People v. RiveraPeople v. Rivera
Lead Opinion
Opinion
Defendant David Rivera appeals after a jury convicted him of murder (
Cresencio Quiroz was one of the two youths who entered the store and took the beer. In a taped confession Quiroz implicated defendant Rivera. Later, in separate trials, Quiroz and Paez were convicted of first degree murder and burglary. David Rodriguez, the alleged driver of the getaway vehicle, pleаded guilty of being an accessory to murder.
Three months after the crime, defendant, then seventeen years old, was arrested at his home. He was advised of his rights under Miranda v. Arizona (1966)
After the confession defendant met privately with his father and stepmother. About two hours after the interrogation he was transported to juvenile hall by Officer Jоseph Cirilo. Cirilo had been on duty the night of the crime and had arrived at the scene before other officers, but had not seen the getaway car. As he and defendant drove to juvenile hall, Cirilo asked defendant “out of curiosity” which way the perpetrators had fled after the crime. Defendant responded by explaining their route.
Defendant was charged with murder on a felony-murder theory. He moved pretrial to suppress all statements made to the police on grounds there had been no adequate waiver of his Miranda rights. Applying the criteria enumerated in People v. Lara (1967)
At trial, evidence of defendant’s confession was introduced and Cirilo described his conversation with defendant. Defendant testified on his own behalf, insisting he had been at a party at his sister’s house at the time of the incident. He claimed he knew of the crime because Paez bragged to him about it after the perpetrators returned to the party. He said he lied in his
Upon conviction, defendant was found unamenable to treatment by the Youth Authority and was sentenced to state prison for a term of 25 years to life on the murder count, with a concurrent sentence on the burglary.
On appeal, defendant challenges the admissiоn of his confession and the statement to Officer Cirilo as violative of his privilege against self-incrimination. He also contends that the confession was involuntary, motivated by promises made by the police. Additionally, defendant assigns error in the admission of a prior offense.
We address first the alleged error in the admission of the prior offense, an armed robbery committed about a year and a half before the instant offenses. Over defendant’s objection, evidence of the prior offense was admitted on cross-examination. The prosecution offered the evidence to show identity, knowledge, and common scheme and design. (
In order for evidence of a prior crime to have a tendency to prove the defendant’s identity as the perpetrator of the charged offense, the two acts must have enough shared characteristics to raise a strong inference that they were committed by the same person. It is not enough that the two acts contain common marks: “[T]he inference of identity arises when the marks common to the charged and uncharged offenses, considered singly or in combination, logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses.” (People v. Haston, supra,
In the present casе the prosecution sought to justify the admission of the prior offense on the basis of the following “highly distinctive similarities” between the prior offense and the charged conduct: (1) both crimes
Taken alone or together, however, these charаcteristics are not sufficiently unique or distinctive so as to demonstrate a “signature” or other indication that defendant perpetrated both crimes. Convenience stores are often on street corners and are prime targets for crimes; undoubtedly many of these offenses occur late on Friday evenings and involve a getaway car and more than one perpetrator; finally, alibi is a common defense. Moreover, the dissimilarities between the two crimes are significant: (1) the prior offense was armed robbery, a crime against the person, whereas the charged offense was planned as a burglary, a crime against property; (2) the prior involved the taking of money, while the charged crime involved the taking of beer; (3) the coperpetrators in each case were different. In addition, in an attempt to reduce the prejudicial effect of the evidence, the court excluded any mention that guns were used in the prior offense, which further distinguishes it from the present crime, involving no such firearm. In short, the prior offense was a robbery at gunpoint; the charged crime was a “snatch” burglary plus a stabbing. In these circumstances it was error to allow the prior conviction into evidence.
Having found error in the admission of the prior offense, we must assess its prejudicial effect. For the purposes of our analysis, we assume no error in the admission of the confession and other statements made to the police. Nonetheless, it is reasonably probable that absent the admission of the prior robbery a result more favorable to defendant would have been reached. (People v. Watson (1956)
In pretrial proceedings and at trial, defendant sought to exclude the confession on grounds his waiver was not knowingly and intelligently made under the dictate of Miranda and, further, that the confession was involuntary in the traditional sense, motivated by promises made by the police. Defendant’s request that Detective Shroads contact his father, made after arrest during transport to the station, was submitted merely as a factor to be considered in support of the dual challenge to the validity of the confession. The specific objection that the request to contact his father constituted an invocation of the privilege against self-incrimination (People v. Burton (1971)
A finding that defendant was requesting his father’s presence would bring into play our decision in People v. Burton, supra,
The reference to “evidence demanding a contrary conclusion” in Burton recognized the possibility that in some cases the juvenile’s own request
Although Fare v. Michael C., supra, suggests that the Burton rule-equating a juvenile’s request to speak to a parent with the invocation of his privilege against self-incrimination—may not be compelled by the federal self-incrimination clause, Burton has been an established part of California jurisprudence for well over a decade and it is appropriate to recognize its holding as one component of the state constitutional privilege against self-incrimination. (Accord People v. Pettingill (1978)
We briefly note that defendant also assigns error to the trial court’s instruction on aiding and abetting. People v. Beeman (1984)
The judgment is reversed.
