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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Claude Lawrence VANCE, Defendant and Appellant.

Cr. 13969.

Decided: September 14, 1982

Quin A. Denvir, State Public Defender, and Charles M. Bonneau, Deputy State Public Defender, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert D. Marshall and Christine M. Diemer, Deputy Attys. Gen., for plaintiff and respondent.

Claude Lawrence Vance pleaded guilty to forcible rape (Pen.Code1 § 261, subd. (2)), admitting he used a deadly weapon (§ 12022.3, subd. (a)) and inflicted great bodily injury (§ 12022.8). After trial the court found him guilty of assault with intent to commit murder (§ 217) using a deadly weapon (§ 12022, subd. (b)).

The court imposed the upper base term of eight years for rape. Five years for the great bodily injury allegation and three years for the use allegation were added to the base term for a total of sixteen years. A consecutive term of sixteen months was imposed on the assault charge.

On January 1, 1980, Diane I. was walking home at 2 a. m. when Vance approached her, asking if she wanted a ride. She said “no” and continued walking. Vance drove a short distance and stopped. As Diane approached the car, Vance grabbed her and pulled her into a Christmas tree farm. While hidden from view, Vance ripped off some of her clothes. He accomplished several acts of intercourse and forced her to orally copulate him. He was armed with a knife throughout the attack. When Diane attempted to grab the knife, he pulled it away cutting two of her fingers.

After the sexual assault, Vance placed Diane on the ground, removed the rest of her clothing, said he was sorry, and stabbed her in the chest three times.

A motorist picked up Diane and took her to a hospital. At the hospital, she described her assailant to Officer Michael G. Guthrie. In addition to his physical description, she stated he had an odor of paint on his breath and was dressed in blue jeans, a white T-shirt and black leather jacket. She described his automobile as older, possibly a Chevrolet, two-door, black, rounded in the rear. At the scene, the police recovered several items of women's clothing, a broken gold watch and a man's blue denim cap.

On January 2, 1980, at 4:48 p. m., Officer Patrick O'Donnell, aware of the car's description from a radio broadcast, saw a similar car. The driver did not stop because of any action by the officer, but stopped for reasons of his own. When the driver left the car, O'Donnell approached him with weapon drawn and asked for and received identification. The driver was Vance. After patting Vance down, O'Donnell put away his weapon.

Vance gave O'Donnell permission to search his vehicle where one or two cans of spray paint were found. Vance was taken to the police station by Officer Dan Castro. Alfredo Valladores drove Vance's car to the police station at Officer Castro's request.2

At 5 p. m., Detective Gary Snow interviewed Vance, first giving him the Miranda warning. Vance made two exculpatory statements before he made a statement telling “what really happened.”

The statement Vance made as related by Detective Snow is:

“He said he wanted to tell me what actually happened. He said that he didn't know why he did it; he just went somewhat crazy. He said that he couldn't remember a lot of what happened. He said he was high on paint․

I asked him if he was actually able to have sex with the girl, and he stated no, that he had a little too much to drink and he couldn't get his—as he said, his nut off, and at one point I had asked him if he had taken her out into this field, and he said, ‘Yes.’ I asked him, ‘How far?’ He said, ‘Just a short distance.’ He couldn't remember exactly how far. I had asked him what kind of knife he had, and he said it was his knife, and it was kind of like a buck knife.

I had asked him why he had had to stab the girl, and his reply a couple of times to that question was that he didn't want to get in trouble, that's why he did it․”

Vance urges the court to conclude this statement is a confession. The People urge the statement be designated an admission. The reason for their respective positions is well expressed in People v. McClary, 20 Cal.3d 218 at page 230, 142 Cal.Rptr. 163, 571 P.2d 620:

“Under present rules for determining the existence of prejudicial error, the improper introduction of a confession is considered reversible per se [[[[citations], whereas wrongful introduction of an admission is deemed prejudicial unless the People show beyond a reasonable doubt that the error complained of did not contribute to the verdict [citations].”

We conclude this statement is appropriately characterized an admission.

