THE PEOPLE, Plaintiff and Respondent, v. RAE JONI FARIS, Defendant and Appellant, 63 Cal. 2d 541

TRAYNOR, C. J. Defendant Rae Joni Paris appeals from a judgment of conviction entered on a jury verdict finding her guilty of burglary in the second degree. The trial court denied a motion for a new trial, refused probation and sentenced defendant to the state prison. In the afternoon of July 11, 1963, police officers arrested James Yokum when he was caught burglarizing an apartment in Los Angeles. Yokum told the officers that he lived in an apartment at 2112 Halldale Street and that they could search it.

When the officers arrived at that address, however, they learned that Yokum had moved away two or three months before. At approximately 10 p.m. that evening the officers received information that led them to an apartment at 2816 South Ellendale Street. The apartment house manager told them that Yokum lived there and gave them a key to Yokum’s apartment and permission to search it. The officers, without a warrant, entered Yokum’s apartment and found numerous clocks, irons, cameras, wallets, and shavers, which were later determined to be stolen property. Defendant entered while the search was in progress.

She told the officers that she shared the apartment with Yokum. She also admitted that much of the property found in the apartment was not hers or Yokum’s. When asked if the items had been stolen, she replied, “Well, I am not sure how he got them, I know he has been doing some type jobs, he usually leaves during the daytime and gets back around 2 p.m. with the loot, and then pawns it and usually tears up the pawn tickets.” The officers arrested defendant and seized the property as evidence. The police interviewed defendant on July 12, the morning after her arrest. She denied participating in the burglaries.

During an interrogation on July 13, the police told defendant that Yokum had implicated her in the burglaries. Defendant at first denied any such complicity but ultimately confessed that she had accompanied Yokum on about “ten jobs.” The interrogating officer summarized the substance of the conversation in a handwritten memorandum that defendant signed. Over objection the memorandum was admitted into evidence, and the interrogating officer testified to the contents of the defendant’s statement. After the prosecution rested, defense counsel called Yokum to the stand.

After exonerating defendant of any participation in the burglaries he requested a recess to confer with his attorney. He thereafter returned to the stand and, to the surprise of the defense, recanted his prior testimony and implicated defendant as his accomplice in the burglaries. Defendant stated that she now wished to testify in her own defense. She took the stand and denied that part of her statement in which she admitted accompanying Yokum during the burglaries.

Defendant contends that her statement was obtained in violation of her rights to counsel and to remain silent and was therefore inadmissible. (Escobedo v. Illinois, 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977]; People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361].) Once the accusatory stage is reached, a suspect is entitled to counsel, and any statements elicited in the absence of counsel must be excluded unless the accused has been informed of bis rights to counsel and to remain silent or has otherwise waived those rights. (People v.

Dorado, supra, pp. 353-354.) The accusatory stage occurs “when the officers have arrested the suspect and . . . have undertaken a process of interrogations that lends itself to eliciting incriminating statements. ...” (People v. Stewart, 62 Cal.2d 571, 577 [43 Cal.Rptr. 201, 400 P.2d 97].) The police arrested defendant and took her into custody on July 11, 1963. Thereafter, they interrogated her on July 12 and again on July 13. During the latter interview, an officer informed defendant that Yokum had implicated her in the burglaries.

At this time the investigation clearly had focused on defendant and the police were under a duty to advise her of her constitutional rights before attempting to elicit a confession. There is no evidence that they did so, and defendant testified that they did not. The fact that a trusty or officer of the jail informed defendant that she could apply for counsel under the referral system does not establish that she was aware of her rights to counsel and to remain silent during interrogation. Since it does not appear that defendant knowingly waived these rights, the statement should have been excluded. (Escobedo v.

Illinois, 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977]; People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361]; People v. Stewart, 62 Cal.2d 571 [43 Cal.Rptr. 201, 400 P.2d 97].) The trial court also erred in admitting the evidence obtained during the search of the apartment on South Ellen-dale. Once a defendant establishes that a search was conducted without a warrant, the burden shifts to the prosecution to show proper justification. (People v. Reeves, 61 Cal.2d 268, 274 [38 Cal.Rptr. 1, 391 P.2d 393]; People v. Shelton, 60 Cal.2d 740, 744 [36 Cal.Rptr. 433, 388 P.2d 665]; People v.

Haven, 59 Cal.2d 713, 717 [31 Cal.Rptr. 47, 381 P.2d 927]; People v. Privett, 55 Cal.2d 698, 700 [12 Cal.Rptr. 874, 361 P.2d 602]; Badillo v. Superior Court, 46 Cal. 2d 269, 272 [294 P.2d 23].) The search in this case cannot be justified as incident to Yokum’s arrest since he was arrested some six hours earlier while burglarizing an apartment in another

section of the city. (People v. Cruz, 61 Cal.2d 861, 866 [40 Cal.Rptr. 841, 395 P.2d 889]; People v. King, 60 Cal.2d 308, 311 [22 Cal.Rptr. 825, 384 P.2d 153].) The search cannot be justified on the ground that the manager of the apartment house consented to it. (Stoner v. California, 376 U.S. 483 [84 S.Ct. 889, 11 L.Ed.2d 856].) Nor can it be justified on the ground that Yokum consented to it.

