People v. Ford

• Decision Date: 19 May 1965
• Docket Number: Cr. 9879
• Citation: 234 Cal.App.2d 480,44 Cal.Rptr. 556
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth Earl FORD, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 556

44 Cal.Rptr. 556

234 Cal.App.2d 480

The PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth Earl FORD, Defendant and Appellant.

Cr. 9879.

District Court of Appeal, Second District, Division 2, California.

May 19, 1965.

Rehearing Denied June 9, 1965.

Hearing Denied July 14, 1965.

Robert W. Armstrong, Los Angeles, for appellant.*

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., George J. Roth, Deputy Atty. Gen., for respondent.

FLEMING, Justice.

Kenneth Ford was convicted of unlawfully taking and driving an automobile (Vehicle Code, § 10851), but was acquitted of grand theft of an automobile (Penal Code, § 487(3)). Four prior felony convictions (larceny of auto, Oklahoma, 1950; burglary, Oklahoma, 1950; burglary, California, 1953; burglary, California, 1958) were admitted before trial.

The principal issue on appeal is whether questioning of a suspect by the police had ceased to be investigatory and become accusatory so that the accused should have been advised of his right to remain silent and his right to counsel under the rule of People v. Dorado, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361.

On the morning of November 27, 1963, Mrs. Mary Pennario, a resident of Los Angeles, awoke to discover missing her blue 1960 Plymouth automobile, license number JLX 026. Her house had been entered during the night, the keys to her automobile taken, and certain personal property had been stolen. Mrs. Pennario had not given anyone permission to take her car.

At 1:00 a. m. on November 29 a deputy sheriff in Modesto cited the defendant Ford for driving without a license in a blue 1960 Plymouth, license number JLX 026. Ford was asked who the registered owner of the car was, and at first said the car belonged to his sister, but when asked his sister's name he could not give it and then said the car belonged to a girl friend or a friend of a girl friend. After receiving the citation Ford was allowed to go on his way.

At 11:45 p. m. on the same day, November 29, in Bakersfield, Police Officer John Burum and a fellow-officer observed Ford in the driver's seat of a blue 1960 Plymouth, license number JLX 026, double-parked with the motor running. On checking the license number, the officers learned the car had been reported as a stolen car by the Los Angeles Police Department. In a brief conversation Ford was asked who owned the vehicle. He replied that it was registered to Mary Pennario, but he did not know her address. Ford was then told the car had been reported as stolen. To this he said nothing. Ford was arrested and taken to the Bakersfield police station by the two officers and there questioned by Officer Burum and another officer. During this questioning Ford said he had borrowed the car in Watts from a friend named Mike, he knew it was hot but he had not taken the car initially, he had driven to Oakland and was returning to Los Angeles. This conversation took place shortly after the arrest and lasted 30 to 40 minutes. On its conclusion Ford was placed in custody in the Bakersfield county jail, and the auto was impounded.

On December 3, 1963, William McMonagle, a police officer from Los Angeles who was the investigating officer in the Pennario case, picked up Ford in Bakersfield to take him to Los Angeles. In Bakersfield Ford told Officer McMonagle he had known the car was stolen but he had not taken it. On the way to Los Angeles during a conversation of some duration Ford again said he had known the car had been stolen, that he would take the rap for the stolen car but not for the burglary. He had gotten the car from a man named Mike in Watts, and had been to Oakland twice, and to Bakersfield about three times, and was on his way back to Los Angeles at the time of his arrest. Ford also said that on his first trip through Bakersfield he had been loaded, i. e., carrying illegal merchandise.

On December 5, 1963, a later conversation between Officer McMonagle and Ford was tape-recorded at the Los Angeles police station, and part of this conversation in which Ford said it was a good thing that he had not been stopped on his first trip because he had been loaded was played to the jury during the cross-examination of the defendant. Defendant's objection to this evidence was overruled.

Right to Counsel and Right to Remain Silent

People v. Dorado, 62 A.C. 350, 366, 42 Cal.Rptr. 169, 179, 398 P.2d 361, 371, held that when a police investigation has become an accusatory one, 'that is, when it has begun to focus on a particular suspect, the suspect has been taken into police custody, and the police have carried out a process of interrogations that lends itself to eliciting incriminating statements', then the police must inform the person accused of his right to counsel and his right to remain silent. If the warning has not been given then the accused's statements are not admissible in evidence.

