Opinion
Ronald M. Sohigian, Beverly Hills, under appointment by the Court of Appeal, for appellant.
Thomas C.Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Brian Amer, Deputy Atty. Gen., for respondent.
MOSS, Associate Justice.
Defendant was charged with robbery while armed with a deadly weapon in violation of section 211 of the Penal Code (Count I) and assault with a deadly weapon with intent to commit murder in violation of section 217 of the Penal Code (Count II). By amended information he was also charged with four prior convictions, all of which were stricken prior to trial. Before trial his case was severed from that of a codefendant, Stanley Miner. Defendant was convicted by a jury as charged and sentenced to state prison on each count, the sentence as to Count II to be stayed until satisfaction of the sentence on Count I, at which time the stay was to become permanent.
Defendant raises two contentions: (1) the trial court committed prejudicial error in ruling that the prior convictions could be used to impeach defendant because the prosecution had not sustained its burden with respect to showing that in those convictions defendant had been represented by counsel; (2) the court erred in admitting into evidence tape recordings containing incriminating statements made by defendant in an interview with police officers.
The crime occurred shortly after midnight on May 15, 1967. At about 11 p. m. on May 14 the victim, James Ramos, met defendant and Miner at a bar and entered into casual conversation with them. Ramos, who had about $50 in currency on his person, bought the two men several drinks. After approximately an hour's discussion in two bars, the men agreed to leave for Mexico, where Ramos had mentioned he was A revolver was received in evidence as People's exhibit 4. It was identified by B. H. Nunnelee as the one which he had kept at his restaurant and left on the counter when he closed up each day. Defendant, who stayed with Nunnelee each night to close the restaurant, had seen the gun on the counter several times and was one of no more than five people who knew where it was kept. The gun had been stolen the morning of May 14, 1967. Two employees of the restaurant testified that several times prior to the robbery defendant had inquired about the possibility of obtaining a gun and had promised each a percentage of the 'action' if he could acquire one. One of the employees said that about a week or ten days before the robbery defendant had asked to borrow Nunnelee's gun, but the employee had believed at the time that defendant was joking. The revolver was also identified by a gas station operator as one which he had purchased from Miner on approximately May 22, 1967.
The Prior Convictions.
Defendant contends that the trial court committed prejudicial error in denying, in part, his motion to strike from the information the allegation of four prior felony convictions. The motion, which was made before trial, was based on defendant's claim that there was no showing that he had been represented by counsel in the prior proceedings. The court overruled the motion for purposes of impeaching defendant, indicating that any objection to use of the convictions during trial would be rejected. This ruling, argues defendant, prejudiced his case in that it persuaded his counsel not to call him as a witness.
Defendant's argument that thr trial court erred in its ruling because the prosecution failed to prove that defendant had been represented by counsel must be rejected. As People v. Coffey, 67 Cal.2d 204, 217-218, 60 Cal.Rptr. 457, 430 P.2d 15, points out, the burden of proof lies with defendant to show that he was not represented. Since defendant produced no evidence to this effect, the trial court could properly rule that the convictions were admissible.
Nevertheless, as defendant points out, the court failed to adhere strictly to the procedures outlined in Coffey. The court in that case held that in the course of a pretrial hearing to determine the constitutional validity of prior convictions 'the prosecution shall first have the burden of producing evidence of the prior conviction sufficient to justify a finding that defendant 'has suffered such previous conviction.' [citation] * * * [After] this prima facie showing has been made, the defendant shall thereupon have the burden of producing evidence that his constitutional right to counsel was infringed in the prior proceeding at issue.' (67 Cal.2d at p. 217, 60 Cal.Rptr. at p. 456, 430 P.2d at p. 24.) Since there was here no evidence at all regarding the existence of the prior convictions, the requirements of Coffey were not satisfied. We disagree, however, with defendant's claim that this error is reversible. During the hearing on the convictions defendant did not object to the prosecution's failure to prove that he had been convicted. He objected only to the method by which the prosecution offered to prove that defendant had been represented by counsel; he did not challenge and indeed seemed at that time to assume the existence of those convictions. His failure to interpose a timely objection prevented the prosecution from remedying an error readily curable at the trial level and, under these circumstances, defendant waived his right to insist that the Coffey procedure be followed.
Moreover, defendant was not prejudiced by the failure of the trial court to require the prosecution to make a prima facie showing that athe prior convictions existed at the time the court denied defendant's motion to strike the allegation of those convictions. At the trial he could have required the prosecution to make such showing by taking the witness stand and challenging any attempted impeachment based upon the existence of those convictions. Since defendant could thus at any time have required the prosecution to meet the only burden under Coffey which it had not yet met, the failure to produce the necessary proof before trial could not have been a factor in his counsel's decision to keep him off the stand.
The Use of the Tape Recording.
Defendant claims that his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, were violated by the admission into evidence of a tape recording of an interview with police during which he made self-incriminating statements. The court specifically found after a voir dire examination of defendant and the arresting officer that the statements were made voluntarily and that defendant's rights under Miranda had been adequately safeguarded.
