*1 Nо. 4051. Fifth Dist. Jan. [Crim. 1982.] PEOPLE, Respondent,
THE Plaintiff and PRYSOCK, RANDALL Defendant Appellant. JAMES *6 Counsel Denvir,
Quin Defender, State Public under appointment the Court of Appeal, and Richard Defender, G. Fathy, State Public Deputy for Defendant and Appellant.
George General, Deukmejian, Philibosian, Attorney Robert H. Chief *7 General, Assistant Attorney Arnold -O. Assistant Overoye, Attorney General, Constantino, Diana Beth James T. Carla J. McNally, Caruso Keller, and Eddie General, T. Deputy Attorneys for Plaintiff and Respondent.
Opinion James Prysock, aged Randall
FRANSON, Appellant, P. J. Acting herein, was found guilty by jury charged the time of the offenses one of Erickson as count charged of Iris Donna first murder degree special findings The also returned jury an amended information. wilful, and was (1) per- deliberate and premeditated, murder was the commission of a robbery; appellant during committed
sonally by commit- wilful, personally and premeditated was deliberate also found infliction of torture. The jury appellant involving ted by (Pen. was true. in the murder weapon using deadly charge 12022, (b).) Code, 187, 190.2,1 subd. §§ on the following charges:
The also returned verdicts of jury guilty two, with the use of a dangerous of Iris Donna Erickson count robbery three, (Pen. 211, 12022, (b)); Code, count burglary subd. weapon §§ accompanied Iris Donna Erickson and occupied the residence Code, 459, 12022, (b)); (Pen. the use of a subd. deadly weapon §§ (Veh. five, four, Code, 10851); escape count auto theft count from § six, (Welf. Code, 871); & Inst. and count destroying youth facility § (Pen. Code, 135). coparticipant evidence Mark Danley, appellant’s § trial, of the same in a later juvenile, charges also found guilty ztnd relevant including special an additional findings charge here.
The court sentenced under count one to state for life appellant prison three, without possibility parole. sentences on counts two and enhancements, and their related were to Penal Code stayed pursuant section 654. the sentences for counts two six were Additionally, through sentence, deemed to into” and to run with the life “merge concurrently and the execution of the sentences pursuant were to then Penal stayed Code section 669.
This is the second time this case has been
this
before
court. On De-
5, 1980,
cember
we
reversed
trial court and ordered a new trial
(Miranda
beсause of what we considered to be Miranda error
v. Ari-
1602,
zona
A.L.R.3d
974])
appellant
warning given
concerning
30, 1978,
having
1 Appellant
January
is accused of
committed the offenses on
there
fore,
being
(Stats.
Legislature
he is
tried under laws enacted
in 1977.
ch.
1257-1258,
11, 1977.)
pp.
Aug.
eff.
§
*8
if he
interrogation
to
with
free
before
right
lawyer
police
consult
After
inadequate.
granting
respon-
could not afford to hire one was
the
certiorari,
the
the
Supreme
dent’s
for
States
Court held
petition
United
law,
adequate
were
as a matter of federal
reversed
warnings
Miranda
our
remanded the
to us “for further proceedings
decision and
case
this
453 U.S.
Prysock
inconsistent with
opinion.” (California
703,
2806,
696,
2810].)
L.Ed.2d
101 S.Ct.
appellant’s
to be
we conclude
conviction
explained,
For
reasons
six, de
with the
of count
exception
should be affirmed on all counts
135.
in
Penal Code section
We also
evidence
violation of
stroying
on
conviction of first
murder
appellant’s
degree
sentence
modify
(count one)
v. Davis
imprisonment
required by People
to life
Penal
sec
Facts Erickson, son, theft had car reported Brad the victim’s 16-year-old 4 months to the incidents Danley prior Mark some coparticipant he was made the boast question. subsequently going Danley mother, murder victim. Appellant “take care of” Brad Erickson’s Danley (innocently) had been Appellant overheard this statement. prior this car theft. when he arrested for his facts at trial after additional following testified to the
Appellant the authorities his statement suppress taped unsuccessful motion a ju- from Danley escaped on his The night appellant arrest. Saturday, January during evening venile detention facility Tulare rode about in boys which the 1978. stole Danley vehicle the interior on with a tree set on collided County Sunday. Danley Danley a Datsun pickup. stole Monday, appellant fire. The next day, He drove to house it the Town of Porterville. then drove around was at food, his mother but did not because stop obtain clothing home. times, saying house several past drove victim’s
Danley then victim’s car was and clothes. The he food they get knew where could shop. was at a repair on that date it Danley; known to apparently *9 son, Erickson, victim’s Brad had left in his earlier to take some pickup to a The papers appellant stopped center. recycling Danley long to allow to look in the made two enough Danley garage. Danley sepa- rate calls to an unknown number from a convenience store telephone located near the house. there was no According appellant, conversa- tion over the telephone. pair
The then on parked street and walked to the rear of the nearby house. to force Danley attempted entry breaking out a window. by victim, When house, confronted who was inside the both boys ran to the front of the house and entered the front through door.
When the victim announced she was to call going police, ap- hit her pellant two or three times with a which wooden dowel he found near where he was in the room. then hit her with standing living Danley a metal fireplace poker, stabbed her in the back times with an eight ice to a. pick consistent one inch depth of to one and inch and one-quarter her to death with a eventually strangled telephone cord. murder, food,
After the stole a boys shotgun, money tapes from the into, house. also stole clothes They which subse- they changed quently the clothes which burning wore at the time of the they killing. vehicle, evidence,
Later that their day, full of was incriminating spotted police in a chase and resulting their arrest. The Miranda Were Warnings Adequate station, after Shortly taken to the being police appellant was given statement of his “Miranda” rights by de- Sergeant Byrd. Appellant clined to talk. The record does not reveal the exact content advisement.
Appellant’s
called,
parents were
came to the station. About
they
talk,
20 minutes after
had refused to
his mother
appellant
entered
room where her son was located. She talked with him about 20 minutes.
Appellant’s mother exitеd and indicated
wished to discuss the
appellant
events earlier in
A
few minutes after this
day.2
Sergeant Byrd reen-
located;
tered the room where
appellant
appellant’s parents
suggest possible Pettingill
2 The facts
error but none
occurred.
mother came to
police
requested permission
the station house at
behest and
to talk with her son. After
conversation,
police
ready
minutes of
she then advised the
that her son was
to talk
(see People
Pettingill
108]).
“Randall P.: me, to to is And, uh, asked talk since then have “Sgt. Byrd: you correct?
“Randall Yeh. P.: were not And, uh, first folks at the interview Byrd: during, your
“Sgt. legal rights to through now I want present, go your are present. they answer you I would like for to right with and after each legal again you Mr. rights, Prysock, it or not.. .. Your you legal whether understand follows: This One, silent. means you
“Number have the to remain you right desire. Do understand you have talk to at all unless so you don’t to me this?
“Randall Yeh. P.: silent, anything you If remain Byrd: up your right “Sgt. you give of law. Do be a court against you can and will used as evidence say understand this? you
“Randall P.: Yes. are a lawyer you You have the to talk to Byrd: right
“Sgt. before being questioned, while are you you have him questioned, present this? Do understand questioning. you and all during “Randall P.: Yes. have also, have the right You Byrd: being juvenile, you
“Sgt. Do understand this? which are. your parents present, they you Yes. “Randall P.: here, you Even if weren’t have this Do
“Sgt. Byrd: they you’d right. understand this?
“Randall P.: Yes. all, right lawyer You have the to have a uh—if,—you
“Sgt. Byrd: at no cost Do understand you yourself. you appointed represent thisl
“Randall P.: Yes. *11 Now, mind, all these in do
“Sgt. Byrd: rights wish to having legal you talk to me at this time? (Italics added.)
“Randall P.: Yes.” At this at the point, request of Mrs. a conversation took Prysock, with the place tape recorder turned off. to According Sergeant Byrd, Mrs. Prysock asked if could still appellant have an at a later attorney time if he gave a statement at that time without one. Sergeant Byrd as- sured Mrs. Prysock that would have an appellant when he attorney went to court and “he could have one at this time if he wished one.”3 The United Supreme States Court ruled in su Prysock, v. California pra, 453 696, 702, U.S. 361 L.Ed.2d 101 S.Ct. 2810], [69 that Sergeant Byrd “fully conveyed to his [appellant] rights required tape 3 The reflects following concerning the off-the-record discussion: “Sgt. Byrd: Okay, Prysock, you Mrs. get asked to tape, off the During ... that time asked, you you decided wanted getting, some time to think about whether to hire a law yer or not. “Mrs. P.: ’Cause I didn’t understand it. “Sgt. Byrd: you And you have decided now that go you want to ahead and do not lawyer wish a present at this time'l “Mrs. right. P.: That’s “Sgt. Byrd: And 1 persuaded you have not any way, in is that correct? No, you “Mrs. R: “Sgt. Byrd: have not. And, Prysock, Mr. is that correct that 1 nothing persuade have done to to, you not to lawyer go hire a or to on with this? “Mr. right. P.: That’s “Sgt. Byrd: Okay, everything doing we’re strictly here is in accordance with Randall yourselves, and is that correct? “Mr. P.: That is correct. “Sgt. Byrd: Okay. Uh, right, off, Randy, all I can’t remember where left 1 think I uh, you, mind, asked your legal rights with you do wish to talk to me at this time? That is everything you, your I legal rights, your told all right attorney, to an to present prior have a lawyer was told of his right Miranda. He at no lawyer appointed his to have a right during interrogation, warnings conveyed [appellant] if he not afford one. These
cost could could, not one prior he lawyer appointed to have a right afford if erred in Appeal holding The Court of during interrogation. the order in which they because of inadequate simply were warnings (Italics added, omitted.) fn. were given.” ri desirable “any it had never Supreme suggested
The Court noted Quite warnings. of the required in the gidity [¶] [Miranda] form incantation was indicated that no talismanic Miranda itself contrary, Prysock, supra, (California its strictures....” required to satisfy 2809].) Pry- at The p. at 101 S.Ct. p. L.Ed.2d p. U.S. equivalent” effective fully deemed to be “a sock were then warnings (Ibid.) Miranda. required by the precise warnings (1968) 260 Cal. v. Bolinski court high distinguished relied this court our which was on Cal.Rptr. 347], App.2d It emphasized Sergeant opinion. prior unpublished Prysock linked to a fu counsel were not appointed warnings concerning Byrd’s *12 “if he such as in time after police interrogation ture point [were] in States v. or trial as United in or at arraignment as Bolinski charged” in the warn (9th 1970) nothing 134. “Here ... Cir. 431 F.2d Garcia to the right limitation on the any ings given [appellant] suggested conveyed rights the clearly different from counsel presence appointed are before you the ‘to a right lawyer in including to a lawyer general, the during questioning.’” and all questioned, being while are questioned you ... at 360-361 pp. 453 U.S. v. Prysock, supra, (Cali [69 fornia 702, 2810].) at p. L.Ed.2d at S.Ct. p. v. Stewart also relied on People in its first opinion This court in holding Sergeant Byrd’s Cal.Rptr. 267 Cal.App.2d 484] In retrospect, Miranda. under inadequate were appellant to warnings First, reasons: Stewart for two misplaced was we believe the reliance that he the defendant “‘... told in that there the officer distinguishable here-, . .. attorney have his and he could to an right attorney, had a in case he appointed the Public Defender to have right he had [that] 378, 16.) (Id., reviewing fn. p. at an ...’” attorney; couldn’t afford that informing the ground on warnings in invalidated court Stewart you wish to talk thése, I mean do air your right, your right to remain and' silent^ about the easel to me at this time added.) (Italics “Randall P.: Yes." make clear “here” did not attorney he had a to an right the defendant could warning “... during interrogation. his to an attorney right court ap than that mean no more interpreted well have been time, defendant would, jail. visit some pointed attorney future would the interrogation him that telling equivalent This is not added.) As (Id., italics at p. arrived.” until the suspend attorney Court, case in the instant Supreme States the United emphasized by attorney present have an told of his right was appellant explicitly and all questioned, are being . .. while questioned, you “‘before are you 453 U.S. at v. (California Prysock, supra, during questioning.’” 2810].) at p. L.Ed.2d at 101 S.Ct. p. p. from
Second, distinguishable are not warnings truly if the Stewart case, i.e., an attorney present right in the warnings given an before and attorney “here” carries the same as the impact right decided. The Stewart wrongly then Stewart during interrogation, to a free law- right to the defendant warnings conveyed adequately Prysock. v. explained yer during interrogation California the California Court of Both Bolinski and Stewart were decided Appeal on federal grounds. warnings that Sergeant Byrd’s now this court to hold
Appellant urges law, i.e., the warnings as a matter of state inаdequate to him were guaran self-incrimination prohibition against do comply I, state section 15 of our teed to the of California under article people 231, 237; v. 21 Cal.3d Pettingill, Constitution. (People 545 P.2d Disbrow 16 Cal.3d 114-115 [127 *13 (1975) 14 fn. 10 v. Norman Cal.3d 272]; People that unless such 237].) argues 538 P.2d Appellant decision in this Court Supreme is made “the holding [United States] cards their Miranda away to [police case encourages throw officers] (Italics original.) the with severe adverse results.” warnings, and ad lib to assume is reasonable pessimistic—it Appellant’s argument unduly warning the standard Miranda law enforcement will continue to use their advise of suspects the used to language cards in order to be sure If officers to begin later court scrutiny. will be able to withstand rights that de establishing burden of from the standard their vary language, will rights their waiving have been advised before adequately fendants case. If present Sergeant as evidenced the increase substantially card, we would his from the Miranda rights had read Byrd appellant the warnings. of adequacy not be faced with the question recent law review article directs this attention to a Appellant court’s 23.1 of adults percent which that 55.3 of percent juveniles showed Miranda at least one of the four tested did not understand adequately and, the most misunderstood frequently that warnings significantly, has suspect was statement that a Miranda samples for both the warning at- have an the an before to attorney interrogation to consult right to Juveniles’ (Grisso, Capacities during torney present interrogation. Waive Cal.L.Rev. Analysis Miranda An Rights: Empirical to Waive (hereinafter Capacities Juveniles’ 1153-1154 cited Miranda).) will increase when only these numbers Appellant contends rather them stating the than police warnings,” start “extemporizing of Miranda. in the language
However, suspects we note also concluded most study Grisso at- would an understood the the court warning appoint adequately one 85.6 adults percent; if the cannot afford torney suspect (juveniles Miranda, 85.4). (Juveniles’ 1154.) to Waive Capacities supra, p. at while of comprehension further concluded that olds’ year study over, it their below that adults 23 and age was rights significantly (Juve- was not 17 to 20 old. perfоrmance persons years below age Miranda, niles’ 1157.) while Waive at p. Capacities supra, Finally, relationship concluded court bore no direct prior experience study the Miranda phrases warning (e.g., the words and in understanding consult, entitled, experience court interrogation, appoint, right), prior was increased understanding significance related to function (Juveniles’ the right Capa- to remain silent and to counsel. right Miranda, cities to 1160.) Waive p.
