*1 No. 7468. In Bank. [Crim. Jan. 1965.] THE PEOPLE, Plaintiff and Respondent, v. ROBERT B.
DORADO, Appellant. Defendant *3 Supreme Cragen, appointment by the under L. Edward Appellant. Court, Defendant Pillsbury, Lightner, E. William T. Lund, Fred Robert H. Smith, Kingham, D. Battin, Jim Frederick H. F. David Burnstein, Aubrey Grossman, Walker, Malcolm Doris Brin Kerson, Harry Margolis, Donald L. A. Herndon, James Erling Hovden, Public Davis, Klein, Earl J. George T. Mc- L. Angeles), M. Moore James (Los John Defender behalf Defenders, as on Deputy Amici Curiae Public Cormick, Appellant. of Defendant *4 General, Attorneys Lynch, and Thomas 0. Stanley Mosk E. Attorney General, William Smith, Assistant Arlo E. Chief Jr., Harris, Albert W. General, Attorney James, Assistant Rumph Marrón, W. Michael R. Charles Granucci, Robert R. Wenger, Deputy and Pañi B. Attorneys N. General, and Bruce Bales, Attorney District (Marin), for Plaintiff and Re- spondent. Joseph A. as Ball Amicus Curiae on behalf of Plaintiff and
Respondent. Barrett, Edward L. Jr., as upon Amicus Curiae, Traynor. Chief Justice TOBRINER, Defendant appeals J. judgment from a on a finding guilty verdict him of violation of Code section Penal provides which penalty for the automatic of death. The charged indictment defendant, 26-year-old prisoner serving a life term for marijuana, sale of with malicious assault with deadly weapon which prisoner’s resulted in a fellow death. The court denied defendant’s motion for a new trial. Penal section (b), provides Code subdivision for an automatic appeal. The main issue of this ease involves the admission into evi- dence of defendant’s confessions. For the reasons which we set out hereinafter light we have concluded of recent Supreme decisions of the confessions, United States ease, as obtained in this should excluded; have been their ad- requires guidance reversal. For upon mission trial we set forth of the court re- why rejected we have defendant’s conten- validly tions that the evidence failed to show that he was imprisoned under a life sentence and that the court failed jury. properly to instruct the We do not discuss defendant’s remaining arguments upon because the factual situations they in all likelihood which rest will not recur.
The Confessions background The facts of this case show the and occasion for According defendant’s confessions. prison officers, they discovered, at about 8 on a.m. December body yard of one Nevarez in the lower behind the bleachers and quonset Quentin near the industrial huts at San Prison. About personnel pronounced 20 minutes medical later the victim dead prison hospital. arrival The nature of the chest they wounds victim showed that could have been by inflicted small knife and that probably the victim physically during killing. been restrained Correctional officers undertook an investigation immediate *5 restroom, nearby a blood- ain discovered, in a trashcan and num- prison jacket identification with blue denim stained button pocket, and a on name “Dorado"1 out, ber cut jacket a melton they found missing. same trashcan In the taped knife sharpened with and a removed number with the blue denim belonging to the They button found the handle. in discovered officers jacket of the homicide. at the scene taped handle sharpened knife with a second another trashcan stained with blood. in his cell around 9
When the officers located defendant Upon their attired in his underwear. a.m. he was he clothing. dress, donned clean The officersfound no worn he clothing tape in his cell but did discover a roll of similar to tape the knife handles. Under a stack of soiled used clothing hamper in a clothes found defendant’s officers bloodstained trousers. Captain Quentin Hocker, Prison, an officialof San testified brought that the officers defendant to his officebetween 9 a.m. superficial and 10 a.m. order to examine defendant for cuts scratches, Captain requested strip and Hocker that defendant Immediately again. to the waist. thereafter defendant dressed jacket ap- When defendant was peared on which his shown the name comment, upon being no but he made told that Nevarez wept. Captain requested was dead defendant Hooker then hospital laboratory Officer to take defendant to the in Glazier might order that a technician and remove test some brown appeared on hands flecks defendant’s which to be dried blood. later, Midyett After defendant’s return about an hour Mr. attorney’s from the district officearrived. ¿he Captain Midyett early Hocker and testified that Mr. interrogation lasting of an afternoon, the course about two killing. testified, Both hours, further, admitted the defendant morning, 13, at next December his cell the ad- that on the presence justment center, defendant, in the Midyett, Mr. Thereafter, defendant gave a escorted Mr. written statement. prison over the route had Midyett officer he taken discussing killing, with them of the certain details the course after December codefendant crime. On Jiminez suspicion apprehended complicity, on a third had been place. impli- this occasion defendant interrogation took On accomplice who held as the Nevarez. cated Jiminez Captain only Hocker testified he not trial At the only prisoner Quentin San named “Dorado.” 1Defendant was interrogated initially present but the defendant had been dur major part interrogation ing defendant’s members attorney’s Cap of the district cross-examination, office. On ‘1 asked, you anybody tain Hocker was Did see or hear mention Dorado his to counsel?” and Mr. “Or his not to ” against testify ? ques incriminate himself or himself To both negative. tions, Midyett he in the answered Mr. testified to the same effect. testimony sharply voir
