Reset A A Font size: Print

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

The PEOPLE, Plaintiff and Respondent, v. David J. LARUE, Defendant and Appellant.

Cr. 13506.

Decided: January 06, 1982

Quin Denvir, State Public Defender, and Mark Fogelman, Deputy State Public Defender, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., Gloria F. DeHart and Ronald D. Smetana, Deputy Attys. Gen., for plaintiff and respondent.

David J. Larue appeals from a judgment (probation order) after a jury trial in which he was acquitted of robbery (Pen.Code, § 211) but convicted of aggravated assault (Pen.Code, § 245, subd. (a)).1

The facts relevant on appeal concern admissions made by Larue to Officer Bennett of the San Pablo Police Department following the arrest and booking.   Officer Bennett's testimony regarding Larue's statements was admitted into evidence after a timely defense objection and in camera hearing.

Officer Hearn arrested the 20-year old Larue and took him to the San Pablo police station where he was promptly booked.   It took about 20 minutes to transport Larue and another 20 minutes to book him.   During booking, Larue asked to use the telephone so he could contact his mother to arrange bail and inform her of his whereabouts.   This request was denied pursuant to Officer Bennett's instructions.   Bennett gave this instruction so he could interrogate Larue before Larue could communicate with anyone.   During the 7-minute interrogation, Larue made statements to Bennett, discussing only the robbery charge.   The statements, however, were incriminating to the extent they placed Larue at the scene of the assault.   The statements also were used in the prosecution's unsuccessful attempt to impeach Larue.

The court found Larue had a statutory right (§ 851.5) to use the telephone immediately after booking and this right had been violated as a matter of law.   Larue's counsel suggested, and the court placed some importance on the fact, the deprivation of Larue's right was caused by Bennett's negligent misinterpretation of section 851.5 and not by malice.   The court also found, despite contradictory testimony, Larue “was advised of his constitutional rights and freely and voluntarily waived these rights before speaking with” Officer Bennett.   The court found Larue's statement was voluntary.

 Larue first contends the denial of his right to use the telephone guaranteed under section 851.5 2 makes inadmissible all statements he made before the police honored his request.   He contends violation of that right taints the interrogation and admission of the officer's testimony concerning the conversation constitutes reversible error.

The statute on its face requires police to give a suspect telephone use immediately after booking unless extraordinary circumstances exist so he may contact an attorney, bondsman, relative, or friend.

The violation of this statutory right followed by a voluntary admission carries a different sanction than violation of a constitutional right which produces the evidence (see Rogers v. Superior Court (1955) 46 Cal.2d 3, 10, 291 P.2d 929).   The important question is whether the defendant was denied a fair trial or otherwise suffered prejudice as a result of the denial of the statutory right.   The leading case regarding section 851.5 is In re Newbern (1961) 55 Cal.2d 500, 11 Cal.Rptr. 547, 360 P.2d 43, where an arrestee was denied the right to call a bail bondsman.   The Supreme Court found the denial of the right to call a bondsman was functionally equivalent to a denial of the constitutional right to bail.   Despite the violation of this important right, however, the court stated “there is no relief to which the petitioner is now entitled.   There is no sufficient showing in this case that the denial of the right to call a bail bondsman resulted in the denial of a fair trial or prevented the petitioner from obtaining and presenting evidence of his innocence ․”  (Id. at p. 507, 11 Cal.Rptr. 547, 360 P.2d 43;  People v. Moreland (1971) 15 Cal.App.3d 269, 275, 92 Cal.Rptr. 563.)   The identical standard was adopted regarding violations of section 825, the statute mandating prompt arraignments.  (People v. Pettingill (1978) 21 Cal.3d 231, 244, 145 Cal.Rptr. 861, 578 P.2d 108;  People v. Combes (1961) 56 Cal.2d 135, 142, 14 Cal.Rptr. 4, 363 P.2d 4.)

In the present case, the court applied this standard and concluded no unfairness would result.   The court employed a two-pronged test requiring the defendant to prove both a violation of section 851.5 and unfairness equivalent to a miscarriage of justice caused by the violation.   This is the correct standard and it comports with the California Constitution, article VI, section 13 (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243).3

The court found Larue's statutory (§ 851.5) right to use the telephone had been violated as a matter of law.   The People concede this point.   As to the second prong, Larue failed to prove a miscarriage of justice occurred due to the violation.

