PEOPLE v. PETTINGHILL (1977)

Subsequent to denial of his motion pursuant to section 1538.5, Penal Code, defendant¹ entered a plea of guilty to two counts of first degree burglary (§ 459, Pen.Code); two additional burglary counts were dismissed. He appeals from the judgment.² The sole issue is the admissibility of defendant's confession.

Between January 23 and February 7, four residential burglaries occurred in Santa Barbara. Among items taken from the Leland Steward residence were three pill containers two of which bore prescription labels in the name of the Stewards filled by a Santa Barbara pharmacist.

Around 10 p. m. on February 7 defendant and Michael Bubb were arrested in Eureka by Eureka police in a residential garage owned by a Mr. Jenkins under circumstances indicating they had just committed a burglary. After placing them in the police vehicle, Officer Berry was directed by a neighbor to a 1964 Ford Galaxy from which he had seen the men leave; therein were Mary Ann Bubb and Georgene Elley lying on the seats; they were arrested for burglary; a search of the vehicle disclosed the Stewards' two plastic pill containers bearing prescriptions filled by a Santa Barbara pharmacist which Georgene claimed had been given to her by a friend.

In Jenkins' garage Officer Berry read to defendant his Miranda rights; defendant said he understood them; asked if he wanted to talk to the officer, defendant answered ‘No’; Officer Berry asked him no further questions.

Around midnight at the Eureka police station, Officer Berry a second time advised defendant of his Miranda rights; he asked defendant if he wished to talk to him and, if he did, he would like to talk about ‘the burglary [Jenkins] he had been arrested for,’ mentioning no other crimes, but defendant declined; Officer Berry had no ‘further discussion’ with him.

On February 9, Detective Rogers, Santa Barbara police, arrived at the Eureka station; he spoke with the Eureka police who turned over to him certain property, including the two pill containers; he asked Officer Berry if defendant was willing to make a statement; Berry told Detective Rogers that defendant ‘had not wanted to talk about the burglary [Jenkins] he had been arrested for’—Detective Rogers testified he was told by Officer Berry that defendant had ‘not waived his rights in regard to the burglaries he was arrested for in Eureka, because at the time they didn't know about the ones in Santa Barbara.’ Thereafter, Detective Rogers first interviewed Bubb; waiving his constitutional rights which were read to him, and listening to Roger's description of the four Santa Barbara burglaries, Bubb said ‘Yeah, I went into those houses.’ Later Mary Ann and Georgene confessed to the four Santa Barbara burglaries.

At 1:30 p. m. on February 10, Detective Rogers met defendant at the interview room of the Humboldt County Jail; he introduced himself as a police officer from Santa Barbara and explained why he was there, relayed to defendant the information he had concerning the Santa Barbara burglaries and his complicity therein, told him that he knew certain items similar to those taken in the burglaries had been pawned by him in Los Angeles and certain information connecting him with the theft and concealment of a wetsuit and surfboard, and informed him of the confessions of the other three. Then Detective Rogers read to defendant his Miranda rights; asked if he understood them, defendant said ‘Yeah’; defendant acknowledged that he had received similar advisements on several past occasions; he inquired about defendant's education and knowledge of the English language and whether he understood what a lawyer is; asked if he had any questions concerning his rights, defendant answered in the negative; he offered to explain those rights to defendant to the best of his ability if he desired but defendant asked for no explanation. No threats or promises or suggestions that there would be any advantage to him were made to defendant. Detective Rogers did not raise his voice but carried on a normal conversation, and defendant conceded he had not consumed any alcohol or drugs and had been reasonably wide awake.

Detective Rogers asked defendant if he was willing to waive his rights and talk to him; defendant answered ‘I guess so, yeah.’ Defendant then confessed his participation in the four Santa Barbara burglaries; at no time did defendant show any reluctance to answer his questions and he seemed to be cooperative and willing to talk to him; ‘he seemed to be thinking quite hard sometimes as to what burglaries he was admitting to have committed so he could remember to tell me, some of the property, where it came from.’

Defendant testified he did not want to talk to Detective Rogers but did so because ‘I just wanted to get them off my back’; he conceded that from February 7 (when last advised of his Miranda rights) to February 10 (when he waived his rights), no one gave him his Miranda rights or asked him to waive them.