We first brush should mind that this keep appellant’s law; charge an armed robbery he had been arrested on previously him. He had been ad- and an had been attorney appointed represent vised of his Miranda with that In the charge. connection rights “Miranda case, rights” by Byrd he had been present Sergeant given station, and he police about minutes before his arrived at the parents refused talk with police. *14 doctrine, that the Miranda
While we fully recognize incorporated law, in is California not limited to United States Court Supreme (see Miranda as a law v. People holdings matter of federal interpreting Disbrow, 231, 237; Pettingill, v. supra, People supra, Cal. 3d 101, 114-115),4 we decline to in nullify Cal.3d warnings present (art. I, 15) case under the Constitution contrary California to the § of the States Court. holding Supreme United
The importance of deference state courts to constitutional by inter Court, of the pretations United States where the Supreme particularly of the language federal and state constitutional are provisions virtually identical, case,5 as in the present explained Justice Rich forcefully by Disbrow, ardson in his v. dissenting opinion 16 Cal. 3d People supra, 101, 118-121. Absent a of some showing unique or distinctive Califor nia conditions which would justify departure from a general principle favoring uniformity, Justice Richardson states: should defer to “[W]e leadership nation’s court in its highest of near interpretation ly identical constitutional ... language, The reason for the foregoing is that it principle promotes in an uniformity harmony area of the law which peculiarly uniquely requires them. The alternative ...
must lead inevitably to the of á tier growth shadow of dual constitution al which, interpretations state state variances, with temporal will add tо an complexity already complicated of law. body
“The vagaries and uncertainties of constitutional interpretations, par- in the ticularly Fourth and Fifth Amendment sectors of our criminal law, are the hard facts of life with which the courts, general public, and law enforcement officials must grapple This daily. condition neces- breeds sarily confusion, and uncertainty, doubt. It will not be eased or allayed by a proliferation of multiple judicial interpretations of nearly (Id., 119.) identical language.” p.
We also note that our California
Court
in a
Supreme
similar situa-
(reversal
tion
and remand of its own case
the United
States Supreme
Court) entered a minute order
a trial
upholding
court’s ruling, which
4 People Pettingill,
v.
supra, 21
contrary Michigan
Cal.3d
Mosley (1975)
v.
U.S. 96
321],
L.Ed.2d
96 S.Ct.
held
inadmissible a confession
423
the
which was
product
interrogation by police
custodial
after defendant had twice invoked his
Disbrow,
right
held,
remain silent.
988 (1978) C. In re Michael 21 opinion. its own earlier
was a reversal of ad 358, a trial court’s 579 P.2d reversed Cal.Rptr. Cal.3d 471 7] [146 fact the of the light statements incriminating mission of a juvenile’s his Miranda being given officer after probation to see his asked juvenile se invoca per this to be a Court found Supreme California rights; for an request in the same a way rights of Fifth Amendment tion States Supreme to be. The United in Miranda found attorney (1979) 442 U.S. v. Michael C. in Fare reversed and remanded Court of 197, after “the noting judgment 99 S.Ct. 707 L.Ed.2d 2560] [61 of interpretation on that court’s firmly rests California Court Supreme 207, 99 S.Ct. (442 p. L.Ed.2d at at 716-717 pp. law.” U.S. [61 federal noted the added.) Court Supreme The United States italics p. 2567], plays role the unique lawyer on the Miranda was based se of per aspect extend to a and did not criminal justice in the system adversarial to either offiсer, regard in the same posture who was not probation (442 pp. U.S. at as a whole. of justice or the system accused On re 209, 2569-2570].) pp. 99 S.Ct. at at p. 719-720 L.Ed.2d [61 affirming minute order entered a Court Supreme mand the California 17, Court, Apr. (Minutes of the Supreme the trial court’s judgment. 1980.) created th which court short, very of our land—the In court high
e given the warnings sufficiency declared the rules—has Miranda court, state appellate intermediate As an Byrd. appellant by Sergeant was ade appellant find We therefore holding. abide this we should if court-appointed attorney with a to consult of his right advised quately he was questioned one before not afford he and his could parents Sergeant Byrd. Given Voluntarily Was Freely Statement
Appellant’s of a confession the voluntariness question appeal, On surrounding of circumstances totality based a review upon C., 707, 442 724-725 U.S. (Fare Michael [61 statements. v. Sanchez 2560, 2571-2572]; People 197, 212, S.Ct. 99 L.Ed.2d dism. 642, 74], cert. 451 P.2d 562, (1969) Cal.Rptr. 576 70 Cal.2d [75 743, In re Cameron 1646]; 89 S.Ct. (1969) 1025 L.Ed.2d 394 U.S. [23 The re 633].) P.2d Cal.Rptr. 68 Cal.2d found have the trial could judge which evidence from cord must contain was the product at issue that the statement doubt a reasonable beyond rights. Miranda of defendant’s waiver intelligent knowing Cal.3d v. Braeseke (People
989
(1980) 446
384],
P.2d
vacated cause remanded
U.S.
judgment
[64
784,
(1980)
2147],
L.Ed.2d
100 S.Ct.
reiterated
Appellant was 16 old at the time of the How years offense.
ever, a minor can waive his effectively constitutional In rights. Lara 67 Cal.2d 377-378 202], P.2d old, an 18 year with a mental of less than 10 was held age years, 1/4 have his intelligently understandingly waived The court held rights.
that a minor does law, not lack the as a matter capacity even in a offense, capital to waive his rights and that the voluntariness of a con fession is circumstances, determined totality including education, age, experience ability comprehend meaning (Id., effect of 383.) аt p. confession.
No evidence admitted appellant’s blood alcohol content was during hearing, reference was made to a blood alcohol although been drawn having from at trial. After his mother appellant questioned him about he he drinking, stated was He further stated he had “dizzy.” not eaten in two days.6 mother, Prysock, following 6 Mrs. appellant’s testified that the occurred after ar her police “Q.
