People v. Ross

• Decision Date: 06 August 1965
• Docket Number: Cr. 10461
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Henry B. ROSS and Santiago Madrid, Defendants and Appellants.

Page 41

46 Cal.Rptr. 41

236 Cal.App.2d 364

The PEOPLE of the State of California, Plaintiff and Respondent, v. Henry B. ROSS and Santiago Madrid, Defendants and Appellants.

Cr. 10461.

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

Aug. 6, 1965.

Rehearing Denied Aug. 31, 1965.

Hearing Denied Sept. 29, 1965.

Erling J. Hovden, Public Defender, Paul G. Breckenridge, Jr., and James L. McCormick, Deputy Public Defenders, for appellants.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Bradley A. Stoutt, Deputy Atty. Gen., for respondent.

LILLIE, Justice.

A jury found defendants Ross and Madrid guilty of first degree robbery (§ 211, Pen.Code) and that they were armed at the time they committed the offense. They appeal from the judgment.

Around 5:30 a. m., on May 7, 1964, Madrid walked into a Chevron service station where Thomas Daulton was working, followed by Ross who pointed a rifle (Exh. 1) at Doulton declaring, 'It's holdup; give me the key to the box' [outside by the pumps]. Daulton handed the keys to Madrid and, pursuant to Ross's command, lay face down on the floor; Madrid returned and told Ross that he had gotten all of the money out of the cash box in front (approximately $60). Defendants worked on the lower half of the safe, but were unable to open it. Ross then took Daulton's wallet out of his back pocket and removed two $2 bills which he had for 'quite a while' and which were folded in small squares; the first letter of the serial number of one (Exh. 2) was 'A' (the corner of the bill was torn off). Later, upon arrival of police Daulton gave a detailed description of defendants, what they did and how long they were there. (Daulton twice identified defendants at the police station and positively identified them at the preliminary hearing and at the trial.)

Before noon on May 7, 1964, Ross, Madrid and one Deborah Ferguson bought a 1954 Ford from W. C. West for $80; Exhibit 2 with the corner torn off comprised a part of the $80. On Friday, May 8, 1964, around 3:30 a. m., Ross and Madrid were stopped by Officer Ide because the rear license plate of the Ford was not illuminated. The officer noticed the butt of a rifle (Exh. 1) under a blanket in the rear seat and arrested them. At the Hollywood Police Station Officer Turner talked to each defendant about five minutes. On Friday, Saturday, Sunday and Monday before arraignment, the police continued to investigate the Chevron station robbery. Twice Daulton was brought to the station to identify defendants. On Monday, May 11, 1964, Officer Turner talked with them 'a couple of minutes each' at the Los Angeles Police Building. They were then placed in adjoining cells where, without their knowledge a microphone was hidden to pick up whatever conversations they might have between themselves in their cells. The conversations were monitored to another room where they were recorded and Officer Turner listened. Defendants were not advised on their right to counsel, nor were they told that their conversation would be monitored and recorded. Thus, a tape recording was made of their conversations commencing at 10:25 a. m. The recording consisted of about two hours of general conversation between the defendants. However, because it was langthy and contained much extraneous material, it was not played to the jury; instead Officer Turner, who listened to the entire conversation monitored to him in another room, testified to what he heard relative to the Chevron holdup. He also explained that this was done prior to arraignment for the purpose of obtaining additional evidence against defendants. He testified that defendant Madrid referred to the victim as 'the fat boy,' 'the little fat bay'; Ross remarked, 'We should have blew a hole in him'; Madrid answered, 'That's what I wanted to do because I was afraid somebody would get made at me. We should have blinded him.' Around 11:30 a. m., Officer Turner had Madrid brought from his cell; the officer told him that they could soon be arraigned. He asked Madrid if they had anything to say about the robbery of the Chevron station; receiving a negative reply, Officer Turner, picking the figure $240 out of the air, said 'It is my understanding you got two hundred forty dollars.' Madrid replied, 'I didn't rob anybody.' Upon Madrid's return to the cell Officer Turner heard Madrid tell Ross 'They say we got two hundred forty dollars.' Ross replied, 'No, we only got around one hundred dollars.' Madrid corrected Ross: 'No, it was ninety or eighty or something like that.' At one time Madrid said to Ross, 'I am probably more guilty than you because I held the rifle.' 'Well,' answered Ross, 'we switched it back and forth.' Ross also said, 'We stayed in town too long, and we should have got rid of the rifle.' On the afternoon of Monday, May 11, 1964, a complaint was filed and defendants were arraigned.

