People v. Dorado

• Decision Date: 31 August 1964
• Docket Number: Cr. 7468
• Citation: 394 P.2d 952,40 Cal.Rptr. 264
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert B. DORADO, Defendant and Appellant.

Page 264

40 Cal.Rptr. 264

394 P.2d 952

The PEOPLE, Plaintiff and Respondent, v. Robert B. DORADO, Defendant and Appellant.

Cr. 7468.

Supreme Court of California.

Aug. 31, 1964.

Edward L. Cragen, San Francisco, under appointment by Supreme Court, for defendant and appellant.

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., and Robert R. Granucci, Deputy Attys. Gen., for plaintiff and respondent.

TOBRINER, Justice.

Defendant appeals from a jury verdict finding him guilty of a violation of Penal Code, section 4500, which is a capital offense. The indictment charged defendant, a life-term inmate of San Quentin Prison, with malicious assault with a deadly weapon, which resulted in a fellow prisoner's death; section 4500 fixes the penalty for this crime at death. The court denied defendant's motion for a new trial. Penal Code, section 1239, subdivision (b), provides for an automatic appeal.

We hold, in the light of recent decisions of the United States Surpeme Court, that, once the investigation focused on defendant, any incriminating statements given by defendant during interrogation by the investigating officers became inadmissible in the absence of counsel and by the failure of the officers to advise defendant of his right to an attorney and his right to remain silent. The admission into evidence of a confession obtained in such a manner requires reversal.

The facts of this case show the background and occasion for defendant's confession. According to prison officers, they discovered at about 8:00 a. m. on December 12, 1961, the body of one Nevarez in the lower yard behind the bleachers and near the industrial quonset huts at San Quentin Prison. About 20 minutes later medical personnel pronounced the victim dead upon arrival at the prison hospital. The nature of the chest wounds of the victim showed that they could have been inflicted by a small knife and that he probably had been physically restrained during the killing.

Correctional officers undertook an immediate investigation and discovered in a trashcan in a nearby restroom a blue denim jacket with the prison identification number cut out, the name 'Dorado' on the docket, a button missing, and bloodstains of Nevarez's blood type. In the same trashcan they found a melton jacket with the number removed and a sharpened kitchen knife with a taped handle. They found the button belonging to the blue denim jacket at the scene of the homicide. Officers discovered a second sharpened knife with a taped handle stained with blood of the victim's type in another trashcan

When the officers located defendant in his cell around 9:00 a. m. he was attired in his underwear; when they requested that he dress, he donned clean clothing. The officers found no worn clothing in his cell but did discover a roll of tape similar to that used to tape the knife handles. Under a stack of soiled clothing in a clothes hamper the officers located defendant's trousers, which were stained with the victim's blood type.

Captain Hocker, an official of San Quentin Prison, testified that later during the same morning the officers brought defendant to his office. When defendant was shown the jacket on which his name appeared, he made no comment, but wept upon being told by Captain Hocker that Nevarez was dead. Captain Hocker then requested Officer Glazier to take defendant to the hospital laboratory in order that a technician might remove and test some brown flecks on defendant's hands, which appeared to be dried blood. After defendant's return about an hour later, Mr. Midyett and some other members of the district attorney's office arrived.

Mr. Midyett and Captain Hocker testified that early in the afternoon upon interrogation defendant freely and voluntarily admitted the killing. Both testified, further, that on the following morning, December 13, at his cell in the adjustment center, defendant, in the presence of Mr. Midyett, freely and voluntarily gave a written statement. Defendant thereafter escorted Mr. Midyett and a prison officer over the route he had taken in the course of the criminal incident, discussing with them certain details of the crime. On December 15, after Jiminez had been apprehended on suspicion of complicity, a third interrogation of defendant took place, and on this occasion defendant implicated Jiminez as the accomplice who held Nevarez.

