Opinion
Hearing Granted Dec. 13, 1967. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Rose-Marie Gruenwald, Deputy Atty. Gen., for plaintiff and respondent.
The petitioner having been released from custody, the order to show cause was discharged and the proceeding was dismissed as moot.
Gary A. Schlessinger, Beverly Hills, under appointment by the Court of Appeal, for petitioner.
KINGSLEY, Associate Justice.
Petitioner was prosecuted for burglary in two separate cases. In one case (Sup. Ct. No. 279410) he pled not guilty and, after two trials, was convicted. On appeal we reversed that conviction because of the use against him of a confession obtained in violation of the rules laid down in People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361. (People v. Replogle (1967) 250 Cal.App.2d ----, 58 Cal.Rptr. 683.) In the other case (Sup. Ct. No. 285024) he was originally charged with two counts of burglary in the first degree; he pled guilty to one count and, on the recommendation of the prosecutor, the court found the burglary to be in the second degree; the second count was dismissed. He appealed before that conviction also and we affirmed the judgment in the same opinion as that in which we reversed the other conviction.
250 A.C.A. 712.
As one of the points urged on us for reversal of the conviction in case number 285024 defendant contended that his plea of guilty was induced by the fact that he had, in that case also, made a confession which was inadmissible under Dorado and that (the plea being entered in April of 1964) he was unaware of the fact that the confession could not validly be used against him. As we have said, we rejected that contention, on that appeal, on the ground that it was not a matter that could be raised on appeal. (People v. Replogle (1967) 250 Cal.App.2d ----, ----, 58 Cal.Rptr. 683.) Petitioner applied for hearing in the Supreme Court and hearing was denied. However, concurrently with his petition for hearing in the Supreme Court, he filed a petition for habeas corpus, raising the same contention. The Supreme Court issued its order to show cause, on that petition, making it returnable before this court. We appointed counsel to represent petitioner in this matter and appointed a referee to conduct a hearing, take testimony, and report to us his findings of fact and his recommendation.
250 A.C.A. 712, 716-717.
Pursuant to that order, the referee held a hearing, at which petitioner was present, received evidence both oral and documentary, and has filed herein his formal report. Petitioner has filed objections to the report and the matter has been fully briefed. We adopt the referee's findings numbered I, II and III, as hereinafter set forth and, based on those findings, deny the petition.
I
If, in fact, petitioner's plea of guilty was induced by his earlier, and unlawfully obtained, confession, he is entitled to relief in the present proceeding. People v. Spencer
Since petitioner's appeal from the judgment based on his guilty plea (permissible because taken from the effective date of Pen.Code § 1237.5), was still pending before this court in 1967, the judgment obviously had not become final before June 22, 1964, and contentions based on Dorado are still available to him on habeas corpus. (In re Shipp (1967) 66 Cal.2d ----, 59 Cal.Rptr. 97, 427 P.2d 761.)[d]
The referee has reported to us his findings on the controlling issues, as follows:
'FINDING I
'Referee finds that petitioner's 'A', and any oral confessions made by petitioner to Police Officer Farr were made without the petitioner having been advised of his right to remain silent, his right to have counsel, and that any statements he might make could be used against him in a court of law. This Finding is substantiated by the testimony of witness Maurice E. Farr, and by stipulation of the parties to the proceeding.
'FINDING II
'The Referee finds that defendant's plea of 'Guilty' was not induced by any confession obtained from him in violation of his rights.
'* * *
'FINDING III
'The Referee specifically finds that the confession in case #285024 was not the controlling factor in petitioner's change of plea'
In support of his basic finding--finding number II--the referee reported as follows:
'Certainly if the Referee adopts the Attorney General's position with respect to the burden of proof, the conclusion reached in Finding Number II is inevitable. As a matter of fact, this Finding has been proven to the Referee's satisfaction beyond a reasonable doubt.
'J. Stanley Brill, Deputy Public Defender testified as follows:
'1. As of April 13, 1964 he had handled at least 5,000 cases, and not more than 15 or 20 per cent of such cases went to trial;
'2. Before advising the defendant as to what type of plea to enter he read the preliminary transcript, the probation officer's report in case #279416, and re-read his interview sheet, and the preliminary transcript;
'3. Talked the entire matter over thoroughly with the defendant, spoke to the police officers, and initiated discovery proceedings probably informally, by having access to and reading the District Attorney's file;
'4. Read and considered statements that defendant had made to two other Deputy Public Defenders, namely Mr. Boags and Mr. Gleason;
'5. When he talked to the defendant, defendant indicated that he wanted to change his plea to 'Guilty', and further, that although Mr. Brill didn't recall the reasons given for defendant's desire to change his plea there was, however, a mutual meeting of minds between himself and the defendant to change the plea to 'Guilty'.
