People v. Marquez

• Citation: 47 Cal.Rptr. 166,237 Cal.App.2d 627
• Decision Date: 22 October 1965
• Docket Number: Cr. 3711
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Jonas MARQUEZ, Defendant and Appellant.

Page 166

47 Cal.Rptr. 166

237 Cal.App.2d 627

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jonas MARQUEZ, Defendant and Appellant.

Cr. 3711.

District Court of Appeal, Third District, California.

Oct. 22, 1965.

John Ross, Jr., Court-appointed counsel, Sacramento, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., by Doris Maier, Asst. Atty. Gen., and Raymond M. Momboisse and Daniel J., Kremer, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

PIERCE, Presiding Justice.

After a court trial defendant was convicted of receiving stolen property. The principal contentions on appeal are (1) that prejudicial error was committed in admission into evidence of a statement made by defendant after his arrest under circumstances violating the Escobedo-Dorado rule (Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361); (2) that an illegal search and seizure produced the property stipulated to have been stolen; and (3) that proof that the goods had been stolen by someone other than the defendant is a necessary element of the crime of receiving stolen goods, and that the People, having failed to prove this, cannot support the judgment. We deny these contentions for reasons which will appear in the discussion following the statement of facts.

On June 8, 1964, two Stockton police officers in a patrol car stopped an automobile which was being driven without stoplights. One of them, Officer Tribble, asked the driver, the defendant, for his driver's license. Defendant did not have one. He did, however, have other identification, and as he got out of the car to show this Officer Tribble noticed a quantity of clothing on the floorboard of the car upon which one of the other male occupants of the vehicle (there were two men and a woman) was resting his feet. The officer thought this 'unusual,' since the clothing appeared to be new.

When Tribble was about to issue a citation for the traffic violation, another occupant of the car, Linares, stated that the car belonged to him but that he had asked defendant to drive since he, Linares, had been drinking. Linares did not have a driver's license either.

Officer Tribble phoned the Stockton Police Department and ascertained from its record bureau there was a 'stop' on defendant who was wanted for two charges of burglary. (There is nothing in the record indicating that these burglary charges were in any way identified with theft of clothing hereinafter to be related.) Defendant was arrested and handcuffed. The officer, remembering the clothing he had seen on the floorboard, decided to make a further search of the car. He asked consent, which was refused, but he opened the trunk of the car anyway, using the car keys which he had removed from the instrument panel. A large carton containing new clothing was found. The clothing was unaltered; the trousers were uncuffed. Sizes, prices and tage bearing the name of 'Hexom's' were still affixed to the garments. The officer estimated the value of the clothing to be approximately $1,000.

Hexom's store had been burglarized on June 3, 1964. At the trial it was stipulated that the clothing found in defendant's vehicle had been stolen from that store.

After the clothing was found Linares denied that the automobile was his. Officer Tribble again used the radio, had the names of the other occupants of the car 'run through' the records bureau and found they were not wanted.

At the trial, over objection, Officer Tribble was permitted to testify to his interrogation of defendant at the scene of the arrest and after the arrest, handcuffing and discovery of the stolen clothing. He had asked defendant where he had obtained the clothing and defendant said he had bought it in a Stockton bar from a Mexican whom he had known by his nickname, 'Coco.' Defendant said he had paid $80 for the clothes and that he had bought them because he thought the price was a bargain. Defendant had not been advised that he did not have to make any statement; neither was he advised of his right to counsel. He had not requested counsel.

After the arrest defendant was taken to the Stockton Police Station. The clothing was taken also. The other occupants of the car were not arrested. As the police car was driving way, defendant called out to Charlis Cervantes, the woman occupant of the car he had been driving, 'Those clothes are mine, baby.'

Tribble was the only witness called by the People at the trial. His testimony, plus the stipulation referred to above, constituted the whole case of the People.

