.” although acknowledged “I such want the record to tempting to enter stated plea, reflect that it’s without consent.” my
The prosecutor with defense counsel’s understand- agreed apparently law, of the that the court ing and recommended behalf these plea “not from defendant under circum- accept set stances” but rather the case for trial. ruled, rather, declined It court to follow recommendation. if find to act his own competent could defendant sufficiently (1975) 422 U.S.
attorney under the standards of Faretta v. California de- it would accept S.Ct. The court the refusal of his counsel of record to consent spite thereto. to” relieving reasoned would be “tantamount simply finding such to actually represent Mr. Pitkin as counsel and permitting defendant, him compe- found questioned himself. The thereupon court Faretta, him to plead guilty tent within the and allowed meaning all enhance- charged all counts and to admit information time, however, At no ments and the circumstances special allegations. duties, throughout pro- was Mr. Pitkin in fact relieved of his record.3 as defendant’s counsel of ceedings he continued to act *7 in Nevada. charged with murder been had also appears 2It that defendant finding competent represent himself under even after defendant on the example, 3For Faretta, by asking hearing change defendant for the began the the court record, During the replied is Mr. in the affirmative. Pitkin?” Defendant “Your A was of the tri- subsequently empanelled phase for jury penalty al, (Pen. and fixed the at This punishment appeal death. automatic. Code, (b).) subd.
Defendant first that court had contends the trial no to ac- authority in his cept guilty plea capital to a offense the face of counsel’s refusal to express consent of such a is well entry plea. point taken. Penal Code section in relevant that no provides part guilty plea to felony punishable by imprisonment or life without possi- death “shall received from not bility parole a defendant who does appear counsel, nor shall such any plea be received without the consent of the defendant’s The record counsel.” demonstrates Mr. Pit- amply kin did not that consent. Under the terms section give therefore, the court allowing erred defendant to count 6 of the information. result,
In an effort to avoid General Attorney urges first that section 1018 can be “construed” to defendant permit himself, and enter a discharge attorney, represent plea. There are First, three answers to this in the contention. case at bar is entire so, ly hypothetical: he well knew his right to do although never made an unequivocal request to Mr. Pitkin and discharge repre himself, sent status; was never hence granted contrary, with defendant’s Mr. Pitkin agreement continued to act as his counsel (See 3, ante.) not, course, throughout proceedings. fn. We will claims adjudicate hypothetical or render purely advisory opinions. v. (Younger Court Superior 119-120 Cal. cited.) Rptr. and cases Second, it is difficult conceive of a of law statement than plainer the rule of section 1018 that no to a guilty plea capital offense shall be received “without the consent of the defendant’s It is counsel.” settled that “When thus clear there statutory language unambiguous construction, no need for and courts it.” should indulge (Solberg Court 19 Cal.3d Superior P.2d 1148].) hearing
remainder sel.” And when in competent “your the court several times referred Mr. Pitkin coun- finding conclusion the court its reiterated himself, represent following exchange occurred: making—there “MR. PITKIN: Is the request Court has been no represent that he himself. hasn’t, “THE I know finding.” COURT: but I make that *8 construction, Attorney the Third, if to subject even section 1018 were statute redun of the make a major portion would proposal General’s to a capital it be read to permit in effect that urges dant. He and voluntarily, if he guilty knowingly, and attorney plead discharge the third what But that is precisely waives his to counsel. openly right to defendants noncapital authorizes expressly sentence of section distinc the careful would thus obliterate Legislature’s do.4 The proposal cases, super and render noncapital largely and tion between capital would be the construction for former. Such special provision fluous its Labor Relations (J. v. Agricultural R. Norton Co. improper. manifestly and Bd. Cal.Rptr. 26 Cal.3d 36-37 [160 cited.) cases if alternative, General contends that section the Attorney it allows because be construed it is unconstitutional cannot so The ar decision to plead guilty.
