408 P.2d 365 (Cal. 1966)
On January 3, 1964, defendants Gilbert and King, along with Edgar Ball Weaver, participated in a robbery of an Alhambra savings and loan association office.1 Gilbert and Weaver entered the bank armed with an automatic pistol and revolver.2 Gilbert threw a paper shopping bag at a teller and ordered it filled with money while Weaver covered the door.3 Gilbert forced an accountant to open the vault.4
When Alhambra Police Officer George Davis entered the bank with a shotgun and disarmed Weaver, Gilbert grabbed a woman teller.5 He pushed her toward the door while pointing his pistol at her head.6 Gilbert fired as they exited, mortally wounding Davis.7 Gilbert and Weaver fled in a white automobile that King had stolen earlier that morning.8 King had agreed to serve as getaway driver for payment.9 They later switched vehicles.10 Weaver was found semiconscious and bleeding in a crashed green automobile several blocks away.11
Weaver died in the hospital later that evening from a bullet wound.12 King drove Gilbert to his Glendale apartment where Gilbert discarded his pistol in an alley garbage can.13 Gilbert was arrested in Philadelphia on February 26, 1964.14 Law enforcement officers questioned King about the robbery on January 5 and January 10, 1964, when he denied knowledge.15 Officers arrested him on February 7 and took him to the Alhambra police station on February 11.16
After being booked on charges of murder, robbery, and kidnaping, King made detailed statements during a seven-hour interrogation session that were recorded without his knowledge.17 Officers entered Gilbert's apartment without a warrant shortly after 1 p.m. on the day of the robbery based on information from Weaver.18 They recovered a notebook containing a drawing of the Alhambra bank area, rolls of coins from the bank inside an Alpha Beta shopping bag, an ammunition clip from a .45 caliber automatic pistol, and a photograph of Gilbert.19 At trial both defendants were convicted on two counts of first degree murder, one count of first degree robbery, and four counts of kidnaping for the purpose of robbery.20 Gilbert's penalty was fixed at death on the murder counts and King's at life imprisonment.21 King appealed from the judgment and Gilbert's appeal was automatic.22
Whether King's detailed statements to police were obtained during a process of interrogation after the investigation had focused on him while he was in custody without advisement of rights to counsel and to remain silent?23
Incriminating statements are inadmissible if they were obtained when (1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements, (4) the authorities had not effectively informed defendant of his right to counsel or of his right to remain silent, and no evidence establishes that he waived those rights.24
Yes. King was arrested on February 7, 1964, and taken to the Alhambra police station on February 11 where he was booked on charges of murder, robbery, and kidnaping.25 The investigation had focused on him after prior questioning on January 5 and January 10.26 Officers took him into an interrogation room for a seven-hour session.27
The purpose was to elicit incriminating statements, as shown by the secret use of a tape recorder and the request for a formal statement for court use.28 No advisement of rights to counsel or to remain silent occurred at any time during the process.29
King's statements were obtained in violation of the rule and should have been excluded.30
Whether the erroneous admission of King's statements and resulting testimony was prejudicial to King's convictions?31
Error in admitting confessions elicited without warnings is not prejudicial when there are also in evidence equally damaging admissible confessions that were made before the police improperly elicited the inadmissible confessions.32 The error is prejudicial when the inadmissible statements are not merely cumulative and when the defendant's testimony cannot be segregated from the erroneously admitted statements.33
Yes. The booking officer testified only to conclusions drawn from King's volunteered statements rather than their details.34 Nothing in the record shows those statements were inconsistent with King's trial testimony that he lacked knowledge of the planned robbery until after it occurred.35 King's detailed inadmissible statements, including admissions of guilty knowledge, left him no choice but to take the stand to attempt to exculpate himself by testifying that he did not know Gilbert and Weaver intended to commit a robbery.36
The fingerprint on the shopping bag was the only other evidence connecting King to the crime before he testified.37 His testimony cannot be segregated from the erroneously admitted statements to sustain the judgment.38
The erroneous admission of King's statements and resulting testimony was prejudicial to King's convictions, requiring reversal.39
Related opinions on this issue
Joined by Justice Mccomb
Justice Mosk dissented from reversal of King's convictions other than count II.40 He emphasized that the trial court made a specific factual finding that King had no desire for counsel and that his statements were completely voluntary on his own volition.41 Mosk noted that King had known he was a suspect since January 5.42
King had been interviewed three times and had more than a month to obtain counsel yet chose to confess to cast blame on Gilbert.43 He viewed the entire process from booking through the interrogation room as one continuous voluntary narration driven by King's contrite frame of mind rather than police imposition.44 Mosk concluded the evidence including the statement amply supported the conviction.45
Whether the erroneous admission of King's statements and resulting testimony was prejudicial to Gilbert's convictions?46
The effect of an accomplice's statements as an accusation against a codefendant is vitiated by an instruction that the jury should not consider them as evidence against the codefendant.47 The codefendant's testimony is less damaging when the court instructs that it must be corroborated and viewed with distrust.48 Under such circumstances the statements and testimony are not prejudicial when there is overwhelming evidence of the codefendant's guilt.49
