*1 Apr. H000785. Sixth Dist. [No. 1987.] PEOPLE, Respondent, Plaintiff and
THE CELAYA, Appellant. Defendant and CARLOS CHRISTOPHER *3 Counsel Specter, J. appointment Appeal,
Howard under by the Court of Appellant. Defendant and Kamp, K. General,
John Van de Attorney A. Brady Thomas and Sharon G. Birenbaum, Deputy General, Attorneys Respondent. for Plaintiff and Opinion
PHILLIPS, J.* appeals Defendant judgment grand from a conviction Following theft. denial of defendant’s in limine motion to exclude his confes sion, defendant waived by jury agreed trial and to submit the matter on the transcript of the preliminary hearing. agreed It was defendant’s maximum years sentence would prison guilty. be two if state found Defen appeal right dant reserved including relating his to his motion to exclude the confession. Defendant guilty by was found court and was thereafter two-year prison. sentenced to a term in state only appeal
Defendant’s in denying contention on is the trial court erred motion to exclude the confession. We find meri- defendant’s contention judgment. torious therefore reverse the Gulizia, 22, 1985, Jr., January
At 12:30 a.m. on Anthony was awakened appeared by yard. a noise in front saw a with his He man outside what *Assigned Chairperson by the of the Judicial Council. office, County Sheriff’s the Santa Clara called four radios. Gulizia
be about later, report. an hour Gulizia a About deputies by and took and two came direction, opposite in the person walking by, going again saw the same carrying a chrome box. again. person if the came back put it bark dog his out so would
Gulizia barking, Gulizia noticed a.m., dog’s alerted At about 2:30 or 3 the man. The man and confronted person walking by. He went outside same ice chest. He appeared to be an and what squatting between a tool box carrying things down, and he had been his car had broken told Gulizia office, gave them the sheriffs again notified a friend’s house. Gulizia identified preliminary hearing, Gulizia At the description of the individual. individual. the defendant as the *4 his locked van morning, Quintara noted that Albert
At 9 a.m. the same missing, including a smoke into, were that items broken several had been television-radio, portable ammunition, portable a inhalator, handgun and a a Sergeant Robert heater, report filed with the sheriff. a A was and tool box. investigate this theft. Rutgers assigned to 8, 1985, accompanied his wife to the Santa Clara February On defendant unrelated to this case. on a matter County office.His wife was there Sheriffs description matching of the Sergeant Rutgers recognized defendant as like talk he would to person in theft. He told defendant Quintara wanted which was interview room him, accompanied him into the to and defendant building. adjacent in the in in an area the detective’s bureau and ran a check on drivers license Sergeant Rutgers obtained defendant’s suspect Quintara in relation to the a defendant he was it. He then advised Defendant was asked theft, questions regard to that case. and his were any of the stolen whether he had anything if the theft and he knew about specifically reflect defendant’s property. Although the record does not deny” “did not that defendant questions, Rutgers testified answers to these involvement in the theft. cooperation way he wanted his one
Sergeant Rutgers then told defendant meant, following discussion what he or another. When defendant asked occurred. way hard proceed either the or the investigation him can
“A. I told easy way. easy way way and was? explain him what the hard you
“Q. And did Yes, I “A. did.
“Q. you And what did mean that? way
“A. Hard was that he’d be taken in custody, immediate that he booked, placed jail would be that he would facility, be the main that lineup proceed bring would when I would personal witnesses in for identifi- there, upon identification, cation and from I would seek a search warrant obtaining in reference to property Staples at 285 where he resided with Wanda Sasser. easy way
“The seeking cooperation, was that I was his although if he had admitted the crime that he ques- was—would be detained for further tioning, however place no arrest would take until the D.A. re—viewed the case, and then in an effort to obtain the property victim’s back and he wished agree investigation assist go rather through booking proce- than dures.
“Q. And you what did do then? I slightly “A. discussed the case with him and advised him of Miranda[1]rights.” *5 point Mirandized, At some before he was theft, defendant admitted the although the record is not clear if it Sergeant was before or after Rutgers told appellant they proceed could easy “the way.” or hard preliminary
At the hearing, Sergeant Rutgers concerning also testified this him, same conversation. “... I asked shall we do easy this interview the or way? preferred the hard And easy he way. said, fine, the And I you then wish cooperate. to yes. He said you theft, And got did a vehicle gun air-pack and and I tools. want them answered, back. He you said, no, are arresting me? I you if get not now can stated, the items back. He let me see the list. He was reviewing the list report which is the crime the victim. He stated I can get green box, back all but the tool try. but I’ll I’m get sure I can it back. stated, IAnd now we’re going to do it right way. And he was read his rights Miranda and I received a second him.” statement from Sergeant Rutgers testified further: “Q. gave You him a choice of either cooperating you, with answering your questions returning property, or the being alternative of county jail time; booked right? at that is that
“A. That’s correct.
