PEOPLE v. LEVEL

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

The PEOPLE, Plaintiff and Respondent, v. Willie Edward LEVEL, Defendant and Appellant.

Cr. 34398.

Decided: March 30, 1981

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Joseph Levine, Deputy State Public Defender, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.

INTRODUCTION

Defendant Willie Edward Level (hereinafter defendant and/or Level) appeals from a judgment of conviction of second degree murder following a jury trial. He seeks a reversal per se on the ground that his taped confession of the murder, which was admitted into evidence, was obtained under conditions violative of his Miranda1 rights.

PROCEDURAL HISTORY

On December 19, 1977, by way of an information defendant was charged with the murder of Frances Lorine Brown on November 15, 1977, in violation of Penal Code section 187.2

On December 21, 1977, a public defender was appointed, the defendant was arraigned and pled not guilty.

On February 28, 1978, following a hearing, defendant's motion to suppress pursuant to section 1538.5 as evidence (1) his jacket seized from the trunk of his car; (2) the clothing which he was wearing at the time of his arrest; (3) blood and hair samples taken from defendant; and (4) a taped confession obtained from defendant was denied by Superior Court Judge P. R. Borton in Kern County.

On March 22, 1978, defendant's motion for a change of venue was denied by Superior Court Judge John D. Jelletich.

On August 24, 1978, Superior Court Judge Gerald K. Davis ordered the cause transferred to Ventura County for trial following an order from the Court of Appeal, Fifth District (pursuant to a writ filed in the appellate court by defendant), directing the Kern County Superior Court to grant defendant's motion for a change of venue.

On November 7, 1978, Presiding Judge Jerome H. Berenson of the Superior Court of Ventura County assigned the case for pretrial and trial to Superior Court Judge Bruce A. Thompson after the defendant had exercised a challenge pursuant to section 170.6 to an initially assigned judge.

On November 21, 1978, following four days of pretrial motions and jury selection, the trial court empaneled the jury and denied defendant's renewed motion to suppress the confession tape (the subject of this appeal) pursuant to section 1538.5.

On December 15, 1978, the jury returned its verdict finding defendant guilty of murder in violation of section 187 as charged and fixed the degree as murder in the second degree. The jury further found that defendant used a deadly weapon during the commission of the murder, to wit: a metal table leg.

On January 11, 1979, the trial court denied defendant's motion for a new trial. One of the grounds advanced by defendant in support of his motion was that the court erred in admitting defendant's tape recorded confession into evidence since it was obtained by violating his Miranda rights. The defendant was sentenced to state prison for a total term of seven years.

On February 9, 1979, defendant filed his notice of appeal.

On February 28, 1980, a panel of this appellate court filed an opinion (People v. Level (1980) 102 Cal.App.3d 897, as mod. 103 Cal.App.3d 899, 162 Cal.Rptr. 682) reversing defendant Level's judgment of conviction on the ground that his Miranda rights had been violated. (See ibid., Hanson (Thaxton), J., dis.)

On April 30, 1980, the California Supreme Court filed its order denying respondent People's petition for a hearing whereupon California Attorney General George Deukmejian filed a petition for writ of certiorari with the United States Supreme Court on behalf of the People.

On December 3, 1980, the United States Supreme Court having granted the People's petition for writ of certiorari directed the following order to this court:

“ON CONSIDERATION WHEREOF [petition for writ of certiorari and response thereto] it was ordered and adjudged on November 3, 1980, by this Court that the judgment of the above court in this cause be vacated, and that this cause be remanded to the Court of Appeal of California, Second Appellate District, to consider whether its judgment is based upon federal or state constitutional grounds, or both. See California v. Krivda, 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45 (1972).3

NOW, THEREFORE, THE CAUSE IS REMANDED to you in order that such proceedings may be had in the said cause, in conformity with the judgment of this Court above stated, as accord with right and justice, and the Constitution and Laws of the United States, the said writ notwithstanding.” (California v. Level (1980) 449 U.S. 945, 101 S.Ct. 344, 66 L.Ed.2d 209.)

On February 24, 1981, the previous opinion of this court filed on February 28, 1980, having been ordered “vacated” and the cause “remanded” to this court, oral arguments were conducted, supplemental briefs having been furnished this court by the parties hereto.

The decision to reset the matter for oral argument and to request supplemental briefs was, in part, predicated on the fact that the original opinion in the case at bench had been “vacated” by the United States Supreme Court and that subsequent to the filing of our original opinion the California Supreme Court had taken definitive action in the case entitled In re Michael C. (1978) 21 Cal.3d 471, 146 Cal.Rptr. 358, 579 P.2d 7, following the reversal of that decision by the United States Supreme Court in Fare v. Michael C. (1979) 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197.

Further, it is clear when our original opinion in the instant case was “vacated” by the United States Supreme Court and the matter “remanded” to us that upon such a “remand” we are authorized to decide the issue anew so that “a new judgment may be entered.” (See Dixon v. Duffy (1952) 344 U.S. 143, 146, 73 S.Ct. 193, 194, 97 L.Ed. 153.) The California Supreme Court acknowledged its authority to “alter” an original opinion if it so desired after its original opinion is vacated and the matter remanded by the United States Supreme Court in the case of People v. Braeseke (1980) 28 Cal.3d 86, at page 87, 168 Cal.Rptr. 603, 618 P.2d 149. A fortiori, this reviewing court is clothed with the same authority by reason of the procedural posture of the case at bench as hereinbefore described.

Accordingly, supplemental briefs and reargument having been considered, our new opinion follows:

THE CASE

PROSECUTION EVIDENCE AT TIME OF TRIAL

Uncontradicted testimony at the trial of the case at bench disclosed that at about 6 p. m. on November 15, 1977, the female victim, Frances Lorine Brown (age 24), was bludgeoned to death in a parking lot at the Bakersfield College where she was attending evening classes in order to obtain her teaching credentials. A metal table leg was found near her body. A forensic pathologist who performed the autopsy for the coroner's office testified that she died of “skull fracture with laceration and contusion of the brain itself.” The lethal blow was delivered to the back of her head and she bled profusely.

The victim's husband, Jeffrey Brian Brown, who also attended evening classes at the College, was sitting in a vehicle nearby, saw his wife walking toward him smiling and a man following about six feet behind her. Her husband looked away momentarily to place some books back of the seat and then heard a thud and when he looked around he saw his wife bounce on the ground. He immediately exited his vehicle and saw the assailant dragging his wife toward another car. He yelled and the assailant dropped his wife and ran. Mr. Brown briefly pursued the assailant who ran away. The victim's books, purse and keys were strewn about and a metal table leg found on the ground was later identified by a student witness as the same one he earlier had seen the assailant carrying while following Mrs. Brown.

A student, prior to the attack, had observed the assailant following about 20 feet behind Mrs. Brown carrying a metal table leg and poking at the ground as he walked. He gave the police, who were immediately called to the scene, a description of the assailant and said he was wearing a letterman's jacket, maroon in color with white sleeves. Within 20 minutes of the assault, an officer who was canvassing the campus for a suspect stopped defendant Level because of his suspicious behavior and because he met the general description of the assailant supplied by witnesses. The defendant had fresh blood on his hands and spattered on his white tennis shoes. He gave the police written consent to search his car from which they recovered a letterman's jacket with fresh blood on the sleeves.

Expert testimony at the trial established that defendant's fingerprint was on the metal table leg used to bludgeon the victim and that traces of the metal from the table leg had transferred to defendant's hands. Expert testimony also established that the blood on defendant's tennis shoes and jacket was the same type as that of the deceased victim but not that of the defendant.

