People v. Duran

Page 595

189 Cal.Rptr. 595

140 Cal.App.3d 485

The PEOPLE, Plaintiff and Respondent, v. Jesse Albert DURAN, Defendant and Appellant.

A011244.

Cr. 21346.

Court of Appeal, First District, Division 4, California.

March 1, 1983.

As Modified on Denial of Rehearing March 22, 1983.

Hearing Denied June 2, 1983.

Quin Denvir, State Public Defender, Richard S. Kessler, Mark Fogelman, Deputy Public Defenders, San Francisco, for defendant and appellant.

Herbert F. Wilkinson, Deputy Atty. Gen., Robert H. Philibosian, Chief Asst. Atty Gen., William D. Stein, Asst. Atty. Gen., Robert R. Granucci, Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

CHRISTIAN, Associate Justice.

Jesse Duran appeals from a judgment of imprisonment after a jury found him guilty of murder in the second degree (Pen.Code, § 187).

Lydia Sheridan gave a large party at her house in San Jose. Appellant and his wife attended the party, and appellant played pool from about 6:00 to 9:00 p.m. During this period he had about five cups of beer.

During the evening appellant saw Michael Smith, the victim, fondling Mrs. Duran. Appellant grabbed Smith and told him to keep away from his wife. Later that night, appellant went outside and found that his wife had been thrown into a tub fully clothed. Smith was one of the persons responsible for throwing her in. Appellant went over and saw that Smith had grabbed Mrs. Duran's breasts from behind. He kicked Smith's hand away.

After this incident, appellant led his wife into the kitchen and told her to wait while he looked for some towels. When appellant returned with a towel, his wife was gone. After looking for about 20 to 25 minutes, appellant found his wife with Smith in front of a van in the Sheridan driveway. Smith had Mrs. Duran up against the van and had his hand underneath her blouse, attempting to remove her clothes. Appellant tried to grab Smith, but he ran away. After some recriminations appellant placed his wife in their car.

A few minutes later Smith, apparently drunk, walked up to appellant. Appellant asked Smith what he had been doing with Mrs. Duran. Smith did not respond directly to the question, suggesting instead that they talk about the matter. As the conversation continued, a shiny object was seen in appellant's right hand. Smith asked appellant, "Why do you have that knife?" Appellant told Smith not to worry about the knife as he could have stabbed Smith earlier at the party if that had been his intention; appellant continued to request an explanation for what had happened.

Appellant continued to ask what had happened with his wife and stated, "Tell me what happened or we are going to fight." Appellant added, "If we fight, one of us is going to die." After more angry words, appellant hit Smith in the face, knocking him against a parked car. Appellant then hit Smith two more times. Smith lunged at appellant, not making contact, and ran back toward the party.

Appellant ran after Smith; as the two ran toward the side of the Sheridan house, witnesses momentarily lost sight of them. Appellant and Smith went behind a van in the driveway; about 15 to 35 seconds later, appellant ran back to the street alone. As he ran past the witness, appellant said, "He was out of line, wasn't he?" The two witnesses saw the glare of an object appellant was holding in his hand. Appellant put the object in his pocket, went to his car, and drove away.

The witnesses ran to the back yard and found Smith lying on the ground bleeding from his chest.

Smith died of a deep stab wound to the heart.

I

Appellant was soon arrested and taken to the detective bureau of the San Jose Police Department. After the detectives asked appellant preliminary questions, Sergeant Demkowski read appellant a Miranda warning and the following conversation occurred:

"DEMKOWSKI: Having these rights in mind, do you want to talk to us about the activities last night?

"A: First of all, let me ask you a question. Am I charged with this homicide?

"Q: You're under arrest for homicide, yes.

"A: Well then I think it's better that I have an attorney here. But other than that, I'll give you my version of it, you know. Don't ask me no questions. All right? Is that okay?

"Q: You don't want us to ask you any questions?

"A: No.

"Q: Okay.

"A: I'll just tell you what, you know, what I did and, you know but I mean, or have you got an attorney right here present, close?

"Q: It will take quite a while to get one. But go ahead.

"A: You got a recording or anything, you want to record it?

"Q: It's being recorded.

"A: Huh?

"Q: It's being recorded.

"A: Oh, okay. Ah ... okay, this is yesterday, right?

"Q: Yeah.

"A: We decided to go to visit my sister-in-law, may wife's sister...."

