In Re Horton

MOSK, J.

I dissent. Defense counsel stated in open court that they would obtain defendant’s signature on a stipulation form to permit the court commissioner to try this capital case. 1 They never did. Neglecting to check the file, the commissioner apparently believed a signed stipulation was in the file. It was not. Defendant made it clear in open court that he had not signed a stipulation. He was ignored. Despite those crucial omissions, the majority approve of one who is not a superior court judge hearing a capital case and imposing a death sentence. This cannot be condoned.

Article VI, section 21 of the Constitution permits a cause to be tried by “a temporary judge” but only on “stipulation of the parties.” The operative words are “stipulation” and “parties.” This defendant, being a party, must consent to a nonjudge trying his case. The consent must be by the defendant personally, not by the prosecutor, a friend, a spouse, or a lawyer. And certainly, in the absence of a stipulation by anyone, not merely by implication.

Indeed, I find it shocking that one who is not a judge chosen by and responsible to society can merely by inference and implication be given the awesome power of determining life or death for a human being.

The majority rationalize that the stipulation necessary to vest the commissioner with authority to try the case could be inferred from the conduct of defense counsel. However, it appears that defense counsel were operating under the mistaken premise that defendant had signed a stipulation form when in fact they had failed to ask for his signature and indeed forgot to even broach the subject. Consequently, defendant never learned that he had the right to be tried by a superior court judge or that he could object to the commissioner sitting as a judge. I fail to see how the necessary stipulation *102 can be inferred from counsel’s conduct when their client was not made aware of the existence of the right.

The cases cited by the majority for the proposition that an attorney’s conduct alone may substitute for the necessary stipulation are not persuasive. Each case is distinguishable on the ground that counsel acted with their client’s consent. Thus in Yetenekian v. Superior Court (1983) 140 Cal.App.3d 361, 366 [ 189 Cal.Rptr. 458 ], no stipulation was found because the attorney informed the court early in the proceedings that his client did not stipulate to the commissioner sitting as a temporary judge. In People v. Benedict (1969) 2 Cal.App.3d 400, 405 [ 82 Cal.Rptr. 759 ], a stipulation was found because counsel entered into and signed the stipulation for his client. In Estate of Lacy (1975) 54 Cal.App.3d 172, 182 [ 126 Cal.Rptr. 432 ], and Estate of Soforenko (1968) 260 Cal.App.2d 765 , 766 [ 67 Cal.Rptr. 563 ], although a stipulation was found because the attorneys voiced no objection and fully participated in the proceedings, there was no indication that the clients themselves did not agree to the matter being heard by a commissioner.

Not so here. In the instant case, counsel never—on defendant’s behalf— expressly objected, expressly agreed, or by their conduct impliedly agreed to the commissioner sitting as a judge. Instead, their conduct merely conformed to their mistaken belief that defendant personally had signed a stipulation. Thus, this is not a situation in which the attorneys sat back, fully participated in the trial, and then on receiving an unfavorable result claimed that the court was without jurisdiction. (Estate of Lucy, supra, 54 Cal.App.3d at p. 182 .) Rather this appears to be a case of an inexplicably careless, but innocent mistake.

The majority read the constitutional language authorizing trial by temporary judge in light of “the general rule that in both civil and criminal matters, a party’s attorney has general authority to control the procedural aspects of the litigation and, indeed, to bind the client in these matters.” (Maj. opn., ante, at p. 94.) Yet the decision on whether to stipulate to the matter being heard by one who is not a judge is not merely procedural.

A judge, whether temporary or not, is required to adjudicate many critical trial issues including what evidence will be admitted, what objections are meritorious, what instructions are proper, and ultimately what sentence should be pronounced. In a capital case the trial judge has the special duty, whenever the jury returns a verdict of death, to independently review and weigh the evidence of aggravating and mitigating factors and then pronounce sentence. (Pen. Code, § 190.4, subd. (e).) Thus the decision whether to stipulate to trial before a commissioner may very well involve the *103 substantive rights of the accused. (See Coleman v. McCormick (9th Cir. 1989) 874 F.2d 1280, 1287 (en banc) [“It is one thing to accept a judge for the purpose of conducting a fair trial, and quite another to accept that judge not only to conduct the trial but to become the sole decisionmaker on the question of life or death.”].)

In Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 407 [ 212 Cal.Rptr. 151 , 696 P.2d 645 , 48 A.L.R.4th 109 ], a unanimous court held that an attorney without express authorization did not have implied or apparent authority to submit litigation to arbitration. The client was entitled to a court trial before a qualified judge. In the seminal case of Linsk v. Linsk (1969) 70 Cal.2d 272 [ 74 Cal.Rptr. 544 , 449 P.2d 760 ], this court in a unanimous opinion discussed in depth the authority of counsel. Although Linsk was a civil case, it dealt with unauthorized action by counsel in the absence of a stipulation by the litigant. Construing the concept that an attorney may bind his client “in any of the steps of an action or proceeding” (Code Civ. Proc., § 283), we held that counsel may act for his client in procedural matters arising during the course of the action, but he may not impair the client’s substantive rights. ( 70 Cal.2d at p. 278 .)

Fundamental constitutional rights are not susceptible of waiver except by the defendant personally or by the defendant’s approval of a waiver undertaken by counsel. (E.g., In re Mosley (1970) 1 Cal.3d 913, 924 [ 83 Cal.Rptr. 809 , 464 P.2d 473 ] [right to plead not guilty and stand trial]; People v. Holmes (1960) 54 Cal.2d 442, 443-444 [ 5 Cal.Rptr. 871 , 353 P.2d 583 ] [jury trial]; People v. Robles (1970) 2 Cal.3d 205, 215 [ 85 Cal.Rptr. 166 , 466 P.2d 710 ] [right to testify]; Townsend v. Superior Court (1975) 15 Cal.3d 774, 785 [ 126 Cal.Rptr. 251 , 543 P.2d 619 ] (dis. opn. by Mosk, J.) [right to speedy trial].)

To have a capital case, involving the defendant’s life or death, tried by a duly qualified judge would seem to be in the same category of fundamental rights.

There are, of course, significant differences between commissioners and judges. Without denigrating the administrative and subordinate judicial services often rendered by commissioners, they do not have the qualifications, responsibilities, independence and protections of judges. This principle is recognized in article VI of the California Constitution creating a judicial appointment and retention procedure designed to foster an independent judiciary. For example, section 18 of article VI provides that judges may be removed from office prior to the completion of their term only for wilful misconduct, persistent failure to perform judicial duties, or other seriously detrimental conduct. Court commissioners, in contrast, are not institutionally *104 protected by the Constitution and serve solely at “the pleasure of the court appointing [them].” (Gov. Code, § 70142.)

In the instant case the court commissioner lacked authority to preside over defendant’s capital trial because defendant personally did not stipulate, as required by the Constitution. I would grant defendant’s petition for habeas corpus relief.

Petitioner’s application rehearing was denied October 2, 1991. Mosk, J., was of the opinion that the application should be granted.

Although this is a habeas corpus matter and Horton is technically the petitioner, since he was the defendant in the underlying criminal trial I refer to him herein as the defendant.