Does a stipulation requiring a defendant to plead not guilty to a charge of first degree murder constitute a plea of guilty entered by counsel?

Defendant's counsel in this court relies on People v. Rogers (1961) 56 Cal.2d 301, 14 Cal.Rptr. 660, 363 P.2d 892, and urges that this stipulation amounted to a plea of guilty entered by counsel and not by defendant personally. But in Rogers, the stipulation was that the trial court was not to consider either a finding of first degree murder or a finding of not guilty, but was to restrict its deliberation to a choice between murder in the second degree and manslaughter. Clearly, that stipulation amounted to a plea of guilty to one of [244 Cal.App.2d 142] the two lesser degrees of homicide and, as such, required the clear personal concurrence of the defendant. But here the stipulation went no further than to admit, on behalf of defendant, certain facts. Whether or not those facts, taken together with other evidence would support a finding of the offense charged, or of some lesser offense, or

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As the Attorney General points out, in the then status of the case, there was before the court evidence which overwhelmingly supported a finding of possession of heroin by defendant for the purpose of sale. The trial counsel could not, if the facts set out in the stipulation were true (and that it not denied), allow his client to take the stand and deny the testimony from the People's witnesses which incriminated him. The attorney then was faced with three choices: (a) to rest without further testimony--a tactic which could have had no result other than a conviction of the offense charged; (b) to place his client on the stand, have him tell his version, necessarily admitting--either on direct or on cross-examination--the facts here stipulated to--a tactic which, if defendant were unprepossessing or otherwise not a 'good' witness, might well prejudice him; or (c) to keep his client off the stand, candidly admit as little as was consistent with truth, and hope for some favorable reaction from the court. These are always difficult considerations of trial strategy and tactics ⁵ and the determination thereof by counsel is part of his professional obligation. We cannot, and do not attempt to second guess him here. (People v. Brooks (1966) 64 Cal.2d 130, 143, ^A 48 Cal.Rptr. 879, 410 P.2d 383; and cf. People v. Dickerson (1966) 242 Cal.App.2d 73, ^B 51 Cal.Rptr. 113.)