Defendant appeals from a judgment on a verdict finding him guilty of violation of Penal Code section 4500, which provides for the automatic penalty of death. The indictment charged defendant, a 26-year-old prisoner serving a life term for sale of marijuana, with malicious assault with a deadly weapon which resulted in a fellow prisoner's death. The court denied defendant's motion for a new trial. Penal Code section 1239, subdivision (b), provides for an automatic appeal.
The main issue of this case involves the admission into evidence of defendant's confessions. For the reasons which we set out hereinafter we have concluded that in the light of recent decisions of the United States Supreme Court the confessions, as obtained in this case, should have been excluded; their admission requires reversal. For guidance of the court upon retrial we set forth why we have rejected defendant's contentions that the evidence failed to show that he was validly imprisoned under a life sentence and that the court failed properly to instruct the jury. We do not discuss defendant's remaining arguments because the factual situations upon which they rest will in all likelihood not recur.
The facts of this case show the background and occasion for defendant's confessions. According to prison officers, they discovered, at about 8 a.m. on December 12, 1961, the body of one Nevarez in the lower yard behind the bleachers and near the industrial quonset huts at San Quentin Prison. About 20 minutes later medical personnel pronounced the victim dead upon arrival at the prison hospital. The nature of the chest wounds of the victim showed that they could have been inflicted by a small knife and that the victim probably had been physically restrained during the killing.
Correctional officers undertook an immediate investigation
When the officers located defendant in his cell around 9 a.m. he was attired in his underwear. Upon their request that he dress, he donned clean clothing. The officers found no worn clothing in his cell but did discover a roll of tape similar to that used to tape the knife handles. Under a stack of soiled clothing in a clothes hamper the officers found defendant's bloodstained trousers.
Captain Hocker, an official of San Quentin Prison, testified that the officers brought defendant to his office between 9 a.m. and 10 a.m. In order to examine defendant for superficial cuts and scratches, Captain Hocker requested that defendant strip to the waist. Immediately thereafter defendant dressed again. When defendant was shown the jacket on which his name appeared he made no comment, but upon being told that Nevarez was dead defendant wept. Captain Hocker then requested Officer Glazier to take defendant to the hospital laboratory in order that a technician might remove and test some brown flecks on defendant's hands which appeared to be dried blood. After defendant's return about an hour later, Mr. Midyett from the district attorney's office arrived.
Mr. Midyett and Captain Hocker testified that early in the afternoon, in the course of an interrogation lasting about two hours, defendant admitted the killing. Both testified, further, that on the next morning, December 13, at his cell in the adjustment center, defendant, in the presence of Mr. Midyett, gave a written statement. Thereafter, defendant escorted Mr. Midyett and a prison officer over the route he had taken in the course of the killing, discussing with them certain details of the crime. On December 15, and after codefendant Jiminez had been apprehended on suspicion of complicity, a third interrogation took place. On this occasion defendant implicated Jiminez as the accomplice who held Nevarez.
At the trial Captain Hocker testified that he not only
Defendant's testimony on voir dire conflicted sharply with the testimony of the officers. Defendant claimed that he had not freely and voluntarily confessed, but had fabricated the confession partly because he feared threats made by Captain Hocker at an initial interrogation on the morning of December 12. This was the only occasion upon which he and Captain Hocker engaged in conversation alone and without benefit of a tape recorder. Defendant further claimed that upon hearing of the death of Nevarez, who was his friend, he became grief-stricken and susceptible to influence, and that moreover he was under the narcotic effects of glue.
Defendant also testified that Captain Hocker forced him to strip and stand completely naked in his office for some 20 minutes or more. He stated that Captain Hocker swore at him and threatened to brand him an informer and turn him loose in the prison yard to be subjected to the retribution of the other prisoners if he did not cooperate. Finally, defendant claimed that Captain Hocker indicated that he would see that defendant did not get the death penalty if he confessed, thus implying that defendant would not be prosecuted under Penal Code section 4500. Defendant further testified that the influence of these coercive pressures continued in his mind so that he subsequently fabricated the confessions to avoid placing his life in jeopardy at the hands of other prisoners because they might be told that he informed on the real culprit. Captain Hocker denied these facts in every detail and stated that he treated defendant respectfully in view of his obvious remorse.
