Opinion
Hearing Granted and Retransferred to Court of Appeal April 26, 1972.
Opinion on pages 962 to 972 omitted
HEARING GRANTED
Cause transferred to the Supreme Court and retransferred to the Court of Appeal, Second District, Division One, with directions.
For Opinion on Hearing, see 105 Cal.Rptr. 516, 504 P.2d 452.
[100 Cal.Rptr. 625]Peter L. Knecht, Los Angeles, for defendant and appellant.
Evelle J. Younger, Atty. Gen., Robert R. Granucci and Eugene Kaster, Deputy Attys. Gen., for plaintiff and respondent.
LILLIE, Associate Justice.
The trial court found defendant guilty of sale of a restricted dangerous drug; he appeals from the judgment.
On November 20, 1968, State Narcotics Agent Feldman and Siegal, an informant, met defendant in a private residence; Feldman asked defendant how much acid he had and the price, and defendant replied he had about 40 'tabs' at $3.25 each; asked if he could do any better, defendant said not in that quantity but if he bought 100 or more the price might be $2.50 or $2.75 each; Feldman said he would buy the 40 tablets at $3.25 each. Defendant told Feldman he did not want to conclude the transaction there and directed him to a donut shop; ten minutes later he and one Lester joined Feldman and Siegal at the shop; he told Feldman he had 31 tablets for each of which he (Feldman) had agreed to pay $3.25; asked their quality, defendant answered 'real good.' Defendant then said he would not sell the tablets directly to Feldman, only through Siegal; Feldman objected because he wanted someone 'to come back on if there was a burn,' but defendant said he would not chance an arrest for a mere $100.75; Feldman asked if he was really going to charge the 75 cents, but defendant said a flat $100 would be okay. Defendant and Feldman could not agree to any arrangement for delivery until Siegal suggested a 'drop'; Feldman asked what kind of tablets he was getting and defendant answered 29 fiats (flat shaped tablets) and 2 barrels (barrel shaped). Defendant left the shop and a few minutes later returned and told Siegal the 'drop' location; Feldman and Siegal went there and found 29 flat and 2 barrel shaped LSD tablets wrapped in foil for which Feldman left $100.
The cause was submitted on the transcript of the testimony taken at the preliminary hearing. Appellant contends that at that time he understood the submission to be equivalent to a plea of guilty which must be accompanied by constitutional and statutory safeguards which such a plea entails (Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274; In re Mosley, 1 Cal.3d 913, 926, 83 Cal.Prtr. 809, 464 P.2d 473) but that there was no express waiver of his rights of confrontation and against self-incrimination. We agree that the record supports such 'understanding' and that indeed the submission was tantamount to a plea of guilty but conclude that the record on its face reflects the necessary waiver of his rights.