Defendant's Taped Confession

In addition to the foregoing the prosecution placed into evidence, over the objection of the defense, a tape recorded confession obtained by Officer Bradley C. Singleton from the defendant later the same evening of the murder—November 15, 1977. (This is the tape recorded confession which the defense sought to have suppressed as violating his Miranda rights at the pretrial hearing in Kern County on February 28, 1978, again on November 21, 1978, prior to the trial in Ventura County, and again raised as ground for defendant's motion for a new trial on January 11, 1979, and which is the subject of this appeal.)

Defendant's statements to Officer Singleton contained on the tape which was admitted into evidence and played to the jury during the trial were substantially as follows:

That he was at the Bakersfield College campus looking for a friend named Mylo and picked up a metal table leg which he found on campus; that while he was using it to hit at a piece of paper and walking toward the parking lot he saw the victim; that he started to follow her and said: “Hey. Do you have a few minutes?”; that his intention was to “get any information like her phone number or …” and that the victim said: “I don't have any time for any niggers” and walked away. The defendant stated that he “got mad as hell for what she said” and hit her with the metal table leg using it “like a bat”; that when he tried to drag her away “the guy jumped out from wherever he was, he came from somewhere and ran towards me” so he dropped the victim and ran away; that he went to his car and put his letterman's jacket in the trunk because he “didn't want anybody to see the jacket”; and when he went back into campus looking for his friend Mylo he was arrested by the police officer. When asked what defendant did with the table leg, he said: “I just dropped it, left it there.” When asked toward the end of the tape if “there [was] anything else that happened that we haven't asked you about?” the defendant answered, “Not that I can think of.” At the end of the tape the defendant apparently confirmed that he was read his rights and that he was not promised or threatened in any way and that he gave his statement freely and voluntarily.4

DEFENSE EVIDENCE AT TIME OF TRIAL

At the trial defendant Level attempted to establish self-defense and diminished capacity. He testified substantially in accordance with what he told his visitors as described in footnote 4, ante, absent the street vernacular. In addition he told the jury that within the hour before he arrived on campus he had consumed a quarter of a pint of 151 proof Bacardi rum with Coca Cola and he and a friend between them smoked “two joints of angel dust” and that he then smoked another joint of marijuana; that just before he struck the victim with the metal table leg he “saw her hand reach toward her purse” and “saw something in her hand, some shiny object”; and that he intended to hit her in the back but “because she ducked” he hit her in the head.

ISSUE

The determinative issue on appeal is whether or not the confession of defendant Level admitted into evidence which was tape recorded by Officer Singleton following the murder of Mrs. Brown on November 15, 1977, violated defendant's Miranda rights and those rights as they have been subsequently construed by either federal or California decisional law.

If the taped confession was obtained under conditions violative of defendant's Miranda rights under binding case law authority, reversal is mandated even though the error, as in the instant case, was harmless beyond a reasonable doubt under the compulsion of such California Supreme Court cases as People v. Pettingill (1978) 21 Cal.3d 231, 145 Cal.Rptr. 861, 578 P.2d 108; People v. Burton (1971) 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 193; In re Michael C., supra, 21 Cal.3d 471, 146 Cal.Rptr. 358, 579 P.2d 7.5

DISCUSSION

The only evidence that bears on the issue as to whether or not defendant Level's Miranda rights were violated is the testimony of one witness, Officer Singleton, who testified at the hearing on defendant's motion to suppress the tape recording which was conducted on February 21, 1978, in Bakersfield (Kern County). The defendant was present and represented by counsel but did not testify.

The record shows that the defendant was arrested on campus and that neither Officer Dennis Armour, who apprehended the defendant in the quad area of the Bakersfield College campus shortly after the murder, nor Officer Robert Anthony Ennis, who transported defendant to the Bakersfield police station and stayed with him until the detective in charge arrived, questioned the defendant about the facts of the offense. It was the department policy that the detective assigned to the case conduct all investigations. Officer Ennis knew defendant's brother and friends, and his wife was one of defendant's former teachers and because defendant was sweating profusely and appeared extremely nervous, he conversed with defendant about mutual acquaintances in order to relax him. After about 2 hours defendant asked Officer Ennis if he could telephone his mother but having determined from defendant's driver's license that he was 19 years of age, the officer asked defendant to wait until the detective arrived.

Officer Singleton, a detective with 14 years experience, who was assigned to the case, arrived and conducted the interview at about 10:10 p. m. that evening. Set out haec verba in footnote 66 below are the portions of Officer Singleton's testimony at the hearing on the 1538.5 motion in Bakersfield relevant to the issue before us. This testimony appears in only 9 pages of the total of about 2,000 pages of reporter's transcript comprising the complete record on appeal.

The trial court in denying defendant's motion to suppress the taped confession stated: “I can't find anything in the evidence produced that would indicate to me that there is in fact a violation of Miranda in this case. In fact, as previously noted the admission of the tape recording in question into evidence was either sought to be suppressed or objected to on three separate occasions during the more than a year the case was in the trial court and in each instance the request was denied.7

“A proceeding under section 1538.5 to suppress evidence is a full hearing on the issues before the superior court sitting as a finder of fact. (People v. Superior Court (Peck) 10 Cal.3d 645, 649, 111 Cal.Rptr. 565, 517 P.2d 829 [[[[…]; People v. West (1970) 3 Cal.3d 595, 602, 91 Cal.Rptr. 385, 477 P.2d 409 […].) The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court's findings—whether express or implied—must be upheld if supported by substantial evidence. (People v. Gale (1973) 9 Cal.3d 788, 792, 108 Cal.Rptr. 852, 511 P.2d 1204 […]; People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621 […].)” (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 530 P.2d 585, italics added.)

However, where, as here, we are not confronted with a conflict in the evidence and the issue turns on the testimony of a single witness, Officer Singleton, it is our duty to examine the uncontradicted facts to determine independently whether the trial court's conclusion was properly found. (See People v. McClary (1977) 20 Cal.3d 218, 229, 142 Cal.Rptr. 163, 571 P.2d 620.)

At the outset it is important to point out that the case at bench is not one in which a minor has requested a parent. In People v. Burton, supra, 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793, the California Supreme Court reversed a first degree murder conviction because a confession was made after the defendant, a 16-year-old, requested to see his parents and his request was flatly refused. The court said at page 382, 99 Cal.Rptr. 1, 491 P.2d 793: “For minors, it would seem that the desire for help naturally manifests in a request for parents. It would certainly severely restrict the ‘protective devices' required by Miranda in cases where the suspects are minors if the only call for help which is to be deemed an invocation of the privilege is the call for an attorney.”8 In the instant case the evidence is uncontradicted that the defendant was not a minor but was an adult. Having reached his majority, being 19 years old at the time of the murder, he had shed the protective cocoon the decisional law the state high court has afforded to minors and had assumed the responsibilities and obligations of an adult.

We note further that this is not a case in which the defendant requested an attorney. The instant case does not involve the procedures to be followed if the person in custody asks to consult an attorney, since the record is clear that defendant made no such request at any time. The Miranda court distinguished between the procedural safeguards triggered by a request to remain silent and a request for an attorney by directing that “the interrogation must cease until an attorney is present” only “[i]f the individual states that he wants an attorney.” (384 U.S. at p. 474, 86 S.Ct. at p. 1627.)

The key issue in the instant case therefore narrows down to the question as to whether or not there was violation of that portion of the Miranda decision where a defendant expresses the desire to remain silent. The Miranda court said at pages 473-474, 86 S.Ct. at pages 1627: “Once 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․” But the court also said at page 444, 86 S.Ct. at page 1612: “[By] custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Italics added; see also People v. Fioritto (1968) 68 Cal.2d 714, 718, 68 Cal.Rptr. 817, 441 P.2d 625.)

