People v. Cox

• Decision Date: 27 June 1990
• Docket Number: No. D008113,D008113
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Dale William COX, Defendant and Appellant.

Page 730

270 Cal.Rptr. 730

221 Cal.App.3d 980

The PEOPLE, Plaintiff and Respondent, v. Dale William COX, Defendant and Appellant.

No. D008113.

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

June 27, 1990.

[221 Cal.App.3d 983] Andrew S. Richter, 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., Pat Zaharopoulos, Supervising Deputy Atty. Gen., and Jay M. Bloom, Deputy Atty. Gen., for plaintiff and respondent.

FROEHLICH, Associate Justice.

A jury found Dale William Cox guilty of attempted burglary: an attempt to enter an inhabited dwelling for the purpose of committing rape (violation of PEN.CODE, §§ 664¹ and 459). In nonjury hearings the court found Cox to have been sane at the time of the crime, denying his plea of

insanity; and also found the allegation of a prior conviction (assault with intent to commit rape) to be true. Cox was sentenced to prison for the midterm of two years with an additional five years for the prior conviction, a total term of seven years. Cox appeals, alleging (1) error in receiving in evidence admissions not voluntarily given; (2) error in failing to give, sua sponte, an instruction on voluntary intoxication; and (3) insufficient evidence to support the conviction of burglary. We find no error and affirm.

FACTS

The attempted entry into the residence occurred at the patio entrance to the condominium of Mr. & Mrs. Paul Brackman in Carlsbad, at around 2:30 a.m. Cox's attempt to open the sliding glass door activated a burglar alarm, awakening the Brackmans. When Mr. Brackman investigated he found Cox, naked, sitting in a chair outside the condo. While Mrs. Brackman called the police, Mr. Brackman engaged Cox in conversation. When asked what he was doing, Cox said he was chasing, or was being chased by, the devil. They discussed the weather, the location of Cox's residence and the fact that he had been walking his dog on the beach. At one point Cox took off his ring and some jewelry and placed them on a table next to him.

The police arrived within a few minutes. Officer Sutt observed Cox and conversed with him, after first giving him the Miranda admonishment. Although Cox told Sutt he had taken methamphetamine, Sutt concluded Cox was not under the influence of drugs because of his appearance and calm demeanor. Noting Cox's nakedness and wet footprints near the adjacent condominium pool, Sutt inquired of Cox as to his activities. Cox told him he had jumped the condo fence, taken off his clothes, dipped in the pool to wash, and then had gone upstairs to attempt entry into the Brackmans' apartment. The officer asked Cox if he planned to have sex with the woman inside, and Cox replied "Yes, probably." The officer then said he thought Cox was planning to go inside and rape the woman, and Cox replied "Yeah, I had a hard on."

Cox testified that he had injected methamphetamine the evening before the incident; that he was walking on the beach near the condominium complex when he became frightened by a red light over the ocean; that he experienced religious premonitions and climbed the wall into the condo pool area because he was being pursued by devils and thought he saw God in one of the complex's windows. He said he immersed himself in the pool to baptize himself and cleanse his body. He tried to enter the Brackmans' apartment because he thought God was inside, and when the alarm went off he felt safe because "they" then knew he was there. He had no reason to flee because he had come to save himself rather than for any improper purpose.

DISCUSSION

1. Admission of Defendant's Statements

Cox contends the evidence establishes that at the time of the police interrogation he was under the influence of methamphetamine and as a result was incapable of exercising rational free will. His incriminating admissions were thus involuntary and should not have been received in evidence. The determination to admit this evidence was made after an Evidence Code section 402 hearing outside the presence of the jury. The court heard evidence from Officer Sutt to the effect that Cox did not appear to be under the influence of drugs, and also that Sutt in no way coerced Cox to speak. Cox testified relative to his ingestion of methamphetamine and his delusional and hallucinatory state at the time, and also introduced testimony of a psychiatrist who described Cox's psychotic state. The court advised that it was adopting a standard of proof of voluntariness requiring proof beyond a reasonable doubt, and declared "There is no doubt in my mind there was a free and voluntary confession." ²

The role of the appellate court in reviewing a trial court's determination of the voluntariness of an admission is " ' "to examine the uncontradicted facts to determine independently whether the trial court's conclusion of voluntariness was properly found...." ' " (People v. McClary (1977) 20 Cal.3d 218, 227, 142 Cal.Rptr. 163, 571 P.2d 620.) Where there is conflicting evidence, however, the appellate court must accept the version of events which is most favorable to the prosecution. (People v. Belmontes (1988) 45 Cal.3d 744, 773, 248 Cal.Rptr. 126, 755 P.2d 310.) A trial court's resolution of such conflicts will be upheld unless it is " 'palpably erroneous.' " (People v. Kane (1984) 150 Cal.App.3d 523, 530, 198 Cal.Rptr. 73, cited in People v. Hendricks (1987) 43 Cal.3d 584, 589, 238 Cal.Rptr. 66, 737 P.2d 1350.)

