PEOPLE v. WILLIAMS (1980)

Appellant Dermon Louise Williams was charged in count I with the crime of murder in violation of section 187 of the Penal Code. Two special circumstances were alleged: that the murder was committed in the commission of a robbery in violation of section 211 of the Penal Code and a burglary in violation of section 460 of the Penal Code. In counts II and V, appellant was charged with the crime of burglary in violation of section 459 of the Penal Code and in counts III, IV and VI with the crimes of robbery in violation of section 211 of the Penal Code.

Appellant pleaded not guilty and denied the special circumstances allegations. A trial by jury was commenced and a mistrial was declared when the jury was unable to reach a verdict on any of these counts.

A second trial was commenced and a hearing was held pursuant to section 402 of the Evidence Code to determine the admissibility of the confession of the appellant. The court found beyond a reasonable doubt that there was a knowing and intelligent waiver of constitutional rights and that the appellant's statements were freely and voluntarily made. Appellant was found guilty on all counts and the special circumstances were found to be true. Appellant was ordered to be imprisoned in the state prison for life without the possibility of parole on the principal count of murder. Sentences on the other counts were stayed.

Appellant contends that (1) based on the evidence, the trial court should have determined that the Miranda advisement failed to establish that appellant knowingly, intelligently and voluntarily waived her right to remain silent; and (2) the trial court erred in holding that it did not have the power to stay the execution of sentence as to the special circumstances.

I

The only recitation of facts necessary to a determination of this appeal relates to appellant's confession.

Mrs. Williams testified as follows: After the robberies and murder were charged against her she traveled to Memphis, Tennessee, and stayed with her mother. While there she told her mother that she had been involved in a murder, and her mother told her to return to Long Beach and give herself up. She returned to Los Angeles by Continental Trailways Bus at 5 o'clock in the morning on Friday, January 12, and she walked to the police station, arriving there at approximately 5:10 in the morning. She told “the people” that she wished to talk to a homicide detective, and they informed her that she would have to wait until 8 o'clock. She sat in the lobby and waited.

Officer William Collette testified that on the morning of January 12, 1979, Mrs. Williams was brought into his office by another officer and sat down in a chair next to his desk. He was talking on the telephone but he looked at Mrs. Williams and recognized her as Dermon Williams from a photograph which he had previously seen and from which she had been identified. Officer Collette asked Mrs. Williams what she wanted, and she stated that “she wanted to talk to me about some cases she was involved in.” “I said ‘What cases?’ And she said, ‘A robbery and a murder.’ ” He then took her to an interview room and read her her rights from PD Form 254 as follows:

“ ‘You have the right to remain silent.

“ ‘Anything you say can and will be used against you in a court of law.

“ ‘You have the right to talk to a lawyer and have him present with you while you are being questioned.

“ ‘If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish one.’ ”

He then read her the following questions:

“ ‘Do you understand each of these rights I've explained to you?’

“And she answered, ‘Yes.’

“I then asked her:

“ ‘Having these rights in mind, do you wish to talk to us now?’

“And she answered, ‘Yes, I want to talk.’ ”

Officer Collette went on to testify that Mrs. Williams did not appear to be under the influence of alcohol or drugs; that she was not promised anything in exchange for her confession; and that he considered her confession to be free and voluntary.

Appellant concedes that the warning given her by Officer Collette does not appear to be insufficient, but contends the questions asked by the officer to ascertain her understanding of that warning pose a problem. We disagree.

It is true that a recitation of the four required warnings set forth in Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, are not satisfied by a mechanical recitation of those warnings. Further, the burden is on the People to establish that the warnings were given and that the defendant understood them and voluntarily and intelligently waived those rights. (People v. Stewart (1968) 267 Cal.App.2d 366, 73 Cal.Rptr. 484.)

People v. Bennett (1976) 58 Cal.App.3d 230, 238, 129 Cal.Rptr. 679, tells us that whether a “Miranda warning is adequate depends upon the particular facts and circumstances of the case, including the background, experience and conduct of the accused.” In the case before us appellant argues that it is not “self evident that the lady wanted to talk”; that what is evident is that the appellant went to the police station to find out about her daughter, who was in custody at the time. The testimony elicited from the appellant clearly supports the contention of the People that the appellant went to the police station to talk to an officer about her involvement in the murder. From the testimony of the appellant it appears that she did so on the advice of her mother that she should give herself up.

Appellant cites us to the case of People v. Manis (1969) 268 Cal.App.2d 653, 668, 74 Cal.Rptr. 423, where in a footnote the court set forth the admonition recommended by the Los Angeles Police Department for use by its officers. As pointed out, this recommendation requires the officer to ask the following questions following the admonition: Do you understand each of these rights I have explained to you? Do you wish to give up the right to remain silent? Do you wish to give up the right to speak to an attorney and have him present during questioning?

