PEOPLE v. HOOKER

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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. David Warren HOOKER, Defendant and Appellant.

No. B099780.

Decided: June 23, 1997

John Steinberg, Berkeley, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, and Raymund F. Robles, Deputy Attorney General, for Plaintiff and Respondent.

Convicted of first degree murder (Pen.Code, § 187;  count I;  statutory references, unless otherwise noted, are to the Penal Code), arson that caused great bodily injury (§ 451, subd. (a);  count II) and arson of an inhabited structure (§ 451, subd. (b);  count III),1 appellant contends his confession should have been suppressed because (1) it was the product of his arrest without probable cause (2) it was the product of a confederate's involuntary confession and (3) no corpus delicti was proved.   He also contends the trial court (4) improperly restricted cross-examination (5) and wrongly excluded polygraph evidence.   Finally, he contends (6) section 654 requires the dismissal of both arson counts.

We find the contentions without merit and affirm the judgment.

FACTUAL BACKGROUND

There being no insufficiency of evidence claim, the facts may be stated simply.   Our perspective favors the judgment.  (People v. Barnes (1986) 42 Cal.3d 284, 303-304, 228 Cal.Rptr. 228, 721 P.2d 110.)

In April 1993, Thomas Hooker was nearly blind, in the advanced stages of diabetes, had to be regularly taken to the hospital for dialysis, had several toes amputated, and had difficulty moving without assistance.   He lived at 11338 East Avenue in Palmdale with Joy Hooker, his third or fourth wife, and David Hooker (appellant), his 30-year-old adopted son.   Joy and David were constant companions.   They went to dinner and to the gym together.

The Hooker household had acute financial problems.   Mortgage payments were delinquent and foreclosure imminent, utility bills were unpaid, an Internal Revenue Service agent came to collect money, and Mr. Hooker's daughter, Deanne, who lived across the street, had to give them food money and pay some of their bills.

On April 19, 1993, at about 3:45 a.m., Deanne and her husband Robert were awakened by Joy Hooker's pounding on their door, telling them to call 9-1-1.   Robert ran across the street to the Hooker house and saw appellant in the livingroom hosing down a burning loveseat.   There was smoke inside the house, wallpaper had peeled off the walls, and plastic objects had melted.   Robert asked appellant where Thomas Hooker was and appellant said he didn't know.

Robert crawled to Thomas Hooker's bedroom and found him on the floor by the doorway without a pulse.   About five minutes later appellant came to Robert's assistance and both tried to revive Mr. Hooker.   When paramedics arrived they also tried to revive Mr. Hooker and then took him to the hospital.   He died from smoke inhalation.

The fire had been in the living room and a love seat, near the fireplace, had been consumed.   Carpet around the loveseat had been damaged, there was heavy soot and smoke deposits on the ceiling and walls, wallpaper had peeled, plastic had melted, a ceiling smoke detector was lying undamaged on the hallway floor, and exposed smoke detector wiring was heat damaged.

Sheriff's Homicide Investigator Riggs interviewed appellant and Joy Hooker in late April and disbelieved their explanation.

On June 1, 1993, Investigator Riggs asked them to come to the Sheriff's station.   He interviewed each.   First, Joy Hooker, then appellant, confessed to intentionally setting the fire in order to collect insurance money.

DISCUSSION

1. Appellant contends his confession should have been suppressed because it was the product of his arrest without probable cause.

Investigator Riggs began his June 1, 1993, interview by advising appellant of his Miranda rights.   Appellant waived his rights and agreed to talk.   Early in the interview appellant asked Investigator Riggs if he was under arrest and Investigator Riggs said no but he was going to be arrested for arson and murder when the interview was over.   Appellant, throughout this interview, reiterated his account of the accidental fire.   He made no admissions.   At its conclusion, Investigator Riggs formally arrested him for arson and murder.

Investigator Riggs, after advising Joy Hooker of her Miranda rights, then interviewed her.   She also reiterated her account of the accidental fire and made no admissions.   She too was arrested for arson and murder.

About 30 minutes later, Joy Hooker told Investigator Riggs and his partner, Investigator Harris, that she wanted to talk to them, to change her story.   Her confession was tape recorded.

Investigator Riggs then talked to appellant, reminded him of his Miranda rights, and informed him Joy Hooker had confessed to intentionally setting the fire with appellant.   When appellant expressed disbelief, Investigator Riggs played part of the tape.   Appellant then confessed.   His confession was tape recorded.

