Rinegold, In re

• Decision Date: 22 December 1970
• Docket Number: No. 9136,9136
• Citation: 92 Cal.Rptr. 18,13 Cal.App.3d 723
• Court: California Court of Appeals Court of Appeals
• Parties: In re Jerry RINEGOLD on Habeas Corpus.

Page 18

92 Cal.Rptr. 18

13 Cal.App.3d 723

In re Jerry RINEGOLD on Habeas Corpus.

No. 9136.

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

Dec. 22, 1970.

Hearing Denied Feb. 17, 1971.

C. Randall Schneider, San Jose, for petitioner.

TAYLOR, Associate Justice.

Simultaneously with the direct appeal (People v. Rinegold, Cal.App., 92 Cal.Rptr. 12) from the merits of a judgment of conviction entered on a jury verdict finding him guilty of assault with a deadly weapon (Pen.Code, § 245), this court has been directed to consider a petition for writ of habeas corpus subsequently filed. ¹ Although we have concluded that there are insufficient grounds for the relief requested, the petition presents a question of first impression as to the application of Pineda v. Craven (9 Cir.1970) 424 F.2d 369.

Petitioner contends that his confinement is unlawful as certain evidence obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, was admitted without objection from defense counsel. Because of the failure to object, petitioner was precluded from raising the Miranda issue on appeal (In re Dennis M., 70 Cal.2d 444, 75 Cal.Rptr. 1, 450 P.2d 296; People v. Huddleston, 275 Cal.App.2d 859, 80 Cal.Rptr. 496; People v. Duty, 269 Cal.App.2d 97, 105, 74 Cal.Rptr. 606). Also, the documentary basis of his contentions, the affidavit executed by his trial counsel on April 9, 1970, was a matter outside the record that could not be considered on the direct appeal from the judgment (People v. Gardner, 71 Cal.2d 843, 79 Cal.Rptr. 743, 457 P.2d 575).

Habeas corpus is the proper remedy for a collateral attack on constitutional grounds when there is no opportunity to raise the constitutional issue on appeal (In re Spencer, 63 Cal.2d 400, 406, 46 Cal.Rptr. 753, 406 P.2d 33; In re Varnum, 63 Cal.2d 629, 47 Cal.Rptr. 769, 408 P.2d 97), although in the absence of special circumstances, habeas corpus cannot serve as a substitute for appeal (In re Tedwell, 251 Cal.App.2d 369, 373, 59 Cal.Rptr. 305). To reach the questions presented, we assume, for the purposes of discussion, that the remedy is appropriate, even though here, unlike Spencer, Varnum and Tedwell, supra, petitioner had the opportunity to raise the constitutional issue at trial and on appeal by making a proper and timely objection.

The facts as revealed by the record in People v. Rinegold, Cal.App., 92 Cal.Rptr. 12, are as follows: Two days after the assault, Captain Howard of the Mendocino Sheriff's Department, interviewed petitioner, who was in custody in the Sonoma County Jail, on another matter. Captain Howard and his fellow officer advised petitioner of his Miranda rights and indicated that they were investigating a case involving an assault with a deadly weapon. Petitioner replied that they were trying to trick him and were 'after more than that.' Petitioner would not reply as to whether he understood his constitutional rights and refused to sign a written waiver. ²

Petitioner repeatedly asked the officers whether they were investigating only an assault and accused the officers of trying to trick him. Petitioner then more or less blurted out, 'What would happen if a man were shot with a .357 Magnum?' and indicating with his hands an area about 10 inches in diameter, and continued: 'Wouldn't it make a hole?' Petitioner also asked: 'Is Bud still alive?' Neither Captain Howard nor his companion had said anything about a .357 Magnum or mentioned the name of the victim. The interrogation took place in the visitors' room and was terminated in about 19 minutes when petitioner indicated he did not want to talk any further.

The rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, that a person taken into custody must, before being subjected to questioning, be given warnings about his Fifth and Sixth Amendment rights, applies to a person who is in custody for an offense entirely separate from the one under investigation (Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381).

