PEOPLE v. DOTSON

Reset A A Font size: Print

Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Ricky R. DOTSON, Defendant and Appellant.

AO11206.

Decided: June 22, 1983

Quin Denvir, State Public Defender, George L. Schraer, Deputy State Public Defender, San Francisco, for defendant and appellant. John W. Van De Kamp, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Gloria F. DeHart, Kristofer Jorstad, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Ricky R. Dotson appeals from a judgment of life imprisonment without possibility of parole after a jury found him guilty of first degree murder (Pen.Code, § 187) accompanied by special circumstances.1

On the morning of December 15, 1978, W.E. Krueger had breakfast with his wife Eliza.   Mrs. Krueger, 81 years old, was confined to a wheelchair.   Mr. Krueger left as usual for work and locked the door.   Shortly thereafter, appellant Dotson and one Dennis Thomas broke into the Krueger house.   Appellant, relying upon information received from a friend, was particularly looking for money and for diamonds in the Krueger residence.

Eliza Krueger was sitting in a wheelchair when the two entered;  she wrote frantically upon a tablet and started screaming.   The two men then took her out of the chair (appellant holding her feet) and put her in the hall.   Thomas tied her hands with a cord and hit her repeatedly.   Afterwards, the two ransacked the house in search of valuables.

While Thomas was beating the victim, appellant was “watching out” to see if someone was coming.   Appellant got some of the victim's blood on his clothing;  he later threw the stained clothing away so that no evidence would be found.   He also used a glove which he found in the house to try to wipe away his fingerprints.

Mr. Krueger returned to his house at about 6:45 p.m. and found his wife dead in the hall.   There was a rope around her neck, and both her hands and feet were bound.   The autopsy surgeon testified that the victim's ankles had been tied with two neckties and that her hands had been bound behind her back with webbed belting.   Her attacker beat her about her head and neck and broke four ribs before strangling her to death with his hands and with a cloth ligature dropped around her neck and tied in a granny knot.

Appellant and Dennis Thomas both left their fingerprints at the crime scene.

I

 Appellant argues that under Hovey v. Superior Court (1980) 28 Cal.3d 1, 168 Cal.Rptr. 128, 616 P.2d 1301, the trial court committed reversible error when it failed to conduct that portion of jury voir dire dealing with death individually and in sequestration.   In Hovey, the Supreme Court held that “in future capital cases that portion of the voir dire of each prospective juror which deals with issues which involve death-qualifying the jury should be done individually and in sequestration.”  (Id., at p. 80, 168 Cal.Rptr. 128, 616 P.2d 1301.)   The court explained that its decision was based on its supervisory authority over California criminal procedure, in order to minimize potentially prejudicial effects.  (Id.)

Appellant now asks us to accord retroactivity to the Hovey rule;  that we cannot do, as the Supreme Court explicitly stated that the rule will only apply to future capital cases.  (Id., at p. 80, 168 Cal.Rptr. 128, 616 P.2d 1301.)

II

 Appellant next argues that the findings of special circumstances on the murder count must be stricken since the special circumstances were not put before the magistrate at a preliminary examination.   He argues that a violation of due process occurs when special circumstances are not charged in the complaint, as a defendant is denied his right to a preliminary factual determination of the sufficiency of the evidence of special circumstances.

In Jones v. Superior Court (1971) 4 Cal.3d 660, 94 Cal.Rptr. 289, 483 P.2d 1241, the Supreme Court noted that the prosecutor may file “an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed.”   (Pen.Code, § 739.)   At the same time, the court recognized that “a literal construction of section 739 would bring it into conflict with the constitutional mandate which ‘protects a person from prosecution in the absence of a prior determination by either a magistrate or a grand jury that such action is justified.’ ”  (Jones v. Superior Court, supra, 4 Cal.3d 660, 664, 94 Cal.Rptr. 289, 483 P.2d 1241.)  “Accordingly, the rule has developed that an information which charges the commission of an offense not named in the commitment order will not be upheld unless (1) the evidence before the magistrate shows that such offense was committed ․ and (2) that the offense ‘arose out of the transaction which was the basis for the commitment’ on a related offense.”  (Id., at pp. 664–665, 94 Cal.Rptr. 289, 483 P.2d 1241.)   The Jones standards are met by the present case.

Appellant's claim that he was denied due process is disposed of by People v. Donnell (1976) 65 Cal.App.3d 227, 135 Cal.Rptr. 217.   In Donnell, the complaint filed before the preliminary hearing charged defendants with receiving stolen property.   The information filed after the preliminary hearing, however, charged them both with robbery.   The court held this to be proper, noting that the robbery and receiving counts arose out of the same transaction.   The court addressed the issue of informing a defendant of the potential charges he may have to face in superior court, remarking “this type of ‘notice of proof’ may on occasion genuinely surprise an accused.   If, in such a case, a defendant does wish to mount a defense against an unanticipated crime, his first remedy is to ask for a continuance to enable him to gather his forces.”  (Id., at p. 233, 135 Cal.Rptr. 217.)   The court recognized, however, that cases may arise where an uncharged offense, though transactionally related to a charged one and incidentally proved at the preliminary hearing, is so hidden from perception that a claim of being misled may have some substance.   The present case, like Donnell, presents no such camouflaged charge.   The prosecution offered strong evidence, at the preliminary hearing, that the victim was killed during the course of a burglary and robbery.   Appellant could have put on a defense with respect to those offenses but chose not to.   The fact that crimes charged at the preliminary examination were used as the basis of a post-preliminary amendment alleging special circumstances did not deprive appellant of fair notice of the charges against him.

