People v. Clark

Decision Date10 December 1969
Docket NumberCr. 15505
Citation82 Cal.Rptr. 682,2 Cal.App.3d 510
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph J. CLARK, Defendant and Appellant.

Richard S. Buckley, Public Defender of Los Angeles County, Charles A. Maple and James L. McCormick, Deputy Public Defenders, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Melvin R. Segal, Deputy Atty. Gen., for plaintiff and respondent.

AISO, Associate Justice.

Counts I and II of the information charged defendant and three others with having committed armed robberies (Pen.Code, § 211) of defendant's uncle, Paul W. Jordan, and a C. Wayne Milam, and count III charged them with having kidnaped the two robbery victims for purposes of robbery (Pen.Code, § 209). To these charges, defendant pleaded 'not guilty.' He then made: (1) a statutory pretrial motion under section 1538.5 of the Penal Code to suppress evidence allegedly obtained by an illegal search and seizure, and (2) a 'common law' pretrial motion to suppress a confession allegedly obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974; (Saidi-Tabatabai v. Superior Court (1967) 253 Cal.App.2d 257, 61 Cal.Rptr. 510). Both motions were denied. When the case was called for trial, defendant changed his plea on count I to 'guilty' of robbery in the second degree. Defendant was granted probation and counts II and III were dismissed 'in the interests of justice.' He appeals from the judgment (order granting probation). (Pen.Code, § 1237, subd. 1.)

Trial defense counsel's declaration filed under section 1237.5, subdivision (a), of the Penal Code states that he advised his client to plead guilty solely because of the trial court's denial of defendant's 1538.5 and common law motions to suppress evidence. The trial court's certificate of probable cause (Pen.Code, § 1237.5, subd. (b)) is directed to its rulings upon both motions.

Defendant contends here that both motions should have been granted. We have concluded that the 1538.5 motion was properly denied, but that the confession should have been suppressed because the Miranda warning given was inadequate as a matter of law.

I.

Joseph O. Garner, a customs inspector of 26 years' experience, was on duty on September 14, 1967, assigned to the United States Customs House in San Luis, Arizona. San Luis is a port of entry from Mexico, located approximately 25 miles south of Yuma, Arizona, which is the county seat.

About 2 p.m. that date a 1967 Pontiac Grand Prix bearing three males and one female crossed from Mexico into the United States where Garner was checking vehicles. He directed the car to be pulled aside for inspection to ascertain the nationality of the occupants and to search the vehicle for goods subject to duty. The males were all wearing long hair and beards; their clothes were soiled and dirty; they all smelled as if they needed baths. He remembered defendant, who was riding in the back seat, by his 'Abraham Lincoln' type of beard that distinguished him from the others.

The vehicle had California license plates. However, Garner's search of the car turned up no vehicle registration or any rental contract from which ownership of the car could be ascertained. He found a loaded .22 calibre pistol under the front seat on the passenger side, but did not deem it to be 'contraband' since it was of United States manufacture.

He asked the occupants of the car for information concerning the registered owner, but he was unable to obtain the information. Defendant told him that the car was loaned to him by a brother-in-law. The other males generally concurred that it belonged to a relative. The girl informed Garner that she was a hitchhiker and had no knowledge of the ownership of the car. She did state that 'they had entered Mexico at the port of Tijuana, Baja, California, and proceeded across Highway 2, and reentered (the United States) at San Luis.' She orally identified herself as Laura Jean Soldano, but she had no identification papers.

The driver of the vehicle identified himself as Jerry Dean Ivens. 1 The two in the back seat identified themselves as Joe Gordon (sic) Clark (defendant) and Ernest John Landon, Jr. Defendant had no identification papers. Ivens had a temporary California driving permit and a Mobil credit card with the name 'Milan' 2 on it. Landon had a Texaco credit card with the name 'Milam' also on it. Ivens stated that the credit card he had belonged to a cousin of his, who had received it from the cousin's uncle.

