People v. Dominguez, C001631

• Citation: 201 Cal.App.3d 345,247 Cal.Rptr. 81
• Decision Date: 17 May 1988
• Docket Number: No. C001631,C001631
• Parties: The PEOPLE, Plaintiff and Respondent, v. David DOMINGUEZ, Defendant and Appellant.
• Court: California Court of Appeals

Page 81

247 Cal.Rptr. 81

201 Cal.App.3d 345

The PEOPLE, Plaintiff and Respondent, v. David DOMINGUEZ, Defendant and Appellant.

No. C001631.

Court of Appeal, Third District, California.

May 17, 1988.

Certified for Partial Publication ^*

Review Denied Aug. 11, 1988.

Frank O. Bell, Jr., State Public Defender, Thomas L. Carroll, Deputy State Public Defender, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., W. Scott

Thorpe, Supervising Deputy Atty. Gen., Clayton S. Tanaka, Deputy Atty. Gen., for plaintiff and respondent.

SPARKS, Acting Presiding Justice.

This case presents issues relating to the validity of a booking search of a murder suspect at the county jail. Convicted of two murders, defendant claims that the search was motivated by improper investigatory police motives and consequently exceeded the permissible scope of such an administrative search. We find the claim untenable and affirm the judgment.

On the evening of September 29, 1984, defendant fatally shot two male acquaintances. Charged with their murders, a jury found the defendant guilty of a murder in the first degree in the first killing and a murder in the second degree in the second. (Pen.Code, §§ 187, 189.) The jury further found that defendant personally used a firearm in the commission of the murders. (Pen.Code, § 12022.5, subd. (a).) They also found as a "special circumstance" that he was guilty of more than one count of murder, at least one of which was in the first degree. (Pen.Code, § 190.2, subd. (a)(3).) For the first degree murder with special circumstances, the trial court sentenced defendant to state prison for life without possibility of parole plus two years for the use enhancement. On the second degree murder count, the court imposed "the term prescribed by law," namely 15 years to life. The court further imposed the firearm use enhancements consecutive to the murder terms.

In the published portion of this opinion we reject defendant's contention that the police illegally seized and read incriminating documents in his possession at the time of his booking at the Placer County Jail. In the unpublished part we also reject his other argument that prosecutorial misconduct was sufficiently prejudicial to mandate reversal of his convictions.

The nature of the defendant's challenges renders superfluous any extended exegesis of the facts underlying the killings. It is sufficient to note the jury accepted the testimony of several witnesses and the prior inconsistent statement of the defendant's girlfriend. This testimony revealed that on the night in question in the City of Roseville, in a confrontation over money, the defendant fatally shot Jesse Laumbach point-blank, walked toward Jesse's younger stepbrother, Lazaro Quiroz, who was crouching behind a fence, and fatally shot him as well. Defendant then returned to the body of the first victim and shot him again. Additional facts necessary for an understanding of the issues will be incorporated in the discussion.

I

Prior to trial, the defendant moved to suppress evidence which had been obtained from him at the time of his booking. (Pen.Code, § 1538.5.) The following facts are derived from the testimony adduced at the hearing on the motion.

Three days after the shootings defendant surrendered himself to the police at the Roseville Police Station. Arrested for the murders, he was processed by booking clerk Harvey Gould. The booking procedure, Gould testified, "is to type a booking sheet listing all properties brought in with the subject, pertinent information to that subject; and then he is either photographed, fingerprinted, and allowed phone calls, finally placed into a cell." Pursuant to this procedure, Gould had the defendant empty his pockets. Essentially, the sole contents of his pockets were several folded newspaper clippings discussing the murders and a tube of heavy manila paper two to three inches long rolled to the thickness of a pencil and tied with white ribbon.

Roseville Police Detective James Fujitani arrived about five minutes later. Almost immediately upon Detective Fujitana's arrival, the defendant made a couple of incriminating remarks. Gould had finished recording the contents of the pockets and had moved on to collecting information from the defendant. Detective Fujitani saw the clippings and noticed they were about the killings. He asked defendant about the roll and he replied that it was a letter. The detective then asked if he could see it; defendant expressed a preference the officer not look at it. Detective Fujitani then asked if he could look at it later; when he got no answer, he put the roll down. Detective Fujitani told Gould he wanted to keep some of the items as evidence, but did not specify which ones. Nonetheless, he wanted to seize the roll and clippings as evidence. Although the roll and clippings were among the items in which he was interested, the only items he physically separated from the pile were articles of clothing worn by defendant. He took defendant away to be interrogated. While he was gone, Gould put all items save the articles of clothing in a clear plastic bag and put the bag in the property locker.

