People v. Davis, Cr. 21721

• Court: United States State Supreme Court (California)
• Writing for the Court: MOSK; RICHARDSON; BIRD
• Citation: 29 Cal.3d 814,633 P.2d 186,176 Cal.Rptr. 521
• Parties: , 633 P.2d 186 The PEOPLE, Plaintiff and Respondent, v. Michael Darrell DAVIS, Defendant and Appellant.
• Docket Number: Cr. 21721
• Decision Date: 31 August 1981

Page 521

176 Cal.Rptr. 521 29 Cal.3d 814, 633 P.2d 186 The PEOPLE, Plaintiff and Respondent,
v.
Michael Darrell DAVIS, Defendant and Appellant. Cr. 21721. Supreme Court of California, In Bank. Aug. 31, 1981.

[29 Cal.3d 818]

Page 522

[633 P.2d 187] George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief, Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Gary R. Hahn, William R. Weisman and Robert R. Anderson, Deputy Attys. Gen., for plaintiff and respondent.

[29 Cal.3d 819] Albert M. Leddy, Dist. Atty. (Kern), and Margaret E. Spencer, Deputy Dist. Atty., as amici curiae on behalf of plaintiff and respondent.

Barney Goldstein, Long Beach, for defendant and appellant.

Quin Denvir, State Public Defender, and Edward Schulman, Deputy State Public Defender, as amici curiae on behalf of defendant and appellant.

MOSK, Justice.

After a jury trial defendant, 16-year-old Michael Darrell Davis, was convicted of the rape and first degree murder of 13-year-old Deboruh Morgan. Because of the victim's age, defendant was also convicted of committing a lewd and lascivious act on a child under the age of 14. Two special circumstances were charged and found to be true. (Former Pen.Code, § 190.2, subds. (c)(3)(iii) and (iv).) ¹ Hence defendant, who as a minor

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[633 P.2d 188] is exempt from the death penalty (former § 190.5), was automatically sentenced without a penalty hearing to life imprisonment without possibility of parole. (See former § 190 et seq.)

On appeal, defendant challenges the legality of the police procedures by which his confession was elicited, and asserts a denial of his right to confront an important witness. As will appear we find no constitutional violation in these circumstances, and therefore affirm the conviction. However, we find the sentence of life imprisonment without possibility of parole unauthorized by statute in this case, and therefore reduce the sentence to provide for a term of life imprisonment.

I

Defendant was convicted primarily on the basis of his confession, which established the following facts: Defendant and the victim were walking in Houghton Park at approximately 5:30 p.m. on September 15, 1978. After repeatedly telling him to leave her alone, the victim hit defendant with her notebook. Defendant became angry, grabbed the victim's hat, and threw it in the bushes. As she went after the hat, defendant followed her into the secluded area and choked her until she was unconscious. He then raped her and, when she started to show signs of regaining consciousness, strangled her because he was still angry and feared she would tell others what he had done.

[29 Cal.3d 820] Defendant makes three separate challenges to the admissibility of his confession. He contends the confession was (1) the fruit of an illegal seizure, (2) the fruit of an arrest made without probable cause, and (3) involuntary. The contentions are not persuasive.

Defendant first maintains his transportation to the police station for questioning was a seizure violative of the Fourth Amendment. On September 28, 1978, defendant was telephoned by Officer Collette, a local police detective investigating the murder. The officer asked defendant if he would be willing to arrange a meeting to discuss the incident. Defendant agreed and made an appointment to meet the officer in Houghton Park at 2:30 the next afternoon. Defendant arrived promptly at the appointed time and place accompanied by a friend, apparently from the nearby high school. Because the two officers who met him wished to speak with defendant privately, and because the park was crowded with other students, Officer Collette asked if defendant would be willing to come to the police station for the interview. ² After a brief discussion with his friend, defendant agreed to go; he did not appear nervous or concerned, according to Officer Collette. En route, defendant and the officers engaged in a friendly conversation about football, and the present crimes were not mentioned. At the station defendant voluntarily spoke with the officers about the incident.

