People v. Hooper

KINGSLEY, J. By an amended information, defendant was charged, in three counts—in count I with burglary, in violation of section 459 of the Penal Code, in count II with child stealing in violation of section 278 of the Penal Code, and in count III with child molestation, in violation of section 288 of the Penal Code. Four prior felony convictions were also charged. Defendant admitted the priors and pled not guilty to the offenses charged. After a trial by jury, he was found guilty on all three counts (the jury fixing the degree of burglary as being in the first degree); proceedings under the mentally disordered sex offender act were begun but were later abandoned;1 a motion for new trial was made and denied; probation was denied; defendant was sentenced to state prison on each count, the sentences to run concurrently. He has appealed.

At defendant’s request, we appointed counsel for him on appeal; thereafter, some dissatisfaction being expressed by defendant, we relieved that counsel and appointed new counsel for him. We have considered all matters raised in both briefs. On our own motion, we augmented the record to include the instructions given and refused and the arguments of counsel.

I

It is not questioned that, some time in the early morning hours of February 2, 1964, someone took an eight-year-old girl from her mother’s home and thereafter sexually molested her; the only question at the trial was whether or not defendant was the guilty person. Although the little girl was somewhat confused in her identification of defendant, other testimony was sufficient to identify him as the abductor. The evidence clearly supports the verdict.

II

The ease was tried prior to the decision in Escobedo v. [121]Illinois (1964) 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758] (and, therefore, of course, prior to the decision in People v. Dorado (1965) 62 Cal.2d 338 [12 Cal.Rptr. 169,198 P.2d 361], and in Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.E.3d 974]). Under these circumstances, the rules laid down in Dorado are here applicable but not those laid down in Miranda. (People v. Rollins (1967) 65 Cal.2d 681 [56 Cal.Rptr. 293, 423 P.2d 221].)

The prosecution introduced the testimony of two police officers as to conversations with the defendant after his arrest. There is nothing in the record to suggest that any of the warnings required by Dorado were ever given. However, the statements made by defendant were exculpatory and were no more than statements of the alibi to which he and his witnesses testified at the trial. The testimony was brief, no point was made in argument that the statements, in any way, were evidence of guilt. Under the circumstances, we conclude that the use of these statements was “harmless beyond a reasonable doubt” (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824]), and, therefore, that the error was not prejudicial.