PEOPLE v. DOTSON (1982)

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;  a friend had informed appellant that there was some money in the Krueger house, and appellant was particularly looking for that and for diamonds.

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 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, 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, 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, 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;  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.)   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.

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.  “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.’ ”  (People v. Thompson, supra, 27 Cal.3d 303, 329–330, 165 Cal.Rptr. 289, 611 P.2d 883.)   In the present case, there was no showing that the statements appellant made were not voluntary.   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.   That evidence well supports the finding of the trial court that the statements were voluntary.

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 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.   In my view, the trial court committed prejudicial error in admitting appellant's confession at trial.   As I would reverse on that ground, I express no opinion on the remainder of the issues discussed in the lead opinion.

California law, both constitutional and statutory, requires prompt arraignment of individuals arrested for crimes.  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;  ․”

This case presents in stark terms a simple question:  does the fundamental constitutional right of an arrested person to “be taken without unnecessary delay before a magistrate” really mean 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 phone calls, the public defender would have been immediately notified, and arraignment would have followed.

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.” ¹

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

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

All of the principal purposes for requiring promptness in arraignment jump out from the facts of this case:  to prevent secret police interrogation, to place the issue of probable cause for the arrest before a judicial officer, to provide the defendant with full advice as to his rights and an opportunity to have counsel appointed, and to enable him to apply for bail or for habeas corpus when necessary.   The critical factor is whether the delay was a matter of necessity.  (People v. Thompson (1980) 27 Cal.3d 303, 329, 165 Cal.Rptr. 289, 611 P.2d 883.)   For obvious reasons here, no one has the temerity to argue that the deliberate delay of arraignment was necessary.  “Subject to obvious health considerations [fn. omitted] the only permissible delay between the time of arrest and bringing the accused before a magistrate is the time necessary:  to complete the arrest;  to book the accused;  to transport the accused to court;  for the district attorney to evaluate the evidence for the limited purpose of determining what charge, if any, is to be filed;  and to complete the necessary clerical and administrative tasks to prepare a formal pleading.  [Citations.]”  (People v. Williams (1977) 68 Cal.App.3d 36, 43, 137 Cal.Rptr. 70, disapproved on other grounds in People v. Bustamante (1981) 30 Cal.3d 88, 102, 177 Cal.Rptr. 576, 634 P.2d 927, emphasis added.)

Although the right to a prompt arraignment is called a fundamental right of the arrested person (People v. Powell (1967) 67 Cal.2d 32, 59, 429 P.2d 137), a confession taken during such a period of illegal detention is not ipso facto inadmissible in California as it would be in federal courts.  (Rogers v. Superior Court (1955) 46 Cal.2d 3, 291 P.2d 929.)   In justifying its refusal to adopt an ipso facto rule, the California Supreme Court emphasized 27 years ago that illegal detentions are not inherently coercive.   For this reason the court found lacking the “essential connection” between a confession and the detention during which it was elicited that exists between an illegal search and the evidence obtained which serves to justify automatic or ipso facto 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 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 begining 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, 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, 502 P.2d 513;  People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 412, 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.”

Thus, the Supreme Court of California upon being presented squarely with the question might now invoke an ipso facto rule for California since its sole reason for rejecting one in 1955 was its determination that interrogation of a suspect in police custody is not inherently coercive, a conclusion it has itself rejected consistently and explicitly since 1968.

However, it is unnecessary to determine whether the California Supreme Court has impliedly overruled its determination that any confession taken during a period of illegal detention is inadmissible.   Here appellant demonstrated that his confession must be excluded under existing law.

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, supra, 46 Cal.2d at p. 10, 291 P.2d 929.)   It continues to be a valid test.  (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.

