PEOPLE v. BRAESEKE (1979)

Defendant Barry Braeseke appeals from a judgment convicting him of the first degree murder of his mother, father and grandfather, in violation of section 187 of the Penal Code. The appeal presents the following issues for resolution: (1) On this appeal by the defendant, may the People challenge allegedly erroneous rulings by the trial court? (2) Where defendant's two confessions and the physical evidence obtained as a result of such confessions inadmissible due to an inadequate Miranda warning or because they were improperly induced by the interrogating officer?

At approximately 1 a. m. on August 24, 1976, Alameda County sheriff's deputies were summoned to defendant's home on Betlen Drive in Dublin. When the deputies arrived, defendant, who was 20 years old, came out onto the front porch and asked them to “please hurry.” They followed defendant into the family room and found the bodies of defendant's mother, father and grandfather. Defendant's father had died as the result of three gunshot wounds in the head; his mother as the result of gunshot wounds in the head and the abdomen; and his grandfather as the result of multiple gunshot wounds in the head. Defendant's grandfather had also sustained head injuries caused by blows from a blunt instrument.

Sheriff's Deputy Lockhart talked to defendant at the scene and asked him when he had last seen his parents alive. Defendant replied that he had left the house with a friend, Dave Barker, at 9 p. m. and that at that time, his parents and grandfather were alive. Defendant said that he and Barker had visited a friend in Hayward and had then gone to a drive-in movie. After driving Barker home, defendant returned to his own home and entered the front door, which was unlocked. Defendant stated that he called out to announce that he was home, received no response and then went into the family room where he found the three bodies. According to defendant, he ran immediately to the home of a neighbor and asked her to call an ambulance. Defendant then ran back to his own home and telephoned the sheriff's department.

In the course of their investigation at the homicide scene, the sheriff's deputies observed that the master bedroom gave the appearance of having been ransacked, in that various drawers had been turned upside-down. However, the deputies began to doubt that a burglary had occurred when they were unable to find any sign of a forced entry and when they also discovered that various items usually taken in a burglary, such as small appliances, cash and credit cards, had been left in plain view on the premises.

Defendant was transported to the sheriff's substation in San Leandro, where he was interviewed by Detective Cervi and Sergeant Seher shortly after 4 a. m. In his statement, which was tape recorded, defendant adhered to the same version of events he had earlier recounted to Deputy Lockhart, stating that he had gone out for the evening at 9 p. m. and had returned home around 1 a. m. to find the bodies of his parents and grandfather. This interview concluded at 5:15 a. m.

Following their initial interview with defendant, Detective Cervi and Sergeant Seher discussed the case. Seher pointed out that he had observed what appeared to be spattered blood on defendant's pants legs. The two officers had also interviewed defendant's friend, Dave Barker, and had noticed certain inconsistencies between his story and that of the defendant. The two officers decided to conduct a further interview of defendant.

The second interview with defendant commenced at approximately 6 a. m. It was not tape recorded, but Detective Cervi and Sergeant Seher both testified that defendant was first advised of his Miranda rights and stated that he understood them and was willing to talk to the officers. Defendant then began to repeat his exculpatory version of the facts until he was asked about the blood on his pants. He replied that the bloodstains must have been acquired when he was checking the bodies of his parents. The officers pointed out to defendant that the blood was “splattered” on his pants and that this condition could not have been caused by defendant's having rubbed against a bloody object at the scene. Sergeant Seher told defendant that he did not believe his story and thought that he had committed the homicides. At this point, defendant stated that he did not want to talk further without an attorney present. Detective Cervi promptly advised defendant that the officers were precluded from questioning him further and that if he wished to talk to them at some later time, defendant would have to contact the officers and so state. Defendant was placed under arrest and booked.

During the booking process, Cervi asked defendant for his name, address and date of birth. He asked defendant the name of his next of kin, at which point defendant first fell silent and then asked if he could talk to Detective Cervi alone. Sergeant Seher departed, and Cervi accompanied defendant to an office a short distance down the hall. Defendant stated that he wanted to talk to Cervi “off the record.” He began asking Cervi hypothetical questions: “(W)hat if I told you the rifle was somewhere some kids might find it or where they might get hurt?” What would happen to him if he had done all the things the officers had accused him of doing? Cervi testified that he responded to these questions by telling defendant that he would appreciate any information which defendant might furnish, but that defendant would have to go to jail and that there was no other alternative.¹

