Petition — California v. Level

United States ———

October Term, 1980

No.

STATE OF CALIFORNIA,

Petitioner,

v.

WILLIE EDWARD LEVEL,

| 7 Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

GEORGE DEUKMEJIAN, Attorney General

of the State of California

ROBERT H. PHILIBOSIAN, Chief Assistant

Attorney — Criminal Division

S. CLARK MOORE,

Assistant Attorney General

NORMAN H. SOKOLOW,

Deputy Attorney General

HOWARD J. SCHWAB,

Deputy Attorney General

3580 Wilshire Boulevard

Los Angeles, California 90010

Telephone: (213) 736-2212

Attorneys for Petitioner

Westside Law Publishers Santa Monica, California (213) 450-1965

TOPICAL INDEX

Page

Ce eee ere s. 2

a ORTRNLOe PMNSA Te eh nh 2

oD ER ere 2

Constitutional And Statutory Provisions Involved __. 3

ment CE Tee Cee F....8 ae 13

Reasons Why A Writ Of Certiorari

Should Be Granted

Whenever An Adult Requests To Have His Mother

Present Before Making A Statement To The Police,

After Waiving His Constitutional Rights, There Is

No Invocation Of Any Right To Remain Silent 26

Conclusion eee 37

PI TE... over... ee ee 39

TI Oooo ss eee ee 78

Pe at li elk ae

Appendix D

ii

TABLE OF AUTHORITIES

Cases Page

Fare v. Michael C. (1979) 442 U.S. 707... 29, 35

In re Michael C., Number 11, April 17, 1980

California Advance Sheets, Minutes of the

California Supreme Court, p. 11 (Crim. 19921,

I osc sscsccscaacnvens. 29, 30, 31, 32,

NOS a rr 32, Oe oo Om oF

Michigan v. Mosley (1975) 423 U.S. 96... 36

Miranda v. Arizona (1966) 384 U.S. 436... 2, 26, 29,

TE ogee eke cess 30, 33, 35, 36, 37

North Carolina v. Butler(1979) 441 U.S. 369. 33, 36

Oregon v. Hass (1975) 420 U.S. 714.000... 36

People v. Alfieri, 95 Cal. App.3d 533... 29

People v. Burton, 6 Cal.3d 375. 29, 30, 35

People v. Level, 103 Cal. App.3d 899 . ae tow

gl io 16, 26, 27, 28, 30, 32, 34, 35, 36

People v. Marshall, 41 Cal. App.3d 129... 35

People v. Parker, 45 Cal. App.3d 24... 35

People v. Pettingill, 21 Cal.3d 231... 36

People v. Randall, 1 Cal.3d948 35

People v. Superior Court (Keithley), 13 Cal.3d406. 35

United States v. Healy (1974) 376 U.S. 75... si«“awsa 2

Statutes

California Civil Code

OS sescecnccuvecccsesccaceccecsccceves 11, 30

MN oe cou ckccaccccceccccceccccecencccececscevese 11, 30

California Penal Code

i ee 3

Welfare & Institutions Code

i cccascacccveccccscescccessecevasceace. 12, 30

28 U.S.C.

In the Supreme Court of the

United States

October Term, 1980

No.

STATE OF CALIFORNIA,

Petitioner,

v,

WILLIE EDWARD LEVEL,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

Petitioner, State of California, respectfully prays that a

writ of certiorari be issued to review the judgment and

opinion of the Court of Appeal of the State of California

reversing the judgment of guilt of second degree murder

entered on February 28, 1980, with one of the three

Justices (Hanson, J.) voting to affirm the judgment of

conviction. A petition for rehearing was denied on March

26, 1980, with a short opinion, with one Justice voting to

grant said petition for rehearing. A petition for hearing in

the Supreme Court of the State of California was denied

on April 30, 1980. Qn May 13, 1980, the California

Court of Appeal granted a stay herein pending the timely

filing of and disposition of a petition for writ of certiorari.

OPINIONS BELOW

The opinion of the California Court of Appeal reversing

the judgment of second degree murder in People v. Level,

103 Cal. App.3d 899, 162 Cal. Rptr. 682 (1980), appears

as appendix A of this petition. A copy of the opinion on the

denial of the petition for rehearing by the California Court

of Appeal appears as appendix B of this petition. (People

v. Level, 103 Cal. App.3d 899, 925-928, Cal.

Rptr. , (1980).) A copy of the California

Supreme Court’s order denying the petition for hearing

appears as appendix C of this petition. A copy of the Stay

granted May 13, 1980, by the California Court of Appeal

pending the timely filing and disposition of the petition for

writ of certiorari appears as appendix D of this petition.

JURISDICTION

The judgment of the California Court of Appeal was

filed on February 28, 1980. A timely petition for rehear-

ing was denied by the Court of Appeal on March 26, 1980.

A timely petition for hearing was denied by the California

Supreme Court on April 30, 1980. This petition for writ of

certiorari was filed within 90 days of that date and

therefore timely filed. (United States v. Healy (1974) 376

U.S. 75, 77-80, and cases cited.) This Court’s jurisdiction

is invoked under 28 U.S.C. § 1257(3).

QUESTION PRESENTED

Whether there is an invocation of the right to remain

silent, if an adult, after being warned of and waiving his

constitutional rights pursuant to Miranda v. Arizona

(1966) 384 U.S. 436, requests to have his mother present

before speaking to the authorities?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Twenty-Sixth Amendment to the United States

Constitution reads:

“Section 1. The right of citizens of the United

States, who are eighteen years of age or older, to

vote shall not be denied or abridged by the

United States or by any State on account of age.

“Sec. 2. The Congress shall have power to

enforce this article by appropriate legislation.”

Section 1538.5 of the California Penal Code reads:

**§ 1538.5 Motion to return property or sup-

press evidence

(a) Grounds

“‘(a) A defendant may move for the return of

property or to suppress as evidence any tangible

or intangible thing obtained as a result of a

search or seizure on either of the following

grounds:

(1) The search or seizure without a warrant

was unreasonable.

(2) The search or seizure with a warrant

was unreasonable because (i) the warrant is

insufficient on its face; (ii) the property or

evidence obtained is not that described in the

warrant; (iii) there was not probable cause for

the issuance of the warrant; (iv) the method of

execution of the warrant violated federal or state

constitutional standards; * * * (v) there was

any other violation of federal or state constitu-

tional standards.

*““(b) First hearing

**(b) When consistent with the procedures set

forth in this section and subject to the provisions

of Section 170 through 170.6 of the Code of

Civil Procedure, the motion should first be heard

by the magistrate who issued the seaich warrant

if there is a warrant.

“(c) Evidence

‘““(c) Whenever a search or seizure motion is

made in the municipal, justice or superior court

as provided in this section, the judge or magis-

trate shall receive evidence on any issue of fact

necessary to determine the motion.

“(d) Effect of granting motion

‘*(d) If a search or seizure motion is granted

pursuant to the proceedings authorized by this

section, the property or evidence shall not be

admissible against the movant at any trial or

other hearing unless further proceedings author-

ized by this section or Section 1238 or Section

1466 are utilized by the people.

““(c) Return of property

“*(c) Ifasearch or seizure motion is granted at

a trial, the property shall be returned upon order

of the court unless it is otherwise subject to

lawful detention. If the motion is granted at a

special hearing, the property shall be returned

upon order of the court only if, after the conclu-

sion of any further proceedings authorized by

this section or Section 1238 or Section 1466, the

property is not subject to lawful detention or if

the time for initiating such proceedings has

expired, whichever occurs last. If the motion is

granted at a preliminary hearing, the property

Shall be returned upon order of court after 10

days unless the property is otherwise subject to

lawful detention or unless, within that time,

further proceedings authorized by this section or

Section 1238 are utilized; if they are utilized, the

property shall be returned only if, after the

conclusion of such proceedings, the property is

no longer subject to lawful detention.

‘“(f) Felony; motion at preliminary hearing

“(f) If the property or evidence relates to a

felony offense initiated by a complaint, the

motion may be made in the municipal or justice

court at the preliminary hearing.

‘‘(g) Misdemeanor; pre-trial motion at spe-

cial hearing

“*(g) If the property or evidence relates to a

misdemeanor complaint, the motion shall be

made in the municipal or justice court before

trial and heard prior to trial at a special hearing

relating to the validity of the search or seizure. If

the property or evidence relates to a misde-

meanor filed together with a felony, the proce-

dure provided for a felony in this section and

Sections 1238 and 1539 shall be applicable.

*““(h) Motion at trial

““(h) If, prior to the trial of a felony or

misdemeanor, opportunity for this motion did

not exist or the defendant was not aware of the

grounds for the motion, the defendant shall have

the right to make this motion during the course of

trial in the municipal, justice or superior court.

(i) Felony; renewal of motion at special hear-

ing; review

““(i) If the property or evidence obtained

relates to a felony offense initiated by complaint

and the defendant was held to answer at the

preliminary hearing, or if the property or evi-

dence relates to a felony offense initiated by

indictment, the defendant shall have the right to

renew or make the motion in ihe superior court at

a special hearing relating to the validity of the

search or seizure which shall be heard prior to

trial and at least 10 days after notice to the

people unless the people are willing to waive a

portion of this time. The defendant shall have the

right to litigate the validity of a search or seizure

de novo on the basis of the evidence presented at

a special hearing. After the special hearing is

held in the superior court, any review thereafter

desired by the defendant prior to trial shall be by

means of an extraordinary writ of mandate or

prohibition filed within 30 days after the denial

of his motion at the special hearing.

“(j) Relitigation of question after grant of

motion; new evidence, review

““(j) If the property or evidence relates to a

felony offense initiated by complaint and the

defendant’s motion for the return of the property

or suppression of the evidence at the preliminary

hearing is granted, and if the defendant is not

held to answer at the preliminary hearing, the

people may file a new complaint or seek an

indictment after the preliminary hearing, and the

ruling at the prior hearing shall not be binding in

any subsequent proceeding. If the property or

evidence relates to a felony offense initiated by

complaint and the defendant’s motion for the

return or suppression of the property or evidence

at the preliminary hearing is granted, and if the

defendant is held to answer at the preliminary

hearing, the ruling at the preliminary hearing

shall be binding upon the people unless, upon

notice to the defendant and the court in which the

preliminary hearing was held and upon the filirg

of an informaton, the people within * * * /5

days after the preliminary hearing request in the

superior court a special hearing, in which case

the validity of the search or seizure shall be

relitigated de novo on the basis of the evidence

presented at the special hearing, and the defend-

ant shall be entitled, as a matter of right, to a

continuance of the special hearing for a period of

time up to 30 days. If defendant’s motion is

granted at a special hearing in the superior court,

the people, if they have additional evidence

relating to the motion and not presented at the

special hearing, shall have the right to show good

cause at the trial why such evidence was not

presented at the special hearing and why the

prior ruling at the special hearing should not be

binding, or the people may seek appellate review

as provided in subdivision (0), unless the court

prior to the time such review is sought has

dismissed the case pursuant to Section 1385. If

the property or evidence seized relates solely to

a misdemeanor complaint, and the defendant

made a motion for the return of property or the

suppression of evidence in the municipal court

or justice court prior to trial, both the people and

defendant shall have the right to appeal any

decision of that court relating to that motion to

the superior court of the county in which such

inferior court is located, in accordance with the

California Rules of Court provisions governing

appeals from municipal and justice courts in

criminal cases. If the people prosecute review by

appeal or writ to decision, or any review thereof,

in a felony or misdemeanor case, it shall be

binding upon them.

“(k) Release of defendant pending resump-

tion of proceedings in trial court

“(k) Ifthe defendant’s motion to return prop-

erty or suppress evidence is granted and the case

is dismissed pursuant to Section 1385, or the

people appeal in a misdemeanor case pursuant

to subdivision (j), the defendant shall be released

pursuant to Section 1318 if he is in custody and

not returned to custody unless the proceedings

are resumed in the trial court and he is lawfully

ordered by the court to be returned to custody.

“If the defendant’s motion to return property

or suppress evidence is granted and the people

file a petition for writ of mandate or prohibition

pursuant to subdivision (0) or a notice of inten-

tion to file such a petition, the defendant shall be

released pursuant to Section 1318 unless(1) he

is charged with a capital offense in a case where

the proof is evident and the presumption great,

or (2) he is charged with a noncapital offense

defined in Chapter 1 (commencing with Section

187) of Title 8 of Part 1 and the court orders that

the defendant be discharged from actual custody

upon bail.

(1) Stay; time for trial; dismissal; continu-

ance; bail or release

““(1) If the defendant’s motion to return prop-

erty or suppress evidence is granted, the trial of a

criminal case shall be stayed to a specific date

pending the termination in the appellate courts

of this state of the proceedings provided for in

this section, Section 1238, or Section 1466 and,

except upon stipulation of the parties, pending

the time for the initiation of such proceedings.

Upon the termination of such proceedings, the

defendant shall be brought to trial as provided by

Section 1382, and subject to the provisions of

Section 1382, whenever the people have sought

and been denied appellate review pursuant to

subdivision (0), the defendant shall be entitled to

have the action dismissed if he is not brought to

trial within 30 days of the date of the order which

is the last denial of the petition. Nothing con-

tained in this subdivision shall prohibit a court,

at the same time as it rules upon the search and

seizure motion, from dismissing a case pursuant

to Section 1385 when such dismissal is upon the

court’s own motion and is based upon an order at

the special hearing granting defendant’s motion

to return property or suppress evidence. In a

misdemeanor case, tiie defendant shall be enti-

tled to a continuance of up to 30 days if he

intends to file a motion to return property or

suppress evidence and needs this time to prepare

for the special hearing on the motion. In case of

an appeal by the defendant in a misdemeanor

case from the denial of such motion, he shall be

entitled to bail as a matter of right, and, in the

10

discretion of the trial or appellate court, may be

released on his own recognizance pursuant to

Section 1318.4.

*““(m) Exclusive pre-trial remedy; review on

appeal after conviction

‘“(m) The proceedings provided for in this

section, Section 995, Section 1238, and Section

1466 shall constitute the sole and exclusive

remedies prior to conviction to test the unrea-

sonableness of a search or seizure where the

person making the motion for the return of

property or the suppression of evidence is a

defendant in a criminal case and the property or

thing has been offerred [sic] or will be offered as

evidence against him. A defendant may seek

further review of the validity of a search or

seizure on appeal from a conviction in a criminal

case notwithstanding the fact that such judgment

of conviction is predicated upon a plea of guilty.

Such review on appeal may be obtained by the

defendant providing that at some stage of the

proceedings prior to conviction he has moved for

the return of property or the suppression of the

evidence.

‘“‘(n) Motion on other grounds; existing law

and procedure

‘“‘(n) Nothing contained in this section shall

prohibit a person from making a motion, other-

wise permitted by law, to return property,

brought on the ground that the property obtained

is protected by the free speech and press provi-

sions of the Federal and State Constitutions.

Nothing in this section shall be construed as

altering (i) the law of standing to raise the issue

of an unreasonable search or seizure; (ii) the

law relating to the status of the person conduct-

ing the search or seizure; (iii) the law relating to

the burden of proof regarding the search or

seizure; (iv) the law relating to the reasonable-

ness of a search or seizure regardless of any

warrant which may have been utilized; or (v)

the procedure and law relating to a motion made

pursuant to Section 995 or the procedures which

may be initiated after the granting or denial of

such a motion.

