People v. Long

• Decision Date: 22 November 1985
• Citation: 220 Cal.Rptr. 312,174 Cal.App.3d 964
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 174 Cal.App.3d 964 174 Cal.App.3d 964 The PEOPLE, Plaintiff and Respondent, v. Charles Dwayne LONG, Defendant and Appellant. D001798.

Page 312

220 Cal.Rptr. 312

Previously published at 174 Cal.App.3d 964

174 Cal.App.3d 964

The PEOPLE, Plaintiff and Respondent, v. Charles Dwayne LONG, Defendant and Appellant.

D001798.

Court of Appeal, Fourth District, Division 1, California.

Nov. 22, 1985.

As Modified Dec. 5, 1985.

Review Granted March 20, 1986.

John M. Schau, San Diego, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., and Robert M. Foster, Deputy Atty. Gen., for plaintiff and respondent.

STANIFORTH, Acting Presiding Justice.

Charles Dwayne Long was charged with three forcible sex offenses committed against Kathleen K.: sodomy (PEN.CODE, § 286¹, subd. (c)), rape ( § 261, subds. (2), (3)), and lewd acts on a child under 14 ( § 288, subd. (b)). Each of these counts alleged enhancements. Long was also charged with three counts relating to Barbara G.: committing lewd acts on a child under 14 ( § 288, subd. (b)), assault with intent to commit rape ( § 220) and burglary of her inhabited residence at nighttime ( § 459). The forcible sex counts also alleged enhancements.

After unsuccessful section 995 and 1538.5 motions, defendant Long entered a plea bargain whereby he pleaded guilty to three counts in an amended information. Count I involved burglary of Barbara G.'s inhabited residence in the nighttime; count II charged Long with forcibly committing lewd acts upon Barbara G., a child under 14 (Pen.Code, § 288, subd. (b)); and count III charged Long with burglary of a realty office (Pen.Code, § 459). Long was sentenced to prison for a total term of 13 years, 8 months; 6 years for the residential burglary, the upper term of 7 years for the sex offense, consecutive to the residential burglary, and 2 years for the commercial burglary, consecutive to the other counts; all but one-third of the sentence on count III was stayed. He appeals.

FACTS

We deduce the following facts from the preliminary examination transcript, the transcript of the section 1538.5 hearing and the probation officer's report.

On October 4, 1980, 12-year-old Barbara G. was eating ice cream, watching television at home alone. About 9:45 p.m. she heard a noise and went to investigate. Long reached out from a corner in the hallway, put his hand over her mouth and said "Shut up or I'll kill you." He took her to the master bedroom, took off her pants, touched her breasts and tried to insert his finger into her vagina. When the 12-year-old victim told him to knock it off, he hit her in the left temple. This caused Barbara to black out briefly.

When Barbara came to, she told Long there was money in the kitchen. He told her she had three seconds to get it. While When the police arrived, Barbara showed them the bed in the master bedroom had been pushed away from the window. The screen was off the window, the window was wide open and the light was off. Before Long had entered the house, the bed was against the window at the wall and the window was only slightly opened. A fingerprint lifted from the windows matched Long's left thumb.

she was getting the money, he ordered her to turn off the lights and the television. She refused to turn off the lights but did turn off the television. During this conversation she could see half of his head and most of his body as he was standing in the corner. He was clean-shaven, wearing a Levi jacket, blue Levis and a blue shirt. He was five feet, six inches tall. She escaped through the back door and fled to her next door neighbor's home.

On October 12, 1980, Long entered a realty office and took some canned food and a soft drink.

On the night of November 10, 1980, 9-year-old Kathleen K. walked to the neighborhood Jack-in-the-Box to get some food. She saw Long preparing to cross the street. No one else was around. She walked ahead of Long. He came up behind her, grabbed her, put his hand over her mouth and carried her to a nearby shed. He told her he had a knife. He made her lie down on the floor and sodomized her, causing her to bleed. She ran home without any clothes. She was taken to Children's Hospital for treatment. She required a continuous locking suture about one inch across the perineum and one inch up the posterior wall of the vagina. A thumbprint and palm print found in the shed matched Long's.

