People v. Doherty

Decision Date10 July 1967
Docket NumberCr. 10097
Citation59 Cal.Rptr. 857,67 Cal.2d 9
CourtCalifornia Supreme Court
Parties, 429 P.2d 177 The PEOPLE, Plaintiff and Respondent, v. Robert Guy DOHERTY, Defendant and Appellant. In Bank

Robert Guy Doherty, in pro. per., and Michael E. Schwartz, Los Angeles, under appointment by Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., S. Clark Moore and David N. Rakov, Deputy Attys. Gen., for plaintiff and respondent.

TOBRINER, Associate Justice.

The prosecution charged defendant with violations of Health and Safety Code sections 11500 (possession of heroin) and 11530 (possession of marijuana). The jury failed to reach a verdict on the first count but found defendant guilty of possessing marijuana. Ordering the dismissal of the first count, the court entered a judgment of conviction on the second count. Defendant appeals from this judgment.

We reverse this conviction because the trial court erroneously admitted certain of defendant's extra-judicial statements, which he gave without advice of his right to counsel and his right to remain silent. (Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361.) Upon retrial, if the prosecution should again seek to use these or any other statements, the trial court must determine their admissibility in light of the rules set forth in Miranda v. State of Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. For further guidance of the court upon retrial we take this occasion to reject defendant's additional argument that evidence, introduced against him constituted the product of an illegal search.

According to the testimony at trial, two Los Angeles County deputy sheriffs, responding to a call from the attendant, went to a service station at 3 a.m., the morning of August 24, 1964. The attendant had called law enforcement officers because three men refused to leave the premises. The deputies saw two men, including defendant, standing near the open hood of a car parked in the service station lot. A third man was lying underneath the car, apparently repairing it.

One deputy asked defendant and his companions for identification. At that time the other deputy, Deputy Dunlop, saw defendant take a small white package out of his pocket and put it down in the engine. The deputies ordered the men to stand away from the vehicle. They then searched the engine and found the object; it was a white paper towel wrapped around a brown bag, which contained material that was later identified as marijuana and heroin. The deputies thereupon arrested defendant and his companions.

After his arrest defendant gave three statements to the authorities, each of which we discuss separately. The first of these was exculpatory; the second and third, incriminatory. The first occurred about noon on August 24 when Deputy Sheriff Berman and another deputy engaged in a 'conversation' with defendant at the sheriff's Lennox Station. The deputies did not advise defendant of his right to remain silent or his right to counsel. In response to questions defendant stated that he had never seen the package containing the heroin and marijuana until after the deputies had discovered it in the engine of the car.

Deputy Berman again questioned defendant at 6:15 p.m. the next day and obtained answers to his queries which we have characterized as defendant's second statement. The deputy did not first advise defendant of his right to counsel or his right to remain silent but told defendant that he had talked with defendant's two companions and had become convinced that defendant had possessed the package. He asked if defendant would like to make a statement; defendant replied, 'I want to say something but I can't.' The deputy then told defendant that if in fact he was the possessor of the package he should not allow his two companions to go to jail. Explaining in detail his reasons for believing defendant to be the guilty party, the deputy again asked if defendant wanted to make a statement.

Defendant then stated that on the previous evening a friend had approached him and asked him to hold a package; the friend told defendant, 'The police are outside. I am going to get rousted.' Defendant asked what was in the package; the friend replied, 'Weed and pills.' 1 Defendant thereupon put the package in his pocket and forgot about it until the deputies approached him at the service station. He stated that he would not have accepted the package if he had not been intoxicated. Defendant signed a written statement containing the substance of his oral remarks, which we designate as his third statement; again the officers did not advise him of his right to counsel or his right to remain silent.

We first consider defendant's contention that the admission into evidence of his incriminating second and third statements violated the constitutional rules set forth in Escobedo v. State of Illinois, supra, 378 U.S. 478, 84 S.Ct. 1758, and People v. Dorado, supra, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361. 2 The Attorney General, while admitting that defendant objected to the introduction of the third statement on Escobedo-Dorado grounds, contends that defendant failed so to object to the admission of the second statement and that defendant is therefore precluded from raising the issue here. Since defendant's trial took place in November 1964, after the date on which the United States Supreme Court decided Escobedo, the Attorney General argues that a failure to tender such objection constitutes a waiver of the constitutional right.