‘“‘(o) People’s petition for mandate or prohi-

bition; notice of intention

“(o) Within 30 days after a defendant’s mo-

tion is granted at a special hearing in the superior

court, the people may file a petition for writ of

mandate or prohibition, seeking appellate re-

view of the ruling regarding the search or seizure

motion. If the trial of a criminai case is set for a

date which is less than 30 days from the granting

of a defendant’s motion at a special hearing in

the superior court, the people, if they have not

filed such a petition and wish to preserve their

right to file such a petition, shall file in the

superior court on or before the trial date or

within 10 days after the special hearing,'which-

ever occurs last, a notice of intention to file such

a petition and shall serve a copy of the notice

upon the defendant.’’ (Emphasis in original.)

California Civil Code section 25 reads:

“*Minors are all persons under* * * /8 years

of age.”” (Emphasis in original.)

California Civil Code section 25.1 reads:

12

“The Legislature intends that any use of or

reference to the words ‘age of majority,’ ‘age of

minority,’ ‘adult,’ ‘minor,’ or words of similar

intent in any instruction, order, transfer, or

governmental communication whatsoever made

in this state:

“‘(a) Before March 4, 1972, shall make refer-

ence to persons 21 years of age and older, or

younger than 21 years of age, and

*“(b) On or after March 4, 1972, shall make

reference to persons 18 years of age and older, or

younger than 18 years of age.

“Nothing contained herein or in Chapter

1748 of the Statutes of 1971 shall prevent the

amendment of any court order, will, trust,

contract, transfer, or instrument to refer to the

new 18-year-old age of majority where such

court order, will, trust, contract, transfer, or

instrument is:

(1) In existence on March 4, 1972; and

(2) Subject to amendment by law and where

amendment is allowable or not prohibited by the

terms thereof; and

(3) Otherwise subject to the laws of this

state.”

California Welfare and Institutions Code section

reads:

**Any person who is under the age of 18 years

when he violates any law of this state or of the

United States or any ordinance of any city or

county of this state defining crime * * * other

than an ordinance establishing a curfew based

602

13

solely on age, is within the jurisdiction of the

juvenile court, which may adjudge such person

to be a ward of the court.’ (Emphasis in

original. )

STATEMENT OF THE CASE

Petitioner hereby adop.s the Statement of Facts of the

crime for which respondent Level was convicted as set

forth in the majority opinion of ‘he California Court of

Appeal in People v. Level, supra, 103 Cal. App.3d 899,

902-903. (Appendix A, pp. 39-41.)

‘“‘Frances Brown and her husband attended

evening classes at Bakersfield College. On No-

vember 15 she died of hemorrhage and cerebral

laceration due to blunt force trauma with skull

fracture by the hand of defendant.

‘‘About 6 p.m. Frances left her husband

studying in their van parked in the college

parking lot to attend a class. Shortly after 6 p.m.

a Student observed Frances carrying her books

walk in the parking lot followed about 20 feet

behind by defendant carrying a metal table leg

with which he was poking the ground while he

walked. Later her husband in the van saw

Frances return to the parking lot followed by a

man about 6 feet behind; when he looked up

again he heard a thud and saw her hit the ground

and bounce, then saw defendant bend over her,

pick her up and try to drag her toward another

car; he got out of the van and briefly pursued

defendant who ran away; Frances was uncon-

scious and died soon thereafter in a hospital. Her

books, purse and keys were strewn about; a

id

metal table leg was on the ground.!

“Defendant, who fit the description of the

suspect, was arrested by police on the campus at

6:20 p.m.; fresh splattered blood was on his

hands and shoes; his fingerprints were on the

table leg. He gave written consent to search his

car. A letterman’s jacket was found in the trunk

of the car; a description of the clothes worn by

the suspect included a letterman’s jacket. Tests

showed that blood taken from the defendant’s

hands and his jacket, was not consistent with his

blood type; blood on the metal table leg and

jacket was consistent with that of Frances. A

“TMDT (metal detection) test indicated traces

of steel in his right hand. After having been given

his Miranda rights and waived the same, defen-

dant made a confession which was received in

evidence.

“In his testimony? defendant attempted to

establish self defense.”

“!This table leg was identified by the student as the

same one he earlier had seen defendant carrying while

following Frances.

‘2 Defendant testified that he thought Frances looked

‘appealing,’ so he decided to try to ‘socialize’ with her; she

rebuffed him when he approached her, and he loitered

around while she walked away; he became curious why

she did that; he had a table leg which he was using batting

‘paper and stuff,’ followed her, caught up with her and

asked her why she had turned from him; she replied

‘Because you Niggers are dirty and low down and if you

don’t get your black ass away from me I am going to blow

your head off; she reached for her purse and he thought

she was reaching for a weapon; he saw something shiny in

her hand, he tried to hit her in the back with the table leg,

but she moved and bent her legs and the table leg struck

15

Petitioner further adopts the Statement of Facts relative

to the motion to suppress respondent Level’s statements to

the authorities from the dissent of Justice Hanson. As

discussed in People v. Level, supra, 103 Cal. App.3d 899,

910 fn. 3 (Appendix A, p. 51), Justice Hanson in his

dissent used the following procedural history of the motion

to suppress:

“The admission of the tape recording in

question was either sought to be suppressed or

objected to on three separate occasions during

the more than a year the case was in the trial

court and in each instance the request was

denied.

**The first occasion was at defendant’s motion

to suppress the tape pursuant to Penal Code

section 1538.5 before Judge P.R. Borton in the

Kern County Superior Court at the February 21

and 28, 1978, hearing. The court denied the

motion. This is the hearing which is before this

court on appeal.

“The second occasion was when defense

counsel renewed the motion to suppress the tape

before Judge Bruce A. Thompson, the trial

judge, following the change of venue to Ventura

County. The motion was submitted on the

transcript of the February 1978 hearing and was

again denied.

(footnote continued from previous page)

her head; she fell; he knew he could not just leave her

there, so he picked her up to see what was wrong with her

and a man chased him; he returned to his car and put the

jacket in the trunk then returned to the campus.”

16

‘The third occasion was following the trial

wher defense counsel raised the issue again as

one of his grounds supporting the defense motion

for a new trial. Judge Thompson denied the

motion for a new trial.”’ (Emphasis in original.)

The controlling facts relative to the motion to suppress,

which was the subject of both the majority and dissenting

opinions of the Court of Appeal, are adopted herein from

the dissent in People v. Level, supra, 103 Cal. App.3d

899, 911-916 (omitting footnote 5) [ Appendix A, pp. 52-

60 of Justice Hanson’s dissenting opinion].):'

‘*The record shows that neither Officer Den-

nis Armour, who apprehended the defendant in

the quad area of the Bakersfield College campus

shortly after the murder, nor Officer Robert

Anthony Ennis, who transported defendant to

the Bakersfield police station and stayed with

him until the detective in charge arrived, ques-

tioned the defendant about the facts of the

offense. It was the department policy that the

detectives conduct all investigations. Officer

Singleton, a detective with 14 years experience,

who was assigned to the case conducted the

'The majority, in reversing, concluded that the trial court erred

when it denied said motion relative to defendant’s taped statements in

that defendant had invoked his right to remain silent. The dissent

concluded to the contrary, and maintained that the judgment should

_ be affirmed. (People v. Level, supra, at pp. 905, 918 [Appendix A,

pp. 43-44, 64].)

interview. Set out haec verba in footnote 4 below

are the portions of Officer Singleton’s testimony

at the hearing on the 1538.5 motion relevant to

the issue before us. This testimony appears in

only 9 pages of the total of about 2,000 pages of

reporter's transcript comprising the complete

record on appeal.

4Following is the relevant testimony of Officer Singleton

at the defendant’s motion to suppress the taped confession

in question:

‘(DIRECT EXAMINATION]

‘/BY MR. McNUTT (deputy district attorney)]

‘Q Prior to conducting an interview with the suspect,

were you aware of the fact he was under arrest?

‘A Yes, sir.

‘Q Was your interview with him relating to a possible

homicide at B.C.?

‘A It was a homicide at that time.

‘Q It had been confirmed as a homicide?

‘A Yes, sir.

‘Q Prior to conducting an interview with the defend-

ant, did you advise him of his constitutional rights per

Miranda?

‘A Yes, sir.

‘Q And for that purpose, did you utilize any artificial

devices?

‘A I used a card provided by the Police Department.

‘Q And do you have that same card with you here

today?

‘A Yes, sir.

‘Q Would you recite on the record, please, exactly

what you related to Mr. Level on November 15th, prior to

conducting your interview with him?

‘A Yes. “Number one, you have the right to remain

17

18

(footnote continued from previous page)

silent.”” And I asked him if he understood what that

meant. “Yes.” “Two, anything you say can and will be

used against you in court.” And I asked him if he

understood those. And he stated he did. “Three, vou have

the right to consult with a lawyer before answering any

questions and have a lawyer with you during any

questioning.” And I asked him ifhe understood that, and

he said, “Yes.” The fourth one, “If you cannot afford a

lawyer, one will be provided free of cost, if you want one.”

And I asked him if he understood that, and he said,

“Yes.” And I asked, ‘Having these rights in mind, do you

want to go ahead and make a statement to Detective

Horton and myself regarding your involvement, ifany, in

the assault?”, and he said he would.

‘Q Did you indicate to him at that te that the victim

had died?

‘A Yes, sir.

‘Q Was he advised of the fact he was under arrest as a

suspect in the killing of that victim?

‘A Yes, sir.

‘Q Was this Mirandazation on tape?

‘A No, sir.

‘Q Did you subsequently to giving him his rights and

obtaining the waiver, interview him regarding the possible

homicide?

‘A Yes, sir.

‘Q And was that on tape?

‘A No, sir.

‘Q For what length of time did you conduct an inter-

view with him regarding the homicide?

‘A It was approximately one hour.

‘Q Subsequent to that interview, did you conduct

another interview?

‘A Yes.

‘Q Was that interview on tape?

(footnote continued from previous page)

‘A Yes, sir.

‘Q How soon after the first interview did the second

interview take place?

‘A It commenced, I believe, at 11:40 p.m.

‘Q On the same date?

‘Q Yes, sir.

‘Q Why the break between the first interview and the

second interview?

‘A We initially got the initial statement from him, and

then at one point he requested to talk with his mother. And

we allowed him to do that; to make a phone call to his

mother.

‘Q Did he at any time indicate that he did not want to

talk to you anymore or that he wanted an attorney?

‘A No, sir.

‘Q Did he in fact talk with his mother?

‘Q Yes, sir.

‘Q How soon after that was it you conducted the

second interview on tape?

‘A It was shortly after his conversation. We were

waiting for her to come down to the police station. Before

he wanted to make the phone call to his mother, I got the

impression that he did want to make a statement regarding

the actual facts of the assault. But he was for some reason

or other, uneasy. And so we let him make the phone call to

his mother. And afterwards, we went back to the room,

talked a little longer, and I asked him if he would make a

statement if it was tape recorded; therefore, there could be

no way that we could indicate in the report other than what

he stated to us.

‘Q And who indicated that this second interview

should be on tape?

‘A I asked if he would go ahead and make a statement

without his mother there, if we tape recorded it, and he

indicated he would.

20

(footnote continue! from previous page)

‘Q Was he in effect asking that the second interview be

taped?

‘A Yes.

‘MR. KING [deputy public defender]: Objection, your

Honor, as calling for a conclusion.

‘THE COURT: Sustained.

‘Q (by Mr. McNutt) Did he ask that the second

interview be taped?

‘A I suggested it to him, and he said he wished it

taped.

‘MR. McNUTT: Your Honor, and Counsel, I don’t be-

lieve it’s necessary for the purpose of the proceedings to go

into the content of the conversation. I will offer a

stipulation that the officer would testify to the content of

the conversation as contained in the officer’s report and

the preliminary transcript, and the second interview was

taped. Unless Counsel for some reason wants to go into it

at this time, that is. I would also stipulated [sic] there is

relevant, and material, and possibly incriminating evi-

dence contained in those statements.

‘MR. KING: I think in this hearing, your Honor, that

the record should be complete. I am not prepared to

stipulate at this time.

“THE COURT: All right, Mr. McNutt.

‘MR. McNUTT: With the Court’s permission then, I

will stop my direct at this point. I simply wanted to

establish the Miranda warning. And Counsel can get as

much as he wants in getting out testimony.

‘THE COURT: All right.

‘CROSS-EXAMINATION

‘BY MR. KING:

‘Q Mr. Singleton, prior to interviewing Mr. Level, did

you have any conversation with Mr. Ennis?

‘A I believe I went into the lab twice — once when I got

back to the station from being out in the field, and I just

briefly looked in the lab, and observed Mr. Level and Mr.

(footnote continued from previous page)

Ennis, and told them I would get to them as soon as

possible. And then after my interview with the victim’s

husband and two other individuals, I again went in, and

told them I would be just a few more minutes. But I had no

direct conversation with Mr. Ennis.

‘Q Did you talk to Mr. Ennis regarding the search of

the car?

‘A I had no idea there was a car at the college.

‘Q When did you first learn about a car being involved

in this case?

‘A It was after one of the interviews — one of the three

interviews — I don’t know which one — I learned that they

had found a jacket, and that there was blood on the jacket.

‘Q Do you know what time that was?

‘A No, I have no idea, sir.

‘Q Was it before you talked to Mr. Level?

‘A Oh, yes, sir.

‘Q And whom did you learn or obtain that information

from?

‘A I do not recall, but it was not from Mr. Ennis.

‘Q Was it Mr. Foy?

‘A I don’t belive I saw Mr. Foy that night.

‘Q You were talking about three interviews? Who were

the subjects in those interviews?

‘A The victim’s husband, Mr. Brown; Bill Pedeton;

and a Kirk Brown.

‘Q And where did these interviews take place?

‘A At the Police Department.

‘Q And these were the possible witnesses to the

offense?

‘A That is correct, sir.

‘Q And when you interviewed them, you used a tape

recording of their conversation?

21

22

(footnote continued from previous page)

‘A That is correct, sir.

‘Q When you interviewed Mr. Level, you did not use a

tape recorder? Is that right?

‘A That is correct, sir.

‘Q And where was the tape recorder at the time that

you had previously used for the three witnesses?

‘A Either in my office or in the — I believe it was in my

office.

‘Q Was there anything defective with that tape re-

corder?

‘A No, sir.

‘Q Was there any particular reason that you did not use

the tape recorder when you talked to Mr. Level?

‘A Normally, it makes individuals very uneasy, and

they won’t talk, or they feel hesitant for some reason, and

it intimidates them.

‘Q You did not feel that was true, however, when you

interviewed the three witnesses?

‘A No, because they are not suspects.

‘Q Now, in the first statement that you obtained from

Mr. Level, did he indicate to you he wanted to phone his

mother?

‘A It was towards the end. That’s when we broke when

he wanted to place a phone call to his mother.

‘Q And he told you that he did not want to talk to you

until he had talked to his mother?