An alternative attack, first discussed in Rogers,³ was recently reaffirmed in 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.]”  (People v. Thompson, supra, 27 Cal.3d at pp. 329–330, 165 Cal.Rptr. 289, 611 P.2d 883.)   Under this test it is not enough for a defendant to show illegal detention caused by police inadvertence, negligence, laziness or the like.   Instead, the defendant 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 admission.⁴

That is exactly what happened here:  the police willfully delayed booking appellant for the purpose of obtaining statements from him.   This illegal and unnecessary delay in arraignment admittedly was designed for the sole purpose of inducing the confessions.   As the officer in charge put it “I wanted to see if he would give me a statement regarding the murder investigation.”   Thus, appellant 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 error.

Violation of a suspect's right to be taken before a magistrate with 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 even if the only evidence considered is the testimony of police officials.   The police admitted that with full knowledge of appellant's right to and the availability of a speedy arraignment, they nevertheless held him, incommunicado, without booking or arraignment for the purpose of obtaining a confession.⁵  These unlawful acts resulted as a matter of law in prejudice to appellant when the results of that illegality were introduced at trial.

I would reverse the judgment.

APPENDIX A

MICHAEL SITTERUD

called as a witness on behalf of the People, being first duly sworn, testified as follows:

THE CLERK:  Would you state your name and spell your last name?

THE WITNESS:  Michael Sitterud, S-i-t-t-e-r-u-d.

THE COURT:  Sergeant, how are you today?

THE WITNESS:  Fine, thank you, sir.

DIRECT EXAMINATION BY MR. PAYNE

MR. PAYNE:  Q. Sergeant, we have entered into certain stipulations about your activities in the morning of December 29th, 1979, with respect to the defendant, Ricky Dotson.

You are an Oakland Police Sergeant assigned to the Homicide Division;  is that correct?

A. Yes.

Q. And you arrested the defendant at 7:10 in the morning at his home pursuant to an arrest warrant;  is that correct?

A. Yes.

Q. And at 7:20 a.m. you directed Officers Gingerly and Politzer to transport the defendant to the Oakland Police Department?

A. Yes.

Q. And you remained at the defendant's home and executed a search warrant?

A. Yes.

Q. And you returned to the Oakland Police Department around 8:30 in the morning?

A. Yes.

Q. What directions did you give to Gingerly and Politzer when you directed them to transport the defendant to OPD?

A. To take him to Homicide Section and hold him there until I got to the office.

Q. Were they directed as to whether or not they or other people were to speak to the defendant?

A. They were told that no one was to speak to him until I got there.

Q. Given the circumstances that you had just arrested the defendant for murder, pursuant to a warrant, was it unusual that you directed them to transport the defendant to the Oakland Police Department and not to talk to him until you could arrive at the Oakland Police Department?

A. No, that wasn't unusual at all.

Q. And I take it, you did not direct Gingerly and Politzer to transport the defendant to the Oakland Police Department and book him through the Sheriff's Office.

A. No.

Q. Why did you not do that?

A. Because I wanted to talk to him before he was booked in.

Q. Now what was your reason for wanting to talk to him before he was booked in?

A. I wanted to see if he would give me a statement regarding the murder investigation.

Q. You then returned at 8:30 and at 8:35 you gave the defendant a pack of cigarettes from—

A. Yes.

Q. —his mother?

A. Yes.

Q. And then you called Ashley Crooker and asked him to check the known latent impressions of Dennis Thomas against the latents taken from the murder scene?

A. Yes, I did.

Q. And that was because the defendant's mother had previously told you Dennis Thomas was a frequent companion of the defendant?

A. Yes.

Q. Then at 8:40, you and Sergeant Clark went into the interview room and met with the defendant;  is that correct?

A. Yes.

Q. And did you advise the defendant fully of his Miranda rights?

A. Yes, I did.

Q. And did he state that he understood those rights?

A. Yes, he did.

Q. And did he state that having in mind those rights he did wish to talk to you without the presence of an attorney?

A. Yes, he did.

MR. CIRAOLO:  Your Honor, excuse me, at this point I wish the record to note my objection as to the completeness and voluntariness of the admonishment and just on the state of the record so far—

THE COURT:  The record will show that objection.

