Celaya

Defendant appeals from a judgment of conviction of grand theft. Following denial of defendant’s in limine motion to exclude his confession, defendant waived trial by jury and agreed to submit the matter on the transcript of the preliminary hearing. It was agreed the defendant’s maximum sentence would be two years in state prison if found guilty. Defendant reserved his appeal right including that relating to his motion to exclude the confession. Defendant was found guilty by the court and was thereafter sentenced to a two-year term in state prison.

Defendant’s only contention on appeal is the trial court erred in denying the motion to exclude the confession. We find defendant’s contention meritorious and therefore reverse the judgment.

At 12:30 a.m. on January 22, 1985, Anthony Gulizia, Jr., was awakened by a noise in his front yard. He saw a man outside with what appeared to *668 be about four radios. Gulizia called the Santa Clara County Sheriff’s office, and two deputies came by and took a report. About an hour later, Gulizia again saw the same person walking by, going in the opposite direction, carrying a chrome box.

Gulizia put his dog out so it would bark if the…

I agree with the holding that defendant’s first admission was made in a custodial setting and was therefore inadmissible. I believe, as does the majority, that his subsequent post -Miranda statement was inextricably tied to the first one and was given under circumstances replete with earmarks of coercion so as to be inadmissible even under Oregon v. Elstad (1985) 470 U.S. 298 [ 84 L.Ed.2d 222 , 105 S.Ct. 1285 ],

But I cannot join in the discussion of the difference between a federal and California standard, here the alleged presumption of taint. I readily concede that the California Supreme Court is the ultimate interpreter of the California Constitution. No one has put it more clearly than Mr. Justice Cardozo: “A judgment by the higest court of a state as to the meaning and effect of its own constitution is decisive and controlling everywhere.” (Highland Farms Dairy v.Agnew (1937) 300 U.S. 608, 613 [ 81 L.Ed. 835, 840 , 57 S.Ct. *675 549 ].) But while I do not challenge the power, I question the manner of its exercise in the last 15 years.

Intent upon shedding the obligation to follow unpalatable constitutional doctrine, the California Supreme Court has endeavored to infuse…

Defendant appeals from a judgment of conviction of grand theft. Following denial of defendant's in limine motion to exclude his confession, defendant waived trial by jury and agreed to submit the matter on the transcript of the preliminary hearing. It was agreed the defendant's maximum sentence would be two years in state prison if found guilty. Defendant reserved his appeal right including that relating to his motion to exclude the confession. Defendant was found guilty by the court and was thereafter sentenced to a two-year term in state prison.

Defendant's only contention on appeal is the trial court erred in denying the motion to exclude the confession. We find defendant's contention meritorious and therefore reverse the judgment.

At 12:30 a.m. on January 22, 1985, Anthony Gulizia, Jr., was awakened by a noise in his front yard. He saw a man outside with what appeared to be about four radios. Gulizia called the Santa Clara County Sheriff's office, and two deputies came by and took a report. About an hour later, Gulizia again saw the same person walking by, going in the opposite direction, carrying a chrome box.

Gulizia put his dog out so it would…