At the trial Captain Hocker testified that he not only initially interrogated the defendant but had been present during the major part of defendant's interrogation by members of the district attorney's office. He further testified that he did not at any time inform defendant of his right to counsel or of his right to remain silent. He did not hear anyone else so inform the defendant Mr. Midyett testified to the same effect.

We must determine whether the confession, assuming its voluntariness, was properly admitted into evidence in view of two recent decisions of the United States Supreme Court: Massiah v. United States (1964) 377 U.S. 201, 84 S.Ct. 1199, and Escobedo v. Illinois (1964) U.S., 84 S.Ct. 1758. These cases were decided against the backdrop of Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, which had held that the Sixth Amendment, through the Fourteenth Amendment, constitutionally guaranteed to those accused of crime the right to counsel. ¹

In Massiah v. United States, supra, a trial court admitted into evidence against defendant certain of his own incriminating statements. Defendant, who had been indicted for violation of the federal narcotics laws, had retained counsel. After defendant's release on bail, a federal agent arranged with one Colson, who had been jointly indicted with defendant, for the installation in Colson's car of a radio transmitter which would enable the agent, through a receiving device in a car parked down the street, to listen to Colson's conversation with defendant. The statements of defendant in the course of this conversation came before the jury through the agent's testimony. Reversing the conviction, the Supreme Court held that defendant suffered a denial of the basic protections of the Sixth Amendment 'when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of counsel.' (377 U.S. 201, at p. 206, 84 S.Ct. 1199, at p. 1203.)

In Escobedo v. Illinois (1964) 84 S.Ct. 1758, the Supreme Court reversed a state conviction because the court admitted into evidence defendant's incriminating statements voiced during defendant's pre-indictment interrogations in the absence of counsel. In this case defendant, 'a 22-year-old of Mexican extraction, with no record of previous experience with the police,' (84 S.Ct. at p. 1760) was arrested and interrogated about the fatal shooting of his brother-in-law. Defendant retained a lawyer and obtained release by habeas corpus. Several days later Benedict Di Gerlando 'who was then in police custody and who was later indicted for the murder along with petitioner, (defendant) told the police that petitioner had fired the fatal shots.' (84 S.Ct. at p. 1759.) The police took defendant and his sister, the widow of the victim, to police headquarters, informing defendant that Di Gerlando had named him as the prepetrator of the shooting. The officers urged him to admit to the crime; he replied, 'I am sorry but I would like to have advice from my lawyer.' (84 S.Ct. at p. 1759.) During the course of further interrogation defendant repeatedly asked to speak to his lawyer, and the lawyer, in turn, attempted to contact defendant, but neither effort succeeded.

Ultimately confronted by Di Gerlando, defendant said, 'I didn't shoot Manuel, you did it,' and thus admitted to some knowledge of the crime. (84 S.Ct. at p. 1761.) Later, he further implicated himself and finally gave a statement to the state's attorney. The latter 'testified that he did not advise petitioner (defendant) of his constitutional rights, and it is undisputed that no one during the course of the interrogation so advised him.' (Ibid.)

The Supreme Court pointed out that 'Petitioner, a layman, was undoubtedly unaware that under Illinois law an admission of 'mere' complicity in the murder plot was legally as damaging as an admission of firing of the fatal shots. Escobedo v. Illinois, 28 Ill.2d 41, 190 N.E.2d 825. The 'guiding hand of counsel' was essential to advise petitioner of his rights in this delicate situation. * * *' (84 S.Ct. at p. 1762.) To posit the right to counsel under these circumstances upon whether 'the authorities had secured a formal indictment' would be to 'exalt form over substance.' The rule urged by the state 'would make the trial no more than an appeal from the interrogation.' (84 S.Ct. at p. 1763.) History has taught 'that a system of criminal law enforcement which comes to depend on the 'confession' will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation. * * *' (84 S.Ct. at p. 1764.)

The Court concluded: 'We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as 'made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S., at 342, 83 S.Ct. at 795 (9 L.Ed.2d 799) and that no statement elicited by the police during the...