People v. Takencareof

• Decision Date: 27 May 1981
• Docket Number: Cr. 4243
• Citation: 174 Cal.Rptr. 112,119 Cal.App.3d 492
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kenny Wayne TAKENCAREOF et al., Defendants and Appellants.

Page 112

174 Cal.Rptr. 112

119 Cal.App.3d 492

The PEOPLE, Plaintiff and Respondent, v. Kenny Wayne TAKENCAREOF et al., Defendants and Appellants.

Cr. 4243.

Court of Appeal, Fifth District, California.

May 27, 1981.

Steve L. Bedient, West Sacramento, John M. Hanley, Sunnyvale, for defendants and appellants.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Nancy Sweet, David F. De Alba and Garrick W. Chock, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

ANDREEN, Associate Justice.

Defendants Kenny Wayne Takencareof and Jeffrey Don Blomdahl appeal from judgments sentencing them to prison for second degree burglary.

The burglary for which they were sentenced was the first of three crimes perpetrated on the same evening against the St. Clair office building in Bakersfield. Two separate entries were made with the intent to commit larceny; finally the building was entered a third time and burned to destroy fingerprints. Several people were involved other than defendants. The burglaries caused minimal loss; the items taken were of little value. The arson, however, caused approximately $200,000 in damage to the structure, $50,000 to $75,000 loss to the contents and great inconvenience to the tenants, with considerable disruption of business.

Defendant Takencareof was suspected of complicity in the crimes. He was picked up and taken to the police department. Fingerprints were taken after the following exchange, described at trial:

"Q (Defense Counsel) You didn't ask his permission to do this (take the prints)?

"A (Bakersfield Police Detective Shockley) I didn't specifically say, 'Can I take your fingerprints', no.

"Q You didn't tell him he had a right to refuse?

"A No.

"Q Okay. You just said in the police station 'I want a set of your prints', or words to that (e)ffect?

"A Something to that (e)ffect, yes."

After comparing Takencareof's prints with latents taken inside the office building, Shockley advised Takencareof that the prints appeared similar. Takencareof conceded that they did look like the same fingerprints.

Following a Miranda advisement, Takencareof waived his rights and was interrogated. At first he denied complicity, but when told that the lab technician was on the way to the department to compare the fingerprints, Takencareof stated that he "would go for the burglary, but had nothing to do with the fire." Although Detective Shockley was acting in a good faith belief that the prints matched, subsequent analysis by a technician determined that they did not.

The two defendants were charged with two counts of burglary and one of arson, all of the same office building.

During trial, Takencareof withdrew his plea of not guilty to the first count of burglary and entered of plea of guilty. The jury acquitted him of the other two counts. Blomdahl was found guilty of the same count of burglary; the jury was unable to arrive at a verdict as to the other two counts. A mistrial was declared as to these two counts, followed by a dismissal in the interest of justice.

TAKENCAREOF'S CONFESSION

Takencareof made a motion to suppress his confession at trial, which was denied.

As we understand the contention made in the trial court and on appeal, it is that Detective Shockley did not have probable cause to arrest Takencareof, so the confession should be suppressed.

At the outset we must address the threshold issue of whether the motion to suppress should have been raised in a pretrial motion.

Although it is true that as a general rule a defendant may move to suppress a confession when offered by the People during trial (People v. Superior Court (Zolnay) (1975) 15 Cal.3d 729, 125 Cal.Rptr. 798, 542 P.2d 1390), the rule is unavailable where the confession is the product of an unlawful seizure. This follows because an unlawful detention is a seizure of the person in violation of the Fourth Amendment (Dunaway v. New York (1979) 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824; People v. Richards (1977) 72 Cal.App.3d 510, 140 Cal.Rptr. 158) and section 1538.5 is the proper means of raising a question involving seizure. (People v. Massey (1976) 59 Cal.App.3d 777, 130 Cal.Rptr. 581.)

The motion to suppress should have been raised before trial. (Pen. Code, § 1538.5.) Unless the opportunity for the motion did not exist or the defendant was unaware of the grounds for the motion, there is no right to make such a motion during trial. (Pen.Code, § 1538.5, subd. (h).) ¹ There is nothing in the record to indicate that defense counsel was unaware of the grounds before trial or that he had no opportunity to make the motion earlier. A court which hears such a motion at trial when neither exception exists is not merely acting in excess of its power; it is acting in excess of its jurisdiction. (See generally, People v. Superior Court (Edmonds) (1971) 4 Cal.3d 605, 94 Cal.Rptr. 250, 483 P.2d 1202.) The fact that the district attorney did not object to the procedure is irrelevant.