Defendant’s on dire conflicted with testimony of the officers. Defendant claimed that he freely voluntarily confessed, but had fabricated the partly by Captain he confession because feared threats made interrogation morning Hocker at an initial on the of December *6 only upon Captain 12. This was the occasion which he engaged Hocker conversation alone and without in benefit tape a further hearing recorder. Defendant claimed that Nevarez, friend, grief- of the death of who was his he became susceptible influence, stricken and and that moreover he was glue. under narcotic effects of Captain Defendant also testified that Hocker forced him to strip completely in and stand naked his office for some Captain minutes or more. He stated that Hocker swore at him him and threatened to brand an informer and turn him subjected prison yard in to be loose to the retribution of prisoners cooperate. if Finally, the other he did not defendant Captain claimed that Hocker indicated that he would see that get penalty confessed, not the death if defendant did he thus prosecuted implying would not be that defendant under Penal further Code section 4500. Defendant testified that the influ- pressures ence of these coercive continued his mind that so subsequently placing he fabricated the confessions to avoid prisoners jeopardy they at the hands of other because life might culprit. Captain on be told that he informed the real every Hocker these facts in and stated that he denied detail respectfully in treated defendant view his obvious remorse. Captain argues language Defendant Hooker’s and in- extracting ducements confession from indicate Jiminez of his own assertion of coercion. the truth The trial court did in fact rule that the Jiminez confession was the result of Dorado, however, The treatment accorded differed coercion. given difference, Captain from that This Hocker Jiminez. quiet explained, occurred because Dorado’s attitude was angry him, subdued, that no one could be with and because so readily interrogation, under whereas Jiminez he confessed Captain noted that proved Furthermore, Hooker obdurate.2 days several after de- came coerced Jiminez confession preceded by frequently abu- was sustained fendant's and coupled solitary confinement. questioning sive with accept finding Although of the trial court that we by coercion, not obtained we of defendant were confessions they into admitted should have been have concluded Supreme rulings of the United under recent States evidence long that court been troubled series of cases In a Court. protection ;3 of counsel obtained without confessions de- culminated recent the court two concern of historic (1964) 377 S.Ct. U.S. : Massiah United States cisions (1964) 378 v. Illinois and Escobedo 1199, 12 L.Ed.2d must L.Ed.2d we 1758, 12 Since 977]. U.S. 478 [84 duty apply to the instant case faithfully discharge our interpreted by the Su- as States of the United Constitution recent States, we must follow these preme of the United decisions. prosecution holds Massiah cannot introduce into incriminating “own words, evidence defendant’s which federal deliberately
agents
him
had
elicited from
after he had been
and in the absence of his counsel.” (377
p.
indicted
Defendant, who
for
indicted
been
violation
laws,
narcotics
had retained counsel.
federal
After defendant’s
bail,
agent arranged
a federal
on
with
Colson,
release
had
one
who
jointly
defendant,
indicted with
been
the installation
car of
radio transmitter. This device enabled
Colson’s
through
receiving
agent,
parked
set in a car
down the
with
street, to listen Colson’s conversation
defendant. The
*7
presented
defendant thus elicited
were
to the
statements
was
him
is the
approach
interrogations
terrogation.
fornia
more
S.Ct.
(1961)
[82
2Captain
3See,
S.Ct.
arrogant
and
complete
1336,
good
(1958)
367
left
n.
1209,
was
Hooker
’’
guy-bad
10 L.Ed.2d
2
U.S. 568
example,
the
and
because this
where
list of
357
8
L.Ed.2d
room and
S.Ct.
disrespectful.
gave
U.S.
guy
people
citations,
Haynes Washington
513];
the
approach.
433 [78
325,
S.Ct.
is a modus
my
following
are
The United
have
suspect
in situation in which a
recognized that
has the con-
right to counsel it cannot be lost
stitutional
because he did
Resting
ruling upon
counsel.
request or retain
earlier
not
its
cases,
Supreme Court
States
United States Court
United
very
Ninth Circuit in the
Appeals for the
recent case of
Sigal
Friedman,
People
(1963)
v.
221
4See discussion
Justice
684,
Cal.Rptr.
Cal.App.2d
703 [34
767].
5“
proposition
pretrial
Implicit
police
in Escobedo is the
interrogation
right
silent,
to remain
the accused has a
which he must
any self-incriminating
intelligently
waive
before
statements will be
very
At
least
Court held that
admissible at
accused has not
trial.
where the
effectively
right
silent,
been
warned of his
to remain
he
light
if
counsel
to enforce
he has retained and re
is entitled to
of,
request for,
quested
retention
nor
counsel. But neither
counsel seems
right
counsel,
established,
essential,
for in
situations
once
other
”
(Note,
depended
factors.
[Footnote omitted.]
on these
143, 219; see, also,
Term,
Supreme Court, 1963
78 Harv.L.Rev.
Right
Note,
to Counsel
State Court Cases: The
Waiver
Effect of
591,
Wainwright
(1964) 31 U.Chi.L.Rev.
602.
Gideon v.
350
Wright v. Dickson (1964) 336
878,
F.2d
882, explained its
position on
point:
this exact
“Under the rule of Escobedo v.
Illinois
leading
incriminatory
appellant
statements,
requested
appellant
been denied counsel and
had not been effec-
tively warned of his
absolute constitutional
to remain
pointed
silent.
Justice
As
White
out
dissent, it makes no
appellant
difference whether
asked to consult retained counsel
provided
or to be
with the
appointed
assistance of
counsel,
nor, indeed,
requested
whether he
all, except
counsel at
as
might
upon
latter
(Italics
bear
waiver.”
added;
fact
omitted.)
footnotes
itself,
dissenting
Justice White’s
opinion, in
which
Clark
concurred, pointed
Justices
and Stewart
out:
“Although
opinion purports
to be limited to the facts
case,
of this
it would be naive to think that the new constitu
depend upon
tional
announced will
whether the accused
counsel,
has retained his own
cf.
v. Wainwright,
Gideon
372
792,
S.Ct.
799,
U.S.
9 L.Ed.2d
733];
93 A.L.R.2d
[83
Illinois, 351
v.
U.S. 12
S.Ct.
100 L.Ed.
Griffin
55 A.L.R.2d
Douglas
;
California,
v.