Although the evidence as to the events which occurred between the arrest and the interview was to a certain degree conflicting, we must accept the version favoring the People, who prevailed below, to the extent that that version is supported by the record. Viewed under that standard the record shows that defendant was arrested on May 22, 1967, at 3 p. m., that he was at that time advised by Sergeant Lloyd Neal of his rights under Miranda, and that he then requested a lawyer and indicated his desire to remain silent. On the way to the police station Sergeant Neal asked defendant no questions other than where he lived. The next point of contact between defendant and Sergeant Neal occurred at 7:30 p. m. the same day, when the officer summoned defendant from his cell in order to have him observe Miner make a statement. The officer did not talk to defendant then; defendant made two remarks, one to the effect that he wanted to consult an attorney and the other to the effect that Miner was innocent. At approximately 8 p. m., defendant requested a jailor to summon Sergeant Neal so that he could speak with him. Defendant was taken to an interrogation room. There he asked Sergeant Neal to bring in Miner and indicated his willingness to have a stenographer present. Sergeant Neal repeated the Miranda warnings; without again asking for an attorney, defendant proceeded to make a statement.
The parties stipulated at trial that, if defendant were called to testify, he would claim that he had not eaten for two days prior to the statement. In the absence of any indication that the police knew of defendant's condition and attempted to take advantage of it, however, this fact could not be the basis for a claim that the Fifth Amendment was violated and could only affect the weight to be attached to the statement by the trier of fact.
Defendant contends that his statements were inadmissible because he had previously expressed a desire to remain silent and to have the services of an attorney. In support of this contention he relies upon the holdings in People v. Fioritto, 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625, and People v. Ireland,
People v. Hamilton, People v. Ireland, People v. Fioritto, People v. Tomita,The present case comes within the rule excepting volunteered statements from the ambit of the Miranda restrictions. Under the version of the facts which we must accept, Sergeant Neal at no time, either before or after defendant asserted his rights, asked more than routine questions, such as defendant's address. The only contact between defendant and officials until the interview in question, apparently, was the period during which defendant witnessed Miner's statement; the conversation then was limited to defendant's statements, 'He's [Miner's] innocent' and 'I want to talk to an attorney,' and thus could not be considered interrogation. Defendant was in his cell, unattended by interrogators , when on his own initiative and without police solicitation he summoned Sergeant Neal because, as defendant testified, 'I just wanted to say something.' With no process of custodial interrogation taking place before and at the time defendant made his decision to waive his rights and offer a statement, the Miranda presumption of coercion does not apply.
This case is distinguishable from Ireland despite the fact that in that case, too, there was no literal 'interrogation' initiated by the police at the time the defendant decided to confess. In that case the defendant requested an attorney after his arrest as he was being escorted to the police car. At the police station he was placed in an interrogation room and searched. After a 35-minute period, during which the defendant indicated a desire to talk and was told to wait, an officer arrived. He asked the defendant 'if he was willing to talk with me, and he said that he wanted to talk with someone and was I willing to listen to what he had to say.' In the ensuing conversation the defendant confessed to the murder for which he had been arrested. (70 A.C. at pp. 568-569, 75 Cal.Rptr. at p. 194, 450 P.2d at p. 586.) The court held that the confession was inadmissible because elicited by an 'interrogative process initiated by police after defendant had asserted his Fifth Amendment privilege and, under Miranda, was entitled to be free from such a process.' (70 A.C. at p. 573, 75 Cal.Rptr. at p. 197, 450 P.2d at p. 589.) Each aspect of the process was marked by a continuous police presence, even after the defendant asserted his rights, This conclusion is not disturbed by anything in the record as to what occurred during the interview itself. Defendant's trial counsel made no objections with respect to this aspect of the statements and his counsel on appeal challenges only the fact that Sergeant Neal asked questions; hence we need not consider whether any particular question or line of questioning was improper.
The deputy attorney general assigned to the case on appeal has informed this court by letter of March 10, 1969, that the tape recording of the interview has been misplaced by the officials of the superior court who are charged with custody of trial exhibits. Since, as indicated above, defendant did not raise any contentions at trial as to the content of the tape, and the only such contention on appeal involves the fact of questioning by Sergeant Neal, which issue, as we shall explain, may be resolved without listening to the tape, our decision is not affected by the unavailability of this evidence.
Defendant's claim is that his statements could not be regarded as volunteered because Sergeant Neal asked him questions throughout their conversation. People v. Matthews, 264 A.C.A. 630, 70 Cal.Rptr. 756; People v. Fioritto, supra, 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625, and the cases cited therein, do not disapprove of all questioning by police during a conversation initiated by the defendant. Even the strict standard of complete police passivity applied in Matthews recognizes that it is unnecessary for the police to be silent at every point and for the defendant's statement to be in the form of a monologue, provided that the initiative behind the making of the statement and its contents always remains with the defendant. Thus, as Matthews points out, the police may ask neutral questions, such as those intended to clarify volunteered statements, even though they do not have a right to interrogate him in order to expand the scope of his statement. (People v. Matthews, supra, 264 A.C.A. at pp. 640-641, 70 Cal.Rptr. 756.) Since defendant does not contend that by questioning him the police extracted information which he had not originally and independently intended to offer, we must reject his contention that the statements were the product of interrogation.
The judgment is affirmed.
FORD, P. J., and COBEY, J., concur.