People v. Barreto

• Citation: 256 Cal.App.2d 392,64 Cal.Rptr. 211
• Decision Date: 27 November 1967
• Docket Number: Cr. 12425
• Parties: The PEOPLE, Plaintiff and Respondent, v. Carlos Ignacio BARRETO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 211

64 Cal.Rptr. 211

256 Cal.App.2d 392

The PEOPLE, Plaintiff and Respondent, v. Carlos Ignacio BARRETO, Defendant and Appellant.

Cr. 12425.

Court of Appeal, Second District, Division 4, California.

Nov. 27, 1967.

Hearing Denied Jan. 24, 1968.

Irving S. Jeffer, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Ronald M. George, Deputy Atty. Gen., for plaintiff and respondent.

JEFFERSON, Associate Justice.

Defendant was charged with the murder of his wife. A jury found him guilty of voluntary manslaughter, a lesser included offense. He appeals from the judgment of conviction and from the order denying his motion for new trial, ¹ contending that his confessions were inadmissible because made involuntarily and in violation of his right to counsel, and, further, that evidence used against him was obtained as the result of illegal searches. The body of the victim was never found and there were no eyewitnesses to the killing. Proof of the Corpus delicti was by circumstantial evidence.

While no question is presented concerning the sufficiency of the evidence, to view the issues in proper perspective requires a summary of the facts.

Until 1964, defendant and the victim, Magdalena, lived in Colombia, South America. In that year they came with their child to live in the United States. In June of 1964, they moved to Los Angeles and lived in an apartment on South Vermont Avenue. In February 1965, Margarita Mora, a close friend of Magdalena, and also from Colombia, came to Los Angeles and moved in with them. On April 19, 1965, during an argument witnessed by Miss Mora, defendant struck Magdalena and said 'You provoke me to kill you.' When they began to exchange blows Miss Mora called the police. From this time until Miss Mora moved out of the apartment in the latter part of June, defendant and Magdalena did not speak to each other. They communicated only through Miss Mora.

Miss Mora worked for the same company as Magdalena and they continued to see each other after Miss Mora moved out. The two women decided to pool their money for a car to drive to work. On the evening of July 9, 1965, they went to a dealer with two friends, Carlos and Elizabeth Ordonez, and agreed to buy a certain automobile. They were to return at 11 a.m. the next day, a Saturday, to make the down payment. The Ordonezes were to be the co-signers on the contract and were to accompany them. After leaving the dealer that Friday night, Magdalena, and the four-year-old child of defendant and Magdalena who was with them, were driven back to the Vermont Street apartment by the Ordonezes. They dropped Magdalena and the child off at about 10:30 p.m. Neither the Ordonezes nor Miss Mora saw Magdalena again.

When she did not keep her appointment the next morning at the automobile dealer, the Ordonezes and Miss Mora telephoned the apartment several times but received no answer. They went to the apartment and found the blinds pulled and no one at home. The manager opened the door for them. The apartment was in disarray and some of Magdalena's clothes were hanging on a closet door. Throughout that day and evening they attempted to locate Magdalena. They called the police and several hospitals. On Sunday, Mrs. Ordonez called the apartment again. Defendant answered and told her that Magdalena had gone to Las Vegas for the weekend; that she left Friday night. When Mrs. Ordonez stated, 'that couldn't be possible because we took her home Friday night at 11:00 o'clock,' defendant stated 'Well, I don't know. She went to Las Vegas for the weekend.'

That night Miss Mora telephoned defendant's apartment and asked him if he knew the whereabouts of Magdalena. Defendant answered 'No. She went for a weekend to Las Vegas, in a car, the latest model, with a man.' He told her that when he returned home at 8 a.m. on Saturday morning, he found the child alone in the apartment. Miss Mora again called the apartment after work the next day. Defendant repeated the same story, adding that Magdalena had gone to Las Vegas with a man named Jaime Gonzales. Miss Mora had known a man by that name in Colombia but not in Los Angeles.

The records of Magdalena's place of employment indicated that Friday, July 9, 1965, was the last day she appeared for work. She never collected $63.20 in back wages.

On the night of July 9--10, 1965, Mrs. Baskette, who occupied the apartment directly below defendant's apartment, was asleep, when, at about 1:3 a.m., she was awakened by a noise. It was a 'hard thump' on the ceiling of her apartment. A few seconds later she heard another 'hard bump' which sounded like 'something real heavy' had been dropped on the floor.

