Opinion
EVANS, J. The People have petitioned for a writ of mandate directing that the respondent court annul its order suppressing oral admissions and confessions made by real party in interest, Bruce Lee Crook (hereinafter [338]defendant). The order of suppression found the confessions and admissions to have been given in reliance upon an offer of immunity from the prosecution.
Defendant and Anthony Trexler were suspected of burglarizing a number of service station drop safes; Trexler was also believed to be involved in a number of other criminal activities then under investigation. A number of search warrants had been issued authorizing a search of vehicles earlier observed at one of the burglarized service stations; defendant was observed driving one of the described vehicles and was stopped by a sheriff’s deputy, accompanied by District Attorney Maloney. Crook advised the officer that he wished to speak to the district attorney, and when approached by Maloney, stated that he would like to discuss the matter and offered, “ \\ . I didn’t really have nothing to do with this thing and I don’t want to take the heat.’. . . ‘I’d like to tell you about it.’ ” Following some discussion, defendant agreed to and did continue the interrogation at the sheriff’s substation. At the interrogation, FBI Agent Ott and Agent Garby from Southern Pacific Railroad, as well as other sheriff’s officers, were present because of Trexler’s other activities involving an attempt to wreck a passenger train and rob the passengers. Defendant was given a Miranda warning (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]), but before any questioning commenced, the district attorney offered him immunity from prosecution for information relating to the service station burglaries.
At the hearing on the motion to suppress, the district attorney testified that defendant was advised that he did not have prosecution immunity for any other crimes which might be disclosed during the questioning. The defendant was asked if he understood the nature of the immunity offered, and indicated that he did and agreed to continue his discussions with District Attorney Maloney and the sheriff’s deputies. The record indicates that the terms of the offer were repeated to defendant several times during the course of the interrogation, after which the defendant gave detailed information relating to the service station burglaries.
During the questioning, the district attorney was informed that a search of a trailer belonging to Trexler had disclosed items taken in a burglary perpetrated at the Vereschagin residence. The district attorney then concluded the questioning relating to the service station burglaries by asking defendant, “you know while we are talking under immunity is there anything else that you have to say to us, and we have been talking about the theft?” Defendant replied in the negative and the district [339]attorney then stated, “all right, there is another matter that we would like to discuss with you, however, it is not included in the immunity, you have no immunity for it. You don’t have to talk to us about it if you don’t want to.” The district attorney testified that defendant advised his interrogators that he knew about the Vereschagin burglary, and although again admonished that he did not have to talk to them if he didn’t wish and that any such discussion would not be within the offer of immunity, he agreed to and did discuss in detail the Vereschagin burglary.
After these discussions, the deputy sheriffs were asked by the district attorney to obtain a taped statement from defendant relating to the matters discussed. Defendant was again advised of his Miranda rights and advised that immunity did not apply to any transaction discussed except the service station burglaries. Detective Catrone and Sergeant Roberts then obtained a taped statement from Crook about the service station burglaries as well as the Vereschagin burglary. On the taped interrogation, defendant acknowledged his participation in both.
The first of two taped statements related to the Vereschagin burglary, and at the outset of the questioning, defendant was again advised of his Miranda rights. At the conclusion of that tape, defendant acknowledged that the statement was made of his own free will and that he had not been offered immunity for the statement. The defendant described in detail his involvement in the Vereschagin burglary, how it was accomplished, and what was taken.
The second statement, taken approximately 10 minutes later, related to the service station burglaries; again, the defendant was advised of his Miranda rights and informed that he was within the immunity granted from prosecution for those burglaries. Defendant then gave detailed information relating to the service station burglaries, how they were accomplished, and the extent of his participation.
He was thereafter charged by information with the burglary of the Vereschagin property, and the motion to suppress all statements, confessions, and evidence relating to the Vereschagin burglary was made.
