People v. Neustice

Opinion

Defendant, by information filed March 13, 1970, in the County of Tulare, was charged with the murder of Louis Troyn in that

On September 22d, Chief Mendoza gave three Mexican officers, Carrillo, Granados and Cota, a picture of defendant, told them “to look for him for theft of a car and for homicide”; furnished them with a description of the car; and gave them “orders to go out and try and locate the stolen car.” The officers left forthwith in a truck and, as they approached San Quentin on a narrow roadway, came upon the stolen Buick being driven toward them. The truck and the Buick stopped. Officer Carrillo left the truck; went to the Buick; identified the driver as defendant; and told him “we had had information that that was a stolen car.” This was the beginning of a series of eight conversations in which defendant made incriminating statements including confessions of the murder of Troyn which defendant contends are not admissible under the exclusionary rules stated and applied in Miranda v. State of Arizona, 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ], Escobedo v. Illinois, 378 U.S. 478 [ 12 L.Ed.2d 977 , 84 S.Ct. 1758 ] and People v. Dorado, 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ].

The court passed upon the admissibility of the statements in question following a hearing outside the presence of the jury pursuant to Evidence Code sections 402 and 405; concluded defendant’s objections were not well taken; and admitted all the statements except those given in response to an interrogation to which defendant objected.

After Carrillo told defendant the officers had information he was driving a stolen car, he said it seemed strange to him it took three officers to look for a stolen car, and volunteered the statement: “I think that it isn’t for the car. It is for the little old man that I threw over there in Tulare.” Following this, Granados and Cota came up to the Buick, and were present when defendant alighted; was searched by Carrillo; and during the search volunteered the further statement: “. . . he knew that the reason—that the reason wasn’t for the theft of the car that three officers had—were there, he said that he thought that the reason was because he had finished off or done in a little old man in Tulare.”

Defendant told the officers he was a Mexican citizen, having been bom in Mexico, as well as an American citizen. There was testimony under the law of Mexico a Mexican citizen may be tried in Mexico for the offense of murder or theft committed in the United States. Defendant was held in custody under this law pending an investigation to corroborate his statement he was born in Mexico.

After the three officers and defendant arrived in Ensenada all of them went to an office where they had coffee and, as testified by Officer Granados, defendant “talked to us during the time we were drinking coffee, that is, Mr. Moreno [Moreno Neustice] was talking, talking about the history of the homicide of the old man. ... He repeated to us what he had already told us in the pickup, that he had killed that man over there in Tulare, to rob him of some money, and he talked in more detail that he had killed him with a pipe of a type, and that he had thrown the pipe away with which he had hit him in the head. And he repeated to us all of the history referring to the little old man.” The foregoing statement was volunteered. During the latter part of this confession Chief Mendoza came into the room and ordered an “official declaration” be taken. Thereupon Chief Arceo was advised of the statements made by defendant; asked defendant if his statements were put in writing would he sign such; and upon receiving an affirmative reply, instituted the taking of the “official declaration.” The services of a typist were obtained; defendant was told “to tell everything about the way he killed the man.” His statement of the incidents preceding, attendant upon and following the killing again was related in detail. The typist copied them in writing; the writing was signed by defendant and by the three officers, Carrillo, Granados and Cota.

All of the foregoing statements were made on September 22. On September 23, Deputy Sheriff Bryant caused $100 to be wired to Chief Arceo for investigation fees. On September 24, Deputy Sheriffs Bryant and Flores returned to Ensenada, apparently learning defendant had been taken into

The Mexican officials in Ensenada referred the matter to the federal district attorney, sending him the original written statement signed by defendant, i.e., the “official declaration,” and other official documents. On September 26, the federal district attorney and an assistant to the federal district attorney, interviewed defendant in the federal district attorney’s office in Ensenada. Statements made during the interview were recorded by a typist. At this time defendant was being held under Mexican law upon the assumption he was born in Mexico and, for this reason, was a Mexican citizen. The typewritten statement was a repetiton of the facts contained in previous statements constituting a confession of the offense of murder. Each page of the statement was signed by defendant.

Defendant was not prosecuted in Mexico because it was determined he had not been bom in Mexico.

