PEOPLE v. SMITH (1981)

A jury found that hitchhiking defendant Smith had turned on his 68-year-old benefactor by binding and gagging him and stealing his automobile and other property. They convicted him of robbery and found that in its commission he had used a deadly weapon. He had admitted two prior felony convictions.

The appeal is taken by him from the judgment entered upon the jury's verdict and finding, and his admissions, under which he was sentenced to an aggregate prison term of seven years.

Smith's confession to the robbery was placed before the jury. The evidence of his guilt may reasonably be described as overwhelming.

From our consideration of the record and briefs of the parties we find no error and affirm the judgment. Our reasons follow.

We state Smith's several appellate contentions as phrased by him.

I. Contention: “The trial court erred in excluding evidence that (the victim) had a homosexual relationship with appellant because such evidence was relevant to appellant's state of mind at the time of the offense.”

We find no fault in the trial court's disallowance of evidence that a homosexual relationship existed between Smith and his victim. Assuming, arguendo, its truth the trial court found it to be of scant, if any, relevance or probative value; it was properly excluded under the discretionary powers conferred by Evidence Code section 352.

II. Contention: “The trial court's denial of appellant's motion to suppress his confession was erroneous because the confession was a direct product of the unlawful search and arrest of appellant.”

Defendant Smith was observed urinating in a public place, thus committing the misdemeanor offense proscribed by “section 374.5 of the Vallejo Municipal Code Ordinance.” When such an offender furnishes adequate identification to an officer, he will usually be given an appropriate written notice to appear in court, as provided by Penal Code section 853.6. But where he does not, or will not, furnish such identification he will be arrested and “taken to the station” and “booked.”

Smith was such an offender. The evidence established that upon announcing that he had no identification there was “probable cause” for his arrest; he was not “free to leave,” and he was in “custody.”

Probable cause for Smith's arrest followed from the operation of Penal Code section 853.6, subdivision (j)(5), upon his failure, or inability, to furnish identification. And here the officer expressly believed that he had such probable cause for the arrest.

“An arrest is taking a person into custody, in a case and in the manner authorized by law.” (Pen. Code, s 834, emphasis added; People v. Superior Court (Logue), 35 Cal.App.3d 1, 3, 110 Cal.Rptr. 504.)

“(C)ustody occurs if the suspect is physically deprived of his freedom of action in any significant way ....” (People v. Arnold, 66 Cal.2d 438, 448, 58 Cal.Rptr. 115, 426 P.2d 515; emphasis added.)

It is of no consequence whether the officer shall have expressly formulated the intent to arrest, or decided upon the precise charge to be lodged. The “arrest is made by an actual restraint of the person, ...” (Pen. Code, s 835; People v. Hatcher, 2 Cal.App.3d 71, 75, 82 Cal.Rptr. 323.) The rule is exemplified by People v. Parker, 85 Cal.App.3d 439, 443-444, 148 Cal.Rptr. 513, as follows:

“Custody is an objective condition, and is not solely dependent upon the subjective intent of the interrogator to arrest the suspect.... Although the officers testified that they took defendant to and detained him in the security office for further investigation, clearly defendant was under arrest in custody and not free to leave. (The officer) testified that defendant was detained and he was not free to walk away.... The restraint of defendant went far beyond temporary detention. The fact that ... he detained defendant did not negate the fact that the officers had probable cause to arrest him and in fact did so.” (Emphasis added, fn. omitted; and see People v. Freund, 48 Cal.App.3d 49, 54-55, 119 Cal.Rptr. 762; People v. Herdan, 42 Cal.App.3d 300, 308, 116 Cal.Rptr. 641; Ferdin v. Superior Court, 36 Cal.App.3d 774, 781, 112 Cal.Rptr. 66.)

At this point the officer was under a duty to and would have transported Smith to jail where he would have been booked, and subjected to a booking search.