Miranda's California progeny, namely the California Supreme Court cases of People v. Fioritto, supra, 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625; People v. Ireland (1969) 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580; People v. Randall (1971) 1 Cal.3d 948, 83 Cal.Rptr. 658, 464 P.2d 114; People v. Burton, supra, 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793; People v. Carr (1972) 8 Cal.3d 287, 104 Cal.Rptr. 705, 502 P.2d 513; People v. Superior Court (Keithley), supra, 13 Cal.3d 406, 118 Cal.Rptr. 617, 530 P.2d 585; People v. Superior Court (Zolnay) (1975) 15 Cal.3d 729, 125 Cal.Rptr. 798, 542 P.2d 1390; People v. Disbrow (1976) 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272; People v. Enriquez (1977) 19 Cal.3d 221, 137 Cal.Rptr. 171, 561 P.2d 261; People v. McClary, supra, 20 Cal.3d 218, 142 Cal.Rptr. 163, 571 P.2d 620; and People v. Pettingill (1978) 21 Cal.3d 231, 145 Cal.Rptr. 861, 578 P.2d 108; and the appellate court cases of People v. Marshall (1974) 41 Cal.App.3d 129, 115 Cal.Rptr. 821; People v. Parker (1975) 45 Cal.App.3d 24, 119 Cal.Rptr. 49; and People v. Munoz (1978) 83 Cal.App.3d 993, 148 Cal.Rptr. 165, are all factually distinguishable and inapplicable.9

The case of People v. Pettingill, supra, 21 Cal.3d 231, 145 Cal.Rptr. 861, 578 P.2d 108,10 involved circumstances nearly identical to those present in the United States Supreme Court case of Michigan v. Mosley (1975) 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313.11 The majority in Pettingill (Clark and Richardson, JJ., dis.) employed its “independent state grounds” doctrine and declined to follow the United States Supreme Court decision in Mosley pertaining to Miranda rights. In so doing the Pettingill court described the sequence of events which have typically arisen since Miranda. The Pettingill court said at page 238, 145 Cal.Rptr. 861, 578 P.2d 108: “Of course, because no warnings of any kind were given in Miranda, the decision did not actually adjudicate the precise issue now before us. That issue, which has often been presented to the courts since Miranda, typically arises from the following sequence of events: the police give the suspect the Miranda warnings and seek to question him, but he successfully invokes his right to remain silent; rather than promptly release or arraign him, however, the police continue to hold him in custody; thereafter the police again give him the Miranda warnings and renew the interrogation, and this time he confesses. There are variations on this theme: there may be more than two attempts at interrogation; the interval between interrogations may be long or short; at the start of the second or subsequent interrogation the police may or may not confront the suspect with additional evidence or statements of his accomplices; and the later questioning may be conducted by a different police officer, in a different location, and deal with a different crime. Nevertheless, in a long line of decisions this court has consistently held that a statement taken from the suspect in any of these circumstances is inadmissible because in violation of the principles of Miranda and the privilege against self-incrimination of the California Constitution.”

Clearly the case at bench does not fit the mold of either the facts of the Pettingill case or the circumstances of the typical cases or the variations thereof described above in Pettingill in which the Miranda issue arises.

Determinative here is the final disposition of In re Michael C., supra, 21 Cal.3d 471, 146 Cal.Rptr. 358, 579 P.2d 7, which completed its trek from the California Supreme Court to the United States Supreme Court and back and became final on April 1, 1980, subsequent to the filing of this court's original opinion in the instant case on February 28, 1980 (People v. Level, supra, 102 Cal.App.3d 897, as mod. at 103 Cal.App.3d 899, 162 Cal.Rptr. 682), which, as previously noted, was ordered vacated and remanded to this court by the United States Supreme Court on December 3, 1980. A comparison of the factual situation in Michael C. with the facts of the case at bench and tracing the holdings and actions of the United States Supreme Court and the California court in Michael C. is illuminating and instructive.

In Michael C. a murder proceeding against a 16-year-old minor in the juvenile court resulted in adjudicating him (Michael C.) to be a ward of the court and he was committed to the California Youth Authority. The juvenile court allowed the introduction of his confession made during police interrogation after he had asked for his probation officer and was told by the interrogating officer that the probation officer would not be called.12 At the beginning of the police interrogation the minor had been advised of his rights, and, before confessing, had been readvised of his right to an attorney, which he waived.

The court of appeal affirmed the judgment of conviction (In re Michael C. (1977), 66 Cal.App.3d 239, 135 Cal.Rptr. 762) noting that since the juvenile court's findings of fact resolved against defendant his contention that the confession had been coerced from him by threats and promises, it would have to “conclude that there was a knowing and intelligent waiver of the minor's Miranda rights unless it can be said that the request to speak to a probation officer was in and of itself sufficient to invoke” defendant's Fifth Amendment privilege. The appellate court refused to extend the rule of People v. Burton, supra, 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793, to include a request for a probation officer, finding it difficult to distinguish such a request from a request to see “one's football coach, music teacher or clergyman.” The court held that even if the Burton rule were applicable there was sufficient evidence of an affirmative waiver of his rights by defendant to distinguish Burton, where the California Supreme Court had noted that there was “nothing in the way of affirmative proof that defendant did not intend to assert his privilege.” (6 Cal.3d at p. 383, 99 Cal.Rptr. 1, 491 P.2d 793.)

The California Supreme Court granted defendant's petition for a hearing and reversed the judgment (Clark and Manuel, JJ., dis.) holding “[t]hat his confession was obtained in violation of the rules announced in Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 […] and subsequent cases, and that its admission into evidence constituted reversible error.” (In re Michael C., supra, 21 Cal.3d at p. 473, 146 Cal.Rptr. 358, 579 P.2d 7.) The California Supreme Court at page 474, 146 Cal.Rptr. 358, 579 P.2d 7, stated “[t]hat under the rules established in Miranda v. Arizona, supra, and further elaborated in this state in People v. Burton (1971) 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793 […], the police unlawfully obtained defendant's confession. Defendant's request to see his probation officer at the commencement of interrogation negated any possible willingness on his part to discuss this case with the police; it thereby invoked his Fifth Amendment privilege.” The court based this conclusion on its view that, because of the juvenile court system's emphasis on the relationship between a probation officer and the probationer, the officer was “a trusted guardian figure who exercises the authority of the state as parens patriae and whose duty it is to implement the protective and rehabilitative powers of the juvenile court.” (21 Cal.3d at p. 476, 146 Cal.Rptr. 358, 579 P.2d 7.) As a consequence, the court found that a minor's request for his probation officer was the same as a request to see his parents during interrogation, and thus under the rule of Burton constituted an invocation of the minor's Fifth Amendment rights. The court rejected a totality-of-the-circumstances inquiry and held that the probation officer would act to protect the minor's Fifth Amendment rights in precisely the way an attorney would act if called for by the accused and found the request for a probation officer to be a per se invocation of Fifth Amendment rights in the same way the request for an attorney was found in Miranda to be, regardless of what the interrogation otherwise might reveal.

On July 28, 1978, Mr. Justice Rehnquist, Circuit Justice, in “Opinion in Chambers” in Fare v. Michael C. (1978) 439 U.S. 1310, 99 S.Ct. 3, 58 L.Ed.2d 19, granted an application for stay of enforcement of the California Supreme Court's reversal ordering a rehearing pending the filing of a petition for certiorari by California Attorney General Evelle J. Younger concluding, amongst other things, that the California Supreme Court order was predicated on federal, not state, grounds and it was likely that four justices of the United States Supreme Court would vote to grant certiorari.

