*1 Dist., Second No. 31063. Div. One. July [Crim. 1979.] PEOPLE,
THE Plaintiff and Respondent, JR., ALFIERI,
VICTOR ARTHUR Defendant and Appellant.
Counsel Denvir, Quin Defender, State Public under the Court of appointment by Sevilla, Charles M. Defender, Chief Assistant State Public Appeal, Stein, Martin Defender, State Public for Defendant and Deputy Appel- lant. *4 General, Philibosian, Robert H. Chief
George Deukmejian, Attorney General, Assistant Moore, S. General, Clark Assistant Attorney Attorney Norman H. Schwab, Sokolow and Howard J. General, Deputy Attorneys for Plaintiff and Respondent.
Opinion THOMPSON, J. trial, After Victor Arthur jury 17-year-old Jr., was convicted in the adult court of second murder and degree placed in the of the Youth In this he contends: (1) custody Authority. appeal, trial court action in evidence his and confession admissions receiving reversal because of of an standard impels application improper court in the facts and because determining preliminary admissibility obtained; the record the conclusion (2) compels they unlawfully trial court erred in an sanction failing impose appropriate destruction conversations; prosecution’s tape recordings (3) instructed with to the manner of its jury erroneously respect consideration of the of Alfieri’s and (4) credibility testimony; fails to credit Alfieri with time served in in the judgment custody period before judgment.
We conclude: the trial (1) court determined the facts having prelimi- to the of Alfieri’s statements naiy admissibility by application standard, of the evidence v. Jimenez preponderance (1978) Cal.3d 595 580 P.2d decided our 672], Cal.Rptr. Supreme Court after the trial at bar but made to cases expressly applicable pending mandates reversal for failure of the trial court to appeal, apply determination; reasonable doubt standard to its because the reversal (2) trial, of the remands the matter to the trial court for a new we judgment need not decide whether on the record the statements must be held to be law; as a matter of the trial court also an inadmissible (3) applied standard in ruling upon prosecution’s improper consequences harmless; destruction of the but the error was (4) tape recordings determined need not now be instruction questioned jury propriety Court; because the issue of its before validity presently Supreme retrial, in the event Alfieri is convicted after he is entitled to credit his sentence for time in against prejudgment custody.
Facts Murder Evidence, Alfieri’s sister was murdered. the most brutally damning which consists Alfieri’s admissions his confession while in police establishes his of the crime. The detail of the admissions custody, guilt and confession meshes with the facts established closely by physical evidence and other testimony.
Facts With Respect Interrogation
Destruction Tape Recordings *5 The of Alfieri was first testimony regarding interrogation developed in two one on a motion to his pretrial separate hearings, suppress admissions and a confession made in the course police questioning then in a on a motion to dismiss for the subsequent hearing police destruction of of conversations of sheriffs with tape recordings deputy Alfieri’s Both motions were renewed at the commencement at family. trial and were there denied. Because the of the trial on the judge ruling motion to the entire record of both based suppress pretrial upon we recite the evidence manner of without its hearings, segregating pretrial presentation. sister, on of Laura defendant’s was discovered August body met 1976. At 8:20 on San Luis sheriffs p.m. August Obispo deputy Based
with Alfieri his home where he lived with his parents. upon Alfieri to them concern- in information discrepancies given by apparent his whereabouts at the time Laura was murdered and statements of ing father, Alfieri further. Alfieri determined to deputies question 17 old He low was when was of borderline years intelligence questioned. Alfieri as diagnosed suggestible. subsequently psychiatrically highly one contact with the only prior police.
