People v. Gilbert

MOSK, J.

I concur in affirming the judgments as to Gilbert and I concur in the reversal of count II as to both defendants under compulsion of People v. Washington (1965) 62 Cal.2d 777 [ 44 Cal.Rptr. 442 , 402 P.2d 130 ], I *713 dissent, however, from the reversal of the other judgments as to Kang.

On the ladder of culpability, King was undeniably several rungs below his codefendant Gilbert. This factor was considered by the jury in sparing his life while returning a verdict of death for Gilbert. However, neither a distinction between the extent of involvement of the two defendants nor the facts of this case justify reversing King’s conviction.

Viewed in the light most favorable to the People, as it must be (People v. Sweeney (1960) 55 Cal.2d 27, 33 [ 9 Cal.Rptr. 793 , 357 P.2d 1049 ]), the evidence does not support the view of the majority that the incriminating statements of King were obtained when “the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements” (Escobedo v. Illinois (1964) 378 U.S. 478 [ 84 S.Ct. 1758 , 12 L.Ed.2d 977 ]; People v. Dorado (1965) 62 Cal.2d 338, 353 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ]).

The prosecution attempted to introduce into evidence statements made by both defendants. After extensive voir dire examination outside the presence of the jury, the trial judge thoughtfully reviewed the facts and the relevant law on confessions. Gilbert’s extrajudicial statements were excluded. As to King, however, the court made a specific oral finding: “I think the record is straight. The Court has heard the evidence in this case and is of the opinion that this defendant did not request counsel; that he had no desire to have counsel at the time. That the first time that he knew that he became suspect in this case it was his desire to make a complete confession of his involvement in this offense, on his own volition, and that whatever statement he made, from evidence I heard, was completely voluntary on his part. . . . I am not yet prepared to say that a defendant that wants to ‘spill his guts,’ if I may use that term, and make a complete confession of a crime, that he cannot be permitted to do so unless whoever is questioning him goes out and gets him a lawyer.”

Under well-settled rules of law, we are bound by the determination of the trial judge on questions of fact. The trial court found not merely that King did not ask for counsel, but that Tie had no desire to have counsel at the time of his confession. The evidence amply supports that conclusion.

The majority opinion refers to “a period of prolonged interrogation” after arrest and during the accusatory stage *714 as defined in Dorado . That description is superficially accurate, but it overlooks the significant backdrop to this drama.

The tragic crime involved here was committed on January 3, 1964. From January 5 on, King knew that he was a suspect, and indeed he had been interviewed by the police three times. He had more than a month in which to obtain advice of counsel if he had so desired and having suffered two prior convictions of a felony, he could not have been unaware of the need for and the right to legal representation. Instead, however, he brooded about making a clean breast of his involvement, and in fact on one occasion he started for the police station with that in mind but lost his nerve en route. This background makes completely comprehensible his subsequent conduct when, on February 11, he was brought from San Gabriel, where he was in custody on another matter, to the Alhambra police department, where he was placed under arrest on these charges and a process of booking began. During that process King asked Officer Ted Bennett what charges he faced, and the officer responded that he was being booked for two counts of murder, one count of robbery, and one count of kidnaping. Thereupon King became voluble and freely discussed his participation in the events involved herein. Officer Bennett did not undertake a process of interrogation, but on the contrary tried to discourage King from talking and instructed him to wait until later, for his conversation was interrupting the booking procedure. Nevertheless, King persisted and continued to discuss the case. The dialogue related in the footnote summarizes the event. 1

*715 The majority emphasizes that the statements introduced in evidence were not those made by King during the booking process but were those elicited during the subsequent period in the interrogation room. I do not consider this to be a significant distinction, for during this entire period King sought to relate his story and, indeed, could not be deterred from doing so. It is understandable that King would choose to volunteer statements regarding his participation in the crimes, since it was his purpose to cast the blame entirely on his codefendant Gilbert. 2 He undoubtedly considered it to his advantage to relate his version of events before his co-defendant talked. That he was so inclined is indicated not only by his conduct during the booking procedure but by his earlier start for the police station to confess, frustrated only by his loss of nerve. He stated several times that he could not sleep because he was troubled by his conscience, that he “wanted to see this guy [Gilbert] busted as much as you.”