counsel to “veto” a defendant’s capital however, General Attorney is both diffuse and obscure. gument, constitutionally state could capital to concede that cases a appears prosecution prove insist that prohibit guilty pleas altogether of But the state’s trier fact. charge each such to satisfaction General, does not asserts prohibit pleas, Attorney power guilty on the consent of de to condition such pleas include the lesser power so, claims, the “uniquely personal” do he disturbs fense counsel. To denies him his “fun nature decision to plead guilty, defendant’s prosecution, the ultimate course right” damental control as the of counsel relationship established destroys constitutionally than his master. defendant’s “assistant” rather interest at stake in public
The contention fails to recognize larger It is true that our system offenses. pleas charge personal the decision as to how justice his, life, at stake is so or liberty property to the because the defendant: (In re Williams 1 Cal.3d is the of plea. also choice that the it is less true But no 984].) fn. 8 460 P.2d interest, manner in the public has power regulate, Legislature felony for which provides: “No 4The third sentence of section 1018 imprisonment possibility without not punishment the maximum death or life unless appear who not with counsel parole accepted any from does shall shall and unless the court fully him of his to counsel the court shall first inform then, freely waives it and find the defendant understands court, court, does open to the expressly if stated in the defendant has (Italics added.) be_ represented by wish to counsel.” *9 748
in which that choice is the exercised. Thus it is legislative prerogative to specify (Pen. which the elect pleas Code, to enter may 1016),5 (id., 1003), when he do so where and may how he must § § (id., 1017), what plead the effects are of or not making making pleas.6 certain course,
A of of plea is the serious guilty, most a defendant step take can in a criminal It first as prosecution. operates a waiver of for mal defects in accusatory the that could be pleading reached by (1931) 82, demurrer. Beesly v. 119 87 (People Cal.App. 114]; P.2d [6 (1910) 399, In re Cook Cal.App. Next, 13 403 P. 352].) because [110 will there plea no trial the the of such strips fundamental self-incrimination, as protections the privilege against the to a right (1969) the of v. jury, confrontation. Alabama 395 (Boykin U.S. 243 (1969) 89 S.Ct. In re 1709]; Tahl [23 1 Cal.3d 130-133 460 P.2d to the Cal.Rptr. 449].) As [81 merits, is plea deemed to constitute a admission of judicial every element of the offense charged. DeVaughn v. 18 Cal.3d (People Indeed, it serves 872].) stip [135 ulation that the need introduce no whatever to proof support (Peo accusation: the plea facto evidence and ipso supplies both verdict. v. Jones ple 52 Cal.2d P.2d 577].) “A of plea guilty more than a which confession admits the accused did var acts; conviction; ious it is itself a remains but to nothing give judgment Alabama, and determine v. punishment.” (Boykin at 242 of supra, p. U.S. p. 279].) L.Ed.2d at restricts the de Finally, severely fendant’s from appeal ensuing judgment. (People Cal.3d.) DeVaughn, at 895-896 of 18 supra, pp. view consequences, of these has demonstrated an Legislature concern to insure no defendant enter a
increasing our guilty plea original cognizable: guilty, were pleas 5In Penal Code three not guilty, Legislature acquittal. plea and former or added conviction In 1880 the jeopardy. plea insanity incorporated once In 1927 the not reason again provide plea into statute. In 1963 the statute was amended to for the of nolo Legislature permitted pleas contendere. And conditional specifying since 1955 the has degree punishment (§ imposed. seq.) the offense or the to be 1192.1 et guilty by not of in pleads 6Thus section that a defendant who reason 1016 declares sanity to admit presumed without not the commission pleading also offense, guilty by pre reason insanity and a does not defendant who time the committed. sumed have been sane at the offense was of his nature and consequences fully understanding without courts has with, required the law of California its inception To since begin act. and in open defendant both personally be entered that each *10 245; Code, 1851, 301, 1018.) 29, Pen. (Stats. p. ch. court. § § it to necessary impose spe- deemed years ago Legislature Over a distinction guilty pleas, drawing ill-advised precautions against cial it amended Thus potential punishment. to the severity according (1) to no a guilty plea felony punishable by 1018 to that provide section be re- without shall possibility parole life imprisonment death or counsel,” (2) with does not appear defendant “who any ceived from a defen- accepted shall be such to other plea any felony no from guilty openly has waived voluntarily, intelligently, dant unless he 2298; 4, ante). (Stats. 1949, 1310, 1, (see ch. Stats. p. fn. to counsel § 1951, 2369.) 1, ch. p. § law, in the case the Legis- two impelled developments
Apparently by of that we decided to in 1973. In problem April year lature returned We Cal.3d 321 People Vaughn, 318]. plead defendant who wishes to that “In a recognized requiring there counsel, section 1018 represented by a offense to be guilty capital that such a serious assuring defendants protect by obviously designed one, taken after consider- informed competent a step fully (Id. 327.) On the at facts p. ation with and advice counsel.” nevertheless, it not bar case, that 1018 as then read did we held section even charge though to a pleading guilty capital the defendant from We such a rea- plea. had advised him against making expressly a capital the statute insured although soned in effect (i.e., counsel”) “appear advice of an attorney defendant have the advice. also him to follow that require before did not guilty, pleading later, however, statutory closed Legislature Several months require 1018 the further section Vaughn adding revealed in gap capital charge to a accept that a court cannot ment (Stats. 1973, ch. counsel.” defendant’s “without consent Vaughn rule 1301.) effect of the amendment p. has who ad attorney that an it uncommon we assume plain: may safely will to allow consent pleading guilty vised capital against judg professional counsel’s to that advice and him to act contrary interests, It follows since best ment as to his client’s 1973 amendment is no longer permitted this state against advice his attorney.7
Nor was this amendment as an adopted isolated statute in the 1973 Rather, session. it was an integral part re- Legislature’s extensive vision of the death laws in response the decision of the penalty United States Supreme Court Furman v. Georgia 408 U.S. (Stats. 1973, 2-6, 92 S.Ct. ch. 726]. §§ 1297-1300.) revision, course, pp. That was an effort eliminate the arbitrariness that Furman found inherent in the operation prior (See death penalty Rockwell v. legislation. Superior Court *11 Cal.3d 420 P.2d Cal.Rptr. 1101].) The fact the that re- [134 of quirement counsel’s consent to in cases was guilty pleas capital enacted as of part that statutory scheme demonstrates that the Legisla- ture intended it to serve as a further independent safeguard against erroneous of imposition a death sentence.
