Petition — California v. Braeseke

. os

80-664 |. rrers

No. OCT 22 1980

MICHAEL RODAK, JR., CLERK

In the Supreme Court

OF THE

United States

Octoser TERM, 1980

THE PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

VS.

Barry FLoyp BrakseEkgE,

Respondent.

Petition for a Writ of Certiorari to the

Supreme Court of California

GrorGE DEUKMEJIAN

Attorney General of the State of

California

Rosert H. PHiirosian

Chief Assistant Attorney General

—Criminal Division

Epwarp P. O’Brien

Assistant Attorney General

DerALD E. GRANBERG

Deputy Attorney General

MicHakEt D. WHELAN

Counsel of Record

Deputy Attomey General

6000 State Building

San Francisco, CA 94102

Telephone: (415) 557-1243

Attorneys for Petitioner

BOWNE-PERNAU WALSH °* 1045 SANSOME ST. ¢ S.F., CA 94111 © (4185) 981-7862

QUESTIONS PRESENTED

1. Whether a request to speak “off the record,” made

by a suspect who has been fully advised pursuant to

Miranda v. Arizona, 384 U.S. 436 (1966), reveals a lack

of understanding of the Miranda warnings so as to invali-

date a subsequent “on the record,” 1.e., tape recorded,

confession.

2. Assuming arguendo a technical violation of Miranda,

whether physical evidence obtained as the result of good

faith questioning should be admissible.

TABLE OF CONTENTS

Page

Questions presented

Opinions below .............. Fe cela ls AE OE CTT 1

ss cnncounsevncnenedeovenenceneerocsnces 2

Constitutional provisions involved 0.00.0... 2

Statement of the case o......ceccccccecccceccsesssessseseesesceseceeeeceeece. 3

A. Statement of the proceedings 2.0.0.0... ccccccceeee. 3

B. Statement of the facts 20.0.0... ceceeceeeeeeee. 5)

Reasons for granting the writ ..00000 ooo 12

discos dasccncanacrsarecaxee. ieceasesesAaheonennnvemeucabenness 13

I. The California Supreme Court has impermis-

sibly extended the requirements of Miranda ...... 13

Il. Assuming arguendo a technical violation of

Miranda, physical evidence obtained as the

result of good faith questioning should be ad-

missible

Conclusion

il

TABLE OF AUTHORITIES CITED

Cases

Page

Beckwith v. United States, 425 U.S. 341 (1976) ............ 18

Faretta v. California, 422 U.S. 806 (1975) 0.000.000.0000... 15

Michigan v. Mosley, 423 U.S. 96 (1975) ..........0... 15,17

Michigan v. Tucker, 417 U.S. 433 (1974) ............ 12, 18, 19, 20

Miranda v. Arizona, 384 U.S. 436 (1966) -.....0000.0000..... passim

North Carolina v. Butler, 441 U.S. 369 (1979) 00.0000... 16, 17

Oremom v: Eine, 42) UE. TUG (UBIG) sscsecccvccnsententecieteerence 16

People v. Barker, 94 Cal.App.3d 321, 156 Cal.Rptr. 407

ERED: Sensescrcav dace ccatansumss omonocnaseaneamanie ker aaa ema ienctiat ead. 11

People v. Disbrow, 16 Cal.38d 101, 545 P.2d 272, 127

CE es Ne ID erected Sanpete nae ioasee 15

Tague v. Louisiana, 444 U.S. 469 (1980) 0... 17

Constitution

United States Constitution:

SR eee MN erates cane pment 2,4, 12

Nh PROMI ooo ceca sccensesconccsvessnmrace ee eanaetene 2,15

POUCTTOOME ATOR IIOIE onc.ccscccsscccnssecsonocerasnesnsnconssssressess 2

Rules

California Rules of Court:

SU I oc ea ae 2h eo ee ern eee 2

BOE RON esse ee ee 2

Statutes

California Penal Code, section 187 0.....0..000..0ccceccceeeeee. 3

28 U.S.C. section 1257(3) 2

No.

In the Supreme Court

OF THE

United States

October Term, 1980

Tne Peorie or THE Stare or CALIFORNIA,

Petitioner,

VS.

Barry Fioyp BraEseKe,

Respondent.

Petition for a Writ of Certiorari to the

Supreme Court of California

Petitioner, the People of the State of California,

respectfully prays that a writ of certiorari issue to review

the judgment of the Supreme Court of California entered

in this proceeding on August 28, 1980,

OPINIONS BELOW

The opinion of the Supreme Court of California filed

on August 28, 1980, appears as Appendix A to this peti-

tion and is reported at 28 ('al.3d 86, ........ ene :

ane Cal.Rptr. ........ (1980). The majority and dissenting

opinions of the Supreme Court of California filed on

November 15, 1979, appear as Appendix B to this petition

and are reported at 25 Cal.3d 691, 602 P.2d 384, 159 Cal.

2

Rptr. 684 (1979). The vacated opinion of the California

Court of Appeal, First Appellate District, Division Two,

appears as Appendix C to this petition and may be found

at 154 Cal.Rptr. 619 (1979).

JURISDICTION

The judgment of the Supreme Court of California was

entered on August 28, 1980, and became final 30 days

thereafter (Rules 24(a) and 25(a), California Rules of

Court). This petition for a writ of certiorari was filed

within 60 days of August 28, 1980. This Court’s jurisdic-

tion is invoked under 28 U.S.C, § 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution

provides in pertinent part:

“No person ... shall be compelled in any criminal case

to be a witness against himself... .”

The Sixth Amendment to the United States Constitution

provides in pertinent part:

“Tn all criminal prosecutions, the accused shall enjoy the

right ... to have the assistance of counsel for his defense.”

The Fourteenth Amendment to the United States Con-

stitution provides in pertinent part:

“

- nor shall any State deprive any person of life,

liberty, or property, without due process of law... .”

3

STATEMENT OF THE CASE

A. Statement of the Proceedings

On May 18, 1977, a California Superior Court jury for

the County of Alameda found respondent (hereinafter re-

ferred to as defendant) Braeseke guilty as charged of the

first degree murders (California Penal Code, § 187) of his

mother, father and paternal grandfather, and further

found that in murdering his parents he had personally used

a firearm (CT 31-35). On June 23, 1977, defendant was

sentenced to state prison for the term prescribed by law

(life) (CT 37-388A).

On April 17, 1979, the California Court of Appeal, First

Appellate District, Division Two, affirmed the judgment

in a 3-0 decision. (Appendix C.) The Court of Appeal opin-

ion was vacated by the California Supreme Court’s grant

of hearing on July 5, 1979.

On November 15, 1979, the California Supreme Court

reversed the judgment in a 4-3 decision. (Appendix B.)

The People filed a timely petition for rehearing on No-

vember 30, 1979. On December 13, 1979, the California

Supreme Court extended the time for granting or denying

a rehearing to and including January 11, 1980. On Decem-

ber 28, 1979, the petition was denied, with three justices

voting for a rehearing, and the remittitur issued.

On December 31, 1979, the People petitioned to recall

the issuance of the remittitur and for a stay of the execu-

‘In this petition, “CT” refers to the clerk’s transcript on appeal;

“ST” designates the transcript of a pretrial suppression hearing held

on January 13 and 19, 1977; and “RT” refers to the reporter's tran-

script of the trial,

+

tion and enforcement of the judgment. The petition was

denied on January 17, 1980.

On January 28, 1980, the People presented to Mr. Justice

Rehnquist an application for a stay of the execution and

enforcement of the judgment pending determination of a

petition for certiorari (No. A-636). On January 31, 1980,

Mr. Justice Relinquist temporarily granted the stay and re-

ferred the matter to the full Court. On February 19, 1980,

this Court granted the stay pending the timely filing and

disposition of a petition for a writ of certiorari.

The People’s petition for a writ of certiorari was dock-

eted in this Court on March 19, 1980 (No. 79-1465). On

May 12, 1980, this Court granted our petition for cer-

tiorari, vacated the judgment and remanded the case to

the California Supreme Court for that court “to consider

whether its judgment is based on federal or state consti-

tutional grounds, or both.”

On August 28, 1980, the California Supreme Court cer-

tified that its judgment “is based upon Miranda v. Arizona

(1965) [sic] 384 U.S. 436 and the Fifth Amendmeto the

United States Constitution.” (Appendix A.) The Califor-

nia Supreme Court deemed it unnecessary to alter its prior

opinion reversing defendant's murder convictions, and reit-

erated that opinion (found at Appendix B) in its entirety.

(Appendix A.)

On September 10, 1980, the People applied to the Cali-

fornia Supreme Court for a stay of the issuance of the

remittitur and for an order staying the execution and

enforcement of the judgment. The application was denied

on September 17, 1980, and the remittitur issued on

September 29, 1980.

On September 30, 1980, the People applied to Mr. Justice

Rehnquist for a stay of the execution and enforcement of

the judgment (No. A-286). On October 1, 1980, Mr. Justice

Rehnquist granted the stay pending further order of the

Court. On October 14, 1980, this Court continued the stay

pending the filing and disposition of a petition for a writ

of certiorari.

B. Statement of the Facts

The pertinent facts adduced at a pretrial suppression

hearing which combined Miranda and search and seizure

issues are as follows:

In the early morning hours of August 24, 1976, defen-

dant Braeseke, aged 20, called the Alameda County Sher-

iff’s Department and reported that after a night out

with his friend David Barker, he had returned to his

Dublin, California, home to find his mother, father and

grandfather dead as the result of multiple gunshot wounds

(ST 3-4; People’s Trial Exhibit No. 28). Defendant, who

was not a suspect, was transported to the sheriff’s sub-

station, where he talked to Detective Sergeants B. Cervi

and G. Seher (ST 3-4, 13-14, 38). Between 4:20 a.m. and

5:15 a.m., defendant’s exculpatory statement was openly

tape recorded (ST 3-6, 15, 17-18, 38; People’s Trial Exhibit

No. 28).

Following this statement, the two detectives discussed

the matter alone (ST 14-15). They detected some incon-

sistencies between defendant Bracseke’s statement and

what Barker had said in a separate interview (ST 18).

It was also noted that defendant had some blood spots

on the lower part of his pants (ST 18, 37). The detee-

tives decided that defendant was not telling them the

truth, and concluded that he was a suspect (ST 14-15,

17, 37-38, 42).

At approximately 6:00 a.m., defendant Braeseke was

fully advised of his Miranda rights by Sergeant Seler,

who read to him verbatim from the standard departmental

form (ST 15-17, 35-39, 42). At the suppression hearing,

defendant testified that he had in faet been advised of his

constitutional rights (ST 55). Defendant told the detee-

tives that he understood his rights and was willing to talk

to them (ST 35-36, 39). This interview was not tape re-

corded so that defendant might speak more freely (ST

17, 22, 39).