‘A Itis not that he didit’t want to talk to me. He did not

want to make a statement regarding the actual facts of

the assault without talking to his mother.

‘Q And you allowed him to make the phone call?

‘A That is correct.

(footnote continued from previous page)

‘Q Did you monitor that phone call?

‘A No, sir.

‘Q Did any officer, to your knowledge, monitor that

phone call?

‘A No, sir.

‘Q How long did the phone call last?

‘A Two or three minutes.

‘Q And what time was it made?

‘A Sometime between 11:10 and, I would say, maybe

11:15 or 11:20.

“*Q And after the phone call, Mr. Level told you that he

wanted to have his mother present before he made any

statement?

‘A Yes, sir.

‘Q And you did not stop questioning him?

‘A No, sir. We were back in the interview room,

waiting for her to respond to the station, and we were just

sitting there, talking. And I suggested that he might not

want to say something in her presence. He might feel

uncomfortable, but if we put it on tape, then there would

be no question as to what his statement was.

‘Q Did you tell Mr. Level that if he wanted to make the

taped statement, that you would show it to his mother and

let her listen to it when she arrived?

‘A I don’t recall saying that.

‘Q Mr. Level’s statement to you was he wanted to have

his mother present when he gave you a statement?

‘A That’s the impression I got, yes, sir.

‘Q Did he say that?

‘A I don’t recall.

‘Q Do you recall testifying at the preliminary hearing?

‘A Yes, sir.

23

24

(footnote continued from previous page)

‘Q Do you recall being questioned that when Mrs.

Level came down to the station, he wanted to talk to her

before he gave a statement? Do you recall being asked

that? .

‘A Yes.

‘Q And do you recall answering, “He (indicating Mr.

Level) would like to have her present while he was

making the statement?”

‘A Yes, sir.

‘Q Did he tell you that?

‘A I don’t recall if I was told or I just got that

impression.

‘Q Do you recal! making the answers I have read to

you?

‘A No, sir.

‘Q MR. KING: Your Honor, may I approach the

witness with the transcript of the preliminary hearing?

“THE COURT: Certainly.

“MR. KING: Page 1119, Line 25.

“THE WITNESS: He indicated he wanted to talk to

her before he gave a statement. That’s at Line 25?

“MR. KING: Line 27?

‘A Yes, sir, that’s in the transcript.

‘Q He indicated he wanted to have his mother present

when he gave you a statement?

‘A Yes, sir.

‘Q And then you suggested to him that he make a tape

recording instead of having his mother present?

‘A That’s correct, sir.

‘Q Did you ever indicate to him that his mother would

be allowed to listen to the tape recording?

‘A I don’t think so.’ (Italics added.)

“In defendant’s statement tape recorded by

Officer Singleton which the defense sought to

have suppressed and which was admitted into

evidence and played to the jury during the trial,

he said that he was at the Bakersfield College

campus looking for a friend named Mylo and

picked up a metal table leg which he found on

campus; that while he was using it to hit at a

piece of paper and walking toward the parking

lot he saw the victim; that he started to follow her

and said: ‘Hey. Do you have a few minutes?’;

that his intention was to ‘get any information like

her phone number or. . .’; and that the victim

said: ‘I don’t have any time for any niggers’ and

walked away. The defendant stated that he ‘got

mad as hell for what she said’ and hit her with the

metal table leg using it ‘like a bat’; that when he

tried to drag her away, ‘the guy jumped out from

wherever he was, he came from somewhere and

ran towards me’ so he dropped the victim and

ran away; that he went to his car and put his

letterman’s jacket in the trunk because he ‘didn’t

want anybody to see the jacket’; and when he

went back into campus looking for his friend

Mylo he was arrested by the police officer.

When asked what defendant did with the table

leg, he said: ‘I just dropped it, left it there.’

When asked toward the end of the tape if ‘there

[was] anything else that happened that we

haven’t asked you about?’ the defendant an-

swered, ‘Not that I can think of.’ At the end of

the tape the defendant apparently confirmed that

he was read his rights and that he was not

promised or threatened in any way and that he

gave his statement freely and voluntarily. . . .”

25

26

‘*The trial court denied defendant’s motion to

suppress the above taped confession and it was

admitted into evidence.” (Footnote omitted.)

REASONS WHY A WRIT OF CERTIORARI

SHOULD BE GRANTED

WHENEVER AN ADULT REQUESTS TO HAVE

HIS MOTHER PRESENT BEFORE MAKING A

STATEMENT TO THE POLICE, AFTER WAIVING

HIS CONSTITUTIONAL RIGHTS, THERE IS NO

INVOCATION OF ANY RIGHT

TO REMAIN SILENT.

In a far reaching opinion, the majority of the Court of

Appeal, contrary to recent constitutional interpretations

of this Court, in effect holds that when an adult requests to

have his mother present before speaking to the police, that

such is an invocation of a right to remain silent under

Miranda vy. Arizona (1966) 384 U.S. 436. (People v.

Level, supra, 103 Cal. App.3d 899, 905-906 [ Appendix

A, pp. 43-45].) It is urged that such an overly broad

interpretation of Miranda goes beyond the scope and

purpose of said decision and is in conflict with recent

pronouncements of this Court relative to the breadth of the

Miranda doctrine.

To say that a request by an adult to have his mother

present before making a statement to the authorities is an

invocation of the right to remain silent, creates an

overreaching misinterpretation of the Miranda decision

and obliterates guidelines for law enforcement to follow in

their attempt to comply with the constitutional principles

enunciated by the courts. As pointed out by Justice

Hanson in his dissent, respondent Level was transported

from the quad area of the Bakersfield College Campus

Shortly after the murder and then was taken to the

4

27

Bakersfield Police Station during which time, he was not

questioned about the facts of the offense. (People v. Level,

supra at p. 911 [Appendix A, p. 52].) At the police

station, respondent Level was warned of his constitutional

rights in pertinent part as follows:

ae

. . . . ‘Number one, you have the right to

remain silent.’ And I asked him if he understood

what that meant. ‘Yes.’ ‘Two, anything you say

can and will be used against you in court.’ And I

asked him if he understood those. And he stated

he did. ‘Three, you have the right to consult with

a lawyer before answering any questions and

have a lawyer with you during any questioning.’

And I asked him if he understood that, and he

said, ‘Yes.’ The fourth one, ‘If you cannot afford

a lawyer, one will be provided free of cost, if you

want one.’ And I asked him if he understood

that, and he said, ‘Yes.’ And I asked, ‘Having

these rights in mind, do you want to go ahead and

make a statement to Detective Horton and

myself regarding your involvement, if any, in the

assault?’, and he said he would.” (People v.

Level, supra, at pp. 914 fn. 4 [Appendix A, pp.

- |; Supp. RT 43-44.)

The police interviewed respondent Level for approxi-

mately an hour regarding the homicide. At no time did

respondent Level indicate that he did not want to talk to

them anymore and that he wanted an attorney. (Peopie v.

Level, supra, at pp. 912 fn. 4[ Appendix A, p. 54]; Supp. RT

p. 45.)

Towards the end of the first conversation, respondent

Level said he wanted to place a phone call to his mother. It

was not that he did not want to talk to the authorities,

respondent Level did not want to make a statement

28

regarding the actual facts of the assault without speaking

to his mother. The police allowed him to make that

telephone call to speak to his mother. It was the officer’s

impression that respondent Level wanted to have his

mother present when he gave a statement. After the

telephone call to his mother, respondent Level said that he

wanted to have his mother present before he made any

statement. He indicated that he wanted his mother present

when making the statement. (People v. Level, supra, at pp.

914, 915 fn. 4 [Appendix A, pp. 56-59}; Supp. RT 44-

a

While the police were back in the interview room

waiting for respondent Level’s mother to respond to the

station, they were sitting there talking. The officer sug-

gested that respondent Level might not want to say

something in her presence and might feel uncomfortable

but if they put the matter on tape, there would be no

questions as to what his statement was to the authorities.

(People v. Level, supra at p. 914 fn. 4[ Appendix A, p. 58];

Supp. RT 49-51.) There was a second interview

which was tape recorded in which respondent Level spoke

about the attack on the victim. (People v. Level, supra, at

pp. 912 fn. 4 [Appendix A, p. 54]; Supp. RT 44-45.)

Based upon the above factual context, the California

Court of Appeal held: (1) respondent Level was assert-

ing his right to remain silent when he asked to have his

mother present before making any statement, and (2) the

police erred in continuing to talk with respondent Level after

he asked for the presence of his mother. (People v. Level,

supra, at pp. 905-907 [Appendix A, pp. 43-47].)

Upon filing of a petition for rehearing by petitioner, the

majority of the California Court of Appeal attempted to

clarify their opinion by means of the following language:

29

“In light of the Petition for Rehearing filed by

respondent [Petitioner State of California], we

add the following, equally established: an adult

has no right to demand that a parent (or anyone

else, other than a lawyer) be preseut during

questioning (cf People v. Burton (1971) 6

Cal.3d 375, 383-384; Fare v. Michael C.

(1979) US. ), but he does have a

right to ‘indicate in any manner. . . that he

wishes to remain silent.’ That is what defendant

did. His doing so required that the questioning

cease.”’ (People v. Level, supra, at p. 928

| Appendix B, pp. 78-79].)

It is urged that the majority of the Court of Appeal’s

holding that respondent Level invoked his rights when he

requested to have his mother present before making a

statement to the authorities, is not only a manifest

misinterpretation of the Miranda doctrine, but it is also

contrary to the recent opinion of this Court in Fare v.

Michael C. (1979) 442 U.S. 707.

In Michael C. this Court rejected the argument that a

minor invoked his Miranda rights by requesting a proba-

tion officer noting that per se aspects of the Miranda

safeguards were limited to a request for an attorney. (Fare

v. Michael C., supra, at p. 719.) Thus in Michael C. this

Court cast great doubt upon the viability of the California

Supreme Court decision of People v. Burton, 6 Cal.3d

375, 381-388; 99 Cal. Rptr. 1, 5-7, 491 P.2d 793, 797-

799 (1971); which held that a minor invoked his right to

remain silent when requesting the presence of a parent.

(Fare v. Michael C., supra, at pp. 715-716 fn. 3; People v.

Alfieri, 95 Cal. App.3d 533, 544, 157 Cal. Rptr. 304, 311

(1979).) While it appears that the doctrine set forth in

Burton is no longer tenable under Michael C., the facts of

30

this case do not even rise to the status of the situation in

Burton since respondent Level at the time of questioning

was not a minor but an adult.

At the time of the murder and the interrogation,

respondent Level was 19 years of age. (People v. Level,

supra, at p. 906 fn. 3 [Appendix A, p. 45]; Supp. RT 37.)

Under the 26th Amendment to the United States Consti-

tution, section 1, it is stated:

' “The right of citizens of the United States,

who are eighteen years of age or older, to vote

shall not be denied or abridged by the United

States or by any State on account of age.”

In California, the age of majority is that of 18 years under

California Civil Code sections 25 and 25.1. Under the

California Welfare and Institutions Code, section 602,

the juvenile court only asserts jurisdiction over those

persons who commit crimes under the age of 18. As

Justice Hanson pointed out in his dissent:

‘““.. . . In the instant case the evidence is

uncontradicted that the defendant was not a

minor but was an adult having reached his

majority, being 19 years old at the time of the

murder. He had shed the protective cocoon the

law affords to minors and assumed the respensi-

bilities and obligations of an adult.”’ (People v.

Level, supra, at p. 917 [Appendix A, p. 62].)

To hold that an adult requesting his mother is tanta-

mount to a request for a lawyer would in effect convey the

Miranda doctrine into the arena of the unworkable. As

this Court stated at page 719 of Michael C:

‘*The rule in Miranda, however, was based on

this Court’s perception that the lawyer occupies

a critical position in our legal system because of

31

his unique ability to protect the Fifth Amend-

ment rights of a client undergoing custodial

interrogation. Because of this special ability of

the lawyer to help the client preserve his Fifth

Amendment rights once the client becomes

enmeshed in the adversary process, the Court

found that ‘tie right to have counsel present at

the interrogation is indispensable to the protec-

tion of the Fifth Amendment privilege under the

system’ established by the Court. Jd., at 469.

Moreover, the lawyer’s presence helps guard

against overreaching by the police and ensures

that any statements acutally obtained are ac-

curately transcribed for presentation into evi-

dence. Jd., at 470.

“The per se aspect of Miranda was thus

based on the unique role the lawyer plays in the

adversary system of criminal justice in this

country. Whether it is a minor or an adult who

stands accused, the lawyer is the one person to

whom society as a whole looks as the protector

of the legal rights of that person in his dealings

with the police and the courts. For this reason,

the Court fashioned in Miranda the rigid rule

that an accused’s request for an attorney is per se

an invocation of his Fifth Amendment rights,

requiring that all interrogation cease.”

Just as a probation officer was found not to be in the

same position as an attorney under the judicial system, so

is a parent even less equipped to assume the role demanded

of a lawyer in the court process. In addition, the attempt of

the Court of Appeal in the opinion on the denial of

rehearing to distinguish Michael C., fails. While the Court

of Appeal conceded that an adult has no right to demand

32

the presence of a parent (or non-lawyer) during question-

ing, its conclusion that respondent Level’s request to have

his mother present before making a statement was an

invocation of his right to remain silent, is a distinction

without a difference. (People v. Level, supra, at p. 928

[Appendix B, p. 79].)

In fact, this attempt at distinction, enunciated by the

Court of Appeal in its opinion denying rehearing, was in

effect rejected by this Court when at pages 723 and 724 of

the Michael C. opinion it was stated:

‘““Nor do we believe that a request by a

juvenile to speak with his probation officer

constitutes a per se request to remain silent. As

indicated, since a probation officer does not

fulfill the important role in protecting the rights

of the accused juvenile that an attorney plays,

we decline to find that the request for the

probation officer is tantamount to the request for

an attorney. And there is nothing inherent in the

request for a probation officer that requires us to

find that a juvenile’s request to see one neces-

sarily constitutes an expression of the juvenile’s

right to remain silent. As discussed below,

courts may take into account such a request in

evaluating whether a juvenile in fact had waived

his Fifth Amendment rights before confessing.

But in other circumstances such a request might

well be consistent with a desire to speak with the

police. In the absence of further evidence that

the minor intended in the circumstances to

invoke his Fifth Amendment rights by such a

request, we decline to attach such overwhelming

significance to this request.”’

Thus, under Michael C. a request, especially by an adult,

cE

to have his mother present before making a statement,

would not constitute a per se request to remain silent.

The interpretation of Miranda, set forth by the Califor-

nia Court of Appeal, is not only contrary to Michael C., it

is also in conflict with the recent decision of this Court of

North Carolina v. Butler (1979) 441 U.S. 369. In Butler

this Court held that an explicit statement of waiver is not

always necessary to support a finding that there was a

waiver of the right to counsel under Miranda. Rather, in

Butler, the question of waiver is to be determined on the

particular facts and circumstances surrounding the case

and therefore the concept of an inflexible per se rule was

rejected. (North Carolina v. Butler, supra, at pp. 374-

375.) The California Court of Appeal majority opinion,

contrary to both Michael C. and Butler has created a per

se rule that whenever an individual, whether adult or

minor, requests to have his mother present before ques-

tioning such is automatically an invocation of the right to

remain silent.

