THE PEOPLE, Plaintiff and Respondent, v. DAVID RIVERA, Defendant and Appellant, 41 Cal. 3d 388

Opinion KAUS, J. Defendant David Rivera appeals after a jury convicted him of murder (Pen. Code, § 187) and burglary (Pen. Code, § 459). We reverse for error in the admission of evidence of a prior charged robbery. (People v. Thompson (1980) 27 Cal.3d 303, 314 [165 Cal.Rptr. 289, 611 P.2d 883]; People v. Haston (1968) 69 Cal.2d 233, 246 [70 Cal.Rptr. 419, 444 P.2d 91].) On the night of June 12, 1981, four youths burglarized the Stop-N-Go Market in Rialto; San Bernardino County. Four 6-packs of beer were taken from the all-night convenience store.

In the course of the getaway, one of the youths, Roland Paez, stabbed the murder victim, a customer at the market who gave chase and attempted to stop the thieves. Cresencio Quiroz was one of the two youths who entered the store and took the beer. In a taped confession Quiroz implicated defendant Rivera. Later, in separate trials, Quiroz and Paez were convicted of first degree murder and burglary. David Rodriguez, the alleged driver of the getaway vehicle, pleaded guilty of being an accessory to murder. Three months after the crime, defendant, then seventeen years old, was arrested at his home.

He was advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]. On the way to the police station, defendant asked the arresting officer, Detective Shroads, to contact his father. At the station, after Miranda advisements were repeated, defendant denied responsibility for the burglary and killing and refused to take a polygraph test. Soon thereafter, however, he made a taped statement, confessing to the burglary, but insisting that he did not stab the victim.

His description of the events surrounding the crimes matched that of the other perpetrators and the witnesses. After the confession defendant met privately with his father and stepmother. About two hours after the interrogation he was transported to juvenile hall by Officer Joseph Cirilo. Cirilo had been on duty the night of the crime and had arrived at the scene before other officers, but had not seen the getaway car. As he and defendant drove to juvenile hall, Cirilo asked defendant “out of curiosity” which way the perpetrators had fled after the crime. Defendant responded by explaining their route.

Defendant was charged with murder on a felony-murder theory. He moved pretrial to suppress all statements made to the police on grounds there had been no adequate waiver of his Miranda rights. Applying the criteria enumerated in People v. Lara (1967) 67 Cal.2d 365 [62 Cal.Rptr. 586, 432 P.2d 202], the trial court found overwhelming evidence that defendant fully knew and understood the rights that he waived orally and in writing. The court denied the motion to suppress. At trial, evidence of defendant’s confession was introduced and Cirilo described his conversation with defendant.

Defendant testified on his own behalf, insisting he had been at a party at his sister’s house at the time of the incident. He claimed he knew of the crime because Paez bragged to him about it after the perpetrators returned to the party. He said he lied in his confession to Shroads because he wanted to “cover” the others and because he did not want to be labelled a “snitch.” He stated that when he finally implicated Paez as the actual killer, he did so because he thought he might be able to avoid going to juvenile hall. He denied making any admissions to Officer Cirilo.

Upon conviction, defendant was found unamenable to treatment by the Youth Authority and was sentenced to state prison for a term of 25 years to life on the murder count, with a concurrent sentence on the burglary. On appeal, defendant challenges the admission of his confession and the statement to Officer Cirilo as violative of his privilege against self-incrimination. He also contends that the confession was involuntary, motivated by promises made by the police. Additionally, defendant assigns error in the admission of a prior offense.

We address first the alleged error in the admission of the prior offense, an armed robbery committed about a year and a half before the instant offenses. Over defendant’s objection, evidence of the prior offense was admitted on cross-examination. The prosecution offered the evidence to show identity, knowledge, and common scheme and design. (Evid. Code, § 1101, subd. (b).) The trial court found the past and present crimes to have enough shared characteristics to permit introduction of the evidence to prove identity. We disagree.

In order for evidence of a prior crime to have a tendency to prove the defendant’s identity as the perpetrator of the charged offense, the two acts must have enough shared characteristics to raise a strong inference that they were committed by the same person.

It is not enough that the two acts contain common marks: “[T]he inference of identity arises when the marks common to the charged and uncharged offenses, considered singly or in combination, logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses.” (People v. Haston, supra, 69 Cal.2d 233, 246, italics added; accord, People v.

Thompson, supra, 27 Cal.3d at p. 316.) In the present case the prosecution sought to justify the admission of the prior offense on the basis of the following “highly distinctive similarities” between the prior offense and the charged conduct: (1) both crimes occurred on a Friday night; (2) both occurred at approximately 11:30 p.m.; (3) both involved convenience markets; (4) both markets were in Rialto; (5) both markets were located on street corners; (6) both crimes involved three perpetrators; (7) both involved getaway vehicles; (8) prior to both crimes, two or three people were observed standing outside the store; (9) defendant used an alibi defense in both cases: when accused of the prior offense, he claimed to have been with his brother all night; in the current case he claims he spent the evening with his sister.

Taken alone or together, however, these characteristics are not sufficiently unique or distinctive so as to demonstrate a “signature” or other indication that defendant perpetrated both crimes. Convenience stores are often on street corners and are prime targets for crimes; undoubtedly many of these offenses occur late on Friday evenings and involve a getaway car and more than one perpetrator; finally, alibi is a common defense.

