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Court of Appeal, Fourth District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Peter Paul FIORITTO, Defendant and Appellant.

Civ. 2762.

Decided: December 14, 1967

Donald F. Powell, Riverside, by appointment of this Court of Appeal, for defendant and appellant. Thomas C. Lynch, Atty. Gen., Elizabeth Miller, and Mark W. Jordan, Deputy Attys. Gen., for plaintiff and respondent.


Defendant was convicted of burglarizing Toelle's Market in Mira Loma in the early morning of August 7, 1966. Jointly participating with him were two juveniles, Phillips and Leavings. They broke in and took three 30-carton boxes of cigarettes and about $125 in money from the market.

They then drove to a bowling alley where they sold some of the cigarettes to passersby at $1.00 a carton. Three witnesses told of buying cigarettes and seeing the boxes in defendant's car. One of them, a Mr. Johnson, asked defendant and his companions where they got the cigarettes and defendant told him they took them from a store.

At the trial Phillips and Leaving testified to the details of the burglary and defendant's participation. No evidence was offered by the defense.

The evidence need not be further detailed as the only question concerns a statement made by defendant to police officers put in evidence over his objection. The facts in this connection are that defendant, while in the interview room of the Ontario Police Department, was in the company of Detective Robards, defendant's parole officer, one McGee, and another detective. Detective Robards fully advised defendant of his rights by reading to him a written formula advisement of rights1 and asked him if he desired to sign a printed waiver of those rights and talk, to which there was a negative response.

A few minutes later the officers brought in the juveniles, Leavings and Phillips, who visited with and confronted defendant and stated that he was involved and that they had confessed; also there was an argument over some money which the juveniles claimed to have loaned to defendant. After the juveniles left, Detective Robards again fully advised defendant of his rights and again asked him if he wished to sign the waiver and talk, to which defendant answered in the affirmative. Defendant then signed the waiver1 and was questioned in the presence of a stenographer, Lillian Nesbitt, who took down and transcribed the statement which was introduced in evidence at the trial.2 There was also some con versation before the signing of the waiver about psychiatric help, defendant indicating that he felt he needed such help, and an officer stating that possibly on the ‘state level’ he could get such aid.

Defendant's contention that the confession should not have been admitted is based on pronouncements in Miranda v. State of Arizona, 384 U.S. 436, 473–474, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694, we find this language:

‘One warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.’

Applying this statement to the case at bench, we find first, interrogation had never commenced; the conversations were in the preliminary stages of advising defendant of his rights and ascertaining whether he wished to talk. We do not believe that because a defendant once indicates unwillingness to talk with police officers they are thereafter finally precluded from mentioning the subject in any way however innocuously and properly. A defendant's first declining to discuss his case with police officers should be seriously considered and may increase the burden on the People of showing his statement made soon thereafter was voluntary but should not, as a matter of law, be held exclusionary per se. Supporting this view is the following, also from Miranda, supra, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628:

‘If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.’

We hold the trial court properly determined that the People sustained their heavy burden of showing that defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.

The only witness called in the trial to the circumstances of the confession was Detective Robards. He was examined first by the district attorney and then before the statement was admitted defense counsel was allowed full questioning on voir dire. The judge with the Miranda rules in mind determined the confession should be admitted. Although several witnesses could have been produced who were either present while the statement was being taken or immediately before, none was called by defendant. If there had been any pressure, persuasion, undue persistence, or improper conduct of any kind by the officers, or if defendant had appeared nervous, frightened, tired, sick or in any way adversely affected, surely someone from among the two juveniles, the probation officer, the female stenographer and the other detective could have been called by defendant to testify.

The whole transaction of bringing in the juveniles, allowing them to confront and converse with defendant, removing them and procuring defendant's signed consent to be questioned only took 15 minutes. Thus it is most unlikely there could have been factors of persistence, wheedling, undue influence, coaxing or fatigue, which brought about defendant's statement. The defendant before answering the officers was fully advised a second time of his rights, after which he read and signed the document set out in footnote 1.

The transcribed statement evidences a third advisement to defendant of its rights and it shows internal evidence of its voluntary nature. Each question was answered directly, succinctly, with apparent understanding and without necessity for repetition. The questions and answers are all clear and there is no sign of badgering, persistence or pressure of any kind on the part of the officer, nor of hesitation, uncertainty or reluctance on the part of defendant.

There is no intimation in the case at bench that there were any threats nor can it be said defendant was tricked or cajoled. Confronting the defendant with his companions in crime and allowing him to hear their version cannot be characterized as a trick. Quite the contrary-the officers were being honest and straightforward with defendant to allow him to hear first hand the versions of the event by the other participants to enable him to chart his own strategy and course of action in the light thereof. There is no suggestion that the juveniles made false statements and it is not a situation where the police officers made a false representation to the defendant that the others had confessed, whereas in fact, they had not.

‘Cajole’ is defined as follows: ‘To deceive with, or persuade by, artful flattery, specious promises, or the like; to wheedle; coax.’ (Webster's New Collegiate Dictionary, G. & C. Meriam Co.) The evidence indicates nothing that would be within the definition of cajoled.