Cervi then asked defendant whether he was willing to give a formal, recorded statement, and defendant agreed to do so. Cervi turned on the tape recorder at 7:25 a. m. He first reminded defendant that during a previous interview, defendant had stated that he was unwilling to talk further without an attorney. Defendant agreed that this was the case and also agreed that during the booking procedure, he had asked Cervi if he could discuss the homicides with him further. In response to further questions by Cervi, defendant stated that he was acting voluntarily and that he was still well aware of his right to have an attorney present. Defendant then gave a full confession. He stated that he and his friend, Dave Barker, had discussed the idea of killing defendant's parents over a period of weeks. Defendant claimed that, frequently, he had been high on “crystal” during this period of time. He stated that the subject of killing his parents first arose when he bragged to Barker that his parents were rich and that since he was an only child, all of their money and insurance would go to him in the event of their death. According to defendant, Barker brought up the subject of killing defendant's parents on numerous occasions, urging defendant to go through with it and offering to assist him. On the previous day, August 23, Barker had been particularly insistent, and defendant ultimately told him that he was ready to commit the murders. Defendant stated that he first shot his father with a .22 caliber rifle and then shot his mother. Defendant then urged Barker to kill his grandfather, and when Barker hesitated, defendant threw his grandfather on top of his mother's body and ordered Barker to hit him. Barker began striking defendant's grandfather with a chisel, and defendant then handed him the rifle. Barker shot and killed the grandfather.

Defendant told Cervi that after he and Barker had attempted to make the house look as though it had been ransacked, they drove off in defendant's car. They took with them the .22 rifle and certain items of personal property from defendant's house, including the wallets of defendant's parents. After first hiding the rifle under a bridge near Eden Canyon, defendant and Barker went to a drive-in movie. Defendant then drove Barker to his home, where the latter agreed to hide the various items of stolen personal property in his backyard. The interview was concluded at 7:55 a. m., after defendant agreed to show the sheriff's deputies where the rifle was hidden.

Defendant left the sheriff's substation with two deputies and directed them to the spot where he had hidden the rifle.

Following his return to the substation, defendant agreed to allow urine and blood samples to be taken so that they could be tested for alcohol or drug content. He advised Detective Cervi that he had not taken “crystal” or any other drug for 24 hours before the homicides.

At approximately 1 p. m., defendant gave a tape recorded statement to Deputy District Attorney Michael Cardoza. Defendant was first advised of his Miranda rights and stated that he understood them and was willing to waive them. He admitted that he had previously been advised of these rights, had understood them at that time, had stated that he did not wish to talk without an attorney present and had then been advised that if he wanted to talk further, he would have to reinitiate contact with the sheriff's deputies and tell them that he wished to talk to them. Defendant said that he had, in fact, later told Detective Cervi, during the booking procedure, that he had made this statement voluntarily and with his Miranda rights in mind. Defendant was again asked whether he was willing to waive his Miranda rights, stated that he was and again gave a full confession. This final interview was concluded at 2:09 p. m.

Defendant made a pretrial motion to suppress his “off the record” statement to Detective Cervi and the two tape recorded confessions subsequently made to Cervi and to Assistant District Attorney Cardoza. Also, defendant sought to suppress various items of physical evidence which were allegedly the product of his confessions. The trial court ruled that it would suppress defendant's tape recorded confession to Cervi on the ground that it had not been preceded by an adequate recitation of defendant's Miranda rights. In all other respects, the suppression motion was denied.²

Defendant contends that this court may not review the trial court's ruling made at the suppression hearing, that defendant's first tape recorded confession to Cervi was inadmissible; further, he argues that if said ruling is reviewable by this court, it must be upheld because the evidence at the suppression hearing supports the trial court's determination. Defendant also argues that if the first confession was inadmissible, it follows, as a matter of law, that the second confession to Cardoza was the product of the first confession and likewise inadmissible. He contends that the rifle should have been held inadmissible, since its discovery was the direct result of the first confession, and that various items of physical evidence obtained in a search of his home should similarly have been excluded because the warrant authorizing that search was based upon defendant's two confessions. Finally, defendant asserts that under the recent decision in People v. Jimenez (1978) 21 Cal.3d 595, 147 Cal.Rptr. 172, 580 P.2d 672, he is entitled to a reversal of the judgment of conviction and a redetermination of the admissibility of the second confession because the record does not affirmatively demonstrate that the trial court utilized the beyond a reasonable doubt standard of proof in ruling upon the voluntariness of the second confession.

