People v. Nunez

• Decision Date: 15 May 1970
• Docket Number: Cr. 5228
• Citation: 7 Cal.App.3d 655,86 Cal.Rptr. 707
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph NUNEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 707

86 Cal.Rptr. 707

7 Cal.App.3d 655

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph NUNEZ, Defendant and Appellant.

Cr. 5228.

Court of Appeal, Third District, California.

May 15, 1970.

Thomas C. Lynch, Atty. Gen., by James T. McNally and A. Wells Petersen, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

J. Joseph Childers, Sacramento, for defendant and appellant.

JANES, Associate Justice.

Defendant appeals from the judgment entered on a jury verdict finding him guilty of the first degree burglary of a telephone booth. ¹ The information originally charged defendant with an additional count of burglary of the telephone booth by use of explosives (Pen.Code, § 464). Before impanelment of a jury, the explosives count was dismissed on the motion of the People after the prosecutor told the court the evidence would show a burglary of a telephone booth by use of a hand gun.

The contentions raised on appeal are: (1) Under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the evidence was insufficient to show that, before he was interrogated by the police, defendant knowingly and intelligently waived his constitutional right to remain silent; (2) the court's instructions on first degree burglary were prejudicially erroneous; and (3) defendant was denied procedural due process because the count of the information upon which he was convicted charged burglary in general terms without specifying the acts and classifications of first degree burglary. We have concluded that defendant's contentions cannot be sustained. Accordingly, the judgment will be affirmed.

Facts

On the evening of August 19, 1968, defendant telephoned a friend, Clyde Titman, and made arrangements to borrow Titman's car for the evening. At approximately 4:35 a.m. on August 20, a truck driver saw defendant and a woman inside a pay telephone booth on the premises of a closed but well illuminated service station in Sacramento County. The truck driver heard the rattling of coins and observed defendant tugging at the interior of a booth. When defendant saw the truck driver, he stepped from the telephone booth, carrying a cloth object. Accompanied by the woman, he drove away in a vehicle later identified at Titman's. The truck driver followed defendant, noted the license number of the car, and reported a telephone theft to the telephone company operator.

The investigating police officer found parts of the telephone scattered about the booth, including the faceplate from the coin box. In the lower center of the faceplate was a hole, about 3/8 inch in diameter. The officer detected a strong odor of burned gunpowder in the booth, and there was burned powder around the hole on the faceplate. Cotton fibers and metallic debris were found on the telephone and on the inside of the booth glass, and fibers and debris of similar types were found in the Titman vehicle. The same kind of physical and olfactory evidence was found in another telephone booth, about a block away, that had been burglarized in the same manner that morning.

Defendant was apprehended on August 21 while he was riding with Titman in the latter's car accompanied by two women, one of whom ('Elaine') was identified by the truck driver during trial as defendant's companion in the telephone booth on the morning of the burglary. After the arrest, the truck driver picked defendant out in a police lineup. At trial, defendant testified that he was 'nowhere near' the scene of the crime the evening of August 19 or the morning of August 20.

The Miranda Waiver Issue

The following facts were developed, on Voir dire, out of the presence of the jury: At 8:40 a.m. on August 21, after his arrest earlier that day, defendant was interrogated by Sergeant Clark of the Sacramento Police Department. Defendant appeared to be alert and to understand what he was doing and what he was being told. Sergeant Clark orally gave him all the warnings required by Miranda and then specifically asked defendant if he understood the advice given. Defendant stated that he understood those rights.

The officer then inquired whether, having those rights in mind, defendant wished to speak to him. According to the sergeant's testimony, defendant answered 'that he understood his rights, and we (Clark and a fellow officer) then gave him a copy of our waiver form. And, after explaining this to him, he refused to sign, but stated that he would give a statement to us.' Sergeant Clark recapitulated that, when 'we asked him if he was willing to sign the waiver,' defendant's reply--all in one sentence--was 'I'll talk to you, but I will not sign the waiver.' The waiver form itself was not placed in evidence, nor was any evidence received as to the explanation which Clark gave defendant about that form.

Sergeant Clark then proceeded to question defendant and obtained a statement from him. Over defense counsel's objection that 'defendant indicated he desired not to talk, by refusing to sign the waiver form,' the statement was ruled admissible by the court, which found that defendant had refused to sign the waiver after being fully informed of his Miranda rights 'but he consented to talk to the officer, and he did so intelligently.'