While not all submissions are tantamount to a plea of guilty and the circumstances may show that a given submission would not have the same practical effect as a guilty plea, the evidence here offered defendant no hope of acquittal, and he knew it--the agent's testimony established all elements of a sale transaction and the positive identification of defendant as the seller. It eliminated any doubt as to defendant's guilt (People v. Gallegos, 4 Cal. No litany of rights was given to defendant in open court, but even in In re Tahl, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, it appears that there well may be some situation in which less than an enumeration of his rights and elicitation of defendant's responses would be proper as long as the record contains on its face direct evidence that he was made aware of those rights as well as the nature of the charge and the consequences of his plea (p. 133, 81 Cal.Rptr. 577, 460 P.2d 449). One such situation is the 'plea bargasin' (People v. Catalano, 19 Cal.App.3d 83, 92, 96 Cal.Rptr. 349), 'an accepted practice in American criminal procedurt (People v. West, 3 Cal.3d 595, 604, 91 Cal.Rptr. 385, 477 P.2d 409).' (People v. Flores, 6 Cal.3d 305, 308, 98 Cal.Rptr. 822, 824, 491 P.2d 406, 408.) While here there is not the straight plea of guilty as in Catalano, the submission, equivalent to a guilty plea, amounted to more than the routine 'slow plea of guilty' for, as in Catalano, it was part of a 'bargain,' the understanding of the parties having been spread on the record as required by People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409, albeit after submission. It was understood by the trial judge, defense counsel, defendant and prosecutor at the time the cause was submitted that in exchange for submitting the matter and offering no defense, defendant would receive a lesser sentence which, if county jail imprisonment, he could serve on weekends. The record shows that the terms of his bargain were kept. In People v. Catalano, 19 Cal.App.3d 83, at page 93, 96 Cal.Rptr. 349, we discussed the difference between the waiver of constitutional rights in a non-bargain situation and the surrender of those rights in the context of a plea basrgain and held that under the circumstances, a showing that defendant knew and discussed the details of a plea bargain constituted evidence that he was aware of his rights of confrontation and against self-incrimination; the fact that a bargain was struck focused defendant's attention on that which he relinquished by his agreement, and because there was offered a clear choice between taking a risk on a conviction of a more serious offense by insistiong on a full trial [100 Cal.Rptr. 627] and at the outset acceptiong a conviction of a lesser offense, his attention was directed to the effect of his plea upon his privilege against self-incrimination.
After conviction defense counsel stated to the court: '. . . I think the record should reflect that the following representations have been made to the defendant so the record is clear at this stage rather than in the days going by.
As in Catalano, the submission of the cause under the circumstances here and in light of the terms of the 'bargain' demonstrate that defendant not only knew the nature of the violation charged and was prepared to acquiesce in a finding of guilt but knew he would not meet his accusers face to face since he had elected not to put the state to its proof. However, here there is also an express waiver by defendant of his right of confrontation--the prosecutor asked him in open court if he wanted to have the judge read the transcript 'rather than confrontng the witnesses,' and defendant answered in the affirmative. As to his right againse self-incrimination, in light of defendant's concession that when the cause was submitted he understood the submission to be tantamount to plea of guilty and the People would offer no proof, his failure to make a defense and the clear showing in the record that he understood that in return for his 'slow plea of guilty' he would receive a lesser penalty, it is readily apparent that he was well aware of his right against self-incrimination and knowingly waived the same in return for assurances that he would not be sentenced to the state prison. (See People v. Catalano, 19 Cal.App.3d 83, 94, 96 Cal.Rptr. 349.) As stated in People v. Johnson, 18 Cal.App.3d 959, at page 963, 96 Cal.Rptr. 421, 424, 'Under the circumstances, his decision not to present evidence constituted the necessary wasiver of his privilege against self-incrimination. (Cf. In re Mosley, supra, 1 Cal.3d 913, 925-926, 83 Cal.Rptr. 809, 464 P.2d 473.)'
Having made the convincing argument that in fact the submission was equivalent to a guilty plea, appellant asserts that the evidence is insufficient to support the judgment of conviction. While under the circumstances, which also show he received the advantage of his bargain in the form of a jail sentence to be served on weekends, he may be precluded from raising such an issue, the record clearly shows defendant's offer to Feldman to sell 31 tablets of LSD for $3.25 each and Feldman's acceptance, and defendant's delivery of the drug at a 'drop' where Feldman picked it up and left the money.
Prior to trial and on July 20, 1970, defense counsel made a 'motion to determine the capacity of the defendant ot stand trial . . . to cooperate with counsel.' Two psychiatrists testified that defendant had a loss of memory in the area relating to the charge, although in the opinion of a third psychiatrist defendant was malingering. The court concluded 'that the defendant at this time is not competent to assist counsel in defending him,' and continued the cause for trial setting to January 6, 1971, at which time defense counsel would report whether defendant could 'go forward or if three additional medical examinations are in order.' Appellant claims that having found him 'not competent to stand trial' on July 20, 1970, and having 'placed the matter off calender,' the court erred when on January 6, 1971, it did not have a hearing and make a determination as to his 'capacity to stand trial.' He argues that the court 'could not resume proceeding without first trying the issue of [his] competence to stand trial' and making a finding thereoin, thereby seeking to invoke the procedure set up in section 1368, Penal Code. The contention is without merit.