Our review of the evidence introduced at the 402 hearing convinces us of the correctness of the court's ruling. There was no evidence of coercion on the part of Officer Sutt. His questioning was short and simple,addressed in the relaxed atmosphere of the condominium pool patio. Cox had not been arrested, or even detained. The fact that the questions were somewhat leading does not equate to a conclusion that they were coercive.

The thrust of Cox's argument, however, is not that the police were coercive, but that his mental condition was such as to preclude a knowledgeable and voluntary decision to make incriminating statements. Exclusion of evidence on this ground was conclusively rejected by the United States Supreme Court in Colorado v. Connelly (1986) 479 U.S. 157, 164-167, 107 S.Ct. 515, 520-522, 93 L.Ed.2d 473. The defendant in that case claimed his incriminating statements were not voluntary because of his psychotic state. The court emphasized the element of police coercion as the transgression on constitutional rights. The purpose of the exclusionary rule is to deter violations of the Constitution. Where no constitutional violation has occurred, state rules of evidence are appropriate to govern the admissibility of evidence and to guard against false or unreliable evidence. ³

Earlier authority in California indicated that a confession or admission would be deemed involuntary and inadmissible because of the defective mental condition of the defendant, regardless of the existence of police coercion. (See People v. MacPherson (1970) 2 Cal.3d 109, 115, 84 Cal.Rptr. 129, 465 P.2d 17; People v. Sultana (1988) 204 Cal.App.3d 511, 522 fn. 5, 251 Cal.Rptr. 115.) We believe this authority, which created a standard of constitutional admissibility higher than the federal standard, is no longer viable. In People v. Markham (1989) 49 Cal.3d 63, 260 Cal.Rptr. 273, 775 P.2d 1042, the California Supreme Court construed the effect of the 1982 amendment to the California Constitution (article I, section 28, subdivision (d) called the "truth in evidence law") upon the burden of proof of voluntariness of confessions. Rejecting earlier precedent, the court concluded that the constitutional amendment required conformity to federal standards of admissibility.

While the Markham decision dealt with the question of burden of proof of voluntariness, we believe its implication to the resolution of the issue now before us is clear. The court referenced and followed Colorado v. Connelly in terms of its ruling on burden of proof. (People v. Markham, supra, 49 Cal.3d at p. 67, fn. 3, 260 Cal.Rptr. 273, 775 P.2d 1042.) It also restated the rule previously announced in In re Lance W. (1985) 37 Cal.3d 873 at pages 888-889, 210 Cal.Rptr. 631, 694 P.2d 744, which held that Proposition 8 prohibited state courts from creating nonstatutory exclusionary rules except insofar as required by the Fourth Amendment, as construed by federal authority. (People v. Markham, supra, 49 Cal.3d at p. 68, 260 Cal.Rptr. 273, 775 P.2d 1042.) We believe the present status of the matter is that we are obliged to follow federal precedent in determining admissibility of confessions or admissions dependent upon the factor of voluntariness. We therefore follow Colorado v. Connelly and affirm the trial court's ruling of admissibility. (See also People v. Hatt (Cal.App.1988) 252 Cal.Rptr. 896.) ⁴

2. Failure to Instruct on Voluntary Intoxication

The court instructed the jury on the effect of mental disease, mental defect or mental disorder (reading CALJIC No. 3.36 (4th ed. 1987 pocket pt.) p. 44), advising that it could impact the jury's determination of the existence of the mental state which is an element of the crime of burglary with intent to commit rape. The court was not asked to give, and it did not give, the instruction on voluntary intoxication (CALJIC No. 4.21 (4th ed. 1987 pocket pt.) pp. 60-61). Cox now contends the court had a sua sponte obligation to give this instruction and that failure to do so constitutes reversible error. Cox's theory is that the evidence strongly indicated his use of methamphetamine, not only upon the basis of his testimony but also because of his bizarre conduct, and that the resulting presumed intoxication should have triggered the instruction. ⁵

We reject this contention. ⁶ It is the duty of the court to instruct the jury, even without a request from counsel, on the law applicable to the elements of the case and...