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District Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Robert John DAVIS and Peter Walter Pihi, Defendants and Appellants.

Cr. 10650.

Decided: November 03, 1965

Bernard V. Ousley, Pomona, under appointment by the District Court of Appeal, for defendant and appellant Robert John Davis. Stuart J. Faber, Hollywood, for defendant and appellant Peter Walter Pihl. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and S. Clark Moore, Deputy Atty. Gen., for plaintiff and respondent.

Defendants were charged by information with a violation of section 4390 of the Business and Professions Code of the State of California (forgery of a prescription). They pled ‘not guilty.’ By stipulation, the matter was submitted on the testimony contained in the preliminary transcript. It was also stipulated that the judge might consider a preliminary hearing in another matter involving these same defendants, theretofore held in the Santa Anita Judicial District.

Defendants were found guilty as charged, probation was denied; and defendants were sentenced to be imprisoned in the state prison for the term prescribed by law. Defendants have appealed from the judgment of conviction.

At 12:20 a. m., on April 23, 1964, an officer of the Arcadia Police Department stopped a car, driven by defendant Pihl, in which defendant Davis was a passenger, because the car did not have operable low beam headlights. The backseat of the car contained a large quantity of bakery goods. Neither occupant could produce any identification, the stories told by them as to the ownership of the car and as to their possession of the bakery goods and their presence at that hour at that place were conflicting and on their face not reasonable. Both occupants appeared to be under the influence of some form of drug; their answers were hesitant and their demeanor abnormal. A search of the defendants and the car disclosed a marijuana cigarette and, among other items, seconal. The defendants were formally arrested for a violation of the vagrancy statute and were later booked on the charge of possession of marijuana—the charge involved in the Santa Anita court proceeding above mentioned.

Subsequent investigation, by other officers, of the possession of seconal tablets disclosed that seconal tablets had been purchased, at Hunter's Pharmacy in Long Beach, by use of a prescription issued in Davis' name and purportedly signed by a Doctor Dahlquist—a prescription which it is herein alleged was forged by Davis with the assistance of Pihl.

Officer Rickard, of the Long Beach Police Department, testified that he and his partner, Officer Locke, had ‘conversations' with Davis and later with Pihl, at ‘the Narcotic Bureau quarters.’ During the ‘conversation’ with Davis, the prescription was shown to him and he was asked if he wrote it. He replied: ‘Yes, that looks like me.’ When asked that he had done with the medicine, Davis said that he did not know, that part of it was in his possession when he was arrested in Arcadia. When asked why he had written the prescription, he stated he just wanted to see if he could do it. When questioned as to why he wrote it for tablets, Davis said that was the way Dr. Pike did it. Davis said Pihl drove him to the pharmacy but Pihl stayed in the car.

A ‘conversation’ between Officer Rickard and defendant Pihl then followed. The officer's testimony as to that event was as follows:

‘I talked with Mr. Pihl regarding the charge. He told me about a week prior to Davis having passed the prescription at Hunter's that he had been in the Harriman Jones Medical Clinic and he had stolen two or three blank prescription blanks. I asked him why he took the blanks. He stated a short while earlier it had been suggested to him by Davis that they could be used. He said when he was in the office he found himself alone in there and he just picked them up. He told me he had taken the prescription blanks home to the apartment he shared with Davis at 187 Corona and gave them to Davis and later drove Davis up to the Hunter Pharmacy and waited outside while Davis went in and passed the prescription. He said after Davis came out Davis gave him two or three of the capsules and he used them that afternoon when he went to play touch football. That was the substance of the conversation on this charge.’

At the trial, it was contended that the original arrest and search, in Arcadia, was illegal and, therefore, the evidence as to the purchase of the seconal and the use of the forged prescription in that connection, being the ‘fruit’ of an illegal search, was inadmissible. The contention was rejected by the trial court. It is not urged in the briefs on appeal and, at oral argument before us, it was expressly abandoned as a ground for reversal.