At 9:30 on Alfieri p.m. August voluntarily accompanied deputy sheriffs to the San Luis station. 9:50, at the station at Obispo Arriving Alfieri was a Miranda the statement that he given warning amplified by had a to the of his He was until 4:30 right presence parents. interrogated a.m. on 23. There were several short breaks the course of the August Alfieri denied connection with the murder. The questioning. deputies determined that he should be home with his transported thought that Alfieri would return the afternoon of the d for a polygraph examination. on the home, before Alfieri was returned
Early morning August his father sheriff’s station San Luis Pursuant to telephoned Obispo. of the sheriff’s was regular practice department, tape recording made of the call. In the course of a conversation with Deputy Hastie, Sheriff the senior Alfieri his son and was told inquired concerning his son was all to the father’s unrebutted he right. According testimony, also informed Hastie that Alfieri senior would for an attorney arrange his son. Also to the father’s unrebutted Hastie according testimony, that an secured; should Alfieri, Jr., not be that if replied attorney coúnsel, the sheriff’s office would represented drop investigation Alfieri, senior, would never know what to his happened daughter. Hastie told the senior Alfieri that his son was sent home and being advised him that chances were his son to kill him and his wife might try so that the senior Alfieri should hide all and knives as well as weapons to his trucks. keys
Alfieri was to his home on the 23. He transported morning August returned to the sheriff’s station at 3 voluntarily p.m. day A examination. Miranda undergo polygraph warning repeated, and the examination commenced at 3:15 until 6:20 p.m. continuing p.m. *6 Alfieri failed the test and was so advised. He that polygraph responded “the machine was wrong.”
Sheriff’s resumed the of Alfieri at 6:45 and deputies questioning p.m., continued until 8:30 when it was so that Alfieri eat interrupted might dinner. Alfieri continued to his resumed at 9:10 deny guilt. Questioning 9:40, After a 20-minute break at p.m. questioning again pursued in a new A format. asked that Alfieri assume that he was two deputy one who could not remember what occurred and the people, had other who had killed his sister. Alfieri was then instructed to relate what could have occurred if in fact he were the killer. over a Through process hours, of one and one-half Alfieri reconstructed the detail of how period said, have crime could occurred. Near the end “I interview he it,” did and that he had added no of “it at certain probably memory statement, Alfieri After said he would like to home. The points.” go “You can’t. Can ever home and questioning deputy responded: you go controllable, said, feel is is?” Alfieri “I’d like really everything everything to be with The continued the my parents though.” question- interrogator in the situation format. In course of his ing hypothetical interrogation, to said Alfieri: “It takes a man than believe to deputy bigger you I admit that and to admit that is needed and something happened help as a man for The in the world that. hardest respect you admitting thing it, “I that a mistake was I made.” Alfieri did do responded, guess you know, I but still don’t I did. . . .” Alfieri that think The told deputy would stand him behind outcome parents regardless and would continue to do so “once the found.” answer is interrogation Alfieri, The sheriff told “You have lived it for with three weeks.” He volunteered to Alfieri in his with and his help relationship parents intervene with the “media” in the of the murder. press coverage
At sometime between 10 and 11:30 of Alfieri further p.m., questioning Mosman, was conducted Dr. a retained San Luis psychologist sheriff’s office. Mosman identified he was himself stated that Obispo for the sheriff so would be there no He working psychotherapist privilege. said he wanted Alfieri that he would see that “help” psychiatric treatment was secured whether Alfieri confessed not. Mosman continued the with Mos- interrogation using hypothetical technique man the role of the victim. assuming 24th,
At about 23d or hours of midnight early August Alfieri’s father The call was sheriff’s office. made telephoned through on which recorded. The senior calls routinely tape Alfieri mentioned to a that he intended secure again deputy lawyer for his son. The answered that all would be cleared about deputy up Alfieri, senior, half an hour. The called back to inform that his son deputy confessed. same information was conveyed deputy Baldwin, Alfieri, to Bob friend and a trusted junior’s, grandmother confidant of junior. *7 arrested and after Alfieri was booked