On Saturday Mrs. Baskette did not see Magdalena doing the wash as was her usual custom. She never saw Magdalena again. On Sunday morning Mrs. Baskette observed defendant leave the apartment carrying a large and apparently heavy bundle over his shoulder; 'it pulled very heavy on his shoulder.' The bundle was covered with a sheet, the four corners of which had been tied together. Mrs. Baskette saw defendant return with his child later that afternoon. Defendant was wearing beach attire.

Miss Robillard also occupied an apartment in the building where defendant lived. When she went to the laundry room on Sunday, she observed that defendant had an automobile tire in the laundry room and was washing it.

On July 12, 1965, an 'alien's change of address card' was mailed to the Immigration and Naturalization Service. The signature of the person reporting the change of address, Magdalena Barreto, was signed by defendant.

On July 13, 1965, defendant gave the manager of his apartment notice that he was moving out. He left on July 31.

The Los Angeles County Coroner's Office had no record of the death, during this period of time, of any Magdalena Barreto or of any person whose name was similarly spelled. Records are kept of all accidental deaths. Nor was there an unidentified female body from an automobile accident during this period. The Los Angeles Police Department traffic records showed no report of any automobile accident involving anyone named Magdalena Barreto.

Defendant wrote two personal letters in Spanish to persons in South America. (People Exs. 12 and 13.) One letter, dated July 8, 1965, included the statement, 'I have a series of problems, amongst others, involved in something of a homicide. I will explain. Up to now there are no proofs.' The other letter, dated September 4, 1965, and addressed to defendant's aunt, stated that Magdalena was killed in an automobile accident. In explaining the accident defendant stated, 'she crashed and fractured her skull and died instantly; I believe God wanted it this way; well, the three of us always went out together and that night I didn't want to go out and I let her go to the Hollywood Bowl to a comedy. Upon returning a front tire blew out and she lost control and turned over several times and the car was all smashed.

'I didn't communicate anything to her family and I'll be grateful if by chance you should meet with some of them, do not act as if you know; well, they are dirty people and they behaved themselves badly with her.'

Sergeant Williams was an investigating officer on the case. On Sunday, July 11, 1965, he learned of Magdalena's disappearance when Miss Mora and the Ordonezes came to the police station.

On July 15, defendant went to the station at the invitation of Sergeant Williams. He talked to Williams and Sergeant Mejia. The latter was assigned to the case because he was fluent in the Spanish language. The conversation was in Spanish and was translated by Mejia. Defendant was asked what he knew about his wife's disappearance. He related that he had not seen her since he went to work on the morning of July 9, 1965; he had not gone home after work because his wife often left on the weekend and left him to take care of their child; he went to a movie that night and later to a bowling alley; from 2 to 7 a.m. he slept in the car; when he got home at about 8 a.m. he found his son alone in the apartment; he thought his wife might have gone to Miami with a man named Jaime Gonzales.

Defendant talked with Sergeant Mejia again on July 20th. At that time he filled out a formal missing persons report. He told Mejia the same story he had on July 9th. Mejia indicated that Miss Mora believed he had 'disposed of' Magdalena. Defendant stated that Miss Mora would know more about his wife's whereabouts than he would, since she was staying with Miss Mora.

Defendant returned to the police station upon request on the morning of September 17. He talked with Sergeant Mejia. Later that day he was placed under arrest. That evening Sergeant Williams examined defendant's car which was parked in front of the station. He observed that the spare tire in the trunk was 'exceptionally clean for a spare tire in a trunk.' Upon examining it closely he observed what looked like dried bloodstains in a small v-shaped area between the rim and the tire. Subsequent laboratory tests determined that the stains were human blood.

On September 23 a police criminalistics expert went to the Vermont Avenue apartment which had not been reoccupied since defendant moved out on July 31. He found that portions of the underside of a living room rug and the pad beneath it had been sprayed with an aluminum paint. There were dark brown stains where the paint was sprayed. Tests run to the stains revealed they were human bloodstains.

After the prosecution introduced the above evidence, the court held a hearing, outside the presence of the jury, and received evidence relating to the admissibility of confessions defendant made after his arrest. The hearing was a protracted one, taking up more than a week in time and accounting for more than 500 pages of reporter's transcript. The circumstances under which defendant's statements were...