During the interview, Sergeant Seher asked defendant

how the blood got on his pants (ST 16, 18, 37). Defendant

explained that it probably happened when he checked on

the welfare of his parents (ST 37). However, the detect. ‘es

concluded that the blood spots were consistent with “splat-

tering,” and that there would have been no “splattering”

at that time (ST 37). Sergeant Seher specifically asked

defendant if he had killed his parents, and defendant

denied having done so (ST 16). Sergeant Seher then

accused defendant of the killings and placed him under

arrest (ST 14, 16-17, 39-40).

Thereafter, defendant Braeseke asked to see a lawyer

(ST 16-17, 19, 40). The questioning ceased immediately,

~

and defendant was advised that the detectives could not

ask him any more questions and that if he wanted to

discuss the matter any further with them, he would have

to initiate the conversation (ST 18, 36, 40, 42).

Sergeant Cervi then wheeled a typewriter over, put

an arrest record form in it, and began to elicit booking

information from defendant, such as his name, address,

birthdate, and place of employment (ST 19, 23, 40-41). Ser-

geant Cervi did not complete filling out this form, because

when he inquired about defendant’s next of kin, defen-

dant did not answer (ST 41). Defendant instead asked

if he could talk to Sergeant Cervi alone (ST 19-20, 36,

41, 57). Sergeant Cervi agreed (ST 20-22, 41).

The two then went to another office, with Sergeant

Cervi taking his tape recorder along (ST 20, 22-23, 41). At

some point, defendant Braeseke asked to speak to Ser-

geant Cervi “off the record” (ST 20-21). The sergeant

agreed (ST 21). The sergeant intended that an “off the

record” conversation “would not count or would not be

used against [defendant] (ST 21).

Defendant Braeseke spoke in “hypotheticals,” and finally

asked what would happen if he had done what he had

been accused of doing (ST 21-22, 26, 36).? Sergeant Cervi

*Sergeant Cervi believed that the request to speak “off the rec-

ord” had either preceded or followed the first “hypothetical” ques-

tion, one to the effect of “What if I tell you the rifle was somewhere

where some kids may find it?” (ST 20-21.)

Testimony regarding the “off the record” discussion was specif-

ically elicited by defense counsel at the pretrial suppression hear-

ing (ST 20-21),

8

replied that there was no way out of it, defendant was

going to have to go to jail (ST 22). Defendant himself

testified that at some stage Sergeant Cervi told him that it

would be better for him if he gave a statement, but that

he would have to go to jail anyway (ST 56-57).

Sergeant Cervi then asked if he could turn the tape

recorder on and take a “formal statement” from defen-

dant Braeseke (ST 9, 12, 22-23, 26, 42). Defendant agreed,

and at 7:25 a.m., the sergeant turned on the tape recorder

(ST 12, 22-23, 26, 35, 42; People’s Trial Exhibit No. 32).

Sergeant Cervi reminded defendant that they had pre-

viously talked, and that at one point defendant had asked

to have a lawyer before he went any further. As the tape

continued, defendant agreed that during the routine book-

ing and filling out of the arrest form, he had asked if

he could speak to Sergeant Cervi regarding the fatal

shootings. In response to whether he was now speaking

of his own free will, defendant replied, “Hell, yeah; yes.”

He stated, “Yes, yes,” in response to whether he was

well aware of the fact that he still had the right to have

a lawyer present. He was again informed, and said that

he understood, that if he could not afford to hire a law-

yer, one would he appointed for him.’ (People’s Trial

Exhibit No. 32.)

Thereafter, defendant Braeseke confessed that he and

Barker had murdered defendant's parents and grandfather

‘Defendant was in fact so anxious to confess that he interrupted

the sergeant’s explanation about the right to an attorney to say that

he understood it (ST 36-37; People’s Trial Exhibit No. 32). This

was but one of a number of factors leading the sergeant to the good

faith betief that defendant understood his rights completely (ST 24,

36-37),

9

with defendant’s .22 caliber rifle. According to defendant,

Barker had suggested that the two kill defendant's par-

ents and live off the insurance proceeds. They had dis-

cussed this idea for weeks and selected the night of August

23, 1976, as the time to commit the murders. (People’s

Trial Exhibit No. 32.)

On August 23, 1976, defendant and Barker spent the

day planning their strategy. That night, defendant ear-

ried his rifle into the room where his parents, grand-

father and Barker were watching television. Defendant

stated that he first shot his father and then his mother.

Defendant then told Barker to “get” his grandfather. When

Barker hesitated, defendant picked up his grandfather

and threw him down on top of his mother’s body. Defen-

dant ordered Barker to hit his grandfather, and Barker

began striking defendant's grandfather on the head with

a chisel Barker was carrying. According to defendant.

he then gave Barker the rifle and Barker shot and killed

defendant's grandfather, (People’s Trial Exhibit No. 32.)

Defer tant and Barker tried to make the house look as

if it had been ransacked. They then fled in defendant's car,

taking with them the .22 caliber rifle and certain items of

personal property, including defendant's parents’ wallets.

Along the way, they abandoned the rifle under a bridge

and made several stops. Defendant eventually drove Barker

home, and Barker kept the remaining items taken from the

murder scene.‘ Defendant then drove himself home and

‘Evidence at trial disclosed that on August 24, 1976, these items

were found at Barker's San Ramon, California. residence in a search

conducted pursuant to a warrant, a warrant that Was not attacked

at the pretrial suppression hearing (RT 131-139).

10

reported discovering the bodies. (People’s Trial Exhibit

No. 32.)

Defendant's confession concluded at 7:55 aan., with

defendant stating that he would show the detective where

the rifle was (People’s Trial Exhibit No. 32). Thereafter,

defendant directed two other detective sergeants to the

rifle, and it was taken into custody (ST 26-28).

A few hours later, defendant Braeseke gave a taped

statement to Deputy District Attorney Michael Cardoza

(ST 31; People’s Trial Exhibit No. 60). At the beginning

of the interview, defendant was advised again of his

Miranda rights. He said that he understood them and was

willing to talk. He acknowledged that earlier that day he

had been advised of those rights and had understood them.

He further acknowledged that at some point during that

earlier interview, he had told one of the detectives that he

wanted to have an attorney present, and had been advised

that if he wanted to talk further, he would have to initiate

the contact with the detectives. Defendant recounted that

during booking—a short time after he had been advised of

his Viranda rights—he had told Sergeant Cervi that he

wanted to talk to him, and that when he did so, he had the

Miranda rights in mind, understood them, wanted to give

them up, and that he thereafter gave a truthful statement.

(People’s Trial Exhibit No. 60.)

After these preliminary matters, defendant Braeseke

expressed his present willingness to talk to the deputy

district attorney about the crimes. Defendant was once

again given his Miranda rights, waived them, and once more

confessed. (People’s Trial Exhibit No, 60.)

11

Following a court appearance on August 26, 1976, de-

fendant Braeseke went to the booking office at the county

jail (ST 48, 51). Deputy Sheriff P. Shelton, who was work-

ing in the booking office, noticed that defendant, whom

he did not know, appeared emotionally shaken, as if he

were about to ery (ST 48). In order to avoid having de-

fendant break down right there, Deputy Shelton asked him

what was wrong (ST 48). Defendant replied, “I didn’t

mean to do it. I didn’t mean to kill them. It was an acci-

dent.” (ST 49-50.)

Just prior to making this statement, defendant had

handed the deputy a complaint form which he had evi-

dently received in court (ST 50-51). After hearing de-

fendant’s remarks, the deputy looked at the form, and

discovered defendant’s name and the fact that he had been

charged with three counts of murder (ST 50-51). Deputy

Shelton then discontinued his conversation with defendant

(ST 50).

Later on August 26, 1976, a search warrant was issued

for the search of defendant’s house in order to seize items

corroborating what defendant had told Sergeant Cervi and

Deputy District Attorney Cardoza (ST 29-33; People’s

Suppression Hearing Exhibit No. 1). Certain items were

recovered from defendant’s residence that same night, in-

cluding the chisel that Barker was believed to have used

to strike defendant’s grandfather (ST 29-34; People’s Sup-

pression Hearing [ixhibit No. 1).°

‘Evidence at trial disclosed that the chisel contained Barker's

fingerprints etched in blood of the same type as defendant's grand-

father’s (RT 194-201),

Barker was convicted in a separate trial of the first degree murder

of defendant's grandfather and the second degree murders of de-

fendant’s parents. These convictions were affirmed on appeal in

People v. Barker, 94 Cal.App.3d 321, 156 Cal.Rptr, 407 (1979),

12

REASONS FOR GRANTING THE WRIT

This Court granted the People’s prior application for

certiorari in this case (No, 79-1465), vacated the California

Supreme Court’s judgment, and remanded the case for the

California Supreme Court “to consider whether its judg-

ment is based on federal or state constitutional grounds,

or both.” In response to this Court’s directive, the Cali-

fornia Supreme Court certified that its judgment is based

upon this Court’s Miranda decision and the Fifth Amend-

ment to the United States Constitution. The California

Supreme Court's certification enables the People to seek

plenary review in this Court, and we do so by presenting

the same questions that were presented in our previous

petition for certiorari,

State courts have been admonished not to impose greater

Miranda restrictions as a matter of federal constitutional

law when this Court has specifically refrained from so

doing. The California Supreme Court’s opinion in this ease

goes impermissibly beyond this Court’s Miranda require-

ments and, as Mr. Justice Rehnquist observed in granting

our stay application on January 31, 1980, “comes extraor-

dinarily close to the adoption of a rule that in no cases

can waiver be inferred from the actions and words of the

person interrogated.” The California Supreme Court’s

extension of J/iranda mandates review and an authorita-

tive decision by this Court in order to prevent confusion

about the requirements of federal law.

This case may also present the opportunity to answer

a question left unanswered in Michigan v. Tucker, 417 US.

433 (1974), namely, whether, assuming arguendo a tech-

13

nieal violation of the prophylactic rules of Miranda,

physical evidence obtained as the result of good faith ques-

tioning should be admissible.

ARGUMENT

I. THE CALIFORNIA SUPREME COURT HAS

IMPERMISSIBLY EXTENDED THE REQUIRE.

MENTS OF MIRANDA.

In the pretrial suppression hearing, the trial court sup-

pressed defendant Braeseke’s confession to Sergeant

Cervi—the first confession—because in the court’s view a

scvond complete recitation of the Miranda warnings was

required as a matter of law (ST 72). The trial court re-

fused, however, to suppress any other evidence as a tainted

product of that confession (ST 72-77).

The California Supreme Court agreed with our conten-

tion that the trial court’s reason for suppressing the first

confession was incorrect. (25 Cal.3d at 701-702, 602 P.2d

at 390, 159 Cal.Rptr. at 690.) The Supreme Court nonethe-

less sustained the ruling suppressing the first confession

because it did not believe that on the facts presented the

trial court could have found that the first confession was

the product of a knowing and intelligent waiver of defend-

ant’s Miranda rights. (25 Cal.3d at 701-708, 602 P.2d at

390-391, 159 Cal.Rptr. at 690-691.) The Supreme Court

went on to hold that certain other evidence, namely, the

rifle, the confession to Deputy District Attorney Cardoza,

the statement to Deputy Sheriff Shelton, and the items

14

seized from defendant’s house pursuant to a search war-

rant, should also have been suppressed as inadmissible

fruits of the first confession.’ (25 Cal.3d at 697-698, 703-

704, 602 P.2d at 388, 391-392, 159 Cal.Rptr. at 688, 691-692.)

