People v. Candelario

California Court of Appeal Dec 27, 1965 No. Crim. 5003Published

Before: Devine

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Holding. The court held that the defendant was not entitled to counsel while committing a crime and that his statement, even if considered an admission, was not a prejudicial confession requiring reversal.

Issues

Whether the defendant was entitled to counsel and warnings under the Dorado and Massiah rules while under surveillance for a narcotics sale.
Whether the defendant's statement constituted a confession or an admission, and if the latter, whether it was prejudicial.

Disposition. affirmed

Quotations verified verbatim against the opinion

“One is not entitled to counsel while he is committing a crime.”

“If, however, we consider the answer to have been given concomitantly with the arrest, we hold that it was at most an admission and not a confession.”

“As an admission it would not produce reversal unless it were prejudicial.”

[69]

DEVINE, J.

The sole contention of appellant is that he was not advised of his right to counsel and to remain silent under the

Dorado

rule

(People

Dorado,

62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361]) as combined with the rule in

Massiah

United States,

377 U.S. 201 [84 S.Ct. 1199, 12 L.Ed.2d 246], It is unnecessary to give a detailed recitation of the facts. Briefly, they are similar to many others in cases in which an informer is used. Agents of the State Narcotics Bureau made arrangements for an informer to contact appellant and to try to negotiate a purchase of heroin. This was done successfully. The agents were listening to much of the conversation by the use of a Fargo communications system. The case does have one rather unusual fact (unusual at least as to the records which appear before us) in that Candelario, the appellant, being suspicious of the informer, insisted that the latter take a shot of heroin himself. This the informer did.

Appellant contends (1) that he was in a sort of custody during much of the period when he was under surveillance, as was Massiah, that suspicion had focused on him, and that the officers were attempting to get incriminating statements from him; and (2) that in any event a confession was obtained from him either immediately after his arrest or at the moment of arrest.

Appellant’s first point has been disposed of adversely to him in

People

Sogoian,

232 Cal.App.2d 430, 434 [42 Cal.Rptr. 736], and

Grier

People v. Candelario

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DEVINE, J.

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