In Re Mosley

¶1I dissent.

¶2The majority do not contest that Brookhart v. Janis (1966) 384 U.S. 1, 4-5, 7-8 [16 L.Ed.2d 314, 317-318, 319-320, 86 S.Ct. 1245], stands for the preposition that a defendant cannot be held to a guilty plea unless he has either entered it personally or knowingly and understandingly acquiesced in his attorney’s entry of such a plea. The majority also do not dispute that submission of the case on the preliminary hearing transcript was tantamount to a guilty plea in this case. However, the majority maintain that a resolution of the “factual issue ... as to whether counsel did *928in fact inform petitioner that the submission procedure was tantamount to a plea of guilty in the circumstances” is not necessary to our disposition of the instant petition. (Ante, pp. 925-926.) The majority summarily dismiss as “incredible” petitioner’s allegation that he did not know that his consent to the submission procedure was tantamount in the circumstances to a plea of guilty.

¶3I cannot agree with the majority’s disposition of petitioner’s above allegation. In my opinion, the facts raise a substantial question as to the truth of petitioner’s allegation.

¶4Petitioner claims that his defense counsel did not explain to him the significance of submitting the case on the basis of the preliminary transcript.1 Petitioner entered a plea of not guilty at his arraignment (after the preliminary hearing), and he never changed his plea from not guilty to guilty. The record shows that the trial judge did not determine whether petitioner understood that the submission on the basis of the preliminary transcript amounted to a plea of guilty.

¶5In other words, the trial judge did not ascertain that the defendant understood the nature of his plea. (Cf. People v. Reeves, 64 Cal.2d 766, 772 [51 Cal.Rptr. 691, 415 P.2d 35].) The fact that petitioner expressly agreed to his attorney’s statement that the case was to be “submit[ted] ... on the transcript of the preliminary hearing. . . . [with] no further testimony” does not establish that petitioner understood the consequences of his consent. It certainly cannot be presumed that a lay defendant understands the consequences of a submission of a case on the transcript of the preliminary hearing. Indeed, I would presume, if anything, that the defendant —unless informed otherwise—does not understand the consequences of his conduct where, as here, he explicitly pleads “not guilty” and then without expressly changing his plea to “guilty” agrees to a procedure—the effects of which are not self-evident to a layman—which is tantamount in the particular circumstances to a plea of guilty.

¶6The fact that petitioner did not speak out at trial and reaffirm his not guilty plea is not determinative. The defendant in Brookhartspoke out to indicate he did not intend to plead guilty; however, he remained silent *929when, despite his outburst, his attorney reaffirmed his willingness to submit the matter at trial on the basis of a “prima facie case.” Nonetheless, despite the fact that the defendant there had at least some suspicion that the “prima facie case” procedure was at odds with his not guilty plea and yet silently acquiesced to that procedure, the Supreme Court determined that he had not “intelligently and knowingly” agreed to the procedure or its consequences. (Compare 384 U.S. at pp. 9-10 [16 L.Ed.2d at p. 320] (separate opinion of Harlan, J.), with id., at p. 7 [16 L.Ed.2d at p. 318].) In the present case, there is no such indication that petitioner even suspected the procedure employed at trial was at odds with his not guilty plea. The fact that he did not spontaneously reaffirm his not guilty plea is thus entirely consistent with the supposition that he did not realize that the integrity of that plea was jeopardized by the submission procedure.

¶7Nor is it determinative that petitioner knew of the evidence produced against him at the preliminary examination. Petitioner—a layman— cannot be presumed to know either that the testimony was legally sufficent to support, or that it compelled, a conviction.

¶8Thus, contrary to the majority opinion (ante, p. 925), there is nothing either in “petitioner’s conduct at the trial” or in “his knowledge of the evidence which had been produced against him at the preliminary examination” that renders “incredible” his claim that he was unaware that his consent to the submission procedure was tantamount to a plea of guilty. (Cf. Chavez v. Wilson (9th Cir. 1969) 417 F.2d 584, 585-586.)2 To hold otherwise is to presume that a lay defendant has the knowledge of a trained criminal attorney.

¶9I would order a reference hearing to determine whether petitioner’s consent to the submission procedure in this case was knowing and intelligent.3