The first degree murder convictions were thereupon

reversed.

In reversing the convictions, the California Supreme

Court concluded that defendant Braeseke’s request to speak

“off the record”—a request which was honored—“revealed

a marked lack of understanding of the Miranda warnings,”

since one of the warnings is that anything a suspect says

can be used against him in a court of law. (25 Cal.3d at

702-703, 602 P.2d at 391, 159 Cal.Rptr. at 691.) This con-

clusion simply does not follow from the facts.

Defendant Braeseke’s request to speak “off the record”

was initiated by him after he had been fully advised of his

Miranda rights, waived them, was questioned, and then

later asserted the right to an attorney, an assertion which

promptly ended questioning about the killings. Defendant’s

request to speak “off the record,” in light of the warnings

‘Because the second confession and the physical evidence in

question were found to be admissible, the defense concluded that

an acquittal was not possible and that therefore the best defense

was one of diminished capacity based upon the use of the drug

PCP. Defendant's trial counsel believed that the first confession

would contribute to that defense and stipulated to its use at trial

on the condition that no appellate rights concerning the rulings,

made at the suppression hearing would be waived. (RT 3-6; see

RT 127-128.)

Although ruled admissible by the trial court, we note that evi-

dence of defendant's conversation with Deputy Sheriff Shelton was

not offered at trial.

15

given him, leads to the ineluctable conelusion that he knew

that if he spoke but did not first obtain permission to have

the conversation “off the record,” then whatever he might

say could be used against him in a court of law. There is

simply no doubt about this. Clearly knowing his rights,

defendant correctly determined that if he were allowed to

speak “oft the record,” then the conversation would not be

legally admissible over objection at trial. See People v.

Disbrow, 16 Cal.3d 101, 106-107, 113, 545 P.2d 272, 275, 280,

127 Cal.Rptr. 360, 363, 368 (1976). Sergeant Cervi under-

stood this too (see ST 21),’

Defendant testified at the Suppression hearing and, al-

though represented by counsel, never claimed that he had

not understood his rights at the time of his first confession

(ST 54-58).8 Interestingly, the California Supreme Court

‘The California Supreme Court ruled that there can be “no such

thing as an off the record discussion,” and reproved Sergeant Cervi

for having acceded to defendant's request. (25 Cal.3d at 703, 602

P.2d at 391, 159 Cal.Rptr. at 691.) The state court’s view is not sup-

ported by direct authority in case law or by logic. Moreover, such a

restrictive rule could “imprison a man in his privileges,” as well as

interfere with and even imperil a defendant's Sixth Amendment:

right to represent himself under Faretta v, California, 422 U.S. 808

(1975). Cf. Michigan v, Mosley, 423 U.S, 96, 108-109 and n. 1

(1975) (White, J., concurring). The pro per defendant would be

hampered in his ability to gather information, assess the merits of

the case against him, and choose a course of action for himself,

These are clearly things that defendant Was trying to do by use of

the “hypotheticals” he posed “off the record.”

“Instead, defendant claimed that the first confession was the

product of a promise of leniency (ST 56-58), Although the Califor-

nia Supreme Court found it unnecessary to decide this issue (25

Cal.3d at 703 n. 7, 602 P.2d at 391 n. 7, 159 Cal.Rptr, at 691 n. 7),

We point out that the state court of appeal found that the claim

was “without merit” (154 Cal.Rptr. at 626-627 ),

16

failed to acknowledge this in its decision. The logical con-

clusion to be reached from defendant’s testimony at the

suppression hearing is that when he gave his first confes-

sion he no longer wanted to speak “off the record,” but

instead wanted to give a “formal statement” (ST 54-58).

This view is in accord with the other evidence adduced at

the hearing.

The California Supreme Court also concluded that the

second confession could not be used to “cure” the “defects”

in obtaining the first confession. (25 Cal.3d at 703, 602 P.2d

at 391, 159 Cal.Rptr. at 691.) However, the conversation

just before the second confession—a conversation pre-

ceeded by another Miranda admonition and full waiver—

explained the circumstances at the time of the first confes-

sion and made clear that there were no “defects” in ob-

taining the first confession. The conversation recounted

what had been said to defendant regarding his rights prior

to the first confession, as well as what defendant under-

stood regarding those rights. Defendant’s understanding

as set forth there is totally at odds with the California

Supreme Court’s conclusion that he lacked understanding

and therefore could not have knowingly and intelligently

waived his J/iranda protections.

It is settled that “a State may not impose... greater

[Miranda] restrictions as a matter of federal constitutional

law when this Court specifically refrains from imposing

them.” Oregon v. Hass, 420 U.S. 714, 719 (1975). In North

Carolina v. Butler, 441 U.S. 869 (1979), this Court recently

discussed the question of Miranda waiver and held that a

waiver of Miranda rights need not be explicit but may be

17

inferred from the actions and words of the person inter-

rogated. See also Tague v. Louisiana, 444 U.S. 469 (1980),

In so holding, this Court stated:

“The question is not one of form, but rather whether

the defendant in fact knowingly and voluntarily waived

the rights delineated in the Miranda case. As was un-

equivocally said in Miranda, mere silence is not enough.

That does not mean that the defendant’s silence,

coupled with an understanding of his rights and a

course of conduct indicating waiver, may never sup-

port a conclusion that a defendant has waived his

rights. The courts must presume that a defendant did

not waive his rights; the prosecution’s burden is great;

but in at least some cases waiver can be clearly in-

ferred from the actions and words of the person inter-

rogated.” (441 U.S. at 373.)

In his Jannary 31, 1980, order granting our application

for a stay, Mr. Justice Rehnquist observed that the Cali-

fornia Supreme Court’s opinion “comes extraordinarily

close to the adoption of a rule that in no cases can waiver

be inferred from the actions and words of the person

interrogated.” The California Supreme Court has there-

fore impermissibly extended Miranda.

Defendant Braeseke’s rights were “serupulously hon-

ored” under applicable law. See Michigan v. Mosley, supra,

423 U.S. at 104. In the words of the dissent, “The conduct

of the police was irreproachable.” (25 Cal.3d at 704, 602

P.2d at 392, 159 Cal. Rptr. at 692.) “There can be no

doubt this twenty-year-old defendant knowingly and in-

telligently waived his Miranda protections.” (25 Cal.3d

18

at 705, 602 P.2d at 392, 159 Cal. Rptr. at 692.) “It would

be difficult to imagine more compelling evidence of waiver

of one’s privilege to sit silent.” (25 Cal.3d at 706, 602 P.2d

at 393, 159 Cal.Rptr. at 693.)

The California Supreme Court’s extension of Miranda

risks “eut{ting] this Court’s holding in that case com-

pletely loose from its own explicitly stated rationale,”

Beckwith v. United States, 425 U.S. 341, 345 (1976). This

Court should grant review to prevent such a result, as well

as the miscarriage of justice which the California Supreme

Court’s decision has imposed in this case.

II, ASSUMING ARGUENDO A TECHNICAL VIOLA-

TION OF MIRANDA, PHYSICAL EVIDENCE OB.

TAINED AS THE RESULT OF GOOD FAITH

QUESTIONING SHOULD BE ADMISSIBLE.

In Michigan v. Tucker, 417 U.S. 433 (1974), this Court

refused to exclude testimony of a witness whose identity

was discovered as the result of the good faith questioning

of a defendant who had not received full Miranda warn-

ings. The instant case presents the additional question of

whether, assuming arguendo a technical violation of the

prophylactic rules of Miranda, physical evidence cubtained

as the result of good faith questioning should be admis-

sible. Here, defendant Braeseke led detectives to the rifle

used in the three murders. Certain other items, including

the chisel used to strike defendant’s grandfather, were

seized from defendant’s residence pursuant to a search

warrant.

19

In deciding in favor of admissibility in Zucker, this

Court observed:

“Just as the law does not require that a defendant

receive a perfect trial, only a fair one, it cannot realis-

tically require that policemen investigating serious

crimes make no errors whatsoever. The pressures of

law enforcement and the vagaries of human nature

would make such an expectation unrealistic. Before

we penalize police error, therefore, we must consider

whether the sanction serves a valid and useful pur-

pose.... [{/] The deterrent purpose of the exclusion-

ary rule necessarily assumes that the police have en-

gaged in willful, or at the very least negligent, conduct

which has deprived the defendant of some right. By

refusing to admit evidence gained as a result of such

conduct, the courts hope to instill in those particular

investigating officers, or in their future counterparts,

a greater degree of care toward the rights of an ac-

cused. Where the official action was pursued in com-

plete good faith, however, the deterrence rationale

loses much of its force.” (417 U.S. at 446-447.)

Any arguable law enforcement failure with respect to

defendant Braeseke was unquestionably made in complete

good faith. Proof of this is amply demonstrated by the

fact that after months of consideration, a division of the

state court of appeal unanimously concluded that there had

been no Miranda violation, and three justices of the Cali-

fornia Supreme Court called the law enforcement conduct

“irreproachable.” The deterrence effect of the exclusionary

rule would not be significantly augmented by excluding the

real evidence along with the confessions. See Michigan v.

Tucker, supra, 417 U.S. at 447-448.

20

Another justification for the exclusionary rule is protec-

tion of the courts from reliance on untrustworthy evidence.

Michigan v. Tucker, supra, 417 U.S. at 448. But, objects

such as the murder weapon and the chisel with Barker’s

fingerprints on it can only aid in determining the truth.

For the reasons set forth in 7'ucker, physical evidence

obtained as the result of good faith questioning which fol-

lows a technical violation of Miranda should be admissible.

CONCLUSION

For the foregoing reasons, we respectfully submit that

a writ of certiorari should issue to review the judgment

of the Supreme Court of California.

Dated: October 20, 1980

Grorce DevuKMEJIAN

Attorney General of the State of

California

Rosert HH, Pur.rpostan

Chief Assistant Attorney General

—Criminal Division

Epwarp P, O’Brien

Assistant Attorney General

Deratp E, GRaNBERG

Deputy Attomey General

Mricnari D. WHELAN

Deputy Attomey General

Attorneys for Petitioner

(Appendices Follow)

Appendix A

In the Supreme Court of the State of California’

Crim, 21049

Super. Ct.