351
grants protec
when the Constitution
held that
request. We
proceedings
without
the assistance
against criminal
tion
accused
must he furnished ‘whether or not the
counsel, counsel
Uveges
Pennsyl
appointment of counsel.
v.
requested the
184,
437, 441
S.Ct.
93
vania, 335
L.Ed. 127].’”
U.S.
[69
(1945)
485,
Missouri
323
(See
Tomkins v.
487
also
[65
407];
(1945)
786,
370,
L.Ed.
Rice v. Olson
324 U.S.
89
S.Ct.
989,
1367];
(1949)
L.Ed.
v. Burke
89
Gibbs
788
S.Ct.
[65
1247,
1686];
93 L.Ed.
v.
773, 780
S.Ct.
Palmer
337 U.S.
[69
154];
(1951)
S.Ct.
96 L.Ed.
Penn
Ashe
342 U.S.
[72
Claudy
sylvania
(1956)
rel. Herman v.
ex
U.S. 116 [76
126].)
L.Ed.
unchallenged
Carnley
Massiah leaves
the statement
v.
supra,
506, 514,
“requesting
Cochran,
369 U.S.
counsel”
“formality upon
. . .
right may
a
which
his
[defendant's]
depend.”
Indeed,
Massiah
not be made
refers to New
predicate
York
which did not
cases
to counsel
request.
post-indictment
These cases sustained that
interrogations
post-arraignment
regard
without
or
to whether
(People
had asked for
(1960)
the accused
counsel.
v. Di Biasi
825]; People
Although in
instant
case defendant could have
right
counsel,
of
to the assistance
we can find no
waived his
in the absence of evidence that he knew of his
waiver here
right.
points
may,
out that an
Thus Escobedo
“accused
of
right
course, intelligently
knowingly
and
waive ...
to
stage
(378
pre-trial
at a
either
or at
trial.”
counsel
U.S.
p.
14.)
of
at
490
That defendant should
informed
such
n.
right
alleged
expression
in
order
sustain an
waiver finds
Bhay (1960)
F.2d
v.
282
711: “Since
had a
Griffith
Griffith
right
to the
of counsel on the
of the
assistance
afternoon
sig
interrogation, his failure to
such assistance has
right.
if
only
nificance
it amounted to a
of
waiver
that
But
relinquishment
a waiver is an intentional
or abandonment
right
privilege.
a
A
of
known
or
waiver cannot be effected
intelligently
given.”
competently
(Id.
unless it is
717.)
p.
In
already
the absence of evidence that defendant
right
during
knew
had a
interrogation,
that he
to counsel
failure
finding
right precludes
of the officersto inform him that
of
knowingly
he
that
waived it.
right
Escobedo also holds
that
accused has the
not to
*****7
silent,*
incriminate himself
self-incriminatory
that,
any
and to remain
if
admissible,
statements are to be
he must
right.
knowledge
waive
Such
presupposes
that
waiver
right to remain
silent;
the absence of
evidence
such
knowledge,
requires warning
the waiver
to the accused of
right.
(cid:127)
repeatedly emphasizes
that defendant
had
case
not been
right
informed
his absolute
to remain
through
rights.”
citizens’ abdication
unawareness
their constitutional
(Italics
(Escobedo
added.)
Illinois,
supra,
478,
v.
378 U.S.
The
concurring opinion
Traynor
People
(1961)
v.
Justice
Garner
57
135,
Cal.Rptr. 40,
680],
ignorant
recognizes
Cal.2d
165 [18
367 P.2d
also
disadvantage
“Giving
process:
legal
inflicted
an accused who is
foresight
an accused who has the means and
retain an
attorney
(frequently
‘professional
criminal’)
counsel’s
presence during
gulf
interrogation,
rights
would widen the
between the
”
person
(See
Barth,
of a
of
with and one without counsel.
also
The Price
Liberty (1961)
Viking Press,
York, p. 162.)
New
Haynes Washington (1963)
503,
1336,
7In
v.
373
511
U.S.
S.Ct.
[83
513],
“right
10 L.Ed.2d
the court referred to defendant’s
to remain
also,
(1961)
568,
silent.”
Culombe v. Connecticut
See
367 U.S.
631
1860,
Rhay (1960)
S.Ct.
1037].
6 L.Ed.2d
v.
282
[81
F.2d
Griffith
711, 717,
it was assumed
“Griffith
.
had
.
.
to remain
effect,
433,
silent.”
v.
To
same
Crooker
357 U.S.
California
Payne
2
438
U.S.
[78
1448].
S.Ct.
L.Ed.2d
See
Arkansas
356
975]; People
2
567
S.Ct.
L.Ed.2d
v. Simmons
Cal.2d
P.2d
18].
720-721
stage
accusatory
silent at the
and that he
therefore
right.
waived the
the court states: “Without
inform
Thus
ing him of his absolute
to remain
silent
face
police urged
accusation,
him to
amake
statement.”
(Escobedo
Illinois, supra,
478, 485.)
378 U.S.
The court
points
Zerbst (1938)
out that under Johnson v.
1019, 82 L.Ed.
146 A.L.R.
ac
“The
may
intelligently
knowingly
cused
of course
waive his
*13
privilege against
right
self-incrimination and his
to counsel
stage
pretrial
trial,”
explains
either at a
or at the
but
that
knowing
intelligent
any
“no
and
waiver of
constitutional
right can
said to have
occurred under the circumstances
(Escobedo
Illinois, supra,
of
478,
this ease.”
v.
378 U.S.
490
distinguishes
fn.
