People v. Flores

• Citation: 115 Cal.Rptr. 225,524 P.2d 353,12 Cal.3d 85
• Decision Date: 19 July 1974
• Docket Number: Cr. 17618
• Court: United States State Supreme Court (California)
• Parties: , 524 P.2d 353 The PEOPLE, Plaintiff and Respondent, v. Jesus Bracamontes FLORES, Defendant and Appellant. In Bank

Page 225

115 Cal.Rptr. 225

12 Cal.3d 85, 524 P.2d 353

The PEOPLE, Plaintiff and Respondent, v. Jesus Bracamontes FLORES, Defendant and Appellant.

Cr. 17618.

Supreme Court of California,

In Bank.

July 19, 1974.

Harold F. Tyvoll, San Diego, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., A. Wells Petersen and Harley D. Mayfield, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

Defendant appeals from an order granting probation (Pen.Code, § 1237, subd. 1) following conviction of burglary (Pen.Code, § 459) ¹ by court trial. He contends (1) that because the only evidence connecting him with the crime resulted from an unlawful detention and arrest the information should have been set aside on his pretrial motion therefor (S 995), AND (2)² that because the court failed to fix the degree of the offense before granting probation the crime must be deemed to be of the second degree. We conclude that defendant was lawfully detained and arrested and therefore properly convicted, but that because of the failure of the trial court to fix the degree of the crime the conviction must be found to be of the second degree.

Louis Quintero and his family were absent from their home from approximately noon of one day to noon of the following day. During the intervening evening at approximately 10:30 p.m. Norma Agundez, a neighbor, saw two men carrying television and stereo equipment from the Quintero home. She testified that each of the men was a Mexican-American and that each was approximately 5 feet 9 inches tall, weighed about 170 pounds and wore dark clothing. They placed the equipment in the trunk of a dark sedan of a vintage about the mid-1940's. Mrs. Agundez called another neighbor, Ronald Gaboury, and reported that she thought a theft was in progress.

Gaboury testified that following a telephone call from Mrs. Agundez he also observed two males in the act of removing stereo equipment from the Quintero home to an automobile. He described the men as Mexican-Americans, wearing dark clothing and wide-brimmed hats, each being 5 feet 8 inches to 5 feet 9 inches in height, and weighing 160 to 165 pounds. The vehicle, which was parked 'only about twenty feet' from the window through which Gaboury made his observations, was a dark colored, 'fastback' General Motors sedan of a model year somewhere 'in the forties.' He telephoned the police who arrived about 10 minutes after the suspects had left.

Officer Gary Reichle, on whose beat the Quintero burglary had occurred, monitored a radio report of the burglary and the following day read the official report, noting Gaboury's descriptions of the suspects and of their automobile. He looked for such a vehicle during the remainder of the night that he had heard the radio report and during the next three nights. In that period of time he observed only one automobile which fit the description. On investigation, however, it was determined that the vehicle had not been in an operating condition at the time of the commission of the crime. Four days after the burglary, during a routine evening patrol about two miles from the Quintero home, the officer saw a 1947 Pontiac which fit the description of the suspect vehicle. He ordered the driver to stop the car and discovered that it was occupied by four males of Mexican descent. The driver, who is the defendant, wore a wide-brimmed hat and fit the general physical description of the suspects. The officer advised defendant why the vehicle had been stopped and stated that defendant was a suspect in the burglary of the Quintero home. He properly advised defendant of his right to remain silent and to representation by counsel. Defendant said that he understood his rights and that he would respond to the officer's questioning.

Defendant stated that he had spent the night of the burglary with Nolberto Vasquez at a bar, had been there at the time the crime was reported to have occurred, and had no knowledge of the offense or of the Quintero residence. Vasquez, who was the registered owner of and a passenger in the vehicle, also waived his rights to remain silent and to be represented by counsel and stated that he could not remember where he had been on the night in question. He also stated that he often wore a wide-brimmed hat similar to that worn by defendant.

Officer Reichle, after conferring on the scene with the officers who had made the burglary investigation and report and had responded to Reichle's call, arrested the suspects. Exemplars of defendant's fingerprints taken at the time of his booking matched latent prints removed from a window through which the burglars had apparently entered the Quintero home.

Defendant argues that the illegality of his detention and arrest led to the discovery that he was the person whose latent fingerprints were removed from the Quintero window; that without such illegally seized evidence there remains insufficient competent evidence to hold him to answer; and that his timely motion to set aside the information should have been granted.