“A confession is defined as ‘a complete and express acknowledgement of the crime charged’ [citation], a statement in which the defendant ‘disclos[es] his guilt of the charged offense and which exclud[es] the possibility of a reasonable inference to the contrary.’ [Citations.] However, when the statement contains facts which amount to a claim of mitigation, justification or excuse, it is an admission rather than a confession. [Citations.]” (People v. Maynarich, 83 Cal.App.3d 476 at page 481, 147 Cal.Rptr. 823.)

Vance's statement encompasses both the rape and assault with intent to commit murder.

Vance was asked if he was actually able to have sex with the girl. Whether this question referred to vaginal intercourse, anal intercourse, or oral copulation is unclear. His response that “he couldn't get his nut off” offers no elucidation. Clearly this is not a complete or express acknowledgement he committed the crime of rape. Vance also said he went somewhat crazy; he couldn't remember; he was high on paint; he had a little too much to drink. These statements were in addition to his response that he had stabbed the girl “because he didn't want to get in trouble.” These phrases in mitigation and excuse could negate the required specific intent to commit murder as well as express malice. (See People v. Vasquez (1972) 29 Cal.App.3d 81, 86-87, 105 Cal.Rptr. 181).

The Attorney General asks us to review the trial court's determination that no probable cause existed to arrest Vance (§ 1252).

The trial court conducted an evidentiary hearing pursuant to a motion to suppress. By stipulation, the court considered the transcript of the preliminary examination in determining the motion to suppress. No witnesses were called by Vance or the People. The appellate court is compelled to resolve all factual conflicts in a manner most favorable to the court's disposition of the motion. (People v. Rios, 16 Cal.3d 351, 357, 128 Cal.Rptr. 5, 546 P.2d 293.)

The victim provided a description of her assailant and the automobile he was driving. From a radio dispatch, Officer O'Donnell received a description of an automobile and an individual. The superior court concluded there was a gap in the identification procedure because O'Donnell did not testify concerning the information he received from the broadcast regarding the suspect. Without a more specific identification, O'Donnell lacked probable cause to arrest. The People failed to meet their burden of proof in establishing probable cause to arrest. (Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23.) There is substantial evidence to support this finding.

Vance was arrested without probable cause while driving an older black automobile which closely matched the description of a vehicle being sought.

As Vance left his auto, he was stopped by an officer who identified himself and stated the reason he wished to speak to him. The officer had drawn his weapon but put it away after he patted Vance down.

Within two minutes after the stop, three additional units with four officers arrived. One of those units left immediately. After receiving permission, O'Donnell searched the auto. Vance was taken to the police station in the back of a police car.

The initial stop occurred at 4:48 p. m. At 5 p. m., Vance was being interrogated by Detective Gary Snow. After the Miranda warning, Vance agreed to speak to the officer. Initially he said he was at the Oasis bar until closing time on New Year's Eve. He took a friend home and returned to the Oasis where he was robbed by two Mexican males who took his watch. He did not report the robbery to the police but called his common-law wife who picked him up at 4:30 a. m. and took him home.

Detective Snow stopped the questioning, placed Vance in a holding cell and said he was going to investigate further. The officer asked Vance's common-law wife, Victoria Rodriguez, to come to the police station. After she arrived, Ms. Rodriguez identified a gold watch and hat as belonging to Vance. Vance's friends, Juan Alcorta and Alfredo Valladores, also identified the items as belonging to Vance.

After speaking with Ms. Rodriguez, Alcorta and Valladores, Detective Snow reminded Vance of his Miranda rights and asked if he was willing to answer some additional questions. Vance said yes. Snow asked about Vance's whereabouts on New Year's Eve and received basically the same response Vance had earlier given. Vance identified the gold watch and hat as his, stating he must have lost the cap during the robbery.

Snow told Vance he thought Vance was responsible for the assault and rape because his description matched the description of the assailant, he felt the victim would be able to recognize her assailant, and his car matched the description given by the victim. He explained the watch and cap which Vance identified as belonging to him were found at the scene of the assault.

Vance asked to speak to Ms. Rodriguez alone. After he spoke to her for ten minutes, he told the officer what actually happened. He gave his statement within two hours after his arrest.