Prior to trial, appellant moved to suppress his confession as the product of his unlawful arrest (§ 1538.5).   His argument at the suppression hearing, and on appeal, is that his arrest on June 1, 1993, during the first interview was without probable cause, therefore unlawful, and his second interview confession-although after Joy Hooker implicated him in her confession-was the product of his unlawful arrest.

The trial court denied the suppression motion and appellant claims error.   We consider the matter.

 “Probable cause is a ‘particularized suspicion’ (Texas v. Brown (1983) 460 U.S. 730, 742 [103 S.Ct. 1535, 1543, 75 L.Ed.2d 502]);  it is ‘facts that would lead a man of ordinary caution ․ to entertain a strong suspicion [a crime has been committed]’ (Wimberly v. Superior Court (1976) 16 Cal.3d 557, 564 [128 Cal.Rptr. 641, 547 P.2d 417];  italics added.);   ‘probable cause requires only a ․ substantial chance.’  (Illinois v. Gates [1983] 462 U.S. [213,] 243, fn. 13 [103 S.Ct. 2317, 2335, fn. 13, 76 L.Ed.2d 527].)”  (People v. Tuadles (1992) 7 Cal.App.4th 1777, 1783, 9 Cal.Rptr.2d 780.)   It is less than proof beyond a reasonable doubt (Illinois v. Gates, supra, 462 U.S. at p. 235, 103 S.Ct. at pp. 2330-31);  less then a preponderance of the evidence (ibid.);   and less than a prima facie showing (ibid.).

 Merely because “it is possible to imagine ‘[s]ome innocent explanation’ ” does not mean an officer's suspicion is not reasonable.   (People v. Tuadles, supra, 7 Cal.App.4th at p. 1784, 9 Cal.Rptr.2d 780.)

 “Reasonable suspicion may be based not only upon ․ circumstances and conduct ․ but also upon the [officer's] interpretation of and opinion about those circumstances and conduct.   Circumstances and conduct which would not excite the suspicion of the man on the street might be highly significant to an officer [with] extensive training and experience․”  (Ibid.)

 We are satisfied Investigator Riggs had probable cause to arrest appellant during the first June 1, 1993, interview.

Investigator Riggs had been a Sheriff's deputy 25 years and a homicide investigator eight years.   He had the following information:  the Hookers had acute financial problems;  Thomas Hooker had told his nurse (David Creson) he knew Joy and David were having an affair and feared that if he didn't oust them from the house they would kill him;  Joy's ex-husband, Robert Laughton, said Joy had recently told him she was tired of caring for her husband and had thought of ways to get rid of him;  appellant said he had opened both his bedroom door and Joy's bedroom door after the fire had started but there was no smoke or soot in either room;  appellant said he had gone into the hallway during the fire but the temperature there had been 300 degrees and he had no injuries;  the smoke detector had been removed and put on the floor;  appellant said he removed it during the fire to shut it off but his hands were not burned;  although Thomas Hooker was vulnerable and helpless, appellant had made no effort to locate or help him until after his brother-in-law Robert had done so;  several arson investigators informed him the fire was of suspicious not accidental origin;  Investigator Riggs determined the fire had been intentionally set.

2. Appellant contends his confession should have been suppressed because it was the product of a confederate's involuntary confession.

Appellant's contention begins with Joy Hooker's confession which he asserts was involuntary.   Since her confession was not introduced against him at his trial and therefore could not have prejudiced him, his contention does not stop with her confession.   He asserts that his confession “was the product” of her involuntary confession and therefore it was error to admit his confession.   We consider the matter.

The prosecutor argued in the trial court and the Attorney General argues on appeal, that appellant lacked standing to claim a third party's confession was involuntary.   They are mistaken.

 If a defendant asserts a violation of his own rights, he does have standing to claim a third party's confession was involuntary.  (People v. Varnum (1967) 66 Cal.2d 808, 813, 59 Cal.Rptr. 108, 427 P.2d 772;  People v. Douglas (1990) 50 Cal.3d 468, 499, 268 Cal.Rptr. 126, 788 P.2d 640;  People v. Badgett (1995) 10 Cal.4th 330, 343, 41 Cal.Rptr.2d 635, 895 P.2d 877.)