Moreover, the dissimilarities between the two crimes are significant: (1) the prior offense was armed robbery, a crime against the person, whereas the charged offense was planned as a burglary, a crime against property; (2) the prior involved the taking of money, while the charged crime involved the taking of beer; (3) the coperpetrators in each case were different. In addition, in an attempt to reduce the prejudicial effect of the evidence, the court excluded any mention that guns were used in the prior offense, which further distinguishes it from the present crime, involving no such firearm.

In short, the prior offense was a robbery at gunpoint; the charged crime was a “snatch” burglary plus a stabbing. In these circumstances it was error to allow the prior conviction into evidence. Having found error in the admission of the prior offense, we must assess its prejudicial effect. For the purposes of our analysis, we assume no error in the admission of the confession and other statements made to the police. Nonetheless, it is reasonably probable that absent the admission of the prior robbery a result more favorable to defendant would have been reached. (People v.

Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) Defendant testified he had lied to Shroads in order to “cover” for the other perpetrators and because he thought his cooperation would spare him from going to juvenile hall. Quiroz implicated defendant in his own confession; but there was also evidence that Quiroz was a member of a rival gang and an enemy of the defendant. Finally, no witnesses were able to identify defendant, and no physical evidence linked him with the crimes. Thus any evidence of defendant’s prior criminal behavior could easily have influenced the jury to convict.

We therefore reverse the judgment. Although we reverse on the above-stated grounds, for the guidance of the trial court in the event of a retrial we address defendant’s challenge to the admissibility of the confession and subsequent statements to the police. In pretrial proceedings and at trial, defendant sought to exclude the confession on grounds his waiver was not knowingly and intelligently made under the dictate of Miranda and, further, that the confession was involuntary in the traditional sense, motivated by promises made by the police.

Defendant’s request that Detective Shroads contact his father, made after arrest during transport to the station, was submitted merely as a factor to be considered in support of the dual challenge to the validity of the confession. The specific objection that the request to contact his father constituted an invocation of the privilege against self-incrimination (People v. Burton (1971) 6 Cal.3d 375 [99 Cal.Rptr. 1, 491 P.2d 793]) was not made in the trial court, but was raised for the first time on appeal.

Perhaps it is for that reason that the record is somewhat equivocal as to the exact nature of the defendant’s request. The matter will undoubtedly be reexamined and resolved if the case is retried. A finding that defendant was requesting his father’s presence would bring into play our decision in People v. Burton, supra, 6 Cal.3d 375.

We held in Burton 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. The police must cease custodial interrogation immediately upon exercise of the privilege.

The police did not so cease in this case, the confession obtained by the subsequent questioning was inadmissible, and therefore, the admission of such confession was prejudicial per se . . . .” (6 Cal.3d at pp. 383-384, italics added.) Burton establishes a general or “per se” rule that a juvenile’s request to speak to his parent constitutes an invocation of his self-incrimination privilege, and, despite previous waivers, the police must cease questioning.

The reference to “evidence demanding a contrary conclusion” in Burton recognized the possibility that in some cases the juvenile’s own request might make it clear that he did not wish to speak to his parents for advice in responding to the police questioning, but rather had some other, unrelated purpose in mind—for example, to ask them to bring his toothbrush to juvenile hall.

Absent such unusual facts, both our court and the Courts of Appeal have repeatedly interpreted Burton to require the police automatically to cease questioning when a juvenile in custody requests to see his parent. (See, e.g., In re Michael C. (1978) 21 Cal.3d 471, 475-476 [146 Cal.Rptr. 358, 579 P.2d 7], revd. on other grounds, Fare v. Michael C. (1979) 442 U.S. 707 [61 L.Ed.2d 197, 99 S.Ct. 2560]; People v.

Soto (1984) 157 Cal.App.3d 694, 705 [204 Cal.Rptr. 204]; In re Abdul V (1982) 130 Cal.App.3d 847, 862 [182 Cal.Rptr. 146]; In re Roland K. (1978) 82 Cal.App.3d 295, 300-301 [147 Cal.Rptr. 96].) Although Fare v.

Michael C., supra, suggests that the Burton rule-equating a juvenile’s request to speak to a parent with the invocation of his privilege against self-incrimination—may not be compelled by the federal self-incrimination clause, Burton has been an established part of California jurisprudence for well over a decade and it is appropriate to recognize its holding as one component of the state constitutional privilege against self-incrimination. (Accord People v. Pettingill (1978) 21 Cal.3d 231, 246-252 [145 Cal.Rptr. 861, 578 P.2d 108].) And, as we recently explained in Ramona R. v.

Superior Court (1985) 37 Cal.3d 802 [210 Cal.Rptr. 204, 693 P.2d 789], evidence obtained in violation of the state constitutional privilege against self-incrimination is inadmissible under Evidence Code

section 940. We briefly note that defendant also assigns error to the trial court’s instruction on aiding and abetting. People v. Beeman (1984) 35 Cal.3d 547 [199 Cal.Rptr. 60, 674 P.2d 1318] will be dispositive of that issue upon retrial. The judgment is reversed. Bird, C. J., Broussard, J., and Reynoso, J., concurred. Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.

Section 1101 provides in pertinent part: “(

b) Nothing in this

section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts.” Evidence of the fact that Quiroz’ confession implicated defendant was received without objection. Further, it is noteworthy that a first trial of defendant ended in a hung jury.

The evidence was in conflict as to whether defendant asked that his father be present during the interrogation—i.e., that he wanted to “speak” to his father. Shroads testified at trial that defendant wanted his father “present,” but it is unclear whether this was defendant’s actual request. At the pretrial suppression hearing, Shroads stated that defendant requested only for his father to be “contacted.” When asked whether defendant “intimated in any way that he wanted his father present prior to being interrogated,” Shroads replied that he did not.