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District Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Florence Ada ARNOLD, Defendant and Appellant.

Cr. 3756.

Decided: November 16, 1965

Peter Fetros, Sacramento, Court Appointed, for appellant. Thomas C. Lynch, Atty. Gen., by Doris Maier, Asst. Atty. Gen., and Raymond M. Momboisse, and Daniel Kremer, Deputy Attys. Gen., Sacramento, for respondent.

On July 14, 1964, the Grand Jury of Sacramento County returned an indictment charging appellant with the crime of manslaughter, in that on the 20th of May 1964 she had wilfully, unlawfully, feloniously and without malice killed Sandra Kay Arnold. Sandra was the 13-year-old daughter of appellant. After a divorce appellant was given the legal and physical custody of the child. After a trial a jury found appellant guilty as charged. Probation was granted by the court on condition that appellant be confined in jail for a period of one year and that should any minor child in her care become ill she was to report to the probation officer and call a medical doctor.

Appellant contends that the trial court committed prejudicial error by admitting into evidence over her objection incriminating statements elicited in June 4, 1964, by the assistant district attorney. Appellant further contends that the court committed prejudicial error in admitting into evidence a photograph of the decedent and in giving certain instructions to the jury based on Penal Code sections 270 and 272 and Welfare & Institutions Code section 600.

Sandra's death occurred without medical attendance and consequently under section 10250 of the Health & Safety Code, and other applicable sections, the coroner investigated the death. Nine hours after the time of death a coroner's autopsy surgeon performed an autopsy upon the body of the child. He found that death had been caused by an obstruction, amounting to a complete-blockage of the small intestine at the point where it empties into the large intestine. The obstruction was a ball of densely packed human hair. There was a larger ball of human hair in the child's stomach. It appeared that Sandra had had a habit of chewing her hair and that probably she had ingested, over a considerable time, a sufficient amount of hair to form the large ball found in her stomach, from which the surgeon theorized a part had broken off and passed down through the intestines to the point of blockage. Some preliminary investigation was made by deputy sheriffs, and on June 4, 15 days after the death, an assistant district attorney wrote to appellant requesting that she come into his office. There he interrogated her for about an hour and a half, recording the interview on tape. Over objection a transcription of the interview was read to the jury at the trial. The objections were based on a claim that appellant's constitutional rights had been violated in taking the statement without advising her of her right to have counsel present and to remain silent.

During an official investigation of a crime it may become the duty of the investigating officer to advise a suspect of his constitutional right to the aid of counsel and of his right to remain silent, and if that duty arises and is not performed confessions and incriminating statements thereafter obtained may not be used in evidence at the suspect's trial. This rule has been the subject of decisions throughout the nation. (Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.) In California the Supreme Court has rendered many opinions upon the subject. (People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361; People v. Stewart, 62 Cal.2d 571, 43 Cal.Rptr. 201, 400 P.2d 97; In re Spencer, 63 A.C. 418, 46 Cal.Rptr. 753, 406 P.2d 33; People v. Anderson, 63 A.C. 369, 46 Cal.Rptr. 763, 406 P.2d 43; People v. Cotter, 63 A.C. 404, 46 Cal.Rptr. 622, 405 P.2d 862; People v. Mathis, 63 A.C. 434, 46 Cal.Rptr. 785, 406 P.2d 65; People v. Price, 63 A.C. 388, 46 Cal.Rptr. 775, 406 P.2d 55.) This list could be greatly extended. As stated in Stewart, supra, 62 Cal.2d at page 577, 43 Cal.Rptr. at page 204, 400 P.2d at page 100: ‘The United States Supreme Court in Escobedo fixed the point at which a suspect is entitled to counsel as that at which ‘the process shifts from investigatory to accusatory—when its focus is on the accused and its purpose is to elicit a confession * * *.’ (378 U.S. at p. 492, 84 S.Ct. at p. 1766). The court also characterized the time when a person needs the ‘guiding hand of counsel’ as that when the ‘investigation had ceased to be a general investigation of ‘an unsolved crime”; at that time the defendant ‘had become the accused, the the purpose of the interrogation was to ‘get him’ to confess his guilt despite his constitutional right not to do so.' (Id. at pp. 485, 486, 84 S.Ct. at p. 1762.)'

