People v. Benally

• Decision Date: 14 March 1989
• Docket Number: No. H002620,H002620
• Citation: 208 Cal.App.3d 900,256 Cal.Rptr. 483
• Court: California Court of Appeals Court of Appeals
• Parties: , 209 Cal.App.3d 609A The PEOPLE, Plaintiff and Respondent, v. Michael L. BENALLY, Defendant and Appellant.

Page 483

256 Cal.Rptr. 483

208 Cal.App.3d 900, 209 Cal.App.3d 609A

The PEOPLE, Plaintiff and Respondent, v. Michael L. BENALLY, Defendant and Appellant.

No. H002620.

Court of Appeal, Sixth District, California.

March 14, 1989.

As Modified on Denial of Rehearing April 12, 1989.

Review Denied June 21, 1989.

Manuel J. Baglanis (Under appointment by the Court of Appeal), San Jose, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., David D. Salmon, Supervising Deputy Atty. Gen., and Peter Crook, Deputy Atty. Gen., for plaintiff and respondent.

AGLIANO, Presiding Justice.

Defendant Michael Benally appeals from a judgment of conviction entered upon a jury verdict finding him guilty of battery with serious bodily injury. (Pen.Code, §§ 242-243, subd. (d).) ¹ The jury found him not guilty of two counts of forcible rape. ( § 261, subd. (2).) The trial court sentenced defendant to state prison for the upper term of four years.

Defendant makes the following contentions on appeal: (1) the police taping of a conversation between defendant's attorney and the attorney's investigator violated his right to counsel under the federal and state constitutions; (2) the trial court erroneously failed to suppress defendant's statements obtained in violation of Miranda; ² and (3) the trial court erred in instructing the jury it could convict defendant of the lesser offense of misdemeanor battery only if it first unanimously determined that he had not committed the greater offense of battery with serious bodily harm. For the reasons discussed below, the judgment of conviction is affirmed.

Statement of Facts

On March 9, 1986, when Cathy K. arrived at the Pastime Bar in Sunnyvale, she saw defendant who was playing pool with one of her friends. Defendant eventually bought her a drink and asked if she wanted some cocaine. She did, and they walked to defendant's room in the Sunnyvale Hotel, located around the block. Enroute to defendant's room they bought beer at a liquor store. ³

Once they were in defendant's room, defendant left to try to obtain some cocaine. He returned without any cocaine, but stated he would try again later. According to Ms. K., she decided at that point to return to the bar, however, defendant blocked her exit. He struck her repeatedly in the stomach and face. Ms. K. testified that defendant then forced her to have intercourse with him. As she left his room, she was bleeding. Ms. K. remembered telling someone that she had been raped and to call the police.

Mimi Nichols was returning to her office located near the Sunnyvale Hotel that evening. She observed Ms. K. staggering and moaning in distress. Ms. K.'s face was swollen and she had difficulty talking. Ms. Nichols took her to her office and called the police.

Officer Lesley Richards arrived on the scene in response to the reported rape. Ms. K.'s lip was cut, her face was red and swollen and she was almost hysterical. While Officer Richards was interviewing Ms. K., Officer William Davis arrived and the investigation was turned over to him. She told Officer Davis that she had been beaten and raped twice at the Sunnyvale Hotel.

Officer Tim Davis went to the Sunnyvale Hotel in response to the report of a rape by a suspect named "Mike." After the hotel manager stated "Mike" lived in room 16, Officer Davis and Lieutenant Hugh knocked on the door of room 16 several times and announced their presence. When they received no response, Officer Davis obtained a passkey from the manager, unlocked the door, and again announced that he was a police officer before he entered the room with his gun drawn. He did not know if Lieutenant Hugh's gun was also drawn. Davis saw defendant lying in bed covered by a blanket. He ordered defendant to raise his hands and get out of bed. The officer then checked the bed for weapons. As soon as he was assured of his safety, Officer Davis holstered his gun.

Officer Davis asked defendant to identify himself and allowed defendant to look for his wallet. Defendant was unable to locate his wallet but the officer confirmed his identity by running a driver's license check through radio communications. Officer Davis then asked defendant a series of questions pertaining to the rape under investigation. He did not advise defendant of his Miranda rights prior to any questioning. In response to the officer's questions, defendant stated a girl named "Cathy" had been in his room that evening and that he had met her in the Pastime Bar. He said that he was unable to give her the drugs that she wanted and she left. He denied having sex with her.

