People v. Lopez

Decision Date20 March 1979
Docket NumberCr. 9879
Citation153 Cal.Rptr. 541,90 Cal.App.3d 711
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Johnny Joe LOPEZ, Defendant and Appellant.

GARDNER, Presiding Justice.


In this case we must determine whether the Supreme Court in People v. Pettingill, 21 Cal.3d 231, 145 Cal.Rptr. 861, 578 P.2d 108, has established an inflexible rule which has created an impenetrable barrier against Any subsequent interrogation of an in-custody suspect after he has once invoked his Miranda rights. After an analysis of Pettingill and a consideration of the policy factors involved, we decline to read into Pettingill any such rigidly ritualistic dogma. Rather, we conclude that in Pettingill the Supreme Court has attempted to establish reasonable and flexible guidelines in order to accommodate the right of the individual to exercise his privilege against self-incrimination and society's interest in protecting itself through reasonably effective law enforcement procedures.


Defendant was convicted by a jury of two counts of kidnaping, two counts of violation of Penal Code § 288 and one count of violation of Penal Code § 288a. He was found to be a mentally disordered sex offender but not amenable to treatment. Sentenced to prison, he has appealed.


On January 13, 1977, in the Bloomington area of San Bernardino County, the defendant dragged 7 year old Michelle into his car. He drove to a secluded area, undressed her, laid on top of her, touched her vagina with his penis and compelled her to orally copulate him. When examined the next day, Michelle's hymen had been lacerated and her vagina abnormally dilated.

Nine months later, on October 27, 1977, in the City of Colton, also in San Bernardino County, the defendant dragged 6 year old Jessica into his car. He removed her clothing and molested her vaginal area to the extent that it caused pain and bleeding.

As we will note, the defendant confessed to both crimes.

At trial, his defense was an alibi, plus a disclaimer of his confessions.

We proceed to defendant's confessions. There is no issue as to their voluntariness. The only issue is compliance with Miranda as interpreted by Pettingill and its predecessor cases.


On October 31, 1977, four days after the incident with Jessica, defendant was arrested by Officer Nunez of the Colton Police Department for the kidnaping of Jessica. At 12:15 p. m., he was given his Miranda admonition. He said, "If I'm going to get in trouble I would rather have a lawyer." At that time, Officer Nunez terminated any further conversation. The defendant was delivered to the San Bernardino County Jail by a uniformed officer.

At the time of the interview, Officer Nunez was aware of the Michelle incident of 9 months before. However, he did not discuss this with the defendant.


Immediately after the defendant was received at the San Bernardino County Jail, a booking officer noticed that he resembled the described kidnaper in the Michelle incident of some 9 months before. This booking officer called Deputy Johnson who had the Michelle incident in his portfolio of unsolved crimes. He too recognized certain similarities (tattoos) between the suspect in the Michelle case and the defendant. At about 1:40 p. m., he began to question the defendant about the area of his residence, his employment, his past criminal record and the type of car he owned. He advised the defendant that a crime had occurred in the Bloomington area (the Michelle incident) about a year before which was similar to the offense for which the defendant had just been arrested. He said he would like to talk about that incident. The defendant was agreeable. He waived his Miranda rights. Officer Johnson was unaware that the defendant had previously been given his Miranda rights and had declined to speak. After first denying any knowledge of the Michelle incident, he finally admitted he was the person who had kidnaped and molested Michelle.

Deputy Johnson was aware that the defendant had been arrested for the Colton incident. He said that the defendant had better talk to Officer Nunez about that arrest, since that incident came within the jurisdiction of the Colton Police Department. The defendant said that he did not want to talk to Nunez but that he would talk to Johnson. He then confessed to the Jessica kidnaping and molestation.

The court found compliance with Miranda and that the statement was free and voluntary.


After the United States Supreme Court handed down Miranda, it became the task of other courts to implement the principles of that case as new and different factual situations developed.

In 1968, the California Supreme Court in People v. Fioritto, 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625, held that once an in-custody suspect has asserted his Miranda rights, continued questioning was forbidden even if the suspect subsequently receives and waives his Miranda rights. The court specifically did not disapprove of the use of statements voluntarily or spontaneously initiated by the suspect, citing People v. Lara, 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202; and People v. Treloar, 64 Cal.2d 141, 49 Cal.Rptr. 100, 410 P.2d 620. The so-called Fioritto rule was then followed in People v. Enriquez, 19 Cal.3d 221, 137 Cal.Rptr. 171, 561 P.2d 261; People v. Disbrow, 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272; People v. Superior Court (Zolnay), 15 Cal.3d 729, 125 Cal.Rptr. 798, 542 P.2d 1390; People v. Carr, 8 Cal.3d 287, 104 Cal.Rptr. 705, 502 P.2d 513; People v. Burton, 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793; People v. Randall, 1 Cal.3d 948, 83 Cal.Rptr. 658, 464 P.2d 114; and People v. Ireland, 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580. Then along came People v. Pettingill, supra, 21 Cal.3d 231, 145 Cal.Rptr. 861, 578 P.2d 108.

