People v. Jordan

Opinion mission of the case to the court on the transcript of the preliminary exami-

COBEY, J. Carl Eugene Jordan appeals, following a stipulated sub-[599]nation, from a judgment of conviction of one count of grant theft. (Pen. Code, §§ 484, 487, subd. 1.) A second count of grand theft was dismissed on motion of the prosecutor.

According to the evidence offered by the People at the preliminary examination,1 appellant, then a corporate officer, without authority to do so, opened a corporate petty cash account in a certain bank and deposited therein two checks payable to the corporation in the amount of $4,730.96. He then withdrew this amount from the account by means of three checks made payable to cash and endorsed by him alone. The corporation never received any of these proceeds which apparently were retained by appellant for his own use.

Appellant asks that we reverse his conviction because (1) the submission of the case on the transcript of the preliminary examination was tantamount to a plea of guilty by him, (2) he did not then personally affirm or acquiesce in this procedure as required by In re Mosley, 1 Cal.3d 913 [83 Cal.Rptr. 809, 464 P.2d 473], and (3) in any event the safeguards imposed by In re Tahl, 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449], were not observed prior to the acceptance of his, in effect, plea of guilty.

We do not agree. It is true that when the case was called for trial appellant personally did not waive his right to a full trial, but he made no protest when his counsel did so for him by accepting in his presence the stipulation offered by the prosecutor that the case be decided by the court solely on the transcript of the preliminary examination. He, therefore, acquiesced in his counsel’s waiver of the full trial at that time.2 See In re Mosley, supra, 1 Cal.3d 913, 924; People v. McFadden, 4 Cal.App.3d 672, 691-692 [84 Cal.Rptr. 675].)

Furthermore, we do not believe that the safeguards required by Tahl prior to the acceptance of a plea of guilty apply to this case which [600]was tried on July 7, 1969. It is true that this trial occurred over a month after the decision of the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709] and Tahl held that the safeguards imposed by it pursuant to Boykin must be followed in “those cases in which pleas were entered subsequent to the effective date of that decision.” (In re Tahl, supra, 1 Cal.3d 122, 135. See, however, People v. Rizer, 10 Cal.App.3d 259, 263-265 [88 Cal.Rptr. 773].) But under Tahl these safeguards are required only prior to acceptance of a plea of guilty. No plea of guilty, as such, was accepted in this case.