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People v. Borba10/7/1980
endant's right against self-incrimination in his statement to a police officer.
The majority asserts that the only meaningful distinction between Pettingill and the present case is that here the detective who obtained the incriminatory statement had no knowledge that the appellant had previously invoked his Miranda rights. However, it should be noted that in Pettingill, two hours after the defendant informed the arresting officer that he wished to exercise his right to remain silent, the same arresting officer renewed interrogation of the defendant regarding the crime for which he was arrested. The defendant again refused to talk. After the defendant had been in custody for three days, a detective, who was aware of the defendant's two refusals, confronted him with evidence of his guilt in a different crime, readvised him of his rights, and obtained a waiver and confession. As Justice Gardner writes in Lopez, "Obviously, police harassment existed. The officers were going to interrogate Mr. Pettingill come hell or high water." (90 Cal. App. 3d at pp. 717-718.)
In the instant case, the arresting officer advised appellant of his rights and then asked him if he wanted to talk with him about the
drunk driving . When appellant refused, the officer immediately ceased the interrogation. In the morning, the detective , ignorant of the appellant's earlier refusal to discuss the drunk driving charge, readvised appellant of his rights and began asking him questions about the burglary. Unlike Pettingill, there were no coercive police tactics here; there was no deliberate attempt to circumvent Fioritto. The facts of this case clearly demonstrate that a rigid, inflexible application of the Fioritto/Pettingill rule irrationally obstructs legitimate police investigation activity.
I would affirm.
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