On October 1, 1968, defendant was taken into custody by agents of the Federal Bureau of Investigation and delivered to a United States Marshal. His arrest occurred in the United States when he was deported from Mexico by the Mexican authorities. At this time, as heretofore noted, he was wanted on an indictment for inducing the illegal entry of aliens and transporting aliens into the United States; had “jumped bail” posted to obtain his release from detention under that indictment; and also, was wanted for the offenses of inducing the entry of illegal aliens, smuggling aliens and transporting aliens into the United States on July 30 and 31, 1968, and for the offense of transporting a stolen automobile from the United States into- Mexico, i.e., the murder victim’s automobile, occurring on September 3, 1968. Indictments for the immigration offenses occurring July 30 and 31, 1968 and for the transportation of a stolen automobile offense were returned October 23, 1968.

The United States Marshal, following defendant’s arrest on October 1, 1968 by agents of the Federal Bureau of Investigation, caused him to be detained in the county jail at San Diego. On the same day defendant was interviewed by agents of the Federal Bureau of Investigation; was given an oral Miranda warning; also was given a copy of a written Miranda warning which he read and signed; and in response to inquiry by the agents, related

Defendant had been interviewed by an F.B.I. agent on August 2, 1968, prior to his release on bail, and had been given a Miranda warning at that time.

The court found specifically none of the statements by defendant were the product of any threat, coercion, promise of immunity or reward or “ ‘were in any respect involuntary.’ ” In addition to the facts specifically found, implied in the order admitting in evidence defendant’s statements is every fact supported by substantial evidence essential to sustain the order. (Griffith Co. v. San Diego Col. for Women, 45 Cal.2d 501 , 507-508 [ 289 P.2d 476 , 47 A.L.R.2d 1349 ]; Estate of Rule, 25 Cal.2d 1 , 10 [ 152 P.2d 1003 , 155 A.L.R. 1319 ].)

The statements made when defendant first was contacted by Officer Carrillo, in the presence of the three officers while being searched for weapons, while being transported to Ensenada in the police truck, and when he was having coffee with the three officers at the police station in Ensenada, were volunteered; were not the product of an interrogation; and were not inadmissible under the Miranda-Escobedo-Dorado exclusionary rule. Statements volunteered by a defendant, even though'made before he has been given a Miranda warning and while in custody, are admissible in evidence. (Miranda v. State of Arizona, 384 U.S. 436 , 478 [ 16 L.Ed.2d 694 , 726, 86 S.Ct. 1602 , 1630, 10 A.L.R.3d 974 ]; People v. Randall, 1 Cal.3d 948 , 955-956, fn. 7 [ 83 Cal.Rptr. 658 , 464 P.2d 114 ]; People v. Ireland, 70 Cal.2d 522 , 536 [ 75 Cal.Rptr. 188 , 450 P.2d 580 ]; People v. Fioritto, 68 Cal.2d 714 , 718 [ 68 Cal.Rptr. 817 , 441 P.2d 625 ]; People v. Tremayne, 20 Cal.App.3d 1006 , 1019 [ 98 Cal.Rptr. 193 ]; People v. Stewart, 267 Cal.App.2d 366 , 377 [ 73 Cal.Rptr. 484 ]; People v. Ashford, 265 Cal.App.2d 673 , 685-686 [ 71 Cal.Rptr. 619 ]; People v. Walters, 252 Cal.App.2d 336 , 338 [ 60 Cal.Rptr. 374 ].) The statements referred to as an “official declaration” made in the presence of Chief of Police Arceo and Chief of Detectives Mendoza, which were reduced to writing and signed by defendant, and the statements made in the presence of the federal district attorney and his assistant which were reduced to writing and signed

The statements made in response to interrogation by the deputy sheriffs and by the agents of the Federal Bureau of Investigation, in each instance, followed a Miranda warning. Defendant’s claim these statements are inadmissible is premised on the contention they were the product of alleged inadmissible statements made to the Mexican authorities. The conclusions heretofore expressed foreclose this claim.

The court properly held the statements made to the deputy sheriffs after defendant had indicated his refusal to answer further questions were inadmissible.

