269 Cal. App. 2d 692 | Cal. Ct. App. | 1969
Defendant was accused of issuing a cheek without sufficient funds and with intent to defraud in violation of Penal Code section 476a. Defendant waived his right to jury trial, and by stipulation the cause was submitted to the trial court for decision primarily on the transcript of the preliminary hearing. The court found defendant guilty as charged and he appeals from the judgment of conviction. His sole contention for reversal is that his confession was illegally obtained and was therefore improperly admitted into evidence against him.
The relevant facts are these: Defendant was arrested in Carson City, Nevada on charges that he had passed two bad checks in A1 Tahoe, California. He waived extradition and was returned to California by Lieutenant Richard Lowe of the El Dorado County sheriff’s office.
Before leaving Carson City, Lieutenant Lowe advised defendant of his constitutional rights by reading from a
During the trip from Carson City to A1 Tahoe, California, Lieutenant Lowe conversed with appellant about his family and similar matters. However, during the course of the conversation the lieutenant asked defendant if he was going to use the attorney (Mr. Ligda) who represented him in another trial. Defendant replied that he was. Then Lieutenant Lowe volunteered to notify the lawyer.
On the day following their return to California Lieutenant Lowe visited defendant in the county jail and obtained a signed confession. However, before obtaining the confession the lieutenant again advised defendant of his constitutional rights and appellant repeated that he waived them.
The main thrust of appellant’s argument in support of his contention that his constitutional rights were violated when Lieutentant Lowe obtained his confession is that he had informed the lieutenant, during the trip back from Nevada, that he wanted Mr. Ligda to defend him. In short, relying on excerpts from Miranda v. Arizona, supra, and People v. Fioritto, 68 Cal.2d 714 [68 Cal.Rptr. 817, 441 P.2d 625], appellant asserts that further police interrogation was impermissible once he advised Lieutenant Lowe that he was going to use Mr. Ligda to defend him and the lieutenant volunteered to notify the lawyer. In Miranda the United States Supreme Court stated: “Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” (384 U.S. 436, 473-474 [16 L.Ed.2d 694, 723, 86 S.Ct. 1602, 1627].) And in Fioritto our Supreme Court said: “The central issue in this case, accordingly, is whether defendant's subsequent confession was admissible after he initially refused to waive his constitutional rights. Again, we look to the Miranda opinion for guidance, and on this point it could not be more explicit: ‘Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner,
“By his refusal to waive his constitutional rights initially, defendant indicated that he intended to assert his rights—the privilege had been once invoked—and all further attempts at police interrogation should have ceased. ’ ’ (68 Cal.2d 714, 718.)
We do not believe that the instant ease falls within the ambit of Miranda v. Arizona, supra, or People v. Fioritto, supra. Defendant was twice warned of his right to remain silent and to have counsel present at his interrogation before Lieutenant Lowe obtained his confession. On these two occasions appellant did not state or even suggest that he wished to remain silent or that he wanted a lawyer present before he talked to the police officer. On the contrary, on each occasion he told Lieutenant Lowe that he understood his constitutional rights and waived them. Moreover, defendant’s statement, during a casual conversation on the trip back to California, that he was going to use Mr. Ligda to defend him, was not of itself any indication that he wished to remain silent or that he wanted Mr. Ligda present during any subsequent interrogation by Lieutenant Lowe. If anything, it demonstrates that defendant understood his constitutional rights and that his confession was freely and voluntarily given.
Defendant’s second contention is that his constitutional rights were violated by Lieutenant Lowe because prior to his confession the lieutenant did not advise him of the elements of the offense for which he was charged, the possible defenses which he could assert, and the possible penalties he would suffer if convicted. However, an essentially similar argument was rejected by our Supreme Court in People v. Lara, 67 Cal.2d 365 [62 Cal.Rptr. 586, 432 P.2d 202], In that ease the court said: “Lara further complains, however, that the police did not inform him of ‘the elements of the crimes charged against him,’ ‘the possible defenses available to him,’
The judgment is affirmed.
Conley, P. J., and Stone, J., concurred.