People v. Dorado

• Citation: 62 Cal.2d 338,398 P.2d 361,42 Cal.Rptr. 169
• Decision Date: 29 January 1965
• Docket Number: Cr. 7468
• Parties: , 398 P.2d 361 The PEOPLE, Plaintiff and Respondent, v. Robert B. DORADO, Defendant and Appellant.
• Court: California Supreme Court

Page 169

42 Cal.Rptr. 169

62 Cal.2d 338, 398 P.2d 361

The PEOPLE, Plaintiff and Respondent, v. Robert B. DORADO, Defendant and Appellant.

Cr. 7468.

Supreme Court of California, In Bank.

Jan. 29, 1965.

Edward L. Cragen, San Francisco, under appointment by the Supreme Court, for defendant and appellant.

Robert H. Lund, E. Fred Lightner, William T. Pillsbury, David H. Battin, Long Beach, Jim F. Kingham, London, England, Frederick D. Smith, Doris Brin Walker, Malcolm Burnstein, Aubrey Grossman, James Herndon, Harry Margolis, Donald L. A. Kerson, George T. Davis, San Francisco, Earl Klein, Beverly Hills, Erling J. Hovden, Public Defender, Los Angeles, John M. Moore and James L. McCormick, Deputy Public Defenders, amici curiae on behalf of defendant and appellant.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., Arlo E. Smith, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Albert W. Harris, Jr., Robert R. Granucci, Michael R. Marron, Charles W. Rumph and Paul N. Wenger, Deputy Attys. Gen., and Bruce B. Bales, Dist. Atty., Marin County, for plaintiff and respondent.

Joseph A. Ball, Long Beach, amicus curiae on behalf of plaintiff and respondent.

Edward L. Barrett, Jr., Davis, amicus curiae upon the request of Chief Justice TRAYNOR.

TOBRINER, Justice.

Defendant appeals from a judgment on a verdict finding him guilty of violation of Penal Code, section 4500, which provides for the automatic penalty of death. The indictment charged defendant, a 26-year-old prisoner serving a life term for sale of marijuana, with malicious assault with a deadly weapon which resulted in a fellow prisoner's death. The court denied defendant's motion for a new trial. Penal Code, section 1239, subdivision (b), provides for an automatic appeal.

The main issue of this case involves the admission into evidence of defendant's confessions. For the reasons which we set out hereinafter we have concluded that in the light of recent decisions of the United States Supreme Court the confessions, as obtained in this case, should have been excluded; their admission requires reversal. For guidance of the court upon retrial we set forth why we have rejected defendant's contentions that the evidence failed to show that he was validly imprisoned under a life sentence and that the court failed properly to instruct the jury. We do not discuss defendant's remaining arguments because the factual situations upon which they rest will in all likelihood not recur.

The Confessions

The facts of this case show the background and occasion for defendant's confessions. According to prison officers, they discovered, at about 8:00 a. m. on December 12, 1961, the body of one Nevarez in the lower yard behind the bleachers and near the industrial quonset huts at San Quentin Prison. About 20 minutes later medical personnel pronounced the victim dead upon arrival at the prison hospital. The nature of the chest wounds of the victim showed that they could have been inflicted by a small knife and that the victim probably had been physically restrained during the killing.

Correctional officers undertook an immediate investigation and discovered, in a trashcan in a nearby restroom, a bloodstained blue denim jacket with the prison identification number cut out, the name 'Dorado' ¹ on the pocket, and a button missing. In the same trashcan they found a melton jacket with the number removed and a sharpened knife with a taped handle. They found the button belonging to the blue denim jacket at the scene of the homicide. The officers discovered in another trashcan a second sharpened knife with a taped handle stained with blood.

When the officers located defendant in his cell around 9:00 a. m. he was attired in his underwear. Upon their request that he dress, he donned clean clothing. The officers found no worn clothing in his cell but did discover a roll of tape similar to that used to tape the knife handles. Under a stack of soiled clothing in a clothes hamper the officers found defendant's bloodstained trousers.