No, 63100

The People, }

Plaintiff and Respondent,

Vv. :

Barry Floyd Braeseke,

Defendant and Appellant. :

[Filed Ang. 28, 1980]

The Court:

The Supreme Court of the United States on May 12,

1980, issued its order and judgment that “the judgment

of the Supreme Court of California in this cause is vacated,

and that this cause is remanded to the Supreme Court of

California to consider whether its judgment is based on

federal or state constitutional grounds, or both.” ........ US,

ae » 100 S.Ct. 2147,

Pursuant to this mandate we have reexamined our opin-

ion in this case (reported at 25 Cal.3d 691) and certify om

judgment is based upon Miranda vy, Arizona (1965) 884

U.S. 436 and the Fifth Amendment to the United States

Constitution. Inasmuch as we deem it unnecessary to alter

our prior opinion, we reiterate it in its entirety.

Appendix B

In the Supreme Court of the State of California

Crim. 21049

Super. Ct. No. 63100

The People, ]

Plaintiff and Respondent,

v.

—~-r

Barry Floyd Braeseke,

Defendant and Appellant.

| Filed Nov. 15, 1979]

OPINION

Defendant Barry Floyd Braeseke appeals from a judg-

ment of conviction of three counts of first degree murder

(Pen. Code, § 187). The issues presented involve the trial

court’s ruling on defendant’s pretrial motion to suppress

various statements made by him, including two confessions,

and certain physical evidence. The trial court ruled that the

first confession was inadmissible but that the rest of the

evidence was admissible. Defendant contends the trial court

erred in not suppressing the rest of the evidence on the

ground that it was all a produet of the first unlawfully ob-

tained confession. The People, however, challenge the pro-

priety of the ruling that the first confession was inadmis-

SEE DISSENTING OPINION

B-2

sible, arguing that they are entitled to seek such review

under Penal Code seetion 1252."

On August 24, 1976, at approximately 1 a.in., defendant,

who was then 20 vears old, summoned Alameda County

Sheriff's deputies to his home. There the deputies found

the bodies of defendant’s mother, father and grandfather;

all were dead as the result of multiple gunshot wounds.

In response to questioning by the deputies, defendant

said he had last seen his parents and grandfather alive at

9 p.m. when he left the house to go to a movie with his

friend David Barker. The deputies noticed that although

the master bedroom appeared to have been ransacked,

there was no sign of forced entry; also, a number of items

that would normally have been taken in a burglary were

left untouched.

Defendant was taken to the sheriff’s substation where he

was interviewed by Sergeants Cervi and Seher shortly

after 4 a.m. He related the same version of events he had

earlier recounted. The interview ended about 5:15 aan.

Sergeants Cervi and Seher then discussed the case out of

defendant’s presence. They noted that defendant had blood

splattered on his pants leg and that there were ineon-

sistencies between defendant’s story and that of his friend

David Barker whom the officers had interviewed earlier.

The officers therefore decided to conduct a further inter-

view of defendant.

The second interview began about 6 a.m. It was not tape

recorded, but defendant was fully advised of his Miranda

‘Unless otherwise indicated, all section references hereafter arc

to the Penal Code.

B-3

rights. Defendant said he understood his rights and was

willing to talk with the officers. When asked about the blood

on his pants, defendant stated that it must have been

acquired when he was checking the bodies. The officers

replied that “splattered” blood would not be the result of

having rubbed against a bloody object and that they be-

lieved defendant had committed the homicides, At this

point defendant said he did not want to discuss the matter

further without an attorney present. The questioning

ceased, and Sergeant Cervi told defendant that if he wanted

to talk at some later time he would have to contact the

officers. Defendant was then arrested and booked.

During the booking procedure, Cervi asked defendant for

his name, address and date of birth. When he asked de-

fendant the name of his next of kin, defendant fell silent

and asked if he could speak with Cervi alone and “off the

record” (hereafter referred to as the “off the record state-

ment”). Cervi agreed, and defendant began asking him

hypothetical questions: “What if I tell you the rifle was

somewhere where some kids may find it?” What would

happen to him if he had done all the things the officers had

accused him of doing? Cervi replied that he would appre-

ciate any information defendant could give him but that

defendant would have to go to jail. Defendant testified that

Cervi also told him that “it would be better for [him]” if

he gave a statement but that he would have to go to jail

anyway.

Cervi then asked defendant, “[CJan I turn the tape re-

corder on; and can we get a statement from you to that

effect?” Defendant said yes, and Cervi turned on the tape

recorder at 7:25 a.m., from memory attempted to read-

B-4

monish defendant of his Miranda rights, and recorded his

statement (hereinafter referred to as Confession No. 1).

In response to leading questions by Cervi, which omitted

reference to the “off the record” request, defendant ac-

knowledged that he had come forward during the booking

procedure and asked to talk to Cervi about the incident. In

response to further questions, defendant stated that he was

acting voluntarily and was willing to waive his right to

have an attorney present. Cervi concentrated on defend-

ant’s understanding of his right to counsel and neglected

to include in his readmonishment the right to remain

silent.’

‘The transcript of that discussion reads in pertinent part as

follows:

"Q. [Cervi] Barry, we have talked previous regarding the

fatal shooting of your parents last night, uh, and we actually

got to the point where you said you wanted to have a lawyer

before you went any farther, Then, during the routine booking

and filling out of the arrest form, you asked if you could speak

to me; is that correct?

“A. Yeah,

“Q. And you—what I’m saying is that you came forward to

me and asked if—asked to talk to me regarding the incident; is

this correct?

"ie ¥O8.

“Q. And you're doing this of your own free will. . .

“A. Hell, yeah; yes,

“Q. ... being well aware of the fact that you still have the

right to have a lawyer present.

"A. Yes, yes.

5 To have him pres-present for any and all questioning,

and that if you .

ao coleiaad that,

“Q. And that if you cannot afford to hire one, the courts

will appoint one for you.

“A. Yeah, yes.

"Q. Okay, keeping all of this in mind, Barry, would you run

down to me what did happen at your house tonight?

“A, TI don’t know how I can start.

“Q. Let's start with dinner, . . .”

B.5

During the formal statement defendant confessed that he

and David Barker had murdered his mother, father and

grandfather with a .22 caliber rifle. At the conclusion of

the formal statement (Confession No. 1) defendant led

the officers to the spot where he had hidden the rifle.

About 1 p.m. the same day defendant gave a_ tape-

recorded statement to Deputy District Attorney Michael

Cardoza (hereafter referred to as Confession No. 2). Car-

doza began by advising defendant of his Miranda rights.

Defendant said he understood them and was willing to

talk. He confirmed the prior sequence of events and stated

that he was aware of his Miranda rights and understood

them at the time he asked to talk to Sergeant Cervi.'’

‘The transcript of that colloquy reads as follows:

“Q. [Cardoza] Now, what I'd like to talk to you about,

Barry, is last night. Now earlier this moming, on August 24,

1976, you were in the Sheriff's Office, is that correct?

“A. Yes,

“Q. Prior to talking to the sheriff, you were read some rights,

your Miranda rights, weren’t you?

“A. TE

“Q. All right, those were the same rights that I just read you,

is that correct?

“A. Yes.

“Q. At the time that the sheriff read those rights to you,

did you understand those rights?

“A. Yes.

“Q. Did he read them to you as I read them to you.

“A. Yes.

“Q. Did he explain them to you?

“A. He didn’t need to—I understood them.

“Q. And—correct me if I’m wrong—at that time you told

him that you didn’t want to talk to him—you wanted your attor-

ney present, is that correct?

"A. Yes.

“Q. And then a booking procedure started where you were

being booked into jail, is that correct?

“A. Yes.

“Q. Prior to being booked into jail, that sheriff [sic] officer

told you that if you wanted to talk about it some more you

would have to re-initiate contact with him—that would mean that

B-6

Defendant was again asked whether he was willing to

waive his rights and talk; he said he was and again gave

a full confession (Confession No, 2). This interview ended

at 2:09 p.m.

if you want to talk more, you'd have to tell him, I want to talk

about it, is that correct?

“A. Yes.

“Q. Did you in fact tell him that you wanted to talk to him

while you were being booked?

“A. Yes, I did.

“Q. No one forced you to do that, did they Barry?

a NO

“Q. Could you keep your voice up, please?

“A. All right.

How long after you were given the Miranda rights by

that sheriff officer early this morning, did you ask to re-talk to

the sheriff officer?

“A. About fifteen minutes to half an hour,

“Q. And you remembered these rights, didn’t you? You still

had those rights in mind?

“A. Yes.

“Q. And there was no confusion in your mind about these

rights, was there?

“A. No.

“Q. No one forced you to talk to that sheriff, did they?

“A. No.

“Q. Do you know that sheriff's name that you asked to talk

to again?

“A. I would remember, yes.

. Do you know it now?

“A. No, I can’t remember it right off hand.

“Q. All right, if we were to give you a name, do you think

you would remember it?

¥ Yes.

How does Serbe [Cervi] sound to you?

That's it.

All right, you asked to talk to Sergeant Serbe [Cervi]?

Yes.

And at the time you asked to talk to him, you remembered

ese rights that he had given you earlier?

Yes, sir.

No one forced you to talk to him, did they?

No.

You wanted to do that?

Yes.

And you wanted to give up your rights, is that correct?

“

>

BFOFOFEOrOFS

-

-

allt

-

-

B-7

Defendant made a pretrial motion to suppress his off

the record statement to Sergeant Cervi, the two tape-

recorded confessions (Confessions No. 1 and ”), the rifle

and various items of physical evidence which were al-

legedly products of the confessions. He also moved to sup-

press a statement made two days after his arrest on the

ground that it too was a product of the earlier confessions.

The trial court ruled that the confession to Cervi (Con-

fession No, 1) must be suppressed beeause it had not been

preceded by an adequate Miranda warning. (Miranda y.

Arizona (1966) 884 U.S. 436.) The rest of the items de-

fendant souglit to have suppressed were ruled adinissible.

Since defendant’s challenge to the latter ruling is prem-

ised on the validity of the ruling suppressing the initial

“A. Yes.

"Q. At that time, prior to talking to Sergeant Serbe [Cervil],

did you still understand the rights that he had read you approxi-

mately fifteen minutes to a half hour earlier?

“A. Yes, I did,

= And did you have those rights in mind when you asked

to talk to him?

A. Yes.

“Q. And you did re-talk to him, didn’t you?

“A. Yes, I did.

“Q. What you told him that time, was that the truth?

“A. Yes, it was.

"Q. OK, Barry, Now, again, I’m going to remind you of your

rights, all right? Then I’m going to ask to talk to you about the

incident. Would you be willing to talk to me about it?

/- hee

"In view of the pretrial ruling that defendant's second confession

was adinissible, defendant's trial counsel concluded that defen-

dant’s best defense was diminished capacity. He further concluded

that defendant's first confession, which had been su ypressed, would

lend support to that defense since it coutaiond references to

defendant's use of the drug PCP. Accordingly, defense counsel

stipulated to the admission at trial of the first confession on the

condition that the stipulation would not constitute a waiver of

defendant's right to challenge on appeal the rulings made at the

suppression hearing.

