People v. Alesi

• Decision Date: 12 December 1967
• Docket Number: Cr. 10957
• Parties: , 434 P.2d 360 The PEOPLE, Plaintiff and Respondent, v. Daniel William ALESI, Defendant and Appellant.
• Court: California Supreme Court

Page 104

64 Cal.Rptr. 104

67 Cal.2d 856, 434 P.2d 360

The PEOPLE, Plaintiff and Respondent, v. Daniel William ALESI, Defendant and Appellant.

Cr. 10957.

Supreme Court of California,

In Bank.

Dec. 12, 1967.

Rehearing Denied Jan. 11, 1968.

Daniel William Alesi, in pro. per.

Earl Klein, Beverly Hills, under appointment by Supreme Court, and James R. Montgomery, Ontario, under appointment by Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip C. Griffin, Deputy Atty. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant appeals from a judgment of conviction entered upon a jury verdict finding him guilty of two counts of selling heroin (Health & Saf.Code, § 11501), and one count of possession of marijuana (Health & Saf.Code, § 11530), and also finding to be true an allegation charging a prior felony narcotic conviction (Health & Saf.Code, § 11500). He was sentenced to imprisonment in the state prison with the sentences to run concurrently on all counts.

On June 12, 1962, White, a narcotics undercover agent, gave $40 to Robert Baldry, an informer, and Baldry handed the money to defendant, who was accompanied by Patricia Hardy, originally a codefendant in this action. ¹ While Baldry and Miss Hardy circled the block in the latter's vehicle, defendant Alesi entered a restaurant, and when he rejoined the others he was carrying three balloons in his mouth. They returned to Baldry's apartment, and as they parked Alesi handed two of the balloons to Baldry. After the three re-entered the apartment, where White had remained, Baldry handed White the two balloons which were subsequently proved to contain heroin. Miss Hardy retained the balance of the heroin, and she later gave the last balloon to White.

On June 15, 1962, three days later, a second transaction was consummated by prearrangement. On this occasion White handed Miss Hardy $75, and she departed in her car to obtain the heroin. Shortly thereafter Miss Hardy returned, informed the deputy that she would retain a gram of heroin for her services and then gave the balance of the narcotics to Alesi, who attempted to tie a knot in the balloon in which it was contained. White took the heroin from Alesi.

On the basis of White's investigation and the foregoing events, a warrant was issued for the arrest of defendant Alesi. Three deputies, Meyers, Lesnick, and White, effectuated the arrest in the early morning at the apartment of Janice Kline, another acquaintance of defendant. Mayers made a quick search, which uncovered in Alesi's shirt pocket a 'cocktail,' a tobacco cigarette embellished at the tip with an inserted hand-rolled cigarette found to contain marijuana. The officer immediately asked Alesi if the 'cocktail' was his and he admitted it was, and, in response to a second question, admitted it contained marijuana.

As the deputies and defendant proceeded to the police station following the arrest, Meyers asked him if he knew White, and he indicated that he recognized him but insisted that he was not guilty of the sales. There was no further police interrogation.

Defendant was duly arraigned and pleaded not guilty. During the course of the trial, counsel stipulated to a mistrial, which the court ordered. The People moved to strike the allegation of defendant's prior felony narcotics conviction, and this was granted. He then pleaded guilty and petitioned under Penal Code section 6451 (now Welf. & Inst.Code, § 3051) for commitment as an addict, and this was granted.

In subsequent interviews with John Linker, his probation officer, defendant admitted he was using heroin on a regular basis, that the marijuana cigarette belonged to him; however, he did not admit the heroin sales with which he was charged. These admissions were made both orally and in a written statement submitted by him to the probation officer.

Defendant was sent to the California Rehabilitation Center, but was thereafter returned to court as being an unfit subject for treatment in that institution (Pen.Code, § 6453, now Welf. & Inst.Code, § 3053). He thereupon moved to withdraw his plea of guilty, and this motion was granted. At the same time, the allegation of the prior narcotics conviction was reinstated. At this point, defendant's first counsel, Richard Walton, was permitted to withdraw, and new counsel was appointed by the court. Upon retrial, defendant was found guilty as indicated above.