In attempting to prove prejudice, hence a miscarriage of justice, Larue points out the incriminating statement was admitted both substantively and for impeachment.   But in an attempt to minimize the punishment at sentencing, Larue's counsel states:

“In talking to the jurors afterwards, it was my impression Mr. Larue spoke with at least one juror with me;  that they simply accepted what—what Mr. Larue had said on the witness stand, which was that both participants (Larue and the assault victim) were very intoxicated, that no robbery occurred․  That there was an honest belief that he (Larue) needed to defend himself, but it was, in fact, unreasonable and that, in fact, he went too far.”

Thus, Larue himself suggests the reason for the assault conviction and robbery acquittal was the jury in fact believed his own testimony.   This testimony, plus the magnitude of the victim's injuries, were the damaging aspects of his case—not the incriminating statement made to the officer.

Two other points support this court's finding no miscarriage of justice occurred.   The first is that since Miranda warnings were given (as will be discussed later), the harm from the section 851.5 violation would be attenuated.   The second regards the context and substance of the incriminating statement.   The testimony of both Officer Bennett and Larue shows the interrogation and statement pertained only to the robbery charge and not the assault except to the extent they disclosed his presence at the scene.   However, this was not an issue in the case as Larue admitted he was at the place of the alleged crime.   The jury acquitted him of the robbery charge so the substance of the statement had insignificant adverse effect on Larue.   The jury clearly relied on other evidence to find guilt on the assault charge.   This compels our holding that no miscarriage of justice occurred despite the section 851.5 violation.

 Larue next contends his request to use the telephone invoked his privilege against self-incrimination and his right to counsel, and therefore, required all custodial interrogation to cease.

In People v. Randall (1970) 1 Cal.3d 948, 83 Cal.Rptr. 658, 464 P.2d 114, the Supreme Court held an actual telephone call to an attorney invoked the right to counsel.   This decision reaffirmed the Miranda directive that when an “individual [initially] states that he wants an attorney, the interrogation must cease until an attorney is present.”  (Italics in original;  id. at p. 954, 83 Cal.Rptr. 658, 464 P.2d 114.)  “[A] suspect may indicate that he wishes to invoke the privilege by means other than an express statement to that effect;  no particular form of words or conduct is necessary.”  (Id. at p. 955, 83 Cal.Rptr. 658, 464 P.2d 114.)   In People v. Fioritto (1968) 68 Cal.2d 714, 718–719, 68 Cal.Rptr. 817, 441 P.2d 625, the court held a suspect's refusal to sign a waiver form invoked the privilege.   In People v. Ireland (1969) 70 Cal.2d 522, 532–533, 75 Cal.Rptr. 188, 450 P.2d 580, the suspect was advised of his Miranda rights and replied, “ ‘Call my parents for my attorney.’ ”   This too invoked his rights.

Randall, Fioritto and Ireland have in common a suspect's conduct or statement which clearly invokes his constitutional rights because it is “inconsistent with [his] present willingness ․ to discuss his case freely and completely with police at that time.”  (People v. Randall, supra, 1 Cal.3d 948, 956, 83 Cal.Rptr. 658, 464 P.2d 114.)   But in the present case, no such inconsistency caused by a clear invocation of constitutional rights exists.   In all of the above cases, police gave the suspect his Miranda warnings;  the suspect invoked his constitutional protections either directly or indirectly;  interrogation continued;  and finally, the suspect confessed.   But the present case is easily distinguished.

Larue was denied his right to use the telephone.   He indicated had he been granted his request, he would have telephoned his mother to arrange bail and inform her of his whereabouts.   Twenty minutes later, he was initially advised of his Miranda rights.   He told Officer Bennett he understood his rights and would discuss his case.   The discussion, which solely involved the robbery charge, lasted only about seven minutes.   The mere request to use the telephone does not invoke a suspect's constitutional rights and is not, per se, inconsistent with a present willingness to discuss his case freely and completely with police.

