People v. Asay

• Decision Date: 05 October 1990
• Docket Number: No. E006476,E006476
• Citation: 273 Cal.Rptr. 737,224 Cal.App.3d 608
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Christopher Edwin ASAY, Defendant and Appellant.

Page 737

273 Cal.Rptr. 737

224 Cal.App.3d 608

PEOPLE of the State of California, Plaintiff and Respondent, v. Christopher Edwin ASAY, Defendant and Appellant.

No. E006476.

Court of Appeal, Fourth District, Division 2, California.

Oct. 5, 1990.

Certified for Partial Publication ^*

Rehearing Denied Oct. 24, 1990.

Review Denied Jan. 4, 1991.

[224 Cal.App.3d 609] David W. Call and Edward P. Foley, San Bernardino, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Holly D. Wilkens, Supervising Deputy Atty. Gen., and Gil P. Gonzalez, Deputy Atty. Gen., for plaintiff and respondent.

[224 Cal.App.3d 610]

OPINION

HOLLENHORST, Acting Presiding Justice.

Defendant was found guilty of first degree murder (Pen.Code, § 187, subd. (a)) and second degree robbery (Pen.Code, § 211). The jury also found that he used a firearm and that the murder was committed in the course of a robbery. He appeals, urging (1) a taped confession should not have been played to the jury; (2) the trial court erred in allowing evidence when the prosecution rejected defendant's proffered stipulations; and (3) the prosecutor was guilty of prejudicial misconduct. In the unpublished portion of this opinion we find that (1) defendant's confession occurred after a sufficient invocation of his right to counsel; (2) the trial court did not allow the improper admission of irrelevant evidence; and (3) the defendant failed to preserve objections to the prosecutor's conduct.

I FACTS

Defendant was the manager of a Sunshine Travel Stop store on Interstate 15 near Baker, California. An armored car service regularly picked up money from his store, from another Sunshine Travel Stop store about 50 miles away, and from another store in the area.

The victim, Gerald Gauthier, was employed by the armored car service. On February 8, 1987, he made his usual run to make a money pickup at the three businesses. No armored cars were available that day so Mr. Gauthier drove his own small station wagon. As he left the second store he was confronted by defendant on a freeway on-ramp. Mr. Gauthier apparently stopped because he knew defendant. Defendant told him that he had forgotten to order change that morning. As Mr. Gauthier wrote out a receipt, defendant killed him by shooting him at least five times. Defendant then stole $16,000.

Defendant's supervisor, John Nall, testified that he was a good friend of defendant. On December 12, 1987, defendant's wife called Mr. Nall and said she wanted to turn in her husband for the murder of Mr. Gauthier. Mr. Nall, who was living in Yuma, called the Yuma sheriff's office. Defendant was arrested in Arizona on December 12, 1987, and was interviewed by San Bernardino sheriff's deputies. He confessed to the killing during the interview.

Mr. Nall also testified that defendant called him from jail and confessed the crime to him.

[224 Cal.App.3d 611]

II

THE ADMISSIBILITY OF THE CONFESSION TO LAW ENFORCEMENT OFFICERS ^**

III WAS THE ERROR REVERSIBLE PER SE?

California has long followed the rule that the introduction in evidence of a confession obtained from a defendant in violation of Miranda rules is automatically prejudicial and therefore reversible per se. (See, e.g. People v. Randall (1970) 1 Cal.3d 948, 958, 83 Cal.Rptr. 658, 464 P.2d 114.).

Admissions, on the other hand, are "deemed prejudicial unless the People show beyond a reasonable doubt that the error complained of did not contribute to the verdict...." (People v. McClary (1977) 20 Cal.3d 218, 230, 142 Cal.Rptr. 163, 571 P.2d 620.)

The issue presented here is whether the reversible per se rule remains a viable rule as to illegally admitted confessions in the light of the recent case of Rose v. Clark (1986) 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460. Defendant contends that the reversible per se rule applies to the erroneous admission of any confession. The People contend that the harmless error test of Chapman v. State of California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 applies, as interpreted in Rose v. Clark.

Two recent decisions have discussed this precise issue. In People v. Morris (1987) 192 Cal.App.3d 380, 237 Cal.Rptr. 402, the court avoided the issue by finding that the statements in question were admissions, not a confession. The court pointed out in footnote five that the reversible per se rule regarding an improperly induced confession "may need to be reiterated if it is to remain viable" in the light of Rose v. Clark. The footnote continues: "Since the basis for per se reversal upon the erroneous admission of a coerced confession is the inherent violation of due process, the apparent California rule that improper admission of any confession, even one whose impropriety is based on a Miranda violation, requires per se reversal may have to be reexamined." (Id., 192 Cal.App.3d at p. 392, 237 Cal.Rptr. 402.)