Defendant argues that Captain Hocker's language and inducements in extracting a confession from Jiminez indicate the truth of his own assertion of coercion. The trial court did in fact rule that the Jiminez confession was the result of coercion. The treatment accorded Dorado, however, differed from that given Jiminez. This difference, Captain Hocker explained, occurred because Dorado's attitude was quiet and subdued, so that no one could be angry with him, and because he confessed readily under interrogation, whereas Jiminez
Although we accept the finding of the trial court that the confessions of defendant were not obtained by coercion, we have concluded that they should not have been admitted into evidence under recent rulings of the United States Supreme Court. In a long series of cases that court has been troubled by confessions obtained without protection of counsel;
Massiah holds that the prosecution cannot introduce into evidence defendant's "own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel." (377 U.S. at p. 206.) Defendant, who had been indicted for violation of the federal narcotics laws, had retained counsel. After defendant's release on bail, a federal agent arranged with one Colson, who had been jointly indicted with defendant, for the installation in Colson's car of a radio transmitter. This device enabled the agent, through a receiving set in a car parked down the street, to listen to Colson's conversation with defendant. The statements of defendant thus elicited were presented to the
Escobedo recognizes that this critical stage may be reached before indictment. In that case a 22-year-old defendant was arrested and interrogated about the fatal shooting of his brother-in-law. After retaining a lawyer, he obtained his release on habeas corpus because of the insufficiency of the evidence against him. Ten days later, upon being told by one DiGerlando that Escobedo had fired the fatal shots, the police again arrested Escobedo and brought him to police head-quarters between 8 and 9 p.m. During the ensuing interrogation, Escobedo repeatedly requested to see his lawyer, who arrived at the station about 10:30 p.m. that evening, but the police ignored his request and continued their questioning. By 10:15 p.m. they had elicited from Escobedo an admission which indicated that he knew something of the crime. By 11:30 p.m. he had given the police and the prosecution attorneys a full confession.
The United States Supreme Court held that "where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied `the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as `made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S., at
The facts of the instant case bring it squarely within the rule of Escobedo with the exception that Dorado did not retain or request counsel. Thus the two cases parallel each other in the following respects: (1) The investigation in the instant case had ceased to be a general inquiry into an "unsolved crime" and had begun to focus on defendant. The weight of the circumstantial evidence recited above and available to the officers at the point of interrogation provided reasonable grounds for focusing upon defendant as the particular suspect. If anything, the evidence against defendant at the time of interrogation was more conclusive than that marshalled against Escobedo. (2) The defendant was in custody. (3) The officers did not merely engage in general questioning but subjected defendant to a process of interrogations that lent itself to obtaining incriminating statements. Their purpose in so doing was "to elicit a confession" (Escobedo v. Illinois, supra, 378 U.S. 478, 492), "to `get him' to confess his guilt despite his constitutional right not to do so." (Escobedo v. Illinois, supra, 378 U.S. 478, 485.) (4) The record shows that the authorities did not in any manner warn defendant of his "absolute constitutional right to remain silent." (Id. at p. 491.) Captain Hocker and Mr. Midyett both testified that no such warning was ever given to defendant.
The question presented here, then, centers upon whether the failure of the accused to retain or request counsel justifies the application of a rule of law different from that established in Escobedo. The basic reasoning of the court's opinion in Escobedo will not permit such a formalistic distinction.
As we shall explain in more detail hereinafter, Escobedo holds that defendant's right to counsel matured at the accusatory stage: "the `stage when legal aid and advice' were most critical" to defendant; therefore, his vocalization of that right cannot be the determinative factor. The United States Supreme Court and many other courts have recognized that in the situation in which a defendant is entitled to counsel the request itself can be no more than a formality; indeed, any
Escobedo holds that a defendant must be afforded his right to counsel as soon as "... the process shifts from investigatory to accusatory — when its focus is on the accused and its purpose is to elicit a confession...." (Escobedo v. Illinois, supra, 378 U.S. 478, 492.) The power of the state to extract from the individual the incriminating statements which may be crucial to his defense can take effect before the formality of indictment. After custody the interrogation may become the critical stage in the establishment of the prosecution's case. "There is necessarily a direct relationship between the importance of a stage to the police in their quest for a confession and the criticalness of that stage to the accused in his need for legal advice." (Italics added.) (Id. at p. 488.) In holding that defendant should have "the guiding hand of counsel" (Powell v. Alabama (1932) 287 U.S. 45, 69 [53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527]) at the accusatory stage, Escobedo states, "This was the `stage when legal aid and advice' were most critical to petitioner. Massiah v. United States, supra at 204. It was a stage surely as critical as was the arraignment in Hamilton v. Alabama, 368 U.S. 52 [82 S.Ct. 157, 7 L.Ed.2d 114], and the preliminary hearing in White v. Maryland, 373 U.S. 59 [83 S.Ct. 1050, 10 L.Ed.2d 193]. What happened at this interrogation could certainly `affect the whole trial,' Hamilton v. Alabama, supra, at p. 54, since rights `may be as irretrievably lost, if not then and there asserted, as they are when an accused represented by counsel waives a right for strategic purposes.' Ibid." (Id. at p. 486.)