Shortly afterwards defendant and his property bag were transported to the Placer County Jail in Auburn by Detective Fujitani and his partner. They gave the booking clerk at the jail the bag of items and Detective Fujitani said he wanted some of the items inside as evidence. The clerk opened the bag, dumped the contents on the counter and began to inventory the items. As the clerk did so, Detective Fujitani set the clippings and the roll aside on the counter. The detective testified he had not taken those items earlier because they had been booked into a locked cabinet and he thought he needed a warrant once they had been bagged and put into the property locker at the Roseville Police Department. In any event, his partner picked up the roll, unwrapped it, and read it. Incredible as it may seem, the letter was a signed, handwritten confession to the murders. ¹ The clippings were also seized.

The prosecutor sought to justify the seizure under Illinois v. Lafayette (1983) 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65, as incident to defendant's booking. The trial court denied the motion "on both the ground that the federal law allowed the late booking search (U.S. v. Edwards (1974) 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771), and the ground that the doctrine of inevitable discovery (under both Federal and California law) would have obtained the property for the People (People v. Young [ (1984) 159 Cal.App.3d 138, 205 Cal.Rptr. 402 ^*, and Nix v. Williams [ (1984) 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377] )."

Defendant claims on appeal that the seizure of the items and the reading of the letter were not incident to his booking because the decision to seize and inspect them had been made prior to, and did not result from, the inventory of his property. Consequently, so the argument goes, this seizure without a warrant of the contents of the roll did not come within any of the "carefully circumscribed exceptions" to the rule that a warrantless search is "per se unreasonable" under the California and federal Constitutions. (People v. Laiwa (1983) 34 Cal.3d 711, 725, 195 Cal.Rptr. 503, 669 P.2d 1278.)

Since this is a post-Proposition 8 crime, the admissibility of the seized written confession and clippings is governed by federal constitutional standards. "What Proposition 8 does is to eliminate a judicially created remedy for violation of the search and seizure provisions of the federal or state Constitutions, through the exclusion of evidence so obtained, except to the extent that exclusion remains federally compelled." (In re Lance W. (1985) 37 Cal.3d 873, 886-887, 210 Cal.Rptr. 631, 694 P.2d 744; emphasis in original.) We turn then to those federal standards.

The United States Supreme Court has declared that "inventory searches are now a well-defined exception to the warrant requirement of the Fourth Amendment." (Colorado v. Bertine (1987) 479 U.S. 367, ----, 107 S.Ct. 738, 741, 93 L.Ed.2d 739, 745.) We briefly recount the cases establishing that exception. In 1976, the United States Supreme Court held that inventory searches of automobiles did not violate the Fourth Amendment. (South Dakota v. Opperman (1976) 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000.) There the police conducted a routine inventory search of an automobile lawfully impounded for violations of municipal parking ordinances. The officers found marijuana in the glove compartment. The question was whether this inventory violated the Fourth Amendment. The high court noted that "[a]pplying Fourth Amendment standards of 'reasonableness,' the state courts have overwhelmingly concluded that, even if an inventory is characterized as a 'search,' the intrusion is constitutionally permissible." (Id., at pp. 370-371, 96 S.Ct. at pp. 3097-98, 49 L.Ed.2d at pp. 1005-1006, fns. omitted.) The court then concluded "that in following standard police procedures, prevailing throughout the country and approved by the overwhelming majority of courts, the conduct of the police was not 'unreasonable' under the Fourth Amendment." ( Id., at p. 376, 96 S.Ct. at p. 3100, 49 L.Ed.2d at p. 1009.)

The high court extended that rationale to booking searches in Illinois v. Lafayette, supra, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65. In Lafayette, a police officer conducted an inventory search of the contents of a shoulder bag in the possession of a suspect being taken into custody. "The question here," the Lafayette court said, "is whether, consistent with the Fourth Amendment, it is reasonable for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police station incident to booking and jailing the suspect. The justification for such searches does not rest on...