Justice Rehnquist pointed out that “[t]he law enforcement efforts of the State of California will be substantially affected by the California Supreme Court's decision. The ruling builds upon the Miranda prescription that ‘[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present,’ 384 U.S., at 474, 86 S.Ct. at 1627; but it goes well beyond the express language of the Miranda decision․

“…

The [California Supreme] court explicitly eschewed a ‘totality of circumstances' analysis; respondent's waiver of his Miranda rights, his experience in custodial settings, or any other factor that might bear on the voluntariness of his confession was simply irrelevant.” (439 U.S. at pp. 1312-1313, 99 S.Ct. at pp. 4-5.)13

On June 20, 1979, the United States Supreme Court in Fare v. Michael C., supra, 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197, held that the California Supreme Court erred in finding that Michael C.'s request for his probation officer was a per se invocation of his Fifth Amendment rights under Miranda (In re Michael C., supra, 21 Cal.3d 471, 146 Cal.Rptr. 358, 579 P.2d 7), and therefore also erred in holding that because the police did not cease interrogating defendant the statements and sketches made during the interrogation should have been suppressed. The Court at page 709, 99 S.Ct. 2560, 61 L.Ed.2d 197 capsulized the Miranda case in the following manner: “In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 974 (1966), this Court established certain procedural safeguards designed to protect the rights of an accused, under the Fifth and Fourteenth Amendments, to be free from compelled self-incrimination during custodial interrogation. The Court specified, among other things, that if the accused indicates in any manner that he wishes to remain silent or to consult an attorney, interrogation must cease, and any statement obtained from him during interrogation thereafter may not be admitted against him at his trial. (Id., at pp. 444-445, 473-474, 99 S.Ct. at pp. 1612, 1627.)”

We quote at length relevant portions of the United States Supreme Court decision in Fare v. Michael C., supra, 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197, appearing between pages 718-728, 99 S.Ct. pp. 2568-75:

“The California court in this case, however, extended this rule by providing that a request by a juvenile for his probation officer has the same effect as a request for an attorney. Based on the court's belief that the probation officer occupies a position as a trusted guardian figure in the minor's life that would make it normal for the minor to turn to the officer when apprehended by the police, and based as well on the state-law requirement that the officer represent the interest of the juvenile, the California decision found that consultation with a probation officer fulfilled the role for the juvenile that consultation with an attorney does in general, acting as a “‘protective [[[[device] … to dispel the compulsion inherent in custodial surroundings.”’ 21 Cal.3d, at 477, 146 Cal.Rptr. at 480, 579 P.2d, at 10, quoting Miranda v. Arizona, 384 U.S., at 458, 86 S.Ct. at 1619.

The rule in Miranda, however, was based on this Court's perception that the lawyer occupies a critical position in our legal system because of his unique ability to protect the Fifth Amendment rights of a client undergoing custodial interrogation. Because of this special ability of the lawyer to help the client preserve his Fifth Amendment rights once the client becomes enmeshed in the adversary process, the Court found that ‘the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system’ established by the Court. Id., at 469, 86 S.Ct. at 1625. Moreover, the lawyer's presence helps guard against overreaching by the police and ensures that any statements actually obtained are accurately transcribed for presentation into evidence. Id., at 470, 86 S.Ct. at 1625.

The per se aspect of Miranda was thus based on the unique role the lawyer plays in the adversary system of criminal justice in this country. Whether it is a minor or an adult who stands accused, the lawyer is the one person to whom society as a whole looks as the protector of the legal rights of that person in his dealings with the police and the courts. For this reason, the Court fashioned in Miranda the rigid rule that an accused's request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease.

A probation officer is not in the same posture with regard to either the accused or the system of justice as a whole. Often he is not trained in the law, and so is not in a position to advise the accused as to his legal rights. Neither is he a trained advocate, skilled in the representation of the interests of his client before both police and courts. He does not assume the power to act on behalf of his client by virtue of his status as adviser, nor are the communications of the accused to the probation officer shielded by the lawyer-client privilege.

Nor do we believe that a request by a juvenile to speak with his probation officer constitutes a per se request to remain silent. As indicated, since a probationer officer does not fulfill the important role in protecting the rights of the accused juvenile that an attorney plays, we decline to find that the request for the probation officer is tantamount to the request for an attorney. And there is nothing inherent in the request for a probation officer that requires us to find that a juvenile's request to see one necessarily constitutes an expression of the juvenile's right to remain silent. As discussed below, courts may take into account such a request in evaluating whether a juvenile in fact had waived his Fifth Amendment rights before confessing. But in other circumstances such a request might well be consistent with a desire to speak with the police. In the absence of further evidence that the minor intended in the circumstances to invoke his Fifth Amendment rights by such a request, we decline to attach such overwhelming significance to this request.

We hold, therefore, that it was error to find that the request by respondent to speak with his probation officer per se constituted an invocation of respondent's Fifth Amendment right to be free from compelled self-incrimination. It therefore was also error to hold that because the police did not then cease interrogating respondent the statements he made during interrogation should have been suppressed.

[The] totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved. We discern no persuasive reasons why any other approach is required where the question is whether a juvenile has waived his rights, as opposed to whether an adult has done so. The totality approach permits—indeed, it mandates—inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. See North Carolina v. Butler, supra.

In this case, we conclude that the California Supreme Court should have determined the issue of waiver on the basis of all the circumstances surrounding the interrogation of respondent. The Juvenile Court found that under this approach, respondent in fact had waived his Fifth Amendment rights and consented to interrogation by the police after his request to see his probation officer was denied. Given its view of the case, of course, the California Supreme Court did not consider this issue, though it did hold that the State had failed to prove that, notwithstanding respondent's request to see his probation officer, respondent had not intended to invoke his Fifth Amendment rights.

We feel that the conclusion of the Juvenile Court was correct. The transcript of the interrogation reveals that the police officers conducting the interrogation took care to ensure that respondent understood his rights. They fully explained to respondent that he was being questioned in connection with a murder. They then informed him of all the rights delineated in Miranda, and ascertained that respondent understood those rights. There is no indication in the record that respondent failed to understand what the officers told him. Moreover, after his request to see his probation officer had been denied, and after the police officer once more had explained his rights to him, respondent clearly expressed his willingness to waive his rights and continue the interrogation.

We hold, in short, that the California Supreme Court erred in finding that a juvenile's request for his probation officer was a per se invocation of that juvenile's Fifth Amendment rights under Miranda. We conclude, rather, that whether the statements obtained during subsequent interrogation of a juvenile who has asked to see his probation officer, but who has not asked to consult an attorney or expressly asserted his right to remain silent, are admissible on the basis of waiver remains a question to be resolved on the totality of the circumstances surrounding the interrogation. On the basis of the record in this case, we hold that the Juvenile Court's findings that respondent voluntarily and knowingly waived his rights and consented to continued interrogation, and that the statements obtained from him were voluntary, were proper, and that the admission of those statements in the proceeding against respondent in Juvenile Court was correct.

The judgment of the Supreme Court of California is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.”

The minutes of the California Supreme Court of April 1, 1980, contain the following cryptic order in respect to Michael C.:

“Crim. 19921—In re Michael C., a Person Coming Under the Juvenile Court Law/Kenneth F. Fare, as Acting Chief Probation Officer, etc., Plaintiff and Respondent v. Michael C., Defendant and Appellant. The Court: Pursuant to remand from the United States Supreme Court, the trial court's judgment is affirmed. (Fare v. Michael C. (1979) 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197.)” (Cal.Official Reports, (Apr. 17, 1980) pamp. No. 11, p. 11.)

Of particular significance here, so far as the instant case is concerned, is that Fare v. Michael C., supra, 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197, controls and renders the California Supreme Court's opinion in In re Michael C., supra, 21 Cal.3d 471, 146 Cal.Rptr. 358, 579 P.2d 7, inoperative and inapplicable. Nor is there any California progeny controlling here in which the California Supreme Court has shifted ground from the federal to the parallel provision of the California Constitution and employed its “new (independent) states' rights” doctrine14 as has been its practice in recent years.15

Accordingly, in view of the foregoing we conclude that the inflexible per se rule condemned by the United States Supreme Court in Michael C. is inapplicable to the case at bench.

