PEOPLE v. RIVERS

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District Court of Appeal, Fourth District, Division 1, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. John RIVERS, Defendant and Appellant.

Cr. 1467.

Decided: July 26, 1966

Allan L. Rudick, San Diego, under appointment by the District Court of Appeal, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and C. Anthony Collins, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

Defendant, with two others, was convicted of first degree robbery (Pen.Code § 211) July 1, 1960.   He admitted a prior felony.   He appealed in pro per.;   on his own request the appeal was dismissed January 5, 1961.   Pursuant to directive of the Supreme Court of California, the remittitur was recalled, the order of dismissal vacated ,the appeal reinstated, and counsel was appointed to represent defendant (citing Douglas v. People of State of California, 372 U.S. 353, 88 S.Ct. 814, 9 L.Ed.2d 811;  In re Martin, 58 Cal.2d 133, 23 Cal.Rptr. 167 373 P.2d 103).

Two person robbed a food market in San Diego March 21, 1960;  a witness testified defendant's car was in the area at the time, with three persons in it.   Evidence of a conversation between defendant and a police officer, occurring after defendant was arrested, was introduced in which defendant denied his guilt and stated:  He was with the co-defendants in his automobile at the time and place of the robbery, the other two talked about their robberies, past and future;  while defendant stayed in the car he thought they went into the market to buy some wine;  they returned;  later he saw them with a handful of money, and guns;  he fled to Los Angeles to escape arrest.

The sole question presented by defendant is whether the court committed prejudicial error in allowing into evidence the conversation between defendant and the officer, without defendant having been advised of his constitutional rights under Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 and People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361.   The answer is “No” under the recent United States Supreme Court decision, Johnson v. New Jersey, 384 U.S. 719, 86 S.cT. 1772, 16 L.Ed.2d 882 in which the court stated:

“We hold that Escobedo affects only those cases in which the trial began after June 22, 1964, the date of that decision.   We hold further that Miranda [Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694] applies only to cases in which the trial began after the date of our decision one week ago [June 13, 1966].  The convictions assailed here were obtained at trials completed long before Escobedo and Miranda were rendered, and the rulings in those cases are therefore inapplicable to the present proceeding.”   (384 U.S. 719, 721, 86 S.Ct. 1772, 1775.)

Thus, the ruling of Escobedo, Miranda and Dorado are inapplicable in this case, the trial of which had been completed in July 1960.

Judgment affirmed.

GERALD BROWN, Presiding Justice.

COUGHLIN and WHELAN, JJ., concur.

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