In Butler, the defendant after being warned of his

constitutional rights and stating he understood them and

agreeing to speak with the authorities, refused to sign “An

Advisement of Rights Form.” (North Carolina v. Butler,

supra, at pp. 370-371.) This Court held that the mere fact

that the defendant in Butler refused to sign the form, did

not in itself show an invalid waiver but rather the question

of waiver had to be determined on the particular facts and

circumstances surrounding the case. (North Carolina v.

Butler, supra, at pp. 374-375.)

As such, the mere fact of an adult’s request to have his

mother present before speaking to the authorities should

not be deemed an invocation of the right to remain silent as

it creates an inflexible per se rule condemned both in .

Michael C. and Butler. Rather, the test as described in

34

Michael C. at pages 724-725, is:

“.. . . Thus, the determination whether

statements obtained during custodial interroga-

tion are admissible against the accused is to be

made upon an inquiry into the totality of the

circumstances surrounding the interrogation, to

ascertain whether the accused in fact knowingly

and voluntarily decided to forgo his rights to

remain silent and to have the assistance of

counsel. Miranda v. Arizona, 384 U.S., at 475-

477.”

The totality of the circumstances reflects a knowing and

voluntary waiver in this case. As has been discussed,

respondent Level was advised of his constitutional rights

which he waived and never indicated that he did not want

to talk to the authorities or that he wanted an attorney.

(People v. Level, supra, at p. 912 fn. 4 [Appendix A, pp.

53-54]; Supp. RT 43-45.) At the end of the taped conversa-

tion, respondent Level apparently confirmed that he was

read his rights and that he was not promised or threatened

in any way and that he gave his statement freely and

voluntarily. (People v. Level, supra, at pp. 915-916

[Appendix A, p. 60]; RT 1279-1280.)

Furthermore, there is no doubt that the majority opinion

of the Court of Appeal in holding that respondent Level

invoked his right to remain silent by requesting the

presence of his mother before speaking to the authorities,

did so on purely federal grounds.

The majority opinion, as earlier discussed, ruled that

(a) respondent Level invoked his right to remain silent

when he asked for the presence of his mother before

speaking to the authorities, and that(b) the police erred in

resuming the interview after respondent Level’s request

for his mother. (People v. Level, supra, at pp. 905-907

[Appendix A, pp. 43-47].)

35

The cases cited by the court for its ruling that the request

for the mother was an invocation of the right to remain

silent were all cases interpreting this Court’s decision in

Miranda; that is, People v. Superior Court (Keithley), 13

Cal.3d 406, 410, 118 Cal. Rptr. 617, 619, 530 P.2d 585,

587 (1975); People v. Burton, supra, 6 Cal.3d 375, 381-

388, 99 Cal. Rptr. 1, 5-7, 491 P.2d 793, 797-799 (1971);

People v. Randall, | Cal.3d 948, 954-955, 83 Cal. Rptr.

58,62, 464 P.2d 114, 118(1970); People v. Marshall, 41

Cal. App.3d 129, 134, 115 Cal. Rptr. 821, 824 (1974);

People v. Parker, 45 Cal. App.3d 24, 29, 119 Cal. Rptr.

49, 52 (1975); note the In Chambers Opinion of Justice

Rehnquist in granting the stay of petitioner in Fare v.

Michael C. (1978) 439 U.S. 1310, 1311.)

Any doubt that the Court of Appeal rested its decision

on federal grounds in holding that respondent Level

invoked his right to remain silent when asking for his

mother’s presence, is completely dispelled by the clarifi-

cation of the opinion in the order denying rehearing. There

the Court of Appeal cited Miranda, Michael C. and

People v. Burton, supra, for the authority that while an

adult has no right to demand a parent to be present during

questioning, he does have a right to indicate in any manner

that he wishes to remain silent. (People v. Level, supra, at

pp. 925-928 [Appendix B, pp. 78-79].)

As such, the majority opinion of the Court of Appeal on

this issue is an interpretation of both Miranda and

Michael C. and as such purely one of federal dimension. It

should be noted that the California Supreme Court upon

remand of the Michael C. opinion affirmed the judgment

citing as authority the Michael C. opinion of this Court.

(In re Michael C., Number 11, April 17, 1980 California

Advance Sheets, Minutes of the California Supreme

Court, p. 11 (Crim. 19921, April 1, 1980).) Therefore,

36

upon the remand the California Supreme Court declined

to reject the Michael C. opinion by means of independent

state grounds but instead affirmed the judgment in light of

Michael C.

Arguably, the second holding of the majority of the

Court of Appeal that it was error for the authorities to

resume speaking to respondent Level after he requested

the presence of his mother was based on independent state

grounds by reason of the citation of People v. Pettingill, 21

Cal.3d 231, 246-251, 145 Cal. Rptr. 861, 873-874, 578

P.2d 108, 117-121 (1978). (People v. Level, supra, at p.

907 [Appendix A, p. 46].) Pettingill refused to follow this

Court’s decision in Michigan v. Mosley (1975) 423 U.S.

96, by relying on independent state grounds. However,

Pettingill is cited solely on the issue that the police should

not have continued to speak to respondent Level after his

request to have his mother present on the grounds that it

was improper for the police to talk to him when he had

invoked his right to remain silent. The issue raised in

Pettingill becomes totally irrelevant and moot if in fact

there was no invocation of the federal constitutional right

to remain silent when respondent Level requested to have

his mother present before questioning.

If in fact, under the Federal Constitution, respondent

Level did not invoke his right to remain silent when he

asked to have his mother present before speaking to the

authorities, the police under Pettingill could continue to

speak to him. Therefore the issue presented is purely

federal in nature and subject to review by this Honorable

Court, “‘. . . since a state court can neither add to nor

subtract from the mandates of the United States Consti-

tution.” (North Carolina v. Butler, supra, at p. 376;

Oregon v. Hass (1975) 420 U.S. 714, 179.)

In order for the standards of Miranda vy. Arizona to be

37

workable, they must be limited by realistic guidelines for

law enforcem. ‘t to follow. The question raised by the

majority opinion of the Court of Appeal is where the line is

to be drawn. Michael C. has created realisitic circum-

scriptions by reason of limiting that line to a licensed

attorney. However, the majority Court of Appeal opinion

could conceivably expand those limits to include not only

parents but other relatives, friends, acquaintances or

persons arbitrarily picked from within or outside the

community. It is therefore strongly urged that the within

petition be granted because no purpose set forth in the

Miranda decision is served when an adult can be said to

invoke his right to remain silent by merely asking for the

presence of his mother before being questioned by the

authorities.

CONCLUSION

For the foregoing reasons, petitioner submits that the

writ of certiorari should issue and review the decision of

the Court of Appeal of the State of California.

Respectfully submitted,

GEORGE DEUKMEJIAN, Attorney General

of the State of California

ROBERT H. PHILIBOSIAN, Chief Assistant

Attorney General — Criminal Division

S. CLARK MOORE,

Assistant Attorney General

NORMAN H. SOKOLOW,

Deputy Attorney General

HOWARD J. SCHWAB,

Deputy Attorney General

By HOWARD J. SCHWAB,

Deputy Attorney General

Attorneys for Petitioner

APPENDIX

39

Appendix A

In the Court of Appeal

State of California

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIE EDWARD LEVEL,

Defendant and Appellant.

2 Crim. No. 34398

(Super. Ct. No. 14108)

CERTIFIED FOR PUBLICATION

APPEAL from a judgment of the Superior Court of

Ventura County. Bruce A. Thompson, Judge. Reversed.

Carolyn Froeberg, under appointment by the Court of

Appeal, for Defendant and Appellant.

George Deukmejian, Attorney General, Robert H.

Philibosian, Chief Assistant Attorney General, S. Clark

Moore, Assistant Attorney General, Norman H. Soko-

low and Howard J. Schwab, Deputy Attorneys General,

for Plaintiff and Respondent.

Defendant was accused of murder in Kern County.

After denial of his motion to suppress evidence, venue was

transferred to Ventura County. A jury found him guilty of

second degree murder. He appeals from the judgment.

40

Frances Brown and her husband attended evening

classes at Bakersfield College. On November 15 she died

of hemorrhage and cerebral laceration due to blunt force

trauma with skull fracture by the hand of defendant.

About 6 p.m. Frances left her husband studying in their

van parked in the college parking lot to attend a class.

Shortly after 6 p.m. a student observed Frances carrying

her books walk in the parking lot followed about 20 feet

behind by defendant carrying a metal table leg with which

he was poking the ground while he walked. Later her

husband in the van saw Frances return to the parking lot

followed by a man about 6 feet behind; when he looked up

again he heard a thud and saw her hit the ground and

bounce, then saw defendant bend over her, pick her up and

try to drag her toward another car; he got out of the van and

briefly pursued defendant who ran away; Frances was

unconscious and died soon thereafter in a hospital. Her

books, purse and keys were strewn about; a metal table leg

was on the ground.!

Defendant, who fit the description of the suspect, was

arrested by police on the campus at 6:20 p.m.; fresh

splattered blood was on his hands and shoes; his finger-

prints were on the table leg. He gave written consent to

search his car. A letterman’s jacket was found in the trunk

of the car; a description of the clothes worn by the suspect

included a letterman’s jacket. Tests showed that blood

taken from the defendant’s hands and his jacket, was not

consistent with his blood type; blood on the metal table leg

and jacket was consistent with that of Frances. A

‘““TMDT” (metal detection) test indicated traces of steel

in his right hand. After having been given his Miranda

rights and waived the same, defendant made a confession

' This table leg was identified by the student as the same one he

earlier had seen defendant carrying while following Frances.

4]

which was received in evidence.

In his testimony? defendant attempted to establish self

defense.

Appellant’s primary contention is that his confession

was obtained in violation of his Miranda rights. The

following is part of the evidence adduced on the section

1538.5 motion in Bakersfield. Defendant was arrested on

campus and transported to the station. He signed a written

consent to a search of his car. He was in custody about

three hours before being given his constitutional rights.

During this time Officer Ennis talked with him about

school; no question was asked concerning the offense; he

only wanted to engage in conversation and not ask

questions; in a case of major significance it was depart-

mental policy that detectives conduct all investigation

other than preliminary investigation at the scene; inas-

much as Officer Ennis did not intend to ask any questions,

he did not advise defendant of his Miranda rights; after

about two hours defendant asked Officer Ennis if he could

telephone his mother; having determined from defendant’s

driver’s license that he was 19 years of age, he asked

?Defendant testified that he thought Frances looked “appealing,”

so he decided to try to “socialize’’ with her; she rebuffed him when he

approached her, and he loitered around while she walked away; he

became curious why she did that; he had a table leg which he was using

batting ** paper and stuff,” followed her, caught up with her and asked

her why she had turned from him; she replied ‘‘ Because you Niggers

are dirty and low down and if you don’t get your black ass away from

me I am going to blow your head off’; she reached for her purse and he

thought she was reaching for a weapon; he saw something shiny in her

hand, he tried to hit her in the back with the table leg, but she moved

and bent her legs and the table leg struck her head; she fell; he knew he

could not just leave her there, so he picked her up to see what was

wrong with her and a man chased him; he returned to his car and put

the jacket in the trunk then returned to the campus.

42

defendant to wait until the detectives arrived. Officer

Ennis knew defendant’s brother and friends, and his wife

was one of defendant’s former teachers; because defend-

ant was sweating profusely and appeared extremely

nervous, he conversed with defendant about mutual

acquaintances and knowledge in order to relax him.

Detective Singleton arrived at 10:10 p.m. and advised

defendant of his Miranda rights which he said he under-

stood and waived, and said he would make a statement.

Detective Singleton interviewed defendant for an hour

during which he denied committing the offense; however,

he “‘got the impression that [defendant] did want to make a

statement regarding the actual facts of the assault. But he

was for some reason or other, uneasy.”’; defendant then

asked to talk with his mother; a telephone call was made

and defendant talked with her two or three minutes;

defendant then told Detective Singleton he wanted to have

his mother present before he made any statement. As to

what occurred next, Detective Singleton testified “And

afterwards, we went back to the room; talked a little

longer, and I asked him if he would make a statement if it

was tape recorded; therefore,there could be no way that

we could indicate in the report other than what he stated to

us. . . . I asked if he would go ahead and make a

statement without his mother there, if we tape recorded it,

and he indicated he would. . . . I suggested it [that the

second interview be taped] to him and he said he wished it

taped.”

On cross-examination Detective Singleton testified

that defendant said he wanted to place a call to his mother,

““That’s when we broke. . . It is not that he didn’t want

to talk to me. He did not want to make a statement

regarding the actual facts of the assault without talking to

his mother.”’; however, after the phone call defendant told

43

him he wanted to have is mother present before he made

any statement; they returned to the interview room waiting

for her to arrive, and he (Detective Singleton) “‘suggested

that he might not want to say something in her presence.

He might feel uncomfortable, but if we put it on tape, then

there would be no question as to what his statement was.”’;

he got the “‘impression” that defendant wanted his mother

present when he gave a statement but could not recall if he

so stated; it was he|[ Detective Singleton] who suggested to

defendant that he make a tape recording instead of having

his mother present; although defendant’s mother was at

the station at the time defendant gave his confession, he

neither saw nor talked to her until he finished.

The court denied the motion stating, “I can’t find

anything in the evidence produced that would indicate to

me that there is in fact a violation of Miranda in this

case.”’ This court is not confronted with any conflict in the

evidence relative to the taping of defendant’s confession.

Thus it is our duty to examine the uncontradicted facts to

determine independently whether the trial court’s conclu-

sion of voluntariness was properly found. (People v.

McClary, 20 Cal.3d 218, 229.)

‘““Once warnings have been given, the subsequent

procedure is clear. If the individual indicates in any

manner, at any time prior to or during questioning, that he

wishes to remain silent, the interrogation must cease. At

this point he has shown that he intends to exercise his Fifth

Amendment privilege; any statement taken after the

person invokes his privilege cannot be other than the

product of compulsion, subtle or otherwise. Without the

right to cut off questioning, the setting of in-custody

interrogation operates on the individual to overcome free

choice in producing a statement after the privilege has

been once invoked.” (Miranda v. Arizona (1966) 384

44

U.S. 436, 473-474 [16 L.Ed.2d 694, 86 S.Ct. 1602].)

We are compelled under Miranda and the holdings of its

California progeny (People v. Fioritto, 68 Cal.2d 714;

People v. Ireland, 70 Cal.2d 522; People v. Randall, |

Cal.3d 948; People v. Burton, 6 Cal.3d 375; People v.

Carr, 8 Cal.3d 287; People v. Superior Court (Keithley)

13 Cal.3d 406; People v. Superior Court (Zolnay) 15

Cal.3d 729; People v. Disbrow, 16 Cal.3d 101; People v.

Enriquez, 19 Cal.3d 221; People v. McClary, 20 Cal.3d

218; People v. Pettingill, 21 Cal.3d 231), to hold, and we

do so reluctantly, that the confession was inadmissible

and mandates reversal of the judgment.