In a decision that preceded Massiah and Escobedo this court recognized that the accused has a right to counsel at this critical accusatory stage.
The United States Supreme Court and other courts have recognized that in a situation in which a suspect has the constitutional right to counsel it cannot be lost because he did not request or retain counsel. Resting its ruling upon earlier United States Supreme Court cases, the United States Court of Appeals for the Ninth Circuit in the very recent case of
In Escobedo itself, Justice White's dissenting opinion, in which Justices Clark and Stewart concurred, pointed out: "Although the opinion purports to be limited to the facts of this case, it would be naive to think that the new constitutional right announced will depend upon whether the accused has retained his own counsel, cf. Gideon v. Wainwright, 372 U.S. 335 [83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733]; Griffin v. Illinois, 351 U.S. 12 [76 S.Ct. 585, 100 L.Ed. 891, 55 A.L.R.2d 1055]; Douglas v. California, 372 U.S. 353 [83 S.Ct. 814, 9 L.Ed.2d 811]; or has asked to consult with counsel in the course of interrogation. Cf. Carnley v. Cochran, 369 U.S. 506 [82 S.Ct. 884, 8 L.Ed.2d 70]. At the very least the Court holds that once the accused becomes a suspect and, presumably, is arrested, any admission made to the police thereafter is inadmissible in evidence unless the accused has waived his right to counsel." (378 U.S. at p. 495.)
Both the court of appeals and the dissent in Escobedo cite and rely upon the language of the United States Supreme Court in Carnley v. Cochran (1962) 369 U.S. 506, 513 [82 S.Ct. 884, 8 L.Ed.2d 70]: "... it is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request. In McNeal v. Culver [365 U.S. 109 (81 S.Ct. 413, 5 L.Ed.2d 445)], supra, the petitioner's allegation that he had requested counsel was countered by a denial in the return that `petitioner's constitutional rights were violated by the court's alleged refusal to appoint counsel in his behalf,' and the State Supreme Court noted that the record was silent as to any
Massiah leaves unchallenged the statement in Carnley v. Cochran, supra, 369 U.S. 506, 514, that "requesting counsel" is a "formality upon which ... his [defendant's] right may not be made to depend." Indeed, Massiah refers to New York cases which did not predicate the right to counsel upon a request. These cases sustained that right at post-indictment or post-arraignment interrogations without regard to whether the accused had asked for counsel. (People v. Di Biasi (1960) 7 N.Y.2d 544 [200 N.Y.S.2d 21, 166 N.E.2d 825]; People v. Waterman (1961) 9 N.Y.2d 561 [216 N.Y.S.2d 70, 175 N.E.2d 445]; People v. Meyer (1962) 11 N.Y.2d 162 [227 N.Y.S.2d 427, 182 N.E.2d 103]; People v. Rodriquez (1962) 11 N.Y.2d 279 [229 N.Y.S.2d 353, 183 N.E.2d 651].) Further, in People v. Donovan (1963) 13 N.Y.2d 148 [243 N.Y.S.2d 841, 193 N.E.2d 628], the New York Court of Appeals held that an accused had been denied his right to counsel if a lawyer hired by his family was not allowed to consult with him at the preindictment interrogation, even though he did not request such counsel.
Finally, we must recognize that the imposition of the requirement for the request would discriminate against the defendant who does not know his rights. The defendant who does not ask for counsel is the very defendant who most needs counsel.