The court
(1958)
Crooker v. California
1287,
1448], upon
2
ground
We that defendant’s confession could not properly be introduced into evidence because in- vestigation longer general inquiry was no into an unsolved begun particular suspect, (2) crime but had to focus on a suspect custody, (3) was in the authorities had carried out interrogations process eliciting lent itself to in- criminating statements, (4) effectively the authorities had not informed defendant of Ms to counsel or of his absolute silent, to remain and no evidence establishes that he had rights. waived these Nothing that we have said, course, should be in terpreted to restrict law enforcement during the in officers vestigatory stage securing from information from who one is later accused of the obtaining crime or from answers to questions. their Indeed, any statements obtained without coercion, including, course, the unsolicited, spontaneous given confession, in the absence of requirements for the accusatory stage, may be admitted into evidence.8 As the concurring opinion Traynor People Justice Garner 57 Cal.2d Cal.Rptr. 40, 367 P.2d long states: “So as the comply methods used process with due standards, public it is in the police interest to en courage confessions and during interrogation.” admissions Only investigatory stage when the has become an accusa- tory one, is, begun when it particular has to focus on a suspect, suspect police been taken custody, into police process have carried out a interrogations eliciting lends itself to incriminating statements, does the doctrine of apply given confession without required warning or other clear evidence of waiver become inadmissible Moreover, evidence. important consideration determining whether accusatory stage had thus been reached must be a careful concern that there be no interfer- *14 legitimate ence with the police investigation of an unsolved crime. Although Attorney urges the that General law enforce- handicapped severely by adhering
ment will be to the re- rulings Escobedo, argument quirements of based on as rejected to law enforcement was raised Escobedo itself and Supreme by Moreover, the States Court. we cannot United consequences overlook the too restricted and limited reading Supreme of the of the decisions United States Court. harmed, by helped, advising Law enforcement will be not police officers, only example, suspect for that it is when the applies, notwithstanding that Escobedo counsel that demands given following hypothetical 8The confession situation put by obviously General is “What about Attorney admissible: the person but is icnown as a wants to confess an unsolved crime? suspect who not him when he rushes into a station and police stop police . . . Shall to that wants to confess a crime and tell him to be distress he cries (Petition is obtained to him?’’ attorney represent until an quiet Rehearing, p. a,n investigation reached the accusa- has respects in all other have been of Escobedo conditions tory stage and the other might be any that confessions circumstances In such met. Supreme upon the United States would, review obtained exclusion, convictions based subject Court, to be overturning of such Meanwhile, before the them, reversible. wrong continue to follow decision, police officers would naught. come to result, their work would practices. As officials to inform law enforcement here We have endeavored investigations must be. stage an accused of their at what any rights con- in order that constitutional informed of his incriminating may admissions, statements he there- fessions, or legally malee to them will be after admissible. rulings presume to the merits of the We cannot evaluate merely apply Supreme and en- Court; we United States however, passing, as must. note in force its decisions we We forebodings many enforcement officials that of the of law rulings based on have not been as to the effect by experience. Thus, prior to the rendition of demonstrated decisions, larger California,9 at least one of the counties of military11 Investigation,10 the Federal Bureau of and the Nejedly, Attorney 9According to District the Honorable John county County, police suspects Contra Costa that have advised officers of police “. that of their to counsel . . at the moment intended they justify to arrest and felt that had the facts sufficient the arrest. (Assembly Francisco, July 21, Procedure, . . .” San Com. on Criminal pp. 15-16.) Escobedo, Investigation 10Prior an the Federal Bureau of rights informed person Thus J. of his the Director of the Federal to counsel and to remain silent. arrested Investigation, Edgar Hoover, Bureau of agents give ago are some time constitutional arrested stated the Bureau’s instructed to taught any suspect -warnings: “Agents or are interview, person, at the outset of an must be advised that he any given required can be not used to make a statement and that statement against Moreover, him in individual must be informed court. may attorney that, desires, an if he obtain the service of of his own he Hoover, Liberties and Law The Role ...” Civil choice. Enforcement: Report 175, 182. also the FBI 37 Iowa L.Rev. See Kennedy of President Commission on the Assassination President’s 621, 625; (1964) 619, Jackson v. United States 337 F.2d Ruehrup 138; 333 F.2d 644. United States Military provides suspect may that no Justice 11The Uniform Code of being interrogated first warned of to make a without may against (10 any be used him. statement made statement Military Appeals (b).) United States Court of § 831 U.S.C.A. suspects ground that criminal were denied on reversed convictions the charges investigatory interrogation during before to consult counsel right, military their counsel accrued. and before had been filed *15 354; (1957) United v. Rose (United States v. Gunnels 23 C.M.R. States (1957) 24 C.M.R. 356 substantially accepted Supreme of standards
have apparently but encountered no cases have serious im- pediments to law enforcement. dispose
Finally, we cannot the introduction of the ground illegally confession obtained it con Although merely harmless error. under stituted some circum introduction into evidence of statements stances obtained during interrogation police from a defendant violation of may counsel and to remain his silent con error, are convinced that the stitute harmless we error is neces sarily prejudicial when the statements are confessions. In Hamilton v. deed, (1961) Escobedo itself follows Alabama 368 157, 114], White Maryland 52 7 L.Ed.2d v. U.S. S.Ct. [82 1050, 59 10 (1963) 373 U.S. S.Ct. L.Ed.2d cases [83 showing prejudice.” (White “not which do rest ... on supra, p. 60.) Maryland, involuntary The use of an confession results in a process requires “regardless denial due reversal guilt.” (People (1964) other evidence v. Matteson 61 Cal.Rptr. 466, 1, ; 469-470 393 P.2d Cal.2d accord: [39 161] People Brommel (1961) 629, Cal.Rptr. 56 Cal.2d 634 [15 909, 845]; People (1960) v. Trout 576, 364 P.2d 54 Cal.2d Cal.Rptr. 759, 231, ; People 585 P.2d 80 354 A.L.R.2d [6 1418] 286, Lynumn (1958) ; v. Berve 51 Cal.2d 290 P.2d [332 97] 528, v. Illinois 372 537 9 U.S. S.Ct. L.Ed.2d [83 Rogers v. Richmond 365 ; U.S. 540-541 922] Payne ; L.Ed.2d v. Arkansas S.Ct. 760] 844, 2 975].) 567-568 L.Ed.2d improper introduction of the confession which in violation of the been obtained constitutional transgresses process protection counsel due no less illegal of a than the introduction confession which has been inquire either cannot prej coerced. case courts into the illegally udicial nature of the introduction of an obtained People for the confession reasons stated v. Parham (1963) Cal.Rptr. 497, Cal.2d 384 P.2d : “Al 1001] invariably persuasive most ... a confession will constitute guilt, usually extremely evidence of it is therefore diffi part played securing cult to determine what it the convic justify treating These considerations tion. [Citation omitted.] involuntary refusing confessions as a class themselves and inquire whether in rare cases their admission evidence bearing on no the results.” Thus in the instant