Two years Faretta, later the Supreme United States Court decided holding that defendants in state criminal trials have a federal constitu tional of right self-representation. But decision did not our strip Legislature the to condition authority pleas in capital cases the consent of defense counsel. Just as the source of the self- right of representation is not the fact that the simply defendant can waive coun (422 819-820, sel U.S. at pp. fn. 15 L.Ed.2d at pp. 572-573]), so [45 also the scope right the self-representation not the mirror-image the to counsel. right Faretta does not to purport a defen guarantee dant in propria persona the to acting right do and all any things could have attorney done: on court contrary, high recognized defense, an “When accused manages his own as relinquishes, matter, purely factual of the traditional benefits many associated (Id. the right p. to at at counsel.” L.Ed.2d p. 581].) [45 contrary 7A to dictum in v. Teron 23 Cal.3d 115 [151 773], citing Vaughn proposition capital for the that a defen counsel,” right plead guilty, against dant “has the to even advice did not take legislative Vaughn into development disapproved. account affer and is therefore Teron—i.e., holding The representing related that a himself un- der to duty “present may simply “put Faretta has no a defense” but to its state proof’—remains presumably valid. Such defendant can also take the stand and con- First, guilt. possibilities explained fess But neither of these at resolves the issue hand. as above, consequences judicial a guilty has more immediate and drastic than even a confession; second, Legislature subject importantly, spoken and most has on the guilty pleas. The court found self- thus more modest. The Faretta is reach of the structure and implied by be an independent right representation first the sev The categorizes opinion of the Sixth Amendment. history as amendment guaranteed by and trial pretrial rights eral (id. at p. 572]), at L.Ed.2d p. full defense” to a “necessary [45 in an adver right “constitutionalizes observes that the amendment (Ibid.; italics we know it.” to make a trial sary defense (at at 572]) L.Ed.2d added.) p. The then reiterates p. opinion make right “the personally that the amendment accused grants defense,” stated in the Amendment “Although and concludes: words, make one’s own de self-representation—to many right so the structure of the necessarily thus implied personally—is fense accused; to the for given directly The to defend right Amendment. added; (Italics is he who suffers the consequences if fails.” defense (Id. at omitted.) 572-573].) at 819-820 pp. pp. fn. its head: from the effect stands Faretta on General in Attorney crimi “make defense” “an adversary defendant’s conceded trial,” infer a defendant’s attempts nal General Attorney *12 trial, when his life is at have no such even make no such defense and to cases, above, a inter But noted the state has capital strong stake. in in Nothing est in the risk of mistaken reducing judgments. Faretta, the the state of impliedly, right either or expressly deprives a death sentence conclude that the danger erroneously imposing re self-representation minor outweighs right the infringement in cases guilty capital when defendant’s sulting right plead consent. It is significant counsel’s subjected requirement either federal cite any authority, that the General is unable to Attorney state, contrary.8 or that holds to the in interest at here been related con public promoted issue has Faretta, that a in its recognized court state high
texts. Before to murder prohibit pleas wisdom all constitutionally could (North each such case. prosecution prove and insist charges 25, 162, 38-39 L.Ed.2d 171- (1970) v. 400 U.S. Carolina [27 Alford right circumscribed the noncapital properly in cases state has 8Even folly ne against consequences their own or protect in order to defendants intelligent voluntary guilty plea by made a glect. undoubtedly Thus even an itself until the court has satisfied represented by accepted counsel cannot Code, (Pen. plea.” hearing is a factual basis for such by evidentiary an that “there 1192.5, 3d par.) 752
172, 91 S.Ct. Faretta 160].) There indication in slightest it is Secondly, before Faretta this court intended that rule. abrogate held that squarely a defendant has no right waive his auto matic “It appeal: is manifest the state in its solicitude a for sentence of death has not under invoked on his a only behalf right review the conviction means of an automatic but has appeal imposed also a this upon court to make such We duty review. cannot avoid or abdicate merely because duty defendant desires to waive provided for In other contexts it has right him. been held that de fendant’s waiver or attempted waiver of is ineffective where would involve also the renunciation of a upon correlative duty imposed (People Stanworth (1969) court.” v. 71 Cal. [80 accord, Teron Rptr. (1979) 457 P.2d v. 889]; supra, Cal. 103, 115, 3d 7.) fn. Indeed, Faretta
