People v. Tremayne

Decision Date04 November 1971
Docket NumberCr. 4281
Citation20 Cal.App.3d 1006,98 Cal.Rptr. 193
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Walter Francis TREMAYNE, Defendant and Appellant.

Sonja E. Sandeman, San Francisco, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and James H. Kline, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

COUGHLIN, * Associate Justice.

Defendant was convicted of the offense of murder in the first degree; was sentenced to life imprisonment; and appeals.

His contentions on appeal all relate to alleged errors respecting the admission of evidence he claims was obtained illegally either as a product of an unlawful search and seizure, or in violation of his Miranda rights.

On November 15, 1969, defendant's wife was bludgeoned to death in a bedroom of their home in San Diego. Her body was placed in the trunk of her automobile which was driven to and parked in Long Beach. On December 20, 1969 the body was found.

On November 18, 1969 defendant had reported his wife as a missing person, 1 and in telephone conversations with a policewoman stated on the evening of November 14, 1969 he and his wife went to the home of Mr. and Mrs. Hix where they stayed until 2:00 a.m.; they went home, went to bed and slept in the same bed; and upon awakening at about 9:30 a.m., he found his wife had gone.

On December 23, 1969 the policewoman, by telephone, made an appointment with defendant to meet Long Beach and San Diego police investigators. Thereafter, on that day, Sgt. Svidal of the San Diego Police Department, in company with Sgt. Bostard and Detective Bell of the Long Beach Police Department, went to defendant's residence; were invited into the house by him; and forthwith informed defendant he was a suspect, since it was his wife who was missing. Defendant asked the police what positive identification they had the body in Long Beach was his wife. In reply he was told the description of the ring he had given the San Diego police at the time his wife disappeared matched the ring found on the body. Defendant left the room and returned with a ring which matched the ring taken from the body. At this time he was advised of his Miranda rights.

The police, with defendant's consent, conducted a search of the premises, including the house and adjacent garage, for evidence establishing the identity of the murderer. The evidence marshalled by them overwhelmingly establishes defendant was the killer.

In the course of the investigation at defendant's house on December 23rd, he gave a second version respecting the events of November 14th and 15th, stating he had a feeling his wife wanted to leave the Hix residence early, because she had a date with a woman; he went to bed in the spare bedroom and his wife went to bed in the master bedroom; he was somewhat intoxicated; after spending a short time in the spare bedroom, he went into the kitchen, picked up a bottle of liquor, walked out of the house to an area near a canyon in the vicinity where he stayed until he had consumed all of the liquor in the bottle; then he returned to the spare bedroom and went to bed; and when he awoke that morning between 9:00 and 11:00 a.m., his wife was gone.

At the close of the interview on December 23rd, defendant told the officers he did not want to discuss the matter any further. He was arrested, and placed in jail.

On December 24th, Sgt. Svidal interviewed defendant at the jail to obtain permission for members of the police laboratory staff to return to his residence and complete their investigation. Defendant consented. The testimony relating this incident is set forth hereinafter.

During the interview on December 24th, defendant complained about his treatment in the jail, and requested permission to see a doctor about his ulcers.

On December 25th, Sgt. Svidal contacted defendant in the jail to ascertain whether a doctor had seen him; received an affirmative response; and was told defendant was feeling better. At this time defendant volunteered statements of an incriminating nature, hereinafter detailed, including a third version of the events occurring on November 14th and 15th.

Defense counsel made a pretrial motion to suppress evidence, which the court denied. The propriety of this denial is not attacked on appeal.

At the trial, upon the examination of Sgt. Svidal and at the commencement of an inquiry concerning the events occurring when the officers went to defendant's residence on the evening of December 23rd, defense counsel sought and obtained permission to approach the bench where he said:

'Your honor, if the Court will recall, I made a motion under 1538.5 P.C. to suppress any evidence that was obtained at this particular entrance into the house and I based it on the fact that the defendant had not been advised of his Fourth Amendment rights pursuant to the Constitution. Now the motion was not granted, but for purposes of protecting the record and preserving that motion, I would ask that either I be permitted to voir dire the officer if he did in fact so advise the defendant or if the District Attorney would so that at this time, so I can make my motion for the record.' 2

The district attorney responded with a stipulation Sgt. Svidal did not at any time advise defendant the latter had a right to refuse to consent to a search of his premises. Thereupon, defense counsel stated:

'I will make my motion to suppress or object to the evidence at this time and may I make that just a continuing motion, your Honor, even at the time he was arrested they did not.'