III

 Appellant claims that a finding of special circumstances may be returned only against the person who actually causes the victim's death, and that to the extent that a broader rule is authorized by statute, that statute must be declared unconstitutional.   His specific contention is that the statute governing special circumstances (Pen.Code, § 190.2, subd. (b)) violates the prohibition against cruel and unusual punishment (U.S. Const., 8th Amend.;  Cal. Const., art. I, § 17), and denies equal protection (U.S. Const., 14th Amend.;  Cal. Const., art. I, § 7).

At the outset, we must determine whether appellant, who was not sentenced to the death penalty, has standing to challenge the constitutionality of the special circumstances statute.  “[O]ne will not be heard to attack a statute on grounds that are not shown to be applicable to himself and ․ a court will not consider every conceivable situation which might arise under the language of the statute and will not consider the question of constitutionality with reference to hypothetical situations.”  (In re Cregler (1961) 56 Cal.2d 308, 313, 14 Cal.Rptr. 289, 363 P.2d 305;  see also Rubio v. Superior Court (1979) 24 Cal.3d 93, 103, 154 Cal.Rptr. 734, 593 P.2d 595.)   In the present case, while appellant may at one time have faced the death penalty, he was sentenced to life in prison without possibility of parole.   Accordingly, his challenge here is restricted to the propriety of the latter sentence;  as to that challenge appellant does have standing.

 Appellant argues that someone who does not personally cause the death of the victim should not be subjected to the enhanced penalties imposed by virtue of the law of special circumstances.   His argument goes to the constitutionality of penalizing an accomplice or one who aids and abets, equally with the actual perpetrator of the crime.   The question then is whether it is permissible to punish an accomplice the same as the actor when that punishment is severe.

Under California law, “[t]he distinction between an accessory before the fact and a principal, and between principals in the first and second degree is abrogated․”  (Pen.Code, § 971.)   The statute “expresses a legislative intent to abolish the distinctions made at common law as to the various types of participants in the commission of a crime and to make all of them subject to the same procedural and substantive limitations.”  (Bompensiero v. Superior Court (1955) 44 Cal.2d 178, 186, 281 P.2d 250.)   Numerous cases have upheld the convictions of those who aided and abetted the perpetrator of various crimes.   Thus, in People v. Le Grant (1946) 76 Cal.App.2d 148, 172 P.2d 554, the owner of a car was properly convicted of manslaughter where he helped his passenger kill the victim by holding back others who might have interfered to prevent the homicide.  (See also People v. Grischott (1951) 107 Cal.App.2d 631, 237 P.2d 712 [defendant properly convicted of burglary where he drove codefendants to stores and returned to pick them up];  People v. Silva (1956) 143 Cal.App.2d 162, 169, 300 P.2d 25 [defendant properly convicted of robbery where he was lookout and driver of getaway car].)  In speaking of the culpability of one who aids and abets, the court in People v. Vasquez (1972) 29 Cal.App.3d 81, 87, 105 Cal.Rptr. 181, noted that “[h]e may so aid and assist with knowledge or awareness of the wrongful purpose of the perpetrator [citations] or he may so act because he has the same evil intent as the perpetrator.  [Citations.]  In either situation, under Penal Code section 31, he is as culpable as the actual perpetrator.”

Punishment is cruel and unusual when it is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.”  (In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 503 P.2d 921.)   The Legislature has determined that the same culpability attaches to both the actor and those who aid and abet his acts.   Specifically with respect to the present offense, the degree of danger presented to society by one who assists another to commit murder, makes it clear that the sentence is not disproportionate.

IV

 Appellant further attacks the special circumstances statute in that it does not require that the homicide in the course of the listed felonies be intentional.   He notes that the jury in the instant case was instructed that the special circumstances allegations could be found to be true if the “murder” (which would include felony murder) was found to have been committed during the commission of or flight after the burglary and robbery.   He argues that this permits the imposition of a punishment for accidental and negligent killings that is so disproportionate as to be cruel and unusual.   That contention has been upheld by the Supreme Court of the United States with respect to the death penalty.  (Enmund v. Florida (1982) 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140.)   But appellant's challenge is limited to the propriety of his sentence of life in prison without possibility of parole.   That penalty is not constitutionally disproportionate for kidnapping to commit robbery with bodily harm.  (See People v. McKinney (1979) 95 Cal.App.3d 712, 746, 157 Cal.Rptr. 414;  People v. Isitt (1976) 55 Cal.App.3d 23, 27–32, 127 Cal.Rptr. 279.)   Still less is it disproportionate when the victim dies, bringing into play the felony murder rule.   The penalty is not constitutionally improper in this case.

