People v. Brown

• Citation: 173 Cal.Rptr. 877,119 Cal.App.3d 116
• Decision Date: 13 May 1981
• Docket Number: Cr. 34638
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ramona Estelle BROWN and James Donald McGinnis, Defendants and Appellants.

Page 877

173 Cal.Rptr. 877

119 Cal.App.3d 116

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ramona Estelle BROWN and James Donald McGinnis, Defendants and Appellants.

Cr. 34638.

Court of Appeal, Second District, Division 5, California.

May 13, 1981.

Herbert F. Blanck, under appointment by the Court of Appeal, Encino, for defendant and appellant Brown

Norman W. De Carteret, under appointment by the Court of Appeal, Sherman Oaks, for defendant and appellant McGinnis.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., William R. Weisman and Robert R. Anderson, Deputy Attys. Gen., for plaintiff and respondent.

KAUS, Presiding Justice.

Codefendants and appellants James McGinnis ("McGinnis") and Ramona Brown ("Brown") were charged with the murder of Raymond Brown ("Ray"), Ramona's estranged husband. It was also alleged that a principal in the offense was armed with a rifle within the meaning of Penal Code section 12022(a) and personally used the rifle within the meaning of Penal Code sections 12022.5 and 1203.06(a)(1). The defendants each pleaded not guilty. Brown's 995 motion was denied. Each of the defendants' motions under Evidence Code section 402 and Penal Code section 1538.5 was denied. Brown's motion for severance was granted.

Separate jury trials for each of the defendants were held. At the end of Brown's trial, the jury declared itself to be hopelessly deadlocked and the court declared a mistrial. Thereafter, Brown withdrew her plea of not guilty and entered a new plea of guilty of second degree murder. She also admitted the armed allegation. Probation was denied and Brown was sentenced to the upper term, seven years, with an additional year for the armed allegation which was ordered to run consecutively to the seven-year term.

McGinnis' jury trial resulted in a verdict of guilty of first degree murder and a finding that the armed and use allegations were true. McGinnis was sentenced to state prison for life.

Both defendants have filed notices of appeal from the judgment. Brown did not apply for or secure a certificate of probable cause as provided for in Penal Code section 1237.5.

Facts

As noted, the murder victim was the estranged husband of Brown. McGinnis was Brown's boyfriend. Brown and Ray had separated in about August or September, 1977. McGinnis, who was separated from his own wife, moved into the Browns' trailer home in Bloomington, California near San Bernardino with Brown and her three children by Ray. McGinnis was in the U. S.

Air Force and was employed as a mechanic at Edwards Air Force Base. Ray was employed at the Veteran's Administration Medical Center ("V. A.") in Sepulveda and lived in an apartment on Laurel Canyon Boulevard in North Hollywood.

There was evidence of some animosity among the principals. Brown's mother, Adelheid M. Logan, testified that Ray beat Brown and their children and that Brown told her Ray had molested the children around January 1, 1978. Stephen Forsythe, a friend of McGinnis and the Browns testified that McGinnis told him to give Ray "a warning" on three or four different occasions. He testified, "(a)t one time he told me to tell Ray to stay away from the boys (meaning Ray's three boys). That if he ever came around there he said something like I can't quote him exactly it was like, 'Blow his head off,' or something like that."

At the end of January, about two weeks before the shooting of Ray, Lupe Smith, the manager of the apartment where the victim lived, saw a "girl" and a man looking in the apartment house mailboxes. She asked them if they needed help and the girl said she was looking for Charlie Brown. Charlie Brown was Ray's nickname. The girl asked Mrs. Smith where Charlie's car was parked. Mrs. Smith said that Charlie Brown was in apartment five and that the girl would have to ask him where he parked his car. The girl told Mrs. Smith that she was Charlie Brown's wife. The girl resembled Brown "in the face."

On Sunday, February 12, the day before the homicide, defendants were at Brown's mother's house in Sepulveda. At about 10:30 a. m. they drove to the Veteran's Administration Medical Center where Ray worked. Brown asked Ray if she could borrow $10.00. Ray gave her the money and she said "Thank you, Ray. I'll pay you back Wednesday."

The defendants returned to Brown's mother's house where they remained until about 2:00 in the afternoon. At that time Ray came over to talk to Brown "about alimony." Ray told Brown "I cannot give you more. Only this much. And I will leave it with your mother every two weeks."

Shortly after Ray left Brown's mother's house, Brown, McGinnis and the three children also left. They drove in their pickup truck with a camper on the back to McGinnis' mother's house in Rosamond, California for a birthday party. They left Rosamond at about 9:00 that evening. McGinnis' mother believed they were going home to their house trailer in Bloomington.

