6 Cal. 3d 375, 99 Cal. Rptr. 1, 491 P.2d 793 (1971)
Defendant Bozzie Bryant Burton III, a sixteen-year-old minor, faced charges by information with two counts of murder under Penal Code section 187 and one count of assault with intent to commit murder under Penal Code section 217.1 Following a jury trial, he was convicted on two counts of first-degree murder and guilty of the lesser included offense of assault under Penal Code section 240.2 The court imposed the term prescribed by law on the murder counts and 180 days in county jail on the assault count, with sentences running concurrently.3 Defendant appealed from the judgment of conviction.4
On December 13, 1968, at 9:15 p.m., Vicky Price sat in her parked car at a Compton shopping center when defendant approached on the driver's side, placed a gun to her head, and ordered her out.5 As she attempted to comply, the gun discharged and wounded her, after which defendant fled.6 Six days later on December 19, 1968, around noon, the bodies of Joseph and Isabelle Diosdado were discovered on the floor of the back room in their Compton feed store, each having been shot twice with the cash register empty and coins scattered on the floor.7 The bullet recovered from Vicky Price and those removed from the Diosdados were all fired from the same gun.8
On February 14, 1969, at 7 a.m., defendant was arrested and transported to the Compton police station.9 He underwent booking procedures for thirty to forty minutes before being moved to another cell for questioning.10 During booking, his father arrived at the station and requested to see him, but the request was denied.11 Defendant subsequently made statements on three separate occasions in which he admitted shooting Vicky Price while under the influence of marijuana, admitted being present at the Diosdado shootings but initially denied responsibility, and finally admitted shooting the Diosdados with detailed circumstances.12
When the case was called for trial, defendant moved pursuant to Evidence Code section 405 to exclude the confession on grounds that it was involuntary and illegally obtained in violation of Miranda v. Arizona.13 A hearing occurred prior to jury selection, at which defendant testified that upon arrival he asked to see his parents and was refused, testimony that remained uncontradicted.14 The trial judge found that the People had met its burden of showing the confession was voluntary, not coerced, and not illegally obtained, leading to its admission over objection.15
Whether a minor's request to see his parents, made at or near the commencement of custodial interrogation, constitutes an invocation of the Fifth Amendment privilege against self-incrimination under Miranda v. Arizona?16
Under Miranda v. Arizona, if an individual indicates in any manner at any time prior to or during questioning that he wishes to remain silent, the interrogation must cease, and any statement taken after invocation cannot be the product of free choice; no particular form of words is required, and words or conduct that reasonably appear inconsistent with a present willingness to discuss the case freely must be treated as an invocation, with the People bearing the burden to show otherwise.17
Yes. The established facts show that defendant, a sixteen-year-old minor, testified without contradiction that upon arrival at the Compton police station he asked to see his parents and was refused, that this request occurred just prior to interrogation while his father was present at the station, and that after the denial police advised him of his Miranda rights, obtained a waiver, and secured three successive confessions.18 These facts establish that the request reasonably appeared inconsistent with a present willingness to discuss the case freely at that time, triggering the protective device of Miranda as elaborated in People v. Fioritto, People v. Ireland, and People v. Randall, because a minor's call for parental help functions equivalently to an adult's request for counsel.19 The trial court's finding that the confession was voluntary did not address this invocation question, and the People offered no affirmative proof that the request was not an assertion of the privilege.20
Therefore the subsequent questioning violated the rule that interrogation must cease upon invocation, rendering the confessions inadmissible.21
The minor's request to see his parents constituted an invocation of the Fifth Amendment privilege, so the confessions were inadmissible and their admission requires reversal.22
Related opinions on this issue
Justice McComb dissented from the judgment of reversal.23 His position rested on the analysis contained in the Court of Appeal opinion prepared by Justice Allport.24
That opinion was filed June 17, 1971 and certified for nonpublication.25 By adopting the lower court's reasoning, Justice McComb rejected the majority conclusion that the request to see parents invoked the Fifth Amendment privilege. He would have upheld admission of the confession and sustained the felony-murder convictions without finding reversible error.26
Whether armed robbery, as an offense included in fact within murder, can support a first-degree felony-murder instruction?27
The felony-murder rule applies to homicides resulting from the commission of one of the six felonies enumerated in Penal Code section 189, including robbery.28 Those felonies carry an independent felonious purpose separate from the homicide itself.29 The rule does not extend to felonies such as assault with a deadly weapon that are integral to and included in fact within the homicide under the holdings of People v. Ireland and People v. Wilson.30
No. The established facts demonstrate that defendant was convicted of first-degree murder on the basis of a felony-murder instruction predicated on armed robbery.31 The Diosdado killings occurred during the course of a robbery in which the cash register was emptied.32 The same gun was used in both the Price assault and the Diosdado murders.33 These facts place the conduct squarely within the independent felonious purpose of robbery rather than a single course of conduct whose purpose was assault with a deadly weapon.34
The instruction therefore properly imputed malice. It classified the killings as first-degree murder under Penal Code section 189.35 This did not run afoul of the Ireland-Wilson limitation, which applies only when the underlying felony is assault with a deadly weapon or burglary committed solely to commit such an assault.36
Armed robbery can support a first-degree felony-murder instruction when the evidence shows an independent felonious purpose.37
Whether Evidence Code section 405, by assigning final determination of a confession's voluntariness to the trial judge, violates a defendant's right to trial by jury under article I, section 7 of the California Constitution?38
Evidence Code section 405 assigns the determination of a confession's voluntariness exclusively to the trial judge.39 It is unrealistic to expect a jury to disregard a confession it believes to be true even if found involuntary.40 This procedure receives tacit approval from the United States Supreme Court in Jackson v. Denno while protecting the defendant more effectively than the former rule that allowed jury reconsideration.41
No. The established facts show that defendant moved under Evidence Code section 405 to exclude the confession on involuntariness and Miranda grounds, that the trial judge conducted a hearing prior to jury selection and found the confession voluntary, and that the judge did not instruct the jury to make its own voluntariness determination.42 These facts align with the legislative determination, explained in the committee comment to section 405, that the question of voluntariness inevitably merges with the question of guilt and that shifting fact-finding responsibility to the jury provides less protection; the procedure is therefore consistent with article I, section 7 and does not remove any substantive matter from the jury's province.43
Evidence Code section 405 does not violate the state constitutional right to jury trial.44
Whether the trial court's instruction on proof of intent conflicted with the instruction on diminished capacity?45
When an instruction on proof of intent limits lack of sound mind to idiocy, lunacy, or insanity and directs the jury to assume the defendant is sane, while a diminished-capacity instruction correctly permits consideration of substantially reduced mental capacity from any cause to negate specific mental states, a potential conflict exists that could mislead the jury, although the court need not decide whether the conflict is fatal in the present case.46
Yes. The established facts show that the trial court gave CALJIC No. 73 on proof of intent, which limited lack of sound mind to idiots, lunatics, or the insane and directed the jury to assume defendant was sane, together with CALJIC No. 305.1 on diminished capacity, which properly allowed consideration of substantially reduced mental capacity from mental illness, intoxication, or any other cause to negate premeditation, deliberation, or malice.47 These instructions created a potential conflict that could mislead the jury on the effect of diminished capacity.48 For guidance on retrial the court directs attention to the revised CALJIC instructions that delete the problematic paragraph and leave soundness of mind undefined.49
The instructions on proof of intent and diminished capacity created a potential conflict requiring corrective guidance on retrial.50