Appellant urges that we not equate Officer Collette's asking appellant, “ ‘Do you understand each of these rights I've explained to you,’ ” and “ ‘Having these rights in mind, do you wish to talk to us now,’ ” with the approved language of the Los Angeles Police Department. The court in People v. Manis, supra, used the Los Angeles Police Department's form to show the length of time that is required in a proper recitation of rights. It was not the intention of that court to imply that only the language recommended by the police department could convey a complete understanding of those rights. Nor is the fact that appellant did not understand the concept of felony-murder determinative of whether she understood that she had the right to consult an attorney before being interrogated by Officer Collette.

We conclude that there is ample evidence to support a finding that the appellant went to the police station freely and voluntarily, intending to confess to her involvement in certain criminal activity. Prior to any interrogation she was properly advised of her Miranda rights and thereafter freely, voluntarily, and with understanding, waived those rights. The court committed no error in admitting the statements of the appellant into evidence.

II

Appellant urges that a trial court should have the power to dismiss a special circumstance, found true by a jury, in the interest of justice pursuant to section 1385 of the Penal Code. At the time of sentencing, the trial court said: “Insofar as this defendant is concerned, the evidence appears that she was one of the persons who planned the operation, she was the person who applied one ligature to the mouth of the victim and behind the neck. (P) Now, by the testimony of the doctor it appears because of the age of the victim and the fragility of the neck bones that the application caused a fracture in one of the processes of the neck which, in turn, put pressure on the spinal cord. (P) This doctor without dispute said that as to cause of death, without medical intervention either the stab wound and/or the application of ligature and fracture with the pressure on the spinal cord together or separately would ultimately have brought the death of the lady. (P) But on a scaling, I feel that on culpability this defendant was much less culpable than the defendant Eddie Palmer. (P) My desire legally would be to sentence this lady and eliminate by staying the execution of the special circumstances and eliminate the without possibility of parole. I do not believe that looking at the Penal Code and the intent of the Legislature and as interpreted by the Appellate Courts, I do not believe I have that power. So I will have to sentence as I did with Eddie Palmer.”

Although appellant urges vehemently to the contrary, we find the reasoning in Rockwell v. Superior Court (1976) 18 Cal.3d 420, 134 Cal.Rptr. 650, 556 P.2d 1101, to be dispositive of this issue.

Penal Code section 1385 provides that the court may either on its own motion or upon the application of the prosecuting attorney, and in the furtherance of justice, order an action to be dismissed. Appellant contends that since the trial court's power to dismiss an action under Penal Code section 1385 includes the power to dismiss a part, but not all, of the allegations of an accusatory pleading in the interest of justice, even after a jury verdict of guilt, that it may likewise dismiss an allegation of special circumstance. The question is whether the detailed provisions governing special circumstances, as set forth in Penal Code sections 190.2 and 190.3, lead to a conclusion that the court has no power under the general grant of authority of Penal Code section 1385 to stay the execution of the special circumstances.

The Rockwell court tells us that to make this determination we look to the language of the statutes and to their legislative history. When Penal Code sections 190 through 190.3 were amended to include aggravating and mitigating factors, the mandatory language of section 190.2 remained the same. “The penalty for a defendant found guilty of murder in the first degree shall be death or confinement in state prison for a term of life without the possibility of parole in any case in which one or more of the following special circumstances has been charged and specially found under section 190.4, to be true: ” The conclusion of the Rockwell court that the Legislature did not intend the jury verdict on special circumstances to be merely advisory, is as applicable to the present statute as it was to the statute considered by that court. Section 24 of Statutes of 1977, chapter 316, page 1265 provides: “If any word, phrase, clause, or sentence in any section amended or added by this act, or any section or provision of this act, or application thereof to any person or circumstance, is held invalid, and as a result thereof, a defendant who has been sentenced to death under the provisions of this act will instead be sentenced to life imprisonment, such life imprisonment shall be without possibility of parole. The Legislature finds and declares that those persons convicted of first degree murder and sentenced to death are deserving and subject to society's ultimate condemnation and should, therefore, not be eligible for parole which is reserved for crimes of lesser magnitude.”

We conclude that the use of the mandatory term “shall” in Penal Code section 190.2 is reflective of the Legislature's intent that the finding of the truth of a special circumstance compels a penalty of either death or life without possibility of parole for first degree murder. The trial court was correct in concluding that the statute forbids the dismissal, in the interest of justice, of a special circumstance found to be true by a jury.

The judgment is affirmed.

WOODS, Associate Justice.

FILES, P. J., and MUNOZ, J.*, concur.