No. The trial court instructed the jury not to consider King's statements as evidence against Gilbert.50 King's testimony was less damaging than his statements.51 The court instructed that accomplice testimony must be corroborated and viewed with distrust.52 Eight witnesses present in the bank unequivocally identified Gilbert as one of the robbers.53
Incriminating evidence including a drawing of the Alhambra bank area with writing identified as Gilbert's was found in his apartment.54 There is no reasonable possibility that the error might have contributed to Gilbert's conviction.55
The erroneous admission of King's statements and resulting testimony was not prejudicial to Gilbert's convictions.56
Whether defendants could be convicted of first degree murder for the killing of their accomplice Weaver solely on the ground that the robbery was the proximate cause of his death?57
The felony-murder doctrine cannot be invoked to convict defendants of first degree murder for the killing of their accomplice unless a felon commits the killing.58 Malice aforethought cannot be imputed under that rule unless a felon commits the killing, although malice may be established when a defendant initiates a gun battle.59
No. The evidence would support a conviction on the ground that Weaver was killed in response to a shooting initiated by Gilbert.60 The court gave an erroneous instruction. Defendants could be convicted of murder for that killing without proof of malice and solely on the ground that they committed a robbery that was the proximate cause of their accomplice's death.61 This instruction withdrew from the jury the crucial issue of whether the shooting of Weaver was in response to the shooting of Davis or solely to prevent the robbery.62 Defendants have a constitutional right to have the jury determine every material issue presented by the evidence.63
Denial of that right was a miscarriage of justice.64
Defendants could not be convicted of first degree murder for the killing of their accomplice Weaver solely on the ground that the robbery was the proximate cause of his death. This requires reversal of count II as to both defendants.65
Whether the warrantless entry and search of Gilbert's apartment was reasonable as a search in fresh pursuit of escaping felons?66
A search without a warrant is reasonable when the officers enter in fresh pursuit of escaping felons to make an arrest.67 The officers must not be conducting a general exploratory search but must be searching for a suspect and the search must be limited to and incident to the purpose of entry.68 Officers may examine suspicious objects in plain sight while looking for the suspect.69
Yes. Officers identified Gilbert and learned his address less than two hours after the robbery.70 Upon arrival they learned one occupant had just left and reasonably assumed the third unaccounted-for robber was inside the apartment.71 The officers entered in fresh pursuit of two robbers who had escaped in the same automobile, not to make a general exploratory search.72
They looked through the apartment for the suspect and could properly examine suspicious objects in plain sight such as the notebook with the bank drawing and the Alpha Beta shopping bag containing rolls of coins.73 The search was properly limited to the purpose of entry.74
The warrantless entry and search of Gilbert's apartment was reasonable as a search in fresh pursuit of escaping felons, and the evidence obtained was properly admitted.75
Whether evidence that Gilbert was armed with a concealed deadly weapon at the time of his arrest was admissible at the guilt phase?76
Evidence that a defendant was armed with a concealed deadly weapon at arrest is admissible only upon the issue of the minimum penalty when the weapon is not identified as the one used in the crime.77 When the defendant stipulates to being armed at arrest for penalty purposes, no purpose is served by admitting the evidence at the guilt phase.78 The jury should be instructed that the evidence should not be considered as tending to prove guilt.79
No. The weapon found in Gilbert's possession when arrested in Philadelphia was not identified as the one used in the robbery.80 Such evidence could therefore be properly admitted only upon the issue of the minimum penalty.81 Gilbert was willing to stipulate to being armed at arrest for the purpose of the penalty, so no purpose was served by admitting the evidence.82 Evidence that a weapon was found tends to show only that the defendant is the sort of person who carries deadly weapons, not that he committed the crime.83
The error in admitting the testimony was not prejudicial.84
Evidence that Gilbert was armed with a concealed deadly weapon at the time of his arrest was not admissible at the guilt phase, but the error was not prejudicial.85
Whether the trial court erred in refusing to instruct the jury on the issue of bodily harm to a kidnaping victim for purposes of penalty determination?86
When the person kidnaped suffers bodily harm the penalty shall be either death or life imprisonment without possibility of parole.87 Trivial injury such as feeling impressions on the arm or falling down without evidence of injuries suffered is not sufficient to constitute bodily harm within the meaning of section 209.88
No. The victim testified that the grip on her arm was so firm that she felt the impressions for some time and that she was pushed toward the door and fell on the sidewalk.89 She was not sure whether she was pushed down and there was no evidence she suffered any injuries in falling.90 Such trivial injury is not sufficient to constitute bodily harm.91
The manager's testimony about the time Gilbert asked for the key did not tend to establish Gilbert was somewhere else when the robbery occurred. It merely cast doubt on the accuracy of her testimony.92 No alibi instruction was warranted either.93
The trial court did not err in refusing to instruct the jury on the issue of bodily harm to a kidnaping victim for purposes of penalty determination.94