People v. Anderson

• Decision Date: 09 August 1965
• Docket Number: Cr. 4665
• Citation: 46 Cal.Rptr. 1,236 Cal.App.2d 419
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. John ANDERSON, Defendant and Appellant.

Page 1

46 Cal.Rptr. 1

236 Cal.App.2d 419

PEOPLE of the State of California, Plaintiff and Respondent, v. John ANDERSON, Defendant and Appellant.

Cr. 4665.

District Court of Appeal, First District, Division 1, California.

Aug. 9, 1965.

Elisbeth Lagomarsino, Berkeley, for appellant (Under appointment of District Court of Appeal).

Thomas C. Lynch, Atty. Gen. of State of California, Edward P. O'Brien, Jay S. Linderman, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Justice.

Defendant appeals from the judgment of conviction upon a jury verdict finding him guilty of robbery in the first degree (violation of Pen.Code, § 211) and of possession of a firearm by a convicted felon (violation of Pen.Code, § 12021). The assignments of error upon which this appeal is based are (1) that the admission at the trial of certain incriminating statements which defendant made to the police constituted error under People v. Dorado, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361 and (2) that the deputy district attorney was guilty of misconduct as a result of certain statements which he made during his closing argument to the jury.

The Record

At approximately 11:15 on the evening of November 23, 1963, defendant entered the Clown Liquor Store located at the corner of 43rd and Market Streets in Oakland and requested a bottle of Scotch liquor and a package of Salem cigarettes from the clerk, Mrs. Elsie Jenkins. Mrs. Jenkins gave defendant the items which he had requested, whereupon defendant pulled back his coat, revealed a gun, and said, "This is a stick up. * * * Put the money in the bag." Mrs. Jenkins activated a silent burglar alarm and then complied with defendant's demand, turning over approximately $73 from the cash register, including four $1 bills, the serial numbers of which had been recorded on a separate slip of paper which she retained. Defendant then left the store with two paper bags in his hand and began walking up 43rd Street.

Mrs. Jenkins immediately notified Mr. James Floyd, a tamale vendor who operated a stand in front of the liquor store and who had been sitting inside the store at the time of the robbery. Floyd picked up a gun which he kept nearby, pursued defendant, caught up to him and brought him back to the liquor store, defendant still carrying the two paper bags. As Floyd and defendant arrived back at the store, Officer Owsley of the Oakland Police Department arrived. Meanwhile defendant started to grapple with Floyd, trying to hammer the gun loose from Floyd's hand, and in order to terminate the fight, Owsley struck defendant over the head with his gun. Defendant fell to the ground, and Owsley handcuffed him and removed a gun from his jacket pocket.

Shortly thereafter Officer Donohue of the Oakland Police Department arrived and summoned an ambulance to take defendant to the hospital for treatment of his head wounds. The ambulance arrived and defendant was taken to Highland Hospital, where he remained for about 35 minutes. Subsequent to the hospital treatment and while defendant was sitting in the police car with Donohue at the hospital parking lot, Donohue talked with defendant about the incident at the liquor store, defendant being the first to state that he had been accused of robbing the store. Defendant then made the following statement to Donohue, which the latter took down in writing while defendant spoke: 'I went in the liquor store to buy some liquor or some cigarettes. I walked up to the counter and bought a half pint of Scotch and a package of Salems. I walked out of the store and the old man put a gun in my side before I got out of the store. I don't remember robbing anything. They say I had a gun, but it belonged to the old man. I don't think I took it away from him. I don't remember very much. Then this officer hit me alongside the head and handcuffed me. They say I tried to rob the place. I don't think I grabbed any money. I don't remember too much. I give this statement voluntarily and of my own free will." Upon defendant's completion of this statement, Donohue, believing that defendant had finished his statement, asked defendant to sign the statement. Defendant refused to sign and remained mute. However, defendant suddenly started talking again, Donohue taking down defendant's words as follows: "I got a daughter twelve years old that's going to have a baby and I went in the store to get $700 that she needs. She is in New Orleans." Defendant also refused to sign this statement.