MR. CIRAOLO:  Thank you, Your Honor.

MR. PAYNE:  Q. In what manner did you advise the defendant of his rights?

A. I read the rights to him from a statement form printed on the top of the statement form.   I then gave him a statement form and asked him the questions that were there:  if he understood the rights and did he wish to talk to us.

He said yes.

I then asked him to sign his name on both lines that he understood those rights and was willing to talk to us.

Q. Did the defendant appear to understand the rights that you mentioned to him?

A. Yes.

Q. At any time in the morning of December 29th, 1978, did you or anyone in your presence make any threats against the defendant?

A. No.

Q. At any time during the morning of December 28th, 19—29th, 1978, did you or anyone in your presence make any promises to the defendant?

A. No.

Q. Between 8:40 and 9:00 did you then take a statement from the defendant, which statement you reduced to writing in your hand?

A. Yes, I did.

Q. And did you then read that statement to the defendant?

A. Yes, I did.

Q. And did you give the defendant an opportunity to read that statement?

A. Yes, I placed the statement in front of him, I traced the words with the non-writing end of a pen as I read it aloud to him so he could also read it.

Q. Did the defendant tell you that that statement, the written statement, was the truth?

A. Yes, he did.

Q. And did he then sign that statement?

A. Yes, he did.

Q. And was that statement in essence a denial of any complicity in these offenses and a denial of ever having gone into the victim's house?

A. Yes, it was.

Q. At 9:00 did you and Clark then leave the room?

A. Yes.

Q. And at 9:05 did you ask the defendant if he wanted to use the restroom?

A. Yes.

Q. Did you and Clark then take the defendant to the restroom and return him to Room 202?

A. Yes.

Q. Did you leave him in the room with coffee?

A. Yes.

Q. At 9:15 a.m. did you and Clark return to Room 202?

A. Yes.

Q. And did you remind the defendant that his rights were still in effect?

A. Yes.

Q. Did you then have further conversation with him for about ten to fifteen minutes?

A. Yes.

Q. Near the end of that conversation did you leave the room and get the fingerprint report, which fingerprint report matched the defendant's known prints with latents found from the house?

A. Yes.

Q. And did you near 10:00 then confront the defendant with the fingerprint report?

A. Yes.

Q. Did the defendant pause for a few seconds and then tell you that he wanted to tell you the truth?

A. Yes, he did.

Q. Did he then between 10:00 and 10:20 make a verbal statement to you wherein he admitted he and Dennis Thomas had committed the instant offense?

A. Yes.

Q. Did you then ask the defendant whether it was okay to tape a statement?

A. Yes, I did.

Q. And did he say it was?

A. Yes.

Q. Did you then leave to get a tape recorder?

A. Yes.

Q. At that time did Ashley Crooker call?

A. Yes.

Q. Did you receive information from Ashley Crooker that he had matched Dennis Thomas' latents with the known—with the latents—strike that.

Did you then receive information from Crooker that he had matched Dennis Thomas' known prints with latents found from the Krueger home?

A. Yes, I did.

Q. Did you then return to Room 202?

A. Yes.

Q. And did you between 10:30 and 10:55 take a taped statement from the defendant?

A. Yes.

Q. And did you then again advise the defendant of his rights and refer the defendant to his earlier admonition and waiver?

A. Yes, I did.

Q. And did the defendant again state that he understood his rights and was willing to talk to you?

A. Yes, he did.

Q. Prior to 11:00 in the morning of December 29th, 1978, did the defendant ever complain of anything to you?

A. No, he didn't.

Q. And prior to 11:00 in the morning of December 29th, 1978, did you or Clark give the defendant any factual information about the nature of the injuries done to the victim or the physical condition of the crime scene?