The United States Supreme Court enunciated the correct test in Fare v. Michael C., supra, 442 U.S. 707, at pages 724-725, 99 S.Ct. at pages 2571-72 as follows:

“[T]he question whether the accused waived his rights ‘is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.'16 Thus, the determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel. Miranda v. Arizona, 384 U.S., at 475-477, 86 S.Ct. at 1628-29.” (Italics added.)

Turning to the case at bench and applying the totality-of-the-circumstances approach as mandated by the United States Supreme Court in Michael C., we conclude that defendant Level's Miranda rights were not violated and his taped confession was properly admitted into evidence by the trial court.

A fair interpretation of Officer Singleton's testimony considered as a whole (see fn. 6, ante) shows that this adult defendant waived his Miranda rights and during the following interview which was not tape recorded requested and was allowed permission to call his mother. He then requested that his mother be present when the interview continued. While they were in recess awaiting the mother, Officer Singleton did not in fact continue questioning the defendant about the crime for which he was arrested. The two word answer of Officer Singleton when he said “No, sir” when asked if he had stopped questioning the defendant while waiting for defendant's mother is not dispositive of this issue. A fair reading of the balance of the answer (see fn. 6, ante) shows that in fact interrogation (questioning) about the facts of the crime did cease and they “were just sitting there, talking,” and that the officer's statements pertained only to the manner in which the interview could be completed. The officer did not continue questioning the defendant about the facts of the crime. He merely suggested that if the defendant's statement might prove embarrassing to him in the presence of his mother it could be tape recorded which would eliminate any doubt as to the accuracy of his statement at a later time. The defendant of his own free will decided to complete the interview in that manner without his mother present. At no time after waiving his Miranda rights did defendant say he wished to remain silent. Furthermore, there was no rubber hose, no hobnailed boot, no threats, no promises, no coercion, and no compulsion, subtle or otherwise, which overcame the defendant's free choice to make a statement which he indicated he would do anyway after his mother arrived.

The totality-of-the-circumstances present in the instant case are even stronger in support of the trial court than in Michael C. In neither case did the defendant request a lawyer after being fully advised of their Miranda rights including the right to an attorney. Here, unlike in Michael C. where the defendant was a 16-year-old minor, defendant Level is a 19-year-old adult. Here, unlike in Michael C. where a minor defendant asked for a probation officer who conceivably has some knowledge of the law, defendant Level, an adult, merely wanted his mother, a non-lawyer, to be present. Here, unlike in Michael C., the interrogating officer did not refuse to allow the defendant to contact the person he requested and defendant Level was allowed to telephone his mother. Here, as previously noted, the interrogating officer did not proceed in the fashion as in Michael C. (see fn. 12, ante) but Officer Singleton merely suggested an alternative method of proceeding with the interrogation while waiting for defendant Level's mother to arrive (see fn. 6, ante).

Accordingly, we conclude that Officer Singleton's testimony, set forth in footnote 6, ante, considered in its complete context reasonably lends itself to the construction and interpretation afforded it by the trial court to support its finding that Officer Singleton did not in fact violate defendant Level's Miranda rights. We further conclude, following our independent analysis of Officer Singleton's testimony when considered in the totality and the “factual inferences” to be drawn therefrom, that the defendant's Miranda rights were not violated. In short, we hold defendant Level's Miranda rights were not violated in that his request for his mother to be present was not tantamount to an invocation of his right to remain silent, that he knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel and that the statements obtained from him were voluntary and properly admitted into evidence.

By reason of the foregoing and in direct response to the United States Supreme Court's order of December 3, 1980, in respect to federal or state constitutional grounds, we hold that our affirmance of the judgment of conviction is based on federal constitutional grounds.

Since no California Supreme Court decisional law has been supplied us as a contrary authority based on either federal or California constitutional grounds, and we are aware of none, we further hold that our affirmance of the judgment of conviction in no way violates California constitutional proscriptions. We decline to employ the “independent state grounds” doctrine as urged by the State Public Defender since the California constitutional prohibitions against self-incrimination are essentially identical to those of the federal Constitution and such an extension of Miranda safeguards would have a substantial adverse effect on California law enforcement efforts by impeding legitimate police investigative activity and be inimical to an efficient and economical system of criminal justice.

Moreover, of additional significance here, as in People v. Carr, supra, 8 Cal.3d 287, 104 Cal.Rptr. 705, 502 P.2d 513,17 was the fact that at the conclusion of the defendant's taped statement it appears that the defendant Level confirmed that no promises or threats were used to obtain his statement, and that he talked freely and voluntarily, thus indicating that the defendant never intended to reassert his Miranda rights at the time of the interview by requesting that his mother be present when the interview continued nor that he was subjected to any compulsion in completing the interview.

Here, defendant Level was afforded counsel at public expense. His attorney after making the panoply of motions in Kern County obtained an order from the Court of Appeal in the Fifth District transferring the case from Kern County to Ventura County for trial. During the protracted, hotly contested 17-day jury trial in Ventura County, approximately 30 witnesses were transported from the Bakersfield area to Ventura to testify and 73 exhibits were placed into evidence. The record on appeal in addition to a voluminous clerk's transcript contains 11 volumes of reporter's transcript consisting of about 2,000 pages of testimony. The jury was fully and fairly instructed on the law including the requisite elements to establish murder in the first degree and the lesser included offenses of murder in the second degree and voluntary and involuntary manslaughter. The jury was also properly instructed on the law of justifiable homicide and self-defense and was given the diminished capacity instructions.

The defendant's Miranda rights were not violated and he was fairly tried and justly convicted.

DISPOSITION

The judgment of conviction is affirmed.

I concur in the foregoing opinion and judgment by reason of the final disposition of Michael C. on April 1, 1980, by minute order of the California Supreme Court affirming the trial court's judgment on remand by the United States Supreme Court in Fare v. Michael C. (1979) 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197, reversing the judgment of the California Supreme Court (In re Michael C., 21 Cal.3d 471, 146 Cal.Rptr. 358, 579 P.2d 7), and the “totality of the circumstances” approach to the interrogation mandated by the United States Supreme Court in Fare v. Michael C., supra, 442 U.S. at pages 724, 725, 99 S.Ct. at pages 2571-72, to ascertain whether in fact defendant Level knowingly and voluntarily decided to forego his right to remain silent.

FOOTNOTES

1.  Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

2.  Unless otherwise indicated, all statutory references are to the Penal Code.

3.  In People v. Krivda (1971) 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262, the California Supreme Court affirmed the superior court's judgment of dismissal and order suppressing evidence (marijuana) obtained in a police search of defendant's trash on the grounds that the defendants had a reasonable expectation that their trash would not be rummaged through and picked over by police officers acting without a search warrant.The United States Supreme Court granted certiorari and in California v. Krivda (1972) 409 U.S. 33, 96 Cal.Rptr. 62, 486 P.2d 1262, vacated the California Supreme Court opinion and remanded it to the state Supreme Court because it was not clear whether the judgment of that court affirming the lower court was based on federal or state constitutional grounds, or both, and whether the United States Supreme Court had jurisdiction on review.The California Supreme Court in People v. Krivda (1973) 8 Cal.3d 623, 105 Cal.Rptr. 521, 504 P.2d 457, certified that it “relied upon both the Fourth Amendment to the United States Constitution and article I, section 19, of the California Constitution, and that the latter provision furnished an independent [state] ground to support the result [it] reached in [5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262].” (P. 624, 105 Cal.Rptr. 521, 504 P.2d 457.)