 Appellant has also claimed that the punishment of life imprisonment without possibility of parole is unconstitutional on its face as section 190.2 does not permit a defendant to present evidence which could mitigate his sentence to one allowing parole.   Appellant has provided this court with no argument or authorities on this point but has merely noted that the question is currently pending before the California Supreme Court in several cases.  “Where a point is merely asserted by counsel without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion.”  (People v. Ham (1970) 7 Cal.App.3d 768, 783, 86 Cal.Rptr. 906, dis. on other grounds People v. Compton (1971) 6 Cal.3d 55, 98 Cal.Rptr. 217, 490 P.2d 537;  see also People v. Wong (1973) 35 Cal.App.3d 812, 824–825, 111 Cal.Rptr. 314;  People v. Simms (1970) 10 Cal.App.3d 299, 313, 89 Cal.Rptr. 1;  People v. Arauz (1970) 5 Cal.App.3d 523, 529–530, 85 Cal.Rptr. 266, dis. on other grounds People v. Chi Ko Wong (1976) 18 Cal.3d 698, 135 Cal.Rptr. 392, 557 P.2d 976.)   A mere incorporation by reference of arguments advanced elsewhere, even in previous proceedings in the same case, does not satisfy an appellant's duty to support fully with appropriate factual and legal argument each contention raised on appeal.  (See People v. McRae (1967) 256 Cal.App.2d 95, 103, 63 Cal.Rptr. 854.)   Obviously, this principle carries even greater weight where, as here, the claim raised but not argued in the appellate briefs has been litigated in entirely separate cases pending before a different forum.   The importance of the constitutional question which appellant so obliquely raises convinces us that it would be prudent to adhere to traditional standards of appellate review here.   The parties have never fully litigated before this court this particular challenge to the constitutionality of the sentence.   As we are not obliged to do so, we decline to reach this question.   Should the Supreme Court ultimately declare section 190.2 constitutionally infirm on this or another ground, appellant may of course seek collateral relief from his sentence through a petition for habeas corpus.

V

Appellant argues that the court erred when it failed to exclude testimony concerning three statements he made to the police;  one was a taped confession which was played to the jury.   The court admitted the statements in evidence, finding that they “were in fact given freely and voluntarily, and after [appellant] had been intelligently apprised and understandably apprised of his constitutional rights and that he did in fact understand those rights and that he made a knowing and intelligent waiver of those rights.”   Appellant contends that his detention was illegal, under the statute mandating prompt arraignment (Pen.Code, § 825), and that this factor indicates that the statements were not voluntary.

Sergeant Sitterud arrested appellant at 7:10 a.m. on December 29, 1978.   The sergeant told accompanying officers to take appellant to the police station and refrain from questioning him while Sitterud remained and executed a search warrant.   Sitterud specifically told these officers not to book appellant.   Sitterud then searched appellant's house pursuant to a warrant and returned to the police department, arriving at 8:30.

At 8:40 a.m., he advised appellant of his rights and obtained a waiver.   He then took a statement which was reduced to writing and signed by appellant.   It was a denial of going to the Krueger house.   At 10 a.m., Sergeant Sitterud confronted appellant with evidence that appellant's fingerprints matched those found at the Krueger home.   Appellant then admitted that he and Dennis Thomas had been responsible for the incident.   Appellant made another statement—this one taped—from 10:30 to 10:55 a.m.

In response to questions as to why he did not take appellant before a magistrate the moment he arrived at the police station, Sergeant Sitterud explained that he was attempting to get “as much of the truth ․ as I could and give him the opportunity to give me a statement in the investigation.”   At another point the sergeant remarked that he wanted to talk to appellant before he was booked “to see if he would give me a statement regarding the murder investigation.”   Further, Sitterud was aware that in the Oakland Judicial District there are magistrates available to arraign defendants at all times.

By statute, “[t]he defendant must in all cases be taken before the magistrate without unnecessary delay, and, in any event, within two days after his arrest, excluding Sundays and holidays․”  (Pen.Code, § 825.)   In People v. Pettingill (1978) 21 Cal.3d 231, 145 Cal.Rptr. 861, 578 P.2d 108, the court reiterated that section 825 does not authorize even a two-day detention in all cases, “ ‘but, instead, places a limit upon what may be considered a necessary delay, and a detention of less than two days, if unreasonable under the circumstances, is in violation of the statute.’  [Citation.]”  (21 Cal.3d at p. 243, 145 Cal.Rptr. 861, 578 P.2d 108.)   The Pettingill court further noted that any unnecessary delay by the police is “ ‘patently illegal,’ ” and such illegality is not lessened by the fact that similar conduct is not unusual or makes the work of the police or district attorney easier.  (Id.)  However, “[a] delay which is occasioned by the conscientious performance of police and which is utilized for the purposes of clerical and administrative needs and not solely for the purpose of eliciting damaging statements from the accused is not an unreasonable delay.”  (People v. Johnson (1978) 85 Cal.App.3d 684, 689, 149 Cal.Rptr. 661;  see also People v. Thompson (1980) 27 Cal.3d 303, 329, 165 Cal.Rptr. 289, 611 P.2d 883 [statute does not authorize a two-day delay in all cases, and there is no authority to delay arraignment for the purpose of investigating the case].)

 In the present case, the police officer admitted that he directed the other officers not to book appellant because he wanted to see if appellant would give him a statement regarding the murder.   Sergeant Sitterud testified that he thought appellant's first statement was false and decided to confront appellant with the evidence he already had—which led to the taped statement.   Even though appellant was arrested at 7:10 a.m. and his conversations with the police occurred between 8:40 a.m. and 10:55 a.m., the delay for the stated purpose was unreasonable.

