People v. Garner, Cr. 3933

CourtCalifornia Court of Appeals
Citation234 Cal.App.2d 212,44 Cal.Rptr. 217
Decision Date05 May 1965
Docket NumberCr. 3933
PartiesThe PEOPLE of the State of Callfornia, Plaintiff and Respondent, v. Harold Lloyd GARNER, Defendant and Appellant.

Page 217

44 Cal.Rptr. 217
234 Cal.App.2d 212
The PEOPLE of the State of Callfornia, Plaintiff and Respondent,
v.
Harold Lloyd GARNER, Defendant and Appellant.
Cr. 3933.
District Court of Appeal, First District, Division 1, California.
May 5, 1965.
As Corrected May 26, 1965.
Rehearing Denied June 21, 1965.
Hearing Denied June 30, 1965.

Page 219

[234 Cal.App.2d 215] Michael V. McIntire, San Luis Obispo, for appellant (Under appointment of District Court of Appeal).

Stanley Mosk, Atty. Gen., of State of California, Robert R. Granucci, John F. Kraetzer, Deputy Atty's. Gen., San Francisco, for respondent.

SIMS, Justice.

On November 16, 1960 defendant appealed from his conviction on November 9, 1960 of two violations of section 464 of the Penal Code, burglary with explosives, following a jury trial. After proceedings regularly taken to that end, the appeal was dismissed for failure to file an opening brief and a remittitur issued November 6, 1961.

On December 10, 1963 defendant filed a petition for habeas corpus with the State Supreme Court alleging as a ground of illegal confinement, among others, a denial of representation by counsel on appeal. (Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811.) On January 22, 1964 the petition was transferred to this court, and the following day the dismissal was vacated, the remittitur was thereupon recalled and counsel was appointed to represent defendant on the reinstated appeal. A subsequent motion by the People to vacate the order which vacated the dismissal was denied. 1

Defendant assigns as error the admission into evidence of incriminating statements which he alleges were secured from him in violation of his constitutional rights (1) because he was illegally arrested, (2) because he was not promptly arraigned, and (3) because they were elicited under circumstances which fail to satisfy recently enunciated criteria for their admission. He further contends that his right to be free from unreasonable search and seizure was violated by the manner in which photographs were taken of his truck and the manner in which his trousers were secured from his home, and that, therefore, the use of the evidence thereby obtained was error.

The circumstances giving rise to the defendant's arrest and [234 Cal.App.2d 216] the events of which complaint is made began on July 4, 1960, when an employee discovered that the offices of Conway Motors in Concord had been burglarized. The safe had been cut by an acetylene torch and the fire clay insulation

Page 220

around the lock had been removed. Money and savings certificates were taken from the safe. Cabinets in the body shop had been broken into and rifled of tools.

On Saturday, July 9, 1960, the owner of McFetridge Buick in Walnut Creek discovered that the safe in his office had been cut open with an acetylene torch, and that cash had been taken from the cash box and a cigarette machine. The same day a disinterested witness furnished the Walnut Creek Police Department with the license number of a pickup truck which had been parked near the scene of the crime between the hours of midnight and 1:30 a. m. The registered owner of this truck had entered into an agreement to sell it to defendant, and had delivered possession to the defendant on June 28, 1960.

Lieutenant Thompson of the Walnut Creek Police Department contacted the registered owner's partner, and, as was shown out of the presence of the jury, apparently armed with the information that defendant had purchased the car, talked with defendant's parole officer who authorized the lieutenant to arrest the defendant for investigation of parole violation for purchasing a vehicle without permission, for quitting his former employment, and for keeping late and unusual hours. This authorization was confirmed in writing following defendant's arrest on Monday, July 11. (See Pen.Code § 3056.)

On July 11 the lieutenant and another officer questioned defendant at his new place of employment in Berkeley. He admitted that he had purchased the pickup truck late in June without advising his parole officer; 2 and he showed the officers the truck which bore the reported license number. Thereupon the officers took the defendant into custody and returned to [234 Cal.App.2d 217] the Walnut Creek Police Department. At the police station he was questioned concerning his activities on the nights of July 8 and 9. He stated he worked on a truck in the evening at the Danville Garage and then returned home. The officers then went to the Garner residence, identified themselves, questioned Mrs. Garner concerning the defendant's activities on the night in question, and requested and were given a pair of khaki pants which Mrs. Garner stated the defendant had been wearing on the night of July 8. Particles found in these trousers were subsequently identified as similar to the insulation in the safe at McFetridge Buick.