Shortly midnight, formally cell,” a murder. he was a he was in an “isolation Because juvenile, placed six- a.m., room with an observation window. 8 a At only by eight-foot Dr. sheriff and Mosman reinstituted the deputy hypothetical assumption Alfieri, an of for about process technique questioning continuing hour. Alfieri was returned to his cell where he remained until about 1:30 when he interviewed for two hours a retained was by by p.m. psychiatrist the district attorney. as
At about Alfieri’s father and as well Bob grandmother, p.m., Baldwin, to visit Alfieri and for were periods permitted separately Each been informed sheriff’s about minutes had deputies apiece. by Alfieri admitted the that Alfieri had confessed in truth had only although murder while to have no that he had committed the professing possibility father and had occurred. When visited his what by by memory said, “Dad, I Baldwin, want to come home.” Alfieri was He crying. confessed, senior, “Son, Alfieri, told his son had been that replied, having Alfieri life I can’t is the time in this first queried, my help you.” just “It looks “Well, The father do I’m dad?” think you guilty, responded, I said, I’m come can’t remember?” Alfieri “If how way.” guilty, “Well, son, it, senior, and done if can’t remember answered: you you and awful, no and are need some awful sick help you going you’re what, asked to I then see matter I love and stand behind Alfieri you.” you with Baldwin, met his his with Alfieri Baldwin. conversation Following grandmother. confessed, Alfieri been told a sheriff that had already
Having by deputy all came into room and said: have proof “They grandmother it. So it, and must have done tell nickname], you Skipper [Alfieri’s for one Alfieri them they’ll you help.” responded asking get name. When that officer came to interroga- interrogating deputies room, confessed. An tion Alfieri subsequently interrogating deputy that he told Alfieri that he father and informed Alfieri’s grandmother he did truth. “blister ass” if not tell the would his 1976, counsel, with Alfieri’s On Alfieri’s connection September notice filed served on prosecution preliminary hearing, items, other the motion motion to sought: discovery. Among compel San Luis of all calls between the Obispo “Tape recordings Alfieri, Jr.’s resi- Sheriff’s and defendant Victor County Department 21st, dence, 238-2439, made either between August incoming outgoing, was on 1976.” motion heard magistrate August sheriffs team of 23. Two members deputy investigating September was heard and in the at the time motion courtroom magistrate’s of matters. The district ruled as calendar attorney upon large part with In connection that the discovery proper. acquiesced sought concerned, motion, “I’m said: also Your counsel hearing *8 Honor, I with the believe were made of tape recordings incoming Ias have in the Notice Motion calls of which the requested telephone to, I D.A. has but the is don’t know whether the Sheriff’s problem agreed and, so, their if for how I’d keeps tape recordings
Department long. [H] that no be which in ask to this The tapes destroyed pertain any way.” “Well, comment to that is that prosecutor responded: my only response we can’t that’s not as the existence of date obviously provide anything order, served, of the and when the order is our it’s intention to certainly with order once it’s as served to the items.” comply existing “I The ruled: think it would be at time this magistrate appropriate the Court to order the on Sheriff notice this that he date put is not to items of to this case destroy any physical property pertaining without further order asked, of Court.” Defense and counsel to reduce the ato written order. permission, granted magistrate’s ruling A formal written order of memorializing magistrate’s ruling 23 was counsel September prepared by signed by on 28. The order was served on the district magistrate September attorney on 30. September
It was the of the San Luis sheriff’s office to all practice Obispo preserve of calls for to 31 tape recordings incoming outgoing telephone on a 24-hour basis at days computed beginning midnight routinely erase the at the end senior’s, Thus the tapes period. tape conversation of 23 was in existence at the time telephone August notice of the motion was served. The or not have discovery tape may may been erased at time oral order on magistrate’s September whether the was one of those retained for 30 depending Upon tape days one of those retained for 31 The time for routine of the days. preservation the time the written order was and served. tape expired by signed conversation 24 was in existence at tape August time not oral order but at the time the written magistrate’s order was entered. The record not does disclose any procedure employed the district or sheriff with attorney respect physical preservation evidence an described a notice of motion or in oral or written discovery order issued in to such a motion. response