Five days later, November 15, 1980, San Diego Police Officer Hodges received a radio dispatch requesting him to investigate a reported indecent exposure. Officer Hodges saw Long leaving the parking lot where the indecent exposure occurred. Long matched the description of the suspect, so Hodges stopped him. Long had no identification or ownership or registration papers on the motorcycle. The officer detained Long to run a warrant check confirming his identification. During the five- to ten-minute detention, the officer learned there was a possible arrest warrant for Long and the victim of the indecent exposure would not swear out a complaint against him. The officer arrested Long on the outstanding warrant. He took Long downtown to the police station for photographs and fingerprinting because the indecent exposure was a sex-related offense. At the station while Long was being fingerprinted and photographed, an outstanding warrant was confirmed. Long was then transported to the sheriff's department for booking on the warrant.

DISCUSSION

I

Long contends the trial court erroneously denied his section 1538.5 motion to suppress because the fingerprints and photographs taken from him at the police station were illegally obtained as a product of an unlawful detention. He claims once the officer determined the victim of the indecent exposure would not file a complaint against him, the officer lacked cause to further detain him at the scene of the stop. Thus, Long, relying on the Wong Sun "tainted fruit" doctrine (Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441) claims the fingerprints and photograph were "tainted fruit.".)

A temporary detention for questioning or investigation is justified when the circumstances known or apparent to an officer include specific and articulable facts which cause the officer to suspect (1) some activity relating to crime has taken place or is occurring or is about to occur, and (2) the person the officer intends to stop or detain is involved in that activity. (In re Tony C., 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957; see also People v. Aldridge, 35 Cal.3d 473, 478, 198 Cal.Rptr. 538, 674 P.2d 240.)

At a hearing on a motion to suppress evidence under section 1538.5, the trial court is vested with the power to determine credibility of witnesses, resolve conflicts in testimony, weigh the evidence and make factual findings. On appeal to this court, all presumptions favor the proper exercise of that power and the trial court's factual findings whether express or implied must be upheld if supported by substantial evidence. (People v. Superior Court (Keithley), 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 530 P.2d 585.) This court must view the entire record in a light most favorable to the prosecution. (People v. Johnson, 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.)

Here it is clear the initial detention was proper. Long matched the description of the suspect committing the act of indecent exposure. Officer Hodges saw him near the scene of the reported indecent exposure. Detaining Long for five to ten minutes to run a warrant check and to locate the victim of the indecent exposure was not unreasonable.

Without question the two-fold requirements of In re Tony C., supra, 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957, were met; Officer Hodges knew an indecent exposure had just occurred and had a reasonable suspicion Long was involved in that offense. The question remains whether the arrest made pursuant to the yet unconfirmed outstanding warrant was proper.

An arrest must be based on probable cause and probable cause exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the individual is guilty of a crime. (People v. Frierson, 25 Cal.3d 142, 169, 158 Cal.Rptr. 281, 599 P.2d 587.) Here, Long was detained for a short period of time (five to ten minutes) to verify his identity and to determine whether a citizen's arrest was to occur. He had no driver's license or other identification or registration papers for the motorcycle he was driving. It was during this short period of detention the officer learned there was an unconfirmed warrant somewhere in the law enforcement system for Long's arrest. Relying upon this information, the officer had reasonable cause to arrest Long.

In addition, the officer knew other objective facts which provided another basis for probable cause to arrest. Long did not possess identification, driver's license or vehicle registration. Driving without these documents constituted at least two Vehicle Code offenses--sections 12951, subdivision (a) (driving without a license) and 4454, subdivision (a) (failure to keep a registration). While these offenses are infractions under 40000.1, an individual can be arrested and can be taken into custody pursuant to Vehicle Code section 40302, subdivision (a). (People v. James, 1 Cal.App.3d 645, 648, 81 Cal.Rptr. 845; People v. Valdez, 239 Cal.App.2d 459, 462, 48 Cal.Rptr. 840, overturned on other grounds in People v. Doherty, 67 Cal.2d 9, 15, 59 Cal.Rptr. 857, 429 P.2d 177.) Thus, even if Officer Hodges did not have probable cause to arrest Long on the outstanding warrant, he did have probable cause to arrest him for the Vehicle Code infractions. " 'The fact an officer may place a person under arrest for the wrong offense does not invalidate the arrest and require exclusion of evidence seized incident to the arrest, if the officer nevertheless had probable cause to arrest the person for another offense. [Citations.]' " (People v. Lewis, 109 Cal.App.3d 599, 609, 167 Cal.Rptr. 326.)

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