Had Larue been confused about his constitutional rights because of the denial of his statutory right to use the telephone is another question which need not be decided here.   The trial court was very sensitive to any possible confusion in the mind of Larue concerning his constitutional rights.   It concluded no confusion existed.4

One final authority cited by Larue, People v. Burton (1971) 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793, is also distinguishable.   In Burton, a minor was arrested for two murders and an aggravated assault.   Before interrogation, the child requested to see his parents when his father was at the police station.   This request was denied.   Burton then confessed during interrogation.   The court stressed that a minor logically would ask for a parent when confronted with police interrogation, whereas an adult would not.   (Id. at p. 382, 99 Cal.Rptr. 1, 491 P.2d 793.)   Therefore, a minor's request to see a parent is equivalent to invoking the right to see an attorney.

The present case is distinguishable on two grounds.   First and most important, Larue, though youthful, was not a minor.   This critical fact cannot be ignored.   Second, Larue stated the reason he wanted to call his mother was to arrange bail and inform her of his whereabouts.   This reason does not suggest Larue's unwillingness to talk with the police, especially when his Miranda warnings were given only 20 minutes after his telephone request was denied.

 Larue next contends his Miranda warnings were defective because the officer's earlier denial of Larue's request to make a telephone call undermined and diluted the Miranda advisements, and hence his constitutional rights were not knowingly and intelligently waived.   His brief argues as though receiving, invoking and waiving Miranda protections are identical issues.   However, the fact a telephone request was denied does not alter the fact Officer Bennett read Larue his rights before interrogation began.   The trial court's findings clearly indicate the distinction.   It found a violation of Larue's statutory right to use the telephone and also effective warnings and a knowing and intelligent waiver.   As People v. Randall, supra, 1 Cal.3d 948, 83 Cal.Rptr. 658, 464 P.2d 114, states at page 954, 83 Cal.Rptr. 658, 464 P.2d 114, the appellate court must “accept that version of events which is most favorable to the People, to the extent that it is supported by the record.”   These findings are supported by the record.5

 Larue finally contends the statement made to Officer Bennett was not voluntary.   Regarding a confession, the prosecution has the burden to prove beyond a reasonable doubt a confession is voluntary.  (People v. Jimenez (1978) 21 Cal.3d 595, 602, 147 Cal.Rptr. 172, 580 P.2d 672.)  “A confession is voluntary if the accused's decision to speak is entirely ‘self-motivated’ [citation], i.e., if he freely and voluntarily chooses to speak without ‘any form of compulsion or promise of reward․’ ”  (People v. Thompson (1980) 27 Cal.3d 303, 327–328, 165 Cal.Rptr. 289, 611 P.2d 883.)   If the trial court admits a confession, a reviewing court must make an independent determination of voluntariness by examining the uncontroverted facts;  as to controverted facts, the appellate court must accept the version of fact most favorable to the People to the extent it is supported by the record.   (People v. McClary (1977) 20 Cal.3d 218, 227, 142 Cal.Rptr. 163, 571 P.2d 620.)

 In the present case, the voluntariness of Larue's statement was directly controverted.   The trial court considered the opposing testimony of Larue and Officer Bennett, and concluded Larue's statement was voluntary.   Larue admitted hearing the officer read something to him from a piece of paper.   He testified he had no memory of hearing the Miranda warning.   On the other hand, Bennett emphatically testified he read Larue his rights without any coercion or inducements, and Larue indicated a willingness to discuss his case.

The precise issue of whether a denial of a telephone call created coercion was addressed in People v. Stoner (1962) 205 Cal.App.2d 108, 22 Cal.Rptr. 718, reversed on other grounds sub nom Stoner v. California (1964) 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856.   The court indicated no coercion existed;  but if it did exist, it was coercion to wait to use the telephone and not coercion to speak with an officer.   The court suggested as incredulous “that defendant would involuntarily confess to a crime merely because he was required to wait before making a telephone call.”  (People v. Stoner, supra, 205 Cal.App.2d at p. 115, 22 Cal.Rptr. 718.)

 Larue argues the court made the determination of voluntariness without considering the circumstance of the section 851.5 statutory violation.   This simply is factually not true.6  On an independent determination and consideration of the whole record, this court agrees with the trial court that the statement was voluntary.

