People v. Peters

• Decision Date: 16 February 1972
• Docket Number: Cr. 8939
• Citation: 23 Cal.App.3d 522,101 Cal.Rptr. 403
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Marshall L. PETERS, Defendant and Appellant.

Page 403

101 Cal.Rptr. 403

23 Cal.App.3d 522

PEOPLE of the State of California, Plaintiff and Respondent, v. Marshall L. PETERS, Defendant and Appellant.

Cr. 8939.

Court of Appeal, First District, Division 1, California.

Feb. 16, 1972.

Hearing Denied April 12, 1972.

Daniel E. Gibson, Oakland, for appellant (By appointment of the Court of Appeal); Marjory F. Gibson, Oakland, of counsel.

Evelle J. Younger, Atty. Gen. of the State of California, Robert R. Granucci, Gary Garfinkle, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Presiding Justice.

Defendant appeals from the judgment of conviction for conspiracy (Pen.Code, § 182) to violate Penal Code sections 459 (burglary) and 487 (grand theft), and from the order denying a new trial. ¹

Defendant contends: (1) that the court erred in overruling his counsel's objections to the introduction of illegally obtained statements; (2) that his counsel and codefendants' counsel were improperly restricted from inquiring into the homosexual relationships and activities of two accomplices who had pleaded guilty and testified for the prosecution; (3) that the court erred in admitting evidence relating to the use of narcotics; and (4) that testimony concerning shortages at all of Macy's Northern California stores should not have been admitted into evidence.

We have concluded that none of these contentions has merit and that the sole possible claim of error, consisting of the admission into evidence of testimony that defendant was in possession of a hypodermic needle and a syringe at the time of his arrest would, in any event, constitute harmless error. Accordingly, we must affirm the judgment.

The Facts

Willis Stewart, a Burns Detective Agency guard assigned to night duty at Macy's Department Store on O'Farrell Street in San Francisco (hereinafter 'Macy's'), testified as a prosecution witness that through his cooperation defendant and codefendants Donand Eagleton and Ernest Braidlow pilfered merchandise from the store on several occasions. ² Braidlow ³ testified that defendant told him of his connection with Stewart and that on one occasion he went with defendant and a man named Ron to Macy's in the early morning hours where he helped remove merchandise from the store into a car.

San Francisco Police Officer John Sully testified that he went to defendant's apartment in the early evening of September 21, 1969. Defendant and Eagleton were in the apartment. Upon entering the apartment he observed a large supply of clothes, television sets, tape recorders and similar items stacked in the room. Many of these items were marked with Macy's labels. Defendant stated to Sully that he had received an inheritance and used the money to buy merchandise from Macy's. Defendant and Eagleton were placed under arrest and the merchandise was taken into police custody.

Employees at Macy's testified that from July to September 1969, defendant returned substantial amounts of Macy's merchandise and sought cash refunds. Three pawn brokers testified that defendant pawned merchandise shown to have originated at Macy's.

Police Inspector Osuna testified concerning three interviews with defendant, the nature of which, and the circumstances under which they were taken, will be hereinafter discussed.

Defendant testified that he merely took food to Stewart while the latter was on duty at Macy's; that both Stewart and Eagleton were like sons to him and that Stewart became jealous of Eagleton; that the merchandise found in his apartment was being stored for Stewart; and that he sought refunds from Macy's because a heart condition had forced him to lose weight and he needed smaller sizes. He denied participation in or discussion of taking any property from Macy's.

Other pertinent facts will be hereinafter discussed in connection with the particular contentions made by defendant.

The Statements

The record discloses that counsel for defendant indicated to the court that he was concerned with the question whether Osuna had admonished defendant as to his constitutional rights prior to his interviews with defendant. Accordingly, defense counsel requested a Voir dire of Osuna on this issue. At the inception of the Voir dire ⁴ defendant's counsel specifically indicated that the issue was 'limited as to his admonition.'