Again, nothing that rule. one abrogates year after Faretta court described high automatic review of a judgment of death the state “an supreme important court as additional safe guard against (Gregg Georgia caprice” arbitrariness and Peo accord, U.S. 96 S.Ct. 2971]; v. Frierson ple 25 Cal.3d 599 P.2d In these circumstances Faretta does not 587]). grant capital defen dant to “defend” himself his counsel by discharging (at his automatic Stanworth As we waiving appeal. explained p. Cal.2d), of 71 state, too, “It is not ‘his since entirely appeal,’ has an in it indisputable interest which the appellant cannot extinguish.” The Ninth Circuit Court of held. Massie has so Appeals recently *13 — (9th Sumner 1980) (Jan. 12, cir. F.2d cert. den. 1981) — U.S. 101 S.Ct. a defendant under a Califor- [66 nia sentence death had who his attempted unsuccessfully to waive automatic in this court appeal sought federal habeas on the corpus alia, inter that such a ground, compulsory violates his proceeding right of self-representation Faretta. relief, under a denial of Affirming circuit court reasoned: “While in Massie is correct he a con- enjoys this is limited stitutional right right self-representation, and a court may counsel over appoint an accused’s objection order to protect public interest in the fairness and of the proceedings. integrity [Cita- (Italics added; id. at p. 74.) The court stressed that “a state may tion.]” require reasonable in order to own proceedings protect its interests in the fairness of its determinations. the same sense that a state may evaluations, constitutionally require competency a factual basis a for re- may also routinely accepted proceedings, other and plea, guilty (Ibid.) conviction.” and a sentence court review of death a quire higher court, state of California rule, that “The is The this said reason for pro- all its and fairness accuracy has a interest strong this where a a such as in case pronounced is most this interest ceedings; assis- without the to death was sentenced and pleaded defendant guilty (Ibid.) tance of counsel.” bar, when, in the case at as less pronounced
The state’s interest no the ve- offense over capital ato a permitted guilty of counsel’s requirement his And the objections attorney. hement held proceedings” the “reasonable a one of plea surely consent such that inter- the Massie court for purpose protecting permissible by a alia as filter it serves inter est. As defense counsel suggests, gain might reasonably in which the defendant separate cases capital defendant, in which the capital a from cases by plea some benefit here, him commit suicide.9 help as wants the state to simply court, now before us is new to but was
Finally, question v. Ballentine (1952) 39 answered in effect our decision in a charged capital There 35]. murder at con- with counsel and obtained a appeared arraignment, tinuance. voluntarily At next the defendant hearing knowingly then discharged his entered a On automat- attorney guilty plea. death, ic an appeal ensuing from the defendant contended judgment authority that section 1018 the trial court of to receive his deprived he crime while counsel. unrepresented relied, here, The as does on the General defendant’s Attorney decided, Faretta had of course not been self-representation. Although broad as that self-representation recog- then deemed to 174], a de (1978) 476 A.2d 9SimiIarly, v. McKenna Pa. in Commonwealth he was challenge constitutionality of the law under which fendant refused to death, Supreme Pennsylvania Court permit or his counsel to do so. sentenced to Furman, de reasoning (at p. 181) “while a nevertheless the law invalid under held rights personal voluntary waiver of may normally fendant himself, make an informed *14 is in policy give way public where a substantial his freedom to do so must volved; prefers death personally McKenna It record that Gerard ... is evident from the may genuine this be a conviction prison. life in While spending to on his defendant to choose his own sentence. the remainder of his allowing a of a criminal concept was never intended as means part, the waiver here, where, do this so to so Especially is position a so be exalted to The waiver rule cannot result state suicide. would lofty aided allowing propriety of to the real issue—the court to blind itself require as to added; omitted.) (Italics fn. illegal a citizen.” to execution of the state conduct an nized in Faretta was in our guaranteed courts the former by provisions I, of article section of the California Constitution. The Attorney General argued that section 1018 should not permitted be to impair that constitutional right.