Relying on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, appellant contends that his confession was inadmissible because his ‘interrogation did not cease after he stated he did not wish to make a statement’ which violated his ‘right to cut off questioning.’ Miranda, which promulgates a set of safeguards to insure the Fifth Amendment privilege against compulsory self-incrimination to those subjected to custodial police interrogation, also states that if a suspect ‘indicates in any manner that he does not wish to be interrogated, the police may not question him.’ (384 U.S. at p. 445, 86 S.Ct. at p. 1612), and establishes the proper procedure therefor: ‘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. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.’ (384 U.S. at pp. 473–474, 86 S.Ct. at p. 1627.)

Appellant interprets the foregoing passage as creating a per se proscription of any further interrogation once the suspect has indicated his desire to remain silent; likens his own case to Westover v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; and rejects Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313, on the basis that (1) it is distinguishable on its facts and (2) we should adhere to a higher standard under the California Constitution, in the manner of the California Supreme Court in People v. Disbrow, 16 Cal.3d 101, 107, 127 Cal.Rptr. 360, 545 P.2d 272, and hold his confession to be inadmissible under People v. Fioritto, 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625; People v. Ireland, 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580 and People v. Randall, 1 Cal.3d 948, 83 Cal.Rptr. 658, 464 P.2d 114.

It is true that in Fioritto, Ireland and Randall the California Supreme Court's interpretation of Miranda is that once the privilege is invoked all further attempts at police interrogation must cease; but in all of these cases interrogation was continued almost immediately after defendant's initial refusal to waive his Miranda rights.³ However, in cases in which ‘questioning of a suspect is terminated when Miranda rights are first asserted but reinstituted after the passage of a substantial interval of time’ (People v. Miller, 40 Cal.App.3d 228, 231, 114 Cal.Rptr. 779, 781; People v. Brockman, 2 Cal.App.3d 1002, 1009, 83 Cal.Rptr. 70; People v. Chambers, 276 Cal.App.2d 89, 106, 112, 80 Cal.Rptr. 672; People v. Duran, 269 Cal.App.2d 112, 117, 74 Cal.Rptr. 459), police are ‘[s]imply asking an individual a second time if he wishes to speak to police officers . . .’ (People v. Rice, 16 Cal.App.3d 337, 343, 94 Cal.Rptr. 4, 7) and there is ‘absent any indication of coercion, subterfuge, confusion or undue delay’ (People v. Torres, 19 Cal.App.3d 724, 731, 97 Cal.Rptr. 139, 143), the broad rule of Fioritto, which ‘is directed at prohibiting attempts to induce a waiver of rights by coercive, pressure-filled interrogation techniques.’ (People v. Rice, 16 Cal.App.3d 337, 343, 94 Cal.Rptr. 4, 7), has been limited.

In 1975 the United States Supreme Court concluded that Miranda does not create a per se proscription of any further interrogation once the person being questioned has indicated a desire to remain silent. (Michigan v. Mosley, 423 U.S. 96, 102–103, 96 S.Ct. 321, 46 L.Ed.2d 313.) Nevertheless, appellant urges that we adopt the ‘per se proscription’ approach through an independent interpretation⁴ of the California Constitution (art. I, § 15); but here we find no necessity therefor because Mosley gives adequate protection against compulsory self-incrimination. (Ct. People v. Disbrow, 16 Cal.3d 101, 114–115, 127 Cal.Rptr. 360, 545 P.2d 272; People v. Brisendine, 13 Cal.3d 528, 548–552, 119 Cal.Rptr. 315, 531 P.2d 1099.)

In Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313, Officer Cowie advised Mosley of his Miranda rights seeking to interrogate him concerning certain robberies for which he had been arrested; Mosley declined to discuss them and Officer Cowie ceased; two hours later Officer Hill took Mosley to another place in the building, advised him of his Miranda rights, questioned him regarding an unrelated holdup/murder and obtained a confession. Rejecting certain possible literal interpretations of Miranda as leading to absurd and unintended results, the court said ‘To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned. At the other extreme, a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests. Clearly, therefore, neither this passge nor any other passage in the Miranda opinion can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent.’ (423 U.S. at pp. 102–103, 96 S.Ct. at p. 325.) After discussing the suspect's ‘right to cut off questioning’ under Miranda, the court continued: ‘Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person's exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.” (423 U.S. at pp. 103–104, 96 S.Ct. at p. 326.) The circumstances leading to Mosley's confession which the court reviewed and found to demonstrate that his ‘right to cut off questioning’ was fully respected, likewise are found in the instant case.