 In California, a confession obtained during an unnecessary delay in arraignment is not “ipso facto inadmissible.”  (People v. Pettingill, supra, 21 Cal.3d 231, 244, 145 Cal.Rptr. 861, 578 P.2d 108;  Rogers v. Superior Court (1955) 46 Cal.2d 3, 10, 291 P.2d 929.)   The Supreme Court has most recently articulated the standards governing examination of the consequences of a violation of section 825 in People v. Thompson, supra, 27 Cal.3d 303, 165 Cal.Rptr. 289, 611 P.2d 883:  “However, even if a confession occurs during a period of illegal detention under section 825, that fact does not render it inadmissible.   A delay in arraignment is treated ‘as only one of the factors to be considered in determining whether the statement was voluntarily made.’  [Citations.]  To exclude the statement, the defendant must show that ‘the illegal detention produced the admissions' or that there was an ‘essential connection between the illegal detention and the confession.’ ”  (Id., at pp. 329–330, 165 Cal.Rptr. 289, 611 P.2d 883.)   The first two sentences of this passage restate the established rule that voluntariness determines the admissibility of a confession obtained during an unlawful delay.  (People v. Haydel (1974) 12 Cal.3d 190, 199, 115 Cal.Rptr. 394, 524 P.2d 866;  People v. Kendrick (1961) 56 Cal.2d 71, 83–84, 14 Cal.Rptr. 13, 363 P.2d 13;  Rogers v. Superior Court, supra, 46 Cal.2d 3, 10, 291 P.2d 929.)   We must now consider whether, by its discussion in the final sentence of “an essential connection” between the delay and confession, Thompson formulates an alternative test for exclusion of confessions or merely explicates further the voluntariness analysis.   We conclude that voluntariness remains the applicable test;  the latter statements in Thompson provide guidance to courts in weighing the unlawful detention “factor” in the overall voluntariness determination.

The source of the “essential connection” language in Thompson is Rogers v. Superior Court, supra, 46 Cal.2d 3, 291 P.2d 929.   In that case the Supreme Court expressly declined to alter in light of McNabb v. United States (1943) 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, the rule that voluntariness, considered under “all the circumstances” determines admissibility:  “There is a basic distinction between evidence seized in violation of the search and seizure provisions of the Constitution of the United States and the Constitution of California and the laws enacted thereunder, and voluntary statements made during a period of illegal detention.   It may be true, as petitioner contends, that had he been arraigned within 48 hours and advised of his rights, he would not have volunteered to say anything.  [Citations.]  Nevertheless, there is lacking the essential connection between the illegal detention and the voluntary statements made during that detention that there is between the illegal search and the evidence obtained thereby, or between the coercion and the confession induced thereby.   The voluntary admission is not a necessary product of the illegal detention;  the evidence obtained by an illegal search or by a coerced confession is the necessary product of the search or of the coercion.   When questioned by arresting officers a suspect may remain silent or make only such statements as serve his interest;  the victim of an illegal search, however, has no opportunity to select the items to be taken by the rummaging officer [citations], and the victim of a coerced confession has been deprived of any choice.”  (Rogers v. Superior Court, supra, 46 Cal.2d 3, 10–11, 291 P.2d 929.)   Under Rogers, exclusion is required where “the illegal detention produced the admissions․”  (Id., at p. 11, 291 P.2d 929.)   The “essential connection” which is fatal to admissibility is a causal connection between the delay in arraignment and the confession.  Thompson, through the language drawn from Rogers, restates the voluntariness test;  it does not, by a legal sleight of hand, repudiate the holding of Rogers.

 The California case law does not address the standard of appellate review of a trial court's determination on this subject.   California courts, following precedents of the U.S. Supreme Court, exercise independent judgment in determining whether a confession is voluntary for due process purposes.  (See People v. Sanchez (1969) 70 Cal.2d 562, 571–572, 75 Cal.Rptr. 642, 451 P.2d 74, cert. den. 394 U.S. 1025, 89 S.Ct. 1646, 23 L.Ed.2d 743, citing Greenwald v. Wisconsin (1968) 390 U.S. 519, 88 S.Ct. 1152, 20 L.Ed.2d 77;  Clewis v. Texas (1967) 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423;  Davis v. North Carolina (1966) 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895.)   However, a trial court's resolution of a Miranda 2 issue—also a question of “voluntariness”—is reversible only if “palpably erroneous.” 3  (In re Eric J. (1979) 25 Cal.3d 522, 527, 159 Cal.Rptr. 317, 601 P.2d 549.)   We believe the latter standard is more appropriate to the review of whether a confession is a “necessary product” of a violation of section 825.   The existence of a causal or “essential connection” between an unnecessary delay and a confession is, like the matters commonly involved in Miranda determinations, basically a question of fact.   The legislative purposes of the statute are identical to those underlying Mi randa —protection of a defendant's right to counsel and privilege against self-incrimination through establishment of clear rules of police conduct.   (See People v. Powell (1967) 67 Cal.2d 32, 60, 59 Cal.Rptr. 817, 429 P.2d 137.)