1602,10
Miranda v. Arizona
“Q. And then Mr. said that would right? property; he is that would return Yes,
“A. he did. you then read “Q. And it was after that conversation that from the card warning; right? is that Miranda essence, yes.” “A.
Sergeant Rutgers rights. Defendant then read defendant his Miranda rights, wanted the interview to continue. waived his and said he Sergeant utgers from defendant wherein he admitted then took a statement burglarizing agreed had the items. Defendant the truck and said he still stolen agreed Sergeant Rutgers get with the items back. Defendant to to work following Monday. He said he return with the stolen items on the would not permitted leave. Defendant Sergeant Rutgers run. then defendant to neither any Monday, returned the sheriff’s office on nor returned of the stolen items. description
Sergeant Rutgers fit the he testified defendant had of the inches, suspect (dark haired, eyes, to 5 feet 8 dark 5 feet 6 inches 130-140 old, pounds, years male-Mexican). Sergeant Rutgers possessed also infor- Staples, mation that a male Mexican seen at 285 where the occu- had been pants Sergeant Rutgers were “Caucasians.” also knew otherwise known to be approximately three blocks from the victim’s house. this residence was case, wife, Sergeant Rutgers knew that defendant’s From another Wanda Sasser, Staples. However, they know that lived at 285 he did not were questioned When defendant and husband and wife until after he defendant. *6 all together, Wanda the links were tied Sasser came into the sheriff’s office up. police questioning place specifically used for
The took in a room inter- area; police public away The from the other officers were views. room was present nearby at the time of the interview. in violation
Defendant the confession was elicited of his contends interrogation, it the result of a custodial rights. Miranda He maintains was inextricably prior involuntary tied to the and therefore and was coerced interrogation and statement. non -Mirandized incriminating undisputed defendant made statements to It is rights. primary Miranda The Sergeant Rutgers before he was advised of his
671 therefore, issue before us is whether custody” defendant was “in when these recently initial statements were “custody” made. We discussed as it relates requirement rights People Lopez to the of in (1985) Miranda v. 163 “ Caí.App.3d Cal.Rptr. 602 ‘Custody There we said: has [209 575]. the critical triggers necessity become element which warning against incrimination, (People ...’ (1969) Cal.App.2d 653, v. Manis 268 667 [74 Cal.lRptr. ].) 423 required prior police Miranda advisement to interroga person tion ‘after a has been taken custody deprived into or otherwise any significant his freedom of action in way.’ (Miranda, supra, 384 U.S. at p. p. 444 L.Ed.2d 706].) presented at While Miranda the clearest [16 [II] example custody, namely suspect the official isolation of a criminal in a police ..., station there applies protect is no doubt that persons Miranda ‘to settings in all in which their freedom any significant of action is curtailed way.’... aspect A of‘custody’ further must be examined. Prior decisions [H] application, have not been consistent its but most have acknowledged an objective custody. People test of v. (1968) Cal.App.2d 886, Ceccone 260 892 Cal.Rptr. ], person 499 stated that a is in custody when: [67 a reasonable ‘[A]s person he is led to physically deprived believe that he is of his freedom of any significant action in way.’ (Accord, People v. (1968) 751, White 69 Cal.2d Cal.Rptr. 873, 760 993]; People 446 P.2d v. (1974) [72 Herdan 42 Cal.App.3d 300, Cal.Rptr. 306 ]; 641 (1977) In re M. James 72 [116 Cal.App.3d 133, Cal.Rptr. 136 ]; 902 In re Pablo C. [139 129 Cal.App.3d 984, Cal.Rptr. 988-989 ].) The United States [181 recently given unequivocal Court has approval objective to the test of custody, stating: only inquiry relevant is how a reasonable man in the ‘[T]he suspect’s position would have understood his situation. [Fn. omitted.]’ (Berkemer McCarty (1984)], supra, [420, 317, [v. L.Ed.2d [468]U.S. 442][82 3138, 104 S.Ct. 3152].)” (People Lopez, supra, v. Cal.App.3d 602, 605-606.) “
The Berkemer court power phrase accord talismanic to the ‘decline[d] opinion’ in the Miranda (ibid.) purported require which Miranda advice upon deprivation suspect’s aof any freedom of ‘in significant way.’ action (Miranda, supra, p. 304 U.S. at p. 706].) L.Ed.2d at Instead the court ‘Fidelity stated: to the doctrine requires announced in Miranda that it be strictly, only enforced types but those of situations in which the concerns powered implicated.’ the decision (Berkemer, supra are at [468]U.S. p. p. 333, p. L.Ed.2d at 3149].)” (People 104 S. Ct. at Lopez, [437][82 *7 supra, 602, Cal.App.3d 607.) 163 “[c]ustody objective
Since is an subjective condition____[t]he intent of interrogator suspect not, the to arrest the upon in a sufficient basis itself custody which to conclude that (People (1974) exists.” v. Herdan 42 300, Cal.App.3d 306, Cal.Rptr. 641], original; in omitted.) italics fn. questioning, prior under arrest herein was not