A. No.

Q. Other than the fact that his and Dennis Thomas' fingerprints were there?

A. That's true.

Q. In your experience as an Oakland Police Officer, if you directed Politzer and Gingerly to transport the defendant to booking, when, in the normal course of events, would the defendant have been arraigned, assuming December 29th, 1978 was a Friday?

MR. CIRAOLO:  Objection;  irrelevant and immaterial.

THE COURT:  Overruled.

THE WITNESS:  It would have been either Monday afternoon or Tuesday morning of the following week.

MR. PAYNE:  Q. Now, in the normal course of events, as far as you know, what would have happened if you had directed Gingerly and Politzer to take the defendant to booking?   In other words, what would the process have been from that point?

A. He would have been booked into jail and eventually the court clerk on the following week would put him on the Court's calendar for Monday afternoon or Tuesday morning for arraignment.

MR. PAYNE:  Thank you.   I have no further questions.

THE COURT:  How long have you been with the Oakland Police Department?

THE WITNESS:  Ten years.

THE COURT:  How long have you been assigned to the Homicide Division?

THE WITNESS:  A year and a half.

THE COURT:  Mr. Ciraolo, you may cross-examine this witness.

MR. CIRAOLO:  Thank you.

CROSS–EXAMINATION BY MR. CIRAOLO

MR. CIRAOLO:  Q. Sergeant Sitterud, on the 28th of December of 1978, you prepared an affidavit in support of a warrant for arrest and submitted that to Judge Patel;  is that correct?

A. Yes.

Q. And Judge Patel issued a warrant for the arrest of Ricky Dotson, based on the information you have in that affidavit?

A. Yes.

Q. And that was at approximately 5:00 in the evening;  is that correct?

A. Yes.

Q. Shortly thereafter, you prepared another affidavit for a search warrant, and you presented that to Judge Travis and he signed and issued you such a warrant and that was at 6:35;  is that correct?

A. Yes.

Q. In your affidavit on the arrest warrant submitted to Judge Patel, you basically indicated that you had fingerprints of Mr. Dotson connecting him with the crime scene, that he lived in the approximate area, in your opinion, and that you felt there was sufficient cause to arrest Mr. Dotson;  is that correct?

A. Yes.

MR. CIRAOLO:  Your Honor, for the purposes of this hearing, may this be marked?

THE COURT:  Marked as Court's Exhibit No. 1.

[Affidavit in support of arrest warrant was marked as Court's Exhibit 1 for identification.]

MR. CIRAOLO:  Q. Mr. Sitterud, this appears to be a photocopy of the affidavit that you prepared, two-page document in support of the arrest warrant.

A. Yes, it does.

Q. And that has, to summarize basically, the information that you felt Mr. Dotson had committed this crime or was involved in it, based on fingerprints that were recovered at the crime scene?

A. Yes.

Q. Now, when you went the following morning to arrest Mr. Dotson, were one of those warrants restricted to service in daytime?

A. Yes, the search warrant.

Q. Okay.   And you went the following Monday to serve both the arrest warrant and search warrant;  is that correct?

A. Yes.

Q. Now, the expedition to the Dotson residence consisted of yourself, Sergeant Clark, two uniformed officers:  Gingerly and Politzer, and was there another officer involved?

A. Lieutenant Green was also there.

Q. Lieutenant Green.   Now even though he ranks, you were normally in charge of this case;  is that correct?

A. Yes.

Q. And Politzer and Gingerly were operating under your direction and control?

A. Yes.

Q. And they were uniformed officers?

A. Yes.

Q. Now when you arrested Mr. Dotson, you arrested him in the bedroom of his home?

A. The upper floor outside of the bedroom.

Q. And was he asleep when you first observed him?

A. No, he was standing up.

Q. Okay.   You placed him under arrest and then you ordered Gingerly and Politzer to take him to the Homicide Division of the Oakland Police Department?

