People v. West

• Citation: 253 Cal.App.2d 348,61 Cal.Rptr. 216
• Decision Date: 08 August 1967
• Docket Number: Cr. 1591
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. James Alfred WEST, Defendant and Appellant.

Page 216

61 Cal.Rptr. 216

253 Cal.App.2d 348

PEOPLE of the State of California, Plaintiff and Respondent, v. James Alfred WEST, Defendant and Appellant.

Cr. 1591.

Court of Appeal, Fourth District, Division 2, California.

Aug. 8, 1967.

Rehearing Denied Sept. 6, 1967.

Hearing Denied Oct. 5, 1967.

[253 Cal.App.2d 350] William A. Doherty, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Richard G. Huffman, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

KERRIGAN, Associate Justice.

Defendant was charged by information with the crimes of robbery (Pen.Code, § 211) and auto theft (Veh.Code, § 10851), with two prior felony convictions. He was found guilty of first degree robbery and auto theft, and the jury further found the allegations as to the two prior convictions to be true. Defendant was sentenced to state prison, and the sentences thus imposed were ordered to run consecutively as to each count.

Defendant, through his trial counsel, filed a timely notice of appeal on March 13, 1961. On August 9, 1961, the clerk of this court advised defendant's counsel that unless an opening brief was filed within thirty days thereafter that the appeal would be dismissed pursuant to the provisions of Rule 17(a) of Rules of Appeal. On October 2, 1961, the appeal was dismissed for failure of appellant's counsel to file an opening brief within the time prescribed. In February 1965 defendant submitted, In propria persona, a petition for recall of the remittitur, and the California Supreme Court ordered recall of the remittitur, thus reinstating this appeal from the judgment.

On September 29, 1960, between 7:30--8:00 p.m., two men robbed Patton's Market in Fullerton, California, and escaped with $690.00. Both men wore disguises consisting of sunglasses, baseball caps, band-aids on their noses and chins, and facial makeup. One bandit utilized a small silver or chrome-plated gun in the theft and was physically described as being 5 10 tall and weighing approximately 168 pounds. The second bandit was 6 feet in height and weighed approximately 165 pounds. One of the robbers was attired in a white shirt.

On the same day a bank official's car was stolen from a Fullerton bank parking lot, and this 1953 Chevrolet convertible was found the following day by the Fullerton police authorities. A baseball cap was discovered in the rear seat of the vehicle. A latent fingerprint was found in the stolen car, which was later identified as that of an ex-convict with whom the defendant was living at the time of his arrest. Further investigation resulted in the finding of a rubber glove worn by one of the robbers some 60 feet distant from where the car was located.

Defendant was a parolee, having been released from state prison only 1 1/2 months prior to the Fullerton robbery and auto theft. His parole officer was informed that a robbery had been committed in a Fullerton market by a person whose description resembled that of the defendant. The parole officer was further aware that although the defendant was unemployed, he was spending sizeable sums of money for clothing and living expenses. The officer further knew that defendant was living and associating with an ex-convict, one Roger Flippen, in violation of his parole conditions. The parole agent relayed the information concerning the possible resemblance between the defendant and the market robber to the Fullerton police authorities. Subsequently, on a visit to defendant's residence, the parole agent persuaded the landlady to permit him to conduct a search of defendant's room. The parole officer did not have a search warrant. In the process of the search, the officer discovered a white shirt with pancake makeup on the collar and some used band-aids with no blood or skin on them. These findings were immediately reported to the Fullerton police, who had previously taken the baseball cap found in the stolen car to the home of the defendant's landlady. The landlady had informed the Fullerton authorities when they visited her residence that the cap looked similar to one that had belonged to her deceased son.

In the early morning hours of October 21, 1960, the defendant was arrested, and at the time of his arrest he spontaneously inquired as to whether the officers intended to talk to him about the market robbery. After being booked and briefly interrogated, he was allowed to sleep for several hours and then questioned in mid-morning for a period of an hour. He denied any implication in the robbery. Later in the day he voluntarily took a polygraph test, the results of which tended to indicate defendant's guilt, but were inconclusive because defendant had coughed periodically during the examination. Later the same day, at approximately 7:00 p.m., the defendant was again interrogated and made an oral statement concerning his involvement in another market robbery at Anaheim, California, and later confessed to the Fullerton robbery and the auto theft here involved.