4.  Also admitted into evidence and played to the jury was another tape recording of statements made by defendant Level to some visitors while he was in custody. Defendant who did not know this statement was being recorded told his visitors that when he was on campus trying to find his friend Mylo was when he “saw this white bitch”; that he said to her, “Hey, you got a few minutes?”; that she turned, looked at him and said: “I don't have time for no niggers” and kept on walking; that he thought about it for a few minutes and said to himself “I'm—I'm gonna go after that bitch, why she say that, you know”; that he caught up with her in the parking lot and said to her, “Hey, why did you—why did you say that to me?”; that the “bitch” turned kind of sideways and said: “Cause all niggers are dirty and they ain't worth a damn. If you don't get your black ass away from me, I'll blow your head off”; that “the bitch went into her purse, man. She was gonna bend to go in her purse, and I ran up on the bitch and hit her, man, with—with the thing that I had”; that after she fell to the ground he tried to drag “her away from out in the open” so he could see what was wrong with her because he “just figured she was out cold”; that in dragging her he got blood on his hands, white tennis shoes and jacket; and that her husband who was waiting for her jumped out of his car and ran toward him hollering “you sonofabitch” and he ran off “trying to get away.” When asked by one of the visitors if he was going to plead guilty, he said: “Hell no” and “[h]ope that I can get maybe, uh, manslaughter or hopefully a self defense case, man.” He later indicated that his “mother fucking mistake—big mistake—was talking to the police.”

5.  But see discussion tracing the history of Michael C., infra.

6.  Following is the relevant testimony of Officer Singleton at the defendant's motion to suppress the taped confession in question:“[DIRECT EXAMINATION]“[BY MR. McNUTT (deputy district attorney)]“Q Prior to conducting an interview with the suspect, were you aware of the fact he was under arrest?“A Yes, sir.“Q Was your interview with him relating to a possible homicide at B.C.?“A It was a homicide at that time.“Q It had been confirmed as a homicide?“A Yes, sir.“Q Prior to conducting an interview with the defendant, did you advise him of his constitutional rights per Miranda?“A Yes, sir.“Q And for that purpose, did you utilize any artificial devices?“A I used a card provided by the Police Department.“Q And do you have that same card with you here today?“A Yes, sir.“Q Would you recite on the record, please, exactly what you related to Mr. Level on November 15th, prior to conducting your interview with him?“A Yes. ‘Number one, you have the right to remain silent’. And I asked him if he understood what that meant. ‘Yes.’ ‘Two, anything you say can and will be used against you in court’. And I asked him if he understood those. And he stated he did. ‘Three, you have the right to consult with a lawyer before answering any questions and have a lawyer with you during any questioning’. And I asked him if he understood that, and he said, ‘Yes'. The fourth one, ‘If you cannot afford a lawyer, one will be provided free of cost, if you want one’. And I asked him if he understood that, and he said, ‘Yes'. And I asked, ‘Having these rights in mind, do you want to go ahead and make a statement to Detective Horton and myself regarding your involvement, if any, in the assault?’, and he said he would.“Q Did you indicate to him at that time that the victim had died?“A Yes, sir.“Q Was he advised of the fact he was under arrest as a suspect in the killing of that victim?“A Yes, sir.“Q Was this Mirandazation on tape?“A No, sir.“Q Did you subsequently to giving him his rights and obtaining the waiver, interview him regarding the possible homicide?“A Yes, sir.“Q And was that on tape?“A No, sir.“Q For what length of time did you conduct an interview with him regarding the homicide?“A It was approximately one hour.“Q Subsequent to that interview, did you conduct another interview?“A Yes.“Q Was that interview on tape?“A Yes, sir.“Q How soon after the first interview did the second interview take place?“A It commenced, I believe, at 11:40 p. m.“Q On the same date?“A Yes, sir.“Q Why the break between the first interview and the second interview?“A We initially got the initial statement from him, and then at one point he requested to talk with his mother. And we allowed him to do that; to make a phone call to his mother.“Q Did he at any time indicate that he did not want to talk to you any more or that he wanted an attorney?“A No, sir.“Q Did he in fact talk with his mother?“A Yes, sir.“Q How soon after that was it you conducted the second interview on tape?“A It was shortly after his conversation. We were waiting for her to come down to the police station. Before he wanted to make the phone call to his mother, I got the impression that he did want to make a statement regarding the actual facts of the assault. But he was for some reason or other, uneasy. And so we let him make the phone call to his mother. And afterwards, we went back to the room, talked a little longer, and I asked him if he would make a statement if it was tape recorded; therefore, there could be no way that we could indicate in the report other than what he stated to us.“Q And who indicated that this second interview should be on tape?“A I asked if he would go ahead and make a statement without his mother there, if we tape recorded it, and he indicated he would.“Q Was he in effect asking that the second interview be taped?“A Yes.“MR. KING [deputy public defender]: Objection, your Honor, as calling for a conclusion.“THE COURT: Sustained.“Q (By Mr. McNutt) Did he ask that the second interview be taped?“A I suggested it to him, and he said he wished it taped.“MR. McNUTT: Your Honor, and Counsel, I don't believe it's necessary for the purpose of the proceedings to go into the content of the conversation. I will offer a stipulation that the officer would testify to the content of the conversation as contained in the officer's report and the preliminary transcript, and the second interview was taped. Unless Counsel for some reason wants to go into it at this time, that is. I would also stipulate there is relevant, and material, and possibly incriminating evidence contained in those statements.“MR. KING: I think in this hearing, your Honor, that the record should be complete. I am not prepared to stipulate at this time.“THE COURT: All right, Mr. McNutt.“MR. McNUTT: With the Court's permission then, I will stop my direct at this point. I simply wanted to establish the Miranda warning. And Counsel can get as much as he wants in getting out testimony.“THE COURT: All right.“CROSS-EXAMINATION“BY MR. KING:“Q Mr. Singleton, prior to interviewing Mr. Level, did you have any conversation with Mr. Ennis?“A I believe I went into the lab twice—once when I got back to the station from being out in the field, and I just briefly looked in the lab, and observed Mr. Level and Mr. Ennis, and told them I would get to them as soon as possible. And then after my interview with the victim's husband and two other individuals, I again went in, and told them I would be just a few more minutes. But I had no direct conversation with Mr. Ennis.“Q Did you talk to Mr. Ennis regarding the search of the car?“A I had no idea there was a car at the college.“Q When did you first learn about a car being involved in this case?“A It was after one of the interviews—one of the three interviews—I don't know which one—I learned that they had found a jacket, and that there was blood on the jacket.“Q Do you know what time that was?“A No, I have no idea, sir.“Q Was it before you talked to Mr. Level?“A Oh, yes, sir.“Q And whom did you learn or obtain that information from?“A I do not recall, but it was not from Mr. Ennis.“Q Was it Mr. Foy?“A I don't believe I saw Mr. Foy that night.“Q You were talking about three interviews? Who were the subjects in those interviews?“A The victim's husband, Mr. Brown; Bill Pedeton; and a Kirk Brown.“Q And where did these interviews take place?“A At the Police Department.“Q And these were the possible witnesses to the offense?“A That is correct, sir.“Q And when you interviewed them, you used a tape recording of their conversation?“A That is correct, sir.“Q When you interviewed Mr. Level, you did not use a tape recorder? Is that right?“A That is correct, sir.“Q And where was the tape recorder at the time that you had previously used for the three witnesses?“A Either in my office or in the—I believe it was in my office.“Q Was there anything defective with that tape recorder?“A No, sir.“Q Was there any particular reason that you did not use the tape recorder when you talked to Mr. Level?“A Normally, it makes individuals very uneasy, and they won't talk, or they feel hesitant for some reason, and it intimidates them.“Q You did not feel that was true, however, when you interviewed the three witnesses?“A No, because they are not suspects.“Q Now, in the first statement that you obtained from Mr. Level, did he indicate to you he wanted to phone his mother?“A It was towards the end. That's when we broke when he wanted to place a phone call to his mother.“Q And he told you that he did not want to talk to you until he had talked to his mother?“A It is not that he didn't want to talk to me. He did not want to make a statement regarding the actual facts of the assault without talking to his mother.“Q And you allowed him to make the phone call?“A That is correct.“Q Did you monitor that phone call?“A No, sir.“Q Did any officer, to your knowledge, monitor that phone call?“A No, sir.“Q How long did the phone call last?“A Two or three minutes.“Q And what time was it made?“A Sometime between 11:10 and, I would say, maybe 11:15 or 11:20.“Q And after the phone call, Mr. Level told you that he wanted to have his mother present before he made any statement?“A Yes, sir.“Q And you did not stop questioning him?“A No, sir. We were back in the interview room, waiting for her to respond to the station, and we were just sitting there, talking. And I suggested that he might not want to say something in her presence. He might feel uncomfortable, but if we put it on tape, then there would be no question as to what his statement was.“Q Did you tell Mr. Level that if he wanted to make the taped statement, that you would show it to his mother and let her listen to it when she arrived?“A I don't recall saying that.“Q Mr. Level's statement to you was he wanted to have his mother present when he gave you a statement?“A That's the impression I got, yes, sir.“Q Did he say that?“A I don't recall.“Q Do you recall testifying at the preliminary hearing?“A Yes, sir.“Q Do you recall being questioned that when Mrs. Level came down to the station, he wanted to talk to her before he gave a statement? Do you recall being asked that?“A Yes.“Q And do you recall answering, ‘He (indicating Mr. Level) would like to have her present while he was making the statement?’“A Yes, sir.“Q Did he tell you that?“A I don't recall if I was told or I just got that impression.“Q Do you recall making the answers I just read to you?“A No, sir.“MR. KING: Your Honor, may I approach the witness with the transcript of the preliminary hearing?“THE COURT: Certainly.“MR. KING: Page 119, Line 25.“THE WITNESS: He indicated he wanted to talk to her before he gave a statement. That's at Line 25?“MR. KING: Line 27?“A Yes, sir, that's in the transcript.“Q He indicated he wanted to have his mother present when he gave you a statement?“A Yes, sir.“Q And then you suggested to him that he make a tape recording instead of having his mother present?“A That's correct, sir.“Q Did you ever indicate to him that his mother would be allowed to listen to the tape recording?“A I don't think so.” (Italics added.)

