People v. Dominguez

• Decision Date: 07 December 1971
• Docket Number: Cr. 19985
• Citation: 99 Cal.Rptr. 42,21 Cal.App.3d 881
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. John Gilbert DOMINGUEZ, Defendant and Respondent.

Page 42

99 Cal.Rptr. 42

21 Cal.App.3d 881

The PEOPLE of the State of California, Plaintiff and Appellant, v. John Gilbert DOMINGUEZ, Defendant and Respondent.

Cr. 19985.

Court of Appeal, Second District, Division 2, California.

Dec. 7, 1971.

Hearing Denied Feb. 3, 1972.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., Joseph P. Busch, Jr., Dist. Atty., Harry Wood, Head, Appellate Div., Robert J. Lord, Deputy Dist. Atty., for plaintiff-appellant.

Richard S. Buckley, Public Defender, James L. McCormick, Charles R. English, Harry W. Brainard, Deputy Public Defenders, for defendant-respondent.

ROTH, Presiding Judge.

The People appeal from an order setting aside the information (Penal Code, section 1238, subdivision 1) charging defendant with the grand theft of an automobile and the unlawful taking of the same vehicle. (Penal Code, section 487 and Vehicle Code, section 10851, respectively.)

Sometime during the early evening hours of October 21, 1970, a vehicle belonging to Mr. Suk K. Lee was stolen from its parking place on 36th Street in Los Angeles. Apparently shortly after the theft, Officer Alvarez observed Mr. Lee's vehicle with four passengers, all appearing to be Negroes, proceeding at about 25 miles per hour in a direction opposite to that of the (police) vehicle in which he was driving. Alvarez made a U-turn and followed the vehicle; his suspicion had evidently been already aroused ¹ for he checked the license number of the vehicle through the Department of Motor Vehicles. As a result of that check, Alvarez learned that the vehicle was registered to Mr. Lee and that it was Not listed as stolen. The ensuing events are best described in Alvarez' testimony at the preliminary hearing:

'Q 'Why did you stop that vehicle? A There were four, appeared to be four persons in the vehicle, all appearing to be Negros, and didn't seem to fit the name of the owner that came back from Communications. Q What did you find out, what did you find or what happened after you stopped the vehicle? A We asked the driver, the defendant Dominguez for identification, he had none. We asked him who the owner of the vehicle was, he stated that a friend of his named Charles Jones, who lived in Downey, had given him permission to drive the vehicle. Q What else--what did you do then? A We checked the registration on the wheel and it was registered to a Suk K. Lee. These conflicting statements from the defendant led us to believe--and, also the wind wing, right wind wing was broken on the vehicle, led us to believe that this wasn't Mr. Dominguez's vehicle. We asked him to go to the station with us. On the way to the station my partner, Officer McNamarra, read from LAPD form 15.5 (sic.), advising Mr. Dominguez of his constitutional rights.'

It was after the Miranda admonition referred to that the defendant waived his rights and then confessed to the crime in the words 'I stole the car in the vicinity of SC campus.' The warning, as well as the immediately ensuing confession, was administered and took place in the police vehicle which was en route to the station.

While circumstances short of probable cause for making an arrest may warrant temporary detention for purposes of investigation (Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889), a detention based on a 'mere hunch' is unlawful: 'There must be a 'rational' suspicion by the peace officer that some activity out of the ordinary is or has taken place * * * some indication to connect the person under suspicion with the unusual activity * * * (and) some suggestion that the activity is related to crime.' (Irwin v. Superior Court, 1 Cal.3d 423, 427, 82 Cal.Rptr. 484, 486, 462 P.2d 12, 36.)

At bench, the stop and detention were made on the 'hunch', and nothing more, that the vehicle was stolen--a hunch which was not abandoned even after the vehicle was found not to be listed as stolen. The fact, such as it was, that defendant did not match what the officer thought Mr. Lee, the registered owner, should look like, namely oriental, provides no basis for a detention and is in and of itself questionable as the superior court stated '* * * if the Court * * * takes a look at Mr. Dominguez, it is obvious to me that he is not a Negro. My first impression is that he is of Mexican descent, And might even be Oriental to some degree.' (Emphasis added.)