The minute order of July 20, 1970, simply recites that the court found 'that defendant is presently unable to assist counsel in the defense of his case.'
Section 1368, Penal Code, provides: 'If at any time during the pendency of an action and prior to judgmengt a doubt arises as to the sanity of the defendant, the court must order the question as to his sanity to be determined by a trial by the court without a jury, or with a jury, if a trial by jury is demanded; and, from the time of such order, all proceedings in the criminal prosecution shall be suspinded until the question of the sanity of the defendant has been determined, and the trial jury in the criminal prosecution may be discharged, or retained, according to the discretion of the court until the determination of the issue of insanity.'
First, the trial court did not find defendant 'not competent to stand trial,' only that he was 'not competent to assist counsel in defending him' at that time. Doctors [100 Cal.Rptr. 628] Tweed and Abe concluded that defendant because of asn alleged subsequent injury suffered loss of memory in the area of the offense charged. It was conceded by defendant that he was able to understand the nature and purpose of the proceedings against him. Thus, it is clear from the evidence that loss of memory was the sole basis of the judge's finding that defendant was not competent to assist his counsel.
Second, neither before, at the hearing nor subsequent thereto in the trial court was there any question of defendant's sanity or general competence, in fact, all agreed that except for his claimed loss of memory defendant was able to function rationally, and at the hearing defense counsel conceded that defendant was able to understand the nature and the purpose of the proceedings taken against him. 'It is well settled that a defendant is sane within the meaning of Penal Code section 1368 if he is able to understand the nature and purpose of the proceedings against him and to rationally conduct his own defense [citations]. . . . Thus, even if appellant's memory for past events was permanently impaired, his ammesia could not compel doubt as a matter of law. Unlike insanity, a person suffering from ammesia may be perfectly rational within the meaning of Penal Code section 1368.' (People v. McBroom, 264 Cal.App.2d 242, 245, 70 Cal.Rptr. 326, 328.) Moreover, at no time was any doubt expressed as to defendant's sanity and no ruling was ever made relating thereto or as to his competence except as defendant's alleged loss of memory may have affected it.
Third, the court on July 20, 1970, did not 'place the matter off calendar' and there was no 'resumption' of criminal proceedings as asserted by appellant. Although defense counsel originally asked that the matter 'go off calendar for a period of six months to be recalendared,' the trial judge denied the request by ordering the cause continued for trial setting to January 6, 1970, at which time 'we'll have a report from counsel for the defendant whether he is in a position to go forward or if three additional medical examinations are in order'; the minute order of July 20, 1970, recites 'the cause is continued to January 6, 1971, at 9 a. m. for trial setting at which time counsel is to advise the court in the event of a change in defendant's condition.' This is simply not the situaion contemplated by section 1368, Penal Code, wherein the proceedings in the criminal prosecution have been suspended until the question of defendant's sanity is determined upon a hearing.
