People v. Goss, Cr. 3614

• Decision Date: 25 July 1980
• Docket Number: Cr. 3614
• Citation: 167 Cal.Rptr. 224,109 Cal.App.3d 443
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Donald Gene GOSS, Defendant and Appellant.

Page 224

167 Cal.Rptr. 224

109 Cal.App.3d 443

The PEOPLE, Plaintiff and Respondent, v. Donald Gene GOSS, Defendant and Appellant.

Cr. 3614.

Court of Appeal, Fifth District, California.

July 25, 1980.

Quin Denvir, State Public Defender, Ezra Hendon, Chief Asst. State Public Defender, Richard E. Shapiro, Deputy State Public Defender and Roy K. Simmons, State Public Defender, Sacramento, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Gregory W. Baugher and Paul H. Dobson, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

HAMLIN, Associate Justice. ^*

STATEMENT OF THE CASE

Appellant stands convicted, following a jury trial, of attempted burglary (Pen.Code, §§ 663, 459). He was placed on probation for two years; as a condition of probation he was ordered to serve 300 days in the county jail and to make restitution in the amount of $150. He has appealed the conviction, contending that the trial court erred by failing to suppress evidence of statements appellant made to law enforcement officers. Appellant argues that evidence of both his statements to sheriff's officers was inadmissible under People v. Hitch (1974) 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361, because a tape recording of one of the statements was erased by a secretary at the sheriff's department. Appellant also contends the court erred by requiring him to make restitution in the amount of $150 as a condition of probation.

THE FACTS

On the night of June 11-12, 1977, as Mr. Robert Swanberg was preparing to go to bed in his Visalia home, he heard something which sounded like the prying apart of wood. A few minutes later, Swanberg went outside to investigate. He followed the sound to one of the new, unoccupied houses in the subdivision where Swanberg saw two figures near the back of the new house. He told the people to halt, flashing his light on them. When they started to run, Swanberg fired a warning shot. The intruders continued running, but Swanberg was able to grab appellant Goss.

Swanberg told appellant to get down on the ground. Appellant asked if Swanberg was "the law," to which Swanberg replied he was a concerned neighbor. Appellant regurgitated and said he was so sick he didn't care if he was shot. He again attempted to flee, but Swanberg apprehended him in an open field. Swanberg detained appellant until officers from the sheriff's department arrived at about 1 a. m. (Swanberg's wife, having heard the commotion, called for help).

Sheriff's Officer Dale Hardin responded to the call. Appellant was taken into custody and Hardin investigated the area for evidence. He found an L-shaped tire iron near the unoccupied residence where Swanberg first observed appellant and the other person. Officer Hardin noted pry-marks on a window of the house and the sliding glass door had been pried open approximately 18 inches.

Appellant waived his Miranda rights and spoke with officers at the scene. Detective Alfred Richmond asked appellant why he had gone to the house in question. Appellant said he had been driving an automobile with a man named "Kenny" ¹ and that the car had run out of gas. He claimed that he and Kenny had walked to the residence to get some gasoline. Appellant explained that he went to the back door of the residence, and then he and Kenny started to run when a man began shooting at them.

An older model Pontiac was discovered about one-half mile from the house where appellant was found. There were several other obviously occupied houses between the car and the house in question. It was later determined that the Pontiac belonged to a friend, who had loaned the car to appellant that evening. A tire changing tool was missing from the car when the friend retrieved the car from the towing service which had towed it from the scene.

Murry Jackson towed the Pontiac from the location at which it was parked to his towing establishment during the early morning hours of June 12th. In looking through the vehicle, he found a wallet containing appellant's identification under the front seat. The car started right away after having been towed and the gas gauge registered one-quarter tank. The owner testified the gas gauge was not accurate, but the car did run from the towing service to a nearby gas station when reclaimed.

After appellant was taken to the sheriff's department, he again waived his Miranda rights and spoke with Detective Richard Logan. Logan testified that appellant made the following statement to him. Appellant borrowed a friend's car on the night in question because his own car was not operating, and he was using the friend's vehicle to transport a battery to his car. He claimed to have met "Kenny" at a Kwik Stop Market and solicited his help in driving one of the two cars after the battery was installed. While they were in the friend's car, Kenny told appellant to drive into a residential area. Appellant advised Kenny that they were getting low on gas and Kenny directed him down a road which Kenny thought would lead to a gas station. Appellant stated that they then ran out of gas and that they proceeded to walk toward where they believed the gas station was located.