Appellant argues that it was error for the trial court to deny a motion in limine (Evid.Code, § 402) to suppress the statements elicited in this interrogation. The Attorney General responds that the trial judge made findings that "One, the defendant was given his Miranda rights, and said that he understood them. Two, that the defendant never asked for an attorney. And three, that he wanted to and intended to tell his version of the event." He argues that these findings are dispositive of the Miranda issue. The trial court's findings are to be accepted by this court if not "palpably erroneous." (People v. Duren (1973) 9 Cal.3d 218, 238, 107 Cal.Rptr. 157, 507 P.2d 1365.) Here, as we shall explain, the trial court's determination that there was no Miranda violation was indeed palpably erroneous.

Appellant argues that he twice invoked his right to an attorney, thus triggering the "per se" rule that all interrogation must cease. (Michigan v. Mosley (1975) 423 U.S. 96, 109-110, 96 S.Ct. 321, 329-30, 46 L.Ed.2d 313 [White, J., concurring]; Fare v. Michael C. (1979) 442 U.S. 707, 719, 99 S.Ct. 2560, 2568-69, 61 L.Ed.2d 197.) He further argues that because following these invocations he never initiated without reservation a renewal of interrogation, statements obtained during the interrogation should have been excluded.

The first question is whether appellant invoked his right to an attorney. In People v. Randall (1970) 1 Cal.3d 948, 955, 83 Cal.Rptr. 658, 464 P.2d 114, the court stated: "[A] suspect may indicate that he wishes to invoke the privilege by means other than an express statement to that effect; no particular form of words or conduct is necessary.... [p] To strictly limit the manner in which a suspect may assert the privilege, or to demand that it be invoked with unmistakable clarity (resolving any ambiguity against the defendant) would subvert Miranda's prophylactic intent." The court held that, absent any evidence to the contrary, "a telephone call to an attorney must be construed to indicate that the suspect desires to invoke his Fifth Amendment privilege." (Id., at p. 958, 83 Cal.Rptr. 658, 464 P.2d 114.) Similarly, in People v. Superior Court (Zolnay) (1975) 15 Cal.3d 729, 125 Cal.Rptr. 798, 542 P.2d 1390 [cert. den. (1976) 429 U.S. 816, 97 S.Ct. 58, 50 L.Ed.2d 76], the words "Do you think we need an attorney?" or "I guess we need a lawyer" were held to indicate an invocation of the right to remain silent. (Id., 15 Cal.3d at pp. 735, 736, 125 Cal.Rptr. 798, 542 P.2d 1390.) In all, a suspect may invoke his right to silence by any words or conduct reasonably inconsistent with a present willingness to discuss his case freely and completely. (People v. Burton (1971) 6 Cal.3d 375, 382, 99 Cal.Rptr. 1, 491 P.2d 793; see also People v. Parker (1975) 45 Cal.App.3d 24, 119 Cal.Rptr. 49.)

Under this standard appellant did invoke his Miranda rights. Assuming that appellant's first statement that "it's better that I have an attorney here" did not constitute an invocation, appellant's question "Have you got an attorney right here present, close?" must be so construed. Further, appellant made two statements indicating a present unwillingness to freely talk without first meeting with an attorney. Ambiguous statements are to be construed as invocations. "A principal objective of [the Miranda ] decision was to establish safeguards that would liberate courts insofar as possible from the difficult and troublesome necessity of adjudicating in each case whether coercive influences ... had been employed to secure admissions or confessions." (People v. Ireland (1969) 70 Cal.2d 522, 535, 75 Cal.Rptr. 188, 450 P.2d 580.) If courts were to construe ambiguous references to attorneys as something other than invocations of a suspect's right to remain silent, experienced criminals would get attorneys and not incriminate themselves, while less experienced offenders would be "trapped" by failing to use the precise words of invocation. (See People v. Randall, supra, 1 Cal.3d 948, 955, 83 Cal.Rptr. 658, 464 P.2d 114.) Because appellant invoked his right to have an attorney present all questioning should have ceased. (Miranda v. Arizona (1966) 384 U.S. 436, 474, 86 S.Ct. 1602, 1627-28, 16 L.Ed.2d 694.) There was no later waiver of Miranda rights by appellant. (See Edwards v. Arizona (1981) 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 [reh. den. 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984].)

Appellant told the detective that he was not involved in any fight and that the only scuffle he had was with his wife. At trial he testified (on direct examination) that he and Smith had a fight during which he hit Smith three times; appellant even admitted killing Smith. Appellant's statements to the police, though exculpatory, were inconsistent with his trial testimony and thus constituted admissions; they were used to impeach him. In Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, the United States Supreme Court held that under the United States Constitution, statements taken in violation of Miranda requirements, though unusable by the prosecution in its own case, are admissible to impeach statements made by the defendant in the...