People v. Jones

• Decision Date: 18 October 1967
• Docket Number: Cr. 12830
• Citation: 255 Cal.App.2d 163,62 Cal.Rptr. 848
• Parties: The PEOPLE, Plaintiff and Respondent v. Samuel Louis JONES, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 848

62 Cal.Rptr. 848

255 Cal.App.2d 163

The PEOPLE, Plaintiff and Respondent v. Samuel Louis JONES, Defendant and Appellant.

Cr. 12830.

Court of Appeal, Second District, Division 3, California.

Oct. 18, 1967.

Rehearing Denied Nov. 2, 1967.

Hearing Denied Dec. 13, 1967.

Henderson & Merenbach and Daniel E. Henderson, Jr. Santa Barbara, under appointment by the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Howard J. Bechefsky, Deputy Atty. Gen., for respondent.

FORD, Presiding Justice.

The defendant was accused of the crime of possession of marijuana (Health & Saf. Code, § 11530) and of the crime of rape (Pen.Code, § 261, subdiv. 5), it being alleged that he had an act of sexual intercourse with a named woman 'who was at the time unconscious of the nature of the act and this was known by the defendant.' Two prior narcotics convictions were alleged. In a nonjury trial the defendant was found guilty of the charge of possession of marijuana but he was acquitted of the crime of rape. ¹ The allegations as to prior convictions were found to be true. The defendant's motion for a new trial was denied. Probation was denied and the defendant was sentenced to be punished by imprisonment in the state prison for the term prescribed by law with respect to the offense of which he was convicted. He has appealed from the judgment.

The principal questions presented on this appeal are whether there was probable cause for the arrest of the defendant and, if there was such cause, whether the search of his clothing made at the time of the arrest was warranted as incident thereto. Pertinent portions of the record will be noted.

Upon the hearing of the motion to suppress the evidence as to the marijuana on the ground that it was obtained as the result of an illegal search and seizure, Officer Vazquez of the Oxnard Police Department was called as a witness. He testified that on March 23, 1966, at approximately 3:00 p.m. while he was on duty in a police vehicle, he received a radio call. He went to the Jiminez house and was admitted by Mrs. Jiminez, who pointed toward the den and said, 'My husband has him in the den.' As the officer entered the den he observed Mr. Jiminez standing near the bathroom door. The officer looked in the bathroom and saw the defendant; he was nude except for his socks. The physical appearance of the defendant indicated that he had recently participated in an act of sexual intercourse. ² The officer than walked toward a couch on which a woman, Betty Moya, covered with a blanket, was lying. He uncovered her and observed that she was partially unclothed; her panties and capris were around the ankle of her right leg and she was nude below the waist. She was not wearing a blouse. Her face 'appeared pale and white in color.' Her eyelids were covering her pupils. When he lifted her eyelids he noticed that the pupils were dilated. She neither moved nor spoke and she appeared to be unconscious. Mr. Jiminez told the officer that the house-keeper had been raped.

As to what he then did, Officer Vazquez testified: 'I approached the defendant, I asked him if he had had sexual intercourse with the person lying on the couch, and he stated yes. I asked him if she had given him permission and he stated yes. I asked him why she was in that state, the unconscious state, and he stated apparently that she had--was under the influence of some wine.' The officer further testified that he 'did not smell any alcoholic beverage at all.' He placed the defendant under arrest for rape, handcuffed him and asked him to sit down on a seat in the bathroom. He advised the defendant of his rights. Then the officer requested police assistance.

Officer Vazquez further testified that before the defendant's clothing was searched, Lieutenant Hawkins, Detective Zipay, and Detective Jones arrived and were in the house with him. The defendant said that he wanted his clothes, which were on a chair in the den. They consisted of a pair of trousers, a shirt, underwear and shoes. Lieutenant Hawkins told the defendant to dress, but before he had completed the act of getting into his trousers, Lieutenant Hawkins told Officer Vazquez to search the trousers. The officer did so. Upon handling the outside of the trousers he felt a hard object in the right front pocket, put his hand therein, and removed a 'brown paper folded up' which 'appeared like maybe something could have been inside of this paper.' Upon opening the paper he found what appeared to be three marijuana cigarettes, one of which was 'half smoked.'