The third statement which was elicited from defendant and introduced into evidence at the trial consisted of a statement which defendant made to Officer Madsen in the Interrogation Room of the City Prison in Oakland at 11:10 a. m. on November 26, 1963. The written version of this statement, which was made by Madsen as defendant spoke and which he refused to sign, was read to the jury as follows: "I tried, I tried to get some money. The gun I had got Friday night. I got it from a fellow I don't even know his last name on 7th Street. I paid him $15 for it. We was gambling and I gave him $5 and he was supposed to get it back from me when he got the money. It was four or five o'clock Saturday morning. It could have been five or seven, even six, that I got the gun. Saturday night I was walking around all over. I was on my way to the house. I really didn't have no intention of robbing anybody. I had the gun in my pocket, but I never did pull it out. I tried to get some money for the gun. She might have gotten frightened. When I got out of the store the old man pulled the pistol on me and said I robbed somebody, and I went back into the store and the next thing I knew the police was beating me over the head. When they handcuffed me and everything, they said something, some money on the sidewalk, the money the lady gave it to me. They said I pulled a pistol on her, but I didn't. I ain't never pulled a pistol on anybody. I had about two dollars and something on me when I was picked up."

Applicability of the Dorado Rule

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, the California Supreme Court in People v. Dorado, supra, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361, held that a defendant's confession which was elicited under the following circumstances cannot be properly introduced in evidence: '(1) [T]he 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.' (Pp. 365-366, 42 Cal.Rptr. p. 179, 398 P.2d p. 371.)

As to the first two requirements of the Dorado rule, namely, that the defendant be in custody and that the investigation have begun to focus on the defendant, the recent case of People v. Stewart, 62 A.C. 597, 43 Cal.Rptr. 201, 400 P.2d 97, held in part that these two aspects of the accusatory stage defined by Escobedo and Dorado are fulfilled by the arrest of the defendant. Accordingly, since defendant made all of his statements to the police after he had been placed under arrest, we conclude that these two elements of the Dorado rule have been met in the instant case. Furthermore, as to the fourth element of the rule, namely, that a defendant be advised of his right to counsel or to remain silent, insofar as the statement which defendant made at police headquarters is concerned, Madsen explicitly testified that he did not advise defendant of these rights. And as to defendant's earlier statements to Donohue, while the record does not indicate that defendant was so informed of his rights, in light of the holding in Stewart that we cannot presume, in the face of a silent record, that the police informed the defendant of his right to counsel or his right to remain silent, we are forced to conclude that this requirement of the Dorado rule has also been fulfilled in the case at bench.

Our only remaining consideration, therefore, is whether any or all of defendant's statements to the police were made pursuant to 'a process of interrogations that lent itself to eliciting incriminating statements.' As to this requirement, Stewart holds that the proper test in ascertaining whether a defendant's statements were obtained during the requisite process of interrogations is an objective one requiring that we 'analyze the total situation which envelops the questioning by considering such factors as the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police and all other relevant circumstances.' (P. 605, 43 Cal.Rptr. p. 206, 400 P.2d p. 102.) Where the record is totally devoid of such objective evidence or is so scanty with respect to the 'factors' required by the Stewart test as to preclude an analyzation of the 'total situation,' we must assume that the interrogation is one that lent itself to eliciting incriminating statements. (People v. North, 233 Cal.App.2d 884, 44 Cal.Rptr. 123; People v. Green, 236 Cal.App.2d 1, 45 Cal.Rptr. 744; and see People v. Stewart, supra, 62 A.C. p. 604, 43 Cal.Rptr. 201, 400 P.2d 97, wherein it is stated that in 'most cases' an interrogation by the police lends itself to eliciting incriminating statements.)

Turning to the instant case, and beginning with a consideration of the first statement which defendant made while in the police car with Donohue, we find that the record before us is almost barren as to the manner by which this statement was elicited. The only evidence in the record relating to the details surrounding the rendering of this statement is contained in the voir dire of Donohue wherein he merely...