357 improper introduction of confession obtained case the the right compels constitutional reversal. in violation of a confession, on Summarizing principal issue the must the we conformity with the decisions of the this case decide having court the United That de- Supreme Court of States. right, is our of a constitutional it function the content clared logically applies. it it wherever To to enforce in situations would, effect, be to distort the United do otherwise States itself. Constitution say cannot here because defendant did We request apply
speak the of a for counsel we need not words Supreme decisions; the constitu the United States from the but does not arise counsel tional accusatory stage the from the advent of itself. We cannot expressed by the compress right, constitutional United States shape Supreme Court, into frozen formalism. Alleged Incompetency Insufficency
The Evidence Imprisonment Valid Under a Sentence Establish a Life alleged incompetency prosecution The evidence (a) to establish term. defendant’s Quentin validly in San If defendant were incarcerated guilt prison sentence, under indeterminate life of mali- deadly weapon, which resulted assault with a his fellow cious subject penalty him death prisoner’s death, would to the automatically imposed section 4500. This court Penal Code consistently upheld constitutionality Penal Code prisoners undergoing application to inde- section 4500 in its People (See (1956) v. terminate life sentences. 47 Jefferson People 1024]; 438, 330, (1949) P.2d Wells Cal.2d 442 v. 33 [303 Finley 53]; People v. P.2d 334-337 Cal.2d [202 Finley 248]; P. affirmed v. 153 Cal. 62 [94 California 75].) 56 L.Ed. (1911) 222 31 change urges that court should the above Defendant sentencing adoption of the indeterminate because of the rule procedure Legislature enacting” in 1901 and because “the contemplated penalty at no time automatic death approximately application one out of possible statute stat- prisoners. Such a basic reconstruction every three (See Legislature. People however, lie must, with ute p. 336.) Wells, supra, 12, 1961, at place on December The homicide took competent evi- adduced Quentin prison; prosecution San imprisoned to establish that then dence under an defendant was there life indeterminate sentence. Powers, Robert Quentin record clerk at San State Prison, testified that he served as official custodian of all in- supervised mate and that he upon records pri- entries each concerning soner’s inmate fixing warden’s record card paroles terms and based certifications of Adult Au- thority Clearly may action. the custodian of records com- petently testify concerning such entries their sources. (See People Cal.2d P.2d Jefferson People 1024]; v. Wells 33 Cal.2d P.2d 53].) Indeed, stipulated defense counsel the inmate indicating record card serving that defendant was a life term could be into admitted evidence. prosecution properly also introduced the certifications *17 Authority action, competent Adult which constituted evi- dence to that establish was unfixed on defendant’s term (See question. in 797, date re 33 1918, Smith Cal.2d ; Proc., ; 800-801 P.2d Code Civ. subd. 6 662] § 969b.) Code, Finally, testimony Pen. defendant’s tended § to corroborate records revealed these since he an awareness prison following that parole violation, his to return his had increased sentence been to maximum. originally
This that evidence shows defendant suffered im- prisonment Safety in 1957 violation of Health and Code that he sentence for section 11500 and received a the term prescribed by years life. then law five After the Adult Authority following term defendant’s his twice redetermined parole finally spring in imprisonment, it released him on parole, of 1961. time defendant his the rele- At the violated 22, Authority vant of Adult action dated certification June prison 1961, “Parole cancelled—return to ordered for states: report in which this order the reasons set forth part. (Term at maximum in accordance with Reso- refixed ” adopted 3-6-51.) lution Authority Resolution No. 171 of the adopted Adult March 6, 1951, provides April 1, 1951, that “effective paroles when suspended, cancelled, revoked, previous are action and/or
fixing prisoner term be rescinded will . . . and the shall serving prescribed be considered as the maximum term as subject Law, Sentence Indeterminate to further order of Authority. ...” 1961, Adult After order of 22, its June Authority the Adult did not redetermine or refix defendant’s order, by term. of that The effect reference to resolution years term five to life. reset defendant’s 171, was to No. 12, crime, 1961, December defendant date of the Thus on the subject undergoing indeterminate life sentence was was 4500. Penal Code section Jefferson, supra, argues in Wells and de- Defendant fixed, and hence the evidence teen fendant’s term person sufficiently proved defendant “was a cases those 4500, under Penal Code section undergoing a life sentence” originally years had been fixed at five here the term but that Authority Adult cannot suffice the certifications anything result, more. To reach strained how- prove ignore completely 22, the order of ever, must June defendant Adopted “Resolution reference to 3-6-51.” 1961, and its alleged invalidity (b) The the order Authority June Adult 1961. find no merit defendant’s contention
We that the June Authority Adult 22, 1961, order of the must fail for the following alleged (1) It three reasons: violated defendant’s rights Authority proceeded since the Adult constitutional affording opportunity to him notice or the without for a hear- prosecution ing. failed to (2) The establish that the Adult Authority based its revocation of parole, defendant’s good term, upon the increase his cause. (3) Defendant jeopardy in that, according double without suffered him a full Authority hearing, redetermined, the Adult and thereby in- term, which had creased, theretofore been fixed. requires No statute Authority the Adult exercising jurisdiction to determine its and redetermine sen give prisoner hearing. (In tences shall notice or a re Cal.Rptr. 55 Cal.2d 84-85
McLain
1080];
In re Smith
P.2d
Cal.2d
805 [205
*18
3020.)