 The federal courts have applied a standard similar to the “palpably erroneous” test to trial court determination of voluntariness under 18 United States Code section 3501, the federal counterpart to section 825.   Through section 3501 Congress abrogated the rule of ipso facto inadmissibility developed in McNabb, supra, and Mallory v. United States (1957) 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479, and directed trial courts to determine voluntariness under the totality of circumstances.  (See United States v. Van Lufkins (8th Cir.1982) 676 F.2d 1189, 1192–1193.)   Any such determination will be upheld by the reviewing court unless “clearly erroneous.”  (United States v. Gorel (5th Cir.1979) 622 F.2d 100, 104–105, cert. den. (1980) 445 U.S. 943, 100 S.Ct. 1340, 63 L.Ed.2d 777;  United States v. Hernandez (5th Cir.1978) 574 F.2d 1362, 1370, fn. 17;  United States v. DiGilio (3d Cir.1976) 538 F.2d 972, 986, cert. den. sub nom. Lupo v. United States (1977) 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749.)

In the instant case, the question is a close one.   The very purpose of the delay in arraignment, unlike that in Thompson, was a proscribed one.   Sergeant Sitterud admitted that he deferred booking appellant in order to continue the interrogation and obtain a truthful statement.  (Compare People v. Thompson, supra, 27 Cal.3d 303, 330, 165 Cal.Rptr. 289, 611 P.2d 883;  People v. Cook (1982) 135 Cal.App.3d 785, 792–793, 185 Cal.Rptr. 576.)   As the police did not book and bring appellant before a magistrate as expeditiously as feasible, the delay violated section 825.   Nonetheless, the period of detention was not especially long.   Appellant confessed three hours after his arrest at his residence and only one and a half hours after the initial interrogation at the police station.   Courts have found that considerably longer periods of detention were not so inherently coercive as to vitiate the voluntariness of defendants' admissions.  (People v. Deutschman (1972) 23 Cal.App.3d 559, 100 Cal.Rptr. 330;  People v. Lee (1970) 3 Cal.App.3d 514, 521–524, 83 Cal.Rptr. 715;  see also United States v. Shoemaker (10th Cir.1976) 542 F.2d 561, 563, cert. den. 429 U.S. 1004, 97 S.Ct. 537, 50 L.Ed.2d 616.)   The police employed no improper interrogation techniques.   Sergeant Sitterud read appellant his Miranda rights and appellant said he wished to talk.   No threats or promises were made.   Before the second conversation, where appellant implicated himself, the officers again reminded appellant of his rights, and after being confronted with the fingerprint report, appellant said that he wished to tell the truth.  (See People v. Lee, supra, 3 Cal.App.3d 514, 523, 83 Cal.Rptr. 715;  United States v. Shoemaker, supra, 542 F.2d 561, 563.)   Implicit in the trial court's finding of voluntariness is its determination that the delay did not “produce” the confession.   On this record we cannot conclude that that finding was “clearly” or “palpably” erroneous.

VI

 Appellant contends that the trial court erred when it failed to instruct the jury sua sponte that an assault by means of force likely to produce great bodily injury is a lesser included offense of robbery.

Appellant points out that when robbery is charged with an allegation of firearm use, the offense of assault with a deadly weapon is a lesser included offense within the robbery, and the trial court must instruct sua sponte on assault with a deadly weapon.  (People v. McGreen (1980) 107 Cal.App.3d 504, 512, 166 Cal.Rptr. 360.)   He reasons from this that an assault by means of force likely to produce great bodily injury also is a lesser included offense of robbery.   This argument cannot be sustained.   In McGreen, the court noted that “the question of a lesser included offense may arise in one of two ways:  either, as a matter of law, the lesser offense is included in the greater offense charged or when the charge as actually pleaded necessarily includes the lesser offense.”  (107 Cal.App.3d at p. 509, 166 Cal.Rptr. 360;  emphasis in original.)   Nowhere in the second amended information is appellant charged with assault by means of force likely to produce great bodily harm.   Thus, we must determine whether, as a matter of law, assault by means of force likely to produce great bodily injury is a lesser included offense of robbery.   It is settled that “assault with a deadly weapon is not, as a matter of law, a lesser included offense of robbery.”  (Id.;  emphasis in original.)   It follows that assault by means of force likely to produce great bodily injury is similarly not an offense necessarily included in robbery.   The most that can be said is that simple assault is necessarily included in robbery.   The trial court properly instructed the jury.

VII

 Appellant contends that his first degree murder conviction was based on an unsound felony murder theory.   He argues that the rule should be invalidated as a matter of judicial policy, and that it violates due process and equal protection guarantees.   These contentions cannot be accepted by an intermediate appellate court.  (People v. Terrill (1979) 98 Cal.App.3d 291, 305, 159 Cal.Rptr. 360.)   The California Supreme Court has applied the felony-murder doctrine on numerous occasions, and the present challenge may appropriately be addressed to that court.  (People v. Ramos (1982) 30 Cal.3d 553, 589–590, 180 Cal.Rptr. 266, 639 P.2d 908, cert. granted 459 U.S. 821, 103 S.Ct. 49, 74 L.Ed.2d 56.)

VIII

 Appellant argues that reversal as to the findings of special circumstances is mandated because the trial court failed to define “accomplice” as used in Penal Code section 190.2, subd. (a)(17)(i) and (vii).   His argument is that since the verdicts on the special circumstances do not make clear whether the jury found appellant to be “engaged in” the robbery and burglary or to be an accomplice to those crimes, it is possible that the jury's finding of special circumstances was based on a misunderstanding of the term “accomplice.”

