246 Cal. App. 2d 154 | Cal. Ct. App. | 1966
By indictment, the defendant Watters and a codefendant named La Vergne were charged with the offenses of murder, robbery and assault by means of force likely to produce great bodily injury; all involved the same victim; and all occurring on January 7, 1965. The codefend
Pertinent facts applicable to the case at bench are summarized in the opinion of People v. La Vergne, supra, 64 Cal.2d 265, 267, as follows: “At approximately 5 a.m. on January 7, 1965 Peter Giacalone, a Los Angeles cab driver, was beaten and strangled to death by two men in an alley in Imperial Beach. In the vicinity of his cab, which was parked near the alley, were found a cigarette lighter, a pair of sunglasses, later identified as belonging to Watters, a hat later identified as belonging to defendant, and some loose $1.00 and $5.00 bills. The trip sheet in the cab showed $14.50 in fares since the commencement of Giacalone’s shift, but no money was found on his body and the wallet was not located. Quantities of blood were on the cab and the ground near it. ”
The cause of the victim’s death was manual strangulation. About his neck, when found by the officers, was Watters’ belt. Trousers worn by Watters on the night of the murder bore bloodstains.
Preceding the murder Watters and LaVergne got into the victim’s cab in Los Angeles; caused the victim to get into the back seat, where he remained with Watters while La Yergne drove the cab to San Diego; made two stops on the way from Los Angeles to San Diego; and drove through San Diego to Imperial Beach where the murder occurred.
At about 6 -.30 a.m. on the same morning Watters obtained a ride in an automobile from a man on his way to work who
As grounds for reversal defendant contends (1) the evidence is not sufficient to support the finding of murder in the first degree; and, (2) the court erred in its instructions to the jury, admitting into evidence photographs of the deceased and permitting the introduction of statements made by him to the officers while he was in custody in Rochester.
The attack upon the sufficiency of the evidence to support a finding of murder in the first degree is premised upon the contention there is no showing the victim was robbed, or that defendant participated in any robbery, and for this reason the case does not come within the felony-murder rule stated in Penal Code, section 189. Parenthetically it is contended the evidence does not show the killing was premeditated. The sufficiency of the evidence to support the charge of first degree murder was not considered in the companion case of People v. La Vergne, supra, 64 Cal.2d 265. However, the judgment in that case was affirmed on facts established by evidence similar to that in the case at bench. The victim collected $14.50 in fares before Watters and La Vergne entered his cab; only $6 and a few cents of this amount was found at the scene of the murder; and it may be inferred the balance thereof was taken from him forcibly by La Vergne or Watters. It is of no consequence that, as argued by Watters, the evidence does not show he actually took any money from the person of the victim, or that any such money was in his possession. Even assuming La Vergne was the robber who took the missing money, there is adequate evidence establishing that Watters was a participant in the offense as an aider and abettor which, under the rule prescribed by section 31 of the Penal Code, makes him a principal in the crime.
In the main, Watters’ defense was predicated upon his contention he did not actually take any money from the victim; did not actually beat, strangle or harm the victim; and his conduct in the premises was the product of fear of injury by La Vergne. In this manner he seeks to excuse or justify giving his belt to La Vergne, which the latter placed about the neck of the victim. However, the evidence justifies the infer
The contention that the evidence is insufficient to support the charge of murder in the first degree is without merit.
The claims that the court erred in admitting in evidence certain photographs of the victim, in refusing to give requested instructions and in giving an instruction that “a homicide resulting from strangulation indicates malice” involved the same claims of error rejected by the court in People v. La Vergne, supra, 64 Cal.2d 265, 270-272.
The court, over objection, admitted into evidence incriminating statements made by Watters to the police officers while in custody after his arrest in Rochester, New York. He contends admission of these statements should have been excluded under the rules stated and applied in Miranda v. Arizona, 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], Escobedo v. Illinois, 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758], and People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361].
Following his arrest extradition proceedings were instituted before a court in Rochester, New York; an attorney was appointed by that court to represent him; and, following consultation with that attorney, defendant appeared in court and waived any objection to his extradition. Thereafter, he was interviewed by police officers from California who identified themselves; told him he was charged with murder; and advised him that he was entitled to counsel, did not have to say anything to them, and in the event he did so his statements could be used against him in a criminal court. The defendant replied “that he had been to court, that he had already talked to an attorney, that he was aware of his rights and he knew them.' ’ One of the officers presented him with a printed form with the request that he read it, fill in the blanks and sign the same. The defendant did so, inserting in appropriate blanks his name, the date and place of his birth, and the time of signing, i.e., 9:30 a.m., and after signing delivered it to the officer. In this writing the defendant acknowledged that
It is not contended defendant was not advised of his rights to counsel and to remain silent, or was denied permission to get in touch with or talk to his attorney. He claims this advice was not given him until after he had made the incriminating statements. The evidence upon this issue was conflicting. Under settled rules on appeal it must be concluded that the trier of fact found he was advised of his rights before rather than after making the statements.
As the evidence supports the conclusion defendant not only was advised of his right to counsel but had an attorney who had been appointed to represent him, and not only was advised of his right to remain silent and that anything he might say could be used against him in a criminal court but told the officer he had talked to his attorney and was aware of his rights, the foundational requisites to admission of the statements he then made to the officer, prescribed by the Escobedo and Dorado decisions, were established. (People v. Jones, 244 Cal.App.2d 378 [52 Cal.Rptr. 924]; People v. Webb, 243 Cal.App.2d 179,184-185 [52 Cal.Rptr. 85]; People v. Stafford, 240 Cal.App.2d 422, 426 [49 Cal.Rptr. 598].)
Defendant’s contentions before this court respecting the admissibility of the statements made by him while in custody in Rochester are not clearly defined. In one part of his brief he asserts that “at no time” did the police advise him that he had a right to remain silent. This contention is contrary to all of the evidence. In another part of his brief it would appear he contends he had not been advised of his right to remain silent and to have counsel before he had been interrogated. As noted, although there is a conflict in the proof on this issue, there is substantial evidence supporting the conclusion the advice had been given to him before he was questioned. In a third part of his brief he seems to contend the questioning was improper because the officer knew he had an attorney and proceeded to question him in the absence of that attorney. The exclusionary rule prescribed by the Escobedo and Dorado decisions does not extend to incriminating statements of a defendant merely because they were made without the presence of his attorney.
The judgment is affirmed.
Brown, P. J., and Whelan, J., concurred.