People v. Faris

• Decision Date: 15 November 1965
• Docket Number: Cr. 9037
• Court: California Supreme Court
• Parties: , 407 P.2d 282 The PEOPLE, Plaintiff and Respondent, v. Rae Joni FARIS, Defendant and Appellant.

Page 370

47 Cal.Rptr. 370

63 Cal.2d 541, 407 P.2d 282

The PEOPLE, Plaintiff and Respondent, v. Rae Joni FARIS, Defendant and Appellant.

Cr. 9037.

Supreme Court of California, In Bank.

Nov. 15, 1965.

Elinor Chandler Duncan, for defendant and appellant.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., William E. James, Asst. Atty. Gen., and Edward M. Belasco, Deputy Atty. Gen., for plaintiff and respondent.

TRAYNOR, Chief Justice.

Defendant Rae Joni Faris appeals from a judgment of conviction entered on a jury verdict finding her guilty of burglary in the second degree. The trial court denied a motion for a new trial, refused probation and sentenced defendant to the state prison.

In the afternoon of July 11, 1963, police officers arrested James Yokum when he was caught burglarizing an apartment in Los Angeles. Yokum told the officers that he lived in an apartment at 2112 Halldale Street and that they could search it. When the officers arrived at that address, however, they learned that Yokum had moved away two or three months before. At approximately 10:00 p. m. that evening the officers received information that led them to an apartment at 2816 South Ellendale Street. The apartment house manager told them that Yokum lived there and gave them a key to Yokum's apartment and permission to search it. The officers, without a warrant, entered Yokum's apartment and found numerous clocks, irons, cameras, wallets, and shavers, which were later determined to be stolen property.

Defendant entered while the search was in progress. She told the officers that she shared the apartment with Yokum. She also admitted that much of the property found in the apartment was not hers or Yokum's. When asked if the items had been stolen, she replied, 'Well, I am not sure how he got them, I know he has been doing some type jobs, he usually leaves during the daytime and gets back around 2:00 p. m. with the loot, and then pawns it and usually tears up the pawn tickets.' The officers arrested defendant and seized the property as evidence.

The police interviewed defendant on July 12, the morning after her arrest. She denied participating in the burglaries. During an interrogation on July 13, the police told defendant that Yokum had implicated her in the burglaries. Defendant at first denied any such complicity, but ultimately confessed that she had accompanied Yokum on about 'ten jobs.' The interrogating officer summarized the substance of the conversation in a handwritten memorandum that defendant signed. ¹

Over objection the memorandum was admitted into evidence, and the interrogating officer testified to the contents of the defendant's statement.

After the prosecution rested, defense counsel called Yokum to the stand. After exonerating defendant of any participation in the burglaries he requested a recess to confer with him attorney. He thereafter returned to the stand and, to the surprise of the defense, recanted his prior testimony and implicated defendant as his accomplice in the burglaries. Defendant stated that she now wished to testify in her own defense. She took the stand and denied that part of her statement in which she admitted accompanying Yokum during the burglaries.

Defendant contends that her statement was obtained in violation of her rights to counsel and to remain silent and was therefore inadmissible. (Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361.) Once the accusatory stage is reached, a suspect is entitled to counsel, and any statements elicited in the absence of counsel must be excluded unless the accused has been informed of his rights to counsel and to remain silent or has otherwise waived those rights. (People v. Dorado, supra, pp. 353-354, 42 Cal.Rptr. 169, 398 P.2d 361.)

The accusatory stage occurs 'when the officers have arrested the suspect and * * * have undertaken a process of interrogations that lends itself to eliciting incriminating statements * * *.' (People v. Stewart, 62 Cal.2d 571, 577, 43 Cal.Rptr. 201, 204, 400 P.2d 97, 100.) The police arrested defendant and took her into custody on July 11, 1963. Thereafter, they interrogated her on July 12 and again on July 13. During the latter interview, an officer informed defendant that Yokum had implicated her in the burglaries. At this time the investigation clearly had focused on defendant and the police were under a duty to advise her of her constitutional rights before attempting to elicit a confession. There is no evidence that they did so, and defendant testifed that they did not. ² The fact that a trusty or officer of the jail informed defendant that she could apply for counsel under the referral system does not establish that she was aware of her rights to counsel and to remain silent during interrogation. Since it does not appear that defendant knowingly waived these rights, the statement should have been excluded. (Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758; People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361; People v. Stewart, 62 Cal.2d 571, 43 Cal.Rptr. 201, 400 P.2d 97.)