In reaching our conclusion that defendant's ‘right to cut off questioning’ was ‘scrupulously honored’ by police, we have viewed the evidence in a light most favorable to the trial court's order (People v. Randall, 1 Cal.3d 948, 954, 83 Cal.Rptr. 658, 464 P.2d 114; the evidence supports the trial court's finding and the finding is conclusive on appeal (People v. Carter, 7 Cal.App.3d 332, 336, 88 Cal.Rptr. 546). (1) Mosley was carefully advised of his rights, which he understood, and when he said he did not want to discuss the robberies, Detective Cowie immediately ceased, thereafter making no effort to either resume questioning or persuade Mosley to reconsider his position. Herein, at the police station Officer Berry gave defendant full and complete Miranda rights on two occasions (10 p. m. February 7 and two hours later at 12 p. m.) which he said he understood; when defendant last told the officer he did not want to talk to him, Officer Berry immediately ceased conversation and thereafter, never again advised him of his rights, asked him to waive them or sought to question him or have him reconsider or change his position.

(2) More than two hours after Officer Cowie read him his rights, Mosley was questioned by another police officer at another location in the same building about an unrelated holdup/murder; Mosley was given full and complete Miranda warnings at the outset of the second interview and carefully given a full and fair opportunity to exercise his options. In the instant case, more than 60 hours after Officer Berry had last read to defendant his rights at the police station, Detective Rogers at another location (Humboldt County Jail) questioned defendant about four unrelated burglaries; defendant was given full and complete Miranda warnings before he was questioned and Detective Rogers went to considerable means to make him aware of those rights and to determine if in fact he understood them offering to explain them, and to give him a full and fair opportunity to exercise his options. (Michigan v. Mosley, 423 U.S. at pp. 104–105, 96 S.Ct. 321; People v. Miller, 40 Cal.App.3d 228, 231–232, 114 Cal.Rptr. 779.)

(3) The subsequent questioning of Mosley did not undercut his previous decision not to answer Detective Cowie's inquiries because Detective Hill did not resume interrogation about the robberies for which he was arrested but focused exclusively on the holdup/murder, a crime different in nature and in time and place of occurrence from the robberies; his questioning of Mosley about an unrelated holdup/murder was consistent with the reasonable interpretation of Mosley's earlier refusal to answer any questions about the robberies. Said the court ‘This is not a case, therefore, where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind. In contrast to such practices, the police here immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation.’ (423 U.S. at pp. 105–106, 96 S.Ct. at p. 327.) In the instant case Detective Rogers did not resume or initiate interrogation⁵ about the Jenkins' garage burglary but focused exclusively on the Santa Barbara residential burglaries, crimes different in nature and in time and place. Officer Berry had told defendant he wanted to talk he specifically about ‘the burglary for which he had been arrested’; he did not intend to nor did he question defendant about any other offense, in fact it appears that he was unaware that the Santa Barbara burglaries even existed. On the other hand Detective Rogers, a Santa Barbara police officer, did not intend to nor did he question defendant about the Eureka burglary; he had been told defendant refused to discuss it. After advising defendant of the circumstances surrounding the Santa Barbara burglaries, certain information implicating him and the confessions of the codefendants, it was reasonable for Detective Rogers to give defendant an opportunity to discuss the burglaries with him if he so desired. We conclude, as did the Mosley court, that the questioning of defendant by Detective Rogers about unrelated burglaries was quite consistent with a reasonable interpretation of defendant's earlier refusal to answer any questions about the Eureka burglary. A related factor is that the confession was made to a different police agency at a different place. The first two advisements were given by Eureka Police Officer Berry at Jenkins' garage and the station; the thired Miranda warning was read to defendant by a Santa Barbara detective in the Humboldt County Jail. In the absence of any evidence that Detective Rogers sought information on behalf of the Eureka police and that the third interview did not come on the heels of the second advisement, there is absent any showing of the sort of repetition or persistence which would suggest subtle coercion.