We the rejected Attorney General’s that argument, reasoning section not does a prevent defendant from waiving counsel and defending himself; “It merely prohibits the court from a of receiving plea to a for which the felony maximum punishment death made aby defen (39 dant not represented counsel.” by pp. 195-196.) at We explained that a defendant has although a constitutional to defend right himself person, “he is not the to guaranteed to a right a charge of punishable with death.... felony The has de Legislature prived the court of the power accept to from a guilty plea defendant with a charged with felony punishable death when he is not represented (Id. 196.) by at p. counsel.” Declaring that section 1018 was “designed protect to of a defendant adequately rights with a charged capital offense,” we York, stressed other (e.g., that states New New Jersey) had enacted statutes prohibited that totally capital from (Ibid.) pleading guilty under circumstances. We that any concluded “Not an absolute having enter a plea guilty, the defendant not deprived any permitted to enter the right by being if he plea only (Id. is represented 196-197.) at pp. counsel.” We therefore reversed the death with directions judgment trial court “strike from its records Ballentine’s plea guilty (Id. 197.) unanimous, at charge p. murder.” decision was and its has never been Nor holding can questioned. fairly distinguished its facts: although case decided before the 1973 amendment section 1018 requirement adding counsel consent a guilty defendant, plea aby requirement is couched in exactly same as the such de mandatory language original requirement Indeed, fendant “appear counsel.” because the consent latter, requirement is even of Ballantine plainer than holding too, here, a fortiori in the at applies case bar: “Not an absolute having enter a deprived guilty, any right permitted to enter the if being plea only [his consents].” We conclude that trial court erred in defendant’s accepting guilty plea to the er charged capital offense without such consent. The ror requires that be reversed insofar as it judgment convicts *15 count 6 and finds true special murder on first degree defendant of count, it and insofar as imposes in of that alleged support circumstances we need not reach Accordingly, death on same count. penalty his to the voluntariness of contentions relating additional defendant’s circumstances special leading the procedure on count phase. the penalty and findings, defendant directs all ten counts one contention that
There remains information, wit, his each count invalid guilty plea him did not advise assertedly privilege the trial court because a waiver thereof before accepting self-incrimination and obtain against v. Alabama 395 U.S. required by Boykin supra, such as plea, In re Tahl supra, and We need not further The is refuted the record. 131-133. claim verbatim numerous detailed opinion by quoting lengthen rights of the constitutional defen- recitals the court and defendant’s waivers up guilty, express dant would give by pleading care, have the relevant proceedings of those We examined rights. his privilege that defendant was in fact advised of against conclude before privilege guilty plea self-incrimination and waived that each count was accepted. as follow, however, should be affirmed
It does that the judgment not In Ballantine 6. the defendant pleaded counts other than count all count of and the robbery, to murder but also one only in it was committed be of the first because degree murder was found to this court murder convic- of that After perpetration robbery. hele] conviction. we addressed the robbery tion invalid under section affirmed, were it would conclu- We that if that conviction reasoned would need prosecution murder count and the sive on retrial in new its order to obtain a prove killing perpetration fact circumstances, we concluded first murder. In such conviction of degree (39 count. reversed to the robbery should also be conviction 197.) Cal.2d at p. (fn. 1, As noted above similar facts. presents at bar case count 6 turns princi
ante), alleged circumstances special proof charged the felonies each of defendant committed on proof pally counts If those and 10. his conviction him in counts against would elimi count 6 and affirmed, retrial of would be conclusive on circumstances prove special burden to most the prosecution’s nate *16 Ballantine, therefore, in imposed As by Legislature. the judgment 1, 7, should also reversed as to counts and 10. defendant contends that the
Finally, statute limitations re- compels 2, 3, 4, (see versal of 1, ante). his conviction on counts and 5 fn. The record its demonstrates on face that the contention is meritorious. The information that each alleges 4, felonies in charged counts 26, 1974; and was on committed or about July but the information it- i.e., self was not filed until four and January years one-half later. Code requires Penal section 800 that an information charging such felonies be filed within three their years after commission.