Escobedo also holds that the accused has the right not to incriminate himself and to remain silent,
Escobedo repeatedly emphasizes that defendant in that case had not been informed of his absolute right to remain
We conclude, then, that defendant's confession could not properly be introduced into evidence because (1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements, (4) the authorities had not effectively
Only when the investigatory stage has become an accusatory one, that is, when it has begun to focus on a particular suspect, the suspect has been taken into police custody, and the police have carried out a process of interrogations that lends itself to eliciting incriminating statements, does the doctrine of Escobedo apply and the confession given without the required warning or other clear evidence of waiver become inadmissible evidence. Moreover, an important consideration in determining whether the accusatory stage had thus been reached must be a careful concern that there be no interference with the legitimate police investigation of an unsolved crime.
Although the Attorney General urges that law enforcement will be severely handicapped by adhering to the requirements of rulings based on Escobedo, this argument as to law enforcement was raised in Escobedo itself and rejected by the United States Supreme Court. Moreover, we cannot overlook the consequences of a too restricted and limited reading of the decisions of the United States Supreme Court. Law enforcement will be harmed, not helped, by advising police officers, for example, that it is only when the suspect demands counsel that Escobedo applies, notwithstanding that
We cannot presume to evaluate the merits of the rulings of the United States Supreme Court; we merely apply and enforce its decisions as we must. We note in passing, however, that many of the forebodings of law enforcement officials as to the effect of the rulings based on Escobedo have not been demonstrated by experience. Thus, prior to the rendition of the decisions, at least one of the larger counties of California,
Summarizing the principal issue on the confession, we must decide this case in conformity with the decisions of the Supreme Court of the United States. That court having declared the content of a constitutional right, it is our function to enforce it in situations wherever it logically applies. To do otherwise would, in effect, be to distort the United States Constitution itself.
The Alleged Incompetency and Insufficiency of the Evidence to Establish a Valid Imprisonment Under a Life Sentence
(a) The alleged incompetency of the prosecution evidence to establish defendant's term.
If defendant were validly incarcerated in San Quentin prison under an indeterminate life sentence, his guilt of malicious assault with a deadly weapon, which resulted in his fellow prisoner's death, would subject him to the death penalty automatically imposed by Penal Code section 4500. This court has consistently upheld the constitutionality of Penal Code section 4500 in its application to prisoners undergoing indeterminate life sentences. (See People v. Jefferson (1956) 47 Cal.2d 438, 442 [303 P.2d 1024]; People v. Wells (1949) 33 Cal.2d 330, 334-337 [202 P.2d 53]; People v. Finley (1908) 153 Cal. 59, 62 [94 P. 248]; affirmed in Finley v. California (1911) 222 U.S. 28, 31 [32 S.Ct. 13, 56 L.Ed. 75].)
Defendant urges that this court should change the above rule because of the adoption of the indeterminate sentencing procedure and because "the Legislature in 1901 in enacting" the automatic death penalty at no time contemplated the possible application of the statute to approximately one out of every three prisoners. Such a basic reconstruction of the statute must, however, lie with the Legislature. (See People v. Wells, supra, at p. 336.)
Robert Powers, the record clerk at San Quentin State Prison, testified that he served as official custodian of all inmate records and that he supervised entries upon each prisoner's warden's inmate record card concerning the fixing of terms and paroles based upon certifications of Adult Authority action. Clearly the custodian of records may competently testify concerning such entries and their sources. (See People v. Jefferson (1956) 47 Cal.2d 438, 443 [303 P.2d 1024]; People v. Wells (1949) 33 Cal.2d 330, 338 [202 P.2d 53].) Indeed, defense counsel stipulated that the inmate record card indicating that defendant was serving a life term could be admitted into evidence.
The prosecution also properly introduced the certifications of Adult Authority action, which constituted competent evidence to establish that defendant's term was unfixed on the date in question. (See In re Smith (1949) 33 Cal.2d 797, 800-801 [205 P.2d 662]; Code Civ. Proc., § 1918, subd. 6; Pen. Code, § 969b.) Finally, defendant's testimony tended to corroborate these records since he revealed an awareness that upon his return to prison following a parole violation, his sentence had been increased to maximum.