We first consider the question of whether this court is empowered to review the trial court's determination that defendant's first confession to Detective Cervi was inadmissible.

Section 1252 of the Penal Code was amended in 1927 to add the following provision: “On an appeal by a defendant, the appellate court shall, in addition to the issues raised by the defendant, consider and pass upon all rulings of the trial court adverse to the state which it may be requested to pass upon by the attorney general.” (Stats.1927, ch. 620, s 2, p. 1048.)

Although, on its face, this language appears to be quite broad in application, it has been given a more narrow judicial construction. In People v. Zelver (1955) 135 Cal.App.2d 226, 287 P.2d 183, the defendant was charged with and convicted of three offenses. The trial court concluded that two of the offenses were not severable, and granted a new trial on Count II of the indictment, then dismissed that count on its own motion. On defendant's appeal from the judgment of conviction, the Attorney General sought review of the orders which granted a new trial as to Count II and then dismissed that count. The appellate court held that, although these orders were erroneous, section 1252 of the Penal Code did not authorize the People to seek review of same where the defendant alone had appealed and where the result of said appeal was affirmance of the judgment of conviction. The court pointed out that the People's right to appeal was governed by section 1238 of the Penal Code and that the People could have appealed from the order granting a new trial as to Count II, but had failed to do so. The court then went on to state: “(Section 1252) was intended to give the People the right, on an appeal by the defendant, when a judgment of conviction is reversed, to raise points that might be involved on a retrial. The statute was not designed to give the People a right in the nature of an appeal. The right of appeal is governed by other sections of the code. Thus, although the ruling of the trial court was adverse to the People and erroneous, we have no power on the appeal by the defendant where an affirmance results, to rectify it by reversing or modifying the judgment in favor of the People.” (Pp. 236-237, 287 P.2d p. 189.)

The Zelver holding was followed by the California Supreme Court in People v. Burke (1956) 47 Cal.2d 45, 301 P.2d 241, where the defendant had appealed from a judgment of conviction and the Attorney General sought review of the trial court's order striking a prior conviction. The Supreme Court pointed out that the People could have filed their own appeal from the order in question and rejected the Attorney General's contention that the order was reviewable under section 1252 of the Penal Code. The court quoted with approval the language from the Zelver case which is set forth above.

The Zelver holding was again followed in People v. Green (1968) 264 Cal.App.2d 614, 70 Cal.Rptr. 647, where the defendant appealed from a judgment convicting him of two counts of receiving stolen property. The trial court had ruled that the defendant's arrest was illegal. The appellate court held that this finding necessitated a determination that a search of the defendant's room was likewise illegal because consent to the search was secured immediately following the illegal arrest and was inextricably bound up with the arrest. Although the Attorney General attempted to argue on appeal that the search was valid because based upon a Lawful arrest, the appellate court, citing Zelver, held that it could not review the trial court's ruling that the arrest was illegal where the result of such review would be affirmance of the judgment of conviction.

The Attorney General argues that the Zelver and Burke decisions are both distinguishable because they involved situations where the People could have obtained the desired appellate review by exercising their own right of appeal, whereas in this instance, there was no avenue of appeal open to the People. While the Attorney General tacitly concedes that People v. Green, supra, may not be so distinguished, he takes the position that that case was incorrectly decided in that it ignores the plain language of the 1927 amendment to section 1252 of the Penal Code. He finds compelling evidence of legislative intent in an excerpt from the Journal of the Senate (1927) at page 163: “The additional provision that the appellate court shall pass upon rulings adverse to the State which it is requested to consider by the Attorney General is deemed an important one. At the present time the State has no way to review rulings adverse to it made during the trial. The proposed amendment will give this right, and thus a way will be opened to settle many disputed questions.”

This case appears to present precisely the situation which the Legislature had in mind when it adopted the 1927 amendment to section 1252. Section 1238 of the Penal Code does not authorize an appeal by the People in this instance, therefore, if section 1252 is so interpreted as to preclude review of the order suppressing defendant's initial confession to Cervi, such order is binding upon this court even if clearly erroneous as a matter of law. Under the circumstances of this case, such a result is patently unreasonable. Here, the trial court held that the first confession to Cervi was inadmissible, but that the second confession to Cardoza was not, presumably because the court concluded that the second confession was not infected by or the product of the first. If the trial court erred in ruling that the first confession was inadmissible, it follows that the second confession was admissible and that the trial court's ruling to that effect was correct, even though based upon erroneous reasoning. Therefore, to preclude the Attorney General from making this argument would be contrary to the rule that a correct decision by the trial court must be upheld on appeal, even though based upon erroneous reasons. (People v. Towner (1968) 259 Cal.App.2d 682, 685, 66 Cal.Rptr. 559.) To preclude review of an erroneous ruling on the admissibility of the first confession would also violate that provision in the California Constitution which permits reversal of a judgment only for a miscarriage of justice. (Cal.Const., art. VI, s 13.)

