Opinion
Rehearing Denied April 14, 1965.
For Opinion on Hearing, see 48 Cal.Rptr. 188, 408 P.2d 964.
S. Carter McMorris, Sacramento, for appellant.
Thomas C. Lynch, Atty. Gen., by Doris Maier, Asst. Atty. Gen., and R. M. Momboisse, Deputy Atty. Gen., Sacramento, for respondent.
REGAN, Justice.
Defendant was tried before the court, sitting without a jury, and convicted of the crime of violation of section 496 of the Penal Code (receiving stolen property). He has filed this appeal from the order of the trial court which granted probation.
It was stipulated, at the onset of the trial, that on November 4, 1963, the store of John F. Eckerman was burglarized and that stock of the store, including clothes and shoes, was taken therefrom.
According to the testimony of an inspector in the detective division of the sheriff's office defendant, on November 6, 1963, came to that office with his mother. He had with him items of clothing and shoes which were part of the stolen merchandise; the inspector testified that defendant made a free and voluntary statement to this officer who was then in the process of investigating the burglary; that defendant was advised that he was being investigated under the 'burglary charge'; that it was not necessary for him to make a statement at that time unless he so wished; that defendant at that time stated he was aware that others involved in the burglary had been apprehended and he had decided to 'voluntarily come in, bring in the items himself and clear the matter up'; that he was not advised that he 'could have an attorney or he couldn't'; that he was advised anything he might say could be used against him; that defendant stated he was with the other persons who subsequently were arrested for the burglary and was told by them that they had broken into the store, had taken various items of clothing and if he wished to have some of the items of clothing he could go with them to an apartment and get them. According to the officer's testimony, defendant admitted going to the apartment and taking the items, and admitted further he knew the items were stolen. Testifying in his own behalf, defendant admitted obtaining some articles of clothing at the apartment, but denied knowledge that the clothing was stolen until learning of this fact the following day.
One of the burglars had previously testified that defendant was at the apartment where the stolen merchandise was distributed and that defendant there and then took some of the stolen merchandise. Since the trial court admitted evidence of defendant's admissions of receiving the stolen property, our first question is: 'Was the corpus delicti established before defendant's statement was admitted in evidence?'
The essential elements of the crime of knowingly receiving stolen property (Pen.Code, § 496) are:
(a) Property obtained by theft or extortion.
(b) Receiving such property.
(c) Actual knowledge of accused of the stolen character of the property. (See People v. Candiotto, 183 Cal.App.2d 348, 349, 6 Cal.Rptr. 876.) The first of the three elements of the crime was established by the stipulation that a burglary had been At this point in the trial the people had established a prima facie case of the crime against defendant. See People v. Lopez, 126 Cal.App.2d 274, 278, 271 P.2d 874 (and quoted in People v. Malouf, 135 Cal.App.2d 697, 706, 287 P.2d 834, 839) where the court said:
'[P]ossession of stolen property, accompanied by no explanation, or an unsatisfactory explanation of the possession, or by suspicious circumstances, will justify an inference that the goods were received with knowledge that they had been stolen.' (See also People v. Kefry, 166 Cal.App.2d 179, 190, 332 P.2d 848; People v. McFarland, 58 Cal.2d 748, 754, 755, 26 Cal.Rptr. 473, 376 P.2d 449; People v. Lyons, 50 Cal.2d 245, 258, 324 P.2d 556.)
Defendant was in possession of the stolen property under suspicious circumstances and there is affirmative evidence that defendant knew the property was stolen. This latter knowledge was also evident from defendant's statement admitted in evidence; thus defendant's contention that the court committed prejudicial error in admitting evidence of his admissions of receiving the stolen property in the absence of a corpus delicti is without merit.
Was defendant's right to a speedy trial violated by the continuance granted by the trial court?
The record discloses that on February 20, 1964, defendant and his counsel waived the statutory time for trial and the matter was reset for trial by jury on March 20, 1964. On this date defendant requested trial before the court without a jury and March 25, 1964, was set as the trial date and on which date the trial commenced. After an unsuccessful attempt by the People to introduce defendant's statement, the court granted a continuance of the trial to obtain the presence of a sheriff's officer, for whom a subpoena had been issued, whose testimony was necessary to show defendant's statement was voluntary and that defendant was in possession of the articles of stolen property. Defendant's counsel objected, but failed to move for a dismissal. The court, at this point, continued the trial until March 30, 1964, on which date final testimony was taken.