“It is not necessary to instruct jurors on the meaning of words in common usage which are presumed to be within the understanding of a person of ordinary intelligence․  [¶] On the other hand, a word of technical or specialized meaning which is used in the statutory definition of an offense should be defined or explained, since this usually constitutes an element of the offense.”  (Witkin, Cal. Criminal Procedure, § 481, p. 487.)   The word “accomplice” in the present case falls within this latter category and should have been defined.  (See People v. Ponce (1950) 96 Cal.App.2d 327, 331, 215 P.2d 75 [judge instructed that defendant was not liable unless he “aided and abetted,” but failed to define “aid” and “abet”;  held these terms should have been defined].)

 The court erred when it failed to define “accomplice,” but unless this error resulted in a miscarriage of justice, reversal is not justified.   (Cal. Const., art. VI, § 13.)   Unless it appears reasonably likely that appellant would have obtained a more favorable verdict had the court defined the term “accomplice,” the findings of special circumstances must be sustained.  (People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.)   In the present case the jury found appellant guilty of burglary (Pen.Code, § 459) and acquitted him of robbery (Pen.Code, § 211).   The jury also found him guilty of the murder of Eliza Krueger.   Given the facts of this case, it is impossible to believe that the same jury which found that appellant committed a burglary and murder would not also have found that the murder was committed while appellant was “engaged in ․ the commission of ․ or the immediate flight after committing ․ (vii) Burglary․”  (Pen.Code, § 190.2, subd. (a)(17).)   Accordingly, the error was not prejudicial as to the burglary special circumstances.   As to the robbery special circumstance, the contention has merit, as the jury found appellant not guilty of that offense.

After the pronouncement of judgment in the present case, the Supreme Court held that it lies within the discretionary power of the trial judge to strike a finding of special circumstances in order to exempt the murder defendant from the penalty of death or of life imprisonment without possibility of parole.   (People v. Williams (1981) 30 Cal.3d 470, 477–490, 179 Cal.Rptr. 443, 637 P.2d 1029.)   The record of the pronouncement of judgment affords no basis for determining whether the judge would have considered striking the special circumstances findings if he had been aware that he had discretionary power to do so.   Remand for sentencing is therefore necessary.

The judgment is modified by deleting the finding on the robbery special circumstance.   The cause is remanded to the trial court with directions to consider whether, in the exercise of discretion, the other finding of special circumstances should be stricken.

I respectfully dissent.

The question presented in stark terms by this case is whether the fundamental constitutional right of an arrested person to “be taken without unnecessary delay before a magistrate” (Cal. Const., art. 1, § 14;  Pen.Code, § 825) 1 really means anything in the face of willful, deliberate, premeditated and successful police efforts to deny that right.   I think it does.

At 7:10 a.m., on Friday, December 29, 1978, Sergeant Michael Sitterud of the Oakland Police Department arrested appellant pursuant to an arrest warrant which he had obtained on the basis of his affidavit that the fingerprints taken at the crime scene had been identified as appellant's.   He then directed Officers Gingerly and Politzer to transport appellant to the interrogation room of the Oakland Police Department and to keep him incommunicado without booking him.   The sergeant knew that if appellant had been booked into the jail—as Oakland police procedure mandated—he would have been immediately allowed to make telephone calls, the public defender would have been immediately notified, and arraignment would have followed.

Sergeant Sitterud also knew that California law required prompt arraignment of arrested persons and that magistrates were available for this purpose on the same floor—150 feet away from where the questioning was taking place.   But Sergeant Sitterud “wanted to see if he would give me a statement regarding the murder investigation.”

Two hours after the arrest, the sergeant was disappointed:  the first statement he obtained from appellant was not helpful because appellant denied complicity.   During the questioning appellant was given Miranda 2 warnings but he was not free to make telephone calls.

One hour later the sergeant accomplished what he had been hoping for:  after being confronted with fingerprint reports, appellant confessed.

Most of the principal purposes for requiring promptness in arraignment jump out from the facts of this case:  the prevention of secret police interrogation, providing one accused of crime with full advice as to his rights and an opportunity to have counsel appointed, and allowing him to apply for bail or for habeas corpus when necessary.  (People v. Powell (1967) 67 Cal.2d 32, 60, 59 Cal.Rptr. 817, 429 P.2d 137.)   For obvious reasons, no one here has the temerity to argue that the deliberate delay of arraignment was “necessary.”  (People v. Thompson (1980) 27 Cal.3d 303, 329, 165 Cal.Rptr. 289, 611 P.2d 883.)

When a defendant makes statements to the police during a period of unnecessary delay before arraignment he has two ways to exclude such statements at trial.   He can attack the confession as being involuntary, in which case the illegal detention is “only one of the factors to be considered in determining whether the statement was voluntarily made.”   That was the test “ordinarily” used by state courts to determine the voluntariness of a confession prior to McNabb v. United States (1943) 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819.  (Rogers v. Superior Court (1955) 46 Cal.2d 3, 10, 291 P.2d 929.)   It continues to be a valid test.3  (People v. Thompson, supra, 27 Cal.3d at p. 329, 165 Cal.Rptr. 289, 611 P.2d 883.)   It is not involved in the instant case.