Instead the officer chose to conduct an immediate “field” search. (We find it to be of no constitutional consequence that the initial search took the form of a lesser pat search or weapons “frisk.”)

It is now settled law of this state that where the police have a right or duty to, and intend to, take an arrested suspect to jail and book him, they may conduct an “accelerated booking search” in the field.

“The reasoning proceeds from the premise that a full custody search is permissible at the stationhouse prior to booking, and therefore it is not a significantly greater intrusion into the sanctity of a person of the arrestee if the search is conducted in the field. We have no quarrel with this rationale if in fact the individual is to be subjected to the booking process.” (People v. Longwill, 14 Cal.3d 943, 948, 123 Cal.Rptr. 297, 538 P.2d 753; emphasis added.) “Where it is shown that a suspect would have been jailed and thus subject to a booking search, the fact that a thorough search of the booking type occurs prior to the actual booking process does not render the search illegal, since no additional or greater intrusion on the privacy of the suspect is involved.” (People v. Bullwinkle, 105 Cal.App.3d 82, 87, 164 Cal.Rptr. 163; and see People v. Superior Court (Simon), 7 Cal.3d 186, 208-209, 101 Cal.Rptr. 837, 496 P.2d 1205; People v. Flores, 100 Cal.App.3d 221, 229-230, 160 Cal.Rptr. 839; People v. Barajas, 81 Cal.App.3d 999, 1008-1009, 147 Cal.Rptr. 195.)

The pat search disclosed in Smith's trousers' pocket a wallet such as customarily contains papers identifying its owner. The officer reached in and seized the wallet but declined to look through it. Instead, he placed it upon the hood of Smith's (or rather his victim's) automobile, and directed him to produce some means of identification. Smith produced a Visa card with a name later established as that of his victim. Skeptical, the officer called for radio information about it and was advised that the card had been reported stolen. The card led to further information of Smith's crime of robbery.

We find no Fourth Amendment taint in the arrest of Smith or in the ensuing search or in the seizure of the wallet and Visa card.

III. Contention: “Appellant's confession was involuntary as a matter of law because it occurred when police officers renewed interrogation of appellant after he had asserted his Miranda rights.” (Emphasis added.)

Smith was arrested and jailed and booked in Solano County, by a Solano County officer who promptly admonished him according to Miranda. Smith declined to waive the asserted rights. He was thereafter turned over to a detective sergeant from Contra Costa County, where the armed robbery in which the Visa card was obtained, had occurred. The detective sergeant, having no knowledge of Smith's earlier nonwaiver, again “Mirandized” him, and Smith said he wished to talk to the officer. His here challenged confession ensued.

We note initially that Smith makes no contention that he did not, as a matter of fact, freely and voluntarily waive his Miranda rights when questioned by the Contra Costa County detective sergeant.

He argues only that by operation of People v. Fioritto, 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625, and People v. Pettingill, 21 Cal.3d 231, 145 Cal.Rptr. 861, 578 P.2d 108, any such continued interrogation after the suspect has once declined to waive such rights, is invalid, regardless of the circumstances and as a matter of law, unless he had himself voluntarily initiated it. The cited authority, he insists, declares such an absolute “rule for California, holding that such an examination of all the surrounding circumstances afforded insufficient assurance that such statements would be voluntary, and involved a waste of both trial and appellate court time in dissecting the surrounding facts.”

We conclude that Smith incorrectly construes Fioritto, Pettingill and the related law of Miranda.

It is true that a “heavy burden” rests upon the prosecution at all times “to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” (Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694.)

