People v. Superior Court (Sosa)

• Decision Date: 20 June 1983
• Citation: 145 Cal.App.3d 581,194 Cal.Rptr. 525
• Parties: The PEOPLE, Petitioner, v. The SUPERIOR COURT OF FRESNO COUNTY, Respondent; Alfred SOSA et al., Real Parties in Interest. Civ. 7297.
• Court: California Court of Appeals Court of Appeals

Page 525

194 Cal.Rptr. 525

145 Cal.App.3d 581

The PEOPLE, Petitioner, v. The SUPERIOR COURT OF FRESNO COUNTY, Respondent Alfred SOSA et al., Real Parties in Interest.

Civ. 7297.

Court of Appeal, Fifth District, California.

June 20, 1983.

As Modified on Denial of Rehearing

July 19, 1983.

Hearing Denied Sept. 8, 1983.

John K. Van De Kamp, Atty. Gen., and George Deukmejian, Fr., Atty. Gen., Daniel J. Kremer and Robert H. Philibosian, Chief Asst. Attys. Gen., Arnold O. Overoye, Asst. Atty. Gen., Eddie T. Keller and Gary A. Binkerd, Deputy Attys. Gen., Sacramento, for petitioner.

Quin Denvir, State Public Defender, and Charles M. Sevilla, Chief Deputy State Public Defender, San Diego, amici curiae on behalf of respondent.

Hinkly & Suhr and Paul R. Hinkly, Putnam & Morris, Carolyn M. Morse and Ralph L. Putnam, Hugh Wesley Goodwin, Fresno, for real parties in interest.

OPINION

ANDREEN, Associate Justice.

Original proceeding brought by the People to review a trial court order suppressing the statements and anticipated testimony of Juan Hernandez (Pen.Code, § 1538.5, subd. (o )), and the statements and anticipated testimony of Ramon Mendoza. ¹ Because the factual and legal issues are diverse, our discussion treats the issues concerning the two witnesses separately.

I. JUAN HERNANDEZ

A. FACTS

The three defendants (real parties in interest herein) are charged with the murder of Gilbert Roybal. Many of the operative facts, however, arise out of the murder of Ellen Delia on February 17, 1977. Her widower, Michael, was a suspect in his wife's and another's murder. His house was placed under surveillance. Defendant Sosa and another, Armando Varela, were illegally arrested when they drove to and parked in the driveway of the Delia residence. Thence commenced a series of illegal police conduct chronicled in People v. Superior Court (Sosa) (1982) 31 Cal.3d 883, 185 Cal.Rptr. 113, 649 P.2d 696 (Sosa/Delia ). ² This law enforcement action was better suited to a police state than a constitutional democracy and resulted in the affirmance of a trial court order suppressing evidence in Sosa/Delia. The decision rested upon an illegal arrest of Sosa and Varela, illegal questioning of Varela who implicated Gonzales, illegal search of Gonzales' home, and an illegal interrogation of Gonzales eliciting an implication of Juan Hernandez. Hernandez was arrested in April 1977 and detained for two years, until June 1979, in the Sacramento County jail. His arrest and detention was illegal since it was based on the police conduct described in Sosa/Delia and summarized in footnote 2, supra.

The incarceration of Hernandez in Sacramento was marked by several events. He began a relationship with a new girl friend, Mickie Ramirez, concerning whom he had sexual fantasies. In May 1979, following a successful suppression hearing at the trial court level, the Sacramento County district attorney announced that Hernandez would be released from jail. This was followed two days later by a statement that the matter would, instead, be appealed, and it would take six months or longer in the appellate courts. Meanwhile threats were made against Mickie's life by Mexican Mafia members. These experiences had followed a five-year prison term from which Hernandez was released in January 1977, some few months before he was arrested on the Delia murder case.

As a result of these pressures, Hernandez decided to turn state's evidence. Thereafter, the district attorney twice arranged for Hernandez and Mickie to have sexual relations. Hernandez was transferred to Tehachapi and Mickie was moved to Bakersfield where her rent and utilities were paid for by the Sacramento County District Attorney's office. His special status continued there.

During the pendency of the Delia case in Sacramento, Fresno County authorities were investigating the unrelated murder of Gilbert Roybal. In July 1980, Darral Kennedy, a Fresno County District Attorney investigator, spoke by telephone with Hernandez at Tehachapi. The conversation was brief and concerned whether the Sacramento County District Attorney would give permission for Hernandez to discuss the Roybal case with Fresno authorities. (Hernandez would not testify without such permission.)

On August 11, 1980, Kennedy again contacted Hernandez but there was no discussion of the Roybal case or any other case.