A. Yes.

Q. And you gave them specific instructions that they were to take him no place else but to the Homicide Division?

A. Yes.

Q. Now is it not the normal policy of the Oakland Police Department, when a person is arrested, they be taken to the jail?

MR. PAYNE:  Objection, are we talking about people arrested for murder or warrants or drunks or what?

THE COURT:  I do prefer, Mr. Ciraolo, that you be a little more specific as far as this question is concerned because it is a little bit broad.

MR. CIRAOLO:  Q. When an officer arrests an individual in the City of Oakland, regardless of the offense, is there a general order instructing that officer to take the individual arrested to the jail division?

A. No, there isn't.

Q. To your knowledge are the Oakland Police Department officers instructed as to the requirements of the Penal Code?

A. Yes.

Q. And to your knowledge does part of that instruction include cases of Penal Code Section 825 where a person is to be taken before a Magistrate without undue delay;  is that correct?

A. Yes.

Q. Even though that may not be a general order, that is part of the instructions that a person is to be taken before a Magistrate without undue delay;  is that correct?

A. Yes.

Q. And the process that you are aware of, as it existed in Oakland in December of 1978, was that a person would be brought to the Jail Division, and the Jail Division would generate the paperwork to get it before the Magistrate;  is that correct?

A. Yes.

Q. And by that, I mean when a person is booked in, the Jail Division makes computer inputs for all agencies concerned with the courts to get that information?

A. Yes.

Q. Now you in effect told Gingerly and Politzer not to book him in;  is that correct?

A. That's correct.

Q. And you specifically told them not to have him speak with anybody?

A. Yes.

Q. And you specifically told them to keep him in the interrogation room of the Homicide Division?

A. Yes.

Q. And this is a room soundproofed, set off by itself, not available to the public and with no telephone or public facilities in there;  is that correct?

A. That's true, although it is not soundproofed.

Q. It is basically a room, desk and a couple of chairs or a table and couple of chairs?

A. Yes.

Q. And a viewing glass?

A. There's no—there's a small—

Q. Door?

A. In the door, a viewing glass, yes.

Q. Now you then in effect told Politzer and Gingerly to keep Mr. Dotson incommunicado until you arrived?

A. Yes.

Q. And your purpose for that was you wanted to talk to Mr. Dotson?

A. Yes.

Q. You wanted to get a statement from Mr. Dotson?

A. Yes.

Q. And this is despite the information you already had that was sufficient for a Magistrate to issue a warrant;  is that correct?

A. Yes.

Q. Now when you finally arrived, Mr. Dotson was in this interrogation room;  is that correct?

A. Yes.

Q. From the time you took Mr. Dotson into custody and he was transferred to the interrogation room, he was not free, he could not go about if he wanted to;  is that correct?

A. Yes.

Q. He could not make any telephone calls unless you permitted it?

A. Yes.

Q. He could not do anything unless you authorized it?

A. Yes.

Q. Now when you first arrived at the Oakland Police Department, you took a statement from Mr. Dotson wherein Mr. Dotson denied involvement in the offense;  is that correct?

A. Yes.

Q. And from that information, you had the opinion that Mr. Dotson was lying to you;  is that correct?

A. Yes.

Q. And you finally decided to confront Mr. Dotson with the information you already had, namely his fingerprints and the other circumstances, and you did so confront him with that information?

A. Yes.

Q. And after you confronted him with that information, he gave you an oral statement admitting his involvement in this case, and subsequently a taped statement?

A. Yes.

Q. And later on, you contracted Mr. DaVega of the District Attorney's Office, and he and one of his associates took a taped statement from Mr. Dotson?

A. Yes.

Q. Now, you are aware that Room 202 of the Oakland Police Department Homicide Division is on the second floor and on the same floor approximately 150 feet away is a courtroom;  is that correct?

A. Yes.

Q. And were you aware of any Magistrate sitting on the morning of December 29th in the Oakland Municipal Court?

MR. PAYNE:  Objection;  vague as to what time.