It is “a relatively absolute rule against further interrogation where the right to remain silent has once been asserted and the defendant has remained in custody, unless the further interrogation is initiated at the request of the suspect.” (People v. Borba, 110 Cal.App.3d 989, 996, 168 Cal.Rptr. 305; emphasis added.) But nevertheless, under such circumstances, whether the defendant did on the second occasion waive his Miranda rights is not a question of law but instead remains a question of fact for the trial court (People v. Lara, 67 Cal.2d 365, 392, 62 Cal.Rptr. 586, 432 P.2d 202 (cert. den., 392 U.S. 945, 88 S.Ct. 2303, 20 L.Ed.2d 1407); In re Eduardo G., 108 Cal.App.3d 745, 756, 166 Cal.Rptr. 873; People v. McFarland, 17 Cal.App.3d 807, 816, 95 Cal.Rptr. 369; People v. Brockman, 2 Cal.App.3d 1002, 1008, 83 Cal.Rptr. 70), to be determined upon the entire record (People v. Lara, supra, 67 Cal.2d p. 376, 62 Cal.Rptr. 586, 432 P.2d 202; In re Steven C., 9 Cal.App.3d 255, 268, 88 Cal.Rptr. 97; People v. Nunez, 7 Cal.App.3d 655, 660, 86 Cal.Rptr. 707; People v. Brockman, supra, 2 Cal.App.3d p. 1008, 83 Cal.Rptr. 70), and after consideration of all of the facts and circumstances (In re Eduardo G., supra, 108 Cal.App.3d p. 756, 166 Cal.Rptr. 873; In re Steven C., supra, 9 Cal.App.3d p. 268, 88 Cal.Rptr. 97; People v. Brockman, supra, 2 Cal.App.3d p. 1008, 83 Cal.Rptr. 70).

Among the factors to be considered by the trial court in determining whether upon such a second interrogation an accused voluntarily and intentionally waived his Miranda rights are: whether the police exerted pressure on defendant to confess, or he “knew his rights (and) had asserted them when first arrested,” or in “the interim he had an opportunity to carefully consider his predicament and to seek any support needed personal or professional to continue asserting his rights, if he so chose.” (People v. Mack, 27 Cal.3d 145, 154, 165 Cal.Rptr. 113, 611 P.2d 454.) Other such factors have been stated as: “(1) the period of time intervening after questioning is first terminated ...; (2) whether the subsequent interrogation is initiated by the police solely to obtain a statement or is also motivated by outside factors ...; (3) the extent of subsequent warning and explanation of rights before a second questioning commences ...; (4) whether police conduct involves only reinstituted questioning or also includes an inducement to confess, albeit, a proper one; and (5) the circumstances under which the first warning of Miranda rights was given and the rights asserted ....” (People v. Lopez, 90 Cal.App.3d 711, 718-719, 153 Cal.Rptr. 541, and see authority there collected.)

The purpose of the Fioritto rule is to prevent the police from “increasing the pressures on the suspect to confess in order to end his forced isolation and ‘get them off my back.’ ” (People v. Pettingill, supra, 21 Cal.3d 231, 249, 145 Cal.Rptr. 861, 578 P.2d 108.) In effectuating such a purpose the police and trial courts will consider “the letter and spirit of these laws ....” (Id., p. 243, 145 Cal.Rptr. 861, 578 P.2d 108.) And when the total facts and circumstances of the second interrogation “show clearly and convincingly” (People v. Brockman, supra, 2 Cal.App.3d 1002, 1008, 83 Cal.Rptr. 70; emphasis added) that the accused did relinquish his rights “knowingly, intelligently and voluntarily” the prosecution will have met the heavy burden imposed upon it.

And finally we consider the above mentioned recent case of the state's high court, People v. Mack, 27 Cal.3d 145, 165 Cal.Rptr. 113, 611 P.2d 454. There, after an accused had declined to waive his Miranda rights, a confession under subsequent police interrogation uninitiated by him but following his clear and convincing waiver of such rights, was found constitutionally valid.

Contrary to Smith's contention we conclude that this state's Fioritto rule is not an absolute, requiring as a matter of law that all police interrogation uninitiated by an accused who had previously declined to waive, but subsequently did waive, his Miranda rights, be deemed invalid. Nor in such a case will trial and appellate courts refuse, as urged by Smith, to consider “the surrounding facts” in order to determine whether the subsequent waiver was truly free, voluntary and intentional.

