People v. Perrin

• Decision Date: 18 January 1967
• Docket Number: Cr. 279
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Ovide PERRIN and Michael Henry Perrin, Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 847

55 Cal.Rptr. 847

247 Cal.App.2d 838

The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Ovide PERRIN and Michael Henry Perrin, Defendants and Appellants.

Cr. 279.

Court of Appeal, Fifth District, California.

Jan. 18, 1967.

[247 Cal.App.2d 840] Robert B. Robbins, Fresno, for appellant, Donald Ovide Perrin.

Mikio Uchiyama, Fresno, for appellant, Michael Henry Perrin.

Thomas C. Lynch, Atty. Gen., and Daniel J. Kremer and Philip R. Birney, Sacramento, Deputy Attys. Gen., for respondent.

OPINION

STONE, Justice.

Defendants, Donald and Michael Perrin, brothers, each appeal from a judgment entered upon a jury verdict finding him guilty of violation of Penal Code, section 459, burglary second degree.

Defendants used a crowbar to pry open an outer locked door at the Iran Restaurant in Fresno at approximately 3 a.m. August 16, 1964. After entering, they pried open three inner locked doors to reach the bar area, where they forced a cash register and removed approximately $400. They proceeded to a storeroom-office and pried open a steel cabinet, taking approximately $1,200. They tried unsuccessfully to open a floor safe.

The Perrin brothers learned from Michael's wife, Susan, a waitress at the Iran Restaurant for two months prior to the burglary, that large sums of money were left on the premises in a locked liquor cabinet in the storeroom-office. Susan continued to work at the restaurant for approximately three weeks after the burglary was committed.

On September 19, 1964, Donald, Michael and Susan went to Phoenix, Arizona, and that night and on the 20th committed a number of burglaries. All three were taken into custody and booked at the Phoenix Police Station the following day. An officer by the name of Brady, who interrogated Donald and Michael, testified that at the outset he told each defendant he did not have to talk if he did not want to, that he had the right to have an attorney, and that anything he said could be used against him. Defendants made no request for an attorney, and talked willingly and freely.

Michael, interviewed first, talked about only the Phoenix burglaries, but Donald, who was next interviewed alone, voluntarily told Brady that he and Michael obtained $1,500 in the Iran Restaurant burglary in Fresno. Brady advised a police officer in Fresno, by telephone, that Donald Perrin had admitted a $1,500 burglary at the Iran Restaurant, and asked if such a burglary occurred. The Fresno officer confirmed the burglary, and requested a teletype report of the confessions. Armed with the information obtained from Fresno, Brady interviewed Michael and Donald together, and on this occasion Michael, as well as Donald, freely discussed the Iran burglary; both orally confessed and Michael also made a written confession. Brady testified that Michael signed the confession, but Michael, although admitting the handwriting in the body of the confession was his, denied that the signature, 'Michael H. Perrin,' at the end was his. He also disavowed his signature which appears in two other places in the body of the document, and his initials which appear in four places.

Each defendant took the witness stand and denied making any confession, but the jury resolved this conflict in the evidence against them, and understandably so. From the printed word, defendants' testimony strikes us as being decidedly unconvincing.

Defendants also interposed an objection to any testimony by officer Brady concerning their alleged confessions to the commission of the Iran burglary upon the ground that these confessions were purportedly given in the afternoon while officer Brady advised them of their constitutional rights only before the morning questioning. In determining whether it was incumbent upon the interrogating officer to readvise defendants of their constitutional rights when interrogation was resumed in the afternoon, it is unnecessary for us to decide whether this procedure, as defendants contend, violated the principles laid down by the United States Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. In Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, the Supreme Court ruled that Miranda is available only to a defendant whose trial had not begun as of June 13, 1966. Defendants' case was tried July 22, 1965. Defendants argue that, nevertheless, California courts should apply the Miranda rules retroactively.

The principles enunciated in Miranda and Johnson, including prospective application of Miranda, are controlling in the Federal courts, but they are not necessarily definitive as to state courts. Although the states may not mollify, the principles delineated in those two cases, they may apply them more stringently. The specific question before us, whether the Miranda rules shall be applied retrospectively or prospectively in a state court, appears to be unresolved by Johnson. This proposition has been considered by several California appellate courts and the upshot of each is that Miranda is not to be given retroactive application. People v. Lewis, 244 A.C.A. 370, 376--377, 53 Cal.Rptr. 108 (hearing denied); People v. Jones, 244 A.C.A. 440, 444, 52 Cal.Rptr. 924 (hearing denied); People v. Haynes, 244 A.C.A. 660, 665, 53 Cal.Rptr. 530 (hearing denied); People v. Salcido, 246 A.C.A. 512, 54 Cal.Rptr. 820.

In considering whether, aside from the requirements of Miranda, the afternoon confessions of the Fresno crime were properly admitted, we start with the fact that defendants were advised of their constitutional rights within the rationale of People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, before questioning commenced in the morning. The constitutional admonitions delineated by the Dorado line of cases are to insure that a defendant understands his constitutional rights before he is interrogated. The record reflects that defendants had this requisite understanding before each waived his right to remain silent. There is no requirement that the admonition relate to a particular question, a particular segment or interval of an interrogation, or to the discussion of a particular criminal act.

Since there is nothing in the record indicating that defendants wished to discontinue the interrogation in the afternoon or that they had changed their minds about wanting an attorney, or that their free will was overcome by persuasion or chicanery, we conclude that the admonition, admittedly sufficient for the morning questioning, carried over into the afternoon session.

In addition to the foregoing questions raised by both defendants, each makes separate assignments of error.

Michael contends that his confessions...