This evidence shows that defendant originally suffered imprisonment in 1957 for violation of Health and Safety Code section 11500 and that he received a sentence for the term then prescribed by law of five years to life. After the Adult Authority twice redetermined defendant's term following his imprisonment, it finally released him on parole in the spring of 1961. At the time defendant violated his parole, the relevant certification of Adult Authority action dated June 22, 1961, states: "Parole cancelled — return to prison ordered for the reasons set forth in the report of which this order is a part. (Term refixed at maximum in accordance with Resolution adopted 3-6-51.)"
Resolution No. 171 of the Adult Authority adopted March 6, 1951, provides that "effective April 1, 1951, when paroles are cancelled, suspended, and/or revoked, the previous action fixing term will be rescinded ... and the prisoner shall be considered as serving the maximum term as prescribed in the Indeterminate Sentence Law, subject to further order of the Adult Authority...." After its order of June 22, 1961, the Adult Authority did not redetermine or refix defendant's term. The effect of that order, by reference to resolution
Defendant argues that in Wells and Jefferson, supra, defendant's term had not been fixed, and hence the evidence in those cases sufficiently proved that defendant "was a person undergoing a life sentence" under Penal Code section 4500, but that here the term had been originally fixed at five years and the certifications of the Adult Authority cannot suffice to prove anything more. To reach this strained result, however, defendant must completely ignore the order of June 22, 1961, and its reference to "Resolution Adopted 3-6-51."
(b) The alleged invalidity of the order of the Adult Authority of June 22, 1961.
We find no merit in defendant's contention that the June 22, 1961, order of the Adult Authority must fail for the following alleged three reasons: (1) It violated defendant's constitutional rights since the Adult Authority proceeded without affording to him notice or the opportunity for a hearing. (2) The prosecution failed to establish that the Adult Authority based its revocation of defendant's parole, and the increase in his term, upon good cause. (3) Defendant suffered double jeopardy in that, without according him a full hearing, the Adult Authority redetermined, and thereby increased, his term, which had theretofore been fixed.
The Alleged Failure of the Court Properly to Instruct the Jury.
Defendant does not allege that the court rejected such instructions, nor does the clerk's transcript include any rejected instructions; we must, therefore, assume that defendant did not request them. The issue then becomes whether the court must render these instructions on its own motion. We cannot uphold such a requirement.
The court properly instructed the jury and twice repeated the elements of the charged offense; it emphasized that the plea of not guilty placed in issue "every material allegation." Thus the court directly presented to the jury the question of whether defendant was undergoing a life sentence; we see no reason for holding that the court should have further underscored this issue. (People v. Jefferson (1956) 47 Cal.2d 438, 444 [303 P.2d 1024].)
Nor did the court err in failing to instruct the jury concerning the lesser included offenses specified by defendant. This court has repeatedly held that even those instructions requested concerning lesser included offenses need not be given in the face of a charge of violation of Penal Code section 4500. (See People v. Jefferson, supra, 47 Cal.2d 438, 444; People v. Oppenheimer (1909) 156 Cal. 733, 745 [106 P. 74]; People v. Carson (1909) 155 Cal. 164, 175-177 [99 P. 970].) Moreover, the trial court instructed the jury on the subject of malice as well as assault with a deadly weapon, so that defendant did not suffer a total deprivation of instructions on lesser offenses.
The judgment is reversed.
Traynor, C.J., Peters, J., and Peek, J., concurred.
I dissent. I would affirm the judgment finding defendant guilty of violating section 4500 of the Penal Code,
In that case, the court said: "We hold only that when the process shifts from investigatory to accusatory — when its focus is on the accused and its purpose is to elicit a confession — our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer." (P. 492.)
Referring to the "circumstances here" (that is, in Escobedo v. Illinois, supra), the court said: "We hold, therefore, that where, as here, (1) the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, (2) the suspect has been taken into police custody, (3) the police carry out a process of interrogations that lends itself to eliciting incriminating statements, (4) the suspect has requested and been denied an opportunity to consult with his lawyer, and (5) the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied `the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as `made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S., at 342, [83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733] and that no statement elicited by the police during the interrogation may be used against him at a criminal trial." (378 U.S. 490 et seq.) (Numbers and italics added.)
It is conceded in the instant case that element No. 4 was not present, that is, defendant did not request, and was not denied, an opportunity to consult with his lawyer.