The following Monday, October 24, 1960, the defendant was further interrogated, and a statement was prepared for his signature, wherein he confessed to the commission of both crimes. The stenographer, in preparing the written statement, inserted the following language in the document before it was signed by defendant: 'I, James Alfred West, voluntarily make the following signed statement to Sergeant Smith and Officer Avaloz; I make this statement in the absence of any threat or promises; I have been advised I do not have to make any statement and any such statement I now make may be used against me in court; I have also been advised of my right to have an attorney.'

Notwithstanding the foregoing declarations, there is no evidence that the defendant was ever advised of his constitutional rights to counsel or to remain silent before his verbal confession of October 21, 1960, or prior to making his verbal and signed confessions of October 24, 1960. During the course of the trial, one of the interrogating officers was permitted to testify to the following effect on direct examination conducted by the prosecution: That he arrested the defendant about 12:30 a.m. on October 21, 1960, in Anaheim; that he took the defendant to the Fullerton police station, booked him, and placed him in a cell; that at 10:00 a.m. the same morning, he conversed with the defendant with another detective present, and no promises of immunity nor threats were made; that the interrogation lasted one hour, and the defendant denied any involvement in the robbery; that again, at approximately 7:00 p.m. of the same day, the defendant was interrogated; that five officers were present; that no promises nor threats were made; that initially the defendant again maintained his innocence; that the defendant was informed that he should not confess to anything that he did not do, but that he should tell the truth; that during this interrogation, the defendant confessed to the robbery of the Anaheim market and admitted that at the time of the latter offense he was wearing a baseball cap, sunglasses, and armed with a nickel-plated revolver; that the defendant then confessed ot the robbery of Patton's Market, Fullerton, California, and further acknowledged that he had utilized a stolen car in the commission of the Fullerton robbery; that following the confession, the defendant indicated that he did not wish to involve his roommate, Roger Flippen, in the robberies, and requested that no charges be filed against the accomplice; that subsequent to the defendant's oral confession, his oral statement was reduced to typewritten form, but the typed statement was not signed until the following Monday.

The record discloses that at this point in the direct examination of the officer the prosecutor was in the act of presenting the defendant's signed confession to the officer for foundational purposes when defense counsel requested permission to conduct a Voir dire examination of the officer for the purpose of determining the voluntary or involuntary nature of the defendant's extrajudicial statement. The court then indicated that defense counsel could interrogate the officer on cross-examination relative to such issue, and permitted the prosecutor to proceed with his direct examination.

The officer then testified, in the course of his continued direct examination, to the effect that the defendant's statement was signed by him on Monday morning, October 24, 1960, and that no threats nor promises were made to the defendant for the purpose of securing his signature on the document.

Defense counsel then objected to the admission of the signed confession, but the objection was overruled. It should also be noted that defense counsel made a motion to strike the testimony of the interrogating officer relative to the defendant's oral and written confessions, which motion was submitted after the defendant had testified that he was not allowed to read the confession before signing it, and that the confession was signed by him solely on the condition that Roger Flippen would not be charged with the Fullerton robbery. The motion to strike was denied.

Defendant's testimony during the trial may be summarized in the following manner: That he did not read the typewritten confession before signing it; that he agreed to sign the confession because he thought he would be sent back to prison anyway; that he did not want Roger Flippen implicated in the robbery charge, and therefore signed the prepared statement on the condition that Roger would not be charged with robbery; that he had a white shirt similar to the one found in his room; that he owned a khaki jacket and pants similar to those described by the robbery victim; that he shared an apartment with Roger, an ex-convict; that he could not explain the source of funds which enabled him to move from the room where the shirt and band-aids were found into another apartment, nor where he obtained...