People v. Cook

Opinion

KAUS, P. J. Charged in count I, with murder and in counts II and III with kidnaping for the purpose of robbery, defendant pleaded not guilty. One Lawrence Amen Thomas had been charged with the same murder. In fact it was the prosecution’s case that it was Thomas who did the actual killing and that Cook merely aided and abetted him. Thomas’ case was tried first. He testified in his own behalf and was acquitted. Shortly thereafter defendant’s case was called for trial before the same judge. Defendant was represented by private counsel. It is perfectly obvious that the reported proceedings are nothing but an elaborate script of the type not uncommon before the Supreme Court, in People v. West, 3 Cal.3d 595, 604-611 [91 Cal.Rptr. 385, 477 P.2d 409], made plea bargains respectable.

At the outset of the proceedings defendant’s counsel announced that his . client had decided to waive his right to trial by jury. The prosecutor then by questioning defendant, ascertained that: (1) defendant had disclosed all he knew about the facts and circumstances surrounding the charges against him to his attorney; (2) he had thoroughly discussed the matter with his attorney; (3) the attorney had advised him concerning the applicable law as he saw it; and (4) defendant was aware of the nature of a jury trial and the need for a unanimous verdict.

The prosecutor then, without breaking stride, though no one had said for the record that the matter would be tried without the People producing witnesses, ascertained through further questioning of defendant that he was aware of his right of confrontation. Referring to a suggestion of defense counsel which does not appear on the record, the prosecutor made it clear that if the matter were to be submitted on the transcripts of the Thomas trial and defendant’s own preliminary hearing, defendant would not be confronting anybody. Referring to nothing that appears on the record the prosecutor then ascertained that such a submission on the transcripts would, in defendant’s understanding, mean that he was giving up his “rights completely to present any defense.” He also ascertained that defendant understood that he could not be compelled to testify against himr self and that “to the extent that these transcripts show you are guilty” defendant was giving up his “right of [sic] self-incrimination.” He made certain that defendant understood that in the prosecutor’s opinion the [408]transcripts contained sufficient evidence to convict him of second degree murder and that defendant realized that he would not be able to testify in his own behalf nor call any witnesses in his defense. Finally he brought out that defendant understood that while no one could promise him how the court would dispose of the matter and how long he would have to> remain in a state prison or with the Youth Authority, the court had indicated in a chambers discussion that it would consider a referral to the Youth Authority