People v. Trudell

• Decision Date: 04 November 1985
• Citation: 219 Cal.Rptr. 679,173 Cal.App.3d 1221
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Fredrick Steven TRUDELL et al., Defendants and Appellants. A020524.

Page 679

219 Cal.Rptr. 679

173 Cal.App.3d 1221

The PEOPLE of the State of California, Plaintiff and Respondent, v. Fredrick Steven TRUDELL et al., Defendants and Appellants.

A020524.

Court of Appeal, First District, Division 4, California.

Nov. 4, 1985.

Review Denied Jan. 23, 1986.

Thomas W. Perley, Berkeley, Jaime Alcabes, Oakland, for defendants and appellants.

John K. Van de Kamp, Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

ANDERSON, Presiding Justice.

Appellants Fredrick Steven Trudell (Trudell) and Robert Carls Huie (Huie) were charged in an eight-count information with two counts of kidnapping (PEN.CODE, § 207 )¹, three counts of forcible rape ( s261, subd. (2)), two counts of oral copulation ( s288a), and one count of burglary ( s459). It was further alleged that in commission of the sex offenses the appellants acted in concert ( s264.1), and that in commission of the kidnap and sex offenses Trudell personally used a firearm ( s12022.5) and Huie was armed ( s12022, subd. (a)). Following denial of their motions to suppress evidence appellants pled guilty as charged. The court sentenced Trudell to 21 years in state prison and sentenced Huie to 20 years and 8 months in prison.

Huie's appointed counsel has filed an opening brief which raises no specific issues. Huie has filed a supplemental opening brief in which he contends that the court erred in denying his motion to suppress evidence and in enhancing his sentence for firearm use. He also asserts incompetence of appellate counsel. Trudell contends that the court erred in denying his motion to suppress evidence. We affirm the judgments as to both appellants.

I FACTS

The charges against appellants arose out of three separate incidents: The kidnapping and rape of Kay S. on January 21, 1982; the burglary of a jewelry store on January 23, 1982; and the kidnapping and rape of Traci B. on March 22, 1982. Appellants were arrested following the Traci B. incident and their motions to suppress challenged the legality of those arrests. Because appellants pled guilty, the facts of the offenses are unnecessary to resolution of the issues on appeal and we need consider only the facts relating to the arrests.

The evidence at the suppression hearing showed that between 7 and 8 a.m. on March 22, 1982, 14-year-old Traci B. was walking toward the bus stop on her way to school when she was kidnapped at gunpoint and forcibly raped. A T-shirt with Trudell's name on it was found at the scene. At about 1:30 that afternoon, Detective James A. McClellan was assigned to investigate the case. McClellan had the names and descriptions of the two suspects, a description of their car, and the address of one suspect, Huie. McClellan went to Huie's residence to conduct a surveillance. At about 3 p.m. he observed Huie drive away in an automobile. Huie's physical description and clothing matched those of one of the suspects and his automobile resembled the automobile used in the offense.

McClellan followed Huie to an Alpha Beta store in Newark and parked next to him. As Huie walked to the back of his car, McClellan approached him. He identified himself as a police officer and requested Huie's identification. He then informed Huie that he wanted to talk with him about his activities that morning. McClellan advised Huie of his constitutional rights. At McClellan's request, Huie granted permission to search his vehicle for weapons. A visual search revealed a green fatigue jacket and a dark blue jacket with a security patch on the shoulder, clothing matching that worn by the perpetrators. Within 10 minutes of his detention, Huie confessed, implicating Trudell as well. Huie stated that Trudell was staying at his brother's residence on Hoyt Street in Fremont.

Officer Gary Duthler and another officer proceeded to the Hoyt Street residence to conduct a surveillance. At approximately 5:40 p.m. a car pulled up in front of the residence and a male fitting Trudell's description got out and entered the house. Duthler stopped the vehicle. The driver, Trudell's mother, stated that it was Trudell Duthler returned to the residence intending to arrest Trudell. Once there, he was informed by radio that Trudell was on the telephone to the police department, asking if he was wanted. Duthler advised the radio technician to tell Trudell to step outside the residence. Trudell told the technician that he would do so.

who had just entered the Hoyt Street residence.

When Trudell did not leave the residence after about five minutes, Duthler asked the radio technician to attempt to contact him and ask him to come out, but she was unable to complete the call. Trudell was seen pulling down the window shades of the house.

Officer Duthler approached the front door, knocked and called out for Trudell. Receiving no response, he returned to his automobile and used a public announcement system to call to Trudell. He "announced [he] was a police officer.... [He] called him out by name and ordered him out from the residence, and when he came out to keep his hands in plain view." After three or four announcements, appellant came out of the residence and was placed under arrest. When appellant exited the residence at least five officers were at the scene. Some of the officers had their weapons drawn.

