# People v. Andrews > California Court of Appeal · April 29, 1965 · 234 Cal. App. 2d 69 URL: https://www.frixlaw.com/law-library/cases/9735935 ## Case - **Full name:** The PEOPLE, Plaintiff and Respondent, v. CHARLES ALLEN ANDREWS, Defendant and Appellant - **Court:** California Court of Appeal - **Decided:** April 29, 1965 - **Citations:** 234 Cal. App. 2d 69; 44 Cal. Rptr. 94; 1965 Cal. App. LEXIS 995 - **Precedential status:** Published - **Opinion:** Dissent by Pierce - **Judges:** Sparks, Pierce - **Cited by:** 33 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9735935 ## Opinion text PIERCE, P. J. I dissent. The majority opinion consti- tutes an additional extension of the application of the rule of People v. Dorado, 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ], neither required by that decision nor by People v. Stewart (Mar. 25, 1965) 62 Cal.2d 571 [ 43 Cal.Rptr. 201 , 400 P.2d 97 ]), nor by any principle of constitutional law. And, as I see it, it is directly contrary to well-settled rules of criminal appeals. People v. Stewart, supra (p. 576) holds that where the record affirmatively shows (1) the investigation has begun to focus on the defendant, and (2) he is in custody, and (3) “the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements,” Then (4) if the authorities have not effectively informed defendant of his right to counsel or of his right to remain silent, the prosecution must affirmatively establish that defendant had waived these rights. The majority opinion here adds another obligation of affirmative proof to burden the prosecution. It holds that in any case in which an incriminating statement has been given it must be reversed where (1) the investigation has focused on defendant, and (2) he is in custody, unless the prosecution also shows (3) that the statement was Not the process of *87 “interrogations that lent itself to eliciting incriminating statements.' ’ The majority has evolved a neAV theory of res ipsa loquitur. Effectually, it says: a confession by a suspected defendant in custody frequently happens after the police have conducted a process of interrogations lending itself to eliciting incriminating statements. Therefore, if a confession is given, the law will infer it was obtained through such an interrogation. The syllogism applied is this: (1) a defendant was a prime suspect; (2) he was in custody; (3) he confessed; (4) confessions commonly happen after interrogations seeking to elicit them: therefore, (5) this confession was so obtained. This is false logic. I think it is also bad law. In this record there is not a line of testimony that the statements were made during, or as a result of, an interrogation lending itself to eliciting incriminating statements. The majority opinion says that we must infer this from the fact that the first statement about which there is any testimony was made in an interrogation room and that defendant Avas asked why he had set the fires and gave his reason therefor, and because the second was tape recorded. Why must we assume that; why are we permitted to assume that? If any inference is to be drawn, I would draw the inference that defendant was being questioned because he had already gone to the police and had told them he had set at least some of the fires. I make this statement advisedly. The case was first tried solely on the eAddenee at the preliminary hearing, and the trial court dismissed the information upon the ground that the corpus delicti had not been proved. We reversed this ruling on appeal. (People v. Andrews, 222 Cal.App.2d 242 [ 34 Cal.Rptr. 118 ].) As the opinion in that case shows there was proof that the fires were of incendiary origin and such proof established the corpus delicti. But no proof whatever connected the defendant Andrews with the setting of the fires, except his confessions. Nor is there any such evidence in this record. Because of the prosecution’s difficulty in establishing the corpus delicti it is ineoneeiArable that any facts connecting defendant with the setting of the fires would have been omitted, had there been such evidence available. How then did the police happen to arrest defendant unless at some stage of the investigation he had voluntarily gone to the police and accused himself? A compulsion to tell, it seems, is not an uncommon characteristic of the arsonist. If such was the origin of interrogation, I do not think the *88 narrative account which appears in this record could possibly be deemed the product of an interrogation lending itself to eliciting incriminating statements as that phrase was intended in Dorado and Stewart . Naturally, if the police have been told by a person that he has committed a crime, they will seek the details and the reasons. They will not refuse to listen until the confessor obtains an attorney or waives his right to one. Nor are they required to. Such interrogation seems clearly outside the scope of Dorado . The majority opinion says we may not “indulge in speculation” on the possibility that the incriminating statements which appear in this record had a voluntary origin. But the majority themselves speculate that they did not—although they call their process of reasoning drawing “an inference.” As a reviewing court we do not have the right to draw inferences to reverse a judgment. The prosecution did not have the burden to prove that defendant’s statements were not the result of an interrogation designed to elicit a confession. On the contrary, the burden