Accordingly, we conclude that where the People have no independent right of appeal under section 1238 of the Penal Code, they may, on an appeal by the defendant and pursuant to the provisions of section 1252 of the Penal Code, obtain review of erroneous rulings by the trial court in order to obtain an affirmance of the judgment of conviction. Our conclusion in this regard is not contrary to the Zelver or Burke holdings, since both cases involved situations where the People did have an independent right of appeal, but failed to exercise same. To the extent that our determination is contrary to the reasoning of the Green case,³ we have concluded that Green ignores the plain language of section 1252 by unduly restricting the People's right to obtain appellate review of erroneous trial court rulings unfavorable to the People; also, that it leads to the improper result of reversing a judgment of conviction where there has been no miscarriage of justice.

The substantive issue to be resolved is whether the trial court erred in ruling that defendant's first confession to Cervi was inadmissible.

When announcing that it would suppress the first confession, the court stated that it was basing its ruling upon the fact that “there was inadequate admonition as to (defendant's) Miranda rights . . ..” However, the court had also indicated previously that it believed defendant's testimony that Cervi had told him that “it would be better for (him)” if he gave a statement.⁴ Thus, the trial court's decision to suppress the first confession must be upheld if the record supports a determination either that the first confession was obtained in violation of defendant's Miranda rights or as the result of improper inducement by Cervi. In resolving these questions, it is the duty of an appellate court to examine the uncontradicted facts and determine, independently, whether the confession was voluntary, hence admissible. (People v. Jimenez, supra, 21 Cal.3d at p. 609, 147 Cal.Rptr. 172, 580 P.2d 672; People v. McClary (1977) 20 Cal.3d 218, 227, 142 Cal.Rptr. 163, 571 P.2d 620; People v. Sanchez (1969) 70 Cal.2d 562, 571-572, 75 Cal.Rptr. 642, 451 P.2d 74.)

The record reveals that defendant was fully advised of his Miranda rights at 6 a. m. at the commencement of the second interview jointly conducted by Detective Cervi and Sergeant Seher. During the course of that interview, after the officers had confronted defendant with the splattered blood on his pants and Seher had told him that he did not believe his story, defendant invoked his Miranda rights and stated that he did not want to talk further without the presence of an attorney. The officers immediately terminated the interview and told defendant that they could not question him further and that defendant would have to reinitiate contact with them if he later decided that he wished to talk to them again.

Defendant was then arrested. While in the process of being booked, he asked to talk to Cervi alone and “off the record.” This request was granted, and when they were alone, defendant asked Cervi certain hypothetical questions concerning what would happen if he were in fact responsible for the homicides. Cervi told defendant that he would have to go to jail, but that it would be better for him if he gave Cervi a statement. Cervi then asked defendant if he was willing to give a tape recorded statement, and defendant agreed to do so. At the commencement of his statement, defendant was reminded that he had previously refused to talk further without an attorney. Defendant acknowledged that this was the case and also admitted that he had subsequently asked to talk further with Cervi. Defendant also stated that he was acting voluntarily and was still aware of his right to have an attorney present. Cervi did not readvise defendant of his right to remain silent or of the privilege against self-incrimination. Defendant then gave the first confession.

There is ample authority for the proposition that a Miranda warning is not required before each custodial interrogation of a suspect by the police; that one such warning, adequately given, is sufficient for subsequent interrogations. (People v. Johnson (1969) 70 Cal.2d 469, 477, 74 Cal.Rptr. 889, 450 P.2d 265; People v. Sievers (1967) 255 Cal.App.2d 34, 37-38, 62 Cal.Rptr. 841.) However, it is also the rule that where a suspect is given a Miranda warning and invokes his rights by refusing to talk to the police without an attorney, a subsequent admission or confession given by the suspect will be held admissible only if the subsequent interview was voluntarily initiated by the suspect and there was no evidence of coercion, pressure, compulsion or any suggestion of leniency. (People v. Brockman (1969) 2 Cal.App.3d 1002, 1007-1011, 83 Cal.Rptr. 70; People v. Duran (1969) 269 Cal.App.2d 112, 116-117, 74 Cal.Rptr. 459.)

