People v. Hodge

BRAY, J.* Defendant appeals from conviction, after jury verdict, of violation of section 459, Penal Code (first degree burglary).

Question Presented

Did the trial court err in admitting a confession allegedly obtained in violation of Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758], People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], and Miranda v. Arizona (1966) 384 U.S. 4361 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974].

[660]Evidence

At approximately 6:30 or 7 p.m. on a Friday, Joseph McDevitt, wife and children, left their Piedmont home for the weekend. Two days later, at approximately 10 p.m., they returned. Mrs. McDevitt noticed that the front door of the house was ajar and a piece of furniture had been placed near that door. She then noticed two men coming through the back by a path leading from the family room. When she asked who they were, they did not reply but continued on. She called to her husband to stop them. McDevitt then saw one man run down the street and the other run across the street. McDevitt yelled to the first man to stop and then pursued the second man, running across the street to intercept him. Although the man ultimately escaped, McDevitt was within 20 feet of him at one point of the chase. He identified the man as defendant.

Certain property had been taken from the home and other property placed in a position to be taken. The french doors in the family room were ajar and the glass in the doors was broken. The door in a service area behind the kitchen had been split and the lock broken. Clothing and other items had been strewn around in the den and bedrooms. The window in one of the bedrooms was broken and open.

Although Mrs. McDevitt could give only a general description of the men, Mr. McDevitt selected defendant's photograph from among those shown by the Piedmont police and at the trial identified defendant.

Martha Worrell testified that between 8 and 8:45 p.m. she saw a blue car pass her near the McDevitt home three times. She also saw it parked near the McDevitt home. She identified defendant as one of the two male occupants of the car. Two days later Piedmont police arrested defendant. Inspector Lamp informed defendant of his constitutional rights. Defendant asked to contact an attorney named Merrill. Defendant made no statement, except to say, “I have been had.” He contacted the attorney by telephone. The attorney visited him, and defendant was released on bail.