;
Code,
P.2d
Pen.
The Penal
specifically
Code
§
662]
grants
Authority power
the Adult
“to suspend, cancel or
revoke
tence
violate due
[17]
and for
“
any parole
The
process
provisions for
granting, suspending
because
without notice.”
determining
of
the absence of a
or
revoking parole
(Pen.
or
redetermining
Code,
requirement
§
do not
3060.)
sen
hearing.”
(In
(1960)
notice or
McLain
re
body, including good the fact that cause existed for revocation parole. (In of (1949) re Smith 33 Cal.2d 801 P.2d 662]; Proc., Civ. Code subd. 15.) § Defendant alleges no facts and submits no evidence pre to rebut such sumption ; contrary, on the defendant testified at the trial that parole his lating was revoked when he surrendered himself for vio
its terms the use of narcotics. He stated then that at the narcotic “got treatment unit at Chino he involved with somebody up else and I guy got stuck for the and I violated ’’ Quentin. and sent to San The good record manifests cause. Finally, the action Authority of the Adult refixing perhaps increasing length sentences their does not con jeopardy. support double To contrary stitute contention, defendant cites the cases of United States v. (1931) Benz 354], 75 L.Ed. parte Lange and Ex (18 Wall.) 85 U.S. L.Ed. but these eases only may hold that a court record not a penalty increase already imposed without unconstitutionally subjecting the jeopardy. to double defendant Defendant of, received notice hearing and a on, the charge for which originally he was convicted; thereafter, he subject was to the executive orders Authority. Adult original proceedings “. . The . resulted a conviction and imposition of a sentence that was indeterminate, and until fixed, provided amounted to a maximum sentence for the question. Authority crime When the reduces a maxi sentence, action, very mum its in the nature things, may changed procedure tentative presents for cause. Such question.” (In McLain, supra, no federal re Cal.2d Alleged Failure Properly Jury. Instruct Defendant that the court should contends have jury following instructed the manner: That the jury determine the factual whether issue defendant was ac serving tually a life sentence at the time the commission jury of the homicide. consider That the lesser included deadly weapon by prisoner offenses assault with a undergoing (Pen. a life Code, 4501) battery sentence §
361
(Pen. Code,
undergoing a life sentence
prisoner not
by a
possible alternative
jury consider the
That the
4501.5.) (3)
§
(Pen.
§ 187),
Code,
guilty of murder
finding defendant
of
manslaughter (Pen.
(Pen.
or
Code, 217)
attempted
§
murder
§ 192).
Code,
rejected
allege
court
such
the
does not
Defendant
any
transcript
include
re-
the clerk’s
instructions, nor does
that defendant
jected
therefore, assume
instructions;
must,
we
the
whether
becomes
issue then
did
them. The
not
We
motion.
on its own
instructions
court
render these
must
requirement.
uphold
cannot
such
repeated
jury and twice
properly instructed
The court
emphasized that the
offense;
charged
it
the elements of
plea
’’
‘1
allegation.
every material
guilty placed in issue
question
jury the
presented to the
directly
court
Thus the
undergoing
sentence; we see
a life
defendant was
of whether
have further
holding
court should
no reason for
47
(People
v.
Cal.2d
this issue.
underscored
Jefferson
1024].)
P.2d
438, 444 [303
failing
jury
court err
to instruct the
con
Nor did the
specified
cerning
by
included offenses
defendant.
the lesser
repeatedly held that even those instructions
This court has
requested
concerning
given
lesser included offensesneed not be
charge of violation of Penal Code
face of a
section
Jefferson, supra,
(See People
438, 444;
47 Cal.2d
4500.
People Oppenheimer (1909)
74];
156 Cal.
P.
970].)
175-177
People v. Carson
Cal.
P.
jury
subject
instructed the
on
Moreover,
trial court
deadly weapon,
as assault with a
so that
malice as well
deprivation
a total
did not suffer
instructions
defendant
prejudice
any event, no
In
resulted
offenses.
on lesser
presence or absence of such instructions
because
from
clearly a life-termer.
was
defendant
judgment
is reversed.
J., Peters, J.,
Peek, J.,
Traynor,
concurred.
C.
judgment
affirm
find
McCOMB,
I dissent.I would
J.
violating
guilty
4500 of
Penal
ing
section
defendant
Code,*
reasons:
for these
*
part:
“Every
person
provides,
4500 of
Section
the Penal Code
State,
prison
who,
undergoing
in a
with
a life sentence
state
person
aforethought,
of another with
an assault
malice
commits
any
likely
by
deadly weapon
instrument,
means
force
or
or
bodily injury
punishable
produce great
with death ....’’