We have concluded, however, that the failure of a defendant to object to the introduction of illegally obtained statements at a trial held prior to January 29, 1965, the date of this court's final Dorado ruling as to defendant's constitutional rights, 3 does not automatically operate as a waiver of such rights. We held in Dorado that the principles established by Escobedo could not logically be limited to statements which had been obtained after the suspect's request for counsel had been denied. A number of state and federal courts, however, had not yet fully 'perceived the implications of Escobedo.' (Johnson v. State of New Jersey (1966) 384 U.S. 719, 733, 86 S.Ct. 1772, 16 L.Ed.2d 882.) 'Defendants can no more be charged with anticipating (those implications) than can the States.' (O'Connor v. Ohio (1967) 385 U.S. 92, 93, 87 S.Ct. 252, 253, 17 L.Ed.2d 189 (per curiam) (referring to Griffin v. State of California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106).)

In the absence of special circumstances justifying an inference of knowing and intelligent waiver of an Escobedo-Dorado claim, 4 we cannot assume such a waiver in a trial held before January 29, 1965. (People v. Natividad (1966) 240 Cal.App.2d 244, 246--247, 49 Cal.Rptr. 437; see also People v. Janssen (1965) 238 Cal.App.2d 106, 109, 47 Cal.Rptr. 453; People v. Gastelum (1965) 237 Cal.App.2d 205, 209, 46 Cal.Rptr. 743; People v. Berry (1965) 236 Cal.App.2d 460, 462, 46 Cal.Rptr. 298; compare Miranda v. State of Arizona, supra 384 U.S. 436, 495--496 fn. 69, 86 S.Ct. 1602, 16 L.Ed.2d 694; People v. Treloar (1966) 64 Cal.2d 141, 143--144, 49 Cal.Rptr. 100, 410 P.2d 620; In re Varnum (1965) 63 Cal.2d 629, 631, 47 Cal.Rptr. 769, 408 P.2d 97; People v. Hillery (1965) 62 Cal.2d 692, 711, 44 Cal.Rptr. 30, 401 P.2d 382; People v. Kitchens (1956) 46 Cal.2d 260, 262--263, 294 P.2d 17.) Insofar as previous decisions of the Courts of Appeal rest on a contrary assumption they are disapproved and not to be followed (see, e.g., People v. Miller (1966) 245 A.C.A. 111, 143--144, 53 Cal.Rptr. 720 (dictum); People v. Woods (1966) 239 Cal.App.2d 697, 704--705, 49 Cal.Rptr. 266; People v. Valdez (1966) 239 Cal.App.2d 459, 465--466, 48 Cal.Rptr. 840; People v. Almond (1965) 239 Cal.App.2d 46, 49--50, 48 Cal.Rptr. 308; People v. Brown, supra, 238 Cal.App.2d 924, 929, 48 Cal.Rptr. 204; People v. Palmer (1965) 236 Cal.App.2d 645, 650, 46 Cal.Rptr. 449 (dictum)).

In the instant case, however, we need not determine whether special circumstances justify an inference of knowing and intelligent waiver. Contrary to the Attorney General's contention, the record discloses upon closer examination that defense counsel appropriately objected to the admission of both defendant's second and third statements.

Having thus determined that we may properly consider defendant's Dorado contention, we point out that the prosecution has not sustained its burden of showing that at the time the deputy obtained defendant's incriminating second and third statements the accusatory stage had not matured. Since the deputy did not first advise defendant of his right to counsel and his right to remain silent the trial court should have excluded the statements; its failure to do so constituted reversible error. 5

In People v. Stewart (1965) 62 Cal.2d 571, 43 Cal.Rptr. 201, 400 P.2d 97, affd. sub nom. Miranda v. State of Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, we set forth the circumstances which signal the advent of the accusatory stage. '(W)hen the officers have arrested the suspect and the officers have undertaken a process of interrogations that lends itself to eliciting incriminating statements, the accusatory or critical stage has been reached * * *.' (62 Cal.2d at p. 577, 43 Cal.Rptr. at p. 204, 400 P.2d at p. 100.) We entertain no doubt that the first of these conditions clearly appears; when defendant made his incriminating statements he had been arrested and thereafter held in custody for over 36 hours.

Turning to the second condition, we note that the record fails to disclose that the officers had not undertaken a process of interrogations that lent itself to eliciting incriminating statements. In People v. Luker (1965) 63 Cal.2d 464, 47 Cal.Rptr. 209, 407 P.2d 9, we sa...

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