Under the precise and limiting language used by the Supreme Court in the Escobedo case, it is clear that the facts in the instant case are different and that the Escobedo case is not applicable.
We should not extend the rule of the Escobedo case. This court should take a realistic view of the holding in Escobedo v. Illinois, supra, so as to support law enforcement officers when their activities are not clearly unlawful, and not to increase their difficulties in preventing future murders and other crimes.
We should support them in their lawful efforts, however zealous, to protect citizens and to eliminate crime and enforce the laws of this state. We should not take an unrealistic view of the rules of law and make it more difficult to apprehend
In People v. Hartgraves, 31 Ill.2d 375 [202 N.E.2d 33], the Supreme Court of Illinois, in discussing Escobedo v. Illinois, at page 36 [202 N.E.2d] said: "We do not, however, read the Escobedo case as requiring the rejection of a voluntary confession because the State did not affirmatively caution the accused of his right to have an attorney and his right to remain silent before his admissions of guilt."
Second. Article VI, section 4 1/2, of the California Constitution, in my opinion, requires an affirmance of the judgment in this case. That section provides: "No judgment shall be set aside ... in any case, on the ground of ... the improper admission ... of evidence ... or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Italics added.) (See People v. Hines, 61 Cal.2d 164, 175 et seq., 181-182 et seq. [37 Cal.Rptr. 622, 390 P.2d 398].)
An examination of the record in the present case leads me to the "opinion" that there is no doubt of the guilt of defendant and that he was not prejudiced by not being advised of his right to counsel. He had been convicted of previous criminal offenses, and there is a presumption that on such occasions he was informed of his right to counsel. (Code Civ. Proc., § 1963, subd. 15.) In addition, he had been in the state penitentiary, and it is a matter of common knowledge that the inmates discuss their rights and are informed, among other things, of their right to counsel.
I am thoroughly in accord with Mr. Justice Schauer's statement in his dissenting opinion in People v. Hines, supra, 61 Cal.2d 164, 181: "The mandate of section 4 1/2, article VI, is clear and is unequivocally recognized by this court in People v. Watson (1956) supra, 46 Cal.2d 818, 836-837  [299 P.2d 243]; likewise clear is the limitation of section 4 on our powers of review to `questions of law alone, in all criminal cases where judgment of death has been rendered.' These are not just statutes; these are constitutional bulwarks. By these sections the People, properly concerned for their own (and loved ones') safety, have demonstrated that a judgment of death, once rendered, is not lightly to be set aside. Mere speculation that judicially declared procedural error may
"It bears repeating that in Watson we said `[T]he test, as stated in any of the several ways, must necessarily be based upon reasonable probabilities rather than upon mere possibilities; otherwise the entire purpose of the constitutional provision would be defeated.' (People v. Watson (1956) 46 Cal.2d 818, 837  [299 P.2d 243].) Today, in the case at bench, it appears to me that by the majority's ruling `the entire purpose of the constitutional provision [is] defeated.'"
Again, it is my opinion that the judiciary should consider the protection of innocent people in this state and endeavor to support law enforcement officers in their efforts to prevent the increase of crimes now taking place at an alarming rate in this and other states of the United States.
We should recognize that the prevention of crime may be best enforced by the prompt conviction and punishment of criminals and should endeavor in every legitimate manner to protect our innocent citizens and to avoid unnecessary reversals of conviction of manifestly guilty criminals, thereby better protecting the law-abiding public.
BURKE, J., Dissenting.
In Escobedo v. Illinois, 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977], the Supreme Court of the United States repeatedly limited the application of the rules it was establishing to circumstances such as were present in that case. Such expressions as "Under these circumstances," and "Where, as here," are utilized repeatedly, indicating that the court did not intend such rules to be applied universally regardless of the circumstances of the particular case.
This cautionary qualification is reiterated in the Supreme Court's reference to the holding in Crooker v. California, 357 U.S. 433 [78 S.Ct. 1287, 2 L.Ed.2d 1448], which the Supreme Court stated did not compel a result contrary to its ruling in Escobedo. The court stated: "In that case [Crooker] the Court merely rejected the absolute rule sought
Similarly, here, Dorado was a 26-year-old convict serving a life term in prison for sale of narcotics at the time the malicious assaults with a deadly weapon, resulting in a fellow prisoner's death, were charged against him.
