People v. Rand

• Decision Date: 23 April 1962
• Docket Number: Cr. 7892
• Citation: 21 Cal.Rptr. 89,202 Cal.App.2d 668
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Sidney Gene RAND, Defendant and Appellant.

Page 89

21 Cal.Rptr. 89

202 Cal.App.2d 668

The PEOPLE, Plaintiff and Respondent, v. Sidney Gene RAND, Defendant and Appellant.

Cr. 7892.

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

April 23, 1962.

Rehearing Denied May 16, 1962.

Hearing Denied June 20, 1962.

Harry E. Weiss, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., and S. Clark Moore, Deputy Atty. Gen., for respondent.

FORD, Justice.

By an information the defendant was accused of the crime of possession of marijuana in violation of section 11530 of the Health and Safety Code. He waived his right to trial by jury. It was stipulated that the case would be submitted on the evidence received at the time of the preliminary hearing, with the right reserved to the People and the defendant to offer additional evidence. The defendant was found guilty as charged. He has appealed from the judgment.

While the defendant presents a number of contentions, it is only necessary to discuss one since it is determinative of this appeal. That contention is that the court erred in receiving in evidence a statement made by the defendant at the place of his arrest because such statement was not voluntary.

Only two witnesses testified, Deputy Sheriff Tizenor and the defendant. By stipulation, the necessity for the testimony of a forensic chemist as to the narcotic nature of the articles hereinafter mentioned was dispensed with. A re sume of the pertinent testimony will be given.

On May 24, 1960, Officer Tizenor, together with four other officers, had the apartment building where the defendant resided under observation for about two hours. During that time he saw about twenty-five or thirty persons enter the defendant's apartment, each remaining for a short period of time and then leaving. The officers had no search warrant and no warrant for the arrest of anyone. After such surveillance, Officer Tizenor knocked on the defendant's door. The defendant opened the door. Thereupon the officer displayed his identification card and badge and stated that he was a police officer and would like to talk to the defendant. The latter 'stepped back from the door, pulled the door wide open, and stated, 'Come in." The officer entered the room and observed what appeared to be a portion of a marijuana cigarette in an ash tray. The defendant was then placed under arrest and the bedroom of the apartment was searched. In a jewel box on a stand next to the bed was found a cigarette package containing 'thirty-five brown paper-wrapped cigarettes, which appeared to be marijuana.' In the presence of several of the other officers the witness asked the defendant if all of the cigarettes belonged to him and the defendant said that they did. Later, at the Firestone Sheriff's Station, the defendant made substantially the same statement.

