People v. Dorado

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 *365 by petitioner, that ‘every state denial of a request to contact counsel [is] an infringement on the constitutional right without regard to the circumstances of the case, ’ Id., at 440. (Emphasis in original.) . . . The Court, applying 1 these principles’ to ‘the sum total of the circumstances [there] during the time petitioner was without counsel, ’ id., at 440, concluded that he had not been fundamentally prejudiced by the denial of his request for counsel. Among the critical circumstances which distinguish that case [Crooker] from this one [Escobedo] are that the petitioner there, but not here, was explicitly advised by the police of his constitutional right to remain silent and not to ‘say anything’ in response to the questions, id., at 437, and that petitioner there, but not here, was a well-educated man who had studied criminal law while attending law school for a year.” In this reference to Crooker the Supreme Court again stresses that each case must be weighed in relation to the totality of its own circumstances. Crooker was distinguished from Escobedo , in part, because Danny Escobedo was “a 22-year old of Mexican extraction with no record of previous experience with the police,” Escobedo, at page 482, whereas Crooker, as noted, was a well-educated man who had knowledge of criminal law.

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 *366 but holds that the failure of the accused to request counsel does not justify “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” and, further, that “The right to counsel matures at this critical accusatory stage; the right does not originate in the accused’s assertion of it. The accused’s request for counsel indicates no more than that he, himself, at that point in the proceedings, perceived the need of legal assistance. The request merely constitutes evidence that the accused finds himself in an accusatory predicament.”

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 *367 him at that time of his right to counsel and of his right to remain silent?

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% 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 *368 favorable to the defendant would have been reached had the error not been committed. In applying this constitutional test I firmly believe that no reversal is justified, that the verdict of the jury should be upheld and the judgment of the trial court affirmed.

For these reasons I dissent.

Schauer, J., * concurred.

Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.