rival January you at the station on 1978: When went [Defense counsel] located, doing? into Randy Randy the room where was what was sitting “A. He type. in this chair that looked like a school desk And he had his laying head down on the desk. And he was handcuffed. And his handcuffs were on the chair head was laying his on the desk with his head down. and. first, “Q. spoke you Randy? Who “A. I did. “Q. you say? What did said, ‘Randy, “A. I mother is here.’ “Q. say? What did he said, ‘Son, wrong?’ up. “A. Then I said—he still didn’t raise his head I what is He said, sick, dizzy.’ T am “Q. say What did he next? said, ‘Well, said, ‘Well, Mom, “A. I what is the matter?’ He I haven’t eaten in three days. slept days.’ I in three haven’t However, notes, ap- while testified that respondent Sergeant Byrd red, like red, were eyelids had nose and that pellant runny feet, *17 not his someone was on crying, appellant unsteady who had been his unusual nothing did not smell alcohol and there was else tired or And well have been may while speech appearance. appellant or his asked for parents any- and it does not hungry, appear appellant before the for eat or for to be able to rest to thing appellant appellant interview, Furthermore, did the boys which was initiated his mother. by 30. food in the traveled in on January have with them stolen van they ,7 there is tape nothing somewhat “tired” on the but Appellant appears submission in his to show that he was into responses Byrd frightened to Indeed, re officer’s, first appellant or the behavior. by Byrd’s, arresting arrest, when at the time closer to the fused to talk with authorities as a it is have been intimidated logical appellant to believe would most arrest. result of taken at the time of his any action waive his Miranda rights initially, Byrd apparently After to refusing was a was called because appellant’s parents appellant (Byrd juvenile was never held “incommuni- with Mr. acquainted Prysock). Appellant minutes, with her cado.” After son alone for speaking approximately to talk this is established appellant Mrs. indicated wished and Prysock appellant on the by tape. that once a has an burden to show prosecution heavy especially must be subsequent
defendant invoked his rights, any questioning has (People to be of a and waiver. intelligent shown the product knowing Braeseke, However, 702.) at p. transcript 25 Cal.3d if he had subse- tape appellant shows that when asked Sergeant Byrd so, talk to him to do quently refusing appellant asked to after initially con- At the responded “yes.” hearing admissibility appellant’s on trial, fession and his mother both the renewed stated during appellant and with her. just gone along was her idea had questioning appellant both his further “involuntariness” as Appellant parents argued not of their to a free attor- result of been advised having properly right said, ‘Well, Randy.’ something wrong, And else is “Then I in the face. I looked him said, ‘Son, know, you have ‘you acting right. eyes are red.’ And I not Your You are drinking drugs?’ taking been or “Q. say? What did he ‘No, drinking.’” says, “A. He we have been on Byrd of the record tape appellant’s part 7 The actual statement was made appeal. appellant and Mrs. Prysock Mr. Although questioning. ney prior could not afford if appellant did understand testified not they no cost but prior appointed be one would only hire a lawyer involve- armed robbery appellant’s admitted Mrs. questioning, Prysock appointed private an handled month was previous ment knowingly appellant in finding reasoning The trial court’s attorney.8 the margin.9 his Miranda set forth rights intelligently waived confession was court, we that appellant’s find did the trial As the result of coercion pressure and not his own volition product of fully aware appellant shows that The evidence officers. *18 behavior the officer’s submission by was into and rights frightened Davis, 825.) Viewing 29 Cal.3d v. (People or questioning. 11, 1977, Despite Danley. with Mark robbery December was committed 8 Thearmed contention, robbery charge Decem on on
appellant’s contrary at the time of arrest signed rights written and then appellant orally ber waived his Miranda waiver. right. points All of the and 9 “THECOURT: I have considered all evidence number of issue, course, Prysock’s ability ability and And of of the authorities. the main is ... to or considering or he was of free comprehend incapable reason ... and resist were so disabled that course, And, Byrd. deciding choice in to make statement to of rational Detective was, sleep, disability any, what if would be the lack of whether he there eaten, eaten, long any had how he had the extent since and of intoxication. Lara, 365; light case[s], “I considered of v. In People have these in some Cal.2d counsel; Cameron, 487; by the Morris case cited and re Cal.2d (1968) 616], Cal.App.2d S[ch]wartzman my hearing Prysock opinion totality cogni “It is of the that after evidence was rights zant being by Byrd. and aware of that he was of responses advised Detective His rational, questions regarding rights tape appear Miranda on to be coherent and responsive. Appears proceed questions to this Court that his decision to and answer as Byrd product asked Detective was of his and his free will. rational intellect [the] [¶] therefore, feel, gave I that voluntary knowing. his statement that he was and “And case pointed capacity it is out that the minor’s [in the] S[ch]wartzman instance, rights, rights, attorney, waive his for one of the Miranda basic is a func- intelligence, tion of his compensability individual Unrelated the desires or [sic]. parents. wishes of his pointing is minor makes the ultimate decision “But the Court was out [a] [what] not, rights regardless parents his going he to waive his or what to whether or not or do. want to do not want to advised; case, Prysock freely he indi- it the Court that was that appears “In this understood; right, rights these under he and that he would waive this cated that Miranda, proceed the statement. to make mentioned, doing, lack drinking I what he had been “As I into consideration took they I from the that would have sleep and other And cannot see evidence matters. degree only impaired, only ability to interfere with his ration- appreciable [sic] [sic] reason, gave I feel he and his And for that that statement that al intellect free will. Byrd voluntary. to Detective was cases, merely on they but are the extent blood alcohol. “There are somе other I what his apparently gone And was.” into in this don’t know blood alcohol that wasn’t case. i we prosecution, most favorable to the disputed light facts in the was voluntarily given. with the trial court the confession agree Conviction Appellant’s Evidence Supports Sufficient Murder Degree Premeditated First and delib- there was no evidence of Appellant charges premeditation have involved the jury’s eration and the first degree finding “may and deliberated Mrs. determination [appellant] premeditated instructed several theories of Erickson’s ...” The on killing; jury deliberated; wilful, murder—(1) first premeditated first degree theories—burglary robbery;10 murder under two degree felony noted, the found appellant guilty murder torture. As previously jury and further found deadly weapon of first murder use of degree both circumstances to be true. special to CALJIC No. 8.20 de- regarding was instructed jury pursuant
liberate and murder and a instruction on premeditated special degree reflection required by concept.11 *19 specific to rob must jury robbery theory that the intent 10 The was cautioned on the prior fatal wounds. have been formed to infliction of the perpetrated by any “All murder which is No. 8.20 stated at time of trial: 11 CALJIC willful, aforethought is murder killing malice premeditated kind of deliberate and or arrived at or determined degree. The word ‘deliberate’ means formed of the first [¶] against weighing for and the thought and of considerations upon as a result of careful beforehand. ‘premeditated’ means considered proposed of action. The word course clear, by a deliberate in killing preceded accompanied and you “If find that the kill, was the result of deliberation and defendant to which part
tent on the of the and not un upon preexisting reflection premeditation, so that it must have been formed deliberation, it idea of is passion precluding other condition der a sudden heat of or degree. murder of the first length period in units of time the does not undertake to measure “The law an intent to kill thought pondered ripen before it can into during which uals and under rather the extent of the reflection. rived at in a short though must be which the vary with different individ premeditated. The time will truly dеliberate and time, of but test is not the duration varying circumstances. The true cold, may be ar judgment and decision A calculated time, impulse, even unconsidered and rash period of but a mere kill, will fix premeditation and as is not such deliberation it include an intent degree. a deliberate and killing first To constitute as murder of the an unlawful premeditated the reasons for and killing and weigh question killing, slayer must and consider and, de having consequences, mind the he against choice such a cides to and does kill.” A—Degree “'Special follows: Instruction special instruction stated as of Reflec In order to find a Intent to Kill and Premeditation versus tion—Deliberation [¶] on the substantially more reflection killing you must find premeditated deliberate and specific intent to mere formation of than is involved in the part of the defendant kill.” in the abetting and aiding on a theory was also instructed The jury 3.00, 3.01) that mere (CALJIC pres- and Nos. of a crime commission to take and failure of the offense the scene of the commission ence at v. abetting. (People establish and aiding do not a crime steps prevent 45].) (1946) P.2d 77 Cal.App.2d Hill [175 550, 447 (1968) Cal.2d 15
In v. Anderson which three factors Court suggested the California Supreme P.2d 942] mur- premeditated finding court to sustain lead an appellate might found sufficient which this court has of evidence der: “The type three basic deliberation falls into finding premeditation sustain did to the ac- (1) and what defendant prior facts about how categories: engaged activity the defendant was tual which show that killing in, the toward, killing— as intended to result directed and explicable (2) the de- facts about activity; what be may ‘planning’ characterized from which conduct with the victim relationship fendant’s prior and/or victim, kill which infer- infer a ‘motive’ to could jury reasonably (1) (3), in turn motive, or would with facts of together type ence of ‘a re- pre-existing was the result of killing an inference that support rather of considerations’ and ‘careful thought weighing flection’ executed’ (People rash impulse hastily than ‘mere unconsidered or Thomas, 898, 900, 7]); P.2d pp. 25 Cal.2d infer from which the could killing jury facts the nature of the about the de- particular exacting was so killing manner of ‘preconceived to a according killed intentionally fendant must have for a ‘reason’ which way life in a particular to take his victim’s design’ (2). facts of type can infer from reasonably the jury *20 sustains verdicts of show that this court of the cases will “Analysis all three types when there is evidence of first murder degree typically (1) evidence of or evi strong at least requires extremely and otherwise (Id., (3) (2) (1) pp. with either ....” dence of in conjunction 26-27.)12 case, favor viewed in the most light in the present
The entire record 307, (1979) (see 443 U.S. Jackson v. prosecution Virginia able to the 573, 2781, v. Johnson 560, 2789]; People 99 S.Ct. L.Ed.2d [61 738]), 606 P.2d affords Cal.Rptr. 26 Cal.3d 578 in- appellant’s could infer that which the jury a sufficient basis upon by the Su to be utilized continues analysis regarding premeditation Anderson 12 The 749-750 29 Cal.3d v. Murtishaw recently as as preme Court 446], 631 P.2d rash, volvement in the of Mrs. Erickson was not a act killing impulsive but a product under the premeditation Anderson analysis.
As to the first of evidence—facts activi- type showing prior planning himself admitted on and at that he ty—appellant tape trial was present in coparticipant hall when told one Danley juvenile Danley Roy that he was to “take Hipp care of” Brad Erickson’s mother. This going was sometime in the 45 Mrs. Erickson’s death.13-Detec- days preceding tive Bill also Lyon testified to an conversation with early morning appellant on 31 in which January appellant talked about Danley’s “plan.”