Finally, we note that defendant was a parolee, from which it may be inferred that he had some sophistication in the field of law enforcement and his rights as a defendant in a criminal action, and that the environment where the questioning occurred was not altogether strange to him.

The judgment of conviction is affirmed.



1.  ‘SPECIFIC WARNING‘1. You have the right to remain silent.2. Anything you say can and will be used against you in a court of law.3. You have the right to talk to a lawyer and have him present with you while you are being questioned.4. If you cannot afford to hire a lawyer one will be appointed to represent you before any questioning, if you wish one.WAIVER5. Do you understand each of these rights I have explained to you?YES6. Having these rights in mind, do you wish to talk to us now?NODated 8–11–66The foregoing was read and fully explained to Peter Fioritto on 8–11–66 at the Ontario P.D. 2:25 P.M. By O.N. Robards #146 (signature of officer(s)The above is true Refused to sign (signature of Person to be Questioned.)'

2.  The pertinent portions of the transcribed statement are as follows:‘Q: Have you been advised of your right to remain silent and your right to an attorney and that anything you say could be used against you in case of prosecution and that if you can't afford an attorney the County will provide one?A: Yes.‘Q: Did you sign a waiver to this effect?A: Yes.‘Q: What is your full name?A: Peter Paul Fioritto.‘Q: How old are you and what is your birth date?A: Nineteen; my birth date is April 4, 1947.‘Q: What is your address?A: 1503 W. Berkeley Court, Ontario.‘Q: What is your phone number?A: Yu 6–7724.‘Q: Do you know why you are here at the Ontario Police Department?A: Yes.‘Q: Would you tell us why?A: For burglarizing a grocery store.‘Q: Where was this grocery store located?A: Etiwanda Avenue in Mira Loma.‘Q: When did this take place?A: Saturday night.‘Q: Approximately what time?A: I don't know.‘Q: During the dark hours?A: Yes.‘Q: Who was with you at the time of this burglary?A: Mike Levings and Bill Phillips.‘Q: Whose vehicle did you use?A: Mine.‘Q: What kind of car; describe it?A: A '54 Chevrolet; 4-door; dark blue top and light blue bottom.‘Q: Did you drive this car?A: Yes.‘Q: Whose idea was it to burglarize this store?A: Mike; and he wanted to do this about three days before that but we didn't.‘Q: Did he shoe [sic] you the way to this store?A: Yes.‘Q: In your own words, after arriving at the store, tell us what happened?A: We parked across the street from the store and we walked around to the back. Mike busted a window, went through the window, then opened the door on the side and he let us in from the side door. Then we went to the front of the store and Mike found some money in a drawer and all of us picked up cigarettes and Mike had the money.‘Q: Did you pack up the cigarettes before leaving?A: They were in a box.‘Q: A big carton?A: Yes.‘Q: How much money did you get?A: I don't know.‘Q: What was your share?A: Abort $40.‘Q: Did you take any cigars?A: No.‘Q: The only other merchandise was Cigarettes?A: Yes.‘Q: How much money did Mike get?A: I don't know.‘Q: How much did Bill get?A: I guess we all had about the same. We had more after we sold the cigarettes.‘Q: Was the merchandise loaded in your car?A: Yes.‘Q: In the trunk?A: Yes.‘Q: Then where did you go after leaving that area?A: Back to Ontario; to a gas station, got gas and split up the money.‘Q: What did the three of you do?A: Went to the Bolium.‘Q: In Montclair?A: Yes.‘Q: What happened there?A: We sold the cigarettes there.‘Q: You sold the stolen cigarettes?A: Yes.‘Q: Who to?A: Just people coming out.‘Q: What did you sell them for?A: $1.00 a carton.‘Q: How many would you say you sold at this time?A: Around 30 cartons.‘Q: What happened to this money?A: We split it up, too.‘Q: How many cartons of cigarettes did you take from the burglary?A: There was maybe 50.‘Q: What happened to the other 20 cartons?A: We sold them all to one guy—a colored guy, did, who lived on Ralston Street.‘Q: Mr. Cotton you mentioned?A: No, just some kid. Bill wasn't there; me and Mike sold them.‘Q: How much did you get?A: Six Dollars.‘Q: Do you know the boy's name?A: I don't know his name.‘Q: Where does he live?A: On Ralston.‘Q: Where?A: I am not sure. We talked to him on Ralston and then talked to him later.‘Q: Does any of the guys know him?A: I think Mike does.‘Q: Was this the same night?A: No, it was the next day.‘Q: Sunday?A: Yes, Sunday.‘Q: Were you implicated any way in other jobs in that area—at a previous time were you connected with any burglary in another establishment in that atea?A: No.‘* * *‘Q: Have we used any force or violence on you to give us this statement?A: No.‘Q: Have we made any promises of reward or immunity from prosecution to give us this statement?A: No.‘Q: Are the statements you have given us true and correct to the best of your knowledge?A: Yes.‘Q: Do you realize this statement could be used against you in case of prosecution?A: Yes.‘Q: After you have read this statement would you be willing to sign same?A: Yes.'

THOMPSON, Associate Justice pro tem.* FN* Appointment by the Chairman of the Judicial Council.

KERRIGAN, Acting P. J., and TAMURA, J., concur.

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