Alfieri filed motions to bar evidence of the confession pretrial that if was and obtained in violation his Miranda theory involuntary and to dismiss the information for destruction rights tape trial, The motions were denied. When at renewed recordings. they *9 542 to motion the confession and Both at the denied. suppress pretrial
again trial, the court determined the contested at renewal at its again of evidence test. facts the preponderance preliminary applying Admissibility Confession In this contends that erred Alfieri the trial court in not appeal, the reasonable doubt rather than of the evidence applying preponderance in carried its test whether the burden of determining prosecution the facts to the establishing necessary proof preliminary admissibility also, contends, He that of Alfieri’s admissions and confession. irrespective confession of the test of burden of admissions and must persuasion, be on the record deemed to be as a matter law. The involuntary Jimenez, 595, 21 Cal.3d concedes that v. People supra, prosecution 606-607, not erred in conclusion that trial court holding compels to the a reasonable doubt burden of establishing prosecution beyond facts to of the statements. necessary admissibility preliminary after also concedes that while Jimenez was decided the trial prosecution at it on this Cal.3d 608-609.) at bar (21 pp. applies retroactively appeal. is the Watson test harmless Jimenez to subject Noting principle Cal.3d at rests its 609), error (21 argument p. prosecution entire that from a record affirmance upon reading proposition there no Alfieri’s statements admissibility hearings more to Alfieri would have reasonable result favorable probability reached had the correct standard burden of been been persuasion applied. Jimenez, concession and its we
In
of the prosecution’s
support
light
to the trial court action
our discussion with
limit
receiving
respect
harmless
of the trial court’s
to the
or
character
statements
prejudicial
enforced
doubt standard for
reasonable
failure
apply
retroactively
A
trial
new
will be
facts
admissibility.
determining
preliminary
found to
erred
if either the trial court is
have prejudicially
required
evidence
of an
standard
receiving
proof
application
improper
as matter of
which the record discloses
be
a confession
involuntary
818, 833
59 Cal.2d
v.
(1963)
Cal.Rptr.
law. (See
[31
People Murphy
614, 624
264
P.2d
v. Green
346];
(1968)
Cal.App.2d
[70
People
381, 385
647];
Cal.App.2d
Phillips
Cal.Rptr.
cert,
den.,
We conclude that error is Because prejudicial. except *10 it of confession situation where is cumulative another received properly is in evidence an admitted confession treated as erroneously necessarily 948, 658, v. Randall 1 Cal.3d 958 (1970) (People prejudicial Cal.Rptr. [83 P.2d we of 464 focus our the a different 114]), analysis upon potential on the issue of the of Alfieri’s result statements if the trial admissibility had of court the standard the record as a proper proof. applied Viewing whole, we believe that there is a reasonable that had the probability correct standard been the trial court have determined that applied might had not established the nature of Alfieri’s prosecution voluntary statements a reasonable doubt. beyond
Several factors disclose the issue to be
in two
balanced
finely
respects:
There is a close
the extent to
which
statements
question concerning
were
obtained
violation of an accused’s
to
counsel
assertion
right
silence;
to
and an
close
extent to
right
equally
question
which the
statements
coercion.
product
psychological
with
to counsel and to terminate
There is
right
questioning.
Interference
unrebutted evidence in the
at
record that
termination
the time of
the first
Alfieri,
session of
Alfieri was
before
to
all-night questioning
home,
to
be returned
his
the sheriff’s
dissuaded Alfieri’s
department
father from an
to
intention
secure counsel for
son
his
the elder
by telling
Alfieri that if he obtained
counsel
sheriff’s
would close its
department
Alfieri, senior,
so that
would never know who murdered his
investigation
We cannot
that
the trial court
a
daughter.
say
applied
proper
standard of decision there is no reasonable
that it would not
probability
have concluded that the
was credible and
raised
reasonable
testimony
doubt
interference
the sheriff’s
with Alfieri’s
by
department
represen-
counsel
tation
to be retained
his father at a time before
questioning
resumed and
statements were obtained.
inculpating
to see his
in the course of the
request
parents
questioning
still another
In
v. Burton
night August
presents
problem.
375,
6 Cal.3d
383-384
491 P.2d
our
793],
Cal.Rptr.