McGinnis telephoned Edwards Air Force base at about 9:00 p. m. on February 12 and said he would be late for work on Monday if the weather was bad and if Highway 138 was closed. McGinnis normally got to work at 7:00 in the morning.

Ray was shot to death with a high powered rifle at about 6:00 in the morning on Monday, February 13, 1978. His body was found at about 11:00 a. m. that day lying between his car and another in the parking garage at his apartment house.

McGinnis was late to work on the morning of February 13. He arrived between 8:10 and 8:20 a. m.

Brown and McGinnis had their first contact with the police in the evening of February 13 at the home of Brown's mother in Sepulveda. McGinnis confessed to shooting Ray on February 15. ¹ Brown confessed to complicity in the murder on the same day.

Through his job at the V. A. Ray had had life insurance coverage of $25,000. The policy provided for double indemnity in case of death by accident or homicide. Brown was the beneficiary. Further, as a survivor annuitant, Brown would be entitled to about $175 per month until she remarried and her children collectively would be entitled to a total of $129 a month until they were 18, ² or if they went to college, until they were 22.

On March 8, Brown and her mother went to the V. A. where Ray had been employed to drop off a death certificate and fill out applications for his insurance and death benefits. ³ They had been contacted by the V. A. and asked to bring in Ray's keys and uniforms. It was the V. A.'s standard procedure to require the death certificate and to have the forms filled out.

DISCUSSION

I. BROWN's APPEAL

As noted previously, following a mistrial, Brown pleaded guilty to one count of second degree murder. The only issues raised on her appeal are claims that her tape recorded confessions were involuntary and obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. These issues were raised in the trial court by way of a pretrial motion which her counsel designated as being made pursuant to Penal Code section 1538.5. He claimed that "tangible evidence" the tape recorded statements was "obtained as the result of an illegal search of her mental process."

The present attempt to raise these issues on appeal is presumably made on the authority of Penal Code section 1538.5(m). Absent such authority, it is clear that such issues cannot be raised on an appeal following a guilty plea. (People v. DeVaughn (1977) 18 Cal.3d 889, 896, 135 Cal.Rptr. 786, 558 P.2d 872.) ⁴

It is clear, however, that the motion below was nothing more than a motion to suppress Brown's confession, based upon Fifth Amendment grounds, dressed up as a 1538.5 motion. Section 1538.5 "can be properly employed only to shield a defendant from Fourth Amendment violations; it has no part in protecting against Fifth Amendment infringements...." (People v. Superior Court (Zolnay) (1975) 15 Cal.3d 729, 734, 125 Cal.Rptr. 798, 542 P.2d 1390.) No claim was ever made that any tangible evidence aside from the tapes themselves, which were simply a memorialization of the statements was obtained as a result of the statements. (Cf., People v. Superior Court (Mahle) (1970) 3 Cal.App.3d 476, 484, 83 Cal.Rptr. 771.) The issues raised by Brown are not cognizable on appeal and the appeal must be dismissed.

II.

McGINNIS' APPEAL

A. Admissibility of McGinnis' Confession

At about 9:30 p. m. on February 13, Officers Quagliana and Jackson first talked with defendant McGinnis at Brown's mother's house in Sepulveda. The police knew that McGinnis was Brown's boyfriend and that Brown was the victim's estranged wife. However, at that time McGinnis was not a suspect in the case and McGinnis was not given the Miranda warnings. Officer Quagliana asked if he might search McGinnis' vehicle and McGinnis gave his consent. Before the search McGinnis told Officer Quagliana that there were some guns in it. The search revealed a .22 caliber rifle and a .45 caliber handgun.

The police asked McGinnis to return with them to the North Hollywood police station. McGinnis and Brown were transported to the police station in separate police vehicles. They arrived at the station at about 10:30 p. m. McGinnis was taken to an interrogation room. At this point McGinnis was Mirandized. He indicated that he understood his rights and that he wished to discuss the matter with the police. The ensuing interview commenced at 11:00 p. m. and lasted for about 45 minutes to an hour. McGinnis made no incriminating statements. He did however, make contradictory statements concerning the time and place he had last seen the victim. These contradictory statements led the police to believe that further investigation was necessary.

McGinnis agreed to take a polygraph examination on the next day. He and Brown were returned to Brown's mother's house by the police.

At about 10:00 a. m. on February 14, McGinnis and Ramona went to the North...