Defendant contends that three sets of statements introduced in evidence against him contravene Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361. Even though the trial in this case occurred before Escobedo was announced, it is now settled that the defendant may take advantage of Escobedo and Dorado since his case arises on appeal after those decisions. (People v. Rollins (1967) 65 Cal.2d 681, 56 Cal.Rptr. 293, 423 P.2d 221; People v. Lopez (1965) 62 Cal.2d 368, 42 Cal.Rptr. 188, 398 P.2d 380.) In Rollins we reaffirmed Lopez because 'we need not invite the anomalies and the manifest injustice which the rejection of Lopez, at the virtual end of its natural life, would entail.' (People v. Rollins, supra, 65 Cal.2d at p. 691, 56 Cal.Rptr. at p. 301, 423 P.2d at p. 229.) Therefore, we consider on the merits the Escobedo and Dorado contentions advanced by defendant.

After the first trial, defendant pleaded guilty on the advise of his attorney so that prompt commitment to the California Rehabilitation Center could be arranged. At an oral interview following his plea, he told his probation officer that he was using heroin and that the marijuana cigarette discovered by the arresting officers was his. Defendant also submitted a statement in his own handwriting in which he confessed to marijuana possession and also admitted heroin use, although he did not admit the sales charged in the indictment. At the second trial, he denied the marijuana possession, and his written statement was introduced for impeachment purposes. On cross-examination he testified that his admissions to the probation officer were made on the advice of his then attorney.

On this record it is clear that defendant's statements to his probation officer are not embraced within the rule enunciated in People v. Quinn (1964) 61 Cal.2d 551, 39 Cal.Rptr. 393, 393 P.2d 705. In Quinn the probation officer admonished convicted defendants that unless they were telling the truth he would not recommend probation. Since any subsequent admissions or confessions thus were induced by the promise of leniency, we held they were involuntary and therefore inadmissible in a later trial. This defendant's predicament is markedly different. His statements to the probation officer were made upon the advice of counsel. In acting with the benefit of legal advice, he cannot now complain that the information volunteered was elicited in violation of his rights under Escobedo and Dorado. (People v. Brooks (1965) 234 Cal.App.2d 662, 671--672, 44 Cal.Rptr. 661; People v. Garcia (1966) 240 Cal.App.2d 9, 12--13, 49 Cal.Rptr. 146, 15 A.L.R.3d 1352.) Thus, in a later trial the People may introduce admissions made to a probation officer, either directly or for impeachment purposes, where it affirmatively appears in the record that the defendant made those admissions under the guiding hand of counsel, unless the defendant can establish that his attorney, in concert with the court or the People, misrepresented his eligibility for or likelihood of admission to the state narcotics treatment facility. (See In re Nunez (1965) 62 Cal.2d 234, 236, 42 Cal.Rptr. 6, 397 P.2d 998.)

Here, it appears that defendant's first attorney believed he could best discharge his duty to his client, who was then on parole from a prior narcotics conviction, by securing, if possible, his admission to the California Rehabilitation Center. There is nothing in the record to question the soundness of this advice. Thereafter, the attorney and the People, with the help of the court, fulfilled their promises to employ their best efforts to have defendant placed in the center. Indeed, he was sent there. It was at the center that he was found to be an unfit subject for treatment.

It is not unrealistic to anticipate that a defendant rejected by the narcotics rehabilitation center, a possibility which can be foreseen, will be faced at a subsequent trial with statements made to a probation officer under the advice of counsel. An apprehensive counsel, of course, can caution the defendant that anything he says to his probation officer might be used in a subsequent trial. The critical element is that the defendant is represented by counsel, and counsel has the opportunity to fully inform him of the risks he takes by full or false disclosures to his probation officer.

Although under these circumstances we find no reason to hold defendant's statements to his probation officer inadmissible, it is not difficult to contemplate circumstances in which the use of such testimony would be tainted. Thus, unless it clearly appeared from the record that a defendant, like Alesi, was acting under the advise of counsel or that he waived his right to counsel and was advised of his right to remain silent (see People v. Stewart (1965) 62 Cal.2d 571, 43 Cal.Rptr. 201, 400 P.2d 97, affd. sub nom. Miranda v. State of Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), the People could not use the statements, even for impeachment purposes, because, as the court recognized in People v. Garcia (1967) 240 Cal.App.2d 9, 13, 49 Cal.Rptr. 146, 148, 15 A.L.R.3d 1352: 'in order (for the probation officer) to get full cooperation from a defendant he should be advised that any statement he makes will be used only for the information of the court in a probationary hearing. We do not doubt that defendants have that belief and that if they knew their...