18 Cal. App. 3d 959 | Cal. Ct. App. | 1971
Opinion
Defendant was charged with grand theft from the person. (Pen. Code, § 487, subd.2.) He pleaded not guilty. On July 1, 1970, defend
On this appeal from the judgment defendant contends that the court abused its discretion in refusing to permit defendant to withdraw the submission on the preliminary transcript;
With respect to the contention that the court erred in failing to advise defendant that the submission was tantamount to a guilty plea, defendant comes to this court in a most unsympathetic posture. At the time the submission was originally entered it did not constitute a slow plea of guilty. It covered only the People’s case in chief. Not only did defendant announce the intention of presenting evidence in his own behalf, he obtained several continuances to facilitate his doing so. It was only at the last minute, when defendant chose to rest without presenting any evidence,
It is entirely clear that defendant understood, when he sought to withdraw the submission, that unless he presented additional evidence the submission would be tantamount to a plea of guilty. Under the circumstances, his decision not to present evidence constituted the necessary waiver of his privilege against self-incrimination. (Cf. In re Mosley, supra, 1 Cal.3d 913, 925-926.)
The judgment is affirmed.
Defendant now contends that he should have been permitted also to withdraw the jury waiver. The motion below, however, was directed only to the submission on the transcript.
“[Rrosecutor] : Mr. Johnson, the law entitles you to have a jury trial by 12 people sitting in the jury box and listening to the evidence. If you want, however, you can give up your right to a jury trial which means that the Judge sitting alone would listen to the evidence and decide whether you are guilty or innocent. Do you understand that?
“The Defendant: Yes.
“[Prosecutor]: And do you want to have a jury trial or a court trial?
“The Defendant: Court trial.
“[Prosecutor] : And you waive your right to a jury trial?
“The Defendant: Yes, sir.
“[Prosecutor] : Counsel join?
“[Defense Counsel] : Join.
“[Prosecutor] : The People join.
“The Court: Defendant’s personal waiver of his right to jury trial joined in by counsel is accepted.
“[Prosecutor] : Now, Mr. Johnson, at the preliminary hearing the victim, Mr. Waukeen [sic] Bustamante, testified and Officer John P. Motto testified and their testimony was recorded by the court reporter and written up in the preliminary hearing transcript.
“It has been discussed that the People’s case in chief will be submitted to the Court on the preliminary hearing transcript with an additional stipulation that Officer Hagele, H-a-g-e-l-e, who is also an arresting officer, would be deemed to have testified the same way that Officer Motto did at the preliminary hearing.
“Now, this means that the Judge will read the transcript and consider the testimony in that transcript with the same force and effect as if these witnesses were called again and had taken the stand and testified in the same way they did at the preliminary hearing.
“Now, at the preliminary hearing your attorney had an opportunity to cross examine these witnesses. However, by submitting it on the transcript there wouldn’t be any additional cross examination. This means that in effect you would be giving up any right to further cross examine the witnesses, further confront them.
“Now, do you understand this procedure?
“The Defendant: Yes, I do.
“[Prosecutor]: And is this agreeable with you to handle the case this way?
“The Defendant: Yes, I do.
“[Prosecutor] : And further the stipulation as to Officer Hagele would be based upon the same testimony that Officer Motto gave. He saw the same thing and would so testify. And this is agreeable with you?
“The Defendant: Yes.”
The victim testified that he was walking along Western Avenue when he felt something bump into him. He looked around and saw defendant. Moments later a police officer approached the victim and handed him his wallet. The arresting officers testified that they were parked in an unmarked police vehicle in a closed service station. They observed defendant step out of a doorway across the street from their location approach the victim, remove the victim’s wallet from his left rear pants pocket, and place it in his own right front pocket. They immediately drove across the street, arrested defendant, removed the wallet from defendant’s pocket and showed it to the victim.
We cannot agree with the Attorney General that submission solely on the transcript did not amount to a slow plea of guilty.