
    Appellate Department, Superior Court, Los Angeles
    [Crim. A. No. 15326.
    Oct. 10, 1979.]
    THE PEOPLE, Plaintiff and Respondent, v. HERBERT DOUGLAS CUNDLE, Defendant and Appellant.
    
      Counsel
    Bear & Sommer and Paul R. Sommer for Defendant and Appellant.
    John K. Van de Kamp, District Attorney, Donald J. Kaplan and Roderick W. Leonard, Deputy District Attorneys, for Plaintiff and Respondent.
   Opinion

COLE, P. J.

The appellant appeals his conviction for violating section 314, subdivision 1 of the Penal Code (indecent exposure) asserting three grounds of error, none of which justifies reversal.

While representing himself the appellant took the stand and testified on his own behalf. A survey of the record on appeal discloses that the appellant was never informed by the court of his Fifth Amendment right not to testify and privilege against self-incrimination. The fact that he testified did not serve as a waiver of those rights and privileges. (People v. Solomos (1978) 83 Cal.App.3d 945 [148 Cal.Rptr. 248].) Thus error occurred in this respect although at an early stage of the proceedings appellant’s then counsel informed the court that appellant had indicated to him (the lawyer) that he understood his Fifth Amendment privileges.

We must first determine whether this error requires reversal per se or whether we may adopt the harmless error test of Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]. The cases are in conflict.

In People v. Solomos (1978) 83 Cal.App.3d 945 [148 Cal.Rptr. 248] the court held that a similar error required that the judgment be reversed. In so doing the court relied, inter alia, on People v. Kramer (1964) 227 Cal.App.2d 199 [38 Cal.Rptr. 487] and on Killpatrick v. Superior Court (1957) 153 Cal.App.2d 146 [314 P.2d 164]. Killpatrick is inapposite because there, in a civil contempt proceeding, the defendant was called to the stand by the prosecutor. Kramer squarely held as to an unrepresented defendant who had taken the stand without being advised of his right not to incriminate himself that “When, as we conclude in the instant case, a defendant has been denied any essential element of a fair trial or due process the judgment against him cannot stand.” (227 Cal.App.2d at p. 203.) In support of this statement Kramer cited only Killpatrick and People v. Sarazzawski (1945) 27 Cal.2d 7, 11 [161 P.2d 934], a case which holds that a violation of due process required a reversal but which did not in any way involve the problem of an unrepresented defendant testifying without advice of his right against self-incrimination.

The Solomos court itself was ambivalent. Having held that the judgment there involved could not be saved on the ground that the error was not prejudicial it then proceeded to apply the harmless error test of Chapman v. California, supra, 386 U.S. 18 and to hold that the error was not harmless under that test.

In contrast, the court in People v. Wells (1968) 261 Cal.App.2d 468 [68 Cal.Rptr. 400], adopted the Chapman rule, stating “Some incursions on the guarantee against self-incrimination may turn out to be so harmless in the setting of a particular case that they do not warrant reversal.” (261 Cal.App.2d at p. 481.) Principally cited for this conclusion was Chapman v. California itself, which involved the proper test to be adopted when a prosecutor, in violation of a defendant’s rights under Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229] commented on the defendant’s failure to testify and thus intruded on the right against self-incrimination. Wells was followed in the recent case of People v. Cervantes (1978) 87 Cal.App.3d 281, 289-290 [150 Cal.Rptr. 819].

We agree with the Wells and Cervantes decisions. In terms of magnitude the “incursion” on the right against self-incrimination which occurred here is probably of a lesser nature than the incursion which occurred in Chapman v. California. It is of a totally different type from the compelled-testimony situation found in Killpatrick v. Superior Court, supra, 153 Cal.App.2d 146 on which People v. Kramer, supra, 227 Cal.App.2d 199 replied. People v. Solomos, supra, 83 Cal.App.3d 945 relied upon Kramer. Finally, Wells postdates Kramer and Killpatrick.

Applying the Chapman test to this case we find no reasonable possibility that the error affected the outcome of the trial. There was no issue as to identity nor any evidence contrary to that offered by the People. Two eyewitnesses identified appellant. One observed the criminal act directly and the other observed circumstances corroborative of it. A police officer testified that appellant admitted the act. There was no contrary evidence.

The appellant next contends that his right to confront and cross-examine witnesses was violated by the action of the trial court in deleting the names of the witnesses from the copy of the police report which he received. In light of the facts before this court and the absence of a motion for production of the names, we cannot say that the court abused its discretion by ordering disclosure delayed. (People v. Lopez (1963) 60 Cal.2d 223, 246-247 [32 Cal.Rptr. 424, 384 P.2d 16].)

The appellant’s third contention is that he lacked sufficient mental capacity to waive his constitutional right to counsel. He supports this claim by references to instances in the record wherein the court discussed the question of his competency to represent himself. A review of these remarks in the record indicates that the trial judge was discussing the legal ability of the defendant in representing himself, and not his mental capacity. The record does not demonstrate that the court believed there was any question regarding the defendant’s mental capacity and thus no inquiry along that line needed to be made. (See People v. Lopez (1977) 71 Cal.App.3d 568, 573 [138 Cal.Rptr. 36].)