Except for witnesses called by defendant for voir dire examination on the issue of the claimed illegal search and seizure, hereinafter to be discussed, defendant was the only witness who testified for the defense. His testimony was limited to his account of the purchase of the clothing from a Mexican in the Stockton bar. This testimony was similar in all material respects to the statement he had given Tribble, as testified to by the latter. On both direct and cross-examination, he insisted he had not stolen the goods and had not known the goods were stolen. He testified on cross-examination that although he had not known the goods were stolen he had bought them because they were a good bargain.

People v. Dorado, supra, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, holds that a defendant's statement taken by a police officer may not legally be introduced into evidence when at the time the statement is taken the following conditions exist: (1) the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect; (2) the suspect is in custody; (3) the authorities are carrying out a process of interrogation lending itself to eliciting incriminating statements; (4) the authorities have not effectively informed defendant of his right to counsel and of his absolute right to remain silent, and no evidence establishes that he has waived those rights. (People v. Dorado, 62 Cal.2d 338, 353-354, 42 Cal.Rptr. 169, 398 P.2d 361.)

As regards condition (2) of the Escobedo-Dorado rule, defendant was under arrest but the arrest was not as a suspect either for the theft of these particular goods or as one guilty of receiving them. The goods had not been discovered at the time the arrest was made. This raises a question which it is not necessary for us to decide here and we do not consider it.

It is a close question whether conditions (1) and (3) existed under the facts described above. At the time defendant's statement was made goods which obviously had been stolen from Hexom's store had been found in an automobile being driven by defendant. One or all of four occupants of that car could have been responsible for their presence there. Defendant was the driver of the car but according to Linares who at first professed to be its owner defendant was only driving as an accommodation to Linares.

After the goods had been found and a course of questioning by the police officer had begun, it is arguable that it was then still a general inquiry which commenced with questions put to defendant only because the officer had just ascertained that defendant was a person wanted for burglary. Interrogation might just as well have started with Linares who had announced that he, Linares, was the owner of the automobile and who had changed his story after the clothing had been discovered. Even assuming the fact that defendant was 'wanted' for burglary had focused suspicion on him, were the police officers thereafter undertaking a process of interrogation lending itself to eliciting incriminating statements? Or were they merely trying, starting with defendant, to give each occupant of the car an opportunity to explain the presence of the stolen goods in the car--or more particularly to explain his or her presence in the car which contained the stolen goods? (United States v. Konigsberg (3d Cir. 1964) 336 F.2d 844, 853; and see People v. Stewart (March 1965) 62 Cal.2d 571, 578, 43 Cal.Rptr. 201, 400 P.2d 97.) This determination of the intent of the interrogation is one which must be made by the court objectively. (People v. Stewart, supra, at p. 579, 43 Cal.Rptr. 201, 400 P.2d 97.) Such determination as applied to the facts of this case is one as to which courts might reasonably differ. The trial judge, in admitting the statement, expressed an opinion that the questioning was still investigatory. We do not meet the problem of deciding the correctness of that determination because we do not have to. ¹

Even assuming, without deciding, that all conditions laid down in the Escobedo-Dorado rule existed here and that the admission into evidence of the statement was error, we would have to say that the error was not prejudicial. Since the statement was not a confession it was not prejudicial per se. (People v. Dorado, supra, 62 Cal.2d 338, 356-357, 42 Cal.Rptr. 169, 398 P. 2d 361; People v. Hillery (May 1965) 62 Cal.2d 692, 712, 44 Cal.Rptr. 30, 401 P.2d 382.) We examine the record, therefore, to determine whether the statement caused a miscarriage of justice under article VI, section 4 1/2, of the California Constitution.

At the trial defendant expressly and emphatically denied he had had knowledge that the goods were stolen. If believed, the defendant's extrajudicial statement, coupled with his testimony, exonerated him. As in Hillery, supra, where the statement constituted an alibi, defendant's testimony was substantially similar to his statement.

True, the statement was improbable. But so was the testimony. That fact that defendant did know that the goods which he withheld were stolen was thoroughly established--without recourse to the statement. Defendant was driving a car containing goods of the value of approximately $1,000. It was not only clear that they had been stolen, but the goods from their tags showed from...