In determining whether the critical point has been reached, we are admonished by our Supreme Court in Stewart, supra (at p. 579, 43 Cal.Rptr. at p. 206, 400 P.2d at p. 102) that ‘Whatever may be the subjective intent of the interrogators, we must, in order to determine if the police are carrying out a ‘process of interrogations that lends itself to eliciting incriminating statements' (Escobedo v. State of Illinois, supra, 378 U.S. at p. 491, 84 S.Ct. at p. 1765), analyze the total situation which envelops the questioning by considering such factors as the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police and all other relevant circumstances.

‘As some writers have suggested, ‘An objective test is * * * likely for the new American rule, for it is noteworthy that the question of ‘purpose to elicit a confession’ may be more readily determined from the objective evidence—such as the nature of the questions and accusations put to defendant and the length of the interrogation—than question whether the police had decided to charge the defendant.''

We now turn to a consideration of relevant circumstances. It is the duty of one having legal and physical custody of a minor child to furnish it with necessary medical aid in event of illness, and if such a person neglects to furnish such aid and as a proximate cause of that failure death occurs, involuntary manslaughter has been committed. It is clear from the record that when the questioned interrogations took place in the office of the district attorney, the interrogator knew of the autopsy surgeon's report fixing the cause of death; that the death had been unattended by a medical doctor; that appellant was the person required to give the child necessary medical aid; that she had not done so; that the condition of the child indicating the necessity, or at least the advisability, of medical aid was of considerable duration; and that if, when the duty arose to furnish such aid, it had been furnished death could, in all probability, have been avoided and a complete recovery through surgery obtained. Of course, the interrogator knew what crime had been committed since he was an assistant district attorney of Sacramento County to whom the matter had been referred after some investigation by the sheriff's deputies and after the autopsy surgeon's report of his investigation and analysis of the cause of death. There was only one person who could have been guilty of the crime and that was appellant who had custody of the minor, and hence when he sent for appellant to come in for interrogation the crime was in no sense an ‘unsolved crime.’ The fact and nature of the crime was known and the perpetrator certain. It cannot be doubted from the record that the purpose of the interrogation was to elicit incriminating statements from appellant and a confession, if possible. It would be difficult to meet the technical definition of a confession in a case such as this where the issues of negligence and of proximate cause were in the case. But though the incriminating statements introduced in evidence may not have technically amounted to a confession, they were tantamount to a confession so far as the jury was concerned. Turning now to the form of interrogation, we find from the outset to the conclusion that the purpose of the interrogator is manifest. Having established the relationship of appellant to Sandra and the fact of appellant's legal and physical custody of the child, the interrogator proceeded to question appellant about Sandra's illness. We append parts of the interrogation read into complaining about not feeling well? * * * complaining about not feeing well? * * * A. It would have been the 2nd of May, and she had diarrhea, and then on the 3rd she was feeling better * * *, then Monday and Tuesday she didn't go to school, and Wednesday she went back to school. She was feeling pretty good that day. And then on Thursday morning, after I had went to work, Shirley, my youngest daughter, called me and told me she was skck and vomiting. Q. This was Thursday, the 7th of May? A. Right. A. And what did you do then? A. Well, as soon as I could, I went home. Q. And Sandra was there when you got home? A. Yes. Q. And what was the matter with her? Q. Well, she said she was sick to her stomach. Q. Mr. Hales [a deputy sheriff] came out to talk to you at your home, isn't that correct? A. Yes, right. Q. And during the course of that conversation you mentioned that May 7th was the time, was the first time she started getting bad sick—isn't that how you put it? A. Yes, that's right. * * * Q. And did she vomit on that occasion after you came home? A. [Y]es. Q. What kind of substance was she vomiting? A. Well, it was green. * * * Q. And on previous occasions when she vomited, did she vomit the same green substance? * * * A. No. Q. Did you ever see her vomit this green substance before? A. No, never. Q. I suppose you became rather alarmed at that, didn't you? A. Well, I kind of wondered about it, but like I told him, we used to have bilious spells when I was growing up and it never amounted to anything. * * * Q. What time of day did you come home, the first day that she came home from school? A. Well, possibly around nine or nine-thirty. * * * Q. And she was—would you say she was quite violently ill when you first got home? A. Well, no, she was just sick at her stomach. Q. Was she vomiting quite continuously during that morning? A. No. * * * Q. And then on into the evening, did she continue to have this upset stomach? A. Yes. But she would—there'd be longer periods of time that she wouldn't vomit. * * * Q. [Y]ou took her off solids then on the 7th? A. Yes. Q. On into the evening on that first day when the illness was, as you described, bad, I take it that before that time she had some kind of stomach trouble or wasn't feeling quite right? A. Yes * * *. Q. She had never vomited this green bile substance? A. No. never. Q. Is that the point, Mrs. Arnold, where you felt that prayer might be called for at that time?1 A. Yes. Q. At that time did you have occasion to call some of the elders or other congregation, members of the church? A. It was on Friday we called them. * * * Q. [Y]ou didn't feel that prayer was called for on the 7th when she was vomiting the green substance and where she was complaining of pains in her stomach and her side? A. She wasn't that bad. * * * Q. When was the first time during Sandra's illness that you felt this alarm, that you felt enough worry that you thought that prayer—I assume that you were praying yourself? A. Yes. Q. When did you start your prayer? A. Well, as soon as I found out that she was sick, I always do. Q. And it is safe to say that on other occasions when members of your family get some rather, what you feel are minor illnesses such as the plain old flu bug that we are all subject to, and bad colds or headaches or something of that nature, that you would limit yourself to praying for your own family? A. Yes. Q. When was it that you felt this illness was severe enough that you should call in the Lord for further assistance? A. Well, it was possibly the 12th of May. Q. And what was it at that time, Mrs. Arnold, that alarmed you to that extent that you thought you'd better get some outside help? A. Well, she asked for the Elders to come pray for her. She asked for them.