First, in the context of the events surrounding the

confession the only reasonable interpretation of defend-

ant’s assertion to Detective Singleton that he wanted to

have his mother present before he made any statement, is

that he thereby invoked his privilege against self-incrim-

ination and wished to remain silent. While defendant did

not expressly say he did not want to talk any more to the

detectives, Miranda teaches that if a suspect “‘indicates in

any manner’ that he wishes not to proceed with the

interview, no matter the reason, the interrogation must

cease. Miranda rights are deemed asserted when “con-

duct reasonably appears inconsistent with a present

willingness on the part of the suspect to discuss his case

freely and completely with police at that time.” (People v.

Randall, 1 Cal.3d 948, 956, fn. omitted; original empha-

sis.) He was not required to use any particular form of

words or conduct to indicate his unwillingness at that time

to continue with the interrogation. (People v. Superior

Court (Keithley) 13 Cal.3d 406, 410; People v. Randall,

1 Cal.3d 948, 955; People v. Burton, 6 Cal.3d 375, 381-

45

388) or to give any explanation or reason therefor.

(People v. Marshall, 41 Cal. App.3d 129, 134.) Conduct

inconsistent with a present unwillingness to discuss his

case fully and completely with police may be manifested,

as here, by a request for consultation with noncounsel

parties. (People v. Parker, 45 Cal. App.3d 24, 29.)

Although Detective Singleton during his first discussion

with defendant got the impression he did want to make a

statement, defendant’s statement to him that he wanted to

have his mother present before he made any statement

shows an outright unwillingness at that time to proceed

with the interview. In People v. Parker, 45 Cal. App.3d

24, defendant was advised of his Miranda rights by

Denver police; he said he would “ ‘just wait.’ ” Three

days later Los Angeles police advised him of his Miranda

rights; defendant said he wanted to see a psychiatrist. One

was obtained and defendant conversed with him for 10

minutes; the doctor gave defendant no advice but told the

officers “‘he had ‘this boy ready to make his confession.’ ”’

(P. 28.) Police then asked him if he was willing to discuss

his role in the murder, defendant said he was, and later

confessed. Relying on People v. Randall, 1 Cal.3d 948,

this court said that defendant’s response to the original

Miranda warning and his subsequent request to see a

psychiatrist prior to responding to the reinstituted ques-

tioning by police, are both inconsistent with a present

willingness to discuss the case freely at the time of the

questioning. (P. 29.)

3 Appellant who was 19 years old at the time has limited his claim

that his confession was not admissible to denial of his right to remain

silent, thus we do not have the problem of a minor’s right to have his

parents present during interrogation under People v. Burton, 6 Cal.3d

375, to which Attorney General devoted a good portion of respond-

ent’s brief.

46

Second, the interview did not cease after defendant

asserted his privilege. Detective Singleton conceded this

in his testimony on cross-examination.* Once having

invoked his right to remain silent, defendant was entitled

to have all interrogation efforts come to an end (People v.

Superior Court (Keithley) 13 Cal.3d 406, 410) and any

efforts of the detectives to convince him “‘to communicate

with” them immediately cease. (People v. McClary, 20

Cal.3d 218, 226,) The accepted rule in California based

on Miranda is that “once a suspect indicates he wishes to

assert his privilege against self-incrimination, it is unlaw-

ful for the police to continue to renew the interrogation and

any statement elicited thereafter is inadmissible. [Cita-

tions.]’’ (People v. Pettingill, 21 Cal. 3d 231, 240-241.)

Third, the resumption of the interview resulting in

defendant’s confession was initiated solely by and at the

Suggestion and urging of Detective Singleton despite

defendant’s invocation of his right to remain silent. The

court in People v. Randall, 1 Cal.3d 948 distinguishes two

situations in which a confession is made after a cessation

of questioning in response to invocation of the right to

remain silent. “‘(1) a change of mind on the part of the

defendant prompted by the advice of counsel, his own

psychological make-up, or similar facts; [and] (2) a

change of mind prompted by continued interrogation and

efforts to convince the defendant to communicate with the

4*Q [DEFENSE COUNSEL] And after the phone call, Mr.

Level told you that he wanted to have his mother present before he

made any statement? [f]] A [DETECTIVE SINGLETON] Yes,

sir. [1] Q And you did not stop questioning him? [{}] A No, sir.”

When asked how long he had defendant in his custody before the

Statements were tape-recorded, Detective Singleton answered

‘When we started the interview at 10:10, and we broke for the phone

call, and then we started again.”

47

officers. The former is not proscribed by Miranda, nor by

our application of its teaching in Fioritto and Ireland.

. . . ‘Volunteered statements of any kind are not barred

by the Fifth Amendment. . . Not only did we affirm our

adherence to this principle in the Fioritto case, but we also

and here indicated that even a defendant in custody might

make statements admissible under Miranda if it were

shown that such statements were the result of the defen-

dant’s own initiative and did not arise in context of

custodial interrogation.’ *’ (P. 956, fn. 7, original empha-

sis.) Thus, a suspect who has asserted his rights and

prevented further lawful interrogation nonetheless retains

the option, thereafter, voluntarily to initiate a confession,

but as stated in Randall and articulated in People v.

McClary, 20 Cal.3d 218 at pages 226-227: “‘ ‘a change

of mind prompted by continued interrogation and efforts

to convince the defendant to communicate with the

officers’ cannot be considered a voluntary, self-initiated

conversation.” We cannot fairly say on the facts here that

defendant in any manner voluntarily initiated either the

second interview or the confession that resulted from it.

The record shows that Detective Singleton continued

interrogation; asked, “‘And you did not stop questioning

him?’’, he answered “‘No, sir.’’ Clearly this change of mind

was prompted by the suggetions and queries of Detective

Singleton. As an example Detective Singleton testified “I

asked him if he would make a statement if it was tape

recorded”; “I asked if he would go ahead and make a

statement without his mother there, if we tape recorded

it.’ and he (Singleton) ““suggested that he might not want

to say something in her presence. He might feel uncom-

fortable. . . .”’ Based on Detective Singleton’s testi-

mony that after defendant told him he wanted to have his

mother present before he made any statement he asked

defendant if he would make a statement if it was tape-

recorded and if he would do so without his mother being

48

present, and suggested to defendant he might not want to

tell the facts in her presence because he might feel

uncomfortable, the dissent makes a distinction between

further “questioning the defendant about the crime for

which he was arrested.’ and making “‘statements [that]

pertained only to the MANNER in which the interview could

be completed,”’ and concludes that Detective Singleton

merely suggested the manner of completing the interview

by way of tape recording without his mother being present,

and defendant “‘of his own free will decided”’ to do this.

(Original emphasis.) But such view ignores the obvious

fact that while the questions referred to the method of

continuing the questioning, implicit in Detective Single-

ton’s questions is the misplaced and unsupported assump-

tion that defendant wished to speak to the officers about

the crime; ignores the teaching of People v. Randall, |

Cal.3d 948, 956, fn. 7 and People v. McClary, 20 Cal.3d

218, 227-228 that a change of mind and resulting

confession prompied by “efforts to convince the defend-

ant to communicate with the officers,’ which this clearly

is, cannot be considered a voluntary self-initiated confes-

sion; and ignores the concept that further talk or question-

ing by police which is a subtle attempt to subvert or avoid a

defendant’s assertion of his Miranda rights is prohibited.

(People v. Munoz, 83 Cal. App.3d 993, 995.) In posing

his questions, “‘if he would make a statement if. . .”’ and

“if he would go ahead and make a statement without his

mother there, if . . .” and making his suggestion to

defendant that the statement be tape-recorded — pertain-

ing to “the MANNER in which the interview could be

completed,’’ which Detectivé Singleton had no right at

that time to reinstitute or complete — he cleariy bypassed

or avoided defendant’s request to have his mother present

before he made a statement. (Original emphasis.) In

People v. Munoz, 83 Cal. App.3d 993, defendant said

49

maybe he should talk to his attorney whereupon Detective

Narramore said that was his business and he could if he

wanted to, but wished to explain to him why he was there

and to tell him what information he had; defendant told

him to go ahead; Narramore then told him what he knew

about the robbery, read his Miranda rights and asked if he

wished to talk; defendant answered in the affirmative and

confessed. Although Munoz involves an invocation of the

right to counsel, the court said at page 996: ‘““Munoz’s

remark, while ambiguous can be construed as an invoca-

tion of his right to speak to an attorney before questioning.

When Narramore told Munoz he wanted to tell him what

information he had, he avoided dealing with Munoz’s

request. His action served to ‘soften’ up Munoz, as he

must have intended it to, thus subverting Munoz’s not too

forcefully expressed wish to see his named attorney.”

The foregoing line of California authority leaves us no

alternative but to conclude that defendant’s confession

was inadmissible, and the trial court erred in denying his

motion to suppress. We have no more wish to reverse a

judgment which, without the confession, is supported by

overwhelming evidence of defendant’s guilt, than the

dissent; however, that error per se requires that we reverse

the judgment of conviction here. (People v. Fioritto, 68

Cal.2d 714, 720.) Unfortunately final disposition of the

case will be delayed and further expenditure of public

funds will result because of the necessity of retrial.

The judgment is reversed.

CERTIFIED FOR PUBLICATION

LILLIE, Acting P.J.

I concur:

EPSTEIN, J.*

*Assigned by the Chairperson of the Judicial Council.

50

DISSENTING OPINION OF HANSON, J.

I respectfully dissent. The majority opinion reverses the

judgment of conviction in the instant case on the ground

that the confession of defendant admitted into evidence

which was on tape recorded by Officer Bradley E.

Singleton following the murder of the victim on November

15, 1977, violated defendant’s Miranda ' rights and the

holdings of its California progeny and is therefore inad-

missible mandating a reversal per se.

I agree with the majority opinion that if the taped

confession was obtained under conditions violative of

defendant’s Miranda rights under binding case law au-

thority reversal is mandated (but see my concurring

opinion reversing a judgment of conviction in /n re Roland

K. (1978) 82 Cal. App.295, 302-303) even though the

error, as in the instant case, was harmless beyond a

reasonable doubt.

'Miranda vy. Arizona (1966) 384 U.S. 438.

2Uncontradicted testimony at the trial of the case at bench

disclosed that at about 6 p.m. on November 15, 1977, the female

victim, Frances Lorine Brown (age 24), was bludgeoned to death in a

parking lot at the Bakersfield College where she was attending

evening classes in order to obtain her teaching credentials. A metal

table leg was found near her body. A forensic pathologist who

performed the autopsy for the coroner’s office testified that she died of

“*skull fracture with laceration and contusion of the brain itself.’ The

lethal blow was delivered to the back of her head and she bled

profusely. Her husband who was sitting in a vehicle nearby saw his

wife (the victim) walking toward him smiling and a man followed her.

Her husband looked away momentarily to place some books back of

the seat and then heard a thud and when he looked around he saw his

wife bounce on the ground. He immediately exited his vehicle and saw

the assailant dragging his wife toward another car. He yelled and the

asSailant dropped his wife and ran. Witnesses in the area gave the

police, who were immediately called to the scene, a description of the

assailant and said he was wearing a letterman’s jacket, maroon in

51

However, I disagree that the record shows that defen-

dant’s Miranda rights were violated. I do not construe

either the Miranda case or any of its California progeny to

require a reversal under the unique facts of the instant

case. I cannot say as a matter of law that the superior court

fanned out on three separate occasions ? and erred in

denying defendant’s motion to suppress the tape recording

in question. I would affirm the judgment of conviction.

(footnote continued from previous page)

color with white sleeves. Within 20 minutes of the assault, an officer

who was canvassing the campus for a suspect stopped the defendant

because of his suspicious behavior and because he met the general

description of the assailant supplied by witnesses. Defendant had

fresh blood on his hands and spattered on his white tennis shoes.

Defendant gave the police permission to search his car and they

recovered a letterman’s jacket with fresh blood on the sleeves. Expert

testimony at the trial established that defendant’s fingerprint was on

the metal table leg used to bludgeon the victim and that traces of the

metal from the table leg had transferred to defendant’s hands. Expert

testimony also established that the blood on defendant’s tennis shoes

and jacket was the same type as that of the deceased victim but not

that of the defendant.

3The admission of the tape recording in question was either sought

to be suppressed or objected to on three separate occasions during the

more than a year the case was in the trial court and in each instance the

request was denied.

The first occasion was at defendant’s motion to suppress the tape

pursuant to Penal Code section 1538.5 before Judge P.R. Borton in

the Kern County Superior Court at the February 21 and 28, 1978,

hearing. The court denied the motion. This is the hearing which is

before this court on appeal.

The second occasion was when defense counsel renewed the

motion to suppress the tape before Judge Bruce A. Thompson, the

trial judge, following the change of venue to Ventura County. The

motion was submitted on the transcript of the February 1978 hearing

and was again denied.

The third occasion was following the trial when defense counsel

raised the issue again as one of his grounds supporting the defense

motion for a new trial. Judge Thompson denied the motion for a new

trial.

52

THE CASE

The central and controlling issue in this case is whether

or not the defendant’s tape recorded confession was

admissible as it was obtained after he requested that his

mother be present during the taping. The only evidence

that bears on this issue for purposes of appeal is the

testimony of one witness, Officer Singleton, who testified

at the hearing on defendant’s motion to suppress the tape

recording which was conducted on February 21, 1978, in

Bakersfield (Kern County). The defendant was present

and represented by counsel but did not testify.

The record shows that neither Officer Dennis Armour,

who apprehended the defendant in the quad area of the

Bakersfield College campus shortly after the murder, nor

Officer Robert Anthony Ennis, who transported defen-

dant to the Bakersfield police station and stayed with him

until the detective in charge arrived, questioned the

defendant about the facts of the offense. It was the

department policy that the detectives conduct all investi-

gations. Officer Singleton, a detective with 14 years

experience, who was assigned to the case conducted the

interview. Set out haec verba in footnote 4 below are the

portions of Officer Singleton’s testimony at the hearing on

‘Following is the relevant testimony of Officer Singleton at the

defendant’s motion to suppress the taped confession in question:

“(DIRECT EXAMINATION]

“[BY MR. McNUTT (deputy district attorney)]

“Q Prior to conducting an interview with the suspect, were you

aware of the fact he was under arrest?

“A Yes, sir.

“Q Was your interview with him relating to a possible homicide at

B.C.?

““A It was a homicide at that time.

33

the 1538.5 motion relevant to the issue before us. This

testimony appears in only 9 pages of the total of about

2,000 pages of reporter’s transcript comprising the com-

plete record on appeal.

(footnote continued from previous page)

“Q It had been confirmed as a homicide?

“A Yes, sir.

“Q Prior to conducting an interview with the defendant, did you

advise him of his constitutional rights per Miranda?

“A Yes, sir.

“Q And for that purpose, did you utilize any artificial devices?

“A I used a card provided by the Police Department.

“Q And do you have that same card with you here today?

“A Yes, sir.

“Q Would you recite on the record, please, exactly what you

related to Mr. Level on November 15th, prior to conducting your

interview with him?