Since the requirements of Penal Code section 1538.5, subdivision (h), were not met, the issue is not cognizable upon appeal. ²

FACTORS CONSIDERED WHEN TAKENCAREOF SENTENCED

Although Takencareof was acquitted of the arson charge, the court clearly considered damage caused by the arson at the sentencing hearing. The court sentenced Takencareof as follows: "... probation will be denied, because the offense involved multiple victims, substantial loss to a large law firm, Mr. Siegel's business was destroyed, lives disrupted...." ³

Since neither of the two burglaries caused substantial damage, the reasons given by the judge for the sentencing (substantial loss to a law firm, destruction of a business and lives disrupted) must mean that the court was relying on the sequelae of the arson when making its sentencing choice. The court did not state why it did not feel bound by the jury's verdict of not guilty of the arson charge. We assume it was because the court believed that it should apply a different standard of proof to the sentencing determination. Whether this is appropriate is a matter of first impression. We address the issue of the proper standard preponderance of the evidence or proof beyond a reasonable doubt to be used in such a circumstance.

California Rules of Court, rule 439(b), provides that the preponderance of evidence standard should be used when determining whether circumstances in aggravation or mitigation have been established in order to determine whether the upper or lower term of imprisonment should be selected. ⁴ This is constitutionally permissible. (People v. Nelson (1978) 85 Cal.App.3d 99, 103-104 149 Cal.Rptr. 177; People v. Ramos, supra, 106 Cal.App.3d 591, 605-606, 165 Cal.Rptr. 179.) By analogy, it would appear that the same standard should be used in determining whether to sentence to prison. Proof by a preponderance of the evidence is the standard in the absence of a statute or decisional law to the contrary. (Evid.Code, § 115.)

In People v. Fulton (1979) 92 Cal.App.3d 972, 976-977, 155 Cal.Rptr. 327 it was held that a charge in a multi-count indictment on which the jury could not agree was properly used in aggravation. The rationale of the case was that under subdivision (b) of section 1170 of the Penal Code the sentencing court is entitled to look at the whole record of the case. In a footnote the court stated, "We do not here consider a case in which a jury has acquitted on the charge used as an aggravation." (Id., at p. 976, fn. 1, 155 Cal.Rptr. 327.)

We are now confronted with the question which was reserved in Fulton. We believe that in those cases where the defendant has not previously been restrained of his freedom by state action, and the trier of fact has found him not guilty of a count in a multiple count prosecution, the same standard of proof of beyond a reasonable doubt should apply to both conviction and sentencing.

It would be anomalous to hold that if the jury finds the defendant not guilty of a count utilizing the constitutionally exacting standard of proof beyond a reasonable doubt, he should face the same alleged crime at sentencing under a preponderance of evidence standard.

We are unprepared to hold that two standards operate simultaneously in a case where a defendant is acquitted. Such a holding would be ludicrous. A defendant who won a victory at the hands of the jury could nevertheless be subjected to a more harsh sentence if he was contemporaneously found guilty of another crime in the same case.

This reasoning is consistent with the holding in People v. Richards (1976) 17 Cal.3d 614, 131 Cal.Rptr. 537, 552 P.2d 97, which disapproved of a restitution order to a victim in a purported crime of which the defendant was acquitted. The words of the court are appropriate here: "In the course of convincing a jury to doubt his guilt on one charge, a defendant should not have the additional task of persuading the judge regarding the subsequent sentencing disposition on other charges." (Id., at p. 624, 131 Cal.Rptr. 537, 552 P.2d 97.)

The above reasoning is unaffected by the holdings in In re Coughlin (1976) 16 Cal.3d 52, 127 Cal.Rptr. 337, 545 P.2d 249 and In re Dunham (1976) 16 Cal.3d 63, 127 Cal.Rptr. 343, 545 P.2d 255. In Coughlin the defendant was acquitted of burglary in the municipal court. Later, there was a hearing in superior court to determine whether his probation should be revoked. He was on probation following convictions of burglary and receipt of stolen property. (Pen.Code, §§ 459, 496.) It was held that evidence tending to prove that the defendant was guilty of the burglary could be admitted at the probation revocation hearing without violating due process principles or the proscription against double jeopardy. The reasoning of the court was that Penal Code section 1203.2, subdivision (a), authorizes revocation of probation when the court has reason to believe that he has violated any of the...