 A distinctly different alternative attack, first discussed in Rogers, was recently reaffirmed in People v. Thompson:  “To exclude the statement, the defendant must show that ‘the illegal detention produced the admissions' or that there was an ‘essential connection between the illegal detention and the confession.’  [Citations.]”  (Id., supra, 27 Cal.3d at pp. 329–330, 165 Cal.Rptr. 289, 611 P.2d 883.)   In such a challenge it is not enough for a defendant to show illegal detention caused by police inadvertence, negligence, laziness or the like.   Instead, he must prove deliberate police illegality engaged in for the purpose of obtaining a statement;  to use the phraseology of the Supreme Court in Rogers:  he must prove that the detention “was resorted to for the purpose of inducing the admissions ․” 4  (Id., 46 Cal.2d at p. 11, 291 P.2d 929.)

That is exactly what happened here:  knowing they were violating the law the police willfully delayed booking appellant for the purpose of obtaining statements from him.   The officer in charge admits he ordered this illegal delay in arraignment for the sole purpose of inducing the confessions.   Sadly, history as described by Justice Traynor is repeated:  “․ without fear of criminal punishment or other discipline, law enforcement officers, sworn to support the Constitution of the United States and the Constitution of California, frankly admit their deliberate, flagrant acts in violation of both Constitutions and laws enacted thereunder.   It is clearly apparent from their testimony that they casually regard such acts as nothing more than the performance of their ordinary duties for which the city employs and pays them.”  (People v. Cahan (1955) 44 Cal.2d 434, 437–438, 282 P.2d 905.)

Appellant has demonstrated that the illegal detention “produced” the admissions and that there was an “essential connection” between the illegal detention and the confession.   Admission of the illegally produced confessions was therefore error.   However violation of a suspect's right to be taken before a magistrate without unnecessary delay does not require reversal “unless he shows that through such wrongful conduct he was deprived of a fair trial or otherwise suffered prejudice as a result thereof.”  (People v. Combes (1961) 56 Cal.2d 135, 142, 14 Cal.Rptr. 4, 363 P.2d 4.)   Appellant has met that burden by showing that the results of that illegality were introduced at his trial.

But, my majority colleagues read Rogers as enunciating that the one and only challenge available is an attack on the voluntariness of the confession taken during the illegal detention.   That reading of Rogers is textually untenable.

Justice Traynor made it clear in Rogers that the petitioner made “no contention in this case that the admissions were involuntary.”  (Id., 46 Cal.2d at p. 10, 291 P.2d 929.)   Instead, the petitioner argued that his voluntary admissions were excludable because they were illegally obtained.   Rogers makes quite clear that “voluntary” admissions or confessions taken during a detention which violates Penal Code section 825, are so excludable but only if it is shown that “the illegal detention produced the admissions”.   (Id., at pp. 10–11, 291 P.2d 929, emphasis added.)   The Supreme Court found that showing had not been made because “[t]he record ․ is devoid of any implication that the detention in this case was resorted to for the purpose of inducing the admissions, ․”  (Ibid.)

Thus in Rogers, the Supreme Court did not dispute—as my majority colleagues here do—that voluntary confessions or admissions are subject to exclusion if taken during a period of detention “resorted to for the purpose of inducing the admissions”, but it found such charges unproved.   It would have been a legal first for the Supreme Court in Rogers to write an opinion on voluntariness in a case where voluntariness was not in issue at a time when the exclusion of involuntary confessions was already well established.  (See, e.g., Justice Traynor's 33-line heavily documented footnote in People v. Cahan, supra, 44 Cal.3d at pp. 441–442, 282 P.2d 905.)   Are we to believe that in writing Rogers in December, Justice Traynor forgot what he had explained that spring?

 So the alternative test—which has nothing whatsoever to do with the voluntariness of a confession—is alive and well and is living in California.5  Its existence and health were recently reaffirmed in People v. Thompson, supra, 27 Cal.3d at pp. 329–330, 165 Cal.Rptr. 289, 611 P.2d 883.

This is then not a “close” case.   Both the law and the facts are clear.   Unless this conviction is reversed, incommunicado detentions without prompt arraignment will be the order of the day because the police will be aware that the giving of a Miranda warning has become a miracle cure for all constitutional illness.   Any incentive the police might otherwise have to avoid violating the constitutional and statutory demands for prompt arraignment is destroyed by the holding in this case.

I would reverse the judgment.6

FOOTNOTES

FOOTNOTE.  

1.   The special circumstances were (1) murder during the commission of a robbery (Pen.Code, § 190.2, subd. (a)(17)(i)) and (2) murder in the commission of a burglary (Pen.Code, § 190.2, subd. (a)(17)(vii)).   Also imposed was a concurrent term of imprisonment for burglary (Pen.Code, § 459).

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

3.   Often, of course, the issues are not so easily categorized and a reviewing court must first examine, under the independent judgment test, whether an alleged Miranda waiver preceding a confession was induced by threats or promises before it can consider the remaining Miranda issues.  (See People v. McClary (1977) 20 Cal.3d 218, 226–227, 142 Cal.Rptr. 163, 571 P.2d 620.)