‘Q. Other than not believing in medical care for the ill, and believing in Divine Healing and laying hands upon the sick and praying for them, would you say that there are any other aspects of your religion that are somewhat different than the majority of the beliefs? A. No. Go over that again. Q. Well, it is true, isn't it, that your religion does not believe in calling doctors when people are sick. A. Yes. Q. And what is the reason for that? Can you give me a little background on that, please? A. Well, we're supposed to trust in God in everything we do, and He made our bodies, and He's able to take care of our bodies and heal us. Q. If one of your children fell down and broke a leg, would it be against your religion to have the leg set? A. Well, I—it would be against mine. Q. So that you would—if you had your way about it, you would rather not have the leg set? A. I would have it set, but there's members in our church that does that, but I wouldn't condemn anyone that did go and have it set. Q. Right now I am talking about your personal beliefs. A. My personal belief is that I know there is some that have set, in our church they've set limbs and that they have growed straight. * * * Q. Do you realize that if there were a bowel obstruction located in a little girl's intestines, that she had a complete blockage, do you think it would require some sort of human physical act to remove that obstruction? A. No, I don't. Q. What is your belief on that? A. I know that God could move it, if it was His will to move it. Q. And in this particular case, then, it's your belief that it was not His will to move it? A. Right. Q. It's His will that the child die? A. It wasn't my will. Q. Well, I'm sure of that ma'am, I'm not questioning the strength of your beliefs at all. I know that you are sincere in your beliefs. Now, apparently you personally wouldn't ask other members of your church to take up their time and so forth and come in and pray for members of your family unless you felt that they were in rather serious condition. Isn't that true? A. Right. Q. And it was about on the 12th that you began to feel that Sandra's condition was somewhat serious? A. Yes. * * * Q. What was there about her condition on the 12th that made you feel that she had better get some outside help? * * * A. Well, she asked for the Elders. Q. And knowing her personality better than anyone else, I suppose, being her mother, you felt that she must be feeling very, very ill to ask for that? A. Yes. * * * Q. And why did you feel that it was necessary, other than the fact that Sandra had asked you? A. Well, it is our belief that [it] is written in the Word of God for us to call for the Elders of the church and let them pray over them. Q. Under what circumstances, though, would you go [to] the extent of bringing someone up from Tulare to do this? A. It says that ‘He that is sick, let him call for the—’ yes—‘He that is sick, let him call for the Elders of the church and let them pray over him and anoint him with oil in the name of the Lord, and the Lord shall raise him up.’ * * * Q. What was it on this occasion made you call them [elders] up from Tulare? A. Well, we had done everything else. We had called the church members here to pray for her, and we had fasted for her, and we had done everything we knew to do. * * * Q. This was before the 12th that all this was done for her? You did take measures before the 12th to help her? A. Yes. Q. To get some outside help from other congregation members. A. Yes. Q. Then prior to the 12th, you were quite unusually concerned about her sickness? A. Quite. * * * Q. From the period of the 7th of May through the 12th of May, did the possibility ever enter your mind that Sandra might die? A. Yes, it did, but I didn't think she would. * * * A. I had faith that God would heal her. Q. What was it about her actions, about her looks, about her entire personality that made you feel that she was in danger of losing her life during that period from the 7th to the 12th of May? A. Well, I just don't—I don't remember, other than I was concerned about her not eating like she should, and that she did still vomit. Q. Well, you said that during the periof from the 7th to the 12th of May that you, as a mother, were in fear of her life * * *. A. At times I was. Q. Can you give me any indication of what made you think that her life was in danger during that period? Was it that she was so ill? A. It was because she was so ill. That is all that I can say.'