“A Yes. ‘Number one, you have the right to remain silent’. And I

asked him if he understood what that meant. ‘Yes.’ ‘Two, anything

you say can and will be used against you in court’. And l asked himif

he understood those. And he stated he did. ‘Three, you have the right

to consult with a lawyer before answering any questions and havea

lawyer with you during any questioning’. And I asked him if he

understood that, and he said, ‘Yes.’ The fourth one, ‘If you cannot

afford a lawyer, one will be provided free of cost, if you want one’.

And I asked him if he understood that, and he said, ‘Yes’. And I

asked, ‘Having these rights in mind, do you want to go ahead and

make a statement to Detective Horton and myself regarding your

involvement, if any, in the assault?’, and he said he would.

“Q Did you indicate to him at that time that the victim had died?

“A Yes, sir.

“Q Was he advised of the fact he was under arrest as a suspect in

the killing of that victim?

“A Yes, sir.

“Q Was this Mirandazation on tape?

“A No, sir.

54

(footnote continued from previous page)

“Q Did you subsequently to giving him his rights and obtaining the

waiver, interview him regarding the possible homicide?

“A Yes, sir.

“Q And was that on tape?

**A No, sir.

“Q For what length of time did you conduct an interview with him

regarding the homicide?

‘*A It was approximately one hour.

“Q Subsequent to that interview, did you conduct another inter-

view?

“A Yes.

“Q Was that interview on tape?

“A Yes, sir.

“Q How soon after the first interview did the second interview take

place?

‘““A It commenced, I believe, at 11:40 p.m.

“Q On the same date?

“Q Yes, sir.

““Q Why the break between the first interview and the second

interview?

“A We initially got the initial statement from him, and then at one

point he requested to talk with his mother. And we allowed him to do

that; to make a phone call to his mother.

“Q Did he at any time indicate that he did not want to talk to you

any more or that he wanted an attorney?

“A No, sir.

“Q Did he in fact talk with his mother?

“Q Yes, sir.

“Q How soon after that was it you conducted the second interview

on tape?

‘A It was shortly after his conversation. We were waiting for her to

come down to the police station. Before he wanted to make the phone

55

(footnote continued from previous page)

call to his mother, I got the impression that he did want to make a

Staten.ent regarding the actual facts of the assault. But he was for

some reason or other, uneasy. And so we let him make the phone call

to his mother. And afterwards, we went back to the room, talked a

little longer, and I asked him if he would make a statement if it was

tape recorded; therefore, there could be no way that we could indicate

in the report other than what he stated to us.

“Q And who indicated that this second interview should be on

tape?

“A I asked if he would go ahead and make a statement without his

mother there, if we tape recorded it, and he indicated he would.

“Q Was he in effect asking that the second interview be taped?

“A Yes.

‘““MR. KING [deputy public defender]: Objection, your Honor, as

calling for a conclusion.

“THE COURT: Sustained.

“Q (By Mr. McNutt) Did he ask that the second interview be

taped?

“A I suggested it to him, and he said he wished it taped.

‘*‘MR. McNUTT: Your Honor, and Counsel, I don’t believe it’s

necessary for the purpose of the proceedings to go into the content of

the conversation. I will offer a stipulation that the officer would testify

to the content of the conversation as contained in the officer’s report

and the preliminary transcript, and the second interview was taped.

Unless Counsel for some reason wants to go into it at this time, that is.

I would also stipulated [sic] there is relevant, and material, and

possibly incriminating evidence contained in those statements.

““MR. KING: I think in this hearing, your Honor, that the record

should be complete. I am not prepared to stipulate at this time.

“THE COURT: All right, Mr. McNutt.

“MR. McNUTT: With the Court’s permission then, I will stop my

direct at this point. I simply wanted to establish the Miranda warning.

And Counsel can get as much as he wants in getting out testimony.

“THE COURT: All right.

56

(footnote continued from previous page)

“CROSS-EXAMINATION

“BY MR. KING:

“Q Mr. Singleton, prior to interviewing Mr. Level, did you have

any conversation with Mr. Ennis?

“A I believe I went into the lab twice — once when I got back to the

station from being out in the field, and I just briefly looked in the lab,

and observed Mr. Level and Mr. Ennis, and told them I would get to

them as soon as possible. And then after my interview with the

victim’s husband and two other individuals, I again went in, and told

them I would be just a few more minutes. But I had no direct

conversation with Mr. Ennis.

“Q Did you talk to Mr. Ennis regarding the search of the car?

‘**A I had no idea there was a car at the college.

“Q When did you first learn about a car being involved in this

case?

‘“‘A It was after one of the interviews — one of the three interviews

— I don’t know which one — I learned that they had found a jacket,

and that there was blood on the jacket.

“Q Do you know what time that was?

*“A No, I have no idea, sir.

“Q Was it before you talked to Mr. Level?

*“A Oh, yes, sir.

“Q And whom did you learn or obtain that information from?

“A I do not recall, but it was not from Mr. Ennis.

“Q Was it Mr. Foy?

““A I don’t belive I saw Mr. Foy that night.

“Q You were talking about three interviews? Who were the

subjects in those interviews?

‘**A The victim’s husband, Mr. Brown; Bill Pedeton; and a Kirk

Brown.

“Q And where did these interviews take place?

““A At the Police Department.

“Q And these were the possible witnesses to the offense?

57

(footnote continued from previous page)

‘‘A That is correct, sir.

“Q And when you interviewed them, you used a tape recording of

their conversation?

**‘A That is correct, sir.

“Q When you interviewed Mr. Level, you did not use a tape

recorder? Is that right?

‘‘A That is correct, sir.

“Q And where was the tape recorder at the time that you had

previously used for the three witnesses?

‘“‘A Either in my office or in the — I believe it was in my office.

“Q Was there anything defective with that tape recorder?

“A No, sir.

“Q Was there any particular reason that you did not use the tape

recorder when you talked to Mr. Level?

*“A Normally, it makes individuals very uneasy, and they won’t

talk, or they feel hesitant for some reason, and it intimidates them.

“Q You did not feel that was true, however, when you interviewed

the three witnesses?

‘**A No, because they are not suspects.

“Q Now, in the first statement that you obtained from Mr. Level,

did you indicate to you he wanted to phone his mother?

‘**A It was towards the end. That’s when we broke when he wanted

to place a phone call to his mother.

“Q And he told you that he did not want to talk to you until he had

talked to his mother?

“A It is not that he didn’t want to talk to me. He did not want to

make a statement regarding the actual facts of the assault without

talking to his mother.

“Q And you allowed him to make the phone call?

“A That is correct.

“Q Did you monitor that phone call?

“A No, sir.

58

(footnote continued from previous page)

“Q Did any officer, to your knowledge, monitor that phone call?

“A No, sir.

“Q How long did the phone call last?

‘“A Two or three minutes.

“Q And what time was it made?

**A Sometime between 11:10 and, I would say, maybe 11:15 or

11:20.

“Q And after the phone call, Mr. Level told you that he wanted to

have his mother present before he made any statement?

“A Yes, sir.

“Q And you did not stop questioning him?

“A No, sir. We were back in the interview room, waiting for her to

respond to the station, and we were just sitting there, talking. And I

SUGGESTED that he might not want to say something in her

presence. He might feel uncomfortable, but if we put it on tape, then

there would be no question as to what his statement was.

“Q Did you tell Mr. Level that if he wanted to make the taped

statement, that you would show it to his mother and let her listen to it

when she arrived?

‘**A I don’t recall saying that.

“Q Mr. Level’s statement to you was he wanted to have his

mother present WHEN he gave vou a statement?

“A That’s the impression I got, yes, sir.

“Q Did he say that?

“A I don’t recall.

“Q Do you recall testifying at the preliminary hearing?

“A Yes, sir.

“Q Do you recall being questioned that when Mrs. Level came

down to the station, he wanted to talk to her before he gave a

statement? Do you recall being asked that?

“A Yes.

“Q And do you recall answering, ‘He (indicating Mr. Level)

would like to have her present WHILE he was making the

statement’?

59

In defendant’s statement tape recorded of Officer Single-

ton which the defense sought to have suppressed and

which was admitted into evidence and played to the jury

during the trial, he said that he was at the Bakersfield

College campus looking for a friend named Mylo and

picked up a metal table leg which he found on campus; that

while he was using it to hit at a piece of paper and walking

toward the parking lot he saw the victim; that he started to

follow her and said: ‘“‘Hey. Do you have a few minutes?”’;

that his intention was to “‘get any information like her

(footnote continued from previous page)

“A Yes, sir.

“Q Did he tell you that?

‘*A I don’t recall if I was told or I just got that impression.

“Q Do you recall making the answers I have read to you?

“A No, sir.

“Q MR. KING: Your Honor, may I approach the witness with

the transcript of the preliminary hearing?

“THE COURT: Certainly.

“MR. KING: Page 1119, Line 25.

“THE WITNESS: He indicated he wanted to talk to her before he

gave a statement. That’s at Line 25?

“MR. KING: Line 27?

“A Yes, sir, that’s in the transcript.

“Q He indicated he wanted to have his mother present when he

gave you a statement?

“A Yes, sir.

“Q And then you suggested to him that he make a tape recording

instead of having his mother present?

**A That’s correct, sir.

“Q Did you ever indicate to him that his mother would be allowed

to listen to the tape recording?

‘**A I don’t think so.” (italics added.)

60

phone number of . . . ”’; and that the victim said: “I

don’t have any time for any niggers’’ and walked away.

The defendant stated that he “‘got mad as hell for what she

said” and hit her with the metal table leg using it “‘like a

bat’’; that when he tried to drag her away “‘the guy jumped

out from wherever he was, he came from somewhere and

ran towards me”’ so he dropped the victim and ran away;

that he went to his car and put his letterman’s jacket in the

trunk because he “‘didn’t want anybody to see the jacket”’;

and when he went back into campus looking for his friend

Mylo he was arrested by the police officer. When asked

what defendant did with the table leg, he said: “I just

dropped it, left it there.”” When asked toward the end of the

tape if “there [was] anything else that happened that we

haven’t asked you about?”’ the defendant answered, “‘Not

that I can think of.’’ At the end of the tape the defendant

apparently confirmed that he was read his rights and that

he was not promised or threatened in any way and that he

gave his statement freely and voluntarily.

The trial court denied defendant’s motion to suppress the

above taped confession and it was admitted into evidence.

5 Also admitted into evidence and played to the jury was another tape

recording of statements made by the defendant to some visitors while

he was in custody which defendant did not know was being recorded.

In this statement defendant told his visitors that when he was on

campus trying to find his friend Mylo was when he “saw this white

bitch”; that he said to her, ‘Hey, you got a few minutes?’’; that she

turned, looked at him and said: ‘‘I don’t have time for no niggers” and

kept on walking; that he thought about it for a few minutes and said to

himself “‘I’m — I’m gonna go after that bitch, why she say that, you

know’’; that he caught up with her in the parking lot and said to her,

“Hey, why did you — why did you say that to me?”’; that the “bitch”

turned kind of sideways and said: “‘Cause all niggers are dirty and

they ain’t worth a damn. If you don’t get your black ass away from me,

I'll blow your head off’; that “‘the bitch went into her purse, man. She

was gonna bend to go in her purse, andI ran up on the bitch and hit her,

man, with — with the thing I had’’; that after she fell to the ground he

61

DISCUSSION

‘“*A proceeding under section 1538.5 to suppress evi-

dence is a full hearing on the issues before the superior

court sitting as finder of fact. (People v. Superior Court

(Peck) 10 Cal. 3d 645, 649 [ . . . ]; People v. West

(1970) 3 Cal. 3d595,602[. . . |.) The power to judge

credibility of witnesses, resolve conflicts in testimony,

weigh evidence and draw factual inferences, is vested in

the trial court. On appeal all presumptions favor proper

exercise of that power, and the trial court’s findings —

whether express or implied — must be upheld if sup-

ported by substantial evidence. (People v. Gale (1973) 9

Cal. 3d 788, 792[. . . }; People v. Lawler(1973) 9 Cal.

3d 156, 160 [ . . . ].) ” (People v. Superior Court

(Keithley) (1975) 13 Cal. 3d 406, 410, italics added.)

(footnote continued from previous page)

tried to drag “‘her away from out in the open”’ so he could see what was

wrong with her because he “‘just figured she was out cold”’; that in

dragging her he got blood on his hands, white tennis shoes and jacket;

and that her husband who was waiting for her jumped out of his car

and ran toward him hollering “‘you sonofoabitch” and he ran off

“trying to get away.” When asked by one of the visitors if he was going

to plead guilty, he said: ‘“‘Hell no” and “‘[hjope that I can get maybe,

uh, manslaughter or hopefully a self defense case, man.” He later

indicated that his “‘mother fucking mistake — big mistake — was

talking to the police.”

At the trial the defendant testified substantially in accordance with

what he told his visitors as noted above absent the street vernacular.

In addition he told the jury that within the hour before he arrived on

campus he had consumed a quarter of a pint of 151 proof Bacardi rum

with Coca Cola and he and a friend between them smoked “‘two joints

of angel dust” and that he then smoked another joint of marijuana; that

just before he struck the victim with the metal table leg he “‘saw her

hand reach toward her purse”’ and “‘saw something in her hand, some

shiny object”; and that he intended to hit her in the back but “‘because

she ducked” he hit her in the head.

62

In accordance with and in harmony with the foregoing

test on review requiring that we view the evidence in a light

most favorable to the trial court’s ruling, I would hold that

if Officer Singleton’s testimony, set forth in footnote 4,

ante, considered in its complete context can be reasonably

construed and interpreted by the trial court in a fashion to

support its finding that Officer Singleton did not in fact

violate the defendant’s Miranda rights, its ruling must be

upheld. My independent analysis of Officer Singleton’s

testimony and the “factual inferences” to be drawn

therefrom leads me to the conclusion that defendant’s

Miranda rights were not violated. My reasoning follows:

At the outset it is important to point out what this case is

not. It is not one in which a minor has requested a parent.

In People v. Burton (1971) 6 Cal. 3d 375, the Supreme

Court reversed a first degree murder conviction because a

confession was made after the defendant, a 16-year-old,

requested to see his parents and his request was flatly

refused. The court said at page 382; “For minors, it would

seem that the desire for help naturally manifests in a

request for parents. It would certainly severely restrict the

‘protective devices’ required by Miranda in cases where

the suspects are minors if the only call for help which is to

be deemed an invocation of the privilege is the call for an

attorney.”’ In the instant case the evidence is uncontra-

dicted that the defendant was not a minor but was an adult

having reached his majority, being 19 years old at the time

of the murder. He had shed the protective cocoon the law

affords to minors and assumed the responsibilities and

obligations of an adult.

Nor does the instant case involve the procedures to be

followed if the person in custody asks to consult with a

lawyer, since the record is clear that defendant made no

such request at any time. The Miranda court distin-

63

guished between the procedural safeguards triggered by a

request to remain silent and a request for an attorney by

directing that “the interrogation must cease until an

attorney is present” only “‘[i]f the individual states that he

wants an attorney.” (384 U.S. at p. 474.)