Since defendant purposes Miranda at custody” “in for whether he was the issue narrows to place, yet taken the “When an arrest has not questioning. the time of many. custody has attached are deciding whether considered in factors interrogation; (2) whether (1) of the important are: the site Among the most objective indicia suspect; (3) whether the the investigation has focused on the questioning.” (People length form of present; (4) the and of arrest are Herdan, 300, 306-307, omitted.) Cal.App.3d fns. supra, 42 v. Herdan, deprived of case, we conclude defendant
In as in our People failed to meet their way, that the significant in a his freedom inherently First, interrogation in the coercive proof. the occurred burden (People v. Hill 70 Cal.2d police interview room. of the environment While was at the sheriffs Cal.Rptr. 225, 329].) P.2d defendant 678 [76 public area accompany his wife to the voluntarily, purpose was to office go room agreed to to the interview matter. He of the office on an unrelated Second, request Sergeant Rutgers. from specific questioning only at the Sasser, recog he with Wanda Sergeant Rutgers saw defendant the moment on defendant. suspect; investigation thereafter focused him the the nized as up.” addition, Sergeant Rutgers “all links were tied Sergeant testified the suspect in telling he was a the Rutgers began defendant the interview appear present. Third, to have been burglary. objective indicia of arrest the This, questions in an interview room. accusatory type asked Defendant was easy way the or hard coupled proceeding either with the discussion of “Furthermore, arrest. presence of the indicia of evidences the [defendant] present.... arrest were the indicia of reasonably have believed that could clearly] neutral questioning was not but Finally, the nature of [TI] [the highly It was accusatorial incriminating admission. elicit an intended to appellant custody was in factors, believe, that we indicate nature. These [H] (People free to leave----” he was not [questioning at the time of the and] Herdan, 300, Cal.App.3d 308.) supra, 42 v. White, supra, People v. 69 Cal.2d facts
The instant case is similar to the required. warnings were Miranda held that where our Court police accompanied the station for “There, officersto suspect voluntarily the there, investigating the Once questioning regarding a murder. omitted.] [Fn. suspicion on the which focused upon independent information came officer Herdan, p. 308.) The there supra, Cal.App.3d at officer suspect.” (People particular namely, whether a coat question, suspect “only one asked the suspect said that it did not. The him. The belonged crime involved request and when suspect put the coat at the officer’s then on [fn. omitted] well, suspect blurted out a confes- him that it fit officer commented suspect, investigation had focused on court, noting that the sion. The questioning was suspect go until the did not intend to let that the officer *8 over, nature, and that officer’scomments were accusatorial in held that custody pp. (Citation.)” (Id. 308-309.) at existed.
Having custody” was “in at concluded defendant the time of the initial statement, it clear it is the statement is not admissible since was obtained rights. Immediately following violation of defendant’s Miranda this admission, however, non-Mirandized defendant was read and waived his rights. gave substantially Miranda He thereafter a which was confession prior similar to the We admission. must therefore determine the effect the prior upon subsequent non-Mirandized statement had Mirandized confession. People adoption I,
The contend the of article (d), section subdivision of the California Constitution has substituted the federal standard of admis- sibility previously developed by the California Court. We conclude the confession is inadmissible under either standard. presumed
Under California law a non -Mirandized is confession later (In taint a Cal.App.3d Mirandized confession. re Pablo C. Cal.Rptr. 468].) C., highway patrolman Pablo a investigating of incidents rock throwing a freeway overpass. from juveniles, He detained two one whom of was Pablo. Police shortly arrived thereafter. One the officers took Pablo aside and him if asked he was throwing. involved in the rock Pablo admitted responsibility and the officerthen rights. again read Pablo his Miranda Pablo acknowledged his responsibility. days questioned Two later when was by he a receiving different officer at his rights school after again Miranda Pablo confessed. court
The ruled that the second admission at the scene and the third confession, confession at the by school were tainted the initial obtained warnings. p. (Id. 990.) without Miranda at nothing statement;
The court found coercive about the first the court ruled only that the minor rights being should have been read his Miranda before questioned initially. general “As rule where an makes accused one confes again confesses, presumed sion at a later time it is the second confession and. product (Id. p. is a 989.) first.” at suspect responded