After it was established that the child had lost weight, this question was asked: ‘Q. At any rate * * * didn't that alarm you a great deal * * *. A. It did. Q. Weren't you in fear of her life? A. Well, I was, but I still felt that God would heal her. Q. In other words, all during this period, to some degree or another, you felt that the child was sick enough that she might die, but you placed your trust in the Lord, is that the idea? A. Yes. * * * Q. * * * Your daughter was very, very sick, and you knew she was very sick. Isn't that true? A. Yes. Q. And you had rather grave concern for her, is that right? A. Yes. Q. And you were more concerned for her than you have ever been for any member of your family. A. Yes. Q. And you thought that she might die. A. Yes. * * * Q. Is it safe to say that no matter how ill a member of your family appeared to be to you, that you would not call for medical aid. A. Right. Q. And is it also fair to say that Sandra was—did push you to the breaking point during this illness? That is, if you wouldn't call a doctor for her, seeing how sick she was, that you couldn't imagine anybody being too much sicker than that? A. (No reply.) Q. Didn't this push your belief pretty much up to—as much as its ever been pushed in your life? A. Well, * * * I never thought that I would call a doctor, if that's what you mean. Q. I'm saying, didn't this illness of Sandra's test your belief almost to its breaking point? A. Yes. Not to the breaking point, because I still had faith that God would heal. I still had it clear up until the last, that there would be some kind of a miracle, that God would heal her. Q. But you did feel that it would require a miracle? A. Yes. * * * Q. I'll be honest with you, what I'm trying to elicit from you, if it's true—only if it's true—is that during the entire period of this illness you had serious worry about your daughter's life, that you knew she was in serious danger of losing her life, if that is true, only if you know if that is true, Mrs. Arnold. And I'm just taking it that if you are as strong a believer as you say, you'll tell the truth. A. Well, like I said before, we called the Elders, see, and then that evening before she passed away, because I thought it was serious enough that we should call them. Q. You thought it was serious enough that she might die if the Lord didn't take a hand? A. Yes.’