On October 15, 1980, Kennedy contacted Hernandez a third time. This discussion concerned Hernandez' impending deportation to Mexico upon his release from Tehachapi. Kennedy asked Hernandez to contact him when Hernandez arrived in Mexico if he still wanted to volunteer information. That month Hernandez was released from Tehachapi and deported to Mexico. He was not under parole status or in any other way connected to any official agencies of the United States Government or those of any state.

By post card dated November 5, 1980, Hernandez contacted Kennedy and informed him of his address in Mexico and a telephone number where he could be reached. About December 10, 1980, Hernandez called Kennedy from Mexico and volunteered the information that subsequently he testified to in the preliminary hearing of defendants Sosa, Torres, and Salas, held in Fresno on July 8, 9 and 10, 1981. This information implicated the three defendants in the planning and execution of the killing of Gilbert Roybal. ³

At the preliminary hearing Hernandez stated he returned voluntarily from Mexico to testify and that he had been promised nothing in return for his testimony. The court ruled, however, that Hernandez' testimony was the result of the chain of illegal seizures and inadmissible statements that had begun with the arrests in Southern California of Sosa and Varela, and that but for this illegality, Hernandez would not have remained in custody during the pendency of the Delia trial. The court felt it was this illegally initiated lengthy period of incarceration that led to Hernandez' decision to turn and to testify and, therefore, the court granted the motion to suppress Hernandez' testimony.

B. WAS THERE SUFFICIENT ATTENUATION BETWEEN THE ILLEGAL POLICE CONDUCT AND THE TESTIMONY? ⁴

There are three recognized methods by which evidence that is the "fruit of the poisonous tree" may be admissible despite its illegal origins: (1) if there was an independent source for the evidence, (2) if it would have been available due to inevitable discovery, (3) or if the connection between the source and the evidence has been sufficiently attenuated. (See 3 LaFave, Search and Seizure (1978) § 11.4, pp. 612-680.)

The only exception urged in the instant appeal is the third--attenuation. It is urged that Hernandez' decision to testify was an independent act of free will manifested when he returned voluntarily from Mexico to testify at the preliminary examination. This also was urged below, but the trial court appears to have focused instead on the first two exceptions. The court remarked:

"I think the true test is whether or not the evidence is obtained as a product of illegal police activity, and I think the burden is on the People, under the law, to establish once the illegality has been shown that this evidence would have, not might have, but would have, been independently available or would have been inevitably obtained by the police, despite the initial illegality. I think it is only speculation for the Court to say that Mr. Hernandez might have been located by the police. I think that he probably would have. But I still think it's in the area of speculation whether or not he would have finally turned and become cooperative with the police, despite the illegal arrest and the illegal detention following that arrest.

"Therefore, I think the testimony of Mr. Juan Hernandez must be suppressed in its entirety. And that is the order." (Emphasis added.)

We believe the true test is to determine whether the preliminary hearing testimony was an exploitation of police illegality, or the result of an intervening act sufficiently strong to break the causal chain. In making this determination, we balance the public need to keep law enforcement officers who are searching for evidence of wrongdoing within the limits of the law against the public interest in having all relevant evidence admitted in prosecutions of crime.

Although the primary purpose of the exclusionary rule is to deter future unlawful police conduct ⁵ (United States v. Janis (1976) 428 U.S. 433, 446, 96 S.Ct. 3021, 3028, 49 L.Ed.2d 1046), the United States Supreme Court has rejected a "but for" test, declining to suppress evidence "simply because it would not have come to light but for the illegal actions of the police." (Wong Sun v. United States (1963) 371 U.S. 471, 487-488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441.)

The competing consideration which justifies a rejection of the simple "but for" test is that relevant evidence is excluded and society's interest in convicting the guilty is impaired. Thus circumstances can arise in which application of the exclusionary rule "imposes greater cost on the legitimate demands of law enforcement than can be justified by the rule's deterrent purposes." (Brown v. Illinois (1975) 422 U.S. 590, 609, 95 S.Ct. 2254, 2264, 45 L.Ed.2d 416 (conc. opn. of Powell, J.).)

Information illegally obtained then, does not necessarily become sacred and inaccessible. The Supreme Court recognized early on that "as a matter of good sense" sometimes the causal connection between the initial police misconduct and the evidence sought to be used becomes "so attenuated as to dissipate the taint." (Nardone v. United States (1939) 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307.)

Although the trial court apparently failed to undertake the inquiry mandated, the record before us is of sufficient detail and depth from which a determination may be made. It is thus unnecessary to remand to the case for further factual findings. (Brown v. Illinois, supra, 422 U.S. at p. 604, 95...