Defendant contends that Dunaway v. New York (1978) 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824, compels the conclusion that an arrest occurred when he was transported to the police station. In that case, the police had vague suspicions that Dunaway, a teenager, was involved in a robbery. Despite the absence of probable cause, they decided to arrest him. They located him at a neighbor's residence and asked him to accompany them to the station without informing him that he was free to refuse. Although he consented to their request, they were prepared to physically restrain him if he did not cooperate. Without revealing which of these facts it found determinative, the high court held that defendant was thereby seized for purposes of the Fourth Amendment. (Id. at p. 207, 99 S.Ct. at p. 2253.)

The present case is distinguishable on two grounds. First, in Dunaway the

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suspect was not free to leave, although he [633 P.2d 189] may have incorrectly assumed he was. The court relied heavily on that fact (see, id. at pp. 207, [29 Cal.3d 821] 212, 215, fn. 17, 99 S.Ct. at pp. 2253, 2256, 2258, fn. 17), apparently finding it persuasive proof that the suspect was deprived of his freedom of action. ³ Because the officers candidly admitted they would have not released the suspect had he requested to leave, there was little need to inquire into his perception of the situation.

Here, on the other hand, Officer Collette testified that at the time of the voluntary meeting in the park he did not intend to arrest defendant, who was free to leave if he so desired. Defendant offered no proof that he was restrained or threatened with physical restraint. Consequently, the trial court could justifiably conclude that no actual deprivation of freedom occurred.

Second, defendant was not as likely as the suspect in Dunaway to be reasonably convinced that he was deprived of his freedom of action. Some teenagers, when unexpectedly confronted with police who ask to be accompanied to the station, are likely to be intimidated into submission simply by virtue of the sudden and imposing presence of uniformed authority. But this defendant initially spoke to Officer Collette by telephone, and was asked if he would meet with the officers not immediately, but at his convenience. Defendant chose both the time and place of [29 Cal.3d 822] the meeting. In the interim, he had ample time to consider what he would say, to anticipate what the police would ask, to consult with parents or others, or to cancel the appointment altogether. Even a person inexperienced with law enforcement, like defendant, would find it implausible that officers who intended to arrest him would call in advance and ask him to name a convenient time and place for that purpose. Consequently, defendant had little reason to believe the officers intended to place him in custody, and the trial court was justified in concluding that defendant was not actually in custody until later in the investigation. ⁴ (Cf. People v. Butterfield (1968) 258 Cal.App.2d 586, 590, 65 Cal.Rptr. 765.)

Page 525

Defendant next contends the police lacked probable cause to arrest him at the [633 P.2d 190] time they informed him he was under arrest. A review of the information possessed by the police at that time supports the trial court's ruling that the arrest was valid.

The officers were aware that the victim had been strangled and apparently raped in the park sometime on the evening of September 15. They had found the victim's shoes, pants, and a notebook containing several names and addresses in the bushes some 100 yards from the body of the victim.

Suspicion focused on defendant, who attended the high school adjacent to the park, when a schoolmate informed the police that he saw defendant and the victim walking in the park on the evening of the 15th at approximately 5:30. He reported that the victim and defendant were arguing, and that the victim repeatedly told defendant to get away from her. He saw the victim hit defendant with an object he could not identify. The witness then left the area of the park, where defendant and the victim remained. This information was partially corroborated by another witness who told the police that she saw a female and a male, generally fitting defendant's description, arguing in the park about 5:30 p. m. She heard the female angrily exclaim, "Get away from me, get away. You play too rough." Although the witness was not able to positively[29 Cal.3d 823] identify the male from the high school yearbook, when defendant's picture was pointed out to her she said it was the one that most resembled the person she had seen.

Two other witnesses reported that they saw the victim walking with a male in the vicinity of the park at roughly the same time, but one was unable to give any further description of the male, and the other gave a description somewhat inconsistent with defendant's appearance.

Upon defendant's arrival at the police station, the officers informed him of his Miranda rights, but he expressed his willingness to talk. He told them he knew the victim and had been walking through the park with her about 5:30 on the evening of her death. He described her clothing and revealed knowledge of the contents of her notebook. He denied, however, that they had argued or that the victim had hit him. He also declined to take a lie detector test. At this point, Officer Collette informed him he was under arrest.

The above facts constitute a substantial evidentiary basis for the trial court's conclusion that probable cause was established. Defendant's admission that he was with the victim at the approximate time of her death, the inconsistencies between his story and those of the other witnesses, and the evidence that he had been arguing with and possibly harassing the victim, could engender in a person using ordinary care a strong suspicion that...