Fare v. Michael C.

*480CLARK, J., Dissenting.

The question presented is whether the People carried their burden of proving that defendant did not intend to assert his privilege against self-incrimination when he asked to see his probation officer. Reviewing this question in light of the totality of circumstances shown by the record, I, like the trial court and the unanimous Court of Appeal, conclude that the People did carry their burden. Accordingly, I would affirm the judgment.

Because of confusion created by the majority, it is necessaiy to emphasize that this question is one of fact to be decided in light of the totality of circumstances shown by the record.

On the one hand, the majority appear to hold that defendant’s request for his probation officer constituted, per se, an invocation of his Fifth Amendment privilege, foreclosing consideration of the “totality of the circumstances” to determine whether his request was actually intended as such an invocation. “In cases in which we must decide whether a confession is voluntary or coerced we have looked to the ‘totality of the circumstances’ to find whether the confessant was capable of understanding the interrogation and voluntarily confessed or whether his will was actually overcome. Here, however, we face conduct which, regardless of considerations of capacity, coercion or voluntariness, per se invokes the privilege against self-incrimination.” (Ante, p. 477.)

On the other hand, in the succeeding paragraph the majority appear to recognize that our inquiry into whether defendant asserted his Fifth Amendment privilege is not concluded when we find, what is not disputed, that he asked for his probation officer, but that we must proceed to inquire whether his request was meant as an assertion of the privilege. “[W]e hold here that the People must meet the burden of proving that a minor who requests to see his probation officer does not intend to assert his Fifth Amendment privilege.” (Ante, pp. 477-478.) This recognition of the People’s right to assume that burden is compelled by People v. Burton (1971) 6 Cal.3d 375 [99 Cal.Rptr. 1, 491 P.2d 793], “[W]e hold that when, as in the instant case, a minor is taken into custody and is subjected to interrogation, without the presence of an attorney, his request to see one of his parents, made at any time prior to or during questioning, must, in the absence of evidence demanding a contrary conclusion, be construed to indicate that the minor suspect desires to invoke his Fifth Amendment privilege.” (Id., at pp. 383-384, italics added.)

*481What term of art applies to the evidence bearing on the question whether defendant intended to assert his privilege against self-incrimination when he asked for his probation officer? The term that comes to mind is the “totality of the circumstances” shown by the record. However, quibbles over terminology are of little moment so long as it is clearly understood that one must consider the circumstances—the “context,” if you prefer—of defendant’s request in order to determine its significance.

The question whether defendant’s request for his probation officer manifested an unwillingness to proceed with the interrogation in his absence is readily resolved by simply reading the succeeding portion of the transcript. After being informed that his probation officer would not then be summoned, defendant was again advised of his right to remain silent and again asked if he understood that right. Replying that he did understand it, defendant reiterated his willingness to continue the interrogation. (Ante, pp. 473-474.)

Recognizing that it is a question of fact whether defendant intended to assert his privilege against self-incrimination by requesting his probation officer, the distinguished trial judge1 concluded that the record clearly indicated that defendant was willing to proceed with the interrogation in the absence of his probation officer. Affirming the judgment, the Court of Appeal unanimously concluded that “the ‘totality of the circumstances’ affords sufficient ‘affirmative proof of an intent to waive the privilege.” After independently reviewing the record I reach the same conclusion and lament the fact that the majority free a confessed murderer.2

Manuel, J., concurred.

That Judge Bonnie Lee Martin is the author of one of the most widely used handbooks on search and seizure issues is but one indication of her scholarship and sensitivity to the constitutional issues present in situations involving the admissibility of evidence. (See Martin, Comprehensive Cal. Search and Seizure (1971).)

The Court of Appeal observed that without the confession the balance of the evidence is insufficient to sustain the conviction.