Illinois,
First. Escobedo v.
plicable present to the facts of the case. ease, only the court said: “We hold that when the process investigatory accusatory—when shifts from its *20 purpose focus is on the accused and its is to elicit a confes- adversary system begins sion—our to operate, and, under the here, permitted circumstances the accused must be to consult lawyer.” (P. 492.) with his Referring (that to the is, “circumstances here” in Escobedo Illinois, v. supra), hold, the court therefore, said: “We investigation where, here, (1) longer as general the no inquiry begun into an unsolved crime but has to focus on a particular suspect suspect,. (2) police the has been taken into custody, police carry process interrogations the out a eliciting incriminating that lends suspect to statements, (4) itself the requested opportunity been and denied to con- an police lawyer, effectively sult with his and the have not warned him of his absolute constitutional to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution obligatory upon by as ‘made the States the Fourteenth ’ Amendment, Wainwright, U.S., v. at Gideon [83 9 L.Ed.2d 93 A.L.R.2d and that no state- 733] by police during interrogation may ment elicited be against (378 him at a trial.” seq.) used criminal 490 et (Numbers added.) and italics It in is conceded the instant ease that element No. 4 was present, is, not defendant did not request, and was not opportunity denied, to consult lawyer. an with his limiting precise language Under the used the Su- preme ease, in the Escobedo it is clear that the facts in the case are different and instant that the Escobedo case applicable. is not extend the rule of
We should not the Escobedo case. This court should take a realistic view of holding in Escobedo Illinois, supra, support v. so as to law enforcement officers clearly when their activities are not unlawful, and not to preventing their in increase difficulties future murders and other crimes. support We should them in their efforts, lawful however protect
zealous, to citizens and to eliminate crime and enforce the laws of this state. We should not take an unrealistic of law and make it apprehend view of rules more difficult of crime reduce the increase prevent criminals alarming past year. place an rate at taken which has Hartgraves, Ill.2d 375 N.E.2d People v. discussing Illinois, Supreme Court however, not, do said: “We Illinois, page N.E.2d] rejection of a volun requiring as Escobedo case read the tary affirmatively caution did the State confession because attorney and right to an of his have the accused ’’ guilt. admissions of before his remain silent 4%, of VI, the California Consti- Article section Second. requires judgment tution, my opinion, affirmance judgment provides: “No shall be That section ease. any ease, ground improper . on the of . . any aside set ... any ... or for error as to ... evidence admission unless, after an procedure, examination of the matter of including evidence, cause, the court shall entire complained of opinion carriage the error has resulted in a mis- Hines, People justice.” (Italics (See added.) seq., seq. Cal.Rptr. et 175 et 181-182 61 Cal.2d 398].) 390 P.2d *21 present record in the An examination the case leads me “opinion” guilt there no the to the that is doubt of of de- prejudiced by being not not fendant and that he was advised previous He been of his to counsel. convicted of offenses, presumption criminal and there is a that on such (Code was informed he of his to counsel. occasions Proe., addition, he Civ. subd. had been in § knowledge it penitentiary, the state and is a matter of common rights informed, among that inmates discuss their and are the things, other of their to counsel. thoroughly in I am accord with Mr. Justice Schauer’s dissenting People opinion Hines, supra, in statement in v. ‘1 4%, 181: The mandate of VI, 61 Cal.2d section article recognized unequivocally by is is clear and this court in People supra, Watson 46 Cal.2d 836-837 [12] ; P.2d likewise clear is limitation of section 4 243] alone, powers questions to of law in all on our review crim ’ judgment of has been inal cases where death rendered. These just statutes; By are not these are constitutional bulwarks. properly People, concerned for their own these sections (and ones’) safety, judgment that loved have demonstrated rendered, lightly death, once is not to be set aside. Mere may procedural speculation declared judicially error upon is not a basis to the verdict which we contributed have judgment of lawfully death. The verdict is disturb can judgment jury. And of the is that it is that ours; not pursuant duly to verdict. rendered trial court of the power judgment right nor to reverse that have neither We (the totality record) us before unless the evidence only prepon- probability—i.e., error but the establishes showing—that more in a result favorable to defendant derates in absence of the have been reached error. would repeating test, that in Watson we said “It bears ‘[T]he necessarily any ways, of the several must as stated be probabilities upon rather than mere based reasonable purpose of possibilities; otherwise the entire the constitu- (People provision would be defeated.’ Watson tional 243].) Today, P.2d (1956) 46 Cal.2d 837 [12] [299 bench, appears by majority’s it to the case ruling me purpose provision ‘the entire of the constitutional [is] ” defeated.’ my opinion Again, judiciary it should con- people protection of en- sider the innocent this state and support deavor to law enforcement officers their efforts prevent taking place increase of now crimes at an alarming in this rate and other states of the United States. recognize prevention may We should that the of crime prompt punishment enforced best conviction and every legitimate and should endeavor in criminals manner protect unnecessary our innocent citizens and to avoid re- manifestly guilty versals of conviction of criminals, thereby protecting law-abiding public. better BURKE, J., Dissenting. Illinois, In Escobedov. 378 U.S. Supreme 12 L.Ed.2d Court of the repeatedly application States limited the United of the rules establishing present it was circumstances such as were expressions circumstances,” that case. Such as “Under these “Where, here,” repeatedly, indicating are utilized as applied that the court did not intend such to be rules uni versally regardless particular of the circumstances of the case. This; cautionary qualification Supreme is reiterated in the *22 holding California, reference to the in Crooker Court’s 1287, 2 L.Ed.2d which the Supreme compel contrary Court stated did not a result to ruling in Escobedo. The court stated: “In that its case rejected sought merely Court the absolute rule [Crooker] ‘every request denial a by petitioner, that state of to contact infringement on the constitutional counsel [is] ’ regard case, Id., of without to the circumstances at 440. Court, original.) applying . The (Emphasis . . these total the circumstances dur principles’ ‘the sum of [there] ’ id., ing petitioner counsel, 440, con the time was without at fundamentally prejudiced by he had not