Appellant testified he and ended Danley up at what he later only house, found out was the Erickson two after their days escape from Center, Meyers Youth because mother was Danley’s present apparently in the home when the Danley drove there in search boys of food and clothing. Appellant further testified neither he or Danley thought any- one was at home in the Erickson residence when tried to break in they However, the back pointed window.14 out by respondent, the two did pertinent taped testimony 13 The is as follows: earlier, or, uh, “Sgt. Byrd: Okay. telling something You were me you about amet in, in, guy out camp. just in And just something you that’s before I walked this was blurted me, uh, What, this, coming as we was exactly here. what was I don’t recall Something somebody give what it was. about camp you an idea to do it or some thing. What was this? Oh, “Randall I [Danley] P.: said Mark Hipp plans, going told that his what he was to do. now, “Sgt. Byrd: Okay, Hipp? who is Roy Hipp. “Randall P.: “Sgt. Byrd: you And where’d meet him at? “Randall P.: At Juvenile Hall. “Sgt. Byrd: long ago And how was this? three, “Randall P.: About two or three weeks. “Sgt. Byrd: “Randall guy going And what did Mark tell this that he was to do? rob, going P.: He told him what all he go to do was he what was ing to do to Brad Erickson’s mom. “Sgt. Byrd: say going What’d he he was to do to her? “Randall P.: Kill her. Well, how, “Sgt. Byrd: why, why did he want to kill her? “Randall P.: I don’t know. He never did tell me. “Sgt. Byrd: “Randall R: Yes....” things you’re telling Are these me the truth? *21 14 Thedissent’s conclusion that a reasonable trier of only fact could find appellant coparticipant and attempted had prior avoid the victim to the time she discovered Danley breaking the rear window appellant’s self-serving is based on phone testimony on this frequent drive-bys issue. The tion are were and purportedly calls which involved no conversa susceptible to a interpretation—the being dual other appellant Danley that and waiting departed until the victim’s son they and could find the victim alone at the house. was home. Mrs. Erick- Mrs. Erickson ascertaining enter the house after ransacked, and and the killed, boys changed house then son was an within hour. gone motive, was appellant suggesting facts category,
As to the second (There auto theft. was arrested for in when Danley Danley with against ap- ever filed that were any charges in the record no indication tricked event.) was the car had Danley this This stemming from pellant stolen being and that Brad had reported Erickson into leaving Brad Brad Erickson However, did not know patrol. appellant to the highway to his mother’s death. prior did not know appellant and Brad Erickson the manner of the which killing sug The final about category—facts with the accords Anderson gest preconceived design—also a variety Erickson was attacked with a objects—a Mrs. requirements. a and (by poker Danley) finally
wooden stick appellant), fireplace (by Mrs. was about the head with (by an ice Erickson beaten pick Danley). times stabbed numerous in the back with the ice fireplace poker and since wounds a
pick in a motion the stab were of (apparently rhythmic The cause of death was a depth). by tеlephone consistent strangulation had in two with a a cord that been “cut” knife from tele places nearby phone. In v. Cruz 26 Cal.3d Cal.Rptr. concluded, victim’s
605 P.2d 830], killing, the court that perpetrated blows to head and a in the by only shotgun blast victim’s face to infer the manner of was so “permit[ted] killing particu jury exacting lar and that defendant must have killed intentionally according (Ibid.) and The instant preconceived for a reason.” case design pre evidence pursued sents of an that was until equally deadly beating dead, and was assured the victim was Danley, appellant, indeed perhaps unconscious. just The evidence appellant present for supports finding Mrs. purpose Danley in Erickson15 encouraging assisting killing that he Mrs. Danley’s knew of Erickson’s purpose entering i.e., house, to kill Mrs. Erickson. ante, presence noted the scene of crime is not 15 As “mere alone at sufficient to guilty if he participant, necessarily
make the accused while he is not not at does fear, prevent through may tempt to the crime such factors be circumstances be that can jury passing guilt the other considered evidence on his innocence.” (People 198].) v. Durham 70 Cal.2d P.2d
The Prosecution Was Not Guilty Prejudicial Misconduct
During Closing Argument Appellant first argues prosecutor improperly argued his personal beliefs and cites the noted in the excerpts margin.16
Appellant argues not so much that the statements were ex- improper pressions of personal opinion, but that “the prosecutor should certainly not have made these many expressions (Italics of personal opinion.” added.) portions 16 The following of the excerpts which are underscored language indicate the complained byof appellant: (1) every single “The of the State of California one of the counts that charged, guilty?’ we’ve believe the defendant to be that, (2) “In again, connection with Prysock’s Mr. remorse on the stand here in front you going judge who are ring him doesn’t true to his actions after the murder. puts He quarters money got of Mrs. Erickson’s job that she from her as an L. A. puts Times distributor would have puked my pocket. you, it in his Okay. I don’t know about but if I up did, probably walked to that scene like Mrs. Erickson’s son I would have out, guts witnessing much less the event.” (3) “Burglary entering dwelling of a house with the intent to larceny commit any house, felony. get other Now, Once I inside burglary, that it’s burglary. it’s if I something get prosecuted take shows jillion once I inside that house—I’ve of these—that part some intent on the person of the who came in the house to show that he did have that intent when he came in. The fact that something he took shows that circumstantially.” (4) you “If come to the ridiculous Prysock conclusion that had the intent to commit burglary attempt and that burglary to commit that was frustrated and that when he
ran around the house and went in that front door he didn’t have the intent to commit burglary, you just you then right that, let him walk out of here. That to me—if believe (5) says any there’s no evidence of “[Defense intent to kill when Prysock counsel] en- house, tered that and I don’t believe that’s true. I don’t believe it’s true that Mr. Prysock Erickson, mother, didn’t know Ralph all about Brad Brad Erickson’s Phinnis [jfc] guy Danley pickup from; stole that it’s incredible. Honor, Your excuse me. It’s unclear to me whether or ""“[Defense counsel]: not coun- stating personal stating sel is opinion or it based on the evidence. evidence, My personal opinion based your on the Honor. “[Prosecutor]: you.” Thank “[Defense counsel]: “Now, person (6) murder, get up-and accused of it’s not unusual for them to lie on Okay. Prysock says the stand. But Mr. on the stand that he didn’t hit—excuse me—he doesn’t remember where he hit Mrs. Erickson when he hit her in the chair. He doesn’t part body. just remember which He doesn’t memory remember. His fails him on point. taped says On the Why just statement he he hit her on the head. doesn’t he come out and state it?” type particular case, my opinion, “This of conduct in this is one of the most county, you may brutal and atrocious crimes that’s ever been committed in this live long you’ll depraved time before hear about one more than this one.” certainly charges “This is a crime that brought, beyond any deserves the we they’re reasonable doubt true?*
997
for a prosecutor
argument
of legitimate
“within the domain
It is
adduced
the evidence
drawn
from
his deductions
conclusions
to state
that,
opinion,
in his
to the
trial, and,
jury
to relate
particularly,
more
crime charged.”
is
of the
guilty
defendant
shows that the
thе evidence
140,
Cal.Rptr.
144
(1968)
Cal.App.2d
268
Dillinger
v.
[73
(People
in
a witness
light
credibility
on
He
also comment
720].)
may
514,
(1966) 65 Cal.2d
Roberts
v.
presented. (People
all the evidence
in In re
point
on
412,
P.2d
mod.
420],
421
Cal.Rptr.
520
another
[55
833,
892,
481].)
471 P.2d
(1970)
Cal.Rptr.
Cal.3d
Roberts
[87
context,
made,
in
relate to
when taken
statements
Most of the
evidence,
the evidence.
from
reasonably arguable
or inferences
brutal and
nature
nauseating
to the
While statements relating
not
to an
susceptible
are
unnecessary,
they
crime were overstated and
other
based on information
was
prosecutor’s opinion
inference
more
has
inflammatory
at trial.17
even
Language
than evidence adduced
738,
(1974) 11
Thornton
Cal.3d
People
been held permissible (e.g.,
on another
267], disapproved
523 P.2d
762-763
Cal.Rptr.
[114
Cal.Rptr.
25 Cal.3d
v. Flannel
point
84,
Importantly, (No. 16, ante, but for clarifica request not an objection 5 in fn. 27 Cal. 3d
tion.) v. Green Therefore People first time on ap this issufe for the 468], raising 609 P.2d precludes “cured” harm from any since a admonition would have peal, timely misconduct. if were deemed to constitute they statements even prosecutor remains to be discussed. The One additional incident out, “Now, Mr. points Danley’s as defense counsel stated as follows: I’ll turn Mr. Danley in this trial. have my here. He hasn’t testified not to privilege has a Fifth Amendment Mr. July. Danley on 31st any would have made state Danley If testify. come in here and Okay. Erickson, heard about police you’d to the Mrs. admitting striking
ment and counsel then approached counsel objected it in court.” Defense state- that such a maintained reporter. prosecutor with the bench closing argument prosecutor opened his 17 Itshould further be noted that the following my opinion of I feel “[Ajnything say only I what jury with the comment: things; things you can certain from these infer the evidence shows. The evidence shows giv my argument I things Throughout will be happened. other have the course my already I shows. I’ve formed ing you my opinions what feel the evidence from case; opinion you this not.” have ment, made, if would have been declaration interest and against penal *24 admissible if called Danley had been then De testify testified. fense counsel maintained it have would been unethical for him to call in Danley trial light previous severance relied on Evidence. discussion, Code section After a minutes 930. few the court sustained the defense and admonished the as “The objection follows: defense jury is well objection taken the should it in to call jury disregard regard outset, Remember what I told ing Danley. this is you [¶] mind, and it argument Keep is evidence. that in I’d jurors. Again, also advise if you that don’t you agree any attorney’s ver [of] recollection, sions of the fact or that’s why, your purview, because you facts, are the triers of not us.”
Respondent contends and we that if the remark constituted agree misconduct, admonishment prompt cured harm. Even if any we misconduct, should find the statement to have been the test of prejudice is whether it is that a result more “reasonably probable favorable to the defendant would have occurred had the district refrained from attorney the comment attacked the defendant. v. by Beivel- (People [Citations.]” (1968) 521, man 70 Cal.2d 447 Cal.Rptr. 913]; P.2d People [73 v. Bolton Cal.3d Cal.Rptr. 589 P.2d 396].)
findWe that reasonable would have reached the same ver- any jury even dict in the absence of the remarks. prosecutor’s Under
Appellant’s Conviction Penal Code Section 135 (Destruction Was Evidence) Improper who, Penal Code 135 provides: section that “Every person knowing book, record, or paper, instrument other matter or any writing, thing, trial, is about to be upon evidence or produced any inquiry, investiga- whatever, law, tion authorized willfully destroys conceals same, with intent it from thereby prevent being produced, guilty (Italics added.) a misdemeanor.” contends that the evidence is insufficient to establish that
Appellant crime, and shoes burned himself and after the clothing Danley “about in evidence knew. produced” were to be he so and/or Respondent asserts that the evidence sufficed because the clothing would clothing was burned after crimes to which be evidence and or in was imminent investigation an knew that appellant because progress. 336], 105 Cal.App.3d
In Fields where of section conviction for violation affirmed a this court inmate, tоilet jail down defendant, marijuana flushed a county jail it during and seized drug sheriff had discovered deputy after a to evidence the statute applies This court held routine search. le even no formal though investigation, in the of a police
seized course is con interpretation appellant’s were proceedings pending: “Again, gal *25 statute; the words ‘or investiga it ignores to the fair of the trary import of the mari (italics added). and examination The seizure tion whatever’ of possible police investigation an authorized was juana by Deputy Ray once the deputy in be presumed It must activity jail. criminal seized, article he would himself as to the nature of the had satisfied would have to his and the articles reported superiors have the incident a criminal prosecution been for use in future sequestered possible inmates. jail knew that obviously posses- in the
“Appellant, prisoner county jail, he his fellow inmates sion was unlawful and that marijuana of Thus, when appellant could be for prosecuted possessing marijuana. it the toi- from Officer and flushed down Ray contraband
grabbed let, it prevent being he the contraband to from intentionally destroyed ’ ‘trial, The in evidence’ .... ‘produced inquiry investigation at had commenced when contemplated investigation statutory inquiry 345-346.) (Id., at pp. seized evidence.” Deputy Ray (1975) 53 Fields relied on dicta in v. Court People Superior (Reilly) in 40 which held “where the Cal.App.3d Cal.Rptr. 504], suspect, article, arrest, is to an fear of imminent disclosure or observed secrete seizure, was subject which if left in would have been to there plain sight in ar- no unreasonable search or seizure constitutionally retrieving ticle the place placed from where the was observed to have it.” suspect officer, window, (Id., 48.) A a motel saw defen- p. police through dant’s driver’s license. After the confederate a camera and working known, officers made their defendant was observed to hide presence be wallet and what a traveler’s checks container. offi- appeared cers entered and arrested the counterfeiters. The court remarked at it 49: “It must be borne in mind that is a criminal page also offense (Pen. Code, 135. See v. People Mijares, or conceal evidence. destroy § 422; (1970) 514, 6 Cal.3d v. 3 supra, People Cal.App.3d Lee .) .... Cf. People Edgar v. Cal.2d 174-175 . .. Here, unlike v. Edgar, there was an attempt to conceal the evidence witnessed the officers. It would be incongruous pro- hibit officers from seizing evidence the misdemeanor which committed their presence, while at the same time their upholding (Fn. omitted.) to arrest the right perpetrator.”
Both Fields and cited 6 Cal.3d Reilly People Mijares 1115], P.2d which the Supreme Court held that a narcotic handling disposal for does not con solely purposes stitute possession, but observed “certain actions relating abandon ment of narcotics fall within the proscription also section 135 may Code, the Penal the destruction or forbidding concealment of evidence.” watched, As a civilian parked car, witness leaned inside a re Mijares therefrom, Fields, moved an and threw it into a In object field. nearby this court questioned whether section 135 would to the apply Mijares question facts. “We of Penal Code section 135 to the applicability fact situation since it would that the Mijares appear defendant’s act *26 the disposing drugs prior occurred to commencement any po lice it investigation. police Nor can be said the was ‘about’ investigation (105 to commence when at disposed of Mijares drugs.” Cal.App.3d 346, 4.) p. fn. is, on point.