7.  The first occasion was at defendant's motion to suppress the tape pursuant to section 1538.5 before Judge P. R. Borton in the Kern County Superior Court at the February 21 and 28, 1978, hearings. The court denied the motion. These are the hearings which are before this court on appeal.The second occasion was when defense counsel renewed the motion to suppress the tape before Judge Bruce A. Thompson, the trial judge, following the change of venue to Ventura County. The motion was submitted on the transcript of the February 1978 hearing and was again denied.The third occasion was following the trial when defense counsel raised the issue again as one of his grounds supporting the defense motion for a new trial. Judge Thompson denied the motion for a new trial.

8.  The case of People v. Burton, supra, 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793, has been rendered of doubtful validity by reason of the United States Supreme Court decision of Fare v. Michael C., supra, 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197, discussed in the body of this opinion. (But see People v. Alfieri (1979) 95 Cal.App.3d 533, 544, 157 Cal.Rptr. 304; In re Patrick W. (1980) 104 Cal.App.3d 615, 618, 163 Cal.Rptr. 848.)

9.  In the case at bench defendant Level after he was initially given the Miranda warning acknowledged he understood his rights, agreed to speak, did not ask for an attorney and at no time vocally or otherwise reasserted his Miranda rights. In Ireland, Randall, Zolnay, Disbrow and McClary after the giving of the initial Miranda warning the defendants in each case asked for an attorney and in Fioritto, Keithley, Disbrow and Pettingill the defendants stated they wished to remain silent. In Ireland, Randall, Keithley and Pettingill the defendants were confronted with the repeated giving of the Miranda rights until they agreed to talk after first asserting those rights. Here, unlike Fioritto, where the defendant was confronted by accomplices who had already confessed after the defendant had refused to speak, the defendant before the interview started by Officer Singleton knew that the police saw the fresh blood on his hands and tennis shoes; and that he had previously voluntarily consented to have the officers search his car where he had placed the letterman's jacket with fresh blood on its sleeves and he was advised that the female he had clubbed with the metal table leg had died. Here, at no time including during the recess did the defendant reassert his Miranda rights and ask for an attorney as in Enriquez. Here, at no time was the defendant pressured or threatened as in Zolnay and McClary nor was he given false assurances that his statement would not be used in court as in Disbrow. Here, the defendant was a 19-year-old adult who merely asked that his mother be present during questioning, which request was never refused, unlike Burton where the defendant was a 16-year-old minor who asked for his father but whose request was denied.In Marshall during the course of questioning of a 17-year-old youth regarding the murder of his stepfather, the officer asked if he wanted “to go over the parts [he] left out?” and the defendant answered “no” twice and a third time said, “I just don't want to.” We held that the answers amounted to a clear invocation of his Fifth Amendment privilege to remain silent foreclosing further interrogation. In the instant case the defendant made no such statements. To the contrary the testimony of Officer Singleton shows that the defendant who had previously waived his Miranda rights intended to complete the interview but wanted his mother present. During the recess the officer merely suggested some alternative in the manner of proceeding to which the defendant freely and voluntarily agreed without any compulsion whatsoever.In Parker the defendant's conviction of first degree murder which occurred in the court of an attempted bank robbery in Los Angeles, California, was reversed. Defendant Parker was arrested in Denver, Colorado, and the Denver police read his Miranda rights from a printed form but rather than consenting to the waiver defendant wrote on the form in the space designated for his signature “You are in as much of the dark as I am. I'll just wait.” Three days later Los Angeles Police Department officers went to Denver and read him his rights again, but defendant said he wanted to talk to “somebody.” He then said the “somebody” was a prison doctor or a psychiatrist. The chief psychologist at the Denver County Jail interviewed the defendant. He noted that the defendant was “apparently under pressure, stress, and that's why he wanted to talk matters over with a psychologist or a minister and that he could not decide whether he would make a confession to the detectives or not.” Following the interview the jail house psychologist told the police that he had “this boy ready to make his confession.” The detectives without repeating the Miranda warning asked defendant if he wanted to discuss his role in the “attempted robbery and murder” and he said he would. In the case at bench the defendant never requested a psychiatrist or a minister nor was he interviewed by a jail house psychologist to soften him up. Here, defendant merely wanted his mother present when the interview continued after having first waived his Miranda rights and the officer merely suggested an alternative mode of proceeding to which defendant freely agreed.The Munoz case involved a request for an attorney. The reviewing court held that the defendant's statement “Well, maybe I should talk to my attorney” although “ambiguous [could] be construed as an invocation of his right to speak to an attorney before questioning. When Narramore [the detective] told Munoz he wanted to tell him what information he had, he avoided dealing with Munoz's request. His action served to ‘soften’ up Munoz, as he must have intended it to, thus subverting Munoz's not too forcefully expressed wish to see his named attorney.” (83 Cal.App.3d at p. 996, 148 Cal.Rptr. 165.) In the case at bench it is uncontradicted that defendant Level never requested an attorney and that he had already been advised of the salient facts known by Officer Singleton as previously listed herein prior to the recess.

10.  In Pettingill the defendant pleaded guilty to two counts of burglary after the trial court denied his motion to suppress evidence of his confession, together with certain physical evidence found in a search to which he had consented in the course of the confession. The record indicated that the arresting police officer had read defendant his constitutional rights at the scene of the arrest, had asked defendant if he wanted to talk to him to which defendant responded in the negative so he was asked no more questions at that time. Two hours later at the police station, the same police officer again advised defendant of his constitutional rights, asked him if he wished to talk to him about the burglary for which he had been arrested, and again defendant declined after which the officer had no further discussion with him. More than 60 hours later a police detective from another county and city questioned defendant about four unrelated burglaries in the other county. The questioning took place at a location different from the location of the prior questioning, and the police detective gave defendant his full and complete warnings as to his constitutional rights before he was questioned. It was during this interrogation that defendant waived his privilege against self-incrimination and confessed to the four burglaries. The detective did not resume interrogation about the burglary for which defendant had been arrested. The state Supreme Court reversed, holding that defendant's confession was inadmissible under the privilege against self-incrimination.

