People v. Kirkwood

California Court of Appeal May 31, 1977 No. Crim. 29872Published

Before: Ashby

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Holding. A submission on a police report requires the same on-the-record advisements and express waivers of constitutional rights as a submission on a reporter's transcript, as mandated by Bunnell v. Superior Court. Because the record failed to demonstrate that the defendant understood and knowingly waived his rights, the conviction must be reversed.

Issues

Whether a submission on a police report requires the same on-the-record advisements and waivers as a submission on a reporter's transcript.
Whether the trial court's record was sufficient to establish a knowing and voluntary waiver of the defendant's rights.

Disposition. reversed

Quotations verified verbatim against the opinion

“The trial court’s record in this case shows only that defendant was advised of and waived his right to a trial. The waiver was therefore inadequate to support the submission.”

Opinion

ASHBY, J.

Defendant was charged with misdemeanor drunk driving. (Veh. Code, § 23102, subd. (a).) The evidence at trial consisted solely of the police report which the court considered after the following submission:

“The Court: Sir, is it your desire that the matter be submitted to me on the basis of the police report to determine whether you are guilty or

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not guilty and you are giving up your right to both the jury trial and the court trial; is that correct?

“The Defendant: Yes.

“The Court: Counsel join?

“Mr. Anderson [Defense Counsel]: Counsel join.

“Mr. Martinez [Prosecutor]: Your Honor, may the record reflect that I have contacted Detective Parker of the sheriff’s department and he has consented to this submission on the police report.” Following this submission, defense counsel made a lengthy, but unsuccessful, argument that there was insufficient evidence in the police report to sustain a conviction. Defendant was found guilty as charged. He appealed from the judgment. The case is before us upon an order transferring it from the Appellate Department of the Los Angeles County Superior Court. (Cal. Rules of Court, rule 62(a).)

Defense counsel informed this court that he advised defendant before trial of the rights defendant would be waiving by submitting the case on the police report, that his strategy was to rely on the state of the evidence in the report, and that he believed defendant would be acquitted. Counsel thought that defendant understood what was about to happen, but defendant informed him immediately after trial that he had not understood in advance the procedure to be followed. The People now urge that because counsel believed the evidence was insufficient and because defendant was advised of his rights outside the record, a complete waiver of his rights on the record was not required.

Defendant’s challenge to the sufficiency of the evidence to sustain his conviction has no merit. However, we need not discuss that issue in depth because the issue upon which the appeal turns is whether the submission was based upon an adequate waiver of defendant’s rights. Our inquiry focuses on whether there is anything distinctive about this particular case which removes it from the ambit of the rules enunciated in

People v. Kirkwood

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ASHBY, J.

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