The General Attorney responds should be deemed to have waived defect because failed to raise it either by demurrer in byor motion arrest of The judgment. argument premised on Penal Code section which provides in effect that when a of demurrer ground “mentioned in Section 1004” on the face of appears accusatory will be deemed pleading waived unless the defendant or, raises it demurrer if by ground is failure to state a of public fense, demurrer or motion in arrest of Section 1012 is not judgment. in this It controlling context. is true the have courts described as “fail ing public state offense” an shows its accusatory pleading Nevertheless, face a violation of section 800. the bar of the statute of limitations is not in fact in “mentioned Section 1004.”10Thus while sec here, tions 1004 and insofar as relevant have remained essentially unchanged since have them courts not consulted in resolving the question now us. before indeed,
That question, settled until when this court de- McGee, cided court there 378]. (at 613) observed p. that “Whether the statute of limitations cases is or a jurisdictional, matter defense to be affirmatively pleaded defendant, there question upon which exists some diversity eliminated, opinion.... It is that this confusion be necessary [II] that the which rule shall this state be govern prosecutions declared.” The court then held that “the desirable rule squarely more is that the statute is the conclusion “The jurisdictional,” point drew may grounds jurisdiction grand 10The listed lack of demurrer in that statute are in the form, court, jury charged, or than one defects of more offense failure to state a offense, legal public justification excuse. or time, (Italics therefore be raised at before or add- any judgment.” after *17 ed; ibid.) The court that a different rule civil governed recognized actions, which explained: “In civil actions the statute is a privilege state, cases, be waived In its may by party. through will legislature, has declared that it crimes after the prosecute peri- run, od has and hence limited the has the courts to power proceed (Italics added; ibid.) the matter.” clear: “It corollary equally follows that where the of the state shows that the pleading period run, statute of limitations has nothing alleged take the case statute, out of the for example, the defendant has been absent state, from the the power to in the case is proceed at gone.” {Id. 613-614.) pp. unanimous,
The decision was and has been followed this court by (See, without question for almost half a v. century. e.g., People Crosby (1962) 713, 847, 58 Cal.2d 722 Cal.Rptr. 375 P.2d v. 839]; People [25 (1964) 135, Rediman 62 139 Cal.2d P.2d In re 913]; Demillo [396 (1975) 598, 14 725, Cal.3d 601-602 535 Cal.Rptr. P.2d 1181].) [121 recent discussion of the matter we reiterated that criminal cases “in California the statute of limitations constitutes a substantive rather than a procedural right which not waived failure to assert it at the pleading conviction, is now well stage.... settled that a if even [I]t based on a guilty, subject collateral attack if the [or direct] charge was barred originally applicable limitation period,” citing Demillo and (1976) 538, McGee. v. Zamora 18 (People Cal.3d 547 784, Cal.Rptr. 557 P.2d The rule is a 75].) reflection of the funda [134 mental principle our law that “the of the power courts to proceed”— i.e., their jurisdiction over the subject matter—cannot be conferred by estoppel consent, mere act of a waiver, whether it amount to litigant, or (Su (1959) 295, v. Court 53 Cal.2d 298 Superior Cal. [1 mmers 324, Rptr. 347 (1948) P.2d v. 668]; Sampsell Court 32 Cal. Superior 2d cited), P.2d and cases and hence that the lack of [197 (Consoli such jurisdiction be raised for the first time on may appeal. Theatres, dated v. Inc. Theatrical Union Stage Employees 325]; Petty Manpower, [73 Inc. 94 Cal.App.3d 798-799 Cal.Rptr. 622].) It is undisputed that in the information filed herein is al- “nothing to take the leged case out of the statute.” Under the rule of McGee and its as counts progeny, must be reversed accordingly, judgment 3, 4, and 5. however, further contention merit, in defendant’s
There is no facts tolling be amended to allege cannot that on remand these counts Code, 802). reversal of (see judgment Our statute Pen. course, for new trial and counts, places the cause “remands these if cause had never position in the same in the trial court parties 818, Cal. (1963) 59 Cal.2d v. Murphy been tried.” (People pleading an plea, accusatory After 346].) entry 382 P.2d Rptr. or at insufficiency, defect any with leave of court “for be amended may therefore, on remand after proceedings”—including, any stage the offense “change does not the amendment reversal—provided *18 of the defendant. rights the substantial or otherwise prejudice charged” the stat (Pen. Code, 1009.) tolling An adding allegations amendment v. (People the offense charged” does not “change ute of limitations claim 713, 723); and there is neither (1962) 58 Crosby supra, the substantial would prejudice that such an amendment nor showing at all defendant, aware of these charges who has been of this rights in plead the factual basis of each testified at length times and indeed will be remand the prosecution It follows that on thereto. ing guilty appropriate the information by adding leave to amend entitled to seek (1972) 28 Cal.App.3d v. Rose the statute. (People allegations tolling (1977) Morgan accord, 415, 702]; Cal.Rptr. [104 32, 863].) Cal.App.3d
Conclusion with directions to 6, 7, is reversed 1, 10 the judgment On counts and and pleas its defendant’s to strike from records the trial court circumstances and special enhancements charged his admissions allegations. 2, 3, 4, is reversed. and 5 the judgment
On counts is affirmed. respects judgment all other J., Newman, Tobriner, J., concurred.
