People v. Kilpatrick

• Decision Date: 01 May 1980
• Docket Number: Cr. 10322
• Citation: 164 Cal.Rptr. 349,105 Cal.App.3d 401
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Henry KILPATRICK, Defendant and Appellant.

Page 349

164 Cal.Rptr. 349

105 Cal.App.3d 401

The PEOPLE of the State of California, Plaintiff and Respondent, v. Henry KILPATRICK, Defendant and Appellant.

Cr. 10322.

Court of Appeal, Third District, California.

May 1, 1980.

Hearing Denied July 9, 1980.

Richard B. Parnell, Sacramento, under appointment by the Court of Appeal, for defendant and appellant

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Charles P. Just, Charles J. James, and David DeAlba, Deputy Attys. Gen., for plaintiff and respondent.

GROSSFELD, Associate Justice. ^*

Convicted by a jury of kidnapping (Pen.Code, § 207), rape (Pen.Code, § 261, subdivision 3), and oral copulation (Pen.Code, § 288a) with a finding of a prior felony conviction subject to enhancement under Penal Code section 667.5, subdivision (b), defendant appeals. He asserts reversible error (1) in the failure to exclude evidence seized from his automobile without a warrant; (2) in the failure to exclude evidence seized in a motel room incident to his warrantless arrest; (3) in the admission of the victim's identification testimony based on her pre-accusation visual confrontation with

defendant at the scene without the presence of counsel; (4) in the admission of defendant's statements obtained subsequent to his ambiguous request for assistance of counsel, and (5) in the imposition of consecutive sentences on the counts of rape and oral copulation. Our analysis of the above contentions causes us to affirm the judgment.

FACTS

We adopt the version of the facts most favorable to the People as the prevailing party. (People v. Rios (1976) 16 Cal.3d 351, 357, 128 Cal.Rptr. 5, 546 P.2d 293.)

About 6:00 p. m. on October 13, 1978, the victim was on her way to work at a hospital when a black man, subsequently identified as the defendant, knocked her to the ground and forced her into his dirty, white or tan, station wagon. While driving defendant forced the victim to lie on the front seat of the vehicle with her head on defendant's leg. Defendant would not allow her to look up to see his face or determine where they were going; hence, the victim saw very little but recognized freeway signs and realized they were traveling in a southerly direction. Defendant asked the victim how much money she had and how much money her husband would pay to get her back. Defendant forced her to take off her blouse and bra, then stopped on the shoulder of the road to drop his pants to his ankles, and resumed driving. Defendant compelled the victim to perform oral copulation and threatened to "cut" her if she did not cooperate.

Sometime later, defendant stopped the station wagon, instructed victim to totally disrobe; defendant then placed her hospital uniform pants over the victim's head, and achieved some penetration while attempting intercourse.

Again resuming driving, defendant continued his threats of "cutting" the victim. The defendant told the victim to put on her blouse and pants, pulled up his own pants, and drove to a motel. After obtaining a key and parking in the motel carport, defendant forced the victim to accompany him inside a motel room. Instructed to look down, the victim noted the room number 24 on the key.

Once inside the room, both undressed and got into bed. In a few minutes, defendant fell asleep and began snoring. As it was then daylight, the victim took a good look at defendant and left the motel, still unclothed. The victim sought assistance from an elderly woman at a house across the street from the motel and from there called the police.

After the police arrived, the victim advised the officers that she had been kidnapped and raped, that the assailant was a large black male, and that he was still in room 24 of the motel across the street. She also told the officers that her purse and some of her clothing were still in the station wagon parked outside room 24 and the rest of her clothing was in the room.

The police officers went across the street, looked through the closed front window of the station wagon and saw in plain sight a woman's purse and undergarments. They then knocked on the door of room 24 several times and announced who they were. Hearing no response, they obtained a key from the motel office, unlocked the door, and announced their entrance. Finding defendant asleep in bed and unclothed, they arrested him. The police also found the victim's outer garments as well as defendant's clothes in the room. They removed the victim's clothing from the vehicle.

Defendant was given Miranda warnings at the scene. He was then taken across the street for the victim to view him. When told of the intended confrontation, defendant said, "Isn't my attorney supposed to be here?" The supervising officer told him the police were under no obligation to provide a lawyer for a visual confrontation directly after a crime. The officer also advised the victim that the police did not know whether or not a certain person was responsible for the crime and wanted her to view this person to see if she recognized him. She positively identified defendant, clad in blue jean pants with handcuffs removed, as her assailant.