Bird, C. J., Broussard, J., and Reynoso, J., concurred.
Notes
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judiсial Council.
Evidence of the fact that Quiroz’ confession implicated defendant was received without objection.
Further, it is noteworthy that a first trial of defendant ended in a hung jury.
The evidence was in conflict as to whether defendant asked that his father be present during the interrogation—i.e., that he wanted to “speak” to his father. Shroads testified at trial that defendant wanted his father “present,” but it is unclear whether this was defendant’s actual request. At the pretrial suрpression hearing, Shroads stated that defendant requested only for his father to be “contacted.” When asked whether defendant “intimated in any way that he wanted his father present prior to being interrogated,” Shroads replied that he did not.
Concurrence Opinion
I concur in that part of the majority opinion which concludes that the admission of prior crimes evidence was prejudicial error. The question of prejudice seems to me a close one, but the People have not argued in their briefs that admission of this evidence was not prejudicial. While defendant’s explanation of his confession seems quite flimsy to me, it was apparently sufficient to raise a doubt as to his guilt in the minds of some jurors in the first trial. In these circumstances I cannot say that the error was not prejudicial.
Having reached this conclusion I see no need to consider the admissibility of defendant’s confession at all, much less engage in what appears to be
Dissenting Opinion
I dissent.
There are two issues in this case: whether a juvenile subject to custodial interrogation invokes his privilege against self-incrimination when he purports to request the presence of a parent, and whether evidence of defendant’s prior conviction was erroneously admitted.
The facts are generally related in the majority opinion. However, some elaboration will be helpful, and discussion in reverse order to that employed by the majority is more consistent with the contentions of defendant and response of the People.
Defendant, though then 17 years of age, was no novice to arrest and interrogation: this was his eighth arrest. The officer, Detective Shroads, handcuffed him and advised him of his rights under Miranda v. Arizona (1966)
Defendant and the officer then entered an interrogation room, where the latter turned on a tape recorder. Defendant was again advised of his rights, and the following exchange took place:
*397 “Q. Do you understand the rights I’ve just explained to you? A. Yes, sir.
“Q. With these rights in mind, are you willing to talk to me at this time? A. Well, yes, but I don’t really understand what’s going on.
“Q. Okay, I’ve already called your father, okay? At your request. Is that right? A. Yes.
“Q. And he said he would be on his way. Would you like to talk to me about this incident? A. Well, whatever we’re sitting here talking about.”
Defendant then claimed to have been at a party at his sister’s home on the night of the crime. Shroads proceeded to question him about his sister and her party. Defendant insisted he did not kill anyone. Shroads then proposed a polygraph test.
“Q. You wanna take a lie detector test, David? A. For what? To say if I killed somebody or not?
“Q. Yeah. A. Well, I’d have to talk to my dad before ....
“Q. You’re supposed to be a man now. You’re talking to God and saying you’re doing right, and you’re telling me that you never did nothing like that. Why do you have to talk to your dad? A. I don’t know.
“Q. Your dad ain’t gonna help you. A. I know, but a lie detector test.
“Q. Hey brother, you’re telling me that you didn’t do anything. You didn’t have anything to do with killing this old man, right? A. What’re you going to do? Put that on there and ask me if I killed him?
“Q. All it is is a little thing that takes your blood pressure, and you sit there, and they ask you some questions. That’s it. Period. There ain’t no needles. There ain’t no clubs. There ain’t no somebody standing there with a gun. There’s just you and a man that runs a polygraph machine. A. When would I take that?
“Q. As soon as I could get it scheduled for you. Yes or no? A. Well, I’d have to think about it, though.
“Q. No thinking about it, buddy. There ain’t no time to think about it. That old man that’s laying in the grave right now ain’t got nothing to think about.”
Four minutes later, he started the tape again, and defendant once more waived his rights. The taped confession of Quiroz was played. Before defendant was mentioned on the tape, he confessed to the burglary, but insisted he did not stab Lockridge. His description of the events surrounding the crimes matched those of the other perpetrators and the witnesses. After this confession defendant met privately with his father and stepmother.
Approximately two hours after his interrogation, defendant was transported to juvenile hall by Joseph Cirilo, another police officer. Cirilo had been on duty the night of the crime, had arrived at the scene before any other officers, but had not observed the getaway car. As he and defendant drove to juvenile hall, Cirilo asked defendant out of curiosity which way the perpetrators had fled after the crime. Defendant responded by explaining their route.