The motion to suppress the evidence as to the marijuana was denied.

With respect to the matters pertinent on this appeal, the testimony of Officer Vazquez at the trial was in substance the same as that given by him at the hearing on the motion to suppress evidence. The advice as to his rights given to the defendant was related by Officer Vazquez as follows: 'I advised him that he had a right to an attorney and anything he stated could be used against him.'

At the trial Lieutenant Hawkins testified that as a result of what Officer Vazquez told him after his arrival at the Jiminez home he knew that the defendant was under arrest for a felony. The defendant requested his clothing. Lieutenant Hawkins told Officer Vazquez to remove the handcuffs and to give the clothing to the defendant. When the defendant started to put on his trousers, Lieutenant Hawkins told Officer Vazquez to search the clothing and Officer Vazquez did so.

The cross-examination of Lieutenant Hawkins was as follows: 'Q. Lieutenant Hawkins, at the time that you requested Officer Vazquez to search the defendant's clothing, you weren't looking for marijuana, were you? A. Not particularly, no, sir. Q. As a matter of fact, you weren't looking for any drug of any kind; is that correct? A. I didn't know what I was looking for, sir.'

The defendant did not testify.

We turn first to the question as to whether there was probable cause for the arrest of the defendant at the Jiminez home on the charge of rape. 'Reasonable or probable cause for an arrest has been the subject of much judicial scrutiny and decision. There is no exact formula for the determination of reasonableness. Each case must be decided on its own facts and circumstances (citations)--and on the total atmosphere of the case. (Citations.) Reasonable cause has been generally defined to be such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime. (Citations.) Probable cause has also been defined as having more evidence for than against; supported by evidence which inclines the mind to believe, but leaves some room for doubt. (Citations.) It is not limited to evidence that would be admissible at the trial on the issue of guilt. (Citation.) The test is not whether the evidence upon which the officer acts in making the arrest is sufficient to convict but only whether the person should stand trial. (Citation.)' (People v. Ingle, 53 Cal.2d 407, 412--413, 2 Cal.Rptr. 14, 348 P.2d 577.)

It is obvious that the appearance of the defendant and that of the woman on the couch readily and reasonably led to the conclusion that an act of sexual intercourse had occurred. Moreover, the woman's appearance was such that the officer was reasonably justified in concluding that she was in a state of unconsciousness. The circumstances constituted such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the defendant was guilty of the crime of rape accomplished under circumstances where the female involved was at the time unconscious of the nature of the act and which fact was known to the defendant. (Pen.Code, § 261, subd. 5.) Consequently, there was probable cause for the arrest of the defendant.

The determination just stated is not subject to successful challenge under the reasoning of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361. It is true that, as earlier noted in this opinion, Officer Vazquez did not inform the defendant of his constitutional rights prior to questioning him as to whether he had had sexual intercourse with the woman, as to whether she had consented, and as to the reason why she appeared to be unconscious. But such inquiry did not constitute a process of interrogation that lent itself to eliciting incriminating statements. The inquiry was of an investigative nature, the sole purpose thereof being to determine whether in fact a crime had been committed. (See People v. Washington, 237 Cal.App.2d 59, 64, 46 Cal.Rptr. 545.) Except for the admission that an act of intercourse had occurred, the answers given by the defendant were of an exculpatory character in that he stated that the intercourse had been with the woman's consent and in that he explained that her apparent unconsciousness was due to overindulgence in the use of wine. But, even assuming that there was a violation of the Escobedo-Dorado rule, the trial court could reasonably draw the inference that such inquiry had no appreciable effect with respect to the officer's decision to arrest the defendant. Entirely apart from that conversation, the circumstances which the officer observed constituted probable cause for the arrest.

Not all searches are prohibited by the Fourth Amendment but only those which are unreasonable. (United States v. Rabinowitz, 339 U.S. 56, 60, 70 S.Ct. 430, 94 L.Ed. 653.)...