62 Cal.2d 571, 7662, People v. Stewart

Docket Nº:7662
Citation:62 Cal.2d 571, 43 Cal.Rptr. 201, 400 P.2d 97
Opinion Judge:[9] Tobriner
Party Name:People v. Stewart
Attorney:[7] Edwin Malmuth, under appointment by the Supreme Court, for Defendant and Appellant. [8] Stanley Mosk and Thomas C. Lynch, Attorneys General, William E. James, Assistant Attorney General, and Gordon Ringer, Deputy Attorney General, for Plaintiff and Respondent.
Case Date:March 25, 1965
Court:Supreme Court of California
 
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Page 571

62 Cal.2d 571

43 Cal.Rptr. 201, 400 P.2d 97

The PEOPLE, Plaintiff and Respondent,

v.

Roy Allen STEWART, Defendant and Appellant.

Cr. 7662.

Supreme Court of California

March 25, 1965.

In Bank

As Modified on Denial of Rehearing April 21, 1965.

Page 572

Edwin Malmuth, Los Angeles, under appointment by Supreme Court, for defendant and appellant.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., William E. James, Asst. Atty. Gen., and Gordon Ringer, Deputy Atty. Gen., for plaintiff and respondent.

TOBRINER, Justice.

The jury found defendant guilty of robbery and murder of the first degree and fixed the penalty at death. The trial court denied his motion for a new trial and

Page 573

for a reduction of the penalty. This appeal is automatic (Pen.Code, § 1239, subd. (b)).

Defendant contends that his confession was improperly admitted at the trial because he was not informed of his right to counsel and of his right to remain silent prior to the time he confessed and because he gave his confession involuntarily. He also contends that during the penalty trial the trial judge gave an instruction condemned in People v. Morse (1964) 60 Cal.2d 631, 36 Cal.Rptr. 201.

Since we conclude that the admission of defendant's confession constituted reversible error in view of our recent holding in People v. Dorado (1965) 62 A.C. 350, 42 Cal.Rptr. 169, we need not reach the issues raised by defendant's other contentions.

During December 1962 and January 1963 a series of robberies accompanied by beatings took place in a neighborhood of Los Angeles. On December 21, 1962, an assailant struck Mrs. Meriwether Wells while she was walking down the street and took from her a handbag containing $5 to $10, a wallet bearing her maiden name, charge-a-plates in the names of Mr. and Mrs. Robert K. Wells, a salary check payable to Mrs. Wells, a salary check payable to Mr. Wells, and three dividend checks. Mrs. Wells, who suffered a fractured jaw, said that the culprit was a 'colored man,' but she was unable to identify him.

On January 10, 1963, someone robbed Mrs. Tsuru Miyauchi of her leather lunch bag, containing a red change purse with her daughter's name on it, pictures, keys, and $8 to $10 in cash. As she was walking down the street, the assilant hit her on the head with a blunt instrument, causing her to suffer a fractured skull and a broken nose. She could not identify the robber.

On January 19, 1963, Miss Lucile O. Mitchell was beaten and robbed of a silver cufflink, a transistor earplug, a black leather case for such an earplus, a watch, and a charge-a-plate. Miss Mitchell, who was found on a house porch, subsequently, without having identified the attacker, died from a head wound.

On January 25, 1963, Mrs. Beatrice Dixon, while walking down a street, was hit on the head and robbed of her large leather bag containing a billfold, $23, a black coin purse, cash, and a door key on a chain bearing her initial, 'B.' Mrs. Dixon could not identify the person who hit and robbed her.

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When, on January 30, 1963, Miss Maria Louisa Ramirez was walking down a street, someone hit her on the side of her head. When she regained consciousness, her purse containing a wallet, a coin purse, and a pair of glasses in a case were gone. The police officer investigating the robbery found the charge-a-plate taken from Miss Mitchell on the ground about 18 inches from the place where Miss Ramirez had been lying. A witness to the crime testified at the trial that defendant looked like the assilant, but she did not make a positive identification.

Mr. Wells, husband of the first of the above victims, reported to the police that the dividend checks stolen from his wife bore the endorsement, 'Robert K. Wells.' He said that he had never endorsed the checks. The police then interviewed a Mr. Sam Newman, who operated the market where the checks had been cashed. Mr. Newman related that because the person who cashed the checks lacked identification, a Mrs. Lena Franklin, who was then in the store and was apparently acquainted with the defendant, cosigned them. On January 31, Mrs. Franklin pointed out to a police officer the defendant as the one who cashed the checks.