“The question whether a confession is a product of a free will under Wong Sun [371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441], must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test. The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances …, and particularly, the purpose and flagrancy of the official misconduct are all relevant. [Citation.] The voluntariness of the statement is a threshhold requirement. [Citation.] And the burden of showing admissibility rests, of course, on the prosecution.” (Brown v. Illinois, 422 U.S. 590 at pages 603 to 604, 95 S.Ct. 2254 at pages 2261 to 2262, 45 L.Ed.2d 416; fns. omitted.)

The case at bar must be reviewed in light of Brown v. Illinois, supra, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416, Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824, Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982), and People v. DeVaughn, 18 Cal.3d 889, 135 Cal.Rptr. 786, 558 P.2d 872.

We acknowledge the People bear the burden of proving a break in the causative chain from the illegal arrest to the admissions. We are also aware of the limited role of an appellate court in reviewing the determinations of the trial court as a trier of fact in section 1538.5 proceedings. (People v. Rios, supra, 16 Cal.3d 357, 128 Cal.Rptr. 5, 546 P.2d 293.)

In Brown v. Illinois, supra, 422 U.S. at page 604, 95 S.Ct. at page 2262, footnote 10, the United States Supreme Court points out its approach to the attenuation issue “relies heavily, but not excessively, on the ‘learning, good sense, fairness, and courage of federal trial judges.’ Nardone v. United States, 308 U.S. 338, 342 [60 S.Ct. 266, 268, 84 L.Ed. 307] … (1939).” This observation is equally true when speaking of state trial judges. It is the trial judge who determines credibility of witnesses, weighs the evidence, resolves conflicts in testimony and draws appropriate factual inferences.

On appeal, all presumptions favor the exercise of such power and the trial court's findings must be upheld if they are supported by substantial evidence (People v. Rios, supra, 16 Cal.3d 351, 357, 128 Cal.Rptr. 5, 546 P.2d 293).

We conclude the record supports a finding the admission by Vance was not a product of the illegal arrest.

Although a confession may be voluntary for Fifth Amendment purposes, a proper Miranda warning is not per se sufficient to purge the taint of an illegal arrest. However, the Miranda warning is an important factor and the threshold requirement to move from Fifth Amendment to Fourth Amendment analysis. Vance does not complain he was not appropriately informed of his rights pursuant to Miranda.

The United States Supreme Court identified the following additional factors to be considered in deciding whether a confession has been purged of the taint of the illegal arrest: “The temporal proximity of the arrest and the confession, the presence of intervening circumstances …, and, particularly, the purpose and flagrancy of the official misconduct.” (Brown v. Illinois, supra, 422 U.S. at pp. 603-604, 95 S.Ct. at pp. 2261-2262.)

In Brown v. Illinois, supra, Dunaway v. New York, supra, and Taylor v. Alabama, supra, the police arrested suspects without probable cause. The suspects were transported to a police station, Mirandized and interrogated. In Brown and Dunaway, the suspects confessed within two hours. In Taylor, the suspect confessed within six hours. Vance's confession coming within two hours of his illegal arrest makes his case similar to Brown and Dunaway.

The United States Supreme Court in Taylor v. Alabama, supra, 102 S.Ct. 2664, concludes:

“This case is a virtual replica of both Brown and Dunaway. Petitioner was arrested without probable cause in the hope that something would turn up, and he confessed shortly thereafter without any meaningful intervening event.” (Id. 102 S.Ct. at p. 2668.)

We conclude there occurred at least two meaningful intervening events between Vance's arrest and his inculpatory statement.

The first is the confrontation of Vance with information which tied him to the crimes. Specifically he was told his physical description and the description of his automobile closely matched the description given by the victim. He was told the person who committed the crime was supposed to be under the influence of paint. He was informed the hat and watch he identified as belonging to him were found at the scene of the crimes. None of this information was obtained as a result of the illegal arrest. Rather, it was information gathered through legitimate police channels.

After this information was relayed to Vance, he asked to speak privately with Ms. Rodriguez. This request was granted and after 10 minutes she left. At this time, Vance said to Snow, “I want to tell you what happened.”