 But, “it is important to recall that defendants must allege a violation of their own rights in order to have standing to argue that testimony of a third party should be excluded because it is coerced.   It is settled that the accused has no standing to object to a violation of another's Fifth Amendment privilege against self-incrimination.   Similarly, a defendant has no standing to complain of violations of another's Fourth Amendment rights.   It is also the rule that defendants lack standing to complain of the violation of another's Sixth Amendment right to counsel.   The right to counsel is a personal right, and a violation of that right cannot ordinarily be asserted vicariously.”  (People v. Badgett, supra, 10 Cal.4th 330, 343-344, 41 Cal.Rptr.2d 635, 895 P.2d 877.)

 Unlike when a defendant claims his own confession was involuntary (when the burden is on the People to prove voluntariness by a preponderance of the evidence, People v. Badgett, supra, 10 Cal.4th 330, 348, 41 Cal.Rptr.2d 635, 895 P.2d 877), when he claims a third party's confession was involuntary, the burden of proving improper coercion is upon the defendant.  (People v. Douglas, supra, 50 Cal.3d 468, 500, 268 Cal.Rptr. 126, 788 P.2d 640;  People v. Badgett, supra, 10 Cal.4th 330, 348, 41 Cal.Rptr.2d 635, 895 P.2d 877.)

 And, unlike when a defendant proves his confession was involuntary, thus requiring “the People to demonstrate, in the case of successive confessions or statements, that the ‘taint’ of a first, involuntary statement has been attenuated” (People v. Badgett, supra, 10 Cal.4th at p. 348, 41 Cal.Rptr.2d 635, 895 P.2d 877, italics added), when a defendant proves a third party confession is involuntary he must also demonstrate that a successive confession or statement “was actually tainted thereby.”  (Id. at p. 348, 41 Cal.Rptr.2d 635, 895 P.2d 877.)

Illustrative is People v. Douglas, supra, 50 Cal.3d 468, 268 Cal.Rptr. 126, 788 P.2d 640.   Mexican officials, informed that a person they had arrested, one Hernandez, was wanted by United States authorities in connection with a double murder, attempted to extract his confession by “subjecting him to a 15-20 minute beating,” (id. at p. 497, 268 Cal.Rptr. 126, 788 P.2d 640), threatening even worse treatment, and by telling him they were going to “ ‘take him out to the beach.’ ”  (Ibid.) Hernandez confessed.   Mexican officials told him his signed confession “would not be given to United States officials, but instead would simply be placed in the Mexican police files.”  (Ibid.) Mexican officials then gave Hernandez's confession to United States authorities.

United States authorities brought Hernandez to the United States, arrested him, and before taking him to court for arraignment, told him he was in “ ‘serious trouble,’ ” they wanted to talk to him “ ‘off the record,’ ” and if he cooperated “the charges against him might be reduced.”  (Id. at p. 498, 268 Cal.Rptr. 126, 788 P.2d 640.)   He was not advised of his rights.   “Hernandez's statement conformed closely to the one he had given to the Mexican officials.”  (Ibid.)

A short time later, “Hernandez was granted immunity in exchange for his testimony against defendant.”  (Ibid.)

At trial, Douglas unsuccessfully sought to exclude Hernandez's testimony as involuntary and as the product of earlier involuntary confessions.   In rejecting his claim on appeal, our Supreme Court stated:

“Defendant fails to meet his burden here.   Although he emphasizes the assertedly coerced Mexican confession and the subsequent informal interview between Hernandez and [a California prosecutor], this emphasis misperceives the limited nature of the exclusion recognized for coerced third party testimony.   Because the exclusion is based on the idea that coerced testimony is inherently unreliable, and that its admission therefore violates a defendant's right to a fair trial, this exclusion necessarily focuses only on whether the evidence actually admitted was coerced.   Here, none of the statements made by Hernandez to the Mexican police was introduced at defendant's trial.   Accordingly, defendant can prevail on his suppression claim only if he can show that the trial testimony given by Hernandez was involuntary at the time it was given.”   (Id. at p. 500, 268 Cal.Rptr. 126, 788 P.2d 640;  italics in original;  citations omitted.)

 In arguing that Joy Hooker's confession was involuntary appellant principally relies on a statement made to her by Investigator Harris during the initial June 1, 1993, interview.   He said, “There's a lot of difference in what you intended to happen than what happened.   I mean, if-there is a lot of things that can make that difference, and if your intentions were not for Tom to die and this thing happened, then that needs to be brought out, because it's like Doral [Investigator Riggs] says.   It's a crime but it's not murder.”

The trial court found this statement insufficient to meet appellant's burden of proof.   It was not an influence “such as to overbear [her] will to resist and bring about [a] confession[ ] not freely self-determined.”  (People v. Thompson (1990) 50 Cal.3d 134, 166, 266 Cal.Rptr. 309, 785 P.2d 857.)