At trial, evidence of defendant’s confession was introduced and Cirilo described his conversation with defendant. Defendant testified on his own behalf, insisting he had been at a party at his sister’s house at the time of the incident. He claimed he knew of the crime because Paez bragged to him about it after the perpetrators returned to the party. He said he lied in his confession to Shroads because he wanted to “cover” the others and because he did not want to be labelled a “snitch.” He stated that when he finally implicated Paez as the actual killer, he did so because he thought he might be able to avoid going to juvenile hall. He denied making any admissions to Officer Cirilo.
Defendant contends his confession was unconstitutionally obtained because Detective Shroads did not cease questioning him when he asked for his father. He relies on People v. Burton (1971)
Some courts—and, indeed, the majority herein—appear confused regarding whether Burton prescribed a per se rule, or whether it held the minor’s
In Miranda v. Arizona, supra,
In People v. Fioritto (1968)
In a series of cases since Fioritto this court has reviewed various fact situations claimed to constitute a waiver of the defendant’s privilege. In People v. Ireland (1969)
In People v. Randall (1970)
We applied this “reasonably inconsistent” test to the context of a minor who requested the presence of his parents in People v. Burton, supra, 6 Cal.3d 375. There the 16-year-old defendant’s request to see his parents was denied. He was then advised of his rights, and waived them; during the subsequent interrogation he made a full cоnfession. We noted this was a case in which the defendant did not expressly invoke his rights, and thus the circumstances would have to be examined to determine whether his conduct was reasonably inconsistent with a present willingness to submit to police questioning. (Id. at pp. 381-382.) We held that a request by a minor to see his parents was a strong indication that the minor did not desire to be interrogated: “It appears to us most likely and most normal that a minor who wants help on how to conduct himself with the police and wishes to indicate that he does not want to proceed without such help would express such desire by requesting to see his parents.” (Id. at p. 382.) When a minor asks to see his parent, the People have the burden of demonstrating that the request was not an invocation of the defendant’s privilege. (Id. at p. 383.)
In Fare v. Michael C. (1979)
Presumptuous though I may be, it appears that the Supreme Court has not properly interpreted Randall, Michael C., and by implication, Burton, Ireland, and Fioritto. It is true that in Burton and Michael C. we analogized the minor’s request to speak to a parent or a probation officer to an adult’s request to speak to an attorney. (
In Fare, the Supreme Court held that to ascertain whether the confession is voluntary, the trial court must make an inquiry into the “totality of the circumstances” surrounding the interrogation. (442 U.S. atpp. 724-725 [61 L.Ed.2d at pp. 212-213].) A minor defendant’s request to speak to his probation officer is one of those circumstances, and should be taken into consideration in evaluating voluntariness. (Id. at p. 724 [
We have long held that the voluntary nature of a minor’s confession must be judged by the totality-of-the-circumstances test. In People v. Lara (1967)
The rule that evolves from the cases is this: to determine the validity— and hence the admissibility—of a minor’s confession, the court must make a two-step inquiry. First, the court must evaluate the minor’s capacity to make a valid waiver. This inquiry focuses on the characteristics of the individual defendant and employs the factors set forth in Lara. Next, the court must determine whether the minor actually did waive his rights in a knowing, intelligent and voluntary manner. This inquiry examines the behavior of the minor and the police and the events surrounding the waiver. Included in this inquiry must be a determination that the minor did not invoke his right to silence in any way: any “conduct [that] reasonably appears inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with the police at that time” (People v. Randall, supra,
I would adapt the Lara-Randall tests to the facts at hand. First, defendant’s personal characteristics reveal he had substantial capacity to make a valid waiver. He was 17 years old at the time of the arrest and interrogation. There was no evidence that he was of low intelligence, or had less than normal education and worldly experience. Although he may not have been
Moreover, the record discloses seven prior arrests of the defendant; advised of his rights, he invoked them in some of these instances and waived them in others. Thus he has had significant prior contact with the police and the courts. The prior arrests, advisements, waivers and invocations all indicate that defendant was well aware of the procedures of police stations and courts, and knew how to invoke his rights if he so desired. Finally, in the present case he was fully advised of his legal rights twice between his arrest and his confession.