THE COURT:  Overruled.

Do you understand the question, Sergeant?

THE WITNESS:  I'm sure there were Judges there, yes.

MR. CIRAOLO:  Q. Now, you are aware when a person is booked into the Oakland Police Department, and the process that was in effect in December of 1978, the minute a person is booked in and inputted into the system, they have the opportunity to phone calls;  is that correct?

A. Yes.

Q. Their existence in custody is made aware of by other agencies, the court clerk, are you aware of that, sir?

A. Yes.

Q. The Public Defender's Office?

A. Yes.

Q. The Probation Department.

A. Yes.

Q. The bail or O.R. people?

A. Yes.

Q. So by not booking a person in, these other individuals and agencies are unaware of an individual's existence?

A. Generally, yes.

Q. And when you arrested Mr. Dotson, you were aware he was approximately nineteen years old?

A. Yes.

Q. You were aware he was an indigent?

A. How do you mean?

Q. Did you know whether he had retained counsel representing him at that time?

A. He did not.

Q. You were aware he was not in a financial position to hire his own lawyer?

A. I wasn't aware of that, no.

Q. Your sole purpose in following the procedure you did, then, in keeping Mr. Dotson incommunicado was to get a statement from him?

A. To attempt to get as much of the truth of the murder investigation as I could and give him the opportunity to give me a statement in the investigation.

Q. You didn't need that for your case;  is that correct?

A. How do you mean?   I was looking for the truth, as much of the truth as I could get on that murder investigation.   I wasn't giving up or quitting at that point, no.

Q. You didn't need that information for the arrest;  is that correct?

A. I had already served the arrest warrant, sir.

Q. And that warrant was for murder?

A. Yes.

Q. And before you spoke to Mr. Dotson, you were aware of the existence of a normal companion of his, Mr. Thomas, is that correct?

A. Yes.

Q. And you received that information from Mrs. Dotson?

A. Yes.

Q. You did not need to get that information from Mr. Dotson;  is that correct?

A. He would certainly be able to tell me the relationship a lot better than his mother.

Q. You were aware of Mr. Thomas' existence prior to talking to Mr. Dotson?

A. Yes.

Q. Now when did you get confirmation of Mr. Thomas' fingerprints as matching some latent print lifts from the crime scene in the sequence of taking statements, is that before you arrived at the Homicide Division?

MR. PAYNE:  We stipulated that—

MR. CIRAOLO:  I am sorry.

MR. PAYNE:  That's 10:20 and that he received the phone call.

MR. CIRAOLO:  I will withdraw the question.

THE COURT:  Your next question then, Mr. Ciraolo.

MR. CIRAOLO:  Q.   You made a request to compare Mr. Thomas' fingerprints and the latents at the scene before you had any conversation with Mr. Dotson;  is that correct?

A. Yes.

Q. You were aware that as a practical matter, in the City of Oakland, in December of 1978, if Mr. Dotson were booked into the jail, other rights and opportunities would be available to him other than those that would come by arraignment before a Magistrate?

MR. PAYNE:  Object, vague.   Is he talking about whether he knew in the abstract or whether this was in Sergeant Sitterud's mind at the time he made any or all decisions on the morning of December 29th?

MR. CIRAOLO:  The first question, in the abstract.

THE COURT:  You want to restate your question so he has an opportunity to understand it, fairly understand it.

The objection is sustained.

MR. CIRAOLO:  I will rephrase it.

Q. Mr. Sitterud, you knew that in December of 1978 that if Mr. Dotson were booked into the jail, he would have in the normal course of events, phone calls available to him and access to a Public Defender, access to the bail or O.R. people, were you aware of that, sir?

A. Yes.

Q. You also have in the past taken persons who had been booked into the jail from the jail to the Homicide Division to interview him?

A. Yes.

Q. You did not do that in this case, you had him brought directly to the Homicide room?

A. Yes.

Q. And to your knowledge, the only reason he was not booked into the jail and taken to the Homicide Division were on your specific orders and instructions?