The trial court also erred in admitting the evidence obtained during the search of the apartment on South Ellendale. Once a defendant establishes that a search was conducted without a warrant, the burden shifts to the prosecution to show proper justification. (People v. Reeves, 61 Cal.2d 268, 274, 38 Cal.Rptr. 1, 391 P.2d 393; People v. Shelton, 60 Cal.2d 740, 744, 36 Cal.Rptr. 433, 388 P.2d 665; People v. Haven, 59 Cal.2d 713, 717, 31 Cal.Rptr. 47, 381 P.2d 927; People v. Privett, 55 Cal.2d 698, 700, 12 Cal.Rptr. 874, 361 P.2d 602; Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23.)

The search in this case cannot be justifed as incident to Yokum's arrest since he was arrested some six hours earlier while burglarizing an apartment in another section of the city. (People v. Cruz, 61 Cal.2d 861, 866, 40 Cal.Rptr. 841, 395 P.2d 889; People v. King, 60 Cal.2d 308, 311, 32 Cal.Rptr. 825, 384 P.2d 153.)

The search cannot be justified on the ground that the manager of the apartment house consented to it. (Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856.) Nor can it be justified on the ground that Yokum consented to it. He was aware that a search of the South Ellendale Street apartment would lead to the discovery of a large quantity of stolen merchandise, and he tried to protect himself by giving the officers the address of, and permission to search, the Halldale Street apartment. His attempt to mislead the officers with a false address clearly demonstrates that he did not consent to a search of the South Ellendale Street apartment. (Castaneda v. Superior Court, 59 Cal.2d 439, 443-444, 30 Cal.Rptr. 1, 380 P.2d 641; People v. Haven, 59 Cal.2d 713, 720, 31 Cal.Rptr. 47, 381 P.2d 927.) Whether or not defendant's statement was sufficiently explicit to constitute a confession, the errors in admitting the statement and the physical evidence seized at the apartment were obviously prejudicial. (Cal.Const., art. VI, § 4 1/2.) For purposes of retrial we note also that defendant's statements made to the officers while they were conducting the illegal search are also inadmissible as a product of that search. Defendant returned to the apartment and found three officers conducting a search. They confronted her with the stolen property and secured damaging admissions. Under these circumstances the connection between defendant's responses and the illegal search was not "* * * so attenuated as to dissipate the taint" of illegality. (Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 417; People v. Bilderbach, 62 Cal.2d 757, 763-768, 44 Cal.Rptr. 313, 401 P.2d 921).

The judgment is reversed.

PETERS, TOBRINER, PEEK, BURKE, and WHITE*, JJ., concur.

McCOMB, Justice (dissenting).

I dissent. I would affirm the judgment for the reasons expressed by Mr. Justice Fourt in the opinion prepared by him for the District Court of Appeal, Second Appellate District, Division One, and concurred in by Mr. Presiding Justice Wood and Justice Lillie, which is quoted in full below:

This is an appeal from the 'judgment and sentence and denial of motion for new trial' made following a conviction of second degree burglary (Pen.Code, § 459).

In an information filed in Los Angeles County on August 5, 1963, Defendant was charged in Count I with burglarizing the apartment of Oscar Kelsey at 4226 West Adams Street on June 18, 1963, she was charged in Count II with burglarizing the apartment of Andrew La Berth Jr. between June 18 and June 19 of 1963. Counsel other than the public defender was appointed to represent the defendant, she pleaded not guilty and a jury trial was had. She was convicted of the charge set forth in Count I and acquitted of the Count II charge. She previously was convicted of and served a term in a state prison on a narcotics offense, although such prior charge was not alleged in the information. Probation was denied and she was sentenced to the state prison. This appeal followed.

The 'sentence' and the 'order denying the motion for the new trial' are not appealable under the circumstances of this case and will be dismissed accordingly.

A re sume of some of the facts is as follows: On June 18, 1963, Kelsey left his apartment numbered 203, 4226 West Adams Street, Los Angeles, in good order and condition when he went to work at about 6:50 a. m. When he returned in the evening he found that the apartment had been ransacked and a number of his belongings were missing, including among other things a phonograph record player and radio, a deer rifle and various articles of clothing. No permission had been given to anyone to enter or take the things mentioned or otherwise. An occupant of the apartment house saw a man leave the building about 2 p. m. on June 18 carrying a record player toward a taxicab which was parked in...