Under federal law a who has questioning uncoerced having given may been warnings rights without waive his Miranda given requisite warnings. after he has been confess Miranda The subse- quent uncoerced, warned statement deemed not tainted unwarned
674
222,105
(1985)
statement. [84 1285].) The there held the circumstances “had none of earmarks court exploit pres the officers the unwarned admission to of coercion ... did [n]or p. respondent waiving right (Id. to remain silent.” at 316 sure into [84 p. holding limited its the failure to 236].) L.Ed.2d at The Elstad court warnings “unaccompanied by administer Miranda an actual coercion or suspect’s ability to undermine the to exercise other circumstances calculated will____” p. (Id. p. 232].) at his free at 309 L.Ed.2d [84 matter, unquestionably instant the second statement flowed inextricably with the first statement. The from and was connected statements part interrogation occurring location, were of a continuous at the same officer, uninterrupted Immediately same in time. conducted advisements, responsi receiving his Miranda defendant admitted before bility the crimes and discussed some of the details. The first statement immediately if followed the officer’s threat to arrest defendant he failed to defendant, cooperate. incriminating himself, only It was then that the after being by Sergeant Rutgers, going right way," we’re to do it the told “now rights. was advised of his Miranda therefore, post-Miranda
We find defendant’s confession was the product warning improperly this earlier statement sans and was obtained improper in evidence of a admitted. The introduction confession is 101, per (People (1976) reversible error se. v. Disbrow 16 Cal.3d 115-116 Cal.Rptr. 360, 272].) 545 P.2d [127 judgment
The is reversed. J.,
Agliano, P. concurred. holding BRAUER, J., Concurring I agreewith the that defendant’s first setting and was therefore admission was made a custodial inadmissible. believe, subsequent post majority, I as does the that his -Miranda statement inextricably given under tied to the first one and was circumstances replete Oregon with to be inadmissible even under earmarks coercion so as 222, 1285], (1985) 470 U.S. L.Ed.2d 105 S.Ct. Elstad 298 [84 join the difference between a federal and
But I cannot the discussion of standard, presumption readily I alleged of taint. concede here the California interpreter Court the ultimate of the Cali that the California put clearly Mr. Justice No one has it more than Cardozo: fornia Constitution. meaning judgment by higest “A court of a state as to the and effect of controlling everywhere.” (Highland decisive and its own constitution is 840, 835, L.Ed. 57 S.Ct. Dairy v.Agnew 300 U.S. Farms 549].) power, But I do challenge question while not I the manner of its years. exercise the last *10 upon shedding unpalatable
Intent obligation the to follow constitutional doctrine, Supreme the California Court has endeavored to infuse different meaning language into of the essentially California Constitution which is counterpart.1 People identical to its that of federal In v. (1972) Anderson 6 Cal.Rptr. 152, 880], Cal.3d 628 P.2d 493 the decision which outlawed [100 penalty, mightily brought death court the the labored forth2 fact the that delegates adopted to the constitutional convention the “cruel or unusual punishment” language from the North Carolina Constitution rather than the and unusual” in “cruel words contained and United Iowa States Consti- tutions, purposeful. Purposeful, and that such perhaps, choice was but to Anderson, purpose? what No evidence in cited, was cited none has ever been cited, by none can be delegates choice, People that the or adopting amendments, the California Constitution and its intended accord any greater immunity lawbreakers being from held than accountable is by them the vouchsafed United States If Constitution. there ever was doubt subject, dispelled Proposition on that it was 8.3 People May (Cal.), Supreme again California Court reaffirmed applicable exclusionary an rule statements, to defendants’ than broader one permissible precedents. under federal Rehearing granted has been in that High Our opportunity case.4 Court now has an to take another look at “the newly separate independent discovered state constitutional interpretations.”51 respectfully suggest that if scrutiny undertaken, such “independent ground” state will doctrine be revealed to a rest on histor- ical foundation of sand. Clark, J., dissenting People (1975) 929, Cal.Rptr. 1See v. Norman 14 Cal.3d 940 [123 109, 237], 538 P.2d labor, brought (Horace, Epistles, 2“The will be in mountains and mouse will be forth.” Poética, 139.) line
Ars Constitution, I, 28, (d); (1985) 3California article section subdivision In re W. Lance 873, 879, 889, 631, Cal.Rptr. Cal.3d 694 P.2d 744]. Court, 26, (Crim. 24991). 4Minutes of the March 5Richardson, dissenting People 101, Cal.Rptr. J. v. Disbrow 16 Cal.3d 120 [127 272], 545 P.2d