With respect to the statement made by the defendant in the apartment, on cross-examination Officer Tizenor testified in part as follows: 'Q. Now prior to the time that you had a conversation with him, you said you were going to arrest his wife and take his children down and put them in juvenile, didn't you? A. I possibly made that statement, yes, sir. Q. Did you make that statement? A. I don't recall whether I did or not. * * * Q. Now you had a conversation with the defendant at the apartment where he told you that all the cigarettes belonged to him, is that right? A. Yes, sir. Q. Now just prior to the time that he made that statement, did you tell him you were going to arrest his wife? A. Possibly I did. I don't recall for sure. Q. Let me ask you this. Did you tell him that you were going to lock his children up in Juvenile Hall? A. If we took his wife, that's what we'd have had to do. Q. Did you tell him you were going to lock his children up in Juvenile Hall? A. I already stated possibly I told him that. I don't recall. * * * Q. Let me ask you this. Didn't you tell him, the defendant, that if he didn't admit that those cigarettes belonged to him that then they must belong to everybody in the family and you are going to take his wife and his children and lock them up also unless he admitted they were his? Did you tell his [sic] this? A. I can't answer that Yes or No. I will explain it if you'd like. Q. Go ahead. A. As I recall, I made the statement to the defendant that if the cigarettes--if he did not know who they belonged to, that we did not know and therefore we would have to take him, his wife to jail. A. [Q.] And his children? Q. [A.] Well, his children would be taken care of by the proper authorities. Q. You told him they'd go to juvenile, didn't you? A. Possibly I did. That's where they would go, anyway. Q. Now after you made this statement to him, then, as a matter of fact, didn't he say to you, 'Well, this is my house and everything in here is mine, so these cigarettes must be mine, too,' isn't this what he said? A. Recalling exactly what the defendant stated in his conversation, was that everything in the house belonged to him. He further stated that--I asked him, 'Well, that is not saying anything about the particular cigarettes.' He then stated that the cigarettes were his. Sergeant Caraway, in my presence, stated to the defendant, 'You are not saying this just to let your wife stay here, are you?' And he stated No. And he asked him that same question about four different ways and about four different times, and the defendant stated that he was stating they were his because they were his. Q. And because everything in the house was his, isn't that what he stated each time? A. No, sir. Q. * * * After you found these cigarettes, you showed them to him, didn't you? A. He was there when we found them, yes, sir. Q. You showed them to him, didn't you? A. Yes, sir, I imagine he saw them. Q. Well, let me ask you this, officer, so you won't have to imagine. You held them out in front of him, didn't you? A. I did not, no, sir. Q. Did anyone hold them out in front of him? A. I observed Sergeant Caraway to point to the cigarette package prior to it being removed from the box and ask the defendant, 'What is that?' Q. At that point he said he didn't know, didn't he? A. That's right. * * * Q. * * * He, at first, said he didn't know what these cigarettes were, didn't he? A. Yes, sir. Q. And he, at first, said they weren't his, isn't that right? A. No, sir. Q. Did you ask him--at the time that he stated he didn't know what they were, did you ask him if they were his at that time? A. Yes. Q. What did he say? A. He stated he didn't know anything about them. * * * Q. * * * Did you tell him, sir, that the children would have to go to juvenile authorities or be taken care of by juvenile authorities? * * * THE WITNESS. As I state, I don't recall saying that. I possibly did. That would be the method of operation, the procedure. THE COURT: Let me ask you this. Would it be a fair statement to say that the defendant told you he didn't know anything about these cigarettes that you found, this thirty-five in this package, until after he had said that everything in the place is mine; and was it after you had said that if they weren't his and they weren't yours, that you would have to take the defendant and his wife to jail? Was it after that statement made by you that he said, 'Well, they are mine,' or something to that effect? Is that what you are trying to find out? MR. RUSSELL [attorney for the defendant]: Yes, your Honor. THE WITNESS: I'd say that was a fair statement of what happened, yes, sir.'

At the trial the defendant's testimony as to his conversation with one of the officers was in part as follows: 'He said, 'I guess we will have to take you and your wife and your children down.' He said, 'Unless you tell me it is yours, we will put your wife and the children in the hands of the authorities.' He said, 'Is it yours?' I said, 'It is mine.' Q. Was the contraband in fact, yours? A. No.'

During the course of the argument after the evidence had been received at the trial, the defendant's attorney stated as follows: '* * * may I simply point out that the officer's testimony in the transcript corroborates the testimony given by the defendant as to whether or not his wife and children would be taken in, and I think this goes to support the defendant's contention that the admission was not freely and voluntarily given, * * *' ¹ The trial judge made no express ruling as to the admissibility of the defendant's statement but stated in substance that he did not entertain any doubt as to the defendant's guilt with respect to the thirty-five cigarettes.

In People v. Atchley, 53 Cal.2d 160, at page 170, 346 P.2d 764, at page 769, the Supreme Court stated: 'Involuntary confessions are excluded because they are untrustworthy, because it offends 'the community's sense of fair play and decency' to convict a defendant by evidence extorted from him, and because exclusion serves to discourage the use of physical brutality and other undue pressures in questioning those suspected of crime. People v. Berve, 51 Cal.2d 286, 290, 293, 332 P.2d 97; see Watts v. Indiana, 338 U.S. 49, 54, 69 S.Ct. 1347, [1357] 93 L.Ed. 1801; Lyons v. Oklahoma, 322 U.S. 596, 605, 64 S.Ct. 1208, 88 L.Ed. 1481. All these reasons for excluding involuntary confessions apply to involuntary admissions as well. See Opper v. United States, 348 U.S. 84, 90-92, 75 S.Ct. 158, 99 L.Ed. 101; Falknor, The Hearsay Rule and Its Exceptions, 2 U.C.L.A. L.Rev. 43, 68. Accordingly, any statement by an accused relative to the offense charged is inadmissible against him if made involuntarily.'

Before the statement of the defendant was admissible, the prosecution had to sustain its burden of proof that it was voluntary. (People v. Berve, 51 Cal.2d 286, 291, 332 P.2d 97; People v. Speaks, 156 Cal.App.2d 25, 36, 319 P.2d 709.) 'The requirement that a confession be voluntary is one of public policy, and it is a fundamental right of the defendant, denial of which is a violation of due process.' (People...