For his second point, defendant relies upon such cases as People v. Brommel (1961) 56 Cal.2d 629, 632, 15 Cal.Rptr. 909, 364 P.2d 845, and People v. Russell (1968) 259 Cal.App.2d 637, 646, 66 Cal.Rptr. 594, as authority for the proposition that a statement by the police that “it would be better for” a suspect to make a full disclosure or tell what he knows, renders a subsequent confession or admission involuntary as a matter of law. In Brommel, the interrogating officer did not confine himself to advising the defendant that it would be better for him to tell the truth, but also told him that if he refused to admit his complicity in the offense, he would be branded a liar in the eyes of the trial judge, would not be believed in anything he said, and would be accorded no leniency whatever. (P. 633 of 56 Cal.2d, 15 Cal.Rptr. 909, 364 P.2d 845.) Russell involved a situation where the giving of a Miranda warning to the defendant was immediately followed by the suggestion that it might be better for the defendant if he talked. (P. 644 of 259 Cal.App.2d, 66 Cal.Rptr. 594.) Since this suggestion was given as a supplement to the Miranda warning, the appellate court concluded that at the very least, it qualified the Miranda warning and rendered it unclear. (Pp. 645-646, 66 Cal.Rptr. 594.) The court was also of the opinion that even if the suggestion that it would be better for the defendant if he talked were viewed as a separate inducement which did not detract from the Miranda warning, it nevertheless constituted improper conduct on the part of the officer and rendered the defendant's statement inadmissible. The court stated, “The words ‘it might be better for you’ when made, as in this case, to a suspect in the isolation of an interrogation room can too easily be interpreted as an implied threat or cajolery to be equated with a statement whose sole purpose is to point out to the suspect the benefit which ‘follows naturally from a truthful and honest course of conduct.’ ” (P. 646, 66 Cal.Rptr. p. 600.)

On the other hand, the mere statement to a suspect that it would be better for him to tell the truth, when unaccompanied by any threat or promise, does not render a subsequent confession involuntary. (People v. Jimenez, supra, 21 Cal.3d at p. 611, 147 Cal.Rptr. 172, 580 P.2d 672; People v. Hill (1967) 66 Cal.2d 536, 549, 58 Cal.Rptr. 340, 426 P.2d 908; People v. Ditson (1962) 57 Cal.2d 415, 432, 20 Cal.Rptr. 165, 369 P.2d 714; People v. Nelson (1964) 224 Cal.App.2d 238, 250, 36 Cal.Rptr. 385.) In People v. Hill, supra, 66 Cal.2d at page 549, 58 Cal.Rptr. at page 348, 426 P.2d at page 916, the California Supreme Court stated the rule simply and succinctly: “When the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, we can perceive nothing improper in such police activity. On the other hand, if in addition to the foregoing benefit, or in the place thereof, the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible.”

In this instance, we hold that, since defendant had been recently and fully advised of his Miranda rights, Detective Cervi was not required to repeat such admonition after defendant voluntarily asked to talk with Cervi privately. In our view, this determination finds support in defendant's statements made immediately prior to his second confession to Cardoza, wherein he acknowledged that he had understood his Miranda rights and had had them in mind when he initiated the “off the record” discussion with Cervi.

Also, we conclude that defendant's claim that his confession to Cervi was involuntary because induced by a promise of leniency is without merit. At that point in time when Cervi suggested to defendant that it would be better for him to give a truthful statement, Cervi, in response to a hypothetical question posed by defendant, had just stated that even if defendant cooperated with the deputies and admitted his complicity in the homicides, there was still no alternative to his going to jail. Viewed in this context, the remark that it would be better for defendant to give a statement could not reasonably have been interpreted by defendant as a promise of leniency; simply a suggestion that it is a good thing to tell the truth. A statement of this nature does not render a confession involuntary and inadmissible. This situation is clearly distinguishable from People v. Russell, supra, 259 Cal.App.2d 637, 66 Cal.Rptr. 594. Here, Detective Cervi's statement was not given as a supplement to a Miranda warning and cannot be viewed as qualifying such warning. Defendant had previously been given the Miranda admonition, had invoked his right not to talk further with the officers and had then voluntarily initiated a conversation with Cervi after the prior questioning had been terminated. Also, in Russell, the suggestion that it would be better for the defendant to talk was not preceded by any statement to the effect that telling the truth would gain the defendant no benefit in terms of more lenient treatment and that he would have to go to jail in any event.