The lieutenant again talked to the defendant at lunchtime on July 11, again during the afternoon and finally at 4:00 or 4:30 when he was taken to the county jail. He was again interviewed on the 12th for about fifteen minutes. In all of the conversations of the 11th and 12th he denied any involvement in the incidents in question.

Meanwhile, the husband of defendant's sister-in-law investigated some boxes which the defendant had left on his premises on July 3. On finding that they contained tools, rather than household goods as represented, on July 12 he notified the police. On the 13th the lieutenant came and picked up the tools. They were subsequently identified as from Conway Motors. On the 11th or 12th, the owner of the Danville Garage advised the police that he had left the defendant at the garage between 11:30 and midnight on the 8th, and that the next morning defendant stated that he fell asleep about midnight and didn't get any work done, and that his wife woke him up about 7:00 a. m. and he went home.

Defendant sent for the lieutenant on the 13th, and the latter went to the county jail on getting the message after returning with the stolen tools. At this time defendant related the details of the commission of the McFetridge offense. The lieutenant then advised the defendant that he had just returned from his brother-in-law's, and that

Page 221

he believed Garner was involved in another burglary in Concord. Defendant then, at the request of the lieutenant, recited his activities in connection with that burglary. Thereafter, defendant was taken to the district attorney's office and a stenographic record of his statement, which was later introduced into evidence, was made.

Further details concerning the foregoing and additional statements made by the defendant, as reflected in the evidence introduced at the trial, are set forth below.

[234 Cal.App.2d 218] The defendant did not testify in his own behalf, either on the merits of the case or on voir dire, on the issue of whether his inculpatory statements were free and voluntary. After each side had rested and argued to the jury and before the court instructed the jury, the defendant moved to open up his case in chief so that he could testify. The motion was denied. No offer of proof was made in connection with the motion and the nature of the testimony which defendant desired to produce is left to conjecture and speculation. The matter was not pressed on motion for new trial nor by defendant personally when arraigned for judgment.

The Alleged Violation of Defendant's Dorado Rights

After the case was tried and after appellant's opening brief was filed the requirements for admissibility of incriminating statements were elaborated on and restricted as set forth in People v. Dorado (1965) 62 A.C. 350, 365, 42 Cal.Rptr. 169, 179, 398 P. 2d 361, 371, wherein it is stated that a 'confession could not properly be introduced into evidence because (1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements, (4) the authorities had not effectively informed defendant of his right to counsel or of his absolute right to remain silent, and no evidence establishes that he had waived these rights.' (Pp. 365-366, 42 Cal.Rptr. p. 179, 398 P.2d p. 371.)

Defendant's statements in the record must be assayed by those reagents. First, it may be pointed out that with the exception of the initial interview, and regardless of whether his detention be termed an 'arrest' or a 'return to custody' (hereinafter discussed), all of the statements were made while he was in actual custody.

At the time of the initial interview no warning was given defendant of his right to counsel or his right to remain silent. Reasonable minds could differ as to what extent the investigation had progressed from a general inquiry into one focusing on the defendant. So far as appears from the record all that the officers knew at that time was that defendant, a paroled felon, reportedly had some two weeks before acquired a truck which had been observed at the scene of a burglary. Before doing anything at all the officers undertook to verify the information they had. It was only after defendant admitted the purchase, ownership, and possession of the truck that he was taken into custody. It is concluded that these admissions[234 Cal.App.2d 219] were made prior to the time that investigation had focused on defendant, and that although the nature of the interrogation was such that it could elicit statements which might be either incriminating or explanatory, it was not part of a process aimed at securing the former. There being a lack of three of the elements referred to there was no occasion to admonish this suspect of his right to counsel and to remain silent. (See People v. Modesto (1965) 62 A.C. 452, 462, 42 Cal.Rptr. 417, 398 P.2d...

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