People v. Sam

• Citation: 454 P.2d 700,77 Cal.Rptr. 804,71 Cal.2d 194
• Decision Date: 28 May 1969
• Docket Number: Cr. 13094
• Parties: , 454 P.2d 700 The PEOPLE, Plaintiff and Respondent, v. Robert Sonny SAM, Defendant and Appellant.
• Court: United States State Supreme Court (California)

Page 804

77 Cal.Rptr. 804

71 Cal.2d 194, 454 P.2d 700

The PEOPLE, Plaintiff and Respondent, v. Robert Sonny SAM, Defendant and Appellant.

Cr. 13094.

Supreme Court of California,

In Bank.

May 28, 1969.

Richard S. Buckley, Public Defender, Richard W. Erskine, Clive Martin and James L. McCormick, Deputy Public Defenders, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., A. Barry Cappello and Lawrence Keethe, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Following a plea of not guilty to a charge of murder, defendant Robert Sonny Sam was convicted by a jury of involuntary manslaughter. He appeals that conviction.

On the evening of November 21, 1966, defendant was visiting his friend Vincent Michel, who lived in the same apartment building as defendant. He, Michel, the wife of Michel, and Jerry Martin, a friend, were talking and drinking together when Salvador Dominguez, a stranger to both Michel and defendant, walked in, somewhat disheveled. Dominguez asked for a drink and was given one, but soon he 'started to get mean.' He boasted that he was a professional karate expert and began leaping around the room in a simulated karate demonstration. When he insulted Michel's wife he was asked to leave.

Dominguez departed, but about 10 minutes later he returned and stood in the doorway calling defendant foul names and challenging him to fight. Finally defendant, who was apparently intoxicated by this time, lost his temper and chased Dominguez into the hallway. Dominguez ran into another apartment, with defendant in pursuit and Michel and Martin following: When defendant entered the apartment, Dominguez turned and assumed a karate stance with his hands up as if to strike, and leaped at defendant who threw Dominguez down and stomped his foot into the latter's stomach. Dominguez rolled over, cursing, and seemed to have the wind knocked out of him. Michel and Martin took defendant back to Michel's apartment, leaving Dominguez, apparently conscious, in the care of two men who occupied the apartment in which the altercation occurred.

The next day defendant went to check the apartment where Dominguez had been left. He found Dominguez lying on a bed, and blood over the bed and floor. Defendant immediately phoned for an ambulance, and Dominguez was taken to a hospital, where emergency surgery was performed. It was thought to be successful but Dominguez died two weeks later, apparently of injuries caused by a blunt blow or blows to the abdomen. At the trial there was medical testimony that such injuries would be 'most unusual' from only one blow and that Dominguez had been suffering from a diseased liver, which could possibly have caused a spontaneous hemorrhage.

It was not until Dominguez died two weeks after the altercation that the police began to investigate. On December 7, 1966, Police Sergeant Melendres telephoned Mr. Riley, the manager of the apartment house, and was told there had been a fight involving Dominguez, defendant, and Michel. Melendres asked Riley to call defendant or Michel to the phone. Defendant was called, and he told Melendres he had 'witnessed' a fight with Dominguez. Melendres asked him to come down to the police station to tell his story. At this time, according to his testimony, the police officer did not suspect defendant of any crime.

Defendant visited the police station, where he related a sketchy version of the incident of Melendres, without indicating that he had struck Dominguez. Defendant was not advised of his constitutional rights prior to this statement. The next day, suspicion now having focused on defendant through Melendres' subsequent conversation with Michel, defendant was again questioned at the police station. This time he was properly advised of his rights, but he volunteered a statement relating the details of the incident essentially as set out above. Defendant said he did not remember kicking Dominguez but must have done so if Michel said he did because at the time of the fight Michel was less intoxicated than he was.