He was aware that a search of the South Ellendale Street apartment would lead to the discovery of a large quantity of stolen merchandise, and he tried to protect himself by giving the officers the address of, and permission to search, the Hall-dale Street apartment. His attempt to mislead the officers with a false address clearly demonstrates that he did not consent to a search of the South Ellendale Street apartment. (Castaneda v. Superior Court, 59 Cal.2d 439, 443-444 [30 Cal.Rptr. 1, 380 P.2d 641]; People v.

Haven, 59 Cal.2d 713, 720 [31 Cal.Rptr. 47, 381 P.2d 927].) Whether or not defendant’s statement was sufficiently explicit to constitute a confession, the errors in admitting the statement and the physical evidence seized at the apartment were obviously prejudicial. (Cal. Const., art. VI, § 4½.) For purposes of retrial we note also that defendant’s statements made to the officers while they were conducting the illegal search are also inadmissible as a product of that search. Defendant returned to the apartment and found three officers conducting a search.

They confronted her with the stolen property and secured damaging admissions. Under these circumstances the connection between defendant’s responses and the illegal search was not “'... so attenuated as to dissipate the taint’ ” of illegality. (Wong Sun v. United States, 371 U.S. 471, 487 [83 S.Ct. 407, 9 L.Ed.2d 441]; People v. Bilderbach, 62 Cal.2d 757, 763-768 [44 Cal.Rptr. 313, 401 P.2d 921].) The judgment is reversed. Peters, J., Tobriner, J., Peek, J., Burke, J., and White, J., concurred.

Defendant’s statement, as written, by the interrogating officer is as follows: “J.F. “July 13, 1963 “I got here from Chicago on the 11th of June. We moved the following Sunday over on Ellendale, apartment 1, 2816 Ellendale. From then on, I went with James (Yokum) on the burglaries, I didn’t go with him every day. He, at times, would go with other fellows, I didn’t know any of them. We would only hit one or sometimes two apartments. We hit apartments and always through the doors. I never picked up any of the stuff or done any searching. I would just watch out the window to see if anyone was coming.

I remember that apartment on Adams where he got that record player and he did get a rifle there, also the apartment on 3814 West Adams. We only worked through the week, never on a weekend. I was with him on about ten jobs. I never went with Bob (Perry) and him, after he teamed up with Bob about a week ago, I haven’t went on any jobs. Bob and James would go out on the jobs then bring the stuff or loot back to our place if they hadn’t already pawned it, they then would divide it up.

I tried to talk James into quitting, I told him I wouldn’t go with him any more, I told him if he kept it up he would get his head blown off. He didn’t know who might be in the apartments, just because no one answered the door, it doesn’t mean there isn’t someone home. /s/ Joni Faris July 13, 1963’’ This testimony was offered to prove that defendant’s statement was involuntary. Defense counsel objected to the admission of the statement into evidence on the grounds that it was involuntary and that it was a fruit of her illegal arrest. (See Wong Sun v.

United States, 371 U.S. 471, 485 [84 S.Ct. 407, 9 L.Ed.2d 441].) Defendant is not now barred, however, from urging its inadmissibility under the then unannounced principle of the Escobedo ease. (People v. Hillery, 62 Cal.2d 692, 712 [44 Cal.Rptr. 30, 401 P.2d 382].) Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council. “July 13, 1963 “I got here from Chicago on the 11th of June. We moved the following Sunday over on Ellendale (2816 Apt. 1). Erom then on I went with James (Yokum) on the burglaries. I didn’t go with him every day.

He some times would go with other fellows, I didn’t know any of them. We would only hit 1 or sometimes 2 apts. We only hit apt’s [sic]—& always through the doors. I never picked up any of the stuff or done any searching—I would just watch out the window to see if any one was coming. “I remember that apt on Adams (4426 W. Adams #203) where he got the record player and he did get a rifle there. Also the apt 3814 W. Adams (money). “We only worked thru the week never on a weekend. I was with him on about 10 jobs—• “I never went with Bob (Perry) and him.

After he teamed up with Bob about a week ago I haven’t went on any jobs. Bob & James would go out on the jobs then bring the stuff (loot) back to our place if they hadn’t already pawned it, then they would divide up— “I tried to talk James into quitting. I told him I wouldn’t go with him any more. I told him if he kept it up he would get his head blown off—he didn’t know who might be in the apts. just because no one answers the door it doesn’t mean there isn’t some one home— /s/ Joni Paris July 13, 1963”