B-8

confession, the first question we must decide is whether

the People may obtain review of the ruling on the first

confession under section 1252. Seetion 1252 provides in

pertinent part: “On an appeal by a defendant, the appellate

court shall, in addition to the issues raised by the defend-

ant, consider and pass upon all rulings of the trial court

adverse to the State which it may be requested to pass upon

by the Attorney General.” This portion of section 1252

was enacted in 1927 as part of the statutory amendments

proposed by the Commission for the Reform of Criminal

Procedure. (Stats. 1927, ch. 620, § 2, p. 1048; see The Asso-

ciation’s Legislative Program (1927) 1 State Bar J. 103.) In

its report to the Legislature on the proposed amendments,

the commission stated: “The additional provision that the

appellate court shall pass upon rulings adverse to the State

which it is requested to consider by the Attorney General

is deemed an important one. At the present time the State

has no way to review rulings adverse to it made during

the trial. The proposed amendment will give this right,

and thus a way will be opened to settle many disputed

questions.” (Rep. of Com. for Reform of Crim. Pre .,

Sen. J., p. 163 (1927).)

Despite the statute’s broad language and stated purpose,

defendant contends that section 1252 does not authorize

review of the ruling on the first confession, He relies on

People vy. Zelver (1955) 135 Cal.App.2d 226; People v.

Burke (1956) 47 Cal.2d 45; and People v. Green (1968) 264

Cal.App.2d 614. In Zelver defendant was charged with

and convicted of three offenses. The trial court granted a

new trial as to count IIT and then dismissed it on its own

motion. Defendant appealed from the judgment of convic-

B.9

tion on counts I and IIT; the People sought review under

Penal Code section 1252 of the grant of a new trial and

dismissal of count II. The Court of Appeal held that the

People were not entitled to such review because the ruling

was one from which they could have appealed under see-

tion 1238, but did not do so: “The statute here involved

[section 1252] was intended to give the People the right,

on an appeal by the defendant, when a judgment of con-

vietion is reversed, to raise points that might be involved

on a retrial. The statute was not designed to give the

People a right in the nature of an appeal. The right of

appeal is governed by other sections of the code.” (People

v. Zelver, supra, 135 Cal.App.2d at pp. 236-237.)

* In People v. Burke, on defendant’s appeal from a judg-

ment of conviction, the People sought review under section

1202 of the trial court's order striking a prior conviction.

We noted that the People could have appealed from the

trial court’s order but did not do so and relied on People

v. Zelver in holding that section 1252 did not authorize

review under such cireumstances.

In People v, Green, defendant appealed from a judgment

convicting him of two counts of receiving stolen property.

The trial court had ruled that defendant's arrest was il-

legal. The Court of Appeal held that the ruling that the

arrest was illegal necessitated a determination that a

search of defendant's room was likewise illegal because

consent to the search was secured immediately after the

illegal arrest and thus was inextricably bound up with it,

Although the People attempted to argue on appeal that

the search was valid because based upon a lawful arrest,

the Court of Appeal, citing Zelver, held that it could not

B-10

undertake such a review where the result would be affirm.

ance of the judgment of conviction.

Both Zelver and Burke are distinguishable from the

present case in that they involved attempts to raise issues

which the People could have had reviewed by exercising

their right of appeal. Although the Green case may not be

so distinguished, it is, in our view, an unwarranted ex-

tension of the Zelver holding. Neither the language of scc-

tion 1252 nor the statement of purpose by its drafter

suggests that its scope was intended to be limited to au-

thorizing review only when a judgment is being reversed,

The present situation is one which the Legislature may

well have had in mind when it added this provision to sec-

tion 1252. Since an appeal by the People is not authorized

in this instance, an interpretation of section 1252 as pre-

cluding review of the order suppressing the initial con-

fession would result in that order being binding on us

even if clearly erroneous. Such a result would he patently

unreasonable here where defendant’s challenge to the ad-

inissibility of the subsequent confession and other evidence

is premised on the validity of the ruling that the first con-

fession was inadmissible. Thus, if the trial court erred in

ruling that the first confession was inadmissible, it follows

that the second confession was admissible and that the

trial court’s ruling to that effect was correct, even though

based upon erroneous reasoning. To preclude the People

from making this argument would be contrary to the rule

that a correct decision of the trial court must be affirmed

on appeal even if it is based on erroneous reasons, (See

People vy. Grana (1934) 1 Cal.2d 565, 571; People vy.

~

B-11

Towner (1968) 259 Cal. App.2d 682, 685; Davey v. Southern

Pac. Co. (1897) 116 Cal. 325, 329; D’Amico v. Bd. of

Med, xaminers (1974) 11 Cal.8d 1, 19; Witkin, Cal.

Criminal Procedure, Appeal, § 682, pp. 665-666; 6 Witkin,

Cal. Procedure (2d ed.) Appeal, § 226, pp, 4215-4216.) To

preclude review of an erroneous ruling on the admissibility

of the first confession would also be contrary to the con-

stitutional provision permitting judgments to be reversed

only when a miscarriage of justice has oceurred. (Cal.

Const., art. VI, $ 13.)

Accordingly, we conclude that the People may, on an

appeal by the defendant and pursuant to the provisions

of section 1252, obtain review of allegedly erroneous rul-

ings by the trial court in order to secure an affirmance of

the judgment of conviction." Our conclusion is consistent

with the rule regarding review of points raised by the

respondent in civil appeals. (See Code Civ. Proe., § 906;

6 Witkin, Cal, Procedure (2d ed.) Appeal, §§ 215-217, pp.

4205-4208 ; Selected 1957 Code Legislation (1957) 32 State

Bar J, 556-557; see also Traynor, Some Open Questions

on the Work of State Appellate Courts (1957) 24 U.Chi.

LL.Rey. 211, 220.) It is also consistent with the holding in

the Zelver and Burke cases where review was denied be-

cause the People had an independent right of appeal which

they failed to exercise and sought to raise error for pur-

poses other than securing an affirmance of the judgment.

We disapprove People v. Green, supra, 264 Cal.App.2d

614, to the extent it is inconsistent with this opinion.

‘The People may, of course, also obtain review of questions

likely to arise on retrial when a judgment of conviction is reversed,

(See People v. Zelver, supra, 135 Cal.App.2d at pp. 236-237; People

v. Burke, supra, 47 Cal.2d at p. 54.)

ee

B-12

We turn to the question of the correctness of the ruling

that defendant’s first confession was inadmissible. The

People contend the trial court erred in excluding the con-

fession on the ground that the Miranda warnings were

inadequate. Defendant, on the other hand, contends that

even if the trial court’s reasoning on the Miranda warnings

was incorrect, its ruling must nevertheless be upheld if

there is any basis in the record to sustain it. (See People

v. Rios (1976) 16 Cal.3d 351, 356; People v. Towner, suprc,

259 Cal.App.2d at p. 685; Witkin, Cal. Criminal Procedure,

Appeal, § 682, pp. 665-666.) On this record we agree with

both contentions but, as we shall show, we conclude that

the trial court’s ruling on the first confession must be sus-

tuined because there is no evidence from which the trial

court could have found beyond a reasonable doubt that

the confession was the product of a knowing and intelligent

waiver of defendant’s Miranda rights. (See People v.

Jiminez (1978) 21 Cal.38d 595.)

A Miranda warning is not required before each custodial

interrogation; one warning, if adequately and reasonably

contemporaneously given, is sufficient. (People v. Johnson

(1969) 70 Cal.2d 469, 477; People v. Bynum (1971) 4 Cal.3d

589, 600.) Defendant was given proper J/iranda warnings

only an hour and a half before the incomplete readmon-

ishment immediately preceding the confession. The warn-

ings given appear sufficient. (See People v. Duren (1973)

9 Cal.38d 218, 241-242.) There remains, however, the ques-

tion whether defendant knowingly and intelligently waived

his Miranda rights.

It is beyond dispute that onee a defendant has asserted

his right to counsel the interrogation must cease. (People

v. Fioritto (1968) 68 Cal.2d 714, 718-719; People v. Pet-

B-13

tingill (1978) 21 Cal.3d 231, 237-241.) It may not be resumed

without counsel unless compelling evidence of a waiver of

the suspect’s rights appears. (Cf. Miranda v. Arizona,

supra, 384 U.S. at p. 474; People v. Randall (1970) 1 Cal.3d

948, 956.) Even when the defendant has not asserted his

right to counsel, a “heavy burden rests on the Government

to demonstrate that the defendant knowingly and intelli-

gently waived his privilege against self-incrimination and

his right to retained or appointed counsel.” (Miranda v.

Arizona, supra, 384 U.S. at p. 475.) When, as here, the

defendant has asserted his right to the presence of an

attorney that burden is particularly onerous (People v.

Randall, supra, 1 Cal.3d at p. 958; ef. People v. Brockman

(1969) 2 Cal.App.3d 1002, 1007-1008) and usually is dis-

charged only by a showing that the defendant initiated

without reservation the renewed interrogation. (See People

v. McDaniel (1976) 16 Cal.8d 156, 172; People v. Randall,

supra, 1 Cal.3d at p. 956.) In the present case defendant

did not unreservedly institute the renewed interrogation,

and the People did not in any other way discharge the

heavy burden imposed upon them by Miranda. A request to

speak “off the record” cannot constitute a knowing and in-

telligent waiver of rights which include the advisement

that “anything [a suspect] says can be used against him in

a court of law.” (Miranda vy. Arizona, supra, 384 U.S. at p.

479; cf, People v. Nudd (1974) 12 Cal.38d 204, 207; People

v. Disbrow (1976) 16 Cal.38d 101, 105-106.) Indeed, defend-

ant’s request revealed a marked lack of understanding of

the Miranda warnings.’ (Cf. People v. Skinner (1965) 235

Thus, even if it be assumed that defendant was attempting to

condition his discussion with Cervi, the assumption simply under-

scores defendant's lack of understanding rather than establishing

the invalidity of the request.

B-14

Cal.App.2d 16.) Sergeant Cervi then contributed to de-

fendant’'s lack of understanding by agreeing to the request

rather than informing defendant that there could be no

such thing as an off the record discussion. (Cf. People v.

Honeyeutt (1977) 20 Cal.3d 150, 158-161.)

In view of the lack of any eredible evidence that defend-

ant’s initiation of the conversation with Sergeant Cerv!

constituted a knowing and intelligent waiver of his Miranda

rights, we must conclude that the continued interrogation

of defendant was in violation of Miranda and that the con-

fession resulting therefrom is inadmissible." (See People

v. Pettingill, supra, 21 Cal.38d at pp. 237-241; People v.

Disbrow, supra, 16 Cal.3d at pp. 105-106; People v. Randall,

supra, 1 Cal.3d at p. 958; People v. Fioritto, supra, 68 Cal.