Supreme
said:
Court
that
...
hold
when
a minor is taken into
and is
custody
“[w]e
without
of an
his
subjected
interrogation,
presence
attorney,
to see one of his
at
time
made
to or
request
parents,
any
prior
during
must, in the absence of evidence
questioning,
demanding
contrary
conclusion, be construed to indicate that the minor
desires to
suspect
his Fifth
invoke
Amendment
must cease custodial
privilege.
police
Here
exercise
immediately
interrogation
upon
privilege.”
with
course
said that he would like to be
his
of the questioning,
infer-
in context the statement
is
While
subject
conflicting
parents.
ences, one,
to be with his
that Alfieri would like
home
go
parents,
counsel,
there
that
other
he desired their
we cannot conclude
have been
the latter inference
not
no reasonable
might
probability
court
standard.
drawn
the trial
had it
reasonable doubt
applied
the United
We
that a recent decision of
States Supreme
recognize
99 S.Ct.
U.S.
L.Ed.2d
v. Michael C. (1979)
Court
Fare
*11
the
of Burton to the extent
casts doubt
2560],
validity
upon
decision
said to
the
the California
be
rest
rights guaranteed by
may
upon
however,
indications,
All
are that Burton will
United States Constitution.
the
state
of the
construed as founded
be
independent
ground
upon
a
of decision
Constitution. While
to
standard
California
declining
express
when the
state
is
concept
applicable
independent
ground
determining
109, 538
v.
Cal.3d
P.2d
Norman
14
929
(1975)
Cal.Rptr.
(People
[123
the California
has
the
court
237]),
principle
high
consistently applied
of
defendant over those
when its effect is to
a criminal
expand
rights
In a
enunciated
court of
United States.
analogous
high
closely
area,
v.
the California
Court has continued
rule
Supreme
People
817,
P.2d
Fioritto
68
714
441
(1968)
Cal.2d
Cal.Rptr.
625]
[68
state
action of the United States Supreme
independent
grounds despite
96
v.
423 U.S.
(1975)
Court
[46
contrary Michigan Mosley
231,
313,
v.
21 Cal.3d
L.Ed.2d
96 S.Ct.
(1978)
321], [People
Pettingill
861,
246-252
Coercion. also deal of evidence in record great of a conclusion that Alfieri’s are statements a supportive product coercive course of psychologically questioning. a inadmissible be which renders confession
Coercion
may
v.
60
(1976)
well as
as
Cal.App.3d
(People Wright
physical.
psychological
and hence
or
of coercion
6, 14
absence
311].)
Cal.Rptr.
presence
[131
must
“the
of a confession
be tested
nature
involuntary
voluntary
circumstances—both
characteristics
all the
totality
surrounding
v.
(Schneckloth
the accused and
details
interrogation.”
854, 862,
S.Ct.
218,
93
2041];
412 U.S.
226
L.Ed.2d
Bustamonte (1973)
[36
725,
707,
197,
L.Ed.2d
C,
442
see also Fare v. Michael
U.S.
supra,
[61
establish
an
The burden is
212].)
prosecution
upon
case of
in the
a
are
the burden is
accused’s statements
voluntary;
greater
1, 55
387 U.S.
re Gault
(In
(1967)
than the case
an adult.
[18
juvenile
545
49,
527,
v.
561, 87
Colorado
370
L.Ed.2d
S.Ct.
U.S.
1428];
(1962)
Gallegos
1209,
328,
325,
54
87
82 S.Ct.
A.L.R.2d 614].)
L.Ed.2d
[8
itself
not
does
invalidate minor’s confession obtained
Minority
after a recitation
Miranda
the minor of his
waiver
rights
and the
with counsel.
self-incrimination
consult
privilege against
right
586,
365,
v. Lara
67 Cal.2d
383
432 P.2d
(People
Cal.Rptr.
[62
are, however,
202].) The
of minor and his subnormal
age
intelligence
factors to be
the voluntariness
his confession.
weighed
determining
Bustamonte,
218,
854,
(Schneckloth v.
