People v. Maldonado

• Decision Date: 15 March 1966
• Docket Number: Cr. 10258
• Citation: 50 Cal.Rptr. 45,240 Cal.App.2d 812
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Oscar Janer MALDONADO and Joseph Johnson Holman, Jr., Defendants and Appellants.

Page 45

50 Cal.Rptr. 45

240 Cal.App.2d 812

The PEOPLE, Plaintiff and Respondent, v. Oscar Janer MALDONADO and Joseph Johnson Holman, Jr., Defendants and Appellants.

Cr. 10258.

District Court of Appeal, Second District Division 3, California.

March 15, 1966.

Hugh R. Manes, Los Angeles, for appellant Maldonado.

Joseph Johnson Holman, Jr., in pro. per.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for respondent.

SHINN, Presiding Justice.

Appellants Maldonado and Holman, each convicted by jury of two counts of violation of section 288a of the Penal Code, given suspended sentences and placed on probation, appeal from the orders, as judgments.

Separate briefs have been filed. Holman, having refused to accept the services of appointed counsel, prepared his own briefs.

First to be considered is the contention of both appellants that the evidence upon which they were convicted, consisting of the tstimony of police officers as to their observations through what amounted to a hidden peephole into a men's restroom of a theatre, was illegally obtained and erroneously received in evidence. This ground of appeal is untenable.

Above the lavatory of a men's restroom in a theatre there was a plumbing access hole covered by a screen. Two officers had previously obtained permission of the doorman of the theatre to enter the upper area through this hole and on the night in question they stationed themselves above the ceiling in a position to view the area of the lavatory. There was but one commode in the room; it was enclosed on three sides and had a door which stood open, and it was separated from the urinal by a partition. At the entrance of a small hallway leading from the theatre proper was a heavy curtain; at the restroom end of the hall was a fire door. The curtain was in place; the door was open. The lavatory was approximately five by nine feet. The two officers testified that from their vantage point they observed the commission of two violations of section 288a by Maldonado and Holman upon a third man, and then placed appellants under arrest. The acts were committed, not in the stall which contained the commode, but in the open area of the lavatory, and thus would have been in plain view of anyone entering the restroom.

It is contended by appellants that the facts bring the case within the principles declared in Bielicki v. Superior Court, 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288, and Britt v. Superior Court, 58 Cal.2d 469, 24 Cal.Rptr. 849, 374 P.2d 817 and that therefore the testimony of the officers was erroneously admitted. The People respond that the facts were essentially different from those in either Bielicki or Britt and that in this respect the case of appellants is indistinguishable from People v. Norton, 209 Cal.App.2d 173, 25 Cal.Rptr. 676 and People v. Young, 214 Cal.App.2d 131, 29 Cal.Rptr. 492. The difference is that in Bielicki and Britt the acts to which the observing officers testified were committed in enclosed stalls within the lavatory and were not observable except through some secret peephole such as the officers used, where as in Young and Norton, although the acts were observed by the officers surreptitiously, they were committed in areas not screened from public view. In the former cases the search was illegal, and the evidence was inadmissible; in the latter cases the evidence was admissible for the reason that the accused had waived the right to claim that the evidence was obtained illegally. Receipt of the testimony of the officers' description of the acts of Maldonado and Holman was not error. Hearings were denied in both Norton and Young, and the cases are controlling.

The criminal acts of both appellants were committed upon the person of an unidentified, young Caucasian who was described as having long blond hair. At the police station Maldonado was questioned by Officer Welsch as to why he had committed the acts in the restroom, and he testified 'Mr Maldonado stated that the blond man had enticed him, and it was almost like entrapment, that he stood there waiting for it, 'I couldn't help myself so I went down on him.''

The case was tried and the briefs were filed in the benighted pre-Escobedo-Dorado era. Upon oral argument counsel for Maldonado invoked the doctrine of those cases, contending that evidence was given of a confession by Maldonado when he had not been informed of his constitutionally protected rights to remain silent and to have legal assistance. Anticipating the contention, the Attorney General says of Maldonado's statement 'Taking the statement and circumstances all together, this phrase ('so I went down on him') has considerable impact as an admission, * * *' but 'contains too great a portion of vagueness to be a confession.' Considering the entire circumstances the statement was nothing short of a confession and could not have been considered by the jury as anything but a complete admission of guilt. There was no evidence that Maldonado was advised of his constitutional rights or that he had waived them. The receipt of the evidence, even in the absence of an objection, which would have been unavailing at the time, was error which requires reversal of the judgment against Maldonado.

Both appellants contend they were denied equal protection and due process, because of the following circumstances. The same two officers, from their same vantage point, observed conduct which caused them to arrest one Seeley and one Snyder for the same type of offense.

A complaint against Maldonado and Holman was dismissed by one Municipal Court Judge at the preliminary hearing upon the ground that the evidence of the People had been...