Defendant then pointed out a pill vial and cosmetic case and told the officer that they belonged to Cathy. The officer also saw a makeup mirror and razor blade on the dresser. When Officer Davis told defendant that he had been accused of rape, defendant denied the charge.

Unaware that Officer Tim Davis had already located the suspect, Officer William Davis brought Ms. K. to the hotel. Learning of Ms. K.'s arrival, Officer Tim Davis asked defendant to step into the hallway. Ms. K. identified defendant as her attacker and he was placed under arrest.

There was a white residue on both the makeup mirror and razor blade. The residue on the razor blade was identified as cocaine, however the residue on the mirror was of insufficient quantity to test. Blood on defendant's hand was the same type as Ms. K.'s.

Detective David Bridges interviewed Ms. K. that evening. She told him that she had left the bar with defendant to get some marijuana. Later, on the day of the preliminary hearing, she told him that she left the bar to get cocaine. She explained that she did not provide this information earlier because she was afraid of being prosecuted for cocaine possession.

The Defense

Defendant testified that he was playing pool at the Pastime Bar when Ms. K. arrived. Eventually defendant bought everyone, including Ms. K., a drink. Defendant and Ms. K. began talking and he indicated that he could obtain some cocaine for her, however, he did not have his contact's telephone number with him. Since Ms. K. wanted him to go to his room to get the number, they then left the bar.

On the way to his room, they stopped at a liquor store. After arriving at defendant's room, defendant turned on the television for Ms. K. and then left to locate the cocaine. When he returned, defendant told Ms. K. that he was unable to reach his contact, but that he would try again in 15 to 20 minutes. Ms. K. agreed to wait and they began to play cards. They played strip poker and eventually they engaged in intercourse.

After about an hour, defendant left the room to call his contact, but again he received no answer. When he returned, Ms. K. was dressing. He told her what had happened and she demanded to know what he had done with her cocaine. She threatened him he was going to get it if he did not bring her cocaine. She then picked up her purse, pulled out a pair of scissors, and began waving them at defendant while demanding her cocaine. Defendant hit her three or four times on the left side of her face. She tried to kick him, but he finally got the scissors from her and told her to leave. He put the scissors in her purse. Ms. K. was hysterical and threatened revenge. After she left, defendant went to bed. He did not respond to the knock on his door, because he thought it might be some of her friends from the bar.

Discussion

I. Police Taping of Defense Counsel's Conversation

Defendant contends the charges against him should be dismissed because the police overheard and recorded a conversation between his attorney and his attorney's investigator at the Sunnyvale Department of Public Safety in violation of his constitutional right to counsel.

In June 1986 Thomas Mueller, defendant's trial attorney, and Brian Vierra, Mueller's investigator, met twice with Detective David Bridges at the Sunnyvale Department of Public Safety to view the evidence in the instant case. On one of these occasions, Detective Bridges left Mueller and Vierra alone in a room used for police interviews. After Bridges left the room, he walked past the detective equipment room where he heard voices. The room contained a monitoring system for a number of listening devices installed in several rooms in the building. Bridges entered the room to discover that the conversation being recorded was that of Mueller and Vierra. After listening to the conversation for 30 seconds to a minute, Bridges testified he shut off the tape, although there is no break in the tape to corroborate Bridges's testimony.

Detective Bridges did not know who turned on the recording equipment. He thought another officer had probably heard the conversation in the interview room and put on a tape. Officers frequently helped each other by checking the recording equipment as they passed to ensure that a tape had not been forgotten.

Detective Bridges heard Mr. Mueller outline the general facts of the case, that is, that it was a rape case where the people had met in a bar and gone to a hotel room. He denied hearing any discussion about possible defenses.

Detective Bridges gave the tape to Mr. Camacho, the deputy district attorney initially assigned to the case. Bridges told Camacho that the portion of the conversation he heard involved Mueller's description of Camacho. Bridges did not talk to anyone else from the district attorney's office about the tape.

According to Mr. Camacho, Detective Bridges told him only about that portion of the tape involving Mueller's description of himself, Mr. Camacho. Camacho took custody of the tape, but did not listen to it. He believed Detective Bridges had inadvertently made the tape. He never informed Mueller or Vierra about the recording nor did he discuss the tape with Mr. Titus, the deputy district attorney who eventually tried the instant case. In July 1986, Mr. Camacho left the...