An order granting a continuance to the people may be attacked as error, on defendant's appeal from a judgment of conviction. The significant question is whether the defendant was prejudiced by it. (Cal.Const. art. VI, § 4 1/2.) If no showing of prejudice is made, an erroneous granting of a continuance is not reversible error. See People v. Wilson, 60 Cal.2d 139, 146, 32 Cal.Rptr. 44, 49, 383 P.2d 452, 457, stating: 'The right to a speedy trial, furthermore, will be deemed waived unless the defendant both objects to the date set and thereafter files a timely motion to dismiss.' 'A defendant's consent that his trial be set for a date beyond the limit prescribed [Cal.Const. art. I, § 13, and Pen.Code, § 1382 'is equivalent People v. Taylor
Article I, section 13, of our Constitution declares that 'In criminal prosecutions, in any court whatever, the party accused shall have the right to a speedy and public trial; * * *.'
Penal Code, section 1382 provides in relevant part that 'The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases:
On February 20, 1964, defendant, appearing with his counsel, waived the statutory time for trial and the court ordered the trial reset for trial by jury on March 20, 1964. The significant additional dates, to wit, March 20, 1964, when, at defendant's request, trial by jury was waived and the trial date was reset to March 25, 1964, and March 30, 1964, when the trial was concluded, all are within the time limits for trial required under the provisions of Penal Code, section 1382, subdivision 2, supra. The continuances granted to and including March 20, 1964, were with the consent of defendant and his counsel and his trial was concluded within 10 days of the date to which he had given his consent for trial.
The defendant has not shown any prejudice resulting from the trial continuance. If defendant's right to a speedy trial was erroneously denied the error would not require a reversal as the result has not been a miscarriage of justice. (People v. Allen, 220 Cal.App.2d 796, 34 Cal.Rptr. 106.)
Was defendant's statement admissible?
Defendant contends that the statement given to the prosecution was involuntary and its use in this case denied to defendant his federal and state constitutional rights of due process.
This contention is without merit.
Defendant voluntarily came to the sheriff's office, delivered to the inspector articles of the stolen property, and was advised that he was being investigated as a suspect in the burglary. At this point the investigation had focused on defendant, who thus contends that any incriminating statements given by him during his interrogation became inadmissible in the absence of counsel and by the failure to advise defendant of his right to an attorney and his right to remain silent, and relies upon the holding in People v. Dorado, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361, and in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.
We hold the the defendant was effectively advised of his right to remain silent and his statement was properly received. On voir dire examination of people's witness, Warren J. Warner, inspector of detectives, the following colloquy took place:
'BY S. CARTER McMORRIS, Esq., counsel appearing on behalf of the defendant.
'Q Now, Inspector Warner, you have stated that the statements made by this young man were free and voluntary, is that right?
'A They were.
'Q Let me ask you this. Before he made these statements, was he told by you or anyone in your presence what his constitutional rights were?
'A Would you clarify that, counselor?
'Q Yes. Was he told by you or by anyone in your presence that he had a right to counsel?
'A. He was advised at the time of the case under investigation, the charge that he was being investigated for was a burglary; he was also advised that it was not necessary for him to make a statement at this time unless he so wished. At this time he stated that he was aware that the other subjects involved had been picked up, and he 284 'MR. McMORRIS: I am going to ask that all be stricken except for the answer to my question, which was
'THE COURT: Overruled.
'MR. McMORRIS: Beg your pardon?
'THE COURT: Overruled.
'MR. McMORRIS: Q Did you--you stated that you told--I asked you if you told him he could have a lawyer. You haven't answered my question. Did you tell him he was entitled to have an attorney represent him at all times in this matter?
'A I don't recall advising him directly that he could have an attorney or he couldn't. I don't recall whether I specified to him.
'Q All right. Now, do you recall whether he was told that anything he might say could be used against him?
'A This he was advised of, yes.
'Q Who advised him of that?
'A I did.
'Q And you say he was also told he did not have to make any statement if he didn't care to?
'A Yes, sir, he was.' (Emphasis added.)
Were defendant's incriminatory statements admissible notwithstanding the failure of the officer to inform him explicitly of his right to counsel?