IV. Contention: “The judgment must be reversed because the trial court failed to find the confession was voluntary beyond a reasonable doubt.”

People v. Jimenez, 21 Cal.3d 595, 609, 147 Cal.Rptr. 172, 580 P.2d 672, made certain the standard for determining voluntariness of a confession as that of proof beyond a reasonable doubt. And the court further held that “given the uncertainty as to the appropriate standard of proof (at the time of its decision), we do not think it can be presumed that the trial court applied the correct standard in those cases in which the record is silent in this regard.” The court's obvious purpose was that in view of the past uncertainty of the proper evidentiary standard, it would not presume then or until the uncertainty might reasonably be deemed removed, from as here, a silent record, that the proof beyond a reasonable doubt standard had been followed.

People v. Jimenez had been decided and published approximately 18 months before Smith's trial, and its rule had become well settled. In such a case “it is presumed that the trial judge applied the appropriate standard and no articulation is required.” (In re Fred J., 89 Cal.App.3d 168, 175, 152 Cal.Rptr. 327; and see Ross v. Superior Court, 19 Cal.3d 899, 914-915, 141 Cal.Rptr. 133, 569 P.2d 727.)

We observe no purpose to depart from the long-established principle that a ruling of a trial court will ordinarily be presumed correct and in accordance with existent legal principles and authority. (See Denham v. Superior Court, 2 Cal.3d 557, 564-565, 86 Cal.Rptr. 65, 468 P.2d 193; Minardi v. Collopy, 49 Cal.2d 348, 353, 316 P.2d 952; People v. Sparks, 262 Cal.App.2d 597, 600-601, 68 Cal.Rptr. 909.) “ ‘This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ ” (Denham v. Superior Court, supra, 2 Cal.3d p. 564, 86 Cal.Rptr. 65, 468 P.2d 193.) We presume that the trial court properly adhered to People v. Jimenez.

The judgment is affirmed.

I respectfully and reluctantly dissent, opining that when the trial court rightly concluded that the wallet seizure and search and resultant arrest were illegal, the confession also should have been excluded. It in my view (1) was a direct product of impermissible intrusion and (2) was obtained in violation of California's stringent self-incrimination protections.

I

The Wallet Seizure

Unquestionably, once it is shown that a suspect would have been jailed, and thus subjected to a booking search, the fact that a search of that type occurs prior to the booking process does not render the search illegal. (People v. Bullwinkle (1980) 105 Cal.App.3d 82, 87, 164 Cal.Rptr. 163; People v. Barajas (1978) 81 Cal.App.3d 999, 1008, 147 Cal.Rptr. 195.) Here, however, according to his own testimony, Officer Tucker never formed or expressed any intent to arrest the defendant until his possession of a reportedly stolen credit card was established by the premature removal of Smith's wallet.

The detention and weapons pat-down are not challenged on this appeal, nor could they be found unreasonable. (Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; People v. Szabo (1980) 107 Cal.App.3d 419, 430, 165 Cal.Rptr. 719.) When, however, the officer detected that which he recognized to be a wallet, rather than a weapon, and withdrew it from defendant's pocket, he exceeded the limits imposed by controlling cases. (Sibron v. New York (1968) 392 U.S 40, 65, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917; People v. Leib (1976) 16 Cal.3d 869, 875, 129 Cal.Rptr. 433, 548 P.2d 1105; People v. Brisendine (1975) 13 Cal.3d 528, 544, 119 Cal.Rptr. 315, 531 P.2d 1099; People v. Mosher (1969) 1 Cal.3d 379, 394, 82 Cal.Rptr. 379, 461 P.2d 659.)

“Unless the officer feels an object which a prudent man could believe was an object useable as an instrument of assault, the officer may not remove the object from the inside of the suspect's clothing, require the suspect to take the object out of his pocket, or demand that the suspect empty his pockets.” (People v. Mosher, supra, 1 Cal.3d at p. 394, 82 Cal.Rptr. 379, 461 P.2d 659.)