1.   Article I, section 14 of the California Constitution mandates that persons accused by felony complaint “be taken without unnecessary delay before a magistrate” in the county where the felony is triable.   Penal Code section 825 requires that “[t]he defendant must in all cases be taken before the magistrate without unnecessary delay, and, in any event, within two days after his arrest, excluding Sundays and holidays;  ․”

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

3.   Although the right to a prompt arraignment is called a fundamental right of the arrested person (People v. Powell, supra, 67 Cal.2d at p. 59, 59 Cal.Rptr. 817, 429 P.2d 137), a voluntary confession taken during such a period of illegal detention is not ipso facto inadmissible in California.  (Rogers v. Superior Court, supra, 46 Cal.2d 3, 291 P.2d 929.)   In justifying its refusal to adopt an ipso facto rule, the California Supreme Court found lacking the “essential connection” between a voluntary confession and the detention during which it was elicited that exists between an illegal search and the evidence obtained which serves to justify automatic exclusion.  (Rogers v. Superior Court, supra, 46 Cal.2d at p. 10, 291 P.2d 929.)Those determinations were made ten years before Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, a decision which the California Supreme Court has characterized as “premised on the perception that interrogation of a suspect in police custody is inherently coercive. ”  (People v. Pettingill (1978) 21 Cal.3d 231, 237, 145 Cal.Rptr. 861, 578 P.2d 108, emphasis added.)   Not only is that the California Supreme Court's reading of Miranda, it is also its view as developed in a line of its own cases beginning with People v. Fioritto (1968) 68 Cal.2d 714, 717–720, 68 Cal.Rptr. 817, 441 P.2d 625, and including People v. Ireland (1969) 70 Cal.2d 522, 535–537, 75 Cal.Rptr. 188, 450 P.2d 580;  People v. Randall (1970) 1 Cal.3d 948, 954–958, 83 Cal.Rptr. 658, 464 P.2d 114;  People v. Burton (1971) 6 Cal.3d 375, 381–384, 99 Cal.Rptr. 1, 491 P.2d 793;  People v. Carr (1972) 8 Cal.3d 287, 297, 104 Cal.Rptr. 705, 502 P.2d 513;  People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 412, 118 Cal.Rptr. 617, 530 P.2d 585;  People v. Superior Court (Zolnay) (1975) 15 Cal.3d 729, 735–737, 125 Cal.Rptr. 798, 542 P.2d 1390;  People v. Disbrow (1976) 16 Cal.3d 101, 105–106, 127 Cal.Rptr. 360, 545 P.2d 272;  and People v. Enriquez (1977) 19 Cal.3d 221, 237–238, 137 Cal.Rptr. 171, 561 P.2d 261.   Justice Mosk in his majority opinion in People v. Pettingill, supra, 21 Cal.3d at p. 242, 145 Cal.Rptr. 861, 578 P.2d 108, characterizes this line of cases as being “premised on the perception that ‘the setting of in-custody interrogation’ of a suspect without counsel is inherently coercive.   That setting, with its subtle pressures of unfamiliar surroundings, physical and psychological isolation, and police-dominated atmosphere, remains the same whether the suspect is in custody for three hours or three days.”However, it is unnecessary to determine whether the California Supreme Court has impliedly overruled the underpinning for its previous decision not to apply a rule of automatic exclusion for statements taken during such illegal detentions.   Appellant has demonstrated that his confession must be excluded under existing law established in Rogers v. Superior Court, supra, 46 Cal.2d 3, 291 P.2d 929, and recently reaffirmed in People v. Thompson, supra, 27 Cal.3d 303, 165 Cal.Rptr. 289, 611 P.2d 883.

4.   If this second method of attacking confessions taken during illegal detentions had not been enunciated by the Supreme Court, the illegality of a detention would be irrelevant since under the voluntariness test it is the fact of detention that is relevant, irrespective of its legality or illegality.

5.   The doctrine of due process lives in other courts as well, for example the United States Supreme Court.   Inasmuch as the applicability of the test announced in Rogers v. Superior Court is apparent it is not necessary to explain the equally obvious applicability of the rationale of Brown v. Illinois (1975) 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416;  Dunaway v. New York (1979) 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824;  and Taylor v. Alabama (1982) 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314, but it is worth noting that these cases also destroy the curious notion that Miranda warnings are miracle cures.In both Brown and Dunaway the United States Supreme Court firmly established that the fact that a confession may be voluntary for purposes of the Fifth Amendment, in the sense that Miranda warnings were given and understood, is not by itself sufficient to purge the taint of an illegal detention (in those cases illegal arrests).   In such situations, a finding of voluntariness is merely a threshold requirement for Fourth Amendment analysis.   The reason for this approach is clear:  “[t]he exclusionary rule, ․ when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth.”  (Brown v. Illinois, supra, 422 U.S. at p. 601, 95 S.Ct. at p. 2260.)   If Miranda warnings were viewed as a talisman that cured all Fourth Amendment violations, then the constitutional guarantee against unlawful searches and seizures would be reduced to a mere “ ‘form of words.’ ”  (Brown v. Illinois, supra, 422 U.S. at pp. 602–603, 95 S.Ct. at p. 2261.)

6.   I express no opinion with respect to other issues discussed in the lead opinion.

 CHRISTIAN, Associate Justice.* FN* Under assignment by the Chairperson of the Judicial Council.

CALDECOTT, P.J., concurs.