We turn first to the question of whether the record reveals a violation of petitioner's Miranda rights. Petitioner, relying on People v. Fioritto, 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625, contends that his admissions to Captain Howard should have been excluded. In Fioritto, after defendant was brought into the police station, he was advised of his Miranda rights and was asked to sign a waiver. When he refused, he was immediately confronted with two accomplices who had confessed, whereupon, he waived his rights and confessed to the crime. Our Supreme Court reversed, stating that the initial refusal was a sufficient indication of his wish to invoke the privilege against self-incrimination. The court, however, indicated (at pp. 718--720, 68 Cal.Rptr. 817, 441 P.2d 625) that even a defendant in custody might make statements admissible under Miranda if it were shown that such statements were the result of the defendant's own initiative and did not arise in a context of custodial interrogation.

The record here does not indicate the unequivocal refusal and the coercive elements present in Fioritto. However, precisely because there was no Miranda objection by defense counsel, the record is somewhat ambiguous. It is not clear whether petitioner's incriminating questions to Captain Howard occurred before or after his refusal to sign the written waiver of his rights. Nor is it clear whether there had been any interrogation of petitioner. The record merely indicates that after being informed of the nature of the crime being investigated, petitioner told the officers they were 'after more than that' and were trying to 'trick him.' But, in any event, petitioner's admissions were in the form of questions to the officers. This in itself implies a voluntariness, and volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by Miranda (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694). Thus, statements made after petitioner was informed of the charge as a result of his own initiative are not subject to the exclusionary rule (People v. Fioritto, supra, pp. 718--720, 68 Cal.Rptr. 817, 441 P.2d 625).

People v. Treloar, 64 Cal.2d 141, 49 Cal.Rptr. 100, 410 P.2d 620, illustrates the type of statements, made on defendant's own initiative, that are not subject to the exclusionary rule. In Treloar, the defendant after his arrest initiated a conversation with the officers who were taking him to the police station. The defendant volunteered that if the police had been a few minutes later, he would not have been caught as he was on his way to South America and then asked how long the murder victim had lived. One of the officers replied and asked what had happened to the victim in the bar. The defendant responded that the victim 'tried to be a hero' and 'wouldn't do what he was told.' Our Supreme Court, applying the then applicable standards of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, held that both of these statements were admissible as the defendant had been in custody for only a few minutes and was being taken to the police station, the conduct of the police was neither intimidating nor interrogatory nor designed to elicit statements, the questioning was initiated by the defendant, and his final statement concerning the victim was the response to a neutral inquiry invited by his own remarks.

Also in point is People v. Daniels, 1 Cal.App.3d 367, 81 Cal.Rptr. 675, hearing in the Supreme Court denied December 23, 1969. In Daniels, the defendant was in custody on charges of rape and incest involving his 16- year-old daughter. Defendant, after being duly informed of his rights, indicated he wished to assert them by stating that he did not wish to talk until he consulted an attorney. Thereafter, the officer told him that his wife and son had been arrested for incest, his other children were at juvenile hall, and the victim had been examined and found pregnant. The record was silent as to whether this information was furnished in response to defendant's inquiry or volunteered. Defendant was not questioned and went to sleep. The following day, when an officer visited the defendant, he stated he was concerned about his family and wished to make a 'tape' to clear his family. Defendant was then again advised of his rights, waived them, and made a statement confessing the offenses charged. On appeal, the court rejected a contention that the statement and waiver of rights were induced through the coercive psychological influence in violation of Miranda. The court noted, at page 375, 81 Cal.Rptr. 675, that there was no deception, trickery or cajolery, as the information concerning the defendant's family was true.

Similarly here, the most reasonable view of the record is that petitioner's questions to Captain Howard were spontaneous and initiated by petitioner after he had been told the truth, i.e., that the officers were investigating an assault with a deadly weapon. Therefore, here, as in People v. Daniels, supra, the statements were made on petitioner's own initiative and, therefore, not subject to the exclusionary rule of Miranda. What we have said also disposes of the contention that the statements were involuntary in the traditional substantive sense.

We turn then to the more complex question of whether habeas corpus is an appropriate remedy in the instant case to raise an issue that could have been timely raised at the trial and on appeal.

Petitioner, citing Pineda v. Craven (9 Cir.1970) 424 F.2d 369, contends that since counsel's affidavit indicates that the failure to raise the Miranda objection at the trial was not a strategic or tactical decision, he is entitled to raise the matter by habeas corpus. Pineda held that a Fourth Amendment claim not raised at trial or on appeal in the California courts, could be raised on federal habeas...