On Voir dire Osuna testified that on September 22, 1969, the day after defendant was arrested, Osuna and Inspector Pedrini interviewed him at the county jail. Osuna testified that he read a card detailing defendant's rights. The printed material stated that defendant had a right to remain silent; that anything he said could and would be used against him in a court of law; that he had a right to talk to a lawyer and to have him present while he was being questioned; and that if he couldn't afford a lawyer one would be appointed to represent him before any questioning, if he wished one. ⁵ Defendant stated that he understood his right but refused to sign a card indicating that he waived such rights. According to Osuna, he asked defendant if he was willing to answer questions in the light of the warnings that had been given. Defendant indicated that he was willing to answer questions.

Osuna testified further on Voir dire that on September 23, at 6:00 p.m., he went to the jail for the purpose of interviewing Stewart. He observed defendant standing near some telephones in a hallway. They exchanged greetings and defendant started to talk to him. Osuna asked defendant if he wanted to talk to him. Defendant stated that he did. Osuna then advised defendant of his constitutional rights, and defendant stated that he understood them. Osuna did not recall whether he asked defendant to sign the waiver card.

Osuna then testified on Voir dire that he interviewed defendant a third time on September 25. At that time defendant was out on bail. According to Osuna, defendant called Inspector Pedrini and said that he wanted to talk with Pedrini and Osuna. When defendant arrived, he was again advised of his rights and said that he understood them. Osuna did not ask defendant to sign the waiver card on this occasion.

Inspector Pedrini testified on the Voir dire that he was present at the first and third interviews, that on each of these occasions defendant was advised by Osuna of his constitutional rights, that defendant stated he understood them, and that he then gave a statement to Osuna.

Defendant took the stand at the Voir dire hearing and testified that he was not advised of his rights on any of the occasions testified to by Osuna and Pedrini and that he at no time made any statement to them. Defendant denied that he approached Osuna on September 23. Concerning the third interview, he testified that he merely called Pedrini to ask for help in getting his clothes from the jail. Defendant stated that at Pedrini's suggestion he came to the police station, and when he got there 'he was ushered into the interrogation room by Inspector Osuna.'

At the conclusion of the Voir dire hearing defendant's counsel made no specific objection but merely stated that the prosecution had 'not sustained the burden of showing there was, in fact, an admonition.' The court, upon submission of the matter, and under its prerogative to resolve the conflicts in the evidence, found that defendant was properly admonished.

Following the Voir dire hearing Osuna took the stand as a prosecution witness. He testified that at the first interview on September 22 defendant's 'first statement was he does not desire to talk, to talk about the case.' In reply to the district attorney's inquiry 'And what happened next?', Osuna stated he 'asked him a few other questions and we talked back and forth, * * *' Pursuant to this questioning, defendant gave personal information concerning his birth, lack of military service, and welfare status. Defendant stated that certain checks which had been found in his room had been there when he rented the room, and that all of the other property found in his room belonged to him. He stated that he had bought such property more than a year earlier from Macy's, The Emporium, and a friend, and that he purchased it with cash which he had obtained when his mother died and left him an inheritance. He could not explain why labels had been removed from some of the clothing. When asked about merchandise returned to Macy's defendant did not answer. However, he did deny that he ever used the name Marshall Peters.

On the occasion of the second interview on September 23, Osuna testified that defendant stated his true name was Marshall Lee Peters, and provided other personal information. He did not answer when asked whether he had gone into Macy's with a truck. Instead, he said he had gone to the store and had been allowed in by Stewart. He went into Macy's by himself four or five times and obtained hi-fi equipment and clothing, which he sold to a man named Rose for approximately $1,400 and some 'speed.' He said that he went into Macy's on Friday nights. He described his friendship with Stewart. When asked why he used the name Szurek, he said he had been in trouble and consequently had decided to use an alias.

Osuna testified that on the third interview on September 25, defendant at that time gave him three pawn tickets and stated that he had also pawned merchandise under the name of Dill. Osuna also stated that the property which had been pawned was retrieved from the pawnbroker and was subsequently determined to have come from Macy's.

The People concede that when defendant declined to sign the waiver card and stated that he did not desire to talk about the case Osuna was obligated to terminate the interrogation. They also concede that the subsequent interviews were not independent of Osuna's first interrogation in which defendant stated that he did not want to discuss the case. In essence, the People thereby concede that there was Fioritto error. In People v. Fioritto, 68 Cal.2d 714, 68...