When the jury was recalled, the officer testified as to answers given by defendant to questions put to him during the interrogation concerning where and with whom he lived and where he had spent the hours of August 20 subsequent to the burglary that day. At no time during the interrogation had defendant admitted any connection with the burglary, but he did make statements, related by the officer before the jury, which seriously affected his credibility, as well as his trial testimony relative to the defense of alibi. The statements were contradictive, also, of the testimony of defendant's alibi witness ('Martha').

Defendant, in charging violation of his Fifth Amendment right, contends that the damaging statement was taken from him after he expressed a desire to invoke his constitutional right to remain silent and that, when he refused to sign the waiver of rights, form, it became incumbent upon the officer to inform him that if he did give a statement, he would waive his right to remain silent notwithstanding his refusal to sign the waiver form.

Several well established principles guide us in the consideration of defendant's contentions. The first is that courts indulge every reasonable presumption against waiver of fundamental constitutional rights. (Johnson v. Zerbst (1937) 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; People v. Carter (1967) 66 Cal.2d 666, 669--670, 58 Cal.Rptr. 614, 427 P.2d 214.) The People have the burden of proving a defendant's knowledge of his rights and his intelligent understanding thereof (see, People v. Johnson (1969) 70 Cal.2d 469, 477, 74 Cal.Rptr. 889, 450 P.2d 265), and high standards of proof are required to establish that the defendant had such knowledge and understanding or that he otherwise waived those rights (People v. Brooks (1966) 64 Cal.2d 130, 137, 48 Cal.Rptr. 879, 410 P.2d 383). The issue of waiver, however, is to be resolved upon the entire record. (People v. Lara (1967) 67 Cal.2d 365, 376, 62 Cal.Rptr. 586, 432 P.2d 202.)

Miranda, of course, 'does not require a written waiver, but only a waiver made 'voluntarily, knowingly and intelligently. " (Klingler v. United States (8th Cir. 1969) 409 F.2d 299, 308; see, People v. Hansard (1966) 245 Cal.App.2d 691, 697, 53 Cal.Rptr. 918.) In Miranda itself the federal Supreme Court emphasized that '(v)olunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.' (384 U.S. at p. 478, 86 S.Ct. at p. 1630.)

In the case at bench defendant, after the Miranda warning, expressly stated that with a full understanding of the constitutional rights available to him, he would talk to Sergeant Clark. The only indication advanced that he did not knowingly and intelligently waive those rights was his declination to sign the waiver form. It is noteworthy that defendant, although he elected to testify, made no attempt to contradict the testimony of Sergeant Clark or to point out any lack of understanding on defendant's part as to the effect of talking to the officer while declining to waive his rights in writing.

Cases cited by defendant (Brookhart v. Janis (1966) 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314; United States v. Slaughter (4 Cir., 1966) 366 F.2d 833) are distinguishable on their facts. A more appropriate comparison is furnished by Klingler v. United States, supra, 409 F.2d 299, in which the court stated, at page 308: 'In this case, Klingler was advised both orally and in writing of his constitutional rights. He stated that he understood his rights and he selectively answered (the interrogation officer's) questions. Klingler's refusal to sign the written waiver form without the presence of counsel is not fatal; Miranda does not require a written waiver, but only a waiver made 'voluntarily, knowingly and intelligently'. * * * We believe that Klingler 'voluntarily, knowingly and intelligently' waived his right to counsel with regard to the admissions in question. That Klingler chose of his own free will to speak without the assistance of counsel should give him no cause for complaint.'

Our own Supreme Court basically reiterated this concept in People v. Johnson (1969) 70 Cal.2d 541; at page 558, 75 Cal.Rptr. 401, at page 412, 450 P.2d 865 at page 876: 'Once the defendant has been informed of his rights and indicates that he understands those rights, it would seem that his choosing to speak and not requesting a lawyer is sufficient evidence that he knows of his rights and chooses not to exercise them.' (See, also, People v. Lantz (1968) 265 Cal.App.2d 5, 7--9, 71 Cal.Rptr. 188.)

We agree with the finding by the trial judge that although defendant refused to sign the waiver, he did not...