II DISCUSSION

Huie's Appeal

A. Motion to Suppress

Relying on Dunaway v. New York (1978) 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 and People v. Davis (1981) 29 Cal.3d 814, 176 Cal.Rptr. 521, 633 P.2d 186, Huie argues that he was arrested without probable cause. Because Huie's confession provided ample probable cause for his arrest, we take his argument to mean that Officer McClellan lacked probable cause to interrogate him, the argument Huie's trial counsel made at the suppression hearing below. This contention is meritless.

In Dunaway the police, without probable cause, took the defendant into custody, transported him to the police station, and detained him there for interrogation. (Dunaway v. New York, supra, 442 U.S. at pp. 206-207, 99 S.Ct. at pp. 2253-2254.) The court held that for Fourth Amendment purposes this seizure was an "arrest" requiring probable cause. (Id., at p. 216, 99 S.Ct. at p. 2258.) In People v. Davis, supra, 29 Cal.3d 814, 176 Cal.Rptr. 521, 633 P.2d 186, our Supreme Court distinguished Dunaway on grounds that defendant Davis had voluntarily gone to the police station for questioning in response to a telephone request. (Davis, supra, at pp. 820-822, 176 Cal.Rptr. 521, 633 P.2d 186.)

The Dunaway principle is inapplicable to the present case. Appellant was not taken into custody and transported, but was questioned in the public place "where he was found." (See Dunaway v. New York, supra, 442 U.S. at p. 212, 99 S.Ct. at p. 2256.) Officer McClellan unquestionably had the reasonable suspicion necessary to justify Huie's detention. (In re Tony C. (1978) 21 Cal.3d 888, 148 Cal.Rptr. 366, 582 P.2d 957.) His questioning of Huie, lasting approximately 10 minutes before Huie confessed, was a valid concomitant of the investigative stop. (See United States v. Brignoni-Ponce (1975) 422 U.S. 873, 881-882, 95 S.Ct. 2574, 2580-2581, 45 L.Ed.2d 607; Terry v. Ohio (1968) 392 U.S. 1, 34, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889 [concurring opn. of White, J.]; see also People v. Harris (1975) 15 Cal.3d 384, 389, 124 Cal.Rptr. 536, 540 P.2d 632 [1b]; People v. Paz (1981) 118 Cal.App.3d 332, 334-335, 173 Cal.Rptr. 272.) Denial of Huie's motion to suppress was not error.

B. Sentence Enhancement

Huie was sentenced to 20 years and 8 months in state prison, as follows:

Count V (Traci B. rape in concert)--the aggravated term of 9 years ( s264.1) plus 1 year for being armed ( s12022, subd. (a));

Count III (Kay S. rape in concert)--the aggravated term of 9 years ( s264.1) plus 1 year for being armed ( s12022, subd. (a)), to run consecutive to the term imposed on count V;

Count VIII (second degree burglary)--one-third the midterm of 2 years or 8 months ( §§ 18, 461, subd. (2)), to run consecutive to the terms imposed on counts V and III.

Relying on People v. Mota (1981) 115 Cal.App.3d 227, 171 Cal.Rptr. 212, Huie contends that the court erred in adding an arming enhancement to his sentence on the rape counts. Mota is inapposite. The case holds that the 1980 amendment to subdivision (a) of section 1170.1, authorizing enhancement of subordinate terms for robbery with firearm use, cannot be applied to enhance the sentence of a defendant whose offenses predated the amendment. (Id., at p. 235, 171 Cal.Rptr. 212.) Huie's sentence was enhanced pursuant to subdivision (i) of section 1170.1 (formerly subd. (h)), which was enacted in 1979 (Stats.1979, ch. 944, § 12, p. 3259), well before the dates of his offenses.

C. Competence of Appellate Counsel

Huie asserts that his appointed appellate counsel was incompetent for failing to raise the issues of the legality of his arrest and his sentence enhancements. As indicated above, however, the issues are meritless. Counsel fully discharged his responsibilities as set forth in Anders v. California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 and People v. Feggans (1967) 67 Cal.2d 444, 62 Cal.Rptr. 419, 432 P.2d 21. (See also People v. Wende (1979) 25 Cal.3d 436, 438, 442, 158 Cal.Rptr. 839, 600 P.2d 1071.)

D. Wende Review

Because Huie's counsel filed a Wende brief, this court has independently reviewed the record. We conclude that there are no reasonably arguable issues to be raised on appeal.

As indicated, Officer McClellan's investigative detention of Huie was lawful; denial of his motion to suppress therefore was not error.

The trial court was required to sentence Huie consecutively pursuant to section 667.6, subdivision (d), hence no statement of reasons for consecutive sentencing was necessary.

The court stated reasons justifying the aggravated term on the Traci B. count V rape. In imposing the aggravated...