People v. Dreas

• Decision Date: 26 March 1984
• Citation: 200 Cal.Rptr. 586,153 Cal.App.3d 623
• Parties: The PEOPLE, Plaintiff and Respondent, v. Saban DREAS, Defendant and Appellant. A018063.
• Court: California Court of Appeals Court of Appeals

Page 586

200 Cal.Rptr. 586

153 Cal.App.3d 623

The PEOPLE, Plaintiff and Respondent, v. Saban DREAS, Defendant and Appellant.

A018063.

Court of Appeal, First District, Division 4, California.

March 26, 1984.

Hearing Denied June 14, 1984.

David Murray, San Rafael, for defendant and appellant.

John K. Van De Kamp, Atty. Gen., Thomas A. Brady, Charles J. James, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

CALDECOTT, Presiding Justice.

The principal issue presented on this appeal is whether the administering of drugs to overcome the victim's resistance can constitute the element of force within the meaning of Penal Code section 211. ¹

Saban Dreas appeals from a judgment of conviction, following a jury trial, of three counts of robbery, three counts of administering drugs with intent to commit a felony (§ 222), three counts of burglary and two counts of auto theft.

The facts in each of the three instances are basically the same. Appellant would patronize a bar, strike up a conversation with the victim, a patron, and suggest that they go and have coffee. They would go to the victim's home, where appellant would surreptitiously insert Lorazepam, a hypnotic sedative and tranquilizer, into the victim's coffee. After the victim was rendered unconscious, appellant would take money, valuable items of personal property (in two incidents in excess of $25,000) and in two incidents the victim's automobile.

I. The "Force" Element of the Robbery

As stated above, appellant was found guilty of three counts of robbery. These convictions were predicated on evidence showing that in each instance appellant used Lorazepam, a tranquilizer, dissolved in hot coffee in order to drug his victims. The drug rendered the victims unconscious, overcoming their resistance to the taking of various items of personal property from their homes or persons. Appellant contends that the evidence is insufficient to sustain the robbery convictions because the use of drugs does not constitute "means of force or fear" within the meaning of section 211. We disagree.

While the issue thus presented is one of first impression in California, the legal authorities and sister state cases unanimously underline that the administering of drugs to overcoming the victim's resistance does constitute force within the purview of section 211.

Thus, Professor Perkins addressing this issue in his treatise concluded that: "Just as battery may be committed by the administration of poison, so the force used to obtain property from a person against his will may be applied internally." (Perkins & Boyce, Criminal Law (3d ed. 1982) p. 348.) Other scholars have reached identical conclusions. LeFave and Scott write: "One may commit robbery by striking his victim with fist or weapon and then, having thus rendered the victim unconscious or dazed or unwilling to risk another blow, taking property away from him. One may also render one's victim helpless by more subtle means, as by administering intoxicating liquors or drugs in order to produce a state of unconsciousness or stupefaction; to act in this way is to use force for purposes of robbery." (LeFave & Scott, Criminal Law (1972) pp. 697-698; accord, 4 Wharton's Criminal Law (14th ed. 1981) § 479, p. 67.)

A case in point is State v. Snyder (1918) 41 Nev. 453, 172 P. 364. In Snyder, appellant administered chloralhydrate to one Cooper, who was in charge of a saloon. After Cooper became unconscious, appellant took money from the cash register. The Nevada Supreme Court held that the administering of the drug constituted so-called "constructive force" which was sufficient to sustain the robbery conviction. In his concurring opinion, Chief Justice McCarran explained the matter as follows: " 'Force' is the power or energy by which resistance is overcome.... When, to take the personal effects of another, a blow is struck with a bludgeon, thereby paralyzing the victim's power of resistance, the taking will constitute robbery. The same effect might be produced on the victim by the physical act of administering a deadly potion. In either case resistance is involuntarily overcome. Great physical strength might be required to accomplish the result in the first instance, while a mere turning of the hand might effect the consequence in the second; force, however, is present in both. The agency through which the force operates is immaterial. The result in either case is the overcoming of resistance without the voluntary co-operation of the subject whose resistance is repressed; this is the test." (State v. Snyder, supra, 172 P. at pp. 366-367.)

