Owens

I respectfully dissent. The transcript of the tape-recorded interrogation of defendant is 20 pages long, but one only has to read part of page 1 to realize that any later statement was obtained in clear violation of the principles set forth in People v. Fioritto (1968) 68 Cal.2d 714, 718-719 [ 68 Cal.Rptr. 817 , 441 P.2d 625 ] and People v. Pettingill (1978) 21 Cal.3d 231, 237-241 [ 145 Cal.Rptr. 861 , 578 P.2d 108 ]. I quote:

It seems to me that there were at least four places in the quoted portion of the transcript where, on Fioritto-Pettingill principles, the interrogation should have ceased. I know of no rule that the police have a right to keep the conversation going by giving the suspect his Miranda warning in the hope that one thing will lead to another and that, in spite of his firm resolve to “do no talkin’” the suspect will do just that.

Appellant’s petition for a hearing by the Supreme Court was denied July 23, 1980. Bird, C. J., was of the opinion that the petition should be granted.

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,…