Fourth, a reporter's transcript of the oral proceedings had on January 6 is not part of the record before us and there is no showing as to what transpired and whether a finding was in fact made, but it is clear that there was some kine of hearing and a discussion regarding defendant's condition, fro the minute order of that date reflects the denial of defendant's motion requestiong psychiatric evaluation and the court's order 'that trial must proceed on 1-27-71,' which it did. While the record does not reflect a formal finding on January 6 that defendant was competent to assist counsel in his defense, the court's denial of defendant's motion requestion psychiatric evaluation and order that the trial proceed on January 27 strongly imply that defense counsel did make some kind of report to the court on defendant's condition, and that in rejectiong or accepting the same, as the case may be, the court found that defendant was competent to assist counsel in defending him. It should be noted at this point that the medical evidence at the hearing on July 20, 1970, was in conflict, Dr. Marcus having testified defendant was malingering, and Doctors Tweed and Abe having testified contra to that contained in their written reports filed [100 Cal.Rptr. 629] with the court. Accordingly, the trial judge, while ultimately finding defendant was then not dompetent to assist counsel in defending him, felt 'that possibly the defendant has been pulling his punches with these doctors.' Thus the evidence of defendant's loss of memory in the area of the incident not having been too strong at the outset, the implication in the court's order that the trial proceed is that after a discussion with defense counsel in open court six months later (June 6, 1971) the court found that defendant was free of any condition that would render him not competent to assist counsel in his defense.
Appellant does here contend that this had any effect on his decision to submit the cause.
The clerk's transcript shows that originally the complaint charged a violation of section 11911, Health and Safety Code (possession for sale of a restricted dangerous drug) and that at the very outset of the preliminary hearing in the presence of defendant and his counsel and without objection the complaint was amended to charge sale of a restricted dangerous drug in violation of section 11912, Health and Safety Code. Thereafter evidence was offered on the sale and defendant was held to answer on that charge. However, when the information was filed it recited the charge as a 'violation of Section 11912, Health and Safety Code' (sale of restricted dangerous drug) but described the offense as 'possession for sale of a restricted kangerous drug.' The cause was submitted on the evidence taken at the preliminary hearing, and the trial judge found defendant guilty as charged. While a minute order shows that on motion of the People the information was amended, the record fails to show any amendment thus the judgment erroneously recites that defendant was found guilty of the crime of 'violation of Section 11912, Health and Safety Code, a felony, as charged in the information as amended.'
Appellant's claim that 'possession for sale' as described in the information must be the correct charge hence 'section 11912, Health and Safety Code' should be changed to read 'section 11911, Health and Safety Code,' besides being wholly without substance comes a little late in view of the fact that at all times, from amendment of the complaint at the preliminary hearing to entry of judgment, all parties treated the charge as one of sale in violation of section 11912 which was never questioned by defendant despite the recital to such effect in 20 separate minute orders issued over a period of 23 months. The fact is that defendant was charged in the information with a violation of section 11012, Health and Safety Code, even though the offense was described therein as possession for sale. While we deem the matter not too important, to keep the record straight the judgment should be corrected to eliminate from the phrase 'violation of Section 11912, Health and Safety Code, a felony, as charged in the information as amended,' the words 'as amended.' (People v. Shirley, 10 Cal.App.3d 268, 275, 88 Cal.Rptr. 853.)
The judgment is affirmed and the trial court is directed to correct the judgment in accord with the foregoing.
WOOD, P. J., and CLARK, J., concur.
'It has been represented to him that as a result of this procedure, he will not be sentenced to the State Prison. The Court has made no promises to County time with the exception that if County time is in order in the Court's mind, that it will be on weekends.
'MR. STEFANO [deputy district attorney]: That's acceptable to the People.
'THE COURT: Being acceptable to the People and acceptable to the Police Department?
'MR. STEFANO: Yes. I have discussed the matter with Officer Feldman of the State Narcotics.
'THE COURT: Is he here?
'MR. STEFANO: Yes, he is, and he has indicated that he is not opposed to this type of situation.
'People feel that thes would be appropriate.'
Thereafter at the time of imposition of judgment and sentence defense counsel reminded the court, 'we have an agreement and understanding with regard to this . . . I know that our agreement was that in the event that time was indicated in Your Honor's mind, that it would be served on weekends. . . .' Mr. Stefano answered: 'I think that a tremendous concession was made in that People did agree that if time were imposed, with the concurrence of the investigationg officer and with the Court, it would be on weekends. . . .' The court in talking to defendant told him, 'Tremendous concessions were made . . . Concession after concession was made.'