In this case we are concerned with the admissibility in evidence of two different sets of questionings, a later set with the Los Angeles police and an earlier set with the Bakersfield police.

With respect to the later questionings by the Los Angeles police, Ford should have been advised of his constitutional rights as outlined in People v. Dorado. The questioning of Ford on the way to Los Angeles four days after his arrest and his subsequent questioning in Los Angeles took place at a time when the inquiry had focused on Ford as an accused, and the presence of a tape-recorder on the latter occasion suggests that the primary purpose of these talks was to elicit incriminating statements from him for use in a subsequent prosecution. A warning to the prosecutive defendant that he was entitled to counsel and need not answer questions should have been given prior to such questionings. Since there was no showing that Ford had been so warned, any incriminating statements secured from him on these occasions should have been excluded from evidence. (People v. Dorado, 62 A.C. 350, 365, 42 Cal. Rptr. 169, 398 P.2d 361; People v. Modesto, 62 A.C. 452, 42 Cal.Rptr. 417, 398 P.2d 753; People v. Stewart, 62 A.C. 597, 43 Cal.Rptr. 201, 400 P.2d 97.)

However, the earlier questioning by the Bakersfield police at the station immediately following the arrest took place during a different stage of the proceedings. Although Ford was under arrest on suspicion of car theft, there is nothing to suggest the arresting officers were conducting 'a process of interrogations' in an accusatorial manner designed to make him confess. At that point it appears the arresting officers were still trying to find out whether a crime had actually been committed and whether Ford should be held to answer for it. In pursuing their investigations they were entitled to ask questions, even of suspects. 'Nothing that we have said, of course, should be interpreted to restrict law enforcement officers during the investigatory stage from securing information from one who is later accused of the crime or from obtaining answers to their questions. * * * Only when the investigatory stage has become an accusatory one, that is, when it has begun to focus on a particular suspect, the suspect has been taken into police custody, and the police have carried out a process of interrogations that lends itself to eliciting incriminating statements, does the doctrine of Escobedo apply and the confession given without the required warning or other clear evidence of waiver become inadmissible evidence.' (People v. Dorado, 62 A.C. 350, 366, 42 Cal.Rptr. 169, 179, 398 P.2d 361, 371.)

In applying the Dorado rule here the critical distinction is that between investigation and accusation, between questioning designed to obtain information and questioning designed to secure a confession. (Escobedo v. State of Illinois, 378 U.S. 478, 485, 492, 84 S.Ct. 1758, 12 L.Ed.2d 977.) The authority of the police and the obligation of the citizen differ sharply in each stage. In the investigatory stage the police are fully entitled to question all persons from whom information may be derived. All citizens are under a statutory duty to assist the public authorities in maintaining the peace and in suppressing crime, a duty which goes back hundreds of years in the common law (Govt.Code, §§ 26600, 26602, 26604, Penal Code, § 150), and which, by implication at least, includes the furnishing on request of information about crime to the public authorities. ¹ The Constitution does not prohibit solicitation of information by the police from a suspect, even one under restraint. Investigatory questioning by the police of a person under restraint is sanctioned by case law (People v. Mickelson, 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658; People v. Martin, 46 Cal.2d 106, 293 P.2d 52; People v. Blodgett, 46 Cal.,2d 114, 293 P.2d 57), and by statute (California Penal Code, § 849(b)(1); New York Code of Criminal Procedure, § 180-a (adopted 1964)), and is a part of law enforcement procedure which benefits both the police and the person restrained, who when given a ready opportunity to explain suspicious circumstances may quickly clear himself and avoid the stigma of a public charge of crime. (Police Practices and the Law, by Edward L. Barrett, Jr., 50 Cal.L.Rev., pp. 11, 30, 46; III Wigmore on Evidence (3rd ed.) pp. 319, 360.)

However, when questioning has ceased to be investigatory and has become accusatory then police solicitation of information is now sharply circumscribed. The police are no longer encouraged to solicit information but are discouraged from so doing, and the accused in turn is discouraged from further uncounseled conversation with the police. The policy of the law reverses itself, and the privilege of an accused against self-incrimination and to be advised by counsel supersedes the duty of a citizen to assist the police in suppressing crime. The accused must be warned he need not say anything. The accused must be told that he has the right to counsel. The...