There is much more that might be appended but enough has been quoted to show that, with knowledge that the crime charged had been committed, with knowledge that appellant had committed it, the interrogator, acting as an official, sent for this woman to come into his office with the sole purpose of obtaining either a confession or incriminating statements, in order that out of her own mouth she might be convicted; and that the prosecution deemed the purpose of the interrogation had been well achieved is the fact appearing from the record that very little other evidence of her conduct was introduced by the prosecution.

It is conceded that at no time did anyone on the side of the prosecution, including the interrogator who took the statement inform appellant of her constitutional right to have counsel and to remain silent, and there is no claim of waiver. The following appears: ‘Q. * * * Had you previously * * * been questioned by the police, and by any investigators from the District Attorney? A. Yes, I had. Q. Did anyone tell you before this statement was taken that they were considering filing a felony manslaughter charge against you? A. No, they didn't. Q. Did anyone tell you you had a right to contact an attorney? A. No one told me anything.’

Appellant testified further that while she had received no threats she thought when asked to come to the prosecutor's office that she had to do so and would not otherwise have come.

We are convinced that it was error to permit appellant's statement to be read into evidence; that the error was prejudicial; that had this not been done it is highly probable that a result more favorable to appellant would have been reached; and that the judgment should be reversed.

Respondent argues that the accusatory stage of investigation had not been reached because appellant had not been taken into custody. We do not agree. Though custody, as indicated in Stewart, is a powerful circumstance pointing to a shift from investigatory to accusatory, the accusatory stage may be reached without custody. As said in Escobedo, supra (378 U.S. p. 492, 84 S.Ct. p. 1766), ‘when the process shifts from investigatory to accusatory—when its focus is on the accused and its purpose is to elicit a confession—our adversary system begins to operate * * *.’

Appellant took the stand in her own defense. On cross-examination she did not substantially deny that she sought to save her child through faith and by following what she believed to be divine admonition. She testified, as did others, as to the constant care she gave her child, using ‘home remedies' and tending the child day and night. It is argued that her testimony left her statement undisputed in substance and hence, even though erroneously admitted, the error was rendered nonprejudicial within the constitutional rule. Again we do not agree. Once the statement was in she was impelled to take the stand and seek to minimize the impact of the statement on the jury in any way left to her. Under the circumstances of this case, her testimony leaves us convinced that we must reverse.

In view of the conclusion we have reached we think it unnecessary to discuss the other assignments of error.

The judgment is reversed.

I concur. The portions of the transcript of defendant's statement which Justice Van Dyke has included in the opinion leave no doubt that this was an interrogation after suspicion had focused upon defendant; that the interrogator knew a crime had been committed; and that defendant had committed it. The sole purpose of the interrogation was to ‘button up’ the case with a confession by defendant of all of her acts—which the interrogator knew but the defendant did not—would establish guilt. True, she was not formally taken into custody until afterwards; but under the circumstances of this case, to take her in custody was but an incident to be accomplished at any time at the will of the authorities. Mrs. Arnold was not going anywhere.

If arrest—the taking in custody—is to be the sine qua non of the application of the Escobedo-Dorado rule then, whenever (as in this case) the authorities have a prime spotlighted suspect whose position is such that an escape is unlikely, the formality of arrest will simply be deferred until the process of interrogation designed to elicit a confession has been completed.

The salutary purpose of the rule should not be thus subject to emasculation. Observance of Escobedo-Dorado should not be ritualistic. People v. Stewart, 62 Cal.2d 571, 43 Cal.Rptr. 201, 400 P.2d 97, should not be misread. I would emphasize one sentence in Justice Tobriner's opinion which should not be erased therefrom. He states (on p. 578, 43 Cal.Rptr. on p. 205, 400 P.2d on p. 101): ‘* * * Indeed, as the court said in a case which, although based upon the McNabb-Mallory rule, cites Escobedo, ‘Ordinarily, arrest is the culmination, not the beginning, of police investigation.’ (Greenwell v. United States (D.C.Cir. 1964) [119 U.S.App.D.C. 43] 336 F.2d 962, 966.)' (Emphasis supplied.)