The police officer went to defendant's residence and there informed him that he was under arrest for a series of 'purse snatch robberies.' When the officer asked if he could search the house, the defendant replied, 'Go ahead.' During the search, the officer found Mrs. Wells' purse and wallet, Mrs. Miyauchi's coin purse attached to a key that operated the door to defendant's house, Miss Mitchell's watch, Mrs. Dixon's coin purse and initialed key, and Miss Ramirez' wallet. On February 3, during a further search of the house the police found Miss Ramirez' glesses and Miss Mitchell's cufflink, transistor earplug and case.

Likewise on January 31, the police arrested four other people who were in the house at the time of defendant's arrest. The police later determined that besides defendant the only other people who actually lived in the house were a woman referred to as Lillian Lara 1 and her daughter. The police interrogated all five persons.

The police officers testified at the trial that during the interrogations of the defendant on January 31 and on February

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1 he denied any knowledge of the checks, even though confronted by Mrs. Franklin, the cosigner of the checks. A tape of the January 31 interrogation was introduced at the trial for impeachment purposes. According to one of the officers, on February 3 defendant said that if he could see Lillian Lara he might have 'something to say.' After a meeting with her, defendant admitted signing Wells' name to the checks and cashing them, but he claimed that he found the checks; he also denied having seen any of Mrs. Wells' other belongings prior to the date of the interrogation.

On February 4 the police showed defendant the objects found in his residence, but, according to the police officers, he denied having seen them before. One of the officers testified that defendant then said that he had brought the purse, subsequently identified as belonging to Mrs. Wells, to his house when he had moved there two months earlier. He also told the police that other people had brought some of the other stolen objects into the house. A police officer testified that defendant denied having seen Miss Ramirez' wallet; but the defendant said he found Mrs. Miyauchi's coin purse on the street. Another officer testified that when the defendant was shown Miss Mitchell's watch he at first denied having previously seen it, but then said someone brought it to his house. He later said he had bought the watch on the street and had given it to Lillian Lara. 2

On February 5 defendant admitted that he robbed Miss Mitchell. An officer testified that defendant expressed sorrow at having killed Miss Mitchell and said, 'I didn't mean to kill her.' The police then recorded an interrogation during which defendant again admitted robbing Miss Mitchell. He denied hitting Miss Mitchell on the head; he did say, however, that he could have kicked her in the head after she fell and while he was escaping. He continued to insist that he had not participated in the other robberies.

The police brought defendant before a magistrate for the first time shortly after his confession. They then released

Page 576

the other persons arrested in connection with the crimes. An officer testified that an investigation of these people revealed 'no evidence to connect them with any crime.'

The transcriptions of the January 31 interrogation and of the February 5 confession of the robbery and other incriminating statements were admitted into evidence without objection, although during the trial defendant contended that he gave his confession involuntarily. 3 Nothing in the record indicates whether or not defendant was informed prior to his confession of his rights to counsel and to remain silent or whether he otherwise knowingly and intelligently waived those rights. 4

Following the decision of the United States Supreme Court in Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, we held in People v. Dorado (1965) 62 A.C. 350, 365, 42 Cal.Rptr. 169, 179, 378, 'that defendant's confession could not properly be introduced into evidence because (1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements, (4) the authorities had not effectively informed defendant of his right to counsel or of his absolute right to remain silent, and no evidence establishes that he had waived these rights.'

The instant case presents the following principal questions: (1) whether, at the time defendant uttered the confession, the investigation had reached the accusatory or critical stage so that he was entitled to counsel, and hence to be advised of his rights to counsel and to remain silent if he did not otherwise waive those rights; (2) whether the lack of any indication in the record that defendant was advised of his rights to counsel and to remain silent precludes a finding that he was so advised. We set forth our reasons for answering each of these questions in the affirmative.

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The United States Supreme Court in Escobedo fixed the point at which a suspect is entitled to counsel as that at which 'the process shifts from investigatory to accusatory when its focus is on the accused and its purpose is to elicit a confession * * *.' (378 U.S. at p. 492, 84 S.Ct. at p. 1766). The court also characterized the time when a person needs the...

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