Bird, J., in the judgment. C. concurred insofar as Justice opinion Mosk’s BIRD, J., I join C. Concurring. appellant’s guilty (1) accepting the propriety it resolves the issues of waiv- appellant’s adequacy 7 and to counts pleas er I also concur in the against self-incrimination. privilege of the court. judgment J.,
RICHARDSON,
I concurin the
Concurring
Dissenting.
judg-
2, 3,
ment
the extent that it reverses defendant’s conviction
of counts
4 and
because these counts were barred
the statute
of limitations.
dissent, however,
I
respectfully
from the reversal
counts
7 and
disagreement
10.
with the
while
fundamen-
My
majority,
simple,
very
view,
tal. In
to enter
in a
my
particular plea
proceeding
alone. It cannot be
to the
subjected
veto of defense counsel. It
1018 of
Penal
follows
section
Code
unconstitutional,
because it unduly
self-represen-
restricts the
tation guaranteed by the Sixth Amendment of the United States Con-
(See
stitution.
Faretta v.
U.S.
California
562,
In the United States Court Supreme held that the California courts improperly deprived the defendant of his constitutional right to conduct his own him, will, defense when forced they against his to ac- a cept state-appointed public stated, As the defender. court high “The to defend right personal. defendant, is The and not his or the lawyer State, will bear personal of a consequences conviction. It the de- fendant, therefore, who must be free decide personally to whether in his particular case counsel is to his advantage. And con- although may duct own detriment, defense to his own ultimately his choice must be honored out ‘that for respect the individual which is the lifeblood (422 of the law.’ U.S. at 834 p. L.Ed.2d at p. 581], fn. [Citation.]” [45 omitted.)
“The right to defend is personal.” These words hold the to the is- key sue before us. The majority attempts to Faretta on the basis distinguish that its rule and extends to defendants reasoning who choose to re- present trial, themselves course an adversary rather {Ante, than 751.) to p. before trial. Such a distinction is much too to narrow. defend” “right necessarily encompasses the initial, and decision whether mount uniquely personal, to a defense at the guilt phase. Faretta with evident quoted ex- approval following 173, (1946) 329 U.S. 174-175 L.Ed.
cerpt from Carter Illinois [91 172, 174, where similar was made: “Neither 67 S.Ct. point pro nor it derives from vitality historic of Due Process conception to defend himself person right standards of denies gressive justice the Constitution circumstances appropriate or to Under guilt. confess tendered; that under all cir require it does not requires (Italics added.) counsel be forced defendant.” upon cumstances Indeed, de self-represented that the acknowledges herein majority a defense’ but may has no duty ‘present fendant “under Faretta defendant can presumably state its Such a simply ‘put proof.... 750, (Ante, 7, fn. italics p. take stand guilt.” also and confess added.) constitutionally
If the the stand and confess guilt” to “take interference, then the compara surely Faretta from state protected by so likewise plead guilty at the appear arraignment ble funda personal, defendant makes the for in both cases the protected, decision, make, acknowledge guilt is his mental which alone that critical reason which impelled Whatever a criminal offense. defendant, choice, assures that belongs the Constitution consistently supported have no one Prior California authorities else. 321, (1973) (See 9 Cal.3d v. Vaughn proposition. [107 Williams 1 Cal.3d In re 318]; 508 P.2d Cal.Rptr. re 64 Cal.2d 984]; Beaty In P.2d Cal.Rptr. fn. (1965) 62 Rose re 817]; Cal.Rptr. recent Our most 428].) 398 P.2d 390 [42 *20 (1979) 23 115 v. in Teron expression [151 wherein, Justice through speaking however, de “Defendant, no to Tobriner, said, present bears duty we the advice against even guilty, He the to fense. has (Italics added.) counsel.” with Califor- prior consistent
This is not principle fundamental with nationwide law, careful reasoning sound and supported by nia Association, adopted which has Thus, Bar the American acceptance. one includes justice, of criminal for the administration certain standards Relating of the Standards here. 5.2 which is Standard applicable fully Case,” Direction of the Function, “Control and the entitled to Defense the “(a) decisions relating Certain in pertinent part provides are ulti- accused and others for the ultimately of the case are conduct which are to be made decisions for defense counsel. The mately enter, (i) counsel are: what after full consultation accused trial; (ii) (iii) whether to waive jury testify whether to in his own be- (Italics added.) half.” The 5.2 commentary standard explains “The in our and the history process vested system rights in an accused under the Constitution mark out certain basic decisions client; requirement ... The that the belonging defendant per- enter a and that it be sonally guilty plea voluntary and informed carries that it is implication who make must the choice.... counsel should not demand that view Although his own of the desirable followed, course be he is free to engage persuasion fair and urge however, professional considered on his opinion client. Ultimately, decisions, because nature these three crucial fundamental such basic matters own fate, the decisions governing on these mat- ters 238-239, to the belong (Pp. added.) accused.” italics