The key issue in the instant case therefore narrows

down to the question as to whether or not there was

violation of that portion of the Miranda decision pertain-

ing to the procedural safeguards set in motion once a

defendant expresses the desire to remain silent. The

Miranda court said at pages 473-474; ‘Once warnings

have been given, the subsequent procedure is clear. If the

individual indicates in any manner, at any time prior to or

during questioning, that he wishes to remain silent, the

interrogation must cease. . . . ”’ But the court also said

at page 444: “[By] custodial interrogation, we mean

questioning initiated by law enforcement officers after a

person has been taken into custody or otherwise deprived

of his freedom of action in any significant way.” (Italics

added; see also People v. Fioritto (1968) 68 Cal. 2d 714,

718.)

In the case at bench a fair interpretation of Officer

Singleton’s testimony considered as a whole (see fn. 4,

ante) shows that this adult defendant waived his Miranda

rights and during the following interview which was not

tape recorded requested and was allowed permission to

call his mother. He then requested that his mother be

present when the interview continued. While they were in

recess awaiting the mother, Officer Singleton did not in

fact continue QUESTIONING the defendant about the crime

for which he was arrested. The majority opinion ap-

parently places great emphasis on the two word answer of

Officer Singleton when he said ‘“‘No, sir’ when asked if he

had stopped questioning the defendant while waiting for

defendant’s mother. A careful reading of the balance of the

64

answer (see fn. 4, ante, p. 9) shows that in fact they “were

just sitting there, talking,” and that the officer’s statements

pertained only to the MANNER in which the interview could

be completed. The officer merely SUGGESTED that if the

defendant’s statement might prove embarrassing to him in

the presence of his mother it could be tape recorded which

would eliminate any doubt as to the accuracy of his

statement at a later time. The defendant of his own free

will decided to complete the interview in that manner

without his mother present.

In my opinion the foregoing does not constitute a

Miranda violation. At no time after waiving his Miranda

rights did defendant say he wished to remain silent.

Furthermore, there was no rubber hose, no hobnailed

boot, no threats, no promises, no coercion, and no

compulsion, subtle or otherwise, which overcame the

defendant’s free choice to make a statement which he

indicated he would do anyway after his mother arrived. To

hold that Miranda applies to the facts of this case would

extend the Miranda safeguards to absurd limits and place

wholly irrational obstacles to legitimate police investigate

activity. It would also result in depriving a defendant of an

opportunity to make an informed and intelligent assess-

ment of his interests and thus “imprison [him] in his

privileges” (Adams v. United States ex rel. McCann

(1942) 317 U.S. 269, 280) and completely disregard”

‘that respect for the individual which is the lifeblood of the

law.’”’ (Faretta v. California (1975) 422 U.S. 806, 834.)

The majority opinion cites as authority Miranda's

California progeny, namely the California Supreme Court

cases of People v. Fioritto, supra, 68 Cal. 2d 714; People

v. Ireland (1969) 70 Cal. 2d 522; People v. Randall

(1971) 1 Cal. 3d 948; People v. Burton, supra, 6 Cal. 3d

375; People v. Carr (1972) 8 Cal. 3d 287; People v.

65

Superior Court (Keithley), supra, 13 Cal. 3d 406; People

v. Superior Court (Zolnay) (1975) 15 Cal. 3d 729;

People v. Disbrow (1976) 16 Cal. 3d 101; People v.

Enriquez (1977) 19 Cal. 3d 221; People v. McClary

(1977) 20 Cal. 3d 218; and People v. Pettingill (1978) 21

Cal. 3d 231; and the appellate court cases of People v.

Marshall (1974) 41 Cal. App.3d 129; People v. Parker

(1975) 45 Cal. App.3d 24; and People v. Munoz (1978)

83 Cal. App.3d 993.

In no way do the hard factual circumstances of the

above cases remotely square with the unique factual

circumstances of the case at bench. The factual distinc-

tions in the California cases cited in the majority opinion

from those of the instant case are glaring.

In the case at bench the defendant after he was initially

given the Miranda warning acknowledged he understood

his rights and agreed to speak and did not ask for an

attorney and at no time vocally or otherwise reasserted his

Miranda rights. In Ireland, Randall, Zolnay, Disbrow,

and McClary after the giving of the initial Miranda

warning the defendants in each case asked for an attorney

and in Fioritto, Keithley, Disbrow and Pettingill the

defendants stated they wished to remain silent. In Jreland,

Randall, Keithley and Pettingill the defendants were

confronted with the repeated giving of the Miranda until

agreed to talk after first asserting those rights. Here, also

unlike in Fioritto, where the defendant was confronted by

accomplices who had already confessed after the defen-

dant had refused to speak, the defendant herein before the

interview started by Officer Singleton knew that the police

saw the fresh blood on his hands and tennis shoes; and that

he had previously voluntarily consented to have the

officers search his car where he had placed the letterman’s

jacket with fresh blood on its sleeves and was advised that

66

the female he had clubbed with the metal table leg had

died. Here, at no time including during the recess did the

defendant reassert his Miranda rights and ask for an

attorney as in Enriquez. Here, at no time was the

defendant pressured or threatened as in Zolnay and

McClary nor was he given false assurances that his

statement would not be used in court as in Disbrow. Here,

the defendant was a 19-year-old adult who merely asked

that his mother be present during questioning, which

request was neve: refused, unlike Burton where the

defendant was a 16-year-old minor who asked for his

father but whose request was denied.

The Pettingill case ® involved nearly identical circum-

stances as were present in the United States Supreme

6In People v. Pettingill, supra, 21 Cal.3d 231, the defendant pleaded

guilty to two counts of burglary after the trial court denied his motion

to suppress evidence of his confession, together with certain physical

evidence found in a search to which he had consented in the course of

the confession. The record indicated that the arresting police officer

had read defendant his constitutional rights at the scene of the arrest,

had asked defendant if he wanted to talk to him to which defendant

responded in the negative so he was aske«’ no nore questions at that

time. Two hours later at the police station, the same police officer

again advised defendant of his constitutional rights, asked him if he

wished to talk to him about the burglary for which he had been

arrested, and again defendant declined after which the officer had no

further discussion with him. More than 60 hours later a police

detective from another county and city questioned defendant about

four unrelated burglaries in the other county. The questioning took

place at a location different from the location of the prior questioning,

and the police detective gave defendant his full and complete warnings

as to his constitutional rights before he was questioned. It was during

this interrogation that defendant waived his privilege against self-

incrimination and confessed to the four burglaries. The detective did

not resume interrogation about the burglary for which defendant had

been arrested. The state Supreme Court reversed, holding that

defendant’s confession was inadmissible under the privilege against

self-incrimination.

67

Court case of Michigan v. Mosley (1975) 423 U.S. 96.’

The majority in Pettingill (Clark and Richardson, JJ.,

dis.) employed its “independent state grounds”’ doctrine

and declined to follow the United States Supreme Court

decision in Mosley pertaining to Miranda rights. In so

doing the Pettingill court described the sequence of

events which have typically arisen since Miranda. The

Pettingill court said at page 238: “Of course, because no

warnings of any kind were given in Miranda, the decision

did not actually adjudicate the precise issue now before us.

That issue, which has often been presented to the courts

since Miranda, typically arises from the following se-

quence of events: the police give the suspect the Miranda

warnings and seek to question him, but he successfully

invokes his right to remain silent; rather than promptly

release or arraign him, however, the police continue to

hold him in custody; thereafter the police again give him

the Miranda warnings and renew the interrogation, and

this time he confesses. There are variations on this

theme: there may be more than two attempts at interroga-

tion; the interval between interrogations may be long or

short; at the start of the second or subsequent interrogation

the police may or may not confront the suspect with

7In Mosley the defendant had been arrested in connection with certain

robberies and a detective gave him the Miranda warnings. Defendant

declined to discuss the robberies, whereupon thie detective ceased the

interrogation. More than two hours later, after giving Miranda

warnings, another detective questioned defendant solely about an

unrelated murder. Defendant made an inculpatory statement, which

was later used in his trial for murder, which resulted in his conviction.

The appellate court reversed on the ground that Miranda mandated a

cessation of all interrogation after defendant had declined to answer

the first detective’s questions. The United States Supreme Court held

that the admission in evidence of defendant’s incriminating statement

did not violate Miranda principles.

68

additional evidence or statements of his accomplices; and

the later questioning may be conducted by a different

police officer, in a differenct location, and deal with a

different crime. Nevertheless, in a long line of decisions

this court has consistently held that a statement taken from

the suspect in any of these circumstances is inadmissible

because in violation of the principles of Miranda and the

privilege against self-incrimination of the California Con-

stitution.”

Clearly the case at bench does not fit the mold of either

the fact of the Pettingill case or the circumstances of the

typical cases or the variation thereof described above in

Pettingill in which the Miranda issue arises.

Nor does the instant case fit the mold of the appellate

court cases of People v. Marshall, supra, 41 Cal. App.3d

129; People v. Parker, supra, 45 Cal. App.3d 24; and

People v. Munoz, supra, 83 Cal. App.3d 993; cited in the

majority opinion.

In Marshall (in which I particiated and concurred)

during the course of questioning of a 17-year-old youth

regarding the murder of his stepfather, the officer asked if

he wanted “‘to go over the parts [he] left out?” and the

defendant answered “‘no”’ twice and a third time said, “I

just don’t want to.”” We held that the answers amounted to

a clear invocation of his Fifth Amendment privilege to

remain silent foreclosing further interrogation. In the

instant case the defendant made no such statements. To

the contrary the testimony of Officer Singleton shows that

the defendant who had previously waived his Miranda

rights intended to complete the interview but wanted his

mother present. During the recess the officer merely

suggested some alternative in the manner of proceeding to

which the defendant freely and voluntarily agreed without

any compulsion whatsoever.

69

In Parker the defendant’s conviction of first degree

murder which occurred in the course of an attempted bank

robbery in Los Angeles, California, was reversed. Defen-

dant Parker was arrested in Denver, Colorado, and the

Denver police read his Miranda rights from a printed form

but rather than consenting to the waiver defendant wrote

on the form in the space designated for his signature “‘ You

are in as much of the dark as I am. I'll just wait.” Three

days later Los Angeles Police Department officers went to

Denver and read him his rights again, but defendant said

he wanted to talk to ““somebody.”’ He then said the

““somebody”’ was a prison doctor or a psychiatrist. The

chief psychologist at the Denver County Jail interviewed

the defendant. He noted that the defendant was “‘appar-

ently under pressure, stress, and that’s why he wanted to

talk matters over with a psychologist or a minister and that

he could not decide whether he would make a confession

to the detectives or not.”’ Following the interview the jail

house psychologist told the police that he had “this boy

ready to make his confession.”’ The detectives without

repeating the Miranda warning asked defendant if he

wanted to discuss his role in the “‘attempted robbery and

murder” and he said he would. In the case at bench the

defendant never requested a psychiatrist or a minister nor

was he interviewed by a jail house psychologist to soften

him up. Here, defendant merely wanted his mother

present when the interview continued after having first

waived his Miranda rights and the officer merely suggest-

ed an alternative mode of proceeding to which defendant

freely agreed.

The Munoz case involved a request for an attorney. The

reviewing court held that the defendant’s statement “Well,

maybe I should talk to my attorney”’ although “ambiguous

[could] be construed as an invocation of his right to speak

70

to an attorney before questioning. When Narramore [the

detective] told Munoz he wanted to tell him what informa-

tion he had, he avoided dealing with Munoz’s request. His

action served to ‘soften’ up Munoz, as he must have

intended it to, thus subverting Munoz’s not too forcefully

expressed wish to see his named attorney.”’ (83 Cal.

App.3d at p. 996.) In the case at bench it is uncontradicted

that defendant Level never requested an attorney and that

he had already been advised of the salient facts known by

Officer Singleton as previously listed herein prior to the

recess.

In the case of People v. Carr, supra, 8 Cal.3d 287, cited

as authority in the majority opinion, a jury found defen-

dant guilty of the first degree murder of an elderly man and

fixed the penalty at death. Defendant relied on the defense

of diminished capacity, having stated in confessions made

to a police officer that if he had not been smoking pot

before the crime he probably couldn’t have gotten the guts

to do it. Defendant did not take the stand at trial and there

was no other evidence of diminished capacity. The trial

court refused to instruct as to second degree murder and

voluntary manslaughter on the ground of diminished

capacity, and told the jury that it could only acquit

defendant or find him guilty of first degree murder. In his

confessions defendant had admitted taking the decedent’s

wallet containing a substantial sum of money as well as a

radio and a rifle and the jury was instructed, among other

matters, on murder committed in the perpetration of or

attempt to perpetrate robbery.

On defendant’s automatic appeal, the Supreme Court in

Carr modified the judgment so as to provide for life

imprisonment rather than death and as so modified

affirmed it in all other respects. No merit was found in

defendant’s contentions that he had not effectively waived

71

his rights to counsel and to remain silent before confes-

sing, that he had later reasserted those rights, and that he

had been induced to confess by the interrogating officer’s

promise of leniency.

The Carr court addressed the defendant’s contention

that toward the end of his taped interview the officer asked

him “* Would you like to quit now, Mr. Carr?”’ to which the

defendant replied affirmatively. The officer then asked a

few more questions: specifically, he asked whether the

defendant had anything to add to the interview, or on his

own behalf, if he understood or had any doubt that he

would be charged with first degree murder, whether he had

been treated well or threatened, and whether he had been

given cigarettes when he wanted them. The defendant’s

answers were either “‘yes” or “‘no.’’ The court said that the

evidence that defendant was reasserting his Miranda

rights was highly “‘equivocal.’’ The court took into

account “‘the circumstances surrounding the alleged re-

quest to discontinue questioning” and took note of his

statements at the end of the interview.

Taking into account the entire circumstances surround-

ing the case at bench and a reading of Officer Singleton’s

testimony at the motion to suppress hearing (see fn. 4,

ante), in its entirety, as the court did in Carr, I cannot say

as a matter of law that the defendant’s Miranda rights

were violated for the reasons hereinbefore stated. Of

Significance here, as in Carr, was the fact that at the

conclusion of the defendant’s taped statement it appears

that the defendant confirmed that no promises or threats

were used to obtain his statement, and that he talked freely

and voluntarily. Thus, the instant record indicates that the

defendant never intended to reassert his Miranda rights at

the time of the interview by requesting that his mother be

present when the interview continued nor was he subject-

ed to any compulsion in completing the interview.

—

bir

Here, the defendant was afforded counsel at public

expense. His attorney after making the panoply of motions

in Kern County obtained an order from the Court of

Appeal in the Fifth District transferring the case from

Kern County to Ventura County for trial. During the

protracted, hotly contested 17-day jury trial in Ventura

County, approximately 30 witnesses were transported

from the Bakersfield area to Ventura to testify and 73

exhibits were placed into evidence. The record on appeal

in addition to a voluminous clerk’s transcript contains 1 1

volumes of reporter’s transcript consisting of about 2,000

pages of testimony. The jury was fully and fairly instructed

on the law including the requisite elements to establish

murder in the first degree and the lesser included offenses

of murder in the second degree and voluntary and

involuntary manslaughter. The jury was also properly

instructed on the law of justifiable homicide and self-

defense and was given the diminished capacity instruc-

tions.

In my view the defendant was fairly tried and justly

convicted.

I would affirm the judgment of conviction.’

HANSON, J.