Logan further testified that appellant told him Kenny suggested they "rip off" a microwave oven from one of the unoccupied houses in the subdivision through which they were walking. Kenny showed appellant another house where he said he had "ripped off" a microwave oven the night before. ² Kenny told appellant to go around to the back of the target house, which he did.

Officer Logan testified that after he obtained the foregoing statement from appellant (which was not recorded) he then decided to tape record a statement from appellant. He did so, played the tape back and heard the statement. He later turned the tape over to a sheriff's department secretary for transcribing. Some time shortly thereafter, Logan replayed the tape and discovered that nothing could be heard on it.

On cross-examination of Officer Logan, defense counsel read from the report Officer Logan had originally prepared after taking the first unrecorded statement from appellant. The original report didn't mention the portion of appellant's statement referring to burglarizing a house to "rip off" a microwave oven. That first report simply stated that appellant and Kenny went into the subdivision looking for a gas station and that appellant walked to the back of an unoccupied house, where he saw a man who started chasing him with a gun.

Officer Logan prepared a supplemental report after he discovered that the tape recorded statement had been erased. The supplemental report, set forth in part in the margin, ³ included incriminating remarks by appellant about the plan to burglarize the unoccupied house and take a microwave oven.

Appellant testified on his own behalf and denied attempting to commit a burglary. He also denied using a tire iron. In addition he offered an explanation for being in the subdivision with Kenny and for running from Swanberg.

Appellant denied admitting to Officer Logan that Kenny mentioned his plan to break into the house. He claimed that the incriminating admissions in the supplemental police report prepared by Officer Logan were untrue. He had no idea who caused the damage to the house.

An evidentiary hearing was held in connection with appellant's motion to suppress testimony of Officer Logan as to his statements pursuant to People v. Hitch, supra, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361. Detective Richard Logan testified concerning the two reports he prepared and the two statements he took from appellant. Logan said that Sergeant Henry Babcock was present when the first statement was taken; Logan was alone with appellant when the second statement was taken. Logan testified that the second statement (which was tape-recorded) was taken right after the first statement (which was not). Logan said the two statements were "substantially the same". Two days after taping appellant's statement, Logan took the tape to Cheryl Porter, the detective secretary, for transcribing. While Logan was giving the tape to Ms. Porter, he noticed another detective bring four or five tapes to her. The other detective deposited his tapes on Ms. Porter's desk and asked her to erase them. Detective Logan returned to his office, and about five minutes later, Ms. Porter came in to tell him she thought she had erased the tape of appellant's statement. Logan discovered the tape had been erased before transcribing. ⁴

Logan testified as to the office procedures for handling such tapes. He also testified he followed that procedure with the tape of appellant's statement. Appellant also testified at the hearing on the Hitch motion, to establish the materiality of the lost tape. He testified that the statements attributed to him in Logan's supplemental report were inconsistent with what he actually told Logan.

After hearing the foregoing evidence, the trial court took the matter under submission and later ruled as follows:

"IT IS HEREBY ORDERED THAT DEFENDANT'S MOTION TO SUPPRESS PURSUANT TO PEOPLE VS HITCH IS GRANTED AS TO THE SECOND CONVERSATION WITH THE OFFICER WHICH WAS TAPED, SAID TAPE HAVING BEEN DESTROYED.

"THE COURT WILL NOT SUPPRESS THE FIRST CONVERSATION OF THE DEFENDANT WITH THE OFFICER WHICH WAS NOT TAPED."

DISCUSSION

I. The Hitch issue was properly preserved for appeal.

After the court ruled on appellant's Hitch motion, appellant's counsel stated that he wanted to withdraw the motion at the commencement of the jury trial. He explained that he wanted to do this because the court's ruling that only the second statement would be suppressed left him in a worse position than if nothing had been suppressed. While the court's ruling allowed the officer to testify as to appellant's admissions, it precluded appellant from mentioning the destruction of the tape. Defense cou...