A. Yes.

MR. CIRAOLO:  I have nothing further of this witness.

MR. PAYNE:  Just a couple questions.

REDIRECT EXAMINATION BY MR. PAYNE

MR. PAYNE:  Q. What time does court normally start in Oakland Muni?

MR. CIRAOLO:  Objection;  immaterial and irrelevant.

THE COURT:  It is a little broad.   Are you talking about December 29th of 1978 or some other time?

MR. PAYNE:  Q.   December 29th of 1978, in the morning, what time did the courts normally begin?

A. Around 9:00 or 9:30.

Q. And what would have happened if you had at some time arrived around 8:30 or 9:00 or 9:30 on that Friday morning, if you had brought Mr. Dotson to some court to try to arraign him?

MR. CIRAOLO:  Objection;  vague, opinion and conclusion, irrelevant, immaterial.

THE COURT:  I don't think it is vague and irrelevant and immaterial, and it is in fact his opinion, I guess in a technical sense, but it also goes to his state of mind of why he did what he did and the objection is overruled and you may answer.

THE WITNESS:  They would most likely send me to the jail and told me they would arraign him Monday afternoon or Tuesday morning.

MR. PAYNE:  Q. And that is because of the immense amount of paperwork, computer inputting, et cetera, that has to be done in our society in 1978, 1979 with respect to anybody arrested and put into the system?

MR. CIRAOLO:  Objection;  opinion and conclusion, irrelevant and immaterial.

THE COURT:  Sustained.

MR. PAYNE:  Q.   During the three conversations that we have talked of with the defendant on December 29th, 1978, in the morning, did the defendant appear drowsy at any time?

A. No.

Q. Did he appear to be in any way under the influence of alcohol or drugs?

A. No.

Q. Did he appear to have any difficulty understanding what you were saying to him or communicating things to you?

A. No.

MR. PAYNE:  Thank you.   No further questions.

THE COURT:  Mr. Ciraolo.

MR. CIRAOLO:  I have a few more.

RECROSS–EXAMINATION BY MR. CIRAOLO

MR. CIRAOLO:  Q. You are aware in the Oakland Municipal Judicial District, there are Magistrates available 24 hours a day, seven days a week?

A. Yes.

Q. And you are aware that Magistrates leave the courtroom to advise people of their rights and their charges and do so even though normal charges have been filed?

A. I suppose they could.   I have never seen it done though.

Q. Have you participated in any arraignments at a hospital?

A. No.

Q. Have you heard of any arraignments in a hospital?

A. Yes.

Q. And you've heard of Judges being in the Oakland Jail on Sunday evenings, interviewing and O.R.'ing people prior to going to court on Monday?

A. Yes.

Q. So a Magistrate is available almost 24 hours a day to perform any judicial function, as well as arraign a defendant, they could release an individual or advise him of their rights, to your knowledge?

A. Yes.

MR. CIRAOLO:  Nothing further.

MR. PAYNE:  Nothing further.   Thank you, Sergeant.

THE COURT:  Regarding the decision to have this particular person taken directly to the Homicide facilities at the police department, did anyone else participate in that decision other than yourself, for instance, Lieutenant Green, on your behalf?

THE WITNESS:  No.

THE COURT:  That was your decision?

THE WITNESS:  Yes, sir.

THE COURT:  Any additional questions?

MR. PAYNE:  Nothing further.

MR. CIRAOLO:  Nothing further.

THE COURT:  This witness is excused?

MR. PAYNE:  Yes, Your Honor.

MR. CIRAOLO:  For this hearing.

THE COURT:  Thank you, Sergeant, you are excused for the purposes of this hearing.

[Witness excused.]

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).