8 Recognizing that reasonable minds may differ as to the interpretation

of evidence and inferences to be drawn therefrom, as well as

construing decisional law, I feel compelled to make the following

comments and observations.

In my view this case is a classic example of how Miranda has been

a contributing factor to the bankruptcy of California’s criminal justice

system. It is generally accepted that an efficient and viable system of

criminal justice should prove for the expeditious handling of criminal

prosecutions and the penalty meted out to a person convicted of a

crime should be designed not only to serve as punishment but to serve

as an example in order to deter future criminal activity by the

73

(footnote continued from previous page)

defendant and others. Sound management principles also dictate that

the system should be operated as economically as possible while

insuring every defendant a “‘fair,” not a “perfect,’* trial under the

law. This case shows that California’s criminal justice system has

failed to meet every one of the above enumerated ingredients

considered basic to a viable criminal justice system.

QUERY: Does California’s criminal justice system process its

criminal cases expeditiously? Here, the murder of Mrs. Brown on

November 15, 1/977, was probably conceived and executed well

within a five-minute time span. How much evidence can be brought to

bear on what happened during that five minutes? Yet under Califor-

nia’s system of justice it took over one year (423 days) for the matter

to run its course through the trial courts. It took another year to

proceed through this stage of the appellate process. Now due to the

reversal the matter must go back to the trial court for the process to

start all over again and put the husband and witnesses through another

trial. The defendant could well be out of prison on parole before this

matter is finally disposed of by the courts.

QUERY: Did the penalty fit the crime? Does California’s criminal

justice system afford an adequate deterrent to such criminal activity?

Here, the defendant was sentenced to six years in prison for the

second degree murder and an additional one year for the use of a

deadly weapon during the commission of the murder. He was given

435 days credit (as provided by law) for the time he was in local

custody prior to sentencing and if he behaves himself in prison will

probably have his total sentence of 7 years reduced by 1/3. Therefore,

his total penalty may consist of less than five years in custody. He

deprived Mrs. Brown (age 24) not only of all of her constitutional

rights without benefit of trial by jury, but snuffed out over 50 years of

her normal life expectancy and denied her husband and family her

love and affection.

*It is clear that a defendant is only entitled to a “fair’’ trial, not a

“perfect” trial. Nevertheless high courts in their quest for the “Holy

Grail” of “perfect’’ justice have paved the street down which the trial

judge must walk with procedural safeguards like cobble stones. If the

trial judge stubs his toe on one cobble stone, the whole case must often

be retried.

74

(footnote continued from previous page)

QUERY: Does California’s criminal justice system process its

cases economically? | estimate that the instant case cost Kern County

taxpayers and state taxpayers well over a total of $100,000 to process

taking into consideration the public funds expended for the lawyers

handling the People’s case (deputy district attorney at trial and deputy

attorney general on appeal) and defendant’s court-appointed lawyers

(trial counsel and separate appellate counsel); the use of the courts

and all the court attaches during the protracted trial; the jurors;

transporting about 30 witnesses from Kern County to Ventura

County; and the cost of the record on appeal including about 2,000

pages of the reporter’s transcript. Now on reversal the taxpayers are

faced with the possibility of expending an additional $100,000 if the

next time around the case takes its same course.

It must be obvious to everyone that California’s criminal justice

system is slow, ponderous and wasteful of public funds. Unless the

purpose of the system is to continue to build a judicial bureaucracy

and afford full employment for lawyers pouring out of our law schools,

it should be crystal clear that it would be in the best interest of the

public to overhaul our criminal justice system. But no one appears to

be in charge and the various governmental agencies appear to be at

cross purposes and tend to knock each other out while bending to the

will of outspoken special interest groups. However, it is clear to me

that instead of conducting business as usual someone in authority on

the state level should take the initiative and call a summit conference

with all of the branches of government und those elements of

government involved in the criminal justice system to dissect and

analyze the anatomy of the entire system and thrash out a comprehen-

sive plan which results in a streamlined and integrated system of

justice, more expeditious, more economical and more responsive to

the needs of California’s citizens.**

**A must reading for all who would attend such a summit

conference should be the book of Justice Macklin Fleming of the

Second District entitled ‘‘The Price of Perfect Justice — The Adverse

Consequences of Current Legal Doctrine on the American Court-

room” (Basic Books, Inc. 1974). Following is an extract from a

chapter of that book entitled ““The Ideal of Perfectibility”’:

“The fuel that powers the modern theoretical legal engine is the

ideal of perfectibility — the concept that with the expenditure of

sufficient time, patience, energy, and money it is possible eventually

75

(footnote continued from previous page)

to achieve perfect justice in all legal process. For the past twenty years

this ideal has dominated legal thought, and the ideal has been widely

translated into legal action. Yet a look at almost any specific area of

the judicial process will disclose that the noble ideal has consistently

spawned results that can only be described as pandemoniac. For

example, in criminal prosecutions we find as long as five months spent

in the selection of a jury; the same murder charge tried five different

times; the same issues of search and seizure reviewed over and over

- again, conceivably as many as twenty-six different times; prosecu-

tions pending a decade or more; accusations routinely sidestepped by

an accused who makes the legal machinery the target instead of his

own conduct.

‘*“Why, we ask ourselves, have such diligent attempts to create a

perfect legal order fared so poorly in practice? If a physicist or

engineer or musician or cabinetmaker seeks perfection in his work, he

may not achieve it, but in making the effort he will elevate his

standards and improve the quality of his performance. Should not the

same hold true in the operation of a legal order?

“The answer, perhaps, may be found in the reason given by

Macaulay for the failure of ambitious governments; the government

that attempts more than it ought ends up doing less than it should. The

contradiction of more producing less in the quest for perfection

derives from the nature of perfection as complete conformity to an

absolute standard of excellence. Perfection itself carries little mean-

ing until we ask the question —- perfection for what? And in pondering

the answer we come to realize that perfection implies limitation and

selectivity, that the ideal of perfection implies movement in a limited

and selective direction. The law cannot be both infinitely just and

infinitely merciful; nor can it achieve both perfect form and perfect

substance. These limitations were well understood in the past. But

today’s dominant legal theorists, impatient with selective goals, with

limited objectives, and with human fallibility, have embarked on a

quest for perfection in all aspects of the social order, and, in particular,

perfection in legal procedure.

‘“*What happens to criminal procedure when we begin to think in

terms of absolutes, in terms of perfect procedure? Perfect procedure

requires a perfect tribunal, which in turn demands perfection in court

and counsel. Therefore, every criminal cause must be prosecuted by a

Thomas Dewey, defended by a James Otis, and tried before a John

Marshall. The jury must never have heard of the cause, the parties, the

76

(footnote continued from previous page)

witnesses, and the issues, and must be wholly free from opinions or

preconceptions about any proposition of law or fact likely to arise in

the trial. The parties must be free to present their contentions to the

fullest extent and to best advantage. Each legal and factual contention

of possible relevancy must be explored in depth, both exhaustively

and repetitively, in order to eliminate the possibility of error from the

proceeding. If the trial does not satisfy each of these requirements,

then the cause must be tried again.

“The quest for perfection in procedure is comparable to the

experience of aman who blows up an inner tube and tries to stuff it into

a tire too small for the tube. Just as he gets one side in place, out pops

the other. In our pursuit of the will-o’-the-wisp of perfectibility, we

necessarily neglect other elements of an effective procedure, notably

the resolution of controversies within a reasonable time, at a

reasonable cost, with reasonable uniformity, and under settled rules

of law.

‘*And here we confirm Macaulay’s observation that a system which

attempts too much achieves too little. For when we aim at perfect

procedure, we impair the capacity of the legal order to achieve the

basic values for which it was created, that is, to settle disputes

promptly and peaceably, to restrain the strong, to protect the weak,

and to conform the conduct of all to settled rules of law. If criminal

procedure is unable promptly to convict the guilty and promptly to

acquit the innocent of the specific accusations against them, and to do

it in a manner that retains public confidence in the accuracy of its

results, the deterrent effect of swift and certain punishment is lost, the

feeling of just retribution disappears, and belief in the efficacy of the

system of justice declines. An overload of court machinery with

retrials, rehearings, and collateral proceedings gives us an unwork-

able system unable to function, like the ostrich that has wings but can’t

fly, or like the beautiful mockup of the SST that never got off the

ground.

“The ideal of perfectibility denies the existence of price and cost,

and, at least in criminal procedure, relies heavily on the argument that

no sacrifice is too great when human life or liberty is involved. Better

that a hundred guilty men should go free than that one innocent man

be convicted, is the rallying cry of the perfectionists. But this slogan

gets us no further than does its obverse — better that one life should be

sacrificed than a hundred others may be saved. The plain fact of the

matter is that in human affairs we balance the cost of human life

77

(footnote continued from previous page)

against other considerations in almost everything we do, and it is

incorrect to say that the sacrifice of human life to attain particular

ends is never justified. The real question is one of relative values — is

the end in view worth the price it is likely to cost?

But, the perfectionist argue, no sacrifice is too great to assure that

in a given case perfect justice will be done. Ignored is the sacrifice of

the legal order itself and of the life, liberty, and property of those that

the legal order is designated to protect. Ignored also is the necessity

that the procedure we follow lend substance to the moral and ethical

idea that those who take up the sword shall perish by the sword.

‘Each time the criminal process is thwarted by a technicality that

does not bear on the innocence or guilt of the accused, we trumpet

abroad the notion of injustice; and each time a patently guilty person is

released, some damage is done to the general sense of justice. Most

unfortunate, the perfectionists reply, but we must strive for perfect

procedure no matter what the consequences. Repeated enough times

the slogan gaingg@rrency and becomes dogma. In this way the ideal of

justice is traffformed into an ideal of correct procedure.

**What has occurred during the past twenty years is that the legal

theorists in their zeal for perfection in procedure have become

prisoners of their own concepts, and in their preoccupation with

techniques they have lost sight of the ultimate objectives of a legal

system. This Holy Grail of perfectibility has been sought before, and

with equally disastrous results. Gibbon tells us that under Roman law

at the time of Justinian the expense of the pursuit of law sometimes

exceeded the value of the prize, and the fairest rights were abandoned

by the poverty or prudence of the claimants. Holdsworth tells us that

in nineteenth century England the equity rules aimed at doing

complete justice regardless of any other consideration. In describing

the collapse of the system he said: ‘But we have seen that the delays

need not have been so great if the ideal of completeness had not been

so high. By aiming at perfection the equity procedure precluded itself

from attaining the more possible, if more mundane, ideal of substan-

tial justice.” ~

™ Appendix B

In the Court of Appeal

State of California —

DIVISION ONE

PEOPLE OF THE STATE OF CALIORNIA,

Plaintiff and Respondent,

v.

WILLIE EDWARD LEVEL,

Defendant and Appellant.

2d Crim. No. 34398 ne

COURT OF APPEAL- SECOND DI

FILED

MAR. 26, 1980

CLAY ROBBINS. Jr. Clerk

—

ee

Deputy C lerk

Our opinion pointed out that Miranda v. Arizona

(1966) 384 U.S. 436, 473-474, demands that once

Miranda warnings have been given, if an arrestee in a

custodial setting “indicates in any manner, at any time

prior to or during questioning, that he wishes to remain

silent, the interrogation must cease;”’ that the defendant in

this case said that he wanted his mother present before

making any statement; and that by doing so, he invoked his

right to have the questioning then going on, cease. The

decisions of the Supreme Court of the United States and of

this state permit no other result.

19

In light of the Petition for Rehearing filed by respon-

dent, we add the following, equally established: an adult

has no right to demand that a parent (or anyone else, other

than a lawyer) be present during questioning (cf. People v.

Burton (1971) 6 Cal. 3d 375. 383-384; Fare v. Michael

C. C2979) _.. U.S. ), but he does have a right to

“indicate in any manner. . . that he wishes to remain

silent.”” That is what defendant did. His doing so required

that the questioning cease.

The petition for r ing is denied.

e petition for rehearing is denied LILLIE

EPSTEIN*

I would grant the petition for rehearing.

HANSON

*Assigned by the Chairperson of the Judicial Council.

80

Appendix C

Order Due

May 28, 1980

ORDER DENYING HEARING

AFTER JUDGMENT BY THE COURT OF APPEAL

2d District, Division 1, Crim. No. 34398

IN THE SUPREME COURT OF THE STATE OF

CALIFORNIA

IN BANK

PEOPLE

v.

LEVEL

Respondent’s petition for hearing DENIED.

I., G.E. BISHEL, Clerk of the Supreme Court of the State of

California, do hereby certify that the preceding is a true copy of

an order of this Court, as shown by the records of my office.

Witness my hand and the seal of the Court this

day of May 5, 1980 A.D 19

By

Deputy Clerk

Chief Justice

SUPREME COURT

FILED

APR 30 1980

G. E. BISHEL, Clerk

Appendix D 81

In the Court of Appeal

State of California

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,

v.

WILLIE EDWARD LEVEL,

Defendant and Appellant.

2nd Criminal 34398

(Superior Court No. CR14108)

Ventura Co.

MINUTE ORDER

THE COURT:

APPLICATION FOR STAY OF ISSUANCE OF REMITTI-

TUR AND FOR ORDER DEFERRING EXECUTION AND

ENFORCEMENT OF JUDGMENT AND ORDER IS

GRANTED.

DATED: MAY 13, 1980

CLAY ROBBINS, JR., Clerk of the Court of Appeal, Second

Appellate District, State of California, do hereby certify that the

preceding is a true and correct copy of the order of this Court, as

shown by the record of my office.

Witness my hand and the seal of this Court this 13 day of May

A.D. 1980.

CLAY ROBBINS, JR., Clerk.

By COURT OF APPEAL-SECOND DIST.

Deputy Clerk FILED

MAY 13 1980

CLAY ROBBINS, JR., Clerk

Deputy Clerk

82

PROOF OF SERVICE BY MAIL

State of California

SS.

County of Los Angeles

I, the undersigned, say: I am and was at all times herein

mentioned, a citizen of the United States and a resident of

the County of Los Angeles, over the age of eighteen (18)

years and not a party to the within action or proceeding;

that my business address is 3340 Ocean Park Boulevard,

Suite 3005, Santa Monica, California 90405: that on

May 29, 1980, I served the within Petition for Writ of

Certiorari in said action or proceeding by depositing true

copies thereof, enclosed in a sealed envelope with postage

thereon fully prepaid, in the United States mail at Santa

Monica, California, addressed as follows:

Clerk, U.S. Supreme Court Clerk, Ventura County Superior

One First Street, N.W. Court for the Hon. Bruce Thompson

Washington, D.C. 20543 501 Poli Street

(Hand Delivered; forty copies) Ventura, California 93001

Clerk, California Supreme Court Carolyn Froeberg, Esq.

3580 Wilshire Boulevard 330 Washington Street

Second Floor Marina del Rey, California 90291

Los Angeles, California 90010 Willie Edward Level, C-01113

Clerk, California Court of Appeal, P.O. Box 441

Second Appellate District Chino, California 91710

3580 Wilshire Boulevard

Third Floor

Los Angeles, California 90010

I declare under penalty of perjury that the foregoing is

true and correct. Executed on May 29, 1980 at Santa

Monica, California.

Suzanne Newman

(Original signed)