Fields last word The instant case historically, pre- sents a first as to evidence is about to be impression point when pro- duced in police department investigation. or law enforcement In other words, should section 135 to the destruction of which the apply articles know—would, if in defendant knows—or should discovered an investi- imminent, which the knows—or gation defendant should know—is have evidentiary value. to phrase Penal Code section “about be evidence produced trial, whatever” an
upon or connotes immedi any inquiry investigation Fields, In acy temporal closeness. authorities had seized already the evidence. In had discovered it and seizure was immi Reilly, they nent. the statute would where the defendant knows Presumаbly, apply (Cf. that the officers are en route with a search warrant. v. Ed (1963) 60 173-174 383 P.2d gar Cal.Rptr. Cal.2d 449] mother, defendant’s after de sought incriminating photos from [officers fendant overheard her to hide them. her initial refusal to Though asking to violate that give implies them officers did not court subse- § v. Santos section]; People violate the concealment quent would charged [defendant, 402-403 Cal.App.3d 678] The con- to “Get rid it.” murder, wife telling with firearm overheard Code, 980) (Evid. “does privilege marital communications fidential § to commit a crime the other made enable not cover communications (Evid. being of evidence Code, 981), or concealment destruction § (Pen. Code, 135.)”].) crime. § is about object know that the
The statute that the actor requires whatever the statute’s exact We conclude that produced be in evidence. failed prosecution herein falls short because the the evidence
meaning, in fact had started investigation law enforcement any show particular for the looking was or would be law enforcement and/or statute given, or a similar limiting interpretation item. Unless this ended, but “victimless” least all open would appear virtually crimes. That
Admission Evidence Was With Appellant When the Latter Was Arrested Was Danley Proper . objection ground relevancy, prosecution Over on timely on the fact that the latter was permitted appellant cross-examine car theft. when was arrested for (innocently) Danley Danley law It be the victim’s son this theft to reported will recalled that had this fact at appellant enforcement. There was no evidence that the knew *27 arrest, was when present the time of the but admitted that he appellant was to “take hall resident that he going told a fellow Danley juvenile care of” Mrs. Erickson. of appel- those disprove portions
The and answer tend to question Brad any he did not know of in which he testimony alleged lant’s his at trial that or and tends to statement disprove Erickson his family tell- when he “overheard” Danley he did not know what meant Danley he of” was “take care going hall resident ing another juvenile Brad Erickson’s mother. of relevance discretion deciding
A is vested with wide trial court Cal. Cal.App.2d v. Warner evidence. (People the discretion to admit It within the trial court’s Rptr. 160].) was testimony. Instruction Was the Flight Warranted Evidence the court
Appellant contends trial erred when it gave prejudicially 2.52, CALJIC No. the standard instruction.18 He con- flight implicitly cedes that evidence of existed but flight argues the instruction might have been used jury the to find state of mind at the time appellant’s committed, claimed, the crime which it is is contrary to Anderson, 70 Cal.2d 32-33.
Respondent asserts Penal Code section 1127c mandated in- struction, that the instruction did not direct the to consider jury flight state, as on bearing appellant’s mental and that other instructions in- formed jury as to intent required.
Penal 1127c Code section “In provides: any criminal trial or proceed- ing where evidence flight of a defendant is relied upon tending show guilt, court shall instruct as follows: jury substantially
“The crime, flight person after commission of a immediately committed, or after ishe accused of a crime that been has is not suffi- which, cient in itself to establish his but is a fact if guilt, proved, consider in jury may deciding guilt or innocence. The weight to which such circumstance is entitled is a matter for the to deter- jury mine.
“No further instruction on the need be subject flight given.” Appellant has cited no authority which that the suggests instruction was improper here. Anderson did not involve CALJIC 2.52 No. Rather, flight evidence at all. it concerned other evidence of cognizance guilt. essence, In appellant’s argument to be that appears instruction should been have modified to limit the effect of to issues other flight *28 than appellant’s mental state. 18 CALJIC No. 2.52 stated as at time flight person follows of trial: “The of a imme
diately crime, after of or the commission a after he is accused aof crime that has been committed, which, guilt, is not sufficient in itself fact proved, to establish his but is a if may by you light be considered the all proved deciding question of other facts in the guilt weight of which innocence. The such circumstance is entitled ais matter jury the for to determine.” the instruction. duty modify sua The trial has no sponte court Must Be on Count One Sentence Appellant’s Modified Life Be Circumstances Should Finding Special the Imprisonment; of Stricken, the Case Remanded Disposition and the for of Enhancement. Use Weapon of the of the time of the commission a
Appellant, juvenile without of fense, possibility to life imprisonment cannot be sentenced Davis, 827-832, 814, Cal.3d Supreme In v. supra, parole. People Penal Code section of former history Court examined the language interpreted it be as life authorizing 190 et and concluded could not seq. under for 18. parole persons age without of
imprisonment possibility imprisonment, Davis’ be reduced to life The court ordered that sentence statute. applicable alternative sentence authorized only et as seq., Davis holds former Penal Code section 190 read Since also whole, circum charging special offers no basis for even minors stances, we determination of circumstances jury’s special conclude Davis, 3d at in the case was a Cal. present nullity. (People 831-832.) shall strike the circumstance pp. Accordingly, special we findings.
At trial court mentioned the of a finding sentencing, jury weapon use enhancement and the fact used a appellant weapon mentioned and as a aggravation probation, factor reason to in the potential deny context of count discussing one.
When parole the life without sentence possibility was im one, on count made of posed no mention was the Penal Code section (b) finding subdivision jury. separate abstract for count one reflects the Penal Code section judgment subdivi (b) sion apparently but finding appellant pursu neither sentenced ant to this enhancement nor does record reflect trial finding enhancement, court ever its strike exercised discretion to as pro 1170.1, Therefore, vided in Penal section subdivision Code the case (g).
must be remanded for the limited as to use of a purpose resentencing weapon in with count one. v. Williams deadly conjunction (People (1980) 518-519 In Cal.App.3d Cal.Rptr. 169].) the event the trial court does not its discretion strike the additional exercise enhancement, term of for the punishment deadly weapon use the one- term of for must be deadly weapon use of year punishment stayed, to the v. Walker рursuant reasoning Cal.3d *29 243-244 P.2d Cal.Rptr. of 306], finality pending appel lant’s conviction and service of sentence count on one.
Other Sentence Modifications
trial
The
court also imposed deadly
weapon enhancements
to both
two
counts
and
(robbery)
three (burglary).
Appellant contends
the use
and enhancement must be stricken
finding
as to one of these
counts. Appellant relies on In re Culbreth
3d
17 Cal.
330 [130
Respondent’s premise appears burglary, the in- theft, tent was to an robbery commit is assaultive simply version of theft with the same intent. Therefore underlying only one deadly weap- on use enhancement was Even if proper. different technically intents existed, respondent would be Culbreth holds “if all wrong. that offenses are incident one charged objective effectively comprise transaction, an indivisible then section 12022.5 be invoked may only (Id., once and not in with the accordance number the victims.” at 333-334.) pp. fortiori,
A the same result in a single-victim should follow indivisible transaction, like instant case. appropriate provide is to remedy modify judgment period imprisonment pursuant serve one additional
appellant only (b). (Id., 335.) However, Penal Code section subdivision p. Culbreth, broad no regardless language striking underlying is This court need insure one finding required. only only finding Walker, 232, 243-244.) effectuated. Cal.3d (People supra, 18 matter, court, trial practical As a this result was achieved when the Code of sen- pursuant stayed Penal section execution properly three, course, tence as to counts two and the additional including However, event enhancement terms for each. in the that the Penal Code vacated, section 654 should be the additional term as to count stay *30 of sen and service conviction finality of pending must be stayed three (In re Cul to become two, permanent. the then stay tence on count breth, the 333-334.) modify judgment We will pp. 17 Cal.3d at provide. to so toas the imposed to sentences “merge”
The trial court purported to counts two term. As count one life six into the through counts two (1977) 18 Cal.3d (People three, this was inappropriate Miller and The of execution 552]). stay 558 P.2d 886-887 [135 five, As noted was proper. and the merger As to counts four was proper.
above, as to count six. we the judgment have reversed is to sentenced provide appellant is modified to judgment life, (murder), to term the count one a state as. follows: On prison stricken; for (robbery), are on count two special findings circumstances term for one-year additional plus the middle base term an three-year is sentence as to count two execution the deadly weapon; use of one, at and sentence on count until of the conviction stayed finality three on count permanent; (burglary), time the shall become stay which an additional term for plus one-year middle base term for the two-year three shall run concurrently sentence on count weapon; use of deadly two; to as execution of the sentence as count with sentence to count is of the and sentence on count finality three until conviction stayed further, one, permanent; become stay at which time shall to is vacated as counts two event that the of execution of sentence stay three, use of a deadly weapon execution of the additional term for as until of the conviction and sentence stayed to count three is finality two, on permanent; shall become as to count at which time stay term; (vehicle theft), upon count four for the middle base two-year one, on count sentence as conviction sentence finality one; on on count imposed count four is into the life term count merged months; six county upon is sentenced for five (escape), appellant jail one, on count sentence as and sentence conviction finality Judgment the life term on count one. imposed count five is into merged for the limited of re- purpose count one is and remanded reversed In the event the trial court weapon. as to the use of a deadly sentencing punish- term of its discretion to strike additional does exercise enhancement, term for use of one-year ment for the deadly weapon of conviction sentence pending finality is deadly weapon stayed six, is reversed. The trial court count the judgment on As to count one. reflects judgment which an amended abstract directed to prepare
such and forward certified of the amended ab- modification a copy Corrections, Department stract to the of which shall file same. (C. V.), J.,*
Stone concurred.
ANDREEN, J. I respectfully dissent.
I will
attempt
demonstrate that even if a
Miranda1
proper
warning
was given, there was insufficient
of a
proof
knowing
intelligent
waiver of
right
the
to the
assistance of
court-appointed attorney prior
that,
to and
the
will
during
questioning. Following
I
discuss
I be-
why
lieve that
Supreme
the
Court’s
in
opinion
(1981)
v. Prysock
California
696,
support finding premeditation of question will finally, major- ity’s that Penal holding Code section 135 does apply to the facts of case. this
Knowing Waiver Counsel Sergeant did Byrd not advise defendant that he had a to a free right attorney room. Instead interrogation the officer advised the mi- nor there, defendant of his to have an right then diverted the attorney discussion an into irrelevant dissertation of the to have right parents present, by followed the statement that he had right appointed to an attorney. It is our to examine whether a duty trial court could make a finding, standard, using beyond-a-reasonable-doubt that the defen- dant connected the two statements and inferred together therefrom that his rights included that of an having appointed attorney present prior to during questioning.
Circumspection must be exercised when this making determination Thus, because of the (1967) 1, defendant’s In re age. Gault 387 U.S. 55 * Assigned Chairperson the Judicial Council. 694, 1602, (1966) 1 Miranda v. 384 U.S. Arizona 436 L.Ed.2d 86 S.Ct. 10 [16 974], A.L.R.3d 360, 2 People (1976) Cal.Rptr. 272], Cal.3d Disbrow 115 545 P.2d [127 quoting People Cal.Rptr. v. Brisendine 13 Cal.3d 549-550 [119 1099], P.2d 527, 561, when the waiver of 1428], discussing 87 S.Ct. L.Ed.2d minors, stated: the constitutional self-incrimination against privilege obtained, “If ... when an admission was counsel not presеnt was voluntary, must be to assure that the admission greatest care taken also it was but suggested, the sense not not coerced or only in In re it stated product ignorance rights.As was not the J. “The Anthony Cal.App.3d 238]: accused’s burden is to establish that an statements upon prosecution *32 than the are the is in the case of voluntary; greater juvenile burden ” case of an adult.... Grisso, in Gault has found verification Ju-
The expressed caution veniles’ An Rights: Empirical Analysis to Waive Miranda Capacities (hereinafter cited as Juveniles’ Capacities (1980) 68 Cal.L.Rev. Miranda). to Waive results, however, The should be study’s used caution, since in the statement of Miranda some the rights, subjects were an which word given incorporated “interrogation,” admonition the whereas Sergeant used the word a more Byrd “questioning,” commonly used word. If the had used instead of study “questioning” “interroga- tion,” one may that would expect greater comprehension have been (See obtained the test by the low score of those who subjects. relatively gave an to adequate test the response vocabulary word “interroga- tion” 1153.) at p.