Turning to the second step of the inquiry, I consider defendant’s claim that the circumstances surrounding the interrogation demonstrate his confession was involuntary. First, he maintains that his request for his father, if not a per se invocation of his rights, at least amounted to a manifestation of unwillingness to talk to the police. Defendant’s first mention of his father came during the ride to the station. When the evidence is viewed in the light most favorable to the People, defendant must be found to have asked Shroads simply to contact his father, not to have demanded his presence at the interrogation. This request is not necessarily inconsistent with a desire to talk to the police. (Fare v. Michael C., supra,
Defendant’s second mention of his father occurred when he was аsked to take a polygraph test. He said he would have to ask his father. The officer then exhorted him to “be a man” and “stand on his own two feet.” Defendant contends this request for his father was an invocation of his rights, and that he was bullied into confessing. However, the crucial factor is that defendant never did take a polygraph test, and continued to refuse to do so even after agreeing to testify against his coperpetrators. He was thus able to separate submitting to a machine—the polygraph test—from being interrogated, agreeing to the latter while refusing the former. Even if his request for his father’s advice could be deemed an unwillingness to take the polygraph test, such reticence does not establish that the defendant was also reluctant to talk to the police. (People v. Davis, supra,
Defendant claims his words of waiver demonstrated that his confession was involuntary. He emphasizes that when asked whether he was willing to
Defendant maintains his motivation for сonfessing was his belief that by talking he could avoid going to juvenile hall. The record shows, however, that Shroads was scrupulously careful not to promise defendant anything he could not deliver. He repeatedly informed defendant that he would have to spend at least the night in confinement. When defendant asked if he would get out if he supplied information, Shroads answered, “I can’t guarantee you anything, young man. You know something? The court is the only people that can guarantee you anything. If you wanna tell me, all I can do is tell the judge that this man did me a favor and I’ll do that. But that’s the only thing that I’ll do for you.” It is apparent that if in fact defendant confessed to avoid juvenile hall, it was not because the officer misled him.
Defendant next asserts that if a minor’s parents are actively seeking to speak to the minor, the police have an absolute duty to tell him that he has a right to see them. He relies on In re Gregory S. (1980)
A knowledgeable minor—and particularly a minor with vast experience with the police—is capable of giving a valid confession without his parents’ consent or advice. Nor is there a requirement that the police inform a minor that he has a right to see his parents before being interrogated. Of course, if the police have purposely kept from a minor the fact that his parent is aсtively seeking to speak with him, such abusive tactics should feature prominently in any evaluation of whether the minor’s confession was indeed voluntary.
In the case at bar, Detective Shroads did not act in a devious manner. He telephoned defendant’s father shortly after arriving at the station. He informed defendant that his father had been contacted and would come to the station soon thereafter. Under these circumstances, Shroads’ failure to inform defendant that he could await his father’s arrival before the questioning began did not render the confession involuntary.
Under the totality of circumstances I would hold that defendant’s confession was voluntary, following a knowing and intelligent waiver. It was thus properly admitted into evidence. Moreover, defendant’s admission to Officer Cirilo, made approximatеly four hours after his waiver, and after he had met privately with his father and stepmother, was also admissible. Defendant’s only contention with regard to that damaging admission was that it was tainted by his assertedly improper confession. Since his confession was constitutionally obtained, I reject this challenge as well.
Finally, I reach the issue—not even raised in the original petition for hearing—of the admission of defendant’s prior conviction. Over objection, evidence of his prior conviction for armed robbery was admitted on cross-examination. The court found the past and present crimes to have enough shared characteristics to permit introduction of this evidence to prove identity.
We have held that “The admission of any evidence that involves crimes other than those for which a defendant is bеing tried has a ‘highly inflammatory and prejudicial effect’ on the trier of fact,” and thus must be “ ‘scrutinized with great care.’” (People v. Thompson (1980)
The second prong of the admissibility test, though debatable, also appears to be met. In order for evidence of a prior crime to have a tendency to prove the defendant’s identity as the perpetrator of the charged offense, the two acts must have enough shared characteristics tо raise a strong inference that they were committed by the same person. But it is not enough that the two acts share certain common marks: “[T]he inference of identity arises when the marks common to the charged and uncharged offenses, considered singly or in combination, logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses.” (People v. Haston (1968)
In the case at bar, the People point to the following shared characteristics of the prior conviction and the charged conduct: (1) both crimes occurred on a Friday night; (2) both occurred at approximately 11:30 p.m.; (3) both involved convеnience markets; (4) both markets were in Rialto, California; (5) both markets were located on street corners; (6) both crimes involved three perpetrators; (7) both involved getaway vehicles; (8) prior to both crimes, two or three people were observed standing outside the store; (9) defendant used an alibi defense in both cases: when accused of the prior offense, he claimed to have been with his brother all night, and in the current case he claims he spent the evening with his sister.
Taken alone or together, it is a question of fact whether these characteristics are sufficiently unique to demonstrate a “signature” or other indication that defendant perpetrated both crimes. Although other offenses by other persons arguably could have been committed in the same pattern, the cоmbination of nine circumstances could properly be considered by the jury in determination of identity.
Finally, defendant contends the court committed error under People v. Beeman (1984)
I would affirm the judgment.
Lucas, J., concurred.
In a letter to this court, defendant maintains he never argued, that Burton created a per se rule. There is, however, no other way to read his briefs.
The Courts of Appeal are in conflict as to whether Burton creates a per se rule. (See In re Jessie L. (1982)