The judgment is affirmed.

Dowds, J., concurred.

SAETA, J., Concurring and Dissenting.

I agree with the majority of all points except one. In my opinion the failure to advise the defendant of his right not to testify and to avoid self-incrimination was error requiring a reversal per se of this conviction.

Given the conflict in the decisions of the Courts of Appeal as reflected in People v. Solomos (1978) 83 Cal.App.3d 945 [148 Cal.Rptr. 248] and People v. Cervantes (1978) 87 Cal.App.3d 281 [15Ó Cal.Rptr. 819], we are at liberty to adopt the more reasonable rule. The majority has chosen the harmless error holding of Cervantes; I would follow Solomos. I see no need to rearticulate my colleagues’ reasons for their choice. Here are mine.

The right against self-incrimination is one of the four most basic constitutional rights possessed by an accused. Putting aside the right to counsel, the right against self-incrimination and the rights to a jury and to confront witnesses have been underscored in their importance by Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709] and In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449]. I think it instructive to note the dates of those two landmark cases. Cases cited by the majority which precede 1969 lose some of their persuasiveness since Boykin and Tahl. Since 1969 we have been taught that the right against self-incrimination should be honored with great fidelity. In Mills v. Municipal Court (1973) 10 Cal.3d 288 [110 Cal.Rptr. 329, 515 P.2d 273] in the plea of guilty context we are told: “Thus, on the basis of both the rationale of the Boykin and Tahl decisions and the practicalities of the situation, we now conclude that the Boykin-Tahl requirements of an explicit ‘on the record’ waiver of a defendant’s constitutional rights is applicable to the acceptance of all guilty pleas—to both felonies and misdemeanors—whenever the defendant appears before the court either in person or by counsel.” (10 Cal.3d at pp. 301-302.)

The importance of the right against self-incrimination was more recently contrasted with lesser rights of the defendant in In re Ronald E. (1977) 19 Cal.3d 315 [137 Cal.Rptr. 781, 562 P.2d 684]: “Finally, in In re Yurko (1974) 10 Cal.3d 857 [112 Cal.Rptr. 513, 519 P.2d 561], we noted that the admonishments with respect to the privilege against self-incrimination and the rights to a jury trial and to confront witnesses were constitutionally compelled, as distinguished from the admonishments with respect to the other rights mentioned in Tahl. We announced a judicially declared rule of criminal procedure requiring a court to admonish an accused as to the consequences of an admission which may subject him to severe sanctions... . [Fn. omitted.] Unlike an uninformed waiver of the specified constitutional rights which renders a plea or admission involuntary and requires that it be set aside, an uninformed waiver based on the failure of the court to advise an accused of the consequences of an admission constitutes error which requires that the admission be set aside only if the error is prejudicial to the accused. (Id., at p. 864.)” (19 Cal.3d at pp. 320-321.) I read the above passage from Ronald E. to mean that violation of the right against self-incrimination requires a reversal per se. This is in contrast to the rule set forth in In re Tahl that the defendant must be informed of the consequences of a guilty plea which requires the court to determine if any error is prejudicial.

Against this background of California Supreme Court pronouncements in Tahl, Mills and Ronald E., I compare the reasoning of Solomos and Cervantes. The only articulated rationale in Cervantes motivating the choice of the harmless error rule is that People v. Wells (1968) 261 Cal.App.2d 468 [68 Cal.Rptr. 400] is a more recent case than People v. Kramer (1964) 227 Cal.App.2d 199 [38 Cal.Rptr. 487] and Killpatrick v. Superior Court (1957) 153 Cal.App.2d 146 [314 P.2d 164]. An election based on the age of cases without further analysis is not persuasive to me. Since Wells, the law respecting this constitutional right has undergone significant changes as seen in the Supreme Court cases cited above. The Solomos rationale, as I read it, is a reflection of due process concepts—a defendant must have a reasoned choice of testifying or not in order for the criminal proceedings to be fair. Given the weight ascribed to this constitutional right, I am more persuaded by this rationale. I find it more fundamental that a defendant be advised of his right not to testify, thus permitting him to choose whether or not to exercise that right, than to gauge the effect of a comment on that exercise. For these reasons, I do not feel that Chapman v. California (1967) 386 U.S. 18 [17 L.Ed. 705, 87 S.Ct. 824, 24 A.L.R. 3d 1065] fully reaches the facts presented here. In our case the defendant took the stand and in effect confessed to the commission of the crime charged.

For the violation of the defendant’s right against self-incrimination, I would reverse the judgment of conviction. 
      
      The Cervantes opinion also states that “[Defendant Wells’ petition for a hearing by the Supreme Court was denied.” (87 Cal.App.3d at page 290.) Denial of a hearing by the Supreme Court adds very little, if any, weight to an appellate decision. (See 6 Wit-kin, Cal. Procedure (2d ed. 1971) § 670.)
     