is on appellant to prove that it was. “A judgment ... of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.” (3 Witkin, Cal. Procedure (1954) Appeal, §79, p. 2238.) “. . . The presumption being in favor of the judgment, the appellate court must consider the evidence in the light most favorable to the prevailing party, giving him the benefit of every reasonable inference, and resolving conflicts in support of the judgment.” (3 Witkin, Cal. Procedure, Appeal, § 84, p. 2245.) This rule obtains in criminal as well as civil appeals. (Witkin, Cal. Criminal Procedure, Appeal, § 683, p. 666.) This, of course, is elementary. People v. Stewart, supra, does not assert a different rule. As stated above it sets up four conditions, all of which must concur before Dorado applies. The only condition which the prosecution is required to prove affirmatively is the waiver by a defendant of his right to remain silent and to have an attorney. The reason stated in the opinion for that is that he who relies upon a waiver always has the burden of proving it. It does not assert that the prosecution must show affirmatively either (1) that the investigation has not begun to focus upon defendant, or (2) that he was not in custody, or (3) that the confession was not obtained as the result of an interrogation designed to elicit incriminating statements. *89 As regards the third contention, the opinion in Stewart says (on p. 578) : “. . . Although in most cases the process of interrogations following an arrest will . . . lend itself [to eliciting incriminating statements], it does not necessarily do so.” The court then states (on p. 579) : “The test which we have described does not propose a determination of the actual intent or subjective purpose of the police in undertaking the interrogations but a determination based upon the objective evidence. [W]e must . . . analyze the total situation which envelops the questioning by considering such factors as the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police and all other relevant circumstances. ’ ’ None of these factors (except place) are before us in this case. The record is silent as to all other factors. The majority opinion has “inferred” that they exist. They have thus required the prosecution to prove the negative of a test which concludes such a will-o-the-wisp as “all other relevant circumstances. ’ ’ Supplementing what has been said by Justice Tobriner in People v. Stewart, supra, about the “silent record” is the discussion of Justice Stone in his dissenting opinion in People v. Campbell, 233 Cal.App.2d 38, 50-51 [ 43 Cal.Rptr. 237 ], He points out Dorado has simply added to the “foundational proof” which California courts have long required preliminary to the introduction of a confession (viz: that the confession was freely and voluntarily made, without coercion, threats, or undue pressure, and without promises of reward, immunity from punishment, or leniency.) But the foundational proof which Dorado requires does not include affirmative proof that when a confession was given (1) suspicion had not focused upon defendant, or (2) that he was not in custody—at least no court has yet said that it does. And in my opinion it is no more sensible to require foundational proof that a confession offered was (3) not made during or after a process of interrogation designed to produce a confession than it would be to require foundational proof negating the other conditions. Under the rule that error will not be presumed, I would hold that where the record shows that a confession is free and voluntary, without coercion, threats, undue pressure, promises of reward or immunity, etc., and the record is silent on the matter of any one of the three conditions precedent, *90 all of which must concur before the Dorado rule is applicable, a reviewing court must affirm. Moreover, if this is not to be the rule to be applied hereafter : if from now on the prosecution must assume the burden of disproving all factors which could make an extrajudicial incriminating statement inadmissible, I would not apply the rule retroactively. In re Lopez, 62 Cal.2d 368 [ 42 Cal.Rptr. 188 , 398 P.2d 380 ], Justice Tobriner, author of the majority opinion, observed (on p. 375) that “the new rule [of Escobedo] need not reach back to eradicate an environment entombed in the past;” and he said (on p. 379) “a newly defined constitutional right which involves the correction of future practices rather than erroneous convictions of the past should not be subject to rigid retroactivity.” Those statements were made with reference to a collateral attack upon a final judgment. To me they have just as much relevancy to a silent record—silent because the rule was nonexistent when the case was tried. These crimes were committed nearly two and a half years ago. It is only the unfortuitous (or fortuitous depending upon the point of view) circumstance of a former appeal that the judgment was not final long ago. There is not the slightest doubt as to the defendant’s guilt. His confessions were explicit: they were uncoerced. There is no proof they were solicited. It is just as unreasonable to send this stale case back, placing the burden on the prosecution to prove how and why the confessions were obtained, as it would have been in Lopez . I would affirm the judgment. Respondent’s petition for a hearing by the Supreme Court was denied June 23, 1965. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9735935. Public record. Not legal advice.