Thereupon the court stated: 'The motion will be denied.'

Defendant contends the court denied his trial motion to suppress without granting him a hearing. This contention disregards the law and the facts in the premises. At trial defendant sought only to establish he had not been advised he had a right to refuse to consent to a search of his residence; obtained a stipulation effecting this purpose; and thus eliminated the need for a voir dire examination. Thereupon he made his 'motion to suppress or object to the evidence' without specifying any grounds. The failure to do so was fatal. (Thompson v. Superior Court, 262 Cal.App.2d 98, 102, 68 Cal.Rptr. 530.) However, in light of counsel's previous statement, we assume he was objecting to the evidence upon the ground it was the product of a search obtained by consent without advising defendant of his right to refuse to consent. The order of the court denying his motion and overruling his objection was a determination the ground for the motion or objection was without merit.

Defendant had made a pretrial motion to suppress pursuant to Penal Code section 1538.5. He did not have a right to renew that motion at the trial. (People v. Superior Court, 4 Cal.3d 605, 609--611, 94 Cal.Rptr. 250, 483 P.2d 1202; People v. Harrington, 2 Cal.3d 991, 997, 88 Cal.Rptr. 161, 471 P.2d 961; People v. O'Brien, 71 Cal.2d 394, 402--403, 79 Cal.Rptr. 313, 456 P.2d 969.) However, the trial court purported to act on the merits of the motion or objection in question.

On several occasions during the trial defense counsel either objected to the admission of or moved to strike evidence obtained from an examination of defendant's residence and its contents, undertaken with defendant's consent obtained without advising him of his 'Fourth Amendment rights' variously referred to as the 'right to remain free from a search' or the right to remain free from a search and seizure until 'a warrant was obtained'. In each instance the court overruled the objection or denied the motion.

Contrary to defendant's contention the action of the trial court in the premises was proper. In People v. Stark, 275 Cal.App.2d 712, 714, 80 Cal.Rptr. 307, 308, this court said:

'The rule is now established in California that warning of the right to refuse permission to search is not a requirement to obtaining a valid and effective consent to search.'

Numerous decisions are cited in support of this conclusion. The Supreme Court denied a hearing. We adhere to the opinion expressed in that case.

Defense counsel on appeal acknowledges the rule in California supports the determination by the trial court; directs attention to a contrary rule adopted by some federal courts; 3 and asks this court to overrule its former holding and apply the federal rule he advocates to the case at bench. We decline to do so. A state court is not required to follow the decisions of lower federal courts on constitutional issues. (Rohr Aircraft Corp. v. County of San Diego, 51 Cal.2d 759, 764, 336 P.2d 521.) The California rule is the proper rule. The issue at hand does not involve the waiver of a constitutional right, which may be shown only by proof the person waiving the right had knowledge of the right he waived. (Gen. see People v. Dorado, 62 Cal.2d 338, 352--353, 42 Cal.Rptr. 169, 398 P.2d 361.) To establish such a waiver it must be shown the person waiving the right either had been informed thereof at the time of the waiver or previously had acquired knowledge thereof from other sources. (People v. Dorado, supra, 62 Cal.2d 338, 352--353, 42 Cal.Rptr. 169, 398 P.2d 361.) Defendant argues, in substance, evidence obtained upon a search with consent of the accused is inadmissible, unless the person consenting was advised he might refuse to consent, for the same reason incriminating statements obtained upon interrogation of an accused are inadmissible, unless the person making the statements was advised he might remain silent. (Cf. People v. Roberts, 246 Cal.App.2d 715, 729, 55 Cal.Rptr. 62.) This argument is based upon the false premise the accused in each instance is waiving a constitutional right. Defendant's varied trial-court objections to the consensual search of his residence demonstrates the lack of an analogy between the aforesaid situations. To bring ...

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