Fingerprint exemplars taken during an unlawful detention have been held to constitute tainted evidence subject to exclusion under Fourth Amendment constraints. (Davis v. Mississippi (1969) 394 U.S. 721, 726--727, 89 S.Ct. 1394, 22 L.Ed.2d 676; People v. Hernandez (1970) 11 Cal.App.3d 481, 492, 89 Cal.Rptr. 766.) However, for reasons which follow, we conclude that both the detention and arrest were proper, and that none of the evidence flowing therefrom was subject to exclusion. Accordingly, we need not reach the question whether the unchallenged evidence is sufficient in and of itself to warrant the denial of the motion. ³

A police officer may stop and question persons on public streets, including those in vehicles, when the circumstances indicate to a reasonable man in a like position that such a course of action is called for in the proper discharge of the officer's duties. (People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92, 95--96, 41 Cal.Rptr. 290, 396 P.2d 706; People v. Martinez (1970) 6 Cal.App.3d 373, 376, 86 Cal.Rptr. 49.) The good faith suspicion which warrants an officer's detention of a person for investigative reasons is necessarily of a lesser standard than that required to effect an arrest. (People v. Mosco (1963) 214 Cal.App.2d 581, 584--585, 29 Cal.Rptr. 644.) Where there is a rational belief of criminal activity with which the suspect is connected, a detention for reasonable investigative procedures in fringes no constitutional restraint. (See People v. Henze (1967) 253 Cal.App.2d 986, 988, 61 Cal.Rptr. 545.)

Officer Reichle in the instant case had acquired knowledge through official sources that a recent burglary had taken place on his beat. He knew the general description of the suspects and of the vehicle used by them. For four nights during routine patrol he had searched for such a vehicle and had discovered but one which fit the description, and that one had proved to be a false lead. When he observed a second such vehicle, unique primarily because of its vintage and occupied by persons who fit the general description of the suspects, he could reasonably entertain a sufficient good faith suspicion to warrant a detention of the occupants for investigative purposes. ⁴ In fact, to have neglected to investigate would have constituted a failure to properly discharge his duties as an officer of the law. Although Officer Reichle indicated that he would have stopped all vehicles fitting the general description furnished to him, the uniqueness of the described vehicle and the selective investigative procedures employed by him clearly did not constitute a 'dragnet approach' as claimed by defendant. (Cf. People v. Hutchinson (1967) 254 Cal.App.2d 32, 40, 61 Cal.Rptr. 868.)

In view of the foregoing the magistrate properly found present factual matters which warranted the detention of the vehicle, and such determinations will not be reweighed on appeal. (Perry v. Superior Court (1962) 57 Cal.2d 276, 283--284, 19 Cal.Rptr. 1, 368 P.2d 529; People v. Vermouth (1971) 20 Cal.App.3d 746, 756, 98 Cal.Rptr. 65.)

The magistrate made no specific finding as to the validity of the arrest but the record clearly establishes probable cause for the arrest. In addition to the evidence relating to the suspected vehicle, defendant and Vasquez both fit the general description of the suspects as to ancestry, height and weight; defendant was wearing the distinctive hat worn by the suspects; defendant stated that on the night of the burglary he was with Vasquez; Vasquez could not confirm defendant's assertion that they had spent the evening in question at a bar, although but four days had elapsed; and Vasquez stated that he, too, often wore the distinctive hat. Officer Reichle carefully verified his recollections of the matters stated in the police report by conferring on the scene with the officers who prepared the report before making arrests. Certainly, a man of ordinary caution and prudence could believe and reasonably entertain an honest and strong suspicion that defendant had participated in perpetration of the burglary of the Quintero's home. (See People v. Ingle (1960) 53 Cal.2d 407, 412--413, 2 Cal.Rptr. 14, 348 P.2d 577.) The arrest was thus lawful and the fingerprint exemplars were properly taken and were properly received into evidence at the preliminary hearing.

No claim is made that the evidence connecting defendant with the commission of the crime is insubstantial. In view of the incriminating fingerprints found at the site of the burglary in addition to the evidence constituting probable cause for arrest, such a claim would necessarily be rejected. (See Caughlin v. Superior Court (1971) 4 Cal.3d 461, 464--465, 93 Cal.Rptr. 587, 482 P.2d 211.)

Following conviction it was stipulated that the...