2d at p. 719.) The lack of a knowing and intelligent waiver

hy defendant of his Miranda rights makes the present sit-

uation similar to that in People v. Pettingill, supra, 21

Cal.3d 231, and the line of cases discussed therein where

police improperly continued interrogating a suspect after

he had invoked his rights under J/tranda. As in those cases,

it is immaterial that the continued interrogation was pre-

ceded by another advisement of Jfiranda rights. Nor do we

believe that anything that occurred in the course of defend-

ant’s second confession, which clearly was a product of his

first confession, can “cure” the defects in the method by

which defendant's first confession was obtained.

Defendant contends that the trial court erred in not

suppressing luis subsequent statements and certain physical

‘In light of this conclusion it is unnecessary to decide whether

the first confession was also inadmissible because it was the

product of a promise of leniency.

B-15

evidence as products of the first confession. “The fruits of

an illegally conducted interrogation are no less inadmis-

sible during the trial of the declarant than his statements

themselves.” (People v. Schader (1969) 71 Cal.2d 761, 778;

see also People vy. Buchanan (1966) 63 Cal.2d SSO, 887.)

Absent prosecution evidence showing a break in the causa-

tive chain between seriatim confessions, there is a pre-

sumption that the subsequent confessions were the product

of the same improper police conduct which induced the first

confession. (People v. Spencer (1967) 66 Cal.2d 158, 165-

168; People v. Johnson (1969) 70 Cal.2d 541, 547; People

v. Sanchez (1969) 70 Cal.2d 562, 574; People v. McClary

(1977) 20 Cal.3d 218, 229.230.)

The prosecution presented no evidence showing a break

in the can_ative chain between defendant's first confession,

the seizure of the rifle following that confession, the second

confession the same day, and a statement by defendant two

days later that he didn’t mean to kill his family.

The improper introduction of a confession constitutes

reversible error. (People v. Pettingill, supra, 21 Cal.3d 231;

People v. McClary, supra, 20 Cal.3d at p. 230; People v.

Randall, supra, 1 Cal.3d at p. 958; People v. Fioritto, supra,

68 Cal.2d at p. 720.)

The judgment is reversed.

MANUEL, J.

WE CONCUR:

BIRD, C.J.

TOBRINER, J.

NEWMAN, J.

B-16

DISSENTING OPINION BY CLARK, J.

How did the constable blunder? What did the officers

do that they should not have done? What should have

been done that was left undone?

The conduct of the police was irreproachable. There-

fore, the lesson (“prophylactic effect”) derived from

today’s decision can only be that this court no longer

aecepts convictions based on voluntary confessions.’ This

despite the fact that many convicted criminals (few erim-

inals, of course, are convicted) would go free but for

confessions. Worse, recognition that some desire to tell

the truth—and should be permitted to do so—escapes

the majority of our court.

There can be no doubt this twenty-year-old defen-

dant knowingly and intelligently waived his Miranda pro-

tections. As soon as the officers had reason to suspect

defendant of the murders they fully advised him of his

Miranda rights. He responded that he understood his

rights and was willing to speak to the officers. When

defendant subsequently invoked his rights and stated he

did not wish to talk further without an attorney present,

the officers immediately terminated the interview, told

defendant they could not question him further, and advised

he would have to reinitiate communication if he later

wished to speak to them.

‘For recent cases manifesting our court’s attitude toward con-

fessions, sce People v. Jimenez (1978) 21 Cal.3d 595; In re

Michael C. (1978) 21 Cal.3d 471, judgment reversed and cause

remanded sub nomine, Fare v. Michael C. (20 June 1979)

US. [47 U.S.L.Week 4771]; People v. Pettingill (1978) 21

Cal.3d 231.

B-17

Defendant was then arrested. While being booked he

asked to speak with Officer Cervi alone and “off the ree-

ord.” This request was granted and when alone, defen-

dant asked Cervi certain hypothetical questions regard-

ing what would happen if he were in fact responsible

for the murders. Cervi told defendant he would have to go

to jail, but that it would be better for him if he gave Cervi

a statement. Cervi then asked defendant if he were willing

to give a tape recorded statement, and defendant agreed

to do so. At commencement of the statement defendant

was reminded he had previously refused to talk further

without an attorney. Defendant acknowledged this was

the case and also admitted he had subsequently asked to

talk further with Cervi. Defendant also stated he was

acting voluntarily and was still aware of his right to

have an attorney present. Cervi did not readvise defen-

dant of his right to remain silent or of the privilege

against self-incrimination, but, as the majority coneede

(ante, p. ........ *), repeating these rights was unnecessary

in light of the complete admonition given him less than

two hours earlier. Defendant then detailed his crimes.

A few hours later defendant gave a taped statement

to a deputy district attorney. Defendant was again given

the Miranda admonition and again stated he understood

it and was willing to waive its protection. He acknowledged

he had previously been advised of these rights, had under-

stood them at that time, had stated he did not wish to

talk without an attorney present and had then been advised

that if lie wanted to talk further, he would have to reinitiate

diseussion with the officers. Defendant affirmed he had

*Majority opinion, page 16. [Page A-12.]

B-18

later told Officer Cervi he wished to speak to him, that

he had acted voluntarily in reinitiating communication

with the officer, and he had done so with his Miranda

rights in mind. Defendant was again asked whether he

was willing to waive his Miranda rights, stated he was

and again gave a full description of his crimes.

[t would be difficult to imagine more compelling evidence

of waiver of one’s privilege to sit silent. Conversely, ce-

fendant’s desire to describe his conduct to those charged

with its solution is clear and should not be frustrated

by our court.

Defendant’s conviction for these grave crimes—cold-

blooded inurder of his father, mother and grandfather to

secure his inheritance—should be affirmed.

CLARK, J.

WE CONCUR:

MOSK, J.

RICHARDSON, J.

Appendix C

Certified for Publication

In the Court of Appeal of the State of California

First Appellate District

Division Two

1 Crim. No. 17213

(Sup.Ct.No. 63100)

}

People of the State of California,

Plaintiff and Respondent,

v.

Barry Floyd Braeseke,

Defendant and idcan

[Filed Apr. 17, 1979]

OPINION

Defendant Barry Braeseke appeals from a judgment con-

victing him of the first degree murder of his mother, father

and grandfather, in violation of section 187 of the Penal

Code. The appeal presents the following issues for resolu-

tion: (1) On this appeal by the defendant, may the People

challenge allegedly erroneous rulings by the trial court?

(2) Were defendant’s two confessions and the physical evi-

dence obtained as a result of such confessions inadmissible

due to an inadequate Miranda warning or because they were

improperly induced by the interrogating ofticer?

C-2

At approximately 1 a.m. on August 24, 1976, Alameda

County sheriff’s deputies were summoned to defendant's

home on Betlen Drive in Dublin. When the deputies ar-

rived, defendant, who was 20 years old, came out onto the

front porch and asked them to “please hurry.” They fol-

lowed defendant into the family room and found the bodies

of defendant's mother, father and grandfather. Defendant's

father had died as the result of three gunshot wounds in

the head; his mother as the result of gunshot wounds in

the head and the abdomen; and his grandfather as the re-

sult of multiple gunshot wounds in the head. Defendant's

grandfather had also sustained head injuries caused by

blows from a blunt instrument.

Sheriff’s Deputy Lockhart talked to defendant at the

scene and asked him when he had last seen his parents

alive. Defendant replied that he had left the house with

a friend, Dave Barker, at 9 p.m. and that at that time,

his parents and grandfather were alive. Defendant said

that he and Barker had visited a friend in Hayward and

had then gone to a drive-in movie. After driving Barker

home, defendant returned to his own home and entered the

front door, which was unlocked. Defendant stated that he

called out to announce that he was home, received no re-

sponse and then went into the family room where he found

the three bodies. According to defendant, he ran immedi-

ately to the home of a neighbor and asked her to eall an

ambulance. Defendant then ran back to his own home and

telephoned the sheriff’s department.

In the course of their investigation at the homicide

scene, the sheriff’s deputies observed that the master hed-

C-3

room gave the appearance of having been ransacked, in

that various drawers had been turned upside-down. How-

ever, the deputies began to doubt that a burglary had

occurred when they were unable to find any sign of a forced

entry and when they also discovered that various items

usually taken in a burglary, such as small appliances, cash

and credit ecards, had been left in plain view on the

premises.

Defendant was transported to the sheriff’s substation in

San Leandro, where he was interviewed by Detective Cervi

and Sergeant Seher shortly after 4 a.m. In his statement,

which was tape recorded, defendant adhered to the same

version of events he had earlier recounted to Deputy

Lockhart, stating that he had gone out for the evening at

9 p.m. and had returned home around 1 a.m. to find the

bodies of his parents and grandfather. This interview

concluded at 5:15 a.m.

Following their initial interview with defendant, Detec-

tive Cervi and Sergeant Seher discussed the ease. Seher

pointed out that he had observed what appeared to be

spattered blood on defendant’s pants legs. The two officers

had also interviewed defendant’s friend, Dave Barker, and

had noticed certain inconsistencies between his story and

that of the defendant. The two officers decided to conduct

a further interview of defendant.

The second interview with defendant commenced at ap-

proximately 6 a.m. It was not tape recorded, but Detective

Cervi and Sergeant Seher poth testified that defendant

was first advised of his Miranda rights and stated that he

understood them and was willing to talk to the officers.

C-4

Defendant then began to repeat his exculpatory version of

the facts until he was asked about the blood on his pants.

IIe replied that the bloodstains must have been acquired

when he was checking the bodies of his parents. The officers

pointed out to defendant that the blood was “splattered”

on his pants and that this condition could not have been

caused by defendant’s having rubbed against a bloody

object at the scene. Sergeant Seher told defendant that he

did not believe his story and thought that he had committed

the homicides. At this point, defendant stated that he did

not want to talk further without an attorney present. De-

tective Cervi proinptly advised defendant that the officers

were precluded from questioning him further and that if

he wished to talk to them at some later time, defendant

would have to contact the officers and so state. Defendant

was placed under arrest and booked.

During the booking process, Cervi asked defendant for

his name, address and date of birth. He asked defendant

the name of his next of kin, at which point defendant first

fell silent and then asked if he could talk to Detective

Cervi alone. Sergeant Seher departed, and Cervi accom-

panied defendant to an office a short distance down the

hall. Defendant stated that he wanted to talk to Cervi

“off the record.” He began asking Cervi hypothetical ques-

tions: “{W]hat if I told you the rifle was somewhere some

kids might find it or where they might get hurt?” What

would happen to him if he had done all the things the offi-

cers had accused him of doing? Cervi testified that he

responded to these questions by telling defendant that he

would appreciate any information which defendant might

C-5

furnish, but that defendant would have to go to jail and

that there was no other alternative.’

Cervi then asked defendant whether he was willing to

give a formal, recorded statement, and defendant agreed

to do so. Cervi turned on the tape recorder at 7:25 a.m.

He first reminded defendant that during a previous inter-

view, defendant had stated that he was unwilling to talk

further without an attorney. Defendant agreed that this

was the case and also agreed that during the booking pro-

cedure, he had asked Cervi if he could discuss the homi-

cides with him further. In response to further questions

by Cervi, defendant stated that he was acting voluntarily

and that he was still well aware of his right to have an

attorney present. Defendant then gave a full confession.