Justice McComb notes in his dissent that Dorado had been convicted of previous criminal offenses, and there is a presumption that on such occasions he was informed of his right to counsel upon arraignment and during trial. (Code Civ. Proc., § 1963, subd. 15.) In addition, he had been in the state penitentiary and it is a matter of common knowledge that the inmates discuss and are well aware of their constitutional rights.
The degrees of sophistication in criminal matters of Danny Escobedo and Robert Dorado are poles apart, and the "circumstances" of this case differ so widely from those of Escobedo as to render the rules laid down in Escobedo inapplicable in this case.
Justice McComb alludes to the further distinguishing feature that one of the basic elements of the Escobedo rule is not present in this case, namely, that "(4) the suspect has requested and been denied an opportunity to consult with his lawyer." The majority opinion recognizes this distinction
I concur in the view of the majority that the right to be furnished counsel and to be advised of the right to counsel does not depend upon a request. If the contrary were the rule it would favor the prison-wise criminals and discriminate against the ignorant, the uneducated or the mentally retarded. I agree with the majority that "the constitutional right does not arise from the request for counsel but from the advent of the accusatory stage itself." I differ with the majority in its apparent assumption that in every case, regardless of distinguishing circumstances, if such accusatory stage has in fact been reached, no confessions elicited from the accused by interrogations of the police may be properly received in evidence unless it be shown that the accused was expressly advised by his interrogators of his right to remain silent and of his right to counsel or he has knowingly waived such right. I believe the crucial test at the accusatory stage is whether we may reasonably infer from the circumstances (and this, the United States Supreme Court makes clear, means all the circumstances) of the particular case that the accused was aware of his constitutional rights. This is the test that court applied in both Crooker and Escobedo.
Were the accused a law professor, a lawyer or a former policeman, under the holding of the majority, before the confession of such a person would be admissible, it would be necessary to show that during the process of interrogation and before the incriminating admissions were obtained, the accused had been informed of his constitutional rights or had waived them. Under Escobedo the test to be applied by the trial court or a reviewing court would be: Under the "sum total of the circumstances" of the particular case, was the law professor, lawyer or former policeman "fundamentally prejudiced" by the failure of the interrogators to inform
Forearmed with the rule of Escobedo, it would be better practice for police during such an interrogation to routinely advise the accused of his rights, thereby avoiding conjecture at the trial and appellate level of the effect of failure to so advise him. However, absent a showing that such advice was given, this court should not extend the rule of Escobedo so that as a matter of law, rigid and inflexible, and notwithstanding the degree of sophistication or the criminal record and experience of the accused, no confession thus obtained may be received in evidence.
As noted, the majority holds that the mere utterance of the words, "I want a lawyer," do not create the right to counsel — it is the totality of the circumstances present which brings that right into maturity; similarly, it is not the mere utterance of the words, "You are entitled to an attorney and to remain silent," which render admissible in evidence the subsequent utterances of the accused. It is the "sum total of circumstances" present which must be weighed to determine whether the accused was unaware of his rights and, therefore, was "fundamentally prejudiced." There are many situations where the mere utterance of such words by an interrogator would not render a subsequent confession admissible. Thus, the accused's awareness of his constitutional rights is the crucial test and not whether someone informed him of such rights immediately before eliciting the incriminating statements.
The circumstances present in Dorado, established by the record, indicate that as a previously convicted felon he had been informed of his constitutional rights. His degree of criminal sophistication establishes this as fully as did the one year of legal education establish knowledge and waiver in Crooker. Such interpretation does not present any inconsistency between the rule in Crooker and that in Escobedo. "Under the circumstances" of this case, namely, the defendant's criminal sophistication, there is known, not presumed, waiver of any purported right to be unnecessarily advised of that which he already knows.
The mandate of section 4 1/2 of article VI of the California Constitution requires this court to review the entire record to determine not only if there was error in the admission of evidence, as is asserted here with respect to Dorado's confession to the authorities, but the probability that a result more
For these reasons I dissent.
[*] Also termed the "Friendly-Unfriendly" act. For a description of this technique, see Inbau and Reid, Criminal Interrogation and Confessions (1962) pp. 58-60.