Captain Hocker, an official of San Quentin Prison, testified that the officers brought defendant to his office between 9:00 a. m. and 10:00 a. m. In order to examine defendant for superficial cuts and scratches, Captain Hocker requested that defendant strip to the waist. Immediately thereafter defendant dressed again. When defendant was shown the jacket on which his name appeared he made no comment, but upon being told that Nevarez was dead defendant wept. Captain Hocker then requested Officer Glazier to take defendant to the hospital laboratory in order that a technician might remove and test some brown flecks on defendant's hands which appeared to be dried blood. After defendant's return about an hour later, Mr. Midyett from the district attorney's office arrived.

Mr. Midyett and Captain Hocker testified that early in the afternoon, in the course of an interrogation lasting about two hours, defendant admitted the killing. Both testified, further, that on the next morning, December 13, at his cell in the adjustment center, defendant, in the presence of Mr. Midyett, gave a written statement. Thereafter, defendant escorted Mr. Midyett and a prison officer over the route he had taken in the course of the killing, discussing with them certain details of the crime. On December 15, and after codefendant Jiminez had been apprehended on suspicion of complicity, a third interrogation took place. On this occasion defendant implicated Jiminez as the accomplice who held Nevarez.

At the trial Captain Hocker testified that he not only initially interrogated the defendant but had been present during the major part of defendant's interrogation by members of the District Attorney's office. On cross-examination, Captain Hocker was asked, 'Did you see or hear anybody mention to Mr. Dorado his right to counsel?' and 'Or his right not to incriminate himself or testify against himself?' To both questions, he answered in the negative. Mr. Midyett testified to the same effect.

Defendant's testimony on voir dire conflicted sharply with the testimony of the officers. Defendant claimed that he had not freely and voluntarily confessed, but had fabricated the confession partly because he feared threats made by Captain Hocker at an initial interrogation on the morning of December 12. This was the only occasion upon which he and Captain Hocker engaged in conversation alone and without benefit of a tape recorder. Defendant further claimed that upon hearing of the death of Nevarez, who was his friend, he became griefstricken and susceptible to influence, and that moreover he was under the narcotic effects of glue.

Defendant also testified that Captain Hocker forced him to strip and stand completely naked in his office for some 20 minutes or more. He stated that Captain Hocker swore at him and threatened to brand him an informer and turn him loose in the prison yard to be subjected to the retribution of the other prisoners if he did not cooperate. Finally, defendant claimed that Captain Hocker indicated that he would see that defendant did not get the death penalty if he confessed, thus implying that defendant would not be prosecuted under Penal Code, section 4500. Defendant further testified that the influence of these coercive pressures continued in his mind so that he subsequently fabricated the confessions to avoid placing his life in jeopardy at the hands of other prisoners because they might be told that he informed on the real culprit. Captain Hocker denied these facts in every detail and stated that he treated defendant respectfully in view of his obvious remorse.

Defendant argues that Captain Hocker's language and inducements in extracting a confession from Jiminez indicate the truth of his own assertion of coercion. The trial court did in fact rule that the Jiminez confession was the result of coercion. The treatment accorded Dorado, however, differed from that given Jiminez. This difference, Captain Hocker explained, occurred because Dorado's attitude was quiet and subdued, so that no one could be angry with him, and because he confessed readily under interrogation, whereas Jiminez proved obdurate. ² Furthermore, Captain Hocker noted that the coerced Jiminez confession came several days after defendant's and was preceded by sustained and frequently abusive questioning coupled with solitary confinement.

Although we accept the finding of the trial court that the confessions of defendant were not obtained by coercion, we have concluded that they should not have been admitted into evidence under recent rulings of the United States Supreme Court. In a long series of cases that court has been troubled by confessions obtained without protection of counsel; ³ this historic concern of the court culminated in two recent decisions: Massiah v. United States (1964) 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, and Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. Since we must faithfully discharge our duty to apply to the instant case the Constitution of the United States as interpreted by the Supreme Court of the United States, we must follow these recent decisions.

Massiah holds that the prosecution cannot introduce into evidence defendant's 'own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.' (377 U.S. at 206, 84 S.Ct. at 1203.) Defendant, who had been indicted for violation of the federal narcotics laws, had retained counsel. After defendant's release on bail, a federal agent arranged with one Colson, who had been jointly indicted with defendant, for the installation in Colson's car of a radio transmitter. This device enabled the agent, through a receiving set in a car parked down the street, to listen to Colson's conversation with defendant. The statements of defendant thus elicited were presented to the jury through the agent's testimony....