Another factor which is to the impossible fact the em- weigh that pirical research was conducted in a social relatively unthreatening situation and that setting—one differs from that markedly faced the defendant here. allowances, however,
After making these one is struck with the fact that “The most Miranda misunderstood was frequently ... warning statement has the to suspect consult an in- right before attorney and to an terrogation have attorney present during interrogation. (zero-credit) Inadequate of this descriptions warning were given by (Juveniles’ 44.8% of the and 14.6% Capacities juveniles of the adults.” Miranda, to Waive 1154.)3 at p. majority’s emphasis part 3 The study juvenile on that that concluded that most
suspects could warning understood the appoint attorney the court would an suspect if the misplaced. not afford one is The before us is issue whether the defendant knew Likewise, appointment that the prior precede interrogation. could majority’s reference to experience creating understanding court as increased must be read in the context report. youths significantly higher comprehension entire who had scores in al- any lack nutrition sleep
We
the effects
may disregard
been found
defendant
ingestion
having
against
coholic
However,
has
that the ad-
even
found
though
majority
court below.
muster,
should
its
opacity
ambiguity
monition meets constitutional
that he had
whether the defendant knew
be considered in determining
during
to and
prior
questioning.
to a free
right
lawyer
did
Sergeant Byrd
It cannot be
that the warnings given by
denied
that,
he
if
could not afford an attorney,
advise defendant
he
expressly
have
at no cost
to and
appointed
prior
during ques
had a
one
right
have
was
at one
that he had a
point
right
The defendant
told
tioning.
At
he
in
an
another
attorney
questioning.
point,
before and during
all,
ap
to have a lawyer
formed: “... You
have
uh—if—you
right
the Unit
Although
at no cost
pointed
represent
yourself....”
you
admonition,
it
adequate
ed
found this to be an
Supreme
States
Court
*33
the
the
in reference to
nevertheless
an inference that
discussion
requires
right
the
to have a law
of a free
relates back to
appointment
attorney
were
con
yer
expressly
and
The two
not
prior
during questioning.
misunderstanding
juveniles
In
face
the
together.
nected
the
of
Miranda,
the
right
as to this
and
to Waive
Juveniles’ Capacities
Gault,
it be
that there is
how can
said
caution
the court
expressed by
a reason
the
could have found beyond
evidence from which
trial judge
a knowing
was the
of
product
able doubt
that
the statement at issue
v. Brae
rights? (People
Miranda
and
waiver of defendant’s
intelligent
684,
691,
384],
P.2d
(1979) 25
602
Cal.Rptr.
seke
Cal.3d
[159
(1980)
L.Ed.
Although go asked to examine, Prysock to note Mrs. we it is relevant which must immediately almost with about counsel questions off the record some admonition, tape to the when returned they and Sergeant Byrd’s after hire their ‘to option related to sergeant with the colloquy “their ensuing 355, 365 453 U.S. (California Prysock, supra, lawyer.’” (dis. Stevens, J.).) 696, 704, opn. 101 S.Ct. L.Ed.2d 2812] that was not in felony The defendant prior referrals. had or more were those who two category. I can draw but conclusion: The failed to show prosecutor beyond one reasonаble doubt the and waiver necessary knowing intelligent right prior to a court-appointed attorney during questioning. Privilege Against Self-incrimination
California’s station, after taken to the the defendant was Shortly police giv- being en a Byrd. statement of Defendant declined to rights by Sergeant advisement, talk. The record does reveal exact content of the the officer testified that he read a recitation merely rights. of Miranda (The does not is a majority suggest presumption there statement Proof adequate. contents the statement should be a matter of the state’s burden of proof.) called,
Defendant’s parents were came station. About they talk, minutes after defendant refused to his mother entered room where her son was located. She talked him about minutes. De- fendant’s mother exited indicated defendant wished to discuss events of earlier in the A few day. minutes after this Sergeant Byrd located; reentered the room where defendant was defendant’s parents followed. Byrd taped took a statement from which was ad- defendant mitted into evidence.
A. The Advisement
The issue can be presented by selecting portions statement pertinent testimony given by Sergeant off-tape to an discussion. Byrd The tape reflects the following:
“Sgt. Byrd: You have the to talk to a before are right lawyer you questioned, present have him with you you while are being questioned, and all during the Do you understand this? questioning.
“Randall P.: Yes. also, “Sgt. You Byrd: juvenile, you have the to have being right your parents which present, are. Do understand they you this?
“Randall P.: Yes. here,
“Sgt. Even if Byrd: they you weren’t have Do you’d right. this understand this?
“Randall P.: Yes. all, lawyer ap- have have uh—if—you right You Byrd:
“Sgt. understand this? Do yourself. you at no cost to pointed represent you “Randall P.: Yes.” the Record
B. Conversation Off mother, Mrs. thereafter, of the defendant’s request at the Shortly then transcript record. went off the the conversation Prysock, continues: we are off the tape, asked get Mrs. Byrd: Prysock, you
“Sgt. Okay, we, hours, on now is 22:55 the time tape back on going record, air, record for uh, ap- time, we were off 1/30/78, asked, you time decided you During five minutes. proximately lawyer to hire whether getting, time to think about wanted some not. it. ’Cause I didn’t understand
“Mrs. P.: ahead want Byrd: you go And have decided now “Sgt. you this time? present do not wish a lawyer you “Mrs. That’s right. P.: is that you way, And I have not Byrd: persuaded any
“Sgt. correct? No,
“Mrs. have not. you P.: *35 I noth- And, Mr. is that correct that have done Byrd: “Sgt. Prysock, this? to, or to on with lawyer go to hire ing persuade you to (Italics added.) “Mr. P.: That’s right.” trial, to a conver- was in reference Byrd
At cross-examined Sergeant Did you “Q. the statement taken: sation after [Defense counsel] it how much would cost Randy ever to or Mrs. or Prysock mention Mr. an attorney?
them to hire I “A. think Mr. Prysock made some remarks to me he didn’t that money have to hire an And I attorney. told him that the of an at- price torney that for the Randy qualified Public Defender’s office.
“And that price the this would attorney peo- that be the proper contact, ple to and that had some excellent I believe is they attorneys, (Italics the statement added.) I made to him.”
C. Discussion Arizona, In Miranda v. 384 U.S. the United States Su Court preme held: an individual is taken into or custody “[W]hen otherwise his deprived of freedom the authorities any significant way and to subjected the questioning, self-incrimina privilege against tion is jeopardized. Procedural be safeguards must to employed protect the and privilege unless other fully means are no adopted effective tify his person right silence and to assure that the exercise of honored, will right be scrupulously measures are re following quired. He must be prior warned that he any has the questioning silent, to remain right that anything he can be says used him in against law, a court of has he right an presence and attorney, he cannot an one will attorney be him appointed prior if afford for to any questioning he so desires. to exercise Opportunity rights these if must be afforded to him throughout After such warn interrogation. have
ings given, him, been and such opportunity afforded the individual may and knowingly waive these intelligently and rights agree answer questions make a statement. But unless and until such warnings waiver are trial, demonstrated at no prosecution evidence ob tained as a result of interrogation (Id., can be against used him.” at omitted, 478-479 pp. L.Ed.2d p. added.) fn. italics [16 726] In our earlier opinion, we held that defendant’s confession was pro- cured in violation federal Miranda because rights “he was not an givеn adequate that he could have the warning services of a at- free before torney during interrogation.”
In so
we relied
holding,
decisions,
on two appellate court
v.
People
Bolinski
In 705, 718, 723, v. People supra, Cal.App.2d prior a statement giving the defendant was told one officer if by that he was him that told counsel. Another officer appointed would be charged he the in Illinois and sec- were then The lawyer. parties he had a right in one appoint that the court would “I advised him ond officer testified: furnished for would be defender public and that “‘a Riverside County” inadequate. were these advisements court.’” The court held him the Stewart, held that a Cal.App.2d warning supra, v. People and attorney, to an he had right the defendant “‘... that which told to have here; he had a right his ... attorney he could have [¶] [that] attorney; afford an in case he couldn’t appointed the Public Defender he appointed, to be that the Public Defender that if he didn’t want and the appointed would be and this attorney attorney could an pick 16.) (Id., The court him,’” p. at fn. not adequate. Court for that defendant “It that the statement at 378: is argued stated page and satisfies Mir Bolinski ‘here’ distinguishes have might attorney warn the to show that burden is on We agree. anda. do not defendant under were that given, rights all the constitutional ings of waived intelligently them, voluntarily he thereafter stood and that the against must be resolved warnings in the those rights. Ambiguities bench, well could warning case at As recounted in the prosecution. court-appointed than that the to mean no more have been interpreted time, This is visit defendant would, jail. at some future attorney until suspend would interrogation that the him equivalent telling arrived.” attorney stronger implica- contained warnings Bolinski that We noted would be later. provided free counsel that warnings tion than the instant in that there the instant warnings resembled warnings But the Bolinski prior question- be provided would that free counsel was no statement if desired. ing closely paralleled warnings the instant
We also observed
he
have his
could
was told
There the defendant
warnings.
Stewart
defender
“here,”
public
to have
right
that he had the
attorney
Stewart,
378.)
In
Cal.App.2d
p.
supra,
v.
appоinted. (People
a lawyer
to talk to
right
that he had a
told
instant case defendant was
have a lawyer
had a
right
that he
questioning during
before and
the defendant
case was
In neither
him at no cost.
to represent
appointed
room.
interrogation
be
present
could
attorney
told that the free
696, 101
L.Ed.2d
1013
the United States Supreme
opinion
Court held that our
was er-
original
ror as follows: "...
in this
police
conveyed
case
to
fully
[defendant]
his rights
required
as
Miranda. He was told of his
to have a
right
lawyer present
to
prior
and his
to have a
during interrogation,
right
lawyer
at no
appointed
cost if he could not afford one. These warnings
conveyed
right
have a
if he
lawyer appointed
could
[defendant]
not afford one
to and
prior
during interrogation. The Court of Appeal
erred in
inadequate
that the
were
holding
warnings
because
simply
(453
the order in which
were
at
they
given.”
U.S.
361
at
p.
L.Ed.2d
[69
702,
p.
omitted.)
At the Court Supreme remarked that our original opinion laid down “essentially a flat rule requiring that the content Miranda warnings’be virtual incantation of the precise language contained in (453 opinion.” Miranda U.S. at p. p. 355 L.Ed.2d at 101 [69 S.Ct. at p. 2807].) man,
After setting up this straw
Court knocked it
Supreme
down
“Quite
that:
observing
Miranda itself
contrary,
indicated that no
talismanic
required
incantation was
its
satisfy
strictures. The Court
in that case stated that
required and the
warnings
waiver neces-
‘[t]he
sary in
are,
opinion
accordance
our
in
today
the absence
fully
equivalent, prerequisites to the admission of
statement
any
effective
made by a
(453
defendant.’
The Supreme Court distinguishes Bolinski follows: “In both in- stances warnings] reference to appointed counsel was linked to a [of future point time after police did interrogation, and therefore not ful- ly advise the of his suspect right appointed counsel before such inter- rogation.