Neither defendant took the stand. Their defense consisted of the testimony of Deborah Ferguson that she and defendants jointly owned a car which had to be pushed so they pooled their money and paid $90 for another car; she knew the rifle was in the back seat, and it had been purchased for hunting purposes but they neither went hunting nor looked for jobs.

Appellants contend first that they were illegally detained in that they were not taken before a magistrate within the time provided by law. Under section 825, Penal Code, 'The defendant must in all cases be taken before the magistrate without unnecessary delay, and, in any event, within two days after his arrest, excluding Sundays ahd holidays; provided, however, that when the two days prescribed herein expire at a time when the court in which the magistrate is sitting is not in session, such time shall be extended to include the duration of the next regular court session on the judicial day immediately following.'

The section excludes legal holidays in the calculation of the period of time within which a defendant must be taken before a magistrate (People v. Hightower, 189 Cal.App.2d 309, 312, 11 Cal.Rptr. 198); and Saturdays are holidays in the municipal court under Government Code, section 72305. (People v. Mitchell, 209 Cal.App.2d 312, 320, 26 Cal.Rptr. 89.) The record shows that defendants were arrested around 3:30 a. m. on Friday, May 8, 1964, and arraigned in the afternoon of May 11, 1964. It will be judicially noticed that May 9, 1964, was a Saturday and May 10, 1964, a Sunday. (§ 1875, subd. 9, Code Civ.Proc.; People v. Rudolph, 28 Cal.App. 683, 685, 153 P. 721; People v. Mitchell, 209 Cal.App.2d 312, 320, 11 Cal.Rptr. 198.) Thus, defendants were taken before a magistrate and arraigned on the afternoon of the next regular court session on the second legal business day following the day of their arrest. Excluding Saturday and Sunday, the 48-hour statutory minimum would have expired at 3:30 a. m. on Tuesday, May 12, 1964; thus, defendants were brought before a magistrate 'within two days after [their] arrest, excluding Sundays and holidays.'

While the evidence shows that from May 8 through May 11 the officers were actively engaged in an investigation of the robbery, the victim was twice brought to the station to identify defendants, and, for the purpose of obtaining further evidence, the officers placed defendants in cells where their conversations could be recorded and monitored without their knowledge, the fact that the officers in the conscientious performance of their duties diligently pursued their investigation of the crime makes neither the delay in taking defendants before a magistrate unreasonable nor their lawful detention invalid.

In any event, the fact of incarceration at the time of the several admissions, or undue delay in taking a prisoner before a magistrate, does not in itself render the same inadmissible (People v. Bodkin, 196 Cal.App.2d 412, 424, 16 Cal.Rptr. 506), and while detention would be one of the factors to be considered in determining whether the statements were freely and voluntarily made (Rogers v. Superior Court, 46 Cal.2d 3, 10, 291 P.2d 929, rejecting the federal rule of McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819), there was in the court below and is here, no contention that defendants did not freely and voluntarily converse together and that the damaging statements were not freely and voluntarily made. The record reveals no behavior by law enforcement officers that overbore defendants' will to resist, nor is there any indication that their admissions were anything but 'freely self-determined.' (People v. Lopez, 60 Cal.2d 223, 247-248, 32 Cal.Rptr. 424, 384 P.2d 16; People v. Ketchel, 59 Cal.2d 503, 519, 522, 30 Cal.Rptr. 538, 381 P.2d 394; People v. Bodkin, 196 Cal.App.2d 412, 425, 16 Cal.Rptr. 506.) There was none of that conduct of law enforcement officers which involves mental or physical coercion, threats or inducement causing defendants to make their various admissions, that is condemned by our courts. (People v. Ditson, 57 Cal.2d 415, 434, 20 Cal.Rptr. 165, 369 P.2d 714; see also, Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and PEOPLE V. DORADO (1965), 62 CAL.2D 338, 42 CAL.RPTR. 169, 398 P.2D 361¹.) Moreover, appellants' contention that had they been arraigned sooner and advised of their rights they would not have voluntarily conversed with each other concerning their crime, besides being purely speculative and highly improbable, is, under the present circumstances, legally without merit. (Rogers v. Superior Court, 46 Cal.2d 3, 10, 291 P.2d 929.)

Appellants' main contention is that the conduct of the police in failing to advise them of their constitutional rights to counsel and to remain silent and monitoring their conversations with each other in their cells so that they could be heard by the officers in another room and recorded, constituted an unreasonable search and seizure.

Concerning the applicability of the exclusionary...