In a recently published opinion, discussed below, our brethren in the First District considered this issue and found that they had "no choice but [224 Cal.App.3d 612] to automatically reverse defendant's conviction." (People v. Porter (1990) 221 Cal.App.3d 1213, 1223, 270 Cal.Rptr. 773.) Our Supreme Court denied a request for review, and did not order the opinion depublished.

The resolution of this issue depends, in large part, upon whether the California reversible per se rule is a separate and more stringent test than the federal harmless error rule enunciated in Chapman v. State of California, supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Before reaching this question, we consider the development of the reversible per se standard.

At the time of the Miranda decision in 1965, the rule was well established in California that the erroneous admission of a confession was prejudicial per se and that reversal was therefore required. (People v. Dorado (1965) 62 Cal.2d 338, 356, 42 Cal.Rptr. 169, 398 P.2d 361; People v. Schader (1965) 62 Cal.2d 716, 728-731, 44 Cal.Rptr. 193, 401 P.2d 665.) In Schader, our Supreme Court collected the earlier cases, including five U.S. Supreme Court cases that hold that the introduction of an involuntary confession automatically requires reversal. The court said: "The rationale for this rule rests upon the fact that if 'a coerced confession constitutes a part of the evidence before the jury and a general verdict is returned, no one can say what credit and weight the jury gave to the confession. And in these circumstances this Court has uniformly held that even though there may have been sufficient evidence, apart from the coerced confession, to support the judgment of conviction, the admission in evidence, over objection, of the coerced confession vitiates the judgment because it violates the Due Process Clause of the Fourteenth Amendment.' " (Id., at p. 729, 44 Cal.Rptr. 193, 401 P.2d 665, quoting Payne v. State of Arkansas (1958) 356 U.S. 560, 568, 78 S.Ct. 844, 850, 2 L.Ed.2d 975.) The court concluded that the reason for the exclusion of the confession was unimportant because: "[a]fter holding that the confession should not have been admitted, we can only be concerned with the effect of the confession upon the jury's deliberation, regardless of the type of error involved. It is because of the effect of the confession that the reversal is compelled." (Id., 62 Cal.2d at p. 730, 44 Cal.Rptr. 193, 401 P.2d 665.) The Schader court specifically rejected the argument that a voluntary confession should be treated differently from an involuntary confession because the devastating effect on the jury is the same in either case. (Id., at pp. 730-731, 44 Cal.Rptr. 193, 401 P.2d 665.)

The Schader court cited Jackson v. Denno (1964) 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, as its primary authority for the automatic reversal rule. In Jackson, the court invalidated New York rules that allowed the jury to decide whether a confession was voluntary or coerced. The jury was instructed to disregard the confession if it found the confession involuntary or coerced. After overruling an earlier case that approved this procedure, the court remanded the case for a state court [224 Cal.App.3d 613] hearing on the issue of whether the confession was voluntary. However, the court rejected the argument that Jackson was entitled to a new trial, pointing out that, if the confession was found voluntary, "there is no constitutional prejudice to Jackson from the New York procedure if the confession is now properly found to be voluntary and therefore admissible." (Id., at p. 394, 84 S.Ct. at p. 1790.)

In Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 and Miranda v. State of Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, the court held that confessions obtained during custodial interrogations were inadmissible unless the police observed the procedural safeguards set out in the Miranda opinion. The court found custodial interrogation inherently coercive: "Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice." ³ (Id., at p. 458, 86 S.Ct. at p. 1619.)

Many other California cases following Miranda applied the reversible per se rule to confessions obtained in violation of Miranda. (See, e.g. People v. Fioritto (1968) 68 Cal.2d 714, 720, 68 Cal.Rptr. 817, 441 P.2d 625; People v. Powell (1967) 67 Cal.2d 32, 51-52, 59 Cal.Rptr. 817, 429 P.2d 137, and People v. Rollins (1967) 65 Cal.2d 681, 56 Cal.Rptr. 293, 423 P.2d 221.)

In 1967, the United States Supreme Court decided Chapman v. State of California, supra, 386 U.S. 18, 87 S.Ct. 824. In Chapman, the court considered whether federal constitutional error can ever be harmless, and whether the error in that case was harmless. In answering the first question, the court said: "Whether a conviction for crime should stand when a State has...