1.   The full transcript of the sergeant's testimony is set forth in appendix A to this dissent.

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

3.   Since the Rogers court emphasized that the petitioner had made no contention that the admissions “were not freely and voluntarily made” it would have made no sense for the Supreme Court to examine voluntariness nor did it.   Instead, it examined whether the detention had been resorted to by the police for the purpose of inducing the admissions.   Finding the record lacking in any such evidence the court found the exclusionary rule inapplicable “since there is no evidence that the illegal detention produced the admissions, ․”  (46 Cal.2d at p. 11, 291 P.2d 929.)That same approach of separating an attack on the voluntariness of a confession taken during an illegal detention from the question of whether the illegal detention produced the admissions was employed by the Supreme Court again in 1980 in People v. Thompson, supra, 27 Cal.3d at page 330, 165 Cal.Rptr. 289, 611 P.2d 883.   There, appellant contended that his confession “was inadmissible because it was obtained while he was being illegally detained.”  (Id., at p. 328, 165 Cal.Rptr. 289, 611 P.2d 883.)   Unlike the situation in Rogers, the appellant in Thompson made this attack in conjunction with an attack on the voluntariness of the confession.   The Supreme Court considered and decided that the confession was not involuntary and then considering the delay summed up its conclusion with respect thereto:  “Officer West's testimony established that the purpose of the delay was not to obtain statements from appellant.   It is true that appellant refused initially to discuss the case with West but he subsequently changed his mind and initiated further conversations.   The decision to confess was itself free and voluntary.   Under these circumstances, even if section 825 were violated, that would not render his confession inadmissible.”  (People v. Thompson, supra, 27 Cal.3d at pp. 328–330, 165 Cal.Rptr. 289, 611 P.2d 883;  emphasis added.)

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.   Even those who seek to narrow the exclusionary rules admit that they should continue to exist where police are not acting in “reasonable good faith.”  “White House seeks to ease evidence rule”, San Jose Mercury News (Sept. 13, 1982) page 3F, column 1.  “WASHINGTON (UPI)—Attorney General William French Smith, promoting President Reagan's new crime package, said Sunday that police should be allowed to introduce illegally gathered evidence in court if they are acting in ‘reasonable good faith.’   [¶] Smith, interviewed on ABC's ‘This Week with David Brinkley,’ discussed the crime package Reagan plans to send Congress today.  [¶] One element of the package would allow some illegally gathered evidence to be introduced at criminal trials—a rollback of the ‘exclusionary rule.’  [¶] Smith said that when officers act in ‘reasonable good faith’—that is, when they break the Fourth Amendment protections against unreasonable search and seizure without realizing it—the evidence they gather should be allowed in criminal trials instead of being excluded.  [¶] He said that although only a small percentage of cases involve the exclusionary rule, ‘what those figures do not include are those cases where prosecutions and indictments were never brought because of the fact that the evidence with the exclusionary rule was not sufficient to sustain a conviction.’  [¶] ‘The fact is that whether or not it affects a small percentage of cases, it is one of those areas where we have to go to work to come to grips with this crime problem.’  [¶] Smith noted that this is not the first time Reagan has made the proposals.   Many of the president's earlier crime proposals stalled in Congress without ever reaching the floor.  [¶] ‘We have, over a year ago, introduced legislation to the Congress which covers all of the matters that the president referred to in his speech yesterday and before,’ Smith said.  [¶] One element of the president's proposal, which he announced in a national radio address Saturday, would alter the insanity defense that John W. Hinckley Jr. used to escape conviction for shooting Reagan.  [¶] Smith said the administration wants to eliminate insanity as a defense, except that if the intent to commit a crime did not exist because of a mental defect, there would be no crime.”

CHRISTIAN, Associate Justice.* FN* The author of this opinion states his opposition to the action of his colleagues in ordering publication of the opinion.   The opinion does not meet any of the standards specified in rule 976(b), California Rules of Court.   The filing of a dissent is not, under the rules, a circumstance authorizing publication.

CALDECOTT, P.J., concurs.