 Even if we found otherwise, reversal is not automatically required because the statement is not a confession.   Rather, it is an admission.   This distinction between a confession and an admission is important.   An involuntary confession is prejudicial per se, but an involuntary admission is prejudicial unless the People prove beyond a reasonable doubt the error complained of did not contribute to the verdict.   (People v. McClary, supra, 20 Cal.3d 218, 230, 142 Cal.Rptr. 163, 571 P.2d 620.)   As discussed previously, the effect of the admission on the jury was nil.   Even though it was partially used for impeachment, the jury apparently believed Larue's testimony.   It was Larue's own testimony to the effect he used excessive force in defending himself that brought about the assault conviction.   Therefore, Larue's admission, even if found involuntary, did not contribute to the verdict.

Judgment affirmed.


1.   All references are to the Penal Code unless otherwise specified.

2.   Section 851.5 provides:“(a) Immediately upon being booked, and, except where physically impossible, no later than three hours after arrest, an arrested person has the right to make at least two completed telephone calls, as described in subdivision (b).“The arrested person shall be entitled to make at least two such calls at no expense if the calls are completed to telephone numbers within the local calling area.“(b) At any police facility or place where an arrestee is detained, a sign containing the following information in bold block type shall be posted in a conspicuous place:“That the arrestee has the right to free telephone calls within the local dialing area, or at his own expense if outside the local area, to two of the following:“(1) An attorney of his choice or, if he has no funds, the public defender or other attorney assigned by the court to assist indigents, whose telephone number shall be posted.   This phone call shall not be monitored, eavesdropped upon, or recorded.“(2) A bail bondsman.“(3) A relative or other person.“(c) These telephone calls shall be given immediately upon request, or as soon as practicable.“(d) This provision shall not abrogate a law enforcement officer's duty to advise a suspect of his right to counsel or of any other right.“(e) Any public officer or employee who willfully deprives an arrested person of any right granted by this section is guilty of a misdemeanor.”

3.   Larue suggests the “harmless beyond a reasonable doubt” rule of Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, may be the correct standard.  Chapman concerns the appellate review standard for the introduction of evidence following a constitutional violation (ibid.).   The issue in this case involves the appellate standard for the introduction into evidence of appellant's admission following a state statutory violation.   Under either the Chapman standard or the standard of People v. Watson, supra, Larue's statement had no prejudicial effect on his assault conviction and was harmless beyond a reasonable doubt.

4.   The trial judge stated:  “But the courts have not indicated that the Miranda consequence (exclusion) should be extended to a violation of the statutory right.   We do not have a defendant here who was or has indicated he was confused by the suggestion of a denial of a phone call, and then a conversation with an officer that I find occurred where the officer advised him of his right to contact, and I'm underlining the word contact, an an [sic] attorney and therefore I feel that to grant the relief requested that is to say suppress, would be inappropriate.”

5.   In making these findings, the trial court considered the testimony of Officer Bennett who testified he read Larue his Miranda warnings.   He also testified to other facts from which it is clear Larue's statements were uncoerced and voluntary.   The court also heard testimony from Larue to the effect that he did not recall being advised of or waiving his Miranda rights although he did recall Officer Bennett reading something to him from a paper.   The court concluded “beyond a reasonable doubt and to a moral certainty that the defendant was advised of his constitutional rights and freely and voluntarily waived those rights before speaking with the officer.”

6.   A court is required to consider the effect of a statutory violation on the voluntariness of a confession.   The violation is one factor to be considered and is not determinative.  (People v. Thompson, supra, 27 Cal.3d 303, 329, 165 Cal.Rptr. 289, 611 P.2d 883.)   Before ruling on voluntariness, the court heard testimony of both Larue and Officer Bennett.   In the paragraph of the transcript where the court found voluntariness, the judge referenced section 851.5 three times.   In fact, he states, “I find certainly by a preponderance of the evidence, that the defendant's rights under 851.5 appear to have been violated.”   The court reaffirmed its findings of voluntariness after it heard argument concerning the effect of the section 851.5 violation.

COLOGNE, Associate Justice.

GERALD BROWN, P. J., and STANIFORTH, J., concur. Hearing denied; KAUS, J. did not participate.