After several hours in the interrogation room, during which King related his version of events, he was asked to prepare a statement and sign it. He recited his story voluntarily and without interruption or interrogation. In fact, one witness described him as being as resolute as if he were dictating a novel. 3

The first time the evidence suggests any reluctance by King to continue his volunteered narration was his declination to sign the dictated statement. He then added an *716 appendage reading as follows: “I make this statement freely .of my own will, however not being familiar with the laws I do not feel that I should sign this confession or make any tape recordings of the same until I have been advised to do so or not by an attorney. The officers involved did inform me prior to making this statement that it could and possibly would be used in court against me. ’ ’

At the trial, King asserted he had expressed a desire to phone his girl friend to request her to obtain counsel for him. But on cross-examination he admitted that she would have been unavailable during working hours. Furthermore, King admitted to a witness outside the courtroom during preliminary proceedings that he had not asked for a phone call to contact an attorney, but had read of a recent Supreme Court decision in the newspaper about asking for an attorney, and “you can’t blame a guy for trying.” In any event, we are bound by the factual determination of the trial court that he neither sought nor desired counsel during this period.

The majority, by reversing King’s conviction merely because Dorado ritual was not recited, apply a parochial approach to a relatively uncomplicated factual situation. The police officers could not have given legal advice to King before he blurted out his incriminating statements at the booking office; it is evident that efforts to deter his narration were unavailing. And it is wholly unrealistic, as well as futile, to require the police to advise a suspect of his right to counsel after he, of his own volition and without urging or prompting, takes the initiative to confess. It appears to be of little consequence that in the instant case King’s unsolicited confession began during the booking process and continued in an interrogation room. The total circumstances are not as neatly divisible as the majority opinion chooses to make them. People v. Jacobson (1965) ante, p. 319 [ 46 Cal.Rptr. 515 , 405 P.2d 555 ], and People v. Cotter (1965) ante, p. 386 [ 46 Cal.Rptr. 622 , 405 P.2d 862 ], two cases involving multiple confessions cited by the majority, are inapposite. In both cases the defendants confessed several times during the investigatory stage, later were brought to the police station where they were interrogated and again confessed. The earlier and later events were clearly distinct as to time, location and circumstances. Here, King’s incriminatory statement resulted from one continuous process, all of it the product of his contrite frame of mind. The record is utterly devoid of evidence suggesting he was imposed upon, coerced, persuaded or in *717 duced to relate Ms criminal experience in any manner other than Ms uninhibited inclination dictated.

The evidence, including King’s statement, amply supports Ms conviction. Therefore, except as to count II, I would affirm the King judgments.

McComb, J., concurred.

The petition of appellant Gilbert for a rehearing was denied February 9, 1966.

On voir dire examination at the trial, Officer Bennett made it abundantly clear that King’s statements were voluntary and entirely unsolicited. In response to questions from the court, the officer testified as follows:

“The Court: You first took him to the booking officer that has charge of the booking, did you?

“The Witness: Yes, sir.

“The Court: With reference to your taking him there, when did he start to talk about this ease?

“The Witness: As he was taken to the booking window, he asked what the charges were. I related the charges, and at that time he started relating Ms participation in it.

“The Court: Did you make some statement to him at that time about continuing with telling you about it until a later time or what?

“The Witness: I asked him on several occasions, sir, not to relate it at that time, to wait until after he was booked, but he continued on.

“The Court: Now, were you there during the process of the booking?

“The Witness: Yes, sir.

“The Court: And during all the time that he was being—the in *715 formation was being taken by the booking officer, was he making statements with reference to this case?

“The Witness; Yes, sir, he was.

"The Court-. And this started as soon as you told him what he was going to be charged with, is that right?

"The Witness: Yes.

"The Court: All right. Did he continue making this statement during the booking process?

"The Witness: All through the process, sir.”

The eagerness of King to talk was deemed significant by his own counsel, who stressed it in closing argument to the jury: "You can also take into consideration the fact that after Mr. King’s arrest he did try in all ways that he could to assist the Alhambra police. Now, maybe this assistance came late; maybe Mr. King was interested in self-preservation and wanted to keep from being tied into these particular offenses. But then he did cooperate, and I think that cooperation with the police indicates the possibility of rehabilitation as far as Mr. King is concerned."

The following colloquy was from the testimony of the witness Luciano:

"Q. There were no instructions at all during this dictated statement?

"A. No interruptions whatsoever. He sat down and dictated like he was writing a novel."