“Here, contrast, in the nothing warnings given respondent suggest- ed limitation on the any right to the presence appointed counsel dif- ferent from the clearly conveyed rights lawyer to a in general, including right ‘to before are lawyer you questioned, ... while are be- you ing questioned, (453 and all during the questioning.’ U.S. [Citation.]” at pp. 2810].) 360-361 L.Ed.2d at p. p. S.Ct. at
The Supreme Court noted our reliance on Stewart but made no effort (453 to distinguish p. it. U.S. at p. L.Ed.2d at S.Ct.
p. 2809].) *38 to terms to for come failing the majority
The dissent criticized required by the information was finding given our that defendant prior counsel appointed of presence to the right Miranda—the p. L.Ed.2d at (453 p. at 362 if U.S. desired. during questioning [69 2811-2812].) 101 S.Ct. at pp. below, defendant’s confession I believe that stated For the reasons con- self-incrimination against of his privilege in violation procured was Constitution, which I, 15, of the California tained in article section in a criminal cause not ... be compelled “Persons provides may that themselves,...” be a witness against v. Cal.3d Pettingill
In
People
confes
defendant’s
Court held that
Supreme
P.2d
the California
108],
it was
because
under the California Constitution
sion was inadmissible
de
the
after
by
police
renewed
product
the
of a custodial interrogation
to remain silent.
that he wished
had twice indicated to them
fendant
“If the individual indicates
arose from Miranda’s
rule that
Pettingill
he wishes
manner,
questioning,
during
at
time
or
any
prior
any
Arizona,
(Miranda v.
silent,
must cease.”
interrogation
to remain
omitted.)
fn.
p. 723],
L.Ed.2d
pp.
Pettingill this state.” Those of the law of Miranda have part become “an intrinsic course, interrogat include, to the effect that warning standards and that if attorney, of an presence to the right ed defendant “has the any him prior one will be for appointed attorney he cannot afford an Arizona, (Miranda 384 U.S. at if he so desires.” questioning whether, un to decide It remains for us p. 726].) L.Ed.2d at p. 479 [16 warned. law, so adequately der California defendant He was not. explained importance particular require-
Miranda itself of this ment: “The circumstances can surrounding in-custody interrogation *39 operate to overbear the will of one made aware of very quickly merely Therefore, his to have privilege by interrogators. right counsel at the present is to the interrogation indispensable protection of Fifth Amendment under system we delineate Our privilege today.
aim is to assure that the individual’s lo choose between silence and right speech remains unfettered A throughout interrogation process. once-stated delivered those who will warning, by conduct interroga- tion, cannot itself suffice to that end require those who most among knowledge of their A mere rights. by the is warning given interrogators not alone sufficient to that accomplish end. Prosecutors themselves claim that the admonishment of the to remain silent without right more ‘will benefit the recidivist only professional.’ and the Brief for the Na- curiae, tional District Association as amicus Attorneys p. pre- 14. Even advice liminary given to the accused his own be by attorney can swiftly Illinois, overcome by secret interrogation process. Cf. Escobedo v. 478, 485, Thus,
378 U.S. n. 5. the need for protect counsel to the Fifth Amendment privilege comprehends not a merely right consult with counsel prior to but also to have questioning present counsel during any Arizona, (Miranda if questioning, the defendant so desires.” v. supra, at pp. U.S. 469-470 L.Ed.2d at p. 721].) The need for clear advisements in this area particular is underscored by the Grisso which study showed that 55.3 percent juveniles 23.1 percent adults tested did not understand at adequately least one of the four Miranda The warnings. most frequently misunderstood Miranda warning both was the samples statement suspect a for has the right to consult an before attorney and to have an interrogation present (Juvenil attorney during interrogation. Capacities to Waive Miranda, 1153-1154.) pp. man, v. a Prysock down, sets straw up knocks him lip pays California Miranda, and, view,
service to in my proceeds it to honor in the breach. per The curiam opinion explain fails how the instant advisements were a “fully effective equivalent” to the articulated in Mir- warning anda. The three dissenters were persuaded. not Neither am I. (first methodology selected by Sergeant here a Byrd statement of right have a lawyer before and during questioning, then the several parents to have his to the relating right comments
totally gratuitous an ap- availability advisement of the present, by general followed to a traditional equivalent lawyer) hardly pointed functional Miranda warning. “The Prysock: ambiguity As dissent observed in California the colloquy by is further demonstrated respondent
the warning given occurred parents and respondent’s between the police sergeant ap- to have a lawyer the ‘right that he had told respondent after are Because lawyers at no to yourself.’ cost pointed represent you officers, law enforcement normally ‘appointed’ judges, *40 under- reasonably have been to counsel could appointed reference must parents respondent’s to to trial That is what stood refer counsel. related assumed, sergeant with the ensuing colloquy have because their 453 (California Prysock, supra, v. ‘to hire a to their option lawyer.’” 2806, 696, 704, fn. omit- 2812], 101 364 L.Ed.2d S.Ct. U.S. [69 Stevens, ted, (dis. J.).) of opn. italics original reference to curiam responds ‘appointed’ that “the per opinion of the availability suggesting
counsel has never been considered at (453 L.Ed.2d at fn. p. counsel was U.S. postponed....” [69 not, under the tradi- because p. 2810].) Perhaps 101 S.Ct. at p. of department- tional Miranda warnings as memorialized in thousands appointment told that the issued Miranda cards the defendant has been so When the term to if he desires.” questioning would occur “prior any as to clear indication such equivalently used without “appointment” found herein. very it lends itself to timing, ambiguity to to a reiterate, he a talk right was told that had To the defendant during to have him present he was and questioned before lawyer advised the defen- then could and should have The officer questioning. for be appointed one would attorney dant that if he could not afford an Instead, diverted if he the officer him to desired. prior any questioning parents his the minor’s have right conversation to discussion of excursion, parents were seated This was a needless since both present. Then, the minor that instead of advising in the with their son. room desired, if the offi- questioning be attorney prior free would provided said, all, a lawyer appointed ... to have right cer “You have you at no cost represent you yourself.”
I earlier the mi- opinion: “Unfortunately, what we said our repeat nor was not the crucial information that the services the free given to the prior impending questioning. were available attorney clarified, obfuscated, “The matter was rather than the off-the- record discussion....” not,
The question
Supreme
before us is
as the United States
Court
curiam
framed,
per
opinion
would have it
whether there must be
“ta
lismanic incantation” of the
language. (California
Miranda
v.
Prysock,
supra,
p.
p.
U.S.
L.Ed.2d at
The basis of this is not a requirement an exact recitation of the tradi Miranda tional warning,4 nor a requirement any particular but sequencing, simply that the words chosen reality sergeant did not communicate the necessary information.
The of In re herein Michael C. majority cites the subsequent history (1978) 21 358, Cal.3d 471 579 Cal.Rptr. P.2d as authority as [146 7] to how we case, should handle the remand. In that California Su preme Court had held that when a asked juvenile probation to see his officer this was an of Fifth invocation Amendment rights. United (Fare States Supreme Michael C. (1979) Court v. disagreed. 442 U.S.
707 L.Ed.2d 99 It 2560].) distinguished S.Ct. the role of a [61 probation officer that from of an attorney, reversed and remanded. Supreme
Our Court acceded to that view. 4 Although precise normally wording words recited in a Miranda are not the ex way adequately imparting rights that, clusive of suspect, to a hope I would since the requirements card, Miranda easily by can so reading be met from that the traditional liturgy Otherwise, will continue to be used. be pre-Mir courts will forced back to the individually anda examining task of the nuances of the advisement in order determine basis whether law, incorporating In Miranda Supreme into state the California Court repeatedly recognized has that the cardinal of virtue Miranda is that it creates “a sin gle, Disbrow, uncomplicated, universally applicable (People test” v. supra, 16 Cal.3d at p. 111) promoted and that this “stability predictability on important of the law this topic.” (People Pettingill, supra, p. 250.) v. 21 Cal.3d at clear-cut, Many areas the law do not lend themselves to workable rules. The con- however, does, warnings, tent of Miranda police and it is a disservice to the and to the courts, suspects, provide as well as “bright-line” regard. them rules in this
1018 Cali- be said of may Whatever is different. quite
The case bench 696, 101 S.Ct. L.Ed.2d Prysock, supra, v. U.S. fornia require- it is retrenchment from 2806], it cannot be gainsaid such, As statement Miranda rights. unequivocal a clear and ment of state- an requires explicit California law which it is a from departure during before and lawyer a free that a defendant have may ment law of this intrinsic Miranda part are an warnings interrogation. giv- that the admonition of that law to hold expansion It is not an state. Rather, holding necessary preserve such a is insufficient. en here was a well-established of our body jurisprudence. With
Miranda, California, the test of time. has stood as applied its have practices adjusted enforcement exception, this case as an law its re- is clear and meaning its strictures. Two of its virtues are met. quirements easily California clause of the the self-incrimination
When interpreting (art. I, 15), it as “‘a document California courts treat Constitution § . .; (1976) v. Disbrow 115. 16 Cal.3d (People force’ independent . .), 549-550. ‘whose con People Brisendine v. 13 Cal.3d court, the United informed but untrammeled struction is left to this provisions. parallel federal Supreme reading States Court’s [Cita Court, 834, 842.)” Superior supra, v. Cal.3d (Reynolds tions.]’ (Allen Court Cal.3d Superior v.
774,
There
little to be
and much
gained
Prysock,
existed before. The rule
where certitude
California
*42
serves neither the pub-
101 S.Ct.
Suffiсiency to Premeditation of Evidence is ad- Sergeant Byrd statement to I concede that if the defendant’s I write this missible, to show premeditation. there is sufficient evidence however, is insuffi- demonstrate, admissibility, such there that absent C., 4, ante, supra, 442 U.S. in Fare v. Michael 5 See and the discussion footnote 197, 208, specific nature of which discusses L.Ed.2d 99 S.Ct. 2568] [61 benefiting the accused and the state alike. the Miranda rules discussion, In I will the statements of disregard this cient evidence.6 and the fruit of those statements in form of Prysock Sergeant Byrd his trial testimony.
When defendant’s contention substantial evidence considering murder, does not support his conviction of first the standard degree enunciated in Johnson Cal.3d 576-578 People 431, 606 is Cal.Rptr. 738], P.2d We must review the applicable. whole in record most light favorable to the below to determine judgment is, whether it discloses substantial evidence—that evidence which is rea- sonable, credible, and of solid value—such that a reasonable trier of fact find could the defendant guilty beyond reasonable doubt. In per- task, forming this we do limit our review to that evidence which is favorable to The issue is respondent. resolved light whole record—the entire story before the than put jury—rather a review of isolated bits of evidence review, selected respondent. From that we of judge whether the evidence the commission of each of the essen- tial elements of the crime substantial enough support conclu- sion of a reasonable trier of fact under the beyond-a-reasonable-doubt standard. It is not for the enough respondent to “some” simply point evidence evidence, supporting finding. together those in- ferences which can therefrom, be reasonably deduced must be substan- tial in of light the other facts.