Finally, there was none of the continuation of custodial interrogation after ‘momentary cessation’ that is clearly condemned in Mosley (423 U.S. at p. 102, 96 S.Ct. 321) and which was found in Fioritto and Ireland. Two and one-half days (61 hours) elapsed between the second advisement by Officer Berry and the interview with Detective Rogers—‘the passage of a significant period of time’ (Michigan v. Mosley, 423 U.S., p. 106, 96 S.Ct., p. 327 [2 hours]; People v. Miller, 40 Cal.App.3d 228, 232–233, 114 Cal.Rptr. 779 [2 days]; People v. Chambers, 276 Cal.App.2d 89, 106, 80 Cal.Rptr. 672 [2 days]; People v. Duran, 269 Cal.App.2d 112, 117, 74 Cal.Rptr. 459 [8–9 hours])—that negates any suggestion of repetition and persistence that might assume a coercive quality.

Westover v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, is factually wholly dissimilar to the instant case. Westover was arrested at 9:45 p. m. and taken to the station; without giving any kind of advisory warnings (this is a companion case to Miranda) the police questioned him at length regarding certain local robberies; at noon he was taken over by the FBI for interrogation concerning a California robbery; the FBI gave advisory warnings and then questioned him. Holding that the confession to the FBI was not admissible, the Supreme Court noted there had been no proper warnings by Kansas City police and the confession followed on the heels of prolonged questioning. The court said at pages 496–497, 86 S.Ct. at page 1639: ‘We do not suggest that law enforcement authorities are precluded from questioning any individual who has been held for a period of time by other authorities and interrogated by them without appropriate warnings. A different case would be presented if an accused were taken into custody by the second authority, removed both in time and place from his original surroundings, and then adequately advised of his rights and given an opportunity to exercise them. But here the FBI interrogation was conducted immediately following the state interrogation in the same police station—in the same compelling surroundings. Thus, in obtaining a confession from Westover the federal authorities were the beneficiaries of the pressure applied by the local in-custody interrogation. In these circumstances the giving of warnings alone was not sufficient to protect the privilege.’

The judgment is affirmed.

FOOTNOTES

1.  Codefendants Michael Jay Bubb, Mary Ann Bubb and Georgene Elley, charged with defendant, earlier had pleaded guilty.

2.  Notwithstanding that the judgment is based on defendant's pleas of guilty entered following denial of his pretrial motion to exclude evidence of his confession, the trial court issued a certificate of probable cause (Pen. Code § 1237.5) for the review of that ruling and the sole substantive issue herein concerns the admissibility of his confession (People v. DeVaughn, 18 Cal.3d 889, 895–896, 135 Cal.Rptr. 786, 558 P.2d 872), we address the merits of appellant's constitutional claim.

3.  In People v. Fioritto, 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625, after defendant refused to sign a written waiver, he was confronted with two accomplices who had confessed; when police removed them, interrogation was renewed, he signed the waiver and confessed (p. 717, 68 Cal.Rptr. 817, 441 P.2d 625). Similarly in People v. Ireland, 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580, upon his arrest, defendant was advised of his rights; he made a request to police that his parents obtain counsel for him, which request police ignored, and when they arrived at the station he was interrogated resulting in a confession 35 minutes later (p. 533, 75 Cal.Rptr. 188, 450 P.2d 580). In People v. Randall, 1 Cal.3d 948, 83 Cal.Rptr. 658, 464 P.2d 114, a confession was obtained in the absence of his attorney after defendant had requested one and spoken to him on the telephone (pp. 952–953, 83 Cal.Rptr. 658, 464 P.2d 114).

4.  We note that People v. Fioritto, 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625 was based on an interpretation of Miranda (p. 719, 68 Cal.Rptr. 817, 441 P.2d 625), not upon any direct interpretation of the United States or California Constitutions; and the United States Supreme Court in Mosley has given its interpretation of its own decision in Miranda.

5.  Although it is likely a matter of semantics, we note that defendant was never ‘interrogated’ by Officer Berry in the manner of custodial interrogation contemplated by Miranda; he was simply twice advised of his Miranda rights and asked if he wished to waive them and talk to Officer Berry, and when he declined, the officer immediately ceased further discussion with him.

LILLIE, Associate Justice.

WOOD, P. J., and THOMPSON, J., concur.