Not raised by either party is the question whether defendant’s re

During cross-examination of a prosecution witness a question was asked in response to which the court said: “That is an embarrassing question to ask.” The witness answered the question, which was argumentative. No objection to the comment was made. No error occurred.

Defendant also contends he was denied the opportunity to rebut the prosecution’s contention his statements to the Mexican officers were volunteered because: (1) The court refused admission of an alleged impeaching statement by Officer Cota respecting the source of a “report” by him, upon the ground it was not impeaching or contradictory. The identity of the “report” in the alleged impeaching statement as one of the two reports the officer referred to in his testimony was not established. No error occurred. (2) The court refused defendant’s request for permission to produce additional evidence after all parties had rested and the jury had been instructed. The offered evidence was immaterial and irrelevant. No error occurred. (3) Defendant was denied the opportunity to testify at the hearing respecting the admissibility of the incriminating statements he made to the Mexican authorities, the deputy sheriffs and the agents of the Federal Bureau of Investigation because his counsel did not advise him he could testify at this hearing without waiving his right not to testify at the trial, relying upon the decision in Simmons v. United States, 390 U.S. 377 , 394 [ 19 L.Ed.2d 1247 , 1259, 88 S.Ct. 967 , 976], The record does not show defendant was not advised of his right in the premises. He was represented by able counsel; the claimed denial of an opportunity to testify at the hearing in question is without merit.

Defendant moved for a new trial and in the alternative for a reduction in the degree of the offense of which he was found guilty. His motion was denied. He contends, in substance, the evidence as a matter of law dictates the conclusion, under the doctrine of diminished capacity, he

After the jury returned its verdict finding defendant guilty of murder in the first degree he, personally and through his attorney, withdrew his plea of not guilty by reason of insanity. Following this, the court indicated unless there was more evidence than that relied upon to show diminished mental capacity, the showing made would not support a finding of not guilty by reason of insanity. Contrary to defendant’s contention, the court’s comment did not cast a doubt on whether he clearly and voluntarily withdrew his plea. Defendant, on advice of his counsel, did not communicate with the psychiatrist appointed by the court in connection with the issues raised by his plea of not guilty by reason of insanity, to protect his right against self-incrimination. This advice was premised upon the decisions in In re Cowans, 2 Cal.3d 733 , 737 [ 87 Cal.Rptr. 499 , 470 P.2d 635 ] and In re Spencer, 63 Cal.2d 400 , 408 [ 46 Cal.Rptr. 753 , 406, P.2d 33], holding incriminating statements made to a court-appointed psychiatrist were admissible at the guilt stage of the proceeding. As a result, the court-appointed psychiatrist did not examine defendant for the purpose of testifying and forming an opinion on his sanity at the time of the killing. Defendant argues: (1) His refusal to communicate with the court-appointed psychiatrist to protect his right against self-incrimination at the guilt stage of the trial should not operate as a waiver of his right to assert the defense of not guilty by reason of insanity; and (2) the comment by the court unless there was more evidence of insanity than that produced on the diminished mental capacity issue, the showing would not support a finding of insanity, in effect is a ruling defendant had waived his right to a determination of the issue raised by his plea of not guilty by reason of insanity. The fallacies in this argument are: (1) Defendant withdrew his plea of not guilty by reason of insanity before the court made the comment in question;- (2) there is no showing his withdrawal of this plea was premised on the claimed fact the only evidence he might introduce in support of his insanity defense was the evidence of the psychiatrist who testified on the issue of diminished capacity; and (3) he did not request an examination by the court-appointed psychiatrist after the jury’s verdict on the guilt phase of the trial and before the insanity phase of the trial. We conclude defendant’s withdrawal of his plea of not guilty by reason of insanity was voluntary and was not the

Defendant further contends, in substance, the action of his counsel in consenting to withdrawal of his plea of not guilty by reason of insanity constituted denial of assistance of counsel, which requires a reversal.' The reasons prompting defendant and his counsel to withdraw his plea are not stated. We may not conjecture they were not cogent. There was no showing defendant was denied assistance of counsel.

The judgment is affirmed.

Brown (Gerald), P. J., and Ault, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied May 18, 1972.