The finding of deliberation and premeditation may have been the ba- sis of the (Pen. verdict of Code, murder the first degree. 189.) §
The California Supreme Court has made clear that when circumstan-
tial evidence
forms the basis for
arguably
premeditation
proving
deliberation, special caution must occur.
must determine in any
“[W]e
retrial,
6 Ifthere were to
necessary
be
it would be
to discuss the issue
sufficiency
support
of evidence to
finding
that defendant killed his victim with deliberation and
premeditation
holding
because of the
Cal.App.3d
v. Bonner
Bonner,
In
the trial
guilty
court found the defendant
possessing
821].
for sale one-half ounce or more of
appellate
heroin. The
court affirmed the conviction
guilt
but found that the record did not contain substantial evidence that the sub
more,
question weighed
stance in
one-half ounce or
and remanded for trial on the sole
*43
weight.
court,
issue of
petition
rehearing,
On a
for
appellate
relying
on Burks (1978)
1,
United
2141],
States
case circumstantial an inference of and delibera premeditation a for reasonable foundation surmise the it to and conjecture or whether ‘leaves [citations], only tion arrived at carried out the intention defendant either conclusion that premedita a of deliberation and to the result of concurrence kill as (1968) v. Anderson 70 Cal.2d tion.’. ..” (People to de court then went on high P.2d italics 942], original.) and delib premeditation of the evidence for sufficiency scribe how the has of evidence which this court “The type eration should be assessed: of and deliberation premeditation to sustain a finding found sufficient defen (1) about how and what three basic facts categories: falls into that the defendant to the actual which show killing dant did prior toward, as intended to result explicable and directed engaged activity (2) in, activity; as ‘planning’ be characterized may the killing—what conduct with the relationship the defendant’s prior facts about and/or kill the infer ‘motive’ to reasonably from could jury victim which (3), motive, (1) or victim, with facts of type together which inference ‘a was the result of killing inference that would in turn an support of consider and thought weighing reflection’ and ‘careful pre-existing rash executed’ impulse hastily ‘mere unconsidered or ations’ rather than which the from jury the nature killing facts about [citation]; exacting particular was so killing the manner of could infer according ‘pre killed intentionally have the defendant must way in a for particular his victim’s life take design’ conceived (1) or from facts of type infer reasonably which the can jury ‘reason’ (2). verdicts of court sustains that this will show of the cases
“Analysis three of all types is evidence there when typically first murder degree or evi- evidence strong least extremely at requires and otherwise (Id., 26- (l)or(3)....” pp. either (2) in conjunction dence of original.) italics defendant the two boys, (planning), first category As to Anderson’s countryside the Tulare County around aimlessly drove Danley, Center, K. Youth Meyers the Robert from escape the time of from 28, 1978, Jan- midmorning until the p.m. January sometime before 8 house Danley’s and went and clothes 30. needed food uary They his mother’s were frustrated on but January obtain same house, re- Erickson drove to the then at the house. presence Danley some food get where could they a house that he knew marking that house indicative what did at evidence of they clothes. The *44 house, a an a homicide. drove planning burglary empty They by times; several looking checked for the Danley garage, presumably which, victim’s car not there because it repaired. was was being Danley store, made several calls a if from local convenience see probably was home. He did not converse with anyone anybody, be- presumably themselves; cause calls went unanswered. did not arm They they out rear attempted by window. entry breaking hand,
On the other did not when flee confronted the vic- boys by tim, but instead entered the house. Defendant have known the may victim, when, identity before, and was present a few weeks Dan- told ley juvenile another that he was of” to “take care Brad going Erickson’s mother. balance,
On it is that a apparent trier of fact would find reasonable that the boys attempted had to avoid Mrs. Erickson the time up that she discovered and Danley breaking glass, the death was not the result of premeditation and but deliberation rather was the result of Danley’s explosion of violence after had entered the they residence and (or after defendant three) struck the first two blows with a wooden Anderson, dowel. As stated in 70 Cal. 2d 26: page “... find we no indication the Legislature intended to give words ‘deliberate’ ‘premeditated’ other than their ordinary dictio nary Moreover, meanings. we have repeatedly pointed out that the leg islative classification of murder into two degrees would be meaningless if ‘deliberation’ ‘premeditation’ were construed as no requiring reflection more than may be involved the mere formation of specif ic intent kill. [Citations.]”
With regard (motive), defendant, to the second as category previous- stated, was ly when Danley Danley was arrested for auto theft aas son, result of a report by made Brad Erickson. On the other victim’s hand, Brad; defendant knew neither Mrs. Erickson nor her son had nev- er been slighted the Erickson family; not arrested in connection Erickson; with the auto theft Brad as reported a casual friend of Danley years, for two was never shown to have known shared Dan- desire for ley’s result of the revenge arrest discussed above.
Defendant testified that he never desired or repeatedly intended have Mrs. Erickson die.
In (manner), reference to the third the evidence fails entire- category ly. Respondent to the fact that points Danley stabbed the victim eight *45 shallow, approxi- were The wounds in the back. pick with an ice
times Respondent depth. inch in one-quarter inch to one and one mately “careful, pathologist The stabbing.” denotes calculated that this argues They body cavity. penetrate “did not the wounds testified that structures, precision showing Rather than ...” bony at the stopped that only demonstrate shallow wounds scalpel, the a with his surgeon of fat and mus- through subcutaneous go strong enough blows were Nor does the fact the rib penetrate cage. not strong enough cle but demon- cord telephone by strangulation by was caused that death to the was not carried cord premeditation. and strate deliberation during receiver telephone from the cut it Danlеy—he premises by to prove short, tending is evidence any the record devoid attack. In that exacting in and fashion particular was done such killing that the inferred. could be deliberation premeditation strong planning. no evidence at trial showed The evidence adduced prior relationship of or knowledge any that It also demonstrated in of the fact light is speculation part pure the victim on defendant’s manner of Finally, testified knew him. of the Ericksons who none demon- any of sophistication crime showed lack execution of the strated forethought. which a rea- evidence by is no substantial
I would conclude that there beyond and premeditation find deliberation trier of fact could sonable a retrial the upon not mean that conclusion does doubt. This reasonable on grounds murder degree be found of first guilty defendant could not premeditation. of deliberation and than on a finding other Penal Code Section Pe- of violating attack on his conviction levels a three-part
Defendant who, that person knowing provides: “Every section which nal Code record, thing, in or other matter or book, writing, instrument any paper, trial, or inquiry, investiga- upon any in evidence produced is about be conceals the whatever, law, willfully destroys tion authorized guilty it is same, being produced, from prevent with intent thereby a misdemeanor.” insufficient, that of his is guilt the evidence
Defendant argues meaning on the to instruct sua sponte, failing the trial court erred evidence,” statute produced to be “about phrase unconstitutionally vague. Sufficiency
A. Evidentiary *46 evidence to establish that that the is insufficient Defendant contends the crime shoes burned himself and after Danley the and clothing that he in evidence so produced about to be knew. were and/or Respondent asserts that the evidence sufficed because the clothing was burned after crimes as which the would clothing be evidence and because knew that was appellant an imminent or in investigation pro- gress. the be
Although appears impression, one of first other stat- point utes with the same dealing topic as Penal Code section 135 are general instructive. People MсAllister
In v. P. Cal.App. tri- [277 1082] al court entered a dismissal following sustaining a demurrer in an action which charged defendant offenses of and offering giving persons bribes to about to be called as in a civil witnesses case not yet filed. Penal Code section 137 a proscribed bribing person “about to be case, called as a here, witness.” defendant in that as the one con- tended that the section had no it application where does appear there action or any proceeding which be affected pending might misconduct any of the defendant.
The appellate court reversed and ordered the trial court to overrule the demurrer. The court stated at “At pages 40-41: it must outset be remembered that this is a law primarily prevent corrupt inter- ference with the administration of justice. purpose Its is to back as go far as necessary say effect any attempt so influence pro- witnesses that will spective truth not be presented in anticipated Holt, State is felonious. In litigation 509Me. Atl. it 951], was effect, dictum, said in statement is obiter although perhaps that in a prosecution to the similar one before us the indictment need not aver summoned, that the witness had been even that cause was pending the attendance requiring of witnesses. it is not Surely, the imminence of person called as a witness nor being the fact that his being called be may postponed for a time that is determinative of the act coming within this It is purview section. the intent of the person interest- ed purpose True, that is of that design decisive question. cannot
person be witness unless there is an action but a pending, per-
son be about to be called as a witness even no action is may though pending....” effect, (1931) 114 v. Martin Cal.App.
To the same see an of a bribe after an auto- 130], shortly 394-395 P. where offer had been filed was a of a any mobile accident and before bribery suit be called as a witness.” “about to person *47 (1977) in- Cal.App.3d 76 71 Cal.Rptr. v. Broce
People [142 628] to to induce a witness false threats give testimony volved an attempt cause to arrest. The at- establishing probable of force facts regarding influence occurred two after an arrest tempt testimony days to a conviction was filed. This was sufficient to sustain before action any of to induce a 137 of the Penal Code attempting of violation section false The give to be called as a witness” person testimony. “about did Pe- contends that he not violate court stated at 75: “Defendant page was a witness out that Weinald neither points nal Code section 137. He possession to the possible weapons charge nor a witness with respect true, This is but irrelevant. Weinald’s obser- defendant. pending against he of defendant’s arrest—whether legality vations were material or, af- charges to raise its as a defense to criminal planned illegality it no Nor does matter that in an action for false arrest. firmatively, of the Section 137 contains was at time threat. pending such action requirement.” no such v. Fields in dicta in People has opined
I that this court acknowledge a fact situation Cal.Rptr. that 341 105 336] Cal.App.3d 415 Cal.3d v. Mijares it existed in People of Penal for violation a conviction would not sustain P.2d 1115] that the de it contention defense In Mijares section 135. Code in a condition drowsy at a street friend up fendant picked .corner him, the defen revive Unable to into unconsciousness. which progressed looked inside at fire station. He help to secure medical dant decided into a field which he threw some heroin and found pockets his friend’s reversed a conviction Court Supreme assistance. The he sought before in have been that should jury holding of narcotics for possession the heroin no contact with had if the defendant it believed structed such han disposal, for it friend’s pocket from his than to remove other as defined possession the crime of for conviction insufficient dling Code. the Health and Safety 11500 of former section Fields, court, in a footnote this Nine after years Mijares, “We question footnote said: Cal.App.3d page supra, fact situation Mijares 135 to the Code section of Penal applicability drugs of the disposing act of that the defendant’s since it would appear ” .. . police investigation. of any to the commencement prior occurred there was no recog- opinion nеcessary The statement was not McAllister, its progeny. goal Cal.App. nition of not be will justice the administration interference with preventing because the po- with impunity merely be destroyed met if evidence may their investigation. lice have not commenced clear, I the evidence was the matter is not would hold that
Although sufficient to sustain a conviction of section 135.
B. Instructional Error “about to be Appellant argues ambiguity produced phrase *48 in evidence” necessitated a sua instruction. sponte Penal Code section
The was instructed the violation of jury regarding 135 in the of the statute. did not a caution- language Appellant request instruction as to the of “about to be evidence.” ary meaning produced princi- Absent a the court need instruct on specific request, only general of law and need not instruction. v. Baker ples give cautionary (People 550, 557 Cal.App.3d Cal.Rptr. 248].) [113 Vagueness C. 135 is void for under state vagueness
Defendant contends that section due process. and federal guaranties an act in forbids or requires doing statute which either
“‘[A] must necessarily guess so that men of common vague intelligence terms the first essential of due of law.’” process at its ... violates meaning 409, 974], P.2d Cal.2d McCaughan (People (1926) 269 U.S. v. General Const. Co. quoting Connally be definite enough “A statute must 126].) L.Ed. 46 S.Ct. activities are proscribed conduct for those whose a standard of
provide called courts guilt by a standard for the ascertainment as well as 414.) 49 Cal.2d at p. v. McCaughan, supra, it.” upon apply (People due It ade- process. with all comports requirements Section 135 which is will evidence or those violators that potential notifies quately trial, shall not be de- be sought inquiry investigation for imminently to the courts in law. ample enforcing It gives guidance stroyed. is meritless. is void for vagueness
contention that statute
Conclusion the Miranda error and because there was I reverse would because of of a intelligent presence an of an waiver of adequate showing court-appointed during interrogation. attorney Andreen, 17, 1982. A for a was denied petition rehearing February J., Appellant’s was of the that the should be opinion petition granted. April for a Court was denied 1982. petition hearing Supreme Bird, J., Mosk, J., J., was of the opinion peti- C. and Reynoso, be granted. tion should