412 U.S.
226
L.Ed.2d
supra,
[36
Colorado,
v.
862];
370 U.S.
54
328];
L.Ed.2d
Gallegos
supra,
[8
Lara,
67 Cal.2d
So
385.)
supra,
psychological impact
(Schneckloth,
U.S. at
L.Ed.2d at
questioning.
supra,
p.
Lara,
862];
370 U.S. at
at
L.Ed.2d
328];
p.
Gallegos, supra,
p.
p.
Prolonged interrogation inherently *12 coercive. (Blackburn 199, 242, v. Alabama (1960) U.S. 206 L.Ed.2d [4 247, 80 S.Ct. 433, Reck v. Pate 274]; 367 U.S. 440-441 (1961) L.Ed.2d [6 948, 953-954, 81 315, S.Ct. v. New 1541]; York 360 U.S. (1959) Spano 1265, 1270-1271, 321-322 L.Ed.2d 79 S.Ct. Watts v. 1202]; Indiana 1801, 1806-1807, 338 U.S. 54-55 L.Ed. 69 S.Ct. 1357]; 21 Cal.3d 242.) People Pettingill, supra,
Here the record reveals an accused 17 of borderline years age, low and as Here intelligence psychiatrically diagnosed highly suggestible. the record discloses an 20 hours interrogation consuming approximately out of a total time in about with much of the police custody conducted at in the small hours of the interrogation night morning over in excess 8of hours each. Here the record discloses that periods Alfieri did not his confession until after the sheriif’s give unqualified in father, office had effect induced it by falsely informing a confessed, trusted friend had that Alfieri and then grandmother, father, and friend to visit with Alfieri. Here permitted grandmother, the record a discloses sheriffs and a technique questioning by deputy which Alfieri to assume he was the murderer police psychologist required and to state how he would have acted if he were. Here the record that the told establishes Alfieri that the would psychologist psychologist him, and he that sheriff counseled that help interrogating deputy would Alfieri as man if he admitted that a had been mistake respect he made and needed Here there is evidence Alfieri that help. he emotional state when decided confess.
highly circumstances, In this we must conclude that combination the burden of mandated trial court upon prosecution proof imposed Jimenez there is a reasonable the court have might probability or all of Alfieri’s statements were not but concluded that some voluntary reversal of the at bar. were coerced. Hence Jimenez case compels Recordings Tape Destructiont of destruc In for sanctions for the defendant’s motion ruling upon to and from the conversations tion recordings tape denied. The office, court Motion to Dismiss is the trial said: “The sheriff’s of the Court order. The finds faith or intentional Court no bad disregard Court finds no evidence which materiality, any showing supports Whatever have been substantial or modest. evidence preserved might erased and Court finds have been protection tapes, Court from the and that of the therefore eliminated hearing jury’s voluntariness, a reasonable but was harmless that this beyond question doubt.”
The trial court did not the correct standard of decision apply ruling the motion. Good faith destruction unintentional prosecu upon a crucial issue tion or of evidence favorable to a defendant on police trial court to a sanction impose requires appropriate preserving defendant’s to a fair trial absent right proof governmental established, enforced, have faith involved good agencies attempted *13 to to the to adhere and systematic missing rigorous procedures preserve 641, 9, evidence. v. Hitch 12 Cal.3d 652-653 Cal.Rptr. (People 527 P.2d The burden of to evidence 361].) preservation applies physical determination to relevant to the the facts requisite preliminary v. evidence. Swearingen admissibility critically incriminating (People 570, 755].) (1978) Cal.App.3d Cal.Rptr.