Based upon our review of the entire record, we agree.   Pertinent are the following factors:  Joy Hooker continued to deny her guilt after Investigator Harris's comment;  it was 30 minutes later, during an unrelated conversation, that she changed her mind, said she wanted to talk to the investigators, and confessed;  Joy Hooker did not testify Investigator Harris's comment caused her to confess;  Joy Hooker was not a young and inexperienced person whose will might easily be overborne;  the essence of Investigator Harris's comment was accurate-the absence of an intent to kill can make a difference.

As our Supreme Court has recently noted, “investigating officers are not precluded from discussing any ‘advantage’ or other consequence that will ‘naturally accrue’ in the event the accused speaks truthfully about the crime.   The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.”  (People v. Ray (1996) 13 Cal.4th 313, 340, 52 Cal.Rptr.2d 296, 914 P.2d 846.)

Having concluded appellant failed to show Joy Hooker's confession was involuntary, we need not address his contingent claim that his confession was the product of her involuntary confession.

3. Appellant contends his confession should have been suppressed because no corpus delicti was proved.

Appellant correctly asserts that since, if there was no arson there was no murder, the corpus delicti of arson had to be established to admit his confession.

 “The corpus delicti rule requires that the corpus delicti of a crime be proved independently from an accused's extrajudicial admissions․  ‘The corpus delicti of a crime consists of two elements, the fact of the injury or loss or harm, and the existence of a criminal agency as its cause․  Such proof, however, may be circumstantial and need only be a slight or prima facie showing ‘permitting the reasonable inference that a crime was committed.’ ”   (People v. Jennings (1991) 53 Cal.3d 334, 364, 279 Cal.Rptr. 780, 807 P.2d 1009, internal citations omitted.)

As we recently observed:  “For corpus delicti purposes, Jennings makes clear, the evidence need only a create a reasonable inference -‘by no means the only, or even the most compelling [inference]’-that the crime has occurred.  (53 Cal.3d at p. 367 [279 Cal.Rptr. 780, 807 P.2d 1009];  see also People v. Jacobson (1965) 63 Cal.2d 319, 326-327 [46 Cal.Rptr. 515, 405 P.2d 555] [21-month-old child found ‘drowned’ in bathtub];  People v. Martinez (1994) 26 Cal.App.4th 1098, 1105 [31 Cal.Rptr.2d 869] [robbery];  In re Robert P. (1981) 121 Cal.App.3d 36, 38-40 [175 Cal.Rptr. 252] [petty theft, receiving stolen property, and auto tampering];  People v. Wheeldin (1969) 276 Cal.App.2d 744, 748-749 [81 Cal.Rptr. 270] [receiving stolen property];  People v. Barnes (1962) 210 Cal.App.2d 740, 746 [26 Cal.Rptr. 793] [receiving stolen property].)”  (People v. Riccio (1996) 42 Cal.App.4th 995, 1000-1001, 50 Cal.Rptr.2d 52;  see also People v. Martinez (1994) 26 Cal.App.4th 1098, 1104-1105, 31 Cal.Rptr.2d 869, 1 Witkin & Epstein, Cal.Criminal Law (2d ed.1988) §§ 136-140, pp. 152-156.)

 As the trial court noted, there was more than “slight” circumstantial evidence of arson:  “[T]he smoke detector location after the fire was such that an inference could be made ․ that it had been pulled so that it wouldn't warn the occupant of the house.  [¶] Then I have Mr. Westfield's testimony where he testified that he didn't think the angle of the sofa and the fireplace would cause the ember to hop to the sofa․  [¶] That, in his opinion, the fire and love seat were [sic] started with an open flame device and started in more than one area and, in his view, even without the defendant's statements [2 ] the fire was suspicious.”

4. Appellant contends the trial court improperly restricted cross-examination.

 During trial, after Investigator Riggs testified to appellant's confession and the tape of it was played for the jury, defense counsel sought to cross-examine Investigator Riggs about what he had told Joy Hooker before she confessed.   The prosecutor objected on the ground of relevancy.

After considering the matter, the trial court conditionally sustained the objection, ruling:

“I think the way to handle it is this:  once someone-it could be Mr. Hooker, it could be someone else-testifies that those statements of the same kind were made to him, then I'm going to permit you as part of your case to bring back Sergeant Riggs and permit you to examine him on those issues, but until there is testimony that Mr.-the same statements were made to Mr. Hooker, I think they're irrelevant.”