It might seem sensible to approve the wallet seizure and search as a quest for evidence of identification, but the holdings in point disallow such rationale. In People v. Collins (1970) 1 Cal.3d 658, 665, 83 Cal.Rptr. 179, 463 P.2d 403, a suspect's lack of identification did not justify bypassing a pat-down for a more extensive intrusion. In People v. Millard (1971) 15 Cal.App.3d 759, 763, 93 Cal.Rptr. 402 (disapproved on other grounds in Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, 589, 156 Cal.Rptr. 198, 595 P.2d 975) the identification purpose was found inadequate to justify removal and inspection of a wallet belonging to a defendant who had been arrested for public drunkenness.

I agree with my colleagues that Officer Tucker had valid grounds (public urination and failure to produce identification) upon which he could have arrested and conducted an incidental search of appellant's person. The actual arrest, however, was for unlawful possession of stolen property, now sought to be justified by what the impermissible intrusion produced. The trial judge having heard the evidence, rejected the suggestion that defendant probably would have been arrested in any event, with “inevitable discovery” of all evidence, as overly speculative.

The inadmissibility of appellant's next morning confession to Sergeant Hisey therefore appears to be compelled by People v. Johnson (1969) 70 Cal.2d 541, 545, 75 Cal.Rptr. 401, 450 P.2d 865, cert. den. 395 U.S. 969, 89 S.Ct. 2120, 23 L.Ed.2d 758, disapproved on other grounds, People v. DeVaughn (1977) 18 Cal.3d 889, 899, 135 Cal.Rptr. 786, 558 P.2d 872: “... where a confession is induced by illegally seized evidence, the confession is subject to exclusion as fruit of the poisonous tree.” (Wong Sun v. United States (1963) 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441.) There were no evident attenuating circumstances here sufficient to purge the taint of the illegal search.

“Attenuation,” the trial court's reason for admitting the confession, refers to the purging of a taint. In Brown v. Illinois (1975) 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416, there was a listing of the factors to be considered when determining in any given case whether there has been sufficient attenuation: 1) temporal proximity between illegality and the challenged evidence; 2) presence or absence of intervening circumstances, and 3) purpose and flagrancy of official misconduct. No single factor suffices in itself, including Miranda warnings alone, following an illegal arrest. (Brown v. Illinois, supra, at p. 601-2, 95 S.Ct. at p. 2260-61.)

Under California law the improper introduction into evidence of a confession, as distinguished from an admission, is reversible error per se, no matter how overwhelming other evidence of guilt may be. (People v. Randall (1970) 1 Cal.3d 948, 958, 83 Cal.Rptr. 658, 464 P.2d 114; People v. McClary (1977) 20 Cal.3d 218, 230, 142 Cal.Rptr. 163, 571 P.2d 620.)

II

Self-Incrimination

As an additional ground for attack upon the admission of the confession into evidence, defendant points to his express invocation of his privilege against self-incrimination when Officer Tucker commenced interrogation following the arrest. (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.)