It is significant Vance requested the meeting after he was confronted with information implicating him. The information from the police, the conference with Victoria Rodriguez and the inculpatory statement occurred in a sequence which supports an inference that Vance considered his predicament, spoke to his wife and then decided to tell the truth.

Vance was not subject to continuous interrogation, fingerprinted or placed in a lineup. Vance was interrogated for 10 to 15 minutes, followed by a hiatus of 45 minutes. He was questioned for 10 to 15 more minutes before he asked to speak to Ms. Rodriguez. After 10 minutes, he made his statement to the police. This type of police activity cannot be termed purposeful or flagrant. It is not the type of police action which led the Supreme Court to conclude: “The manner in which the arrest was effected gives the appearance of having been calculated to cause surprise, fright, and confusion.” (Brown, supra, 422 U.S. at p. 605, 95 S.Ct. at p. 2262.)

The admissions did not follow within minutes of the illegal arrest (see People v. DeVaughn, supra, 18 Cal.3d 889, 135 Cal.Rptr. 786, 558 P.2d 872.), but occurred within two hours of the arrest. The Miranda warning was properly given and reiterated before the officer questioned Vance. Vance consented each time to speak with the officers. There is no indication of any police misconduct. Vance chose to recant his original statements only after the police presented information connecting him to the crimes and he spoke to Victoria Rodriguez. All of these factors support the conclusion there was no causal connection between the arrest and Vance's statements.

“In order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken, Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be ‘sufficiently an act of free will to purge the primary taint.’ [Citation.]” (Brown v. Illinois, supra, 422 U.S. 590, 601-602, 95 S.Ct. 2254, 2260-2261, 45 L.Ed.2d 416.)

We conclude beyond a reasonable doubt the admissions by Vance were sufficiently an act of free will to purge the primary taint.

Vance argues his admission of great bodily injury as an enhancement to his plea of guilty to rape (§ 261, subd. (2)) precludes punishment on the assault count. He contends the enhancement was for the identical stabbing which underlies the conviction for the assault with intent to commit murder.

Concerning the rape charge, Vance pleaded guilty and admitted the allegation of great bodily injury. By stipulation, the transcript of the preliminary examination was admitted to provide a factual basis for the change of plea. During the rape, the victim received cuts to two fingers on each hand. She testified at the preliminary examination, “Well, I have three fingers that won't straighten out all the way right now.” She testified at trial, “Three of my fingers don't work properly. I mean they work well, but they don't move like they used to.” She did not have full use of her fingers at trial, which was six months after the offense. Such an injury is of a protracted nature and fits the definition of great bodily injury. (People v. Caudillo, 21 Cal.3d 562, 588-589, 146 Cal.Rptr. 859, 580 P.2d 274.) The injury to her fingers supports the allegation of great bodily injury as an enhancement to the rape count.

The chest, abdominal and shoulder wounds were inflicted after the rape and during the commission of the assault. The multiple stab wounds to the torso support the conviction of assault with intent to commit murder. Clearly, they are not the same injuries which support the great bodily injury allegation of the rape charge.

Before imposing consecutive sentences, the court considered a series of letters, the probation report, oral testimony, a letter from a psychiatrist and argument from counsel.

The court considered and specifically rejected intoxication as a circumstance in mitigation. The court is required to weigh this factor along with other relevant circumstances before making the decision. (People v. Simpson, 90 Cal.App.3d 919, 927, 154 Cal.Rptr. 249.)

The trial court did not specifically mention the early admission of wrongdoing. However, it is also the rule that, unless the record affirmatively reflects otherwise, the trial court will be deemed to have considered the relevant criteria, such as mitigating circumstances enumerated in the sentencing rules. (People v. Jackson (1980) 103 Cal.App.3d 635, 639, 163 Cal.Rptr. 115.)

On this record, it is clear the court considered the mitigating factors but concluded they were outweighed by the factors in aggravation.

Judgment affirmed.



FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.  There is some suggestion in the record that Vance voluntarily agreed to accompany the police to the police station for the purpose of taking elimination photos and having his car checked out.

BORUNDA,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

BROWN, P. J., and COLOGNE, J., concur.