At the trial, over defendant's vigorous objections, the prosecution introduced evidence of two prior acts of defendant purportedly to show his Modus operandi, or common plan or scheme. Mrs. June Mary Carmona testified that in October of 1966, while she was living with defendant, she and defendant had a drunken quarrel and defendant kicked her in the ribs. She was hospitalized, and defendant pleaded guilty to assault and battery and disturbing the peace. John Lee Tubby, a long-time friend of the defendant, was questioned about an alleged fight in January of 1965, in which defendant had kicked him. Tubby testified he did not remember the incident, because he was too drunk at the time it supposedly occurred. He also did not remember signing a police report about the fight, even after being shown the report. Officer Meraz, who had investigated the Tubby incident, then was allowed to testify over objection that he had interviewed Tubby in the back of an ambulance, that Tubby had been drinking but did not appear to him to be drunk, and that Tubby signed a police report. Meraz related the details of the report, which indicated that defendant and several others had knocked Tubby down and kicked him. This testimony was admitted as a prior inconsistent statement, both for the purpose of impeaching Tubby and as substantive evidence of the truth of the matter stated therein, under Evidence Code section 1235. Officer Meraz was cross-examined by defendant as to the report and also as to certain exculpatory statements made by defendant at the time and contained in the report.

Defendant testified in his own behalf. He denied kicking Mrs. Carmona or Tubby, and he asserted that he kicked Dominguez in self-defense when Dominguez seemed about to hit him, defendant being afraid he might be hurt by a karate blow. Louisa Vallejo, Dominguez' sister, testified that her brother had telephoned her on the Saturday evening prior to the fight, complaining he had been beaten up by 'some colored boys' and that his chest hurt and he could not breathe. She said Dominguez sounded as if he were drunk, rather than hurt. Mr. Riley, the manager, testified that defendant did not have a reputation as a vicious person.

Defendant contends the trial court erred in admitting the statements made to Sergeant Melendres and the evidence of the two prior incidents, and in refusing to give certain instructions as to self-defense and causation. We discuss the issues which require reversal, as well as those which will likely arise on retrial.

I

We begin by examining the admissibility of defendant's statements to Sergeant Melendres. As indicated, these were made on three occasions: over the telephone on December 7, at the police station the same day, and at the station on December 8. The telephone conversation is not is issue. Prior to the third conversation, defendant was properly advised of his constitutional rights to remain silent and to have counsel, but he chose to tell his story. The statements which followed were clearly admissible.

As to the initial conversation at the police station, during which defendant was given no warnings, the record is incomplete. The prosecution had the burden of proving the statements admissible. (People v. Davis (1967) 66 Cal.2d 175, 180, 57 Cal.Rptr. 130, 424 P.2d 682.) It is the position of the People that defendant was neither under arrest nor 'in custody' at the time of the first station conversation, which was merely a phase of a routine investigation, and therefore no warnings were required under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The test of 'custody' to be applied in such a situation is whether defendant was 'physically deprived of his freedom of action in any significant way or (was) led to believe, as a reasonable person, that he (was) so deprived.' (People v. Arnold (1967) 66 Cal.2d 438, 448, 58 Cal.Rptr. 115, 121, 426 P.2d 515, 521.) In Arnold the majority of this court found the question not fully answered by the record and ordered it to be decided on retrial by further evidence of the precise language used in summoning the defendant, the physical surroundings of the interview, and whatever other evidence might bear on the defendant's reasonable belief as to her freedom of action. (Id. at p. 449, 58 Cal.Rptr. 115, 426 P.2d 515.) The record here is similarly in need of further development on retrial. Fortunately, there is precedent for the trial court's guidance.

In People v. White (1968) 69 A.C. 781, 790, 72 Cal.Rptr. 873, 877, 446 P.2d 993, 997, we stated that there were no 'objective indicia of restraint or compulsion' where an officer "told (the defendant) that we had talked to several people that were down there, we were trying to determine what had happened the night before, we were taking statements from everybody concerned, and would he give us a statement. He stated that he would." This is essentially what the record shows in the instant case, although the language used is, of course, not identical. Defendant was neither a suspect nor was he apparently made to believe he was a suspect at initial contact. Certainly taking statements from witnesses who were at the scene, in and of itself, is routine police investigatory procedure and not 'in-custody interrogation.'

However, in White, the officer later learned of evidence focusing suspicion on the defendant, and thereafter 'had no intention of permitting defendant to leave' without an explanation or a confession. (Id.) This was a sufficient showing of 'in-custody interrogation' to require Miranda warnings. In the instant case the testimony indicates that defendant, who had informed the officer he had only 'witnessed' the incident, was not in fact a suspect during the first two conversations, and, indeed, he came to the station voluntarily and was at all times free to leave. It thus...