People v. Farris

People v. Gastelum (1965) 237 Cal.App.2d 205 [ 46 Cal.Rptr. 743 ] discusses the admission into evidence of a defendant’s responses to questioning by his parole officer without prior advice of his rights to coúnsel and to remain silent, as then required by People v. Dorado (1965) 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ]. Page 209 states that “The only novel question is whether, by analogy to the rule on search and seizure, defendant’s status as a parolee negatived his constitutional right to be advised of his right to counsel or to remain silent. The Supreme Court, in People v. Dorado, supra, upheld the right of a felon incarcerated in the state prison to be ‘effectively informed’ of his right to counsel and of his ‘absolute right to remain silent’ under the Fifth Amendment. Certainly a parolee in constructive custody is no less entitled to these constitutional rights than is a felon in actual custody.” Mathis v. United States (1968) 391 U.S. 1 [ 20 L.Ed.2d 381 , 88 S.Ct. 1503 ] holds that if a prisoner in a state prison is not first given warnings of his right to remain silent and right to counsel before being interrogated regarding another case, his responses are not admissible.

In accord is In re Martinez, supra, 1 Cal.3d 641 , which states that “.. . the defendant’s parole status, of course, did not permit the police to interrogate the defendant in connection with the suspected criminal activity without first apprising him of his constitutional rights. The strictures of Dorado apply whenever the police initiate custodial interrogation in connection with their investigation of a new criminal matter; indeed, in Dorado itself, the defendant was an incarcerated prisoner, who had allegedly committed a crime within the prison and who was interrogated by prison officials. [Citation.] The Fifth Amendment rights of parolees equally demand these protections. [Citations.] Thus the statements elicited from defendant Martinez in the instant case were

It is settled in this state that custodial interrogation appears not only when a person is in fact deprived of his freedom in any significant way, but also when as a reasonable person he is led to believe that his freedom of movement has been restricted by the pressures of official authority. (People v. Arnold (1967) 66 Cal.2d 438 , 448 [ 58 Cal.Rptr. 115 , 426 P.2d 515 ]; People v. Blouin (1978) 80 Cal.App.3d 269 , 283 [ 145 Cal.Rptr. 701 ]; People v. Wilson (1968) 268 Cal.App.2d 581 , 585-586 [ 74 Cal.Rptr. 131 ].)

As a condition of his parole, defendant herein had consented to a search not only of his residence but also of his person. His parole officer could take him into detention at any time. It goes without saying that, as in People v. Wilson, supra, 268 Cal.App.2d 581 , he was not free to leave while his bedroom was being searched. Had that search proved fruitless, he himself was a potential subject for search. He knew that. From the time that Price and Hooper arrived, defendant was obviously deprived of his freedom in a significant way.

Oregon v. Mathiason (1977) 429 U.S. 492 [ 50 L.Ed.2d 714 , 97 S.Ct. 711 ] is distinguishable. In response to a telephone call, the defendant therein voluntarily came to a police station for questioning about a burglary, was immediately informed that he was not under arrest, and left without hindrance at the close of his interview. His freedom to depart was not restricted in any way. The opinion holds Miranda to be inapplicable because Mathiason was not “deprived of his freedom of action in any significant way.” (429 U.S. at p. 495 [50 L.Ed.2d at p. 719].)

People v. Robinson (1969) 1 Cal.App.3d 555 [ 81 Cal.Rptr. 666 ] is likewise distinguishable in that at the time of the questioning therein the police officer didn’t know, and had no reasonable basis to believe, that the objects he found in the defendant’s possession were stolen. Just the opposite is true herein.

In re Richard T. (1978) 79 Cal.App.3d 382 [ 144 Cal.Rptr. 856 ] reached a different result because there the parole officer was investigating only a violation of a parole condition which was not a crime (possession in his home of a gun) and only incidentally discovered the crime (that the gun was stolen). Herein, the parole agent at all times

In Harris v. New York (1971) 401 U.S. 222 [ 28 L.Ed.2d 1 , 91 S.Ct. 643 ], the United States Supreme Court ruled that trustworthy custodial statements made without prior Miranda warnings were admissible to impeach a defendant, if accompanied by an appropriate jury instruction, but not as evidence of guilt. The opinion notes that it is one thing to say that the government cannot make an affirmative use of evidence unlawfully obtained, but “quite another to say that the defendant can turn the illegal method by which evidence . .. was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths.” (401 U.S. at p. 224 [28 L.Ed.2d at p. 4].)

“Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.

“Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. [Citations.] Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process.” (401 U.S. at p. 225 [28 L.Ed.2d at p. 4].)

“The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” (401 U.S. at p. 226 [28 L.Ed.2d at p. 5].)

The California Supreme Court has refused to follow Harris v. New York, supra, and has held that the privilege against self-incrimination of article I, section 15, of the California Constitution “precludes use by the prosecution of any extrajudicial statement by the defendant, whether inculpatory or exculpatory, either as affirmative evidence or for purposes of impeachment, obtained during custodial interrogation in violation of the standards declared in Miranda and its California progency. ... Harris is not persuasive authority in any state prosecu

People v. Disbrow, supra, 16 Cal.3d 101 , can be distinguished because it involved prior inculpatory admissions which a jury might view as evidence of guilt even in the face of a limiting instruction (16 Cal.3d at p. 112), whereas that danger is absent from the case at bar which instead involves prior exculpatory statements. However, People v. Rucker, supra, 26 Cal.3d 368 , emphatically reminds us that “if there has been a failure to comply with Miranda's safeguards, ‘any [resulting] extrajudicial statement by the defendant, whether inculpatory or exculpatory,’ is inadmissible ‘either as affirmative evidence or for purposes of impeachment.’” (26 Cal.3d at p. 390; italics in original.) As an intermediate appellate court, we are bound by these authoritative rulings.

The erroneous admission herein of defendant’s impeaching answers was clearly prejudicial as it damaged his uncorroborated alibi testimony. It compelled him to admit that he had lied to the officers during the search. This alone may well have caused the jury to reject his entire testimony.

Regarding the pretrial view of a photographic lineup by prosecution witnesses (People’s trial exhibit 5), we find nothing impermissibly suggestive or improper, nor do we find error in the use of the corporeal lineup.

The case is reversed and remanded for further proceedings consistent with this opinion.

Files, P. J., and Kingsley, J., concurred.

Respondent’s petition for a hearing by the Supreme Court was denied July 30, 1981. Mosk, J., and Richardson, J., were of the opinion that the petition should be granted.