Neither appellant nor anyone else testified Investigator Riggs made the “same statements” to appellant.

Appellant claims his cross-examination of Investigator Riggs was improperly restricted.   Appellant is mistaken.

 “ ‘[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.’ ”  (People v. Sully (1991) 53 Cal.3d 1195, 1219, 283 Cal.Rptr. 144, 812 P.2d 163.)   There was no trial court error.

5. Appellant contends the trial court wrongly excluded polygraph evidence.

 At an Evidence Code section 402 hearing appellant sought to exclude his confession on the ground that, before confessing, he had asked to telephone a public defender.   Investigator Riggs testified there had been no such request.   Appellant sought to have a polygraph examiner testify appellant, during a polygraph examination, had been 99 percent truthful in stating he had made such a request.   Appellant offered to prove that polygraph evidence was now generally accepted in the scientific community.   The trial court excluded the evidence.   Appellant claims error.   We disagree.

Evidence Code section 351.1 provides:

“(a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court, unless all parties stipulate to the admission of such results.

“(b) Nothing in this section is intended to exclude from evidence statements made during a polygraph examination which are otherwise admissible.”

Appellant asserts, notwithstanding this statutory prohibition, he has a due process right to introduce such exculpatory evidence.   At least two cases have considered and rejected this claim:  People v. Kegler (1987) 197 Cal.App.3d 72, 242 Cal.Rptr. 897 (2nd Dist., Div. 7 per Justice Lillie);  In re Aontae D. (1994) 25 Cal.App.4th 167, 30 Cal.Rptr.2d 176 (4th Dist., Div. 1 per Justice Froehlich);  see also People v. Jackson (1996) 13 Cal.4th 1164, 1212, 56 Cal.Rptr.2d 49, 920 P.2d 1254.   We agree with both cases and find appellant's contention without merit.

6. Appellant contends section 654 requires the dismissal of both arson counts.

 Counsel on appeal, relying solely upon “the seminal case of Neal v. State of California (1960) 55 Cal.2d 11 [9 Cal.Rptr. 607, 357 P.2d 839]” 3 contends “[a]ppellant's single act of starting a fire which resulted in the death of Thomas Hooker cannot support convictions of [both] arson ․ and murder.”   Counsel on appeal also chides the Attorney General for responding to his contention with subordinate Court of Appeal authority.

We reject the contention and disapprove of such less than forthright appellate advocacy.   Although Neal-which formulated new punishment guidelines-did set aside an arson conviction, as violative of section 654, that disposition was erroneous as the Supreme Court made clear two years later.  People v. McFarland (1962) 58 Cal.2d 748, 762, 26 Cal.Rptr. 473, 376 P.2d 449 stated, “With respect to the procedure to be followed on appeal where double punishment has been erroneously imposed, it should be stressed that section 654 proscribes double punishment, not double conviction;  conduct giving rise to more than one offense within the meaning of the statute may result in initial conviction of both crimes, only one of which, the more serious offense, may be punished.”   Justice Traynor, the author of Neal, concurred in McFarland.

McFarland 's correction of the Neal error has been consistently followed:  “Since 1962 we have interpreted section 654 to allow multiple convictions arising out of a single act or omission, but to bar multiple punishment for those convictions.”  (People v. Siko (1988) 45 Cal.3d 820, 823, 248 Cal.Rptr. 110, 755 P.2d 294;  see also People v. Rush (1993) 16 Cal.App.4th 20, 30-31, 20 Cal.Rptr.2d 15 (dis.opn.).)

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   The jury hung on an arson special circumstance allegation (§ 190.2, subd. (a)(17)).

2.   Appellant claims the rule prohibits use of any extrajudicial statement by a defendant, even denials of guilt and explanations of innocence, to establish a corpus delicti.   There is some authority for this claim but it is unanalytical and we believe misguided.  (“In addition, both Wigmore & McCormick question the need for the corpus delicti rule itself.”  People v. Denis (1990) 224 Cal.App.3d 563, 570, 273 Cal.Rptr. 724.)   Since exculpatory testimony by an accused may establish corpus delicti (People v. Ramirez (1979) 91 Cal.App.3d 132, 137, 153 Cal.Rptr. 789), and an unsworn guilty plea as well, extrajudicial denials of guilt should be similarly admissible for this purpose.

3.   Miscited by counsel on appeal as Neal v. State (1961 ) 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839.

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs. JOHNSON, J., concurs in the judgment only.

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