The reason for Pettingill is readily apparent. In the meantime, the United States Supreme Court had decided Michigan v. Mosley (1975), 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313, which reaffirmed Miranda, but rejected the Fioritto approach. Instead, the Supreme Court adopted a factual test turning on the circumstances of the renewed interrogation. " ' . . . the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his "right to cutoff questioning" was " scrupulously honored. " ' " (Pettingill, Supra, 21 Cal.3d 246, 145 Cal.Rptr. 870, 578 P.2d 117.)

Our Supreme Court in Pettingill declined to follow Michigan v. Mosley and reaffirmed the Fioritto principle, doing so on the basis of the state constitution over the protest of the dissent that Fioritto and its progeny had all been based on federal constitutional grounds. However, the majority decided that the "comparatively inflexible Fioritto rule" (Pettingill, Supra, fn. 12, p. 251, 145 Cal.Rptr. 861, 578 P.2d 108) was to be the rule in California.

A cursory or casual reading of Pettingill without reference to its history, to its facts and to other existing case law might lead one to conclude that the Fioritto rule is to be taken as absolutely inflexible, i. e., when any suspect has been advised of his rights concerning any offense he may not later be approached by any other officer of any other agency concerning any other offense with the intent to readmonish him and, with his permission, interrogate him. We do not so read or interpret Pettingill. Such an interpretation would have some absurd and unintentional results. As the United States Supreme Court said in Michigan v. Mosley, supra, 423 U.S. 96, at p. 102, 96 S.Ct. 321, at p. 326, 46 L.Ed.2d 313, " . . . a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests."

A blanket proscription of Any renewed questioning under Any circumstances would lead to the following absurd results.

Item: A defendant is taken into custody on a charge of robbery. He declines to waive his Miranda rights when arrested. Six days or six months or six years later, while still in custody, he kills a guard or a fellow inmate. The officers cannot initiate any questioning of the defendant concerning the killing.

Item: A defendant is arrested for vagrancy and declines to talk. While in custody probable cause develops which indicates that he is the Hillside Strangler. The officers cannot ask him if he is perchance that individual.

Item: A defendant is in custody on a minor misdemeanor. When arrested, he declines to talk. While still in custody, it develops that he is part of a conspiracy to assassinate the President of the United States. However, any inquiry into this rather interesting subject is foreclosed.

A rigid, inflexible approach to Fioritto in any of the above cases would not only be unreasonable and absurd, it would, in the language of Michigan v. Mosley, " . . . transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, . . . ." We decline to attribute to the Supreme Court of this state any such intent.

The obvious purpose of Pettingill was to divorce...

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6 cases
  • People v. Smith
    • United States
    • California Court of Appeals Court of Appeals
    • June 26, 1981
    ...(5) the circumstances under which the first warning of Miranda rights was given and the rights asserted ...." (People v. Lopez, 90 Cal.App.3d 711, 718-719, 153 Cal.Rptr. 541, and see authority there The purpose of the Fioritto rule is to prevent the police from "increasing the pressures on ......
  • People v. Smith
    • United States
    • California Court of Appeals Court of Appeals
    • April 1, 1981
    ...(5) the circumstances under which the first warning of Miranda rights was given and the rights asserted ...." (People v. Lopez, 90 Cal.App.3d 711, 718-719, 153 Cal.Rptr. 541, and see authority there The purpose of the Fioritto rule is to prevent the police from "increasing the pressures on ......
  • People v. Smith
    • United States
    • California Supreme Court
    • August 8, 1983
    ...without a difference. (Id. at pp. 995-996, 168 Cal.Rptr. 305.) 9 The sole deviation from this line of authority is People v. Lopez (1979) 90 Cal.App.3d 711, 153 Cal.Rptr. 541, a case in which the Court of Appeal held a confession admissible on facts essentially identical to those at bar. He......
  • People v. Navarez
    • United States
    • California Court of Appeals Court of Appeals
    • June 28, 1985
    ...the questioning. Both counsel argued the motion and the court held the confession admissible, relying upon People v. Lopez (1979) 90 Cal.App.3d 711, 719-720, 153 Cal.Rptr. 541. Defendant argues the court's ruling was erroneous under People v. Fioritto (1968) 68 Cal.2d 714, 68 Cal.Rptr. 817,......
  • Request a trial to view additional results

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