The sole point urged on us, on this appeal, is that the use of the statements above quoted violated the rule requiring an advance warning of constitutional rights.

As laid down in People v. Dorado (1965) 62 Cal.2d 338, 353, 354, 42 Cal.Rptr. 169, 179, 398 P.2d 361, 371, the elements of that rule are as follows:

‘* * * (1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements, (4) the authorities had not effectively informed defendant of his right to counsel or of his absolute right to remain silent, and no evidence establishes that he had waived these rights.’

The record presented to us on this appeal tells us very little as to the applicability of these rules. It is totally silent as to whether or not the required warning of constitutional rights had been given. It tells us almost nothing as to the extent of the investigation, in Long Beach, concerning the purchase of seconal by means of the questioned prescription and gives us only in the broadest of outline what that investigation had revealed. We have only a brief summary, in Officer Rickard's own words, of the conversations with Davis and Pihl at the Narcotics Bureau. As a result, while we do know that these defendants were in custody (although for a different offense) we cannot say whether or not the investigation had already ‘focused’ on them as the forgers and as the buyers, or whether the police were still in the stage of investigating other reasonably possible explanations of the transaction.1 And we are required to speculate as to whether the ‘conversations' above referred to were part of a ‘process of interrogation’ or whether a simple introductory inquiry triggered a voluntary flood of incriminatory detail.

While the arrest, the ‘conversations,’ and the preliminary examination in this case all preceded the filing of the opinion of the United States Supreme Court in Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and the filing of the original opinion in the case of People v. Dorado,2 the trial, in October of 1964, followed both those opinions, although, at the time of trial, a rehearing in Dorado had been granted. The record shows that trial counsel were aware of the two opinions just referred to and that they urged them on the trial court. While the court rejected the argument, pointing to factual differences between this case and Escobedo, and to the grant of rehearing in Dorado, still at the trial stage, it could not be said that counsel needed clairvoyance in order to realize that a full record on the issues presented by those opinions was desirable. A single question would have cleared up the matter of warning; a few more would have elucidated whether the investigation had reached the ‘accusatory’ stage, and would have given us the all important details as to the nature and extent of ‘interrogation’ involved in the ‘conversations.’

The cases relied on by defendants were cases where the trial had preceded the opinion in Escobedo; and the doctrine that it would be persumed, from a silent record, that no warning had been given and that the accusatory stage had been reached, was based on the practical fact that trial counsel could not have been expected to anticipate the rule of that case nor its implementation in Dorado. But where, as here, no anticipation was required, we cannot assume that there has been a violation of rights, but rather that counsel did not pursue inquiry into the facts surrounding the questioning of his clients because he felt that it would not develop any information which would assist him in his attempt to rely on the Escobedo-Dorado rule (People v. De La Paz (1965) 237 Cal.App.2d 81, 46 Cal.Rptr. 614;3 People v. Guastella (1965) 234 Cal.App.2d 635, 44 Cal.Rptr. 678).4

The judgments are affirmed.


1.  For example, the testimony was that the pharmacist who had filled the prescription could not identify the purchaser. There is an equal lack of detail about the fact of forgery. The total evidence on that point was a stipulation ‘* * * that Dr. Dahlquist is associated with the Harriman Jones Medical Clinic and Hospital, 211 Cherry Avenue, Long Beach 2 and that he uses the type of prescription blank which is People's Exhibit 1, but he did not fill out People's Exhibit 1, did not sign People's Exhibit 1 or authorize anyone else to sign People's Exhibit 1 on his behalf,’ and that the doctor, if called, would so testify. We do not know how much of this the officers had learned, or from whom, when defendants were questioned and how much was developed later.

2.  (1964) 61 A.C. 892, 40 Cal.Rptr. 264, 394 P.2d 952.

3.  237 A.C.A. 87, 46 Cal.Rptr. 614.

4.  234 A.C.A. 765, 44 Cal.Rptr. 678.

KINGSLEY, Justice.

FILES, P. J., and JEFFERSON, J., concur.