The principles set out above rest on sound logical foundation. A showing of "force or fear" is not (and cannot be) limited to external forces such as bludgeoning the victim or displaying a lethal weapon to overcome his will and resistance. A poison or intoxicant, although internally applied, may also serve as a potent means to achieve the same goal and may also render the felonious taking of personal property a taking against the will of the victim, thereby constituting robbery.

II. Appellant's Pretrial Statements

Appellant was arrested at about 3 p.m. on January 28, 1982, and was taken directly to an interview room at the Hall of Justice in San Francisco. The police began the interview with appellant at about 3:45 p.m. Appellant was admonished of, understood and waived his constitutional rights. Appellant requested to call a friend but was not permitted to use the telephone until he was booked after the interview. The interview was terminated at about 5:15 p.m. Concerning the circumstances surrounding the interview, both the arresting officer, Inspector Dito, and the interviewing officer, Inspector Hamilton, testified that shortly after arriving at the burglary detail the handcuffs were removed from appellant and that appellant did not appear to be under the influence of alcohol or drugs, nor did he exhibit any signs of intoxication or drug use. The trial court, after considering the totality of circumstances, found that appellant had been properly advised of his constitutional rights; that his statements to the police had been voluntary and uncoerced; and that as a consequence appellant's pretrial admissions were admissible in evidence.

Appellant's first contention on appeal is that his pretrial statements to the police were involuntary within the meaning of the law and thus improperly admitted at trial. More specifically, appellant argues: (a) that the police violated his statutory right to use a telephone (§ 851.5) which tainted his subsequent statements; (b) that he was interrogated by the police after invoking his Fifth Amendment privilege; and (c) that his incriminating statements were a result of force and coercion on the part of the police. As discussed below, none of these contentions has any merit.

(a) Denial of Use of Telephone: Appellant's first argument that in violation of the statute he was denied his right to use the telephone after his arrest must fail for the simple reason that no such statutory violation has occurred.

Section 851.5, subdivision (a), provides in pertinent part that "Immediately upon being booked, and, except where physically impossible, no later than three hours after arrest, an arrested person has the right to make at least two completed telephone calls, as described in subdivision (b)." (Emphasis added.)

As appears on the face of the statute, the police have a duty to grant the suspect use of a telephone immediately after booking, but no later than within three hours after his arrest. In the case at bench, the police fully complied with the statutory mandate set out in section 851.5. As mentioned earlier, appellant was arrested at approximately 3 p.m., and following an interview he was booked at 5:15 p.m. The record also shows that immediately after the booking appellant was allowed to use the telephone and that he, in fact, did carry on an extended telephone conversation from the police station. Since said telephone use took place immediately after his booking and well within three hours after his arrest, appellant cannot well complain that either letter or spirit of the statute was violated.

(b) Invocation of Fifth Amendment: During the interrogation and prior to making his statements, appellant expressed his request to talk to some of his friends. The police continued the interrogation and appellant was allowed to speak with his friends only following the interrogation and making the incriminating statements. Appellant contends that due to the fact that he was a foreigner and had an incomplete grasp of the English language his request to speak with his friends was tantamount to invoking his Fifth Amendment privilege which rendered the admissions made subsequent thereto inadmissible in evidence (People v. Burton (1971) 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793; People v. Randall (1970) 1 Cal.3d 948, 83 Cal.Rptr. 658, 464 P.2d 114; People v. Ireland (1969) 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580).

To start with, the record fails to sustain that appellant does not have an adequate grasp of English. Appellant possesses a green card and has been in this country for fifteen years. He did not ask for an interpreter at any time during trial. As the trial court aptly observed, appellant did not have problems with the language and showed a fine choice of words and a good command of English throughout the trial.

In addressing the principal issue of whether appellant here has invoked his Fifth Amendment privilege by intending to talk to some of his friends during the police interrogation, we initially note that no particular form of words or conduct is necessary to assertion of the privilege and that the invocation of privilege or its waiver constitutes a question of fact which cannot be resolved by a per se rule, but only on an ad hoc basis taking into account the special circumstances of each case (People v. Ireland, sup...