At the police station approximately an hour later, the same supervising officer readvised At trial, defendant denied, inter alia, ever making such statements or ever seeing the victim before the visual confrontation across the street from the motel. In contradiction, the victim stated in court she had no doubt about defendant's identification as her assailant. She also independently remembered that her assailant was a very large black man sporting a beard and was wearing blue jeans and scuffy work shoes at the time.

defendant of his Miranda rights ¹ and specifically mentioned defendant's previous request regarding an attorney in the context of the visual confrontation with the victim. Thereafter, defendant waived his Miranda rights and told the officer that he had imbibed two six-packs of beer during the night and had picked up the victim in the downtown area. He claimed she went with him willingly and did not recall having her orally copulate him but that could have happened. He also did not recall being close to the hospital but he could have been there.

DISCUSSION

I

Defendant contends that the evidence found in his automobile without a warrant was obtained as a result of an unreasonable search and seizure.

There is no search in the constitutional sense where police officers observe things in plain sight from a place they have a right to be. (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 634, 108 Cal.Rptr. 585, 511 P.2d 33; People v. Hill (1974) 12 Cal.3d 731, 748, 117 Cal.Rptr. 393, 528 P.2d 1; (overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5, 135 Cal.Rptr. 786, 558 P.2d 872); People v. Ott (1978) 84 Cal.App.3d 118, 127, 148 Cal.Rptr. 479.) The open carport area was used commonly by all motel tenants and thus was not a private, constitutionally protected space. Defendant's car was parked in the carport, and the victim's apparel was in plain sight without opening any doors or entering the car. "Any expectation by defendant of privacy as to objects in plain sight in the car would have been unreasonable, and no constitutionally protected right of privacy was violated when the officers looked through the window of the car." (People v. Terry (1969) 70 Cal.2d 410, 428, 77 Cal.Rptr. 460, 472, 454 P.2d 36, 48; People v. Hill, supra.)

Furthermore, there is no search in the constitutional sense where police seize evidence in plain sight reasonably believed to be evidence of a crime. (People v. Wheeler (1974) 43 Cal.App.3d 898, 903, 118 Cal.Rptr. 205; People v. Hill, supra.) The police were justified in taking into custody the clothing which had been since the victim had told the police that she had just been sexually assaulted in the station wagon while nude and her purse and undergarments were still in the vehicle near room 24.

Contrary to defendant's assertion, the fact that the officers had foreknowledge of the presence of evidence in his automobile is of no constitutional significance. "(T)here is no 'inadvertence' requirement in this state" for evidence seized in plain sight. (People v. Cooper (1978) 83 Cal.App.3d 121, 131, 147 Cal.Rptr. 705, 709, citing North v. Superior Court (1972) 8 Cal.3d 301, 307-308, 104 Cal.Rptr. 833, 502 P.2d 1305.)

II

Defendant also argues that his warrantless arrest inside the motel room was illegal under the principle set forth in People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, and consequently, that evidence seized in the room incident to such arrest must be suppressed. ²

The Ramey court held ". . . warrantless arrests within the home . . . per se unreasonable in the absence of exigent circumstances." (Id., at p. 276, 127 Cal.Rptr., at p. 637, 545 P.2d at p. 1341.) Recently, the Supreme Court also has clarified that the Ramey doctrine is applicable in the context of a rented motel room. (People v. Escudero (1979) 23 Cal.3d 800, 807, 153 Cal.Rptr. 825, 592 P.2d 312; People v. Frierson (1979) 25 Cal.3d 142, 167, 169, 158 Cal.Rptr. 281, 599 P.2d 587.) It applies both to a long-term lessee and a transient guest who takes a room, however briefly, in a motel. (Escudero, supra; see also People v. Lopez (1979) 99 Cal.App.3d 754, 765, 160 Cal.Rptr. 774; James v. Superior Court (1978) 87 Cal.App.3d 985, 990, 151 Cal.Rptr. 270.)

We thus address the question of exigent circumstances. In the Ramey context, ". . . 'exigent circumstances' means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the...