It should noted that the standard and its foregoing accompanying both commentary recognize personal, nature of de- fundamental cision to plead its close equivalence and to the decision to testify at trial. Contrary to the both majority’s analysis, rights are constitu- protected by self-representation principles. tionally The personal nature whether uniquely decision or not to plead readily demonstrated some and reviewing legitimate reasons which compelling motivate such might plea. (1)
might enter a relieve his guilty plea conscience confes- through atonement, (2) sion and some tactical gain advantage, a less including (3) severe avoid the penalty, and of an “agony expense” unnecessary trial, and (see where prolonged the evidence of guilt overwhelming (1970) v. States Brady United U.S. L.Ed.2d S.Ct. or 1463]), friends and spare spectacle relatives em- barrassment, (see of a trial perhaps publicity, public United States Jackson 390 U.S. 88 S.Ct. so, If 1209]). he chooses to do the defen- intelligently voluntarily, dant should have the ends accomplish these by pleading guilty. *21 however, Under the can majority’s holding, de- state-appointed feat these to to the purposes impunity by simply declining consent plea. To makes to me it no sense that a criminal defendant has a say constitutional to take stand his trial and admit right freely the during his if defendant the embar- guilt spare but wishes himself ordeal and rassment prevent of trial before his by pleading guilty lawyer trial can so, his he a doing though compelled accept and even cannot be hold, short, in his lawyer. The that defendant assert con- majority may on that his but the condition guilt, stitutional acknowledge il- This is exceedingly strange, he submit to the ordeal of a trial. result inconsistent, because motives in and so counsel’s logical, particularly (See be v. Corona his consent varied. refusing may to give Cal.Rptr. 894].) 702-704 Cal.App.3d As stated Justice in v. U.S. ex rel. McCann Frankfurter Adams by 273-274, 276-277 S.Ct. U.S. “It the framers A.L.R. occurred to of hardly original accused, Constitution and of the Bill of that an in obedi- Rights acting conscience, ence to the dictates of or the promptings self-interest should his prevented admitting from his surrendering liberty by who his compel guilt The Constitution does not an accused admits guilt. stand his trial own wishes.... And not even now is it against suggest- ed that he has a layman cannot unless opinion of on arise not admit his lawyer might law did questions if of such a the Constitu- guilt. engrafting requirement upon Plainly, tion would be a dislocation of the gratuitous processes justice.” (Italics added.) compelling
In assert no interest my sufficiently state can opinion choice in freedom of constitutionally protected to override defendant’s know- as and plea, plea voluntarily the matter of his own so long (see Code, 1192.5). made, Pen. has a factual basis sufficient ingly court- burdens our crowded given overwhelming To contrary, rooms, trial to the and retrial part substantial attributable cases, refusing interest is not served public numerous defen- if made. The characterizes majority such accept pleas properly This rhetoric motivated a desire “commit suicide.” dant’s his to enter competency the record which demonstrates disregards several thor- established in voluntary knowing plea firmly hearings. examinations and competency ough psychiatric Faretta, conclusion, where I court’s high language return to the principle self-representation the whole the rationale underlying con- the Sixth Amendment spirit “The aptly expressed: language counsel, guaranteed by tools like the other defense template that an Amendment, organ defendant—not shall be an aid to willing defendant and an unwilling the State between interposed accused, against thrust counsel upon defend To himself personally. In such a Amendment wish, logic thus violates considered *22 case, assistant, master; an is not but a and the to make a defense is stripped personal character which the Amend- upon (P. ment insists.” omitted.) fn. p.
I would affirm the judgment of conviction as to 7 and counts 10. Clark, J., concurred.
The petitions of both parties for a were rehearing denied March Clark, J., Richardson, 1981. J., were of the opinion that the respon- dent’s petition should be granted.