Although the grant of immunity offered by the district attorney was not formalized pursuant to Penal Code section 1324, the trial court correctly concluded that the district attorney has the inherent power to grant a general or limited immunity without complying with the formalities of that section. (People v. Label (1974) 43 Cal.App.3d 766, 774 [119 Cal.Rptr. 522].) However, failing to find the immunity to be limited [340]in nature, the court, in suppressing the confession and all resulting evidence relating to the Vereschagin burglary, stated in part, “The failure of the prosecutor to comply with the statute in offering limited immunity however puts a great burden on the People to establish the extent of the immunity so offered. Without regarding the effectiveness of the immunity allegedly offered to the Defendant in the instant case, the offer made by the prosecutor for the advantage of the accused would clearly lend itself as the motivating cause for the Defendant’s statement implicating himself in the various and sundry burglaries, including the burglary which he is currently charged with. Furthermore, the limitations imposed on the offer of immunity, being limited to the greater or lessor [s/c] recollections of the various witnesses, are not so clearly set forth as to preclude the Court from considering that the motivating cause for the Defendant’s incriminating statements was in fact the original offer of immunity.”
I
We acknowledge and affirm that when there is a conflict in the evidence as to whether a confession has been freely and voluntarily made, the determination of the trial court, when supported by substantial evidence, is binding upon the appellate court. (People v. Dyer (1963) 217 Cal.App.2d 176, 181 [31 Cal.Rptr. 557].) However, in the instant proceeding, we fail to find any evidence, let alone substantial, to support the trial court’s order. The record reveals no evidence conflicting with that presented by the prosecutor. It leads us to conclude that the trial court unjustifiably ignored the testimony of the several witnesses who affirmed the limits of the offered immunity; we also conclude that in suppressing the confession, the court erroneously relied upon statements contained in People v. Fleming (Cal.App.) that if a limited offer of immunity is not made in accordance with Penal Code section 1324, complete transactional immunity is afforded. People v. Fleming is no longer binding decisional authority or precedent, having been ordered removed from publication by the Supreme Court on September 8, 1976, approximately one year prior to the trial court’s suppression order. (Cal. Rules of Court, rule 976.)
The entire evidence presented in connection with defendant’s motion to suppress consists of the testimony of the district attorney, an FBI agent, a Southern Pacific agent, and sheriff’s officers who were present when defendant was repeatedly advised that the offered immunity related only to the service station burglaries and not to the Vereschagin burglary. Each
[341]witness testified that defendant nevertheless detailed his participation in the Vereschagin burglary. The sole articulated contradiction to this mass of evidence (including the cassette tape recording which specified the nature of the immunity offered) was defense counsel’s opening and concluding unsworn statements preliminary to and following the suppression motion, neither of which may be considered probative evidence.
Thus, the totality of the evidence reveals a grant of limited immunity which, although not formalized pursuant to Penal Code section 1324, was within the inherent power of the prosecuting authority to grant. {People v. Bateman (1926) 80 Cal.App. 151, 155 [251 P. 335]; People v. Label, supra, 43 Cal.App.3d at p. 774; People v. Pineda (1973) 30 Cal.App.3d 860, 867-868 [106 Cal.Rptr. 743]; People v. Brunner (1973) 32 Cal.App.3d 908, 915 [108 Cal.Rptr. 501].)
II
Inasmuch as we conclude that the immunity offered and granted was limited in its scope to the service station burglaries and did not encompass any other criminal activity, we next consider the voluntariness of the confession or statement. Such confession or statement is voluntary when it is the product of a rational intellect and a free will. (Davis v. North Carolina (1966) 384 U.S. 737, 739 [16 L.Ed.2d 895, 896-897, 86 S.Ct. 1761].) In inquiring into the voluntariness of the defendant’s confession, we have examined the totality of the circumstances surrounding the conduct of the representatives of the state. We have considered facts such as the length of the questioning, the nature of the interrogation, the conduct of the defendant and of those in position of authority. All are relevant in determining whether the defendant’s free will was overborne. (People v. Stewart (1965) 62 Cal.2d 571, 579 [43 Cal.Rptr. 201, 400 P.2d 97].) The evidence reveals a complete and absolute voluntariness of the statements made by defendant and that they were given without reservation, without promise of immunity, and without fear or threat of violence. As such, the respondent court erroneously suppressed the confession of defendant’s involvement in the Vereschagin burglary.
Let a peremptory writ of mandate issue ordering the respondent superior court to vacate its suppression order issued on August 17, 1977, in Glenn County Superior Court action Number 15947, and further directing it to enter an order denying the motion to suppress.
Paras, Acting P. J., concurred.