Opinion
Rehearing Granted.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Woodruff J. Deem, Dist. Atty., Ronald H. Gill, Chief Appeals Deputy, and John P. McCormick, Deputy Dist. Atty., for plaintiff and appellant.
Richard E. Erwin, Public Defender, and Kenneth Cleaver, Asst. Public Defender, for defendant and respondent.
HUFSTEDLER, Associate Justice.
The People appeal from an order granting defendant's motion to dismiss an information pursuant to section 995 f the Penal Code. The sole question on appeal is whether the trial court erred in holding that the defendant's confession was inadmissible because it was obtained without an adequate showing that the defendant, prior to confessing, waived his constitutional right to silence and to counsel.
A two-count complaint was filed against the defendant charging him with taking Mr. Otho Bell's automobile on the night of May 14, 1967 (violations of Vehicle Code, § 10851 and Penal Code, § 487). At the preliminary hearing Mr. Bell described the theft of his automobile and stated that he had given no one permission to take it. The only other witnesses were Officer Adams, of the California Highway Patrol, and Detective Wire, of the Ventura police force. Officer Adams took the defendant into custody in San Luis Obispo on May 16, 1967, under circumstances which were never described, but he legality of which is unchallenged. Officer Adams advised defendant of his constitutional rights in a manner adequate to comply with the Dorado-Escobedo cases, but he did not include the Miranda
Without the defendant's confession, there was no evidence introduced connecting him with the automobile theft. The public defender moved to strike the testimony of Detective Wire relating the confession on the ground that it was obtained in violation of his Miranda rights because he had earlier refused to respond to Adams's questioning in the absence of a lawyer. The magistrate denied the motion and bound the defendant over for trial on both counts.
On June 21, 1967, an information was filed charging defendant with the same offenses as those named in the original complaint, and further alleging two prior felony convictions against him. The defendant's attorney moved to dismiss the information on the ground that the defendant's confession had been improperly admitted upon the same basis previously urged before the magistrate. The court granted the motion and filed a memorandum opinion, explaining that the defendant having once asserted his right to remain silent and his right to the presence of an attorney during his interrogation, no further interrogation could be conducted in the absence of counsel without an "affirmative act on his part to indicate a change of mind until after the second warning. The second warning and inquiry as to whether he desired to talk, therefore, constituted the subtle compulsion disapproved by the Miranda decision."
Did the trial court err in concluding that the People had failed to carry the burden of proving that defendant had waived his right to counsel and his privilege against self-incrimination?
To meet its burden the People had to prove that (1) defendant knew and understood his constitutional rights as stated in the Miranda case, and (2) defendant thereafter freely and voluntarily gave up those rights. The evidence, without conflict, unquestionably established defendant's knowledge and understanding of his rights. Detective Wire fully informed him about them and defendant said he understood them. His understanding was further evidenced by his statement to officer Adams the previous day refusing to respond to questioning without the presence of a lawyer and by the cessation of interrogation following his assertion of his rights. The trial court concluded that the evidence was inadequate to prove that he had freely and voluntarily yielded his rights before he confessed. The court perceived a "subtle compulsion" from the second warning and inquiry, which, in its view, negated the voluntariness of his statement, in absence of any spontaneous affirmative expression by the defendant that he had changed his mind.
Proof that a defendant voluntarily gave up his rights to counsel and to silence In People v. Hill (1967) 66 Cal.2d 536, 553, 58 Cal.Rptr. 340, 351, 426 P.2d 908, 919, one of the codefendants, Saunders, challenged the admissibility of his extrajudicial statement. Saunders argued that his statement was necessarily involuntary because it was made after he had requested counsel. There, as here, the initial interrogation was terminated after Saunders requested counsel. Later, upon interrogation by different officers, Saunders made statements to the police in the absence of counsel. The court said, "Where the authorities ignore a request for counsel and continue an interrogation, the right of counsel has been denied. (People v. Luker, supra, 63 Cal.2d 464, 474, 47 Cal.Rptr. 209, 407 P.2d 9.) However, there is no reason why, once having requested counsel and the request having been recognized by a cessation of interrogation, the accused cannot elect to proceed without counsel if that election is freely, knowingly and intelligently made."
The Hill case is not controlling, of course, because Hill was tried before the effective date of the Miranda decision. In the Hill case no questions were asked of Saunders "until he indicated that he wished to make a statement." (Id. at p. 553, 58 Cal.Rptr. at p. 351, 426 P.2d at p. 919.) In the case at bench the defendant did not say that he wished to make a statement until after Detective Wire asked him if he wanted to do so. We do not believe that a suspect's willingness to give up his rights can be resolved simply by a determination of who opened the conversation.
The trial court relied heavily upon the statement in Miranda: "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise * * * If the individual states that he wants an attorney, the interrogation must cease until an attorney is present * * * " (Miranda v. State of Arizona, supra, 384 U.S. at pp. 473-474, 86 S.Ct. at p. 1627, 16 L.Ed.2d 694.) We do not think the Supreme Court meant that once an interrogation has begun and the suspect has indicated his intent to exercise his privilege and to insist upon the presence of counsel, he can never thereafter be questioned again without counsel. The court explained later in the opinion, "if the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." (Id. at p. 475, 86 S.Ct. at p. 1628.)
When the suspect asserts his constitutional rights, the interrogation must stop, not simply be interrupted by a pause for the introduction of a fresh relay of law enforcement officers. If the interrogation is merely temporarily interrupted and then resumed, the inference unmistakably arises that a suspect who thereafter talks did so under some kind of police pressure. When, however, the questioning of a suspect is by no means The committing magistrate could have properly concluded from an examination of the totality of the circumstances that the prosecution had carried its burden of proving the defendant's waiver of his rights before his confessed. The trial court erred in holding as a matter of law that the confession was inadmissible.
The order is reversed.
KAUS, P.J., and STEPHENS, J., concur.