People v. Owens

Opinion

STEPHENS, J. Defendant was convicted of voluntary manslaughter, a violation of Penal Code section 192, subdivision 1, a lesser included offense within the charged offense, murder. The jury also found that defendant had used a firearm during the offense within the meaning of [25]Penal Code sections 12022.5 and 1203.06, subdivision (a)(1). Sentence was to state prison.

Except to say that there was a killing, the facts are of no moment to the single issue raised on appeal, i.e., did the court err in admitting defendant’s extrajudicial statements which are admissions.

So far as the circumstances surrounding the defendant’s giving of his statements, Police Sergeant lorio testified (outside the jury’s presence) that the statements were made some 30 to 45 minutes after defendant’s arrest. At the time the statements were made, defendant did not know they were being taped. Defendant clearly stated he did not wish to talk without having seen an attorney and this was repeated both before and after the giving of the Miranda warning.

It is defendant’s contention that the determination to remain silent until after talking to an attorney, repeated at least four times before his admissions, required the officers to cease questioning him. The People argue that a suspect who has asserted his rights and prevented further lawful interrogation nonetheless retains the option, thereafter, voluntarily to initiate a confession or make statements to the police. (See People v. McClary (1977) 20 Cal.3d 218, 226 [142 Cal.Rptr. 163, 571 P.2d 620].) The question here is, as a matter of law, were the statements in violation of Miranda or were they voluntary?

The court concluded that the statements were voluntary and hence admissible. For the most part we agree.

The important portion of the recorded conversation between defendant and the officers is as follows:

“Defendant: What’s happenin’, what’s happenin’ now?

“Officer: Say what?

“Defendant: I do no talkin’.

“Officer: You’re not doing any talkin’. What?