11.  In Mosley the defendant had been arrested in connection with certain robberies and a detective gave him the Miranda warnings. Defendant declined to discuss the robberies, whereupon the detective ceased the interrogation. More than two hours later, after giving Miranda warnings, another detective questioned defendant solely about an unrelated murder. Defendant made an inculpatory statement, which was later used in his trial for murder, which resulted in his conviction. The appellant court reversed on the ground that Miranda mandated a cessation of all interrogation after defendant had declined to answer the first detective's questions. The United States Supreme Court held that the admission in evidence of defendant's incriminating statement did not violate Miranda principles.

12.  Following is the conversation between the police and the minor defendant (Michael C.) on February 4, 1976, at the Van Nuys police station:“Q․ Do you understand all of these rights as I have explained them to you?“A. Yeah.“Q. Okay, do you wish to give up your right to remain silent and talk to us about this murder?“A. What murder? I don't know about no murder.“Q. I'll explain to you which one it is if you want to talk to us about it.“A. Yeah, I might talk to you.“Q. Do you want to give up your right to have an attorney present here while we talk about it?“A. Can I have my probation officer here?“Q. Well I can't get a hold of your probation officer right now. You have the right to an attorney.“A. How I know you guys won't pull no police officer in and tell me he's an attorney?“Q. Huh?“A. [Repeat of last answer.]“Q. Your probation officer is Mr. Christiansen.“A. Yeah.“Q. Well I'm not going to call Mr. Christiansen tonight. There's a good chance we can talk to him later, but I'm not going to call him right now. If you want to talk to us without an attorney present, you can. If you don't want to, you don't have to. But if you want to say something, you can, and if you don't want to say something you don't have to. That's your right. You understand that right?“A. Yeah.“Q. Okay, will you talk to us without an attorney present?“A. Yeah I want to talk to you.” (In re Michael C., supra, 21 Cal.3d at pp. 473-474, 146 Cal.Rptr. 358, 579 P.2d 7, original italics.)

13.  Justice Rehnquist in supporting his assessment of the likelihood that four justices would vote to grant certiorari and that the appellant (Fare, Acting Chief Probation Officer) would prevail on the merits, states at pages 1314-1315, 99 S.Ct. at pages 5-6:“Miranda v. Arizona was decided by a closely divided Court in 1966. While the rigidity of the prophylactic rules was a principal weakness in the view of dissenters and critics outside the Court, its supporters saw that rigidity as the strength of the decision. It afforded police and courts clear guidance on the manner in which to conduct a custodial investigation: if it was rigid, it was also precise. But this core virtue of Miranda would be eviscerated if the prophylactic rules were freely augmented by other courts under the guise of ‘interpreting’ Miranda, particularly if their decisions evinced no principled limitations. Sensitive to this tension, and to the substantial burden which the original Miranda rules have placed on local law enforcement efforts, this Court has been consistently reluctant to extend Miranda or to extend in any way its strictures on law enforcement agencies. I think this reluctance is shown by our decisions reviewing state-court interpretations of Miranda. As we noted in Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975), ‘a State may not impose … greater [Miranda] restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them.’ (Emphasis in original.)“…“In our most recent pronouncement on the scope of Miranda, we found that the Oregon Supreme Court's expansive definition of ‘custodial interrogation’ read Miranda too broadly. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). Our reason for so ruling is probably best encapsulated in an observation we made in a similar context: ‘[S]uch an extension of the Miranda requirements would cut this Court's holding in that case completely loose from its own explicitly stated rationale.’ Beckwith v. United States, 425 U.S. 341, 345, 96 S.Ct. 1612, 1615, 48 L.Ed.2d 1 (1976). I think the decision of the California Supreme Court also risks cutting Miranda loose from its doctrinal moorings. The special status given legal counsel in Miranda's prophylactic rules is related to the traditional role of an attorney as expositor of legal rights and their proper invocation. He is also the principal bulwark between the individual and the state prosecutorial and adjudicative system. A probation officer simply does not have the same relationship to the accused and to the system that confronts the accused, and I believe this fact would lead four Justices of this Court to grant the State's petition for certiorari in this case.”

14.  See Mosk, The New States' Rights (1976) 10 J.Cal.L.Enforcement 81.

15.  For examples of some cases in which the California Supreme Court has employed its “new states' rights” doctrine in addition to Krivda and Pettingill see Barber v. Municipal Court (1979) 24 Cal.3d 742, 157 Cal.Rptr. 658, 598 P.2d 878 (Clark, J., dis.); People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (Richardson and Clark, JJ., dis.); People v. Hannon (1977) 19 Cal.3d 588, 138 Cal.Rptr. 885, 564 P.2d 1203 (Clark, J., dis.); Allen v. Superior Court (1976) 18 Cal.3d 520, 134 Cal.Rptr. 774, 557 P.2d 65 (Clark, Richardson and McComb, JJ., dis.); People v. Maher (1976) 17 Cal.3d 196, 130 Cal.Rptr. 508, 550 P.2d 1044 (Clark and McComb, JJ., dis.); People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333 (Clark, J., dis.); People v. Disbrow (1976) 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272 (Richardson, McComb and Clark, JJ., dis.); People v. Longwill (1975) 14 Cal.3d 943, 123 Cal.Rptr. 297, 538 P.2d 753 (Clark and McComb, JJ., dis.); People v. Norman (1975) 14 Cal.3d 929, 123 Cal.Rptr. 109, 538 P.2d 237 (Clark and McComb, JJ., dis.); Gee v. Brown (1975) 14 Cal.3d 571, 122 Cal.Rptr. 231, 536 P.2d 1017 (Clark, J., dis.); People v. Brisendine (1975) 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099 (Burke, McComb and Clark, JJ., dis.).

16.  Citing North Carolina v. Butler (1979) 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286.

17.  In Carr a jury found defendant guilty of the first degree murder of an elderly man and fixed the penalty at death. Defendant relied on the defense of diminished capacity, having stated in confessions made to a police officer that if he had not been smoking pot before the crime he probably couldn't have gotten the guts to do it. Defendant did not take the stand at trial and there was no other evidence of diminished capacity. The trial court refused to instruct as to second degree murder and voluntary manslaughter on the ground of diminished capacity, and told the jury that it could only acquit defendant or find him guilty of first degree murder. In his confessions defendant had admitted taking the decedent's wallet containing a substantial sum of money as well as a radio and a rifle and the jury was instructed, among other matters, on murder committed in the perpetration of or attempt to perpetrate robbery.On defendant's automatic appeal, the state Supreme Court in Carr modified the judgment so as to provide for life imprisonment rather than death and as so modified affirmed it in all other respects. No merit was found in defendant's contentions that he had not effectively waived his rights to counsel and to remain silent before confessing, that he had later reasserted those rights, and that he had been induced to confess by the interrogating officer's promise of leniency.The Carr court addressed the defendant's contention that toward the end of his taped interview the officer asked him “Would you like to quit now, Mr. Carr?” to which the defendant replied affirmatively. The officer then asked a few more questions: specifically, he asked whether the defendant had anything to add to the interview, or on his own behalf, if he understood or had any doubt that he would be charged with first degree murder, whether he had been treated well or threatened, and whether he had been given cigarettes when he wanted them. The defendant's answers were either “yes” or “no.” The court said that the evidence that defendant was reasserting his Miranda rights was highly “equivocal.” The court took into account “the circumstances surrounding the alleged request to discontinue questioning” and took note of his statements at the end of the interview.

L. THAXTON HANSON, Associate Justice.