In this context observations from In re Roland K. (1978) 82 Cal.App.3d 295, 299 and 301, 147 Cal.Rptr. 96, are pertinent: “In a long line of cases the California Supreme Court has held that once a suspect has indicated directly or indirectly that he does not wish to waive his privilege against self-incrimination, the police cannot lawfully continue or renew the interrogation, even though he is again given his Miranda warnings prior to the new or subsequent interrogation, and any statement elicited thereafter is inadmissible because in violation of the principles of Miranda and the privilege against self-incrimination of the California Constitution. (People v. Pettingill, 21 Cal.3d 231, 238, 243 (145 Cal.Rptr. 861, 578 P.2d 108), ...; People v. McClary, 20 Cal.3d 218, 226 (142 Cal.Rptr. 163, 571, P.2d 620), ...; People v. Enriquez, 19 Cal.3d 221, 237-238 (137 Cal.Rptr. 171, 561 P.2d 261), ...; People v. Disbrow, 16 Cal.3d 101, 104-106 (127 Cal.Rptr. 360, 545 P.2d 272), ...; People v. Superior Court (Zolnay) 15 Cal.3d 729, 735-737 (125 Cal.Rptr. 798, 542 P.2d 1390), ...; People v. Superior Court (Keithley) 13 Cal.3d 406, 412 (118 Cal.Rptr. 617, 530 P.2d 585), ...; People v. Carr, 8 Cal.3d 287, 297 (104 Cal.Rptr. 705, 502 P.2d 513), ...; People v. Burton, 6 Cal.3d 375, 384 (99 Cal.Rptr. 1, 491 P.2d 793), ...; People v. Randall, 1 Cal.3d 948, 955-958 (83 Cal.Rptr. 658, 464 P.2d 114), ...; People v. Ireland, 70 Cal.2d 522, 535-536 (75 Cal.Rptr. 188, 450 P.2d 580), ...; People v. Fioritto, 68 Cal.2d 714, 719 (68 Cal.Rptr. 817, 441 P.2d 625), ...)”

In People v. Pettingill (1978) 21 Cal.3d 231, 145 Cal.Rptr. 861, 578 P.2d 108, it was held that the California Constitution imposes a stricter standard than is required by Michigan v. Mosley (1975) 423 U.S. 96, 102, 96 S.Ct. 321, 325, 46 L.Ed.2d 313, when police seek to interrogate a suspect who has previously refused to waive his Miranda rights. “... (t)he Fioritto rule, rather than the Mosley test, will remain the rule of decision in all state prosecutions in California.” (People v. Pettingill, supra, 21 Cal.3d at p. 251, 145 Cal.Rptr. 861, 578 P.2d 108.)

People v. Lopez (1979) 90 Cal.App.3d 711, 153 Cal.Rptr. 541, cited by the majority, looked to Mosley to uphold a confession's admissibility after assertion of Miranda rights, where the second interrogation was not a continuation of the first, was with a different officer on another subject, the second officer was unaware of the earlier invocation, there was no subterfuge, and the suspect again had been fully advised of Miranda rights.

Differing resolutions of this issue are developing both within and between appellate districts and divisions. People v. Borba (1980) 110 Cal.App.3d 989, 996, 168 Cal.Rptr. 305 declined to follow Lopez: “We are further persuaded that we read our Supreme Court correctly by the recent case of People v. Mack (1980) 27 Cal.3d 145 (165 Cal.Rptr. 113, 611 P.2d 454), .... (P) In Mack, the defendant was arrested for receiving stolen property. He was given his Miranda warning and declined to make a statement. He was released from custody. Five or six days after he was released from custody, he was arrested on a charge of murder. He was again given a Miranda warning and confessed. The confession was admitted at trial; defendant was convicted of murder and appealed. (P) The Supreme Court, reaffirming its views in Pettingill, distinguished it from the case at bench on the sole ground that in Pettingill the appellant had been ‘in custody continuously for three days before finally waiving his Miranda rights,’ whereas Mack had been out of custody five or six days before he was rearrested and confessed. (Id., 27 Cal.3d at p. 154, italics added.)”

I would hold with Borba. Here, as in In re Roland K., supra, 82 Cal.App.3d 295, 147 Cal.Rptr. 96, because a law officer conducted an interrogation on the morning following an incarcerated defendant's exercise of his Fifth Amendment privilege, the confession then obtained was inadmissible. Its admission was prejudicial per se, and should compel reversal. (People v. Burton (1971) 6 Cal.3d 375, 384, 99 Cal.Rptr. 1, 491 P.2d 793.) The per se classification, logical or no, precludes consideration of the harmless error test or California Constitution, article VI, section 13.

For these reasons I would reverse.

ELKINGTON, Acting Presiding Justice.

NEWSOM, J., concurs.