As said in Dorado, 62 A.C. at pages 357-358, 42 Cal.Rptr. at pages 173-175, 398 P.2d at pages 365-367: 'In a long series of cases that court [United States Supreme Court] has been troubled by confessions obtained without protection of counsel; this historic concern of the court culminated in two recent decisions: Massiah v. United States (1964) 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, and Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. * * * Massiah holds that the prosecution cannot introduce into evidence defendant's 'own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.' * * * Referring to Spano v. People of State of New York (1959), 360 U.S. 315, 79 S.Ct. 1202 [3 L.Ed.2d 1265], the court commented: 'It was said that a Constitution which guarantees a defendant the aid of counsel at * * * a trial could surely vouchsafe no less to an indicted defendant under interrogation by the police in a completely extrajudicial proceeding. Anything less, it was said, might deny a defendant 'effective representation by counsel at the only stage when legal aid and advice would help him.' 360 U.S., at 326, 79 S.Ct., at 1209, 3 L.Ed.2d 1265. (Douglas, J. concurring).' (Massiah v. United States, supra, 377 U.S. 201, 204, 84 S.Ct. 1199, 1202.)
'Escobedo recognizes that this critical stage may be reached before indictment. * * *
'The United States Supreme Court held that 'where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as 'made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainright, 372 U.S. , at 342, 83 S.Ct. , at 795 [9 L.Ed.2d 799], and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.' (Escobedo v. State of Illinois, supra, 378 U.S. 478, 490-491, 84 S.Ct. 1758, 1765.) In its conclusion the Id
This court is fully aware of the utmost importance to the police of the right to seek a confession as well as the need of the defendant, and his right to have counsel when legal aid and advice are most critical to him. We hold that when the right to counsel matures, that is, when the accusatory stage has begun, defendant must be advised of his right to counsel, even though defendant neither requests nor retains counsel, or of his right to remain silent. In Dorado (at p. 361, 42 Cal.Rptr. at p. 176, 398 P.2d at p. 368) the California Supreme Court says: 'The United States Supreme Court and other courts have recognized that in a situation in which a suspect has the constitutional right to counsel it cannot be lost because he did not request or retain counsel.'
A defendant may waive his right to the assistance of counsel, provided he knows of his right and intelligently and knowingly waives this right. Escobedo points out that an 'accused may, of course, intelligently and knowingly waive * * * his right to counsel either at a pretrial stage or at the trial.' (Escobedo v. State of Illinois, supra, 378 U.S. at p. 490, fn. 14, 84 S.Ct. at p. 1765.)
Defendant had the right to remain silent and he must waive that right if his self-incriminatory statements are to be admissible. In Dorado, supra, 62 A.C. at page 364, 42 Cal.Rptr. at page 178, 398 P.2d at page 370, the court stated: 'Escobedo also holds that the accused has the right not to incriminate himself and to remain silent, and that, if any self-incriminatory statements are to be admissible, he must waive that right. Such waiver presupposes knowledge of the right to remain silent; in the absence of such knowledge, the waiver requires a warning to the accused of that right.' (Emphasis added.)
The warning in this case was given.
For defendant's confession to be improperly admitted all of the factors set forth in Dorado had to be present:
First: That the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, and;
Second: The suspect was in custody, and;
Third: The authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements, and;
Fourth: The authorities had not effectively informed defendant of his right to counsel or of his absolute right to remain silent, and no evidence establishes hat he had waived these rights.
As we construe both Dorado and Escobedo the police need not adhere to a ritualistic repetition of a formula warning which includes both a statement of the right to counsel and the right to remain silent. Rather, it is enough if either warning is given in such manner that the arrested person is made aware that he is not required to make self-incriminatory statements to the police.
Prior to making the incriminating statement, defendant who was not then in custody and who had gone to the sheriff's office with his mother for the express purpose of making a statement and had brought the stolen goods with him, had been effectively informed of his absolute right to remain silent. Thus the introduction of the incriminating statement was proper and not in violation of a constitutional right.
The order is affirmed.
PIERCE, P.J., and FRIEDMAN, J., concur.
* * *
'2. When a defendant is not brought to trial in a superior court within 60 days after the finding of the indictment or filing of the information * * * except that an action shall not be dismissed under this subdivision if it is set for trial on a date beyond the 60-day period at the request of the defendant or with his consent, express or implied, * * * and if the defendant is brought to trial on the date so set for trial or within 10 days thereafter.'