The People contend that '* * * it was simple (sic) good police work for him (Alvarez) to be suspicious of it when it contained four Negroes But no Orientals.' (Emphasis in original). Good police work, however, includes obedience to the law, as well as an officer's sixth sense.

The record demonstrates that the detention and ensuing investigation did not net the requisite probable cause for the arrest (Penal Code, section 836) which followed. Thus, prior to the detention there had been no unusual activity in the car, it had been proceeding lawfully, there were no reports of fresh crimes in the vicinity, the occupants of the car were unknown to Alvarez, the vehicle was not listed as stolen, and the area, at least as far as the record reveals, was not a 'high crime' neighborhood. ² The only items uncovered by the unlawful detention was that defendant stated that the vehicle's owner was one Charles Jones and that the wind wing of the car was broken.

While a discrepancy between a motorist's explanation and certain facts known to the officer may justify and indeed mandate investigation, the legal bases for Police inquiry are considerably less exacting than placing an individual under arrest, as was done here, and transporting him to jail. Even assuming that the detention was lawful--

--all investigation was abandoned after defendant's statement about Charles Jones: no questions were addressed to the passengers; no demand was made for a driver's license; ³ no second check was made as to the vehicle's status--which, made after the confession, produced the information that the vehicle had been stolen; and, as appears from the record, no questions of any kind were asked of the defendant such as might properly have explored--Investigated--the discrepancy between the claimed and registered owner of the car.

The arrest, as the detention, was unlawful.

The remaining issue is whether the confession is rendered inadmissible by the unlawful arrest which preceded it. (People v. Johnson, 70 Cal.2d 541, 552, 75 Cal.Rptr. 401, 450 P.2d 865.)

The recognized distinction between a confession obtained after confrontation with evidence secured by an unlawful search and a confession made after an unlawful arrest (People v. Johnson, Supra, 552, 75 Cal.Rptr. 401, 450 P.2d 865) must be made in the case at bench. The inquiry must be whether the confession was voluntary, notwithstanding the fact that defendant was (illegally) under arrest at the time he made the confession. Unlike an instance where a confession is produced by a confrontation with illegally obtained evidence, at bench the '* * * custodial environment is merely one factor (though a significant one) to be considered in determining whether the confession is inadmissible.' (People v. Johnson, Supra, 552, 75 Cal.Rptr. 401, 408, 450 P.2d 865, 872.)

The cardinal and dispositive issue in a case such as this where a confession supplies every element of the charged crime is the issue of voluntariness. It is true that in the recent case of People v. Williams, 8 Cal.App.3d 44, 86 Cal.Rptr. 821, the identical issue was considered in terms of Attenuating the taint of the illegal arrest. However, as the extensive footnote number 4 in People v. Johnson, Supra, at page 552, 75 Cal.Rptr. 401, 450 P.2d 865 shows, the real thrust of the inquiry is Voluntariness and the question of 'attenuating the taint' of the illegal arrest is relevant only insofar as it is subsidiary or necessarily included in the question whether the confession was voluntarily made. The importance of subordinating attenuating to the main line of inquiry appears from the fact, recently recognized in People v. Magana, 272 Cal.App.2d 388, 390, 77 Cal.Rptr. 436, that the Miranda warning itself may operate to render the confession voluntary and thus admissible. In Magana, a concededly illegal arrest was followed by a Miranda warning, and while still at the scene of the arrest, by a confession. Justice Thompson, writing for the Court of Appeal, emphasized that the effect of the illegal detention was dissipated by the Miranda warning and found from the 'spontaneous nature' of the suspect's statement that the trial court had not erred in admitting it into evidence. (272 Cal.App.2d at 390, 77 Cal.Rptr. 436.)

At bench, while the superior court addressed itself to the question of the legality of the detention and resolved it, as we have seen, correctly, the record of the hearing on the motion under Penal Code, section 995 shows that the question of the admissibility of the confession, which, of course, supplies all the necessary evidence for a conviction provided it is admissible, was not resolved or considered.

Although the record as presently constituted contains the...