Here the relevant to Alfieri’s claim the were recordings tape to him of counsel to be obtained his acted sheriff’s deprive department inference of also as father. The relevant supporting recordings were, of coercive officers. Alfieri’s statements conduct by interrogating Thus, course, to the trial court’s standard evidence. crucial contrary motion, from were erased decision on fact that tapes than to the motion. court’s a reason to rather was deny grant hearing however, is, error harmless. Violation of in the trial court’s Any ruling to not evidence does prosecution’s justify obligation preserve information; rather, of dismissal of the sanction sanction appropriate 641, Hitch, 652-653.) evidence. v. 12 Cal.3d is exclusion of (People supra, Here the evidence that would have excludable had the been trial court standard and in favor found of the defendant would applied proper been sheriff have officers’ version the recorded conversa tion. such evidence No was introduced. that,
We conclude thus while the trial court erred in its basis decision motion, the on the error harmless. No.
CAUIC 2.62 2.62, Alfieri testified at his In trial. terms No. CALJIC trial court instructed that it was a defendant’s to but not that if he did right testify and failed to or facts him which he could explain deny against reasonably be or because of facts within his expected deny explain knowledge draw inferences adverse the defendant because of his jury might failure to or court trial also four instructions deny explain. gave to the of witnesses in relating credibility general. that there is in the record to indicate that Alfieri
Claiming nothing failed to or evidence which he be explain deny reasonably might and that in event expected CALJIC No. 2.62 deny explain, any out a defendant’s from that of other improperly singles credibility witnesses, Alfieri asserts error in the instruction in terms of CALJIC No. 2.62. no,t
We do reach that contention. The of CALJIC No. 2.62 is propriety now before our Court v. Saddler (Crim. pending Supreme People 20657, 1978) (Crim. Ellers hg. granted Aug. hg. 1978) Saddler Ellers almost granted Sept. Hearing granted so that a decision of the Court will be year ago presumably Supreme available to the court retrial. guide
Back Time The of fails credit conviction Alfieri with judgment prejudgment time of incarceration to Penal Code section 2900.5. v. pursuant People (1977) Sandoval 88-91 609], Cal.App.3d Cal.Rptr. requires We trial Sandoval be assume that the court will the credit allowed. apply should be convicted on retrial. the event that Alfieri in again
Disposition reversed. judgment Lillie, J.,P. concurred. Acting 6, 1976,
HANSON, Sometime after dark on J., Concurring. August stabbed 5 in front 15, was murdered. She was times Laura age in Her clothed and covered 25 times the back. body, partially completely brush, deer hunters in some old discovered tires early nor no evidence of a There was hours struggle following morning. sexual molestation. Alfieri, Jr., the brother Victor On Arthur 17-year-old August 7, 1977, Laura, was for the of his sister. On arrested murder Feburary defendant of murder trial a found guilty following 32-day jury to this second rise degree giving appeal. “Evidence, the most noted in
As opinion, correctly majority confession of Alfieri’s admissions and his which consists damning The detail while in establishes his crime. police guilt custody, admissions and confession meshes with facts established closely evidence and other physical testimony.” admission(s)
In the voluntariness defendant’s determining evidence test. the court below confession(s) applied preponderance Court in While the instant case was state Supreme appeal, 172, 580 P.2d 21 Cal.3d 672], Jimenez Cal.Rptr. test of evidence held determining preponderance no defendant’s confession is of a applicable admissibility longer held that to be California. The court the standard proof applied confession is the voluntariness of a defendant’s beyond determining rule was to be cases and that this new reasonable doubt applied *15 on appeal. pending Jimenez, I concur under the of
Accordingly, compulsion reluctantly1 be the conviction must with the that opinion judgment majority would, however, add for I the reversed and the matter remanded retrial. Court, state caveat for of the trial court that since the Supreme guidance were, as to it “the that the issue as rules of midstream changed game” confession at the voluntariness defendant’s and is thrown admission(s) and on a on that issue sides should have both large rehearing to introduce additional evidence and matter. opportunity reargue 22, 1979, A a and for denied respon- petition rehearing August for a Court was denied dent’s September petition hearing by Supreme Manuel, J., should be 1979. was of that petition opinion granted. reluctance stems from the 1My fact that but would Jimenez I affirm the judgment
conviction and
I
that
approve
the analysis
the United States
Court in
leading
Supreme