I dissent:

Since Dorado the Supreme Court has repeatedly confirmed that:

‘Confessions are inadmissible if they were obtained when ‘(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 waived these rights.’ (People v. Dorado, 62 Cal.2d 338, 353, 42 Cal.Rptr. 169, 179, 398 P.2d 361, 371; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.)' (People v. Polk, 63 A.C. 461, 464–465, 47 Cal.Rptr. 1, 3, 406 P.2d 641, 643.) (Emphasis added.)

People v. Stewart, 62 Cal.2d 571, 577, 43 Cal.Rptr. 201, 204, 400 P.2d 97, 100, confirms the Dorado holding above related and discusses with some particularity the processes of investigation, accusation, custody and arrest, holding that ‘[n]ormally ‘the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect’ * * * at that point when the police officers place that suspect under arrest.' But Escobedo requires that, for the accusatory stage to be reached, interrogations to elicit incriminating statements must have been carried on and that such interrogations may be undertaken either before or after arrest.

In Stewart, supra, at pages 577–578, 43 Cal.Rptr. at page 205, 400 P.2d at page 101, the defendant had been arrested prior to interrogation, and the court held:

‘We believe that the arrest encompasses two of the circumstances which produced the accusatory stages in the Escobedo and Dorado cases: (1) the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, and (2) the suspect is in custody.’ After the court stated that ‘[a]n arrest fulfills the first requirement that the investigation has begun to focus on a particular suspect,’ it then held ‘[t]he arrest includes ‘custody,’ the second condition present in Escobedo and Dorado.' (Emphasis added.)

As I read Stewart, the defendant there was entitled to counsel under the holding in Escobedo because all of the conditions required had been fulfilled, that is: ‘Defendant was not only under arrest at the time he confessed but had been in custody for five days and had been interrogated daily. * * * Thus, prior to his confession, the defendant was entitled to counsel under the Escobedo case, for the ‘accusatory’ stage had been reached.' (People v. Stewart, supra, pp. 579–580, 43 Cal.Rptr. p. 206, 400 P.2d p. 102.)

Again, in People v. Price, 63 A.C. 388, 46 Cal.Rptr. 775, 406 P.2d 55, the court, in considering the contention of defendant that certain of his statements testified to by three court appointed psychiatrists fall within the proscription of Dorado, held that one of the four essential requirements to the finding of inadmissibility of the statements in Dorado was the fact that the suspect was in custody. In Price the court said (at p. 396, 46 Cal.Rptr. at p. 780, 406 P.2d at p. 60):

‘Our decision in Dorado cannot be construed as a general prohibition against the admission into evidence of incriminating statements made by one suspected or accused of a crime upon a prosecution therefor. The prohibition is directed against procedures which deny to a suspect or an accused due process of law: “So long as the methods used comply with due process standards it is in the public interest for the police to encourage confessions and admissions during interrogation.” (People v. Dorado, supra, 62 A.C. at p. [354], 366, 42 Cal.Rptr. [169] at p. 179, 398 P.2d [361] at p. 371, quoting from People v. Garner, 57 Cal.2d 135, 164, 18 Cal.Rptr. 40, 367 P.2d 680.)’

I disagree with the majority opinion that the accusatory stage may be reached, under the case law of this state, absent the requirements that the defendant was either under arrest or in custody.

I would affirm the judgment of conviction.


1.  It appears that appellant was a member of the Church of the First Born, a religious group that believes in faith healing, basing their belief in part upon the biblical text found in James, 5: 14 ‘Is any sick among you? let him call for the elders of the church; and let them pray over him, anointing him with oil in the name of the Lord: 15 ‘And the prayer of faith shall save the sick, and the Lord shall raise him up; and if he have committed sins, they shall be forgiven him.’

VAN DYKE, Justice pro tem.