We are also of the opinion that defendant had arrived at his own independent decision to confess when, during the course of the booking process, he was asked to name his next of kin. According to Cervi's uncontradicted testimony, defendant responded to this question by momentarily falling silent and then asking to talk to Cervi alone. When this request was granted, defendant immediately began propounding hypothetical questions indicative of his guilt. Undoubtedly, Cervi's routine and innocuous questions precipitated a normal human reaction: momentary silence when defendant then realized that he had murdered his next of kin. Understandably, the stark reality of this monstrous deed prompted a strong desire to unburden himself on someone. Cervi did nothing to improperly induce or coerce a confession; he merely allowed events to pursue an inevitable course. His admonition to defendant that it would be better to give a statement, when considered in context with his warning that, in any event, defendant would go to jail, could not reasonably constitute any form of psychological or other unlawful inducement to confess. Thus, defendant's first confession was not the product of improper or illegal conduct on the part of Cervi; instead, it found its independent origin in defendant's deep feelings of guilt. Contrary to the trial court's determination, that confession was freely and voluntarily given, hence admissible into evidence.

Our determination that defendant's first confession to Cervi was admissible establishes that the trial court was correct in admitting the second confession into evidence, even though the court may have based its ruling upon erroneous reasons. Defendant's sole basis for attacking the second confession is that it was the product of a prior confession which was inadmissible because improperly induced. Since we have concluded that this latter premise is unsound, it is evident that the second confession was properly admitted. The same reasoning defeats defendant's claim that the trial court erred in admitting the rifle and the physical evidence seized in the search of his home. Here again, defendant's argument is based upon the erroneous premise that the two confessions were inadmissible and that the rifle and other items of physical evidence were inadmissible because they were products of such confessions.

We have also concluded that there is no merit to defendant's contention that the record does not affirmatively establish that the trial court applied the beyond a reasonable doubt standard in ruling upon the admissibility of the confessions, as mandated by People v. Jimenez, supra, 21 Cal.3d 595, 147 Cal.Rptr. 172, 580 P.2d 672. The Jimenez court stated, “since any error as to the standard of proof applied in determining the voluntariness of a confession relates only to a question of preliminary fact, we have concluded that the effect of any such error should be measured in accordance with the standard enunciated in People v. Watson (1956) 46 Cal.2d 818, 837, 299 P.2d 243; thus when it appears after looking at the whole record of the voluntariness hearing that there is no reasonable probability that a result more favorable to the appealing party would have been reached in the absence of the error, the trial court's finding of voluntariness should be sustained on appeal.” (P. 609, 147 Cal.Rptr. p. 180, 580 P.2d p. 680.)

In this instance, the evidence bearing upon the circumstances under which defendant's confessions were made is uncontradicted and furnishes no support for a finding that either confession was improperly induced. We conclude that there is no reasonable probability that defendant would have obtained a more favorable result on his motion to suppress evidence had the trial court applied the beyond a reasonable doubt standard.

The judgment of conviction is affirmed.

FOOTNOTES

1.  Defendant, testifying at the pretrial hearing on his motion to suppress evidence, admitted that Cervi told him that he would have to go to jail. However, defendant testified that Cervi also told him that it “would be better for (defendant)” if he gave Cervi a statement.

2.  In view of the pretrial ruling that defendant's second confession was admissible, defendant's trial counsel concluded that defendant's best defense was diminished capacity. He further concluded that defendant's first confession, which had been suppressed, would lend support to that defense, since it contained references to defendant's use of the drug “crystal.” Accordingly, defense counsel stipulated to the admissibility at trial of the first confession on the condition that such stipulation would not constitute a waiver of defendant's right to challenge, on appeal, the rulings made at the suppression hearing.

3.  The correctness of the holding in People v. Green (1968) 264 Cal.App.2d 614, 70 Cal.Rptr. 647, was apparently questioned in People v. Magana (1969) 272 Cal.App.2d 388, 389, fn. 1, 77 Cal.Rptr. 436.

4.  Defendant's testimony in this regard was never contradicted by Detective Cervi. Although the prosecutor indicated at one point that he intended to recall Cervi for that purpose, he failed to do so.

ROUSE, Associate Justice.

TAYLOR, P. J., and KANE, J., concur.