'6. He took into consideration the possible punishment, and differences in the same for first and second degree burglary;
'7. That defendant didn't have any defense to the charges set forth in the information;
'8. That because the People were willing to ask for a dismissal on count two, and stipulate that the charge set forth in count one was 'burglary in the second degree', defendant 'got a good bargain.'
'9. The defendant told him that he was 'Guilty', and that insofar as the confession was concerned it was not a controlling factor in advising a change of plea, but the confession was 'frosting on the cake'.
'Although petitioner himself testified that he would not have changed his plea to 'guilty' if he had known the confession was inadmissible, the Referee attributes this to the expediency of the moment. This conclusion is reached because 'The proceedings of April 13, 1967, wherein the change of plea was taken, are further indicative of defendant's state of mind at that time, and these proceedings and their validity are substantiated by Mr. Brill's testimony summarized above.'
This is an accurate summary of the record before us. As we have said, that record, so summarized, supports the findings.
II
However, the referee also reported that although, as above set forth, the finding was against petitioner if he had the burden of proof and even if the burden was on the prosecution by the civil test of proof by a fair preponderance of the evidence, the finding would have to be in favor of petitioner if the prosecution was required to prove, beyond a reasonable doubt, that his guilty plea was not induced by the earlier confession. We concur in that opinion. We turn then to consider the problem of burden of proof in a case such as this.
Petitioner relies on language in IN RE SHIPP (1967) 66 Cal.2d ----, ----, 59 CAL.RPTR. 97, 427 P.2d 761, where the Supreme Court quoted from its earlier decision in PEOPLE V. SPENCER (1967) 66 Cal.2d ----, ----, 57 CAL.RPTR. 163, 170, 424 P.2d 715, 722, as follows:
'To overcome the likelihood that the erroneous introduction of defendant's extrajudicial confession impelled his testimonial one, the State bears the burden of showing that the causative link between the two confessions had been broken. '[T]he beneficiary of a constitutional error [must] prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' (Italics added.) (Chapman v. State of California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.)'
However, in both Shipp and in Spencer, the prosecution had taken the initial affirmative step of introducing the illegally obtained confession. In the appellate court it was, therefore, forced to contend that that error had been rendered harmless by the defendant's subsequent, in-court, confession from the stand. It is clear that, under such circumstances, Chapman requires the prosecution to bear the high burden of securing relief from its own in-court error.
We note, also, that, in United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, 1164, the United States Supreme Court, in dealing with the admissibility of in-court identification of a defendant subsequent to an out-of-court identification in a lineup illegally conducted, held that the prosecution had a similar burden of proving, beyond a reasonable doubt, that the in-court identification was not the product of the earlier and illegally obtained, identification. But here, also, the prosecution had taken an initiative in tendering evidence. Again, that tender legitimately placed on it, in the face of objection, the burden of proving admissibility.
But in the case at Bench, the prosecution neither attempted to introduce the illegal confession nor did it take an affirmative action to introduce other evidence potentially tainted. The case at Bench is governed not by Shipp, Spencer or Wade, but by People v. Enriquez (1967) 65 Cal.2d 746, 56 Cal.Rptr. 334, 423 P.2d 262; In re Seiterle (1964) 61 Cal.2d 651, 39 Cal.Rptr. 716, 394 P.2d 556, and to some extent by People v. Reid (1965) 233 Cal.App.2d 163, 174-176, 43 Cal.Rptr. 379, in all of which a plea or in-court confession was Here defendant had admitted his guilt, not only to the officers but to his counsel; he entered his guilty plea after consultations with his attorney and in return for a leniency not otherwise available to him. We conclude that, on these facts, the burden is on him to show that his statement to the trial court, when the guilty plea was entered, was untrue and that he then had a concealed motive disclosed for the first time some two years later. This he has not done.
When petitioner sought to withdraw his earlier plea of not guilty and enter a plea of guilty, he was questioned as follows:
The petition is denied.
FILES, P. J., and JEFFERSON, J., concur.
[d]. 66 A.C. 751.
'MR. CHERNISS: You are going to plead guilty to Count I of this Information which charges you with burglary, a felony, because you believe in truth and in fact you are guilty of the crime of burglary as charged in this Information? Are you pleading guilty because you believe you are guilty?
'THE DEFENDANT: Yes.'