Garner became suspicious of '(w)here they got the car and why they had a pistol under the front seat,' and why two persons would each be holding credit cards bearing the same name 'Milam' which matched neither 'Ivens' nor 'Landon.' He, therefore, telephoned the Arizona Highway Patrol office at Yuma requesting a check of the license number on the car and its registration. As he had to leave for another assignment before the requested information was received back from the Highway Patrol, he informed his port director, Charles Taylor, of what had transpired and left with Taylor the credit cards, identifications of two of the occupants who had such, and his notes of the oral statements which the four persons had made to him (Garner).

Summoned by radio, Glen R. Green, a State of Arizona highway patrolman, and his partner, Ken Jacobs, came to the assistance of the border inspectors at San Luis. Green had been advised by radio that the border inspectors 'had a '67 Pontiac and four subjects at the port of entry, and they could find no proof of ownership in the vehicle; also there was (sic) some credit cards and a .22 revolver in the car.'

Upon arriving at the port of entry, Green talked to Port Director Taylor. Taylor told him that the two credit cards had been found in the glove compartment of the vehicle by customs inspector Garner, 3 and that the credit cards were made out to 'C. M. Milam.' Taylor also informed him of the revolver in the car.

Green then proceeded to check the vehicle and question the occupants. He noted the absence of any spare tire in the trunk (of this late model car), which had been left standing open after the customs inspection. Jerry Ivens, the driver at the time the car arrived at the port of entry, told him that the car had been given to him by a person named 'Paul' in Tijuana, but that he didn't know anything about him. Ivens also removed the revolver from under the front seat and handed it to Green. The others in the car said that they were hitchhikers and that they knew nothing about the ownership of the car. None of the four was able to produce any registration for the vehicle. All four told him that they did not know to whom the credit cards belonged.

Since the vehicle had a California license plate on it, Green radioed the dispatcher in Yuma to teletype the California authorities, supplying a description of the vehicle, the license plate number, and the names given to him by the occupants of the vehicle. He then detained the four for further ascertainment of the ownership of the vehicle, telling them that they could be held for vagrancy. They were transported to the Yuma sheriff's office. Green took the female person in his car; the three male persons were taken in a sheriff's car. While enroute to Yuma, Green learned over his radio that the car had been rented from the Budget Rent A Car, an automobile rental agency which he knew to be located in San Diego, by the use of either a lost or a stolen credit card and that it was to be returned on September 15th. Consequently, upon their arrival at the sheriff's office in Yuma, Green advised the four occupants of 'their rights' and informed them that they were under arrest for possession of a stolen vehicle. Upon cross-examination by defendant's trial counsel, Green acknowledged that he might have seen identification papers showing the defendant's home address to be 2922 Marion, Texarkana, Texas.

Joseph C. Cwik, 4 a special agent of the FBI working out of Yuma, interviewed defendant in the Yuma County jail on September 15 and 16, 1967. He had been briefed on what had transpired by the Arizona Highway Patrol and was conducting an investigation to ascertain if charges for interstate transportation of a stolen vehicle should be preferred against defendant. The Yuma County sheriff had also advised him of a communication from Detective Sergeant Ide of the Los Angeles Police Department that the individuals in custody were possibly involved in the robbery of a residence in Los Angeles for which charges of robbery and kidnaping might be filed. During the course of the interviews, defendant conversed with Agent Cwik concerning the robbery and kidnaping charges involved in this case.

Preliminary to his conversation with defendant on the 15th, Agent Cwik read a card to defendant, which stated: 'Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in a court. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer. A lawyer will be provided for you now if you wish by the Federal Public Defender's Office, Phoenix, Arizona, whom you may call at 253--7907.'

However, Agent Cwik told defendant that since he was not yet under federal arrest, the provisions regarding the federal public defender providing him with counsel were inapplicable.

Defendant then signed a written waiver attached to...

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