He stated that he and his friend, Dave Barker, had dis-

cussed the idea of killing defendant’s parents over a period

of weeks. Defendant claimed that, frequently, he had been

high on “crystal” durirg ihis period of time. He stated

that the subject of killing his parents first arose when he

bragged to Barker that his parents were rich and that

since he was an only child, all of their money and insur-

ance would go to him in the event of their death. Accord-

ing to defendant, Barker brought up the subject of killing

defendant’s parents on numerous occasions, urging defend-

ant to go through with it and offering to assist him. On

the previous day, August 23, Barker had been particularly

insistent, and defendant ultimately told him that he was

ready to commit the murders. Defendant stated that he

‘Defendant, testifying at the pretrial hearing on his motion to

suppress evidence, admitted that Cervi told him that he would

have to go to jail. However, defendant testified that Cervi also

told him that it “would be better for [defendant]” if he gave

Cervi a statement.

C-6

first shot his father with a .22 caliber rifle and then shot

his mother. Defendant then urged Barker to kill his grand-

father, and when Barker hesitated, defendant threw his

grandfather on top of his mother’s body and ordered

Barker to hit him. Barker began striking defendant’s

grandfather with a chisel, and defendant then handed him

the rifle. Barker shot and killed the grandfather.

Defendant told Cervi that he and Barker had attempted

to make the house look as though it had been ransacked,

they drove off in defendant’s car. They took with them the

.22 rifle and certain items of personal property from de-

fendant’s house, including the wallets of defendant’s par-

ents. After first hiding the rifle under a bridge near Eden

Canyon, defendant and Barker went to a drive-in movie.

Defendant then drove Barker to his home, where the latter

agreed to hide the various items of stolen personal prop-

erty in his backyard. The interview was concluded at 7:55

a.m., after defendant agreed to show the sheriff’s deputies

where the rifle was hidden.

Defendant left the sheriff’s substation with two deputies

and directed them to the spot where he had hidden the

rifle.

Following his return to the substation, defendant agreed

to allow urine and blood samples to be taken so that they

could be tested for aleohol or drug content. He advised

Detective Cervi that he had not taken “crystal” or any

other drug for 24 hours before the homicides.

At approximately 1 p.m., defendant gave a tape recorded

statement to Deputy District Attorney Michael Cardoza.

Defendant was first advised of his Miranda vights and

stated that he understood them and was willing to waive

C-7

them. He admitted that he had previously been advised of

these rights, had understood them at that time, had stated

that he did not wish to talk without an attorney present

and had then been advised that if he wanted to talk further,

he would have to reinitiate contact with the sheriff's

deputies and tell them that he wished to talk to them.

Defendant said that he had, in fact, later told Detective

Cervi, during the booking procedure, that he had made this

statement voluntarily and with his Miranda rights in mind.

Defendant was again asked whether he was willing to

waive his Miranda rights, stated that he was and again

gave a full confession. This final interview was concluded

at 2:09 p.m.

Defendant made a pretrial motion to suppress his “off

the record” statement to Detective Cervi and the two tape

recorded confessions subsequently made to Cervi and to

Assistant District Attorney Cardoza. Also, defendant

sought to suppress various items of physical evidence

which were allegedly the product of his confessions. The

trial court ruled that it would suppress defendant's tape

recorded confession to Cervi on the ground that it had not

been preceded by an adequate recitation of defendant’s

Miranda rights. In all other respects, the suppression

motion was denied.?

*In view of the pretrial ruling that defendant’s second con-

fession was admissible, defendant's trial counsel concluded that

defendant's best defense was diminished capacity, He further con-

cluded that defendant's first confession, which had been sup-

pressed, would lend support to that defense, since it contained

references to defendant's use of the drug “crystal.” Accordin ly,

defense counsel stipulated to the admissibility at trial of the first

confession on the condition that such stipulation would not con-

stitute a waiver of defendant's right to challenge, on appeal,

the rulings made at the suppression hearing.

C-8

Defendant contends that this court may not review the

trial court’s ruling made at the suppression hearing, that

defendant’s first tape recorded confession to Cervi was

inadmissible; further, he argues that if said ruling is

reviewable by this court, it must be upheld because the

evidence at the suppression hearing supports the trial

court’s determination. Defendant also argues that if the

first confession was inadmissible, it follows, as a matter

of law, that the second confession to Cardoza was the

product of the first confession and likewise inadmissible.

He contends that the rifle should have been held inadmis-

sible, since its discovery was the direct result of the first

confession, and that various items of physical evidence

obtained in a search of his home should similarly have

been exeluded because the warrant authorizing that search

was based upon defendant’s two confessions. Finally,

defendant asserts that under the recent decision in People

v. Jimenez (1978) 21 Cal.3d 595, he is entitled to a reversal

of the judgment of conviction and a redetermination of the

admissibility of the second confession because the record

does not affirmatively demonstrate that the trial court

utilized the beyond a reasonable doubt standard of proof in

ruling upon the voluntariness of the second confession.

We first consider the question of whether this court is

empowered to review the trial court’s determination that

defendant’s first confession to Detective Cervi was inadmis-

sible,

Section 1252 of the Penal Code was amended in 1927 to

add the following provision: “On an appeal by a defendant,

the appellate court shall, in addition to the issues raised

C-9

by the defendant, consider and pass upon all rulings of the

trial court adverse to the state which it may be requested

to pass upon by the attorney general.” (Stats. 1927, ch.

620, § 2, p. 1048.)

Although, on its face, this language appears to be quite

broad in application, it has been given a more narrow

judicial construction. In People v. Zelver (1955) 185

Cal.App.2d 226, the defendant was charged with and con-

victed of three offenses. The trial court concluded that two

of the offenses were not severable, and granted a new trial

on Count II of the indictment, then dismissed that count

on its own motion. On defendant’s appeal from the judg-

ment of conviction, the Attorney General sought review of

the orders which granted a new trial as to Count II and

then dismissed that count. The appellate court held that,

although these orders were erroneous, section 1252 of the

Penal Code did not authorize the People to seek review of

same where the defendant alone had appealed and where

the result of said appeal was affirmance of the judgment of

conviction. The court pointed out that the People’s right

to appeal was governed by section 1238 of the Penal Code

and that the People could have appealed from the order

granting a new trial as to Count II, but had failed to do so.

The court then went on to state: “[Section 1252] was

intended to give the People the right, on an appeal by the

defendant, when a judgment of conviction is reversed, to

raise points that might be involved on a retrial. The statute

was not designed to give the People a right in the nature

of an cppeal. The right of appeal is governed by other

sections of the code. Thus, although the ruling of the trial

court was adverse to the People and erroneous, we have

C-10

no power on the appeal by the defendant where an affirm-

ance results, to rectify it by reversing or modifying the

judgment in favor of the People.” (Pp. 236-237.)

The Zelver holding was followed by the California

Supreme Court in People v. Burke (1956) 47 Cal.2d 45,

Where the defendant had appealed from a judgment of

conviction and the Attorney General sought review of the

trial court's order striking a prior conviction, The Supreme

Court pointed out that the People could have filed their

own appeal from the order in question and rejected the

Attorney General’s contention that the order was review-

able under section 1252 of the Penal Code. The court

quoted with approval the language from the Zelver ease

which is set forth above.

The Zelver holding was again followed in People v. Green

(1968) 264 Cal.App.2d 614, where the defendant appealed

from a judgment convicting him of two counts of receiving

stolen property. The trial court had ruled that the defend-

ant’s arrest was illegal. The appellate court held that this

finding necessitated a determination that a search of the

defendant’s room was likewise illegal because consent to

the search was secured immediately following the illegal

arrest and was inextricably bound up with the arrest. Al-

though the Attorney General attempted to argue on appeal

that the search was valid because based upon a lawful

arrest, the appellate court, citing Zelver, held that it could

not review the trial court’s ruling that the arrest was

illegal where the result of such review would be affirmance

of the judgment of conviction.

C-11

The Attorney General argues that the Zelver and Burke

decisions are both distinguishable because they involved

situations where the People could have obtained the desired

appellate review by exercising their own right of appeal.

whereas in this instance, there was no avenue of appeal

open to the People. While the Attorney General tacitly

concedes that People v. Green, supra, may not be so dis-

tinguished, he takes the position that that case was incor-

rectly decided in that it ignores the plain language of the

1927 amendment to section 1252 of the Penal Code. He finds

compelling evidence of legislative intent in an excerpt from

the Journal of the Senate (1927) at page 163: “The ad-

ditional provision that the appellate court shall pass upon

rulings adverse to the State which it is requested to con-

sider by the Attorney General is deemed an important one.

At the present time the State has no way to review rulings

adverse to it made during the trial. The proposed amend-

ment will give this right, and thus a way will be opened

to settle many disputed questions.”

This case appears to present precisely the situation

which the Legislature had in mind when it adopted the

1927 amendment to section 1252. Section 1238 of the Penal

Code does not authorize an appeal by the People in this

instance, therefore, if section 1252 is so interpreted as to

preclude review of the order suppressing defendant’s initial

confession to Cervi, such order is binding upon this court

even if clearly erroneous as a matter of law. Under the

circumstances of this case, such a result is patently un-

reasonable. Here, the trial court held that the first con-

fession to Cervi was inadmissible, but that the second

confession to Cardoza was not, presumably because the

C-12

court concluded that the second confession was not infected

by or the product of the first. If the trial court erred in

ruling that the first confession was inadmissible, it follows

that the second confession was admissible and that the

trial court’s ruling to that effect was correct, even though

based upon erroneous reasoning. Therefore, to preclude the

Attorney General from making this argument would be

contrary to the rule that a correct decision hy the trial

court must be upheld on appeal, even though based upon

erroneous reasons. (People v. Towner (1968) 259 Cal. App.

2d 682, 685.) To preclude review of an erroneous ruling on

the admissibility of the first confession would also violate

that provision in the California Constitution which permits

reversal of a judgment only for a miscarriage of justice.

(Cal.Const., art. VI, 4 13.)

Accordingly, we conelude that where the People have

no independent right of appeal under section 1238 of the

Penal Code, they may, on an appeal by the defendant and

pursuant to the provisions of section 1252 of the Penal

Code, obtain review of erroneous rulings by the trial court

in order to obtain an affirmance of the judgment of con-

viction. Our conclusion in this regard is not contrary to

the Zelver or Burke holdings, since both cases involved

situations where the People did have an independent right

of appeal, but failed to exercise same. To the extent that

our determination is contrary to the reasoning of the

Green case,’ we have coneluded that Green ignores the

plain language of section 1252 by unduly restricting the

’The correctness of the holding in People v. Green (1968) 264

Cal.App.2d 614, was apparently questioned in People e Magana

(1969) 272 Cal.App.2d 388, 389, fn. 1.