cluded that been Among for counsel. the critical denial his distinguish that which case from circumstances [Crooker] petitioner there, this are that but not one [Escobedo] police explicitly his here, advised constitutional was ‘say anything’ response silent not to to remain id., petitioner questions, there, at and that but not to the here, man who had criminal a well-educated studied law was attending year.” In this law school for a reference to while Supreme again that each stresses case must Crooker totality weighed in own relation its circumstances. distinguished Escobedo, in part, from Crooker was because 22-year “a old Mexican Danny was Escobedo extraction previous experience police,” with with no record Escobedo, noted, page 482, Crooker, as was a well- whereas knowledge of criminal educated man who law. 26-year-old serving convict Similarly, here, Dorado awas of narcotics at time prison a term sale life deadly resulting weapon, in a malicious assaults with fellow against charged him. prisoner’s death, were dissent that Dorado had been McComb notes his Justice previous offenses, pre- criminal and there convicted of sumption informed on such occasions he was of his upon arraignment during (Code trial. Civ. to counsel addition, he had been in the state Proc., subd. § knowledge penitentiary it is matter of common their discuss and are well aware of constitutional the inmates rights. Danny in criminal degrees sophistication matters of The poles apart, “cir- Dorado are and the and Robert widely Esco- from those of of this case differ so cumstances” inapplicable rules laid down Escobedo render the bedo as to in this case. distinguishing fea- the further alludes to Justice McComb of the Escobedo rule is basic elements one of the ture that “(4) suspect case, namely, in this present not requested opportunity with consult denied an and been recognizes majority opinion distinction lawyer.” *23 request holds the but that failure of the accused to counsel justify application does not “the rule of of different a law reasoning that from established Escobedo. The basic of the opinion permit court’s will not such a formalistic and, further, right to distinction” that “The matures counsel accusatory stage; right originate at this critical the does not in the of request accused’s assertion it. The accused’s for he, point no than himself, counsel indicates more at that perceived proceedings, legal in the of the need assistance. merely request constitutes evidence that the accused finds accusatory predicament.” himself majority right concur in the view of I the that the to be right furnished counsel and to advised the be of to counsel request. depend contrary a If does the were the prison-wise it the rule would favor against criminals and discriminate ignorant, the mentally the uneducated or the retarded. agree majority right I with the that “the constitutional does not arise from the for counsel from but the advent accusatory stage I majority of the itself.” differ with the apparent assumption in every case, regardless in its of circumstances, distinguishing stage if such accusatory has reached, in fact been no confessions elicited from the accused interrogations police may properly by of the be received expressly it be shown that accused evidence unless the was by interrogators right of his to remain advised his silent and knowingly right. or of his to counsel he waived such accusatory stage test at the I the crucial believe is whether reasonably may from (and this, infer we circumstances Supreme Court clear, United States makes means all circumstances) particular of the case that the accused was rights. of his constitutional This is the test that court aware applied Crooker and both Escobedo. professor, lawyer a Were the accused law a or a former holding policeman, majority, under the before the person admissible, of would be confession such it would be during necessary process interrogation to show incriminating obtained, and before the admissions were rights informed of his constitutional accused had been or had to applied them. Escobedo the test be waived Under reviewing court or a court would be: trial Under the “sum particular case, total of the circumstances” was lawyer policeman professor, or former “fundamentally law interrogators by the failure of the prejudiced” to inform counsel of his of his at that time him silent? remain it Escobedo, would better the rule of with Forearmed interrogation routinely during such an police practice thereby avoiding conjecture rights, the accused advise of the effect of failure to so appellate level at the trial showing that such However, advice was him. absent advise rule Escobedo so not extend given, this court should rigid inflexible, and law, notwithstand- that as matter ing degree sophistication or criminal record and *24 may confession thus obtained experience accused, no received in evidence. be majority holds that the mere utterance of noted, As lawyer,” words, do not create the “I want totality present of the circumstances which counsel—it is maturity; it not brings similarly, into is mere words, attorney “You are entitled to an utterance of the and silent,” which render admissible in to remain subsequent evidence of the accused. It is utterances the “sum total ’’ weighed present must be circumstances which determine rights and, of his therefore, the accused was unaware whether “fundamentally prejudiced.” many There are was situa- by mere of such words tions where the utterance interro- subsequent gator not render a confession would admissible. Thus, rights the accused’s awareness of his constitutional is not whether informed him the crucial test someone rights immediately eliciting incriminating before such statements. present in Dorado, The circumstances established previously record, that as a indicate convicted felon he had rights. degree of his constitutional been informed His fully sophistication did criminal establishes as as the one legal knowledge year of education establish waiver in interpretation present any Such does Crooker. not incon sistency rule in between the Crooker and that in Escobedo. case, namely, circumstances” of this “Under defend sophistication, known, is criminal there not presumed, ant’s any purported unnecessarily to be waiver advised of already that which he knows. of section of article The mandate VI of the California 4% requires this court to Constitution review the entire record only if there was error in the to determine admission of respect evidence, is asserted with to Dorado’s as here confes- authorities, probability to the but the that a sion result more would been had the favorable to the defendant have reached applying this constitutional error not been committed. firmly justified, I no reversal the ver- test believe upheld judgment jury dict of the and the should court affirmed. trial I
For these reasons dissent. J.,*
Schauer, concurred. 7794. In No. Bank. Jan. [Crim. 1965.] In re ERNEST BARRAGAN LOPEZ WILLARD Corpus. WINHOVEN on Habeas
ARTHUR *25 Supreme sitting assign- *Retired Justice of the Associate under ment the Chairman Judicial Council.