C-13

People’s right to obtain appellate review of erroneous trial

court rulings unfavorable to the People; also, that it leads

to the improper result of reversing a judgment of convic-

tion where there has been no miscarriage of justice.

The substantive issue to be resolved is whether the trial

court erred in ruling that defendant’s first confession to

Cervi was inadmissible.

When announcing that it would suppress the first con-

fession, the court stated that it was basing its ruling upon

the fact that “there was inadequate admonition as to [de-

fendant’s] Miranda rights... .” However, the court had

also indicated previously that it believed defendant’s testi-

mony that Cervi had told him that “it would be better for

{him}” if he gave a statement.‘ Thus, the trial court's

decision to suppress the first confession must be upheld

if the record supports a determination either that the first

confession was obtained in violation of defendant's Miranda

rights or as the result of improper inducement by Cervi.

In resolving these questions, it is the duty of an appellate

court to examine the uncontradicted facts and determine,

independently, whether the confession was voluntary, hence

admissible. (People v. Jimenez, supra, 21 Cal.3d at p. 609;

People v. McClary (1977) 20 Cal.3d 218, 227; People

Sanchez (1969) 70 Cal.2d 562, 571-572.)

The record reveals that defendant was fully advised of

his Miranda rights at 6 a.m. at the commencement of the

second interview jointly conducted by Detective Cervi and

‘Defendant's testimony in this regard was never contradicted by

Detective Cervi. Although the serge indicated at one point

that he intended to recall Cervi for that purpose, he failed to do so.

C-14

Sergeant Seher. During the course of that interview, after

the officers had confronted defendant with the splattered

blood on his pants and Seher had told him that he did not

believe his story, defendant invoked his Miranda rights

and stated that he did not want to talk further without

the presence of an attorney. The officers immediately

terminated the interview and told defendant that they

could not question him further and that defendant would

have to reinitiate contact with them if he later decided that

he wished to talk to them again.

Defendant was then arrested. While in the process ef

being booked, he asked to talk to Cervi alone and “off

the record.” This request was granted, and when they were

alone, defendant asked Cervi certain hypothetical ques-

tions concerning what would happen if he were in fact

responsible for the homicides. Cervi told defendant that

he would have to go to jail, but that it would be better for

him if he gave Cervi a statement. Cervi then asked defend-

ant if he was willing to give a tape recorded statement,

and defendant agreed to do so. At the commencement of

his statement, defendant was reminded that he had pre-

viously refused to talk further without an attorney. De-

fendant acknowledged that this was the case and also

admitted that he had subsequently asked to talk further

with Cervi. Defendant also stated that he was acting

voluntarily and was still aware of his right to have an

attorney present. Cervi did not readvise defendant of his

right to remain silent or of the privilege against self-

incrimination. Defendant then gave the first confession.

C-15

There is ample authority for the proposition that a

Miranda warning is not required before each custodial

interrogation of a suspect by the police; that one such

warning, adequately given, is sufficient for subsequent

interrogations. (People v. Johnson (1969) 70 Cal.2d 469,

477; People v. Sievers (1967) 255 Cal.App.2d 34, 37-38.)

However, it is also the rule that where a suspect is given

a Miranda warning and invokes his rights by refusing to

talk to the police without an attorney, a subsequent admis-

sion or confession given by the suspect will be held ad-

missible only if the subsequent interview was voluntarily

initiated by the suspect ard there was no evidence of coer-

cion, pressure, compulsion or any suggestion of leniency.

(People v. Brockman (1969) 2 Cal.App.3d 1002, 1007-1011 ;

People v. Duran (1969) 269 Cal.App.2d 112, 116-117.)

For his second point, defendant relies upon such cases

as People v. Brommel (1961) 56 Cal.2d. 629, 632, and Peo-

ple v. Russell (1968) 259 Cal.App.2d 637, 646, as authority

for the proposition that a statement by the police that “it

would be better for” a suspect to make a full disclosure or

tell what he knows, renders a subsequent confession or

admission involuntary as a matter of law. In Brommel,

the interrogating officer did not confine himself to advis-

ing the defendant that it would be better for him to tell

the truth, but also told him that if he refused to admit his

complicity in the offense, he would be branded a liar in

the eyes of the trial judge, would not be believed in any-

thing he said, and would be accorded no leniency what-

ever. (P. 633.) Russell involved a situation where the giv-

ing of a Miranda warning to the defendant was immedi-

ately followed by the suggestion that it might be better

C-16

for the defendant if he talked. (P. 644.) Since this sug-

gestion was given as a supplement to the Miranda warn-

ing, the appellate court concluded that at the very least,

it qualified the Miranda warning and rendered it unclear.

(Pp. 645-646.) The court was also of the opinion that even

if the suggestion that it would be better for the defendant

if he talked were viewed as a separate inducement which

did not detract from the Miranda warning, it nevertheless

constituted improper conduct on the part of the officer

and rendered the defendant’s statement inadmissible. The

court stated, “The words ‘it might be better for you’ when

made, as in this case, to a suspect in the isolation of an

interrogation room can too easily be interpreted as an

implied threat or cajolery to be equated with a statement

whose sole purpose is to point out to the suspect the bene-

fit which ‘follows naturally from a truthful and honest

course of conduct.’” (P. 646.)

On the other hand, the mere statement to a suspect that

it would be better for him to tell the truth, when unaccom-

panied by any threat or promise, does not render a. subse-

quent confession involuntary. (People v. Jimenez, supra,

21 Cal.3d at p. 611; People v. Hill (1967) 66 Cal.2d 536,

549; People v. Ditson (1962) 57 Cal.2d 415, 432; People

v. Nelson (1964) 224 Cal.App.2d 238, 250.) In People v.

Hill, supra, at page 549, the California Supreme Court

stated the rule simply and succinctly: “When the benefit

pointed out by the police to a suspect is merely that which

flows naturally from a truthful and honest course of con-

duct, we can perceive nothing improper in such police

activity. On the other hand, if in addition to the foregoing

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benefit, or in the place thereof, the defendant is given to

understand that he might reasonably expect benefits in

the nature of more lenient treatment at the hands of the

police, prosecution or court in consideration of making a

statement, even a truthful one, such motivation is deemed

to render the statement involuntary and inadmissible.”

In this instance, we hold that, since defendant had been

recently and fully advised of his Miranda rights, Detec-

tive Cervi was not required to repeat such admonition

after defendant voluntarily asked to talk with Cervi pri-

vately. In our view, this determination finds support in

defendant’s statements made immediately prior to his sec-

ond confession to Cardoza, wherein he acknowledged that

he had understood his Miranda rights and had had them

in mind when he initiated the “off the record” discussion

with Cervi.

Also, we conclude that defendant's claim that his con-

fession to Cervi was involuntary because induced by a

promise of leniency is without merit. At that point in time

when Cervi suggested to defendant that it would be better

for him to give a truthful statement, Cervi, in response to

a hypothetical question posed by defendant, had just stated

that even if defendant cooperated with the deputies and

admitted his complicity in the homicides, there was still no

alternative to his going to jail. Viewed in this context, the

remark that it would be better for defendant to give a

statement could not reasonably have been interpreted by

defendant as a promise of leniency; simply a suggestion

that it is a good thing to tell the truth. A statement of this

nature does not render a confession involuntary and

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inadmissible. This situation is clearly distinguishable from

People v. Russell, supra, 259 Cal.App.2d 637. Here, Detece-

tive Cervi’s statement was not given as a supplement to a

Miranda warning and cannot be viewed as qualifying such

warning. Defendant had previously been given the Miranda

admonition, had invoked his right not to talk further with

the officers and had then voluntarily initiated a conversation

with Cervi after the prior questioning had been terminated.

Also, in Russell, the suggestion that it would be better for

the defendant to talk was not preceded by any statement

to the effect that telling the truth would gain the defendant

no benefit in terms of more lenient treatment and that he

would have to go to jail in any event.

We are also of the opinion that the defendant had arrived

at his own independent decision to confess when, during

the course of the booking process, he was asked to name

his next of kin. According to Cervi’s uncontradicted testi-

mony, defendant responded to this question by momentarily

falling silent and then asking to talk to Cervi alone. When

this request was granted, defendant immediately began

propounding hypothetical questions indicative of his guilt.

Undoubtedly, Cervi’s routine and innocuous questions pre-

cipitated a normal human reaction: momentary silence

when defendant then realized that he had murdered his next

of kin. Understandably, the stark reality of this monstrous

deed prompted a strong desire to unburden himself on

someone. Cervi did nothing to improperly induce or coerce

a confession; lie merely allowed events to pursue an

inevitable course. His admonition to defendant that it would

be better to give a statement, when considered in context

with his warning that, in any event, defendant would go

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to jail, could not reasonably constitute any form of psycho-

logical or other unlawful inducement to confess. Thus,

defendant’s first confession was not the product of im-

proper or illegal conduct on the part of Cervi; instead, it

found its independent origin in defendant’s deep feelings

of guilt. Contrary to the trial court’s determination, that

confession was freely and voluntarily given, hence admis-

sible into evidence.

Our determination that defendant’s first confession to

Cervi was admissible establishes that the trial court was

correct in admitting the second confession into evidence,

even though the court may have based its ruling upon

erroneous reasons. Defendant’s sole basis for attacking the

second confession is that it was the product of a prior con-

fession which was inadmissible because improperly induced.

Since we have concluded that this latter premise is unsound,

it is evident that the second confession was properly

admitted. The same reasoning defeats defendant’s claim

that the trial court erred in admitting the rifle and the

physical evidence seized in the search of his home. Here

again, defendant’s argument is based upon the erroneous

premise that the two confessions were inadmissible and that

the rifle and other items of physical evidence were inadmis-

sible because they were products of such confessions.

We have also concluded that there is no merit to de-

fendant’s contention that the record does not affirmatively

establish that the trial court applied the beyond a reason-

able doubt standard in ruling upon the admissibility of the

confessions, as mandated by People v. Jimenez, supra, 21

Cal.3d 595, The Jimenez court stated, “since any error as

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to the standard of proof applied in determining the volun-

tariness of a confession relates only to a question of pre-

liminary fact, we have concluded that the effect of any

such error should be measured in accordance with the stand-

ard enunciated in People v. Watson (1956) 46 Cal.2d 818,

887 [299 P.2d 243]; thus when it appears after looking at

the whole record of the voluntariness hearing that there

is no reasonable probability that a result more favorable

to the appealing party would have been reached in the

absence of the error, the trial court’s finding of voluntari-

ness should be sustained on appeal.” (P. 609.)

In this instance, the evidence bearing upon the circum-

stances under which defendant’s confessions were made is

uncontradicted and furnishes no support for a finding that

either confession was improperly induced. We conclude that

there is no reasonable probability that defendant would

have obtained a more favorable result on his motion to

suppress evidence had the trial court applied the beyond

a reasonable doubt standard.

The judgment of conviction is affirmed.

CERTIFIED FOR PUBLICATION,

Rouse, J.

WE CONCUR:

Taylor, P. J.

Kane, J.